Persons/Ass.
No 7
SECOND DIVISION
G.R. No. 79284 November 27, 1987
FROILAN C. GANDIONCO, petitioner,
vs.
HON. SENEN C. PEÑARANDA, as Presiding Judge of the Regional Trial
Court of Misamis Oriental, Branch 18, Cagayan de Oro City, and TERESITA
S. GANDIONCO, respondents.
PADILLA, J.:
A special civil action for certiorari, with application for injunction, to annul (1) the
Order of the respondent Judge, dated 10 December 1986, ordering petitioner
to pay support pendente lite to private respondent (his wife) and their child, and
(2) the Order of the same respondent Judge, dated 5 August 1987, denying
petitioner's motion to suspend hearings in the action for legal separation filed
against him by private respondent as well as his motion to inhibit respondent
Judge from further hearing and trying the case.
On 29 May 1986, private respondent, the legal wife of the petitioner, filed with
the Regional Trial Court of Misamis Oriental, 10th Judicial District, Branch 18,
in Cagayan de Oro City, presided over by respondent Judge, a complaint
against petitioner for legal separation, on the ground of concubinage, with a
petition for support and payment of damages. This case was docketed as Civil
Case No. 10636. On 13 October 1986, private respondent also filed with the
Municipal Trial Court, General Santos City, a complaint against petitioner for
concubinage, which was docketed on 23 October 1986 as Criminal Case No.
15437111. On 14 November 1986, application for the provisional remedy of
support pendente lite, pending a decision in the action for legal separation, was
filed by private respondent in the civil case for legal separation. The respondent
judge, as already stated, on 10 December 1986, ordered The payment of
support pendente lite.
In this recourse, petitioner contends that the civil action for legal separation and
the incidents consequent thereto, such as, application for support pendente
lite, should be suspended in view of the criminal case for concubinage filed
against him the private respondent. In support of his contention, petitioner cites
Art. III. Sec. 3 of the 1985 Rules on Criminal Procedure, which states:
SEC. 3. Other Civil action arising from offenses. — Whenever
the offended party shall have instituted the civil action to
enforce the civil liability arising from the offense. as
contemplated in the first Section 1 hereof, the following rules
shall be observed:
(a) After a criminal action has been commenced the pending
civil action arising from the same offense shall be suspended,
in whatever stage it may be found, until final judgment in the
criminal proceeding has been rendered. . . .
The civil action for legal separation, grounded as it is on concubinage, it is
petitioner's position that such civil action arises from, or is inextricably tied to
the criminal action for concubinage, so that all proceedings related to legal
separation will have to be suspended to await conviction or acquittal for
concubinage in the criminal case. Authority for this position is this Court's
decision in the case of Jerusalem vs. Hon. Roberto Zurbano. 1
Petitioner's contention is not correct.
In Jerusalem, the Court's statement to the effect that suspension of an action
for legal separation would be proper if an allegation of concubinage is made
therein, relied solely on Sec. 1 of Rule 107 of the then provisions of the Rules
of Court on criminal procedure, to wit:
Sec. 1. Rules governing civil actions arising from offenses.-
Except as otherwise provided by law, the following rules shall
he observed:
(a) When a criminal action is instituted, the civil action for
recovery of civil liability arising from the offense charged is
impliedly instituted with the criminal action, unless the
offended party expressly waives the civil action or reserves his
right to institute it separately;
(b) Criminal and civil actions arising from the same offense
may be instituted separately, but after the criminal action has
been commenced the civil action can not be instituted until
final judgment has been rendered in the criminal action;
(c) After a criminal action has been commenced, no civil action
arising from the same offense can be prosecuted and the
same shall be suspended in whatever stage it may be found
until final judgment in the criminal proceeding has been
rendered ... (Emphasis supplied)
The provisions last quoted did not clearly state, as the 1985 Rules do, that the
civil action to be suspended, with or upon the filing of a criminal action, is one
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which is "to enforce the civil liability arising from the offense". In other words, in
view of the amendment under the 1985 Rules on Criminal Procedure, a civil
action for legal separation, based on concubinage, may proceed ahead of, or
simultaneously with, a criminal action for concubinage, because said civil action
is not one "to enforce the civil liability arising from the offense" even if both the
civil and criminal actions arise from or are related to the same offense. Such
civil action is one intended to obtain the right to live separately, with the legal
consequences thereof, such as, the dissolution of the conjugal partnership of
gains, custody of offsprings, support, and disqualification from inheriting from
the innocent spouse, among others. As correctly pointed out by the respondent
Judge in his Order dated 5 August 1987:
The unreported case of JERUSALEM vs. Hon. Roberto
Zurbano, Judge of CFI of Antique, et al., L-11935, April 24,
1959 (105 Phil. 1277) is not controlling. It applied paragraph C
of Sec. 1, of then Rule 107 of the Rules of Court, which reads:
After a criminal action has been
commenced, no civil action arising from the
same offense can be prosecuted and the
same shall be suspended, in whatever stage
it may be found, until final judgment in the
criminal proceeding has been rendered.
(Emphasis supplied)
The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal Procedure
which refers to "civil actions to enforce the civil liability arising from the offense"
as contemplated in the first paragraph of Section 1 of Rule 111-which is a civil
action "for recovery of civil liability arising from the offense charged." Sec. 1,
Rule 111, (1985) is specific that it refers to civil action for the recovery of civil
liability arising from the offense charged. Whereas, the old Sec. 1 (c), Rule 107
simply referred to "Civil action arising from the offense."
As earlier noted this action for legal separation is not to recover civil liability, in
the main, but is aimed at the conjugal rights of the spouses and their relations
to each other, within the contemplation of Articles 7 to 108, of the Civil Code."2
Petitioner also argues that his conviction for concubinage will have to be first
secured before the action for legal separation can prosper or succeed, as the
basis of the action for legal separation is his alleged offense of concubinage.
Petitioner's assumption is erroneous.
A decree of legal separation, on the ground of concubinage, may be issued
upon proof by preponderance of evidence in the action for legal separation. 3 No
criminal proceeding or conviction is necessary. To this end, the doctrine
Persons/Ass. No 7
in Francisco vs. Tayao 4 has been modified, as that case was decided under
Act. No. 2710, when absolute divorce was then allowed and had for its grounds
the same grounds for legal separation under the New Civil Code, with the
requirement, under such former law, that the guilt of defendant spouses had to
be established by final judgment in a criminal action. That requirement has not
been reproduced or adopted by the framers of the present Civil Code, and the
omission has been uniformly accepted as a modification of the stringent rule
in Francisco v. Tayao.5
Petitioner's attempt to resist payment of support pendente lite to his wife must
also fail, as we find no proof of grave abuse of discretion on the part of the
respondent Judge in ordering the same. Support pendente lite, as a remedy,
can be availed of in an action for legal separation, and granted at the discretion
of the judge. 6 If petitioner finds the amount of support pendente lite ordered as
too onerous, he can always file a motion to modify or reduce the same. 7
Petitioner lastly seeks to have the respondent Judge disqualified from hearing
the case, as the grant of supportpendente lite and the denial of the motion to
suspend hearings in the case, are taken by the petitioner as a disregard of
applicable laws and existing doctrines, thereby showing the respondent Judge's
alleged manifest partiality to private respondent.
Petitioner's contention is without merit. Divergence of opinions between a judge
hearing a case and a party's counsel, as to applicable laws and jurisprudence,
is not a sufficient ground to disqualify the judge from hearing the case, on the
ground of bias and manifest partiality. This is more so, in this case, where we
find the judge's disposition of petitioner's motions to be sound and well-taken.
WHEREFORE, the instant petition is hereby DISMISSED. Costs against
petitioner.
SO ORDERED.
Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.
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THIRD DIVISION
[G.R. No. 105308. September 25, 1998]
HERBERT CANG, petitioner, vs. COURT OF APPEALS and Spouses
RONALD V. CLAVANO and MARIA CLARA
CLAVANO, respondents.
DECISION
ROMERO, J.:
Can minor children be legally adopted without the written consent of a
natural parent on the ground that the latter has abandoned them? The
answer to this interesting query, certainly not one of first impression, would
have to be reached, not solely on the basis of law and jurisprudence, but
also the hard reality presented by the facts of the case.
This is the question posed before this Court in this petition for review
on certiorari of the Decision[1] of the Court of Appeals affirming the decree
of adoption issued by the Regional Trial Court of Cebu City, Branch 14,[2] in
Special Proceedings No. 1744-CEB, In the Matter of the Petition for
Adoption of the minors Keith, Charmaine and Joseph Anthony, all surnamed
Cang, Spouses Ronald V. Clavano and Maria Clara Diago Clavano,
petitioners.
Petitioner Herbert Cang and Anna Marie Clavano who were married
on January 27, 1973, begot three children, namely: Keith, born on July 3,
1973; Charmaine, born on January 23, 1977, and Joseph Anthony, born on
January 3, 1981.
During the early years of their marriage, the Cang couples relationship
was undisturbed. Not long thereafter, however, Anna Marie learned of her
husbands alleged extramarital affair with Wilma Soco, a family friend of the
Clavanos.
Upon learning of her husbands alleged illicit liaison, Anna Marie filed a
petition for legal separation with alimony pendente lite[3] with the then
Juvenile and Domestic Relations Court of Cebu[4] which rendered a
decision[5] approving the joint manifestation of the Cang spouses providing
that they agreed to live separately and apart or from bed and board. They
further agreed:
Persons/Ass. No 7
(c) That the children of the parties shall be entitled to a monthly support
of ONE THOUSAND PESOS (P1,000.00) effective from the date
of the filing of the complaint. This shall constitute a first lien on
the net proceeds of the house and lot jointly owned by the parties
situated at Cinco Village, Mandaue City;
(d) That the plaintiff shall be entitled to enter into any contract or
agreement with any person or persons, natural or juridical without
the written consent of the husband; or any undertaking or acts
that ordinarily requires husbands consent as the parties are by
this agreement legally separated;[6]
Petitioner then left for the United States where he sought a divorce
from Anna Marie before the Second Judicial District Court of the State of
Nevada. Said court issued the divorce decree that also granted sole
custody of the three minor children to Anna Marie, reserving rights of
visitation at all reasonable times and places to petitioner.[7]
Thereafter, petitioner took an American wife and thus became a
naturalized American citizen. In 1986, he divorced his American wife and
never remarried.
While in the United States, petitioner worked in Tablante Medical Clinic
earning P18,000.00 to P20,000.00 a month[8] a portion of which was
remitted to the Philippines for his childrens expenses and another,
deposited in the bank in the name of his children.
Meanwhile, on September 25, 1987, private respondents Ronald V.
Clavano and Maria Clara Diago Clavano, respectively the brother and
sister-in-law of Anna Marie, filed Special Proceedings No. 1744-CEB for the
adoption of the three minor Cang children before the Regional Trial Court
of Cebu. The petition bears the signature of then 14-year-old Keith
signifying consent to his adoption. Anna Marie likewise filed an affidavit of
consent alleging that her husband had evaded his legal obligation to support
his children; that her brothers and sisters including Ronald V. Clavano, had
been helping her in taking care of the children; that because she would be
going to the United States to attend to a family business, leaving the children
would be a problem and would naturally hamper (her) job-seeking venture
abroad; and that her husband had long forfeited his parental rights over the
children for the following reasons:
1. The decision in Civil Case No. JD-707 allowed her to enter into any
contract without the written consent of her husband;
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2. Her husband had left the Philippines to be an illegal alien in the United
States and had been transferring from one place to another to avoid
detection by Immigration authorities, and
3. Her husband had divorced her.
Upon learning of the petition for adoption, petitioner immediately
returned to the Philippines and filed an opposition thereto, alleging that,
although private respondents Ronald and Maria Clara Clavano were
financially capable of supporting the children while his finances were too
meager compared to theirs, he could not in conscience, allow anybody to
strip him of his parental authority over his beloved children.
Pending resolution of the petition for adoption, petitioner moved to
reacquire custody over his children alleging that Anna Marie had transferred
to the United States thereby leaving custody of their children to private
respondents. On January 11, 1988, the Regional Trial Court of Cebu City,
Branch 19, issued an order finding that Anna Marie had, in effect,
relinquished custody over the children and, therefore, such custody should
be transferred to the father. The court then directed the Clavanos to deliver
custody over the minors to petitioner.
On March 27, 1990, the Regional Trial Court of Cebu City, Branch 14,
issued a decree of adoption with a dispositive portion reading as follows:
WHEREFORE, premises considered, the petition for adoption of the minors
Keith, Charmaine and Joseph Anthony all surnamed Cang, by the
petitioners-spouses Ronald V. Clavano and Maria Clara Diago Clavano is
hereby granted and approved. These children shall henceforth be known
and called as Keith D. Clavano, Charmaine D. Clavano and Joseph Anthony
D. Clavano respectively. Moreover, this Decree of Adoption shall:
(1) Confer upon the adopted children the same rights and duties
as though they were in fact the legitimate children of the
petitioners;
(2) Dissolve the authority vested in the parents by nature, of the children;
and,
(3) Vest the same authority in the petitioners.
Furnish the Local Civil Registrar of Cebu City, Philippines with a copy of this
Decree of Adoption for registration purposes.
Persons/Ass. No 7
SO ORDERED.
In so ruling, the lower court was impelled by these reasons:
(1) The Cang children had, since birth, developed close filial ties with
the Clavano family, especially their maternal uncle, petitioner
Ronald Clavano.
(2) Ronald and Maria Clara Clavano were childless and, with their
printing press, real estate business, export business and gasoline
station and mini-mart in Rosemead, California, U.S.A., had
substantial assets and income.
(3) The natural mother of the children, Anna Marie, nicknamed
Menchu, approved of the adoption because of her heart ailment,
near-fatal accident in 1981, and the fact that she could not
provide them a secure and happy future as she travels a lot.
(4) The Clavanos could provide the children moral and spiritual
direction as they would go to church together and had sent the
children to Catholic schools.
(5) The children themselves manifested their desire to be adopted by
the Clavanos Keith had testified and expressed the wish to be
adopted by the Clavanos while the two younger ones were
observed by the court to have snuggled close to Ronald even
though their natural mother was around.
On the other hand, the lower court considered the opposition of
petitioner to rest on a very shaky foundation because of its findings that:
(1) Petitioner was morally unfit to be the father of his children on
account of his being an improvident father of his family and an
undisguised Lothario. This conclusion is based on the testimony
of his alleged paramour, mother of his two sons and close friend
of Anna Marie, Wilma Soco, who said that she and petitioner lived
as husband and wife in the very house of the Cangs in Opao,
Mandaue City.
(2) The alleged deposits of around $10,000 that were of comparatively
recent dates were attempts at verisimilitude as these were joint
deposits the authenticity of which could not be verified.
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(3) Contrary to petitioners claim, the possibility of his reconciliation with
Anna Marie was dim if not nil because it was petitioner who
devised, engineered and executed the divorce proceedings at the
Nevada Washoe County court.
(4) By his naturalization as a U.S. citizen, petitioner is now an alien
from the standpoint of Philippine laws and therefore, how his new
attachments and loyalties would sit with his (Filipino) children is
an open question.
Quoting with approval the evaluation and recommendation of the RTC
Social Worker in her Child Study Report, the lower court concluded as
follows:
Simply put, the oppositor Herbert Cang has abandoned his children. And
abandonment of a child by its (sic) parent is commonly specified by statute
as a ground for dispensing with his consent to its (sic) adoption (Re Cozza,
163 Cal. 514 P. 161, Ann. [As. 1914A, 214]). Indeed, in such case, adoption
will be allowed not only without the consent of the parent, but even against
his opposition (Re McKeag, 141 Cal. 403, 74 P. 1039, 99 Am. St. Rep. 80;
Re Camp. 131 Cal. 469, 63 P. 736, 82 Am. St. Rep. 371; Graham v. Francis,
83 Colo. 346, 265 P. 690, citing R.C.L.; Seibert, 170 Iowa, 561, 153 N.W.
160, citing R.C.L.; Stearns v. Allen, 183 Mass. 404, 67 N.E. 349; 97 Am.
St. Rep. 441; Wilson v. Otis, 71 N.H. 483, 53 A. 439, 93 Am. St. Rep. 564;
Nugent v. Powell, 4 Wyo. 173, 33 P. 23, 20 L.R.A. 199, 62 Am. St. Rep.
17.)[9]
Before the Court of Appeals, petitioner contended that the lower court
erred in holding that it would be in the best interest of the three children if
they were adopted by private respondents Ronald and Maria Clara
Clavano. He asserted that the petition for adoption was fatally defective and
tailored to divest him of parental authority because: (a) he did not have a
written consent to the adoption; (b) he never abandoned his children; (c)
Keith and Charmaine did not properly give their written consent; and (d) the
petitioners for adoption did not present as witness the representative of the
Department of Social Welfare and Development who made the case study
report required by law.
The Court of Appeals affirmed the decree of adoption stating:
Article 188 of the Family Code requires the written consent of the natural
parents of the child to be adopted. It has been held however that the
consent of the parent who has abandoned the child is not necessary (Dayrit
vs. Piccio, 92 Phil. 729; Santos vs. Ananzanso, 16 SCRA 344). The
question therefore is whether or not oppositor may be considered as having
Persons/Ass. No 7
abandoned the children. In adoption cases, abandonment connotes any
conduct on the part of the parent to forego parental duties and relinquish
parental claims to the child, or the neglect or refusal to perform the natural
and legal obligations which parents owe their children (Santos vs.
Ananzanso, supra), or the withholding of the parents presence, his care and
the opportunity to display voluntary affection. The issue of abandonment is
amply covered by the discussion of the first error.
Oppositor argues that he has been sending dollar remittances to the
children and has in fact even maintained bank accounts in their names. His
duty to provide support comes from two judicial pronouncements. The first,
the decision in JD-707 CEB, supra, obliges him to pay the
children P1,000.00 a month. The second is mandated by the divorce decree
of the Nevada, U.S.A. Federal Court which orders him to pay monthly
support of US$50.00 for each child. Oppositor has not submitted any
evidence to show compliance with the decision in JD-101 CEB, but he has
submitted 22 cancelled dollar checks (Exhs. 24 to 45) drawn in the childrens
names totalling $2,126.98. The last remittance was on October 6, 1987
(Exh. 45). His obligation to provide support commenced under the divorce
decree on May 5, 1982 so that as of October 6, 1987, oppositor should have
made 53 remittances of $150.00, or a total of $7,950.00. No other
remittances were shown to have been made after October 6, 1987, so that
as of this date, oppositor was woefully in arrears under the terms of the
divorce decree. And since he was totally in default of the judgment in JD-
707 CEB, the inevitable conclusion is oppositor had not really been
performing his duties as a father, contrary to his protestations.
True, it has been shown that oppositor had opened three accounts in
different banks, as follows
Acct. No. Date Opened Balance Name of Bank
July 23, 1985 $5,018.50 Great Western Savings,
1) 118-Oct. 29, 1987 Daly City, Cal., U.S.A.
606437-4
March 5, 1986 3,129.00 Matewan National Bank of
Oct. 26, 1987 Williamson, West Virginia,
2) 73-166-8 U.S.A.
December 31,2,622.19
1986 Security Pacific National
3) 564-146883 Oct. 29, 1987 Bank, Daly City, Cal., U.S.A.
The first and third accounts were opened however in oppositors name as
trustee for Charmaine Cang and Joseph Anthony Cang, respectively. In
other words, the accounts are operated and the amounts withdrawable by
oppositor himself and it cannot be said that they belong to the minors. The
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second is an `or account, in the names of Herbert Cang or Keith Cang.
Since Keith is a minor and in the Philippines, said account is operable only
by oppositor and the funds withdrawable by him alone.
The bank accounts do not really serve what oppositor claimed in his offer
of evidence `the aim and purpose of providing for a better future and security
of his family.[10]
Petitioner moved to reconsider the decision of the Court of Appeals. He
emphasized that the decree of legal separation was not based on the merits
of the case as it was based on a manifestation amounting to a compromise
agreement between him and Anna Marie. That he and his wife agreed upon
the plan for him to leave for the United States was borne out by the fact that
prior to his departure to the United States, the family lived with petitioners
parents. Moreover, he alone did not instigate the divorce proceedings as he
and his wife initiated the joint complaint for divorce.
Petitioner argued that the finding that he was not fit to rear and care for
his children was belied by the award to him of custody over the children in
Civil Case No. JD-707. He took exception to the appellate courts findings
that as an American citizen he could no longer lay claim to custody over his
children because his citizenship would not take away the fact that he is still
a father to his children. As regards his alleged illicit relationship with another
woman, he had always denied the same both in Civil Case No. JD-707 and
the instant adoption case. Neither was it true that Wilma Soco was a
neighbor and family friend of the Clavanos as she was residing in Mandaue
City seven (7) kilometers away from the Clavanos who were residents of
Cebu City. Petitioner insisted that the testimony of Wilma Soco should not
have been given weight for it was only during the hearing of the petition for
adoption that Jose Clavano, a brother of Ronald, came to know her and
went to her residence in Iligan City to convince her to be a witness for
monetary considerations. Lastly, petitioner averred that it would be
hypocritical of the Clavanos to claim that they could love the children much
more than he could.[11]
His motion for reconsideration having been denied, petitioner is now
before this Court, alleging that the petition for adoption was fatally defective
as it did not have his written consent as a natural father as required by
Article 31 (2) of Presidential Decree No. 603, the Child and Youth Welfare
Code, and Article 188 (2) of the Family Code.
Article 31 of P.D. No. 603 provides -
ART. 31. Whose Consent is Necessary. The written consent of the following
to the adoption shall be necessary:
Persons/Ass. No 7
(1) The person to be adopted, if fourteen years of age or over;
(2) The natural parents of the child or his legal guardian of the
Department of Social Welfare or any duly licensed child
placement agency under whose care the child may be;
(3) The natural children, fourteen years and above, of the
adopting parents. (Underscoring supplied)
On December 17, 1986, then President Corazon C. Aquino issued
Executive Order No. 91 amending Articles 27, 28, 29, 31, 33 and 35 of the
Child and Youth Welfare Code. As thus amended, Article 31 read:
ART. 31. Whose Consent is Necessary. The written consent of the following
to the adoption shall be necessary:
(1) The person to be adopted, if fourteen years of age or over;
(2) The natural parents of the child or his legal guardian after
receiving counselling and appropriate social services from
the Ministry of Social Services and Development or from a
duly licensed child-placement agency;
(3) The Ministry of Social Services and Development or any duly
licensed child-placement agency under whose care and
legal custody the child may be;
(4) The natural children, fourteen years and above, of the
adopting parents. (Underscoring supplied)
Jurisdiction being a matter of substantive law, the established rule is
that the statute in force at the time of the commencement of the action
determines the jurisdiction of the court.[12] As such, when private
respondents filed the petition for adoption on September 25, 1987, the
applicable law was the Child and Youth Welfare Code, as amended by
Executive Order No. 91.
During the pendency of the petition for adoption or on August 3, 1988,
the Family Code which amended the Child and Youth Welfare Code took
effect. Article 256 of the Family Code provides for its retroactivity insofar as
it does not prejudice or impair vested or acquired rights in accordance with
the Civil Code or other laws. As amended by the Family Code, the statutory
provision on consent for adoption now reads:
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Art. 188. The written consent of the following to the adoption shall be
necessary:
(1) The person to be adopted, if ten years of age or over;
(2) The parents by nature of the child, the legal guardian, or the
proper government instrumentality;
(3) The legitimate and adopted children, ten years of age or over,
of the adopting parent or parents;
(4) The illegitimate children, ten years of age or over, of the
adopting parents, if living with said parent and the latters
spouse, if any; and
(5) The spouse, if any, of the person adopting or to be adopted.
(Underscoring supplied)
Based on the foregoing, it is thus evident that notwithstanding the
amendments to the law, the written consent of the natural parent to the
adoption has remained a requisite for its validity.Notably, such requirement
is also embodied in Rule 99 of the Rules of Court as follows:
SEC. 3. Consent to adoption. There shall be filed with the petition a written
consent to the adoption signed by the child, if fourteen years of age or over
and not incompetent, and by the childs spouse, if any, and by each of its
known living parents who is not insane or hopelessly intemperate or has not
abandoned the child, or if there are no such parents by the general guardian
or guardian ad litem of the child, or if the child is in the custody of an orphan
asylum, childrens home, or benevolent society or person, by the proper
officer or officers of such asylum, home, or society, or by such persons; but
if the child is illegitimate and has not been recognized, the consent of its
father to the adoption shall not be required. (Underscoring supplied)
As clearly inferred from the foregoing provisions of law, the written
consent of the natural parent is indispensable for the validity of the decree
of adoption. Nevertheless, the requirement of written consent can be
dispensed with if the parent has abandoned the child[13] or that such parent
is insane or hopelessly intemperate. The court may acquire jurisdiction over
the case even without the written consent of the parents or one of the
parents provided that the petition for adoption alleges facts sufficient to
warrant exemption from compliance therewith. This is in consonance with
the liberality with which this Court treats the procedural aspect of
adoption. Thus, the Court declared:
Persons/Ass. No 7
x x x. The technical rules of pleading should not be stringently applied to
adoption proceedings, and it is deemed more important that the petition
should contain facts relating to the child and its parents, which may give
information to those interested, than that it should be formally correct as a
pleading. Accordingly, it is generally held that a petition will confer
jurisdiction if it substantially complies with the adoption statute, alleging all
facts necessary to give the court jurisdiction.[14]
In the instant case, only the affidavit of consent of the natural mother
was attached to the petition for adoption. Petitioners consent, as the natural
father is lacking. Nonetheless, the petition sufficiently alleged the fact of
abandonment of the minors for adoption by the natural father as follows:
3. That the childrens mother, sister of petitioner RONALD V. CLAVANO,
has given her express consent to this adoption, as shown by Affidavit of
Consent, Annex `A. Likewise, the written consent of Keith Cang, now 14
years of age appears on page 2 of this petition; However, the father of the
children, Herbert Cang, had already left his wife and children and had
already divorced the former, as evidenced by the xerox copy of the
DECREE OF DIVORCE issued by the County of Washoe, State of Nevada,
U.S.A. (Annex `B) which was filed at the instance of Mr. Cang, not long after
he abandoned his family to live in the United States as an illegal
immigrant.[15]
The allegations of abandonment in the petition for adoption, even
absent the written consent of petitioner, sufficiently vested the lower court
with jurisdiction since abandonment of the child by his natural parents is one
of the circumstances under which our statutes and
jurisprudence[16] dispense with the requirement of written consent to the
adoption of their minor children.
However, in cases where the father opposes the adoption primarily
because his consent thereto was not sought, the matter of whether he had
abandoned his child becomes a proper issue for determination. The issue
of abandonment by the oppositor natural parent is a preliminary issue that
an adoption court must first confront. Only upon failure of the oppositor
natural father to prove to the satisfaction of the court that he did not abandon
his child may the petition for adoption be considered on its merits.
As a rule, factual findings of the lower courts are final and binding upon
this Court.[17] This Court is not expected nor required to examine or contrast
the oral and documentary evidence submitted by the parties.[18] However,
although this Court is not a trier of facts, it has the authority to review and
reverse the factual findings of the lower courts if it finds that these do not
conform to the evidence on record.[19]
7|Page

