SALUD R. ARCA AND ALFREDO JAVIER JR., PLAINTIFFS AND APPELLEES, VS. ALFREDO JAVIER, DEFENDANT AND APPELLANT.

Dissatisfied with the decision of the Court of First Instance of
Cavite ordering him to give a monthly allowance of P60 to plaintiffs
beginning March 31, 1953, and to pay them attorney’s fees in the amount
of P150 defendant took the case directly to this Court attributing five
errors to the court below. This implies that the facts are not disputed.

The important facts which need to be considered in relation to the
errors assigned appear well narrated in the decision of the court below
which, for purposes of this appeal, are quoted hereunder:

“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
(Maragondon), 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’s and defendant’s folks)
plaintiff Salud R. Area had found it necessary to leave defendant’s
parents’ abode and transfer her residence to (Maragondon), 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
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 was not true that the cause of their
separation was desertion on her part but that if 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 ultramarine 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 marked 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 Alabama, 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 his 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, State 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.”

Appellant was a native born citizen of the Philippines who, in 1937,
married Salud R. Area, another Filipino citizen. Before their marriage
they had already a child, Alfredo Javier, Jr., who thereby became
legitimated. In 1927 appellant enlisted in the U. S. Navy and in 1938
sailed for the United States aboard a navy ship in connection with his
service leaving behind his wife and child, and on August 13, 1940, he
filed an action for divorce in the Circuit Court of Mobile County,
Alabama, U.S.A., alleging as ground abandonment by his wife. Having
received a copy of the complaint, Salud R. Area filed an answer
alleging, among other things, that appellant was not a resident of
Mobile County, but of Naic, Cavite, Philippines, and that it was not
true that the cause of their separation was abandonment on her part but
that appellant was in the United States, without her, because he was
then enlisted in the U.S. Navy. Nevertheless, the Circuit Court of
Mobile County rendered judgment granting appellant a decree of divorce
on April 9, 1941.

The issue now to be determined is: Does this decree have a valid effect in this jurisdiction?

The issue is not new. This court has had already occasion to pass
upon questions of similar nature in a number of cases and its ruling
has invariably been to deny validity to the decree. In essence, it was
held that one of the essential conditions for the validity of a decree
of divorce is that the court must have jurisdiction over the subject
matter and in order that this may be acquired, plaintiff must be
domiciled in good faith in the State in which it is granted (Cousins
Hix vs. Fluemer, 55 Phil., 851, 856). Most recent of such cases is
Sikat vs. Canson, 67 Phil., 207, which involves a case of divorce also
based on the ground of desertion. In that case, John Canson claimed not
only that he had legal residence in the State of Nevada, where the
action was brought, but he was an American citizen, although it was
proven that his wife never accompanied him there but has always
remained in the Philippines, and so it has been held that ” it is not *
* * the citizenship of the plaintiff for divorce which confers
jurisdiction upon a court, but his legal, residence within the State.”
The court further said: “And assuming that John Canson acquired legal
residence in the State of Nevada through the approval of his
citizenship papers, this would not confer jurisdiction on the Nevada
court to grant divorce that would be valid in this jurisdiction, nor
jurisdiction that could determine their matrimonial status, because the
wife was still domiciled in the Philippines. The Nevada court never
acquired jurisdiction over her person.”

It is true that Salud R. Area filed an answer in the divorce case
instituted at the Mobile County in view of the summons served upon her
in this jurisdiction, but this action cannot be interpreted as placing
her under the jurisdiction of the court because its only purpose was to
impugn the claim of appellant that his domicile or legal residence at
that time was Mobile County, and to show that the ground of desertion
imputed to her was baseless and false. Such answer should be considered
as a special appearance the purpose of which is to impugn the
jurisdiction of the court over the case.

