VII.

Legal Separation
Cases

A. Article 55 FC, Article 57 Civil Code

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. GUADALUPE ZAPATA and

DALMACIO BONDOC, defendants-appellees. First Assistant Solicitor General Roberto A.
Gianzon and Solicitor Jaime de los Angeles for appellant. Francisco M. Ramos and Moises
Sevilla Ocampo for appellee Dalmacio Bondoc. Hernandez and Laquian for appellee Guadalupe
Zapata.
PADILLA, J.: In the Court of First Instance of Pampanga a complaint for adultery was filed by
Andres Bondoc against Guadalupe Zapata, his wife, and Dalmacio Bondoc, her paramour, for
cohabiting and having repeated sexual intercourse during the period from the year 1946 14
March 1947, the date of the filing of the complaint, Dalmacio Bondoc knowing his codefendant
to be a married woman (criminal case No. 426). The defendant wife entered the plea of guilty
and was sentenced to suffer four months of arresto mayor which penalty she served. In the
same court, on 17 September 1948, the offended husband filed another complaint for adulterous
acts committed by his wife and her paramour from 15 March 1947 to 17 September 1948, the
date of the filing of the second complaint (criminal case No. 735). On 21 February 1949, each of
the defendants filed a motion to quash the complaint of the ground that they would be twice put
in jeopardy of punishment for the same offense. The trial court upheld the contention of the
defendants and quashed the second complaint. From the other sustaining the motions to quash
the prosecution has appealed.
The trial court held that the adulterous acts charged in the first and second complains must be
deemed one continuous offense, the defendants in both complaints being the same and
identical persons and the two sets of unlawful acts having taken place continuously during the
years 1946, 1947 and part of 1948, and that the acts or two sets of acts that gave rise to the
crimes of adultery complained of in both cases constitute one and the same offense, within the
scope and meaning of the constitutional provision that "No person shall be twice put in jeopardy
of punishment for the same offense.".
Adultery is a crime of result and not of tendency, as the Supreme Court of Spain has held (S. 10
December 1945); it is a instantaneous crime which is consummated and exhausted or
completed at the moment of the carnal union. Each sexual intercourse constitutes a crime of
adultery (Cuello Calon, Derecho Penal, Vol. II, p. 569). True, two or more adulterous acts
committed by the same defendants are against the same person the offended husband, the
same status the union of the husband and wife by their marriage, and the same community
represented by the State for its interest in maintaining and preserving such status. But this
identity of the offended party, status society does not argue against the commission of the crime
of adultery as many times as there were carnal consummated, for as long as the status remain
unchanged, the nexus undissolved and unbroken, an encroachment or trespass upon that
status constitutes a crime. There is no constitutional or legal provision which bars the filing of as
many complaints for adultery as there were adulterous acts committed, each constituting one
crime.
The notion or concept of a continuous crime has its origin in the juridical fiction favorable to the
law transgressors and in many a case against the interest of society (Cuello Calon, Derecho
Penal, Vol. II, p. 521). For it to exist there would be plurality of acts performed seperately during
a period of time; unity of penal provision infringed upon or violated; and unity of criminal intent or
purpose, which means that two or more violations of the same penal provision are united in one
and the same intent leading to the perpetration of the same criminal purpose or aim (Ibid. p.
520).In the instant case the last unity does not exist, because as already stated the culprits
perpetrate the crime in every sexual intercourse and they need not to another or other
adulterous acts to consummate it. After the last acts of adultery had been committed as charged
in the first complaint, the defendants again committed adulterous acts not included in the first
complaint and for which the second complaint was filed. It was held by the Supreme Court of
Spain that another crime of adultery was committed, if the defendants, after their provincional
release during the pendency of the case in which they were sent to prison to serve the penalty
imposed upon them(S. 28 February 1906; 76 Jur. Crim. pp. 208-210).
Another reason why a second complaint charging the commission of adulterous acts not
included in the first complaint does not constitute a violation of the double jeopardy clause of the
constitution is that, if the second places complaint the defendants twice in jeopardy of
punishment for the same offense, the adultery committed by the male defendant charged in the
second complaint, should he be absolved from, or acquitted of, the first charge upon the
evidence that he did not know that his codefendant was a married woman, would remain or go
unpunished. The defense set up by him against the first charge upon which he was acquitted
would no longer be available, because at the time of the commission of the crime charged in the
second complaint, he already knew that this defendant was a married woman and he continued
to have carnal knowledge of her. Even if the husband should pardon his adulterous wife, such

pardon would not exempt the wife and her paramour from criminal liability for adulterous acts
committed after the pardon was granted because the pardon refers to previous and not to
subsequent adulterous acts(Viada [5th ed.] Vol. 5, p. 208; Groizard [2nd ed.] Vol. 5, pp. 57-58).
The order appealed from, which quashed the second complaint for adultery, is hereby reversed
and set aside, and trial court directed to proceed with the trial of the defendants in accordance
with law, with costs against the appellees. Feria, Pablo, Tuason and Jugo, JJ., concur. Paras,
C.J., Bengzon and Montemayor, JJ., concur in the result. Paras, C.J., Mr. Justice Reyes voted
for the reversal.

FELICIDAD P. MUOZ vs. JOSE DEL BARRIO. FELICIDAD P. MUOZ, petitioner and
appellant, vs. JOSE DEL BARRIO, respondent and appellee. APPEAL from a judgment of the
Court of First Instance of Bulacan. Ysip, J. . Manuel Y. Macias for petitioner and appellant. Jose
del Barrio in his own behalf as respondent and appellee.
FELIX, J.: Felicidad P. Muoz and Jose del Barrio were married civilly before Judge Natividad
Almeda Lopez of the Municipal Court of Manila on September 24, 1942 and again canonically
on October 24 of that year before the Catholic Minister Fr. Antonio Albrecht. Since their
marriage the couple lived together as husband and wife for the ensuing six months in the house
of the husbands father at Rizal Avenue, Manila, and then moved their residence to the
municipality of Maycawayan, Bulacan. Out of this union were born Felix Luis del Barrio and
Maria Teresa del Barrio who must be actually 11 and 9 years old, respectively.
It seems that during their married life this couple had frequent quarrels, on which occasions the
husband maltreated his wife by deed, and because the latter was unable to bear such
punishment, in 1947 they unceremoniously separated, the wife staying in Meycawayan and the
husband in the house of his father at 2110 Rizal Avenue, Manila. Notwithstanding this
separation of dwellings they met each other in the City of Manila, and the wife claims that in
December, 1950, or January, 1951, and in September of the latter year she was again
maltreated by her husband. This moved her to institute the present action alleging in the petition
filed on October 26, 1951, in the Court of First Instance of Bulacan, among other things, that the
system of conjugal partnership of gains governs her marriage to the respondent; that no
property has been acquired during the marriage of the petitioner and respondent except a
portion of a residential land located in Meycawayan, Bulacan, from which no rentals are derived;
that respondent has made several attempts on the life of the herein petitioner which compelled
her to live separately and apart from the respondent since 1947; and that respondent has not
provided support for petitioner and their children. Hence she prays the court:
(a) that a decree be entered for the legal separation of petitioner from respondent;
(b) that petitioner be awarded the custody of their minor children Felix del Barrio and Maria
Teresa del Barrio by herein respondent;
(c) that respondent be directed to contribute to the support of said children;
(d) that petitioner be allowed costs, plus attorneys fees in the sum of P200 in this instance, to
be charged against the conjugal partnership property referred to in paragraph 4 above, pursuant
to Article 293 of the Civil Code of the Philippines;
(e) that whatever shall remain of said conjugal partnership property after deduction of the
expenses mentioned in the next preceding paragraph, be divided and adjudicated in equal parts
to herein petitioner and respondent and the conjugal partnership dissolved and liquidated; and
(f) that petitioner be granted such further and complete relief as may be just and equitable in the
premises.
On November 12, 1951, respondent filed his answer to the petition denying the averments made
in his wifes pleading and prayed the court that the petition be denied and dismissed for lack of
merit, it being contrary to moral and good customs and not authorized or sanctioned by statute,
praying further for such other relief as provided by law, with costs de oficio.
After the issues were joined, the court, in compliance with the provisions of Article 98 of the new
Civil Code, took every feasible step towards the reconciliation of the spouses, but His Honor
failed in his purpose by reason of the determined refusal of the wife to yield to the efforts of the
Judge to that end. Hence the case proceeded with the intervention of the office of the Provincial
Fiscal of Bulacan. After hearing the Court rendered decision the dispositive part of which,
translated into English, is as follows:
IN VIEW OF THESE CONSIDERATIONS, the Court is of the opinion and so holds that the
present complaint must be, as it is hereby, dismissed for lack of merits; without costs.
Not satisfied with the outcome of her petition, Felicidad P. Muoz appealed from said judgment,
and in this instance her counsel maintains that the lower court erred:
1. In not finding that respondent-appellee had made attempts on the life of petitioner-appellant;
2. In not decreeing legal separation and in dismissing petitioner-appellants action without costs;
and 3. In not awarding attorneys fees to petitioner-appellant.
The new Civil Code prescribes the following:
Art. 97. A petition for legal separation may be filed:
(1) For adultery on the part of the wife and for concubinage on the part of the husband, as
defined in the Penal Code; or
(2) An attempt by one spouse against the life of the other.
In the case at bar the alleged maltreatments to the wife by the husband occurred before their
separation a mensa et thoro in 1947 must not have amounted to said husbands attempts on the
life of his wife, since the latter did not institute any action for the legal separation from him upon
the effectivity of the Civil Code on August 30, 1950, and this case was only brought to court on
October 26, 1951, after the alleged maltreatment of September 1951 had taken place.
Therefore, in this appeal we only have to determine whether the maltreatments that appellant
suffered at the hands of the respondent after their separation of dwelling, which allegedly
occurred in December, 1950, or January, 1951, and September of the latter year, furnish ground
for the legal separation applied for under paragraph 2 of Article 97 of the Civil Code.

In appellants brief mention is made of the testimonies of Jovita Faustino, a tenant of apartment
No. 2068 Ipil St., Manila, owned by appellants father, Felix Muoz, of Meycawayan, Bulacan,
and referring to the quarrel that the spouses had in March of 1950; of Faustino Mallari,
patrolman in the Manila Police Department, referring to the spouses encounter in December,
1950, or January, 1951; of appellants counsel, Attorney Manuel M. Macias, relative to the
occasion in which the spouses met at his office on or about September 30, 1951; and of
appellant herself. The maltreatment referred to by Jovita Faustino consisted merely in appelles
giving a fist blow on the face of appellant. Patrolman Mallari did not witness the maltreatment on
which he testified, for he was called by appellant to intervene in the quarrel between the
spouses when it was already over, and the only thing he noticed was that she was crying and
that there were certain scratches on her brow and cheeks and on certain points of the neck
which were blackened (ecchymosis). About the quarrel spoken of by Attorney Macias, the latter
declared that appelle boxed his wife on the abdomen, pulled her hair and had also twisted her
neck when said attorney, Leoncio Santos and Jose Enriquez separated petitioner and
respondent.
An attempt on the life of a person implies that the actor in the attempt is moved by an intention
to kill the person against whom the attempt is made, and after a careful examination of the
evidence produced by appellant we cannot make up our mind to declare that the alleged
maltreatments of respondent to his wife were moved by such intent to kill. On the contrary, we
share the opinion of the trial judge who declared that said maltreatments cannot constitute
attempts on the life of appellant as provided in Article 97, No.2, of the Civil Code of the
Philippines.
From the second edition of the Revised Penal Code by Dean Vicente J. Francisco Book II,
part 1, pp. 671-672 we copy the following: In the prosecutions for frustrated or attempted
homicide, the intention to take life must be proved with the same degree of certainty as is
required with respect to other elements of the crime, and the inference of such intent should not
be drawn in the absence of circumstances sufficient to prove such intention beyond reasonable
doubt (People vs. Villanueva, 51 Phil., 448). It is absolutely necessary that the homicidal intent
be evidenced by adequate acts which at the time of their execution were unmistakably
calculated to produce the death of the victim, since the crime of frustrated or attempted homicide
is one in which, more than in any other case, the penal law is based upon the material results
produced by the criminal act. It is not proper or just to attribute to the delinquent a specific intent
to commit the higher crime in the absence of proof to justify such a conclusion (U.S. vs.
Taguibao, 1 Phil., 16). Conformably to this rule, therefore, an accused who, upon seeing a man
plowing the land which was the subject matter of a dispute, immediately attacks the latter,
inflicting blows upon his neck with the back of the bolo, must be convicted of physical injuries,
and not of frustrated homicide, because the mere fact that the assault was committed with the
back instead of the cutting edge of the bolo negatives the idea of homicidal intent and precludes
the crime from constituting frustrated homicide. (U.S. vs. Taguibao, 1 Phil., 16).
Nothing is more difficult to discover than intention, this being a mental act; we are only able to
deduce it from the external acts performed by the agent, and when these acts have naturally
given a definite result, courts should not without clear and conclusive proof, hold that some other
result was intended (U.S. vs. Mendoza, 38 Phil., 691, 693)> It is always to be remembered that
the first and simplest presumption which, as stated above, the law draws with respect to human
conduct, in connection with acts of violence, is that the actor intended the natural consequence
of his acts; and this presumption should be implied in a fair and rational way, with proper regard
to all the details of the act, and without the suppression of any of its elements. *** Likewise,
where the accused inflicted a scalp wound with a hatchet and struck at his victim a second time,
it should not be inferred, from the mere fact that a hatchet in the hands of an infuriated man is a
deadly weapon, that the accused really intended to kill (People vs. Villanueva, 51 Phil., 488).
When criminal liability is made to consist in the intention to perform an act which was not
realized, the facts from which it is claimed that intention sprang must be such as to exclude all
contrary supposition. When this intention is not necessarily disclosed by the acts performed by
the defendant, greater importance should not be given to such acts than that which they in
themselves import, nor should the defendants liability be extended beyond that which is actually
involved in the material results of the act. (U.S. vs Mendoza, 38 Phil., 691).
In the case of U.S. vs. Reyes et al., 30 Phil., 551, the Highest Tribunal of the land said the
following: Homicide; Criminal intent. When the case affords no good reason for holding that
the assailants positively intended to kill the injured party in spite of the persistent and repeated
beatings they gave him, however much they plainly demonstrated their intention of doing him
injury, by striking him in an inhuman manner on various parts of his body, it is improper to
classify the crime as either frustrated or attempted homicide. A personal assault must be
punished according to its consequences and the harm done to the victim, for the penal law in
this class of crimes is only concerned with the material results produced by the transgression,
unless the perverse intention of taking the victims life be clearly manifested.
In the maltreatments complained of in this case, the respondent only used at most his bare fists
or hands and desisted from giving further chastisement after the first blows were given at the
spur of the impulse. It is argued, however, that this is a civil case and that appellant is only
bound to prove her right of action by preponderance of evidence and not by evidence beyond
reasonable doubt upon which a conviction for attempted paricide would rest, and though we
may, to a certain extent, agree with counsel for appellant on this point, yet we cannot help but
declare that in so far as the intent to kill is concerned, it must be established with clear and
convincing evidence, and that in the case at bar said intent has not been proved by such
evidence. Petitioner-appellant herself should not have been so sure of her evidence when
instead of the present action she dared not cause the prosecution of her husband for attempted
parricide as a means of establishing her right to secure the legal separation she applies for in
this case. Wherefore, the decision appealed from, being in conformity with the law and the
evidence of record, is hereby affirmed without pronouncement as to costs. It is so ordered. Pea
and Makalintal, JJ., concur. Judgment affirmed.

FROILAN C. GANDIONCO, petitioner, vs. HON. SENEN C. PEARANDA, as Presiding

Judge of the Regional Trial Court of Misamis Oriental, Branch 18, Cagayan de Oro City,
and TERESITA S. GANDIONCO, respondents.
PADILLA, J.: A special civil action for certiorari, with application for injunction, to annul (1) the
Order of the respondent Judge, dated 10 December 1986, ordering petitioner to pay
support pendente lite to private respondent (his wife) and their child, and (2) the Order of the
same respondent Judge, dated 5 August 1987, denying petitioner's motion to suspend hearings
in the action for legal separation filed against him by private respondent as well as his motion to
inhibit respondent Judge from further hearing and trying the case.
On 29 May 1986, private respondent, the legal wife of the petitioner, filed with the Regional Trial
Court of Misamis Oriental, 10th Judicial District, Branch 18, in Cagayan de Oro City, presided
over by respondent Judge, a complaint against petitioner for legal separation, on the ground of
concubinage, with a petition for support and payment of damages. This case was docketed as
Civil Case No. 10636. On 13 October 1986, private respondent also filed with the Municipal Trial
Court, General Santos City, a complaint against petitioner for concubinage, which was docketed
on 23 October 1986 as Criminal Case No. 15437111. On 14 November 1986, application for the
provisional remedy of support pendente lite, pending a decision in the action for legal
separation, was filed by private respondent in the civil case for legal separation. The respondent
judge, as already stated, on 10 December 1986, ordered The payment of support pendente lite.
In this recourse, petitioner contends that the civil action for legal separation and the incidents
consequent thereto, such as, application for support pendente lite, should be suspended in view
of the criminal case for concubinage filed against him the private respondent. In support of his
contention, petitioner cites Art. III. Sec. 3 of the 1985 Rules on Criminal Procedure, which states:
SEC. 3. Other Civil action arising from offenses. Whenever the offended party shall have
instituted the civil action to enforce the civil liability arising from the offense. as contemplated in
the first Section 1 hereof, the following rules shall be observed:
(a) After a criminal action has been commenced the pending civil action arising from the same
offense shall be suspended, in whatever stage it may be found, until final judgment in the
criminal proceeding has been rendered. . . .
The civil action for legal separation, grounded as it is on concubinage, it is petitioner's position
that such civil action arises from, or is inextricably tied to the criminal action for concubinage, so
that all proceedings related to legal separation will have to be suspended to await conviction or
acquittal for concubinage in the criminal case. Authority for this position is this Court's decision
in the case of Jerusalem vs. Hon. Roberto Zurbano. 1
Petitioner's contention is not correct.
In Jerusalem, the Court's statement to the effect that suspension of an action for legal
separation would be proper if an allegation of concubinage is made therein, relied solely on Sec.
1 of Rule 107 of the then provisions of the Rules of Court on criminal procedure, to wit:
Sec. 1. Rules governing civil actions arising from offenses.-Except as otherwise provided by law,
the following rules shall he observed:
(a) When a criminal action is instituted, the civil action for recovery of civil liability arising from
the offense charged is impliedly instituted with the criminal action, unless the offended party
expressly waives the civil action or reserves his right to institute it separately;
(b) Criminal and civil actions arising from the same offense may be instituted separately, but
after the criminal action has been commenced the civil action can not be instituted until final
judgment has been rendered in the criminal action;
(c) After a criminal action has been commenced, no civil action arising from the same offense
can be prosecuted and the same shall be suspended in whatever stage it may be found until
final judgment in the criminal proceeding has been rendered ... (Emphasis supplied)
The provisions last quoted did not clearly state, as the 1985 Rules do, that the civil action to be
suspended, with or upon the filing of a criminal action, is one which is "to enforce the civil liability
arising from the offense". In other words, in view of the amendment under the 1985 Rules on
Criminal Procedure, a civil action for legal separation, based on concubinage, may proceed
ahead of, or simultaneously with, a criminal action for concubinage, because said civil action
is not one "to enforce the civil liability arising from the offense" even if both the civil and criminal
actions arise from or are related to the same offense. Such civil action is one intended to obtain
the right to live separately, with the legal consequences thereof, such as, the dissolution of the
conjugal partnership of gains, custody of offsprings, support, and disqualification from inheriting
from the innocent spouse, among others. As correctly pointed out by the respondent Judge in
his Order dated 5 August 1987:
The unreported case of JERUSALEM vs. Hon. Roberto Zurbano, Judge of CFI of Antique, et al.,
L-11935, April 24, 1959 (105 Phil. 1277) is not controlling. It applied paragraph C of Sec. 1, of
then Rule 107 of the Rules of Court, which reads:
After a criminal action has been commenced, no civil action arising from the same offense can
be prosecuted and the same shall be suspended, in whatever stage it may be found, until final
judgment in the criminal proceeding has been rendered. (Emphasis supplied)
The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal Procedure which refers to
"civil actions to enforce the civil liability arising from the offense" as contemplated in the first
paragraph of Section 1 of Rule 111-which is a civil action "for recovery of civil liability arising
from the offense charged." Sec. 1, Rule 111, (1985) is specific that it refers to civil action for the
recovery of civil liability arising from the offense charged. Whereas, the old Sec. 1 (c), Rule 107
simply referred to "Civil action arising from the offense."
As earlier noted this action for legal separation is not to recover civil liability, in the main, but is
aimed at the conjugal rights of the spouses and their relations to each other, within the
contemplation of Articles 7 to 108, of the Civil Code." 2
Petitioner also argues that his conviction for concubinage will have to be first secured before the
action for legal separation can prosper or succeed, as the basis of the action for legal separation
is his alleged offense of concubinage.
Petitioner's assumption is erroneous. A decree of legal separation, on the ground of
concubinage, may be issued upon proof by preponderance of evidence in the action for legal
separation. 3 No criminal proceeding or conviction is necessary. To this end, the doctrine
in Francisco vs. Tayao 4 has been modified, as that case was decided under Act. No. 2710,

when absolute divorce was then allowed and had for its grounds the same grounds for legal
separation under the New Civil Code, with the requirement, under such former law, that the guilt
of defendant spouses had to be established by final judgment in a criminal action. That
requirement has not been reproduced or adopted by the framers of the present Civil Code, and
the omission has been uniformly accepted as a modification of the stringent rule in Francisco v.
Tayao. 5
Petitioner's attempt to resist payment of support pendente lite to his wife must also fail, as we
find no proof of grave abuse of discretion on the part of the respondent Judge in ordering the
same. Support pendente lite, as a remedy, can be availed of in an action for legal separation,
and granted at the discretion of the judge. 6 If petitioner finds the amount of support pendente
lite ordered as too onerous, he can always file a motion to modify or reduce the same. 7
Petitioner lastly seeks to have the respondent Judge disqualified from hearing the case, as the
grant of supportpendente lite and the denial of the motion to suspend hearings in the case, are
taken by the petitioner as a disregard of applicable laws and existing doctrines, thereby showing
the respondent Judge's alleged manifest partiality to private respondent.
Petitioner's contention is without merit. Divergence of opinions between a judge hearing a case
and a party's counsel, as to applicable laws and jurisprudence, is not a sufficient ground to
disqualify the judge from hearing the case, on the ground of bias and manifest partiality. This is
more so, in this case, where we find the judge's disposition of petitioner's motions to be sound
and well-taken. WHEREFORE, the instant petition is hereby DISMISSED. Costs against
petitioner. SO ORDERED. Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ.,
concur.
CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ, petitioner-appellant,
vs. EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee. Jose W. Diokno for
petitioner-appellant. D. G. Eufemio for respondent-appellee.
REYES J.B.L., J.:p Petition, filed after the effectivity of Republic Act 5440, for review
by certiorari of an order, dated 29 July 1969, of the Juvenile and Domestic Relations Court of
Manila, in its Civil Case No. 20387, dismissing said case for legal separation on the ground that
the death of the therein plaintiff, Carmen O. Lapuz Sy, which occurred during the pendency of
the case, abated the cause of action as well as the action itself. The dismissal order was issued
over the objection of Macario Lapuz, the heir of the deceased plaintiff (and petitioner herein)
who sought to substitute the deceased and to have the case prosecuted to final judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S.
Eufemio, alleging, in the main, that they were married civilly on 21 September 1934 and
canonically on 30 September 1934; that they had lived together as husband and wife
continuously until 1943 when her husband abandoned her; that they had no child; that they
acquired properties during their marriage; and that she discovered her husband cohabiting with
a Chinese woman named Go Hiok at 1319 Sisa Street, Manila, on or about March 1949. She
prayed for the issuance of a decree of legal separation, which, among others, would order that
the defendant Eufemio S. Eufemio should be deprived of his share of the conjugal partnership
profits.
In his second amended answer to the petition, herein respondent Eufemio S. Eufemio alleged
affirmative and special defenses, and, along with several other claims involving money and
other properties, counter-claimed for the declaration of nullity ab initio of his marriage with
Carmen O. Lapuz Sy, on the ground of his prior and subsisting marriage, celebrated according
to Chinese law and customs, with one Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the parties adduced their respective evidence.
But before the trial could be completed (the respondent was already scheduled to present
surrebuttal evidence on 9 and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular
accident on 31 May 1969. Counsel for petitioner duly notified the court of her death.
On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal separation" 1 on
two (2) grounds, namely: that the petition for legal separation was filed beyond the one-year
period provided for in Article 102 of the Civil Code; and that the death of Carmen abated the
action for legal separation.
On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by
her father, Macario Lapuz. Counsel for Eufemio opposed the motion.
On 29 July 1969, the court issued the order under review, dismissing the case. 2 In the body of
the order, the court stated that the motion to dismiss and the motion for substitution had to be
resolved on the question of whether or not the plaintiff's cause of action has survived, which the
court resolved in the negative. Petitioner's moved to reconsider but the motion was denied on 15
September 1969.
After first securing an extension of time to file a petition for review of the order of dismissal
issued by the juvenile and domestic relations court, the petitioner filed the present petition on 14
October 1969. The same was given due course and answer thereto was filed by respondent,
who prayed for the affirmance of the said order. 3
Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims,
he did not pursue them after the court below dismissed the case. He acquiesced in the dismissal
of said counterclaims by praying for the affirmance of the order that dismissed not only the
petition for legal separation but also his counterclaim to declare the Eufemio-Lapuz marriage to
be null and void ab initio.
But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute for the lower court
did not act on the motion for substitution) stated the principal issue to be as follows:
When an action for legal separation is converted by the counterclaim into one for a declaration
of nullity of a marriage, does the death of a party abate the proceedings?
The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit
to one for declaration of nullity of a marriage, which is without basis, for even petitioner asserted
that "the respondent has acquiesced to the dismissal of his counterclaim" (Petitioner's Brief,
page 22). Not only this. The petition for legal separation and the counterclaim to declare the
nullity of the self same marriage can stand independent and separate adjudication. They are not
inseparable nor was the action for legal separation converted into one for a declaration of nullity

by the counterclaim, for legal separation pre-supposes a valid marriage, while the petition for
nullity has a voidable marriage as a pre-condition.
The first real issue in this case is: Does the death of the plaintiff before final decree, in an action
for legal separation, abate the action? If it does, will abatement also apply if the action involves
property rights? .
An action for legal separation which involves nothing more than the bed-and-board separation of
the spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil
Code of the Philippines recognizes this in its Article 100, by allowing only the innocent spouse
(and no one else) to claim legal separation; and in its Article 108, by providing that the spouses
can, by their reconciliation, stop or abate the proceedings and even rescind a decree of legal
separation already rendered. Being personal in character, it follows that the death of one party to
the action causes the death of the action itself actio personalis moritur cum persona.
... When one of the spouses is dead, there is no need for divorce, because the marriage is
dissolved. The heirs cannot even continue the suit, if the death of the spouse takes place during
the course of the suit (Article 244, Section 3). The action is absolutely dead (Cass., July 27,
1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. H. 1933, 332.") 4 .
Marriage is a personal relation or status, created under the sanction of law, and an action for
divorce is a proceeding brought for the purpose of effecting a dissolution of that relation. The
action is one of a personal nature. In the absence of a statute to the contrary, the death of one of
the parties to such action abates the action, for the reason that death has settled the question of
separation beyond all controversy and deprived the court of jurisdiction, both over the persons of
the parties to the action and of the subject-matter of the action itself. For this reason the courts
are almost unanimous in holding that the death of either party to a divorce proceeding, before
final decree, abates the action. 1 Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72; Danforth v.
Danforth, 111 Ill. 236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578; 134 Am St. Rep. 830; 17
Ann. Cas. 874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817; Strickland v. Strickland, 80 Ark.
452, 97 S. W. 659; McCurley v. McCurley, 60 Md. 185, 45 Am. Rep. 717; Begbie v. Begbie, 128
Cal. 155, 60 Pac. 667, 49 L.R.A. 141. 5
The same rule is true of causes of action and suits for separation and maintenance (Johnson vs.
Bates, Ark. 101 SW 412; 1 Corpus Juris 208).
A review of the resulting changes in property relations between spouses shows that they are
solely the effect of the decree of legal separation; hence, they can not survive the death of the
plaintiff if it occurs prior to the decree. On the point, Article 106 of the Civil Code provides: .
Art. 106. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall
not be severed; .
(2) The conjugal partnership of gains or the absolute conjugal community of property shall be
dissolved and liquidated, but the offending spouse shall have no right to any share of the profits
earned by the partnership or community, without prejudice to the provisions of article 176;
(3) The custody of the minor children shall be awarded to the innocent spouse, unless otherwise
directed by the court in the interest of said minors, for whom said court may appoint a guardian;
(4) The offending spouse shall be disqualified from inheriting from the innocent spouse by
intestate succession. Moreover, provisions in favor of the offending spouse made in the will of
the innocent one shall be revoked by operation of law.
From this article it is apparent that the right to the dissolution of the conjugal partnership of gains
(or of the absolute community of property), the loss of right by the offending spouse to any share
of the profits earned by the partnership or community, or his disqualification to inherit by
intestacy from the innocent spouse as well as the revocation of testamentary provisions in favor
of the offending spouse made by the innocent one, are all rights and disabilities that, by the very
terms of the Civil Code article, are vested exclusively in the persons of the spouses; and by their
nature and intent, such claims and disabilities are difficult to conceive as assignable or
transmissible. Hence, a claim to said rights is not a claim that "is not thereby extinguished" after
a party dies, under Section 17, Rule 3, of the Rules of Court, to warrant continuation of the
action through a substitute of the deceased party.
Sec. 17. Death of party. After a party dies and the claim is not thereby extinguished, the court
shall order, upon proper notice, the legal representative of the deceased to appear and to be
substituted for the deceased, within a period of thirty (30) days, or within such time as may be
granted...
The same result flows from a consideration of the enumeration of the actions that survive for or
against administrators in Section 1, Rule 87, of the Revised Rules of Court:
SECTION 1. Actions which may and which may not be brought against executor or
administrator. No action upon a claim for the recovery of money or debt or interest thereon shall
be commenced against the executor or administrator; but actions to recover real or personal
property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to
recover damages for an injury to person or property, real or personal, may be commenced
against him.
Neither actions for legal separation or for annulment of marriage can be deemed fairly included
in the enumeration..
A further reason why an action for legal separation is abated by the death of the plaintiff, even if
property rights are involved, is that these rights are mere effects of decree of separation, their
source being the decree itself; without the decree such rights do not come into existence, so that
before the finality of a decree, these claims are merely rights in expectation. If death supervenes
during the pendency of the action, no decree can be forthcoming, death producing a more
radical and definitive separation; and the expected consequential rights and claims would
necessarily remain unborn.
As to the petition of respondent-appellee Eufemio for a declaration of nullity ab initio of his
marriage to Carmen Lapuz, it is apparent that such action became moot and academic upon the
death of the latter, and there could be no further interest in continuing the same after her
demise, that automatically dissolved the questioned union. Any property rights acquired by
either party as a result of Article 144 of the Civil Code of the Philippines 6 could be resolved and
determined in a proper action for partition by either the appellee or by the heirs of the appellant.

In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article
83, paragraph 2, of the Civil Code, because the second marriage had been contracted with the
first wife having been an absentee for seven consecutive years, or when she had been generally
believed dead, still the action for annulment became extinguished as soon as one of the three
persons involved had died, as provided in Article 87, paragraph 2, of the Code, requiring that the
action for annulment should be brought during the lifetime of any one of the parties involved.
And furthermore, the liquidation of any conjugal partnership that might have resulted from such
voidable marriage must be carried out "in the testate or intestate proceedings of the deceased
spouse", as expressly provided in Section 2 of the Revised Rule 73, and not in the annulment
proceeding.
ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and Domestic Relations
is hereby affirmed. No special pronouncement as to costs.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and
Makasiar, JJ., concur.
ESTRELLA DE LA CRUZ,plaintiff-appellee, vs. SEVERINO DE LA CRUZ,defendant-appellant.
Estacion and Paltriguera for plaintiff-appellee. Manuel O. Soriano and Pio G. Villoso for
defendant-appellant.
CASTRO, J.: The plaintiff Estrella de la Cruz filed a complaint on July 22, 1958 with the Court of
First Instance of Negros Occidental, alleging in essence that her husband, the defendant
Severino de la Cruz, had not only abandoned her but as well was mismanaging their conjugal
partnership properties, and praying for (1) separation of property, (2) monthly support of P2,500
during the pendency of the action, and (3) payment of P20,000 as attorney's fees, and costs.
The court a quo forthwith issued an order allowing the plaintiff the amount prayed for as
alimony pendente lite, which however, upon defendant's motion, was reduced to P2,000.
On June 1, 1961 the trial court rendered judgment ordering separation and division of the
conjugal assets, and directing the defendant to pay to the plaintiff the sum of P20,000 as
attorney's fees, with legal interest from the date of the original complaint, that is, from July 22,
1958, until fully paid, plus costs. From this judgment the defendant appealed to the Court of
Appeals, which certified the case to us, "it appearing that the total value of the conjugal assets is
over P500,000".
The basic facts are not controverted. The plaintiff and the defendant were married in Bacolod
City on February 1, 1938. Six children were born to them, namely, Zenia (1939), Ronnie (1942),
Victoria (1944), Jessie 1945), Bella (1946), and Felipe (1948). During their coverture they
acquired seven parcels of land of the Bacolod Cadastre, all assessed at P45,429, and three
parcels of the Silay Cadastre, all assessed at P43,580. All these parcels are registered in their
names. The hacienda in Silay yielded for the year 1957 a net profit of P3,390.49.
They are also engaged in varied business ventures with fixed assets valued as of December 31,
1956 at P496,006.92, from which they obtained for that year a net profit of P75,655.78. The net
gain of the Philippine Texboard Factory, the principal business of the spouses, was P90,454.48
for the year 1957. As of December 31, 1959, the total assets of the various enterprises of the
conjugal partnership were valued at P1,021,407.68, not including those of the Top Service Inc.,
of which firm the defendant has been the president since its organization in 1959 in Manila with
a paid-up capital of P50,000, P10,000 of which was contributed by him. This corporation was the
Beverly Hills Subdivision in Antipolo, Rizal, the Golden Acres Subdivision and the Green Valley
Subdivision in Las Pias, Rizal, and a lot and building located at M. H. del Pilar, Manila
purchased for P285,000, an amount borrowed from the Manufacturer's Bank and Trust
Company.
The spouses are indebted to the Philippine National Bank and the Development Bank of the
Philippines for loans obtained, to secure which they mortgaged the Philippine Texboard Factory,
the Silay hacienda, their conjugal house, and all their parcels of land located in Bacolod City.
The essential issues of fact may be gleaned from the nine errors the defendant imputes to the
court a quo, namely,
1. In finding that the only visit, from May 15, 1955 to the rendition of the decision, made by the
defendant to the conjugal abode to see his wife was on June 15, 1955;
2. In finding that the letter exh. 3 was written by one Nenita Hernandez and that she and the
defendant are living as husband and wife;
3. In finding that since 1951 the relations between the plaintiff and the defendant were far from
cordial, and that it was from 1948 that the former has been receiving an allowance from the
latter;
4. In finding that the defendant has abandoned the plaintiff;
5. In finding that the defendant since 1956 has not discussed with his wife the business activities
of the partnership, and that this silence constituted "abuse of administration of the conjugal
partnerships";
6. In declaring that the defendant mortgaged the conjugal assets without the knowledge of the
plaintiff and thru false pretences to which the latter was prey;
7. In allowing the plaintiff, on the one hand, to testify on facts not actually known by her, and, on
the other hand, in not allowing the defendant to establish his special defenses;
8. In ordering separation of the conjugal partnership properties; and
9. In sentencing the defendant to pay to the plaintiff attorney's fees in the amount of P20,000,
with interest at the legal rate.1wph1.t
Two issues of law as well emerge, requiring resolution petition: (1) Did the separation of the
defendant from the plaintiff constitute abandonment in law that would justify a separation of the
conjugal partnership properties? (2) Was the defendant's failure and/or refusal to inform the
plaintiff of the state of their business enterprises such an abuse of his powers of administration
of the conjugal partnership as to warrant a division of the matrimonial assets?
The plaintiff's evidence may be summarized briefly. The defendant started living in Manila in
1955, although he occasionally returned to Bacolod City, sleeping in his office at the Philippine
Texboard Factory in Mandalagan, instead of in the conjugal home at 2nd Street, Bacolod City.
Since 1955 the defendant had not slept in the conjugal dwelling, although in the said year he
paid short visits during which they engaged in brief conversations. After 1955 up to the time of
the trial, the defendant had never visited the conjugal abode, and when he was in Bacolod, she

was denied communication with him. He has abandoned her and their children, to live in Manila
with his concubine, Nenita Hernandez. In 1949 she began to suspect the existence of illicit
relations between her husband and Nenita. This suspicion was confirmed in 1951 when she
found an unsigned note in a pocket of one of her husband's polo shirt which was written by
Nenita and in which she asked "Bering" to meet her near the church. She confronted her
husband who forthwith tore the note even as he admitted his amorous liaison with Nenita. He
then allayed her fears by vowing to forsake his mistress. Subsequently, in November 1951, she
found in the iron safe of her husband a letter, exh. C, also written by Nenita. In this letter the
sender (who signed as "D") apologized for her conduct, and expressed the hope that the
addressee ("Darling") could join her in Baguio as she was alone in the Patria Inn and lonely in "a
place for honeymooners". Immediately after her husband departed for Manila the following
morning, the plaintiff enplaned for Baguio, where she learned that Nenita had actually stayed at
the Patria Inn, but had already left for Manila before her arrival. Later she met her husband in
the house of a relative in Manila from whence they proceeded to the Avenue Hotel where she
again confronted him about Nenita. He denied having further relations with this woman.
Celia Baez, testifying for the plaintiff, declared that she was employed as a cook in the home of
the spouses from May 15, 1955 to August 15, 1958, and that during the entire period of her
employment she saw the defendant in the place only once. This declaration is contradicted,
however, by the plaintiff herself who testified that in 1955 the defendant "used to have a short
visit there," which statement implies more than one visit.
The defendant, for his part, denied having abandoned his wife and children, but admitted that in
1957, or a year before the filing of the action, he started to live separately from his wife. When
he transferred his living quarters to his office in Mandalagan, Bacolod City, his intention was not,
as it never has been, to abandon his wife and children, but only to teach her a lesson as she
was quarrelsome and extremely jealous of every woman. He decided to live apart from his wife
temporarily because at home he could not concentrate on his work as she always quarreled with
him, while in Mandalagan he could pass the nights in peace. Since 1953 he stayed in Manila for
some duration of time to manage their expanding business and look for market outlets for their
texboard products. Even the plaintiff admitted in both her original and amended complaints that
"sometime in 1953, because of the expanding business of the herein parties, the defendant
established an office in the City of Manila, wherein some of the goods, effects and merchandise
manufactured or produced in the business enterprises of the parties were sold or disposed of".
From the time he started living separately in Mandalagan up to the filing of the complaint, the
plaintiff herself furnished him food and took care of his laundry. This latter declaration was not
rebutted by the plaintiff.
The defendant, with vehemence, denied that he has abandoned his wife and family, averring
that he has never failed, even for a single month, to give them financial support, as witnessed by
the plaintiff's admission in her original and amended complaints as well as in open court that
during the entire period of their estrangement, he was giving her around P500 a month for
support. In point of fact, his wife and children continued to draw allowances from his office of a
total ranging from P1,200 to P1,500 a month. He financed the education of their children, two of
whom were studying in Manila at the time of the trial and were not living with the plaintiff. While
in Bacolod City, he never failed to visit his family, particularly the children. His wife was always in
bad need of money because she played mahjong, an accusation which she did not traverse,
explaining that she played mahjong to entertain herself and forget the infidelities of her husband.
Marcos V. Ganaban, the manager of the Philippine Texboard Factory, corroborated the
testimony of the defendant on the matter of the support the latter gave to his family, by declaring
in court that since the start of his employment in 1950 as assistant general manager, the plaintiff
has been drawing an allowance of P1,000 to P1,500 monthly, which amount was given
personally by the defendant or, in his absence, by the witness himself.
The defendant denied that he ever maintained a mistress in Manila. He came to know Nenita
Hernandez when she was barely 12 years old, but had lost track of her thereafter. His constant
presence in Manila was required by the pressing demands of an expanding business. He denied
having destroyed the alleged note which the plaintiff claimed to have come from Nenita, nor
having seen, previous to the trial, the letter exh. C. The allegation of his wife that he had a
concubine is based on mere suspicion. He had always been faithful to his wife, and not for a
single instance had he been caught or surprised by her with another woman.
On the matter of the alleged abuse by the defendant of his powers of administration of the
conjugal partnership, the plaintiff declared that the defendant refused and failed to inform her of
the progress of their various business concerns. Although she did not allege, much less prove,
that her husband had dissipated the conjugal properties, she averred nevertheless that her
husband might squander and dispose of the conjugal assets in favor of his concubine. Hence,
the urgency of separation of property.
The defendant's answer to the charge of mismanagement is that he has applied his industry,
channeled his ingenuity, and devoted his time, to the management, maintenance and expansion
of their business concerns, even as his wife threw money away at the mahjong tables. Tangible
proof of his endeavors is that from a single cargo truck which he himself drove at the time of
their marriage, he had built up one business after another, the Speedway Trucking Service, the
Negros Shipping Service, the Bacolod Press, the Philippine Texboard Factory, and
miscellaneous other business enterprises worth over a million pesos; that all that the spouses
now own have been acquired through his diligence, intelligence and industry; that he has
steadily expanded the income and assets of said business enterprises from year to year,
contrary to the allegations of the complainant, as proved by his balance sheet and profit and
loss statements for the year 1958 and 1959 (exhibits 1 and 2); and that out of the income of their
enterprises he had purchased additional equipment and machineries and has partially paid their
indebtedness to the Philippine National Bank and the Development Bank of the Philippines.
It will be noted that the plaintiff does not ask for legal separation. The evidence presented by her
to prove concubinage on the part of the defendant, while pertinent and material in the
determination of the merits of a petition for legal separation, must in this case be regarded
merely as an attempt to bolster her claim that the defendant had abandoned her, which
abandonment, if it constitutes abandonment in law, would justify separation of the conjugal
assets under the applicable provisions of article 178 of the new Civil Code which read: "The

separation in fact between husband and wife without judicial approval, shall not affect the
conjugal partnership, except that . . . if the husband has abandoned the wife without just cause
for at least one year, she may petition the court for a receivership, or administration by her of the
conjugal partnership property, or separation of property". In addition to abandonment as a
ground, the plaintiff also invokes article 167 of the new Civil Code in support of her prayer for
division of the matrimonial assets. This article provides that "In case of abuse of powers of
administration of the conjugal partnership property by the husband, the courts, on the petition of
the wife, may provide for a receivership, or administration by the wife, or separation of property".
It behooves us, therefore, to inquire, in the case at bar, whether there has been abandonment,
in the legal sense, by the defendant of the plaintiff, and/or whether the defendant has abused his
powers of administration of the conjugal partnership property, so as to justify the plaintiff's plea
for separation of property.
We have made a searching scrutiny of the record, and it is our considered view that the
defendant is not guilty of abandonment of his wife, nor of such abuse of his powers of
administration of the conjugal partnership, as to warrant division of the conjugal assets.
The extraordinary remedies afforded to the wife by article 178 when she has been abandoned
by the husband for at least one year are the same as those granted to her by article 167 in case
of abuse of the powers of administration by the husband. To entitle her to any of these remedies,
under article 178, there must be real abandonment, and not mere separation. 1 The
abandonment must not only be physical estrangement but also amount to financial and moral
desertion.
Although an all-embracing definition of the term "abandonment " is yet to be spelled out in
explicit words, we nevertheless can determine its meaning from the context of the Law as well
as from its ordinary usage. The concept of abandonment in article 178 may be established in
relation to the alternative remedies granted to the wife when she has been abandoned by the
husband, namely, receivership, administration by her, or separation of property, all of which are
designed to protect the conjugal assets from waste and dissipation rendered imminent by the
husband's continued absence from the conjugal abode, and to assure the wife of a ready and
steady source of support. Therefore, physical separation alone is not the full meaning of the
term "abandonment", if the husband, despite his voluntary departure from the society of his
spouse, neither neglects the management of the conjugal partnership nor ceases to give
support to his wife.
The word "abandon", in its ordinary sense, means to forsake entirely; to forsake or renounce
utterly. 2 The dictionaries trace this word to the root idea of "putting under a bar". The emphasis
is on the finality and the publicity with which some thing or body is thus put in the control of
another, and hence the meaning of giving up absolutely, with intent never again to resume or
claim one's rights or interests. 3 When referring to desertion of a wife by a husband, the word has
been defined as "the act of a husband in voluntarily leaving his wife with intention to forsake her
entirely, never to return to her, and never to resume his marital duties towards her, or to claim
his marital rights; such neglect as either leaves the wife destitute of the common necessaries of
life, or would leave her destitute but for the charity of others." 4 The word "abandonment", when
referring to the act of one consort of leaving the other, is "the act of the husband or the wife who
leaves his or her consort wilfully, and with an intention of causing per perpetual
separation." 5 Giving to the word "abandoned", as used in article 178, the meaning drawn from
the definitions above reproduced, it seems rather clear that to constitute abandonment of the
wife by the husband, there must be absolute cessation of marital relations and duties and rights,
with the intention of perpetual separation.
Coming back to the case at bar, we believe that the defendant did not intend to leave his wife
and children permanently. The record conclusively shows that he continued to give support to
his family despite his absence from the conjugal home. This fact is admitted by the complainant,
although she minimized the amount of support given, saying that it was only P500 monthly.
There is good reason to believe, however, that she and the children received more than this
amount, as the defendant's claim that his wife and children continued to draw from his office
more than P500 monthly was substantially corroborated by Marcos Ganaban, whose
declarations were not rebutted by the plaintiff. And then there is at all no showing that the
plaintiff and the children were living in want. On the contrary, the plaintiff admitted, albeit
reluctantly, that she frequently played mahjong, from which we can infer that she had money; to
spare.
The fact that the defendant never ceased to give support to his wife and children negatives any
intent on his part not to return to the conjugal abode and resume his marital duties and rights.
In People v. Schelske, 6 it was held that where a husband, after leaving his wife, continued to
make small contributions at intervals to her support and that of their minor child, he was not
guilty of their "abandonment", which is an act of separation with intent that it shall be perpetual,
since contributing to their support negatived such intent. In re Hoss' Estate, supra, it was ruled
that a father did not abandon his family where the evidence disclosed that he almost always did
give his wife part of his earnings during the period of their separation and that he gradually paid
some old rental and grocery bills.
With respect to the allegation that the defendant maintained a concubine, we believe, contrary to
the findings of the court a quo, that the evidence on record fails to preponderate in favor of the
plaintiff's thesis. The proof that Nenita Hernandez was the concubine of the defendant and that
they were living as husband and wife in Manila, is altogether too indefinite. Aside from the
uncorroborated statement of the plaintiff that she knew that Nenita Hernandez was her
husband's concubine, without demonstrating by credible evidence the existence of illicit relations
between Nenita and the defendant, the only evidence on record offered to link the defendant to
his alleged mistress is exh. C. The plaintiff however failed to connect authorship of the said letter
with Nenita, on the face whereof the sender merely signed as "D" and the addressee was one
unidentified "Darling". The plaintiff's testimony on cross-examination, hereunder quoted,
underscores such failure:
Q. You personally never received any letter from Nenita?
A. No.
Q. Neither have you received on any time until today from 1949 from Nenita?
A. No.

Q. Neither have you written to her any letter yourself until now?
A. Why should I write a letter to her.
Q. In that case, Mrs. De la Cruz, you are not familiar with the handwriting of Nenita. Is that right?
A. I can say that Nenita writes very well.
Q. I am not asking you whether she writes very well or not but, my question is this: In view of the
fact that you have never received a letter from Nenita, you have ot sent any letter to her, you are
not familiar with her handwriting?
A. Yes.
Q. You have not seen her writing anybody?
A. Yes.
Anent the allegation that the defendant had mismanaged the conjugal partnership property, the
record presents a different picture. There is absolutely no evidence to show that he has
squandered the conjugal assets. Upon the contrary, he proved that through his industry and
zeal, the conjugal assets at the time of the trial had increased to a value of over a million pesos.
The lower court likewise erred in holding that mere refusal or failure of the husband as
administrator of the conjugal partnership to inform the wife of the progress of the family
businesses constitutes abuse of administration. For "abuse" to exist, it is not enough that the
husband perform an act or acts prejudicial to the wife. Nor is it sufficient that he commits acts
injurious to the partnership, for these may be the result of mere inefficient or negligent
administration. Abuse connotes willful and utter disregard of the interests of the partnership,
evidenced by a repetition of deliberate acts and/or omissions prejudicial to the latter. 7
If there is only physical separation between the spouses (and nothing more), engendered by the
husband's leaving the conjugal abode, but the husband continues to manage the conjugal
properties with the same zeal, industry, and efficiency as he did prior to the separation, and
religiously gives support to his wife and children, as in the case at bar, we are not disposed to
grant the wife's petition for separation of property. This decision may appear to condone the
husband's separation from his wife; however, the remedies granted to the wife by articles 167
and 178 are not to be construed as condonation of the husband's act but are designed to protect
the conjugal partnership from waste and shield the wife from want. Therefore, a denial of the
wife's prayer does not imply a condonation of the husband's act but merely points up the
insufficiency or absence of a cause of action.1wph1.t
Courts must need exercise judicial restraint and reasoned hesitance in ordering a separation of
conjugal properties because the basic policy of the law is homiletic, to promote healthy family
life and to preserve the union of the spouses, in person, in spirit and in property.
Consistent 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 Code (both old
and new) requires that separation of property shall not prevail unless expressly stipulated in
marriage settlements before the union is solemnized or by formal judicial decree during the
existence of the marriage (Article 190, new Civil Code, Article 1432, old Civil Code): and in the
latter case, it may only be ordered by the court for causes specified in Article 191 of the new
Civil Code. 8
Furthermore, a judgment ordering the division of conjugal assets where there has been no real
abandonment, the separation not being wanton and absolute, may altogether slam shut the door
for possible reconciliation. The estranged spouses may drift irreversibly further apart; the
already broken family solidarity may be irretrievably shattered; and any flickering hope for a new
life together may be completely and finally extinguished.
The monthly alimony in the sum of P2,000 which was allowed to the wife in 1958, long before
the devaluation of the Philippine peso in 1962, should be increased to P3,000.
On the matter of attorney's fees, it is our view that because the defendant, by leaving the
conjugal abode, has given cause for the plaintiff to seek redress in the courts, and ask
for adequate support, an award of attorney's fees to the plaintiff must be made. Ample authority
for such award is found in paragraphs 6 and 11 of article 2208 of the new Civil Code which
empower courts to grant counsel's fees "in actions for legal support" and in cases "where the
court deems it just and equitable that attorney's fees . . . should be recovered." However, an
award of P10,000, in our opinion, is, under the environmental circumstances, sufficient.
This Court would be remiss if it did not, firstly, remind the plaintiff and the defendant that the law
enjoins husband and wife to live together, and, secondly, exhort them to avail of mutually,
earnestly and steadfastly all opportunities for reconciliation to the end that their marital
differences may be happily resolved, and conjugal harmony may return and, on the basis of
mutual respect and understanding, endure.
ACCORDINGLY, the judgment a quo, insofar as it decrees separation of the conjugal properties,
is reversed and set aside. Conformably to our observations, however, the defendant is ordered
to pay to the plaintiff, in the concept of support, the amount of P3,000 per month, until he shall
have rejoined her in the conjugal home, which amount may, in the meantime, be reduced or
increased in the discretion of the court a quo as circumstances warrant. The award of attorney's
fees to the plaintiff is reduced to P10,000, without interest. No pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Angeles
and Fernando, JJ., concur.
ONG ENG KIAM a.k.a. WILLIAM ONG, petitioner, vs. LUCITA G. ONG, respondent.
AUSTRIA-MARTINEZ, J.: Before this Court is a Petition for Review seeking the reversal of the
Decision1 of the Court of Appeals (CA) in CA G.R. CV No. 59400 which affirmed in toto the
Decision of the Regional Trial Court (RTC) Branch 41, Dagupan City granting the petition for
legal separation filed by herein respondent, as well as the Resolution2 of the CA dated April 26,
2002 which denied petitioners motion for reconsideration.
Ong Eng Kiam, also known as William Ong (William) and Lucita G. Ong (Lucita) were married
on July 13, 1975 at the San Agustin Church in Manila. They have three children: Kingston,
Charleston, and Princeton who are now all of the age of majority.3
On March 21, 1996, Lucita filed a Complaint for Legal Separation under Article 55 par. (1) of the
Family Code4before the Regional Trial Court (RTC) of Dagupan City, Branch 41 alleging that her
life with William was marked by physical violence, threats, intimidation and grossly abusive
conduct.5

Lucita claimed that: soon after three years of marriage, she and William quarreled almost every
day, with physical violence being inflicted upon her; William would shout invectives at her like
"putang ina mo", "gago", "tanga", and he would slap her, kick her, pull her hair, bang her head
against concrete wall and throw at her whatever he could reach with his hand; the causes of
these fights were petty things regarding their children or their business; William would also scold
and beat the children at different parts of their bodies using the buckle of his belt; whenever she
tried to stop William from hitting the children, he would turn his ire on her and box her; on
December 9, 1995, after she protested with Williams decision to allow their eldest son Kingston
to go to Bacolod, William slapped her and said, "it is none of your business"; on December 14,
1995, she asked William to bring Kingston back from Bacolod; a violent quarrel ensued and
William hit her on her head, left cheek, eye, stomach, and arms; when William hit her on the
stomach and she bent down because of the pain, he hit her on the head then pointed a gun at
her and asked her to leave the house; she then went to her sisters house in Binondo where she
was fetched by her other siblings and brought to their parents house in Dagupan; the following
day, she went to her parents doctor, Dr. Vicente Elinzano for treatment of her injuries.6
William for his part denied that he ever inflicted physical harm on his wife, used insulting
language against her, or whipped the children with the buckle of his belt. While he admits that he
and Lucita quarreled on December 9, 1995, at their house in Jose Abad Santos Avenue, Tondo,
Manila, he claimed that he left the same, stayed in their Greenhills condominium and only went
back to their Tondo house to work in their office below. In the afternoon of December 14, 1995,
their laundrywoman told him that Lucita left the house.7
On January 5, 1998, the RTC rendered its Decision decreeing legal separation, thus:
WHEREFORE, premises considered, judgment is hereby rendered decreeing the legal
separation of plaintiff and defendant, with all the legal effects attendant thereto, particularly the
dissolution and liquidation of the conjugal partnership properties, for which purpose the parties
are hereby ordered to submit a complete inventory of said properties so that the Court can make
a just and proper division, such division to be embodied in a supplemental decision.
SO ORDERED.8
The RTC found that:
It is indubitable that plaintiff (Lucita) and defendant (William) had their frequent quarrels and
misunderstanding which made both of their lives miserable and hellish. This is even admitted by
the defendant when he said that there was no day that he did not quarrel with his wife.
Defendant had regarded the plaintiff negligent in the performance of her wifely duties and had
blamed her for not reporting to him about the wrongdoings of their children. (citations omitted)
These quarrels were always punctuated by acts of physical violence, threats and intimidation by
the defendant against the plaintiff and on the children. In the process, insulting words and
language were heaped upon her. The plaintiff suffered and endured the mental and physical
anguish of these marital fights until December 14, 1995 when she had reached the limits of her
endurance. The more than twenty years of her marriage could not have been put to waste by
the plaintiff if the same had been lived in an atmosphere of love, harmony and peace. Worst,
their children are also suffering. As very well stated in plaintiffs memorandum, "it would be
unthinkable for her to throw away this twenty years of relationship, abandon the comforts of her
home and be separated from her children, whom she loves, if there exists no cause, which is
already beyond her endurance.9
William appealed to the CA which affirmed in toto the RTC decision. In its Decision dated
October 8, 2001, the CA found that the testimonies for Lucita were straightforward and credible
and the ground for legal separation under Art. 55, par. 1 of the Family Code, i.e., physical
violence and grossly abusive conduct directed against Lucita, were adequately proven.10
As the CA explained:
The straightforward and candid testimonies of the witnesses were uncontroverted and credible.
Dr. Elinzanos testimony was able to show that the [Lucita] suffered several injuries inflicted by
[William]. It is clear that on December 14, 1995, she sustained redness in her cheek, black eye
on her left eye, fist blow on the stomach, blood clot and a blackish discoloration on both
shoulders and a "bump" or "bukol" on her head. The presence of these injuries was established
by the testimonies of [Lucita] herself and her sister, Linda Lim. The Memorandum/Medical
Certificate also confirmed the evidence presented and does not deviate from the doctors main
testimony --- that [Lucita] suffered physical violence on [sic] the hands of her husband, caused
by physical trauma, slapping of the cheek, boxing and fist blows. The effect of the so-called
alterations in the Memorandum/Medical Certificate questioned by [William] does not depart from
the main thrust of the testimony of the said doctor.
Also, the testimony of [Lucita] herself consistently and constantly established that [William]
inflicted repeated physical violence upon her during their marriage and that she had been
subjected to grossly abusive conduct when he constantly hurled invectives at her even in front of
their customers and employees, shouting words like, "gaga", "putang ina mo," tanga," and "you
dont know anything."
These were further corroborated by several incidents narrated by Linda Lim who lived in their
conjugal home from 1989 to 1991. She saw her sister after the December 14, 1995 incident
when she (Lucita) was fetched by the latter on the same date. She was a witness to the kind of
relationship her sister and [William] had during the three years she lived with them. She
observed that [William] has an "explosive temper, easily gets angry and becomes very violent."
She cited several instances which proved that William Ong indeed treated her wife shabbily and
despicably, in words and deeds.
xxx
That the physical violence and grossly abusive conduct were brought to bear upon [Lucita] by
[William] have been duly established by [Lucita] and her witnesses. These incidents were not
explained nor controverted by [William], except by making a general denial thereof.
Consequently, as between an affirmative assertion and a general denial, weight must be
accorded to the affirmative assertion.
The grossly abusive conduct is also apparent in the instances testified to by [Lucita] and her
sister. The injurious invectives hurled at [Lucita] and his treatment of her, in its entirety, in front of
their employees and friends, are enough to constitute grossly abusive conduct. The aggregate
behavior of [William] warrants legal separation under grossly abusive conduct. x x x11

William filed a motion for reconsideration which was denied by the CA on April 26, 2002.12
Hence the present petition where William claims that:
I) THE COURT OF APPEALS COMMITTED AN ERROR OF LAW IN DISREGARDING CLEAR
EVIDENCE THAT THE PETITION FOR LEGAL SEPARATION WAS INSTITUTED BY THE
PRIVATE RESPONDENT FOR THE SOLE PURPOSE OF REMOVING FROM PETITIONER
THE CONTROL AND OWNERSHIP OF THEIR CONJUGAL PROPERTIES AND TO
TRANSFER THE SAME TO PRIVATE RESPONDENTS FAMILY.
II) THE COURT OF APPEALS COMMITTED AN ERROR OF LAW IN DISREGARDING CLEAR
EVIDENCE REPUDIATING PRIVATE RESPONDENTS CLAIM OF REPEATED PHYSICAL
VIOLENCE AND GROSSLY ABUSIVE CONDUCT ON THE PART OF PETITIONER. 13
William argues that: the real motive of Lucita and her family in filing the case is to wrest control
and ownership of properties belonging to the conjugal partnership; these properties, which
include real properties in Hong Kong, Metro Manila, Baguio and Dagupan, were acquired during
the marriage through his (Williams) sole efforts; the only parties who will benefit from a decree
of legal separation are Lucitas parents and siblings while such decree would condemn him as a
violent and cruel person, a wife-beater and child abuser, and will taint his reputation, especially
among the Filipino-Chinese community; substantial facts and circumstances have been
overlooked which warrant an exception to the general rule that factual findings of the trial court
will not be disturbed on appeal; the findings of the trial court that he committed acts of repeated
physical violence against Lucita and their children were not sufficiently established; what took
place were disagreements regarding the manner of raising and disciplining the children
particularly Charleston, Lucitas favorite son; marriage being a social contract cannot be
impaired by mere verbal disagreements and the complaining party must adduce clear and
convincing evidence to justify legal separation; the CA erred in relying on the testimonies of
Lucita and her witnesses, her sister Linda Lim, and their parents doctor, Dr. Vicente Elinzanzo,
whose testimonies are tainted with relationship and fraud; in the 20 years of their marriage,
Lucita has not complained of any cruel behavior on the part of William in relation to their marital
and family life; William expressed his willingness to receive respondent unconditionally however,
it is Lucita who abandoned the conjugal dwelling on December 14, 1995 and instituted the
complaint below in order to appropriate for herself and her relatives the conjugal properties; the
Constitution provides that marriage is an inviolable social institution and shall be protected by
the State, thus the rule is the preservation of the marital union and not its infringement; only for
grounds enumerated in Art. 55 of the Family Code, which grounds should be clearly and
convincingly proven, can the courts decree a legal separation among the spouses.14
Respondent Lucita in her Comment, meanwhile, asserts that: the issues raised in the present
petition are factual; the findings of both lower courts rest on strong and clear evidence borne by
the records; this Court is not a trier of facts and factual findings of the RTC when confirmed by
the CA are final and conclusive and may not be reviewed on appeal; the contention of William
that Lucita filed the case for legal separation in order to remove from William the control and
ownership of their conjugal properties and to transfer the same to Lucitas family is absurd;
Lucita will not just throw her marriage of 20 years and forego the companionship of William and
her children just to serve the interest of her family; Lucita left the conjugal home because of the
repeated physical violence and grossly abusive conduct of petitioner.15
Petitioner filed a Reply, reasserting his claims in his petition,16 as well as a Memorandum where
he averred for the first time that since respondent is guilty of abandonment, the petition for legal
separation should be denied following Art. 56, par. (4) of the Family Code.17 Petitioner argues
that since respondent herself has given ground for legal separation by abandoning the family
simply because of a quarrel and refusing to return thereto unless the conjugal properties were
placed in the administration of petitioners in-laws, no decree of legal separation should be
issued in her favor.18
Respondent likewise filed a Memorandum reiterating her earlier assertions.19
We resolve to deny the petition.
It is settled that questions of fact cannot be the subject of a petition for review under Rule 45 of
the Rules of Court. The rule finds more stringent application where the CA upholds the findings
of fact of the trial court. In such instance, this Court is generally bound to adopt the facts as
determined by the lower courts.20
The only instances when this Court reviews findings of fact are:
(1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when
the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse
of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the
findings of facts are conflicting; (6) when in making its findings the Court of Appeals went
beyond the issues of the case, or its findings are contrary to the admissions of both the
appellant and the appellee; (7) when the findings are contrary to that of the trial court; (8) when
the findings are conclusions without citation of specific evidence on which they are based; (9)
when the facts set forth in the petition as well as in the petitioners main and reply briefs are not
disputed by the respondent; (10) when the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on record; and (11) when the Court of
Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if
properly considered, would justify a different conclusion.21
As petitioner failed to show that the instant case falls under any of the exceptional
circumstances, the general rule applies.
Indeed, this Court cannot review factual findings on appeal, especially when they are borne out
by the records or are based on substantial evidence.22 In this case, the findings of the RTC were
affirmed by the CA and are adequately supported by the records.
As correctly observed by the trial court, William himself admitted that there was no day that he
did not quarrel with his wife, which made his life miserable, and he blames her for being
negligent of her wifely duties and for not reporting to him the wrongdoings of their children. 23
Lucita and her sister, Linda Lim, also gave numerous accounts of the instances when William
displayed violent temper against Lucita and their children; such as: when William threw a steel
chair at Lucita;24 threw chairs at their children;25 slapped Lucita and utter insulting words at
her;26 use the buckle of the belt in whipping the children;27pinned Lucita against the wall with his
strong arms almost strangling her, and smashed the flower vase and brick rocks and moldings

leaving the bedroom in disarray;28 shouted at Lucita and threw a directory at her, in front of Linda
and the employees of their business, because he could not find a draft letter on his table; 29 got
mad at Charleston for cooking steak with vetchin prompting William to smash the plate with
steak and hit Charleston, then slapped Lucita and shouted at her "putang ina mo, gago, wala
kang pakialam, tarantado" when she sided with Charleston;30 and the December 9 and
December 14, 1995 incidents which forced Lucita to leave the conjugal dwelling.31
Lucita also explained that the injuries she received on December 14, 1995, were not the first. As
she related before the trial court:
q. You stated on cross examination that the injuries you sustained on December 14, 1995 were
the most serious?
a. Unlike before I considered December 14, 1995 the very serious because before it is only on
the arm and black eye, but on this December 14, I suffered bruises in all parts of my body, sir. 32
To these, all William and his witnesses, could offer are denials and attempts to downplay the
said incidents.33
As between the detailed accounts given for Lucita and the general denial for William, the Court
gives more weight to those of the former. The Court also gives a great amount of consideration
to the assessment of the trial court regarding the credibility of witnesses as trial court judges
enjoy the unique opportunity of observing the deportment of witnesses on the stand, a vantage
point denied appellate tribunals.34 Indeed, it is settled that the assessment of the trial court of the
credibility of witnesses is entitled to great respect and weight having had the opportunity to
observe the conduct and demeanor of the witnesses while testifying.35
In this case, the RTC noted that:
Williams denial and that of his witnesses of the imputation of physical violence committed by
him could not be given much credence by the Court. Since the office secretary Ofelia Rosal and
the family laundrywoman Rosalino Morco are dependent upon defendant for their livelihood,
their testimonies may be tainted with bias and they could not be considered as impartial and
credible witnesses. So with Kingston Ong who lives with defendant and depends upon him for
support.36
Parenthetically, William claims that that the witnesses of Lucita are not credible because of their
relationship with her. We do not agree. Relationship alone is not reason enough to discredit and
label a witnesss testimony as biased and unworthy of credence37 and a witness relationship to
one of the parties does not automatically affect the veracity of his or her testimony. 38 Considering
the detailed and straightforward testimonies given by Linda Lim and Dr. Vicente Elinzano,
bolstered by the credence accorded them by the trial court, the Court finds that their testimonies
are not tainted with bias.
William also posits that the real motive of Lucita in filing the case for legal separation is in order
for her side of the family to gain control of the conjugal properties; that Lucita was willing to
destroy his reputation by filing the legal separation case just so her parents and her siblings
could control the properties he worked hard for. The Court finds such reasoning hard to believe.
What benefit would Lucita personally gain by pushing for her parents and siblings financial
interests at the expense of her marriage? What is more probable is that there truly exists a
ground for legal separation, a cause so strong, that Lucita had to seek redress from the courts.
As aptly stated by the RTC,
...it would be unthinkable for her to throw away this twenty years of relationship, abandon the
comforts of her home and be separated from her children whom she loves, if there exists no
cause, which is already beyond her endurance.39
The claim of William that a decree of legal separation would taint his reputation and label him as
a wife-beater and child-abuser also does not elicit sympathy from this Court. If there would be
such a smear on his reputation then it would not be because of Lucitas decision to seek relief
from the courts, but because he gave Lucita reason to go to court in the first place.
Also without merit is the argument of William that since Lucita has abandoned the family, a
decree of legal separation should not be granted, following Art. 56, par. (4) of the Family Code
which provides that legal separation shall be denied when both parties have given ground for
legal separation. The abandonment referred to by the Family Code is abandonment without
justifiable cause for more than one year.40 As it was established that Lucita left William due to his
abusive conduct, such does not constitute abandonment contemplated by the said provision.
As a final note, we reiterate that our Constitution is committed to the policy of strengthening the
family as a basic social institution.41 The Constitution itself however does not establish the
parameters of state protection to marriage and the family, as it remains the province of the
legislature to define all legal aspects of marriage and prescribe the strategy and the modalities
to protect it and put into operation the constitutional provisions that protect the same.42 With the
enactment of the Family Code, this has been accomplished as it defines marriage and the
family, spells out the corresponding legal effects, imposes the limitations that affect married and
family life, as well as prescribes the grounds for declaration of nullity and those for legal
separation.43 As Lucita has adequately proven the presence of a ground for legal separation, the
Court has no reason but to affirm the findings of the RTC and the CA, and grant her the relief
she is entitled to under the law. WHEREFORE, the petition is DENIED for lack of merit. Costs
against petitioner. SO ORDERED. Panganiban, C.J. (Chairperson), Ynares-Santiago, Callejo,
Sr., and Chico-Nazario, JJ., concur.
VII. B. Defenses Article 56
Cases
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. URSULA SENSANO and
MARCELO RAMOS, defendants-appellants.Emilio L. Medina for appellants. Attorney-General
Jaranilla for appellee.
BUTTE, J.: The appellants were sentenced by the Court of First Instance of Ilocos Norte for the
crime of adultery to three years, six months and twenty-one days of prision correccional and
appealed to this court, assigning the following error: "The court below erred in not holding that
the offended husband contested to the adultery committed by his wife Ursula Sensano in that he
refused to live with her after she extinguished her previous sentence for the same offense, and
by telling her then that she could go where she wanted to and do what she pleased, and by his
silence for seven years notwithstanding that he was informed of said adultery."

