CONFLICTS | Feb 11| 1

G.R. No. L-11622 January 28, 1961

(1) 177 shares of stock of Canacao Estate
THE COLLECTOR OF INTERNAL REVENUE, petitioner, at P10.00 each 1,770.00
vs.
DOUGLAS FISHER AND BETTINA FISHER, and the COURT OF TAX
APPEALS, respondents.
(2) 210,000 shares of stock of Mindanao
x---------------------------------------------------------x Mother Lode Mines, Inc. at P0.38 per share 79,800.00

G.R. No. L-11668 January 28, 1961.

(3) Cash credit with Canacao Estate Inc. 4,870.88
DOUGLAS FISHER AND BETTINA FISHER, petitioner,
vs.
THE COLLECTOR OF INTERNAL REVENUE, and the COURT OF TAX
APPEALS, respondents. (4) Cash, with the Chartered Bank of India,
Australia & China 851.97
BARRERA, J.:

This case relates to the determination and settlement of the hereditary estate
left by the deceased Walter G. Stevenson, and the laws applicable thereto.
Walter G. Stevenson (born in the Philippines on August 9, 1874 of British
parents and married in the City of Manila on January 23, 1909 to Beatrice
Mauricia Stevenson another British subject) died on February 22, 1951 in San
Francisco, California, U.S.A. whereto he and his wife moved and established
their permanent residence since May 10, 1945. In his will executed in San
Francisco on May 22, 1947, and which was duly probated in the Superior
Court of California on April 11, 1951, Stevenson instituted his wife Beatrice
as his sole heiress to the following real and personal properties acquired by
the spouses while residing in the Philippines, described and preliminary
assessed as follows:
Gross Estate
Real Property 2 parcels of land in
Baguio, covered by T.C.T. Nos. 378 and 379 P43,500.00
Personal Property
Total Gross Assets P130,792.85
On May 22, 1951, ancillary administration proceedings were instituted in the
Court of First Instance of Manila for the settlement of the estate in the
Philippines. In due time Stevenson's will was duly admitted to probate by our
court and Ian Murray Statt was appointed ancillary administrator of the
estate, who on July 11, 1951, filed a preliminary estate and inheritance tax
return with the reservation of having the properties declared therein finally
appraised at their values six months after the death of Stevenson.
Preliminary return was made by the ancillary administrator in order to secure
the waiver of the Collector of Internal Revenue on the inheritance tax due on
the 210,000 shares of stock in the Mindanao Mother Lode Mines Inc. which
the estate then desired to dispose in the United States. Acting upon said
return, the Collector of Internal Revenue accepted the valuation of the
personal properties declared therein, but increased the appraisal of the two
parcels of land located in Baguio City by fixing their fair market value in the
amount of P52.200.00, instead of P43,500.00. After allowing the deductions
claimed by the ancillary administrator for funeral expenses in the amount of
P2,000.00 and for judicial and administration expenses in the sum of
P5,500.00, the Collector assessed the state the amount of P5,147.98 for
estate tax and P10,875,26 or inheritance tax, or a total of P16,023.23. Both
of these assessments were paid by the estate on June 6, 1952.
 CONFLICTS | Feb 11| 2

On September 27, 1952, the ancillary administrator filed in amended estate

and inheritance tax return in pursuance f his reservation made at the time of
Claims against the estate:
filing of the preliminary return and for the purpose of availing of the right
($5,000.00) P10,000.00 P10,000.00
granted by section 91 of the National Internal Revenue Code.

In this amended return the valuation of the 210,000 shares of stock in the
Mindanao Mother Lode Mines, Inc. was reduced from 0.38 per share, as Plus: 4% int. p.a. from Feb. 2 to 22,
originally declared, to P0.20 per share, or from a total valuation of 1951 22.47 10,022.47
P79,800.00 to P42,000.00. This change in price per share of stock was based
by the ancillary administrator on the market notation of the stock obtaining
at the San Francisco California) Stock Exchange six months from the death of
Stevenson, that is, As of August 22, 1931. In addition, the ancillary Sub-Total P21,365.88
administrator made claim for the following deductions:

In the meantime, on December 1, 1952, Beatrice Mauricia Stevenson

Funeral expenses ($1,04326) P2,086.52 assigned all her rights and interests in the estate to the spouses, Douglas
and Bettina Fisher, respondents herein.

On September 7, 1953, the ancillary administrator filed a second amended

Judicial Expenses:
estate and inheritance tax return (Exh. "M-N"). This return declared the same
assets of the estate stated in the amended return of September 22, 1952,
except that it contained new claims for additional exemption and deduction to
wit: (1) deduction in the amount of P4,000.00 from the gross estate of the
(a) Administrator's Fee P1,204.34
decedent as provided for in Section 861 (4) of the U.S. Federal Internal
Revenue Code which the ancillary administrator averred was allowable by
way of the reciprocity granted by Section 122 of the National Internal
Revenue Code, as then held by the Board of Tax Appeals in case No. 71
(b) Attorney's Fee 6.000.00
entitled "Housman vs. Collector," August 14, 1952; and (2) exemption from
the imposition of estate and inheritance taxes on the 210,000 shares of stock
in the Mindanao Mother Lode Mines, Inc. also pursuant to the reciprocity
proviso of Section 122 of the National Internal Revenue Code. In this last
(c) Judicial and Administration
return, the estate claimed that it was liable only for the amount of P525.34
expenses as of August 9, 1952 1,400.05
for estate tax and P238.06 for inheritance tax and that, as a consequence, it
had overpaid the government. The refund of the amount of P15,259.83,
allegedly overpaid, was accordingly requested by the estate. The Collector
denied the claim. For this reason, action was commenced in the Court of First
8,604.39
Instance of Manila by respondents, as assignees of Beatrice Mauricia
Stevenson, for the recovery of said amount. Pursuant to Republic Act No.
1125, the case was forwarded to the Court of Tax Appeals which court, after
Real Estate Tax for 1951 on Baguio hearing, rendered decision the dispositive portion of which reads as follows:
real properties (O.R. No. B-1
686836) 652.50 In fine, we are of the opinion and so hold that: (a) the one-half ()
share of the surviving spouse in the conjugal partnership property as
diminished by the obligations properly chargeable to such property
should be deducted from the net estate of the deceased Walter G.

Stevenson, pursuant to Section 89-C of the National Internal
Revenue Code; (b) the intangible personal property belonging to the
estate of said Stevenson is exempt from inheritance tax, pursuant to
the provision of section 122 of the National Internal Revenue Code in
relation to the California Inheritance Tax Law but decedent's estate is
not entitled to an exemption of P4,000.00 in the computation of the
estate tax; (c) for purposes of estate and inheritance taxation the
Baguio real estate of the spouses should be valued at P52,200.00,
and 210,000 shares of stock in the Mindanao Mother Lode Mines, Inc.
should be appraised at P0.38 per share; and (d) the estate shall be
entitled to a deduction of P2,000.00 for funeral expenses and judicial
expenses of P8,604.39.
From this decision, both parties appealed.
The Collector of Internal Revenue, hereinafter called petitioner assigned four
errors allegedly committed by the trial court, while the assignees, Douglas
and Bettina Fisher hereinafter called respondents, made six assignments of
error. Together, the assigned errors raise the following main issues for
resolution by this Court:
(1) Whether or not, in determining the taxable net estate of the decedent,
one-half () of the net estate should be deducted therefrom as the share of
tile surviving spouse in accordance with our law on conjugal partnership and
in relation to section 89 (c) of the National Internal revenue Code;
(2) Whether or not the estate can avail itself of the reciprocity proviso
embodied in Section 122 of the National Internal Revenue Code granting
exemption from the payment of estate and inheritance taxes on the 210,000
shares of stock in the Mindanao Mother Lode Mines Inc.;
(3) Whether or not the estate is entitled to the deduction of P4,000.00
allowed by Section 861, U.S. Internal Revenue Code in relation to section 122
of the National Internal Revenue Code;
(4) Whether or not the real estate properties of the decedent located in
Baguio City and the 210,000 shares of stock in the Mindanao Mother Lode
Mines, Inc., were correctly appraised by the lower court;
(5) Whether or not the estate is entitled to the following deductions:
P8,604.39 for judicial and administration expenses; P2,086.52 for funeral
expenses; P652.50 for real estate taxes; and P10,0,22.47 representing the
amount of indebtedness allegedly incurred by the decedent during his
lifetime; and
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(6) Whether or not the estate is entitled to the payment of interest on the
amount it claims to have overpaid the government and to be refundable to it.
In deciding the first issue, the lower court applied a well-known doctrine in
our civil law that in the absence of any ante-nuptial agreement, the
contracting parties are presumed to have adopted the system of conjugal
partnership as to the properties acquired during their marriage. The
application of this doctrine to the instant case is being disputed, however, by
petitioner Collector of Internal Revenue, who contends that pursuant to
Article 124 of the New Civil Code, the property relation of the spouses
Stevensons ought not to be determined by the Philippine law, but by the
national law of the decedent husband, in this case, the law of England. It is
alleged by petitioner that English laws do not recognize legal partnership
between spouses, and that what obtains in that jurisdiction is another regime
of property relation, wherein all properties acquired during the marriage
pertain and belong Exclusively to the husband. In further support of his
stand, petitioner cites Article 16 of the New Civil Code (Art. 10 of the old) to
the effect that in testate and intestate proceedings, the amount of
successional rights, among others, is to be determined by the national law of
the decedent.
In this connection, let it be noted that since the mariage of the Stevensons in
the Philippines took place in 1909, the applicable law is Article 1325 of the
old Civil Code and not Article 124 of the New Civil Code which became
effective only in 1950. It is true that both articles adhere to the so-called
nationality theory of determining the property relation of spouses where one
of them is a foreigner and they have made no prior agreement as to the
administration disposition, and ownership of their conjugal properties. In
such a case, the national law of the husband becomes the dominant law in
determining the property relation of the spouses. There is, however, a
difference between the two articles in that Article 124 1 of the new Civil Code
expressly provides that it shall be applicable regardless of whether the
marriage was celebrated in the Philippines or abroad while Article 1325 2 of
the old Civil Code is limited to marriages contracted in a foreign land.
It must be noted, however, that what has just been said refers to mixed
marriages between a Filipino citizen and a foreigner. In the instant case, both
spouses are foreigners who married in the Philippines. Manresa, 3 in his
Commentaries, has this to say on this point:
La regla establecida en el art. 1.315, se refiere a las capitulaciones
otorgadas en Espana y entre espanoles. El 1.325, a las celebradas en
el extranjero cuando alguno de los conyuges es espanol. En cuanto a
la regla procedente cuando dfeos extranjeros se casan en Espana, o
dos espanoles en el extranjero hay que atender en el primer caso a la
legislacion de pais a que aquellos pertenezean, y en el segundo, a las

reglas generales consignadas en los articulos 9 y 10 de nuestro
Codigo. (Emphasis supplied.)
If we adopt the view of Manresa, the law determinative of the property
relation of the Stevensons, married in 1909, would be the English law even if
the marriage was celebrated in the Philippines, both of them being
foreigners. But, as correctly observed by the Tax Court, the pertinent English
law that allegedly vests in the decedent husband full ownership of the
properties acquired during the marriage has not been proven by petitioner.
Except for a mere allegation in his answer, which is not sufficient, the record
is bereft of any evidence as to what English law says on the matter. In the
absence of proof, the Court is justified, therefore, in indulging in what
Wharton calls "processual presumption," in presuming that the law of
England on this matter is the same as our law.4
Nor do we believe petitioner can make use of Article 16 of the New Civil Code
(art. 10, old Civil Code) to bolster his stand. A reading of Article 10 of the old
Civil Code, which incidentally is the one applicable, shows that it does not
encompass or contemplate to govern the question of property relation
between spouses. Said article distinctly speaks of amount of successional
rights and this term, in speaks in our opinion, properly refers to the extent or
amount of property that each heir is legally entitled to inherit from the estate
available for distribution. It needs to be pointed out that the property
relation of spouses, as distinguished from their successional rights, is
governed differently by the specific and express provisions of Title VI,
Chapter I of our new Civil Code (Title III, Chapter I of the old Civil Code.)
We, therefore, find that the lower court correctly deducted the half of the
conjugal property in determining the hereditary estate left by the deceased
Stevenson.
On the second issue, petitioner disputes the action of the Tax Court in the
exempting the respondents from paying inheritance tax on the 210,000
shares of stock in the Mindanao Mother Lode Mines, Inc. in virtue of the
reciprocity proviso of Section 122 of the National Internal Revenue Code, in
relation to Section 13851 of the California Revenue and Taxation Code, on
the ground that: (1) the said proviso of the California Revenue and Taxation
Code has not been duly proven by the respondents; (2) the reciprocity
exemptions granted by section 122 of the National Internal Revenue Code
can only be availed of by residents of foreign countries and not of residents
of a state in the United States; and (3) there is no "total" reciprocity between
the Philippines and the state of California in that while the former exempts
payment of both estate and inheritance taxes on intangible personal
properties, the latter only exempts the payment of inheritance tax..
To prove the pertinent California law, Attorney Allison Gibbs, counsel for
herein respondents, testified that as an active member of the California Bar
CONFLICTS | Feb 11| 4
since 1931, he is familiar with the revenue and taxation laws of the State of
California. When asked by the lower court to state the pertinent California
law as regards exemption of intangible personal properties, the witness cited
article 4, section 13851 (a) and (b) of the California Internal and Revenue
Code as published in Derring's California Code, a publication of the Bancroft-
Whitney Company inc. And as part of his testimony, a full quotation of the
cited section was offered in evidence as Exhibits "V-2" by the respondents.
It is well-settled that foreign laws do not prove themselves in our jurisdiction
and our courts are not authorized to take judicial notice of them. 5 Like any
other fact, they must be alleged and proved.6
Section 41, Rule 123 of our Rules of Court prescribes the manner of proving
foreign laws before our tribunals. However, although we believe it desirable
that these laws be proved in accordance with said rule, we held in the case
of Willamette Iron and Steel Works v. Muzzal, 61 Phil. 471, that "a reading of
sections 300 and 301 of our Code of Civil Procedure (now section 41, Rule
123) will convince one that these sections do not exclude the presentation of
other competent evidence to prove the existence of a foreign law." In that
case, we considered the testimony of an attorney-at-law of San Francisco,
California who quoted verbatim a section of California Civil Code and who
stated that the same was in force at the time the obligations were
contracted, as sufficient evidence to establish the existence of said law. In
line with this view, we find no error, therefore, on the part of the Tax Court in
considering the pertinent California law as proved by respondents' witness.
We now take up the question of reciprocity in exemption from transfer or
death taxes, between the State of California and the Philippines.F
Section 122 of our National Internal Revenue Code, in pertinent part,
provides:
... And, provided, further, That no tax shall be collected under this
Title in respect of intangible personal property (a) if the decedent at
the time of his death was a resident of a foreign country which at the
time of his death did not impose a transfer of tax or death tax of any
character in respect of intangible personal property of citizens of the
Philippines not residing in that foreign country, or (b) if the laws of
the foreign country of which the decedent was a resident at the time
of his death allow a similar exemption from transfer taxes or death
taxes of every character in respect of intangible personal property
owned by citizens of the Philippines not residing in that foreign
country." (Emphasis supplied).
 CONFLICTS | Feb 11| 5

On the other hand, Section 13851 of the California Inheritance Tax Law,
insofar as pertinent, reads:.
"SEC. 13851, Intangibles of nonresident: Conditions. Intangible
personal property is exempt from the tax imposed by this part if the
decedent at the time of his death was a resident of a territory or
another State of the United States or of a foreign state or country
which then imposed a legacy, succession, or death tax in respect to
intangible personal property of its own residents, but either:.
(a) Did not impose a legacy, succession, or death tax of any
character in respect to intangible personal property of residents of
this State, or
(b) Had in its laws a reciprocal provision under which intangible
personal property of a non-resident was exempt from legacy,
succession, or death taxes of every character if the Territory or other
State of the United States or foreign state or country in which the
nonresident resided allowed a similar exemption in respect to
intangible personal property of residents of the Territory or State of
the United States or foreign state or country of residence of the
decedent." (Id.)
our law, under obligation to pay an estate tax? Upon the other hand, if we
exempt the Californian from paying the estate tax, we do not thereby entitle
a Filipino to be exempt from a similar estate tax in California because under
the Federal Law, which is equally enforceable in California he is bound to pay
the same, there being no reciprocity recognized in respect thereto. In both
instances, the Filipino citizen is always at a disadvantage. We do not believe
that our legislature has intended such an unfair situation to the detriment of
our own government and people. We, therefore, find and declare that the
lower court erred in exempting the estate in question from payment of the
inheritance tax.
We are not unaware of our ruling in the case of Collector of Internal Revenue
vs. Lara (G.R. Nos. L-9456 & L-9481, prom. January 6, 1958, 54 O.G. 2881)
exempting the estate of the deceased Hugo H. Miller from payment of the
inheritance tax imposed by the Collector of Internal Revenue. It will be
noted, however, that the issue of reciprocity between the pertinent provisions
of our tax law and that of the State of California was not there squarely
raised, and the ruling therein cannot control the determination of the case at
bar. Be that as it may, we now declare that in view of the express provisions
of both the Philippine and California laws that the exemption would apply
only if the law of the other grants an exemption from legacy, succession, or
death taxes of every character, there could not be partial reciprocity. It would
have to be total or none at all.

It is clear from both these quoted provisions that the reciprocity must be
With respect to the question of deduction or reduction in the amount of
total, that is, with respect to transfer or death taxes of any and every
P4,000.00 based on the U.S. Federal Estate Tax Law which is also being
character, in the case of the Philippine law, and to legacy, succession, or
claimed by respondents, we uphold and adhere to our ruling in the Lara case
death taxes of any and every character, in the case of the California law.
(supra) that the amount of $2,000.00 allowed under the Federal Estate Tax
Therefore, if any of the two states collects or imposes and does not exempt
Law is in the nature of a deduction and not of an exemption regarding which
any transfer, death, legacy, or succession tax of any character, the reciprocity
reciprocity cannot be claimed under the provision of Section 122 of our
does not work. This is the underlying principle of the reciprocity clauses in
National Internal Revenue Code. Nor is reciprocity authorized under the
both laws.
Federal Law. .

In the Philippines, upon the death of any citizen or resident, or non-resident

On the issue of the correctness of the appraisal of the two parcels of land
with properties therein, there are imposed upon his estate and its settlement,
situated in Baguio City, it is contended that their assessed values, as
both an estate and an inheritance tax. Under the laws of California, only
appearing in the tax rolls 6 months after the death of Stevenson, ought to
inheritance tax is imposed. On the other hand, the Federal Internal Revenue
have been considered by petitioner as their fair market value, pursuant to
Code imposes an estate tax on non-residents not citizens of the United
section 91 of the National Internal Revenue Code. It should be pointed out,
States,7 but does not provide for any exemption on the basis of reciprocity.
however, that in accordance with said proviso the properties are required to
Applying these laws in the manner the Court of Tax Appeals did in the instant
be appraised at their fair market value and the assessed value thereof shall
case, we will have a situation where a Californian, who is non-resident in the
be considered as the fair market value only when evidence to the contrary
Philippines but has intangible personal properties here, will the subject to the
has not been shown. After all review of the record, we are satisfied that such
payment of an estate tax, although exempt from the payment of the
evidence exists to justify the valuation made by petitioner which was
inheritance tax. This being the case, will a Filipino, non-resident of California,
sustained by the tax court, for as the tax court aptly observed:
but with intangible personal properties there, be entitled to the exemption
clause of the California law, since the Californian has not been exempted
from every character of legacy, succession, or death tax because he is, under
 CONFLICTS | Feb 11| 6

"The two parcels of land containing 36,264 square meters were right to have the properties of the estate declared at their fair market value
valued by the administrator of the estate in the Estate and as of six months from the time the decedent died..
Inheritance tax returns filed by him at P43,500.00 which is the
assessed value of said properties. On the other hand, defendant On the fifth issue, we shall consider the various deductions, from the
appraised the same at P52,200.00. It is of common knowledge, and allowance or disallowance of which by the Tax Court, both petitioner and
this Court can take judicial notice of it, that assessments for real respondents have appealed..
estate taxation purposes are very much lower than the true and fair
market value of the properties at a given time and place. In fact one
Petitioner, in this regard, contends that no evidence of record exists to
year after decedent's death or in 1952 the said properties were sold
support the allowance of the sum of P8,604.39 for the following expenses:.
for a price of P72,000.00 and there is no showing that special or
extraordinary circumstances caused the sudden increase from the
price of P43,500.00, if we were to accept this value as a fair and
reasonable one as of 1951. Even more, the counsel for plaintiffs 1) Administrator's fee P1,204.34
himself admitted in open court that he was willing to purchase the
said properties at P2.00 per square meter. In the light of these facts
we believe and therefore hold that the valuation of P52,200.00 of the
real estate in Baguio made by defendant is fair, reasonable and 2) Attorney's fee 6,000.00
justified in the premises." (Decision, p. 19).

In respect to the valuation of the 210,000 shares of stock in the Mindanao

Mother Lode Mines, Inc., (a domestic corporation), respondents contend that 3) Judicial and Administrative expenses 2,052.55
their value should be fixed on the basis of the market quotation obtaining at
the San Francisco (California) Stock Exchange, on the theory that the
certificates of stocks were then held in that place and registered with the said
stock exchange. We cannot agree with respondents' argument. The situs of Total Deductions P8,604.39
the shares of stock, for purposes of taxation, being located here in the
Philippines, as respondents themselves concede and considering that they
are sought to be taxed in this jurisdiction, consistent with the exercise of our
government's taxing authority, their fair market value should be taxed on the An examination of the record discloses, however, that the foregoing items
basis of the price prevailing in our country. were considered deductible by the Tax Court on the basis of their approval by
the probate court to which said expenses, we may presume, had also been
presented for consideration. It is to be supposed that the probate court would
Upon the other hand, we find merit in respondents' other contention that the
not have approved said items were they not supported by evidence
said shares of stock commanded a lesser value at the Manila Stock Exchange
presented by the estate. In allowing the items in question, the Tax Court had
six months after the death of Stevenson. Through Atty. Allison Gibbs,
before it the pertinent order of the probate court which was submitted in
respondents have shown that at that time a share of said stock was bid for at
evidence by respondents. (Exh. "AA-2", p. 100, record). As the Tax Court
only P.325 (p. 103, t.s.n.). Significantly, the testimony of Atty. Gibbs in this
said, it found no basis for departing from the findings of the probate court, as
respect has never been questioned nor refuted by petitioner either before
it must have been satisfied that those expenses were actually incurred.
this court or in the court below. In the absence of evidence to the contrary,
Under the circumstances, we see no ground to reverse this finding of fact
we are, therefore, constrained to reverse the Tax Court on this point and to
which, under Republic Act of California National Association, which it would
hold that the value of a share in the said mining company on August 22,
appear, that while still living, Walter G. Stevenson obtained we are not
1951 in the Philippine market was P.325 as claimed by respondents..
inclined to pass upon the claim of respondents in respect to the additional
amount of P86.52 for funeral expenses which was disapproved by the court a
It should be noted that the petitioner and the Tax Court valued each share of quo for lack of evidence.
stock of P.38 on the basis of the declaration made by the estate in its
preliminary return. Patently, this should not have been the case, in view of
In connection with the deduction of P652.50 representing the amount of
the fact that the ancillary administrator had reserved and availed of his legal
realty taxes paid in 1951 on the decedent's two parcels of land in Baguio City,

which respondents claim was disallowed by the Tax Court, we find that this
claim has in fact been allowed. What happened here, which a careful review
of the record will reveal, was that the Tax Court, in itemizing the liabilities of
the estate, viz:
1) Administrator's fee P1,204.34
2) Attorney's fee 6,000.00
3) Judicial and Administration expenses as of August
9, 1952 2,052.55
Total P9,256.89
added the P652.50 for realty taxes as a liability of the estate, to the
P1,400.05 for judicial and administration expenses approved by the court,
making a total of P2,052.55, exactly the same figure which was arrived at by
the Tax Court for judicial and administration expenses. Hence, the difference
between the total of P9,256.98 allowed by the Tax Court as deductions, and
the P8,604.39 as found by the probate court, which is P652.50, the same
amount allowed for realty taxes. An evident oversight has involuntarily been
made in omitting the P2,000.00 for funeral expenses in the final
computation. This amount has been expressly allowed by the lower court and
there is no reason why it should not be. .
We come now to the other claim of respondents that pursuant to section
89(b) (1) in relation to section 89(a) (1) (E) and section 89(d), National
Internal Revenue Code, the amount of P10,022.47 should have been allowed
the estate as a deduction, because it represented an indebtedness of the
decedent incurred during his lifetime. In support thereof, they offered in
evidence a duly certified claim, presented to the probate court in California
by the Bank of California National Association, which it would appear, that
while still living, Walter G. Stevenson obtained a loan of $5,000.00 secured
by pledge on 140,000 of his shares of stock in the Mindanao Mother Lode
Mines, Inc. (Exhs. "Q-Q4", pp. 53-59, record). The Tax Court disallowed this
item on the ground that the local probate court had not approved the same
as a valid claim against the estate and because it constituted an
CONFLICTS | Feb 11| 7
indebtedness in respect to intangible personal property which the Tax Court
held to be exempt from inheritance tax.
For two reasons, we uphold the action of the lower court in disallowing the
deduction.
Firstly, we believe that the approval of the Philippine probate court of this
particular indebtedness of the decedent is necessary. This is so although the
same, it is averred has been already admitted and approved by the
corresponding probate court in California, situs of the principal or domiciliary
administration. It is true that we have here in the Philippines only an ancillary
administration in this case, but, it has been held, the distinction between
domiciliary or principal administration and ancillary
administration serves only to distinguish one administration from the other,
for the two proceedings are separate and independent. 8 The reason for the
ancillary administration is that, a grant of administration does not ex proprio
vigore, have any effect beyond the limits of the country in which it was
granted. Hence, we have the requirement that before a will duly probated
outside of the Philippines can have effect here, it must first be proved and
allowed before our courts, in much the same manner as wills originally
presented for allowance therein.9 And the estate shall be administered under
letters testamentary, or letters of administration granted by the court, and
disposed of according to the will as probated, after payment of just debts and
expenses of administration.10 In other words, there is a regular
administration under the control of the court, where claims must be
presented and approved, and expenses of administration allowed before
deductions from the estate can be authorized. Otherwise, we would have the
actuations of our own probate court, in the settlement and distribution of the
estate situated here, subject to the proceedings before the foreign court over
which our courts have no control. We do not believe such a procedure is
countenanced or contemplated in the Rules of Court.
Another reason for the disallowance of this indebtedness as a deduction,
springs from the provisions of Section 89, letter (d), number (1), of the
National Internal Revenue Code which reads:
(d) Miscellaneous provisions (1) No deductions shall be allowed in
the case of a non-resident not a citizen of the Philippines unless the
executor, administrator or anyone of the heirs, as the case may be,
includes in the return required to be filed under section ninety-three
the value at the time of his death of that part of the gross estate of
the non-resident not situated in the Philippines."
In the case at bar, no such statement of the gross estate of the non-resident
Stevenson not situated in the Philippines appears in the three returns
submitted to the court or to the office of the petitioner Collector of Internal

