Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 79284 November 27, 1987

FROILAN C. GANDIONCO, petitioner,

vs.
HON. SENEN C. PEARANDA, as Presiding Judge of the Regional Trial Court of Misamis
Oriental, Branch 18, Cagayan de Oro City, and TERESITA S. GANDIONCO, respondents.

PADILLA, J.:

A special civil action for certiorari, with application for injunction, to annul (1) the Order of the
respondent Judge, dated 10 December 1986, ordering petitioner to pay support pendente lite to
private respondent (his wife) and their child, and (2) the Order of the same respondent Judge, dated
5 August 1987, denying petitioner's motion to suspend hearings in the action for legal separation filed
against him by private respondent as well as his motion to inhibit respondent Judge from further
hearing and trying the case.

On 29 May 1986, private respondent, the legal wife of the petitioner, filed with the Regional Trial Court
of Misamis Oriental, 10th Judicial District, Branch 18, in Cagayan de Oro City, presided over by
respondent Judge, a complaint against petitioner for legal separation, on the ground of concubinage,
with a petition for support and payment of damages. This case was docketed as Civil Case No. 10636.
On 13 October 1986, private respondent also filed with the Municipal Trial Court, General Santos City,
a complaint against petitioner for concubinage, which was docketed on 23 October 1986 as Criminal
Case No. 15437111. On 14 November 1986, application for the provisional remedy of
support pendente lite, pending a decision in the action for legal separation, was filed by private
respondent in the civil case for legal separation. The respondent judge, as already stated, on 10
December 1986, ordered The payment of support pendente lite.

In this recourse, petitioner contends that the civil action for legal separation and the incidents
consequent thereto, such as, application for support pendente lite, should be suspended in view of the
criminal case for concubinage filed against him the private respondent. In support of his contention,
petitioner cites Art. III. Sec. 3 of the 1985 Rules on Criminal Procedure, which states:

SEC. 3. Other Civil action arising from offenses. Whenever the offended party shall
have instituted the civil action to enforce the civil liability arising from the offense. as
contemplated in the first Section 1 hereof, the following rules shall be observed:

(a) After a criminal action has been commenced the pending civil action arising from
the same offense shall be suspended, in whatever stage it may be found, until final
judgment in the criminal proceeding has been rendered. . . .

The civil action for legal separation, grounded as it is on concubinage, it is petitioner's position that
such civil action arises from, or is inextricably tied to the criminal action for concubinage, so that all
proceedings related to legal separation will have to be suspended to await conviction or acquittal for

1
concubinage in the criminal case. Authority for this position is this Court's decision in the case
of Jerusalem vs. Hon. Roberto Zurbano. 1

Petitioner's contention is not correct.

In Jerusalem, the Court's statement to the effect that suspension of an action for legal separation
would be proper if an allegation of concubinage is made therein, relied solely on Sec. 1 of Rule 107 of
the then provisions of the Rules of Court on criminal procedure, to wit:

Sec. 1. Rules governing civil actions arising from offenses.-Except as otherwise

provided by law, the following rules shall he observed:

(a) When a criminal action is instituted, the civil action for recovery of civil liability
arising from the offense charged is impliedly instituted with the criminal action, unless
the offended party expressly waives the civil action or reserves his right to institute it
separately;

(b) Criminal and civil actions arising from the same offense may be instituted
separately, but after the criminal action has been commenced the civil action can not
be instituted until final judgment has been rendered in the criminal action;

(c) After a criminal action has been commenced, no civil action arising from the same
offense can be prosecuted and the same shall be suspended in whatever stage it may
be found until final judgment in the criminal proceeding has been rendered ...
(Emphasis supplied)

The provisions last quoted did not clearly state, as the 1985 Rules do, that the civil action to be
suspended, with or upon the filing of a criminal action, is one which is "to enforce the civil liability
arising from the offense". In other words, in view of the amendment under the 1985 Rules on Criminal
Procedure, a civil action for legal separation, based on concubinage, may proceed ahead of, or
simultaneously with, a criminal action for concubinage, because said civil action is not one "to enforce
the civil liability arising from the offense" even if both the civil and criminal actions arise from or are
related to the same offense. Such civil action is one intended to obtain the right to live separately, with
the legal consequences thereof, such as, the dissolution of the conjugal partnership of gains, custody
of offsprings, support, and disqualification from inheriting from the innocent spouse, among others. As
correctly pointed out by the respondent Judge in his Order dated 5 August 1987:

The unreported case of JERUSALEM vs. Hon. Roberto Zurbano, Judge of CFI of
Antique, et al., L-11935, April 24, 1959 (105 Phil. 1277) is not controlling. It applied
paragraph C of Sec. 1, of then Rule 107 of the Rules of Court, which reads:

After a criminal action has been commenced, no civil action arising

from the same offense can be prosecuted and the same shall be
suspended, in whatever stage it may be found, until final judgment in
the criminal proceeding has been rendered. (Emphasis supplied)

The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal Procedure which refers to "civil
actions to enforce the civil liability arising from the offense" as contemplated in the first paragraph of
Section 1 of Rule 111-which is a civil action "for recovery of civil liability arising from the offense
charged." Sec. 1, Rule 111, (1985) is specific that it refers to civil action for the recovery of civil liability
arising from the offense charged. Whereas, the old Sec. 1 (c), Rule 107 simply referred to "Civil action
arising from the offense."

2
As earlier noted this action for legal separation is not to recover civil liability, in the main, but is aimed
at the conjugal rights of the spouses and their relations to each other, within the contemplation of
Articles 7 to 108, of the Civil Code."2

Petitioner also argues that his conviction for concubinage will have to be first secured before the action
for legal separation can prosper or succeed, as the basis of the action for legal separation is his alleged
offense of concubinage.

Petitioner's assumption is erroneous.

A decree of legal separation, on the ground of concubinage, may be issued upon proof by
preponderance of evidence in the action for legal separation. 3 No criminal proceeding or conviction is
necessary. To this end, the doctrine in Francisco vs. Tayao 4 has been modified, as that case was
decided under Act. No. 2710, when absolute divorce was then allowed and had for its grounds the
same grounds for legal separation under the New Civil Code, with the requirement, under such former
law, that the guilt of defendant spouses had to be established by final judgment in a criminal action.
That requirement has not been reproduced or adopted by the framers of the present Civil Code, and
the omission has been uniformly accepted as a modification of the stringent rule in Francisco v. Tayao.5

Petitioner's attempt to resist payment of support pendente lite to his wife must also fail, as we find no
proof of grave abuse of discretion on the part of the respondent Judge in ordering the same.
Support pendente lite, as a remedy, can be availed of in an action for legal separation, and granted at
the discretion of the judge. 6 If petitioner finds the amount of support pendente lite ordered as too
onerous, he can always file a motion to modify or reduce the same. 7

Petitioner lastly seeks to have the respondent Judge disqualified from hearing the case, as the grant
of supportpendente lite and the denial of the motion to suspend hearings in the case, are taken by the
petitioner as a disregard of applicable laws and existing doctrines, thereby showing the respondent
Judge's alleged manifest partiality to private respondent.

Petitioner's contention is without merit. Divergence of opinions between a judge hearing a case and a
party's counsel, as to applicable laws and jurisprudence, is not a sufficient ground to disqualify the
judge from hearing the case, on the ground of bias and manifest partiality. This is more so, in this
case, where we find the judge's disposition of petitioner's motions to be sound and well-taken.

WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner.

SO ORDERED.

3
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

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.

Benigno M. Puno for private respondent.

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 Gaviola-
Sabalones, 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.

4
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 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.

After hearing, the Court of Appeals, in an order dated April 7, 1992, granted the preliminary injunction
prayed for by his wife.2

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.

5
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

6
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.

7
 SOMOSA-RAMOS V. VAMENTA

Nature: Preliminary mandatory injunction in a legal separation case

Ponente: Fernando
Date: 29 July 1972

DOCTRINE: The six-month cooling off period from filing of the legal separation action does
not bar resolution of issues regarding management of properties.

FACTS:
Relevant Provision of Law: NCC, Art. 103

Lucy Somosa-Ramos filed an action for legal separation, concubinage, and an attempt against her
life against husband respondent Clemente Ramos. There, she also sought the issuance of a writ of
preliminary mandatory injunction for the return of her paraphernal property which was currently
under Clementes management.

The lower court denied the writ for prelim. mandatory injunction because Judge Vamenta was of
the impression that Art. 103 barred such action. Art. 103 dictates that no hearing on an action for
legal separation shall be held before the lapse of six months from the filing of the petition.

ISSUES:

(1) W/N Art. 103 bars the issuance of a writ of prelim. mandatory injunction over properties
RULING: Art. 103 does not bar the court from hearing questions regarding property management
between the spouses. Art. 103 provides that the husband shall continue to manage the conjugal
partnership property but if the court deems it proper, it may appoint another to manage said
property. This is basis enough for allowing the court to resolve issues regarding management of
property even before the six-month cooling off period has been lifted.

The case of Araneta v. Concepcion also states that the six-month prohibition also does not cover
actions regarding custody, alimony, and support pendent lite.

(2) Why is there a need for a six-month period before hearing on the action for legal separation?
RULING: Cases generally require a speedy resolution. This is not the case in legal separation
where there is hope that the parties may settle their differences and even abandon such action

NOTES: Case became moot because the six-month period had already lapsed by the time of the
SC decision.

8
 FIRST DIVISION

G.R. No. 153206 October 23, 2006

ONG ENG KIAM a.k.a. WILLIAM ONG, petitioner,

vs.
LUCITA G. ONG, respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

Before this Court is a Petition for Review seeking the reversal of the Decision 1 of the Court of
Appeals (CA) in CA G.R. CV No. 59400 which affirmed in toto the Decision of the Regional Trial
Court (RTC) Branch 41, Dagupan City granting the petition for legal separation filed by herein
respondent, as well as the Resolution2 of the CA dated April 26, 2002 which denied petitioners
motion for reconsideration.