The facts briefly stated as follows:

Ursula Sensano and Mariano Ventura were married on April 29, 1919. They had one child.
Shortly after the birth of his child, the husband left his wife to go to the Province of Cagayan
where he remained for three years without writing to his wife or sending her anything for the
support of herself and their son. Poor and illiterate, without relatives upon whom she could call,
she struggled for an existence for herself and her son until a fatal day when she met the
accused Marcelo Ramos who took her and the child to live with him. On the return of the
husband (in 1924), he filed a charge against his wife and Marcelo Ramos for adultery and both
were sentenced to four months and one day of arresto mayor. The court, in its decision, stated
the following: "In the opinion of the court, the husband of the accused has been somewhat cruel
in his treatment of his wife having abandoned her as he did." After completing her sentence, the
accused left her paramour. She thereupon appealed to this municipal president and the justice
of the peace to send for her husband so that she might ask his pardon and beg him to take her
back. At the house of the president she begged his pardon and promised to be a faithful wife it
he would take care her back. He refused to pardon her to live with her and said she could go
where she wished, that he would have nothing more to do with her, and she could do as she
pleased. Abandoned for the second time, she and her child went back to her coaccused Marcelo
Ramos (this was in the year 1924) and they have lived with him ever since. The husband,
knowing that she resumed living with her codefendant in 1924, did nothing to interfere with their
relations or to assert his rights as husband. Shortly thereafter he left for the Territory of Hawaii
where she remained for seven years completely abandoning his said wife and child. On his
return to these Islands, he presented the second charge of adultery here involved with the sole
purpose, as he declared, of being able to obtain a divorce under the provisions of Act No. 2710.
Article 344 of the Revised Penal Code, paragraphs 1 and 2, are as follows:
Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of
lasciviousness. The crimes of adultery and concubinage shall not be prosecuted except upon
a complaint filed by the offended spouse.
The offended party cannot institute criminal prosecution without including both the guilty parties,
if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders.
Apart from the fact that the husband in this case was assuming a mere pose when he signed the
complaint as the "offended" spouse, we have come to the conclusion that the evidence in this
case and his conduct warrant the inference that he consented to the adulterous relations
existing between the accused and therefore he is not authorized by law to institute this criminal
proceeding.
We cannot accept the argument of the Attorney-General that the seven years of acquiescence
on his part in the adultery of his wife is explained by his absence from the Philippine Islands
during which period it was impossible for him to take any action against the accused. There is
no merit in the argument that it was impossible for the husband to take any action against the
accused during the said seven years. The judgment below is reversed with costs de oficio.
Street and Ostrand, JJ., concur
JOSE DE OCAMPO, petitioner, vs SERAFINA FLORENCIANO, respondent. Joselito J.
Coloma for petitioner.
BENGZON, J.: Action for legal separation by Jose de Ocampo against his wife Serafina, on the
ground of adultery. The court of first instance of Nueva Ecija dismissed it. The Court of Appeals
affirmed, holding there was confession of judgment, plus condonation or consent to the adultery
and prescription.
We granted certiorari to consider the application of articles 100 and 101 of the New Civil Code,
which for convenience are quoted herewith:
ART. 100.The legal separation may be claimed only by the innocent spouse, provided there
has been no condonation of or consent to the adultery or concubinage. Where both spouses are
offenders, a legal separation cannot be claimed by either of them. Collusion between the parties
to obtain legal separation shall cause the dismissal of the petition.
ART. 101.No decree of legal separation shall be promulgated upon a stipulation of facts or by
confession of judgment.
In case of non-appearance of the defendant, the court shall order the prosecuting attorney to
inquire whether or not a collusion between the parties exists. If there is no collusion, the
prosecuting attorney shall intervene for the State in order to take care that the evidence for the
plaintiff is not fabricated.
The record shows that on July 5, 1955, the complaint for legal separation was filed. As
amended, it described their marriage performed in 1938, and the commission of adultery by
Serafina, in March 1951 with Jose Arcalas, and in June 1955 with Nelson Orzame.
Because the defendant made no answer, the court defaulted her, and pursuant to Art. 101
above, directed the provincial fiscal to investigate whether or not collusion existed between the
parties. The fiscal examined the defendant under oath, and then reported to the Court that there
was no collusion. The plaintiff presented his evidence consisting of the testimony of Vicente
Medina, Ernesto de Ocampo, Cesar Enriquez, Mateo Damo, Jose de Ocampo and Capt. Serafin
Gubat.
According to the Court of Appeals, the evidence thus presented shows that "plaintiff and
defendant were married in April 5, 1938 by a religious ceremony in Guimba, Nueva Ecija, and
had lived thereafter as husband and wife. They begot several children who are now living with
plaintiff. In March, 1951, plaintiff discovered on several occasions that his wife was betraying his
trust by maintaining illicit relations with one Jose Arcalas. Having found the defendant carrying
marital relations with another man plaintiff sent her to Manila in June 1951 to study beauty
culture, where she stayed for one year. Again, plaintiff discovered that while in the said city
defendant was going out with several other men, aside from Jose Arcalas. Towards the end of
June, 1952, when defendant had finished studying her course, she left plaintiff and since then
they had lived separately.
"On June 18, 1955, plaintiff surprised his wife in the act of having illicit relations with another
man by the name of Nelson Orzame. Plaintiff signified his intention of filing a petition for legal
separation, to which defendant manifested her conformity provided she is not charged with

adultery in a criminal action. Accordingly, plaintiff filed on July 5, 1955, a petition for legal
separation."
The Court of Appeals held that the husband's right to legal separation on account of the
defendant's adultery with Jose Arcalas had prescribed, because his action was not filed within
one year from March 1951 when plaintiff discovered her infidelity. (Art. 102, New Civil Code) We
must agree with the Court of Appeals on this point.1
As to the adultery with Nelson Orzame, the appellate court found that in the night of June 18,
1955, the husband upon discovering the illicit connection, expressed his wish to file a petition for
legal separation and defendant readily agreed to such filing. And when she was questioned by
the Fiscal upon orders of the court, she reiterated her conformity to the legal separation even as
she admitted having had sexual relations with Nelson Orzame. Interpreting these facts virtually
to mean a confession of judgment the Appellate Court declared that under Art. 101, legal
separation could not be decreed.
As we understand the article, it does not exclude, as evidence, any admission or confession
made by the defendant outside of the court. It 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 is 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 actionipso facto, any defendant
who opposes the separation will immediately confess judgment, purposely to prevent it.
The mere circumstance that defendants told the Fiscal that she "like 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 taking place, according to the evidence. The defendant
could not havefalsely 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 spouse, all the consequent
effects. Costs of all instances against Serafina Florenciano. So ordered. Paras, C. J., Padilla,
Montemayor, Labrador, Concepcion, Reyes, J. B. L., Endencia, Barrera, and Gutierrez David,
JJ., concur.
SARGENT v. SARGENT. (No. 46-713.) (Court of Chancery of New Jersey. Dec. 29, 1920.)
[Source: 114 Atlantic Reporter 428 (1920) keynotes 1-7 are a summary of the holdings by
the Atlantic Reporter. Spelling and word use has been left as in the original. This is the report
of the Advisory Master of the Court of Chancery. In 1921, the Court of Errors and Appeals
upheld the ruling, but that opinion is not included here; it can be found at 114 Atlantic
Reporter 439 (1921) as well as in the New Jersey Equity Reports.]
1. Divorce 129(1)-- Convincing evidence of adultery between white woman and negro required.
In a husband's suit for divorce, adultery between the wife, a cultured, refined, and modest
appearing white woman, and a negro, must be proved by evidence so convincing and compelling as to leave no doubt whatever of her guilt.
2. Divorce 129(10)- -Adultery not proved if circumstances admit of interpretation favoring
innocence.
To establish adultery in a suit for divorce, the circumstances must be such as to lead the
guarded discretion of a reasonable and just mind to the conclusion of guilt, and if the

circumstances, singly or together, admit of two interpretations, that interpretation which favors
innocence should be adopted.
3. Divorcee 129(16)-Evidence insufficient to prove adultery.
In a husband's suit for divorce, evidence held not to show adultery between the wife and a
negro chauffeur.
4. Divorce 129(7)-Testimony of detectives, etc., carefully scrutinized, and not relied on
unless corroborated.
In a husband's suit for divorce on the ground of adultery, the testimony of detectives, paid spies,
and household servants, though competent, should be scrutinized carefully and should not be
relied on unless corroborated.
5. Divorce 127(1)-When evidence circumstantial wife's denial given same weight as that
of others.
Where, in a divorce suit, it is the endeavor to establish circumstances from which it is sought to
draw an inference of the wife's guilt of adultery, and her veracity is unimpeached, her testimony
in denial should be given the same weight as that of any other witness, except as affected by
her interest.
6. Divorce 125-Admissions of alleged paramour not evidence against defendant.
In a husband's suit for divorce, an admission of the wife's alleged paramour that they had
committed adultery cannot be received as evidence against the wife, but only goes to affect the
credibility of the alleged paramour in his denial of the alleged adultery.
7. Divorce 45- -Husband held to have consented to adultery.
A husband who had reason to suspect his wife of an inclination for illicit relations with a negro
chauffeur, but did not discharge the chauffeur or even warn the wife against intimacy with him,
and facilitated adultery between them by absenting himself from home, and placed detectives in
the home, suborned servants, and received reports from them, etc., held to have consented to
the adultery, if committed. within Divorce act. 28.
Suit for divorce by Donald J. Sargent against Frances L. Sargent. Decree for defendant.
Decree affirmed; 114 Atl. 439.
Merritt Lane, of Newark, and Henry Runyon and William Huck, Jr., both of Jersey City, for
petitioner.
Alexander Simpson, of Jersey City, for defendant.
FIELDER, Adv. M. The petition, filed August 2, 1919, charges defendant with having committed
adultery (a) on various days in the month of November, 1917, with an unknown man at
petitioner's home on Kensington avenue, Jersey City; (b) at times and places unknown, with a
man or men unknown, as a result of which she contracted gonorrhea; (c) from September, 1918,
to July, 1919, the exact dates not being known to petitioner, at petitioner's said home and at Port
Richmond, Staten Island, and in petitioner's automobile and at other places unknown, all with
Charles Simmons; (d) on July 11, 1919, at petitioner's said home, with Charles Simmons. The
answer, filed September 3, 1919, denies the charges of adultery, and alleges that petitioner
communicated the venereal disease to defendant, and that be conspired with detectives and
servants to falsely accuse defendant of adultery with Simmons, and that petitioner solicited
Simmons to commit adultery with her, and afforded him opportunities to do so. On the hearing,
no proof was offered to show adultery with any man other than Simmons, and with him the
petitioner endeavored to show that defendant committed three specific acts, the first at
Jeffersonville, N.Y., on or about October 14, 1918; the second at petitioner's Kensington avenue
home, on or about 1919; and the third at the same place on July 11, 1919.
Before referring to the voluminous testimony tending to prove these acts, the social status of
the parties concerned must be considered. Simmons, the alleged paramour, is a negro
chauffeur, employed by the petitioner from July, 1918, to July 11, 1919, to drive an automobile
used by petitioner and his wife. He is a coffee colored negro, showing the characteristics of his
race, save that his hair is straight; about 30 years old; about six feet tall, and of slender build;
intelligent, but speaking ungrammatically, and I would say of not a prepossessing appearance.
As to his appearance, the three negro women who testified for petitioner said that they did not
consider him good looking, one of them describing him as a "gawky Indian." He was married,
and from about the same month in 1913 to April 5, 1919. His wife was employed in the Sargent
household as a domestic servant. Simmons and his wife lived in the Sargent home from July,
1918, to April 5, 1919. Mr. Sargent appears to be about 40 years old, and Mrs. Sargent a few
years younger. They were married September 22, 1909, and for 3 years prior to July 11, 1919,
had resided in their home on Kensington avenue, in a fashionable part of Jersey City, He has
the appearance, manner, and bearing of a man of education and culture. That he is a man of
some wealth is apparent from the fact that be is paying his wife $300 a month alimony pendente
lite. He had been master of a Masonic Lodge in his city and a member of several social clubs,
whose functions be attended with Mrs. Sargent. He and his wife moved in good social circles
and entertained and were entertained by people prominent in social, religious, and financial life.
She appears to be a woman of modest demeanor and of refinement and education, and she
possesses beauty of face and form. She was a member of various women's organizations, of a
Browning society, of musical clubs, and she was a church attendant. There is no evidence
whatever to indicate that outside of her home, while in company of men or women of her social
circle, or in the company of the corespondent, she misconducted herself in any way, or was
guilty of any act of impropriety, indiscretion, or even frivolity. Nor is there any evidence to show
any act in her home which might subject her to suspicion or criticism, other than with this negro
chauffeur. All the evidence as to her conduct and acts, except as to the Jeffersonville occurrence, relates to what happened in her home, and it is upon such evidence I must rely to
adjudge her guilty of all or any of the three acts of adultery mentioned.
[1] The thought of this cultured, refined, and modest appearing white woman in sexual relation
with any negro is revolting to the senses. The acts and conduct with which she is charged by
witnesses for petitioner are peculiarly contrary to the universal teachings and practice of the
white society to which she belonged, which is absolutely opposed to any business or social
alliance between the races and association of the nature charged against her with a black man,
is repugnant to white women of her social standing, is unnatural, and rarely found to exist. So
objectionable is it to the white race that in many states of our Union marriage between the races
is prohibited. To convince me that defendant has departed from the traditions of her race and

has fallen so low in the human scale and has been so grossly immoral as to place herself
among the most debased of womankind the evidence must be so convincing and compelling as
to leave no doubt whatever existing in my mind as to her guilt.
[2] Our courts have said that the burden of proof is upon him who asserts the adultery, and
that burden must be clearly sustained. To establish adultery the circumstances must be such as
to lead the guarded discretion of a reasonable and just mind to the conclusion of guilt. The
judgment must not be rash and intemperate, moving upon appearances that are equally capable
of two interpretations. If the circumstances, taken both singly and together, admit of two
interpretations, that interpretation which favors innocence should be adopted (Berckmans v.
Berckmans, 17 N. J. Eq. 453: Culver v. Culver. 38 N. J. Eq. 163; Hurtzig v. Hurtzig, 44 N. J. Eq.
329, 15 Atl. 537; Luderitz v. Luderitz, 88 N. J. Eq. 103, 102 Atl. 661), and this rule our courts
have followed in determining the evidence insufficient to establish adultery in many cases.
Osborn v. Osborn, 44 N. J. Eq. 257, 9 Atl. 698, 10 Aft 107, 14 Atl. 217; Brown v. Brown, 63 N. J.
Eq. 348, 50 Atl. 608; Farrow v. Farrow, 70 N. J. Eq. 777, 60 Atl. 1103; Letts v. Letts, 79 N. J. Eq.
630, 82 Atl. 845, Ann. Cas. 1913A, 1236 ; Earl v. Earl, 81 N. J. Eq. 444. 86 Atl. 940; Cooper v.
Cooper, 82 N. J. Eq. 581, 91 Atl. 731; Id., 82 N. J. Eq. 660, 91 Atl. 732; McKenna v. McKenna,
84 N. J. Eq. 190, 96 Atl. 890.
[31 All the direct evidence to prove acts of familiarity to indicate illicit inclination, to prove
opportunity and to prove adultery, comes from the lips of two white detectives and four negroes.
The detectives were employed by petitioner after he says he was informed of his wife's relations
with Simmons by one of the four negroes, and the four negroes were employed as house servants in and about the Sargent home, one of them being a detective placed therein to spy on the
wife. All these negroes save one, and including the negro woman detective, are still in the
petitioner's pay.
I shall first consider the testimony tending to show inclination and opportunity.
Ida Lewis, a negress, testified that she was employed at general housework in the Sargent
home from some time in 1918, and still works there for the petitioner; that previous to 1918 she
had been in Mrs. Sargent's employ, but had been discharged for stealing some trunks tilled with
linen and had been taken back; that Mrs. Sargent told her she thought it perfectly proper for
whites and blacks to intermarry if they loved each other, and that witness disagreed with her,
and Mrs. Sargent argued in favor of mixing the races, while witness argued against it; that Mrs.
Sargent told witness she thought Simmons handsome; that witness heard Simmons curse and
swear at Mrs. Sargent, who said she was afraid to tell her husband about it; that Mrs. Sargent
showed witness a photograph (of a white man), and said it was the picture of her lover or
sweetheart, and said she did not love her husband; that witness stood in the doorway of Mrs.
Sargent's bedroom, saw Mrs. Sargent in bed in her nightdress, with her bare feet sticking out
from under the covers, and Simmons standing at the foot of the bed, and when he saw witness
he ran into a closet, and neither Mrs. Sargent nor the witness said anything to each other; that
on another occasion witness saw Simmons in Mrs. Sargent's bedroom and Mrs. Sargent was
dressed only in her underwear, corsets, shoes, and stockings, and when witness came to the
open door, Simmons ran out past witness, and no one said a word.
Charlotte Lunford, an uneducated negress, who does not know her age, testified that she was
employed at general housework and as cook in the Sargent home from some time in 1916 until,
as she says, Mrs. Sargent drove her out of the house shortly after July, 1918, when Simmons
and his wife came there to work, and she returned again in about three months, and still works
there for the petitioner; that Mrs. Sargent did not like her, and witness did not like Simmons, or
Simmons' wife, or Mrs. Sargent's treatment of Simmons and his wife, because witness had to
wait on them; that a month after Simmons was employed she observed acts of intimacy
(although Mrs. Simmons was then living at the house); that two months after Simmons was
employed she saw them drinking together in Mrs. Sargent's bedroom several times, and witness
was sent by Mrs. Sargent for glasses and cracked ice (presumably .to the kitchen, where Mrs.
Simmons was working), and witness drank wine and whisky with Simmons and Mrs. Sargent in
the latter's bedroom; that Simmons went to Mrs. Sargent's room every day and sometimes three
times a day, and witness saw Simmons in that room lots of times, drinking wine, and several
times when Mrs. Sargent was in her nightdress with a robe over it, or was in bed; that Mrs.
Sargent told witness she thought, Simmons nice and handsome; that witness once heard Mrs.
Sargent call Simmons "Sweetheart" and "Dearie" over the telephone, and she once saw
Simmons hug Mrs. Sargent, in the second story hall, after Simmons had walked past witness in
first, story hall to go up stairs to Mrs. Sargent..
Viola Jones, a negrees, testified that she was employed at the Sargent home as a nurse for
the Sargent's adopted baby, from the first Monday in June,. 1919, and still works there for the
petitioner; that she was a detective in the employ of the detective agency petitioner had
engaged. and was "planted" in the house, and had done detective work in three other divorce
suits; that it was Mrs. Sargent's custom to breakfast in bed; that once Mrs. Sargent told witness
she wanted to see Simmons, as she intended going out, and Simmons came to the bedroom
and stayed there five minutes, and in the presence of witness got a drink of whisky, and invited
Mrs. Sargent to have a drink, too, and that Mrs. Sargent declined the whisky, but said she would
have wine, and Simmons got her a bottle of wine; that Mrs. Sargent asked witness if she did not
think Simmons handsome; that Simmons took a bath on the attic floor where witness' bedroom
was located, and after taking the bath put on a suit of Sargent's underwear and asked witness
for powder, which witness got and took to the open bathroom door and handed to Simmons
while be was in his undershirt and was putting on his drawers; that in addition to a telephone
extension in the attic there was a "dictaphone" (dictagraph?) in her room, placed there by the
detectives, over which she and the detectives could hear everything that happened all over the
house; that over the telephone extension she heard three conversations between Mrs. Sargent
and Simmons, once she asked him to come to get something to eat, another time she told him
she could not talk to him because the servants were listening, and in the third conversation she
asked Simmons to come to the horse, and he inquired if Mr. Sargent was there, and she replied,
"No," and Simmons came later.
Mack Jetter, a negro, testified: That be was employed by petitioner in 1918 and until the spring
of 1919, cutting grass and removing garbage at the Sargent home, but is not now in petitioner's
employ. That on an occasion when he was engaged in washing windows in the second story of

the house, between 9 and 10 o'clock in the morning, Mrs. Sargent, from her bedroom, called
Simmons, who was downstairs, to come up, and Simmons came up the back stairs and walked
into the room. That when Simmons went in witness was 10 feet away, and then moved up to
within 5 feet of the door, and beard Simmons say to Mfrs. Sargent: "What do you want me for?"
and her reply: "You know what I want. Why didn't you come before?" That the bedroom door
was open sufficiently wide for witness to see that Mrs. Sargent was lying in bed with her arm
outstretched, and that Simmons took her hand, and that she pulled him to her, and witness then
walked away. That he never told this story to any one up to the day he testified. In the first part
of his testimony he fixed the date of this occurrence as the spring of 1919, and later on he said it
was the latter part of October or the first of November, 1918.
August S. Tienken, a detective employed by petitioner's solicitors about the middle of May,
1919, was secreted in an attic room in the house, with the knowledge of all the servants, on
eight or ten occasions from May 22 to July 11, two of such occasions being when the solicitors
had informed him that Sargent would be away from home all night, and on one occasion be
remained in the attic roam three consecutive days and nights. He had run an extension line from
the house telephone to his attic room, and he listened in on telephone conversations. A signal
wire had been run, under his direction, along the attic stairs from a push button placed at the
bottom of those stairs at the second floor, to the attic room he occupied and at his end there was
a buzzer or flash. He had given Charlotte instructions to press the button whenever she caught
Simmons and Mrs. Sargent in her bedroom under compromising conditions. He testified that the
automobile went out a great deal, and in June and July he had it trailed when Simmons and Mrs.
Sargent were in it; that while in his attic room be heard mumbling sounds of conversation
between Mrs. Sargent and Simmons in her room five or six times, continuing from 25 to 40
minutes; that on one occasion he heard them talking and laughing in her bedroom as late as
9:30 p. m. for 25 minutes; that he could distinguish nothing that was said; that over the telephone extension he heard Mrs. Sargent call Simmons "Dearie"; that when he commenced
operations May 22, he talked with Charlotte. gave her instructions, and found her faithful to him;
that he has no record of the dates he was in the house, or of the dates he heard the talks in Mrs.
Sargent's room, or of the dates he listened to telephone conversations.
Albert W. Wilsdon, a detective associated with Tienken, commenced work on the case May 26,
and installed signal wires and the telephone extension. He stayed in the attic room on four
occasions, twice over night and the other two times for but a few hours. He testified that he
heard the mumbling voices of a man and woman in Mrs. Sargent's room twice, once in the
morning and once in the evening; that he followed the automobile on various occasions when
Mrs. Sargent and Simmons were in it, riding a bicycle or motorcycle. He could not give dates for
any of the occasions to which he testified, further than to say they all occurred during the period
from May 26 to July 11.
Mrs. Sargent and Simmons positively deny all these alleged occurrences.
[4] I think this case a striking example of the reason for the rule that, while the testimony of
detectives, paid spies and household servants is competent, it should be scrutinized carefully,
and should not be relied on unless it is corroborated. Cane v. Cane, 39 N. J. Eq. 148-150;
Hurtzig v. Hurtzig, 44 N. J. Eq. 329-334, 15 Atl. 537; McGrail v. McGrail, 48 N. J. Eq. 532, 22 Atl.
582, reversed 49 N. J. Eq. 348, 25 Atl. 963 ; Brown v. Brown, 63 N. J. Eq. 348, 50 Atl. 608 ;
Farrow v. Farrow, 70 N. J. Eq. 777, 60 Atl. 1103; Slack v. Slack, 89 N. J. Eq. 589-594, 105 Atl.
894.
If this testimony is to be believed, it shows this woman to be a reckless, abandoned adultress,
careless, to the point of indifference, in her relations with Simmons, carrying on her liaison with
wide open doors, intent only on gratifying an abnormal, licentious desire, at all times of the day
and night, giving no heed to the presence of her servants, who came and went about the house
freely, attending to their household duties, and, indeed, making the servants her associates and
confidants in her illicit affair with Simmons. The composite story is so improbable as to be
unbelieveable, and because of its incredibility and its source, I decline to accept it as true. To
accept such a story would be to say that every woman in her home is at the mercy of servants
who, for pay or to satisfy a grudge, might relate a tale which only their mistress and the alleged
corespondent could deny.
[6] I know it has been said that the denial of the defendant is entitled to but little weight, but I
understand by that, that when the guilt is indubitably established, the defendant's denial is of
little value. It would be an unfair rule that, with relation to testimony such as I have quoted, her
denial under oath should be cast aside merely because she is the defendant. I think the rule is
that, where there is an endeavor to establish circumstances from which it is sought to draw an
inference of her guilt and her veracity is unimpeached, her testimony should be given the same
weight as any other witness, except only as affected by her interest.
Let us see what the testimony I have been considering amounts to. No definite date was given
for any occurrence testified to, which made refutation impossible except by a circumstantial
denial. The servant witnesses, with the exception of Jetter, not only had ill feeling toward Mrs.
Sargent and Simmons, but they were in petitioner's pay up to the time they testified. None of the
specific instances cited by the servants, except Viola, tending to prove improper attachment
between Mfrs. Sargent and Simmons, appear to have occurred while the detectives were in the
house, and so, for the period of over seven weeks while the detectives were there and Mrs.
Sargent and Simmons were under the closest surveillance, no act transpired which the
detectives thought of sufficient importance to call them from their hiding place and furnish them
with the evidence they were eager to find and were there to find, although petitioner was away
from his home each business day, and on at least one occasion prior to July 11 remained away
from home for a night or nights, and the defendant is pictured by her servants as a woman
devoured by a passion for a negro servant, which she could not control. Simmons was at the
house daily, and the servant spies were on the watch to catch him with Mrs. Sargent. When they
went out in the automobile they were followed by a detective, but, no evidence of what he saw
having been offered, the inference, of course, is that he saw nothing wrong. I would not doubt
that Simmons went occasionally to Mrs. Sargent's room, especially during the period he lived in
the house. The duties of his position required that he should receive orders from her, and
perhaps on some of these occasions Mrs. Sargent was not dressed in street costume. It is not
strange that a servant like Simmons should have the run of the house, and it is well known that

familiarity with the continuous presence of a servant in the house results in the mistress being
careless of her state of dress in his presence.
It was Simmons' conduct with Mrs. Sargent, as reported to Sargent by Charlotte about May 3,
1919, which moved Sargent to place detectives in his home, so that apparently Simmons was
the only man under suspicion, and he is the only man against whom testimony was directed.
That being so, I cannot understand why it was thought necessary to run an extension telephone
line to the attic room to listen to conversations with a man whose duties called him to the house
daily, and to whom, therefore, there would be little to say over a telephone, especially of an
incriminating nature. The two detectives testified prior to Viola. They spoke of but two
mechanical devices installed to aid in their work, namely, the extension telephone line and the
signal wire, and they made no mention of a dictagraph, but Viola told of a "dictaphone," which
she described as an instrument, with a receiver in the attic, by means of which she could hear
all over the house, and over which she could bear everything. Because of her testimony, and
also because I cannot see the necessity for an extension telephone line, I am led to believe that
the extension telephone was in reality a dictagraph, an instrument with which the detectives, in
the nature of their business, must have been familiar and would be likely to use. In any event,
according to Viola, the dictagraph was there, and as the detectives failed to mention it, the
inference is that they deliberately endeavored to suppress the fact of its existence, because they
heard nothing over it which would incriminate Mrs. Sargent. The one spot in the house where
they surely would place the transmitting end of this instrument was Mrs. Sargent's bedroom, and
if Simmons was in that room on the many occasions and for the length of time the detectives
say he was, they would not have had to testify to "mumblings" from the room, but would have
had actual conversations to report.
Another circumstance which indicates the improbability of the testimony as to undue
familiarity and sexual intimacy between the persons in question is the fact that during
practically the whole period covered by the witnesses from whom I have quoted, Mrs.
Sargent was suffering from gonorrhea and its effect upon her system. October 1, 1918,
Sargent went to a physician, and for six or eight months thereafter he was under treatment for
that venereal disease. A few days after October 1 he told his wife he feared he had the disease,
and that he thought it a recurrence of an attack he had had 12 years prior, before marriage, and
October 9 he took her to his physician, who told her she had the disease too. From about the
middle of October to early in January, 1919, Mrs. Sargent was sick in bed as the result of the
disease, and from January to July she suffered from inflammatory rheumatism as an after result,
and was under the doctor's care and preparing for an operation, which was performed
September 3, 1919. I pause here to say that I cannot determine from the evidence whether the
petitioner or the defendant had gonorrhea first. I observe, however, that he was the one first
spoke of having it; that she apparently was not aware she had it until he took her to his
physician; that he was the first to seek treatment; that one of his medical witnesses testified that
it was not possible to have a recurrence of the disease from an old attack 12 years after the old
attack had been cured, and that if the petitioner was sure be had not contracted it from a woman
other than his wife, it impresses me as strange that he did not employ his detectives in October,
1918. It does not seem likely that during this period of her illness and suffering, Mrs. Sargent
would have indulged continuously in intercourse with Simmons, and I note here that the act of
familiarity covered by Jetter's testimony, and which, if true, would indicate that adultery was
about to be committed, occurred according to the date he last fixed, at a time when she was sick
in bed. I conclude this comment on the evidence concerning inclination, desire, and opportunity
with reference to the fact that as to the telephone conversation testified to by Charlotte, wherein
that witness said she heard Mrs. Sargent call Simmons "Dearie" or "Sweetheart," Charlotte was
proved to have told a falsehood. This was the only instance covered by her testimony to which a
date was attached, and defendant was able to call three reputable and disinterested ladies to
testify that on the occasion fixed by Charlotte, the telephone conversation did not occur.
I shall now take up the three specific acts of adultery which petitioner's counsel contends have
been proved. The first is alleged to have occurred at Jeffersonville, N. Y., but is not set out in the
petition. The petitioner therefore could not have learned of it until after his petition was filed, and
be apparently did not think his evidence sufficiently strong to amend his petition and set it up.
The testimony with reference to it was given without objection from defendant's counsel. It
appears that Mrs. Sargent and her sister, Mrs. Kuchman, went be automobile from Jersey City
to visit a sick friend, who was dying in a sanitarium at or near Jeffersonville. The trip was
planned by petitioner, and Simmons drove the automobile. The party spent the night of October
14, 1918, at a hotel in Jeffersonville, and Mrs. Sargent and Mrs. Kuchman were assigned a
room together, and Simmons was assigned a room nearly opposite, across a hall. The proof of
the alleged adultery depends entirely upon the testimony of Mrs. Elizabeth L. Lathrop, a resident
of New York City, who refused to come to this state to testify; her evidence having been given
before a master in New York City. She had known the Sargents 5 years, had visited their home
and they had visited hers, and she called herself Mrs. Sargent's friend. She also knows Simmons. She testified that before the trip to Jeffersonville Mrs. Sargent told her that Simmons had
a great physical attraction for her, and she for him, and that she "was going to have him"; that on
this occasion Mrs. Sargent had come to witness' home in her automobile with Simmons driving,
and that Mrs. Sargent told witness she (Mrs. Sargent) had told Simmons she was going to tell
witness of their attraction for each other; that Mrs. Sargent wanted witness to go with her on the
automobile trip to Jeffersonville as chaperon, because she (Mrs. Sargent) "intended to stay with
him" (Simmons); that witness told Mrs. Sargent she was crazy, and Mrs. Sargent said she
realized it, but could not help it because she felt that way toward Simmons; that witness refused
to go under such conditions; that because of this statement by Mrs. Sargent, witness then wrote
Mrs. Sargent a letter, stating that she would probably never see Mrs. Sargent again; that
subsequently Mrs. Sargent told her that she had taken the trip in question, but never told her
about staying with Simmons at Jeffersonville; that in the spring of 1919 witness had painted
some china for Mrs. Sargent, and Simmons came to get it, and told witness that on the occasion
of the trip to Jeffersonville Mrs. Sargent had stayed all night with him at the hotel, and that she
had tried to get connecting rooms, but could not, and that Mrs. Sargent was in his room, and
that Mrs. Kuchman, who was on the trip with them, made no objection to Mrs. Sargent staying in
his room; that in or about May, 1919, Simmons told her Mrs. Sargent was about to discharge

him, and he asked witness to find him a place, which witness did, but Simmons would not take
it; that witness then sent for Mrs. Sargent, who came to witness' home in her car with Simmons,
when Mrs. Sargent told witness that Simmons wanted to leave her employ, and Mrs. Sargent
said she was glad to have him go, and hoped he would, but witness said nothing to Mrs.
Sargent about what Simmons had told her of the Jeffersonville trip; that after the raid she met
Mrs. Sargent, when Mrs. Sargent told her about the raid, and that Simmons had been shoved
into her room and the door locked on the outside; that witness went on a two or three-day
automobile trip to Massachusetts July 4, 1919, with Mr. and Mrs. Sargent (Simmons drove the
car on this occasion); that witness had been with Mrs. Sargent and Simmons in the automobile
on several occasions, and the only act of familiarity she saw was that "more than once she (Mrs.
Sargent) cast a glance at him,
significant look, just as one might recognize any one," which the witness would not have
remarked except for what Mrs. Sargent had told her about Simmons.
[6] Mrs. Lathrop's testimony is uncorroborated, and is denied by Mrs. Sargent and Simmons. It
amounts to this: That Mrs. Sargent told her she intended to defile herself on this trip to
Jeffersonville by committing adultery with a negro and she wanted Mrs. Lathrop to debase
herself and to become a particeps criminis by accompanying her, and that Simmons afterwards
told her the adultery had been committed (which means that Mrs. Tuchman was a party to it),
but that Mrs. Sargent made no such admission. This uncorroborated story cannot be accepted
as proof of adultery, because the fact of the actual commission of the act depends on what
Simmons told the witness, and Simmons' statement cannot be received as evidence against
Mrs. Sargent. Graham v. Graham, 50 N. J. Eq. 701, 25 Atl. 358; Kloman v. Kloman, 62 N. J. Eq.
153, 49 Atl. 810; Howard v. Howard, 77 N. J. Eq. 186, 78 AM 195. At the most, it goes to affect
his credibility in his denial. But this story is so improbable I am loath to accept it. It is contrary to
human experience that the defendant should confide to another her intention to commit adultery,
and especially an act of so revolting a nature, and it is also contrary to human experience that if
such confidence were given Mrs. Lathrop would not in disgust promptly terminate her friendship
with so degraded a woman. But we find Mrs. Lathrop continuing her intimacy with Mrs. Sargent,
even after Simmons told her the act had been committed.
In addition to Mrs. Sargent's denial of adultery at this time and place, there are the supporting
facts that a few days before this trip Mrs. Sargent had discovered she had gonorrhea, and that
she had undergone an operation for the removal of a polypoid growth at the neck of her womb,
and her condition while at Jeffersonville was such that she had to secure the service of a physician, so that she could scarcely have been in a condition to indulge in a night of sexual
intercourse. In further corroboration of Mrs. Sargent's denial is the testimony of Mrs. Kuchman
that she and her sister occupied the same room together the whole night, and that Mrs. Sargent
did not commit adultery with Simmons. I consider this charge fully disproved.
The second act of adultery alleged depends wholly on a story told by Charlotte Lunford. She
did not fix the date of the incident to which she testified, but it seems to have been about May 1,
1919. She testified that Mrs. Sargent and Simmons came home about 9 p. m. and went to Mrs.
Sargent's beds room, the witness accompanying them; that Simmons brought a bottle of wine
and a bottle of whisky to the room, and witness made some sandwiches, and the three sat in the
bedroom eating and drinking; that in opening the bottle, some wine was spilled on the wall,
furniture, and floor; that some time during the evening Mrs. Sargent removed her clothing, and,
wearing nothing but a night gown, robe, and slippers, lay on the floor; that Simmons removed
his coat and leggings, and lay "like a dog" on the floor beside Mrs. Sargent; that witness asked
Simmons whether he was not going upstairs to the servants' quarters to sleep, and he replied,
"No, I am going to sleep here;" that witness then went upstairs, leaving Mrs. Sargent and
Simmons in separate rooms on the bedroom floor, and when she came down at 6 o'clock the
following morning, they were still in the separate rooms, each in bed; that witness went back to
her own room and slept until 8 o'clock, when Mrs. Sargent called her, and then Simmons came
up to the servants' bathroom, washed his face and hands, and went out. Mrs. Sargent denies
this story as related by Charlotte, but says there was an occasion when wine was spilled in the
room in question. She says that when she left house that morning to attend a function in New
York she told Charlotte to place a bottle of wine on ice because she expected to bring a friend to
spend the night; that she returned about 11 p. m.; but the friend did not come with her; that
Charlotte told her she had not put the wine on ice, but she directed Charlotte to bring it to her
room, and when Charlotte opened the bottle the contents spurted on the wall; that she told
petitioner about it the next day; that Simmons did not enter the house that night. Simmons also
denies the incident. The impression Charlotte's story makes on my mind is that it is incredible. I
cannot believe that this white woman would entertain two negroes in her bedroom, and while
almost naked perform the antics testified to with Simmons, and commit adultery practically in the
presence of Charlotte. Bearing in mind, too, that Charlotte allied herself with the detectives for
the purpose of furnishing evidence to the petitioner, and was and still is in the pay of the
petitioner, I refuse to accept her uncorroborated story as true as against defendant's denial.
The third act of adultery is alleged to have occurred on the night of July 11, 1919. This is the
night on which the so-called "raid" took place, and the proof depends on the testimony of
Charlotte, Tienken. and Wilsdon, denied or explained by Mrs. Sargent and Simmons. The story
told by the two detectives is that they were concealed in the attic room that night; that they had
arranged the signals with Charlotte, and saw her on and off during the evening; that at 9:15
Simmons came up to the attic, tried the doors, including theirs, and went downstairs to the
bedroom floor; that they heard continued mumbling voices coming from Mrs. Sargent's room;
that at 9:50 they were outside their room, looking down the attic stairs; and saw Mrs. Sargent, in
her nightdress and pink rube, walk past the foot of the attic stairs, and that Simmons was behind
her, and they heard her say: "Stop, Charles;" that she went to the bathroom, remained there five
minutes, and returned to her room, from which direction they continued to hear voices; that at
10:40 they were on the way down the attic stairs, and saw Charlotte pressing the button at the
end of the signal wire, and heard some one cry, "Charlotte, Charlotte;" that they rushed down
the stairs to Mrs. Sargent's room, found the door fastened, and Tienken locked the door on the
outside with a key he carried; that they heard some one open a window inside the room, and
Tienken ran down one flight of stairs to the front dour, which he was delayed in opening by a
chain bolt thereon, and when he finally got out he saw Simmons running down the street 500

feet away; that Tienken then looked up at the window in Mrs. Sargent's room, and saw her
standing there in her nightdress and pink robe; that when Tienken found Mrs. Sargent's room
door fastened, Wilsdon ran to a window, from which he saw Simmons jump from a window in
Mrs. Sargent's room and run away, and he also saw Mrs. Sargent in her nightdress and pink
robe that they then telephoned Mr. Huck, petitioner's solicitor of record, who arrived at the
Sargent home in about 15 minutes.
I now pass to the version given by Mrs. Sargent and Simmons as to what happened preceding
Simmons' hasty exit from the room. She had been out in her automobile with her sister and
niece, and on the way home had purchased a quantity of groceries and vegetables, which made
a number of parcels, arriving home at 8:20. She went to her room,removed her hat and coat,
and came down to the kitchen, where Charlotte was. Simmons made a couple of trips to and
from the automobile, bringing in the parcels, which Charlotte asked him to help her unwrap and
put away the wrappings. Charlotte told him she had been sick all day and had been sleeping,
and asked him to sit awhile with her, which he consented to do. Charlotte then prepared
something for Mrs. Sargent and him to eat; Mrs. Sargent having her meal in the dining room
and Simmons his in the kitchen. Mrs. Sargent was uneasy because Mr. Sargent was to be away
all night, and said she felt that some one was in the house, and she told Simmons to try all the
doors and windows before he left, and to get some whisky to give Charlotte for her illness. He
took the car to the garage, and was back again about 9 o'clock, and helped Charlotte with the
parcels, spent some time with her in the kitchen, got a bottle of whisky, which he gave to
Charlotte, and then proceeded to examine all the doors and windows from cellar to attic, and
when he came down from the attic, Charlotte was standing in Mrs. Sargent's bedroom door, and
he stopped to report to Mrs. Sargent that everything was all right in the house. Mrs. Sargent was
sitting in her room fully dressed, sewing. Charlotte, with a small glass of whisky in her hand,
stepped into Mrs. Sargent's room, placed the glass on a dresser, and asked Simmons if he
would like to have a drink, and, upon Simmons replying that he would she said: "There it is; get
it;" and upon Simmons stepping in the room, Charlotte stepped out and closed the door. Mrs.
Sargent called, "Charlotte, Charlotte, what are you doing?" and Charlotte opened the door and
said, "I was only funning." Mrs. Sargent said, "How dare you do such a thing?" and Charlotte
pulled the door to again and the lock clicked. There was no lock or bolt of any kind on the inside
of the door (no witness except petitioner testified that there was), and neither Mrs. Sargent nor
Simmons fastened the door. Then came the sound of running feet to the door, and Simmons
said the noise sounded to him like horses, and he heard knocking on the door, and his name
was called; that a thousand thoughts were in his mind, and he did not know whether there were
robbers in the house or somebody was going to be killed; that he knew he was locked in a room
where he had no right to be, and he followed his impulse and jumped from the window.
Charlotte was a witness called by petitioner. Although she was friendly to petitioner and an
observer of and actor in all the events which transpired the night of July 11, before, at, and after
the raid, she was not asked on her direct examination to tell of that night, and her story was first
brought out on cross-examination. She swore that she knew the petitioner was to be away that
night, and that when the detectives came to the house that morning they told her there would be
a raid that night; that Mrs. Sargent and Simmons ate their meal in the kitchen, and had wine and
whisky to drink; that Simmons washed the dishes, and the three went up to Mrs. Sargent's
room, sat there and talked and drank; that Mrs. Sargent said she felt as though some one was in
the house, and Simmons went out and examined the house; that after Simmons came back he
said he was going to have a good time, and Charlotte went upstairs, where she remained 20
minutes (with the detectives), and Mrs. Sargent called her, and she came down, and the
detectives came, too; that she went to Mrs. Sargent's room, where Mrs. Sargent was in her
nightdress and Simmons was sitting on the foot of the bed; that she left the room and remained
in the hall, and 13 minutes afterwards she saw the detectives in the hall at the room door; that
the bedroom door was open, and she closed it, and, after closing it, opened it again halfway;
that the detectives were then a yard away, and one of them closed the door for the second time
and locked it; that she closed the door for the first time because she was "funning" with Mrs.
Sargent and Simmons.
We have sharply contradictory statements of the events on the night in question, and the
problem is to find where the truth lies. The story told by Mrs. Sargent and Simmons is probable.
The circumstances surrounding the raid may have been exactly as they describe, while
discrepancies are apparent between the story told by the detectives and that told by Charlotte,
and there are improbabilities in the stories told by the detectives and Charlotte. The striking
difference between the detectives and Charlotte is that the detectives say the bedroom door was
closed and fastened when they came downstairs, while Charlotte says it was halfway open, and
that the detectives stood by it several minutes, and one of them closed and locked it on the
outside. If the door was open, as Mrs. Sargent, Simmons, and Charlotte say it was, and it was
true that Mrs. Sargent and Simmons had been in the room from 9:15 to 10:40, and Charlotte
had seen Mrs. Sargent in the room undressed, why did the detectives not walk in through the
open door? The only answer seems to be that the detectives' statement was not true; that their
hope of obtaining real evidence that night had not been realized, and they proceeded to
manufacture it by locking the door. If Charlotte went upstairs after leaving Mrs. Sargent and
Simmons in the room, she must have seen the detectives, and must have told them that their
evidence was at hand, but they did not come down. Twenty minutes later Charlotte says Mrs.
Sargent called her, and she went down. If Charlotte heard the call, so did the detectives, and
they could have come down with Charlotte. Charlotte says they actually did come down with her.
The bedroom door was then open, and Charlotte walked in. Mrs. Sargent was in bed, and
Simmons was sitting on it. Charlotte walked out, leaving the door open, and the detectives were
in the hall. Why did she not tell them to walk in? Their evidence was at hand. Again, they saw
Mrs. Sargent pass the foot of the attic stairs in her nightdress, and knew from what she said that
Simmons was in the hall with her; they saw her go to the bathroom, where she remained five
minutes. Their evidence was again at hand, and they could have caught her undressed, and
Simmons probably in similar attire. If their story is true, it is incomprehensible why they waited
from 9:15 to 10:40 to come downstairs, and, when they finally did come, why they locked the
evidence in the room where they could not see it, instead of breaking down the door. Detectives
are usually not so delicate that they hesitate at using force, and Tienken held a letter dated June

19, 1919, signed by petitioner, covering just such an emergency, for by it petitioner notified "all
whom it might concern" that Tienken and Mr. Huck, or either of them, were authorized to act for
petitioner in and about his residence as though he were personally present. It may be argued
that they thought they had the evidence secure in the room, and that they wanted Mr. Huck to
see it. They must have known that in the time which would elapse before Mr. Huck could arrive,
the man and the woman could clothe themselves, arrange the bed, and dispose of all outward
appearance of guilt, and also concoct some explanation of their presence together. But the
detectives knew immediately that part of their evidence had gone out of the window (and it
should be noted that Simmons went at once and must have been fully clad for it does not
appear that any of his clothing remained in the room) and both detectives saw Mrs. Sargent at
her window undressed. What could have been the reason for keeping her in her room alone,
and why not then break down the door, catch her in disarray, with whatever evidence of guilt
there might be in the room, and confront her with a charge of adultery before she had time to
collect her senses? There were three witnesses then present, and her state of dress, if what
they say is true, could not be explained away. My conclusion is that these men, with Viola and
Charlotte, had been seeking evidence for seven weeks and had not found it; that their employer
had become impatient, and had absented himself from home on this night for the express
purpose of providing the opportunity for an act of adultery, and Mr. Huck, according to his
testimony, expected to be called this night; that Charlotte, who seems to have supplanted Viola
as a detective, and whose tale of acts of impropriety by Mrs. Sargent had resulted in the
employment of the detectives, and the detectives had to "make good," and that when they found
that Mrs. Sargent and Simmons were not misconducting themselves, they adopted the
expedient of locking them in a room, using the key which Tienken had been carrying for weeks
for that very purpose. I am not willing to accept the doubtful story of paid spies, with its
discrepancies and improbabilities, as evidence of adultery between this white woman and this
negro.
What happened when Mr. Huck came? Tienken unlocked the door and Huck, Tienken, and
Wilsdon entered the room. Mrs. Sargent was fully dressed, except that Mr. Buck says her shoes
were unlaced or unbuttoned, which she denies, and I do not consider it important whether they
were or not. She had been alone in the room 15 minutes or more, and she must have known
that she was under suspicion for having committed a crime with a negro, and, whether she was
innocent or guilty, she must have been disturbed and excited when she faced Mr. Huck. I can
believe that Mr. Huck himself was not calm and collected when under these trying conditions
he confronted this woman whom he had known socially. He said she was not in her usual calm
frame, but that she was neither hysterical nor agitated. She said she was like a crazy girl, and
Tienken testified she carried on awfully. She said that she immediately said to Mr. Huck: "You of
all men, how could you do such a thing? Where will I go? What shall I do? I have done no
wrong. Why have you done this thing?" And Tienken said to her, "It's a fine thing to have a
nigger in your room," and she said: "I want that man (Tienken) put out of my house," and told Mr.
Huck she wanted to talk with him alone. Petitioner's counsel argued that the conversation which
followed indicates her guilt because she did not specifically assert her innocence. Mr. Huck and
Mrs. Sargent have not the same recollection of that conversation, but I think it sufficient to say
that Mr. Huck did not charge her with adultery, nor ask her to explain Simmons' presence in her
room, and that there is nothing in what he testified she said, which can be construed as an
admission of guilt. Tienken testified that prior to her private conversation with Mr. Huck she was
protesting her innocence and saying she had done no wrong. She seems to me to have been an
overwrought woman, not knowing what she was saying, and mainly concerned with what was to
be done with her.
Petitioner's counsel argued that Mrs. Sargent's subsequent conduct, taken in connection with
all the evidence against her, indicates guilt. He referred to the fact that about a month after the
raid she employed Simmons' wife as a domestic in her household. This suit had then been
commenced. She was unstrung and ill, and was about to undergo an operation, and was without
domestic help, and she may have turned to Mrs. Simmons at a time when, as everyone knows,
servants were difficult to secure; or it may have been that her experience with servant spies had
been such that she did not know whom to trust, and she felt she would be safer with the
corespondent's wife than with any one else. But whatever her reason may have been, it cannot
be construed as any evidence of guilt with Mrs. Simmons' husband.
Counsel also referred to the fact that in the latter part of the month of August, 1919, Mrs.
Sargent and her sister took an automobile trip to Vermont to see her adopted child, and that
Simmous drove the car. Mrs. Sargent explains this occasion be saying that her brother-in-law
arranged the trip for her, sent her in his car, and that he engaged Simmons for the trip because
Simmons had been to the Vermont town before and knew the road; that before allowing
Simmons to drive the car she asked her counsel if it would be proper for her to go with him, and
received his opinion that it would, and that she scarcely spoke to Simmons on the trip. It may
not have been good judgment or good taste to permit Simmons to go with Mrs. Sargent and
Mrs. Kuchman, but if Mrs. Sargent was innocent of the charges against her, the fact that she did
consent to make the trip with him as chauffeur cannot militate against her, and I am unwilling to
convict her of the crime charged against her because of this incident. Counsel referred to three
interviews had between Mrs. Sargent and petitioner's solicitors at the latter's office, at her
request, in September and October, 1919, at which Mrs. Sargent asked the solicitors and her
husband to drop the suit, and he argued that because she did not at the interviews assert her
innocence of the charges made in the petition then on file, such circumstance is an indication of
her guilt. As to this, I think it sufficient to say that the first interview was arranged because Mrs.
Sargent said she wanted to meet petitioner face to face and talk with him, alone, her avowed
purpose being to convince her husband that his charges were groundless. At this interview she
asked her husband to talk with her alone, but he refused, and he never granted her an
opportunity to tell him her version of the circumstances surrounding the raid. On this occasion
her answer in this suit, which contains a complete denial of the charges made against her, was
produced and read. Her attempt to make an explanation to her husband having failed and he
and his solicitors having asserted their intention of pressing the suit, the other interviews
followed because she said the publicity was killing her, and if petitioner insisted on divorcing her,
she begged his solicitors to consent to her going somewhere to get the divorce which petitioner

so much desired. I do not know how Mrs. Sargent at these interviews could farther have
proclaimed her innocence than she had already done by her answer, except by a reiteration of
what her answer contained, and if her husband refused to listen to the explanation she desired
to give him, of what use would it have been to make it to his solicitors? Counsel also referred to
alleged admissions made by Simmons of many acts of adultery with Mrs. Sargent. Such
admissions were testified to by two negroes, produced as witnesses on behalf of petitioner, one
of whom had been employed by petitioner's solicitors for the purpose of obtaining such
admissions. They are alleged to have been made after the raid, and after the local newspapers
had advertised Simmons as a negro Lothario. As I have already said, referring to the alleged
admission to Mrs. Lathrop, statements of this nature, if made by Simmons, are not evidence
against the defendant, and can only be considered as affecting Simmons' credibility as a
witness. I can disregard the whole of Simmons' testimony, and find myself unconvinced of the
charges against Mrs. Sargent. I do not think, however, that his testimony should be deemed
entirely worthless, but that what he said in court, under oath, should be entitled to some weight,
notwithstanding that on other occasions, when proud of his notoriety, he may have boasted of
his amatory prowess to two supposed friends of his own race, who may have been exciting him
to flights of imagination, either through expressions of envy, or by design to induce him to
commit himself. Counsel also argued that the explanation of Mrs. Sargent and Simmons as to
how they spent the time on the night of the raid from 8:20 to 10:40, failed to account for the
whole period. The answer is that both stated what they could recall of their movements, and did
not attempt to fix the time consumed in the performance of each detail. The evidence on behalf
of the petitioner as to what they did does not stand the test of probability. Simmons may very
easily have consumed 2 hours and 20 minutes in the performance of the various things which
be and Charlotte say be did, and, considering the testimony of all the witnesses, I am not
convinced that be was in Mrs. Sargent's room any length of time before the door was closed on
him.
The trial of this case consumed 4 1/2 days, and a mass of testimony was taken. In stating
these reasons for my conclusion that the charges against Mrs. Sargent have not been
sustained, I have relied for the facts upon such portions of the testimony as were written out
during the progress of the trial, upon my trial notes and upon my memory of the testimony. I
have not referred to all points made by counsel on both sides, such as the Nevada suit and the
photograph incident, because I feel that the evidence to which I have not referred can be of no
assistance to me in determining the issue, and this review of the case is now overlong.
[7] There is, however, one further question which requires consideration. Section 28 of the
Divorce Act (2 Comp. St. 1910, p. 2040) provides: "If it appear to the court that the adultery
complained of shall have been occasioned by the collusion of the parties, and done with an
intention to procure a divorce, or that the complainant was consenting thereto, then no divorce
shall be decreed."
If the first and second acts of adultery alleged have not been proved and the petitioner relies
on the third act, did his conduct as to that alleged act amount to "consenting thereto"? About the
1st of May preceding the raid, Charlotte had given the petitioner her version of the occurrence
on which the second act of adultery is based, and had also told him of acts of familiarity between
his wife and Simmons. Petitioner, therefore, had reason to suspect her of an inclination for illicit
relations with Simmons, and, suspecting, he should have taken the step which lay within his
power to keep Simmons away from his home, namely, discharge him and warn him never it
come to his house again. Instead, he retained Simmons in his employ. Thus he gave Simmons
the chance to be with his wife frequently in the automobile and also an excuse for and
opportunity to be at his house at all times during the day when petitioner was absent at his
business, and petitioner purposely, on at least two occasions between May 22 and July 11,
absented himself from home for a night or nights and be did all this, if not believing that
defendant would commit adultery, at least to facilitate it. He placed detectives in his home,
suborned his servants, received reports from his spies as to the progress of events, and on June
19, 1919, gave one of his detectives and Mr. Huck the letter before mentioned, conferring on
them full authority to act in and about his residence, which letter the detective exhibited to Mrs.
Sargent after the raid. He threw no protection around his wife. He did not even warn her against
intimacy with Simmons, but he left her in danger, and did nothing whatever to withdraw her from
Simmons' evil influence. For two months after he was in possession of Charlotte's information
he maintained friendly intercourse with her as though nothing had occurred to shake his faith in
her, treating her as though conditions were not unusual, even taking a two-day automobile trip
with her a week before the raid. Would an outraged husband, who had learned that a negro was
his wife's lover, want to be in the presence of a wife who had so dishonored him, without an
ulterior motive on his part? He went to Vermont July 11, leaving his wife alone in the house with
the two detectives and Charlotte, who had supplanted Viola as a detective and who was his pay.
Charlotte and the detectives knew there was to be a raid that night, and Mr. Buck expected it. It
is difficult to believe that petitioner did not know it too. It is also difficult to resist the conclusion
that be wanted her to commit adultery. Certainly his conduct does not indicate that he did not
want her to. It can be said that be was not anxious she should not, and it therefore follows that
be was willing she should.
Our courts have said that it is undoubtedly true that a man may watch his wife without warning
her of his intention to do so, but it is equally true that he may not actually participate in a course
of action leading to her downfall. He may not, with his eyes open, do that which may in some
degree conduce to it. If he sees what a reasonable man could not permit and makes no effort to
avert the danger, he must be supposed to see and mean the result. Hedden v. Hedden, 21 N. J.
Eq. 61 : Cane v. Cane, 39 N. J. Eq. 148; Warn v. Warn, 59 N. J. Eq. 642, 43 Atl. 916; Brown v.
Brown, 62 N. J. Eq. 29-65, 49 Atl. 589, reversed 63 N. J. Eq. 348-367, 50 Atl. 608; Delaney v.
Delaney, 71 N. J. Eq. 246, 65 Atl. 217: White v. White, 84 N. J. Eq. 512, 95 Atl. 197. If defendant
committed adultery on the night of July 11, the closing paragraph of Vice Chancellor Stevens'
opinion, affirmed by the Court of Appeals, in White v. White, supra, with but slight change in the
paragraph, represents; my view concerning the petitioner, viz., if consent or willingness that the
wife should commit adultery is a mental state and is to be inferred from conduct, it seems impossible to resist the conclusion that petitioner did desire his wife to commit the offense,' and that,

helping as be did to afford the opportunity which brought about the desired result, he was
consenting thereto.
WILLIAM H. BROWN, plaintiff-appellant, vs. JUANITA YAMBAO, defendant-appellee.
Jimenez B. Buendia for appellant.Assistant City Fiscal Rafel A. Jose for appellee.
REYES, J.B.L., J.: On July 14, 1955, William H. Brown filed suit in the Court of First Instance of
Manila to obtain legal separation from his lawful wife Juanita Yambao. He alleged under oath
that while interned by the Japanese invaders, from 1942 to 1945, at the University of Sto. Tomas
internment camp, his wife engaged in adulterous relations with one Carlos Field of whom she
begot a baby girl that Brown learned of his wifes misconduct only in 1945, upon his release from
internment; that thereafter the spouse lived separately and later executed a document (Annex
A ) liquidating their conjugal partnership and assigning certain properties to the erring wife as
her share. The complaint prayed for confirmation of the liquidation agreement; for custody of the
children issued of the marriage; that the defendant be declared disqualified to succeed the
plaintiff; and for their remedy as might be just and equitable.
Upon petition of the plaintiff, the court subsequently declared the wife in default, for failure to
answer in due time, despite service of summons; and directed the City Fiscal or his
representatives to
investigate, in accordance with Article 101 of the Civil Code, whether or not a collusion exists
between the parties and to report to this Court the result of his investigation within fifteen (15)
days from receipt of copy of this order. The City Fiscal or his representative is also directed to
intervene in the case in behalf of the State. (Rec. App. p. 9).
As ordered, Assistant City Fiscal Rafael Jose appeared at the trial, and cross-examined plaintiff
Brown. His questions (strenuously objected to by Brown's counsel) elicited the fact that after
liberation, Brown had lived maritally with another woman and had begotten children by her.
Thereafter, the court rendered judgment denying the legal separation asked, on the ground that,
while the wife's adultery was established, Brown had incurred in a misconduct of similar nature
that barred his right of action under Article 100 of the new Civil Code, providing:
ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has
been no condonation or of 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.
that there had been consent and connivance, and because Brown's action had prescribed under
Article 102 of the same Code:
ART. 102 An action for legal separation cannot be filed except within one year from and after the
date on which the plaintiff became cognizant of the cause and within five years from and after
date when such cause occurred.
since the evidence showed that the learned of his wife's infidelity in 1945 but only filed action in
1945.
Brown appeared to this Court, assigning the following errors:
The court erred in permitting the Assistant Fiscal Rafel Jose of Manila to act as counsel for the
defendant, who defaulted.
The court erred in declaring that there was condonation of or consent to the adultery.
The court erred in dismissing the plaintiff's complaint.
Appellant Brown argues that in cross-examining him with regard to his marital relation with Lilia
Deito, who was not his wife, the Assistant Fiscal acted as consel for the defaulting wife, "when
the power of the prosecuting officer is limited to finding out whether or not there is collusion, and
if there is no collusion, which is the fact in the case at bar, to intervene for the state which is not
the fact in the instant case, the truth of the matter being that he intervened for Juanita Yambao,
the defendant-appellee, who is private citizen and who is far from being the state.".
The argument is untenable. Collusion in matrimonial cases being "the act of married persons in
procuring a divorce by mutual consent, whether by preconcerted commission by one of a
matrimonial offense, or by failure, in pursuance of agreement to defend divorce proceedings"
(Cyclopedia Law Dictionary; Nelson, Divorce and Separation, Section 500), it was legitimate for
the Fiscal to bring to light any circumstances that could give rise to the inference that the wife's
default was calculated, or agreed upon, to enable appellant to obtain the decree of legal
separation that he sought without regard to the legal merits of his case. One such circumstance
is obviously the fact of Brown's cohabitation with a woman other than his wife, since it bars him
from claiming legal separation by express provision of Article 100 of the new Civil Code.
Wherefore, such evidence of such misconduct, were proper subject of inquiry as they may
justifiably be considered circumstantial evidence of collusion between the spouses.
The policy of Article 101 of the new Civil Code, calling for the intervention of the state attorneys
in case of uncontested proceedings for legal separation (and of annulment of marriages, under
Article 88), is to emphasize that marriage is more than a mere contract; that it is a social
institution in which the state is vitally interested, so that its continuation or interruption cannot be
made depend upon the parties themselves (Civil Code, Article 52; Adong vs, Cheong Gee, 43
Phil, 43; Ramirez vs. Gmur 42 Phil. 855; Goitia vs. Campos, 35 Phil. 252). It is consonant with
this policy that the injury by the Fiscal should be allowed to focus upon any relevant matter that
may indicate whether the proceedings for separation or annulment are fully justified or not.
The court below also found, and correctly held that the appellant's action was already barred,
because Brown did not petition for legal separation proceedings until ten years after he learned
of his wife's adultery, which was upon his release from internment in 1945. Under Article 102 of
the new Civil Code, action for legal separation can not be filed except within one (1) year from
and after the plaintiff became cognizant of the cause and within five years from and after the
date when such cause occurred. Appellant's brief does not even contest the correctness of such
findings and conclusion.
It is true that the wife has not interposed prescription as a defense. Nevertheless, the courts can
take cognizance thereof, because actions seeking a decree of legal separation, or annulment of
marriage, involve public interest and it is the policy of our law that no such decree be issued if
any legal obstacles thereto appear upon the record.
Hence, there being at least two well established statutory grounds for denying the remedy
sought (commission of similar offense by petitioner and prescription of the action), it becomes

unnecesary to delve further into the case and ascertain if Brown's inaction for ten years also
evidences condonation or connivance on his part. Even if it did not, his situation would not be
improved. It is thus needless to discuss the second assignment of error.
The third assignment of error being a mere consequence of the others must necessarily fail with
them.
The decision appealed from is affirmed, with costs against appellant. So ordered. Bengzon,
Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion, Endencia
and Felix, JJ., concur.
Willan v. Willan, 2 A11 E.R. 463 (1960)
Facts: H claims that his W physically and verbally assaults him and asks him to perform sexual
intercourse even when he didnt want to. Before he finally left, they had sexual intercourse.
Held: The last sexual intercourse w/ the W constitutes condonation. Willan was free to either
submit or resist his wifes pleadings. He may have been reluctant to submit himself to his wife
but this does not mean that the act was involuntary.
BENJAMIN BUGAYONG, plaintiff-appellant, vs. LEONILA GINEZ, defendant-appellee.
Florencio Dumapias for appellant. Numeriano Tanopo, Jr. for appellee.
FELIX, J.: This is a case for legal separation filed in the Court of First Instance of Pangasinan
wherein on motion of the defendant, the case was dismissed. The order of dismissal was
appealed to the Court of Appeals, but said Tribunal certified the case to the Court on the ground
that there is absolutely no question of fact involved, the motion being predicated on the
assumption as true of the very facts testified to by plaintiff-husband.
The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a serviceman in the
United States Navy, was married to defendant Leonila Ginez on August 27, 1949, at Asingan,
Pangasinan, while on furlough leave. Immediately after their marriage, the couple lived with their
sisters who later moved to Sampaloc, Manila. After some time, or about July, 1951, Leonila
Ginez left the dwelling of her sister-in-law and informed her husband by letter that she had gone
to reside with her mother in Asingan, Pangasinan, from which place she later moved to Dagupan
City to study in a local college there.
As early as July, 1951, Benjamin Bugayong began receiving letters from Valeriana Polangco
(plaintiff's sister-in-law) and some from anonymous writers(which were not produced at the
hearing) informing him of alleged acts of infidelity of his wife which he did not even care to
mention. On cross-examination, plaintiff admitted that his wife also informed him by letter, which
she claims to have destroyed, that a certain "Eliong" kissed her. All these communications
prompted him in October, 1951 to seek the advice of the Navy Chaplain as to the propriety of a
legal separation between him and his wife on account of the latter's alleged acts of infidelity, and
he was directed to consult instead the navy legal department.
In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife whom he met in
the house of one Mrs. Malalang, defendant's godmother. She came along with him and both
proceeded to the house of Pedro Bugayong, a cousin of the plaintiff-husband, where they
stayed and lived for 2 nights and 1 day as husband and wife. Then they repaired to the plaintiff's
house and again passed the night therein as husband and wife. On the second day, Benjamin
Bugayong tried to verify from his wife the truth of the information he received that she had
committed adultery but Leonila, instead of answering his query, merely packed up and left,
which he took as a confirmation of the acts of infidelity imputed on her. After that and despite
such belief, plaintiff exerted efforts to locate her and failing to find her, he went to Bacarra, Ilocos
Norte, "to soothe his wounded feelings".
On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of Pangasinan a
complaint for legal separation against his wife, Leonila Ginez, who timely filed an answer
vehemently denying the averments of the complaint and setting up affirmative defenses. After
the issues were joined and convinced that a reconciliation was not possible, the court set the
case for hearing on June 9, 1953. Plaintiff's counsel announced that he was to present 6
witnesses but after plaintiff-husband finished testifying in his favor, counsel for the defendant
orally moved for the dismissal of the complaint, but the Court ordered him to file a written motion
to that effect and gave plaintiff 10 days to answer the same.
The motion to dismiss was predicted on the following grounds: (1) Assuming arguendo the truth
of the allegations of the commission of "acts of rank infidelity amounting to adultery", the cause
of action, if any, is barred by the statute of limitations; (2) That under the same assumption, the
act charged have been condoned by the plaintiff-husband; and (3) That the complaint failed to
state a cause of action sufficient for this court to render a valid judgment.
The motion to dismiss was answered by plaintiff and the Court, considering only the second
ground of the motion to dismiss i. e., condonation, ordered the dismissal of the action. After the
motion for reconsideration filed by plaintiff was denied, the case was taken up for review to the
Court of Appeals, appellant's counsel maintaining that the lower court erred:
(a) In so prematurely dismissing the case;
(b) In finding that there were condonation on the part of plaintiff-appellant; and
(c) In entertaining condonation as a ground for dismissal inasmuch as same was not raised in
the answer or in a motion to dismiss.
As the questions raised in the brief were merely questions of law, the Court of Appeals certified
the case to Superiority.
The Civil Code provides:
ART. 97. A petition for legal separation may be filed:
(1) For adultery on the part of the wife and for concubinage for the part of the husband as
defined on the Penal Code; or
(2) An attempt by one spouse against the life of the other.
ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has
been no condonation of or consent to the adultery or concubinage. Where both spouses are
offenders, a legal separation cannot by either of them. Collusion between the parties to obtain
legal separation shall cause the dismissal of the petition.

ART. 102. An action for legal separation cannot be filed except within one year from and after
the date on which the plaintiff became cognizant of the cause and within five years from and
after the date when such cause occurred.
As the only reason of the lower Court for dismissing the action was the alleged condonation of
the charges of adultery that the plaintiff-husband had preferred in the complaint against his wife,
We will disregard the other 2 grounds of the motion to dismiss, as anyway they have not been
raised in appellant's assignment of errors.
Condonation is the forgiveness of a marital offense constituting a ground for legal separation or,
as stated in I Bouver's Law Dictionary, p. 585, condonation is the "conditional forgiveness or
remission, by a husband or wife of a matrimonial offense which the latter has committed". It is to
be noted, however, that in defendant's answer she vehemently and vigorously denies having
committed any act of infidelity against her husband, and even if We were to give full weight to
the testimony of the plaintiff, who was the only one that had the chance of testifying in Court and
link such evidence with the averments of the complaint, We would have to conclude that the
facts appearing on the record are far from sufficient to establish the charge of adultery, or, as the
complaint states, of "acts of rank infidelity amounting to adultery" preferred against the
defendant. Certainly, the letter that plaintiff claims to have received from his sister-in-law
Valeriana Polangco, which must have been too vague and indefinite as to defendant's infidelity
to deserve its production in evidence; nor the anonymous letters which plaintiff also failed to
present; nor the alleged letter that, according to plaintiff, his wife addressed to him admitting that
she had been kissed by one Eliong, whose identity was not established and
which admission defendant had no opportunity to deny because the motion to dismiss was filed
soon after plaintiff finished his testimony in Court, do not amount to anything that can be relied
upon.
But this is not a question at issue. In this appeal, We have to consider plaintiff's line of
conduct under the assumption that he really believed his wife guilty of adultery. What did he do
in such state of mind. In August, 1952, he went to Pangasinan and looked for his wife and after
finding her they lived together as husband and wife for 2 nights and 1 day, after which he says
that he tried to verify from her the truth of the news he had about her infidelity, but failed to attain
his purpose because his wife, instead of answering his query on the matter, preferred to desert
him, probably enraged for being subjected to such humiliation. And yet he tried to locate her,
though in vain. Now, do the husband's attitude of sleeping with his wife for 2 nights despite his
alleged belief that she was unfaithful to him, amount to a condonation of her previous and
supposed adulterous acts? In the order appealed from, the Court a quo had the following to say
on this point:
In the hearing of the case, the plaintiff further testified as follows:
Q. Now Mr. Bugayong, you have filed this action for legal separation from your wife. Please tell
this Hon. Court why you want to separate from your wife? A. I came to know that my wife is
committing adultery, I consulted the chaplain and he told me to consult the legal adviser. (p. 11,
t.s.n.)
Q. Did you finally locate her?--A. Four days later or on the fifth day since my arrival she went to
the house of our god-mother, and as a husband I went to her to come along with me in our
house but she refused. (p. 12, t.s.n.)lawphil.net
Q. What happened next? A. I persuaded her to come along with me. She consented but I did
not bring her home but brought her to the house of my cousin Pedro Bugayong. (p. 12, t.s.n.)
Q. How long did you remain in the house of your cousin Pedro Bugayong? A. One day and
one night. (p. 12. t.s.n.)
Q. That night when you stayed in the house of your cousin Pedro Bugayong as husband and
wife, did you slept together? A. Yes, sir. (p. 19, t.s.n.)
Q. On the next night, when you slept in your own house, did you sleep together also as husband
and wife? A. Yes, sir. (p. 19. t.s.n.)
Q. When was that? A. That was in August, 1952. (p. 19 t.s.n.)
Q. How many nights did you sleep together as husband and wife? A. Only two nights. (p. 19,
t.s.n.)
The New Civil Code of the Philippines, in its Art. 97, says:
A petition for legal separation may be filed:
(1) For adultery on the part of the wife and concubinage on the part of the husband as defined
on the Penal Code.
and in its Art. 100 it says:lawphil.net
The legal separation may be claimed only by the innocent spouse, provided there has been no
condonation of or consent to the adultery or concubinage. Where both spouses are offenders,
legal separation cannot be claimed by either of them. Collusion between the parties to obtain
legal separation shall cause the dismissal of the petition.
A detailed examination of the testimony of the plaintiff-husband, especially those portions quoted
above, clearly shows that there was a condonation on the part of the husband for the supposed
"acts of rank infidelity amounting to adultery" committed by defendant-wife. Admitting for the
sake of argument that the infidelities amounting to adultery were committed by the defendant, a
reconciliation was effected between her and the plaintiff. The act of the latter in persuading her
to come along with him, and the fact that she went with him and consented to be brought to the
house of his cousin Pedro Bugayong and together they slept there as husband and wife for one
day and one night, and the further fact that in the second night they again slept together in their
house likewise as husband and wife all these facts have no other meaning in the opinion of
this court than that a reconciliation between them was effected and that there was a
condonation of the wife by the husband. The reconciliation occurred almost ten months after he
came to know of the acts of infidelity amounting to adultery.
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that "condonation is
implied from sexual intercourse after knowledge of the other infidelity. such acts necessary
implied forgiveness. It is entirely consonant with reason and justice that if the wife freely
consents to sexual intercourse after she has full knowledge of the husband's guilt, her consent
should operate as a pardon of his wrong."
In Tiffany's Domestic and Family Relations, section 107 says:

Condonation. Is the forgiveness of a marital offense constituting a ground for divorce and bars
the right to a divorce. But it is on the condition, implied by the law when not express, that the
wrongdoer shall not again commit the offense; and also that he shall thereafter treat the other
spouse with conjugal kindness. A breach of the condition will revive the original offense as a
ground for divorce. Condonation may be express or implied.
It has been held in a long line of decisions of the various supreme courts of the different states
of the U. S. that 'a single voluntary act of sexual intercourse by the innocent spouse after
discovery of the offense is ordinarily sufficient to constitute condonation, especially as against
the husband'. (27 Corpus Juris Secundum, section 61 and cases cited therein).
In the lights of the facts testified to by the plaintiff-husband, of the legal provisions above quoted,
and of the various decisions above-cited, the inevitable conclusion is that the present action is
untenable.
Although no acts of infidelity might have been committed by the wife, We agree with the trial
judge that the conduct of the plaintiff-husband above narrated despite his belief that his wife was
unfaithful, deprives him, as alleged the offended spouse, of any action for legal separation
against the offending wife, because his said conduct comes within the restriction of Article 100 of
the Civil Code.
The only general rule in American jurisprudence is that any cohabitation with the guilty party,
after the commission of the offense, and with the knowledge or belief on the part of the injured
party of its commission, will amount to conclusive evidence of condonation; but this presumption
may be rebutted by evidence (60 L. J. Prob. 73).
If there had been cohabitation, to what extent must it be to constitute condonation?
Single voluntary act of marital intercourse between the parties ordinarily is sufficient to constitute
condonation, and where the parties live in the same house, it is presumed that they live on
terms of matrimonial cohabitation (27 C. J. S., section 6-d).
A divorce suit will not be granted for adultery where the parties continue to live together after it
was known (Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac. 974) or there is sexual
intercourse after knowledge of adultery (Rogers vs. Rogers, 67 N. J. Eq. 534) or sleeping
together for a single night (Toulson vs. Toulson, 50 Atl. 401, citing Phinizy vs. Phinizy, 114 S. E.
185, 154 Ga. 199; Collins vs. Collins, 193 So. 702), and many others. The resumption of marital
cohabitation as a basis of condonation will generally be inferred, nothing appearing to the
contrary, from the fact of the living together as husband and wife, especially as against the
husband (Marsh vs. Marsh, 14 N. J. Eq. 315).
There is no ruling on this matter in our jurisprudence but we have no reason to depart from the
doctrines laid down in the decisions of the various supreme courts of the United States above
quoted.
There is no merit in the contention of appellant that the lower court erred in entertaining
condonation as a ground for dismissal inasmuch as same was not raised in the answer or in a
motion to dismiss, because in the second ground of the motion to dismiss. It is true that it was
filed after the answer and after the hearing had been commenced, yet that motion serves to
supplement the averments of defendant's answer and to adjust the issues to the testimony of
plaintiff himself (section 4, Rule 17 of the Rules of Court).
Wherefore, and on the strength of the foregoing, the order appealed from is hereby affirmed,
with costs against appellant. It is so ordered. Paras, C.J., Bengzon, Padilla, Bautista Angelo,
Labrador, Concepcion, Reyes, J.B.L. and Endencia, JJ., concur.
SOCORRO MATUBIS, plaintiff-appellant, vs. ZOILO PRAXEDES, defendant-appellee.
Luis N. de Leon for appellant. Lucio La. Margallo for appellee.
PAREDES, J.: Alleging abandonment and concubinage, plaintiff Socorro Matubis, filed with the
Court of First Instance of Camarines Sur, on April 24, 1956, a complaint for legal Separation and
changed of surname against her husband defendant Zoilo Praxedes.
The allegations of the complaint were denied by defendant spouse, who interposed the defense
that it was plaintiff who left the conjugal home.
During the trial, wherein the plaintiff alone introduced oral as well as documentary evidence, the
following facts were established:.
Plaintiff and defendant were legally married on January 10, 1943 at Iriga, Camarines Sur. For
failure to agree on how they should live as husband and wife, the couple, on May 30, 1944,
agreed to live separately from each other, which status remained unchanged until the present.
On April 3, 1948, plaintiff and defendant entered into an agreement (Exhibit B), the significant
portions of which are hereunder reproduced..
. . . (a) That both of us relinquish our right over the other as legal husband and wife.
(b) That both without any interference by any of us, nor either of us can prosecute the other for
adultery or concubinage or any other crime or suit arising from our separation.
(c) That I, the, wife, is no longer entitled for any support from my husband or any benefits he
may received thereafter, nor I the husband is not entitled for anything from my wife.
(d) That neither of us can claim anything from the other from the time we verbally separated,
that is from May 30, 1944 to the present when we made our verbal separation into writing.
In January, 1955, defendant began cohabiting with one Asuncion Rebulado and on September
1, 1955, said Asuncion gave birth to a child who was recorded as the child of said defendant
(Exh. C.).It was shown also that defendant and Asuncion deported themselves as husband and
wife and were generally reputed as such in the community.
After the trial, without the defendant adducing any evidence, the court a quo rendered judgment
holding that the acts of defendant constituted concubinage, a ground for legal separation. It
however, dismissed the complaint by stating:
While this legal ground exist, the suit must be dismissed for two reasons, viz:
Under Art. 102 of the new Civil Code, an action for legal separation cannot be filed except within
one year from and after the date on which the plaintiff became cognizant of the cause and within
five years from and after the date when the cause occurred. The plaintiff became aware of the
illegal cohabitation of her husband with Asuncion Rebulado in January, 1955. The complaint was
filed on April 24, 1956. The present action was, therefore, filed out of time and for that reason
action is barred.

