WARNING: Too long for case

digest. Too short for full text.

HAHA!

upon Doe on repeated occasions.

The sexual contact occurred in
several
places
including
the
monastery and surrounding areas.
Doe alleged various causes of
action against the Holy See: (1)
for vicarious liability based on the
actions
of
the
Holy
See's
instrumentalities,
the
Archdiocese, the Chicago Bishop,
and the Order; (2) for respondeat
superior liability based on the
actions
of
the
Holy
See's
employee, Father Andrew Ronan;
and (3) for direct liability for the
Holy
See's
own
negligent
retention
and
supervision
of
Ronan and its negligent failure to
warn Doe of Ronan's dangerous
proclivities.

Doe vs Holy See

Facts:
Doe describes as follows Father
Andrew Ronan's alleged sexual abuse
of young boys: In 1955 or 1956, while
employed as a parish priest in the
Archdiocese of Armagh, Ireland, Father
Ronan molested a minor and admitted
to doing so. Ronan was later
removed from Our Lady of Benburb
and placed in the employ of the
Chicago Bishop, at St. Philip's High
School. At St. Philip's, Ronan
molested at least 3 male students.
Confronted with allegations of abuse,
Ronan admitted to molesting the
boys. The Chicago Bishop, acting in
accordance
with
the
policies,
practices, and procedures of the
Holy See, did not discipline or
remove Ronan from his post.

The Holy See contended in the district

court that all of Doe's causes of action
against it must be dismissed because,
as a foreign sovereign, it is immune
from suit in U.S. courts. Defendant
Holy
See
is
the
ecclesiastical,
governmental,
and
administrative
capital of the Roman Catholic Church.
It is the composite of the authority,
jurisdiction, and sovereignty vested in
the Pope and his delegated advisors
to direct the world-wide Roman
Catholic Church. Holy See has
unqualified power over the Catholic
Church including each and every
individual and section of the [C]hurch.
Defendant Holy See directs,
supervises, supports, promotes[,] and
engages in providing religious and
pastoral guidance, education[,] and
counseling
services
to
Roman
Catholics world-wide in exchange for
all or a portion of the revenues
derived from its members for these
services. The Holy See engages in
these activities through its agents,

John V. Doe brought suit in the United

States District Court for the District of
Oregon against the Holy See, the
Archdiocese of Portland, Oregon
(Archdiocese), the Catholic Bishop of
Chicago (Chicago Bishop), and the
Order of the Friar Servants (Order),
alleging that when he was 15 or 16 y.
old he was sexually abused by Father
Ronan, a priest in the Archdiocese and
a member of the Order. In 1965 Doe
met Ronan at St. Albert's and came to
know Ronan as his priest, counselor
and spiritual adviser. Doe was a
devout Roman Catholic, and for him
Ronan was a person of great
influence and persuasion as a holy
man and authority figure. Using his
position of trust and authority, Ronan
engaged in harmful sexual contact
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cardinals,
bishops[,]
and
clergy,
including religious order priests,
brothers[,] and sisters, who engage in
pastoral work under the authority of
its bishop[s]. It is supported through
the contributions of the faithful[,]
which are received through donations
from the dioceses around the world,
including those in the United States.
Defendant Holy See promotes and
safeguards the morals and standards
of conduct of the clergy of the
[C]atholic [C]hurch. Defendant Holy
See does this by and through its
agents
and
instrumentalities,
including the Congregation for the
Clergy and the Congregation for
Religious both delegated by the Pope
and acting on his behalf. It creates,
divides[,] and re-aligns dioceses,
archdioceses[,]
and
ecclesiastical
provinces. It also gives final approval
to
the
creation,
division[,]
or
suppression of provinces of religious
orders It creates, appoints, assigns
and re-assigns bishops [and] superiors
of religious orders, and through the
bishops and superiors of religious
orders [it] has the power to directly
assign and remove individual clergy.
All bishops, clergy, and priests,
including religious order priests, vow
to show respect and obedience to the
Pope and their bishop. It also
examines and is responsible for the
work and discipline and all those
things
which
concern
bishops,
superiors of religious orders, priests[,]
and deacons of the religious clergy.
In furtherance of this duty, Defendant
Holy See requires bishops to file a
report, on a regular basis, outlining
the status of, and any problems with,
clergy.

Defendant
Holy
See
promulgates and enforces the laws
and
regulations
regarding
the
education, training[,] and standards of

conduct and discipline for its members

and
those
who
serve
in
the
governmental, administrative, judicial,
educational[,] and pastoral workings
of the Catholic [C]hurch world-wide.
Defendant Holy See is also
directly responsible for removing
superiors of religious orders,
bishops, archbishops[,] and cardinals
from service and/or making them
ineligible for positions of leadership in
the various divisions and offices of the
Catholic [C]hurch.
The Archdiocese, according to the
amendment
complaint,
is
a
corporation incorporated under
the laws of the state of Oregon
and is therefore a citizen of that state.
It provided pastoral services to
[Doe] and his immediate family
through its parishes. The Chicago
Bishop is incorporated under the
laws of the state of Illinois and is
a citizen of that state. Finally, the
Order is a citizen of the state of
Illinois,
but
it
operates
worldwide. It is under the ultimate
authority of the Holy See.
Doe alleged that the Archdiocese and
the Order were vicariously liable
forRonan's abuse of Doe, and that the
Chicago Bishop and the Order were
negligent in failing to warn the
Archdiocese and Doe of Ronan's
propensities. Doe also alleged that
the Holy See was vicariously liable for
Ronan's abuse of Doe and for the
negligent actions of the Archdiocese,
the Order, and the Chicago Bishop,
and that the Holy See was itself
negligent
in
its
retention
and
supervision of Ronan and in failing to
warn of his propensities.

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The district court disagreed with

the archdiocese, holding that it has
jurisdiction over all but one of Doe's
claims under the Foreign Sovereign
Immunities
Act's
tortious
act
exception to sovereign immunity. The
district
court held
that
the
commercial
activity
exception
does not apply to permit the
exercise of jurisdiction over Doe's
claims; the court did not view the
Holy
See's
activities
as
commercial because the true
essence of the complaint clearly
sound[s] in tort. In contrast,
the district court held that the
tortious act exception does apply,
permitting
it
to
exercise
jurisdiction over all Doe's claims
except for the fraud claim. The
district court therefore granted the
Holy See's motion to dismiss as to the
fraud claim, but it denied the motion
as to all of Doe's other claims.

instrumentalities, so the negligent acts

of those entities cannot be attributed
to the Holy See for jurisdictional
purposes. Doe's vicarious liability
claims therefore cannot go forward as
pleaded. As to the Holy See's
respondeat
superior
liability
for
Ronan's acts, we conclude that,
because Doe has sufficiently alleged
that Ronan was an employee of the
Holy See acting within the scope of
his employment under Oregon law,
Ronan's acts can be attributed to the
Holy See for jurisdictional purposes.
Further, we agree with the district
court that Ronan's acts come within
the FSIA's tortious act exception,
so the Holy See is not immune
from suit for the respondeat
superior
cause
of
action.

Although the district court held that

Doe's negligence claims against the
Holy See could proceed under the
FSIA's tortious act exception, we
conclude that they cannot, because
the FSIA preserves immunity for
discretionary acts. However, we do
not have jurisdiction to consider the
cross-appeal as to the commercial
activity exception at this time. The
decision of the district court on the
appeal by the Holy See is therefore
affirmed in part, reversed in part, and
remanded for further proceedings not
inconsistent with this opinion. We
dismiss the cross-appeal.