In Reyes v. Court of Appeals,[20] this Court has held that the exceptions
to the rule that factual findings of the trial court are final and conclusive and
may not be reviewed on appeal are the following: (1) when the inference
made is manifestly mistaken, absurd or impossible; (2) when there is a
grave abuse of discretion; (3) when the finding is grounded entirely on
speculations, surmises or conjectures; (4) when the judgment of the Court
of Appeals is based on misapprehension of facts; (5) when the findings of
fact are conflicting; (6) when the Court of Appeals, in making its findings,
went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee; (7) when the findings of the
Court of Appeals are contrary to those of the trial court; (8) when the findings
of fact are conclusions without citation of specific evidence on which they
are based; (9) when the Court of Appeals manifestly overlooked certain
relevant facts not disputed by the parties and which, if properly considered,
would justify a different conclusion and (10) when the findings of fact of the
Court of Appeals are premised on the absence of evidence and are
contradicted by the evidence on record.
This Court finds that both the lower court and the Court of Appeals
failed to appreciate facts and circumstances that should have elicited a
different conclusion[21] on the issue of whether petitioner has so abandoned
his children, thereby making his consent to the adoption unnecessary.
In its ordinary sense, the word abandon means to forsake entirely, to
forsake or renounce utterly. The dictionaries trace this word to the root idea
of putting under a ban. The emphasis is on the finality and publicity with
which a thing or body is thus put in the control of another, hence, the
meaning of giving up absolutely, with intent never to resume or claim ones
rights or interests.[22] In reference to abandonment of a child by his parent,
the act of abandonment imports any conduct of the parent which evinces a
settled purpose to forego all parental duties and relinquish all parental
claims to the child. It means neglect or refusal to perform the natural and
legal obligations of care and support which parents owe their children. [23]
In the instant case, records disclose that petitioners conduct did not
manifest a settled purpose to forego all parental duties and relinquish all
parental claims over his children as to constitute abandonment. Physical
estrangement alone, without financial and moral desertion, is not
tantamount to abandonment.[24] While admittedly, petitioner was physically
absent as he was then in the United States, he was not remiss in his natural
and legal obligations of love, care and support for his children. He
maintained regular communication with his wife and children through letters
and telephone. He used to send packages by mail and catered to their
whims.
Persons/Ass. No 7
Petitioners testimony on the matter is supported by documentary
evidence consisting of the following handwritten letters to him of both his
wife and children:
1. Exh. 1 a 4-page undated letter of Menchu (Anna Marie) addressed
to Dear Bert on a C.Westates Carbon Phil. Corp. stationery. Menchu
stated therein that it had been a long time since the last time youve
heard from me excluding that of the phone conversation weve had.
She discussed petitioners intention to buy a motorbike for Keith,
expressing apprehension over risks that could be engendered by
Keiths use of it. She said that in the last phone conversation she had
with petitioner on the birthday of Ma, she forgot to tell petitioner that
Keiths voice had changed; he had become a bagito or a teen-ager with
many fans who sent him Valentines cards. She told him how
Charmaine had become quite a talkative almost dalaga who could
carry on a conversation with her angkong and how pretty she was in
white dress when she won among the candidates in the Flores de
Mayo after she had prayed so hard for it. She informed him, however,
that she was worried because Charmaine was vain and wont to
extravagance as she loved clothes. About Joeton (Joseph Anthony),
she told petitioner that the boy was smart for his age and quite spoiled
being the youngest of the children in Lahug. Joeton was mischievous
but Keith was his idol with whom he would sleep anytime. She admitted
having said so much about the children because they might not have
informed petitioner of some happenings and spices of life about
themselves. She said that it was just very exciting to know how theyve
grown up and very pleasant, too, that each of them have (sic) different
characters. She ended the letter with the hope that petitioner was at
the best of health. After extending her regards to all, she signed her
name after the word Love. This letter was mailed on July 9, 1986 from
Cebu to petitioner whose address was P.O. Box 2445, Williamson,
West Virginia 25661 (Exh. 1-D).
2. Exh. 2 letter dated 11/13/84 on a green stationery with golden print
of a note from Menchu on the left upper corner. Anna Marie stated that
we wrote to petitioner on Oct. 2, 1984 and that Keith and Joeton were
very excited when petitioner called up last time. She told him how
Joeton would grab the phone from Keith just so petitioner would know
what he wanted to order.Charmaine, who was asleep, was so
disappointed that she missed petitioners call because she also wanted
something that petitioner should buy. Menchu told petitioner that
Charmaine wanted a pencil sharpener, light-colored T-shirts for her
walking shorts and a (k)nap sack. Anna Marie informed petitioner that
the kids were growing up and so were their needs. She told petitioner
to be very fatherly about the childrens needs because those were
8|Page