Article 100 of the new Civil Code provides that 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. As shown in Exhibit B, the plaintiff has consented to the commission of
concubinage by her husband. Her consent is clear from the following stipulations:
(b) That both of us is free to get any mate and live with as husband and wife without any
interference by any of us, nor either of us can prosecute the other for adultery or concubinage or
any other crime or suit arising from our separation. (Exh. B).
This stipulation is an unbridled license she gave her husband to commit concubinage. Having
consented to the concubinage, the plaintiff cannot claim legal separation.
The above decision is now before us for review, plaintiff- appellant claiming that it was error for
the lower court to have considered that the period to bring the action has already elapsed and
that there was consent on the part of the plaintiff to the concubinage. The proposition, therefore,
calls for the interpretation of the provisions of the law upon which the lower court based its
judgment of dismissal.
Article 102 of the new Civil Code provides:
An action for legal separation cannot be filed except within one year from and after the date on
which the plaintiff became cognizant of the cause and within five years from after the date when
cause occurred.
The complaint was filed outside the periods provided for by the above Article. By the very
admission of plaintiff, she came to know the ground (concubinage) for the legal separation in
January, 1955. She instituted the complaint only on April 24, 1956. It is to be noted that
appellant did not even press this matter in her brief.
The very wording of the agreement Exhibit B. gives no room for interpretation other than that
given by the trial judge. Counsel in his brief submits that the agreement is divided in two parts.
The first part having to do with the act of living separately which he claims to be legal, and the
second part that which becomes a license to commit the ground for legal separation which is
admittedly illegal. We do not share appellant's view. Condonation and consent on the part of
plaintiff are necessarily the import of paragraph 6(b) of the agreement. The condonation and
consent here are not only implied but expressed. The law (Art. 100 Civil Code), specifically
provides that legal separation may be claimed only by the innocent spouse, provided there has
been no condonation of or consent to the adultery or concubinage. Having condoned and/or
consented in writing, the plaintiff is now undeserving of the court's sympathy (People vs.
Scheneckenburger, 73 Phil., 413). Plaintiff's counsel even agrees that the complaint should be
dismissed. He claims however, that the grounds for the dismissal should not be those stated in
the decision of the lower court, "but on the ground that plaintiff and defendant have already been
legally separated from each other, but without the marital bond having been affected, long
before the effectivity of the new Civil Code" (appellants brief, pp. 7-8). Again, we cannot
subscribed to counsel's contention, because it is contrary to the evidence.
Conformably with the foregoing, we find that the decision appealed from is in accordance with
the evidence and the law on the matter. The same is hereby affirmed, with costs. Paras, C.J.,
Bengzon, Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, and Gutierrez David,
JJ., concur.
VII. C. Defenses Article 56 CC
Cases
ELENA CONTRERAS, plaintiff-appellant, vs. CESAR J. MACARAIG, defendant-appellee.
Jose T. Nery for plaintiff-appellee. The City fiscal for defendant-appellant. Cesar J. Macaraig in
his own behalf.
DIZON, J.: Appeal taken by Elena Contreras from a decision of the Juvenile and Domestic
Relations Court of Manila in Civil Case No. 00138 dismissing her complaint upon the ground
that the same was filed more than one year from and after the date on which she had become
cognizant of the cause for legal separation.
The following, facts found by the trial court are not in dispute:
Plaintiff and defendant were married on March 16, 1952 in the Catholic Church of Quiapo,
Manila. Out of their Marriage, three children were born: Eusebio C. Macaraig, on January 11,
1953; Victoria C. Macaraig, on March 26, 1956; and Alexander C. Macaraig, on August 4, 1958.
All the children are in the care of plaintiff wife.
Sometime in 1958, the couple acquired rights, as lessee and purchaser under a conditional sale
agreement, to own a house and lot, known as Lot 4, Block 8 of the Philamlife Homes in Quezon
City which they transferred in favor of their three children on October 29, 1958 (Exh. F).
Installment payments are being made by plaintiff's father. The spouses own no other conjugal
property.
Immediately before the election of 1961, defendant was employed as manager of the printing
establishment owned by plaintiff's father known as the MICO Offset. In that capacity, defendant
met and came to know Lily Ann Alcala, who place orders with MICO Offset for propaganda
materials for Mr. Sergio Osmea, who was then a Vice-Presidential candidate. After the
elections of 1961, defendant resigned from MICO Offset to be a special agent at Malacaang.
He began to be away so often and to come home very late. Upon plaintiff's inquiry, defendant
explained that he was out on a series of confidential missions.
In September, 1962, Avelino Lubos, driver of the family car, told plaintiff that defendant was
living in Singalong with Lily Ann Alcala. When defendant, the following October, returned to the
conjugal home, plaintiff refrained from verifying Lubos' report from defendant in her desire not to
anger nor drive defendant away. Although plaintiff, in April 1963, also received rumors that
defendant was seen with a woman who was on the family way on Dasmarias St., she was so
happy that defendant again return to the family home in May, 1963 that she once more desisted
from discussing the matter with him because she did not wish to precipitate a quarrel and drive
him away. All this while, defendant, if and whenever he returned to the family fold, would only
stay for two or three days but would be gone for a period of about a month.
After plaintiff received reports that Lily Ann Alcala had given birth to a baby, she sent Mrs.
Felicisima Antioquia, her father's employee, to verify the reports. The latter was driven by Lubos
to the house in Singalong and between 5:00 and 6:00 o'clock that afternoon, she saw defendant
was carrying a baby in his arms. Mrs. Antioquia then went to the parish priest of Singalong

where she inquired about the child of Cesar Macaraig and Lily Ann Alcala and she was given a
copy of the baptismal certificate of Maria Vivien Mageline Macaraig (Exh. G) which she gave to
plaintiff sometime in October, 1963.
Plaintiff then entreated her father-in-law, Lucilo Macaraig, to intercede with defendant and to
convince him to return to his family. Mr. Macaraig, after talking to his son and seeking him with
the latter's child told plaintiff that he could not do anything.
In November, 1963, plaintiff requested the cooperation of defendant's older sister, Mrs.
Enriqueta Majul, and the latter obliged and arranged a meeting at her home in Buendia between
plaintiff and Lily Ann Alcala. Lily Ann said she was willing to give up defendant as she had no
desire to be accused criminally but it was defendant who refused to break relationship with her.
In the early part of December, 1963, plaintiff, accompanied by her two children, Victoria and
Alexander, and by Mrs. Leticia Lagronio went to talk to defendant at his place of work on Espaa
Extension in front of Quezon Institute. They repaired to Victoria Peak, a nearby restaurant,
where plaintiff pleaded with defendant to give up Lily Ann Alcala and to return to the conjugal
home, assuring him that she was willing to forgive him. Defendant informed plaintiff that he
could no longer leave Lily Ann and refused to return to his legitimate family.
On December 14, 1963, plaintiff instituted the present action for legal separation. When
defendant did not interpose any answer after he was served summons, the case was referred to
the Office of the City Fiscal of Manila pursuant to the provisions of Article 101 of the Civil Code.
After a report was received from Asst. Fiscal Primitivo M. Pearanda that he believed that there
was no collusion present, plaintiff was allowed to present her evidence. Defendant has never
appeared in this case.
The reasons relied upon by the trial court in dismissing the complaint are set forth in the
appealed decision as follows:
Under the facts established by plaintiff's evidence, although the infidelity of the husband is
apparent, yet the case will have to be dismissed. Article 102 provides that, an action for legal
separation cannot be instituted except within one year after plaintiff "became cognizant of the
cause." In the absence of a clear-cut decision of the Supreme Court as to the exact import of the
term "cognizant," the practical application of said Article can be attended with difficulty. For one
thing; that rules might be different in case of adultery, which is an act, and for concubinage,
which may be a situation or a relationship.
In respect of concubinage, the word 'cognizant' may not connote the date when proof thereof
sufficient to establish the cause before a court of law is possessed. Otherwise, the one year
period would be meaningless for practical purposes because all a wife would have to do would
be to claim that the necessary proof was secured only within one year before the filing of the
complaint. On the other hand, it should be hard to concede that what the law envisages (and, in
a way, encourages) is the filing of a complaint within one year after the innocent spouses has
received information of the other's infidelity, howsoever baseless the report might be.
The Court believes that the correct rule lies between the two extremes. At the time a wife
acquired information, which can be reasonably relied upon as true, that her husband is living in
concubinage with another woman, the one-year period should be deemed to have started even
if the wife shall not then be in possession of proof sufficient to establish the concubinage before
a court of law. The one-year period may be viewed, inter alia, as an alloted time within which
proof should be secured. It is in the light of this rule that the Court will determine whether or not
plaintiff's action for legal separation has prescribed.
After her husband resigned from MICO Offset to be a special agent in Malacaan, subsequent
to the elections of 1961, he would seldom come home. He allayed plaintiff's suspicions with the
explanation that he had been away on 'confidential missions.' However, in September, 1962,
Avelino Lubos, plaintiff's driver, reported to plaintiff that defendant was living in Singalong with
Lily Ann Alcala. As a matter of fact, it was also Lubos who brought Mrs. F. Antioquia (when
plaintiff had asked to verify the reports) to the house in Singalong where she saw defendant, Lily
Ann and the baby.
The requirement of the law that a complaint for legal separation be filed within one year after the
date plaintiff become cognizant of the cause is not of prescriptive nature, but is of the essence of
the cause of action. It is consonant with the philosophy that marriage is an inviolable social
institution so that the law provides strict requirements before it will allow a disruption of its
status.
In the instant action, the Court has to find that plaintiff became cognizant of defendant's infidelity
in September, 1962. Plaintiff made successive attempts to induce the husband to amend his
erring ways but failed. Her desire to bring defendant back to the connubial fold and to preserve
family solidarity deterred her from taking timely legal action.
The only question to be resolved is whether the period of one year provided for in Article 102 of
the Civil Code should be counted, as far as the instant case is concerned from September 1962
or from December 1963. Computing the period of one year from the former date, it is clear that
plaintiff's complaint filed on December 14, 1963 came a little too late, while the reverse would be
true if said period is deemed to have commenced only in the month of December 1963.
The period of "five years from after the date when such cause occurred" is not here involved.
Upon the undisputed facts it seems clear that, in the month of September 1962, whatever
knowledge appellant had acquired regarding the infidelity of her husband, that is, of the fact that
he was then living in Singalong with Lily Ann Alcala, was only through the information given to
her by Avelino Lubos, driver of the family car. Much as such hearsay information had pained and
anguished her, she apparently thought it best and no reasonable person may justifiably
blame her for it not to go deeper into the matter herself because in all probability even up to
that time, notwithstanding her husband's obvious neglect of his entire family, appellant still
cherished the hope however forlorn of his coming back home to them. Indeed, when her
husband returned to the conjugal home the following October, she purposely refrained from
bringing up the matter of his marital infidelity "in her desire not to anger nor drive defendant
away" quoting the very words of the trial court. True, appellant likewise heard in April 1963
rumors that her husband was seen with a woman on the family way on Dasmarias Street, but
failed again to either bring up the matter with her husband or make attempts to verify the truth of
said rumors, but this was due, as the lower court itself believed, because "she was so happy
that defendant again returned to the family home in May 1963 that she once more desisted from

discussing the matter with him because she did not wish to precipitate a quarrel and drive him
away." As a matter of fact, notwithstanding all these painful informations which would not have
been legally sufficient to make a case for legal separation appellant still made brave if
desperate attempts to persuade her husband to come back home. In the words of the lower
court, she "entreated her father-in-law, Lucilo Macaraig, to intercede with defendant and to
convince him to return to his family" and also "requested the cooperation of defendant's older
sister, Mrs. Enriqueta Majul" for the same purpose, but all that was of no avail. Her husband
remained obdurate.
After a careful review of the record, We are persuaded that, in the eyes of the law, the only time
when appellant really became cognizant of the infidelity of her husband was in the early part of
December 1963 when, quoting from the appealed decision, the following happened
In the early part of December, 1963, plaintiff, accompanied by her two children, Victoria and
Alexander, and by Mrs. Leticia Lagronio went to talk to defendant at his place of work on Espaa
Extension in front of Quezon Institute. They repaired to Victoria Peak, a nearby restaurant,
where plaintiff pleaded with defendant to give up Lily Ann Alcala and to return to the conjugal
home, assuring him that she was willing to forgive him. Defendant informed plaintiff that he
could no longer leave Lily Ann and refused to return to his legitimate family.
From all the foregoing We conclude that it was only on the occasion mentioned in the preceding
paragraph when her husband admitted to her that he was living with and would no longer leave
Lily Ann to return to his legitimate family that appellant must be deemed to be under obligation to
decide whether to sue or not to sue for legal separation, and it was only then that the legal
period of one year must be deemed to have commenced.
WHEREFORE, the decision appealed from is set aside and another is hereby rendered holding
that appellant is entitled to legal separation as prayed for in her complaint; and the case is
hereby remanded to the lower court for appropriate proceedings in accordance with law.
Reyes, J.B.L., Makalintal, Zaldivar, Fernando, Teehankee, Barredo and Villamor, JJ., concur.
Concepcion, C.J., concurs in the result. Castro, J., is on leave.
LUCY SOMOSA-RAMOS, petitioner, vs. THE HONORABLE CIPRIANO VAMENTA, JR.,
Presiding Judge of the Court of First Instance of Negros Oriental and CLEMEN G.
RAMOS, respondents. T. R. Reyes & Associates for petitioner. Soleto J. Erames for
respondents.
FERNANDO, J.:p The question raised in this petition for certiorari is whether or not Article 103
of the Civil Code prohibiting the hearing of an action for legal separation before the lapse of six
months from the filing of the petition, would likewise preclude the court from acting on a motion
for preliminary mandatory injunction applied for as an ancillary remedy to such a suit.
Respondent Cipriano Vamenta, Jr., of the Court of First Instance of Negros Oriental, answered
the question in the affirmative, in view of the absolute tenor of such Civil Code provision, which
reads thus: "An action for legal separation shall in no case be tried before six months shall have
elapsed since the filing of the petition." He therefore ordered the suspension, upon the plea of
the other respondent the husband Clemente G. Ramos, of the hearing on a motion for a writ of
preliminary mandatory injunction filed by petitioner at the same time the suit for legal separation
was instituted. Petitioner, Lucy Somosa-Ramos, the wife who brought the action for legal
separation would dispute such a ruling. Hence, this certiorari proceeding. As will be shown later
there is justification for such a move on the part of petitioner. The respondent Judge ought to
have acted differently. The plea for a writ of certiorari must be granted.
The pleadings show that on June 18, 1971, petitioner filed Civil Case No. 5274 in the sala of
respondent Judge against respondent Clemente Ramos for legal separation, on concubinage on
the respondent's part and an attempt by him against her life being alleged. She likewise sought
the issuance of a writ of preliminary mandatory injunction for the return to her of what she
claimed to be her paraphernal and exclusive property, then under the administration and
management of respondent Clemente Ramos. There was an opposition to the hearing of such a
motion, dated July 3, 1971, based on Article 103 of the Civil Code. It was further manifested by
him in a pleading dated July 16, 1971, that if the motion asking for preliminary mandatory
injunction were heard, the prospect of the reconciliation of the spouses would become even
more dim. Respondent Judge ordered the parties to submit their respective memoranda on the
matter. Then on September 3, 1971, petitioner received an order dated August 4, 1971 of
respondent Judge granting the motion of respondent Ramos to suspend the hearing of the
petition for a writ of mandatory preliminary injunction. That is the order complained of in this
petition for certiorari. Respondents were required to answer according to our resolution of
October 5, 1971. The answer was filed December 2 of that year. Then on January 12, 1972
came a manifestation from parties in the case submitting the matter without further arguments.
After a careful consideration of the legal question presented, it is the holding of this Court that
Article 103 the Civil Code is not an absolute bar to the hearing motion for preliminary injunction
prior to the expiration of the six-month period.
1. It is understandable why there should be a period during which the court is precluded from
acting. Ordinarily of course, no such delay is permissible. Justice to parties would not thereby be
served. The sooner the dispute is resolved, the better for all concerned. A suit for legal
separation, however, is something else again. It involves a relationship on which the law for the
best reasons would attach the quality of permanence. That there are times when domestic
felicity is much less than it ought to be is not of course to be denied. Grievances, whether
fancied or real, may be entertained by one or both of the spouses. There may be constant
bickering. The loss affection on the part of one or both may be discernible. Nonetheless, it will
not serve public interest, much less the welfare of the husband or the wife, to allow them to go
their respective ways. Where there are offspring, the reason for maintaining the conjugal union
is even more imperative. It is a mark of realism of the law that for certain cases, adultery on the
part of the wife and concubinage on the part of the husband, or an attempt of one spouse
against the life of the other, 1 it recognizes, albeit reluctantly, that the couple is better off apart. A
suit for legal separation lies. Even then, the hope that the parties may settle their differences is
not all together abandoned. The healing balm of time may aid in the process. Hopefully, the
guilty parties may mend his or her ways, and the offended party may in turn exhibit

magnanimity. Hence, the interposition of a six-month period before an action for legal separation
is to be tried.
The court where the action is pending according to Article 103 is to remain passive. It must let
the parties alone in the meanwhile. It is precluded from hearing the suit. There is then some
plausibility for the view of the lower court that an ancillary motion such as one for preliminary
mandatory injunction is not to be acted on. If it were otherwise, there would be a failure to abide
by the literal language of such codal provision. That the law, however, remains cognizant of the
need in certain cases for judicial power to assert itself is discernible from what is set forth in the
following article. It reads thus: "After the filing of the petition for legal separation, the spouse
shall be entitled to live separately from each other and manage their respective property. The
husband shall continue to manage the conjugal partnership property but if the court deems it
proper, it may appoint another to manage said property, in which case the administrator shall
have the same rights and duties as a guardian and shall not be allowed to dispose of the income
or of the capital except in accordance with the orders of the court." 2 There would appear to be
then a recognition that the question of management of their respective property need not be left
unresolved even during such six-month period. An administrator may even be appointed for the
management of the property of the conjugal partnership. The absolute limitation from which the
court suffers under the preceding article is thereby eased. The parties may in the meanwhile be
heard. There is justification then for the petitioner's insistence that her motion for preliminary
mandatory injunction should not be ignored by the lower court. There is all the more reason for
this response from respondent Judge, considering that the husband whom she accused of
concubinage and an attempt against her life would in the meanwhile continue in the
management of what she claimed to be her paraphernal property, an assertion that was not
specifically denied by him. What was held by this Court in Araneta v. Concepcion, 3 thus
possesses relevance: "It is conceded that the period of six months fixed therein Article 103 (Civil
Code) is evidently intended as a cooling off period to make possible a reconciliation between the
spouses. The recital of their grievances against each other in court may only fan their already
inflamed passions against one another, and the lawmaker has imposed the period to give them
opportunity for dispassionate reflection. But this practical expedient, necessary to carry out
legislative policy, does not have the effect of overriding other provisions such as the
determination of the custody of the children and alimony and support pendente lite according to
the circumstance ... The law expressly enjoins that these should be determined by the court
according to the circumstances. If these are ignored or the courts close their eyes to actual
facts, rank injustice may be caused." 4 At any rate, from the time of the issuance of the order
complained of on August 4, 1971, more than six months certainly had elapsed. Thus there can
be no more impediment for the lower court acting on the motion of petitioner for the issuance of
a writ of preliminary mandatory injunction.
WHEREFORE, the plea of petitioner for a writ of certiorari is granted, and the order of
respondent Court of August 4, 1971, suspending the hearing on the petition for a writ of
preliminary mandatory injunction is set aside. Respondent Judge is directed to proceed without
delay to hear the motion for preliminary mandatory injunction. Costs against respondent
Clemente G. Ramos. Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo,
Makasiar, Antonio and Esguerra, JJ., concur.
VII. D. Effects of Filing of Petition Arts. 61-62 FC
Cases
DIEGO DE LA VIA, petitioner, vs. ANTONIO VILLAREAL, as Auxiliary Judge of First
Instance, and NARCISA GEOPANO, respondents.Del Rosario and Del Rosario and W. F.
Mueller for petitioner. J. Lopez Vito for respondents.
JOHNSON, J.: This is an original petition presented in the Supreme Court. Its purpose is to
obtain an order declaring: (a) That the respondent, the Honorable Antonio Villareal, as Auxiliary
Judge sitting in the Court of First Instance of the province of Iloilo, has no jurisdiction to take
cognizance of a certain action for divorce instituted in said court by the respondent Narcisa
Geopano against her husband, Diego de la Via, the petitioner herein; (b) that the said
respondent judge has exceeded his power and authority in issuing, in said action, a preliminary
injunction against the said petitioner prohibiting him from alienating or encumbering any part of
the conjugal property during the pendency of the action; and (c) that all the proceedings
theretofore had in said court were null and void.
It appears from the record that on September 17, 1917, Narcisa Geopano filed a complaint in
the Court of First Instance of the Province of Iloilo against Diego de la Via, alleging: (1) That
she was a resident of the municipality of Iloilo, Province of Iloilo, and that the defendant was a
resident of the municipality of Vallehermoso, Province of Oriental Negros; (2) that she was the
legitimate wife of the defendant, having been married to him in the municipality of Guijulgan,
Province of Negros Oriental, in the year 1888; (3) that since their said marriage plaintiff and
defendant had lived as husband and wife and had nine children, three of whom were living and
were already of age; (4) that during their marriage plaintiff and defendant had acquired property,
real and personal, the value of which was about P300,000 and all of which was under the
administration of the defendant; (5) that since the year 1913 and up to the date of the complaint,
the defendant had been committing acts of adultery with one Ana Calog, sustaining illicit
relations with her and having her as his concubine, with public scandal and in disgrace of the
plaintiff; (6) that because of said illicit relations, the defendant ejected the plaintiff from the
conjugal home, for which reason she was obliged to live in the city of Iloilo, where she had since
established her habitual residence; and (7) that the plaintiff, scorned by her husband, the
defendant, had no means of support and was living only at the expense of one of her daughters.
Upon said allegations she prayed for (a) a decree of divorce, (b) the partition of the conjugal
property, and (c) alimony pendente lite in the sum of P400 per month.
Subsequent to the filing of the said complaint, Narcisa Geopano, the plaintiff therein, presented
a motion, which was later amended, alleging, among other things, that since the filing of her
complaint she had personal knowledge that the defendant was trying to alienate or encumber
the property which belonged to the conjugal partnership between the plaintiff and the defendant,
to the prejudice of the plaintiff, and prayed that a preliminary injunction be issued against the
defendant restraining and prohibiting him in the premises.

The defendant Diego de la Via, petitioner herein, opposed the said motion for a preliminary
injunction, and, subsequently, demurred to the complaint upon the ground that the court had no
jurisdiction to take cognizance of the cause, "nor over the person of the defendant."
After hearing the respective parties the respondent judge, in to separate orders, dated
November 1 and November 2, 1917, respectively, overruled the defendant's demurrer, and
granted the preliminary injunction prayed for by the plaintiff.
Thereafter and on April 27, 1918, the defendant, Diego de la Via filed the present petition
for certiorari in this court, upon the ground that the respondent judge had no jurisdiction to take
cognizance of the action in question, and had exceeded his power and authority in issuing said
preliminary injunction.
The questions arising out of the foregoing facts are as follows:
1. May a married woman ever acquire a residence or domicile separate from that of her
husband during the existence of the marriage?
2. In an action for divorce, brought by the wife against her husband, in which the partition of the
conjugal property is also prayed for, may the wife obtain a preliminary injunction against the
husband restraining and prohibiting him from alienating or encumbering any part of the conjugal
property during the pendency of the action?
I. The petitioner contends that the Court of First Instance of Iloilo had no jurisdiction to take
cognizance of the said action for divorce because the defendant therein was a resident of the
Province of Negros Oriental and the plaintiff, as the wife of the defendant, must also be
considered a resident of the same province inasmuch as, under the law, the domicile of the
husband is also the domicile of the wife; that the plaintiff could not acquire a residence in Iloilo
before the arriage between her and the defendant was legally dissolved.
This contention of the petitioner is not tenable. It is true, as a general of law, that the domicile of
the wife follows that of her husband. This rule is founded upon the theoretic identity of person
and of interest between the husband and the wife, and the presumption that, from the nature of
the relation, the home of the one is that of the other. It is intended to promote, strenghten, and
secure their interests in this relation, as it ordinarily exists, where union and harmony prevail.
But the authorities are unanimous in holding that this is not an absolute rule. "Under modern
laws it is clear that many exceptions to the rule that the domicile from of the wife is determined
by that of her husband must obtain. Accordingly, the wife may acquire another and seperate
domicile from that of her husband where the theorical unity of husband and wife is is dissolved,
as it is by the institution of divorce proceedings; or where the husband has given cause for
divorce; or where there is a separation of the parties by agreement, or a permanent separation
due to desertion of the wife by the husband or attributable to cruel treatment on the part of the
husband; or where there has been a forfeiture by the wife of the benefit of the husband's
domicile." (9 R. C. L., 545.)
The case of Narcisa Geopano comes under one of the many exceptions above-mentioned, to
wit: "Where the husband has given cause for divorce, the wife may acquire another and
seperate domicile from that of her husband." In support of this proposition there is a formidable
array of authorities. We shall content ourselves with illustrative quotations from a few of them, as
follows:
Although the law fixes the domicile of the wife as being that of her husband, universal
jurisprudence recognizes an exception to the rule in the case where the husband's conduct has
been such as to furnish lawful ground for a divorce, which justifies her in leaving him, and,
therefore, necessarily authorities her to live elsewhere and to acquire a separate domicile.
Cheever vs. Wilson, 9 Wall. (U. S.), 108; Barber vs. Barber, 21 How. (U. S.), 582; 2 Bishop, Mar.
and Div., 475; Schouler, Hus. and Wife, sec. 574; 5 Am. and Eng. Encyc. of Law, p. 756."
(Smith vs. Smith, 43 La. Ann., 1140, 1146.)
The matrimonial domicile of the wife is usually that of the husband, but if she is justified in
leaving him because his conduct has been such as to entitle her to a divorce, and she
thereupon does leave him and go into another state for the purpose of there permanently
residing, she acquires a domicile in the latter state. (Atherton vs. Atherton, 155 N. Y., 129; 63
Am. St. Rep., 650.)
The law will recognize a wife as having a separate existence, and separate interests, and
separate rights, in those cases where the express object of all proceedings is to show that the
relation itself ougth to be dissolved, or so modified as to establish separate interests, and
especially a separate domicile and home, bed and board being put, apart for the whole, as
expressive of the idea of home. Otherwise the parties, in this respect, would stand upon very
unequal ground, it being in the power of the husband to change his domicile at will, but not in
that of the wife. (Harteau vs. Harteau, 14 Pick. [Mass.], 181; 25 Am. Dec., 372, 375-376.)
Under the pauper laws, and upon general principles, the wife is regarded as having the domicile
of her husband; hut this results from his marital rights, and the duties of the wife. If the husband
has forfeited those rights be misbehavior, and has left and deserted the wife, they may have
different domiciles, in the view of the law regulating divorces. (Harding vs. Alden, 9 Greenl.
[Me.], 140; 23 Am. Dec., 549, 552.)
Though as a general principle of law the domicile of the husband is regarded as the domicile of
the wife, according to the prevailing view a wife may acquire a residence or domicile separate
from her husband so as to confer jurisdiction upon the courts of the state, in which her domicile
or residence is established, to decree a divorce in her favor. (9 R. C. L. 400-401, citing various
cases.)
The law making the domicile of the husband that of the wife is applicable only to their relations
with third parties, and has no application in cases of actual separation and controversy between
themselves as to the temporary or permanent severance of the marriage ties by judicial
proceedings. Vence vs. Vence, 15 How. Pr., 497; Schonwald vs. Schonwald, 55 N. C., 367;
Cheever vs. Wilson, 76 U. S. (9 Wall.), 109; 19 L. ed., 605. (Notes, p. 498, 16 L. R. A.)
In the case of Schonwald vs. Schonwald (55 N. C., 343), the plaintiff tried to do what the
petitioner in this case insists the respondent Narcisa Geopano should have done. In that case
the wife filed a bill of divorce in a court in North Carolina, where her husband resided. She
herself had not resided in that state for three years previous to the filing of the suit, as required
by the statute; but she claimed that the domicile of her husband was also her domicile and,
inasmuch as her husband, the defendant, had been a resident of North Carolina for more than

three years, she had also been a resident of that state during that time. The court dismissed the
bill, holding that the legal maxim that "her domicile is that of her husband" would not avail in the
stead of an actual residence. The court said:
It is true that for many purpose the domicile of the husband is the domicile of the wife, but it is
not so for every purpose. The maxim that the domicile of the wife follows that of the husband
cannot be applied to oust the court of its jurisdiction; neither, from party of reasons can it give
jurisdiction. (P. 344.)
Turning to the Spanish authorities, we find that they agree with the American authorities in
holding that the maxim or rule that the domicile of the wife follows that of the husband, is not an
absolute one. Scaevola, commenting on article 40 of the Civil Code (which is the only legal
provision or authority relied upon by the petitioner in this case), says:
Although article 64 of the Law of Civil Procedure provides that the domicile of a married woman,
not legally separated from her husband, is that of the latter, yet, when the tacit consent of the
husband and other circumstances justify it, for the purpose of determining jurisdiction, the
habitual residence of the woman should be considered as her domicile where her right may be
exercised in accordance with article 63. (Scaevola, Civil Code, p. 354.)
Manresa, commenting upon the same article (art. 40) says:
The domicile of married women not legally separated from their husband shall be that of the
latter. This principle, maintained by the Supreme Court in numerous decisions, was modified in a
particular case by the decision of June 17, 1887, and in conformity with this last decision, three
others were afterwards rendered on October 13, 23, and 28, 1899, in all of which it is declared
that when married women as well as children subject to parental authority live, with the
acquiescence of their husbands or fathers, in a place distinct from where the latter live, they
have their own independent domicile, which should be considered in determining jurisdiction in
cases of provisional support guardianship of persons, etc. (1 Manresa, 233.)
If the wife can acquire a separate residence when her husband consents or acquiesces, we see
no reason why the law will not allow her to do so when, as alleged in the present case, the
husband unlawfully ejects her from the conjugal home in order that he may freely indulge in his
illicit relations with another woman. Under no other circumstance could a wife be more justified
in establishing a separate residence from that of her husband. For her to continue living with
him, even if he had permitted it, would have been a condonation of his flagrant breach of fidelity
and marital duty. Furthermore, in this case no longer was there an "identity of persons and of
interest between the husband and the wife." Therefore the law allowed her to acquire a separate
residence. For, "it would do violence to the plainest principle of common sense and common
justice of to call this residence of the guilty husband, where the wife is forbidden to come, . . .
the domicile of the wife." (Champon vs. Champon, 40 La. Ann., 28.)
It is clear, therefore, that a married woman may acquire a residence or domicile separate from
that of her husband, during the existence of the marriage, where the husband has given cause
for divorce.
II. We come now to the second question whether or not the respondent judge exceeded his
power in issuing the preliminary injunction complained of by the petitioner.
Section 164 of Act No. 190 provides:
A preliminary injunction may be granted when it is established, in the manner hereinafter
provided, to the satisfaction of the judge granting it:
1. That the plaintiff is entitled to the relief demanded and such relief, or any part thereof, consists
in restraining the commission or continuance of the acts complained of either for a limited period
or perpetually;
2. That the commission or continuance of some act complained of during the litigation would
probably work injustice to the plaintiff;
3. That the defendant is doing, or threatens, on is about to do, or is procuring or suffering to be
done, some act probably in violation of the plaintiff's rights, respecting the subject of the action,
and tending to render the judgment ineffectual.
The petitioner quotes the foregoing section and argues that the respondent Narcisa Geopano
was not entitled to have a preliminary injunction issued against her husband because contrary to
the requirement of the first paragraph of said section, she was not entitled to the relief
demanded, which consisted in restraining the power and authority which the law confers upon
the husband; that under articles 1412 and 1413 of the Civil Code, the husband is the manager of
the conjugal partnership and, as such, is empowered to alienate and encumber and conjugal
property without the consent of the wife; that neither could the wife obtain a preliminary
injunction under paragraph 3 of said section, upon the ground that the defendant was
committing some acts in violation of the plaintiff's rights, because the plaintiff, as the wife of the
defendant, had nor right to intervene in the administration of the conjugal property, and therefore
no right of hers was violated.
We cannot subscribe to that argument of counsel. The law making the husband the sole
administrator of the property of the conjugal partnership is founded upon necessity and
convenience as well as upon the presumption that, from the very nature of the relating between
husband and wife, the former will promote and not injure the interests of the latter. So long as
this harmonious relation, as contemplated by law, continues, the wife cannot and should not
interfere with the husband in his judicious administration of the conjugal property. But when that
relation ceases and, in a proper action, the wife seeks to dissolve the marriage and to partition
the conjugal property, it is just and proper, in order to protect the interests of the wife, that the
husband's power of administration be curtailed, during the pendency of the action, insofar as
alienating or encumbering the conjugal property is concerned.
In her motion for a preliminary injunction, Narcisa Geopano alleged that the defendant was
about to alienate or encumber the property belonging to the conjugal partnerships, with the
object of injuring her interests; and this allegation does not appear to have been controverted by
the defendant either in this court or in the court below. In view of this fact, we are of the opinion
that under both paragraphs 2 and 3 of section 164 of Act No. 190, above quoted, the respondent
judge was empowered and justified in granting the preliminary injunction prayed for by her. It
cannot be doubted that, if the defendant should dispose of all or any part of the conjugal
property during the pendency of the action for divorce, and squander or fraudulently conceal the
proceeds, that act "would probably work injustice to the plaintiff," or that it would probably be "in

violation of the plaintiff's rights, respecting the subject of the action, and tending to render the
judgment ineffectual." In this case the plaintiff's rights sought to be protected by said paragraph
3 is not the right to administer the conjugal property, as counsel for the petitioner believes, but
the right to share in the conjugal property upon the dissolution of the conjugal partnership.
The case under consideration, then, is covered or contemplated by the statute (sec. 164, Act
No. 190), so that there can be no question, in our opinion, as to the power of the respondent
judge to issue the preliminary injunction complained of by the petitioner. Indeed, even in a case
not covered by the statute this court had upheld the power of Court of First Instance to grant
preliminary injunctions. In the case of Manila Electric Railroad and Light Company vs. Del
Rosario and Jose (22 Phil., 433), Doroteo Jose asked for, and the Court of First Instance
granted ex parte, a writ of preliminary mandatory injunction directing the Manila Electric Railroad
and Light Company to continue furnishing electricity to Jose. Thereupon the Light Company filed
in this court a petition for the writ of certiorari against Judge S. del Rosario upon the ground that
Courts of First Instance in these Islands are wholly without jurisdiction to issue preliminary
mandatory injunctions under any circumstances whatever. This court denied that petition,
determining the power of the Courts of First Instance to issue preliminary injunction, as follows:
The power to grant preliminary injunctions, both preventative and mandatory, is a logical and
necessary incident of the general powers conferred upon Courts of First Instance in these
Islands, as courts of record of general and unlimited original jurisdiction, both legal and
equitable.
Insofar as the statute limits or prescribes the exercise of this power it must be followed: but
beyond this, and in cases not covered by or contemplated by the statute, these courts must
exercise their jurisdiction in the issuance of preliminary injunctions upon sound principles
applicable to the circumstances of each particular case, having in mind the nature of the
remedy, and the doctrine and practice established in the courts upon which our judicial is
modeled.
The only limitation upon the power of Courts of First Instance to issue preliminary injunctions,
either mandatory of preventative, is that they are to be issued in the "manner" or according to
the "method" provided therefor in the Code of Civil Procedure.
We conclude, therefore, that in an action for divorce brought by the wife against the husband, in
which the partition of the conjugal property is also prayed for, the wife may obtain a preliminary
injunction against the husband, prohibiting the latter from alienating or encumbering any part of
the conjugal property during the pendency of the action.
It follows from all of the foregoing that the respondent, the Honorable Antonio Villareal, as
Auxiliary Judge sitting in the Court of First Instance of the Province of Iloilo, had jurisdiction to
hear and determine the action for divorce instituted in said court by the respondent Narcisa
Geopano, and that he did not exceed his power and authority in issuing a preliminary injunction
against the defendant, prohibiting him from alienating or encumbering any part of the conjugal
property during the pendency of the action.
Therefore, the petition should be and is hereby denied, with costs against the petitioner. So
ordered. Mapa, C.J., Carson, Araullo, Malcolm, Avancea, Moir and Villamor, JJ., concur.
MANUEL J. C. REYES, petitioner, vs. HON. LEONOR INES-LUCIANO, as Judge of the
Juvenile & Domestic Relations Court, Quezon City, COURT OF APPEALS and CELIA
ILUSTRE-REYES, respondents. Eriberto D. Ignacio for petitioner. Gonzalo D. David for private
respondent.
FERNANDEZ, J.: This is a petition for certiorari to review the decision of the Court of Appeals in
CA-G.R. No. 06928-SP entitled "Manuel J. C. Reyes, petitioner, versus, The Hon. Leonor InesLuciano as Judge of the Juvenile & Domestic Relations Court (Quezon City) and Celia IlustreReyes, Respondents", dismissing the petition to annul the order of the respondent Judge
directing the petitioner to give support pendente lite to his wife, Celia Ilustre-Reyes, private
respondent herein, in the amount of P40,000.00 a month. 1
The private petitioner, Celia Ilustre-Reyes, filed in the Juvenile and Domestic Relations Court of
Quezon City a complaint dated June 3, 1976 against her husband, Manuel J. C. Reyes, for legal
separation on the ground that the defendant had attempted to kill plaintiff. The pertinent
allegations of the complaint are:
6.8 On March 10, 1976, defendant went to V. Ilustre and attacked plaintiff. He pummeled her
with fist blows that floored her, then held her head and, with intent to kill, bumped it several
times against the cement floor. When she ran upstairs to her father for protection, he pushed her
at the stairway of 13 flights and she fell sliding to the ground floor. Determined to finish her off,
he again gave her a strong swing at her abdomen which floored her half unconscious. Were it
not for plaintiff's father, he would have succeeded killing her;
6.9. On May 26, 1976, although on May 11 previous she ceased holding office with defendant at
Bel-Air Apartments elsewhere adverted to, she went thereto to get her overnight bag. Upon
seeing her, defendant yelled at her to get out of the office. When he did not mind him, he
suddenly doused her with a glass of grape juice, kicked her several times that landed at her
back and nape, and was going to hit her with a steel tray as her driver, Ricardo Mancera, came
due to her screams for help. For fear of further injury and for life, she rushed to Precinct 5 at
united Nations Avenue, Manila Metropolitan Police, for assistance and protection; 2
The plaintiff asked for support pendente lite for her and her three children. The defendant,
petitioner herein, opposed the application for support pendente lite on the ground that his wife
had committed adultery with her physician.
The application for support pendente lite was set for hearing and submitted for resolution on the
basis of the pleadings and the documents attached thereto by the parties.
The respondent Judge issued an order dated March 15, 1977 granting plaintiff's prayer for
alimony pendente litein the amount of P5,000.00 a month commencing from June 1976. 3
The petitioner filed a motion for reconsideration reiterating that his wife is not entitled to support
during the pendency of the case, and, alleging that even if she entitled, the amount awarded
was excessive. The respondent Judge reduced the amount from P5,000.00 to P44,00.00 a
month in an order dated June 17, 1977. 4
Manuel J. C. Reyes filed a petition for certiorari in the Court of Appeals dated July 25, 1977
asking that the order granting support pendente lite to private respondent. Celia Ilustre-Reyes,

be annulled on the ground that the respondent Judge, Leonor Ines-Luciano, had committed a
grave abuse of discretion or that said order be modified inasmuch as the amount awarded as
support pendente lite is excessive.
The Court of Appeals dismissed the petition because:
Considering the plight of the wife during the pendency of the case for legal separation and that
the husband appears to be financially capable of giving the support, We believe that the
petitioner has not presented a clear case of grave abuse of discretion on the part of the
respondent in issuing the questioned orders. We see no compelling reason to give it due
course. 5
The petitioner contends that the Court of Appeal committed the following error:
THE HON. COURT OF APPEALS GRIEVOUSLY ERRED IN A MANNER AMOUNTING IT CAN
ERROR OF LAW AND A DEPARTURE FROM THE ACCEPTED NORMS LAID DOWN BY THIS
HON. COURT IN THE CASES WE SHALL LATER ON DISCUSS, IN REFUSING TO GIVE DUE
COURSE TO THE ORIGINAL PETITION FOR certiorari HEREIN AGAINST RESPONDENTSAPPELLEES, AND IN AFFIRMING THE ORDERS FOR SUPPORT PENDENTE
LITE ANNEXES "F" AND "H" OF THIS PETITION WHEN HELD THAT RESPONDENTAPPELLEE JUDGE DID NOT COMMIT ANY ABUSE OF DISCRETION IN ISSUING SAID
ORDERS, FOR THE REASONS THAT:
A. IN ACTIONS FOR LEGAL SEPARATION THE WIFE IS ENTITLED TO SUPPORT FROM
THE HUSBAND DESPITE THE FACT THAT A CASE FOR ADULTERY HAD BEEN FILED BY
THE HUSBAND AGAINST HER; AND
B. IN DETERMINING THE AMOUNT OF SUPPORT PENDENTE LITE, IT IS ENOUGH THAT
THE COURT ASCERTAIN THE KIND AND AMOUNT OF EVIDENCE EVEN BY AFFIDAVITS
ONLY OR OTHER DOCUMENTARY EVIDENCE APPEARING IN THE RECORDS. 6
It is true that the adultery of the wife is a defense in an action for support however, the alleged
adultery of wife must be established by competent evidence. The allegation that the wife has
committed adultery will not bar her from the right receive support pendente lite. Adultery is a
good defense and if properly proved and sustained wig defeat the action. 7
In the instant case, at the hearing of the application for support pendente lite before the Juvenile
and Domestic Relations Court presided by the respondent Judge, Hon. Leonor Ines-Luciano the
petitioner did not present any evidence to prove the allegation that his wife, private respondent
Celia Ilustre-Reyes, had committed adultery with any person.
The petitioner has still the opportunity to adduce evidence on the alleged adultery of his wife
when the action for legal separation is heard on the merits before the Juvenile and Domestic
Relations Court of Quezon City. It is to be noted however, that as pointed out by the
respondents in their comment, the "private respondent was not asking support to be taken from
petitioner's personal funds or wherewithal, but from the conjugal propertywhich, was her
documentary evidence ...". 8 It is, therefore, doubtful whether adultery will affect her right to
alimony pendente lite. InQuintana vs. Lerma, 9 the action for support was based on the
obligation of the husband to support his wife.
The contention of the petitioner that the order of the respondent Judge granting the private
respondent support pendente lite in the amount of P4,000.00 a month is not supported by the
allegations of the complaint for legal separation and by competent evidence has no merit.
The complaint or legal separation contains allegations showing that on at least two occasions
the defendant, petitioner herein, had made attempts to kill the private respondent. Thus it is
alleged that on March 10, 1976, the defendant attacked plaintiff, pummeled her with fist blows
that floored her, held her head and with intent to kill, bumped it several times against the cement
floor and when she ran upstairs to her father for protection, the petitioner pushed her at the
stairway of thirteen (13) flights and she fell sliding to the ground floor and defendant gave her a
strong swing at her abdomen which floored her half unconscious and were it not for plaintiff's
father, defendant would have succeeded in killing her. 10 It is also alleged that on May 26, 1976,
the defendant doused Celia Ilustre-Reyes with a glass of grape juice, kicked her several times at
her back and nape and was going to hit her with a steel tray if it were not for her driver who
came due to her creams for help." 11
In fixing the amount of monthly support pendente lite of P4,000,00, the respondent judge did not
act capriciously and whimsically. When she originally fixed the amount of P5,000.00 a month,
the respondent Judge considered the following:
On record for plaintiff's cause are the following: that she and defendant were married on January
18, 1958; that she is presently unemployed and without funds, thus, she is being supported by
her father with whom she resides: that defendant had been maltreating her and Cried to kill her;
that all their conjugal properties are in the possession of defendant who is also president,
Manager and Treasurer of their corporation namely:
1. Standard Mineral Products, which was incorporated on February 9, 1959: presently with paidin capital of P295,670.00; assets and liabilities of P757,108.52; Retained Earnings of
P85,654.61: and majority stockholder is defendant;
2. Development and Technology Consultant Inc. incorporated on July 12, 1971, with paid-in
capital of P200,000.00; Assets and liabilities of P831,669.34; defendant owns 99% of the stocks;
and last Retained Earnings is P98,879.84.
3. The Contra-Prop Marine Philippines, Inc. which was incorporated on October 3, 1975, with
paid-in capital of P100,000 defendant owns 99% of the stocks.
To secure some of the of said Agreement of Counter-Guaranty Mortgage with Real Estate, and
Real Estate Mortgage were undertaken by plaintiff of their properties outside of other
accommodations; and that she needs of P5,000.00 a month for her support in accordance with
their station in life. 12
The amount of support pendente lite was reduced to P4,000.00 inasmuch as the children are in
the custody of the petitioner and are being supported by him.
It is thus seen that the respondent judge acted with due deliberation before fixing the amount of
support pendente lite in the amount of P4,000.00 a month.
In determining the amount to be awarded as support pendente lite it is not necessary to go fully
into the merits of the case, it being sufficient that the court ascertain the kind and amount of
evidence which it may deem sufficient to enable it to justly resolve the application, one way or
the other, in view of the merely provisional character of the resolution to be entered. Mere

affidavits may satisfy the court to pass upon the application for support pendente lite. 13 It is
enough the the facts be established by affidavits or other documentary evidence appearing in
the record. 14
The private respondent has submitted documents showing that the corporations controlled by
the petitioner have entered into multi-million contracts in projects of the Ministry of Public
Highways.
Considering the high cost of living due to inflation and the financial ability of the petitioner as
shown by the documents of record, We find that the amount of P4,000.00 a month granted by
the respondent Judge as alimonypendente lite to the private respondent is not excessive. There
is no showing that the respondent Judge has committed a grave abuse of discretion in granting
said support.
In a resolution dated July 31, 1978, this Court issued a temporary restraining order effective
immediately against the enforcement of the lower court's order giving support pendente lite to
private respondent in the sum of P4,000.00 monthly commencing June 1976 and in lieu thereof
to allow such support only to the extent of P1,000.00 a month. 15
Later the petitioner was required to pay the support at the rate of P1,000.00 a month which had
accumulated since June 1976 within ten (10) days from notice of the resolution: 16
The private respondent acknowledged on November 20, 1978 having received from the
petitioner, through his counsel a check in the amount of P30,000.00 as payment of support for
the period from June 1976 to November 1978 or thirty (30) months at P1,000.00 a month in
compliance with the resolution of this Court dated October 9, 1978.
In view of the foregoing, the support of P4,000.00 should be made to commence or, March 1,
1979. WHEREFORE, the petition for certiorari is hereby denied and the decision of the Council
of Appeals sought to be reviewed is affirmed with the modification that the support pendente
lite at the rate of Four Thousand Pesos (P4.000.00) a month should commence from March 1,
1979 without pronouncement as to costs. SO ORDERED. Teehankee (Chairman), Makasiar,
Guerrero, De Castro and Melencio-Herrera, JJ., concur.

VII. E. Effects of Decree Arts. 63, 64 FC

Cases
Banes vs Banes (Baez vs. Baez) 374 SCRA 340 G.R. No. 132592, G.R. No. 133628.
January 23, 2002.

Baez v. Baez, 374 SCRA 340 (2002)

Facts: There was an action pending for legal separation; petitioner contends that multiple
appeals are allowed.
Held: (1) Execution pending appeal is allowed when superior circumstances demanding urgency
outweigh the damages that may result
from the issuance of the writ. (2) The effects of the decree, such as entitlement to live
separately, dissolution and liquidation of the absolute community or conjugal partnership, and
custody of the minor children follow from the decree of legal separation. They are not separate
or distinct matters, rather they are mere incidents of legal separation. Thus they may not be
subject to multiple appeals.

1. Dissolution and liquidation of ACP or CPG

Case
2. Custody Art. 213, FC
3. Other Effects Art 372, CC
Cases
Matute v Macaraig
Facts: Wife sought and was granted divorce. Marriage was atraditional one in that husband
works while wife stays at home.
Held: Wife was entitled to equitable distribution in a no-faultdivorce especially since she
contributed her earnings duringthe early years of marriage to conjugal property and since
herhomemaker services were contributed over a considerableperiod of time, which also
contributed to the economic well-being of the family unit. According to the theory of
equitabledistribution homemaker services are valid contributions to theconjugal properties,
subject to the following conditions:
(1)thatit is NOT LIMITED to the possessory interest of a real estate;
(2)that it depends on the QUALITY of the services rendered,whether the wife has been frugal or
excessive in her expenses;
(3)the age and health of the wife, as well as the LENGTH ofthe marriage.
ROSARIO MATUTE, TRINIDAD MATUTE, CARLOS MATUTE, MATIAS MATUTE and
RAMON MATUTE,Petitioners, vs. HON. HIGINO MACADAEG and HON. MAGNO
GATMAITAN, Judges of the Court of First Instance of Manila, Branch X, and AMADEO
MATUTE, Respondents.
DECISION

BAUTISTA ANGELO, J.: This is a petition for certiorari and mandamus in which petitioners seek
to nullify the orders of respondent judge dated January 4 and April 30, 1952, denying their
petition to appeal as paupers from the decision rendered in Civil Case No. 14208 of the Court of
First Instance of Manila and, as alternative relief, to direct respondent judge to give course to
their appeal in the event their petition to appeal as paupers is denied.
Petitioners were plaintiffs in Civil Case No. 14208 filed in the Court of First Instance of Manila
against respondent Amadeo Matute "For Partition and Delivery of share in conjugal property,
with Petition For Receivership." Simultaneously with the filing of the complaint, petitioners filed a
petition to litigate as paupers under the provisions of Rule 3, section 22, of the Rules of Court.
This petition was granted by the court, then presided over by respondent judge.
Amadeo Matute, hereinafter referred to as respondent, instead of answering the complaint, filed
a motion to dismiss, and after proper hearing, the court entered an order on October 31, 1951
dismissing the complaint on the ground of res adjudicata. Copy of said order was received by
petitioners on November 3, 1951.
On December 1, 1951, petitioners filed their notice of appeal, record on appeal and a motion to
appeal as paupers in lieu of the appeal bond. On December 8, 1951, respondent filed a written
opposition to the motion to appeal as paupers alleging that petitioners were not really paupers
who could be allowed to litigate as such under the Rules of Court. In view of this opposition, the
court set the motion for hearing, but at this hearing, petitioners failed to appear, and on January
4, 1952, the court entered an order denying the motion. Copy of this order was received by
petitioners on January 18, 1952.
On January 24, 1952, petitioners filed a motion for reconsideration of the order entered on
January 4, 1952. This motion was heared on January 26, and on April 30, 1952, the court
denied the motion. Copy of the order of denial was received by petitioners on May 9, 1952, and
on the same date they filed an appeal bond of P60 coupled with a manifestation that the filing of
said bond should not be deemed as a waiver of their petition to prosecute their appeal as
paupers in the event this question is raised by them before the Supreme Court.
On May 14, 1952, respondent filed a motion to declare the judgment on the merits final and
executory, and notwithstanding the opposition of Petitioners, the motion was granted on May 17,
1952. Hence, this petition for certiorari.
The only question to be determined is whether petitioners can still appeal from the decision
rendered in civil case No. 14208 considering that they had filed the appeal bond beyond the
thirty-day period from the date copy of the decision was served on said petitioners.
It appears that when petitioners filed the complaint against respondent in civil case No. 14208
for partition and delivery of their share in certain conjugal property, they submitted to the court a
petition to litigate as paupers and this petition was granted under Rule 3, section 22, of the
Rules of Court. Under said section 22, the authority to litigate as pauper "shall include an
exemption from payment of legal fees and from filing appeal bond, printed record and printed
brief." It is perhaps for this reason that when petitioners took steps to perfect their appeal from
the decision rendered in the main case, instead of filing an appeal bond, they filed a motion to
appeal as paupers in lieu thereof. We take it that by virtue of the authority given by the court to
petitioners to litigate as paupers in the case, they are entitled to appeal without need of filing an
appeal bond, and this right can only be divested when the court rules otherwise.
The record shows that in view of the opposition interposed by respondent to the motion of
petitioners to appeal as paupers, the court set the motion for hearing, and because of the failure
of petitioners to appear, the court entered an order denying it, copy of which was received by
petitioners on January 18, 1952. On January 24, 1952, petitioners filed a motion for
reconsideration. On April 30, 1952, the court denied this motion, and copy of the order was
received by petitioners on May 9, 1952. And on the same date petitioners filed an appeal bond
of P60 with the reservation above adverted to. It therefore appears that, while said appeal bond
was not filed within the period of thirty days counting from the date they received copy of the
decision of the case (October 31, 1951), the record however shows that the said appeal bond
was filed only six days from receipt of the order denying their motion to appeal as paupers,
excluding the period spent in considering their motion for reconsideration. In our opinion, the
appeal bond has been filed on time because, as already stated, petitioners were entitled to
appeal as paupers under the original authority until the court rules otherwise, and this ruling only
came on January 4, 1952.
With regard to the other question touching on the alleged abuse committed by respondent judge
in denying the motion of petitioners to appeal as paupers, we find that said judge did not abuse
his discretion in denying it. There is enough evidence to warrant his action.
Wherefore, the petition as to the alternative relief is hereby granted, without pronouncement as
to costs. Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and
Labrador, JJ., concur.
ELISEA LAPERAL, petitioner, vs. REPUBLIC OF THE PHILIPPINES, oppositor.
Martin B. Laurea and Associates for petitioner. Office of the Solicitor General for oppositor.
BARRERA, J.: On May 10, 1960, Elisea Laperal filed in the Court of First Instance of Baguio
(Sp Proc. No. 433) a petition which reads:
1. That petitioner has been a bona fide resident of the City of Baguio for the last three years
prior to the date of the filing of this petition;
2. That petitioner's maiden name is ELISEA LAPERAL; that on March 24, 1939, she married Mr.
Enrique R. Santamaria; that in a partial decision entered on this Honorable Court on January 18,
1958, in Civil Case No. 356 of this Court, entitled 'Enrique R. Santamaria vs. Elisea L.
Santamaria' Mr. Enrique Santamaria was given a decree of legal separation from her; that the
said partial decision is now final;
3. That during her marriage to Enrique R. Santamaria, she naturally used, instead of her maiden
name, that of Elisea L. Santamaria; that aside from her legal separation from Enrique R.
Santamaria, she has also ceased to live with him for many years now;
4. That in view of the fact that she has been legally separated from Mr. Enrique R. Santamaria
and has likewise ceased to live with him for many years, it is desirable that she be allowed to
change her name and/or be permitted to resume using her maiden name, to wit: ELISEA
LAPERAL.

WHEREFORE, petitioner respectfully prayed that after the necessary proceedings are had, she
be allowed to resume using her maiden name of Elisea Laperal.
The petition was opposed by the City Attorney of Baguio on the ground that the same violates
the provisions of Article 370 (should be 372) of the Civil Code, and that it is not sanctioned by
the Rules of Court.
In its decision of October 31, 1960, the court denied the petition for the reason that Article 372 of
the Civil Code requires the wife, even after she is decreed legally separated from her husband,
to continue using the name and surname she employed before the legal separation. Upon
petitioner's motion, however, the court, treating the petition as one for change of name,
reconsidered its decision and granted the petition on the ground that to allow petitioner, who is a
businesswoman decreed legally separated from her husband, to continue using her married
name would give rise to confusion in her finances and the eventual liquidation of the conjugal
assets. Hence, this appeal by the State.
The contention of the Republic finds support in the provisions of Article 372 of the New Civil
Code which reads:
ART. 372. When legal separation has been granted, the wife shall continue using her name and
surname employed before the legal separation. (Emphasis supplied)
Note that the language of the statute is mandatory that the wife, even after the legal separation
has been decreed, shall continue using her name and surname employed before the legal
separation. This is so because her married status is unaffected by the separation, there being
no severance of the vinculum. It seems to be the policy of the law that the wife should continue
to use the name indicative of her unchanged status for the benefit of all concerned.
The appellee contends, however, that the petition is substantially for change of her name from
Elisea L. Santamaria, the one she has been using, since her marriage, to Elisea Laperal, her
maiden name, giving as reason or cause therefor her being legally separated from the husband
Enrique R. Santamaria, and the fact that they have ceased to live together for many years.
There seems to be no dispute that in the institution of these proceedings, the procedure
prescribed in Rule 103 of the Rules of Court for change of name has been observed. But from
the petition quoted in full at the beginning of these opinion, the only reason relied upon for the
change of name is the fact that petitioner is legally separated from her husband and has, in fact,
ceased to live with him for many years. It is doubtful, to say the least, whether Rule 103 which
refers to change of name in general, may prevail over the specific provisions of Article 372 of the
New Civil Code with regards to married women legally separated from their husbands. Even,
however, applying Rule 103 to this case, the fact of legal separation alone which is the only
basis for the petition at bar is, in our opinion, not a sufficient ground to justify a change of the
name of herein petitioner, for to hold otherwise would be to provide an easy circumvention of the
mandatory provisions of Article 372.
It is true that in the second decision which reconsidered the first it is stated that as the petitioner
owns extensive business interests, the continued used of her husband surname may cause
undue confusion in her finances and the eventual liquidation of the conjugal assets. This finding
is however without basis. In the first place, these were not the causes upon which the petition
was based; hence, obviously no evidence to this effect had been adduced. Secondly, with the
issuance of the decree of legal separation in 1958, the conjugal partnership between petitioner
and her husband had automatically been dissolved and liquidated. (Art. 106[2], Civil Cod).
Consequently, there could be no more occasion for an eventual liquidation of the conjugal
assets.
WHEREFORE, the order of the lower court of December 1, 1960, granting the petition, is hereby
set aside and the petition dismissed. Without costs. So ordered. Bengzon, C.J., Padilla, Bautista
Angelo, Labrador, Concepcion, Reyes, J.B.L., Paredes, Dizon, Regala and Makalintal,
JJ., concur.
F. Reconciliation
How Done Art. 65
Effects Arts. 66-67
VII. Divorce
A. Foreign Divorces Art. 15, NCC, Art. 26, FC
Cases:
ALICE REYES VAN DORN, petitioner, vs. HON. MANUEL V. ROMILLO, JR., as Presiding
Judge of Branch CX, Regional Trial Court of the National Capital Region Pasay City and
RICHARD UPTON respondents.
MELENCIO-HERRERA, J.:\ In this Petition for certiorari and Prohibition, petitioner Alice Reyes
Van Dorn seeks to set aside the Orders, dated September 15, 1983 and August 3, 1984, in Civil
Case No. 1075-P, issued by respondent Judge, which denied her Motion to Dismiss said case,
and her Motion for Reconsideration of the Dismissal Order, respectively.
The basic background facts are that petitioner is a citizen of the Philippines while private
respondent is a citizen of the United States; that they were married in Hongkong in 1972; that,
after the marriage, they established their residence in the Philippines; that they begot two
children born on April 4, 1973 and December 18, 1975, respectively; that the parties were
divorced in Nevada, United States, in 1982; and that petitioner has re-married also in Nevada,
this time to Theodore Van Dorn.
Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of
the Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's business in Ermita,
Manila, (the Galleon Shop, for short), is conjugal property of the parties, and asking that
petitioner be ordered to render an accounting of that business, and that private respondent be
declared with right to manage the conjugal property. Petitioner moved to dismiss the case on the
ground that the cause of action is barred by previous judgment in the divorce proceedings
before the Nevada Court wherein respondent had acknowledged that he and petitioner had "no
community property" as of June 11, 1982. The Court below denied the Motion to Dismiss in the
mentioned case on the ground that the property involved is located in the Philippines so that the
Divorce Decree has no bearing in the case. The denial is now the subject of this certiorari
proceeding.

Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to
appeal. certiorari and Prohibition are neither the remedies to question the propriety of an
interlocutory order of the trial Court. However, when a grave abuse of discretion was patently
committed, or the lower Court acted capriciously and whimsically, then it devolves upon this
Court in a certiorari proceeding to exercise its supervisory authority and to correct the error
committed which, in such a case, is equivalent to lack of jurisdiction. 1 Prohibition would then lie
since it would be useless and a waste of time to go ahead with the proceedings. 2 Weconsider
the petition filed in this case within the exception, and we have given it due course.
For resolution is the effect of the foreign divorce on the parties and their alleged conjugal
property in the Philippines.
Petitioner contends that respondent is estopped from laying claim on the alleged conjugal
property because of the representation he made in the divorce proceedings before the American
Court that they had no community of property; that the Galleon Shop was not established
through conjugal funds, and that respondent's claim is barred by prior judgment.
For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot
prevail over the prohibitive laws of the Philippines and its declared national policy; that the acts
and declaration of a foreign Court cannot, especially if the same is contrary to public policy,
divest Philippine Courts of jurisdiction to entertain matters within its jurisdiction.
For the resolution of this case, it is not necessary to determine whether the property relations
between petitioner and private respondent, after their marriage, were upon absolute or relative
community property, upon complete separation of property, or upon any other regime. The
pivotal fact in this case is the Nevada divorce of the parties.
The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner
who appeared in person before the Court during the trial of the case. It also obtained jurisdiction
over private respondent who, giving his address as No. 381 Bush Street, San Francisco,
California, authorized his attorneys in the divorce case, Karp & Gradt Ltd., to agree to the
divorce on the ground of incompatibility in the understanding that there were neither community
property nor community obligations. 3 As explicitly stated in the Power of Attorney he executed in
favor of the law firm of KARP & GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in
the divorce proceedings:
xxx xxx xxx
You are hereby authorized to accept service of Summons, to file an Answer, appear on my
behalf and do an things necessary and proper to represent me, without further contesting,
subject to the following:
1. That my spouse seeks a divorce on the ground of incompatibility.
2. That there is no community of property to be adjudicated by the Court.
3. 'I'hat there are no community obligations to be adjudicated by the court.
xxx xxx xxx 4
There can be no question as to the validity of that Nevada divorce in any of the States of the
United States. The decree is binding on private respondent as an American citizen. For
instance, private respondent cannot sue petitioner, as her husband, in any State of the Union.
What he is contending in this case is that the divorce is not valid and binding in this jurisdiction,
the same being contrary to local law and public policy.
It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5 only
Philippine nationals are covered by the policy against absolute divorces the same being
considered contrary to our concept of public police and morality. However, aliens may obtain
divorces abroad, which may be recognized in the Philippines, provided they are valid according
to their national law. 6 In this case, the divorce in Nevada released private respondent from the
marriage from the standards of American law, under which divorce dissolves the marriage. As
stated by the Federal Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed.
794, 799:
The purpose and effect of a decree of divorce from the bond of matrimony by a court of
competent jurisdiction are to change the existing status or domestic relation of husband and
wife, and to free them both from the bond. The marriage tie when thus severed as to one party,
ceases to bind either. A husband without a wife, or a wife without a husband, is unknown to the
law. When the law provides, in the nature of a penalty. that the guilty party shall not marry again,
that party, as well as the other, is still absolutely freed from the bond of the former marriage.
Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as petitioner's husband entitled to exercise
control over conjugal assets. As he is bound by the Decision of his own country's Court, which
validly exercised jurisdiction over him, and whose decision he does not repudiate, he is
estopped by his own representation before said Court from asserting his right over the alleged
conjugal property.
To maintain, as private respondent does, that, under our laws, petitioner has to be considered
still married to private respondent and still subject to a wife's obligations under Article 109, et.
seq. of the Civil Code cannot be just. Petitioner should not be obliged to live together with,
observe respect and fidelity, and render support to private respondent. The latter should not
continue to be one of her heirs with possible rights to conjugal property. She should not be
discriminated against in her own country if the ends of justice are to be served.
WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the
Complaint filed in Civil Case No. 1075-P of his Court.
Without costs.
SO ORDERED.
Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and Patajo, JJ., concur.
FE D. QUITA, petitioner, vs. COURT OF APPEALS and BLANDINA DANDAN,* respondents.
D E C I S I O N BELLOSILLO, J .: FE D. QUITA and Arturo T. Padlan, both Filipinos, were
married in the Philippines on 18 May 1941. They were not however blessed with
children. Somewhere along the way their relationship soured. Eventually Fe sued Arturo for
divorce in San Francisco, California, U.S.A.She submitted in the divorce proceedings a private
writing dated 19 July 1950 evidencing their agreement to live separately from each other and a
settlement of their conjugal properties. On 23 July 1954 she obtained a final judgment of

divorce. Three (3) weeks thereafter she married a certain Felix Tupaz in the same locality but
their relationship also ended in a divorce. Still in the U.S.A., she married for the third time, to a
certain Wernimont.
On 16 April 1972 Arturo died. He left no will. On 31 August 1972 Lino Javier Inciong filed a
petition with the Regional Trial Court of Quezon City for issuance of letters of administration
concerning the estate of Arturo in favor of the Philippine Trust Company. Respondent Blandina
Dandan (also referred to as Blandina Padlan), claiming to be the surviving spouse of Arturo
Padlan, and Claro, Alexis, Ricardo, Emmanuel, Zenaida and Yolanda, all surnamed Padlan,
named in the petition as surviving children of Arturo Padlan, opposed the petition and prayed for
the appointment instead of Atty. Leonardo Cabasal, which was resolved in favor of the
latter. Upon motion of the oppositors themselves, Atty. Cabasal was later replaced by Higino
Castillon. On 30 April 1973 the oppositors (Blandina and the Padlan children) submitted certified
photocopies of the 19 July 1950 private writing and the final judgment of divorce between
petitioner and Arturo. Later Ruperto T. Padlan, claiming to be the sole surviving brother of the
deceased Arturo, intervened.
On 7 October 1987 petitioner moved for the immediate declaration of heirs of the decedent and
the distribution of his estate. At the scheduled hearing on 23 October 1987, private respondent
as well as the six (6) Padlan children and Ruperto failed to appear despite due notice. On the
same day, the trial court required the submission of the records of birth of the Padlan children
within ten (10) days from receipt thereof, after which, with or without the documents, the issue
on the declaration of heirs would be considered submitted for resolution. The prescribed period
lapsed without the required documents being submitted.
The trial court invoking Tenchavez v. Escao[1] which held that "a foreign divorce between Filipino
citizens sought and decreed after the effectivity of the present Civil Code (Rep. Act 386) was not
entitled to recognition as valid in this jurisdiction,"[2] disregarded the divorce between petitioner
and Arturo. Consequently, it expressed the view that their marriage subsisted until the death of
Arturo in 1972. Neither did it consider valid their extrajudicial settlement of conjugal properties
due to lack of judicial approval.[3] On the other hand, it opined that there was no showing that
marriage existed between private respondent and Arturo, much less was it shown that the
alleged Padlan children had been acknowledged by the deceased as his children with her. As
regards Ruperto, it found that he was a brother of Arturo. On 27 November 1987[4] only petitioner
and Ruperto were declared the intestate heirs of Arturo. Accordingly, equal adjudication of the
net hereditary estate was ordered in favor of the two intestate heirs.[5]
On motion for reconsideration, Blandina and the Padlan children were allowed to present proofs
that the recognition of the children by the deceased as his legitimate children, except Alexis who
was recognized as his illegitimate child, had been made in their respective records of birth. Thus
on 15 February 1988[6] partial reconsideration was granted declaring the Padlan children, with
the exception of Alexis, entitled to one-half of the estate to the exclusion of Ruperto Padlan, and
petitioner to the other half.[7] Private respondent was not declared an heir.Although it was stated
in the aforementioned records of birth that she and Arturo were married on 22 April 1947, their
marriage was clearly void since it was celebrated during the existence of his previous marriage
to petitioner.
In their appeal to the Court of Appeals, Blandina and her children assigned as one of the errors
allegedly committed by the trial court the circumstance that the case was decided without a
hearing, in violation of Sec. 1, Rule 90, of the Rules of Court, which provides that if there is a
controversy before the court as to who are the lawful heirs of the deceased person or as to the
distributive shares to which each person is entitled under the law, the controversy shall be heard
and decided as in ordinary cases.
Respondent appellate court found this ground alone sufficient to sustain the appeal; hence, on
11 September 1995 it declared null and void the 27 November 1987 decision and 15 February
1988 order of the trial court, and directed the remand of the case to the trial court for further
proceedings.[8] On 18 April 1996 it denied reconsideration.[9]
Should this case be remanded to the lower court for further proceedings? Petitioner insists that
there is no need because, first, no legal or factual issue obtains for resolution either as to the
heirship of the Padlan children or as to their respective shares in the intestate estate of the
decedent; and, second, the issue as to who between petitioner and private respondent is the
proper heir of the decedent is one of law which can be resolved in the present petition based on
established facts and admissions of the parties.
We cannot sustain petitioner. The provision relied upon by respondent court is clear: If there is
a controversy before the court as to who are the lawful heirs of the deceased person or as to
the distributive shares to which each person is entitled under the law, the controversy shall be
heard and decided as in ordinary cases.
We agree with petitioner that no dispute exists either as to the right of the six (6) Padlan children
to inherit from the decedent because there are proofs that they have been duly acknowledged
by him and petitioner herself even recognizes them as heirs of Arturo Padlan;[10] nor as to their
respective hereditary shares. But controversy remains as to who is the legitimate surviving
spouse of Arturo. The trial court, after the parties other than petitioner failed to appear during the
scheduled hearing on 23 October 1987 of the motion for immediate declaration of heirs and
distribution of estate, simply issued an order requiring the submission of the records of birth of
the Padlan children within ten (10) days from receipt thereof, after which, with or without the
documents, the issue on declaration of heirs would be deemed submitted for resolution.
We note that in her comment to petitioner's motion private respondent raised, among others, the
issue as to whether petitioner was still entitled to inherit from the decedent considering that she
had secured a divorce in the U.S.A. and in fact had twice remarried. She also invoked the above
quoted procedural rule.[11] To this, petitioner replied that Arturo was a Filipino and as such
remained legally married to her in spite of the divorce they obtained.[12] Reading between the
lines, the implication is that petitioner was no longer a Filipino citizen at the time of her divorce
from Arturo. This should have prompted the trial court to conduct a hearing to establish her
citizenship. The purpose of a hearing is to ascertain the truth of the matters in issue with the aid
of documentary and testimonial evidence as well as the arguments of the parties either
supporting or opposing the evidence. Instead, the lower court perfunctorily settled her claim in
her favor by merely applying the ruling in Tenchavez v. Escao.

