G.R. Nos. L-23482, L-23767 and L-24259. August 30, 1968
ALFONSO LACSON, PETITIONER, VS. CARMEN SAN JOSE-LACSON AND THE COURT OF APPEALS, RESPONDENTS. CARMEN SAN JOSE-LACSON, PLAINTIFF-APPELLANT, VS. ALFONSO LACSON, DEFENDANT-APPELLEE…
CASTRO, J.:
These three cases (G. R. Nos. L-23482, L-23767 and L-24259)
involving the same parties pose a common fundamental issue the resolution of
which will necessarily and inescapably resolve all the other issues. Thus their joinder in this decision.
The antecedent facts are not disputed.
Alfonso Lacson (hereinafter referred to as the petitioner spouse)
and Carmen San Jose-Lacson (hereinafter referred to as the respondent spouse)
were married on February 14, 1953. To them were born four children, all alive.
On January 8, 1963
the respondent spouse left the conjugal home in Santa Clara Subdivision, Bacolod
City, and commenced to reside in Manila. She
filed on March 12, 1963 a complaint
docketed as civil case E-00030 in the Juvenile and Domestic Relations Court of Manila (hereinafter
referred to as the JDRC) for custody of
all their children as well as support for them, and herself.
However,
the spouses, thru the assistance of their respective attorneys, succeeded in
reaching an amicable settlement respecting custody of the children, support,
and separation of property. On April
27, 1963 they filed a joint petition dated April 21, 1963, docketed as special proceeding 6978 of the Court
of First Instance of Negros Occidental
(hereinafter referred to as the CFI).
The
important and pertinent portions of the petition, embodying their amicable settlement, read as
follows:
“3. Petitioners have
separated last January 9, 1963 when petitioner Carmen San Jose-Lacson left
their conjugal home at the Santa Clara Subdivision, Bacolod
City, did not return, and decided
to reside in Manila.
“4. Petitioners
nave mutually agreed upon the dissolution of their conjugal partnership subject
to judicial approval as required by Article 191 of the Civil-Code of the
Philippines – the particular terms and conditions of their mutual agreement
being as follows:
”(a) There will be
separation of property – petitioner Carmen San Jose-Lacson hereby
waiving any and all claims for a share in property that may be held by
petitioner Alfonso Lacson since they have acquired no property of any consequence.
“(b) Hereafter, each of them shall own, dispose of, possess,
administer and enjoy such separate estate as they may acquire without the
consent of the other and all earnings from any profession, business or industry
as may be derived by each petitioner
shall belong to that petitioner exclusively.
“(c) The custody of the two elder children named Enrique and Maria
Teresa shall be awarded to petitioner Alfonso Lacson and the custody of the
younger children named Gerrard and Eamon shall be awarded to petitioner Carmen
San Jose-Lacson.
“(d) Petitioner Alfonso Lacson shall pay petitioner Carmen San
Jose-Lacson a monthly allowance of P300.00
for the support of the children in her custody.
“(e) Each petitioner shall have reciprocal rights of visitation of
the children in the custody of the other at their respective residences and,
during the summer months, the two children in the custody of each petitioner
shall be given to the other except that, for this year’s summer months, all
four children shall be delivered to and remain with petitioner Carmen San
Jose-Lacson until June 15, 1963 – on which date, she shall return the two elder children Enrique and Maria Teresa to petitioner
Alfonso Lacson – this judgment of course being subject to enforcement by
execution writ and contempt.
“5. Petitioners have no creditors.
“WHEREFORE, they
respectfully pray that notice of this petition be given to creditors and third
parties pursuant to Article 191 of the Civil Code of the Philippines and
thereafter that the Court enter its judicial approval of the foregoing
agreement for the dissolution of their conjugal partnership and for separation
of property, except that the Court shall immediately approve the terms set
out. In paragraph 4 above and embody the
same in a judgment immediately binding on the parties hereto to the end that
any non-compliance or violation of its terms by one party shall entitle the
other to enforcement by execution
writ and contempt even though the proceedings as to creditors have not been
terminated.”
Finding the foregoing joint petition to be “conformable to law,” the CFI (Judge Jose F. Fernandez,
presiding) issued an order on April 27, 1963, rendering judgment (hereinafter referred to
as the compromise judgment) approving and incorporating in toto their compromise agreement. In compliance with paragraph 4(e) of their
mutual agreement (par. 3[e] of the compromise judgment), the petitioner spouse
delivered all the four children to the respondent spouse and remitted money for
their support.
