Republic of the Philippines

Supreme Court
Manila

THIRD DIVISION

GERBERT R. CORPUZ, G.R. No. 186571

Petitioner,
Present:

CARPIO MORALES, J., Chairperson,

BRION,
- versus - BERSAMIN,
*
ABAD, and
VILLARAMA, JR., JJ.

Promulgated:
August 11, 2010
DAISYLYN TIROL STO. TOMAS and
The SOLICITOR GENERAL,
Respondents. -- -
x--------------------------------------------------------------------------------------------------------------x

DECISION

BRION, J.:

Before the Court is a direct appeal from the decision[1] of the Regional Trial Court (RTC)
of Laoag City, Branch 11, elevated via a petition for review on certiora[2]under Rule 45 of the
Rules of Court (present petition).

Petitioner Gerbert R. Corpuz was a former Filipino citizen who acquired Canadian
citizenship through naturalization on November 29, 2000.[3] On January 18, 2005, Gerbert
married respondent Daisylyn T. Sto. Tomas, a Filipina, in Pasig City.[4] Due to work and other
professional commitments, Gerbert left for Canada soon after the wedding. He returned to
the Philippines sometime in April 2005 to surprise Daisylyn, but was shocked to discover that
his wife was having an affair with another man. Hurt and disappointed, Gerbert returned
to Canada and filed a petition for divorce. The Superior Court of
Justice, Windsor, Ontario, Canada granted Gerberts petition for divorce on December 8,
2005. The divorce decree took effect a month later, on January 8, 2006.[5]

Two years after the divorce, Gerbert has moved on and has found another Filipina to
love. Desirous of marrying his new Filipina fiance in the Philippines, Gerbert went to the Pasig
City Civil Registry Office and registered the Canadian divorce decree on his and Daisylyns
marriage certificate. Despite the registration of the divorce decree, an official of the National
Statistics Office (NSO) informed Gerbert that the marriage between him and Daisylyn still
subsists under Philippine law; to be enforceable, the foreign divorce decree must first be
judicially recognized by a competent Philippine court, pursuant to NSO Circular No. 4, series of
1982.[6]

Accordingly, Gerbert filed a petition for judicial recognition of foreign divorce

and/or declaration of marriage as dissolved (petition) with the RTC. Although summoned,
Daisylyn did not file any responsive pleading but submitted instead a notarized
letter/manifestation to the trial court. She offered no opposition to Gerberts petition and, in fact,
alleged her desire to file a similar case herself but was prevented by financial and personal
circumstances. She, thus, requested that she be considered as a party-in-interest with a similar
prayer to Gerberts.

In its October 30, 2008 decision,[7] the RTC denied Gerberts petition. The RTC
concluded that Gerbert was not the proper party to institute the action for judicial recognition of
the foreign divorce decree as he is a naturalized Canadian citizen. It ruled that only the Filipino
spouse can avail of the remedy, under the second paragraph of Article 26 of the Family
Code,[8] in order for him or her to be able to remarry under Philippine law. [9] Article 26 of the
Family Code reads:

Art. 26. All marriages solemnized outside the Philippines, in accordance

with the laws in force in the country where they were solemnized, and valid there
as such, shall also be valid in this country, except those prohibited under Articles
35(1), (4), (5) and (6), 36, 37 and 38.

Where a marriage between a Filipino citizen and a foreigner is

validly celebrated and a divorce is thereafter validly obtained abroad by the
alien spouse capacitating him or her to remarry, the Filipino spouse shall
likewise have capacity to remarry under Philippine law.

This conclusion, the RTC stated, is consistent with the legislative intent behind the enactment of
the second paragraph of Article 26 of the Family Code, as determined by the Court in Republic
v. Orbecido III;[10] the provision was enacted to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married
to the Filipino spouse.[11]

THE PETITION

From the RTCs ruling,[12] Gerbert filed the present petition.[13]

Gerbert asserts that his petition before the RTC is essentially for declaratory relief,
similar to that filed in Orbecido; he, thus, similarly asks for a determination of his rights under
the second paragraph of Article 26 of the Family Code. Taking into account the rationale behind
the second paragraph of Article 26 of the Family Code, he contends that the provision applies
as well to the benefit of the alien spouse. He claims that the RTC ruling unduly stretched the
doctrine in Orbecido by limiting the standing to file the petition only to the Filipino spouse an
interpretation he claims to be contrary to the essence of the second paragraph of Article 26 of
the Family Code. He considers himself as a proper party, vested with sufficient legal interest, to
institute the case, as there is a possibility that he might be prosecuted for bigamy if he marries
his Filipina fiance in the Philippines since two marriage certificates, involving him, would be on
file with the Civil Registry Office. The Office of the Solicitor General and Daisylyn, in their
respective Comments,[14] both support Gerberts position.
Essentially, the petition raises the issue of whether the second paragraph of Article 26 of the
Family Code extends to aliens the right to petition a court of this jurisdiction for the
recognition of a foreign divorce decree.
THE COURTS RULING

The alien spouse can claim no right under the

second paragraph of Article 26 of the Family
Code as the substantive right it establishes is in
favor of the Filipino spouse

The resolution of the issue requires a review of the legislative history and intent behind the
second paragraph of Article 26 of the Family Code.

The Family Code recognizes only two types of defective marriages void[15] and
voidable[16] marriages. In both cases, the basis for the judicial declaration of absolute nullity or
annulment of the marriage exists before or at the time of the marriage. Divorce, on the other
hand, contemplates the dissolution of the lawful union for cause arising after the
marriage.[17] Our family laws do not recognize absolute divorce between Filipino citizens.[18]
Recognizing the reality that divorce is a possibility in marriages between a Filipino and
an alien, President Corazon C. Aquino, in the exercise of her legislative powers under the
Freedom Constitution,[19] enacted Executive Order No. (EO) 227, amending Article 26 of the
Family Code to its present wording, as follows:

Art. 26. All marriages solemnized outside the Philippines, in accordance

with the laws in force in the country where they were solemnized, and valid there
as such, shall also be valid in this country, except those prohibited under Articles
35(1), (4), (5) and (6), 36, 37 and 38.

