ARTICLE 45

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 183811               May 30, 2011

ROSALIA N. ESPINO, Petitioner, vs.SPOUSES SHARON SAMPANI BULUT and CELEBI BULUT, Respondents.

D E C I S I O N

CARPIO, J.:

The Case

This is a petition for review1 of the 14 April 2008 Decision2 and 8 July 2008 Order3 of the Regional Trial Court of Trece Martires City, Branch 23 (trial court). In its 14 April 2008 Decision, the trial court set aside its 4 September 2006 Decision and dismissed petitioner Rosalia N. Espino’s (Espino) petition for issuance of new owner’s copies of Transfer Certificates of Title (TCT) Nos. T-72654, T-72655, T-72656, T-72657, T-72658, T-72659, T-72660, T-72661, T-72662, T-72663, and T-72664. In its 8 July 2008 Order, the trial court denied Espino’s motion for reconsideration.

The Facts

Spouses Rosalia and Alfredo C. Espino (spouses Espino) are the registered owners of eleven adjacent lots situated in Tanza, Cavite and covered by TCT Nos. T-72654 to T-72664.

Sometime in January 2006, Espino lost the owner’s duplicate copies of the eleven TCTs. On 23 March 2006, Espino reported the loss to the Register of Deeds of Trece Martires City. Espino also filed a petition for issuance of new owner’s copies of the eleven TCTs before the trial court docketed as LRC Case No. 6832-462.

On 4 September 2006, the trial court granted Espino’s petition. On 27 October 2006, new copies of the eleven TCTs were issued to Espino under Section 1094 of the Land Registration Act.

On 4 January 2007, respondent spouses Sharon Sampani Bulut and Celebi Bulut (respondents) filed with the trial court a petition for relief from judgment.5 Respondents claimed that they had actual possession of the owner’s copies of the eleven TCTs which had been declared lost and cancelled by the trial court. Respondents explained that on 12 April 2003, spouses Espino sold a parcel of land covered by TCT No. T-279982 to a certain Beauregard E. Lim (Lim).6 Thereafter, Lim allegedly subdivided the property into eleven lots but the title remained in the name of spouses Espino because Lim lacked the funds to transfer the titles in his name. On 21 March 2006, Lim sold the eleven lots to respondents7 and gave them the eleven owner’s copies of the TCTs.8 When respondents tried to register the properties in their name, they discovered the trial court’s 4 September 2006 Decision and this prompted them to file the petition for relief from judgment.

On 9 January 2007, the trial court issued an ex-parte temporary restraining order.9 Subsequently, on 30 January 2007, the trial court granted respondents’ prayer for the issuance of a writ of preliminary injunction. 10 On 23 March 2007, the trial court issued the writ of preliminary injunction which provides:

NOW THEREFORE, you are hereby RESTRAINED or PROHIBITED from accepting/registering any document executed by respondent Rosalia N. Espino and any person authorized by her that will in any way encumber or cause the transfer of the property covered by the following certificates of title, to wit:

1. Transfer Certificate of Title No. T-72654;

2. Transfer Certificate of Title No. T-72655;

3. Transfer Certificate of Title No. T-72656;

4. Transfer Certificate of Title No. T-72657;

5. Transfer Certificate of Title No. T-72658;

6. Transfer Certificate of Title No. T-72659;

7. Transfer Certificate of Title No. T-72660;

8. Transfer Certificate of Title No. T-72661;

9. Transfer Certificate of Title No. T-72662;

10. Transfer Certificate of Title No. T-72663; and

11. Transfer Certificate of Title No. T-72664.

Until and after the injunction is ordered revoked and/or will be made permanent.11

On 14 April 2008, the trial court granted respondents’ petition for relief from judgment and declared the writ of preliminary injunction permanent. The trial court’s 14 April 2008 Decision provides:

WHEREFORE, the Decision dated September 4, 2006 is set aside and the petition for the issuance of new owner’s copies of Transfer Certificates of Title Nos. T-72654, T-72655, T-72656, T-72657, T-72658, T-72659, T-72660, T-72661, T-72662, T-72663 and T-72664 is DISMISSED.

The owner’s copies of the above listed transfer certificates of title issued by the respondent Registry of Deeds for the City of Trece Martires by virtue of the Final Decision dated September 4, 2006 is declared null and void.

Respondent Rosalia Espino is likewise directed to pay petitioners Sps. Sharon and Celebi Bulut moral damages in the amount of Two Hundred Thousand (Php 200,000.00) Pesos; exemplary damages in the amount of One Hundred Thousand (Php 100,000.00) Pesos; and attorney’s fees in the amount of Sixty Thousand (Php 60,000.00) Pesos.

SO ORDERED.12

The Ruling of the Trial Court

The trial court declared that Espino did not have possession of the eleven owner’s copies of the TCTs because respondents had been in possession of the eleven titles from the time respondents bought the properties from Lim in 2006. The trial court said that "when the original owner’s copy of the title is in fact not lost but is in the possession of a new owner, being the alleged buyer," the trial court did not acquire jurisdiction over Espino’s petition for issuance of new owner’s copies of the eleven titles. The trial court also awarded respondents moral and exemplary damages and attorney’s fees after it declared that Espino had the intent to defraud respondents when she executed the affidavit of loss and filed the petition.

The Issues

Espino raises the following issues:

1. Whether the trial court erred in recognizing and defending the alleged ownership rights of respondents as possessors of the eleven TCTs as against Espino, the registered owner of the properties; and

2. Whether the trial court erred in awarding damages to respondents.

The Ruling of the Court

The petition is partly meritorious.

