Terre vs.

Terre

A.M. No. 2349 July 3, 1992

Topic: Judicial Declaration of Nullity of a Void Ab Initio Marriage; Disbarment

Doctrine: The absolute nullity of previous marriage may be invoked for purposes of remarriage on the
basis solely of a final judgment declaring such previous marriage void” for purposes of determining
whether a person is legally free to contract a second marriage, a judicial declaration that the first
marriage was null and void ab initio is essential

Facts: Dorothy Terre and respondent met for the first time in 1979 as fourth year high school classmates
in Cadiz City High School); she was then married to Merlito Bercenilla, while respondent was single;
respondent was aware of her marital status; it was then that respondent started courting her but
nothing happened of the courtship; they [complainant and respondent] moved to Manila were they
respectively pursued their education, respondent as a law student at the Lyceum University; respondent
continued courting Dorothy, with more persistence; she decided nothing would come of it since she was
married but he [respondent] explained to her that their marriage was void ab initio since she and her
first husband were first cousins; convinced by his explanation and having secured favorable advice from
her mother and ex-in-laws, she agreed to marry him [respondent]; in their marriage license, despite her
[complainant's] objection, he [respondent] wrote "single" as her status explaining that since her
marriage was void ab initio, there was no need to go to court to declare it as such ; they were married
before Judge Priscilla Mijares of the City Court of Manila on June 14, 1977); Jason Terre was born of their
union on June 25, 1981; all through their married state up to the time he [respondent] disappeared in
1981, complainant supported respondent, in addition to the allowance the latter was getting from his
parents; she was unaware of the reason for his disappearance until she found out later that respondent
married a certain Vilma [sic] Malicdem; she then filed a case for abandonment of minor with the City
Fiscal of Pasay City which was subsequently filed before City Court of Pasay City as Criminal Case No.
816159; she likewise filed a case for bigamy against respondent and Helina Malicdem with the office of
the Provincial Fiscal of Pangasinan, where a prima facie case was found to exist; complainant filed an
administrative case against respondent with the Commission on Audit where he was employed, which
case however was considered closed for being moot and academic when respondent was considered
automatically separated from the service for having gone on absence without official leave.

Issue: WHETHER OR NOT A JUDICIAL DECLARATION FOR THE NULLITY OF A MARRIAGE OF A VOID AB
INITIO MARRIAGE MUST BE OBTAINED FOR CONTRACTING A SUBSEQUENT MARRIAGE? WHETHER OR
NOT JORDAN TERRE (RESPONDENT) SHOULD BE DISBARRED FOR CONTRACTING A BIGAMOUS
MARRIAGE?

Held: There is no dispute over the fact that complainant Dorothy Terre and respondent Jordan Terre
contracted marriage on 14 July 1977 before Judge Priscilla Mijares. There is further no dispute over the
fact that on 3 May 1981, respondent Jordan Terre married Helina Malicdem in Dasol, Pangasinan. When
the second marriage was entered into, respondent's prior marriage with complainant was subsisting, no
judicial action having been initiated or any judicial declaration obtained as to the nullity of such prior
marriage of respondent with complainant.
Respondent Jordan Terre sought to defend himself by claiming that he had believed in good faith that his
prior marriage with complainant Dorothy Terre was null and void ab initio and that no action for a
judicial declaration of nullity was necessary.

The Supreme Court considered Jordan’s claim unmeritorious. Respondent has not rebutted
complainant's evidence as to the basic facts which underscores the bad faith of respondent Terre. The
same defense is the same argument by which he had inveigled complainant into believing that her prior
marriage to Merlito A. Bercenilla being incestuous and void ab initio (Dorothy and Merlito being
allegedly first cousins to each other), she was free to contract a second marriage with the respondent.
Respondent Jordan Terre, being a lawyer, knew or should have known that such an argument ran
counter to the prevailing case law of this Court which holds that for purposes of determining whether a
person is legally free to contract a second marriage, a judicial declaration that the first marriage was null
and void ab initio is essential. Even if we were to assume, arguendo merely, that Jordan Terre held that
mistaken belief in good faith, the same result will follow. For if we are to hold Jordan Terre to his own
argument, his first marriage to complainant Dorothy Terre must be deemed valid, with the result that his
second marriage to Helina Malicdem must be regarded as bigamous and criminal in character.

That the moral character of respondent Jordan Terre was deeply flawed is shown by other
circumstances. As noted, he convinced the complainant that her prior marriage to Bercenilla was null
and void ab initio, that she was still legally single and free to marry him. When complainant and
respondent had contracted their marriage, respondent went through law school while being supported
by complainant, with some assistance from respondent's parents. After respondent had finished his law
course and gotten complainant pregnant, respondent abandoned the complainant without support and
without the wherewithal for delivering his own child safely in a hospital.

In Pomperada v. Jochico, the Court, in rejecting a petition to be allowed to take the oath as a member of
the Bar and to sign the Roll of Attorneys, said through Mme. Justice Melencio-Herrera:

It is evident that respondent fails to meet the standard of moral fitness for membership in the legal
profession. Whether the marriage was a joke as respondent claims, or a trick played on her as claimed by
complainant, it does not speak well of respondent's moral values. Respondent had made a mockery of
marriage, a basic social institution which public policy cherishes and protects (Article 216, Civil Code). 11

In Bolivar v. Simbol, 12 the Court found the respondent there guilty of "grossly immoral conduct"
because he made a dupe of complainant, living on her bounty and allowing her to spend for his
schooling and other personal necessities while dangling before her the mirage of a marriage, marrying
another girl as soon as he had finished his studies, keeping his marriage a secret while continuing to
demand money from complainant. . . . ." The Court held such acts "indicative of a character not worthy
of a member of the Bar."

The Supreme Court opined that the conduct of respondent Jordan Terre in inveigling complainant
Dorothy Terre to contract a second marriage with him; in abandoning complainant Dorothy Terre after
she had cared for him and supported him through law school, leaving her without means for the safe
delivery of his own child; in contracting a second marriage with Malicdem while his first marriage with
complainant Dorothy Terre was subsisting, constituted "grossly immoral conduct" under Section 27 of
Rule 138 of the Rules of Court, affording more than sufficient basis for disbarment of respondent Jordan
Terre. He was unworthy of admission to the Bar in the first place.
Republic of the Philippines vs. Quintero-Hamano

G.R. No. 149498 May 20, 2004

Topic: Article 36 of the FC – applicability to mixed marriages

Doctrine: The SC finds no distinction between an alien spouse and a Filipino spouse. We cannot be
lenient in the application of the rules merely because the spouse alleged to be psychologically
incapacitated happens to be a foreign national. The medical and clinical rules to determine psychological
incapacity were formulated on the basis of studies of human behavior in general. Hence, the norms used
for determining psychological incapacity should apply to any person regardless of nationality.

