G.R. No. 79284. November 27, 1987
FROILAN C. GANDIONCO, PETITIONER, VS. HON. SENEN C. PENARANDA, AS PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF MISAMIS ORIENTAL, BRANCH 18, CAGAYAN DE ORO CITY, AND TERESITA S…
PADILLA, J.:
A special civil action for certiorari, with application
for injunction, to annul (1) the Order of the respondent Judge, dated 10
December 1986, ordering petitioner to pay support pendente
lite to private respondent (his wife) and
their child, and (2) the Order of the same respondent Judge, dated 5 August
1987, denying petitioner’s motion to suspend hearings in the action for legal
separation filed against him by private respondent as well as his motion to
inhibit respondent Judge from further hearing and trying the case.
On 29 May 1986,
private respondent, the legal wife of the petitioner, filed with the Regional
Trial Court of Misamis Oriental, 10th Judicial
District, Branch 18, in Cagayan de Oro City, presided over by respondent Judge, a complaint against petitioner for legal
separation, on the ground of concubinage, with a
petition for support and payment of damages.
This case was docketed as Civil Case No. 10636. On 13 October 1986, private respondent also filed with the Municipal
Trial Court, General
Santos City, a complaint against petitioner for concubinage, which was docketed on 23 October 1986 as Criminal Case No.
15437-111. On 14 November 1986, application for the
provisional remedy of support pendente lite, pending a decision in the action for legal
separation, was filed by private respondent in the civil case for legal
separation. The respondent judge, as
already stated, on 10 December 1986,
ordered the payment of support pendente lite.
In this recourse, petitioner contends that the civil action for
legal separation and the incidents consequent thereto, such as, the application
for support pendente lite,
should be suspended in view of the criminal case for concubinage
filed against him by the private respondent. In support of his contention, petitioner cites
Art. 111, Sec. 3 of the 1985 Rules
on Criminal Procedure, which states:
“SEC. 3. Other civil
actions arising from offenses. – Whenever the offended party shall have
instituted the civil action to enforce the civil liability arising from the
offense, as contemplated in the first paragraph of Section 1 hereof, the
following rules shall be observed:
(a) After a criminal
action has been commenced, the pending civil action arising from the same
offense shall be suspended, in whatever stage
it may be found, until final judgment in the criminal proceeding has been
rendered. x x x“
The
civil action for legal separation, grounded as it is on concubinage,
it is petitioner’s position that such civil action arises from, or is
inextricably tied to the criminal action for concubinage,
so that all proceedings related to legal separation will have to be suspended
to await conviction or acquittal for concubinage in
the criminal case. Authority for this
position is this Court’s decision in the case of Jerusalem vs. Hon. Roberto Zurbano[1].
Petitioner’s contention
is not correct.
In Jerusalem, the Court’s statement to the effect that suspension of an action for
legal separation would be proper if an allegation of concubinage
is made therein, relied solely on Sec. 1 of Rule 107 of the then provisions of
the Rules of Court on criminal procedure, to wit:
“Sec. 1. Rules
governing civil actions arising from offenses. – Except as otherwise provided by law, the
following rules shall be observed:
(a) When a criminal action
is instituted, the civil action for recovery of civil liability arising from
the offense charged is impliedly instituted with the criminal action, unless
the offended party expressly waives the civil action or reserves his right to
institute it separately;
(b) Criminal and civil
actions arising from the same offense may be instituted separately, but after
the criminal action has been commenced the civil action can not be instituted
until final judgment has been rendered in the criminal action;
(c) After a criminal
action has been commenced, no civil action arising from the same offense can be
prosecuted; and the same shall be suspended,
in whatever stage it may be found, until proceeding has been rendered; x x x“(Emphasis
supplied)
The
provisions last quoted did not clearly state, as the 1985 Rules do, that the
civil action to be suspended, with or upon the filing of a criminal action, is
one which is “to enforce
the civil liability arising from the
offense”. In other words, in view
of the amendment under the 1985 Rules on Criminal Procedure, a civil action for legal separation, based on concubinage, may proceed ahead of, or simultaneously with,
a criminal action for concubinage, because said civil action is not one “to enforce
the civil liability arising from the offense” even if both the civil and
criminal actions arise from or are related to the same offense. Such civil action is one intended to obtain
the right to live separately, with the legal consequences thereof, such as, the
dissolution of the conjugal partnership of gains, custody of offsprings, support, and disqualification from inheriting
from the innocent spouse, among others.
As correctly pointed out by the respondent Judge in his Order dated 5 August
1987:
“The unreported case of JERUSALEM vs. Hon. Roberto Zurbano, Judge of CFI of Antique, et al., L-11935, April
24, 1959 (105 Phil. 1277) is not controlling.
It applied paragraph C of Sec. 1, of then Rule 107 of the Rules of
Court, which reads:
“After a criminal action has been commenced, no civil action arising from the same
offense can be prosecuted and the same shall be suspended, in whatever stage it may be found, until final
judgment in the criminal proceeding has been rendered.” (underlining
supplied)
The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal
Procedure which refers to “civil actions to enforce the civil liability
arising from the offense” as contemplated in the first paragraph of
Section 1 of Rule 111 – which is a civil
action “for recovery of civil liability arising from the offense
charged”. Sec. 1, Rule 111, (1985)
is specific that it refers to civil action for the recovery of civil liability
arising from the offense charged.