The Holy See appeals on the

decision of district court that the
tortious act exception applies.
Doe cross-appeals the district
court's dismissal of his fraud
claim,
contending
that
the
commercial
activity
exception
permits federal court jurisdiction
over that cause of action.
Issue: Whether
Holy
immune from suit?

see

is

Held: US Supreme Court affirm the

district court in part and reverse
in part as to the Holy See's
appeal. As to the Holy See's
vicarious liability for the acts of the
Archdiocese, the Chicago Bishop, and
the Order, we conclude that Doe has
not
alleged
facts
sufficient
to
overcome the presumption of separate
juridical status for governmental

Discussion:
US
generally
granted
foreign
sovereigns complete immunity from
suit in the courts of this country.
However,
in
1952,
the
State
Department
adopted
a
more
restrictive theory of foreign
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sovereign immunity, under which

sovereign immunity is confined
to suits involving the foreign
sovereign's PUBLIC ACTS

Section 16052 contains [g]eneral

exceptions to the jurisdictional
immunity of a foreign state,
providing in relevant part that:

Applying this restrictive approach,

questions
of
foreign
sovereign
immunity arising in U.S. courts were
decided on a case-by-case basis, often
with the assistance of letters from the

(a)A foreign state shall not be

immune from the jurisdiction of courts
of the United States or of the States in
any case-
(2)in which the action is based
upon a commercial activity carried
on in the United States by the foreign
state; or upon an act performed in the
United States in connection with a
commercial activity of the foreign
state elsewhere; or upon an act
outside the territory of the United
States in connection with a

State
Department
containing
suggestions of immunity.
In 1976, to clarify the governing
standards and to insulate the issue of
sovereign immunity from the impact of
case-by-case diplomatic pressures,
Congress enacted the FSIA. The FSIA
contains a comprehensive set of legal
standards
governing
claims
of
immunity in every civil action against
a foreign state or its political
subdivisions,
agencies,
or
instrumentalities.

commercial activity of the foreign

state elsewhere and that act causes a
direct effect in the United States;
(5)not otherwise encompassed in
paragraph (2) above, in which money
damages are sought against a foreign
state for personal injury or death, or
damage to or loss of property,
occurring in the United States and
caused by the tortious act of that
foreign state or of any official or
employee of that foreign state while
acting within the scope of his office or
employment; except this paragraph
shall not apply to-(A)any claim based
upon the exercise or performance or
the failure to exercise or perform a
discretionary function regardless of
whether the discretion be abused, or

Under the FSIA, a foreign state is

immune from the jurisdiction of the
courts of the United States and of the
States unless one of the statute's
enumerated exceptions applies. A
foreign state includes a political
subdivision of a foreign state or
an agency or instrumentality of a
foreign state.
An agency or instrumentality of a
foreign state is defined in turn as any
entity:
(1)which is a separate legal person,
corporate or otherwise, and

(B)any claim arising out of malicious

prosecution, abuse of process, libel,
slander, misrepresentation, deceit, or
interference with contract rights

(2)which is an organ of a foreign state

or political subdivision thereof, and
(3)which is neither a citizen of a State
of the United States nor created
under the laws of any third country.

The statute further defines the

elements
of
the
commercial
activity exception: Acommercial
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activity means either a regular course

of commercial conduct or a particular
commercial transaction or act. The
commercial character of an activity
shall be determined by reference
to the nature of the course of
conduct or particular transaction
or act, rather than by reference to
its purpose.

unsound to expand review into the

area of immunity grants when an
appeal is taken from a denial of
immunity.
On this appeal we are presented with
comparatively
straightforward
questions about the relationship
between the Holy See and local priests
under the tort exception. But the
cross-appeal seeks to expand our
inquiry into the arcane question of
whether
church
functions
are
commercial activity because churches
receive financial support from their
parishioners, or otherwise. That is an
issue that actually has nothing to do
with the issues on interlocutory
appeal.

A commercial activity carried on in

the United States by a foreign state
means commercial activity carried on
by such state and having substantial
contact with the United States.
The statute does not set out any
substantive rules of liability, but
instead provides that, [a]s to any
claim for relief with respect to
which a foreign state is not
entitled to immunity under the
statute, the foreign state shall
be liable in the same manner and
to the same extent as a private
individual
under
like
circumstances.

To say it another way, it is well

established
that,
although
an
interlocutory appeal can be taken
whenever immunity (absolute or
qualified) is denied to a person or
entity claiming entitlement thereto, an
expansion to other issues is not
usually allowed.

Here, the tort causes of action are not

inextricably intertwined with Doe's
other (fraud, commercial activity)
claims. Thus, that concept is not
sufficient to allow Doe to appeal the
district court's grant of immunity as
far as that exception is concerned. Nor
do we agree that we ought to simply
take up the commercial activity issue
on the basis that it is no more than an
alternate ground to uphold the district
court. In fact, the need for review of
immunity
denials-avoiding
the
undermining of the purpose of the
grant of immunity -has no weight
where immunity has been granted.
Were there any doubt about that, the
sensitive nature of the issues dealing
with sovereigns would convince us
that it would generally be prudentially

Before turning to the question of

which, if any, of the FSIA's
exceptions to immunity apply, we
must determine which of the acts
alleged in the complaint may
legitimately be attributed to the
Holy
See
for
purposes
of
establishing jurisdiction. Doe's
complaint alleges tortious acts by the
Archdiocese, the Order, and the
Bishop, all alleged to be corporations
created by the Holy See. The Holy See
argues that we may not consider
these alleged acts by the Archdiocese,
the Order, and the Bishop when
determining whether jurisdiction exists
over the Holy See, because Doe has
not alleged facts that would overcome
the presumption of separate juridical
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status such that the acts of the latter

could be attributed to the former.For
the reasons explained below, given
the allegations that Doe has pleaded,
we agree with the Holy See. In
addition, however, the complaint
alleges a number of actions performed
by the Holy See itself, such as
creat[ing]
dioceses
and
archdioceses, giv[ing] final approval
to the creation, division or suppression
of provinces of religious orders,
employ[ing] Ronan, and plac[ing]
Ronan in the Archdiocese in Portland,
Oregon. We conclude below that
these acts do establish jurisdiction
over the Holy See for the claims to
which the acts are relevant.
Determining
Relationship
Holy
See
Corporations
Establishing
Holy See

in
substantial
uncertainty
over
whether an instrumentality's assets
would be diverted to satisfy a claim
against the sovereign, and might
frustrate the efforts of sovereign
nations
to
structure
their
governmental activities in a manner
deemed
necessary
to
promote
economic development and efficient
administration.
Applying Bancec's presumption-as
well as the standard for overcoming
that presumption-at the outset of a
suit as well as at the merits phase
makes good sense. With these
considerations in mind, we conclude
that it is appropriate to use the
Bancec standard to determine whether
Doe's allegations are sufficient to
permit jurisdiction over the Holy See
based on acts committed by its
affiliated domestic corporations.

Whether an Agency
Exists Between the
and
Its
Domestic
for Purposes of
Jurisdiction overthe

b.Applying the Bancec standard

to Doe's complaint

a.The Bancec standard

Applying the rule of Bancec to the

allegations in Doe's complaint, court
concluded that Doe has not alleged
sufficient facts to overcome the
presumption of separate juridical
status. Facts
were insufficient to
overcome the presumption of separate
juridical
status,
because
the
government's involvement [did not]
rise to a [sufficiently] high [] level,
and in particular, did not involve dayto-day control.

Bancec provides a workable standard

for deciding whether a particular
individual or corporation is an agent of
a foreign state.. Applying Bancec's
presumption in favor of separate
juridical status for foreign state
instrumentalities at the jurisdiction
phase, not just at the liability phase, is
consistent with the FSIA's broad policy
goals. In Bancec, the Court discussed
at length the comity considerations at
play when entertaining suits against
foreign government instrumentalities
in U.S. courts.
As at the merits phase, failing to
recognize the

Doe's complaint does not allege

day-to-day, routine involvement of
the Holy See in the affairs of the
Archdiocese, the Order, and the
Bishop. Instead, it

presumption of separate juridical

status at the jurisdictional phase could
result

alleges that the Holy See creates,

divides[,] and re-aligns dioceses,
archdioceses
and
ecclesiastical
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provinces and gives final approval to

the creation, division or suppression of
provinces of religious orders. Doe
also alleges that the Holy See
promulgates and enforces the laws
and
regulations
regarding
the
education, training[,] and standards of
conduct and discipline for its members
and
those
who
serve
in
the
governmental, administrative, judicial,
educational[,] and pastoral workings of
the Catholic [C]hurch world-wide.
These factual allegations-that the Holy
See participated in creating the
corporations
and
continues
to
promulgate laws and regulations that
apply to them-are quite similar to the
facts in Flatow, and are, as in Flatow,
insufficient
to
overcome
the
presumption of separate juridical
status.

