G.R. No.

116607 April 10, 1996

EMILIO R. TUASON, petitioner,
vs.
COURT OF APPEALS and MARIA VICTORIA L. TUASON, respondents.

Jose F. Racela IV, private respondent's counsel. Private respondent likewise submitted documentary
evidence consisting of newspaper articles of her husband's relationship with other women, his
apprehension by the authorities for illegal possession of drugs; and copies of a prior a church
annulment decree. 2 The parties' marriage was clerically annulled by the Tribunal Metropolitanum
Matrimonial which was affirmed by the National Appellate Matrimonial Tribunal in 1986. 3
During presentation of private respondent's evidence, petitioner, on April 18, 1990, filed his
Opposition to private respondent's petition for appointment as administratrix of the conjugal
partnership of gains.

PUNO, J.:p
This petition for review on certiorari seeks to annul and set aside the decision dated July 29, 1994 of
the Court of Appeals in CA-G.R. CV No. 37925 denying petitioner's appeal from an order of the
Regional Trial Court, Branch 149, Makati in Civil Case No. 3769.
This case arose from the following facts:
In 1989, private respondent Maria Victoria Lopez Tuason filed with the Regional Trial Court, Branch
149, Makati a petition for annulment or declaration of nullity of her marriage to petitioner Emilio R.
Tuason. In her complaint, private respondent alleged that she and petitioner were married on June
3, 1972 and from this union, begot two children; that at the time of the marriage, petitioner was
already psychologically incapacitated to comply with his essential marital obligations which became
manifest afterward and resulted in violent fights between husband and wife; that in one of their
fights, petitioner inflicted physical injuries on private respondent which impelled her to file a criminal
case for physical injuries against him; that petitioner used prohibited drugs, was apprehended by the
authorities and sentenced to a one-year suspended penalty and has not been rehabilitated; that
petitioner was a womanizer, and in 1984, he left the conjugal home and cohabited with three women
in succession, one of whom he presented to the public as his wife; that after he left the conjugal
dwelling, petitioner gave minimal support to the family and even refused to pay for the tuition fees of
their children compelling private respondent to accept donations and dole-outs from her family and
friends; that petitioner likewise became a spendthrift and abused his administration of the conjugal
partnership by alienating some of their assets and incurring large obligations with banks, credit card
companies and other financial institutions, without private respondent's consent; that attempts at
reconciliation were made but they all failed because of petitioner's refusal to reform. In addition to
her prayer for annulment of marriage, private respondent prayed for powers of administration to
save the conjugal properties from further dissipation. 1
Petitioner answered denying the imputations against him. As affirmative defense, he claimed that he
and private respondent were a normal married couple during the first ten years of their marriage and
actually begot two children during this period; that it was only in 1982 that they began to have
serious personal differences when his wife did not accord the respect and dignity due him as a
husband but treated him like a persona non grata; that due to the "extreme animosities " between
them, he temporarily left the conjugal home for a "cooling-off period" in 1984; that it is private
respondent who had been taking prohibited drugs and had a serious affair with another man; that
petitioner's work as owner and operator of a radio and television station exposed him to malicious
gossip linking him to various women in media and the entertainment world; and that since 1984, he
experienced financial reverses in his business and was compelled, with the knowledge of his wife, to
dispose of some of the conjugal shares in exclusive golf and country clubs. Petitioner petitioned the
court to allow him to return to the conjugal home and continue his administration of the conjugal
partnership.
After the issues were joined, trial commenced on March 30, 1990. Private respondent presented
four witnesses, namely, herself; Dr. Samuel Wiley, a Canon Law expert and marriage counselor of
both private respondent and petitioner; Ms. Adelita Prieto, a close friend of the spouses, and Atty.

After private respondent rested her case, the trial court scheduled the reception of petitioner's
evidence on May 11, 1990.
On May 8, 1990, two days before the scheduled hearing , a counsel for petitioner moved for a
postponement on the ground that the principal counsel was out of the country and due to return on
the first week of June. 4 The court granted the motion and reset the hearing to June 8, 1990. 5
On June 8, 1990, petitioner failed to appear. On oral motion of private respondent, the court
declared petitioner to have waived his right to present evidence and deemed the case submitted for
decision on the basis of the evidence presented.
On June 29, 1990, the trial court rendered judgment declaring the nullity of private respondent's
marriage to petitioner and awarding custody of the children to private respondent. The court ruled:
WHEREFORE, in view of the foregoing, the marriage contracted by Ma. Victoria
L. Tuason and Emilio R. Tuason on June 3, 1972 is declared null and void ab
initio on the ground of psychological incapacity on the part of the defendant
under Sec. 36 of the Family Code. Let herein judgment of annulment be
recorded in the registry of Mandaluyong, Metro Manila where the marriage was
contracted and in the registry of Makati, Metro Manila where the marriage is
annulled.
The custody of the two (2) legitimate children of the plaintiff and the defendant
is hereby awarded to the plaintiff.
The foregoing judgment is without prejudice to the application of the other
effects of annulment as provided for under Arts . 50 and 51 of the Family Code
of the Philippines. 6
Counsel for petitioner received a copy of this decision on August 24, 1990. No appeal was taken
from the decision.
On September 24, 1990, private respondent filed a "Motion for Dissolution of Conjugal Partnership
of Gains and Adjudication to Plaintiff of the Conjugal Properties." 7 Petitioner opposed the motion on
October 17, 1990. 8
Also on the same day, October 17, 1990, petitioner, through new counsel, filed with the trial court a
petition for relief from judgment of the June 29, 1990 decision.
The trial court denied the petition on August 8, 1991. 9

Petitioner appealed before the Court of Appeals the order of the trial court denying his petition for
relief from judgment. On July 29, 1994, the Court of Appeals dismissed the appeal and affirmed the
order of the trial court. 10

unintentionally, did not inform the court of this fact. This led the trial court to order the case deemed
submitted for decision on the basis of the evidence presented by the private respondent alone. To
compound the negligence of petitioner's counsel, the order of the trial court was never assailed via a
motion for reconsideration.

Hence this petition.

The threshold issue is whether a petition for relief from judgment is warranted under the
circumstances of the case.

Clearly, petitioner cannot now claim that he was deprived of due process. He may have lost his right
to present evidence but he was not denied his day in court. As the record show, petitioner, through
counsel, actively participated in the proceedings below. He filed his answer to the petition, crossexamined private respondent's witnesses and even submitted his opposition to private respondent's
motion for dissolution of the conjugal partnership of gains. 17

We rule in the negative.

A petition for relief from judgment is governed by Rule 38, Section 2 of the Revised Rules of Court
which provides:
Sec. 2. Petition to Court of First Instance for relief from judgment or other
proceeding thereof. When a judgment or order is entered, or any other
proceeding is taken, against a party in a Court of First Instance through fraud,
accident, mistake, or excusable negligence, he may file a petition in such court
and in the same cause praying that the judgment, order or proceeding be set
aside.
Under the rules, a final and executory judgment or order of the Regional Trial Court may be set
aside on the ground of fraud, accident, mistake or excusable negligence. In addition, the petitioner
must assert facts showing that he has a good, substantial and meritorious defense or cause of
action. 11 If the petition is granted, the court shall proceed to hear and determine the case as if a
timely motion for new trial had been granted therein. 12
In the case at bar, the decision annulling petitioner's marriage to private respondent had already
become final and executory when petitioner failed to appeal during the reglementary period.
Petitioner however claims that the decision of the trial court was null and void for violation of his right
to due process. He contends he was denied due process when, after failing to appear on two
scheduled hearings, the trial court deemed him to have waived his right to present evidence and
rendered judgment on the basis of the evidence for private respondent. Petitioner justifies his
absence at the hearings on the ground that he was then "confined for medical and/or rehabilitation
reason." 13 In his affidavit of merit before the trial court, he attached a certification by Lt. Col. Plaridel
F. Vidal, Director of the Narcotics Command, Drug Rehabilitation Center which states that on March
27, 1990 petitioner was admitted for treatment of drug dependency at the Drug Rehabilitation Center
at Camp Bagong Diwa, Bicutan, Taguig, Metro Manila of the Philippine Constabulary-Integrated
National Police. 14 The records, however, show that the former counsel of petitioner did not inform
the trial court of this confinement. And when the court rendered its decision, the same counsel was
out of the country for which reason the decision became final and executory as no appeal was taken
therefrom. 15
The failure of petitioner's counsel to notify him on time of the adverse judgment to enable him to
appeal therefrom is negligence which is not excusable. Notice sent to counsel of record is binding
upon the client and the neglect or failure of counsel to inform him of an adverse judgment resulting
in the loss of his right to appeal is not a ground for setting aside a judgment valid and regular on its
face. 16
Similarly inexcusable was the failure of his former counsel to inform the trial court of petitioner's
confinement and medical treatment as the reason for his non-appearance at the scheduled
hearings. Petitioner has not given any reason why his former counsel, intentionally or

A petition for relief from judgment is an equitable remedy; it is allowed only in exception cases where
there is no other available or adequate remedy. When a party has another remedy available or
adequate remedy. When a party has another remedy available to him, which may be either a motion
for new trial or appeal from an adverse decision of the trial or appeal from an adverse decision of the
trial court, and he was not prevented by fraud, accident, mistake or excusable negligence from filing
such motion or taking such appeal, he cannot avail himself of this petition. 18 Indeed, relief will not be
granted to a party who seeks avoidance from the effects of the judgment when the loss of the
remedy at law was due to his own negligence; otherwise the petition for relief can be used to revive
the right to appeal which had been lost thru inexcusable negligence. 19
Petitioner also insists that he has a valid and meritorious defense. He cites the Family Code which
provides that in actions for annulment of marriage or legal separation, the prosecuting officer should
intervene for the state because the law "looks with disfavor upon the haphazard declaration of
annulment of marriages by default." He contends that when he failed to appear at the scheduled
hearings, the trial court should have ordered the prosecuting officer to intervene for the state and
inquire as to the reason for his non-appearance. 20
Articles 48 and 60 of the Family Code read as follows:
Art. 48. In all cases of annulment or declaration of absolute nullity of marriage,
the Court shall order the prosecution attorney or fiscal assigned to it to appear
on behalf of the State to take steps to prevent collusion between the parties and
to take care that evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be based
upon a stipulation of facts or confession of judgment.
xxx xxx xxx
Art. 60. No decree of legal separation shall be based upon a stipulation of facts
or a confession of judgment.
In any case, the Court shall order the prosecuting attorney or fiscal assigned to
it to take steps to prevent collusion between the parties and to take care that the
evidence is not fabricated or suppressed. 21
A grant of annulment of marriage or legal separation by default is fraught with the danger of
collusion. 22 Hence, in all cases for annulment, declaration of nullity of marriage and legal
separation, the prosecuting attorney or fiscal is ordered to appear on behalf of the state for the
purpose of preventing any collusion between the parties and to take care that their evidence is not
fabricated or suppressed. If the defendant spouse fails to answer the complaint, the court cannot

declare him or her in default but instead, should order the prosecuting attorney to determine if
collusion exists between the parties. 23The prosecuting attorney or fiscal may oppose the application
for legal separation or annulment through the presentation of his own evidence, if in his opinion, the
proof adduced is dubious and fabricated. 24 Our Constitution is committed to the policy of
strengthening the family as a basic social institution. 25 Our family law is based on the policy that
marriage is not a mere contract, but a social institution in which the state is vitally interested. The
state can find no stronger anchor than on good, solid and happy families. The break up of families
weakens our social and moral fabric and, hence, their preservation is not the concern alone of the
family members.
The facts in the case at bar do not call for the strict application of Articles 48 and 60 of the Family
Code. For one, petitioner was not declared in default by the trial court for failure to answer. Petitioner
filed his answer to the complaint and contested the cause of action alleged by private respondent.
He actively participated in the proceedings below by filing several pleadings and cross-examining
the witnesses of private respondent. It is crystal clear that every stage of the litigation was
characterized by a no-holds barred contest and not by collusion.
The role of the prosecuting attorney or fiscal in annulment of marriage and legal separation
proceedings is to determine whether collusion exists between the parties and to take care that the
evidence is not suppressed or fabricated. Petitioner's vehement opposition to the annulment
proceedings negates the conclusion that collusion existed between the parties. There is no
allegation by the petitioner that evidence was suppressed or fabricated by any of the parties. Under
these circumstances, we are convinced that the non-intervention of a prosecuting attorney to assure
lack of collusion between the contending parties is not fatal to the validity of the proceedings in the
trial court.
Petitioner also refutes the testimonies of private respondent's witnesses, particularly Dr. Samuel
Wiley and Ms. Adelita Prieto, as biased, incredible and hearsay. Petitioner alleges that if he were
able to present his evidence, he could have testified that he was not psychologically incapacitated at
the time of the marriage as indicated by the fact that during their first ten years, he and private
respondent lived together with their children as one normal and happy family, that he continued
supporting his family even after he left the conjugal dwelling and that his work as owner and
operator of a radio and television corporation places him in the public eye and makes him a good
subject for malicious gossip linking him with various women. These facts, according to petitioner,
should disprove the ground for annulment of his marriage to petitioner.
Suffice it to state that the finding of the trial court as to the existence or non-existence of petitioner's
psychological incapacity at the time of the marriage is final and binding on us. 26 Petitioner has not
sufficiently shown that the trial court's factual findings and evaluation of the testimonies of private
respondent's witnesses vis-a-vis petitioner's defenses are clearly and manifestly erroneous. 27
IN VIEW WHEREOF, the petition is denied and the decision dated July 29, 1994 of the Court of
Appeals in CA-G.R. CV No. 37925 is affirmed.

G.R. No. 145370

March 4, 2004

b. A parcel of land (adjoining the two lots covered by TCT Nos. 120082 and TCT No. 120083-Cavite)
located at Bancal, Carmona, Cavite, registered in the name of the family Ancheta. Biofood
Corporation under TCT No. 310882, together with the resort Munting Paraiso, Training Center, fourstorey building, pavilion, swimming pool and all improvements. All of the shares of stocks of Ancheta
Biofoods Corporation were distributed one-third (1/3) to the petitioner and the eight children onetwelfth (1/12) each.6

MARIETTA B. ANCHETA, petitioner,

vs.
RODOLFO S. ANCHETA, respondent.
DECISION

The court rendered judgment based on the said compromise agreement. Conformably thereto, the
respondent vacated, on June 1, 1994, the resort Munting Paraiso and all the buildings and
improvements thereon. The petitioner, with the knowledge of the respondent, thenceforth resided in
the said property.

CALLEJO, SR., J.:

This is a petition for review on certiorari of the Resolution1 of the Court of Appeals in CA-G.R. SP
No. 59550 which dismissed the petitioners petition under Rule 47 of the 1997 Rules of Civil
Procedure to annul the Order2 of the Regional Trial Court of Naic, Cavite, Branch 15 in Special
Proceedings No. NC-662 nullifying the marriage of the petitioner and the respondent Rodolfo S.
Ancheta, and of the resolution of the appellate court denying the motion for reconsideration of the
said resolution.
This case arose from the following facts:
After their marriage on March 5, 1959, the petitioner and the respondent resided in Muntinlupa,
Metro Manila. They had eight children during their coverture, whose names and dates of births are
as follows:

In the meantime, the respondent intended to marry again. On June 5, 1995, he filed a petition with
the Regional Trial Court of Naic, Cavite, Branch 15, for the declaration of nullity of his marriage with
the petitioner on the ground of psychological incapacity. The case was docketed as Sp. Proc. No.
NC-662. Although the respondent knew that the petitioner was already residing at the resort Munting
Paraiso in Bancal, Carmona, Cavite, he, nevertheless, alleged in his petition that the petitioner was
residing at No. 72 CRM Avenue corner CRM Corazon, BF Homes, Almanza, Las Pias, Metro
Manila, "where she may be served with summons."7 The clerk of court issued summons to the
petitioner at the address stated in the petition.8 The sheriff served the summons and a copy of the
petition by substituted service on June 6, 1995 on the petitioners son, Venancio Mariano B. Ancheta
III, at his residence in Bancal, Carmona, Cavite.9

a. ANA MARIE B . ANCHETA born October 6, 1959

On June 21, 1995, Sheriff Jose R. Salvadora, Jr. submitted a Return of Service to the court stating
that the summons and a copy of the petition were served on the petitioner through her son Venancio
Mariano B. Ancheta III on June 6, 1995:

b. RODOLFO B. ANCHETA, JR. born March 7, 1961

RETURN OF SERVICE

c. VENANCIO MARIANO B. ANCHETA born May 18, 1962

This is to certify that the summons together with the copy of the complaint and its annexes was
received by the herein defendant thru his son Venancio M.B. Ancheta [III] as evidenced by the
signature appearing on the summons. Service was made on June 6, 1995.

d. GERARDO B. ANCHETA born April 8, 1963

June 21, 1995, Naic, Cavite.

e. KATHRINA B. ANCHETA born October 29, 1965

(Sgd.) JOSE R. SALVADORA, JR.

Sheriff10

f. ANTONIO B. ANCHETA born March 6, 1967

g. NATASHA MARTINA B. ANCHETA - born August 2, 1968
h. FRITZIE YOLANDA B. ANCHETA born November 19, 19703
On December 6, 1992, the respondent left the conjugal home and abandoned the petitioner and
their children. On January 25, 1994, petitioner Marietta Ancheta filed a petition with the Regional
Trial Court of Makati, Branch 40, against the respondent for the dissolution of their conjugal
partnership and judicial separation of property with a plea for support and support pendente lite. The
case was docketed as Sp. Proc. No. M-3735. At that time, the petitioner was renting a house at No.
72 CRM Avenue cor. CRM Corazon, BF Homes, Almanza, Las Pias, Metro Manila.4
5

On April 20, 1994, the parties executed a Compromise Agreement where some of the conjugal
properties were adjudicated to the petitioner and her eight children, including the following:

The petitioner failed to file an answer to the petition. On June 22, 1995, the respondent filed an "ExParte Motion to Declare Defendant as in Default" setting it for hearing on June 27, 1995 at 8:30 a.m.
During the hearing on the said date, there was no appearance for the petitioner. The public
prosecutor appeared for the State and offered no objection to the motion of the respondent who
appeared with counsel. The trial court granted the motion and declared the petitioner in default, and
allowed the respondent to adduce evidence ex-parte. The respondent testified in his behalf and
adduced documentary evidence. On July 7, 1995, the trial court issued an Order granting the
petition and declaring the marriage of the parties void ab initio. 11 The clerk of court issued a
Certificate of Finality of the Order of the court on July 16, 1996.12
On February 14, 1998, Valentines Day, the respondent and Teresita H. Rodil were married in civil
rights before the municipal mayor of Indang, Cavite.13

On July 7, 2000, the petitioner filed a verified petition against the respondent with the Court of
Appeals under Rule 47 of the Rules of Court, as amended, for the annulment of the order of the
RTC of Cavite in Special Proceedings No. NC-662. The case was docketed as CA-G.R. SP No.
59550. The petitioner alleged, inter alia, that the respondent committed gross misrepresentations by
making it appear in his petition in Sp. Proc. No. NC-662 that she was a resident of No. 72 CRM
Avenue cor. CRM Corazon, BF Homes, Almanza, Las Pias, Metro Manila, when in truth and in fact,
the respondent knew very well that she was residing at Munting Paraiso, Bancal, Carmona, Cavite.
According to the petitioner, the respondent did so to deprive her of her right to be heard in the said
case, and ultimately secure a favorable judgment without any opposition thereto. The petitioner also
alleged that the respondent caused the service of the petition and summons on her by substituted
service through her married son, Venancio Mariano B. Ancheta III, a resident of Bancal, Carmona,
Cavite, where the respondent was a resident. Furthermore, Venancio M.B. Ancheta III failed to
deliver to her the copy of the petition and summons. Thus, according to the petitioner, the order of
the trial court in favor of the respondent was null and void (1) for lack of jurisdiction over her person;
and (2) due to the extrinsic fraud perpetrated by the respondent. She further contended that there
was no factual basis for the trial courts finding that she was suffering from psychological incapacity.
Finally, the petitioner averred that she learned of the Order of the RTC only on January 11, 2000.
Appended to the petition, inter alia, were the affidavits of the petitioner and of Venancio M.B.
Ancheta III.