In deciding the Canson case, this court did not overlook the other
cases previously decided on the matter, but precisely took good note of
them. Among the cases invoked are Ramirez vs. Gmur, 42 Phil., 855;
Cousins Hix vs. Fluemer, 55 Phil., 851, and Barreto Gonzales vs.
Gonzales, 58 Phil., 67. In the cases just mentioned, this court laid
down the following doctrines:

“It is established by the great weight of authority
that the court of a country in which neither of the spouses is
domiciled and to which one or both of them may resort merely for the
purpose of obtaining a divorce has no jurisdiction to determine their
matrimonial status; and a divorce granted by such a court is not
entitled to recognition elsewhere. (See Note to Succession of Benton,
59 L. R. A., 143) The voluntary appearance of the defendant before such
a tribunal does not invest the court with jurisdiction. (Andrews vs.
Andrews, 188 U. S., 14; 47 L. ed.t 366.)

“It follows that, to
give a court jurisdiction on the ground of the plaintiff’s residence in
the State or country of the judicial forum, his residence must be bona
fide. If a spouse leaves the family domicile and goes to another State
for the sole purpose of obtaining si divorce, and with no intention of
remaining, his residence there is not sufficient to confer jurisdiction
on the courts of the State. This is especially true where the cause of
divorce is one not recognized by the laws of the State of his own
domicile. (14 Cyc 817, 818.)” (Ramirez vs. Gmur, 82 Phil., 855.)

“But
even if his residence had been taken up in good faith, and the court
had acquired jurisdiction to take cognizance of the divorce suit, the
decree issued in his favor is not binding upon the appellant; for the
matrimonial domicile of the spouses being the City of Manila, and no
new domicile having been acquired in West Virginia, the summons made by
publication, she not having entered an appearance in the case, either
personally or by counsel, did not confer jurisdiction upon said court
over her person.” (Cousins Hix vs. Fluemer, 55 Phil., 851.)

“At
all times the matrimonial domicile of this couple has been within the
Philippine Islands and the residence acquired in the State of Nevada by
the husband for the purpose of securing a divorce was not a bona fide
residence and did not confer jurisdiction upon the court of the State
to dissolve the bonds of matrimony in which he had entered in 1919.”
(Barretto Gonzales vs. Gonzales, 56 Phil., 67.)

In the light of the foregoing authorities, it cannot therefore be
said that the Mobile County Court of Alabama had acquired jurisdiction
over the case for the simple reason that at the time it was filed
appellant’s legal residence was then in the Philippines. He could not
have acquired legal residence or domicile at Mobile County when he
moved to that place in 1938 because at that time he was still in the
service of the U.S. Navy and merely rented a room where he used to stay
during his occasional shore leave for shift duty. That he never
intended to live there permanently is shown by the fact that after his
marriage to Thelma Francis in 1941, he moved to New York where he
bought a house and a lot, and after his divorce from Thelma in 1949 and
his retirement from the U.S. Navy, he returned to the Philippines and
married Maria Odvina of Naic, Cavite, where he lived ever since. It may
therefore be said that appellant went to Mobile County, not with the
intention of permanently residing there, or of considering that place
as his permanent abode, but for the sole purpose of obtaining divorce
from his wife. Such residence is not sufficient to confer jurisdiction
on the court.

It is claimed that the Canson case cannot be invoked as authority or
precedent in the present case for the reason that the Haddeck case
which was cited by the court in the course of the decision was reversed
by the Supreme Court of the United States in the case of Williams vs.
North Carolina, 317 U.S. 287. This claim is not quite correct, for the
Haddeck case was merely cited as authority for the statement that a
divorce case is not a proceeding in rem, and the reversal did not
necessarily overrule the ruling laid down therein that before a court
may acquire jurisdiction over a divorce case, it is necessary that
plaintiff be domiciled in the State in which it is filed. (Cousins Hix
vs. Fluemer, supra,) At any rate, the applicability of the
ruling in the Canson case may be justified on another ground: The
courts in the Philippines can grant divorce only on the ground of
adultery on the part of the wife or concubinage on the part of the
husband, and if the decree is predicated on another ground, that decree
cannot be enforced in this jurisdiction. Said the Court in the Canson
case: ‘