expensive here. For herself, Anna Marie asked for a subscription of
Glamour and Vogue magazines and that whatever expenses he would
incur, she would replace these. As a postscript, she told petitioner that
Keith wanted a size 6 khaki-colored Sperry topsider shoes.
3. Exh. 3 an undated note on a yellow small piece of paper that reads:
Dear Herbert,
Hi, how was Christmas and New Year? Hope you had a wonderful one.
By the way thanks for the shoes, it was a nice one. Its nice to be thought
of at Xmas. Thanks again.
Sincerely,
Menchu
4. Exh. 4 a two-page undated letter of Keith on stationery of Jose
Clavano, Inc. addressed to Dear Dad. Keith told his father that they
tried to tell their mother to stay for a little while, just a few weeks after
classes start(s) on June 16. He informed petitioner that Joeton would
be in Kinder I and that, about the motorbike, he had told his mother to
write petitioner about it and well see what youre (sic) decision will be.
He asked for chocolates, nuts, basketball shirt and shorts, rubber
shoes, socks, headband, some clothes for outing and perfume. He told
petitioner that they had been going to Lahug with their mother picking
them up after Angkong or Ama had prepared lunch or dinner. From
her aerobics, his mother would go for them in Lahug at about 9:30 or
10:00 oclock in the evening. He wished his father luck and the best of
health and that they prayed for him and their other relatives. The letter
was ended with Love Keith.
5. Exh. 5 another undated long letter of Keith. He thanked his father for
the Christmas card with $40.00, $30.00 and $30.00 and the card of
Joeton with $5.00 inside. He told petitioner the amounts following his
fathers instructions and promise to send money through the mail. He
asked his father to address his letter directly to him because he wanted
to open his own letters. He informed petitioner of activities during the
Christmas season that they enjoyed eating, playing and giving
surprises to their mother. He apprised him of his daily schedule and
that their mother had been closely supervising them, instructing them
to fold their blankets and pile up their pillows. He informed petitioner
that Joeton had become very smart while Charmaine, who was also
Persons/Ass. No 7
smart, was very demanding of their mother. Because their mother was
leaving for the United States on February 5, they would be missing her
like they were missing petitioner. He asked for his things and $200.00.
He told petitioner more anecdotes about Joeton like he would make
the sign of the cross even when they would pass by the Iglesia ni
Cristo church and his insistence that Aquino was not dead because he
had seen him on the betamax machine. For Keith, Charmaine had
become very maldita who was not always satisfied with her dolls and
things but Joeton was full of surprises. He ended the letter with Love
your son, Keith. The letter was mailed on February 6, 1985 (Exh. 5-D).
6. Exh. 6 an undated letter Charmaine. She thanked petitioner for the
bathing suit, key chain, pencil box, socks, half shirt, pencil sharpener
and $50.00. She reminded him of of her birthday on January 23 when
she would turn 9 years old. She informed him that she wore size 10
and the size of her feet was IM. They had fun at Christmas in Lahug
but classes would start on January 9 although Keiths classes had
started on January 6. They would feel sad again because Mommy
would be leaving soon. She hoped petitioner would keep writing them.
She signed, Love, Charmaine.
7. Exh . 7 an undated letter of Keith. He explained to petitioner that
they had not been remiss in writing letters to him. He informed him of
their trip to Manila they went to Malacaang, Tito Doy Laurels house,
the Ministry of Foreign Affairs, the executive house, Tagaytay for three
days and Baguio for one week. He informed him that he got honors,
Charmaine was 7th in her class and Joeton had excellent grades.
Joeton would be enrolled in Sacred Heart soon and he was glad they
would be together in that school. He asked for his reward from
petitioner and so with Charmaine and Joeton. He asked for a
motorbike and dollars that he could save. He told petitioner that he was
saving the money he had been sending them. He said he missed
petitioner and wished him the best. He added that petitioner should
call them on Sundays.
8. Exh. 8 a letter from Joeton and Charmaine but apparently written by
the latter. She asked for money from petitioner to buy something for
the school and something else. She promised not to spend so much
and to save some. She said she loved petitioner and missed him.
Joeton said hi! to petitioner. After ending the letter with Love, Joeton
and Charmaine, she asked for her prize for her grades as she got
seventh place.
9|Page

9. Exh. 9 undated letter of Keith. He assured petitioner that he had
been writing him; that he would like to have some money but he would
save them; that he learned that petitioner had called them up but he
was not around; that he would be going to Manila but would be back
home May 3; that his Mommy had just arrived Thursday afternoon, and
that he would be the official altar boy. He asked petitioner to write them
soon.
10. Exh. 10 Keith thanked petitioner for the money he sent. He told
petitioner that he was saving some in the bank and he was proud
because he was the only one in his group who saved in the bank. He
told him that Joeton had become naughty and would claim as his own
the shirts sent to Keith by petitioner. He advised petitioner to send
pants and shirts to Joeton, too, and asked for a pair of topsider shoes
and candies. He informed petitioner that he was a member of the
basketball team and that his mom would drive for his group. He asked
him to call them often like the father of Ana Christie and to write them
when he would call so that they could wait for it. He informed petitioner
that they had all grown bigger and heavier. He hoped petitioner would
be happy with the letter that had taken him so long to write because
he did not want to commit any mistakes. He asked petitioner to buy
him perfume (Drakkar) and, after thanking petitioner, added that the
latter should buy something for Mommy.
11. Exh. 11 a Christmas card For My Wonderful Father dated October
8, 1984 from Keith, Charmaine and Joeton.
12. Exh. 12 another Christmas card, Our Wish For You with the year
83 written on the upper right hand corner of the inside page, from Keith,
Charmaine and Joeton.
13. Exh. 13 a letter of Keith telling petitioner that he had written him
even when their Mom was there where she bought them clothes and
shoes. Keith asked petitioner for $300.00. Because his mother would
not agree to buy him a motorbike, he wanted a Karaoke unit that would
cost P12,000.00. He informed petitioner that he would go to an
afternoon disco with friends but their grades were all good with Joeton
receiving stars for excellence. Keith wanted a bow and arrow Rambo
toys and G.I. Joe. He expressed his desire that petitioner would come
and visit them someday.
14. Exh. 14 a letter of Keith with one of the four pages bearing the date
January 1986. Keith told his father that they had received the package
that the latter sent them. The clothes he sent, however, fitted only Keith
Persons/Ass. No 7
but not Charmaine and Joeton who had both grown bigger. Keith
asked for grocery items, toys and more clothes. He asked, in behalf of
his mother, for low-heeled shoes and a dress to match, jogging pants,
tights and leotards that would make her look sexy. He intimated to
petitioner that he had grown taller and that he was already ashamed
to be asking for things to buy in the grocery even though his mother
had told him not to be shy about it.
Aside from these letters, petitioner also presented certifications of
banks in the U.S.A. showing that even prior to the filing of the petition for
adoption, he had deposited amounts for the benefit of his
children.[25] Exhibits 24 to 45 are copies of checks sent by petitioner to the
children from 1985 to 1989.
These pieces of evidence are all on record. It is, therefore, quite
surprising why the courts below simply glossed over these, ignoring not only
evidence on financial support but also the emotional exchange of
sentiments between petitioner and his family. Instead, the courts below
emphasized the meagerness of the amounts he sent to his children and the
fact that, as regards the bank deposits, these were withdrawable by him
alone. Simply put, the courts below attached a high premium to the
prospective adopters financial status but totally brushed aside the possible
repercussion of the adoption on the emotional and psychological well-being
of the children.
True, Keith had expressed his desire to be adopted by his uncle and
aunt. However, his seeming steadfastness on the matter as shown by his
testimony is contradicted by his feelings towards his father as revealed in
his letters to him. It is not at all farfetched to conclude that Keiths testimony
was actually the effect of the filing of the petition for adoption that would
certainly have engendered confusion in his young mind as to the capability
of his father to sustain the lifestyle he had been used to.
The courts below emphasized respondents emotional attachment to
the children. This is hardly surprising for, from the very start of their young
lives, the children were used to their presence.Such attachment had
persisted and certainly, the young ones act of snuggling close to private
respondent Ronald Clavano was not indicative of their emotional
detachment from their father.Private respondents, being the uncle and aunt
of the children, could not but come to their succor when they needed help
as when Keith got sick and private respondent Ronald spent for his hospital
bills.
In a number of cases, this Court has held that parental authority cannot
be entrusted to a person simply because he could give the child a larger
measure of material comfort than his natural parent. Thus, in David v. Court
of Appeals,[26] the Court awarded custody of a minor illegitimate child to his
10 | P a g e

mother who was a mere secretary and market vendor instead of to his
affluent father who was a married man, not solely because the child opted
to go with his mother. The Court said:
Daisie and her children may not be enjoying a life of affluence that private
respondent promises if the child lives with him. It is enough, however, that
petitioner is earning a decent living and is able to support her children
according to her means.
In Celis v. Cafuir[27] where the Court was confronted with the issue of
whether to award custody of a child to the natural mother or to a foster
mother, this Court said:
This court should avert the tragedy in the years to come of having deprived
mother and son of the beautiful associations and tender, imperishable
memories engendered by the relationship of parent and child. We should
not take away from a mother the opportunity of bringing up her own child
even at the cost of extreme sacrifice due to poverty and lack of means; so
that afterwards, she may be able to look back with pride and a sense of
satisfaction at her sacrifices and her efforts, however humble, to make her
dreams of her little boy come true. We should not forget that the relationship
between a foster mother and a child is not natural but artificial. If the child
turns out to be a failure or forgetful of what its foster parents had done for
him, said parents might yet count and appraise (sic) all that they have done
and spent for him and with regret consider all of it as a dead loss, and even
rue the day they committed the blunder of taking the child into their hearts
and their home. Not so with a real natural mother who never counts the cost
and her sacrifices, ever treasuring memories of her associations with her
child, however unpleasant and disappointing. Flesh and blood count. x x x.
In Espiritu v. Court of Appeals,[28] the Court stated that (I)n ascertaining
the welfare and best interests of the child, courts are mandated by the
Family Code to take into account all relevant considerations. Thus, in
awarding custody of the child to the father, the Court said:
A scrutiny of the pleadings in this case indicates that Teresita, or at least,
her counsel are more intent on emphasizing the `torture and agony of a
mother separated from her children and the humiliation she suffered as a
result of her character being made a key issue in court rather than the
feelings and future, the best interests and welfare of her children. While the
bonds between a mother and her small child are special in nature, either
parent, whether father or mother, is bound to suffer agony and pain if
deprived of custody. One cannot say that his or her suffering is greater than
that of the other parent. It is not so much the suffering, pride, and other
Persons/Ass. No 7
feelings of either parent but the welfare of the child which is the paramount
consideration. (Italics supplied)[29]
Indeed, it would be against the spirit of the law if financial consideration
were to be the paramount consideration in deciding whether to deprive a
person of parental authority over his children. There should be a holistic
approach to the matter, taking into account the physical, emotional,
psychological, mental, social and spiritual needs of the child. [30] The
conclusion of the courts below that petitioner abandoned his family needs
more evidentiary support other than his inability to provide them the material
comfort that his admittedly affluent in-laws could provide.There should be
proof that he had so emotionally abandoned them that his children would
not miss his guidance and counsel if they were given to adopting
parents. The letters he received from his children prove that petitioner
maintained the more important emotional tie between him and his
children. The children needed him not only because he could cater to their
whims but also because he was a person they could share with their daily
activities, problems and triumphs.
The Court is thus dismayed that the courts below did not look beyond
petitioners meager financial support to ferret out other indications on
whether petitioner had in fact abandoned his family. The omission of said
courts has led us to examine why the children were subjected to the process
of adoption, notwithstanding the proven ties that bound them to their father.
To our consternation, the record of the case bears out the fact that the
welfare of the children was not exactly the paramount consideration that
impelled Anna Marie to consent to their adoption.
In her affidavit of consent, Anna Marie expressly said that leaving the
children in the country, as she was wont to travel abroad often, was a
problem that would naturally hamper her job-seeking abroad. In other
words, the adoption appears to be a matter of convenience for her because
Anna Marie herself is financially capable of supporting her children.[31] In his
testimony, private respondent Ronald swore that Anna Marie had been out
of the country for two years and came home twice or three times,[32] thereby
manifesting the fact that it was she who actually left her children to the care
of her relatives. It was bad enough that their father left their children when
he went abroad, but when their mother followed suit for her own reasons,
the situation worsened. The Clavano family must have realized this. Hence,
when the family first discussed the adoption of the children, they decided
that the prospective adopter should be Anna Maries brother Jose. However,
because he had children of his own, the family decided to devolve the task
upon private respondents.[33]
This couple, however, could not always be in Cebu to care for the
children. A businessman, private respondent Ronald Clavano commutes
11 | P a g e

between Cebu and Manila while his wife, private respondent Maria Clara, is
an international flight stewardess.[34] Moreover, private respondent Ronald
claimed that he could take care of the children while their parents are
away,[35] thereby indicating the evanescence of his intention. He wanted to
have the childrens surname changed to Clavano for the reason that he
wanted to take them to the United States as it would be difficult for them to
get a visa if their surname were different from his.[36] To be sure, he also
testified that he wanted to spare the children the stigma of being products
of a broken home.
Nevertheless, a close analysis of the testimonies of private respondent
Ronald, his sister Anna Marie and their brother Jose points to the
inescapable conclusion that they just wanted to keep the children away from
their father. One of the overriding considerations for the adoption was
allegedly the state of Anna Maries health she was a victim of an almost fatal
accident and suffers from a heart ailment. However, she herself admitted
that her health condition was not that serious as she could still take care of
the children.[37] An eloquent evidence of her ability to physically care for
them was her employment at the Philippine Consulate in Los Angeles [38]-
she could not have been employed if her health were endangered. It is thus
clear that the Clavanos attempt at depriving petitioner of parental authority
apparently stemmed from their notion that he was an inveterate
womanizer. Anna Marie in fact expressed fear that her children would never
be at ease with the wife of their father.[39]
Petitioner, who described himself as single in status, denied being a
womanizer and father to the sons of Wilma Soco.[40] As to whether he was
telling the truth is beside the point. Philippine society, being comparatively
conservative and traditional, aside from being Catholic in orientation, it does
not countenance womanizing on the part of a family man, considering the
baneful effects such irresponsible act visits on his family. Neither may the
Court place a premium on the inability of a man to distinguish between siring
children and parenting them. Nonetheless, the actuality that petitioner
carried on an affair with a paramour cannot be taken as sufficient basis for
the conclusion that petitioner was necessarily an unfit
father.[41] Conventional wisdom and common human experience show that
a bad husband does not necessarily make a bad father. That a husband is
not exactly an upright man is not, strictly speaking, a sufficient ground to
deprive him as a father of his inherent right to parental authority over the
children.[42] Petitioner has demonstrated his love and concern for his
children when he took the trouble of sending a telegram[43]to the lower court
expressing his intention to oppose the adoption immediately after learning
about it. He traveled back to this country to attend to the case and to testify
about his love for his children and his desire to unite his family once more
in the United States.[44]
Persons/Ass. No 7
Private respondents themselves explained why petitioner failed to
abide by the agreement with his wife on the support of the
children. Petitioner was an illegal alien in the United States. As such, he
could not have procured gainful employment. Private respondents failed to
refute petitioners testimony that he did not receive his share from the sale
of the conjugal home,[45] pursuant to their manifestation/compromise
agreement in the legal separation case. Hence, it can be reasonably
presumed that the proceeds of the sale redounded to the benefit of his
family, particularly his children. The proceeds may not have lasted long but
there is ample evidence to show that thereafter, petitioner tried to abide by
his agreement with his wife and sent his family money, no matter how
meager.
The liberality with which this Court treats matters leading to adoption
insofar as it carries out the beneficent purposes of the law to ensure the
rights and privileges of the adopted child arising therefrom, ever mindful that
the paramount consideration is the overall benefit and interest of the
adopted child, should be understood in its proper context and
perspective. The Courts position should not be misconstrued or
misinterpreted as to extend to inferences beyond the contemplation of law
and jurisprudence.[46] The discretion to approve adoption proceedings is not
to be anchored solely on best interests of the child but likewise, with due
regard to the natural rights of the parents over the child.[47]
In this regard, this Court notes private respondents reliance on the
manifestation/compromise agreement between petitioner and Anna Marie
which became the basis of the decree of legal separation. According to
private respondents counsel,[48] the authority given to Anna Marie by that
decree to enter into contracts as a result of the legal separation was all
embracing[49] and, therefore, included giving her sole consent to the
adoption. This conclusion is however, anchored on the wrong premise that
the authority given to the innocent spouse to enter into contracts that
obviously refer to their conjugal properties, shall include entering into
agreements leading to the adoption of the children. Such conclusion is as
devoid of a legal basis as private respondents apparent reliance on the
decree of legal separation for doing away with petitioners consent to the
adoption.
The transfer of custody over the children to Anna Marie by virtue of the
decree of legal separation did not, of necessity, deprive petitioner of
parental authority for the purpose of placing the children up for
adoption. Article 213 of the Family Code states: . . . in case of legal
separation of parents, parental authority shall be exercised by the parent
designated by the court. In awarding custody, 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.
12 | P a g e