Ong Eng Kiam, also known as William Ong (William) and Lucita G. Ong (Lucita) were married
on July 13, 1975 at the San Agustin Church in Manila. They have three children: Kingston,
Charleston, and Princeton who are now all of the age of majority.3

On March 21, 1996, Lucita filed a Complaint for Legal Separation under Article 55 par. (1) of the
Family Code4before the Regional Trial Court (RTC) of Dagupan City, Branch 41 alleging that her
life with William was marked by physical violence, threats, intimidation and grossly abusive
conduct.5

Lucita claimed that: soon after three years of marriage, she and William quarreled almost every
day, with physical violence being inflicted upon her; William would shout invectives at her like
"putang ina mo", "gago", "tanga", and he would slap her, kick her, pull her hair, bang her head
against concrete wall and throw at her whatever he could reach with his hand; the causes of these
fights were petty things regarding their children or their business; William would also scold and
beat the children at different parts of their bodies using the buckle of his belt; whenever she tried
to stop William from hitting the children, he would turn his ire on her and box her; on December
9, 1995, after she protested with Williams decision to allow their eldest son Kingston to go to
Bacolod, William slapped her and said, "it is none of your business"; on December 14, 1995, she
asked William to bring Kingston back from Bacolod; a violent quarrel ensued and William hit her
on her head, left cheek, eye, stomach, and arms; when William hit her on the stomach and she bent
down because of the pain, he hit her on the head then pointed a gun at her and asked her to leave

9
the house; she then went to her sisters house in Binondo where she was fetched by her other
siblings and brought to their parents house in Dagupan; the following day, she went to her parents
doctor, Dr. Vicente Elinzano for treatment of her injuries.6

William for his part denied that he ever inflicted physical harm on his wife, used insulting language
against her, or whipped the children with the buckle of his belt. While he admits that he and Lucita
quarreled on December 9, 1995, at their house in Jose Abad Santos Avenue, Tondo, Manila, he
claimed that he left the same, stayed in their Greenhills condominium and only went back to their
Tondo house to work in their office below. In the afternoon of December 14, 1995, their
laundrywoman told him that Lucita left the house.7

On January 5, 1998, the RTC rendered its Decision decreeing legal separation, thus:

WHEREFORE, premises considered, judgment is hereby rendered decreeing the legal

separation of plaintiff and defendant, with all the legal effects attendant thereto, particularly
the dissolution and liquidation of the conjugal partnership properties, for which purpose
the parties are hereby ordered to submit a complete inventory of said properties so that the
Court can make a just and proper division, such division to be embodied in a supplemental
decision.

SO ORDERED.8

The RTC found that:

It is indubitable that plaintiff (Lucita) and defendant (William) had their frequent quarrels
and misunderstanding which made both of their lives miserable and hellish. This is even
admitted by the defendant when he said that there was no day that he did not quarrel with
his wife. Defendant had regarded the plaintiff negligent in the performance of her wifely
duties and had blamed her for not reporting to him about the wrongdoings of their children.
(citations omitted)

These quarrels were always punctuated by acts of physical violence, threats and
intimidation by the defendant against the plaintiff and on the children. In the process,
insulting words and language were heaped upon her. The plaintiff suffered and endured the
mental and physical anguish of these marital fights until December 14, 1995 when she had
reached the limits of her endurance. The more than twenty years of her marriage could not
have been put to waste by the plaintiff if the same had been lived in an atmosphere of love,
harmony and peace. Worst, their children are also suffering. As very well stated in
plaintiffs memorandum, "it would be unthinkable for her to throw away this twenty years
of relationship, abandon the comforts of her home and be separated from her children,
whom she loves, if there exists no cause, which is already beyond her endurance.9

William appealed to the CA which affirmed in toto the RTC decision. In its Decision dated
October 8, 2001, the CA found that the testimonies for Lucita were straightforward and credible
and the ground for legal separation under Art. 55, par. 1 of the Family Code, i.e., physical violence
and grossly abusive conduct directed against Lucita, were adequately proven.10

10
As the CA explained:

The straightforward and candid testimonies of the witnesses were uncontroverted and
credible. Dr. Elinzanos testimony was able to show that the [Lucita] suffered several
injuries inflicted by [William]. It is clear that on December 14, 1995, she sustained redness
in her cheek, black eye on her left eye, fist blow on the stomach, blood clot and a blackish
discoloration on both shoulders and a "bump" or "bukol" on her head. The presence of these
injuries was established by the testimonies of [Lucita] herself and her sister, Linda Lim.
The Memorandum/Medical Certificate also confirmed the evidence presented and does not
deviate from the doctors main testimony --- that [Lucita] suffered physical violence on
[sic] the hands of her husband, caused by physical trauma, slapping of the cheek, boxing
and fist blows. The effect of the so-called alterations in the Memorandum/Medical
Certificate questioned by [William] does not depart from the main thrust of the testimony
of the said doctor.

Also, the testimony of [Lucita] herself consistently and constantly established that
[William] inflicted repeated physical violence upon her during their marriage and that she
had been subjected to grossly abusive conduct when he constantly hurled invectives at her
even in front of their customers and employees, shouting words like, "gaga", "putang ina
mo," tanga," and "you dont know anything."

These were further corroborated by several incidents narrated by Linda Lim who lived in
their conjugal home from 1989 to 1991. She saw her sister after the December 14, 1995
incident when she (Lucita) was fetched by the latter on the same date. She was a witness
to the kind of relationship her sister and [William] had during the three years she lived with
them. She observed that [William] has an "explosive temper, easily gets angry and becomes
very violent." She cited several instances which proved that William Ong indeed treated
her wife shabbily and despicably, in words and deeds.

xxx

That the physical violence and grossly abusive conduct were brought to bear upon [Lucita]
by [William] have been duly established by [Lucita] and her witnesses. These incidents
were not explained nor controverted by [William], except by making a general denial
thereof. Consequently, as between an affirmative assertion and a general denial, weight
must be accorded to the affirmative assertion.

The grossly abusive conduct is also apparent in the instances testified to by [Lucita] and
her sister. The injurious invectives hurled at [Lucita] and his treatment of her, in its entirety,
in front of their employees and friends, are enough to constitute grossly abusive conduct.
The aggregate behavior of [William] warrants legal separation under grossly abusive
conduct. x x x11

William filed a motion for reconsideration which was denied by the CA on April 26, 2002.12

Hence the present petition where William claims that:

11
 I

THE COURT OF APPEALS COMMITTED AN ERROR OF LAW IN DISREGARDING

CLEAR EVIDENCE THAT THE PETITION FOR LEGAL SEPARATION WAS
INSTITUTED BY THE PRIVATE RESPONDENT FOR THE SOLE PURPOSE OF
REMOVING FROM PETITIONER THE CONTROL AND OWNERSHIP OF THEIR
CONJUGAL PROPERTIES AND TO TRANSFER THE SAME TO PRIVATE
RESPONDENTS FAMILY.

II

THE COURT OF APPEALS COMMITTED AN ERROR OF LAW IN DISREGARDING

CLEAR EVIDENCE REPUDIATING PRIVATE RESPONDENTS CLAIM OF
REPEATED PHYSICAL VIOLENCE AND GROSSLY ABUSIVE CONDUCT ON THE
PART OF PETITIONER.13

William argues that: the real motive of Lucita and her family in filing the case is to wrest control
and ownership of properties belonging to the conjugal partnership; these properties, which include
real properties in Hong Kong, Metro Manila, Baguio and Dagupan, were acquired during the
marriage through his (Williams) sole efforts; the only parties who will benefit from a decree of
legal separation are Lucitas parents and siblings while such decree would condemn him as a
violent and cruel person, a wife-beater and child abuser, and will taint his reputation, especially
among the Filipino-Chinese community; substantial facts and circumstances have been overlooked
which warrant an exception to the general rule that factual findings of the trial court will not be
disturbed on appeal; the findings of the trial court that he committed acts of repeated physical
violence against Lucita and their children were not sufficiently established; what took place were
disagreements regarding the manner of raising and disciplining the children particularly
Charleston, Lucitas favorite son; marriage being a social contract cannot be impaired by mere
verbal disagreements and the complaining party must adduce clear and convincing evidence to
justify legal separation; the CA erred in relying on the testimonies of Lucita and her witnesses, her
sister Linda Lim, and their parents doctor, Dr. Vicente Elinzanzo, whose testimonies are tainted
with relationship and fraud; in the 20 years of their marriage, Lucita has not complained of any
cruel behavior on the part of William in relation to their marital and family life; William expressed
his willingness to receive respondent unconditionally however, it is Lucita who abandoned the
conjugal dwelling on December 14, 1995 and instituted the complaint below in order to appropriate
for herself and her relatives the conjugal properties; the Constitution provides that marriage is an
inviolable social institution and shall be protected by the State, thus the rule is the preservation of
the marital union and not its infringement; only for grounds enumerated in Art. 55 of the Family
Code, which grounds should be clearly and convincingly proven, can the courts decree a legal
separation among the spouses.14

Respondent Lucita in her Comment, meanwhile, asserts that: the issues raised in the present
petition are factual; the findings of both lower courts rest on strong and clear evidence borne by
the records; this Court is not a trier of facts and factual findings of the RTC when confirmed by
the CA are final and conclusive and may not be reviewed on appeal; the contention of William
that Lucita filed the case for legal separation in order to remove from William the control and

12
ownership of their conjugal properties and to transfer the same to Lucitas family is absurd; Lucita
will not just throw her marriage of 20 years and forego the companionship of William and her
children just to serve the interest of her family; Lucita left the conjugal home because of the
repeated physical violence and grossly abusive conduct of petitioner.15

Petitioner filed a Reply, reasserting his claims in his petition,16 as well as a Memorandum where
he averred for the first time that since respondent is guilty of abandonment, the petition for legal
separation should be denied following Art. 56, par. (4) of the Family Code.17 Petitioner argues that
since respondent herself has given ground for legal separation by abandoning the family simply
because of a quarrel and refusing to return thereto unless the conjugal properties were placed in
the administration of petitioners in-laws, no decree of legal separation should be issued in her
favor.18

Respondent likewise filed a Memorandum reiterating her earlier assertions.19

We resolve to deny the petition.

