REPUBLIC OF THE PHILIPPINES

10TH Judicial Region

REGIONAL TRIAL COURT OF MISAMIS ORIENTAL
Branch 19
Cagayan de Oro City

ALFLOR W. VINTE CV-FMY-2017-234

Petitioner,

For:
LEGAL SEPARATION, JUDICIAL
SEPARATION
- versus - OF PROPERTY, APPOINTMENT
OF ADMINISTRATOR PENDENTE
LITE AND OTHER RELIEFS

MERA C. JADAP-VINTE
Respondent,
x ----------------------------------/

MEMORANDUM OF THE PETITIONER

COMES NOW, THE PETITONER, through the undersigned

counsel, unto this Honorable Court most respectfully submits and presents
this Memorandum in the above-titled case and avers that;

I. THE PARTIES

1. The petitioner is of legal age, Filipino, of legal age, married to each

other, and resident of Zone 3, Bonbon, Cagayan de Oro City;

2. The respondent is of legal age, Filipino, married, and a resident of

Zone 3, Bonbon, Cagayan de Oro City;

Memorandum Page 1 of 9
 II. TIMELINESS OF THE MEMORANDUM

3. An Order from this Honorable Court dated May 14, 2019, giving the
herein parties thirty (30) days from receipt to submit their respective
memoranda was received by the undersigned on May 29, 2019. Hence this
compliance;

III. FACTUAL ANTECEDENTS

4. The herein parties are married to each on May 6, 1991, in Cagayan de

Oro City. Out of the marriage, three children were born, namely: Almira J.
Vinte who was born on October 2, 1990, Elhyflor J. Vinte who was born on
October 22, 1991, and Shaira J. Vinte who was born on May 22, 1996.

5. Sometime in July of 2016, petitioner Alflor Vinte was surprised when

his wife, the herein respondent was sent home by a man in a motorcycle. He
then asked her who was the man, to which she replied that it was just a
“habal-habal" driver. However, the motorcycle was an expensive type and
could not have been possibly operated only as “habal-habal.”

6. With such, the petitioner has become suspicious on who was that man
who sent her wife home and on August 28, 2016, the truth was unfolded to
him. It happened when on the said date, the couple went to attend a fiesta in
friend’s house and when they got home, the respondent was drunk as she had
a drinking sessions.

7. Suddenly, there was a text message in her cell phone from a certain
Matt. Herein petitioner then replied to the same message pretending to be
the respondent saying that he would meet Matt at Hightime lodging house,
to which the latter okayed;

8. Immediately, petitioner went to Hightime, and there he saw the same

motorcycle which was used to drive home respondent in July of 2016;

9. When petitioner went back home, he confronted respondent. The

parties had a quarrel, and then respondent left the conjugal house, riding in
the "habal-habal";

10. Incidentally, the "habal-habal" driver was personally known to the

petitioner. Petitioner asked the "habal-habal" driver to accompany him to
the place where his wife was transported. The motorcycle driver
accompanied the petitioner to Puntod, Cagayan de Oro City, particularly to

Memorandum Page 2 of 9
the house, later discovered as one owned by a certain Matt Portillano;

11. Sometime then on November of 2016, petitioner searched for the

Facebook account of one Matt Portillano. He was able to download two
pictures from the said account. The same pictures were offered as evidence
for the petitioner and marked as Exh. “E” and Exh. “F respectively;

12. Subsequently, or in December of the same year, petitioner discovered

a picture of the respondent in an intimate pose with Matt Portillano. The
same picture was offered as evidence for the plaintiff and marked as Exh.
“G”.

13. That petitioner was also able to download a picture of the respondent
in her Facebook account. The picture is of peculiar significance as it is clearly
taken from the same room as reflected in Exh. “F” which is the picture of
Matt Portillano in his room. Common to both pictures also is the green pillow
where the same phrase “I love you” is printed.

14. As of September 2016, up to the present, though the parties are living
under the same roof, they are however on separate rooms and that they have
had no more sexual contact since the time when petitioner discovers
respondent’s acts of infidelity;

15. That for all intents and purposes, the parties have been in separate
board and bedding for almost THREE (3) years already.

IV. ISSUES OF THE CASE

1. WHETHER OR NOT THE PETITIONER IS ENTITLED TO

THE DECREE OF LEGAL SEPARATION

2. WHETHER OR NOT THE PETITIONER IS ENTITLED TO

JUDICIAL SEPARATION OF PROPERTY

Memorandum Page 3 of 9
 V. LEGAL DISCUSSION

V.1. Sexual infidelity or perversion

As a ground for the decree of legal
separation

16. Here is a brief review on the law regarding legal separation as defined
under Executive Order no. 209, otherwise known as the Family Code of the
Philippines. The same law took effect on August 3, 1988, as clarified under
Memorandum Circular No. 85.

