G.R. No.
186400 October 20, 2010 violation of Section 20 of the Rule on Declaration of Absolute Nullity of Void
CYNTHIA S. BOLOS, Petitioner,
vs.
DANILO T. BOLOS, Respondent.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of Court seeking
a review of the December 10, 2008 Decision1 of the Court of Appeals (CA) in an
original action for certiorari under Rule 65 entitled "Danilo T. Bolos v. Hon. Lorifel
Lacap Pahimna and Cynthia S. Bolos," docketed as CA-G.R. SP. No. 97872, reversing
the January 16, 2007 Order of the Regional Trial Court of Pasig City, Branch 69 (RTC),
declaring its decision pronouncing the nullity of marriage between petitioner and
respondent final and executory.
On July 10, 2003, petitioner Cynthia Bolos (Cynthia) filed a petition for the declaration
of nullity of her marriage to respondent Danilo Bolos (Danilo) under Article 36 of the
Family Code, docketed as JDRC No. 6211.
After trial on the merits, the RTC granted the petition for annulment in a Decision,
dated August 2, 2006, with the following disposition:
WHEREFORE, judgment is hereby rendered declaring the marriage between
petitioner CYNTHIA S. BOLOS and respondent DANILO T. BOLOS celebrated on
February 14, 1980 as null and void ab initio on the ground of psychological incapacity
on the part of both petitioner and respondent under Article 36 of the Family Code
with all the legal consequences provided by law.
Furnish the Local Civil Registrar of San Juan as well as the National Statistics Office
(NSO) copy of this decision.
SO ORDERED.2
A copy of said decision was received by Danilo on August 25, 2006. He timely filed
the Notice of Appeal on September 11, 2006.
In an order dated September 19, 2006, the RTC denied due course to the appeal for
Danilo’s failure to file the required motion for reconsideration or new trial, in
Marriages and Annulment of Voidable Marriages.
On November 23, 2006, a motion to reconsider the denial of Danilo’s appeal was
likewise denied.
On January 16, 2007, the RTC issued the order declaring its August 2, 2006 decision
final and executory and granting the Motion for Entry of Judgment filed by Cynthia.
Not in conformity, Danilo filed with the CA a petition for certiorari under Rule 65
seeking to annul the orders of the RTC as they were rendered with grave abuse of
discretion amounting to lack or in excess of jurisdiction, to wit: 1) the September 19,
2006 Order which denied due course to Danilo’s appeal; 2) the November 23, 2006
Order which denied the motion to reconsider the September 19, 2006 Order; and 3)
the January 16, 2007 Order which declared the August 2, 2006 decision as final and
executory. Danilo also prayed that he be declared psychologically capacitated to
render the essential marital obligations to Cynthia, who should be declared guilty of
abandoning him, the family home and their children.
As earlier stated, the CA granted the petition and reversed and set aside the assailed
orders of the RTC. The appellate court stated that the requirement of a motion for
reconsideration as a prerequisite to appeal under A.M. No. 02-11-10-SC did not apply
in this case as the marriage between Cynthia and Danilo was solemnized on February
14, 1980 before the Family Code took effect. It relied on the ruling of this Court in
Enrico v. Heirs of Sps. Medinaceli3 to the effect that the "coverage [of A.M. No. 02-
11-10-SC] extends only to those marriages entered into during the effectivity of the
Family Code which took effect on August 3, 1988."
Cynthia sought reconsideration of the ruling by filing her Manifestation with Motion
for Extension of Time to File Motion for Reconsideration and Motion for Partial
Reconsideration [of the Honorable Court’s Decision dated December 10, 2008]. The
CA, however, in its February 11, 2009 Resolution,4 denied the motion for extension
of time considering that the 15-day reglementary period to file a motion for
reconsideration is non-extendible, pursuant to Section 2, Rule 40, 1997 Rules on Civil
Procedure citing Habaluyas v. Japson, 142 SCRA 208. The motion for partial
reconsideration was likewise denied.
Hence, Cynthia interposes the present petition via Rule 45 of the Rules of Court
raising the following
ISSUES
I
THE COURT OF APPEALS GRAVELY ERRED IN ISSUING THE QUESTIONED DECISION
DATED DECEMBER 10, 2008 CONSIDERING THAT:
A. THE PRONOUNCEMENT OF THE HONORABLE COURT IN ENRICO V. SPS.
MEDINACELI IS NOT APPLICABLE TO THE INSTANT CASE CONSIDERING THAT THE
FACTS AND THE ISSUE THEREIN ARE NOT SIMILAR TO THE INSTANT CASE.
B. ASSUMING ARGUENDO THAT THE PRONOUNCEMENT OF THE HONORABLE
COURT IS APLLICABLE TO THE INSTANT CASE, ITS RULING IN ENRICO V. SPS.
MEDINACELI IS PATENTLY ERRONEOUS BECAUSE THE PHRASE "UNDER THE
FAMILY CODE" IN A.M. NO. 02-11-10-SC PERTAINS TO THE WORD "PETITIONS"
RATHER THAN TO THE WORD "MARRIAGES."
C. FROM THE FOREGOING, A.M. NO. 02-11-10-SC ENTITLED "RULE ON
DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF
VOIDABLE MARRIAGES" IS APPLICABLE TO MARRIAGES SOLEMNIZED BEFORE THE
EFFECTIVITY OF THE FAMILY CODE. HENCE, A MOTION FOR RECONSIDERATION IS
A PRECONDITION FOR AN APPEAL BY HEREIN RESPONDENT.
D. CONSIDERING THAT HEREIN RESPONDENT REFUSED TO COMPLY WITH A
PRECONDITION FOR APPEAL, A RELAXATION OF THE RULES ON APPEAL IS NOT
PROPER IN HIS CASE.
II
THE COURT OF APPEALS GRAVELY ERRED IN ISSUING THE QUESTIONED
RESOLUTION DATED FEBRUARY 11, 2009 CONSIDERING THE FOREGOING AND THE
FACTUAL CIRCUMSTANCES OF THIS CASE.
III
THE TENETS OF JUSTICE AND FAIR PLAY, THE NOVELTY AND IMPORTANCE OF THE
ISSUE AND THE SPECIAL CIRCUMSTANCES IN THIS CASE JUSTIFY AND WARRANT A
LIBERAL VIEW OF THE RULES IN FAVOR OF THE PETITIONER. MOREOVER, THE
INSTANT PETITION IS MERITORIOUS AND NOT INTENDED FOR DELAY.5
From the arguments advanced by Cynthia, the principal question to be resolved is
whether or not A.M. No. 02-11-10-SC entitled "Rule on Declaration of Absolute
Nullity of Void Marriages and Annulment of Voidable Marriages," is applicable to the
case at bench.
Petitioner argues that A.M. No. 02-11-10-SC is also applicable to marriages
solemnized before the effectivity of the Family Code. According to Cynthia, the CA
erroneously anchored its decision to an obiter dictum in the aforecited Enrico case,
which did not even involve a marriage solemnized before the effectivity of the Family
Code.
She added that, even assuming arguendo that the pronouncement in the said case
constituted a decision on its merits, still the same cannot be applied because of the
substantial disparity in the factual milieu of the Enrico case from this case. In the said
case, both the marriages sought to be declared null were solemnized, and the action
for declaration of nullity was filed, after the effectivity of both the Family Code in
1988 and of A.M. No. 02-11-10-SC in 2003. In this case, the marriage was solemnized
before the effectivity of the Family Code and A.M. No. 02-11-10-SC while the action
was filed and decided after the effectivity of both.
Danilo, in his Comment,6 counters that A.M. No. 02-11-10-SC is not applicable
because his marriage with Cynthia was solemnized on February 14, 1980, years
before its effectivity. He further stresses the meritorious nature of his appeal from
the decision of the RTC declaring their marriage as null and void due to his purported
psychological incapacity and citing the mere "failure" of the parties who were
supposedly "remiss," but not "incapacitated," to render marital obligations as
required under Article 36 of the Family Code.
The Court finds the petition devoid of merit.
Petitioner insists that A.M. No. 02-11-10-SC governs this case. Her stance is
unavailing. The Rule on Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages as contained in A.M. No. 02-11-10-SC which the
Court promulgated on March 15, 2003, is explicit in its scope. Section 1 of the Rule,
in fact, reads:
Section 1. Scope – This Rule shall govern petitions for declaration of absolute nullity
of void marriages and annulment of voidable marriages under the Family Code of the
Philippines.
The Rules of Court shall apply suppletorily.
The categorical language of A.M. No. 02-11-10-SC leaves no room for doubt. The
coverage extends only to those marriages entered into during the effectivity of the
Family Code which took effect on August 3, 1988.7 The rule sets a demarcation line
between marriages covered by the Family Code and those solemnized under the Civil
Code.8
The Court finds Itself unable to subscribe to petitioner’s interpretation that the
phrase "under the Family Code" in A.M. No. 02-11-10-SC refers to the word
"petitions" rather than to the word "marriages."
A cardinal rule in statutory construction is that when the law is clear and free from
any doubt or ambiguity, there is no room for construction or interpretation. There is
only room for application.9 As the statute is clear, plain, and free from ambiguity, it
must be given its literal meaning and applied without attempted interpretation. This
is what is known as the plain-meaning rule or verba legis. It is expressed in the maxim,
index animi sermo, or "speech is the index of intention." Furthermore, there is the
maxim verba legis non est recedendum, or "from the words of a statute there should
be no departure."10
There is no basis for petitioner’s assertion either that the tenets of substantial justice,
the novelty and importance of the issue and the meritorious nature of this case
warrant a relaxation of the Rules in her favor. Time and again the Court has stressed
that the rules of procedure must be faithfully complied with and should not be
discarded with the mere expediency of claiming substantial merit. 11 As a corollary,
rules prescribing the time for doing specific acts or for taking certain proceedings are
considered absolutely indispensable to prevent needless delays and to orderly and
promptly discharge judicial business. By their very nature, these rules are regarded
as mandatory.12
The appellate court was correct in denying petitioner’s motion for extension of time
to file a motion for reconsideration considering that the reglementary period for filing
the said motion for reconsideration is non-extendible. As pronounced in Apex Mining
Co., Inc. v. Commissioner of Internal Revenue, 13
The rule is and has been that the period for filing a motion for reconsideration is non-
extendible. The Court has made this clear as early as 1986 in Habaluyas Enterprises
vs. Japzon. Since then, the Court has consistently and strictly adhered
thereto.1avvphil
Given the above, we rule without hesitation that the appellate court’s denial of
petitioner’s motion for reconsideration is justified, precisely because petitioner’s
earlier motion for extension of time did not suspend/toll the running of the 15-day
reglementary period for filing a motion for reconsideration. Under the circumstances,
the CA decision has already attained finality when petitioner filed its motion for
reconsideration. It follows that the same decision was already beyond the review
jurisdiction of this Court.
In fine, the CA committed no reversible error in setting aside the RTC decision which
denied due course to respondent’s appeal and denying petitioner’s motion for
extension of time to file a motion for reconsideration.
Appeal is an essential part of our judicial system. Its purpose is to bring up for review
a final judgment of the lower court. The courts should, thus, proceed with caution so
as not to deprive a party of his right to appeal. 14 In the recent case of Almelor v. RTC
of Las Pinas City, Br. 254,15 the Court reiterated: While the right to appeal is a
statutory, not a natural right, nonetheless it is an essential part of our judicial system
and courts should proceed with caution so as not to deprive a party of the right to
appeal, but rather, ensure that every party-litigant has the amplest opportunity for
the proper and just disposition of his cause, free from the constraints of
technicalities.
In the case at bench, the respondent should be given the fullest opportunity to
establish the merits of his appeal considering that what is at stake is the sacrosanct
institution of marriage.
No less than the 1987 Constitution recognizes marriage as an inviolable social
institution. This constitutional policy is echoed in our Family Code. Article 1 thereof
emphasizes its permanence and inviolability, thus:
Article 1. Marriage is a special contract of permanent union between a man and a
woman entered into in accordance with law for the establishment of conjugal and
family life. It is the foundation of the family and an inviolable social institution whose
nature, consequences, and incidents are governed by law and not subject to
stipulation, except that marriage settlements may fix the property relations during
the marriage within the limits provided by this Code.
This Court is not unmindful of the constitutional policy to protect and strengthen the
family as the basic autonomous social institution and marriage as the foundation of
the family.16
Our family law is based on the policy that marriage is not a mere contract, but a social
institution in which the State is vitally interested. The State finds no stronger anchor
than on good, solid and happy families. The break up of families weakens our social
and moral fabric and, hence, their preservation is not the concern alone of the family
members.17
WHEREFORE, the petition is DENIED.
SO ORDERED.
EN BANC
G.R. No. L-15853 July 27, 1960
FERNANDO AQUINO, petitioner,
vs.
CONCHITA DELIZO, respondent.
GUTIERREZ DAVID, J.:
This is a petition for certiorari to review a decision of the Court of Appeals affirming
that of the Court of First Instance of Rizal which dismissed petitioner's complaint for
annulment of his marriage with respondent Conchita Delizo.
The dismissed complaint, which was filed on September 6, 1955, was based on the
ground of fraud, it being alleged, among other things, that defendant Conchita Delizo,
herein respondent, at the date of her marriage to plaintiff, herein petitioner
Fernando Aquino, on December 27, 1954, concealed from the latter that fact that she
was pregnant by another man, and sometime in April, 1955, or about four months
after their marriage, gave birth to a child. In her answer, defendant claimed that the
child was conceived out of lawful wedlock between her and the plaintiff.
At the trial, the attorney's for both parties appeared and the court a quo ordered
Assistant Provincial Fiscal Jose Goco to represent the State in the proceedings to
prevent collusion. Only the plaintiff however, testified and the only documentary
evidence presented was the marriage contract between the parties. Defendant
neither appeared nor presented any evidence despite the reservation made by her
counsel that he would present evidence on a later date.
On June 16, 1956, the trial court — noting that no birth certificate was presented to
show that the child was born within 180 days after the marriage between the parties,
and holding that concealment of pregnancy as alleged by the plaintiff does not
constitute such fraud sa would annul a marriage — dismissed the complaint. Through
a verified "petition to reopen for reception of additional evidence", plaintiff tried to
present the certificates of birth and delivery of the child born of the defendant on
April 26, 1955, which documents, according to him, he had failed to secure earlier
and produce before the trial court thru excusable negligence. The petition, however,
was denied.
On appeal to the Court of Appeals, that court held that there has been excusable
neglect in plaintiff's inability to present the proof of the child's birth, through her
birth certificate, and for that reason the court a quo erred in denying the motion for
reception of additional evidence. On the theory, however, that it was not impossible
for plaintiff and defendant to have had sexual intercourse during their engagement
so that the child could be their own, and finding unbelievable plaintiff's claim that he
did not notice or even suspect that defendant was pregnant when he married her,
the appellate court, nevertheless, affirmed the dismissal of the complaint.
On March 17, 1959, plaintiff filed a motion praying that the decision be reconsidered,
or, if such reconsideration be denied, that the case be remanded to the lower court
for new trial. In support of the motion, plaintiff attached as annexes thereof the
following documents:
1. Affidavit of Cesar Aquino (Annex A) (defendant's brother-in-law and
plaintiff's brother, with whom defendant was living at the time plaintiff
met, courted and married her, and with whom defendant has begotten
two more children, aside from her first born, in common-law relationship)
admitting that he is the father of defendant's first born, Catherine Bess
Aquino, and that he and defendant hid her pregnancy from plaintiff at the
time of plaintiff's marriage to defendant;
2. Affidavit of defendant, Conchita Delizo (Annex "B") admitting her
pregnancy by Cesar Aquino, her brother-in-law and plaintiff's own brother,
at the time of her marriage to plaintiff and her having hidden this fact from
plaintiff before and up to the time of their marriage;
3. Affidavit of Albert Powell (Annex "C") stating that he knew Cesar Aquino
and defendant lived together as husband and wife before December 27,
1954, the date of plaintiff's marriage to defendant;
4. Birth Certificate of defendant's first born, Catherine Bess Aquino
showing her date of birth to be April 26, 1955;
5. Birth Certificate (Annex "D") of Carolle Ann Aquino, the second child of
defendant with Cesar Aquino, her brother-in-law;
6. Birth Certificate (Annex "E") of Chris Charibel Aquino, the third child of
Cesar Aquino and defendant; and
7. Pictures of defendant showing her natural plumpness as early as 1952 to
as late as November, 1954, the November, 1954 photo itself does not
show defendant's pregnancy which must have been almost four months
old at the time the picture was taken.
Acting upon the motion, the Court of Appeals ordered the defendant Conchita Delizo Upon the other hand, the evidence sought to be introduced at the new trial, taken
and Assistant Provincial Fiscal of Rizal, who was representing the Government, to together with what has already been adduced would, in our opinion, be sufficient to
answer the motion for reconsideration, and deferred action on the prayer for new sustain the fraud alleged by plaintiff. The Court of Appeals should, therefore, not
trial until after the case is disposed of. As both the defendant and the fiscal failed to have denied the motion praying for new trial simply because defendant failed to file
file an answer, and stating that it "does not believe the veracity of the contents of her answer thereto. Such failure of the defendant cannot be taken as evidence of
the motion and its annexes", the Court of Appeals, on August 6, 1959, denied the collusion, especially since a provincial fiscal has been ordered of represent the
motion. From that order, the plaintiff brought the case to this Court thru the present Government precisely to prevent such collusion. As to the veracity of the contents of
petition for certiorari. the motion and its annexes, the same can best be determined only after hearing
evidence. In the circumstance, we think that justice would be better served if a new
After going over the record of the case, we find that the dismissal of plaintiff's trial were ordered.
complaint cannot be sustained.
Wherefore, the decision complained of is set aside and the case remanded to the
Under the new Civil Code, concealment by the wife of the fact that at the time of the court a quo for new trial. Without costs.
marriage, she was pregnant by a man other than her husband constitutes fraud and
is ground for annulment of marriage. (Art. 85, par. (4) in relation to Art. 86, par. (3).
In the case of Buccat vs. Buccat (72 Phil., 19) cited in the decision sought to be
reviewed, which was also an action for the annulment of marriage on the ground of
fraud, plaintiff's claim that he did not even suspect the pregnancy of the defendant
was held to be unbelievable, it having been proven that the latter was already in an
advanced stage of pregnancy (7th month) at the time of their marriage. That
pronouncement, however, cannot apply to the case at bar. Here the defendant wife
was alleged to be only more than four months pregnant at the time of her marriage
to plaintiff. At that stage, we are not prepared to say that her pregnancy was readily
apparent, especially since she was "naturally plump" or fat as alleged by plaintiff.
According to medical authorities, even on the 5th month of pregnancy, the
enlargement of a woman's abdomen is still below the umbilicus, that is to say, the
enlargement is limited to the lower part of the abdomen so that it is hardly noticeable
and may, if noticed, be attributed only to fat formation on the lower part of the
abdomen. It is only on the 6th month of pregnancy that the enlargement of the
woman's abdomen reaches a height above the umbilicus, making the roundness of
the abdomen more general and apparent. (See Lull, Clinical Obstetrics, p. 122) If, as
claimed by plaintiff, defendant is "naturally plump", he could hardly be expected to
know, merely by looking, whether or not she was pregnant at the time of their
marriage more so because she must have attempted to conceal the true state of
affairs. Even physicians and surgeons, with the aid of the woman herself who shows
and gives her subjective and objective symptoms, can only claim positive diagnosis
of pregnancy in 33% at five months. and 50% at six months. (XI Cyclopedia of
Medicine, Surgery, etc. Pregnancy, p. 10).