Where a marriage between a Filipino citizen and a foreigner is

validly celebrated and a divorce is thereafter validly obtained abroad by the
alien spouse capacitating him or her to remarry, the Filipino spouse shall
likewise have capacity to remarry under Philippine law.

Through the second paragraph of Article 26 of the Family Code, EO 227 effectively incorporated
into the law this Courts holding in Van Dorn v. Romillo, Jr.[20] and Pilapil v. Ibay-Somera.[21] In
both cases, the Court refused to acknowledge the alien spouses assertion of marital rights after
a foreign courts divorce decree between the alien and the Filipino. The Court, thus, recognized
that the foreign divorce had already severed the marital bond between the spouses. The Court
reasoned in Van Dorn v. Romillo that:

To maintain x x x that, under our laws, [the Filipino spouse] has to be

considered still married to [the alien spouse] and still subject to a wife's
obligations x x x cannot be just. [The Filipino spouse] should not be obliged to
live together with, observe respect and fidelity, and render support to [the alien
spouse]. The latter should not continue to be one of her heirs with possible rights
to conjugal property. She should not be discriminated against in her own
country if the ends of justice are to be served.[22]

As the RTC correctly stated, the provision was included in the law to avoid the absurd
situation where the Filipino spouse remains married to the alien spouse who, after obtaining a
divorce, is no longer married to the Filipino spouse.[23] The legislative intent is for the benefit of
the Filipino spouse, by clarifying his or her marital status, settling the doubts created by the
divorce decree. Essentially, the second paragraph of Article 26 of the Family Code
provided the Filipino spouse a substantive right to have his or her marriage to the alien
spouse considered as dissolved, capacitating him or her to remarry.[24] Without the second
paragraph of Article 26 of the Family Code, the judicial recognition of the foreign decree of
divorce, whether in a proceeding instituted precisely for that purpose or as a related issue in
another proceeding, would be of no significance to the Filipino spouse since our laws do not
recognize divorce as a mode of severing the marital bond;[25] Article 17 of the Civil Code
provides that the policy against absolute divorces cannot be subverted by judgments
promulgated in a foreign country. The inclusion of the second paragraph in Article 26 of the
Family Code provides the direct exception to this rule and serves as basis for recognizing the
dissolution of the marriage between the Filipino spouse and his or her alien spouse.

Additionally, an action based on the second paragraph of Article 26 of the Family Code is not
limited to the recognition of the foreign divorce decree. If the court finds that the decree
capacitated the alien spouse to remarry, the courts can declare that the Filipino spouse is
likewise capacitated to contract another marriage. No court in this jurisdiction, however, can
make a similar declaration for the alien spouse (other than that already established by the
decree), whose status and legal capacity are generally governed by his national law.[26]

Given the rationale and intent behind the enactment, and the purpose of the second
paragraph of Article 26 of the Family Code, the RTC was correct in limiting the applicability of
the provision for the benefit of the Filipino spouse. In other words, only the Filipino spouse can
invoke the second paragraph of Article 26 of the Family Code; the alien spouse can claim no
right under this provision.

The foreign divorce decree is presumptive

evidence of a right that clothes the party with
legal interest to petition for its recognition in
this jurisdiction

We qualify our above conclusion i.e., that the second paragraph of Article 26 of the
Family Code bestows no rights in favor of aliens with the complementary statement that this
conclusion is not sufficient basis to dismiss Gerberts petition before the RTC. In other words,
the unavailability of the second paragraph of Article 26 of the Family Code to aliens does not
necessarily strip Gerbert of legal interest to petition the RTC for the recognition of his foreign
divorce decree. The foreign divorce decree itself, after its authenticity and conformity with the
aliens national law have been duly proven according to our rules of evidence, serves as a
presumptive evidence of right in favor of Gerbert, pursuant to Section 48, Rule 39 of the Rules
of Court which provides for the effect of foreign judgments. This Section states:

SEC. 48. Effect of foreign judgments or final orders.The effect of a

judgment or final order of a tribunal of a foreign country, having
jurisdiction to render the judgment or final order is as follows:

(a) In case of a judgment or final order upon a specific thing, the

judgment or final order is conclusive upon the title of the thing; and
 (b) In case of a judgment or final order against a person, the
judgment or final order is presumptive evidence of a right as
between the parties and their successors in interest by a
subsequent title.

In either case, the judgment or final order may be repelled by evidence of

a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake
of law or fact.

To our mind, direct involvement or being the subject of the foreign judgment is sufficient to
clothe a party with the requisite interest to institute an action before our courts for the
recognition of the foreign judgment. In a divorce situation, we have declared, no less, that the
divorce obtained by an alien abroad may be recognized in the Philippines, provided the divorce
is valid according to his or her national law.[27]

The starting point in any recognition of a foreign divorce judgment is the

acknowledgment that our courts do not take judicial notice of foreign judgments and
laws. Justice Herrera explained that, as a rule, no sovereign is bound to give effect within its
dominion to a judgment rendered by a tribunal of another country.[28] This means that the foreign
judgment and its authenticity must be proven as facts under our rules on evidence, together with
the aliens applicable national law to show the effect of the judgment on the alien himself or
herself.[29] The recognition may be made in an action instituted specifically for the purpose or in
another action where a party invokes the foreign decree as an integral aspect of his claim or
defense.

In Gerberts case, since both the foreign divorce decree and the national law of the alien,
recognizing his or her capacity to obtain a divorce, purport to be official acts of a sovereign
authority, Section 24, Rule 132 of the Rules of Court comes into play. This Section requires
proof, either by (1) official publications or (2) copies attested by the officer having legal custody
of the documents. If the copies of official records are not kept in the Philippines, these must be
(a) accompanied by a certificate issued by the proper diplomatic or consular officer in the
Philippine foreign service stationed in the foreign country in which the record is kept and (b)
authenticated by the seal of his office.

The records show that Gerbert attached to his petition a copy of the divorce decree, as
well as the required certificates proving its authenticity,[30] but failed to include a copy of the
Canadian law on divorce.[31] Under this situation, we can, at this point, simply dismiss the
petition for insufficiency of supporting evidence, unless we deem it more appropriate to remand
the case to the RTC to determine whether the divorce decree is consistent with the Canadian
divorce law.