It is settled that questions of fact cannot be the subject of a petition for review under Rule 45 of
the Rules of Court. The rule finds more stringent application where the CA upholds the findings
of fact of the trial court. In such instance, this Court is generally bound to adopt the facts as
determined by the lower courts.20

The only instances when this Court reviews findings of fact are:

(1) when the findings are grounded entirely on speculation, surmises or conjectures; (2)
when the inference made is manifestly mistaken, absurd or impossible; (3) when there is
grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts;
(5) when the findings of facts are conflicting; (6) when in making its findings the Court of
Appeals went beyond the issues of the case, or its findings are contrary to the admissions
of both the appellant and the appellee; (7) when the findings are contrary to that of the trial
court; (8) when the findings are conclusions without citation of specific evidence on which
they are based; (9) when the facts set forth in the petition as well as in the petitioners main
and reply briefs are not disputed by the respondent; (10) when the findings of fact are
premised on the supposed absence of evidence and contradicted by the evidence on record;
and (11) when the Court of Appeals manifestly overlooked certain relevant facts not
disputed by the parties, which, if properly considered, would justify a different
conclusion.21

As petitioner failed to show that the instant case falls under any of the exceptional circumstances,
the general rule applies.

Indeed, this Court cannot review factual findings on appeal, especially when they are borne out by
the records or are based on substantial evidence.22 In this case, the findings of the RTC were
affirmed by the CA and are adequately supported by the records.

13
As correctly observed by the trial court, William himself admitted that there was no day that he
did not quarrel with his wife, which made his life miserable, and he blames her for being negligent
of her wifely duties and for not reporting to him the wrongdoings of their children.23

Lucita and her sister, Linda Lim, also gave numerous accounts of the instances when William
displayed violent temper against Lucita and their children; such as: when William threw a steel
chair at Lucita;24 threw chairs at their children;25 slapped Lucita and utter insulting words at
her;26 use the buckle of the belt in whipping the children;27pinned Lucita against the wall with his
strong arms almost strangling her, and smashed the flower vase and brick rocks and moldings
leaving the bedroom in disarray;28 shouted at Lucita and threw a directory at her, in front of Linda
and the employees of their business, because he could not find a draft letter on his table;29 got mad
at Charleston for cooking steak with vetchin prompting William to smash the plate with steak and
hit Charleston, then slapped Lucita and shouted at her "putang ina mo, gago, wala kang pakialam,
tarantado" when she sided with Charleston;30 and the December 9 and December 14, 1995
incidents which forced Lucita to leave the conjugal dwelling.31

Lucita also explained that the injuries she received on December 14, 1995, were not the first. As
she related before the trial court:

q. You stated on cross examination that the injuries you sustained on December 14, 1995
were the most serious?

a. Unlike before I considered December 14, 1995 the very serious because before it is only
on the arm and black eye, but on this December 14, I suffered bruises in all parts of my
body, sir.32

To these, all William and his witnesses, could offer are denials and attempts to downplay the said
incidents.33

As between the detailed accounts given for Lucita and the general denial for William, the Court
gives more weight to those of the former. The Court also gives a great amount of consideration to
the assessment of the trial court regarding the credibility of witnesses as trial court judges enjoy
the unique opportunity of observing the deportment of witnesses on the stand, a vantage point
denied appellate tribunals.34 Indeed, it is settled that the assessment of the trial court of the
credibility of witnesses is entitled to great respect and weight having had the opportunity to observe
the conduct and demeanor of the witnesses while testifying.35

In this case, the RTC noted that:

Williams denial and that of his witnesses of the imputation of physical violence committed
by him could not be given much credence by the Court. Since the office secretary Ofelia
Rosal and the family laundrywoman Rosalino Morco are dependent upon defendant for
their livelihood, their testimonies may be tainted with bias and they could not be considered
as impartial and credible witnesses. So with Kingston Ong who lives with defendant and
depends upon him for support.36

14
Parenthetically, William claims that that the witnesses of Lucita are not credible because of their
relationship with her. We do not agree. Relationship alone is not reason enough to discredit and
label a witnesss testimony as biased and unworthy of credence37 and a witness relationship to
one of the parties does not automatically affect the veracity of his or her testimony.38 Considering
the detailed and straightforward testimonies given by Linda Lim and Dr. Vicente Elinzano,
bolstered by the credence accorded them by the trial court, the Court finds that their testimonies
are not tainted with bias.

William also posits that the real motive of Lucita in filing the case for legal separation is in order
for her side of the family to gain control of the conjugal properties; that Lucita was willing to
destroy his reputation by filing the legal separation case just so her parents and her siblings could
control the properties he worked hard for. The Court finds such reasoning hard to believe. What
benefit would Lucita personally gain by pushing for her parents and siblings financial interests
at the expense of her marriage? What is more probable is that there truly exists a ground for legal
separation, a cause so strong, that Lucita had to seek redress from the courts. As aptly stated by
the RTC,

...it would be unthinkable for her to throw away this twenty years of relationship, abandon
the comforts of her home and be separated from her children whom she loves, if there exists
no cause, which is already beyond her endurance.39

The claim of William that a decree of legal separation would taint his reputation and label him as
a wife-beater and child-abuser also does not elicit sympathy from this Court. If there would be
such a smear on his reputation then it would not be because of Lucitas decision to seek relief from
the courts, but because he gave Lucita reason to go to court in the first place.

Also without merit is the argument of William that since Lucita has abandoned the family, a decree
of legal separation should not be granted, following Art. 56, par. (4) of the Family Code which
provides that legal separation shall be denied when both parties have given ground for legal
separation. The abandonment referred to by the Family Code is abandonment without justifiable
cause for more than one year.40 As it was established that Lucita left William due to his abusive
conduct, such does not constitute abandonment contemplated by the said provision.

As a final note, we reiterate that our Constitution is committed to the policy of strengthening the
family as a basic social institution.41 The Constitution itself however does not establish the
parameters of state protection to marriage and the family, as it remains the province of the
legislature to define all legal aspects of marriage and prescribe the strategy and the modalities to
protect it and put into operation the constitutional provisions that protect the same.42With the
enactment of the Family Code, this has been accomplished as it defines marriage and the family,
spells out the corresponding legal effects, imposes the limitations that affect married and family
life, as well as prescribes the grounds for declaration of nullity and those for legal separation.43 As
Lucita has adequately proven the presence of a ground for legal separation, the Court has no reason
but to affirm the findings of the RTC and the CA, and grant her the relief she is entitled to under
the law.

WHEREFORE, the petition is DENIED for lack of merit. Costs against petitioner.

15
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-10033 December 28, 1956

BENJAMIN BUGAYONG, plaintiff-appellant,

vs.
LEONILA GINEZ, defendant-appellee.

Florencio Dumapias for appellant.

Numeriano Tanopo, Jr. for appellee.

FELIX, J.:

This is a case for legal separation filed in the Court of First Instance of Pangasinan wherein on motion
of the defendant, the case was dismissed. The order of dismissal was appealed to the Court of
Appeals, but said Tribunal certified the case to the Court on the ground that there is absolutely no
question of fact involved, the motion being predicated on the assumption as true of the very facts
testified to by plaintiff-husband.

The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a serviceman in the United
States Navy, was married to defendant Leonila Ginez on August 27, 1949, at Asingan, Pangasinan,
while on furlough leave. Immediately after their marriage, the couple lived with their sisters who later
moved to Sampaloc, Manila. After some time, or about July, 1951, Leonila Ginez left the dwelling of
her sister-in-law and informed her husband by letter that she had gone to reside with her mother in
Asingan, Pangasinan, from which place she later moved to Dagupan City to study in a local college
there.

As early as July, 1951, Benjamin Bugayong began receiving letters from Valeriana Polangco (plaintiff's
sister-in-law) and some from anonymous writers(which were not produced at the hearing) informing
him of alleged acts of infidelity of his wife which he did not even care to mention. On cross-examination,
plaintiff admitted that his wife also informed him by letter, which she claims to have destroyed, that a
certain "Eliong" kissed her. All these communications prompted him in October, 1951 to seek the
advice of the Navy Chaplain as to the propriety of a legal separation between him and his wife on
account of the latter's alleged acts of infidelity, and he was directed to consult instead the navy legal
department.

In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife whom he met in the
house of one Mrs. Malalang, defendant's godmother. She came along with him and both proceeded
to the house of Pedro Bugayong, a cousin of the plaintiff-husband, where they stayed and lived for 2
nights and 1 day as husband and wife. Then they repaired to the plaintiff's house and again passed
the night therein as husband and wife. On the second day, Benjamin Bugayong tried to verify from his
wife the truth of the information he received that she had committed adultery but Leonila, instead of
answering his query, merely packed up and left, which he took as a confirmation of the acts of infidelity

16
imputed on her. After that and despite such belief, plaintiff exerted efforts to locate her and failing to
find her, he went to Bacarra, Ilocos Norte, "to soothe his wounded feelings".

On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of Pangasinan a
complaint for legal separation against his wife, Leonila Ginez, who timely filed an answer vehemently
denying the averments of the complaint and setting up affirmative defenses. After the issues were
joined and convinced that a reconciliation was not possible, the court set the case for hearing on June
9, 1953. Plaintiff's counsel announced that he was to present 6 witnesses but after plaintiff-husband
finished testifying in his favor, counsel for the defendant orally moved for the dismissal of the
complaint, but the Court ordered him to file a written motion to that effect and gave plaintiff 10 days to
answer the same.

The motion to dismiss was predicted on the following grounds: (1) Assuming arguendo the truth of the
allegations of the commission of "acts of rank infidelity amounting to adultery", the cause of action, if
any, is barred by the statute of limitations; (2) That under the same assumption, the act charged have
been condoned by the plaintiff-husband; and (3) That the complaint failed to state a cause of action
sufficient for this court to render a valid judgment.

The motion to dismiss was answered by plaintiff and the Court, considering only the second ground
of the motion to dismiss i. e., condonation, ordered the dismissal of the action. After the motion for
reconsideration filed by plaintiff was denied, the case was taken up for review to the Court of Appeals,
appellant's counsel maintaining that the lower court erred:

(a) In so prematurely dismissing the case;

(b) In finding that there were condonation on the part of plaintiff-appellant; and

(c) In entertaining condonation as a ground for dismissal inasmuch as same was not raised in
the answer or in a motion to dismiss.

As the questions raised in the brief were merely questions of law, the Court of Appeals certified the
case to Superiority.

The Civil Code provides:

ART. 97. A petition for legal separation may be filed:

(1) For adultery on the part of the wife and for concubinage for the part of the husband as
defined on the Penal Code; or

(2) An attempt by one spouse against the life of the other.