The appellate court also said that it was not impossible for plaintiff and defendant to
have had sexual intercourse before they got married and therefore the child could be
their own. This statement, however, is purely conjectural and finds no support or
justification in the record.
 [G.R. No. L-1967. May 28, 1951.]
Probate of the will of the late Faustino Neri San Jose. PAZ NERI SAN
JOSE, Petitioner. MATILDE MENCIANO, in her behalf and in behalf of the minors
CARLO MAGNO NERI and FAUSTINO NERI, Jr., Plaintiffs-Appellees, v. PAZ NERI
SAN JOSE and RODOLFO PELAEZ, Defendants-Appellants.
Claro M. Recto, Francisco R. Capistrano, Pelaez, Pelaez & Pelaez and Ernesto V.
Chavez for Appellants.
Pineda, Hermosisima & Neri for Appellees.
SYLLABUS
1. PUBLIC DOCUMENT; EXECUTION; SUFFICIENCY OF PROOF. — As all the four
exhibits are official and public documents, their validity can be successfully assailed
only by strong, clear, and convincing oral testimony. (Arroyo v. Granada, 18 Phil.,
484; Sy Tiangco v. Pablo and Apao, 69 Phil., 119.)
2. MARRIAGE, CAPACITY TO CONTRACT. — Although the doctrine laid down in the
cases of Torres, v. Lopez (48 Phil., 772) and Sancho v. Abella (58 Phil., 728) relates to
mental testamentary capacity, there is no reason why it should not be applied to
the mental capacity to contract marriage.
3. LEGITIMACY; EVIDENCE; CONCLUSIVE PRESUMPTION; CASE AT BAR. — The
deceased F. N. and M. M. were married on September 28, 1944. F. N., Jr., was born
on April 24, 1945, that is, two hundred eight days, or more than one hundred eighty
days, after the marriage, but less than three hundred days after the death of F. N.
which occurred on October 11, 1944. There is no question that before and after the
marriage, the deceased and M. M. cohabited. The provisions of Rule 123, section
68(c) on conclusive presumption are so clear that they do not require interpretation
or construction, but only application.
4. EVIDENCE; IMPOTENCY, NOT TO BE PRESUMED; DIFFERENT FROM STERILITY. —
Impotency being an abnormal condition should not be presumed. The presumption
is in favor of potency. Impotency is not synonimous with sterility.
DECISION
JUGO, J.:
In the course of the proceedings for the settlement of the estate of the deceased
Faustino Neri San Jose, Special Proceedings No. 6-A of the Court of First Instance of
Misamis Oriental, Matilde Menciano, in her behalf and in behalf of the minors Carlo
Magno Neri and Faustino Neri, Jr., filed a motion for declaration of heirs, alleging
that she is the widow of the deceased Faustino Neri San Jose, to whom she was
married according to the rites of the Roman Catholic Church on September 28,
1944, before Rev. Father Isaias Edralin, S. J.; that before the marriage the deceased
and she lived together as husband and wife, there having been no impediment to
their marriage; that as a result of their cohabitation before the marriage the child
Carlo Magno Neri was born on March 9, 1940 and was later baptized, said child
having enjoyed the status of a recognized natural child; that their second child
Faustino Neri, Jr., was born on April 24, 1945; and that Carlo Magno Neri was
legitimized by the subsequent matrimony of his parents and Faustino Neri, Jr., is a
legitimate child born in lawful wedlock.
Paz Neri San Jose, then executrix of the estate of the deceased Faustino Neri San
Jose, and Rodolfo Pelaez, designated universal heir in the will of the deceased dated
December 19, 1940, filed an amended answer with the permission of the court, in
which they denied the substantial allegations of the above-mentioned motion for
declaration of heirs and further alleged in substance that the deceased Faustino
Neri San Jose, from the year 1943, was suffering from senile dementia caused by
anemia which became worse from September 9, 1944, when the Province of
Misamis Oriental where the deceased lived was bombarded by American planes;
that the marriage between said deceased and Matilde Menciano, if it was
solemnized, was in violation of the legal provisions and requisites, for he (the
deceased) was deprived of his free will due to his age, sickness, and bombardment,
and Matilde Menciano, taking advantage of the deceased’s condition, by intrigue
and threat of abandoning him, forced Neri by means of deceit (dolo) and threat to
marry her; and that the deceased was sterile, unable to procreate, and was
impotent and congenitally sterile, the same as his brothers Anastasio, Filomeno,
Pedro, and his sister Conchita, who had had no children. The defendants also filed a
counterclaim for the sum of P286,000 in cash, and for jewels and certain properties,
which, as alleged, were retained and illegally disposed of by Matilde Menciano.
The above allegations of the parties give rise to the following issues:chanrob1es
virtual 1aw library
(1) Was the marriage between the deceased Faustino Neri San Jose and Matilde
Menciano valid?;
(2) Are the children Faustino Neri, Jr. and Carlo Magno Neri the legitimate children
of the deceased Faustino Neri San Jose and Matilde Menciano?; and
(3) Did Matilde Menciano have in her possession and illegally disposed of the cash,
jewels, and certain properties above mentioned?
The marriage between the deceased and Matilde Menciano is evidenced by Exhibit
1-C, which is an application for a marriage license, dated September 28, 1944,
signed by Faustino Neri San Jose, to marry Matilde Menciano; Exhibit 1-B, also an
application for a marriage license dated September 28, 1944, signed by Matilde
Menciano, to marry Faustino Neri San Jose; Exhibit 1-D, certificate for immediate
issuance of the marriage license applied for, signed by the Acting Local Civil
Registrar and Faustino Neri San Jose and Matilde Menciano; and Exhibit 1-A, the
marriage contract signed by Faustino Neri San Jose and Matilde Menciano as
contracting parties, Rev. Isaias Edralin, as solemnizing officer, and the witnesses L.B.
Castaños and Samson Pañgan.
As all the above four exhibits are official and public documents, their validity can be
successfully assailed only by strong, clear, and convincing oral testimony.
In the case of Arroyo v. Granada (18 Phil., 484), it was held:jgc:chanrobles.com.ph
"1. CANCELLATION OF INSTRUMENTS; SUFFICIENCY OF PROOF. — To justify the
setting aside of an instrument solemnly executed and voluntarily delivered, upon
the ground that its execution was obtained by false and fraudulent representations,
the proof must be clear and convincing." (Syllabus).
In the case of Sy Tiangco v. Pablo and Apao (59 Phil., 119), this Court
declared:jgc:chanrobles.com.ph
"1. PUBLIC DOCUMENT; EXECUTION; DENIAL OF ALLEGED SIGNER; BURDEN OF
PROOF. — Plaintiff’s attorneys vigorously contend that when the plaintiff denied
having signed the deed, it was incumbent upon the defendants to call the witnesses
thereto. The execution of a document that has been ratified before a notary public
cannot be disproved by the mere denial of the alleged signer. No inference
unfavorable to the defendants arises from their failure to call the subscribing
witnesses." (Syllabus)
Is the oral evidence presented by the defendants of sufficient force and weight to
overcome the above official documents?
The witnesses for the defendants testified in substance that the deceased Faustino
Neri was so weak and sick that he could not even talk coherently and intelligibly.
Their testimony is too sweeping, because they refer to a general period of time.
There must have been times when the deceased may have been unable to attend to
business or even to converse on account of his sickness, and even Father Edralin did
not solemnize the marriage on a certain date on account of the weak condition of
Faustino Neri and waited for about two days to perform the ceremony when the old
man, although somewhat weak, had a clear mind. Father Edralin’s testimony is
strongly corroborated by the form of the signatures of Faustino Neri in the above
mentioned Exhibits 1-A, 1-C, and 1-D. A mere glance at those signatures will
convince anyone that they could not have been written by a man who is almost
unconscious and physically and intellectually incapacitated, as the defendants’
witnesses represent him to have been. It should be noted that his signature is
complicated, containing many flourishes, such that it can not be signed by one who
is not of sound mind and of fair physical condition. He may have been sick at that
time, but not to such a degree as to render him unconscious of what he was doing.
If the signatures of the deceased in Exhibits 1-A, 1-C, and 1-D are compared with
each other it will be readily seen that they are practically uniform, which could not
have been accomplished by a man who is a nervous wreck. There is no sign of
trembling of the hands or fingers of the person who affixed those signatures, which
usually happens to a very sick man. In the case of Torres Et. Al. v. Lopez (48 Phil.,
772), this court made the following pronouncement:jgc:chanrobles.com.ph
"3. ID.; ID.; TESTS OF CAPACITY. — Neither old age, physical infirmities, feebleness
of mind, weakness of the memory, the appointment of a guardian, nor
eccentricities are sufficient singly or jointly to show testamentary incapacity. The
nature and rationality of the will is of some practical utility in determining capacity.
Each case rests on its own facts and must be decided by its own facts." (Syllabus, p.
773.)
x x x
"11. ID.; ID.; ID.; ID.; CASE AT BAR. — On January 3, 1924, when the testator, Tomas
Rodriguez, made his will, he was 76 years old, physically decrepit, weak of intellect,
suffering from a loss of memory, had a guardian of his person and his property, and
was eccentric, but he still possessed that spark of reason and of life, that strength of
mind to form a fixed intention and to summon his enfeebled thoughts to enforce
that intention, which the law terms ’testamentary capacity.’ Two of the subscribing
witnesses testified clearly to the regular manner in which the will was executed,
and one did not. The attending physicians and three other doctors who were
present at the execution of the will expressed opinions entirely favorable to the
capacity of the testator. Three other members of the medical profession expressed
opinions entirely unfavorable to the capacity of the testator and certified that he
was of unsound mind. Held, That Tomas Rodriguez on January 3, 1924, possessed
sufficient mentality to make a will which would meet the legal test regarding
testamentary capacity; that the proponents of the will have carried successfully the
burden of proof and have shown him of sound mind on that date; and that it was
reversible error on the part of the trial court not to admit his will to probate."
(Syllabus, p. 774)
In Sancho v. Abella (58 Phil., 728), this court said:jgc:chanrobles.com.ph
"1. WILLS; PROBATE; CAPACITY TO MAKE A WILL. — Neither senile debility, nor
deafness, nor blindness, nor poor memory, is by itself sufficient to establish the
presumption that the person suffering therefrom is not in the full enjoyment of his
mental faculties, when there is sufficient evidence of his mental sanity at the time
of the execution of the will.
"2. ID.; ID.; ID.; — Neither the fact of her being given accommodations in a convent,
nor the presence of the parish priest, nor a priest acting as a witness, constitutes
undue influence sufficient to justify the annulment of a legacy in favor of a bishop
of a diocese, made in her will by a testatrix 88 years of age, suffering from defective
eyesight and hearing, while she is stopping in a convent within the aforesaid
diocese." (Syllabi).
Although the above doctrine relates to testamentary capacity, there is no reason
why it should not be applied to the capacity to contract marriage, which requires
the same mental condition. Consequently, the court below did not err in declaring
valid the marriage of Faustino Neri San Jose and Matilde Menciano.
The next issue is whether Faustino Neri, Jr., and Carlo Magno Neri are legitimate
children of the deceased Faustino Neri and Matilde Menciano.
As above stated, the deceased Faustino Neri and Matilde Menciano were married
on September 28, 1944. Faustino Neri, Jr., was born on April 24, 1945; that is, two
hundred eight days, or more than one hundred eighty days, after the marriage, but
less than three hundred days after the death of Faustino Neri San Jose which
occurred on October 11, 1944. There is no question that before and after the
marriage, the deceased and Matilde Menciano cohabitated.
Rule 123, section 68(c), reads as follows:jgc:chanrobles.com.ph
"SEC. 68. Conclusive presumptions. — The following are instances of conclusive
presumptions:chanrob1es virtual 1aw library
x x x
"(c) The issue of a wife cohabiting with her husband, who is not impotent, is
indisputably presumed to be legitimate, if not born within the one hundred and
eighty days immediately succeeding the marriage, or after the expiration of three
hundred days following its dissolution;
x x x Dictionary, Second Edition, Unabridged, p. 1251).
The above-quoted provision is so clear that it does not require interpretation or
construction, but only application.
The requirements for the conclusive presumption that Faustino Neri, Jr. is the
legitimate son of the legitimate marriage of the deceased Faustino Neri and Matilde
Menciano exist as above stated, with the possible exception of the requisite as to
potency.
Was the deceased Faustino Neri impotent during his cohabitation with Matilde
Menciano?
Impotency being an abnormal condition should not be presumed. The presumption
is in favor of potency. The best evidence that the deceased was potent is the
statement of Dr. Antonio Garcia that in order to get a specimen of the semen of the
deceased Faustino Neri for examination as to its contents of spermatozoa, Faustino,
following the doctor’s advice, used a rubber sac, commonly called "condon", and a
woman. The fact that the deceased was able to produce the specimen by said
means shows conclusively that he was potent. Impotency is not synonimous with
sterility. Impotency is the physical inability to have sexual intercourse; it is different
from sterility.
"(1) Impotence, in Medical Jurisprudence. — Inability on the part of the male organ
of copulation to perform its proper function. Impotence applies only to disorders
affecting the function of the organ of copulation, while sterility applies only to lack
of fertility in the reproductive elements of either sex. (Dennis, System of Surgery;
Bouvier’s Law Dictionary, Rawle’s Third Revision, Vol. II, p. 1514).
"(2) Impotentia (L.) Impotence.
"Impotentia Coeundi, inability of the male to perform the sexual act.
"Impotentia Erigendi, inability to have an erection of the penis. (The American
Illustrated Medical Dictionary, by Dorland, 20th Edition, p. 721) .
"i. Coeundi. Inability of the male to perform the sexual act. i. erigendi, impotence
due to the absence of the power of erection. (Stedman’s Practical Medical
Dictionary, p. 551).
"(4) Impotence.
"‘3. Law & Med. Incapacity for sexual intercourse.’ (Webster’a New International
"(5) Impotency or Impotence. — Want of power for copulation, not mere sterility.
The absence of complete power of copulation is an essential element to constitute
impotency. (31 C.J., p. 259).
"(6) Impotence. — Inability to perform the sexual act may be due to defective
organs from abnormal or incomplete development, or to deficient internal
secretions, or to disorders of the nervous system diminishing the libido. Impotence
may or may not be accompanied by sterility. (The Columbia Encyclopedia,
877)."cralaw virtua1aw library
Consequently, the requisite of potency also existed. The necessary conclusion is
that the child Faustino Neri, Jr., is conclusively presumed to be the legitimate son of
the deceased Faustino Neri with Matilde Menciano in lawful wedlock.
The attorney for the plaintiffs correctly objected to the evidence regarding sterility
and any other evidence as to paternity. The objection should not have been
overruled.
However, even considering the evidence as to sterility, it results that the
examinations of the semen by Drs. Garcia and Marfori in 1940, to determine the
existence of spermatozoa, do not establish that the deceased was sterile. According
to medical jurisprudence, a man may not have spermatozoa at a certain time, but
may have had it previously or may have it subsequently to the examination. The
examinations by Drs. Garcia and Marfori were made in 1940. From that time
Faustino Neri San Jose cohabited with Matilde Menciano until his death on October
11, 1944.
Doctor Jose F. Marfori testified as follows:jgc:chanrobles.com.ph
"Q. How many times did you examine his seminal fluid? — A. Only once.
"Q. In other words, from the latter part of 1940 up to his death you examined only
once his seminal fluid? — A. Yes, sir. .
"Q. Is it not a fact that you cannot determine sterility or his inability to procreate
with one examination? — A. It would have been better if there was an examination
of his seminal fluid every year. .
"Q. But the truth is that today a man may lack spermatozoa in his seminal fluid, but
much later it may appear? — A. That is possible." (P. 28, t.s.n., Gaane).
It should be noted that Doctor Marfori is a nephew-in-law of the deceased Faustino
Neri.
With regard to the supposed examination made by Doctor Garcia in Cebu on
December 9, 1940, Cristobal Lopez, nephew of Faustino, testified that during said
period, December, 1940, the deceased Neri never went out of Cagayan, Oriental
Misamis. We cannot accord much weight to the testimony of Doctor Garcia that he
made the examination.
But even supposing that said doctors made such examinations, still the result is
inconclusive, for the reasons above set forth, and cannot in any way overthrow the
conclusive presumption established by Rule 123, section 68(c).
Carlo Magno Neri was born on March 9, 1940, that is, before the marriage. Both the
deceased Faustino and Matilde Menciano were free to marry without any legal
impediment. However, the court below declared that Carlo Magno Neri has not
been acknowledged as a natural child and, consequently, cannot be legitimized by
the subsequent marriage of his parents. We cannot review this finding because the
plaintiffs did not appeal.
The defendants allege that Matilde Menciano is retaining or has illegally disposed of
P286,000, genuine Philippine currency, certain jewels, and documents. The trial
court, after a careful and exhaustive review of the evidence, correctly reached the
conclusion that such allegation has not been substantiated. Let us make a short
analysis of the defendants’ evidence on this point.
The principal witness for this claim was Rodolfo Pelaez, who testified that the
deceased Faustino in 1939 delivered to him the sum of P250,000 in small
denominations to be exchanged in a bank in Manila for bills of larger denominations
as P500, etc. After having exchanged it with the help of Representative Ozamis
(dead on the date of the trial), he returned to the province and delivered the sum to
the deceased Neri. On cross-examination he was not able to say whether the bills
he took to Manila in October, 1939, were treasury certificates or bank bills; that in
July, 1944, he visited Cagayan and he saw his uncle Faustino living with Matilde
Menciano and Carlo Magno Neri in the house of a Chinaman on Calle Del Mar; that
he saw the sum of P250,000 in a wooden aparador. But when he was asked
whether he actually saw the money in the aparador, he said he was so informed by
his uncle. His testimony is hearsay. Furthermore, there is no reason why his uncle
should have accounted to him for the money. His testimony is contradicted by that
of Paz Neri San Jose, his mother, who stated that the deceased Faustino went to the
house of the Chinaman on Calle Del Mar only to fetch certain document which he
had left there; that the deceased was not living in said house; that he went there
now and then to play monte; that the deceased and herself were living in the house
of one Tamparong; that the deceased used to carry with him his money, jewels, and
documents, in a sack, wherever he went to play; that at the time of the air raid by
the Americans, the deceased went to the house on Calle Del Mar carrying the said
sack, but he returned to the house of Tamparong, leaving the sack in the house on
Calle Del Mar, but after the air raid he returned on the latter house to fetch the
sack. This testimony of Paz Neri, who was a witness for the defendants and a co-
defendant herself, contradicts in essential and important features that of Rodolfo
Pelaez.