We deem it more appropriate to take this latter course of action, given the Article 26
interests that will be served and the Filipina wifes (Daisylyns) obvious conformity with the
petition. A remand, at the same time, will allow other interested parties to oppose the foreign
judgment and overcome a petitioners presumptive evidence of a right by proving want of
jurisdiction, want of notice to a party, collusion, fraud, or clear mistake of law or fact. Needless
to state, every precaution must be taken to ensure conformity with our laws before a recognition
is made, as the foreign judgment, once recognized, shall have the effect of res
judicata[32] between the parties, as provided in Section 48, Rule 39 of the Rules of Court.[33]
 In fact, more than the principle of comity that is served by the practice of reciprocal
recognition of foreign judgments between nations, the res judicata effect of the foreign
judgments of divorce serves as the deeper basis for extending judicial recognition and for
considering the alien spouse bound by its terms. This same effect, as discussed above, will not
obtain for the Filipino spouse were it not for the substantive rule that the second paragraph of
Article 26 of the Family Code provides.

Considerations beyond the recognition of the

foreign divorce decree
As a matter of housekeeping concern, we note that the Pasig City Civil Registry Office
has already recorded the divorce decree on Gerbert and Daisylyns marriage certificate
based on the mere presentation of the decree.[34] We consider the recording to be legally
improper; hence, the need to draw attention of the bench and the bar to what had been done.

Article 407 of the Civil Code states that [a]cts, events and judicial decrees concerning the civil
status of persons shall be recorded in the civil register. The law requires the entry in the civil
registry of judicial decrees that produce legal consequences touching upon a persons legal
capacity and status, i.e., those affecting all his personal qualities and relations, more or less
permanent in nature, not ordinarily terminable at his own will, such as his being legitimate or
illegitimate, or his being married or not.[35]

A judgment of divorce is a judicial decree, although a foreign one, affecting a persons

legal capacity and status that must be recorded. In fact, Act No. 3753 or the Law on Registry of
Civil Status specifically requires the registration of divorce decrees in the civil registry:

Sec. 1. Civil Register. A civil register is established for recording the civil
status of persons, in which shall be entered:

(a) births;
(b) deaths;
(c) marriages;
(d) annulments of marriages;
(e) divorces;
(f) legitimations;
(g) adoptions;
(h) acknowledgment of natural children;
(i) naturalization; and
(j) changes of name.

xxxx

Sec. 4. Civil Register Books. The local registrars shall keep and preserve in
their offices the following books, in which they shall, respectively make the proper
entries concerning the civil status of persons:

(1) Birth and death register;

(2) Marriage register, in which shall be entered not only the

marriages solemnized but also divorces and dissolved marriages.
 (3) Legitimation, acknowledgment, adoption, change of name and
naturalization register.

But while the law requires the entry of the divorce decree in the civil registry, the law and the
submission of the decree by themselves do not ipso facto authorize the
decrees registration. The law should be read in relation with the requirement of a judicial
recognition of the foreign judgment before it can be given res judicata effect. In the context of
the present case, no judicial order as yet exists recognizing the foreign divorce decree. Thus,
the Pasig City Civil Registry Office acted totally out of turn and without authority of law when it
annotated the Canadian divorce decree on Gerbert and Daisylyns marriage certificate, on the
strength alone of the foreign decree presented by Gerbert.

Evidently, the Pasig City Civil Registry Office was aware of the requirement of a court
recognition, as it cited NSO Circular No. 4, series of 1982, [36] and Department of Justice Opinion
No. 181, series of 1982[37] both of which required a final order from a competent Philippine
court before a foreign judgment, dissolving a marriage, can be registered in the civil registry, but
it, nonetheless, allowed the registration of the decree. For being contrary to law, the registration
of the foreign divorce decree without the requisite judicial recognition is patently void and cannot
produce any legal effect.

Another point we wish to draw attention to is that the recognition that the RTC may
extend to the Canadian divorce decree does not, by itself, authorize the cancellation of the
entry in the civil registry. A petition for recognition of a foreign judgment is not the proper
proceeding, contemplated under the Rules of Court, for the cancellation of entries in the civil
registry.

Article 412 of the Civil Code declares that no entry in a civil register shall be changed or
corrected, without judicial order. The Rules of Court supplements Article 412 of the Civil Code
by specifically providing for a special remedial proceeding by which entries in the civil registry
may be judicially cancelled or corrected. Rule 108 of the Rules of Court sets in detail the
jurisdictional and procedural requirements that must be complied with before a judgment,
authorizing the cancellation or correction, may be annotated in the civil registry. It also requires,
among others, that the verified petition must be filed with the RTC of the province where the
corresponding civil registry is located;[38] that the civil registrar and all persons who have or
claim any interest must be made parties to the proceedings;[39] and that the time and place for
hearing must be published in a newspaper of general circulation.[40] As these basic jurisdictional
requirements have not been met in the present case, we cannot consider the petition Gerbert
filed with the RTC as one filed under Rule 108 of the Rules of Court.

We hasten to point out, however, that this ruling should not be construed as requiring two
separate proceedings for the registration of a foreign divorce decree in the civil registry one for
recognition of the foreign decree and another specifically for cancellation of the entry under Rule
108 of the Rules of Court. The recognition of the foreign divorce decree may be made in a Rule
108 proceeding itself, as the object of special proceedings (such as that in Rule 108 of the
Rules of Court) is precisely to establish the status or right of a party or a particular
fact. Moreover, Rule 108 of the Rules of Court can serve as the appropriate adversarial
proceeding[41] by which the applicability of the foreign judgment can be measured and tested in
terms of jurisdictional infirmities, want of notice to the party, collusion, fraud, or clear mistake of
law or fact.
 WHEREFORE, we GRANT the petition for review on certiorari,
and REVERSE the October 30, 2008 decision of the Regional Trial Court of Laoag City, Branch
11, as well as its February 17, 2009 order. We order the REMAND of the case to the trial court
for further proceedings in accordance with our ruling above. Let a copy of this Decision be
furnished the Civil Registrar General. No costs.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

CONCHITA CARPIO MORALES

Associate Justice

LUCAS P. BERSAMIN ROBERTO A. ABAD

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

CONCHITA CARPIO MORALES

Associate Justice
Chairperson
CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons
Attestation, it is hereby certified that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Courts Division.