“* * * In Barretto Gonzales vs. Gonzales (55 Phil., 67), we observed:

“*
* * While the decisions of this court heretofore in refusing to
recognize the validity of foreign divorce has usually been expressed in
the negative and have been based upon lack of matrimonial domicile or
fraud or collusion, we have not overlooked the provisions of the Civil
Code now enforced in these Islands. Article 9 thereof reads as follows:

”
‘The laws relating to family rights and duties, or to the status,
condition, and legal capacity of persons, are binding upon Spaniards
even though they reside in a foreign country.’

“‘And Article 11, the last part of. which reads:

“*
* * prohibitive laws concerning persons, their acts and their property,
and those intended to promote public order and good morals shall not be
rendered without effect by any foreign laws or judgments or by anything
done or any agreements entered into a foreign country.’

” ‘It
is therefore a serious question whether any foreign divorce, relating
to citizens of the Philippine Islands, will be recognized in this
jurisdiction, except it be for a cause, and under conditions for which
the courts of the Philippine Islands would grant a divorce.’

“The
courts in the Philippines can grant a divorce only on the ground of
‘adultery on the part of the wife or concubinage on the part of the
husband’ as provided for under section 1 of Act No. 2710. The divorce
decree in question was granted on the ground of desertion, clearly not
a cause for divorce under our laws. That our divorce law, Act No. 2710,
is too strict or too liberal is not for this court to decide. (Barretto
Gonzales vs. Gcnzales, suxpra). The allotment of powers between the
different governmental agencies restricts the judiciary within the
confines of interpretation, not of legislation. The legislative policy
on the matter of divorce in this jurisdiction is clearly set forth in
Act No. 2710 and has been upheld by this court (Goitia vs. Campos
Rueda, 35 Phil., 252; Garcia Valdez vs. Soterafia Tuazon, 40 Phil.,
943-952; Ramirez vs. Gmur, 42 Phil., 855; Chereau vs. Fuentebella, 43
Phil., 216; Fernandez vs. De Castro, 48 Phil., 123; Gorayeb vs. Hashim,
supra; Francisco vs. Tayao, 50 Phil., 42; Alkuino Lim Pang vs.
Uy Pian Ng Shun and Lim Tingco, 52 Phil., 571; Cousins Hix vs. Fluemer,
supra; and Barretto Gonzales vs. Gonzales, supra).

The above pronouncement is sound as it is in keeping with the well
known principle of Private International Law which prohibits the
extension of a foreign judgment, or the law affecting the same, if it
is contrary to the law or fundamental policy of the State of the forum.
(Minor, Conflict of Laws, pp. 8-14). It is also in keeping with our
concept of moral values which has always looked upon marriage as an
institution. And such concept has actually crystalized in a more
tangible manner when in the new Civil Code our people, through
Congress, decided to eliminate altogether our law relative to divorce.
Because of such concept we cannot but react adversely to any attempt to
extend here the effect of a decree which is not in consonance with our
customs, morals, and traditions. (Article 11, old Civil Code; Articles
15 and 17, new Civil Code; Gonzales vs. Gonzales. 58 Phil., 67.)

With regard to the plea of appellant that Salud R. Area had accused
him of the crime of bigamy and consequently she forfeited her right to
support, and that her child Alfredo Javier, Jr. is not also entitled to
support because he has already reached his age of majority, we do not
need to consider it here, it appearing that these questions have
already been passed upon in G. R. No. L-6706. ^[1] These questions were resolved against the pretense of appellant.

Wherefore, the decision appealed from is affirmed, with costs.

Paras, C. J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Labrador, Concepcion and Reyes, J. B. L., JJ., concur.

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^[1] Javier vs. Lucero, et al., 94 Phil., 634.