The testimony of Paz Neri would show that the deceased Neri was distrustful of
relatives and friends when his funds were concerned. P250,000 in 1939 was quite a
fortune in itself and, consisting of cash, could have been easily disposed of. In 1939
nobody believed for certain that there would be war. Why then should the
deceased have wanted to change the money for bigger denominations when he
could have deposited it in a nearby branch of the Philippine National Bank where
the deceased could have gone, for, as alleged by the defendants, he even went to
Cebu in 1940 for examination of his seminal fluid?

It was testified to by Clotilde Galarrita de Labitad that Matilde Menciano showed to

her the sum of P284,000 in genuine Philippine currency and counted the money in
her presence. This is unbelievable. Could she not have counted it without the
presence of anybody and thus avoided the danger of theft or robbery?

With regard to the jewels no satisfactory evidence was presented to prove that
Matilde Menciano misappropriated them. She received and had in her possession a
few jewels given to her by the deceased Faustino for the benefit of the children.

As to the revocation of the appointment of Paz Neri San Jose as executrix, the trial
court made a reasonable exercise of its discretion in setting it aside and appointing
Matilde Menciano administratrix, in view of the hostility between them which
would cause many incidental questions and delay in the termination of the
proceedings if Paz Neri had continued as such executrix. We see no reason for
interfering in this case with the discretion of the court.

The appellees contend that the court erred in not completely annulling the
institution of universal heir, without considering Rodolfo Pelaez as a legatee.
Inasmuch as the plaintiffs did not appeal, they are bound by the decision of the trial
court.

In view of the foregoing, the judgment appealed from is affirmed in all its parts,
with costs against the appellants. It is so ordered.