Then in private respondent's motion to set aside and/or reconsider the lower court's decision
she stressed that the citizenship of petitioner was relevant in the light of the ruling in Van Dorn v.
Romillo Jr.[13] that aliens may obtain divorces abroad, which may be recognized in the
Philippines, provided they are valid according to their national law. She prayed therefore that the
case be set for hearing.[14] Petitioner opposed the motion but failed to squarely address the issue
on her citizenship.[15] The trial court did not grant private respondent's prayer for a hearing but
proceeded to resolve her motion with the finding that both petitioner and Arturo were "Filipino
citizens and were married in the Philippines."[16] It maintained that their divorce obtained in 1954
in San Francisco, California, U.S.A., was not valid in Philippine jurisdiction.We deduce that the
finding on their citizenship pertained solely to the time of their marriage as the trial court was not
supplied with a basis to determine petitioner's citizenship at the time of
their divorce. The doubt persisted as to whether she was still a Filipino citizen when their divorce
was decreed. The trial court must have overlooked the materiality of this aspect. Once proved
that she was no longer a Filipino citizen at the time of their divorce, Van Dorn would become
applicable and petitioner could very well lose her right to inherit from Arturo.
Respondent again raised in her appeal the issue on petitioner's citizenship; [17] it did not merit
enlightenment however from petitioner.[18] In the present proceeding, petitioner's citizenship is
brought anew to the fore by private respondent. She even furnishes the Court with the transcript
of stenographic notes taken on 5 May 1995 during the hearing for the reconstitution of the
original of a certain transfer certificate title as well as the issuance of new owner's duplicate
copy thereof before another trial court. When asked whether she was an American citizen
petitioner answered that she was since 1954.[19] Significantly, the decree of divorce of petitioner
and Arturo was obtained in the same year. Petitioner however did not bother to file a reply
memorandum to erase the uncertainty about her citizenship at the time of their divorce, a factual
issue requiring hearings to be conducted by the trial court. Consequently, respondent appellate
court did not err in ordering the case returned to the trial court for further proceedings.
We emphasize however that the question to be determined by the trial court should be limited
only to the right of petitioner to inherit from Arturo as his surviving spouse. Private respondent's
claim to heirship was already resolved by the trial court. She and Arturo were married on 22 April
1947 while the prior marriage of petitioner and Arturo was subsisting thereby resulting in a
bigamous marriage considered void from the beginning under Arts. 80 and 83 of the Civil
Code. Consequently, she is not a surviving spouse that can inherit from him as this status
presupposes a legitimate relationship.[20]
As regards the motion of private respondent for petitioner and her counsel to be declared in
contempt of court and that the present petition be dismissed for forum shopping,[21] the same
lacks merit. For forum shopping to exist the actions must involve the same transactions and
same essential facts and circumstances. There must also be identical causes of action, subject
matter and issue.[22] The present petition deals with declaration of heirship while the subsequent
petitions filed before the three (3) trial courts concern the issuance of new owner's duplicate
copies of titles of certain properties belonging to the estate of Arturo. Obviously, there is no
reason to declare the existence of forum shopping.
WHEREFORE, the petition is DENIED. The decision of respondent Court of Appeals ordering
the remand of the case to the court of origin for further proceedings and declaring null and void
its decision holding petitioner Fe D. Quita and Ruperto T. Padlan as intestate heirs
isAFFIRMED. The order of the appellate court modifying its previous decision by granting onehalf (1/2) of the net hereditary estate to the Padlan children, namely, Claro, Ricardo, Emmanuel,
Zenaida and Yolanda, with the exception of Alexis, all surnamed Padlan, instead of Arturo's
brother Ruperto Padlan, is likewise AFFIRMED. The Court however emphasizes that the
reception of evidence by the trial court should be limited to the hereditary rights of petitioner as
the surviving spouse of Arturo Padlan.
The motion to declare petitioner and her counsel in contempt of court and to dismiss the present
petition for forum shopping is DENIED. SO ORDERED. Puno, Mendoza, and Martinez,
JJ., concur.
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs. REDERICK A.
RECIO, respondent.
DECISION
PANGANIBAN, J.:
A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such
decree is valid according to the national law of the foreigner. However, the divorce decree and
the governing personal law of the alien spouse who obtained the divorce must be proven.Our
courts do not take judicial notice of foreign laws and judgments; hence, like any other facts, both
the divorce decree and the national law of the alien must be alleged and proven according to our
law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the
January 7, 1999 Decision[1] and the March 24, 1999 Order[2] of the Regional Trial Court of
Cabanatuan City, Branch 28, in Civil Case No. 3026AF. The assailed Decision disposed as
follows:
WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A.
Recio solemnized on January 12, 1994 at Cabanatuan City as dissolved and both parties can
now remarry under existing and applicable laws to any and/or both parties. [3]
The assailed Order denied reconsideration of the above-quoted Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon,
Rizal, on March 1, 1987.[4] They lived together as husband and wife in Australia. On May 18,
1989, [5] a decree of divorce, purportedly dissolving the marriage, was issued by an Australian
family court.
On June 26, 1992, respondent became an Australian citizen, as shown by a Certificate of
Australian Citizenship issued by the Australian government.[6] Petitioner -- a Filipina -- and
respondent were married on January 12, 1994 in Our Lady of Perpetual Help Church in

Cabanatuan City.[7] In their application for a marriage license, respondent was declared as single
and Filipino.[8]
Starting October 22, 1995, petitioner and respondent lived separately without prior judicial
dissolution of their marriage. While the two were still in Australia, their conjugal assets were
divided on May 16, 1996, in accordance with their Statutory Declarations secured in Australia. [9]
On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage[10] in the
court a quo, on the ground of bigamy -- respondent allegedly had a prior subsisting marriage at
the time he married her on January 12, 1994. She claimed that she learned of respondents
marriage to Editha Samson only in November, 1997.
In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his
prior marriage and its subsequent dissolution.[11] He contended that his first marriage to an
Australian citizen had been validly dissolved by a divorce decree obtained in Australia in 1989;
[12]
thus, he was legally capacitated to marry petitioner in 1994.
On July 7, 1998 -- or about five years after the couples wedding and while the suit for the
declaration of nullity was pending -- respondent was able to secure a divorce decree from a
family court in Sydney, Australia because the marriage ha[d] irretrievably broken down. [13]
Respondent prayed in his Answer that the Complaint be dismissed on the ground that it stated
no cause of action.[14] The Office of the Solicitor General agreed with respondent.[15] The court
marked and admitted the documentary evidence of both parties.[16] After they submitted their
respective memoranda, the case was submitted for resolution.[17]
Thereafter, the trial court rendered the assailed Decision and Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on the ground that the divorce issued in Australia
was valid and recognized in the Philippines. It deemed the marriage ended, but not on the basis
of any defect in an essential element of the marriage; that is, respondents alleged lack of legal
capacity to remarry. Rather, it based its Decision on the divorce decree obtained by
respondent. The Australian divorce had ended the marriage; thus, there was no more marital
union to nullify or annul.
Hence, this Petition.[18]
Issues
Petitioner submits the following issues for our consideration:
1 The trial court gravely erred in finding that the divorce decree obtained in Australia by the
respondent ipso facto terminated his first marriage to Editha Samson thereby capacitating him to
contract a second marriage with the petitioner.
2 The failure of the respondent, who is now a naturalized Australian, to present a certificate of
legal capacity to marry constitutes absence of a substantial requisite voiding the petitioners
marriage to the respondent
3 The trial court seriously erred in the application of Art. 26 of the Family Code in this case.
4 The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and 53
of the Family Code as the applicable provisions in this case.
5 The trial court gravely erred in pronouncing that the divorce decree obtained by the
respondent in Australia ipso facto capacitated the parties to remarry, without first securing a
recognition of the judgment granting the divorce decree before our courts.[19]
The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two
pivotal ones: (1) whether the divorce between respondent and Editha Samson was proven, and
(2) whether respondent was proven to be legally capacitated to marry petitioner. Because of our
ruling on these two, there is no more necessity to take up the rest.
The Courts Ruling
The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and Editha Samson
Petitioner assails the trial courts recognition of the divorce between respondent and Editha
Samson. Citing Adong v. Cheong Seng Gee,[20] petitioner argues that the divorce decree, like
any other foreign judgment, may be given recognition in this jurisdiction only upon proof of the
existence of (1) the foreign law allowing absolute divorce and (2) the alleged divorce decree
itself. She adds that respondent miserably failed to establish these elements.
Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages
solemnized abroad are governed by the law of the place where they were celebrated (the lex
loci celebrationis). In effect, the Code requires the presentation of the foreign law to show the
conformity of the marriage in question to the legal requirements of the place where the marriage
was performed.
At the outset, we lay the following basic legal principles as the take-off points for our
discussion. Philippine law does not provide for absolute divorce; hence, our courts cannot grant
it.[21] A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad,
because of Articles 15[22] and 17[23] of the Civil Code.[24] In mixed marriages involving a Filipino
and a foreigner, Article 26[25] of the Family Code allows the former to contract a subsequent
marriage in case the divorce is validly obtained abroad by the alien spouse capacitating him or
her to remarry.[26] A divorce obtained abroad by a couple, who are both aliens, may be
recognized in the Philippines, provided it is consistent with their respective national laws. [27]
A comparison between marriage and divorce, as far as pleading and proof are concerned, can
be made. Van Dorn v. Romillo Jr. decrees that aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid according to their national law.
[28]
Therefore, before a foreign divorce decree can be recognized by our courts, the party
pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law
allowing it.[29] Presentation solely of the divorce decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply
with the registration requirements under Articles 11, 13 and 52 of the Family Code. These
articles read as follows:
ART. 11. Where a marriage license is required, each of the contracting parties shall file
separately a sworn application for such license with the proper local civil registrar which shall
specify the following:

xxxxxxxxx
(5) If previously married, how, when and where the previous marriage was dissolved or
annulled;
xxxxxxxxx
ART. 13. In case either of the contracting parties has been previously married, the applicant
shall be required to
ART. 13. In case either of the contracting parties has been previously married, the applicant
shall be required to furnish, instead of the birth or baptismal certificate required in the last
preceding article, the death certificate of the deceased spouse or the judicial decree of the
absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her
previous marriage. x x x.
ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and
distribution of the properties of the spouses, and the delivery of the childrens presumptive
legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise,
the same shall not affect their persons.
Respondent, on the other hand, argues that the Australian divorce decree is a public document
-- a written official act of an Australian family court. Therefore, it requires no further proof of its
authenticity and due execution.
Respondent is getting ahead of himself. Before a foreign judgment is given presumptive
evidentiary value, the document must first be presented and admitted in evidence.[30] A divorce
obtained abroad is proven by the divorce decree itself. Indeed the best evidence of a judgment
is the judgment itself.[31] The decree purports to be a written act or record of an act of an official
body or tribunal of a foreign country.[32]
Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven
as a public or official record of a foreign country by either (1) an official publication or (2) a copy
thereof attested[33] by the officer having legal custody of the document. If the record is not kept in
the Philippines, such copy must be (a) accompanied by a certificate issued by the proper
diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in
which the record is kept and (b) authenticated by the seal of his office. [34]
The divorce decree between respondent and Editha Samson appears to be an authentic one
issued by an Australian family court.[35] However, appearance is not sufficient; compliance with
the aforementioned rules on evidence must be demonstrated.
Fortunately for respondents cause, when the divorce decree of May 18, 1989 was submitted in
evidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had
not been registered in the Local Civil Registry of Cabanatuan City.[36] The trial court ruled that it
was admissible, subject to petitioners qualification.[37] Hence, it was admitted in evidence and
accorded weight by the judge. Indeed, petitioners failure to object properly rendered the divorce
decree admissible as a written act of the Family Court of Sydney, Australia.[38]
Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary;
respondent was no longer bound by Philippine personal laws after he acquired Australian
citizenship in 1992.[39] Naturalization is the legal act of adopting an alien and clothing him with
the political and civil rights belonging to a citizen.[40] Naturalized citizens, freed from the
protective cloak of their former states, don the attires of their adoptive countries. By becoming
an Australian, respondent severed his allegiance to the Philippines and the vinculum juris that
had tied him to Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian divorce law falls upon petitioner,
because she is the party challenging the validity of a foreign judgment. He contends that
petitioner was satisfied with the original of the divorce decree and was cognizant of the marital
laws of Australia, because she had lived and worked in that country for quite a long
time. Besides, the Australian divorce law is allegedly known by Philippine courts; thus, judges
may take judicial notice of foreign laws in the exercise of sound discretion.
We are not persuaded. The burden of proof lies with the party who alleges the existence of a
fact or thing necessary in the prosecution or defense of an action.[41] In civil cases, plaintiffs have
the burden of proving the material allegations of the complaint when those are denied by the
answer; and defendants have the burden of proving the material allegations in their answer
when they introduce new matters.[42] Since the divorce was a defense raised by respondent, the
burden of proving the pertinent Australian law validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws.
[43]
Like any other facts, they must be alleged and proved. Australian marital laws are not among
those matters that judges are supposed to know by reason of their judicial function. [44]The power
of judicial notice must be exercised with caution, and every reasonable doubt upon the subject
should be resolved in the negative.
Second Issue: Respondents Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of the divorce, respondent was legally
incapacitated to marry her in 1994. Hence, she concludes that their marriage was void ab initio.
Respondent replies that the Australian divorce decree, which was validly admitted in evidence,
adequately established his legal capacity to marry under Australian law.
Respondents contention is untenable. In its strict legal sense, divorce means the legal
dissolution of a lawful union for a cause arising after marriage. But divorces are of different
types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and (2) limited
divorce ora mensa et thoro. The first kind terminates the marriage, while the second suspends it
and leaves the bond in full force.[45] There is no showing in the case at bar which type of divorce
was procured by respondent.
Respondent presented a decree nisi or an interlocutory decree -- a conditional or provisional
judgment of divorce. It is in effect the same as a separation from bed and board, although an
absolute divorce may follow after the lapse of the prescribed period during which no
reconciliation is effected.[46]
Even after the divorce becomes absolute, the court may under some foreign statutes and
practices, still restrict remarriage. Under some other jurisdictions, remarriage may be limited by
statute; thus, the guilty party in a divorce which was granted on the ground of adultery may be

prohibited from marrying again. The court may allow a remarriage only after proof of good
behavior.[47]
On its face, the herein Australian divorce decree contains a restriction that reads:
1. A party to a marriage who marries again before this decree becomes absolute (unless the
other party has died) commits the offence of bigamy.[48]
This quotation bolsters our contention that the divorce obtained by respondent may have been
restricted. It did not absolutely establish his legal capacity to remarry according to his national
law. Hence, we find no basis for the ruling of the trial court, which erroneously assumed that the
Australian divorce ipso facto restored respondents capacity to remarry despite the paucity of
evidence on this matter.
We also reject the claim of respondent that the divorce decree raises a disputable presumption
or presumptive evidence as to his civil status based on Section 48, Rule 39[49] of the Rules of
Court, for the simple reason that no proof has been presented on the legal effects of the divorce
decree obtained under Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code
was not submitted together with the application for a marriage license. According to her, its
absence is proof that respondent did not have legal capacity to remarry.
We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of
the party concerned. The certificate mentioned in Article 21 of the Family Code would have been
sufficient to establish the legal capacity of respondent, had he duly presented it in court. A duly
authenticated and admitted certificate is prima facie evidence of legal capacity to marry on the
part of the alien applicant for a marriage license.[50]
As it is, however, there is absolutely no evidence that proves respondents legal capacity to
marry petitioner. A review of the records before this Court shows that only the following exhibits
were presented before the lower court: (1) for petitioner: (a) Exhibit A Complaint; [51] (b) Exhibit B
Certificate of Marriage Between Rederick A. Recio (Filipino-Australian) and Grace J. Garcia
(Filipino) on January 12, 1994 in Cabanatuan City, Nueva Ecija;[52] (c) Exhibit C Certificate of
Marriage Between Rederick A. Recio (Filipino) and Editha D. Samson (Australian) on March 1,
1987 in Malabon, Metro Manila;[53] (d) Exhibit D Office of the City Registrar of Cabanatuan City
Certification that no information of annulment between Rederick A. Recio and Editha D. Samson
was in its records;[54] and (e) Exhibit E Certificate of Australian Citizenship of Rederick A. Recio;
[55]
(2) for respondent: (a) Exhibit 1 -- Amended Answer;[56] (b) Exhibit 2 Family Law Act 1975
Decree Nisi of Dissolution of Marriage in the Family Court of Australia; [57] (c) Exhibit 3 Certificate
of Australian Citizenship of Rederick A. Recio;[58](d) Exhibit 4 Decree Nisi of Dissolution of
Marriage in the Family Court of Australia Certificate;[59] and Exhibit 5 -- Statutory Declaration of
the Legal Separation Between Rederick A. Recio and Grace J. Garcia Recio since October 22,
1995.[60]
Based on the above records, we cannot conclude that respondent, who was then a naturalized
Australian citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree
with petitioners contention that the court a quo erred in finding that the divorce decree ipso facto
clothed respondent with the legal capacity to remarry without requiring him to adduce sufficient
evidence to show the Australian personal law governing his status; or at the very least, to prove
his legal capacity to contract the second marriage.
Neither can we grant petitioners prayer to declare her marriage to respondent null and void on
the ground of bigamy. After all, it may turn out that under Australian law, he was really
capacitated to marry petitioner as a direct result of the divorce decree. Hence, we believe that
the most judicious course is to remand this case to the trial court to receive evidence, if any,
which show petitioners legal capacity to marry petitioner. Failing in that, then the court a
quo may declare a nullity of the parties marriage on the ground of bigamy, there being already in
evidence two existing marriage certificates, which were both obtained in the Philippines, one in
Malabon, Metro Manila dated March 1, 1987 and the other, in Cabanatuan City dated January
12, 1994.
WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the
case to the court a quo for the purpose of receiving evidence which conclusively show
respondents legal capacity to marry petitioner; and failing in that, of declaring the parties
marriage void on the ground of bigamy, as above discussed. No costs.
SO ORDERED. Melo, (Chairman), Vitug, and Sandoval-Gutierrez, JJ., concur.
FACTS: Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian Citizen, in
Malabon, Rizal on March 1, 1987. They lived as husband and wife in Australia. However, an
Australian family court issued purportedly a decree of divorce, dissolving the marriage of
Rederick and Editha on May 18, 1989.
On January 12, 1994, Rederick married Grace J. Garcia where it was solemnized at Our lady of
Perpetual Help Church, Cabanatuan City. Since October 22, 1995, the couple lived separately
without prior judicial dissolution of their marriage. As a matter of fact, while they were still in
Australia, their conjugal assets were divided on May 16, 1996, in accordance with their Statutory
Declarations secured in Australia.
Grace filed a Complaint for Declaration of Nullity of Marriage on the ground of bigamy on March
3, 1998, claiming that she learned only in November 1997, Redericks marriage with Editha
Samson.
ISSUE: Whether the decree of divorce submitted by Rederick Recio is admissible as evidence
to prove his legal capacity to marry petitioner and absolved him of bigamy.
HELD: The nullity of Redericks marriage with Editha as shown by the divorce decree issued
was valid and recognized in the Philippines since the respondent is a naturalized Australian.
However, there is absolutely no evidence that proves respondents legal capacity to marry
petitioner though the former presented a divorce decree. The said decree, being a foreign
document was inadmissible to court as evidence primarily because it was not authenticated by
the consul/ embassy of the country where it will be used.
Under Sections 24 and 25 of Rule 132, a writing or document may be proven as a public or
official record of a foreign country by either:
(1) an official publication or

(2) a copy thereof attested by the officer having legal custody of the document. If the record is
not kept in the Philippines, such copy must be:
(a) accompanied by a certificate issued by the proper diplomatic or consular officer in the
Philippine foreign service stationed in the foreign country in which the record is kept and
(b) authenticated by the seal of his office.
Thus, the Supreme Court remands the case to the Regional Trial Court of Cabanatuan City to
receive or trial evidence that will conclusively prove respondents legal capacity to marry
petitioner and thus free him on the ground of bigamy.

REPUBLIC OF THE PHILIPPINES vs. CIPRIANO ORBECIDO III

G. R. No. 154380 October 5, 2005
DECISION
QUISUMBING, J.: Given a valid marriage between two Filipino citizens, where one party is later
naturalized as a foreign citizen and obtains a valid divorce decree capacitating him or her to
remarry, can the Filipino spouse likewise remarry under Philippine law?
Before us is a case of first impression that behooves the Court to make a definite ruling on this
apparently novel question, presented as a pure question of law.
In this petition for review, the Solicitor General assails the Decision[1] dated May 15, 2002, of
the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution[2] dated
July 4, 2002 denying the motion for reconsideration. The court a quo had declared that herein
respondent Cipriano Orbecido III is capacitated to remarry. The fallo of the impugned Decision
reads:
WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family Code
and by reason of the divorce decree obtained against him by his American wife, the petitioner is
given the capacity to remarry under the Philippine Law.
IT IS SO ORDERED.[3]
The factual antecedents, as narrated by the trial court, are as follows.
On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church
of Christ in the Philippines in Lam-an, Ozamis City. Their marriage was blessed with a son and a
daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido.
In 1986, Ciprianos wife left for the United States bringing along their son Kristoffer. A few years
later, Cipriano discovered that his wife had been naturalized as an American citizen.
Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree
and then married a certain Innocent Stanley. She, Stanley and her child by him currently live at
5566 A. Walnut Grove Avenue, San Gabriel, California.
Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph
2 of Article 26 of the Family Code. No opposition was filed. Finding merit in the petition, the court
granted the same. The Republic, herein petitioner, through the Office of the Solicitor General
(OSG), sought reconsideration but it was denied.
In this petition, the OSG raises a pure question of law:
WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE FAMILY
CODE[4]
The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the
instant case because it only applies to a valid mixed marriage; that is, a marriage celebrated
between a Filipino citizen and an alien. The proper remedy, according to the OSG, is to file a
petition for annulment or for legal separation.[5] Furthermore, the OSG argues there is no law
that governs respondents situation. The OSG posits that this is a matter of legislation and not of
judicial determination.[6]
For his part, respondent admits that Article 26 is not directly applicable to his case but insists
that when his naturalized alien wife obtained a divorce decree which capacitated her to remarry,
he is likewise capacitated by operation of law pursuant to Section 12, Article II of the
Constitution.[7]
At the outset, we note that the petition for authority to remarry filed before the trial court actually
constituted a petition for declaratory relief. In this connection, Section 1, Rule 63 of the Rules of
Court provides:
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
Section 1. Who may file petitionAny person interested under a deed, will, contract or other
written instrument, or whose rights are affected by a statute, executive order or regulation,
ordinance, or other governmental regulation may, before breach or violation thereof, bring an
action in the appropriate Regional Trial Court to determine any question of construction or
validity arising, and for a declaration of his rights or duties, thereunder.
...
The requisites of a petition for declaratory relief are: (1) there must be a justiciable controversy;
(2) the controversy must be between persons whose interests are adverse; (3) that the party
seeking the relief has a legal interest in the controversy; and (4) that the issue is ripe for judicial
determination.[8]
This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two
Filipino citizens where one later acquired alien citizenship, obtained a divorce decree, and
remarried while in the U.S.A. The interests of the parties are also adverse, as petitioner
representing the State asserts its duty to protect the institution of marriage while respondent, a
private citizen, insists on a declaration of his capacity to remarry. Respondent, praying for relief,
has legal interest in the controversy. The issue raised is also ripe for judicial determination
inasmuch as when respondent remarries, litigation ensues and puts into question the validity of
his second marriage.
Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code apply
to the case of respondent? Necessarily, we must dwell on how this provision had come about in
the first place, and what was the intent of the legislators in its enactment?
Brief Historical Background

On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209,
otherwise known as the Family Code, which took effect on August 3, 1988. Article 26 thereof
states:
All marriages solemnized outside the Philippines in accordance with the laws in force in the
country where they were solemnized, and valid there as such, shall also be valid in this country,
except those prohibited under Articles 35, 37, and 38.
On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227
was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second
paragraph was added to Article 26. As so amended, it now provides:
ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in
the country where they were solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce
is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the
Filipino spouse shall have capacity to remarry under Philippine law. (Emphasis supplied)
On its face, the foregoing provision does not appear to govern the situation presented by the
case at hand. It seems to apply only to cases where at the time of the celebration of the
marriage, the parties are a Filipino citizen and a foreigner. The instant case is one where at the
time the marriage was solemnized, the parties were two Filipino citizens, but later on, the wife
was naturalized as an American citizen and subsequently obtained a divorce granting her
capacity to remarry, and indeed she remarried an American citizen while residing in the U.S.A.
Noteworthy, in the Report of the Public Hearings[9] on the Family Code, the Catholic Bishops
Conference of the Philippines (CBCP) registered the following objections to Paragraph 2 of
Article 26:
1. The rule is discriminatory. It discriminates against those whose spouses are Filipinos who
divorce them abroad. These spouses who are divorced will not be able to re-marry, while the
spouses of foreigners who validly divorce them abroad can.
2. This is the beginning of the recognition of the validity of divorce even for Filipino citizens. For
those whose foreign spouses validly divorce them abroad will also be considered to be validly
divorced here and can re-marry. We propose that this be deleted and made into law only after
more widespread consultation. (Emphasis supplied.)
Legislative Intent
Records of the proceedings of the Family Code deliberations showed that the intent of
Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code
Revision Committee, is to avoid the absurd situation where the Filipino spouse remains married
to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v.
Romillo, Jr.[10] The Van Dorn case involved a marriage between a Filipino citizen and a foreigner.
The Court held therein that a divorce decree validly obtained by the alien spouse is valid in the
Philippines, and consequently, the Filipino spouse is capacitated to remarry under Philippine
law.
Does the same principle apply to a case where at the time of the celebration of the marriage, the
parties were Filipino citizens, but later on, one of them obtains a foreign citizenship by
naturalization?
The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals.[11] In Quita,
the parties were, as in this case, Filipino citizens when they got married. The wife became a
naturalized American citizen in 1954 and obtained a divorce in the same year. The Court therein
hinted, by way of obiter dictum, that a Filipino divorced by his naturalized foreign spouse is no
longer married under Philippine law and can thus remarry.
Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that
Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the
time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes
naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should
likewise be allowed to remarry as if the other party were a foreigner at the time of the
solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice.
Where the interpretation of a statute according to its exact and literal import would lead to
mischievous results or contravene the clear purpose of the legislature, it should be construed
according to its spirit and reason, disregarding as far as necessary the letter of the law. A statute
may therefore be extended to cases not within the literal meaning of its terms, so long as they
come within its spirit or intent.[12]
If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after obtaining a divorce is no longer married
to the Filipino spouse, then the instant case must be deemed as coming within the
contemplation of Paragraph 2 of Article 26.
In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article
26 as follows:
1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner;
and
2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.
The reckoning point is not the citizenship of the parties at the time of the celebration of the
marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse
capacitating the latter to remarry.
In this case, when Ciprianos wife was naturalized as an American citizen, there was still a valid
marriage that has been celebrated between her and Cipriano. As fate would have it, the
naturalized alien wife subsequently obtained a valid divorce capacitating her to remarry. Clearly,
the twin requisites for the application of Paragraph 2 of Article 26 are both present in this case.
Thus Cipriano, the divorced Filipino spouse, should be allowed to remarry.
We are also unable to sustain the OSGs theory that the proper remedy of the Filipino spouse is
to file either a petition for annulment or a petition for legal separation. Annulment would be a
long and tedious process, and in this particular case, not even feasible, considering that the
marriage of the parties appears to have all the badges of validity. On the other hand, legal

separation would not be a sufficient remedy for it would not sever the marriage tie; hence, the
legally separated Filipino spouse would still remain married to the naturalized alien spouse.
However, we note that the records are bereft of competent evidence duly submitted by
respondent concerning the divorce decree and the naturalization of respondents wife. It is
settled rule that one who alleges a fact has the burden of proving it and mere allegation is not
evidence.[13]
Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife
was naturalized as an American citizen. Likewise, before a foreign divorce decree can be
recognized by our own courts, the party pleading it must prove the divorce as a fact and
demonstrate its conformity to the foreign law allowing it.[14] Such foreign law must also be proved
as our courts cannot take judicial notice of foreign laws. Like any other fact, such laws must be
alleged and proved.[15] Furthermore, respondent must also show that the divorce decree allows
his former wife to remarry as specifically required in Article 26. Otherwise, there would be no
evidence sufficient to declare that he is capacitated to enter into another marriage.
Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family
Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to allow a Filipino
citizen, who has been divorced by a spouse who had acquired foreign citizenship and remarried,
also to remarry. However, considering that in the present petition there is no sufficient evidence
submitted and on record, we are unable to declare, based on respondents bare allegations that
his wife, who was naturalized as an American citizen, had obtained a divorce decree and had
remarried an American, that respondent is now capacitated to remarry. Such declaration could
only be made properly upon respondents submission of the aforecited evidence in his favor.
ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The
assailed Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the Regional Trial
Court of Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE.
No pronouncement as to costs.
SO ORDERED.
Facts:This is a petition for review on certiorari of the decision and resolution of the Regional
Trial Court of Molave, Zamboaga del Sur, Branch 23, granting respondents petition for authority
to remarry invoking par. 2 of Article 26 of the Family Code.
On May 24, 1981, Cipriano Orbecido III and Lady Myros Villanueva were married in Lam-an,
Ozamis City and were blessed with a son and a daughter. In 1986, Lady Myros left for the U. S.
bringing along their son and after a few years she was naturalized as an American citizen.
Sometime in 2000, respondent Orbecido learned from his son who was living with his wife in
the States that his wife had remarried after obtaining her divorce decree. Thereafter, he filed a
petition for authority to remarry with the trial court invoking par. 2 of Art. 26 of the Family Code.
Having no opposition, on May 15, 2002, the Regional Trial Court of Zamboanga del Sur granted
the petition of the respondent and allowed him to remarry.
The Solicitor Generals motion for reconsideration was denied. In view of that, petitioner filed this
petition for review on certiorari of the Decision of the Regional Trial Court. Herein petitioner
raised the issue of the applicability of Art. 26 par. 2 to the instant case.
Issue: WHETHER OR NOT RESPONDENT CAN REMARRY UNDER THE ARTICLE 26 OF
THE FAMILY CODE OF THE PHILIPPINES.
Held: Respondent Orbecido who has the burden of proof, failed to submit competent evidence
showing his allegations that his naturalized American wife had obtained a divorce decree and
had remarried. Therefore, the Petition of the Republic of the Philippines is GRANTED. The
Decision and Resolution of the RTC Br. 32 of Molave, Zamboanga del Sur is hereby SET
ASIDE.
Art. 26 (2) Where a marriage between a Filipino citizen and a foreigner is validly celebrated and
a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall have capacity to remarry under the Philippine laws.
Article 26 par. 2 of the Family Code only applies to case where at the time of the celebration of
the marriage, the parties are a Filipino citizen and a foreigner. The instant case is one where at
the time the marriage was solemnized, the parties were two Filipino citizens, but later on, the
wife was naturalized as an American citizen and subsequently obtained a divorce granting her
capacity to remarry, and indeed she remarried an American citizen while residing in the U. S. A.
Therefore, the 2nd par. of Art. 26 does not apply to the instant case.
However, the legislative intent must be taken into consideration and rule of reason must be
applied. The Supreme Court ruled that par. 2 of Art. 26 should be construed and interpreted to
include cases involving parties who, at the time of the celebration of the marriage were Filipino
citizens, but later on, one of then becomes naturalized as a foreign citizen and obtains a divorce
decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a
foreigner at the time of the solemnization of the marriage. To rule otherwise would be sanction
absurdity and injustice. Were the interpretation of a statute according to its exact and literal
import would lead to mischievous results or contravene the clear purpose of the legislature, it
should be construed according to its spirit and reason, disregarding as far as necessary the
letter of the law. A stature may therefore be extended to case not within the literal meaning of its
terms, so long as they come within its spirits or intent.
GERBERT R. CORPUZ, Petitioner, vs. DAISYLYN TIROL STO. TOMAS and The SOLICITOR
GENERAL, Respondents.
D E C I S I O N BRION, J.: Before the Court is a direct appeal from the decision1 of the
Regional Trial Court (RTC) of Laoag City, Branch 11, elevated via a petition for review on
certiorari2 under Rule 45 of the Rules of Court (present petition).
Petitioner Gerbert R. Corpuz was a former Filipino citizen who acquired Canadian citizenship
through naturalization on November 29, 2000.3 On January 18, 2005, Gerbert married
respondent Daisylyn T. Sto. Tomas, a Filipina, in Pasig City.4 Due to work and other professional
commitments, Gerbert left for Canada soon after the wedding. He returned to the Philippines
sometime in April 2005 to surprise Daisylyn, but was shocked to discover that his wife was
having an affair with another man. Hurt and disappointed, Gerbert returned to Canada and filed
a petition for divorce. The Superior Court of Justice, Windsor, Ontario, Canada granted

Gerberts petition for divorce on December 8, 2005. The divorce decree took effect a month
later, on January 8, 2006.5
Two years after the divorce, Gerbert has moved on and has found another Filipina to love.
Desirous of marrying his new Filipina fiance in the Philippines, Gerbert went to the Pasig City
Civil Registry Office and registered the Canadian divorce decree on his and Daisylyns marriage
certificate. Despite the registration of the divorce decree, an official of the National Statistics
Office (NSO) informed Gerbert that the marriage between him and Daisylyn still subsists under
Philippine law; to be enforceable, the foreign divorce decree must first be judicially recognized
by a competent Philippine court, pursuant to NSO Circular No. 4, series of 1982. 6
Accordingly, Gerbert filed a petition for judicial recognition of foreign divorce and/or declaration
of marriage as dissolved (petition) with the RTC. Although summoned, Daisylyn did not file any
responsive pleading but submitted instead a notarized letter/manifestation to the trial court. She
offered no opposition to Gerberts petition and, in fact, alleged her desire to file a similar case
herself but was prevented by financial and personal circumstances. She, thus, requested that
she be considered as a party-in-interest with a similar prayer to Gerberts.
In its October 30, 2008 decision,7 the RTC denied Gerberts petition. The RTC concluded that
Gerbert was not the proper party to institute the action for judicial recognition of the foreign
divorce decree as he is a naturalized Canadian citizen. It ruled that only the Filipino spouse can
avail of the remedy, under the second paragraph of Article 26 of the Family Code, 8 in order for
him or her to be able to remarry under Philippine law.9 Article 26 of the Family Code reads:
Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in
the country where they were solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce
is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the
Filipino spouse shall likewise have capacity to remarry under Philippine law.
This conclusion, the RTC stated, is consistent with the legislative intent behind the enactment of
the second paragraph of Article 26 of the Family Code, as determined by the Court in Republic
v. Orbecido III;10 the provision was enacted to "avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married
to the Filipino spouse."11
THE PETITION From the RTCs ruling,12 Gerbert filed the present petition.13
Gerbert asserts that his petition before the RTC is essentially for declaratory relief, similar to that
filed in Orbecido; he, thus, similarly asks for a determination of his rights under the second
paragraph of Article 26 of the Family Code. Taking into account the rationale behind the second
paragraph of Article 26 of the Family Code, he contends that the provision applies as well to the
benefit of the alien spouse. He claims that the RTC ruling unduly stretched the doctrine in
Orbecido by limiting the standing to file the petition only to the Filipino spouse an interpretation
he claims to be contrary to the essence of the second paragraph of Article 26 of the Family
Code. He considers himself as a proper party, vested with sufficient legal interest, to institute the
case, as there is a possibility that he might be prosecuted for bigamy if he marries his Filipina
fiance in the Philippines since two marriage certificates, involving him, would be on file with the
Civil Registry Office. The Office of the Solicitor General and Daisylyn, in their respective
Comments,14 both support Gerberts position.
Essentially, the petition raises the issue of whether the second paragraph of Article 26 of the
Family Code extends to aliens the right to petition a court of this jurisdiction for the recognition of
a foreign divorce decree.
THE COURTS RULING The alien spouse can claim no right under the second paragraph of
Article 26 of the Family Code as the substantive right it establishes is in favor of the Filipino
spouse
The resolution of the issue requires a review of the legislative history and intent behind the
second paragraph of Article 26 of the Family Code.
The Family Code recognizes only two types of defective marriages void15 and
voidable16 marriages. In both cases, the basis for the judicial declaration of absolute nullity or
annulment of the marriage exists before or at the time of the marriage. Divorce, on the other
hand, contemplates the dissolution of the lawful union for cause arising after the marriage. 17 Our
family laws do not recognize absolute divorce between Filipino citizens. 18
Recognizing the reality that divorce is a possibility in marriages between a Filipino and an alien,
President Corazon C. Aquino, in the exercise of her legislative powers under the Freedom
Constitution,19 enacted Executive Order No. (EO) 227, amending Article 26 of the Family Code
to its present wording, as follows:
Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in
the country where they were solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce
is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the
Filipino spouse shall likewise have capacity to remarry under Philippine law.
Through the second paragraph of Article 26 of the Family Code, EO 227 effectively incorporated
into the law this Courts holding in Van Dorn v. Romillo, Jr.20 and Pilapil v. Ibay-Somera.21 In both
cases, the Court refused to acknowledge the alien spouses assertion of marital rights after a
foreign courts divorce decree between the alien and the Filipino. The Court, thus, recognized
that the foreign divorce had already severed the marital bond between the spouses. The Court
reasoned in Van Dorn v. Romillo that:
To maintain x x x that, under our laws, [the Filipino spouse] has to be considered still married to
[the alien spouse] and still subject to a wife's obligations x x x cannot be just. [The Filipino
spouse] should not be obliged to live together with, observe respect and fidelity, and render
support to [the alien spouse]. The latter should not continue to be one of her heirs with possible
rights to conjugal property. She should not be discriminated against in her own country if the
ends of justice are to be served.22
As the RTC correctly stated, the provision was included in the law "to avoid the absurd situation
where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is
no longer married to the Filipino spouse."23 The legislative intent is for the benefit of the Filipino

spouse, by clarifying his or her marital status, settling the doubts created by the divorce decree.
Essentially, the second paragraph of Article 26 of the Family Code provided the Filipino spouse
a substantive right to have his or her marriage to the alien spouse considered as dissolved,
capacitating him or her to remarry.24 Without the second paragraph of Article 26 of the Family
Code, the judicial recognition of the foreign decree of divorce, whether in a proceeding instituted
precisely for that purpose or as a related issue in another proceeding, would be of no
significance to the Filipino spouse since our laws do not recognize divorce as a mode of
severing the marital bond;25 Article 17 of the Civil Code provides that the policy against absolute
divorces cannot be subverted by judgments promulgated in a foreign country. The inclusion of
the second paragraph in Article 26 of the Family Code provides the direct exception to this rule
and serves as basis for recognizing the dissolution of the marriage between the Filipino spouse
and his or her alien spouse.
Additionally, an action based on the second paragraph of Article 26 of the Family Code is not
limited to the recognition of the foreign divorce decree. If the court finds that the decree
capacitated the alien spouse to remarry, the courts can declare that the Filipino spouse is
likewise capacitated to contract another marriage. No court in this jurisdiction, however, can
make a similar declaration for the alien spouse (other than that already established by the
decree), whose status and legal capacity are generally governed by his national law. 26
Given the rationale and intent behind the enactment, and the purpose of the second paragraph
of Article 26 of the Family Code, the RTC was correct in limiting the applicability of the provision
for the benefit of the Filipino spouse. In other words, only the Filipino spouse can invoke the
second paragraph of Article 26 of the Family Code; the alien spouse can claim no right under
this provision.
The foreign divorce decree is presumptive evidence of a right that clothes the party with legal
interest to petition for its recognition in this jurisdiction
We qualify our above conclusion i.e., that the second paragraph of Article 26 of the Family
Code bestows no rights in favor of aliens with the complementary statement that this
conclusion is not sufficient basis to dismiss Gerberts petition before the RTC. In other words,
the unavailability of the second paragraph of Article 26 of the Family Code to aliens does not
necessarily strip Gerbert of legal interest to petition the RTC for the recognition of his foreign
divorce decree. The foreign divorce decree itself, after its authenticity and conformity with the
aliens national law have been duly proven according to our rules of evidence, serves as a
presumptive evidence of right in favor of Gerbert, pursuant to Section 48, Rule 39 of the Rules
of Court which provides for the effect of foreign judgments. This Section states:
SEC. 48. Effect of foreign judgments or final orders.The effect of a judgment or final order of a
tribunal of a foreign country, having jurisdiction to render the judgment or final order is as
follows:
(a) In case of a judgment or final order upon a specific thing, the judgment or final order is
conclusive upon the title of the thing; and
(b) In case of a judgment or final order against a person, the judgment or final order is
presumptive evidence of a right as between the parties and their successors in interest by a
subsequent title.
In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction,
want of notice to the party, collusion, fraud, or clear mistake of law or fact.
To our mind, direct involvement or being the subject of the foreign judgment is sufficient to clothe
a party with the requisite interest to institute an action before our courts for the recognition of the
foreign judgment. In a divorce situation, we have declared, no less, that the divorce obtained by
an alien abroad may be recognized in the Philippines, provided the divorce is valid according to
his or her national law.27
The starting point in any recognition of a foreign divorce judgment is the acknowledgment that
our courts do not take judicial notice of foreign judgments and laws. Justice Herrera explained
that, as a rule, "no sovereign is bound to give effect within its dominion to a judgment rendered
by a tribunal of another country."28 This means that the foreign judgment and its authenticity
must be proven as facts under our rules on evidence, together with the aliens applicable
national law to show the effect of the judgment on the alien himself or herself.29 The recognition
may be made in an action instituted specifically for the purpose or in another action where a
party invokes the foreign decree as an integral aspect of his claim or defense.
In Gerberts case, since both the foreign divorce decree and the national law of the alien,
recognizing his or her capacity to obtain a divorce, purport to be official acts of a sovereign
authority, Section 24, Rule 132 of the Rules of Court comes into play. This Section requires
proof, either by (1) official publications or (2) copies attested by the officer having legal custody
of the documents. If the copies of official records are not kept in the Philippines, these must be
(a) accompanied by a certificate issued by the proper diplomatic or consular officer in the
Philippine foreign service stationed in the foreign country in which the record is kept and (b)
authenticated by the seal of his office.
The records show that Gerbert attached to his petition a copy of the divorce decree, as well as
the required certificates proving its authenticity,30 but failed to include a copy of the Canadian
law on divorce.31 Under this situation, we can, at this point, simply dismiss the petition for
insufficiency of supporting evidence, unless we deem it more appropriate to remand the case to
the RTC to determine whether the divorce decree is consistent with the Canadian divorce law.
We deem it more appropriate to take this latter course of action, given the Article 26 interests
that will be served and the Filipina wifes (Daisylyns) obvious conformity with the petition. A
remand, at the same time, will allow other interested parties to oppose the foreign judgment and
overcome a petitioners presumptive evidence of a right by proving want of jurisdiction, want of
notice to a party, collusion, fraud, or clear mistake of law or fact. Needless to state, every
precaution must be taken to ensure conformity with our laws before a recognition is made, as
the foreign judgment, once recognized, shall have the effect of res judicata32 between the
parties, as provided in Section 48, Rule 39 of the Rules of Court.33
In fact, more than the principle of comity that is served by the practice of reciprocal recognition
of foreign judgments between nations, the res judicata effect of the foreign judgments of divorce
serves as the deeper basis for extending judicial recognition and for considering the alien
spouse bound by its terms. This same effect, as discussed above, will not obtain for the Filipino

spouse were it not for the substantive rule that the second paragraph of Article 26 of the Family
Code provides.
Considerations beyond the recognition of the foreign divorce decree
As a matter of "housekeeping" concern, we note that the Pasig City Civil Registry Office has
already recorded the divorce decree on Gerbert and Daisylyns marriage certificate based on the
mere presentation of the decree.34We consider the recording to be legally improper; hence, the
need to draw attention of the bench and the bar to what had been done.
Article 407 of the Civil Code states that "[a]cts, events and judicial decrees concerning the civil
status of persons shall be recorded in the civil register." The law requires the entry in the civil
registry of judicial decrees that produce legal consequences touching upon a persons legal
capacity and status, i.e., those affecting "all his personal qualities and relations, more or less
permanent in nature, not ordinarily terminable at his own will, such as his being legitimate or
illegitimate, or his being married or not."35
A judgment of divorce is a judicial decree, although a foreign one, affecting a persons legal
capacity and status that must be recorded. In fact, Act No. 3753 or the Law on Registry of Civil
Status specifically requires the registration of divorce decrees in the civil registry:
Sec. 1. Civil Register. A civil register is established for recording the civil status of persons, in
which shall be entered:
(a) births; (b) deaths; (c) marriages; (d) annulments of marriages; (e) divorces;(f) legitimations;
(g) adoptions; (h) acknowledgment of natural children; (i) naturalization; and (j) changes of
name.
xxxx
Sec. 4. Civil Register Books. The local registrars shall keep and preserve in their offices the
following books, in which they shall, respectively make the proper entries concerning the civil
status of persons:
(1) Birth and death register;
(2) Marriage register, in which shall be entered not only the marriages solemnized but also
divorces and dissolved marriages.
(3) Legitimation, acknowledgment, adoption, change of name and naturalization register.
But while the law requires the entry of the divorce decree in the civil registry, the law and the
submission of the decree by themselves do not ipso facto authorize the decrees registration.
The law should be read in relation with the requirement of a judicial recognition of the foreign
judgment before it can be given res judicata effect. In the context of the present case, no judicial
order as yet exists recognizing the foreign divorce decree. Thus, the Pasig City Civil Registry
Office acted totally out of turn and without authority of law when it annotated the Canadian
divorce decree on Gerbert and Daisylyns marriage certificate, on the strength alone of the
foreign decree presented by Gerbert.
Evidently, the Pasig City Civil Registry Office was aware of the requirement of a court
recognition, as it cited NSO Circular No. 4, series of 1982,36 and Department of Justice Opinion
No. 181, series of 198237 both of which required a final order from a competent Philippine
court before a foreign judgment, dissolving a marriage, can be registered in the civil registry, but
it, nonetheless, allowed the registration of the decree. For being contrary to law, the registration
of the foreign divorce decree without the requisite judicial recognition is patently void and cannot
produce any legal effect.1avvphi1
Another point we wish to draw attention to is that the recognition that the RTC may extend to the
Canadian divorce decree does not, by itself, authorize the cancellation of the entry in the civil
registry. A petition for recognition of a foreign judgment is not the proper proceeding,
contemplated under the Rules of Court, for the cancellation of entries in the civil registry.
Article 412 of the Civil Code declares that "no entry in a civil register shall be changed or
corrected, without judicial order." The Rules of Court supplements Article 412 of the Civil Code
by specifically providing for a special remedial proceeding by which entries in the civil registry
may be judicially cancelled or corrected. Rule 108 of the Rules of Court sets in detail the
jurisdictional and procedural requirements that must be complied with before a judgment,
authorizing the cancellation or correction, may be annotated in the civil registry. It also requires,
among others, that the verified petition must be filed with the RTC of the province where the
corresponding civil registry is located;38that the civil registrar and all persons who have or claim
any interest must be made parties to the proceedings;39and that the time and place for hearing
must be published in a newspaper of general circulation.40 As these basic jurisdictional
requirements have not been met in the present case, we cannot consider the petition Gerbert
filed with the RTC as one filed under Rule 108 of the Rules of Court.
We hasten to point out, however, that this ruling should not be construed as requiring two
separate proceedings for the registration of a foreign divorce decree in the civil registry one for
recognition of the foreign decree and another specifically for cancellation of the entry under Rule
108 of the Rules of Court. The recognition of the foreign divorce decree may be made in a Rule
108 proceeding itself, as the object of special proceedings (such as that in Rule 108 of the Rules
of Court) is precisely to establish the status or right of a party or a particular fact. Moreover, Rule
108 of the Rules of Court can serve as the appropriate adversarial proceeding41 by which the
applicability of the foreign judgment can be measured and tested in terms of jurisdictional
infirmities, want of notice to the party, collusion, fraud, or clear mistake of law or fact.
WHEREFORE, we GRANT the petition for review on certiorari, and REVERSE the October 30,
2008 decision of the Regional Trial Court of Laoag City, Branch 11, as well as its February 17,
2009 order. We order the REMAND of the case to the trial court for further proceedings in
accordance with our ruling above. Let a copy of this Decision be furnished the Civil Registrar
General. No costs. SO ORDERED.
Corpuz vs. Sto. Tomas Case Digest G.R. No. 186571, August 11, 2010
FACTS: Gerbert Corpuz, a former Filipino citizen but now a naturalized Canadian, married
Daisylyn Sto. Tomas, a Filipina. He soon left to Canada after their wedding due to work
commitments. He returned to Philippines on April 2005 only to find out Daisylyn has an affair
with another man. Gerbert returned to Canada to file a divorce that took effect on January 2006.
Two years later, he found another Filipina and wanted to marry her in the Philippines. He went to
Pasig City Registrar's Office to register his Canadian divorce decree but was denied considering

that his marriage with Daisylyn still subsists under Philippine law, that the foregin divorce must
be recognized judicially by the Philippine court.
Gerbert subsequently filed at the Regional Trial Court a judicial recognition of foreign divorce but
was subsequently denied since he is not the proper party and according to Article 26 of the Civil
Code, only a Filipino spouse can avail the remedy.
ISSUE: Whether or not Article 26 can also be applied to Corpuz' petition of recognition of the
foreign divorce decree
HELD: The Court held that alien spouses cannot claim the right as it is only in favor of Filipino
spouses. The legislative intent of Article 26 is for the benefit of the clarification of the marital
status of the Filipino spouse.
However, aliens are not strip to petition to the RTC for his foreign divorce decree as it is a
conclusive presumption of evidence of the authenticity of foreign divorce decree with confirmity
to the alien's national law.
The Pasig City Registrar's Office acted out of line when it registered the foreign divorce decree
without judicial order recognition. Therefore, the registration is still deemed to be void.
FACTS:This is a petition for review on certiorari seeking a direct appeal from the decision of the
Regional Trial Court of Laoag City. Petitioner Gerbert R. Corpus is a naturalized Canadian
citizen who married respondent Daisylyn Tirol Sto. Tomas but subsequently left for Canada due
to work and other professional commitments. When he returned to the Philippines, he
discovered that Sto. Tomas was already romantically involved with another man. This brought
about the filing of a petition for divorce by Corpuz in Canada which was eventually granted by
the Court Justice of Windsor, Ontario, Canada. A month later, the divorce decree took effect.
Two years later, Corpuz has fallen in love with another Filipina and wished to marry her. He went
to Civil Registry Office of Pasig City to register the Canadian divorce decree of his marriage
certificate with Sto. Tomas. However, despite the registration, an official of National Statistics
Office informed Corpuz that the former marriage still subsists under the Philippine law until there
has been a judicial recognition of the Canadian divorce by a competent judicial court in view of
NSO Circular No. 4, series of 1982. Consequently, he filed a petition for judicial recognition of
foreign divorce and/or declaration of dissolution of marriage with the RTC. However, the RTC
denied the petition reasoning out that Corpuz cannot institute the action for judicial recognition of
the foreign divorce decree because he is a naturalized Canadian citizen. It was provided further
that Sto. Tomas was the proper party who can institute an action under the principle of Article 26
of the Family Code which capacitates a Filipino citizen to remarry in case the alien spouse
obtains a foreign divorce decree.
ISSUE: Whether or not the second paragraph of Article 26 of the Family Code grants aliens like
Corpuz the right to institute a petition for judicial recognition of a foreign divorce decree.
RULING: Petition GRANTED. RTC Decision REVERSED.
The foreign divorce decree is presumptive evidence of a right that clothes the party with legal
interest to petition for its recognition in this jurisdiction
The second paragraph of Article 26 of the Family Code bestows no rights in favor of aliens
with the complementary statement that this conclusion is not sufficient basis to dismiss Gerberts
petition before the RTC. In other words, the unavailability of the second paragraph of Article 26
of the Family Code to aliens does not necessarily strip Gerbert of legal interest to petition the
RTC for the recognition of his foreign divorce decree. The foreign divorce decree itself, after its
authenticity and conformity with the aliens national law have been duly proven according to our
rules of evidence, serves as a presumptive evidence of right in favor of Gerbert, pursuant to
Section 48, Rule 39 of the Rules of Court which provides for the effect of foreign judgments.
A remand, at the same time, will allow other interested parties to oppose the foreign judgment
and overcome a petitioners presumptive evidence of a right by proving want of jurisdiction, want
of notice to a party, collusion, fraud, or clear mistake of law or fact. Needless to state, every
precaution must be taken to ensure conformity with our laws before a recognition is made, as
the foreign judgment, once recognized, shall have the effect of res judicata between the parties,
as provided in Section 48, Rule 39 of the Rules of Court.
VIII. B. Muslim Divorces Code of muslim personal laws
Case
HATIMA C. YASIN, represented by her Attorney-in-Fact, HADJI HASAN S. CENTI,
petitioner, vs. THE HONORABLE JUDGE SHARI'A DISTRICT COURT THIRD SHARI'A
JUDICIAL DISTRICT, Zamboanga City,respondent.
R E S O L U T I O N BIDIN, J.: On May 5, 1990, Hatima C. Yasin filed in the Shari'a District
Court in Zamboanga City a "Petition to resume the use of maiden name" (Sp. Proc. No. 06-3).
The petition reads:
1. That she is of legal age, a divorcee, a Muslin Filipino and a resident of Suterville, Zamboanga
City, Philippines, and is duly represented in this act by her elder brother and attorney-in-fact,
HADJI HASAN S. CENTI by virtue of an instrument of a Special Power of Attorney, original copy
of which is hereto attached and marked as Annex "A" hereof;
2. That she was formerly married to a certain Hadji Idris Yasin, also a Muslim Filipino in
accordance with Muslim rites and customs, and who is now residing at Barangay Recodo,
Zamboanga City, but sometime on March 13, 1984, they were granted a decree of divorce by
the Mindanao Islamic Center Foundation, Inc., in accordance with Islamic Law, the divorce rites
was officiated by Ustadz Sharif Jain Jali as evidenced by his Certification, dated march 13,
1984, copy of which is hereto attached as Annex "B" to form an integral part hereof;
3. That, thereafter the former husband Hadji Idris Yasin contracted another marriage to another
woman;
WHEREFORE, invoking the provisions of Article 143, par. 1(c) of Presidential Decree No. 1083
in relation to Article 371 (2) of the New Civil Code, and after due notice and hearing, it is most
respectfully prayed of this Honorable Court that petitioner be allowed to resume the use of her
maiden name Hatima Centi y Saul.
On July 4, 1990, the respondent court issued an order which reads as follows:
It patently appearing that the petition filed is not sufficient in form and substance in accordance
with Section 2(a) and 3, Rule 103, Rules of Court, regarding the residence of petitioner and the
name sought to be adopted is not properly indicated in the title thereof which should include all

the names by which the petitioner has been known (Ng Yao Siong v. Republic of the Philippines,
L-20306, March 31, 1966, 16 SCRA [483]; Go v. Republic of the Philippines, L-31760, May 25,
1977; Pabellar v. Republic, L-27298, march 4, 1976), the pleading must be rectified accordingly.
WHEREFORE, petitioner is hereby ordered to effect the necessary amendment of the petition
within one (1) week from receipt hereof so as to reflect the formal requirements adverted to.
(Rollo, p. 9)
Hatima filed a motion for reconsideration of the aforesaid order alleging that the petition filed is
not covered by Rule 103 of the Rules of Court but is merely a petition to resume the use of her
maiden name and surname after the dissolution of her marriage by divorce under the Code of
Muslim Personal Laws of the Philippines (P.D. No. 1083), and after marriage of her former
husband to another woman.
The motion was denied by the respondent court in an order dated August 10, 1990, on the
ground that the petition is substantially for change of name and that compliance with the
provisions of Rule 103, Rules of Court on change of name is necessary if the petition is to be
granted as it would result in the resumption of the use of petitioner's maiden name and
surname.
Hence, this petition alleging that respondent court erred in applying Rule 103 of the Rules of
Court to the instant case.
In his Comment dated June 14, 1991, the respondent court, among others, contends:
5. . . . (R)espondent court is of the honest opinion that the said petition is substantially one for
change of name, particularly of surname Hatima C. Yasin to Hatima Centi y Saul, the latter
being her maiden name and surname. Her reasons: The (1) dissolution of her marriage, and (2)
her legal right to resume the use of her maiden name and surname. In effect, if petition is
granted, it will result in the resumption of the use of her surname.
Moreover, the use of surnames is governed by law (Arts. 364-380, Title XIII, New Civil Code).
This is the substantive requirements. And as to procedural requirements, no person can change
his name orsurname without judicial authority (Art. 376, Civil Code of the Philippines) (Emphasis
supplied). Change of name under judicial authorization is governed by Rule 103 of the Revised
Rules of Court. Under Sec. 1 of said rule: "a person desiring to change his name shall present
the petition to the Court of First Instance of the province (now RTC) in which he resides, or in
the City of Manila, to the Juvenile and Domestic Relations Court." The State has an interest in
the names borne by individual and entities for purposes of identification. A change of name is a
privilege and not a matter of right. Therefore, before a person can be authorized to change his
name (given him either in his birth certificate or civil registry), he must show proper or
compelling reason, which may justify such change. Otherwise, the request should be denied
(Ong Peng Oan v. Republic, 102 Phil. 468) (See: Paras, Civil Code of the Philippines Annotated,
Vol. I, 8th Ed., 1978, pp. 739-740). (Rollo, pp. 46-47)
The basic issue to be resolved is: whether or not in the case of annulment of marriage, or
divorce under the Code of Muslim Personal Laws of the Philippines, and the husband is married
again to another woman and the former desires to resume her maiden name or surname, is she
required to file a petition for change of name and comply with the formal requirements of Rule
103 of the Rules of Court.
Stated otherwise, the issue is: whether or not a petition for resumption of maiden name and
surname is also a petition for change of name.
The Court rules in the negative.
The true and real name of a person is that given to him and entered in the civil register (Chomi
v. Local Civil Register of Manila, 99 Phil. 1004 [1956]; Ng Yao Siong v. Republic, 16 SCRA 483
[1966]; Rendora v. Republic, 35 SCRA 262 [1970]; Pabellar v. Republic, 70 SCRA 16 [1976]).
While it is true that under Article 376 of the Civil Code, no person can change his name or
surname without judicial authority, nonetheless, the only name that may be changed is the true
and official name recorded in the Civil Register. Thus, this Court in Ng Yao Siong v. Republic (16
SCRA 483 [1966]), held:
In a proceeding for a change of name the following question may crop up: What is the name to
be changed? By Article 408 of the Civil Code a person's birth must be entered in the civil
register. So it is, that the civil register records his name. That name in the civil register, for legal
purposes, is his real name. And correctly so, because the civil register is an official record of the
civil status of persons. A name given to a person in the church record or elsewhere or by which
he is known in the community when at variance with that entered in the civil register is
unofficial and cannot be recognized as his real name.
We therefore rule that for the purposes of an application for change of name under Article 376 of
the Civil Code, the only name that may be changed is the true or official name recorded in the
civil register.
Petitioner's registered name is Hatima Centi Y. Saul. In the instant petition, petitioner does not
seek to change her registered maiden name but, instead, prays that she be allowed to resume
the use of her maiden name in view of the dissolution of her marriage to Hadji Idris Yasin, by
virtue of a decree of divorce granted in accordance with Muslim law.
Divorce (talaq) is defined in PD 1086, the Code of Muslim Personal Laws of the Philippines, as
follows:
Art. 45. Definition and forms. Divorce is the formal dissolution of the marriage bond in
accordance with this Code to be granted only after exhaustion of all possible means of
reconciliation between the spouses. It may be effected by:
(a) Repudiation of the wife by the husband (talaq);
xxx xxx xxx
(c) Judicial decree ( faskh).
Divorce (talaq or faskh) severs the marriage bond. Thus, Article 54 of PD 1086 provides:
Art. 54. Effects of irrevocable talaq or faskh. A talaq or faskh, as soon as it become
irrevocable, shall have the following effects:
(a) The marriage bond shall be severed and the spouses may contract another marriage in
accordance with this Code;
The divorce becomes irrevocable after observance of a period of waiting called idda (Art. 56, PD
1086) the duration of which is 3 monthly courses after termination of the marriage by divorce
(Art. 57[b], PD 1083). Under Article 187, PD 1083, the Civil Code of the Philippines, the Rules of

Court and other existing laws, insofar as they are not inconsistent with the provisions of this
Code (the Code of Muslim Personal Laws), shall be applied suppletorily.
Even under the Civil Code, the use of the husband's surname during the marriage (Art. 370,
Civil Code), after annulment of the marriage (Art. 371, Civil Code) and after the death of the
husband (Art. 373, Civil Code) is permissive and not obligatory except in case of legal
separation (Art. 372, Civil Code). Thus, Articles 370 and 371 of the Civil Code provides:
Art. 370. A married woman may use:
(1) Her maiden first name and surname and add her husband's surname, or
(2) Her maiden first name and her husband's surname, or
(3) Her husband's full name, but prefixing a word indicating that she is his wife, such as "Mrs."
Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her
maiden name and surname. If she is the innocent spouse, she may resume her maiden name
and surname. However, she may choose to continue employing her former husband's surname,
unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to another person.
According to Tolentino:
. . . Under the present article of our Code, however, the word "may" is used, indicating that the
use of the husband's surname by the wife is permissive rather than obligatory. We have no law
which provides that the wife shall change her name to that of the husband upon marriage. This
is in consonance with the principle that surnames indicate descent. It seems, therefore, that a
married woman may use only her maiden name and surname. She has an option, but not a
duty, to use the surname of the husband in any of the ways provided by this Article. (Tolentino,
Civil Code of the Philippines, Vol. I, p. 724, 1983 ed.)
When a woman marries a man, she need not apply and/or seek judicial authority to use her
husband's name by prefixing the word "Mrs." before her husband's full name or by adding her
husband's surname to her maiden first name. The law grants her such right (Art. 370, Civil
Code). Similarly, when the marriage ties or vinculum no longer exists as in the case of death of
the husband or divorce as authorized by the Muslim Code, the widow or divorcee need not seek
judicial confirmation of the change in her civil status in order to revert to her maiden name as the
use of her former husband's name is optional and not obligatory for her (Tolentino, Civil Code, p.
725, 1983 ed.; Art. 373, Civil Code). When petitioner married her husband, she did not change
her name but only her civil status. Neither was she required to secure judicial authority to use
the surname of her husband after the marriage as no law requires it.
In view of the foregoing considerations, We find the petition to resume the use of maiden name
filed by petitioner before the respondent court a superfluity and unnecessary proceeding since
the law requires her to do so as her former husband is already married to another woman after
obtaining a decree of divorce from her in accordance with Muslim laws.
Although there is no legal prohibition against obtaining a judicial confirmation of a legal right,
nevertheless, no law or rule provides for the procedure by which such confirmation may be
obtained. In view of such circumstances, the onerous requirements of Rule 103 of the Rules of
Court on change of name should not be applied to judicial confirmation of the right of a divorced
woman to resume her maiden name and surname. In the absence of a specific rule or provision
governing such a proceeding, where sufficient facts have been alleged supported by competent
proof as annexes, which appear to be satisfactory to the court, such petition for confirmation of
change of civil status and/or to resume the use of maiden name must be given due course and
summarily granted as in fact it is a right conferred by law.
While the petition filed in the instant case leaves much to be desired in matters of form and
averment of concise statements of ultimate facts constituting the petitioner's cause of action,
nevertheless, giving it a most liberal construction, the petition suffices to convey the petitioner's
desire and prayer to resume her maiden surname on grounds of her divorce from her former
husband and subsequent marriage of the latter to another woman.
The remand of this case to the trial court would only delay the final disposition of this case and
would not serve the public interest. We have consistently ruled that the remand of the case to a
lower court for further reception of evidence is not necessary if this Court can already resolve
the dispute on the basis of the records before it (Dimayuga v. PCIB, 200 SCRA 143 [1991];
Board of Liquidators v. Zulueta, 115 SCRA 548 [1982]: Quisumbing v. CA, 120 SCRA 703
[1983]). WHEREFORE, the petition is GRANTED and the orders of respondent court dated July
4, 1990 and August 10, 1990 are hereby SET ASIDE. Petitioner is authorized to resume her
maiden name and surname. SO ORDERED. Narvasa, C.J., Feliciano, Padilla, Regalado,
Davide, Jr., Bellosillo, Melo, Quiason, Puno, Kapunan, Mendoza, and Francisco, JJ., concur.
FACTS: On May 5, 1990, Hatima C. Yasin filed in the Shari'a District Court in Zamboanga City a
"Petition to resume the use of maiden name. The respondent court ordered amendments to the
petition as it was not sufficient in form and substance in accordance Rule 103, Rules of Court,
regarding the residence of petitioner and the name sought to be adopted is not properly
indicated in the title thereof which should include all the names by which the petitioner has been
known. Hatima filed a motion for reconsideration of the aforesaid order alleging that the petition
filed is not covered by Rule 103 of the Rules of Court but is merely a petition to resume the use
of her maiden name and surname after the dissolution of her marriage by divorce under the
Code of Muslim Personal Laws of the Philippines, and after marriage of her former husband to
another woman. The respondent court denied the motion since compliance to rule 103 is
necessary if the petition is to be granted, as it would result in the resumption of the use of
petitioners maiden name and surname.
ISSUE: Whether or not in the case of annulment of marriage, or divorce under the Code of
Muslim Personal Laws of the Philippines, and the husband is married again to another woman
and the former desires to resume her maiden name or surname, is she required to file a petition
for change of name and comply with the formal requirements of Rule 103 of the Rules of Court.
RULING: NO. When a woman marries a man, she need not apply and/or seek judicial authority
to use her husband's name by prefixing the word "Mrs." before her husband's full name or by
adding her husband's surname to her maiden first name. The law grants her such right (Art. 370,
Civil Code). Similarly, when the marriage ties or vinculum no longer exists as in the case of
death of the husband or divorce as authorized by the Muslim Code, the widow or divorcee need

not seek judicial confirmation of the change in her civil status in order to revert to her maiden
name as the use of her former husband's name is optional and not obligatory for her. When
petitioner married her husband, she did not change her name but only her civil status. Neither
was she required to secure judicial authority to use the surname of her husband after the
marriage, as no law requires it. The use of the husband's surname during the marriage, after
annulment of the marriage and after the death of the husband is permissive and not obligatory
except in case of legal separation.
The court finds the petition to resume the use of maiden name filed by petitioner before the
respondent court a superfluity and unnecessary proceeding since the law requires her to do so
as her former husband is already married to another woman after obtaining a decree of divorce
from her in accordance with Muslim laws.
IX. De Facto Separation Art. 100, 127, 239, 242, 246, 247, FC
Cases
NERISSA Z. PEREZ, petitioner, vs. THE COURT OF APPEALS (Ninth Division) and RAY C.
PEREZ, respondents.
D E C I S I O N ROMERO, J.: Parties herein would have this Court duplicate the feat of King
Solomon who was hailed in Biblical times for his sagacious, if, at times unorthodox, manner of
resolving conflicts, the most celebrated case being that when his authority was invoked to
determine the identity of the real mother as between two women claiming the same infant. Since
there could only be one mother, the daunting task that confronted the king/judge was to choose
the true one.
In the instant case, we are faced with the challenge of deciding, as between father and mother,
who should have rightful custody of a child who bears in his person both their genes.
While there is a provision of law squarely in point, the two courts whose authority have been
invoked to render a decision have arrived at diametrically opposite conclusions.
It has fallen upon us now to likewise act as judge between the trial court, on the one hand, and
the appellate, on the other.
On the issue of custody over the minor Ray Perez II, respondent Court of Appeals ruled in favor
of the boys father Ray C. Perez, reversing the trial courts decision to grant custody to Nerissa Z.
Perez, the childs mother.
Ray Perez, private respondent, is a doctor of medicine practicing in Cebu while Nerissa, his wife
who is petitioner herein, is a registered nurse. They were married in Cebu on December 6,
1986. After six miscarriages, two operations and a high-risk pregnancy, petitioner finally gave
birth to Ray Perez II in New York on July 20, 1992.
Petitioner who began working in the United States in October 1988, used part of her earnings to
build a modest house in Mandaue City, Cebu. She also sought medical attention for her
successive miscarriages in New York. She became a resident alien in February 1992.
Private respondent stayed with her in the U.S. twice and took care of her when she became
pregnant. Unlike his wife, however, he had only a tourist visa and was not employed.
On January 17, 1993, the couple and their baby arrived in Cebu. After a few weeks, only
Nerissa returned to the U.S. She alleged that they came home only for a five-week vacation and
that they all had round-trip tickets. However, her husband stayed behind to take care of his sick
mother and promised to follow her with the baby. According to Ray, they had agreed to reside
permanently in the Philippines but once Nerissa was in New York, she changed her mind and
continued working.She was supposed to come back immediately after winding up her affairs
there.
When Nerissa came home a few days before Ray IIs first birthday, the couple was no longer on
good terms. That their love for each other was fading became apparent from their serious
quarrels. Petitioner did not want to live near her in-laws and rely solely on her husbands meager
income of P5,000.00.1 She longed to be with her only child but he was being kept away from her
by her husband. Thus, she did not want to leave RJ (Ray Junior) with her husband and inlaws. She wished for her son to grow up with his mother.
On the other hand, Ray wanted to stay here, where he could raise his son even as he practiced
his profession. He maintained that it would not be difficult to live here since they have their own
home and a car. They could live comfortably on his P 15,000.00 monthly income2 as they were
not burdened with having to pay any debts.
Petitioner was forced to move to her parents home on Guizo Street in Mandaue. Despite
mediation by the priest who solemnized their marriage, the couple failed to reconcile.
On July 26, 1993, Nerissa Z. Perez filed a petition for habeas corpus3 asking respondent Ray C.
Perez to surrender the custody of their son, Ray Z. Perez II, to her.
On August 27, 1993, the court a quo issued an Order awarding custody of the one-year old child
to his mother, Nerissa Perez, citing the second paragraph of Article 213 of the Family Code
which provides that no child under seven years of age shall be separated from the mother,
unless the court finds compelling reasons to order otherwise. The dispositive portion of the
Order reads:
WHEREFORE, foregoing premises considered, Order is hereby issued ordering the respondent
to turn over the custody of their child Ray Cortes Perez II, his passport and roundtrip ticket to
herein petitioner with a warning that if he will escape together with the child for the purpose of
hiding the minor child instead of complying with this Order, that warrant for his arrest will be
issued.
SO ORDERED.4
Upon appeal by Ray Perez, the Court of Appeals, on September 27, 1994, reversed the trial
courts order and awarded custody of the boy to his father.5
Petitioners motion for reconsideration having been denied,6 she filed the instant petition for
review where the sole issue is the custody of Ray Perez II, now three years old.
Respondent court differed in opinion from the trial court and ruled that there were enough
reasons to deny Nerissa Perez custody over Ray II even if the child is under seven years old. It
held that granting custody to the boys father would be for the childs best interest and welfare.7
Before us is the unedifying situation of a husband and wife in marital discord, struggling for
custody of their only child. It is sad that petitioner and private respondent have not found it in

their hearts to understand each other and live together once again as a family. Separated in fact,
they now seek the Courts assistance in the matter of custody or parental authority over the child.
The wisdom and necessity for the exercise of joint parental authority need not be
belabored. The father and the mother complement each other in giving nurture and providing
that holistic care which takes into account the physical, emotional, psychological, mental, social
and spiritual needs of the child. By precept and example, they mold his character during his
crucial formative years.
However, the Courts intervention is sought in order that a decision may be made as to which
parent shall be given custody over the young boy. The Courts duty is to determine whether Ray
Perez II will be better off with petitioner or with private respondent. We are not called upon to
declare which party committed the greater fault in their domestic quarrel.
When the parents of the child are separated, Article 213 of the Family Code is the applicable
law. It 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. (Italics supplied)
Since the Code does not qualify the word separation to mean legal separation decreed by a
court, couples who are separated in fact, such as petitioner and private respondent, are covered
within its terms.8
The Revised Rules of Court also contains a similar provision. Rule 99, Section 6 (Adoption and
Custody of Minors) provides:
SEC. 6. Proceedings as to child whose parents are separated. Appeal. - When husband and
wife are divorced or living separately and apart from each other, and the questions 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 the
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 chosen be unfit to take charge of the child by reason
of moral depravity, habitual drunkenness, incapacity, or poverty x x x. No child under seven
years of age shall be separated from its mother, unless the court finds there are compelling
reasons therefor. (Italics supplied)
The provisions of law quoted above clearly mandate that a child under seven years of age shall
not be separated from his mother unless the court finds compelling reasons to order
otherwise. The use of the word shall in Article 213 of the Family Code and Rule 99, Section 6 of
the Revised Rules of Court connotes a mandatory character. In the case of Lacson v. San JoseLacson,9 the Court declared:
The use of the word shall in Article 36310 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.11
The rationale for awarding the custody of children younger than seven years of age to their
mother was explained by the Code Commission:
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 mothers heart is not to be
unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and the
divorce decree (relative divorce) will ordinarily be sufficient punishment for her. Moreover, moral
dereliction will not have any effect upon the baby who is as yet unable to understand her
situation. (Report of the Code Commission, p. 12)12
The Family Code, in reverting to the provision of the Civil Code that a child below seven years
old should not be separated from the mother (Article 363), has expressly repealed the earlier
Article 17, paragraph three of the Child and Youth Welfare Code (Presidential Decree No. 603)
which reduced the childs age to five years.13
The general rule that a child under seven years of age shall not be separated from his mother
finds its raison detre in the basic need of a child for his mothers loving care.14 Only the most
compelling of reasons shall justify the courts awarding the custody of such a child to someone
other than his mother, such as her unfitness to exercise sole parental authority. In the past the
following grounds have been considered ample justification to deprive a mother of custody and
parental authority: neglect, abandonment,15 unemployment and immorality,16 habitual
drunkenness,17 drug addiction, maltreatment of the child, insanity and being sick with a
communicable disease.18
It has long been settled that in custody cases,19 the foremost consideration is always the
Welfare and best interest of the child. In fact, no less than an international instrument, the
Convention on the Rights of the Child provides: 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.20
Courts invariably look into all relevant factors presented by the contending parents, such as their
material resources, social and moral situations.21
In the case at bench, financial capacity is not a determinative factor inasmuch as both parties
have demonstrated that they have ample means.
Respondent court stated that petitioner has no permanent place of work in the U.S.A. and has
taken this point against her. The records, however, show that she is employed in a New
York hospital22 and was, at the time the petition was filed, still abroad.23 She testified that she
intends to apply for a job elsewhere, presumably to improve her work environment and augment
her income, as well as for convenience.24 The Court takes judicial notice of the fact that a
registered nurse, such as petitioner, is still very much in demand in the United States. Unlike
private respondent, a doctor who by his own admission could not find employment there,

petitioner immediately got a job in New York. Considering her skill and experience, petitioner
should find no difficulty in obtaining work elsewhere, should she desire to do so.
The decision under review casts doubt on petitioners capability to take care of the child,
particularly since she works on twelve-hour shifts thrice weekly, at times, even at night. There
being no one to help her look after the child, it is alleged that she cannot properly attend to him.
This conclusion is as unwarranted as it is unreasonable. First, her present work schedule is not
so unmanageable as to deprive her of quality time for Ray II. Quite a number of working mothers
who are away from home for longer periods of time are still able to raise a family well, applying
time management principles judiciously. Second, many a mother, finding herself in such a
position, has invited her own mother or relative to join her abroad, providing the latter with plane
tickets and liberal allowances, to look after the child until he is able to take care of
himself. Others go on leave from work until such time as the child can be entrusted to day-care
centers. Delegating child care temporarily to qualified persons who run day-care centers does
not detract from being a good mother, as long as the latter exercises supervision, for even in our
culture, children are often brought up by housemaids or yayas under the eagle eyes of the
mother. Third, private respondents work schedule was not presented in evidence at the
trial. Although he is a general practitioner, the records merely show that he maintains a clinic,
works for several companies on retainer basis and teaches part-time. 25 Hence, respondent
courts conclusion that his work schedule is flexible (and h)e can always find time for his son26 is
not well-founded. Fourth, the fact that private respondent lives near his parents and sister is not
crucial in this case. Fifth, petitioners work schedule cited in the respondent courts decision is not
necessarily permanent. Hospitals work in shifts and, given a mothers instinctive desire to lavish
upon her child the utmost care, petitioner may be expected to arrange her schedule in such a
way as to allocate time for him. Finally, it does not follow that petitioner values her career more
than her family simply because she wants to work in the United States. There are any number of
reasons for a persons seeking a job outside the country, e.g. to augment her income for the
familys benefit and welfare, and for psychological fulfillment, to name a few. In the instant case,
it has been shown that petitioner earned enough from her job to be able to construct a house for
the family inMandaue City. The record describes sketchily the relations between Ray and
Nerissa Perez. The transcripts of the three hearings are inadequate to show that petitioner did
not exert earnest efforts and make sacrifices to save her marriage.
It is not difficult to imagine how heart-rending it is for a mother whose attempts at having a baby
were frustrated several times over a period of six years to finally bear one, only for the infant to
be snatched from her before he has even reached his first year. The mothers role in the life of
her child, such as Ray II, is well-nigh irreplaceable. In prose and poetry, the depth of a mothers
love has been immortalized times without number, finding as it does, its justification, not in
fantasy but in reality.
WHEREFORE, the petition for review is GRANTED. The decision of the Court of Appeals
dated September 27, 1994 as well as its Resolution dated January 24, 1995 are hereby
REVERSED and SET ASIDE. The Order of the trial court datedAugust 27, 1993 is hereby
REINSTATED. Custody over the minor Ray Z. Perez II is awarded to his mother, herein
petitioner Nerissa Z. Perez. This decision is immediately executory.
SO ORDERED. Regalado (Chairman), Puno, and Mendoza, JJ., concur. Torres, Jr., J., on
leave.
seven years shall not be separated from his mother)
Facts: Respondent father, a doctor of medicine and petitioner mother, a registered nurse
working in the US are married couples who are separated in fact with only one child.
Petitioner filed a petition for habeas corpus asking respondent to surrender the custody of their
son. The RTC issued an Order awarding custody of the one-year old child to his mother, citing
the second paragraph of Article 213 of the Family Code.
Upon appeal by the father, the Court of Appeals reversed the trial courts order and awarded
custody of the boy to him ruling that there were enough reasons to deny petitioner custody over
the child even under seven years old. It held that granting custody to the boys father would be
for the childs best interest and welfare.
Article 213, par 2, provides in case of separation of parents that no child under 7 years of age
shall be separated from the mother, unless the court finds compelling reasons to order
otherwise.
Rule 99, Section 6 of the Revised Rules of Court also states that No child under seven years of
age shall be separated from the mother, unless the court finds there are compelling reasons
therefore.
Issue: WON custody of the child is to be given to the father.
Held: No. The provisions of the law clearly mandate that a child under seven years of age shall
not be separated from his mother unless the court finds compelling reasons to order otherwise.
The use of the word shall in Article 213 of the Family Code and Rule 99, Sec 6 of the Revised
Rules of Court connotes a mandatory character.
Couples who are separated in fact are covered within the term separation.
The Family Code in reverting to the provision of the Civil Code that a child below seven years
old shall not be separated from the mother (Article 363), has expressly repealed the earlier
Article 17, par 3 of the Child and youth Welfare Code which reduced the childs age to 5 years.
ESTRADA VS ESCRITOR A.M. No. P-02-1651, August 4, 2003
FACTS: Complainant Alejandro Estrada wrote to Judge Jose F. Caoibes, Jr., requesting for an
investigation of rumors that respondent Soledad Escritor, court interpreter, is living with a man
not her husband. They allegedly have a child of eighteen to twenty years old. Estrada is not
personally related either to Escritor or her partner. Nevertheless, he filed the charge against
Escritor as he believes that she is committing an immoral act that tarnishes the image of the
court, thus she should not be allowed to remain employed therein as it might appear that the
court condones her act.
Respondent Escritor testified that when she entered the judiciary in 1999, she was already a
widow, her husband having died in 1998. She admitted that she has been living with Luciano
Quilapio, Jr. without the benefit of marriage for twenty years and that they have a son. But as a
member of the religious sect known as the Jehovah's Witnesses and the Watch Tower and Bible

Tract Society, their conjugal arrangement is in conformity with their religious beliefs. In fact, after
ten years of living together, she executed on July 28, 1991 a "Declaration of Pledging
Faithfulness," insofar as the congregation is concerned, there is nothing immoral about the
conjugal arrangement between Escritor and Quilapio and they remain members in good
standing in the congregation.
ISSUE: Whether or not respondent should be found guilty of the administrative charge of "gross
and immoral conduct."
HELD: Benevolent neutrality recognizes that government must pursue its secular goals and
interests but at the same time strives to uphold religious liberty to the greatest extent possible
within flexible constitutional limits. Thus, although the morality contemplated by laws is secular,
benevolent neutrality could allow for accommodation of morality based on religion, provided it
does not offend compelling state interests. It still remains to be seen if respondent is entitled to
such doctrine as the state has not been afforded the chance has demonstrate the compelling
state interest of prohibiting the act of respondent, thus the case is remanded to the RTC.
Benevolent neutrality is inconsistent with the Free Exercise Clause as far as it prohibits such
exercise given a compelling state interest. It is the respondents stance that the respondents
conjugal arrangement is not immoral and punishable as it comes within the scope of free
exercise protection. Should the Court prohibit and punish her conduct where it is protected by
the Free Exercise Clause, the Courts action would be an unconstitutional encroachment of her
right to religious freedom. The Court cannot therefore simply take a passing look at respondents
claim of religious freedom, but must instead apply the compelling state interest test. The
government must be heard on the issue as it has not been given an opportunity to discharge its
burden of demonstrating the states compelling interest which can override respondents
religious belief and practice.
X. Rights and Obligations between husband and wife A. Cohabitation, mutual love and
respect Art 247 RPC, Art 68 FC, Art 34 NCC, Sec 2 RA 8353 (Anti-rape law), Sec 2-6, 8, 21,
28,m 35, RA 9262 (Anti VAWC Act of 2004), Sec 19 RA 9710 (Magna Carta of Women)
Cases
JULIETA B. NARAG, complainant, vs. ATTY. DOMINADOR M. NARAG, respondent.
D E C I S I O N PER CURIAM: Good moral character is a continuing qualification required of
every member of the bar. Thus, when a lawyer fails to meet the exacting standard of moral
integrity, the Supreme Court may withdraw his or her privilege to practice law.
On November 13, 1989, Mrs. Julieta B. Narag filed an administrative complaint[1] for disbarment
against her husband, Atty. Dominador M. Narag, whom she accused of having violated Canons
1 and 6, Rule 1.01 of the Code of Ethics for Lawyers.[2]
The complainant narrated:
The St. Louis College of Tuguegarao engaged the services of Atty. Dominador M. Narag in the
early seventies as a full-time college instructor in the College of Arts and Sciences and as a
professor in the Graduate School. In 1984, Ms. Gina Espita, 17 years old and a first year college
student, enrolled in subjects handled by Atty. Narag. Exerting his influence as her teacher, and
as a prominent member of the legal profession and then member of the Sangguniang Bayan of
Tuguegarao, Atty. Narag courted Ms. Espita, gradually lessening her resistance until the student
acceded to his wishes.
They then maintained an illicit relationship known in various circles in the community, but which
they managed to keep from me. It therefore came as a terrible embar[r]assment to me, with
unspeakable grief and pain when my husband abandoned us, his family, to live with Ms. Espita,
in utterly scandalous circumstances.
It appears that Atty. Narag used his power and influence as a member of the Sangguniang
Panlalawigan of Cagayan to cause the employment of Ms. Espita at the Department of Trade
and Industry Central Office at Makati, Metro Manila. Out of gratitude perhaps, for this gesture,
Ms. Espita agreed to live with Atty. Narag, her sense of right[e]ousness and morals completely
corrupted by a member of the Bar.
It is now a common knowledge in the community that Atty. Dominador M. Narag has abandoned
us, his family, to live with a 22-year-old woman, who was his former student in the tertiary level[.]
[3]

This Court, in a Resolution dated December 18, 1989, referred the case to the Integrated Bar of
the Philippines (IBP) for investigation, report and recommendation. [4]
On June 26, 1990, the office of then Chief Justice Marcelo B. Fernan received from complainant
another letter seeking the dismissal of the administrative complaint. She alleged therein that (1)
she fabricated the allegations in her complaint to humiliate and spite her husband; (2) all the
love letters between the respondent and Gina Espita were forgeries; and (3) she was suffering
from emotional confusion arising from extreme jealousy. The truth, she stated, was that her
husband had remained a faithful and responsible family man. She further asserted that he had
neither entered into an amorous relationship with one Gina Espita nor abandoned his family.
[5]
Supporting her letter were an Affidavit of Desistance[6] and a Motion to Dismiss,[7] attached as
Annexes A and B, which she filed before the IBP commission on bar discipline.[8] In a Decision
dated October 8, 1991, the IBP Board of Governors [9] dismissed the complaint of Mrs. Narag for
failure to prosecute.[10]
The case took an unexpected turn when, on November 25, 1991, this Court[11] received another
letter[12] from the complainant, with her seven children[13] as co-signatories, again appealing for
the disbarment of her husband. She explained that she had earlier dropped the case against
him because of his continuous threats against her.[14]
In his Comment on the complainants letter of November 11, 1991, filed in compliance with this
Courts Resolution issued on July 6, 1992,[15] respondent prayed that the decision of the Board of
Governors be affirmed. Denying that he had threatened, harassed or intimidated his wife, he
alleged that she had voluntarily executed her Affidavit of Desistance[16] and Motion to Dismiss,
[17]
even appearing before the investigating officer, Commissioner Racela, to testify under oath
that she prepared the Motion to Dismiss and Affidavit of Desistance on her own free will and
affirmed the contents thereof.