It should be noted, however, that the law only confers on the innocent
spouse the exercise of parental authority. Having custody of the child, the
innocent spouse shall implement the sum of parental rights with respect to
his rearing and care. The innocent spouse shall have the right to the childs
services and earnings, and the right to direct his activities and make
decisions regarding his care and control, education, health and religion.[50]
In a number of cases, this Court has considered parental authority, the
joint exercise of which is vested by the law upon the parents,[51] as
x x x a mass of rights and obligations which the law grants to parents for the
purpose of the childrens physical preservation and development, as well as
the cultivation of their intellect and the education of their hearts and
senses. As regards parental authority, `there is no power, but a task; no
complex of rights, but a sum of duties; no sovereignty but a sacred trust for
the welfare of the minor.
Parental authority and responsibility are inalienable and may not be
transferred or renounced except in cases authorized by law. The right
attached to parental authority, being purely personal, the law allows a
waiver of parental authority only in cases of adoption, guardianship and
surrender to a childrens home or an orphan institution. When a parent
entrusts the custody of a minor to another, such as a friend or godfather,
even in a document, what is given is merely temporary custody and it does
not constitute a renunciation of parental authority. Even if a definite
renunciation is manifest, the law still disallows the same.
The father and mother, being the natural guardians of unemancipated
children, are duty-bound and entitled to keep them in their custody and
company.[52] (Italics supplied)
As such, in instant case, petitioner may not be deemed as having been
completely deprived of parental authority, notwithstanding the award of
custody to Anna Marie in the legal separation case. To reiterate, that award
was arrived at by the lower court on the basis of the agreement of the
spouses.
While parental authority may be waived, as in law it may be subject to
a compromise,[53] there was no factual finding in the legal separation case
that petitioner was such an irresponsible person that he should be deprived
of custody of his children or that there are grounds under the law that could
deprive him of parental authority. In fact, in the legal separation case, the
court thereafter ordered the transfer of custody over the children from Anna
Marie back to petitioner. The order was not implemented because of Anna
Maries motion for reconsideration thereon. The Clavano family also
Persons/Ass. No 7
vehemently objected to the transfer of custody to the petitioner, such that
the latter was forced to file a contempt charge against them.[54]
The law is clear that either parent may lose parental authority over the
child only for a valid reason. No such reason was established in the legal
separation case. In the instant case for adoption, the issue is whether or not
petitioner had abandoned his children as to warrant dispensation of his
consent to their adoption. Deprivation of parental authority is one of the
effects of a decree of adoption.[55] But there cannot be a valid decree of
adoption in this case precisely because, as this Court has demonstrated
earlier, the finding of the courts below on the issue of petitioners
abandonment of his family was based on a misappreciation that was
tantamount to non-appreciation, of facts on record.
As regards the divorce obtained in the United States, this Court has
ruled in Tenchavez v. Escao[56] that a divorce obtained by Filipino citizens
after the effectivity of the Civil Code is not recognized in this jurisdiction as
it is contrary to State policy. While petitioner is now an American citizen, as
regards Anna Marie who has apparently remained a Filipino citizen, the
divorce has no legal effect.
Parental authority is a constitutionally protected State policy borne out
of established customs and tradition of our people. Thus, in Silva v. Court
of Appeals,[57] a case involving the visitorial rights of an illegitimate parent
over his child, the Court expressed the opinion that:
Parents have the natural right, as well as the moral and legal duty, to care
for their children, see to their upbringing and safeguard their best interest
and welfare. This authority and responsibility may not be unduly denied the
parents; neither may it be renounced by them. Even when the parents are
estranged and their affection for each other is lost, the attachment and
feeling for their offsprings invariably remain unchanged. Neither the law nor
the courts allow this affinity to suffer absent, of course, any real, grave and
imminent threat to the well-being of the child.
Since the incorporation of the law concerning adoption in the Civil
Code, there has been a pronounced trend to place emphasis in adoption
proceedings, not so much on the need of childless couples for a child, as
on the paramount interest of a child who needs the love and care of
parents. After the passage of the Child and Youth Welfare Code and the
Family Code, the discernible trend has impelled the enactment of Republic
Act No. 8043 on Intercountry Adoption[58] and Republic Act No. 8552
establishing the rules on the domestic adoption of Filipino children.[59]
The case at bar applies the relevant provisions of these recent laws,
such as the following policies in the Domestic Adoption Act of 1998:
13 | P a g e
 Persons/Ass. No 7

(a) To ensure that every child remains under the care and custody of
his/her parent(s) and be provided with love, care, understanding
and security towards the full and harmonious development of
his/her personality.[60]
(b) In all matters relating to the care, custody and adoption of a child,
his/her interest shall be the paramount consideration in
accordance with the tenets set forth in the United Nations (UN)
Convention on the Rights of the Child.[61]
(c) To prevent the child from unnecessary separation from his/her
biological parent(s).[62]
Inasmuch as the Philippines is a signatory to the United Nations
Convention on the Rights of the Child, the government and its officials are
duty bound to comply with its mandates. Of particular relevance to instant
case are the following provisions:
States Parties shall respect the responsibilities, rights and duties of parents
. . . to provide, in a manner consistent with the evolving capacities of the
child, appropriate direction and guidance in the exercise by the child of the
rights recognized in the present Convention. [63]
Keith, Charmaine and Joseph Anthony have all grown up. Keith and
Charmaine are now of legal age while Joseph Anthony is approaching
eighteen, the age of majority. For sure, they shall be endowed with the
discretion to lead lives independent of their parents. This is not to state that
this case has been rendered moot and academic, for their welfare and best
interests regarding their adoption, must be determined as of the time that
the petition for adoption was filed.[67] Said petition must be denied as it was
filed without the required consent of their father who, by law and under the
facts of the case at bar, has not abandoned them.
WHEREFORE, the instant petition for review on certiorari is hereby
GRANTED. The questioned Decision and Resolution of the Court of
Appeals, as well as the decision of the Regional Trial Court of Cebu, are
SET ASIDE thereby denying the petition for adoption of Keith, Charmaine
and Joseph Anthony, all surnamed Cang, by the spouse respondents
Ronald and Maria Clara Clavano. This Decision is immediately executory.
SO ORDERED.
Narvasa, C.J., (Chairman), Kapunan, and Purisima, JJ., concur.

States Parties shall respect the right of the child who is separated from one
or both parents to maintain personal relations and direct contact with both
parents on a regular basis, except if it is contrary to the childs best
interests.[64]

A child whose parents reside in different States shall have the right to
maintain on a regular basis, save in exceptional circumstances personal
relations and direct contacts with both parents . . .[65]

States Parties shall respect the rights and duties of the parents . . . to
provide direction to the child in the exercise of his or her right in a manner
consistent with the evolving capacities of the child.[66]

Underlying the policies and precepts in international conventions and

the domestic statutes with respect to children is the overriding principle that
all actuations should be in the best interests of the child. This is not,
however, to be implemented in derogation of the primary right of the parent
or parents to exercise parental authority over him. The rights of parents vis-
-vis that of their children are not antithetical to each other, as in fact, they
must be respected and harmonized to the fullest extent possible.

14 | P a g e

EN BANC
G.R. No. L-30977 January 31, 1972
CARMEN LAPUZ SY, represented by her substitute MACARIO
LAPUZ, petitioner-appellant,
vs.
EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee.
Jose W. Diokno for petitioner-appellant.
D. G. Eufemio for respondent-appellee.
REYES J.B.L., J.:p
Petition, filed after the effectivity of Republic Act 5440, for review
by certiorari of an order, dated 29 July 1969, of the Juvenile and Domestic
Relations Court of Manila, in its Civil Case No. 20387, dismissing said case
for legal separation on the ground that the death of the therein plaintiff,
Carmen O. Lapuz Sy, which occurred during the pendency of the case,
abated the cause of action as well as the action itself. The dismissal order
was issued over the objection of Macario Lapuz, the heir of the deceased
plaintiff (and petitioner herein) who sought to substitute the deceased and
to have the case prosecuted to final judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation
against Eufemio S. Eufemio, alleging, in the main, that they were married
civilly on 21 September 1934 and canonically on 30 September 1934; that
they had lived together as husband and wife continuously until 1943 when
her husband abandoned her; that they had no child; that they acquired
properties during their marriage; and that she discovered her husband
cohabiting with a Chinese woman named Go Hiok at 1319 Sisa Street,
Manila, on or about March 1949. She prayed for the issuance of a decree
of legal separation, which, among others, would order that the defendant
Eufemio S. Eufemio should be deprived of his share of the conjugal
partnership profits.
In his second amended answer to the petition, herein respondent Eufemio
S. Eufemio alleged affirmative and special defenses, and, along with
Persons/Ass. No 7
several other claims involving money and other properties, counter-claimed
for the declaration of nullity ab initio of his marriage with Carmen O. Lapuz
Sy, on the ground of his prior and subsisting marriage, celebrated according
to Chinese law and customs, with one Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the parties adduced their
respective evidence. But before the trial could be completed (the
respondent was already scheduled to present surrebuttal evidence on 9 and
18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular accident
on 31 May 1969. Counsel for petitioner duly notified the court of her death.
On 9 June 1969, respondent Eufemio moved to dismiss the "petition for
legal separation"1 on two (2) grounds, namely: that the petition for legal
separation was filed beyond the one-year period provided for in Article 102
of the Civil Code; and that the death of Carmen abated the action for legal
separation.
On 26 June 1969, counsel for deceased petitioner moved to substitute the
deceased Carmen by her father, Macario Lapuz. Counsel for Eufemio
opposed the motion.
On 29 July 1969, the court issued the order under review, dismissing the
case.2 In the body of the order, the court stated that the motion to dismiss
and the motion for substitution had to be resolved on the question of
whether or not the plaintiff's cause of action has survived, which the court
resolved in the negative. Petitioner's moved to reconsider but the motion
was denied on 15 September 1969.
After first securing an extension of time to file a petition for review of the
order of dismissal issued by the juvenile and domestic relations court, the
petitioner filed the present petition on 14 October 1969. The same was
given due course and answer thereto was filed by respondent, who prayed
for the affirmance of the said order.3
Although the defendant below, the herein respondent Eufemio S. Eufemio,
filed counterclaims, he did not pursue them after the court below dismissed
the case. He acquiesced in the dismissal of said counterclaims by praying
for the affirmance of the order that dismissed not only the petition for legal
separation but also his counterclaim to declare the Eufemio-Lapuz marriage
to be null and void ab initio.
But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute —
for the lower court did not act on the motion for substitution) stated the
principal issue to be as follows:
15 | P a g e

When an action for legal separation is converted by the
counterclaim into one for a declaration of nullity of a
marriage, does the death of a party abate the proceedings?
The issue as framed by petitioner injects into it a supposed conversion of a
legal separation suit to one for declaration of nullity of a marriage, which is
without basis, for even petitioner asserted that "the respondent has
acquiesced to the dismissal of his counterclaim" (Petitioner's Brief, page
22). Not only this. The petition for legal separation and the counterclaim to
declare the nullity of the self same marriage can stand independent and
separate adjudication. They are not inseparable nor was the action for legal
separation converted into one for a declaration of nullity by the
counterclaim, for legal separation pre-supposes a valid marriage, while the
petition for nullity has a voidable marriage as a pre-condition.
The first real issue in this case is: Does the death of the plaintiff before final
decree, in an action for legal separation, abate the action? If it does, will
abatement also apply if the action involves property rights? .
An action for legal separation which involves nothing more than the bed-
and-board separation of the spouses (there being no absolute divorce in
this jurisdiction) is purely personal. The Civil Code of the Philippines
recognizes this in its Article 100, by allowing only the innocent spouse (and
no one else) to claim legal separation; and in its Article 108, by providing
that the spouses can, by their reconciliation, stop or abate the proceedings
and even rescind a decree of legal separation already rendered. Being
personal in character, it follows that the death of one party to the action
causes the death of the action itself — actio personalis moritur cum
persona.
... When one of the spouses is dead, there is no need for
divorce, because the marriage is dissolved. The heirs
cannot even continue the suit, if the death of the spouse
takes place during the course of the suit (Article 244,
Section 3). The action is absolutely dead (Cass., July 27,
1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. H. 1933,
332.")4 .
Marriage is a personal relation or status, created under the
sanction of law, and an action for divorce is a proceeding
brought for the purpose of effecting a dissolution of that
relation. The action is one of a personal nature. In the
absence of a statute to the contrary, the death of one of the
parties to such action abates the action, for the reason that
Persons/Ass. No 7
death has settled the question of separation beyond all
controversy and deprived the court of jurisdiction, both over
the persons of the parties to the action and of the subject-
matter of the action itself. For this reason the courts are
almost unanimous in holding that the death of either party
to a divorce proceeding, before final decree, abates the
action. 1 Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72;
Danforth v. Danforth, 111 Ill. 236; Matter of Grandall, 196
N.Y. 127, 89 N.E. 578; 134 Am St. Rep. 830; 17 Ann. Cas.
874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817;
Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659;
McCurley v. McCurley, 60 Md. 185, 45 Am. Rep. 717;
Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A.
141. 5
The same rule is true of causes of action and suits for separation and
maintenance (Johnson vs. Bates, Ark. 101 SW 412; 1 Corpus Juris 208).
A review of the resulting changes in property relations between spouses
shows that they are solely the effect of the decree of legal separation;
hence, they can not survive the death of the plaintiff if it occurs prior to the
decree. On the point, Article 106 of the Civil Code provides: .
Art. 106. The decree of legal separation shall have the
following effects:
(1) The spouses shall be entitled to live separately from
each other, but the marriage bonds shall not be severed; .
(2) The conjugal partnership of gains or the absolute
conjugal community of property shall be dissolved and
liquidated, but the offending spouse shall have no right to
any share of the profits earned by the partnership or
community, without prejudice to the provisions of article
176;
(3) The custody of the minor children shall be awarded to
the innocent spouse, unless otherwise directed by the court
in the interest of said minors, for whom said court may
appoint a guardian;
(4) The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the offending
16 | P a g e

spouse made in the will of the innocent one shall be
revoked by operation of law.
From this article it is apparent that the right to the dissolution of the conjugal
partnership of gains (or of the absolute community of property), the loss of
right by the offending spouse to any share of the profits earned by the
partnership or community, or his disqualification to inherit by intestacy from
the innocent spouse as well as the revocation of testamentary provisions in
favor of the offending spouse made by the innocent one, are all rights and
disabilities that, by the very terms of the Civil Code article, are vested
exclusively in the persons of the spouses; and by their nature and intent,
such claims and disabilities are difficult to conceive as assignable or
transmissible. Hence, a claim to said rights is not a claim that "is not thereby
extinguished" after a party dies, under Section 17, Rule 3, of the Rules of
Court, to warrant continuation of the action through a substitute of the
deceased party.
Sec. 17. Death of party. After a party dies and the claim is
not thereby extinguished, the court shall order, upon proper
notice, the legal representative of the deceased to appear
and to be substituted for the deceased, within a period of
thirty (30) days, or within such time as may be granted...
The same result flows from a consideration of the enumeration of the
actions that survive for or against administrators in Section 1, Rule 87, of
the Revised Rules of Court:
SECTION 1. Actions which may and which may not be
brought against executor or administrator. No action upon
a claim for the recovery of money or debt or interest thereon
shall be commenced against the executor or administrator;
but actions to recover real or personal property, or an
interest therein, from the estate, or to enforce a lien
thereon, and actions to recover damages for an injury to
person or property, real or personal, may be commenced
against him.
Neither actions for legal separation or for annulment of marriage can be
deemed fairly included in the enumeration..
A further reason why an action for legal separation is abated by the death
of the plaintiff, even if property rights are involved, is that these rights are
mere effects of decree of separation, their source being the decree itself;
without the decree such rights do not come into existence, so that before
Persons/Ass. No 7
the finality of a decree, these claims are merely rights in expectation. If
death supervenes during the pendency of the action, no decree can be
forthcoming, death producing a more radical and definitive separation; and
the expected consequential rights and claims would necessarily remain
unborn.
As to the petition of respondent-appellee Eufemio for a declaration of
nullity ab initio of his marriage to Carmen Lapuz, it is apparent that such
action became moot and academic upon the death of the latter, and there
could be no further interest in continuing the same after her demise, that
automatically dissolved the questioned union. Any property rights acquired
by either party as a result of Article 144 of the Civil Code of the Philippines
6 could be resolved and determined in a proper action for partition by either
the appellee or by the heirs of the appellant.
In fact, even if the bigamous marriage had not been void ab initio but only
voidable under Article 83, paragraph 2, of the Civil Code, because the
second marriage had been contracted with the first wife having been an
absentee for seven consecutive years, or when she had been generally
believed dead, still the action for annulment became extinguished as soon
as one of the three persons involved had died, as provided in Article 87,
paragraph 2, of the Code, requiring that the action for annulment should be
brought during the lifetime of any one of the parties involved. And
furthermore, the liquidation of any conjugal partnership that might have
resulted from such voidable marriage must be carried out "in the testate or
intestate proceedings of the deceased spouse", as expressly provided in
Section 2 of the Revised Rule 73, and not in the annulment proceeding.
ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile
and Domestic Relations is hereby affirmed. No special pronouncement as
to costs.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee,
Barredo, Villamor and Makasiar, JJ., concur.
17 | P a g e