Article 55 of the Family Code thereof reads;

Article 55. A petition for legal separation may be filed on any

of the following grounds:
1. Repeated physical violence or grossly abusive conduct
directed against the petitioner, a common child, or a child of
the petitioner;
2. Physical violence or moral pressure to compel the petitioner
to change religious or political affiliation;
3. Attempt of respondent to corrupt or induce the petitioner, a
common child, or a child of the petitioner, to engage in
prostitution, or connivance in such corruption or inducement;
4. Final judgment sentencing the respondent to imprisonment
of more than six years, even if pardoned;
5. Drug addiction or habitual alcoholism of the respondent;
6. Lesbianism or homosexuality of the respondent;
7. Contracting by the respondent of a subsequent bigamous
marriage, whether in the Philippines or abroad;
8. Sexual infidelity or perversion;
9. Attempt by the respondent against the life of the petitioner;
or
10. Abandonment of petitioner by respondent without
justifiable cause for more than one year. For purposes of this
Article, the term “child” shall include a child by nature or by
adoption. (97a)

Memorandum Page 4 of 9
 17. Sexual infidelity or perversion as a ground for the decree of legal
separation is a drastic departure from the requirements that was previously
laid down under the Civil Code. Its introduction under the Family Code
clearly portrays its need and importance.

18. Though both adultery and concubinage no doubt are included in the
acts of sexual infidelity, other acts however even short of such is enough to
warrant a decree of legal separation.

19. Melencio S. Sta., Maria clearly pointed out that what stands an act to
qualify as sexual infidelity is whether or not the “acts committed by one
spouse would constitute a clear betrayal of the trust of his or her spouse by
having intimate love affairs with other persons.”1

20. In the instant case, it is true that there arise no issue as regards the
respondent being sent home by a man in a motorcycle so as to constitute
sexual infidelity per se. The fact however that she lied to the petitioner as to
who the man was, is something worth noting.

21. This is so because, while respondent claimed that the man who sent
her home was only a “habal-habal” driver, yet, her very own words
contradicts itself when it was found later on that the “habal-habal” driver,
was in fact Matt Portillano, a person whom respondent admits in her answer
to be her long-time friend.2

22. Verily, it is hard to understand the reason as to why there is a need for
the respondent to hide and deny the truth of identity of one Matt Portillano
to the petitioner, if after all their relationship is no more than just a long-
time friend.

23. More so, when the respondent had a quarrel with the petitioner which
leads her to left the conjugal house, she then went straight to Matt
Portillano’s house. Worthy of note here is the fact that, of all the friends she
might have still, she chooses to go to Matt Portillano knowing very well that
he was the reason for their misunderstanding and perhaps his husband’s
suspicion. This could only prove in a way that they are more than just a long-
time friend to speak off.

1
Page 358 of Melencio S. Sta., Maria , Jr book on Persons and Family relations
2
Paragraph 37a) of respondent’s answer “The imputation of respondent’s alleged lover was a long-time friend and
neighbour being a native of Bonbon, Cagayan de Oro City.”

Memorandum Page 5 of 9
 24. Instead of proving the petitioner that he was wrong about his suspicion
as regard Matt Portillano, she on the other only proves that such suspicion
has solid bases as what she did in turn aggravates the matter. Clearly,
respondent’s actions was nothing more than adding insult to injury.
Something which a faithful, loyal and loving wife would never do to her
husband.

25. With the foregoing facts, worsts has come to the petitioner when he
was able to search the Facebook account of Matt Portilla and found pictures
therein that have proved his suspicions.

26. First is the picture that portrays Matt Portillano in his room and second
is the picture that portrays the respondent in the same room as that of latter.
No doubt that the respondent has been in the room of Matt Portiallano, the
only question therefore is what did she or they have done in the same room
other than taking pictures. Albeit we could conclude that perhaps they were
just saying the “our father,” however reason and public policy dictates that,
a decent and loving wife in the first place by no means would have done what
she did. Such pictures are offered as evidenced for the petitioner and marked
as Exhs. “E” and “H” respectively.

27. Also, the intimate pose of the respondent and Matt Portillano as
reflected in the picture, which was also offered as evidence for the petitioner
and marked as Exh. “G” proves all the more the gospel truth as regards the
relationship of the respondent and that of Matt Portillano.