ART. 100. The legal separation may be claimed only by the innocent spouse, provided there
has been no condonation of or consent to the adultery or concubinage. Where both spouses
are offenders, a legal separation cannot by either of them. Collusion between the parties to
obtain legal separation shall cause the dismissal of the petition.

ART. 102. An action for legal separation cannot be filed except within one year from and after
the date on which the plaintiff became cognizant of the cause and within five years from and
after the date when such cause occurred.

17
As the only reason of the lower Court for dismissing the action was the alleged condonation of the
charges of adultery that the plaintiff-husband had preferred in the complaint against his wife, We will
disregard the other 2 grounds of the motion to dismiss, as anyway they have not been raised in
appellant's assignment of errors.

Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as
stated in I Bouver's Law Dictionary, p. 585, condonation is the "conditional forgiveness or remission,
by a husband or wife of a matrimonial offense which the latter has committed". It is to be noted,
however, that in defendant's answer she vehemently and vigorously denies having committed any act
of infidelity against her husband, and even if We were to give full weight to the testimony of the plaintiff,
who was the only one that had the chance of testifying in Court and link such evidence with the
averments of the complaint, We would have to conclude that the facts appearing on the record are far
from sufficient to establish the charge of adultery, or, as the complaint states, of "acts of rank infidelity
amounting to adultery" preferred against the defendant. Certainly, the letter that plaintiff claims to have
received from his sister-in-law Valeriana Polangco, which must have been too vague and indefinite as
to defendant's infidelity to deserve its production in evidence; nor the anonymous letters which plaintiff
also failed to present; nor the alleged letter that, according to plaintiff, his wife addressed to
him admitting that she had been kissed by one Eliong, whose identity was not established and
which admission defendant had no opportunity to deny because the motion to dismiss was filed soon
after plaintiff finished his testimony in Court, do not amount to anything that can be relied upon.

But this is not a question at issue. In this appeal, We have to consider plaintiff's line of conduct under
the assumption that he really believed his wife guilty of adultery. What did he do in such state of mind.
In August, 1952, he went to Pangasinan and looked for his wife and after finding her they lived together
as husband and wife for 2 nights and 1 day, after which he says that he tried to verify from her the
truth of the news he had about her infidelity, but failed to attain his purpose because his wife, instead
of answering his query on the matter, preferred to desert him, probably enraged for being subjected
to such humiliation. And yet he tried to locate her, though in vain. Now, do the husband's attitude of
sleeping with his wife for 2 nights despite his alleged belief that she was unfaithful to him, amount to
a condonation of her previous and supposed adulterous acts? In the order appealed from, the Court a
quo had the following to say on this point:

In the hearing of the case, the plaintiff further testified as follows:

Q. Now Mr. Bugayong, you have filed this action for legal separation from your wife. Please
tell this Hon. Court why you want to separate from your wife? A. I came to know that my
wife is committing adultery, I consulted the chaplain and he told me to consult the legal adviser.
(p. 11, t.s.n.)

Q. Did you finally locate her?--A. Four days later or on the fifth day since my arrival she went
to the house of our god-mother, and as a husband I went to her to come along with me in our
house but she refused. (p. 12, t.s.n.) l awphil.net

Q. What happened next? A. I persuaded her to come along with me. She consented but I
did not bring her home but brought her to the house of my cousin Pedro Bugayong. (p. 12,
t.s.n.)

Q. How long did you remain in the house of your cousin Pedro Bugayong? A. One day and
one night. (p. 12. t.s.n.)

Q. That night when you stayed in the house of your cousin Pedro Bugayong as husband and
wife, did you slept together? A. Yes, sir. (p. 19, t.s.n.)

18
Q. On the next night, when you slept in your own house, did you sleep together also as
husband and wife? A. Yes, sir. (p. 19. t.s.n.)

Q. When was that? A. That was in August, 1952. (p. 19 t.s.n.)

Q. How many nights did you sleep together as husband and wife? A. Only two nights. (p.
19, t.s.n.)

The New Civil Code of the Philippines, in its Art. 97, says:

A petition for legal separation may be filed:

(1) For adultery on the part of the wife and concubinage on the part of the husband as defined
on the Penal Code.

and in its Art. 100 it says:

lawphil.net

The legal separation may be claimed only by the innocent spouse, provided there has been
no condonation of or consent to the adultery or concubinage. Where both spouses are
offenders, legal separation cannot be claimed by either of them. Collusion between the parties
to obtain legal separation shall cause the dismissal of the petition.

A detailed examination of the testimony of the plaintiff-husband, especially those portions

quoted above, clearly shows that there was a condonation on the part of the husband for the
supposed "acts of rank infidelity amounting to adultery" committed by defendant-wife.
Admitting for the sake of argument that the infidelities amounting to adultery were committed
by the defendant, a reconciliation was effected between her and the plaintiff. The act of the
latter in persuading her to come along with him, and the fact that she went with him and
consented to be brought to the house of his cousin Pedro Bugayong and together they slept
there as husband and wife for one day and one night, and the further fact that in the second
night they again slept together in their house likewise as husband and wife all these facts
have no other meaning in the opinion of this court than that a reconciliation between them was
effected and that there was a condonation of the wife by the husband. The reconciliation
occurred almost ten months after he came to know of the acts of infidelity amounting to
adultery.

In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that "condonation
is implied from sexual intercourse after knowledge of the other infidelity. such acts necessary
implied forgiveness. It is entirely consonant with reason and justice that if the wife freely
consents to sexual intercourse after she has full knowledge of the husband's guilt, her consent
should operate as a pardon of his wrong."

In Tiffany's Domestic and Family Relations, section 107 says:

Condonation. Is the forgiveness of a marital offense constituting a ground for divorce

and bars the right to a divorce. But it is on the condition, implied by the law when not
express, that the wrongdoer shall not again commit the offense; and also that he shall
thereafter treat the other spouse with conjugal kindness. A breach of the condition will
revive the original offense as a ground for divorce. Condonation may be express or
implied.

19
 It has been held in a long line of decisions of the various supreme courts of the different states
of the U. S. that 'a single voluntary act of sexual intercourse by the innocent spouse after
discovery of the offense is ordinarily sufficient to constitute condonation, especially as against
the husband'. (27 Corpus Juris Secundum, section 61 and cases cited therein).

In the lights of the facts testified to by the plaintiff-husband, of the legal provisions above
quoted, and of the various decisions above-cited, the inevitable conclusion is that the present
action is untenable.

Although no acts of infidelity might have been committed by the wife, We agree with the trial judge
that the conduct of the plaintiff-husband above narrated despite his belief that his wife was unfaithful,
deprives him, as alleged the offended spouse, of any action for legal separation against the offending
wife, because his said conduct comes within the restriction of Article 100 of the Civil Code.

The only general rule in American jurisprudence is that any cohabitation with the guilty party, after the
commission of the offense, and with the knowledge or belief on the part of the injured party of its
commission, will amount to conclusive evidence of condonation; but this presumption may be rebutted
by evidence (60 L. J. Prob. 73).

If there had been cohabitation, to what extent must it be to constitute condonation?

Single voluntary act of marital intercourse between the parties ordinarily is sufficient to
constitute condonation, and where the parties live in the same house, it is presumed that they
live on terms of matrimonial cohabitation (27 C. J. S., section 6-d).

A divorce suit will not be granted for adultery where the parties continue to live together after
it was known (Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac. 974) or there is sexual
intercourse after knowledge of adultery (Rogers vs. Rogers, 67 N. J. Eq. 534) or sleeping
together for a single night (Toulson vs. Toulson, 50 Atl. 401, citing Phinizy vs. Phinizy, 114 S.
E. 185, 154 Ga. 199; Collins vs. Collins, 193 So. 702), and many others. The resumption of
marital cohabitation as a basis of condonation will generally be inferred, nothing appearing to
the contrary, from the fact of the living together as husband and wife, especially as against the
husband (Marsh vs. Marsh, 14 N. J. Eq. 315).

There is no ruling on this matter in our jurisprudence but we have no reason to depart from the
doctrines laid down in the decisions of the various supreme courts of the United States above quoted.

There is no merit in the contention of appellant that the lower court erred in entertaining condonation
as a ground for dismissal inasmuch as same was not raised in the answer or in a motion to dismiss,
because in the second ground of the motion to dismiss. It is true that it was filed after the answer and
after the hearing had been commenced, yet that motion serves to supplement the averments of
defendant's answer and to adjust the issues to the testimony of plaintiff himself (section 4, Rule 17 of
the Rules of Court).

Wherefore, and on the strength of the foregoing, the order appealed from is hereby affirmed, with costs
against appellant. It is so ordered.

20
 BUSUEGO VS. OFFICE OF THE OMBUDSMAN MINDANAO
G.R. No. 196842
October 9, 2013

DOCTRINE:
The Ombudsman has full discretionary authority in the determination of probable cause during
a preliminary investigation.

FACTS:
Private respondent Rosa S. Busuego (Rosa) filed a complaint for: (1) Concubinage under
Article 334 of the Revised Penal Code; (2) violation of Republic Act No. 9262 (Anti-Violence Against
Women and Their Children); and (3) Grave Threats under Article 282 of the Revised Penal Code,
before the Office of the Ombudsman against her husband, Alfredo. Alfredo is the Chief of Hospital,
Davao Regional Hospital. They have 2 children. However, their marriage turned sour. She saw
photographs of, and love letters addressed to Alfredo from, other women. She confronted her husband
but he claimed ignorance of the existence of such letters.

An opportunity to work as nurse in N.Y. USA. Alfredo opposed. Nonetheless, Rosa completed
the requirements. However, before leaving, furious with Rosas pressing, Alfredo took his gun and
pointed it at Rosas temple. Alfredo was only staved off because Rosas mother arrived at the couples
house.

Rosa went to the US and was eventually joined by her 2 children, Alfred and Robert. Robert
eventually returned to Davao City to study medicine. Sometime in 1997, Rosa learned that a certain
Emy Sia (Sia) was living at their conjugal home. When Rosa asked Alfredo, he said that Sia, nurse at
the Regional Hospital, was just in a sorry plight and was allegedly raped by Rosas brother-in-law so
he allowed her to sleep at the maids quarters.