In addition, he professed his love for his wife and his children and denied abandoning his family
to live with his paramour. However, he described his wife as a person emotionally
disturbed, viz.:
What is pitiable here is the fact that Complainant is an incurably jealous and possessive woman,
and every time the streak of jealousy rears its head, she fires off letters or complaints against
her husband in every conceivable forum, all without basis, and purely on impulse, just to satisfy
the consuming demands of her loving jealousy. Then, as is her nature, a few hours afterwards,
when her jealousy cools off, she repents and feels sorry for her acts against the
Respondent.Thus, when she wrote the Letter of November 11, 1991, she was then in the grips
of one of her bouts of jealousy.[18]
On August 24, 1992, this Court issued another Resolution referring the Comment of respondent
to the IBP.[19] In the hearing before IBP Commissioner Plaridel C. Jose, respondent alleged the
following:[20]
2. Your Respondent comes from very poor parents who have left him not even a square meter
of land, but gave him the best legacy in life: a purposeful and meaningful
education. Complainant comes from what she claims to be very rich parents who value material
possession more than education and the higher and nobler aspirations in life. Complainant
abhors the poor.
3. Your Respondent has a loving upbringing, nurtured in the gentle ways of love, forgiveness,
humility, and concern for the poor. Complainant was reared and raised in an entirely different
environment. Her value system is the very opposite.
4. Your Respondent loves his family very dearly, and has done all he could in thirty-eight (38)
years of marriage to protect and preserve his family. He gave his family sustenance, a
comfortable home, love, education, companionship, and most of all, a good and respected
name. He was always gentle and compassionate to his wife and children. Even in the most
trying times, he remained calm and never inflicted violence on them. His children are all now fullfledged professionals, mature, and gainfully employed. x x x
xxxxxxxxx
Your Respondent subscribes to the sanctity of marriage as a social institution.
On the other hand, consumed by insane and unbearable jealousy, Complainant has been
systematically and unceasingly destroying the very foundations of their marriage and their
family. Their marriage has become a torture chamber in which Your Respondent has been
incessantly BEATEN, BATTERED, BRUTALIZED, TORTURED, ABUSED, and HUMILIATED,
physically, mentally, and emotionally, by the Complainant, in public and at home. Their marriage
has become a nightmare.
For thirty-eight years, your Respondent suffered in silence and bore the pain of his misfortune
with dignity and with almost infinite patience, if only to preserve their family and their
marriage. But this is not to be. The Complainant never mellowed and never became gentl[e],
loving, and understanding. In fact, she became more fierce and predatory.
Hence, at this point in time, the light at the tunnel for Your Respondent does not seem in
sight. The darkness continues to shroud the marital and familial landscape.
Your Respondent has to undergo a catharsis, a liberation from enslavement. Paraphrasing
Dorfman in Death and the Maiden, can the torturer and the tortured co-exist and live together?
Hence, faced with an absolutely uncomprehending and uncompromising mind whose only
obsession now is to destroy, destroy, and destroy, Your Respondent, with perpetual regret and
with great sorrow, filed a Petition for Annulment of Marriage, Spl. Proc. No. 566, RTC, Branch III,
Tuguegarao, Cagayan. x x x.
5. Complainant is a violent husband-beater, vitriolic and unbending. But your Respondent never
revealed these destructive qualities to other people. He preserved the good name and dignity of
his wife. This is in compliance with the marital vow to love, honor or obey your spouse, for better
or for worse, in sickness and in health. . . Even in this case, Your Respondent never revealed
anything derogatory to his wife. It is only now that he is constrained to reveal all these things to
defend himself.
On the other hand, for no reason at all, except a jealous rage, Complainant tells everyone,
everywhere, that her husband is worthless, good-for-nothing, evil and immoral. She goes to
colleges and universities, professional organizations, religious societies, and all other sectors of
the community to tell them how evil, bad and immoral her husband is. She tells them not to hire
him as professor, as Counsel, or any other capacity because her husband is evil, bad, and
immoral. Is this love? Since when did love become an instrument to destroy a mans dearest
possession in life - his good name, reputation and dignity?
Because of Complainants virulent disinformation campaign against her husband, employing
every unethical and immoral means to attain his ends, Your Respondent has been irreparably
and irreversibly disgraced, shamed, and humiliated.Your Respondent is not a scandalous
man. It is he who has been mercilessly scandalized and crucified by the Complainant.[21]
To prove the alleged propensity of his wife to file false charges, respondent presented as
evidence the following list of the complaints she had filed against him and Gina Espita:
3.1 Complaint for Immorality/Neglect of Duty x x x
3.2 Complaint for Immorality/Neglect of Duty, DILG, Adm. Case No. P-5-90. x x x
3.3 Complaint for Concubinage. Provincial Prosecutors Office of Cagayan. I.S No. 89-114. x x x
3.4 Complaint for Anti-Graft and Corrupt Practices and concubinage. OMBUDSMAN Case No.
1-92-0083. x x x
3.5 Complaint for Civil Support. RTC, Tuguegarao, Civil Case No. 4061. DISMISSED.
3.6 Complaint for Concubinage. Provincial Prosecutors Office of Cagayan. I.S. No. 92-109.
DISMISSED. (x x x). Complainant filed Motion for Reconsideration. DENIED. (x x x).
3.7 Complaint for Disbarment (x x x) with S[upreme] C[ourt]. Withdrawn (x x x). DISMISSED by
IBP Board of Governors (x x x). Re-instituted (x x x).
3.8 Complaint for Disbarment, again (x x x). Adm. Case No. 3405. Pending.
3.9 Complaint for Concubinage, again (x x x). Third MCTC, Tumauini, Isabela. Pending. x x x[22]
In his desperate effort to exculpate himself, he averred:
I. That all the alleged love letters and envelopes (x x x), picture (x x x) are inadmissible in
evidence as enunciated by the Supreme Court in Cecilia Zulueta vs. Court of Appeals, et. al.,
G.R. No. 107383, February 20, 1996. (x x x).

xxxxxxxxx
II. That respondent is totally innocent of the charges: He never courted Gina Espita in the Saint
Louis College of Tuguegarao. He never caused the employment of said woman in the DTI. He
never had or is having any illicit relationship with her anywhere, at any time. He never lived with
her as husband and wife anywhere at any time, be it in Centro Tumauini or any of its barangays,
or in any other place. He never begot a child or children with her. Finally, respondent submits
that all the other allegations of Mrs. Narag are false and fabricated, x x x
xxxxxxxxx
III. Respondent never abandoned his family[.] Mrs. Narag and her two sons forcibly drove
respondent Narag out of the conjugal home. After that, Atty. Narag tried to return to the conjugal
home many times with the help of mutual friends to save the marriage and the family from
collapse. He tried several times to reconcile with Mrs. Narag. In fact, in one of the hearings of
the disbarment case, he offered to return home and to reconcile with Mrs. Narag. But Mrs.
Narag refused all these efforts of respondent Narag. x x x
IV. Complainant Julieta B. Narag is an unbearably jealous, violent, vindictive, scandalous,
virulent and merciless wife since the beginning of the marriage, who incessantly beat, battered,
brutalized, tortured, abuse[d], scandalized, and humiliated respondent Atty. Narag, physically,
mentally, emotionally, and psychologically, x x x.
V. Complainant Julieta Narags claim in her counter-manifestation dated March 28, 1996, to the
effect that the affidavit of Dominador B. Narag, Jr., dated February 27, 1996 was obtained
through force and intimidation, is not true.Dominador, Jr., executed his affidavit freely, voluntarily,
and absolutely without force or intimidation, as shown by the transcript of stenographic notes of
the testimonies of Respondent Atty. Narag and Tuguegarao MTC Judge Dominador Garcia
during the trial of Criminal Case No. 12439, People vs. Dominador M. Narag, et. al., before the
Tuguegarao MTC on May 3, 1996. x x x.
xxxxxxxxx
VI. Respondent Atty. Narag is now an old man - a senior citizen of 63 years - sickly, abandoned,
disgraced, weakened and debilitated by progressively degenerative gout and arthritis, and
hardly able to earn his own keep. His very physical, medical, psychological, and economic
conditions render him unfit and unable to do the things attributed to him by the
complainant. Please see the attached medical certificates, x x x, among many other similar
certificates touching on the same ailments. Respondent is also suffering from hypertension.[23]
On July 18, 1997, the investigating officer submitted his report,[24] recommending the indefinite
suspension of Atty. Narag from the practice of law. The material portions of said report read as
follows:
Culled from the voluminous documentary and testimonial evidence submitted by the contending
parties, two (2) issues are relevant for the disposition of the case, namely:
a) Whether there was indeed a commission of alleged abandonment of respondents own family
and [whether he was] living with his paramour, Gina Espita;
b) Whether the denial under oath that his illegitimate children with Gina Espita (Aurelle Dominic
and Kyle Dominador) as appearing on paragraph 1(g) of respondents Comment vis-a-vis his
handwritten love letters, the due execution and contents of which, although he objected to their
admissibility for being allegedly forgeries, were never denied by him on the witness stand much
less presented and offered proof to support otherwise.
Except for the testimonies of respondents witnesses whose testimonies tend to depict the
complaining wife, Mrs. Narag, as an incurably jealous wife and possessive woman suffering
everytime with streaks of jealousy, respondent did not present himself on the witness stand to
testify and be cross-examined on his sworn comment; much less did he present his alleged
paramour, Gina Espita, to disprove the adulterous relationship between him and their having
begotten their illegitimate children, namely: Aurelle Dominic N. Espita and Kyle Dominador N.
Espita. Worse, respondents denial that he is the father of the two is a ground for disciplinary
sanction (Morcayda v. Naz, 125 SCRA 467).
Viewed from all the evidence presented, we find the respondent subject to disciplinary action as
a member of the legal profession.[25]
In its Resolution[26] issued on August 23, 1997, the IBP adopted and approved the investigating
commissioners recommendation for the indefinite suspension of the respondent.
[27]
Subsequently, the complainant sought the disbarment of her husband in a
Manifestation/Comment she filed on October 20, 1997. The IBP granted this stiffer penalty and,
in its Resolution dated November 30, 1997, denied respondents Motion for Reconsideration.
After a careful scrutiny of the records of the proceedings and the evidence presented by the
parties, we find that the conduct of respondent warrants the imposition of the penalty of
disbarment.
The Code of Professional Responsibility provides:
Rule 1.01-- A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
CANON 7-- A lawyer shall at all times uphold the integrity and dignity of the legal profession,
and support the activities of the Integrated Bar.
Rule 7.03-- A lawyer shall not engage in conduct that adversely reflects on his fitness to practice
law, nor should he, whether in public or private life, behave in a scandalous manner to the
discredit of the legal profession.
Thus, good moral character is not only a condition precedent[28] to the practice of law, but
a continuing qualification for all members of the bar. Hence, when a lawyer is found guilty of
gross immoral conduct, he may be suspended or disbarred.[29]
Immoral conduct has been defined as that conduct which is so willful, flagrant, or shameless as
to show indifference to the opinion of good and respectable members of the community.
[30]
Furthermore, such conduct must not only be immoral, butgrossly immoral. That is, it must be
so corrupt as to constitute a criminal act or so unprincipled as to be reprehensible to a high
degree[31] or committed under such scandalous or revolting circumstances as to shock the
common sense of decency.[32]
We explained in Barrientos vs. Daarol[33] that, as officers of the court, lawyers must not only in
fact be of good moral character but must also be seen to be of good moral character and
leading lives in accordance with the highest moral standards of the community. More
specifically, a member of the Bar and officer of the court is not only required to refrain from

adulterous relationships or the keeping of mistresses but must also so behave himself as to
avoid scandalizing the public by creating the belief that he is flouting those moral standards.
Respondent Narag is accused of gross immorality for abandoning his family in order to live with
Gina Espita. The burden of proof rests upon the complainant, and the Court will exercise its
disciplinary power only if she establishes her case by clear, convincing and satisfactory
evidence.[34]
Presented by complainant as witnesses, aside from herself,[35] were: Charlie Espita,
[36]
Magdalena Bautista,[37] Bienvenido Eugenio,[38] Alice Carag,[39] Dr. Jervis B. Narag,
[40]
Dominador Narag, Jr.,[41] and Nieves F. Reyes.[42]
Charlie Espita, brother of the alleged paramour Gina Espita, corroborated complainants charge
against respondent in these categorical statements he gave to the investigating officer:
Q Mr. Witness, do you know Atty. Narag?
A Yes, Your Honor, he is the live-in partner of my sister, Gina Espita.
Q If Atty. Narag is here, can you point [to] him?
A Yes, sir.
(Witness pointed to the respondent, Atty. Dominador Narag)
Q Why do you know Atty. Narag?
ATTY. NARAG:
Already answered. He said I am the live-in partner.
CONTINUATION OF THE DIRECT
A Because he is the live-in partner of my sister and that they are now living together as husband
and wife and that they already have two children, Aurelle Dominic and Kyle Dominador.
x x x x x x x x x [43]
During cross-examination conducted by the respondent himself, Charlie Espita repeated his
account that his sister Gina was living with the respondent, with whom she had two children:
Q Mr. Espita, you claim that Atty. Narag is now living with your sister as husband and wife. You
claim that?
A Yes, sir.
Q Why do you say that?
A Because at present you are living together as husband and wife and you have already two
children and I know that that is really an immoral act which you cannot just allow me to follow
since my moral values dont allow me that my sister is living with a married man like you.
Q How do you know that Atty. Narag is living with your sister? Did you see them in the house?
A Yes, si[r].
xxxxxxxxx
Q You said also that Atty. Narag and your sister have two children, Aurelle Dominic and Kyle
Dominador, is it not?
A Yes, sir.
Q How do you know that they are the children of Atty. Narag?
A Because you are staying together in that house and you have left your family.[44]
In addition, Charlie Espita admitted (1) that it was he who handed to Mrs. Narag the love letters
respondent had sent to his sister, and (2) that Atty. Narag tried to dissuade him from appearing
at the disbarment proceedings.[45]
Witness Bienvenido Eugenio strengthened the testimony of Charlie Espita in this wise:
Q Mr. Witness, do you know the respondent in this case?
A I know him very well, sir.
Q Could you please tell us why do you know him?
A Because he was always going to the house of my son-in-law by the name of Charlie Espita.
xxxxxxxxx
Q Mr. Eugenio, do you know the residence of Atty. Dominador M. Narag?
A At that time, he [was] residing in the house of Reynaldo Angubong, sir.
Q And this is located where?
A Centro Tamauini, Isabela, sir.
Q And you specifically, categorically state under oath that this is the residence of Atty. Narag?
A Yes, sir.
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Q And under oath this is where Atty. Narag and Gina Espita are allegedly living as husband and
wife, is it not?
A Yes, sir.[46]
Witness Nieves Reyes, a neighbor and friend of the estranged couple, testified that she learned
from the Narag children -- Randy, Bong and Rowena -- that their father left his family, that she
and her husband prodded the complainant to accept the respondent back, that the Narag couple
again separated when the respondent went back to his woman, and that Atty. Narag had
maltreated his wife.[47]
On the strength of the testimony of her witnesses, the complainant was able to establish that
respondent abandoned his family and lived with another woman. Absent any evidence showing
that these witnesses had an ill motive to testify falsely against the respondent, their testimonies
are deemed worthy of belief.
Further, the complainant presented as evidence the love letters that respondent had sent to
Gina. In these letters, respondent clearly manifested his love for Gina and her two children,
whom he acknowledged as his own. In addition, complainant also submitted as evidence the
cards that she herself had received from him. Guided by the rule that handwriting may be
proved through a comparison of one set of writings with those admitted or treated by the
respondent as genuine, we affirm that the two sets of evidence were written by one and the
same person.[48] Besides, respondent did not present any evidence to prove that the love letters
were not really written by him; he merely denied that he wrote them.
While the burden of proof is upon the complainant, respondent has the duty not only to himself
but also to the court to show that he is morally fit to remain a member of the bar. Mere denial
does not suffice. Thus, when his moral character is assailed, such that his right to continue
practicing his cherished profession is imperiled, he must meet the charges squarely and present
evidence, to the satisfaction of the investigating body and this Court, that he is morally fit to have
his name in the Roll of Attorneys.[49] This he failed to do.

Respondent adamantly denies abandoning his family to live with Gina Espita. At the same time,
he depicts his wife as a violent husband-beater, vitriolic and unbending, and as an insanely and
pathologically jealous woman, whose only obsession was to destroy, destroy and destroy him as
shown by her filing of a series of allegedly unfounded charges against him (and Gina Espita). To
prove his allegation, he presented ninety-eight (98) pieces of documentary evidence [50] and ten
(10) witnesses.[51]
We note, however, that the testimonies of the witnesses of respondent did not establish the fact
that he maintained that moral integrity required by the profession that would render him fit to
continue practicing law. Neither did their testimonies destroy the fact, as proven by the
complainant, that he had abandoned his family and lived with Gina Espita, with whom he had
two children. Some of them testified on matters which they had no actual knowledge of, but
merely relied on information from either respondent himself or other people, while others were
presented to impeach the good character of his wife.
Respondent may have provided well for his family -- they enjoyed a comfortable life and his
children finished their education. He may have also established himself as a successful lawyer
and a seasoned politician. But these accomplishments are not sufficient to show his moral
fitness to continue being a member of the noble profession of law.
We remind respondent that parents have not only rights but also duties e.g., to support, educate
and instruct their children according to right precepts and good example; and to give them love,
companionship and understanding, as well as moral and spiritual guidance. [52] As a husband, he
is also obliged to live with his wife; to observe mutual love, respect and fidelity; and to render
help and support.[53]
Respondent himself admitted that his work required him to be often away from home. But the
evidence shows that he was away not only because of his work; instead, he abandoned his
family to live with his paramour, who bore him two children.It would appear, then, that he was
hardly in a position to be a good husband or a good father. His children, who grew up mostly
under the care of their mother, must have scarcely felt the warmth of their fathers love.
Respondents son, Jervis B. Narag, showed his resentment towards his fathers moral frailties in
his testimony:
Q My question is this, is there any sin so grievous that it cannot be forgiven, is there a fault that
is so serious that it is incapable of forgiveness?
A That depends upon the sin or fault, sir, but if the sin or fault is with the emotional part of
myself, I suppose I cannot forgive a person although I am a God-fearing person, but I h[av]e to
give the person a lesson in order for him or her to at least realize his mistakes, sir.
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COMR. JOSE:
I think it sounds like this. Assuming for the sake of argument that your father is the worst,
hardened criminal on earth, would you send him to jail and have him disbarred? That is the
question.
CONTINUATION.
A With the reputation that he had removed from us, I suppose he has to be given a lesson. At
this point in time, I might just forgive him if he will have to experience all the pains that we have
also suffered for quite sometime.
Q Dr. Narag, your father gave you life, his blood runs in your veins, his flesh is your flesh, his
bones are your bones and you now disown him because he is the worst man on earth, is that
what you are saying.
A Sort of, sir.
Q You are now telling that as far [as] you are concerned because your father has sinned, you
have no more father, am I correct?
A Long before, sir, I did not feel much from my father even when I was still a kid because my
father is not always staying with us at home. So, how can you say that? Yes, he gave me life,
why not? But for sure, sir, you did not give me love.[54]
Another son, Dominador Narag, Jr., narrated before the investigating officer the trauma he went
through:
Q In connection with that affidavit, Mr. Witness, which contains the fact that your father is
maintaining a paramour, could you please tell this Honorable Commission the effect on you?
A This has a very strong effect on me and this includes my brothers and sisters, especially my
married life, sir. And it also affected my children so much, that I and my wife ha[ve] parted
ways. It hurts to say that I and my wife parted ways. This is one reason that affected us.
Q Will you please tell us specifically why you and your wife parted ways?
A Because my wife wa[s] ashamed of what happened to my family and that she could not face
the people, our community, especially because my wife belongs to a well-known family in our
community.
Q How about the effect on your brothers and sisters? Please tell us what are those.
A Well, sir, this has also affected the health of my elder sister because she knows so well that
my mother suffered so much and she kept on thinking about my mother.
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Q Why did your wife leave you?
A The truth is because of the things that had happened in our family, Your Honor.
Q In your wifes family?
A In our family, sir.
Q And what do you mean by that?
A What I meant by that is my father had an illicit relationship and that my father went to the
extent of scolding my wife and calling my wife a puta in provincial government, which my
mother-in-law hated him so much for this, which really affected us. And then my wife knew for a
fact that my father has an illicit relationship with Gina Espita, whom he bore two children by the
name of Aurelle Dominic and Kyle Dominador, which I could prove and I stand firm to this, Your
Honor.[55]
Although respondent piously claims adherence to the sanctity of marriage, his acts prove
otherwise. A husband is not merely a man who has contracted marriage. Rather, he is a partner
who has solemnly sworn to love and respect his wife and remain faithful to her until death.

We reiterate our ruling in Cordova vs. Cordova[56] The moral delinquency that affects the fitness
of a member of the bar to continue as such includes conduct that outrages the generally
accepted moral standards of the community, conduct for instance, which makes a mockery of
the inviolable social institution of marriage.
In Toledo vs. Toledo,[57] the respondent was disbarred from the practice of law, when he
abandoned his lawful wife and cohabited with another woman who had borne him a child.
Likewise, in Obusan vs. Obusan,[58] the respondent was disbarred after the complainant proved
that he had abandoned her and maintained an adulterous relationship with a married
woman. This Court declared that respondent failed to maintain the highest degree of morality
expected and required of a member of the bar.
In the present case, the complainant was able to establish, by clear and convincing evidence,
that respondent had breached the high and exacting moral standards set for members of the law
profession. As held in Maligsa vs. Cabanting,[59] a lawyer may be disbarred for any misconduct,
whether in his professional or private capacity, which shows him to be wanting in moral
character, in honesty, probity and good demeanor or unworthy to continue as an officer of the
court.
WHEREFORE, Dominador M. Narag is hereby DISBARRED and his name is ORDERED
STRICKEN from the Roll of Attorneys. Let copies of this Decision be in the personal record of
Respondent Narag; and furnished to all courts of the land, the Integrated Bar of the Philippines,
and the Office of the Bar Confidant. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr.,
Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Martinez,
Quisumbing, and Purisima, JJ., concur.
FACTS: Atty. Dominador Narag was alleged to have abandoned his family for his paramour who
was once his student in tertiary level. The administrative complaint of disbarment was filed by
her wife, Mrs. Julieta Narag. Respondent filed motion to dismiss because allegedly the
complainant fabricated the story as well as the love letters while under extreme emotional
confusion arising from jealousy. The case took an unexpected turn when another complaint was
filed, the wife as again the complainant but now together with their seven children as cosignatories. After several hearings, the facts became clear, that the respondent indeed
abandoned his family as against morals, based on testimonial evidences. In addition, the
assailed relationship bore two children.
ISSUE: Whether or not respondent is guilty of gross immorality and for having violated and the
Code of Ethics for Lawyers culpable for disbarment.
HELD: YES. Respondent disbarred.
RATIO: The complainant was able to establish, by clear and convincing evidence, that the
respondent breached the high and exacting moral standards set for the members of the law
profession.
Good moral character is not only a condition precedent to the practice of law, but
a continuing qualification for all members of the bar.
CANON 7 A lawyer shall at all times uphold the integrity and dignity of the legal profession,
and support the activities of the Integrated Bar.
Rule 7.03 A lawyer shall not engage in conduct that adversely reflects on his fitness to
practice law, nor should he, whether in public or private life, behave in a scandalous manner to
the discredit of the legal profession.
Undoubtedly, the canons of law practice were violated.
ELOISA GOITIA DE LA CAMARA, plaintiff-appellant, vs. JOSE CAMPOS RUEDA, defendantappellee. Eduardo Gutierrez Repide and Felix Socias for appellant. Sanz, Opisso and Luzuriaga
for appellee.
TRENT, J.: This is an action by the wife against her husband for support outside of the conjugal
domicile. From a judgment sustaining the defendant's demurrer upon the ground that the facts
alleged in the complaint do not state a cause of action, followed by an order dismissing the case
after the plaintiff declined to amend, the latter appealed.
It was urged in the first instance, and the court so held, that the defendant cannot be compelled
to support the plaintiff, except in his own house, unless it be by virtue of a judicial decree
granting her a divorce or separation from the defendant.
The parties were legally married in the city of Manila on January 7, 1915, and immediately
thereafter established their residence at 115 Calle San Marcelino, where they lived together for
about a month, when the plaintiff returned to the home of her parents. The pertinent allegations
of the complaint are as follows:
That the defendant, one month after he had contracted marriage with the plaintiff, demanded of
her that she perform unchaste and lascivious acts on his genital organs; that the plaintiff
spurned the obscene demands of the defendant and refused to perform any act other than legal
and valid cohabitation; that the defendant, since that date had continually on other successive
dates, made similar lewd and indecorous demands on his wife, the plaintiff, who always spurned
them, which just refusals of the plaintiff exasperated the defendant and induce him to maltreat
her by word and deed and inflict injuries upon her lips, her face and different parts of her body;
and that, as the plaintiff was unable by any means to induce the defendant to desist from his
repugnant desires and cease from maltreating her, she was obliged to leave the conjugal abode
and take refuge in the home of her parents.
Marriage in this jurisdiction is a contract entered into in the manner and with the solemnities
established by General Orders No. 68, in so far as its civil effects are concerned requiring the
consent of the parties. (Garcia vs. Montague, 12 Phil. Rep., 480, citing article 1261 of Civil
Code.) Upon the termination of the marriage ceremony, a conjugal partnership is formed
between the parties. (Sy Joc Lieng vs. Encarnacion, 16 Phil. Rep., 137.) To this extent a
marriage partakes of the nature of an ordinary contract. But it is something more than a mere
contract. It is a new relation, the rights, duties, and obligations of which rest not upon the
agreement of the parties but upon the general law which defines and prescribes those rights,
duties, and obligations .Marriage is an institution, in the maintenance of which in its purity the
public is deeply interested. It is a relation for life and the parties cannot terminate it at any
shorter period by virtue of any contract they may make .The reciprocal rights arising from this
relation, so long as it continues, are such as the law determines from time to time, and none

other. When the legal existence of the parties is merged into one by marriage, the new relation
is regulated and controlled by the state or government upon principles of public policy for the
benefit of society as well as the parties. And when the object of a marriage is defeated by
rendering its continuance intolerable to one of the parties and productive of no possible good to
the community, relief in some way should be obtainable. With these principles to guide us, we
will inquire into the status of the law touching and governing the question under consideration.
Articles 42 to 107 of the Civil Code are not in force in the Philippine Islands (Benedicto vs. De la
Rama, 3 Phil .Rep., 34). Articles 44 to 78 of the Law of Civil Marriage of 1870, in force in the
Peninsula, were extended to the Philippine Islands by royal decree on April 13, 1883 (Ebreo vs.
Sichon, 4 Phil. Rep., 705). Articles 44, 45, and 48 of this law read:
ART. 44. The spouses are obliged to be faithful to each other and to mutually assist each other.
ART. 45. The husband must live with and protect his wife. (The second paragraph deals with the
management of the wife's property.)
ART. 48. The wife must obey her husband, live with him, and follow him when he charges his
domicile or residence.
Notwithstanding the provisions of the foregoing paragraph, the court may for just cause relieve
her from this duty when the husband removes his residence to a foreign country.
And articles 143 and 149 of the Civil Code are as follows:
ART. 143. The following are obliged to support each other reciprocally to the whole extent
specified in the preceding article.
1. The consorts.
xxx
xxx
xxx
ART. (149) 49. The person obliged to give support may, at his option, satisfy it, either by paying
the pension that may be fixed or by receiving and maintaining in his own home the person
having the right to the same.
Article 152 of the Civil Code gives the instances when the obligation to give support shall cease.
The failure of the wife to live with her husband is not one of them.
The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and
obligations of the spouses. The spouses must be faithful to, assist, and support each other. The
husband must live with and protect his wife. The wife must obey and live with her husband and
follow him when he changes his domicile or residence, except when he removes to a foreign
country. But the husband who is obliged to support his wife may, at his option, do so by paying
her a fixed pension or by receiving and maintaining her in his own home. May the husband, on
account of his conduct toward his wife, lose this option and be compelled to pay the pension? Is
the rule established by article 149 of the Civil Code absolute? The supreme court of Spain in its
decision of December 5, 1903, held:.
That in accordance with the ruling of the supreme court of Spain in its decisions dated May 11,
1897, November 25, 1899, and July 5, 1901, the option which article 149 grants the person,
obliged to furnish subsistence, between paying the pension fixed or receiving and keeping in his
own house the party who is entitled to the same, is not so absolute as to prevent cases being
considered wherein, either because this right would be opposed to the exercise of a preferential
right or because of the existence of some justifiable cause morally opposed to the removal of
the party enjoying the maintenance, the right of selection must be understood as being thereby
restricted.
Whereas the only question discussed in the case which gave rise to this appeal was whether
there was any reason to prevent the exercise of the option granted by article 149 of the Civil
Code to the person obliged to furnish subsistence, to receive and maintain in his own house the
one who is entitled to receive it; and inasmuch as nothing has been alleged or discussed with
regard to the parental authority of Pedro Alcantara Calvo, which he ha not exercised, and it
having been set forth that the natural father simply claims his child for the purpose of thus better
attending to her maintenance, no action having been taken by him toward providing the support
until, owing to such negligence, the mother was obliged to demand it; it is seen that these
circumstances, together with the fact of the marriage of Pedro Alcantara, and that it would be
difficult for the mother to maintain relations with her daughter, all constitute an impediment of
such a nature as to prevent the exercise of the option in the present case, without prejudice to
such decision as may be deemed proper with regard to the other questions previously cited in
respect to which no opinion should be expressed at this time.
The above was quoted with approval in United States and De Jesus vs. Alvir (9 Phil. Rep., 576),
wherein the court held that the rule laid down in article 149 of the Civil Code "is not absolute."
but it is insisted that there existed a preexisting or preferential right in each of these cases which
was opposed to the removal of the one entitled to support. It is true that in the first the person
claiming the option was the natural father of the child and had married a woman other than the
child's mother, and in the second the right to support had already been established by a final
judgment in a criminal case. Notwithstanding these facts the two cases clearly established the
proposition that the option given by article 149 of the Civil Code may not be exercised in any
and all cases.
Counsel for the defendant cite, in support of their contention, the decision of the supreme court
of Spain, dated November 3, 1905. In this case Don Berno Comas, as a result of certain
business reverses and in order no to prejudice his wife, conferred upon her powers to administer
and dispose of her property. When she left him he gave her all the muniments of title, mortgage
credits, notes, P10,000 in accounts receivable, and the key to the safe in which he kept a large
amount of jewels, thus depriving himself of all his possessions and being reduced in
consequence to want. Subsequently he instituted this civil action against his wife, who was then
living in opulence, for support and the revocation of the powers heretofore granted in reference
to the administration and disposal of her property. In her answer the wife claimed that the
plaintiff (her husband) was not legally in a situation to claim support and that the powers
voluntarily conferred and accepted by her were bilateral and could not be canceled by the
plaintiff. From a judgment in favor of the plaintiff the defendant wife appealed to the Audencia
Territorialwherein, after due trial, judgment was rendered in her favor dismissing the action upon
the merits. The plaintiff appealed to the supreme court and that high tribunal, in affirming the
judgment of the Audencia Territorial, said:

Considering that article 143, No. 1, of the Civil Code, providing that the spouses are mutually
obliged to provide each other with support, cannot but be subordinate to the other provisions of
said Code which regulates the family organization and the duties of spouses not legally
separated, among which duties are those of their living together and mutually helping each
other, as provided in article 56 of the aforementioned code; and taking this for granted, the
obligation of the spouse who has property to furnish support to the one who has no property and
is in need of it for subsistence, is to be understood as limited to the case where, in accordance
with law, their separation has been decreed, either temporarily or finally and this case, with
respect to the husband, cannot occur until a judgment of divorce is rendered, since, until then, if
he is culpable, he is not deprived of the management of his wife's property and of the product of
the other property belonging to the conjugal partnership; and
Considering that, should the doctrine maintained in the appeal prevail, it would allow married
persons to disregard the marriage bond and separate from each other of their own free will, thus
establishing, contrary to the legal provision contained in said article 56 of the Civil Code, a legal
status entirely incompatible with the nature and effects of marriage in disregard of the duties
inherent therein and disturbing the unity of the family, in opposition to what the law, in conformity
with good morals, has established; and.
Considering that, as the spouses D. Ramon Benso and Doa Adela Galindo are not legally
separated, it is their duty to live together and afford each other help and support; and for this
reason, it cannot be held that the former has need of support from his wife so that he may live
apart from her without the conjugal abode where it is his place to be, nor of her conferring power
upon him to dispose even of the fruits of her property in order therewith to pay the matrimonial
expenses and, consequently, those of his own support without need of going to his wife;
wherefore the judgment appealed from, denying the petition of D. Ramon Benso for support, has
not violated the articles of the Civil Code and the doctrine invoked in the assignments of error 1
and 5 of the appeal.
From a careful reading of the case just cited and quoted from it appears quite clearly that the
spouses separated voluntarily in accordance with an agreement previously made. At least there
are strong indications to this effect, for the court says, "should the doctrine maintained in the
appeal prevail, it would allow married persons to disregard the marriage bond and separate from
each other of their own free will." If this be the true basis upon which the supreme court of Spain
rested its decision, then the doctrine therein enunciated would not be controlling in cases where
one of the spouses was compelled to leave the conjugal abode by the other or where the
husband voluntarily abandons such abode and the wife seeks to force him to furnish support.
That this is true appears from the decision of the same high tribunal, dated October 16, 1903. In
this case the wife brought an action for support against her husband who had willfully and
voluntarily abandoned the conjugal abode without any cause whatever. The supreme court,
reversing the judgment absolving the defendant upon the ground that no action for divorce, etc.,
had been instituted, said:
In the case at bar, it has been proven that it was Don Teodoro Exposito who left the conjugal
abode, although he claims, without however proving his contention, that the person responsible
for this situation was his wife, as she turned him out of the house. From this state of affairs it
results that it is the wife who is party abandoned, the husband not having prosecuted any action
to keep her in his company and he therefore finds himself, as long as he consents to the
situation, under the ineluctable obligation to support his wife in fulfillment of the natural duty
sanctioned in article 56 of the Code in relation with paragraph 1 of article 143. In not so holding,
the trial court, on the mistaken ground that for the fulfillment of this duty the situation or relation
of the spouses should be regulated in the manner it indicates, has made the errors of law
assigned in the first three grounds alleged, because the nature of the duty of affording mutual
support is compatible and enforcible in all situations, so long as the needy spouse does not
create any illicit situation of the court above described.lawphil.net
If we are in error as to the doctrine enunciated by the supreme court of Spain in its decision of
November 3, 1905, and if the court did hold, as contended by counsel for the defendant in the
case under consideration, that neither spouse can be compelled to support the other outside of
the conjugal abode, unless it be by virtue of a final judgment granting the injured one a divorce
or separation from the other, still such doctrine or holding would not necessarily control in this
jurisdiction for the reason that the substantive law is not in every particular the same here as it is
in Spain. As we have already stated, articles 42 to 107 of the Civil Code in force in the Peninsula
are not in force in the Philippine Islands. The law governing the duties and obligations of
husband and wife in this country are articles 44 to 78 of the Law of Civil Marriage of 1870 .In
Spain the complaining spouse has, under article 105 of the Civil Code, various causes for
divorce, such as adultery on the part of the wife in every case and on the part of the husband
when public scandal or disgrace of the wife results therefrom; personal violence actually inflicted
or grave insults: violence exercised by the husband toward the wife in order to force her to
change her religion; the proposal of the husband to prostitute his wife; the attempts of the
husband or wife to corrupt their sons or to prostitute their daughters; the connivance in their
corruption or prostitution; and the condemnation of a spouse to perpetual chains or hard labor,
while in this jurisdiction the only ground for a divorce is adultery. (Benedicto vs. De la Rama, 3
Phil .Rep., 34, 45.) This positive and absolute doctrine was announced by this court in the case
just cited after an exhaustive examination of the entire subject. Although the case was appealed
to the Supreme Court of the United States and the judgment rendered by this court was there
reversed, the reversal did not affect in any way or weaken the doctrine in reference to adultery
being the only ground for a divorce. And since the decision was promulgated by this court in that
case in December, 1903, no change or modification of the rule has been announced. It is,
therefore, the well settled and accepted doctrine in this jurisdiction.
But it is argued that to grant support in an independent suit is equivalent to granting divorce or
separation, as it necessitates a determination of the question whether the wife has a good and
sufficient cause for living separate from her husband; and, consequently, if a court lacks power
to decree a divorce, as in the instant case, power to grant a separate maintenance must also be
lacking. The weakness of this argument lies in the assumption that the power to grant support in
a separate action is dependent upon a power to grant a divorce. That the one is not dependent
upon the other is apparent from the very nature of the marital obligations of the spouses. The

mere act of marriage creates an obligation on the part of the husband to support his wife. This
obligation is founded not so much on the express or implied terms of the contract of marriage as
on the natural and legal duty of the husband; an obligation, the enforcement of which is of such
vital concern to the state itself that the laws will not permit him to terminate it by his own
wrongful acts in driving his wife to seek protection in the parental home. A judgment for separate
maintenance is not due and payable either as damages or as a penalty; nor is it a debt in the
strict legal sense of the term, but rather a judgment calling for the performance of a duty made
specific by the mandate of the sovereign. This is done from necessity and with a view to
preserve the public peace and the purity of the wife; as where the husband makes so base
demands upon his wife and indulges in the habit of assaulting her. The pro tanto separation
resulting from a decree for separate support is not an impeachment of that public policy by
which marriage is regarded as so sacred and inviolable in its nature; it is merely a stronger
policy overruling a weaker one; and except in so far only as such separation is tolerated as a
means of preserving the public peace and morals may be considered, it does not in any respect
whatever impair the marriage contract or for any purpose place the wife in the situation of
a feme sole.
The foregoing are the grounds upon which our short opinion and order for judgment, heretofore
filed in this case, rest.
Torres, Johnson and Carson, JJ., concur.
FACTS: Luisa Goitia y de la Camara, petitioner, and Jose Campos y Rueda, respondent, were
married on January 7, 1915 and had a residence at 115 Calle San Marcelino Manila. They
stayed together for a month before petitioner returned to her parents home. Goitia filed a
complaint against respondent for support outside the conjugal home. It was alleged that
respondent demanded her to perform unchaste and lascivious acts on his genital organs.
Petitioner refused to perform such acts and demanded her husband other than the legal and
valid cohabitation. Since Goitia kept on refusing, respondent maltreated her by word and deed,
inflicting injuries upon her lops, face and different body parts. The trial court ruled in favor of
respondent and stated that Goitia could not compel her husband to support her except in the
conjugal home unless it is by virtue of a judicial decree granting her separation or divorce from
respondent. Goitia filed motion for review.
ISSUE: Whether or not Goitia can compel her husband to support her outside the conjugal
home.
HELD: The obligation on the part of the husband to support his wife is created merely in the act
of marriage. The law provides that the husband, who is obliged to support the wife, may fulfill
the obligation either by paying her a fixed pension or by maintaining her in his own home at his
option. However, this option given by law is not absolute. The law will not permit the husband
to evade or terminate his obligation to support his wife if the wife is driven away from the
conjugal home because of his wrongful acts. In the case at bar, the wife was forced to leave the
conjugal abode because of the lewd designs and physical assault of the husband, she can
therefore claim support from the husband for separate maintenance even outside the conjugal
home.
WARREN v. The STATE. Decided: August 31, 2000
Nicholas E. White, Hawkinsville, for appellant. Charles H. Weston, District Attorney, Myra Y.
Christian, Howard Z. Simms, Assistant District Attorneys, for appellee.
A Bibb County jury found Carlos Warren guilty of five counts of aggravated assault and one
count of participation in gang activity in connection with the drive-by shooting of a house on May
6, 1996.1 Because the evidence was sufficient and the trial court did not err, we affirm.On
appeal, Warren asserts that the evidence was insufficient to support his convictions and that the
trial court erred by failing to hold an evidentiary hearing on his motion for a continuance due to
pretrial publicity.
Initially, we note that the relevant background facts are set forth in Warren v. State,1.2 We
need not repeat those facts here.in which we affirmed the conviction of Carlos Warren's
brother and co-defendant, Kareem Warren.
Even though there was no evidence as to which of the occupants of the car actually fired the
shots, the evidence was sufficient to tie Warren to the drive-by shooting, either as the shooter or
as a party to the crime. Finally, two of the victims testified that Warren apologized to them after
the incident, saying that the shooting was meant for someone else. Another victim told police
that she saw Warren in the car immediately before the shooting. One of the victims heard a
pistol cock after he exchanged a few words with Warren. However, two of the victims testified
that they saw Warren, along with his brother and a third person, in the car no more than fifteen
minutes before the shooting and that Warren had a gun in his hand. Warren contends that
several of the victims of the drive-by shooting were unable to identify him as one of the
occupants of the car in question. (a)3 Although Warren argues that the victims' testimony is
not believable because they were admitted gang members, the credibility of witnesses is a
matter for the jury.4
Rather, the State had to show that Warren committed a felony for the benefit of, at the direction
of, or in association with any criminal street gang with the specific intent to promote, further, or
assist in any criminal conduct by gang members.16-15-4(b)(1), under which Warren was
charged and which was applicable at the time, did not require the State to prove that Warren
was a member of a gang. But former OCGA Warren also contends that the evidence was
insufficient to support his conviction of participation in gang activity because there was no
evidence that he was a member of a gang. (b)5 The record shows that the State met that
burden here.
A bystander found a blue bandanna-which, according to Officer Fletcher, is a symbol of the
Bloomfield Gangster Crips-at the scene of that shooting. Someone-identified by one of the
victims as Kareem Warren-shot at the group from inside the car. Three of the victims testified
that, about a month before the May 6 drive-by shooting, they and other Folks Nation members
were walking to a basketball court when a car belonging to Carlos Warren drove by. One of
the victims of the May 6 shooting testified that he knew there was a problem between Kareem
Warren and another Folks Nation member who was not present at the house that day. Macon
Police Officer Karl Fletcher testified that Kareem Warren was a member of the Bloomfield

Gangster Crips, a rival gang. The evidence showed that the victims were members of Folks
Nation, a street gang. The State's theory of the case was that the May 6 drive-by shooting was
an attempt at revenge by members of one gang against a member of a rival gang. 6 Thus,
there was sufficient evidence for the jury to conclude that Carlos Warren committed the
aggravated assaults in connection with his brother, a gang member, to promote, further, or assist
gang activity.Finally, two of the victims testified that Carlos Warren apologized to them after the
May 6 shooting and said that it was meant for someone else.
To obtain a continuance or change of venue due to pretrial publicity, the defendant must show
either that the setting of the trial is inherently prejudicial or that the jury selection process
showed actual prejudice that rendered a fair trial impossible.Warren argues that the trial court
violated his due process rights by refusing to grant an evidentiary hearing on his motion for a
continuance due to pretrial publicity. 2.7 Whether to grant such a motion is within the sound
discretion of the trial court.8
Before trial, the trial court instructed the jurors to ignore any media coverage of the case.
Counsel for all defendants specifically stated that they had no objection to the impaneling of the
jurors, and counsel did not renew their motion for continuance. A full panel of jurors was then
chosen. The trial court denied the motion at that time, stating, The test is to try to impanel an
impartial jury and if you can't do so, then a continuance may be warranted. Counsel did not
request an evidentiary hearing. Counsel argued that recent articles in the local paper would
make it very difficult to impanel an impartial jury. Counsel for Kareem Warren argued the
motion for continuance on behalf of all defendants prior to jury selection.
The mere existence of newspaper stories about a case does not render the trial setting
inherently prejudicial.Under these circumstances, the trial court did not abuse its discretion by
denying the motion for continuance or by failing to hold an evidentiary hearing. 9 Moreover,
counsel were able to agree on a panel of jurors and raised no objections concerning their
impartiality.And, as the jury selection was not transcribed, there is no evidence in the record
that the jurors were actually prejudiced by the newspaper articles in question, or even that they
had read them. 10
Judgment affirmed.
Thurman v. City of Torrington United States District Court D. Connecticut October 23, 1984
595 F.Supp. 1521 [The following are excerpts from the case. The complete case is available in
the optional reading section.]
RULING ON MOTION TO DISMISS
BLUMENFELD, Senior District Judge. The plaintiffs have brought this action pursuant to 42
U.S.C. 1983, 1985, 1986 and 1988, as well as the fifth, ninth, and fourteenth amendments
to the Constitution, alleging that their constitutional rights were violated by the nonperformance
or malperformance of official duties by the defendant police officers. In addition, the plaintiffs
seek to hold liable the defendant City of Torrington (hereinafter, the "City"). The defendant City
has filed a motion to dismiss the plaintiffs' complaint, or various claims therein, pursuant to Rule
12(b) of the Federal Rules of Civil Procedure.
On a motion to dismiss, the sole issue is whether under the facts alleged in the plaintiff's
complaint it appears to a certainty that the plaintiff is entitled to no relief. Holmes v. Silver Cross
Hospital of Joliet, Illinois, 340 F.Supp. 125 (N.D.Ill.1972). A complaint should not be dismissed
unless it appears that the plaintiff could prove no set of facts in support of her claim which would
entitle her to relief. U.S. Steel Corp. v. Multistate Tax Commission, 367 F.Supp. 107
(S.D.N.Y.1973). Furthermore, it is well settled that for purposes of a motion to dismiss, the well
pleaded material allegations of the complaint are taken as true. 2A Moore's Federal Practice
2267, 12.08 n. 3. Accordingly, the material facts of this case are as follows:
Between early October 1982 and June 10, 1983, the plaintiff, Tracey Thurman, a woman living
in the City of Torrington, and others on her behalf, notified the defendant City through the
defendant police officers of the City of repeated threats upon her life and the life of her child, the
plaintiff Charles J. Thurman, Jr., made by her estranged husband, Charles Thurman. Attempts to
file complaints by plaintiff Tracey Thurman against her estranged husband in response to his
threats of death and maiming were ignored or rejected by the named defendants and the
defendant City. An abbreviated chronology of the plaintiff's attempted and actual notifications of
the threats made against her and her son by her estranged husband to the defendant City and
police officers is appropriate for consideration of this motion. In October 1982, Charles Thurman
attacked plaintiff Tracey Thurman at the home of Judy Bentley and Richard St. Hilaire in the City
of Torrington. Mr. St. Hilaire and Ms. Bentley made a formal complaint of the attack to one of the
unnamed defendant police officers and requested efforts to keep the plaintiff's husband, Charles
Thurman, off their property. On or about November 5, 1982, Charles Thurman returned to the St.
Hilaire- Bentley residence and using physical force took the plaintiff Charles J. Thurman, Jr. from
said residence. Plaintiff Tracey Thurman and Mr. St. Hilaire went to Torrington police
headquarters to make a formal complaint. At that point, unnamed defendant police officers of the
City of Torrington refused to accept a complaint from Mr. St. Hilaire even as to trespassing. On
or about November 9, 1982, Charles Thurman screamed threats at Tracey while *1525 she was
sitting in her car. Defendant police officer Neil Gemelli stood on the street watching Charles
Thurman scream threats at Tracey until Charles Thurman broke the windshield of plaintiff Tracey
Thurman's car while she was inside the vehicle. Charles Thurman was arrested after he broke
the windshield, and on the next day, November 10, 1982, he was convicted of breach of peace.
He received a suspended sentence of six months and a two-year "conditional discharge," during
which he was ordered to stay completely away from the plaintiff Tracey Thurman and the
Bentley-St. Hilaire residence and to commit no further crimes. The court imposing probation
informed the defendants of this sentence.
On December 31, 1982, while plaintiff Tracey Thurman was at the Bentley-St. Hilaire residence,
Charles Thurman returned to said residence and once again threatened her. She called the
Torrington Police Department. One of the unnamed police officer defendants took the call, and,
although informed of the violation of the conditional discharge, made no attempt to ascertain
Charles Thurman's whereabouts or to arrest him.
Between January 1, 1983 and May 4, 1983, numerous telephone complaints to the Torrington
Police Department were taken by various unnamed police officers, in which repeated threats of

violence to the plaintiffs by Charles Thurman were reported and his arrest on account of the
threats and violation of the terms of his probation was requested.
On May 4 and 5, 1983, the plaintiff Tracey Thurman and Ms. Bentley reported to the Torrington
Police Department that Charles Thurman had said that he would shoot the plaintiffs. Defendant
police officer Storrs took the written complaint of plaintiff Tracey Thurman who was seeking an
arrest warrant for her husband because of his death threat and violation of his "conditional
discharge." Defendant Storrs refused to take the complaint of Ms. Bentley. Plaintiff Tracey
Thurman was told to return three weeks later on June 1, 1983 when defendant Storrs or some
other person connected with the police department of the defendant City would seek a warrant
for the arrest of her husband.
On May 6, 1983, Tracey filed an application for a restraining order against
Charles Thurman in the Litchfield Superior Court. That day, the court issued an ex parte
restraining order forbidding Charles Thurman from assaulting, threatening, and harrassing
Tracey Thurman. The defendant City was informed of this order.
On May 27, 1983, Tracey Thurman requested police protection in order to get to the Torrington
Police Department, and she requested a warrant for her husband's arrest upon her arrival at
headquarters after being taken there by one of the unnamed defendant police officers. She was
told that she would have to wait until after the Memorial Day holiday weekend and was advised
to call on Tuesday, May 31, to pursue the warrant request.
On May 31, 1983, Tracey Thurman appeared once again at the Torrington Police Department to
pursue the warrant request. She was then advised by one of the unnamed defendant police
officers that defendant Schapp was the only policeman who could help her and that he was on
vacation. She was told that she would have to wait until he returned. That same day, Tracey's
brother-in-law, Joseph Kocsis, called the Torrington Police Department to protest the lack of
action taken on Tracey's complaint. Although Mr. Kocsis was advised that Charles Thurman
would be arrested on June 8, 1983, no such arrest took place.
On June 10, 1983, Charles Thurman appeared at the Bentley-St. Hilaire residence in the early
afternoon and demanded to speak to Tracey. Tracey, remaining indoors, called the defendant
police department asking that Charles be picked up for violation of his probation. After about 15
minutes, Tracey went outside to speak to her husband in an effort to persuade him not to take or
hurt Charles Jr. Soon thereafter, Charles began to stab Tracey repeatedly in the chest, neck and
throat.
Approximately 25 minutes after Tracey's call to the Torrington Police Department *1526 and after
her stabbing, a single police officer, the defendant Petrovits, arrived on the scene. Upon the
arrival of Officer Petrovits at the scene of the stabbing, Charles Thurman was holding a bloody
knife. Charles then dropped the knife and, in the presence of Petrovits, kicked the plaintiff
Tracey Thurman in the head and ran into the Bentley-St. Hilaire residence. Charles returned
from within the residence holding the plaintiff Charles Thurman, Jr. and dropped the child on his
wounded mother. Charles then kicked Tracey in the head a second time. Soon thereafter,
defendants DeAngelo, Nukirk, and Columbia arrived on the scene but still permitted Charles
Thurman to wander about the crowd and to continue to threaten Tracey. Finally, upon
approaching Tracey once again, this time while she was lying on a stretcher, Charles Thurman
was arrested and taken into custody.
It is also alleged that at all times mentioned above, except for approximately two weeks
following his conviction and sentencing on November 10, 1982, Charles Thurman resided in
Torrington and worked there as a counterman and short order cook at Skie's Diner. There he
served many members of the Torrington Police Department including some of the named and
unnamed defendants in this case. In the course of his employment Charles Thurman boasted to
the defendant police officer patrons that he intended to "get" his wife and that he intended to kill
her.
I. Motion to Dismiss the Claims of Tracey Thurman
The defendant City now brings a motion to dismiss the claims against it. The City first argues
that the plaintiff's complaint should be dismissed for failure to allege the deprivation of a
constitutional right. Though the complaint alleges that the actions of the defendants deprived the
plaintiff Tracey Thurman of her constitutional right to equal protection of the laws, the defendant
City argues that the equal protection clause of the fourteenth amendment "does not guarantee
equal application of social services." Defendant's Memorandum at 4. Rather, the defendant City
argues that the equal protection clause "only prohibits intentional discrimination that is racially
motivated" citing Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct.
555, 50 L.Ed.2d 450 (1979) and Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d
547 (1976).
The defendant City's argument is clearly a misstatement of the law. The application of the equal
protection clause is not limited to racial classifications or racially motivated discrimination. The
equal protection clause will be applied to invalidate state laws which classify on the basis of
alienage for the purpose of the distribution of economic benefits unless that law is necessary to
promote a compelling or overriding state interest. Graham v. Richardson, 403 U.S. 365, 91 S.Ct.
1848, 29 L.Ed.2d 534 (1971); In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910
(1973). The equal protection clause will be applied to strike down classifications based on
legitimacy at birth if they are not related to a legitimate state interest. Pickett v. Brown, 462 U.S.
1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983); Mills v. Habluetzel, 456 U.S. 91, 97-99, 102 S.Ct.
1549, 1553-1554, 71 L.Ed.2d 770 (1982). Classifications on the basis of gender will be held
invalid under the equal protection clause unless they are substantially related to an important
governmental objective, Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397
(1976), reh'g denied, 429 U.S. 1124, 97 S.Ct. 1161, 51 L.Ed.2d 574 (1977). And lastly, the equal
protection clause will be applied to strike down classifications which are not rationally related to
a legitimate governmental purpose. San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 55, 93
S.Ct. 1278, 1308, 36 L.Ed.2d 16, reh'g denied, 411 U.S. 959, 93 S.Ct. 1919, 36 L.Ed.2d 418
(1973).
In the instant case, the plaintiffs allege that the defendants use an administrative classification
that manifests itself in discriminatory treatment violative of the equal protection clause. Police
protection in the City of Torrington, they argue, is *1527 fully provided to persons abused by
someone with whom the victim has no domestic relationship. But the Torrington police have

consistently afforded lesser protection, plaintiffs allege, when the victim is (1) a woman abused
or assaulted by a spouse or boyfriend, or (2) a child abused by a father or stepfather. The issue
to be decided, then, is whether the plaintiffs have properly alleged a violation of the equal
protection clause of the fourteenth amendment.
Police action is subject to the equal protection clause and section 1983 whether in the form of
commission of violative acts or omission to perform required acts pursuant to the police officer's
duty to protect. Smith v. Ross, 482 F.2d 33, 36-37 (6th Cir.1973) ("law enforcement officer can
be liable under 1983 when by his inaction he fails to perform a statutorily imposed duty to
enforce the laws equally and fairly, and thereby denies equal protection."); Byrd v. Brishke, 466
F.2d 6, 11 (7th Cir.1972) (police officer liable under section 1983 for failing to prevent beating of
plaintiff by other officers); Azar v. Conley, 456 F.2d 1382, 1387 (6th Cir.1972). See also Cooper
v. Molko, 512 F.Supp. 563, 567 (N.D.Cal.1981), and Huey v. Barloga, 277 F.Supp. 864, 872-73
(N.D.Ill.1967) (failure of city officials and police officers to perform their duty of taking reasonable
measures to protect personal safety of persons whom they know may be attacked is a denial of
equal protection of the laws and is actionable under section 1983). City officials and police
officers are under an affirmative duty to preserve law and order, and to protect the personal
safety of persons in the community. Id. at 872. This duty applies equally to women whose
personal safety is threatened by individuals with whom they have or have had a domestic
relationship as well as to all other persons whose personal safety is threatened, including
women not involved in domestic relationships. If officials have notice of the possibility of attacks
on women in domestic relationships or other persons, they are under an affirmative duty to take
reasonable measures to protect the personal safety of such persons in the community. Failure to
perform this duty would constitute a denial of equal protection of the laws.
Although the plaintiffs point to no law which on its face discriminates against victims abused by
someone with whom they have a domestic relationship, the plaintiffs have alleged that there is
an administrative classification used to implement the law in a discriminatory fashion. It is well
settled that the equal protection clause is applicable not only to discriminatory legislative action,
but also to discriminatory governmental action in administration and enforcement of the law. See
Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Britton v. Rogers, 631 F.2d
572, 577 (8th Cir.1980), cert. denied, 451 U.S. 939, 101 S.Ct. 2021, 68 L.Ed.2d 327 (1981); and
Flipside, Hoffman Estates, Inc. v. Village of Hoffman Estates, 485 F.Supp. 400, 409 (1980)
(administrative classifications can give rise to an equal protection claim), order rev'd on other
grounds, 639 F.2d 373 (7th Cir.1981), judgment rev'd on other grounds, 455 U.S. 489, 102 S.Ct.
1186, 71 L.Ed.2d 362, reh'g denied, 456 U.S. 950, 102 S.Ct. 2023, 72 L.Ed.2d 476 (1982). Here
the plaintiffs were threatened with assault in violation of Connecticut law. Over the course of
eight months the police failed to afford the plaintiffs protection against such assaults, and failed
to take action to arrest the perpetrator of these assaults. The plaintiffs have alleged that this
failure to act was pursuant to a pattern or practice of affording inadequate protection, or no
protection at all, to women who have complained of having been abused by their husbands or
others with whom they have had close relations. Amended Complaint, 13. Such a practice is
tantamount to an administrative classification used to implement the law in a discriminatory
fashion.
If the City wishes to discriminate against women who are the victims of domestic violence, it
must articulate an important governmental interest for doing so. Craig v. Boren, 429 U.S. 190,
197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976), reh'g denied, *1528429 U.S. 1124, 97 S.Ct.
1161, 51 L.Ed.2d 574 (1977); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).
In its memorandum and at oral argument the City has failed to put forward any justification for its
disparate treatment of women. [FN1] Such a practice was at one time sanctioned by law:
FN1. It may develop that the classification in the instant case is not one based on gender, but
instead consists of all spouses who are victims of domestic violence--male and female. At this
stage of the proceedings, however, plaintiffs' allegations of gender-based discrimination will be
taken as true. In one study of interspousal abuse it is claimed that "in 29 out of every 30 such
cases the husband stands accused of abusing his wife." Leeds, Family Offense Cases in the
Family Court System: A Statistical Description, Henry Street Settlement Urban Life Center, Nov.
1978, p. ii, cited in Bruno v. Codd, 47 N.Y.2d 582, 419 N.Y.S.2d 901, 902 n. 2, 393 N.E.2d 976,
977 n. 2.
English common law during the eighteenth century recognized the right of husbands to
physically discipline their wives. Subsequently, American common law in the early nineteenth
century permitted a man to chastise his wife " 'without subjecting himself to vexatious
prosecutions for assault and battery, resulting in the discredit and shame of all parties
concerned.' " Some restrictions on the right of chastisement evolved through cases which
defined the type, severity, and timing of permissible wife-beating.... B. Finesmith, Police
Response to Battered Women: Critique and Proposals for Reform, 14 Seton Hall L.Rev. 74, 79
(1983) (citations omitted). In our own country a husband was permitted to beat his wife so long
as he didn't use a switch any bigger around than his thumb. In 1874 the Supreme Court of North
Carolina nullified the husband's right to chastise his wife "under any circumstances." But the
court's ruling became ambiguous when it added, "If no permanent injury has been inflicted, nor
malice, cruelty, nor dangerous violence shown by the husband, it is better to draw the curtain,
shut out the public gaze, and leave the parties to forgive and forget." Del Martin, "Scope of the
Problem," Battered Women: Issues of Public Policy (1978) (Consultation Sponsored by the
United States Commission on Civil Rights) (hereinafter "Consultation") at 6.
Today, however, any notion of a husband's prerogative to physically discipline his wife is an
"increasingly outdated misconception." Craig v. Boren, 429 U.S. at 198-99, 97 S.Ct. at 457-58.
As such it must join other "archaic and overbroad" premises which have been rejected as
unconstitutional. Crawford v. Cushman, 531 F.2d 1114 (2d Cir.1976) (rejecting the notion that
pregnancy renders servicewomen unfit and requires discharge); Weinberger v. Wiesenfeld, 420
U.S. 636, 643, 95 S.Ct. 1225, 1230, 43 L.Ed.2d 514 (1975) (rejecting proposition that the
earnings of female wage earners do not significantly contribute to their families' support);
Frontiero v. Richardson, 411 U.S. 677, 689, 93 S.Ct. 1764, 1771, 36 L.Ed.2d 583 (1973)
(rejecting assertion that female spouses of servicemen would normally be dependent upon their
husbands while male spouses of servicewomen would not be dependent upon their wives);
Stanton v. Stanton, 421 U.S. 7, 14-15, 95 S.Ct. 1373, 1377-1378, 43 L.Ed.2d 688 (1975)

(rejecting "old notion" that the female is destined solely for the home and the rearing of the
family and the male only for the marketplace and the world of ideas).
A man is not allowed to physically abuse or endanger a woman merely because he is her
husband. Concommitantly, a police officer may not knowingly refrain from interference in such
violence, and may not "automatically decline to make an arrest simply because the assaulter
and his victim are married to each other." Bruno v. Codd, 90 Misc.2d 1047, 1049, 396 N.Y.S.2d
974, 976 (1976), rev'd on other grounds, 64 App.Div.2d 502, 407 N.Y.S.2d 165 (1978), aff'd, 47
N.Y.2d 582, 419 N.Y.S.2d 901, 393 N.E.2d 976 (1979). Such inaction on the part of the officer is
a denial of the equal protection of the laws.*1529
In addition, any notion that defendants' practice can be justified as a means of promoting
domestic harmony by refraining from interference in marital disputes, has no place in the case at
hand. [FN2] Rather than evidencing a desire to work out her problems with her husband
privately, Tracey pleaded with the police to offer her at least some measure of protection.
Further, she sought and received a restraining order to keep her
husband at a distance. Finally, it is important to recall here the Supreme Court's dictum in Reed
v. Reed, 404 U.S. at 77, 92 S.Ct. at 254, that "whatever may be said as to the positive values of
avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely
on the basis of sex." Accordingly, the defendant City of Torrington's motion to dismiss the plaintiff
Tracey Thurman's complaint on the basis of failure to allege violation of a constitutional right is
denied.
FN2. See Finesmith, supra, at 82 (referring to the factor of "Lack of Social/Legal Resources" as
one of the variety of factors which combine to support the maintenance of violent
households--"the societal and prosecutorial view that domestic abuse is a minor problem best
handled in the home"). Cf. id. at 80, citing Eisenberg & Micklow, The Assaulted Wife: Catch 22
Revisited, 3 Women's Rights L.Rep. 138, 146 (1977). The "banner of supporting the marital
relationship and domestic harmony" has also been seen as a justification for interspousal tort
immunity. According to one commentator, that doctrine "appeared in court decisions of the early
1900's to prevent battered wives from bringing actions in tort against their abusing spouses."
...
Summary In November 2003 the Las Vegas Metropolitan Police Department executed a decoy
operation targeting the crime of robbery. An officer was posed on a public street dressed as an
intoxicated, off-duty casino dealer with a stack of twenty one-dollar bills visible in his left dress
shirt pocket. The defendant approached the officer, made conversation and casually removed
the dollar bills while placing his arm around the officer. When the officer acted as though he was
turning his head to catch the defendant in the act, the defendant pushed the officers head away
with his forearm twice. The defendant was arrested and charged with robbery and conspiracy to
commit robbery. He pled not guilty. The State informed the court that if the defendant used an
entrapment defense it intended to use a certified minute order from a prior California conviction
as rebuttal to show predisposition. Defense counsel said he would pursue an entrapment
defense and objected to the sufficiency of the minute orders ability to demonstrate that the
defendant was the named individual. The court ruled that the State could use the minute order
for rebuttal to an entrapment defense. Defense counsel informed the court that the defendant
would testify and asked whether the State intended to use the minute order to impeach. The
State said it would. Defense renewed its objection to the minute order based on identity. The
court ruled that if the defendant testified, the State could use the minute order to impeach his
testimony. The State informed the court that it had evidence of the defendants 1984 Washington
conviction that it also wanted to use for rebuttal and impeachment. The defense objected. The
court ruled that the Washington conviction was too remote in time. The Washington conviction
remained relevant, however, because the fingerprints on the Washington conviction had the
same FBI fingerprint identification number as those on the California certified minute order, thus
it served to indicate that he was the individual named in the minute order. The defendant did not
testify and declined the courts invitation to request any jury instructions on entrapment. The
defendant was found guilty of robbery and not guilty of conspiracy to commit robbery. The
defendant appealed the trial courts ruling on the admissibility of the minute order. The Nevada
Supreme Court adopted the view that a defendant preserves his right to appeal an in limine
ruling based on improper impeachment, when he does not testify, so long as he makes an offer
of proof as to what his testimony would have been absent the ruling. Additionally, they held that
a certified minute may be used for rebuttal and not for impeachment but that its admission for
impeachment here was harmless error. 1 By Charles R. Cordova, Jr. 2 Issues and Disposition
Issues (1) Does Nevada follow the holding of Luce v. U.S. , 2 which states that a defendant
waives his right to appeal based on improper impeachment when he fails to testify? (2) May the
State use a certified minute order to show predisposition in rebutting an entrapment defense?
(3) May the State use a certified minute order to impeach the testimony of the defendant?
Disposition (1) The Nevada Supreme Court held that Nevada does not follow the Luce v. U.S.
rule and instead follows the holding of Wickham v. State. 3 A defendant does not waive his right
to appeal based on improper impeachment if he makes an offer of proof outlining his intended
testimony and it is clear from the record that he would have testified, but for the in limine ruling
of the trial court. (2) The State may use a certified minute order to show predisposition in
rebutting an entrapment defense under NRS 48.055(b) and according to the three part test
enumerated in Foster v. State. 4 (3) The State may not use a certified minute order to impeach
the testimony of a defendant under NRS 50.095. The court determined that the statute instead
requires a judgment of conviction. Here, however, since the certified minute order was
admissible for rebuttal, the court determined that its admission for impeachment purposes was
harmless error.
Commentary State of the Law Before Warren The court decided an issue similar to issue (1)
above in Pineda v. State.5 In Pineda the court held that a defendant preserves his right to
appeal even if he first introduces evidence of his prior convictions that was ruled admissible
during pretrial motions over his objection.6 The court in the present case clarified that while
similar to Pineda, the question here is distinct 2 469 U.S. 38 (1984). 3 Id.; 770 P.2d 757 (Alaska
Ct. App. 1989). 4 116 Nev. 1088, 13 P.3d 61 (2000). 5 120 Nev. 204, 88 P.3d 827 (2004). 6 Id. 3
because it presents an additional issue. In Pineda the concern was that without the defendants
testimony the court would not be able to properly weigh the probative value against its

prejudicial effect.7 In addition to that concern, the circumstances of this case raise the issue of
the courts ability to conduct harmless error review, thus Pineda did not control.
Other Jurisdictions Most states facing the issue have adopted the holding of Luce v. U.S..
However, a significant minority have declined. The Court in Luce held that a defendant must
testify in order to preserve for appeal a claim of improper impeachment with a prior conviction.8
They determined that any harm that may result from a trial courts in limine ruling is purely
speculative unless and until the defendant actually testifies.9 Nevada and the other jurisdictions
rejecting the Luce rule have determined that there are other means to obtain adequate
information such that an appellate court may make a determination of whether the probative
value outweighs the prejudicial effect.
Effect of Warren on Current Law Warren makes it clear when a defendant may decline to
testify and yet preserve his right to appeal the admission of impeachment evidence. So long as
the defendant makes an offer of proof as to what his testimony would have been in the absence
of the in limine ruling, his appeal is preserved.
Unanswered Questions None.
Conclusion The Nevada Supreme Court adopted a more lenient rule of criminal appeals than
the U.S. Supreme Courts rule in Luce v. U.S.10 They found that there would be an adequate
record produced for appeal if the defendant makes an offer of proof and that this would better
allow them to conduct harmless error review. The court clarified the admissibility of a certified
minute order for purposes of rebuttal and impeachment. A certified minute order may properly be
admitted to show predisposition in rebutting an entrapment defense under NRS 48.055(b). A
certified minute order may not be properly admitted to impeach the testimony of a defendant
under NRS 50.095.
III. Have the Plaintiffs Properly Alleged a Custom or Policy on the Part of the City of
Torrington?
The plaintiffs have alleged in paragraph 13 of their complaint as follows:
During the period of time described herein, and for a long time prior thereto, the defendant City
of Torrington acting through its Police Department, condoned a pattern or practice of affording
inadequate protection, or no protection at all, to women who have complained of having been
abused by their husbands or others with whom they have had close relations. Said pattern,
custom or policy, well known to the individual defendants, was the basis on which they ignored
said numerous complaints and reports of threats to the plaintiffs with impunity. *1530
While a municipality is not liable for the constitutional torts of its employees on a respondeat
superior theory, a municipality may be sued for damages under section 1983 when "the action
that is alleged to be unconstitutional implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by the body's officers" or is "visited
pursuant to governmental 'custom' even though such a custom has not received formal approval
through the body's official decision-making channels." Monell v. New York City Department of
Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1978). [FN3]
FN3. Such a custom or policy, if found to exist in the instant case, would not be unique. See
Finesmith, supra, at 84-101, where the author outlines the official police guidelines for dealing
with domestic disputes in 30 major American cities.
Some degree of specificity is required in the pleading of a custom or policy on the part of a
municipality. Mere conclusory allegations devoid of factual content will not suffice. See Schramm
v. Krischell, 84 F.R.D. 294 (D.Conn.1979). As this court has pointed out, a plaintiff must typically
point to facts outside his own case to support his allegation of a policy on the part of a
municipality. Appletree v. City of Hartford, 555 F.Supp. 224, 228 (D.Conn.1983).
In the instant case, however, the plaintiff Tracey Thurman has specifically alleged in her
statement of facts a series of acts and omissions on the part of the defendant police officers and
police department that took place over the course of eight months. From this particularized
pleading a pattern emerges that evidences deliberate indifference on the part of the police
department to the complaints of the plaintiff Tracey Thurman and to its
duty to protect her. Such an ongoing pattern of deliberate indifference raises an inference of
"custom" or "policy" on the part of the municipality. See Estelle v. Gamble, 429 U.S. 97, 106, 97
S.Ct. 285, 292, 50 L.Ed.2d 251 (1976), reh'g denied, 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d
785 (1977) and Turpin v. Mailet, 619 F.2d 196, 201-02 (2d Cir.), cert. denied, 449 U.S. 1016, 101
S.Ct. 577, 66 L.Ed.2d 475 (1980). Furthermore, this pattern of inaction climaxed on June 10,
1983 in an incident so brutal that under the law of the Second Circuit that "single brutal incident
may be sufficient to suggest a link between a violation of constitutional rights and a pattern of
police misconduct." Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.), cert. denied, 444 U.S. 980,
100 S.Ct. 483, 62 L.Ed.2d 407 (1979). Finally, a complaint of this sort will survive dismissal if it
alleges a policy or custom of condoning police misconduct that violates constitutional rights and
alleges "that the City's pattern of inaction caused the plaintiffs any compensable injury." Batista
v. Rodriguez, 702 F.2d 393, 397-98 (2d Cir.1983); Escalera v. New York City Housing Authority,
425 F.2d 853, 857 (2d Cir.), cert. denied, 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1970) ("an
action, especially under the Civil Rights Act, should not be dismissed at the pleadings stage
unless it appears to a certainty that plaintiffs are entitled to no relief under any state of the facts,
which could be proved in support of their claims"). Accordingly, defendant City of Torrington's
motion to dismiss the plaintiffs claims against it, on the ground that the plaintiffs failed to
properly allege a custom or policy on the part of the municipality, is denied.
FACTS Charles and Tracey Thurman, estranged husband and wife, had a violent separation. In
October 1982, Charles attacked Tracey and, using physical force took Charles Thurman, Jr.,
from the residence. At the time, Tracey went to the Torrington Police Department. The
department refused to accept the complaint. On November 9, 1982, Charles broke the
windshield of Traceys car while she was sitting in it. He was convicted of breach of the peace,
and received a suspended sentence of six months in jail and a two year conditional discharge.
During the two-year period, he was to stay completely away from Tracey and commit no further
crimes. During the period of conditional discharge, Tracey called the police department several
times complaining that Charles was violating the terms of the discharge. The police refused to
do anything about Traceys complaints. At one point, Charles threatened to kill Tracey. At that
time, Tracey attempted to get Charles arrested for violating his conditional discharge. The police

department refused to help Tracey. Officers repeatedly asked her to return to the police station
at a later date. Tracey pursued her attempts to get Charles arrested, but to no avail. On June 10,
1983, Charles appeared at the residence where Tracey was staying. Tracey, remaining indoors,
called the police department and asked that Charles be arrested for violation of the conditional
discharge. After about 15 minutes, Tracey went outside to persuade him not to take her or hurt
Charles, Jr. Soon thereafter, Charles began to stab Tracey in the chest, neck, and throat.
Approximately 25 minutes after Traceys call, a single police officer arrived at the scene. When
the officer arrived, Charles dropped the knife, and in the officers presence, kicked Tracey in the
head and ran into the house. Charles returned from the house holding Charles, Jr., and dropped
the child on his wounded mother. Charles then kicked Tracey in the head a second time. Soon
thereafter, three more police officers arrived at the scene, but continued to let Charles wander
about the crowd and to continue to threaten Tracey. Finally, when Charles approached Tracey
again (this time, she was lying on a stretcher) Charles was arrested and taken into custody.
ISSUE Did the conduct of the Torrington Police Department deprive Tracey of her right to equal
protection?
HOLDING Yes.
REASONING The court found that Tracey was discriminated against because the violence was
a domestic dispute. The evidence showed that police protection was fully provided to persons
abused by someone with whom the victim had no domestic relationship, but the police
consistently afforded lesser protection when the victim was a woman abused or assaulted by a
spouse or boyfriend or when a child was abused the a father or stepfather. The court awarded
Tracey $2.3 million.
PEOPLE v. LIBERTA 64 N.Y.2d 152, 474 N.E.2d 567, 485 N.Y.S.2d 207(1984) WACHTLER,
Judge Defendant Mario Liberta and Denise Liberta were married in 1978. Shortly after the birth
of their son, in October of that year, Mario began to beat Denise. In early 1980 Denise brought a
proceeding in the Family Court in Erie County seeking protection from the defendant. On April
30, 1980 a temporary order of protection was issued to her by the Family Court. Under this
order, the defendant was to move out and remain away from the family home, and stay away
from Denise. The order provided that the defendant could visit with his son once each weekend.
On the weekend of March 21, 1981, Mario, who was then living in a motel, did not visit his son.
On Tuesday, March 24, 1981 he called Denise to ask if he could visit his son on that day. Denise
would not allow the defendant to come to her house, but she did agree to allow him to pick up
their son and her and take them both back to his motel after being assured that a friend of his
would be with them at all times. The defendant and his friend picked up Denise and their son
and the four of them drove to defendant's motel. When they arrived at the motel the friend left.
As soon as only Mario, Denise, and their son were alone in the motel room, Mario attacked
Denise, threatened to kill her, and forced her to perform fellatio on him and to engage in sexual
intercourse with him. The son was in the room during the entire episode, and the defendant
forced Denise to tell their son to watch what the defendant was doing to her. The defendant
allowed Denise and their son to leave shortly after the incident. Denise, after going to her
parents' home, went to a hospital to be treated for scratches on her neck and bruises on her
head and back, all inflicted by her husband. She also went to the police station, and on the next
day she swore out a felony complaint against the defendant. On July 15, 1981 the defendant
was indicted for rape in the first degree and sodomy in the first degree. Section 130.35 of the
Penal Law provides in relevant part that A male is guilty of rape in the first degree when he
engages in sexual intercourse with a female . . . by forcible compulsion. Female, for purposes
of the rape statute, is defined as any female person who is not married to the actor (Penal Law,
130.00, subd. 4). . . . [D]ue to the not married language in the definitions of female and
deviate sexual intercourse, there is a marital exemption for both forcible rape and forcible
sodomy. The marital exemption itself, however, has certain exceptions. For purposes of the rape
and sodomy statutes, a husband and wife are considered to be not married if at the time of the
sexual assault they are living apart . . . pursuant to a valid and effective: (i) order issued by a
court of competent jurisdiction which by its terms or in its effect requires such living apart. We
first address the defendant's argument that, despite the order of protection, he was within the
marital exemption to rape and sodomy and thus could not be prosecuted for either crime. . . .
We agree with the Appellate Division that the order of protection in the present case falls
squarely within the first of these situations. [The defendant then argued that New York law
violated equal protection by punishing rape by unmarried men but not by married men with
respect to their wives.] As noted above, under the Penal Law a married man ordinarily cannot be
convicted of forcibly raping or sodomizing his wife. This is the so-called marital exemption for
rape FN3 (see 1881 Penal Code, tit. X, ch. II, 278). Although a marital exemption was not
explicit in earlier rape statutes (see 1863 Rev.Stats. part 4, ch. I, tit. 2, art. 2, 22), an 1852
treatise stated that a man could not be guilty of raping his wife (Barbour, Criminal Law of State
of New York [2d ed.], p. 69). The assumption, even before the marital exemption was codified,
that a man could not be guilty of raping his wife, is traceable to a statement made by the 17th
century English jurist Lord Hale, who wrote: [T]he husband cannot be guilty of a rape committed
by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife
hath given up herself in this kind unto her husband, which she cannot retract (1 Hale, History of
Pleas of the Crown, p. 629). Although Hale cited no authority for his statement it was relied on
by State Legislatures which enacted rape statutes with a marital exemption and by courts which
established a common-law exemption for husbands. Presently, over 40 States still retain some
form of marital exemption for rape. While the marital exemption is subject to an equal protection
challenge, because it classifies unmarried men differently than married men, the equal
protection clause does not prohibit a State from making classifications, provided the statute
does not arbitrarily burden a particular group of individuals (Reed v. Reed, 404 U.S. 71). Where
a statute draws a distinction based upon marital status, the classification must be reasonable
and must be based upon some ground of difference that rationally explains the different
treatment We find that there is no rational basis for distinguishing between marital rape and
nonmarital rape. The various rationales which have been asserted in defense of the exemption
are either based upon archaic notions about the consent and property rights incident to marriage
or are simply unable to withstand even the slightest scrutiny. We therefore declare the marital

exemption for rape in the New York statute to be unconstitutional. Lord Hale's notion of an
irrevocable implied consent by a married woman to sexual intercourse has been cited most
frequently in support of the marital exemption (Equal Protection Considerations, supra, n. 6, 16
N.Eng.L.Rev., at p. 21). Any argument based on a supposed consent, however, is untenable.
Rape is not simply a sexual act to which one party does not consent. Rather, it is a degrading,
violent act which violates the bodily integrity of the victim and frequently causes severe, longlasting physical and psychic harm. To ever imply consent to such an act is irrational and absurd.
Other than in the context of rape statutes, marriage has never been viewed as giving a husband
the right to coerced intercourse on demand. Certainly, then, a marriage license should not be
viewed as a license for a husband to forcibly rape his wife with impunity. A married woman has
the same right to control her own body as does an unmarried woman. If a husband feels
aggrieved by his wife's refusal to engage in sexual intercourse, he should seek relief in the
courts governing domestic relations, not in violent or forceful self-help. The other traditional
justifications for the marital exemption were the common-law doctrines that a woman was the
property of her husband and that the legal existence of the woman was incorporated and
consolidated into that of the husband (1 Blackstone's Commentaries [1966 ed.], p. 430). Both
these doctrines, of course, have long been rejected in this State. Indeed, [n]owhere in the
common-law world-[or] in any modern society-is a woman regarded as chattel or demeaned by
denial of a separate legal identity and the dignity associated with recognition as a whole human
being. Because the traditional justifications for the marital exemption no longer have any
validity, other arguments have been advanced in its defense. The first of these recent rationales,
which is stressed by the People in this case, is that the marital exemption protects against
governmental intrusion into marital privacy and promotes reconciliation of the spouses, and thus
that elimination of the exemption would be disruptive to marriages. While protecting marital
privacy and encouraging reconciliation are legitimate State interests, there is no rational relation
between allowing a husband to forcibly rape his wife and these interests. The marital exemption
simply does not further marital privacy because this right of privacy protects consensual acts,
not violent sexual assaults. Just as a husband cannot invoke a right of marital privacy to escape
liability for beating his wife, he cannot justifiably rape his wife under the guise of a right to
privacy. Similarly, it is not tenable to argue that elimination of the marital exemption would
disrupt marriages because it would discourage reconciliation. Clearly, it is the violent act of rape
and not the subsequent attempt of the wife to seek protection through the criminal justice
system which disrupts a marriage. Moreover, if the marriage has already reached the point
where intercourse is accomplished by violent assault it is doubtful that there is anything left to
reconcile. This, of course, is particularly true if the wife is willing to bring criminal charges
against her husband which could result in a lengthy jail sentence. Another rationale sometimes
advanced in support of the marital exemption is that marital rape would be a difficult crime to
prove. A related argument is that allowing such prosecutions could lead to fabricated complaints
by vindictive wives. The difficulty of proof argument is based on the problem of showing lack of
consent. Proving lack of consent, however, is often the most difficult part of any rape
prosecution, particularly where the rapist and the victim had a prior relationship. Similarly, the
possibility that married women will fabricate complaints would seem to be no greater than the
possibility of unmarried women doing so. . . . The final argument in defense of the marital
exemption is that marital rape is not as serious an offense as other rape and is thus adequately
dealt with by the possibility of prosecution under criminal statutes, such as assault statutes,
which provide for less severe punishment. The fact that rape statutes exist, however, is a
recognition that the harm caused by a forcible rape is different, and more severe, than the harm
caused by an ordinary assault. . .
Moreover, there is no evidence to support the argument that marital rape has less severe
consequences than other rape. On the contrary, numerous studies have shown that marital rape
is frequently quite violent and generally has more severe, traumatic effects on the victim than
other rape. . .. . . . Justice Holmes wrote: It is revolting to have no better reason for a rule of law
than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon
which it was laid down have vanished long since, and the rule simply persists from blind
imitation of the past (Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 469). This statement is
an apt characterization of the marital exemption; it lacks a rational basis, and therefore violates
the equal protection clauses of both the Federal and State Constitutions.
Facts. Defendant Mario Liberta and Denise Liberta married in 1978. Defendant began to beat
Denise shortly after the birth of their son in October of that year. In 1980 Denise received a
temporary order of protection from Family Court. The order required defendant to move out and
remain away from the family home and Denise. It allowed defendant to visit his son once each
weekend. On the weekend of March 21, 1981 defendant did not visit his son. On Tuesday of the
following week he called to request visitation. Denise agreed so long as he picked up the son
and her and took them to the motel he was staying at under the understanding that a friend of
his would be with them at all times. The defendant and his friend picked the two up and drove to
the hotel. Upon arrival the friend left. Shortly thereafter defendant attacked Denise, threatened
to kill her, and forced her to perform fellatio and engage in sexual intercourse with him. He also
forced Denise to tell their son to watch. He allowed them to leave after the incident, and Denise
reported the incident the next day. Defendant moved to dismiss the following indictment
asserting that he came within a marital exemption to both rape and sodomy. The People
contended that because the couple were living apart pursuant to the temporary order of
protection, they were not married for purposes of the statute. The trial court dismissed the
indictment. The appellate court reversed and remanded, finding that the couple was not married
for purposes of the statute. The defendant was convicted and appealed, asserting that both
statutes are unconstitutional.
Issue. Is defendant correct in his assertion that the marital rape exemption in New Yorks rape
and sodomy statutes renders those statutes violative of the Equal Protection Clause?
Held. Based on Equal Protection analysis, the law must be that any person who engages in
sexual intercourse or deviate sexual intercourse with any other person by forcible compulsion is
guilty of either rape or sodomy. The defendants conviction is affirmed.
Under New York law a male is guilty of rape when he engages in sexual intercourse with a
female by forcible compulsion. Female is defined as any female person not married to the actor.

