Republic of the Philippines

SUPREME COURT
Manila City

VALERIO E. KALAW,
Petitioner,
-versus-

Civil Case No. G.R.

166357,
September
19, 2011
For

MA. ELENA FERNANDEZ,

Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - -x

Declaration of Nullity
of Marriage under Art.
36 of the Family Code
of the Philippines

MEMORANDUM
COME NOW PLAINTIFF-RESPONDENT, through the
undersigned counsel, unto this Honorable Supreme Court
most respectfully submit and present this Memorandum in
the above-titled case and aver that:
PREFATORY STATEMENT
A finding of psychological incapacity must be
supported by well-established facts. It is the plaintiffs
burden to convince the court of the existence of
these facts.
FACTUAL BACKGROUND
1. Petitioner Valerio E. Kalaw (Tyrone) and respondent Ma.
Elena Fernandez (Malyn) met in 1973. They maintained
a relationship and eventually married in Hong Kong on
November 4, 1976. They had four children, Valerio
(Rio), Maria Eva (Ria), Ramon Miguel (Miggy or Mickey),
and Jaime Teodoro (Jay).;
2. Shortly after the birth of their youngest son, Tyrone had
an extramarital affair with Jocelyn Quejano (Jocelyn),
who gave birth to a son in March 1983.;

3. In May 1985, Malyn left the conjugal home (the house

of her Kalaw in-laws) and her four children with Tyrone.
Meanwhile, Tyrone started living with Jocelyn, who bore
him three more children;
4. In 1990, Tyrone went to the United States (US) with
Jocelyn and their children. He left his four children from
his marriage with Malyn in a rented house in Valle Verde
with only a househelp and a driver;
5. The househelp would just call Malyn to take care of the
children whenever any of them got sick. Also, in
accordance with their custody agreement, the children
stayed with Malyn on weekends;
6. In 1994, the two elder children, Rio and Ria, asked for
Malyns permission to go to Japan for a one-week
vacation. Malyn acceded only to learn later that Tyrone
brought the children to the US;
7. After just one year, Ria returned to the Philippines and
chose to live with Malyn;
8. Meanwhile, Tyrone and Jocelyns family returned to the
Philippines and resumed physical custody of the two
younger children, Miggy and Jay. According to Malyn,
from that time on, the children refused to go to her
house on weekends because of alleged weekend plans
with their father;
9. On July 6, 1994, nine years since the de facto
separation from his wife, Tyrone filed a petition for
declaration of nullity of marriage based on Article 36 of
the Family Code;
10.
He alleged that Malyn was psychologically
incapacitated to perform and comply with the essential

marital obligations at the time of the celebration of

their marriage. He further claimed that her
psychological incapacity was manifested by her
immaturity and irresponsibility towards Tyrone and their
children during their co-habitation, as shown by Malyns
following acts:
1. she left the children without proper care and
attention as she played mahjong all day and all night;
2. she left the house to party with male friends and
returned in the early hours of the following day; and
3. she committed adultery on June 9, 1985, which act
Tyrone discovered in flagrante delicto.
11.
Malyn denied being psychologically incapacitated.
While she admitted playing mahjong, she denied
playing as frequently as Tyrone alleged. She maintained
that she did so only two to three times a week and
always between 1 p.m. to 6 p.m. only. And in those
instances, she always had Tyrones permission and
would often bring the children and their respective
yayas with her. She maintained that she did not neglect
her duties as mother and wife;
12.
Malyn admitted leaving the conjugal home in May
1985. She, however, explained that she did so only to
escape her physically abusive husband.
13.
On the day she left, Tyrone, who preferred to keep
Malyn a housewife, was upset that Malyn was preparing
to go to work;
14.
He called up the security guards and instructed
them not to let Malyn out of the house. Tyrone then
placed cigarette ashes on Malyns head and proceeded
to lock the bedroom doors. Fearing another beating,
Malyn rushed out of their bedroom and into her motherin-laws room. She blurted that Tyrone would beat her up