RENATO C. CORONA
Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 80116 June 30, 1989

IMELDA MANALAYSAY PILAPIL, petitioner,

vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial
Court of Manila, Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the City Fiscal of
Manila; and ERICH EKKEHARD GEILING, respondents.

REGALADO, J.:

An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce,
only to be followed by a criminal infidelity suit of the latter against the former, provides Us the
opportunity to lay down a decisional rule on what hitherto appears to be an unresolved
jurisdictional question.

On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private
respondent Erich Ekkehard Geiling, a German national, were married before the Registrar of
Births, Marriages and Deaths at Friedensweiler in the Federal Republic of Germany. The
marriage started auspiciously enough, and the couple lived together for some time in Malate,
Manila where their only child, Isabella Pilapil Geiling, was born on April 20, 1980. 1

Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by
a separation de facto between them.

After about three and a half years of marriage, such connubial disharmony eventuated in private
respondent initiating a divorce proceeding against petitioner in Germany before the Schoneberg
Local Court in January, 1983. He claimed that there was failure of their marriage and that they
had been living apart since April, 1982. 2

Petitioner, on the other hand, filed an action for legal separation, support and separation of
property before the Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where
the same is still pending as Civil Case No. 83-15866. 3

On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany,
promulgated a decree of divorce on the ground of failure of marriage of the spouses. The
custody of the child was granted to petitioner. The records show that under German law said
court was locally and internationally competent for the divorce proceeding and that the
dissolution of said marriage was legally founded on and authorized by the applicable law of that
foreign jurisdiction. 4
On June 27, 1986, or more than five months after the issuance of the divorce decree, private
respondent filed two complaints for adultery before the City Fiscal of Manila alleging that, while
still married to said respondent, petitioner "had an affair with a certain William Chia as early as
1982 and with yet another man named Jesus Chua sometime in 1983". Assistant Fiscal Jacinto
A. de los Reyes, Jr., after the corresponding investigation, recommended the dismissal of the
cases on the ground of insufficiency of evidence. 5 However, upon review, the respondent city
fiscal approved a resolution, dated January 8, 1986, directing the filing of two complaints for
adultery against the petitioner. 6 The complaints were accordingly filed and were eventually
raffled to two branches of the Regional Trial Court of Manila. The case entitled "People of the
Philippines vs. Imelda Pilapil and William Chia", docketed as Criminal Case No. 87-52435, was
assigned to Branch XXVI presided by the respondent judge; while the other case, "People of the
Philippines vs. Imelda Pilapil and James Chua", docketed as Criminal Case No. 87-52434 went
to the sala of Judge Leonardo Cruz, Branch XXV, of the same court. 7

On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the
aforesaid resolution of respondent fiscal be set aside and the cases against her be
dismissed. 8 A similar petition was filed by James Chua, her co-accused in Criminal Case No.
87-52434. The Secretary of Justice, through the Chief State Prosecutor, gave due course to
both petitions and directed the respondent city fiscal to inform the Department of Justice "if the
accused have already been arraigned and if not yet arraigned, to move to defer further
proceedings" and to elevate the entire records of both cases to his office for review. 9

Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to
suspend further proceedings thereon. 10 As a consequence, Judge Leonardo Cruz suspended
proceedings in Criminal Case No. 87-52434. On the other hand, respondent judge merely reset
the date of the arraignment in Criminal Case No. 87-52435 to April 6, 1987. Before such
scheduled date, petitioner moved for the cancellation of the arraignment and for the suspension
of proceedings in said Criminal Case No. 87-52435 until after the resolution of the petition for
review then pending before the Secretary of Justice. 11 A motion to quash was also filed in the
same case on the ground of lack of jurisdiction, 12 which motion was denied by the respondent
judge in an order dated September 8, 1987. The same order also directed the arraignment of
both accused therein, that is, petitioner and William Chia. The latter entered a plea of not guilty
while the petitioner refused to be arraigned. Such refusal of the petitioner being considered by
respondent judge as direct contempt, she and her counsel were fined and the former was
ordered detained until she submitted herself for arraignment. 13 Later, private respondent
entered a plea of not guilty. 14

On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a
prayer for a temporary restraining order, seeking the annulment of the order of the lower court
denying her motion to quash. The petition is anchored on the main ground that the court is
without jurisdiction "to try and decide the charge of adultery, which is a private offense that
cannot be prosecuted de officio (sic), since the purported complainant, a foreigner, does not
qualify as an offended spouse having obtained a final divorce decree under his national law
prior to his filing the criminal complaint." 15

On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents
from implementing the aforesaid order of September 8, 1987 and from further proceeding with
Criminal Case No. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A.
Ordoez acted on the aforesaid petitions for review and, upholding petitioner's ratiocinations,
issued a resolution directing the respondent city fiscal to move for the dismissal of the
complaints against the petitioner. 16

We find this petition meritorious. The writs prayed for shall accordingly issue.

Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four other
crimes against chastity, cannot be prosecuted except upon a sworn written complaint filed by
the offended spouse. It has long since been established, with unwavering consistency, that
compliance with this rule is a jurisdictional, and not merely a formal, requirement. 18 While in
point of strict law the jurisdiction of the court over the offense is vested in it by the Judiciary Law,
the requirement for a sworn written complaint is just as jurisdictional a mandate since it is that
complaint which starts the prosecutory proceeding 19 and without which the court cannot
exercise its jurisdiction to try the case.

Now, the law specifically provides that in prosecutions for adultery and concubinage the person
who can legally file the complaint should be the offended spouse, and nobody else. Unlike the
offenses of seduction, abduction, rape and acts of lasciviousness, no provision is made for the
prosecution of the crimes of adultery and concubinage by the parents, grandparents or guardian
of the offended party. The so-called exclusive and successive rule in the prosecution of the first
four offenses above mentioned do not apply to adultery and concubinage. It is significant that
while the State, as parens patriae, was added and vested by the 1985 Rules of Criminal
Procedure with the power to initiate the criminal action for a deceased or incapacitated victim in
the aforesaid offenses of seduction, abduction, rape and acts of lasciviousness, in default of her
parents, grandparents or guardian, such amendment did not include the crimes of adultery and
concubinage. In other words, only the offended spouse, and no other, is authorized by law to
initiate the action therefor.