The petitioner filed a motion for the reconsideration of the said resolution, appending thereto an
amended petition in which she alleged, inter alia, that:

The petitioner prayed that, after due proceedings, judgment be rendered in her favor, thus:

The petitioner also alleged therein that the order of the trial court nullifying her and the respondents
marriage was null and void for the court a quos failure to order the public prosecutor to conduct an
investigation on whether there was collusion between the parties, and to order the Solicitor General
to appear for the State.

WHEREFORE, petitioner respectfully prays this Honorable Court to render Judgment granting the
Petition.
1. Declaring null and void the Order dated June 7, 1995 (of the Regional Trial Court,
Branch 14, Naic, Cavite).
2. Ordering respondent to pay petitioner
a. P1,000,000.00 as moral damages;
b. P500,000.00 as exemplary damages;

4. This petition is based purely on the grounds of extrinsic fraud and lack of jurisdiction.
5. This petition has not prescribed; it was filed within the four-year period after discovery
of the extrinsic fraud.
6. The ground of extrinsic fraud has not been availed of, or could not have been availed of
in a motion for new trial or petition for relief.
7. The ground of lack of jurisdiction is not barred by laches and/or estoppel.
8. The ordinary remedies of new trial, appeal, petition for relief or other appropriate
remedies were no longer available through no fault of petitioner; neither has she ever
availed of the said remedies. This petition is the only available remedy to her.16

On September 27, 2000, the CA issued a Resolution denying the said motion.
The petitioner filed a petition for review on certiorari with this Court alleging that the CA erred as
follows:
1. In failing to take into consideration the kind of Order which was sought to be annulled.
2. In finding that the Petition was procedurally flawed.

c. P200,000.00 as attorneys fees plus P7,500.00 per diem for every hearing;

3. In not finding that the Petition substantially complied with the requirements of the Rules
of Court.

d. P100,000.00 as litigation expenses;

4. In failing to comply with Section 5, Rule 47, Rules of Court.

e. Costs of suit.14

5. In not even considering/resolving Petitioners Motion to Admit the Amended Petition;

and in not admitting the Amended Petition.

On July 13, 2000, the CA issued a Resolution dismissing the petition on the following ground:
6. In failing to apply the Rules of Procedure with liberality.17
We cannot give due course to the present petition in default or in the absence of any clear and
specific averment by petitioner that the ordinary remedies of new trial, appeal, petition for relief or
other appropriate remedies are no longer available through no fault of petitioner. Neither is there any
averment or allegation that the present petition is based only on the grounds of extrinsic fraud and
lack of jurisdiction. Nor yet that, on the assumption that extrinsic fraud can be a valid ground
therefor, that it was not availed of, or could not have been availed of, in a motion for new trial, or
petition for relief.15

The petition is meritorious.

An original action in the Court of Appeals under Rule 47 of the Rules of Court, as amended, to annul
a judgment or final order or resolution in civil actions of the RTC may be based on two grounds: (a)
extrinsic fraud; or (b) lack of jurisdiction. If based on extrinsic fraud, the remedy is subject to a
condition precedent, namely, the ordinary remedies of new trial, appeal, petition for relief or other
appropriate remedies are no longer available through no fault of the petitioner.18 The petitioner must

allege in the petition that the ordinary remedies of new trial, appeal, petition for relief from judgment,
under Rule 38 of the Rules of Court are no longer available through no fault of hers; otherwise, the
petition will be dismissed. If the petitioner fails to avail of the remedies of new trial, appeal or relief
from judgment through her own fault or negligence before filing her petition with the Court of
Appeals, she cannot resort to the remedy under Rule 47 of the Rules; otherwise, she would benefit
from her inaction or negligence.19
It is not enough to allege in the petition that the said remedies were no longer available through no
fault of her own. The petitioner must also explain and justify her failure to avail of such remedies.
The safeguard was incorporated in the rule precisely to avoid abuse of the remedy.20 Access to the
courts is guaranteed. But there must be limits thereto. Once a litigants rights have been adjudicated
in a valid final judgment of a competent court, he should not be granted an unbridled license to sue
anew. The prevailing party should not be vexed by subsequent suits.21
In this case, the petitioner failed to allege in her petition in the CA that the ordinary remedies of new
trial, appeal, and petition for relief, were no longer available through no fault of her own. She merely
alleged therein that she received the assailed order of the trial court on January 11, 2000. The
petitioners amended petition did not cure the fatal defect in her original petition, because although
she admitted therein that she did not avail of the remedies of new trial, appeal or petition for relief
from judgment, she did not explain why she failed to do so.
We, however, rule that the Court of Appeals erred in dismissing the original petition and denying
admission of the amended petition. This is so because apparently, the Court of Appeals failed to
take note from the material allegations of the petition, that the petition was based not only on
extrinsic fraud but also on lack of jurisdiction over the person of the petitioner, on her claim that the
summons and the copy of the complaint in Sp. Proc. No. NC-662 were not served on her. While the
original petition and amended petition did not state a cause of action for the nullification of the
assailed order on the ground of extrinsic fraud, we rule, however, that it states a sufficient cause of
action for the nullification of the assailed order on the ground of lack of jurisdiction of the RTC over
the person of the petitioner, notwithstanding the absence of any allegation therein that the ordinary
remedy of new trial or reconsideration, or appeal are no longer available through no fault of the
petitioner.
In a case where a petition for the annulment of a judgment or final order of the RTC filed under Rule
47 of the Rules of Court is grounded on lack of jurisdiction over the person of the
defendant/respondent or over the nature or subject of the action, the petitioner need not allege in the
petition that the ordinary remedy of new trial or reconsideration of the final order or judgment or
appeal therefrom are no longer available through no fault of her own. This is so because a judgment
rendered or final order issued by the RTC without jurisdiction is null and void and may be assailed
any time either collaterally or in a direct action or by resisting such judgment or final order in any
action or proceeding whenever it is invoked,22 unless barred by laches.23

In Paramount Insurance Corporation v. Japzon,24 we held that jurisdiction is acquired by a trial court
over the person of the defendant either by his voluntary appearance in court and his submission to
its authority or by service of summons. The service of summons and the complaint on the defendant
is to inform him that a case has been filed against him and, thus, enable him to defend himself. He
is, thus, put on guard as to the demands of the plaintiff or the petitioner. Without such service in the
absence of a valid waiver renders the judgment of the court null and void.25 Jurisdiction cannot be
acquired by the court on the person of the defendant even if he knows of the case against him
unless he is validly served with summons.26
Summons and complaint may be served on the defendant either by handing a copy thereof to him in
person, or, if he refuses to receive and sign for it, by tendering it to her.27 However, if there is
impossibility of prompt service of the summons personally on the defendant despite diligent efforts
to find him, service of the summons may be effected by substituted service as provided in Section 7,
Rule 14 of the said Rules:
SEC. 7. Substituted service. If, for justifiable causes, the defendant cannot be served within a
reasonable time as provided in the preceding section, service may be effected (a) by leaving copies
of the summons at the defendants residence with some person of suitable age and discretion then
residing therein, or (b) by leaving the copies of defendants office or regular place of business with
some competent person in charge thereof.28
In Miranda v. Court of Appeals,29 we held that the modes of service should be strictly followed in
order that the court may acquire jurisdiction over the person of the defendant. Thus, it is only when a
defendant cannot be served personally within a reasonable time that substituted service may be
made by stating the efforts made to find him and personally serve on him the summons and
complaint and the fact that such effort failed.30 This statement should be made in the proof of service
to be accomplished and filed in court by the sheriff. This is necessary because substituted service is
a derogation of the usual method of service. It has been held that substituted service of summons is
a method extraordinary in character; hence, may be used only as prescribed and in the
circumstances categorized by statutes.31
As gleaned from the petition and the amended petition in the CA and the annexes thereof, the
summons in Sp. Proc. No. NC-662 was issued on June 6, 1995.32 On the same day, the summons
was served on and received by Venancio Mariano B. Ancheta III,33 the petitioners son. When the
return of summons was submitted to the court by the sheriff on June 21, 1995, no statement was
made on the impossibility of locating the defendant therein within a reasonable time, or that any
effort was made by the sheriff to locate the defendant. There was no mention therein that Venancio
Mariano Ancheta III was residing at No. 72 CRM Avenue cor. CRM Corazon, BF Homes, Almanza,
Las Pias, where the petitioner (defendant therein) was allegedly residing. It turned out that
Venancio Mariano B. Ancheta III had been residing at Bancal, Carmona, Cavite, and that his father
merely showed him the summons and the complaint and was made to affix his signature on the face
of the summons; he was not furnished with a copy of the said summons and complaint.

In this case, the original petition and the amended petition in the Court of Appeals, in light of the
material averments therein, were based not only on extrinsic fraud, but also on lack of jurisdiction of
the trial court over the person of the petitioner because of the failure of the sheriff to serve on her the
summons and a copy of the complaint. She claimed that the summons and complaint were served
on her son, Venancio Mariano B. Ancheta III, who, however, failed to give her the said summons and
complaint.

4. From the time my father started staying at Munting Paraiso, Bancal, Carmona, Cavite, I
have been residing on the adjoining land consisting of two (2) lots later apportioned to my
father as his share of the conjugal partnership. Since then, I have been residing therein up
to the present.

Even a cursory reading of the material averments of the original petition and its annexes will show
that it is, prima facie meritorious; hence, it should have been given due course by the Court of
Appeals.

5. On June 6, 1995, at Bancal, Carmona, Cavite (at my residence situated on my fathers

lot), my father came to see me and then asked me to sign and I did sign papers which he
(my father) and the Sheriff did not allow me to read. Apparently, these papers are for the
Summons to my mother in the case for annulment of marriage filed by my father against
her. I was not given any copy of the Summons and/or copy of the complaint/petition.34

We, thus, rule that the Court of Appeals acted arbitrarily in dismissing the original petition of the
petitioner and the amended petition for annulment of the assailed order grounded on lack of
jurisdiction over the person of the petitioner.
The action in Rule 47 of the Rules of Court does not involve the merits of the final order of the trial
court. However, we cannot but express alarm at what transpired in the court a quo as shown by the
records. The records show that for the petitioners failure to file an answer to the complaint, the trial
court granted the motion of the respondent herein to declare her in default. The public prosecutor
condoned the acts of the trial court when he interposed no objection to the motion of the respondent.
The trial court forthwith received the evidence of the respondent ex-parte and rendered judgment
against the petitioner without a whimper of protest from the public prosecutor. The actuations of the
trial court and the public prosecutor are in defiance of Article 48 of the Family Code, which reads:
Article 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall
order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps
to prevent collusion between the parties and to take care that evidence is not fabricated or
suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation
of facts or confession of judgment.35
The trial court and the public prosecutor also ignored Rule 18, Section 6 of the 1985 Rules of Court
(now Rule 9, Section 3[e] of the 1997 Rules of Civil Procedure) which provides:
Sec. 6. No defaults in actions for annulment of marriage or for legal separation. If the defendant in
an action for annulment of marriage or for legal separation fails to answer, the court shall order the
prosecuting attorney to investigate whether or not a collusion between the parties exits, and if there
is no collusion, to intervene for the State in order to see to it that the evidence submitted is not
fabricated.36
In the case of Republic v. Court of Appeals,37 this Court laid down the guidelines in the interpretation
and application of Art. 48 of the Family Code, one of which concerns the role of the prosecuting
attorney or fiscal and the Solicitor General to appear as counsel for the State:
(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear
as counsel for the state. No decision shall be handed down unless the Solicitor General issues a
certification, which will be quoted in the decision, briefly stating therein his reasons for his
agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the
prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date
the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the
equivalent function of the defensor vinculi contemplated under Canon 1095.38
This Court in the case of Malcampo-Sin v. Sin39 reiterated its pronouncement in Republic v. Court of
Appeals,40regarding the role of the prosecuting attorney or fiscal and the Solicitor General to appear
as counsel for the State.41 The trial court, abetted by the ineptitude, if not sheer negligence of the
public prosecutor, waylaid the Rules of Court and the Family Code, as well as the rulings of this
Court.
The task of protecting marriage as an inviolable social institution requires vigilant and zealous
participation and not mere pro-forma compliance. The protection of marriage as a sacred institution
requires not just the defense of a true and genuine union but the exposure of an invalid one as
well.42

A grant of annulment of marriage or legal separation by default is fraught with the danger of
collusion. Hence, in all cases for annulment, declaration of nullity of marriage and legal separation,
the prosecuting attorney or fiscal is ordered to appear on behalf of the State for the purpose of
preventing any collusion between the parties and to take care that their evidence is not fabricated or
suppressed. If the defendant-spouse fails to answer the complaint, the court cannot declare him or
her in default but instead, should order the prosecuting attorney to determine if collusion exists
between the parties. The prosecuting attorney or fiscal may oppose the application for legal
separation or annulment through the presentation of his own evidence, if in his opinion, the proof
adduced is dubious and fabricated.
Our constitution is committed to the policy of strengthening the family as a basic social institution.
Our family law is based on the policy that marriage is not a mere contract, but a social institution in
which the State is vitally interested. The State can find no stronger anchor than on good, solid and
happy families. The break-up of families weakens our social and moral fabric; hence, their
preservation is not the concern of the family members alone.43Whether or not a marriage should
continue to exist or a family should stay together must not depend on the whims and caprices of
only one party, who claims that the other suffers psychological imbalance, incapacitating such party
to fulfill his or her marital duties and obligations.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Resolutions of the Court of
Appeals dated July 13, 2000 and September 27, 2000 in CA-G.R. SP No. 59550 are hereby SET
ASIDE and REVERSED. Let the records of CA-G.R. SP No. 59550 be remanded to the Court of
Appeals for further proceedings conformably with the Decision of this Court and Rule 47 of the
Rules of Court, as amended.

G.R. No. 164915

March 10, 2006

The appellate court eventually dismissed the habeas corpus petition, by Resolution of July 3, 2003,
for having become moot and academic, "the restraint on the liberty of the person alleged to be in
restraint [having been] lifted."

ERIC JONATHAN YU, Petitioner,

vs.
CAROLINE T. YU, Respondent.
DECISION

In the meantime, respondent filed on July 24, 2003 before the Pasay RTC a petition for habeas
corpus, which she denominated as "Amended Petition," praying for, among other things, the award
of the sole custody to her of Biancaor, in the alternative, pending the hearing of the petition, the
issuance of an order "replicating and reiterating the enforceability of the Interim Visiting Agreement"
which was approved by the appellate court. The petition was docketed as SP Proc. No. 03-0048.

CARPIO MORALES, J.:

On January 11, 2002, Eric Jonathan Yu (petitioner) filed a petition for habeas corpus before the
Court of Appeals alleging that his estranged wife Caroline Tanchay-Yu (respondent) unlawfully
withheld from him the custody of their minor child Bianca. The petition, which included a prayer for
the award to him of the sole custody of Bianca, was docketed as CA-G.R. SP No. 68460.
Subsequently or on March 3, 2002, respondent filed a petition against petitioner before the Pasig
Regional Trial Court (RTC) for declaration of nullity of marriage and dissolution of the absolute
community of property. The petition included a prayer for the award to her of the sole custody of
Bianca and for the fixing of schedule of petitioners visiting rights "subject only to the final and
executory judgment of the Court of Appeals in CA-G.R. SP No. 68460."
In the meantime, the appellate court, by Resolution of March 21, 2002, awarded petitioner full
custody of Bianca during the pendency of the habeas corpus case, with full visitation rights of
respondent.
Petitioner and respondent later filed on April 5, 2002 before the appellate court a Joint Motion to
Approve Interim Visitation Agreement which was, by Resolution of April 24, 2002, approved.
On April 18, 2002, respondent filed before the appellate court a Motion for the Modification of her
visiting rights under the Interim Visitation Agreement. To the Motion, petitioner filed an Opposition
with Motion to Cite Respondent for Contempt of Court in light of her filing of the petition for
declaration of nullity of marriage before the Pasig RTC which, so he contended, constituted forum
shopping.
By Resolution of July 5, 2002, the appellate court ordered respondent and her counsel to make the
necessary amendment in her petition for declaration of nullity of marriage before the Pasig City RTC
in so far as the custody aspect is concerned, under pain of contempt.
In compliance with the appellate courts Resolution of July 5, 2002, respondent filed a Motion to
Admit Amended Petition before the Pasig RTC. She, however, later filed in December 2002 a Motion
to Dismiss her petition, without prejudice, on the ground that since she started residing and
conducting business at her new address at Pasay City, constraints on resources and her very busy
schedule rendered her unable to devote the necessary time and attention to the petition. The Pasig
RTC granted respondents motion and accordingly dismissed the petition without prejudice, by Order
of March 28, 2003.
On June 12, 2003, petitioner filed his own petition for declaration of nullity of marriage and
dissolution of the absolute community of property before the Pasig RTC, docketed as JDRC Case
No. 6190, with prayer for the award to him of the sole custody of Bianca, subject to the final
resolution by the appellate court of his petition for habeas corpus.

Not to be outdone, petitioner filed on July 25, 2003 before the Pasig RTC in his petition for
declaration of nullity of marriage an urgent motion praying for the custody of Bianca for the duration
of the case.
Acting on respondents petition, Branch 113 of the Pasay RTC issued a Writ of Habeas Corpus, a
Hold Departure Order and Summons addressed to petitioner, drawing petitioner to file a motion to
dismiss the petition on the ground of lack of jurisdiction, failure to state a cause of action, forum
shopping and litis pendentia, he citing the pending petition for declaration of nullity of marriage which
he filed before the Pasig RTC.
The Pasay RTC, in the meantime, issued an Order of August 12, 2003 declaring that pending the
disposition of respondents petition, Bianca should stay with petitioner from Sunday afternoon to
Saturday morning and "with the company of her mother from Saturday 1:00 in the afternoon up to
Sunday 1:00 in the afternoon." To this Order, petitioner filed a Motion for Reconsideration, arguing
that the Pasay RTC did not have jurisdiction to issue the same. He likewise filed a Manifestation of
August 14, 2003 stating that he was constrained to submit to the said courts order but with the
reservation that he was not submitting the issue of custody and himself to its jurisdiction.
Respondent soon filed her Answer with Counter-Petition on the nullity case before the Pasig RTC
wherein she also prayed for the award of the sole custody to her of Bianca, subject to the final
disposition of the habeas corpus petition which she filed before the Pasay RTC.
By Omnibus Order of October 30, 2003, the Pasig RTC asserted its jurisdiction over the custody
aspect of the petition filed by petitioner and directed the parties to comply with the provisions of the
Interim Visitation Agreement, unless they agreed to a new bilateral agreement bearing the approval
of the court; and granted custody of Bianca to petitioner for the duration of the case.
The Pasay RTC in the meantime denied, by Order of November 27, 2003, petitioners motion to
dismiss. The court, citing Sombong v. Court of Appeals,1 held that in custody cases involving minors,
the question of illegal and involuntary restraint of liberty is not the underlying rationale for the
availability of a writ of habeas corpus as a remedy; rather, a writ of habeas corpus is prosecuted for
the purpose of determining the right of custody over the child.2 And it further held that the filing
before it of the habeas corpus case by respondent, who is a resident of Pasay, is well within the
ambit of the provisions of A.M. No. 03-04-04-SC.3
On the issue of forum shopping, the Pasay RTC held that it is petitioner, not respondent, who
committed forum shopping, he having filed (on June 12, 2003) the petition for declaration of nullity of
marriage before the Pasig RTC while his petition for habeas corpus before the Court of Appeals was
still pending.4

The Pasay RTC held that assuming arguendo that petitioners filing before the Pasig RTC of the
declaration of nullity of marriage case did not constitute forum shopping, it (the Pasay RTC)
acquired jurisdiction over the custody issue ahead of the Pasig RTC, petitioner not having amended
his petition before the Pasig RTC as soon as the Court of Appeals dismissed his petition for habeas
corpus5 (on July 3, 2003).