again so her mother-in-law gave her P300 to leave the

house. She never returned to their conjugal home;
15.
Malyn explained that she applied for work, against
Tyrones wishes, because she wanted to be selfsufficient. Her resolve came from her discovery that
Tyrone had a son by Jocelyn and had secretly gone to
the US with Jocelyn;
16.
After the Hyatt Hotel incident, Malyn only saw her
children by surreptitiously visiting them in school. She
later obtained partial custody of the children as an
incident to the legal separation action filed by Tyrone
against her (which action was subsequently dismissed
for lack of interest);
17.
As an affirmative defense, Malyn maintained that
it was Tyrone who was suffering from psychological
incapacity, as manifested by his drug dependence,
habitual drinking, womanizing, and physical violence;
18.
Malyn presented Dr. Dayan a clinical psychologist,
as her expert witness.
19.
Dr.
Dayan
interviewed
Tyrone,
Malyn,
Miggy/Mickey, Jay, and Ria for her psychological
evaluation of the spouses. The factual narrations culled
from these interviews reveal that Tyrone found Malyn a
lousy mother because of her mahjong habit, while
Malyn was fed up with Tyrones sexual infidelity, drug
habit, and physical abuse.
20.
Dr. Dayan determined that both Tyrone and Malyn
were behaviorally immature. They encountered
problems because of their personality differences,
which ultimately led to the demise of their marriage.
Her diagnostic impressions are summarized below:

The marriage of Tyrone and Malyn was a mistake

from the very beginning. Both of them were not
truly ready for marriage even after two years of
living together and having a child. When Malyn
first met Tyrone who showered her with gifts,
flowers, and affection she resisted his overtures.
She made it clear that she could take him or leave
him. But the minute she started to care, she
became a different person clingy and immature,
doubting
his
love,
constantly
demanding
reassurance that she was the most important
person in his life. She became relationshipdependent. It appears that her style then was
when she begins to care for a man, she puts all
her energy into him and loses focus on herself.
This imbalance between thinking and feeling was
overwhelming to Tyrone who admitted that the
thought of commitment scared him. Tyrone
admitted that when he was in his younger years,
he was often out seeking other women. His
interest in them was not necessarily for sex, just
for fun dancing, drinking, or simply flirting.
Both of them seem behaviorally immature. For
some time, Malyn adapted to her husband who
was a moody man with short temper and
unresolved issues with parents and siblings. He
was a distancer, concerned more about his work
and friends tha[n] he was about spending time
with his family. Because of Malyns and Tyrones
backgrounds (both came from families with high
conflicts) they experienced turmoil and chaos in
their marriage. The conflicts they had struggled to
avoid suddenly galloped out of control Their
individual
personalities
broke
through,
precipitating the demise of their marriage.
21.
Dr.
Dayan
likewise
wrote
in
her
psychological evaluation report that Malyn exhibited
significant, but not severe, dependency, narcissism,
and compulsiveness;

22.
On the stand, the psychologist elaborated
that while Malyn had relationship problems with Tyrone,
she appeared to have a good relationship with her kids.
23.
As for Tyrone, he has commitment issues
which prevent him from committing himself to his
duties as a husband. He is unable to remain faithful to
Malyn and is psychologically incapacitated to perform
this duty.
Ruling of the Regional Trial Court:
After summarizing the evidence presented by both
parties, the trial court concluded that both parties are
psychologically incapacitated to perform the essential
marital obligations under the Family Code. The courts
Decision is encapsulated in this paragraph:
From the evidence, it appears that parties are both
suffering from psychological incapacity to perform their
essential marital obligations under Article 36 of the
Family Code. The parties entered into a marriage
without as much as understanding what it entails. They
failed to commit themselves to its essential obligations:
the conjugal act, the community of life and love, the
rendering of mutual help, the procreation and
education of their children to become responsible
individuals. Parties psychological incapacity is grave,
and serious such that both are incapable of carrying
out the ordinary duties required in marriage. The
incapacity has been clinically established and was
found to be pervasive, grave and incurable.
The trial court then declared the parties marriage void
ab initio pursuant to Article 36 of the Family Code.
Ruling of the Court of Appeals:
Malyn appealed the trial courts Decision to the CA. The
CA reversed the trial courts ruling because it is not