Corollary to such exclusive grant of power to the offended spouse to institute the action, it
necessarily follows that such initiator must have the status, capacity or legal representation to
do so at the time of the filing of the criminal action. This is a familiar and express rule in civil
actions; in fact, lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is
determined as of the filing of the complaint or petition.

The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean
that the same requirement and rationale would not apply. Understandably, it may not have been
found necessary since criminal actions are generally and fundamentally commenced by the
State, through the People of the Philippines, the offended party being merely the complaining
witness therein. However, in the so-called "private crimes" or those which cannot be
prosecuted de oficio, and the present prosecution for adultery is of such genre, the offended
spouse assumes a more predominant role since the right to commence the action, or to refrain
therefrom, is a matter exclusively within his power and option.

This policy was adopted out of consideration for the aggrieved party who might prefer to suffer
the outrage in silence rather than go through the scandal of a public trial. 20 Hence, as cogently
argued by petitioner, Article 344 of the Revised Penal Code thus presupposes that the marital
relationship is still subsisting at the time of the institution of the criminal action for, adultery. This
is a logical consequence since the raison d'etre of said provision of law would be absent where
the supposed offended party had ceased to be the spouse of the alleged offender at the time of
the filing of the criminal case. 21
In these cases, therefore, it is indispensable that the status and capacity of the complainant to
commence the action be definitely established and, as already demonstrated, such status or
capacity must indubitably exist as of the time he initiates the action. It would be absurd if his
capacity to bring the action would be determined by his status beforeor subsequent to the
commencement thereof, where such capacity or status existed prior to but ceased before, or
was acquired subsequent to but did not exist at the time of, the institution of the case. We would
thereby have the anomalous spectacle of a party bringing suit at the very time when he is
without the legal capacity to do so.

To repeat, there does not appear to be any local precedential jurisprudence on the specific
issue as to when precisely the status of a complainant as an offended spouse must exist where
a criminal prosecution can be commenced only by one who in law can be categorized as
possessed of such status. Stated differently and with reference to the present case, the inquiry
;would be whether it is necessary in the commencement of a criminal action for adultery that the
marital bonds between the complainant and the accused be unsevered and existing at the time
of the institution of the action by the former against the latter.

American jurisprudence, on cases involving statutes in that jurisdiction which are in pari
materia with ours, yields the rule that after a divorce has been decreed, the innocent spouse no
longer has the right to institute proceedings against the offenders where the statute provides
that the innocent spouse shall have the exclusive right to institute a prosecution for adultery.
Where, however, proceedings have been properly commenced, a divorce subsequently granted
can have no legal effect on the prosecution of the criminal proceedings to a conclusion. 22

In the cited Loftus case, the Supreme Court of Iowa held that

'No prosecution for adultery can be commenced except on the complaint of the
husband or wife.' Section 4932, Code. Though Loftus was husband of defendant
when the offense is said to have been committed, he had ceased to be such
when the prosecution was begun; and appellant insists that his status was not
such as to entitle him to make the complaint. We have repeatedly said that the
offense is against the unoffending spouse, as well as the state, in explaining the
reason for this provision in the statute; and we are of the opinion that the
unoffending spouse must be such when the prosecution is commenced.
(Emphasis supplied.)

We see no reason why the same doctrinal rule should not apply in this case and in our
jurisdiction, considering our statutory law and jural policy on the matter. We are convinced that
in cases of such nature, the status of the complainant vis-a-vis the accused must be determined
as of the time the complaint was filed. Thus, the person who initiates the adultery case must be
an offended spouse, and by this is meant that he is still married to the accused spouse, at the
time of the filing of the complaint.

In the present case, the fact that private respondent obtained a valid divorce in his country, the
Federal Republic of Germany, is admitted. Said divorce and its legal effects may be recognized
in the Philippines insofar as private respondent is concerned 23 in view of the nationality
principle in our civil law on the matter of status of persons.

Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was granted by a
United States court between Alice Van Dornja Filipina, and her American husband, the latter
filed a civil case in a trial court here alleging that her business concern was conjugal property
and praying that she be ordered to render an accounting and that the plaintiff be granted the
right to manage the business. Rejecting his pretensions, this Court perspicuously demonstrated
the error of such stance, thus:

There can be no question as to the validity of that Nevada divorce in any of the
States of the United States. The decree is binding on private respondent as an
American citizen. For instance, private respondent cannot sue petitioner, as her
husband, in any State of the Union. ...

It is true that owing to the nationality principle embodied in Article 15 of the Civil
Code, only Philippine nationals are covered by the policy against absolute
divorces the same being considered contrary to our concept of public policy and
morality. However, aliens may obtain divorces abroad, which may be recognized
in the Philippines, provided they are valid according to their national law. ...

Thus, pursuant to his national law, private respondent is no longer the husband
of petitioner. He would have no standing to sue in the case below as petitioner's
husband entitled to exercise control over conjugal assets. ... 25

Under the same considerations and rationale, private respondent, being no longer the husband
of petitioner, had no legal standing to commence the adultery case under the imposture that he
was the offended spouse at the time he filed suit.

The allegation of private respondent that he could not have brought this case before the decree
of divorce for lack of knowledge, even if true, is of no legal significance or consequence in this
case. When said respondent initiated the divorce proceeding, he obviously knew that there
would no longer be a family nor marriage vows to protect once a dissolution of the marriage is
decreed. Neither would there be a danger of introducing spurious heirs into the family, which is
said to be one of the reasons for the particular formulation of our law on adultery, 26 since there
would thenceforth be no spousal relationship to speak of. The severance of the marital bond
had the effect of dissociating the former spouses from each other, hence the actuations of one
would not affect or cast obloquy on the other.