EN BANC
G.R. No. L-19671 November 29, 1965
PASTOR B. TENCHAVEZ, plaintiff-appellant,
vs.
VICENTA F. ESCAÑO, ET AL., defendants-appellees.
I. V. Binamira & F. B. Barria for plaintiff-appellant.
Jalandoni & Jarnir for defendants-appellees.
REYES, J.B.L., J.:
Direct appeal, on factual and legal questions, from the judgment of the Court
of First Instance of Cebu, in its Civil Case No. R-4177, denying the claim of
the plaintiff-appellant, Pastor B. Tenchavez, for legal separation and one
million pesos in damages against his wife and parents-in-law, the
defendants-appellees, Vicente, Mamerto and Mena,1 all surnamed
"Escaño," respectively.2
The facts, supported by the evidence of record, are the following:
Missing her late afternoon classes on 24 February 1948 in the University of
San Carlos, Cebu City, where she was then enrolled as a second year
student of commerce, Vicenta Escaño, 27 years of age (scion of a well-to-
do and socially prominent Filipino family of Spanish ancestry and a
"sheltered colegiala"), exchanged marriage vows with Pastor Tenchavez,
32 years of age, an engineer, ex-army officer and of undistinguished stock,
without the knowledge of her parents, before a Catholic chaplain, Lt. Moises
Lavares, in the house of one Juan Alburo in the said city. The marriage was
the culmination of a previous love affair and was duly registered with the
local civil register.
Vicenta's letters to Pastor, and his to her, before the marriage, indicate that
the couple were deeply in love. Together with a friend, Pacita Noel, their
matchmaker and go-between, they had planned out their marital future
whereby Pacita would be the governess of their first-born; they started
saving money in a piggy bank. A few weeks before their secret marriage,
their engagement was broken; Vicenta returned the engagement ring and
accepted another suitor, Joseling Lao. Her love for Pastor beckoned; she
pleaded for his return, and they reconciled. This time they planned to get
married and then elope. To facilitate the elopement, Vicenta had brought
some of her clothes to the room of Pacita Noel in St. Mary's Hall, which was
their usual trysting place.
Persons/Ass. No 7
Although planned for the midnight following their marriage, the elopement
did not, however, materialize because when Vicente went back to her
classes after the marriage, her mother, who got wind of the intended
nuptials, was already waiting for her at the college. Vicenta was taken home
where she admitted that she had already married Pastor. Mamerto and
Mena Escaño were surprised, because Pastor never asked for the hand of
Vicente, and were disgusted because of the great scandal that the
clandestine marriage would provoke (t.s.n., vol. III, pp. 1105-06). The
following morning, the Escaño spouses sought priestly advice. Father
Reynes suggested a recelebration to validate what he believed to be an
invalid marriage, from the standpoint of the Church, due to the lack of
authority from the Archbishop or the parish priest for the officiating chaplain
to celebrate the marriage. The recelebration did not take place, because on
26 February 1948 Mamerto Escaño was handed by a maid, whose name
he claims he does not remember, a letter purportedly coming from San
Carlos college students and disclosing an amorous relationship between
Pastor Tenchavez and Pacita Noel; Vicenta translated the letter to her
father, and thereafter would not agree to a new marriage. Vicenta and
Pastor met that day in the house of Mrs. Pilar Mendezona. Thereafter,
Vicenta continued living with her parents while Pastor returned to his job in
Manila. Her letter of 22 March 1948 (Exh. "M"), while still solicitous of her
husband's welfare, was not as endearing as her previous letters when their
love was aflame.
Vicenta was bred in Catholic ways but is of a changeable disposition, and
Pastor knew it. She fondly accepted her being called a "jellyfish." She was
not prevented by her parents from communicating with Pastor (Exh. "1-
Escaño"), but her letters became less frequent as the days passed. As of
June, 1948 the newlyweds were already estranged (Exh. "2-Escaño").
Vicenta had gone to Jimenez, Misamis Occidental, to escape from the
scandal that her marriage stirred in Cebu society. There, a lawyer filed for
her a petition, drafted by then Senator Emmanuel Pelaez, to annul her
marriage. She did not sign the petition (Exh. "B-5"). The case was dismissed
without prejudice because of her non-appearance at the hearing (Exh. "B-
4").
On 24 June 1950, without informing her husband, she applied for a
passport, indicating in her application that she was single, that her purpose
was to study, and she was domiciled in Cebu City, and that she intended to
return after two years. The application was approved, and she left for the
United States. On 22 August 1950, she filed a verified complaint for divorce
against the herein plaintiff in the Second Judicial District Court of the State
of Nevada in and for the County of Washoe, on the ground of "extreme
cruelty, entirely mental in character." On 21 October 1950, a decree of
divorce, "final and absolute", was issued in open court by the said tribunal.
18 | P a g e

In 1951 Mamerto and Mena Escaño filed a petition with the Archbishop of
Cebu to annul their daughter's marriage to Pastor (Exh. "D"). On 10
September 1954, Vicenta sought papal dispensation of her marriage (Exh.
"D"-2).
On 13 September 1954, Vicenta married an American, Russell Leo Moran,
in Nevada. She now lives with him in California, and, by him, has begotten
children. She acquired American citizenship on 8 August 1958.
But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a
complaint in the Court of First Instance of Cebu, and amended on 31 May
1956, against Vicenta F. Escaño, her parents, Mamerto and Mena Escaño,
whom he charged with having dissuaded and discouraged Vicenta from
joining her husband, and alienating her affections, and against the Roman
Catholic Church, for having, through its Diocesan Tribunal, decreed the
annulment of the marriage, and asked for legal separation and one million
pesos in damages. Vicenta claimed a valid divorce from plaintiff and an
equally valid marriage to her present husband, Russell Leo Moran; while
her parents denied that they had in any way influenced their daughter's acts,
and counterclaimed for moral damages.
The appealed judgment did not decree a legal separation, but freed the
plaintiff from supporting his wife and to acquire property to the exclusion of
his wife. It allowed the counterclaim of Mamerto Escaño and Mena Escaño
for moral and exemplary damages and attorney's fees against the plaintiff-
appellant, to the extent of P45,000.00, and plaintiff resorted directly to this
Court.
The appellant ascribes, as errors of the trial court, the following:
1. In not declaring legal separation; in not holding defendant
Vicenta F. Escaño liable for damages and in dismissing the
complaint;.
2. In not holding the defendant parents Mamerto Escano and the
heirs of Doña Mena Escaño liable for damages;.
3 In holding the plaintiff liable for and requiring him to pay the
damages to the defendant parents on their counterclaims; and.
4. In dismissing the complaint and in denying the relief sought by
the plaintiff.
Persons/Ass. No 7
That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the
defendant-appellee, Vicenta Escaño, were validly married to each other,
from the standpoint of our civil law, is clearly established by the record
before us. Both parties were then above the age of majority, and otherwise
qualified; and both consented to the marriage, which was performed by a
Catholic priest (army chaplain Lavares) in the presence of competent
witnesses. It is nowhere shown that said priest was not duly authorized
under civil law to solemnize marriages.
The chaplain's alleged lack of ecclesiastical authorization from the parish
priest and the Ordinary, as required by Canon law, is irrelevant in our civil
law, not only because of the separation of Church and State but also
because Act 3613 of the Philippine Legislature (which was the marriage law
in force at the time) expressly provided that —
SEC. 1. Essential requisites. Essential requisites for marriage are
the legal capacity of the contracting parties and consent. (Emphasis
supplied)
The actual authority of the solemnizing officer was thus only a formal
requirement, and, therefore, not essential to give the marriage civil
effects,3 and this is emphasized by section 27 of said marriage act, which
provided the following:
SEC. 27. Failure to comply with formal requirements. No marriage
shall be declared invalid because of the absence of one or several
of the formal requirements of this Act if, when it was performed, the
spouses or one of them believed in good faith that the person who
solemnized the marriage was actually empowered to do so, and
that the marriage was perfectly legal.
The good faith of all the parties to the marriage (and hence the validity of
their marriage) will be presumed until the contrary is positively proved (Lao
vs. Dee Tim, 45 Phil. 739, 745; Francisco vs. Jason, 60 Phil. 442, 448). It is
well to note here that in the case at bar, doubts as to the authority of the
solemnizing priest arose only after the marriage, when Vicenta's parents
consulted Father Reynes and the archbishop of Cebu. Moreover, the very
act of Vicenta in abandoning her original action for annulment and
subsequently suing for divorce implies an admission that her marriage to
plaintiff was valid and binding.
Defendant Vicenta Escaño argues that when she contracted the marriage
she was under the undue influence of Pacita Noel, whom she charges to
have been in conspiracy with appellant Tenchavez. Even granting, for
19 | P a g e

argument's sake, the truth of that contention, and assuming that Vicenta's
consent was vitiated by fraud and undue influence, such vices did not
render her marriage ab initio void, but merely voidable, and the marriage
remained valid until annulled by a competent civil court. This was never
done, and admittedly, Vicenta's suit for annulment in the Court of First
Instance of Misamis was dismissed for non-prosecution.
It is equally clear from the record that the valid marriage between Pastor
Tenchavez and Vicenta Escaño remained subsisting and undissolved
under Philippine law, notwithstanding the decree of absolute divorce that
the wife sought and obtained on 21 October 1950 from the Second Judicial
District Court of Washoe County, State of Nevada, on grounds of "extreme
cruelty, entirely mental in character." At the time the divorce decree was
issued, Vicenta Escaño, like her husband, was still a Filipino citizen.4 She
was then subject to Philippine law, and Article 15 of the Civil Code of the
Philippines (Rep. Act No. 386), already in force at the time, expressly
provided:
Laws relating to family rights and duties or to the status, condition
and legal capacity of persons are binding upon the citizens of the
Philippines, even though living abroad.
The Civil Code of the Philippines, now in force, does not admit absolute
divorce, quo ad vinculo matrimonii; and in fact does not even use that term,
to further emphasize its restrictive policy on the matter, in contrast to the
preceding legislation that admitted absolute divorce on grounds of adultery
of the wife or concubinage of the husband (Act 2710). Instead of divorce,
the present Civil Code only provides for legal separation (Title IV, Book 1,
Arts. 97 to 108), and, even in that case, it expressly prescribes that "the
marriage bonds shall not be severed" (Art. 106, subpar. 1).
For the Philippine courts to recognize and give recognition or effect to a
foreign decree of absolute divorce betiveen Filipino citizens could be a
patent violation of the declared public policy of the state, specially in view
of the third paragraph of Article 17 of the Civil Code that prescribes the
following:
Prohibitive laws concerning persons, their acts or property, and
those which have for their object public order, policy and good
customs, shall not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions agreed upon in
a foreign country.
Persons/Ass. No 7
Even more, the grant of effectivity in this jurisdiction to such foreign divorce
decrees would, in effect, give rise to an irritating and scandalous
discrimination in favor of wealthy citizens, to the detriment of those
members of our polity whose means do not permit them to sojourn abroad
and obtain absolute divorces outside the Philippines.
From this point of view, it is irrelevant that appellant Pastor Tenchavez
should have appeared in the Nevada divorce court. Primarily because the
policy of our law cannot be nullified by acts of private parties (Civil Code,Art.
17, jam quot.); and additionally, because the mere appearance of a non-
resident consort cannot confer jurisdiction where the court originally had
none (Area vs. Javier, 95 Phil. 579).
From the preceding facts and considerations, there flows as a necessary
consequence that in this jurisdiction Vicenta Escaño's divorce and second
marriage are not entitled to recognition as valid; for her previous union to
plaintiff Tenchavez must be declared to be existent and undissolved. It
follows, likewise, that her refusal to perform her wifely duties, and her denial
of consortium and her desertion of her husband constitute in law a wrong
caused through her fault, for which the husband is entitled to the
corresponding indemnity (Civil Code, Art. 2176). Neither an unsubstantiated
charge of deceit nor an anonymous letter charging immorality against the
husband constitute, contrary to her claim, adequate excuse. Wherefore, her
marriage and cohabitation with Russell Leo Moran is technically
"intercourse with a person not her husband" from the standpoint of
Philippine Law, and entitles plaintiff-appellant Tenchavez to a decree of
"legal separation under our law, on the basis of adultery" (Revised Penal
Code, Art. 333).
The foregoing conclusions as to the untoward effect of a marriage after an
invalid divorce are in accord with the previous doctrines and rulings of this
court on the subject, particularly those that were rendered under our laws
prior to the approval of the absolute divorce act (Act 2710 of the Philippine
Legislature). As a matter of legal history, our statutes did not recognize
divorces a vinculo before 1917, when Act 2710 became effective; and the
present Civil Code of the Philippines, in disregarding absolute divorces, in
effect merely reverted to the policies on the subject prevailing before Act
2710. The rulings, therefore, under the Civil Code of 1889, prior to the Act
above-mentioned, are now, fully applicable. Of these, the decision
in Ramirez vs. Gmur, 42 Phil. 855, is of particular interest. Said this Court
in that case:
As the divorce granted by the French Court must be ignored, it
results that the marriage of Dr. Mory and Leona Castro, celebrated
20 | P a g e

in London in 1905, could not legalize their relations; and the
circumstance that they afterwards passed for husband and wife in
Switzerland until her death is wholly without legal significance. The
claims of the very children to participate in the estate of Samuel
Bishop must therefore be rejected. The right to inherit is limited to
legitimate, legitimated and acknowledged natural children. The
children of adulterous relations are wholly excluded. The word
"descendants" as used in Article 941 of the Civil Code cannot be
interpreted to include illegitimates born of adulterous relations.
(Emphasis supplied)
Except for the fact that the successional rights of the children, begotten from
Vicenta's marriage to Leo Moran after the invalid divorce, are not involved
in the case at bar, the Gmur case is authority for the proposition that such
union is adulterous in this jurisdiction, and, therefore, justifies an action for
legal separation on the part of the innocent consort of the first marriage, that
stands undissolved in Philippine law. In not so declaring, the trial court
committed error.
True it is that our ruling gives rise to anomalous situations where the status
of a person (whether divorced or not) would depend on the territory where
the question arises. Anomalies of this kind are not new in the Philippines,
and the answer to them was given in Barretto vs. Gonzales, 58 Phil. 667:
The hardship of the existing divorce laws in the Philippine Islands
are well known to the members of the Legislature. It is the duty of
the Courts to enforce the laws of divorce as written by Legislature
if they are constitutional. Courts have no right to say that such laws
are too strict or too liberal. (p. 72)
The appellant's first assignment of error is, therefore, sustained.
However, the plaintiff-appellant's charge that his wife's parents, Dr.
Mamerto Escaño and his wife, the late Doña Mena Escaño, alienated the
affections of their daughter and influenced her conduct toward her husband
are not supported by credible evidence. The testimony of Pastor Tenchavez
about the Escaño's animosity toward him strikes us to be merely conjecture
and exaggeration, and are belied by Pastor's own letters written before this
suit was begun (Exh. "2-Escaño" and "Vicenta," Rec. on App., pp. 270-274).
In these letters he expressly apologized to the defendants for "misjudging
them" and for the "great unhappiness" caused by his "impulsive blunders"
and "sinful pride," "effrontery and audacity" [sic]. Plaintiff was admitted to
the Escaño house to visit and court Vicenta, and the record shows nothing
to prove that he would not have been accepted to marry Vicente had he
Persons/Ass. No 7
openly asked for her hand, as good manners and breeding demanded.
Even after learning of the clandestine marriage, and despite their shock at
such unexpected event, the parents of Vicenta proposed and arranged that
the marriage be recelebrated in strict conformity with the canons of their
religion upon advice that the previous one was canonically defective. If no
recelebration of the marriage ceremony was had it was not due to
defendants Mamerto Escaño and his wife, but to the refusal of Vicenta to
proceed with it. That the spouses Escaño did not seek to compel or induce
their daughter to assent to the recelebration but respected her decision, or
that they abided by her resolve, does not constitute in law an alienation of
affections. Neither does the fact that Vicenta's parents sent her money while
she was in the United States; for it was natural that they should not wish
their daughter to live in penury even if they did not concur in her decision to
divorce Tenchavez (27 Am. Jur. 130-132).
There is no evidence that the parents of Vicenta, out of improper motives,
aided and abetted her original suit for annulment, or her subsequent
divorce; she appears to have acted independently, and being of age, she
was entitled to judge what was best for her and ask that her decisions be
respected. Her parents, in so doing, certainly cannot be charged with
alienation of affections in the absence of malice or unworthy motives, which
have not been shown, good faith being always presumed until the contrary
is proved.
SEC. 529. Liability of Parents, Guardians or Kin. — The law
distinguishes between the right of a parent to interest himself in the
marital affairs of his child and the absence of rights in a stranger to
intermeddle in such affairs. However, such distinction between the
liability of parents and that of strangers is only in regard to what will
justify interference. A parent isliable for alienation of affections
resulting from his own malicious conduct, as where he wrongfully
entices his son or daughter to leave his or her spouse, but he is not
liable unless he acts maliciously, without justification and from
unworthy motives. He is not liable where he acts and advises his
child in good faith with respect to his child's marital relations in the
interest of his child as he sees it, the marriage of his child not
terminating his right and liberty to interest himself in, and be
extremely solicitous for, his child's welfare and happiness, even
where his conduct and advice suggest or result in the separation of
the spouses or the obtaining of a divorce or annulment, or where
he acts under mistake or misinformation, or where his advice or
interference are indiscreet or unfortunate, although it has been held
that the parent is liable for consequences resulting from
recklessness. He may in good faith take his child into his home and
afford him or her protection and support, so long as he has not
21 | P a g e
 Persons/Ass. No 7

maliciously enticed his child away, or does not maliciously entice or
cause him or her to stay away, from his or her spouse. This rule has
more frequently been applied in the case of advice given to a
married daughter, but it is equally applicable in the case of advice
given to a son.
Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or
social discrimination and with having exerted efforts and pressured her to
seek annulment and divorce, unquestionably caused them unrest and
anxiety, entitling them to recover damages. While this suit may not have
been impelled by actual malice, the charges were certainly reckless in the
face of the proven facts and circumstances. Court actions are not
established for parties to give vent to their prejudices or spleen.
contracted with another party by the divorced consort, subsequently to the
foreign decree of divorce, entitled to validity in the country;
(2) That the remarriage of divorced wife and her co-habitation with a person
other than the lawful husband entitle the latter to a decree of legal
separation conformably to Philippine law;
(3) That the desertion and securing of an invalid divorce decree by one
consort entitles the other to recover damages;
(4) That an action for alienation of affections against the parents of one
consort does not lie in the absence of proof of malice or unworthy motives
on their part.