In October 2005, Rosa finally learned of Alfredos extra-marital relationships. Robert and the
housekeepers executed a joint affidavit to support Rosas allegations. Rosa and the other son Alfred
flew to Davao without informing Alfredo. She gathererd and consolidated information of her husbands
sexual affairs. She also averred that during the course of the marriage, Alfredo physically and verbally
abused her and her family. Alfredo denied all accusations. In their subsequent exchange of responsive
pleadings, Rosa maintained Alfredos culpability, and naturally, Alfredo claimed innocence.

In the course thereof, the procedural issue of Rosas failure to implead Sia and de Leon as
respondents cropped up. Alfredo insisted that Rosas complaint ought to be dismissed for failure to
implead his alleged concubines as respondents.

Specifically to dispose of that issue, the Ombudsman scheduled a clarificatory hearing where
both Rosa and Alfredo were represented by their respective counsels. The office of the Ombudsman
explained that the position of Alfredo would just prolong the conduct of the preliminary investigation
since Rosa can just re-file her complaint. The doctrine of res judicata does not apply in the preliminary
investigation stage. Hence, the counsel for Rosa was directed to submit to this Office the addresses
of the alleged mistresses so that they could be served with the Order directing them to file their counter-
affidavits. Rosa submitted an Ex-Parte Manifestation on the last known addresses of Julie de Leon
and Emy Sia (alleged mistresses.)

Ombudsman issued a Joint Order4 impleading Sia and de Leon as party-respondents in the
complaint for Concubinage and directing them to submit their respective counter-affidavits within a
period of time. Sia and de Leon did not submit their respective counter-affidavits.

21
 Alfredo opposed the Ombudsmans ruling to simply amend the complaint and implead the
alleged mistresses. He filed his Comment to the Provincial Prosecutor praying for the dismissal of the
complaint for failure to implead the two mistresses.

Ombudsman issued herein assailed Resolution, disposing of the procedural issues, which
states that the short cut procedure would delay the proceedings is misplaced, since Rosa could still
amend her complaint and re-file the case for the doctrine of res judicata will not apply. Alfredo filed a
Motion for Reconsideration excepting to the Ombudsmans ruling on the automatic inclusion of Sia as
respondent in the complaint and their indictment for the crime of Concubinage.

Nonetheless, the Ombudsman stood pat on its ruling, declared that the Partial Motion for
Reconsideration was filed out of time. Alfredo now comes to us on petition for certiorari alleging grave
abuse of discretion in the Ombudsmans finding of probable cause to indict him and Sia for
Concubinage.

ISSUE:
Whether or not the Ombudsman has full discretionary authority in the
determination of probable cause during a preliminary investigation.

RULING:
Yes. Therefore the Court sustain the Ombudsmans decision.

RATIO DECIDENDI:
The Ombudsman has full discretionary authority in the determination of probable cause during
a preliminary investigation. This is the reason why judicial review of the resolution of the Ombudsman
in the exercise of its power and duty to investigate and prosecute felonies and/or offenses of public
officers is limited to a determination of whether there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction. Courts are not empowered to substitute their judgment for that of the
Ombudsman.

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment
tantamount to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount
to an evasion of a positive duty or 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 or hostility. In this regard, petitioner failed to demonstrate the Ombudsman's abuse, much
less grave abuse, of discretion.

The Ombudsman merely followed the provisions of its Rules of Procedure. No information may
be filed and no complaint may be dismissed without the written authority or approval of the
ombudsman in cases falling within the jurisdiction of the Sandiganbyan, or of the proper Deputy
Ombudsman in all other cases.

Notably, Rosas complaint contained not just the Concubinage charge, but other charges:
violation of Republic Act No. 9262 and Grave Threats. Upon the Ombudsmans perusal, the complaint
was supported by affidavits corroborating Rosas accusations. Thus, at that stage, the Ombudsman
properly referred the complaint to Alfredo for comment. Nonetheless, while the Ombudsman found no
reason for outright dismissal, it deemed it fit to hold a clarificatory hearing to discuss the applicability
of Article 344 of the Revised Penal Code, the issue having been insisted upon by Alfredo.

Surely the procedural sequence of referral of the complaint to respondent for comment and
thereafter the holding of a clarificatory hearing is provided for in paragraph b, Section 2 and paragraphs
d and f, Section 4 of Rule II, which the Court have at the outset underscored. The Ombudsman merely

22
facilitated the amendment of the complaint to cure the defect pointed out by Alfredo. The
Ombudsmans primary jurisdiction, albeit concurrent with the DOJ, to conduct preliminary investigation
of crimes involving public officers, without regard to its commission in relation to office, had long been
settled in Sen. Honasan II v. The Panel of Investigating Prosecutors of DOJ.

The Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the
Sandiganbayan Law, as amended, do not give to the Ombudsman exclusive jurisdiction to investigate
offenses committed by public officers or employees. The authority of the Ombudsman to investigate
offenses involving public officers or employees is concurrent with other government investigating
agencies such as provincial, city and state prosecutors. However, the Ombudsman, in the exercise of
its primary jurisdiction over cases cognizable by the Sandiganbayan, may take over, at any stage,
from any investigating agency of the government, the investigation of such cases.

In other words, respondent DOJ Panel is not precluded from conducting any investigation of
cases against public officers involving violations of penal laws but if the cases fall under the exclusive
jurisdiction of the Sandiganbayan, the respondent Ombudsman may, in the exercise of its primary
jurisdiction take over at any stage.

Thus, with the jurisprudential declarations that the Ombudsman and the DOJ have concurrent
jurisdiction to conduct preliminary investigation, the respective heads of said offices came up with
OMB-DOJ Joint Circular No. 95-001 for the proper guidelines of their respective prosecutors in the
conduct of their investigations.

WHEREFORE the petition is DISMISSED.

23
 CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ, petitioner-
appellant,
vs.
EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee.

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

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

DOCTRINE: An action for legal separation is purely personal. Being personal in

character, the death of one party to the action causes the death of the action itself.

The right to the dissolution of the conjugal partnership of gains, 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 are vested exclusively in the persons
of the spouses and by their nature, such claims and disabilities are not assignable or
transmissible.

FACTS:

CARMEN O. LAPUZ SY filed a petition for legal separation against EUFEMIO. She
alleged that they were married civilly on 9/21/1934 and had lived together as husband
and wife continuously until 1943 when her husband abandoned her. They had no
child.
She prayed for the issuance of a decree, which would order defendant Eufemio to
be deprived of his share of the conjugal partnership profits.
EUFEMIO alleged affirmative and special defenses and counter-claimed for the
declaration of nullity ab initio of his marriage with Carmen because of his prior
and subsisting marriage, celebrated according to Chinese law and customs, with one
Go Hiok, alias Ngo Hiok.
During trial, petitioner Carmen died in a vehicular accident on May 1969.
Eufemio moved to dismiss the petition for legal separation on 2 grounds that the: (1)
petition for legal separation was filed beyond the 1-year period provided for in Article
102 of the Civil Code; and (b) death of Carmen abated the action for legal separation.
Counsel for deceased petitioner moved to substitute the deceased Carmen by her
father, Macario Lapuz. Counsel for Eufemio opposed the motion.
The court dismissed the case and 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 filed a petitioner for review of the order of dismissal, but the order of
dismissal was affirmed.

ISSUES: Does the death of the plaintiff before final decree, in an action for legal
separation, abate the action? YES

24
RULING:

An action for legal separation involves nothing more than the bed-and-board
separation of the spouses is purely personal. The Civil Code of the Philippines
recognizes in Article 100 allows only the innocent spouse (and no one else) to claim
legal separation and in 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.
Changes in property relations between spouses shows that they are solely the effect
of the decree of legal separation. Hence, they cannot survive the death of the
plaintiff if it occurs prior to the decree.
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.
Regarding Eufemios petition 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.

25
 SIOCHI V. GOZON

Facts:

This case involves a 30,000 sq.m. parcel of land. The property is situated in Malabon, Metro
Manila and is registered in the name of Alfredo Gozon (Alfredo), married to
Elvira Gozon (Elvira).

On 23 December 1991, Elvira filed with the RTC of Cavite City a petition for legal separation
against her husband Alfredo. On Jan 2, 1992, Elvira filed a notice of lis pendens, which was then
annotated on TCT no. 5357.

While the legal separation case was still pending, Alfredo and Mario Siochi (Mario) entered into
an agreement to buy and sell (agreement) involving the property for the price of P18 million.

However, despite repeated demands from Mario, Alfredo failed to comply with the stipulations
provided in the agreement. After paying the P5 million earnest money as partial payment of the
purchase price, Mario took possession of the property. On September 6, 1993, the agreement was
annotated on TCT no. 5357.

Meanwhile, on 29 June 1994, the Cavite RTC rendered a decision in the legal separation case,
which granted the same. The RTC ordered among others that, the conjugal partnership of gains
of the spouses is hereby declared dissolved and liquidated. As regards the property, it held that it
is deemed conjugal property.

Alfredo executed a deed of donation over the property in favor of their daughter, Winifred Gozon.
Later on, Alfredo through an SPA executed by his daughter Winifred, sold the property to IDRI
and the latter paid the purchase price in full. A new TCT was issued by the Register of Deeds in
favor of IDRI.

Mario then filed with the 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.

RTC: Malabon RTC upheld original agreement to buy and sell between Mario and Alfredo and
declared voidhe sale by Alfredo and Winifred to Inter-Dimensional.

CA: Court of Appeals said agreement between Mario and Alfredo is void because (1) it was
entered into without the consent of Elvira, Alfredos wife; and, (2) Alfredos undivided share
has been forfeited in favour of Winifred by the grant of legal separation by the Cavite RTC.

Issue:
Whether or not Alfredo may sell the conjugal property, being the sole administrator of the same
without obtaining the consent of Elvira?

26
Held:

NO.
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.

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)

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. 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. Even 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. 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.

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.

27
 VIRGILIO MAQUILAN vs. DITA MAQUILAN
G.R. No. 155409 June 8, 2007
Justice Austri-Martinez

FACTS:
Herein petitioner and herein private respondent are spouses who once had a blissful married
life and out of which were blessed to have a son. However, their once sugar coated romance turned
bitter when petitioner discovered that private respondent was having illicit sexual affair with her
paramour, which thus, prompted the petitioner to file a case of adultery against private respondent and
the latter's paramour. Consequently, both accused were convicted of the crime charged.

