a. grounds 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.

arising from the offense. as contemplated in the first Section 1 hereof, the following rules shall be observed: (a) After a criminal action has been commenced the pending civil action arising from the same offense shall be suspended, in whatever stage it may be found, until final judgment in the criminal proceeding has been rendered. . . . The civil action for legal separation, grounded as it is on concubinage, it is petitioner's position that such civil action arises from, or is inextricably tied to the criminal action for concubinage, so that all proceedings related to legal separation will have to be suspended to await conviction or acquittal for concubinage in the criminal case. Authority for this position is this Court's decision in the case of Jerusalem vs. Hon. Roberto Zurbano. 1 Petitioner's contention is not correct. In Jerusalem, the Court's statement to the effect that suspension of an action for legal separation would be proper if an allegation of concubinage is made therein, relied solely on Sec. 1 of Rule 107 of the then provisions of the Rules of Court on criminal procedure, to wit: Sec. 1. Rules governing civil actions arising from offenses.-Except as otherwise provided by law, the following rules shall he observed: (a) When a criminal action is instituted, the civil action for recovery of civil liability arising from the offense charged is impliedly instituted with the criminal action, unless the offended party expressly waives the civil action or reserves his right to institute it separately; (b) Criminal and civil actions arising from the same offense may be instituted separately, but after the criminal action has been commenced the civil action can not be instituted until final judgment has been rendered in the criminal action; (c) After a criminal action has been commenced, no civil action arising from the same offense can be prosecuted and the same shall be suspended in whatever stage it may be found until final judgment in the criminal proceeding has been rendered ... (Emphasis supplied) The provisions last quoted did not clearly state, as the 1985 Rules do, that the civil action to be suspended, with or upon the filing of a criminal action, is one which

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

is "to enforce the civil liability arising from the offense". In other words, in view of the amendment under the 1985 Rules on Criminal Procedure, a civil action for legal separation, based on concubinage, may proceed ahead of, or simultaneously with, a criminal action for concubinage, because said civil action is not one "to enforce the civil liability arising from the offense" even if both the civil and criminal actions arise from or are related to the same offense. Such civil action is one intended to obtain the right to live separately, with the legal consequences thereof, such as, the dissolution of the conjugal partnership of gains, custody of offsprings, support, and disqualification from inheriting from the innocent spouse, among others. As correctly pointed out by the respondent Judge in his Order dated 5 August 1987: The unreported case of JERUSALEM vs. Hon. Roberto Zurbano, Judge of CFI of Antique, et al., L-11935, April 24, 1959 (105 Phil. 1277) is not controlling. It applied paragraph C of Sec. 1, of then Rule 107 of the Rules of Court, which reads: After a criminal action has been commenced, no civil action arising from the same offense can be prosecuted and the same shall be suspended, in whatever stage it may be found, until final judgment in the criminal proceeding has been rendered. (Emphasis supplied) The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal Procedure which refers to "civil actions to enforce the civil liability arising from the offense" as contemplated in the first paragraph of Section 1 of Rule 111-which is a civil action "for recovery of civil liability arising from the offense charged." Sec. 1, Rule 111, (1985) is specific that it refers to civil action for the recovery of civil liability arising from the offense charged. Whereas, the old Sec. 1 (c), Rule 107 simply referred to "Civil action arising from the offense." As earlier noted this action for legal separation is not to recover civil liability, in the main, but is aimed at the conjugal rights of the spouses and their relations to each other, within the contemplation of Articles 7 to 108, of the Civil Code." 2 Petitioner also argues that his conviction for concubinage will have to be first secured before the action for legal separation can prosper or succeed, as the basis of the action for legal separation is his alleged offense of concubinage. Petitioner's assumption is erroneous.

A decree of legal separation, on the ground of concubinage, may be issued upon proof by preponderance of evidence in the action for legal separation. 3 No criminal proceeding or conviction is necessary. To this end, the doctrine 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 supportpendente 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 support pendente lite and the denial of the motion to suspend hearings in the case, are taken by the petitioner as a disregard of applicable laws and existing doctrines, thereby showing the respondent Judge's alleged manifest partiality to private respondent. Petitioner's contention is without merit. Divergence of opinions between a judge hearing a case and a party's counsel, as to applicable laws and jurisprudence, is not a sufficient ground to disqualify the judge from hearing the case, on the ground of bias and manifest partiality. This is more so, in this case, where we find the judge's disposition of petitioner's motions to be sound and well-taken. WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner. SO ORDERED. Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.

Footnotes 1 G.R. No. L- 11935, 24 April 1959, 105 Phil. 1277 (1959),Unrep. 2 Rollo at 33. 3 Petitioner himself admits this in his Rejoinder to plaintiff's Opposition to his

Motion to Inhibit Respondent Judge and Motion to Suspend Hearing wherein he states, "Concubinage is the same criminal offense punishable under Art. 334 of the Revised Penal Code which in a case for legal separation, the same may be proved based on preponderance of evidence". Rollo at 50. 4 50 Phil. 42 (1927) 5 Padilla, I CIVIL CODE ANNOTATED 526 (1975); Paras, I CIVIL CODE OF THE PHILIPPINES ANNOTATED 374 (1971); Tolentino, I COMMENTARIES AND JURISPRUDENCE ON THE CIVIL CODE OF THE PHILIPPINES 311 (1983). Tolentino qualifies: " It is not mere sexual infidelity that constitutes the ground for legal separation. Such infidelity must constitute adultery or concubinage as defined by the Revised Penal Code." (Id. at 310). Further: "There would be no more legal obstacle to a decree of legal separation at the instance of an offended wife, based on an act of infidelity for which the guilty husband has been convicted of adultery upon the complaint of his paramour's husband so long as such act may also constitute concubinage and can be proven in the legal separation proceedings. We submit that the new Code, by omitting the requirement of criminal conviction of adultery or concubinage, as the case may be, has modified the doctrine in the case of Francisco v. Tayao."(Id. at 311). It may be noted that under Article 55(6) of the Family Code of the Philippines (Executive Order No. 209 as ammended) soon to take effect, sexual infidelity or perversion of either spouse has replaced adultery on the part of the wife and concubinage on the part of the husband as defined by the Revised Penal Code (Art. 97, New Civil Code) as one of the grounds for legal separation. 6 Araneta v. Concepcion, et al., 99 Phil. 709 (1956). 7 Sec. 5, Rule 61 of the Rules of Court states: Order.- The court shall determine provisionally the pertinent facts, and shall render such order as equity and justice may require, having due regard to the necessities of the applicant, the means of the adverse party, the probable outcome of the case, and

such other circumstances as may aid in the proper elucidation of the question involved. If the application is granted, the court shall fix the amount of money to be provissionally paid, and the terms of payment. If the application is denied, the trial of the principal case on its merit shall be held as early as possible.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-19565 January 30, 1968

ESTRELLA DE LA CRUZ, plaintiff-appellee, vs. SEVERINO DE LA CRUZ, defendant-appellant. Estacion and Paltriguera for plaintiff-appellee. Manuel O. Soriano and Pio G. Villoso for defendantappellant. CASTRO, J.: The plaintiff Estrella de la Cruz filed a complaint on July 22, 1958 with the Court of First Instance of Negros Occidental, alleging in essence that her husband, the defendant Severino de la Cruz, had not only abandoned her but as well was mismanaging their conjugal partnership properties, and praying for (1) separation of property, (2) monthly support of P2,500 during the pendency of the action, and (3) payment of P20,000 as attorney's fees, and costs. The court a quo forthwith issued an order allowing the plaintiff the amount prayed for as alimony pendente lite, which however, upon defendant's motion, was reduced to P2,000. On June 1, 1961 the trial court rendered judgment ordering separation and division of the conjugal assets, and directing the defendant to pay to the plaintiff the sum of P20,000 as attorney's fees, with legal interest from the date of the original complaint, that is, from July 22, 1958, until fully paid, plus costs. From this judgment the defendant appealed to the Court of Appeals, which certified the case to us, "it appearing that the total value of the conjugal assets is over P500,000". The basic facts are not controverted. The plaintiff and the defendant were married in Bacolod City on February 1, 1938. Six children were born to them, namely, Zenia (1939), Ronnie (1942), Victoria (1944), Jessie 1945), Bella (1946), and Felipe (1948). During their coverture they acquired seven parcels of land of the Bacolod Cadastre, all assessed at P45,429,

and three parcels of the Silay Cadastre, all assessed at P43,580. All these parcels are registered in their names. The hacienda in Silay yielded for the year 1957 a net profit of P3,390.49. They are also engaged in varied business ventures with fixed assets valued as of December 31, 1956 at P496,006.92, from which they obtained for that year a net profit of P75,655.78. The net gain of the Philippine Texboard Factory, the principal business of the spouses, was P90,454.48 for the year 1957. As of December 31, 1959, the total assets of the various enterprises of the conjugal partnership were valued at P1,021,407.68, not including those of the Top Service Inc., of which firm the defendant has been the president since its organization in 1959 in Manila with a paid-up capital of P50,000, P10,000 of which was contributed by him. This corporation was the Beverly Hills Subdivision in Antipolo, Rizal, the Golden Acres Subdivision and the Green Valley Subdivision in Las Pias, Rizal, and a lot and building located at M. H. del Pilar, Manila purchased for P285,000, an amount borrowed from the Manufacturer's Bank and Trust Company. The spouses are indebted to the Philippine National Bank and the Development Bank of the Philippines for loans obtained, to secure which they mortgaged the Philippine Texboard Factory, the Silay hacienda, their conjugal house, and all their parcels of land located in Bacolod City. The essential issues of fact may be gleaned from the nine errors the defendant imputes to the court a quo, namely, 1. In finding that the only visit, from May 15, 1955 to the rendition of the decision, made by the defendant to the conjugal abode to see his wife was on June 15, 1955; 2. In finding that the letter exh. 3 was written by one Nenita Hernandez and that she and the defendant are living as husband and wife; 3. In finding that since 1951 the relations between the plaintiff and the defendant were far from cordial, and that it was from 1948 that the former has been receiving an allowance from the latter; 4. In finding that the defendant has abandoned the plaintiff; 5. In finding that the defendant since 1956 has not discussed with his wife the business activities of the partnership, and that this silence constituted "abuse of administration of the conjugal partnerships"; 6. In declaring that the defendant mortgaged the conjugal assets without the knowledge of the plaintiff and thru false pretences to which the latter was prey;

7. In allowing the plaintiff, on the one hand, to testify on facts not actually known by her, and, on the other hand, in not allowing the defendant to establish his special defenses; 8. In ordering separation of the conjugal partnership properties; and 9. In sentencing the defendant to pay to the plaintiff attorney's fees in the amount of P20,000, with interest at the legal rate.1wph1.t Two issues of law as well emerge, requiring resolution petition: (1) Did the separation of the defendant from the plaintiff constitute abandonment in law that would justify a separation of the conjugal partnership properties? (2) Was the defendant's failure and/or refusal to inform the plaintiff of the state of their business enterprises such an abuse of his powers of administration of the conjugal partnership as to warrant a division of the matrimonial assets? The plaintiff's evidence may be summarized briefly. The defendant started living in Manila in 1955, although he occasionally returned to Bacolod City, sleeping in his office at the Philippine Texboard Factory in Mandalagan, instead of in the conjugal home at 2nd Street, Bacolod City. Since 1955 the defendant had not slept in the conjugal dwelling, although in the said year he paid short visits during which they engaged in brief conversations. After 1955 up to the time of the trial, the defendant had never visited the conjugal abode, and when he was in Bacolod, she was denied communication with him. He has abandoned her and their children, to live in Manila with his concubine, Nenita Hernandez. In 1949 she began to suspect the existence of illicit relations between her husband and Nenita. This suspicion was confirmed in 1951 when she found an unsigned note in a pocket of one of her husband's polo shirt which was written by Nenita and in which she asked "Bering" to meet her near the church. She confronted her husband who forthwith tore the note even as he admitted his amorous liaison with Nenita. He then allayed her fears by vowing to forsake his mistress. Subsequently, in November 1951, she found in the iron safe of her husband a letter, exh. C, also written by Nenita. In this letter the sender (who signed as "D") apologized for her conduct, and expressed the hope that the addressee ("Darling") could join her in Baguio as she was alone in the Patria Inn and lonely in "a place for honeymooners". Immediately after her husband departed for Manila the following morning, the plaintiff enplaned for Baguio, where she learned that Nenita had actually stayed at the Patria Inn, but had already left for Manila before her arrival. Later she met her husband in the house of a relative in Manila from whence they proceeded to the Avenue Hotel where she again confronted him about Nenita. He denied having further relations with this woman. Celia Baez, testifying for the plaintiff, declared that she was employed as a cook in the home of the spouses from May 15, 1955 to August 15, 1958, and that during the entire period of her employment she

saw the defendant in the place only once. This declaration is contradicted, however, by the plaintiff herself who testified that in 1955 the defendant "used to have a short visit there," which statement implies more than one visit. The defendant, for his part, denied having abandoned his wife and children, but admitted that in 1957, or a year before the filing of the action, he started to live separately from his wife. When he transferred his living quarters to his office in Mandalagan, Bacolod City, his intention was not, as it never has been, to abandon his wife and children, but only to teach her a lesson as she was quarrelsome and extremely jealous of every woman. He decided to live apart from his wife temporarily because at home he could not concentrate on his work as she always quarreled with him, while in Mandalagan he could pass the nights in peace. Since 1953 he stayed in Manila for some duration of time to manage their expanding business and look for market outlets for their texboard products. Even the plaintiff admitted in both her original and amended complaints that "sometime in 1953, because of the expanding business of the herein parties, the defendant established an office in the City of Manila, wherein some of the goods, effects and merchandise manufactured or produced in the business enterprises of the parties were sold or disposed of". From the time he started living separately in Mandalagan up to the filing of the complaint, the plaintiff herself furnished him food and took care of his laundry. This latter declaration was not rebutted by the plaintiff. The defendant, with vehemence, denied that he has abandoned his wife and family, averring that he has never failed, even for a single month, to give them financial support, as witnessed by the plaintiff's admission in her original and amended complaints as well as in open court that during the entire period of their estrangement, he was giving her around P500 a month for support. In point of fact, his wife and children continued to draw allowances from his office of a total ranging from P1,200 to P1,500 a month. He financed the education of their children, two of whom were studying in Manila at the time of the trial and were not living with the plaintiff. While in Bacolod City, he never failed to visit his family, particularly the children. His wife was always in bad need of money because she played mahjong, an accusation which she did not traverse, explaining that she played mahjong to entertain herself and forget the infidelities of her husband. Marcos V. Ganaban, the manager of the Philippine Texboard Factory, corroborated the testimony of the defendant on the matter of the support the latter gave to his family, by declaring in court that since the start of his employment in 1950 as assistant general manager, the plaintiff has been drawing an allowance of P1,000 to P1,500 monthly, which amount was given personally by the defendant or, in his absence, by the witness himself. The defendant denied that he ever maintained a mistress in Manila. He came to know Nenita Hernandez when she was barely 12 years old, but had lost track of

