De Ocampo vs Florenciano

De Ocampo vs. Florenciano

107 Phil 35

FACTS:

Jose de Ocampo and Serafina Florenciano were married in 1938. They begot several children who are not living with plaintiff. In March 1951, latter discovered on several occasions that his wife was betraying his trust by maintaining illicit relations with Jose Arcalas. Having found out, he sent the wife to Manila in June 1951 to study beauty culture where she stayed for one year. Again plaintiff discovered that the wife was going out with several other man other than Arcalas. In 1952, when the wife finished her studies, she left plaintiff and since then they had lived separately. In June 1955, plaintiff surprised his wife in the act of having illicit relations with Nelson Orzame. He signified his intention of filing a petition for legal separation to which defendant manifested conformity provided she is not charged with adultery in a criminal action. Accordingly, Ocampo filed a petition for legal separation in 1955.

ISSUE: Whether the confession made by Florenciano constitutes the confession of judgment disallowed by the Family Code.

HELD:

Florenciano’s admission to the investigating fiscal that she committed adultery, in the existence of evidence of adultery other than such confession, is not the confession of judgment disallowed by Article 48 of the Family Code. What is prohibited is a confession of judgment, a confession done in court or through a pleading. Where there is evidence of the adultery independent of the defendant’s statement agreeing to the legal separation, the decree of separation should be granted since it would not be based on the confession but upon the evidence presented by the plaintiff. What the law prohibits is a judgment based exclusively on defendant’s confession. The petition should be granted based on the second adultery, which has not yet prescribed.

Lapuz-Sy vs Eufemio

Lapuz-Sy vs. Eufemio

43 SCRA 177

FACTS:

Carmen Lapuz-Sy filed a petition for legal separation against Eufemio Eufemio on August 1953. They were married civilly on September 21, 1934 and canonically after nine days. They had lived together as husband and wife continuously without any children until 1943 when her husband abandoned her. They acquired properties during their marriage. Petitioner then discovered that her husband cohabited with a Chinese woman named Go Hiok on or about 1949. She prayed for the issuance of a decree of legal separation, which among others, would order that the defendant Eufemio should be deprived of his share of the conjugal partnership profits.

Eufemio counterclaimed for the declaration of nullity of his marriage with Lapuz-Sy on the ground of his prior and subsisting marriage with Go Hiok. Trial proceeded and the parties adduced their respective evidence. However, before the trial could be completed, respondent already scheduled to present surrebuttal evidence, petitioner died in a vehicular accident on May 1969. Her counsel duly notified the court of her death. Eufemio moved to dismiss the petition for legal separation on June 1969 on the grounds that the said petition was filed beyond the one-year period provided in Article 102 of the Civil Code and that the death of Carmen abated the action for legal separation. Petitioner’s counsel moved to substitute the deceased Carmen by her father, Macario Lapuz.

ISSUE: Whether the death of the plaintiff, before final decree in an action for legal separation, abate the action and will it also apply if the action involved property rights.

HELD:

An action for legal separation is abated by the death of the plaintiff, even if property rights are involved. 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.

The petition of Eufemio for declaration of nullity is moot and academic 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.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-34132 July 29, 1972

LUCY SOMOSA-RAMOS, petitioner, vs.THE HONORABLE CIPRIANO VAMENTA, JR., Presiding Judge of the Court of First Instance of Negros Oriental and CLEMEN G. RAMOS, respondents.

T. R. Reyes & Associates for petitioner.

Soleto J. Erames for respondents.

FERNANDO, J.:p

The question raised in this petition for certiorari is whether or not Article 103 of the Civil Code prohibiting the hearing of an action for legal separation before the lapse of six months from the filing of the petition, would likewise preclude the court from acting on a motion for preliminary mandatory injunction applied for as an ancillary remedy to such a suit. Respondent Cipriano Vamenta, Jr., of the Court of First Instance of Negros Oriental, answered the question in the affirmative, in view of the absolute tenor of such Civil Code provision, which reads thus: "An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition." He therefore ordered the suspension, upon the plea of the other respondent the husband Clemente G. Ramos, of the hearing on a motion for a writ of preliminary mandatory injunction filed by petitioner at the same time the suit for legal separation was instituted. Petitioner, Lucy Somosa-Ramos, the wife who brought the action for legal separation would dispute such a ruling. Hence, this certiorari proceeding. As will be shown later there is justification for such a move on the part of petitioner. The respondent Judge ought to have acted differently. The plea for a writ of certiorari must be granted.

The pleadings show that on June 18, 1971, petitioner filed Civil Case No. 5274 in the sala of respondent Judge against respondent Clemente Ramos for legal separation, on concubinage on the respondent's part and an attempt by him against her life being alleged. She likewise sought the issuance of a writ of preliminary mandatory injunction for the return to her of what she claimed to be her paraphernal and exclusive property, then under the administration and management of respondent Clemente Ramos. There was an opposition to the hearing of such a motion, dated July 3, 1971, based on Article 103 of the Civil Code. It was further manifested by him in a pleading dated July 16, 1971, that if the motion asking for preliminary mandatory injunction were heard, the prospect of the reconciliation of the spouses would become even more dim. Respondent Judge ordered the parties to submit their respective memoranda on the

matter. Then on September 3, 1971, petitioner received an order dated August 4, 1971 of respondent Judge granting the motion of respondent Ramos to suspend the hearing of the petition for a writ of mandatory preliminary injunction. That is the order complained of in this petition for certiorari. Respondents were required to answer according to our resolution of October 5, 1971. The answer was filed December 2 of that year. Then on January 12, 1972 came a manifestation from parties in the case submitting the matter without further arguments.

After a careful consideration of the legal question presented, it is the holding of this Court that Article 103 the Civil Code is not an absolute bar to the hearing motion for preliminary injunction prior to the expiration of the six-month period.

1. It is understandable why there should be a period during which the court is precluded from acting. Ordinarily of course, no such delay is permissible. Justice to parties would not thereby be served. The sooner the dispute is resolved, the better for all concerned. A suit for legal separation, however, is something else again. It involves a relationship on which the law for the best reasons would attach the quality of permanence. That there are times when domestic felicity is much less than it ought to be is not of course to be denied. Grievances, whether fancied or real, may be entertained by one or both of the spouses. There may be constant bickering. The loss affection on the part of one or both may be discernible. Nonetheless, it will not serve public interest, much less the welfare of the husband or the wife, to allow them to go their respective ways. Where there are offspring, the reason for maintaining the conjugal union is even more imperative. It is a mark of realism of the law that for certain cases, adultery on the part of the wife and concubinage on the part of the husband, or an attempt of one spouse against the life of the other, 1 it recognizes, albeit reluctantly, that the couple is better off apart. A suit for legal separation lies. Even then, the hope that the parties may settle their differences is not all together abandoned. The healing balm of time may aid in the process. Hopefully, the guilty parties may mend his or her ways, and the offended party may in turn exhibit magnanimity. Hence, the interposition of a six-month period before an action for legal separation is to be tried.

The court where the action is pending according to Article 103 is to remain passive. It must let the parties alone in the meanwhile. It is precluded from hearing the suit. There is then some plausibility for the view of the lower court that an ancillary motion such as one for preliminary mandatory injunction is not to be acted on. If it were otherwise, there would be a failure to abide by the literal language of such codal provision. That the law, however, remains cognizant of the need in certain cases for judicial power to assert itself is discernible from what is set forth in the following article. It reads thus: "After the filing of the petition for legal separation, the spouse shall be entitled to live separately from each other and manage their respective property. The husband shall continue to manage the conjugal partnership property but if the court deems it proper, it may appoint another to manage said property, in which case the administrator shall have the same rights and duties as a guardian and shall not be allowed to dispose of the income or of the capital except in accordance with the orders of the court." 2 There would appear to be then a recognition that the question of management of their respective property need not be left unresolved even during such six-month period. An administrator may even be appointed for the management of the property of the conjugal partnership. The absolute limitation from which the court suffers under the preceding article is thereby eased. The parties may in the meanwhile be heard. There is justification then for the petitioner's insistence that her motion for preliminary mandatory injunction should not be ignored by the lower court. There is all the more reason for this response from respondent Judge, considering that the husband whom she accused of concubinage and an attempt against her life would in the meanwhile continue in the management of what she claimed to be her paraphernal property, an assertion that was not specifically denied by him. What was held by this Court in Araneta v. Concepcion, 3 thus possesses relevance: "It is conceded that the period of six months fixed therein Article 103 (Civil Code) is evidently intended as a cooling off period to make possible a reconciliation between the spouses. The recital of their grievances against each other in court may only fan their already inflamed passions against one another, and the lawmaker has imposed the period to give them opportunity for dispassionate reflection. But this practical expedient, necessary to carry out legislative policy, does not have the effect of overriding other provisions such as the determination of the custody of the children and alimony and support pendente lite according to the circumstance ... The law expressly enjoins that these should be determined by the court according to the circumstances. If these are ignored or the courts close their eyes to actual facts, rank injustice may be caused." 4 At any rate, from the time of the issuance of the order complained of on August 4, 1971, more than six

months certainly had elapsed. Thus there can be no more impediment for the lower court acting on the motion of petitioner for the issuance of a writ of preliminary mandatory injunction.