Whereas, the old Sec. 1 (c), Rule 107 simply referred to “Civil
action arising from the same offense.”
As earlier noted this
action for legal separation is not to recover civil liability, in the main,
but is aimed at the conjugal rights of the spouses and their relations to each
other, within the contemplation of Articles 97 to 108, of the Civil Code”[2].
Petitioner also argues
that his conviction for concubinage will have to be
first secured before the action for legal separation can prosper or succeed, as
the basis of the action for legal separation is his alleged offense
of concubinage.
Petitioner’s assumption
is erroneous.
A decree of legal
separation, on the ground of concubinage, may be
issued upon proof by preponderance of
evidence in the action for legal separation[3]. No
criminal proceeding or conviction is
necessary. To this end, the doctrine in Francisco vs. Tayao[4] has been modified, as that case was decided
under Act. No. 2710, when absolute divorce was then allowed and had for its grounds the same grounds for legal
separation under the New Civil Code, with the requirement, under such former
law, that the guilt of defendant spouse had to be established by final judgment
in a criminal action. That requirement
has not been reproduced or adopted by the framers of the present Civil Code,
and the omission has been uniformly accepted as a modification of the stringent rule in Francisco v. Tayao[5].
Petitioner’s attempt to resist payment of support pendente lite to
his wife must also fail, as we find no proof of grave abuse of discretion on
the part of the respondent Judge in ordering the same. Support pendente
lite, as a
remedy, can be availed of in an action for legal separation, and
granted at the discretion of the judge[6]. If petitioner
finds the amount of support pendente lite ordered as too onerous, he can always file a
motion to modify or reduce the same[7].
Petitioner lastly seeks to have the respondent Judge disqualified
from hearing the case, as the grant of support pendente
lite and the denial of the motion to suspend
hearings in the case, are taken by the petitioner as a disregard of
applicable laws and existing doctrines, thereby showing the respondent judge’s
alleged manifest partiality to private respondent.
Petitioner’s contention is without merit. Divergence of opinions between a judge
hearing a case and a party’s counsel, as to applicable laws and jurisprudence,
is not a sufficient ground to disqualify the judge from hearing the case, on
the ground of bias and manifest partiality.
This is more so, in this case, where we find the judge’s disposition of
petitioner’s motions to be sound and well-taken.
WHEREFORE, the instant petition is hereby
DISMISSED. Costs against petitioner.
SO ORDERED.
Yap, (Chairman), Melencio-Herrera,
Paras, and Sarmiento, JJ., concur.
[1]
G.R. No. L-11935, 24 April
1959, 105 Phil. 1277
(1959), Unrep.
[2]
Rollo at 33
[3]
Petitioner himself admits this in his
Rejoinder to plaintiff’s Opposition to his Motion to
Inhibit Respondent Judge and
Motion to Suspend Hearing wherein he states, “Concubinage is the
same criminal offense punishable under
Art. 334 of the Revised Penal
Code which, in a case for legal separation, the same may be proved based on preponderance
of evidence”. Rollo
at 50.
[4]
50 Phil. 42 (1927)
[5]
Padilla, I CIVIL CODE ANNOTATED 526 (1975); Paras, I
CIVIL CODE OF THE PHILIPPINES
ANNOTATED 374 (1971); Tolentino, I COMMENTARIES AND
JURISPRUDENCE ON THE CIVIL CODE OF THE PHILIPPINES
311 (1983). Tolentino
qualifies: “It is not mere sexual
infidelity that constitutes the ground for legal separation. Such infidelity must constitute adultery
or concubinage as defined by the Revised Penal
Code.” (Id at 310).
Further: “There would be no
more legal obstacle to a decree of legal separation at the instance of an offended
wife, based on an act of infidelity for which the guilty husband has been
convicted of adultery upon the complaint of his paramour’s husband so long as
such act may also constitute concubinage and can be
proven in the legal separation proceedings.
We submit that the new Code, by omitting the requirement of criminal
conviction of adultery or concubinage, as the case
may be, has modified the doctrine in the case of Francisco v. Tayao.” (Id at 311).
It may be noted
that under Article 55(6) of the Family Code of the Philippines (Executive Order
No. 209 as amended) soon to take effect, sexual infidelity or perversion of either spouse has replaced adultery on
the part of the wife and concubinage on the part of
the husband as defined by the Revised Penal Code (Art. 97, New Civil Code) as one of the grounds for legal
separation.
[6]
Araneta v. Concepcion, et al., 99 Phil. 709
(1956)
[7]
Sec. 5, Rule 61 of the Rules of Court states:
“Order. – The court shall determine provisionally
the pertinent facts, and shall render such order as equity and justice may
require, having due regard to the necessities of the applicant, the means of
the adverse party, the probable outcome of the case, and such other
circumstances as may aid in the proper elucidation of the question
involved. If the application is
granted, the court shall fix the amount of money to be provisionally paid, and
the terms of payment. If the application
is denied, the trial of the principal case on its merits shall be held as early as possible”.