On May 7, 1963 the
respondent spouse filed in the JDRC a motion wherein she alleged that she
“entered into and signed the . . . Joint Petition as the only means by
which she could have immediate custody of the . . ; minor children who are all
below the age of 7,” and thereafter prayed that she “be considered
relieved of the . . . agreement
pertaining to the custody and visitation of her minor children . . . and that
since all the children are now in her
custody, the said custody in her favor he confirmed pendente lite.” On May
24, 1963 the petitioner spouse opposed the said motion
and moved to dismiss the complaint based, among other things, on the grounds of res judicata and lis
pendens. The JDRC, on May 28, 1963, issued
an order which sustained the petitioner spouse’s
plea of bar by prior judgment and its pendens, and dismissed the case. After the denial of her
motion for reconsideration, the respondent spouse interposed an appeal to the Court of Appeals
(CA-G.R. No. 32608-R) wherein she raised, among others, the issue of validity
or legality of the compromise agreement in connection only with the custody of
their minor children. On October
14, 1964 the Court
of Appeals certified the said appeal to the Supreme Court (G.R. No. L-23767),
since “no hearing on the facts was ever held in the court below – no
evidence, testimonial or documentary, presented – only a question or law pends
resolution in the appeal.”
The respondent spouse
likewise filed a motion dated May 15, 1963 for reconsideration of the compromise judgment dated April 27, 1963
rendered in special proceeding 6978 of the CFI, wherein she also alleged, among others, that she entered into the joint petition as the only means by which she could
have mediate custody of her minor children, and thereafter prayed the CFI to reconsider its judgment
pertaining to the custody and visitation
of her minor children and to relieve her from the said agreement.
The petitioner spouse opposed the said motion and, on June 1, 1963, filed a motion for execution of the compromise judgment and a charge for
contempt. The CFI (Judge Jose R. Querubin, presiding), in its order
dated June 22, 1963, denied the respondent spouse’s motion for reconsideration, granted the petitioner spouse’s motion
for execution, and ordered that upon “failure on the part of Carmen San
Jose-Lacson to deliver the said children [i. e., to return the two older
children Enrique and Maria Teresa in accordance with her agreement with Alfonso
Lacson) to the special sheriff on or before June 29, 1963, she may be held for
contempt pursuant to the provisions of Rule 39 sections 9 and 10, and Rule 64
section 7 of the (old) Rules of Court.” From the aforesaid compromise
judgment dated April 27, 1963
and execution order dated June 22,
1963, the respondent spouse interposed an appeal to the Court of
Appeals (CA.-G.R. No. 32798-R) wherein she, likewise questioned the validity or
legality of her agreement with the petitioner spouse respecting custody of
their children. On February 11, 1965 the Court of Appeals also
certified the said appeal to the Supreme Court (G. R. No. L-24259), since
“no evidence of any kind was introduced before the trial court and . . .
appellant did not specifically ask to be allowed to present evidence on her
behalf.”
The respondent spouse also instituted certiorari proceedings
before the Court of Appeals (CA-G.R. No. 32334-R), now the subject of au appeal
by certiorari to this Court (G. R. No. L-23482). In her petition for certiorari
dated June 27, 1933, she
averred that the CFI (thru Judge Querubin) committed grave abuse of discretion
and acted in excess of jurisdiction in ordering the immediate execution of the compromise judgment in its
order of June 22, 1963,
thus in effect depriving her of the right to appeal. She prayed for (1) the issuance of a writ of
preliminary injunction enjoining the respondents therein and any person acting
under them from enforcing, by contempt proceedings and other means, the writ of
execution issued pursuant to the order of the respondent Judge Querubin dated
June 22, 1963 in special proceeding 6978 of the CFI, (2) the setting aside,
after hearing, of the compromise judgment dated April 27, 1963 and the order
dated June 22, 1963, and (3) the awarding of the custody of Enrique and Maria
Teresa to her, their
mother. As prayed for, the Court of
Appeals issued ex parte a writ of preliminary injunction enjoining the
enforcement of the order dated June 22, 1963 for execution of the compromise
judgment rendered in special
proceeding 6978. The petitioner spouse
filed an urgent motion dated July 5,
1963 for the dissolution of the writ of preliminary injunction ex parte, which urgent motion was denied by the Court of Appeals in its resolution dated July 9, 1963. The petitioner spouse likewise filed his
answer. After hearing, the Court of
Appeals on May 11, 1964 promulgated in said certiorari case (CA-G.R. No.
