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SPECIAL FIRST DIVISION

VALERIO E. KALAW, Petitioner,

G.R. No. 166357

Present:

LEONARDO-DE CASTRO, Chairperson,

BERSAMIN, - versus -

MA. ELENA FERNANDEZ, Respondent.

DEL CASTILLO, *PEREZ, and

**LEONEN, JJ

Promulgated:

JAN 1 't 2015

x-------------------------------------------------------------------- ~ J

RESOLUTION

BERSAMIN, J.:

In our decision promulgated on September 19, 2011, 1 the Court dismissed the complaint for declaration of nullity of the marriage of the parties upon the following ratiocination, to wit:

The petition has no merit. The CA committed no reversible error in setting aside the trial court's Decision for lack of legal and factual basis.

xx xx

In the case at bar, petitioner failed to prove that his wife (respondent) suffers from psychological incapacity. He presented the testimonies of two supposed expert witnesses who concluded that respondent is psychologically incapacitated, but the conclusions of these witnesses were premised on the alleged acts or behavior of respondent

Per Special Order No. 1080 dated September 13, 2011. •• Pursuant to the third paragraph of Section 7, Rule 2, Internal Rules.

657 SCRA 822.

I

~

Resolution 2 G.R. No. 166357

which had not been sufficiently proven. Petitioner’s experts heavily relied on petitioner’s allegations of respondent’s constant mahjong sessions, visits to the beauty parlor, going out with friends, adultery, and neglect of their children. Petitioner’s experts opined that respondent’s alleged habits, when performed constantly to the detriment of quality and quantity of time devoted to her duties as mother and wife, constitute a psychological incapacity in the form of NPD.

But petitioner’s allegations, which served as the bases or

underlying premises of the conclusions of his experts, were not actually proven. In fact, respondent presented contrary evidence refuting these allegations of the petitioner.

For instance, petitioner alleged that respondent constantly played

mahjong and neglected their children as a result. Respondent admittedly played mahjong, but it was not proven that she engaged in mahjong so frequently that she neglected her duties as a mother and a wife. Respondent refuted petitioner’s allegations that she played four to five times a week. She maintained it was only two to three times a week and always with the permission of her husband and without abandoning her children at home. The children corroborated this, saying that they were with their mother when she played mahjong in their relative’s home. Petitioner did not present any proof, other than his own testimony, that the mahjong sessions were so frequent that respondent neglected her family. While he intimated that two of his sons repeated the second grade, he was not able to link this episode to respondent’s mahjong-playing. The least that could have been done was to prove the frequency of respondent’s mahjong-playing during the years when these two children were in second grade. This was not done. Thus, while there is no dispute that respondent played mahjong, its alleged debilitating frequency and adverse effect on the children were not proven.

Also unproven was petitioner’s claim about respondent’s alleged

constant visits to the beauty parlor, going out with friends, and obsessive need for attention from other men. No proof whatsoever was presented to prove her visits to beauty salons or her frequent partying with friends. Petitioner presented Mario (an alleged companion of respondent during these nights-out) in order to prove that respondent had affairs with other men, but Mario only testified that respondent appeared to be dating other men. Even assuming arguendo that petitioner was able to prove that respondent had an extramarital affair with another man, that one instance of sexual infidelity cannot, by itself, be equated with obsessive need for attention from other men. Sexual infidelity per se is a ground for legal separation, but it does not necessarily constitute psychological incapacity.

Given the insufficiency of evidence that respondent actually

engaged in the behaviors described as constitutive of NPD, there is no basis for concluding that she was indeed psychologically incapacitated. Indeed, the totality of the evidence points to the opposite conclusion. A fair assessment of the facts would show that respondent was not totally remiss and incapable of appreciating and performing her marital and parental duties. Not once did the children state that they were neglected by their mother. On the contrary, they narrated that she took care of them, was around when they were sick, and cooked the food they like. It appears that respondent made real efforts to see and take care of her children despite her estrangement from their father. There was no testimony whatsoever that shows abandonment and neglect of familial duties. While


petitioner cites the fact that his two sons, Rio and Miggy, both failed the second elementary level despite having tutors, there is nothing to link their academic shortcomings to Malyn’s actions.

After poring over the records of the case, the Court finds no factual

basis for the conclusion of psychological incapacity. There is no error in the CA’s reversal of the trial court’s ruling that there was psychological incapacity. The trial court’s Decision merely summarized the allegations, testimonies, and evidence of the respective parties, but it did not actually assess the veracity of these allegations, the credibility of the witnesses, and the weight of the evidence. The trial court did not make factual findings which can serve as bases for its legal conclusion of psychological incapacity.

What transpired between the parties is acrimony and, perhaps,

infidelity, which may have constrained them from dedicating the best of themselves to each other and to their children. There may be grounds for legal separation, but certainly not psychological incapacity that voids a marriage.

WHEREFORE, premises considered, the petition is DENIED. The

Court of Appeals’ May 27, 2004 Decision and its December 15, 2004 Resolution in CA-G.R. CV No. 64240 are AFFIRMED.

SO ORDERED.2

In his Motion for Reconsideration,3 the petitioner implores the Court to take a thorough second look into what constitutes psychological incapacity; to uphold the findings of the trial court as supported by the testimonies of three expert witnesses; and consequently to find that the respondent, if not both parties, were psychologically incapacitated to perform their respective essential marital obligation.

Upon an assiduous review of the records, we resolve to grant the petitioner’s Motion for Reconsideration.

I

Psychological incapacity as a ground for the nullity of marriage under Article 36 of the Family Code refers to a serious psychological illness afflicting a party even prior to the celebration of the marriage that is permanent as to deprive the party of the awareness of the duties and responsibilities of the matrimonial bond he or she was about to assume. Although the Family Code has not defined the term psychological incapacity, the Court has usually looked up its meaning by reviewing the deliberations of the sessions of the Family Code Revision Committee that had drafted the Family Code in order to gain an insight on the provision. It appeared that the members of the Family Code Revision Committee were

2 Id. at 836-839. 3 Rollo, pp. 689-704.


not unanimous on the meaning, and in the end they decided to adopt the provision “with less specificity than expected” in order to have the law “allow some resiliency in its application.”4 Illustrative of the “less specificity than expected” has been the omission by the Family Code Revision Committee to give any examples of psychological incapacity that would have limited the applicability of the provision conformably with the principle of ejusdem generis, because the Committee desired that the courts should interpret the provision on a case-to-case basis, guided by experience, the findings of experts and researchers in psychological disciplines, and the decisions of church tribunals that had persuasive effect by virtue of the provision itself having been taken from the Canon Law.5

On the other hand, as the Court has observed in Santos v. Court of Appeals,6 the deliberations of the Family Code Revision Committee and the relevant materials on psychological incapacity as a ground for the nullity of marriage have rendered it obvious that the term psychological incapacity as used in Article 36 of the Family Code “has not been meant to comprehend all such possible cases of psychoses as, likewise mentioned by some ecclesiastical authorities, extremely low intelligence, immaturity, and like circumstances,” and could not be taken and construed independently of “but must stand in conjunction with, existing precepts in our law on marriage.” Thus correlated:-

x x x “psychological incapacity” should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of “psychological incapacity” to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychologic condition must exist at the time the marriage is celebrated. The law does not evidently envision, upon the other hand, an inability of the spouse to have sexual relations with the other. This conclusion is implicit under Article 54 of the Family Code which considers children conceived prior to the judicial declaration of nullity of the void marriage to be “legitimate.”7

In time, in Republic v. Court of Appeals,8 the Court set some guidelines for the interpretation and application of Article 36 of the Family Code, as follows:

4 See Santos v. Court of Appeals, G.R. No. 112019, January 4, 1995, 240 SCRA 20, 31. 5 See Salita v. Magtolis, G.R No. 106429, June 13, 1994, 233 SCRA 100, 107-108. 6 Supra note 4. 7 Id. at 34. 8 G.R. No. 108763, February 13, 1997, 268 SCRA 198.


(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. Thus, our Constitution devotes an entire Article on the Family, recognizing it “as the foundation of the nation.” It decrees marriage as legally “inviolable,” thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be “protected” by the state.

The Family Code echoes this constitutional edict on marriage and

the family and emphasizes their permanence, inviolability and solidarity. (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, 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. It is clear that Article 36 was taken by the Family Code Revision Committee from Canon 1095 of the New Code of Canon Law, which became effective in 1983 and which provides:

“The following are incapable of contracting marriage: Those

who are unable to assume the essential obligations of marriage due to causes of psychological nature.” Since the purpose of including such provision in our Family Code

is to harmonize our civil laws with the religious faith of our people, it stands to reason that to achieve such harmonization, great persuasive weight should be given to decisions of such appellate tribunal. Ideally — subject to our law on evidence — what is decreed as canonically invalid should also be decreed civilly void.

This is one instance where, in view of the evident source and

purpose of the Family Code provision, contemporaneous religious interpretation is to be given persuasive effect. Here, the State and the Church — while remaining independent, separate and apart from each other — shall walk together in synodal cadence towards the same goal of protecting and cherishing marriage and the family as the inviolable base of the nation.

(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 1095.9

The foregoing guidelines have turned out to be rigid, such that their application to every instance practically condemned the petitions for declaration of nullity to the fate of certain rejection. But Article 36 of the Family Code must not be so strictly and too literally read and applied given the clear intendment of the drafters to adopt its enacted version of “less specificity” obviously to enable “some resiliency in its application.” Instead, every court should approach the issue of nullity “not on the basis of a priori assumptions, predilections or generalizations, but according to its own facts” in recognition of the verity that no case would be on “all fours” with the next one in the field of psychological incapacity as a ground for the nullity of marriage; hence, every “trial judge must take pains in examining the factual 9 Id. at 209-213.


milieu and the appellate court must, as much as possible, avoid substituting its own judgment for that of the trial court.”10

In the task of ascertaining the presence of psychological incapacity as a ground for the nullity of marriage, the courts, which are concededly not endowed with expertise in the field of psychology, must of necessity rely on the opinions of experts in order to inform themselves on the matter, and thus enable themselves to arrive at an intelligent and judicious judgment. Indeed, the conditions for the malady of being grave, antecedent and incurable demand the in-depth diagnosis by experts.11

II

The findings of the Regional Trial Court (RTC) on the existence or non-existence of a party’s psychological incapacity should be final and binding for as long as such findings and evaluation of the testimonies of witnesses and other evidence are not shown to be clearly and manifestly erroneous.12 In every situation where the findings of the trial court are sufficiently supported by the facts and evidence presented during trial, the appellate court should restrain itself from substituting its own judgment.13 It is not enough reason to ignore the findings and evaluation by the trial court and substitute our own as an appellate tribunal only because the Constitution and the Family Code regard marriage as an inviolable social institution. We have to stress that the fulfilment of the constitutional mandate for the State to protect marriage as an inviolable social institution14 only relates to a valid marriage. No protection can be accorded to a marriage that is null and void ab initio, because such a marriage has no legal existence.15

In declaring a marriage null and void ab initio, therefore, the Courts really assiduously defend and promote the sanctity of marriage as an inviolable social institution. The foundation of our society is thereby made all the more strong and solid.

