Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-26435

March 4, 1927

JUANARIA FRANCISCO, plaintiff-appellant,

vs.
LOPE TAYAO, defendant-appellee.
Roman Ozaeta for appellant.
The appellee in his own behalf.
MALCOLM, J.:
As rightly stated by counsel for the appellant in his well prepared brief, the present appeal raises only a question of
law, which is whether or not, under the facts, the plaintiff is entitled to a decree of divorce in accordance with the
Philippine Divorce Law. The related question resolutory of the appeal is whether or not the wife can secure a divorce
from the husband, where the latter has been convicted of adultery and not of concubinage, although the acts for
which the husband was convicted of adultery may also constitute concubinage.
Juanaria Francisco, the plaintiff, and Lope Tayao, the defendant, contracted marriage in the City of Manila in 1912.
They separated in 1917. The husband then removed to Zamboanga. There he was later prosecuted for having
committed adultery with a married woman named Bernardina Medrano, wife of Ambrosio Torres, at whose instance
the criminal complaint was instituted. As a result of that proceeding, Lope Tayao, together with his coaccused
Bernardina Medrano, was sentenced by the late Judge Ponciano Reyes to suffer three years, six months, and
twenty-one days imprisonment prision correccional, and to pay the costs. (Exhibit A.)
On these facts, the action of Juanaria Francisco, the plaintiff, against Lope Tayao, the defendant, to have the bonds
of matrimony between them dissolved was instituted in the Court of First Instance of Manila and was there denied
by Judge of First Instance Revilla. The trial judge based his decision principally on the point that the plaintiff was not
an innocent spouse within the meaning of sections 1 and 3 of the Divorce Law. This findings, as well as the
dismissal of the complaint, is challenged by the plaintiff on appeal.
In the Philippine Islands, the causes for divorce are prescribed by statute. (19 C. J.,36; Benedicto vs. De la Rama
[1903], 3 Phil., 34, reversed by the United States Supreme Court for other reasons). The grounds for divorce are
two: Adultery on the part of the wife or concubinage on the part of the husband. (Villanueva, La Ley de Divorcio, pp.
27, 46, and 47.) The Philippine Divorce Law, Act No. 2710, is emphatically clear in this respect. Section 1 of the law
reads: "A petition for divorce can only be filed for adultery on the part of the wife or concubinage on the part of the
husband . . . ." Note well the adverb "only" and the conjunctive "or." The same thought is again emphasized in
section 3 of the Divorce Law which provides that "The divorce may be claimed only by the innocent spouse,
provided there has been no condonation of or consent to the adultery or concubinage, as the case may be. . . . "
Later on comes section 8 providing that "A divorce shall not be granted without the guilt of the defendant being
established by final sentence in a criminal action"that is, in relation with section 1 of the same law, by final
sentence in a criminal action for adultery on the part of the wife or concubinage on the part of the husband. Act No.
2716, amendatory of article 437 of the Penal Code, adds nothing to the Divorce Law except as it clarifies the
meaning of concubinage.
Counsel argues along the line that the plaintiff is here the innocent spouse and that acts for which the defendant
was convicted of adultery also constitute concubinage. But the undeniable fact remains that the defendant was
prosecuted for, and was convicted of, the crime of adultery and not the crime of concubinage. The criminal case was
instituted on the complaint of the injured husband. It was not instituted by the injured wife which is essential for the

proper initiation of a prosecution for concubinage. (Albert, The Law on Crimes, pp. 406, 407; 3 ViadaCodigo Penal,
pp. 144 et seq.; U.S. vs. Rivera and Vitug [1914], 28 Phil., 13.)
In its last analysis, what counsel is asking this court to do is to sit as a trial court to convict the defendant of the
crime of concubinage, although no prosecution for the same has been instituted by the aggrieved wife and no
hearing has been had or judgment rendered in a lower court. This the appellate court cannot do. What counsel also
desires this court to do is to add a third cause for divorce to the law and to insert two words in section 1 of the
Divorce Law so that it will read: "A petition for divorce can only be filed for adultery on the part of the wife or
husband or concubinage on the part of the husband." This likewise the court cannot do. It would amount to judicial
amendment of the law.
For somewhat different reasons but with the same result, the judgement appealed from must be affirmed without
special pronouncement as to costs in this instance.
Avancea C.J., Johnson, Street, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 79284 November 27, 1987
FROILAN C. GANDIONCO, petitioner,
vs.
HON. SENEN C. PEARANDA, as Presiding Judge of the Regional Trial Court of Misamis Oriental, Branch
18, Cagayan de Oro City, and TERESITA S. GANDIONCO, respondents.

PADILLA, J.:
A special civil action for certiorari, with application for injunction, to annul (1) the Order of the respondent Judge,
dated 10 December 1986, ordering petitioner to pay support pendente lite to private respondent (his wife) and their
child, and (2) the Order of the same respondent Judge, dated 5 August 1987, denying petitioner's motion to suspend
hearings in the action for legal separation filed against him by private respondent as well as his motion to inhibit
respondent Judge from further hearing and trying the case.
On 29 May 1986, private respondent, the legal wife of the petitioner, filed with the Regional Trial Court of Misamis
Oriental, 10th Judicial District, Branch 18, in Cagayan de Oro City, presided over by respondent Judge, a complaint
against petitioner for legal separation, on the ground of concubinage, with a petition for support and payment of
damages. This case was docketed as Civil Case No. 10636. On 13 October 1986, private respondent also filed with
the Municipal Trial Court, General Santos City, a complaint against petitioner for concubinage, which was docketed
on 23 October 1986 as Criminal Case No. 15437111. On 14 November 1986, application for the provisional remedy
of support pendente lite, pending a decision in the action for legal separation, was filed by private respondent in the
civil case for legal separation. The respondent judge, as already stated, on 10 December 1986, ordered The
payment of support pendente lite.
In this recourse, petitioner contends that the civil action for legal separation and the incidents consequent thereto,
such as, application for support pendente lite, should be suspended in view of the criminal case for concubinage
filed against him the private respondent. In support of his contention, petitioner cites Art. III. Sec. 3 of the 1985
Rules on Criminal Procedure, which states:

SEC. 3. Other Civil action arising from offenses. Whenever the offended party shall have
instituted the civil action to enforce the civil liability arising from the offense. as contemplated in the
first Section 1 hereof, the following rules shall be observed:
(a) After a criminal action has been commenced the pending civil action arising from the same
offense shall be suspended, in whatever stage it may be found, until final judgment in the criminal
proceeding has been rendered. . . .
The civil action for legal separation, grounded as it is on concubinage, it is petitioner's position that such civil action
arises from, or is inextricably tied to the criminal action for concubinage, so that all proceedings related to legal
separation will have to be suspended to await conviction or acquittal for concubinage in the criminal case. Authority
for this position is this Court's decision in the case of Jerusalem vs. Hon. Roberto Zurbano. 1
Petitioner's contention is not correct.
In Jerusalem, the Court's statement to the effect that suspension of an action for legal separation would be proper if
an allegation of concubinage is made therein, relied solely on Sec. 1 of Rule 107 of the then provisions of the Rules
of Court on criminal procedure, to wit:
Sec. 1. Rules governing civil actions arising from offenses.-Except as otherwise provided by law, the
following rules shall he observed:
(a) When a criminal action is instituted, the civil action for recovery of civil liability arising from the
offense charged is impliedly instituted with the criminal action, unless the offended party expressly
waives the civil action or reserves his right to institute it separately;
(b) Criminal and civil actions arising from the same offense may be instituted separately, but after the
criminal action has been commenced the civil action can not be instituted until final judgment has
been rendered in the criminal action;
(c) After a criminal action has been commenced, no civil action arising from the same offense can
be prosecuted and the same shall be suspended in whatever stage it may be found until final
judgment in the criminal proceeding has been rendered ... (Emphasis supplied)
The provisions last quoted did not clearly state, as the 1985 Rules do, that the civil action to be suspended, with or
upon the filing of a criminal action, is one which is "to enforce the civil liability arising from the offense". In other
words, in view of the amendment under the 1985 Rules on Criminal Procedure, a civil action for legal separation,
based on concubinage, may proceed ahead of, or simultaneously with, a criminal action for concubinage, because
said civil action is not one "to enforce the civil liability arising from the offense" even if both the civil and criminal
actions arise from or are related to the same offense. Such civil action is one intended to obtain the right to live
separately, with the legal consequences thereof, such as, the dissolution of the conjugal partnership of gains,
custody of offsprings, support, and disqualification from inheriting from the innocent spouse, among others. As
correctly pointed out by the respondent Judge in his Order dated 5 August 1987:
The unreported case of JERUSALEM vs. Hon. Roberto Zurbano, Judge of CFI of Antique, et al., L11935, April 24, 1959 (105 Phil. 1277) is not controlling. It applied paragraph C of Sec. 1, of then
Rule 107 of the Rules of Court, which reads:
After a criminal action has been commenced, no civil action arising from the same
offense can be prosecuted and the same shall be suspended, in whatever stage it
may be found, until final judgment in the criminal proceeding has been rendered.
(Emphasis supplied)

