SECOND DIVISION

 

 

 

HERALD BLACK DACASIN,              G.R. No. 168785

                                  Petitioner,                    

                                                                  Present:     

                                                                 

                                                                  CARPIO, J., Chairperson,

                                                                 BRION,

                   - versus -                                  DEL CASTILLO,

                                               ABAD, and       

                                                                      PEREZ, JJ.

 

 

SHARON DEL MUNDO DACASIN,     Promulgated:

                                 Respondent.          February 5, 2010

x----------------------------------------------------------------------------------------x

 

 

D E C I S I O N

 

 

CARPIO, J.:

 

 

The Case

 

         For review[1] is a dismissal[2] of a suit to enforce a post-foreign divorce child custody agreement for lack of jurisdiction.

 

The Facts

 

 

         Petitioner Herald Dacasin (petitioner), American, and respondent Sharon Del Mundo Dacasin (respondent),  Filipino, were married in Manila in April 1994. They have one daughter, Stephanie, born on 21 September 1995. In June 1999, respondent sought and obtained from the Circuit Court, 19th Judicial Circuit, Lake County, Illinois (Illinois court) a divorce decree against petitioner.[3]  In its ruling, the Illinois court dissolved the marriage of petitioner and respondent, awarded to respondent sole custody of Stephanie and retained jurisdiction over the case for enforcement purposes. 

 

         On 28 January 2002, petitioner and respondent executed in Manila a contract (Agreement[4]) for the joint custody of Stephanie. The parties chose Philippine courts as exclusive forum to adjudicate disputes arising from the Agreement.  Respondent undertook to obtain from the Illinois court an order “relinquishing” jurisdiction to Philippine courts.

 

         In 2004, petitioner sued respondent in the Regional Trial Court of Makati City, Branch 60 (trial court) to enforce the Agreement. Petitioner alleged that in violation of the Agreement, respondent exercised sole custody over Stephanie.

 

         Respondent sought the dismissal of the complaint for, among others, lack of jurisdiction because of the Illinois court’s retention of jurisdiction to enforce the divorce decree.

 

The Ruling of the Trial Court

 

         In its Order dated 1 March 2005, the trial court sustained respondent’s motion and dismissed the case for lack of jurisdiction. The trial court       held that: (1) it is precluded from taking cognizance over the suit considering the Illinois court’s retention of jurisdiction to enforce its divorce decree, including its order awarding sole custody of Stephanie to respondent;  (2) the divorce decree is binding on petitioner following the “nationality rule” prevailing in this jurisdiction;[5] and (3) the Agreement is void for contravening Article 2035, paragraph 5 of the Civil Code[6] prohibiting compromise agreements on  jurisdiction.[7] 

 

         Petitioner sought reconsideration,  raising the new argument that the divorce decree obtained by respondent is void. Thus, the divorce decree is no bar to the trial court’s exercise of jurisdiction over the case.

 

         In its Order dated 23 June 2005, the trial court denied reconsideration, holding that unlike in the case of respondent, the divorce decree is binding on petitioner under the laws of his nationality.

 

         Hence, this petition.

 

         Petitioner submits the following alternative theories for the validity of the Agreement to justify its enforcement by the trial court: (1) the Agreement novated the valid divorce decree, modifying the terms of child custody from sole (maternal) to joint;[8] or (2) the Agreement is independent of the divorce decree obtained by respondent.

 

 

The Issue

 

         The question is whether the trial court has jurisdiction to take cognizance of petitioner’s suit and enforce the Agreement on the joint custody of the parties’ child.

 

The Ruling of the Court

 

         The trial court has jurisdiction to entertain petitioner’s suit but not to enforce the Agreement which is void. However, factual and equity considerations militate against the dismissal of petitioner’s suit and call for the remand of the case to settle the question of Stephanie’s custody.