Likewise, deviate sexual conduct in the New York sodomy statute is limited to sexual conduct
between persons not married. Therefore, there is a marital exception for both forcible rape and
forcible sodomy. This marital exemption has certain exemptions, in that a husband and wife are
considered to be not married if at the time of the assault they are living apart pursuant to a court
order or a separation agreement.
Regarding the marital exemption, the equal protection clause does not prohibit a State from
making classifications, provided the statute does not arbitrarily burden a particular group of
individuals. When a statute draws a distinction based upon marital status, the classification must
be reasonable and must be based upon some ground of difference that rationally explains the
different treatment. This Court finds no rational basis for distinguishing between marital and
nonmarital rape.
Rationales for such a distinction are based either upon archaic notions about consent and
property rights or are simply unable to withstand even the slightest scrutiny. An argument based
upon supposed consent to such an act is irrational and absurd. A married woman has the same
right to control her own body as does an unmarried woman. Other traditional justifications that a
woman was the property of her husband have long been rejected by this State. More recent
rationales include that the exemption protects against governmental intrusion into marital privacy
and promotes reconciliation of the spouses, and thus, elimination would be disruptive to
marriages. There is no rational relation between allowing a husband to forcibly rape his wife and
these interests. The right of privacy protects consensual acts, not violent sexual assaults. In
such cases it is doubtful there is anything left to reconcile. Another rationale advanced is that
marital rape would be difficult to prove an
d could lead to fabricated complaints by vindictive wives. The criminal justice system is
presumed to be capable of handling false complaints. The final argument is that marital rape is
not as serious an offense as other rape and can be thus dealt with by other criminal statutes.
There is no evidence to support such a claim. Amongst recent decisions by other jurisdictions,
only one court has concluded that a rational basis exists for the marital exemption. This Court
holds that the exemption lacks a rational basis, and therefore violates the equal protection
clauses of both the Federal and State Constitutions.
Regarding the exemption under the rape statute for females, such an exemption must be
substantially related to the achievement of an important governmental objective. The People first
argue that the exemption is appropriate because only females may become pregnant. However,
there is no evidence that preventing pregnancy is a primary purpose of the statute. Rather it is
intended to prevent unwanted forcible and often violent sexual intrusion. The People also claim
justification is found because a female rape victim faces the probability of medical, sociological,
and psychological problems unique to her gender. This argument is no more convincing than it
was when it was advanced in support of the discrimination in the statutory rape laws. Finally, the
People suggest a gender-neutral law for forcible rape is unnecessary because it is either
impossible physiologically or an extremely rare case where a woman could rape a man. This
claim is based on an assertion that sexual intercourse is only possible if the male is sexually
aroused, and if he is aroused he is consenting. However, sexual intercourse occurs after
penetration, however slight. Such penetration can occur without arousal. As to the infrequency
argument, numerical disparity itself cannot make the gender discrimination constitutional. This
Court holds that the law violates equal protection because it exempts females from criminal
liability for forcible rape. It is now the law of this State that any person who engages in sexual
intercourse or deviate sexual intercourse with any other person by forcible compulsion is guilty
of either rape or sodomy. Because the statutes under which the defendant was convicted are
not being stuck down, his conviction is affirmed.
Discussion. The Court finds both the marital exemption and the female exemption to be
unconstitutional under equal protection analysis, but the defendants conviction is upheld.
CASE: Man appeals conviction for raping and sodomizing his wife.
FACTS: Denise and Mario were separated by Family Court order when he got her and their 2and-a-half-year-old son in a hotel room, forced her to perform fellatio on him and raped her (all
while making his wife tell their son to watch what his father was making his mother do). He was
indicted on chargesd of rape in the first degree and sodomy; the trial court dismissed the
indictment on the "marital exception" to rape; the appellete division reinstated the indictment and
the defendant was convicted of rape in the first degree and sodomy in the first degree; the
conviction was affirmed by the appellate division; defendant appealled to the Court of Appeals.
DEFENDANT ARGUES:
1.
The temporary order of protection from the Family Court was not the type of order which
enables a court to treat him and his wife as "not married" because it did not mandate that
the two be separated, only that he remain away from her.
2.
Assuming that because of the Family Court order he is treated just as any unmarried male
would be, defendant cannot be convicted of either rape in the first degree or sodomy in
the first degree because both statutes violate the Equal Protection Clause by burdening
only men and not women. The statutes criminalizing both acts are underinclusive
classifications which burden the defendant but not others similarly situated.
STATE ARGUES:
1.
In 1978, the legislature expanded the definition of "not married" to include those cases
where the husband and wife were living apart pursuant to a court order "which by its terms
or in its effect requires such living apart."
2.
Traditional and modern justifications for the marital exemption for rape:
a.
A husband cannot be guilty of raping his wife because she consented to sex when
she married him. ("[T]he husband cannot be guilty of a rape committed by himself
upon his wife, for by their mutual matrimonial consent and contract the wife hath
given up herself in this kind unto her husband, which she cannot retract.").
b.
ADVANCED BY THE STATE: A woman was the property of her husband and the
legal existence of the woman was "incorporated and consolidated into" that of the
husband.
c.
The marital exemption protects against governmental intrusion into marital privacy
and promotes reconcilation of the spouses, thus, the elimination of the exemption
would be disruptive to the parties.

d.
e.

Marital rape would be a difficult crime to prove.

Marital rape is not as serious an offense as other rape and is thus adequately dealt
with by the possibility of prosecution under criminal statutes, such as assault
statutes, which provide for less severe punishment.
3.
The rape statute is properly written to protect females because only females can become
pregnant.
4.
Discrimination in the rape laws is justified because a female rape victim "faces the
probability of medical, sociological, and psychological problems unique to her gender."
5.
A gender-neutral law for forcible rape is unnecessary, and that therefore, the present law
is constitutional because a woman either cannot actually raoe a man or such attacks, if
possible, are extremely rare.
COURT SAYS: Conviction affirmed.
HOLDINGS:
1.
Appellate Division did not err in considering defendant husband "not married" for
the purposes of the New York Penal Law rape statute where the man raped his wife while
they were living apart pursuant to a Family Court order.
2.
The marital exception under which men cannot be convicted of raping their wives is
a violation of the equal protection clause because there is no rational basis for
distintuishing between marital rape and nonmarital rape.
3.
Statute exempting females from criminal liability for forcible rape while holding men
responsible violates the equal protection clause of the Fourteenth Amendment.
RATIONALE:
Marital exemption:
o
Where a staute draws a distinction based upon marital status, the classification must be
reasonable and must be based upon "some ground fo difference that rationally explains the
different treatment". There is no rational basis for distinguishing between marital rape and
nonmarital rape.
o
CONSENT AT MARRIAGE: Rape is not a sexual act to which one party does not consent,
but rather a violent and degrading act which violates the bodily integrity of the victim; a
married woman has the same right to have control over her body as does an unmarried
woman.
o
GOVERNMENT INTRUSION: The right of privacy protects consensual acts, not violent
sexual assaults; it is the act of rape which disrupts the marriage, not the criminal prohibition
against it.
o
DIFFICULT CRIME TO PROVE: All rapes are difficult to prove, especially when the victim
and the defendant know one another; the criminal justice system is presumed to be capable
of handlingg any false complaints of "vindictive wives."
o
BETTER DEALT WITH UNDER ASSAULT STATUTES: Rape is not merely an assault, but
something much more; there is no evidence to support the contention that marital rape has
less severe consequences than other rape.
Exemption for females:
o
DISTINGUISH FROM STATUTORY RAPE: There is no evidence that preventing
pregnancies is a primary purpose of the statute prohibiting rape (as is the case with
statutory rape). Thus, due to the different purposes behind forcible rape laws and statutory
rape laws, the cases upholding the gender discrimination in the latter are not decisive with
respect to the former.
o
The physiologically impossible argument is wrong: penetration can be acheived even when
the man is not aroused and, therefore, without his consent.
o
The fact that attacks of females on males or females on females are rare makes them no
more constitutional. The only persons benefitting from these laws are females who forcibly
rape males.
o
This case was decided on a wrong legal theorynegligent infliction of emotional distress.
Since this theory is not recognized in the state of Texas, the lower court's ruling must not
stand.
o
This court has broad discretion to remand for a new trial in the interest of justice and when
it appears that the facts when developed at trial may support recovery on an alternative
theory.
TO NOTE: The court was able to have its cake and eat it too in this case. Although it found the
stautes under which the defendant, an admittedly bad, bad man, was convicted and imprisoned,
it did not overturn his conviction and set him free or remand for a new trial. Rather, it concluded
that the Legislature would prefer to eliminate the exemptions (marital, gender) and preserve the
statutes, an interesting bit of judicial legislation. Because the statutes under which the defendant
was convicted were not, then, stuck down (only the bad parts), his conviction could be affirmed.
To reverse would have disastrous effects on rapists in prison and those pending trial for rape,
the Court noted.
X. B. Fixing the Family Domicile Art. 69
Cases
PASTOR B. TENCHAVEZ, plaintiff-appellant, vs. VICENTA F. ESCAO, ET AL., defendantsappellees. I. V. Binamira & F. B. Barria for plaintiff-appellant. Jalandoni & Jarnir for defendantsappellees.
REYES, J.B.L., J.: Direct appeal, on factual and legal questions, from the judgment of the Court
of First Instance of Cebu, in its Civil Case No. R-4177, denying the claim of the plaintiffappellant, Pastor B. Tenchavez, for legal separation and one million pesos in damages against
his wife and parents-in-law, the defendants-appellees, Vicente, Mamerto and Mena,1 all
surnamed "Escao," respectively.2
The facts, supported by the evidence of record, are the following:
Missing her late afternoon classes on 24 February 1948 in the University of San Carlos, Cebu
City, where she was then enrolled as a second year student of commerce, Vicenta Escao, 27
years of age (scion of a well-to-do and socially prominent Filipino family of Spanish ancestry and

a "sheltered colegiala"), exchanged marriage vows with Pastor Tenchavez, 32 years of age, an
engineer, ex-army officer and of undistinguished stock, without the knowledge of her parents,
before a Catholic chaplain, Lt. Moises Lavares, in the house of one Juan Alburo in the said city.
The marriage was the culmination of a previous love affair and was duly registered with the local
civil register.
Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the couple were
deeply in love. Together with a friend, Pacita Noel, their matchmaker and go-between, they had
planned out their marital future whereby Pacita would be the governess of their first-born; they
started saving money in a piggy bank. A few weeks before their secret marriage, their
engagement was broken; Vicenta returned the engagement ring and accepted another suitor,
Joseling Lao. Her love for Pastor beckoned; she pleaded for his return, and they reconciled.
This time they planned to get married and then elope. To facilitate the elopement, Vicenta had
brought some of her clothes to the room of Pacita Noel in St. Mary's Hall, which was their usual
trysting place.
Although planned for the midnight following their marriage, the elopement did not, however,
materialize because when Vicente went back to her classes after the marriage, her mother, who
got wind of the intended nuptials, was already waiting for her at the college. Vicenta was taken
home where she admitted that she had already married Pastor. Mamerto and Mena Escao
were surprised, because Pastor never asked for the hand of Vicente, and were disgusted
because of the great scandal that the clandestine marriage would provoke (t.s.n., vol. III, pp.
1105-06). The following morning, the Escao spouses sought priestly advice. Father Reynes
suggested a recelebration to validate what he believed to be an invalid marriage, from the
standpoint of the Church, due to the lack of authority from the Archbishop or the parish priest for
the officiating chaplain to celebrate the marriage. The recelebration did not take place, because
on 26 February 1948 Mamerto Escao was handed by a maid, whose name he claims he does
not remember, a letter purportedly coming from San Carlos college students and disclosing an
amorous relationship between Pastor Tenchavez and Pacita Noel; Vicenta translated the letter
to her father, and thereafter would not agree to a new marriage. Vicenta and Pastor met that day
in the house of Mrs. Pilar Mendezona. Thereafter, Vicenta continued living with her parents
while Pastor returned to his job in Manila. Her letter of 22 March 1948 (Exh. "M"), while still
solicitous of her husband's welfare, was not as endearing as her previous letters when their love
was aflame.
Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor knew it. She
fondly accepted her being called a "jellyfish." She was not prevented by her parents from
communicating with Pastor (Exh. "1-Escao"), but her letters became less frequent as the days
passed. As of June, 1948 the newlyweds were already estranged (Exh. "2-Escao"). Vicenta
had gone to Jimenez, Misamis Occidental, to escape from the scandal that her marriage stirred
in Cebu society. There, a lawyer filed for her a petition, drafted by then Senator Emmanuel
Pelaez, to annul her marriage. She did not sign the petition (Exh. "B-5"). The case was
dismissed without prejudice because of her non-appearance at the hearing (Exh. "B-4").
On 24 June 1950, without informing her husband, she applied for a passport, indicating in her
application that she was single, that her purpose was to study, and she was domiciled in Cebu
City, and that she intended to return after two years. The application was approved, and she left
for the United States. On 22 August 1950, she filed a verified complaint for divorce against the
herein plaintiff in the Second Judicial District Court of the State of Nevada in and for the County
of Washoe, on the ground of "extreme cruelty, entirely mental in character." On 21 October
1950, a decree of divorce, "final and absolute", was issued in open court by the said tribunal.
In 1951 Mamerto and Mena Escao filed a petition with the Archbishop of Cebu to annul their
daughter's marriage to Pastor (Exh. "D"). On 10 September 1954, Vicenta sought papal
dispensation of her marriage (Exh. "D"-2).
On 13 September 1954, Vicenta married an American, Russell Leo Moran, in Nevada. She now
lives with him in California, and, by him, has begotten children. She acquired American
citizenship on 8 August 1958.
But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint in the Court
of First Instance of Cebu, and amended on 31 May 1956, against Vicenta F. Escao, her
parents, Mamerto and Mena Escao, whom he charged with having dissuaded and discouraged
Vicenta from joining her husband, and alienating her affections, and against the Roman Catholic
Church, for having, through its Diocesan Tribunal, decreed the annulment of the marriage, and
asked for legal separation and one million pesos in damages. Vicenta claimed a valid divorce
from plaintiff and an equally valid marriage to her present husband, Russell Leo Moran; while
her parents denied that they had in any way influenced their daughter's acts, and
counterclaimed for moral damages.
The appealed judgment did not decree a legal separation, but freed the plaintiff from supporting
his wife and to acquire property to the exclusion of his wife. It allowed the counterclaim of
Mamerto Escao and Mena Escao for moral and exemplary damages and attorney's fees
against the plaintiff-appellant, to the extent of P45,000.00, and plaintiff resorted directly to this
Court.
The appellant ascribes, as errors of the trial court, the following:
1. In not declaring legal separation; in not holding defendant Vicenta F. Escao liable for
damages and in dismissing the complaint;.
2. In not holding the defendant parents Mamerto Escano and the heirs of Doa Mena Escao
liable for damages;.
3 In holding the plaintiff liable for and requiring him to pay the damages to the defendant parents
on their counterclaims; and.
4. In dismissing the complaint and in denying the relief sought by the plaintiff.
That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the defendant-appellee,
Vicenta Escao, were validly married to each other, from the standpoint of our civil law, is clearly
established by the record before us. Both parties were then above the age of majority, and
otherwise qualified; and both consented to the marriage, which was performed by a Catholic
priest (army chaplain Lavares) in the presence of competent witnesses. It is nowhere shown that
said priest was not duly authorized under civil law to solemnize marriages.

The chaplain's alleged lack of ecclesiastical authorization from the parish priest and the
Ordinary, as required by Canon law, is irrelevant in our civil law, not only because of the
separation of Church and State but also because Act 3613 of the Philippine Legislature (which
was the marriage law in force at the time) expressly provided that
SEC. 1. Essential requisites. Essential requisites for marriage are the legal capacity of the
contracting parties and consent. (Emphasis supplied)
The actual authority of the solemnizing officer was thus only a formal requirement, and,
therefore, not essential to give the marriage civil effects,3 and this is emphasized by section 27
of said marriage act, which provided the following:
SEC. 27. Failure to comply with formal requirements. No marriage shall be declared invalid
because of the absence of one or several of the formal requirements of this Act if, when it was
performed, the spouses or one of them believed in good faith that the person who solemnized
the marriage was actually empowered to do so, and that the marriage was perfectly legal.
The good faith of all the parties to the marriage (and hence the validity of their marriage) will be
presumed until the contrary is positively proved (Lao vs. Dee Tim, 45 Phil. 739, 745; Francisco
vs. Jason, 60 Phil. 442, 448). It is well to note here that in the case at bar, doubts as to the
authority of the solemnizing priest arose only after the marriage, when Vicenta's parents
consulted Father Reynes and the archbishop of Cebu. Moreover, the very act of Vicenta in
abandoning her original action for annulment and subsequently suing for divorce implies an
admission that her marriage to plaintiff was valid and binding.
Defendant Vicenta Escao argues that when she contracted the marriage she was under the
undue influence of Pacita Noel, whom she charges to have been in conspiracy with appellant
Tenchavez. Even granting, for argument's sake, the truth of that contention, and assuming that
Vicenta's consent was vitiated by fraud and undue influence, such vices did not render her
marriage ab initio void, but merely voidable, and the marriage remained valid until annulled by a
competent civil court. This was never done, and admittedly, Vicenta's suit for annulment in the
Court of First Instance of Misamis was dismissed for non-prosecution.
It is equally clear from the record that the valid marriage between Pastor Tenchavez and Vicenta
Escao remained subsisting and undissolved under Philippine law, notwithstanding the decree
of absolute divorce that the wife sought and obtained on 21 October 1950 from the Second
Judicial District Court of Washoe County, State of Nevada, on grounds of "extreme cruelty,
entirely mental in character." At the time the divorce decree was issued, Vicenta Escao, like her
husband, was still a Filipino citizen.4 She was then subject to Philippine law, and Article 15 of the
Civil Code of the Philippines (Rep. Act No. 386), already in force at the time, expressly provided:
Laws relating to family rights and duties or to the status, condition and legal capacity of persons
are binding upon the citizens of the Philippines, even though living abroad.
The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo
matrimonii; and in fact does not even use that term, to further emphasize its restrictive policy on
the matter, in contrast to the preceding legislation that admitted absolute divorce on grounds of
adultery of the wife or concubinage of the husband (Act 2710). Instead of divorce, the present
Civil Code only provides for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in that
case, it expressly prescribes that "the marriage bonds shall not be severed" (Art. 106, subpar.
1). For the Philippine courts to recognize and give recognition or effect to a foreign decree of
absolute divorce betiveen Filipino citizens could be a patent violation of the declared public
policy of the state, specially in view of the third paragraph of Article 17 of the Civil Code that
prescribes the following:
Prohibitive laws concerning persons, their acts or property, and those which have for their object
public order, policy and good customs, shall not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions agreed upon in a foreign country.
Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in
effect, give rise to an irritating and scandalous discrimination in favor of wealthy citizens, to the
detriment of those members of our polity whose means do not permit them to sojourn abroad
and obtain absolute divorces outside the Philippines.
From this point of view, it is irrelevant that appellant Pastor Tenchavez should have appeared in
the Nevada divorce court. Primarily because the policy of our law cannot be nullified by acts of
private parties (Civil Code,Art. 17, jam quot.); and additionally, because the mere appearance of
a non-resident consort cannot confer jurisdiction where the court originally had none (Area vs.
Javier, 95 Phil. 579).
From the preceding facts and considerations, there flows as a necessary consequence that in
this jurisdiction Vicenta Escao's divorce and second marriage are not entitled to recognition as
valid; for her previous union to plaintiff Tenchavez must be declared to be existent and
undissolved. It follows, likewise, that her refusal to perform her wifely duties, and her denial
of consortium and her desertion of her husband constitute in law a wrong caused through her
fault, for which the husband is entitled to the corresponding indemnity (Civil Code, Art. 2176).
Neither an unsubstantiated charge of deceit nor an anonymous letter charging immorality
against the husband constitute, contrary to her claim, adequate excuse. Wherefore, her
marriage and cohabitation with Russell Leo Moran is technically "intercourse with a person not
her husband" from the standpoint of Philippine Law, and entitles plaintiff-appellant Tenchavez to
a decree of "legal separation under our law, on the basis of adultery" (Revised Penal Code, Art.
333).
The foregoing conclusions as to the untoward effect of a marriage after an invalid divorce are in
accord with the previous doctrines and rulings of this court on the subject, particularly those that
were rendered under our laws prior to the approval of the absolute divorce act (Act 2710 of the
Philippine Legislature). As a matter of legal history, our statutes did not recognize divorces a
vinculo before 1917, when Act 2710 became effective; and the present Civil Code of the
Philippines, in disregarding absolute divorces, in effect merely reverted to the policies on the
subject prevailing before Act 2710. The rulings, therefore, under the Civil Code of 1889, prior to
the Act above-mentioned, are now, fully applicable. Of these, the decision in Ramirez vs. Gmur,
42 Phil. 855, is of particular interest. Said this Court in that case:
As the divorce granted by the French Court must be ignored, it results that the marriage of Dr.
Mory and Leona Castro, celebrated in London in 1905, could not legalize their relations; and the
circumstance that they afterwards passed for husband and wife in Switzerland until her death is

wholly without legal significance. The claims of the very children to participate in the estate of
Samuel Bishop must therefore be rejected. The right to inherit is limited to legitimate, legitimated
and acknowledged natural children. The children of adulterous relations are wholly excluded.
The word "descendants" as used in Article 941 of the Civil Code cannot be interpreted to include
illegitimates born of adulterous relations. (Emphasis supplied)
Except for the fact that the successional rights of the children, begotten from Vicenta's marriage
to Leo Moran after the invalid divorce, are not involved in the case at bar, the Gmur case is
authority for the proposition that such union is adulterous in this jurisdiction, and, therefore,
justifies an action for legal separation on the part of the innocent consort of the first marriage,
that stands undissolved in Philippine law. In not so declaring, the trial court committed error.
True it is that our ruling gives rise to anomalous situations where the status of a person (whether
divorced or not) would depend on the territory where the question arises. Anomalies of this kind
are not new in the Philippines, and the answer to them was given in Barretto vs. Gonzales, 58
Phil. 667:
The hardship of the existing divorce laws in the Philippine Islands are well known to the
members of the Legislature. It is the duty of the Courts to enforce the laws of divorce as written
by Legislature if they are constitutional. Courts have no right to say that such laws are too strict
or too liberal. (p. 72)
The appellant's first assignment of error is, therefore, sustained.
However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escao and his
wife, the late Doa Mena Escao, alienated the affections of their daughter and influenced her
conduct toward her husband are not supported by credible evidence. The testimony of Pastor
Tenchavez about the Escao's animosity toward him strikes us to be merely conjecture and
exaggeration, and are belied by Pastor's own letters written before this suit was begun (Exh. "2Escao" and "Vicenta," Rec. on App., pp. 270-274). In these letters he expressly apologized to
the defendants for "misjudging them" and for the "great unhappiness" caused by his "impulsive
blunders" and "sinful pride," "effrontery and audacity" [sic]. Plaintiff was admitted to the Escao
house to visit and court Vicenta, and the record shows nothing to prove that he would not have
been accepted to marry Vicente had he openly asked for her hand, as good manners and
breeding demanded. Even after learning of the clandestine marriage, and despite their shock at
such unexpected event, the parents of Vicenta proposed and arranged that the marriage be
recelebrated in strict conformity with the canons of their religion upon advice that the previous
one was canonically defective. If no recelebration of the marriage ceremony was had it was not
due to defendants Mamerto Escao and his wife, but to the refusal of Vicenta to proceed with it.
That the spouses Escao did not seek to compel or induce their daughter to assent to the
recelebration but respected her decision, or that they abided by her resolve, does not constitute
in law an alienation of affections. Neither does the fact that Vicenta's parents sent her money
while she was in the United States; for it was natural that they should not wish their daughter to
live in penury even if they did not concur in her decision to divorce Tenchavez (27 Am. Jur. 130132).
There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her
original suit for annulment, or her subsequent divorce; she appears to have acted independently,
and being of age, she was entitled to judge what was best for her and ask that her decisions be
respected. Her parents, in so doing, certainly cannot be charged with alienation of affections in
the absence of malice or unworthy motives, which have not been shown, good faith being
always presumed until the contrary is proved.
SEC. 529. Liability of Parents, Guardians or Kin. The law distinguishes between the right of a
parent to interest himself in the marital affairs of his child and the absence of rights in a stranger
to intermeddle in such affairs. However, such distinction between the liability of parents and that
of strangers is only in regard to what will justify interference. A parent isliable for alienation of
affections resulting from his own malicious conduct, as where he wrongfully entices his son or
daughter to leave his or her spouse, but he is not liable unless he acts maliciously, without
justification and from unworthy motives. He is not liable where he acts and advises his child in
good faith with respect to his child's marital relations in the interest of his child as he sees it, the
marriage of his child not terminating his right and liberty to interest himself in, and be extremely
solicitous for, his child's welfare and happiness, even where his conduct and advice suggest or
result in the separation of the spouses or the obtaining of a divorce or annulment, or where he
acts under mistake or misinformation, or where his advice or interference are indiscreet or
unfortunate, although it has been held that the parent is liable for consequences resulting from
recklessness. He may in good faith take his child into his home and afford him or her protection
and support, so long as he has not maliciously enticed his child away, or does not maliciously
entice or cause him or her to stay away, from his or her spouse. This rule has more frequently
been applied in the case of advice given to a married daughter, but it is equally applicable in the
case of advice given to a son.
Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social discrimination
and with having exerted efforts and pressured her to seek annulment and divorce,
unquestionably caused them unrest and anxiety, entitling them to recover damages. While this
suit may not have been impelled by actual malice, the charges were certainly reckless in the
face of the proven facts and circumstances. Court actions are not established for parties to give
vent to their prejudices or spleen.
In the assessment of the moral damages recoverable by appellant Pastor Tenchavez from
defendant Vicente Escao, it is proper to take into account, against his patently unreasonable
claim for a million pesos in damages, that (a) the marriage was celebrated in secret, and its
failure was not characterized by publicity or undue humiliation on appellant's part; (b) that the
parties never lived together; and (c) that there is evidence that appellant had originally agreed to
the annulment of the marriage, although such a promise was legally invalid, being against public
policy (cf. Art. 88, Civ. Code). While appellant is unable to remarry under our law, this fact is a
consequence of the indissoluble character of the union that appellant entered into voluntarily
and with open eyes rather than of her divorce and her second marriage. All told, we are of the
opinion that appellant should recover P25,000 only by way of moral damages and attorney's
fees.

With regard to the P45,000 damages awarded to the defendants, Dr. Mamerto Escao and
Mena Escao, by the court below, we opine that the same are excessive. While the filing of this
unfounded suit must have wounded said defendants' feelings and caused them anxiety, the
same could in no way have seriously injured their reputation, or otherwise prejudiced them,
lawsuits having become a common occurrence in present society. What is important, and has
been correctly established in the decision of the court below, is that said defendants were not
guilty of any improper conduct in the whole deplorable affair. This Court, therefore, reduces the
damages awarded to P5,000 only.
Summing up, the Court rules:
(1) That a foreign divorce between Filipino citizens, sought and decreed after the effectivity of
the present Civil Code (Rep. Act 386), is not entitled to recognition as valid in this jurisdiction;
and neither is the marriage contracted with another party by the divorced consort, subsequently
to the foreign decree of divorce, entitled to validity in the country;
(2) That the remarriage of divorced wife and her co-habitation with a person other than the
lawful husband entitle the latter to a decree of legal separation conformably to Philippine law;
(3) That the desertion and securing of an invalid divorce decree by one consort entitles the other
to recover damages;
(4) That an action for alienation of affections against the parents of one consort does not lie in
the absence of proof of malice or unworthy motives on their part.
WHEREFORE, the decision under appeal is hereby modified as follows;
(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal separation from
defendant Vicenta F. Escao;
(2) Sentencing defendant-appellee Vicenta Escao to pay plaintiff-appellant Tenchavez the
amount of P25,000 for damages and attorneys' fees;
(3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escao and the estate
of his wife, the deceased Mena Escao, P5,000 by way of damages and attorneys' fees.
Neither party to recover costs. Bengzon, C.J., Bautista Angelo, Concepcion, Dizon, Regala,
Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur.
Facts: Vicenta Escao and Pastor Tenchavez secretly got married before a Catholic chaplain
and planned to elope.The elopement did not materialize because Vicentas mother discovered
such marriage. Her parents asked the advice of one Father Reynes and subsequently agreed to
recelebrate the marriage. However, Vicenta refused to proceed with the ceremony because a
letter from the students of san Carlos College disclosed that Pastor and their matchmaker,
Pacita Noel had an amorous relationship. Vicenta left for the States, acquired a foreign divorce
and married an American, Russel Leo Moran in Nevada. She sought for a divorce from
Tenchavez in 1950 and sought ecclesiastical release from her marriage to Tenchavez in 1954.
Escano claims that state recognition should be accorded the Church's disavowal of her marriage
with Tenchavez.. Escano argued that her second marriage deserves the laws recognition and
protection over the other.es the laws recognition and protection over the other since it fits
concept of a marriage as a social institution because publicly contracted, recognized by both
civil and ecclesiastical authorities, and blessed by three children. She also contends that the
court has no jurisdiction over her.
Husband filed complaint:
Vs. Parents: for having dissuaded and discouraged Vicenta from joining her husband and
alienating her affections
Vs. Roman Catholic Church: for having decreed annulment
Parents filed counterclaim for moral and exemplary damages.
Issues: 1) WON marriage between Tenchavez and Escano still subsists in lieu of the divorce
2) WON there is an action for alienation of affections against parents
Held: NO
Ratio:
1. no proof of malice
2. parents themselves suggested that the marriage be celebrated again
3. also, Vicenta appeared to have acted independently and being of age, she was entitled to 4.
judge what was best for her and ask that her decisions be respected
THERE WAS A VALID MARRIAGE between Vicenta and Tenchaves:
With regard to jurisdiction over Escano, the court states that when against the non-resident
defendant affects the personal status of the plaintiff, as, for instance, an action for separation or
for annulment of marriage, ..., Philippine courts may validly try and decide the case, because,
then, they have jurisdiction over the matter , and in that event their jurisdiction over the person of
the non-resident defendant is not essential. The point is the personal status of the plaintiff
domiciled in the Philippines. Divorce, although successfully obtained in another country, cannot
be applied in the Philippines since it is contrary to public policy. The principle is well-established,
in private international law, that foreign decrees cannot be enforced or recognized if they
contravene public policy. Furthermore, Vicentas refusal to perform her wifely duties, and her
denial of consortium and her desertion of husband constitute in law a wrong caused through her
fault, for which the husband is entitled to damages (2176). When, however, the action against
the non-resident defendant affects the personal status of the plaintiff, as, for instance, an action
for separation or 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, 45,000 damages awarded to parents deemed excessive:
filing of suit nay have wounded their feelings and caused anxiety but this has not seriously
injured their reputation or otherwise prejudiced them, lawsuits having become a common
occurrence in present society.
AURELIA DADIVAS DE VILLANUEVA, plaintiff-appellant, vs. RAFAEL VILLANUEVA,
defendant-appellee. Harvey and O'Brien for appellant. Jose G. Generoso for appellee.
STREET, J.: This action was instituted on May 27, 1927, in the Court of First Instance of the City
of Manila by Aurelia Dadivas de Villanueva against her husband, Rafael Villanueva, for the
purpose of obtaining separate maintenance and custody of the two younger minor children,
Guillermo and Sergio Villanueva, as well as a proper allowance for professional legal services

rendered by the plaintiff's attorneys in this action, as well as costs. Upon hearing the cause the
trial court absolved the defendant from the complaint and abrogated a prior order of the court for
maintenance pendente lite, with costs against the plaintiff. From this judgment the plaintiff
appealed.
The plaintiff, Aurelia Dadivas de Villanueva, was married to the defendant, Rafael Villanueva, on
July 16, 1905, in the City of Manila, where the pair have since resided. To them have been born
three children, namely, Antonio, Guillermo, and Sergio, who were, at the time of the trial of this
case in the lower court, aged respectively 18, 10 and 9 years. The grounds on which separate
maintenance is sought infidelity and cruelty. With respect to the first of these charges the proof
shows that during the period of about ten years prior to the institution of the action, the
defendant was guilty of repeated acts of infidelity with four different women, and even after the
action was begun, he is shown to have had illicit relations with still another, an incident which is
incorporated in the case by means of the amended complaint. Thought at all times protesting
against these irregularities in her husband's conduct, the plaintiff appears to have exhibited
forbearance; and she long continued in marital relations with him with a view to keeping the
family intact as well as with hope of retrieving him from his erring course. In the end, however,
the incorrigible nature of the defendant in his relations with other women, coupled with a lack of
consideration and even brutality towards the plaintiff, caused her to withdraw from the domestic
hearth and to establish a separate abode for herself and two younger children. This final
separation occurred on April 20, 1927, about one month before the present action was begun.
The proof with respect to the charge of cruelty shows that the defendant has not infrequently
treated the plaintiff roughly and that he has at times directed abusive words to her and
challenged her to carry her troubles into court. The proof in support of this charge does not in
our opinion establish a case for separate maintenance, without relation to the graver charge of
conjugal infidelity; and if the case depended, for its solution, upon cruelty alone, the case could
doubtless be affirmed, in conformity with the doctrine stated in Arroyo vs. Vazquez de Arroyo (42
Phil. 54), where the charges of cruelty were found to be unproved or insufficient. In that case,
however, we were able to record the fact that neither of the spouses had at any time been guilty
of conjugal infidelity, and that neither had, so far as the proof showed, even given just cause to
the other to suspect illicit relations with any person. In the case before us repeated acts of
conjugal infidelity on the part of the husband are proved, and he appears to be a recurrent, if not
an incurable offender against the sanctity of the marriage tie. This give the wife an undeniable
right to relief.
The law is not so unreasonable as to require a wife to live in marital relations with a husband
whose incurable propensity towards other women makes common habitation with him
unbearable. Deeply rooted instincts of human nature sanction the separation in such case, and
the law is not so unreasonable as to require as acquiescence on the part of the injured party
which is beyond the capacity of nature. In order to entitle a wife to maintain a separate home
and to require separate maintenance from her husband it is not necessary that the husband
should bring a concubine into the marital domicile. Perverse and illicit relations with women
outside of the marital establishment are enough. As was said by Justice Moreland in
Goitia vs. Campos Rueda (35 Phil., 252, 262), a husband cannot, by his own wrongful acts,
relieve himself from the duty to support his wife imposed by law; and where a husband by
wrongful, illegal, and unbearable conduct, drives his wife from the domicile fixed by him, he
cannot take advantage of her departure to abrogate the law applicable to the marital relations
and repudiate his duties thereunder.
In her complaint the plaintiff asks for an allowance of P750 per month, but we are of the opinion
that the sum of P500 per month will suffice, this being in addition to the use which she makes for
living quarters of a modest property belonging to the conjugal estate. During their marital life the
spouses have acquired real estate which, at the time of the trial, was assessed at more than
P85,000, and which at the same time was reasonably valued at more than P125,000. In addition
to this the defendant appears to be now earning a substantial salary in commercial activities.
The plaintiff is also entitled to an allowance for attorney's fees which we fix at P1,000 for
services rendered in the trial court and the same amount for services rendered in this court. It
appears that the two younger children are now living with the plaintiff, and her right to their
custody will not be disturbed. While this litigation was pending in the lower court the defendant
was required to pay the amount of P500 per month for maintenance of the plaintiff, under an
interlocutory order of June 15, 1927. But these payments ceased when the appealed decision
was promulgated on or about the end of March, 1928. The plaintiff in this case is therefore
entitled to judgment at the rate of P500 per month beginning April 1, 1928, until judgment shall
be promulgated in this case, and from that date the defendant will be required to pay P500 per
month for maintenance as already suggested. The plaintiff will also be awarded the sum of P720
in satisfaction of the amount paid out for the transcript necessary to this appeal.
The judgment is therefore reversed, and it is ordered that the plaintiff have and recover of the
defendant the sum of P2,000 for attorney's fees, the sum of P720 for expenses of procuring
transcript, and the sum of P500 per month, beginning April 1, 1928, until the promulgation of this
decision, after which the date the defendant is ordered to pay to the plaintiff by way of
maintenance, on or before the 10th day of each month, the sum of P500. So ordered, with costs
against appellee.
Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.
Nature of the Case: The case at bar is an appeal from a judgement of the Court of First Instance
of Manila
Plaintiff filed a case against the Defendant on May 27, 1927for the purpose of obtaining
separate maintenance and custody of twoyounger minor children. As well as a proper allowance
for professional
legal services rendered by the Plaintiffs attorney.
Upon hearing the cause the trial court absolved thedefendant from the complaint and abrogated
a prior order of the courtfor maintenance pendent lite, with costs against the plaintiff. From
this judgment, the plaintiff appealed.
FACTS:
1. July 16, 1905- Plaintiff and Defendant were married.2. Manila- place of marriage and residenc
e of the couple.3. Children: Antonio- 18 yrs.Guillermo- 10 yrs., minorSergio- 9 yrs.,

minor4. Infidelity and cruelty- grounds on which separatemaintenance is

sought5. Proof of infidelity-ten years prior to the institution of the action, thedefendant was guilty
of repeated acts of infidelity with fourdifferent women.6. Incorrigible nature of the defendant in
relations with otherwomen and brutality towards the plaintiff caused theplaintiff to establish a
separate abode for herself and twominor children.7. April 20, 1927-occurrence of final
separation of wife (plaintiff) andhusband (defendant).-the month before the plaintiff filed an
appeal to obtainseparate maintenance.8. Proof to the charge of cruelty-does not establish a
case for separate maintenance-unproved and insufficient9. Repeated acts of conjugal infidelity
(by the husband/defendant)-proved-recurrent-gives wife (plaintiff) an undeniable right to relief
ISSUE: Whether the wife has an undeniable right to relief
HELD: The decision/judgment of the lower court was reversed in favor of the wife/plaintiff and
against the p. 2,000 for attorneys fees, Php. 720 for expenses husband/defendant. It was
ordered that the plaintiff have and recover of the defendant the sum of Ph of procuring transcript
and Php. 500 per month, beginning April 1, 1928.The defendant was ordered to pay the plaintiff
byway of maintenance on or before the 10th day of each month, the sum of Php. 500.
RATIONALE: In order to entitle a wife to maintain a separate home and to require separate
maintenance from her husband, it is not necessary that the husband should bring a concubine
into the marital domicile. Repeated illicit relations with women outside of the marital
establishment are enough. The law is not so unreasonable as to require a wife to live in marital
relations with a husband whose propensity towards other women makes common habitation
with him unbearable.
CIPRIANA GARCIA, plaintiff-appellant, vs. ISABELO SANTIAGO and ALEJO SANTIAGO,
defendants-appellees. Gregorio Perfecto for appellant. M. H. de Joya and Pompeyo Diaz for
appellees.
OSTRAND, J.: This is an appeal but the plaintiff from a judgment of the Court of First Instance
of Nueva Ecija dismissing the complaint.
In her complaint the plaintiff alleges that she was married to the defendant Isabelo Santiago on
April 8, 1910, and that from that date they lived together as husband and wife, until continued
family dissentions compelled her to leave the conjugal dwelling on February 3, 1925; that
defendant Alejo Santiago is a son of Isabelo Santiago by his first wife, and Prisca Aurelio is a
daughter of plaintiff by her first husband; that said Alejo Santiago seduced Prisca Aurelio, and
the latter gave birth to a child; and that the other defendant Isabelo Santiago, instead of seeing
to the vindication of the honor of plaintiff's daughter by requiring his son to marry her, has
refused to have anything to do with the matter, thus seemingly countenancing the illicit relations
between them; that with a view to favoring materially the said Alejo Santiago and fostering his
whims and caprices, defendant Isabelo Santiago has been conveying, and is attempting to
convey, to said Alejo Santiago property belonging to their conjugal partnership, to the damage
and prejudice of plaintiff's rights; that, among the property that defendant has conveyed or is
attempting to convey Alejo Santiago, the lands specially described in the complaint are the most
important ones, which, with others, had been acquired by plaintiff and defendant Isabelo
Santiago during their married life with money belonging to the conjugal partnership, and with the
products and fruits of the property of the conjugal partnership, or through the industry of the two;
that said property produces annually around the neighborhood of 4,500 cavanes of palay at P4
per cavan; that by reason of the attitude of defendant Isabelo Santiago, respecting the illicit
relations of his son and Prisca Aurelio, and his fraudulent acts conveying to said Alejo Santiago
property belonging to the conjugal partnership, plaintiff and Isabelo Santiago have been several
discussions and quarrels, which culminated in their separation of February 3, 1925, which
separation became necessary in order to avoid personal violence; that notwithstanding plaintiff's
repeated demands, defendants Isabelo Santiago has continually refused to provide for her
support, and plaintiff could not live in their conjugal dwelling, because of illicit relations between
Alejo Santiago and Prisca Aurelio, countenance by the other defendant Isabelo Santiago; that
taking into consideration the actual financial conditions of the conjugal partnership, plaintiff is
entitled to a monthly pension P500 pendente lite; and that in the meanwhile, the court should
restrain defendant Isabelo Santiago from conveying of attempting to convey any property of the
conjugal partnership; that defendant Isabelo has publicly maintained illicit relations with a
woman by the name of Geronima Yap; and that by said immoral conduct and acts, defendant
Isabelo Santiago has shown himself unfit to administer the property of the conjugal partnership,
and the court should therefore order that its administration be placed in the hands of plaintiff.
The defendants' answer to the complaint was a general denial.
The appellant makes the following assignments of error:
(1) The court erred in declaring her separation from the defendant Isabelo Santiago unjustified.
(2) The court erred in dissolving the preliminary injunction and refusing to set aside the transfer
of title made by Isabelo Santiago in favor of Alejo Santiago.
(3) The court erred in not granting the plaintiff the right to administer the conjugal property.
(4) The court erred in not granting the plaintiff the right to administer the conjugal property.
(5) The court erred in not granting the other remedies prayed for in the complaint.
The second and fourth assignments of error are entirely without merit. The plaintiff has failed to
prove that the property conveyed to Alejo Santiago is community property; on the contrary, it is
shown by documentary evidence that the land was acquitted by Isabelo Santiago previously to
his marriage to the plaintiff. Neither can we find any sufficient reason for depriving the husband
of his right to administer such conjugal property as may exist.1awphi1.net
The first and third assignments of error deserved some consideration. It clearly appears that the
spouses led a rather stormy life subsequent to the dishonor of the plaintiff's daughter, Prisca,
and that husband, according to the plaintiff's testimony, went so far as to order her to leave his
house and threatened to illtreat her if she returned. It also appears that, aside from the quarrels,
she had very unpleasant experiences in other respects. Her young daughter was, and still,
under her care, and her assertion that her husband's son was the cause of her daughter's
pregnancy is probably not unfounded. It requires no stretch of the imagination to conclude that
to keep the two young people under the same roof with the opportunity to continue their illicit
relations would create a very embarrassing situation for the girl's mother.

Taking into consideration the facts stated, we do not think that the plaintiffs' separation from the
husband in unjustified. Ordinarily, it is not the fault of one that two quarrel, and in all probability,
the plaintiff is not free from blame, but she was virtually driven out of their home by her husband
and threatened with violence if she should return. Under these circumstances, to compel the
plaintiff to cohabit with her husband can only lead to further quarrels and would probably be
unfortunate for both parties. The separation therefore seems necessary.
As to the plaintiff's maintenance allowance it is the evident that the sum of P500 monthly is
much too large and that an allowance of P50 per month is all that ought be granted at present.
The fifth assignment of error relates principally to the plaintiff's prayer for an allowance of
attorney's fees. Under the circumstances of the case, we do not think that the court below erred
in refusing to grant such allowance.
The judgment appealed from is therefore modified, and it is ordered that the defendant, Isabelo
Santiago, pay to the plaintiff the sum of P50 per month for her maintenance and that such
payments be made within the first ten days of each month. No costs will be allowed. So ordered.
Johnson, Street, Malcolm, Villamor, Romualdez, and Villa-Real, JJ., concur.
NATURE OF THE CASE:
The case at bar is an APPEAL from a judgment of the Court of First Instance of Nueva
Ecija.
This is an appeal by the plaintiff from a judgment of the Court of First Instance of Nueva Ecija
dismissing the complaint.
FACTS:
1. April 8, 1910- alleged date of marriage between the plaintiff, Cipriana Garcia and the
defendant, Isabelo Santiago.
2. February 3, 1925- the date when the plaintiff was compelled to leave her conjugal dwelling
due to continued family dissensions.
3. Alejo Santiago (Defendant No. 2)-Son of Isabelo Santiago (Defendant No. 1)-allegedly
seduced Prisca Aurelio
4. Prisca Aurelio
daughter of Cipriana Garcia (the Plaintiff)- gave birth to a child that was allegedly Alejo
Santiagos child
5. Isabelo Santiago-failed to see the vindication of the honor of Prisca Aurelio, the plaintiffs
daughter by requiring his son to marry her.
- refused to get involved with the matter, thus seemingly countenancing the illicit relations
between his son and the plaintiffs daughter
-has allegedly conveyed/been conveying their conjugal properties to Alejo to foster latters
whims & caprices and thus, damaging & prejudicing her rights. Some of these properties include
lands acquired during the plaintiffs and the defendants marriage with money belonging to the
conjugal partnership.-publicly maintained illicit relationship with Geronima Yap
6. February 3, 1925-separation of the plaintiff and defendant.-the separation was necessary to
avoid personal violence
7. Isabelo Santiago- continually refused to provide for the plaintiffs support
8. Cipriana Garcia (the plaintiff)-could not live in their conjugal dwelling because of the illicit
relationship between her daughter, Prisca Aurelio and Alejo Santiago, countenanced by the
other defendant, Isabelo Santiago.-demanded that she is entitled to P500.00 pendente lite
monthly pension from conjugal partnership-claimed that her husband, Isabelo Santiago
(Defendant No. 1)has shown himself unfit to administer the property of conjugal partnership and
the court should therefore order its administration to be placed in her hands.
ISSUE/RATIONALE:
1. Whether their separation is unjustified. NO. They were having a stormy life prior to the
separation due to the frequent fights. Isabelo ordered her to leave the house &threatened to illtreat her if she returned. Priscas situation is embarrassing for her mother. Highly possible that
Alejo caused Priscas pregnancy. Compelling them to cohabit could lead to further quarrels.
2. Whether transfers of property from Isabelo to Alejo are illegall.NO. Failed to prove that
property was community property. Documentary evidence even show that it was acquired by
Isabelo before their marriage.
3.Whether Cipriana is entitled to P500.00 monthly maintenance
NO. Thats too much. P50.00 would be enough.
4. Whether Isabelo is unfit to administer their conjugal property NO. No sufficient reason found
to deprive him of this right.
5. Whether Cipriana is entitled to an allowance of attorneys fees. NO.
HELD: That the judgment appealed from is therefore modified. Separation is allowed. Isabelo is
ordered to provide Cipriana with a P50.00monthly allowance to be paid within the first 10 days of
the month. No costs allowed.
PILAR ATILANO, plaintiff-appellee, vs. CHUA CHING BENG, defendant-appellant.
Quisumbing, Sycip & Associates for appellant. Jose G. Bermas, Jr. for appellee.
FELIX, J.: The facts of this case as appearing on record and in the stipulation submitted by the
parties and approved by the lower court, are as follows:
Chua Ching Beng and Pilar Atilano were joined in lawful wedlock in Zamboanga City in May of
1951, after which marriage, the couple sailed for Manila and established their residence with the
parents of the husband. In October of the same year, at the husband's initiative, they went to
Zamboanga City to pay the parents of the wife a visit, and it seems that he was prevailed upon
by the wife's parents to return to Manila leaving her behind, with the understanding that she
would follow him later, which apparently she failed to do.
On September 30, 1953, Pilar Atilano filed with the Court of First Instance of Zamboanga a
complaint for support against her husband, alleging that they had been estranged and living
separately since October, 1952, by reason of incessant marital bickerings and quarrels brought
about by incompatibility of temperament and above all, by defendant's inability to provide for
themselves a home separate from the latter's parents; that she was staying with her parents in
Zamboanga City, without employment nor had she any property of her own. She therefore,
prayed that as defendant was under legal obligation to support her, he be ordered to give her a
monthly allowance, P200.00 from the date of the filing of the complaint.

Defendant husband filed his answer contending that when they were still residing in Manila, their
married life was characterized by harmony and understanding; that when they visited plaintiffs
parents in Zamboanga in October 1952, he was prevailed upon by the latter to allow his wife to
stay with them a while with the understanding that she would follow him later to Manila; that
through insidious machinations, plaintiff's parents caused her to be alienated from him resulting
in her refusal to return to Manila and live with her husband again; that defendant went back to
Zamboanga City to fetch her, but through force and intimidation she was prevented by her
parents from going with him; and that her parents also exerted undue pressure and influence
upon his wife to file the complaint. Defendant further averred that while he was not evading his
obligation to support his, he preferred to fulfill said duty by receiving and maintaining her in
Manila; that as the husband, defendant had the right to fix the residence of his family, and he
would even be willing to establish a conjugal dwelling in Manila separate from that of his parents
if that was the plaintiff's desire. Thus, it was prayed that the complaint be dismissed.
In the meantime, plaintiff filed a petition for alimony pendente lite premised on the same facts
as, stated in her complaint, which was duly opposed by the defendant, and on May 3, 1954,
based on stipulation of facts agreed upon by the parties, the court rendered judgment granting
the wife a monthly allowance of P75 after finding that the wife's refusal to return to Manila was
caused by her aversion to stay with the parents of her husband after she had experienced some
previous in-law troubles; that her demand that they establish their home in Zamboanga could
not be met by the husband because of the latter's job in Manila and due also to the husband's
fear that his wife would always be under the influence and pressure of the latter's parents. No
evidence was, however, adduced to support her allegation of incompatibility of temperament and
marital quarrels, and upon receipt of the decision, defendant filed a petition electing to fulfill his;
obligation as thus fixed by the trial court by receiving and maintaining plaintiff at his residence at
Pasay City, which was, apart, from that of his parents, with the prayer that in the event, plaintiff
would refuse to receive support under that set-up, that he be declared under, no compulsion to
remit the allowance to her at Zamboanga City. As it was denied, defendant brought the matter to
the Court of Appeals, but this Tribunal certified the case to Us for adjudication pursuant to the
provisions of Section 17-6 of Republic Act No. 296. The only question presented for, our
consideration by this appeal is whether a wife is entitled to received support from his husband
where she refused to live with him on account of some misunderstanding she had with the
husband's immediate relatives.
It is clear to Us, and this is borne out by the findings, of the court a quo, that plaintiff wife, then
19 yeas of age, had the unfortunate experience of finding herself in some sort of domestic
controversy, with her husband's immediate relatives in the opposite camp, which made her feel
that living with them would already be intolerable and unbearable. Most likely, therefore, when
they visited her parents, she recounted her plight to them and as the usual reaction of parents in
matters of this nature, they picked up and championed the cause of their daughter which
resulted in the estrangement of the young couple. Indeed disagreement among in-laws is a
problem as old as the world itself, but despite this discouraging facet of married life there would
always be in-laws as long there are marriages and the same vicious cycle would be repeated. In
the case at bar, which is a clear illustration of this perennial domestic problem, We find that
while the wife remains adamant on her stand to effect a separation in fact between her and her
husband, the latter, has adopted a more conciliatory attitude by acknowledging his obligation to
support her and even going to the extent of expressing his willingness to abide by her wish to
have a conjugal dwelling apart from his parents, although it, appears that he may find it hard to
make adequate provisions for their family, for he is allegedly receiving a salary of only 170 a
month as salesman in a commercial firm. Defendant does not dispute that our civil Code
imposes on the husband the responsibility of maintaining and supporting, his wife and the rest of
the family (Art. 111). He insists, however, that under the, Civil Code, which provides:
ART. 299. The person obliged to give support may, at his option, fulfill his obligation either by
paying the allowance fixed, or by receiving and maintaining in his house the person who has a
right to receive support. The latter alternative cannot be availed of in this case there is a moral
or legal obstacle thereto;
he is given the option to fulfill the said duty either by paying the allowance as fixed by the Court
or receiving and maintaining the person entitled thereto in his house; and that he elects to
perform his obligation by the second means allowed him by law.
The aforeqouted provision of the law is clear enough to require any further elucidation. In giving
the obligor the option to fulfill his duty, it provides for only one occasion when the second
alternative could not be availed of i.e., when there is a moral or legal obstacle thereto. It is true
that plaintiff wife charged that they were estranged because of marital troubles and incessant
bickering. While physical ill-treatment may be ground to compel a husband to provide a separate
maintenance for his wife ( Arroyo vs. Vasquez de Arroyo, 42 Phil., 54 ) said allegation was not
proved during the trial. Instead, the lower court found that the root-cause of all their differences
could be traced to disagreements common among relatives by affinity. Certainly, We do not think
that misunderstanding with in-laws, who may be considered third parties to the marriage, is the
moral or legal obstacle that the lawmakers contemplated in the drafting of said provision. The
law, in giving the husband authority to fix the conjugal residence (Art. 110), does not prohibit him
from establishing the same at the patriarchal home, nor is it against any recognized norm of
morality, especially if he is not fully capable of meeting his obligation as such head of a family
without the aid of his elders. But even granting arguendo that it might be "illegal" for him to
persist on living with his parents over the objection of his wife, this argument becomes moot in
view of defendant's manifestation that he is willing to establish a residence, separate from his
parents, if plaintiff so desires. We are aware are that although the husband and the wife are,
obliged to live together, observe mutual respect and fidelity and render mutual help and
assistance ( Art. 109), and that the wife is entitled to be supported, our laws contain no provision
compelling the wife to live with her husband where even without legal justification she
establishes her residence apart from that provided for by the former, yet and in such event We
would see no plausible reason why she should be allowed any support from the husband. It
appearing that defendant husband availed of the option granted him by Article 299 of the Civil
Code and there being no legal or moral hindrance to the exercise of the second alternative as
elected by him, the answer to the question presented by this appeal is certainly obvious.

Wherefore, the decision appealed from is hereby modified by giving the defendant husband
Chua Ching Beng the option of supporting his wife at their conjugal dwelling apart from the
home of the parents of the husband. Should plaintiff wife refuse to abide by the terms of this
decision, then the defendant-appellant shall be considered relieved from the obligation of giving
any support to his wife. Without pronouncement as to costs. It is so ordered. Paras, C.J.,
Bengzon, Padilla, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L. and Endencia,
JJ., concur.
Facts: Married on May 1951. Went to Zamboanga, husband left her with her parents for a while
with her promise that she would go back to Manila. She didnt. Sept 30 1953. Atilano filed for
support of 200/month against her husband in the premise that they were living separately since
Oct 1952 due to their bickering. Husband replied that he preferred to support her in their own
conjugal home in Manila.
Was awarded 75/month but with the observation that separation was due more to in-laws than
Anything else and her demand to move to a different house from them
ISSUE: WON wife is entitled to receive support from her husband when she is the one who left
the conjugal dwelling
HELD: depends on the situation, in this case NO
ART. 299. The person obliged to give support may, at his option, fulfill his obligation either by
paying the allowance fixed, or by receiving and maintaining in his house the person who has a
right to receive support. The latter alternative cannot be availed of in this case there is a moral
or legal obstacle thereto;
Thus, husband is only obliged to pay for support if there is moral or legal reason for him not to
provide support in own home.
In this case, the primary reason for her leaving are the in-laws and even if this would be seen as
legal basis, the fact that husband promised that if she came home he would provide a separate
home for them negates this basis. RESULT: has option of supporting his wife at their conjugal
dwelling apart from the home of the parents of the husband. Should plaintiff wife refuse to abide
by the terms of this decision, then the defendant-appellant shall be considered relieved from the
obligation of giving any support to his wife.
JULIA DEL ROSARIO, ET AL., Plaintiffs-Appellants, v. ANTONIO DEL ROSARIO, ET
AL.,Defendants-Appellees. Galo Al. Acua for Appellants. M. H. de Joya and Fidel J.
Silva for Appellees.
SYLLABUS
1. LIQUIDATION OF CONJUCAL PARTNERSHIP; ACT No. 3176; PENDENCY OF
TESTAMENTARY PROCEEDINGS EXCLUDES ANY OTHER PROCEEDING AIMED AT THE
SAME PURPOSE. Act No. 317(; only amends the former law in the sense that upon the
death of any of the spouses the community property shall be liquidated in the testamentary or
intestate proceedings of the deceased spouse. But whatever law might be applicable, and even
assuming that it was that prior to act No. 3176, the intestate of R. del R. not having been
commenced upon his death in 1895 until his widow F. A. also in 1933, and the testamentary
proceedings of F. A. having been subsequently initiated, wherein, among other things, the
liquidation of her conjugal properties with the deceased R. del R. should be made, the pendency
these testamentary proceedings of the deceased wife excludes any other proceeding aimed at
the purpose (Zaide v. Concepcion and Quintana, 32 Phil., 403). At any rate, the plaintiffs have a
right to intervene in these proceedings as parties interested in the liquidation and partition of the
conjugal properties of the deceased spouses R. del R. and F. A. among their heirs.
D E C I S I O N AVANCEA, C.J. : The complaint alleges: That Ramon del Rosario and
Florencia Arcega were husband and wife, the former having died in 1895 and the latter in 1933;
that the plaintiffs and the defendants are the heirs of both; that Ramon del Rosario died without
a will, leaving properties of the conjugal partnership valued at P19,000; that after the death of
Ramon del Rosario, his widow Florencia Arcega administered these properties and with the
products thereof acquired others, which are those described in paragraph 9 of the complaint. It
is, moreover, inferred from the complaint that after the death of Ramon del Rosario, his intestate
was not commenced and the conjugal properties were not liquidated until Florencia Arcega died,
after which the latters testamentary proceedings were initiated and are now in progress.
The plaintiffs bring this action to recover their share not only in the conjugal properties left by
Ramon del Rosario but also in those acquired by Florencia Arcega with the products of said
properties.
A demurrer was interposed to the complaint on the ground that there is another action pending
between the same parties and for the same cause of action; that there is a defect of party
plaintiffs and party defendants, and that the complaint does not allege facts sufficient to
constitute a cause of action.
The court sustained this demurrer and dismissed the case. From this resolution an appeal was
taken.
Both in the Court of First Instance as well as in this court, the parties discuss whether Act No.
3176, or the former law, is applicable to the case. Act No. 3176 only amends the former law in
the sense that upon the death of any of the spouses the community property shall be liquidated
in the testamentary or intestate proceedings of the deceased spouse. But whatever law might be
applicable, and even assuming that it was that prior to Act No. 3176, the intestate of Ramon del
Rosario not having been commenced upon his death in 1895 until his widow Florencia Arcega
also died in 1933, and the testamentary proceedings of Florencia Arcega having been
subsequently initiated, wherein, among other things, the liquidation of her conjugal properties
with the deceased Ramon del Rosario should be made, the pendency of these testamentary
proceedings of the deceased wife excludes any other proceeding aimed at the same purpose
(Zaide v. Concepcion and Quintana, 32 Phil., 403). At any rate, the plaintiffs have a right to
intervene in these proceedings as parties interested in the liquidation and partition of the
conjugal properties of the deceased spouses Ramon del Rosario and Florencia Arcega among
their heirs.
The appealed judgment is affirmed, with the costs to the appellants. So ordered. Villa-Real,
Imperial, Diaz, Laurel, Concepcion and Moran, JJ., concur.

X. C. Mutual help and support Arts 68 & 70 FC, compared with Art. 111 CC, Arts. 199-200
FC
Cases
Lisa Rae Ragsdale McGUIRE, Appellant, v. Charles Francis McGUIRE, Appellee.
Decided: September 30, 1999
Panel consists of Justices MIRABAL, HEDGES, and SMITH (Retired).* Lisa Rae Ragsdale
McGuire, Webster, pro se. Kevin Thomas McGuire, Houston, for Appellee.
OPINION
We affirm.Appellant, Lisa Rae Ragsdale McGuire (Wife), appeals from an order modifying
child support in favor of Charles Francis McGuire (Husband).
Facts
The final divorce degree incorporated the Agreement's provisions for child support and tax
exemptions. About seven months later, in 1993, Husband and Wife were divorced. In 1992,
Husband and Wife signed an agreement incident to divorce (Agreement), which required
Husband to pay $800 per month in child support and conditionally granted him the tax
exemptions for their three dependent children.
Wife appeals the trial court's order in four points of error. The trial court reduced Husband's
monthly child support payments from $800 to $288 and apportioned the tax exemptions
between Husband and Wife. 156.401 (Vernon 1996). See tex. Fam.Code Ann. He sought
to reduce his payment obligations, arguing that his circumstances had materially and
substantially changed. Less than three weeks later, Husband moved to modify the suit
affecting the parent-child relationship. In 1997, the trial court found him in contempt and
ordered him to pay the arrearages. In 1996, Husband stopped paying child support.
Standard of Review
Id. There is no abuse of discretion if some probative and substantive evidence supports the
order. Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.-Houston [1st Dist.] 1993, writ denied).
Id. The reviewing court must view the evidence in the light most favorable to the trial court's
actions and indulge every legal presumption in favor of the order. The test is whether the trial
court acted arbitrarily, unreasonably, or without reference to guiding rules and principles.
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). A trial court's ruling on child support will
not be reversed on appeal unless there is a clear abuse of discretion.
Agreement Incident to Divorce
In her first point of error, Wife contends that the trial court erred by not enforcing the Agreement
for child support and tax exemptions.1
Id. Nonetheless, even if we consider the merits, we affirm the trial court's order.Id. Because
Wife's first point of error is multifarious, we may overrule it on that basis. A point of error is
multifarious when it embraces more than one specific ground of error. Hollifield v. Hollifield, 925
S.W.2d 153, 155 (Tex.App.-Austin 1996, no writ). A complaint on appeal must address specific
errors and not merely attack the trial court's order in general terms. See tex.R.App. P. 38.1(e).
Wife's first point of error does not direct this Court's attention to any specific error on which she
bases her complaint.
In other words, she contends that the $800 obligation in the Agreement should continue to exist
as a separate source of liability. Instead, Wife argues that the trial court should have enforced
the prior Agreement at the modification hearing. There is no dispute as to whether the trial
court had the authority to reduce the support payments in the decree. Both the Agreement and
decree required Husband to pay $800 per month in child support. Turning to the merits,
Husband and Wife signed the Agreement, which was later incorporated by reference into their
final divorce degree.
Id. We find this reasoning persuasive.Id. This Court held in Leonard that the trial court could
modify the court-ordered support payments, notwithstanding any agreements of the parties, if it
was in the child's best interest. Id. Instead, he counterclaimed for breach of contract. Id. The
father in Leonard did not dispute whether the trial court could modify its own judgment. Id. The
mother's motion to modify in Leonard, like Husband's motion in this case, sought to modify only
the court-ordered support, not the contractual agreement. In Leonard, as in this case, the
father's child support liability stemmed from two separate sources: (1) the contractual
agreement incident to divorce and (2) the court-ordered judgment. See Leonard v. Lane, 821
S.W.2d 275, 277 (Tex.App.-Houston [1st Dist.] 1991, writ denied). This Court has previously
held that an agreement incident to divorce does not prohibit a modification of support payments.
Id.Id. The father, therefore, remained obligated to pay the contractual child support. Id.
Accordingly, the contract continued to exist as a separate source of liability. Id. The court
decreased the support payments, thereby affecting only the court-ordered judgment, not the
contract. Id. Because contract rules governed the contract, the trial court could not modify it in
the absence of fraud, accident, or mistake, except by consent of the parties. In Ruhe, the
father's child support liability also stemmed from both the contract and the judgment. In
contrast, the case of Ruhe v. Rowland, 706 S.W.2d 709, 710 (Tex.App.-Dallas 1986, no writ),
appears to support Wife's argument.
Id. at 431. The order in Alford specifically stated that it was completely separate and apart
from and had no bearing on any contract between the parties. Similarly, Alford v. Alford, 487
S.W.2d 429, 434 (Tex.Civ.App.-Beaumont 1972, writ dism'd), held that a court cannot modify a
contractual settlement agreement relating to child support without the legal prerequisites for
contract modification.
Moreover, Wife concedes that the Agreement was attached to and was ordered and
incorporated into the decree. Both the Agreement and decree ordered the same support
amounts and payment schedules. To the contrary, the Agreement stated that it shall become
incorporated by reference into the decree. See tex.R.App. P. 38.1(h). Nor did Wife provide
any record citations to prove that the Agreement and decree were intended to be separate.
Alford is distinguishable because, after searching the record in this case, we found no such
language in either the Agreement or the decree.
Leonard, 821 S.W.2d at 277; Hoffman, 805 S.W.2d at 851.Id. Consequently, a court may
modify a child support agreement that was incorporated into a decree. Once the court
approves the agreement and makes it a part of the judgment, the agreement is no longer merely
a contract between private individuals, but is the judgment of the court. Rivera v. Office of

Attorney Gen., 960 S.W.2d 280, 283 (Tex.App.-Houston [1st Dist.] 1997, no pet.). When an
agreement is incorporated into a divorce decree, the decree is a consent judgment.
See Leonard, 821 S.W.2d at 277; Hoffman, 805 S.W.2d at 851. Thus, the trial court had the
authority to modify Husband's payment obligations. It became a court judgment once it was
incorporated into the decree. Likewise, the Agreement in this case was not merely a contract.