The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal Procedure which refers to "civil actions to
enforce the civil liability arising from the offense" as contemplated in the first paragraph of Section 1 of Rule 111which is a civil action "for recovery of civil liability arising from the offense charged." Sec. 1, Rule 111, (1985) is
specific that it refers to civil action for the recovery of civil liability arising from the offense charged. Whereas, the old
Sec. 1 (c), Rule 107 simply referred to "Civil action arising from the offense."
As earlier noted this action for legal separation is not to recover civil liability, in the main, but is aimed at the conjugal
rights of the spouses and their relations to each other, within the contemplation of Articles 7 to 108, of the Civil
Code." 2
Petitioner also argues that his conviction for concubinage will have to be first secured before the action for legal
separation can prosper or succeed, as the basis of the action for legal separation is his alleged offense of
concubinage.
Petitioner's assumption is erroneous.
A decree of legal separation, on the ground of concubinage, may be issued upon proof by preponderance of
evidence in the action for legal separation. 3 No criminal proceeding or conviction is necessary. To this end, the doctrine
in Francisco vs. Tayao 4 has been modified, as that case was decided under Act. No. 2710, when absolute divorce was
then allowed and had for its grounds the same grounds for legal separation under the New Civil Code, with the
requirement, under such former law, that the guilt of defendant spouses had to be established by final judgment in a
criminal action. That requirement has not been reproduced or adopted by the framers of the present Civil Code, and the
omission has been uniformly accepted as a modification of the stringent rule in Francisco v. Tayao. 5
Petitioner's attempt to resist payment of support pendente lite to his wife must also fail, as we find no proof of grave
abuse of discretion on the part of the respondent Judge in ordering the same. Support pendente lite, as a remedy,
can be availed of in an action for legal separation, and granted at the discretion of the judge. 6 If petitioner finds the
amount of support pendente lite ordered as too onerous, he can always file a motion to modify or reduce the same. 7
Petitioner lastly seeks to have the respondent Judge disqualified from hearing the case, as the grant of
supportpendente lite and the denial of the motion to suspend hearings in the case, are taken by the petitioner as a
disregard of applicable laws and existing doctrines, thereby showing the respondent Judge's alleged manifest
partiality to private respondent.
Petitioner's contention is without merit. Divergence of opinions between a judge hearing a case and a party's
counsel, as to applicable laws and jurisprudence, is not a sufficient ground to disqualify the judge from hearing the
case, on the ground of bias and manifest partiality. This is more so, in this case, where we find the judge's
disposition of petitioner's motions to be sound and well-taken.
WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner.
SO ORDERED.
Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 153206

October 23, 2006

ONG ENG KIAM a.k.a. WILLIAM ONG, petitioner,

vs.
LUCITA G. ONG, respondent.

DECISION

AUSTRIA-MARTINEZ, J.:
Before this Court is a Petition for Review seeking the reversal of the Decision 1 of the Court of Appeals (CA) in CA
G.R. CV No. 59400 which affirmed in toto the Decision of the Regional Trial Court (RTC) Branch 41, Dagupan City
granting the petition for legal separation filed by herein respondent, as well as the Resolution 2 of the CA dated April
26, 2002 which denied petitioners motion for reconsideration.
Ong Eng Kiam, also known as William Ong (William) and Lucita G. Ong (Lucita) were married on July 13, 1975 at
the San Agustin Church in Manila. They have three children: Kingston, Charleston, and Princeton who are now all of
the age of majority.3
On March 21, 1996, Lucita filed a Complaint for Legal Separation under Article 55 par. (1) of the Family Code 4before
the Regional Trial Court (RTC) of Dagupan City, Branch 41 alleging that her life with William was marked by physical
violence, threats, intimidation and grossly abusive conduct. 5
Lucita claimed that: soon after three years of marriage, she and William quarreled almost every day, with physical
violence being inflicted upon her; William would shout invectives at her like "putang ina mo", "gago", "tanga", and he
would slap her, kick her, pull her hair, bang her head against concrete wall and throw at her whatever he could reach
with his hand; the causes of these fights were petty things regarding their children or their business; William would
also scold and beat the children at different parts of their bodies using the buckle of his belt; whenever she tried to
stop William from hitting the children, he would turn his ire on her and box her; on December 9, 1995, after she
protested with Williams decision to allow their eldest son Kingston to go to Bacolod, William slapped her and said,
"it is none of your business"; on December 14, 1995, she asked William to bring Kingston back from Bacolod; a
violent quarrel ensued and William hit her on her head, left cheek, eye, stomach, and arms; when William hit her on
the stomach and she bent down because of the pain, he hit her on the head then pointed a gun at her and asked
her to leave the house; she then went to her sisters house in Binondo where she was fetched by her other siblings
and brought to their parents house in Dagupan; the following day, she went to her parents doctor, Dr. Vicente
Elinzano for treatment of her injuries.6
William for his part denied that he ever inflicted physical harm on his wife, used insulting language against her, or
whipped the children with the buckle of his belt. While he admits that he and Lucita quarreled on December 9, 1995,
at their house in Jose Abad Santos Avenue, Tondo, Manila, he claimed that he left the same, stayed in their
Greenhills condominium and only went back to their Tondo house to work in their office below. In the afternoon of
December 14, 1995, their laundrywoman told him that Lucita left the house. 7
On January 5, 1998, the RTC rendered its Decision decreeing legal separation, thus:
WHEREFORE, premises considered, judgment is hereby rendered decreeing the legal separation of plaintiff
and defendant, with all the legal effects attendant thereto, particularly the dissolution and liquidation of the
conjugal partnership properties, for which purpose the parties are hereby ordered to submit a complete
inventory of said properties so that the Court can make a just and proper division, such division to be
embodied in a supplemental decision.
SO ORDERED.8

The RTC found that:

It is indubitable that plaintiff (Lucita) and defendant (William) had their frequent quarrels and
misunderstanding which made both of their lives miserable and hellish. This is even admitted by the
defendant when he said that there was no day that he did not quarrel with his wife. Defendant had regarded
the plaintiff negligent in the performance of her wifely duties and had blamed her for not reporting to him
about the wrongdoings of their children. (citations omitted)
These quarrels were always punctuated by acts of physical violence, threats and intimidation by the
defendant against the plaintiff and on the children. In the process, insulting words and language were
heaped upon her. The plaintiff suffered and endured the mental and physical anguish of these marital fights
until December 14, 1995 when she had reached the limits of her endurance. The more than twenty years of
her marriage could not have been put to waste by the plaintiff if the same had been lived in an atmosphere
of love, harmony and peace. Worst, their children are also suffering. As very well stated in plaintiffs
memorandum, "it would be unthinkable for her to throw away this twenty years of relationship, abandon the
comforts of her home and be separated from her children, whom she loves, if there exists no cause, which is
already beyond her endurance.9
William appealed to the CA which affirmed in toto the RTC decision. In its Decision dated October 8, 2001, the CA
found that the testimonies for Lucita were straightforward and credible and the ground for legal separation under Art.
55, par. 1 of the Family Code, i.e., physical violence and grossly abusive conduct directed against Lucita, were
adequately proven.10
As the CA explained:
The straightforward and candid testimonies of the witnesses were uncontroverted and credible. Dr.
Elinzanos testimony was able to show that the [Lucita] suffered several injuries inflicted by [William]. It is
clear that on December 14, 1995, she sustained redness in her cheek, black eye on her left eye, fist blow on
the stomach, blood clot and a blackish discoloration on both shoulders and a "bump" or "bukol" on her head.
The presence of these injuries was established by the testimonies of [Lucita] herself and her sister, Linda
Lim. The Memorandum/Medical Certificate also confirmed the evidence presented and does not deviate
from the doctors main testimony --- that [Lucita] suffered physical violence on [sic] the hands of her
husband, caused by physical trauma, slapping of the cheek, boxing and fist blows. The effect of the socalled alterations in the Memorandum/Medical Certificate questioned by [William] does not depart from the
main thrust of the testimony of the said doctor.
Also, the testimony of [Lucita] herself consistently and constantly established that [William] inflicted repeated
physical violence upon her during their marriage and that she had been subjected to grossly abusive
conduct when he constantly hurled invectives at her even in front of their customers and employees,
shouting words like, "gaga", "putang ina mo," tanga," and "you dont know anything."
These were further corroborated by several incidents narrated by Linda Lim who lived in their conjugal home
from 1989 to 1991. She saw her sister after the December 14, 1995 incident when she (Lucita) was fetched
by the latter on the same date. She was a witness to the kind of relationship her sister and [William] had
during the three years she lived with them. She observed that [William] has an "explosive temper, easily gets
angry and becomes very violent." She cited several instances which proved that William Ong indeed treated
her wife shabbily and despicably, in words and deeds.
xxx
That the physical violence and grossly abusive conduct were brought to bear upon [Lucita] by [William] have
been duly established by [Lucita] and her witnesses. These incidents were not explained nor controverted by
[William], except by making a general denial thereof. Consequently, as between an affirmative assertion and
a general denial, weight must be accorded to the affirmative assertion.
The grossly abusive conduct is also apparent in the instances testified to by [Lucita] and her sister. The
injurious invectives hurled at [Lucita] and his treatment of her, in its entirety, in front of their employees and