 

Regional Trial Courts Vested With Jurisdiction

to Enforce Contracts

        

Subject matter jurisdiction is conferred by law. At the time petitioner filed his suit in the trial court, statutory law vests on Regional Trial Courts exclusive original jurisdiction over civil actions incapable of pecuniary estimation.[9] An action for specific performance, such as petitioner’s suit to enforce the Agreement on joint child custody, belongs to this species of actions.[10] Thus, jurisdiction-wise, petitioner went to the right court.

 

Indeed, the trial court’s refusal to entertain petitioner’s suit was grounded not on its lack of power to do so but on its thinking that the Illinois court’s divorce decree stripped it of jurisdiction. This conclusion is unfounded. What the Illinois court retained was “jurisdiction x x x for the purpose of enforcing all and sundry the various provisions of [its] Judgment for Dissolution.”[11] Petitioner’s suit seeks the enforcement not of the “various provisions” of the divorce decree but of the post-divorce Agreement on joint child custody. Thus, the action lies beyond the zone of the Illinois court’s so-called “retained jurisdiction.”  

 

Petitioner’s Suit Lacks Cause of Action

 

         The foregoing notwithstanding, the trial court cannot enforce the Agreement which is contrary to law.

 

In this jurisdiction, parties to a contract are free to stipulate the terms of agreement subject to the minimum ban on stipulations contrary to law, morals, good customs, public order, or public policy.[12] Otherwise, the contract is denied legal existence, deemed “inexistent and void from the beginning.”[13] For lack of relevant stipulation in the Agreement, these and other ancillary Philippine substantive law serve as default parameters to test  the validity of the Agreement’s joint child custody stipulations.[14]

At the time the parties executed the Agreement on 28 January 2002, two facts are undisputed: (1)  Stephanie was under seven years old (having been born on 21 September 1995); and (2) petitioner and respondent were no longer married under the laws of the United States because of the divorce decree. The relevant Philippine law on child custody for spouses separated in fact or in law[15]  (under the second paragraph of Article 213 of the Family Code) is also undisputed: “no child under seven years of age shall be separated from the mother x x x.”[16]  (This statutory awarding of sole parental custody[17] to the mother is mandatory,[18] grounded on sound policy consideration,[19] subject only to a narrow exception not alleged to obtain here.[20]) Clearly then, the Agreement’s object to establish a post-divorce joint custody regime between respondent and petitioner over their child under seven years old contravenes Philippine law.

 

The Agreement is not only void ab initio for being contrary to law, it has also been repudiated by the mother when she refused to allow joint custody by the father. The Agreement would be valid if the spouses have not divorced or separated because the law provides for joint parental authority when spouses live together.[21] However, upon separation of the spouses, the mother takes sole custody under the law if the child is below seven years old and any agreement to the contrary is void.  Thus, the law suspends the joint custody regime for (1) children under seven of (2) separated or divorced spouses. Simply put, for a child within this age bracket (and for commonsensical reasons), the law decides for the separated or divorced  parents how best to take care of the child and that is to give custody to the separated mother.  Indeed, the separated parents cannot contract away the provision in the Family Code on the maternal custody of children below seven years anymore than they can privately agree that a mother who is unemployed, immoral, habitually drunk, drug addict, insane or afflicted with a communicable disease will have sole custody of a child under seven as these are reasons deemed compelling to preclude the application of the exclusive maternal custody regime under the second paragraph of Article 213.[22]

 

It will not do to argue that the second paragraph of Article 213 of the Family Code applies only to judicial custodial agreements based on its text that “No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise.” To limit this provision’s enforceability to court sanctioned agreements while placing private agreements beyond its reach is to sanction a double standard in custody regulation of children under seven years old of separated parents. This effectively empowers separated parents, by the simple expedient of avoiding the courts, to subvert a legislative policy vesting to the separated mother sole custody of her children under seven years of age “to avoid a tragedy where a mother has seen her baby torn away from her.”[23] This ignores the legislative basis that “[n]o man can sound the deep sorrows of a mother who is deprived of her child of tender age.”[24] 

 