According to Espino, the trial court decided on the issue of ownership of the properties when it permanently enjoined the Register of Deeds from accepting or registering any kind of conveyance that may be executed by Espino to any person except as to respondents. Espino adds that the trial court recognized the status of respondents as the "buyer" and "new owners" of the properties. Espino also denies that she deceived the trial court and defrauded respondents as there was no privity of contract between Espino and respondents. Espino maintains that she had no knowledge of the unregistered sales of the properties to Lim and the respondents. Espino adds that there was no fraud, bad faith or malice when she applied for the new owner’s copies of the eleven TCTs.

Contrary to Espino’s allegation, the trial court’s 4 September 2006 Decision and the 23 March 2007 Writ of Preliminary Injunction did not declare that respondents are the "new owners" of the properties. While the trial court did restrain the Register of Deeds from accepting or registering any document executed by Espino and any person authorized by her that will in any way encumber or cause the transfer of the properties, the trial court did not adjudge respondents as the owners of the properties.

Moreover, the trial court does not have jurisdiction to declare respondents as the "new owners" of the properties because this is not an issue in a petition for relief from judgment. In Strait Times, Inc. v. Court of Appeals,13 we stated:

It is judicially settled that a trial court does not acquire jurisdiction over a petition for the issuance of a new owner’s duplicate certificate of title, if the original is in fact not lost but is in the possession of an alleged buyer. Corollarily, such reconstituted certificate is itself void once the existence of the original is unquestionably demonstrated.Nonetheless, the nullity of the reconstituted certificate does not by itself settle the issue of ownership or title over the property; much less does it vest such title upon the holder of the original certificate. The issue of ownership must be litigated in appropriate proceedings.  It cannot be determined in an action for the issuance of a new owner’s duplicate certificate of title or in proceedings to annul such newly issued duplicate.14 (Emphasis supplied)

In this case, respondents’ possession of the eleven TCTs is not necessarily equivalent to ownership of the lands covered by the TCTs. The certificate of title, by itself, does not vest ownership; it is merely an evidence of title over a particular property.15 Again, the issue of ownership of the eleven properties must be litigated in the appropriate proceedings.

We, however, delete the award of moral and exemplary damages and attorney’s fees for lack of factual and legal basis. There is nothing in the records that supports an award of moral damages. The trial court only said:

The intention of respondent Rosalia Espino was to defraud the buyer of the land as in fact by her act of executing such affidavit of loss (Exhibit "E") she almost deceived this Court.16

In order that moral damages may be awarded, there must be pleading and proof of moral suffering, mental anguish, fright and the like.17 While respondents alleged sleepless nights and mental anguish in their petition for relief, they failed to prove them during the trial. Mere allegations do not suffice. They must be substantiated. Furthermore, the trial court made no reference to any testimony of the respondents on their alleged physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury as would entitle them to moral damages. lawphi1

Likewise, since respondents failed to satisfactorily establish their claim for moral damages, respondents are also not entitled to exemplary damages. Article 2234 of the Civil Code provides:

ART. 2234. While the amount of the exemplary damages need not be proved, the plaintiff must show that he is entitled to moral, temperate or compensatory damages before the court may consider the question of whether or not exemplary damages should be awarded. x x x x

As to the award of attorney’s fees, Article 2208 of the Civil Code provides:

ART. 2208. In the absence of stipulation, attorney’s fees and expenses of litigation, other than judicial costs, cannot be recovered, except:

1. When exemplary damages are awarded;

2. When the defendant’s act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest;

3. In criminal cases of malicious prosecution against the plaintiff;

4. In case of a clearly unfounded civil action or proceeding against the plaintiff;

5. Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff’s plainly valid, just and demandable claim;

6. In actions for legal support;

7. In actions for the recovery of wages of household helpers, laborers and skilled workers;

8. In actions for indemnity under workmen’s compensation and employer’s liability laws;

9. In a separate civil action to recover civil liability arising from a crime;

10. When at least double judicial costs are awarded;

11. In any other case where the court deems it just and equitable that attorney’s fees and expenses of litigation should be recovered.

In all cases, the attorney’s fees and expenses of litigation must be reasonable.

An award of attorney’s fees is an exception and there must be some compelling legal reason to bring the case within the exception and justify the award.18 In this case, none of the exceptions applies. Moreover, we already deleted the trial court’s award of exemplary damages which might have served as its basis for awarding attorney’s fees.

WHEREFORE, we AFFIRM with MODIFICATION the 14 April 2008 Decision and 8 July 2008 Order of the Regional Trial Court of Trece Martires City, Branch 23. We DELETE the award of moral and exemplary damages and attorney’s fees.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 174451               October 13, 2009

VERONICA CABACUNGAN ALCAZAR, Petitioner, vs.REY C. ALCAZAR, Respondent.

D E C I S I O N

CHICO-NAZARIO, J.:

This Petition for Review on Certiorari seeks to reverse the Decision1 dated 24 May 2006 of the Court of Appeals in CA-G.R. CV No. 84471, affirming the Decision dated 9 June 2004 of the Regional Trial Court (RTC) of Malolos City, Branch 85, in Civil Case No. 664-M-2002, which dismissed petitioner Veronica Cabacungan Alcazar’s Complaint for the annulment of her marriage to respondent Rey C. Alcazar.