friends, are enough to constitute grossly abusive conduct. The aggregate behavior of [William] warrants
legal separation under grossly abusive conduct. x x x11
William filed a motion for reconsideration which was denied by the CA on April 26, 2002. 12
Hence the present petition where William claims that:
I
THE COURT OF APPEALS COMMITTED AN ERROR OF LAW IN DISREGARDING CLEAR EVIDENCE
THAT THE PETITION FOR LEGAL SEPARATION WAS INSTITUTED BY THE PRIVATE RESPONDENT
FOR THE SOLE PURPOSE OF REMOVING FROM PETITIONER THE CONTROL AND OWNERSHIP OF
THEIR CONJUGAL PROPERTIES AND TO TRANSFER THE SAME TO PRIVATE RESPONDENTS
FAMILY.
II
THE COURT OF APPEALS COMMITTED AN ERROR OF LAW IN DISREGARDING CLEAR EVIDENCE
REPUDIATING PRIVATE RESPONDENTS CLAIM OF REPEATED PHYSICAL VIOLENCE AND GROSSLY
ABUSIVE CONDUCT ON THE PART OF PETITIONER.13
William argues that: the real motive of Lucita and her family in filing the case is to wrest control and ownership of
properties belonging to the conjugal partnership; these properties, which include real properties in Hong Kong,
Metro Manila, Baguio and Dagupan, were acquired during the marriage through his (Williams) sole efforts; the only
parties who will benefit from a decree of legal separation are Lucitas parents and siblings while such decree would
condemn him as a violent and cruel person, a wife-beater and child abuser, and will taint his reputation, especially
among the Filipino-Chinese community; substantial facts and circumstances have been overlooked which warrant
an exception to the general rule that factual findings of the trial court will not be disturbed on appeal; the findings of
the trial court that he committed acts of repeated physical violence against Lucita and their children were not
sufficiently established; what took place were disagreements regarding the manner of raising and disciplining the
children particularly Charleston, Lucitas favorite son; marriage being a social contract cannot be impaired by mere
verbal disagreements and the complaining party must adduce clear and convincing evidence to justify legal
separation; the CA erred in relying on the testimonies of Lucita and her witnesses, her sister Linda Lim, and their
parents doctor, Dr. Vicente Elinzanzo, whose testimonies are tainted with relationship and fraud; in the 20 years of
their marriage, Lucita has not complained of any cruel behavior on the part of William in relation to their marital and
family life; William expressed his willingness to receive respondent unconditionally however, it is Lucita who
abandoned the conjugal dwelling on December 14, 1995 and instituted the complaint below in order to appropriate
for herself and her relatives the conjugal properties; the Constitution provides that marriage is an inviolable social
institution and shall be protected by the State, thus the rule is the preservation of the marital union and not its
infringement; only for grounds enumerated in Art. 55 of the Family Code, which grounds should be clearly and
convincingly proven, can the courts decree a legal separation among the spouses. 14
Respondent Lucita in her Comment, meanwhile, asserts that: the issues raised in the present petition are factual;
the findings of both lower courts rest on strong and clear evidence borne by the records; this Court is not a trier of
facts and factual findings of the RTC when confirmed by the CA are final and conclusive and may not be reviewed
on appeal; the contention of William that Lucita filed the case for legal separation in order to remove from William
the control and ownership of their conjugal properties and to transfer the same to Lucitas family is absurd; Lucita
will not just throw her marriage of 20 years and forego the companionship of William and her children just to serve
the interest of her family; Lucita left the conjugal home because of the repeated physical violence and grossly
abusive conduct of petitioner.15
Petitioner filed a Reply, reasserting his claims in his petition, 16 as well as a Memorandum where he averred for the
first time that since respondent is guilty of abandonment, the petition for legal separation should be denied following
Art. 56, par. (4) of the Family Code.17 Petitioner argues that since respondent herself has given ground for legal
separation by abandoning the family simply because of a quarrel and refusing to return thereto unless the conjugal
properties were placed in the administration of petitioners in-laws, no decree of legal separation should be issued in
her favor.18

Respondent likewise filed a Memorandum reiterating her earlier assertions. 19

We resolve to deny the petition.
It is settled that questions of fact cannot be the subject of a petition for review under Rule 45 of the Rules of Court.
The rule finds more stringent application where the CA upholds the findings of fact of the trial court. In such
instance, this Court is generally bound to adopt the facts as determined by the lower courts. 20
The only instances when this Court reviews findings of fact are:
(1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference
made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the
judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in
making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to
the admissions of both the appellant and the appellee; (7) when the findings are contrary to that of the trial
court; (8) when the findings are conclusions without citation of specific evidence on which they are based;
(9) when the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed
by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain
relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion. 21
As petitioner failed to show that the instant case falls under any of the exceptional circumstances, the general rule
applies.
Indeed, this Court cannot review factual findings on appeal, especially when they are borne out by the records or
are based on substantial evidence.22 In this case, the findings of the RTC were affirmed by the CA and are
adequately supported by the records.
As correctly observed by the trial court, William himself admitted that there was no day that he did not quarrel with
his wife, which made his life miserable, and he blames her for being negligent of her wifely duties and for not
reporting to him the wrongdoings of their children.23
Lucita and her sister, Linda Lim, also gave numerous accounts of the instances when William displayed violent
temper against Lucita and their children; such as: when William threw a steel chair at Lucita; 24 threw chairs at their
children;25 slapped Lucita and utter insulting words at her;26 use the buckle of the belt in whipping the
children;27 pinned Lucita against the wall with his strong arms almost strangling her, and smashed the flower vase
and brick rocks and moldings leaving the bedroom in disarray; 28 shouted at Lucita and threw a directory at her, in
front of Linda and the employees of their business, because he could not find a draft letter on his table; 29got mad at
Charleston for cooking steak with vetchin prompting William to smash the plate with steak and hit Charleston, then
slapped Lucita and shouted at her "putang ina mo, gago, wala kang pakialam, tarantado" when she sided with
Charleston;30 and the December 9 and December 14, 1995 incidents which forced Lucita to leave the conjugal
dwelling.31
Lucita also explained that the injuries she received on December 14, 1995, were not the first. As she related before
the trial court:
q. You stated on cross examination that the injuries you sustained on December 14, 1995 were the most
serious?
a. Unlike before I considered December 14, 1995 the very serious because before it is only on the arm and
black eye, but on this December 14, I suffered bruises in all parts of my body, sir.32
To these, all William and his witnesses, could offer are denials and attempts to downplay the said incidents. 33
As between the detailed accounts given for Lucita and the general denial for William, the Court gives more weight to
those of the former. The Court also gives a great amount of consideration to the assessment of the trial court
regarding the credibility of witnesses as trial court judges enjoy the unique opportunity of observing the deportment

of witnesses on the stand, a vantage point denied appellate tribunals. 34 Indeed, it is settled that the assessment of
the trial court of the credibility of witnesses is entitled to great respect and weight having had the opportunity to
observe the conduct and demeanor of the witnesses while testifying.35
In this case, the RTC noted that:
Williams denial and that of his witnesses of the imputation of physical violence committed by him could not
be given much credence by the Court. Since the office secretary Ofelia Rosal and the family laundrywoman
Rosalino Morco are dependent upon defendant for their livelihood, their testimonies may be tainted with bias
and they could not be considered as impartial and credible witnesses. So with Kingston Ong who lives with
defendant and depends upon him for support.36
Parenthetically, William claims that that the witnesses of Lucita are not credible because of their relationship with
her. We do not agree. Relationship alone is not reason enough to discredit and label a witnesss testimony as
biased and unworthy of credence37 and a witness relationship to one of the parties does not automatically affect the
veracity of his or her testimony.38 Considering the detailed and straightforward testimonies given by Linda Lim and
Dr. Vicente Elinzano, bolstered by the credence accorded them by the trial court, the Court finds that their
testimonies are not tainted with bias.
William also posits that the real motive of Lucita in filing the case for legal separation is in order for her side of the
family to gain control of the conjugal properties; that Lucita was willing to destroy his reputation by filing the legal
separation case just so her parents and her siblings could control the properties he worked hard for. The Court finds
such reasoning hard to believe. What benefit would Lucita personally gain by pushing for her parents and siblings
financial interests at the expense of her marriage? What is more probable is that there truly exists a ground for legal
separation, a cause so strong, that Lucita had to seek redress from the courts. As aptly stated by the RTC,
...it would be unthinkable for her to throw away this twenty years of relationship, abandon the comforts of her
home and be separated from her children whom she loves, if there exists no cause, which is already beyond
her endurance.39
The claim of William that a decree of legal separation would taint his reputation and label him as a wife-beater and
child-abuser also does not elicit sympathy from this Court. If there would be such a smear on his reputation then it
would not be because of Lucitas decision to seek relief from the courts, but because he gave Lucita reason to go to
court in the first place.
Also without merit is the argument of William that since Lucita has abandoned the family, a decree of legal
separation should not be granted, following Art. 56, par. (4) of the Family Code which provides that legal separation
shall be denied when both parties have given ground for legal separation. The abandonment referred to by the
Family Code is abandonment without justifiable cause for more than one year.40 As it was established that Lucita left
William due to his abusive conduct, such does not constitute abandonment contemplated by the said provision.
As a final note, we reiterate that our Constitution is committed to the policy of strengthening the family as a basic
social institution.41 The Constitution itself however does not establish the parameters of state protection to marriage
and the family, as it remains the province of the legislature to define all legal aspects of marriage and prescribe the
strategy and the modalities to protect it and put into operation the constitutional provisions that protect the
same.42 With the enactment of the Family Code, this has been accomplished as it defines marriage and the family,
spells out the corresponding legal effects, imposes the limitations that affect married and family life, as well as
prescribes the grounds for declaration of nullity and those for legal separation. 43 As Lucita has adequately proven
the presence of a ground for legal separation, the Court has no reason but to affirm the findings of the RTC and the
CA, and grant her the relief she is entitled to under the law.
WHEREFORE, the petition is DENIED for lack of merit.
Costs against petitioner.
SO ORDERED.

Panganiban, C.J. (Chairperson), Ynares-Santiago, Callejo, Sr., and Chico-Nazario, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-10033

December 28, 1956

BENJAMIN BUGAYONG, plaintiff-appellant,

vs.
LEONILA GINEZ, defendant-appellee.
Florencio Dumapias for appellant.
Numeriano Tanopo, Jr. for appellee.

