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Lacson vs. San Jose-Lacson
Lacson vs. San Jose-Lacson
Paredes, Poblador, Cruz & Nazareno for respondent-appellant Carmen San Jose-
Lacson.
Norberto Quisumbing for petitioner-appellee Alfonso Lacson.
SYLLABUS
DECISION
These three cases (G.R. 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.
"(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 Ramon 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.
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 led 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 be con rmed 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 lis 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-C.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
certi ed 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 of law pends resolution in the appeal."
The respondent spouse likewise led a motion dated May 15, 1963 for
reconsideration of the compromise judgment dated April 27, 1963 rendered in special
proceedings 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 immediate 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, led
a motion for execution of the compromise judgment and a charge for contempt. The
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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 certi ed 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 speci cally 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. 32384-R), now the subject of an appeal by certiorari to this Court
(G.R. No. L-23482). In her position certiorari dated June 27, 1963, 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 led 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 led 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 11, 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 in 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.
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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 of property between spouses during the marriage shall not take place
save in virtue of a judicial order." (Art. 190, italics supplied)
"The husband and the wife may agree upon the dissolution of the conjugal
partnership during the marriage, subject to judicial approval. All the creditors of
the husband and of the wife, as well as of the conjugal partnership, shall be
noti ed of 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, italics 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 been separated in fact for at least
ve 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 nancial and proprietary interests is
manifest.
Besides, this Court cannot constrain the spouses to live together, as
"[I]t is 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)
We now come to the question of the custody and support of the children.
It is not disputed that it was the JDRC which rst acquired jurisdiction over the
matter of custody and support of the children. The complaint docketed as civil case E-
00030 in the JDRC was led by the respondent spouse on March 12, 1963, whereas the
joint petition of the parties docketed as special proceedings 6978 in the CFI was led
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 led 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 led
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 led by the respondent spouse in the JDRC, on the
grounds of res judicata and lis pendens. And the JDRC acted correctly and justi ably 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:
". . . [T]hat 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 speci cally 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 nds 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 su cient 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)
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 ve years have elapsed since the
ling 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:
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,
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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 su cient 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, and 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 award the care, custody, and control of each child as will be for
its best interest, 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 un t to take charge
of the child by reason of moral depravity, habitual drunkenness, incapacity, or
poverty . . ." (italics 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 nally awarded to the mother.
Although the spouses have agreed upon the monthly support of P150.00 to be given by
the petitioner spouse for each child, still this Court must speak out its mind on the
insu ciency 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 nd 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 C.A 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. No. 23767) are a rmed. 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, J.B.L., Dizon, Makalintal, Zaldivar and Angeles, JJ.,
concur.
Sanchez and Fernando, JJ., did not take part.
Footnotes
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
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of operating to impose a duty which may be enforced particularly if public policy is in
favor of this meaning or when public interest is involved, or where the public persons
have rights which ought to be exercised or enforced, unless a contrary intent appears.
People v. O'Rourke, 13 P. 2d, 989, 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 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) (Italics
supplied)