32384-R) its decision granting the petition for certiorari and declaring
null and void both (a) the compromise judgment dated April 27, 1963 in
so far as it relates to the custody and right of visitation over the two children, Enrique and Teresa, and (b) the
order dated June 22, 1963 for execution of said judgment. The petitioner spouse moved to reconsider,
but his motion for reconsideration was denied by the Court of Appeals in its
resolution dated July 31,
1964. From the decision dated May II, 1964 and the
resolution dated July 31, 1964, the petitioner spouse interposed an appeal to this Court, as abovestated,
and assigned the following errors:
1.
The Court of Appeals erred in annulling thru certiorari the lower court’s order of execution of the compromise
judgment.
2. The
Court of Appeals erred in resolving in the
certiorari case the issue of the legality of the compromise judgment
which is involved in two appeals, instead of the issue of grave abuse of discretion hi ordering its execution.
3. The
Court of Appeals erred in ruling that the compromise agreement upon which the
judgment is based violates article 363
of the Civil Code.
As heretofore adverted,
the aforecited three appeals converge on one focal issue; whether the compromise
agreement entered into by the parties and the judgment of the CFI grounded on
the said agreement, are conformable to law.
We hold that the
compromise agreement and the judgment of the CFI grounded on the said agreement
are valid with respect to the separation of
property of the spouses and the dissolution of the conjugal partnership.
The law allows separation
of property of the spouses and the dissolution of their conjugal partnership
provided judicial sanction is secured beforehand. Thus the new Civil Code provides:
“In the absence of an
express declaration in the marriage settlements, the separation
property between spouses during the
marriage shall not take place save in virtue of a judicial it order.” (Art. 190, emphasis supplied)
“The husband and the wife may agree upon the dissolution of
the conjugal partnership during marriage, subject to judicial approval. All the creditors of the husband and of the
wife, as well as of the conjugal partnership, shall be notified any petition
for judicial approval of the voluntary dissolution of the conjugal partnership,
so that any such creditors may appear at the hearing to safeguard his
interests. Upon approval of the petition
for dissolution of the conjugal partnership, the court shall take such measures
as may protect the creditors and other
third persons.” (Art. 191, par. 4, underscoring supplied)
In the case at bar, the spouses obtained judicial imprimatur of their separation of property and the
dissolution of their conjugal partnership. It does not appear that they have creditors
who will be prejudiced by the said arrangements.
It is likewise undisputed that the couple have teen separated in
fact for at least five years – the wife’s residence being in Manila,
and the husband’s in the conjugal home in Bacolod
City. Therefore, inasmuch as a lengthy separation
has supervened between them, the propriety of severing their financial and
proprietary interests is manifest.
Besides, this Court cannot constrain the spouses to live
together, as
“[It] not within the province of the courts of this country to attempt to compel
one of the spouses to cohabit with, and render conjugal rights to, the
other. * * * At best such an order can be effective for no other purpose than to compel the
spouses to live under the same roof; and the experience of those countries
where the courts of justice have assumed to compel the cohabitation of married
couple shows that the policy of the practice is extremely questionable.”
(Arroyo v. Vasquez de Arroyo, 42 Phil. 54, 60)
However, in so approving
the regime of separation of property
of the spouses and the
dissolution of their conjugal
partnership, tilts Court does not thereby accord recognition to
nor legalize the de facto separation of the spouses, which again in the language of Arroyo v.
Vasquez de Arroyo, supra – is a “state which is abnormal
and fraught with grave danger to all concerned.” We would like to douse the
momentary seething emotions of couples who, at the slightest ruffling of
domestic tranquility – brought about by “mere austerity of temper,
petulance of manners, rudeness of
language, a want of civil attention and accommodation, even occasional sallies
of passion” without more – would be minded to separate from each
other. In this jurisdiction, the husband
and the wife are obliged to live together, observe mutual respect and fidelity,
and render mutual help and support (art. 109, new Civil Code). There is, therefore, virtue in making it as
difficult as possible for married couples – impelled by no better cause than
their whims and caprices – to abandon each other’s company.
“‘* * * For though in particular cases the repugnance of the
law to dissolve the obligations of matrimonial cohabitation may operate with
great severity upon individuals, yet it must be carefully remembered that the
general happiness of the married life is secured by its indissolubility. When people understand that they must live
together, except for a very few
reasons known to the law, they learn to soften by mutual accommodation that
yoke which they know they cannot shake off; they become good husbands and good
wives from the necessity of remaining husbands and wives; for necessity is a
powerful master in teaching the duties which it imposes * * *.’ (Evans vs.