Here, the findings and evaluation by the RTC as the trial court deserved credence because it was in the better position to view and examine

10 Separate Statement of Justice Teodoro Padilla in Republic v. Court of Appeals, supra, note 8, at 214. 11 Hernandez v. Court of Appeals, G.R. No. 126010, December 8, 1999, 320 SCRA 76; Republic v. Quintero-Hamano, G.R. No. 149498, May 20, 2004, 428 SCRA 735. 12 Tuason v. Court of Appeals, G.R. No. 116607, April 10, 1996, 256 SCRA 158, 170. 13 Separate Statement of Justice Teodoro R. Padilla in Republic v. Court of Appeals, supra note 10. 14 Article XV of the 1987 Constitution provides: Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. 15 Camacho-Reyes v. Reyes, G.R. No. 185286, August 18, 2010, 628 SCRA 461 (“[B]lind adherence by the courts to the exhortation in the Constitution and in our statutes that marriage is an inviolable social institution, and validating a marriage that is null and void despite convincing proof of psychological incapacity, trenches on the very reason why a marriage is doomed from its inception should not be forcibly inflicted upon its hapless partners for life.”).


the demeanor of the witnesses while they were testifying.16 The position and role of the trial judge in the appreciation of the evidence showing the psychological incapacity were not to be downplayed but should be accorded due importance and respect.

Yet, in the September 19, 2011 decision, the Court brushed aside the opinions tendered by Dr. Cristina Gates, a psychologist, and Fr. Gerard Healy on the ground that their conclusions were solely based on the petitioner’s version of the events.

After a long and hard second look, we consider it improper and unwarranted to give to such expert opinions a merely generalized consideration and treatment, least of all to dismiss their value as inadequate basis for the declaration of the nullity of the marriage. Instead, we hold that said experts sufficiently and competently described the psychological incapacity of the respondent within the standards of Article 36 of the Family Code. We uphold the conclusions reached by the two expert witnesses because they were largely drawn from the case records and affidavits, and should not anymore be disputed after the RTC itself had accepted the veracity of the petitioner’s factual premises.17

Admittedly, Dr. Gates based her findings on the transcript of the petitioner’s testimony, as well as on her interviews of the petitioner, his sister Trinidad, and his son Miguel. Although her findings would seem to be unilateral under such circumstances, it was not right to disregard the findings on that basis alone. After all, her expert opinion took into consideration other factors extant in the records, including the own opinions of another expert who had analyzed the issue from the side of the respondent herself. Moreover, it is already settled that the courts must accord weight to expert testimony on the psychological and mental state of the parties in cases for the declaration of the nullity of marriages, for by the very nature of Article 36 of the Family Code the courts, “despite having the primary task and burden of decision-making, must not discount but, instead, must consider as decisive evidence the expert opinion on the psychological and mental temperaments of the parties.”18

The expert opinion of Dr. Gates was ultimately necessary herein to enable the trial court to properly determine the issue of psychological incapacity of the respondent (if not also of the petitioner). Consequently, the lack of personal examination and interview of the person diagnosed with personality disorder, like the respondent, did not per se invalidate the findings of the experts. The Court has stressed in Marcos v. Marcos19 that

16 Collado v. Intermediate Appellate Court, G.R. No. 72780, February 13, 1992, 206 SCRA 206, 212; People v. Basmayor, G.R. No. 182791, February 10, 2009, 578 SCRA 369, 382-383. 17 Antonio v. Reyes, G.R. No. 155800, March 10, 2006, 484 SCRA 353, 379. 18 Ngo Te v. Yu-Te, G.R. No. 161793, February 13, 2009, 579 SCRA 193, 228. 19 G.R. No. 136490, October 19, 2000, 343 SCRA 755, 757.


there is no requirement for one to be declared psychologically incapacitated to be personally examined by a physician, because what is important is the presence of evidence that adequately establishes the party’s psychological incapacity. Hence, “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.”20

Verily, the totality of the evidence must show a link, medical or the like, between the acts that manifest psychological incapacity and the psychological disorder itself. If other evidence showing that a certain condition could possibly result from an assumed state of facts existed in the record, the expert opinion should be admissible and be weighed as an aid for the court in interpreting such other evidence on the causation.21 Indeed, an expert opinion on psychological incapacity should be considered as conjectural or speculative and without any probative value only in the absence of other evidence to establish causation. The expert’s findings under such circumstances would not constitute hearsay that would justify their exclusion as evidence.22 This is so, considering that any ruling that brands the scientific and technical procedure adopted by Dr. Gates as weakened by bias should be eschewed if it was clear that her psychiatric evaluation had been based on the parties’ upbringing and psychodynamics.23

In that context, Dr. Gates’ expert opinion should be considered not in isolation but along with the other evidence presented here.

Moreover, in its determination of the issue of psychological incapacity, the trial court was expected to compare the expert findings and opinion of Dr. Natividad Dayan, the respondent’s own witness, and those of Dr. Gates.

In her Psychological Evaluation Report,24 Dr. Dayan impressed that the respondent had “compulsive and dependent tendencies” to the extent of being “relationship dependent.” Based from the respondent’s psychological data, Dr. Dayan indicated that:

In her relationship with people, Malyne is likely to be reserved and seemingly detached in her ways. Although she likes to be around people, she may keep her emotional distance. She, too, values her relationship but she may not be that demonstrative of her affections. Intimacy may be quite difficult for her since she tries to maintain a certain distance to minimize opportunities for rejection. To others, Malyne may appear, critical and demanding in her ways. She can be assertive when opinions contrary to those of her own are expressed. And yet, she is apt to be a dependent

20 Id. at 764. 21 Herrera, Remedial Law, Volume V (1999), pp. 804-805. 22 Camacho-Reyes v. Reyes, supra, note 15, at 487. 23 Carcereny, et al., Annulment in the Philippines: Clinical and Legal Issues (2010), p. 16. 24 Records Volume II, pp. 87-105.


person. At a less conscious level, Malyne fears that others will abandon her. Malyne, who always felt a bit lonely, placed an enormous value on having significant others would depend on most times. x x x x

But the minute she started to care, she became a different person—clingy and immature, doubting his love, constantly demanding reassurance that she was the most important person in his life. She became relationship-dependent.25

Dr. Dayan was able to clearly interpret the results of the Millon Clinical Multiaxial Inventory test26 conducted on the respondent, observing that the respondent obtained high scores on dependency, narcissism and compulsiveness, to wit:

Atty. Bretania Q : How about this Millon Clinical Multiaxial Inventory? A : Sir, the cut of the score which is supposed to be normal is 73

percental round and there are several scores wherein Mrs. Kalaw obtained very high score and these are on the score of dependency, narcissism and compulsion.

Q : Would you please tell us again, Madam Witness, what is the

acceptable score? A : When your score is 73 and above, that means that it is very

significant. So, if 72 and below, it will be considered as acceptable.

Q : In what area did Mrs. Kalaw obtain high score? A : Under dependency, her score is 78; under narcissism, is 79; under

compulsiveness, it is 84.27

It is notable that Dr. Dayan’s findings did not contradict but corroborated the findings of Dr. Gates to the effect that the respondent had been afflicted with Narcissistic Personality Disorder as well as with Anti-Social Disorder. Dr. Gates relevantly testified:

ATTY. GONONG Q : Could you please repeat for clarity. I myself is [sic] not quite

familiar with psychology terms. So, more or less, could you please tell me in more layman’s terms how you arrived at your findings that the respondent is self-centered or narcissistic?

25 Id. at 100, 103. 26 A psychological test used to find personality disorders based on the respondent’s answers to 175 true/false questions (Ng, et al., Legal and Clinical Bases of Psychological Incapacity [2006], p. 109). 27 TSN dated January 30, 1996, p. 13.


A : I moved into this particular conclusion. Basically, if you ask about her childhood background, her father died in a vehicular accident when she was in her teens and thereafter she was prompted to look for a job to partly assume the breadwinner’s role in her family. I gathered that paternal grandmother partly took care of her and her siblings against the fact that her own mother was unable to carry out her respective duties and responsibilities towards Elena Fernandez and her siblings considering that the husband died prematurely. And there was an indication that Elena Fernandez on several occasions ever told petitioner that he cannot blame her for being negligent as a mother because she herself never experienced the care and affection of her own mother herself. So, there is a precedent in her background, in her childhood, and indeed this seems to indicate a particular script, we call it in psychology a script, the tendency to repeat some kind of experience or the lack of care, let’s say some kind of deprivation, there is a tendency to sustain it even on to your own life when you have your own family. I did interview the son because I was not satisfied with what I gathered from both Trinidad and Valerio and even though as a young son at the age of fourteen already expressed the he could not see, according to the child, the sincerity of maternal care on the part of Elena and that he preferred to live with the father actually.

Q : Taking these all out, you came to the conclusion that respondent is

self-centered and narcissistic? A : Actually respondent has some needs which tempts [sic] from a

deprived childhood and she is still in search of this. In her several boyfriends, it seems that she would jump from one boyfriend to another. There is this need for attention, this need for love on other people.

Q : And that led you to conclude? A : And therefore I concluded that she is self-centered to the point of

neglecting her duty as a wife and as a mother.28

The probative force of the testimony of an expert does not lie in a mere statement of her theory or opinion, but rather in the assistance that she can render to the courts in showing the facts that serve as a basis for her criterion and the reasons upon which the logic of her conclusion is founded.29 Hence, we should weigh and consider the probative value of the findings of the expert witnesses vis-à-vis the other evidence available.

The other expert of the petitioner was Fr. Healy, a canon law expert, an advocate before the Manila Archdiocese and Matrimonial Tribunal, and a consultant of the Family Code Revision Committee. Regarding Father Healy’s expert testimony, we have once declared that judicial understanding of psychological incapacity could be informed by evolving standards, taking into account the particulars of each case, by current trends in psychological 28 TSN dated February 15, 1995, pp. 8-10. 29 Lim v. Sta. Cruz-Lim, G.R. No. 176464, February 4, 2010, 611 SCRA 569, 585.


and even by canonical thought, and by experience.30 It is prudent for us to do so because the concept of psychological incapacity adopted under Article 36 of the Family Code was derived from Canon Law.

Father Healy tendered his opinion on whether or not the respondent’s level of immaturity and irresponsibility with regard to her own children and to her husband constituted psychological incapacity, testifying thusly:

ATTY. MADRID Q : Now, respondent Ma. Elena Fernandez claims that she is not

psychologically incapacitated. On the facts as you read it based on the records of this case before this Honorable Court, what can you say to that claim of respondent?

A : I would say it is a clear case of psychological incapacity because of

her immaturity and traumatic irresponsibility with regards to her own children.

Q : So what you are saying is that, the claim of respondent that she is

not psychologically incapacitated is not true? A : Yes. It should be rejected. Q : Why do you say so? A : Because of what she has manifested in her whole lifestyle,

inconsistent pattern has been manifested running through their life made a doubt that this is immaturity and irresponsibility because her family was dysfunctional and then her being a model in her early life and being the breadwinner of the family put her in an unusual position of prominence and then begun to inflate her own ego and she begun to concentrate her own beauty and that became an obsession and that led to her few responsibility of subordinating to her children to this lifestyle that she had embraced.

Q : You only mentioned her relationship with the children, the impact.