But Doe has not alleged that the

Holy See has inappropriately used the
separate status of the corporations to
its own benefit, as in Bancec, or that
the Holy See created the corporations
for the purpose of evading liability for
its own wrongs. Rather, in ruling for
Doe on this point, the district court
seemed to be influenced by the
complaint's allegations of wrongful
acts perpetrated directly by the Holy
See.
Doe's vicarious liability claim for
the actions of the Archdiocese,
Chicago Bishop, and Order is based
entirely on an allegation that the
actions of the domestic corporations
are attributable to the Holy See. Doe
has therefore not alleged sufficient
facts to demonstrate that any
exception to sovereign immunity
applies to that cause of action. We
therefore
conclude
that
the
district court lacked jurisdiction
over the Holy See for the tortious
acts allegedly committed by the
Archdiocese, the Chicago Bishop,
and the Order.

Doe does directly allege in his

complaint that the corporations are
agents of the Holy See. In this
context, however, the term agent is
not self-explanatory. Agent can have
more than one legal meaning: the
standard for determining that a
natural person is the agent of another
differs
from
the
standard
for
attribution of the actions of a
corporation to another entity.

Doe has also alleged respondeat

superior liability against the Holy
See for Ronan's actions as an
alleged employee of the Holy See.
We turn now to those allegations,
considering whether they are
sufficient to support jurisdiction
over the Holy See.

The Bancec standard is in fact most

similar to the alter ego or piercing
the corporate veil standards applied
in many state courts to determine
whether the actions of a corporation
are attributable to its owners.

D.Tortious Act Exception

The district court held that all of Doe's
claims, except the one for fraud, come
within the exception to immunity for a
tortious act or omission of [a] foreign
state or of any official or employee of
that foreign state while acting within
the scope of his or her employment.

The district court apparently

found
jurisdiction
proper
by
relying on the second, equitable
prong of Bancec, noting that foreign
states cannot avoid their obligations
to third parties by engaging in abuses
of the corporate form.
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Doe's respondeat superior claim based

on Ronan's actions comes within the
tortious act exception. Doe has
clearly alleged that Ronan was an
employee of the Holy See, acting
within the scope of his employment,
when he molested Doe. We conclude,
however, that Doe's claims against the
Holy See for negligent retention and
supervision and failure to warn cannot
be brought under the tort exception
because they are barred by the FSIA's
exclusion for discretionary functions,
1.Respondeat superior
Ronan's tortious acts

for

provision of the tortious activity

exception essentially requires a finding
that the doctrine of respondeat
superior applies to the tortious acts of
individuals.
in a respondeat superior action,
an employer can be liable for
intentional
as
well
as
unintentional
torts
of
an
employee if committed within
the scope of employment. Id.
Generally, under Oregon law,
three requirements must be met
to demonstrate that an employee
was acting within the course and
scope of employment:

Father

a.The meaning of employee

(1)the act must have occurred

substantially within the time and
space limits

In his complaint, Doe alleges that

the Holy See employed priests,
including one Father Andrew Ronan
and that Ronan was under the direct
supervision and control of the Holy
See. The Holy See was further
responsible
for
the
work
and
discipline [of] priests. According to
the complaint, the Holy See on at least
one occasion was responsible for
controlling where Ronan performed his
functions: the Holy See placed Ronan
in [the] Archdiocese at St. Albert's
Church in Portland, Oregon. The Holy
See maintains that Doe has not
alleged sufficient facts to demonstrate
that Ronan was an employee of the
Holy See for purposes of the tortious
act exception, because the word
employee is a legal conclusion we
are not required to accept as true.

authorized by the employment;

(2)the employee must have been
motivated, at least partially, by a
purpose to
serve the employer; and
(3)the act must have been of a
kind which the employee was
hired to perform.
The complaint satisfied all three
requirements for establishing that
employee conduct was within the
scope of employment. ( sexual acts
were committed during pastoral
service )
#2 Element
Doe's allegations meet this standard.
Doe has asserted that he came to
know Ronan as his priest, counselor
and spiritual adviser, and that Ronan
used his position of authority to
engage in harmful sexual contact
upon Doe in several places including

b.The meaning of within the scope

of employment
More complicated under Oregon law is
the question of whether Ronan's
actions were within the scope of
employment as the FSIA indicated
that the scope of employment
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the monastery and surrounding areas

in Portland, Oregon. His allegations
are thus very similar to those in
Fearing.

Claims Act (FTCA), so court look to

case
law
on
the
FTCA
when
interpreting the FSIA's discretionary
function exclusion.

Under Oregon law, then, Doe has

clearly alleged sufficient facts to show
that his claim is based on an injury
caused by an employee of the
foreign state while acting within the
scope of his employment, as
required to come within the FSIA's
tortious act exception. The Holy See
is therefore not immune from Doe's
respondeat superior claim.

( Gaubert criterion) Extrapolating

from FTCA case law, the Holy See
is protected by the discretionary
function
exclusion
if
the
challenged
action
meets
two
criteria: (1) it is discretionary in
nature or involve[s] an element of
judgment or choice and (2) the
judgment is of the kind that the
discretionary function exception was
designed to shield.

2.Negligent
retention,
supervision, and failure to warn

Doe
refers
vaguely
in
his
complaint to the Holy See's
policies,
practices,
and
procedures of not firing priests
for, and not warning others about,
their abusive acts. He also refers
in
his
brief
to
a
policy
promulgated by the Holy See to
cover
up
incidents
of
child
abuse, which he argues removed
an[y] element of judgment or
choice from the Holy See's
actions to the extent that
Appellants were acting pursuant
to it. Yet nowhere does Doe
allege the existence of a policy
that is specific and mandatory
on the Holy See.

According to Doe's complaint, the Holy

See negligently retained Ronan and
failed to warn those coming into
contact with him, even though it
knew or should have known that
Ronan had a history of sexually
abusing children. The Holy See also
failed
to
provide
reasonable
supervision of Ronan. Whether or
not this alleged negligence otherwise
comes within the language of the
FSIA's
tortious
act
exception-a
question we do not decide-these
causes of action may not go forward
under that section because they are
barred
by
the
exclusion
for
discretionary functions. The district
court
thus
erred
in
exercising
jurisdiction over these claims. The
discretionary
function
exclusion
shields foreign sovereigns from tort
claims based upon the exercise or
performance or the failure to exercise
or perform a discretionary function
regardless of whether the discretion
be abused. . The language of the
discretionary
function
exclusion
closely parallels the language of a
similar exclusion in the Federal Tort

He does not state the terms of this

alleged policy, or describe any
documents, promulgations, or orders
embodying it. Nor does the
complaint in any other way allege that
the Holy See's decisions to retain Doe
and not warn about his proclivities
involved no element of judgment,
choice, or discretion. While the
burden of proving the Gaubert

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factors
ultimately
falls
on
the
sovereign
entity
asserting
the
discretionary function exception, a
plaintiff must advance a claim that is
facially outside the discretionary
function exception in order to survive
a motion to dismiss.

warn his parishioners because it felt

that to do otherwise would have
harmed
the
Church's
reputation
locally, or because it felt that pastoral
stability was sufficiently important for
the
parishioners'
well-being,
or
because low ordination rates or
staffing shortages made it necessary
to keep Ronan on. That such social,
economic,
or
political
policy
considerations could have influenced
the decision renders it the kind of
judgment
that
the
discretionary
function exception was designed to
shield.

As to the second Gaubert criterion, the

decision of whether and how to retain
and supervise an employee, as well as
whether to warn about his dangerous
proclivities,
are
the
type
of
discretionary judgments that the
exclusion was designed to protect.
We
have
held
the
hiring,
supervision,
and
training
of
employees to be discretionary
acts.

In sum, the tortious act exception

does not provide jurisdiction over
Doe's
negligent
hiring,
supervision, and failure to warn
claims because they are barred by
the
discretionary
function
exclusion.The Court, therefore
cannot affirm the district court's
judgment on this ground.

Moreover, failure to warn about

an individual's dangerousness is
discretionary. (e.i failure to warn
individuals on Air Force Base about
potentially dangerous serviceman was
a discretionary function, because it
brought into play sensitive and
competing policy considerations of
protecting safety while preserving
resources
and
preventing
unwarranted alarm)

CONCLUSION
After careful consideration, US SC
have reached the conclusion that
most of Doe's causes of action are
not covered by the tort exception
and overturn the district court's
denial of immunity as to those.
However, because it would be
improper
to
consider
the
commercial activity exception, we
express no opinion regarding that
exception.

The Holy See's failure to present any

evidence that its actions were actually
based on policy considerations is not
relevant to whether the discretionary
function exception applies. A foreign
state's decision need not actually be
grounded in policy considerations so
long as it is, by its nature [,]
susceptible to a policy analysis.