WHEREFORE, the plea of petitioner for a writ of certiorari is granted, and the order of respondent Court of August 4, 1971, suspending the hearing on the petition for a writ of preliminary mandatory injunction is set aside. Respondent Judge is directed to proceed without delay to hear the motion for preliminary mandatory injunction. Costs against respondent Clemente G. Ramos.

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. 79284 November 27, 1987

FROILAN C. GANDIONCO, petitioner, vs.HON. SENEN C. PEÑARANDA, as Presiding Judge of the Regional Trial Court of Misamis Oriental, Branch 18, Cagayan de Oro City, and TERESITA S. GANDIONCO, respondents.

PADILLA, J.:

A special civil action for certiorari, with application for injunction, to annul (1) the Order of the respondent Judge, dated 10 December 1986, ordering petitioner to pay support pendente lite to private respondent (his wife) and their child, and (2) the Order of the same respondent Judge, dated 5 August 1987, denying petitioner's motion to suspend hearings in the action for legal separation filed against him by private respondent as well as his motion to inhibit respondent Judge from further hearing and trying the case.

On 29 May 1986, private respondent, the legal wife of the petitioner, filed with the Regional Trial Court of Misamis Oriental, 10th Judicial District, Branch 18, in Cagayan de Oro City, presided over by respondent Judge, a complaint against petitioner for legal separation, on the ground of concubinage, with a petition for support and payment of damages. This case was docketed as Civil Case No. 10636. On 13 October 1986, private respondent also filed with the Municipal Trial Court, General Santos City, a complaint against petitioner for concubinage, which was docketed on 23 October 1986 as Criminal Case No. 15437111. On 14 November 1986, application for the provisional remedy of support pendente lite, pending a decision in the action for legal separation, was filed by private respondent in the civil case for legal separation. The respondent judge, as already stated, on 10 December 1986, ordered The payment of support pendente lite.

In this recourse, petitioner contends that the civil action for legal separation and the incidents consequent thereto, such as, application for support pendente lite, should be suspended in view of the criminal case for concubinage filed against him the private respondent. In support of his contention, petitioner cites Art. III. Sec. 3 of the 1985 Rules on Criminal Procedure, which states:

SEC. 3. Other Civil action arising from offenses. — Whenever the offended party shall have instituted the civil action to enforce the civil liability arising from the offense. as contemplated in the first Section 1 hereof, the following rules shall be observed:

(a) After a criminal action has been commenced the pending civil action arising from the same offense shall be suspended, in whatever stage it may be found, until final judgment in the criminal proceeding has been rendered. . . .

The civil action for legal separation, grounded as it is on concubinage, it is petitioner's position that such civil action arises from, or is inextricably tied to the criminal action for concubinage, so that all proceedings related to legal

separation will have to be suspended to await conviction or acquittal for concubinage in the criminal case. Authority for this position is this Court's decision in the case of Jerusalem vs. Hon. Roberto Zurbano. 1

Petitioner's contention is not correct.

In Jerusalem, the Court's statement to the effect that suspension of an action for legal separation would be proper if an allegation of concubinage is made therein, relied solely on Sec. 1 of Rule 107 of the then provisions of the Rules of Court on criminal procedure, to wit:

Sec. 1. Rules governing civil actions arising from offenses.-Except as otherwise provided by law, the following rules shall he observed:

(a) When a criminal action is instituted, the civil action for recovery of civil liability arising from the offense charged is impliedly instituted with the criminal action, unless the offended party expressly waives the civil action or reserves his right to institute it separately;

(b) Criminal and civil actions arising from the same offense may be instituted separately, but after the criminal action has been commenced the civil action can not be instituted until final judgment has been rendered in the criminal action;

(c) After a criminal action has been commenced, no civil action arising from the same offense can be prosecuted and the same shall be suspended in whatever stage it may be found until final judgment in the criminal proceeding has been rendered ... (Emphasis supplied)

The provisions last quoted did not clearly state, as the 1985 Rules do, that the civil action to be suspended, with or upon the filing of a criminal action, is one which is "to enforce the civil liability arising from the offense". In other words, in view of the amendment under the 1985 Rules on Criminal Procedure, a civil action for legal separation, based on concubinage, may proceed ahead of, or simultaneously with, a criminal action for concubinage, because said civil action is not one "to enforce the civil liability arising from the offense" even if both the civil and criminal actions arise from or are related to the same offense. Such civil action is one intended to obtain the right to live separately, with the legal consequences thereof, such as, the dissolution of the conjugal partnership of gains, custody of offsprings, support, and disqualification from inheriting from the innocent spouse, among others. As correctly pointed out by the respondent Judge in his Order dated 5 August 1987:

The unreported case of JERUSALEM vs. Hon. Roberto Zurbano, Judge of CFI of Antique, et al., L-11935, April 24, 1959 (105 Phil. 1277) is not controlling. It applied paragraph C of Sec. 1, of then Rule 107 of the Rules of Court, which reads:

After a criminal action has been commenced, no civil action arising from the same offense can be prosecuted and the same shall be suspended, in whatever stage it may be found, until final judgment in the criminal proceeding has been rendered. (Emphasis supplied)

The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal Procedure which refers to "civil actions to enforce the civil liability arising from the offense" as contemplated in the first paragraph of Section 1 of Rule 111-which is a civil action "for recovery of civil liability arising from the offense charged." Sec. 1, Rule 111, (1985) is specific that it refers to civil action for the recovery of civil liability arising from the offense charged. Whereas, the old Sec. 1 (c), Rule 107 simply referred to "Civil action arising from the offense."

As earlier noted this action for legal separation is not to recover civil liability, in the main, but is aimed at the conjugal rights of the spouses and their relations to each other, within the contemplation of Articles 7 to 108, of the Civil Code."  2

Petitioner also argues that his conviction for concubinage will have to be first secured before the action for legal separation can prosper or succeed, as the basis of the action for legal separation is his alleged offense of concubinage.

Petitioner's assumption is erroneous.

A decree of legal separation, on the ground of concubinage, may be issued upon proof by preponderance of evidence in the action for legal separation. 3 No criminal proceeding or conviction is necessary. To this end, the doctrine in Francisco

vs. Tayao 4 has been modified, as that case was decided under Act. No. 2710, when absolute divorce was then allowed and had for its grounds the same grounds for legal separation under the New Civil Code, with the requirement, under such former law, that the guilt of defendant spouses had to be established by final judgment in a criminal action. That requirement has not been reproduced or adopted by the framers of the present Civil Code, and the omission has been uniformly accepted as a modification of the stringent rule in Francisco v. Tayao. 5

Petitioner's attempt to resist payment of support pendente lite to his wife must also fail, as we find no proof of grave abuse of discretion on the part of the respondent Judge in ordering the same. Support pendente lite, as a remedy, can be availed of in an action for legal separation, and granted at the discretion of the judge. 6 If petitioner finds the amount of support pendente lite ordered as too onerous, he can always file a motion to modify or reduce the same.7

Petitioner lastly seeks to have the respondent Judge disqualified from hearing the case, as the grant of supportpendente lite and the denial of the motion to suspend hearings in the case, are taken by the petitioner as a disregard of applicable laws and existing doctrines, thereby showing the respondent Judge's alleged manifest partiality to private respondent.

Petitioner's contention is without merit. Divergence of opinions between a judge hearing a case and a party's counsel, as to applicable laws and jurisprudence, is not a sufficient ground to disqualify the judge from hearing the case, on the ground of bias and manifest partiality. This is more so, in this case, where we find the judge's disposition of petitioner's motions to be sound and well-taken.

WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION

G.R. No. L-53880 March 17, 1994

ENRICO L. PACETE, CLARITA DE LA CONCEPCION, EMELDA C. PACETE, EVELINA C. PACETE and EDUARDO C. PACETE, petitioners, vs.HON. GLICERIO V. CARRIAGA, JR. and CONCEPCION (CONCHITA) ALANIS PACETE, respondents.

Juan G. Sibug and Rodolfo B. Quiachon for petitioners.

Julio F. Andres, Jr. for private respondent.

VITUG, J.:

The issue in this petition for certiorari is whether or not the Court of First Instance (now Regional Trial Court) of Cotabato, Branch I, in Cotabato City, gravely abused its discretion in denying petitioners' motion for extension of time to file their answer in Civil Case No. 2518, in declaring petitioners in default and in rendering its decision of 17 March 1980 which, among other things, decreed the legal separation of petitioner Enrico L. Pacete and private respondent Concepcion Alanis and held to be null and void ab initio the marriage of Enrico L. Pacete to Clarita de la Concepcion.