The Complaint,2 docketed as Civil Case No. 664-M-2002, was filed by petitioner before the RTC on 22 August 2002. Petitioner alleged in her Complaint that she was married to respondent on 11 October 2000 by Rev. Augusto G. Pabustan (Pabustan), at the latter’s residence. After their wedding, petitioner and respondent lived for five days in San Jose, Occidental Mindoro, the hometown of respondent’s parents. Thereafter, the newlyweds went back to Manila, but respondent did not live with petitioner at the latter’s abode at 2601-C Jose Abad Santos Avenue, Tondo, Manila. On 23 October 2000, respondent left for Riyadh, Kingdom of Saudi Arabia, where he worked as an upholsterer in a furniture shop. While working in Riyadh, respondent did not communicate with petitioner by phone or by letter. Petitioner tried to call respondent for five times but respondent never answered. About a year and a half after respondent left for Riyadh, a co-teacher informed petitioner that respondent was about to come home to the Philippines. Petitioner was surprised why she was not advised by respondent of his arrival.

Petitioner further averred in her Complaint that when respondent arrived in the Philippines, the latter did not go home to petitioner at 2601-C Jose Abad Santos Avenue, Tondo, Manila. Instead, respondent proceeded to his parents’ house in San Jose, Occidental Mindoro. Upon learning that respondent was in San Jose, Occidental Mindoro, petitioner went to see her brother-in-law in Velasquez St., Tondo, Manila, who claimed that he was not aware of respondent’s whereabouts. Petitioner traveled to San Jose, Occidental Mindoro, where she was informed that respondent had been living with his parents since his arrival in March 2002.

Petitioner asserted that from the time respondent arrived in the Philippines, he never contacted her. Thus, petitioner concluded that respondent was physically incapable of consummating his marriage with her, providing sufficient cause for annulment of their marriage pursuant to paragraph 5, Article 45 of the Family Code of the Philippines (Family Code). There was also no more possibility of reconciliation between petitioner and respondent.

Per the Sheriff’s Return3 dated 3 October 2002, a summons, together with a copy of petitioner’s Complaint, was served upon respondent on 30 September 2002.4

On 18 November 2002, petitioner, through counsel, filed a Motion5 to direct the public prosecutor to conduct an investigation of the case pursuant to Article 48 of the Family Code.

As respondent did not file an Answer, the RTC issued on 27 November 2002 an Order6 directing the public prosecutor to conduct an investigation to ensure that no collusion existed between the parties; to submit a report thereon; and to appear in all stages of the proceedings to see to it that evidence was not fabricated or suppressed.

On 4 March 2003, Public Prosecutrix Veronica A.V. de Guzman (De Guzman) submitted her Report manifesting that she had conducted an investigation of the case of petitioner and respondent in January 2003, but respondent never participated therein. Public Prosecutrix De Guzman also noted that no collusion took place between the parties, and measures were taken to prevent suppression of evidence between them. She then recommended that a full-blown trial be conducted to determine whether petitioner’s Complaint was meritorious or not.

Pre-trial was held and terminated on 20 May 2003.

On 21 May 2003, the RTC received the Notice of Appearance of the Solicitor General.

Trial on the merits ensued thereafter.

During trial, petitioner presented herself, her mother Lolita Cabacungan (Cabacungan), and clinical psychologist Nedy L. Tayag (Tayag) as witnesses.

Petitioner first took the witness stand and elaborated on the allegations in her Complaint. Cabacungan corroborated petitioner’s testimony.

Petitioner’s third witness, Tayag, presented the following psychological evaluation of petitioner and respondent:

After meticulous scrutiny and careful analysis of the collected data, petitioner is found to be free from any underlying personality aberration neither (sic) of any serious psychopathological traits, which may possibly impede her normal functioning (sic) of marriage. On the other hand, the undersigned arrived to (sic) a firm opinion that the sudden breakdown of marital life between petitioner and respondent was clearly due to the diagnosed personality disorder that the respondent is harboring, making him psychologically incapacitated to properly assume and comply [with] essential roles (sic) of obligations as a married man.

The pattern of behaviors displayed by the respondent satisfies the diagnostic criteria of a disorder clinically classified as Narcissistic Personality Disorder, a condition deemed to be grave, severe, long lasting in proportion and incurable by any treatment.

People suffering from Narcissistic Personality Disorder are known to have a pervasive pattern of grandiosity (in fantasy or behavior), need for admiration, and lack of empathy, beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following:

1. has a grandiose of self-importance (e.g. exaggerates achievements and talents, expect to be recognized as superior without commensurate achievements)

2. is preoccupied with fantasies of unlimited success, power, brilliance, beauty or ideal love

3. believes that he or she is "special" and unique and can only be understood by, or should associate with, other special or high status people (institutions)

4. requires excessive admiration

5. has sense of entitlement, i.e., unreasonable expectations of especially favorable treatment or automatic compliance with his or her expectations

6. is interpersonally exploitative, i.e., takes advantage of others to achieve his or her own ends

7. lacks empathy: is unwilling to recognize or identify with the feelings and needs of others

8. is often envious of others or believes that others are envious of him or her

9. shows arrogant, haughty behavior or attitudes.

The root cause of respondent’s personality disorder can be attributed to his early childhood years with predisposing psychosocial factors that influence[d] his development. It was recounted that respondent is the first child of his mother’s second family. Obviously, unhealthy familial constellation composed his immediate environment in his growing up years. Respondent had undergone a severe longing for attention from his father who had been unfaithful to them and had died early in life, that he was left alone to fend for the family needs. More so that they were coping against poverty, his caregivers failed to validate his needs, wishes or responses and overlooked the love and attention he yearned which led to develop a pathological need for self-object to help him maintain a cohesive sense of self-such so great that everything other people offer is "consumed." Hence, he is unable to develop relationship with other (sic) beyond this need. There is no capacity for empathy sharing, or loving others.