How about the impact on the relationship of the respondent with her husband?

A : Also the same thing. It just did not fit in to her lifestyle to fulfill

her obligation to her husband and to her children. She had her own priorities, her beauty and her going out and her mahjong and associating with friends. They were the priorities of her life.

Q : And what you are saying is that, her family was merely secondary? A : Secondary. Q : And how does that relate to psychological incapacity? A : That she could not appreciate or absorb or fulfill the obligations of

marriage which everybody takes for granted. The concentration on the husband and the children before everything else would be

30 Antonio v. Reyes, supra note 17, at 370.


subordinated to the marriage with her. It’s the other way around. Her beauty, her going out, her beauty parlor and her mahjong, they were their priorities in her life.

Q : And in medical or clinical parlance, what specifically do you call

this? A : That is narcissism where the person falls in love with himself is

from a myt[h]ical case in Roman history. Q : Could you please define to us what narcissism is? A : It’s a self-love, falling in love with oneself to make up for the loss

of a dear friend as in the case of Narcissus, the myth, and then that became known in clinical terminology as narcissism. When a person is so concern[ed] with her own beauty and prolonging and protecting it, then it becomes the top priority in her life.

x x x x Q : And you stated that circumstances that prove this narcissism. How

do you consider this narcissism afflicting respondent, it is grave, slight or ….?

A : I would say it’s grave from the actual cases of neglect of her

family and that causes serious obligations which she has ignored and not properly esteemed because she is so concern[ed] with herself in her own lifestyle. Very serious.

Q : And do you have an opinion whether or not this narcissism

afflicting respondent was already existing at the time or marriage or even thereafter?

x x x x A : When you get married you don’t develop narcissism or

psychological incapacity. You bring with you into the marriage and then it becomes manifested because in marriage you accept these responsibilities. And now you show that you don’t accept them and you are not capable of fulfilling them and you don’t care about them.

Q : Is this narcissism, Fr. Healy, acquired by accident or congenital or

what? A : No. The lifestyle generates it. Once you become a model and still

the family was depended [sic] upon her and she was a model at Hyatt and then Rustan’s, it began to inflate her ego so much that this became the top priority in her life. It’s her lifestyle.

Q : What you are saying is that, the narcissism of respondent even

expanded after the marriage? A : That could have expanded because it became very obvious after

the marriage because she was neglecting such fundamental obligations.


Q : And how about the matter of curability, is this medically or clinically curable, this narcissism that you mentioned?

A : Let’s say, it was manifested for so many years in her life. It was

found in her family background situation. Say, almost for sure would be incurable now.

Q : What specific background are you referring to? A : Well, the fact when the father died and she was the breadwinner

and her beauty was so important to give in her job and money and influence and so on. But this is a very unusual situation for a young girl and her position in the family was exalted in a very very unusual manner and therefore she had that pressure on her and in her accepting the pressure, in going along with it and putting it in top priority.31

Given his credentials and conceded expertise in Canon Law, Father Healy’s opinions and findings commanded respect. The contribution that his opinions and findings could add to the judicial determination of the parties’ psychological incapacity was substantive and instructive. He could thereby inform the trial court on the degrees of the malady that would warrant the nullity of marriage, and he could as well thereby provide to the trial court an analytical insight upon a subject as esoteric to the courts as psychological incapacity has been. We could not justly disregard his opinions and findings. Appreciating them together with those of Dr. Gates and Dr. Dayan would advance more the cause of justice. The Court observed in Ngo Te v. Yu-Te:32

By the very nature of Article 36, courts, despite having the primary task and burden of decision-making, must not discount but, instead, must consider as decisive evidence the expert opinion on the psychological and mental temperaments of the parties.

Justice Romero explained this in Molina, as follows:

Furthermore, and equally significant, the professional

opinion of a psychological expert became increasingly important in such cases. Data about the person's entire life, both before and after the ceremony, were presented to these experts and they were asked to give professional opinions about a party's mental capacity at the time of the wedding. These opinions were rarely challenged and tended to be accepted as decisive evidence of lack of valid consent.

The Church took pains to point out that its new openness

in this area did not amount to the addition of new grounds for annulment, but rather was an accommodation by the Church to the advances made in psychology during the past decades. There was now the expertise to provide the all-important connecting link between a marriage breakdown and premarital causes.

31 TSN dated June 17, 1998, pp. 24-28. 32 Supra note 18.


During the 1970s, the Church broadened its whole idea of

marriage from that of a legal contract to that of a covenant. The result of this was that it could no longer be assumed in annulment cases that a person who could intellectually understand the concept of marriage could necessarily give valid consent to marry. The ability to both grasp and assume the real obligations of a mature, lifelong commitment are now considered a necessary prerequisite to valid matrimonial consent.

Rotal decisions continued applying the concept of

incipient psychological incapacity, "not only to sexual anomalies but to all kinds of personality disorders that incapacitate a spouse or both spouses from assuming or carrying out the essential obligations of marriage. For marriage . . . is not merely cohabitation or the right of the spouses to each other's body for heterosexual acts, but is, in its totality the right to the community of the whole of life; i.e., the right to a developing lifelong relationship. Rotal decisions since 1973 have refined the meaning of psychological or psychic capacity for marriage as presupposing the development of an adult personality; as meaning the capacity of the spouses to give themselves to each other and to accept the other as a distinct person; that the spouses must be `other oriented' since the obligations of marriage are rooted in a self-giving love; and that the spouses must have the capacity for interpersonal relationship because marriage is more than just a physical reality but involves a true intertwining of personalities. The fulfillment of the obligations of marriage depends, according to Church decisions, on the strength of this interpersonal relationship. A serious incapacity for interpersonal sharing and support is held to impair the relationship and consequently, the ability to fulfill the essential marital obligations. The marital capacity of one spouse is not considered in isolation but in reference to the fundamental relationship to the other spouse.

Fr. Green, in an article in Catholic Mind, lists six

elements necessary to the mature marital relationship:

"The courts consider the following elements crucial to the marital commitment: (1) a permanent and faithful commitment to the marriage partner; (2) openness to children and partner; (3) stability; (4) emotional maturity; (5) financial responsibility; (6) an ability to cope with the ordinary stresses and strains of marriage, etc."

Fr. Green goes on to speak about some of the

psychological conditions that might lead to the failure of a marriage:

"At stake is a type of constitutional impairment precluding conjugal communion even with the best intentions of the parties. Among the psychic factors possibly giving rise to his or her inability to fulfill marital obligations are the following: (1) antisocial


personality with its fundamental lack of loyalty to persons or sense of moral values; (2) hyperesthesia, where the individual has no real freedom of sexual choice; (3) the inadequate personality where personal responses consistently fall short of reasonable expectations.

x x x x

The psychological grounds are the best approach

for anyone who doubts whether he or she has a case for an annulment on any other terms. A situation that does not fit into any of the more traditional categories often fits very easily into the psychological category. As new as the psychological grounds are, experts are already detecting a shift in their use. Whereas originally the emphasis was on the parties' inability to exercise proper judgment at the time of the marriage (lack of due discretion), recent cases seem to be concentrating on the parties' incapacity to assume or carry out their responsibilities and obligations as promised (lack of due competence). An advantage to using the ground of lack of due competence is that at the time the marriage was entered into civil divorce and breakup of the family almost always is proof of someone's failure to carry out marital responsibilities as promised at the time the marriage was entered into."

Hernandez v. Court of Appeals emphasizes the importance of

presenting expert testimony to establish the precise cause of a party's psychological incapacity, and to show that it existed at the inception of the marriage. And as Marcos v. Marcos asserts, there is no requirement that the person to be declared psychologically incapacitated be personally examined by a physician, if the totality of evidence presented is enough to sustain a finding of psychological incapacity. Verily, the evidence must show a link, medical or the like, between the acts that manifest psychological incapacity and the psychological disorder itself.

This is not to mention, but we mention nevertheless for emphasis,

that the presentation of expert proof presupposes a thorough and in-depth assessment of the parties by the psychologist or expert, for a conclusive diagnosis of a grave, severe and incurable presence of psychological incapacity.33

Ngo Te also emphasized that in light of the unintended consequences of strictly applying the standards set in Molina,34 the courts should consider the totality of evidence in adjudicating petitions for declaration of nullity of marriage under Article 36 of the Family Code, viz:

33 Id. at 229-232. 34 Republic v. Court of Appeals, supra, note 8.


The resiliency with which the concept should be applied and the case-to-case basis by which the provision should be interpreted, as so intended by its framers, had, somehow, been rendered ineffectual by the imposition of a set of strict standards in Molina, thus:

x x x x Noteworthy is that in Molina, while the majority of the Court’s

membership concurred in the ponencia of then Associate Justice (later Chief Justice) Artemio V. Panganiban, three justices concurred “in the result” and another three--including, as aforesaid, Justice Romero--took pains to compose their individual separate opinions. Then Justice Teodoro R. Padilla even emphasized that “each case must be judged, not on the basis of a priori assumptions, predilections or generalizations, but according to its own facts. In the field of psychological incapacity as a ground for annulment of marriage, it is trite to say that no case is on ‘all fours’ with another case. The trial judge must take pains in examining the factual milieu and the appellate court must, as much as possible, avoid substituting its own judgment for that of the trial court.”

Predictably, however, in resolving subsequent cases, the Court has

applied the aforesaid standards, without too much regard for the law's clear intention that each case is to be treated differently, as “courts should interpret the provision on a case-to-case basis; guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals.”

In hindsight, it may have been inappropriate for the Court to

impose a rigid set of rules, as the one in Molina, in resolving all cases of psychological incapacity. Understandably, the Court was then alarmed by the deluge of petitions for the dissolution of marital bonds, and was sensitive to the OSG's exaggeration of Article 36 as the "most liberal divorce procedure in the world." The unintended consequences of Molina, however, has taken its toll on people who have to live with deviant behavior, moral insanity and sociopathic personality anomaly, which, like termites, consume little by little the very foundation of their families, our basic social institutions. Far from what was intended by the Court, Molina has become a strait-jacket, forcing all sizes to fit into and be bound by it. Wittingly or unwittingly, the Court, in conveniently applying Molina, has allowed diagnosed sociopaths, schizophrenics, nymphomaniacs, narcissists and the like, to continuously debase and pervert the sanctity of marriage. Ironically, the Roman Rota has annulled marriages on account of the personality disorders of the said individuals.

The Court need not worry about the possible abuse of the remedy

provided by Article 36, for there are ample safeguards against this contingency, among which is the intervention by the State, through the public prosecutor, to guard against collusion between the parties and/or fabrication of evidence. The Court should rather be alarmed by the rising number of cases involving marital abuse, child abuse, domestic violence and incestuous rape.