Facts: Lolita Quintero-Hamano filed a complaint for declaration of nullity of her marriage to her husband
Toshio Hamano, a Japanese national, on the ground of psychological incapacity. Respondent alleged that
in 1986, she and Toshio started a common-law relationship in Japan. They later lived in the Philippines
for a month. Thereafter, Toshio went back to Japan and stayed there for half of 1987. 1987, she gave
birth to their child.

On January 14, 1988, she and Toshio were married by Judge Isauro M. Balderia of the Municipal Trial
Court of Bacoor, Cavite. Unknown to respondent, Toshio was psychologically incapacitated to assume his
marital responsibilities, which incapacity became manifest only after the marriage. One month after
their marriage, Toshio returned to Japan and promised to return by Christmas to celebrate the holidays
with his family. After sending money to respondent for two months, Toshio stopped giving financial
support. She wrote him several times but he never responded. Sometime in 1991, respondent learned
from her friends that Toshio visited the Philippines but he did not bother to see her and their child.

The summons issued to Toshio remained unserved because he was no longer residing at his given
address. Consequently, on July 8, 1996, respondent filed an ex parte motion for leave to effect service of
summons by publication. The trial court granted the motion on July 12, 1996. In August 1996, the
summons, accompanied by a copy of the petition, was published in a newspaper of general circulation
giving Toshio 15 days to file his answer. Because Toshio failed to file a responsive pleading after the lapse
of 60 days from publication, respondent filed a motion dated November 5, 1996 to refer the case to the
prosecutor for investigation. The trial court granted the motion on November 7, 1996.

Prosecutor Rolando I. Gonzales filed a report finding that no collusion existed between the parties. He
prayed that the Office of the Provincial Prosecutor be allowed to intervene to ensure that the evidence
submitted was not fabricated. The trial court granted respondent’s motion to present her evidence ex
parte. She then testified on how Toshio abandoned his family. She thereafter offered documentary
evidence to support her testimony. The trial court rendered a decision, declaring the parties’ marriage
null and void ordering The Civil Register of Bacoor, Cavite and the National Statistics Office to make
proper entries into the records of the afore-named parties pursuant to this judgment of the Court.

The trial court stated in its decision that respondent spouse failed to fulfill his obligations as husband of
the petitioner and father to his daughter. Respondent remained irresponsible and unconcerned over the
needs and welfare of his family. Such indifference, to the mind of the Court, is a clear manifestation of
insensitivity and lack of respect for his wife and child which characterizes a very immature person.
Certainly, such behavior could be traced to respondent’s mental incapacity and disability of entering into
marital life.
The Office of the Solicitor General appealed to the Court of Appeals but the same was denied.

The appellate court thus concluded that respondent was psychologically incapacitated to perform his
marital obligations to his family; the appellate court emphasized that this case could not be equated with
Republic vs. Court of Appeals and Molina and Santos vs. Court of Appeals. In those cases, the spouses
were Filipinos while this case involved a "mixed marriage," the husband being a Japanese national.

Issue: WHETHER OR NOT RESPONDENT TOSHIO IS PSYCHOLOGICALLY INCAPACITATED TO ASSUME THE

ESSENTIAL MARITAL OBLIGATIONS; WHETHER OR NOT THE TOTALITY OF CIRCUMSTANCES TEST IN
MOLINA DOES NOT APPLY TO A FOREIGNER

HELD: The OSG contends, mere abandonment by Toshio of his family and his insensitivity to them did
not automatically constitute psychological incapacity. His behavior merely indicated simple inadequacy
in the personality of a spouse falling short of reasonable expectations. Respondent failed to prove any
severe and incurable personality disorder on the part of Toshio, in accordance with the guidelines set in
Molina.

The Supreme Court agreed with the OSG citing the policy of the 1987 Constitution to protect and
strengthen the family as the basic autonomous social institution and marriage as the foundation of the
family. Thus, any doubt should be resolved in favor of the validity of the marriage.

Respondent seeks to annul her marriage with Toshio on the ground of psychological incapacity. Article 36
of the Family Code of the Philippines provides that:

Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if
such incapacity becomes manifest only after its solemnization.

In Molina, we came up with the following guidelines in the interpretation and application of Article 36
for the guidance of the bench and the bar:

(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be
resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity.
This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and
unity of the family. x x x

(2) The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b)
alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision.
Article 36 of the Family Code requires that the incapacity must be psychological - not physical, although
its manifestations and/or symptoms may be physical. The evidence must convince the court that the
parties, or one of them, was mentally or psychically ill to such an extent that the person could not have
known the obligations he was assuming, or knowing them, could not have given valid assumption
thereof. Although no example of such incapacity need be given here so as not to limit the application
of the provision under the principle of ejusdem generis (Salita vs. Magtolis, 233 SCRA 100, June 13,
1994), nevertheless such root cause must be identified as a psychological illness and its incapacitating
nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical
psychologists.
(3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The
evidence must show that the illness was existing when the parties exchanged their "I do’s." The
manifestation of the illness need not be perceivable at such time, but the illness itself must have
attached at such moment, or prior thereto.

(4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such
incurability may be absolute or even relative only in regard to the other spouse, not necessarily
absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the
assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of
a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of
children and prescribing medicine to cure them but may not be psychologically capacitated to procreate,
bear and raise his/her own children as an essential obligation of marriage.

(5) Such illness must be grave enough to bring about the disability of the party to assume the essential
obligations of marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional
outbursts" cannot be accepted as root causes. The illness must be shown as downright incapacity or
inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or
supervening disabling factor in the person, an adverse integral element in the personality structure that
effectively incapacitates the person from really accepting and thereby complying with the obligations
essential to marriage.

(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code
as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to
parents and their children. Such non-complied marital obligation(s) must also be stated in the petition,
proven by evidence and included in the text of the decision.