It could very well be that Article 213’s bias favoring one separated parent (mother) over the other (father) encourages paternal neglect, presumes incapacity for joint parental custody, robs the parents of custodial options, or hijacks decision-making between the separated parents.[25] However, these are objections which question the law’s wisdom not its validity or uniform enforceability. The forum to air and remedy these grievances is the legislature, not this Court. At any rate, the rule’s seeming harshness or undesirability is tempered by ancillary agreements the separated parents may wish to enter such as granting the father visitation and other privileges. These arrangements are not inconsistent with the regime of sole maternal custody under the second paragraph of Article 213 which merely grants to the mother final authority on the care and custody of the minor under seven years of age, in case of disagreements.

 

Further, the imposed custodial regime under the second paragraph of Article 213 is limited in duration, lasting only until the child’s seventh year. From the eighth year until the child’s emancipation, the law gives the separated parents freedom, subject to the usual contractual limitations, to agree on custody regimes they see fit to adopt. Lastly, even supposing that petitioner and respondent are not barred from entering into the Agreement for the joint custody of Stephanie, respondent repudiated the Agreement by asserting sole custody over Stephanie. Respondent’s act effectively brought the parties back to ambit of the default custodial regime in the second paragraph of Article 213 of the Family Code vesting on respondent sole custody of Stephanie.

 

Nor can petitioner rely on the divorce decree’s alleged invalidity - not because the Illinois court lacked jurisdiction or that the divorce decree violated Illinois law, but because the divorce was obtained by his Filipino spouse[26] - to support the Agreement’s enforceability. The argument that foreigners in this jurisdiction are not bound by foreign divorce decrees is hardly novel. Van Dorn v. Romillo[27] settled the matter by holding that an alien spouse of a Filipino is bound by a divorce decree obtained abroad.[28] There, we dismissed the alien divorcee’s Philippine suit for accounting of alleged post-divorce conjugal property and rejected his submission that the foreign divorce (obtained by the Filipino spouse) is not valid in this jurisdiction in this wise:

 

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. What he is contending in this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local law and public policy.

 

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. In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage.

 

x x x x

 

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. As he is bound by the Decision of his own country’s Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property. (Emphasis supplied)

 

 

                We reiterated Van Dorn in Pilapil v. Ibay-Somera[29] to dismiss criminal complaints for adultery filed by the alien divorcee (who obtained the foreign divorce decree) against his former Filipino spouse because he no longer qualified as “offended spouse” entitled to file the complaints under Philippine procedural rules. Thus, it should be clear by now that a foreign divorce decree carries as much validity against the alien divorcee in this jurisdiction as it does in the jurisdiction of the alien’s nationality, irrespective of who obtained the divorce.

 

The Facts of the Case and Nature of Proceeding

Justify Remand

 

         Instead of ordering the dismissal of petitioner’s suit, the logical end to its lack of cause of action, we remand the case for the trial court to settle the question of Stephanie’s custody. Stephanie is now nearly 15 years old, thus removing the case outside of the ambit of the mandatory maternal custody regime under Article 213 and bringing it within coverage of the default standard on child custody proceedings – the best interest of the child.[30] As the question of custody is already before the trial court and the child’s parents, by executing the Agreement, initially showed inclination to share custody, it is in the interest of swift and efficient rendition of justice  to allow the parties to take advantage of the court’s jurisdiction, submit evidence on the custodial arrangement best serving Stephanie’s interest, and let the trial court render judgment.  This disposition is consistent with the settled doctrine that in child custody proceedings, equity may be invoked to serve the child’s best interest.[31] 

 

            WHEREFORE, we REVERSE the Orders dated 1 March 2005 and 23 June 2005 of the Regional Trial Court of  Makati City, Branch 60. The case is REMANDED for further proceedings consistent with this ruling.

 

         SO ORDERED.