her thereafter. His constant presence in Manila was required by the pressing demands of an expanding business. He denied having destroyed the alleged note which the plaintiff claimed to have come from Nenita, nor having seen, previous to the trial, the letter exh. C. The allegation of his wife that he had a concubine is based on mere suspicion. He had always been faithful to his wife, and not for a single instance had he been caught or surprised by her with another woman. On the matter of the alleged abuse by the defendant of his powers of administration of the conjugal partnership, the plaintiff declared that the defendant refused and failed to inform her of the progress of their various business concerns. Although she did not allege, much less prove, that her husband had dissipated the conjugal properties, she averred nevertheless that her husband might squander and dispose of the conjugal assets in favor of his concubine. Hence, the urgency of separation of property. The defendant's answer to the charge of mismanagement is that he has applied his industry, channeled his ingenuity, and devoted his time, to the management, maintenance and expansion of their business concerns, even as his wife threw money away at the mahjong tables. Tangible proof of his endeavors is that from a single cargo truck which he himself drove at the time of their marriage, he had built up one business after another, the Speedway Trucking Service, the Negros Shipping Service, the Bacolod Press, the Philippine Texboard Factory, and miscellaneous other business enterprises worth over a million pesos; that all that the spouses now own have been acquired through his diligence, intelligence and industry; that he has steadily expanded the income and assets of said business enterprises from year to year, contrary to the allegations of the complainant, as proved by his balance sheet and profit and loss statements for the year 1958 and 1959 (exhibits 1 and 2); and that out of the income of their enterprises he had purchased additional equipment and machineries and has partially paid their indebtedness to the Philippine National Bank and the Development Bank of the Philippines. It will be noted that the plaintiff does not ask for legal separation. The evidence presented by her to prove concubinage on the part of the defendant, while pertinent and material in the determination of the merits of a petition for legal separation, must in this case be regarded merely as an attempt to bolster her claim that the defendant had abandoned her, which abandonment, if it constitutes abandonment in law, would justify separation of the conjugal assets under the applicable provisions of article 178 of the new Civil Code which read: "The separation in fact between husband and wife without judicial approval, shall not affect the conjugal partnership, except that . . . if the husband has abandoned the wife without just cause for at least one year, she may petition the court for a receivership, or administration by her of the conjugal partnership property, or separation of property". In addition to abandonment as a ground, the plaintiff also invokes article 167 of the new Civil Code in support of her prayer for division of the matrimonial assets. This

article provides that "In case of abuse of powers of administration of the conjugal partnership property by the husband, the courts, on the petition of the wife, may provide for a receivership, or administration by the wife, or separation of property". It behooves us, therefore, to inquire, in the case at bar, whether there has been abandonment, in the legal sense, by the defendant of the plaintiff, and/or whether the defendant has abused his powers of administration of the conjugal partnership property, so as to justify the plaintiff's plea for separation of property. We have made a searching scrutiny of the record, and it is our considered view that the defendant is not guilty of abandonment of his wife, nor of such abuse of his powers of administration of the conjugal partnership, as to warrant division of the conjugal assets. The extraordinary remedies afforded to the wife by article 178 when she has been abandoned by the husband for at least one year are the same as those granted to her by article 167 in case of abuse of the powers of administration by the husband. To entitle her to any of these remedies, under article 178, there must be real abandonment, and not mere separation. 1 The abandonment must not only be physical estrangement but also amount to financial and moral desertion. Although an all-embracing definition of the term "abandonment " is yet to be spelled out in explicit words, we nevertheless can determine its meaning from the context of the Law as well as from its ordinary usage. The concept of abandonment in article 178 may be established in relation to the alternative remedies granted to the wife when she has been abandoned by the husband, namely, receivership, administration by her, or separation of property, all of which are designed to protect the conjugal assets from waste and dissipation rendered imminent by the husband's continued absence from the conjugal abode, and to assure the wife of a ready and steady source of support. Therefore, physical separation alone is not the full meaning of the term "abandonment", if the husband, despite his voluntary departure from the society of his spouse, neither neglects the management of the conjugal partnership nor ceases to give support to his wife. The word "abandon", in its ordinary sense, means to forsake entirely; to forsake or renounce utterly. 2 The dictionaries trace this word to the root idea of "putting under a bar". The emphasis is on the finality and the publicity with which some thing or body is thus put in the control of another, and hence the meaning of giving up absolutely, with intent never again to resume or claim one's rights or interests. 3 When referring to desertion of a wife by a husband, the word has been defined as "the act of a husband in voluntarily leaving his wife with intention to forsake her entirely, never to return to her, and never to resume his marital duties towards her, or to claim his marital rights; such neglect as either leaves the wife destitute of the common necessaries of life, or would leave her destitute but for the charity of others." 4 The word "abandonment", when referring to the act of one consort of leaving the other, is "the act

of the husband or the wife who leaves his or her consort wilfully, and with an intention of causing per perpetual separation." 5 Giving to the word "abandoned", as used in article 178, the meaning drawn from the definitions above reproduced, it seems rather clear that to constitute abandonment of the wife by the husband, there must be absolute cessation of marital relations and duties and rights, with the intention of perpetual separation. Coming back to the case at bar, we believe that the defendant did not intend to leave his wife and children permanently. The record conclusively shows that he continued to give support to his family despite his absence from the conjugal home. This fact is admitted by the complainant, although she minimized the amount of support given, saying that it was only P500 monthly. There is good reason to believe, however, that she and the children received more than this amount, as the defendant's claim that his wife and children continued to draw from his office more than P500 monthly was substantially corroborated by Marcos Ganaban, whose declarations were not rebutted by the plaintiff. And then there is at all no showing that the plaintiff and the children were living in want. On the contrary, the plaintiff admitted, albeit reluctantly, that she frequently played mahjong, from which we can infer that she had money; to spare. The fact that the defendant never ceased to give support to his wife and children negatives any intent on his part not to return to the conjugal abode and resume his marital duties and rights. In People v. Schelske, 6 it was held that where a husband, after leaving his wife, continued to make small contributions at intervals to her support and that of their minor child, he was not guilty of their "abandonment", which is an act of separation with intent that it shall be perpetual, since contributing to their support negatived such intent. In re Hoss' Estate, supra, it was ruled that a father did not abandon his family where the evidence disclosed that he almost always did give his wife part of his earnings during the period of their separation and that he gradually paid some old rental and grocery bills. With respect to the allegation that the defendant maintained a concubine, we believe, contrary to the findings of the court a quo, that the evidence on record fails to preponderate in favor of the plaintiff's thesis. The proof that Nenita Hernandez was the concubine of the defendant and that they were living as husband and wife in Manila, is altogether too indefinite. Aside from the uncorroborated statement of the plaintiff that she knew that Nenita Hernandez was her husband's concubine, without demonstrating by credible evidence the existence of illicit relations between Nenita and the defendant, the only evidence on record offered to link the defendant to his alleged mistress is exh. C. The plaintiff however failed to connect authorship of the said letter with Nenita, on the face whereof the sender merely signed as "D" and the addressee was one unidentified "Darling". The plaintiff's testimony on cross-examination, hereunder quoted, underscores such failure:

Q. You personally never received any letter from Nenita? A. No. Q. Neither have you received on any time until today from 1949 from Nenita? A. No. Q. Neither have you written to her any letter yourself until now? A. Why should I write a letter to her. Q. In that case, Mrs. De la Cruz, you are not familiar with the handwriting of Nenita. Is that right? A. I can say that Nenita writes very well. Q. I am not asking you whether she writes very well or not but, my question is this: In view of the fact that you have never received a letter from Nenita, you have ot sent any letter to her, you are not familiar with her handwriting? A. Yes. Q. You have not seen her writing anybody? A. Yes. Anent the allegation that the defendant had mismanaged the conjugal partnership property, the record presents a different picture. There is absolutely no evidence to show that he has squandered the conjugal assets. Upon the contrary, he proved that through his industry and zeal, the conjugal assets at the time of the trial had increased to a value of over a million pesos. The lower court likewise erred in holding that mere refusal or failure of the husband as administrator of the conjugal partnership to inform the wife of the progress of the family businesses constitutes abuse of administration. For "abuse" to exist, it is not enough that the husband perform an act or acts prejudicial to the wife. Nor is it sufficient that he commits acts injurious to the partnership, for these may be the result of mere inefficient or negligent administration. Abuse connotes willful and utter disregard of the interests of the partnership, evidenced by a repetition of deliberate acts and/or omissions prejudicial to the latter. 7 If there is only physical separation between the spouses (and nothing more), engendered by the husband's leaving the conjugal abode, but the husband continues to manage the conjugal properties with the same zeal, industry, and efficiency as he did prior to the separation, and religiously gives support to his wife and children, as in the case at bar, we are not disposed to grant the wife's petition for separation of property.

This decision may appear to condone the husband's separation from his wife; however, the remedies granted to the wife by articles 167 and 178 are not to be construed as condonation of the husband's act but are designed to protect the conjugal partnership from waste and shield the wife from want. Therefore, a denial of the wife's prayer does not imply a condonation of the husband's act but merely points up the insufficiency or absence of a cause of action.1wph1.t Courts must need exercise judicial restraint and reasoned hesitance in ordering a separation of conjugal properties because the basic policy of the law is homiletic, to promote healthy family life and to preserve the union of the spouses, in person, in spirit and in property. Consistent with its policy of discouraging a regime of separation as not in harmony with the unity of the family and the mutual affection and help expected of the spouses, the Civil Code (both old and new) requires that separation of property shall not prevail unless expressly stipulated in marriage settlements before the union is solemnized or by formal judicial decree during the existence of the marriage (Article 190, new Civil Code, Article 1432, old Civil Code): and in the latter case, it may only be ordered by the court for causes specified in Article 191 of the new Civil Code. 8 Furthermore, a judgment ordering the division of conjugal assets where there has been no real abandonment, the separation not being wanton and absolute, may altogether slam shut the door for possible reconciliation. The estranged spouses may drift irreversibly further apart; the already broken family solidarity may be irretrievably shattered; and any flickering hope for a new life together may be completely and finally extinguished. The monthly alimony in the sum of P2,000 which was allowed to the wife in 1958, long before the devaluation of the Philippine peso in 1962, should be increased to P3,000. On the matter of attorney's fees, it is our view that because the defendant, by leaving the conjugal abode, has given cause for the plaintiff to seek redress in the courts, and ask for adequate support, an award of attorney's fees to the plaintiff must be made. Ample authority for such award is found in paragraphs 6 and 11 of article 2208 of the new Civil Code which empower courts to grant counsel's fees "in actions for legal support" and in cases "where the court deems it just and equitable that attorney's fees . . . should be recovered." However, an award of P10,000, in our opinion, is, under the environmental circumstances, sufficient. This Court would be remiss if it did not, firstly, remind the plaintiff and the defendant that the law enjoins husband and wife to live together, and, secondly, exhort them to avail of mutually, earnestly and steadfastly all opportunities for reconciliation to

the end that their marital differences may be happily resolved, and conjugal harmony may return and, on the basis of mutual respect and understanding, endure. ACCORDINGLY, the judgment a quo, insofar as it decrees separation of the conjugal properties, is reversed and set aside. Conformably to our observations, however, the defendant is ordered to pay to the plaintiff, in the concept of support, the amount of P3,000 per month, until he shall have rejoined her in the conjugal home, which amount may, in the meantime, be reduced or increased in the discretion of the court a quo as circumstances warrant. The award of attorney's fees to the plaintiff is reduced to P10,000, without interest. No pronouncement as to costs. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Angeles and Fernando, JJ., concur. Footnotes
1

In 1980, the petitioner filed a complaint against Jo for judicial separation of conjugal property, docketed as Civil Case No. 51, in addition to an earlier action for support, also against him and docketed as Civil Case No. 36, in the Regional Trial Court of Negros Oriental, Branch 35. The two cases were consolidated and tried jointly. On November 29, 1983, Judge German G. Lee, Jr. rendered an extensive decision, the dispositive portion of which read: WHEREFORE, in view of all the foregoing arguments and considerations, this court hereby holds that the plaintiff Prima Partosa was legally married to Jose Jo alias Ho Hang, alias Consing, and, therefore, is entitled to support as the lawfully wedded wife and the defendant is hereby ordered to give a monthly support of P500.00 to the plaintiff Prima Partosa, to be paid on or before the 5th day of every month, and to give to the plaintiff the amount of P40,000.00 for the construction of the house in Zamboanguita, Negros Oriental where she may live separately from the defendant being entitled under the law to separate maintenance being the innocent spouse and to pay the amount of P19,200.00 to the plaintiff by way of support in arrears and to pay the plaintiff the amount of P3,000.00 in the concept of attorney's fees. As will be noticed, there was a definite disposition of the complaint for support but none of the complaint for judicial separation of conjugal property. Jo elevated the decision to the Court of Appeals, which affirmed the ruling of the trial court in the complaint for support. 1The complaint for judicial separation of conjugal property was dismissed for lack of a cause of action and on the ground that separation by agreement was not covered by Article 178 of the Civil Code. When their motions for reconsideration were denied, both parties came to this Court for relief. The private respondent's petition for review on certiorari was dismissed for tardiness in our resolution dated February 17, 1988, where we also affirmed the legality of the marriage between Jose and Prima and the obligation of the former to support her and her daughter. This petition deals only with the complaint for judicial separation of conjugal property. It is here submitted that the Court of Appeals erred in holding that: a) the judicial separation of conjugal property sought was not allowed under Articles 175, 178 and 191 of the Civil Code; and b) no such

Tolentino, Civil Code of the Philippines, Vol. 1, p. 436.

2

See Webster's International and standard dictionaries.

3

In re Hoss' Estate, 257 NYS 278. Gay vs. State, 31 S. L. 569. Note 4, supra.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 82606 December 18, 1992 PRIMA PARTOSA-JO, petitioner, vs. THE HONORABLE COURT OF APPEALS and HO HANG (with aliases JOSE JO and CONSING), respondents.