The decision of the district court

is AFFIRMED in part, REVERSED in
part, and REMANDED.

A policy analysis is one that

implements political, social, and
economic judgments.

UNC Lear Services vs. Kingdom of

Saudi Arabia

In the case of Father Ronan's

alleged abuse, the Holy See might
have decided to retain him and not to

Facts:

10 L

The Kingdom maintains a fleet of F-5

aircraft as part of its air defense
systems. It purchased these aircraft
from the United States under the
Peace Hawk Foreign Military Sales
Program.

could replenish the LOC. Lear in turn

was required to provide a performance
bond to the Kingdom, also in the form
of an LOC, equal to 5% of the contract
value, or $1.2 million.
In 1996, the Kingdom awarded Lear a
service contract, the F-5 Technical
Support Program contract ("TSP").
Under the TSP, Lear sent hundreds of
personnel to Saudi Arabia to provide
training and support services to the
Royal Saudi Air Force ("RSAF"). These
employees were integrated with RSAF
personnel, and provided training and
support.They worked directly for and
under the control of the RSAF. Lear
employees
were
responsible
for
developing
and
coordinating
emergency action procedures for the
pilots of the F-5 aircraft. Others
provided training to the RSAF in
fighter weapons and tactics. As with
the SPAGE contract, Lear was required
to put up a performance guarantee
bond
for
$5.6
million
which
represented 5% of the total cost of the
contract. The Kingdom had the right to
retain the bond until the contract was
completed, and had the right to
withhold the last payment due under
the contract (to be no less than 10% of
the total contract cost) until the
contract was closed out. The final
payment amount under the TSP
was approximately $12.2 million,
and Lear alleges the Kingdom has
unjustifiably refused to pay this
amount.

Initially, the United States contracted

directly with the Kingdom to provide
support and maintenance for the fleet.
The United States then contracted
with third-party service providers such
as UNC Lear to fulfill the terms of
those support agreements.
In the mid-1990s, the Kingdom began
entering into agreements directly with
the third-party service providers to
obtain maintenance and support for
the fleet of aircraft.
In 1995, Lear and the Kingdom
entered into the F-5 Spare Parts and
Ground Equipment contract ("SPAGE").
Under this contract, F-5 parts and
components that needed repair were
shipped from Saudi Arabia to Lear in
San Antonio. Lear inspected the parts
to determine what repairs were
necessary, and communicated the
expected cost to the Kingdom. If the
Kingdom approved the repairs at that
cost, Lear solicited bids for the repairs,
and once the repairs were complete
returned the parts to Saudi Arabia. To
pay for the repairs, the Kingdom
funded an
irrevocable letter of credit ("LOC"). The
SPAGE contract required Lear to
provide monthly updates to the
Kingdom of the current amount
available through the LOC. If the
amount was below the amount
necessary
to
cover
expected
shipments of parts, Lear was to
promptly notify the Kingdom, at which
time the Kingdom, at its discretion,

Lear also alleges that in 1998, the

Kingdom's LOC funding the SPAGE
contract was depleted due to the
Kingdom's failure to fund the LOC, and
Lear had no mechanism to obtain
payment for its services. After 1998,

11 L

Lear alleges it worked with

Kingdom to prioritize repairs that

the

claims the Kingdom's argument that

back taxes have not been paid is
the result of

needed to be made and that the

Kingdom provided additional funds for
these repairs. Learalso cancelled some
outstanding repairs and continued to
store other parts. Lear accepted at
least one additional shipment of parts
after the LOC was depleted. The
Kingdom maintains that Lear should
have rejected all shipments after the
LOC funds were insufficient to cover
repairs. When the SPAGE contract
expired in 1999, Lear had a number of
F-5 parts in storage in its San Antonio
facility and continues to store these.
Lear has received no payment for the
storage costs. The Kingdom argues
that Lear retained these parts as a
gesture of goodwill, that Lear had no
obligation to store the parts, and that
the Kingdom has no obligation to pay
for the storage. The Kingdom states
that it instructed Lear to return the
parts and Lear refused. Lear argues
that the United States Air Force
instructed the Kingdom that the parts
could not be returned until the
contract was properly terminated. Lear
communicated this in a letter to the
Kingdom in 2002.

the Kingdom's misrepresentation of

Lear's
income
under
the
TSP
contract to the
taxing authority.
The Kingdom improperly extended
and eventually drew down Lear's
$5.6 million
performance
contract.

bond

under

the

TSP

The Kingdom's order that Lear

rent an expensive housing complex
shifted inordinate
and
unjustified
expense to Lear. Lear was forced
to comply or risk losing the TSP
contract.
Under the SPAGE contract, Lear
has
incurred
significant
uncompensated
storage costs for
storing the F-5 parts in its San Antonio
warehouse.
The meetings between Lear and
the Kingdom did not resolve any
of these issues.
(EMERGENCY RECIT) SUMMARY:

In 2003 and 2004, Lear met with the

Kingdom in an attempt to resolve their
contractual

In 2004, Lear filed this suit against the

Kingdom in Texas. Lear made claimed
under both the TSP and SPAGE
contracts, alleging that the Kingdom
breached both contracts in the
manner stated above. The Kingdom
moved to dismiss the suit on
grounds
that
the
contracts
contained forum-selection clauses
that required any litigation to
take place in Saudi Arabia. The
district court denied the motion, and
determined that these clauses were
permissive rather than mandatory

disputes and close out both contracts.

In particular, Lear complained of the
following:
The Kingdom improperly withheld
the final payment due under the
TSP contract,
approximately $12.2 million, due to
the alleged failure by Lear to pay
taxes. Lear
12 L

forum-selection
clauses.
The
Kingdom then moved to dismiss on
the grounds of (1) sovereign immunity
under
the
Foreign
Sovereign
Immunities Act ("FSIA"), (2) for forum
non conveniens, and (3) the act of
state doctrine. The district court
allowed jurisdictional discovery on the
FSIA and forum non conveniens issues.
After conducting a hearing and
reviewing the evidence presented, the
district court found that the Kingdom's
actions under both contracts fell
within the commercial activities
exception of the FSIA, therefore
subjecting the Kingdom to the
jurisdiction of the district court.
The district court also denied the
motion to dismiss on grounds of forum
non conveniens. It found that Saudi
Arabia was an available and adequate
forum, but determined that the public
and private factors weighed in favor of
Texas.

Employees under the TSP contract

performed their work in Saudi Arabia
and were integrated with the RSAF.
Some of these employees provided
flight operations services and training
to the RSAF. Others trained the pilots
in survival skills, including escape and
evasion, and ejection over sea, desert,
or mountain terrain. Employees also
performed maintenance on the F-5
aircraft, minimizing the time the
aircraft were unavailable for defense.
Unlike a contract to buy army boots or
bullets, as the Supreme Court
discussed above, the TSP was a
contract to provide personnel that
were vital to the operation of a
national air defense system. While the
purpose of the TSP contract was
undeniably sovereign, the nature of
the contract was also sovereign. The
TSP employees were integrated into
the RSAF and can be considered
military personnel. The legislative
history from the FSIA instructs "the
employment
of
diplomatic,
civil
service, or military personnel" is not
commercial in nature.

The Kingdom appealed the district

court's order denying its motion to
dismiss based on its claims of
sovereign immunity under the FSIA.

B. With respect to the SPAGE

contract, however, we agree
with Lear that it falls within
the
commercial
activity
exception to the FSIA. A
foreign
state
undertakes
commercial activity when it
enters the marketplace and
exercises "the same powers
that a private citizen might
exercise." in Weltover, the
purchase of army boots or
bullets is a commercial activity.
Here, the Kingdom entered the
marketplace to obtain repair
services
for
parts
and
components for its F-5 aircraft.
Under this contract, damaged or

Issues:
1) whether defendant is immune
from suit?
2) whether the forum-selection
clauses in the contracts require us
to yield to the Saudi forum;
and 3) whether the district court
abused its discretion in denying
the Kingdom's motion to dismiss
for forum non conveniens.
HELD: ( We need to qualify here..)
A. With regard to TSP Contract
YES. TSP contract does not fall within
the commercial activity exceptions.
13 L

defective aircraft parts were

shipped from Saudi Arabia to
San Antonio, where they were
evaluated, repaired, and stored
before being shipped back to
Saudi Arabia.

acknowledged that neither forum was

ideal for both parties and that some
inconvenience was unavoidable. It also
acknowledged
that
while
both
countries had an interest in trying the
case, the United States, and Texas in
particular, had a stronger interest.

