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DELA CRUZ v DELA CRUZ (1968) 22 SCRA 333 - SUPRA - Estrella is married to Severino dela Cruz and had

with six children. They are also engaged in various business ventures and owned parcels of land. Assets totaled more than a million pesos. - Wife filed a complaint praying for the separation of property, monthly support and payment of attorney fees and costs. - In 1949, she claims that she already suspected that Severino was sleeping around which was only confirmed by a note she found in his shirt in 1951. She confronted him about it and he promised her to forsake his mistress which he failed to do. - Since 1955, he never slept in conjugal dwelling, but only paid short visits. She contends that he abandoned her and their children to live in Manila with his mistress, Nenita Hernandez. And that after 1955 until the time of the trial, he had never visited the conjugal abode and when he was in Bacolod, she was denied communication with him. - defendant admitted that in 1957 , he started to live separately from his wife in order to teach his wife a lesson and to pass the nights in peace since she often quarreled with him. Defendant denied that he had a concubine and it was proven that he gave support of at least 1200 to 1500 per month to his family and he paid for his childrens education. Wife played mahjong which she did not refute. - witness testified that allowances of 1000 to 1500 were given monthly. - defendants answer to charges of mismanagement was that he applied his industry , time and effort to the business which increased its worth and he even managed to pay their debts to PNB. - RTC ordered separation and division of the conjugal assets (valued at P500,000), directing Severino to pay to Estrella P20,000 as attorneys fees, with legal interest form date of original complaint until fully paid plus costs. Also included P2000 per month alimony as pendent lite. ISSUES: 1. WON separation of husband from his wife constitutes abandonment in law that would justify the separation of conjugal partnership property - NO 2. WON the husbands failure and/or refusal to inform his wife of the state of their business is an abuse of his powers of administration of the CP as to warrant a division of matrimonial assets -NO HELD: 1) There was only mere physical separation and not real abandonment. Abandonment contemplated by the law must be of physical estrangement, moral and FINANCIAL desertion. Based on how abandonment was used in Art 178, in order for desertion of one spouse to constitute abandonment, there must be absolute cessation of marital relations and duties and rights with intention of perpetual separation. To

abandon is to forsake entirely. Emphasis is on its finality, hence it means giving up absolutely and with intent never again to resume or claim ones rights or interests. - Here, Severino did not seem to have the intention to leave his family permanently since he continued to give support despite his absence which thus negates any intent not to return and resume his marital duties and rights. There was evidence that he supported the family and that the family was not living in want. - Since separation in fact between spouses does not affect the CP except if the husband abandons his wife without just cause, (Art 178, CC) claims of the Estrella of concubinage on part of Severino must be regarded as efforts at bolstering her claim of abandonment which shall justify, under the law, a judicial separation of conjugal assets. There is no strong corroborated evidence that demonstrates the existence of illicit relations between Nenita and Severino. Neither has he been mismanaging funds since he actually increased the value of their assets by over a million pesos. 2) For abuse to exist, it is not enough that the husband perform acts prejudicial to his wife or commit acts injurious to the partnership. There must be an act willfully performed and with utter disregard of the partnership by the husband that would be prejudicial to the wife, evidenced by the repetition of deliberate acts and/or omissions. It is not condoning the husbands separation from his wife. Instead, is that there is an insufficiency or absence of cause of action. Remedies of Art 167 and 178 are aimed at protecting the CP and shield the wife from want. - Courts must exercise restraint since they are trying to preserve union of spouses; a judgment ordering a separation of assets where theres no real abandonment may eradicate the possibility of reconciliation. Alimony increased from P2000 to P3000. Attorneys fees must also be borne by defendant since he left the conjugal abode and has given cause for plaintiff to seek redress in courts.

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