CRUZ, J.: The herein private respondent, Jose Jo, admits to having cohabited with three women and fathered fifteen children. The first of these women, the herein petitioner, claims to be his legal wife whom he begot a daughter, Monina Jo. The other women and their respective offspring are not parties of these case.

separation was decreed by the trial court in the dispositive portion of its decision. The private respondent contends that the decision of the trial court can longer be reviewed at this time because it has a long since become final and executory. As the decretal portion clearly made no disposition of Civil Case No. 51, that case should be considered impliedly dismissed. The petitioner should have called the attention of the trial court to the omission so that the proper rectification could be made on time. Not having done so, she is now concluded by the said decision, which can no longer be corrected at this late hour. We deal first with the second ground. While admitting that no mention was made of Civil Case No. 51 in the dispositive portion of the decision of the trial court, the petitioner argues that a disposition of the case was nonetheless made in the penultimate paragraph of the decision reading as follows: It is, therefore, hereby ordered that all properties in question are considered properties of Jose Jo, the defendant in this case, subject to separation of property under Article 178, third paragraph of the Civil Code, which is subject of separate proceedings as enunciated herein. The petitioner says she believed this to be disposition enough and so did not feel it was necessary for her to appeal, particularly since the order embodied in that paragraph was in her favor. It was only when the respondent court observed that there was no dispositive portion regarding that case and so ordered its dismissal that she found it necessary to come to this Court for relief. The petitioner has a point. The dispositive portion of the decision in question was incomplete insofar as it carried no ruling on the complaint for judicial separation of conjugal property although it was extensively discussed in the body of the decision. The drafting of the decision was indeed not exactly careful. The petitioner's counsel, noting this, should have taken immediate steps for the rectification for the omission so that the ruling expressed in the text of the decision could have been embodied in the decretal portion. Such alertness could have avoided this litigation on a purely technical issue. Nevertheless, the technicality invoked in this case should not be allowed to prevail over considerations of substantive justive. After all, the technical defect is not insuperable. We have said time and again that where there is an ambiguity caused by an omission or a mistake in the dispositive portion of the decision, this Court may clarify such an ambiguity by an amendment even after the judgment have become final. 2 In doing so, the Court may resort to the pleading filed by the

parties and the findings of fact and the conclusions of law expressed in the text or body of the decision. 3 The trial court made definite findings on the complaint for judicial separation of conjugal property, holding that the petitioner and the private respondent were legally married and that the properties mentioned by the petitioner were acquired by Jo during their marriage although they were registered in the name of the apparent dummy. There is no question therefore that the penultimate paragraph of the decision of the trial court was a ruling based upon such findings and so should have been embodied in the dispositive portion. The respondent court should have made the necessary modification instead of dismissing Civil Case No. 51 and thus upholding mere form over substance. In the interest of substantive justice, and to expedite these proceedings, we hereby make such modification. And now to the merits of Civil Case No. 51. The Court of Appeals dismissed the complaint on the ground that the separation of the parties was due to their agreement and not because of abondonment. The respondent court relied mainly on the testimony of the petitioner, who declared under oath that she left Dumaguete City, where she and Jo were living together "because that was our agreement." It held that a agreement to live separately without just cause was void under Article 221 of the Civil Code and could not sustain any claim of abandonment by the aggrieved spouse. Its conclusion was that the only remedy availabe to the petitioner was legal separation under Article 175 of the Civil Code, 4 by virtue of which the conjugal partnership of property would be terminated. The petitioner contends that the respondent court has misinterpreted Articles 175, 178 and 191 of the Civil Code. She submits that the agreement between her and the private respondent was for her to temporarily live with her parents during the initial period of her pregnancy and for him to visit and support her. They never agreed to separate permanently. And even if they did, this arrangement was repudiated and ended in 1942, when she returned to him at Dumaguete City and he refused to accept her. The petitioner invokes Article 178 (3) of the Civil Code, which reads: Art. 178. The separation in fact between husband and wife without judicial approval, shall not affect the conjugal partnership, except that: xxx xxx xxx (3) If the husband has abandoned the wife without just cause for at least one year, she may petition the court for a receivership, or administration by her

of the conjugal partnership property or separation of property. The above-quoted provision has been superseded by Article 128 of the Family Code, which states: Art. 128. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property, of for authority to be the sole administrator of the conjugal partnership property, subject to such precautionary conditions as the court may impose. The obligations to the family mentioned in the preceding paragraph refer to martial, parental or property relations. A spouse is deemed to have abondoned the other when he or she has left the conjugal dwelling without any intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. Under the this provision, the aggrieved spouse may petition for judicial separation on either of these grounds: 1. Abondonment by a spouse of the other without just cause; and 2. Failure of one spouse to comply with his or her obligations to the family without just cause, even if she said spouse does not leave the other spouse. Abandonment implies a departure by one spouse with the avowed intent never to return, followed by prolonged absence without just cause, and without in the meantime providing in the least for one's family although able to do so. 5 There must be absolute cessation of marital relations, duties and rights, with the intention of perpetual separation. 6 This idea is clearly expressed in the above-quoted provision, which states that "a spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without any intention of returning." The record shows that as early as 1942, the private respondent had already rejected the petitioner, whom he denied admission to their conjugal home in Dumaguete City when she returned from Zamboanguita. The fact that she was not accepted by Jo demonstrates all too clearly that he had no intention

of resuming their conjugal relationship. Moreover, beginning 1968 until the determination by this Court of the action for support in 1988, the private respondent refused to give financial support to the petitioner. The physical separation of the parties, coupled with the refusal by the private respondent to give support to the petitioner, sufficed to constitute abandonment as a ground for the judicial separation of their conjugal property. In addition, the petitioner may also invoke the second ground allowed by Article 128, for the fact is that he has failed without just cause to comply with his obligations to the family as husband or parent. Apart form refusing to admit his lawful wife to their conjugal home in Dumaguete City, Jo has freely admitted to cohabiting with other women and siring many children by them. It was his refusal to provide for the petitioner and their daughter that prompted her to file the actions against him for support and later for separation of the conjugal property, in which actions, significantly, he even denied being married to her. The private respondent has not established any just cause for his refusal to comply with his obligations to his wife as dutiful husband. Their separation thus falls also squarely under Article 135 of the Family Code, providing as follows: Art. 135. Any of the following shall be considered sufficient cause for judicial separation of property: xxx xxx xxx (6) That at the time of the petition, the spouse have been separated in fact for at least one year and reconciliation is highly improbable. The amendments introduced in the Family Code are applicable to the case before us although they became effective only on August 3, 1988. As we held in Ramirez v. Court of Appeals: 7 The greater weight of authority is inclined to the view that an appellate court, in reviewing a judgment on appeal, will dispose of a question according to the law prevailing at the term of such disposition, and not according to the law prevailing at the time of rendition of the appealed judgement. The court will therefore reverse a judgement which was correct at the time it was originally rendered where, by statute, there has been an intermediate change in the law which renders such judgement erroneous at the time the case was finally disposed of on appeal. The order of judicial separation of the properties in question is based on the finding of both the trial and respondent courts that the private respondent is

indeed their real owner. It is these properties that should now be divided between him and the petitioner, on the assumption that they were acquired during coverture and so belong to the spouses half and half. As the private respondent is a Chinese citizen, the division must include such properties properly belonging to the conjugal partnership as may have been registered in the name of other persons in violation of the Anti-Dummy Law. The past has caught up with the private respondent. After his extramarital flings and a succession of illegitimate children, he must now make an accounting to his lawful wife of the properties he denied her despite his promise to their of his eternal love and care. WHEREFORE, the petition is GRANTED and the assailed decision of the respondent court is MODIFIED. Civil Case No. 51 is hereby decided in favor the plaintiff, the petitioner herein, and the conjugal property of the petitioner and the private respondent is hereby ordered divided between them, share and share alike. This division shall be implemented by the trial court after determination of all the properties pertaining to the said conjugal partnership, including those that may have been illegally registered in the name of the persons. SO ORDERED. Padilla, Grio-Aquino and Bellosillo, JJ., concur. b.

5 Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, 1990 ed., Vol. 1, p. 398. 6 De la Cruz vs. De la Cruz, 22 SCRA 333. 7 72 SCRA 231. Defenses

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-13553 February 23, 1960

JOSE DE OCAMPO, petitioner, vs. SERAFINA FLORENCIANO, respondent. Joselito J. Coloma for petitioner. BENGZON, J.: Action for legal separation by Jose de Ocampo against his wife Serafina, on the ground of adultery. The court of first instance of Nueva Ecija dismissed it. The Court of Appeals affirmed, holding there was confession of judgment, plus condonation or consent to the adultery and prescription. We granted certiorari to consider the application of articles 100 and 101 of the New Civil Code, which for convenience are quoted herewith: ART. 100.The legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition. ART. 101.No decree of legal separation shall be promulgated upon a stipulation of facts or by confession of judgment. In case of non-appearance of the defendant, the court shall order the prosecuting attorney to inquire whether or not a collusion between the parties exists. If there is no collusion, the prosecuting attorney shall intervene for the State in order to take care that the evidence for the plaintiff is not fabricated. The record shows that on July 5, 1955, the complaint for legal separation was filed. As amended, it described

Footnotes 1 Chua, Segundino G., J., ponente, Coquia, Jorge R. and De Pano, Nathanael, Jr., P. JJ., concurring, promulgated on January 28, 1987. 2 Republic Surety and Insurance Co., Inc. vs. Intermediate Appellant Court, 152 SCRA 316; Alvendia vs. Intermediate Appellate Court, 181 SCRA 252. 3 Sentinel Insurance Co., Inc. vs. Court of Appeals. 182 SCRA 516. 4 Art. 175. The conjugal partnership of gains terminates: (1) Upon the death of either spouse; (2) When there is a decree of legal separation; (3) When the marriage is annulled; (4) In case of judicial separation of property under Article 191.

their marriage performed in 1938, and the commission of adultery by Serafina, in March 1951 with Jose Arcalas, and in June 1955 with Nelson Orzame. Because the defendant made no answer, the court defaulted her, and pursuant to Art. 101 above, directed the provincial fiscal to investigate whether or not collusion existed between the parties. The fiscal examined the defendant under oath, and then reported to the Court that there was no collusion. The plaintiff presented his evidence consisting of the testimony of Vicente Medina, Ernesto de Ocampo, Cesar Enriquez, Mateo Damo, Jose de Ocampo and Capt. Serafin Gubat. According to the Court of Appeals, the evidence thus presented shows that "plaintiff and defendant were married in April 5, 1938 by a religious ceremony in Guimba, Nueva Ecija, and had lived thereafter as husband and wife. They begot several children who are now living with plaintiff. In March, 1951, plaintiff discovered on several occasions that his wife was betraying his trust by maintaining illicit relations with one Jose Arcalas. Having found the defendant carrying marital relations with another man plaintiff sent her to Manila in June 1951 to study beauty culture, where she stayed for one year. Again, plaintiff discovered that while in the said city defendant was going out with several other men, aside from Jose Arcalas. Towards the end of June, 1952, when defendant had finished studying her course, she left plaintiff and since then they had lived separately. "On June 18, 1955, plaintiff surprised his wife in the act of having illicit relations with another man by the name of Nelson Orzame. Plaintiff signified his intention of filing a petition for legal separation, to which defendant manifested her conformity provided she is not charged with adultery in a criminal action. Accordingly, plaintiff filed on July 5, 1955, a petition for legal separation." The Court of Appeals held that the husband's right to legal separation on account of the defendant's adultery with Jose Arcalas had prescribed, because his action was not filed within one year from March 1951 when plaintiff discovered her infidelity. (Art. 102, New Civil Code) We must agree with the Court of Appeals on this point.1 As to the adultery with Nelson Orzame, the appellate court found that in the night of June 18, 1955, the husband upon discovering the illicit connection, expressed his wish to file a petition for legal separation and defendant readily agreed to such filing. And when she was questioned by the Fiscal upon orders of the court, she reiterated her conformity to the legal separation even as she admitted having had sexual relations with Nelson Orzame. Interpreting these facts virtually to mean a confession of judgment the Appellate Court declared that under Art. 101, legal separation could not be decreed. As we understand the article, it does not exclude, as evidence, any admission or confession made by the defendant outside of the court. It merely prohibits a decree of separation upon a confession of judgment. Confession of judgment usually happens when the

defendant appears in court and confesses the right of plaintiff to judgment or files a pleading expressly agreeing to the plaintiff's demand.2 This is not occur. Yet, even supposing that the above statement of defendant constituted practically a confession of judgment, inasmuch as there is evidence of the adultery independently of such statement, the decree may and should be granted, since it would not be based on her confession, but upon evidence presented by the plaintiff. What the law prohibits is a judgment based exclusively or mainly on defendant's confession. If a confession defeats the action ipso facto, any defendant who opposes the separation will immediately confess judgment, purposely to prevent it. The mere circumstance that defendants told the Fiscal that she "like also" to be legally separated from her husband, is no obstacle to the successful prosecution of the action. When she refused to answer the complaint, she indicated her willingness to be separated. Yet, the law does not order the dismissal. Allowing the proceeding to continue, it takes precautions against collusion, which implies more than consent or lack of opposition to the agreement. Needless to say, when the court is informed that defendant equally desires the separation and admitted the commission of the offense, it should be doubly careful lest a collusion exists. (The Court of Appeals did not find collusion.) Collusion in divorce or legal separation means the agreement. . . . between husband and wife for one of them to commit, or to appear to commit, or to be represented in court as having committed, a matrimonial offense, or to suppress evidence of a valid defense, for the purpose of enabling the other to obtain a divorce. This agreement, if not express, may be implied from the acts of the parties. It is a ground for denying the divorce. (Griffiths vs. Griffiths, 69 N. J. Eq. 689 60 Atl. 1099; Sandoz vs. Sandoz, 107 Ore. 282, 214 Pas. 590.). In this case, there would be collusion if the parties had arranged to make it appear that a matrimonial offense had been committed although it was not, or if the parties had connived to bring about a legal separation even in the absence of grounds therefor. Here, the offense of adultery had really taking place, according to the evidence. The defendant could not have falsely toldthe adulterous acts to the Fiscal, because her story might send her to jail the moment her husband requests the Fiscal to prosecute. She could not have practiced deception at such a personal risk. In this connection, it has been held that collusion may not be inferred from the mere fact that the guilty party confesses to the offense and thus enables the other party to procure evidence necessary to prove it.

(Williams vs. Williams, [N. Y.] 40 N. E. (2d) 1017; Rosenweig vs. Rosenweig, 246 N. Y. Suppl. 231; Conyers, vs. Conyers, 224 S. W. [2d] 688.). And proof that the defendant desires the divorce and makes no defense, is not by itself collusion. (Pohlman vs. Pohlman, [N. J.] 46 Atl. Rep. 658.). We do not think plaintiff's failure actively to search for defendant and take her home (after the latter had left him in 1952) constituted condonation or consent to her adulterous relations with Orzame. It will be remembered that she "left" him after having sinned with Arcalas and after he had discovered her dates with other men. Consequently, it was not his duty to search for her to bring her home. Hers was the obligation to return. Two decisions3 are cited wherein from apparently similar circumstances, this Court inferred the husband's consent to or condonation of his wife's misconduct. However, upon careful examination, a vital difference will be found: in both instances, the husband had abandoned his wife; here it was the wife who "left" her husband. Wherefore, finding no obstacles to the aggrieved husband's petition we hereby reverse the appealed decision and decree a legal separation between these spouse, all the consequent effects. Costs of all instances against Serafina Florenciano. So ordered. Paras, C. J., Padilla, Montemayor, Labrador, Concepcion, Reyes, J. B. L., Endencia, Barrera, and Gutierrez David, JJ.,concur.

Jimenez B. Buendia for appellant. Assistant City Fiscal Rafel A. Jose for appellee. REYES, J.B.L., J.: On July 14, 1955, William H. Brown filed suit in the Court of First Instance of Manila to obtain legal separation from his lawful wife Juanita Yambao. He alleged under oath that while interned by the Japanese invaders, from 1942 to 1945, at the University of Sto. Tomas internment camp, his wife engaged in adulterous relations with one Carlos Field of whom she begot a baby girl that Brown learned of his wifes misconduct only in 1945, upon his release from internment; that thereafter the spouse lived separately and later executed a document (Annex A ) liquidating their conjugal partnership and assigning certain properties to the erring wife as her share. The complaint prayed for confirmation of the liquidation agreement; for custody of the children issued of the marriage; that the defendant be declared disqualified to succeed the plaintiff; and for their remedy as might be just and equitable. Upon petition of the plaintiff, the court subsequently declared the wife in default, for failure to answer in due time, despite service of summons; and directed the City Fiscal or his representatives to investigate, in accordance with Article 101 of the Civil Code, whether or not a collusion exists between the parties and to report to this Court the result of his investigation within fifteen (15) days from receipt of copy of this order. The City Fiscal or his representative is also directed to intervene in the case in behalf of the State. (Rec. App. p. 9). As ordered, Assistant City Fiscal Rafael Jose appeared at the trial, and cross-examined plaintiff Brown. His questions (strenuously objected to by Brown's counsel) elicited the fact that after liberation, Brown had lived maritally with another woman and had begotten children by her. Thereafter, the court rendered judgment denying the legal separation asked, on the ground that, while the wife's adultery was established, Brown had incurred in a misconduct of similar nature that barred his right of action under Article 100 of the new Civil Code, providing: ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has been no condonation or of consent to the adultery or concubinage. Where both spouses are offenders, a legal separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition. that there had been consent and connivance, and because Brown's action had prescribed under Article 102 of the same Code: ART. 102 An action for legal separation cannot be filed except within one year from and after

Footnotes
1

Brown vs. Yambao, 102 Phil., 168.

