Tender Age Presumption Rule

PABLO-GUALBERTO V. GUALBERTO

GR no. 154994 June 28, 2005

Facts:
Crisanto Rafaelito G. Gualberto V filed before the RTC a petition for declaration of
nullity of his marriage to Joycelyn w/ an ancillary prayer for custody pendente lite of their
almost 4 year old son. Jocelyn brought with her their son when she left their conjugal
home.

Consequently, the petition was granted by the RTC due to the failure of Jocelyn to
appear despite several notice sent to her known address. A house helper testified that
she doesnt care about the child, that she even saw her slapping her son. Another
witness said that she was having a relationship with a person of the same gender as
hers.

The Court of Appeals, however, reversed the decision of the RTC and placed the child
under the custody of the mother.

Issue:
Whether or not the custody of the minor child should be awarded to the mother.

Ruling:
Crisanto failed to present sufficient evidence to prove that Joycelyn is unfit to perform
her obligations as a mother to the child.

No evidence that the son was exposed to the mothers alleged sexual proclivities
(lesbian) or that his proper moral and psychological development suffered as a result

Article 213 of the Family Code provided: Art 213. In case of separation of parents
parental authority shall be exercised by the parent designated by the court. The court
shall take into account all relevant consideration, especially the choice of the child over
seven years of age, unless the parent chosen is unfit.

No child under seven yrs of age shall be separated from the mother unless the court
finds compelling reasons to order otherwise,
This Court has held that when the parents separated, legally or otherwise, the foregoing
provision governs the custody of their child. Article 213 takes its bearing from Article
363 of the Civil Code, w/c reads:
Art 363. In all question on the care, custody, education and property of children, the
latter welfare shall be paramount. No mother shall be separated from her child under
seven years of age, unless the court finds compelling reason for such measure.
Acts contra bonos mores

WASSMER V. VELEZ

GR no. L-20089 February 19, 1993

Facts:
Francisco Velez and Beatriz Wassmer decided to marry each other but on the day of
the marriage, September 4, 1954, Francisco did not appear at the wedding ceremony
and instead left a note for her bride-to-be that they should postpone the wedding
because his mother does not like her. But Francisco was never seen again.

Beatriz then filed a suit against Velez but he was rendered in default for failing to appear
before the hearing despite several notice sent to his address. The court tried to
convince both parties to come to a compromise agreement or an amicable settlement
but the efforts did not yield.

Issue:
Whether or not breach of promise to marry is an actionable wrong in the case.

Ruling:
Ordinarily, breach of promise to marry is not an actionable wrong. However, one may
incur civil liability when expenses have already been made to prepare for the wedding,
and the tarnished reputation of the family because of the embarrassment brought about
by the failed wedding. But the plaintiff must show sufficient evidence that the defendant
acted in wanton, reckless and oppressive manner.
Guidelines in determining psychological incapacity

REPUBLIC V. QUINTERO-HAMANO

GR no. 154994 June 28, 2005

Facts:
Lolita Quintero-Hamano and Toshio Hamano started cohabiting, living a common-law
relationship. Toshio was a Japanese national who would necessarily go back and forth
from Japan to Philippines.

Sometime in 1987, as Toshio went to Japan and while Lolita was in the Philippines, they
decided that they would get married 1 year thereafter. Their child was born, but he had
to go back to Japan promising the latter that he will return but he never kept his promise
and even if he returned he never visited her and their son and had only provided
financial support for only two months.

This prompted Lolita to file a declaration of nullity of their marriage. Summons was
served to his house but the known address was no longer where he resides. As a result,
they deemed it necessary to cause its publication in the newspaper.

Issue:
Whether or not Toshio was psychologically incapacitated to perform his marital
obligation.