In the assessment of the moral damages recoverable by appellant Pastor

WHEREFORE, the decision under appeal is hereby modified as follows;
Tenchavez from defendant Vicente Escaño, it is proper to take into account,
against his patently unreasonable claim for a million pesos in damages, that
(a) the marriage was celebrated in secret, and its failure was not (1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of
characterized by publicity or undue humiliation on appellant's part; (b) that legal separation from defendant Vicenta F. Escaño;
the parties never lived together; and (c) that there is evidence that appellant
had originally agreed to the annulment of the marriage, although such a (2) Sentencing defendant-appellee Vicenta Escaño to pay plaintiff-appellant
promise was legally invalid, being against public policy (cf. Art. 88, Civ. Tenchavez the amount of P25,000 for damages and attorneys' fees;
Code). While appellant is unable to remarry under our law, this fact is a
consequence of the indissoluble character of the union that appellant (3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto
entered into voluntarily and with open eyes rather than of her divorce and Escaño and the estate of his wife, the deceased Mena Escaño, P5,000 by
her second marriage. All told, we are of the opinion that appellant should way of damages and attorneys' fees.
recover P25,000 only by way of moral damages and attorney's fees.
Neither party to recover costs.
With regard to the P45,000 damages awarded to the defendants, Dr.
Mamerto Escaño and Mena Escaño, by the court below, we opine that the Bengzon, C.J., Bautista Angelo, Concepcion, Dizon, Regala, Makalintal,
same are excessive. While the filing of this unfounded suit must have Bengzon, J.P. and Zaldivar, JJ., concur.
wounded said defendants' feelings and caused them anxiety, the same
could in no way have seriously injured their reputation, or otherwise
prejudiced them, lawsuits having become a common occurrence in present
society. What is important, and has been correctly established in the
decision of the court below, is that said defendants were not guilty of any
improper conduct in the whole deplorable affair. This Court, therefore,
reduces the damages awarded to P5,000 only.

Summing up, the Court rules:

(1) That a foreign divorce between Filipino citizens, sought and decreed
after the effectivity of the present Civil Code (Rep. Act 386), is not entitled
to recognition as valid in this jurisdiction; and neither is the marriage

22 | P a g e

SECOND DIVISION
[G.R. No. 127406. November 27, 2000]
OFELIA P. TY, petitioner, vs. THE COURT OF APPEALS, and
EDGARDO M. REYES, respondents.
DECISION
QUISUMBING, J.:
This appeal seeks the reversal of the decision dated July 24, 1996, of
the Court of Appeals in C.A. G.R. CV 37897, which affirmed the decision of
the Regional Trial Court of Pasig, Branch 160, declaring the marriage
contract between private respondent Edgardo M. Reyes and petitioner
Ofelia P. Ty null and void ab initio. It also ordered private respondent to pay
P15,000.00 as monthly support for their children Faye Eloise Reyes and
Rachel Anne Reyes.
As shown in the records of the case, private respondent married Anna
Maria Regina Villanueva in a civil ceremony on March 29, 1977, in
Manila. Then they had a church wedding on August 27, 1977. However, on
August 4, 1980, the Juvenile and Domestic Relations Court of Quezon City
declared their marriage null and void ab initio for lack of a valid marriage
license. The church wedding on August 27, 1977, was also declared null
and void ab initio for lack of consent of the parties.
Even before the decree was issued nullifying his marriage to Anna
Maria, private respondent wed Ofelia P. Ty, herein petitioner, on April 4,
1979, in ceremonies officiated by the judge of the City Court of Pasay. On
April 4, 1982, they also had a church wedding in Makati, Metro Manila.
On January 3, 1991, private respondent filed a Civil Case 1853-J with
the RTC of Pasig, Branch 160, praying that his marriage to petitioner be
declared null and void. He alleged that they had no marriage license when
they got married. He also averred that at the time he married petitioner, he
was still married to Anna Maria. He stated that at the time he married
petitioner the decree of nullity of his marriage to Anna Maria had not been
issued. The decree of nullity of his marriage to Anna Maria was rendered
only on August 4, 1980, while his civil marriage to petitioner took place on
April 4, 1979.
Persons/Ass. No 7
Petitioner, in defending her marriage to private respondent, pointed out
that his claim that their marriage was contracted without a valid license is
untrue. She submitted their Marriage License No. 5739990 issued at
Rosario, Cavite on April 3, 1979, as Exh. 11, 12 and 12-A. He did not
question this document when it was submitted in evidence.Petitioner also
submitted the decision of the Juvenile and Domestic Relations Court of
Quezon City dated August 4, 1980, which declared null and void his civil
marriage to Anna Maria Regina Villanueva celebrated on March 29, 1977,
and his church marriage to said Anna Maria on August 27, 1977. These
documents were submitted as evidence during trial and, according to
petitioner, are therefore deemed sufficient proof of the facts therein. The
fact that the civil marriage of private respondent and petitioner took place
on April 4, 1979, before the judgment declaring his prior marriage as null
and void is undisputed. It also appears indisputable that private respondent
and petitioner had a church wedding ceremony on April 4, 1982.[1]
The Pasig RTC sustained private respondents civil suit and declared
his marriage to herein petitioner null and void ab initio in its decision dated
November 4, 1991. Both parties appealed to respondent Court of
Appeals. On July 24, 1996, the appellate court affirmed the trial courts
decision. It ruled that a judicial declaration of nullity of the first marriage (to
Anna Maria) must first be secured before a subsequent marriage could be
validly contracted. Said the appellate court:
We can accept, without difficulty, the doctrine cited by defendants counsel
that no judicial decree is necessary to establish the invalidity of void
marriages. It does not say, however, that a second marriage may proceed
even without a judicial decree. While it is true that if a marriage is null and
void, ab initio, there is in fact no subsisting marriage, we are unwilling to rule
that the matter of whether a marriage is valid or not is for each married
spouse to determine for himself for this would be the consequence of
allowing a spouse to proceed to a second marriage even before a
competent court issues a judicial decree of nullity of his first marriage. The
results would be disquieting, to say the least, and could not have been the
intendment of even the now-repealed provisions of the Civil Code on
marriage.
xxx
WHEREFORE, upon the foregoing ratiocination, We modify the appealed
Decision in this wise:
1. The marriage contracted by plaintiff-appellant [herein private
respondent] Eduardo M. Reyes and defendant-appellant
23 | P a g e

[herein petitioner] Ofelia P. Ty is declared null and void ab
initio;
2. Plaintiff-appellant Eduardo M. Reyes is ordered to give monthly
support in the amount of P15,000.00 to his children Faye
Eloise Reyes and Rachel Anne Reyes from November 4,
1991; and
3. Cost against plaintiff-appellant Eduardo M. Reyes.
SO ORDERED.[2]
Petitioners motion for reconsideration was denied. Hence, this instant
petition asserting that the Court of Appeals erred:
I.
BOTH IN THE DECISION AND THE RESOLUTION, IN REQUIRING FOR
THE VALIDITY OF PETITIONERS MARRIAGE TO RESPONDENT, A
JUDICIAL DECREE NOT REQUIRED BY LAW.
II
IN THE RESOLUTION, IN APPLYING THE RULING IN DOMINGO VS.
COURT OF APPEALS.
III
IN BOTH THE DECISION AND RESOLUTION IN NOT CONSIDERING
THE CIVIL EFFECTS OF THE RELIGIOUS RATIFICATION WHICH USED
THE SAME MARRIAGE LICENSE.
IV
IN THE DECISION NOT GRANTING MORAL AND EXEMPLARY
DAMAGES TO THE DEFENDANT-APPELLANT.
The principal issue in this case is whether the decree of nullity of the
first marriage is required before a subsequent marriage can be entered into
validly? To resolve this question, we shall go over applicable laws and
pertinent cases to shed light on the assigned errors, particularly the first and
the second which we shall discuss jointly.
In sustaining the trial court, the Court of Appeals declared the marriage
of petitioner to private respondent null and void for lack of a prior judicial
Persons/Ass. No 7
decree of nullity of the marriage between private respondent and
Villanueva. The appellate court rejected petitioners claim that People v.
Mendoza[3] and People v. Aragon[4] are applicable in this case.For these
cases held that where a marriage is void from its performance, no judicial
decree is necessary to establish its invalidity. But the appellate court said
these cases, decided before the enactment of the Family Code (E.O. No.
209 as amended by E.O No. 227), no longer control. A binding decree is
now needed and must be read into the provisions of law previously
obtaining.[5]
In refusing to consider petitioners appeal favorably, the appellate court
also said:
Terre v. Attorney Terre, Adm. Case No. 2349, 3 July 1992 is mandatory
precedent for this case. Although decided by the High Court in 1992, the
facts situate it within the regime of the now-repealed provisions of the Civil
Code, as in the instant case.
xxx
For purposes of determining whether a person is legally free to contract a
second marriage, a judicial declaration that the first marriage was null and
void ab initio is essential. . . .[6]
At the outset, we must note that private respondents first and second
marriages contracted in 1977 and 1979, respectively, are governed by the
provisions of the Civil Code. The present case differs significantly from the
recent cases of Bobis v. Bobis[7] and Mercado v. Tan,[8] both involving
a criminal case for bigamy where the bigamous marriage was contracted
during the effectivity of the Family Code,[9] under which a judicial declaration
of nullity of marriage is clearly required.
Pertinent to the present controversy, Article 83 of the Civil Code
provides that:
Art. 83. Any marriage subsequently contracted by any person during the
lifetime of the first spouse of such person with any person other than such
first spouse shall be illegal and void from its performance, unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven consecutive years at the
time of the second marriage without the spouse present having news of the
absentee being alive, or if the absentee, though he has been absent for less
than seven years, is generally considered as dead and before any person
24 | P a g e

believed to be so by the spouse present at the time of contracting such
subsequent marriage, or if the absentee is presumed dead according to
articles 390 and 391. The marriage so contracted shall be valid in any of the
three cases until declared null and void by a competent court.
As to whether a judicial declaration of nullity of a void marriage is
necessary, the Civil Code contains no express provision to that
effect. Jurisprudence on the matter, however, appears to be conflicting.
Originally, in People v. Mendoza,[10] and People v. Aragon,[11] this
Court held that no judicial decree is necessary to establish the nullity of a
void marriage. Both cases involved the same factual milieu. Accused
contracted a second marriage during the subsistence of his first
marriage. After the death of his first wife, accused contracted a third
marriage during the subsistence of the second marriage. The second wife
initiated a complaint for bigamy. The Court acquitted accused on the ground
that the second marriage is void, having been contracted during the
existence of the first marriage. There is no need for a judicial declaration
that said second marriage is void. Since the second marriage is void, and
the first one terminated by the death of his wife, there are no two subsisting
valid marriages. Hence, there can be no bigamy. Justice Alex Reyes
dissented in both cases, saying that it is not for the spouses but the court to
judge whether a marriage is void or not.
In Gomez v. Lipana,[12] and Consuegra v. Consuegra,[13] however, we
recognized the right of the second wife who entered into the marriage in
good faith, to share in their acquired estate and in proceeds of the retirement
insurance of the husband. The Court observed that although the second
marriage can be presumed to be void ab initio as it was celebrated while
the first marriage was still subsisting, still there was a need for judicial
declaration of such nullity (of the second marriage). And since the death of
the husband supervened before such declaration, we upheld the right of the
second wife to share in the estate they acquired, on grounds of justice and
equity.[14]
But in Odayat v. Amante (1977),[15] the Court adverted
to Aragon and Mendoza as precedents. We exonerated a clerk of court of
the charge of immorality on the ground that his marriage to Filomena Abella
in October of 1948 was void, since she was already previously married to
one Eliseo Portales in February of the same year. The Court held that no
judicial decree is necessary to establish the invalidity of void
marriages. This ruling was affirmed in Tolentino v. Paras.[16]
Yet again in Wiegel v. Sempio-Diy (1986),[17] the Court held that there
is a need for a judicial declaration of nullity of a void marriage. In Wiegel,
Lilia married Maxion in 1972.In 1978, she married another man,
Wiegel. Wiegel filed a petition with the Juvenile Domestic Relations Court
Persons/Ass. No 7
to declare his marriage to Lilia as void on the ground of her previous valid
marriage. The Court, expressly relying on Consuegra, concluded that:[18]
There is likewise no need of introducing evidence about the existing
prior marriage of her first husband at the time they married each other, for
then such a marriage though void still needs according to this Court a
judicial declaration (citing Consuegra) of such fact and for all legal intents
and purposes she would still be regarded as a married woman at the time
she contracted her marriage with respondent Karl Heinz Wiegel;
accordingly, the marriage of petitioner and respondent would be regarded
VOID under the law. (Emphasis supplied).
In Yap v. Court of Appeals,[19] however, the Court found the second
marriage void without need of judicial declaration, thus reverting to
the Odayat, Mendoza and Aragonrulings.
At any rate, the confusion under the Civil Code was put to rest under
the Family Code. Our rulings in Gomez, Consuegra, and Wiegel were
eventually embodied in Article 40 of the Family Code.[20] Article 40 of said
Code expressly required a judicial declaration of nullity of marriage
Art. 40. The absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring
such previous marriage void.
In Terre v. Terre (1992)[21] the Court, applying Gomez,
Consuegra and Wiegel, categorically stated that a judicial declaration of
nullity of a void marriage is necessary. Thus, we disbarred a lawyer for
contracting a bigamous marriage during the subsistence of his first
marriage. He claimed that his first marriage in 1977 was void since his first
wife was already married in 1968. We held that Atty. Terre should have
known that the prevailing case law is that for purposes of determining
whether a person is legally free to contract a second marriage, a judicial
declaration that the first marriage was null and void ab initio is essential.
The Court applied this ruling in subsequent cases. In Domingo v. Court
of Appeals (1993),[22] the Court held:
Came the Family Code which settled once and for all the conflicting
jurisprudence on the matter. A declaration of absolute nullity of marriage is
now explicitly required either as a cause of action or a ground for
defense. (Art. 39 of the Family Code). Where the absolute nullity of a
previous marriage is sought to be invoked for purposes of contracting a
second marriage, the sole basis acceptable in law for said projected
marriage to be free from legal infirmity is a final judgment declaring the
25 | P a g e