In dissolving marital bonds on account of either party's

psychological incapacity, the Court is not demolishing the foundation of families, but it is actually protecting the sanctity of marriage, because it refuses to allow a person afflicted with a psychological disorder, who cannot comply with or assume the essential marital obligations, from


remaining in that sacred bond. It may be stressed that the infliction of physical violence, constitutional indolence or laziness, drug dependence or addiction, and psychosexual anomaly are manifestations of a sociopathic personality anomaly. Let it be noted that in Article 36, there is no marriage to speak of in the first place, as the same is void from the very beginning. To indulge in imagery, the declaration of nullity under Article 36 will simply provide a decent burial to a stillborn marriage.

x x x x Lest it be misunderstood, we are not suggesting the abandonment

of Molina in this case. We simply declare that, as aptly stated by Justice Dante O. Tinga in Antonio v. Reyes, there is need to emphasize other perspectives as well which should govern the disposition of petitions for declaration of nullity under Article 36. At the risk of being redundant, we reiterate once more the principle that each case must be judged, not on the basis of a priori assumptions, predilections or generalizations but according to its own facts. And, to repeat for emphasis, courts should interpret the provision on a case-to-case basis; guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals.35

III

In the decision of September 19, 2011, the Court declared as follows:

Respondent admittedly played mahjong, but it was not proven that she engaged in mahjong so frequently that she neglected her duties as a mother and a wife. Respondent refuted petitioner’s allegations that she played four to five times a week. She maintained it was only two to three times a week and always with the permission of her husband and without abandoning her children at home. The children corroborated this, saying that they were with their mother when she played mahjong in their relatives home. Petitioner did not present any proof, other than his own testimony, that the mahjong sessions were so frequent that respondent neglected her family. While he intimated that two of his sons repeated the second grade, he was not able to link this episode to respondent’s mahjong-playing. The least that could have been done was to prove the frequency of respondent’s mahjong-playing during the years when these two children were in second grade. This was not done. Thus, while there is no dispute that respondent played mahjong, its alleged debilitating frequency and adverse effect on the children were not proven.36 (Emphasis supplied)

The frequency of the respondent’s mahjong playing should not have delimited our determination of the presence or absence of psychological incapacity. Instead, the determinant should be her obvious failure to fully appreciate the duties and responsibilities of parenthood at the time she made her marital vows. Had she fully appreciated such duties and responsibilities, she would have known that bringing along her children of very tender ages

35 Supra note 18, at 220-228. 36 Decision, pp. 837-838.


to her mahjong sessions would expose them to a culture of gambling and other vices that would erode their moral fiber.

Nonetheless, the long-term effects of the respondent’s obsessive mahjong playing surely impacted on her family life, particularly on her very young children. We do find to be revealing the disclosures made by Valerio Teodoro Kalaw37 – the parties’ eldest son – in his deposition, whereby the son confirmed the claim of his father that his mother had been hooked on playing mahjong, viz:

ATTY. PISON: From the time…before your parent’s separation, do you remember any habit or activity or practice which your mother engaged in, before the separation?

WITNESS: Yeah, habit? She was a heavy smoker and she likes to

play mahjong a lot, and I can’t remember.

x x x x ATTY. PISON: You said that your mother played mahjong frequently.

How frequent, do you remember? WITNESS : Not really, but it was a lot. Not actually, I can’t, I

can’t… ATTY. PISON: How long would she stay playing mahjong say one

session? WITNESS : Really long cuz’ we would go to my aunt’s house in

White Plains and I think we would get there by lunch then leave, we fall asleep. I think it was like one in the morning.

ATTY. PISON: You, you went there? She brought you? WITNESS : Yeah, to play with my cousins, yeah and my brothers &

sisters. ATTY. PISON: Were you brought all the time? WITNESS: Yeah, almost all the time but sometimes, I guess she’d

go out by herself.38

The fact that the respondent brought her children with her to her mahjong sessions did not only point to her neglect of parental duties, but also manifested her tendency to expose them to a culture of gambling. Her willfully exposing her children to the culture of gambling on every occasion of her mahjong sessions was a very grave and serious act of subordinating their needs for parenting to the gratification of her own personal and escapist desires. This was the observation of Father Healy himself. In that regard, Dr. 37 Records, pp. 354-391. 38 Id. at 363.


Gates and Dr. Dayan both explained that the current psychological state of the respondent had been rooted on her own childhood experience.

The respondent revealed her wanton disregard for her children’s moral and mental development. This disregard violated her duty as a parent to safeguard and protect her children, as expressly defined under Article 209 and Article 220 of the Family Code, to wit:

Article 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing of such children for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.

Article 220. The parents and those exercising parental authority

shall have with respect to their unemancipated children or wards the following rights and duties:

(1) To keep them in their company, to support, educate and

instruct them by right precept and good example, and to provide for their upbringing in keeping with their means;

(2) x x x x

(3) To provide them with moral and spiritual guidance,

inculcate in them honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship;

(4) To enhance, protect, preserve and maintain their physical and mental health at all times;

(5) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals;

(6) x x x x

(7) x x x x (8) x x x x (9) x x x x (emphasis supplied)

The September 19, 2011 decision did not properly take into consideration the findings of the RTC to the effect that both the petitioner and the respondent had been psychologically incapacitated, and thus could not assume the essential obligations of marriage. The RTC would not have found so without the allegation to that effect by the respondent in her


answer,39 whereby she averred that it was not she but the petitioner who had suffered from psychological incapacity.

The allegation of the petitioner’s psychological incapacity was substantiated by Dr. Dayan, as follows:

ATTY. BRETAÑA: Q : You stated earlier that both parties were behaviorally immature? A : Yes, sir. Q : And that the marriage was a mistake? A : Yes, sir. Q : What is your basis for your statement that respondent was

behaviorally immature? A : Sir, for the reason that even before the marriage Malyn had noticed

already some of those short temper of the petitioner but she was very much in love and so she lived-in with him and even the time that they were together, that they were living in, she also had noticed some of his psychological deficits if we may say so. But as I said, because she is also dependent and she was one who determined to make the relationship work, she was denying even those kinds of problems that she had seen.

Q : To make it clear, Madam witness, I’m talking here of the

petitioner, Mr. Kalaw. What led you to conclude that Mr. Kalaw was behaviorally immature?

A : I think he also mentioned that his concept of marriage was not duly

stable then. He was not really thinking of marriage except that his wife got pregnant and so he thought that he had to marry her. And even that time he was not also a monogamous person.

Q : Are you saying, Madam Witness, that ultimately the decision to

marry lied on the petitioner? A : I think so, Sir. Q : Now, in your report, Madam Witness, you mentioned here that the

petitioner admitted to you that in his younger years he was often out seeking other women. I’m referring specifically to page 18. He also admitted to you that the thought of commitment scared him, the petitioner. Now, given these admissions by petitioner to you, my questions is, is it possible for such a person to enter into marriage despite

39 Paragraph 3 (Records, Vol. I, p. 20) of which runs: 3. She specifically denies the allegations contained in paragraphs 5, 6 and 7 of the Petition alleging that the respondent was psychologically incapacitated to comply with the essential obligations to the marriage and that such incapacity manifested itself only after the marriage, the truth of the matter being that it is the petitioner who is psychologically incapacitated.


this fear of commitment and given his admission that he was a womanizer? Is it possible for this person to stop his womanizing ways during the marriage?

A : Sir, it’s difficult. Q : It would be difficult for that person? A : Yes, Sir. Q : What is the probability of this person giving up his womanizing

after marriage? A : Sir, I would say the probability of his giving up is almost only

20%. Q : So, it is entirely possible that the respondent womanized during his

marriage with the respondent? A : Yes, Sir. Q : What is the bearing of this fear of commitment on the part of the

petitioner insofar as his psychological capacity to perform his duties as a husband is concerned?

A : Sir, it would impair his ability to have sexual integrity and also to

be fully committed to the role of husband to Malyn. Q : Madam Witness, you never directly answered my question on

whether the petitioner was psychologically incapacitated to perform his duty as a husband. You only said that the petitioner was behaviorally immature and that the marriage was a mistake. Now, may I asked [sic] you that question again and request you to answer that directly?

A : Sir, he is psychologically incapacitated.40

Although the petitioner, as the plaintiff, carried the burden to prove the nullity of the marriage, the respondent, as the defendant spouse, could establish the psychological incapacity of her husband because she raised the matter in her answer. The courts are justified in declaring a marriage null and void under Article 36 of the Family Code regardless of whether it is the petitioner or the respondent who imputes the psychological incapacity to the other as long as the imputation is fully substantiated with proof. Indeed, psychological incapacity may exist in one party alone or in both of them, and if psychological incapacity of either or both is established, the marriage has to be deemed null and void.

More than twenty (20) years had passed since the parties parted ways. By now, they must have already accepted and come to terms with the awful truth that their marriage, assuming it existed in the eyes of the law, was

40 TSN dated March 14, 1996, pp. 10-12.


already beyond repair. Both parties had inflicted so much damage not only to themselves, but also to the lives and psyche of their own children. It would be a greater injustice should we insist on still recognizing their void marriage, and then force them and their children to endure some more damage. This was the very same injustice that Justice Romero decried in her erudite dissenting opinion in Santos v. Court of Appeals:41

It would be great injustice, I believe, to petitioner for this Court to give a much too restrictive interpretation of the law and compel the petitioner to continue to be married to a wife who for purposes of fulfilling her marital duties has, for all practical purposes, ceased to exist. Besides, there are public policy considerations involved in the ruling the Court makes today. It is not, in effect, directly or indirectly, facilitating the transformation of petitioner into a “habitual tryster” or one forced to maintain illicit relations with another woman or women with emerging problems of illegitimate children, simply because he is denied by private respondent, his wife, the companionship and conjugal love which he has sought from her and to which he is legally entitled? I do not go as far as to suggest that Art. 36 of the Family Code is a sanction for absolute divorce but I submit that we should not constrict it to non-recognition of its evident purpose and thus deny to one like petitioner, an opportunity to turn a new leaf in his life by declaring his marriage a nullity by reason of his wife’s psychological incapacity to perform an essential marital obligation.

In this case, the marriage never existed from the beginning because the respondent was afflicted with psychological incapacity at and prior to the time of the marriage. Hence, the Court should not hesitate to declare the nullity of the marriage between the parties.

To stress, our mandate to protect the inviolability of marriage as the basic foundation of our society does not preclude striking down a marital union that is “ill-equipped to promote family life,” thus:

Now is also the opportune time to comment on another common legal guide utilized in the adjudication of petitions for declaration of nullity in the adjudication of petitions for declaration of nullity under Article 36. All too frequently, this Court and lower courts, in denying petitions of the kind, have favorably cited Sections 1 and 2, Article XV of the Constitution, which respectively state that “[t]he State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development[t],” and that [m]arriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.” These provisions highlight the importance of the family and the constitutional protection accorded to the institution of marriage.

41 Supra note 4, at 38.


But the Constitution itself does not establish the parameters of state protection to marriage as a social institution and the foundation of the family. It remains the province of the legislature to define all legal aspects of marriage and prescribe the strategy and the modalities to protect it, based on whatever socio-political influences it deems proper, and subject of course to the qualification that such legislative enactment itself adheres to the Constitution and the Bill of Rights. This being the case, it also falls on the legislature to put into operation the constitutional provisions that protect marriage and the family. This has been accomplished at present through the enactment of the Family Code, which defines marriage and the family, spells out the corresponding legal effects, imposes the limitations that affect married and family life, as well as prescribes the grounds for declaration of nullity and those for legal separation. While it may appear that the judicial denial of a petition for declaration of nullity is reflective of the constitutional mandate to protect marriage, such action in fact merely enforces a statutory definition of marriage, not a constitutionally ordained decree of what marriage is. Indeed, if circumstances warrant, Sections 1 and 2 of Article XV need not be the only constitutional considerations to be taken into account in resolving a petition for declaration of nullity.