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling or decisive, should be given great respect by our courts. x x x

(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as
counsel for the state. No decision shall be handed down unless the Solicitor General issues a
certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or
opposition, as the case may be, to the petition. The Solicitor-General, along with the prosecuting
attorney, shall submit to the court such certification within fifteen (15) days from the date the case is
deemed submitted for resolution of the court. The Solicitor-General shall discharge the equivalent
function of the defensor vinculi contemplated under Canon 1095.13 (emphasis supplied)

The guidelines incorporate the three basic requirements earlier mandated by the Court in Santos:
"psychological incapacity must be characterized by (a) gravity (b) juridical antecedence and (c)
incurability." The foregoing guidelines do not require that a physician examine the person to be declared
psychologically incapacitated. In fact, the root cause may be "medically or clinically identified." What is
important is the presence of evidence that can adequately establish the party’s psychological condition.
For indeed, if the totality of evidence presented is enough to sustain a finding of psychological incapacity,
then actual medical examination of the person concerned need not be resorted to.
Petitioner showed that Toshio failed to meet his duty to live with, care for and support his family. He
abandoned them a month after his marriage to respondent. Respondent sent him several letters but he
never replied. He made a trip to the Philippines but did not care at all to see his family.

Yet the SC found that the totality of evidence presented fell short of proving that Toshio was
psychologically incapacitated to assume his marital responsibilities. Toshio’s act of abandonment was
doubtlessly irresponsible but it was never alleged nor proven to be due to some kind of psychological
illness. After respondent testified on how Toshio abandoned his family, no other evidence was presented
showing that his behavior was caused by a psychological disorder. Although, as a rule, there was no need
for an actual medical examination, it would have greatly helped respondent’s case had she presented
evidence that medically or clinically identified his illness. This could have been done through an expert
witness. This respondent did not do.

Abandonment is also a ground for legal separation. But there was no showing that the case at bar was
not just an instance of abandonment in the context of legal separation. We cannot presume
psychological defect from the mere fact that Toshio abandoned his family immediately after the
celebration of the marriage. As we ruled in Molina, it is not enough to prove that a spouse failed to meet
his responsibility and duty as a married person; it is essential that he must be shown to be incapable of
doing so due to some psychological, not physical, illness.17 There was no proof of a natal or supervening
disabling factor in the person, an adverse integral element in the personality structure that effectively
incapacitates a person from accepting and complying with the obligations essential to marriage.

The SC disagrees, the requirements in Molina and Santos do not apply here because the present case
involves a "mixed marriage," the husband being a Japanese national. In proving psychological incapacity,
we find no distinction between an alien spouse and a Filipino spouse. We cannot be lenient in the
application of the rules merely because the spouse alleged to be psychologically incapacitated happens
to be a foreign national. The medical and clinical rules to determine psychological incapacity were
formulated on the basis of studies of human behavior in general. Hence, the norms used for determining
psychological incapacity should apply to any person regardless of nationality.

Republic vs. Javier

G.R. No. 210518 APRIL 18, 2018

Topic: Art. 36 – Necessity of Personal Examination of an Expert over the parties

Doctrine: The Supreme Court disagreed with the CA's findings that Michelle was psychologically
incapacitated. We cannot absolutely rely on the Psychological Impression Report on Michelle. There
were no other independent evidence establishing the root cause or juridical antecedence of Michelle's
alleged psychological incapacity. It is highly unlikely that they were able to paint Dr. Adamos a complete
picture of Michelle's family and childhood history. The records do not show that Michelle and Jose
Vicente were childhood friends, while Martin, on the other hand, was introduced to Michelle during
their adulthood. Without a credible source of her supposed childhood trauma, Dr. Adamos was not
equipped with enough information from which he may reasonably conclude that Michelle is suffering
from a chronic and persistent disorder that is grave and incurable.
Facts: Martin and Michelle were married on February 8, 2002. On November 20, 2008, Martin filed a
Petition for Declaration of Nullity of Marriage and Joint Custody of Common Minor Child under Article 36
of the Family Code. Martin alleged that both he and Michelle were psychologically incapacitated to
comply with the essential obligations of marriage.He thus prayed for the declaration of nullity of their
marriage, and for the joint custody of their minor child, Amanda M. Javier.

Martin testified on his own behalf and presented the psychological findings of Dr. Elias D. Adamos (Dr.
Adamos). In the Psychological Impression Report on Michelle, Dr. Adamos diagnosed her with
Narcissistic Personality Disorder. Dr. Adamos concluded in the Psychological Evaluation Report that
Martin suffered from the same disorder. Their disorder was considered grave and incurable, and
rendered Martin and Michelle incapacitated to perform the essential obligations of marriage. Dr.
Adamos testified before the RTC to provide his expert opinion, and stated that with respect to the
Psychological Impression Report on Michelle, the informants were Martin and the respondents' common
friend, Jose Vicente Luis Serra (Jose Vicente). He was unable to evaluate Michelle because she did not
respond to Dr. Adamos' earlier request to come in for psychological evaluation.

The RTC dismissed the petition for failure to establish a sufficient basis for the declaration of nullity of
the respondents' marriage and held that: though Dr. Adamos diagnosed [Martin] to be afflicted with a
narcissistic personality disorder, which rendered him incapacitated to comply with his essential marital
obligations of observing love, trust and respect. [Martin's] testimony is found by the Court to be not
supportive of such finding and vice-versa. As to [Michelle's] alleged psychological incapacity, the Court
finds [Martin's] testimony to be self-serving and Dr. Adamos' findings to be without sufficient basis.

Martin moved for the reconsideration of the RTC's decision which was also denied. Martin appealed the
denial of his petition to the CA. Martin submitted that it is not necessary for the psychologist to
personally examine the incapacitated spouse, or Michelle in this case, before the court may rule on the
petition for declaration of nullity of marriage. He also argued that, at the very least, there was sufficient
evidence to support his own diagnosis of psychological incapacity.

The OSG opposed the MR, arguing that there was no basis for Dr. Adamos' findings as to Michelle's
psychological incapacity, the Republic asserts that there was no independent proof to establish this and
that Martin supported his petition for declaration of nullity of marriage with self-serving testimonies and
hearsay evidence.

On review, Martin's appeal was granted. The CA found that there was sufficient evidence to support
Martin's claim that he is psychologically incapacitated. The CA also negated the RTC's ruling by referring
to Martin's own testimony, in which he narrated his tendency to impose his own unrealistic standards on
Michelle. In its challenged decision, the CA likewise ruled that Michelle's diagnosis was adequately
supported by the narrations of Martin and Jose Vicente. The OSG filed an MR which was subsequently
denied. The OSG appealed, reiterating their previous arguments on appeal.