 

 

 

 

 

                                      ANTONIO T. CARPIO

                                            Associate Justice

 

WE CONCUR:

 

   ARTURO D. BRION      

Associate Justice

 

 

 

 MARIANO C. DEL CASTILLO                                               ROBERTO A. ABAD

             Associate Justice                                          Associate Justice

 

 

JOSE P. PEREZ

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 Court’s Division.

 

 

                                                                                ANTONIO T.  CARPIO

                                                                           Associate Justice

                     Chairperson

 

CERTIFICATION

         Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify 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 Court’s Division.

 

 

                                                                        REYNATO S. PUNO

                                                                               Chief Justice


[1]              Under Rule 45 of the 1997 Rules of Civil Procedure.

[2]              In the Orders dated 1 March 2005 and 23 June 2005 issued by the Trial Court of Makati             City, Branch 60.

[3]              Petitioner did not contest the proceedings.

[4]              Denominated “Compromise Agreement on Child Custody and Support.”

[5]              Under Article 15 of the Civil Code which provides: “Laws relating to family rights and duties, or                to the status, condition and legal capacity of persons are binding upon citizens of the Philippines,         even though living abroad.”

[6]              This provides: “No compromise upon the following questions shall be valid: x x x (5) The            jurisdiction of courts[.]”

[7]              The trial court held (Records, pp. 157-158):

 

               [H]aving expressly recognized the validity of the Illinois Court’s judgment [petitioner] is bound by its provisions including the provision that the Court would  maintain sole jurisdiction to implement and enforce the provisions of the said judgment which necessarily included guidelines for the child’s custody.

 

                [Petitioner] being admittedly an American, following the nationality rule which Philippine civil laws adhere to, the Judgment of the Illinois Court would be binding upon him since the judicial disposition refers to matters of status or legal capacity of a person.         

 

                x x x x

 

                Moreover, this Court cannot act upon [petitioner’s] prayer to enforce the terms of the said Compromise Agreement the said agreement being invalid and therefore, void, precisely because it seeks to transfer jurisdiction over the issue of child custody from the Illinois Court to this Court by agreement of the parties, when the previous Court had already effectively asserted its authority to act upon all matters relating to the said issue.

 

               In this regard, Art. 2035 of the Civil Code expressly states that no compromise upon the questions of civil status of persons, validity of marriage, or legal separation, future support, jurisdiction of courts and future legitimate shall be valid.

[8]As a corollary claim, petitioner submits that the stipulation in the Agreement “vesting” exclusive jurisdiction to Philippine courts over conflicts arising from the Agreement, even if void    for being contrary to Article 2035, paragraph 5 of the Civil Code, is severable from and does not affect the validity of  the other terms of the Agreement on joint custody.

[9]Section 19, paragraph 1, Batas Pambansa Blg. 129, as amended by Republic Act No. 7691, provides: “Jurisdiction in civil cases.- Regional Trial Courts shall exercise exclusive original jurisdiction: (1) In all civil actions in which the subject of the litigation is incapable of pecuniary estimation;   x x x x”

[10]    See Ortigas & Company, Limited Partnership v. Herrera, 205 Phil. 61 (1983).

[11]             Records, p. 17 (emphasis supplied).

[12]             Article 1306 of the Civil Code provides: “The contracting parties may establish such     stipulations, clauses, terms and conditions as they may deem convenient, provided they are not              contrary to law, morals, good customs, public order, or public policy.”

[13]             Article 1409, paragraph 1 of the Civil Code provides: “The following contracts are inexistent and              void from the beginning: (1) Those whose cause, object or purpose is contrary to law, morals,   good customs, public order or public policy; x x x x”

[14]             It can be inferred from the terms of the Agreement that the parties intended to be bound by        Philippine law on its intrinsic validity (this is evident, for instance, from the stipulation selecting       Philippine courts as exclusive forum to settle “any legal issue or dispute that may arise from the     provisions of [the] Agreement and its interpretation x x x” (Records, p. 19; emphasis supplied).                  At any rate, Philippine law has the most substantial connection to the contract, considering its    object (custody of a Filipino-American child), subject (Filipino-American child under seven years    of age, born of a Filipino mother, both of whom reside in the country) and parties (Filipina mother            and alien father).