CASE IN RECKLESS DISREGARD OF THE PRINCIPLE THAT THE FILING OF A PETITION FOR
NULLITY OF MARRIAGE BEFORE THE FAMILY COURTS VESTS THE LATTER WITH
EXCLUSIVE JURISDICTION TO DETERMINE THE NECESSARY ISSUE OF CUSTODY.

Finally, the Pasay RTC held that there was no litis pendentia because two elements thereof are
lacking, namely, 1) identity of the rights asserted and reliefs prayed for, the relief being founded on
the same facts, and 2) identity with respect to the two preceding particulars in the two cases such
that any judgment that may be rendered in the pending case, regardless of which party is
successful, would amount to res judicata in the other case.6

II. . . . APPL[YING] THE LAW OF THE CASE DOCTRINE BY RULING THAT THE PASIG FAMILY
COURT HAS NO JURISDICTION OVER THE CUSTODY ASPECT OF THE NULLITY CASE ON
THE BASIS OF THE JULY 5, 2002 RESOLUTION OF THE COURT OF APPEALS IN CA GR SP
NO. 68460 WHEN THE SAID RESOLUTION CLEARLY APPLIES ONLY TO THE NULLITY CASE
FILED BY PRIVATE RESPONDENT ON MARCH 7, 2002 DOCKETED AS JDRC CASE NO. 5745
AND NOT TO HEREIN PETITIONERS JUNE 12, 2003 PETITION FOR NULLITY DOCKETED AS
JDRC CASE NO. 6190.

Petitioner thereupon assailed the Pasay RTCs denial of his Motion to Dismiss via Petition for
Certiorari, Prohibition and Mandamus before the appellate court wherein he raised the following
issues:

III. . . . DECLARING THAT THE PASIG FAMILY COURT MUST YIELD TO THE JURISDICTION OF
THE PASAY COURT INSOFAR AS THE ISSUE OF CUSTODY IS CONCERNED IN GRAVE
VIOLATION OF THE DOCTRINE OF JUDICIAL STABILITY AND NON-INTERFERENCE.

A. RESPONDENT JUDGE COMMITTED GRAVE ABUSE OF DISCRETION BY

DENYING PETITIONERS MOTION TO DISMISS DESPITE THE EVIDENT LACK OF
JURISDICTION OVER THE SUBJECT MATTER OF CUSTODY, LITIS PENDENTIA, AND
DELIBERATE AND WILLFUL FORUM-SHOPPING ON THE PART OF RESPONDENT
CAROLINE T. YU.7

IV. . . . RULING THAT PRIVATE RESPONDENT CAROLINE DID NOT COMMIT FORUMSHOPING IN FILING THE HABEAS CORPUS CASE WITH PRAYER FOR CUSTODY BEFORE
THE RESPONDENT PASAY COURT DESPITE THE FACT THAT AN EARLIER FILED PETITION
FOR DECLARATION OF NULLITY OF MARRIAGE WITH PRAYER FOR CUSTODY IS STILL
PENDING BEFORE THE PASIG FAMILY COURT WHEN THE FORMER CASE WAS INSTITUTED.

B. RESPONDENT JUDGE ACTED WHIMSICALLY, CAPRICIOUSLY AND ARBITRARILY

IN ISSUING THE AUGUST 12, 2003 ORDER GRANTING RESPONDENT CAROLINE T.
YU OVERNIGHT VISITATION RIGHTS OVER THE MINOR CHILD BIANCA AND
DENYING PETITIONERS URGENT MOTION FOR RECONSIDERATION OF THE SAID
ORDER.8 (Underscoring supplied)

V. . . . RULING THAT RESPONDENT CAROLINE YU DID NOT SUBMIT TO THE JURISDICTION

OF THE PASIG FAMILY COURT BASED ON AN ERRONEOUS FACTUAL FINDING THAT SHE
FILED ON AUGUST 25, 2003 AN OMNIBUS OPPOSITION IN PETITIONERS ACTION FOR
NULLITY BEFORE THE PASIG COURT.10 (Underscoring supplied)
The petition is impressed with merit.

By Decision of August 10, 2004,9 the appellate court denied petitioners petition, it holding that the
assumption of jurisdiction by the Pasay RTC over the habeas corpus case does not constitute grave
abuse of discretion; the filing by respondent before the Pasay RTC of a petition for habeas corpus
could not be considered forum shopping in the strictest sense of the word as before she filed it after
petitioners petition for habeas corpus filed before the appellate court was dismissed; and it was
petitioner who committed forum shopping when he filed the declaration of nullity of marriage case
while his habeas corpus petition was still pending before the appellate court.
In fine, the appellate court held that since respondent filed the petition for declaration of nullity of
marriage before the Pasig RTC during the pendency of the habeas corpus case he filed before the
appellate court, whereas respondent filed the habeas corpus petition before the Pasay RTC on July
24, 2003 after the dismissal on July 3, 2003 by the appellate court of petitioners habeas corpus
case, jurisdiction over the issue custody of Bianca did not attach to the Pasig RTC.
As for the questioned order of the Pasay RTC which modified the Interim Visiting Agreement, the
appellate court, noting that the proper remedy for the custody of Bianca was filed with the Pasay
RTC, held that said court had the authority to issue the same.
Hence, the present petition filed by petitioner faulting the appellate court for
I. . . . DECLARING THAT PETITIONER ERIC YU COMMITTED FORUM-SHOPPING IN FILLING
THE PETITION FOR DECLARATION OF NULLITY OF MARRIAGE WITH PRAYER FOR
CUSTODY BEFORE THE PASIG FAMILY COURT AND THAT THE LATTER COURT WAS
BARRED FROM ACQUIRING JURISDICTION OVER THE CUSTODY ASPECT OF THE NULLITY

The main issue raised in the present petition is whether the question of custody over Bianca should
be litigated before the Pasay RTC or before the Pasig RTC.
Judgment on the issue of custody in the nullity of marriage case before the Pasig RTC, regardless of
which party would prevail, would constitute res judicata on the habeas corpus case before the Pasay
RTC since the former has jurisdiction over the parties and the subject matter.
There is identity in the causes of action in Pasig and Pasay because there is identity in the facts and
evidence essential to the resolution of the identical issue raised in both actions11 whether it would
serve the best interest of Bianca to be in the custody of petitioner rather than respondent or vice
versa.
Since the ground invoked in the petition for declaration of nullity of marriage before the Pasig RTC is
respondents alleged psychological incapacity to perform her essential marital obligations 12 as
provided in Article 36 of the Family Code, the evidence to support this cause of action necessarily
involves evidence of respondents fitness to take custody of Bianca. Thus, the elements of litis
pendentia, to wit: a) identity of parties, or at least such as representing the same interest in both
actions; b) identity of rights asserted and reliefs prayed for, the relief being founded on the same
facts; and c) the identity in the two cases should be such that the judgment that may be rendered in
the pending case would, regardless of which party is successful, amount to res judicata in the
other,13 are present.

Respondent argues in her Comment to the petition at bar that the Pasig RTC never acquired
jurisdiction over the custody issue raised therein.
"[T]he subsequent dismissal of the habeas corpus petition by the Court of Appeals on 3 July 2003
could not have the effect of conferring jurisdiction over the issue on the Pasig court. For the Pasig
court to acquire jurisdiction over the custody issue after the dismissal of the habeas corpus petition
before the Court of Appeals, the rule is that petitioner must furnish the occasion for the acquisition of
jurisdiction by repleading his cause of action for custody and invoking said cause
anew."14 (Emphasis and underscoring supplied)
And respondent cites Caluag v. Pecson,15 wherein this Court held:
Jurisdiction of the subject matter of a particular case is something more than the general power
conferred by law upon a court to take cognizance of cases of the general class to which the
particular case belongs. It is not enough that a court has power in abstract to try and decide the
class litigations [sic] to which a case belongs; it is necessary that said power be properly invoked, or
called into activity, by the filing of a petition, or complaint or other appropriate pleading.
(Underscoring supplied by Caroline.)16
Specific provisions of law govern the case at bar, however. Thus Articles 49 and 50 of the Family
Code provide:
Art. 49. During the pendency of the action [for annulment or declaration of nullity of marriage] and in
the absence of adequate provisions in a written agreement between the spouses, the Court shall
provide for the support of the spouses and the custody and support of their common children. x
x x It shall also provide for appropriate visitation rights of the other parent. (Emphasis and
underscoring supplied)17
Art. 50. x x x x
The final judgment in such cases [for the annulment or declaration of nullity of marriage] shall
provide for the liquidation, partition and distribution of the properties of the
spouses, the custody and support of the common children, and the delivery of their presumptive
legitimes, unless such other matters had been adjudicated in previous judicial proceedings."
(Emphasis and underscoring added)
By petitioners filing of the case for declaration of nullity of marriage before the Pasig RTC he
automatically submitted the issue of the custody of Bianca as an incident thereof. After the appellate
court subsequently dismissed the habeas corpus case, there was no need for petitioner to replead
his prayer for custody for, as above-quoted provisions of the Family Code provide, the custody issue
in a declaration of nullity case is deemed pleaded. That that is so gains light from Section 21 of the
"Rule on Declaration Of Absolute Nullity Of Void Marriages and Annulment of Voidable
Marriages"18 which provides:
Sec. 21. Liquidation, partition and distribution, custody, support of common children and delivery of
their presumptive legitimes.Upon entry of the judgment granting the petition, or, in case of appeal,
upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court,
on motion of either party, shall proceed with the liquidation, partition and distribution of the
properties of the spouses, including custody, support of common children and delivery of
their presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters
had been adjudicated in previous judicial proceedings. (Emphasis and underscoring supplied)

Since this immediately-quoted provision directs the court taking jurisdiction over a petition for
declaration of nullity of marriage to resolve the custody of common children, by mere motion of
either party, it could only mean that the filing of a new action is not necessary for the court to
consider the issue of custody of a minor.19
The only explicit exception to the earlier-quoted second paragraph of Art. 50 of the Family Code is
when "such matters had been adjudicated in previous judicial proceedings," which is not the case
here.
The elements of litis pendentia having been established, the more appropriate action criterion
guides this Court in deciding which of the two pending actions to abate.20
The petition filed by petitioner for the declaration of nullity of marriage before the Pasig RTC is the
more appropriate action to determine the issue of who between the parties should have custody
over Bianca in view of the express provision of the second paragraph of Article 50 of the Family
Code. This must be so in line with the policy of avoiding multiplicity of suits. 21
The appellate court thus erroneously applied the law of the case doctrine when it ruled that in its
July 5, 2002 Resolution that the pendency of the habeas corpus petition in CA-G.R. SP No. 68460
prevented the Pasig RTC from acquiring jurisdiction over the custody aspect of petitioners petition
for declaration of nullity. The factual circumstances of the case refelected above do not justify the
application of the law of the case doctrine which has been defined as follows:
Law of the case has been defined as the opinion delivered on a former appeal. It is a term
applied to an established rule that when an appellate court passes on a question and remands
the case to the lower court for further proceedings, the question there settled becomes the
law of the case upon subsequent appeal. It means that whatever is once irrevocably established
as the controlling legal rule or decision between the same parties in the same case continues to be
the law of the case, whether correct on general principles or not, so long as the facts on which such
decision was predicated continue to be the facts of the case before the court." (Emphasis and
underscoring supplied, italics in the original)22
WHEREFORE, the petition is GRANTED. The August 10, 2004 decision of the Court of Appeals
is REVERSED andSET ASIDE,and another is entered DISMISSING Pasay City Regional Trial
Court Sp. Proc. No. 03-0048-CFM and ordering Branch 69 of Pasig City Regional Trial Court to
continue, with dispatch, the proceedings in JDRC No. 6190.

G.R. No. 189207

June 15, 2011

ERIC U. YU, Petitioner,

vs.
HONORABLE JUDGE AGNES REYES-CARPIO, in her official capacity as Presiding Judge,
Regional Trial Court of Pasig-Branch 261; and CAROLINE T. YU, Respondents.
DECISION
VELASCO, JR., J.:
The Case
This is a Petition for Certiorari under Rule 65 which seeks to annul and set aside the March 31, 2009
Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 106878. The CA Decision affirmed the
Orders dated August 4, 20082and October 24, 20083 of the Regional Trial Court (RTC), Branch 261
in Pasig City.
The Facts
The instant petition stemmed from a petition for declaration of nullity of marriage filed by petitioner
Eric U. Yu against private respondent Caroline T. Yu with the RTC in Pasig City. The case was
initially raffled to Branch 163.
On May 30, 2006, Judge Leili Cruz Suarez of the RTC-Branch 163 issued an Order, stating that
petitioners Partial Offer of Evidence dated April 18, 2006 would already be submitted for resolution
after certain exhibits of petitioner have been remarked. But the exhibits were only relative to the
issue of the nullity of marriage of the parties.4
On September 12, 2006, private respondent moved to submit the incident on the declaration of
nullity of marriage for resolution of the court, considering that the incidents on custody, support, and
property relations were mere consequences of the declaration of nullity of the parties marriage.5
On September 28, 2006, petitioner opposed private respondents Motion, claiming that the incident
on the declaration of nullity of marriage cannot be resolved without the presentation of evidence for
the incidents on custody, support, and property relations.6 Petitioner, therefore, averred that the
incident on nullity of marriage, on the one hand, and the incidents on custody, support, and property
relations, on the other, should both proceed and be simultaneously resolved.
On March 21, 2007, RTC-Branch 163 issued an Order in favor of petitioners opposition. Particularly,
it stated that:
The Court agrees with the contention of the Petitioner that it would be more in accord with the rules
if the Parties were first allowed to present their evidence relative to the issues of property relations,
custody and support to enable the Court to issue a comprehensive decision thereon.7

Subsequently, private respondent was able to successfully cause the inhibition of Judge Cruz
Suarez of the RTC-Branch 163. Consequently, the case was re-raffled to another branch of the
Pasig RTC, particularly Branch 261, presided by Judge Agnes Reyes-Carpio.8
Thereafter, while the case was being heard by the RTC-Branch 261, private respondent filed an
Omnibus Motion on May 21, 2008. The Omnibus Motion sought (1) the strict observation by the
RTC-Branch 261 of the Rule on Declaration of Absolute Nullity of Void Marriages, as codified in A.M.
No. 02-11-10-SC, in the subject proceedings; and (2) that the incident on the declaration of nullity of
marriage be already submitted for resolution.9 Conversely, private respondent prayed that the
incident on the declaration of nullity of marriage be resolved ahead of the incidents on custody,
support, and property relations, and not simultaneously.
Quite expectedly, petitioner opposed the Omnibus Motion, arguing that the issues that were the
subject of the Omnibus Motion had already been resolved in the March 21, 2007 Order.
Concurrently, petitioner prayed that the incidents on nullity, custody, support, and property relations
of the spouses be resolved simultaneously.10
In its Order dated August 4, 2008, the RTC-Branch 261 granted the Omnibus Motion. Judge ReyesCarpio explained that:
At the outset, the parties are reminded that the main cause of action in this case is the declaration of
nullity of marriage of the parties and the issues relating to property relations, custody and support
are merely ancillary incidents thereto.
xxxx
Consistent, therefore, with Section 19 of A.M. No. 02-11-10-SC, the Court finds it more prudent to
rule first on the petitioners petition and respondents counter-petition for declaration of nullity of
marriage on the ground of each others psychological incapacity to perform their respective marital
obligations. If the Court eventually finds that the parties respective petitions for declaration of nullity
of marriage is indeed meritorious on the basis of either or both of the parties psychological
incapacity, then the parties shall proceed to comply with Article[s] 50 and 51 of the Family Code
before a final decree of absolute nullity of marriage can be issued. Pending such ruling on the
declaration of nullity of the parties marriage, the Court finds no legal ground, at this stage, to
proceed with the reception of evidence in regard the issues on custody and property relations, since
these are mere incidents of the nullity of the parties marriage.11
On August, 28, 2008, petitioner moved for the reconsideration of the August 4, 2008 Order. On
October 24, 2008, Judge Reyes-Carpio issued an Order denying petitioners motion for
reconsideration. In denying the motion, Judge Reyes-Carpio reasoned:
x x x [I]t is very clear that what petitioner seeks to reconsider in the Courts Order dated August 4,
2008 is the procedure regarding the reception of evidence on the issues of property relations,
custody and support. He opposes the fact that the main issue on declaration of nullity is submitted
for decision when he has not yet presented evidence on the issues on property relations, custody
and support.
Considering that what he seeks to set aside is the procedural aspect of the instanct case, i.e. the
reception of evidence which is a matter of procedure, there is no question that it is A.M. 02-11-[10]SC which should be followed and not the procedures provided in Articles 50 and 51 of the Family
Code. While it is true that the Family Code is a substantive law and rule of procedure cannot alter a

substantive law, the provisions laid in Articles 50 and 51 relative to the liquidation and dissolution of
properties are by nature procedural, thus there are no substantive rights which may be prejudiced or
any vested rights that may be impaired.
In fact, the Supreme Court in a number of cases has even held that there are some provisions of the
Family Code which are procedural in nature, such as Article[s] 185 and 50 of the Family Code which
may be given retroactive effect to pending suits. Adopting such rationale in the instant case, if the
Court is to adopt the procedures laid down in A.M. No. 02-11-[10]-SC, no vested or substantive right
will be impaired on the part of the petitioner or the respondent. Even Section 17 of A.M. No. 02-11[10]-SC allows the reception of evidence to a commissioner in matters involving property relations of
the spouses.