FELIX, J.:
This is a case for legal separation filed in the Court of First Instance of Pangasinan wherein on motion of the
defendant, the case was dismissed. The order of dismissal was appealed to the Court of Appeals, but said Tribunal
certified the case to the Court on the ground that there is absolutely no question of fact involved, the motion being
predicated on the assumption as true of the very facts testified to by plaintiff-husband.
The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a serviceman in the United States Navy,
was married to defendant Leonila Ginez on August 27, 1949, at Asingan, Pangasinan, while on furlough leave.
Immediately after their marriage, the couple lived with their sisters who later moved to Sampaloc, Manila. After some
time, or about July, 1951, Leonila Ginez left the dwelling of her sister-in-law and informed her husband by letter that
she had gone to reside with her mother in Asingan, Pangasinan, from which place she later moved to Dagupan City
to study in a local college there.
As early as July, 1951, Benjamin Bugayong began receiving letters from Valeriana Polangco (plaintiff's sister-in-law)
and some from anonymous writers(which were not produced at the hearing) informing him of alleged acts of
infidelity of his wife which he did not even care to mention. On cross-examination, plaintiff admitted that his wife also
informed him by letter, which she claims to have destroyed, that a certain "Eliong" kissed her. All these
communications prompted him in October, 1951 to seek the advice of the Navy Chaplain as to the propriety of a
legal separation between him and his wife on account of the latter's alleged acts of infidelity, and he was directed to
consult instead the navy legal department.
In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife whom he met in the house of one
Mrs. Malalang, defendant's godmother. She came along with him and both proceeded to the house of Pedro
Bugayong, a cousin of the plaintiff-husband, where they stayed and lived for 2 nights and 1 day as husband and
wife. Then they repaired to the plaintiff's house and again passed the night therein as husband and wife. On the
second day, Benjamin Bugayong tried to verify from his wife the truth of the information he received that she had
committed adultery but Leonila, instead of answering his query, merely packed up and left, which he took as a
confirmation of the acts of infidelity imputed on her. After that and despite such belief, plaintiff exerted efforts to
locate her and failing to find her, he went to Bacarra, Ilocos Norte, "to soothe his wounded feelings".
On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of Pangasinan a complaint for legal
separation against his wife, Leonila Ginez, who timely filed an answer vehemently denying the averments of the
complaint and setting up affirmative defenses. After the issues were joined and convinced that a reconciliation was
not possible, the court set the case for hearing on June 9, 1953. Plaintiff's counsel announced that he was to

present 6 witnesses but after plaintiff-husband finished testifying in his favor, counsel for the defendant orally moved
for the dismissal of the complaint, but the Court ordered him to file a written motion to that effect and gave plaintiff
10 days to answer the same.
The motion to dismiss was predicted on the following grounds: (1) Assuming arguendo the truth of the allegations of
the commission of "acts of rank infidelity amounting to adultery", the cause of action, if any, is barred by the statute
of limitations; (2) That under the same assumption, the act charged have been condoned by the plaintiff-husband;
and (3) That the complaint failed to state a cause of action sufficient for this court to render a valid judgment.
The motion to dismiss was answered by plaintiff and the Court, considering only the second ground of the motion to
dismiss i. e., condonation, ordered the dismissal of the action. After the motion for reconsideration filed by plaintiff
was denied, the case was taken up for review to the Court of Appeals, appellant's counsel maintaining that the lower
court erred:
(a) In so prematurely dismissing the case;
(b) In finding that there were condonation on the part of plaintiff-appellant; and
(c) In entertaining condonation as a ground for dismissal inasmuch as same was not raised in the answer or
in a motion to dismiss.
As the questions raised in the brief were merely questions of law, the Court of Appeals certified the case to
Superiority.
The Civil Code provides:
ART. 97. A petition for legal separation may be filed:
(1) For adultery on the part of the wife and for concubinage for the part of the husband as defined on the
Penal Code; or
(2) An attempt by one spouse against the life of the other.
ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has been no
condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal
separation cannot by either of them. Collusion between the parties to obtain legal separation shall cause the
dismissal of the petition.
ART. 102. An action for legal separation cannot be filed except within one year from and after the date on
which the plaintiff became cognizant of the cause and within five years from and after the date when such
cause occurred.
As the only reason of the lower Court for dismissing the action was the alleged condonation of the charges of
adultery that the plaintiff-husband had preferred in the complaint against his wife, We will disregard the other 2
grounds of the motion to dismiss, as anyway they have not been raised in appellant's assignment of errors.
Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as stated in I
Bouver's Law Dictionary, p. 585, condonation is the "conditional forgiveness or remission, by a husband or wife of a
matrimonial offense which the latter has committed". It is to be noted, however, that in defendant's answer she
vehemently and vigorously denies having committed any act of infidelity against her husband, and even if We were
to give full weight to the testimony of the plaintiff, who was the only one that had the chance of testifying in Court
and link such evidence with the averments of the complaint, We would have to conclude that the facts appearing on
the record are far from sufficient to establish the charge of adultery, or, as the complaint states, of "acts of rank
infidelity amounting to adultery" preferred against the defendant. Certainly, the letter that plaintiff claims to have

received from his sister-in-law Valeriana Polangco, which must have been too vague and indefinite as to defendant's
infidelity to deserve its production in evidence; nor the anonymous letters which plaintiff also failed to present; nor
the alleged letter that, according to plaintiff, his wife addressed to him admitting that she had been kissed by one
Eliong, whose identity was not established and which admission defendant had no opportunity to deny because the
motion to dismiss was filed soon after plaintiff finished his testimony in Court, do not amount to anything that can be
relied upon.
But this is not a question at issue. In this appeal, We have to consider plaintiff's line of conduct under the
assumption that he really believed his wife guilty of adultery. What did he do in such state of mind. In August, 1952,
he went to Pangasinan and looked for his wife and after finding her they lived together as husband and wife for 2
nights and 1 day, after which he says that he tried to verify from her the truth of the news he had about her infidelity,
but failed to attain his purpose because his wife, instead of answering his query on the matter, preferred to desert
him, probably enraged for being subjected to such humiliation. And yet he tried to locate her, though in vain. Now,
do the husband's attitude of sleeping with his wife for 2 nights despite his alleged belief that she was unfaithful to
him, amount to a condonation of her previous and supposed adulterous acts? In the order appealed from, the
Court a quo had the following to say on this point:
In the hearing of the case, the plaintiff further testified as follows:
Q. Now Mr. Bugayong, you have filed this action for legal separation from your wife. Please tell this Hon.
Court why you want to separate from your wife? A. I came to know that my wife is committing adultery, I
consulted the chaplain and he told me to consult the legal adviser. (p. 11, t.s.n.)
Q. Did you finally locate her?--A. Four days later or on the fifth day since my arrival she went to the house of
our god-mother, and as a husband I went to her to come along with me in our house but she refused. (p. 12,
t.s.n.)
lawphil.net

Q. What happened next? A. I persuaded her to come along with me. She consented but I did not bring
her home but brought her to the house of my cousin Pedro Bugayong. (p. 12, t.s.n.)
Q. How long did you remain in the house of your cousin Pedro Bugayong? A. One day and one night. (p.
12. t.s.n.)
Q. That night when you stayed in the house of your cousin Pedro Bugayong as husband and wife, did you
slept together? A. Yes, sir. (p. 19, t.s.n.)
Q. On the next night, when you slept in your own house, did you sleep together also as husband and wife?
A. Yes, sir. (p. 19. t.s.n.)
Q. When was that? A. That was in August, 1952. (p. 19 t.s.n.)
Q. How many nights did you sleep together as husband and wife? A. Only two nights. (p. 19, t.s.n.)
The New Civil Code of the Philippines, in its Art. 97, says:
A petition for legal separation may be filed:
(1) For adultery on the part of the wife and concubinage on the part of the husband as defined on the Penal
Code.
and in its Art. 100 it says:

lawphil.net

The legal separation may be claimed only by the innocent spouse, provided there has been no condonation
of or consent to the adultery or concubinage. Where both spouses are offenders, legal separation cannot be

claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal
of the petition.
A detailed examination of the testimony of the plaintiff-husband, especially those portions quoted above,
clearly shows that there was a condonation on the part of the husband for the supposed "acts of rank
infidelity amounting to adultery" committed by defendant-wife. Admitting for the sake of argument that the
infidelities amounting to adultery were committed by the defendant, a reconciliation was effected between
her and the plaintiff. The act of the latter in persuading her to come along with him, and the fact that she
went with him and consented to be brought to the house of his cousin Pedro Bugayong and together they
slept there as husband and wife for one day and one night, and the further fact that in the second night they
again slept together in their house likewise as husband and wife all these facts have no other meaning in
the opinion of this court than that a reconciliation between them was effected and that there was a
condonation of the wife by the husband. The reconciliation occurred almost ten months after he came to
know of the acts of infidelity amounting to adultery.
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that "condonation is implied
from sexual intercourse after knowledge of the other infidelity. such acts necessary implied forgiveness. It is
entirely consonant with reason and justice that if the wife freely consents to sexual intercourse after she has
full knowledge of the husband's guilt, her consent should operate as a pardon of his wrong."
In Tiffany's Domestic and Family Relations, section 107 says:
Condonation. Is the forgiveness of a marital offense constituting a ground for divorce and bars the
right to a divorce. But it is on the condition, implied by the law when not express, that the wrongdoer
shall not again commit the offense; and also that he shall thereafter treat the other spouse with
conjugal kindness. A breach of the condition will revive the original offense as a ground for divorce.
Condonation may be express or implied.
It has been held in a long line of decisions of the various supreme courts of the different states of the U. S.
that 'a single voluntary act of sexual intercourse by the innocent spouse after discovery of the offense is
ordinarily sufficient to constitute condonation, especially as against the husband'. (27 Corpus Juris
Secundum, section 61 and cases cited therein).
In the lights of the facts testified to by the plaintiff-husband, of the legal provisions above quoted, and of the
various decisions above-cited, the inevitable conclusion is that the present action is untenable.
Although no acts of infidelity might have been committed by the wife, We agree with the trial judge that the conduct
of the plaintiff-husband above narrated despite his belief that his wife was unfaithful, deprives him, as alleged the
offended spouse, of any action for legal separation against the offending wife, because his said conduct comes
within the restriction of Article 100 of the Civil Code.
The only general rule in American jurisprudence is that any cohabitation with the guilty party, after the commission of
the offense, and with the knowledge or belief on the part of the injured party of its commission, will amount to
conclusive evidence of condonation; but this presumption may be rebutted by evidence (60 L. J. Prob. 73).
If there had been cohabitation, to what extent must it be to constitute condonation?
Single voluntary act of marital intercourse between the parties ordinarily is sufficient to constitute
condonation, and where the parties live in the same house, it is presumed that they live on terms of
matrimonial cohabitation (27 C. J. S., section 6-d).
A divorce suit will not be granted for adultery where the parties continue to live together after it was known
(Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac. 974) or there is sexual intercourse after knowledge of
adultery (Rogers vs. Rogers, 67 N. J. Eq. 534) or sleeping together for a single night (Toulson vs. Toulson,