On 29 October 1979, Concepcion Alanis filed with the court below a complaint for the declaration of nullity of the marriage between her erstwhile husband Enrico L. Pacete and one Clarita de la Concepcion, as well as for legal separation (between Alanis and Pacete), accounting and separation of property. In her complaint, she averred that she

was married to Pacete on 30 April 1938 before the Justice of the Peace of Cotabato, Cotabato; that they had a child named Consuelo who was born on 11 March 1943; that Pacete subsequently contracted (in 1948) a second marriage with Clarita de la Concepcion in Kidapawan, North Cotabato; that she learned of such marriage only on 01 August 1979; that during her marriage to Pacete, the latter acquired vast property consisting of large tracts of land, fishponds and several motor vehicles; that he fraudulently placed the several pieces of property either in his name and Clarita or in the names of his children with Clarita and other "dummies;" that Pacete ignored overtures for an amicable settlement; and that reconciliation between her and Pacete was impossible since he evidently preferred to continue living with Clarita.

The defendants were each served with summons on 15 November 1979. They filed a motion for an extension of twenty (20) days from 30 November 1979 within which to file an answer. The court granted the motion. On 18 December 1979, appearing through a new counsel, the defendants filed a second motion for an extension of another thirty (30) days from 20 December 1979. On 07 January 1980, the lower court granted the motion but only for twenty (20) days to be counted from 20 December 1979 or until 09 January 1980. The Order of the court was mailed to defendants' counsel on 11 January 1980. Likely still unaware of the court order, the defendants, on 05 February 1980, again filed another motion (dated 18 January 1980) for an extension of "fifteen (15) days counted from the expiration of the 30-day period previously sought" within which to file an answer. The following day, or on 06 February 1980, the court denied this last motion on the ground that it was "filed after the original period given . . . as first extension had expired."  1

The plaintiff thereupon filed a motion to declare the defendants in default, which the court forthwith granted. The plaintiff was then directed to present her evidence. 2 The court received plaintiff's evidence during the hearings held on 15, 20, 21 and 22 February 1980.

On 17 March 1980, the court 3 promulgated the herein questioned decision, disposing of the case, thus —

WHEREFORE, order is hereby issued ordering:

1. The issuance of a Decree of Legal Separation of the marriage between, the plaintiff, Concepcion (Conchita) Alanis Pacete and the herein defendants, Enrico L. Pacete, in accordance with the Philippine laws and with consequences, as provided for by our laws;

2. That the following properties are hereby declared as the conjugal properties of the partnership of the plaintiff, Concepcion (Conchita) Alanis Pacete and the defendant, Enrico L. Pacete, half and half, to wit:

1. The parcel of land covered by TCT No. V-815 which is a parcel of land situated in the barrio of Langcong, Municipality of Matanog (previously of Parang), province of Maguindanao (previously of Cotabato province) with an area of 45,265 square meters registered in the name of Enrico Pacete, Filipino, of legal age, married to Conchita Alanis as shown in Exhibits "B" and "B-1" for the plaintiff.

2. A parcel of land covered by Transfer Certificate of Title No. T-20442, with an area of 538 square meters and covered by Tax Declaration No. 2650 (74) in the name of Enrico Pacete, situated in the Poblacion of Kidapawan, North Cotabato, together with all its improvements, which parcel of land, as shown by Exhibits "K-1" was acquired by way of absolute deed of sale executed by Amrosio Mondog on January 14, 1965.

3. A parcel of land covered by Transfer Certificate of Title No. T-20424 and covered by Tax Declaration No. 803 (74), with an area of 5.1670 hectares, more or less, as shown by Exhibit "R", the same was registered in the name of Enrico Pacete and the same was acquired by Enrico Pacete last February 17, 1967 from Ambag Ampoy, as shown by Exhibit "R-1", situated at Musan, Kidapawan, North Cotabato.

4. A parcel of land situated at Lanao, Kidapawan, North Cotabato, with an area of 5.0567 hectares, covered by Tax Declaration No. 4332 (74), as shown by Exhibit "S", and registered in the name of Enrico Pacete.

5. A parcel of land covered by Transfer Certificate of Title No. T-9750, situated at Lika, Mlang, North Cotabato, with an area of 4.9841 hectares and the same is covered by Tax Declaration No. 803 (74) and registered in the name of Enrico

Pacete and which land was acquired by Enrico Pacete from Salvador Pacete on September 24, 1962, as shown by Exhibit "Q-1".

6. A parcel of land covered by Transfer Certificate of Title No. T-9944, with an area of 9.9566 and also covered by Tax Declaration No. 8608 (74) and registered in the name of the defendant Enrico L. Pacete which Enrico L. Pacete acquired from Sancho Balingcos last October 22, 1962, as shown by Exhibit "L-1" and which parcel of land is situated at (Kialab), Kiab, Matalam, North Cotabato.

7. A parcel of land covered by Transfer Certificate of Title No. T-9227, situated at Kiab, Matalam, North Cotabato, with an area of 12.04339 hectares, more or less, and also covered by Tax Declaration No. 8607 (74) both in the name of the defendant Enrico L. Pacete which he acquired last October 15, 1962 from Minda Bernardino, as shown by Exhibit "M-1".

8. A parcel of land covered by Transfer Certificate of Title No. T-9228, situated at Kiab, Matalam, North Cotabato, with an area of 10.8908 hectares, registered in the name of Enrico Pacete and also covered by Tax Declaration No. 5781 (74) in the name of Enrico Pacete and which parcel of land he acquired last September 25, 1962 from Conchita dela Torre, as shown by Exhibit "P-1".

9. A parcel of land covered by Transfer Certificate of Title No. T-10301, situated at Linao, Matalam, North Cotabato, with an area of 7.2547 hectares, registered in the name of Enrico Pacete and also covered by Tax Declaration No. 8716 (74) also in the name of Enrico Pacete which Enrico Pacete acquired from Agustin Bijo last July 16, 1963, as shown by Exhibit "N-1".

10. A parcel of land covered by Transfer Certificate of Title No. 12728 in the name of the defendant, Enrico L. Pacete, with an area of 10.9006 hectares, situated at Linao, Matalam, North Cotabato and is also covered by Tax Declaration No. 5745 (74) in the name of Enrico Pacete, as shown on Exhibit "O" and which Enrico Pacete acquired last December 31, 1963 from Eliseo Pugni, as shown on Exhibit "0-1".

3. Ordering the Cancellation of Original Certificate of Title No. P-34243 covering Lot No. 1066, issued in the name of Evelina Pacete, situated at Kiab, Matalam, North Cotabato, and ordering the registration of the same in the joint name of Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete as their conjugal property, with address on the part of Concepcion (Conchita) Alanis Pacete at Parang, Maguindanao and on the part of Enrico L. Pacete at Kidapawan, North Cotabato.

4. Ordering likewise the cancellation of Original Certificate of Title No. V-20101, covering Lot No. 77, in the name of Eduardo C. Pacete, situated at New Lawaan, Mlang, North Cotabato, and the issuance of a new Transfer Certificate of Title in the joint name of (half and half) Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete.

5. Ordering likewise the cancellation of Original Certificate of Title No. P-29890, covering Lot 1068, situated at Kiab, Matalam, North Cotabato, with an area of 12.1031 hectares, in the name of Emelda C. Pacete and the issuance of a new Transfer Certificate of Title in the joint name (half and half) of Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete; and declaring that the fishpond situated at Barrio Tumanan, Bislig, Surigao Del Sur, with an area of 48 hectares and covered by Fishpond Lease Agreement of Emelda C. Pacete, dated July 29, 1977 be cancelled and in lieu thereof, the joint name of Concepcion (Conchita) Alanis Pacete and her husband, Enrico L. Pacete, be registered as their joint property, including the 50 hectares fishpond situated in the same place, Barrio Timanan, Bislig, Surigao del Sur.

6. Ordering the following motor vehicles to be the joint properties of the conjugal partnership of Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete, viz:

a. Motor vehicle with Plate No. T-RG-783; Make, Dodge; Motor No. T137-20561; Chassis No. 83920393, and Type, Mcarrier;

b. Motor vehicle with Plate No. T-RG-784; Make, Dodge; Motor No. T214-229547; Chassis No. 10D-1302-C; and Type, Mcarrier;

c. Motor vehicle with Plate No. J-PR-818; Make, Ford; Motor No. GRW-116188; Chassis No. HOCC-GPW-1161-88-C; Type, Jeep;

d. Motor vehicle with Plate No. TH-5J-583; Make, Ford: Motor No. F70MU5-11111; Chassis No. HOCC-GPW-1161188-G; Type, Stake;

e. Motor vehicle with Plate No. TH-5J-584; Make, Hino; Motor No. ED300-45758; Chassis No. KB222-22044; Type, Stake; and

f. Motor vehicle with Plate No. TH-5J-585; Make, Ford: Motor No. LTC-780-Dv; Chassis No. 10F-13582-K; Type, Stake.