Indeed, Article 36 of the Family Code, in classifying marriages contracted by a psychologically incapacitated person as a nullity, should be deemed as an implement of this constitutional protection of marriage. Given the avowed State interest in promoting marriage as the foundation of the family, which in turn serves as the foundation of the nation, there is a corresponding interest for the State to defend against marriages ill-equipped to promote family life. Void ab initio marriages under Article 36 do not further the initiatives of the State concerning marriage and family, as they promote wedlock among persons who, for reasons independent of their will, are not capacitated to understand or comply with the essential obligations of marriage.42

(Emphasis supplied)

WHEREFORE, the Court GRANTS the Motion for Reconsideration; REVERSES and SETS ASIDE the decision promulgated on September 19, 2011; and REINSTATES the decision rendered by the Regional Trial Court declaring the marriage between the petitioner and the respondent on November 4, 1976 as NULL AND VOID AB JN/TIO due to the psychological incapacity of the parties pursuant to Article 36 of the Family Code.

No pronouncement on costs of suit.

SO ORDERED.

42 Antonio v. Reyes, supra note 17, at 371-373.

Resolution 25

WE CONCUR:

~~~~ TERESITA J. LEONARDO DE CASTRO

Associate Justice Chairperson

,Lu b~ fl;Jl~/111'"-

p~~;? %~ANO C. DEL CASTILLO JOS

Associate Justice

Associate Justice

CERTIFICATION

G.R. No. 166357

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO Chief Justice

3Republit of tbe ~btlippineg

~upreme C!Court manila

SECOND DIVISION

DAVID A. NOVERAS, G.R. No. 188289 Petitioner,

-versus-

Present:

SERENO,* CJ, CARPIO, J.,

Chairperson, VELASCO, JR.,** DEL CASTILLO, and PEREZ, .!.!.

Promulgated: LETICIA T. NOVERAS,

Respondent. AUG 2 0 20 x------------------------------------------------------------------------------------==---- x

DECISION

PEREZ, J:

Before the Court is a petition for review assailing the 9 May 2008 Decision 1 of the Court of Appeals in CA-G.R .. CV No. 88686, which affirmed in part the 8 December 2006 Decision2 of the Regional Trial Court (RTC) of Baler, Aurora, Branch 96.

The factual antecedents are as follow:

David A. Noveras (David) and Leticia T. Noveras (Leticia) were married on 3 December 1988 in Quezon City, Philippines. They resided in California, United States of America (USA) where they eventually acquired

* **

Per Raffle dated 28 July 2014. Per Special Order No. 1757 dated 20 August 2014. Penned by Associate Justice Estela M. Perlas-Bernabe (now Supreme Court Associate Justice)

Presided by Judge Corazon D. Soluren. Records, pp. 262-288.

with Associate Justices Portia Aliflo-Hormachuelos and Rosmari D. Carandang, concurring. ~ Rollo, pp. 26-37.

lit!

Decision 2 G.R. No. 188289

American citizenship. They then begot two children, namely: Jerome T. Noveras, who was born on 4 November 1990 and Jena T. Noveras, born on 2 May 1993. David was engaged in courier service business while Leticia worked as a nurse in San Francisco, California.

During the marriage, they acquired the following properties in the Philippines and in the USA:

PHILIPPINES

PROPERTY FAIR MARKET VALUE House and Lot with an area of 150 sq. m. located at 1085 Norma Street, Sampaloc, Manila (Sampaloc property)

P1,693,125.00

Agricultural land with an area of 20,742 sq. m. located at Laboy, Dipaculao, Aurora

P400,000.00

A parcel of land with an area of 2.5 hectares located at Maria Aurora, Aurora

P490,000.00

A parcel of land with an area of 175 sq.m. located at Sabang Baler, Aurora

P175,000.003

3-has. coconut plantation in San Joaquin Maria Aurora, Aurora

P750,000.00

USA

PROPERTY FAIR MARKET VALUE

House and Lot at 1155 Hanover Street, Daly City, California

$550,000.00 (unpaid debt of $285,000.00)

Furniture and furnishings

$3,000

Jewelries (ring and watch)

$9,000

2000 Nissan Frontier 4x4 pickup truck

$13,770.00

Bank of America Checking Account

$8,000

Bank of America Cash Deposit

$10,000.00

Life Insurance (Cash Value) $100,000.00

3 Id. at 2.


Retirement, pension, profit-sharing, annuities

$56,228.004

The Sampaloc property used to be owned by David’s parents. The parties herein secured a loan from a bank and mortgaged the property. When said property was about to be foreclosed, the couple paid a total of P1.5 Million for the redemption of the same.

Due to business reverses, David left the USA and returned to the Philippines in 2001. In December 2002, Leticia executed a Special Power of Attorney (SPA) authorizing David to sell the Sampaloc property for P2.2 Million. According to Leticia, sometime in September 2003, David abandoned his family and lived with Estrellita Martinez in Aurora province. Leticia claimed that David agreed to and executed a Joint Affidavit with Leticia in the presence of David’s father, Atty. Isaias Noveras, on 3 December 2003 stating that: 1) the P1.1Million proceeds from the sale of the Sampaloc property shall be paid to and collected by Leticia; 2) that David shall return and pay to Leticia P750,000.00, which is equivalent to half of the amount of the redemption price of the Sampaloc property; and 3) that David shall renounce and forfeit all his rights and interest in the conjugal and real properties situated in the Philippines.5 David was able to collect P1,790,000.00 from the sale of the Sampaloc property, leaving an unpaid balance of P410,000.00.

Upon learning that David had an extra-marital affair, Leticia filed a petition for divorce with the Superior Court of California, County of San Mateo, USA. The California court granted the divorce on 24 June 2005 and judgment was duly entered on 29 June 2005.6 The California court granted to Leticia the custody of her two children, as well as all the couple’s properties in the USA.7

On 8 August 2005, Leticia filed a petition for Judicial Separation of Conjugal Property before the RTC of Baler, Aurora. She relied on the 3 December 2003 Joint Affidavit and David’s failure to comply with his obligation under the same. She prayed for: 1) the power to administer all conjugal properties in the Philippines; 2) David and his partner to cease and desist from selling the subject conjugal properties; 3) the declaration that all conjugal properties be forfeited in favor of her children; 4) David to remit half of the purchase price as share of Leticia from the sale of the Sampaloc

4 Id. at 27-28. 5 Id. at 16. 6 Id. at 77. 7 Id. at 79-81.


property; and 5) the payment of P50,000.00 and P100,000.00 litigation expenses.8

In his Answer, David stated that a judgment for the dissolution of their marriage was entered on 29 June 2005 by the Superior Court of California, County of San Mateo. He demanded that the conjugal partnership properties, which also include the USA properties, be liquidated and that all expenses of liquidation, including attorney’s fees of both parties be charged against the conjugal partnership.9

The RTC of Baler, Aurora simplified the issues as follow:

1. Whether or not respondent David A. Noveras committed acts of abandonment and marital infidelity which can result into the forfeiture of the parties’ properties in favor of the petitioner and their two (2) children.

2. Whether or not the Court has jurisdiction over the properties in California, U.S.A. and the same can be included in the judicial separation prayed for.

3. Whether or not the “Joint Affidavit” x x x executed by petitioner Leticia T. Noveras and respondent David A. Noveras will amount to a waiver or forfeiture of the latter’s property rights over their conjugal properties.

4. Whether or not Leticia T. Noveras is entitled to reimbursement of one-half of the P2.2 [M]illion sales proceeds of their property in Sampaloc, Manila and one-half of the P1.5 [M]illion used to redeem the property of Atty. Isaias Noveras, including interests and charges.

5. How the absolute community properties should be distributed. 6. Whether or not the attorney’s fees and litigation expenses of the

parties were chargeable against their conjugal properties. Corollary to the above is the issue of: Whether or not the two common children of the parties are entitled to support and presumptive legitimes.10

On 8 December 2006, the RTC rendered judgment as follows:

1. The absolute community of property of the parties is hereby declared DISSOLVED;

2. The net assets of the absolute community of property of the parties in the Philippines are hereby ordered to be awarded to respondent David

8 Id. at 4-5. 9 Id. at 23-26. 10 Id. at 267.


A. Noveras only, with the properties in the United States of America remaining in the sole ownership of petitioner Leticia Noveras a.k.a. Leticia Tacbiana pursuant to the divorce decree issued by the Superior Court of California, County of San Mateo, United States of America, dissolving the marriage of the parties as of June 24, 2005. The titles presently covering said properties shall be cancelled and new titles be issued in the name of the party to whom said properties are awarded;

3. One-half of the properties awarded to respondent David A. Noveras in the preceding paragraph are hereby given to Jerome and Jena, his two minor children with petitioner Leticia Noveras a.k.a. Leticia Tacbiana as their presumptive legitimes and said legitimes must be annotated on the titles covering the said properties. Their share in the income from these properties shall be remitted to them annually by the respondent within the first half of January of each year, starting January 2008;

4. One-half of the properties in the United States of America awarded to petitioner Leticia Noveras a.k.a. Leticia Tacbiana in paragraph 2 are hereby given to Jerome and Jena, her two minor children with respondent David A. Noveras as their presumptive legitimes and said legitimes must be annotated on the titles/documents covering the said properties. Their share in the income from these properties, if any, shall be remitted to them annually by the petitioner within the first half of January of each year, starting January 2008;

5. For the support of their two (2) minor children, Jerome and Jena, respondent David A. Noveras shall give them US$100.00 as monthly allowance in addition to their income from their presumptive legitimes, while petitioner Leticia Tacbiana shall take care of their food, clothing, education and other needs while they are in her custody in the USA. The monthly allowance due from the respondent shall be increased in the future as the needs of the children require and his financial capacity can afford;

6. Of the unpaid amount of P410,000.00 on the purchase price of the Sampaloc property, the Paringit Spouses are hereby ordered to pay P5,000.00 to respondent David A. Noveras and P405,000.00 to the two children. The share of the respondent may be paid to him directly but the share of the two children shall be deposited with a local bank in Baler, Aurora, in a joint account to be taken out in their names, withdrawal from which shall only be made by them or by their representative duly authorized with a Special Power of Attorney. Such payment/deposit shall be made within the period of thirty (30) days after receipt of a copy of this Decision, with the passbook of the joint account to be submitted to the custody of the Clerk of Court of this Court within the same period. Said passbook can be withdrawn from the Clerk of Court only by the children or their attorney-in-fact; and

7. The litigation expenses and attorney’s fees incurred by the parties shall

be shouldered by them individually.11

11 Id. at 287-288.


The trial court recognized that since the parties are US citizens, the laws that cover their legal and personal status are those of the USA. With respect to their marriage, the parties are divorced by virtue of the decree of dissolution of their marriage issued by the Superior Court of California, County of San Mateo on 24 June 2005. Under their law, the parties’ marriage had already been dissolved. Thus, the trial court considered the petition filed by Leticia as one for liquidation of the absolute community of property regime with the determination of the legitimes, support and custody of the children, instead of an action for judicial separation of conjugal property.

With respect to their property relations, the trial court first classified their property regime as absolute community of property because they did not execute any marriage settlement before the solemnization of their marriage pursuant to Article 75 of the Family Code. Then, the trial court ruled that in accordance with the doctrine of processual presumption, Philippine law should apply because the court cannot take judicial notice of the US law since the parties did not submit any proof of their national law. The trial court held that as the instant petition does not fall under the provisions of the law for the grant of judicial separation of properties, the absolute community properties cannot be forfeited in favor of Leticia and her children. Moreover, the trial court observed that Leticia failed to prove abandonment and infidelity with preponderant evidence.

The trial court however ruled that Leticia is not entitled to the reimbursements she is praying for considering that she already acquired all of the properties in the USA. Relying still on the principle of equity, the Court also adjudicated the Philippine properties to David, subject to the payment of the children’s presumptive legitimes. The trial court held that under Article 89 of the Family Code, the waiver or renunciation made by David of his property rights in the Joint Affidavit is void.