Revenue. The purpose of this requirement is to enable the revenue officer to
determine how much of the indebtedness may be allowed to be deducted,
pursuant to (b), number (1) of the same section 89 of the Internal Revenue
Code which provides:
(b) Deductions allowed to non-resident estates. In the case of a
non-resident not a citizen of the Philippines, by deducting from the
value of that part of his gross estate which at the time of his death is
situated in the Philippines
(1) Expenses, losses, indebtedness, and taxes. That proportion of
the deductions specified in paragraph (1) of subjection (a) of this
section11 which the value of such part bears the value of his entire
gross estate wherever situated;"
In other words, the allowable deduction is only to the extent of the portion of
the indebtedness which is equivalent to the proportion that the estate in the
Philippines bears to the total estate wherever situated. Stated differently, if
the properties in the Philippines constitute but 1/5 of the entire assets
wherever situated, then only 1/5 of the indebtedness may be deducted. But
since, as heretofore adverted to, there is no statement of the value of the
estate situated outside the Philippines, no part of the indebtedness can be
allowed to be deducted, pursuant to Section 89, letter (d), number (1) of the
Internal Revenue Code.
For the reasons thus stated, we affirm the ruling of the lower court
disallowing the deduction of the alleged indebtedness in the sum of
P10,022.47.
In recapitulation, we hold and declare that:
(a) only the one-half (1/2) share of the decedent Stevenson in the
conjugal partnership property constitutes his hereditary estate
subject to the estate and inheritance taxes;
(b) the intangible personal property is not exempt from inheritance
tax, there existing no complete total reciprocity as required in section
122 of the National Internal Revenue Code, nor is the decedent's
estate entitled to an exemption of P4,000.00 in the computation of
the estate tax;
(c) for the purpose of the estate and inheritance taxes, the 210,000
shares of stock in the Mindanao Mother Lode Mines, Inc. are to be
appraised at P0.325 per share; and
CONFLICTS | Feb 11| 8
(d) the P2,000.00 for funeral expenses should be deducted in the
determination of the net asset of the deceased Stevenson.
In all other respects, the decision of the Court of Tax Appeals is affirmed.
Respondent's claim for interest on the amount allegedly overpaid, if any
actually results after a recomputation on the basis of this decision is hereby
denied in line with our recent decision in Collector of Internal Revenue v. St.
Paul's Hospital (G.R. No. L-12127, May 29, 1959) wherein we held that, "in
the absence of a statutory provision clearly or expressly directing or
authorizing such payment, and none has been cited by respondents, the
National Government cannot be required to pay interest."
WHEREFORE, as modified in the manner heretofore indicated, the judgment
of the lower court is hereby affirmed in all other respects not inconsistent
herewith. No costs. So ordered.
G.R. No. 142820 June 20, 2003
WOLFGANG O. ROEHR, petitioner,
vs.
MARIA CARMEN D. RODRIGUEZ, HON. JUDGE JOSEFINA GUEVARA-
SALONGA, Presiding Judge of Makati RTC, Branch 149, respondents.
QUISUMBING, J.:
At the core of the present controversy are issues of (a) grave abuse of
discretion allegedly committed by public respondent and (b) lack of
jurisdiction of the regional trial court, in matters that spring from a divorce
decree obtained abroad by petitioner.
In this special civil action for certiorari, petitioner assails (a) the order 1 dated
September 30, 1999 of public respondent Judge Josefina Guevara-Salonga,
Presiding Judge of Makati Regional Trial Court, 2 Branch 149, in Civil Case No.
96-1389 for declaration of nullity of marriage, and (b) the order 3 dated March
31, 2000 denying his motion for reconsideration. The assailed orders partially
set aside the trial courts order dismissing Civil Case No. 96-1389, for the

purpose of resolving issues relating to the property settlement of the spouses
and the custody of their children.
Petitioner Wolfgang O. Roehr, a German citizen and resident of Germany,
married private respondent Carmen Rodriguez, a Filipina, on December 11,
1980 in Hamburg, Germany. Their marriage was subsequently ratified on
February 14, 1981 in Tayasan, Negros Oriental. 4 Out of their union were born
Carolynne and Alexandra Kristine on November 18, 1981 and October 25,
1987, respectively.
On August 28, 1996, private respondent filed a petition 5 for declaration of
nullity of marriage before the Regional Trial Court (RTC) of Makati City. On
February 6, 1997, petitioner filed a motion to dismiss, 6 but it was denied by
the trial court in its order7 dated May 28, 1997.
On June 5, 1997, petitioner filed a motion for reconsideration, but was also
denied in an order8 dated August 13, 1997. On September 5, 1997, petitioner
filed a petition for certiorari with the Court of Appeals. On November 27,
1998, the appellate court denied the petition and remanded the case to the
RTC.
Meanwhile, petitioner obtained a decree of divorce from the Court of First
Instance of Hamburg-Blankenese, promulgated on December 16, 1997.
The decree provides in part:
[T]he Court of First Instance, Hamburg-Blankenese, Branch 513, has
ruled through Judge van Buiren of the Court of First Instance on the
basis of the oral proceedings held on 4 Nov. 1997:
The marriage of the Parties contracted on 11 December 1980 before
the Civil Registrar of Hamburg-Altona is hereby dissolved.
The parental custody for the children
Carolynne Roehr, born 18 November 1981
Alexandra Kristine Roehr, born on 25 October 1987
is granted to the father.
CONFLICTS | Feb 11| 9
The litigation expenses shall be assumed by the Parties. 9
In view of said decree, petitioner filed a Second Motion to Dismiss on May 20,
1999 on the ground that the trial court had no jurisdiction over the subject
matter of the action or suit as a decree of divorce had already been
promulgated dissolving the marriage of petitioner and private respondent.
On July 14, 1999, Judge Guevara-Salonga issued an order granting
petitioners motion to dismiss. Private respondent filed a Motion for Partial
Reconsideration, with a prayer that the case proceed for the purpose of
determining the issues of custody of children and the distribution of the
properties between petitioner and private respondent.
On August 18, 1999, an Opposition to the Motion for Partial Reconsideration
was filed by the petitioner on the ground that there is nothing to be done
anymore in the instant case as the marital tie between petitioner Wolfgang
Roehr and respondent Ma. Carmen D. Rodriguez had already been severed by
the decree of divorce promulgated by the Court of First Instance of Hamburg,
Germany on December 16, 1997 and in view of the fact that said decree of
divorce had already been recognized by the RTC in its order of July 14, 1999,
through the implementation of the mandate of Article 26 of the Family
Code,10 endowing the petitioner with the capacity to remarry under the
Philippine law.
On September 30, 1999, respondent judge issued the assailed order partially
setting aside her order dated July 14, 1999 for the purpose of tackling the
issues of property relations of the spouses as well as support and custody of
their children. The pertinent portion of said order provides:
Acting on the Motion for Partial Reconsideration of the Order dated
July 14, 1999 filed by petitioner thru counsel which was opposed by
respondent and considering that the second paragraph of Article 26
of the Family Code was included as an amendment thru Executive
Order 227, to avoid the absurd situation of a Filipino as being still
married to his or her alien spouse though the latter is no longer
married to the Filipino spouse because he/she had obtained a divorce
abroad which is recognized by his/her national law, and considering
further the effects of the termination of the marriage under Article 43
in relation to Article 50 and 52 of the same Code, which include the
dissolution of the property relations of the spouses, and the support
and custody of their children, the Order dismissing this case is

partially set aside with respect to these matters which may be
ventilated in this Court.
SO ORDERED.11 (Emphasis supplied.)
Petitioner filed a timely motion for reconsideration on October 19, 1999,
which was denied by respondent judge in an order dated March 31, 2000. 12
Petitioner ascribes lack of jurisdiction of the trial court and grave abuse of
discretion on the part of respondent judge. He cites as grounds for his
petition the following:
1. Partially setting aside the order dated July 14, 1999 dismissing the
instant case is not allowed by 1997 Rules of Civil Procedure. 13
2. Respondent Maria Carmen Rodriguez by her motion for Partial
Reconsideration had recognized and admitted the Divorce Decision
obtained by her ex-husband in Hamburg, Germany.14
3. There is nothing left to be tackled by the Honorable Court as there
are no conjugal assets alleged in the Petition for Annulment of
Marriage and in the Divorce petition, and the custody of the children
had already been awarded to Petitioner Wolfgang Roehr.15
Pertinent in this case before us are the following issues:
1. Whether or not respondent judge gravely abused her discretion in
issuing her order dated September 30, 1999, which partially modified
her order dated July 14, 1999; and
2. Whether or not respondent judge gravely abused her discretion
when she assumed and retained jurisdiction over the present case
despite the fact that petitioner has already obtained a divorce decree
from a German court.
On the first issue, petitioner asserts that the assailed order of respondent
judge is completely inconsistent with her previous order and is contrary to
Section 3, Rule 16, Rules of Civil Procedure, which provides:
CONFLICTS | Feb 11| 10
Sec. 3. Resolution of motion - After the hearing, the court may
dismiss the action or claim, deny the motion, or order the
amendment of the pleading.
The court shall not defer the resolution of the motion for the reason
that the ground relied upon is not indubitable.
In every case, the resolution shall state clearly and distinctly the
reasons therefor. (Emphasis supplied.)
Petitioner avers that a courts action on a motion is limited to dismissing the
action or claim, denying the motion, or ordering the amendment of the
pleading.
Private respondent, on her part, argues that the RTC can validly reconsider
its order dated July 14, 1999 because it had not yet attained finality, given
the timely filing of respondents motion for reconsideration.
Pertinent to this issue is Section 3 in relation to Section 7, Rule 37 of the
1997 Rules of Civil Procedure, which provides:
Sec. 3. Action upon motion for new trial or reconsideration.The trial
court may set aside the judgment or final order and grant a new trial,
upon such terms as may be just, or may deny the motion. If the
court finds that excessive damages have been awarded or that the
judgment or final order is contrary to the evidence or law, it may
amend such judgment or final order accordingly.
Sec. 7. Partial new trial or reconsideration.If the grounds for a
motion under this Rule appear to the court to affect the issues as to
only a part, or less than all of the matters in controversy, or only one,
or less than all, of the parties to it, the court may order a new trial or
grant reconsideration as to such issues if severable without
interfering with the judgment or final order upon the rest. (Emphasis
supplied.)
It is clear from the foregoing rules that a judge can order a partial
reconsideration of a case that has not yet attained finality. Considering that
private respondent filed a motion for reconsideration within the reglementary
period, the trial court's decision of July 14, 1999 can still be modified.

Moreover, in Saado v. Court of Appeals,16we held that the court could modify
or alter a judgment even after the same has become executory whenever
circumstances transpire rendering its decision unjust and inequitable, as
where certain facts and circumstances justifying or requiring such
modification or alteration transpired after the judgment has become final and
executory17 and when it becomes imperative in the higher interest of justice
or when supervening events warrant it. 18 In our view, there are even more
compelling reasons to do so when, as in this case, judgment has not yet
attained finality.
Anent the second issue, petitioner claims that respondent judge committed
grave abuse of discretion when she partially set aside her order dated July
14, 1999, despite the fact that petitioner has already obtained a divorce
decree from the Court of First Instance of Hamburg, Germany.
In Garcia v. Recio,19 Van Dorn v. Romillo, Jr.,20 and Llorente v. Court of
Appeals,21 we consistently held that a divorce obtained abroad by an alien
may be recognized in our jurisdiction, provided such decree is valid according
to the national law of the foreigner. Relevant to the present case is Pilapil v.
Ibay-Somera,22 where this Court specifically recognized the validity of a
divorce obtained by a German citizen in his country, the Federal Republic of
Germany. We held in Pilapil that a foreign divorce and its legal effects may be
recognized in the Philippines insofar as respondent is concerned in view of
the nationality principle in our civil law on the status of persons.
In this case, the divorce decree issued by the German court dated December
16, 1997 has not been challenged by either of the parties. In fact, save for
the issue of parental custody, even the trial court recognized said decree to
be valid and binding, thereby endowing private respondent the capacity to
remarry. Thus, the present controversy mainly relates to the award of the
custody of their two children, Carolynne and Alexandra Kristine, to petitioner.
As a general rule, divorce decrees obtained by foreigners in other countries
are recognizable in our jurisdiction, but the legal effects thereof, e.g. on
custody, care and support of the children, must still be determined by our
courts.23 Before our courts can give the effect of res judicata to a foreign
judgment, such as the award of custody to petitioner by the German court, it
must be shown that the parties opposed to the judgment had been given
ample opportunity to do so on grounds allowed under Rule 39, Section 50 of
the Rules of Court (now Rule 39, Section 48, 1997 Rules of Civil Procedure),
to wit:
CONFLICTS | Feb 11| 11
SEC. 50. Effect of foreign judgments. - The effect of a judgment of a
tribunal of a foreign country, having jurisdiction to pronounce the
judgment is as follows:
(a) In case of a judgment upon a specific thing, the judgment is
conclusive upon the title to the thing;
(b) In case of a judgment against a person, the judgment is
presumptive evidence of a right as between the parties and their
successors in interest by a subsequent title; but the judgment may
be repelled by evidence of a want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact.
It is essential that there should be an opportunity to challenge the foreign
judgment, in order for the court in this jurisdiction to properly determine its
efficacy. In this jurisdiction, our Rules of Court clearly provide that with
respect to actions in personam, as distinguished from actions in rem, a
foreign judgment merely constitutes prima facie evidence of the justness of
the claim of a party and, as such, is subject to proof to the contrary.24
In the present case, it cannot be said that private respondent was given the
opportunity to challenge the judgment of the German court so that there is
basis for declaring that judgment as res judicata with regard to the rights of
petitioner to have parental custody of their two children. The proceedings in
the German court were summary. As to what was the extent of private
respondents participation in the proceedings in the German court, the
records remain unclear. The divorce decree itself states that neither has she
commented on the proceedings 25 nor has she given her opinion to the Social
Services Office.26 Unlike petitioner who was represented by two lawyers,
private respondent had no counsel to assist her in said proceedings. 27 More
importantly, the divorce judgment was issued to petitioner by virtue of the
German Civil Code provision to the effect that when a couple lived separately
for three years, the marriage is deemed irrefutably dissolved. The decree did
not touch on the issue as to who the offending spouse was. Absent any
finding that private respondent is unfit to obtain custody of the children, the
trial court was correct in setting the issue for hearing to determine the issue
of parental custody, care, support and education mindful of the best interests
of the children. This is in consonance with the provision in the Child and
Youth Welfare Code that the childs welfare is always the paramount
consideration in all questions concerning his care and custody. 28
 CONFLICTS | Feb 11| 12

On the matter of property relations, petitioner asserts that public respondent

exceeded the bounds of her jurisdiction when she claimed cognizance of the
issue concerning property relations between petitioner and private
respondent. Private respondent herself has admitted in Par. 14 of her petition
for declaration of nullity of marriage dated August 26, 1996 filed with the RTC
of Makati, subject of this case, that: "[p]etitioner and respondent have not
acquired any conjugal or community property nor have they incurred any
debts during their marriage." 29 Herein petitioner did not contest this
averment. Basic is the rule that a court shall grant relief warranted by the
allegations and the proof.30 Given the factual admission by the parties in their
pleadings that there is no property to be accounted for, respondent judge has
no basis to assert jurisdiction in this case to resolve a matter no longer
deemed in controversy.

In sum, we find that respondent judge may proceed to determine the issue
regarding the custody of the two children born of the union between
petitioner and private respondent. Private respondent erred, however, in
claiming cognizance to settle the matter of property relations of the parties,
which is not at issue.

WHEREFORE, the orders of the Regional Trial Court of Makati, Branch 149,
issued on September 30, 1999 and March 31, 2000 are AFFIRMED with
MODIFICATION. We hereby declare that the trial court has jurisdiction over
the issue between the parties as to who has parental custody, including the
care, support and education of the children, namely Carolynne and Alexandra
Kristine Roehr. Let the records of this case be remanded promptly to the trial
court for continuation of appropriate proceedings. No pronouncement as to
costs.

SO ORDERED.

EN BANC
[G.R. No. L-6897. November 29, 1956.]
In the Matter of the Claim for Attorneys Fees. CLARO M. RECTO,
claimant-Appellee, vs. ESPERANZA P. DE HARDEN and FRED M.
HARDEN, Defendants-Appellants.
DECISION
CONCEPCION, J.:
This is an appeal taken by Esperanza P. de Harden and Fred M. Harden from
a decision of the Court of First Instance of Manila, the pertinent part of which
is of the following tenor:chanroblesvirtuallawlibrary.
The contingent fee to which the claimant is entitled under paragraph 3 of
the contract, Exhibit JJJ or 20, is 20% of P1,920,554.85 or the sum of
P384,110.97.
WHEREFORE, this Court hereby approves the recommendation of the
Commissioner with the above-stated modification, and finds that Attorney
Claro M. Recto is entitled to the sum of THREE HUNDRED EIGHTY-FOUR
THOUSAND ONE HUNDRED AND TEN PESOS AND NINETY-SEVEN CENTAVOS
(P384,110.97), representing 20% of Esperanza P. de Hardens share in the
conjugal properties owned by her and her husband, Fred M. Harden, as
contingent fee stipulated in paragraph 3 of the Contract of Professional
Services, Exhibit JJJ or 20, and the said Esperanza P. de Harden is hereby
ordered to pay the said amount above-stated. It appears that sometime in
July, 1941, Appellant, Mrs. Harden, and Appellee, Claro M. Recto, executed
the following:chanroblesvirtuallawlibrary
CONTRACT OF PROFESSIONAL SERVICES
KNOW ALL MEN BY THESE PRESENTS:chanroblesvirtuallawlibrary
That I, ESPERANZA PEREZ DE HARDEN, of age, married to Fred M. Harden,
and temporarily residing in the Philippines, with address at 534 Sales Street,
CONFLICTS | Feb 11| 13
Manila, have engaged the services of Attorney Claro M. Recto to appear and
act as my counsel in the action which I will file against my husband, Fred M.
Harden, for the purpose of securing an increase in the amount of support
being received by me from the conjugal partnership of myself and said Fred
M. Harden, and for the purpose likewise of protecting and preserving my
rights in the properties of the said conjugal partnership, in contemplation of
the divorce suit which I intent to file against him in the competent Court of
California and of the liquidation of the conjugal partnership between us, this
contract of services to be under the following
conditions:chanroblesvirtuallawlibrary
1. That in lieu of retainer fee, which under the circumstances I am not in a
position to pay, I hereby agree to pay Attorney Claro M. Recto, such payment
to be made monthly, during the pendency of the litigation and until the
termination of the same, twenty-five (25%) per cent of the total increase in
allowance or pension which may be awarded to me by the court over and
above the amount of P1,500.00 which I now receive monthly
from Defendant Fred M. Harden out of the funds of the conjugal
partnership; chan roblesvirtualawlibraryProvided, that should the case be
terminated or an amicable settlement thereof be arrived at by the parties
before the expiration of two years from the date of the filing of the complaint,
I shall continue to pay the said twenty-five (25%) per cent up to the end of
said period.
2. That the aforesaid monthly payments shall be in addition to whatever
amount may be adjudged by the court against the Defendant Fred M. Harden
or against the conjugal partnership by way of litis expense, that is, attorneys
fees chargeable as expenses of litigation.
3. That as full and complete satisfaction of the fees of Attorney Claro M.
Recto in connection with the case above referred to, and said case being for
the purposes aforestated, that is, to secure an increase in the amount of
support I now receive as well as to protect and preserve my rights and
interest in the properties of the conjugal partnership, in contemplation of
divorce and of the liquidation of said partnership, I hereby agree to pay said
Attorney Claro M. Recto twenty (20%) per cent of the value of the share and
participation which I may receive in the funds and properties of the said
conjugal partnership of myself and Defendant Fred M. Harden, as a result of
the liquidation thereof either by death, divorce, judicial separation,
compromise or by any means or method by virtue of which said partnership
is or may be liquidated.
4. All expenses in connection with the litigation are to be for my account,
but the same may be advanced by Attorney Claro M. Recto, to be reimbursed
to him either from the money which I receive by way of support or from the
funds of the conjugal partnership.
5. It is hereby understood that this contract includes the services of
Attorney Claro M. Recto in connection with the securing of the liquidation of

the properties and assets of the conjugal partnership of myself and Fred M.
Harden, upon dissolution of said partnership or for any other cause
mentioned in Paragraph (3) hereof.
IN WITNESS WHEREOF, I have signed these presents in the City _____ of
Manila, Philippines this _______ day of July, 1941.
s/ Esperanza P. de Harden
t/ ESPERANZA P. DE HARDEN
ACCEPTED:chanroblesvirtuallawlibrary
s/ Claro M. Recto
t/ CLARO M. RECTO
In compliance therewith, on July 12, 1941, the Appellee, as counsel for Mrs.
Harden, commenced Civil Case No. 59634 of the Court of First Instance of
Manila, entitled Esperanza P. de Harden vs. Fred M. Harden and Jose
Salumbides. In the complaint therein filed, it was prayed, among other
things:chanroblesvirtuallawlibrary (a) that Mrs. Harden be given the exclusive
administration of the business and all properties of the conjugal partnership
of Mr. and Mrs. Harden; chan roblesvirtualawlibrary(b) that, in the event of
denial of this prayer, the Defendants be ordered to inform her of everything
pertaining to the administration of said business and properties, as well as to
render accounts thereof and to permit her to examine the books and records
pertinent thereto; chan roblesvirtualawlibrary(c) that Mr. Harden be ordered
to account to Mrs. Harden, and to return to this jurisdiction, the sum of
P449,015.44 allegedly withdrawn by him from the Philippines or sent by him
to Hongkong on April 1, 1941; chan roblesvirtualawlibrary(d)
that Defendant Salumbides be ordered to account for all moneys, amounting
to P285,000.00, belonging to the business and assets of said conjugal
partnership and deposited by him in a safety box, either in his name, or in
that of Antonio Wilson, from January 23 to December 23, 1940; chan
roblesvirtualawlibrary(e) that the transfer, in the name of Salumbides, of
certain shares of stock, allegedly belonging to the conjugal partnership, be
rescinded and said Defendant ordered to transfer said shares of stock in the
name of Mrs. Harden or in that of Mr. and Mrs. Harden, should Mr. Harden be
allowed to continue as administrator of said partnership; chan
roblesvirtualawlibrary( f ) that the transfer, made by Mr. Harden and/or
by Defendant Salumbides, as his attorney-in-fact, of 36,000 shares of stock
of the Angelo Mining Company, to some residents of Hongkong, be rescinded
and said shares returned to the assets of the conjugal partnership and placed
in the name of Mr. and Mrs. Harden; chan roblesvirtualawlibrary(g) that the
monthly allowance of Mrs. Harden be increased from P1,500 to
P15,000; chan roblesvirtualawlibrary(h) that, pending final decision, Mr.
Harden be ordered to increase the allowance or pension of Mrs. Harden and
their daughter Sarah Elizabeth to P10,000 a month; chan
roblesvirtualawlibraryand (i) that a writ of preliminary injunction be issued
CONFLICTS | Feb 11| 14
restraining the Defendants from disposing of the assets of the conjugal
partnership in fraud of Mrs. Harden.
By an order dated July 12, 1941, the court authorized the issuance of said
writ, upon the filing of the corresponding bond. It appears that, pursuant to
an agreement submitted by both parties, and with a view to avoiding
unnecessary embarrassment, restraint or inconvenience in the financial
operations of the business enterprises affected by said writ of preliminary
injunction, the same was amended by an order dated July 19, 1941, in the
sense that.
cralaw without prejudicing in any way the rights of the parties in this case,
a separate bank account be established in the Chartered Bank of India,
Australia and China, of Manila, and all transactions in connection with the
aforesaid businesses passed through that account by Mr. Harden or his duly
authorized representative, who at present is Mr. Salumbides, without the
necessity of securing a particular order from this Court on each
occasion; chan roblesvirtualawlibrarythat the present funds in the Philippine
National Bank in the name of Plaza Lunch and Fred M. Harden be utilized for
the purpose of starting said special bank account in the Chartered Bank of
India, Australia and China; chan roblesvirtualawlibrarythat all income from
the aforesaid businesses be deposited in this special bank account and no
checks be drawn upon the same, except to pay the necessary overhead and
running expenses including purchases of tobacco, merchandise, etc., required
for the proper operation of said businesses; chan roblesvirtualawlibrarythat a
new set of books be opened by Mr. Harden or his duly authorized
representative covering all business transactions passed through said special
bank account and the same be opened for inspection by the Plaintiffs duly
authorized representative.
The order of injunction of July 12, 1941, is modified only to the above
extent, and in all other respects is maintained.
Subsequently, the Philippines was invaded by the Japanese and placed under
military occupation. Then came the liberation, in the course of which the
records of this case were destroyed. On October 23, 1946, said records were
reconstituted at the instance of Appellee herein. Thereafter, the proceedings
were resumed and, in due course, the Court of First Instance of Manila
rendered, on or about October 31, 1949, a decision the dispositive part of
which we quote:chanroblesvirtuallawlibrary
In view of the foregoing considerations, this court finds and so holds that
(a) Fred M. Harden abandoned his domicile of origin in New Jersey and
established a domicile of choice in Manila, Philippines, since 1901;
(b) The matrimonial domicile of Fred M. Harden and Esperanza P. de Harden
was established in Manila, Philippines, from the date of their marriage on
December 14, 1917;