supported by the facts on record. Both parties

allegations and incriminations against each other do
not support a finding of psychological incapacity. The
parties faults tend only to picture their immaturity and
irresponsibility in performing their marital and familial
obligations. At most, there may be sufficient grounds
for a legal separation. Moreover, the psychological
report submitted by petitioners expert witness, Dr.
Gates, does not explain how the diagnosis of NPD came
to be drawn from the sources. It failed to satisfy the
legal and jurisprudential requirements for the
declaration of nullity of marriage.
24.
Tyrone filed a motion for reconsideration but the
same was denied on December 15, 2004.
25.
Herein accused was compelled to hire the services
of a legal counsel to commence the enforcement of
ejection under the wings of the courts of law.

ISSUES
A. Whether petitioner has sufficiently proved
respondent suffers from psychological incapacity;

that

ARGUMENTS
A. The petition has no merit. The CA committed no
reversible error in setting aside the trial courts Decision
for lack of legal and factual basis;
B. A petition for declaration of nullity of marriage is
governed by Article 36 of the Family Code which
provides:
ART. 36. A marriage contracted by any party
who, at the time of the celebration, was
psychologically incapacitated to comply with the
essential marital obligations of marriage, shall

likewise be void even if such incapacity becomes

manifest only after its solemnization.
C. Psychological incapacity is the downright incapacity or
inability to take cognizance of and to assume the basic
marital obligations.( Republic v. Iyoy, 507 Phil. 485,
502 (2005), citing Republic v. Court of Appeals,
335 Phil. 664, 678 (1997))
D. The burden of proving psychological incapacity is on
the plaintiff. (Republic v. Court of Appeals, 335
Phil. 664, 676 (1997).
E. Petitioner failed to prove that his wife (respondent)
suffers from psychological incapacity. He presented the
testimonies of two supposed expert witnesses who
concluded
that
respondent
is
psychologically
incapacitated, but the conclusions of these witnesses
were premised on the alleged acts or behavior of
respondent which had not been sufficiently proven.
Petitioners experts heavily relied on petitioners
allegations of respondents constant mahjong sessions,
visits to the beauty parlor, going out with friends,
adultery, and neglect of their children. Petitioners
experts opined that respondents alleged habits, when
performed constantly to the detriment of quality and
quantity of time devoted to her duties as mother and
wife, constitute a psychological incapacity in the form
of NPD.
F. In Santos v. Court of Appeals, 310 Phil. 21, 39
(1995), it was held that:
The plaintiff must prove that the incapacitated party,
based on his or her actions or behavior, suffers a
serious psychological disorder that completely disables
him or her from understanding and discharging the
essential obligations of the marital state. The
psychological problem must be grave, must have

existed at
incurable.

the

time

of

marriage,

and

must

be

G. Petitioners allegations, which served as the bases or

underlying premises of the conclusions of his experts,
were not actually proven. In fact, respondent presented
contrary evidence refuting these allegations of the
petitioner;
H. Given the insufficiency of evidence that respondent
actually engaged in the behaviors described as
constitutive of NPD, there is no basis for concluding that
she was indeed psychologically incapacitated. Indeed,
the totality of the evidence points to the opposite
conclusion. A fair assessment of the facts would show
that respondent was not totally remiss and incapable of
appreciating and performing her marital and parental
duties. Not once did the children state that they were
neglected by their mother;
I. What transpired between the parties is acrimony and,
perhaps, infidelity, which may have constrained them
from dedicating the best of themselves to each other
and to their children. There may be grounds for legal
separation, but certainly not psychological incapacity
that voids a marriage.
J. In fine, the respondent alleged mere errors of judgment
of the trial court in their petition. The appellate courts
decision in dismissing the petition has no error. The trial
courts Decision merely summarized the allegations,
testimonies, and evidence of the respective parties, but
it did not actually assess the veracity of these
allegations, the credibility of the witnesses, and the
weight of the evidence. The trial court did not make
factual findings which can serve as bases for its legal
conclusion of psychological incapacity. It behooved the
supreme court to have dismissed the petition, instead
of giving it due course and granting it.