Thereafter, private respondent, through counsel, filed a Petition for Declaration of Nullity of
Marriage, Dissolution and Liquidation of Conjugal Partnership of Gains and Damages imputing
psychological incapacity on the part of the petitioner. During the pre-trial of the said case, petitioner
and private respondent entered into a COMPROMISE AGREEMENT.

Subsequently, petitioner filed a motion for the repudiation of the AGREEMENT. This motion
was denied. Petitioner then filed a Petition for Certiorari and Prohibition with the Court of Appeals on
the ground that the conviction of the respondent of the crime of adultery disqualify her from sharing
in the conjugal property. The Petition was dismissed.

ISSUE:
Is the conviction of the respondent of the crime of adultery a disqualification for her to share
in the conjugal property?
HELD:
No. The conviction of adultery does not carry the accessory of civil interdiction. Article 34 of
the Revised Penal Code provides for the consequences of civil interdiction:

Art. 34. Civil Interdiction. Civil interdiction shall deprive the offender during the time
of his sentence of the rights of parental authority, or guardianship, either as to the person or
property of any ward, of marital authority, of the right to manage his property and of the right
to dispose of such property by any act or any conveyance inter vivos.

Under Article 333 of the same Code, the penalty for adultery is prision correccional in its
medium and maximum periods. Article 333 should be read with Article 43 of the same Code. The latter
provides:

28
 Goitia vs. Campos-Rueda

35 Phil 252

FACTS:

Luisa Goitia y de la Camara, petitioner, and Jose Campos y Rueda, respondent, were
married on January 7, 1915 and had a residence at 115 Calle San Marcelino Manila.
They stayed together for a month before petitioner returned to her parents home. Goitia
filed a complaint against respondent for support outside the conjugal home. It was alleged
that respondent demanded her to perform unchaste and lascivious acts on his genital
organs. Petitioner refused to perform such acts and demanded her husband other than
the legal and valid cohabitation. Since Goitia kept on refusing, respondent maltreated
her by word and deed, inflicting injuries upon her lops, face and different body parts. The
trial court ruled in favor of respondent and stated that Goitia could not compel her husband
to support her except in the conjugal home unless it is by virtue of a judicial decree
granting her separation or divorce from respondent. Goitia filed motion for review.

ISSUE: Whether or not Goitia can compel her husband to support her outside the conjugal
home.

HELD:

The obligation on the part of the husband to support his wife is created merely in the act
of marriage. The law provides that the husband, who is obliged to support the wife, may
fulfill the obligation either by paying her a fixed pension or by maintaining her in his own
home at his option. However, this option given by law is not absolute. The law will not
permit the husband to evade or terminate his obligation to support his wife if the wife is
driven away from the conjugal home because of his wrongful acts. In the case at bar, the
wife was forced to leave the conjugal abode because of the lewd designs and physical
assault of the husband, she can therefore claim support from the husband for separate
maintenance even outside the conjugal home.

29
 FIRST DIVISION

[G.R. No. 139789. May 12, 2000]

ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA I. BILDNER and SYLVIA

K. ILUSORIO, JOHN DOE and JANE DOE, respondents. Mesm

[G.R. No. 139808. May 12, 2000]

POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and SYLVIA

ILUSORIO, petitioners, vs. COURT OF APPEALS and ERLINDA K.
ILUSORIO, respondents.

DECISION

PARDO, J.:

May a wife secure a writ of habeas corpus to compel her husband to live with
her in conjugal bliss? The answer is no. Marital rights including coverture and
living in conjugal dwelling may not be enforced by the extra-ordinary writ
of habeas corpus.

A writ of habeas corpus extends to all cases of illegal confinement or

detention, or by which the rightful custody of a person is withheld from the one
[1]

entitled thereto. Slx

[2]

"Habeas corpus is a writ directed to the person detaining another, commanding

him to produce the body of the prisoner at a designated time and place, with
the day and cause of his capture and detention, to do, submit to, and receive
whatsoever the court or judge awarding the writ shall consider in that behalf."[3]

It is a high prerogative, common-law writ, of ancient origin, the great object of

which is the liberation of those who may be imprisoned without sufficient
cause. It is issued when one is deprived of liberty or is wrongfully prevented
[4]

from exercising legal custody over another person. [5]

The petition of Erlinda K. Ilusorio is to reverse the decision of the Court of

[6] [7]

Appeals and its resolution dismissing the application for habeas corpus to
[8]

have the custody of her husband, lawyer Potenciano Ilusorio and enforce
consortium as the wife.

30
On the other hand, the petition of Potenciano Ilusorio is to annul that portion of
[9]

the decision of the Court of Appeals giving Erlinda K. Ilusorio visitation rights to
her husband and to enjoin Erlinda and the Court of Appeals from enforcing the
visitation rights.

The undisputed facts are as follows: Scslx

Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio.

Potenciano Ilusorio is about 86 years of age possessed of extensive property

valued at millions of pesos. For many years, lawyer Potenciano Ilusorio was
Chairman of the Board and President of Baguio Country Club.

On July 11, 1942, Erlinda Kalaw and Potenciano Ilusorio contracted matrimony
and lived together for a period of thirty (30) years. In 1972, they separated from
bed and board for undisclosed reasons. Potenciano lived at Urdaneta
Condominium, Ayala Ave., Makati City when he was in Manila and at Ilusorio
Penthouse, Baguio Country Club when he was in Baguio City. On the other
hand, Erlinda lived in Antipolo City.

Out of their marriage, the spouses had six (6) children, namely: Ramon Ilusorio
(age 55); Erlinda Ilusorio Bildner (age 52); Maximo (age 50); Sylvia (age 49);
Marietta (age 48); and Shereen (age 39).

On December 30, 1997, upon Potencianos arrival from the United States, he
stayed with Erlinda for about five (5) months in Antipolo City. The children,
Sylvia and Erlinda (Lin), alleged that during this time, their mother gave
Potenciano an overdose of 200 mg instead of 100 mg Zoloft, an antidepressant
drug prescribed by his doctor in New York, U.S.A. As a consequence,
Potencianos health deteriorated.

On February 25, 1998, Erlinda filed with the Regional Trial Court, Antipolo City
a petition for guardianship over the person and property of Potenciano Ilusorio
[10]

due to the latters advanced age, frail health, poor eyesight and impaired
judgment.

On May 31, 1998, after attending a corporate meeting in Baguio City,

Potenciano Ilusorio did not return to Antipolo City and instead lived at Cleveland
Condominium, Makati. Slxsc

On March 11, 1999, Erlinda filed with the Court of Appeals a petition for habeas
corpus to have the custody of lawyer Potenciano Ilusorio. She alleged that

31
respondents refused petitioners demands to see and visit her husband and
[11]

prohibited Potenciano from returning to Antipolo City.

After due hearing, on April 5, 1999, the Court of Appeals rendered decision the
dispositive portion of which reads:

"WHEREFORE, in the light of the foregoing disquisitions, judgment

is hereby rendered:

"(1) Ordering, for humanitarian consideration and upon petitioners

manifestation, respondents Erlinda K. Ilusorio Bildner and Sylvia
Ilusorio-Yap, the administrator of Cleveland Condominium or
anywhere in its place, his guards and Potenciano Ilusorios staff
especially Ms. Aurora Montemayor to allow visitation rights to
Potenciano Ilusorios wife, Erlinda Ilusorio and all her children,
notwithstanding any list limiting visitors thereof, under penalty of
contempt in case of violation of refusal thereof; xxx

"(2) ORDERING that the writ of habeas corpus previously issued

be recalled and the herein petition for habeas corpus be DENIED
DUE COURSE, as it is hereby DISMISSED for lack of unlawful
restraint or detention of the subject of the petition.

"SO ORDERED." [12]

Hence, the two petitions, which were consolidated and are herein jointly
decided.

As heretofore stated, a writ of habeas corpus extends to all cases of illegal

confinement or detention, or by which the rightful custody of a person is
[13]

withheld from the one entitled thereto. It is available where a person continues
to be unlawfully denied of one or more of his constitutional freedoms, where
there is denial of due process, where the restraints are not merely involuntary
but are unnecessary, and where a deprivation of freedom originally valid has
later become arbitrary. It is devised as a speedy and effectual remedy to
[14]

relieve persons from unlawful restraint, as the best and only sufficient defense
of personal freedom. Jksm [15]

The essential object and purpose of the writ of habeas corpus is to inquire into
all manner of involuntary restraint, and to relieve a person therefrom if such
restraint is illegal.
[16]

32
To justify the grant of the petition, the restraint of liberty must be an illegal and
involuntary deprivation of freedom of action. The illegal restraint of liberty must
[17]

be actual and effective, not merely nominal or moral. [18]

The evidence shows that there was no actual and effective detention or
deprivation of lawyer Potenciano Ilusorios liberty that would justify the issuance
of the writ. The fact that lawyer Potenciano Ilusorio is about 86 years of age, or
under medication does not necessarily render him mentally incapacitated.
Soundness of mind does not hinge on age or medical condition but on the
capacity of the individual to discern his actions.

After due hearing, the Court of Appeals concluded that there was no unlawful
restraint on his liberty.

The Court of Appeals also observed that lawyer Potenciano Ilusorio did not
request the administrator of the Cleveland Condominium not to allow his wife
and other children from seeing or visiting him. He made it clear that he did not
object to seeing them.

As to lawyer Potenciano Ilusorios mental state, the Court of Appeals observed

that he was of sound and alert mind, having answered all the relevant questions
to the satisfaction of the court.

Being of sound mind, he is thus possessed with the capacity to make choices.
In this case, the crucial choices revolve on his residence and the people he opts
to see or live with. The choices he made may not appeal to some of his family
members but these are choices which exclusively belong to Potenciano. He
made it clear before the Court of Appeals that he was not prevented from
leaving his house or seeing people. With that declaration, and absent any true
restraint on his liberty, we have no reason to reverse the findings of the Court
of Appeals.

With his full mental capacity coupled with the right of choice, Potenciano Ilusorio
may not be the subject of visitation rights against his free choice. Otherwise, we
will deprive him of his right to privacy. Needless to say, this will run against his
fundamental constitutional right. Es m

The Court of Appeals exceeded its authority when it awarded visitation rights in
a petition for habeas corpus where Erlinda never even prayed for such right.
The ruling is not consistent with the finding of subjects sanity.

