G.R. No. 13553. February 23, 1960
JOSE DE OCAMPO, PETITIONER, VS. SERAFINA FLORENCIANO, RESPONDENT.
BENGZON, J.:
Serafina, on the ground of adultery. The court of first instance of
Nueva Ecija dismissed it. The Court of Appeals affirmed, holding there
was confession of judgment, plus condonation or consent to the adultery
and prescription.
We granted certiorari to consider the application of articles 100
and 101 of the New Civil Code, which for convenience are quoted
herewith:
“ART. 100.—The legal separation may be claimed only
by the innocent spouse, provided there has been no condonation of or
consent to the adultery or concubinage. “Where both spouses are
offenders, a legal separation cannot be claimed by either of them.
Collusion between the parties to obtain legal separation shall cause
the dismissal of the petition.”“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 record shows that on July 5, 1955, the complaint for legal
separation was filed. As amended, it described their marriage performed
in 1938, and the commission of adultery by Serafina, in March 1951 with
Jose Arcalas, and in June 1955 with Nelson Orzame.
Because the defendant made no answer, the court defaulted her, and
pursuant to Art. 101 above, directed the provincial fiscal to
investigate whether or not collusion existed between the parties. The
fiscal examined the defendant under oath, and then reported to the
Court that there was no collusion. The plaintiff presented his evidence
consisting of the testimony of Vicente Medina, Ernesto de Ocampo, Cesar
Enriquez, Mateo Damo, Jose de Ocampo and Capt. Serafin Gubat.
According to the Court of Appeals, the evidence thus presented shows
that “plaintiff and defendant were married in April 5, 1938 by a
religious ceremony in Guimba, Nueva Ecija, and had lived thereafter as
husband and wife. They begot several children who are now living with
plaintiff. In March, 1951, plaintiff discovered on several occasions
that his wife was betraying his trust by maintaining illicit relations
with One Jose Arcalas. Having found the defendant carrying marital
relations with another man plaintiff sent her to Manila in June 1951 to
study beauty culture, where she stayed for one year. Again, plaintiff
discovered that while in the said city defendant was going out with
several other men, aside from Jose Arcalas. Towards the end of June,
1952, when defendant had finished studying her course, she left
plaintiff and since then they had lived separately.
“On June 18, 1955, plaintiff surprised his wife in the act of having
illicit relations with another man by the name of Nelson Orzame.
Plaintiff signified his intention of filing a petition for legal
separation, to which defendant manifested her conformity provided she
is not charged with adultery in a criminal action. Accordingly,
plaintiff filled on July 5, 1955, a petition for legal separation.”
The Court of Appeals held that the husband’s right to legal
separation on account of the defendant’s adultery with Jose Arcalas had
prescribed, because his action was not filed within one year from March
1951 when plaintiff discovered her infidelity. (Art. 102, New Civil
Code) We must agree with the Court of Appeals on this point.[1]
As to the adultery with Nelson Orzame, the appellate court found
that in the night of June 18, 1955, the husband upon discovering the
illicit connection, expressed his wish to file a petition for legal
separation and defendant readily agreed to such filing. And when she
was questioned by the Fiscal upon orders of the court, she reiterated
her conformity to the legal separation even as she admitted having had
sexual relations with Nelson Orzame. Interpreting these facts virtually
to mean a confession of judgment the Appellate Court declared that
under Art. 101, legal separation could not be decreed.
As we understand the article, it does not exclude, as evidence, any
admission or confession made by the defendant outside of the court. It
merely prohibits a decree of separation upon a confession of judgment.
Confession of judgment usually happens when the defendant appears in
court and confesses the right of plaintiff to judgment or files a
pleading expressly agreeing to the plaintiff’s demand.[2] This did not occur.
Yet, even supposing that the above statement of defendant
constituted practically a confession of judgment, inasmuch as there is
evidence of the adultery independently of such statement, the
decree may and should be granted, since it would not be based on her
confession, but upon evidence presented by the plaintiff. What the law
prohibits is a judgment based exclusively or mainly on defendant’s
confession. If a confession defeats the action ipso facto, any defendant who opposes the separation will immediately confess judgment, purposely to prevent it.
The mere circumstance that defendant told the Fiscal that she “liked
also” to be legally separated from her husband, is no obstacle to the
successful prosecution of the action. When she refused to answer the
complaint, she indicated her willingness to be separated. Yet, the law
does not order the dismissal. Allowing the proceeding to continue, it
takes precautions against collusion, which implies more than consent or
lack of opposition to the agreement.
Needless to say, when the court is informed that defendant equally
desires the separation and admitted the commission of the offense, it
should be doubly careful lest a collusion exists. (The Court of Appeals
did not find collusion.)
Collusion in divorce, or legal separation means the agreement.
“* * * between husband and wife for one of them to
commit, or to appear to commit, or to be (represented in court as
having committed, a matrimonial offense, or to suppress evidence of a
valid defense, for the purpose of enabling the other to obtain a
divorce. This agreement, if not express, may be implied from the acts
of the parties. It is a ground for denying the divorce.” (Griffiths vs. Griffiths, 69 N. J. Eq. 689 60 Atl. 1099; Sandoz vs. Sandoz, 107 Ore. 282, 214 Pas. 590.)
In this case, there would be collusion if the parties had arranged
to make it appear that a matrimonial offense had been committed although it was not, or if the parties had connived to bring about a legal separation even in the absence of grounds therefor.
Here, the offense of adultery had really taken place, according to the evidence. The defendant could not have falsely told
the adulterous acts to the Fiscal, because her story might send her to
jail the moment her husband requests the Fiscal to prosecute. She could
not have practiced deception at such a personal risk.
In this connection, it has been held that collusion may not be
inferred from the mere fact that the guilty party confesses to the
offense and thus enables the other party to procure evidence necessary
to prove it. (Williams vs. Williams, [N. Y.] 40 N. E. (2d) 1017; Rosenweig vs. Rosenweig, 246 N. Y. Suppl. 231; Conyers, vs. Conyers, 224 S. W. [2d] 688.)
And proof that the defendant desires the divorce and makes no defense, is not by itself collusion. (Pohlman vs. Pohlman, [N. J.] 46 Atl. Rep. 658.)
We do not think plaintiff’s failure actively to search for defendant
and take her home (after the latter had left him in 1952) constituted
condonation or consent to her adulterous relations with Orzame. It will
be remembered that she “left” him after having” sinned with Arcalas and
after he had discovered her dates with other men. Consequently, it was not his duty to search for her to bring her home. Hers was the obligation to return.
Two decisions[3] are cited
wherein from apparently similar circumstances, this Court inferred the
husband’s consent to or condonation of his wife’s misconduct. However,
upon careful examination, a vital difference will be found in both
instances, the husband had abandoned his wife; here it was the wife who
“left” her husband.
Wherefore, finding no obstacles to the aggrieved husband’s petition
we hereby reverse the appealed, decision and decree a legal separation
between these spouses, with all the consequent effects. Costs of all
instances against Serafina Florenciano. So ordered.
Paras, C. J., Padilla, Montemayor, Labrador, Concepcion, Reyes, J. B. L., Endencia, Barrera, and Gutierrez David, JJ., concur.
[1] Brown vs. Yambao, 102 Phil., 168.
[2] Cf. Phil. National Bank vs. Ingersoll, 43 Phil., 444, See generally Corpus Juris Secundum “Judgments” sec. 134.
[3] People vs. Sensano, 58 Phil., 73; People vs. Guinucud, 58 Phil., 621.