GUALBERTO

v GUALBERTO
FACTS:
1. Crisanto Gualberto filed before the RTC a petition for declaration of nullity of
his marriage with Joycelyn Gualberto with an ancillary prayer for custody
pendent lite of their 4 year old son.
2. RTC awarded custody pendent lite of their child to Crisanto
3. Joycelyn filed a motion to lift the award of the custody to Crisanto but did not
present any evidence to support her motion. She also filed a MTD on the
ground that the petition is named after one Jocelyn not Joycelyn. Hence, the
court did not acquire jurisdiction over her person.
4. RTC issued an Order reversing the awarding of custody to Crisanto which led
to award the custody of the child to Joycelyn.
5. Crisanto appealed to the CA:
The order of the Judge awarding custody to Joycelyn is without any
factual or legal basis, the still valid and subsisting Order is the 9ne
awarding to him the custody of the child.
6. CAs Decision:
The prior Order awarding provisional custody to the father should
prevail because it was issued after a hearing and because the TC did
not resolve the correct incident in the later Order. The only issue to be
resolve is Joycelyns Motion to Dismiss and not the former Order (the
one awarding custody to Crisanto)
CA stressed that the trial court judge was not precluded from
considering and resolving Joycelyns Motion to lift the award of
custody pendent lite to Crisanto as the Motion had yet to be properly
considered and ruled upon.
7. Hence, this petition.

ISSUE: W/N the RTC judge can still resolve the Motion to Lift filed by Joycelyn
without any proper motion form Joycelyn, even if the Order awarding custody
to him has become final and executory

HELD: YES.

1. The MTD filed by Joycelyn befor e the RTC is her ancillary prayer for the
court to lift and set aside its April 3, 2002 Order awarding to Crisanto
custody pendente lite of their minor son. Indeed, the necessary consequence
of granting her Motion to Dismiss would have been the setting aside of the
Order awarding Crisanto provisional custody of the child. Besides, even if the
Motion to Dismiss was deniedas indeed it wasthe trial court, in its
discretion and if warranted, could still have granted the ancillary prayer as
an alternative relief.
2. Parenthetically, Joycelyns Motion need not have been verified because of the
provisional nature of the April 3, 2002 Order. Under Rule 38 of the Rules of
Court, verification is required only when relief is sought from a final and
 executory Order. Accordingly, the court may set aside its own order even
without proper motion, whenever such action is warranted by the Rules to
prevent a miscarriage of justice.
3. The requirement in Section 1 of Rule 36 (for judges to state clearly and
distinctly the reasons for their dispositions) refers only to decisions and final
orders on the merits, not to those resolving incidental matters.
4. Here, the declaration of the nullity of marriage is the subject of the main case,
in which the issue of custody pendente lite is an incident. Clearly then, the
requirement cited by Crisanto is inapplicable. In any event, in its questioned
Resolution, the CA clearly stated that it could not find any cogent reason to
reconsider and set aside the assailed portion of its August 30, 2002 Decision.
5. Lastly, the Order is not final and executor. The award of temporary custody is
provisional and subject to change.