We hold that the trial court had the authority to modify the divorce decree and did not abuse its
discretion in failing to enforce the Agreement incident to divorce. Id. Because neither the
divorce decree nor the Agreement provided that the terms were enforceable as contract terms,
contractual remedies are not available. Terms of the agreement in the divorce order may be
enforced by all remedies available for enforcement of a judgment, including contempt, but are
not enforceable as contract terms unless provided by the agreement. 154.124(c). tex.
Fam.Code Ann. Moreover, a child support agreement must specifically provide for contract
enforcement to be enforceable as a contract.
Additionally, in her first point of error, Wife contends that the trial court should have excluded
Husband's 1992 tax return because it predated the 1993 divorce decree.
Id. The relevant time period, however, began from the Ritter's 1980 divorce decree, not from
the 1987 order. Id. at 864. To support her argument, Wife relies on Ritter v. Wiggins, 756
S.W.2d 861 (Tex.App.-Austin 1988, no writ), in which the father proved that the circumstances
had not changed since a 1987 court order. 156.401 (Vernon 1996). tex. Fam.Code Ann. A
court may modify a child support order if the circumstances have materially and substantially
changed since the date of the order's rendition.
Thus, the trial court did not err in admitting Husband's 1992 tax return. The record, which
includes Husband's financial information for 1992, 1995, 1996, and 1997, reflects a substantial
and material change in Husband's circumstances since the 1993 divorce decree. Therefore,
the 1992 tax return predated the decree by less than two months, not by the seven years in
Ritter. Less than two months later, on February 23, 1993, the divorce decree was rendered.
Husband's 1992 tax return pertained to his income from January 1 through December 31, 1992.
Bradshaw v. Billups, 587 S.W.2d 61, 62 (Tex.Civ.App.-Eastland 1979, no writ) (two-year time
differential). Id.; cf. This case is distinguishable from the seven-year time differential in the
Ritter case.
tex.R.App. P. 3.1(a). Without a trial objection, Wife waived the right to raise this complaint on
appeal. Moreover, Wife did not object at the hearing when Husband's 1992 tax return was
introduced and admitted in evidence.
We overrule the first point of error.
Modification of Child Support
In her fourth point of error, Wife contends that the evidence is legally and factually insufficient to
establish a material and substantial change in Husband's circumstances.2
Hollifield, 925 S.W.2d at 155. The court retains broad discretion in modifying a prior support
order. 156.402(b). Id. at The primary consideration is the best interest of the child.
156.401 (Vernon 1996). tex. Fam.Code Ann. As set forth above, a trial court may modify a
child support order if the circumstances have materially and substantially changed.
His evidence included his own teHusband sought to reduce his child support payments,
arguing that his net income had decreased. In 1997, his projected earnings were about $1,218
per month. While still married in 1993, he left the company and started his own remodeling
business. Husband showed that in 1992, his salary as a full-time employee for a remodeling
company was about $2,255 per month. stimony, his accountant's testimony, and his financial
information for 1992, 1995, 1996, and 1997.
Id.Id. The court, therefore, reduced his support payments. Id. Nonetheless, he met his burden
of proving that his circumstances materially and substantially changed. Unfortunately, the new
job was not as lucrative as the previous one. Like Husband, the father in Starck v. Nelson, 878
S.W.2d 302, 308 (Tex.App.-Corpus Christi 1994, no writ), started a new job and did not foresee
what his future self-employment income would be.
Thus, the trial court did not abuse its discretion in finding that Husband's prospective monthly
net resources had decreased to $1,218.37. See Shoemate v. Winkley, 505 S.W.2d 357, 358-59
(Tex.Civ.App.-El Paso 1974, no writ). Because the trial court had knowledge of the case from
the time of the divorce until the modification hearing, it was in a better position than this Court to
consider the evidence. See Tucker v. Tucker, 908 S.W.2d 530, 534 (Tex.App.-San Antonio
1995, writ denied). The trial court in this case was free to believe or disbelieve Husband's
evidence.
We hold that the record before us does not disclose a clear abuse of discretion.154.122(a)
(Vernon 1996). tex. Fam.Code Ann. An order that conforms to the guidelines, such as the
order in this case, is presumed to be reasonable and in the best interest of the child. Moreover,
the trial court's prospective child support order of $288.80 per month did not vary from the
Family Code's guidelines.
We overrule the fourth point of error.
Needs of the Children
In her second point of error, Wife contends that the trial court erred when it did not set the child
support based on the needs of the children.
For example, some of the additional factors are:156.402(b) (Vernon 1996). tex. Fam.Code
Ann. In addition to the Family Code's guidelines, a trial court may consider other relevant
evidence in ordering child support.
the age and needs of the child;(1)
the ability of the parents to contribute to the support of the child;(2)
any financial resources available for the support of the child; and (3)
any other reason consistent with the best interest of the child, taking into consideration the
circumstances of the parents.(17)
Hoffman v. Hoffman, 805 S.W.2d 848, 851 (Tex.App.-Corpus Christi 1991, writ The trial court,
therefore, retains broad discretion. 154.123(b) (Vernon 1996). tex. Fam.Code Ann. denied).
We hold that the trial court did not err in failing to set child support on the additional factor
regarding the needs of the children. This factor, however, is only one of a nonexhaustive list of
seventeen additional factors that a court may consider. Nevertheless, Wife argues that the

trial court should have considered the needs of the children. 154.122(a). tex. Fam.Code
Ann. Here, the support order is presumed to be reasonable and in the best interest of the
child because it did not vary from the Family Code's guidelines.
Baucom v. Crews, 819 S.W.2d 628, 631 (Tex.App.-Waco 1991, no writ). Additional proof
regarding the children's needs was not necessary. As set forth above in point of error four,
Husband proved that his own circumstances had materially changed. 156.401. Under the
statute, Husband was not required to prove both. tex. Fam.Code Ann. Husband was
required to prove that the circumstances of either the child or a person affected by the order
had materially changed. Wife also contends that the evidence is legally and factually
insufficient to show that needs of the children had materially changed.
We overrule the second point of error.
Intentional Underemployment
154.066 (Vernon 1996). tex. Fam.Code Ann. In her third point of error, Wife contends that
the trial court should have based the child support on Husband's earning potential, instead of on
his actual earnings, because Husband was intentionally underemployed.
Wife argues that Husband could earn more money as a salaried, full-time employee, either in
the remodeling business or as a certified teacher. In 1996, he earned about $15,000, and
expected to earn a little less than that in 1997. Husband became self-employed in the
remodeling business because it appeared more lucrative than teaching.
Instead, he was forced to start his own business in 1993 because companies began to use
contract labor to save money and don't have people like [him] anymore. He explained that he
was not intentionally underemployed. Moreover, Husband testified that he doubted if he could
make more money working for another company. Husband's self-employment income fell
within that range. Regarding the remodeling business, Husband's accountant testified that
incomes range anywhere from $12,000 yearly up to $20,000, but rarely up to $28,000.
In fact, he had previously earned only $11,200 per year as a certified teacher. However,
Husband argued that he did not have enough teaching experience to earn a salary in the higher
range. Regarding teaching, evidence was presented that teachers earn between $23,000 and
$33,000 per year.
We hold that the trial court did not err in failing to set child support on Husband's earning
potential. See Starck, 878 S.W.2d at 308. Accordingly, it is possible that Husband may not
have obtained greater financial resources by working for a different company. See Tucker, 908
S.W.2d at 534. The trial court was free to believe or disbelieve Husband's testimony. He
further testified that other jobs would not provide a higher salary. See Starck, 878 S.W.2d at
308. Husband testified that he thought self-employment would be more lucrative; however,
he surely did not foresee that his earnings would decrease. The trial court did not make
findings on the issue of intentional underemployment.
We overrule the third point of error.
We affirm the order of the trial court.
FOOTNOTES
1 To support her argument that the trial court cannot amend the agreement incident to divorce,
she asserts various contract rules such as duress, lack of knowledge, mistake, and parol
evidence.Specifically, Wife complains that the trial court erred and abused its discretion when
it failed to enforce the agreement incident to divorce for child support and conditional use of the
federal tax exemptions because there is no evidence or insufficient evidence to support
extinguishing and merging the agreement setting child support into a post-judgment
modification of the 1993 consent decree. .
2Id. Even though Wife raises only sufficiency claims, we will address both the sufficiency and
abuse of discretion prongs of the inquiry. Once the reviewing court determines whether
sufficient evidence exists, it must then decide whether the trial court appropriately exercised its
discretion in applying the child support guidelines. Farish v. Farish, 921 S.W.2d 538, 542
(Tex.App.-Beaumont 1996, no writ). In the child support context, sufficiency challenges are not
independent points of error, but are incorporated into an abuse of discretion determination. .
ADELE HEDGES, Justice.
Facts. Plaintiff, Lydia McGuire, married Defendant, Charles McGuire, on August 11, 1919. At the
time of marriage Defendant was a bachelor of 46 or 47 years of age and had a reputation of
extreme frugality, of which Plaintiff was aware. Plaintiff had been previously married and had
inherited a one-third interest in 80 acres of land from her previous husband. Plaintiff brought an
action against Defendant to recover suitable maintenance and support money. Plaintiff testified
that defendant was a poor companion and that he would give her only small amounts of money
on request. Plaintiff worked the fields and did chores. For several years she had raised chickens
and sold poultry and eggs to buy clothing, things she wanted, and groceries. The house was not
equipped with a bathroom, bathing facilities, or an inside toilet. Plaintiff was privileged to use all
the rent money she wanted from the 80 acres of land. She used this money to visit her
daughters, and Defendant provided no fu
nds for such use. Plaintiff had three abdominal operations for which Defendant paid, but Plaintiff
was no longer able to raise chickens. Defendant had land in the value of $83,960, bank deposits
in the sum of $12,786.81, and income of $8,000 or $9,000 a year. Defendant appealed the trial
courts ruling in favor of Plaintiff, alleging that the decree was not supported by sufficient
evidence, and is contrary to law.
Issue. Was the trial court correct in its finding that when a wife is abandoned by her husband,
without means of support, a bill in equity will lie to compel the husband to support the wife
without asking for a divorce decree?
Held. To maintain such an action the parties must be separated or living apart from one another,
therefore the trial court erred.
The trial court found that it was well-established law that it is the duty of the husband to provide
for his family with support and means of living such as fit his means, position, and station of life.
Previous case law had held that a wife may bring a suit in equity to secure support and alimony
regardless of if the action is for divorce.
In the present case the marital relationship continued for over 33 years with no complaint from
the Plaintiff regarding her support. The parties were not separated or living apart at any time.
Public policy requires that the standards of a family are a matter of concern to the household,

and not for the courts to determine. As long as the home is maintained and the parties are living
as husband and wife the husband is legally supporting the wife.
Discussion. Without a showing of a termination of the marriage the Court found that it would be
contrary to public policy to force the husband to make specified payments to the wife.
ARTURO PELAYO, plaintiff-appellant, vs. MARCELO LAURON, ET AL., defendants-appellees.
J.H. Junquera, for appellant. Filemon Sotto, for appellee.
TORRES, J.: On the 23rd of November, 1906, Arturo Pelayo, a physician residing in Cebu, filed
a complaint against Marcelo Lauron and Juana Abella setting forth that on or about the 13th of
October of said year, at night, the plaintiff was called to the house of the defendants, situated in
San Nicolas, and that upon arrival he was requested by them to render medical assistance to
their daughter-in-law who was about to give birth to a child; that therefore, and after consultation
with the attending physician, Dr. Escao, it was found necessary, on account of the difficult birth,
to remove the fetus by means of forceps which operation was performed by the plaintiff, who
also had to remove the afterbirth, in which services he was occupied until the following morning,
and that afterwards, on the same day, he visited the patient several times; that the just and
equitable value of the services rendered by him was P500, which the defendants refuse to pay
without alleging any good reason therefor; that for said reason he prayed that the judgment be
entered in his favor as against the defendants, or any of them, for the sum of P500 and costs,
together with any other relief that might be deemed proper.
In answer to the complaint counsel for the defendants denied all of the allegation therein
contained and alleged as a special defense, that their daughter-in-law had died in consequence
of the said childbirth, and that when she was alive she lived with her husband independently and
in a separate house without any relation whatever with them, and that, if on the day when she
gave birth she was in the house of the defendants, her stay their was accidental and due to
fortuitous circumstances; therefore, he prayed that the defendants be absolved of the complaint
with costs against the plaintiff.
The plaintiff demurred to the above answer, and the court below sustained the demurrer,
directing the defendants, on the 23rd of January, 1907, to amend their answer. In compliance
with this order the defendants presented, on the same date, their amended answer, denying
each and every one of the allegations contained in the complaint, and requesting that the same
be dismissed with costs.
As a result of the evidence adduced by both parties, judgment was entered by the court below
on the 5th of April, 1907, whereby the defendants were absolved from the former complaint, on
account of the lack of sufficient evidence to establish a right of action against the defendants,
with costs against the plaintiff, who excepted to the said judgment and in addition moved for a
new trial on the ground that the judgment was contrary to law; the motion was overruled and the
plaintiff excepted and in due course presented the corresponding bill of exceptions. The motion
of the defendants requesting that the declaration contained in the judgment that the defendants
had demanded therefrom, for the reason that, according to the evidence, no such request had
been made, was also denied, and to the decision the defendants excepted.
Assuming that it is a real fact of knowledge by the defendants that the plaintiff, by virtue of
having been sent for by the former, attended a physician and rendered professional services to
a daughter-in-law of the said defendants during a difficult and laborious childbirth, in order to
decide the claim of the said physician regarding the recovery of his fees, it becomes necessary
to decide who is bound to pay the bill, whether the father and mother-in-law of the patient, or the
husband of the latter.
According to article 1089 of the Civil Code, obligations are created by law, by contracts, by
quasi-contracts, and by illicit acts and omissions or by those in which any kind of fault or
negligence occurs.
Obligations arising from law are not presumed. Those expressly determined in the code or in
special laws, etc., are the only demandable ones. Obligations arising from contracts have legal
force between the contracting parties and must be fulfilled in accordance with their stipulations.
(Arts. 1090 and 1091.)
The rendering of medical assistance in case of illness is comprised among the mutual
obligations to which the spouses are bound by way of mutual support. (Arts. 142 and 143.)
If every obligation consists in giving, doing or not doing something (art. 1088), and spouses are
mutually bound to support each other, there can be no question but that, when either of them by
reason of illness should be in need of medical assistance, the other is under the unavoidable
obligation to furnish the necessary services of a physician in order that health may be restored,
and he or she may be freed from the sickness by which life is jeopardized; the party bound to
furnish such support is therefore liable for all expenses, including the fees of the medical expert
for his professional services. This liability originates from the above-cited mutual obligation
which the law has expressly established between the married couple.
In the face of the above legal precepts it is unquestionable that the person bound to pay the
fees due to the plaintiff for the professional services that he rendered to the daughter-in-law of
the defendants during her childbirth, is the husband of the patient and not her father and motherin-law, the defendants herein. The fact that it was not the husband who called the plaintiff and
requested his assistance for his wife is no bar to the fulfillment of the said obligation, as the
defendants, in view of the imminent danger, to which the life of the patient was at that moment
exposed, considered that medical assistance was urgently needed, and the obligation of the
husband to furnish his wife in the indispensable services of a physician at such critical moments
is specially established by the law, as has been seen, and compliance therewith is unavoidable;
therefore, the plaintiff, who believes that he is entitled to recover his fees, must direct his action
against the husband who is under obligation to furnish medical assistance to his lawful wife in
such an emergency.
From the foregoing it may readily be understood that it was improper to have brought an action
against the defendants simply because they were the parties who called the plaintiff and
requested him to assist the patient during her difficult confinement, and also, possibly, because
they were her father and mother-in-law and the sickness occurred in their house. The
defendants were not, nor are they now, under any obligation by virtue of any legal provision, to

pay the fees claimed, nor in consequence of any contract entered into between them and the
plaintiff from which such obligation might have arisen.
In applying the provisions of the Civil Code in an action for support, the supreme court of Spain,
while recognizing the validity and efficiency of a contract to furnish support wherein a person
bound himself to support another who was not his relative, established the rule that the law does
impose the obligation to pay for the support of a stranger, but as the liability arose out of a
contract, the stipulations of the agreement must be held. (Decision of May 11, 1897.)
Within the meaning of the law, the father and mother-in-law are strangers with respect to the
obligation that devolves upon the husband to provide support, among which is the furnishing of
medical assistance to his wife at the time of her confinement; and, on the other hand, it does not
appear that a contract existed between the defendants and the plaintiff physician, for which
reason it is obvious that the former can not be compelled to pay fees which they are under no
liability to pay because it does not appear that they consented to bind themselves.
The foregoing suffices to demonstrate that the first and second errors assigned to the judgment
below are unfounded, because, if the plaintiff has no right of action against the defendants, it is
needless to declare whether or not the use of forceps is a surgical operation.
Therefore, in view of the consideration hereinbefore set forth, it is our opinion that the judgment
appealed from should be affirmed with the costs against the appellant. So ordered.
Mapa and Tracey, JJ., concur. Arellano, C.J., and Carson, J., concurs in the result. Willard,
J., dissents.
FACTS: Petitioner Pelayo, a physician, rendered a medical assistance during the child delivery
of the daughter-in-law of the defendants. The just and equitable value of services rendered by
him was P500.00 which the defendants refused to pay without alleging any good reason. With
this, the plaintiff prayed that the judgment be entered in his favor as against the defendants for
the sum of P500.00 and costs.
The defendants denied all of the allegation of the plaintiff, contending that their daughter-in-law
had died in consequence of the child-birth, and that when she was alive, she lived with her
husband independently and in a separate house, that on the day she gave birth she was in the
house of the defendants and her stay there was accidental and due to fortuitous circumstances.
ISSUE: Whether or not the defendants are obliged to pay the petitioner for the medical
assistance rendered to their daughter-in-law.
HELD: According to Article 1089 of the Old Civil Code (now 1157), obligations are created by
law, by contracts, by quasi-contracts, by illicit acts and omissions or by those which any kind of
fault or negligence occurs. Obligations arising from law are not presumed. Those expressly
determined in the Code or in special law, etc., are the only demandable ones.
The rendering of medical assistance in case of illness is comprised among the mutual
obligations to which the spouses are bound by way of mutual support as provided by the law or
the Code. Consequently, the obligation to pay the plaintiff for the medical assistance rendered to
the defendants daughter-in-law must be couched on the husband.
In the case at bar, the obligation of the husband to furnish his wife in the indispensable services
of a physician at such critical moments is especially established by the law and the compliance
therewith is unavoidable.
X. D. Management of the household Art. 71, FC compared with Art. 115, NCC
Case
Robert S. YOUNG, Appellant, v. Alice G. HECTOR, Appellee.
96-2847.No.
Decided: June 24, 1998
Before SCHWARTZ, C.J., and NESBITT and GODERICH, JJ.Before SCHWARTZ, C.J., and
NESBITT, JORGENSON, COPE, LEVY, GERSTEN, GODERICH, GREEN, FLETCHER, and
SORONDO, JJ.* Barbara Green, Coral Gables; Ellen Lyons, Miami, for appellant. Young,
Berman, Karpf, and Burton Young, and Andrew S. Berman, Miami Beach; Hector and Harke,
and Lance A. Harke, Miami; Amy D. Ronner, Miami, for appellee on rehearing.
We reverse and remand for further proceedings.This is an appeal from a final judgment of
dissolution of marriage.
Since the children were born, the parties have always had either a live-in nanny, au pair, or
housekeeper, who has helped care for the children. The parties have two daughters, Baylor,
who was born in 1985, and Avery, who was born in 1988. The record indicates that the parties
were married in New Mexico in February 1982.
The architect was very successful until the stock market crashed in October 1987.At the time
of their marriage, one spouse, an architect, was involved in several business ventures, including
a publishing company and a custom-home building firm.
The attorney's income would vary somewhere between $30,000 and nearly $100,000 per
year.The other spouse was an attorney, who, at the time of the parties' marriage, had a law
firm.
During the 14-month period, the children remained in Miami with the attorney, but the children
visited with the architect approximately every five weeks. In the summer of 1992, the architect
returned to New Mexico for approximately 14 months to direct a treasure recovery project.
Shortly thereafter, the attorney and the children relocated to Miami, while the architect remained
in New Mexico for six months to finish several projects and to sell the parties' home. In 1989,
the attorney found employment at a prestigious, mid-sized law firm earning approximately
$120,000 per year. The architect told the attorney that if the attorney could find a job in Miami,
the architect would be willing to relocate. After the parties' youngest child was born, the parties
discussed a possible relocation to Florida.
The attorney filed for divorce in May 1995. Upon the architect's return, the parties separated
although they both continued to live in the marital home. Shortly after the attorney accepted
the position with the new firm, the architect returned to Florida. In the fall of 1993, the attorney,
who by this time was earning approximately $275,000 with the mid-sized law firm, accepted a
shareholder position at one of Florida's largest law firms earning over $300,000 per year.
The evidence included the testimony of the parties, neighbors, friends, the children's teacher,
school counselor, and the managing partner of the law firm where the attorney is currently

employed.At trial, the court accepted evidence relating to alimony, child custody, and the
equitable division of the marital assets and liabilities.
In addition to the attorney's employment at the law firm, the attorney also teaches at a law
school. The cases that required the attorney to travel to Central Florida have been settled, and
the attorney's remaining cases will no longer require the attorney to travel outside of Miami.
When traveling, the attorney would either leave Miami very early in the morning and return late
at night, or would stay in Central Florida overnight. Moreover, during the past two years, the
attorney has had several cases that have required the attorney to travel to Central Florida. On
the other hand, when the attorney is not in trial, the attorney works 45 to 50 hours per week.
The attorney testified that when the attorney is involved in a trial, the attorney works
approximately 12 to 14 hours per day, six to seven days per week.
Further, he stated that the average litigation partner works 10 to 11 hours per day, and that
litigators cannot work only eight hours per day, five days per week. The managing partner also
testified that it is very easy to accommodate family problems when an attorney works in the
corporate or real estate department, but that it is very difficult to accommodate family problems
when an attorney works in the litigation department. The managing partner gave deposition
testimony stating that the attorney is a senior litigation partner and is responsible for major
cases.
The architect testified that both University of Miami and Florida International University have a
two-year masters program that will teach the necessary computer skills. The architect lacks the
computer skills that are needed to find employment as an architect in the present job market.
After the architect moved to Miami, the architect attempted to find employment, but was
unsuccessful. The parties testified that except for a few small remodeling jobs, the architect
has been unemployed for approximately six years.
For example, the architect started and led one of the children's Brownie troop, coached one of
the children's soccer team, regularly volunteered at the children's school, and takes the children
to doctor and dentist appointments.The record demonstrates that since returning to Miami in
the fall of 1993, the architect has been very dedicated to the children.
Third, the attorney controls [anger] better around the kids. There have been times in the
children's life when [the architect] has been, for whatever reasons, away from the home for
substantial periods of time and [the attorney] has been the dominant influence. Second, the
attorney has been the more constant factor throughout the entire relationship. First, the
attorney has been more economically stable throughout the marriage. The guardian ad litem
testified that he looked at three determinative factors in recommending that the attorney be
named the primary residential parent. The guardian ad litem also found that since the parties
have been living in Miami, the architect has been the dominant caretaker during the day, and
[the attorney] on weekends, although both pitch in as needed. The report states that the
architect is warmer and phenomenal with the children, and that the attorney tends to be
somewhat cooler by nature, but consistently spends time with the children and makes a point
out of doing things with them on weekends and when [the attorney] is available evenings. In
his report, the guardian ad litem recommended that the attorney be designated the primary
residential parent and that the architect be granted very liberal and frequent access to the
children. At trial, the guardian ad litem's report was introduced into evidence, and he also
testified at trial.
Further, she testified that the attorney is usually available on weekends and that the attorney's
work has not interfered with the ability to be a good parent. She also stated that the attorney is
involved in the children's activities, plays with the children, takes them to the movies, the beach,
and the zoo, and brings out their self-expression. Isabel Singleton, a neighbor and family
friend, testified that the architect pays attention to detail, is very goal-oriented, and very caring.
On the other hand, she testified that the attorney is the one who coordinates the sleepovers,
and that the attorney is at home on the weekends and in the evenings.Laura Mirabito, another
neighbor and family friend, testified that the architect has a very close relationship with the
children, coaches the soccer team, picks the children up from school, coordinates the children's
play dates, and participates in school activities.
Keith Chasin, who coached in the same soccer club as the architect, testified that the architect
interacts with the children well and is a good coach. He also stated that he has never met the
attorney.
Finally, she stated that all the children in the Brownie troop, including the parties' children,
adore the architect. Further, she described the architect as a devoted parent. Moreover,
the architect is the one who leads the Brownie troop, and at one meeting, one of the parties'
children stated that the attorney is never home and does not read the Brownie's paper. She
testified that the architect is one of the few parents who stays at parties that the children attend.
Further, the architect is the one who usually picks up the children from her house; the
attorney has only picked up the children approximately three times in the last four years. On
the other hand, she stated that she once saw the attorney arrive late and read law books during
the performance. Joan Hamel, the mother of one of the children's best friend, testified that the
architect gets to the children's school functions early and videotapes the children.
Whereas, the attorney's involvement was limited to dropping the children off at school eight to
ten times during the school year. For example, the architect made repairs to the classroom,
attended field trips, and participated in cooking and art activities. Dulce del Castillo, one of the
children's former pre-school teachers, testified that the architect constantly volunteered at the
school.
Finally, she stated that the architect volunteered for the second grade self-esteem program.
Further, when she sent home questionnaires, only the architect's questionnaire was returned.
Lynn Drittel, a school counselor, testified that the architect involved the children in the school's
divorce group.
Further, he stated that the architect was the caretaker on a daily basis, but that the attorney was
available and that the children responded well to the attorney. The attorney also attended the
Saturday games and the parent-child program. He also testified that the attorney was involved
in the parent-child soccer games, even though the games were played in the early afternoon.
He stated that the architect is a good parent, a good caretaker, patient with the children, and

involved in the children's daily activities. David Harper, a fellow parent and sports coach, also
testified.
Finally, Carol Lumpkin, who is a neighbor and family friend, testified that both parents are loving
and caring parents, and that both have a lot to offer the children.
The architect appeals from this final judgment. Finally, the architect was awarded $10,000 in
attorney's fees. The trial court also distributed the parties' marital assets and debts. The trial
court denied the architect's request for permanent alimony, but granted the architect four months
of rehabilitative alimony at $2,000 per month. The final order also provides that for one year
within five years of entry of this Final Judgment but not sooner than 2 years of entry herein of,
primary physical residence of the children shall be with the [architect]. After evaluating the
relevant statutory factors of section 61.13(3), Florida Statutes (1995), the trial court awarded
primary residential custody of the children to the attorney, with frequent and continuing contact
with the architect.
We agree.The architect contends that the trial court abused its discretion by granting primary
residential custody of the children to the attorney.
See Duchesneau v. Duchesneau, 692 So.2d 205, 206 (Fla. 5th DCA 1997); Cherradi v. Lavoie,
662 So.2d 751, 753 (Fla. 4th DCA 1995); Gardner v. Gardner, 545 So.2d 339, 340 (Fla. 4th
DCA 1989); Quirino v. Quirino, 459 So.2d 1183 (Fla. 3d DCA 1984). An appellate court must
affirm if there is substantial competent evidence to support the trial court's finding that the
custody award was in the best interests of the child. Sullivan v. Sullivan, 668 So.2d 329, 330
(Fla. 4th DCA 1996)(citing Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980)). A trial court's
determination of custody is subject to an abuse of discretion standard of review.
A trial court's The American Law Institute has addressed this issue in its Illustrations: Such a
continuation would clearly be in the best interests of the children. decision as to which parent
should be awarded primary residential custody of the children should attempt to preserve and
continue the caretaking roles that the parties had established.
Nancy argues that since she gave up being the primary caretaker for the benefit of the family
and not because of personal preference, Gary should not be favored based on his larger
caretaking role. Each wants primary custodial responsibility for the children. After eight years
of this arrangement, Gary and Nancy separated. When their second child was one year old,
they decided to switch roles because of Nancy's greater earning capacity. For the first four
years after their first child was born, Gary worked outside the home and Nancy was the primary
caretaker of the children. Gary and Nancy have three children, ages 12, 9, and 3. Gary is a
high-school graduate and Nancy, a veterinarian.
The court should allocate custodial responsibility based on the parents' past caretaking roles.
Nancy's fairness argument is irrelevant to how custodial responsibility should be allocated
2.09, at 121 (1998).Principles of the Law of Family Dissolution: Analysis and
Recommendations, Tentative Draft No. 3, Part I, American Law Institute,
It is clear from the record that it is the architect who is available to the children after school,
takes the children to the doctor and dentist appointments, and actively participates in the
children's school and after-school activities.In the instant case, the trial court's award of
primary residential custody of the children to the attorney has the effect of not continuing the
caretaking roles that the parties had established.
The record clearly indicates that the architect, with an adequate amount of child support, would
continue to provide for the children. The record in the instant case clearly indicates that the
architect, although not as financially fortunate as the attorney, has always, as the primary
caretaker, provided the children with food, clothing, shelter, and medical attention. When
balancing the statutory factors, the fact that one parent is the primary caretaker should always
outweigh the fact that the other parent is more financially stable. A parent's financial resources
is only one factor that must be balanced with the remaining statutory factors outlined in section
61.13(3), Florida Statutes (1995). 2.14, at 250 (1998). Principles of the Law of Family
Dissolution: Analysis and Recommendations, Tentative Draft No. 3, Part I, American Law
Institute, In light of the child support guidelines, a parent's financial resources (or lack of)
should not be a determinative factor in deciding which parent should be the primary residential
parent. Moreover, the guardian ad litem's testimony indicates that one of the determinative
factors in recommending that the attorney be designated the primary residential parent is that
the attorney has been more economically stable throughout the marriage.
Under the circumstances of this case, the fact that architect was away from the home prior to
the separation should not be a determinative factor where the architect has continually been
the primary caretaker since the fall of 1993.Moreover, the guardian ad litem's recommendation
was also based on the fact that architect has been away from the home for substantial periods
of time and [the attorney] has been the dominant influence.
However, on remand, the trial court should grant the attorney liberal and frequent access to the
children.Therefore, after reviewing the record, including the testimony of the parties and other
witnesses, we find that the trial court abused its discretion by awarding primary residential
custody of the minor children to the attorney.
Therefore, we reverse these awards and remand for further pro On remand, the trial court
should revisit these issues along with the issue of child support, especially in light of this Court's
disposition as to primary residential custody. Finally, the award of alimony to the architect was
inadequate in light of the rehabilitative plan presented by the architect and the lifestyle
established during the parties' marriage, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), the
distribution of the parties' assets and liabilities was inequitable, and the award of attorney's fees
to the architect was insufficient. ceedings, including evidentiary hearings, if necessary.
Reversed and remanded.
ON REHEARING EN BANC
Upon our rehearing en banc of this cause, we withdraw the prior panel opinion issued on June
24, 1998 and substitute the following opinion in its stead.
We affirm the trial court's decision designating the former wife/mother (Alice Hector) as the
primary custodial parent of the two minor children but reverse and remand the court's
determination as to rehabilitative alimony, distribution of the parties' assets and liabilities and
attorney's fees for further proceedings.The former husband/father (Robert Young) appeals from
the final judgment of dissolution of marriage.

Thus, there is no basis for us to overturn the lower court's decision. After laboriously reviewing
all of the record evidence in this case, we conclude that there was substantial competent
evidence to support the trial court's discretionary call in this regard. We do not agree. The
father's main contention on this appeal is that the trial court abused its discretion when it
awarded custody of the minor children to the mother.
However, such is not our prerogative.); see also Miller v. Miller, 371 So.2d 565, 566 (Fla. 4th
DCA 1979) (holding that appellate court may not substitute its judgment for that of trial judge).
See Reinhart v. Reinhart, 291 So.2d 103, 105 (Fla. 1st DCA 1974) (stating [i]t may well be that
were we permitted to hear the case de novo we might enter a different final judgment.
Appellate courts are never permitted to retry a court's determination in this regard de novo or
reweigh the evidence. See Canakaris, 382 So.2d at 1203; Dinkel v. Dinkel, 322 So.2d 22, 24
(Fla.1975); Bader v. Bader, 639 So.2d 122, 124 (Fla. 2d DCA 1994) (en banc); Jones v. Jones,
633 So.2d 1096, 1099 (Fla. 5th DCA 1994); Ross v. Ross, 321 So.2d 443, 444 (Fla. 3d DCA
1975). If there is substantial competent evidence to support the trial court's determination, it is
firmly established that a trial court cannot be deemed to have abused its discretion and its ruling
must be left undisturbed on appeal. See Canakaris v. Canakaris, 382 So.2d 1197, 1203
(Fla.1980); Grant v. Corbitt, 95 So.2d 25, 28 (Fla.1957); Sullivan v. Sullivan, 668 So.2d 329,
329-30 (Fla. 4th DCA 1996). The simple issue for our consideration is whether the trial court
abused its discretion when it determined that the best interests of the two minor children dictated
that their mother be designated their primary custodial parent. As we see it, the child custody
issue in this case, with all its attendant notoriety, centers only around our standard of review as
an appellate court.
The record evidence, however, simply does not support this suggestion. The father suggests
that it was gender bias. What then tilted the scales in favor of awarding custody to the mother?
Nobody disputes this fact, which alone made the trial court's determination all the more
difficult. At the outset, it is important to emphasize that both the mother and father are very
loving and capable parents.
I
She had custody of her two minor children (now grown) from her first marriage which she
successfully reared while simultaneously juggling the demands of her law practice. He had no
children from his first marriage. Their marriage was a second for both. She was an attorney
in private practice at her own firm. He was an architectural designer with his own home design
firm as well as an entrepreneur with a publishing company. At the time of their marriage in
1982, both the father and mother were successful professionals in New Mexico. 1
Both contributed to and shared in the household expenditures at all times. As typical working
parents, they would both arrive home between the hours of 5:30 and 6:00 each evening. After
the birth of their children, both parents continued to work outside of the home and pursued their
respective professional endeavors with the assistance of a live-in nanny, au pair, or
housekeeper. Hector and Young became the parents of two daughters born in 1985 and 1988.
To the contrary, the father actively pursued job leads in the Miami area prior to the couple's
relocation. Although there is a complete conflict in the record between the parties as to who
broached the subject of the couple's relocation to Miami and the circumstances under which
they would relocate in terms of their respective careers, it is significant that neither of these
parties ever testified that they ever agreed or expected the mother to pursue her legal career
while the father remained at home as the full-time caregiver to their minor children. Both
parties agreed to relocate to Miami. Sometime in late 1987, the father's business ventures
began to suffer certain financial reversals and the mother became bored with her practice in
New Mexico.
The father stayed behind in New Mexico until October 1989 in order to complete the
construction of a new house and to remodel the couple's New Mexico home in order to enhance
its resale potential. During that summer, she studied for and took the Florida Bar exam and
landed a position with a mid-sized law firm. In June 1989, the mother and her two minor
daughters arrived in Miami first.
It is significant to point out at this juncture, that it is undisputed that from the time the minor
children were brought to Miami in 1989 until the fall of 1993, the needs of the minor children
were attended to by a live-in housekeeper when they were not in school during the day and by
the mother upon her arrival from work in the evenings. Thereafter, he renovated the home
which ultimately became the couple's second marital residence. Thereafter, during the spring
and summer of 1990, the father spent his time repairing the couple's first marital residence in
Miami. After the father's move to Miami in the fall of 1989, he studied for and passed the
Florida contractor's examination.
Although the mother was earning a very decent income as an attorney at the time, it was
undisputed that this family was operating with a negative cash flow.After the father's
renovations to the couple's second Miami residence were completed and the family moved in,
the mother testified that she began to have serious discussions (which eventually escalated into
arguments) about the father's need to find gainful employment.
The father saw his family during this fourteen month period once every five weeks and
according to the mother, only at her insistence and pursuant to her arrangements for such family
reunions. The minor children were continuously being cared for by the housekeeper/babysitter
during the day and the mother after work. During this time, the father spent approximately
fourteen months away from his family pursuing buried gold in New Mexico on a treasure hunt.
He also visited his sick brother in Arkansas and later handled his brother's estate matters upon
his brother's demise. During this time, he returned to New Mexico to attend to lingering
matters involving his prior businesses there and to make preparations for an upcoming treasure
hunt. During the remainder of 1990 through 1993, the father left the state and was frequently
away from the mother and minor children for months at a time. Rather than pursue gainful
employment to financially assist the household and his minor children, the father turned his
attentions elsewhere.
When the children became ill or distressed during the middle of the night, the mother was
always the parent they looked to for assistance or solace. The mother engaged in activities
with the children on a full-time basis on the weekends. The mother's time with the children
during the weekdays consisted of her awakening, dressing, and having breakfast with them prior

to transporting them to school, and spending the early evening hours with them prior to their
bedtime. The children were in a public school full-time between the hours of 8:30 a.m. and
2:00-3:00 p.m. The mother had employed a housekeeper (Hattie) who came to the house each
weekday between the hours of noon and 8:00 p.m. to clean, pickup and babysit the children
after school. At that time, the couple no longer had a live-in nanny or babysitter for the
children. Even with the mother's salary increase, the family remained steep in debt. When
the father finally returned to South Florida, in the fall of 1993, the mother had accepted a
partnership position with a large Florida law firm at a salary of approximately $300,000 annually.
2

The father candidly conceded as much at trial. It must be re-emphasized that at no time did
the mother and father have any mutually expressed or tacit agreement for the father to remain
unemployed. Approximately one month after the father's return to the household in 1993, the
mother asked the father for a divorce because of his continued refusal to seek gainful
employment and due to his extramarital affair in New Mexico. 3 Consequently, this case simply
did not involve the typical scenario where two spouses, by mutual agreement, agreed for one to
remain at home to care for the children and the other spouse to work outside of the home.
Upon the mother's arrival at the home, the father generally absented himself. Although he
steadfastly refused to make any efforts to obtain employment, he did become more involved in
the activities of his two daughters, who by that time, were 8 and 5. Since both girls were in
school full-time at this time, the father's involvement with the girls' activities occurred primarily
Mondays through Fridays between the hours of 3:00 p.m. and 6:30 p.m., prior to the mother's
arrival from work. Once the mother announced to the father that she wanted a divorce, the
father began to spend less of his time away from Miami. 4
The trial court viewed this contention with some degree of skepticism as it was entitled.The
father nevertheless maintained that he was the primary caretaker or Mr. Mom of these two
children in the three years preceding this dissolution proceeding. 5 The father's concession is
what prompted the court to ultimately make inquiry as to why the father did not seek
employment or alternatively, why there was a need for a full-time nanny:The trial court's
skepticism or disbelief was not at all unreasonable, given the father's admission that the nanny,
Hattie, had taken care of these children in large part during the afternoon hours until their
mother's arrival at home.
****
[Father's attorney]: Who picks the kids up?
She picks them up frequently. She does. If I am tied up, whether it's a meeting or whatever,
or if I go somewhere like your office, way up in North Miami Beach, and I don't get back in time
and I thought I would, I can call Hattie and say, Hattie, please pick up the children. [Father]:
Either Hattie or I. Typically, it's me.
[The Court]: Is Hattie there five days a week?
She cleans up after that. I eat with the children every day typically at 6:30. We eat. The
kids eat. She prepares the dinners. She cleans the house in the afternoons. She comes at
noon every day. [Father]: Yes sir.
She'll draw a bath for Avery and she leaves at eight o'clock in the evening five days a week.
Why don't you get a job.[The Court]: Maybe I'm missing something.
Today, it's computer dominated and I'm computer illiterate. That's my degree, but when I
graduated, they did not have computers. [Father]: Well, because my background is
architecture.
I, in talking to Larry Foreman, who was court appointed as the career consultant, anticipated that
I should go to graduate school to acquire these skills that I'm lacking right now.
They like what I have to offer but their offices are basically all computerized. They like me.
I've gone on interviews.
Ms. Hector has a secretary that handles her whole life at the office and in a sense I was the
secretary that handled her whole life at home and took care of the children.Previously, because
of the number of hours Ms. Hector worked, I filled in.
[The Court]: But you've got a nanny doing that.
They can drop off. Nannies can pick up. [Father]: No sir, I don't believe you can buy parents.
[The Court]: Why [sic] do you need the nanny for, if you're there doing it?
Typically, people that have incomes of over a quarter of a million dollars or $300,000 can afford
the luxury of having help, hired help. I could do a lot of that. She cleans. [Father]: She
cooks.
I try to do meaningful, worthwhile things.I am not the kind of person that sits around and
watches soap operas.
[The Court]: Go ahead, counsel.
****
Given the undisputed large financial indebtedness of this couple, the trial court's inquiry about
the need to employ a full-time nanny was both logical and practical under these circumstances
and certainly could have also been appropriately posed to the mother if she had been
recalcitrant about seeking gainful employment to assist the family's financial situation.Contrary
to the father's suggestion on appeal, this inquiry by the court is not evidence of gender bias. 6
II
A Given a choice between the mother, who maintained constant steady employment
throughout the marriage to support the children (regardless of the amount of her income), and
the father who unilaterally and steadfastly refused to do the same, the trial court's designation of
the mother as custodial parent cannot be deemed an abuse of discretion. Given the father's
skills and experience, the trial court was certainly entitled to reasonably conclude that the father
was employable upon his return to Miami in 1993-one year after Hurricane Andrew literally
destroyed thousands of residences and commercial establishments in South Dade County and
building contractors were in heavy demand. The trial court was obviously not oblivious to the
fact that the father was also a Florida licensed contractor who had built homes in New Mexico
and renovated both of the parties' Florida marital residences. The trial court concluded that the
father was where he is largely because of his own choice. We believe, that what the
guardian was attempting to convey was that the mother had shown a proclivity to remain
steadily employed, unlike the father who unilaterally removed himself from the job market,

although he was employable and the family needed the additional income. We do not believe
that the guardian gave the mother the edge simply because she earned a large salary. First of
all, the guardian noted that the mother had been the more economically stable of the two
parents throughout the marriage. In recommending that the mother be named the primary
custodial parent, the guardian ad litem cited three factors, all of which we find are supported by
competent substantial evidence in the record. part from this evidence, the court also had the
report and recommendations of the guardian ad litem upon which to rely. 7 61.13(3)(c), Fla. Stat.
(1995).See
The guardian ad litem observed:The second factor relied upon by the guardian ad litem in
recommending that the mother be declared the primary custodial parent was the fact that the
mother had been a constant factor and dominant influence in the children's lives and the father
had not.
There have been times in the children's life [sic] when Bob has been, for whatever reasons,
away from the home for substantial periods of time and Alice has been the dominant influence.
More recently, while she has been working, he has been available at home more hours of the
day than she has been, but over a continuum of time, I believe that her presence has been a
more steady presence in the sense of available almost the same time for the kids throughout the
relationship, whereas Bob has been intensely absent and intensely present.
Thus, there was no basis for the panel to overturn the trial court's finding in this regard.
61.13(3)(d), Fla. Stat. The record evidence clearly supports the trial court's conclusion that the
mother had been the constant parent throughout the children's lives. See That is, the trial
court, in an effort to maintain continuity, could have legitimately determined that the children's
best interests dictate that they remain with the parent who had continuously been there to care
for their needs throughout their young lives rather than the parent who had devoted a substantial
amount of time with them perhaps only when it was convenient and/or opportunistic to do so.
In its determination as to the best interests of the minor children, the trial court obviously
deemed it more important to assess the children's time spent with each of the parents
throughout the course of the marriage and not merely focus on the years immediately preceding
the announcement of the dissolution action.
For that reason, the guardian, who is also a retired circuit court judge, went so far as to
recommend that the father receive anger control counseling. The guardian ad litem testified
that he personally witnessed one of the father's outbursts of anger in the presence of the
children. The last factor cited by the guardian ad litem, which tilted the scale in favor of the
mother, was the mother's superior ability to control her anger around the children.
Nor can we conclude that the court's determination was impermissibly influenced by gender
bias against the father.Given this substantial competent evidence in the record, we cannot
conclude that the trial court abused its discretion when it awarded custody of the minor children
to their mother.
We recognize that at times, it can be a very difficult and agonizing call for the trial judge to
make when both parents are as loving and caring as the mother and father areCustody
determinations are perhaps the most sensitive and delicate decisions that family court judges
make. However, on remand, the trial court should grant the father liberal and frequent
access to the children. For this reason, we affirm the order awarding primary residential
custody of the minor children to the mother. As long as the trial court's decision is supported
by substantial competent evidence and is not based upon legally impermissible factors such as
gender bias, it must be affirmed on appeal. Moreover, trial judges sitting as triers of fact in
these proceedings are not required to shed their common sense and life's experiences when
they don their black robes to preside over these proceedings. Thus, the trial court, unlike an
appellate court, is entitled to rely, not only upon the record evidence presented, but upon its
mental impressions formed about each of the parents and their respective parenting strengths
and weaknesses. Indeed, the trial court has the unique advantage of meeting both parents
prior to making its decision. Nevertheless, once the trial court makes this decision and the
decision is supported by substantial competent evidence, we recognize that the trial court's
determination should not be lightly second-guessed and overturned by an appellate court merely
reviewing the cold-naked record. in this case.
III
Thus, we reverse these awards and remand for further proceedings, including evidentiary
hearings, if necessary. On remand, the trial court should revisit these issues. Moreover, the
distribution of the parties' assets and liabilities was inequitable and the award of attorney's fees
to the father's lawyer was insufficient. Canakaris, 382 So.2d at 1201-05. Finally, we agree
that the award of alimony to the father was inadequate in light of his rehabilitative plan
presented to the court and the lifestyle established during the parties' marriage.
Affirmed in part and reversed and remanded in part.
I write separately only to express my strongly held view that, despite all that has been said
about the peripheral implications of this case, the reality is that the pivotal issue involved in this
case can, and must, be resolved by going through the simple exercise of examining the trial
court's decision according to the appropriate standard of review that this Court must follow.I
endorse and agree with the majority opinion.
Furthermore, the record does not reflect any abuse of discretion by the trial court in reaching
that decision.Simply put, there is more than substantial competent evidence to support the trial
court's decision to name the mother as the primary residential parent of the children in this case.
While there is probably also an appropriate quantum of evidence that would have supported
naming the father as the primary residential parent, the trial court, after hearing and weighing all
of the evidence, determined that it was in the best interest of the children to name the mother as
the primary residential parent.
Rather, as stated above, this Court's function is limited solely to reviewing the decision of the
trial court in light of the appropriate standard of review.Clearly, this Court cannot second-guess
the decision of the trial court as, I respectfully suggest, the original panel opinion did.
The following is a summary of various portions of the record that support the trial court's
decision: Such evidence includes the testimony of the Guardian Ad Litem, the mother of the
children, several neighbors of the parties, as well as the father himself. The record in this case
is replete with substantial competent evidence that supports the decision of the trial court.

While I do not believe that these negative factors should, standing alone, prevent the father
from being named the primary residential parent, when viewed in the context of the entire
Notwithstanding that belief, I note that the record contains negative testimony about the father's
qualifications to be the primary residential parent. As I indicated above, I believe the record
would also have supported the trial court if the father had been named as the primary residential
parent. trial, as the trial judge would have viewed them, these negative factors, when
considered in connection with all of the preceding testimony about the mother, clearly can be
viewed as part of the basis for the trial judge's conclusion that it would be in the best interests of
the children for the mother to be named as the primary residential parent.
Solely for demonstrating what I believe to be the correctness of the comments that I have
expressed in the preceding paragraph, the following is a brief summary of portions of the record
that reflect negatively on the father's ability to be named the primary residential parent:
For all of the foregoing reasons, as well as the very cogent discussion of the facts and law
contained in the majority opinion, I strongly agree that the original panel opinion rendered by this
Court on this case must be reversed and the decision of the trial court, to name the mother as
the primary residential parent, must be affirmed.
I agree with the majority and write separately only to address those portions of the dissents
which rely on the original panel's opinion.
Later in his testimony, during a lengthy narrative, he said: He estimated the cost of this
additional education at approximately $30,000. He observed that the first two options would
require post-graduate education directed towards achieving a master's degree. As concerned
future employment, he testified that he had three possible choices: 1) architecture, 2)
construction, or 3) working in an entrepreneurial manner for himself. He also recognized that
he was confronted with the considerable task of re-integrating himself into the labor force.
During trial, Mr. Young testified that he wanted to be the primary residential parent for the
children. On rehearing, Mr. Young has embraced this reasoning, but the record reflects that
this was not his position below. Such a continuation would clearly be in the best interest of the
children. The original panel opinion states that a trial court's decision as to which parent
should be awarded primary residential custody of the children should attempt to preserve and
continue the care taking roles that the parties had established.
Not loses and everybody is unhappy and that's a winning situation.Judge, you have a difficult
assignment of figuring out, you know, how to have-so everybody wins when the best situation is
sort of basically everybody loses in the sense that nobody gets what they want.
I want to be with them at three o'clock when they get out until they go to bed. I want to get a
job that allows me to be with them. Maybe the children should stay with Alice until I get it done
and the day I have the job they can come live with me. I need help to do it and I want help to
do it and I want to get it done. [Another father] has been able to arrange his schedule around
his children and I just hope I can.
During closing argument, Mr. Young's lawyer followed up on the same theme:(Emphasis
added).
He does need to get a job. I don't think that it's an unreasonable suggestion. I would adopt
that suggestion. [Robert] suggested an alternative.
***
I'm not a fan of temporary orders but certainly in this case it might be one that begs out for a
temporary order to allow him an opportunity, without the children, without the responsibility for
the children, to get on his feet.Financially, right now, I'm not certain I can come up with a plan
but I am certain that there is a way to accommodate it.
He might find someone who is willing to accommodate him. He might get lucky. He needs to
do that and I'll be the first to admit it and he's not going to do it while the divorce is pending and
he's certainly not going to do it with two little children that he has to care for starting at three
o'clock every day but, if he's willing and motivated, I think he can find a position that would allow
him to have more time with the children at least than a 9:00 to 5:00 position and maybe even
more than that.
See Gupton v. Village Key A party cannot invite error at the trial level then be heard to
complain about it on appeal. Indeed, the quoted portion of counsel's summation above is
found on page 531 of the trial transcript, and on page 532 the trial judge designates Ms. Hector
as the primary residential parent. Moreover, in such a close case, this willingness to give Ms.
Hector primary custody may well have tipped the scales in her favor. It is clear that neither Mr.
Young nor his lawyer were overly concerned with the continuity problem, as they were both
willing to surrender primary custody during the proposed two year educational rehabilitation
period. Mr. Young's testimony, and his lawyer's summation, categorically establish that the
continuity argument adopted by the dissent was not raised in the trial court. (Emphasis
added). & Saw Shop, Inc., 656 So.2d 475, 478 (Fla.1995)(defining the invited error rule as
follows: a party cannot successfully complain about an error for which he or she is responsible
or of rulings that he or she has invited the trial court to make.); Held v. Held, 617 So.2d 358
(Fla. 4th DCA 1993); Poller v. First Virginia Mortg. and Real Estate Inv. Trust, 471 So.2d 104
(Fla. 3d DCA 1985).
It is therefore clear that the final judgment does not impede the continuity of the children's
lives, nor does it significantly alter the care taking roles of their parents. If these objectives
interfere with what the children have come to know, they will be equally obstructive if Mr. Young
were designated the primary residential parent. In short, as far as the children are concerned,
under Option 1 of the final judgment, nothing in their lives will change unless Mr. Young
becomes unavailable due to his educational, or, ultimately, career objectives. This also will
remain the same. When Ms. Hector came home in the evening he would either retire to his
room or leave the house, and the children would spend time with their mother, who would talk
with and read to them. Nothing in the final judgment will change this. He further testified that
he would have dinner with the children on an almost daily basis. Under the final judgment he
would still be able to do that. He indicated that either he or the housekeeper would pick up the
children at school and he would then share a variety of after-school activities with them.
Nothing in the final judgment would change his during-school activities. He testified that
while the children were in school he would return home and either work on his upcoming
divorce, manage his stock market accounts or perform household errands. Under the final

judgment, this process would remain unchanged. He and Ms. Hector would share the
responsibility of taking the children to school. Mr. Young testified that Ms. Hector was the
parent who awakened the children, dressed them and gave them breakfast. Even if the
continuity argument had been made and properly preserved, a close analysis of the evidence
establishes that the trial judge's decision does not frustrate that goal.
As the panel opinion, which has not in my view been successfully challenged by any of the
contrary briefs or opinions,I remain convinced by the panel decision and by the dissents of
Judge Nesbitt and Judge Goderich that the trial court's award of the children's primary physical
residence to the mother is unsupported by any cognizable, equitable consideration presented by
the record. 1 2.03(6). See Principles of the Law of Family Dissolution: Analysis and
Recommendations (Am. Law Inst.1998)(Tentative Draft No. 3, Part I) demonstrates, the
children's parents, who know and care most about their welfare, had themselves established an
arrangement prior to the dissolution as a part of which, upon any fair assessment, the father was
the primary caretaker. 2 2.09(1). See Principles of the Law of Family Dissolution: Analysis and
Recommendations (Am. Law Inst.1998) (Tentative Draft No. 3, Part I) There is simply no
reason for a court to tamper with what has worked so well. As everyone agrees, under that
regime, if not because of it, their girls have turned out to be well-behaved, well-adjusted, and
accomplished young women who love both their parents: just what we all devoutly wish for and
from our children. 3 61.13(3)(d), Fla. Stat. (1995). In many areas, the law properly recognizes
the undesirability of disrupting the children's circumstances any more than is already necessarily
required by their parents' separation and divorce. This is not only because it is almost always
better to preserve a known good rather than to risk what the unknown future may bring, see
Rumph v. V.D., 667 So.2d 998, 998 (Fla. 3d DCA 1996)(Schwartz, C.J., specially concurring),
but, much more important, because the children are themselves entitled to stability in their lives
and routine which would be compromised by any purposeless change in their caregiver. 4 See
Mize v. Mize, 621 So.2d 417 (Fla.1993)5 When, as here, the children have manifestly
benefitted from an arrangement established before the judgment, the same rule should apply.
Belford v. Belford, 159 Fla. 547, 32 So.2d 312 (1947); Ritsi v. Ritsi, 160 So.2d 159 (Fla. 3d
DCA), cert. denied, 166 So.2d 591 (Fla.1964). This principle finds special application in the
rule that modifications of the custody provisions of a final judgment may be made only when
there has been a change of circumstances adversely affecting the welfare of the children.
(relocation of custodial parent); Pino v. Pino, 418 So.2d 311 (Fla. 3d DCA 1982)(importance of
children's remaining in home).
What happens when that rule is not applied is illustrated by the result in this very case, in which
it was necessary below and has been found necessary on appeal to resort to other,
inadmissible, factors to justify the so-called exercise of discretion by the trial court and the
affirmance of that result by this one.6
A. The male attorney's claim for custody would have been virtually laughed out of court, and
there is no realistic possibility that the mother architect would have actually lost her children.
I believe that this is shown by contemplating a situation in which the genders of the hard working
and high earning lawyer and the stay at home architect were reversed, but everything else
remained the same. This case, however, permits no other conclusion. It is usually extremely
difficult to gauge the underlying motivations of any human being and one resists even more the
assignment of an unworthy or impermissible reason to any judge's exercise of her judicial
functions. In my opinion, there is no question whatever that the result below was dictated by
the gender of the competing parties. 7 (The fact, so heavily emphasized by members of the
majority, that the hypothetical mother architect might have sought employment after the
dissolution, as usually occurs, and that her time with the children would have therefore
diminished, would have made no difference either.)8 It is, at best, naive in the extreme to
suggest, let alone find, that the result below was not dictated by the evil of gender bias.
B. See Rumph, 667 So.2d at 998. As I might do myself, one may agree with this assessment of
the parties while profoundly disagreeing, as I certainly do, with the idea that any such
consideration is a proper basis for decision-making in this field. In the end, after a meticulous
inquiry into the father's long past and non-parental conduct which few mortals could withstand, it
bases its determination that the discretion of the trial court was properly exercised upon the
belief that the record shows (or that the trial court might have properly believed) that Mr. Young
is less sincere, less well motivated, less admirable and generally a worse person and a worse
parent than Ms. Hector. By rejecting the obvious but unacceptable in its search for a basis for
the result below, the majority has, in my opinion, relied upon something even worse.
Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) But judicial discretion may properly be
exercised only on the basis of factors which are legally pertinent to the issue involved. It is of
course true, as the majority repeatedly emphasizes, that a custody decision is one within the
discretion of the trial court. 9 Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). We had, I thought,
come a long way from the time when a parent could be denied her parental rights-or, more
properly stated, when the children could be deprived of their rights to having only their interests
considered-merely because a judge may disapprove of her standards of conduct, much less of
her character. Its resolution, in turn, cannot be based on a subjective assessment of the worth
of the contending parties so long as, as was conclusively demonstrated in this case, the conduct
and character traits referred to have not impacted upon the children. ; see Farrior v. Farrior,
736 So.2d 1177 (Fla.1999)[24 FLW S297]. In this area, that issue is the children's best interests.
10
Apparently, I was mistaken.11 In a society of law and not persons, unknowable and
unjudgable questions of character, personal worth, and even actual misconduct, if irrelevant to
the issue under consideration, Although only with the best of intentions, and fortunately in a
case in which children will thrive in the care of either parent (or both of them), the majority has
perhaps unwittingly provided that custody decisions are subject to the personal views of a
particular judge, who sits as a Dostoevskian Grand Inquisitor, the effectuation of whose own
notions of right and wrong are subject to objective review by no one on this earth. See
Anderson v. Anderson, 736 So.2d 49, 53 n. 1 (Fla. 5th DCA 1999)[24 FLW D1273, D1275 n. 1]
(challenging Dinkel). 12 Results on indistinguishable operative facts should not vary from
courtroom to courtroom according to the moral preferences of the trial judge (or appellate panel)
assigned by the luck of the draw to hear the case. See S.B. v. D.H., 736 So.2d 766, 767 (Fla.
2d DCA 1999)[24 FLW D1563, 1564] (There is no Solomon within our judiciary who can

accurately predict who would be the better father for this child.). should not govern decision
making in this area or any other. 13 Farrior v. Farrior, 736 So.2d at 1179 [24 FLW at S298]
(Pariente, J., concurring).14 Because the majority's decision is to the contrary of these
propositions, I believe that it is very wrong.
I respectfully dissent.
The heightened interest in the case prompts me to discuss the determinative factors which
originally caused me to vote for reversal and against rehearing en banc.I entirely agree with
the original decision and opinion of this court, filed June 24, 1998 at 23 Fla. L. Weekly D1529,
740 So.2d 1154.
Section 61.13(2)(b)1, Florida Statutes (1995), in part provides the father of the child shall be
given the same consideration as the mother in determining the primary residence of a child
irrespective of the age or sex of the child. This salient factor was wholly ignored by the trial
court. See Farrell v. Farrell, 555 So.2d 1260, 1261 (Fla. 3d DCA 1989); Berhow v. Crow, 423
So.2d 371, 373 (Fla. 1st DCA 1982); In re Marriage of Feig, 296 Ill.App.3d 405, 230 Ill.Dec. 685,
694 N.E.2d 654, 657 (1998); In re Marriage of Jackson, 682 N.E.2d 549 (Ind.Ct.App.1997);
Wright v. Stovall, No. 01A01-9701-CV-00040, 1997 WL 607508, at *5 (Tenn.Ct.App. Oct.3,
1997). Acquiescence to the child custody arrangement can and has been found to be an
important factor of various aspects of child custody problems. The arrangement began in the
fall of 1993 and continued until the 1996 dissolution proceeding which led to the husband's
summary eviction from the marital home. As the wife's law practice grew and prospered (she
was working 11 and 12 hour days and was frequently gone overnight), she relied more and
more upon the husband, who accepted the responsibility for the care and needs of the girls.
The record demonstrates that both the mother and the father of the children are completely and
entirely fit and worthy (as the trial court found) to serve as primary residential parent.
Ayyash v. Ayyash, 700 So.2d 752, 754 n. 3 (Fla. 5th DCA 1997). The Fifth District has noted
that [e]ven though [the tender years] doctrine was overturned by the legislature's gender neutral
policy, there remains a temptation for many judges to consider the right to custody as the
mother's to lose and unless her fitness is legitimately challenged, the father's right of equal
consideration is often ignored. Id. at 753. In Cherradi v. Lavoie, 662 So.2d 751 (Fla. 4th DCA
1995), the Fourth District observed that the tender years doctrine was impermissible as it used
gender as a basis for awarding custody.
It is extremely unlikely that any circuit judge in Florida would have asked the same question of
the mother of young children whose husband was then earning a substantial annual income.
For example, at one point in the proceeding he asked the husband, Maybe there's something I
don't understand-why don't you get a job? In this proceeding the trial judge totally ignored the
gender neutral policy.
But there is little or no correlation between being the money maker or between being wealthy or
not; in order to make one an effective parent.Sub silentio, this court like the trial court
continues to pillory the father because he is not the substantial bread winner in the family.
It occurs to me that both the children and the societal interest are better served by placement
with a natural parent who is available. Such holding necessarily implies that children therefore
will be substantially or in part reared by a surrogate parent. By today's decision, the court
remains aligned with the traditional view that a mother will not lose her entitlement to become
the primary residential parent unless her unfitness is demonstrated; no matter how actively she
is engaged outside of and away from the home, even though the other parent is fit and willing to
serve in that capacity.
Where parents themselves have established an arrangement (which they do not either dispute,
contradict or refute) which supports the children's best interests-there is no reason for the courts
to interfere.Given the parties' own conduct toward the care and rearing of these children it
leaves no doubt that their best interests would be that they remain with their primary care giver;
here their natural father.
I therefore dissent with the child custody dispute but agree with reversal of the financial issues,
because that portion of the judgment is skewed as the rest.
GODERICH, J. (dissenting):
It is apparent that the trial court also abused its discretion by awarding primary residential
custody of the minor children to the parent who has been working long hours as a senior
litigation partner in one of Miami's top law firms as opposed to the parent who has not worked
outside of the home for the three years preceding the filing of the dissolution action. It is
incomprehensible how the majority of the en banc panel can agree that the trial court abused its
discretion in virtually every final ruling it made, except as to its ruling on the award of primary
residential custody. Young v. Hector, 23 Fla. L. Weekly D1529, 740 So.2d 1158 (Fla. 3d DCA
1998). I respectfully dissent for the reasons expressed in the panel opinion.
As a result of this caretaking arrangement, the mother was free to dedicate herself to her legal
career by working extremely long hours Moreover, there is no doubt that the mother benefited
from this arrangement (and possibly that is why she allowed it to continue). For example,
although the parties had separated, the mother permitted the husband to live in the marital
home and to continue his role as a stay-at-home parent. Although it may be true that the
mother did not expressly agree, the record demonstrates that the mother nonetheless
acquiesced to this arrangement by allowing it to continue for three years. The majority opinion
focuses on the fact that the parties did not mutually agree that the father would stay at home to
care for the children. 1 Also, the record indicates that the children also benefited from their
father's role as the primary caretaker since he was actively involved in their school and afterschool activities.without having to worry about whether the minor children's emotional needs
were being met.
The majority opinion claims that Shortly thereafter, the trial court also stated: Why [sic] do
you need the nanny for, if you're there doing it? Why don't you get a job. At one point, the
trial court, while questioning the father as to the nanny's role, stated to the father: Maybe I'm
missing something. Further, I believe that gender played a role in the trial court's decision, and
continues to play a role in this Court's decision.
Given the undisputed large financial indebtedness of this couple, the trial court's inquiry about
the need to employ a full-time nanny was both logical and practical under these circumstances
and certainly could have also been appropriately posed to the mother if she had been

recalcitrant about seeking gainful employment to assist the family's financial situation.this
inquiry by the court is not evidence of gender bias.
(Maj. op. at 1159). Moreover, the record indicates that it was the mother, not the father, who
employed the nanny. Further, I find it extremely hard to believe that if the roles were reversed
any trial judge would question a mother's lack of employment or the employment of a nanny
when the father earns over $300,000 per year. (Maj. op. at 1162). During the trial court's
exchange with the husband, there is nothing that would indicate that the trial court was
concerned with the parties' financial condition. I do not agree with the majority's observation
that these statements had nothing to do with gender bias, but rather was a result of the parties'
financial condition. (Maj. op. at 1162).
There are certain things that money cannot buy and that a nanny cannot provide, such as the
attention of caring parents. The record clearly establishes that the minor children's basic
necessities were more than taken care of. Further, this was not a family in which the working
parent was earning $30,000 and any additional sums earned by the other parent would have
been helpful to provide the children with basic necessities such as food, clothing, and shelter.
The record clearly demonstrates that with the husband's present skills, he did not have the
ability to earn a substantial amount of money. The majority opinion also suggests that the
father should have obtained gainful employment in order to financially assist the household and
minor children in light of the parties' financial condition.
Instead, the majority would have probably suggested that the father restructure his debt, sell
assets, and/or cut down on expenses so that the mother could continue the caretaking role that
was established during the marriage.Once again, I do not believe that if the roles were
reversed (a father who earns over $300,000 per year and a non-working mother), the majority
would have suggested that the children would have been better off if the mother would have
attained employment when her earning potential is limited and the father already makes over
$300,000 per year.
Further, in light of the child support guidelines, a parent's financial resources should never be
considered as a determinative factor in deciding which parent should be awarded primary
residential custody of the minor children. Once again, if the roles were reversed, I believe that
the guardian ad litem would not have considered economical stability as a determinative factor.
First, the guardian focused on the fact that the mother has been more economically stable
throughout the marriage. The majority opinion also addresses the three determinative factors
that the guardian ad litem looked at in recommending that the mother be named the primary
residential parent.
Further, the fact that the father had been away from the family should not be a determinative
factor when taking into consideration that the father has been the primary caretaker since the
fall of 1993. Therefore, the reasons for the father's absence from the home were valid.
However, what the majority has failed to state is that it may not have been so strange since the
mother's parents and trial counsel also invested in this project. The majority relies on the
treasure hunt to make it appear as if the treasure hunt was a crazy or weird notion. Finally,
the father was in New Mexico from June 1992 to September 1993 in order to direct a treasure
hunt project. Second, the husband, was away for three to four weeks to be with his ill brother,
who died shortly after he arrived, and to help settle his brother's estate. First, when the parties
decided to move to Miami, the father stayed in New Mexico for approximately three months in
order to move the family's possessions to Miami and to make improvements to the marital home
so that the parties could sell the home at its highest possible price. I feel that it is important to
explain why the father had been away from the home. The guardian ad litem focused on the
fact that the father had been away from the home for substantial periods of time The second
determinative factor was that the mother has been the more constant factor throughout the
entire relationship.
However, the father's anger was based on the financial inequities of the situation, a problem
that should be completely resolved based on the majority's decision to reverse and remand all
financial determinations made by the trial court, including the insufficient award of alimony to the
father and the inequitable distribution of the marital assets and liabilities. I agree with the
guardian ad litem that being able to control anger is an important factor in deciding child custody
issues. The guardian ad litem testified that the father would say things in the presence of the
children that indicated to me his anger and his displeasure at what he perceives to be the
financial inequities of the situation Finally, the third determinative factor was that the mother
controls her anger better around the kids.
Finally, I would like to note that the scenario Because the present situation is not the norm, this
may be why it is difficult to see that the trial court abused its discretion by not awarding primary
residential custody of the minor children to the father, the parent who has not worked outside of
the home for the past three years in order to care for the minor children. In situations where
families are fortunate enough to have one parent stay at home to care for the children, it is
usually the mother. contained in the present case is unique.
For all these reasons, I dissent as to the majority's decision as to the child custody issue, but
agree with the majority, as I originally did in the panel opinion, that the financial issues must be
reversed and remanded for further proceedings.
Facts:

At the time of their marriage in 1982, both the father and mother were successful
professionals in New Mexico.
o
Father was an architectural designer / entrepreneur and mother was an
attorney.

They became the parents of two daughters born in 1985 and 1988.

After the birth of their children, both parents continued to work outside of the home
and pursued their respective professional endeavors with the assistance of a live-in nanny.

They later agreed to move to Miami after the fathers business began to suffer and
the mother became bored with her practice.

Once in Miami, the mother began to have serious discussions (which eventually
escalated into arguments) about the fathers need to find gainful employment.

o
Instead, he never got a job, and from 1990-1993, was frequently out of
the state and away from the family (brother was ill, took care of some things in NM, went on a
treasure hunt).
o
They had a live-in nanny during this time as well.

When the father finally returned to South Florida, in the fall of 1993, the mother had
accepted a partnership position with a large Florida law firm at a salary of approximately
$300,000 annually.

That year she asked the father for a divorce. After this, the father spent less of his
time away from the family, but remained unemployed.

Father claimed he was Mr. Mom.

History: The trial court awarded custody of both kids to the mother.

The court stated, Maybe Im missing something. Why dont you get a job?
o
Father replied that architecture nowadays is all computerized and he
was computer illiterate.

It was also skeptical that he was Mr. Mom when they had a nanny.

The father argued that the court engaged in impermissible gender bias.
Issue: Whether the trial court abused its discretion when it determined that the best interests of
the two minor children dictated that their mother be designated their primary custodial parent.
Holding: No. Affirmed.
Reasoning:

In recommending that the mother be named the primary custodial parent, the
guardian ad litem cited three factors:
o
The guardian noted that the mother had been the more economically
stable of the two parents throughout the marriage;
o
The mother had been a constant factor and dominant influence in the
childrens lives and the father had not; and
o
The mothers superior ability to control her anger around the children.

The court felt that the trial court decision was supported by substantial competent
evidence and held that there was no abuse of discretion.
Dissent:

Clearly gender bias if facts were reversed and father was the attorney and mother
was the stay at home architect, father wouldve been laughed out of court if he
sought custody.

Additionally, no one would question why a woman wasnt working if her husband
was making $300,000.

Mother also acquiesced in father staying at home.