The psychological incapacity of the respondent is characterized by juridical antecedence as it already existed long before he entered into marriage. Since it already started early in life, it is deeply engrained within his system and becomes a[n] integral part of his personality structure, thereby rendering such to be permanent and incurable.7

Tayag concluded in the end that:

As such, their marriage is already beyond repair, considering the fact that it has long been (sic) ceased to exist and have their different life priorities. Reconciliation between them is regarded to be (sic). The essential obligations of love, trust, respect, fidelity, authentic cohabitation as husband and wife, mutual help and support, and commitment, did not and will no lon[g]er exist between them. With due consideration of the above-mentioned findings, the undersigned recommends, the declaration of nullity of marriage between petitioner and respondent.8

On 18 February 2004, petitioner filed her Formal Offer of Evidence. Public Prosecutrix Myrna S. Lagrosa (Lagrosa), who replaced Public Prosecutrix De Guzman, interposed no objection to the admission of petitioner’s evidence and manifested that she would no longer present evidence for the State.

On 9 June 2004, the RTC rendered its Decision denying petitioner’s Complaint for annulment of her marriage to respondent, holding in substance that:

In the case at bar, the Court finds that the acts of the respondent in not communicating with petitioner and not living with the latter the moment he returned home from Saudi Arabia despite their marriage do (sic) not lead to a conclusion of psychological incapacity on his part. There is absolutely no showing that his "defects" were already present at the inception of their marriage or that these are incurable.

That being the case, the Court resolves to deny the instant petition.

WHEREFORE, premises considered, the Petition for Annulment of Marriage is hereby DENIED.9

Petitioner filed a Motion for Reconsideration10 but it was denied by the RTC in an Order11 dated 19 August 2004.

Aggrieved, petitioner filed an appeal with the Court of Appeals, docketed as CA-G.R. CV No. 84471. In a Decision12 dated 24 May 2006, the Court of Appeals affirmed the RTC Decision dated 9 June 2004. The Court of Appeals ruled that the RTC did not err in finding that petitioner failed to prove respondent’s psychological incapacity. Other than petitioner’s bare allegations, no other evidence was presented to prove respondent’s personality disorder that made him completely unable to discharge the essential obligations of the marital state. Citing Republic v. Court of Appeals,13 the appellate court ruled that the evidence should be able to establish that at least one of the spouses was mentally or physically ill to such an extent that said person could not have known the marital obligations to be assumed; or knowing the marital obligations, could not have validly assumed the same. At most, respondent’s abandonment of petitioner could be a ground for legal separation under Article 5 of the Family Code. 1avvphi1

Petitioner’s Motion for Reconsideration was denied by the Court of Appeals in a Resolution14 dated 28 August 2008.

Hence, this Petition raising the sole issue of:

WHETHER OR NOT, AS DEFINED BY THE LAW AND JURISPRUDENCE, RESPONDENT IS PSYCHOLOGICALLY INCAPACITATED TO PERFORM THE ESSENTIAL MARITAL OBLIGATONS.15

At the outset, it must be noted that the Complaint originally filed by petitioner before the RTC was for annulment of marriage based on Article 45, paragraph 5 of the Family Code, which reads:

ART. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:

x x x x

(5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; x x x.

Article 45(5) of the Family Code refers to lack of power to copulate.16 Incapacity to consummate denotes the permanent inability on the part of the spouses to perform the complete act of sexual intercourse.17 Non-consummation of a marriage may be on the part of the husband or of the wife and may be caused by a physical or structural defect in the anatomy of one of the parties or it may be due to chronic illness and inhibitions or fears arising in whole or in part from psychophysical conditions. It may be caused by psychogenic causes, where such mental block or disturbance has the result of making the spouse physically incapable of performing the marriage act.18

No evidence was presented in the case at bar to establish that respondent was in any way physically incapable to consummate his marriage with petitioner. Petitioner even admitted during her cross-examination that she and respondent had sexual intercourse after their wedding and before respondent left for abroad. There obviously being no physical incapacity on respondent’s part, then, there is no ground for annulling petitioner’s marriage to respondent. Petitioner’s Complaint was, therefore, rightfully dismissed.

One curious thing, though, caught this Court’s attention. As can be gleaned from the evidence presented by petitioner and the observations of the RTC and the Court of Appeals, it appears that petitioner was actually seeking the declaration of nullity of her marriage to respondent based on the latter’s psychological incapacity to comply with his marital obligations of marriage under Article 36 of the Family Code.

Petitioner attributes the filing of the erroneous Complaint before the RTC to her former counsel’s mistake or gross ignorance.19 But even said reason cannot save petitioner’s Complaint from dismissal. It is settled in this jurisdiction that the client is bound by the acts, even mistakes, of the counsel in the realm of procedural technique.20Although this rule is not a hard and fast one and admits of exceptions, such as where the mistake of counsel is so gross, palpable and inexcusable as to result in the violation of his client’s substantive rights,21 petitioner failed to convince us that such exceptional circumstances exist herein.

Assuming for the sake of argument that we can treat the Complaint as one for declaration of nullity based on Article 36 of the Family Code, we will still dismiss the Complaint for lack of merit, consistent with the evidence presented by petitioner during the trial.

Article 36 of the Family Code provides:

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

In Santos v. Court of Appeals,22 the Court declared that "psychological incapacity" under Article 36 of the Family Code is not meant to comprehend all possible cases of psychoses. It should refer, rather, 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. Psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability.23

The Court laid down the guidelines in resolving petitions for declaration of nullity of marriage, based on Article 36 of the Family Code, in Republic v. Court of Appeals,24 to wit:

(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 ofejusdem 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. x x x.