"a contract by a foreign

government
to
buy
equipment for its armed
services
constitutes a commercial
activity to which sovereign
immunity does not apply."

The SPAGE contract's considerable

connection
with
Texas
and
its
continuing effects in that state, along
with the other private and public
interest factors demonstrate that
Texas is an appropriate forum, and the
district court did not abuse its
discretion in denying the Kingdom's
motion to dismiss based on forum non
conveniens. (It also noted that many

HOWEVER
But commercial activity by a sovereign
alone is not enough to establish
jurisdictionthe activity must also
have a direct effect in the United
States. "[A]n effect is `direct' if it
follows `as an immediate consequence
of the defendant's . . . activity. An
effect of a contract is also direct
when it is to be primarily
performed in the United States.

of the Kingdom's witnesses were

fluent
in
English,
while
Lear's
witnesses were not fluent in Arabic,
making
the
United
States
a
preferable forum. The district court
acknowledged that Lear's choice of
forum was due somedegree of
deference.)

DIVORCE, ANNULMENT and LEGAL

SEPARATION

But the court has held that significant

financial
harm
suffered
by
an
American company when a foreign
government refuses to remit funds
due under a commercial contract is a
sufficient direct effect to meet this
exception.

Tenchavez vs Escano
Facts:
Vicenta Escao, 27 years of age
( came from a prominent family),
exchanged marriage
vows
with
Pastor Tenchavez, 82 years of age,
an engineer, exarmy officer and
without the knowledge
of
her
parents, before a Catholic chaplain,
Lt. Lavares, in Cebu. The marriage
was the culmination of a pre 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, their
matchmaker and gobetween, they
had planned out their marital future

Issue #2. Forum-Selection Clause

NO. The language MUST BE CLEAR.
The Kingdom argument that the
SPAGE contract contains a forumselection clause that requires this
dispute to be heard in Saudi Arabia by
the Board of Grievance. Mandatory
forum-selection clauses that require all
litigation to be conducted in a
specified forum are enforceable if their
language is clear. The district court
14 L

 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. But
the elopement did not, however,
materialize because when Vicenta
went back to her classes after the
marriage, her mother was already
waiting for her at the college, Vicenta
was
taken
home
where
she
admitted that she had already
married Pastor. The parents were
surprised, because Pastor never
asked for the hand of Vicenta, and
were disgusted because of the
great scandal that the clandestine
marriage would provoke . The next
day, the parents consulted a priest
who advised them that there was a
need for the 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.
However, recelebration did not take
place because the father disagreed for
the recelebration of marriage. Vicenta
then continued to live with her parents
while Pastor returned to Manila. She
was not prevented by her parents
from communicating with Pastor but
her letters became less frequent as
the days passed. As of June, 1948
the
newlyweds
were
already
estranged.

Cebu society. There, a lawyer filed

for her a petition, drafted by then
Senator
Pelaez, to
annul
her
marriage. She did not sign the
petition. Hence, it was dismissed
without prejudice because of her
nonappearance at the hearing.
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 f iled a petition with
the Archbishop of Cebu to annul
their
daughter's
marriage to
Pastor .In September 1954, Vicenta
sought papal dispensation of her
marriage . 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. acquired American
citizenship on 8 August 1958.
However, in 1955, Tenchavez had
initiated the proceedings at bar by
a complaint in CFI Cebu against
Vicenta and her parents, whom he
charged with having dissuaded and

Vicenta
had
gone
to
Misamis
Occidental, to escape from the
scandal that her marriage stirred in
15 L

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 1
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.

also because Act 3613 of the

Philippine Legislature (which was the
marriage law in force at the time)
expressly provided
While, Vicenta argued 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.
Issue: Whether the divorce decree
obtained in US by the defendant valid
in PH?
Held: No. Even for the sake of
argument,
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 CFI- Misamis was
dismissed for non prosecution. It is
equally clear from the record that
the valid marriage between Pastor
Tenchavez and Vicenta 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. She was then subject
to Philippine Iaw, and Article 15 of
the Civil Code of the Philippines

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.
The
appellant
ascribes,
as
errors of the trial court: In not
declaring legal separation in
not
holding defendant Vicenta
liable
for
damages
and
in
dismissing the complaint
Tenchavez averred that on Feb 24 ,
1948 ( date of marriage), he and
Vicenta were validly married from the
standpoint of civil law. Both parties
were then above the gae of majority
and qualified; 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
16 L

(Rep. Act No. 386), already in force

at the time, expressly provided:

irritating scandalous discrimination in

favor of wealthy citizens, to the
detriment of those members of our
polity whose means do not permit
them
to
sojourn
and
obtain
absolute divorces the Philippines.

"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."

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
and
additionally,
because the mere appearance of
a nonresident consort cannot
confer jurisdiction
where
the
court originally had none .

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 Instead of divorce, the
present Civil Code only provides for
legal separation and, even in that
case, it expressly prescribes that "the
marriage
bonds
shall
not
be
severed" For the Philippine courts to
recognize and give recognition or
effect to a foreign decree of
absolute
divorce between
Filipino
citizens would 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:

Vicentas divorce and 2nd 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
Tenchavez to a decree of "legal
separation under our law, on the
basis of adultery"

"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 the of effectivity in this
jurisdiction to such foreign divorce
would, in effect, give rise to an
17 L

Summing up, the Court rules:

that the parties were divorced in

Nevada, United States, in 1982 and
that petitioner has remarried also
in Nevada, this time to Theodore Van
Dorn.

1. That
a
foreign
divorce
between
Filipino
citizens,
sought and decreed after the
effectivity of the present Civil
Code (Rep. Act 886), 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
cohabitation 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.

1983, private respondent filed suit

against petitioner with RTC- pasig ;
stating that petitioner's business in
Ermita
(the
Galleon
Shop),
is
conjugal property of the parties,
and; 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".
For his part, private 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.

Vandorn vs. Romillo

Facts:
Petitioner (Alice) is a citizen of the
Philippines while private respondent
( Richard Upton) 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
December

April
4,
18, 1975,

RTC: denied
the Motion
to
Dismiss in the on the ground
that the property involved is
located in the Philippines so
that the Divorce Decree has no
bearing in the case.

1973
and
respectively
18 L

Issue: Whether the divorce decree

obtained in Nevada has force and
effect in the PH?

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.

Held: YES. 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 and to
represent him ( PR) on the ground of
incompatibility
in
the
understanding that there were
neither community property nor
community obligations.

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
of the Civil Code cannot be just.

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.

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.

It is true that owing to the

nationality
principle embodied
in
Article 15 of the Civil Code, only
Philippine nationals are covered by
the policy against absolute divorces
the same being considered contrary
to our concept of public policy and
morality.
However,
aliens
may
obtain divorces abroad, which may
be recognized in the Philippines,
provided they are valid according
to their national law.

MOTION TO DISMISS: GRANTED.

Pilapil vs Ibay-Somera
Facts: On
September
7,
1979,
petitioner Imelda Manalaysay Pilapil,
19 L

a
Filipino
citizen,
and
private
respondent Erich Ekkehard Geiling, a
German national, were married in
Germany. The marriage
started
auspiciously enough, and the couple
lived together for some time in
Malate, Manila where their only
child, Isabella Pilapil Geiling, was born
on April 20, 1980. Thereafter, marital
discord
set
in,
with
mutual
recriminations between the spouses,
followed by a separation de facto
between them.

respondent, petitioner had an affair

with a certain William Chia as early
as 1982 and with yet another man
named Jesus Chua sometime in 1983.
Assistant
Fiscal,
after
the
corresponding
investigation,
recommended the dismissal of the
cases
on
the
ground
of
insufficiency
of
evidence.
However,upon
review,
the
respondent city fiscal approved a
resolution, directing the filing of 2
complaints for adultery against the
petitioner.

After about 3 and half of marriage,

such
connubial
disharmony
eventuated in private respondent
initiating
a
divorce
proceeding
against
petitioner
in Germany in
1983. He claimed that there was
failure of their marriage and that
they had been living apart since April,
1982.

Petitioner filed a petition with the

Secretary of Justice asking that the
aforesaid resolution of respondent
fiscal be set aside and the cases
against her be dismissed. A similar
petition was filed by James Chua, her
coaccused.
Issue: Whether private respondent has
legal standing to file a suit of adultery
against petitioner?