SECOND DIVISION
G.R. No. 145370 March 4, 2004
MARIETTA B. ANCHETA, petitioner,
vs.
RODOLFO S. ANCHETA, respondent.
DECISION
CALLEJO, SR., J.:
1
This is a petition for review on certiorari of the Resolution of the Court of Appeals in
CA-G.R. SP No. 59550 which dismissed the petitioner’s petition under Rule 47 of the
1997 Rules of Civil Procedure to annul the Order2 of the Regional Trial Court of Naic,
Cavite, Branch 15 in Special Proceedings No. NC-662 nullifying the marriage of the
petitioner and the respondent Rodolfo S. Ancheta, and of the resolution of the
appellate court denying the motion for reconsideration of the said resolution.
This case arose from the following facts:
After their marriage on March 5, 1959, the petitioner and the respondent resided in
Muntinlupa, Metro Manila. They had eight children during their coverture, whose
names and dates of births are as follows:
a. ANA MARIE B . ANCHETA – born October 6, 1959
b. RODOLFO B. ANCHETA, JR. – born March 7, 1961
c. VENANCIO MARIANO B. ANCHETA – born May 18, 1962
d. GERARDO B. ANCHETA – born April 8, 1963
e. KATHRINA B. ANCHETA – born October 29, 1965
f. ANTONIO B. ANCHETA – born March 6, 1967
g. NATASHA MARTINA B. ANCHETA - born August 2, 1968
h. FRITZIE YOLANDA B. ANCHETA – born November 19, 19703
On December 6, 1992, the respondent left the conjugal home and abandoned the
petitioner and their children. On January 25, 1994, petitioner Marietta Ancheta filed
a petition with the Regional Trial Court of Makati, Branch 40, against the respondent
for the dissolution of their conjugal partnership and judicial separation of property
with a plea for support and support pendente lite. The case was docketed as Sp. Proc.
No. M-3735. At that time, the petitioner was renting a house at No. 72 CRM Avenue
cor. CRM Corazon, BF Homes, Almanza, Las Piñas, Metro Manila.4
On April 20, 1994, the parties executed a Compromise Agreement 5 where some of
the conjugal properties were adjudicated to the petitioner and her eight children,
including the following:
b. A parcel of land (adjoining the two lots covered by TCT Nos. 120082 and TCT No.
120083-Cavite) located at Bancal, Carmona, Cavite, registered in the name of the
family Ancheta. Biofood Corporation under TCT No. 310882, together with the resort
Munting Paraiso, Training Center, four-storey building, pavilion, swimming pool and
all improvements. All of the shares of stocks of Ancheta Biofoods Corporation were
distributed one-third (1/3) to the petitioner and the eight children one-twelfth (1/12)
each.6
The court rendered judgment based on the said compromise agreement.
Conformably thereto, the respondent vacated, on June 1, 1994, the resort Munting
Paraiso and all the buildings and improvements thereon. The petitioner, with the
knowledge of the respondent, thenceforth resided in the said property.
In the meantime, the respondent intended to marry again. On June 5, 1995, he filed
a petition with the Regional Trial Court of Naic, Cavite, Branch 15, for the declaration
of nullity of his marriage with the petitioner on the ground of psychological
incapacity. The case was docketed as Sp. Proc. No. NC-662. Although the respondent
knew that the petitioner was already residing at the resort Munting Paraiso in Bancal,
Carmona, Cavite, he, nevertheless, alleged in his petition that the petitioner was
residing at No. 72 CRM Avenue corner CRM Corazon, BF Homes, Almanza, Las Piñas,
Metro Manila, "where she may be served with summons."7 The clerk of court issued
summons to the petitioner at the address stated in the petition. 8 The sheriff served
the summons and a copy of the petition by substituted service on June 6, 1995 on
the petitioner’s son, Venancio Mariano B. Ancheta III, at his residence in Bancal,
Carmona, Cavite.9
On June 21, 1995, Sheriff Jose R. Salvadora, Jr. submitted a Return of Service to the
court stating that the summons and a copy of the petition were served on the
petitioner through her son Venancio Mariano B. Ancheta III on June 6, 1995:
RETURN OF SERVICE
This is to certify that the summons together with the copy of the complaint and its
annexes was received by the herein defendant thru his son Venancio M.B. Ancheta
[III] as evidenced by the signature appearing on the summons. Service was made on
June 6, 1995.
June 21, 1995, Naic, Cavite.
(Sgd.) JOSE R. SALVADORA, JR.
Sheriff10
The petitioner failed to file an answer to the petition. On June 22, 1995, the
respondent filed an "Ex-Parte Motion to Declare Defendant as in Default" setting it
for hearing on June 27, 1995 at 8:30 a.m. During the hearing on the said date, there
was no appearance for the petitioner. The public prosecutor appeared for the State
and offered no objection to the motion of the respondent who appeared with
counsel. The trial court granted the motion and declared the petitioner in default,
and allowed the respondent to adduce evidence ex-parte. The respondent testified
in his behalf and adduced documentary evidence. On July 7, 1995, the trial court
issued an Order granting the petition and declaring the marriage of the parties void
ab initio.11 The clerk of court issued a Certificate of Finality of the Order of the court
on July 16, 1996.12
On February 14, 1998, Valentine’s Day, the respondent and Teresita H. Rodil were
married in civil rights before the municipal mayor of Indang, Cavite. 13
On July 7, 2000, the petitioner filed a verified petition against the respondent with
the Court of Appeals under Rule 47 of the Rules of Court, as amended, for the
annulment of the order of the RTC of Cavite in Special Proceedings No. NC-662. The
case was docketed as CA-G.R. SP No. 59550. The petitioner alleged, inter alia, that
the respondent committed gross misrepresentations by making it appear in his
petition in Sp. Proc. No. NC-662 that she was a resident of No. 72 CRM Avenue cor.
CRM Corazon, BF Homes, Almanza, Las Piñas, Metro Manila, when in truth and in
fact, the respondent knew very well that she was residing at Munting Paraiso, Bancal,
Carmona, Cavite. According to the petitioner, the respondent did so to deprive her
of her right to be heard in the said case, and ultimately secure a favorable judgment
without any opposition thereto. The petitioner also alleged that the respondent
caused the service of the petition and summons on her by substituted service
through her married son, Venancio Mariano B. Ancheta III, a resident of Bancal,
Carmona, Cavite, where the respondent was a resident. Furthermore, Venancio M.B.
Ancheta III failed to deliver to her the copy of the petition and summons. Thus,
according to the petitioner, the order of the trial court in favor of the respondent was
null and void (1) for lack of jurisdiction over her person; and (2) due to the extrinsic
fraud perpetrated by the respondent. She further contended that there was no
factual basis for the trial court’s finding that she was suffering from psychological
incapacity. Finally, the petitioner averred that she learned of the Order of the RTC
only on January 11, 2000. Appended to the petition, inter alia, were the affidavits of
the petitioner and of Venancio M.B. Ancheta III.
The petitioner prayed that, after due proceedings, judgment be rendered in her
favor, thus:
WHEREFORE, petitioner respectfully prays this Honorable Court to render Judgment
granting the Petition.
1. Declaring null and void the Order dated June 7, 1995 (of the Regional
Trial Court, Branch 14, Naic, Cavite).
2. Ordering respondent to pay petitioner
a. ₱1,000,000.00 as moral damages;
b. ₱500,000.00 as exemplary damages;
c. ₱200,000.00 as attorney’s fees plus P7,500.00 per diem for
every hearing;
d. ₱100,000.00 as litigation expenses;
e. Costs of suit.14
On July 13, 2000, the CA issued a Resolution dismissing the petition on the following
ground:
We cannot give due course to the present petition in default or in the absence of any
clear and specific averment by petitioner that the ordinary remedies of new trial,
appeal, petition for relief or other appropriate remedies are no longer available
through no fault of petitioner. Neither is there any averment or allegation that the
present petition is based only on the grounds of extrinsic fraud and lack of
jurisdiction. Nor yet that, on the assumption that extrinsic fraud can be a valid ground
therefor, that it was not availed of, or could not have been availed of, in a motion for
new trial, or petition for relief.15
The petitioner filed a motion for the reconsideration of the said resolution,
appending thereto an amended petition in which she alleged, inter alia, that:
4. This petition is based purely on the grounds of extrinsic fraud and lack of
jurisdiction.
 5. This petition has not prescribed; it was filed within the four-year period
after discovery of the extrinsic fraud.
6. The ground of extrinsic fraud has not been availed of, or could not have
been availed of in a motion for new trial or petition for relief.
7. The ground of lack of jurisdiction is not barred by laches and/or
estoppel.
8. The ordinary remedies of new trial, appeal, petition for relief or other
appropriate remedies were no longer available through no fault of
petitioner; neither has she ever availed of the said remedies. This petition
is the only available remedy to her.16
The petitioner also alleged therein that the order of the trial court nullifying her and
the respondent’s marriage was null and void for the court a quo’s failure to order the
public prosecutor to conduct an investigation on whether there was collusion
between the parties, and to order the Solicitor General to appear for the State.
On September 27, 2000, the CA issued a Resolution denying the said motion.
The petitioner filed a petition for review on certiorari with this Court alleging that the
CA erred as follows:
1. In failing to take into consideration the kind of Order which was sought
to be annulled.
2. In finding that the Petition was procedurally flawed.
3. In not finding that the Petition substantially complied with the
requirements of the Rules of Court.
4. In failing to comply with Section 5, Rule 47, Rules of Court.
5. In not even considering/resolving Petitioner’s Motion to Admit the
Amended Petition; and in not admitting the Amended Petition.
6. In failing to apply the Rules of Procedure with liberality.17
The petition is meritorious.
An original action in the Court of Appeals under Rule 47 of the Rules of Court, as
amended, to annul a judgment or final order or resolution in civil actions of the RTC
may be based on two grounds: (a) extrinsic fraud; or (b) lack of jurisdiction. If based
on extrinsic fraud, the remedy is subject to a condition precedent, namely, the
ordinary remedies of new trial, appeal, petition for relief or other appropriate
remedies are no longer available through no fault of the petitioner. 18 The petitioner
must allege in the petition that the ordinary remedies of new trial, appeal, petition
for relief from judgment, under Rule 38 of the Rules of Court are no longer available
through no fault of hers; otherwise, the petition will be dismissed. If the petitioner
fails to avail of the remedies of new trial, appeal or relief from judgment through her
own fault or negligence before filing her petition with the Court of Appeals, she
cannot resort to the remedy under Rule 47 of the Rules; otherwise, she would benefit
from her inaction or negligence.19
It is not enough to allege in the petition that the said remedies were no longer
available through no fault of her own. The petitioner must also explain and justify her
failure to avail of such remedies. The safeguard was incorporated in the rule precisely
to avoid abuse of the remedy.20 Access to the courts is guaranteed. But there must
be limits thereto. Once a litigant’s rights have been adjudicated in a valid final
judgment of a competent court, he should not be granted an unbridled license to sue
anew. The prevailing party should not be vexed by subsequent suits. 21
In this case, the petitioner failed to allege in her petition in the CA that the ordinary
remedies of new trial, appeal, and petition for relief, were no longer available
through no fault of her own. She merely alleged therein that she received the assailed
order of the trial court on January 11, 2000. The petitioner’s amended petition did
not cure the fatal defect in her original petition, because although she admitted
therein that she did not avail of the remedies of new trial, appeal or petition for relief
from judgment, she did not explain why she failed to do so.
We, however, rule that the Court of Appeals erred in dismissing the original petition
and denying admission of the amended petition. This is so because apparently, the
Court of Appeals failed to take note from the material allegations of the petition, that
the petition was based not only on extrinsic fraud but also on lack of jurisdiction over
the person of the petitioner, on her claim that the summons and the copy of the
complaint in Sp. Proc. No. NC-662 were not served on her. While the original petition
and amended petition did not state a cause of action for the nullification of the
assailed order on the ground of extrinsic fraud, we rule, however, that it states a
sufficient cause of action for the nullification of the assailed order on the ground of
lack of jurisdiction of the RTC over the person of the petitioner, notwithstanding the
absence of any allegation therein that the ordinary remedy of new trial or
reconsideration, or appeal are no longer available through no fault of the petitioner.
In a case where a petition for the annulment of a judgment or final order of the RTC
filed under Rule 47 of the Rules of Court is grounded on lack of jurisdiction over the
person of the defendant/respondent or over the nature or subject of the action, the
petitioner need not allege in the petition that the ordinary remedy of new trial or
reconsideration of the final order or judgment or appeal therefrom are no longer
available through no fault of her own. This is so because a judgment rendered or final
order issued by the RTC without jurisdiction is null and void and may be assailed any
time either collaterally or in a direct action or by resisting such judgment or final
order in any action or proceeding whenever it is invoked,22 unless barred by laches.23
In this case, the original petition and the amended petition in the Court of Appeals,
in light of the material averments therein, were based not only on extrinsic fraud, but
also on lack of jurisdiction of the trial court over the person of the petitioner because
of the failure of the sheriff to serve on her the summons and a copy of the complaint.
She claimed that the summons and complaint were served on her son, Venancio
Mariano B. Ancheta III, who, however, failed to give her the said summons and
complaint.
Even a cursory reading of the material averments of the original petition and its
annexes will show that it is, prima facie meritorious; hence, it should have been given
due course by the Court of Appeals.
In Paramount Insurance Corporation v. Japzon,24 we held that jurisdiction is acquired
by a trial court over the person of the defendant either by his voluntary appearance
in court and his submission to its authority or by service of summons. The service of
summons and the complaint on the defendant is to inform him that a case has been
filed against him and, thus, enable him to defend himself. He is, thus, put on guard
as to the demands of the plaintiff or the petitioner. Without such service in the
absence of a valid waiver renders the judgment of the court null and void. 25
Jurisdiction cannot be acquired by the court on the person of the defendant even if
he knows of the case against him unless he is validly served with summons.26
Summons and complaint may be served on the defendant either by handing a copy
thereof to him in person, or, if he refuses to receive and sign for it, by tendering it to
her.27 However, if there is impossibility of prompt service of the summons personally
on the defendant despite diligent efforts to find him, service of the summons may be
effected by substituted service as provided in Section 7, Rule 14 of the said Rules:
SEC. 7. Substituted service.— If, for justifiable causes, the defendant cannot be
served within a reasonable time as provided in the preceding section, service may be
effected (a) by leaving copies of the summons at the defendant’s residence with
some person of suitable age and discretion then residing therein, or (b) by leaving
the copies of defendant’s office or regular place of business with some competent
person in charge thereof.28
In Miranda v. Court of Appeals,29 we held that the modes of service should be strictly
followed in order that the court may acquire jurisdiction over the person of the
defendant. Thus, it is only when a defendant cannot be served personally within a
reasonable time that substituted service may be made by stating the efforts made to
find him and personally serve on him the summons and complaint and the fact that
such effort failed.30 This statement should be made in the proof of service to be
accomplished and filed in court by the sheriff. This is necessary because substituted
service is a derogation of the usual method of service. It has been held that
substituted service of summons is a method extraordinary in character; hence, may
be used only as prescribed and in the circumstances categorized by statutes.31
As gleaned from the petition and the amended petition in the CA and the annexes
thereof, the summons in Sp. Proc. No. NC-662 was issued on June 6, 1995.32 On the
same day, the summons was served on and received by Venancio Mariano B. Ancheta
III,33 the petitioner’s son. When the return of summons was submitted to the court
by the sheriff on June 21, 1995, no statement was made on the impossibility of
locating the defendant therein within a reasonable time, or that any effort was made
by the sheriff to locate the defendant. There was no mention therein that Venancio
Mariano Ancheta III was residing at No. 72 CRM Avenue cor. CRM Corazon, BF Homes,
Almanza, Las Piñas, where the petitioner (defendant therein) was allegedly residing.
It turned out that Venancio Mariano B. Ancheta III had been residing at Bancal,
Carmona, Cavite, and that his father merely showed him the summons and the
complaint and was made to affix his signature on the face of the summons; he was
not furnished with a copy of the said summons and complaint.
4. From the time my father started staying at Munting Paraiso, Bancal,
Carmona, Cavite, I have been residing on the adjoining land consisting of
two (2) lots later apportioned to my father as his share of the conjugal
partnership. Since then, I have been residing therein up to the present.
5. On June 6, 1995, at Bancal, Carmona, Cavite (at my residence situated
on my father’s lot), my father came to see me and then asked me to sign
and I did sign papers which he (my father) and the Sheriff did not allow me
to read. Apparently, these papers are for the Summons to my mother in
the case for annulment of marriage filed by my father against her. I was
not given any copy of the Summons and/or copy of the
complaint/petition.34
We, thus, rule that the Court of Appeals acted arbitrarily in dismissing the original
petition of the petitioner and the amended petition for annulment of the assailed
order grounded on lack of jurisdiction over the person of the petitioner.
The action in Rule 47 of the Rules of Court does not involve the merits of the final
order of the trial court. However, we cannot but express alarm at what transpired in
the court a quo as shown by the records. The records show that for the petitioner’s
failure to file an answer to the complaint, the trial court granted the motion of the
respondent herein to declare her in default. The public prosecutor condoned the acts
of the trial court when he interposed no objection to the motion of the respondent.
The trial court forthwith received the evidence of the respondent ex-parte and
rendered judgment against the petitioner without a whimper of protest from the
public prosecutor. The actuations of the trial court and the public prosecutor are in
defiance of Article 48 of the Family Code, which reads:
Article 48. In all cases of annulment or declaration of absolute nullity of marriage, the
Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf
of the State to take steps to prevent collusion between the parties and to take care
that evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be based upon
a stipulation of facts or confession of judgment.35
The trial court and the public prosecutor also ignored Rule 18, Section 6 of the 1985
Rules of Court (now Rule 9, Section 3[e] of the 1997 Rules of Civil Procedure) which
provides:
Sec. 6. No defaults in actions for annulment of marriage or for legal separation.— If
the defendant in an action for annulment of marriage or for legal separation fails to
answer, the court shall order the prosecuting attorney to investigate whether or not
a collusion between the parties exits, and if there is no collusion, to intervene for the
State in order to see to it that the evidence submitted is not fabricated.36
In the case of Republic v. Court of Appeals,37 this Court laid down the guidelines in
the interpretation and application of Art. 48 of the Family Code, one of which
concerns the role of the prosecuting attorney or fiscal and the Solicitor General to
appear as counsel for the State:
(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state. No decision shall be handed down unless
the Solicitor General issues a certification, which will be quoted in the decision, briefly
stating therein his reasons for his agreement or opposition, as the case may be, to
the petition. The Solicitor General, along with the prosecuting attorney, shall submit
to the court such certification within fifteen (15) days from the date the case is
deemed submitted for resolution of the court. The Solicitor General shall discharge
the equivalent function of the defensor vinculi contemplated under Canon 1095. 38