33
When the court ordered the grant of visitation rights, it also emphasized that the
same shall be enforced under penalty of contempt in case of violation or refusal
to comply. Such assertion of raw, naked power is unnecessary.

The Court of Appeals missed the fact that the case did not involve the right of
a parent to visit a minor child but the right of a wife to visit a husband. In case
the husband refuses to see his wife for private reasons, he is at liberty to do so
without threat of any penalty attached to the exercise of his right.

No court is empowered as a judicial authority to compel a husband to live with

his wife. Coverture cannot be enforced by compulsion of a writ of habeas
corpus carried out by sheriffs or by any other mesne process. That is a matter
beyond judicial authority and is best left to the man and womans free choice.

WHEREFORE, in G. R. No. 139789, the Court DISMISSES the petition for lack
of merit. No costs.

In G. R. No. 139808, the Court GRANTS the petition and nullifies the decision
of the Court of Appeals insofar as it gives visitation rights to respondent Erlinda
K. Ilusorio. No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago,

JJ., concur. 5/31/00 10:02 AM

34
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-19671 November 29, 1965

PASTOR B. TENCHAVEZ, plaintiff-appellant,

vs.
VICENTA F. ESCAO, ET AL., defendants-appellees.

I. V. Binamira & F. B. Barria for plaintiff-appellant.

Jalandoni & Jarnir for defendants-appellees.

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

Direct appeal, on factual and legal questions, from the judgment of the Court of First Instance of Cebu,
in its Civil Case No. R-4177, denying the claim of the plaintiff-appellant, Pastor B. Tenchavez, for legal
separation and one million pesos in damages against his wife and parents-in-law, the defendants-
appellees, Vicente, Mamerto and Mena,1 all surnamed "Escao," respectively.2

The facts, supported by the evidence of record, are the following:

Missing her late afternoon classes on 24 February 1948 in the University of San Carlos, Cebu City,
where she was then enrolled as a second year student of commerce, Vicenta Escao, 27 years of age
(scion of a well-to-do and socially prominent Filipino family of Spanish ancestry and a "sheltered
colegiala"), exchanged marriage vows with Pastor Tenchavez, 32 years of age, an engineer, ex-army
officer and of undistinguished stock, without the knowledge of her parents, before a Catholic chaplain,
Lt. Moises Lavares, in the house of one Juan Alburo in the said city. The marriage was the culmination
of a previous love affair and was duly registered with the local civil register.

Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the couple were deeply in
love. Together with a friend, Pacita Noel, their matchmaker and go-between, they had planned out
their marital future whereby Pacita would be the governess of their first-born; they started saving
money in a piggy bank. A few weeks before their secret marriage, their engagement was broken;
Vicenta returned the engagement ring and accepted another suitor, Joseling Lao. Her love for Pastor
beckoned; she pleaded for his return, and they reconciled. This time they planned to get married and
then elope. To facilitate the elopement, Vicenta had brought some of her clothes to the room of Pacita
Noel in St. Mary's Hall, which was their usual trysting place.

Although planned for the midnight following their marriage, the elopement did not, however, materialize
because when Vicente went back to her classes after the marriage, her mother, who got wind of the
intended nuptials, was already waiting for her at the college. Vicenta was taken home where she
admitted that she had already married Pastor. Mamerto and Mena Escao were surprised, because
Pastor never asked for the hand of Vicente, and were disgusted because of the great scandal that the
clandestine marriage would provoke (t.s.n., vol. III, pp. 1105-06). The following morning, the Escao
spouses sought priestly advice. Father Reynes suggested a recelebration to validate what he believed
to be an invalid marriage, from the standpoint of the Church, due to the lack of authority from the
Archbishop or the parish priest for the officiating chaplain to celebrate the marriage. The recelebration
did not take place, because on 26 February 1948 Mamerto Escao was handed by a maid, whose
name he claims he does not remember, a letter purportedly coming from San Carlos college students

35
and disclosing an amorous relationship between Pastor Tenchavez and Pacita Noel; Vicenta
translated the letter to her father, and thereafter would not agree to a new marriage. Vicenta and
Pastor met that day in the house of Mrs. Pilar Mendezona. Thereafter, Vicenta continued living with
her parents while Pastor returned to his job in Manila. Her letter of 22 March 1948 (Exh. "M"), while
still solicitous of her husband's welfare, was not as endearing as her previous letters when their love
was aflame.

Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor knew it. She fondly
accepted her being called a "jellyfish." She was not prevented by her parents from communicating
with Pastor (Exh. "1-Escao"), but her letters became less frequent as the days passed. As of June,
1948 the newlyweds were already estranged (Exh. "2-Escao"). Vicenta had gone to Jimenez,
Misamis Occidental, to escape from the scandal that her marriage stirred in Cebu society. There, a
lawyer filed for her a petition, drafted by then Senator Emmanuel Pelaez, to annul her marriage. She
did not sign the petition (Exh. "B-5"). The case was dismissed without prejudice because of her non-
appearance at the hearing (Exh. "B-4").

On 24 June 1950, without informing her husband, she applied for a passport, indicating in her
application that she was single, that her purpose was to study, and she was domiciled in Cebu City,
and that she intended to return after two years. The application was approved, and she left for the
United States. On 22 August 1950, she filed a verified complaint for divorce against the herein plaintiff
in the Second Judicial District Court of the State of Nevada in and for the County of Washoe, on the
ground of "extreme cruelty, entirely mental in character." On 21 October 1950, a decree of divorce,
"final and absolute", was issued in open court by the said tribunal.

In 1951 Mamerto and Mena Escao filed a petition with the Archbishop of Cebu to annul their
daughter's marriage to Pastor (Exh. "D"). On 10 September 1954, Vicenta sought papal dispensation
of her marriage (Exh. "D"-2).

On 13 September 1954, Vicenta married an American, Russell Leo Moran, in Nevada. She now lives
with him in California, and, by him, has begotten children. She acquired American citizenship on 8
August 1958.

But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint in the Court of
First Instance of Cebu, and amended on 31 May 1956, against Vicenta F. Escao, her parents,
Mamerto and Mena Escao, whom he charged with having dissuaded and discouraged Vicenta from
joining her husband, and alienating her affections, and against the Roman Catholic Church, for having,
through its Diocesan Tribunal, decreed the annulment of the marriage, and asked for legal separation
and one million pesos in damages. Vicenta claimed a valid divorce from plaintiff and an equally valid
marriage to her present husband, Russell Leo Moran; while her parents denied that they had in any
way influenced their daughter's acts, and counterclaimed for moral damages.

The appealed judgment did not decree a legal separation, but freed the plaintiff from supporting his
wife and to acquire property to the exclusion of his wife. It allowed the counterclaim of Mamerto Escao
and Mena Escao for moral and exemplary damages and attorney's fees against the plaintiff-
appellant, to the extent of P45,000.00, and plaintiff resorted directly to this Court.

The appellant ascribes, as errors of the trial court, the following:

1. In not declaring legal separation; in not holding defendant Vicenta F. Escao liable for
damages and in dismissing the complaint;.

36
 2. In not holding the defendant parents Mamerto Escano and the heirs of Doa Mena Escao
liable for damages;.

3 In holding the plaintiff liable for and requiring him to pay the damages to the defendant
parents on their counterclaims; and.

4. In dismissing the complaint and in denying the relief sought by the plaintiff.

That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the defendant-appellee,
Vicenta Escao, were validly married to each other, from the standpoint of our civil law, is clearly
established by the record before us. Both parties were then above the age of majority, and otherwise
qualified; and both consented to the marriage, which was performed by a Catholic priest (army
chaplain Lavares) in the presence of competent witnesses. It is nowhere shown that said priest was
not duly authorized under civil law to solemnize marriages.

The chaplain's alleged lack of ecclesiastical authorization from the parish priest and the Ordinary, as
required by Canon law, is irrelevant in our civil law, not only because of the separation of Church and
State but also because Act 3613 of the Philippine Legislature (which was the marriage law in force at
the time) expressly provided that

SEC. 1. Essential requisites. Essential requisites for marriage are the legal capacity of the
contracting parties and consent. (Emphasis supplied)

The actual authority of the solemnizing officer was thus only a formal requirement, and, therefore, not
essential to give the marriage civil effects,3 and this is emphasized by section 27 of said marriage act,
which provided the following:

SEC. 27. Failure to comply with formal requirements. No marriage shall be declared invalid
because of the absence of one or several of the formal requirements of this Act if, when it was
performed, the spouses or one of them believed in good faith that the person who solemnized
the marriage was actually empowered to do so, and that the marriage was perfectly legal.

The good faith of all the parties to the marriage (and hence the validity of their marriage) will be
presumed until the contrary is positively proved (Lao vs. Dee Tim, 45 Phil. 739, 745; Francisco vs.
Jason, 60 Phil. 442, 448). It is well to note here that in the case at bar, doubts as to the authority of
the solemnizing priest arose only after the marriage, when Vicenta's parents consulted Father Reynes
and the archbishop of Cebu. Moreover, the very act of Vicenta in abandoning her original action for
annulment and subsequently suing for divorce implies an admission that her marriage to plaintiff was
valid and binding.

Defendant Vicenta Escao argues that when she contracted the marriage she was under the undue
influence of Pacita Noel, whom she charges to have been in conspiracy with appellant Tenchavez.
Even granting, for argument's sake, the truth of that contention, and assuming that Vicenta's consent
was vitiated by fraud and undue influence, such vices did not render her marriage ab initio void, but
merely voidable, and the marriage remained valid until annulled by a competent civil court. This was
never done, and admittedly, Vicenta's suit for annulment in the Court of First Instance of Misamis was
dismissed for non-prosecution.

It is equally clear from the record that the valid marriage between Pastor Tenchavez and Vicenta
Escao remained subsisting and undissolved under Philippine law, notwithstanding the decree of
absolute divorce that the wife sought and obtained on 21 October 1950 from the Second Judicial
District Court of Washoe County, State of Nevada, on grounds of "extreme cruelty, entirely mental in

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character." At the time the divorce decree was issued, Vicenta Escao, like her husband, was still a
Filipino citizen.4 She was then subject to Philippine law, and Article 15 of the Civil Code of the
Philippines (Rep. Act No. 386), already in force at the time, expressly provided:

Laws relating to family rights and duties or to the status, condition and legal capacity of persons
are binding upon the citizens of the Philippines, even though living abroad.