Cf. Phil. National Bank vs. Ingersoll, 43 Phil., 444, See generally Corpus Juris Secundum "Judgments" sec. 134.
3

People vs. Sensano, 58 Phil., 73; People vs. Guinucud, 58 Phil., 621.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-10699 October 18, 1957

WILLIAM H. BROWN, plaintiff-appellant, vs. JUANITA YAMBAO, defendant-appellee.

the date on which the plaintiff became cognizant of the cause and within five years from and after date when such cause occurred. since the evidence showed that the learned of his wife's infidelity in 1945 but only filed action in 1945. Brown appeared to this Court, assigning the following errors: The court erred in permitting the Assistant Fiscal Rafel Jose of Manila to act as counsel for the defendant, who defaulted. The court erred in declaring that there was condonation of or consent to the adultery. The court erred in dismissing the plaintiff's complaint. Appellant Brown argues that in cross-examining him with regard to his marital relation with Lilia Deito, who was not his wife, the Assistant Fiscal acted as consel for the defaulting wife, "when the power of the prosecuting officer is limited to finding out whether or not there is collusion, and if there is no collusion, which is the fact in the case at bar, to intervene for the state which is not the fact in the instant case, the truth of the matter being that he intervened for Juanita Yambao, the defendant-appellee, who is private citizen and who is far from being the state.". The argument is untenable. Collusion in matrimonial cases being "the act of married persons in procuring a divorce by mutual consent, whether by preconcerted commission by one of a matrimonial offense, or by failure, in pursuance of agreement to defend divorce proceedings" (Cyclopedia Law Dictionary; Nelson, Divorce and Separation, Section 500), it was legitimate for the Fiscal to bring to light any circumstances that could give rise to the inference that the wife's default was calculated, or agreed upon, to enable appellant to obtain the decree of legal separation that he sought without regard to the legal merits of his case. One such circumstance is obviously the fact of Brown's cohabitation with a woman other than his wife, since it bars him from claiming legal separation by express provision of Article 100 of the new Civil Code. Wherefore, such evidence of such misconduct, were proper subject of inquiry as they may justifiably be considered circumstantial evidence of collusion between the spouses. The policy of Article 101 of the new Civil Code, calling for the intervention of the state attorneys in case of uncontested proceedings for legal separation (and of annulment of marriages, under Article 88), is to emphasize that marriage is more than a mere contract; that it is a social institution in which the state is vitally interested, so that its continuation or interruption cannot be made depend upon the parties themselves (Civil Code, Article 52; Adong vs, Cheong Gee, 43 Phil, 43; Ramirez vs. Gmur 42 Phil. 855; Goitia vs. Campos, 35 Phil. 252). It is consonant with this policy that the injury by the Fiscal should be allowed to focus upon

any relevant matter that may indicate whether the proceedings for separation or annulment are fully justified or not. The court below also found, and correctly held that the appellant's action was already barred, because Brown did not petition for legal separation proceedings until ten years after he learned of his wife's adultery, which was upon his release from internment in 1945. Under Article 102 of the new Civil Code, action for legal separation can not be filed except within one (1) year from and after the plaintiff became cognizant of the cause and within five years from and after the date when such cause occurred. Appellant's brief does not even contest the correctness of such findings and conclusion. It is true that the wife has not interposed prescription as a defense. Nevertheless, the courts can take cognizance thereof, because actions seeking a decree of legal separation, or annulment of marriage, involve public interest and it is the policy of our law that no such decree be issued if any legal obstacles thereto appear upon the record. Hence, there being at least two well established statutory grounds for denying the remedy sought (commission of similar offense by petitioner and prescription of the action), it becomes unnecesary to delve further into the case and ascertain if Brown's inaction for ten years also evidences condonation or connivance on his part. Even if it did not, his situation would not be improved. It is thus needless to discuss the second assignment of error. The third assignment of error being a mere consequence of the others must necessarily fail with them. The decision appealed from is affirmed, with costs against appellant. So ordered. Bengzon, Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion, Endencia and Felix, JJ.,concur.

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 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. 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 admissiondefendant 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.)lawphil.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.) 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. 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 abovecited, 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 (Rogersvs. Rogers, 67 N. J. Eq. 534) or sleeping together for a single night (Toulson vs. Toulson, 50 Atl. 401, citing Phinizyvs. 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. Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L. and Endencia, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-11766 October 25, 1960

defendant and Asuncion deported themselves as husband and wife and were generally reputed as such in the community. After the trial, without the defendant adducing any evidence, the court a quo rendered judgment holding that the acts of defendant constituted concubinage, a ground for legal separation. It however, dismissed the complaint by stating: While this legal ground exist, the suit must be dismissed for two reasons, viz: Under Art. 102 of the new Civil Code, 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 the cause occurred. The plaintiff became aware of the illegal cohabitation of her husband with Asuncion Rebulado in January, 1955. The complaint was filed on April 24, 1956. The present action was, therefore, filed out of time and for that reason action is barred. Article 100 of the new Civil Code provides that the legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. As shown in Exhibit B, the plaintiff has consented to the commission of concubinage by her husband. Her consent is clear from the following stipulations: (b) That both of us is free to get any mate and live with as husband and wife without any interference by any of us, nor either of us can prosecute the other for adultery or concubinage or any other crime or suit arising from our separation. (Exh. B). This stipulation is an unbridled license she gave her husband to commit concubinage. Having consented to the concubinage, the plaintiff cannot claim legal separation. The above decision is now before us for review, plaintiff- appellant claiming that it was error for the lower court to have considered that the period to bring the action has already elapsed and that there was consent on the part of the plaintiff to the concubinage. The proposition, therefore, calls for the interpretation of the provisions of the law upon which the lower court based its judgment of dismissal. Article 102 of the new Civil Code provides: 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 after the date when cause occurred.

SOCORRO MATUBIS, plaintiff-appellant, vs. ZOILO PRAXEDES, defendant-appellee. Luis N. de Leon for appellant. Lucio La. Margallo for appellee. PAREDES, J.: Alleging abandonment and concubinage, plaintiff Socorro Matubis, filed with the Court of First Instance of Camarines Sur, on April 24, 1956, a complaint for legal Separation and changed of surname against her husband defendant Zoilo Praxedes. The allegations of the complaint were denied by defendant spouse, who interposed the defense that it was plaintiff who left the conjugal home. During the trial, wherein the plaintiff alone introduced oral as well as documentary evidence, the following facts were established:. Plaintiff and defendant were legally married on January 10, 1943 at Iriga, Camarines Sur. For failure to agree on how they should live as husband and wife, the couple, on May 30, 1944, agreed to live separately from each other, which status remained unchanged until the present. On April 3, 1948, plaintiff and defendant entered into an agreement (Exhibit B), the significant portions of which are hereunder reproduced.. . . . (a) That both of us relinquish our right over the other as legal husband and wife. (b) That both without any interference by any of us, nor either of us can prosecute the other for adultery or concubinage or any other crime or suit arising from our separation. (c) That I, the, wife, is no longer entitled for any support from my husband or any benefits he may received thereafter, nor I the husband is not entitled for anything from my wife. (d) That neither of us can claim anything from the other from the time we verbally separated, that is from May 30, 1944 to the present when we made our verbal separation into writing. In January, 1955, defendant began cohabiting with one Asuncion Rebulado and on September 1, 1955, said Asuncion gave birth to a child who was recorded as the child of said defendant (Exh. C.).It was shown also that

The complaint was filed outside the periods provided for by the above Article. By the very admission of plaintiff, she came to know the ground (concubinage) for the legal separation in January, 1955. She instituted the complaint only on April 24, 1956. It is to be noted that appellant did not even press this matter in her brief. The very wording of the agreement Exhibit B. gives no room for interpretation other than that given by the trial judge. Counsel in his brief submits that the agreement is divided in two parts. The first part having to do with the act of living separately which he claims to be legal, and the second part that which becomes a license to commit the ground for legal separation which is admittedly illegal. We do not share appellant's view. Condonation and consent on the part of plaintiff are necessarily the import of paragraph 6(b) of the agreement. The condonation and consent here are not only implied but expressed. The law (Art. 100 Civil Code), specifically provides that legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Having condoned and/or consented in writing, the plaintiff is now undeserving of the court's sympathy (People vs. Scheneckenburger, 73 Phil., 413). Plaintiff's counsel even agrees that the complaint should be dismissed. He claims however, that the grounds for the dismissal should not be those stated in the decision of the lower court, "but on the ground that plaintiff and defendant have already been legally separated from each other, but without the marital bond having been affected, long before the effectivity of the new Civil Code" (appellants brief, pp. 7-8). Again, we cannot subscribed to counsel's contention, because it is contrary to the evidence. Conformably with the foregoing, we find that the decision appealed from is in accordance with the evidence and the law on the matter. The same is hereby affirmed, with costs. Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, and Gutierrez David, JJ., concur.

Del Rosario and Del Rosario and W. F. Mueller for petitioner. J. Lopez Vito for respondents. JOHNSON, J.: This is an original petition presented in the Supreme Court. Its purpose is to obtain an order declaring: ( a) That the respondent, the Honorable Antonio Villareal, as Auxiliary Judge sitting in the Court of First Instance of the province of Iloilo, has no jurisdiction to take cognizance of a certain action for divorce instituted in said court by the respondent Narcisa Geopano against her husband, Diego de la Via, the petitioner herein; (b) that the said respondent judge has exceeded his power and authority in issuing, in said action, a preliminary injunction against the said petitioner prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action; and (c) that all the proceedings theretofore had in said court were null and void. It appears from the record that on September 17, 1917, Narcisa Geopano filed a complaint in the Court of First Instance of the Province of Iloilo against Diego de la Via, alleging: (1) That she was a resident of the municipality of Iloilo, Province of Iloilo, and that the defendant was a resident of the municipality of Vallehermoso, Province of Oriental Negros; (2) that she was the legitimate wife of the defendant, having been married to him in the municipality of Guijulgan, Province of Negros Oriental, in the year 1888; (3) that since their said marriage plaintiff and defendant had lived as husband and wife and had nine children, three of whom were living and were already of age; (4) that during their marriage plaintiff and defendant had acquired property, real and personal, the value of which was about P300,000 and all of which was under the administration of the defendant; (5) that since the year 1913 and up to the date of the complaint, the defendant had been committing acts of adultery with one Ana Calog, sustaining illicit relations with her and having her as his concubine, with public scandal and in disgrace of the plaintiff; (6) that because of said illicit relations, the defendant ejected the plaintiff from the conjugal home, for which reason she was obliged to live in the city of Iloilo, where she had since established her habitual residence; and (7) that the plaintiff, scorned by her husband, the defendant, had no means of support and was living only at the expense of one of her daughters. Upon said allegations she prayed for (a) a decree of divorce, (b) the partition of the conjugal property, and (c) alimony pendente lite in the sum of P400 per month. Subsequent to the filing of the said complaint, Narcisa Geopano, the plaintiff therein, presented a motion, which was later amended, alleging, among other things, that since the filing of her complaint she had personal knowledge that the defendant was trying to alienate or encumber the property which belonged to the conjugal partnership between the plaintiff and the defendant, to the prejudice of the plaintiff, and prayed that a preliminary injunction be issued against the defendant restraining and prohibiting him in the premises.

E. consequence of filing of petition for legal separation Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-13982 July 31, 1920

DIEGO DE LA VIA, petitioner, vs. ANTONIO VILLAREAL, as Auxiliary Judge of First Instance, and NARCISA GEOPANO, respondents.

The defendant Diego de la Via, petitioner herein, opposed the said motion for a preliminary injunction, and, subsequently, demurred to the complaint upon the ground that the court had no jurisdiction to take cognizance of the cause, "nor over the person of the defendant." After hearing the respective parties the respondent judge, in to separate orders, dated November 1 and November 2, 1917, respectively, overruled the defendant's demurrer, and granted the preliminary injunction prayed for by the plaintiff. Thereafter and on April 27, 1918, the defendant, Diego de la Via filed the present petition for certiorari in this court, upon the ground that the respondent judge had no jurisdiction to take cognizance of the action in question, and had exceeded his power and authority in issuing said preliminary injunction. The questions arising out of the foregoing facts are as follows: 1. May a married woman ever acquire a residence or domicile separate from that of her husband during the existence of the marriage? 2. In an action for divorce, brought by the wife against her husband, in which the partition of the conjugal property is also prayed for, may the wife obtain a preliminary injunction against the husband restraining and prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action? I. The petitioner contends that the Court of First Instance of Iloilo had no jurisdiction to take cognizance of the said action for divorce because the defendant therein was a resident of the Province of Negros Oriental and the plaintiff, as the wife of the defendant, must also be considered a resident of the same province inasmuch as, under the law, the domicile of the husband is also the domicile of the wife; that the plaintiff could not acquire a residence in Iloilo before the arriage between her and the defendant was legally dissolved. This contention of the petitioner is not tenable. It is true, as a general of law, that the domicile of the wife follows that of her husband. This rule is founded upon the theoretic identity of person and of interest between the husband and the wife, and the presumption that, from the nature of the relation, the home of the one is that of the other. It is intended to promote, strenghten, and secure their interests in this relation, as it ordinarily exists, where union and harmony prevail. But the authorities are unanimous in holding that this is not an absolute rule. "Under modern laws it is clear that many exceptions to the rule that the domicile from of the wife is determined by that of her husband must obtain. Accordingly, the wife may acquire another and seperate domicile from that of her husband where the theorical unity of husband and wife is is dissolved, as it is by the institution of divorce proceedings; or where

the husband has given cause for divorce; or where there is a separation of the parties by agreement, or a permanent separation due to desertion of the wife by the husband or attributable to cruel treatment on the part of the husband; or where there has been a forfeiture by the wife of the benefit of the husband's domicile." (9 R. C. L., 545.) The case of Narcisa Geopano comes under one of the many exceptions above-mentioned, to wit: "Where the husband has given cause for divorce, the wife may acquire another and seperate domicile from that of her husband." In support of this proposition there is a formidable array of authorities. We shall content ourselves with illustrative quotations from a few of them, as follows: Although the law fixes the domicile of the wife as being that of her husband, universal jurisprudence recognizes an exception to the rule in the case where the husband's conduct has been such as to furnish lawful ground for a divorce, which justifies her in leaving him, and, therefore, necessarily authorities her to live elsewhere and to acquire a separate domicile. Cheever vs. Wilson, 9 Wall. (U. S.), 108; Barber vs. Barber, 21 How. (U. S.), 582; 2 Bishop, Mar. and Div., 475; Schouler, Hus. and Wife, sec. 574; 5 Am. and Eng. Encyc. of Law, p. 756." (Smith vs. Smith, 43 La. Ann., 1140, 1146.) The matrimonial domicile of the wife is usually that of the husband, but if she is justified in leaving him because his conduct has been such as to entitle her to a divorce, and she thereupon does leave him and go into another state for the purpose of there permanently residing, she acquires a domicile in the latter state. (Atherton vs. Atherton, 155 N. Y., 129; 63 Am. St. Rep., 650.) The law will recognize a wife as having a separate existence, and separate interests, and separate rights, in those cases where the express object of all proceedings is to show that the relation itself ougth to be dissolved, or so modified as to establish separate interests, and especially a separate domicile and home, bed and board being put, apart for the whole, as expressive of the idea of home. Otherwise the parties, in this respect, would stand upon very unequal ground, it being in the power of the husband to change his domicile at will, but not in that of the wife. (Harteau vs. Harteau, 14 Pick. [Mass.], 181; 25 Am. Dec., 372, 375-376.) Under the pauper laws, and upon general principles, the wife is regarded as having the domicile of her husband; hut this results from his marital rights, and the duties of the wife. If the husband has forfeited those rights be misbehavior, and has left and deserted the wife, they may have different domiciles, in the view of the law regulating divorces.