7. Ordering the defendant Enrico L. Pacete to pay the plaintiff the sum of P46,950.00 which is the share of the plaintiff in the unaccounted income of the ricemill and corn sheller for three years from 1971 to 1973.

8. Ordering the defendant, Enrico L. Pacete, to reimburse the plaintiff the monetary equipment of 30% of whether the plaintiff has recovered as attorney's fees;

9. Declaring the subsequent marriage between defendant Enrico L. Pacete and Clarita de la Concepcion to be void ab initio; and

10. Ordering the defendants to pay the costs of this suit. 4

Hence, the instant special civil action of certiorari.

Under ordinary circumstances, the petition would have outrightly been dismissed, for, as also pointed out by private respondents, the proper remedy of petitioners should have instead been either to appeal from the judgment by default or to file a petition for relief from judgment. 5 This rule, however, is not inflexible; a petition forcertiorari is allowed when the default order is improperly declared, or even when it is properly declared, where grave abuse of discretion attended such declaration. 6 In these exceptional instances, the special civil action of certiorari to declare the nullity of a judgment by default is available. 7 In the case at bench, the default order unquestionably is not legally sanctioned. The Civil Code provides:

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

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

The provision has been taken from Article 30 of the California Civil Code, 8 and it is, in substance, reproduced in Article 60 of the Family Code. 9

Article 101 reflects the public policy on marriages, and it should easily explain the mandatory tenor of the law. InBrown v. Yambao, 10 the Court has observed:

The policy of Article 101 of the new Civil Code, calling for the intervention of the state attorneys in case of uncontested proceedings for legal separation (and of annulment of marriages, under Article 88), is to emphasize that marriage is more than a mere contract; that it is a social institution in which the state is vitally interested, so that its continuation or interruption can not be made to depend upon the parties themselves (Civil Code, Article 52; Adong vs. Cheong Gee, 43 Phil. 43; Ramirez v. Gmur, 42 Phil. 855; Goitia v. Campos, 35 Phil. 252). It is consonant with this policy that the inquiry by the Fiscal should be allowed to focus upon any relevant matter that may indicate whether the proceedings for separation or annulment are fully justified or not.

Article 103 of the Civil Code, now Article 58 of the Family Code, further mandates that an action for legal separation must "in no case be tried before six months shall have elapsed since the filing of the petition," obviously in order to provide the parties a "cooling-off" period. In this interim, the court should take steps toward getting the parties to reconcile.

The significance of the above substantive provisions of the law is further underscored by the inclusion of the following provision in Rule 18 of the Rules of Court:

Sec. 6. No defaults in actions for annulments of marriage or for legal separation. — If the defendant in an action for annulment of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated.

The special prescriptions on actions that can put the integrity of marriage to possible jeopardy are impelled by no less than the State's interest in the marriage relation and its avowed intention not to leave the matter within the exclusive domain and the vagaries of the parties to alone dictate.

It is clear that the petitioner did, in fact, specifically pray for legal separation. 11 That other remedies, whether principal or incidental, have likewise been sought in the same action cannot dispense, nor excuse compliance, with any of the statutory requirements aforequoted.

WHEREFORE, the petition for certiorari is hereby GRANTED and the proceedings below, including the Decision of 17 March 1980 appealed from, are NULLIFIED and SET ASIDE. No costs.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-13982             July 31, 1920

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

Del Rosario and Del Rosario and W. F. Mueller for petitioner.J. Lopez Vito for respondents.

JOHNSON, J.:

This is an original petition presented in the Supreme Court. Its purpose is to obtain an order declaring: (a) That the respondent, the Honorable Antonio Villareal, as Auxiliary Judge sitting in the Court of First Instance of the province of Iloilo, has no jurisdiction to take cognizance of a certain action for divorce instituted in said court by the respondent Narcisa Geopano against her husband, Diego de la Viña, the petitioner herein; (b) that the said respondent judge has exceeded his power and authority in issuing, in said action, a preliminary injunction against the said petitioner prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action; and (c) that all the proceedings theretofore had in said court were null and void.

It appears from the record that on September 17, 1917, Narcisa Geopano filed a complaint in the Court of First Instance of the Province of Iloilo against Diego de la Viña, alleging: (1) That she was a resident of the municipality of Iloilo, Province of Iloilo, and that the defendant was a resident of the municipality of Vallehermoso, Province of Oriental Negros; (2) that she was the legitimate wife of the defendant, having been married to him in the municipality of Guijulñgan, Province of Negros Oriental, in the year 1888; (3) that since their said marriage plaintiff and defendant had lived as husband and wife and had nine children, three of whom were living and were already of age; (4) that during their marriage plaintiff and defendant had acquired property, real and personal, the value of which was about P300,000 and all of which was under the administration of the defendant; (5) that since the year 1913 and up to the date of the complaint, the defendant had been committing acts of adultery with one Ana Calog, sustaining illicit relations with her

and having her as his concubine, with public scandal and in disgrace of the plaintiff; (6) that because of said illicit relations, the defendant ejected the plaintiff from the conjugal home, for which reason she was obliged to live in the city of Iloilo, where she had since established her habitual residence; and (7) that the plaintiff, scorned by her husband, the defendant, had no means of support and was living only at the expense of one of her daughters. Upon said allegations she prayed for (a) a decree of divorce, (b) the partition of the conjugal property, and (c) alimony pendente lite in the sum of P400 per month.

Subsequent to the filing of the said complaint, Narcisa Geopano, the plaintiff therein, presented a motion, which was later amended, alleging, among other things, that since the filing of her complaint she had personal knowledge that the defendant was trying to alienate or encumber the property which belonged to the conjugal partnership between the plaintiff and the defendant, to the prejudice of the plaintiff, and prayed that a preliminary injunction be issued against the defendant restraining and prohibiting him in the premises.

The defendant Diego de la Viña, petitioner herein, opposed the said motion for a preliminary injunction, and, subsequently, demurred to the complaint upon the ground that the court had no jurisdiction to take cognizance of the cause, "nor over the person of the defendant."

After hearing the respective parties the respondent judge, in to separate orders, dated November 1 and November 2, 1917, respectively, overruled the defendant's demurrer, and granted the preliminary injunction prayed for by the plaintiff.

Thereafter and on April 27, 1918, the defendant, Diego de la Viña filed the present petition for certiorari in this court, upon the ground that the respondent judge had no jurisdiction to take cognizance of the action in question, and had exceeded his power and authority in issuing said preliminary injunction.

The questions arising out of the foregoing facts are as follows:

1. May a married woman ever acquire a residence or domicile separate from that of her husband during the existence of the marriage?

2. In an action for divorce, brought by the wife against her husband, in which the partition of the conjugal property is also prayed for, may the wife obtain a preliminary injunction against the husband restraining and prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action?

I.

The petitioner contends that the Court of First Instance of Iloilo had no jurisdiction to take cognizance of the said action for divorce because the defendant therein was a resident of the Province of Negros Oriental and the plaintiff, as the wife of the defendant, must also be considered a resident of the same province inasmuch as, under the law, the domicile of the husband is also the domicile of the wife; that the plaintiff could not acquire a residence in Iloilo before the arriage between her and the defendant was legally dissolved.

This contention of the petitioner is not tenable. It is true, as a general of law, that the domicile of the wife follows that of her husband. This rule is founded upon the theoretic identity of person and of interest between the husband and the wife, and the presumption that, from the nature of the relation, the home of the one is that of the other. It is intended to promote, strenghten, and secure their interests in this relation, as it ordinarily exists, where union and harmony prevail. But the authorities are unanimous in holding that this is not an absolute rule. "Under modern laws it is clear that many exceptions to the rule that the domicile from of the wife is determined by that of her husband must obtain. Accordingly, the wife may acquire another and seperate domicile from that of her husband where the theorical unity of husband and wife is is dissolved, as it is by the institution of divorce proceedings; or where the husband has given cause for divorce; or where there is a separation of the parties by agreement, or a permanent separation due to desertion of the wife by the husband or attributable to cruel treatment on the part of the husband; or where there has been a forfeiture by the wife of the benefit of the husband's domicile." (9 R. C. L., 545.)