Being accordingly guided by the aforequoted pronouncements in Republic v. Court of Appeals, we scrutinized the totality of evidence presented by petitioner and found that the same was not enough to sustain a finding that respondent was psychologically incapacitated.

Petitioner’s evidence, particularly her and her mother’s testimonies, merely established that respondent left petitioner soon after their wedding to work in Saudi Arabia; that when respondent returned to the Philippines a year and a half later, he directly went to live with his parents in San Jose, Occidental Mindoro, and not with petitioner in Tondo, Manila; and that respondent also did not contact petitioner at all since leaving for abroad. These testimonies though do not give us much insight into respondent’s psychological state.

Tayag’s psychological report leaves much to be desired and hardly helps petitioner’s cause. It must be noted that Tayag was not able to personally examine respondent. Respondent did not appear for examination despite Tayag’s invitation.25 Tayag, in evaluating respondent’s psychological state, had to rely on information provided by petitioner. Hence, we expect Tayag to have been more prudent and thorough in her evaluation of respondent’s psychological condition, since her source of information, namely, petitioner, was hardly impartial.

Tayag concluded in her report that respondent was suffering from Narcissistic Personality Disorder, traceable to the latter’s experiences during his childhood. Yet, the report is totally bereft of the basis for the said conclusion. Tayag did not particularly describe the "pattern of behavior" that showed that respondent indeed had a Narcissistic Personality Disorder. Tayag likewise failed to explain how such a personality disorder made respondent psychologically incapacitated to perform his obligations as a husband. We emphasize that the burden falls upon petitioner, not just to prove that respondent suffers from a psychological disorder, but also that such psychological disorder renders him "truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage."26 Psychological incapacity must be more than just a "difficulty," a "refusal," or a "neglect" in the performance of some marital obligations.

In this instance, we have been allowed, through the evidence adduced, to peek into petitioner’s marital life and, as a result, we perceive a simple case of a married couple being apart too long, becoming strangers to each other, with the husband falling out of love and distancing or detaching himself as much as possible from his wife.

To be tired and give up on one’s situation and on one’s spouse are not necessarily signs of psychological illness; neither can falling out of love be so labeled. When these happen, the remedy for some is to cut the marital knot to allow the parties to go their separate ways. This simple remedy, however, is not available to us under our laws. Ours is a limited remedy that addresses only a very specific situation – a relationship where no marriage could have validly been concluded because the parties; or where one of them, by reason of a grave and incurable psychological illness existing when the marriage was celebrated, did not appreciate the obligations of marital life and, thus, could not have validly entered into a marriage.27

1avvphi1

An unsatisfactory marriage is not a null and void marriage. As we stated in Marcos v. Marcos28]:

Article 36 of the Family Code, we stress, is not to be confused with a divorce law that cuts the marital bond at the time the causes therefor manifest themselves. It refers to a serious psychological illness afflicting a party even before the celebration of the marriage. It is a malady so grave and so permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume. x x x.

Resultantly, we have held in the past that mere "irreconcilable differences" and "conflicting personalities" in no wise constitute psychological incapacity.29

As a last-ditch effort to have her marriage to respondent declared null, petitioner pleads abandonment by and sexual infidelity of respondent. In a Manifestation and Motion30 dated 21 August 2007 filed before us, petitioner claims that she was informed by one Jacinto Fordonez, who is residing in the same barangay as respondent in Occidental Mindoro, that respondent is living-in with another woman named "Sally."

Sexual infidelity, per se, however, does not constitute psychological incapacity within the contemplation of the Family Code. Again, petitioner must be able to establish that respondent’s unfaithfulness is a manifestation of a disordered personality, which makes him completely unable to discharge the essential obligations of the marital state.31

It remains settled that the State has a high stake in the preservation of marriage rooted in its recognition of the sanctity of married life and its mission to protect and strengthen the family as a basic autonomous social institution. Hence, any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity.32 Presumption is always in favor of the validity of marriage. Semper praesumitur pro matrimonio.33 In the case at bar, petitioner failed to persuade us that respondent’s failure to communicate with petitioner since leaving for Saudi Arabia to work, and to live with petitioner after returning to the country, are grave psychological maladies that are keeping him from knowing and/or complying with the essential obligations of marriage.

We are not downplaying petitioner’s frustration and misery in finding herself shackled, so to speak, to a marriage that is no longer working. Regrettably, there are situations like this one, where neither law nor society can provide the specific answers to every individual problem.34

WHEREFORE, the Petition is DENIED. The 24 May 2006 Decision and 28 August 2008 Resolution of the Court of Appeals in CA-G.R. CV No. 84471, which affirmed the 9 June 2004 Decision of the Regional Trial Court of Malolos City, Branch 85, dismissing petitioner Veronica Cabacungan Alcazar’s Complaint in Civil Case No. 664-M-2002, are AFFIRMED. No costs.

SO ORDERED.

ARTICLE 46

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-15853             July 27, 1960

FERNANDO AQUINO, petitioner, vs.CONCHITA DELIZO, respondent.

GUTIERREZ DAVID, J.:

This is a petition for certiorari to review a decision of the Court of Appeals affirming that of the Court of First Instance of Rizal which dismissed petitioner's complaint for annulment of his marriage with respondent Conchita Delizo.

The dismissed complaint, which was filed on September 6, 1955, was based on the ground of fraud, it being alleged, among other things, that defendant Conchita Delizo, herein respondent, at the date of her marriage to plaintiff, herein petitioner Fernando Aquino, on December 27, 1954, concealed from the latter that fact that she was pregnant by another man, and sometime in April, 1955, or about four months after their marriage, gave birth to a child. In her answer, defendant claimed that the child was conceived out of lawful wedlock between her and the plaintiff.