The aforecited case of United States vs. Mata cannot be successfully relied upon by private
respondent. In applying Article 433 of the old Penal Code, substantially the same as Article 333
of the Revised Penal Code, which punished adultery "although the marriage be afterwards
declared void", the Court merely stated that "the lawmakers intended to declare adulterous the
infidelity of a married woman to her marital vows, even though it should be made to appear that
she is entitled to have her marriage contract declared null and void, until and unless she actually
secures a formal judicial declaration to that effect". Definitely, it cannot be logically inferred
therefrom that the complaint can still be filed after the declaration of nullity because such
declaration that the marriage is void ab initio is equivalent to stating that it never existed. There
being no marriage from the beginning, any complaint for adultery filed after said declaration of
nullity would no longer have a leg to stand on. Moreover, what was consequently contemplated
and within the purview of the decision in said case is the situation where the criminal action for
adultery was filed beforethe termination of the marriage by a judicial declaration of its nullity ab
initio. The same rule and requisite would necessarily apply where the termination of the
marriage was effected, as in this case, by a valid foreign divorce.
Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, 27 must
suffer the same fate of inapplicability. A cursory reading of said case reveals that the offended
spouse therein had duly and seasonably filed a complaint for adultery, although an issue was
raised as to its sufficiency but which was resolved in favor of the complainant. Said case did not
involve a factual situation akin to the one at bar or any issue determinative of the controversy
herein.

WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and
another one entered DISMISSING the complaint in Criminal Case No. 87-52435 for lack of
jurisdiction. The temporary restraining order issued in this case on October 21, 1987 is hereby
made permanent.

SO ORDERED.

Melencio-Herrera, Padilla and Sarmiento, JJ., concur.

Separate Opinions

PARAS, J., concurring:

It is my considered opinion that regardless of whether We consider the German absolute

divorce as valid also in the Philippines, the fact is that the husband in the instant case, by the
very act of his obtaining an absolute divorce in Germany can no longer be considered as the
offended party in case his former wife actually has carnal knowledge with another, because in
divorcing her, he already implicitly authorized the woman to have sexual relations with others. A
contrary ruling would be less than fair for a man, who is free to have sex will be allowed to
deprive the woman of the same privilege.

In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the
absolute divorce between the American husband and his American wife as valid and binding in
the Philippines on the theory that their status and capacity are governed by their National law,
namely, American law. There is no decision yet of the Supreme Court regarding the validity of
such a divorce if one of the parties, say an American, is married to a Filipino wife, for then two
(2) different nationalities would be involved.

In the book of Senate President Jovito Salonga entitled Private International Law and precisely
because of the National law doctrine, he considers the absolute divorce as valid insofar as the
American husband is concerned but void insofar as the Filipino wife is involved. This results in
what he calls a "socially grotesque situation," where a Filipino woman is still married to a man
who is no longer her husband. It is the opinion however, of the undersigned that very likely the
opposite expresses the correct view. While under the national law of the husband the absolute
divorce will be valid, still one of the exceptions to the application of the proper foreign law (one
of the exceptions to comity) is when the foreign law will work an injustice or injury to the people
or residents of the forum. Consequently since to recognize the absolute divorce as valid on the
part of the husband would be injurious or prejudicial to the Filipino wife whose marriage would
be still valid under her national law, it would seem that under our law existing before the new
Family Code (which took effect on August 3, 1988) the divorce should be considered void both
with respect to the American husband and the Filipino wife.

The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact
that the husband was an American can with a Filipino wife because in said case the validity of
the divorce insofar as the Filipino wife is concerned was NEVER put in issue.

Separate Opinions

PARAS, J., concurring:

It is my considered opinion that regardless of whether We consider the German absolute

divorce as valid also in the Philippines, the fact is that the husband in the instant case, by the
very act of his obtaining an absolute divorce in Germany can no longer be considered as the
offended party in case his former wife actually has carnal knowledge with another, because in
divorcing her, he already implicitly authorized the woman to have sexual relations with others. A
contrary ruling would be less than fair for a man, who is free to have sex will be allowed to
deprive the woman of the same privilege.

In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the
absolute divorce between the American husband and his American wife as valid and binding in
the Philippines on the theory that their status and capacity are governed by their National law,
namely, American law. There is no decision yet of the Supreme Court regarding the validity of
such a divorce if one of the parties, say an American, is married to a Filipino wife, for then two
(2) different nationalities would be involved.

In the book of Senate President Jovito Salonga entitled Private International Law and precisely
because of the National law doctrine, he considers the absolute divorce as valid insofar as the
American husband is concerned but void insofar as the Filipino wife is involved. This results in
what he calls a "socially grotesque situation," where a Filipino woman is still married to a man
who is no longer her husband. It is the opinion however, of the undersigned that very likely the
opposite expresses the correct view. While under the national law of the husband the absolute
divorce will be valid, still one of the exceptions to the application of the proper foreign law (one
of the exceptions to comity) is when the foreign law will work an injustice or injury to the people
or residents of the forum. Consequently since to recognize the absolute divorce as valid on the
part of the husband would be injurious or prejudicial to the Filipino wife whose marriage would
be still valid under her national law, it would seem that under our law existing before the new
Family Code (which took effect on August 3, 1988) the divorce should be considered void both
with respect to the American husband and the Filipino wife.

The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact
that the husband was an American can with a Filipino wife because in said case the validity of
the divorce insofar as the Filipino wife is concerned was NEVER put in issue.
 G.R. No. 142820

June 20, 2003

WOLFGANG O. ROEHR, petitioner,

vs.
MARIA CARMEN D. RODRIGUEZ, HON. JUDGE JOSEFINA GUEVARA-SALONGA,
Presiding Judge of Makati RTC, Branch 149, respondents.

QUISUMBING, J.:

At the core of the present controversy are issues of (a) grave abuse of discretion allegedly
committed by public respondent and (b) lack of jurisdiction of the regional trial court, in matters
that spring from a divorce decree obtained abroad by petitioner.

In this special civil action for certiorari, petitioner assails (a) the order1 dated September 30,
1999 of public respondent Judge Josefina Guevara-Salonga, Presiding Judge of Makati
Regional Trial Court,2 Branch 149, in Civil Case No. 96-1389 for declaration of nullity of
marriage, and (b) the order3 dated March 31, 2000 denying his motion for reconsideration. The
assailed orders partially set aside the trial courts order dismissing Civil Case No. 96-1389, for
the purpose of resolving issues relating to the property settlement of the spouses and the
custody of their children.