(Harding vs. Alden, 9 Greenl. [Me.], 140; 23 Am. Dec., 549, 552.) Though as a general principle of law the domicile of the husband is regarded as the domicile of the wife, according to the prevailing view a wife may acquire a residence or domicile separate from her husband so as to confer jurisdiction upon the courts of the state, in which her domicile or residence is established, to decree a divorce in her favor. (9 R. C. L. 400-401, citing various cases.) The law making the domicile of the husband that of the wife is applicable only to their relations with third parties, and has no application in cases of actual separation and controversy between themselves as to the temporary or permanent severance of the marriage ties by judicial proceedings. Vence vs. Vence, 15 How. Pr., 497; Schonwaldvs. Schonwald, 55 N. C., 367; Cheever vs. Wilson, 76 U. S. (9 Wall.), 109; 19 L. ed., 605. (Notes, p. 498, 16 L. R. A.) In the case of Schonwald vs. Schonwald (55 N. C., 343), the plaintiff tried to do what the petitioner in this case insists the respondent Narcisa Geopano should have done. In that case the wife filed a bill of divorce in a court in North Carolina, where her husband resided. She herself had not resided in that state for three years previous to the filing of the suit, as required by the statute; but she claimed that the domicile of her husband was also her domicile and, inasmuch as her husband, the defendant, had been a resident of North Carolina for more than three years, she had also been a resident of that state during that time. The court dismissed the bill, holding that the legal maxim that "her domicile is that of her husband" would not avail in the stead of an actual residence. The court said: It is true that for many purpose the domicile of the husband is the domicile of the wife, but it is not so for every purpose. The maxim that the domicile of the wife follows that of the husband cannot be applied to oust the court of its jurisdiction; neither, from party of reasons can it give jurisdiction. (P. 344.) Turning to the Spanish authorities, we find that they agree with the American authorities in holding that the maxim or rule that the domicile of the wife follows that of the husband, is not an absolute one. Scaevola, commenting on article 40 of the Civil Code (which is the only legal provision or authority relied upon by the petitioner in this case), says: Although article 64 of the Law of Civil Procedure provides that the domicile of a married woman, not legally separated from her husband, is that of the latter, yet, when the tacit consent of the husband and other circumstances justify it, for the purpose of determining jurisdiction, the habitual residence of the woman should be considered as her domicile where her right may be exercised in

accordance with article 63. (Scaevola, Civil Code, p. 354.) Manresa, commenting upon the same article (art. 40) says: The domicile of married women not legally separated from their husband shall be that of the latter. This principle, maintained by the Supreme Court in numerous decisions, was modified in a particular case by the decision of June 17, 1887, and in conformity with this last decision, three others were afterwards rendered on October 13, 23, and 28, 1899, in all of which it is declared that when married women as well as children subject to parental authority live, with the acquiescence of their husbands or fathers, in a place distinct from where the latter live, they have their own independent domicile, which should be considered in determining jurisdiction in cases of provisional support guardianship of persons, etc. (1 Manresa, 233.) If the wife can acquire a separate residence when her husband consents or acquiesces, we see no reason why the law will not allow her to do so when, as alleged in the present case, the husband unlawfully ejects her from the conjugal home in order that he may freely indulge in his illicit relations with another woman. Under no other circumstance could a wife be more justified in establishing a separate residence from that of her husband. For her to continue living with him, even if he had permitted it, would have been a condonation of his flagrant breach of fidelity and marital duty. Furthermore, in this case no longer was there an "identity of persons and of interest between the husband and the wife." Therefore the law allowed her to acquire a separate residence. For, "it would do violence to the plainest principle of common sense and common justice of to call this residence of the guilty husband, where the wife is forbidden to come, . . . the domicile of the wife." (Champon vs. Champon, 40 La. Ann., 28.) It is clear, therefore, that a married woman may acquire a residence or domicile separate from that of her husband, during the existence of the marriage, where the husband has given cause for divorce. II. We come now to the second question whether or not the respondent judge exceeded his power in issuing the preliminary injunction complained of by the petitioner. Section 164 of Act No. 190 provides: A preliminary injunction may be granted when it is established, in the manner hereinafter provided, to the satisfaction of the judge granting it:

1. That the plaintiff is entitled to the relief demanded and such relief, or any part thereof, consists in restraining the commission or continuance of the acts complained of either for a limited period or perpetually; 2. That the commission or continuance of some act complained of during the litigation would probably work injustice to the plaintiff; 3. That the defendant is doing, or threatens, on is about to do, or is procuring or suffering to be done, some act probably in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual. The petitioner quotes the foregoing section and argues that the respondent Narcisa Geopano was not entitled to have a preliminary injunction issued against her husband because contrary to the requirement of the first paragraph of said section, she was not entitled to the relief demanded, which consisted in restraining the power and authority which the law confers upon the husband; that under articles 1412 and 1413 of the Civil Code, the husband is the manager of the conjugal partnership and, as such, is empowered to alienate and encumber and conjugal property without the consent of the wife; that neither could the wife obtain a preliminary injunction under paragraph 3 of said section, upon the ground that the defendant was committing some acts in violation of the plaintiff's rights, because the plaintiff, as the wife of the defendant, had nor right to intervene in the administration of the conjugal property, and therefore no right of hers was violated. We cannot subscribe to that argument of counsel. The law making the husband the sole administrator of the property of the conjugal partnership is founded upon necessity and convenience as well as upon the presumption that, from the very nature of the relating between husband and wife, the former will promote and not injure the interests of the latter. So long as this harmonious relation, as contemplated by law, continues, the wife cannot and should not interfere with the husband in his judicious administration of the conjugal property. But when that relation ceases and, in a proper action, the wife seeks to dissolve the marriage and to partition the conjugal property, it is just and proper, in order to protect the interests of the wife, that the husband's power of administration be curtailed, during the pendency of the action, insofar as alienating or encumbering the conjugal property is concerned. In her motion for a preliminary injunction, Narcisa Geopano alleged that the defendant was about to alienate or encumber the property belonging to the conjugal partnerships, with the object of injuring her interests; and this allegation does not appear to have been controverted by the defendant either in this court or in the court below. In view of this fact, we are of the opinion that under both paragraphs 2 and 3 of section 164 of Act No. 190, above quoted, the respondent judge was empowered and justified in granting the

preliminary injunction prayed for by her. It cannot be doubted that, if the defendant should dispose of all or any part of the conjugal property during the pendency of the action for divorce, and squander or fraudulently conceal the proceeds, that act "would probably work injustice to the plaintiff," or that it would probably be "in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual." In this case the plaintiff's rights sought to be protected by said paragraph 3 is not the right to administer the conjugal property, as counsel for the petitioner believes, but the right to share in the conjugal property upon the dissolution of the conjugal partnership. The case under consideration, then, is covered or contemplated by the statute (sec. 164, Act No. 190), so that there can be no question, in our opinion, as to the power of the respondent judge to issue the preliminary injunction complained of by the petitioner. Indeed, even in a case not covered by the statute this court had upheld the power of Court of First Instance to grant preliminary injunctions. In the case of Manila Electric Railroad and Light Company vs. Del Rosario and Jose (22 Phil., 433), Doroteo Jose asked for, and the Court of First Instance granted ex parte, a writ of preliminary mandatory injunction directing the Manila Electric Railroad and Light Company to continue furnishing electricity to Jose. Thereupon the Light Company filed in this court a petition for the writ of certiorari against Judge S. del Rosario upon the ground that Courts of First Instance in these Islands are wholly without jurisdiction to issue preliminary mandatory injunctions under any circumstances whatever. This court denied that petition, determining the power of the Courts of First Instance to issue preliminary injunction, as follows: The power to grant preliminary injunctions, both preventative and mandatory, is a logical and necessary incident of the general powers conferred upon Courts of First Instance in these Islands, as courts of record of general and unlimited original jurisdiction, both legal and equitable. Insofar as the statute limits or prescribes the exercise of this power it must be followed: but beyond this, and in cases not covered by or contemplated by the statute, these courts must exercise their jurisdiction in the issuance of preliminary injunctions upon sound principles applicable to the circumstances of each particular case, having in mind the nature of the remedy, and the doctrine and practice established in the courts upon which our judicial is modeled. The only limitation upon the power of Courts of First Instance to issue preliminary injunctions, either mandatory of preventative, is that they are to be issued in the "manner" or according to the "method" provided therefor in the Code of Civil Procedure.

We conclude, therefore, that in an action for divorce brought by the wife against the husband, in which the partition of the conjugal property is also prayed for, the wife may obtain a preliminary injunction against the husband, prohibiting the latter from alienating or encumbering any part of the conjugal property during the pendency of the action. It follows from all of the foregoing that the respondent, the Honorable Antonio Villareal, as Auxiliary Judge sitting in the Court of First Instance of the Province of Iloilo, had jurisdiction to hear and determine the action for divorce instituted in said court by the respondent Narcisa Geopano, and that he did not exceed his power and authority in issuing a preliminary injunction against the defendant, prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action. Therefore, the petition should be and is hereby denied, with costs against the petitioner. So ordered. Mapa, C.J., Carson, Araullo, Malcolm, Avancea, Moir and Villamor, JJ., concur. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-48219 February 28, 1979 MANUEL J. C. REYES, petitioner, vs. HON. LEONOR INES-LUCIANO, as Judge of the Juvenile & Domestic Relations Court, Quezon City, COURT OF APPEALS and CELIA ILUSTREREYES, respondents. Eriberto D. Ignacio for petitioner. Gonzalo D. David for private respondent.

that the defendant had attempted to kill plaintiff. The pertinent allegations of the complaint are: 6.8 On March 10, 1976, defendant went to V. Ilustre and attacked plaintiff. He pummeled her with fist blows that floored her, then held her head and, with intent to kill, bumped it several times against the cement floor. When she ran upstairs to her father for protection, he pushed her at the stairway of 13 flights and she fell sliding to the ground floor. Determined to finish her off, he again gave her a strong swing at her abdomen which floored her half unconscious. Were it not for plaintiff's father, he would have succeeded killing her; 6.9. On May 26, 1976, although on May 11 previous she ceased holding office with defendant at Bel-Air Apartments elsewhere adverted to, she went thereto to get her overnight bag. Upon seeing her, defendant yelled at her to get out of the office. When he did not mind him, he suddenly doused her with a glass of grape juice, kicked her several times that landed at her back and nape, and was going to hit her with a steel tray as her driver, Ricardo Mancera, came due to her screams for help. For fear of further injury and for life, she rushed to Precinct 5 at united Nations Avenue, Manila Metropolitan Police, for assistance and protection; 2 The plaintiff asked for support pendente lite for her and her three children. The defendant, petitioner herein, opposed the application for support pendente lite on the ground that his wife had committed adultery with her physician. The application for support pendente lite was set for hearing and submitted for resolution on the basis of the pleadings and the documents attached thereto by the parties. The respondent Judge issued an order dated March 15, 1977 granting plaintiff's prayer for alimony pendente lite in the amount of P5,000.00 a month commencing from June 1976. 3 The petitioner filed a motion for reconsideration reiterating that his wife is not entitled to support during the pendency of the case, and, alleging that even if she entitled, the amount awarded was excessive. The respondent Judge reduced the amount from P5,000.00 to P44,00.00 a month in an order dated June 17, 1977. 4 Manuel J. C. Reyes filed a petition for certiorari in the Court of Appeals dated July 25, 1977 asking that the order granting support pendente lite to private respondent. Celia Ilustre-Reyes, be annulled on the ground that the respondent Judge, Leonor Ines-

FERNANDEZ, J.: This is a petition for certiorari to review the decision of the Court of Appeals in CA-G.R. No. 06928-SP entitled "Manuel J. C. Reyes, petitioner, versus, The Hon. Leonor Ines-Luciano as Judge of the Juvenile & Domestic Relations Court (Quezon City) and Celia Ilustre-Reyes, Respondents", dismissing the petition to annul the order of the respondent Judge directing the petitioner to give support pendente lite to his wife, Celia Ilustre-Reyes, private respondent herein, in the amount of P40,000.00 a month. 1 The private petitioner, Celia Ilustre-Reyes, filed in the Juvenile and Domestic Relations Court of Quezon City a complaint dated June 3, 1976 against her husband, Manuel J. C. Reyes, for legal separation on the ground

Luciano, had committed a grave abuse of discretion or that said order be modified inasmuch as the amount awarded as support pendente lite is excessive. The Court of Appeals dismissed the petition because: Considering the plight of the wife during the pendency of the case for legal separation and that the husband appears to be financially capable of giving the support, We believe that the petitioner has not presented a clear case of grave abuse of discretion on the part of the respondent in issuing the questioned orders. We see no compelling reason to give it due course. 5 The petitioner contends that the Court of Appeal committed the following error: THE HON. COURT OF APPEALS GRIEVOUSLY ERRED IN A MANNER AMOUNTING IT CAN ERROR OF LAW AND A DEPARTURE FROM THE ACCEPTED NORMS LAID DOWN BY THIS HON. COURT IN THE CASES WE SHALL LATER ON DISCUSS, IN REFUSING TO GIVE DUE COURSE TO THE ORIGINAL PETITION FOR certiorari HEREIN AGAINST RESPONDENTS-APPELLEES, AND IN AFFIRMING THE ORDERS FOR SUPPORT PENDENTE LITE ANNEXES "F" AND "H" OF THIS PETITION WHEN HELD THAT RESPONDENT-APPELLEE JUDGE DID NOT COMMIT ANY ABUSE OF DISCRETION IN ISSUING SAID ORDERS, FOR THE REASONS THAT: A. IN ACTIONS FOR LEGAL SEPARATION THE WIFE IS ENTITLED TO SUPPORT FROM THE HUSBAND DESPITE THE FACT THAT A CASE FOR ADULTERY HAD BEEN FILED BY THE HUSBAND AGAINST HER; AND B. IN DETERMINING THE AMOUNT OF SUPPORT PENDENTE LITE, IT IS ENOUGH THAT THE COURT ASCERTAIN THE KIND AND AMOUNT OF EVIDENCE EVEN BY AFFIDAVITS ONLY OR OTHER DOCUMENTARY EVIDENCE APPEARING IN THE RECORDS. 6 It is true that the adultery of the wife is a defense in an action for support however, the alleged adultery of wife must be established by competent evidence. The allegation that the wife has committed adultery will not bar her from the right receive support pendente lite. Adultery is a good defense and if properly proved and sustained wig defeat the action. 7 In the instant case, at the hearing of the application for support pendente lite before the Juvenile and Domestic Relations Court presided by the respondent Judge, Hon.