50 Atl. 401, citing Phinizy vs. Phinizy, 114 S. E. 185, 154 Ga. 199; Collins vs. Collins, 193 So. 702), and
many others. The resumption of marital cohabitation as a basis of condonation will generally be inferred,
nothing appearing to the contrary, from the fact of the living together as husband and wife, especially as
against the husband (Marsh vs. Marsh, 14 N. J. Eq. 315).
There is no ruling on this matter in our jurisprudence but we have no reason to depart from the doctrines laid down
in the decisions of the various supreme courts of the United States above quoted.
There is no merit in the contention of appellant that the lower court erred in entertaining condonation as a ground for
dismissal inasmuch as same was not raised in the answer or in a motion to dismiss, because in the second ground
of the motion to dismiss. It is true that it was filed after the answer and after the hearing had been commenced, yet
that motion serves to supplement the averments of defendant's answer and to adjust the issues to the testimony of
plaintiff himself (section 4, Rule 17 of the Rules of Court).
Wherefore, and on the strength of the foregoing, the order appealed from is hereby affirmed, with costs against
appellant. It is so ordered.
Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L. and Endencia, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. L-30977 January 31, 1972

CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ, petitioner-appellant,
vs.
EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee.
Jose W. Diokno for petitioner-appellant.
D. G. Eufemio for respondent-appellee.

REYES J.B.L., J.:p

Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an order, dated 29 July 1969, of the
Juvenile and Domestic Relations Court of Manila, in its Civil Case No. 20387, dismissing said case for legal
separation on the ground that the death of the therein plaintiff, Carmen O. Lapuz Sy, which occurred during the
pendency of the case, abated the cause of action as well as the action itself. The dismissal order was issued over
the objection of Macario Lapuz, the heir of the deceased plaintiff (and petitioner herein) who sought to substitute the
deceased and to have the case prosecuted to final judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S. Eufemio, alleging,
in the main, that they were married civilly on 21 September 1934 and canonically on 30 September 1934; that they
had lived together as husband and wife continuously until 1943 when her husband abandoned her; that they had no
child; that they acquired properties during their marriage; and that she discovered her husband cohabiting with a
Chinese woman named Go Hiok at 1319 Sisa Street, Manila, on or about March 1949. She prayed for the issuance

of a decree of legal separation, which, among others, would order that the defendant Eufemio S. Eufemio should be
deprived of his share of the conjugal partnership profits.
In his second amended answer to the petition, herein respondent Eufemio S. Eufemio alleged affirmative and
special defenses, and, along with several other claims involving money and other properties, counter-claimed for the
declaration of nullity ab initio of his marriage with Carmen O. Lapuz Sy, on the ground of his prior and subsisting
marriage, celebrated according to Chinese law and customs, with one Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the parties adduced their respective evidence. But before the trial
could be completed (the respondent was already scheduled to present surrebuttal evidence on 9 and 18 June
1969), petitioner Carmen O. Lapuz Sy died in a vehicular accident on 31 May 1969. Counsel for petitioner duly
notified the court of her death.
On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal separation" 1 on two (2) grounds,
namely: that the petition for legal separation was filed beyond the one-year period provided for in Article 102 of the Civil
Code; and that the death of Carmen abated the action for legal separation.
On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by her father, Macario
Lapuz. Counsel for Eufemio opposed the motion.
On 29 July 1969, the court issued the order under review, dismissing the case. 2 In the body of the order, the court
stated that the motion to dismiss and the motion for substitution had to be resolved on the question of whether or not the
plaintiff's cause of action has survived, which the court resolved in the negative. Petitioner's moved to reconsider but the
motion was denied on 15 September 1969.
After first securing an extension of time to file a petition for review of the order of dismissal issued by the juvenile
and domestic relations court, the petitioner filed the present petition on 14 October 1969. The same was given due
course and answer thereto was filed by respondent, who prayed for the affirmance of the said order. 3
Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims, he did not pursue
them after the court below dismissed the case. He acquiesced in the dismissal of said counterclaims by praying for
the affirmance of the order that dismissed not only the petition for legal separation but also his counterclaim to
declare the Eufemio-Lapuz marriage to be null and void ab initio.
But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute for the lower court did not act on the
motion for substitution) stated the principal issue to be as follows:
When an action for legal separation is converted by the counterclaim into one for a declaration of
nullity of a marriage, does the death of a party abate the proceedings?
The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit to one for
declaration of nullity of a marriage, which is without basis, for even petitioner asserted that "the respondent has
acquiesced to the dismissal of his counterclaim" (Petitioner's Brief, page 22). Not only this. The petition for legal
separation and the counterclaim to declare the nullity of the self same marriage can stand independent and
separate adjudication. They are not inseparable nor was the action for legal separation converted into one for a
declaration of nullity by the counterclaim, for legal separation pre-supposes a valid marriage, while the petition for
nullity has a voidable marriage as a pre-condition.
The first real issue in this case is: Does the death of the plaintiff before final decree, in an action for legal separation,
abate the action? If it does, will abatement also apply if the action involves property rights? .
An action for legal separation which involves nothing more than the bed-and-board separation of the spouses (there
being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the Philippines recognizes this in
its Article 100, by allowing only the innocent spouse (and no one else) to claim legal separation; and in its Article

108, by providing that the spouses can, by their reconciliation, stop or abate the proceedings and even rescind a
decree of legal separation already rendered. Being personal in character, it follows that the death of one party to the
action causes the death of the action itself actio personalis moritur cum persona.
... When one of the spouses is dead, there is no need for divorce, because the marriage is
dissolved. The heirs cannot even continue the suit, if the death of the spouse takes place during the
course of the suit (Article 244, Section 3). The action is absolutely dead (Cass., July 27, 1871, D. 71.
1. 81; Cass. req., May 8, 1933, D. H. 1933, 332.") 4 .
Marriage is a personal relation or status, created under the sanction of law, and an action for divorce
is a proceeding brought for the purpose of effecting a dissolution of that relation. The action is one of
a personal nature. In the absence of a statute to the contrary, the death of one of the parties to such
action abates the action, for the reason that death has settled the question of separation beyond all
controversy and deprived the court of jurisdiction, both over the persons of the parties to the action
and of the subject-matter of the action itself. For this reason the courts are almost unanimous in
holding that the death of either party to a divorce proceeding, before final decree, abates the action.
1 Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72; Danforth v. Danforth, 111 Ill. 236; Matter of
Grandall, 196 N.Y. 127, 89 N.E. 578; 134 Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon v. Wilson, 73
Mich, 620, 41 N.W. 817; Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659; McCurley v. McCurley,
60 Md. 185, 45 Am. Rep. 717; Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A. 141. 5
The same rule is true of causes of action and suits for separation and maintenance (Johnson vs. Bates, Ark. 101
SW 412; 1 Corpus Juris 208).
A review of the resulting changes in property relations between spouses shows that they are solely the effect of the
decree of legal separation; hence, they can not survive the death of the plaintiff if it occurs prior to the decree. On
the point, Article 106 of the Civil Code provides: .
Art. 106. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not
be severed; .
(2) The conjugal partnership of gains or the absolute conjugal community of property shall be
dissolved and liquidated, but the offending spouse shall have no right to any share of the profits
earned by the partnership or community, without prejudice to the provisions of article 176;
(3) The custody of the minor children shall be awarded to the innocent spouse, unless otherwise
directed by the court in the interest of said minors, for whom said court may appoint a guardian;
(4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent
one shall be revoked by operation of law.
From this article it is apparent that the right to the dissolution of the conjugal partnership of gains (or of the absolute
community of property), the loss of right by the offending spouse to any share of the profits earned by the
partnership or community, or his disqualification to inherit by intestacy from the innocent spouse as well as the
revocation of testamentary provisions in favor of the offending spouse made by the innocent one, are all rights and
disabilities that, by the very terms of the Civil Code article, are vested exclusively in the persons of the spouses; and
by their nature and intent, such claims and disabilities are difficult to conceive as assignable or transmissible.
Hence, a claim to said rights is not a claim that "is not thereby extinguished" after a party dies, under Section 17,
Rule 3, of the Rules of Court, to warrant continuation of the action through a substitute of the deceased party.