Evans, 1 Hag. Con., 35; 161 Eng.
Reprint, 466, 467.)” (Arroyo vs. Vasquez de Arroyo, Id., pp. 58-59)
We now come to the question of the custody and support of the
children.
It is not disputed
that it was the JDRC which first acquired jurisdiction over the matter of
custody and support, of the children.
The complaint docketed as civil case E-00030 in the JDRC was filed by
the respondent spouse on March 12,
1963, whereas the joint petition of the parties docketed as special
proceedings 6978 in the CFI was
filed on April 27, 1963. However, when the respondent spouse signed the joint petition
on the same matter of custody and support of the children and filed the
same with the CFI of Negros Occidental, she in effect abandoned her action in
the JDRC. The petitioner spouse – who
could have raised the issue of lis pendens in abatement of the case filed in
the CFI, but did not do so – had the right, therefore, to cite the decision of
the CFI and to ask for the dismissal of the action filed by the respondent
spouse in the JDRC, on the grounds of lee judicata and lis pendens. And the acted
correctly and justifiably in dismissing the case for custody and support of the children based on those
grounds. For it is no defense against
the dismissal of the action that the case before the CFI was filed later than
the action before the JDRC, considering
“* * * [That the Rules do not require as a ground for
dismissal of a complaint that there is a prior pending action.
They provide only that there is
a pending action, not a pending prior action.”[1]
We agree with the Court of Appeals, however, that the CFI erred
in depriving the mother, the respondent spouse, of the custody of the two older
children (both then below the age of 7).
The Civil Code
specifically commands in the second sentence of its article 363 that “No
mother-shall be separated from her child under seven years of age, unless the
court finds compelling reasons for such measure,” The rationale of this
new provision was explained by the
Code Commission, thus:
“The general rule is recommended in order to avoid many a tragedy where a mother has seen her
baby torn away from her. No man can
sound the deep sorrows of a mother who is deprived of her child of tender age. The
exception allowed by the rule has to be
for ‘compelling reasons for the good of the child: those cases must indeed be rare, if the mother’s heart is not to be unduly
hurt. If she has erred, as in cases of
adultery, the penalty of imprisonment and the (relative) divorce decree will
ordinarily be sufficient punishment for her. Moreover, her moral
dereliction will not have any effect upon the baby who is as yet unable to
understand the situation.” (Report of the Code Commission, p. 12)
The use of the word shall[2]
in article 363 of the Civil Code, Coupled with the observations made by the
Code Commission in respect to the said
legal provision, underscores its mandatory character. It prohibits in no uncertain terms the
separation of a mother and her child below seven years, unless such
separation is grounded upon compelling reasons as determined by a court.
The order dated April 27,
1963 of’ the CFI, in so far as it awarded custody of the two older children who
were 6 and 5 years old, respectively, to the father, in effect
sought to separate them from their mother.
To that extent therefore, it was null and void because clearly violative
of article 363 of the Civil Code.
Neither does the said
award of custody fall within the exception because the record is bereft of any
compelling reason to support the lower court’s order the wife of her minor
children’s company. True, the stated in
its order dated June 22, 1963, denying the respondent spouse’s motion for
reconsideration of its order dated April 27, 1963, that
“* * *If the parties have
agreed to file a joint petition, it was because they wanted to avoid the
exposure of the bitter truths which serve as succulent morsel for scandal
mongers and idle gossipers and to save their children from embarrassment and
inferiority complex which may inevitably stain their lives. * * * If the parties agreed to submit the
matter of custody of the minor children to
the Court for incorporation in the final judgment, they purposely
suppressed the ‘compelling reasons for such measure’ from appearing in the
public records. This is for the sake and
for the welfare of the minor children.”
But the foregoing statement is at best a mere hint that there
were compelling reasons. The lower
court’s order is eloquently silent on what these compelling reasons are. Needless to state, courts cannot proceed on
mere insinuations; they must be confronted with facts before they can properly
adjudicate.
It might be argued – and correctly – that since five years have
elapsed since the filing of these cases in 1963, the ages of the four children
should now be as follows: Enrique – 11, Maria Teresa – 10, Gerrard – 9,
and Ramon – 5. Therefore, the issue
regarding the award of the custody of Enrique and Maria Teresa to the petitioner
spouse has become moot and academic. The
passage of time has removed the prop which supports the respondent spouse’s
position.