This Court in the case of Malcampo-Sin v. Sin39 reiterated its pronouncement in
Republic v. Court of Appeals,40 regarding the role of the prosecuting attorney or fiscal
and the Solicitor General to appear as counsel for the State. 41 The trial court, abetted
by the ineptitude, if not sheer negligence of the public prosecutor, waylaid the Rules
of Court and the Family Code, as well as the rulings of this Court.
The task of protecting marriage as an inviolable social institution requires vigilant and
zealous participation and not mere pro-forma compliance. The protection of
marriage as a sacred institution requires not just the defense of a true and genuine
union but the exposure of an invalid one as well.42
A grant of annulment of marriage or legal separation by default is fraught with the
danger of collusion. Hence, in all cases for annulment, declaration of nullity of
marriage and legal separation, the prosecuting attorney or fiscal is ordered to appear
on behalf of the State for the purpose of preventing any collusion between the parties
and to take care that their evidence is not fabricated or suppressed. If the defendant-
spouse fails to answer the complaint, the court cannot declare him or her in default
but instead, should order the prosecuting attorney to determine if collusion exists
between the parties. The prosecuting attorney or fiscal may oppose the application
for legal separation or annulment through the presentation of his own evidence, if in
his opinion, the proof adduced is dubious and fabricated.
Our constitution is committed to the policy of strengthening the family as a basic
social institution. Our family law is based on the policy that marriage is not a mere
contract, but a social institution in which the State is vitally interested. The State can
find no stronger anchor than on good, solid and happy families. The break-up of
families weakens our social and moral fabric; hence, their preservation is not the
concern of the family members alone.43 Whether or not a marriage should continue
to exist or a family should stay together must not depend on the whims and caprices
of only one party, who claims that the other suffers psychological imbalance,
incapacitating such party to fulfill his or her marital duties and obligations.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Resolutions of the
Court of Appeals dated July 13, 2000 and September 27, 2000 in CA-G.R. SP No. 59550
are hereby SET ASIDE and REVERSED. Let the records of CA-G.R. SP No. 59550 be
remanded to the Court of Appeals for further proceedings conformably with the
Decision of this Court and Rule 47 of the Rules of Court, as amended.
SO ORDERED.
 G.R. No. L-13553 February 23, 1960
JOSE DE OCAMPO, Petitioner, vs. SERAFINA FLORENCIANO,Respondent.
Joselito J. Coloma for petitioner.
BENGZON, J.: chanrobles virtual law library
Action for legal separation by Jose de Ocampo against his wife Serafina, on the
ground of adultery. The court of first instance of Nueva Ecija dismissed it. The Court
of Appeals affirmed, holding there was confession of judgment, plus condonation or
consent to the adultery and prescription.chanroblesvirtualawlibrary chanrobles
virtual law library
We granted certiorari to consider the application of articles 100 and 101 of the New
Civil Code, which for convenience are quoted herewith:
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 be
claimed by either of them. Collusion between the parties to obtain legal separation
shall cause the dismissal of the petition.chanroblesvirtualawlibrary chanrobles
virtual law library
ART. 101.-No decree of legal separation shall be promulgated upon a stipulation of
facts or by confession of judgment.chanroblesvirtualawlibrary chanrobles virtual
law library
In case of non-appearance of the defendant, the court shall order the prosecuting
attorney to inquire whether or not a collusion between the parties exists. If there is
no collusion, the prosecuting attorney shall intervene for the State in order to take
care that the evidence for the plaintiff is not fabricated.
The record shows that on July 5, 1955, the complaint for legal separation was filed.
As amended, it described their marriage performed in 1938, and the commission of
adultery by Serafina, in March 1951 with Jose Arcalas, and in June 1955 with Nelson
Orzame.chanroblesvirtualawlibrary chanrobles virtual law library
Because the defendant made no answer, the court defaulted her, and pursuant to
Art. 101 above, directed the provincial fiscal to investigate whether or not collusion
existed between the parties. The fiscal examined the defendant under oath, and
then reported to the Court that there was no collusion. The plaintiff presented his
evidence consisting of the testimony of Vicente Medina, Ernesto de Ocampo, Cesar
Enriquez, Mateo Damo, Jose de Ocampo and Capt. Serafin
Gubat.chanroblesvirtualawlibrary chanrobles virtual law library
According to the Court of Appeals, the evidence thus presented shows that
"plaintiff and defendant were married in April 5, 1938 by a religious ceremony in
Guimba, Nueva Ecija, and had lived thereafter as husband and wife. They begot
several children who are now living with plaintiff. In March, 1951, plaintiff
discovered on several occasions that his wife was betraying his trust by maintaining
illicit relations with one Jose Arcalas. Having found the defendant carrying marital
relations with another man plaintiff sent her to Manila in June 1951 to study beauty
culture, where she stayed for one year. Again, plaintiff discovered that while in the
said city defendant was going out with several other men, aside from Jose Arcalas.
Towards the end of June, 1952, when defendant had finished studying her course,
she left plaintiff and since then they had lived
separately.chanroblesvirtualawlibrary chanrobles virtual law library
"On June 18, 1955, plaintiff surprised his wife in the act of having illicit relations
with another man by the name of Nelson Orzame. Plaintiff signified his intention of
filing a petition for legal separation, to which defendant manifested her conformity
provided she is not charged with adultery in a criminal action. Accordingly, plaintiff
filed on July 5, 1955, a petition for legal separation."chanrobles virtual law library
The Court of Appeals held that the husband's right to legal separation on account of
the defendant's adultery with Jose Arcalas had prescribed, because his action was
not filed within one year from March 1951 when plaintiff discovered her infidelity.
(Art. 102, New Civil Code) We must agree with the Court of Appeals on this
point. 1 chanrobles virtual law library
As to the adultery with Nelson Orzame, the appellate court found that in the night
of June 18, 1955, the husband upon discovering the illicit connection, expressed his
wish to file a petition for legal separation and defendant readily agreed to such
filing. And when she was questioned by the Fiscal upon orders of the court, she
reiterated her conformity to the legal separation even as she admitted having had
sexual relations with Nelson Orzame. Interpreting these facts virtually to mean a
confession of judgment the Appellate Court declared that under Art. 101, legal
separation could not be decreed.chanroblesvirtualawlibrary chanrobles virtual law
library
As we understand the article, it does not exclude, as evidence, any admission or
confession made by the defendant outside of the court. It merely prohibits a decree
of separation upon a confession of judgment. Confession of judgment usually
happens when the defendant appears in court and confesses the right of plaintiff to
judgment or files a pleading expressly agreeing to the plaintiff's demand. 2 This is
not occur.chanroblesvirtualawlibrary chanrobles virtual law library
Yet, even supposing that the above statement of defendant constituted practically a
confession of judgment, inasmuch as there is evidence of the
adultery independently of such statement, the decree may and should be granted,
since it would not be based on her confession, but upon evidence presented by the
plaintiff. What the law prohibits is a judgment based exclusively or mainly on
defendant's confession. If a confession defeats the action ipso facto, any defendant
who opposes the separation will immediately confess judgment, purposely to
prevent it.chanroblesvirtualawlibrary chanrobles virtual law library
The mere circumstance that defendants told the Fiscal that she "like also" to be
legally separated from her husband, is no obstacle to the successful prosecution of
the action. When she refused to answer the complaint, she indicated her
willingness to be separated. Yet, the law does not order the dismissal. Allowing the
proceeding to continue, it takes precautions against collusion, which implies more
than consent or lack of opposition to the
agreement.chanroblesvirtualawlibrary chanrobles virtual law library
Needless to say, when the court is informed that defendant equally desires the
separation and admitted the commission of the offense, it should be doubly careful
lest a collusion exists. (The Court of Appeals did not find collusion.)chanrobles
virtual law library
Collusion in divorce or legal separation means the agreement.
. . . between husband and wife for one of them to commit, or to appear to commit,
or to be represented in court as having committed, a matrimonial offense, or to
suppress evidence of a valid defense, for the purpose of enabling the other to
obtain a divorce. This agreement, if not express, may be implied from the acts of
the parties. It is a ground for denying the divorce. (Griffiths vs. Griffiths, 69 N. J. Eq.
689 60 Atl. 1099; Sandoz vs. Sandoz, 107 Ore. 282, 214 Pas. 590.).
In this case, there would be collusion if the parties had arranged to make it appear
that a matrimonial offense had been committed although it was not, or if the
parties had connived to bring about a legal separation even in the absence of
grounds therefor.chanroblesvirtualawlibrary chanrobles virtual law library
Here, the offense of adultery had really taking place, according to the evidence. The
defendant could not have falsely told the adulterous acts to the Fiscal, because her
story might send her to jail the moment her husband requests the Fiscal to
prosecute. She could not have practiced deception at such a personal
risk.chanroblesvirtualawlibrary chanrobles virtual law library
In this connection, it has been held that collusion may not be inferred from the
mere fact that the guilty party confesses to the offense and thus enables the other
party to procure evidence necessary to prove it. (Williams vs. Williams, [N. Y.] 40 N.
E. (2d) 1017; Rosenweig vs. Rosenweig, 246 N. Y. Suppl. 231; Conyers, vs. Conyers,
224 S. W. [2d] 688.).chanroblesvirtualawlibrary chanrobles virtual law library
And proof that the defendant desires the divorce and makes no defense, is not by
itself collusion. (Pohlman vs. Pohlman, [N. J.] 46 Atl. Rep.
658.).chanroblesvirtualawlibrary chanrobles virtual law library
We do not think plaintiff's failure actively to search for defendant and take her
home (after the latter had left him in 1952) constituted condonation or consent to
her adulterous relations with Orzame. It will be remembered that she "left" him
after having sinned with Arcalas and after he had discovered her dates with other
men. Consequently, it was not his duty to search for her to bring her home. Hers
was the obligation to return.chanroblesvirtualawlibrary chanrobles virtual law
library
Two decisions 3 are cited wherein from apparently similar circumstances, this Court
inferred the husband's consent to or condonation of his wife's misconduct.
However, upon careful examination, a vital difference will be found: in both
instances, the husband had abandoned his wife; here it was the wife who "left" her
husband.chanroblesvirtualawlibrary chanrobles virtual law library
Wherefore, finding no obstacles to the aggrieved husband's petition we hereby
reverse the appealed decision and decree a legal separation between these spouse,
all the consequent effects. Costs of all instances against Serafina Florenciano. So
ordered.ch
 [G.R. No. 137590. March 26, 2001]
FLORENCE MALCAMPO-SIN, petitioner, vs. PHILIPP T. SIN, respondent.
DECISION
PARDO, J.:
The Family Code emphasizes the permanent nature of marriage, hailing it as the
foundation of the family.i It is this inviolability which is central to our traditional and
religious concepts of morality and provides the very bedrock on which our society
finds stability.ii Marriage is immutable and when both spouses give their consent to
enter it, their consent becomes irrevocable, unchanged even by their independent
wills.
However, this inviolability depends on whether the marriage exists and is valid.
If it is void ab initio, the permanence of the union becomes irrelevant, and the Court
can step in to declare it so. Article 36 of the Family Code is the justification. iii Where
it applies and is duly proven, a judicial declaration can free the parties from the rights,
obligations, burdens and consequences stemming from their marriage.
A declaration of nullity of marriage under Article 36 of the Family Code requires
the application of procedural and substantive guidelines. While compliance with
these requirements mostly devolves upon petitioner, the State is likewise mandated
to actively intervene in the procedure. Should there be non-compliance by the State
with its statutory duty, there is a need to remand the case to the lower court for
proper trial.
The Case
What is before the Courtiv is an appeal from a decision of the Court of Appeals v
which affirmed the decision of the Regional Trial Court, Branch 158, Pasig City vi
dismissing petitioner Florence Malcampo-Sins (hereafter Florence) petition for
declaration of nullity of marriage due to psychological incapacity for insufficiency of
evidence.
The Facts
On January 4, 1987, after a two-year courtship and engagement, Florence and
respondent Philipp T. Sin (hereafter Philipp), a Portugese citizen, were married at St.
Jude Catholic Parish in San Miguel, Manila.vii
On September 20, 1994, Florence filed with the Regional Trial Court, Branch
158, Pasig City, a complaint for declaration of nullity of marriage against Philipp. viii
Trial ensued and the parties presented their respective documentary and testimonial
evidence.
On June 16, 1995, the trial court dismissed Florences petition.ix
On December 19, 1995, Florence filed with the trial court a notice of appeal to
the Court of Appeals.x
After due proceedings, on April 30, 1998, the Court of Appeals promulgated its
decision, the dispositive portion of which reads:
IN THE LIGHT OF ALL THE FOREGOING, the Appeal is DISMISSED. The Decision
appealed from is AFFIRMED. Cost against the Appellant.xi
On June 23, 1998, petitioner filed with the Court of Appeals a motion for
reconsideration of the aforequoted decision. xii
On January 19, 1999, the Court of Appeals denied petitioners motion for
reconsideration.xiii
Hence, this appeal.xiv
The Courts Ruling
We note that throughout the trial in the lower court, the State did not
participate in the proceedings. While Fiscal Jose Danilo C. Jabson xv filed with the trial
court a manifestation dated November 16, 1994, stating that he found no collusion
between the parties,xvi he did not actively participate therein. Other than entering his
appearance at certain hearings of the case, nothing more was heard from him.
Neither did the presiding Judge take any step to encourage the fiscal to contribute to
the proceedings.
The Family Code mandates:
Article 48. In all cases of annulment or declaration of absolute nullity of
marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to
appear on behalf of the State to take steps to prevent collusion between the parties
and to take care that evidence is not fabricated or suppressed (underscoring ours).
In the cases referred to in the preceeding paragraph, no judgment shall be
based upon a stipulation of facts or confession of judgment.
It can be argued that since the lower court dismissed the petition, the evil
sought to be prevented (i.e., dissolution of the marriage) did not come about, hence,
the lack of participation of the State was cured. Not so. The task of protecting
marriage as an inviolable social institution requires vigilant and zealous participation
and not mere pro-forma compliance. The protection of marriage as a sacred
institution requires not just the defense of a true and genuine union but the exposure
of an invalid one as well. This is made clear by the following pronouncement:
(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state. No decision shall be handed down unless
the Solicitor General issues a certification, which will be quoted in the decision, xvii
briefly stating therein his reasons for his agreement or opposition as the case may be,
to the petition. The Solicitor-General shall discharge the equivalent function of the
defensor vinculi contemplated under Canon 1095 (underscoring ours). xviii
The records are bereft of any evidence that the State participated in the
prosecution of the case not just at the trial level but on appeal with the Court of
Appeals as well. Other than the manifestation filed with the trial court on November
16, 1994, the State did not file any pleading, motion or position paper, at any stage
of the proceedings.
In Republic of the Philippines v. Erlinda Matias Dagdag,xix while we upheld the
validity of the marriage, we nevertheless characterized the decision of the trial court
as prematurely rendered since the investigating prosecutor was not given an
opportunity to present controverting evidence before the judgment was rendered.
This stresses the importance of the participation of the State.
Having so ruled, we decline to rule on the factual disputes of the case, this being
within the province of the trial court upon proper re-trial.
Obiter Dictum
For purposes of re-trial, we guide the parties thus: In Republic vs. Court of
Appeals,xx the guidelines in the interpretation and application of Article 36 of the
Family Code are as follows (omitting guideline (8) in the enumeration as it was
already earlier quoted):
(1) The burden of proof to show the nullity of the marriage belongs to the
plaintiff. Any doubt should be resolved in favor of the existence and continuation of
the marriage and against its dissolution and nullity. This is rooted in the fact that both
our Constitution and our laws cherish the validity of marriage and unity of the family.
Thus, our Constitution devotes an entire Article on the Family, recognizing it as the
foundation of the nation. It decrees marriage as legally inviolable, thereby protecting
it from dissolution at the whim of the parties. Both the family and marriage are to be
protected by the state. The Family Code echoes this constitutional edict on marriage
and the family and emphasizes their permanence, inviolability and solidarity.
(2) The root cause of the psychological incapacity must be: a) medically or
clinically identified, b) alleged in the complaint, c) sufficiently proven by experts and
d) clearly explained in the decision. Article 36 of the Family Code requires that the
incapacity must be psychological-not physical, although its manifestations and/or
symptoms may be physical. The evidence must convince the court that the parties,
or one of them, was mentally or psychically (sic) ill to such an extent that the person
could not have known the obligations he was assuming, or knowing them, could not
have given valid assumption thereof. Although no example of such incapacity need
be given here so as not to limit the application of the provision under the principle of
ejusdem generis, nevertheless such root cause must be identified as a psychological
illness and its incapacitating nature fully explained. Expert evidence may be given by
qualified psychiatrists and clinical psychologists.
(3) The incapacity must be proven to be existing at the time of the celebration
of the marriage. The evidence must show that the illness was existing when the
parties exchanged their I dos. The manifestation of the illness need not be
perceivable at such time, but the illness itself must have attached at such moment,
or prior thereto.
(4) Such incapacity must also be shown to be medically or clinically permanent
or incurable. Such incurability may be absolute or even relative only in regard to the
other spouse, not necessarily absolutely against everyone of the same sex.
Furthermore, such incapacity must be relevant to the assumption of marriage
obligations, not necessarily to those not related to marriage, like the exercise of a
profession or employment in a job. Hence, a pediatrician may be effective in
diagnosing illnesses of children and prescribing medicine to cure them but may not
be psychologically capacitated to procreate, bear and raise his/her own children as
an essential obligation of marriage.
(5) Such illness must be grave enough to bring about the disability of the party
to assume the essential obligations of marriage. Thus, mild characteriological
peculiarities, mood changes, occasional emotional outbursts cannot be accepted as
root causes. The illness must be shown as downright incapacity or inability, not
refusal, neglect or difficulty, much less ill will. In other words, there is a natal or
supervening disabling factor in the person, an adverse integral element in the
personality structure that effectively incapacitates the person from really accepting
and thereby complying with the obligations essential to marriage.
(6) The essential marital obligations must be those embraced by Articles 68 up
to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221
and 225 of the same Code in regard to parents and their children. Such non-complied
marital obligation(s) must also be stated in the petition, proven by evidence and
included in the text of the decision.
(7) Interpretations given by the National Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines, while not controlling or decisive, should be given
great respect by our courts.