On appeal, the Court of Appeals modified the trial court’s Decision by directing the equal division of the Philippine properties between the spouses. Moreover with respect to the common children’s presumptive legitime, the appellate court ordered both spouses to each pay their children the amount of P520,000.00, thus:

WHEREFORE, the instant appeal is PARTLY GRANTED. Numbers 2, 4 and 6 of the assailed Decision dated December 8, 2006 of Branch 96, RTC of Baler, Aurora Province, in Civil Case No. 828 are hereby MODIFIED to read as follows:


2. The net assets of the absolute community of property of the parties in the Philippines are hereby divided equally between petitioner Leticia Noveras a.k.a. Leticia Tacbiana (sic) and respondent David A. Noveras;

x x x 4. One-half of the properties awarded to petitioner Leticia Tacbiana (sic) in paragraph 2 shall pertain to her minor children, Jerome and Jena, as their presumptive legitimes which shall be annotated on the titles/documents covering the said properties. Their share in the income therefrom, if any, shall be remitted to them by petitioner annually within the first half of January, starting 2008;

x x x 6. Respondent David A. Noveras and petitioner Leticia Tacbiana (sic) are each ordered to pay the amount of P520,000.00 to their two children, Jerome and Jena, as their presumptive legitimes from the sale of the Sampaloc property inclusive of the receivables therefrom, which shall be deposited to a local bank of Baler, Aurora, under a joint account in the latter’s names. The payment/deposit shall be made within a period of thirty (30) days from receipt of a copy of this Decision and the corresponding passbook entrusted to the custody of the Clerk of Court a quo within the same period, withdrawable only by the children or their attorney-in-fact. A number 8 is hereby added, which shall read as follows: 8. Respondent David A. Noveras is hereby ordered to pay petitioner Leticia Tacbiana (sic) the amount of P1,040,000.00 representing her share in the proceeds from the sale of the Sampaloc property. The last paragraph shall read as follows: Send a copy of this Decision to the local civil registry of Baler, Aurora; the local civil registry of Quezon City; the Civil Registrar-General, National Statistics Office, Vibal Building, Times Street corner EDSA, Quezon City; the Office of the Registry of Deeds for the Province of Aurora; and to the children, Jerome Noveras and Jena Noveras. The rest of the Decision is AFFIRMED.12

In the present petition, David insists that the Court of Appeals should have recognized the California Judgment which awarded the Philippine properties to him because said judgment was part of the pleading presented and offered in evidence before the trial court. David argues that allowing Leticia to share in the Philippine properties is tantamount to unjust enrichment in favor of Leticia considering that the latter was already granted all US properties by the California court. 12 Rollo, pp. 36-37.


In summary and review, the basic facts are: David and Leticia are US citizens who own properties in the USA and in the Philippines. Leticia obtained a decree of divorce from the Superior Court of California in June 2005 wherein the court awarded all the properties in the USA to Leticia. With respect to their properties in the Philippines, Leticia filed a petition for judicial separation of conjugal properties.

At the outset, the trial court erred in recognizing the divorce decree which severed the bond of marriage between the parties. In Corpuz v. Sto. Tomas,13 we stated that:

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.” This means that the foreign judgment and its authenticity must be proven as facts under our rules on evidence, together with the alien’s applicable national law to show the effect of the judgment on the alien himself or herself. 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.14

The requirements of presenting the foreign divorce decree and the national law of the foreigner must comply with our Rules of Evidence. Specifically, for Philippine courts to recognize a foreign judgment relating to the status of a marriage, a copy of the foreign judgment may be admitted in evidence and proven as a fact under Rule 132, Sections 24 and 25, in relation to Rule 39, Section 48(b) of the Rules of Court.15

Under Section 24 of Rule 132, the record of public documents of a sovereign authority or tribunal may be proved by: (1) an official publication thereof or (2) a copy attested by the officer having the legal custody thereof. Such official publication or copy must be accompanied, if the record is not kept in the Philippines, with a certificate that the attesting officer has the legal custody thereof. The certificate may be issued by any of the authorized Philippine embassy or consular officials stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. The attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be, and must be under the official seal of the attesting officer. 13 G.R. No. 186571, 11 August 2010, 628 SCRA 266. 14 Id. at 281-282. 15 Fujiki v. Marinay, G.R. No. 196049, 26 June 2013.


Section 25 of the same Rule states that whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court.

Based on the records, only the divorce decree was presented in evidence. The required certificates to prove its authenticity, as well as the pertinent California law on divorce were not presented.

It may be noted that in Bayot v. Court of Appeals,16 we relaxed the requirement on certification where we held that “[petitioner therein] was clearly an American citizen when she secured the divorce and that divorce is recognized and allowed in any of the States of the Union, the presentation of a copy of foreign divorce decree duly authenticated by the foreign court issuing said decree is, as here, sufficient.” In this case however, it appears that there is no seal from the office where the divorce decree was obtained.

Even if we apply the doctrine of processual presumption17 as the lower courts did with respect to the property regime of the parties, the recognition of divorce is entirely a different matter because, to begin with, divorce is not recognized between Filipino citizens in the Philippines.

Absent a valid recognition of the divorce decree, it follows that the parties are still legally married in the Philippines. The trial court thus erred in proceeding directly to liquidation.

As a general rule, any modification in the marriage settlements must be made before the celebration of marriage. An exception to this rule is allowed provided that the modification is judicially approved and refers only to the instances provided in Articles 66, 67, 128, 135 and 136 of the Family Code.18

Leticia anchored the filing of the instant petition for judicial separation of property on paragraphs 4 and 6 of Article 135 of the Family Code, to wit: 16 591 Phil. 452, 470 (2008). 17 Processual presumption means that where a foreign law is not pleaded or, even if pleaded, is not

proved, the presumption is that foreign law is the same as ours. See EDI-Staffbuilders Int’l. Inc. v. NLRC, 563 Phil. 1, 22 (2007).

18 Sta. Maria, Persons and Family Relations Law, Fourth Edition, 2004, p. 396.


Art. 135. Any of the following shall be considered sufficient cause for judicial separation of property: (1) That the spouse of the petitioner has been sentenced to a penalty

which carries with it civil interdiction; (2) That the spouse of the petitioner has been judicially declared an

absentee; (3) That loss of parental authority of the spouse of petitioner has been

decreed by the court; (4) That the spouse of the petitioner has abandoned the latter or

failed to comply with his or her obligations to the family as provided for in Article 101;

(5) That the spouse granted the power of administration in the marriage settlements has abused that power; and

(6) That at the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable.

In the cases provided for in Numbers (1), (2), and (3), the presentation of the final judgment against the guilty or absent spouse shall be enough basis for the grant of the decree of judicial separation of property. (Emphasis supplied).

The trial court had categorically ruled that there was no abandonment in this case to necessitate judicial separation of properties under paragraph 4 of Article 135 of the Family Code. The trial court ratiocinated:

Moreover, abandonment, under Article 101 of the Family Code quoted above, must be for a valid cause and the spouse is deemed to have abandoned the other when he/she has left the conjugal dwelling without intention of returning. The intention of not returning is prima facie presumed if the allegedly [sic] abandoning spouse failed to give any information as to his or her whereabouts within the period of three months from such abandonment. In the instant case, the petitioner knows that the respondent has returned to and stayed at his hometown in Maria Aurora, Philippines, as she even went several times to visit him there after the alleged abandonment. Also, the respondent has been going back to the USA to visit her and their children until the relations between them worsened. The last visit of said respondent was in October 2004 when he and the petitioner discussed the filing by the latter of a petition for dissolution of marriage with the California court. Such turn for the worse of their relationship and the filing of the said petition can also be considered as valid causes for the respondent to stay in the Philippines.19

19 Records, p. 280.


Separation in fact for one year as a ground to grant a judicial separation of property was not tackled in the trial court’s decision because, the trial court erroneously treated the petition as liquidation of the absolute community of properties.

The records of this case are replete with evidence that Leticia and David had indeed separated for more than a year and that reconciliation is highly improbable. First, while actual abandonment had not been proven, it is undisputed that the spouses had been living separately since 2003 when David decided to go back to the Philippines to set up his own business. Second, Leticia heard from her friends that David has been cohabiting with Estrellita Martinez, who represented herself as Estrellita Noveras. Editha Apolonio, who worked in the hospital where David was once confined, testified that she saw the name of Estrellita listed as the wife of David in the Consent for Operation form.20 Third and more significantly, they had filed for divorce and it was granted by the California court in June 2005.

Having established that Leticia and David had actually separated for at least one year, the petition for judicial separation of absolute community of property should be granted.

The grant of the judicial separation of the absolute community property automatically dissolves the absolute community regime, as stated in the 4th paragraph of Article 99 of the Family Code, thus:

Art. 99. The absolute community terminates:

(1) Upon the death of either spouse; (2) When there is a decree of legal separation; (3) When the marriage is annulled or declared void; or (4) In case of judicial separation of property during the marriage

under Articles 134 to 138. (Emphasis supplied).

Under Article 102 of the same Code, liquidation follows the dissolution of the absolute community regime and the following procedure should apply:

Art. 102. Upon dissolution of the absolute community regime, the following procedure shall apply:

(1) An inventory shall be prepared, listing separately all the properties of

the absolute community and the exclusive properties of each spouse. 20 TSN, 9 March 2006, p. 13.


(2) The debts and obligations of the absolute community shall be paid out of its assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties in accordance with the provisions of the second paragraph of Article 94.

(3) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them.

(4) The net remainder of the properties of the absolute community shall constitute its net assets, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements, or unless there has been a voluntary waiver of such share provided in this Code. For purposes of computing the net profits subject to forfeiture in accordance with Articles 43, No. (2) and 63, No. (2), the said profits shall be the increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution.

(5) The presumptive legitimes of the common children shall be delivered upon partition, in accordance with Article 51.

(6) Unless otherwise agreed upon by the parties, in the partition of the properties, the conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there is no such majority, the court shall decide, taking into consideration the best interests of said children.

At the risk of being repetitious, we will not remand the case to the trial court. Instead, we shall adopt the modifications made by the Court of Appeals on the trial court’s Decision with respect to liquidation.

