CLARA SALAZAR, ESTER ORTIZANO, ET AL., PETITIONERS AND APPELLANTS, VS. FILEMON Q. ORTIZANO, RESPONDENT AND APPELLEE.

In November 1926 Filemon Ortizano and Clara Salazar
got married before the Justice of the Peace of the municipality of Butuan, ^[1]
province of Agusan. They were thereafter blessed with five children,
namely, Ester, Godofredo, Marianito, Filemon and Salvatore.

On
November 1, 1960 Clara Salazar together with her children Ester
Ortizano, Godofredo Ortizano and Marianito Ortizano, and one Lut
Racaza, as petitioners, sued Filemon Ortizano in the Court of First
Instance of Agusan, for support; for custody of the minor children
Filemon and Salvatore, both surnamed Ortizano—then 13 and 10
years old, respectively; for separation or partition of conjugal
properties in accordance with an extra-judicial agreement (Annex A);
and for damages. Petitioners also prayed for preliminary injunction to
prevent the respondent from encumbering or otherwise alienating
conjugal properties. They alleged that respondent Filemon Ortizano
maltreated Clara Salazar, abandoned her and lives in their conjugal
abode with another woman with whom he has several children; that
respondent refuses to surrender custody over the minor children,
Salvatore and Filemon, inspite of repeated demands; that Clara Salazar
repeatedly demanded support from respondent but the latter has failed
and refuses to give the same, except for meager amounts; that on August
1, 1957 Clara Salazar and respondent executed a “Mutual Agreement”
which reads:

“That
I Filemon Ortizano of legal age, married, Filipino citizen, resident
and with postal address in the City of Butuan, Philippines for purposes
of this instrument known as Party of the First Part and Clara Salazar
Ortizano, of legal age, married, Filipino citizen, resident and with
postal address in the City of Butuan, Philippines, for purposes of this
instrument known as Party of the Second Part both entered through a
Civil Marriage in November, 1926 performed by the Justice of the Peace
of the defunct Butuan Municipality, Province of Agusan and on this date
voluntarily agreed to separate (severe carnal connection from each
other), do hereby by these presents, pledge and agree to abide by the
following:

Party of the First Part

“The Party of the First Part consents
to the proposition that:

“(a) Filemon Ortizano, shall no longer
live with the party of the second part.

“(b) That the Party of the First Part
hereby recognizes the absolute and complete
freedom of the Party of the Second Part to
do all tilings and practice in her own will,
viz; to marry or live with another woman
thereby binding and pledging himself not to
do any act of revenge or retaliation against
the party of the Second Part in the event
she (Party of the Second Part) takes a man
for a husband.

“(c)
The party of the First Part agrees to divide into seven (7) equal parts
for him, the party of the second part, and their children namely:
Ester, Godofredo, Marianito, Filemon Jr. and Salvatore, all surnamed
Ortizano, existing conjugal properties in their names and any property
or monies due the party of the First Part, acquired or earned during
the period prior to their separation.

Party of the Second Part

“The Party of the Second Part, hereby
recognizes the absolute and complete freedom
of the party of the first part to do all
things and practices in his own will viz: to
marry or live with another man, thereby binding and pledging himself not to do any act
of revenge or retaliation against the party
of the First Part in the event he (party of
the First Part) takes a woman for a wife.
Clara Salazar Ortizano hereby known as party of the Second Part agrees to all terms
set forth in this agreement.”

that respondent did not comply with the provisions of
the above-quoted agreement and as a result Clara Salazar suffered damages, moral and actual, in a sum not
less than P10,000.00, and that there is imperative need
to enjoin respondent from encumbering and/or alienating
conjugal properties.

After
filing his answer and during the hearing on the issuance of the writ of
preliminary injunction, respondent orally moved for the dismissal of
the petition on the basis of his affirmative and/or special defenses
let up in the answer. Acting on said motion, the court ruled, in its
order of June 30, 1961, that the “action is predicated upon a ‘Mutual
Agreement’ of the spouses Filemon Ortizano and Clara Salazar * * *
based upon an illicit and immoral consideration, the real purpose
behind it, being to allow the husband Filemon Ortizano to marry or live
with another woman, and the wife Clara Salazar Ortizano, with another
man.” It dismissed the amended petition for lack of cause of action.
Hence, petitioners’ appeal direct to this Court on a question purely of
law.

The sole issue is whether or not the amended
petition states a cause of action. In this regard, the order appealed
from being premised on a motion to dismiss, only the allegations in the
amended petition need be considered. And in order to test in this
manner whether or not a cause of action is made out in the petition,
the motion must admit, if only hypothetically, the truth of the
allegation.^[2]

The court a quo sustained the motion to dismiss on
the theory that the action entirely rests on the “Mutual
Agreement” (Annex A) executed by Clara Salazar and respondent for an illicit or immoral consideration. As can
be seen from the allegations in the amended petition,
petitioners seek (1) separation of property in accordance
with Annex A, (2) support, and (3) custody of the minor
children, Salvatore and Filemon. Annex “A”‘s illegality
could at most affect only the cause of action for separation of property, leaving unimpaired the rest of the
causes of action which are predicated on allegations different and distinct from Annex “A”. Said allegations
are: abandonment by respondent of his wife, Clara Salazar (paragraph 4); respondent’s failure to support her
despite repeated demands (paragraph 5); care and custody of their minor children, Salvatore and Filemon, by
respondent under the same roof with his concubine; and,
respondent’s non-compliance with Clara Salazar’s demands
for their custody (paragraph 7).

The second paragraph of Article 191 in relation to
Article 178, No. 3 of the Civil Code authorizes separation of property in case of abandonment by the husband.
Paragraph (1) of Article 291 of the same Code obliges
the husband to support his wife. And the wife may ask
for separate maintenance where the husband has committed
repeated acts of conjugal infidelity,^[3]
a much lesser marital offense than maintaining a concubine in the
conjugal home, as alleged in this case. Furthermore,the allegation in
paragraph 7 of the amended petition that the minor children Filemon and
Salvatore live with respondent’s concubine would argue in favor of
custody by their mother pursuant to Article 363 of the Civil Code, to
the effect that the children’s welfare is the paramount consideration
in all questions on their custody.^[4]

Anent the lower court’s intimation of misjoinder of
parties in the amended petition, suffice it to state that
such a defect, if any, is not a ground for dismissal of
the action. ^[5]

Wherefore, the order appealed from is hereby reversed and this case remanded to the court of origin for
further proceedings. No costs. So ordered.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Zaldivar, and Sanchez, JJ., concur.

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^[1] Now Butuan City.

^[2] Alquigue vs. de Leon, L-15059, March 30, 1963.

^[3] Dadivas de Villanueva vs. Vlllanueva, 54 Phil. 92.

^[4] Cortes vs. Castillo, 41 Phil. 466.

^[5] Section 11, Rule 3, Rules of Court; Montes vs. Castro, L-12372, April 30, 1959.