The Fallo

WHEREFORE, the Court REVERSES and SETS ASIDE the appealed decision of the
Court of Appeals in CA-G. R. CV No. 51304, promulgated on April 30, 1998 and the
decision of the Regional Trial Court, Branch 158, Pasig City in Civil Case No. 3190,
dated June 16, 1995.
Let the case be REMANDED to the trial court for proper trial.
No costs.
SO ORDERED.
 [G.R. No. 116607. April 10, 1996]
EMILIO TUASON, petitioner, vs. COURT OF APPEALS and MARIA VICTORIA L.
TUASON, respondents.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; RELIEF FROM JUDGMENT; ALLOWED ONLY
IN EXCEPTIONAL CASES WHERE THERE IS NO OTHER AVAILABLE OR ADEQUATE
REMEDY. - A petition for relief from judgment is an equitable remedy; it is
allowed only in exceptional cases where there is no other available or adequate
remedy. When a party has another remedy available to him, which may be
either a motion for new trial or appeal from an adverse decision of the trial
court, and he was not prevented by fraud, accident, mistake or excusable
negligence from filing such motion or taking such appeal, he cannot avail
himself of this petition. Indeed, relief will not be granted to a party who seeks
avoidance from the effects of the judgment when the loss of the remedy at law
was due to his own negligence; otherwise the petition for relief can be used to
revive the right to appeal which have been lost thru inexcusable negligence.
2. ID.; ID.; ID.; WHEN AVAILED MUST BE BASED ON THE GROUND OF FRAUD,
ACCIDENT, MISTAKE OR EXCUSABLE NEGLIGENCE AND THAT IT IS SHOWN
THAT PETITIONER HAS A GOOD, SUBSTANTIAL AND MERITORIOUS DEFENSE
OR CAUSE OF ACTION. - A petition for relief from judgment is governed by Rule
38, Section 2 of the Revised Rules of Court. A final and executory judgment or
order of the Regional Trial Court may be set aside on the ground of fraud,
accident, mistake or excusable negligence. In addition, the petitioner must
assert facts showing that he has a good, substantial and meritorious defense or
cause of action. If the petition is granted, the court shall proceed to hear and
determine the case as if a timely motion for new trial had been granted therein.
3. ID.; ID.; ID.; NOTICES SENT TO COUNSEL OF RECORD, BINDING UPON THE
CLIENT. The failure of petitioners counsel to notify him on time of the adverse
judgment to enable him to appeal therefrom is negligence which is not
excusable. Notice sent to counsel of record is binding upon the client and the
neglect or failure of counsel to inform him of an adverse judgment resulting in
the loss of this right to appeal is not a ground for setting aside a judgment valid
and regular on its face.
4. ID.; ID.; ID.; COUNSEL REQUIRED TO INFORM THE TRIAL COURT THE REASON FOR
HIS CLIENTS NON-APPEARANCE AT THE SCHEDULED HEARINGS. - Similarly
inexcusable was the failure of his former counsel to inform the trial court of
petitioners confinement and medical treatment as the reason for his non-
appearance at the scheduled hearings. Petitioner has not given any reason why
his former counsel, intentionally or unintentionally, did not inform the court of
this fact. This led the trial court to order the case deemed submitted for decision
on the basis of the evidence presented by the private respondent alone. To
compound the negligence of petitioners counsel, the order of the trial court was
never assailed via a motion for reconsideration.
5. ID.; EVIDENCE; CREDIBILITY OF WITNESSES; FACTUAL FINDINGS OF THE TRIAL
COURT UPHELD ABSENT PROOF THAT THE WITNESSES TESTIMONIES ARE
CLEARLY AND MANIFESTLY ERRONEOUS. - Suffice it to state that the finding of
the trial court as to the existence or non-existence of petitioners psychological
incapacity at the time of the marriage is final and binding on us. Petitioner has
not sufficiently shown that the trial courts factual findings and evaluation of the
testimonies of private respondents witnesses vis-a-vis petitioners defenses are
clearly and manifestly erroneous.
6. CONSTITUTIONAL LAW; BILL OF RIGHTS; PROCEDURAL DUE PROCESS; NOT
VIOLATED IF PETITIONER WAS GIVEN OPPORTUNITY TO BE HEARD. - Petitioner
cannot now claim that he was deprived of due process. He may have lost his
right to present evidence but he was not denied his day in court. As the records
show, petitioner, through counsel, actively participated in the proceedings
below. He filed his answer to the petition, cross-examined private respondents
witnesses and even submitted his opposition to private respondents motion for
dissolution of the conjugal partnership of gains.
7. CIVIL LAW; FAMILY CODE; ANNULMENT, DECLARATION OF NULLITY AND LEGAL
SEPARATION; PROSECUTING ATTORNEY OR FISCAL MAY BE ORDERED BY THE
COURT TO INTERVENE ON BEHALF OF THE STATE TO PREVENT COLLUSION
BETWEEN THE PARTIES. - A grant of annulment of marriage or legal separation
by default is fraught with the danger of collusion. Hence, in all cases for
annulment, declaration of nullity of marriage and legal separation, the
prosecuting attorney or fiscal is ordered to appear on behalf of the state for the
purpose of preventing any collusion between the parties and to take care that
their evidence is not fabricated or suppressed. If the defendant spouse fails to
answer the complaint, the court cannot declare him or her in default but
instead, should order the prosecuting attorney to determine if collusion exists
between the parties. The prosecuting attorney or fiscal may oppose the
application for legal separation or annulment through the presentation of his
own evidence, if in his opinion, the proof adduced is dubious and fabricated.
8. ID.; ID.; ID.; NON-INTERFERENCE OF A PROSECUTING ATTORNEY IS NOT FATAL
TO THE VALIDITY OF THE PROCEEDINGS IN THE TRIAL COURT IF PETITIONER
VEHEMENTLY OPPOSED THE ANNULMENT OF THEIR MARRIAGE IN THE SAID
COURT. - The role of the prosecuting attorney or fiscal in annulment of marriage
and legal separation proceedings is to determine whether collusion exists
between the parties and to take care that the evidence is not suppressed or
 fabricated. Petitioners vehement opposition to the annulment proceedings
negates the conclusion that collusion existed between the parties. There is no
allegation by the petitioner that evidence was suppressed or fabricated by any
of the parties. Under these circumstances, we are convinced that the non-
intervention of a prosecuting attorney to assure lack of collusion between the
contending parties is not fatal to the validity of the proceedings in the trial court.
APPEARANCES OF COUNSEL
Seguion Reyna, Montecillo & Ongsiako for petitioner.
Salonga, Hernandez & Allado for private respondent.
DECISION
PUNO, J.:
This petition for review on certiorari seeks to annul and set aside the decision
dated July 29, 1994 of the Court of Appeals in CA-G.R. CV No. 37925 denying
petitioners appeal from an order of the Regional Trial Court, Branch 149, Makati in
Civil Case No. 3769.
This case arose from the following facts:
In 1989, private respondent Maria Victoria Lopez Tuason filed with the Regional
Trial Court, Branch 149, Makati a petition for annulment or declaration of nullity of
her marriage to petitioner Emilio R. Tuason. In her complaint, private respondent
alleged that she and petitioner were married on June 3, 1972 and from this union,
begot two children; that at the time of the marriage, petitioner was already
psychologically incapacitated to comply with his essential marital obligations which
became manifest afterward and resulted in violent fights between husband and wife;
that in one of their fights, petitioner inflicted physical injuries on private respondent
which impelled her to file a criminal case for physical injuries against him; that
petitioner used prohibited drugs, was apprehended by the authorities and sentenced
to a one-year suspended penalty and has not been rehabilitated; that petitioner was
a womanizer, and in 1984, he left the conjugal home and cohabited with three
women in succession, one of whom he presented to the public as his wife; that after
he left the conjugal dwelling, petitioner gave minimal support to the family and even
refused to pay for the tuition fees of their children compelling private respondent to
accept donations and dole-outs from her family and friends; that petitioner likewise
became a spendthrift and abused his administration of the conjugal partnership by
alienating some of their assets and incurring large obligations with banks, credit card
companies and other financial institutions, without private respondents consent;
that attempts at reconciliation were made but they all failed because of petitioners
refusal to reform. In addition to her prayer for annulment of marriage, private
respondent prayed for powers of administration to save the conjugal properties from
further dissipation.[1]
Petitioner answered denying the imputations against him. As affirmative
defense, he claimed that he and private respondent were a normal married couple
during the first ten years of their marriage and actually begot two children during this
period; that it was only in 1982 that they began to have serious personal differences
when his wife did not accord the respect and dignity due him as a husband but
treated him like a persona non grata; that due to the extreme animosities between
them, he temporarily left the conjugal home for a cooling-off period in 1984; that it
is private respondent who had been taking prohibited drugs and had a serious affair
with another man; that petitioners work as owner and operator of a radio and
television station exposed him to malicious gossip linking him to various women in
media and the entertainment world; and that since 1984, he experienced financial
reverses in his business and was compelled, with the knowledge of his wife, to
dispose of some of the conjugal shares in exclusive golf and country clubs. Petitioner
petitioned the court to allow him to return to the conjugal home and continue his
administration of the conjugal partnership.
After the issues were joined, trial commenced on March 30, 1990. Private
respondent presented four witnesses, namely, herself; Dr. Samuel Wiley, a Canon
Law expert and marriage counselor of both private respondent and petitioner; Ms.
Adelita Prieto, a close friend of the spouses, and Any. Jose F. Racela IV, private
respondents counsel. Private respondent likewise submitted documentary evidence
consisting of newspaper articles of her husbands relationship with other women, his
apprehension by the authorities for illegal possession of drugs; and copies of a prior
church annulment decree.[2] The parties marriage was clerically annulled by the
Tribunal Metropolitanum Matrimoniale which was affirmed by the National
Appellate Matrimonial Tribunal in 1986.[3]
During presentation of private respondents evidence, petitioner, on April 18,
1990, filed his Opposition to private respondents petition for appointment as
administratrix of the conjugal partnership of gains.
After private respondent rested her case, the trial court scheduled the reception
of petitioners evidence on May 11, 1990.
On May 8, 1990, two days before the scheduled hearing, a counsel for petitioner
moved for a postponement on the ground that the principal counsel was out of the
country and due to return on the first week of June. [4] The court granted the motion
and reset the hearing to June 8, 1990.[5]
On June 8, 1990, petitioner failed to appear. On oral motion of private
respondent, the court declared petitioner to have waived his right to present
evidence and deemed the case submitted for decision on the basis of the evidence
presented.
 On June 29, 1990, the trial court rendered judgment declaring the nullity of
private respondents marriage to petitioner and awarding custody of the children to
private respondent. The court ruled:
WHEREFORE, in view of the foregoing, the marriage contracted by Ma. Victoria L.
Tuason and Emilio R. Tuason on June 3, 1972 is declared null and void oh initio on
the ground of psychological incapacity on the part of the defendant under Sec. 36 of
the Family Code. Let herein judgment of annulment be recorded in the registry of
Mandaluyong, Metro Manila where the marriage was contracted and in the registry
of Makati, Metro Manila where the marriage is annulled.
The custody of the two (2) legitimate children of the plaintiff and the defendant
is hereby awarded to the plaintiff.
The foregoing judgment is without prejudice to the application of the other
effects of annulment as provided for under Arts. 50 and 51 of the Family Code of the
Philippines.[6]
Counsel for petitioner received a copy of this decision on August 24, 1990. No
appeal was taken from the decision.
On September 24, 1990, private respondent filed a Motion for Dissolution of
Conjugal Partnership of Gains and Adjudication to Plaintiff of the Conjugal
Properties.[7] Petitioner opposed the motion on October 17, 1990[8]
Also on the same day, October 17, 1990, petitioner, through new counsel, filed
with the trial court a petition for relief from judgment of the June 29, 1990 decision.
The trial court denied the petition on August 8, 1991.[9]
Petitioner appealed before the Court of Appeals the order of the trial court
denying his petition for relief from judgment. On July 29, 1994, the Court of Appeals
dismissed the appeal and affirmed the order of the trial court.[10]
Hence this petition.
The threshold issue is whether a petition for relief from judgment is warranted
under the circumstances of the case.
We rule in the negative.
A petition for relief from judgment is governed by Rule 38, Section 2 of the
Revised Rules of Court which provides:
Section 2. Petition to Court of First Instance for relief from judgment or other
proceedings thereof. - When a judgment or order is entered, or any other
proceeding is taken, against a party in a court of first instance through fraud,
accident, mistake, or excusable negligence, he may file a petition in such court and
in the same cause praying that the judgment, order or proceeding be set aside.
Under the rules, a final and executory judgment or order of the Regional Trial
Court may be set aside on the ground of fraud, accident, mistake or excusable
negligence. In addition, the petitioner must assert facts showing that he has a good,
substantial and meritorious defense or cause of action.[11] If the petition is granted,
the court shall proceed to hear and determine the case as if a timely motion for new
trial had been granted therein.[12]
In the case at bar, the decision annulling petitioners marriage to private
respondent had already become final and executory when petitioner failed to appeal
during the reglementary period. Petitioner however claims that the decision of the
trial court was null and void for violation of his right to due process. He contends he
was denied due process when, after failing to appear on two scheduled hearings, the
trial court deemed him to have waived his right to present evidence and rendered
judgment on the basis of the evidence for private respondent. Petitioner justifies his
absence at the hearings on the ground that he was then confined for medical and/or
rehabilitation reasons.[13] In his affidavit of merit before the trial court, he attached a
certification by Lt. Col. Plaridel F. Vidal, Director of the Narcotics Command, Drug
Rehabilitation Center which states that on March 27, 1990 petitioner was admitted
for treatment of drug dependency at the Drug Rehabilitation Center at Camp Bagong
Diwa, Bicutan, Taguig, Metro Manila of the Philippine Constabulary-Integrated
National Police.[14] The records, however, show that the former counsel of petitioner
did not inform the trial court of this confinement. And when the court rendered its
decision, the same counsel was out of the country for which reason the decision
became final and executory as no appeal was taken therefrom.[15]
The failure of petitioners counsel to notify him on time of the adverse judgment
to enable him to appeal therefrom is negligence which is not excusable. Notice sent
to counsel of record is binding upon the client and the neglect or failure of counsel
to inform him of an adverse judgment resulting in the loss of his right to appeal is not
a ground for setting aside a judgment valid and regular on its face.[16]
Similarly inexcusable was the failure of his former counsel to inform the trial
court of petitioners confinement and medical treatment as the reason for his non-
appearance at the scheduled hearings. Petitioner has not given any reason why his
former counsel, intentionally or unintentionally, did not inform the court of this
fact. This led the trial court to order the case deemed submitted for decision on the
basis of the evidence presented by the private respondent alone. To compound the
negligence of petitioners counsel, the order of the trial court was never assailed via
a motion for reconsideration.
Clearly, petitioner cannot now claim that he was deprived of due process. He
may have lost his right to present evidence but he was not denied his day in court. As
the records show, petitioner, through counsel, actively participated in the
proceedings below. He filed his answer to the petition, cross-examined private
respondents witnesses and even submitted his opposition to private respondents
motion for dissolution of the conjugal partnership of gains. [17]
A petition for relief from judgment is an equitable remedy; it is allowed only in
exceptional cases where there is no other available or adequate remedy. When a
party has another remedy available to him, which may be either a motion for new
trial or appeal from an adverse decision of the trial court, and he was not prevented
by fraud, accident, mistake or excusable negligence from filing such motion or taking
such appeal, he cannot avail himself of this petition.[18] Indeed, relief will not be
granted to a party who seeks avoidance from the effects of the judgment when the
loss of the remedy at law was due to his own negligence; otherwise the petition for
relief can be used to revive the right to appeal which had been lost thru inexcusable
negligence.[19]
Petitioner also insists that he has a valid and meritorious defense. He cites the
Family Code which provides that in actions for annulment of marriage or legal
separation, the prosecuting officer should intervene for the state because the law
looks with disfavor upon the haphazard declaration of annulment of marriages by
default. He contends that when he failed to appear at the scheduled hearings, the
trial court should have ordered the prosecuting officer to intervene for the state and
inquire as to the reason for his non-appearance.[20]
Articles 48 and 60 of the Family Code read as follows:
Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the
Court shall order the prosecution attorney or fiscal assigned to it to appear on
behalf of the State to take steps to prevent collusion between the parties and to
take care that evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be based
upon a stipulation of facts or confession of judgment.
xxxxxxxxx
Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a
confession of judgment.
In any case, the Court shall order the prosecuting attorney or fiscal assigned to
it to take steps to prevent collusion between the parties and to take care that the
evidence is not fabricated or suppressed.[21]
A grant of annulment of marriage or legal separation by default is fraught with
the danger of collusion.[22] Hence, in all cases for annulment, declaration of nullity of
marriage and legal separation, the prosecuting attorney or fiscal is ordered to appear
on behalf of the state for the purpose of preventing any collusion between the parties
and to take care that their evidence is not fabricated or suppressed. If the defendant
spouse fails to answer the complaint, the court cannot declare him or her in default
but instead, should order the prosecuting attorney to determine if collusion exists
between the parties.[23] The prosecuting attorney or fiscal may oppose the
application for legal separation or annulment through the presentation of his own
evidence, if in his opinion, the proof adduced is dubious and fabricated. [24] Our
Constitution is committed to the policy of strengthening the family as a basic social
institution.[25] Our family law is based on the policy that marriage is not a mere
contract, but a social institution in which the state is vitally interested. The state can
find no stronger anchor than on good, solid and happy families. The break up of
families weakens our social and moral fabric and, hence, their preservation is not the
concern alone of the family members.
The facts in the case at bar do not call for the strict application of Articles 48 and
60 of the Family Code. For one, petitioner was not declared in default by the trial
court for failure to answer. Petitioner filed his answer to the complaint and contested
the cause of action alleged by private respondent. He actively participated in the
proceedings below by filing several pleadings and cross-examining the witnesses of
private respondent. It is crystal clear that every stage of the litigation was
characterized by a no-holds barred contest and not by collusion.
The role of the prosecuting attorney or fiscal in annulment of marriage and legal
separation proceedings is to determine whether collusion exists between the parties
and to take care that the evidence is not suppressed or fabricated. Petitioners
vehement opposition to the annulment proceedings negates the conclusion that
collusion existed between the parties. There is no allegation by the petitioner that
evidence was suppressed or fabricated by any of the parties. Under these
circumstances, we are convinced that the non-intervention of a prosecuting attorney
to assure lack of collusion between the contending parties is not fatal to the validity
of the proceedings in the trial court.
Petitioner also refutes the testimonies of private respondents witnesses,
particularly Dr. Samuel Wiley and Ms. Adelita Prieto, as biased, incredible and
hearsay. Petitioner alleges that if he were able to present his evidence, he could have
testified that he was not psychologically incapacitated at the time of the marriage as
indicated by the fact that during their first ten years, he and private respondent lived
together with their children as one normal and happy family, that he continued
supporting his family even after he left the conjugal dwelling and that his work as
owner and operator of a radio and television corporation places him in the public eye
and makes him a good subject for malicious gossip linking him with various
women. These facts, according to petitioner, should disprove the ground for
annulment of his marriage to petitioner.
 Suffice it to state that the finding of the trial court as to the existence or non-
existence of petitioners psychological incapacity at the time of the marriage is final
and binding on us.[26]Petitioner has not sufficiently shown that the trial courts factual
findings and evaluation of the testimonies of private respondents witnesses vis-a-
vis petitioners defenses are clearly and manifestly erroneous.[27]
IN VIEW WHEREOF, the petition is denied and the decision dated July 29, 1994
of the Court of Appeals in CA-G.R. CV No. 37925 is affirmed.
SO ORDERED.
 G.R. No. 154994. June 28, 2005]
JOYCELYN PABLO-GUALBERTO, petitioner, vs. CRISANTO RAFAELITO GUALBERTO
V, respondent.
[G.R. No. 156254. June 28, 2005]
CRISANTO RAFAELITO G. GUALBERTO V, petitioner, vs. COURT OF APPEALS; Hon.
HELEN B. RICAFORT, Presiding Judge, Regional Trial Court Paraaque
City, Branch 260; and JOYCELYN D. PABLO-GUALBERTO, respondents.
DECISION
PANGANIBAN, J.:
When love is lost between spouses and the marriage inevitably results in
separation, the bitterest tussle is often over the custody of their children. The Court
is now tasked to settle the opposing claims of the parents for custody pendente lite of
their child who is less than seven years of age. There being no sufficient proof of any
compelling reason to separate the minor from his mother, custody should remain
with her.
The Case
Before us are two consolidated petitions. The first is a Petition for
Review[1] filed by Joycelyn Pablo-Gualberto under Rule 45 of the Rules of Court,
assailing the August 30, 2002 Decision[2] of the Court of Appeals (CA) in CA-GR SP No.
70878. The assailed Decision disposed as follows:
WHEREFORE, premises considered, the Petition for Certiorari is
hereby GRANTED. The assailed Order of May 17, 2002 is hereby SET
ASIDE and ANNULLED. The custody of the child is hereby ordered returned to
[Crisanto Rafaelito G. Gualberto V].
The [respondent] court/Judge is hereby directed to consider, hear and resolve
[petitioners] motion to lift the award of custody pendente lite of the child to
[respondent].[3]
The second is a Petition for Certiorari[4] filed by Crisanto Rafaelito Gualberto V
under Rule 65 of the Rules of Court, charging the appellate court with grave abuse of
discretion for denying his Motion for Partial Reconsideration of the August 30, 2002
Decision. The denial was contained in the CAs November 27, 2002 Resolution, which
we quote:
We could not find any cogent reason why the [last part of the dispositive portion of
our Decision of August 30, 2002] should be deleted, hence, subject motion is hereby
DENIED.[5]
The Facts
The CA narrated the antecedents as follows:
x x x [O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto V] filed before [the
Regional Trial Court of Paraaque City] a petition for declaration of nullity of his
marriage to x x x Joycelyn D. Pablo Gualberto, with an ancillary prayer for
custody pendente lite of their almost 4-year-old son, minor Rafaello (the child, for
brevity), whom [Joycelyn] allegedly took away with her from the conjugal home and
his school (Infant Toddlers Discovery Center in Paraaque City) when [she] decided
to abandon [Crisanto] sometime in early February 2002[.] x x x [O]n April 2, 2002,
[RTC Judge Helen B. Ricafort] heard the ancillary prayer of [Crisanto] for
custody pendente lite. x x x [B]ecause [Joycelyn] allegedly failed to appear despite
notice, [Crisanto], a certain Col. Renato Santos, and Ms. Cherry Batistel, testified
before the x x x Judge; x x x documentary evidence [was] also presented[.] x x x [O]n
April 3, 2002, x x x [the] Judge awarded custody pendente lite of the child to
[Crisanto.] [T]he Order partly read x x x:
x x x Crisanto Rafaelito Gualberto V testified. He stated that [Joycelyn] took their
minor child with her to Caminawit, San Jose, Occidental Mindoro. At that time, the
minor was enrolled at B.F. Homes, Paraaque City. Despite effort[s] exerted by him,
he has failed to see his child. [Joycelyn] and the child are at present staying with the
formers step-father at the latters [residence] at Caminawit, San Jose, Occidental
Mindoro.
Renato Santos, President of United Security Logistic testified that he was
commissioned by [Crisanto] to conduct surveillance on [Joycelyn] and came up with
the conclusion that [she] is having lesbian relations with one Noreen Gay Cuidadano
in Cebu City.
The findings of Renato Santos [were] corroborated by Cherry Batistel, a house
helper of the spouses who stated that [the mother] does not care for the child as
she very often goes out of the house and on one occasion, she saw [Joycelyn]
slapping the child.
Art. 211 of the Family Code provides as follows:
The father and the mother shall jointly exercise parental authority over the persons
of their children. In the case of disagreement, the fathers decision shall prevail,
unless there is a judicial order to the contrary.
The authority of the father and mother over their children is exercised jointly. This
recognition, however, does not place her in exactly the same place as the father;
her authority is subordinated to that of the father.
In all controversies regarding the custody of minors, the sole and foremost
consideration is the physical, educational, social and moral welfare of the child,
taking into account the respective resources and social and moral situations of the
contending parties.
The Court believes that [Joycelyn] had no reason to take the child with her.
Moreover, per Sheriff returns, she is not with him at Caminawit, San Jose,
Occidental Mindoro.
WHEREFORE, pendente lite, the Court hereby awards custody of the minor, Crisanto
Rafaello P. Gualberto X to his father, Crisanto Rafaelito G. Gualberto V.
x x x [O]n April 16, 2002, the hearing of [Joycelyns] motion to lift the award of
custody pendente lite of the child to [Crisanto] was set but the former did not
allegedly present any evidence to support her motion. However, on May 17, 2002,
[the] Judge allegedly issued the assailed Order reversing her Order of April 3, 2002
and this time awarding custody of the child to [Joycelyn]. [T]he entire text of the
Order [is] herein reproduced, to wit:
Submitted is [Crisantos] Motion to Resolve Prayer for Custody Pendente Lite and
[Joycelyns] Motion to Dismiss and the respective Oppositions thereto.
[Joycelyn], in her Motion to Dismiss, makes issue of the fact that the person
referred to in the caption of the Petition is one JOCELYN Pablo Gualberto and not
Joycelyn Pablo Gualberto. [Joycelyn] knows she is the person referred to in the
Complaint. As a matter of fact, the body of the Complaint states her name
correct[ly]. The law is intended to facilitate and promote the administration of
justice, not to hinder or delay it. Litigation should be practicable and convenient.
The error in the name of Joycelyn does not involve public policy and has not
prejudiced [her].
This case was filed on March 12, 2002. Several attempts were made to serve
summons on [Joycelyn] as shown by the Sheriffs returns. It appears that on the
4th attempt on March 21, 2002, both Ma. Daisy and x x x Ronnie Nolasco, [Joycelyns
mother and stepfather, respectively,] read the contents of the documents
presented after which they returned the same.
The Court believes that on that day, summons was duly served and this Court
acquired jurisdiction over [Joycelyn].
The filing of [Joycelyns annulment] case on March 26, 2002 was an after thought,
perforce the Motion to [D]ismiss should be denied.
The child subject of this Petition, Crisanto Rafaello P. Gualberto is barely four years
old. Under Article 213 of the Family Code, he shall not be separated from his
mother unless the Court finds compelling reasons to order otherwise. The Court
finds the reason stated by [Crisanto] not [to] be compelling reasons. The father
should however be entitled to spend time with the minor. These do not appear
compelling reasons to deprive him of the company of his child.
When [Joycelyn] appeared before this Court, she stated that she has no objection to
the father visiting the child even everyday provided it is in Mindoro.
The Court hereby grants the mother, [Joycelyn], the custody of Crisanto Rafaello P.
Gualberto, with [the] right of [Crisanto] to have the child with him every other
weekend.
WHEREFORE:
1. The [M]otion to Dismiss is hereby DENIED;
2. Custody pendente lite is hereby given to the mother Joycelyn
Pablo Gualberto with the right of the father, x x x
[Crisanto], to have him every other week-end.
 3. Parties are admonished not to use any other agencies of the On the other hand, Crisanto raises the following issues:
government like the CIDG to interfere in this case
and to harass the parties.[6] A. Did Respondent Court commit grave abuse of discretion amounting to or in
excess of jurisdiction when, in its August 30, 2002 Decision, it ordered respondent
In a Petition for Certiorari[7] before the CA, Crisanto charged the Regional Trial
court/Judge to consider, hear and resolve the motion to lift award of custody
Court (Branch 260) of Paraaque City with grave abuse of discretion for issuing its
pendente lite of the child to petitioner and x x x denied the motion for
aforequoted May 17, 2002 Order. He alleged that this Order superseded, without any
reconsideration thereof in its November 27, 2002 Resolution, considering that: (1)
factual or legal basis, the still valid and subsisting April 3, 2002 Order awarding him
there is no such motion ever, then or now pending, with the court a quo; (2) the
custody pendente lite of his minor son; and that it violated Section 14 of Article VII of
November 27, 2002 Resolution is unconstitutional; and (3) the April 3, 2002 Order
the 1987 Constitution.
of respondent Judge, the validity of which has been upheld in the August 30, 2002
Decision of the respondent Court, has become final and executory; and