Ruling:
It is not enough that ones act of abandonment would render him psychologically
incapacitated. In the present case, instead of constantly alleging that her husband could
not fulfil his obligation, Lolita could have just presented psychological examination or
evaluation of her husband which would definitely strengthen her case. The definition of
psychological incapacity does not evolve on the idea that one neglects or refuses to
fulfil his obligation, it must be based on ones inability or incapacity to perform essential
marital obligation.
Who is entitled to support

MABUGAY-OTAMIAS V. REPUBLIC

GR no. 189516 June 8, 2016

Facts:
Edna Mabugay-Otamias and Retired Colonel Francisco Otamias were married in June
16, 1978. They had 5 children. Due to the alleged Franciscos infidelity they decided to
separate and their children were all in the custody of their mother.

Edna, then, filed a complaint against Colonel Francisco before the Provost Marshall
Division of the Armed Forces of the Philippines. She demanded that they be entitled to
75% of the retirement benefits of Col. Otamias as their monthly support since the
children were all living with her.

Issue:
Wherther or not Colonel Otamias' pension benefits can be executed upon for the
financial support of his legitimate family

Ruling:
The Deed of Assignment should be considered as the law between the parties, and its
provisions should be respected in the absence of allegations that Colonel Otamias was
coerced or defrauded in executing it. The general rule is that a contract is the law
between parties and parties are free to stipulate terms and conditions that are not
contrary to law, morals, good customs, public order, or public policy.

The Deed of Assignment executed by Colonel Otamias was not contrary to law; it was
in accordance with the provisions on support in the Family Code. Hence, there was no
reason for the AFP PGMC not to recognize its validity.

Further, this Court notes that the AFP PGMC granted the request for support of the
wives of other retired military personnel in a similar situation as that of petitioner in this
case. Attached to the Petition are the affidavits of the wives of retired members of the
military, who have received a portion of their husbands' pensions.

Section 31 of Presidential Decree No. 1638 provides:chanRoblesvirtualLawlibrary

Section 31. The benefits authorized under this Decree, except as provided herein, shall
not be subject to attachment, garnishment, levy, execution or any tax whatsoever;
neither shall they be assigned, ceded, or conveyed to any third person: Provided, That if
a retired or separated officer or enlisted man who is entitled to any benefit under this
Decree has unsettled money and/or property accountabilities incurred while in the active
service, not more than fifty per centum of the pension gratuity or other payment due
such officer or enlisted man or his survivors under this Decree may be withheld and be
applied to settle such accountabilities.cralawred
Under Section 31, Colonel Otamias' retirement benefits are exempt from execution.
Retirement benefits are exempt from execution so as to ensure that the retiree has
enough funds to support himself and his family.
On the other hand, the right to receive support is provided under the Family Code.
Article 194 of the Family Code defines support as follows:chanRoblesvirtualLawlibrary
Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing,
medical attendance, education and transportation, in keeping with the financial capacity
of the family.

The education of the person entitled to be supported referred to in the preceding

paragraph shall include his schooling or training for some profession, trade or vocation,
even beyond the age of majority. Transportation shall include expenses in going to and
from school, or to and from place of work.cralawred
The provisions of the Family Code also state who are obliged to give support,
thus:chanRoblesvirtualLawlibrary
Art. 195. Subject to the provisions of the succeeding articles, the following are obliged to
support each other to the whole extent set forth in the preceding article:

(1) The spouses;

(2) Legitimate ascendants and descendants;

(3) Parents and their legitimate children and the legitimate and illegitimate children of
the latter;

(4) Parents and their illegitimate children and the legitimate and illegitimate children of
the latter; and

(5) Legitimate brothers and sisters, whether of the full or half- blood.

Art. 196. Brothers and sisters not legitimately related, whether of the full or half-blood,
are likewise bound to support each other to the full extent set forth in Article 194 except
only when the need for support of the brother or sister, being of age, is due to a cause
imputable to the claimant's fault or negligence.

Art. 197. For the support of legitimate ascendants; descendants, whether legitimate or
illegitimate; and brothers and sisters, whether legitimately or illegitimately related, only
the separate property of the person obliged to give support shall be answerable
provided that in case the obligor has no separate property, the absolute community or
the conjugal partnership, if financially capable, shall advance the support, which shall be
deducted from the share of the spouses obliged upon the liquidation of the absolute
community or of the conjugal partnership.