(c) Since they did not execute any antenuptial contract before their
marriage, all the properties, real or personal, acquired by either or both of
them on and after December 14, 1917, up to the present, over and above
the sum of P20,000.00 representing Fred M. Hardens capital, are hereby
declared conjugal properties;
(d) The total amount of P1,944,794.37 representing deposits in safety
deposit boxes in the name of Jose Salumbides, the selling price of the house
in Los Angeles, California, and the pre-war and post-war remittances abroad
of Fred M. Harden, from which has already been deducted the sum of
P160,000.00 covering payments for deficiency Federal income taxes and
attorneys fees, both in the tax case and the present one, is hereby declared
chargeable to the share of Defendant Harden and deductible from whatever
participation he may still have in the said conjugal partnership upon the
liquidation thereof, upon his failure to return and deposit them in the name of
the Plaza Lunch with the Manila branch of the Chartered Bank of India,
Australia and China up to the time this decision shall become final;
(e) A conjugal lien be annotated in the original and owners duplicate of
Transfer Certificates of Title Nos. 24393, 52436 and 54911 of the Register of
Deeds of Manila and in Original Certificate of Title No. 2292 of Quezon
Province, and on all the certificates of shares belonging to said conjugal
partnership, as well as in the corresponding books of the companies or
corporations issuing them, whereby it will be made to appear that any
subsequent alienation or encumbrance of said properties by Fred M. Harden
alone or his representative without the consent of his wife will be deemed
fraudulent and subject to revocation or cancellation for being in fraud and
prejudicial to the right of Esperanza P. de Harden;
( f ) Within a period of fifteen (15) days after this decision shall have
become final, Fred M. Harden and Esperanza P. de Harden are hereby
ordered to execute a document to be approved by this court creating and
express active trust upon the remaining cash assets and income of the
conjugal partnership in the Philippines, whereby the Philippine Trust
Company, with offices in Manila, will act as trustee, subject to the right of
Fred M. Harden to receive therefrom the sum of P2,500,00 a month by way
of allowance and an equal amount for the Plaintiff as separate support and
maintenance;
(g) Within thirty (30) days after this decision shall have become final, Fred
M. Harden shall inform the Plaintiff of all the properties and businesses of the
conjugal partnership, be they in the Philippines or abroad, and render a true
and complete accounting of the earnings and profits thereof;
(h) The Plaintiff is entitled to litis expensae in the amount of P175,000.00
for services rendered by her counsel up to the rendition of this judgment,
which Fred M. Harden or the herein receiver is ordered to pay within a period
of fifteen (15) days after this decision has become final; chan
roblesvirtualawlibraryand
CONFLICTS | Feb 11| 15
(i) The writ of preliminary injunction of July 12, 1941, is hereby declared
permanent and the order of receivership of November 20, 1946, is hereby
maintained, but said auxiliary remedies will be automatically lifted upon the
conclusion of the annotation of the conjugal lien and the execution of the
deed of trust above mentioned. Without costs.
IT IS SO ORDERED.
The Defendants appealed from said decision to this Court, where the case
was docketed as case No. L-3687. While the appeal was thus pending before
us, herein Appellee filed a manifestation and a motion, both dated February
20, 1952. In said manifestation, Appellee stated that Mrs. Harden had
instructed him, by letter, to discontinue all proceedings relative to said
case, vacate all orders and judgments rendered therein, and abandon and
nullify all her claims to the conjugal partnership existing between her and Mr.
Harden, in accordance with several instruments dated January 29, 1952, and
executed without the knowledge, advise and consent of said Appellee, as
counsel for Mrs. Harden, whereby:chanroblesvirtuallawlibrary (1) Mr. and
Mrs. Harden had purportedly agreed to settle their differences in
consideration of the sum of $5,000 paid by Mr. Harden to Mrs. Harden, and a
monthly pension of P500 to be paid by him to her; chan
roblesvirtualawlibrary(2) Mr. Harden had created a trust fund of $20,000
from which said monthly pension of $500 would be taken; chan
roblesvirtualawlibraryand (3) Mr. and Mrs. Harden had mutually released and
forever discharged each other from all actions, debts, duties, accounts,
demands and claims to the conjugal partnership, in consideration of the sum
of $1. It was further asserted, in Appellees manifestation, that the purpose
of the said instruments, executed by Mr. and Mrs. Harden, was to defeat the
claim of the former for attorneys fees, for which reason, he prayed, in his
aforementioned motion, that
a) Pending the resolution of this motion, the receiver appointed herein be
authorized to continue holding the properties above mentioned in his custody
in order not to defeat the undersigneds inchoate lien on them;
b) A day set aside to receive the evidence of the undersigned and those of
the Plaintiff and the Defendant Fred M. Harden, in order to determine the
amount of fees due to the undersigned, by the appointment of a referee or
commissioner for the reception of such
c) After due hearing, the undersigned be declared entitled to the sum of
P400,000.00 as his fees for services rendered in behalf of the Plaintiff in this
case, under paragraph 3 of the contract, Annex A, and to that end a
charging lien therefore be established upon the properties above-mentioned;
d) And the receiver be ordered to pay to the undersigned the full amount of
the fees to which the latter is found to be entitled.
Counsel for the Defendants-Appellants, in turn, moved for the dismissal of
the case, to which Appellee objected. Acting upon the issues raised in such

motion for dismissal and in Appellees motion to establish and enforce his
charging lien, as counsel for Mrs. Harden, this Court issued on July 22, 1952,
a resolution the pertinent part of which reads:chanroblesvirtuallawlibrary
It will be seen from the above that the Defendants-Appellants pray for the
complete dismissal of the above entitled case without prejudice to the
annotation of the contingent claim of Attorney Claro M. Recto on the property
under receivership, other than the 368,553 shares of the Balatoc Mining
Company which belong to Fred M. Harden. On the other hand, Attorney Claro
M. Recto agrees to the lifting of the writ of preliminary injunction, the orders
of contempt and commitment, and all other interlocutory orders which were
issued in the course of this case, with the exception of the receivership, but
objects to the dismissal of the case on the ground that, since receivership is
merely an auxiliary remedy, the present case should be allowed to remain
pending for the purpose of maintaining the receivership to safeguard his right
to collect the fees that may be due him.
Attorney Claro M. Recto prays that a commissioner or referee be
immediately appointed by this Court to receive evidence in support of his
allegations as to his attorneys lien and its enforcement. Counsel for
the Defendants-Appellants does not object to this proceeding provided that
the restrictions set forth by him be observed. However, this Court does not
have the proper facilities for receiving evidence in order to determine the
amount of the fees claimed by Attorney Claro M. Recto, and it is deemed
advisable that this matter be determined by the Court of First Instance. This
is specially so considering the opposition to the claim of Attorney Claro M.
Recto filed by Attorney J. W. Ferrier, Sr. in behalf of Esperanza P. de Harden.
In view of the foregoing, the above entitled case is hereby remanded to the
court of origin in order to determine the amount of fees claimed by Attorney
Claro M. Recto in his motion dated February 20, 1952.
It is understood that, after said fees had been finally determined and paid,
this case will be completely dismissed as prayed for by the Defendants-
Appellants, without prejudice to considering the claim of the receiver for
compensation as stated in his urgent motion dated July 2, 1952. Pending the
determination of the amount of fees claimed by Attorney Claro M. Recto, the
writ of preliminary injunction, the orders of contempt and commitment, and
all interlocutory orders which were issued in the course of this case, are
hereby lifted and vacated, and with regard to the receivership, the same is
hereby dissolved, only with respect to the 368,553 shares of the Balatoc
Mining Company. As to the rest of the properties, the receivership shall be
maintained.
In compliance with said resolution, the records of this case were remanded to
the lower court, which, on September 2, 1952, designated a commissioner to
receive evidence on the amount of the fees collectible by herein Appellee and
to report thereon. After due hearing, said commissioner submitted, on
February 6, 1953, a report of about one hundred (100) pages of the printed
CONFLICTS | Feb 11| 16
record on appeal, setting forth, in detail, the evidence introduced by both
parties, and his findings of fact, with the following conclusion and
recommendation:chanroblesvirtuallawlibrary
Taking into consideration the value of the properties involved in this
litigation, the length of time in which claimant had handled the same for
Esperanza Harden, the volume and quality of the work performed, the
complicated legal questions involved, the responsibility assumed by the
claimant as counsel, his reputation in the bar, the difficulties encountered by
him while handling the same in which he had to work hard every inch of the
way because of the stiff oppositions filed by adverse counsel, the diligence he
employed not only in the preservation of the records in his possession during
the days of enemy occupation but also in the protection of the interests of
Esperanza Harden, his successful handling of said case and those cases
growing out of it which reached the Supreme Court, and the extra services
he rendered in her behalf in the tax and other court cases, the undersigned
Commissioner concludes that claimant is entitled to the full amount of 20%
of Esperanza Hardens share of the conjugal properties, as provided in
paragraph 3 of the Contract of Professional Services, Exhibit JJJ.
WHEREFORE, the undersigned Commissioner respectfully recommends that
Atty. Claro M. Recto be paid the equivalent amount of 20% of Esperanza P. de
Hardens share of the conjugal properties or the sum of P369,410.04 as his
contingent fee for services rendered in her behalf.
After appropriate proceedings, the lower court rendered a decision dated
April 30, 1953, adopting substantially said report of the commissioner, but
increasing the contingent fee of Appellee herein from P369,410.04, the sum
recommended in the report, to P384,110.97. Hence, this appeal taken by Mr.
and Mrs. Harden.
The first question for determination therein is the validity of the above-
quoted contract of services, which the Appellants assail as void, mainly, upon
the ground:chanroblesvirtuallawlibrary (1) that Mrs. Harden cannot bind the
conjugal partnership without her husbands consent; chan
roblesvirtualawlibrary(2) that Article 1491 of the Civil Code of the Philippines
in effect prohibits contingent fees; chan roblesvirtualawlibrary(3) that the
contract in question has for its purpose to secure a decree of divorce,
allegedly in violation of Articles 1305, 1352 and 1409 of the Civil Code of the
Philippines; chan roblesvirtualawlibraryand (4) that the terms of said contract
are harsh, inequitable and oppressive.
The first objection has no foundation in fact, for the contract in dispute does
not seek to bind the conjugal partnership. By virtue of said contract, Mrs.
Harden merely bound herself or assumed the personal obligation to
pay, by way of contingent fees, 20% of her share in said partnership. The
contract neither gives, nor purports to give, to the Appellee any right
whatsoever, personal or real, in and to her aforesaid share. The amount
thereof is simply a basis for the computation of said fees.

For the same reason, the second objection is, likewise, untenable. Moreover,
it has already been held that contingent fees are not prohibited in the
Philippines and are impliedly sanctioned by our Cannons (No. 13) of
Professional Ethics. (see, also, Ulanday vs. Manila Railroad Co., 45 Phil., 540,
554.) Such is, likewise, the rule in the United States (Legal Ethics by Henry
S. Drinker, p. 176).
cralaw in the United States, the great weight of authority recognizes the
validity of contracts for contingent fees, provided such contracts are not in
contravention of public policy, and it is only when the attorney has taken an
unfair or unreasonable advantage of his client that such a claim is
condemned. (See 5 Am. Jur. 359 et seq.; chan
roblesvirtualawlibraryBallentine, Law Dictionary, 2nd ed., p. 276.)
Needless to say, there is absolutely nothing in the records before us to show
that Appellee herein had, in any manner, taken an unfair or unreasonable
advantage of his client Mrs. Harden.
The third objection is not borne out, either by the language of the contract
between them, or by the intent of the parties thereto. Its purpose was not to
secure a divorce, or to facilitate or promote the procurement of a divorce. It
merely sought to protect the interest of Mrs. Harden in the conjugal
partnership, during the pendency of a divorce suit she intended to file in the
United States. What is more, inasmuch as Mr. and Mrs. Harden are
admittedly citizens of the United States, their status and the dissolution
thereof are governed pursuant to Article 9 of the Civil Code of Spain
(which was in force in the Philippines at the time of the execution of the
contract in question) and Article 15 of the Civil Code of the Philippines by
the laws of the United States, which sanction divorce. In short, the contract
of services, between Mrs. Harden and herein Appellee, is not contrary to law,
morals, good customs, public order or public policy.
The last objection is based upon principles of equity, but, pursuant thereto,
one who seeks equity must come with clean hands (Bastida, et al., vs. Dy
Buncio & Co., 93 Phil., 195; chan roblesvirtualawlibrary30 C.J. S. 475),
and Appellants have not done so, for the circumstances surrounding the case
show, to our satisfaction, that their aforementioned agreements, ostensibly
for the settlement of the differences between husband and wife, were made
for the purpose of circumventing or defeating the rights of herein Appellee,
under his above-quoted contract of services with Mrs. Harden. Indeed,
having secured a judgment in her favor, acknowledging her rights to the
assets of the conjugal partnership, which turned out to be worth almost
P4,000,000 in addition to litis expensae in the sum of P175,000, it is
inconceivable that Mrs. Harden would have waived such rights, as well as the
benefits of all orders and judgments in her favor, in consideration of the
paltry sum of $5,000 allegedly paid to her by Mr. Harden and the additional
sum of $20,000 to be paid by him in installments, at the rate of $500 a
month. In fact, no explanation has been given for this most unusual avowed
settlement between Mr. and Mrs. Harden. One cannot even consider the
CONFLICTS | Feb 11| 17
possibility of a reconciliation between the spouses, the same being
inconsistent with the monetary consideration for said alleged settlement.
What is more, the records show that the relations between said spouses
which were bad indeed, not only in July, 1941, when Mrs. Harden engaged
the services of the Appellee, but, even, before, for Mr. and Mrs. Harden were
separated since 1938 had worsened considerably thereafter, as evidence
by an action for divorce filed by Mr. Harden in New Jersey, in July 1948, upon
the ground of repeated acts of infidelity allegedly committed by Mrs. Harden
in 1940 and 1941.
Again, it appears that Appellee had rendered, under the contract in question,
the following services, for the benefit of Mrs.
Harden:chanroblesvirtuallawlibrary
1. He succeeded in defeating Defendants motion for the dissolution of the
writ of preliminary injunction, issued by the Court on July 12, 1941, and
amended on July 19, 1941.
2. On November 12, 1946, Appellee moved for the appointment of a
receiver, upon the ground that, despite said writ of preliminary injunction,
the Defendants had been disposing of the properties of the conjugal
partnership for the purpose of defrauding Mrs. Harden. After due hearing, the
court, by an order dated November 20, 1946, directed the appointment of
Abelardo Perez as receiver of said properties, upon the filing of a P10,000
bond. Defendants asked, on February 13, 1947, that the receivership be
suspended, or else, that they be allowed to file a bond for the discharge of
the receivership. Appellee replied objecting thereto, unless
the Defendants posted a P4,000,000 bond. Subsequently or on March 5,
1947, the Defendants sought a reconsideration of the order of November 20,
1946, and the discharge of the receiver. By an order dated March 21, 1947,
the Court authorized said discharged upon the filing, by the Defendants, of a
bond in the sum of P500,000, provided that Mr. Harden should bring back all
the 368,553 shares of the Balatoc Mining Co., in his name to the Philippines
for deposit with the Clerk of Court, or with the Chartered Bank of India,
Australia and China, at Manila cralaw
3. On motion of the Appellee dated March 4, 1947, the Court, by an order
dated April 5, 1947, directed Mr. Harden to remit to Mrs. Harden the sum of
$2,500, to be charged against her litis expensae. Upon similar motion, filed
by Appellee on or about April 26, 1947, the Court ordered Mr. Harden, on
May 13, 1947, to furnish Mrs. Harden the sum of $5,000, under the same
conditions.
4. On June 21, 1947, the Defendants instituted Civil Case No. G. R. No. L-
1499 of this Court, entitled Fred M. Harden and Jose Salumbides vs. Emilio
Pea, Abelardo Perez and Esperanza P. Harden for the purpose of annulling
and setting aside, by writ of certiorari, the aforementioned orders of the
lower court dated July 12, 1941, November 20, 1946, and April 5 and May
13, 1947, and to restrain, in the meantime, the enforcement thereof. After

appropriate proceedings, in the course of which Appellee appeared as counsel
for Mrs. Harden, and like counsel for the Petitioners therein, filed several
lengthy, detailed pleadings and memoranda, decision was rendered on
November 21, 1950, denying the writ of certiorari prayed for.
5. On or about September 9, 1947, Appellee filed a motion alleging that
despite the writ of preliminary injunction above mentioned,
the Defendants had, fraudulently and without judicial consent, remitted
abroad several sums of money aggregating P1,000,608.66, and praying that
Mr. Harden be ordered to return this sum to the Philippines, within a stated
period, said sum to be deposited with the account of the Plaza Lunch at the
Manila Branch of the Chartered Bank of India, Australia and China. Mr.
Harden objected to said motion. Appellee filed a rejoinder, to which Mr.
Harden replied. Appellee filed a rejoinder to the rejoinder. On October 7,
1947, the Court granted Appellees motion. Mr. Harden sought a
reconsideration, which was opposed by the Appellee on October 27, 1947,
and denied by an order dated November 13, 1947. Mr. Harden moved, on
November 18, 1947, for the suspension of this order, which was immediately
objected to by the Appellee and then denied by the Court.
6. Inasmuch as said order of November 13, 1947 had not been complied
with, Appellee filed on November 27, 1947, a motion praying that Mr. Harden
be declared in contempt of court and punished accordingly. Meanwhile, or on
November 24, 1947, Mr. Harden had instituted case G. R. No. L-1816 of this
Court against Hon. Emilio Pea, as Judge of the Court of First Instance of
Manila, and Mrs. Harden. In the petition therein filed, Mr. Harden applied for
a writ of certiorari annulling said orders of Judge Pea of October 7 and
November 13, 1947, and prayed that, pending disposition of the case, a writ
of preliminary injunction be issued restraining the Respondents therein from
enforcing said orders, particularly through contempt proceedings. Hence, the
lower court deferred action on the aforementioned motion of November 27,
1947. After due hearing, this Court, in a resolution dated February 12, 1948,
refused to issue the writ of preliminary injunction prayed for. Subsequently,
or on November 21, 1950, decision was rendered denying the petition for a
writ of certiorari.
7. Soon after the issuance of our resolution in said case G. R. No. 1816,
dated February 12, 1948, or to be exact on March 27, 1948, the lower court
issued an order directing Mr. Harden to comply, within five (5) days from
notice, with the order of October 7, 1947. On April 6, 1948, Appellee filed
with the lower court the corresponding formal charges against Mr. Harden for
contempt of court. After due hearing, Mr. Harden was, by an order of April
28, 1948, found guilty as charged and ordered confined until he complies
with the aforementioned orders of October 7, 1947 and March 27, 1948. On
motion of Mr. Harden, said order of April 28, 1948 was suspended until May
4, 1948, on which date he was arrested and placed in confinement at the
New Bilibid Prison, in Muntinglupa, Rizal. On July 10, 1948, he filed with this
Court a petition for a writ of habeas corpus against the Director of Prisons,
(G. R. No. L-2349, entitled Fred M. Harden vs. The Director of Prisons),
CONFLICTS | Feb 11| 18
which, in due course was denied in a decision promulgated on October 22,
1948.
8. During the military occupation of the Philippines by the Japanese,
the Appellee made representations with the Japanese Government to prevent
the commandeering of a business establishment belonging to Mr. and Mrs.
Harden. Moreover, he succeeded in persuading the Japanese to refrain from
interning Mrs. Harden and her daughter and to allow her to withdraw, from
the formers deposit in a local bank, from P200 to P250 a month, for their
subsistence. He, likewise, lent her money to meet her needs and spent the
sum of P55,000 in the preservation of the records and papers pertaining to
the business and other properties of the conjugal partnership of Mr. and Mrs.
Harden.
9. Appellee assisted, also, the receiver, as his counsel and, in such capacity,
took all steps essential for the proper discharge of the duties of the former.
Among other things, Appellee sought and obtained judicial authority for some
important acts of administration of, and disposition by, the receiver. He
(Appellee) secured judicial intervention for the protection and preservation of
the assets of the conjugal partnership, including orders for the delivery of
certificates of stock, the return thereof and/or its deposit with the clerk of
court. He, likewise, represented the receiver in seeking war damage
payments.
10. In civil case No. 6222 of the Court of First Instance of Manila, entitled
Francisco Dalupan vs. Fred M. Harden for the recovery of P113,837.17, it
was decided, through Appellees intervention, that the conjugal assets would
bear the payment of P22,767.43 only, the balance to be chargeable
exclusively against Mr. Hardens share of the conjugal partnership.
11. Appellee instituted civil case No. 6940 of the Court of First Instance of
Manila, entitled Abelardo Perez vs. Chartered Bank of India, Australia and
China and Fred M. Harden, for the recovery of P1,000,608.66 and the return
of stock certificates of the Balatoc Mining Co., which had been sent abroad.
12. He (Appellee) represented Mrs. Harden in connection with a million-peso
federal tax case against Mr. and Mrs. Harden.
13. Appellee successfully blocked Mr. Hardens attempts to
withdraw:chanroblesvirtuallawlibrary (1) $53,000 and forward the same to
the Collector of Internal Revenue of Los Angeles, California; chan
roblesvirtualawlibrary(2) $50,000.00, allegedly to defray expenses in
resisting a new tax assessment against him in the United States; chan
roblesvirtualawlibraryand (3) P65,000 for his expenses.
Then too, the conjugal partnership had varried and extensive business
interests and its assets were worth almost P4,000,000. The pleadings,
motions, oppositions, rejoinders, and memoranda filed, and the evidence
introduced, in the aforementioned cases in which Appellee was pitted
against one of the most experienced and able members of the Philippine Bar

were numerous, extensive and exhaustive. For instance, the record on
appeal in one of those cases, namely, G. R. No. L-3687, consisted of 966
pages.
In short, considering the character of the services rendered by the Appellee,
the nature and importance of the issues in said litigations, the amount of
labor, time (1941 to 1952) and trouble involved therein, the skill displayed in
connection with said cases, the value of the property affected by the
controversy, the professional character and standing of the Appellee, the
risks assumed and the results obtained, we are of the opinion, and so hold,
that the contract of services in question is neither harsh nor oppressive or
inequitable.
Under their second assignment of error, Appellants maintain
that:chanroblesvirtuallawlibrary
The lower court erred in failing to find as a fact borne out by the evidence
that the legal services of Attorney Claro M. Recto to Mrs. Esperanza P. de
Harden, payment, for which is sought by him in this case, have already been
paid by his immediate execution pending appeal of the decision in Civil Case
No. CFI-R-59634 (SC-G.R. No. L- 3687), wherein he collected the sum of
P176,000.00 for all such legal services.
Said decision, however, states clearly that the aforementioned sum of
P175,000 represents litis expensae, and the contract between
the Appellee and Mrs. Harden explicitly declares that said litis expensae shall
be in addition to Appellees share of 25% of the increase in the allowance of (Art. 1198, Civil Code.)
Mrs. Harden and his attorneys fees of 20% of her share in the conjugal
partnership. The second assignment of error is, therefore, devoid of merit.
Appellants, further contend, that:chanroblesvirtuallawlibrary
3. The lower court erred in holding that the inchoate share of the wife,
Esperanza P. de Harden, in the undissolved and unliquidated conjugal
partnership properties of the Harden spouses, is capable of certain valuation
before such dissolution and liquidation, and summarily assessing the value of
Mrs. Hardens share in such conjugal properties without proper evidence.
4. The lower court erred in awarding 20% of such inchoate share to
Attorney Claro M. Recto from Mrs. Hardens interests in the Harden conjugal
properties, summarily assessing such 20% inchoate share as of a value of
P384,110.97, and ordering the payment of said sum to Attorney Recto in
pursuance of the provisions of paragraph 3 of the Contract of Professional
Services.
Appellants arguments in support thereof may be summarized as
follows:chanroblesvirtuallawlibrary The contract of services in question
provides that Appellees contingent fees shall be 20% of the share of Mrs.
Harden in the conjugal partnership. Pursuant to law, the share of Mrs.
Harden shall be determined upon the liquidation of said partnership, which
has not taken place, as yet. What is more, it cannot be effected until the
CONFLICTS | Feb 11| 19
dissolution of the marriage relation between Mr. and Mrs. Harden. Inasmuch
as this relation subsists, it follows that the amount of attorneys fees due
to Appellee herein should not have been determined in the decision appealed
from.
This line of argument overlooks the fact that said contract of services was
made, principally, in contemplation of a suit for divorce that, according to
Mrs. Harden, she intended to file before a competent court in California, and
of the liquidation of the conjugal partnership between her and Mr. Harden.
Had she filed said action for divorce and secured a decree of divorce, said
conjugal partnership would have been dissolved and then liquidated, and the
share of Mrs. Harden therein would have been fixed. However, this cannot
take place, either now, or in the foreseeable future, owing to the
aforementioned agreements between Mr. and Mrs. Harden, which were made
for the evident purpose of defeating Appellees claim for attorneys fees. In
other words, the occurrence, within the time contemplated by the parties
bearing in mind the nature of, and the circumstances under which they
entered into, said contract of services of the event upon which the amount
of said fees depended, was rendered impossible by Mrs. Harden. Hence,
whether such event be regarded as a condition or as a period, she may not
insist upon its occurrence, prior to the enforcement of the rights of the
herein Appellee, for the condition shall be deemed fulfilled when the obligor
voluntarily prevents its fulfillment (Art. 1186, Civil Code) and the debtor
shall lose every right to make use of the period when he violates any
undertaking, in consideration of which the creditor agreed to the period.
It should be noted, also, that the compensation agreed upon for Appellees
services, consists of three (3) parts, namely:chanroblesvirtuallawlibrary (a)
25% of the increase in the allowance of Mrs. Harden; chan
roblesvirtualawlibrary(b) litis expensae; chan roblesvirtualawlibraryand (c)
20% of her share in the conjugal partnership. The first part was dealt with in
the first paragraph of their contract of services. The second and third parts
were the object of the second and third paragraphs, respectively. The first
paragraph limited the rights of Appellee thereunder to two (2) years, in the
event of termination of the case or amicable settlement thereof within two
(2) years from the filing of the complaint. No such limitation appears in the
second and third paragraphs of said contract. Hence, the same were intended
by the parties to be fully operative under any and all conditions.
It may not be amiss to add that the value of the properties involved has been
assessed, not summarily, but after due notice and full dress hearing, in the
course of which both parties introduced testimonial and documentary
evidence. Appellants presented Exhibits 1 to 58, whereas those of
the Appellee were so numerous that, having begun with Exhibit A, his last
piece of documentary evidence was marked Exhibit 26 Ys. The transcript of
the hearing, which lasted ten (10) days, covers over 220 pages.
 CONFLICTS | Feb 11| 20

The other assignments of error made by Appellants herein are mere

corollaries of those already disposed of, and, hence, no further discussion
thereof is necessary.
In conclusion, it appears that the assets of the conjugal partnership between
Mr. and Mrs. Harden are reasonably valued at P3,841,109.70. One-half (1/2)
thereof, representing the share of Mrs. Harden, is therefore, worth
P1,920,554.85. Twenty percentum (20%) of this sum is P384,110.97, which
is the contingent fee due to the Appellee, apart from the litis expensae
already paid to him. Inasmuch as the Appellee has collected, also, the sum of
P80,000.00, on account of said contingent fees, there results in his favor a
balance of P304,110.97.
Subject to this qualification, the decision appealed from is hereby affirmed,
therefore, with costs against the Appellants. SO ORDERED.
 CONFLICTS | Feb 11| 21

Vicenta's letters to Pastor, and his to her, before the marriage, indicate that
the couple were deeply in love. Together with a friend, Pacita Noel, their
matchmaker and go-between, they had planned out their marital future
whereby Pacita would be the governess of their first-born; they started
saving money in a piggy bank. A few weeks before their secret marriage,
their engagement was broken; Vicenta returned the engagement ring and
accepted another suitor, Joseling Lao. Her love for Pastor beckoned; she
pleaded for his return, and they reconciled. This time they planned to get
married and then elope. To facilitate the elopement, Vicenta had brought
some of her clothes to the room of Pacita Noel in St. Mary's Hall, which was
G.R. No. L-19671 November 29, 1965
their usual trysting place.