previous marriage void. (Family Code, Art. 40; See also arts. 11, 13, 42, 44,
48, 50, 52, 54, 86, 99, 147, 148).[23]
However, a recent case applied the old rule because of the peculiar
circumstances of the case. In Apiag v. Cantero, (1997)[24] the first wife
charged a municipal trial judge of immorality for entering into a second
marriage. The judge claimed that his first marriage was void since he was
merely forced into marrying his first wife whom he got pregnant.On the issue
of nullity of the first marriage, we
applied Odayat, Mendoza and Aragon. We held that since the second
marriage took place and all the children thereunder were born before the
promulgation of Wiegel and the effectivity of the Family Code, there is no
need for a judicial declaration of nullity of the first marriage pursuant to
prevailing jurisprudence at that time.
Similarly, in the present case, the second marriage of private
respondent was entered into in 1979, before Wiegel. At that time, the
prevailing rule was found in Odayat, Mendoza and Aragon. The first
marriage of private respondent being void for lack of license and consent,
there was no need for judicial declaration of its nullity before he could
contract a second marriage. In this case, therefore, we conclude that private
respondents second marriage to petitioner is valid.
Moreover, we find that the provisions of the Family Code cannot be
retroactively applied to the present case, for to do so would prejudice the
vested rights of petitioner and of her children. As held in Jison v. Court of
Appeals,[25] the Family Code has retroactive effect unless there be
impairment of vested rights. In the present case, that impairment of vested
rights of petitioner and the children is patent. Additionally, we are not quite
prepared to give assent to the appellate courts finding that despite private
respondents deceit and perfidy in contracting marriage with petitioner, he
could benefit from her silence on the issue. Thus, coming now to the civil
effects of the church ceremony wherein petitioner married private
respondent using the marriage license used three years earlier in the civil
ceremony, we find that petitioner now has raised this matter
properly. Earlier petitioner claimed as untruthful private respondents
allegation that he wed petitioner but they lacked a marriage license. Indeed
we find there was a marriage license, though it was the same license issued
on April 3, 1979 and used in both the civil and the church rites. Obviously,
the church ceremony was confirmatory of their civil marriage. As petitioner
contends, the appellate court erred when it refused to recognize the validity
and salutary effects of said canonical marriage on a technicality, i.e. that
petitioner had failed to raise this matter as affirmative defense during
trial. She argues that such failure does not prevent the appellate court
from giving her defense due consideration and weight. She adds that the
interest of the State in protecting the inviolability of marriage, as a legal and
Persons/Ass. No 7
social institution, outweighs such technicality. In our view, petitioner and
private respondent had complied with all the essential and formal requisites
for a valid marriage, including the requirement of a valid license in the first
of the two ceremonies.That this license was used legally in the celebration
of the civil ceremony does not detract from the ceremonial use thereof in
the church wedding of the same parties to the marriage, for we hold that the
latter rites served not only to ratify but also to fortify the first. The appellate
court might have its reasons for brushing aside this possible defense of the
defendant below which undoubtedly could have tendered a valid issue, but
which was not timely interposed by her before the trial court. But we are
now persuaded we cannot play blind to the absurdity, if not inequity, of
letting the wrongdoer profit from what the CA calls his own deceit and
perfidy.
On the matter of petitioners counterclaim for damages and attorneys
fees. Although the appellate court admitted that they found private
respondent acted duplicitously and craftily in marrying petitioner, it did not
award moral damages because the latter did not adduce evidence to
support her claim.[26]
Like the lower courts, we are also of the view that no damages should
be awarded in the present case, but for another reason. Petitioner wants
her marriage to private respondent held valid and subsisting. She is suing
to maintain her status as legitimate wife. In the same breath, she asks for
damages from her husband for filing a baseless complaint for annulment of
their marriage which caused her mental anguish, anxiety, besmirched
reputation, social humiliation and alienation from her parents. Should we
grant her prayer, we would have a situation where the husband pays the
wife damages from conjugal or common funds. To do so, would make the
application of the law absurd.Logic, if not common sense, militates against
such incongruity. Moreover, our laws do not comprehend an action for
damages between husband and wife merely because of breach of a marital
obligation.[27] There are other remedies.[28]
WHEREFORE, the petition is GRANTED. The assailed Decision of the
Court of Appeals dated July 24, 1996 and its Resolution dated November
7, 1996, are reversed partially, so that the marriage of petitioner Ofelia P.
Ty and private respondent Edgardo M. Reyes is hereby DECLARED VALID
AND SUBSISTING; and the award of the amount of P15,000.00 is
RATIFIED and MAINTAINED as monthly support to their two children, Faye
Eloise Reyes and Rachel Anne Reyes, for as long as they are of minor age
or otherwise legally entitled thereto. Costs against private respondent.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.
26 | P a g e

EN BANC
G.R. No. L-26270 October 30, 1969
BONIFACIA MATEO, ET AL., petitioners,
vs.
GERVASIO LAGUA, ET AL., respondents.
Pedro P. Tuason for petitioners.
Isaiah Asuncion for respondents.
REYES, J.B.L., J.:
This is a petition for review of the decision of the Court of Appeals (In CA-
G.R. Nos. 30064-R and 30065-R), raising as only issue the correctness of
the appellate court's reduction of a donation propter nuptias, for being
inofficious.
The established facts of this case are as follows:
Cipriano Lagua was the original registered owner of 3 parcels of land
situated in Asingan, Pangasinan, referred to as Lot No. 998, with an area of
11,080 sq.m., more or less and covered by O.C.T. No. 362; Lot No. 6541,
with an area of 808 sq.m., more or less, covered by O.C.T. No. 6618; and
Lot No. 5106, with an area of 3,303 sq.m., covered by O.C.T. No. 8137.
Sometime in 1917, Lagua and his wife Alejandra Dumlao, in a public
instrument, donated Lots 998 and 6541 to their son Alejandro Lagua, in
consideration of the latter's marriage to Bonifacia Mateo. The marriage was
celebrated on 15 May 1917, and thereafter, the couple took possession of
the properties, but the Certificates of Title remained in the donor's name.
In 1923, the son, Alejandro, died. His widow, Bonifacia Mateo, and her
infant daughter lived with her father-in-law, Cipriano Lagua, who then
undertook the farming of the donated lots. It seems that at the start, Cipriano
Lagua was giving to Bonifacia the owner's share of the harvest from the
land. In 1926, however, Cipriano refused to deliver the said share, thus
prompting Bonifacia to resort to the Justice of the Peace Court of Asingan,
Pangasinan, from where she obtained a judgment awarding to her
possession of the two lots plus damages.
On 31 July 1941, Cipriano Lagua, executed a deed of sale of the same two
parcels of land in favor of his younger son, Gervasio. This sale
notwithstanding, Bonifacia Mateo was continuously given the owner's share
Persons/Ass. No 7
of the harvest until 1956, when it was altogether stopped. It was only then
that Bonifacia Mateo learned of the sale of the lots to her brother-in-law,
who had the sale in his favor registered only on 22 September 1955. As a
consequence, TCT Nos. 19152 and 19153 of the Register of Deeds of
Pangasinan were issued to Gervasio.
Bonifacia Mateo and her daughter, Anatalia, assisted by her husband, Luis
Alcantara, went to the Court of First Instance of Pangasinan (Civil Case No.
T-339), seeking annulment of the deed of sale in favor of Gervasio Lagua
and for recovery of possession of the properties. On 3 January 1957,
judgment was rendered in the case —
... declaring the sale executed by Cipriano Lagua in favor of the
other defendants, Gervasio Lagua and Sotera Casimero, as null
and void and non-existent; ordering the Register of Deeds for the
Province of Pangasinan, to cancel Transfer Certificates of Title Nos.
19152 and 19153; condemning the defendants to pay jointly and
severally to the plaintiffs the sum of P200.00; ordering the
defendants Gervasio Lagua and Sotera Lagua to vacate and deliver
the possession over the two parcels of land to the plaintiffs, and to
pay the costs of this suit.
The decision became final, and Bonifacia Mateo, and her daughter, Anatalia
Lagua, were installed in possession of the land.
On 18 August 1957, the spouses Gervasio Lagua and Sotera Casimero
commenced in the Justice of the Peace Court of Asingan, Pangasinan, an
action against Bonifacia Mateo and her daughter for reimbursement of the
improvements allegedly made by them on Lots 998 and 6541, plus
damages. Dismissed by the Justice of the Peace Court for being barred by
the judgment in Civil Case No. T-339, therein plaintiffs appealed to the Court
of First Instance of Pangasinan where the case was docketed as Civil Case
No. T-433. At about the same time, another case was filed, this time by
Gervasio Lagua and Cipriano Lagua, for annulment of the donation of the
two lots, insofar as one-half portion thereof was concerned (civil Case No.
T-442). It was their claim that in donating the two lots, which allegedly were
all that plaintiff Cipriano Lagua owned, said plaintiff not only neglected
leaving something for his own support but also prejudiced the legitime of his
forced heir, plaintiff Gervasio Lagua.
Being intimately related, the two cases were heard jointly. On November
12, 1958, while the cases were pending final resolution, plaintiff Cipriano
Lagua died. On 23 December 1960, the court rendered a single decision
dismissing Civil Case No. T-433 for lack of cause of action, plaintiffs
27 | P a g e

spouses Gervasio Lagua and Sotera Casimero having been declared
possessors in bad faith in Civil Case No. T-339 and, therefore, not entitled
to any reimbursement of the expenses and improvements put up by them
on the land. The other suit, Civil Case No. T-442, was, likewise, dismissed
on the ground of prescription, the action to annul the donation having been
brought only in 1958, or after the lapse of 41 years. Defendants'
counterclaims were similarly dismissed although they were awarded
attorneys' fees in the sum of P150.00.
Plaintiffs appealed the decision to the Court of Appeals (CA-G.R. Nos.
30064 and 30065-R). Said tribunal, on 18 March 1966, affirmed the ruling
of the trial court in Civil Case No. T-433 denying plaintiffs' claim for
reimbursement of the improvements said to have been made on the land.
In regard to the annulment case (C.F.I. No. T-442), however, the Court of
Appeals held that the donation to Alejandro Lagua of the 2 lots with a
combined area of 11,888 square meters execeeded by 494.75 square
meters his (Alejandro's) legitime and the disposable portion that Cipriano
Lagua could have freely given by will, and, to the same extent prejudiced
the legitime of Cipriano's other heir, Gervasio Lagua. The donation was thus
declared inofficious, and defendants-appellees were ordered to reconvey to
plaintiff Gervasio Lagua a portion of 494.15 square meters to be taken from
any convenient part of the lots. The award of attorneys' fees to the
defendants was also eliminated for lack of proper basis.
Bonifacia Mateo, et al., then resorted to this Court, assailing the decision of
the Court of Appeals insofar as it ordered them to reconvey a portion of the
lots to herein respondent Gervasio Lagua. It is petitioners' contention that
(1) the validity of the donation proper nuptias having been finally determined
in Civil Case No. T-339, any question in derogation of said validity is already
barred; (2) that the action to annul the donation, filed in 1958, or 41 years
after its execution, is abated by prescription; (3) that a donation proper
nuptias is revocable only for any of the grounds enumerated in Article 132
of the new Civil Code, and inofficiousness is not one of thorn; and (4) that
in determining the legitime of the Lagua brothers in the hereditary estate of
Cipriano Lagua, the Court of Appeals should have applied the provisions of
the Civil Code of 1889, and not Article 888 of the new Civil Code.
Petitioners' first two assigned errors, it may be stated, are non-contentious
issues that have no bearing in the actual controversy in this case. All of
them refer to the validity of the donation — a matter which was definitively
settled in Civil Case No. T-339 and which, precisely, was declared by the
Court of Appeals to be "beyond the realm of judicial inquiry." In reality, the
only question this case presents is whether or not the Court of Appeals
acted correctly in ordering the reduction of the donation for being inofficious
Persons/Ass. No 7
and in ordering herein petitioners to reconvey to respondent Gervasio
Lagua an unidentified 494.75 square-meter portion of the donated lots.
We are in accord with the Court of Appeals that Civil Case No. 442 is not
one exclusively for annulment or revocation of the entire donation, but of
merely that portion thereof allegedly trenching on the legitime of respondent
Gervasio Lagua;1 that the cause of action to enforce Gervasio's legitime,
having accrued only upon the death of his father on 12 November 1958, the
dispute has to be governed by the pertinent provisions of the new Civil
Code; and that a donation proper nuptias property may be reduced for
being inofficious. Contrary to the views of appellants (petitioners),
donations proper nuptias (by reason of marriage) are without onerous
consideration, the marriage being merely the occasion or motive for the
donation, not its causa. Being liberalities, they remain subject to reduction
for inofficiousness upon the donor's death, if they should infringe the
legitime of a forced heir.2
It is to be noted, however, that in rendering the judgment under review, the
Court of Appeals acted on several unsupported assumptions: that the three
(3) lots mentioned in the decision (Nos. 998, 5106 and 6541) were
the only properties composing the net hereditary estate of the deceased
Cipriano Lagua; that Alejandro Lagua and Gervasio Lagua were his only
legal heirs; that the deceased left no unpaid debts, charges, taxes, etc., for
which the estate would be answerable.3 In the computation of the heirs'
legitime, the Court of Appeals also considered only the area, not the value,
of the properties.
The infirmity in the above course of action lies in the fact that in its Article
908 the new Civil Code specifically provides as follows:
ART. 908. To determine the legitime, the value of the property left
at the death of the testator shall be considered, deducting all debts,
and charges, which shall not include those imposed in the will.
To the net value of the hereditary estate, shall be added the value
of all donations by the testator that are subject to collation, at the
time he made them.
In other words, before any conclusion about the legal share due to a
compulsory heir may be reached, it is necessary that certain steps be taken
first. The net estate of the decedent must be ascertained, by deducting an
payable obligations and charges from the value of the property owned by
the deceased at the time of his death; then, all donations subject to collation
would be added to it. With the partible estate thus determined, the legitimes
28 | P a g e
 Persons/Ass. No 7

of the compulsory heir or heirs can be established; and only thereafter can
it be ascertained whether or not a donation had prejudiced the legitimes.
Certainly, in order that a donation may be reduced for being inofficious,
there must be proof that the value of the donated property exceeds that of
the disposable free portion plus the donee's share as legitime in the
properties of the donor.4 In the present case, it can hardly be said that, with
the evidence then before the court, it was in any position to rule on the
inofficiousness of the donation involved here, and to order its reduction and
reconveyance of the deducted portion to the respondents.

FOR THE FOREGOING CONSIDERATIONS, the decision of the Court of

Appeals, insofar as Civil Case No. 442 of the court a quo is concerned, is
hereby set aside and the trial court's order of dismissal sustained, without
prejudice to the parties' litigating the issue of inofficiousness in a proper
proceeding, giving due notice to all persons interested in the estate of the
late Cipriano Lagua. Without costs.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Fernando,

Teehankee and Barredo, JJ., concur.