Issue: Whether or not the contention of Martin that he is psychologically incapacitated to perform the
essential obligations of marriage finds basis on the psychological examination of the Psychiatrist;
Whether or not Michelle’s psychological incapacity may be proven despite the lack of a personal
examination on Michelle

Held: The SC finds the present petition partially unmeritorious. The totality of evidence supports the
finding that Martin is psychologically incapacitated to perform the essential obligations of marriage.
The psychological incapacity of a spouse must be characterized by (a) gravity; (b) juridical antecedence;
and (c) incurability, which the Court discussed in Santos v. CA, et al. 30 as follows:

The incapacity must be grave or serious such that the party would be incapable of carrying out the
ordinary duties required in marriage; it must be rooted in the history of the party antedating the
marriage, although the overt manifestations may emerge only after the marriage; and it must be
incurable or, even if it were otherwise, the cure would be beyond the means of the party involved.

The Court later clarified in Marcos v. Marcos that for purposes of establishing the psychological
incapacity of a spouse, it is not required that a physician conduct an actual medical examination of the
person concerned. It is enough that the totality of evidence is strong enough to sustain the finding of
psychological incapacity. In such case, however, the petitioner bears a greater burden in proving the
gravity, juridical antecedence, and incurability of the other spouse's psychological incapacity.
While the Court has consistently followed the parameters in Republic v. Molina, these guidelines are not
meant to straightjacket all petitions for declaration of nullity of marriage. The merits of each case are
determined on a case-to-case basis, as no case is on all fours with another.

Martin, as the petitioner in this case, submitted several pieces of evidence to support his petition for
declaration of nullity of marriage. He testified as to his own psychological incapacity and that of his
spouse, Michelle. In particular, he stated that Michelle was confrontational even before their marriage.
He alleged that Michelle always challenged his opinions on what he thinks is proper, which he insisted on
because he witnessed the abuse that his mother went through with his biological father. He also thought
that Michelle was highly impressionable and easily influenced by friends, as a result of which, Martin
alleged that Michelle acted recklessly and without consideration of his feelings.

The psychological findings of Dr. Adamos were also presented in the trial court to corroborate his claim.
According to Dr. Adamos, Michelle suffered from Narcissistic Personality Disorder as a result of childhood
trauma and defective child-rearing practices. This disorder was supposedly aggravated by her marriage
with Martin, who she constantly lied to. It was also alleged in the Psychological Impression Report that
Michelle openly had extra-marital affairs.

The basis of Dr. Adamos' findings on the psychological incapacity of Michelle was the information
provided by Martin and Jose Vicente. Jose Vicente was a close friend of the respondents, having
introduced them to each other before their marriage. Jose Vicente was also allegedly a regular confidant
of Michelle.

While it is true that Michelle was not personally examined or evaluated for purposes of the psychological
report, the trial court was incorrect in ruling that Dr. Adamos' findings were based solely on the
interview with Martin. Even if that were the case, the findings of the psychologist are not immediately
invalidated for this reason alone. Because a marriage necessarily involves only two persons, the spouse
who witnessed the other spouse's behavior may "validly relay" the pattern of behavior to the
psychologist.

The Supreme Court disagreed with the CA's findings that Michelle was psychologically incapacitated. We
cannot absolutely rely on the Psychological Impression Report on Michelle. There were no other
independent evidence establishing the root cause or juridical antecedence of Michelle's alleged
psychological incapacity. It is highly unlikely that they were able to paint Dr. Adamos a complete picture
of Michelle's family and childhood history. The records do not show that Michelle and Jose Vicente were
childhood friends, while Martin, on the other hand, was introduced to Michelle during their adulthood.
Without a credible source of her supposed childhood trauma, Dr. Adamos was not equipped with
enough information from which he may reasonably conclude that Michelle is suffering from a chronic
and persistent disorder that is grave and incurable.

However, that Martin was also subjected to several psychological tests, as a result of which, Dr. Adamos
diagnosed him with Narcissistic Personality Disorder. Additionally, the diagnosis was based on Dr.
Adamos' personal interviews of Martin, who underwent several-or to be accurate, more than 10-
counselling sessions with Dr. Adamos from 2008 to 2009.49 These facts were uncontroverted by the
Republic.

In his testimony, Dr. Adamos explained that Martin had a "grandiose self[-]existence," which proceeded
from his "ideas of preference towards ideal love and ideal marriage." Dr. Adamos also found that Martin
lacked empathy, leading him to disregard and ignore the feelings of Michelle.

As a result, Martin was diagnosed with Narcissistic Personality Disorder, with tendencies toward sadism.
Dr. Adamos concluded from the tests administered on Martin that this disorder was rooted in the
traumatic experiences he experienced during his childhood, having grown up around a violent father
who was abusive of his mother. This adversely affected Martin in such a manner that he formed
unrealistic values and standards on his own marriage, and proposed unconventional sexual practices.
When Michelle would disagree with his ideals, Martin would not only quarrel with Michelle, but would
also inflict harm on her. Other manifestations include excessive love for himself, self-entitlement,
immaturity, and self-centeredness.

These circumstances, taken together, prove the three essential characteristics of psychological incapacity
on the part of Martin. As such, insofar as the psychological incapacity of Martin is concerned, the CA did
not commit a reversible error in declaring the marriage of the respondents null and void under Article 36
of the Family Code.

The SC clarified that the guidelines in Republic vs Molina still apply notwithstanding its ruling herein.

Wiegel vs. Sempio-Diy

G.R. No. L-53703 August 19, 1986

Topic: Consent as a requisite for a valid marriage

Doctrine: [Short case; no need to digest – the only issue here is whether the prior marriage is void or
voidable if force was attendant to wrest consent; distinction between void and voidable]

Facts: Karl Heinz Wiegel (plaintiff therein) asked for the declaration of Nullity of his marriage (celebrated
on July, 1978 at the Holy Catholic Apostolic Christian Church Branch in Makati, Metro Manila) with herein
petitioner Lilia Oliva Wiegel (Lilia, for short, and defendant therein) on the ground of Lilia's previous
existing marriage to one Eduardo A. Maxion, the ceremony having been performed on June 25, 1972 at
our Lady of Lourdes Church in Quezon City. Lilia, while admitting the existence of said prior subsisting
marriage claimed that said marriage was null and void, she and the first husband Eduardo A. Maxion
having been allegedly forced to enter said marital union. In the pre-trial that ensued, the issue agreed
upon by both parties was the status of the first marriage (assuming the presence of force exerted against
both parties): was said prior marriage void or was it merely voidable? Contesting the validity of the pre-
trial order, Lilia asked the respondent court for an opportunity to present evidence-

(1) that the first marriage was vitiated by force exercised upon both her and the first husband; and

(2) that the first husband was at the time of the marriage in 1972 already married to someone else.