Petitioner Wolfgang O. Roehr, a German citizen and resident of Germany, married private
respondent Carmen Rodriguez, a Filipina, on December 11, 1980 in Hamburg, Germany. Their
marriage was subsequently ratified on February 14, 1981 in Tayasan, Negros Oriental. 4 Out of
their union were born Carolynne and Alexandra Kristine on November 18, 1981 and October 25,
1987, respectively.

On August 28, 1996, private respondent filed a petition5 for declaration of nullity of marriage
before the Regional Trial Court (RTC) of Makati City. On February 6, 1997, petitioner filed a
motion to dismiss,6 but it was denied by the trial court in its order7 dated May 28, 1997.

On June 5, 1997, petitioner filed a motion for reconsideration, but was also denied in an
order8 dated August 13, 1997. On September 5, 1997, petitioner filed a petition for certiorari with
the Court of Appeals. On November 27, 1998, the appellate court denied the petition and
remanded the case to the RTC.

Meanwhile, petitioner obtained a decree of divorce from the Court of First Instance of Hamburg-
Blankenese, promulgated on December 16, 1997.

The decree provides in part:

[T]he Court of First Instance, Hamburg-Blankenese, Branch 513, has ruled through
Judge van Buiren of the Court of First Instance on the basis of the oral proceedings held
on 4 Nov. 1997:

The marriage of the Parties contracted on 11 December 1980 before the Civil Registrar
of Hamburg-Altona is hereby dissolved.
 The parental custody for the children

Carolynne Roehr, born 18 November 1981

Alexandra Kristine Roehr, born on 25 October 1987

is granted to the father.

The litigation expenses shall be assumed by the Parties.9

In view of said decree, petitioner filed a Second Motion to Dismiss on May 20, 1999 on the
ground that the trial court had no jurisdiction over the subject matter of the action or suit as a
decree of divorce had already been promulgated dissolving the marriage of petitioner and
private respondent.

On July 14, 1999, Judge Guevara-Salonga issued an order granting petitioners motion to
dismiss. Private respondent filed a Motion for Partial Reconsideration, with a prayer that the
case proceed for the purpose of determining the issues of custody of children and the
distribution of the properties between petitioner and private respondent.

On August 18, 1999, an Opposition to the Motion for Partial Reconsideration was filed by the
petitioner on the ground that there is nothing to be done anymore in the instant case as the
marital tie between petitioner Wolfgang Roehr and respondent Ma. Carmen D. Rodriguez had
already been severed by the decree of divorce promulgated by the Court of First Instance of
Hamburg, Germany on December 16, 1997 and in view of the fact that said decree of divorce
had already been recognized by the RTC in its order of July 14, 1999, through the
implementation of the mandate of Article 26 of the Family Code,10 endowing the petitioner with
the capacity to remarry under the Philippine law.

On September 30, 1999, respondent judge issued the assailed order partially setting aside her
order dated July 14, 1999 for the purpose of tackling the issues of property relations of the
spouses as well as support and custody of their children. The pertinent portion of said order
provides:

Acting on the Motion for Partial Reconsideration of the Order dated July 14, 1999 filed by
petitioner thru counsel which was opposed by respondent and considering that the
second paragraph of Article 26 of the Family Code was included as an amendment thru
Executive Order 227, to avoid the absurd situation of a Filipino as being still married to
his or her alien spouse though the latter is no longer married to the Filipino spouse
because he/she had obtained a divorce abroad which is recognized by his/her national
law, and considering further the effects of the termination of the marriage under Article
43 in relation to Article 50 and 52 of the same Code, which include the dissolution of the
property relations of the spouses, and the support and custody of their children, the
Order dismissing this case is partially set aside with respect to these matterswhich may
be ventilated in this Court.

SO ORDERED.11 (Emphasis supplied.)

Petitioner filed a timely motion for reconsideration on October 19, 1999, which was denied by
respondent judge in an order dated March 31, 2000.12
Petitioner ascribes lack of jurisdiction of the trial court and grave abuse of discretion on the part
of respondent judge. He cites as grounds for his petition the following:

1. Partially setting aside the order dated July 14, 1999 dismissing the instant case is not
allowed by 1997 Rules of Civil Procedure.13

2. Respondent Maria Carmen Rodriguez by her motion for Partial Reconsideration had
recognized and admitted the Divorce Decision obtained by her ex-husband in Hamburg,
Germany.14

3. There is nothing left to be tackled by the Honorable Court as there are no conjugal
assets alleged in the Petition for Annulment of Marriage and in the Divorce petition, and
the custody of the children had already been awarded to Petitioner Wolfgang Roehr.15

Pertinent in this case before us are the following issues:

1. Whether or not respondent judge gravely abused her discretion in issuing her order
dated September 30, 1999, which partially modified her order dated July 14, 1999; and

2. Whether or not respondent judge gravely abused her discretion when she assumed
and retained jurisdiction over the present case despite the fact that petitioner has
already obtained a divorce decree from a German court.

On the first issue, petitioner asserts that the assailed order of respondent judge is completely
inconsistent with her previous order and is contrary to Section 3, Rule 16, Rules of Civil
Procedure, which provides:

Sec. 3. Resolution of motion - After the hearing, the court may dismiss the action or
claim, deny the motion, or order the amendment of the pleading.

The court shall not defer the resolution of the motion for the reason that the ground
relied upon is not indubitable.

In every case, the resolution shall state clearly and distinctly the reasons therefor.
(Emphasis supplied.)

Petitioner avers that a courts action on a motion is limited to dismissing the action or claim,
denying the motion, or ordering the amendment of the pleading.

Private respondent, on her part, argues that the RTC can validly reconsider its order dated July
14, 1999 because it had not yet attained finality, given the timely filing of respondents motion
for reconsideration.

Pertinent to this issue is Section 3 in relation to Section 7, Rule 37 of the 1997 Rules of Civil
Procedure, which provides:

Sec. 3. Action upon motion for new trial or reconsideration.The trial court may set
aside the judgment or final order and grant a new trial, upon such terms as may be just,
or may deny the motion. If the court finds that excessive damages have been
 awarded or that the judgment or final order is contrary to the evidence or law, it may
amend such judgment or final order accordingly.