PASTOR B. TENCHAVEZ, plaintiff-appellant,

vs.
VICENTA F. ESCAO, ET AL., defendants-appellees.
I. V. Binamira & F. B. Barria for plaintiff-appellant.
Jalandoni & Jarnir for defendants-appellees.
REYES, J.B.L., J.:
Direct appeal, on factual and legal questions, from the judgment of the Court
of First Instance of Cebu, in its Civil Case No. R-4177, denying the claim of
the plaintiff-appellant, Pastor B. Tenchavez, for legal separation and one
million pesos in damages against his wife and parents-in-law, the
defendants-appellees, Vicente, Mamerto and Mena, 1 all surnamed "Escao,"
respectively.2
The facts, supported by the evidence of record, are the following:
Missing her late afternoon classes on 24 February 1948 in the University of
San Carlos, Cebu City, where she was then enrolled as a second year student
of commerce, Vicenta Escao, 27 years of age (scion of a well-to-do and
socially prominent Filipino family of Spanish ancestry and a "sheltered
colegiala"), exchanged marriage vows with Pastor Tenchavez, 32 years of
age, an engineer, ex-army officer and of undistinguished stock, without the
knowledge of her parents, before a Catholic chaplain, Lt. Moises Lavares, in
the house of one Juan Alburo in the said city. The marriage was the
culmination of a previous love affair and was duly registered with the local
civil register.
Although planned for the midnight following their marriage, the elopement
did not, however, materialize because when Vicente went back to her classes
after the marriage, her mother, who got wind of the intended nuptials, was
already waiting for her at the college. Vicenta was taken home where she
admitted that she had already married Pastor. Mamerto and Mena Escao
were surprised, because Pastor never asked for the hand of Vicente, and
were disgusted because of the great scandal that the clandestine marriage
would provoke (t.s.n., vol. III, pp. 1105-06). The following morning, the
Escao spouses sought priestly advice. Father Reynes suggested a
recelebration to validate what he believed to be an invalid marriage, from the
standpoint of the Church, due to the lack of authority from the Archbishop or
the parish priest for the officiating chaplain to celebrate the marriage. The
recelebration did not take place, because on 26 February 1948 Mamerto
Escao was handed by a maid, whose name he claims he does not
remember, a letter purportedly coming from San Carlos college students and
disclosing an amorous relationship between Pastor Tenchavez and Pacita
Noel; Vicenta translated the letter to her father, and thereafter would not
agree to a new marriage. Vicenta and Pastor met that day in the house of
Mrs. Pilar Mendezona. Thereafter, Vicenta continued living with her parents
while Pastor returned to his job in Manila. Her letter of 22 March 1948 (Exh.
"M"), while still solicitous of her husband's welfare, was not as endearing as
her previous letters when their love was aflame.
Vicenta was bred in Catholic ways but is of a changeable disposition, and
Pastor knew it. She fondly accepted her being called a "jellyfish." She was
not prevented by her parents from communicating with Pastor (Exh. "1-
Escao"), but her letters became less frequent as the days passed. As of
June, 1948 the newlyweds were already estranged (Exh. "2-Escao").
Vicenta had gone to Jimenez, Misamis Occidental, to escape from the scandal

that her marriage stirred in Cebu society. There, a lawyer filed for her a
petition, drafted by then Senator Emmanuel Pelaez, to annul her marriage.
She did not sign the petition (Exh. "B-5"). The case was dismissed without
prejudice because of her non-appearance at the hearing (Exh. "B-4").
On 24 June 1950, without informing her husband, she applied for a passport,
indicating in her application that she was single, that her purpose was to
study, and she was domiciled in Cebu City, and that she intended to return
after two years. The application was approved, and she left for the United
States. On 22 August 1950, she filed a verified complaint for divorce against
the herein plaintiff in the Second Judicial District Court of the State of Nevada
in and for the County of Washoe, on the ground of "extreme cruelty, entirely
mental in character." On 21 October 1950, a decree of divorce, "final and
absolute", was issued in open court by the said tribunal.
In 1951 Mamerto and Mena Escao filed a petition with the Archbishop of
Cebu to annul their daughter's marriage to Pastor (Exh. "D"). On 10
September 1954, Vicenta sought papal dispensation of her marriage (Exh.
"D"-2).
On 13 September 1954, Vicenta married an American, Russell Leo Moran, in
Nevada. She now lives with him in California, and, by him, has begotten
children. She acquired American citizenship on 8 August 1958.
But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a
complaint in the Court of First Instance of Cebu, and amended on 31 May
1956, against Vicenta F. Escao, her parents, Mamerto and Mena Escao,
whom he charged with having dissuaded and discouraged Vicenta from
joining her husband, and alienating her affections, and against the Roman
Catholic Church, for having, through its Diocesan Tribunal, decreed the
annulment of the marriage, and asked for legal separation and one million
pesos in damages. Vicenta claimed a valid divorce from plaintiff and an
equally valid marriage to her present husband, Russell Leo Moran; while her
parents denied that they had in any way influenced their daughter's acts, and
counterclaimed for moral damages.
The appealed judgment did not decree a legal separation, but freed the
plaintiff from supporting his wife and to acquire property to the exclusion of
his wife. It allowed the counterclaim of Mamerto Escao and Mena Escao for
moral and exemplary damages and attorney's fees against the plaintiff-
CONFLICTS | Feb 11| 22
appellant, to the extent of P45,000.00, and plaintiff resorted directly to this
Court.
The appellant ascribes, as errors of the trial court, the following:
1. In not declaring legal separation; in not holding defendant Vicenta
F. Escao liable for damages and in dismissing the complaint;.
2. In not holding the defendant parents Mamerto Escano and the
heirs of Doa Mena Escao liable for damages;.
3 In holding the plaintiff liable for and requiring him to pay the
damages to the defendant parents on their counterclaims; and.
4. In dismissing the complaint and in denying the relief sought by the
plaintiff.
That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the
defendant-appellee, Vicenta Escao, were validly married to each other, from
the standpoint of our civil law, is clearly established by the record before us.
Both parties were then above the age of majority, and otherwise qualified;
and both consented to the marriage, which was performed by a Catholic
priest (army chaplain Lavares) in the presence of competent witnesses. It is
nowhere shown that said priest was not duly authorized under civil law to
solemnize marriages.
The chaplain's alleged lack of ecclesiastical authorization from the parish
priest and the Ordinary, as required by Canon law, is irrelevant in our civil
law, not only because of the separation of Church and State but also because
Act 3613 of the Philippine Legislature (which was the marriage law in force at
the time) expressly provided that
SEC. 1. Essential requisites. Essential requisites for marriage are the
legal capacity of the contracting parties and consent. (Emphasis
supplied)
The actual authority of the solemnizing officer was thus only a formal
requirement, and, therefore, not essential to give the marriage civil
effects,3 and this is emphasized by section 27 of said marriage act, which
provided the following:

SEC. 27. Failure to comply with formal requirements. No marriage
shall be declared invalid because of the absence of one or several of
the formal requirements of this Act if, when it was performed, the
spouses or one of them believed in good faith that the person who
solemnized the marriage was actually empowered to do so, and that
the marriage was perfectly legal.
The good faith of all the parties to the marriage (and hence the validity of
their marriage) will be presumed until the contrary is positively proved (Lao
vs. Dee Tim, 45 Phil. 739, 745; Francisco vs. Jason, 60 Phil. 442, 448). It is
well to note here that in the case at bar, doubts as to the authority of the
solemnizing priest arose only after the marriage, when Vicenta's parents
consulted Father Reynes and the archbishop of Cebu. Moreover, the very act
of Vicenta in abandoning her original action for annulment and subsequently
suing for divorce implies an admission that her marriage to plaintiff was valid
and binding.
Defendant Vicenta Escao argues that when she contracted the marriage she
was under the undue influence of Pacita Noel, whom she charges to have
been in conspiracy with appellant Tenchavez. Even granting, for argument's
sake, the truth of that contention, and assuming that Vicenta's consent was
vitiated by fraud and undue influence, such vices did not render her
marriage ab initio void, but merely voidable, and the marriage remained valid
until annulled by a competent civil court. This was never done, and
admittedly, Vicenta's suit for annulment in the Court of First Instance of
Misamis was dismissed for non-prosecution.
It is equally clear from the record that the valid marriage between Pastor
Tenchavez and Vicenta Escao remained subsisting and undissolved under
Philippine law, notwithstanding the decree of absolute divorce that the wife
sought and obtained on 21 October 1950 from the Second Judicial District
Court of Washoe County, State of Nevada, on grounds of "extreme cruelty,
entirely mental in character." At the time the divorce decree was issued,
Vicenta Escao, like her husband, was still a Filipino citizen. 4 She was then
subject to Philippine law, and Article 15 of the Civil Code of the Philippines
(Rep. Act No. 386), already in force at the time, expressly provided:
Laws relating to family rights and duties or to the status, condition
and legal capacity of persons are binding upon the citizens of the
Philippines, even though living abroad.
CONFLICTS | Feb 11| 23
The Civil Code of the Philippines, now in force, does not admit absolute
divorce, quo ad vinculo matrimonii; and in fact does not even use that term,
to further emphasize its restrictive policy on the matter, in contrast to the
preceding legislation that admitted absolute divorce on grounds of adultery of
the wife or concubinage of the husband (Act 2710). Instead of divorce, the
present Civil Code only provides for legal separation (Title IV, Book 1, Arts.
97 to 108), and, even in that case, it expressly prescribes that "the marriage
bonds shall not be severed" (Art. 106, subpar. 1).
For the Philippine courts to recognize and give recognition or effect to a
foreign decree of absolute divorce betiveen Filipino citizens could be a patent
violation of the declared public policy of the state, specially in view of the
third paragraph of Article 17 of the Civil Code that prescribes the following:
Prohibitive laws concerning persons, their acts or property, and those
which have for their object public order, policy and good customs,
shall not be rendered ineffective by laws or judgments promulgated,
or by determinations or conventions agreed upon in a foreign
country.
Even more, the grant of effectivity in this jurisdiction to such foreign divorce
decrees would, in effect, give rise to an irritating and scandalous
discrimination in favor of wealthy citizens, to the detriment of those members
of our polity whose means do not permit them to sojourn abroad and obtain
absolute divorces outside the Philippines.
From this point of view, it is irrelevant that appellant Pastor Tenchavez should
have appeared in the Nevada divorce court. Primarily because the policy of
our law cannot be nullified by acts of private parties (Civil Code,Art. 17, jam
quot.); and additionally, because the mere appearance of a non-resident
consort cannot confer jurisdiction where the court originally had none (Area
vs. Javier, 95 Phil. 579).
From the preceding facts and considerations, there flows as a necessary
consequence that in this jurisdiction Vicenta Escao's divorce and second
marriage are not entitled to recognition as valid; for her previous union to
plaintiff Tenchavez must be declared to be existent and undissolved. It
follows, likewise, that her refusal to perform her wifely duties, and her denial
of consortium and her desertion of her husband constitute in law a wrong
caused through her fault, for which the husband is entitled to the
corresponding indemnity (Civil Code, Art. 2176). Neither an unsubstantiated

charge of deceit nor an anonymous letter charging immorality against the
husband constitute, contrary to her claim, adequate excuse. Wherefore, her
marriage and cohabitation with Russell Leo Moran is technically "intercourse
with a person not her husband" from the standpoint of Philippine Law, and
entitles plaintiff-appellant Tenchavez to a decree of "legal separation under
our law, on the basis of adultery" (Revised Penal Code, Art. 333).
The foregoing conclusions as to the untoward effect of a marriage after an
invalid divorce are in accord with the previous doctrines and rulings of this
court on the subject, particularly those that were rendered under our laws
prior to the approval of the absolute divorce act (Act 2710 of the Philippine
Legislature). As a matter of legal history, our statutes did not recognize
divorces a vinculo before 1917, when Act 2710 became effective; and the
present Civil Code of the Philippines, in disregarding absolute divorces, in
effect merely reverted to the policies on the subject prevailing before Act
2710. The rulings, therefore, under the Civil Code of 1889, prior to the Act
above-mentioned, are now, fully applicable. Of these, the decision in Ramirez
vs. Gmur, 42 Phil. 855, is of particular interest. Said this Court in that case:
As the divorce granted by the French Court must be ignored, it
results that the marriage of Dr. Mory and Leona Castro, celebrated in
London in 1905, could not legalize their relations; and the
circumstance that they afterwards passed for husband and wife in
Switzerland until her death is wholly without legal significance. The
claims of the very children to participate in the estate of Samuel
Bishop must therefore be rejected. The right to inherit is limited to
legitimate, legitimated and acknowledged natural children. The
children of adulterous relations are wholly excluded. The word
"descendants" as used in Article 941 of the Civil Code cannot be
interpreted to include illegitimates born of adulterous relations.
(Emphasis supplied)
Except for the fact that the successional rights of the children, begotten from
Vicenta's marriage to Leo Moran after the invalid divorce, are not involved in
the case at bar, the Gmur case is authority for the proposition that such
union is adulterous in this jurisdiction, and, therefore, justifies an action for
legal separation on the part of the innocent consort of the first marriage, that
stands undissolved in Philippine law. In not so declaring, the trial court
committed error.
CONFLICTS | Feb 11| 24
True it is that our ruling gives rise to anomalous situations where the status
of a person (whether divorced or not) would depend on the territory where
the question arises. Anomalies of this kind are not new in the Philippines, and
the answer to them was given in Barretto vs. Gonzales, 58 Phil. 667:
The hardship of the existing divorce laws in the Philippine Islands are
well known to the members of the Legislature. It is the duty of the
Courts to enforce the laws of divorce as written by Legislature if they
are constitutional. Courts have no right to say that such laws are too
strict or too liberal. (p. 72)
The appellant's first assignment of error is, therefore, sustained.
However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto
Escao and his wife, the late Doa Mena Escao, alienated the affections of
their daughter and influenced her conduct toward her husband are not
supported by credible evidence. The testimony of Pastor Tenchavez about the
Escao's animosity toward him strikes us to be merely conjecture and
exaggeration, and are belied by Pastor's own letters written before this suit
was begun (Exh. "2-Escao" and "Vicenta," Rec. on App., pp. 270-274). In
these letters he expressly apologized to the defendants for "misjudging
them" and for the "great unhappiness" caused by his "impulsive blunders"
and "sinful pride," "effrontery and audacity" [sic]. Plaintiff was admitted to
the Escao house to visit and court Vicenta, and the record shows nothing to
prove that he would not have been accepted to marry Vicente had he openly
asked for her hand, as good manners and breeding demanded. Even after
learning of the clandestine marriage, and despite their shock at such
unexpected event, the parents of Vicenta proposed and arranged that the
marriage be recelebrated in strict conformity with the canons of their religion
upon advice that the previous one was canonically defective. If no
recelebration of the marriage ceremony was had it was not due to defendants
Mamerto Escao and his wife, but to the refusal of Vicenta to proceed with it.
That the spouses Escao did not seek to compel or induce their daughter to
assent to the recelebration but respected her decision, or that they abided by
her resolve, does not constitute in law an alienation of affections. Neither
does the fact that Vicenta's parents sent her money while she was in the
United States; for it was natural that they should not wish their daughter to
live in penury even if they did not concur in her decision to divorce Tenchavez
(27 Am. Jur. 130-132).

There is no evidence that the parents of Vicenta, out of improper motives,
aided and abetted her original suit for annulment, or her subsequent divorce;
she appears to have acted independently, and being of age, she was entitled
to judge what was best for her and ask that her decisions be respected. Her
parents, in so doing, certainly cannot be charged with alienation of affections
in the absence of malice or unworthy motives, which have not been shown,
good faith being always presumed until the contrary is proved.
SEC. 529. Liability of Parents, Guardians or Kin. The law
distinguishes between the right of a parent to interest himself in the
marital affairs of his child and the absence of rights in a stranger to
intermeddle in such affairs. However, such distinction between the
liability of parents and that of strangers is only in regard to what will
justify interference. A parent isliable for alienation of affections
resulting from his own malicious conduct, as where he wrongfully
entices his son or daughter to leave his or her spouse, but he is not
liable unless he acts maliciously, without justification and from
unworthy motives. He is not liable where he acts and advises his
child in good faith with respect to his child's marital relations in the
interest of his child as he sees it, the marriage of his child not
terminating his right and liberty to interest himself in, and be
extremely solicitous for, his child's welfare and happiness, even
where his conduct and advice suggest or result in the separation of
the spouses or the obtaining of a divorce or annulment, or where he
acts under mistake or misinformation, or where his advice or
interference are indiscreet or unfortunate, although it has been held
that the parent is liable for consequences resulting from recklessness.
He may in good faith take his child into his home and afford him or
her protection and support, so long as he has not maliciously enticed
his child away, or does not maliciously entice or cause him or her to
stay away, from his or her spouse. This rule has more frequently
been applied in the case of advice given to a married daughter, but it
is equally applicable in the case of advice given to a son.
Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or
social discrimination and with having exerted efforts and pressured her to
seek annulment and divorce, unquestionably caused them unrest and
anxiety, entitling them to recover damages. While this suit may not have
been impelled by actual malice, the charges were certainly reckless in the
face of the proven facts and circumstances. Court actions are not established
for parties to give vent to their prejudices or spleen.
CONFLICTS | Feb 11| 25
In the assessment of the moral damages recoverable by appellant Pastor
Tenchavez from defendant Vicente Escao, it is proper to take into account,
against his patently unreasonable claim for a million pesos in damages, that
(a) the marriage was celebrated in secret, and its failure was not
characterized by publicity or undue humiliation on appellant's part; (b) that
the parties never lived together; and (c) that there is evidence that appellant
had originally agreed to the annulment of the marriage, although such a
promise was legally invalid, being against public policy (cf. Art. 88, Civ.
Code). While appellant is unable to remarry under our law, this fact is a
consequence of the indissoluble character of the union that appellant entered
into voluntarily and with open eyes rather than of her divorce and her second
marriage. All told, we are of the opinion that appellant should recover
P25,000 only by way of moral damages and attorney's fees.
With regard to the P45,000 damages awarded to the defendants, Dr.
Mamerto Escao and Mena Escao, by the court below, we opine that the
same are excessive. While the filing of this unfounded suit must have
wounded said defendants' feelings and caused them anxiety, the same could
in no way have seriously injured their reputation, or otherwise prejudiced
them, lawsuits having become a common occurrence in present society. What
is important, and has been correctly established in the decision of the court
below, is that said defendants were not guilty of any improper conduct in the
whole deplorable affair. This Court, therefore, reduces the damages awarded
to P5,000 only.
Summing up, the Court rules:
(1) That a foreign divorce between Filipino citizens, sought and decreed after
the effectivity of the present Civil Code (Rep. Act 386), is not entitled to
recognition as valid in this jurisdiction; and neither is the marriage contracted
with another party by the divorced consort, subsequently to the foreign
decree of divorce, entitled to validity in the country;
(2) That the remarriage of divorced wife and her co-habitation with a person
other than the lawful husband entitle the latter to a decree of legal
separation conformably to Philippine law;
(3) That the desertion and securing of an invalid divorce decree by one
consort entitles the other to recover damages;
 CONFLICTS | Feb 11| 26

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

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

(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal

separation from defendant Vicenta F. Escao;

(2) Sentencing defendant-appellee Vicenta Escao to pay plaintiff-appellant

Tenchavez the amount of P25,000 for damages and attorneys' fees;

(3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto

Escao and the estate of his wife, the deceased Mena Escao, P5,000 by way
of damages and attorneys' fees. G.R. No. L-6768 July 31, 1954

Neither party to recover costs. SALUD R. ARCA and ALFREDO JAVIER JR., plaintiffs-appellees,
vs.
ALFREDO JAVIER, defendant-appellant.

David F. Barrera for appellant.

Jose P. Santillan for appellees.

BAUTISTA ANGELO, J.:

Dissatisfied with the decision of the Court of First Instance of Cavite ordering
him to give a monthly allowance of P60 to plaintiffs beginning March 31,
1953, and to pay them attorney's fees in the amount of P150 defendant took
the case directly to this Court attributing five errors to the court below. This
implies that the facts are not disputed.

The important facts which need to be considered in relation to the errors

assigned appear well narrated in the decision of the court below which, for
purposes of this appeal, are quoted hereunder:

On November 19, 1937, plaintiff Salud R. Arca and defendant Alfredo

Javier had their marriage solemnized by Judge Mariano Nable of the
Municipal Court of Manila. At the time of their marriage, they had
already begotten a son named Alfredo Javier, Junior who was born on
December 2, 1931. Sometime in 1938, defendant Alfredo Javier left

for the United States on board a ship of the United States Navy, for it
appears that he had joined the United States Navy since 1927, such
that at time of his marriage with plaintiff Salud R. Arca, defendant
Alfredo Javier was already an enlisted man in the United States Navy.
Because of defendant Alfredo Javier's departure for the United States
in 1938, his wife, Salud R. Arca, who is from (Maragondon), Cavite,
chose to live with defendant's parents at Naic, Cavite. But for certain
incompatibility of character (frictions having occurred between
plaintiff Salud R. Arca's and defendant's folks) plaintiff Salud R. Arca
had found it necessary to leave defendant's parents' abode and
transfer her residence to (Maragondon), Cavite her native place
Since then the relation between plaintiff Salud R. Arca and defendant
Alfredo Javier became strained such that on August 13, 1940
defendant Alfredo Javier brought an action for divorce against Salud
R. Arca before the Circuit Court of Mobile County, State of Alabama,
USA, docketed as civil case No. 14313 of that court and marked as
Exhibit 2(c) in this case. Having received a copy of the complaint for
divorce on September 23, 1940, plaintiff Salud R. Arca answering
the complaint alleged in her answer that she received copy of the
complaint on September 23, 1940 although she was directed to file
her answer thereto on or before September 13, 1940. In that answer
she filed, plaintiff Salud R. Arca averred among other things that
defendant Alfredo Javier was not a resident of Mobile County, State of
Alabama, for the period of twelve months preceding the institution of
the complaint, but that he was a resident of Naic, Cavite, Philippines.
Another averment of interest, which is essential to relate here, is that
under paragraph 5 of her answer to the complaint for divorce, Salud
R. Arca alleged that it was not true that the cause of their separation
was desertion on her part but that if defendant Alfredo Javier was in
the United States at that time and she was not with him then it was
because he was in active duty as an enlisted man of the United
States Navy, as a consequence of which he had to leave for the
United States without her. She further alleged that since his
departure from the Philippines for the United States, he had always
supported her and her co-plaintiff Alfredo Javier Junior through
allotments made by the Navy Department of the United States
Government. She denied, furthermore, the allegation that she had
abandoned defendant's home at Naic, Cavite, and their separation
was due to physical impossibility for they were separated by about
10,000 miles from each other. At this juncture, under the old Civil
Code the wife is not bound to live with her husband if the latter has
CONFLICTS | Feb 11| 27
gone to ultra-marine colonies. Plaintiff Salud R. Arca, in her answer
to the complaint for divorce by defendant Alfredo Javier, prayed that
the complaint for divorce be dismissed. However, notwithstanding
Salud R. Arca's averments in her answer, contesting the jurisdiction
of the Circuit Court of Mobile County, State of Alabama, to take
cognizance of the divorce proceeding filed by defendant Alfredo
Javier, as shown by her answer marked Exhibit 2(d), nevertheless the
Circuit Court of Mobile County rendered judgment decreeing
dissolution of the marriage of Salud R. Arca and Alfredo Javier, and
granting the latter a decree of divorce dated April 9, 1941, a certified
copy of which is marked Exhibit 2(f). Thereupon, the evidence
discloses that some time in 1946 defendant Alfredo Javier returned to
the Philippines but went back to the United States.
In July, 1941 that is after securing a divorce from plaintiff Salud R.
Arca on April 9, 1941 defendant Alfredo Javier married Thelma
Francis, an American citizen, and bought a house and lot at 248
Brooklyn, New York City. In 1949, Thelma Francis, defendant's
American wife, obtained a divorce from him for reasons not disclosed
by the evidence, and, later on, having retired from the United States
Navy, defendant Alfredo Javier returned to the Philippines, arriving
here on February 13, 1950. After his arrival in the Philippines, armed
with two decrees of divorce one against his first wife Salud R. Arca
and the other against him by his second wife Thelma Francis
issued by the Circuit Court of Mobile County, State of Alabama, USA,
defendant Alfredo Javier married Maria Odvina before Judge
Natividad Almeda-Lopez of the Municipal Court of Manila on April 19,
1950, marked Exhibit 2(b).
At the instance of plaintiff Salud R. Arca an information for bigamy
was filed by the City Fiscal of Manila on July 25, 1950 against
defendant Alfredo Javier with the Court of First Instance of Manila,
docketed as Criminal Case No. 13310 and marked Exhibit 2(a).
However, defendant Alfredo Javier was acquitted of the charge of
Bigamy in a decision rendered by the Court of First Instance of Manila
through Judge Alejandro J. Panlilio, dated August 10, 1951,
predicated on the proposition that the marriage of defendant Alfredo
Javier with Maria Odvina was made in all good faith and in the honest
belief that his marriage with plaintiff Salud R. Arca had been legally
dissolved by the decree of divorce obtained by him from the Circuit
Court of Mobile County, State of Alabama, USA which had the legal

effect of dissolving the marital ties between defendant Alfredo Javier
and plaintiff Salud R. Arca. At this juncture, again, it is this court's
opinion that defendant Alfredo Javier's acquittal in that Criminal Case
No. 13310 of the Court of First Instance of Manila by Judge Panlilio
was due to the fact that the accused had no criminal intent in
contracting a second or subsequent marriage while his first marriage
was still subsisting.
Appellant was a native born citizen of the Philippines who, in 1937, married
Salud R. Arca, another Filipino citizen. Before their marriage they had already
a child, Alfredo Javier, Jr., who thereby became legitimated. In 1927 appellant
enlisted in the U.S. Navy and in 1938 sailed for the United States aboard a
navy ship in connection with his service leaving behind his wife and child, and
on August 13, 1940, he filed an action for divorce in the Circuit Court of
Mobile County, Alabama, U.S.A., alleging as ground abandonment by his wife.
Having received a copy of the complaint, Salud R. Arca filed an answer
alleging, among other things, that appellant was not a resident of Mobile
County, but of Naic, Cavite, Philippines, and that it was not true that the
cause of their separation was abandonment on her part but that appellant
was in the United States, without her, because he was then enlisted in the
U.S. Navy. Nevertheless, the Circuit Court of Mobile County rendered
judgment granting appellant a decree of divorce on April 9, 1941.
The issue now to be determined is: Does this decree have a valid effect in
this jurisdiction?
The issue is not new. This court has had already occasion to pass upon
questions of similar nature in a number of cases and its ruling has invariably
been to deny validity to the decree
It is true that Salud R. Arca filed an answer in the divorce case instituted at
the Mobile County in view of the summons served upon her in this
jurisdiction, but this action cannot be interpreted as placing her under the
jurisdiction of the court because its only purpose was to impugn the claim of
appellant that his domicile or legal residence at that time was Mobile County,
and to show that the ground of desertion imputed to her was baseless and
false. Such answer should be considered as a special appearance the purpose
of which is to impugn the jurisdiction of the court over the case.
In deciding the Canson case, this court did not overlook the other cases
previously decided on the matter, but precisely took good note of them.
CONFLICTS | Feb 11| 28
Among the cases invoked are Ramirez vs. Gmur, 42 Phil. 855; Cousins
Hix vs. Fluemer, 55 Phil., 851, and Barretto Gonzales vs. Gonzales, 58 Phil.,
67. In the cases just mentioned, this court laid down the following doctrines:
It is established by the great weight of authority that the court of a
country in which neither of the spouses is domiciled and to which one
or both of them may resort merely for the purpose of obtaining a
divorce has no jurisdiction to determine their matrimonial status; and
a divorce granted by such a court is not entitled to recognition
elsewhere. (See Note to Succession of Benton, 59 L. R. A., 143) The
voluntary appearance of the defendant before such a tribunal does
not invest the court with jurisdiction. (Andrews vs. Andrews, 188 U.
S., 14; 47 L. ed., 366.)
It follows that, to give a court jurisdiction on the ground of the
plaintiff's residence in the State or country of the judicial forum, his
residence must be bona fide. If a spouse leaves the family domicile
and goes to another State for the sole purpose of obtaining a divorce,
and with no intention of remaining, his residence there is not
sufficient to confer jurisdiction on the courts of the State. This is
especially true where the cause of divorce is one not recognized by
the laws of the State of his own domicile. (14 Cyc. 817, 181.)"
(Ramirez vs. Gmur, 82 Phil., 855.)
But even if his residence had been taken up is good faith, and the
court had acquired jurisdiction to take cognizance of the divorce suit,
the decree issued in his favor is not binding upon the appellant; for
the matrimonial domicile of the spouses being the City of Manila, and
no new domicile having been acquired in West Virginia, the summons
made by publication, she not having entered an appearance in the
case, either personally or by counsel, did not confer jurisdiction upon
said court over her person. (Cousins Hix vs. Fluemer, 55 Phil., 851.)
At all times the matrimonial domicile of this couple has been within
the Philippine Islands and the residence acquired in the State of
Nevada by the husband for the purpose of securing a divorce was not
a bona fide residence and did not confer jurisdiction upon the court of
the State to dissolve the bonds of matrimony in which he had entered
in 1919. (Barretto Gonzales vs. Gonzales, 58 Phil., 67.)