At the trial, the attorney's for both parties appeared and the court a quo ordered Assistant Provincial Fiscal Jose Goco to represent the State in the proceedings to prevent collusion. Only the plaintiff however, testified and the only documentary evidence presented was the marriage contract between the parties. Defendant neither appeared nor presented any evidence despite the reservation made by her counsel that he would present evidence on a later date.

On June 16, 1956, the trial court — noting that no birth certificate was presented to show that the child was born within 180 days after the marriage between the parties, and holding that concealment of pregnancy as alleged by the plaintiff does not constitute such fraud sa would annul a marriage — dismissed the complaint. Through a verified "petition to reopen for reception of additional evidence", plaintiff tried to present the certificates of birth and delivery of the child born of the defendant on April 26, 1955, which documents, according to him, he had failed to secure earlier and produce before the trial court thru excusable negligence. The petition, however, was denied.

On appeal to the Court of Appeals, that court held that there has been excusable neglect in plaintiff's inability to present the proof of the child's birth, through her birth certificate, and for that reason the court a quo erred in denying the motion for reception of additional evidence. On the theory, however, that it was not impossible for plaintiff and defendant to have had sexual intercourse during their engagement so that the child could be their own, and finding unbelievable plaintiff's claim that he did not notice or even suspect that defendant was pregnant when he married her, the appellate court, nevertheless, affirmed the dismissal of the complaint.

On March 17, 1959, plaintiff filed a motion praying that the decision be reconsidered, or, if such reconsideration be denied, that the case be remanded to the lower court for new trial. In support of the motion, plaintiff attached as annexes thereof the following documents:

1. Affidavit of Cesar Aquino (Annex A) (defendant's brother-in-law and plaintiff's brother, with whom defendant was living at the time plaintiff met, courted and married her, and with whom defendant has begotten two more children, aside from her first born, in common-law relationship) admitting that he is the father of defendant's first born, Catherine Bess Aquino, and that he and defendant hid her pregnancy from plaintiff at the time of plaintiff's marriage to defendant;

2. Affidavit of defendant, Conchita Delizo (Annex "B") admitting her pregnancy by Cesar Aquino, her brother-in-law and plaintiff's own brother, at the time of her marriage to plaintiff and her having hidden this fact from plaintiff before and up to the time of their marriage;

3. Affidavit of Albert Powell (Annex "C") stating that he knew Cesar Aquino and defendant lived together as husband and wife before December 27, 1954, the date of plaintiff's marriage to defendant;

4. Birth Certificate of defendant's first born, Catherine Bess Aquino showing her date of birth to be April 26, 1955;

5. Birth Certificate (Annex "D") of Carolle Ann Aquino, the second child of defendant with Cesar Aquino, her brother-in-law;

6. Birth Certificate (Annex "E") of Chris Charibel Aquino, the third child of Cesar Aquino and defendant; and

7. Pictures of defendant showing her natural plumpness as early as 1952 to as late as November, 1954, the November, 1954 photo itself does not show defendant's pregnancy which must have been almost four months old at the time the picture was taken.

Acting upon the motion, the Court of Appeals ordered the defendant Conchita Delizo and Assistant Provincial Fiscal of Rizal, who was representing the Government, to answer the motion for reconsideration, and deferred action on the prayer for new trial until after the case is disposed of. As both the defendant and the fiscal failed to file an answer, and stating that it "does not believe the veracity of the contents of the motion and its annexes", the Court of Appeals, on August 6, 1959, denied the motion. From that order, the plaintiff brought the case to this Court thru the present petition for certiorari.

After going over the record of the case, we find that the dismissal of plaintiff's complaint cannot be sustained.

Under the new Civil Code, concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband constitutes fraud and is ground for annulment of marriage. (Art. 85, par. (4) in relation to Art. 86, par. (3). In the case of Buccat vs. Buccat (72 Phil., 19) cited in the decision sought to be reviewed, which was also an action for the annulment of marriage on the ground of fraud, plaintiff's claim that he did not even suspect the pregnancy of the defendant was held to be unbelievable, it having been proven that the latter was already in an advanced stage of pregnancy (7th month) at the time of their marriage. That pronouncement, however, cannot apply to the case at bar. Here the defendant wife was alleged to be only more than four months pregnant at the time of her marriage to plaintiff. At that stage, we are not prepared to say that her pregnancy was readily apparent, especially since she was "naturally plump" or fat as alleged by plaintiff. According to medical authorities, even on the 5th month of pregnancy, the enlargement of a woman's abdomen is still below the umbilicus, that is to say, the enlargement is limited to the lower part of the abdomen so that it is hardly noticeable and may, if noticed, be attributed only to fat formation on the lower part of the abdomen. It is only on the 6th month of pregnancy that the enlargement of the woman's abdomen reaches a height above the umbilicus, making the roundness of the abdomen more general and apparent. (See Lull, Clinical Obstetrics, p. 122) If, as claimed by plaintiff, defendant is "naturally plump", he could hardly be expected to know, merely by looking, whether or not she was pregnant at the time of their marriage more so because she must have attempted to conceal the true state of affairs. Even physicians and surgeons, with the aid of the woman herself who shows and gives her subjective and objective symptoms, can only claim positive diagnosis of pregnancy in 33% at five months. and 50% at six months. (XI Cyclopedia of Medicine, Surgery, etc. Pregnancy, p. 10).

The appellate court also said that it was not impossible for plaintiff and defendant to have had sexual intercourse before they got married and therefore the child could be their own. This statement, however, is purely conjectural and finds no support or justification in the record.