Leonor Ines-Luciano the petitioner did not present any evidence to prove the allegation that his wife, private respondent Celia Ilustre-Reyes, had committed adultery with any person. The petitioner has still the opportunity to adduce evidence on the alleged adultery of his wife when the action for legal separation is heard on the merits before the Juvenile and Domestic Relations Court of Quezon City. It is to be noted however, that as pointed out by the respondents in their comment, the "private respondent was not asking support to be taken from petitioner's personal funds or wherewithal, but from the conjugal propertywhich, was her documentary evidence ...". 8 It is, therefore, doubtful whether adultery will affect her right to alimony pendente lite. In Quintana vs. Lerma,9 the action for support was based on the obligation of the husband to support his wife. The contention of the petitioner that the order of the respondent Judge granting the private respondent support pendente lite in the amount of P4,000.00 a month is not supported by the allegations of the complaint for legal separation and by competent evidence has no merit. The complaint or legal separation contains allegations showing that on at least two occasions the defendant, petitioner herein, had made attempts to kill the private respondent. Thus it is alleged that on March 10, 1976, the defendant attacked plaintiff, pummeled her with fist blows that floored her, held her head and with intent to kill, bumped it several times against the cement floor and when she ran upstairs to her father for protection, the petitioner pushed her at the stairway of thirteen (13) flights and she fell sliding to the ground floor and defendant gave her a strong swing at her abdomen which floored her half unconscious and were it not for plaintiff's father, defendant would have succeeded in killing her. 10 It is also alleged that on May 26, 1976, the defendant doused Celia Ilustre-Reyes with a glass of grape juice, kicked her several times at her back and nape and was going to hit her with a steel tray if it were not for her driver who came due to her creams for help."11 In fixing the amount of monthly support pendente lite of P4,000,00, the respondent judge did not act capriciously and whimsically. When she originally fixed the amount of P5,000.00 a month, the respondent Judge considered the following: On record for plaintiff's cause are the following: that she and defendant were married on January 18, 1958; that she is presently unemployed and without funds, thus, she is being supported by her father with whom she resides: that defendant had been maltreating her and Cried to kill her; that all their conjugal properties are in the possession of defendant who is also president, Manager and Treasurer of their corporation namely:

1. Standard Mineral Products, which was incorporated on February 9, 1959: presently with paid-in capital of P295,670.00; assets and liabilities of P757,108.52; Retained Earnings of P85,654.61: and majority stockholder is defendant; 2. Development and Technology Consultant Inc. incorporated on July 12, 1971, with paid-in capital of P200,000.00; Assets and liabilities of P831,669.34; defendant owns 99% of the stocks; and last Retained Earnings is P98,879.84. 3. The Contra-Prop Marine Philippines, Inc. which was incorporated on October 3, 1975, with paid-in capital of P100,000 defendant owns 99% of the stocks. To secure some of the of said Agreement of Counter-Guaranty Mortgage with Real Estate, and Real Estate Mortgage were undertaken by plaintiff of their properties outside of other accommodations; and that she needs of P5,000.00 a month for her support in accordance with their station in life. 12 The amount of support pendente lite was reduced to P4,000.00 inasmuch as the children are in the custody of the petitioner and are being supported by him. It is thus seen that the respondent judge acted with due deliberation before fixing the amount of support pendente lite in the amount of P4,000.00 a month. In determining the amount to be awarded as support pendente lite it is not necessary to go fully into the merits of the case, it being sufficient that the court ascertain the kind and amount of evidence which it may deem sufficient to enable it to justly resolve the application, one way or the other, in view of the merely provisional character of the resolution to be entered. Mere affidavits may satisfy the court to pass upon the application for support pendente lite. 13 It is enough the the facts be established by affidavits or other documentary evidence appearing in the record. 14 The private respondent has submitted documents showing that the corporations controlled by the petitioner have entered into multi-million contracts in projects of the Ministry of Public Highways. Considering the high cost of living due to inflation and the financial ability of the petitioner as shown by the documents of record, We find that the amount of P4,000.00 a month granted by the respondent Judge as alimony pendente lite to the private respondent is not excessive. There is no showing that the respondent Judge has committed a grave abuse of discretion in granting said support.

In a resolution dated July 31, 1978, this Court issued a temporary restraining order effective immediately against the enforcement of the lower court's order giving support pendente lite to private respondent in the sum of P4,000.00 monthly commencing June 1976 and in lieu thereof to allow such support only to the extent of P1,000.00 a month. 15 Later the petitioner was required to pay the support at the rate of P1,000.00 a month which had accumulated since June 1976 within ten (10) days from notice of the resolution: 16 The private respondent acknowledged on November 20, 1978 having received from the petitioner, through his counsel a check in the amount of P30,000.00 as payment of support for the period from June 1976 to November 1978 or thirty (30) months at P1,000.00 a month in compliance with the resolution of this Court dated October 9, 1978. In view of the foregoing, the support of P4,000.00 should be made to commence or, March 1, 1979. WHEREFORE, the petition for certiorari is hereby denied and the decision of the Council of Appeals sought to be reviewed is affirmed with the modification that the support pendente lite at the rate of Four Thousand Pesos (P4.000.00) a month should commence from March 1, 1979 without pronouncement as to costs. SO ORDERED. Teehankee (Chairman), Makasiar, Guerrero, De Castro and Melencio-Herrera, JJ., concur.

#Footnotes 1 Annex "K" to Petition, Rollo pp. 7477, Decision written by Mr. Justice B. S. de la Fuente and concurred in by Mr. Justice Ramon G. Gaviola, Jr. and Mr. Justice Porfirio V. Sison. 2 Paragraphs 6.8 and 6.9 of the Complaint, Rollo, p. 28. 3 Annex "F", Rollo, pp. 46-49. 4 Annex "H", Rollo, pp. 55. 5 Decision, Rollo, P. 77. 6 Petition, Rollo, pp. 16-17. 7 Quintana vs. Lerma, 24 Phil. 285-286. 8 Annex "J", Rollo, pp. 67, 70.

9 24 Phil. 285-286. 10 Paragraph 6.8, Rollo. p. 28. 11 Paragraph 6.9, Rollo. p. 28. 12 Annex "F ", Rollo, p. 46. 13 Sanchez vs. Zulueta, et al., 68 Phil. 110, 112. 14 Salazar vs. Salazar G.R. No. L-5823, April 29, 1953, 82 Phil. 1084. 15 Rollo, p. 121-f. 16 Resolution of October 9, 1978, Rollo, p. 496.

September 1934; that they had lived together as husband and wife continuously until 1943 when her husband abandoned her; that they had no child; that they acquired properties during their marriage; and that she discovered her husband cohabiting with a Chinese woman named Go Hiok at 1319 Sisa Street, Manila, on or about March 1949. She prayed for the issuance of a decree of legal separation, which, among others, would order that the defendant Eufemio S. Eufemio should be deprived of his share of the conjugal partnership profits. In his second amended answer to the petition, herein respondent Eufemio S. Eufemio alleged affirmative and special defenses, and, along with several other claims involving money and other properties, counter-claimed for the declaration of nullity ab initio of his marriage with Carmen O. Lapuz Sy, on the ground of his prior and subsisting marriage, celebrated according to Chinese law and customs, with one Go Hiok, alias Ngo Hiok. Issues having been joined, trial proceeded and the parties adduced their respective evidence. But before the trial could be completed (the respondent was already scheduled to present surrebuttal evidence on 9 and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular accident on 31 May 1969. Counsel for petitioner duly notified the court of her death. On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal separation" 1 on two (2) grounds, namely: that the petition for legal separation was filed beyond the one-year period provided for in Article 102 of the Civil Code; and that the death of Carmen abated the action for legal separation. On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by her father, Macario Lapuz. Counsel for Eufemio opposed the motion. On 29 July 1969, the court issued the order under review, dismissing the case. 2 In the body of the order, the court stated that the motion to dismiss and the motion for substitution had to be resolved on the question of whether or not the plaintiff's cause of action has survived, which the court resolved in the negative. Petitioner's moved to reconsider but the motion was denied on 15 September 1969. After first securing an extension of time to file a petition for review of the order of dismissal issued by the juvenile and domestic relations court, the petitioner filed the present petition on 14 October 1969. The same was given due course and answer thereto was filed by respondent, who prayed for the affirmance of the said order. 3 Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims, he did not pursue them after the court below dismissed the case. He acquiesced in the dismissal of said counterclaims by praying for the affirmance of the order that dismissed not only the petition for legal separation but

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-30977 January 31, 1972 CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ, petitioner-appellant, vs. EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee. Jose W. Diokno for petitioner-appellant. D. G. Eufemio for respondent-appellee.

REYES J.B.L., J.:p Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an order, dated 29 July 1969, of the Juvenile and Domestic Relations Court of Manila, in its Civil Case No. 20387, dismissing said case for legal separation on the ground that the death of the therein plaintiff, Carmen O. Lapuz Sy, which occurred during the pendency of the case, abated the cause of action as well as the action itself. The dismissal order was issued over the objection of Macario Lapuz, the heir of the deceased plaintiff (and petitioner herein) who sought to substitute the deceased and to have the case prosecuted to final judgment. On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S. Eufemio, alleging, in the main, that they were married civilly on 21 September 1934 and canonically on 30

also his counterclaim to declare the Eufemio-Lapuz marriage to be null and void ab initio. But petitioner Carmen O. Lapuz Sy (through her selfassumed substitute for the lower court did not act on the motion for substitution) stated the principal issue to be as follows: When an action for legal separation is converted by the counterclaim into one for a declaration of nullity of a marriage, does the death of a party abate the proceedings? The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit to one for declaration of nullity of a marriage, which is without basis, for even petitioner asserted that "the respondent has acquiesced to the dismissal of his counterclaim" (Petitioner's Brief, page 22). Not only this. The petition for legal separation and the counterclaim to declare the nullity of the self same marriage can stand independent and separate adjudication. They are not inseparable nor was the action for legal separation converted into one for a declaration of nullity by the counterclaim, for legal separation pre-supposes a valid marriage, while the petition for nullity has a voidable marriage as a pre-condition. The first real issue in this case is: Does the death of the plaintiff before final decree, in an action for legal separation, abate the action? If it does, will abatement also apply if the action involves property rights? . An action for legal separation which involves nothing more than the bed-and-board separation of the spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one else) to claim legal separation; and in its Article 108, by providing that the spouses can, by their reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already rendered. Being personal in character, it follows that the death of one party to the action causes the death of the action itself actio personalis moritur cum persona. ... When one of the spouses is dead, there is no need for divorce, because the marriage is dissolved. The heirs cannot even continue the suit, if the death of the spouse takes place during the course of the suit (Article 244, Section 3). The action is absolutely dead (Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. H. 1933, 332.") 4 . Marriage is a personal relation or status, created under the sanction of law, and an action for divorce is a proceeding brought for the purpose of effecting a dissolution of that relation. The action is one of a personal nature. In the absence of a statute to the

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

From this article it is apparent that the right to the dissolution of the conjugal partnership of gains (or of the absolute community of property), the loss of right by the offending spouse to any share of the profits earned by the partnership or community, or his disqualification to inherit by intestacy from the innocent spouse as well as the revocation of testamentary provisions in favor of the offending spouse made by the innocent one, are all rights and disabilities that, by the very terms of the Civil Code article, are vested exclusively in the persons of the spouses; and by their nature and intent, such claims and disabilities are difficult to conceive as assignable or transmissible. Hence, a claim to said rights is not a claim that "is not thereby extinguished" after a party dies, under Section 17, Rule 3, of the Rules of Court, to warrant continuation of the action through a substitute of the deceased party. Sec. 17. Death of party. After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and to be substituted for the deceased, within a period of thirty (30) days, or within such time as may be granted... The same result flows from a consideration of the enumeration of the actions that survive for or against administrators in Section 1, Rule 87, of the Revised Rules of Court: SECTION 1. Actions which may and which may not be brought against executor or administrator. No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; but actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced against him. Neither actions for legal separation or for annulment of marriage can be deemed fairly included in the enumeration.. A further reason why an action for legal separation is abated by the death of the plaintiff, even if property rights are involved, is that these rights are mere effects of decree of separation, their source being the decree itself; without the decree such rights do not come into existence, so that before the finality of a decree, these claims are merely rights in expectation. If death supervenes during the pendency of the action, no decree can be forthcoming, death producing a more radical and definitive separation; and the expected consequential rights and claims would necessarily remain unborn.

As to the petition of respondent-appellee Eufemio for a declaration of nullity ab initio of his marriage to Carmen Lapuz, it is apparent that such action became moot and academic upon the death of the latter, and there could be no further interest in continuing the same after her demise, that automatically dissolved the questioned union. Any property rights acquired by either party as a result of Article 144 of the Civil Code of the Philippines 6 could be resolved and determined in a proper action for partition by either the appellee or by the heirs of the appellant. In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83, paragraph 2, of the Civil Code, because the second marriage had been contracted with the first wife having been an absentee for seven consecutive years, or when she had been generally believed dead, still the action for annulment became extinguished as soon as one of the three persons involved had died, as provided in Article 87, paragraph 2, of the Code, requiring that the action for annulment should be brought during the lifetime of any one of the parties involved. And furthermore, the liquidation of any conjugal partnership that might have resulted from such voidable marriage must be carried out "in the testate or intestate proceedings of the deceased spouse", as expressly provided in Section 2 of the Revised Rule 73, and not in the annulment proceeding. ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and Domestic Relations is hereby affirmed. No special pronouncement as to costs. Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and Makasiar, JJ., concur.