In the light of the foregoing authorities, it cannot therefore be said that the
Mobile County Court of Alabama had acquired jurisdiction over the case for
the simple reason that at the time it was filed appellant's legal residence was
then in the Philippines. He could not have acquired legal residence or
domicile at Mobile County when he moved to that place in 1938 because at
that time he was still in the service of the U.S. Navy and merely rented a
room where he used to stay during his occasional shore leave for shift duty.
That he never intended to live there permanently is shown by the fact that
after his marriage to Thelma Francis in 1941, he moved to New York where
he bought a house and a lot, and after his divorce from Thelma in 1949 and
his retirement from the U.S. Navy, he returned to the Philippines and married
Maria Odvina of Naic, Cavite, where he lived ever since. It may therefore be
said that appellant went to Mobile County, not with the intention of
permanently residing there, or of considering that place as his permanent
abode, but for the sole purpose of obtaining divorce from his wife. Such
residence is not sufficient to confer jurisdiction on the court.
It is claimed that the Canson case cannot be invoked as authority or
precedent in the present case for the reason that the Haddeck case which
was cited by the court in the course of the decision was reversed by the
Supreme Court of the United States in the case of Williams vs. North
Carolina, 317 U.S. 287. This claim is not quite correct, for the Haddeck case
was merely cited as authority for the statement that a divorce case is not a
proceeding in rem, and the reversal did not necessarily overrule the ruling
laid down therein that before a court may acquire jurisdiction over a divorce
case, it is necessary that plaintiff be domiciled in the State in which it is filed.
(Cousins Hix vs. Fluemer, supra.) At any rate, the applicability of the ruling in
the Canson case may be justified on another ground: The courts in the
Philippines can grant divorce only on the ground of adultery on the part of
the wife or concubinage on the part of the husband, and if the decree is
predicated on another ground, that decree cannot be enforced in this
jurisdiction. Said the Court in the Canson case:
. . . In Barretto Gonzales vs. Gonzales (55 Phil., 67), we observed:
. . . While the decisions of this court heretofore in refusing to
recognize the validity of foreign divorce has usually been expressed
in the negative and have been based upon lack of matrimonial
domicile or fraud or collusion, we have not overlooked the provisions
of the Civil Code now enforced in these Islands. Article 9 thereof
reads as follows:
CONFLICTS | Feb 11| 29
"The laws relating to family rights and duties, or to the status,
condition, and legal capacity of persons, are binding upon Spaniards
even though they reside in a foreign country."
"And Article 11, the last part of which reads
". . . prohibitive laws concerning persons, their acts and their
property, and those intended to promote public order and good
morals shall not be rendered without effect by any foreign laws or
judgments or by anything done or any agreements entered into a
foreign country."
"It is therefore a serious question whether any foreign divorce,
relating to citizens of the Philippine Islands, will be recognized in this
jurisdiction, except it be for a cause, and under conditions for which
the courts of the Philippine Islands would grant a divorce."
The courts in the Philippines can grant a divorce only on the ground
of "adultery on the part of the wife or concubinage on the part of the
husband" as provided for under section 1 of Act No. 2710. The
divorce decree in question was granted on the ground of desertion,
clearly not a cause for divorce under our laws. That our divorce law,
Act No. 2710, is too strict or too liberal is not for this court decide.
(Barretto Gonzales vs. Gonzales, supra). The allotment of powers
between the different governmental agencies restricts the judiciary
within the confines of interpretation, not of legislation. The legislative
policy on the matter of divorce in this jurisdiction is clearly set forth
in Act No. 2710 and has been upheld by this court (Goitia vs. Campos
Rueda, 35 Phil., 252; Garcia Valdez vs. Soterana Tuazon, 40 Phil.,
943-952; Ramirez vs. Gmur, 42 Phil., 855; Chereau vs. Fuentebella,
43 Phil., 216; Fernandez vs. De Castro, 48 Phil., 123; Gorayeb vs.
Hashim, supra; Francisco vs. Tayao, 50 Phil., 42; Alkuino Lim
Pang vs. Uy Pian Ng Shun and Lim Tingco, 52 Phil., 571; Cousins
Hix vs. Fluemer, supra; and Barretto Gonzales vs. Gonzales, supra).
The above pronouncement is sound as it is in keeping with the well known
principle of Private International Law which prohibits the extension of a
foreign judgment, or the law affecting the same, if it is contrary to the law or
fundamental policy of the State of the forum. (Minor, Conflict of Laws, pp. 8-
14). It is also in keeping with our concept or moral values which has always
looked upon marriage as an institution. And such concept has actually
 CONFLICTS | Feb 11| 30

crystallized in a more tangible manner when in the new Civil Code our
people, through Congress, decided to eliminate altogether our law relative to
divorce. Because of such concept we cannot but react adversely to any
attempt to extend here the effect of a decree which is not in consonance with
our customs, morals, and traditions. (Article 11, old Civil Code; Articles 15
and 17, new Civil Code; Gonzales vs. Gonzales, 58 Phil., 67.)

With regard to the plea of appellant that Salud R. Arca had accused him of
the crime of bigamy and consequently she forfeited her right to support, and
that her child Alfredo Javier, Jr. is not also entitled to support because he has
already reached his age of majority, we do not need to consider it here, it
appearing that these questions have already been passed upon in G. R. No.
L-6706.1 These questions were resolved against the pretense of appellant.

Wherefore, the decision appealed from is affirmed, with costs.

G.R. No. L-11796 August 5, 1918

In the matter of estate of Samuel Bischoff Werthmuller. ANA M.

RAMIREZ, executrix-appellant,
vs.
OTTO GMUR, as guardian of the minors Esther Renate Mory, Carmen
Maria Mory, and Leontina Elizabeth, claimant-appellant.

C. Lozano for executrix-appellant.
Thos. D. Aitken for claimant-appellant.
STREET, J.:
Samuel Bischoff Werthmuller, native of the Republic of Switzerland, but for
many years a resident of the Philippine Islands, died in the city of Iloilo on
June 29, 1913, leaving a valuable estate of which he disposed by will. A few
days after his demise the will was offered for probate in the Court of First
Instance of Iloilo and, upon publication of notice, was duly allowed and
established by the court. His widow, Doa Ana M. Ramirez, was named as
executrix in the will, and to her accordingly letters testamentary were issued.
By the will everything was given to the widow, with the exception of a piece
of real property located in the City of Thun, Switzerland, which was devised
to the testator's brothers and sisters.
The first cause of the will contains a statement to the effect that inasmuch as
the testator had no children from his marriage with Ana M. Ramirez he was
therefore devoid of forced heirs. In making this statement the testator
ignored the possible claims of two sets of children, born to his natural
daughter, Leona Castro.
The pertinent biographical facts concerning Leona Castro are these: As
appears from the original baptismal entry made in the church record of
Bacolod, she was born in that pueblo on April 11, 1875, her mother being
Felisa Castro, and father "unknown." Upon the margin of this record there is
written in Spanish an additional annotation of the following tenor: "According
to a public document (escritura) which was exhibited, she was recognized by
Samuel Bischoff on June 22, 1877." This annotation as well as the original
entry is authenticated by the signature of Father Ferrero, whose deposition
was taken in this case. He testifies that the work "escritura" in this entry
means a public document; and he says that such document was exhibited to
him when the marginal note which has been quoted was added to the
baptismal record and supplied the basis for the annotation in question.
As the years passed Leona Castro was taken into the family of Samuel
Bischoff and brought up by him and his wife a a member of the family; and it
is sufficiently shown by the evidence adduced in this case that Samuel
Bischoff tacitly recognized Leona a his daughter and treated her as such. In
the year 1895 Leona Castro was married to Frederick von Kauffman, a British
subject, born in Hong Kong, who had come to live in the city of Iloilo. Three
CONFLICTS | Feb 11| 31
children were born of this marriage, namely, Elena, Federico, and Ernesto,
the youngest having been born on November 10, 1898. In the month of April
1899, Leona Castro was taken by her husband from Iloilo to the City of Thun,
Switzerland, for the purpose of recuperating her health. She was there placed
in a sanitarium, and on August 20th the husband departed for the Philippine
Islands, where he arrived on October 10, 1899.
Leona Castro continued to remain in Switzerland, and a few years later
informed her husband, whom she had not seen again, that she desired to
remain free and would not resume life in common with him. As a
consequence, in the year 1904, Mr. Kauffman went to the City of Paris,
France, for the purpose of obtaining a divorce from his wife under the French
laws; and there is submitted in evidence in this case a certified copy of an
extract from the minutes of the Court of First Instance of the Department of
the Seine, from which it appears that a divorce was there decreed on January
5, 1905, in favor of Mr. Kauffman and against his wife, Leona, in default.
Though the record recites that Leona was then in fact residing at No. 6, Rue
Donizetti, Paris, there is no evidence that she had acquired a permanent
domicile in that city.
The estrangement between the von Kauffman spouses is explained by the
fact that Leona Castro had become attracted to Dr. Ernest Emil Mory, the
physician in charge of the sanatorium in Switzerland where she was originally
placed; and soon after the decree of divorce was entered, as aforesaid,
Doctor Mory and Leona Castro repaired to the City of London, England, and
on May 5, 1905, in the registrar's office in the district of Westminster, went
through the forms of a marriage ceremony before an officer duly qualified to
celebrate marriage under the English law. It appears that Doctor Mory
himself had been previously married to one Helena Wolpman, and had been
divorced from her; but how or under what circumstances this divorce had
been obtained does not appear.
Prior to the celebration of this ceremony of marriage a daughter, named
Leontina Elizabeth, had been born (July 21, 1900) to Doctor Mory and Leona
Castro, in Thun, Switzerland. On July 2, 1906, a second daughter, named
Carmen Maria, was born to them in Berne, Switzerland, now the place of
their abode; and on June 10, 1909, a third daughter was born, name Esther.
On October 6, 1910, the mother died.

In the present proceedings Otto Gmur has appeared as the guardian of the
three Mory claimants, while Frederick von Kauffman has appeared as the
guardian of his own three children, Elena, Federico, and Ernesto.
As will be surmised from the foregoing statement, the claims of both sets of
children are founded upon the contention that Leona Castro was the
recognized natural daughter of Samuel Bischoff and that as such she would,
if living, at the time of her father's death, have been a forced heir of his
estate and would have been entitled to participate therein to the extend of a
one-third interest. Ana M. Ramirez, as the widow of Samuel Bischoff and
residuary legatee under his will, insists at least as against the Mory
claimants, that Leona Castro had never been recognized at all by Samuel
Bischoff.
In behalf of Leontina, the oldest of the Mory claimants, it was originally
insisted in the court below, that, having been born while her mother still
passed as the wife of Frederick von Kauffman, she was to be considered as a
legitimate daughter of the wedded pair. This contention has been abandoned
on this appeal a untenable; and it is now contended here merely that, being
originally the illegitimate daughter of Doctor Mory and Leona Castro, she was
legitimated by their subsequent marriage.
In behalf of Carmen Maria and Esther Renate, the two younger of the Mory
claimants, it is argued that the bonds of matrimony which united Frederick
von Kauffman and Leona Castro were dissolved by the decree of divorce
granted by the Paris court on January 5, 1905; that the marriage ceremony
which was soon thereafter celebrated between Doctor Mory and Leona in
London was in all respects valid; and that therefore these claimants are to be
considered the legitimate offspring of their mother.
In behalf of the children of Frederick von Kauffman it is insisted that the
decree of divorce was wholly invalid, that all three of the Mory children are
the offspring of adulterous relations, and that the von Kauffman children, as
the legitimate offspring of Leona Castro, are alone entitled to participate in
the division of such part of the estate of Samuel Bischoff as would have been
inherited by their mother, if living.
We are of the opinion that the status of Leona Castro as recognized natural
daughter of Samuel Bischoff is fully and satisfactorily shown. It is proved that
prior to her marriage with Frederick von Kauffman she was in an
uninterrupted enjoyment of the de facto status of a natural child and was
CONFLICTS | Feb 11| 32
treated as such by Samuel Bischoff and his kindred. The proof of tacit
recognition is full and complete.
From the memorandum made by Padre Ferrero in the record of the birth, as
well as from the testimony of this priest, taken upon the deposition, it also
appears that Samuel Bischoff had executed a document, authenticated by a
notarial act, recognizing Leona as his daughter, that said document was
presented to the priest, as custodian of the church records, and upon the
faith of that document the marginal note was added to the baptismal record,
showing the fact of such recognition. The original document itself was not
produced in evidence but it is shown that diligent search was made to
discover its whereabouts, without avail. This was sufficient to justify the
introduction of secondary evidence concerning its contents; and the
testimony of the priest show that the fact of recognition was therein stated.
Furthermore, the memorandum in the baptismal record itself constitutes
original and substantive proof of the facts therein recited.
It will be observed that the recognition of Leona Castro as the daughter of
Samuel Bischoff occurred prior to the date when the Civil Code was put in
force in these Islands; and consequently her rights as derived from the
recognition must be determined under the law as it then existed, that is,
under Law 11 of Toro, which afterwards became Law 1, title 5, book 10, of
the Novisima Recopilacion. (See Capistrano vs. Estate of Gabino, 8 Phil., 135,
139, where this statute is quoted in the opinion written by Mr. Justice Torres.)
Under that law recognition could be established by proof of acts on the part
of the parent unequivocally recognizing the status of his offspring.
(Cosio vs. Pili, 10 Phil., 72, 77.) In other words at tacit recognition was
sufficient. Under article 131 of the present Civil Code, the acknowledgment of
a natural child must be made in the record of birth, by will, or in other public
instrument. We are of the opinion that the recognition of Leona Castro is
sufficiently shown whether the case be judged by the one provision or the
other.
But it is contended by counsel for Doa Ana Ramirez that only children born
of persons free to marry may possess the status of recognized natural
children, and there is no evidence to show that Felisa Catro was either a
single woman or widow at the time of the conception or birth of Leona. In the
absence of proof to the contrary, however, it must be presumed that she was
a single woman or a widow.

Relative to this presumption of the capacity of the parents to marry, the
author Sanchez Roman makes the following comment:
Furthermore, viewing the conception of natural child in connection
with two mutually interrelated circumstances, to wit, the freedom of
the parents to intermarry, with or without dispensation, at the time of
the conception of the offspring stigmatized as natural, the first of
these, or freedom to marry, is a point upon which there is, according
to the jurisprudence of our former law, whose spirit is maintained in
the Code, an affirmative presumption which places the burden of
proving the contrary upon those who are interested in impugning the
natural filiation. (Vol. 5, Derecho Civil, pp. 1018-1019.)
The contrary presumption would be that Felisa Castro was guilty of adultery,
which cannot be entertained. If such had in fact been the case, the burden of
proving it would have been upon the persons impugning the recognition of
the child by her father. (Sec. 334, par. 1, Code of Civil Procedure.)
From the fact that Leona Castro was an acknowledged natural daughter of
her father, it follows that had she survived him she would have been his
forced heir, he having died after the Civil Code took effect. (Civil Code, article
807 [3], art. 939; Civil Code, first transitory disposition); and as such forced
heir she would have been entitled to one-third of the inheritance (art. 842,
Civil Code).
With reference to the right of the von Kauffman children, it is enough to say
that they are legitimate children, born to their parents in lawful wedlock; and
they are therefore entitled to participate in the inheritance which would have
devolved upon their mother, if he had survived the testator.
As regards the Mory claimants, it is evident that their rights principally
depend upon the effect to be given by this court to the decree of divorce
granted to von Kauffman by the Court of First Instance of the City of Paris. If
this decree is valid, the subsequent marriage of Doctor Mory and Leona
Castro must also be conceded to be valid; and as a consequence the two
younger children, born after said marriage, would be the legitimate offspring
of their mother, and would be entitle to participate in their mother's portion
of Mr. Bischoff's estate. With respect to Leontina Elizabeth, the older one of
the Mory claimants, there would in the case still be the insuperable obstacle
which results from the fact that she was the offspring of adulterous
intercourse and a such was incapable of legitimation (art. 119, Civil Code).
CONFLICTS | Feb 11| 33
We are of the opinion that the decree of divorce upon which reliance is placed
by the representation of the Mory children cannot be recognized as valid in
the courts of the Philippine Islands. The French tribunal has no jurisdiction to
entertain an action for the dissolution of a marriage contracted in these
Islands by person domiciled here, such marriage being indissoluble under the
laws then prevailing in this country.
The evidence shows conclusively that Frederick von Kauffman at all times
since earliest youth has been, and is now, domiciled in the city of Iloilo in the
Philippine Islands; that he there married Leona Castro, who was a citizen of
the Philippine Islands, and that Iloilo was their matrimonial domicile; that his
departure from iloilo for the purpose of taking his wife to Switzerland was
limited to that purpose alone, without any intent to establish a domicile
elsewhere; and finally that he went to Paris in 1904, for the sole purpose of
getting a divorce, without any intention of establishing a permanent
residence in that city. The evidence shows that the decree was entered
against the defendant in default, for failure to answer, and there is nothing to
show that she had acquired, or had attempted to acquire, a permanent
domicile in the City of Paris. It is evident of course that the presence of both
the spouses in that city was due merely to the mutual desire to procure a
divorce from each other.
It is established by the great weight of authority that the court of a country
in which neither of the spouses is domiciled and to which one or both of them
may resort merely for the purpose of obtaining a divorce has no jurisdiction
to determine their matrimonial status; and a divorce granted by such a court
is not entitled to recognition elsewhere. (See Note to Succession of Benton,
59 L. R. A., 143.) The voluntary appearance of the defendant before such a
tribunal does not invest the court with jurisdiction. (Andrews vs. Andrews,
188 U. S., 14; 47 L. ed., 366.)
It follows that, to give a court jurisdiction on the ground of the plaintiff's
residence in the State or country of the judicial forum, his residence must
be bona fide. If a spouse leaves the family domicile and goes to another
State for the sole purpose of obtaining a divorce, and with no intention of
remaining, his residence there is not sufficient to confer jurisdiction on the
courts of that State. This is especially true where the cause of divorce is one
not recognized by the laws of the State of his own domicile. (14 Cyc., 817,
818.)

As have been well said by the Supreme Court of the United States marriage
is an institution in the maintenance of which in its purity the public is deeply
interested, for it is the foundation of the family and of society, without which
there could be neither civilization nor progress. (Maynard vs. Hill, 125 U. S.,
210; 31 L. ed., 659.) Until the adoption of Act No. 2710 by the Philippine
Legislature (March 11, 1917), it had been the law of these Islands that
marriage, validly contracted, could not be dissolved absolutely except by the
death of one of the parties; and such was the law in this jurisdiction at the
time when the divorce in question was procured. The Act to which we have
referred permits an absolute divorce to be granted where the wife has been
guilty of adultery or the husband of concubinage. The enactment of this
statute undoubtedly reflect a change in the policy of our laws upon the
subject of divorce, the exact effect and bearing of which need not be here
discussed. But inasmuch as the tenets of the Catholic Church absolutely deny
the validity of marriages where one of the parties is divorced, it is evident
that the recognition of a divorce obtained under the conditions revealed in
this case would be as repugnant to the moral sensibilities of our people as it
is contrary to the well-established rules of law.
As the divorce granted by the French court must be ignored, it results that
the marriage of Doctor Mory and Leona Castro, celebrated in London in 1905,
could not legalize their relations; and the circumstance that they afterwards
passed for husband and wife in Switzerland until her death is wholly without
legal significance. The claims of the Mory children to participate in the estate
of Samuel Bischoff must therefore be rejected. The right to inherit is limited
to legitimate, legitimated, and acknowledged natural children. The children of
adulterous relations are wholly excluded. The word "descendants," as used in
article 941 of the Civil Code cannot be interpreted to include illegitimates
born of adulterous relations.
An important question arises in connection with the time within which the
claims of the two sets of children were presented to the court. In this
connection it appears that the will of Samuel Bischoff was probated in
August, 1913. A committee on claims was appointed and it report was field
and accepted February 20, 1914. About the same time Otto Gmur entered an
appearance for the Mory claimants and petitioned the court to enter a decree
establishing their right to participate in the distribution of the estate. The
executrix, Doa Ana Ramirez, answered the petition denying that said minors
were the legitimate children of Leona Castro and further denying that the
latter was the recognized natural daughter of Samuel Bischoff. Upon the
issues thus presented a trial was had before the Honorable Fermin Mariano,
CONFLICTS | Feb 11| 34
and on December 29, 1915, he rendered a decision in which he held (1) that
Leona Castro was the recognized natural daughter of Samuel Bischoff; (2)
that the minor, Leontina Elizabeth, is a legitimate daughter of Leona Castro;
and (3) that the minors Carmen Maria and Esther Renate are illegitimate
children of Leona Castro.
From these facts the court drew the conclusion that Leontina Elizabeth was
entitled to one-third of the estate of the late Samuel Bischoff, and that his
widow, Doa Ana Ramirez, was entitled to the remaining two-thirds. From
this decision both Doa Ana Ramirez and Otto Gmur, as guardian, appealed.
Shortly after the appeals above-mentioned were taken, Mr. Frederick von
Kauffman made application to the Court of First Instance of Iloilo by petition
filed in the proceedings therein pending upon the estate of the late Samuel
Bischoff for appointment as guardian ad litem of his minor children, the von
Kauffman heirs, which petition was granted by order dated March 4, 1916.
Thereafter, on April 1, 1916, von Kauffman, on behalf of the said minors, filed
in the cause a petition setting forth their right to share in the estate. This
petition was answered by Mr. Otto Gmur, guardian, on April 26, 1916, the
sole contention of said answer being that the matter to which the petition
relates had been disposed of by the decision of the Court of First Instance
rendered in said proceedings by Judge Mariano on December 9, 1915. Doa
Ana Ramirez answered denying all the allegations of von Kauffman's petition.
The trial of the petition of von Kauffman, as guardian, came on for hearing
before the Court of First Instance of Iloilo on the 10th day of August, 1916.
Upon the evidence taken at that hearing the Honorable J. S. Powell, as judge
then presiding in the Court of First Instance of Iloilo, rendered a decision
under date of November 14, 1916, in which he found as a fact Leona Castro
was the acknowledged natural daughter of Samuel Bischoff and that the
minors, Elena, Fritz, and Ernesto, are the legitimate children of Frederick von
Kauffman and the said Leona Castro, born in lawful wedlock. Upon the facts
so found, Judge Powell based his conclusion that all that portion of the estate
of Samuel Bischoff pertaining to Leona Castro should be equally divided
among the children Federico, Ernesto, and Elena, thereby excluding by
inference the Mory claimants from all participation in the estate.
From this judgments an appeal was taken by Mr. Otto Gmur as guardian, no
appeal having taken by Doa Ama Ramirez.

Though the circumstance is now of no practical importance, it may be stated
in passing that the appeals of Doa Ana Ramirez and of Otto Gmur, guardian,
from the decision of Judge Mariano of December 9, 1915, and the appeal of
Otto Gmur, guardian from the decision of Judge Powell, of November 14,
1916, were brought to this court separately; but the causes were
subsequently consolidated and have been heard together. The parties to the
litigation have also stipulated that all the "evidence, stipulations and
admissions in each of the two proceedings above-mentioned may be
considered for all purposes by this court in the other." The case is therefore
considered here as though there had been but one trial below and all the
issues of law and fact arising from the contentions of the oppossing claimants
had been heard at the same time.
Upon the facts above stated it is insisted for Ana M. Ramirez that her rights
to the estate under the will of Samuel Bischoff were at the latest determined
by the final decree of December 29, 1915; and that it was thereafter
incompetent for the court to take cognizance of the application of the Mory
claimants. If this contention is sustainable, the same considerations would
operate to defeat the later application filed on behalf of the von Kauffman
children and indeed with even greater force, since this application was
not made until the appeals from the decree of December 9, 1915, had
actually been perfected and the cause had been transferred to the Supreme
Court.
Two questions are here involved, one as to the effect of the probate of a will
upon the rights of forced heirs who do not appear to contest the probate, and
the other as to the conclusiveness and finality of an order for the distribution
of an estate, as against persons who are not before the court.
Upon the first of these questions it is enough to say that the rights of forced
heirs to their legitime are not divested by the decree admitting a will to
probate, and this regardless of the fact that no provision has been made
for them in the will, for the decree of probate is conclusive only a regards the
due execution of the will, the question of its intrinsic validity not being
determined by such decree. (Code of Civil Procedure, sec. 625;
Castaeda vs. Alemany, 3 Phil., 426; Sahagun vs. De Gorostiza, 7 Phil., 347;
JocSoy vs. Vao, 8 Phil., 119; Limjuco vs. Ganara, 11 Phil., 393, 395;
Austria vs. Ventenilla, 21 Phil., 180.)
Indeed it is evident, under the express terms of the proviso to section 753 of
the Code of Civil Procedure, that the forced heirs cannot be prejudiced by the
CONFLICTS | Feb 11| 35
failure of the testator to provide for them in his will; and regardless of the
intention of the testator to leave all his property, or practically all of it, to his
wife, the will is intrinsically invalid so far a it would operate to cut off their
rights.
The question as to the conclusiveness of the order of distribution can best be
considered with reference to the von Kauffman children, as the solution of
the problem as to them necessarily involves the disposition of the question as
to the Mory claimants.
It is evident that the von Kauffman children cannot be considered to have
been in any sense parties to the proceeding at the time Judge Mariano
rendered his decision. So far a the record shows the court was then unaware
even of their existence. No notice of any kind was served upon them; nor
was any person then before the court authorized to act in their behalf.
Nevertheless, as we have already shown, upon the death of Samuel Bischoff,
the right to participate in his estate vested immediately in this children, to
the extent to which their mother would have been entitled to participate had
she survived her father. If the right vested upon the death of Samuel
Bischoff, how has it been since divested?
The record shows that the decision of December 29, 1915, in which Judge
Mariano holds that the estate should be divided between Leontina Elizabeth
and the residuary legatee Doa Ana Ramirez, was made without publication
of notice, or service of any kind upon other persons who might consider
themselves entitled to participate in the estate.
The law in force in the Philippine Islands regarding the distribution of estates
of deceased persons is to be found in section 753 et seq., of the Code of Civil
Procedure. In general terms the law is that after the payment of the debts
and expenses of administration the court shall distribute the residue of the
estate among the persons who are entitled to receive it, whether by the
terms of the will or by operation of law. It will be noted that while the law
(sec. 754) provides that the order of distribution may be had upon the
application of the executor or administrator, or of a person interested in the
estate, no provision is made for notice, by publication or otherwise, of such
application. The proceeding, therefore, is to all intents and purposes ex
parte. A will be seen our law is very vague and incomplete; and certainly it
cannot be held that a purely ex parte proceeding, had without notice by
personal service or by publication, by which the court undertakes to
 CONFLICTS | Feb 11| 36

distribute the property of deceased persons, can be conclusive upon minor

heirs who are not represented therein.
G.R. No. L-20530 June 29, 1967
Section 41 of the Code of Civil Procedure provides that ten years actual
adverse possession by "occupancy, grant, descent, or otherwise' shall vest MANILA SURETY and FIDELITY COMPANY, INC., petitioner,
title in the possessor. This would indicate that a decree of distribution under vs.
which one may be placed in possession of land acquired by descent, is not in TRINIDAD TEODORO and THE COURT OF APPEALS, respondents.
itself conclusive, and that, a held in Layre vs. Pasco (5 Rob. [La.], 9), the
action of revindication may be brought by the heir against the persons put in De Santos and Delfino for petitioner.
possession by decree of the probate court at any time within the period V. J. Francisco and R. F. Francisco for respondents.
allowed by the general statute of limitations.
MAKALINTAL, J.:
Our conclusion is that the application of the von Kauffman children was
presented in ample time and that the judgment entered in their favor by The Manila Surety & Fidelity Company, Inc., filed this petition for review
Judge Powell was correct. The Mory claimants, as already stated, are by certiorari of the decision of the Court of Appeals in its Case No. CA-G.R.
debarred from participation in the estate on other grounds. 30916. The case relates to the execution of a joint and several judgment for
money obtained by the said company against the Philippine Ready-Mix
So much of the judgment entered in the Court of First Instance, pursuant to Concrete Co., Inc. and Jose Corominas, Jr., in a litigation started in 1952 in
the decision of Judge Mariano of December 29, 1915, as admits Leontina the Court of First Instance of Manila (Civil Case No. 17014), whose decision
Elizabeth Mory to participate in the estate of Samuel Bischoff is reversed; was affirmed by the Court of Appeals with only a slight modification in
and instead the von Kauffman children will be admitted to share equally in respect of the award for attorney's fees.
one-third of the estate as provided in the decision of Judge Powell of
November 14, 1916. In other respects the judgment of Judge Mariano is The proceedings which took place thereafter are narrated in the decision
affirmed. The costs of this instance will be paid out of the estate. So ordered. sought to be reviewed as follows:

When said decision became final, respondent Manila Sure secured on

September 20, 1961, from the Court of First Instance of Manila in
Civil Case No. 17014 a second alias writ of execution addressed to
respondent provincial sheriff of Rizal whose deputy, together with
counsel for respondent Manila Surety, repaired to the residence of
herein petitioner at No. 794 Harvard Street, Mandaluyong, Rizal, and
levied upon a car, some furniture, appliances and personal properties
found therein belonging solely and exclusively to the petitioner with
the exception of sewing machine which belonged to a maid by the
name of Nati Fresco, a G.E. television set which was the property of
the minor Jose Alfonso Corominas, and a baby grand piano as well as
a Columbia radio phonograph which belonged to Jose Corominas, Jr.
As the petitioner was then abroad, her sister Josefina Teodoro, to
whom she had entrusted the custody and safekeeping of the
properties, had made representations to the deputy sheriff and to the

counsel of respondent Manila Surety regarding the ownership of the
petitioner over certain personal effects levied upon, but they ignored
the same and proceeded with the levy.
Thus, respondents caused the posting at several places notices of
sale, preparatory to disposing petitioner's properties at public
auction.
To stay the sale at public auction of petitioner's properties, she filed
on November 3, 1961, with the Court of First Instance of Rizal a
complaint with injunction, entitled "Trinidad Teodoro vs Manila Surety
& Fidelity Co., Inc. and the Provincial Sheriff of Rizal," praying among
other things, for damages and a writ of preliminary injunction which
was accordingly issued upon petitioner's filing of a bond in the sum of
P30,000.00 enjoining the provincial sheriff of Rizal from selling at
public auction the properties claimed by said petitioner.
However, on November 9, 1961, respondent Manila Surety filed an
"Omnibus Motion to Dismiss the Complaint and to Dissolve
Injunction" to which an opposition was filed.
After the parties had adduced their evidence in support of their
respective claims and after hearing their arguments, the lower court
declared that the properties in question are community properties of
Trinidad Teodoro (herein petitioner) and Jose Corominas, Jr.,
dissolved on May 12, 1962, the writ of preliminary injunction it had
issued and dismissed the complaint (Civil case No. 6865, CFI Rizal).
Not satisfied, Trinidad Teodoro (as plaintiff in said civil case No. 6865
of Rizal) interposed an appeal. In the meanwhile, however, the Manila
Surety filed on May 29, 1962, in the Court of First Instance of Manila
a motion for the issuance of a third alias writ of execution for the
satisfaction of the judgment debt in civil case No. 17014. Acting upon
said motion the Court of First Instance of Manila issued on June 2,
1962, the "Third Alias Writ of Execution."
Thus, on June 7,1962, deputies of the provincial sheriff of Rizal again
repaired to the residence of herein petitioner at No. 794 Harvard St.,
Mandaluyong, and levied upon the same properties, with the
exception of the baby grand piano and the "Columbia" phonograph
which were the properties of Jose Corominas, Jr. and which had
CONFLICTS | Feb 11| 37
already been sold at public auction November 6, 1961 for P3,305.00,
the Regal sewing machine owned by Nati Fresco, the beds found in
the boy's and girl's rooms, a marble dining table and chairs, a
stereophonic phonograph and the G.E. television set. And on the
following day, June 8, 1962, respondent provincial sheriff of Rizal
advertised the sale at public auction of the aforementioned properties
claimed by herein petitioner, setting the date thereof for June 16,
1962.
Trinidad Teodoro thereupon filed an original petition for injunction in the
Court of Appeals to stop the scheduled sale. On October 24, 1962 the said
Court rendered the decision now under review, granting the writ prayed for
and permanently enjoining respondent provincial sheriff of Rizal from selling
at public auction the properties in question for the satisfaction of the
judgment debt of Jose Corominas, Jr.1wph1.t
The case for herein petitioner rests on the proposition that the said
properties, claimed by respondent Teodoro to be hers exclusively, pertain to
the co-ownership established between her and Jose Corominas, Jr., pursuant
to Article 144 of the Civil Code, and consequently may be levied upon on
execution for the satisfaction of the latter's judgment debt. The facts relied
upon in support of this theory of co-ownership are stated in the decision of
the court a quo and quoted by the Court of Appeals, as follows:
Jose Corominas, Jr. and Sonia Lizares were married in Iloilo on
January 5, 1935. On November 29,1954, a decree of divorce was
granted by the Court of the State of Nevada dissolving the bonds of
matrimony between Sonia Lizares and Jose Corominas, Jr. . . .
Trinidad Teodoro met Jose Corominas, Jr. in Hongkong on October 30,
1955. . . . On March 26,1956, they went through a Buddhist wedding
ceremony in Hongkong. Upon their return to the Philippines they took
up residence in a rented house at No. 2305 Agno Street, . . . Manila.
On September 5, 1961, plaintiff and Jose Corominas, Jr. were
married for a second time on Washoe County, Nevada. U.S.A.
Additional Pertinent facts, also mentioned in the decision under review and
controverted by the parties, are that Sonia Lizares is still living and that the
conjugal partnership formed by her marriage to Corominas was dissolved by
the Juvenile and Domestic Relations Court of Manila upon their joint petition,
the decree of dissolution having been issued on October 21, 1957.

The principal issue here is the applicability of Article 144 of the Civil Code to
the situation thus created. This Article provides:
When a man and a woman live together as husband and wife, but
they are not married, or their marriage is void from the beginning,
the property acquired by either or both of them through then work or
industry or their wages and salaries shall be governed by the rules on
co-ownership.
There is no doubt that the decree of divorce granted by the Court of Nevada
in 1954 is not valid under Philippine law, which has outlawed divorce
altogether; that the matrimonial bonds between Jose Corominas, Jr. and
Sonia Lizares have not been dissolved, although their conjugal partnership
was terminated in 1957; and that the former's subsequent marriage in
Hongkong to Trinidad Teodoro is bigamous and void.
While Article 144 speaks, inter alia, of a void marriage without any
qualification, the Court of Appeals declined to apply it in this case on two
grounds: (1) the subsisting marriage of Corominas to Sonia Lizares
constitutes an impediment to a valid marriage between him and respondent
Trinidad Teodoro, which impediment, according to a number of decisions of
the Supreme Court, precludes the establishment of a co-ownership under
said article, and (2) the funds used by said respondent in acquiring the
properties in question were "fruits of her paraphernal investments which
accrued before her marriage to Corominas."
The decisions cited under the first ground are Christensen vs. Garcia, 56 O.G.
No. 16, p. 3199; Samson vs. Salaysay, 56 O.G. No. 11, p. 2401;
and Osmea vs. Rodriguez, 54 O.G. No. 20, p. 5526. In a proper case, where
it may be necessary to do so in order to resolve an unavoidable issue, the
precise scope of the "no impediment to a valid marriage" dictum in said
decisions will undoubtedly deserve closer examination, since it establishes an
exception to the broad terms of Article 144. For one thing, a situation may
arise involving a conflict of rights between a co-ownership under that
provision and an existing conjugal partnership formed by a prior marriage
where, for instance, the husband in such marriage lives with another woman
and with his salary or wages acquires properties during the extra-marital
cohabitation. A ruling would then be in order to determine which as
between the co-ownership and the conjugal partnership could claim
ascendancy insofar as the properties are concerned.
CONFLICTS | Feb 11| 38
In the present case, however, we find no need to pass on this question. The
particular properties involved here which were admittedly acquired by
respondent Teodoro, cannot be deemed to belong to such co-ownership
because, as found by the trial court and confirmed by the Court of Appeals,
the funds used in acquiring said properties were fruits of respondent's
paraphernal investments which accrued before her "marriage" to Corominas.
In other words they were not acquired by either or both of the partners in the
void marriage through their work or industry or their wages and salaries, and
hence cannot be the subject of co-ownership under Article 144. They remain
respondent's exclusive properties, beyond the reach of execution to satisfy
the judgment debt of Corominas.
Several procedural questions have been raised by petitioner. First, that the
injunction issued by the Court of Appeals was improper since it was not in aid
of its appellate jurisdiction; second, that respondent Trinidad Teodoro having
elected to appeal from the decision of the Court of First Instance of Rizal, she
may not pursue the remedy of injunction as she did in this case; third, that
respondent's petition for injunction in the Court of Appeals failed to state a
cause of action; fourth, that the proper remedy available to respondent was
by filing a third-party claim; and finally, that the trial judge should have been
included as party respondent in the petition for injunction.
As to the first in second points, the fact is that respondent Trinidad Teodoro
perfected her appeal to the Court of Appeals, which found that there were
questions of fact involved therein, one of them being whether the properties
in question were acquired before or after her void marriage to Corominas. In
aid of its appellate jurisdiction, therefore, the said Court could issue a writ of
injunction. Of course, what happened here was that before the record on
appeal could be filed (on June 18, 1962) or approved (on September 8,
1962) a third alias writ of execution was issued by the trial court (on June 2,
1962) and the properties in question were again levied upon by the sheriff
and advertised for sale on June 16, 1962. It was impracticable for respondent
to first wait for the appeal to be elevated to and docketed in the Court of
Appeals and there secure the ancillary remedy of injunction therein. An
independent petition for injunction, under the circumstances, was not
unjustified.
Respondent could, indeed, have filed a third party claim instead as indicated
in Rule 39, Section 15. * But then her sister Josefina Teodoro did make such a
claim in her behalf after the second alias writ of execution was issued, but it
was ignored and the sheriff proceeded with the levy. In any event, a third
 CONFLICTS | Feb 11| 39

party claim is not an exclusive remedy: the same rule provides that nothing
therein contained "shall prevent such third person from vindicating his claim
to the property by any proper action.

We do not deem it to be a reversible error for Trinidad Teodoro not to include

the trial Judge as party-respondent in her petition for injunction in the Court
of Appeals. The trial Judge would have been merely a nominal party anyway,
and no substantial rights of petitioner here have been prejudiced by the
omission.

In view of the foregoing, the judgment of the Court of Appeals is affirmed,

with costs.

G.R. No. L-68470 October 8, 1985

ALICE REYES VAN DORN, petitioner,

vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX,
Regional Trial Court of the National Capital Region Pasay City and
RICHARD UPTON respondents.

MELENCIO-HERRERA, J.:\

In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn
seeks to set aside the Orders, dated September 15, 1983 and August 3,
1984, in Civil Case No. 1075-P, issued by respondent Judge, which denied her
Motion to Dismiss said case, and her Motion for Reconsideration of the
Dismissal Order, respectively.
The basic background facts are that petitioner is a citizen of the Philippines
while private respondent is a citizen of the United States; that they were
married in Hongkong in 1972; that, after the marriage, they established their
residence in the Philippines; that they begot two children born on April 4,
1973 and December 18, 1975, respectively; that the parties were divorced in
Nevada, United States, in 1982; and that petitioner has re-married also in
Nevada, this time to Theodore Van Dorn.
Dated June 8, 1983, private respondent filed suit against petitioner in Civil
Case No. 1075-P of the Regional Trial Court, Branch CXV, in Pasay City,
stating that petitioner's business in Ermita, Manila, (the Galleon Shop, for
short), is conjugal property of the parties, and asking that petitioner be
ordered to render an accounting of that business, and that private
respondent be declared with right to manage the conjugal property.
Petitioner moved to dismiss the case on the ground that the cause of action
is barred by previous judgment in the divorce proceedings before the Nevada
Court wherein respondent had acknowledged that he and petitioner had "no
community property" as of June 11, 1982. The Court below denied the
Motion to Dismiss in the mentioned case on the ground that the property
involved is located in the Philippines so that the Divorce Decree has no
bearing in the case. The denial is now the subject of this certiorari
proceeding.
Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and
is not subject to appeal. certiorari and Prohibition are neither the remedies to
question the propriety of an interlocutory order of the trial Court. However,
when a grave abuse of discretion was patently committed, or the lower Court
acted capriciously and whimsically, then it devolves upon this Court in a
certiorari proceeding to exercise its supervisory authority and to correct the
error committed which, in such a case, is equivalent to lack of
jurisdiction. 1 Prohibition would then lie since it would be useless and a waste
of time to go ahead with the proceedings. 2 Weconsider the petition filed in
this case within the exception, and we have given it due course.
CONFLICTS | Feb 11| 40
For resolution is the effect of the foreign divorce on the parties and their
alleged conjugal property in the Philippines.
Petitioner contends that respondent is estopped from laying claim on the
alleged conjugal property because of the representation he made in the
divorce proceedings before the American Court that they had no community
of property; that the Galleon Shop was not established through conjugal
funds, and that respondent's claim is barred by prior judgment.
For his part, respondent avers that the Divorce Decree issued by the Nevada
Court cannot prevail over the prohibitive laws of the Philippines and its
declared national policy; that the acts and declaration of a foreign Court
cannot, especially if the same is contrary to public policy, divest Philippine
Courts of jurisdiction to entertain matters within its jurisdiction.
For the resolution of this case, it is not necessary to determine whether the
property relations between petitioner and private respondent, after their
marriage, were upon absolute or relative community property, upon complete
separation of property, or upon any other regime. The pivotal fact in this case
is the Nevada divorce of the parties.
The Nevada District Court, which decreed the divorce, had obtained
jurisdiction over petitioner who appeared in person before the Court during
the trial of the case. It also obtained jurisdiction over private respondent
who, giving his address as No. 381 Bush Street, San Francisco, California,
authorized his attorneys in the divorce case, Karp & Gradt Ltd., to agree to
the divorce on the ground of incompatibility in the understanding that there
were neither community property nor community obligations. 3 As explicitly
stated in the Power of Attorney he executed in favor of the law firm of KARP
& GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in the divorce
proceedings:
xxx xxx xxx
You are hereby authorized to accept service of Summons, to
file an Answer, appear on my behalf and do an things
necessary and proper to represent me, without further
contesting, subject to the following:
 CONFLICTS | Feb 11| 41

1. That my spouse seeks a divorce on the ground of
incompatibility.
2. That there is no community of property to be adjudicated
by the Court.
3. 'I'hat there are no community obligations to be
adjudicated by the court.
xxx xxx xxx 4 to be considered still married to private respondent and still subject to a
There can be no question as to the validity of that Nevada divorce in any of
the States of the United States. The decree is binding on private respondent
as an American citizen. For instance, private respondent cannot sue
petitioner, as her husband, in any State of the Union. What he is contending
in this case is that the divorce is not valid and binding in this jurisdiction, the
same being contrary to local law and public policy.
It is true that owing to the nationality principle embodied in Article 15 of the
Civil Code, 5 only Philippine nationals are covered by the policy against
absolute divorces the same being considered contrary to our concept of
public police and morality. However, aliens may obtain divorces abroad, which
may be recognized in the Philippines, provided they are valid according to
their national law. 6 In this case, the divorce in Nevada released private
respondent from the marriage from the standards of American law, under
which divorce dissolves the marriage. As stated by the Federal Supreme
Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:
Thus, pursuant to his national law, private respondent is no longer the
husband of petitioner. He would have no standing to sue in the case below as
petitioner's husband entitled to exercise control over conjugal assets. As he is
bound by the Decision of his own country's Court, which validly exercised
jurisdiction over him, and whose decision he does not repudiate, he is
estopped by his own representation before said Court from asserting his right
over the alleged conjugal property.
To maintain, as private respondent does, that, under our laws, petitioner has
wife's obligations under Article 109, et. seq. of the Civil Code cannot be just.
Petitioner should not be obliged to live together with, observe respect and
fidelity, and render support to private respondent. The latter should not
continue to be one of her heirs with possible rights to conjugal property. She
should not be discriminated against in her own country if the ends of justice
are to be served.
WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered
to dismiss the Complaint filed in Civil Case No. 1075-P of his Court.
Without costs.
SO ORDERED.

The purpose and effect of a decree of divorce from the bond

of matrimony by a court of competent jurisdiction are to
change the existing status or domestic relation of husband
and wife, and to free them both from the bond. The marriage
tie when thus severed as to one party, ceases to bind either.
A husband without a wife, or a wife without a husband, is
unknown to the law. When the law provides, in the nature of
a penalty. that the guilty party shall not marry again, that
party, as well as the other, is still absolutely freed from the
bond of the former marriage.

G.R. No. 80116 June 30, 1989
IMELDA MANALAYSAY PILAPIL, petitioner,
vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of
the Regional Trial Court of Manila, Branch XXVI; HON. LUIS C.
VICTOR, in his capacity as the City Fiscal of Manila; and ERICH
EKKEHARD GEILING, respondents.
REGALADO, J.:
An ill-starred marriage of a Filipina and a foreigner which ended in a foreign
absolute divorce, only to be followed by a criminal infidelity suit of the latter
against the former, provides Us the opportunity to lay down a decisional rule
on what hitherto appears to be an unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino
citizen, and private respondent Erich Ekkehard Geiling, a German national,
were married before the Registrar of Births, Marriages and Deaths at
Friedensweiler in the Federal Republic of Germany. The marriage started
auspiciously enough, and the couple lived together for some time in Malate,
Manila where their only child, Isabella Pilapil Geiling, was born on April 20,
1980. 1
Thereafter, marital discord set in, with mutual recriminations between the
spouses, followed by a separation de facto between them.
After about three and a half years of marriage, such connubial disharmony
eventuated in private respondent initiating a divorce proceeding against
petitioner in Germany before the Schoneberg Local Court in January, 1983.
CONFLICTS | Feb 11| 42
He claimed that there was failure of their marriage and that they had been
living apart since April, 1982. 2
Petitioner, on the other hand, filed an action for legal separation, support and
separation of property before the Regional Trial Court of Manila, Branch
XXXII, on January 23, 1983 where the same is still pending as Civil Case No.
83-15866. 3
On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal
Republic of Germany, promulgated a decree of divorce on the ground of
failure of marriage of the spouses. The custody of the child was granted to
petitioner. The records show that under German law said court was locally
and internationally competent for the divorce proceeding and that the
dissolution of said marriage was legally founded on and authorized by the
applicable law of that foreign jurisdiction. 4
On June 27, 1986, or more than five months after the issuance of the divorce
decree, private respondent filed two complaints for adultery before the City
Fiscal of Manila alleging that, while still married to said respondent, petitioner
"had an affair with a certain William Chia as early as 1982 and with yet
another man named Jesus Chua sometime in 1983". Assistant Fiscal Jacinto
A. de los Reyes, Jr., after the corresponding investigation, recommended the
dismissal of the cases on the ground of insufficiency of evidence. 5 However,
upon review, the respondent city fiscal approved a resolution, dated January
8, 1986, directing the filing of two complaints for adultery against the
petitioner. 6 The complaints were accordingly filed and were eventually raffled
to two branches of the Regional Trial Court of Manila. The case
entitled "People of the Philippines vs. Imelda Pilapil and William
Chia", docketed as Criminal Case No. 87-52435, was assigned to Branch
XXVI presided by the respondent judge; while the other case, "People of the
Philippines vs. Imelda Pilapil and James Chua", docketed as Criminal Case
No. 87-52434 went to the sala of Judge Leonardo Cruz, Branch XXV, of the
same court. 7
On March 14, 1987, petitioner filed a petition with the Secretary of Justice
asking that the aforesaid resolution of respondent fiscal be set aside and the
cases against her be dismissed. 8 A similar petition was filed by James Chua,
her co-accused in Criminal Case No. 87-52434. The Secretary of Justice,
through the Chief State Prosecutor, gave due course to both petitions and
directed the respondent city fiscal to inform the Department of Justice "if the
accused have already been arraigned and if not yet arraigned, to move to

defer further proceedings" and to elevate the entire records of both cases to
his office for review. 9
Petitioner thereafter filed a motion in both criminal cases to defer her
arraignment and to suspend further proceedings thereon. 10 As a
consequence, Judge Leonardo Cruz suspended proceedings in Criminal Case
No. 87-52434. On the other hand, respondent judge merely reset the date of
the arraignment in Criminal Case No. 87-52435 to April 6, 1987. Before such
scheduled date, petitioner moved for the cancellation of the arraignment and
for the suspension of proceedings in said Criminal Case No. 87-52435 until
after the resolution of the petition for review then pending before the
Secretary of Justice. 11 A motion to quash was also filed in the same case on
the ground of lack of jurisdiction, 12 which motion was denied by the
respondent judge in an order dated September 8, 1987. The same order also
directed the arraignment of both accused therein, that is, petitioner and
William Chia. The latter entered a plea of not guilty while the petitioner
refused to be arraigned. Such refusal of the petitioner being considered by
respondent judge as direct contempt, she and her counsel were fined and the
former was ordered detained until she submitted herself for
arraignment. 13 Later, private respondent entered a plea of not guilty. 14
On October 27, 1987, petitioner filed this special civil action for certiorari and
prohibition, with a prayer for a temporary restraining order, seeking the
annulment of the order of the lower court denying her motion to quash. The
petition is anchored on the main ground that the court is without jurisdiction
"to try and decide the charge of adultery, which is a private offense that
cannot be prosecuted de officio (sic), since the purported complainant, a
foreigner, does not qualify as an offended spouse having obtained a final
divorce decree under his national law prior to his filing the criminal
complaint." 15
On October 21, 1987, this Court issued a temporary restraining order
enjoining the respondents from implementing the aforesaid order of
September 8, 1987 and from further proceeding with Criminal Case No. 87-
52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A.
Ordoez acted on the aforesaid petitions for review and, upholding
petitioner's ratiocinations, issued a resolution directing the respondent city
fiscal to move for the dismissal of the complaints against the petitioner. 16
We find this petition meritorious. The writs prayed for shall accordingly issue.
CONFLICTS | Feb 11| 43
Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well
as four other crimes against chastity, cannot be prosecuted except upon a
sworn written complaint filed by the offended spouse. It has long since been
established, with unwavering consistency, that compliance with this rule is a
jurisdictional, and not merely a formal, requirement. 18 While in point of strict
law the jurisdiction of the court over the offense is vested in it by the
Judiciary Law, the requirement for a sworn written complaint is just as
jurisdictional a mandate since it is that complaint which starts the
prosecutory proceeding 19 and without which the court cannot exercise its
jurisdiction to try the case.
Now, the law specifically provides that in prosecutions for adultery and
concubinage the person who can legally file the complaint should be the
offended spouse, and nobody else. Unlike the offenses of seduction,
abduction, rape and acts of lasciviousness, no provision is made for the
prosecution of the crimes of adultery and concubinage by the parents,
grandparents or guardian of the offended party. The so-called exclusive and
successive rule in the prosecution of the first four offenses above mentioned
do not apply to adultery and concubinage. It is significant that while the
State, as parens patriae, was added and vested by the 1985 Rules of
Criminal Procedure with the power to initiate the criminal action for a
deceased or incapacitated victim in the aforesaid offenses of seduction,
abduction, rape and acts of lasciviousness, in default of her parents,
grandparents or guardian, such amendment did not include the crimes of
adultery and concubinage. In other words, only the offended spouse, and no
other, is authorized by law to initiate the action therefor.
Corollary to such exclusive grant of power to the offended spouse to institute
the action, it necessarily follows that such initiator must have the status,
capacity or legal representation to do so at the time of the filing of the
criminal action. This is a familiar and express rule in civil actions; in fact, lack
of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is
determined as of the filing of the complaint or petition.
The absence of an equivalent explicit rule in the prosecution of criminal cases
does not mean that the same requirement and rationale would not apply.
Understandably, it may not have been found necessary since criminal actions
are generally and fundamentally commenced by the State, through the
People of the Philippines, the offended party being merely the complaining
witness therein. However, in the so-called "private crimes" or those which
cannot be prosecuted de oficio, and the present prosecution for adultery is of

such genre, the offended spouse assumes a more predominant role since the
right to commence the action, or to refrain therefrom, is a matter exclusively
within his power and option.
This policy was adopted out of consideration for the aggrieved party who
might prefer to suffer the outrage in silence rather than go through the
scandal of a public trial. 20 Hence, as cogently argued by petitioner, Article
344 of the Revised Penal Code thus presupposes that the marital relationship
is still subsisting at the time of the institution of the criminal action for,
adultery. This is a logical consequence since the raison d'etre of said
provision of law would be absent where the supposed offended party had
ceased to be the spouse of the alleged offender at the time of the filing of the
criminal case. 21
In these cases, therefore, it is indispensable that the status and capacity of
the complainant to commence the action be definitely established and, as
already demonstrated, such status or capacity must indubitably exist as of
the time he initiates the action. It would be absurd if his capacity to bring the
action would be determined by his status before or subsequent to the
commencement thereof, where such capacity or status existed prior to but
ceased before, or was acquired subsequent to but did not exist at the time of,
the institution of the case. We would thereby have the anomalous spectacle
of a party bringing suit at the very time when he is without the legal capacity
to do so.
To repeat, there does not appear to be any local precedential jurisprudence
on the specific issue as to when precisely the status of a complainant as an
offended spouse must exist where a criminal prosecution can be commenced
only by one who in law can be categorized as possessed of such status.
Stated differently and with reference to the present case, the inquiry ;would
be whether it is necessary in the commencement of a criminal action for
adultery that the marital bonds between the complainant and the accused be
unsevered and existing at the time of the institution of the action by the
former against the latter.
American jurisprudence, on cases involving statutes in that jurisdiction which
are in pari materia with ours, yields the rule that after a divorce has been
decreed, the innocent spouse no longer has the right to institute proceedings
against the offenders where the statute provides that the innocent spouse
shall have the exclusive right to institute a prosecution for adultery. Where,
however, proceedings have been properly commenced, a divorce
CONFLICTS | Feb 11| 44
subsequently granted can have no legal effect on the prosecution of the
criminal proceedings to a conclusion. 22
In the cited Loftus case, the Supreme Court of Iowa held that
'No prosecution for adultery can be commenced except on
the complaint of the husband or wife.' Section 4932,
Code. Though Loftus was husband of defendant when the
offense is said to have been committed, he had ceased to be
such when the prosecution was begun; and appellant insists
that his status was not such as to entitle him to make the
complaint. We have repeatedly said that the offense is
against the unoffending spouse, as well as the state, in
explaining the reason for this provision in the statute; and we
are of the opinion that the unoffending spouse must be such
when the prosecution is commenced. (Emphasis supplied.)
We see no reason why the same doctrinal rule should not apply in this case
and in our jurisdiction, considering our statutory law and jural policy on the
matter. We are convinced that in cases of such nature, the status of the
complainant vis-a-vis the accused must be determined as of the time the
complaint was filed. Thus, the person who initiates the adultery case must be
an offended spouse, and by this is meant that he is still married to the
accused spouse, at the time of the filing of the complaint.
In the present case, the fact that private respondent obtained a valid divorce
in his country, the Federal Republic of Germany, is admitted. Said divorce and
its legal effects may be recognized in the Philippines insofar as private
respondent is concerned 23 in view of the nationality principle in our civil law
on the matter of status of persons.
Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce
was granted by a United States court between Alice Van Dornja Filipina, and
her American husband, the latter filed a civil case in a trial court here alleging
that her business concern was conjugal property and praying that she be
ordered to render an accounting and that the plaintiff be granted the right to
manage the business. Rejecting his pretensions, this Court perspicuously
demonstrated the error of such stance, thus:
There can be no question as to the validity of that Nevada
divorce in any of the States of the United States. The decree