Upon the other hand, the evidence sought to be introduced at the new trial, taken together with what has already been adduced would, in our opinion, be sufficient to sustain the fraud alleged by plaintiff. The Court of Appeals should, therefore, not have denied the motion praying for new trial simply because defendant failed to file her answer thereto. Such failure of the defendant cannot be taken as evidence of collusion, especially since a provincial fiscal has been ordered of represent the Government precisely to prevent such collusion. As to the veracity of the contents of the motion and its annexes, the same can best be determined only after hearing evidence. In the circumstance, we think that justice would be better served if a new trial were ordered.

Wherefore, the decision complained of is set aside and the case remanded to the court a quo for new trial. Without costs.

ARTICLE 56

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

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

BENJAMIN BUGAYONG, plaintiff-appellant, vs.LEONILA GINEZ, defendant-appellee.

Florencio Dumapias for appellant. Numeriano Tanopo, Jr. for appellee.

FELIX, J.:

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

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

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

In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife whom he met in the house of one Mrs. Malalang, defendant's godmother. She came along with him and both proceeded to the house of Pedro

Bugayong, a cousin of the plaintiff-husband, where they stayed and lived for 2 nights and 1 day as husband and wife. Then they repaired to the plaintiff's house and again passed the night therein as husband and wife. On the second day, Benjamin Bugayong tried to verify from his wife the truth of the information he received that she had committed adultery but Leonila, instead of answering his query, merely packed up and left, which he took as a confirmation of the acts of infidelity imputed on her. After that and despite such belief, plaintiff exerted efforts to locate her and failing to find her, he went to Bacarra, Ilocos Norte, "to soothe his wounded feelings".

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

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

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

(a) In so prematurely dismissing the case;

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

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

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

The Civil Code provides:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A petition for legal separation may be filed:

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

and in its Art. 100 it says: lawphil.net

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

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

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

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

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

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

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

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

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

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

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

A divorce suit will not be granted for adultery where the parties continue to live together after it was known (Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac. 974) or there is sexual intercourse after knowledge of

adultery (Rogers vs. Rogers, 67 N. J. Eq. 534) or sleeping together for a single night (Toulson vs. Toulson, 50 Atl. 401, citing Phinizy vs. Phinizy, 114 S. E. 185, 154 Ga. 199; Collins vs. Collins, 193 So. 702), and many others. The resumption of marital cohabitation as a basis of condonation will generally be inferred, nothing appearing to the contrary, from the fact of the living together as husband and wife, especially as against the husband (Marsh vs. Marsh, 14 N. J. Eq. 315).

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

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

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

ARTICLE 63

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

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

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

Jose W. Diokno for petitioner-appellant.

D. G. Eufemio for respondent-appellee.

REYES J.B.L., J.:p

Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an order, dated 29 July 1969, of the Juvenile and Domestic Relations Court of Manila, in its Civil Case No. 20387, dismissing said case for legal separation on the ground that the death of the therein plaintiff, Carmen O. Lapuz Sy, which occurred during the pendency of the case, abated the cause of action as well as the action itself. The dismissal order was issued over the objection of Macario Lapuz, the heir of the deceased plaintiff (and petitioner herein) who sought to substitute the deceased and to have the case prosecuted to final judgment.

On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S. Eufemio, alleging, in the main, that they were married civilly on 21 September 1934 and canonically on 30 September 1934; that they had lived together as husband and wife continuously until 1943 when her husband abandoned her; that they had no child; that they acquired properties during their marriage; and that she discovered her husband cohabiting with a Chinese woman named Go Hiok at 1319 Sisa Street, Manila, on or about March 1949. She prayed for the issuance of a decree of legal separation, which, among others, would order that the defendant Eufemio S. Eufemio should be deprived of his share of the conjugal partnership profits.

In his second amended answer to the petition, herein respondent Eufemio S. Eufemio alleged affirmative and special defenses, and, along with several other claims involving money and other properties, counter-claimed for the declaration of nullity ab initio of his marriage with Carmen O. Lapuz Sy, on the ground of his prior and subsisting marriage, celebrated according to Chinese law and customs, with one Go Hiok, alias Ngo Hiok.

Issues having been joined, trial proceeded and the parties adduced their respective evidence. But before the trial could be completed (the respondent was already scheduled to present surrebuttal evidence on 9 and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular accident on 31 May 1969. Counsel for petitioner duly notified the court of her death.

On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal separation"  1 on two (2) grounds, namely: that the petition for legal separation was filed beyond the one-year period provided for in Article 102 of the Civil Code; and that the death of Carmen abated the action for legal separation.

On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by her father, Macario Lapuz. Counsel for Eufemio opposed the motion.

On 29 July 1969, the court issued the order under review, dismissing the case.  2 In the body of the order, the court stated that the motion to dismiss and the motion for substitution had to be resolved on the question of whether or not the plaintiff's cause of action has survived, which the court resolved in the negative. Petitioner's moved to reconsider but the motion was denied on 15 September 1969.

After first securing an extension of time to file a petition for review of the order of dismissal issued by the juvenile and domestic relations court, the petitioner filed the present petition on 14 October 1969. The same was given due course and answer thereto was filed by respondent, who prayed for the affirmance of the said order.  3

Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims, he did not pursue them after the court below dismissed the case. He acquiesced in the dismissal of said counterclaims by praying for the affirmance of the order that dismissed not only the petition for legal separation but also his counterclaim to declare the Eufemio-Lapuz marriage to be null and void ab initio.