28. Granting arguendo that the acts of the respondent falls short of
adultery, still, such acts constitutes sexual infidelity as set forth under the
provisions of Family Code.

29. While it is true that the state values so much the sanctity of holy
matrimony and provides specific laws to protect it, when the prevailing
circumstances however is categorical that it is best for the parties to live
separately in bed and board, clear conscience would leave us nothing but to
grant the former.

30. All told, a degree of legal separation is thus proper in the instant case.

Memorandum Page 6 of 9
V.2. Judicial Separation of Property
As a necessary Consequence of Legal
Separation.

31.The effects of a decree of legal separation is laid down under Article 63

of the Family Code which provides to wit;;

Art. 63. The decree of legal separation shall have the following
effects:

(1) The spouses shall be entitled to live separately from each other,
but the marriage bonds shall not be severed;

(2) The absolute community or the conjugal partnership

shall be dissolved and liquidated but the offending
spouse shall have no right to any share of the net profits
earned by the absolute community or the conjugal
partnership, which shall be forfeited in accordance with
the provisions of Article 43(2);

(3) The custody of the minor children shall be awarded to the

innocent spouse, subject to the provisions of Article 213 of this
Code; and

(4) The offending spouse shall be disqualified from inheriting from

the innocent spouse by intestate succession. Moreover, provisions
in favor of the offending spouse made in the will of the innocent
spouse shall be revoked by operation of law. (106a)

32. The law is categorical, the absolute community or the conjugal

partnership of gains of the husband and wife as the case may be, shall
be dissolved and liquidated where there a degree of legal separation.

33. This is all the more bolstered by the Supreme Court in the case of
Macadangdang Vs. CA (108 SCRA 314) when it clearly explained the
effects of the final decree of legal separation to wit;

WE do not find merit in petitioner's submission that the

questioned decision had not become final and executory since
the law explicitly and clearly provides for the dissolution and
liquidation of the conjugal partnership of gains of the absolute
community of property as among the effects of the final decree of
legal separation.xxx

Xxx Such dissolution and liquidation are necessary

consequences of the final decree. This legal effect of the decree of
legal separation ipso facto or automatically follows, as an
inevitable incident of, the judgment decreeing legal separation—
for the purpose of determining the share of each spouse in the
conjugal assets. Xxx

Memorandum Page 7 of 9
 CONCLUDING STATEMENT

34. The courts are the last stronghold of the citizens for the protection of their
rights. Thus, although the state highly recognizes the importance of Holy
Matrimony and family, the courts are not mandated to come - up with
Decisions solely on the basis of protecting the same if to do so would
clearly give no justice where justice is due.

35. When the tide of the times seem to favor for an unlikely decision that
would cause injustice, the court must temper the times and render
justice just like the blind-folded lady of justice.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed

for that this Honorable Court will grant a decree of legal separation and
Orders the liquidation of the properties of the herein parties.

Other just and equitable relief under the foregoing are likewise being
prayed for.

Respectfully submitted.

Cagayan
de Oro City, Philippines, June 14, 2019.

PALASAN, GALEON, ECLEVIA and ASSOCIATES LAW OFFICE

Door 1, Goodwill Bldg., Rizal – Fernandez Sts., Cagayan de Oro City
palasanlawoffice@yahoo.com/ Contact Nos. (088) 851-2051/0906-509-
4613

By:

TIBURCIO M. PALASAN, JR.

ROLL NO. 37410
PTR NO: 4092142, 01-04-2019
IBP NO: 062651, 01-04-2019
Issued in Cagayan de Oro City
MCLE Compliance No.VI-0003957
Issued on November 3, 2017
tmpjr70@gmail.com

Memorandum Page 8 of 9
 By:

MICHAEL CARL L. ECLEVIA

(Collaborating Counsel)
ROLL NO. 59901
PTR NO: 4179731A, 02-13-2019
IBP NO: 068997, 01-18-2019
Issued in Cagayan de Oro City
MCLE Compliance No.VI-00096889
Issued on June 7, 2018
carleclevia.palasanlaw@gmail.com

COPY FURNISHED:
Office of the City Prosecutor ATTY. FERNANDO TEODULO
City Hall Cagayan de Oro City ORTIGOZA III
Received by._____________ Zone 1-B Crossing Iponan
Cagayan de Oro City
Received by._____________

(Registered mail due to distance)

Office of the Solicitor General

143 Amorsolo St., Legaspi Village,
Makati City

Registry Receipt

Memorandum Page 9 of 9