PRAYER
WHEREFORE, premise considered, it respectfully prayed for
that this Honorable Supreme Court that PetitionerRespondents prayer for the nullity of marriage based on
psychological incapacity be DENIED for having no cause of
action and the petition
DISMISSED for being clearly unmeritorious.
Other just and equitable relief under the foregoing are
likewise being prayed for.
Respectfully submitted.
Jan Veah P. Caabay
Counsel for the Respondent
Roll No. 52749
MCLE Compliance No. IV0019818
IBP No. 958919, 12/ 31/2015
PPC
PTR No. 0019511, 12/ 31/
2015, PPC
Cellphone No. 0915-3475225
Email: veah5366@yahoo.com
JVPC LAW OFFICE
Brgy. San Manuel, Puerto
Princesa City, Palawan
Copy furnished:
Jocelyn B. Fabello
Counsel for Respondent
JBF LAW OFFICES
14 Carandang Street
Puerto Princesa City
Palawan
SWORN ATTESTATION OF THE COUNSEL/LAWYER

I, Jan Veah P. Caabay, of legal age, Filipino, with Office

Address at Brgy. San Manuel, Puerto Princesa City, Palawan
after being duly sworn depose and say:
I was the one who conducted the examination of the
respondent and her witnesses at my aforementioned office;
I have faithfully recorded or caused to be recorded the
questions I asked and the corresponding answers that the
respondent gave;
I have fully examined the affiant and I am fully satisfied that
she fully understood the contents of this Memorandum and
that she executed the same freely and voluntarily;
I FURTHER ATTEST that I have faithfully written the accurate
English translation of the question asked and the
corresponding answer given by the witness which were all in
Tagalog and that neither I nor any other person present
coached the witness regarding his answer.
IN WITNESS WHEREOF, I have hereunto set my hand
this_______________ at Puerto Princesa City, Palawan.

JAN VEAH P.
CAABAY
Affiant
SUBSCRIBED AND SWORN
to before me this
_____________, at the City of Puerto Princesa City, Palawan,
Philippines, with the affiant presenting to me his
identification card as sufficient proof of his identity.

Doc. No. _____;

Page No. _____;
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Series of 2016
VERIFICATION AND CERTIFICATION OF NON-FORUM
SHOPPING

I, Ma. Elena Fernandez, of legal age, a Filipino, and a resident

of the Philippines on oath, state:
1. That I as the Respondent in the above-entitled case
have caused this Memorandum to be prepared; that I
read and understood its contents which are true and
correct of my own personal knowledge and/or based on
true records;
2. That I have not commenced any action or proceeding
involving the same issue and specifically the same
check/s in the Supreme Court, the Court of Appeals or
any other tribunal or agency, particularly before the
Office of the City Prosecutor; that to the best of my
knowledge, no such action or proceeding is pending in
the Supreme Court, the Court of Appeals or any other
tribunal or agency, and that, if I should learn thereafter
that a similar action or proceeding has been filed or is
pending before these courts or tribunal or agency, I
undertake to report that fact to the Court within five (5)
days therefrom.
3. That I knowingly and voluntarily waive and forego the
institution of any criminal complaint for Violation of
Batas Pambansa Blg. 22 against the defendant herein
based on the same check/s subject matter of this Small
Claims Complaint.
SUBSCRIBED AND SWORN to before me this _____________,
at the City of Puerto Princesa City, Palawan, Philippines,
with the affiant presenting to me his identification card as
sufficient proof of his identity.

Ma.
Fernandez
Affiant

Doc. No. _____;

Page No. _____;
Book No. _____;
Series of 2016

Elena