ALFREDO JAVIER, PETITIONER VS. HON. ANTONIO G. LUCERO, JUDGE OF THE COURT OF FIRST INSTANCE OF CAVITE; SALUD R. ARCA AND ALFREDO JAVIER, JR., RESPONDENTS.

In an action for alimony (Civil Case No. 5150, Cavite), the
respondent judge, after hearing the parties and their evidence, ordered
Alfredo Javier to give a monthly allowance of P60 to his wife Salud R.
Area and their son Alfredo Javier Jr.

On April 14, 1953 the husband filed a notice of appeal, and on May
6, 1953, he submitted the appeal bond and the record on appeal.
Meanwhile the wife and the son presented on April 30, 1953 a motion for
“support pendente lite” “even pending the final determination
of the case on appeal”. Whereupon on May 8, 1953, the judge directed
Alfredo Javier to pay the monthly pensions notwithstanding the pendency
of his appeal.

Here comes Alfredo Javier with a petition for certiorari challenging such directive and arguing, in his own words:

“1. The status of Salud R. Area as wife of the petitioner is being contested;

“2. Alfredo Javier Jr. is over 21 years on March 31, 1953 and no longer entitled to be supported; and

“3.
Even granting that Alfredo Javier, Jr. is entitled to support even if
over 21 years of age to complete his education or training for some
profession, trade or vocation, the support could not be paid because
the decision is vague or silent on that point.”

The facts, as found in the action for support, are these:

“On November 19, 1937, plaintiff Salud R. Area and
defendant Alfredo Javier had their marriage solemnized by Judge Mariano
Nable of the Municipal Court of Manila. At the time of their marriage,
they had already begotten a son named Alfredo Javier Junior who was
born on December 2, 1931. Sometime in 1938, defendant Alfredo Javier
left for the United States on board a ship of the United States Navy,
for it appears that he had joined the United States Navy since 1927,
such that at the time of his marriage with plaintiff Salud R. Area,
defendant Alfredo Javier was already an enlisted man in the United
States Navy. Because of defendant Alfredo Javier’s departure for the
United States in 1938. his wife Salud R. Area, who is from Tanza,
Cavite, chose to live with defendant’s parents at Naic, Cavite. But for
certain incompatibility of character (frictions having occurred between
plaintiff Salud R. Area and defendant’s folks) plaintiff Salud R. Area
had found it necessary to leave defendant’s parents’ abode and transfer
her residence to Tanza, Cavite—her native place. Since then the
relation between plaintiff Salud R. Area and defendant Alfredo Javier
became strained such that on August 13, 1940 defendant Alfredo Javier
brought an action for divorce against plaintiff Salud R. Area before
the Circuit Court of Mobile County, State of Alabama, USA, docketed as
Civil Case No. 14313 of that Court and marked as Exhibit 2(c)
in this case. Having received a copy of the complaint for divorce on
September 23, 1940, plaintiff Salud R. Area—answering the complaint—
alleged in her answer that she received copy of the complaint on
September 23, 1940 although she was directed to file her answer thereto
on or before September 13, 1940. In that answer she filed, plaintiff
Salud R. Area averred among other things that defendant Alfredo Javier
was not a resident of Mobile County, State of Alabama, for the period
of twelve months preceding the institution of the complaint, but that
he was a resident of Naic, Cavite, Philippines. Another averment of
interest, which is essential to relate here, is that under paragraph 5
of her answer to the complaint for divorce, Salud R. Area alleged that
it wa3 not true that the cause of their separation was desertion on her
part but that if the defendant Alfredo Javier was in the United States
at that time and she was not with him then it was because he was in
active duty as an enlisted man of the United States Navy, as a
consequence of which he had to leave for the United States without her.
She further alleged that since his departure from the Philippines for
the United States, he had always supported her and her co-plaintiff
Alfredo Javier Junior through allotments made by the Navy Department of
the United States Government. She denied, furthermore, the allegation
that she had abandoned defendant’s home at Naic, Cavite, and their
separation was due to physical impossibility for they were separated by
about 10,000 miles from each other. At this juncture, under the Old
Civil Code, the wife is not bound to live with her husband if the
latter has gone to ultra-marine colonies. Plaintiff Salud R. Area, in
her answer to the complaint for divorce by defendant Alfredo Javier,
prayed that the complaint for divorce be dismissed. However,
notwithstanding Salud R. Area’s averments in her answer, contesting the
jurisdiction of the Circuit Court of Mobile County, State of Alabama,
to take cognizance of the divorce proceeding filed by defendant Alfredo
Javier, as shown by her answer marked1 Exhibit 2(d),
nevertheless the Circuit Court of Mobile County rendered judgment
decreeing dissolution of the marriage of Salud R. Area and Alfredo
Javier, and granting the latter a decree of divorce dated April 9,
1941, a certified copy of which is marked Exhibit 2(f).
Thereupon, the evidence discloses that some time in 1946 defendant
Alfredo Javier returned to the Philippines but went back to the United
States.

In July, 1941—that is after securing a divorce from
plaintiff Salud R. Area on April 9, 1941—defendant Alfredo Javier
married Thelma Francis, an American citizen, and bought a house and lot
at 248 Brooklyn, New York City. In 1949, Thelma Francis, defendant’s
American wife, obtained a divorce from him for reasons not disclosed by
the evidence, and, later on, having retired from the United States
Navy, defendant Alfredo Javier returned to the Philippines, arriving
here on February 13, 1950. After his arrival in the Philippines, armed
with two decrees of divorce—one against his first wife Salud R. Area
and the other against him by his second wife Thelma Francis—issued by
the Circuit Court of Mobile County, State of Albania, USA, defendant
Alfredo Javier married Maria Odvina before Judge Natividad Almeda-Lopez
of the Municipal Court of Manila on April 19, 1950, marked Exhibit 2(b).