Respondent Judge ruled against the presentation of evidence because the existence of force exerted on
both parties of the first marriage had already been agreed upon. Hence, the present petition for
certiorari assailing the following Orders of the respondent Judge-

(1) the Order dated March 17, 1980 in which the parties were compelled to submit the case for
resolution based on "agreed facts;" and

(2) the Order dated April 14, 1980, denying petitioner's motion to allow her to present evidence in her
favor.

Held: The SC held the petition devoid of merit. There is no need for petitioner to prove that her first
marriage was vitiated by force committed against both parties because assuming this to be so, the
marriage will not be void but merely voidable (Art. 85, Civil Code), and therefore valid until annulled.
Since no annulment has yet been made, it is clear that when she married respondent she was still validly
married to her first husband, consequently, her marriage to respondent is VOID (Art. 80, Civil Code).

There is likewise no need of introducing evidence about the existing prior marriage of her first husband
at the time they married each other, for then such a marriage though void still needs according to this
Court a judicial declaration of such fact and for all legal intents and purposes she would still be regarded
as a married woman at the time she contracted her marriage with respondent Karl Heinz Wiegel);
accordingly, the marriage of petitioner and respondent would be regarded VOID under the law.

Tolentino vs. Villanueva

G.R. No. L-23264 March 15, 1974

Topic: No confession of judgment in annulment cases; no declaration of default

Doctrine: [Yet another short case, digested it konti anyway ] Articles 88 and 101 of the Civil Code of
the Philippines expressly prohibit the rendition of a decision in suits for annulment of marriage and legal
separation based on a stipulation of facts or by confession of judgment and direct that in case of non-
appearance of defendant, the court shall order the prosecuting attorney to inquire whether or not
collusion between the parties exists, and if none, said prosecuting attorney shall intervene for the State
to prevent fabrication of evidence for the plaintiff.

Facts: Romulo Tolentino filed a suit for annulment of his marriage to private respondent Helen
Villanueva, alleging that his consent was obtained through fraud because immediately after the marriage
celebration, he discovered that private respondent was pregnant despite the fact that he had no sexual
relations with her prior to the marriage ceremony; and that they did not live as husband and wife as
immediately after the marriage celebration, Helen Villanueva left his house and her whereabouts
remained unknown to him until January, 1962 when he discovered that she is residing in San Francisco,
Cebu. Said marriage was solemnized by Quezon City Judge Mariano R. Virtucio on September 28, 1959
while the civil case was docketed as Civil Case No, 43347 of the Juvenile and Domestic Relations Court of
Manila.

Helen failed to file a responsive pleading despite a valid service of summon. The petitioner filed on June
13, 1962 a motion to declare her in default and to set the date for the presentation of his evidence.

Respondent Judge declared private respondent in default, but, pursuant to the provision of Articles 88
and 101 of the Civil Code of the Philippines, referred the case to the City Fiscal of Manila for investigation
to determine whether collusion exists between the parties, directing the City Fiscal to submit his report
within sixty (60) days from receipt thereof, and, in the event of a negative finding, to represent the State
at the trial of the case to prevent fabrication of evidence; and directed petitioner to furnish the City
Fiscal with copies of the complaint and such other documents necessary for the City Fiscal's information
and guidance. Petitioner submitted to the City Fiscal only a copy of his complaint.

Assistant City Fiscal Rafael A. Jose, assigned to the case, issued a subpoena to petitioner's counsel
requiring him to bring petitioner with him as well as copies of other documents in connection with the
annulment case on August 27, 1962 at 10:00 A.M.

Plaintiff's counsel, informed Assistant City Fiscal Jose that he could not comply with the subpoena for it
will unnecessarily expose his evidence. A motion was then dated and filed on October 29, 1962, with a
prayer that the respondent Judge set the date for the reception of his evidence on the ground that the
City Fiscal had not submitted a report of his findings despite the lapse of sixty (60) days from July 10,
1962 when he submitted to the City Fiscal a copy of the complaint.

On November 6, 1962, respondent Judge denied the aforesaid motion of petitioner unless he submits
himself for interrogation by the City Fiscal to enable the latter to report whether or not there is collusion
between the parties.

The respondent Judge dismissed the complaint on July 29, 1963 as the petitioner is not willing to submit
himself for interrogation by the City Fiscal pursuant to the provisions of the second paragraph of Article
101 of the New Civil Code.

Petitioner filed Motions for Reconsideration which were denied on July 29, 1963. April 11, 1964,
petitioner now files his petition to annul the denial of the Motions and to compel the judge to receive
the evidence.

Issue: Whether or not the dismissal of the complaint was proper by reason of the

Held: Articles 88 and 101 of the Civil Code of the Philippines expressly prohibit the rendition of a
decision in suits for annulment of marriage and legal separation based on a stipulation of facts or by
confession of judgment and direct that in case of non-appearance of defendant, the court shall order the
prosecuting attorney to inquire whether or not collusion between the parties exists, and if none, said
prosecuting attorney shall intervene for the State to prevent fabrication of evidence for the plaintiff.
Thus, Articles 88 and 101 state:
ART. 88. No judgment annulling a marriage shall be promulgated upon a stipulation of facts or by
confession of judgment.

In case of non-appearance of the defendant, the provisions of article 101, paragraph 2, shall be
observed.

ART. 101. No decree of legal separation shall be promulgated upon a stipulation of facts or by confession
of judgment.

In case of non-appearance of the defendant, the court shall order the prosecuting attorney to inquire
whether or not a collusion between the parties exists. If there is no collusion, the prosecuting attorney
shall intervene for the State in order to take care that the evidence for the plaintiff is not fabricated.

Even the 1940 Rules of Court, which preceded the 1950 Civil Code of the Philippines, direct that actions
for the annulment of marriage or divorce shall not be decided unless the material facts alleged in the
complaint are proved (Sec. 10, Rule 35, 1940 Rules of Court). The same rule is reiterated in Section 1 of
Rule 19 of the 1964 Revised Rules, with "legal separation" being substituted for "divorce", obviously
because the present Civil Code does not authorize absolute divorce.