Footnotes 1 Per Annex "G" to Petition, rollo, pages 96-98, being the motion to dismiss. 2 Per Annex "I" to Petition, rollo, pages 132-137, being the order of dismissal. 3 Answer, rollo, pages 174-182. 4 Planiol, Civil Law Treatise, Vol. 1, Part 1, pages 658-659. 5 Bushnell v. Cooper, 124 N. E. 521, 522. 6 "Art. 144. When a man and a woman live together as husband and wife, but they are not married, or that marriage is void from the beginning, the property acquired by either or both of them through their work or industry or their wages and salaries shall be

governed by the rules on coownership."

f. effects of decree EN BANC [G.R. No. L-5820. September 18, 1953.] ROSARIO MATUTE, TRINIDAD MATUTE, CARLOS MATUTE, MATIAS MATUTE and RAMON MATUTE, Petitioners,vs. HON. HIGINO MACADAEG and HON. MAGNO GATMAITAN, Judges of the Court of First Instance of Manila, Branch X, and AMADEO MATUTE, Respondents. DECISION BAUTISTA ANGELO, J.: This is a petition for certiorari and mandamus in which petitioners seek to nullify the orders of respondent judge dated January 4 and April 30, 1952, denying their petition to appeal as paupers from the decision rendered in Civil Case No. 14208 of the Court of First Instance of Manila and, as alternative relief, to direct respondent judge to give course to their appeal in the event their petition to appeal as paupers is denied. Petitioners were plaintiffs in Civil Case No. 14208 filed in the Court of First Instance of Manila against respondent Amadeo Matute "For Partition and Delivery of share in conjugal property, with Petition For Receivership." Simultaneously with the filing of the complaint, petitioners filed a petition to litigate as paupers under the provisions of Rule 3, section 22, of the Rules of Court. This petition was granted by the court, then presided over by respondent judge. Amadeo Matute, hereinafter referred to as respondent, instead of answering the complaint, filed a motion to dismiss, and after proper hearing, the court entered an order on October 31, 1951 dismissing the complaint on the ground of res adjudicata. Copy of said order was received by petitioners on November 3, 1951. On December 1, 1951, petitioners filed their notice of appeal, record on appeal and a motion to appeal as paupers in lieu of the appeal bond. On December 8, 1951, respondent filed a written opposition to the motion to appeal as paupers alleging that petitioners were not really paupers who could be allowed to litigate as such under the Rules of Court. In view of this opposition, the court set the motion for hearing, but at this hearing, petitioners failed to appear, and on January 4, 1952, the court entered an order denying the motion. Copy of this order was received by petitioners on January 18, 1952. On January 24, 1952, petitioners filed a motion for reconsideration of the order entered on January 4, 1952. This motion was heared on January 26, and on April 30, 1952, the court denied the motion. Copy of the order of denial was received by petitioners on May

9, 1952, and on the same date they filed an appeal bond of P60 coupled with a manifestation that the filing of said bond should not be deemed as a waiver of their petition to prosecute their appeal as paupers in the event this question is raised by them before the Supreme Court. On May 14, 1952, respondent filed a motion to declare the judgment on the merits final and executory, and notwithstanding the opposition of Petitioners, the motion was granted on May 17, 1952. Hence, this petition for certiorari. The only question to be determined is whether petitioners can still appeal from the decision rendered in civil case No. 14208 considering that they had filed the appeal bond beyond the thirty-day period from the date copy of the decision was served on said petitioners. It appears that when petitioners filed the complaint against respondent in civil case No. 14208 for partition and delivery of their share in certain conjugal property, they submitted to the court a petition to litigate as paupers and this petition was granted under Rule 3, section 22, of the Rules of Court. Under said section 22, the authority to litigate as pauper "shall include an exemption from payment of legal fees and from filing appeal bond, printed record and printed brief." It is perhaps for this reason that when petitioners took steps to perfect their appeal from the decision rendered in the main case, instead of filing an appeal bond, they filed a motion to appeal as paupers in lieu thereof. We take it that by virtue of the authority given by the court to petitioners to litigate as paupers in the case, they are entitled to appeal without need of filing an appeal bond, and this right can only be divested when the court rules otherwise. The record shows that in view of the opposition interposed by respondent to the motion of petitioners to appeal as paupers, the court set the motion for hearing, and because of the failure of petitioners to appear, the court entered an order denying it, copy of which was received by petitioners on January 18, 1952. On January 24, 1952, petitioners filed a motion for reconsideration. On April 30, 1952, the court denied this motion, and copy of the order was received by petitioners on May 9, 1952. And on the same date petitioners filed an appeal bond of P60 with the reservation above adverted to. It therefore appears that, while said appeal bond was not filed within the period of thirty days counting from the date they received copy of the decision of the case (October 31, 1951), the record however shows that the said appeal bond was filed only six days from receipt of the order denying their motion to appeal as paupers, excluding the period spent in considering their motion for reconsideration. In our opinion, the appeal bond has been filed on time because, as already stated, petitioners were entitled to appeal as paupers under the original authority until the court rules otherwise, and this ruling only came on January 4, 1952. With regard to the other question touching on the alleged abuse committed by respondent judge in denying the motion of petitioners to appeal as paupers,

we find that said judge did not abuse his discretion in denying it. There is enough evidence to warrant his action. Wherefore, the petition as to the alternative relief is hereby granted, without pronouncement as to costs.chanroblesvirtualawlibrary Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and Labrador, JJ., concur.

WHEREFORE, petitioner respectfully prayed that after the necessary proceedings are had, she be allowed to resume using her maiden name of Elisea Laperal. The petition was opposed by the City Attorney of Baguio on the ground that the same violates the provisions of Article 370 (should be 372) of the Civil Code, and that it is not sanctioned by the Rules of Court. In its decision of October 31, 1960, the court denied the petition for the reason that Article 372 of the Civil Code requires the wife, even after she is decreed legally separated from her husband, to continue using the name and surname she employed before the legal separation. Upon petitioner's motion, however, the court, treating the petition as one for change of name, reconsidered its decision and granted the petition on the ground that to allow petitioner, who is a businesswoman decreed legally separated from her husband, to continue using her married name would give rise to confusion in her finances and the eventual liquidation of the conjugal assets. Hence, this appeal by the State. The contention of the Republic finds support in the provisions of Article 372 of the New Civil Code which reads: ART. 372. When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation. (Emphasis supplied) Note that the language of the statute is mandatory that the wife, even after the legal separation has been decreed, shall continue using her name and surname employed before the legal separation. This is so because her married status is unaffected by the separation, there being no severance of the vinculum. It seems to be the policy of the law that the wife should continue to use the name indicative of her unchanged status for the benefit of all concerned. The appellee contends, however, that the petition is substantially for change of her name from Elisea L. Santamaria, the one she has been using, since her marriage, to Elisea Laperal, her maiden name, giving as reason or cause therefor her being legally separated from the husband Enrique R. Santamaria, and the fact that they have ceased to live together for many years. There seems to be no dispute that in the institution of these proceedings, the procedure prescribed in Rule 103 of the Rules of Court for change of name has been observed. But from the petition quoted in full at the beginning of these opinion, the only reason relied upon for the change of name is the fact that petitioner is legally separated from her husband and has, in fact, ceased to live with him for many years. It is doubtful, to say the least, whether Rule 103 which refers to change of name in general, may prevail over the specific provisions of Article 372 of the New Civil Code with regards to married women legally separated from their husbands. Even, however, applying Rule 103 to

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-18008 October 30, 1962

ELISEA LAPERAL, petitioner, vs. REPUBLIC OF THE PHILIPPINES, oppositor. Martin B. Laurea and Associates for petitioner. Office of the Solicitor General for oppositor. BARRERA, J.: On May 10, 1960, Elisea Laperal filed in the Court of First Instance of Baguio (Sp Proc. No. 433) a petition which reads: 1. That petitioner has been a bona fide resident of the City of Baguio for the last three years prior to the date of the filing of this petition; 2. That petitioner's maiden name is ELISEA LAPERAL; that on March 24, 1939, she married Mr. Enrique R. Santamaria; that in a partial decision entered on this Honorable Court on January 18, 1958, in Civil Case No. 356 of this Court, entitled 'Enrique R. Santamaria vs. Elisea L. Santamaria' Mr. Enrique Santamaria was given a decree of legal separation from her; that the said partial decision is now final; 3. That during her marriage to Enrique R. Santamaria, she naturally used, instead of her maiden name, that of Elisea L. Santamaria; that aside from her legal separation from Enrique R. Santamaria, she has also ceased to live with him for many years now; 4. That in view of the fact that she has been legally separated from Mr. Enrique R. Santamaria and has likewise ceased to live with him for many years, it is desirable that she be allowed to change her name and/or be permitted to resume using her maiden name, to wit: ELISEA LAPERAL.

this case, the fact of legal separation alone which is the only basis for the petition at bar is, in our opinion, not a sufficient ground to justify a change of the name of herein petitioner, for to hold otherwise would be to provide an easy circumvention of the mandatory provisions of Article 372. It is true that in the second decision which reconsidered the first it is stated that as the petitioner owns extensive business interests, the continued used of her husband surname may cause undue confusion in her finances and the eventual liquidation of the conjugal assets. This finding is however without basis. In the first place, these were not the causes upon which the petition was based; hence, obviously no evidence to this effect had been adduced. Secondly, with the issuance of the decree of legal separation in 1958, the conjugal partnership between petitioner and her husband had automatically been dissolved and liquidated. (Art. 106[2], Civil Cod). Consequently, there could be no more occasion for an eventual liquidation of the conjugal assets. WHEREFORE, the order of the lower court of December 1, 1960, granting the petition, is hereby set aside and the petition dismissed. Without costs. So ordered. Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Paredes, Dizon, Regala and Makalintal, JJ., concur. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-49542 September 12, 1980 ANTONIO MACADANGDANG, petitioner, vs. THE HONORABLE COURT OF APPEALS and ELIZABETH MEJIAS, respondents.

sometime in March, 1967 (p. 38, t.s.n., June 7, 1972 in CC No. 109). She also alleges that due to the affair, she and her husband separated in 1967 (p. 63, t.s.n., Sept. 21, 1972). On October 30, 1967 (7 months or 210 days following the illicit encounter), she gave birth to a baby boy who was named Rolando Macadangdang in baptismal rites held on December 24,1967 (Annex "A", List of Exhibits). The records also disclose that on April 25, 1972, respondent (then plaintiff) filed a complaint for recognition and support against petitioner (then defendant) with the Court of First Instance of Davao, Branch IX. This case was docketed as Civil Case No. 263 (p. 1, ROA). Defendant (now petitioner) Macadangdang filed his answer on June 30, 1972, opposing plaintiff's claim and praying for its dismissal (p. 3, ROA). On August 9, 1972, the lower court in a pre-trial conference, issued a Pre-trial Order formalizing certain stipulations, admissions and factual issues on which both parties agreed (pp. 4, 5, and 6, ROA). Correspondingly, upon agreement of the parties, an amended complaint was filed by plaintiff on October 17, 1972 (pp. 7,8 and 9, ROA). In its decision rendered on February 27, 1973, the lower court dismissed the complaint,. The decision invoked positive provisions of the Civil Code and Rules of Court and authorities (pp. 10-18, ROA). On April 18, 1973, plaintiff appealed the CFI decision to the Court of Appeals (p. 59, In her appeal, appellant assigned these errors: 1. The Honorable Trial Court erred in applying in the instant case the provisions of Arts. 255 and 256 of the Civil Code and Secs. 4[a], 4[b] and 4[c], Rule 131, of the Revised Rules of Court (p. 18, rec.); 2. The Honorable Trial Court erred in holding that plaintiff-appellant cannot validly question the legitimacy of her son, Rolando Macadangdang, by a collateral attack without joining her legal husband as a party in the instant case (p. 18, rec.). In its decision handed down on June 2, 1978, the Court of Appeals reversed the lower court's decision (p. 47, and thus declared minor Rolando to be an illegitimate son of Antonio Macadangdang (p. 52, rec.). On November 6, 1978, the Court of Appeals denied appellant's motions for reconsideration for lack of merit. (p. 56, rec.). Hence, petitioner filed this petition on January 12, 1979.

MAKASIAR, J.: This petition for review seeks to set aside the decision of the Court of Appeals in CA-G.R. No. 54618-R which reversed the decision of the Court of First Instance of Davao, Branch IX dismissing the action for recognition and support filed by respondent Elizabeth Mejias against petitioner Antonio Macadangdang, and which found minor Rolando to be the illegitimate son of petitioner who was ordered to give a monthly support of P350.00 until his alleged son reaches the age of majority (p. 47, rec.; p. 10, ROA). The records show that respondent Elizabeth Mejias is a married woman, her husband being Crispin Anahaw (pp. 61-62, t.s.n., Sept. 21, 1972; pp. 10-11, Brief for Respondent [P. 198, rec.]) She allegedly had intercourse with petitioner Antonio Macadangdang

The issues boil down to: 1. Whether or not the child Rolando is conclusively presumed the legitimate issue of the spouses Elizabeth Mejias and Crispin Anahaw; and 2. Whether or not the wife may institute an action that would bastardize her child without giving her husband, the legally presumed father, an opportunity to be heard. The crucial point that should be emphasized and should be straightened out from the very beginning is the fact that respondent's initial illicit affair with petitioner occurred sometime in March, 1967 and that by reason thereof, she and her husband separated. This fact surfaced from the testimony of respondent herself in the hearing of September 21, 1972 when this case was still in the lower court. The pertinent portions of her testimony are thus quoted: By Atty. Fernandez: Q What did you feel as a result of the incident where Antonio Macadangdang used pill and took advantage of your womanhood? A I felt worried, mentally shocked and humiliated. Q If these feelings: worries, mental shock and humiliation, if estimated in monetary figures, how much win be the amount? A Ten thousand pesos, sir. Q And because of the incidental what happened to your with Crispin Anahaw. xxx xxx xxx WITNESS: A We separate, sir. (pp. 6163, T.s.n., Civil Case No. 263, Sept. 21, 1972; emphasis supplied). From the foregoing line of questions and answers, it can be gleaned that respondent's answers were given with spontaneity and with a clear understanding of the questions posed. There cannot be any other meaning or interpretation of the word "incident" other than that of the initial contact between petitioner and

respondent. Even a layman would understand the clear sense of the question posed before respondent and her categorical and spontaneous answer which does not leave any room for interpretation. It must be noted that the very question of her counsel conveys the assumption of an existing between respondent and her husband. The finding of the Court of Appeals that respondent and her husband were separated in 1965 cannot therefore be considered conclusive and binding on this Court. It is based solely on the testimony of respondent which is self-serving. Nothing in the records shows that her statement was confirmed or corroborated by another witness and the same cannot be treated as borne out by the record or that which is based on substantial evidence. It is not even confirmed by her own husband, who was not impleaded. In the case of Tolentino vs. De Jesus (L-32797, 56 SCRA 167 [1974], this Court restated that the findings of facts of the Court of Appeals are conclusive on the parties and on the Supreme Court, unless (1) the conclusion is a finding grounded entirely on speculation, surmise, and conjectures; (2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on misapprehension of facts; (5) the Court of Appeals went beyond the issues of the case and its findings are contrary to the admission of both appellant and appellee; (6) the findings of facts of the Court of Appeals are contrary to those of the trial court; (7) said findings of facts are conclusions without citation of specific evidence on which they are based; (8) the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondent; and (9) when the finding of facts of the Court of Appeals is premised on the absence of evidence and is contradicted by evidence on record [Pioneer Insurance and Surety Corporation vs. Yap, L-36232, December 19, 1974; Roque vs. Buan, L22459, 21 SCRA 642 (1967); Ramos vs. Pepsi-cola Bottling Company of the Philippines, L-225533, 19 SCRA 289 (1967); emphasis supplied]. Again, in Roque vs. Buan, supra, this Court reiterated the aforestated doctrine adding four more exceptions to the general rule. This case invoked the same ruling in the previous case of Ramos vs. Pepsi-Cola Bottling Company, etc., supra. In the recent case of Francisca Alsua-Betts, et al. vs. Court of Appeals, et al. (L-46430-31, July 30, 1979), which petitioner aptly invokes, this Court thus emphasized: ... But what should not be ignored by lawyers and litigants alike is the more basic principle that the "findings of fact" described as "final" or "conclusive" are those borne out by the record or those which are based upon substantial evidence. The general rule laid down by the Supreme Court does not declare the absolute correctness of all the findings of fact