Ruling of the Court of Appeals B. Ought not the ancillary remedies [o]f habeas corpus, because the whereabouts,
physical and mental condition of the illegally detained Minor Rafaello is now
unknown to petitioner and preliminary mandatory injunction with urgent prayer for
Partly in Crisantos favor, the CA ruled that grave abuse of discretion had been
immediate issuance of preliminary [injunction], petitioner having a clear and settled
committed by the trial court in reversing the latter courts previous Order dated April
right to custody of Minor Rafaello which has been violated and still is being
3, 2002, by issuing the assailed May 17, 2002 Order. The appellate court explained
continuously violated by [petitioner Joycelyn], be granted by this Honorable
that the only incident to resolve was Joycelyns Motion to Dismiss, not the issuance
Court?[10]
of the earlier Order. According to the CA, the prior Order awarding provisional
custody to the father should prevail, not only because it was issued after a hearing,
but also because the trial court did not resolve the correct incident in the later Order. Being interrelated, the procedural challenges and the substantive issues in the
two Petitions will be addressed jointly.
Nonetheless, the CA stressed that the trial court judge was not precluded from
considering and resolving Joycelyns Motion to lift the award of custody pendente
lite to Crisanto, as that Motion had yet to be properly considered and ruled upon.
The Courts Ruling
However, it directed that the child be turned over to him until the issue was resolved.
Hence, these Petitions.[8]
There is merit in the Petition in GR No. 154994, but not in GR No. 156254.

Issues
Preliminary Issue:
The Alleged Prematurity
In GR No. 154994, Petitioner Joycelyn submits these issues for our of the Petition in GR No. 154994
consideration:

Before going into the merits of the present controversy, the Court shall first
1. Whether or not the Respondent Court of Appeals, when it awarded the custody
dispose of a threshold issue. In GR No. 154994, therein Respondent Crisanto
of the child to the father, violated Art. 213 of the Family Code, which mandates that
contends that the Petition for Review was filed beyond the deadline (October 24,
no child under seven years of age shall be separated from the mother, unless the
2002) allowed by the Rules of Court and by this Court. He claims that Registry Bill No.
court finds compelling reasons to order otherwise.
88 shows that the Petition was sent by speed mail, only on November 4, 2002.
Furthermore, he assails the Petition for its prematurity, since his Motion for Partial
2. Is it Article 213 or Article 211 which applies in this case involving four-year old Reconsideration of the August 30, 2002 CA Decision was still pending before the
Rafaello?[9]
appellate court. Thus, he argues that the Supreme Court has no jurisdiction over
Joycelyns Petition.
Timeliness of the Petition
The manner of filing and service Joycelyns Petition by mail is governed by
Sections 3 and 7 of Rule 13 of the Rules of Court, which we quote:
SEC. 3. Manner of filing. The filing of pleadings, appearances, motions, notices,
orders, judgments and all other papers shall be made by presenting the original
copies thereof, plainly indicated as such personally to the clerk of court or by
sending them by registered mail. xxx In the second case, the date of mailing of
motions, pleadings and other papers or payments or deposits, as shown by the post
office stamp on the envelope or the registry receipt, shall be considered as the date
of their filing, payment, or deposit in court. The envelope shall be attached to the
records of the case.
xxxxxxxxx
SEC. 7. Service by mail. Service by registered mail shall be made by depositing the
copy in the office, in a sealed envelope, plainly addressed to the party or his counsel
at his office, if known, otherwise at his residence, if known, with postage fully pre-
paid, and with instructions to the postmaster to return the mail to the sender after
ten (10) days if undelivered. If no registry service is available in the locality of either
the sender of the addressee, service may be done by ordinary mail. (Italics supplied)
The records disclose that Joycelyn received the CAs August 30, 2002 Decision
on September 9, 2002. On September 17, she filed before this Court a Motion for a
30-day extension of time to file a petition for review on certiorari. This Motion was
granted,[11] and the deadline was thus extended until October 24, 2002.
A further perusal of the records reveals that copies of the Petition were sent to
this Court and to the parties by registered mail[12] at the Bian, Laguna Post Office on
October 24, 2002. This is the date clearly stamped on the face of the envelope[13] and
attested to in the Affidavit of Service[14] accompanying the Petition. Petitioner
Joycelyn explained that the filing and the service had been made by registered mail
due to the volume of delivery assignments and the lack of a regular messenger. [15]
The Petition is, therefore, considered to have been filed on October 24, 2002,
its mailing date as shown by the post office stamp on the envelope. The last sentence
of Section 3 of Rule 13 of the Rules provides that the date of filing may be
shown either by the post office stamp on the envelope or by the registry receipt.
Proof of its filing, on the other hand, is shown by the existence of the petition in the
record, pursuant to Section 12 of Rule 13.[16]
The postmaster satisfactorily clarifies that Registry Bill No. 88, which shows the
date November 2, 2002, merely discloses when the mail matters received by the Bian
Post Office on October 24, 2002, were dispatched or sent to the Central Mail
Exchange for distribution to their final destinations.[17] The Registry Bill does not
reflect the actual mailing date. Instead, it is the postal Registration Book [18] that
shows the list of mail matters that have been registered for mailing on a particular
day, along with the names of the senders and the addressees. That book shows that
Registry Receipt Nos. 2832-A and 2832-B, pertaining to the mailed matters for the
Supreme Court, were issued on October 24, 2002.
Prematurity of the Petition
As to the alleged prematurity of the Petition of Joycelyn, Crisanto points out
that his Urgent Motion for Partial Reconsideration[19] was still awaiting resolution by
the CA when she filed her Petition before this Court on October 24, 2002. The CA
ruled on the Motion only on November 27, 2002.
The records show, however, that the Motion of Crisanto was mailed only on
September 12, 2002. Thus, on September 17, 2002, when Joycelyn filed her Motion
for Extension of Time to file her Petition for Review, she might have still been
unaware that he had moved for a partial reconsideration of the August 20, 2002 CA
Decision. Nevertheless, upon being notified of the filing of his Motion, she should
have manifested that fact to this Court.
With the CAs final denial of Crisantos Motion for Reconsideration, Joycelyns
lapse may be excused in the interest of resolving the substantive issues raised by the
parties.
First Issue:
Grave Abuse of Discretion
In GR No. 156254, Crisanto submits that the CA gravely abused its discretion
when it ordered the trial court judge to consider, hear and resolve the motion to lift
the award of custody pendente lite without any proper motion by Joycelyn and after
the April 3, 2002 Order of the trial court had become final and executory. The CA is
also charged with grave abuse of discretion for denying his Motion for Partial
Reconsideration without stating the reasons for the denial, allegedly in contravention
of Section 1 of Rule 36 of the Rules of Court.
The Order to Hear the Motion orders on the merits, not to those resolving incidental matters.[27] The provision
to Lift the Award of Custody reads:
Pendente Lite Proper
SECTION 1. Rendition of judgments and final orders. A judgment or final order
determining the merits of the case shall be in writing personally and directly
To begin with, grave abuse of discretion is committed when an act is 1) done prepared by the judge, stating clearly and distinctly the facts and the law on which
contrary to the Constitution, the law or jurisprudence;[20] or 2) executed whimsically it is based, signed by him, and filed with the clerk of court. (Italics supplied)
or arbitrarily in a manner so patent and so gross as to amount to an evasion of a
positive duty, or to a virtual refusal to perform the duty enjoined.[21] What constitutes
Here, the declaration of the nullity of marriage is the subject of the main case,
grave abuse of discretion is such capricious and arbitrary exercise of judgment as that
in which the issue of custody pendente lite is an incident. That custody and support
which is equivalent, in the eyes of the law, to lack of jurisdiction. [22]
of common children may be ruled upon by the court while the action is pending is
On the basis of these criteria, we hold that the CA did not commit grave abuse provided in Article 49 of the Family Code, which we quote :
of discretion.
Art. 49. During the pendency of the action[28] and in the absence of adequate
First, there can be no question that a court of competent jurisdiction is vested
provisions in a written agreement between the spouses, the Court shall provide for
with the authority to resolve even unassigned issues. It can do so when such a step is
the support of the spouses and the custody and support of their common children.
indispensable or necessary to a just resolution of issues raised in a particular pleading
x x x.
or when the unassigned issues are inextricably linked or germane to those that have
been pleaded.[23] This truism applies with more force when the relief granted has
been specifically prayed for, as in this case. Clearly then, the requirement cited by Crisanto is inapplicable. In any event, in
its questioned Resolution, the CA clearly stated that it could not find any cogent
Explicit in the Motion to Dismiss[24] filed by Joycelyn before the RTC is her reason to reconsider and set aside the assailed portion of its August 30, 2002
ancillary prayer for the court to lift and set aside its April 3, 2002 Order awarding to Decision.
Crisanto custody pendente lite of their minor son. Indeed, the necessary
consequence of granting her Motion to Dismiss would have been the setting aside of
the Order awarding Crisanto provisional custody of the child. Besides, even if the
The April 3, 2002 Order Not
Motion to Dismiss was denied -- as indeed it was -- the trial court, in its discretion Final and Executory
and if warranted, could still have granted the ancillary prayer as an alternative relief.
Parenthetically, Joycelyns Motion need not have been verified because of the
Third, the award of temporary custody, as the term implies, is provisional and
provisional nature of the April 3, 2002 Order. Under Rule 38 [25] of the Rules of Court,
subject to change as circumstances may warrant. In this connection, there is no need
verification is required only when relief is sought from a final and executory Order.
for a lengthy discussion of the alleged finality of the April 3, 2002 RTC Order granting
Accordingly, the court may set aside its own orders even without a proper motion,
Crisanto temporary custody of his son. For that matter, even the award of child
whenever such action is warranted by the Rules and to prevent a miscarriage of
custody after a judgment on a marriage annulment is not permanent; it may be
justice.[26]
reexamined and adjusted if and when the parent who was given custody becomes
unfit.[29]

Denial of the Motion for

Reconsideration Proper
Second Issue:
Custody of a Minor Child
Second, the requirement in Section 1 of Rule 36 (for judges to state clearly and
distinctly the reasons for their dispositions) refers only to decisions and final
When love is lost between spouses and the marriage inevitably results in
separation, the bitterest tussle is often over the custody of their children. The Court
is now tasked to settle the opposing claims of the parents for custody pendente lite of
their child who is less than seven years old.[30] On the one hand, the mother insists
that, based on Article 213 of the Family Code, her minor child cannot be separated
from her. On the other hand, the father argues that she is unfit to take care of their
son; hence, for compelling reasons, he must be awarded custody of the child.
[31]
Article 213 of the Family Code 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.
No child under seven years 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 are separated, legally or otherwise,
the foregoing provision governs the custody of their child. [32] Article 213 takes its
bearing from Article 363 of the Civil Code, which reads:
Art. 363. In all questions on the care, custody, education and property of children,
the latters 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.(Italics supplied)
The general rule that children under seven years of age shall not be separated
from their mother finds its raison detre in the basic need of minor children for their
mothers loving care.[33] In explaining the rationale for Article 363 of the Civil Code,
the Code Commission stressed thus:
The general rule is recommended in order to avoid a tragedy where a mother has
seen her baby torn away from her. No man can sound the deep sorrows of a
mother who is deprived of her child of tender age. The exception allowed by the
rule has to be for compelling reasons for the good of the child: those cases must
indeed be rare, if the mothers heart is not to be unduly hurt. If she has erred, as in
cases of adultery, the penalty of imprisonment and the (relative) divorce decree will
ordinarily be sufficient punishment for her. Moreover, her moral dereliction will not
have any effect upon the baby who is as yet unable to understand the situation.
(Report of the Code Commission, p. 12)
A similar provision is embodied in Article 8 of the Child and Youth Welfare Code
(Presidential Decree No. 603).[34] Article 17 of the same Code is even more explicit in
providing for the childs custody under various circumstances, specifically in case the
parents are separated. It clearly mandates that no child under five years of age shall
be separated from his mother, unless the court finds compelling reasons to do so.
The provision is reproduced in its entirety as follows:
Art. 17. Joint Parental Authority. The father and the mother shall exercise jointly
just and reasonable parental authority and responsibility over their legitimate or
adopted children. In case of disagreement, the fathers decision shall prevail unless
there is a judicial order to the contrary.
In case of the absence or death of either parent, the present or surviving parent
shall continue to exercise parental authority over such children, unless in case of
the surviving parents remarriage, the court for justifiable reasons, appoints another
person as guardian.
In case of separation of his parents, no child under five years of age shall be
separated from his mother, unless the court finds compelling reasons to do so.
(Italics supplied)
The above mandates reverberate in Articles 211, 212 and 213 of the Family
Code. It is unmistakable from the language of these provisions that Article 211[35] was
derived from the first sentence of the aforequoted Article 17; Article 212,[36] from the
second sentence; and Article 213,[37] save for a few additions, from the third
sentence. It should be noted that the Family Code has reverted to the Civil Code
provision mandating that a child below seven years should not be separated from the
mother.[38]
Mandatory Character
of Article 213 of the Family Code
In Lacson v. San Jose-Lacson,[39] the Court held that the use of shall in Article 363
of the Civil Code and the observations made by the Code Commission underscore the
mandatory character of the word.[40] Holding in that case that it was a mistake to
deprive the mother of custody of her two children, both then below the age of seven,
the Court stressed:
[Article 363] prohibits in no uncertain terms the separation of a mother and her
child below seven years, unless such a separation is grounded upon compelling
reasons as determined by a court.[41]
In like manner, the word shall in Article 213 of the Family Code and Section
6[42] of Rule 99 of the Rules of Court has been held to connote a mandatory
character.[43] Article 213 and Rule 99 similarly contemplate a situation in which the
parents of the minor are married to each other, but are separated by virtue of either
a decree of legal separation or a de facto separation. [44] In the present case, the
parents are living separately as a matter of fact.
The Best Interest of the Child
a Primary Consideration
The Convention on the Rights of the Child provides that [i]n all actions
concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.[45]
The principle of best interest of the child pervades Philippine cases involving
adoption, guardianship, support, personal status, minors in conflict with the law, and
child custody. In these cases, it has long been recognized that in choosing the parent
to whom custody is given, the welfare of the minors should always be the paramount
consideration.[46] Courts are mandated to take into account all relevant
circumstances that would have a bearing on the childrens well-being and
development. Aside from the material resources and the moral and social situations
of each parent, other factors may also be considered to ascertain which one has the
capability to attend to the physical, educational, social and moral welfare of the
children.[47]Among these factors are the previous care and devotion shown by each
of the parents; their religious background, moral uprightness, home environment
and time availability; as well as the childrens emotional and educational needs
Tender-Age
Presumption
As pointed out earlier, there is express statutory recognition that, as a general
rule, a mother is to be preferred in awarding custody of children under the age of
seven. The caveat in Article 213 of the Family Code cannot be ignored, except when
the court finds cause to order otherwise.[48]
The so-called tender-age presumption under Article 213 of the Family Code may
be overcome only by compelling evidence of the mothers unfitness. The mother has
been declared unsuitable to have custody of her children in one or more of the
following instances: neglect, abandonment, unemployment, immorality, habitual
drunkenness, drug addiction, maltreatment of the child, insanity or affliction with a
communicable disease.[49]
Here, Crisanto cites immorality due to alleged lesbian relations as the
compelling reason to deprive Joycelyn of custody. It has indeed been held that under
certain circumstances, the mothers immoral conduct may constitute a compelling
reason to deprive her of custody.[50]
But sexual preference or moral laxity alone does not prove parental neglect or
incompetence. Not even the fact that a mother is a prostitute or has been unfaithful
to her husband would render her unfit to have custody of her minor child. [51] To
deprive the wife of custody, the husband must clearly establish that her moral lapses
have had an adverse effect on the welfare of the child or have distracted the
offending spouse from exercising proper parental care.[52]
To this effect did the Court rule in Unson III v. Navarro,[53] wherein the mother
was openly living with her brother-in-law, the childs uncle. Under that circumstance,
the Court deemed it in the nine-year-old childs best interest to free her from the
obviously unwholesome, not to say immoral influence, that the situation in which the
mother ha[d] placed herself might create in [the childs] moral and social outlook. [54]
In Espiritu v. CA,[55] the Court took into account psychological and case study
reports on the child, whose feelings of insecurity and anxiety had been traced to
strong conflicts with the mother. To the psychologist the child revealed, among other
things, that the latter was disturbed upon seeing her mother hugging and kissing a
bad man who lived in their house and worked for her father. The Court held that the
illicit or immoral activities of the mother had already caused the child emotional
disturbances, personality conflicts, and exposure to conflicting moral values x x x.
Based on the above jurisprudence, it is therefore not enough for Crisanto to
show merely that Joycelyn was a lesbian. He must also demonstrate that she carried
on her purported relationship with a person of the same sex in the presence of their
son or under circumstances not conducive to the childs proper moral development.
Such a fact has not been shown here. There is no evidence that the son was exposed
to the mothers alleged sexual proclivities or that his proper moral and psychological
development suffered as a result.
Moreover, it is worthy to note that the trial court judge, Helen Bautista-Ricafort,
ruled in her May 17, 2002 Order that she had found the reason stated by [Crisanto]
not to be compelling[56] as to suffice as a ground for separating the child from his
mother. The judge made this conclusion after personally observing the two of them,
both in the courtroom and in her chambers on April 16, 2002, and after a chance to
talk to the boy and to observe him firsthand. This assessment, based on her unique
opportunity to witness the childs behavior in the presence of each parent, should
carry more weight than a mere reliance on the records. All told, no compelling reason
has been adduced to wrench the child from the mothers custody.
No Grant of Habeas Corpus
and Preliminary Injunction