[15]             Including those marriages whose vinculum has been severed (see Sempio-Dy, Handbook on the    Family Code of the Philippines 67-68 [1988]).

[16]The provision states: “In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.

 

           No child under seven years of age shall be separated from the mother, unless the court                 finds compelling reasons to order otherwise.” (Emphasis supplied)

[17]             Gamboa-Hirsch v. Court of Appeals (Res.), G.R. No. 174485, 11 July 2007, 527 SCRA 320         (reversing the Court of Appeals’ ruling mandating joint custody and awarding sole custody to the         mother).

[18]             Perez v. Court of Appeals, 325 Phil. 1014 (1996). For children over seven, custody decisions        are guided by the standard of “best interest of the child.”

[19]             Our discussion in Pablo-Gualberto v. Gualberto V, G.R. No. 154994, 28 June 2005, 461 SCRA 450, 471-472, on the statutory genealogy and policy grounding of the second paragraph of Article     213 is enlightening:

 

               [A]rticle 213 takes its bearing from Article 363 of the Civil Code, which reads:

                  Art. 363.  In all questions on the care, custody, education and property of children, the latter’s welfare shall be paramount.  No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure.

               The general rule that children under seven years of age shall not be separated from their mother finds its raison d’etre in the basic need of minor children for their mother’s loving care.  In explaining the rationale for Article 363 of the Civil Code, the Code Commission stressed thus:

                The general rule is recommended in order to avoid 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 sufficient 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)

[20]             Sole maternal custody is denied only for “compelling reasons”  such as “neglect, abandonment,               unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child,   insanity or affliction with a communicable disease” (Id. at 476; internal citation omitted).

[21]             Civil Code, Article 211, as amended.

[22]             See note 20.

[23]              See note 19.

[24]              Id.

[25]This line of argument can be subsumed under the rubric of “unfair state intervention” but this complaint can very well be leveled against the entire field of family law where the state injects itself on a host of areas impinging on the decision-making capacity and autonomy of individuals ranging from the intensely personal (e.g. who can marry [Article 5, Family Code], where to marry [Article 5, Family Code], who can celebrate the marriage [Article 5, Family Code], and how to relate to one’s spouse [Articles 68-72]) to proprietary (e.g. Articles 74-125, Family Code, on property relations of spouses and Articles 194-208, Family Code, on support) to familial (e.g. Articles 209-233, Family Code, on parental authority).

[26]Petitioner hooks his argument on Gonzales v. Gonzales (58 Phil. 67 [1933]), Arca v. Javier (95 Phil. 579 [1954]) and  Tenchavez v. Escaño (122 Phil. 752 [1965]). These cases, involving Filipino spouses, merely applied the “nationality rule” (now embodied in Article 15 of the Civil Code) to reject validating foreign divorce decrees obtained by Filipino spouses to circumvent the no-divorce rule in this jurisdiction. They are no authority to support petitioner’s submission that as to aliens, foreign divorce decrees are void here.

[27]             223 Phil. 357 (1985).

[28]Id. at 361-363.Van Dornspawned the second paragraph of Article 26 granting to Filipino spouses of aliens who obtain foreign divorce decrees the right to remarry. (Republic v. Orbecido III, G.R. No. 154380, 5 October 2005, 472 SCRA 114).

[29]             G.R. No. 80116, 30 June 1989, 174 SCRA 653.

[30]   Bagtas v. Santos, G.R. No. 166682, 27 November 2009.

[31]Thus, in habeas corpus proceedings involving child custody, judicial resolutions extend beyond the custodial right of persons exercising parental authority over the child and reach issues on custodial arrangements serving the child’s best interest (see Bagtas v. Santos, id., remanding a habeas corpus petition to determine the fitness of the legal custodians notwithstanding that the question of illegal withholding of custody has been mooted by the transfer of the child’s physical custody to the habeas corpus petitioners).