Petitioner, on the other hand, filed

an
action
for
legal separation,
support and separation of property
before RTC-Manila

HELD:
NONE. In the present case, the fact
that private respondent obtained a
valid divorce in his country, the
Federal Republic of Germany, is
admitted. Said divorce and its legal
effects may be recognized in the
Philippines
insofar
as
private
respondent is concerned in view of
the nationality principle in our civil
law on the matter of status of persons.

In 1986
a decree of divorce was
promulgated in Germany on
the
ground of failure of marriage of the
spouses. The custody of the child
was
granted
to
petitioner. The
records show that under German
law said court was locally and
internationally competent for the
divorce proceeding and that the
dissolution of said marriage was
legally founded on and authorized
by the applicable law of that foreign
jurisdiction.

Under the same considerations ( Van

Dorn vs Romillo)
and
rationale,
private respondent, being no longer
the husband of petitioner, had no
legal standing to commence the
adultery case under the imposture
that he was the offended spouse
at the time he filed suit.

5 months after the issuance of divorce

decree, private respondent filed 2
complaints for adultery before the
City Fiscal of Manila alleging that,
while
still
married
to
said
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The allegation of private respondent

that he could not have brought this
case before the decree of divorce
for lack of knowledge, even if true,
is of no legal significance or
consequence in this case. When
said respondent initiated the divorce
proceeding, he obviously knew that
there would no longer be a family
nor marriage vows to protect once
a dissolution of the marriage is
decreed. Neither would there be a
danger of introducing spurious heirs
into the family, which is said to be
one
of
the
reasons
for
the
particular

married a certain Innocent Stanley.

She, Stanley and her child by him
currently live in 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.
The proper remedy, according to
the OSG, is to file a petition for
annulment or for legal separation.

formulation of our law on adultery,

since there would thenceforth be no
spousal relationship to speak of.
The severance of the marital bond
had the effect of dissociating the
former spouses from each other,
hence the actuations of one would not
affect or cast obloquy on the other.

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.
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.

Republic vs Orbecido
Facts:
On
May
24,
1981,
Cipriano
Orbecido III married Lady Myros M.
Villanueva at the United Church of
Christ in the Philippines in Laman,
Ozamis City. Their marriage was
blessed with a son and a daughter,
Kristoffer
and Lady Kimberly V.
Orbecido.

Issue:
WHETHER OR NOT RESPONDENT
CAN REMARRY UNDER ARTICLE 26 OF
THE FAMILY CODE?

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.

Held: ( Need to qualify)

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

Sometime in 2000, Cipriano learned

from his son that his wife had
obtained a divorce decree and then
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who,
at
the
time
of
the
celebration of themarriage 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.

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.

In view of the foregoing, we state

the twin elements for the application
of Paragraph 2 of Article 26 as follows:

xxxART.
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.

Thus Cipriano,
the
divorced
Filipino spouse, should be allowed
to remarry. However, Cipriano failed
to prove thru sufficient
evidence
submitted
and
on
record,
SC
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.
Discussion

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.

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. Xxx

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.

On its face, the foregoing provision

does not appear to govern the
22 L

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.

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.
Corpuz vs Sto. Tomas
Facts:
Petitioner Gerbert R. Corpuz was a
former Filipino citizen who acquired
Canadian
citizenship
through
naturalization
on
November
29,
2000.

Noteworthy, in the Report of the Public

Hearings
on the Family Code, the Catholic
Bishops
Conference
of
the
Philippines (CBCP) registered the
following objections to

In Jan. 2005,
Gerbert
married
respondent Daisylyn T. Sto. Tomas,
a Filipina, in Pasig City.

Paragraph 2 of Article 26:

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 of Canada
granted
Gerberts petition
for
divorce on December 8, 2005. The
divorce decree took effect a month
later, on January 8, 2006.

2.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 remarry, while the spouses of foreigners
who validly divorce them abroad can.
Nevertheless, we are unanimous in
our
holding
that Paragraph 2 of
Article 26 of the Family Code (E.O. No.
209, as amended:
hould 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

2 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
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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

this
jurisdiction
for
the
recognition of a foreign divorce
decree.
HELD: NO. 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.
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.

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 partyininterest with a similar prayer
to Gerberts.

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.

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 in order for him to remarry.

Howver, 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 In
other
words, the
unavailability
of
the
second

Issue : whether
the second
paragraph of Article 26 of the
Family Code extends to aliens
the right to petition a court of
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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.

The records show that Gerbert

attached to his petition a copy of
the divorce decree, as well as the
required certificates
proving
its
authenticity, but failed to include
a copy of the Canadian law on
divorce.
Case is dimissible but the court
ordered the REMAND for the
benefit of the Filipina ex-wife.
Roehr vs Rodriguez
Facts:
Petitioner Wolfgang O. Roehr, a
German
citizen
and resident
of
Germany,
married
private
respondent
Carmen Rodriguez,
a
Filipina, on December 11, 1980 in
Hamburg, Germany. Their marriage
was
subsequently
ratified
on
February 14, 1981 in Tayasan,
Negros Oriental.

Hence, In a divorce situation, SC

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.
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

Out
of their
union
were
born
Carolynne and Alexandra Kristine on
November 18, 1981 and October 25,
1987, respectively.
IN 1996, private respondent filed a
petition for declaration of nullity of
marriage before

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.

(RTC) -Makati City. Petitioner then

filed a motion to dismiss, but it
was denied by the trial court in its
order. MR denied again
Meanwhile, petitioner obtained a
decree
of
divorce
from CFIHamburg, Germancy promulgated on
December 16, 1997. The parental
custody of the 2 children was granted
to the father.
In view of said decree, petitioner
filed a motion to dismiss on
the
ground that the trial court had no
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jurisdiction over the subject matter

of the action or suit as a decree of
divorce
had
already
been
promulgated dissolving the marriage
of petitioner and private respondent.

finality. Considering
that
private
respondent
filed
a motion for
reconsideration
within
the
reglementary period, the trial courts
decision
in 1999
can
still
be
modified.

RTC Judge issued an order granting

petitioners
motion
to
dismiss.
Private respondent filed a Motion for
Partial
Reconsideration,
with a
prayer that the case proceed for
the purpose of determining the
issues of custody of children and
the distribution of the properties.
Opposition to the Motion for

As a general rule, divorce decrees

obtained
by
foreigners in
other
countries are recognizable in our
jurisdiction,
but the legal effects
thereof, e.g. on custody, care and
support of the children, must still be
determined by our courts.
Before our courts can give the
effect of res judicata to a foreign
judgment, such as the award of
custody to petitioner by the German
court, it must be shown that the
parties opposed to the judgment
had been given ample opportunity
to do so on grounds allowed under
Rule 39, Section 50 of the Rules of
Court:

Partial Reconsideration was filed by

the petitioner on the ground that
there
is
nothing
to
be
done
anymore in the instant case as the
marital
tie
between
petitioner
Wolfgang Roehr and respondent Ma.
Carmen D. Rodriguez had already
been severed by the decree of
divorce promulgated by the Court of
First Instance of Hamburg, Germany
in Dec. 1997 and in view of the
fact that said decree of divorce had
already been recognized by the
RTC in its order in 1999, through
the implementation of the mandate
of Article 26 of the Family Code,
endowing the petitioner with the
capacity to remarry under the
Philippine law.

SEC.
50.
Effect
of
foreign
judgments.The
effect
of
a
judgment of a tribunal of a foreign
country,
having
jurisdiction
to
pronounce the judgment is as follows:
a. In case of a judgment upon
a
specific
thing,
the
judgment is conclusive upon
the title to the thing
b. In
case
of
a
judgment
against
a
person,
the
judgment
is presumptive
evidence
of
a
right
as
between the parties and their
successors in interest by a
subsequent
title
but the
judgment 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.

Issue: Whether RTC judge can assume

and retaine jurisdiction over the
present
case pertaining to the
determination of the custody of the
children
despite
the
fact that
petitioner has already obtained a
divorce decree from a German court.
HELD: YES. It is clear from the
foregoing rules that a judge can
order a partial reconsideration of a
case that has not yet attained
26 L

It is essential that there should

be an opportunity to challenge
the foreign judgment, in order
for the court in this jurisdiction
to
properly
determine
its
efficacy. In this jurisdiction, our
Rules of Court clearly provide that
with respect to actions in personam,
as distinguished from actions in
rem, a foreign judgment merely
constitutes prima facie evidence of
the justness of the claim of a
party and, as such, is subject to proof
to the contrary.

offending spouse was. Absent any

finding that private respondent is
unfit to obtain custody of the
children, the trial court was correct
in setting the issue for hearing to
determine the issue of parental
custody,
care, support
and
education
mindful
of
the
best
interests of the children. This is in
consonance with the provision in
the Child and Youth Welfare Code
that the childs welfare is always
the paramount consideration in all
questions concerning his care and
custody.