The prohibition in the aforesaid laws and rules is predicated on the fact that the institutions of marriage
and of the family are sacred and therefore are as much the concern of the State as of the spouses;
because the State and the public have vital interest in the maintenance and preservation of these social
institutions against desecration by collusion between the parties or by fabricated evidence. The
prohibition against annulling a marriage based on the stipulation of facts or by confession of judgment or
by non-appearance of the defendant stresses the fact that marriage is more than a mere contract
between the parties; and for this reason, when the defendant fails to appear, the law enjoins the court
to direct the prosecuting officer to intervene for the State in order to preserve the integrity and sanctity
of the marital bonds.

In Re: Atty. Rufillo D. Bucana

A.M. No. 1637 July 6, 1976

Topic: Agreement to Separate

Doctrine: (Case for Disbarment) There is no question that the afore-mentioned Agreement is contrary to
law, morals and good customs. Marriage is an inviolable social 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.

The contract, in substance, purports to formulate an agreement between the husband and the wife to
take unto himself a concubine and the wife to live in adulterous relations with another man, without
opposition from either one, and what is more, it induces each party to commit bigamy. This is not only
immoral but in effect abets the commission of a crime. A notary public, by virtue of the nature of his
office, is required to exercise his duties with due care and with due regard to the provisions of existing
law.
Facts: Notary Public Rufillo D. Bucana allegedly notarized on November 10, 1975 an agreement at
Dumangas, Iloilo an Agreement executed by the spouses Gonzalo Baltazar and Luisa Sorongon wherein
the afore-mentioned spouses agreed that that in case anyone of them will remarry both parties offer no
objection and waive all civil and criminal actions against them for the purpose of allowing each and
everyone of them to remarry without objection or reservation. Mrs. Angela Baltazar, the Barangay
Captain of Victories, Dumangas, Iloilo wrote a latter asking the Court to require Bucana to show cause
within 10 days from notice why he should not be disciplinarily dealt with.

On April 21, 1976, respondent submitted his explanation, admitting that he notarized the afore-
mentioned document and that the Agreement is "immoral and against public policy", but in mitigation
he asserted that the document in question was Prepared by his clerk, Lucia D. Doctolero without his
previous knowledge; that when said document was presented to him for signature after it was signed by
the parties, he vehemently refused to sign it and informed the parties that the document was immoral;
that he placed the said document on his table among his files and more than a week later, he asked his
clerk where the document was for the purpose of destroying it, but to his surprise he found that the
same was notarized by him as per his file copies in the office; that he dispatched his clerk to get the copy
from the parties, but the afore-mentioned parties could not be found in their respective residences; that
he must have inadvertently notarized the same in view of the numerous documents on his table and at
that time he was emotionally disturbed as his father (now deceased) was then seriously ill. The foregoing
contentions of respondent were corroborated substantially by the separate sworn statements of his
clerk, Lucia D. Doctolero and Angela Drilon Baltazar, both dated April 20, 1976.

Issue: Whether or not an affidavit containing a stipulation that all criminal and civil actions in case of
remarriage shall be waived immoral and against public policy? Whether or not the notary public who
notarized said affidavit should be made liable for notarizing said affidavit?

Held: There is no question that the afore-mentioned Agreement is contrary to law, morals and good
customs. Marriage is an inviolable social 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.

The contract, in substance, purports to formulate an agreement between the husband and the wife to
take unto himself a concubine and the wife to live in adulterous relations with another man, without
opposition from either one, and what is more, it induces each party to commit bigamy. This is not only
immoral but in effect abets the commission of a crime. A notary public, by virtue of the nature of his
office, is required to exercise his duties with due care and with due regard to the provisions of existing
law.

As stressed by Justice Malcolm in Panganiban v. Borromeo, "it is for the notary to inform himself of the
facts to which he intends to certify and to take part in no illegal enterprise. The notary public is usually a
person who has been admitted to the practice of law, and as such, in the commingling of his duties
notary and lawyer, must be held responsible for both. We are led to hold that a member of the bar who
performs an act as a notary public of a disgraceful or immoral character may be held to account by the
court even to the extent of disbarment."

In the case at bar, respondent in effect pleads for clemency, claiming that the notarization of the
questioned document was due to his negligence. We find, however, that the aforementioned document
could not have been notarized if the respondent had only exercised the requisite care required by law in
the exercise of his duties as notary public.

The Supreme Court held that respondent Rufillo D. Bucana is guilty of malpractice and is hereby
suspended from the office of not try public for a period of six (6) months, with the admonition that a
repetition of the same or a similar act in the future will be dealt with more severely.

Munoz vs. Del Barrio – CA Decision

APPEAL from a judgment of the Court of First Instance of Bulacan. Ysip, J.

No. 12506-R. April 15, 1955

Topic: Attempt on the life of the spouse by the other as a ground for legal separation

Doctrine: An attempt on the life of a person implies that the actor in the attempt is moved by an
intention to kill the person against whom the attempt is made, and after a careful examination of the
evidence produced by appellant we cannot make up our mind to declare that the alleged maltreatments
of respondent to his wife were moved by such intent to kill

Facts: Felicidad P. Muñoz and Jose del Barrio were married civilly before Judge Natividad Almeda Lopez
of the Municipal Court of Manila on September 24, 1942 and again canonically on October 24 of that
year before the Catholic Minister Fr. Antonio Albrecht. The couple then lived together as husband and
wife for the ensuing six months in the house of the husband’s father in Manila. Then moved their
residence to the municipality of Maycawayan, Bulacan. Felix Luis del Barrio and Maria Teresa del Barrio
where then born to the couple who are 11 and 9, respectively.

Their marriage was riddled with quarrels. The couple separated in 1947. Felicidad stayed in Bulacan
while Jose stayed in Manila. Notwithstanding their separation, they met each other in the City of Manila,
and the wife claims that in December, 1950, or January, 1951, and in September of the latter year she
was again maltreated by her husband.

This moved her to institute the present action alleging in the petition filed on October 26, 1951, in the
Court of First Instance of Bulacan, among other things, that the system of conjugal partnership of gains
governs her marriage to the respondent; that no property has been acquired during the marriage of the
petitioner and respondent except a portion of a residential land located in Meycawayan, Bulacan, from
which no rentals are derived; that respondent has made several attempts on the life of the herein
petitioner which compelled her to live separately and apart from the respondent since 1947; and that
respondent has not provided support for petitioner and their children. Hence she prays the court for the
decree of legal separation of their marriage, that she be awarded with the custody of their minor
children and for the support of their children, and lastly, that whatever shall remain of said conjugal
partnership property after deduction of the expenses mentioned in the next preceding paragraph, be
divided and adjudicated in equal parts to herein petitioner and respondent and the conjugal partnership
dissolved and liquidated.

