Bondagjy v.

Bondagjy, GR 140817, 7 December 2001

FOUZIY ALI BONDAGJY v. SABRINA ARTADI

Petitioner Fouziy Ali Bondagjy and respondent Sabrina Artadi were married according to Islamic
Law. Unfortunately, the marital union turned sour after a few years. On the ground of neglect or failure
to provide support for her and the family, the Artadi filed a complaint for divorce by faskh before the
Third Sharia Circuit Court at Isabela, Basilan which was dismissed since the grounds by which she relied
upon do not exist and that she does not reside in Zamboanga City. It was also counter argued he does
not neglect his wife and children, these are but allegations without evidence to support such claims.

After almost two years, the Artadi filed for declaration of nullity of marriage, custody and support before
the Regional Trial Court (RTC) of Muntinlupa City. The petition was dismissed for lack of jurisdiction over
the parties since they were Muslims at the time of the marriage, hence, regular courts cannot acquire
jurisdiction and on basis of res judicata because of the previous dismissal by Sharia Court. Subsequently,
Artadi again filed for divorce by faskh before the Second Sharia Circuit Court at Marawi City for neglect
and failure of the Bondagjy to provide support and to perform his martial obligations which was
dismissed on the ground of res judicata and failure to comply with the rule on forum shopping. Artadi
appealed to the Fourth Sharia Judicial District Court of Marawi City which ruled that res judicata does
not apply in the case at bar since the Artadi offered new evidences to prove that she is indeed entitled
to divorce, hence it remanded the case to the Second Sharia Circuit Court for hearing on the merits.

ISSUE:

Whether or not the doctrine of res judicata is applicable to the case

HELD:

For res judicata to bar the institution of a subsequent action, the following requisites must concur: (1)
the former judgment or order must be final; (2) the judgment or order must be on the merits; (3) it must
have been rendered by a court having jurisdiction over the subject matter and parties; and (4) there
must be, as between the first and second actions, identity of parties, of subject matter, and of causes of
action.

The test of identity of causes of action lies not in the form of an action but on whether the same
evidence would support and establish the former and present causes of action. If the same evidence
would sustain both actions, they are considered the same and covered by the rule that the judgment in
the former is a bar to the subsequent action. It is with respect to the presence of the fourth requisite
that the Court finds no such identity of causes of action. The causes of action are based on different
periods during which Bondagjy allegedly neglected or failed to support his family and perform his
marital obligations

Tonog v. CA, GR 122906, 7 February 2002

Facts:

In 1989, Dinah B. Tonog gave birth to Gardin Faith Belarde Tonog, her illegitimate daughter with Edgar
V. Daguimol. A year after the birth of Gardin, Dinah left for the USA where she found a work as a
registered nurse. Gardin was left in the care of her father and paternal grandparents.

Edgar filed a petition for guardianship over Gardin in the RTC of Quezon City. In March 1992, the court
granted the petition and appointed Edgar as legal guardian of Gardin.

In May 1992, Dinah filed a petition for relief from judgment. She averred that she learned of the
judgment only on April 1, 1992. The trial court set aside its original judgment and allowed Dinah to file
her opposition to Edgar's petition. Edgar, in turn, filed a motion for reconsideration.

In 1993, Dinah filed a motion to remand custody of Gardin to her.

In 1994, the trial court issued a resolution denying Edgar's motion for reconsideration and granting
Dinah's motion for custody of Gardin. Dinah moved for the immediate execution of the resolution.

Edgar, thus, filed a petition for certiorari before the Court of Appeals. The CA dismissed the petition for
lack of merit. Upon motion for reconsideration, CA modified its decision and let Gardin remain in the
custody of Edgar until otherwise adjudged.

Dinah appealed to the Supreme Court, contending that she is entitled to the custody of the minor,
Gardin, as a matter of law. First, as the mother of Gardin Faith, the law confers parental authority upon
her as the mother of the illegitimate minor. Second, Gardin cannot be separated from her since she had
not, as of then, attained the age of seven. Employing simple arithmetic however, it appears that Gardin
Faith is now twelve years old.
Issue:

Who is entitled to the temporary custody of the child pending the guardianship proceeding?

Held:

In custody disputes, it is axiomatic that the paramount criterion is the welfare and well-being of the
child.

Statute sets certain rules to assist the court in making an informed decision. Insofar as illegitimate
children are concerned, Article 176 of the Family Code provides that illegitimate children shall be under
the parental authority of their mother. Likewise, Article 213 of the Family Code provides that [n]o child
under seven years of age shall be separated from the mother, unless the court finds compelling reasons
to order otherwise. It will be observed that in both provisions, a strong bias is created in favor of the
mother. This is specially evident in Article 213 where it may be said that the law presumes that the
mother is the best custodian. As explained by the Code Commission:

The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby
torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of
tender age. The exception allowed by the rule has to be for compelling reasons for the good of the
child.

For these reasons, even a mother may be deprived of the custody of her child who is below seven years
of age for compelling reasons. Instances of unsuitability are neglect, abandonment, unemployment
and immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction
with a communicable illness. If older than seven years of age, a child is allowed to state his preference,
but the court is not bound by that choice. The court may exercise its discretion by disregarding the
childs preference should the parent chosen be found to be unfit, in which instance, custody may be
given to the other parent, or even to a third person.

In the case at bar, we are being asked to rule on the temporary custody of the minor, Gardin Faith, since
it appears that the proceedings for guardianship before the trial court have not been terminated, and no
pronouncement has been made as to who should have final custody of the minor. Bearing in mind that
the welfare of the said minor as the controlling factor, we find that the appellate court did not err in
allowing her father to retain in the meantime parental custody over her. Meanwhile, the child should
not be wrenched from her familiar surroundings, and thrust into a strange environment away from the
people and places to which she had apparently formed an attachment.
Moreover, whether a mother is a fit parent for her child is a question of fact to be properly entertained
in the special proceedings before the trial court. It should be recalled that in a petition for review on
certiorari, we rule only on questions of law. We are not in the best position to assess the parties
respective merits vis--vis their opposing claims for custody. Yet another sound reason is that inasmuch
as the age of the minor, Gardin Faith, has now exceeded the statutory bar of seven years, a fortiori, her
preference and opinion must first be sought in the choice of which parent should have the custody over
her person.

For the present and until finally adjudged, temporary custody of the subject minor should remain with
her father, the private respondent herein pending final judgment of the trial court.

Briones v. Miguel, GR 156343, 18 October 2004