We agree with the appellate court that the Philippine courts did not acquire jurisdiction over the California properties of David and Leticia. Indeed, Article 16 of the Civil Code clearly states that real property as well as personal property is subject to the law of the country where it is situated. Thus, liquidation shall only be limited to the Philippine properties.

We affirm the modification made by the Court of Appeals with respect to the share of the spouses in the absolute community properties in the Philippines, as well as the payment of their children’s presumptive legitimes, which the appellate court explained in this wise:

Leticia and David shall likewise have an equal share in the proceeds of the Sampaloc property. While both claimed to have contributed to the redemption of the Noveras property, absent a clear showing where their contributions came from, the same is presumed to


have come from the community property. Thus, Leticia is not entitled to reimbursement of half of the redemption money.

David's allegation that he used part of the proceeds from the sale of the Sampaloc property for the benefit of the absolute community cannot be given full credence. Only the amount oflll 20,000.00 incurred in going to and from the U.S.A. may be charged thereto. Election expenses in the amount of P.300,000.00 when he ran as municipal councilor cannot be allowed in the absence of receipts or at least the Statement of Contributions and Expenditures required under Section 14 of Republic Act No. 7166 duly received by the Commission on Elections. Likewise, expenses incurred to settle the criminal case of his personal driver is not deductible as the same had not benefited the family. In sum, Leticia and David shall share equally in the proceeds of the sale net of the amount of P-120,000.00 or in the respective amounts of P-1,040,000.00.

xx xx

Under the first paragraph of Article 888 of the Civil Code, "(t)he legitime of legitimate children and descendants consists of one-half or the hereditary estate of the father and of the mother." The children arc therefore entitled to half of the share of each spouse in the net assets of the absolute community, which shall be annotated on the titles/documents covering the same, as well as to their respective shares in the net proceeds from the sale of the Sampaloc property including the receivables from Sps. Paringit in the amount of P.410,000.00. Consequently, David and Leticia should each pay them the amount of P.520,000.00 as their presumptive

1 . . h fi 21 eg1t1mes t ere rom.

WHEREFORE, the petition is DENIED. The assailed Decision of the Court of Appeals in CA G.R. CV No. 88686 is AFFIRMED.

SO ORDERED.

JO j'REZ

21 Rollo, pp. 34-35.

Decision

WE CONCUR:

14

MARIA LOURDES P.A. SERENO Chief Justice

G.R. No. 188289

J. VELASCO, JR. Associate Justice

Chairperson

~c? MARIANO C. DEL CASTILLO

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

az: ANTONIOT. C

Associate Justice Second Division Chairperson


CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.


Republic of the Philippines

SUPREME COURT Manila

THIRD DIVISION

G.R. No. 193707 December 10, 2014

NORMA A. DEL SOCORRO, for and in behalf of her minor child RODERIGO NORJO VAN WILSEM, Petitioner, vs.

ERNST JOHAN BRINKMAN VAN WILSEM, Respondent.

D E C I S I O N

PERALTA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to reverse and

set aside the Orders1 dated February 19, 2010 and September 1, 2010, respectively, of the Regional Trial Court of

Cebu City (RTC-Cebu), which dismissed the criminal case entitled People of the Philippines v. Ernst Johan

Brinkman Van Wilsem, docketed as Criminal Case No. CBU-85503, for violation of Republic Act (R.A.) No. 9262, otherwise known as the Anti-Violence Against Women and Their Children Act of 2004.

The following facts are culled from the records:

Petitioner Norma A. Del Socorro and respondent Ernst Johan Brinkman Van Wilsem contracted marriage in

Holland on September 25, 1990.2 On January 19, 1994, they were blessed with a son named Roderigo Norjo Van

Wilsem, who at the time of the filing of the instant petition was sixteen (16) years of age.3

Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a Divorce Decree issued by the

appropriate Court of Holland.4 At that time, their son was only eighteen (18) months old.5 Thereafter, petitioner

and her son came home to the Philippines.6

According to petitioner, respondentmade a promise to provide monthly support to their son in the amount of

Two Hundred Fifty (250) Guildene (which is equivalent to Php17,500.00 more or less).7 However, since the arrival

of petitioner and her son in the Philippines, respondent never gave support to the son, Roderigo.8

Not long thereafter, respondent cameto the Philippines and remarried in Pinamungahan, Cebu, and since then,

have been residing thereat.9 Respondent and his new wife established a business known as Paree Catering, located

at Barangay Tajao, Municipality of Pinamungahan, Cebu City.10 To date, all the parties, including their son, Roderigo, are presently living in Cebu City.11

On August 28, 2009, petitioner, through her counsel, sent a letter demanding for support from respondent. However, respondent refused to receive the letter.12

Because of the foregoing circumstances, petitioner filed a complaint affidavit with the Provincial Prosecutor of

Cebu City against respondent for violation of Section 5, paragraph E(2) of R.A. No. 9262 for the latter’s unjust refusal to support his minor child with petitioner.13 Respondent submitted his counter-affidavit thereto, to which

petitioner also submitted her reply-affidavit.14 Thereafter, the Provincial Prosecutor of Cebu City issued a

Resolution recommending the filing of an information for the crime charged against herein respondent.

The information, which was filed with the RTC-Cebu and raffled to Branch 20 thereof, states that:

http://www.lawphil.net/judjuris/juri2014/dec2014/gr_193707_2014.html#fnt1














That sometime in the year 1995 and up to the present, more or less, in the Municipality of Minglanilla, Province of

Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and deliberately deprive, refuse and still continue to deprive his son RODERIGO NORJO

VAN WILSEM, a fourteen (14) year old minor, of financial support legally due him, resulting in economic abuse to

the victim. CONTRARY TO LAW.15

Upon motion and after notice and hearing, the RTC-Cebu issued a Hold Departure Order against

respondent.16Consequently, respondent was arrested and, subsequently, posted bail.17 Petitioner also filed a

Motion/Application of Permanent Protection Order to which respondent filed his Opposition.18 Pending the

resolution thereof, respondent was arraigned.19 Subsequently, without the RTC-Cebu having resolved the application of the protection order, respondent filed a Motion to Dismiss on the ground of: (1) lack of jurisdiction

over the offense charged; and (2) prescription of the crime charged.20

On February 19, 2010, the RTC-Cebu issued the herein assailed Order,21 dismissing the instant criminal case against respondent on the ground that the facts charged in the information do not constitute an offense with

respect to the respondent who is analien, the dispositive part of which states:

WHEREFORE, the Court finds that the facts charged in the information do not constitute an offense with respect

to the accused, he being an alien, and accordingly, orders this case DISMISSED.

The bail bond posted by accused Ernst Johan Brinkman Van Wilsem for his provisional liberty ishereby cancelled (sic) and ordered released.

SO ORDERED.

Cebu City, Philippines, February 19, 2010.22

Thereafter, petitioner filed her Motion for Reconsideration thereto reiterating respondent’s obligation to support their child under Article 19523 of the Family Code, thus, failure todo so makes him liable under R.A. No. 9262

which "equally applies to all persons in the Philippines who are obliged to support their minor children regardless

of the obligor’s nationality."24

On September 1, 2010, the lower court issued an Order25 denying petitioner’s Motion for Reconsideration and

reiterating its previous ruling. Thus:

x x x The arguments therein presented are basically a rehash of those advanced earlier in the memorandum of the

prosecution. Thus, the court hereby reiterates its ruling that since the accused is a foreign national he is not

subject to our national law (The Family Code) in regard to a parent’s duty and obligation to givesupport to his

child. Consequently, he cannot be charged of violating R.A. 9262 for his alleged failure to support his child. Unless it is conclusively established that R.A. 9262 applies to a foreigner who fails to give support tohis child,

notwithstanding that he is not bound by our domestic law which mandates a parent to give such support, it is the

considered opinion of the court that no prima faciecase exists against the accused herein, hence, the case should

be dismissed.

WHEREFORE, the motion for reconsideration is hereby DENIED for lack of merit.

SO ORDERED.

Cebu City, Philippines, September 1, 2010.26

Hence, the present Petition for Review on Certiorari raising the following issues:

1. Whether or not a foreign national has an obligation to support his minor child under Philippine law; and













2. Whether or not a foreign national can be held criminally liable under R.A. No. 9262 for his unjustified

failure to support his minor child.27

At the outset, let it be emphasized that We are taking cognizance of the instant petition despite the fact that the

same was directly lodged with the Supreme Court, consistent with the ruling in Republic v. Sunvar Realty

Development Corporation,28 which lays down the instances when a ruling of the trial court may be brought on appeal directly to the Supreme Court without violating the doctrine of hierarchy of courts, to wit:

x x x Nevertheless, the Rules do not prohibit any of the parties from filing a Rule 45 Petition with this Court, in

case only questions of law are raised or involved. This latter situation was one that petitioners found themselves in when they filed the instant Petition to raise only questions of law. In Republic v. Malabanan, the Court clarified the

three modes of appeal from decisions of the RTC, to wit: (1) by ordinary appeal or appeal by writ of error under

Rule 41, whereby judgment was rendered in a civil or criminal action by the RTC in the exercise of its original

jurisdiction; (2) by a petition for review under Rule 42, whereby judgment was rendered by the RTC in the exercise of its appellate jurisdiction; and (3) by a petition for review on certiorari before the Supreme Court under

Rule 45. "The first mode of appeal is taken to the [Court of Appeals] on questions of fact or mixed questions of

fact and law. The second mode of appeal is brought to the CA on questions of fact, of law, or mixed questions of

fact and law. The third mode of appealis elevated to the Supreme Court only on questions of law." (Emphasis supplied)

There is a question of law when the issue does not call for an examination of the probative value of the evidence presented or of the truth or falsehood of the facts being admitted, and the doubt concerns the correct application

of law and jurisprudence on the matter. The resolution of the issue must rest solely on what the law provides on

the given set of circumstances.29

Indeed, the issues submitted to us for resolution involve questions of law – the response thereto concerns the

correct application of law and jurisprudence on a given set of facts, i.e.,whether or not a foreign national has an

obligation to support his minor child under Philippine law; and whether or not he can be held criminally liable

under R.A. No. 9262 for his unjustified failure to do so.

It cannot be negated, moreover, that the instant petition highlights a novel question of law concerning the liability

of a foreign national who allegedly commits acts and omissions punishable under special criminal laws, specifically in

relation to family rights and duties. The inimitability of the factual milieu of the present case, therefore, deserves a definitive ruling by this Court, which will eventually serve as a guidepost for future cases. Furthermore, dismissing

the instant petition and remanding the same to the CA would only waste the time, effort and resources of the

courts. Thus, in the present case, considerations of efficiency and economy in the administration of justice should

prevail over the observance of the hierarchy of courts.

Now, on the matter of the substantive issues, We find the petition meritorious. Nonetheless, we do not fully

agree with petitioner’s contentions.

To determine whether or not a person is criminally liable under R.A. No. 9262, it is imperative that the legal

obligation to support exists.

Petitioner invokes Article 19530 of the Family Code, which provides the parent’s obligation to support his child.

Petitioner contends that notwithstanding the existence of a divorce decree issued in relation to Article 26 of the

Family Code,31 respondent is not excused from complying with his obligation to support his minor child with

petitioner.

On the other hand, respondent contends that there is no sufficient and clear basis presented by petitioner that

she, as well as her minor son, are entitled to financial support.32 Respondent also added that by reason of the Divorce Decree, he is not obligated topetitioner for any financial support.33