Sec. 17. Death of party. After a party dies and the claim is not thereby extinguished, the court shall
order, upon proper notice, the legal representative of the deceased to appear and to be substituted
for the deceased, within a period of thirty (30) days, or within such time as may be granted...
The same result flows from a consideration of the enumeration of the actions that survive for or against
administrators in Section 1, Rule 87, of the Revised Rules of Court:
SECTION 1. Actions which may and which may not be brought against executor or administrator. No
action upon a claim for the recovery of money or debt or interest thereon shall be commenced
against the executor or administrator; but actions to recover real or personal property, or an interest
therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to
person or property, real or personal, may be commenced against him.
Neither actions for legal separation or for annulment of marriage can be deemed fairly included in the enumeration..
A further reason why an action for legal separation is abated by the death of the plaintiff, even if property rights are
involved, is that these rights are mere effects of decree of separation, their source being the decree itself; without
the decree such rights do not come into existence, so that before the finality of a decree, these claims are merely
rights in expectation. If death supervenes during the pendency of the action, no decree can be forthcoming, death
producing a more radical and definitive separation; and the expected consequential rights and claims would
necessarily remain unborn.
As to the petition of respondent-appellee Eufemio for a declaration of nullity ab initio of his marriage to Carmen
Lapuz, it is apparent that such action became moot and academic upon the death of the latter, and there could be
no further interest in continuing the same after her demise, that automatically dissolved the questioned union. Any
property rights acquired by either party as a result of Article 144 of the Civil Code of the Philippines 6 could be
resolved and determined in a proper action for partition by either the appellee or by the heirs of the appellant.
In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83, paragraph 2, of
the Civil Code, because the second marriage had been contracted with the first wife having been an absentee for
seven consecutive years, or when she had been generally believed dead, still the action for annulment became
extinguished as soon as one of the three persons involved had died, as provided in Article 87, paragraph 2, of the
Code, requiring that the action for annulment should be brought during the lifetime of any one of the parties
involved. And furthermore, the liquidation of any conjugal partnership that might have resulted from such voidable
marriage must be carried out "in the testate or intestate proceedings of the deceased spouse", as expressly
provided in Section 2 of the Revised Rule 73, and not in the annulment proceeding.
ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and Domestic Relations is hereby affirmed.
No special pronouncement as to costs.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and Makasiar, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 79955 January 27, 1989
IN THE MATTER OF THE PETITION FOR A WRIT OF HABEAS CORPUS OF MINOR ANGELIE ANNE C.
CERVANTES, NELSON L. CERVANTES and ZENAIDA CARREON CERVANTES, petitioners,

vs.
GINA CARREON FAJARDO and CONRADO FAJARDO, respondents.
Yolanda F. Lim for petitioners.
Voltaire C. Campomanes for respondents.
RESOLUTION

PADILLA, J.:
This is a petition for a writ of Habeas Corpus filed with this Court over the person of the minor Angelie Anne
Cervantes. In a resolution, dated 5 October 1987, the Court resolved to issue the writ returnable to the Executive
Judge, Regional Trial Court of Pasig at the hearing of 12 October 1987 at 8:30 a.m. Said Judge was directed to hear
the case and submit his report and recommendation to the Court.
On 3 December 1987, said Executive Judge, Regional Trial Court of Pasig submitted to the Court his report and
recommendation, also dated 3 December 1987.
It appears that the minor was born on 14 February 1987 to respondents Conrado Fajardo and Gina Carreon, who
are common-law husband and wife. Respondents offered the child for adoption to Gina Carreon's sister and brotherin-law, the herein petitioners Zenaida Carreon-Cervantes and Nelson Cervantes, spouses, who took care and
custody of the child when she was barely two (2) weeks old. An Affidavit of Consent to the adoption of the child by
herein petitioners, was also executed by respondent Gina Carreon on 29 April 1987. 1
The appropriate petition for adoption (Sp. Proc. No. 057-B) was filed by herein petitioners over the child before the
Regional Trial Court of Rizal, Fourth Judicial District, Branch 67 which, on 20 August 1987, rendered a
decision 2 granting the petition. The child was then known as Angelie Anne Fajardo. The court ordered that the child be
"freed from parental authority of her natural parents as well as from legal obligation and maintenance to them and that
from now on shall be, for all legal intents and purposes, known as Angelie Anne Cervantes, a child of herein petitioners
and capable of inheriting their estate ." 3
Sometime in March or April 1987, the adoptive parents, herein petitioners Nelson and Zenaida Cervantes, received
a letter from the respondents demanding to be paid the amount of P150,000.00, otherwise, they would get back
their child. Petitioners refused to accede to the demand.
As a result, on 11 September 1987, while petitioners were out at work, the respondent Gina Carreon took the child
from her "yaya" at the petitioners' residence in Angono, Rizal, on the pretext that she was instructed to do so by her
mother. Respondent Gina Carreon brought the child to her house in Paraaque. Petitioners thereupon demanded
the return of the child, but Gina Carreon refused, saying that she had no desire to give up her child for adoption and
that the affidavit of consent to the adoption she had executed was not fully explained to her. She sent word to the
petitioners that she will, however, return the child to the petitioners if she were paid the amount of P150,000.00.
Felisa Tansingco, the social worker who had conducted the case study on the adoption and submitted a report
thereon to the Regional Trial Court of Rizal in the adoption case, testified on 27 October 1987 before the Executive
Judge, Regional Trial Court of Pasig in connection with the present petition. She declared that she had interviewed
respondent Gina Carreon on 24 June 1987 in connection with the contemplated adoption of the child. During the
interview, said respondent manifested to the social worker her desire to have the child adopted by the petitioners. 4
In all cases involving the custody, care, education and property of children, the latter's welfare is paramount. The
provision that no mother shall be separated from a child under five (5) years of age, will not apply where the Court
finds compelling reasons to rule otherwise. 5 In all controversies regarding the custody of minors, the foremost

consideration is the moral, physical and social welfare of the child concerned, taking into account the resources and moral
as well as social standing of the contending parents. Never has this Court deviated from this criterion. 6

It is undisputed that respondent Conrado Fajardo is legally married to a woman other than respondent Gina
Carreon, and his relationship with the latter is a common-law husband and wife relationship. His open cohabitation
with co-respondent Gina Carreon will not accord the minor that desirable atmosphere where she can grow and
develop into an upright and moral-minded person. Besides, respondent Gina Carreon had previously given birth to
another child by another married man with whom she lived for almost three (3) years but who eventually left her and
vanished. For a minor (like Angelie Anne C. Cervantes) to grow up with a sister whose "father" is not her true father,
could also affect the moral outlook and values of said minor. Upon the other hand, petitioners who are legally
married appear to be morally, physically, financially, and socially capable of supporting the minor and giving her a
future better than what the natural mother (herein respondent Gina Carreon), who is not only jobless but also
maintains an illicit relation with a married man, can most likely give her.
Besides, the minor has been legally adopted by petitioners with the full knowledge and consent of respondents. A
decree of adoption has the effect, among others, of dissolving the authority vested in natural parents over the
adopted child, except where the adopting parent is the spouse of the natural parent of the adopted, in which case,
parental authority over the adopted shall be exercised jointly by both spouses. 7 The adopting parents have the right to
the care and custody of the adopted child 8 and exercise parental authority and responsibility over him. 9
ACCORDINGLY, and as recommended by the Executive Judge, Regional Trial Court of Pasig, Hon. Eutropio
Migrino, the Petition is GRANTED. The custody and care of the minor Angelie Anne Cervantes are hereby granted
to petitioners to whom they properly belong, and respondents are ordered (if they still have not) to deliver said minor
to the petitioners immediately upon notice hereof This resolution is immediately executory.
SO ORDERED.
Melencio-Herrera (Chairperson), Paras, Sarmiento and Regalado, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 115640 March 15, 1995

REYNALDO ESPIRITU and GUILLERMA LAYUG, petitioners,
vs.
COURT OF APPEALS and TERESITA MASAUDING, respondents.

MELO, J.:
This case concerns a seemingly void marriage and a relationship which went sour. The innocent victims are two
children horn out of the same union. Upon this Court now falls the not too welcome task of deciding the issue of
who, between the father and mother, is more suitable and better qualified in helping the children to grow into
responsible, well-adjusted, and happy young adulthood.

Petitioner Reynaldo Espiritu and respondent Teresita Masauding first met sometime in 1976 in Iligan City where
Reynaldo was employed by the National Steel Corporation and Teresita was employed as a nurse in a local
hospital. In 1977, Teresita left for Los Angeles, California to work as a nurse. She was able to acquire immigrant
status sometime later. In 1984, Reynaldo was sent by his employer, the National Steel Corporation, to Pittsburgh,
Pennsylvania as its liaison officer and Reynaldo and Teresita then began to maintain a common law relationship of
husband and wife. On August 16, 1986, their daughter, Rosalind Therese, was born. On October 7, 1987, while they
were on a brief vacation in the Philippines, Reynaldo and Teresita got married, and upon their return to the United
States, their second child, a son, this time, and given the name Reginald Vince, was born on January 12, 1988.
The relationship of the couple deteriorated until they decided to separate sometime in 1990. Teresita blamed
Reynaldo for the break-up, stating he was always nagging her about money matters. Reynaldo, on the other hand,
contended that Teresita was a spendthrift, buying expensive jewelry and antique furniture instead of attending to
household expenses.
Instead of giving their marriage a second chance as allegedly pleaded by Reynaldo, Teresita left Reynaldo and the
children and went back to California. She claims, however, that she spent a lot of money on long distance telephone
calls to keep in constant touch with her children.
Reynaldo brought his children home to the Philippines, but because his assignment in Pittsburgh was not yet
completed, he was sent back by his company to Pittsburgh. He had to leave his children with his sister, co-petitioner
Guillerma Layug and her family.
Teresita claims that she did not immediately follow her children because Reynaldo filed a criminal case for bigamy
against her and she was afraid of being arrested. The judgment of conviction in the bigamy case was actually
rendered only on September 29, 1994. (Per Judge Harriet O. Demetriou, Branch 70, RTC, Pasig, pp. 210222,Rollo). Teresita, meanwhile, decided to return to the Philippines and on December 8, 1992 and filed the petition
for a writ of habeas corpus against herein two petitioners to gain custody over the children, thus starting the whole
proceedings now reaching this Court.
On June 30, 1993, the trial court dismissed the petition for habeas corpus. It suspended Teresita's parental authority
over Rosalind and Reginald and declared Reynaldo to have sole parental authority over them but with rights of
visitation to be agreed upon by the parties and to be approved by the Court.
On February 16, 1994, the Court of Appeals per Justice Isnani, with Justices de Pano and Ibay-Somera concurring,
reversed the trial court's decision. It gave custody to Teresita and visitation rights on weekends to Reynaldo.
Petitioners now come to this Court on a petition for review, in the main contending that the Court of Appeals
disregarded the factual findings of the trial court; that the Court of Appeals further engaged in speculations and
conjectures, resulting in its erroneous conclusion that custody of the children should be given to respondent
Teresita.
We believe that respondent court resolved the question of custody over the children through an automatic and blind
application of the age proviso of Article 363 of the Civil Code which reads:
Art. 363. In all questions on the care, custody, education and property of the children, the latter's
welfare shall be paramount. No mother shall be separated from her child under seven years of age,
unless the court finds compelling reasons for such measure.
and of Article 213 of the Family Code which in turn provides:
Art. 213. In case of separation of the parents parental authority shall be exercised by the parent
designated by the Court. The Court shall take into account all relevant considerations, especially the
choice of the child over seven years of age unless the parent chosen is unfit.