The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo
matrimonii; and in fact does not even use that term, to further emphasize its restrictive policy on the
matter, in contrast to the preceding legislation that admitted absolute divorce on grounds of adultery
of the wife or concubinage of the husband (Act 2710). Instead of divorce, the present Civil Code only
provides for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in that case, it expressly
prescribes that "the marriage bonds shall not be severed" (Art. 106, subpar. 1).

For the Philippine courts to recognize and give recognition or effect to a foreign decree of absolute
divorce betiveen Filipino citizens could be a patent violation of the declared public policy of the state,
specially in view of the third paragraph of Article 17 of the Civil Code that prescribes the following:

Prohibitive laws concerning persons, their acts or property, and those which have for their
object public order, policy and good customs, shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a foreign country.

Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in effect,
give rise to an irritating and scandalous discrimination in favor of wealthy citizens, to the detriment of
those members of our polity whose means do not permit them to sojourn abroad and obtain absolute
divorces outside the Philippines.

From this point of view, it is irrelevant that appellant Pastor Tenchavez should have appeared in the
Nevada divorce court. Primarily because the policy of our law cannot be nullified by acts of private
parties (Civil Code,Art. 17, jam quot.); and additionally, because the mere appearance of a non-
resident consort cannot confer jurisdiction where the court originally had none (Area vs. Javier, 95
Phil. 579).

From the preceding facts and considerations, there flows as a necessary consequence that in this
jurisdiction Vicenta Escao's divorce and second marriage are not entitled to recognition as valid; for
her previous union to plaintiff Tenchavez must be declared to be existent and undissolved. It follows,
likewise, that her refusal to perform her wifely duties, and her denial of consortium and her desertion
of her husband constitute in law a wrong caused through her fault, for which the husband is entitled to
the corresponding indemnity (Civil Code, Art. 2176). Neither an unsubstantiated charge of deceit nor
an anonymous letter charging immorality against the husband constitute, contrary to her claim,
adequate excuse. Wherefore, her marriage and cohabitation with Russell Leo Moran is technically
"intercourse with a person not her husband" from the standpoint of Philippine Law, and entitles plaintiff-
appellant Tenchavez to a decree of "legal separation under our law, on the basis of adultery" (Revised
Penal Code, Art. 333).

The foregoing conclusions as to the untoward effect of a marriage after an invalid divorce are in accord
with the previous doctrines and rulings of this court on the subject, particularly those that were
rendered under our laws prior to the approval of the absolute divorce act (Act 2710 of the Philippine
Legislature). As a matter of legal history, our statutes did not recognize divorces a vinculo before 1917,
when Act 2710 became effective; and the present Civil Code of the Philippines, in disregarding
absolute divorces, in effect merely reverted to the policies on the subject prevailing before Act 2710.
The rulings, therefore, under the Civil Code of 1889, prior to the Act above-mentioned, are now, fully

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applicable. Of these, the decision in Ramirez vs. Gmur, 42 Phil. 855, is of particular interest. Said this
Court in that case:

As the divorce granted by the French Court must be ignored, it results that the marriage of Dr.
Mory and Leona Castro, celebrated in London in 1905, could not legalize their relations; and
the circumstance that they afterwards passed for husband and wife in Switzerland until her
death is wholly without legal significance. The claims of the very children to participate in the
estate of Samuel Bishop must therefore be rejected. The right to inherit is limited to legitimate,
legitimated and acknowledged natural children. The children of adulterous relations are wholly
excluded. The word "descendants" as used in Article 941 of the Civil Code cannot be
interpreted to include illegitimates born of adulterous relations. (Emphasis supplied)

Except for the fact that the successional rights of the children, begotten from Vicenta's marriage to
Leo Moran after the invalid divorce, are not involved in the case at bar, the Gmur case is authority for
the proposition that such union is adulterous in this jurisdiction, and, therefore, justifies an action for
legal separation on the part of the innocent consort of the first marriage, that stands undissolved in
Philippine law. In not so declaring, the trial court committed error.

True it is that our ruling gives rise to anomalous situations where the status of a person (whether
divorced or not) would depend on the territory where the question arises. Anomalies of this kind are
not new in the Philippines, and the answer to them was given in Barretto vs. Gonzales, 58 Phil. 667:

The hardship of the existing divorce laws in the Philippine Islands are well known to the
members of the Legislature. It is the duty of the Courts to enforce the laws of divorce as written
by Legislature if they are constitutional. Courts have no right to say that such laws are too strict
or too liberal. (p. 72)

The appellant's first assignment of error is, therefore, sustained.

However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escao and his wife, the
late Doa Mena Escao, alienated the affections of their daughter and influenced her conduct toward
her husband are not supported by credible evidence. The testimony of Pastor Tenchavez about the
Escao's animosity toward him strikes us to be merely conjecture and exaggeration, and are belied
by Pastor's own letters written before this suit was begun (Exh. "2-Escao" and "Vicenta," Rec. on
App., pp. 270-274). In these letters he expressly apologized to the defendants for "misjudging them"
and for the "great unhappiness" caused by his "impulsive blunders" and "sinful pride," "effrontery and
audacity" [sic]. Plaintiff was admitted to the Escao house to visit and court Vicenta, and the record
shows nothing to prove that he would not have been accepted to marry Vicente had he openly asked
for her hand, as good manners and breeding demanded. Even after learning of the clandestine
marriage, and despite their shock at such unexpected event, the parents of Vicenta proposed and
arranged that the marriage be recelebrated in strict conformity with the canons of their religion upon
advice that the previous one was canonically defective. If no recelebration of the marriage ceremony
was had it was not due to defendants Mamerto Escao and his wife, but to the refusal of Vicenta to
proceed with it. That the spouses Escao did not seek to compel or induce their daughter to assent to
the recelebration but respected her decision, or that they abided by her resolve, does not constitute in
law an alienation of affections. Neither does the fact that Vicenta's parents sent her money while she
was in the United States; for it was natural that they should not wish their daughter to live in penury
even if they did not concur in her decision to divorce Tenchavez (27 Am. Jur. 130-132).

There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her
original suit for annulment, or her subsequent divorce; she appears to have acted independently, and
being of age, she was entitled to judge what was best for her and ask that her decisions be respected.

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Her parents, in so doing, certainly cannot be charged with alienation of affections in the absence of
malice or unworthy motives, which have not been shown, good faith being always presumed until the
contrary is proved.

SEC. 529. Liability of Parents, Guardians or Kin. The law distinguishes between the right of
a parent to interest himself in the marital affairs of his child and the absence of rights in a
stranger to intermeddle in such affairs. However, such distinction between the liability of
parents and that of strangers is only in regard to what will justify interference. A parent isliable
for alienation of affections resulting from his own malicious conduct, as where he wrongfully
entices his son or daughter to leave his or her spouse, but he is not liable unless he acts
maliciously, without justification and from unworthy motives. He is not liable where he acts and
advises his child in good faith with respect to his child's marital relations in the interest of his
child as he sees it, the marriage of his child not terminating his right and liberty to interest
himself in, and be extremely solicitous for, his child's welfare and happiness, even where his
conduct and advice suggest or result in the separation of the spouses or the obtaining of a
divorce or annulment, or where he acts under mistake or misinformation, or where his advice
or interference are indiscreet or unfortunate, although it has been held that the parent is liable
for consequences resulting from recklessness. He may in good faith take his child into his
home and afford him or her protection and support, so long as he has not maliciously enticed
his child away, or does not maliciously entice or cause him or her to stay away, from his or her
spouse. This rule has more frequently been applied in the case of advice given to a married
daughter, but it is equally applicable in the case of advice given to a son.

Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social discrimination and
with having exerted efforts and pressured her to seek annulment and divorce, unquestionably caused
them unrest and anxiety, entitling them to recover damages. While this suit may not have been
impelled by actual malice, the charges were certainly reckless in the face of the proven facts and
circumstances. Court actions are not established for parties to give vent to their prejudices or spleen.

In the assessment of the moral damages recoverable by appellant Pastor Tenchavez from defendant
Vicente Escao, it is proper to take into account, against his patently unreasonable claim for a million
pesos in damages, that (a) the marriage was celebrated in secret, and its failure was not characterized
by publicity or undue humiliation on appellant's part; (b) that the parties never lived together; and (c)
that there is evidence that appellant had originally agreed to the annulment of the marriage, although
such a promise was legally invalid, being against public policy (cf. Art. 88, Civ. Code). While appellant
is unable to remarry under our law, this fact is a consequence of the indissoluble character of the union
that appellant entered into voluntarily and with open eyes rather than of her divorce and her second
marriage. All told, we are of the opinion that appellant should recover P25,000 only by way of moral
damages and attorney's fees.

With regard to the P45,000 damages awarded to the defendants, Dr. Mamerto Escao and Mena
Escao, by the court below, we opine that the same are excessive. While the filing of this unfounded
suit must have wounded said defendants' feelings and caused them anxiety, the same could in no way
have seriously injured their reputation, or otherwise prejudiced them, lawsuits having become a
common occurrence in present society. What is important, and has been correctly established in the
decision of the court below, is that said defendants were not guilty of any improper conduct in the
whole deplorable affair. This Court, therefore, reduces the damages awarded to P5,000 only.

Summing up, the Court rules:

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

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is the marriage contracted with another party by the divorced consort, subsequently to the foreign
decree of divorce, entitled to validity in the country;

(2) That the remarriage of divorced wife and her co-habitation with a person other than the lawful
husband entitle the latter to a decree of legal separation conformably to Philippine law;

(3) That the desertion and securing of an invalid divorce decree by one consort entitles the other to
recover damages;

(4) That an action for alienation of affections against the parents of one consort does not lie in the
absence of proof of malice or unworthy motives on their part.

WHEREFORE, the decision under appeal is hereby modified as follows;

(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal separation from
defendant Vicenta F. Escao;

(2) Sentencing defendant-appellee Vicenta Escao to pay plaintiff-appellant Tenchavez the amount
of P25,000 for damages and attorneys' fees;

(3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escao and the estate of
his wife, the deceased Mena Escao, P5,000 by way of damages and attorneys' fees.

Neither party to recover costs.

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