The case of Narcisa Geopano comes under one of the many exceptions above-mentioned, to wit: "Where the husband has given cause for divorce, the wife may acquire another and seperate domicile from that of her husband." In support of this proposition there is a formidable array of authorities. We shall content ourselves with illustrative quotations from a few of them, as follows:

Although the law fixes the domicile of the wife as being that of her husband, universal jurisprudence recognizes an exception to the rule in the case where the husband's conduct has been such as to furnish lawful ground for a divorce, which justifies her in leaving him, and, therefore, necessarily authorities her to live elsewhere and to acquire a separate domicile. Cheever vs. Wilson, 9 Wall. (U. S.), 108; Barber vs. Barber, 21 How. (U. S.), 582; 2 Bishop, Mar. and Div., 475; Schouler, Hus. and Wife, sec. 574; 5 Am. and Eng. Encyc. of Law, p. 756." (Smith vs. Smith, 43 La. Ann., 1140, 1146.)

The matrimonial domicile of the wife is usually that of the husband, but if she is justified in leaving him because his conduct has been such as to entitle her to a divorce, and she thereupon does leave him and go into another state for the purpose of there permanently residing, she acquires a domicile in the latter state. (Atherton vs. Atherton, 155 N. Y., 129; 63 Am. St. Rep., 650.)

The law will recognize a wife as having a separate existence, and separate interests, and separate rights, in those cases where the express object of all proceedings is to show that the relation itself ougth to be dissolved, or so modified as to establish separate interests, and especially a separate domicile and home, bed and board being put, apart for the whole, as expressive of the idea of home. Otherwise the parties, in this respect, would stand upon very unequal ground, it being in the power of the husband to change his domicile at will, but not in that of the wife. (Harteau vs. Harteau, 14 Pick. [Mass.], 181; 25 Am. Dec., 372, 375-376.)

Under the pauper laws, and upon general principles, the wife is regarded as having the domicile of her husband; hut this results from his marital rights, and the duties of the wife. If the husband has forfeited those rights be misbehavior, and has left and deserted the wife, they may have different domiciles, in the view of the law regulating divorces. (Harding vs. Alden, 9 Greenl. [Me.], 140; 23 Am. Dec., 549, 552.)

Though as a general principle of law the domicile of the husband is regarded as the domicile of the wife, according to the prevailing view a wife may acquire a residence or domicile separate from her husband so as to confer jurisdiction upon the courts of the state, in which her domicile or residence is established, to decree a divorce in her favor. (9 R. C. L. 400-401, citing various cases.)

The law making the domicile of the husband that of the wife is applicable only to their relations with third parties, and has no application in cases of actual separation and controversy between themselves as to the temporary or permanent severance of the marriage ties by judicial proceedings. Vence vs. Vence, 15 How. Pr., 497; Schonwald vs. Schonwald, 55 N. C., 367; Cheever vs. Wilson, 76 U. S. (9 Wall.), 109; 19 L. ed., 605. (Notes, p. 498, 16 L. R. A.)

In the case of Schonwald vs. Schonwald (55 N. C., 343), the plaintiff tried to do what the petitioner in this case insists the respondent Narcisa Geopano should have done. In that case the wife filed a bill of divorce in a court in North Carolina, where her husband resided. She herself had not resided in that state for three years previous to the filing of the suit, as required by the statute; but she claimed that the domicile of her husband was also her domicile and, inasmuch as her husband, the defendant, had been a resident of North Carolina for more than three years, she had also been a resident of that state during that time. The court dismissed the bill, holding that the legal maxim that "her domicile is that of her husband" would not avail in the stead of an actual residence. The court said:

It is true that for many purpose the domicile of the husband is the domicile of the wife, but it is not so for every purpose. The maxim that the domicile of the wife follows that of the husband cannot be applied to oust the court of its jurisdiction; neither, from party of reasons can it give jurisdiction. (P. 344.)

Turning to the Spanish authorities, we find that they agree with the American authorities in holding that the maxim or rule that the domicile of the wife follows that of the husband, is not an absolute one. Scaevola, commenting on article 40 of the Civil Code (which is the only legal provision or authority relied upon by the petitioner in this case), says:

Although article 64 of the Law of Civil Procedure provides that the domicile of a married woman, not legally separated from her husband, is that of the latter, yet, when the tacit consent of the husband and other circumstances justify it, for the purpose of determining jurisdiction, the habitual residence of the woman should be considered as her domicile where her right may be exercised in accordance with article 63. (Scaevola, Civil Code, p. 354.)

Manresa, commenting upon the same article (art. 40) says:

The domicile of married women not legally separated from their husband shall be that of the latter. This principle, maintained by the Supreme Court in numerous decisions, was modified in a particular case by the decision of June 17, 1887, and in conformity with this last decision, three others were afterwards rendered on October 13, 23, and 28, 1899, in all of which it is declared that when married women as well as children subject to parental authority live, with the acquiescence of their husbands or fathers, in a place distinct from where the latter live, they have their own independent domicile, which should be considered in determining jurisdiction in cases of provisional support guardianship of persons, etc. (1 Manresa, 233.)

If the wife can acquire a separate residence when her husband consents or acquiesces, we see no reason why the law will not allow her to do so when, as alleged in the present case, the husband unlawfully ejects her from the conjugal home in order that he may freely indulge in his illicit relations with another woman. Under no other circumstance could a wife be more justified in establishing a separate residence from that of her husband. For her to continue living with him, even if he had permitted it, would have been a condonation of his flagrant breach of fidelity and marital duty. Furthermore, in this case no longer was there an "identity of persons and of interest between the husband and the wife." Therefore the law allowed her to acquire a separate residence. For, "it would do violence to the plainest principle of common sense and common justice of to call this residence of the guilty husband, where the wife is forbidden to come, . . . the domicile of the wife." (Champon vs. Champon, 40 La. Ann., 28.)

It is clear, therefore, that a married woman may acquire a residence or domicile separate from that of her husband, during the existence of the marriage, where the husband has given cause for divorce.

II.

We come now to the second question — whether or not the respondent judge exceeded his power in issuing the preliminary injunction complained of by the petitioner.

Section 164 of Act No. 190 provides:

A preliminary injunction may be granted when it is established, in the manner hereinafter provided, to the satisfaction of the judge granting it:

1. That the plaintiff is entitled to the relief demanded and such relief, or any part thereof, consists in restraining the commission or continuance of the acts complained of either for a limited period or perpetually;

2. That the commission or continuance of some act complained of during the litigation would probably work injustice to the plaintiff;

3. That the defendant is doing, or threatens, on is about to do, or is procuring or suffering to be done, some act probably in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual.

The petitioner quotes the foregoing section and argues that the respondent Narcisa Geopano was not entitled to have a preliminary injunction issued against her husband because contrary to the requirement of the first paragraph of said section, she was not entitled to the relief demanded, which consisted in restraining the power and authority which the law confers upon the husband; that under articles 1412 and 1413 of the Civil Code, the husband is the manager of the conjugal partnership and, as such, is empowered to alienate and encumber and conjugal property without the consent of the wife; that neither could the wife obtain a preliminary injunction under paragraph 3 of said section, upon the ground that the defendant was committing some acts in violation of the plaintiff's rights, because the plaintiff, as the

wife of the defendant, had nor right to intervene in the administration of the conjugal property, and therefore no right of hers was violated.

We cannot subscribe to that argument of counsel. The law making the husband the sole administrator of the property of the conjugal partnership is founded upon necessity and convenience as well as upon the presumption that, from the very nature of the relating between husband and wife, the former will promote and not injure the interests of the latter. So long as this harmonious relation, as contemplated by law, continues, the wife cannot and should not interfere with the husband in his judicious administration of the conjugal property. But when that relation ceases and, in a proper action, the wife seeks to dissolve the marriage and to partition the conjugal property, it is just and proper, in order to protect the interests of the wife, that the husband's power of administration be curtailed, during the pendency of the action, insofar as alienating or encumbering the conjugal property is concerned.

In her motion for a preliminary injunction, Narcisa Geopano alleged that the defendant was about to alienate or encumber the property belonging to the conjugal partnerships, with the object of injuring her interests; and this allegation does not appear to have been controverted by the defendant either in this court or in the court below. In view of this fact, we are of the opinion that under both paragraphs 2 and 3 of section 164 of Act No. 190, above quoted, the respondent judge was empowered and justified in granting the preliminary injunction prayed for by her. It cannot be doubted that, if the defendant should dispose of all or any part of the conjugal property during the pendency of the action for divorce, and squander or fraudulently conceal the proceeds, that act "would probably work injustice to the plaintiff," or that it would probably be "in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual." In this case the plaintiff's rights sought to be protected by said paragraph 3 is not the right to administer the conjugal property, as counsel for the petitioner believes, but the right to share in the conjugal property upon the dissolution of the conjugal partnership.