B. Whether or not the [CA] committed grave abuse of discretion amounting to lack [or
excess] of jurisdiction in upholding the Respondent Judge in submitting the main issue of
nullity of marriage for resolution ahead of the reception of evidence on custody, support,
and property relations
C. Whether or not the reception of evidence on custody, support and property relations is
necessary for a complete and comprehensive adjudication of the parties respective
claims and [defenses].14
The Courts Ruling
We find the petition without merit.

xxxx
Lastly, it is the policy of the courts to give effect to both procedural and substantive laws, as
complementing each other, in the just and speedy resolution of the dispute between the parties.
Moreover, as previously stated, the Court finds it more prudent to rule first on the petitioners petition
and respondents counter-petition for declaration of nullity of marriage on the ground of each others
psychological incapacity to perform their respective marital obligations. If the Court eventually finds
that the parties respective petitions for declaration of nullity of marriage is indeed meritorious on the
basis of either or both of the parties psychological incapacity, then the parties shall proceed to
comply with Article[s] 50 and 51 of the Family Code before a final decree of absolute nullity of
marriage can be issued.12
The Ruling of the Appellate Court
On January 8, 2009, petitioner filed a Petition for Certiorari under Rule 65 with the CA, assailing
both the RTC Orders dated August 4, 2008 and October 24, 2008. The petition impleaded Judge
Reyes-Carpio as respondent and alleged that the latter committed grave abuse of discretion in the
issuance of the assailed orders.
On March 31, 2009, the CA affirmed the judgment of the trial court and dismissed the petition. The
dispositive portion of the CA Decision reads:
All told, absent any arbitrary or despotic exercise of judicial power as to amount to abuse of
discretion on the part of respondent Judge in issuing the assailed Orders, the instant petition for
certiorari cannot prosper.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.13
The Issues
This appeal is, hence, before Us, with petitioner maintaining that the CA committed grave abuse of
discretion in upholding the assailed orders issued by the trial court and dismissing the Petition for
Certiorari. Particularly, petitioner brings forth the following issues:
A. Whether or not the [CA] committed grave abuse of discretion amounting to lack of
jurisdiction in holding that a petition for certiorari is not a proper remedy of the Petitioner

A Petition for Certiorari under Rule 65 is the proper remedy in assailing that a judge has committed
grave abuse of discretion amounting to lack or excess of jurisdiction. Section 1, Rule 65 of the Rules
of Court clearly sets forth when a petition for certiorari can be used as a proper remedy:
SECTION 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasijudicial functions has acted without or in excess of its jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental
reliefs as law and justice may require. (Emphasis Ours.)
The term "grave abuse of discretion" has a specific meaning. An act of a court or tribunal can only
be considered as with grave abuse of discretion when such act is done in a "capricious or whimsical
exercise of judgment as is equivalent to lack of jurisdiction."15 The abuse of discretion must be so
patent and gross as to amount to an "evasion of a positive duty or to a virtual refusal to perform a
duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an
arbitrary and despotic manner by reason of passion and hostility."16Furthermore, the use of a petition
for certiorari is restricted only to "truly extraordinary cases wherein the act of the lower court or
quasi-judicial body is wholly void."17 From the foregoing definition, it is clear that the special civil
action of certiorari under Rule 65 can only strike an act down for having been done with grave abuse
of discretion if the petitioner could manifestly show that such act was patent and gross.18 But this is
not the case here.
Nowhere in the petition was it shown that the acts being alleged to have been exercised with grave
abuse of discretion(1) the Orders of the RTC deferring the presentation of evidence on custody,
support, and property relations; and (2) the appellate courts Decision of upholding the Orders
were patent and gross that would warrant striking down through a petition for certiorari under Rule
65.
At the very least, petitioner should prove and demonstrate that the RTC Orders and the CA Decision
were done in a capricious or whimsical exercise of judgment. 19 This, however, has not been shown
in the petition.

It appears in the records that the Orders in question, or what are alleged to have been exercised
with grave abuse of discretion, are interlocutory orders. An interlocutory order is one which "does not
finally dispose of the case, and does not end the Courts task of adjudicating the parties contentions
and determining their rights and liabilities as regards each other, but obviously indicates that other
things remain to be done by the Court."20 To be clear, certiorari under Rule 65 is appropriate to strike
down an interlocutory order only when the following requisites concur:

interlocutory in nature and may not be the subject of a separate appeal or review on certiorari. They
must be assigned as errors and reviewed in the appeal properly taken from the decision rendered by
the trial court on the merits of the case.

(1) when the tribunal issued such order without or in excess of jurisdiction or with grave
abuse of discretion; and

Here, petitioner assails the order of the trial court disallowing the admission in evidence of the
testimony of Roque on the opinion of the OGCC. By that fact alone, no grave abuse of discretion
could be imputed to the trial court. Furthermore, the said order was not an error of jurisdiction. Even
assuming that it was erroneous, the mistake was an error in judgment not correctable by the writ of
certiorari.23

(2) when the assailed interlocutory order is patently erroneous and the remedy of appeal
would not afford adequate and expeditious relief.21

Be that as it may, even dwelling on the merits of the case just as the CA has already done and
clearly explicated, We still find no reason to grant the petition.

In this case, as We have discussed earlier, petitioner failed to prove that the assailed orders were
issued with grave abuse of discretion and that those were patently erroneous. Considering that the
requisites that would justify certiorari as an appropriate remedy to assail an interlocutory order have
not been complied with, the proper recourse for petitioner should have been an appeal in due
course of the judgment of the trial court on the merits, incorporating the grounds for assailing the
interlocutory orders.22 The appellate court, thus, correctly cited Triplex Enterprises, Inc. v. PNBRepublic Bank and Solid Builders, Inc., penned by Chief Justice Renato Corona, which held:
Certiorari as a special civil action is proper when any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of its jurisdiction, or with grave abuse of
discretion, and there is no appeal nor any plain, speedy and adequate remedy at law. The writ may
be issued only where it is convincingly proved that the lower court committed grave abuse of
discretion, or an act too patent and gross as to amount to an evasion of a duty, or to a virtual refusal
to perform the duty enjoined or act in contemplation of law, or that the trial court exercised its power
in an arbitrary and despotic manner by reason of passion or personal hostility.
While certiorari may be maintained as an appropriate remedy to assail an interlocutory order in
cases where the tribunal has issued an order without or in excess of jurisdiction or with grave abuse
of discretion, it does not lie to correct every controversial interlocutory ruling. In this connection, we
quote with approval the pronouncement of the appellate court:
In this jurisdiction, there is an "erroneous impression that interlocutory [orders] of trial courts on
debatable legal points may be assailed by certiorari. To correct that impression and to avoid
clogging the appellate court with future certiorari petitions it should be underscored that the office of
the writ of certiorari has been reduced to the correction of defects of jurisdiction solely and cannot
legally be used for any other purpose."
The writ of certiorari is restricted to truly extraordinary cases wherein the act of the lower court or
quasi-judicial body is wholly void. Moreover, it is designed to correct errors of jurisdiction and not
errors in judgment. The rationale of this rule is that, when a court exercises its jurisdiction, an error
committed while so engaged does not deprive it of the jurisdiction being exercised when the error is
committed. Otherwise, every mistake made by a court will deprive it of its jurisdiction and every
erroneous judgment will be a void judgment.
When the court has jurisdiction over the case and person of the defendant, any mistake in the
application of the law and the appreciation of evidence committed by a court may be corrected only
by appeal. The determination made by the trial court regarding the admissibility of evidence is but an
exercise of its jurisdiction and whatever fault it may have perpetrated in making such a
determination is an error in judgment, not of jurisdiction. Hence, settled is the rule that rulings of the
trial court on procedural questions and on admissibility of evidence during the course of a trial are

It must be noted that Judge Reyes-Carpio did not disallow the presentation of evidence on the
incidents on custody, support, and property relations. It is clear in the assailed orders that the trial
court judge merely deferred the reception of evidence relating to custody, support, and property
relations, to wit:
August 4, 2008 Order
Consistent, therefore, with Section 19 of A.M. No. 02-11-10-SC, the Court finds it more prudent to
rule first on the petitioners petition and respondents counter-petition for declaration of nullity of
marriage on the ground of each others psychological incapacity to perform their respective marital
obligations. If the Court eventually finds that the parties respective petitions for declaration of nullity
of marriage is indeed meritorious on the basis of either or both of the parties psychological
incapacity, then the parties shall proceed to comply with Article[s] 50 and 51 of the Family Code
before a final decree of absolute nullity of marriage can be issued. Pending such ruling on the
declaration of nullity of the parties marriage, the Court finds no legal ground, at this stage, to
proceed with the reception of evidence in regard the issues on custody and property relations, since
these are mere incidents of the nullity of the parties marriage.24
October 24, 2008 Order
Lastly, it is the policy of the courts to give effect to both procedural and substantive laws, as
complementing each other, in the just and speedy resolution of the dispute between the parties.
Moreover, as previously stated, the Court finds it more prudent to rule first on the petitioners petition
and respondents counter-petition for declaration of nullity of marriage on the ground of each others
psychological incapacity to perform their respective marital obligations. If the Court eventually finds
that the parties respective petitions for declaration of nullity of marriage is indeed meritorious on the
basis of either or both of the parties psychological incapacity, then the parties shall proceed to
comply with Article (sic) 50 and 51 of the Family Code before a final decree of absolute nullity of
marriage can be issued.25
And the trial judges decision was not without basis. Judge Reyes-Carpio finds support in the Court
En Banc Resolution in A.M. No. 02-11-10-SC or the Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages. Particularly, Secs. 19 and 21 of the Rule clearly
allow the reception of evidence on custody, support, and property relations after the trial court
renders a decision granting the petition, or upon entry of judgment granting the petition:
Section 19. Decision. - (1) If the court renders a decision granting the petition, it shall declare
therein that the decree of absolute nullity or decree of annulment shall be issued by the court only

after compliance with Articles 50 and 51 of the Family Code as implemented under the Rule on
Liquidation, Partition and Distribution of Properties.

this decision is left to the trial courts wisdom and legal soundness. Consequently, therefore, the CA
cannot likewise be said to have committed grave abuse of discretion in upholding the Orders of
Judge Reyes-Carpio and in ultimately finding an absence of grave abuse of discretion on her part.

xxxx
Section 21. Liquidation, partition and distribution, custody, support of common children and delivery
of their presumptive legitimes. - Upon entry of the judgment granting the petition, or, in case of
appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family
Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the
properties of the spouses, including custody, support of common children and delivery of their
presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had
been adjudicated in previous judicial proceedings.
Evidently, Judge Reyes-Carpio did not deny the reception of evidence on custody, support, and
property relations but merely deferred it, based on the existing rules issued by this Court, to a time
when a decision granting the petition is already at hand and before a final decree is issued.
Conversely, the trial court, or more particularly the family court, shall proceed with the liquidation,
partition and distribution, custody, support of common children, and delivery of their presumptive
legitimes upon entry of judgment granting the petition. And following the pertinent provisions of the
Court En Banc Resolution in A.M. No. 02-11-10-SC, this act is undoubtedly consistent with Articles
50 and 51 of the Family Code, contrary to what petitioner asserts. Particularly, Arts. 50 and 51 of the
Family Code state:
Article 50. x x x
The final judgment in such cases shall provide for the liquidation, partition and distribution
of the properties of the spouses, the custody and support of the common children, and the
delivery of their presumptive legitimes, unless such matters had been adjudicated in the previous
judicial proceedings.
xxxx
Article 51. In said partition, the value of the presumptive legitimes of all common
children, computed as of the date of the final judgment of the trial court, shall be delivered in
cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had
already provided for such matters. (Emphasis Ours.)
Finally, petitioner asserts that the deferment of the reception of evidence on custody, support, and
property relations would amount to an ambiguous and fragmentary judgment on the main
issue.26 This argument does not hold water. The Court En Banc Resolution in A.M. No. 02-11-10-SC
clearly allows the deferment of the reception of evidence on custody, support, and property relations.
Conversely, the trial court may receive evidence on the subject incidents after a judgment granting
the petition but before the decree of nullity or annulment of marriage is issued. And this is what
Judge Reyes-Carpio sought to comply with in issuing the assailed orders. As correctly pointed out
by the CA, petitioners assertion that ruling the main issue without receiving evidence on the subject
incidents would result in an ambiguous and fragmentary judgment is certainly speculative and,
hence, contravenes the legal presumption that a trial judge can fairly weigh and appraise the
evidence submitted by the parties.271wphi1
Therefore, it cannot be said at all that Judge Reyes-Carpio acted in a capricious and whimsical
manner, much less in a way that is patently gross and erroneous, when she issued the assailed
orders deferring the reception of evidence on custody, support, and property relations. To reiterate,

WHEREFORE, the petition is DISMISSED. The CA Decision in CA-G.R. SP No. 106878 finding that
Judge Agnes Reyes-Carpio did not commit grave abuse of discretion amounting to lack or excess of
jurisdiction is AFFIRMED.

G.R. No. L-53880 March 17, 1994

ENRICO L. PACETE, CLARITA DE LA CONCEPCION, EMELDA C. PACETE, EVELINA C.
PACETE and EDUARDO C. PACETE, petitioners,
vs.
HON. GLICERIO V. CARRIAGA, JR. and CONCEPCION (CONCHITA) ALANIS
PACETE, respondents.

The plaintiff thereupon filed a motion to declare the defendants in default, which the court forthwith
granted. The plaintiff was then directed to present her evidence. 2 The court received plaintiff's
evidence during the hearings held on 15, 20, 21 and 22 February 1980.
On 17 March 1980, the court 3 promulgated the herein questioned decision, disposing of the case,
thus
WHEREFORE, order is hereby issued ordering:

Juan G. Sibug and Rodolfo B. Quiachon for petitioners.

Julio F. Andres, Jr. for private respondent.

VITUG, J.:
The issue in this petition for certiorari is whether or not the Court of First Instance (now Regional
Trial Court) of Cotabato, Branch I, in Cotabato City, gravely abused its discretion
in denying petitioners' motion for extension of time to file their answer in Civil Case No. 2518,
in declaring petitioners in default and in rendering its decision of 17 March 1980 which, among other
things, decreed the legal separation of petitioner Enrico L. Pacete and private respondent
Concepcion Alanis and held to be null and void ab initio the marriage of Enrico L. Pacete to Clarita
de la Concepcion.
On 29 October 1979, Concepcion Alanis filed with the court below a complaint for the declaration of
nullity of the marriage between her erstwhile husband Enrico L. Pacete and one Clarita de la
Concepcion, as well as for legal separation (between Alanis and Pacete), accounting and separation
of property. In her complaint, she averred that she was married to Pacete on 30 April 1938 before
the Justice of the Peace of Cotabato, Cotabato; that they had a child named Consuelo who was
born on 11 March 1943; that Pacete subsequently contracted (in 1948) a second marriage with
Clarita de la Concepcion in Kidapawan, North Cotabato; that she learned of such marriage only on
01 August 1979; that during her marriage to Pacete, the latter acquired vast property consisting of
large tracts of land, fishponds and several motor vehicles; that he fraudulently placed the several
pieces of property either in his name and Clarita or in the names of his children with Clarita and
other "dummies;" that Pacete ignored overtures for an amicable settlement; and that reconciliation
between her and Pacete was impossible since he evidently preferred to continue living with Clarita.
The defendants were each served with summons on 15 November 1979. They filed a motion for an
extension of twenty (20) days from 30 November 1979 within which to file an answer. The court
granted the motion. On 18 December 1979, appearing through a new counsel, the defendants filed
a second motion for an extension of another thirty (30) days from 20 December 1979. On 07
January 1980, the lower court granted the motion but only for twenty (20) days to be counted from
20 December 1979 or until 09 January 1980. The Order of the court was mailed to defendants'
counsel on 11 January 1980. Likely still unaware of the court order, the defendants, on 05 February
1980, again filed another motion (dated 18 January 1980) for an extension of "fifteen (15) days
counted from the expiration of the 30-day period previously sought" within which to file an answer.
The following day, or on 06 February 1980, the court denied this last motion on the ground that it
was "filed after the original period given . . . as first extension had expired." 1

1. The issuance of a Decree of Legal Separation of the marriage between, the

plaintiff, Concepcion (Conchita) Alanis Pacete and the herein defendants,
Enrico L. Pacete, in accordance with the Philippine laws and with
consequences, as provided for by our laws;
2. That the following properties are hereby declared as the conjugal properties
of the partnership of the plaintiff, Concepcion (Conchita) Alanis Pacete and the
defendant, Enrico L. Pacete, half and half, to wit:
1. The parcel of land covered by TCT No. V-815 which is a parcel of land
situated in the barrio of Langcong, Municipality of Matanog (previously of
Parang), province of Maguindanao (previously of Cotabato province) with an
area of 45,265 square meters registered in the name of Enrico Pacete, Filipino,
of legal age, married to Conchita Alanis as shown in Exhibits "B" and "B-1" for
the plaintiff.
X
by TurboMac
2. A parcel of land covered by Transfer Certificate of Title No. T-20442, with an
area of 538 square meters and covered by Tax Declaration No. 2650 (74) in the
name of Enrico Pacete, situated in the Poblacion of Kidapawan, North
Cotabato, together with all its improvements, which parcel of land, as shown by
Exhibits "K-1" was acquired by way of absolute deed of sale executed by
Amrosio Mondog on January 14, 1965.
3. A parcel of land covered by Transfer Certificate of Title No. T-20424 and
covered by Tax Declaration No. 803 (74), with an area of 5.1670 hectares, more
or less, as shown by Exhibit "R", the same was registered in the name of Enrico
Pacete and the same was acquired by Enrico Pacete last February 17, 1967
from Ambag Ampoy, as shown by Exhibit "R-1", situated at Musan, Kidapawan,
North Cotabato.
4. A parcel of land situated at Lanao, Kidapawan, North Cotabato, with an area
of 5.0567 hectares, covered by Tax Declaration No. 4332 (74), as shown by
Exhibit "S", and registered in the name of Enrico Pacete.
5. A parcel of land covered by Transfer Certificate of Title No. T-9750, situated
at Lika, Mlang, North Cotabato, with an area of 4.9841 hectares and the same
is covered by Tax Declaration No. 803 (74) and registered in the name of Enrico

Pacete and which land was acquired by Enrico Pacete from Salvador Pacete on
September 24, 1962, as shown by Exhibit "Q-1".
6. A parcel of land covered by Transfer Certificate of Title No. T-9944, with an
area of 9.9566 and also covered by Tax Declaration No. 8608 (74) and
registered in the name of the defendant Enrico L. Pacete which Enrico L.
Pacete acquired from Sancho Balingcos last October 22, 1962, as shown by
Exhibit "L-1" and which parcel of land is situated at (Kialab), Kiab, Matalam,
North Cotabato.
7. A parcel of land covered by Transfer Certificate of Title No. T-9227, situated
at Kiab, Matalam, North Cotabato, with an area of 12.04339 hectares, more or
less, and also covered by Tax Declaration No. 8607 (74) both in the name of the
defendant Enrico L. Pacete which he acquired last October 15, 1962 from
Minda Bernardino, as shown by Exhibit "M-1".
8. A parcel of land covered by Transfer Certificate of Title No. T-9228, situated
at Kiab, Matalam, North Cotabato, with an area of 10.8908 hectares, registered
in the name of Enrico Pacete and also covered by Tax Declaration No. 5781
(74) in the name of Enrico Pacete and which parcel of land he acquired last
September 25, 1962 from Conchita dela Torre, as shown by Exhibit "P-1".
9. A parcel of land covered by Transfer Certificate of Title No. T-10301, situated
at Linao, Matalam, North Cotabato, with an area of 7.2547 hectares, registered
in the name of Enrico Pacete and also covered by Tax Declaration No. 8716
(74) also in the name of Enrico Pacete which Enrico Pacete acquired from
Agustin Bijo last July 16, 1963, as shown by Exhibit "N-1".
10. A parcel of land covered by Transfer Certificate of Title No. 12728 in the
name of the defendant, Enrico L. Pacete, with an area of 10.9006 hectares,
situated at Linao, Matalam, North Cotabato and is also covered by Tax
Declaration No. 5745 (74) in the name of Enrico Pacete, as shown on Exhibit
"O" and which Enrico Pacete acquired last December 31, 1963 from Eliseo
Pugni, as shown on Exhibit "0-1".
3. Ordering the Cancellation of Original Certificate of Title No. P-34243 covering
Lot No. 1066, issued in the name of Evelina Pacete, situated at Kiab, Matalam,
North Cotabato, and ordering the registration of the same in the joint name of
Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete as their conjugal
property, with address on the part of Concepcion (Conchita) Alanis Pacete at
Parang, Maguindanao and on the part of Enrico L. Pacete at Kidapawan, North
Cotabato.
4. Ordering likewise the cancellation of Original Certificate of Title No. V-20101,
covering Lot No. 77, in the name of Eduardo C. Pacete, situated at New
Lawaan, Mlang, North Cotabato, and the issuance of a new Transfer Certificate
of Title in the joint name of (half and half) Concepcion (Conchita) Alanis Pacete
and Enrico L. Pacete.
5. Ordering likewise the cancellation of Original Certificate of Title No. P-29890,
covering Lot 1068, situated at Kiab, Matalam, North Cotabato, with an area of
12.1031 hectares, in the name of Emelda C. Pacete and the issuance of a new
Transfer Certificate of Title in the joint name (half and half) of Concepcion