On this point, we agree with respondent that petitioner cannot rely on Article 19534 of the New Civil Code in

demanding support from respondent, who is a foreign citizen, since Article 1535 of the New Civil Code stresses the principle of nationality. In other words, insofar as Philippine laws are concerned, specifically the provisions of the

Family Code on support, the same only applies to Filipino citizens. By analogy, the same principle applies to

foreigners such that they are governed by their national law with respect to family rights and duties.36

The obligation to give support to a child is a matter that falls under family rights and duties. Since the respondent is

a citizen of Holland or the Netherlands, we agree with the RTC-Cebu that he is subject to the laws of his country,

not to Philippinelaw, as to whether he is obliged to give support to his child, as well as the consequences of his

failure to do so.37

In the case of Vivo v. Cloribel,38 the Court held that –

Furthermore, being still aliens, they are not in position to invoke the provisions of the Civil Code of the

Philippines, for that Code cleaves to the principle that family rights and duties are governed by their personal law,

i.e.,the laws of the nation to which they belong even when staying in a foreign country (cf. Civil Code, Article 15).39

It cannot be gainsaid, therefore, that the respondent is not obliged to support petitioner’s son under Article195 of

the Family Code as a consequence of the Divorce Covenant obtained in Holland. This does not, however, mean

that respondent is not obliged to support petitioner’s son altogether.

In international law, the party who wants to have a foreign law applied to a dispute or case has the burden of

proving the foreign law.40 In the present case, respondent hastily concludes that being a national of the

Netherlands, he is governed by such laws on the matter of provision of and capacity to support.41 While

respondent pleaded the laws of the Netherlands in advancing his position that he is not obliged to support his son, he never proved the same.

It is incumbent upon respondent to plead and prove that the national law of the Netherlands does not impose upon the parents the obligation to support their child (either before, during or after the issuance of a divorce

decree), because Llorente v. Court of Appeals,42 has already enunciated that:

True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to takejudicial notice of them. Like any other fact, they must be alleged and proved.43

In view of respondent’s failure to prove the national law of the Netherlands in his favor, the doctrine of processual

presumption shall govern. Under this doctrine, if the foreign law involved is not properly pleaded and proved, our courts will presume that the foreign law is the same as our local or domestic or internal law.44 Thus, since the law

of the Netherlands as regards the obligation to support has not been properly pleaded and proved in the instant

case, it is presumed to be the same with Philippine law, which enforces the obligation of parents to support their

children and penalizing the non-compliance therewith.

Moreover, while in Pilapil v. Ibay-Somera,45 the Court held that a divorce obtained in a foreign land as well as its

legal effects may be recognized in the Philippines in view of the nationality principle on the matter of status of persons, the Divorce Covenant presented by respondent does not completely show that he is notliable to give

support to his son after the divorce decree was issued. Emphasis is placed on petitioner’s allegation that under the

second page of the aforesaid covenant, respondent’s obligation to support his child is specifically stated,46 which

was not disputed by respondent.

We likewise agree with petitioner that notwithstanding that the national law of respondent states that parents

have no obligation to support their children or that such obligation is not punishable by law, said law would still

not find applicability,in light of the ruling in Bank of America, NT and SA v. American Realty Corporation,47 to wit:















In the instant case, assuming arguendo that the English Law on the matter were properly pleaded and proved in

accordance with Section 24, Rule 132 of the Rules of Court and the jurisprudence laid down in Yao Kee, et al. vs. Sy-Gonzales, said foreign law would still not find applicability.

Thus, when the foreign law, judgment or contract is contrary to a sound and established public policy of the forum,

the said foreign law, judgment or order shall not be applied.

Additionally, prohibitive laws concerning persons, their acts or property, and those which have for their object

public order, public 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.

The public policy sought to be protected in the instant case is the principle imbedded in our jurisdiction

proscribing the splitting up of a single cause of action.

Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent

—

If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon

the merits in any one is available as a ground for the dismissal of the others. Moreover, foreign law should not be applied when its application would work undeniable injustice to the citizens or residents of the forum. To give

justice is the most important function of law; hence, a law, or judgment or contract that is obviously unjust negates

the fundamental principles of Conflict of Laws.48

Applying the foregoing, even if the laws of the Netherlands neither enforce a parent’s obligation to support his

child nor penalize the noncompliance therewith, such obligation is still duly enforceable in the Philippines because it

would be of great injustice to the child to be denied of financial support when the latter is entitled thereto.

We emphasize, however, that as to petitioner herself, respondent is no longer liable to support his former wife, in

consonance with the ruling in San Luis v. San Luis,49 to wit:

As to the effect of the divorce on the Filipino wife, the Court ruled that she should no longerbe considered

marriedto the alien spouse. Further, she should not be required to perform her marital duties and obligations. It

held:

To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to

private respondent and still subject to a 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. (Emphasis

added)50

Based on the foregoing legal precepts, we find that respondent may be made liable under Section 5(e) and (i) of R.A. No. 9262 for unjustly refusing or failing to give support topetitioner’s son, to wit:

SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against women and their children is committed through any of the following acts:

x x x x

(e) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her

child has the right to desist from or desist from conduct which the woman or her child has the right to engage in,

or attempting to restrict or restricting the woman's or her child's freedom of movement or conduct by force or




threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the

woman or child. This shall include, butnot limited to, the following acts committed with the purpose or effect of controlling or restricting the woman's or her child's movement or conduct:

x x x x

(2) Depriving or threatening to deprive the woman or her children of financial support legally due her or her

family, or deliberately providing the woman's children insufficient financial support; x x x x

(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not

limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor childrenof

access to the woman's child/children.51

Under the aforesaid special law, the deprivation or denial of financial support to the child is considered anact of

violence against women and children.

In addition, considering that respondent is currently living in the Philippines, we find strength in petitioner’s claim that the Territoriality Principle in criminal law, in relation to Article 14 of the New Civil Code, applies to the

instant case, which provides that: "[p]enal laws and those of public security and safety shall be obligatory upon all

who live and sojourn in Philippine territory, subject to the principle of public international law and to treaty

stipulations." On this score, it is indisputable that the alleged continuing acts of respondent in refusing to support his child with petitioner is committed here in the Philippines as all of the parties herein are residents of the

Province of Cebu City. As such, our courts have territorial jurisdiction over the offense charged against

respondent. It is likewise irrefutable that jurisdiction over the respondent was acquired upon his arrest.

Finally, we do not agree with respondent’s argument that granting, but not admitting, that there is a legal basis for

charging violation of R.A. No. 9262 in the instant case, the criminal liability has been extinguished on the ground of

prescription of crime52 under Section 24 of R.A. No. 9262, which provides that:

SECTION 24. Prescriptive Period. – Acts falling under Sections 5(a) to 5(f) shall prescribe in twenty (20) years.

Acts falling under Sections 5(g) to 5(I) shall prescribe in ten (10) years.

The act of denying support to a child under Section 5(e)(2) and (i) of R.A. No. 9262 is a continuing offense,53 which

started in 1995 but is still ongoing at present. Accordingly, the crime charged in the instant case has clearly not

prescribed.

Given, however, that the issue on whether respondent has provided support to petitioner’s child calls for an

examination of the probative value of the evidence presented, and the truth and falsehood of facts being admitted,

we hereby remand the determination of this issue to the RTC-Cebu which has jurisdiction over the case.

WHEREFORE, the petition is GRANTED. The Orders dated February 19, 2010 and September 1, 2010,

respectively, of the Regional Trial Court of the City of Cebu are hereby REVERSED and SET ASIDE. The case is

REMANDED to the same court to conduct further proceedings based on the merits of the case.

SO ORDERED.

DIOSDADO M. PERALTA

Associate Justice

WE CONCUR:




PRESBITERO J. VELASCO, JR.

Associate Justice Chairperson

MARTIN S. VILLARAMA, JR. Associate Justice

JOSE CATRAL MENDOZA* Associate Justice

BIENVENIDO L. REYES Associate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned

to the writer of the opinion of the Court's Division.

PRESBITERO J. VELASCO, JR.

Associate Justice

Chairperson, Third Division

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer

of the opinion of the Court's Division.


Footnotes

* Designated Acting Member in lieu of Associate Justice Francis H. Jardeleza, per Special Order No. 1896

dated November 28, 2014

1 Penned by Judge Bienvenido R. Saniel, Jr.; Annexes "A" and "B" to Petition, respectively, rollo, pp. 22-26.

2 Rollo, p. 6.

3 Id.

4 Id. at 7.

5 Annex "F" to Petition, rollo, p. 31.

6 Id. at 32.

7 Annex "A" to Petition, rollo, pp. 23-24.

8 Id. at 24.

http://www.lawphil.net/judjuris/juri2014/dec2014/gr_193707_2014.html#rnt1








9 Id.at 32.

10 Id.

11 Supra note 7, at 23-24.


13 Rollo, p. 7.

14 Id.

15 Id. at 22.

16 Id.

17 Id. at 24.

18 Id. at 8.

19 Id.

20 Id.

21 Supra note 7.

22 Id.at 24.

23 Art. 195. Subject to the provisions of the succeeding articles, the following are obliged to support each

other to the whole extent set forth in the preceding article:

(1) The spouses;

(2) Legitimate ascendants and descendants;

(3) Parents and their legitimate children and the legitimate and illegitimate children of the latter;

(4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter;

and

(5) Legitimate brothers and sisters, whether of full or half-blood.

24 Annex "R" to Petition, rollo, p. 102.

25 Annex "B" to Petition, id. at 25.

26 Id.

27 Rollo, p. 10.

28 G.R. No. 194880, June 20, 2012, 674 SCRA 320.





















29 Id.at 332-333.

30 Supra note 23.

31 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 assuch, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 3637 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 have capacity to remarry under Philippine law. (As amended by Executive

Order 227)

32 Comment on the Petition for Review on Certiorari, rollo, p. 123.

33 Id. at 122.

34 Supra note 23.

35 Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.


37 Id.

38 G.R. No. L-25441, October 26, 1968, 25 SCRA 616.

39 Id. at 625-626. (Emphasis supplied)

40 EDI-Staff builders International, Inc. v. NLRC, 563 Phil. 1, 22 (2007).

41 Annex "N" to Petition, rollo, p. 84.

42 399 Phil. 342 (2000).

43 Id. at 354. (Emphasis supplied)

44 Bank of America, NT and SA v. American Realty Corporation, 378 Phil. 1279, 1296 (1999).

45 G.R. No. 80116, June 30, 1989, 174 SCRA 653.

46 Rollo, p. 18.

47 Supra note 44.

48 Id.at 1296-1297. (Emphasis supplied)

49 543 Phil. 275 (2007).

50 Id.at 290.























51 Section 5(e) and (i) of R.A. No. 9262. (Emphasis supplied)

52 Rollo, p. 15.

53 In People v. De Leon, 608 Phil. 701, 722 (2009), it was held that:

A continued (continuous or continuing) crime is defined as a single crime, consisting of a series of

acts but all arising from one criminal resolution. Although there is a series of acts, there is only

one crime committed; hence, only one penalty shall be imposed.




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