The case under consideration, then, is covered or contemplated by the statute (sec. 164, Act No. 190), so that there can be no question, in our opinion, as to the power of the respondent judge to issue the preliminary injunction complained of by the petitioner. Indeed, even in a case not covered by the statute this court had upheld the power of Court of First Instance to grant preliminary injunctions. In the case of Manila Electric Railroad and Light Company vs. Del Rosario and Jose (22 Phil., 433), Doroteo Jose asked for, and the Court of First Instance granted ex parte, a writ of preliminary mandatory injunction directing the Manila Electric Railroad and Light Company to continue furnishing electricity to Jose. Thereupon the Light Company filed in this court a petition for the writ of certiorari against Judge S. del Rosario upon the ground that Courts of First Instance in these Islands are wholly without jurisdiction to issue preliminary mandatory injunctions under any circumstances whatever. This court denied that petition, determining the power of the Courts of First Instance to issue preliminary injunction, as follows:

The power to grant preliminary injunctions, both preventative and mandatory, is a logical and necessary incident of the general powers conferred upon Courts of First Instance in these Islands, as courts of record of general and unlimited original jurisdiction, both legal and equitable.

Insofar as the statute limits or prescribes the exercise of this power it must be followed: but beyond this, and in cases not covered by or contemplated by the statute, these courts must exercise their jurisdiction in the issuance of preliminary injunctions upon sound principles applicable to the circumstances of each particular case, having in mind the nature of the remedy, and the doctrine and practice established in the courts upon which our judicial is modeled.

The only limitation upon the power of Courts of First Instance to issue preliminary injunctions, either mandatory of preventative, is that they are to be issued in the "manner" or according to the "method" provided therefor in the Code of Civil Procedure.

We conclude, therefore, that in an action for divorce brought by the wife against the husband, in which the partition of the conjugal property is also prayed for, the wife may obtain a preliminary injunction against the husband, prohibiting the latter from alienating or encumbering any part of the conjugal property during the pendency of the action.

It follows from all of the foregoing that the respondent, the Honorable Antonio Villareal, as Auxiliary Judge sitting in the Court of First Instance of the Province of Iloilo, had jurisdiction to hear and determine the action for divorce instituted in said court by the respondent Narcisa Geopano, and that he did not exceed his power and authority in issuing a preliminary injunction against the defendant, prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action.

Therefore, the petition should be and is hereby denied, with costs against the petitioner. So ordered.

Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

G.R. No. 106169 February 14, 1994

SAMSON T. SABALONES, petitioner, vs.THE COURT OF APPEALS and REMEDIOS GAVIOLA-SABALONES, respondents.

Leven S. Puno for petitioner.

Benigno M. Puno for private respondent.

CRUZ, J.:

The subject of this petition is the preliminary injunction issued by the respondent court pending resolution of a case on appeal. We deal only with this matter and not the merits of the case.

As a member of our diplomatic service assigned to different countries during his successive tours of duties, petitioner Samson T. Sabalones left to his wife, herein respondent Remedios Gaviola-Sabalones, the administration of some of their conjugal, properties for fifteen years.

Sabalones retired as ambassador in 1985 and came back to the Philippines but not to his wife and their children. Four years later, he filed an action for judicial authorization to sell a building and lot located at #17 Eisenhower St., Greenhills, San Juan, Metro Manila, belonging to the conjugal partnership. He claimed that he was sixty-eight years old, very sick and living alone without any income, and that his share of the proceeds of the sale to defray the prohibitive cost of his hospitalization and medical treatment.

In her answer, the private respondent opposed the authorization and filed a counterclaim for legal separation. She alleged that the house in Greenhills was being occupied by her and their six children and that they were depending for their support on the rentals from another conjugal property, a building and lot in Forbes Park which was on lease to Nobumichi Izumi. She also informed the court that despite her husband's retirement, he had not returned to his legitimate family and was instead maintaining a separate residence in Don Antonio Heights, Fairview, Quezon City, with Thelma Cumareng and their three children.

In her prayer, she asked the court to grant the decree of legal separation and order the liquidation of their conjugal properties, with forfeiture of her husband's share therein because of his adultery. She also prayed that it enjoin the petitioner and his agents from a) disturbing the occupants of the Forbes Park property and b) disposing of or encumbering any of the conjugal properties.

After trial, Judge Mariano M. Umali, found that the petitioner had indeed contracted a bigamous marriage on October 5, 1981, with Thelma Cumareng, to whom he had returned upon his retirement in 1985 at a separate residence. The court thus decreed the legal separation of the spouses and the forfeiture of the petitioner's share in the conjugal properties, declaring as well that he was not entitled to support from his respondent wife. 1

This decision was appealed to the respondent court. Pendente lite, the respondent wife filed a motion for the issuance of a writ of preliminary injunction to enjoin the petitioner from interfering with the administration of their properties in Greenhills and Forbes Park. She alleged inter alia that he had harassed the tenant of the Forbes Park property by informing him that his lease would not be renewed. She also complained that the petitioner had disposed of one of their valuable conjugal properties in the United States in favor of his paramour, to the prejudice of his legitimate wife and children.

The petitioner opposed this motion and filed his own motion to prevent his wife from entering into a new contract of lease over the Forbes Park property with its present tenant, or with future tenants, without his consent.

After hearing, the Court of Appeals, in an order dated April 7, 1992, granted the preliminary injunction prayed for by his wife. 2

The petitioner now assails this order, arguing that since the law provides for a joint administration of the conjugal properties by the husband and wife, no injunctive relief can be issued against one or the other because no right will be violated. In support of this contention, he cites Art. 124 of the Family Code, reading as follows:

Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of the administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or the authorization by the court before the offer is withdrawn by either or both offerors.

He further notes that the respondent court failed to appoint an administrator of the conjugal assets as mandated by Art. 61 of the Code, thus:

Art. 61 After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other.

The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court.

The Court has carefully considered the issues and the arguments of the parties and finds that the petition has no merit.

We agree with the respondent court that pending the appointment of an administrator over the whole mass of conjugal assets, the respondent court was justified in allowing the wife to continue with her administration. It was also correct, taking into account the evidence adduced at the hearing, in enjoining the petitioner from interfering with his wife's administration pending resolution of the appeal.

The law does indeed grant to the spouses joint administration over the conjugal properties as clearly provided in the above-cited Article 124 of the Family Code. However, Article 61, also above quoted, states that after a petition for legal separation has been filed, the trial court shall, in the absence of a written agreement between the couple, appoint either one of the spouses or a third person to act as the administrator.

While it is true that no formal designation of the administrator has been made, such designation was implicit in the decision of the trial court denying the petitioner any share in the conjugal properties (and thus also disqualifying him as administrator thereof). That designation was in effect approved by the Court of Appeals when it issued in favor of the respondent wife the preliminary injunction now under challenge.

The primary purpose of the provisional remedy of injunction is to preserve the status quo of the things subject of the action or the relations between the parties and thus protect the rights of the plaintiff respecting these matters during the pendency of the suit. Otherwise, the defendant may, before final judgment, do or continue doing the act which the plaintiff asks the court to restrain and thus make ineffectual the final judgment that may be rendered afterwards in favor of the plaintiff. 3

As observed by Francisco, "Injunction is primarily a preventive remedy. Its province is to afford relief against future acts which are against equity and good conscience and to keep and preserve the thing in the status quo, rather than to remedy what is past or to punish for wrongful acts already committed. It may issue to prevent future wrongs although no right has yet been violated." 4

The Court notes that the wife has been administering the subject properties for almost nineteen years now, apparently without complaint on the part of the petitioner. He has not alleged, much less shown, that her administration has caused prejudice to the conjugal partnership. What he merely suggests is that the lease of the Forbes Park property could be renewed on better terms, or he should at least be given his share of the rentals.

In her motion for the issuance of a preliminary injunction, the respondent wife alleged that the petitioner's harassment of their tenant at Forbes Park would jeopardize the lease and deprive her and her children of the income therefrom on which they depend for their subsistence. She also testified the numerous . . . including various dollar accounts, two houses in Quezon City and Cebu City, and a Mercedes Benz. The private respondent also complained that on June 10, 1991, the petitioner executed a quitclaim over their conjugal property in Apple Valley, San Bernardino, California, U.S.A., in favor of Thelma Cumareng, to improve his paramour's luxurious lifestyle to the prejudice of his legitimate family.

These allegations, none of which was refuted by the husband, show that the injunction is necessary to protect the interests of the private respondent and her children and prevent the dissipation of the conjugal assets.

The twin requirements of a valid injunction are the existence of a right and its actual or threatened violation.  5Regardless of the outcome of the appeal, it cannot be denied that as the petitioner's legitimate wife (and the complainant and injured spouse in the action for legal separation), the private respondent has a right to a share (if not the whole) of the conjugal estate. There is also, in our view, enough evidence to raise the apprehension that entrusting said estate to the petitioner may result in its improvident disposition to the detriment of his wife and children. We agree that inasmuch as the trial court had earlier declared the forfeiture of the petitioner's share in the conjugal properties, it would be prudent not to allow him in the meantime to participate in its management.

Let it be stressed that the injunction has not permanently installed the respondent wife as the administrator of the whole mass of conjugal assets. It has merely allowed her to continue administering the properties in the meantime without interference from the petitioner, pending the express designation of the administrator in accordance with Article 61 of the Family Code.