As we have ruled that Joycelyn has the right to keep her minor son in her
custody, the writ of habeas corpus and the preliminary mandatory injunction prayed
for by Crisanto have no leg to stand on. A writ of habeas corpus may be issued only
when the rightful custody of any person is withheld from the person entitled
thereto,[57] a situation that does not apply here.
On the other hand, the ancillary remedy of preliminary mandatory injunction
cannot be granted, because Crisantos right to custody has not been proven to be
clear and unmistakable.[58] Unlike an ordinary preliminary injunction, the writ of
preliminary mandatory injunction is more cautiously regarded, since the latter
requires the performance of a particular act that tends to go beyond the maintenance
of the status quo.[59] Besides, such an injunction would serve no purpose, now that
the case has been decided on its merits.[60]
WHEREFORE, the Petition in GR No. 154994 is GRANTED. The assailed Decision of
the Court of Appeals is hereby REVERSED and the May 17, 2002 Regional Trial Court
Order REINSTATED. The Petition in GR No. 156254 is DISMISSED. Costs against
Petitioner Crisanto Rafaelito Gualberto V.
SO ORDERED.
EDWARD V. LACSON, G.R. No. 150644 Daban Lacson. Maowee was born on December 4, 1974, while Maonaa, a little less
Petitioner,
than a year later. Not long after the birth of Maonaa, petitioner left the conjugal
Present:
PUNO, J., Chairperson, home in Molo, Iloilo City, virtually forcing mother and children to seek, apparently
- versus - SANDOVAL-GUTIERREZ,
CORONA, for financial reason, shelter somewhere else. For a month, they stayed with Leas
AZCUNA, and
GARCIA, JJ. mother-in-law, Alicia Lacson, then with her (Leas) mother and then with her brother
MAOWEE DABAN LACSON Noel Daban. After some time, they rented an apartment only to return later to the
and MAONAA DABAN Promulgated:
LACSON, represented by their house of Leas mother. As the trial court aptly observed, the sisters and their mother,
mother and guardian ad-litem,
LEA DABAN LACSON, August 28, 2006 from 1976 to 1994, or for a period of eighteen (18) years, shuttled from one dwelling
Respondents.
place to another not their own.
x-----------------------------------------------------------------------------------------x

It appears that from the start of their estrangement, Lea did not badger her
DECISION
husband Edward for support, relying initially on his commitment memorialized in a

GARCIA, J.: note dated December 10, 1975 to give support to his daughters. As things turned out,

Petitioner Edward V. Lacson, father of the respondent sisters Maowee Daban Lacson
and Maonaa Daban Lacson and husband of their mother and guardian ad-
litem, Lea Daban Lacson, has come to this Court via this petition for review under
Rule 45 of the Rules of Court to seek the reversal and setting aside of the
Decision[1] dated July 13, 2001 of the Court of Appeals (CA) in CA-G.R. CV No.
60203, as reiterated in its Resolution[2] of October 18, 2001 denying his motion for
however, Edward reneged on his promise of support, despite Leas efforts towards
having him fulfill the same. Lea would admit, though, that Edward occasionally gave
their children meager amounts for school expenses. Through the years and up to the
middle part of 1992, Edwards mother, Alicia Lacson, also gave small amounts to help
in the schooling of Maowee and Maonaa, both of whom eventually took up nursing
at St. Pauls College in Iloilo City. In the early part of 1995 when Lea, in behalf of her

reconsideration. two daughters, filed a complaint against Edward for support before the Regional Trial

Court of Iloilo City, Branch 33, Maowee was about to graduate.

From the petition and its annexes, the respondents reply thereto, and
other pleadings, the Court gathers the following facts: In that complaint dated January 30, 1995, as amended,[3] docketed as Civil Case No.
22185, Maowee and Maonaa, thru their mother, averred that their father Edward,
The sisters Maowee Daban Lacson and Maonaa Daban Lacson are legitimate despite being gainfully employed and owning several pieces of valuable lands, has

daughters of petitioner Edward V. Lacson and his wife, Lea not provided them support since 1976. They also alleged that, owing to years of
Edwards failure and neglect, their mother had, from time to time, borrowed money
2) Ordering defendant to pay TWENTY THOUSAND
from her brother Noel Daban. As she would later testify, Lea had received from Noel, (P20,000.00) PESOS as attorneys fees; and
by way of a loan, as much as P400,000.00 to P600,000.00.
3) Pay costs.

In his Answer, Edward alleged giving to Maowee and Maonaa sufficient sum to meet SO ORDERED.

their needs. He explained, however, that his lack of regular income and the
unproductivity of the land he inherited, not his neglect, accounted for his failure at
times to give regular support. He also blamed financial constraint for his inability to
provide the P12,000.00monthly allowance prayed for in the complaint.
As applied for and after due hearing, the trial court granted the sisters
Maowee and Maonaa support pendente lite at P12,000.00 per month, subject to the
schedule of payment and other conditions set forth in the courts corresponding order
of May 13, 1996.[4]
Therefrom, Edward appealed to the CA whereat his recourse was docketed as CA-
G.R. CV. No. 60203.
Eventually, the CA, in the herein assailed Decision dated July 13, 2001,[6] dismissed
Edwards appeal, disposing as follows;
WHEREFORE, premises considered, the present appeal is hereby
DISMISSED and the appealed Decision in Civil Case No. 22185 is hereby
AFFIRMED.

Double costs against the defendant appellant [Edward Lacson].

Following trial, the RTC rendered on June 26, 1997 judgment finding for the plaintiff
SO ORDERED. (Words in bracket added.)
sisters, as represented by their mother. In that judgment, the trial court, following an
elaborate formula set forth therein, ordered their defendant father Edward to pay
them a specific sum which represented 216 months, or 18 years, of support in In time, Edward moved for reconsideration, but his motion was denied by the

arrears. The falloof the trial courts decision[5] reads: appellate court in its equally assailed Resolution of October 18, 2001.[7]

Hence, Edwards present recourse on his submission that the CA erred -

WHEREFORE, judgment is hereby rendered:

1) Ordering defendant to compensate plaintiffs I. XXX WHEN IT AFFIRMED THE GRANT OF SUPPORT IN ARREARS
support in arrears in the amount of TWO FROM 1976 TO 1994.
MILLION FOUR HUNDRED NINETY-SIX
THOUSAND (P2, 496,000.00) PESOS from which II. XXX IN AFFIRMING THE ALLEGED ADVANCES OF SUPPORT BY
amount shall be deducted ONE HUNDRED RESPONDENTS UNCLE NOEL DABAN.
TWENTY-FOUR (P124,000.00) PESOS that which
they received from defendant for two years and III. XXX IN AFFIRMING THE AWARD OF SUPPORT EVEN IF PETITIONER
that which they received by way of support IS NOT FINANCIALLY CAPABLE OF PROVIDING THE SAME TO
pendent lite; RESPONDENTS.
 IV. XXX WHEN IT ORDERED PETITIONER TO PROVIDE SUPPORT TO
XXX RESPONDENTS EVEN IF PETITIONERS OBLIGATION TO PROVIDE
SUPPORT HAD ALREADY BEEN COMPLETELY SATISFIED BY THE
PROCEEDS OF THE SALE OF HIS EXCLUSIVE PROPERTY WHICH WERE
ALL APPROPRIATED BY THE RESPONDENTS.
The petition lacks merit.
Petitioner admits being obliged, as father, to provide support to both respondents,
Maowee and Maonaa. It is his threshold submission, however, that he should not be
made to pay support in arrears, i.e., from 1976 to 1994, no previous extrajudicial, let
alone judicial, demand having been made by the respondents. He invokes the
following provision of the Family Code to complete his point:
Article 203 The obligation to give support shall be demandable
from the time the person who has a right to receive the same needs
it for maintenance, but it shall not be paid except from the date of
judicial or extrajudicial demand.
To petitioner, his obligation to pay under the aforequoted provision starts from the
filing of Civil Case No. 22185 in 1995, since only from that moment can it be said that
an effective demand for support was made upon him.
Petitioners above posture has little to commend itself. For one, it conveniently
glossed over the fact that he veritably abandoned the respondent sisters even before
the elder of the two could celebrate her second birthday. To be sure, petitioner could
not plausibly expect any of the sisters during their tender years to go through the
motion of demanding support from him, what with the fact that even their mother
(his wife) found it difficult during the period material to get in touch with him. For
another, the requisite demand for support appears to have been made sometime in
1975. It may be that Lea made no extrajudicial demand in the sense of a formal
written demand in terms and in the imperious tenor commonly used by legal
advocates in a demand letter. Nonetheless, what would pass as a demand was,
however, definitely made. Asking one to comply with his obligation to support owing
to the urgency of the situation is no less a demand because it came by way of a
request or a plea. As it were, the trial court found that a demand to sustain an award
of support in arrears had been made in this case and said so in its decision, thus:
From 1976, [respondents] mother now and then went to their
[paternal] grandmothers house by their father and asked for
support; this notwithstanding their fathers commitment for this
purpose which the latter embodied in a note dated December 10,
1975. For twenty-one years that they needed support, [petitioner]
complied with his obligation for only two (2) years.
xxx xxx xxx
Last December 10, 1975, [petitioner] committed self for the
support of his children, the [respondents] herein but failing,
plaintiffs mother asked extrajudicially for her childrens support
since 1976, when she went to her mothers house. . [8] (Words in
bracket and underscoring added.)
The appellate court made a parallel finding on the demand angle, formulating the
same in the following wise:
We could not confer judicial approval upon [petitioners] posture
of trying to evade his responsibility to give support to his daughters
simply because their mother did not make a formal demand
therefor from him. [Petitioners] insistence on requiring a formal
demand from his wife is truly pointless, in the face of his
acknowledgment of and commitment to comply with such
obligation through a note in his own handwriting. Said note [stating
that he will sustain his two daughters Maowee and Maonaa]
also stated as requested by their mother thus practically
confirming the fact of such demand having been made by
[respondents] mother. The trial court thus correctly ruled that
[petitioners] obligation to pay support in arrears should commence
from 1976.[9](Words in bracket added).
The Court finds no adequate reason to disturb the factual determination of the CA consideration of kinship, had reasons to help, indeed lent his sister Lea money to
confirmatory of that of the trial court respecting the demand Lea made on the support her children.
petitioner to secure support for the respondents. As a matter of long and sound Pursuant to Article 207 of the Family Code, Noel Daban can rightfully exact
appellate practice, factual findings of the CA are accorded respect, if not finality, save reimbursement from the petitioner. The provision reads:
[10]
for the most compelling and cogent reasons. Not one of the well-recognized
When the person obliged to support another unjustly refuses or
exceptions to this rule on conclusiveness of factual findings appear to obtain in this
fails to give support when urgently needed by the latter, any third
case. Accordingly, the Court cannot grant the petitioners plea for a review of the CAs person may furnish support to the needy individual, with right of
reimbursement from the person obliged to give support.
findings bearing on the actuality that, as basis for an award of support in arrears, an
extrajudicial demand for support had been made on the petitioner as evidenced by
the December 10, 1975 note adverted to. Lest it be overlooked, the jurisdiction of
Mention may also be made that, contextually, the resulting juridical relationship
the Court in a petition for review, as here, is generally limited to correction of errors
between the petitioner and Noel Daban is a quasi-contract,[13] an equitable principle
of law. Complementing that postulate is the rule that the Court is not bound to
enjoining one from unjustly enriching himself at the expense of another.
analyze and weigh all over again the evidence already considered in the proceedings
As for the amount of support in arrears, there is also no reason to disturb the absolute
below,[11] except when, as earlier indicated, compelling reasons demand a review of
figures arrived at by the two courts below, appearing as they do to be reasonable and
the factual conclusions drawn from such evidence.
proper. Arbitrariness respecting the determination of the final numbers cannot
plausibly be laid on the doorsteps of the CA, and the trial court before it, considering
Petitioners second specification of error touches on the CAs affirmatory holding that
that they fixed such amount based on the varying needs of the respondents during
respondents uncle, Noel Daban, advanced the money for their support. Again,
the years included in the computation and to the financial resources of the petitioner,
petitioners lament on the matter is a veritable call for review of factual
as proved by the evidence adduced below. As a matter of law, the amount of support
determinations of the two courts below. It need not, accordingly, detain us long.
which those related by marriage and family relationship is generally obliged to give
Suffice it to state in that regard that, of their close relatives, the respondents
each other shall be in proportion to the resources or means of the giver and to the
appeared to have stayed longest with their uncle, Noel Daban. Noteworthy also is the
needs of the recipient.[14]
fact that petitioner, from 1976 to 1994, only gave Maowee and Maonaa token
amounts for schooling when support comprises everything indispensable for
Petitioner closes his petition by urging the Court, as it did the CA earlier, to consider
sustenance, dwelling, clothing, medical attendance and education, [12]or, in short,
a transaction that transpired after the trial court had rendered judgment. We refer
whatever is necessary to keep a person alive. Logically, the sisters would, thru their
to the sale by Lea of half of what petitioner claims to be his exclusive or capital
mother, turn to their uncle (Noel Daban) for their sustenance and education when
property. As the petitioner would have this Court believe, Lea and the respondent
petitioner failed to give the same, a failing which stretched from their pre-schooling
sisters appropriated the P5 Million proceeds of the sale for themselves. Pressing on,
days to their college years. Since such failure has been established, it is not amiss to
he alleged that the amount thus received from the sale is more than enough to fully
deduce, as did the trial court and the CA, that Noel Daban who, owing to
satisfy thus release him from complying with- the underlying judgment for
support, assuming ex gratia argumenti his obligation to pay support in arrears.
Petitioners above submission is flawed by the premises holding it together. For firstly,
it assumes as a fact that what was sold for P5 Million was indeed his exclusive
property.But, as the CA aptly observed, there is no showing whether the property
subject of the transaction mentioned by [the petitioner] is a conjugal property or [his]
exclusive property, as in fact [respondents] mother asserts that she and [petitioner]
had separately sold their respective shares on said property.[15]
the sisters have been deprived by a neglectful father of the basic necessities in life as
if it is their fault to have been born. This disposition is thus nothing more than a
belated measure to right a wrong done the herein respondents who are no less
petitioners daughters.
WHEREFORE, the instant petition is DENIED and the appealed CA decision and
resolution are AFFIRMED.
Costs against petitioner.

Secondly, the respondent sisters were not party to the sale aforementioned. SO ORDERED.
Petitioners suggestion, therefore, that part of the proceeds of the sale went to them
and may be set off for what petitioner owes them by way of support in arrears is
unacceptable, being at best gratuitous and self-serving.

Petitioner, unlike any good father of a family, has been remiss in his duty to provide
respondents with support practically all throughout their growing years. At bottom,