is binding on private respondent as an American citizen. For
instance, private respondent cannot sue petitioner, as her
husband, in any State of the Union. ...
It is true that owing to the nationality principle embodied in
Article 15 of the Civil Code, only Philippine nationals are
covered by the policy against absolute divorces the same
being considered contrary to our concept of public policy and
morality. However, aliens may obtain divorces abroad, which
may be recognized in the Philippines, provided they are valid
according to their national law. ...
Thus, pursuant to his national law, private respondent is no
longer the husband of petitioner. He would have no standing
to sue in the case below as petitioner's husband entitled to
exercise control over conjugal assets. ... 25
Under the same considerations and rationale, private respondent, being no
longer the husband of petitioner, had no legal standing to commence the
adultery case under the imposture that he was the offended spouse at the
time he filed suit.
The allegation of private respondent that he could not have brought this case
before the decree of divorce for lack of knowledge, even if true, is of no legal
significance or consequence in this case. When said respondent initiated the
divorce proceeding, he obviously knew that there would no longer be a family
nor marriage vows to protect once a dissolution of the marriage is decreed.
Neither would there be a danger of introducing spurious heirs into the family,
which is said to be one of the reasons for the particular formulation of our
law on adultery, 26 since there would thenceforth be no spousal relationship
to speak of. The severance of the marital bond had the effect of dissociating
the former spouses from each other, hence the actuations of one would not
affect or cast obloquy on the other.
The aforecited case of United States vs. Mata cannot be successfully relied
upon by private respondent. In applying Article 433 of the old Penal Code,
substantially the same as Article 333 of the Revised Penal Code, which
punished adultery "although the marriage be afterwards declared void", the
Court merely stated that "the lawmakers intended to declare adulterous the
infidelity of a married woman to her marital vows, even though it should be
made to appear that she is entitled to have her marriage contract declared
CONFLICTS | Feb 11| 45
null and void, until and unless she actually secures a formal judicial
declaration to that effect". Definitely, it cannot be logically inferred therefrom
that the complaint can still be filed after the declaration of nullity because
such declaration that the marriage is void ab initio is equivalent to stating
that it never existed. There being no marriage from the beginning, any
complaint for adultery filed after said declaration of nullity would no longer
have a leg to stand on. Moreover, what was consequently contemplated and
within the purview of the decision in said case is the situation where the
criminal action for adultery was filed before the termination of the marriage
by a judicial declaration of its nullity ab initio. The same rule and requisite
would necessarily apply where the termination of the marriage was effected,
as in this case, by a valid foreign divorce.
Private respondent's invocation of Donio-Teves, et al. vs.
Vamenta, hereinbefore cited, 27
must suffer the same fate of inapplicability. A
cursory reading of said case reveals that the offended spouse therein had
duly and seasonably filed a complaint for adultery, although an issue was
raised as to its sufficiency but which was resolved in favor of the
complainant. Said case did not involve a factual situation akin to the one at
bar or any issue determinative of the controversy herein.
WHEREFORE, the questioned order denying petitioner's motion to quash
is SET ASIDE and another one entered DISMISSING the complaint in Criminal
Case No. 87-52435 for lack of jurisdiction. The temporary restraining order
issued in this case on October 21, 1987 is hereby made permanent.
SO ORDERED.
 CONFLICTS | Feb 11| 46

G.R. No. 193902 June 1, 2011

ATTY. MARIETTA D. ZAMORANOS, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES and SAMSON R. PACASUM,
SR., Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 193908

ATTY. MARIETTA D. ZAMORANOS, Petitioner,

vs.
SAMSON R. PACASUM, SR., Respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 194075

SAMSON R. PACASUM, SR., Petitioner,

vs.
ATTY. MARIETTA D. ZAMORANOS, Respondent.

DECISION

NACHURA, J.:

These are three (3) consolidated petitions for review on certiorari under Rule
45 of the Rules of Court, assailing the Decision 1 dated July 30, 2010 of the
Court of Appeals (CA) in CA-G.R. SP No. 03525-MIN, dismissing the petition
for certiorari filed by petitioner Atty. Marietta D. Zamoranos (Zamoranos) in
G.R. No. 193902, thus, affirming the Order 2 of the Regional Trial Court (RTC),
Branch 6, Lanao del Norte, in Criminal Case No. 06-12305 for Bigamy filed by
petitioner Samson R. Pacasum, Sr. in G.R. No. 194075.

Before anything else, we disentangle the facts.

On May 3, 1982, Zamoranos wed Jesus de Guzman, a Muslim convert, in

Islamic rites. Prior thereto, Zamoranos was a Roman Catholic who had
converted to Islam on April 28, 1982. Subsequently, on July 30, 1982, the

two wed again, this time, in civil rites before Judge Perfecto Laguio (Laguio)
of the RTC, Quezon City.
A little after a year, on December 18, 1983, Zamoranos and De Guzman
obtained a divorce by talaq. The dissolution of their marriage was confirmed
by the Sharia Circuit District Court, 1st Circuit, 3rd District, Isabela, Basilan,
which issued a Decree of Divorce on June 18, 1992, as follows:
DECREE OF DIVORCE
This is a case for divorce filed by the herein complainant Marietta (Mariam)
D. Zamoranos de Guzman against her husband, the herein respondent, on
the ground that the wife, herein complainant, was previously given by her
husband the authority to exercise Talaq, as provided for and, in accordance
with Presidential Decree No. 1083, otherwise known as the Code of Muslim
Personal Laws of the Philippines.
When this case was called for hearing[,] both parties appeared and herein
respondent, Jesus (Mohamad) de Guzman[,] interposes no objection to
confirm their divorce, which they have freely entered into on December 18,
1983.
This Court, after evaluating the testimonies of the herein parties is fully
convinced that both the complainant and the respondent have been duly
converted to the faith of Islam prior to their Muslim wedding and finding that
there is no more possibility of reconciliation by and between them, hereby
issues this decree of divorce.
WHEREFORE, premises considered and pursuant to the provisions of the
Code of Muslim Personal Laws of the Philippines, this petition is hereby
granted. Consequently, the marriage between Marietta (Mariam) D.
Zamoranos de Guzman and Jesus (Mohamad) de Guzman is hereby
confirmed dissolved.
Issued this 18th day of June, 1992, at Isabela, Basilan Province, Philippines.
(signed)
HON. KAUDRI L. JAINUL
CONFLICTS | Feb 11| 47
Presiding Judge3
Now it came to pass that Zamoranos married anew on December 20, 1989.
As she had previously done in her first nuptial to De Guzman, Zamoranos
wed Samson Pacasum, Sr. (Pacasum), her subordinate at the Bureau of
Customs where she worked, under Islamic rites in Balo-i, Lanao del Norte.
Thereafter, on December 28, 1992, in order to strengthen the ties of their
marriage, Zamoranos and Pacasum renewed their marriage vows in a civil
ceremony before Judge Valerio Salazar of the RTC, Iligan City. However,
unlike in Zamoranos first marriage to De Guzman, the union between her
and Pacasum was blessed with progeny, namely: Samson, Sr., Sam Jean, and
Sam Joon.
Despite their three children, the relationship between Zamoranos and
Pacasum turned sour and, in 1998, the two were de facto separated. The
volatile relationship of Zamoranos and Pacasum escalated into a bitter battle
for custody of their minor children. Eventually, on October 18, 1999,
Zamoranos and Pacasum arrived at a compromise agreement which vested
primary custody of the children in the former, with the latter retaining
visitorial rights thereto.
As it turned out, the agreement rankled on Pacasum. He filed a flurry of
cases against Zamoranos, to wit:
1. Petition for Annulment of Marriage filed on March 31, 2003 before
the RTC, Branch 2, Iligan City, docketed as Civil Case No. 6249.
Subsequently, on May 31, 2004, Pacasum amended the petition into
one for Declaration of a Void Marriage, alleging, among other things,
that: (a) Zamoranos, at the time of her marriage to Pacasum, was
already previously married to De Guzman on July 30, 1982; (b)
Zamoranos first marriage, solemnized before the RTC, Quezon City,
presided over by Judge Laguio, subsisted at the time of the
celebration of Zamoranos and Pacasums marriage; (c) Zamoranos
and Pacasums marriage was bigamous and void ab initio; and (d)
thus, Zamoranos, as the guilty spouse, should forfeit: (i) custody of
her minor children to their father, who should have sole and exclusive
custody; (ii) her share in the community property in favor of the
children; and (iii) her inheritance from Pacasum by testate or
intestate succession.

2. Criminal complaint for Bigamy under Article 349 of the Revised
Penal Code (RPC), filed on October 25, 2004.
3. Separate administrative cases for Zamoranos dismissal from
service and disbarment before the Civil Service Commission (CSC),
the Integrated Bar of the Philippines, and the Bureau of Finance
Revenue Integrity Protection Service, respectively. Parenthetically,
the administrative cases were dismissed in due course. However, as
of the date of the assailed CA Decision, Pacasums appeal from the
CSCs dismissal of the administrative case was still pending
resolution.
Quite ironically, soon after amending his petition in Civil Case No. 6249,
Pacasum contracted a second marriage with Catherine Ang Dignos on July
18, 2004.4
Meanwhile, on the criminal litigation front, the Office of the City Prosecutor,
through Prosecutor Leonor Quiones, issued a resolution dated February 2,
2005, finding prima facie evidence to hold Zamoranos liable for
Bigamy.5Consequently, on February 22, 2006, an Information for Bigamy was
filed against Zamoranos before the RTC, Branch 6, Iligan City, docketed as
Criminal Case No. 06-12305.6
Zamoranos filed a motion for reconsideration of the City Prosecutors
February 2, 2005 resolution. As a result, the proceedings before the RTC,
Branch 6, Iligan City, were temporarily suspended. On April 29, 2005, the
City Prosecutor of Ozamis City, the acting City Prosecutor of Iligan City at the
time, issued a resolution granting Zamoranos motion for reconsideration and
dismissing the charge of Bigamy against Zamoranos.7
Not unexpectedly, Pacasum moved for reconsideration of the April 29, 2005
resolution of the City Prosecutor, which was denied in a resolution dated
August 15, 2005.8 Posthaste, Pacasum filed a Petition for Review before the
Office of the Secretary of Justice, assailing the dismissal of his criminal
complaint for Bigamy against Zamoranos.9
In yet another turn of events, the Secretary of Justice, on February 7, 2006,
issued a resolution granting Pacasums Petition for Review and reversed the
February 2, 2005 and April 29, 2005 resolutions of the City
Prosecutor.10 Zamoranos immediately filed an Omnibus Motion and
Supplement to the Urgent Omnibus Motion: (1) for Reconsideration; (2) to
CONFLICTS | Feb 11| 48
Hold in Abeyance Filing of the Instant Case; and (3) to Hold in Abeyance or
Quash Warrant of Arrest, respectively dated February 20, 2006 and February
24, 2006, before the Secretary of Justice. 11 Unfortunately for Zamoranos, her
twin motions were denied by the Secretary of Justice in a resolution dated
May 17, 2006.12
Zamoranos second motion for reconsideration, as with her previous motions,
was likewise denied.
On the other civil litigation front on the Declaration of a Void Marriage,
docketed as Civil Case No. 6249, the RTC, Branch 2, Iligan City, rendered a
decision in favor of Zamoranos, dismissing the petition of Pacasum for lack of
jurisdiction. The RTC, Branch 2, Iligan City, found that Zamoranos and De
Guzman are Muslims, and were such at the time of their marriage, whose
marital relationship was governed by Presidential Decree (P.D.) No. 1083,
otherwise known as the Code of Muslim Personal Laws of the Philippines:
From the foregoing uncontroverted facts, the Court finds that the allegation
of [Pacasum] to the effect that his marriage with [Zamoranos] on December
28, 1992 is a bigamous marriage due to the alleged subsisting previous
marriage between [Zamoranos] and Jesus de Guzman is misplaced. The
previous marriage between Jesus de Guzman and [Zamoranos] has long
been terminated [and] has gone with the wind. The fact that divorce by Talaq
was entered into by [Zamoranos] and her first husband in accordance with
PD 1083, x x x their marriage is dissolved and consequently thereof,
[Zamoranos] and Jesus de Guzman can re-marry. Moreover, the second
marriage entered into by [Zamoranos] and her first husband Jesus de
Guzman under the Family Code on July 30, 1982 is merely ceremonial, being
unnecessary, it does not modify/alter or change the validity of the first
marriage entered into by them under PD 1083.
Likewise, in the case of [Pacasum] and [Zamoranos], their second marriage
on December 28, 1992 under the Family Code does not in any way modify,
alter or change the validity of the first marriage on December 20, 1989
entered into by [Pacasum] and [Zamoranos] under PD 1083, as amended. In
fact, according to Ghazali, one of the renowned Muslim author and jurist in
Islamic Law and Jurisprudence and concurred in by retired Justice Ra[s]ul of
the Court of Appeals and also a Professor on Islamic Law and Jurisprudence,
in the case of combined marriage[s], the first marriage is to be considered
valid and effective as between the parties while the second marriage is
merely ceremonial, being a surplusage and unnecessary. Therefore, the

divorce by Talaq dissolved the marriage between [Zamoranos] and her first
husband[,de Guzman,] being governed by PD 1083, x x x.
Article 13, Chapter I, Title II of the Code of Muslim Personal Laws, provides x
x x:
"Application
The provisions of this title shall apply to marriage and divorce wherein both
parties are Muslims[,] or wherein only the male party is a Muslim and the
marriage is solemnized in accordance with Muslim law or this Code in any
part of the Philippines."
Accordingly, matters relating to the marriages and divorce of [Zamoranos]
and her first husband, Jesus de Guzman[,] shall be governed by the Muslim
Code and divorce proceedings shall be properly within the exclusive original
jurisdiction of the Sharia Circuit Court.
Art. 155, Chapter 2, Title II, Book 4 of the Muslim code, provides x x x:
"Jurisdiction The Sharia Circuit Courts shall have exclusive original
jurisdiction over:
xxxx
2. All civil actions and proceedings between parties who are Muslims
or have been married in accordance with Article 13 involving disputes
relating to:
a) Marriage;
b) Divorce recognized under this Code;
x x x x"
The above provision of law clearly shows no concurrent jurisdiction with any
civil courts or other courts of law. And any divorce proceeding undertaken
before the Shari[a] Court is valid, recognized, binding and sufficient divorce
proceedings.
CONFLICTS | Feb 11| 49
Moreover, the instant case is one of the several cases filed by [Pacasum]
against [Zamoranos] such as complaints for disbarment, for immorality, for
bigamy and misconduct before the Integrated Bar of the Philippines (IBP) and
in the Civil Service Commission which were all similar or [based on] the same
set of facts. A pure and simple harassment.
In the light of the foregoing findings, the Court is of the considered view and
so hold that this Court has no jurisdiction to hear and decide the above-
entitled case for annulment of marriage entered into under PD 1083, x x x. It
is the Sharia Circuit Court that has the exclusive original jurisdiction.
WHEREFORE, premises considered, the affirmative defenses which are in the
nature of motion to dismiss is hereby granted.
The above-entitled case is hereby dismissed for lack of jurisdiction.
SO ORDERED.13
On separate appeals, the CA and the Supreme Court affirmed the dismissal of
Civil Case No. 6249 by the RTC, Branch 2, Iligan City. On April 3, 2009, the
denial by the Supreme Court of Pacasums appeal became final and executory
and was recorded in the Book of Entries of Judgments. 14
In the meantime, on August 7, 2009, the RTC, Branch 6, Iligan City, upon
motion of Pacasum, issued an Order reinstating Criminal Case No. 06-12305
for Bigamy against Zamoranos.15
Not surprisingly, Zamoranos filed a Motion to Quash the Information, arguing
that the RTC, Branch 6, Iligan City, had no jurisdiction over her person and
over the offense charged. Zamoranos asseverated, in the main, that the
decision of the RTC, Branch 2, Iligan City, in Civil Case No. 6249 categorically
declared her and Pacasum as Muslims, resulting in the mootness of Criminal
Case No. 06-12305 and the inapplicability of the RPC provision on Bigamy to
her marriage to Pacasum. In all, Zamoranos claimed that Criminal Case No.
06-12305 ought to be dismissed.16
On December 21, 2009, the RTC, Branch 6, Iligan City, denied Zamoranos
Motion to Quash the Information. Zamoranos motion for reconsideration
thereof was likewise denied.17

Undaunted, Zamoranos filed a petition for certiorari for the nullification and
reversal of the December 21, 2009 Order of the RTC, Branch 6, Iligan City. As
previously adverted to, the CA dismissed Zamoranos petition. The CA dwelt
on the propriety of a petition for certiorari to assail the denial of a Motion to
Quash the Information:
A petition for certiorari alleging grave abuse of discretion is an extraordinary
remedy. As such, it is confined to extraordinary cases wherein the action of
the inferior court is wholly void. The aim of certiorari is to keep the inferior
court within the parameters of its jurisdiction. Hence, no grave abuse of
discretion may be imputed to a court on the basis alone of an alleged
misappreciation of facts and evidence. To prosper, a petition for certiorari
must clearly demonstrate that the lower court blatantly abused its authority
to a point so grave as to deprive it of its very power to dispense justice.
Simply put, in a petition for certiorari, the jurisdiction of the appellate court is
narrow in scope. It is limited to resolving only errors of jurisdiction. It is not
to stray at will and resolve questions or issues beyond its competence, such
as an error of judgment which is defined as one in which the court or quasi-
judicial body may commit in the exercise of its jurisdiction; as opposed to an
error of jurisdiction where the acts complained of were issued without or in
excess of jurisdiction.
xxxx
In the present case, [w]e have circumspectly examined [Zamoranos] Motion
to Quash Information and the action taken by the [RTC, Branch 6, Iligan City]
in respect thereto, and [w]e found nothing that may constitute as grave
abuse of discretion on the part of the [RTC, Branch 6, Iligan City]. The Order
dated December 21, 2009, which first denied [Zamoranos] [M]otion to
[Q]uash Information meticulously explained the factual and legal basis for
the denial of the issues raised by [Zamoranos] in said motion. We find the
[RTC, Branch 6, Iligan Citys] stance in upholding the sufficiency of the
Information for bigamy and taking cognizance of Criminal Case No. 06-12305
to be well within the bounds of its jurisdiction. Even assuming arguendo that
the denial of petitioners motion to quash is erroneous, such error was, at
worst, an error of judgment and not of jurisdiction. 18
Interestingly, even Pacasum was not satisfied with the CAs dismissal of
Zamoranos petition for certiorari. Hence, these separate appeals by
Zamoranos and Pacasum.
CONFLICTS | Feb 11| 50
We note that Zamoranos is petitioner in two separate cases, filed by her two
counsels, docketed as G.R. Nos. 193902 and 193908, respectively, which
assail the same CA Decision. However, upon motion of counsel for
Zamoranos, to obviate confusion and superfluity, we have allowed Zamoranos
to withdraw her petition in G.R. No. 193908 and for her earlier petition in
G.R. No. 193902 to remain.
Zamoranos posits that it was grievous error for the CA to ignore the
conclusions made by the RTC, Branch 2, Iligan City, and affirmed by the CA
and this Court, to wit:
1. Zamoranos is a Muslim and was validly married to another Muslim,
De Guzman, under Islamic rites;
2. Zamoranos and De Guzmans marriage ceremony under civil rites
before Judge Laguio did not remove their marriage from the ambit of
P.D. No. 1083;
3. Corollary to paragraph 1, Zamoranos divorce by talaq to De
Guzman severed their marriage ties;
4. "Accordingly, matters relating to the marriages and divorce of
[Zamoranos] and her first husband, Jesus de Guzman[, are]
governed by the Muslim Code and [the] divorce proceedings properly
within the exclusive original jurisdiction of the Sharia Circuit Court."
5. Zamoranos remarried Pacasum, another Muslim, under Islamic
rites; and
6. On the whole, regular courts, in particular, RTC, Branch 6, Iligan
City, have no jurisdiction to hear and decide the case for declaration
of nullity of marriage entered into under P.D. No. 1083 because it is
the Sharia Circuit Court that has original jurisdiction over the subject
matter.
For his part, Pacasum, although he agrees with the dismissal of Zamoranos
petition, raises a quarrel with the aforementioned conclusions of the CA.
Pacasum vehemently denies that Zamoranos is a Muslim, who was previously
married and divorced under Islamic rites, and who entered into a second
marriage with him, likewise under Islamic rites.

We impale the foregoing issues into the following:
1. Whether the CA correctly dismissed Zamoranos petition for
certiorari; and
2. Whether the RTCs, Branch 2, Iligan City and the CAs separate
factual findings that Zamoranos is a Muslim are correct.
As a rule, certiorari lies when: (1) a tribunal, board, or officer exercises
judicial or quasi-judicial functions; (2) the tribunal, board, or officer has
acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction; and (3) there is no
appeal, or any plain, speedy, and adequate remedy in the ordinary course of
law.19
The writ of certiorari serves to keep an inferior court within the bounds of its
jurisdiction or to prevent it from committing such a grave abuse of discretion
amounting to excess or lack of jurisdiction, or to relieve parties from arbitrary
acts of courtsacts which courts have no power or authority in law to
perform.20
The denial of a motion to quash, as in the case at bar, is not appealable. It is
an interlocutory order which cannot be the subject of an appeal. 21
Moreover, it is settled that a special civil action for certiorari and prohibition is
not the proper remedy to assail the denial of a motion to quash an
information. The established rule is that, when such an adverse interlocutory
order is rendered, the remedy is not to resort forthwith to certiorari or
prohibition, but to continue with the case in due course and, when an
unfavorable verdict is handed down, to take an appeal in the manner
authorized by law.22
However, on a number of occasions, we have recognized that in certain
situations, certiorari is considered an appropriate remedy to assail an
interlocutory order, specifically the denial of a motion to quash. We have
recognized the propriety of the following exceptions: (a) when the court
issued the order without or in excess of jurisdiction or with grave abuse of
discretion; (b) when the interlocutory order is patently erroneous and the
remedy of appeal would not afford adequate and expeditious relief; (c) in the
interest of a "more enlightened and substantial justice"; 23 (d) to promote
CONFLICTS | Feb 11| 51
public welfare and public policy;24 and (e) when the cases "have attracted
nationwide attention, making it essential to proceed with dispatch in the
consideration thereof."25 The first four of the foregoing exceptions occur in
this instance.
Contrary to the asseverations of the CA, the RTC, Branch 6, Iligan City,
committed an error of jurisdiction, not simply an error of judgment, in
denying Zamoranos motion to quash.
First, we dispose of the peripheral issue raised by Zamoranos on the
conclusiveness of judgment made by the RTC, Branch 2, Iligan City, which
heard the petition for declaration of nullity of marriage filed by Pacasum on
the ground that his marriage to Zamoranos was a bigamous marriage. In that
case, the decision of which is already final and executory, the RTC, Branch 2,
Iligan City, dismissed the petition for declaration of nullity of marriage for
lack of jurisdiction over the subject matter by the regular civil courts. The
RTC, Branch 2, Iligan City, declared that it was the Sharia Circuit Court which
had jurisdiction over the subject matter thereof.
Section 47, Rule 39 of the Rules of Court provides for the principle of res
judicata. The provision reads:
SEC. 47. Effect of judgments or final orders. The effect of a judgment or
final order rendered by a court of the Philippines, having jurisdiction to
pronounce the judgment or final order, may be as follows:
(a) In case of a judgment or final order against a specific thing, or in respect
to the probate of a will, or the administration of the estate of a deceased
person, or in respect to the personal, political, or legal condition or status of
a particular person or his relationship to another, the judgment or final order
is conclusive upon the title to the thing, the will or administration, or the
condition, status or relationship of the person; however, the probate of a will
or granting of letters of administration shall only be prima facie evidence of
the death of the testator or intestate.
The requisites for res judicata or bar by prior judgment are:
(1) The former judgment or order must be final;
(2) It must be a judgment on the merits;

(3) It must have been rendered by a court having jurisdiction over
the subject matter and the parties; and
(4) There must be between the first and second actions, identity of
parties, subject matter, and cause of action. 26
The second and fourth elements of res judicata are not present in this case.
Suffice it to state that the judgment rendered by RTC, Branch 2, Iligan City,
was not a judgment on the merits. The lower court simply dismissed the
petition for declaration of nullity of marriage since it found that the Sharia
Circuit Court had jurisdiction to hear the dissolution of the marriage of
Muslims who wed under Islamic rites.
Nonetheless, the RTC, Branch 6, Iligan City, which heard the case for Bigamy,
should have taken cognizance of the categorical declaration of the RTC,
Branch 2, Iligan City, that Zamoranos is a Muslim, whose first marriage to
another Muslim, De Guzman, was valid and recognized under Islamic law. In
fact, the same court further declared that Zamoranos divorce from De
Guzman validly severed their marriage ties. Apart from that, Zamoranos
presented the following evidence:
1. Affidavit of Confirmation executed by the Ustadz, Abdullah Ha-Ja-
27
Utto, who solemnized the marriage of Zamoranos and De Guzman
under Islamic rites, declaring under oath that:
1. I am an Ustadz, in accordance with the Muslim laws and as
such, authorized to solemnize the marriages among Muslims;
2. On May 3, 1982, after I was shown the documents
attesting that both parties are believers of Islam, I
solemnized the marriage of Jesus (Mohamad) de Guzman and
Marietta (Mariam) Zamoranos in accordance with Muslim
Personal Laws in Isabela, Basilan;
3. Sometime in 1992[,] Mr. Mohamad de Guzman and his
former wife, Mariam Zamoranos came to see me and asked
my assistance to have their marriage and the subsequent
Talaq by the wife, which divorce became irrevocable pursuant
to the provisions of Presidential Decree No. 1083; registered
[by] the Sharia Circuit Court in the province of Basilan; and,
CONFLICTS | Feb 11| 52
after I was convinced that their divorce was in order, I
accompanied them to the [C]lerk of [C]ourt of the Sharia
Circuit Court;
4. Satisfied that their marriage and the subsequent divorce
were in accordance with Muslim personal laws, the Clerk of
Court registered their documents;
5. In June of 1993, the old Capitol building, where the Sharia
Circuit Court was housed, was razed to the ground; and, I
found out later that all the records, effects and office
equipments of the Sharia Circuit Court were totally lost [in]
the fire;
6. This is executed freely and voluntarily in order to establish
the above statements of fact; and
7. This is issued upon the request of Mr. De Guzman for
whatever legal purposes it may serve.
2. Certification28 issued by Judge Kaudri L. Jainul (Judge Jainul),
which confirmed the divorce agreement between Zamoranos and De
Guzman.
3. Affidavit29 executed by Judge Uyag P. Usman (Judge Usman),
former Clerk of Court of Judge Jainul at the time of the confirmation
of Zamoranos and De Guzmans divorce agreement by the latter.
Judge Usmans affidavit reads, in pertinent part:
1. I am the presiding Judge of the Sharias Circuit Court in
the City of Pagadian;
2. The first time that a Sharias Circuit court was established
in the Island Province of Basilan was in 1985, with the
Honorable Kaudri L. Jainul, as the Presiding Judge, while I
was then the First Clerk of Court of the Basilan Sharias
Circuit Court;