On November 12, 1951, respondent filed his answer to the petition denying the averments made in his
wife’s pleading and prayed the court that the petition be denied and dismissed for lack of merit, it being
contrary to moral and good customs and not authorized or sanctioned by statute, praying further for
such other relief as provided by law, with costs de oficio.

In compliance with the provisions of Article 98 of the new Civil Code, the judge took every feasible step
towards the reconciliation of the spouses. The reconciliation failed due to the alleged refusal of Felicidad
to yield to the process. The Court dismissed the petition and found the allegations of attempts against
the life of the petitioner baseless.

Felicidad P. Muñoz appealed from said judgment.

Issue: Whether or not the acts by the Jose constitute an attempt on the life on Felicidad to constitute as
a ground for legal separation?

Held: No. The new Civil Code prescribes the following:

“Art. 97. A petition for legal separation may be filed:

(1) For adultery on the part of the wife and for concubinage on the part of the husband, as defined in the
Penal Code; or
(2) An attempt by one spouse against the life of the other.”

In the case at bar the alleged maltreatments to the wife by the husband occurred before their separation
a mensa et thoro in 1947 must not have amounted to said husband’s attempts on the life of his wife,
since the latter did not institute any action for the legal separation from him upon the effectivity of the
Civil Code on August 30, 1950, and this case was only brought to court on October 26, 1951, after the
alleged maltreatment of September 1951 had taken place. Therefore, in this appeal we only have to
determine whether the maltreatments that appellant suffered at the hands of the respondent after their
separation of dwelling, which allegedly occurred in December, 1950, or January, 1951, and September of
the latter year, furnish ground for the legal separation applied for under paragraph 2 of Article 97 of the
Civil Code.

In appellant’s brief, mention is made of the testimonies of Jovita Faustinoabout the maltreatment
referred merely consisted in appellee’s giving a fist blow on the face of appellant. Patrolman Mallari did
not witness the maltreatment on which he testified, for he was called by appellant to intervene in the
quarrel between the spouses when it was already over, and the only thing he noticed was that she was
crying and that there were certain scratches on her brow and cheeks and on certain points of the neck
which were blackened. About the quarrel spoken of by Attorney Macias, the latter declared that appellee
boxed his wife on the abdomen, pulled her hair and had also twisted her neck when said attorney,
Leoncio Santos and Jose Enriquez separated petitioner and respondent.

An attempt on the life of a person implies that the actor in the attempt is moved by an intention to kill
the person against whom the attempt is made, and after a careful examination of the evidence produced
by appellant we cannot make up our mind to declare that the alleged maltreatments of respondent to
his wife were moved by such intent to kill. On the contrary, we share the opinion of the trial judge who
declared that said maltreatments cannot constitute attempts on the life of appellant as provided in
Article 97, No.2, of the Civil Code of the Philippines.

From the second edition of the Revised Penal Code by Dean Vicente J. Francisco – Book II, part 1, pp.
671-672 – we copy the following:
“In the prosecutions for frustrated or attempted homicide, the intention to take life must be proved with
the same degree of certainty as is required with respect to other elements of the crime, and the
inference of such intent should not be drawn in the absence of circumstances sufficient to prove such
intention beyond reasonable doubt (People vs. Villanueva, 51 Phil., 448). It is absolutely necessary that
the homicidal intent be evidenced by adequate acts which at the time of their execution were
unmistakably calculated to produce the death of the victim, since the crime of frustrated or attempted
homicide is one in which, more than in any other case, the penal law is based upon the material results
produced by the criminal act. It is not proper or just to attribute to the delinquent a specific intent to
commit the higher crime in the absence of proof to justify such a conclusion (U.S. vs. Taguibao, 1 Phil.,
16). Conformably to this rule, therefore, an accused who, upon seeing a man plowing the land which was
the subject matter of a dispute, immediately attacks the latter, inflicting blows upon his neck with the
back of the bolo, must be convicted of physical injuries, and not of frustrated homicide, because the
mere fact that the assault was committed with the back instead of the cutting edge of the bolo negatives
the idea of homicidal intent and precludes the crime from constituting frustrated homicide.” (U.S. vs.
Taguibao, 1 Phil., 16).

In the case of U.S. vs. Reyes et al., 30 Phil., 551, the Highest Tribunal of the land said the following:

“Homicide; Criminal intent. – When the case affords no good reason for holding that the assailants
positively intended to kill the injured party in spite of the persistent and repeated beatings they gave
him, however much they plainly demonstrated their intention of doing him injury, by striking him in an
inhuman manner on various parts of his body, it is improper to classify the crime as either frustrated or
attempted homicide. A personal assault must be punished according to its consequences and the harm
done to the victim, for the penal law in this class of crimes is only concerned with the material results
produced by the transgression, unless the perverse intention of taking the victim’s life be clearly
manifested.”

In the maltreatments complained of in this case, the respondent only used at most his bare fists or
hands and desisted from giving further chastisement after the first blows were given at the spur of the
impulse. It is argued, however, that this is a civil case and that appellant is only bound to prove her right
of action by preponderance of evidence and not by evidence beyond reasonable doubt upon which a
conviction for attempted parricide would rest, and though we may, to a certain extent, agree with
counsel for appellant on this point, yet we cannot help but declare that in so far as the intent to kill is
concerned, it must be established with clear and convincing evidence, and that in the case at bar said
intent has not been proved by such evidence. Petitioner-appellant herself should not have been so sure
of her evidence when instead of the present action she dared not cause the prosecution of her husband
for attempted parricide as a means of establishing her right to secure the legal separation she applies for
in this case.

Matute vs. Macadaeg

G.R. No. L-9325. May 30, 1956

Topic: Legal Separation – Custody of Children

Doctrine: Petitioner merely obtained his permission to bring them to Manila, for the purpose of
attending the funeral of their maternal grandfather, which took place in April, 1955. Thus, Petitioner
obtained and has the physical possession of the minors in a precarious manner. She holds it in the name,
on behalf and by authority of Respondent Medel, whose agent she, in effect, is. He may, therefore,
demand their return at any time, and she is bound to comply immediately with such demand. She
cannot even question his authority to make it, although she is free to seek a review of the order or
decision awarding the custody of the minors to him, and to ask that they be placed under her charge.