In the present case, it cannot

be said that private respondent
was given the opportunity to
challenge the judgment of the
German court so that there is
basis
for declaring
that
judgment as res judicata with
regard
to
the rights
of
petitioner
to
have
parental
custody of their two children.
The proceedings in the German
court were summary. As to what
was
the
extent
of
private
respondents participation in the
proceedings in the German court,
the records remain unclear. The
divorce decree itself states that
neither has she commented on the
proceedings nor has she given her
opinion
to
the
Social Services
Office.Unlike petitioner who was
represented by two lawyers, private
respondent had no counsel to
assist her in said proceedings. More
importantly, the divorce judgment
was issued to petitioner by virtue
of the German Civil Code provision
to the effect that when a couple
lived separately for three years, the
marriage
is
deemed irrefutably
dissolved. The decree did not touch
on
the
issue as
to
who
the

Marcos vs Marcos
Marcos v. Marcos, further clarified
that there is no requirement that
the
defendant/respondent spouse
should be personally examined by
a physician or psychologist as a
condition sine qua non for the
declaration of nullity of marriage
based on psychological incapacity.
Accordingly, it is no longer necessary
to allege expert opinion
in
a
petition under Article 36 of the
Family
Code
of
the Philippines.
Such
psychological
incapacity,
however, must be established by the
totality of the evidence presented
during the trial.

Facts:
Brenda and Wilson were
married
twice: (1) on September 6, 1982
which was solemnized by Judge
Espiritu in Pasig (2) on May 8, 1983
which was solemnized by Rev.
Eduardo
L. Eleazar,
Command
Chaplain,
at
the
Presidential
Security Command
Chapel
in
Malacanang Park, Manila . They first
met sometime in 1980 when both
of them were assigned at the
Malacaang Palace, she as an
escort of Imee Marcos and he as a
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Presidential
Ferdinand

Guard

of

President

to stay in their house anymore. On

that day, when she saw him in
their house, she was so angry that
she lambasted him. He then turned
violent, inflicting physical harm on her.
Thereafter, she and her children left
the house and went to her sisters
house.

Marcos.
Through
telephone
conversations,
they
became
acquainted and eventually became
sweethearts.
Out of their marriage,
children were born .

five

(5)

However, Sometime in August 1995,

she together with her 2 sisters

Appellant Wilson G. Marcos joined

the Armed Forces of the Philippines
in
1973.
Later
on,
he
was
transferred
to
the Presidential
Security Command in Malacaang
during the

and driver, went to him to look for

their missing child, Niko. Upon seeing
them, he got mad. After knowing the
reason
for
their
unexpected
presence, he ran after them with a
samurai and even [beat] her driver.

During Marcos
Regime.
Appellee
Brenda B. Marcos, on the other
hand, joined the Womens Auxilliary
Corps under the Philippine Air Force
in 1978. After the Edsa Revolution,
both of them sought a discharge
from the military service.

Brenda then filed a this petition for

nullity of marriage on ground of
psychological
incapacity
against
Wilson.
Brenda
consulted
a
psychologist but Wilson refused.
Wilson was then found by psychologist
to be incapacitated to perform his
marital duties.

After their 1st marriage, the couple

resided in Bliss unit owned by Brenda
while
she
was
still
single
in
Manadaluyong. After the downfall of
President Marcos, Wilson engaged in
different business but that did not
however prosper. As a wife, she
always urged him to look for work
so that their children would see
him, instead of her, as the head of
the family and a good provider. Due to
his failure to engage in any gainful
employment,
they
would
often
quarrel and as a consequence, he
would hit and beat her and forced
her to have sex with him. Until she
Brenda was able to put up a trading
and construction company, NS Ness
Trading and Construction Development
Corporation.

RTC: found the appellant to be

psychologically incapacitated to
perform his marital obligations
mainly because of his failure to
find work to support his family
and his violent attitude towards
appellee and their children.
CA
held
incapacity
established
the evidence

that
psychological
had
not
been
by the totality of
presented.

XXXEssential in a petition for

annulment is the allegation of the
root cause
of
the
spouses
psychological
incapacity
which
should
also be
medically
or
clinically
identified,
sufficiently
proven
by
experts and
clearly
explained in the decision. The

In 1994, the couple were living

separately as she did not want him
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incapacity must be proven to be

existing at the time of the celebration
of the marriage and shown to be
medically or clinically permanent or
incurable. It must also be grave
enough
to
bring
about
the
disability of the parties to assume
the
essential
obligations
of
marriage as set forth in Articles 68
to 71 and Articles 220 to 225 of
the
Family Code and such noncomplied marital obligations must
similarly be alleged in the petition,
established
by
evidence
and
explained in the decision. In the
case before us, the appellant was
not subjected to any psychological
or
psychiatric
evaluation.
The
psychological findings about
the
appellant by psychiatrist Natividad
Dayan were based only on the
interviews
conducted
with
the
appellee. XXX

examine the person to be declared

psychologically
incapacitated.
In
fact,
the
root
cause
may be
medically or clinically identified.
What is important is the presence
of evidence that can adequately
establish
the partys psychological
condition. For indeed, if the totality
of evidence presented is enough to
sustain a finding of psychological
incapacity,
then
actual
medical
examination of the person concerned
need not be resorted to.
There is absolutely no showing that
his defects were already present
at the inception of the marriage or
that they are incurable.
Verily, the behavior of respondent
can be attributed to the fact that
he had lost his job and was not
gainfully employed for a period of
more than six years. It was during
this period that he became Thus, his
alleged psychological illness was
traced only to said period and not to
the inception of the marriage.

Issue:
Whether or not CA could set aside
the
findings
by
the
RTC
of
psychological
incapacity
of
a
respondent
in a
Petition
for
declaration of nullity of marriage
simply because the respondent
did
not
subject himself to
psychological evaluation?

Equally important,
there
is no
evidence showing that his condition
is incurable, especially now that he
is gainfully employed as a taxi driver.
Article 36 of the Family Code, we
stress, is not to be confused with a
divorce law that cuts the marital
bond
at the
time
the
causes
therefor manifest themselves. It
refers to a serious psychological
illness afflicting a party even before
the celebration of the marriage. It
is a malady so grave and so
permanent as to deprive one of
awareness
of the
duties
and
responsibilities of the matrimonial
bond one is about to assume.
Neither is Article 36 to be equated

HELD: SC ruled that while it agreed

with petitioner that the personal
medical or psychological examination
of respondent is not a requirement
for a declaration of psychological
incapacity. Nevertheless, the totality
of the evidence she presented does
not
show
such
incapacity.
psychological incapacity must be
characterized by (a) gravity, (b)
juridical
antecedence,
and
(c)
incurability. The foregoing guidelines
do not require that a physician
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with legal separation, in which the

grounds need not be rooted in
psychological incapacity
but
on
physical violence, moral pressure,
moral corruption, civil interdiction,
drug addiction, habitual alcoholism,
sexual infidelity, abandonment and
the like.

c. he did not
support to his
d. he has been
duties both as
as a father.

give financial
childrenand
remiss in his
a husband and

To substantiate her charges, Rosa

offered documentary and testimonial
evidence.

Because
Article
36
has
been
abused as a convenient divorce law,
this Court laid down the procedural
requirements for its invocation in
Molina. Petitioner, however, has not
faithfully observed them.

a. For the first five (5) years of

their marriage, Justo did not
support
her
and
their
children
because
he
shouldered
his
sisters
schooling. Consequently,
she
was the one who spent for
all their family needs, using
the income from her Botica
and store.
b. Justo lived the life of a
bachelor. His
usual
routine
was to spend time with his
barkadas
until
the
wee
hours
of
the
morning.
Oftentimes, he would scold her
when she sent for him during
lunchtime.
c. He also failed to provide for
their childrens wellbeing.
d. Sometime
in
1975,
their
daughter Cindy Rose was
afflicted with leukemia. It
was her family who paid for
her medication.
e. Also, in 1984, their son Raoul
was electrocuted while Justo
was in their rest house with
his barkadas. He did not
heed
her
earlier advice to
bring Raoul in the rest house as
the latter has the habit of
climbing the rooftop.