But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute — for the lower court did not act on the motion for substitution) stated the principal issue to be as follows:

When an action for legal separation is converted by the counterclaim into one for a declaration of nullity of a marriage, does the death of a party abate the proceedings?

The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit to one for declaration of nullity of a marriage, which is without basis, for even petitioner asserted that "the respondent has acquiesced to the dismissal of his counterclaim" (Petitioner's Brief, page 22). Not only this. The petition for legal separation and the counterclaim to declare the nullity of the self same marriage can stand independent and separate adjudication. They are not inseparable nor was the action for legal separation converted into one for a declaration of nullity by the counterclaim, for legal separation pre-supposes a valid marriage, while the petition for nullity has a voidable marriage as a pre-condition.

The first real issue in this case is: Does the death of the plaintiff before final decree, in an action for legal separation, abate the action? If it does, will abatement also apply if the action involves property rights? .

An action for legal separation which involves nothing more than the bed-and-board separation of the spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one else) to claim legal separation; and in its Article 108, by providing that the spouses can, by their reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already rendered. Being personal in character, it follows that the death of one party to the action causes the death of the action itself — actio personalis moritur cum persona.

... When one of the spouses is dead, there is no need for divorce, because the marriage is dissolved. The heirs cannot even continue the suit, if the death of the spouse takes place during the course of the suit

(Article 244, Section 3). The action is absolutely dead (Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. H. 1933, 332.") 4 .

Marriage is a personal relation or status, created under the sanction of law, and an action for divorce is a proceeding brought for the purpose of effecting a dissolution of that relation. The action is one of a personal nature. In the absence of a statute to the contrary, the death of one of the parties to such action abates the action, for the reason that death has settled the question of separation beyond all controversy and deprived the court of jurisdiction, both over the persons of the parties to the action and of the subject-matter of the action itself. For this reason the courts are almost unanimous in holding that the death of either party to a divorce proceeding, before final decree, abates the action. 1 Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72; Danforth v. Danforth, 111 Ill. 236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578; 134 Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817; Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659; McCurley v. McCurley, 60 Md. 185, 45 Am. Rep. 717; Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A. 141. 5

The same rule is true of causes of action and suits for separation and maintenance (Johnson vs. Bates, Ark. 101 SW 412; 1 Corpus Juris 208).

A review of the resulting changes in property relations between spouses shows that they are solely the effect of the decree of legal separation; hence, they can not survive the death of the plaintiff if it occurs prior to the decree. On the point, Article 106 of the Civil Code provides: .

Art. 106. The decree of legal separation shall have the following effects:

(1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed; .

(2) The conjugal partnership of gains or the absolute conjugal community of property shall be dissolved and liquidated, but the offending spouse shall have no right to any share of the profits earned by the partnership or community, without prejudice to the provisions of article 176;

(3) The custody of the minor children shall be awarded to the innocent spouse, unless otherwise directed by the court in the interest of said minors, for whom said court may appoint a guardian;

(4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent one shall be revoked by operation of law.

From this article it is apparent that the right to the dissolution of the conjugal partnership of gains (or of the absolute community of property), the loss of right by the offending spouse to any share of the profits earned by the partnership or community, or his disqualification to inherit by intestacy from the innocent spouse as well as the revocation of testamentary provisions in favor of the offending spouse made by the innocent one, are all rights and disabilities that, by the very terms of the Civil Code article, are vested exclusively in the persons of the spouses; and by their nature and intent, such claims and disabilities are difficult to conceive as assignable or transmissible. Hence, a claim to said rights is not a claim that "is not thereby extinguished" after a party dies, under Section 17, Rule 3, of the Rules of Court, to warrant continuation of the action through a substitute of the deceased party.

Sec. 17. Death of party. After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and to be substituted for the deceased, within a period of thirty (30) days, or within such time as may be granted...

The same result flows from a consideration of the enumeration of the actions that survive for or against administrators in Section 1, Rule 87, of the Revised Rules of Court:

SECTION 1. Actions which may and which may not be brought against executor or administrator. No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; but actions to recover real or personal property, or an interest

therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced against him.

Neither actions for legal separation or for annulment of marriage can be deemed fairly included in the enumeration..

A further reason why an action for legal separation is abated by the death of the plaintiff, even if property rights are involved, is that these rights are mere effects of decree of separation, their source being the decree itself; without the decree such rights do not come into existence, so that before the finality of a decree, these claims are merely rights in expectation. If death supervenes during the pendency of the action, no decree can be forthcoming, death producing a more radical and definitive separation; and the expected consequential rights and claims would necessarily remain unborn.

As to the petition of respondent-appellee Eufemio for a declaration of nullity ab initio of his marriage to Carmen Lapuz, it is apparent that such action became moot and academic upon the death of the latter, and there could be no further interest in continuing the same after her demise, that automatically dissolved the questioned union. Any property rights acquired by either party as a result of Article 144 of the Civil Code of the Philippines 6 could be resolved and determined in a proper action for partition by either the appellee or by the heirs of the appellant.

In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83, paragraph 2, of the Civil Code, because the second marriage had been contracted with the first wife having been an absentee for seven consecutive years, or when she had been generally believed dead, still the action for annulment became extinguished as soon as one of the three persons involved had died, as provided in Article 87, paragraph 2, of the Code, requiring that the action for annulment should be brought during the lifetime of any one of the parties involved. And furthermore, the liquidation of any conjugal partnership that might have resulted from such voidable marriage must be carried out "in the testate or intestate proceedings of the deceased spouse", as expressly provided in Section 2 of the Revised Rule 73, and not in the annulment proceeding.

ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and Domestic Relations is hereby affirmed. No special pronouncement as to costs.