(Conchita) Alanis Pacete and Enrico L. Pacete; and declaring that the fishpond
situated at Barrio Tumanan, Bislig, Surigao Del Sur, with an area of 48 hectares
and covered by Fishpond Lease Agreement of Emelda C. Pacete, dated July
29, 1977 be cancelled and in lieu thereof, the joint name of Concepcion
(Conchita) Alanis Pacete and her husband, Enrico L. Pacete, be registered as
their joint property, including the 50 hectares fishpond situated in the same
place, Barrio Timanan, Bislig, Surigao del Sur.
6. Ordering the following motor vehicles to be the joint properties of the conjugal
partnership of Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete, viz:
a. Motor vehicle with Plate No. T-RG-783; Make, Dodge; Motor No. T13720561; Chassis No. 83920393, and Type, Mcarrier;
b. Motor vehicle with Plate No. T-RG-784; Make, Dodge; Motor No. T214229547; Chassis No. 10D-1302-C; and Type, Mcarrier;
c. Motor vehicle with Plate No. J-PR-818; Make, Ford; Motor No. GRW-116188;
Chassis No. HOCC-GPW-1161-88-C; Type, Jeep;
d. Motor vehicle with Plate No. TH-5J-583; Make, Ford: Motor No. F70MU511111; Chassis No. HOCC-GPW-1161188-G; Type, Stake;
e. Motor vehicle with Plate No. TH-5J-584; Make, Hino; Motor No. ED30045758; Chassis No. KB222-22044; Type, Stake; and
f. Motor vehicle with Plate No. TH-5J-585; Make, Ford: Motor No. LTC-780-Dv;
Chassis No. 10F-13582-K; Type, Stake.
7. Ordering the defendant Enrico L. Pacete to pay the plaintiff the sum of
P46,950.00 which is the share of the plaintiff in the unaccounted income of the
ricemill and corn sheller for three years from 1971 to 1973.
8. Ordering the defendant, Enrico L. Pacete, to reimburse the plaintiff the
monetary equipment of 30% of whether the plaintiff has recovered as attorney's
fees;
9. Declaring the subsequent marriage between defendant Enrico L. Pacete and
Clarita de la Concepcion to be void ab initio; and
10. Ordering the defendants to pay the costs of this suit. 4
Hence, the instant special civil action of certiorari.
Under ordinary circumstances, the petition would have outrightly been dismissed, for, as also
pointed out by private respondents, the proper remedy of petitioners should have instead been
either to appeal from the judgment by default or to file a petition for relief from judgment. 5 This rule,
however, is not inflexible; a petition for certiorari is allowed when the default order
is improperly declared, or even when it is properly declared, where grave abuse of discretion
attended such declaration. 6 In these exceptional instances, the special civil action of certiorari to

declare the nullity of a judgment by default is available. 7 In the case at bench, the default order
unquestionably is not legally sanctioned. The Civil Code provides:
Art. 101. No decree of legal separation shall be promulgated upon a stipulation
of facts or by confession of judgment.
In case of non-appearance of the defendant, the court shall order the
prosecuting attorney to inquire whether or not a collusion between the parties
exists. If there is no collusion, the prosecuting attorney shall intervene for the
State in order to take care that the evidence for the plaintiff is not fabricated.
The provision has been taken from Article 30 of the California Civil Code, 8 and it is, in substance,
reproduced in Article 60 of the Family Code. 9
Article 101 reflects the public policy on marriages, and it should easily explain the mandatory tenor
of the law. InBrown v. Yambao, 10 the Court has observed:
The policy of Article 101 of the new Civil Code, calling for the intervention of the
state attorneys in case of uncontested proceedings for legal separation (and of
annulment of marriages, under Article 88), is to emphasize that marriage is
more than a mere contract; that it is a social institution in which the state is
vitally interested, so that its continuation or interruption can not be made to
depend upon the parties themselves (Civil Code, Article 52; Adong vs. Cheong
Gee, 43 Phil. 43; Ramirez v. Gmur, 42 Phil. 855; Goitia v. Campos, 35 Phil.
252). It is consonant with this policy that the inquiry by the Fiscal should be
allowed to focus upon any relevant matter that may indicate whether the
proceedings for separation or annulment are fully justified or not.
Article 103 of the Civil Code, now Article 58 of the Family Code, further mandates that an action for
legal separation must "in no case be tried before six months shall have elapsed since the filing of the
petition," obviously in order to provide the parties a "cooling-off" period. In this interim, the court
should take steps toward getting the parties to reconcile.
The significance of the above substantive provisions of the law is further underscored by the
inclusion of the following provision in Rule 18 of the Rules of Court:
Sec. 6. No defaults in actions for annulments of marriage or for legal separation.
If the defendant in an action for annulment of marriage or for legal separation
fails to answer, the court shall order the prosecuting attorney to investigate
whether or not a collusion between the parties exists, and if there is no
collusion, to intervene for the State in order to see to it that the evidence
submitted is not fabricated.
The special prescriptions on actions that can put the integrity of marriage to possible jeopardy are
impelled by no less than the State's interest in the marriage relation and its avowed intention not to
leave the matter within the exclusive domain and the vagaries of the parties to alone dictate.
It is clear that the petitioner did, in fact, specifically pray for legal separation. 11 That other remedies,
whether principal or incidental, have likewise been sought in the same action cannot dispense, nor
excuse compliance, with any of the statutory requirements aforequoted.

WHEREFORE, the petition for certiorari is hereby GRANTED and the proceedings below, including
the Decision of 17 March 1980 appealed from, are NULLIFIED and SET ASIDE. No costs.

G.R. No. L-33352 December 20, 1974

TEODORO E. LERMA, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and CONCEPCION DIAZ, respondents.
MAKALINTAL, C.J.:p
Before Us for resolution are: (1) the petition for review by certiorari filed by Teodoro E. Lerma on
March 21, 1971 to set aside the resolution of the respondent Court of Appeals in CA-G.R. No.
44906-R dismissing his petition for certiorari and prohibition with preliminary injunction filed therein;
and (2) the petitioner's motion for reconsideration of our resolution dated February 8, 1974 denying
his urgent motion for the issuance of a writ of preliminary injunction and/or restraining order to enjoin
the enforcement of certain orders of the Juvenile and Domestic Relations Court of Quezon City
(hereinafter referred to as the lower court) ordering the petitioner to pay support pendente lite to
Concepcion Diaz, the private respondent herein.
Petitioner Lerma and respondent Diaz are husband and wife. They married on May 19, 1951. On
August 22, 1969 the petitioner filed a complaint for adultery against the respondent and a certain
Teodoro Ramirez (Crim. Case No. 0519 of the Court of First Instance of Rizal). On November 18,
1969 the respondent filed with the lower court, presided by Judge Leonor Ines Luciano, a
complaint 1 against the petitioner for legal separation and/or separation of properties, custody of their
children 2 and support, with an urgent petition for support pendente lite for her and their youngest
son, Gregory, who was then and until now is in her custody. The respondent's complaint for legal
separation is based on two grounds: concubinage and attempt against her life.
The petitioner filed his opposition to the respondent's application for support pendente lite, setting up
as defense the adultery charge he had filed against the respondent. Judge Luciano granted the
respondent's application for support pendente lite in an order dated December 24, 1969, which she
amended in an order dated February 15, 1970 to the following effect: (1) the respondent was
declared entitled to support pendente lite from the date of the filing of the complaint; and (2) the
amount of such monthly support was reduced from P2,250.00 to P1,820.00.
On March 12, 1970 the petitioner filed with respondent Court of Appeals a petition for certiorari and
prohibition with preliminary injunction to annul the aforementioned orders on the ground that they
were issued with grave abuse of discretion. The next day the respondent court gave due course to
the petition and issued a writ of preliminary injunction to stop Judge Luciano from enforcing said
orders.

urgent motion praying that the petitioner be ordered to pay the awarded support pendente lite, both
current and in arrears, on the ground that in the absence of an injunction from this Court the
assailed orders should be executed; (3) that the petitioner filed his opposition to the motion, pointing
out that for the previous three years the respondent did not ask for the enforcement of the orders
and her belated move came only "after petitioner had filed new adultery charges against her and her
second paramour" and after the petitioner had sought custody of their son Gregory; (4) that in
connection with the first adultery charge, the respondent and her co-accused, Teddy Ramirez, had
been convicted by the Court of First Instance of Rizal in its decision rendered on September 26,
1972 and said judgment of conviction was pending appeal in the Court of Appeals; (5) that Judge
Luciano issued an order dated January 19, 1974, ordering the petitioner to pay the respondent the
awarded support pendente lite within 15 days; and (6) that unless the lower court was enjoined from
enforcing its assailed orders, the present petition would be rendered moot and academic, to the
prejudice of the petitioner.
On January 28, 1974 this Court, acting on the petitioner's motion, resolved "to issue a temporary
restraining order effective immediately and until further orders from this Court." The order was
addressed to Judge Luciano, her agents and representatives. Required to comment on the
petitioner's urgent motion for preliminary injunction, the respondent filed an opposition, with a prayer
for the immediate lifting of the temporary restraining order issued ex-parte. The opposition reiterated
the grounds of her motion dated December 5, 1973 filed in the lower court, to wit: (1) that an order
granting supportpendente lite, although interlocutory, is immediately executory even if appealed,
unless enjoined; (2) that the dismissal of the petition by the respondent Court of Appeals
rendered functus oficio the writ of preliminary injunction it had previously issued; and (3) that under
Article 292 of the New Civil Code, which provides that "during the proceedings for legal separation,
or for annulment of marriage, the spouses and children shall be supported from the conjugal
partnership property ...," such support is mandatory even if there be a showing that the wife is guilty
of adultery.
In a minute resolution dated February 8, 1974 We denied the petitioner's urgent motion for a writ of
preliminary injunction. On February 28, 1974 the petitioner filed this instant motion for
reconsideration. On March 6, 1974 We issued another resolution setting aside the resolution of
February 8, 1974 and reinstated the temporary restraining order previously issued until further
orders. On the same day the respondent filed her opposition to the motion for reconsideration and
later asked that it be set for oral argument. The petitioner's pending motion was set for hearing on
April 22, 1974 and then reset for May 20, 1974. On the latter date counsel for both parties appeared.
In lieu, however, of oral argument the Court allowed them to file memoranda.
The petition assails the resolution of the respondent Court of Appeals on two main grounds:
I.

IT IS ERROR FOR THE COURT OF APPEALS TO HOLD THAT THE

LOWER COURT, IN GRANTING SUPPORT PENDENTE LITE TO
RESPONDENT CONCEPCION DIAZ, DID NOT COMMIT A GRAVE
ABUSE OF DISCRETION.

II.

II. THE COURT OF APPEALS ERRED IN HOLDING THAT THE

PROVISIONS OF ARTICLE 292 OF THE CIVIL CODE MAKE IT
MANDATORY DURING THE PENDENCY OF LEGAL SEPARATION
PROCEEDINGS TO GRANT SUPPORT PENDENTE LITE TO
HEREIN RESPONDENT.

The respondent court, in its decision of October 8, 1970, set aside the assailed orders and granted
the petitioner an opportunity to present evidence before the lower court in support of his defense
against the application for supportpendente lite.
The respondent moved to reconsider the decision on the ground that the petitioner had not asked
that he be allowed to present evidence in the lower court. The respondent court, in its resolution of
January 20, 1971, set aside the decision of October 8 and rendered another, dismissing the petition.
This is now the subject of the instant proceeding for review.
On January 23, 1974 the petitioner filed an urgent motion for a writ of preliminary injunction and/or
restraining order, alleging (1) that during the pendency of this appeal and until December 5, 1973
the respondent had never sought the enforcement of the assailed orders of the lower court granting
support pendente lite; (2) that on December 5, 1973 the respondent filed with the lower court an

The foregoing alleged errors refer to the two aspects, procedural and substantive, of the disputed
orders granting support pendente lite.

As correctly stated by the respondent court in its decision (which was later reconsidered in its
resolution under review), the procedural law on support pendente lite is Rule 61 of the Revised
Rules of Court, specifically Section 5 thereof, which partly provides:
The court shall determine provisionally the pertinent facts, and shall render such
order as equity and justice may require, having due regard to the necessities of
the applicant, the means of the adverse party, the probable outcome of the
case, and such other circumstances as may aid in the proper elucidation of the
questions involved. ...
The petitioner maintains that the above-quoted provision was disregarded by the lower court when it
issued the disputed orders without provisionally determining the pertinent facts of the case,
particularly insofar as they might have a bearing on its probable outcome, merely relying on the bare
allegations of the complaint. The petitioner also claims he was deprived of the opportunity to present
evidence in support of his defense of adultery against the respondent's application for
support pendente lite.
The question of whether or not the petitioner should be allowed to present evidence in the lower
court in support of that his wife had committed adultery has become academic. The petitioner, in his
motion filed February 28, 1974 for reconsideration of the denial by this Court of his petition for
preliminary injunction, manifested that on September 26, 1972 the court of First Instance of Rizal
decided the adultery case of the respondent and found her and her co-accused, Teodoro Ramirez,
guilty of the charge, sentencing them to a term of imprisonment. This has not been denied by the
respondent. Neither is it denied that on March 30, 1970, as a result of the adulterous relations with
Teodoro Ramirez for which she was later on convicted, the said respondent gave birth prematurely
to a baby boy, who however died the same day. When the respondent entered the hospital for
delivery, she registered under the assumed name of "Gloria Santos," and when the child died had it
falsely identified in the death certificate as the child of one Rosario R. Salita, a close friend of hers.
For the falsification thus committed Rosario E. Salita was criminally charged and convicted, although
the respondent herself was acquitted on reasonable doubt. The petitioner's motion of February 28
also states, without denial on the part of the respondent, that after Teodoro Ramirez another man,
this time a Manila policeman by the name of Jose Gochangco, became her paramour, as a
consequence of which criminal charges of adultery have been filed against them before the Fiscal of
Manila. Photographs of the two, showing them in intimate pose, were submitted to this Court. Their
veracity has not been disputed.
The legal issue posed by the foregoing facts is whether adultery is a good defense against the
respondent's claim for support pendente lite. In Quintana v. Lerma, 24 Phil. 285, which was an
action by the wife against the husband for support, based upon a written contract, this Court held
that adultery is a good defense. This ruling was reiterated in the subsequent cases of Sanchez v.
Zulueta, 68 Phil. 110, and Mangoma v. Macadaeg, et al., 90 Phil. 508. See also Olayvar v. Olayvar,
98 Phil. 52.
The respondent Court of Appeals, in upholding the questioned orders of the lower court, relied on
Article 292 of the Civil Code, which reads:
ART. 292. During the proceedings for legal separation, or for annulment of
marriage, the spouses and children shall be supported from the conjugal
partnership property. After the final judgment of legal separation, or of
annulment of marriage, the obligation of mutual support between the spouses
ceases. However, in case of legal separation, the court may order that the guilty
spouse shall give support to the innocent one, the judgment specifying the
terms of such order.

It is suggested that while adultery may be a defense in an action for personal support, that is,
support of the wife by the husband from his own funds, it is not a defense when the support is to be
taken from the conjugal partnership property.
We do not see that the distinction is material in this case. In the first place Article 292 is not in itself
the source of the legal right to receive support. It merely states that the support, not only of the
spouses but also of the children, shall be taken from the conjugal property during the pendency of
the legal separation proceeding. It does not preclude the loss of such right in certain cases. In the
second place, the said article contemplates the pendency of a court action and, inferentially at least,
a prima facie showing that the action will prosper. For if the action is shown to be groundless the
mere filing thereof will not necessarily set Article 292 in operation. This is also the sense of Section 5
of Rule 61, supra, which requires, among other things, when support pendente lite is applied for, that
the court determine provisionally "the probable outcome of the case."
Article 100 of the Civil Code provides that "the legal separation may be claimed only by the innocent
spouse, provided there has been no condonation of or consent to the adultery or concubinage ...
(and) where both spouses are offenders, a legal separation cannot be claimed by either of them ..."
In a provisional sense at least, within the meaning of Rule 61 (Section 5), the probable failure of the
respondent's suit for legal separation can be foreseen since she is not an innocent spouse, having
been convicted of adultery by the Court of First Instance. It is true that the judgment of conviction is
on appeal in the Court of Appeals, but the same undoubtedly satisfies the standard of provisional
showing set by the aforesaid Rule. If legal separation cannot be claimed by the guilty spouse in the
first place, the fact that an action for that purpose is filed anyway should not be permitted to be used
as a means to obtain support pendente lite, which, without such action, would be denied on the
strength of the decisions of this Court recognizing adultery as a good defense. Otherwise, as
pointed out by the petitioner, all that an erring spouse has to do to circumvent such defense would
be to file a suit for legal separation no matter how groundless.
The right to separate support or maintenance, even from the conjugal partnership property,
presupposes the existence of a justifiable cause for the spouse claiming such right to live separately.
This is implicit in Article 104 of the Civil Code, which states that after the filing of the petition for legal
separation the spouses shall be entitled to live separately from each other. A petition in bad faith,
such as that filed by one who is himself or herself guilty of an act which constitutes a ground for
legal separation at the instance of the other spouse, cannot be considered as within the intendment
of the law granting separate support. In fact under Article 303 of the same Code the obligation to
give support shall cease "when the recipient, be he a forced heir or not, has committed some act
which gives rise to disinheritance;" and under Article 921 one of the causes for disinheriting a
spouse is "when the spouse has given cause for legal separation." The loss of the substantive right
to support in such a situation is incompatible with any claim for support pendente lite.
What has been said above, of course, is not meant to be a prejudgment of either the legal
separation proceeding pending in the lower court or the criminal case for adultery pending in the
Court of Appeals. It is to be understood only in the light of Rule 61, Section 5, of the Rules of Court,
which specifically governs the subject of supportpendente lite.
WHEREFORE, the resolution of respondent Court of Appeals of January 20, 1971 and the orders of
respondent Juvenile and Domestic Relations Court herein complained of, dated December 24, 1969
and February 15, 1970, all are set aside and their enforcement enjoined, without prejudice to such
judgment as may be rendered in the pending action for legal separation between the parties. No
pronouncement as to costs.
G.R. No. 106169 February 14, 1994

SAMSON T. SABALONES, petitioner,

vs.
THE COURT OF APPEALS and REMEDIOS GAVIOLA-SABALONES, respondents.
Leven S. Puno for petitioner.

properties in the United States in favor of his paramour, to the prejudice of his legitimate wife and
children.
The petitioner opposed this motion and filed his own motion to prevent his wife from entering into a
new contract of lease over the Forbes Park property with its present tenant, or with future tenants,
without his consent.

Benigno M. Puno for private respondent.