The decision under review is based on the report of the Code Commission which drafted Article 213 that a child
below seven years still needs the loving, tender care that only a mother can give and which, presumably, a father
cannot give in equal measure. The commentaries of a member of the Code Commission, former Court of Appeals
Justice Alicia Sempio-Diy, in a textbook on the Family Code, were also taken into account. Justice Diy believes that
a child below seven years should still be awarded to her mother even if the latter is a prostitute or is unfaithful to her
husband. This is on the theory that moral dereliction has no effect on a baby unable to understand such action.
(Handbook on the Family Code of the Philippines, 1988 Ed., p. 297.)
The Court of Appeals was unduly swayed by an abstract presumption of law rather than an appreciation of relevant
facts and the law which should apply to those facts. The task of choosing the parent to whom custody shall be
awarded is not a ministerial function to be determined by a simple determination of the age of a minor child.
Whether a child is under or over seven years of age, the paramount criterion must always be the child's interests.
Discretion is given to the court to decide who can best assure the welfare of the child, and award the custody on the
basis of that consideration. In Unson III vs. Navarro (101 SCRA 183 [1980]), we laid down the rule that "in all
controversies regarding the custody of minors, the sole and foremost consideration is the physical, education, social
and moral welfare of the child concerned, taking into account the respective resources and social and moral
situations of the contending parents", and in Medina vs. Makabali (27 SCRA 502 [1969]), where custody of the
minor was given to a non-relative as against the mother, then the country's leading civilist, Justice J.B.L. Reyes,
explained its basis in this manner:
. . . While our law recognizes the right of a parent to the custody of her child, Courts must not lose
sight of the basic principle that "in all questions on the care, custody, education and property of
children, the latter's welfare shall be paramount" (Civil Code of the Philippines. Art. 363), and that for
compelling reasons, even a child under seven may be ordered separated from the mother (do). This
is as it should be, for in the continual evolution of legal institutions, the patria potestas has been
transformed from the jus vitae ac necis (right of life and death) of the Roman law, under which the
offspring was virtually a chattel of his parents into a radically different institution, due to the influence
of Christian faith and doctrines. The obligational aspect is now supreme. As pointed out by Puig
Pena, now "there is no power, but a task; no complex of rights (of parents) but a sum of duties; no
sovereignty, but a sacred trust for the welfare of the minor."
As a result, the right of parents to the company and custody of their children is but ancillary to the
proper discharge of parental duties to provide the children with adequate support, education, moral,
intellectual and civic training and development (Civil Code, Art. 356).
(pp. 504-505.)
In ascertaining the welfare and best interests of the child, courts are mandated by the Family Code to take into
account all relevant considerations. If a child is under seven years of age, the law presumes that the mother is the
best custodian. The presumption is strong but it is not conclusive. It can be overcome by "compelling reasons". If a
child is over seven, his choice is paramount but, again, the court is not bound by that choice. In its discretion, the
court may find the chosen parent unfit and award custody to the other parent, or even to a third party as it deems fit
under the circumstances.
In the present case, both Rosalind and Reginald are now over seven years of age. Rosalind celebrated her seventh
birthday on August 16, 1993 while Reginald reached the same age on January 12, 1995. Both are studying in
reputable schools and appear to be fairly intelligent children, quite capable of thoughtfully determining the parent
with whom they would want to live. Once the choice has been made, the burden returns to the court to investigate if
the parent thus chosen is unfit to assume parental authority and custodial responsibility.
Herein lies the error of the Court of Appeals. Instead of scrutinizing the records to discover the choice of the children
and rather than verifying whether that parent is fit or unfit, respondent court simply followed statutory presumptions
and general propositions applicable to ordinary or common situations. The seven-year age limit was mechanically
treated as an arbitrary cut off period and not a guide based on a strong presumption.

A scrutiny of the pleadings in this case indicates that Teresita, or at least, her counsel are more intent on
emphasizing the "torture and agony" of a mother separated from her children and the humiliation she suffered as a
result of her character being made a key issue in court rather than the feelings and future, the best interests and
welfare of her children. While the bonds between a mother and her small child are special in nature, either parent,
whether father or mother, is bound to suffer agony and pain if deprived of custody. One cannot say that his or her
suffering is greater than that of the other parent. It is not so much the suffering, pride, and other feelings of either
parent but the welfare of the child which is the paramount consideration.
We are inclined to sustain the findings and conclusions of the regional trial court because it gave greater attention to
the choice of Rosalind and considered in detail all the relevant factors bearing on the issue of custody.
When she was a little over 5 years old, Rosalind was referred to a child psychologist, Rita Flores Macabulos, to
determine the effects of uprooting her from the Assumption College where she was studying. Four different tests
were administered. The results of the tests are quite revealing. The responses of Rosalind about her mother were
very negative causing the psychologist to delve deeper into the child's anxiety. Among the things revealed by
Rosalind was an incident where she saw her mother hugging and kissing a "bad" man who lived in their house and
worked for her father. Rosalind refused to talk to her mother even on the telephone. She tended to be emotionally
emblazed because of constant fears that she may have to leave school and her aunt's family to go back to the
United States to live with her mother. The 5-1/2 page report deals at length with feelings of insecurity and anxiety
arising from strong conflict with the mother. The child tried to compensate by having fantasy activities. All of the 8
recommendations of the child psychologist show that Rosalind chooses petitioners over the private respondent and
that her welfare will be best served by staying with them (pp. 199-205, Rollo).
At about the same time, a social welfare case study was conducted for the purpose of securing the travel clearance
required before minors may go abroad. Social Welfare Officer Emma D. Estrada Lopez, stated that the child
Rosalind refused to go back to the United States and be reunited with her mother. She felt unloved and uncared for.
Rosalind was more attached to her Yaya who did everything for her and Reginald. The child was found suffering
from emotional shock caused by her mother's infidelity. The application for travel clearance was recommended for
denial (pp. 206-209, Rollo).
Respondent Teresita, for her part, argues that the 7-year age reference in the law applies to the date when the
petition for a writ of habeas corpus is filed, not to the date when a decision is rendered. This argument is flawed.
Considerations involving the choice made by a child must be ascertained at the time that either parent is given
custody over the child. The matter of custody is not permanent and unalterable. If the parent who was given custody
suffers a future character change and becomes unfit, the matter of custody can always be re-examined and
adjusted (Unson III v. Navarro, supra, at p. 189). To be sure, the welfare, the best interests, the benefit, and the
good of the child must be determined as of the time that either parent is chosen to be the custodian. At the present
time, both children are over 7 years of age and are thus perfectly capable of making a fairly intelligent choice.
According to respondent Teresita, she and her children had tearful reunion in the trial court, with the children crying,
grabbing, and embracing her to prevent the father from taking them away from her. We are more inclined to believe
the father's contention that the children ignored Teresita in court because such an emotional display as described by
Teresita in her pleadings could not have been missed by the trial court. Unlike the Justices of the Court of Appeals
Fourth Division, Judge Lucas P. Bersamin personally observed the children and their mother in the courtroom. What
the Judge found is diametrically opposed to the contentions of respondent Teresita. The Judge had this to say on
the matter.
And, lastly, the Court cannot look at petitioner [Teresita] in similar light, or with more understanding,
especially as her conduct and demeanor in the courtroom (during most of the proceedings) or
elsewhere (but in the presence of the undersigned presiding judge) demonstrated her ebulent
temper that tended to corroborate the alleged violence of her physical punishment of the children
(even if only for ordinary disciplinary purposes) and emotional instability, typified by her failure (or
refusal?) to show deference and respect to the Court and the other parties (pp. 12-13, RTC
Decision)