Nonetheless, this Court is loath to uphold the couple’s agreement
regarding the custody of the children.
Article 356 of the new Civil Code provides:
“Every child:
(1)
Is entitled to parental care;
(2)
Shall receive at least elementary education;
(3)
Shall be given moral and civic training by the
parents or guardian;
(4)
Has a right to live in an atmosphere conducive
to his physical, moral and intellectual development.”
It is clear that the abovequoted legal provision grants to every
child rights which are not and should not be dependent solely on the wishes,
much less the whims and caprices, of his parents. His welfare should not be subject to the
parents’ say-so or mutual agreement alone.
Where, as in this case, the parents are already separated in fact, the
courts must step in to determine in whose custody the child can better be
assured the rights granted to him by law.
The need, therefore, to present evidence regarding this matter, becomes
imperative. A careful scrutiny of the
records reveals that no such evidence was introduced in the CFI. This
latter court relied merely on the mutual agreement of the
spouses-parents. To be sure, this was
not a sufficient basis to determine the fitness of each parent to be the custodian of the children.
Besides,
at least one of the children –
Enrique, the eldest – is now eleven
years of age and should be given the choice of the parent he wishes to live with. This is the clear mandate of sec. 6, Rule 99 of the Rules of Court
which states, inter alia:
“* * * When husband and wife
are divorced or living separately
and apart, from each other, and the
question as to the care, custody, ands control of a child or children of
their marriage is brought before a
Court of First Instance by petition or as an incident to any other proceeding, the court,
upon hearing testimony as may be pertinent, shall aware the care, custody, and control of each such child as will be for its best
interests, permitting the child to choose which parent it prefers
to live with if it be over ten years of age, unless the parent so chosen be until to take charge of the child
by reason of moral depravity, habitual drunkenness or poverty. * * *” (emphasis supplied)
One last point regarding
the matter of support for the children – assuming that the custody of any or
more of the children will be finally awarded to the mother. Although the spouses
have agreed upon the monthly support P150 to be given by the petitioner spouse for each child, still this Court
must speak out its mind on the
insufficiency of this amount. We take
judicial notice of the devaluation of the peso in 1962 and the steady
skyrocketing of prices of all commodities, goods, and services, not to mention the
fact that all the children are already of school age. We believe, therefore, that the CFI may
increase this amount of P150 according to the needs of each child.
With the view that we
take of this case, we find it unnecessary to pass upon the other errors
assigned in the three appeals.
ACCORDINGLY, the decision dated May 11, 1964 and the
resolution dated July 31, 1964 of the Court of Appeals in CA -G.R. 32384-R
(subject-matter of G.R. L-23482), and the orders dated May 28, 1963 and June
24, 1963 of the Juvenile and
Domestic Relations Court (subject-matter
of G.R. L-23767) are affirmed. G. R. L-24259 is hereby remanded to the
Court of First Instance of Negros Occidental for further proceedings in accordance with this decision. No pronouncement as to costs.
Concepcion, C.J., Reyes, Dizon, Makalintal, Zaldivar and Angeles, JJ., concur.
Sanchez and Fernando,
JJ., did not take part.
[1]
Teodoro vs. Mirasol,
99 Phil. 150, 153.
[2]
“In common or ordinary parlance and in its ordinary significance, the term ‘shall’
is a
word of command, and one which has always or which must be given a compulsory
meaning, and it is generally imperative or mandatory. It has the invariable significance of
operating to impose a duty which may be enforced, particularly
if policy is in favor of this meaning
or when public interest is
involved, or where the
public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears.
People v. O’Rourke, 13 P. 2d. 939, 992, 124 Cal.
App. 752, (30 Words and Phrases,
Permanent Ed., p. 90)
“The presumption is that the word “shall’ in a statute is used in an imperative, and not in a directory, sense. If a
different interpretation is sought, it
must rest upon something in the character of the legislation or in the
context which will justify a different
meaning. Haythron v. Van Keuren & Son, 74 A. 502, 504, 79 N.J.L. 101; Board of Finance of
School City of Aurora v. People’s Nat. bank of Lawrenceburg,
89, N.E. 904, 905, 44 Ind. App. 578. (39 Words and Phrases, Permanent Ed., p. 93.)” Diokno v. Rehabilitation Finance
Corporation, G.R. No. L-4712, July 11, 1952, 91 Phil. 608) (emphasis supplied).