Facts:
(Armando Medel brought an action for legal separation against Rosario Matute on the ground of
adultery committed by Rosario with Armando’s brother. The CFI of Manila found Rosario guilty and
awarded the custody of their minor children to Armando.)

Armando went to the United States, leaving the children in the City of Davao under the care of his sister
Pilar Medel, in whose house Rosario subsequently lived in order to be with her offspring. Armando
returned to the Philippines late in 1954. At the close of the then current school year, during which the
children were enrolled in a school in Davao, or in March, 1955, they joined their father in Cebu. With his
permission, Rosario brought the children to Manila in April, 1955, to attend the funeral of her father.
Armando alleges that he consented thereto on condition that she would return the children to him
within two (2) weeks. Rosario did not do so. Instead, on June 10, 1955, she filed a motion praying that
the she be awarded with the custody of their minor children and for Armando Medel to support their
children by paying their school fees and giving them a reasonable allowance in an amount not less than
PHP200 a month.

The motion was based upon the ground that the children do not want to go back to their father, because
he “is living with a woman other than” their mother. Armando opposed this motion and countered with
a petition to declare and punish Rosario for contempt of court, in view of her failure and alleged refusal
to restore the custody of their children to him. After due hearing the Court of First Instance of Manila,
presided over by Hon. Higinio B. Macadaeg, Judge, issued an order, dated June 29, 1955, absolving
Rosario from the charge of contempt of court, she having secured Armando’s consent before bringing
the children to Manila, but denying her motion for their custody and ordering her to deliver them to
Armando within twenty-four (24) hours from notice.

Rosario instituted, against Armando and Judge Macadaeg, an action for certiorari and prohibition with
preliminary injunction, upon the ground that said order of June 29, 1955, had been issued with grave
abuse of discretion, and that there is no other plain, adequate and speedy remedy in the ordinary course
of law;

Upon the filing of the petition, we issued the writ of preliminary injunction therein prayed for, without
bond.

Petitioner herein maintains that the children should be under her custody, because: (1) she is their
legitimate mother and they wish to stay with her, not their father Armando Medel (2) three (3) of the
children are over ten (10) years of age, and, hence, their aforementioned wish must, pursuant to Rule
100, section 6, of the Rules of Court, be heeded, unless “the parent so chosen be unfit to take charge” of
them “by reason of moral depravity, habitual drunkenness, incapacity or poverty”; (3) the act of infidelity
of which she had been found guilty in the decision of November 6, 1952, does not involve “moral
depravity”; (4) in any event, it is a thing of the past, not a present reality; (5) Respondent Armando
Medel is now unfit to have the children under his care, for he is living maritally with a woman by the
name of Paz Jesusa Concepcion; and (6) although he had married the latter, after securing in the United
States a decree of divorce dissolving his marriage with Petitioner herein, said decree is null and void and,
accordingly, he is guilty of bigamy.

Issue: Whether or not Matute should be awarded custody of her children despite being held guilty by
the CFI of adultery?

Held: The SC did not deem it necessary to pass upon the merits of the case. In the present action, we do
not deem it necessary to pass upon the merits of such pretense.

Pursuant to these provisions, neither the writ of certiorari nor that of prohibition lies unless the act
complained of has been performed “without or in excess of” jurisdiction “or with grave abuse of
discretion”. There is no question but that Respondent Judge had jurisdiction to pass upon the issue
raised by petitioner for the custody of their children, and the petition of Respondent Medel, dated June
22, 1955, to declare her guilty of contempt of court. They are not “errors of jurisdiction”, but errors in
the exercise of the jurisdiction which the lower court admittedly had. Such errors do not affect the
legality or validity of the order complained of. They may be reviewed by appeal, not by writ of certiorari
or prohibition. (Comments on the Rules of Court, by Moran, Vol. II, pp. 167 and 168).

It is true that, insofar as it refers to the custody of the minor children, said decision is never final, in the
sense that it is subject to review at any time that the Court may deem it for the best interest of said
minors. It is no less true, however, that, unless and until reviewed and modified, said award must stand.
No such modification having been made, at yet, Respondent Judge had, not only the authority; but, also,
the duty to execute and implement said award.

Furthermore, by virtue of said decision of November 6, 1952, Respondent had, admittedly, the custody
of said minors. Petitioner merely obtained his permission to bring them to Manila, for the purpose of
attending the funeral of their maternal grandfather, which took place in April, 1955. Thus, Petitioner
obtained and has the physical possession of the minors in a precarious manner. She holds it in the name,
on behalf and by authority of Respondent Medel, whose agent she, in effect, is. He may, therefore,
demand their return at any time, and she is bound to comply immediately with such demand. She
cannot even question his authority to make it, although she is free to seek a review of the order or
decision awarding the custody of the minors to him, and to ask that they be placed under her charge.

Again, it is conceded that children over ten (10) years of age, whose parents are divorced or living
separately, may choose which parent they prefer to live with, unless the parent chosen is unfit to take
charge of their care by reason of “moral depravity, habitual drunkenness, incapacity or poverty” (Rule
100, section 6, Rules of Court). Without deciding whether the adultery committed by herein Petitioner
with her own brother-in-law involves moral depravity, it is clear to our mind that the affirmative
assumption implicit in the order complained of cannot be characterized as an “abuse of discretion”,
much less a “grave” one.

Lastly, said order further declares:

“The fact remains that Defendant-movant is without means of livelihood and, according to her own
admission, she lives on the charity of her brothers. She has no home of her own to offer to her children,
but only she would shelter them under the roof of her brothers.” and the substantial accuracy of this
statement is not contested. We are not prepared to hold, that a grave abuse of discretion was committed
when the lower court impliedly deduced, from these circumstances, that “poverty”, among other causes,
rendered Petitioner unfit to take charge of her children or made it unwise to place them under her care.

Wherefore, without prejudice to such appropriate action as Petitioner may deem fit to take for the
purpose of securing a review of the order of Respondent Judge of June 29, 1955, or a modification of the
award made in the decision of November 6, 1952, relative to the custody of the children, or both, the
petition is denied and the case dismissed. The writ of preliminary injunction heretofore issued is hereby
dissolved, with costs against the Petitioner. It is SO ORDERED.