In sum, this Court cannot declare

the dissolution of the marriage for
failure of petitioner to show that
the alleged psychological incapacity
is characterized by gravity, juridical
antecedence and incurability and
for
her
failure to observe the
guidelines outlined in Molina.
Paras vs Paras
Facts:
Rosa Yap married respondent Justo
J. Paras in Negros Oriental. They
begot four (4) children.
Twentynine (29) years later or on
May 27, 1993, Rosa filed with RTC
Dumaguete City, a complaint for
annulment of her marriage with
Justo, under Article 36 of the
Family Code. She alleged that Justo
is psychologically incapacitated to
exercise the essential obligations of
marriage as shown by the following
circumstances:
a. he dissipated her business
assets
and
forged
her
signature in one mortgage
transaction
b. he lived with a concubine
and sired a child with her

To cope with the death of the

children, the entire family went to
the
United
States.
Her
sisters
supported
them throughout
their
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twoyear stay there. However, after

three months, Justo abandoned them
and left for the Philippines.

10room family house, expand their

store, establish their gasoline station,
and purchase several properties. He
also denied forging her signature in
one mortgage
transaction.
He
maintained that he did not dispose
of a conjugal property and that he
and
Rosa personally signed the
renewal of a sugar crop loan before
the banks authorized employee.As to
their marital relationship, he noticed
the change in Rosas attitude after
her return from the United States.
She became detached, cold, uncaring,
and overly focused on the business

Upon her return to the Philippines, she

was shocked to find her Botica and
other businesses heavy in debt.
She then realized Justo was a
profligate. At one time, he disposed
without her consent a conjugal
piece of land.
At other times, he permitted the
municipal
government
to
take
gasoline from their gas station free of
charge.

He tried to reach her but Rosa

was steadfast
in
her
new
attitudinal outlook. Before other
people, he merely pretended that
their relationship was blissful. He did
not abandon his family in the
United States. It happened that
they only had tourist visas. When
they were there,
their
childrens
tourist visas were converted into
study visas, permitting them to
stay longer. For his part, he was
granted only three (3) months
leave as municipal mayor of Bindoy,
thus, he immediately returned to
the Philippines. He spent for his
childrens education. At first, he
resented supporting them because
he
was
just
starting
his law
practice and besides, their conjugal
assets were more than enough to
provide for their needs. He admitted
though that there were times he
failed to give them financial support
because of his lack of income.

She
endured
all
of
Justos
shortcomings,
but
his
act
of
maintaining a mistress and siring an
illegitimate child was the last straw
that prompted her to file the
present case. She found that after
leaving their conjugal house in
1988, Justo lived with Jocelyn Ching.
Their cohabitation resulted in the
birth of a baby girl, Cyndee Rose,
obviously named after her (Rosa)
and
Justos
deceased
daughter
Cindy Rose Paras.
JUSTOs VERSION:
In 1963, they decided to get
married. However, it was postponed
because
her
family demanded a
dowry. Their marriage took place in
1964 upon his mothers signing a
deed of conveyance involving 28
hectares of coconut land in favor of
Rosa.
He
blamed
the
subsequent
dissipation of their assets from the
slump of the price of sugar and
not to his alleged profligacy.

What caused the inevitable family

breakout
was
Rosas act
of
embarrassing
him
during
his
birthday celebration in 1987. She
did not prepare food for the

Due to his business ventures, he

and Rosa were able to acquire a
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guests.
When confronted, she
retorted that she has nothing to do
with his birthday. This convinced
him of her lack of concern.

Xxx finding
him
guilty
of
falsifying Rosas signature in
bank documents, immorality, and
abandonment of his family. He
was suspended from the practice
of law 6 months to 1 year. Xxxx

This was further aggravated when

she denied his request for engine
oil when his vehicle broke down in
a mountainous and NPAinfested area.

CA: Affirmed RTCs ruling.

The
Court of Appeals likewise held
that Rosas inability to offer the
testimony of a psychologist is
fatal
to
her
case, being
in
violation
of
the
tenets
laid
down by this Court in Molina.
Thus, she failed to substantiate
her
allegation that
Justo
is
psychologically
incapacitated
from complying with the essential
obligations of marriage.

As to the charge of concubinage,

he alleged that Jocelyn Ching is not
his mistress, but her secretary in
his
Law Office.
She
was
impregnated by her boyfriend, a
certain Grelle Leccioness.
RTC: Upheld the validity of their
marriage. RTC found:
(a) Justo did not abandon the
conjugal home as he was
forced to leave after Rosa
posted guards at the gates
of their
house
(b)
the
conjugal
assets
were
sufficient to support the family
needs, thus, there was no need
for Justo to
shell
out
his
limited salary and (c) the
charge
of infidelity
is
unsubstantiated. The
RTC
observed that the relationship
between the parties started
well, negating the existence
of psychological incapacity on
either party at the time of
the
celebration
of
their
marriage. And lastly, it ruled
that there appeared to be a
collusion
between
them as
both sought the declaration of
nullity of their marriage.

Issue: whether the totality of

evidence in the case shows
psychological incapacity on the
part of Justo?
HELD: NO. ITS BEREFT!
DISCUSSION
ON
MOLINA
DOCTRINE as applied in the case:
In Molina, the Court laid down the
Guidelines for the interpretation and
application of Article 36, thus: The
burden of proof to show the nullity
of the marriage belongs to the
plaintiff.
Any
doubt
should be
resolved in favor of the existence
and continuation of the marriage
and against its dissolution and nullity.
x x x.
The root cause of the psychological
incapacity must be (a) medically or
clinically identified, (b) alleged in
the
complaint,
(c)
sufficiently
proven by experts and (d) clearly
explained in the decision. Article 36 of
the Family Code requires that the
incapacity must be psychological

Justo interposed an appeal to the

Court of Appeals. In the interim,
Rosa filed with this Court a
petition for disbarment against
Justo.
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not
physical,
although
its
manifestations
and/or
symptoms
may be physical. The evidence must
convince the court that the parties,
or one of them, were mentally or
psychically ill to such an extent
that the person could not have
known the obligations he
was
assuming, or knowing them, could
not have given valid assumption
thereof. Although no example of
such incapacity need be given here so
as not to limit the application of the
provision under the principle of
ejusdem generis, nevertheless such
root cause must be identified as a
psychological
illness and
its
incapacitating nature fully explained.
Expert evidence may be given by
qualified
psychiatrists and clinical
psychologists.

to marriage, like the exercise of a

profession or employment in a job.
Hence, a pediatrician may be effective
in diagnosing illnesses of children
and prescribing medicine to cure
them
but
may
not
be
psychologically
capacitated
to
procreate, bear and raise his/her own
children as an essential obligation of
marriage. Such
illness
must
be
grave enough to bring about the
disability of the party to assume
the
essential obligations
of
marriage.
Thus,
mild
characteriological peculiarities, mood
changes,
occasional
emotional
outbursts cannot be accepted as
root causes. The illness must be
shown as downright incapacity or
inability, not a refusal, neglect or
difficulty, much less ill will. In other
words,
there
is
a
natal
or
supervening disabling factor in the
person, an adverse integral element
in the personality structure that
effectively incapacitates the person
from really accepting and thereby
complying
with
the
obligations
essential to marriage.XXXX

The incapacity must be proven to

be existing at the time of the
celebration of the marriage. The
evidence must show that the illness
was existing
when
the
parties
exchanged their I dos.
The manifestation of the illness
need not beperceivable at such
time, but the illness itself must
have attached at such moment, or
prior thereto.

The foregoing Guidelines incorporate

the basic requirements mandated by
the Court
To reiterate: psychological incapacity
must be characterized by (a) gravity
(b) juridical antecedence and (c)
incurability.

Such
incapacity
must
also
be
shown to be medically or clinically
permanent
or incurable.
Such
incurability may be absolute or
even relative only in regard to the
other
spouse,
not necessarily
absolutely against everyone of the
same sex.
Furthermore,
such
incapacity must be relevant to the
assumption of marriage obligations,
not necessarily to those not related

Xxxxsexual
infidelity
and
abandonment do not constitute
psychological incapacity absent
a showing of the presence of
such
promiscuity
at
the
inception of the marriagexxx
PETITION DENIED!

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