X. E. Exercise of profession Art. 73 FC compared with Art. 117 NCC, RA 7192 (Women in
Development and Nation-Bldg. Act), Sec 12-16, 22-24, RA 9710 (Magna Carta of Women)
Case
Bradwell v Illinois
BRADWELL v. THE STATE.
83 U.S. 130 (16 Wall. 130, 21 L.Ed. 442)Decided: NotFound

opinion, MILLER
IN error to the Supreme Court of the State of Illinois.
Mrs. Myra Bradwell, residing in the State of Illinois, made application to the judges of the
Supreme Court of that State for a license to practice law. She accompanied her petition with the
usual certificate from an inferior court of her good character, and that on due examination she
had been found to possess the requisite qualifications. Pending this application she also filed an
affidavit, to the effect 'that she was born in the State of Vermont; that she was (had been) a
citizen of that State; that she is now a citizen of the United States, and has been for many years
past a resident of the city of Chicago, in the State ofIllinois.' And with this affidavit she also filed
a paper asserting that, under the foregoing facts, she was entitled to the license prayed for by
virtue of the second section of the fourth article of the Constitution of the United States, and of
the fourteenth article of amendment of that instrument.
The statute of Illinois on the subject of admissions to the bar, enacts that no person shall be
permitted to practice as an attorney or counsellor-at-law, or to commence, conduct, or defend
any action, suit, or complaint, in which he is not a party concerned, in any court of record within
the State, either by using or subscribing his own name or the name of any other person, without
having previously obtained a license for that purpose from some two of the justices of the
Supreme Court, which license shall constitute the person receiving the same an attorney and
counsellor-at-law, and shall authorize him to appear in all the courts of record within the State,
and there to practice as an attorney and counsellor-at-law, according to the laws and customs
thereof.
On Mrs. Bradwell's application first coming before the court, the license was refused, and it was
stated as a sufficient reason that under the decisions of the Supreme Court of Illinois, the
applicant'as a married woman would be bound neither by her express contracts nor by those
implied contracts which it is the policy of the law to create between attorney and client.' After the
announcement of this decision, Mrs. Bradwell, admitting that she was a married woman
though she expressed her belief that such fact did not appear in the recordfiled a printed
argument in which her right to admission, notwithstanding that fact, was earnestly and ably
maintained. The court thereupon gave an opinion in writing. Extracts are here given:
'Our statute provides that no person shall be permitted to practice as an attorney or counsellor
at law without having previously obtained a license for that purpose from two of the justices of
the Supreme Court. By the second section of the act, it is provided that no person shall be
entitled to receive a license until he shall have obtained a certificate from the court of some
county of his good moral character, and this is the only express limitation upon the exercise of
the power thus intrusted to this court. In all other respects it is left to our discretion to establish
the rules by which admission to this office shall be determined. But this discretion is not an
arbitrary one, and must be held subject to at least two limitations. One is, that the court should

establish such terms of admission as will promote the proper administration of justice; the
second, that it should not admit any persons or class of persons who are not intended by the
legislature to be admitted, even though their exclusion is not expressly required by the statute.
'The substance of the last limitation is simply that this important trust reposed in us should be
exercised in conformity with the designs of the power creating it.
'Whether, in the existing social relations between men and women, it would promote the proper
administration of justice, and the general well-being of society, to permit women to engage in the
trial of cases at the bar, is a question opening a wide field of discussion, upon which it is not
necessary for us to enter. It is sufficient to say that, in our opinion, the other implied limitation
upon our power, to which we have above referred, must operate to prevent our admitting women
to the office of attorney at law. If we were to admit them, we should be exercising the authority
conferred upon us in a manner which, we are fully satisfied, was never contemplated by the
legislature.
'It is to be remembered that at the time this statute was enacted we had, by express provision,
adopted the common law of England, and, with three exceptions, the statutes of that country
passed prior to the fourth year of James the First, so far as they were applicable to our
condition.
'It is to be also remembered that female attorneys at law were unknown in England, and a
proposition that a woman should enter the courts of Westminster Hall in that capacity, or as a
barrister, would have created hardly less astonishment than one that she should ascend the
bench of bishops, or be elected to a seat in the House of Commons.
'It is to be further remembered, that when our act was passed, that school of reform which
claims for women participation in the making and administering of the laws had not then arisen,
or, if here and there a writer had advanced such theories, they were regarded rather as abstract
speculations than as an actual basis for action.
'That God designed the sexes to occupy different spheres of action, and that it belonged to men
to make, apply, and execute the laws, was regarded as an almost axiomatic truth.
'In view of these facts, we are certainly warranted in saying that when the legislature gave to this
court the power of granting licenses to practice law, it was with not the slightest expectation that
this privilege would be extended to women.'
The court having thus denied the application, Mrs. Brad-well brought the case here as within the
twenty-fifth section of the Judiciary Act, or the recent act of February 5th, 1867, amendatory
thereto; the exact language of which may be seen in the Appendix.
Mr. Matthew Hale Carpenter, for the plaintiff in error:
The question does not involve the right of a female to vote. It presents a narrow matter:
Can a female citizen, duly qualified in respect of age, character, and learning, claim, under the
fourteenth amendment,1 the privilege of earning a livelihood by practicing at the bar of a judicial
court?
The original Constitution said:
'The citizens of each State shall be entitled to all privileges and immunities of citizens in the
several States.'
Under this provision each State could determine for itself what the privileges and immunities of
its citizens should be. A citizen emigrating from one State to another carried with him, not the
privileges and immunities he enjoyed in his native State, but was entitled, in the State of his
adoption, to such privileges and immunities as were enjoyed by the class of citizens to which he
belonged by the laws of such adopted State.
But the fourteenth amendment executes itself in every State of the Union. Whatever are the
privileges and immunities of a citizen in the State of New York, such citizen, emigrating, carries
them with him into any other State of the Union. It utters the will of the United States in every
State, and silences every State constitution, usage, or law which conflicts with it. If to be
admitted to the bar, on attaining the age and learning required by law, be one of the privileges of
a white citizen in the State of New York, it is equally the privilege of a colored citizen in that
State; and if in that State, then in any State. If no State may 'make or enforce any law' to abridge
the privileges of a citizen, it must follow that the privileges of all citizens are the same.
Does admission to the bar belong to that class of privileges which a State may not abridge, or
that class of political rights as to which a State may discriminate between its citizens?
It is evident that there are certain 'privileges and immunities' which belong to a citizen of the
United States as such; otherwise it would be nonsense for the fourteenth amendment to prohibit
a State from abridging them. I concede that the right to vote is not one of those privileges. And
the question recurs whether admission to the bar, the proper qualification being possessed, is
one of the privileges which a State may not deny.
In Cummings v. Missouri, 2 this court say:
'The theory upon which our political institutions rest is, that all men have certain inalienable
rightsthat among these are life, liberty, and the pursuit of happiness; and that in the pursuit of
happiness all avocations, all honors, all positions, are alike open to every one, and that in the
protection of these rights all are equal before the law. Any deprivation or suspension of any of
these rights for past conduct is punishment, and can be in no otherwise defined.'
In Ex parte Garland, 3 this court say:
'The profession of an attorney and counsellor is not like an office created by an act of Congress,
which depends for its continuance, its powers, and its emoluments upon the will of its creator,
and the possession of which may be burdened with any conditions not prohibited by the
Constitution. Attorneys and counsellors are not officers of the United States; they are not elected
or appointed in the manner prescribed by the Constitution for the election and appointment of
such officers. They are officers of the court, admitted as such by its order, upon evidence of their
possessing sufficient legal learning and fair private character. . . . The order of admission is the
judgment of the court, that the parties possess the requisite qualifications as attorneys and
counsellors, and are entitled to appear as such and conduct causes therein. From its entry the
parties become officers of the court, and are responsible to it for professional misconduct. They
hold their office during good behavior, and can only be deprived of it for misconduct, ascertained
and declared by the judgment of the court, after opportunity to be heard has been offered.' 4

It is now settled by numerous cases, 5 that the courts in admitting attorneys to, and in expelling
them from, the bar, act judicially, and that such proceedings are subject to review on writ of error
or appeal, as the case may be.
From these cases the conclusion is irresistible, that the profession of the law, like the clerical
profession and that of medicine, is an avocation open to every citizen of the United States. And
while the legislature may prescribe qualifications for entering upon this pursuit, they cannot,
under the guise of fixing qualifications, exclude a class of citizens from admission to the bar. The
legislature may say at what age candidates shall be admitted; may elevate or depress the
standard of learning required. But a qualification, to which a whole class of citizens never can
attain, is not a regulation of admission to the bar, but is, as to such citizens, a prohibition. For
instance, a State legislature could not, in enumerating the qualifications, require the candidate to
be a white citizen. This would be the exclusion of all colored citizens, without regard to age,
character, or learning. Yet no sound mind can draw a distinction between such an act and a
custom, usage, or law of a State, which denies this privilege to all female citizens, without regard
to age, character, or learning. If the legislature may, under pretence of fixing qualifications,
declare that no female citizen shall be permitted to practice law, it may as well declare that no
colored citizen shall practice law; for the only provision in the Constitution of the United States
which secures to colored male citizens the privilege of admission to the bar, or the pursuit of the
other ordinary avocations of life, is the provision that 'no State shall make or enforce any law
which shall abridge the privileges or immunities of a citizen.' And if this provision does protect
the colored citizen, then it protects every citizen, black or white, male or female.
Now, Mrs. Bradwell is a citizen of the United States, and of the State of Illinois, residing therein;
she has been judicially ascertained to be of full age, and to possess the requisite character and
learning.
Still admission to the bar was denied her, not upon the ground that she was not a citizen; not for
want of age or qualifications; not because the profession of the law is not one of those
avocations which are open to every American citizen as matter of right, upon complying with the
reasonable regulations prescribed by the legislature; but first upon the ground that
inconvenience would result from permitting her to enjoy her legal rights in this, to wit, that her
clients might have difficulty in enforcing the contracts they might make with her, as their attorney,
because of her being a married woman; and, finally, on the ground of her sex, merely.
Now, the argument ab inconvenienti, which might have been urged with whatever force belongs
to it, against adopting the fourteenth amendment in the full scope of its language, is futile to
resist its full and proper operation, now that it has been adopted. But that objection is really
without force; for Mrs. Bradwell, admitted to the bar, becomes an officer of the court, subject to
its summary jurisdiction. Any malpractice or unprofessional conduct towards her client would be
punishable by fine, imprisonment, or expulsion from the bar, or by all three. Her clients would,
therefore, not be compelled to resort to actions at law against her. The objection arising from her
coverture was in fact abandoned, in its more full consideration of the case, by the court itself;
and the refusal put upon the fact that the statute of Illinois, interpreted by the light of early days,
could not have contemplated the admission of any woman, though unmarried, to the bar. But
whatever the statute of Illinois meant, I maintain that the fourteenth amendment opens to every
citizen of the United States, male or female, black or white, married or single, the honorable
professions as well as the servile employments of life; and that no citizen can be excluded from
any one of them. Intelligence, integrity, and honor are the only qualifications that can be
prescribed as conditions precedent to an entry upon any honorable pursuit or profitable
avocation, and all the privileges and immunities which I vindicate to a colored citizen, I vindicate
to our mothers, our sisters, and our daughters. The inequalities of sex will undoubtedly have
their influence, and be considered by every client desiring to employ counsel.
There may be cases in which a client's rights can only be rescued by an exercise of the rough
qualities possessed by men. There are many causes in which the silver voice of woman would
accomplish more than the severity and sternness of man could achieve. Of a bar composed of
men and women of equal integrity and learning, women might be more or less frequently
retained, as the taste or judgment of clients might dictate. But the broad shield of the
Constitution is over them all, and protects each in that measure of success which his or her
individual merits may secure.
No opposing counsel.
Mr. Justice MILLER delivered the opinion of the court.
The record in this case is not very perfect, but it may be fairly taken that the plaintiff asserted her
right to a license on the grounds, among others, that she was a citizen of the United States, and
that having been a citizen of Vermont at one time, she was, in the State of Illinois, entitled to any
right granted to citizens of the latter State.
The court having overruled these claims of right founded on the clauses of the Federal
Constitution before referred to, those propositions may be considered as properly before this
court.
As regards the provision of the Constitution that citizens of each State shall be entitled to all the
privileges and immunities of citizens in the several States, the plaintiff in her affidavit has stated
very clearly a case to which it is inapplicable.
The protection designed by that clause, as has been repeatedly held, has no application to a
citizen of the State whose laws are complained of. If the plaintiff was a citizen of the State of
Illinois, that provision of the Constitution gave her no protection against its courts or its
legislation.
The plaintiff seems to have seen this difficulty, and attempts to avoid it by stating that she was
born in Vermont.
While she remained in Vermont that circumstance made her a citizen of that State. But she
states, at the same time, that she is a citizen of the United States, and that she is now, and has
been for many years past, a resident of Chicago, in the State of Illinois.
The fourteenth amendment declares that citizens of the United States are citizens of the State
within which they reside; therefore the plaintiff was, at the time of making her application, a
citizen of the United States and a citizen of the State of Illinois.
We do not here mean to say that there may not be a temporary residence in one State, with
intent to return to another, which will not create citizenship in the former. But the plaintiff states

nothing to take her case out of the definition of citizenship of a State as defined by the first
section of the fourteenth amendment.
In regard to that amendment counsel for the plaintiff in this court truly says that there are certain
privileges and immunities which belong to a citizen of the United States as such; otherwise it
would be nonsense for the fourteenth amendment to prohibit a State from abridging them, and
he proceeds to argue that admission to the bar of a State of a person who possesses the
requisite learning and character is one of those which a State may not deny.
In this latter proposition we are not able to concur with counsel. We agree with him that there
are privileges and immunities belonging to citizens of the United States, in that relation and
character, and that it is these and these alone which a State is forbidden to abridge. But the right
to admission to practice in the courts of a State is not one of them. This right in no sense
depends on citizenship of the United States. It has not, as far as we know, ever been made in
any State, or in any case, to depend on citizenship at all. Certainly many prominent and
distinguished lawyers have been admitted to practice, both in the State and Federal courts, who
were not citizens of the United States or of any State. But, on whatever basis this right may be
placed, so far as it can have any relation to citizenship at all, it would seem that, as to the courts
of a State, it would relate to citizenship of the State, and as to Federal courts, it would relate to
citizenship of the United States.
The opinion just delivered in the Slaughter-House Cases 6 renders elaborate argument in the
present case unnecessary; for, unless we are wholly and radically mistaken in the principles on
which those cases are decided, the right to control and regulate the granting of license to
practice law in the courts of a State is one of those powers which are not transferred for its
protection to the Federal government, and its exercise is in no manner governed or controlled by
citizenship of the United States in the party seeking such license.
It is unnecessary to repeat the argument on which the judgment in those cases is founded. It is
sufficient to say they are conclusive of the present case.
JUDGMENT AFFIRMED.
Mr. Justice BRADLEY:
I concur in the judgment of the court in this case, by which the judgment of the Supreme Court
of Illinois is affirmed, but not for the reasons specified in the opinion just read.
The claim of the plaintiff, who is a married woman, to be admitted to practice as an attorney and
counsellor-at-law, is based upon the supposed right of every person, man or woman, to engage
in any lawful employment for a livelihood. The Supreme Court of Illinois denied the application
on the ground that, by the common law, which is the basis of the laws of Illinois, only men were
admitted to the bar, and the legislature had not made any change in this respect, but had simply
provided that no person should be admitted to practice as attorney or counsellor without having
previously obtained a license for that purpose from two justices of the Supreme Court, and that
no person should receive a license without first obtaining a certificate from the court of some
county of his good moral character. In other respects it was left to the discretion of the court to
establish the rules by which admission to the profession should be determined. The court,
however, regarded itself as bound by at least two limitations. One was that it should establish
such terms of admission as would promote the proper administration of justice, and the other
that it should not admit any persons, or class of persons, not intended by the legislature to be
admitted, even though not expressly excluded by statute. In view of this latter limitation the court
felt compelled to deny the application of females to be admitted as members of the bar. Being
contrary to the rules of the common law and the usages of Westminster Hall from time
immemorial, it could not be supposed that the legislature had intended to adopt any different
rule.
The claim that, under the fourteenth amendment of the Constitution, which declares that no
State shall make or enforce any law which shall abridge the privileges and immunities of citizens
of the United States, the statute law of Illinois, or the common law prevailing in that State, can
no longer be set up as a barrier against the right of females to pursue any lawful employment for
a livelihood (the practice of law included), assumes that it is one of the privileges and immunities
of women as citizens to engage in any and every profession, occupation, or employment in civil
life.
It certainly cannot be affirmed, as an historical fact, that this has ever been established as one of
the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as
nature herself, has always recognized a wide difference in the respective spheres and destinies
of man and woman. Man is, or should be, woman's protector and defender. The natural and
proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the
occupations of civil life. The constitution of the family organization, which is founded in the divine
ordinance, as well as in the nature of things, indicates the domestic sphere as that which
properly belongs to the domain and functions of womanhood. The harmony, not to say identity,
of interest and views which belong, or should belong, to the family institution is repugnant to the
idea of a woman adopting a distinct and independent career from that of her husband. So firmly
fixed was this sentiment in the founders of the common law that it became a maxim of that
system of jurisprudence that a woman had no legal existence separate from her husband, who
was regarded as her head and representative in the social state; and, notwithstanding some
recent modifications of this civil status, many of the special rules of law flowing from and
dependent upon this cardinal principle still exist in full force in most States. One of these is, that
a married woman is incapable, without her husband's consent, of making contracts which shall
be binding on her or him. This very incapacity was one circumstance which the Supreme Court
of Illinois deemed important in rendering a married woman incompetent fully to perform the
duties and trusts that belong to the office of an attorney and counsellor.
It is true that many women are unmarried and not affected by any of the duties, complications,
and incapacities arising out of the married state, but these are exceptions to the general rule.
The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife
and mother. This is the law of the Creator. And the rules of civil society must be adapted to the
general constitution of things, and cannot be based upon exceptional cases.
The humane movements of modern society, which have for their object the multiplication of
avenues for woman's advancement, and of occupations adapted to her condition and sex, have
my heartiest concurrence. But I am not prepared to say that it is one of her fundamental rights

and privileges to be admitted into every office and position, including those which require highly
special qualifications and demanding special responsibilities. In the nature of things it is not
every citizen of every age, sex, and condition that is qualified for every calling and position. It is
the prerogative of the legislator to prescribe regulations founded on nature, reason, and
experience for the due admission of qualified persons to professions and callings demanding
special skill and confidence. This fairly belongs to the police power of the State; and, in my
opinion, in view of the peculiar characteristics, destiny, and mission of woman, it is within the
province of the legislature to ordain what offices, positions, and callings shall be filled and
discharged by men, and shall receive the benefit of those energies and responsibilities, and that
decision and firmness which are presumed to predominate in the sterner sex.
For these reasons I think that the laws of Illinois now complained of are not obnoxious to the
charge of abridging any of the privileges and immunities of citizens of the United States.
Mr. Justice SWAYNE and Mr. Justice FIELD concurred in the foregoing opinion of Mr. Justice
BRADLEY.
The CHIEF JUSTICE dissented from the judgment of the court, and from all the opinions.
Facts. Mrs. Myra Bradwell was denied an application to practice law in the Illinois Supreme
Court. Her petition included the requisite certificate attesting to her good character and
qualifications. The United States Supreme Court affirmed.
Issue. Does the Fourteenth Amendment to the United States Constitution provide that one of
the privileges and immunities of women as citizens is to engage in any profession?
Held. The admission to the bar is a matter reserved to the states and Bradwells right to practice
law is not protected by the Fourteenth Amendment.
Concurrence. Justice Bradley. The Illinois Supreme Court requires a certificate from the court
of some county of his good moral character, and is otherwise left to the discretion of the court.
The court found itself bound by two limitations: to promote the proper administration of justice
not to admit any class of persons not intended by the legislature to be admitted, even though not
expressly excluded by statute.
Historically the right to engage in every profession has not been one of the established
fundamental privilege and immunities of the sex. The law has always recognized a wide
difference in the respective spheres and destinies of man and woman. The harmony of interests
and views that belong to the family institution is repugnant to the idea of a woman adopting a
distinct and independent career from her husband.
Historically women had no legal existence, and were incapable of making binding contracts
without her husbands consent. This played heavily in the Supreme Court of Illinois decision.
The paramount destiny of women is to fulfill the noble and benign offices of wife and mother.
Discussion. The purpose of this concurring opinion is to demonstrate a classic statement of
separate spheres ideology.
Facts of the case Myra Bradwell asserted her right to a license to practice law in Illinois by
virtue of her status as a United States citizen. The judges of the Illinois Supreme Court denied
her application with only one judge dissenting.
Issue Is the right to obtain a license to practice law guaranteed by the Fourteenth Amendment
to all citizens of the United States?
Conclusion No. While the Court agreed that all citizens enjoy certain privileges and immunities
which individual states cannot take away, it did not agree that the right to practice law in a
state's courts is one of them. There was no agreement, argued Justice Miller, that this right
depended on citizenship. In his concurrence, Justice Bradley went above and beyond the
constitutional explanations of the case to describe the reasons why it was natural and proper for
women to be excluded from the legal profession. He cited the importance of maintaining the
"respective spheres of man and woman," with women performing the duties of motherhood and
wife in accordance with the "law of the Creator."
X. F. Use of Surname Art 370, 373, 377, 378 NCC
Cases
ELENITA LEDESMA SILVA, ET AL., plaintiffs-appellants, vs. ESTHER PERALTA, defendantappellee. E.B. Garcia Law Offices and Ledesma, Puno Guytingco and Antonio & Associates for
plaintiffs-appellants. Quijano, Abellera, Santos Corrales & Nitrorreda for defendant-appellee.
R E S O L U T I O N REYES, J.B.L., J.: Appellants spouses Saturnino Silva and Elenita
LedesmaSilva pray for reconsideration of this Court's decision of November 25, 1960, claiming
that
(1) Appellant Elenita Silva should be awarded moral damages for Esther Peralta's unauthorized
use of the designation of "Mrs. Esther Silva";
(2) The award of pecuniary damages against appellant Saturnino Silva is unwarranted by the
facts and the law.
It is contended that the prohibition imposed upon appellee Esther Peralta from representing
herself, directly or indirectly, as the wife of Saturnino Silva should result in an award of moral
damages in favor of appellant Elenita Ledesma, whose exclusive right to the appellation is
recognized by the decision.
This argument misapprehends the bias of the decision. Esther Peralta was forbidden from
representing herself as Mrs. Saturnino Silva for the reason that it was proved in this case that
she was not legally married to him, and because he is now lawfully married to Elenita Ledesma.
But an award of damages in the latter's favor would require a further finding that the assumption
of the disputed status by Esther Peralta was made in bad faith or through culpable negligence
and no such finding has been made in the decision. The facts are that the Esther in good faith
regarded herself as Saturnino's lawful wife, and that the man himself led her into this belief prior
to his desertion. That later on, unknown to Esther, Silva should have married his co-appellant in
the United States is not sufficient to impose upon Esther any liability for damages or to destroy
her original good faith, there being no proof that the existence of a valid marriage between
Saturnino and Elenita was adequately driven home to Esther before this case was instituted.
That the two appellants Silva were living together as husband and wife was certainly not
sufficient proof, considering Saturnino Silva's past history and conduct. How was appellee to
know that Saturnino's connection with Elenita Ledesma was any more legitimate than his
previous one with appellee herself?

Moreover, the trial court found Elenita Silva's claim for damages not adequately proved, and we
have not found in the record any justification to depart from that finding.
II As to the award of damages against Saturnino Silva, it is to be noted that while the latter's
liability was extra-contractual in origin, still, under the Civil Code of 1889, the damages resulting
from a tort are measured in the same manner as those due from a contractual debtor in bad
faith, since he must answer for such damages, whether he had foreseen them or not, just as he
must indemnify not only for dumnum emergens but also forlucrum cessans, as required by
Article 1106. Article 1902 of the 1889 Civil Code of Spain formulated no standard for
measuring quasidelictual damages, the article merely prescribing that the guilty party "shall be
liable for the damages so done". This indefiniteness led modern civil law writers to hold that the
standards set in Articles 1106 and 1107, place in the general rules on obligations, "rigen por
igual para las contractuales y las extra contractuales, las preestablecidas y las que broten exlege de actos ilicitos". (Roces, Notesto Fisher, "Los Daos Civiles y su Reparacion," (1927).
Since liability for damages arises in either case from a breach of a pre-existing obligation (to
behave without fault or negligence in case of quasi-delicts, and, in case of contracts, to observe
the conduct required by the stipulation),it is logical to conclude with Planiol that "La
responsabilidad contractual y la extra contractual tienen el mismo fundamento, por lo que se
hallan sujetas en principio a identicas regalas" (6 Planiol-Ripert, Derecho Civil, p. 529,sec. 378).
Giorgi is of the same opinion (5 Teoria de Obligaciones, pp. 133, 207-208). So is de Cossio y
Corral("El Dolo en el Derecho Civil", pp. 132-133):
Pero si ello es asi, resulta claro que la aproximacionentre esta clase de culpa y la contractual,
es cada dia mayor,hasta el extremo de que, segun hemos antes indicado solamente se pueden
sealar diferencias accessorias, y muchas veces aparentes entre una y otra. En primer termino,
porque el conceptode culpa contractual se extiende no solo a las obligacionesnacidas ex
contractu, sino, en general, a todas aquellas preexistentes entre las partes a la realidad del acto
daoso (obligaciones legales). de otra parte, porque si bien consideramoslas cosas, la
responsabilidad llamada extracontractual, deriva siempre del quebrantamiento de un deber
general, implicitamentereconocido por la ley, cual es el de que todos deben actuar socialmente
con la debida diligencia, evitando causar dano a los demas, y una dercho que todo ciudadano
tine, correlativamente,a no ser da__ado en su patrimonio y bienes por la conducta dolosa o
negligente de los demas. En tal sentido, habria siempre entre el autor del dao y la victima, una
relacion juridica,constituida por este derecho y aquel deber.
Este idea de unidad entre ambas instituciones se traduce en que las pretendidadas diferencias
en order a la extension de la indemnizacion, en ambos casos, no puedan defenderse a la vista
de los preceptos de nuestro Derecho positivo. En efectono contiene el Capitulo II del Titulo XVI
del Libro IV de nuestroCodigo civil norma alguna referente a la extension de la indemnizacion
que en cada caso haya de prestarse, lo que nosobliga forzosamente a acudir a las normas
general contenidasen el Capitulo II, del Titulo I de dicho libro, IV, relativeo a los "efectos de los
obligaciones", que ninguna razon peermite limitar.a naturaleza contractual, ya que el articulo
1.101 hable genericamente de obligaciones el 1.102, de "todas las obligaciones";el 1.103, de
toda clase de obligaciones", y en ninguno de los articulos subsifuientes se hace referencia a
una clase especial de obligaciones, sino a todas en general.
Que las disposiciones de este Capitulo son aplicables en loscasos de culpa extracontractual, es
doctrina constantemente reconocida, por la jurisprudencia del Tribunal Supremo. Asi,en la
sentencia de 14 de diciembre de 1894, concretandose a losarticulos 1.101, 1.103 y 1.104,
afirma que son de caracter generaly applicables a toda clase de obligaciones, no
ofreciendocontradiccion con las especiales de los articulos 1.902 y 1.903; la sentencia de 15 de
enero de 1902, permite interpretar los articulos1.902, t 1.903 por los 1.103 y 1.106, a los efectos
de determinar los elementos que han de entrar en la indemnizacion.La misma doctrina se
mantiene en la senencia de 2 de diciembrede 1946, y en otras muchas que puedieramos aducir.
Whether or not the damages awarded to appellee are a natural and direct consequence of
Silva's deceitful maneuvers in making love to appellee, and inducing her to yield to his advances
and live with him as his wife (when Silva knew all the time that he could not marry Esther Peralta
because of his undissolved marriage to an Australian woman, a prior wedlock that he concealed
from appellee), is a question of appreciation. It is clear that Esther Peralta would not have
consented to the liaison had there been no concealment of Silva's previous marriage, or that the
birth of the child was a direct result of this connection. That Esther had to support the child
because Silva abandoned her before it was born is likewise patent upon the record, and we can
not see how said appellant can be excused from liability therefor.
Silva's seduction and subsequent abandonment of appellee and his illegitimate child were
likewise the direct cause for the filling of the support case in Manila, and in order to prosecute
the same, appellee had to quit her employment in Davao. While the case could have been filed
in Davao, we do not believe that this error in selecting a more favorable venue (due to her
unfamiliarity with the technicalities of the law) should be allowed to neutralized the appellant
Silva's responsibility as the primary causative factor of the prejudice and damage suffered by
appellee.
It is argued that the maintenance of the child can not be considered as an element of damage
because the child's case for support was dismissed. This contention fails to take into account
the action there was for support as an acknowledged natural child, and that under the Civil Code
of 1889 (the law in force when the child was born), the right of natural children to be supported
by their father depended exclusively on the recognition by the father of his paternity; the rule
being that
the mere fact of birth gave no legal right to the child, and imposed no legal duty upon the father,
except, perhaps, in cases arising under the criminal law.. . . The father was not, prior to the Civil
Code, and is not now, bound to recognize his natural son by reason of the mere fact that he is
the father. . . . But as to the father the question is, and always has been, Has he performed any
acts which indicate his intention to recognize the child as his?" (Buenaventura vs. Urbano, 5
Phil., pp. 2-3).
It follows that in said suit, the real issue was whether the child had been duly recognized, the
support being a mere consequence of the recognition. Therefore, the failure of the child's action
for support did not adjudge that he was not the defendant's child, but that the defendant never
recognized him as such. That the decision of the Court of Appeal (CA-G.R. No. 24532-R)

rejecting the child's action did not declare him without right to support under all circumstances
can be seen from the following statement in the decision:
The proofs so far found in the record may possibly warrant the filing of an action for compulsory
recognition, under paragraphs 3 and 4 of Art. 283, but there was no action presented to that
effect.
Plainly, the issues and parties being different, the result of the child's action can not
constitute res judicata with regard to the mother's claim for damages against the father on
account of the amounts she was compelled to spend for the maintenance of their child. On the
contrary, the very fact that the child was not allowed to collect support from the father (appellant
therein) merely emphasizes the account of his birth and rearing, which, in turn, was a direct
consequence of appellant's tortious conduct. Since Esther Peralta had expressly that she had to
support the child (Record of Appeal, p. 27, in fine),and had prayed for such relief "as may be
deemed just and equitable in the premises", there is no reason why her expenses for the child's
maintenance should not be taken into account.
Appellants submit that the damages allowed for maintenance of the son should be limited to
P600.00 a year, because the income tax law allows only that much deduction for each child. We
do not believe that income tax deductions constitute a reasonable basis for an award of
damages, since they are fixed an entirely different purpose (to arrive at the net taxable income)
and merely represent the amount that the state is willing to exempt from taxation. At that, it
should be noted that the deductible amount has been lately increased to P1,000.00 per annum.
But even at P600.00 per annum, the damage suffered by appellee on this count, from 1945 to
1960, already amount to around P9,000.00 a year, to which must be added the loss of
appellee's salary as executive of the Girl Scouts in Davao; so that the P15,000.00 damages
awarded by the court below is by no means excessive, as already held in our decision in chief.
Appellants also contend that the claim for pecuniary damages has prescribed, because they
date back to 1945. Suffice it to note that the defense of prescription was not invoked by
appellants against the claim for pecuniary damages, and this defense must be regarded as
waived in relation to the same. Appellant's reply to the appellee'sfirst counterclaim in her second
amended answer (which was for actual or pecuniary damages) read as follows (Answer to
Counterclaim, Rec. App. p. 33):
1. That plaintiff is without knowledge or information sufficient to to form a belief as to the truth
of the allegations continued under paragraphs 6, 7, 8, 9, 10, 11 and 12 of the first counterclaim
and, therefore, specifically denies the same.
The defense of prescription was actually interposed only against the second counterclaim, in
this wise:
1. That the cause of action alleged in the second counterclaim has already prescribed more
than ten years having already elapsed. (Answer to Counterclaim, Rec. App., p. 34).
The second counterclaim referred to was for damages due to "mental torture, anguish and hurt
feelings, all to her damage in the amount of P250,000." (Rec. App. p. 28).Upon the other hand,
our own award for moral damages was based, not on the deceit practiced by Silva in securing
Esther's assent to live maritally with him, but on his subsequent harassment of her in 1945, by
filing suit against her in different provinces and otherwise applying pressure to cause her to
abandon her child's case. As this cause of action arose less than three years before the present
action was filed, the defense of prescription is rendered untenable against it, for the limitation
period had not yet expired when the suit was brought.
WHEREFORE, the motion for reconsideration is denied.
Bengzon, C.J., Padilla, Labrador, Concepcion, Barrera, Paredes and Dizon, JJ., concur.
SILVA vs. PERALTA
FACTS: At the outbreak of the war in 1941, the defendant Esther Peralta she residedwith her
sister, Mrs. Pedro Pia, in Maco, Tagum, Mabini Davao. Saturnino Silva, then anAmerican citizen
and an officer of the United States Army and married to one PrescillaIsabel of Australia, had
been ordered to sent to the Philippines during the enemy
occupation to help unite the guerillas in their fight for freedom. He was thecommanding officer of
the 130th Regiment general headquarters at Magugpo, Tagum,Davao.
Sometime during the year 1944, Florence, a younger sister of the defendant, wasaccused of
having collaborated with the enemy, and for this she was arrested, andaccompanied by Esther,
brought to Anibongan and later to the general headquarters atMagugpo for investigation
that Silva first met Esther Florence was exonorated of thecharges made against her and was
ordered released, but with the advice that she shouldnot return to Maco for the time being.
Heeding such advice, Florence and her sister,appellee herein, went to live with the spouses Mr.
and Mrs. Camilo Doctolero at Tipas,Magugpo, Davao.Silva started to frequent the house of the
Doctoleros, and soon professed love forEsther. Having been made to believe that he was single,
she accepted his marriageproposal; and the two were married on January 14, 1945 by one
Father Cote on theoccasion of a house blessing. No documents of marriage were prepared nor
executed,allegedly because there were no available printed forms for the purpose. Hence,
thelovers lived together as husband and wife. From the "marriage", a child,
namedSaturnino Silva, Jr., was born.On May 8, 1945, Silva sustained serious wounds in the
battle of Ising, for which reason,he was transferred to Leyte, and later to the United States, he
divorced Precilla Isabeland later, on May 9, 1948, contracted marriage with plaintiff Elenita
Ledesma Silva.Upon his return to the Philippines, appellee Esther Peralta demanded support for
theirchild, and, his refusal, instituted a suit for support in the Court of First Instance of Manila.
Thereupon, the present action was filed against Esther, and another suit againsther was
instituted in Cotabato.The Trial Court awarded damages in favor of the defendant thus the
plaintiffs-appellantappeal on both questions of fact and law from the decision of the Court of
First Instanceof Davao to the Supreme Court, the amount involved being more than
P200,000.00.
ISSUE:
Whether or not damages awarded to appellee are a natural and directconsequence of Silva's
deceitful maneuvers in making love to appellee, and inducing herto yield to his advances and
live with him as his wife.

DECISION OF THE SUPREME COURT: YES.

It is to be noted that while the latter's liabilitywas extra-contractual in origin, still, under the Civil
Code in 1889, the damages resultingfrom a tort are measured in the same manner as those
due from a contractual debtor inbad faith, since he must answer for such damages, whether he
had forseen them or not, just as he must indemnify not only for damnum emergens but also
for lacrum cessans,as required by Article 1106. Article 1002 of the 1889 Civil Code of Spain
formulated nostandard for measuring quasi-delictual damages, the article merely prescribing
that theguilty party "shall be liable for the damages so done". This indefiniteness led moderncivil
law writers to hold that the standards set is articles 1106 and 1107, placed in thegeneral rules on
obligations, "rigen por igual para las contractuales y las extrascontractuales, las pre
establecidas y las que borten ex-lege de actos ilicitos". (Roces,Notes to Fisher)" Los Daos
Civiles y su Reparacion,"(1927)
It is well to note in this connection, that Silva's act in hiding from appellee that he couldnot
legally marry her, because, he allegedly have an Australian wife, was not merenegligence, but
actual fraud (dolo) practiced upon the appellee. Consequently, heshould stand liable for any and
all damages arising therefrom, which include theexpense of maintaining the offspring and the
expenses of litigation to protect the child'sright's and the loss of the mother's own earnings. This
is a liability that flows even fromArticles 1902 and 1107 (par. 2) of 1889 (Arts. 2176 and 2202 of
the New Code).Art. 1902. Any person who by an act or omission causes damage to another by
his faultor negligence shall be liable for the damage as done.Art. 1107. In case of fraud (dolo)
the debtor shall be liable for all losses and damageswhich clearly arise from the failure to fulfill
the obligation.
Tolentino v CA (1988)
Private respondent Consuelo David married Arturo Tolentino in 1931. The marriage was
dissolved and terminated in 1943 pursuant to the law during the Japanese occupation by a
decree of absolute divorce on the grounds of desertion and abandonment by the wife for at least
3 continuous years.
Arturo Tolentino then married Pilar Adorable but she died soon after the marriage. After
that, Constancia married Arturo Tolentino on April 21, 1945 and they had 3
children. Constancia Tolentino is the present legal wife of Arturo Tolentino.
Consuelo David continued using the surname Tolentino after the divorce and up to the time that
the complaint was filed. Her usage of the surname Tolentino was authorized by the family of
Arturo Tolentino (brothers and sisters).
In RTC, Consuelo David should discontinue her usage of the surname of Tolentino. The CA
decision reversed that of the RTCs.
ISSUES: 1. WON the petitioners cause of action has already prescribed
2. WON the petitioner can exclude by injunction Consuelo David from using the surname of her
former husband from whom she was divorced.
HELD: 1. Yes. In Art 1150 CC The time for prescription of all kinds of actions, when there in no
special provision which ordains otherwise, shall be counted from the day they may be brought.
Art 1149 CC Period of prescription is 5 years from the right of action accrues.
The action has long prescribed because she married Arturo Tolentino on April 21, 1945; Civil
Code took effect on August 30, 1950; She acquired knowledge that Consuelo David was still
using the surname Tolentino in 1951.
She should have filed the case after she obtained knowledge that Consuelo David was still
using the surname Tolentino. The case was filed on November 23, 1971 or 20 years after
she obtained knowledge.
2. No. Philippine law is silent whether or not a divorced woman may continue to use the
surname of her husband because there are no provisions for divorce under Philippine law.
On the Commentary of Tolentino as regards Art 370 of the CC. The wife cannot claim an
exclusive right to use the husbands surname. She cannot be prevented from using it, but
neither can she restrain others from using it.
Art 371 is not applicable because it contemplates annulment while the present case refers to
absolute divorce where there is severance of valid marriage ties. Effect of divorce was more
akin to death of the spouse where the deceased woman is continued to be referred to as Mrs.
of the husband even if he has remarried.
If the appeal would be granted the respondent would encounter problems because she was able
to prove that she entered into contracts with third persons, acquired properties and entered into
other legal relations using the surname Tolentino. Petitioner failed to show the she would suffer
any legal injury or deprivation of right.
There was no usurpation of the petitioners name and surname. Usurpation implies injury to the
interests of the owner of the name. It consists with the possibility of confusion of identity. The
elements of usurpation were 1. Actual use of anothers name, 2. Use is unauthorized, 3. Use of
anothers name is to designate personality or identity of a person. None of these elements were
present in the case because public knowledge referred to Constancia as the legal wife of Arturo,
and Consuelo did represent herself after the divorce as Mrs. Arturo Tolentino.
Silva v Peralta was cited by the petitioner but the case is not applicable. In Silva, it was not
mere use of the surname that was enjoined but the defendants representation that she was the
wife of Saturnino Silva, there was usurpation of the status of the wife.
X. G. Relief from Courts Art 72
Cases
ANTONIO PEREZ, in his own representation and as Guardian Ad Litem of his son BENIGNO
PEREZ y TUASON, Plaintiff-Appellant, v. ANGELA TUASON DE PEREZ, Defendant-Appellee.
Alfonso Felix Jr. for Appellant. Jose W. Diokno for Appellee.
SYLLABUS
1. COURTS; JURISDICTION; GUARDIANSHIP COGNIZABLE BY JUVENILE AND DOMESTIC
RELATIONS COURT. Since the complaint asks that defendant be placed under guardianship
because of her prodigality, and prays that a suitable person or institution be appointed to
administer her properties, the action falls squarely under the provisions of subsection (b), Sec.
38-A, Republic Act No. 1401, as a "case involving. . . . . guardianship" exclusively cognizable by

the Juvenile and Domestic Relations Court.

2. ID.; ID.; PROCEEDINGS UNDER ART. 116, CIVIL CODE; COGNIZABLE BY JUVENILE AND
DOMESTIC RELATIONS COURT. Inasmuch as the plaintiff seeks to recover damages
because his wifes acts placed him "in an embarrassing and contemptible position and causing
him grave anxiety, wounded feelings, extreme humiliation," the case involves acts of a spouse
that brings . . . dishonor . . . upon the other "under Art. 116," Civil Code; hence, pursuant to
subsection (d), Sec. 38-A of Republic Act No. 1401, this action likewise fails exclusively within
the jurisdiction of the Juvenile and Domestic Relations Court.
3. ID.; ID.; MERE SUBMISSION OF COMPROMISE DOES NOT PLACE PARTY IN
ESTOPPEL; COURT MAY MOTU PROPRIO DISMISS ACTION. Assuming for the sake of
argument that defendant was placed in such estoppel by merely executing the compromise and
submitting it to the Courts approval, such estoppel could not operate against it, because
regardless of the parties, the Court, at any time, could motu proprio inquire and determine
whether it had jurisdiction, and could dismiss the case if it found it had no power to act therein.
D E C I S I O N REYES, J.B.L., J.: Appeal from an order, dated October 27, 1958, of the Court
of First Instance of Manila, dismissing its Civil Case No. 34626 for lack of jurisdiction.
Plaintiff Antonio Perez, in his own representation and as guardian ad litem of his adoptive son,
Benigno Perez y Tuason, initiated this civil case against Angela Tuason de Perez, the plaintiffs
wife and Benignos mother. The complaint states three causes of action.
Under the first cause of action, it is averred that the defendant is squandering all of her estate on
a young man by the name of Jose Antonio Campos Boloix, because of which Benigno Perez y
Tuason, acting through his guardian ad litem, the plaintiff, prays that his mother, the defendant,
be declared a prodigal and placed under guardianship; that a suitable person or institution be
appointed to administer her properties; and that during the pendency of this suit, a writ of
injunction be issued to prevent the continued waste and dissipation of her properties.
In his second cause of action, the husband Antonio Perez, for and in his own behalf, asserts that
by virtue of the said alleged acts of prodigality committed by the defendant wife, the conjugal
partnership of gain is being dissipated to the prejudice of both spouses; wherefore, he prays for
a writ of injunction to restrain her from "dissolving and liquidating the conjugal partnership of
gains."
Finally, as a third cause of action, the plaintiff husband avers that, in addition to the
aforementioned acts, the defendant has repeatedly advised him, as well as other persons, that
she intends to marry Jose Campos Boloix and to have a child by him not withstanding her
present marriage to the plaintiff, Antonio Perez; and that, if she could not have such a child, she
was willing to have one by any other person, just to put plaintiff in a ridiculous and embarrassing
position. Plaintiff, therefore, seeks to recover from her the total sum of P185,000.00 by way of
damages and attorneys fees. On January 2, 1958, after a preliminary hearing, wherein plaintiff
was heard ex parte, the Court of First Instance of Manila issued a preliminary injunction as
prayed for in the complaint.
On March 19, 1958, the defendant appeared through counsel and prayed for the dismissal of
the case on the ground of res judicata, and that the preliminary injunction be dissolved. Said
motion was denied by the court a quo in its order of April 2, 1958.
On April 16, 1958, the defendant filed a second motion to dismiss the case, this time on the
ground that the Court of First Instance of Manila had no jurisdiction over the present
proceedings, which, according to her, is vested under Republic Act No. 1401 with the Juvenile
and Domestic Relations Court. While this last motion was being considered by the Court, a
compromise agreement was arrived at and submitted for approval of the court on May 2, 1958.
On May 31, 1958, before the Court could act, defendant filed an opposition to the approval of
the compromise agreement, on the ground that (a) the same is contrary to law and (b) it was not
freely or validly entered into by her representative. Without resolving this particular question, the
lower court asked the parties to submit further memoranda on the sole issue of jurisdiction. After
this was done, the trial court, by order of September 30, 1958, ordered the dismissal of the case
on the ground that it lacked jurisdiction over the subject matter. Hence, plaintiffs Perez (father
and son) appealed.
Appellants assign three alleged errors in the order appealed from, as follows:jgc:
"The trial court erred in holding that the Court of First Instance of Manila has no jurisdiction over
the causes of action alleged by Antonio Perez in the complaint.
"The trial court erred in holding that the Court of First Instance of Manila has no jurisdiction over
the causes of action alleged by Benigno Perez y Tuason in the complaint.
The trial court cried in holding that the Doctrine of Estoppel of Jurisdiction is not applicable in
this country and erred further in failing to apply said doctrine to the present proceedings."
We find the appeal to be untenable.
Republic Act No. 1401, creating the Juvenile and Domestic Relations Court of the City of Manila
and defining its jurisdiction, provides, among other things, that:jgc:
"SEC. 38-A Provisions of the Judiciary Act to the contrary notwithstanding, the court shall
have exclusive original jurisdiction to hear and decide the following cases after the effectivity of
this Act:chanrob1es virtual 1aw library
(b) Cases involving custody, guardianship, adoption, paternity and acknowledgment;
x
x
x
(d) Proceedings brought under the provisions of Articles one hundred sixteen, two hundred
twenty-five, two hundred fifty, two and three hundred thirty-one of the Civil Code." (Italics
supplied.)
While Article 116 of the Civil Code (referred to in subsection [d] above) states:jgc:
"When one of the spouses neglects his or her duties to the conjugal union or brings danger,
dishonor or material injury upon the other, the injured party may apply to the court for relief.
The court may counsel the offended party to comply with his or her duties, and take such
measures as may be proper." (Italics supplied.)
It is easy to see that the first cause of action set forth in the complaint, wherein the minor
Benigno Perez y Tuason, through his representative, asks that his mother be placed under
guardianship because of her alleged prodigality, and prays that a suitable person or institution
be appointed to administer her properties, is exclusively cognizable by the Domestic Relations
Court. The action falls squarely under the provisions of subsection (b), Section 38-A, R. A. 1401,

above-quoted, as a "case involving . . guardianship." No error was, therefore, committed in the

appealed order in holding that this cause of action lay outside the jurisdiction of the Court of First
Instance.
The same thing can be said of the third cause of action wherein Antonio Perez seeks to recover
damages and attorneys fees because his wifes act (avowing openly her intention to marry and
have a child by Campos Boloix or if not, by anyone else) placed the plaintiff "in an embarrassing
and contemptible position" (sic) and causing him "grave anxiety, wounded feelings, extreme
humiliation." The case involves acts of a spouse that "brings . . . dishonor . . . upon the other
(spouse)" under Article 116 of the Civil Code of the Philippines, and also lies within the
jurisdiction of the Domestic Relations Court. The law (subsection (d), Sec. 38-A) expressly gives
that court exclusive original jurisdiction over proceedings under the provisions of Article 116 of
the Civil Code.
More controversial is the issue involved in the second cause of action of the complaint, wherein
Antonio Perez alleges that the prodigal acts of his wife result in the conjugal partnership of gains
being dissipated to the prejudice of both spouses, and prays for a writ of injunction to restrain
her from "dissolving and liquidating the conjugal partnership of gains." The Court of First
Instance held that this cause of action is also one of those provided by Article 116 of the Civil
Code, as a case where one spouse "brings danger . . . or material injury" upon the other, and,
therefore, relief should be sought in the Court of Domestic Relations.
We are inclined to think that" material injury" as used in Article 116 does not refer to patrimonial
(economic) injury or damage, but to personal (i. e. physical or moral) injury to one of the
spouses, since Article 116 lies in the chapter concerning personal relations between husband
and wife. Nevertheless, the court below was correct in viewing this cause of action as primarily
predicated on the grant of guardianship due to alleged prodigality of the wife, since the
allegation thereof is therein reiterated, and the remedy of injunction sought against further (i.e.
future) acts of disposition (no annulment of her past transactions is demanded) must be
necessarily based on the wifes being subject to guardianship.
If the wife were not in any way incapacitated, the mere fact that the alienation of her paraphernal
would deprive the conjugal partnership of the future fruits thereof would not give rise to a cause
of action for injunction, since the conjugal partnership is only entitled to the net fruits of such
property, after deducting administration expenses (Peoples Bank v. Register of Deeds, 60 Phil.,
167), and it is now here alleged that any such net fruits exist. More fundamental still, the wifes
statutory power to alienate her paraphernal (Phil. Civil Code, Article 140) necessarily implies
power to alienate its future fruits, since the latter are mere accessory to the property itself.
Wherefore, the second cause of action is inextricably woven into and cannot stand
independently of the demand for guardianship of the wife, the injunction being a mere incident
thereof; so that like the first cause of action, the second also lay within the exclusive jurisdiction
of the Court of Domestic Relations.
The third alleged error charged against the Court below, that it should have held that defendant
was in estoppel to question the jurisdiction of the trial court, is, on its face, without merit.
Assuming for the sake of argument that defendant appellee was placed in such estoppel by
merely executing the compromise and submitting it to the Courts approval, such estoppel could
not operate against the Court. Regardless of the parties, the Court, at any time, could motu
proprio inquire and determine whether it had jurisdiction over the subject matter of the action,
and could dismiss the case (as it did) if it found that it had no power to act therein.
The order appealed from is hereby affirmed. Costs against appellants. Paras, C.J., Bengzon,
Bautista Angelo, Labrador, Concepcion, Barrera, Gutierrez David, Paredes, and Dizon, JJ.,
concur.
FACTS: Antonio Perez, as guardian ad litem of his son, filed a civil case against defendant
Angela Tuason de Perez at the CFI Manila.
He wants to declare his wife as prodigal and place under guardianship based on the following
allegations:
o she was squandering her estate on a young man named Jose Boloix
o she was spending the conjugal partnership of gain
o defendant has expressed her desire to marry and have children with Jose Boloix, if only to
embarrass her husband.
CFI dismissed the case for lack of jurisdiction.
ISSUE: WON the case falls under the jurisdiction of the CFI or the Juvenile Domestic Relations
Court.
HELD: RTC has no jurisdiction. It is the Juvenile and Domestic Relation Court which has
jurisdiction. Material injury pertains to personal injury (personal relations between man and wife)
and not patrimonial or financial.
MARIANO B. ARROYO, plaintiff-appellant, vs. DOLORES C. VASQUEZ DE ARROYO,
defendant-appellee. Fisher & DeWitt for appellant. Powell & Hill for appellee.
STREET, J.: Mariano B. Arroyo and Dolores C. Vasquez de Arroyo were united in the bonds of
wedlock by marriage in the year 1910, and since that date, with a few short intervals of
separation, they have lived together as man and wife in the city of Iloilo until July 4, 1920, when
the wife went away from their common home with the intention of living thenceforth separate
from her husband. After efforts had been made by the husband without avail to induce her to
resume marital relations, this action was initiated by him to compel her to return to the
matrimonial home and live with him as a dutiful wife. The defendant answered, admitting the fact
of marriage, and that she had left her husband's home without his consent; but she averred by
way of defense and cross-complaint that she had been compelled to leave by cruel treatment on
the part of her husband. Accordingly she in turn prayed for affirmative relief, to consist of (1) a
decree of separation; (2) a liquidation of the conjugal partnership; (3) and an allowance for
counsel fees and permanent separate maintenance. Upon hearing the cause the lower court
gave judgment in favor of the defendant, authorizing her to live apart from her husband, granting
her alimony at the rate of P400 per month, and directing that the plaintiff should pay to the
defendant's attorney the sum of P1,000 for his services to defendant in the trial of the case. The
plaintiff thereupon removed the case with the usual formalities by appeal to this court.

The trial judge, upon consideration of the evidence before him, reached the conclusion that the
husband was more to blame than his wife and that his continued ill-treatment of her furnished
sufficient justification for her abandonment of the conjugal home and the permanent breaking off
of marital relations with him. We have carefully examined and weighed every line of the proof,
and are of the opinion that the conclusion stated is wholly untenable. The evidence shows that
the wife is afflicted with a disposition of jealousy towards her husband in an aggravated degree;
and to his cause are chiefly traceable without a doubt the many miseries that have attended
their married life. In view of the decision which we are to pronounce nothing will be said in this
opinion which will make the resumption of married relations more difficult to them or serve as a
reminder to either of the mistakes of the past; and we prefer to record the fact that so far as the
proof in this record shows neither of the spouses has at any time been guilty of conjugal
infidelity, or has given just cause to the other to suspect illicit relations with any person. The
tales of cruelty on the part of the husband towards the wife, which are the basis of the crossaction, are in our opinion no more than highly colored versions of personal wrangles in which the
spouses have allowed themselves from time to time to become involved and would have little
significance apart from the morbid condition exhibited by the wife. The judgment must therefore
be recorded that the abandonment by her of the marital home was without sufficient justification
in fact.
In examining the legal questions involved, it will be found convenient to dispose first of the
defendant's cross-complaint. To begin with, the obligation which the law imposes on the
husband to maintain the wife is a duty universally recognized in civil society and is clearly
expressed in articles 142 and 143 of the Civil code. The enforcement of this obligation by the
wife against the husband is not conditioned upon the procurance of a divorce by her, nor even
upon the existence of a cause for divorce. Accordingly it had been determined that where the
wife is forced to leave the matrimonial abode and to live apart from her husband, she can, in this
jurisdiction, compel him to make provision for her separate maintenance (Goitia vs. Campos
Rueda, 35 Phil., 252); and he may be required to pay the expenses, including attorney's fees,
necessarily incurred in enforcing such obligation, (Mercado vs. Ostrand and Ruiz, 37 Phil., 179.)
Nevertheless, the interests of both parties as well as of society at large require that the courts
should move with caution in enforcing the duty to provide for the separate maintenance of the
wife, for this step involves a recognition of the de facto separation of the spouses a state
which is abnormal and fraught with grave danger to all concerned. From this consideration it
follows that provision should not be made for separate maintenance in favor of the wife unless it
appears that the continued cohabitation of the pair has become impossible and separation
necessary from the fault of the husband.
In Davidson vs Davidson, the Supreme Court of Michigan, speaking through the eminent jurist,
Judge Thomas M. Cooley, held that an action for the support of the wife separate from the
husband will only be sustained when the reasons for it are imperative (47 Mich., 151). That
imperative necessity is the only ground on which such a proceeding can be maintained also
appears from the decision in Schindel vs. Schindel (12 Md., 294). In the State of South Carolina,
where judicial divorces have never been procurable on any ground, the Supreme court fully
recognizes the right of the wife to have provision for separate maintenance, where it is
impossible for her to continue safely to cohabit with her husband; but the same court has more
than once rejected the petition of the wife for separate maintenance where it appeared that the
husband's alleged cruelty or ill-treatment was provoked by the wife's own improper conduct.
(Rhame vs. Rhame, 1 McCord's Chan. [S. Car.], 197; 16 Am. Dec., 597; Boydvs. Boyd, Har. Eq.
[S. Car.], 144.)
Upon one occasion Sir William Scott, pronouncing the judgment of the English Ecclesiastical
Court in a case where cruelty on the part of the husband was relied upon to secure a divorce for
the wife, made use of the following eloquent words, which are perhaps even more applicable
in a proceeding for separate maintenance in a jurisdiction where, as here, a divorce cannot be
obtained except on the single ground of adultery and this, too, after the conviction of the guilty
spouse in a criminal prosecution for that crime. Said he:
That the duty of cohabitation is released by the cruelty of one of the parties is admitted, but the
question occurs, What is cruelty? . . .
What merely wounds the mental feelings is in few cases to be admitted where they are not
accompanied with bodily injury, either actual or menaced. Mere austerity of temper, petulance of
manners, rudeness of language, a want of civil attention and accommodation, even occasional
sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty: they are
high moral offenses in the marriage-state undoubtedly, not innocent surely in any state of life,
but still they are not that cruelty against which the law can relieve. Under such misconduct of
either of the parties, for it may exist on the one side as well as on the other, the suffering party
must bear in some degree the consequences of an injudicious connection; must subdue by
decent resistance or by prudent conciliation; and if this cannot be done, both must suffer in
silence. . . .
The humanity of the court has been loudly and repeatedly invoked. Humanity is the second
virtue of courts, but undoubtedly the first is justice. If it were a question of humanity simply, and
of humanity which confined its views merely to the happiness of the present parties, it would be
a question easily decided upon first impressions. Every body must feel a wish to sever those
who wish to live separate from each other, who cannot live together with any degree of harmony,
and consequently with any degree of happiness; but my situation does not allow me to indulge
the feelings, much less the first feelings of an individual. The law has said that married persons
shall not be legally separated upon the mere disinclination of one or both to cohabit together. . . .
To vindicate the policy of the law is no necessary part of the office of a judge; but if it were, it
would not be difficult to show that the law in this respect has acted with its usual wisdom and
humanity with that true wisdom, and that real humanity, that regards the general interests of
mankind. For though in particular cases the repugnance of the law to dissolve the obligations of
matrimonial cohabitation may operate with great severity upon individual, 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 cannot shake off; they
become good husbands and good wives form the necessity of remaining husbands and wives;

for necessity is a powerful master in teaching the duties which it imposes. . . . In this case, as in
many others, the happiness of some individuals must be sacrificed to the greater and more
general good. (Evansvs. Evans, 1 Hag. Con., 35; 161 Eng. Reprint, 466, 467.)
In the light of the considerations stated, it is obvious that the cross-complaint is not well founded
and none of the relief sought therein can be granted.
The same considerations that require the dismissal of the cross-complaint conclusively prove
that the plaintiff, Mariano B. Arroyo, has done nothing to forfeit his right to the marital society of
his wife and that she is under an obligation, both moral and legal, to return to the common home
and cohabit with him. The only question which here arises is as to the character and extent of
the relief which may be properly conceded to him by judicial decree.
The action is one by which the plaintiff seeks the restitution of conjugal rights; and it is supposed
in the petitory part of the complaint that he is entitled to a permanent mandatory injunction
requiring the defendant to return to the conjugal home and live with him as a wife according to
the precepts of law and morality. Of course if such a decree were entered, in unqualified terms,
the defendant would be liable to attachment for contempt, in case she should refuse to obey it;
and, so far as the present writer is aware, the question is raised for the first time in this
jurisdiction whether it is competent for the court to make such an order.
Upon examination of the authorities we are convinced that it 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. Of course where the property rights of one of the pair are invaled,
an action for restitution of such rights can be maintained. But we are disinclined to sanction the
doctrine that an order, enforcible by process of contempt, may be entered to compel the
restitution of the purely personal rights of consortium. 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
these countries where the court of justice have assumed to compel the cohabitation of married
people shows that the policy of the practice is extremely questionable. Thus in England, formerly
the Ecclesiastical Court entertained suits for the restitution of conjugal rights at the instance of
either husband or wife; and if the facts were found to warrant it that court would make a
mandatory decree, enforcible by process of contempt in case of disobedience, requiring the
delinquent party to live with the other and render conjugal rights. Yet this practice was
sometimes criticized even by the judges who felt bound to enforce such orders, and in
Weldon vs. Weldon (9 P. D., 52), decided in 1883, Sir James Hannen, President in the Probate,
Divorce and Admiralty Division of the High Court of Justice, expressed his regret that the English
law on the subject was not the same as that which prevailed in Scotland, where a decree of
adherence, equivalent to the decree for the restitution of conjugal rights in England, could be
obtained by the injured spouse, but could not be enforced by imprisonment. Accordingly, in
obedience to the growing sentiment against the practice, the Matrimonial Causes Act (1884)
abolished the remedy of imprisonment; though a decree for the restitution of conjugal rights can
still be procured, and in case of disobedience may serve in appropriate cases as the basis of an
order for the periodical payment of a stipend in the character of alimony.
In the voluminous jurisprudence of the United States, only one court, so far as we can discover,
has ever attempted to make a peremptory order requiring one of the spouses to live with the
other; and that was in a case where a wife was ordered to follow and live with her husband, who
had changed his domicile to the City of New Orleans. The decision referred to (Gahn vs. Darby,
36 La. Ann., 70) was based on a provision of the Civil Code of Louisiana similar to article 56 of
the Spanish Civil Code. It was decided many years ago, and the doctrine evidently has not been
fruitful even in the State of Louisiana. In other states of the American Union the idea of enforcing
cohabitation by process of contempt is rejected. (21 Cyc., 1148.)
In a decision of January 2, 1909, the supreme court of Spain appears to have affirmed an order
of the Audencia Territorial de Valladolid requiring a wife to return to the marital domicile, and in
the alternative, upon her failure to do so, to make a particular disposition of certain money and
effects then in her possession and to deliver to her husband, as administrator of the ganancial
property, all income, rents, and interest which might accrue to her from the property which she
had brought to the marriage. (113 Jur. Civ., pp. 1, 11.) but it does not appear that this order for
the return of the wife to the marital domicile was sanctioned by any other penalty than the
consequences that would be visited upon her in respect to the use and control of her property;
and it does not appear that her disobedience to that order would necessarily have been followed
by imprisonment for contempt.
We are therefore unable to hold that Mariano B. Arroyo in this case is entitled to the
unconditional and absolute order for the return of the wife to the marital domicile, which is
sought in the petitory part of the complaint; though he is, without doubt, entitled to a judicial
declaration that his wife has presented herself without sufficient cause and that it is her duty to
return.
Therefore, reversing the judgment appealed from, in respect both to the original complaint and
the cross-bill, it is declared that Dolores Vasquez de Arroyo has absented herself from the
marital home without sufficient cause; and she is admonished that it is her duty to return. The
plaintiff is absolved from the cross-complaint, without special pronouncement as to costs of
either instance. So ordered. Mapa, C.J., Johnson, Araullo, Avancea and Villamor, JJ., concur.
FACTS: Plaintiff Mariano and defendant Dolores were married in 1910, and lived in Iloilo City.
They lived together with a few short intervals of separation. On July 4, 1920, defendant Dolores
went away from their common home and decided to live separately from plaintiff. She claimed
that she was compelled to leave on the basis of cruel treatment on the part of her husband. She
in turn prayed for a decree of separation, a liquidation of their conjugal partnership, and an
allowance for counsel fees and permanent separate maintenance.
CFI ruled in favor of the defendant and she was granted alimony amounting to P400, also other
fees
Plaintiff then asked for a restitution of conjugal rights, and a permanent
mandatory injunction requiring the defendant to return to the conjugal home and live with him as
his wife.
ISSUES: 1. WON defendant had sufficient cause for leaving the conjugal home
2. WON plaintiff may be granted the restitution of conjugal rights or absolute order or permanent
mandatory injunction

HELD: 1. The wife had sufficient cause for leaving the conjugal home. Cruelty done by plaintiff
to defendant was greatly exaggerated. The wife was inflicted with a disposition of jealousy
towards her husband in an aggravated degree. No sufficient cause was present.
Courts should move with caution in enforcing the duty to provide for the separate maintenance
of the wife since this recognizes the de facto separation of the two parties. Continued
cohabitation of the pair must be seen as impossible, and separation must be necessary,
stemming from the fault of the husband. She is under obligation to return to the domicile.
When people understand that they must live togetherthey learn to soften by mutual
accommodation that yoke which they know they cannot shake off; they become
good husbands and wivesnecessity is a powerful master in teaching the duties which it
imposes (Evans v. Evans)
2. On granting the restitution of conjugal rights. It is not within the province of the courts to
compel one of the spouses to cohabit with, and render conjugal rights to, the other. In the case
of property rights, such an action may be maintained. Said order, at best, would have no other
purpose than to compel the spouses to live together. Other countries, such as England and
Scotland have done this with much criticism.
Plaintiff is entitled to a judicial declaration that the defendant absented herself without sufficient
cause and it is her duty to return. She is also not entitled to support.

A. M. NO. 02-11-11-SC [MARCH 15, 2003].

RE: PROPOSED RULE ON LEGAL SEPARATION
RESOLUTION
Acting on the letter of the Chairman of the Committee on Revision of the Rules of Court
submitting for this Court's consideration and approval the Proposed Rule on Legal Separation,
the Court Resolved to APPROVED the same.
The Rule shall take effect on March 15, 2003 following its publication in a newspaper of general
circulation not later than March 7, 2003
March 4, 2003
Davide Jr. C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Sandoval Gutierrez,
Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr. and Azcuna, JJ.
Ynares-Santiago, on leave,
Corona, officially on leave.
RULE ON LEGAL SEPARATION
Section 1. Scope. - This Rule shall govern petitions for legal separation under the Family Code
of the Philippines.
The Rules of Court shall apply suppletorily.
Sec. 2. Petition. - (a) Who may and when to file. - (1) A petition for legal separation may be filed
only by the husband or the wife, as the case may be within five years from the time of the
occurrence of any of the following causes:
(a) Repeated physical violence or grossly abusive conduct directed against the petitioner, a
common child, or a child of the petitioner;
(b) Physical violence or moral pressure to compel the petitioner to change religious or political
affiliation;
(c) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the
petitioner, to engage in prostitution, or connivance in such corruption or inducement;
(d) Final judgment sentencing the respondent to imprisonment of more than six years, even if
pardoned;
(e) Drug addiction or habitual alcoholism of the respondent;
(f) Lesbianism or homosexuality of the respondent;
(g) Contracting by the respondent of a subsequent bigamous marriage, whether in or outside the
Philippines;
(h) Sexual infidelity or perversion of the respondent;
(i) Attempt on the life of petitioner by the respondent; or
(j) Abandonment of petitioner by respondent without justifiable cause for more than one year.
(b) Contents and form. - The petition for legal separation shall:
(1) Allege the complete facts constituting the cause of action.
(2) State the names and ages of the common children of the parties, specify the regime
governing their property relations, the properties involved, and creditors, if any. If there is no
adequate provision in a written agreement between the parties, the petitioner may apply for a
provisional order for spousal support, custody and support of common children, visitation rights,
administration of community or conjugal property, and other similar matters requiring urgent
action,
(3) Be verified and accompanied by a certification against forum shopping. The verification and
certification must be personally signed by the petitioner. No petition may be filed solely by
counsel or through an attorney-in-fact. If the petitioner is in a foreign country, the verification and
certification against forum shopping shall be authenticated by the duly authorized officer of the
Philippine embassy or legation, consul general, consul or vice-consul or consular agent in said
country
(4) Be filed in six copies. The petitioner shall, within five days from such filing, furnish a copy of
the petition to the City or Provincial Prosecutor and the creditors, if any, and submit to the court
proof of such service within the same period.
Failure to comply with the preceding requirements may be a ground for immediate dismissal of
the petition.

(c) Venue. - The petition shall be filed in the Family Court of the province or city where the
petitioner or the respondent has been residing for at least six months prior to the date of filing
"or in The case of a non-resident respondent, where he may be found in the Philippines, at the
election of the petitioner.
Sec. 3. Summons. - The service of summons shall be governed by Rule 14 of the Rules of Court
and by the following rules:
(a) Where the respondent cannot be located at his given address or his whereabouts are
unknown and cannot be ascertained by diligent inquiry, service of summons may, by leave of
court, be effected upon him by publication once a week for two consecutive weeks in a
newspaper of general circulation in the Philippines and in such place as the court may order. In
addition, a copy of the summons shall be served on respondent at his last known address by
registered mail or by any other means the court may deem sufficient.
(b) The summons to be published shall be contained in an order of the court with the following
data; (1) title of the case; (2) docket number; (3) nature of the petition; (4) principal grounds of
the petition and the reliefs prayed for, and (5) a directive for respondent to answer within thirty
days from the last issue of publication.
Sec. 4. Motion to Dismiss. - No motion to dismiss the petition shall be allowed except on the
ground of lack of jurisdiction over the subject matter or over the parties; provided, however, that
any other ground that might warrant a dismissal of the case may be raised as an affirmative
defense in an answer.
Sec. 5. Answer. - (a) The respondent shall file his answer within fifteen days from receipt of
summons, or within thirty days from the last issue of publication in case of service of summons
by publication. The answer must be verified by respondent himself and not by counsel or
attorney-in-fact.
(b) If the respondent fails to file an answer, the court shall not declare him in default.
(c) Where no answer is filed/or if the answer does not tender an issue the court shall order the
public prosecutor to investigate whether collusion exists between the parties.
Sec. 6. Investigation Report of Public Prosecutor. - (a) Within one one month after receipt of the
court order mentioned in paragraph (c) of the preceding section, the public prosecutor shall
submit a report to the court on whether the parties are in collusion and serve copies on the
parties and their respective counsels, if any.
(b) If the public prosecutor finds that collusion exists, he shall state the basis thereof in his
report. The parties shall file their respective comments on the finding of collusion within ten days
from receipt of copy of the report. The court shall set the report for hearing and if convinced that
parties are in collusion, it shall dismiss the petition.
(c) If the public prosecutor reports that no collusion exists, the court shall set the case for pretrial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial.
Sec. 7. Social Worker. - The court may require a social worker to conduct a case study and to
submit the corresponding report at least three days before the pre-trial. The court may also
require a case study at any stage of the case whenever necessary,
Sec. 8. Pre-trial. (a) Pre-trial mandatory.- A pre-trial is mandatory. On motion or motu proprio, the court shall set
the pre-trial after the last pleading has been served and filed, or upon receipt of the report of the
public prosecutor that no collusion exists between the parties on a date not earlier than six
months from date of the filing of the petition.
(b) Notice of Pre-trial.- (1) The notice of pre-trial shall contain:
(a) the date of pre-trial conference; and
(b) an order directing the parties to file and serve their respective pre-trial briefs in such manner
as shall ensure the receipt thereof by the adverse party at least three days before the date of
pre-trial.
(2) The notice shall be served separately on the parties and their respective counsels as well as
on the public prosecutor. It shall be their duty to appear personally at the pre-trial.
(3) Notice of pre-trial shall be sent to the respondent even if he fails to file an answer. In case of
summons by publication and the respondent failed to file his answer, notice of pre-trial shall be
sent to respondent at his last known address.
Sec. 9. Contents of pre-trial brief. - The pre-trial brief shall contain the following:
(1) A statement of the willingness of the parties to enter into agreements as may be allowed by
law, indicating the desired terms thereof;
(2) A concise statement of their respective claims together with the applicable laws and
authorities;
(3) Admitted facts and proposed stipulations of facts, as well as the disputed factual and legal
issues;
(4) All the evidence to be presented, including expert opinion, if any, briefly stating or describing
the nature and purpose thereof;
(5) The number and names of the witnesses and their respective affidavits; and
(6) Such other matters as the court may require.
Failure to file the pre-trial brief or to comply with its required contents shall have the same effect
as failure to appear at the pre-trial under the succeeding section.
Sec. 10. Effect of failure to appear at the pre-trial. - (1) If the petitioner fails to appear personally,
the case shall be dismissed unless his counsel or a duly authorized representative appears in
court and proves a valid excuse for the non-appearance of the petitioner.
(2) If the respondent filed his answer but fails to appear, the court shall proceed with the pre-trial
and require the public prosecutor to investigate the non-appearance of the respondent and
submit within fifteen days a report to the court stating whether his non-appearance is due to any
collusion between the parties/ If there is no collusion the court shall require the public prosecutor
to intervene for the State during the trial on the merits to prevent suppression or fabrication of
evidence.
Sec. 11. Pre-trial conference. - At the pre-trial conference, the court may refer the issues to a
mediator who shall assist the parties in reaching an agreement on matters not prohibited by law.
The mediator shall render a report within one month from referral which, for good reasons, the
court may extend for a period not exceeding one month.

In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial
conference, on which occasion it shall consider the advisability of receiving expert testimony and
such other matters as may aid in the prompt disposition of the petition.
Sec. 12. Pre-trial order. - (a) The proceedings in the pre-trial shall be recorded. Upon termination
of the pre-trial, the court shall issue a pre-trial order which shall recite in detail the matters taken
up in the conference, the action taken thereon, the amendments allowed on the pleadings, and,
except as to the ground of legal separation, the agreements or admissions made by the parties
on any of the matters considered, including any provisional order that may be necessary or
agreed upon by the parties.
(b) Should the action proceed to trial, the order shall contain a recital of the following:
(1) Facts undisputed, admitted, and those which need not be proved subject to Section 13 of
this Rule;
(2) Factual and legal issues to be litigated;
(3) Evidence, including objects and documents, that have been marked and will be presented;
(4) Names of witnesses who will be presented and their testimonies in the form of affidavits; and
(5) Schedule of the presentation of evidence.
The pre-trial order shall also contain a directive to the public prosecutor to appear for the State
and take steps to prevent collusion between the parties at any stage of the proceedings and
fabrication or suppression of evidence during the trial on the merits.
(c) The parties shall not be allowed to raise issues or present witnesses and evidence other than
those stated in the pre-trial order. The order shall control the trial of the case unless modified by
the court to prevent manifest injustice.
(d) The parties shall have five days from receipt of the pre-trial order to propose corrections or
modifications.
Sec. 13. Prohibited compromise. - The court shall not allow compromise on prohibited matters,
such as the following:
(1) The civil status of persons;
(2) The validity of a marriage or of a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts; and
(6) Future legitime.
Sec. 14. Trial. - (a) The presiding judge shall personally conduct the trial of the case. No
delegation of the reception of evidence to a commissioner shall be allowed except as to matters
involving property relations of the spouses.
(b) The grounds for legal separation must be proved. No judgment on the pleadings, summary
judgment, or confession of judgment shall be allowed.
(c) The court may order the exclusion from the courtroom of all persons, including members of
the press, who do not have a direct interest in the case. Such an order may be made if the court
determines on the record that requiring a party to testify in open court would not enhance the
ascertainment of truth; would cause to the party psychological harm or inability to effectively
communicate due to embarrassment, fear, or timidity; would violate the party's right to privacy;
or would be offensive to decency
(d) No copy shall be taken nor any examination or perusal of the records of the case or parts
thereof be made by any person other than a party or counsel of a party, except by order of the
court.
Sec. 15. Memoranda. - The court may require the parties and the public prosecutor to file their
respective memoranda in support of their claims within fifteen days from the date the trial is
terminated. No other pleadings or papers may be submitted without leave of court. After the
lapse of the period herein provided, the case will be considered submitted for decision, with or
without the memoranda.
Sec. 16. Decision. - (a) The court shall deny the petition on any of the following grounds:
(1) The aggrieved party has condoned the offense or act complained of or has consented to the
commission of the offense or act complained of;
(2) There is connivance in the commission of the offense - or act constituting the ground for
legal separation;
(3) Both parties have given ground for legal separation;
(4) There is collusion between the parties to obtain the decree of legal separation; or
(5) The action is barred by prescription.
(b) If the court renders a decision granting the petition, it shall declare therein that the Decree of
Legal Separation shall be issued by the court only after full compliance with liquidation under the
Family Code.
However, in the absence of any property of the parties, the court shall forthwith issue a Decree
of Legal Separation which shall be registered in the Civil Registry where the marriage was
recorded and in the Civil Registry where the Family Court granting the legal separation is
located.
(c) The decision shall likewise declare that:
(1) The spouses are entitled to live separately from each other but the marriage bond is not
severed;
(2) The obligation of mutual support between the spouses ceases; and
(3) The offending spouse is disqualified from inheriting from the innocent spouse by intestate
succession, and provisions in favor of the offending spouse made in the will of the innocent
spouse are revoked by operation of law.
(d) The parties, including the Solicitor General and the public prosecutor, shall be served with
copies of the decision personally or by registered mail. If the respondent summoned by
publication failed to appear in the action, the dispositive part of the decision shall also be
published once in a newspaper of general circulation.
Sec. 17. Appeal. (a) Pre-condition. - No appeal from the decision shall be allowed unless the appellant has filed a
motion for reconsideration or new trial within fifteen days from notice of judgment.

(b) Notice of Appeal - An aggrieved party or the Solicitor General may appeal from the decision
by filing a Notice of Appeal within fifteen days from notice of denial of the motion for
reconsideration or new trial. The appellant shall serve a copy of the notice of appeal upon the
adverse parties.
Sec. 18. Liquidation, partition and distribution, custody, and support of minor children. - Upon
entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of
judgment of the appellate court granting the petition, the Family Court, on motion of either party,
shall proceed with the liquidation, partition and distribution of the properties of the spouses,
including custody and support of common children, under the Family Code unless such matters
had been adjudicated in previous judicial proceedings.
Sec. 19. Issuance of Decree of Legal Separation. - (a) The court shall issue the Decree of Legal
Separation after:
(1) registration of the entry of judgment granting the petition for legal separation in the Civil
Registry where the marriage was celebrated and in the Civil Registry where the Family Court is
located; and
(2) registration of the approved partition and distribution of the properties of the spouses, in the
proper Register of Deeds where the real properties are located.
(b) The court shall quote in the Decree the dispositive portion of the judgment entered and
attach to the Decree the approved deed of partition.
Sec. 20. Registration and publication of the Decree of Legal Separation; decree as best
evidence. (a) Registration of decree. - The prevailing party shall cause the registration of the Decree in the
Civil Registry where the marriage was registered, in the Civil Registry of the place where the
Family Court is situated, and in the National Census and Statistics Office. He shall report to the
court compliance with this requirement within thirty days iron receipt of the copy of the Decree.
(b) Publication of decree.-- In case service of summons was made by publication, the parties
shall cause the publication of the Decree once in a newspaper of general circulation.
(c) Best evidence. - The registered Decree shall be the best evidence to prove the legal
separation of the parties and shall serve as notice to third persons concerning the properties of
petitioner and respondent.
Sec. 21. Effect of death of a party; duty of the Family Court or Appellate Court. - (a) In case a
party dies at any stage of me proceedings before the entry of judgment, the court shall order the
case closed and terminated without prejudice to the settlement of estate proper proceedings in
the regular courts.
(b) If the party dies after the entry of judgment, the same shall be binding upon the parties and
their successors in interest in the settlement of the estate in the regular courts.
Sec. 22. Petition for revocation of donations. - (a) Within five (5) years from the date the decision
granting the petition for legal separation has become final, the innocent spouse may file a
petition under oath the same proceeding for legal separation to revoke the donations in favor of
the offending spouse.
(b) The revocation of the donations shall be recorded in the Register of Deeds of Deeds in the
places where the properties are located.
(c) Alienations, liens, and encumbrances registered in good faith. before the recording of the
petition for revocation in the registries of property shall be respected.
(d) After the issuance of the Decree of Legal Separation, the innocent spouse may revoke the
designation of the offending spouse as a beneficiary in any insurance policy even if such
designation be stipulated as irrevocable. The revocation or change shall take effect upon written
notification thereof to the insurer.
Sec. 23. Decree of Reconciliation. - (a) If the spouses had reconciled, a joint manifestation
under oath, duly signed by the spouses, may be filed in the same proceeding for legal
separation.
(b) If the reconciliation occurred while the proceeding for legal separation is pending, the court
shall immediately issue an order terminating the proceeding.
(c) If the reconciliation occurred after the rendition of the judgment granting the petition for legal
separation but before the issuance of the Decree, the spouses shall express in their
manifestation whether or not they agree to revive the former regime of their property relations or
choose a new regime.
The court shall immediately issue a Decree of Reconciliation declaring that the legal separation
proceeding is set aside and specifying the regime of property relations under which the spouses
shall be covered.
(d) If the spouses reconciled after the issuance of the Decree, the court, upon proper motion,
shall issue a decree of reconciliation declaring therein that the Decree is set aside but the
separation of property and any forfeiture of the share of the guilty spouse already effected
subsists, unless the spouses have agreed to revive their former regime of property relations or
adopt a new regime.
(e) In case of paragraphs (b), (c), and (d). if the reconciled spouses choose to adopt a regime of
property relations different from that which they had prior to the filing of the petition for legal
separation, the spouses shall comply with Section 24 hereof.
(f) The decree of reconciliation shall be recorded in the Civil Registries where the marriage and
the Decree had been registered.
Sec. 24. Revival of property regime or adoption of another. (a) In case of reconciliation under Section 23, paragraph (c) above, the parties shall file a
verified motion for revival of regime of property relations or the adoption of another regime of
property relations in the same proceeding for legal separation attaching to said motion their
agreement for the approval of the court.
(b) The agreement which shall be verified shall specify the following:
(1) The properties to be contributed to the restored or new regime;
(2) Those to be retained as separate properties of each spouse; and
(3) The names of all their known creditors, their addresses, and the amounts owing to each.
(c) The creditors shall be furnished with copies of the motion and the agreement.
(d) The court shall require the spouses to cause the publication of their verified motion for two
consecutive weeks in a newspaper of general circulation.

(e) After due hearing, and the court decides to grant the motion, it shall issue an order directing
the parties to record the order in the proper registries of property within thirty days from receipt
of a copy of the order and submit proof of compliance within the same period.
Sec. 25. Effectivity. - This Rule shall take effect on March 15,2003 following its publication in a
newspaper of general circulation not later than March 7, 2003.