After hearing, the Court of Appeals, in an order dated April 7, 1992, granted the preliminary
injunction prayed for by his wife. 2
CRUZ, J.:
The subject of this petition is the preliminary injunction issued by the respondent court pending
resolution of a case on appeal. We deal only with this matter and not the merits of the case.
As a member of our diplomatic service assigned to different countries during his successive tours of
duties, petitioner Samson T. Sabalones left to his wife, herein respondent Remedios GaviolaSabalones, the administration of some of their conjugal, properties for fifteen years.
Sabalones retired as ambassador in 1985 and came back to the Philippines but not to his wife and
their children. Four years later, he filed an action for judicial authorization to sell a building and lot
located at
#17 Eisenhower St., Greenhills, San Juan, Metro Manila, belonging to the conjugal partnership. He
claimed that he was sixty-eight years old, very sick and living alone without any income, and that his
share of the proceeds of the sale to defray the prohibitive cost of his hospitalization and medical
treatment.
In her answer, the private respondent opposed the authorization and filed a counterclaim for legal
separation. She alleged that the house in Greenhills was being occupied by her and their six
children and that they were depending for their support on the rentals from another conjugal
property, a building and lot in Forbes Park which was on lease to Nobumichi Izumi. She also
informed the court that despite her husband's retirement, he had not returned to his legitimate family
and was instead maintaining a separate residence in Don Antonio Heights, Fairview, Quezon City,
with Thelma Cumareng and their three children.
In her prayer, she asked the court to grant the decree of legal separation and order the liquidation of
their conjugal properties, with forfeiture of her husband's share therein because of his adultery. She
also prayed that it enjoin the petitioner and his agents from a) disturbing the occupants of the Forbes
Park property and b) disposing of or encumbering any of the conjugal properties.
After trial, Judge Mariano M. Umali, found that the petitioner had indeed contracted a bigamous
marriage on October 5, 1981, with Thelma Cumareng, to whom he had returned upon his retirement
in 1985 at a separate residence. The court thus decreed the legal separation of the spouses and the
forfeiture of the petitioner's share in the conjugal properties, declaring as well that he was not
entitled to support from his respondent wife. 1
This decision was appealed to the respondent court. Pendente lite, the respondent wife filed a
motion for the issuance of a writ of preliminary injunction to enjoin the petitioner from interfering with
the administration of their properties in Greenhills and Forbes Park. She alleged inter alia that he
had harassed the tenant of the Forbes Park property by informing him that his lease would not be
renewed. She also complained that the petitioner had disposed of one of their valuable conjugal

The petitioner now assails this order, arguing that since the law provides for a joint administration of
the conjugal properties by the husband and wife, no injunctive relief can be issued against one or
the other because no right will be violated. In support of this contention, he cites Art. 124 of the
Family Code, reading as follows:
Art. 124. The administration and enjoyment of the conjugal partnership property
shall belong to both spouses jointly. In case of disagreement, the husband's
decision shall prevail, subject to recourse to the court by the wife for proper
remedy, which must be availed of within five years from the date of the contract
implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to participate
in the administration of the conjugal properties, the other spouse may assume
sole powers of the administration. These powers do not include disposition or
encumbrance without authority of the court or the written consent of the other
spouse. In the absence of such authority or consent, the disposition or
encumbrance shall be void. However, the transaction shall be construed and
the third person, and may be perfected as a binding contract upon the
acceptance by the other spouse or the authorization by the court before the
offer is withdrawn by either or both offerors.
He further notes that the respondent court failed to appoint an administrator of the conjugal assets
as mandated by Art. 61 of the Code, thus:
Art. 61 After the filing of the petition for legal separation, the spouses shall be
entitled to live separately from each other.
The court, in the absence of a written agreement between the spouses, shall
designate either of them or a third person to administer the absolute community
or conjugal partnership property. The administrator appointed by the court shall
have the same powers and duties as those of a guardian under the Rules of
Court.
The Court has carefully considered the issues and the arguments of the parties and finds that the
petition has no merit.
We agree with the respondent court that pending the appointment of an administrator over the whole
mass of conjugal assets, the respondent court was justified in allowing the wife to continue with her
administration. It was also correct, taking into account the evidence adduced at the hearing, in
enjoining the petitioner from interfering with his wife's administration pending resolution of the
appeal.

The law does indeed grant to the spouses joint administration over the conjugal properties as clearly
provided in the above-cited Article 124 of the Family Code. However, Article 61, also above quoted,
states that after a petition for legal separation has been filed, the trial court shall, in the absence of a
written agreement between the couple, appoint either one of the spouses or a third person to act as
the administrator.
While it is true that no formal designation of the administrator has been made, such designation was
implicit in the decision of the trial court denying the petitioner any share in the conjugal properties
(and thus also disqualifying him as administrator thereof). That designation was in effect approved
by the Court of Appeals when it issued in favor of the respondent wife the preliminary injunction now
under challenge.
The primary purpose of the provisional remedy of injunction is to preserve the status quo of the
things subject of the action or the relations between the parties and thus protect the rights of the
plaintiff respecting these matters during the pendency of the suit. Otherwise, the defendant may,
before final judgment, do or continue doing the act which the plaintiff asks the court to restrain and
thus make ineffectual the final judgment that may be rendered afterwards in favor of the plaintiff. 3
As observed by Francisco, "Injunction is primarily a preventive remedy. Its province is to afford relief
against future acts which are against equity and good conscience and to keep and preserve the
thing in the status quo, rather than to remedy what is past or to punish for wrongful acts already
committed. It may issue to prevent future wrongs although no right has yet been violated." 4
The Court notes that the wife has been administering the subject properties for almost nineteen
years now, apparently without complaint on the part of the petitioner. He has not alleged, much less
shown, that her administration has caused prejudice to the conjugal partnership. What he merely
suggests is that the lease of the Forbes Park property could be renewed on better terms, or he
should at least be given his share of the rentals.
In her motion for the issuance of a preliminary injunction, the respondent wife alleged that the
petitioner's harassment of their tenant at Forbes Park
would jeopardize the lease and deprive her and her children of the income therefrom on which they
depend for their subsistence. She also testified the numerous . . . including various dollar accounts,
two houses in Quezon City and Cebu City, and a Mercedes Benz. The private respondent also
complained that on June 10, 1991, the petitioner executed a quitclaim over their conjugal property in
Apple Valley, San Bernardino, California, U.S.A., in favor of Thelma Cumareng, to improve his
paramour's luxurious lifestyle to the prejudice of his legitimate family.
These allegations, none of which was refuted by the husband, show that the injunction is necessary
to protect the interests of the private respondent and her children and prevent the dissipation of the
conjugal assets.
The twin requirements of a valid injunction are the existence of a right and its actual or threatened
violation. 5Regardless of the outcome of the appeal, it cannot be denied that as the petitioner's
legitimate wife (and the complainant and injured spouse in the action for legal separation), the
private respondent has a right to a share (if not the whole) of the conjugal estate. There is also, in
our view, enough evidence to raise the apprehension that entrusting said estate to the petitioner
may result in its improvident disposition to the detriment of his wife and children. We agree that
inasmuch as the trial court had earlier declared the forfeiture of the petitioner's share in the conjugal
properties, it would be prudent not to allow him in the meantime to participate in its management.
Let it be stressed that the injunction has not permanently installed the respondent wife as the
administrator of the whole mass of conjugal assets. It has merely allowed her to continue

administering the properties in the meantime without interference from the petitioner, pending the
express designation of the administrator in accordance with Article 61 of the Family Code.
WHEREFORE, the petition is DENIED for lack of merit. It is so ordered.

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

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

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

Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an order, dated 29
July 1969, of the Juvenile and Domestic Relations Court of Manila, in its Civil Case No. 20387,
dismissing said case for legal separation on the ground that the death of the therein plaintiff,
Carmen O. Lapuz Sy, which occurred during the pendency of the case, abated the cause of action
as well as the action itself. The dismissal order was issued over the objection of Macario Lapuz, the
heir of the deceased plaintiff (and petitioner herein) who sought to substitute the deceased and to
have the case prosecuted to final judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S.
Eufemio, alleging, in the main, that they were married civilly on 21 September 1934 and canonically
on 30 September 1934; that they had lived together as husband and wife continuously until 1943
when her husband abandoned her; that they had no child; that they acquired properties during their
marriage; and that she discovered her husband cohabiting with a Chinese woman named Go Hiok
at 1319 Sisa Street, Manila, on or about March 1949. She prayed for the issuance of a decree of
legal separation, which, among others, would order that the defendant Eufemio S. Eufemio should
be deprived of his share of the conjugal partnership profits.
In his second amended answer to the petition, herein respondent Eufemio S. Eufemio alleged
affirmative and special defenses, and, along with several other claims involving money and other
properties, counter-claimed for the declaration of nullity ab initio of his marriage with Carmen O.
Lapuz Sy, on the ground of his prior and subsisting marriage, celebrated according to Chinese law
and customs, with one Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the parties adduced their respective evidence. But
before the trial could be completed (the respondent was already scheduled to present surrebuttal
evidence on 9 and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular accident on 31
May 1969. Counsel for petitioner duly notified the court of her death.
On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal separation" 1 on two
(2) grounds, namely: that the petition for legal separation was filed beyond the one-year period
provided for in Article 102 of the Civil Code; and that the death of Carmen abated the action for legal
separation.
On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by her
father, Macario Lapuz. Counsel for Eufemio opposed the motion.

On 29 July 1969, the court issued the order under review, dismissing the case. 2 In the body of the
order, the court stated that the motion to dismiss and the motion for substitution had to be resolved
on the question of whether or not the plaintiff's cause of action has survived, which the court
resolved in the negative. Petitioner's moved to reconsider but the motion was denied on 15
September 1969.
After first securing an extension of time to file a petition for review of the order of dismissal issued by
the juvenile and domestic relations court, the petitioner filed the present petition on 14 October
1969. The same was given due course and answer thereto was filed by respondent, who prayed for
the affirmance of the said order. 3
Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims, he
did not pursue them after the court below dismissed the case. He acquiesced in the dismissal of
said counterclaims by praying for the affirmance of the order that dismissed not only the petition for
legal separation but also his counterclaim to declare the Eufemio-Lapuz marriage to be null and
void ab initio.
But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute for the lower court did
not act on the motion for substitution) stated the principal issue to be as follows:
When an action for legal separation is converted by the counterclaim into one
for a declaration of nullity of a marriage, does the death of a party abate the
proceedings?
The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit to
one for declaration of nullity of a marriage, which is without basis, for even petitioner asserted that
"the respondent has acquiesced to the dismissal of his counterclaim" (Petitioner's Brief, page 22).
Not only this. The petition for legal separation and the counterclaim to declare the nullity of the self
same marriage can stand independent and separate adjudication. They are not inseparable nor was
the action for legal separation converted into one for a declaration of nullity by the counterclaim, for
legal separation pre-supposes a valid marriage, while the petition for nullity has a voidable marriage
as a pre-condition.
The first real issue in this case is: Does the death of the plaintiff before final decree, in an action for
legal separation, abate the action? If it does, will abatement also apply if the action involves property
rights? .
An action for legal separation which involves nothing more than the bed-and-board separation of the
spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of
the Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one
else) to claim legal separation; and in its Article 108, by providing that the spouses can, by their
reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already
rendered. Being personal in character, it follows that the death of one party to the action causes the
death of the action itself actio personalis moritur cum persona.
... When one of the spouses is dead, there is no need for divorce, because the
marriage is dissolved. The heirs cannot even continue the suit, if the death of
the spouse takes place during the course of the suit (Article 244, Section 3).
The action is absolutely dead (Cass., July 27, 1871, D. 71. 1. 81; Cass. req.,
May 8, 1933, D. H. 1933, 332.") 4 .

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

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

G.R. No. L-49542 September 12, 1980

ANTONIO MACADANGDANG, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and ELIZABETH MEJIAS, respondents.

collateral attack without joining her legal husband as a party in the instant case
(p. 18, rec.).
In its decision handed down on June 2, 1978, the Court of Appeals reversed the lower court's
decision (p. 47, and thus declared minor Rolando to be an illegitimate son of Antonio
Macadangdang (p. 52, rec.).
On November 6, 1978, the Court of Appeals denied appellant's motions for reconsideration for lack
of merit. (p. 56, rec.).

MAKASIAR, J.:
This petition for review seeks to set aside the decision of the Court of Appeals in CA-G.R. No.
54618-R which reversed the decision of the Court of First Instance of Davao, Branch IX dismissing
the action for recognition and support filed by respondent Elizabeth Mejias against petitioner Antonio
Macadangdang, and which found minor Rolando to be the illegitimate son of petitioner who was
ordered to give a monthly support of P350.00 until his alleged son reaches the age of majority (p.
47, rec.; p. 10, ROA).
The records show that respondent Elizabeth Mejias is a married woman, her husband being Crispin
Anahaw (pp. 61-62, t.s.n., Sept. 21, 1972; pp. 10-11, Brief for Respondent [P. 198, rec.]) She
allegedly had intercourse with petitioner Antonio Macadangdang sometime in March, 1967 (p. 38,
t.s.n., June 7, 1972 in CC No. 109). She also alleges that due to the affair, she and her husband
separated in 1967 (p. 63, t.s.n., Sept. 21, 1972). On October 30, 1967 (7 months or 210 days
following the illicit encounter), she gave birth to a baby boy who was named Rolando
Macadangdang in baptismal rites held on December 24,1967 (Annex "A", List of Exhibits).
The records also disclose that on April 25, 1972, respondent (then plaintiff) filed a complaint for
recognition and support against petitioner (then defendant) with the Court of First Instance of Davao,
Branch IX. This case was docketed as Civil Case No. 263 (p. 1, ROA).

Hence, petitioner filed this petition on January 12, 1979.

The issues boil down to:
1. Whether or not the child Rolando is conclusively presumed the legitimate
issue of the spouses Elizabeth Mejias and Crispin Anahaw; and
2. Whether or not the wife may institute an action that would bastardize her
child without giving her husband, the legally presumed father, an opportunity to
be heard.
The crucial point that should be emphasized and should be straightened out from the very beginning
is the fact that respondent's initial illicit affair with petitioner occurred sometime in March, 1967 and
that by reason thereof, she and her husband separated. This fact surfaced from the testimony of
respondent herself in the hearing of September 21, 1972 when this case was still in the lower court.
The pertinent portions of her testimony are thus quoted:
By Atty. Fernandez:

Defendant (now petitioner) Macadangdang filed his answer on June 30, 1972, opposing plaintiff's
claim and praying for its dismissal (p. 3, ROA).
On August 9, 1972, the lower court in a pre-trial conference, issued a Pre-trial Order formalizing
certain stipulations, admissions and factual issues on which both parties agreed (pp. 4, 5, and 6,
ROA). Correspondingly, upon agreement of the parties, an amended complaint was filed by plaintiff
on October 17, 1972 (pp. 7,8 and 9, ROA).
In its decision rendered on February 27, 1973, the lower court dismissed the complaint,. The
decision invoked positive provisions of the Civil Code and Rules of Court and authorities (pp. 10-18,
ROA).

Q What did you feel as a result of the incident where Antonio

Macadangdang used pill and took advantage of your womanhood?
A I felt worried, mentally shocked and humiliated.
Q If these feelings: worries, mental shock and humiliation, if
estimated in monetary figures, how much win be the amount?
A Ten thousand pesos, sir.
Q And because of the incidental what happened to your
with Crispin Anahaw.

On April 18, 1973, plaintiff appealed the CFI decision to the Court of Appeals (p. 59, In her appeal,
appellant assigned these errors:
1. The Honorable Trial Court erred in applying in the instant case the provisions
of Arts. 255 and 256 of the Civil Code and Secs. 4[a], 4[b] and 4[c], Rule 131, of
the Revised Rules of Court (p. 18, rec.);
2. The Honorable Trial Court erred in holding that plaintiff-appellant cannot
validly question the legitimacy of her son, Rolando Macadangdang, by a

xxx xxx xxx

WITNESS:
A We separate, sir. (pp. 61-63, T.s.n., Civil Case No. 263, Sept. 21,
1972; emphasis supplied).

From the foregoing line of questions and answers, it can be gleaned that respondent's answers
were given with spontaneity and with a clear understanding of the questions posed. There cannot be
any other meaning or interpretation of the word "incident" other than that of the initial contact
between petitioner and respondent. Even a layman would understand the clear sense of the
question posed before respondent and her categorical and spontaneous answer which does not
leave any room for interpretation. It must be noted that the very question of her counsel conveys the
assumption of an existing between respondent and her husband.

one hundred and twenty days of the three hundred which preceded the birth of
the child.

The finding of the Court of Appeals that respondent and her husband were separated in 1965 cannot
therefore be considered conclusive and binding on this Court. It is based solely on the testimony of
respondent which is self-serving. Nothing in the records shows that her statement was confirmed or
corroborated by another witness and the same cannot be treated as borne out by the record or that
which is based on substantial evidence. It is not even confirmed by her own husband, who was not
impleaded.

(2) By the fact that the husband and wife were separately, in such a way that
access was not possible;

In the case of Tolentino vs. De Jesus (L-32797, 56 SCRA 167 [1974], this Court restated that the
findings of facts of the Court of Appeals are conclusive on the parties and on the Supreme Court,
unless (1) the conclusion is a finding grounded entirely on speculation, surmise, and conjectures; (2)
the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is
based on misapprehension of facts; (5) the Court of Appeals went beyond the issues of the case
and its findings are contrary to the admission of both appellant and appellee; (6) the findings of facts
of the Court of Appeals are contrary to those of the trial court; (7) said findings of facts are
conclusions without citation of specific evidence on which they are based; (8) the facts set forth in
the petition as well as in the petitioner's main and reply briefs are not disputed by the respondent;
and (9) when the finding of facts of the Court of Appeals is premised on the absence of evidence
and is contradicted by evidence on record [Pioneer Insurance and Surety Corporation vs. Yap, L36232, December 19, 1974; Roque vs. Buan, L-22459, 21 SCRA 642 (1967); Ramos vs. Pepsi-cola
Bottling Company of the Philippines, L-225533, 19 SCRA 289 (1967); emphasis supplied].

This physical impossibility may be caused:

(1) By the impotence of the husband;

(3) By the serious illness of the husband.

Art. 256. The child shall be presumed legitimate, although the mother may have
declared against its legitimacy or may have been sentenced as an adulteress.
Art. 257. Should the wife commit adultery at or about the time of the conception
of the child, but there was no physical impossibility of access between her and
her husband as set forth in article 255, the child is prima facie presumed to be
illegitimate if it appears highly improbable, for ethnic reasons, that the child is
that of the husband. For the purposes of this article, the wife's adultery need not
be proved in a criminal case.
xxx xxx xxx
Sec. 4. Quasi-conclusive presumptions of legitimacy

Again, in Roque vs. Buan, supra, this Court reiterated the aforestated doctrine adding four more
exceptions to the general rule. This case invoked the same ruling in the previous case of Ramos vs.
Pepsi-Cola Bottling Company, etc., supra.

(a) Children born after one hundred eighty days following the celebration of the
marriage, and before three hundred days following its dissolution or the
separation of the spouses shall be presumed legitimate.

In the recent case of Francisca Alsua-Betts, et al. vs. Court of Appeals, et al. (L-46430-31, July 30,
1979), which petitioner aptly invokes, this Court thus emphasized:

Against presumption no evidence be admitted other than that of the physical

impossibility of the husband's having access to his wife within the first one
hundred and twenty days of the three hundred which preceded the birth of the
child.

... But what should not be ignored by lawyers and litigants alike is the more
basic principle that the "findings of fact" described as "final" or "conclusive" are
those borne out by the record or those which are based upon substantial
evidence. The general rule laid down by the Supreme Court does not declare
the absolute correctness of all the findings of fact made by the Court of Appeals.
There are exceptions to the general rule, where we have reviewed the findings
of fact of the Court of Appeals ... (emphasis supplied).
The following provisions of the Civil Code and the Rules of Court should be borne in mind:
Art. 255. Children born after one hundred and eighty days following the
celebration of the marriage, and before three hundred days following its
dissolution or the separation of the spouses shall be presumed to be legitimate.
Against this presumption, no evidence shall be admitted other than that of the
physical impossibility of the husband's having access to his wife within the first

This physical impossibility may be caused:

[1] By the impotence of the husband
[2] By the fact that the husband and the wife were living separately, in such a
way that access was not possible;
[3] By the serious illness of the husband;
(b) The child shall be presumed legitimate although the mother may have
declared against its legitimacy or may have been sentenced as an adulteress.