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EN BANC
G.R. No. L-12707 August 10, 1918
MRS. HENRY E. HARDING, and her husband, plaintiffs-appellees,
vs.
COMMERCIAL UNION ASSURANCE COMPANY, defendant-appellant.
Lawrence & Ross for appellant.
Gibbs, McDonough & Johnson for appellees.
FISHER, J.:
This was an action by plaintiffs to recover from defendant the sum of P3,000
and interest, alleged to be due under the terms of a policy of insurance. The
trial court gave plaintiffs judgment for the amount demanded, with interest
and costs, and from that decision the defendant appeals.
The court below stated the issues made by the pleadings in this case, and
its finding of fact, as follows:
It is alleged by plaintiffs and admitted by defendant that plaintiffs
are husband and wife and residents of the city of Manila; that the
defendant is a foreign corporation organized and existing under and
by virtue of the laws of Great Britain and duly registered in the
Philippine Islands, and Smith, Bell & Co. (limited), a corporation
organized and existing under the laws of the Philippine Islands, with
its principal domicile in the city of Manila, is the agent in the
Philippine Islands of said defendant.
The plaintiffs alleged that on February 16, 1916, the plaintiff Mrs.
Henry E. Harding was the owner of a Studebaker automobile,
registered number 2063, in the city of Manila; that on said date; in
consideration of the payment to the defendant of the premium of
P150, by said plaintiff, Mrs. Henry E. Harding, with the consent of
her husband, the defendant by its duly authorized agent, Smith, Bell
& Company (limited), made its policy of insurance in writing upon
said automobile was set forth in said policy to be P3,000 that the
value of said automobile was set forth in said policy (Exhibit A) to
be P3,000; that on March 24, 1916, said automobile was totally
destroyed by fire; that the loss thereby to plaintiffs was the sum of
P3,000; that thereafter, within the period mentioned in the said
policy of insurance, the plaintiff, Mrs. Henry E. Harding, furnished
the defendant the proofs of her said loss and interest, and otherwise
Persons/Ass. No 7
performed all the conditions of said policy on her part, and that the
defendant has not paid said loss nor any part thereof, although due
demand was made upon defendant therefor.
The defendant, by its answer, admitted the allegations of the
residence and status of the parties and denied all the other
allegation of the said complaint, and for a separate and affirmative
defense alleged (1) that on February 17, 1916, at the city of Manila,
P.I. the defendant upon request of plaintiff, Mrs. Henry E. Harding,
issued to the said plaintiff the policy of insurance on an automobile
alleged by the said plaintiff to be her property; that the said request
for the issuance of said policy of insurance was made by means of
a proposal in writing signed and delivered by said plaintiff to the
defendant, guaranteeing the truth of the statements contained
therein which said proposal is referred to in the said policy of
insurance made a part thereof; (2) that certain of the statements
and representations contained in said proposal and warranted by
said plaintiff to be true, to wit: (a) the price paid by the proposer for
the said automobile; (b) the value of said automobile at the time of
the execution and delivery of the said proposal and (c) the
ownership of said automobile, were false and known to be false by
the said plaintiff at the time of signing and delivering the said
proposal and were made for the purpose of misleading and
deceiving the defendant, and inducing the defendant, relying upon
the warranties, statements, and representations contained in the
said proposal and believing the same to be true, issued the said
policy of insurance.
The defendant prays that judgment be entered declaring the said
policy of insurance to be null and void, and that plaintiffs take
nothing by this action; and for such further relief as to the court may
seem just and equitable.
The evidence in this case shows that some time in the year 1913
Levy Hermanos, the Manila agents for the Studebaker automobile,
sold the automobile No. 2063 to John Canson for P3,200 (testimony
of Mr. Diehl); that under date of October 14, 1914, John Canson
sold the said automobile to Henry Harding for the sum of P1,500
(Exhibit 2); that under date of November 19, 1914, the said Henry
Harding sold the said automobile No. 2063 to J. Brannigan, of Los
Baños, Province of Laguna, P.I., for the sum of P2,000 (Exhibit 3);
that under date of December 20, 1915, J. C. Graham of Los Baños,
Province of Laguna, P.I., sold the said automobile No. 2063 to
Henry Harding of the city of Manila for the sum of P2,800 (Exhibit 4
and testimony of J. C. Graham); that on or about January 1, 1916,
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the said Henry Harding gave the said automobile to his wife; Mrs.
Henry E. Harding, one of the plaintiffs, as a present; that said
automobile was repaired and repainted at the Luneta Garage at a
cost of some P900 (testimony of Mr. Server); that while the said
automobile was at the Luneta Garage; the said Luneta Garage,
acting as agent for Smith, Bell & Company, (limited), solicited of the
plaintiff Mrs. Harding the insurance of said automobile by the
defendant Company (testimony of Mrs. Henry Harding and Mr.
Server); that a proposal was filled out by the said agent and signed
by the plaintiff Mrs. Henry E. Harding, and in said proposal under
the heading "Price paid by proposer," is the amount of "3,500" and
under another heading "Present value" is the amount of "3,000"
(Exhibit 1).
The evidence tends to show that after the said proposal was made
a representative of the Manila agent of defendant went to the
Luneta Garage and examined said automobile No. 2063 and Mr.
Server, the General Manager of the Luneta Garage, an
experienced automobile mechanic, testified that at the time this
automobile was insured it was worth about P3,000, and the
defendant, by and through its said agent Smith, Bell & Company
(limited), thereafter issued a policy of insurance upon proposal in
which policy the said automobile was described as of the "present
value" of P3,000 and the said defendant charged the said plaintiff
Mrs. Henry E. Harding as premium on said policy the sum of P150,
or 5 per cent of the then estimated value of P3,000. (Exhibit A.)
The "Schedule" in said policy of insurance describes the automobile
here in question, and provides in part of follows:
"Now it is hereby agreed as follows:
"That during the period above set forth and during any
period for which the company may agree to renew this
policy the company will subject to the exception and
conditions contained herein or endorsed hereon indemnify
the insured against loss of or damage to any motor car
described in the schedule hereto (including accessories) by
whatever cause such loss or damage may be occasioned
and will further indemnify the insured up to the value of the
car or P3,000 whichever is the greater against any claim at
common law made by any person (not being a person in
the said motor car nor in the insured's service) for loss of
life or for accidental bodily injury or damage to property
Persons/Ass. No 7
caused by the said motor car including law costs payable
in connection with such claim when incurred with the
consent of the company."
The evidence further shows that on March 24, 1916, the said
automobile was totally destroyed by fire, and that the iron and steel
portions of said automobile which did not burn were taken into the
possession of the defendant by and through its agent Smith, Bell &
Company (limited), and sold by it for a small sum, which had never
been tendered to the plaintiff prior to the trial of this case, but in
open court during the trial the sum of P10 as the proceeds of such
sale was tendered to plaintiff and refused.
Upon the facts so found, which we hold are supported by the evidence, the
trial judge decided that there was no proof of fraud on the part of plaintiff in
her statement of the value of the automobile, or with respect to its
ownership; that she had an insurable interest therein; and that defendant,
having agreed to the estimated value, P3,000, and having insured the
automobile for that amount, upon the basis of which the premium was paid,
is bound by it and must pay the loss in accordance with the stipulated
insured value. The assignments of error made on behalf of appellant put in
issue the correctness of those conclusions of law, and some others of minor
importance relating to the exclusion of evidence. Disposing of the minor
objections first, as we have reached the conclusion that the trial court was
right in holding that the defendant is bound by the estimated value of the
automobile upon which policy was issued, and that the plaintiff was not
guilty of fraud in regard thereto, the exclusion of the testimony of the witness
Diehl is without importance. It merely tended to show the alleged actual
value of the automobile, and in the view we take of the case such evidence
was irrelevant.
Appellant contends that Mrs. Harding was not the owner of the automobile
at the time of the issuance of the policy, and, therefore, had no insurable
interest in it. The court below found that the automobile was given to plaintiff
by her husband shortly after the issuance of the policy here in question.
Appellant does not dispute the correctness of this finding, but contends that
the gift was void, citing article 1334 of the Civil Code which provides that
"All gifts between spouses during the marriage shall be void. Moderate gifts
which the spouses bestow on each other on festive days of the family are
not included in this rule."
We are of the opinion that this contention is without merit. In the case of
Cook vs. McMicking 27 Phil. Rep., 10), this court said:
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It is claimed by the appellants that the so-called transfer from
plaintiff's husband to her was completely void under article 1458 of
the Civil Code and that, therefore, the property still remains the
property of Edward Cook and subject to levy under execution
against him.
In our opinion the position taken by appellants is untenable. They
are not in a position to challenge the validity of the transfer, if it may
be called such. They bore absolutely no relation to the parties to
the transfer at the time it occurred and had no rights or interests
inchoate, present, remote, or otherwise, in the property in question
at the time the transfer occurred. Although certain transfers from
husband to wife or from wife to husband are prohibited in the article
referred to, such prohibition can be taken advantage of only by
persons who bear such a relation to the parties making the transfer
or to the property itself that such transfer interferes with their rights
or interests. Unless such a relationship appears the transfer cannot
be attacked.
Even assuming that defendant might have invoked article 1334 as a
defense, the burden would be upon it to show that the gift in question does
not fall within the exception therein established. We cannot say, as a matter
of law, that the gift of an automobile by a husband to his wife is not a
moderate one. Whether it is or is not would depend upon the circumstances
of the parties, as to which nothing is disclosed by the record.
Defendant contends that the statement regarding the cost of the automobile
was a warranty, that the statement was false, and that, therefore, the policy
never attached to the risk. We are of the opinion that it has not been shown
by the evidence that the statement was false — on the contrary we believe
that it shows that the automobile had in fact cost more than the amount
mentioned. The court below found, and the evidence shows, that the
automobile was bought by plaintiff's husband a few weeks before the
issuance of the policy in question for the sum of P2,800, and that between
that time and the issuance of the policy some P900 was spent upon it in
repairs and repainting. The witness Server, an expert automobile mechanic,
testified that the automobile was practically as good as new at the time the
insurance was effected. The form of proposal upon which the policy was
issued does not call for a statement regarding the value of the automobile
at the time of its acquisition by the applicant for the insurance, but merely a
statement of its cost. The amount stated was less than the actual outlay
which the automobile represented to Mr. Harding, including repairs, when
the insurance policy was issued. It is true that the printed form calls for a
statement of the "price paid by the proposer," but we are of the opinion that
it would be unfair to hold the policy void simply because the outlay
Persons/Ass. No 7
represented by the automobile was made by the plaintiff's husband and not
by his wife, to whom he had given the automobile. It cannot be assumed
that defendant should not have issued the policy unless it were strictly true
that the price representing the cost of the machine had been paid by the
insured and by no other person — that it would no event insure an
automobile acquired by gift, inheritance, exchange, or any other title not
requiring the owner to make a specific cash outlay for its acquisition.
Furthermore, the court below found and the evidence shows, without
dispute, that the proposal upon which the policy in question was issued was
made out by defendant's agent by whom the insurance was solicited, and
that appellee simply signed the same. It also appears that an examiner
employed by the defendant made an inspection of the automobile before
the acceptance of the risk, and that the sum after this examination. The trial
court found that Mrs. Harding, in fixing the value of the automobile at
P3,000, acted upon information given her by her husband and by Mr.
Server, the manager of the Luneta Garage. The Luneta Garage, it will be
remembered, was the agent of the defendant corporation in the solicitation
of the insurance. Mrs. Harding did not state of her own knowledge that the
automobile originally cost P3,000, or that its value at the time of the
insurance was P3,000. She merely repeated the information which had
been given her by her husband, and at the same time disclosed to
defendant's agent the source of her information. There is no evidence to
sustain the contention that this communication was made in bad faith. It
appears that the statements in the proposal as to the price paid for the
automobile and as to its value were written by Mr. Quimby who solicited the
insurance on behalf of defendant, in his capacity as an employee of the
Luneta Garage, and wrote out the proposal for Mrs. Harding to sign. Under
these circumstances, we do not think that the facts stated in the proposal
can be held as a warranty of the insured, even if it should have been shown
that they were incorrect in the absence of proof of willful misstatement.
Under such circumstance, the proposal is to be regarded as the act of the
insurer and not of the insured. This question was considered in the case of
the Union Insurance Company vs. Wilkinson (13 Wall., 222; 20 L. ed., 617),
in which the Supreme Court of the United States said:
This question has been decided differently by courts of the highest
respectability in cases precisely analogous to the present. It is not
to be denied that the application logically considered, is the work of
the assured, and if left to himself or to such assistance as he might
select, the person so selected would be his agent, and he alone
would be responsible. On the other hand, it is well-known, so well
that no court would be justified in shutting its eyes to it, that
insurance companies organized under the laws of one State, and
having in that State their principal business office, send these
32 | P a g e

agents all over the land, with directions to solicit and procure
applications for policies furnishing them with printed arguments in
favor of the value and necessity of life insurance, and of the special
advantages of the corporation which the agent represents. They
pay these agents large commissions on the premiums thus
obtained, and the policies are delivered at their hands to the
assured. The agents are stimulated by letters and instructions to
activity in procuring contracts, and the party who is in this manner
induced to take out a policy, rarely sees or knows anything about
the company or its officers by whom it is issued, but looks to and
relies upon the agent who has persuaded him to effect insurance
as the full and complete representative of the company, in all that
is said or done in making the contract. Has he not a right to so
regard him? It is quite true that the reports of judicial decisions are
filled with the efforts of these companies, by their counsel, to
establish the doctrine for the acts of these agents to the simple
receipt of the premium and delivery of the policy, the argument
being that, as to all other acts of the agent, he is the agent of the
assured. This proposition is not without support in some of the
earlier decision on the subject; and, at a time when insurance
companies waited for parties to come to them to seek assurance,
or to forward applications on their own motion, the doctrine had a
reasonable foundation to rest upon. But to apply such a doctrine, in
its full force, to the system of selling policies through agents, which
we have described, would be a snare and a delusion, leading, as it
has done in numerous instances, to the grossest frauds, of which
the insurance corporations receive the benefits, and the parties
supposing themselves insured are the victims. The tendency of the
modern decisions in this country is steadily in the opposite direction.
The powers of the agent are, prima facie, co-extensive with the
business intrusted to his care, and will not be narrowed by
limitations not communicated to the person with whom he deals.
(Bebee vs. Ins. Co., 25 Conn., 51; Lycoming Ins.
Co. vs. Schoolenberger, 44 Pa., 259; Beal vs. Ins. Co., 16 Wis.,
241; Davenport vs. Ins. Co., 17 Iowa, 276.) An insurance company,
establishing a local agency, must be held responsible to the parties
with whom they transact business, for the acts and declarations of
the agent, within the scope of his employment, as if they proceeded
from the principal. (Sav. Bk. vs. Ins. Co., 31 Conn., 517;
Hortwitz vs.Ins. Co., 40 Mo., 557; Ayres vs. Ins. Co., 17 Iowa, 176;
Howard Ins. Co. vs. Bruner, 23 Pa., 50.)
In the fifth edition of American Leading Cases, 917, after a full
consideration of the authorities, it is said:
Persons/Ass. No 7
"By the interested or officious zeal of the agents employed
by the insurance companies in the wish to outbid each
other and procure customers, they not unfrequently
mislead the insured, by a false or erroneous statement of
what the application should contain; or, taking the
preparation of it into their own hands, procure his signature
by an assurance that it is properly drawn, and will meet the
requirements of the policy. The better opinion seems to be
that, when this course is pursued, the description of the risk
should, though nominally proceeding from the insured, be
regarded as the act of the insurers." (Rowley vs. Empire
Ins. Co., 36 N.Y., 550.)
The modern decisions fully sustain this proposition, and they seem
to us founded on reason and justice, and meet our entire approval.
This principle does not admit oral testimony to vary or contradict
that which is in writing, but it goes upon the idea that the writing
offered in evidence was not the instrument of the party whose name
is signed to it; that it was procured under such circumstances by
the other side as estops that side from using it or relying on its
contents; not that it may be contradicted by oral testimony, but that
it may be shown by such testimony that it cannot be lawfully used
against the party whose name is signed to it. (See also Am. Life Ins.
Co. vs. Mahone, 21 Wallace, 152.)
The defendant, upon the information given by plaintiff, and after an
inspection of the automobile by its examiner, having agreed that it was
worth P3,000, is bound by this valuation in the absence of fraud on the part
of the insured. All statements of value are, of necessity, to a large extent
matters of opinion, and it would be outrageous to hold that the validity of all
valued policies must depend upon the absolute correctness of such
estimated value. As was said by the Supreme Court of the United States in
the case of the First National Bank vs. Hartford Fire Insurance Co. (5 Otto,
673; 24 L. ed., 563), at. p. 565 of the Lawyers Edition:
The ordinary test of the value of property is the price it will commend
in the market if offered for sale. But that test cannot, in the very
nature of the case, be applied at the time application is made for
insurance. Men may honestly differ about the value of property, or
as to what it will bring in the market; and such differences are often
very marked among those whose special business it is to buy and
sell property of all kinds. The assured could do no more than
estimate such value; and that, it seems, was all that he was required
to do in this case. His duty was to deal fairly with the Company in
making such estimate. The special finding shows that he
33 | P a g e
 Persons/Ass. No 7

discharged that duty and observed good faith. We shall not

presume that the Company, after requiring the assured in his
application to give the "estimated value," and then to covenant that
he had stated all material facts in regard to such value, so far as
known to him, and after carrying that covenant, by express words,
into the written contract, intended to abandon the theory upon which
it sought the contract, and make the absolute correctness of such
estimated value a condition precedent to any insurance whatever.
The application, with its covenant and stipulations, having been
made a part of the policy, that presumption cannot be indulged
without imputing to the Company a purpose, by studied intricacy or
an ingenious framing of the policy, to entrap the assured into
incurring obligations which, perhaps, he had no thought of
assuming.

Section 163 of the Insurance Law (Act No. 2427) provides that "the effect
of a valuation in a policy of fire insurance is the same as in a policy of marine
insurance."

By the terms of section 149 of the Act cited, the valuation in a policy of
marine insurance is conclusive if the insured had an insurable interest and
was not guilty of fraud.

We are, therefore, of the opinion and hold that plaintiff was the owner of the
automobile in question and had an insurable interest therein; that there was
no fraud on her part in procuring the insurance; that the valuation of the
automobile, for the purposes of the insurance, is binding upon the defendant
corporation, and that the judgment of the court below is, therefore, correct
and must be affirmed, with interest, the costs of this appeal to be paid by
the appellant. So ordered.

Arellano, C.J., Torres, Street, Malcolm and Avanceña, JJ., concur.

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