At
the instance of plaintiff Salud R. Area an information for bigamy was
filed by the City Fiscal of Manila on July 25, 1950 against defendant
Alfredo Javier with the Court of First Instance of Manila, docketed as
Criminal Case No. 13310 and marked Exhibit 2(a). However,
defendant Alfredo Javier was acquitted of the charge of bigamy in a
decision rendered by the Court of First Instance of Manila through
Judge Alejandro J. Panlilio, dated August 10, 1951, predicated on the
proposition that the marriage of defendant Alfredo Javier with Maria
Odvina was made in all good faith and in the honest belief that his1
marriage with plaintiff Salud R. Area had been legally dissolved by the
decree of divorce obtained by him from the Circuit Court of Mobile
County, Stale of Alabama, USA, which had the legal effect of dissolving
the marital ties between defendant Alfredo Javier and plaintiff Salud
R. Area. At this juncture, again, it is this Court’s opinion that
defendant Alfredo Javier’s acquittal in that Criminal Case No. 13310 of
the Court of First Instance of Manila by Judge Panlilio was due to the
fact that the accused had no criminal intent in contracting” a second
or subsequent marriage while his first marriage was still subsisting.”

Turning now to the petition for certiorari, we perceive that, as to
its first ground the respondent judge declared in his decision that
Alfredo Javier and Salud Arca were married on November 19, 1937 when
they had already a natural son named Alfredo Javier Junior, born
December 2, 1931, and that, notwithstanding a decree of divorce which
the husband Alfredo obtained in the United States in 1941, their
marriage still subsists. Such being the situation, the principle in
Francisco vs. Zandueta, 61 Phil., 752 on which petitioner entirely
relies is not controlling, inasmuch as the existence of the married
relation and the paternity had been established at least prima facie (cf. Sanchez vs. Zulueta, 68 Phil., 112.) Besides, as respondents point out, this is strictly not alimony pendente lite, under Rule 63, but execution of judgment pending appeal, under Rule 39.^[1]

In connection with the second ground of the petition, respondents
observe that under the new Civil Code, article 290 support also
includes the education of the person to be supported “until he complete
his education or training for some profession, trade or vocation even
beyond the age of majority” and on the basis of this article support
was granted to Alfredo Javier Junior. Said the Court, “while it is true
that plaintiff Alfredo Javier Junior, who was born on December 2, 1931,
has reached the age of majority on December 2, 1952, yet, under the
last part of article 290 of the new Civil Code, support may be given
him even beyond the age of majority in order to enable him to complete
his education, for some trade or profession.”

Now then, was the order issued in excess of jurisdiction or with
grave abuse of discretion? The court undoubtedly had jurisdiction,
inasmuch as it was issued before the record on appeal was submitted.
(Sumulong vs. Imperial, 51 Phil., 251; Syquia vs. Concepcion, 60 Phil., 186). Did the judge abuse his discretion?

Unquestionably, Alfredo Javier Jr. is the son of petitioner Alfredo
Javier, and if financial assistance is to be rendered only at the
termination of the appeal his education, or the completion thereof,
would be unduly delayed. That is good reason for immediate execution.
Petitioner claims that according to the records Alfredo Javier Jr. “is
no longer studying”. Yet probably he stopped going to school due to
lack of means, since the petitioner himself admits that his son is just
a pre-law graduate.

But the real grievance of petitioner is contained in the last
portion of his pleading, which says, “What Alfredo Javier now tries to
avoid is to support a woman who has desperately tried to put him in
jail, when she accused him of bigamy.” Such disgust is easily
understandable. But compliance with legal and contractual duties is not
always pleasant.

Under the New Civil Code articles 303 and 921 the wife forfeits her
husband’s support after “she has accused (him) of a crime for which the
law prescribes imprisonment for six years or more, and the accusation
has been found to be false.” If bigamy is such a crime, and if her
accusation had been found to be false, Salud Arca would lose her
privilege. But the accusation was not “found to be false”. Admittedly,
he married a third time without the first marriage having been
dissolved; but he was cleared of the bigamy charge for lack of criminal
intent, inasmuch as he believed his divorce obtained in the U. S., had
already ended his first marriage to Salud R. Area. Such acquittal is no
different from an acquittal on reasonable doubt, which in our opinion,
and in the opinion of a member of the Code Commission that framed the
New Civil Code, would not be ground to forfeit her right to support.^[2]

Of course, the question whether Alfredo Javier’s prosecution for
bigamy and subsequent acquittal extinguished his obligation to maintain
his complaining spouse will definitely be decided when the main case
(No. 5150) is reviewed on appeal. Other aspects of the issue could then
undoubtedly be the subject of research and elucidation. Nevertheless
we briefly explain our first impressions or provisional conclusion in
the task of examining the alleged misuse by respondent judge of his
prerogatives. It is markworthy that the son has not forfeited his right
to support.

As the issues are presently framed, petitioner has failed to sustain
the burden of demonstrating the judge’s clear error or grievous mistake
in ordering execution of his judgment pending appeal. Costs against
petitioner.

Paras, C. J., Pablo, Montemayor, Reyes, Jugo, Bautista Angelo, Labrador, Concepcion and Diokno, JJ., concur.

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^[1] (Moran, 1952 Ed., Vol. 2, p. 117).

^[2] Capistrano, Civil Code Vol. II p. 419, 423.