Respondent Teresita also questions the competence and impartiality of the expert witnesses. Respondent court, in
turn, states that the trial court should have considered the fact that Reynaldo and his sister, herein petitioner
Guillerma Layug, hired the two expert witnesses. Actually, this was taken into account by the trial court which stated
that the allegations of bias and unfairness made by Teresita against the psychologist and social worker were not
substantiated.
The trial court stated that the professional integrity and competence of the expert witnesses and the objectivity of
the interviews were unshaken and unimpeached. We might add that their testimony remain uncontroverted. We also
note that the examinations made by the experts were conducted in late 1991, well over a year before the filing by
Teresita of the habeas corpus petition in December, 1992. Thus, the examinations were at that time not intended to
support petitioners' position in litigation, because there was then not even an impending possibility of one. That they
were subsequently utilized in the case a quo when it did materialize does not change the tenor in which they were
first obtained.
Furthermore, such examinations, when presented to the court must be construed to have been presented not to
sway the court in favor of any of the parties, but to assist the court in the determination of the issue before it. The
persons who effected such examinations were presented in the capacity of expert witnesses testifying on matters
within their respective knowledge and expertise. On this matter, this Court had occasion to rule in the case of Sali
vs. Abukakar, et al. (17 SCRA 988 [1966]).
The fact that, in a particular litigation, an NBI expert examines certain contested documents, at the
request, not of a public officer or agency of the Government, but of a private litigant, does not
necessarily nullify the examination thus made. Its purpose, presumably, to assist the court having
jurisdiction over said litigation, in the performance of its duty to settle correctly the issues relative to
said documents. Even a non-expert private individual may examine the same, if there are facts
within his knowledge which may help, the court in the determination of said issue. Such examination,
which may properly be undertaken by a non-expert private individual, does not, certainly become
null and void when the examiner is an expert and/or an officer of the NBI.
(pp. 991-992.)
In regard to testimony of expert witnesses it was held in Salomon, et al. vs. Intermediate Appellate Court, et al. (185
SCRA 352 [1990]):
. . . Although courts are not ordinarily bound by expert testimonies, they may place whatever weight
they choose upon such testimonies in accordance with the facts of the case. The relative weight and
sufficiency of expert testimony is peculiarly within the province of the trial court to decide,
considering the ability and character of the witness, his actions upon the witness stand, the weight
and process of the reasoning by which he has supported his opinion, his possible bias in favor of the
side for whom he testifies, the fact that he is a paid witness, the relative opportunities for study and
observation of the matters about which he testifies, and any other matters which reserve to
illuminate his statements. The opinion of the expert may not be arbitrarily rejected; it is to be
considered by the court in view of all the facts and circumstances in the case and when common
knowledge utterly fails, the expert opinion may be given controlling effect (20 Am. Jur., 1056-1058).
The problem of the credibility of the expert witness and the evaluation of his testimony is left to the
discretion of the trial court whose ruling thereupon is not reviewable in the absence of an abuse of
that discretion.
(p. 359)
It was in the exercise of this discretion, coupled with the opportunity to assess the witnesses' character and to
observe their respective demeanor that the trial court opted to rely on their testimony, and we believe that the trial
court was correct in its action.

Under direct examination an February 4, 1993, Social Worker Lopez stated that Rosalind and her aunt were about
to board a plane when they were off-loaded because there was no required clearance. They were referred to her
office, at which time Reginald was also brought along and interviewed. One of the regular duties of Social Worker
Lopez in her job appears to be the interview of minors who leave for abroad with their parents or other persons. The
interview was for purposes of foreign travel by a 5-year old child and had nothing to do with any pending litigation.
On cross-examination, Social Worker Lopez stated that her assessment of the minor's hatred for her mother was
based on the disclosures of the minor. It is inconceivable, much less presumable that Ms. Lopez would compromise
her position, ethics, and the public trust reposed on a person of her position in the course of doing her job by falsely
testifying just to support the position of any litigant.
The psychologist, Ms. Macabulos, is a B.S. magna cum laude graduate in Psychology and an M.A. degree holder
also in Psychology with her thesis graded "Excellent". She was a candidate for a doctoral degree at the time of the
interview. Petitioner Reynaldo may have shouldered the cost of the interview but Ms. Macabulos services were
secured because Assumption College wanted an examination of the child for school purposes and not because of
any litigation. She may have been paid to examine the child and to render a finding based on her examination, but
she was not paid to fabricate such findings in favor of the party who retained her services. In this instance it was not
even petitioner Reynaldo but the school authorities who initiated the same. It cannot be presumed that a
professional of her potential and stature would compromise her professional standing.
Teresita questions the findings of the trial court that:
1. Her morality is questionable as shown by her marrying Reynaldo at the time she had a subsisting
marriage with another man.
2. She is guilty of grave indiscretion in carrying on a love affair with one of the Reynaldo's fellow
NSC employees.
3. She is incapable of providing the children with necessities and conveniences commensurate to
their social standing because she does not even own any home in the Philippines.
4. She is emotionally unstable with ebullient temper.
It is contended that the above findings do not constitute the compelling reasons under the law which would justify
depriving her of custody over the children; worse, she claims, these findings are non-existent and have not been
proved by clear and convincing evidence.
Public and private respondents give undue weight to the matter of a child under 7 years of age not to be separated
from the mother, without considering what the law itself denominates as compelling reasons or relevant
considerations to otherwise decree. In the Unson III case, earlier mentioned, this Court stated that it found no
difficulty in not awarding custody to the mother, it being in the best interest of the child "to be freed from the
obviously unwholesome, not
to say immoral influence, that the situation where [the mother] had placed herself . . . might create in the moral and
social outlook of [the child] who was in her formative and most impressionable stage . . ."
Then too, it must be noted that both Rosalind and Reginald are now over 7 years of age. They understand the
difference between right and wrong, ethical behavior and deviant immorality. Their best interests would be better
served in an environment characterized by emotional stability and a certain degree of material sufficiency. There is
nothing in the records to show that Reynaldo is an "unfit" person under Article 213 of the Family Code. In fact, he
has been trying his best to give the children the kind of attention and care which the mother is not in a position to
extend.
The argument that the charges against the mother are false is not supported by the records. The findings of the trial
court are based on evidence.

Teresita does not deny that she was legally married to Roberto Lustado on December 17, 1984 in California (p. 13,
Respondent's Memorandum; p. 238, Rollo; pp. 11, RTC Decision). Less than a year later, she had already driven
across the continental United States to commence living with another man, petitioner Reynaldo, in Pittsburgh. The
two were married on October 7, 1987. Of course, to dilute this disadvantage on her part, this matter of her having
contracted a bigamous marriage later with Reynaldo, Teresita tried to picture Reynaldo as a rapist, alleging further
that she told Reynaldo about her marriage to Lustado on the occasion when she was raped by Reynaldo.
Expectedly, Judge Harriet Demetriou of the Pasig RTC lent no weight to such tale. And even if this story were given
credence, it adds to and not subtracts from the conviction of this Court about Teresita's values. Rape is an insidious
crime against privacy. Confiding to one's potential rapist about a prior marriage is not a very convincing indication
that the potential victim is averse to the act. The implication created is that the act would be acceptable if not for the
prior marriage.
More likely is Reynaldo's story that he learned of the prior marriage only much later. In fact, the rape incident itself is
unlikely against a woman who had driven three days and three nights from California, who went straight to the
house of Reynaldo in Pittsburgh and upon arriving went to bed and, who immediately thereafter started to live with
him in a relationship which is marital in nature if not in fact.
Judge Bersamin of the court a quo believed the testimony of the various witnesses that while married to Reynaldo,
Teresita entered into an illicit relationship with Perdencio Gonzales right there in the house of petitioner Reynaldo
and respondent Teresita. Perdencio had been assigned by the National Steel Corporation to assist in the project in
Pittsburgh and was staying with Reynaldo, his co-employee, in the latter's house. The record shows that the
daughter Rosalind suffered emotional disturbance caused by the traumatic effect of seeing her mother hugging and
kissing a boarder in their house. The record also shows that it was Teresita who left the conjugal home and the
children, bound for California. When Perdencio Gonzales was reassigned to the Philippines, Teresita followed him
and was seen in his company in a Cebu hotel, staying in one room and taking breakfast together. More significant is
that letters and written messages from Teresita to Perdencio were submitted in evidence (p.12, RTC Decision).
The argument that moral laxity or the habit of flirting from one man to another does not fall under "compelling
reasons" is neither meritorious nor applicable in this case. Not only are the children over seven years old and their
clear choice is the father, but the illicit or immoral activities of the mother had already caused emotional
disturbances, personality conflicts, and exposure to conflicting moral values, at least in Rosalind. This is not to
mention her conviction for the crime of bigamy, which from the records appears to have become final (pp. 210222, Rollo).
Respondent court's finding that the father could not very well perform the role of a sole parent and substitute mother
because his job is in the United States while the children will be left behind with their aunt in the Philippines is
misplaced. The assignment of Reynaldo in Pittsburgh is or was a temporary one. He was sent there to oversee the
purchase of a steel mill component and various equipment needed by the National Steel Corporation in the
Philippines. Once the purchases are completed, there is nothing to keep him there anymore. In fact, in a letter dated
January 30, 1995, Reynaldo informs this Court of the completion of his assignment abroad and of his permanent
return to the Philippines (ff.
p. 263, Rollo).
The law is more than satisfied by the judgment of the trial court. The children are now both over seven years old.
Their choice of the parent with whom they prefer to stay is clear from the record. From all indications, Reynaldo is a
fit person, thus meeting the two requirements found in the first paragraph of Article 213 of the Family Code. The
presumption under the second paragraph of said article no longer applies as the children are over seven years.
Assuming that the presumption should have persuasive value for children only one or two years beyond the age of
seven years mentioned in the statute, there are compelling reasons and relevant considerations not to grant custody
to the mother. The children understand the unfortunate shortcomings of their mother and have been affected in their
emotional growth by her behavior.
WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals is reversed and set aside,
and the decision of Branch 96 of the Regional Trial Court of the National Capital Judicial Region stationed in

Quezon City and presided over by the Honorable Lucas P. Bersamin in its Civil Case No. Q-92-14206 awarding
custody of the minors Rosalind and Reginald Espiritu to their father, Reynaldo Espiritu, is reinstated. No special
pronouncement is made as to costs.
SO ORDERED.
Feliciano, Romero, Vitug and Francisco, JJ., concur.