made by the Court of Appeals. There are exceptions to the general rule, where we have reviewed the findings of fact of the Court of Appeals ... (emphasis supplied). The following provisions of the Civil Code and the Rules of Court should be borne in mind: Art. 255. Children born after one hundred and eighty days following the celebration of the marriage, and before three hundred days following its dissolution or the separation of the spouses shall be presumed to be legitimate. Against this presumption, no evidence shall be admitted other than that of the physical impossibility of the husband's having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of the child. This physical impossibility may be caused: (1) By the impotence of the husband; (2) By the fact that the husband and wife were separately, in such a way that access was not possible; (3) By the serious illness of the husband. Art. 256. The child shall be presumed legitimate, although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. Art. 257. Should the wife commit adultery at or about the time of the conception of the child, but there was no physical impossibility of access between her and her husband as set forth in article 255, the child is prima facie presumed to be illegitimate if it appears highly improbable, for ethnic reasons, that the child is that of the husband. For the purposes of this article, the wife's adultery need not be proved in a criminal case. xxx xxx xxx Sec. 4. Quasi-conclusive presumptions of legitimacy (a) Children born after one hundred eighty days following the celebration of the marriage, and before three

hundred days following its dissolution or the separation of the spouses shall be presumed legitimate. Against presumption no evidence be admitted other than that of the physical impossibility of the husband's having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of the child. This physical impossibility may be caused: [1] By the impotence of the husband [2] By the fact that the husband and the wife were living separately, in such a way that access was not possible; [3] By the serious illness of the husband; (b) The child shall be presumed legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. (c) Should the wife commit adultery at or about the time of the conception of the child, but there was no physical impossibility of access between her and her husband as set forth above, the child is presumed legitimate, unless it appears highly improbable, for ethnic reasons, that the child is that of the husband. For the purpose of the rule, the wife's adultery need not be proved in a criminal case. ... (Rule 131, Rules of Court). Whether or not respondent and her husband were separated would be immaterial to the resolution of the status of the child Rolando. What should really matter is the fact that during the initial one hundred twenty days of the three hundred which preceded the birth of the renamed child, no concrete or even substantial proof was presented to establish physical impossibility of access between respondent and her spouse. From her very revealing testimony, respondent declared that she was bringing two sacks of rice to Samal for her children; that her four children by her husband in her mother's house in the said town; that her alleged estranged husband also lived in her mother's place (p. 73, pp. 21 & 22, 64 & 65, t.s.n., Sept. 21, 1972). It should also be noted that even during her affair with petitioner and right after her delivery, respondent went to her mother's house in Samal for treatment. Thus, in the direct examination of Patrocinia Avila (the boy's yaya), the following came out: Q Why were you taking care of the child

Rolando, where was Elizabeth Mejias? A Because Elizabeth went to her parents in Same Davao del Norte for treatment because she had a relapse (p. 13, t.s.n., of Sept. 21, 1972). From the foregoing and since respondent and her husband continued to live in the same province, the fact remains that there was always the possibility of access to each other. As has already been pointed out, respondent's self-serving statements were never corroborated nor confirmed by any other evidence, more particularly that of her husband. The baby boy subject of this controversy was born on October 30, 1967, only seven (7) months after March, 1967 when the "incident" or first illicit intercourse between respondent and petitioner took place, and also, seven months from their separation (if there really was a separation). It must be noted that as of March, 1967, respondent and Crispin Anahaw had already four children; hence, they had been married years before such date (t.s.n., pp. 21-22, Sept. 21, 1972). The birth of Rolando came more than one hundred eighty 180 days following the celebration of the said marriage and before 300 days following the alleged separation between aforenamed spouses. Under the aforequoted Article 255 of the Civil Code, the child Rolando is conclusively presumed to be the legitimate son of respondent and her husband. The fact that the child was born a mere seven (7) months after the initial sexual contact between petitioner and respondent is another proof that the said child was not of petitioner since, from indications, he came out as a normal full-term baby. It must be stressed that the child under question has no birth certificate of Baptism (attached in the List of Exhibits) which was prepared in the absence of the alleged father [petitioner]. Note again that he was born on October 30, 1967. Between March, 1967 and October 30, 1967, the time difference is clearly 7 months. The baby Rolando could have been born prematurely. But such is not the case. Respondent underwent a normal nine-month pregnancy. Respondent herself and the yaya, Patrocinia Avila, declared that the baby was born in the rented house at Carpenter Street, which birth was obvisouly normal; that he was such a healthy baby that barely 5 days after his birth, he was already cared for by said yayawhen respondent became sick (pp. 28, 29 & 43, t.s.n., Sept. 21, 1972); and that when he was between 15 days and 2 months of age, respondent left him to the care of the yaya when the former left for Samal for treatment and returned only in February, 1968 (pp. 30-32, t.s.n., Sept. 21, 1972). From the aforestated facts, it can be indubitably said that the child was a full-term baby at birth, normally delivered, and raised normally by the yaya. If it were otherwise or if he were born prematurely, he would have needed special care like being placed in an incubator in a clinic

or hospital and attended to by a physician, not just a mere yaya. These all point to the fact that the baby who was born on October 30, 1967 or 7 months from the first sexual encounter between petitioner and respondent was conceived as early as January, 1967. How then could he be the child of petitioner? In Our jurisprudence, this Court has been more definite in its pronouncements on the value of baptismal certificates. It thus ruled that while baptismal and marriage certificates may be considered public documents, they are evidence only to prove the administration of the sacraments on the dates therein specified but not the veracity of the states or declarations made therein with respect to his kinsfolk and/or citizenship (Paa vs. Chan, L-25945, Oct. 31, 1967). Again, in the case ofFortus vs. Novero (L-22378, 23 SCRA 1331 [1968]), this Court held that a baptismal administered, in conformity with the rites of the Catholic Church by the priest who baptized the child, but it does not prove the veracity of the declarations and statements contained in the certificate that concern the relationship of the person baptized. Such declarations and statements, in order that their truth may be admitted, must indispensably be shown by proof recognized by law. The child Rolando is presumed to be the legitimate son of respondent and her spouse. This presumption becomes conclusive in the absence of proof that there was physical impossibility of access between the spouses in the first 120 days of the 300 which preceded the birth of the child. This presumption is actually quasi-conclusive and may be rebutted or refuted by only one evidence the physical impossibility of access between husband and wife within the first 120 days of the 300 which preceded the birth of the child. This physical impossibility of access may be caused by any of these: 1. Impotence of the husband; 2. Living separately in such a way that access was impossible and 3. Serious illness of the husband. This presumption of legitimacy is based on the assumption that there is sexual union in marriage, particularly during the period of conception. Hence, proof of the physical impossibility of such sexual union prevents the application of the presumption (Tolentino, Commentaries & Jurisprudence on the Civil Code, Vol. 1, p. 513 citing Bevilaqua, Familia p. 311). The modern rule is that, in order to overthrow the presumption of legitimacy, it must be shown beyond reasonable doubtthat there was no access as could have enabled the husband to be the father of the child. Sexual intercourse is to be presumed where personal access is not disproved, unless such presumption is rebutted by evidence to the contrary; where sexual intercourse is presumed or proved, the husband must be taken to be the father of the child (Tolentino, citing Madden, Persons and Domestic Relations, pp. 340341).

To defeat the presumption of legitimacy, therefore, there must be physical impossibility of access by the husband to the wife during the period of conception. The law expressly refers to physical impossibility. Hence, a circumstance which makes sexual relations improbable, cannot defeat the presumption of legitimacy; but it may be proved as a circumstance to corroborate proof of physical impossibility of access (Tolentino, citing Bonet 352; 4 Valverde 408). Impotence refers to the inability of the male organ to copulation, to perform its proper function (Bouvier's Law Dictionary 514). As defined in the celebrated case of Menciano vs. San Jose (89 Phil. 63), impotency is the physical inability to have sexual intercourse. It is not synonymous with sterility. Sterility refers to the inability to procreate, whereas, impotence refers to the physical inability to perform the act of sexual intercourse. In respect of the impotency of the husband of the mother of a child, to overcome the presumption of legitimacy on conception or birth in wedlock or to show illegitimacy, it has been held or recognized that the evidence or proof must be clear or satisfactory: clear, satisfactory and convincing, irresistible or positive (S.C. Tarleton vs. Thompson, 118 S.E. 421, 125 SC 182, cited in 10 C.J.S. 50). The separation between the spouses must be such as to make sexual access impossible. This may take place when they reside in different countries or provinces, and they have never been together during the period of conception (Estate of Benito Marcelo, 60 Phil. 442). Or, the husband may be in prison during the period of conception, unless it appears that sexual union took place through corrupt violation of or allowed by prison regulations (1 Manresa 492-500). The illness of the husband must be of such a nature as to exclude the possibility of his having sexual intercourse with his wife; such as, when because of a injury, he was placed in a plaster cast, and it was inconceivable to have sexual intercourse without the most severe pain (Tolentino, citing Commissioner vs. Hotel 256 App. Div. 352, 9 N.Y. Supp. p. 515); or the illness produced temporary or permanent impotence, making copulation impossible (Tolentino, citing Q. Bonet 352). Thus, in the case of Andal vs. Macaraig (89 Phil. 165), this Court ruled that just because tuberculosis is advanced in a man does not necessarily mean that he is incapable of sexual intercourse. There are cases where persons suffering from tuberculosis can do the carnal act even in the most crucial stage of health because then they seemed to be more inclined to sexual intercourse. The fact that the wife had illicit intercourse with a man other than her husband during the initial period, does not preclude cohabitation between said husband and wife. Significantly American courts have made definite pronouncements or rulings on the issues under consideration. The policy of the law is to confer legitimacy upon children born in wedlock when access of the husband at the time of conception was not impossible (N.Y. Milone vs. Milone, 290 N.Y. S. 863, 160

Misc. 830) and there is the presumption that a child so born is the child of the husband and is legitimate even though the wife was guilty of infidelity during the possible period of conception (N.Y. Dieterich vs. Dieterich, 278 N.Y. S. 645, Misc. 714; both cited in 10 C.J.S., pp. 18,19 & 20). So firm was this presumption originally that it cannot be rebutted unless the husband was incapable of procreation or was absent beyond the four seas, that is, absent from the realm, during the whole period of the wife's pregnancy (10 C.J.S. p. 20). The presumption of legitimacy of children born during wedlock obtains, notwithstanding the husband and wife voluntarily separate and live apart, unless the contrary is shown (Ala. Franks vs. State, 161 So. 549, 26 . App. 430) and this includes children born after the separation [10 C.J.S. pp. 23 & 24; emphasis supplied]. It must be stressed that Article 256 of the Civil Code which provides that the child is presumed legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress has been adopted for two solid reasons. First, in a fit of anger, or to arouse jealousy in the husband, the wife may have made this declaration (Power vs. State, 95 N.E., 660). Second, the article is established as a guaranty in favor of the children whose condition should not be under the mercy of the passions of their parents. The husband whose honor if offended, that is, being aware of his wife's adultery, may obtain from the guilty spouse by means of coercion, a confession against the legitimacy of the child which may really be only a confession of her guilt. Or the wife, out of vengeance and spite, may declare the as not her husband's although the statement be false. But there is another reason which is more powerful, demanding the exclusion of proof of confession or adultery, and it is, that at the moment of conception, it cannot be determined when a woman cohabits during the same period with two men, by whom the child was begotten, it being possible that it be the husband himself (Manresa, Vol. I, pp. 503-504). Hence, in general, good morals and public policy require that a mother should not be permitted to assert the illegitimacy of a child born in wedlock in order to obtain some benefit for herself (N.Y. Flint vs. Pierce, 136 N.Y. S. 1056, cited in 10 C.J.S. 77). The law is not willing that the child be declared illegitimate to suit the whims and purposes of either parent, nor Merely upon evidence that no actual act of sexual intercourse occurred between husband and wife at or about the time the wife became pregnant. Thus, where the husband denies having any intercourse with his wife, the child was still presumed legitimate (Lynn vs. State, 47 Ohio App. 158,191 N.E. 100). With respect to Article 257 aforequoted, it must be emphasized that adultery on the part of the wife, in itself, cannot destroy the presumption of legitimacy of her child, because it is still possible that the child is that of the husband (Tolentino, citing 1 Vera 170; 4 Borja 23-24).

It has, therefore, been held that the admission of the wife's testimony on the point would be unseemly and scandalous, not only because it reveals immoral conduct on her part, but also because of the effect it may have on the child, who is in no fault, but who nevertheless must be the chief sufferer thereby (7 Am. Jur. Sec. 21, pp. 641-642). In the case of a child born or conceived in wedlock, evidence of the infidelity or adultery of the wife and mother is not admissible to show illegitimacy, if there is no proof of the husband's impotency or non-access to his wife (Iowa Craven vs. Selway, 246 N.W. 821, cited in 10 C.J.S. 36). At this juncture, it must be pointed out that only the husband can contest the legitimacy of a child born to his wife. He is the one directly confronted with the scandal and ridicule which the infidelity of his wife produces; and he should decide whether to conceal that infidelity or expose it, in view of the moral or economic interest involved (Tolentino, citing Bevilaqua, Familia, p. 314). The right to repudiate or contest the legitimacy of a child born in wedlock belongs only to the alleged father, who is the husband of the mother and can be exercised only by him or his heirs, within a fixed time, and in certain cases, and only in a direct suit brought for the purpose (La Ducasse vs. Ducasse, 45 So. 565, 120 La. 731; Saloy's Succ. 10 So. 872, 44 La. Ann., cited in 10 C.J.S. 77; emphasis supplied). Thus the mother has no right to disavow a child because maternity is never uncertain; she can only contest the Identity of the child (La Eloi vs. Mader, 1 Rollo. 581, 38 Am. D. 192). Formerly, declarations of a wife that her husband was not the father of a child in wedlock were held to be admissible in evidence; but the general rule now is that they are inadmissible to bastardize the child, regardless of statutory provisions obviating incompetency on the ground of interest, or the fact that the conception was antenuptial. The rule is said to be founded in decency, morality and public policy (Wallace vs. Wallace 137 Iowa 37,114 N.W. 527,14 L.R.A. [N.S.] 544,126 Am. St. Rep. 253,15 Ann. Cas. 761, Am. Jur. 26). From the foregoing, particularly the testimony of respondent and her witnesses, this Court has every reason to believe that Crispin Anahaw was not actually separated from Elizabeth Mejias; that he was a very potent man, having had four children with his wife; that even if he and were even separately (which the latter failed to prove anyway) and assuming, for argument's sake, that they were really separated, there was the possibility of physical access to each other considering their proximity to each other and considering further that respondent still visited and recuperated in her mother's house in Samal where her spouse resided with her children. Moreover, Crispin Anahaw did not have any serious illness or any illness whatsoever which would have rendered him incapable of having sexual act with his wife. No substantial evidence

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

their children, and the validity of defense for any member of the family in case of unlawful aggression. WHEREFORE, THE DECISION OF THE COURT OF APPEALS DATED JUNE 2, 1978, AND ITS RESOLUTION DATED NOVEMBER 6, 1978 ARE HEREBY REVERSED AND SET ASIDE. COSTS AGAINST PRIVATE RESPONDENT. SO ORDERED. Teehankee (Chairman), Fernandez, Guerrero, De Castro and Melencio-Herrera, JJ., concur.