(c) Should the wife commit adultery at or about the time of the conception of the
child, but there was no physical impossibility of access between her and her
husband as set forth above, the child is presumed legitimate, unless it appears
highly improbable, for ethnic reasons, that the child is that of the husband. For
the purpose of the rule, the wife's adultery need not be proved in a criminal
case. ... (Rule 131, Rules of Court).
Whether or not respondent and her husband were separated would be immaterial to the resolution
of the status of the child Rolando. What should really matter is the fact that during the initial one
hundred twenty days of the three hundred which preceded the birth of the renamed child, no
concrete or even substantial proof was presented to establish physical impossibility of access
between respondent and her spouse. From her very revealing testimony, respondent declared that
she was bringing two sacks of rice to Samal for her children; that her four children by her husband in
her mother's house in the said town; that her alleged estranged husband also lived in her mother's
place (p. 73, pp. 21 & 22, 64 & 65, t.s.n., Sept. 21, 1972). It should also be noted that even during
her affair with petitioner and right after her delivery, respondent went to her mother's house in Samal
for treatment. Thus, in the direct examination of Patrocinia Avila (the boy's yaya), the following came
out:
Q Why were you taking care of the child Rolando, where
was Elizabeth Mejias?
A Because Elizabeth went to her parents in Same Davao del Norte
for treatment because she had a relapse (p. 13, t.s.n., of Sept. 21,
1972).
From the foregoing and since respondent and her husband continued to live in the same province,
the fact remains that there was always the possibility of access to each other. As has already been
pointed out, respondent's self-serving statements were never corroborated nor confirmed by any
other evidence, more particularly that of her husband.
The baby boy subject of this controversy was born on October 30, 1967, only seven (7) months after
March, 1967 when the "incident" or first illicit intercourse between respondent and petitioner took
place, and also, seven months from their separation (if there really was a separation). It must be
noted that as of March, 1967, respondent and Crispin Anahaw had already four children; hence,
they had been married years before such date (t.s.n., pp. 21-22, Sept. 21, 1972). The birth of
Rolando came more than one hundred eighty 180 days following the celebration of the said
marriage and before 300 days following the alleged separation between aforenamed spouses.
Under the aforequoted Article 255 of the Civil Code, the child Rolando is conclusively presumed to
be the legitimate son of respondent and her husband.
The fact that the child was born a mere seven (7) months after the initial sexual contact between
petitioner and respondent is another proof that the said child was not of petitioner since, from
indications, he came out as a normal full-term baby.
It must be stressed that the child under question has no birth certificate of Baptism (attached in the
List of Exhibits) which was prepared in the absence of the alleged father [petitioner]. Note again that
he was born on October 30, 1967. Between March, 1967 and October 30, 1967, the time difference
is clearly 7 months. The baby Rolando could have been born prematurely. But such is not the case.
Respondent underwent a normal nine-month pregnancy. Respondent herself and the yaya,
Patrocinia Avila, declared that the baby was born in the rented house at Carpenter Street, which
birth was obvisouly normal; that he was such a healthy baby that barely 5 days after his birth, he

was already cared for by said yaya when respondent became sick (pp. 28, 29 & 43, t.s.n., Sept. 21,
1972); and that when he was between 15 days and 2 months of age, respondent left him to the care
of the yaya when the former left for Samal for treatment and returned only in February, 1968 (pp. 3032, t.s.n., Sept. 21, 1972). From the aforestated facts, it can be indubitably said that the child was a
full-term baby at birth, normally delivered, and raised normally by the yaya. If it were otherwise or if
he were born prematurely, he would have needed special care like being placed in an incubator in a
clinic or hospital and attended to by a physician, not just a mere yaya. These all point to the fact that
the baby who was born on October 30, 1967 or 7 months from the first sexual encounter between
petitioner and respondent was conceived as early as January, 1967. How then could he be the child
of petitioner?
In Our jurisprudence, this Court has been more definite in its pronouncements on the value of
baptismal certificates. It thus ruled that while baptismal and marriage certificates may be considered
public documents, they are evidence only to prove the administration of the sacraments on the dates
therein specified but not the veracity of the states or declarations made therein with respect to his
kinsfolk and/or citizenship (Paa vs. Chan, L-25945, Oct. 31, 1967). Again, in the case of Fortus vs.
Novero (L-22378, 23 SCRA 1331 [1968]), this Court held that a baptismal administered, in
conformity with the rites of the Catholic Church by the priest who baptized the child, but it does not
prove the veracity of the declarations and statements contained in the certificate that concern the
relationship of the person baptized. Such declarations and statements, in order that their truth may
be admitted, must indispensably be shown by proof recognized by law.
The child Rolando is presumed to be the legitimate son of respondent and her spouse. This
presumption becomes conclusive in the absence of proof that there was physical impossibility of
access between the spouses in the first 120 days of the 300 which preceded the birth of the child.
This presumption is actually quasi-conclusive and may be rebutted or refuted by only one evidence
the physical impossibility of access between husband and wife within the first 120 days of the 300
which preceded the birth of the child. This physical impossibility of access may be caused by any of
these:
1. Impotence of the husband;
2. Living separately in such a way that access was impossible and
3. Serious illness of the husband.
This presumption of legitimacy is based on the assumption that there is sexual union in marriage,
particularly during the period of conception. Hence, proof of the physical impossibility of such sexual
union prevents the application of the presumption (Tolentino, Commentaries & Jurisprudence on the
Civil Code, Vol. 1, p. 513 citing Bevilaqua, Familia p. 311).
The modern rule is that, in order to overthrow the presumption of legitimacy, it must be
shown beyond reasonable doubt that there was no access as could have enabled the husband to be
the father of the child. Sexual intercourse is to be presumed where personal access is not
disproved, unless such presumption is rebutted by evidence to the contrary; where sexual
intercourse is presumed or proved, the husband must be taken to be the father of the child
(Tolentino, citing Madden, Persons and Domestic Relations, pp. 340-341).
To defeat the presumption of legitimacy, therefore, there must be physical impossibility of access by
the husband to the wife during the period of conception. The law expressly refers to physical
impossibility. Hence, a circumstance which makes sexual relations improbable, cannot defeat the
presumption of legitimacy; but it may be proved as a circumstance to corroborate proof of physical
impossibility of access (Tolentino, citing Bonet 352; 4 Valverde 408).

Impotence refers to the inability of the male organ to copulation, to perform its proper function
(Bouvier's Law Dictionary 514). As defined in the celebrated case of Menciano vs. San Jose (89
Phil. 63), impotency is the physical inability to have sexual intercourse. It is not synonymous with
sterility. Sterility refers to the inability to procreate, whereas, impotence refers to the physical inability
to perform the act of sexual intercourse. In respect of the impotency of the husband of the mother of
a child, to overcome the presumption of legitimacy on conception or birth in wedlock or to show
illegitimacy, it has been held or recognized that the evidence or proof must be clear or satisfactory:
clear, satisfactory and convincing, irresistible or positive (S.C. Tarleton vs. Thompson, 118 S.E.
421, 125 SC 182, cited in 10 C.J.S. 50).
The separation between the spouses must be such as to make sexual access impossible. This may
take place when they reside in different countries or provinces, and they have never been together
during the period of conception (Estate of Benito Marcelo, 60 Phil. 442). Or, the husband may be in
prison during the period of conception, unless it appears that sexual union took place through
corrupt violation of or allowed by prison regulations (1 Manresa 492-500).
The illness of the husband must be of such a nature as to exclude the possibility of his having
sexual intercourse with his wife; such as, when because of a injury, he was placed in a plaster cast,
and it was inconceivable to have sexual intercourse without the most severe pain (Tolentino, citing
Commissioner vs. Hotel 256 App. Div. 352, 9 N.Y. Supp. p. 515); or the illness produced temporary
or permanent impotence, making copulation impossible (Tolentino, citing Q. Bonet 352).
Thus, in the case of Andal vs. Macaraig (89 Phil. 165), this Court ruled that just because
tuberculosis is advanced in a man does not necessarily mean that he is incapable of sexual
intercourse. There are cases where persons suffering from tuberculosis can do the carnal act even
in the most crucial stage of health because then they seemed to be more inclined to sexual
intercourse. The fact that the wife had illicit intercourse with a man other than her husband during
the initial period, does not preclude cohabitation between said husband and wife.
Significantly American courts have made definite pronouncements or rulings on the issues under
consideration. The policy of the law is to confer legitimacy upon children born in wedlock when
access of the husband at the time of conception was not impossible (N.Y. Milone vs. Milone, 290
N.Y. S. 863, 160 Misc. 830) and there is the presumption that a child so born is the child of the
husband and is legitimate even though the wife was guilty of infidelity during the possible period of
conception (N.Y. Dieterich vs. Dieterich, 278 N.Y. S. 645, Misc. 714; both cited in 10 C.J.S., pp.
18,19 & 20).

confession against the legitimacy of the child which may really be only a confession of her guilt. Or
the wife, out of vengeance and spite, may declare the as not her husband's although the statement
be false. But there is another reason which is more powerful, demanding the exclusion of proof of
confession or adultery, and it is, that at the moment of conception, it cannot be determined when a
woman cohabits during the same period with two men, by whom the child was begotten, it being
possible that it be the husband himself (Manresa, Vol. I, pp. 503-504).
Hence, in general, good morals and public policy require that a mother should not be permitted to
assert the illegitimacy of a child born in wedlock in order to obtain some benefit for herself (N.Y.
Flint vs. Pierce, 136 N.Y. S. 1056, cited in 10 C.J.S. 77).
The law is not willing that the child be declared illegitimate to suit the whims and purposes of either
parent, nor Merely upon evidence that no actual act of sexual intercourse occurred between
husband and wife at or about the time the wife became pregnant. Thus, where the husband denies
having any intercourse with his wife, the child was still presumed legitimate (Lynn vs. State, 47 Ohio
App. 158,191 N.E. 100).
With respect to Article 257 aforequoted, it must be emphasized that adultery on the part of the wife,
in itself, cannot destroy the presumption of legitimacy of her child, because it is still possible that the
child is that of the husband (Tolentino, citing 1 Vera 170; 4 Borja 23-24).
It has, therefore, been held that the admission of the wife's testimony on the point would be
unseemly and scandalous, not only because it reveals immoral conduct on her part, but also
because of the effect it may have on the child, who is in no fault, but who nevertheless must be the
chief sufferer thereby (7 Am. Jur. Sec. 21, pp. 641-642).
In the case of a child born or conceived in wedlock, evidence of the infidelity or adultery of the wife
and mother is not admissible to show illegitimacy, if there is no proof of the husband's impotency or
non-access to his wife (Iowa Craven vs. Selway, 246 N.W. 821, cited in 10 C.J.S. 36).
At this juncture, it must be pointed out that only the husband can contest the legitimacy of a child
born to his wife. He is the one directly confronted with the scandal and ridicule which the infidelity of
his wife produces; and he should decide whether to conceal that infidelity or expose it, in view of the
moral or economic interest involved (Tolentino, citing Bevilaqua, Familia, p. 314).

So firm was this presumption originally that it cannot be rebutted unless the husband was incapable
of procreation or was absent beyond the four seas, that is, absent from the realm, during the whole
period of the wife's pregnancy (10 C.J.S. p. 20).

The right to repudiate or contest the legitimacy of a child born in wedlock belongs only to the alleged
father, who is the husband of the mother and can be exercised only by him or his heirs, within a
fixed time, and in certain cases, and only in a direct suit brought for the purpose (La Ducasse vs.
Ducasse, 45 So. 565, 120 La. 731; Saloy's Succ. 10 So. 872, 44 La. Ann., cited in 10 C.J.S. 77;
emphasis supplied).

The presumption of legitimacy of children born during wedlock obtains, notwithstanding the husband
and wife voluntarily separate and live apart, unless the contrary is shown (Ala. Franks vs. State, 161
So. 549, 26 . App. 430) and this includes children born after the separation [10 C.J.S. pp. 23 & 24;
emphasis supplied].

Thus the mother has no right to disavow a child because maternity is never uncertain; she can only
contest the Identity of the child (La Eloi vs. Mader, 1 Rollo. 581, 38 Am. D. 192).

It must be stressed that Article 256 of the Civil Code which provides that the child is presumed
legitimate although the mother may have declared against its legitimacy or may have been
sentenced as an adulteress has been adopted for two solid reasons. First, in a fit of anger, or to
arouse jealousy in the husband, the wife may have made this declaration (Power vs. State, 95 N.E.,
660). Second, the article is established as a guaranty in favor of the children whose condition should
not be under the mercy of the passions of their parents. The husband whose honor if offended, that
is, being aware of his wife's adultery, may obtain from the guilty spouse by means of coercion, a

Formerly, declarations of a wife that her husband was not the father of a child in wedlock were held
to be admissible in evidence; but the general rule now is that they are inadmissible to bastardize the
child, regardless of statutory provisions obviating incompetency on the ground of interest, or the fact
that the conception was antenuptial. The rule is said to be founded in decency, morality and public
policy (Wallace vs. Wallace 137 Iowa 37,114 N.W. 527,14 L.R.A. [N.S.] 544,126 Am. St. Rep. 253,15
Ann. Cas. 761, Am. Jur. 26).

From the foregoing, particularly the testimony of respondent and her witnesses, this Court has every
reason to believe that Crispin Anahaw was not actually separated from Elizabeth Mejias; that he was
a very potent man, having had four children with his wife; that even if he and were even separately
(which the latter failed to prove anyway) and assuming, for argument's sake, that they were really
separated, there was the possibility of physical access to each other considering their proximity to
each other and considering further that respondent still visited and recuperated in her mother's
house in Samal where her spouse resided with her children. Moreover, Crispin Anahaw did not have
any serious illness or any illness whatsoever which would have rendered him incapable of having
sexual act with his wife. No substantial evidence whatsoever was brought out to negate the
aforestated facts.
Crispin Anahaw served as a refuge after respondent's reckless and immoral pursuits or a "buffer"
after her flings. And she deliberately did not include nor present her husband in this case because
she could not risk her scheme. She had to be certain that such scheme to bastardize her own son
for her selfish motives would not be thwarted.
This Court finds no other recourse except to deny respondent's claim to declare her son Rolando the
illegitimate child of petitioner. From all indications, respondent has paraded herself as a woman of
highly questionable character. A married woman who, on first meeting, rides with a total stranger
who is married towards nightfall, sleeps in his house in the presence of his children, then lives with
him after their initial sexual contact the atmosphere for which she herself provided is patently
immoral and hedonistic. Although her husband was a very potent man, she readily indulged in an
instant illicit relationship with a married man she had never known before.
Respondent had shown total lack of or genuine concern for her child (Rolando) for, even after birth,
she left him in the care of a yaya for several months. This is not the normal instinct and behavior of a
mother who has the safety and welfare of her child foremost in her mind. The filing of this case itself
shows how she is capable of sacrificing the psycho-social future (reputation) of the child in
exchange for some monetary consideration. This is blatant shamelessness.
It also appears that her claim against petitioner is a disguised attempt to evade the responsibility
and consequence of her reckless behavior at the expense of her husband, her illicit lover and above
all her own son. For this Court to allow, much less consent to, the bastardization of respondent's
son would give rise to serious and far-reaching consequences on society. This Court will not tolerate
scheming married women who would indulge in illicit affairs with married men and then exploit the
children born during such immoral relations by using them to collect from such moneyed paramours.
This would be the form of wrecking the stability of two families. This would be a severe assault on
morality.
And as between the paternity by the husband and the paternity by the paramour, all the
circumstances being equal, the law is inclined to follow the former; hence, the child is thus given the
benefit of legitimacy.
Finally, Article 220 of the Civil Code reinforces the aforesaid principle when it provides thus:
Art. 220. In case of doubt, an presumptions favor the solidarity of the family.
Thus, every of law or facts leans toward the validity of marriage, the
indissolubility of the marriage bonds, the legitimacy of childrenthe community of
property during marriage, the authority of parents over their children, and the
validity of defense for any member of the family in case of unlawful aggression.

WHEREFORE, THE DECISION OF THE COURT OF APPEALS DATED JUNE 2, 1978, AND ITS
RESOLUTION DATED NOVEMBER 6, 1978 ARE HEREBY REVERSED AND SET ASIDE. COSTS
AGAINST PRIVATE RESPONDENT.
SO ORDERED.

G.R. No. 169900

March 18, 2010

MARIO SIOCHI, Petitioner,

vs.
ALFREDO GOZON, WINIFRED GOZON, GIL TABIJE, INTER-DIMENSIONAL REALTY, INC., and
ELVIRA GOZON, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x

Furthermore, said parties are required to mutually support their child Winifred R. Gozon as her
needs arises.
SO ORDERED.7
As regards the property, the Cavite RTC held that it is deemed conjugal property.
On 22 August 1994, Alfredo executed a Deed of Donation over the property in favor of their
daughter, Winifred Gozon (Winifred). The Register of Deeds of Malabon, Gil Tabije, cancelled TCT
No. 5357 and issued TCT No. M-105088 in the name of Winifred, without annotating the Agreement
and the notice of lis pendens on TCT No. M-10508.

G.R. No. 169977

INTER-DIMENSIONAL REALTY, INC., Petitioner,
vs.
MARIO SIOCHI, ELVIRA GOZON, ALFREDO GOZON, and WINIFRED GOZON, Respondents.
RESOLUTION
CARPIO, J.:
This is a consolidation of two separate petitions for review,1 assailing the 7 July 2005 Decision2 and
the 30 September 2005 Resolution3 of the Court of Appeals in CA-G.R. CV No. 74447.
This case involves a 30,000 sq.m. parcel of land (property) covered by TCT No. 5357.4 The property
is situated in Malabon, Metro Manila and is registered in the name of "Alfredo Gozon (Alfredo),
married to Elvira Gozon (Elvira)."

On 26 October 1994, Alfredo, by virtue of a Special Power of Attorney9 executed in his favor by
Winifred, sold the property to Inter-Dimensional Realty, Inc. (IDRI) for P18 million.10 IDRI paid
Alfredo P18 million, representing full payment for the property.11 Subsequently, the Register of
Deeds of Malabon cancelled TCT No. M-10508 and issued TCT No. M-1097612 to IDRI.
Mario then filed with the Malabon Regional Trial Court (Malabon RTC) a complaint for Specific
Performance and Damages, Annulment of Donation and Sale, with Preliminary Mandatory and
Prohibitory Injunction and/or Temporary Restraining Order.
On 3 April 2001, the Malabon RTC rendered a decision,13 the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
01. On the preliminary mandatory and prohibitory injunction:

On 23 December 1991, Elvira filed with the Cavite City Regional Trial Court (Cavite RTC) a petition
for legal separation against her husband Alfredo. On 2 January 1992, Elvira filed a notice of lis
pendens, which was then annotated on TCT No. 5357.
On 31 August 1993, while the legal separation case was still pending, Alfredo and Mario Siochi
(Mario) entered into an Agreement to Buy and Sell5 (Agreement) involving the property for the price
of P18 million. Among the stipulations in the Agreement were that Alfredo would: (1) secure an
Affidavit from Elvira that the property is Alfredos exclusive property and to annotate the Agreement
at the back of TCT No. 5357; (2) secure the approval of the Cavite RTC to exclude the property from
the legal separation case; and (3) secure the removal of the notice oflis pendens pertaining to the
said case and annotated on TCT No. 5357. However, despite repeated demands from Mario, Alfredo
failed to comply with these stipulations. After paying the P5 million earnest money as partial
payment of the purchase price, Mario took possession of the property in September 1993. On 6
September 1993, the Agreement was annotated on TCT No. 5357.
Meanwhile, on 29 June 1994, the Cavite RTC rendered a decision6 in the legal separation case, the
dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered decreeing the legal separation between petitioner and
respondent. Accordingly, petitioner Elvira Robles Gozon is entitled to live separately from
respondent Alfredo Gozon without dissolution of their marriage bond. The conjugal partnership of
gains of the spouses is hereby declared DISSOLVED and LIQUIDATED. Being the offending
spouse, respondent is deprived of his share in the net profits and the same is awarded to their child
Winifred R. Gozon whose custody is awarded to petitioner.