WHEREFORE, the petition is DENIED for lack of merit. It is so ordered.

EN BANC

G.R. No. L-996   October 13, 1902

LUIS R. YANGCO,Petitioner, vs. WILLIAM J. ROHDE, judge of the Court of First Instance of Manila,Respondent.

Francisco Ortigas, for petitioner.Fred. G. Waite, for respondent.

ARELLANO, C.J.: chanrobles virtual law library

The petitioner, Luis R. Yangco, filed in this court a petition for a writ of prohibition, alleging that before Judge William J. Rohde, of the Court of First Instance of the city of Manila, a complaint had been filed by Victorina Obin against the petitioner praying that she be declared the lawful wife of the said Yangco, and that she be granted a divorce, an allowance for alimony, and attorney's fees during the pendency of the suit; that the demurrer filed by the petitioner was overruled by the said judge, said ruling being in part as follows: "I am of the opinion that the marriage alleged in the complaint is valid under the laws in force, although the question is not clear nor without doubt. The facts alleged in the complaint compel me to resolve the doubt in favor of the plaintiff;" and that the petitioner, in answer to the complaint, denied the principal allegation of fact therein, to wit, the mutual agreement to be husband and wife alleged by the plaintiff to have been entered into before witnesses; that while the case was in this condition the plaintiff filed a motion for a monthly allowance as alimony, costs, and attorney's fees; that on the 22nd of July last the said judge ordered the petitioner to pay the plaintiff, in advance, a monthly allowance of 250 Mexican pesos from and after the 11th of March last past, and to pay on the 1st day of August following all accrued allowances, in addition to the allowance for the said month, amounting to the sum of 1,500 pesos; that the plaintiff in the said action owns no property, and the judge not having required from her any security, it is certain that the petitioner, defendant in the said action below, should judgment be rendered in his favor, would be unable to recover such sums as the judge might compel him to disburse; that against the ruling of the court he had no right of appeal or any plain, speedy, or adequate remedy; therefore he prays the court to render judgment declaring the Hon. William J. Rohde, judge of the Court of First Instance of Manila, has acted in excess of his jurisdiction in attempting to oblige petitioner to pay to the said Victorina Obin the said allowance, and to direct that a writ of prohibition issue to the said William J. Rohde prohibiting him from attempting to compel petitioner to pay the said amount.chanrobles virtual law library

Against this petition the attorney for the respondent, William J. Rohde, filed a demurrer and motion to dismiss upon the following grounds: (1) That this court is without jurisdiction over the subject-matter of the action; (2) that the petition does not state facts sufficient to constitute a cause of action. It is to be observed that in the oral argument and brief filed no denial was made, but on the contrary the fact alleged by the petitioner was affirmed in that the ruling on the demurrer in the Court of First Instance the respondent had expressed his opinion that "the question (as to the alleged marriage) is not clear nor free from doubt."chanrobles virtual law library

Nevertheless, he says, "this being so, the said Victorina Obin acquired a right to all conjugal rights, and in particular to the allowance of alimony pendente lite." And upon this supposition he cited articles of the Civil Code as to rights enjoyed by a married woman by virtue of the marriage, and those which she may further exercise by reason of divorce pending litigation and those granted to her finally in case of a favorable judgment.chanrobles virtual law library

The entire theory developed by the demurrer now before us may be expressed in the following terms: The respondents judge had jurisdiction to try the divorce case and its incidents, among others that of alimony; in an interlocutory ruling he held that the alleged matrimony existed, although it appeared to him to be a matter not clear or free from doubt; in another interlocutory order, notwithstanding the fact that the existence of the marriage is not clear or free from doubt, he directed the allowance of alimony pendente lite in favor of the plaintiff; against this interlocutory order no appeal lies on behalf of the alleged husband who is to pay this allowance; this alleged husband must pay it without any guaranty of recovery in the event that the proof should established a contrary condition of affairs to that assumed to be correct, notwithstanding the fact that the question is not clear or free from doubt; and as the judge is not devoid of jurisdiction, and as no appeal lies against an interlocutory order, that such an opinion, such an interlocutory order so rendered,

although erroneous and causing irreparable damage, can not be reviewed by any other court during the course of the trial.chanrobles virtual law library

Such a theory was not possible in these Islands under its former Law of Civil Procedure, nor is it possible now under the present Code of Civil Procedure. Under article 1591 of the old Code any person believing himself entitled to that provisional alimony or support was required to file with the complaint documents proving conclusively the title by virtue of which the same was sued for. If the title was based upon a right created by law, it was necessary to present the documents establishing the bond of relationship between the plaintiff and defendant or the circumstances which gave a right to the alimony, such evidence to be completed by the testimony of witnesses if necessary. The judge, under article 1592, could not admit the complaint unless the documents referred to in the preceding article were submitted. It is evident from this that under the provisions of the law then in force a suit for alimony could not prosper upon the mere opinion of the judge expressed, not in a final judgment causing status, but in an interlocutory order which has no other purpose than to facilitate the continuance of the trial. This, apart from the fact that under the former procedural law ever interlocutory order not merely of practice was appealable, and consequently the case of one finding himself prejudiced by an order capable of causing him irreparable damage, such as that of paying an allowance without security or possibility of recovery, could never arise under that system of legislation.chanrobles virtual law library

The necessity of founding the action for support or alimony on a title, and a title supported by documentary evidence, is a consequence of the precepts of article 143 of the Civil Code cited by the respondent judge himself. In this article the right to support is granted (1) to spousesinter se; (2) to legitimate descendants and ascendants inter se; (3) to parents and certain legitimated and acknowledged natural children; (4) to other illegitimate children, and (5) to brothers and sisters. In all these cases in is a civil status or a juridical relation which is the basis of the action for support - the civil status of marriage or that of relationship.chanrobles virtual law library

In the present case the action for the support or alimony is brought by a woman who alleges that she is a wife; therefore it is necessary for her to prove possession of the civil status of a spouse - that is, a marriage, without which one has no right to the title to husband or wife. Marriages celebrated before the adoption of the Civil Code must be proven by the means established by the former laws (art. 53). "Marriages celebrated before the operation of the Code," says Q. Mucius Scaevola, "must be proven by the canonical certificate." (Vol. 2, p. 137.) "Before the Council of Trent," says Manresa, "no absolute provision of law required the parish priests to make entries in their books with regard to the birth, marriage, or death of their parishioners ... . The council required the parish priests to open books in which to record baptisms, marriages, and deaths ... The State, the attention of which was called for the first time to the importance of the records established by the provisions of the council, gave evidence of its interest by issuing the royal order of March 21, 1794, according to which the prelates of the Kingdom were directed to require the evidence referred to be kept exclusively in the churches." (Commentaries, vol. 1, p. 262.)chanrobles virtual law library

This evidence being lacking, and the civil status of marriage being in litigation, it is evident that nothing can be taken for granted upon the point in issue. There is no law or reason which authorizes the granting of alimony to a person who claims to be a spouse in the same manner as to a person who conclusively establishes by legal proof that he or she is such spouse, and sues for divorce or separation. In this case the legal evidence raises a presumption of law; in the former there is no presumption, there is nothing but a mere allegation - a fact in issue - and a simple fact in issue must not be confounded with an established right recognized by a final judgment or based upon a legal presumption. The civil status of marriage being denied, and this civil status, from which the right to support is derived, being issue, it is difficult to see how any effect can be given to such a claim until an authoritative declaration has been made as to the existence of the cause. It is evident that there is of necessity a substantial difference between the capacity of a person after the rendition of a final judgment in which that person is declared to be in possession of the status of marriage and his capacity prior to such time when nothing exists other than his suit or claim to be declared in possession of such status of marriage. Any other view would render useless all the legal effects which flow from the authority ofres adjudicata.chanrobles virtual law library

Nor can such a theory be sustained under the Code of Civil Procedure now in force. It is true that an interlocutory order such as that rendered by the respondent judge in the present case is not appealable during the course of the trial, but only after a final judgment has been rendered therein; but it is none the less true that it can not be the intention of the law, when prohibiting an appeal against interlocutory orders, to give executory force to all kinds of interlocutory orders which the judge may see fit to make in the course of a trial, and still less when the effect would be to cause irreparable damage, such as that alleged by the petitioner in the present case, by reason of the insolvency of the person in whose favor the granting of alimony has been ordered, and which allegation has not been objected to or denied by the respondent. It is indeed a wise rule of procedure which refuses to permit the interruption of a trial by means of incidental appeals; but, if the judge incidentally in the course of a trial proceeds without or in excess of his jurisdiction, this rule which prohibits an appeal does not leave the party aggrieved without remedy. The same Code of Civil Procedure establishes several means by which such excess may be prevented.chanrobles virtual law library