3. The Sharias Circuit Council in the Island Province of
Basilan was housed at the old Capitol Building, in the City of
Isabela, Basilan, Philippines;
4. As the Clerk of Court of the Sharias Circuit Court since
1985, I can recall that in 1992, Mr. Jesus (Mohamad) de
Guzman, who is a province mate of mine in Basilan, and his
former wife, Marietta (Mariam) Zamoranos, jointly asked for
the confirmation of their Talaq, by the wife; which divorce
became irrevocable pursuant to the provisions of Presidential
Decree No. 1083;
5. In June of 1993, all the records of the Sharias Circuit
Court were lost by reason of the fire that gutted down the old
Capitol Building in the City of Isabela;
6. This is executed freely and voluntarily in order to establish
the above statements of fact.
From the foregoing declarations of all three persons in authority, two of
whom are officers of the court, it is evident that Zamoranos is a Muslim who
married another Muslim, De Guzman, under Islamic rites. Accordingly, the
nature, consequences, and incidents of such marriage are governed by P.D.
No. 1083.
True, the Sharia Circuit Court is not vested with jurisdiction over offenses
penalized under the RPC. Certainly, the RTC, Branch 6, Iligan City, is correct
when it declared that:
The Regional Trial Courts are vested the exclusive and original jurisdiction in
all criminal cases not within the exclusive original jurisdiction of any court,
tribunal, or body. [Sec. 20 (b), BP Blg. 129] The Code of Muslim Personal
Laws (PD 1083) created the Sharia District Courts and Sharia Circuit Courts
with limited jurisdiction. Neither court was vested jurisdiction over criminal
prosecution of violations of the Revised Penal Code. There is nothing in PD
1083 that divested the Regional Trial Courts of its jurisdiction to try and
decide cases of bigamy. Hence, this Court has jurisdiction over this case. 30
Nonetheless, it must be pointed out that even in criminal cases, the trial
court must have jurisdiction over the subject matter of the offense. In this
CONFLICTS | Feb 11| 53
case, the charge of Bigamy hinges on Pacasums claim that Zamoranos is not
a Muslim, and her marriage to De Guzman was governed by civil law. This is
obviously far from the truth, and the fact of Zamoranos Muslim status should
have been apparent to both lower courts, the RTC, Branch 6, Iligan City, and
the CA.
The subject matter of the offense of Bigamy dwells on the accused
contracting a second marriage while a prior valid one still subsists and has
yet to be dissolved. At the very least, the RTC, Branch 6, Iligan City, should
have suspended the proceedings until Pacasum had litigated the validity of
Zamoranos and De Guzmans marriage before the Sharia Circuit Court and
had successfully shown that it had not been dissolved despite the divorce by
talaq entered into by Zamoranos and De Guzman.
Zamoranos was correct in filing the petition for certiorari before the CA when
her liberty was already in jeopardy with the continuation of the criminal
proceedings against her.
In a pluralist society such as that which exists in the Philippines, P.D. No.
1083, or the Code of Muslim Personal Laws, was enacted to "promote the
advancement and effective participation of the National Cultural Communities
x x x, [and] the State shall consider their customs, traditions, beliefs and
interests in the formulation and implementation of its policies."
Trying Zamoranos for Bigamy simply because the regular criminal courts
have jurisdiction over the offense defeats the purpose for the enactment of
the Code of Muslim Personal Laws and the equal recognition bestowed by the
State on Muslim Filipinos.
Article 3, Title II, Book One of P.D. No. 1083 provides:
TITLE II.
CONSTRUCTION OF CODE AND DEFINITION OF TERMS
Article 3. Conflict of provisions.
(1) In case of conflict between any provision of this Code and laws of
general application, the former shall prevail.
 CONFLICTS | Feb 11| 54

(2) Should the conflict be between any provision of this Code and (2) In case of marriage between a Muslim and a non-Muslim,
special laws or laws of local application, the latter shall be liberally solemnized not in accordance with Muslim law or this Code, the Civil
construed in order to carry out the former. Code of the Philippines shall apply.

(3) The provisions of this Code shall be applicable only to Muslims xxxx
and nothing herein shall be construed to operate to the prejudice of a
non-Muslim. Chapter Two
MARRIAGE (NIKAH)
In Justice Jainal Rasul and Dr. Ibrahim Ghazalis Commentaries and
Jurisprudence on the Muslim Code of the Philippines, the two experts on the Section 1. Requisites of Marriage.
subject matter of Muslim personal laws expound thereon:
xxxx
The first provision refers to a situation where in case of conflict between any
provision of this Code and laws of general application, this Code shall prevail. Section 3. Subsequent Marriages
For example, there is conflict between the provision on bigamy under the
Revised Penal Code which is a law of general application and Article 27 of this xxxx
Code, on subsequent marriage, the latter shall prevail, in the sense that as
long as the subsequent marriage is solemnized "in accordance with" the
Article 29. By divorcee.
Muslim Code, the provision of the Revised Penal Code on bigamy will not
apply. The second provision refers to a conflict between the provision of this
(1) No woman shall contract a subsequent marriage unless she has observed
Code which is a special law and another special law or laws of local
an idda of three monthly courses counted from the date of divorce. However,
application. The latter should be liberally construed to carry out the provision
if she is pregnant at the time of the divorce, she may remarry only after
of the Muslim Code.31
delivery.

On Marriage, Divorce, and Subsequent Marriages, P.D. No. 1083 provides:

xxxx

TITLE II. MARRIAGE AND DIVORCE

Chapter Three
DIVORCE (TALAQ)
Chapter One
APPLICABILITY CLAUSE
Section 1. Nature and Form

Article 13. Application.

Article 45. Definition and forms. Divorce is the formal dissolution of the
marriage bond in accordance with this Code to be granted only after the
(1) The provisions of this Title shall apply to marriage and divorce
exhaustion of all possible means of reconciliation between the spouses. It
wherein both parties are Muslims, or wherein only the male party is a
may be effected by:
Muslim and the marriage is solemnized in accordance with Muslim law
or this Code in any part of the Philippines.
(a) Repudiation of the wife by the husband (talaq);

xxxx

Article 46. Divorce by talaq.
(1) A divorce by talaq may be effected by the husband in a single repudiation
of his wife during her non-menstrual period (tuhr) within which he has totally
abstained from carnal relation with her. Any number of repudiations made
during one tular shall constitute only one repudiation and shall become
irrevocable after the expiration of the prescribed idda.
(2) A husband who repudiates his wife, either for the first or second time,
shall have the right to take her back (ruju) within the prescribed idda by
resumption of cohabitation without need of a new contract of marriage.
Should he fail to do so, the repudiation shall become irrevocable (talaq bain
sugra).
xxxx
Article 54. Effects of irrevocable talaq; or faskh. A talaq or faskh, as soon as
it becomes irrevocable, shall have the following effects:
(a) The marriage bond shall be severed and the spouses may
contract another marriage in accordance with this Code;
(b) The spouses shall lose their mutual rights of inheritance;
(c) The custody of children shall be determined in accordance with
Article 78 of this Code;
(d) The wife shall be entitled to recover from the husband her whole
dower in case the talaq has been effected after the consummation of
the marriage, or one-half thereof if effected before its consummation;
(e) The husband shall not be discharged from his obligation to give
support in accordance with Article 67; and
(f) The conjugal partnership if stipulated in the marriage settlements,
shall be dissolved and liquidated.
For our edification, we refer once again to Justice Rasul and Dr. Ghazalis
Commentaries and Jurisprudence on the Muslim Code of the Philippines:
CONFLICTS | Feb 11| 55
If both parties are Muslims, there is a presumption that the Muslim Code or
Muslim law is complied with. If together with it or in addition to it, the
marriage is likewise solemnized in accordance with the Civil Code of the
Philippines, in a so-called combined Muslim-Civil marriage rites whichever
comes first is the validating rite and the second rite is merely ceremonial
one. But, in this case, as long as both parties are Muslims, this Muslim Code
will apply. In effect, two situations will arise, in the application of this Muslim
Code or Muslim law, that is, when both parties are Muslims and when the
male party is a Muslim and the marriage is solemnized in accordance with
Muslim Code or Muslim law. A third situation occur[s] when the Civil Code of
the Philippines will govern the marriage and divorce of the parties, if the male
party is a Muslim and the marriage is solemnized in accordance with the Civil
Code.32
Moreover, the two experts, in the same book, unequivocally state that one of
the effects of irrevocable talaq, as well as other kinds of divorce, refers to
severance of matrimonial bond, entitling one to remarry.331avvphi1
It stands to reason therefore that Zamoranos divorce from De Guzman, as
confirmed by an Ustadz and Judge Jainul of the Sharia Circuit Court, and
attested to by Judge Usman, was valid, and, thus, entitled her to remarry
Pacasum in 1989. Consequently, the RTC, Branch 6, Iligan City, is without
jurisdiction to try Zamoranos for the crime of Bigamy.
WHEREFORE, the petition in G.R. No. 193902 is GRANTED. The petition in
G.R. No. 194075 is DENIED. The Decision of the Court of Appeals in CA-G.R.
SP No. 03525-MIN is REVERSED and SET ASIDE. Accordingly, the Motion to
Quash the Information in Criminal Case No. 06-12305 for Bigamy is
GRANTED.
SO ORDERED.
 CONFLICTS | Feb 11| 56

DAISYLYN TIROL STO. TOMAS and The SOLICITOR

GENERAL, Respondents.

DECISION

BRION, J.:

Before the Court is a direct appeal from the decision 1 of the Regional Trial
Court (RTC) of Laoag City, Branch 11, elevated via a petition for review on
certiorari2 under Rule 45 of the Rules of Court (present petition).

Petitioner Gerbert R. Corpuz was a former Filipino citizen who acquired

Canadian citizenship through naturalization on November 29, 2000. 3 On
January 18, 2005, Gerbert married respondent Daisylyn T. Sto. Tomas, a
Filipina, in Pasig City.4 Due to work and other professional commitments,
Gerbert left for Canada soon after the wedding. He returned to the
Philippines sometime in April 2005 to surprise Daisylyn, but was shocked to
discover that his wife was having an affair with another man. Hurt and
disappointed, Gerbert returned to Canada and filed a petition for divorce. The
Superior Court of Justice, Windsor, Ontario, Canada granted Gerberts petition
for divorce on December 8, 2005. The divorce decree took effect a month
later, on January 8, 2006.5

Two years after the divorce, Gerbert has moved on and has found another
Filipina to love. Desirous of marrying his new Filipina fiance in the
Philippines, Gerbert went to the Pasig City Civil Registry Office and registered
the Canadian divorce decree on his and Daisylyns marriage certificate.
Despite the registration of the divorce decree, an official of the National
Statistics Office (NSO) informed Gerbert that the marriage between him and
Daisylyn still subsists under Philippine law; to be enforceable, the foreign
divorce decree must first be judicially recognized by a competent Philippine
court, pursuant to NSO Circular No. 4, series of 1982. 6

Accordingly, Gerbert filed a petition for judicial recognition of foreign divorce

and/or declaration of marriage as dissolved (petition) with the RTC. Although
G.R. No. 186571 August 11, 2010 summoned, Daisylyn did not file any responsive pleading but submitted
instead a notarized letter/manifestation to the trial court. She offered no
opposition to Gerberts petition and, in fact, alleged her desire to file a similar
GERBERT R. CORPUZ, Petitioner,
case herself but was prevented by financial and personal circumstances. She,
vs.
thus, requested that she be considered as a party-in-interest with a similar
prayer to Gerberts.

In its October 30, 2008 decision, 7 the RTC denied Gerberts petition. The RTC
concluded that Gerbert was not the proper party to institute the action for
judicial recognition of the foreign divorce decree as he is a naturalized
Canadian citizen. It ruled that only the Filipino spouse can avail of the
remedy, under the second paragraph of Article 26 of the Family Code, 8 in
order for him or her to be able to remarry under Philippine law. 9 Article 26 of
the Family Code reads:
Art. 26. All marriages solemnized outside the Philippines, in accordance with
the laws in force in the country where they were solemnized, and valid there
as such, shall also be valid in this country, except those prohibited under
Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the Filipino spouse shall likewise
have capacity to remarry under Philippine law.
This conclusion, the RTC stated, is consistent with the legislative intent
behind the enactment of the second paragraph of Article 26 of the Family
Code, as determined by the Court in Republic v. Orbecido III; 10 the provision
was enacted to "avoid the absurd situation where the Filipino spouse remains
married to the alien spouse who, after obtaining a divorce, is no longer
married to the Filipino spouse."11
THE PETITION
From the RTCs ruling,12 Gerbert filed the present petition.13
Gerbert asserts that his petition before the RTC is essentially for declaratory
relief, similar to that filed in Orbecido; he, thus, similarly asks for a
determination of his rights under the second paragraph of Article 26 of the
Family Code. Taking into account the rationale behind the second paragraph
of Article 26 of the Family Code, he contends that the provision applies as
well to the benefit of the alien spouse. He claims that the RTC ruling unduly
stretched the doctrine in Orbecido by limiting the standing to file the petition
only to the Filipino spouse an interpretation he claims to be contrary to the
essence of the second paragraph of Article 26 of the Family Code. He
considers himself as a proper party, vested with sufficient legal interest, to
institute the case, as there is a possibility that he might be prosecuted for
bigamy if he marries his Filipina fiance in the Philippines since two marriage
CONFLICTS | Feb 11| 57
certificates, involving him, would be on file with the Civil Registry Office. The
Office of the Solicitor General and Daisylyn, in their respective
Comments,14 both support Gerberts position.
Essentially, the petition raises the issue of whether the second paragraph of
Article 26 of the Family Code extends to aliens the right to petition a court of
this jurisdiction for the recognition of a foreign divorce decree.
THE COURTS RULING
The alien spouse can claim no right under the second paragraph of Article 26
of the Family Code as the substantive right it establishes is in favor of the
Filipino spouse
The resolution of the issue requires a review of the legislative history and
intent behind the second paragraph of Article 26 of the Family Code.
The Family Code recognizes only two types of defective marriages
void15 and voidable16 marriages. In both cases, the basis for the judicial
declaration of absolute nullity or annulment of the marriage exists before or
at the time of the marriage. Divorce, on the other hand, contemplates the
dissolution of the lawful union for cause arising after the marriage. 17 Our
family laws do not recognize absolute divorce between Filipino citizens. 18
Recognizing the reality that divorce is a possibility in marriages between a
Filipino and an alien, President Corazon C. Aquino, in the exercise of her
legislative powers under the Freedom Constitution, 19 enacted Executive Order
No. (EO) 227, amending Article 26 of the Family Code to its present wording,
as follows:
Art. 26. All marriages solemnized outside the Philippines, in accordance with
the laws in force in the country where they were solemnized, and valid there
as such, shall also be valid in this country, except those prohibited under
Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the Filipino spouse shall likewise
have capacity to remarry under Philippine law.

Through the second paragraph of Article 26 of the Family Code, EO 227
effectively incorporated into the law this Courts holding in Van Dorn v.
Romillo, Jr.20 and Pilapil v. Ibay-Somera.21 In both cases, the Court refused to
acknowledge the alien spouses assertion of marital rights after a foreign
courts divorce decree between the alien and the Filipino. The Court, thus,
recognized that the foreign divorce had already severed the marital bond
between the spouses. The Court reasoned in Van Dorn v. Romillo that:
To maintain x x x that, under our laws, [the Filipino spouse] has to be
considered still married to [the alien spouse] and still subject to a wife's
obligations x x x cannot be just. [The Filipino spouse] should not be obliged
to live together with, observe respect and fidelity, and render support to [the
alien spouse]. The latter should not continue to be one of her heirs with
possible rights to conjugal property. She should not be discriminated against
in her own country if the ends of justice are to be served. 22
As the RTC correctly stated, the provision was included in the law "to avoid
the absurd situation where the Filipino spouse remains married to the alien
spouse who, after obtaining a divorce, is no longer married to the Filipino
spouse."23 The legislative intent is for the benefit of the Filipino spouse, by
clarifying his or her marital status, settling the doubts created by the divorce
decree. Essentially, the second paragraph of Article 26 of the Family Code
provided the Filipino spouse a substantive right to have his or her marriage
to the alien spouse considered as dissolved, capacitating him or her to
remarry.24 Without the second paragraph of Article 26 of the Family Code, the
judicial recognition of the foreign decree of divorce, whether in a proceeding
instituted precisely for that purpose or as a related issue in another
proceeding, would be of no significance to the Filipino spouse since our laws
do not recognize divorce as a mode of severing the marital bond; 25 Article 17
of the Civil Code provides that the policy against absolute divorces cannot be
subverted by judgments promulgated in a foreign country. The inclusion of
the second paragraph in Article 26 of the Family Code provides the direct
exception to this rule and serves as basis for recognizing the dissolution of
the marriage between the Filipino spouse and his or her alien spouse.
Additionally, an action based on the second paragraph of Article 26 of the
Family Code is not limited to the recognition of the foreign divorce decree. If
the court finds that the decree capacitated the alien spouse to remarry, the
courts can declare that the Filipino spouse is likewise capacitated to contract
another marriage. No court in this jurisdiction, however, can make a similar
declaration for the alien spouse (other than that already established by the
CONFLICTS | Feb 11| 58
decree), whose status and legal capacity are generally governed by his
national law.26
Given the rationale and intent behind the enactment, and the purpose of the
second paragraph of Article 26 of the Family Code, the RTC was correct in
limiting the applicability of the provision for the benefit of the Filipino spouse.
In other words, only the Filipino spouse can invoke the second paragraph of
Article 26 of the Family Code; the alien spouse can claim no right under this
provision.
The foreign divorce decree is presumptive evidence of a right that clothes the
party with legal interest to petition for its recognition in this jurisdiction
We qualify our above conclusion i.e., that the second paragraph of Article
26 of the Family Code bestows no rights in favor of aliens with the
complementary statement that this conclusion is not sufficient basis to
dismiss Gerberts petition before the RTC. In other words, the unavailability
of the second paragraph of Article 26 of the Family Code to aliens does not
necessarily strip Gerbert of legal interest to petition the RTC for the
recognition of his foreign divorce decree. The foreign divorce decree itself,
after its authenticity and conformity with the aliens national law have been
duly proven according to our rules of evidence, serves as a presumptive
evidence of right in favor of Gerbert, pursuant to Section 48, Rule 39 of the
Rules of Court which provides for the effect of foreign judgments. This
Section states:
SEC. 48. Effect of foreign judgments or final orders.The effect of a
judgment or final order of a tribunal of a foreign country, having jurisdiction
to render the judgment or final order is as follows:
(a) In case of a judgment or final order upon a specific thing, the
judgment or final order is conclusive upon the title of the thing; and
(b) In case of a judgment or final order against a person, the
judgment or final order is presumptive evidence of a right as between
the parties and their successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence of a
want of jurisdiction, want of notice to the party, collusion, fraud, or clear
mistake of law or fact.

To our mind, direct involvement or being the subject of the foreign judgment
is sufficient to clothe a party with the requisite interest to institute an action
before our courts for the recognition of the foreign judgment. In a divorce
situation, we have declared, no less, that the divorce obtained by an alien
abroad may be recognized in the Philippines, provided the divorce is valid
according to his or her national law.27
The starting point in any recognition of a foreign divorce judgment is the
acknowledgment that our courts do not take judicial notice of foreign
judgments and laws. Justice Herrera explained that, as a rule, "no sovereign
is bound to give effect within its dominion to a judgment rendered by a
tribunal of another country." 28 This means that the foreign judgment and its
authenticity must be proven as facts under our rules on evidence, together
with the aliens applicable national law to show the effect of the judgment on
the alien himself or herself.29 The recognition may be made in an action
instituted specifically for the purpose or in another action where a party
invokes the foreign decree as an integral aspect of his claim or defense.
In Gerberts case, since both the foreign divorce decree and the national law
of the alien, recognizing his or her capacity to obtain a divorce, purport to be
official acts of a sovereign authority, Section 24, Rule 132 of the Rules of
Court comes into play. This Section requires proof, either by (1) official
publications or (2) copies attested by the officer having legal custody of the
documents. If the copies of official records are not kept in the Philippines,
these must be (a) accompanied by a certificate issued by the proper
diplomatic or consular officer in the Philippine foreign service stationed in the
foreign country in which the record is kept and (b) authenticated by the seal
of his office.
The records show that Gerbert attached to his petition a copy of the divorce
decree, as well as the required certificates proving its authenticity,30 but
failed to include a copy of the Canadian law on divorce. 31 Under this situation,
we can, at this point, simply dismiss the petition for insufficiency of
supporting evidence, unless we deem it more appropriate to remand the case
to the RTC to determine whether the divorce decree is consistent with the
Canadian divorce law.
We deem it more appropriate to take this latter course of action, given the
Article 26 interests that will be served and the Filipina wifes (Daisylyns)
obvious conformity with the petition. A remand, at the same time, will allow
other interested parties to oppose the foreign judgment and overcome a
CONFLICTS | Feb 11| 59
petitioners presumptive evidence of a right by proving want of jurisdiction,
want of notice to a party, collusion, fraud, or clear mistake of law or fact.
Needless to state, every precaution must be taken to ensure conformity with
our laws before a recognition is made, as the foreign judgment, once
recognized, shall have the effect of res judicata 32 between the parties, as
provided in Section 48, Rule 39 of the Rules of Court. 33
In fact, more than the principle of comity that is served by the practice of
reciprocal recognition of foreign judgments between nations, the res judicata
effect of the foreign judgments of divorce serves as the deeper basis for
extending judicial recognition and for considering the alien spouse bound by
its terms. This same effect, as discussed above, will not obtain for the Filipino
spouse were it not for the substantive rule that the second paragraph of
Article 26 of the Family Code provides.
Considerations beyond the recognition of the foreign divorce decree
As a matter of "housekeeping" concern, we note that the Pasig City Civil
Registry Office has already recorded the divorce decree on Gerbert and
Daisylyns marriage certificate based on the mere presentation of the
decree.34We consider the recording to be legally improper; hence, the need to
draw attention of the bench and the bar to what had been done.
Article 407 of the Civil Code states that "[a]cts, events and judicial decrees
concerning the civil status of persons shall be recorded in the civil register."
The law requires the entry in the civil registry of judicial decrees that produce
legal consequences touching upon a persons legal capacity and status, i.e.,
those affecting "all his personal qualities and relations, more or less
permanent in nature, not ordinarily terminable at his own will, such as his
being legitimate or illegitimate, or his being married or not." 35
A judgment of divorce is a judicial decree, although a foreign one, affecting a
persons legal capacity and status that must be recorded. In fact, Act No.
3753 or the Law on Registry of Civil Status specifically requires the
registration of divorce decrees in the civil registry:
Sec. 1. Civil Register. A civil register is established for recording the civil
status of persons, in which shall be entered:
(a) births;

(b) deaths;
(c) marriages;
(d) annulments of marriages;
(e) divorces;
(f) legitimations;
(g) adoptions;
(h) acknowledgment of natural children;
(i) naturalization; and
(j) changes of name.
xxxx
Sec. 4. Civil Register Books. The local registrars shall keep and preserve in
their offices the following books, in which they shall, respectively make the
proper entries concerning the civil status of persons:
(1) Birth and death register;
(2) Marriage register, in which shall be entered not only the
marriages solemnized but also divorces and dissolved marriages.
(3) Legitimation, acknowledgment, adoption, change of name and
naturalization register.
But while the law requires the entry of the divorce decree in the civil registry,
the law and the submission of the decree by themselves do not ipso facto
authorize the decrees registration. The law should be read in relation with
the requirement of a judicial recognition of the foreign judgment before it can
be given res judicata effect. In the context of the present case, no judicial
order as yet exists recognizing the foreign divorce decree. Thus, the Pasig
City Civil Registry Office acted totally out of turn and without authority of law
when it annotated the Canadian divorce decree on Gerbert and Daisylyns
CONFLICTS | Feb 11| 60
marriage certificate, on the strength alone of the foreign decree presented by
Gerbert.
Evidently, the Pasig City Civil Registry Office was aware of the requirement of
a court recognition, as it cited NSO Circular No. 4, series of 1982, 36 and
Department of Justice Opinion No. 181, series of 1982 37 both of which
required a final order from a competent Philippine court before a foreign
judgment, dissolving a marriage, can be registered in the civil registry, but it,
nonetheless, allowed the registration of the decree. For being contrary to law,
the registration of the foreign divorce decree without the requisite judicial
recognition is patently void and cannot produce any legal effect.1avvphi1
Another point we wish to draw attention to is that the recognition that the
RTC may extend to the Canadian divorce decree does not, by itself, authorize
the cancellation of the entry in the civil registry. A petition for recognition of a
foreign judgment is not the proper proceeding, contemplated under the Rules
of Court, for the cancellation of entries in the civil registry.
Article 412 of the Civil Code declares that "no entry in a civil register shall be
changed or corrected, without judicial order." The Rules of Court supplements
Article 412 of the Civil Code by specifically providing for a special remedial
proceeding by which entries in the civil registry may be judicially cancelled or
corrected. Rule 108 of the Rules of Court sets in detail the jurisdictional and
procedural requirements that must be complied with before a judgment,
authorizing the cancellation or correction, may be annotated in the civil
registry. It also requires, among others, that the verified petition must be
filed with the RTC of the province where the corresponding civil registry is
located;38 that the civil registrar and all persons who have or claim any
interest must be made parties to the proceedings; 39 and that the time and
place for hearing must be published in a newspaper of general
circulation.40 As these basic jurisdictional requirements have not been met in
the present case, we cannot consider the petition Gerbert filed with the RTC
as one filed under Rule 108 of the Rules of Court.
We hasten to point out, however, that this ruling should not be construed as
requiring two separate proceedings for the registration of a foreign divorce
decree in the civil registry one for recognition of the foreign decree and
another specifically for cancellation of the entry under Rule 108 of the Rules
of Court. The recognition of the foreign divorce decree may be made in a
Rule 108 proceeding itself, as the object of special proceedings (such as that
in Rule 108 of the Rules of Court) is precisely to establish the status or right

of a party or a particular fact. Moreover, Rule 108 of the Rules of Court can
serve as the appropriate adversarial proceeding 41 by which the applicability of
the foreign judgment can be measured and tested in terms of jurisdictional
infirmities, want of notice to the party, collusion, fraud, or clear mistake of
law or fact.
WHEREFORE, we GRANT the petition for review on certiorari, and REVERSE
the October 30, 2008 decision of the Regional Trial Court of Laoag City,
CONFLICTS | Feb 11| 61
Branch 11, as well as its February 17, 2009 order. We order the REMAND of
the case to the trial court for further proceedings in accordance with our
ruling above. Let a copy of this Decision be furnished the Civil Registrar
General. No costs.
SO ORDERED.