Sec. 7. Partial new trial or reconsideration.If the grounds for a motion under this Rule
appear to the court to affect the issues as to only a part, or less than all of the matters in
controversy, or only one, or less than all, of the parties to it, the court may order a new
trial or grant reconsideration as to such issues if severable without interfering with the
judgment or final order upon the rest. (Emphasis supplied.)

It is clear from the foregoing rules that a judge can order a partial reconsideration of a case that
has not yet attained finality. Considering that private respondent filed a motion for
reconsideration within the reglementary period, the trial court's decision of July 14, 1999 can still
be modified. Moreover, in Saado v. Court of Appeals,16 we held that the court could modify or
alter a judgment even after the same has become executory whenever circumstances transpire
rendering its decision unjust and inequitable, as where certain facts and circumstances justifying
or requiring such modification or alteration transpired after the judgment has become final and
executory17 and when it becomes imperative in the higher interest of justice or when
supervening events warrant it.18 In our view, there are even more compelling reasons to do so
when, as in this case, judgment has not yet attained finality.

Anent the second issue, petitioner claims that respondent judge committed grave abuse of
discretion when she partially set aside her order dated July 14, 1999, despite the fact that
petitioner has already obtained a divorce decree from the Court of First Instance of Hamburg,
Germany.

In Garcia v. Recio,19 Van Dorn v. Romillo, Jr.,20 and Llorente v. Court of Appeals,21 we
consistently held that a divorce obtained abroad by an alien may be recognized in our
jurisdiction, provided such decree is valid according to the national law of the foreigner.
Relevant to the present case is Pilapil v. Ibay-Somera,22 where this Court specifically
recognized the validity of a divorce obtained by a German citizen in his country, the Federal
Republic of Germany. We held in Pilapil that a foreign divorce and its legal effects may be
recognized in the Philippines insofar as respondent is concerned in view of the nationality
principle in our civil law on the status of persons.

In this case, the divorce decree issued by the German court dated December 16, 1997 has not
been challenged by either of the parties. In fact, save for the issue of parental custody, even the
trial court recognized said decree to be valid and binding, thereby endowing private respondent
the capacity to remarry. Thus, the present controversy mainly relates to the award of the
custody of their two children, Carolynne and Alexandra Kristine, to petitioner.

As a general rule, divorce decrees obtained by foreigners in other countries are recognizable in
our jurisdiction, but the legal effects thereof, e.g. on custody, care and support of the children,
must still be determined by our courts.23Before our courts can give the effect of res judicata to a
foreign judgment, such as the award of custody to petitioner by the German court, it must be
shown that the parties opposed to the judgment had been given ample opportunity to do so on
grounds allowed under Rule 39, Section 50 of the Rules of Court (now Rule 39, Section 48,
1997 Rules of Civil Procedure), to wit:

SEC. 50. Effect of foreign judgments. - The effect of a judgment of a tribunal of a foreign
country, having jurisdiction to pronounce the judgment is as follows:
 (a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title
to the thing;

(b) In case of a judgment against a person, the judgment is presumptive evidence of a

right as between the parties and their successors in interest by a subsequent title; but
the judgment may be repelled by evidence of a want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact.

It is essential that there should be an opportunity to challenge the foreign judgment, in order for
the court in this jurisdiction to properly determine its efficacy. In this jurisdiction, our Rules of
Court clearly provide that with respect to actions in personam, as distinguished from actions in
rem, a foreign judgment merely constitutes prima facieevidence of the justness of the claim of a
party and, as such, is subject to proof to the contrary.24

In the present case, it cannot be said that private respondent was given the opportunity to
challenge the judgment of the German court so that there is basis for declaring that judgment
as res judicata with regard to the rights of petitioner to have parental custody of their two
children. The proceedings in the German court were summary. As to what was the extent of
private respondents participation in the proceedings in the German court, the records remain
unclear. The divorce decree itself states that neither has she commented on the
proceedings25 nor has she given her opinion to the Social Services Office.26 Unlike petitioner
who was represented by two lawyers, private respondent had no counsel to assist her in said
proceedings.27 More importantly, the divorce judgment was issued to petitioner by virtue of the
German Civil Code provision to the effect that when a couple lived separately for three years,
the marriage is deemed irrefutably dissolved. The decree did not touch on the issue as to who
the offending spouse was. Absent any finding that private respondent is unfit to obtain custody
of the children, the trial court was correct in setting the issue for hearing to determine the issue
of parental custody, care, support and education mindful of the best interests of the children.
This is in consonance with the provision in the Child and Youth Welfare Code that the childs
welfare is always the paramount consideration in all questions concerning his care and
custody. 28

On the matter of property relations, petitioner asserts that public respondent exceeded the
bounds of her jurisdiction when she claimed cognizance of the issue concerning property
relations between petitioner and private respondent. Private respondent herself has admitted in
Par. 14 of her petition for declaration of nullity of marriage dated August 26, 1996 filed with the
RTC of Makati, subject of this case, that: "[p]etitioner and respondent have not acquired any
conjugal or community property nor have they incurred any debts during their
marriage."29 Herein petitioner did not contest this averment. Basic is the rule that a court shall
grant relief warranted by the allegations and the proof.30Given the factual admission by the
parties in their pleadings that there is no property to be accounted for, respondent judge has no
basis to assert jurisdiction in this case to resolve a matter no longer deemed in controversy.

In sum, we find that respondent judge may proceed to determine the issue regarding the
custody of the two children born of the union between petitioner and private respondent. Private
respondent erred, however, in claiming cognizance to settle the matter of property relations of
the parties, which is not at issue.

WHEREFORE, the orders of the Regional Trial Court of Makati, Branch 149, issued on
September 30, 1999 and March 31, 2000 are AFFIRMED with MODIFICATION. We hereby
declare that the trial court has jurisdiction over the issue between the parties as to who has
parental custody, including the care, support and education of the children, namely Carolynne
and Alexandra Kristine Roehr. Let the records of this case be remanded promptly to the trial
court for continuation of appropriate proceedings. No pronouncement as to costs.

SO ORDERED.

Bellosillo, (Chairman), and Callejo, Sr., JJ., concur.

Austria-Martinez, J., on official leave.