In this case the remedy of prohibition is invoked. (Art. 516 in relation with 226.) This remedy must be based upon a lack of jurisdiction or an excess in the exercise of jurisdiction in order that the judge may be prohibited from continuing the proceedings. This remedy having been established by the Code of Civil Procedure now in force, it is not allowable to apply the theories and principles concerning the lack of jurisdiction or an excess in its exercise which prevailed in the law of these Islands prior to the promulgation of that Code. We must of necessity apply the theories and principles which prevail in the law which has established the remedy, or the authorities which, in the American law, establish the doctrine upon the subject, and more especially the views prevailing in the State of California, whose Code of Procedure is strictly in accord with the Code in these Islands as to the remedy in question, with respect to which it may be said that the California Code is its true legal precedent.chanrobles virtual law library

To this end and as an illustration of the case as to the propriety of the remedy by prohibition, we may cite a decision of the supreme court of California of July 9, 1890 (Havemeyer & Co., petitioners, vs. the Superior Court, Judge Wallace, respondent.)chanrobles virtual law library

This was a case of quo warranto brought by the attorney-general of the State against a California corporation, the American Sugar Refinery Company, for the cancellation of its charter, and in which case judgment was rendered on the 8th of January, 1890; an incident having arisen as to the appointment of a receiver to take charge of the property of the company pending the taking of an appeal or to proceed to distribute the same according to law in case an appeal should not be taken, inasmuch as the corporation had been dissolved and its corporate rights forfeited, the judge made an order appointing a receiver. The receiver attempted to take possession of the sugar refinery, which he found in the possession of Messrs. Havemeyer & Co, who claimed to have purchased it in the month of March, 1889, and asserted that since that time they had been in full and complete possession as absolute owners in their own exclusive right. After several other incidental proceedings the judge made an order directing the sheriff to put the receiver in possession of the locus in quo. Havemeyer & Co. then applied to the supreme court for a writ of prohibition, which was issued. "The question now remains," says the court in its decision, "whether the superior court had jurisdiction to make an order appointing the receiver and ordering him to take from the possession of the petitioners certain property, the petitioners not having been a party to the quo warranto proceedings and alleging a right of their own to the said property."chanrobles virtual law library

In disposing of this question the court holds that the judge was without jurisdiction to make this order, and continues: "We now come to the question as to the remedy. Prohibition arrests the proceedings of an inferior judicial tribunal or officer when such proceedings are without or in excess of the jurisdiction of such tribunal or officer, and the writ issues in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of the law. We have shown that the superior court in appointing a receiver exceeded its jurisdiction, and there is no question that the petitioners are seriously injured by the enforcement of the order. If then they have no plain, speedy and adequate remedy in the ordinary course of law, they are clearly entitled to the benefit of the writ of prohibition to arrest the proceedings under the void order." The court, to fortify its decision, takes up and discusses various objections, such as the following: (1) That the petitioners might have bowed to the authority of the receiver, giving him possession, and then obtained leave from the court to sue him in ejectment; (2) that the order appointing the receiver was appealable, and that, therefore,

the remedy for prohibition would not lie; (3) that before availing themselves of this remedy petitioners should show that an objection to the order in question had been overruled. With respect to the first point the court says: "It is true petitioners might have done this, but the remedy would have been neither speedy nor adequate. They had the right not merely to get their property back after along and expensive litigation - they had a right to keep it. The wrong with which they were threatened when they applied for the writ and when the writ issued was the deprivation of the possession and the use of their property. To give the property up in the hope of being allowed by the superior court to sue for it and to recover it after years of litigation was neither an adequate nor speedy remedy. It would be as reasonable to say that an injunction should never issue to restrain a threatened injury because the injured party may always have his action for damages." As to the second point the court states: "There must not only be a right of appeal but the appeal must furnish an adequate remedy in order to prevent the issuance of the writ. A number of cases have been decided in this court in which writs of prohibition have been refused because there was a right of appeal, but in all of those cases the appeal afforded a complete and adequate remedy for the threatened excess of jurisdiction."chanrobles virtual law library

With respect to the third point the court says that "the following propositions applicable to the case are fully supported by the decision in the case of the Mayor of London vs. Cox, L.R., H.L., 278-280: (1) If a want of jurisdiction is apparent on the face of the proceedings in the lower court, no plea or preliminary objection is necessary before suing out the writ of prohibition. (2) If the proceeding in the lower court is not on its face without the jurisdiction of such court, but is so in fact by reason of the existence of some matter not disclosed, such matter ought to be averred in some proper form in order to make the want of jurisdiction appear. (3) But this is not essential to the jurisdiction of the superior court to grant prohibition. It is only laches which may or may not be excused, according to circumstances.

Accordingly, we find that frequently a failure to plead in the lower court was excused for the reason that it appeared that the plea would have been rejected if made.

By judgment of the 12th of December, 1891, the same supreme court in a similar proceeding against the superior court of San Francisco, Judge Wallace used the following language:

Prohibition lies in all cases where there have been proceedings "without or in excess" of jurisdiction, and there "is not a plain, speedy, and adequate remedy in the ordinary course of law." Jurisdiction is usually defined as "the power to hear and determine;" but, of course, it is difficult to express in abstract terms a statement of the distinction between error in exercising jurisdiction and jurisdiction itself that can be readily applied to all cases as they may arise. The law endeavors to fix definitely everything that can in its nature be so fixed, so as to leave as little as possible to the judgment or caprice of those who administer it. But as many future events can not, in the nature of things, be foreseen and provided for, it follows necessarily that much must be left to the discretion of courts and other tribunals.

This doctrine was applied to the procedure of the judge who had taken action upon a void information presented by a grand jury which by reason of its defective organization was not regarded as a legally existing body, and the court decided "that the jury not being a legal body and the so-called indictment being void, the court below was without jurisdiction to try the accused upon such an indictment, hence the attempted action of the court was without and in excess of its jurisdiction." As to whether the petitioner had any other prompt, speedy, and adequate remedy in the ordinary course of law, the court said:

If there be such remedy, it must be by appeal. But it would be a difficult proposition to maintain that a defendant in a criminal case, forced through all the stages of a trial for felony without any indictment against him, or, which is the same thing in effect, upon a void indictment, would have a plain, speedy, and adequate remedy, because, after conviction and judgment, and perhaps after suffering the ignominy of imprisonment in the state prison, he could have the illegal proceeding reversed on appeal. ... We are of opinion, therefore, that there is no jurisdiction in the respondent to proceed with the trial of petitioner; that the latter has no "plain, speedy, and adequate remedy in the ordinary course of law," and that prohibition is the proper remedy.

Mr. Justice Garmette added:

The case of Quimbo Appo vs. People, 20 N.Y., 542, received an exhaustive consideration from the court of that State, and, after referring to many authorities upon the question as to when the writ of prohibition should issue, it said: "These cases prove that the writ lies to prevent the exercise of any unauthorized power in a cause or proceeding of which the subordinate tribunal has jurisdiction, no less than when the entire cause is without the jurisdiction." And again: "This shows that the writ was never governed by any narrow, technical rules, but was resorted to as a convenient mode of exercising a wholesome control over inferior tribunals. The scope of this remedy ought not, I think, to be abridged, as it is far better to prevent the exercise of unauthorized power that to be driven to the necessity of correcting the error after it is committed."

In its decision of December 8, 1890, the same supreme court in a proceeding similar to that now before us, instituted, by J.M. McDowell against Aaron Bell, judge of the superior court of Shasta County, upon the ground that this judge in an incidental proceeding similar to that which now occupies our attention directed that certain property claimed by a third person be subjected to the satisfaction of a judgment rendered against the grantee, held as follows:

In this the respondent exceeded his jurisdiction and the jurisdiction of his court. His only power in the premises was to make an order authorizing the judgment creditor to institute an action in the proper court against the parties claiming the property for the recovery of the property and the subjection of the same to the satisfaction of the debt, and forbidding a transfer of the property until such action could be commenced and prosecuted to judgment.

This indicates what is meant by an act without or in excess of jurisdiction in accordance with the principles upon which article 226 of the present Code of Civil Procedure is based.chanrobles virtual law library

The court below had jurisdiction to try the divorce suit, but he was without jurisdiction to grant alimony when the right to claim alimony had not accrued in accordance with the provisions of the Civil Code. This Code only grants the rights to alimony to a wife. This status not appearing by a final judgment, the court is without jurisdiction to make any order in the matter. Therefore mandamus is the proper remedy upon the facts related.chanrobles virtual law library

It is not necessary to decide at this time if an exception could be made with respect to a case in which the fact of the marriage is admitted of record by the defendant. In the case before us this fact was denied. The motion and demurrer are overruled and the defendant is authorized to answer the complaint within twenty days from this date.chanrobles virtual law library

Torres, Willard, and Ladd, JJ., concur.Smith and Mapa, JJ., did not sit in this case.

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