1.1 The same is hereby made permanent by:

1.1.1 Enjoining defendants Alfredo Gozon, Winifred Gozon, InterDimensional Realty, Inc. and Gil Tabije, their agents, representatives
and all persons acting in their behalf from any attempt of commission
or continuance of their wrongful acts of further alienating or disposing
of the subject property;
1.1.2. Enjoining defendant Inter-Dimensional Realty, Inc. from
entering and fencing the property;
1.1.3. Enjoining defendants Alfredo Gozon, Winifred Gozon, InterDimensional Realty, Inc. to respect plaintiffs possession of the
property.
02. The Agreement to Buy and Sell dated 31 August 1993, between plaintiff and defendant
Alfredo Gozon is hereby approved, excluding the property and rights of defendant Elvira
Robles-Gozon to the undivided one-half share in the conjugal property subject of this
case.
03. The Deed of Donation dated 22 August 1994, entered into by and between defendants
Alfredo Gozon and Winifred Gozon is hereby nullified and voided.

04. The Deed of Absolute Sale dated 26 October 1994, executed by defendant Winifred
Gozon, through defendant Alfredo Gozon, in favor of defendant Inter-Dimensional Realty,
Inc. is hereby nullified and voided.

12.1 Eighteen Million Pesos (P18,000,000.00) which constitute the amount the
former received from the latter pursuant to their Deed of Absolute Sale dated 26
October 1994, with legal interest therefrom;

05. Defendant Inter-Dimensional Realty, Inc. is hereby ordered to deliver its Transfer
Certificate of Title No. M-10976 to the Register of Deeds of Malabon, Metro Manila.

12.2 One Million Pesos (P1,000,000.00) as moral damages;

12.3 Five Hundred Thousand Pesos (P500,000.00) as exemplary damages;
and

06. The Register of Deeds of Malabon, Metro Manila is hereby ordered to cancel
Certificate of Title Nos. 10508 "in the name of Winifred Gozon" and M-10976 "in the name
of Inter-Dimensional Realty, Inc.," and to restore Transfer Certificate of Title No. 5357 "in
the name of Alfredo Gozon, married to Elvira Robles" with the Agreement to Buy and Sell
dated 31 August 1993 fully annotated therein is hereby ordered.
07. Defendant Alfredo Gozon is hereby ordered to deliver a Deed of Absolute Sale in favor
of plaintiff over his one-half undivided share in the subject property and to comply with all
the requirements for registering such deed.
08. Ordering defendant Elvira Robles-Gozon to sit with plaintiff to agree on the selling
price of her undivided one-half share in the subject property, thereafter, to execute and
deliver a Deed of Absolute Sale over the same in favor of the plaintiff and to comply with
all the requirements for registering such deed, within fifteen (15) days from the receipt of
this DECISION.
09. Thereafter, plaintiff is hereby ordered to pay defendant Alfredo Gozon the balance of
Four Million Pesos (P4,000,000.00) in his one-half undivided share in the property to be
set off by the award of damages in plaintiffs favor.

12.4 One Hundred Thousand Pesos (P100,000.00) as attorneys fees.

13. Defendants Alfredo Gozon and Winifred Gozon are hereby ordered to pay costs of
suit.
SO ORDERED.14
On appeal, the Court of Appeals affirmed the Malabon RTCs decision with modification. The
dispositive portion of the Court of Appeals Decision dated 7 July 2005 reads:
WHEREFORE, premises considered, the assailed decision dated April 3, 2001 of the RTC, Branch
74, Malabon is hereby AFFIRMED with MODIFICATIONS, as follows:
1. The sale of the subject land by defendant Alfredo Gozon to plaintiff-appellant Siochi is
declared null and void for the following reasons:

10. Plaintiff is hereby ordered to pay the defendant Elvira Robles-Gozon the price they
had agreed upon for the sale of her one-half undivided share in the subject property.

a) The conveyance was done without the consent of defendant-appellee Elvira

Gozon;

11. Defendants Alfredo Gozon, Winifred Gozon and Gil Tabije are hereby ordered to pay
the plaintiff, jointly and severally, the following:

b) Defendant Alfredo Gozons one-half () undivided share has been forfeited

in favor of his daughter, defendant Winifred Gozon, by virtue of the decision in
the legal separation case rendered by the RTC, Branch 16, Cavite;

11.1 Two Million Pesos (P2,000,000.00) as actual and compensatory damages;

11.2 One Million Pesos (P1,000,000.00) as moral damages;
11.3 Five Hundred Thousand Pesos (P500,000.00) as exemplary damages;

2. Defendant Alfredo Gozon shall return/deliver to plaintiff-appellant Siochi the amount

of P5 Million which the latter paid as earnest money in consideration for the sale of the
subject land;
3. Defendants Alfredo Gozon, Winifred Gozon and Gil Tabije are hereby ordered to pay
plaintiff-appellant Siochi jointly and severally, the following:

11.4 Four Hundred Thousand Pesos (P400,000.00) as attorneys fees; and

a) P100,000.00 as moral damages;
11.5 One Hundred Thousand Pesos (P100,000.00) as litigation expenses.
b) P100,000.00 as exemplary damages;
11.6 The above awards are subject to set off of plaintiffs obligation in paragraph
9 hereof.
12. Defendants Alfredo Gozon and Winifred Gozon are hereby ordered to pay InterDimensional Realty, Inc. jointly and severally the following:

c) P50,000.00 as attorneys fees;

d) P20,000.00 as litigation expenses; and

e) The awards of actual and compensatory damages are hereby ordered

deleted for lack of basis.
4. Defendants Alfredo Gozon and Winifred Gozon are hereby ordered to pay defendantappellant IDRI jointly and severally the following:
a) P100,000.00 as moral damages;
b) P100,000.00 as exemplary damages; and

In this case, Alfredo was the sole administrator of the property because Elvira, with whom Alfredo
was separated in fact, was unable to participate in the administration of the conjugal property.
However, as sole administrator of the property, Alfredo still cannot sell the property without the
written consent of Elvira or the authority of the court. Without such consent or authority, the sale is
void.16 The absence of the consent of one of the spouse renders the entire sale void, including the
portion of the conjugal property pertaining to the spouse who contracted the sale. 17Even if the other
spouse actively participated in negotiating for the sale of the property, that other spouses written
consent to the sale is still required by law for its validity.18 The Agreement entered into by Alfredo and
Mario was without the written consent of Elvira. Thus, the Agreement is entirely void. As regards
Marios contention that the Agreement is a continuing offer which may be perfected by Elviras
acceptance before the offer is withdrawn, the fact that the property was subsequently donated by
Alfredo to Winifred and then sold to IDRI clearly indicates that the offer was already withdrawn.

c) P50,000.00 as attorneys fees.

Defendant Winifred Gozon, whom the undivided one-half share of defendant Alfredo Gozon was
awarded, is hereby given the option whether or not to dispose of her undivided share in the subject
land.
The rest of the decision not inconsistent with this ruling stands.
SO ORDERED.

However, we disagree with the finding of the Court of Appeals that the one-half undivided share of
Alfredo in the property was already forfeited in favor of his daughter Winifred, based on the ruling of
the Cavite RTC in the legal separation case. The Court of Appeals misconstrued the ruling of the
Cavite RTC that Alfredo, being the offending spouse, is deprived of his share in the net profits and
the same is awarded to Winifred.
The Cavite RTC ruling finds support in the following provisions of the Family Code:

15

Art. 63. The decree of legal separation shall have the following effects:

Only Mario and IDRI appealed the decision of the Court of Appeals. In his petition, Mario alleges that
the Agreement should be treated as a continuing offer which may be perfected by the acceptance of
the other spouse before the offer is withdrawn. Since Elviras conduct signified her acquiescence to
the sale, Mario prays for the Court to direct Alfredo and Elvira to execute a Deed of Absolute Sale
over the property upon his payment of P9 million to Elvira.

(1) The spouses shall be entitled to live separately from each other, but the marriage
bonds shall not be severed;
(2) The absolute community or the conjugal partnership shall be dissolved and
liquidated but the offending spouse shall have no right to any share of the net
profits earned by the absolute community or the conjugal partnership, which shall
be forfeited in accordance with the provisions of Article 43(2);

On the other hand, IDRI alleges that it is a buyer in good faith and for value. Thus, IDRI prays that
the Court should uphold the validity of IDRIs TCT No. M-10976 over the property.

(3) The custody of the minor children shall be awarded to the innocent spouse, subject to
the provisions of Article 213 of this Code; and

We find the petitions without merit.

This case involves the conjugal property of Alfredo and Elvira. Since the disposition of the property
occurred after the effectivity of the Family Code, the applicable law is the Family Code. Article 124 of
the Family Code provides:
Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both
spouses jointly. In case of disagreement, the husbands decision shall prevail, subject to the
recourse to the court by the wife for a proper remedy, which must be availed of within five years from
the date of the contract implementing such decision.

The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent
spouse shall be revoked by operation of law.
Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce
the following effects:
xxx

In the event that one spouse is incapacitated or otherwise unable to participate in the administration
of the conjugal properties, the other spouse may assume sole powers of administration. These
powers do not include the powers of disposition or encumbrance which must have the authority of
the court or the written consent of the other spouse. In the absence of such authority or consent, the
disposition or encumbrance shall be void. However, the transaction shall be construed as a
continuing offer on the part of the consenting spouse and the third person, and may be perfected as
a binding contract upon the acceptance by the other spouse or authorization by the court before the
offer is withdrawn by either or both offerors. (Emphasis supplied)

(2) The absolute community of property or the conjugal partnership, as the case may be, shall be
dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share
of the net profits of the community property or conjugal partnership property shall be forfeited in
favor of the common children or, if there are none, the children of the guilty spouse by a previous
marriage or, in default of children, the innocent spouse; (Emphasis supplied)
Thus, among the effects of the decree of legal separation is that the conjugal partnership is
dissolved and liquidated and the offending spouse would have no right to any share of the net profits

earned by the conjugal partnership. It is only Alfredos share in the net profits which is forfeited in
favor of Winifred. Article 102(4) of the Family Code provides that "[f]or purposes of computing the
net profits subject to forfeiture in accordance with Article 43, No. (2) and 63, No. (2), the said profits
shall be the increase in value between the market value of the community property at the time of the
celebration of the marriage and the market value at the time of its dissolution." Clearly, what is
forfeited in favor of Winifred is not Alfredos share in the conjugal partnership property but merely in
the net profits of the conjugal partnership property.
With regard to IDRI, we agree with the Court of Appeals in holding that IDRI is not a buyer in good
faith. As found by the RTC Malabon and the Court of Appeals, IDRI had actual knowledge of facts
and circumstances which should impel a reasonably cautious person to make further inquiries about
the vendors title to the property. The representative of IDRI testified that he knew about the
existence of the notice of lis pendens on TCT No. 5357 and the legal separation case filed before
the Cavite RTC. Thus, IDRI could not feign ignorance of the Cavite RTC decision declaring the
property as conjugal.
Furthermore, if IDRI made further inquiries, it would have known that the cancellation of the notice of
lis pendens was highly irregular. Under Section 77 of Presidential Decree No. 1529,19 the notice
of lis pendens may be cancelled (a) upon order of the court, or (b) by the Register of Deeds upon
verified petition of the party who caused the registration of the lis pendens. In this case, the lis
pendens was cancelled by the Register of Deeds upon the request of Alfredo. There was no court
order for the cancellation of the lis pendens. Neither did Elvira, the party who caused the registration
of the lis pendens, file a verified petition for its cancellation.
Besides, had IDRI been more prudent before buying the property, it would have discovered that
Alfredos donation of the property to Winifred was without the consent of Elvira. Under Article
12520 of the Family Code, a conjugal property cannot be donated by one spouse without the consent
of the other spouse. Clearly, IDRI was not a buyer in good faith.1avvphi1
Nevertheless, we find it proper to reinstate the order of the Malabon RTC for the reimbursement of
the P18 million paid by IDRI for the property, which was inadvertently omitted in the dispositive
portion of the Court of Appeals decision.
WHEREFORE, we DENY the petitions. We AFFIRM the 7 July 2005 Decision of the Court of
Appeals in CA-G.R. CV No. 74447 with the following MODIFICATIONS:
(1) We DELETE the portions regarding the forfeiture of Alfredo Gozons one-half
undivided share in favor of Winifred Gozon and the grant of option to Winifred Gozon
whether or not to dispose of her undivided share in the property; and
(2) We ORDER Alfredo Gozon and Winifred Gozon to pay Inter-Dimensional Realty, Inc.
jointly and severally the Eighteen Million Pesos (P18,000,000) which was the amount paid
by Inter-Dimensional Realty, Inc. for the property, with legal interest computed from the
finality of this Decision.

G.R. No. 114791 May 29, 1997

d) P5,000.00, as attorney's fees; and

NANCY GO AND ALEX GO, petitioners,

vs.
THE HONORABLE COURT OF APPEALS, HERMOGENES ONG and JANE C.
ONG, respondents.

e) P2,000.00, as litigation expenses;

Defendants are also ordered to pay the costs.
SO ORDERED.
Dissatisfied with the decision, petitioners elevated the case to the Court of Appeals which, on
September 14, 1993, dismissed the appeal and affirmed the trial court's decision.

ROMERO, J.:
No less than the Constitution commands us to protect marriage as an inviolable social institution and
the foundation of the family. 1 In our society, the importance of a wedding ceremony cannot be
underestimated as it is the matrix of the family and, therefore, an occasion worth reliving in the
succeeding years.
It is in this light that we narrate the following undisputed facts:
Private respondents spouses Hermogenes and Jane Ong were married on June 7, 1981, in
Dumaguete City. The video coverage of the wedding was provided by petitioners at a contract price
of P1,650.00. Three times thereafter, the newlyweds tried to claim the video tape of their wedding,
which they planned to show to their relatives in the United States where they were to spend their
honeymoon, and thrice they failed because the tape was apparently not yet processed. The parties
then agreed that the tape would be ready upon private respondents' return.
When private respondents came home from their honeymoon, however, they found out that the tape
had been erased by petitioners and therefore, could no longer be delivered.
Furious at the loss of the tape which was supposed to be the only record of their wedding, private
respondents filed on September 23, 1981 a complaint for specific performance and damages
against petitioners before the Regional Trial Court, 7th Judicial District, Branch 33, Dumaguete City.
After a protracted trial, the court a quo rendered a decision, to wit:
WHEREFORE, judgment is hereby granted:
1. Ordering the rescission of the agreement entered into between plaintiff
Hermogenes Ong and defendant Nancy Go;
2. Declaring defendants Alex Go and Nancy Go jointly and severally liable to
plaintiffs Hermogenes Ong and Jane C. Ong for the following sums:
a) P450.00 , the down payment made at contract time;
b) P75,000.00, as moral damages;
c) P20,000.00, as exemplary damages;

Hence, this petition.

Petitioners contend that the Court of Appeals erred in not appreciating the evidence they presented
to prove that they acted only as agents of a certain Pablo Lim and, as such, should not have been
held liable. In addition, they aver that there is no evidence to show that the erasure of the tape was
done in bad faith so as to justify the award of damages. 2
The petition is not meritorious.
Petitioners claim that for the video coverage, the cameraman was employed by Pablo Lim who also
owned the video equipment used. They further assert that they merely get a commission for all
customers solicited for their principal. 3
This contention is primarily premised on Article 1883 of the Civil Code which states thus:
Art. 1883. If an agent acts in his own name, the principal has no right of action
against the persons with whom the agent has contracted; neither have such
persons against the principal.
In such case the agent is the one directly bound in favor of the person with
whom he has contracted, as if the transaction were his own, except when the
contract involves things belonging to the principal.
xxx xxx xxx
Petitioners' argument that since the video equipment used belonged to Lim and thus the contract
was actually entered into between private respondents and Lim is not deserving of any serious
consideration. In the instant case, the contract entered into is one of service, that is, for the video
coverage of the wedding. Consequently, it can hardly be said that the object of the contract was the
video equipment used. The use by petitioners of the video equipment of another person is of no
consequence.
It must also be noted that in the course of the protracted trial below, petitioners did not even present
Lim to corroborate their contention that they were mere agents of the latter. It would not be
unwarranted to assume that their failure to present such a vital witness would have had an adverse
result on the case. 4

As regards the award of damages, petitioners would impress upon this Court their lack of malice or
fraudulent intent in the erasure of the tape. They insist that since private respondents did not claim
the tape after the lapse of thirty days, as agreed upon in their contract, the erasure was done in
consonance with consistent business practice to minimize losses. 5
We are not persuaded.
As correctly observed by the Court of Appeals, it is contrary to human nature for any newlywed
couple to neglect to claim the video coverage of their wedding; the fact that private respondents filed
a case against petitioners belies such assertion. Clearly, petitioners are guilty of actionable delay for
having failed to process the video tape. Considering that private respondents were about to leave for
the United States, they took care to inform petitioners that they would just claim the tape upon their
return two months later. Thus, the erasure of the tape after the lapse of thirty days was unjustified.
In this regard, Article 1170 of the Civil Code provides that "those who in the performance of their
obligations are guilty of fraud, negligence or delay, and those who is any manner contravene the
tenor thereof, are liable for damages."
In the instant case, petitioners and private respondents entered into a contract whereby, for a fee,
the former undertook to cover the latter's wedding and deliver to them a video copy of said event.
For whatever reason, petitioners failed to provide private respondents with their tape. Clearly,
petitioners are guilty of contravening their obligation to said private respondents and are thus liable
for damages.
The grant of actual or compensatory damages in the amount of P450.00 is justified, as
reimbursement of the downpayment paid by private respondents to petitioners. 6
Generally, moral damages cannot be recovered in an action for breach of contract because this
case is not among those enumerated in Article 2219 of the Civil Code. However, it is also accepted
in this jurisdiction that liability for aquasi-delict may still exist despite the presence of contractual
relations, that is, the act which violates the contract may also constitute a quasidelict. 7 Consequently, moral damages are recoverable for the breach of contract
which was palpably wanton, reckless, malicious or in bad faith, oppressive or abusive. 8
Petitioners' act or omission in recklessly erasing the video coverage of private respondents' wedding
was precisely the cause of the suffering private respondents had to undergo.
As the appellate court aptly observed:

Considering the sentimental value of the tapes and the fact that the event
therein recorded a wedding which in our culture is a significant milestone to
be cherished and remembered could no longer be reenacted and was lost
forever, the trial court was correct in awarding the appellees moral damages
albeit in the amount of P75,000.00, which was a great reduction from plaintiffs'
demand in the complaint in compensation for the mental anguish, tortured
feelings, sleepless nights and humiliation that the appellees suffered and which
under the circumstances could be awarded as allowed under Articles 2217 and
2218 of the Civil Code. 9
Considering the attendant wanton negligence committed by petitioners in the case at bar, the award
of exemplary damages by the trial court is justified 10 to serve as a warning to all entities engaged in
the same business to observe due diligence in the conduct of their affairs.
The award of attorney' s fees and litigation expenses are likewise proper, consistent with Article
2208 11 of the Civil Code.
Finally, petitioner Alex Go questions the finding of the trial and appellate courts holding him jointly
and severally liable with his wife Nancy regarding the pecuniary liabilities imposed. He argues that
when his wife entered into the contract with private respondent, she was acting alone for her sole
interest. 12
We find merit in this contention. Under Article 117 of the Civil Code (now Article 73 of the Family
Code), the wife may exercise any profession, occupation or engage in business without the consent
of the husband. In the instant case, we are convinced that it was only petitioner Nancy Go who
entered into the contract with private respondent. Consequently, we rule that she is solely liable to
private respondents for the damages awarded below, pursuant to the principle that contracts
produce effect only as between the parties who execute them. 13
WHEREFORE, the assailed decision dated September 14, 1993 is hereby AFFIRMED with the
MODIFICATION that petitioner Alex Go is absolved from any liability to private respondents and that
petitioner Nancy Go is solely liable to said private respondents for the judgment award. Costs
against petitioners.