SECOND DIVISION
WOLFGANG O. ROEHR,
Petitioner,
G.R.
No.
142820
June 20, 2003
-versus-
MARIA CARMEN D.
RODRIGUEZ, AND
HON. JUDGE
JOSEFINA
GUEVARA-SALONGA,PRESIDING JUDGE
OF MAKATI RTC, BRANCH 149,
Respondents.
D E C I S I
O N
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 Order[1]
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 order[3]
dated March 31, 2000 denying his motion for reconsideration. The
assailed orders partially set aside the trial court’s 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.cralaw:red
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.chanrobles virtual law library
On August 28, 1996,
private respondent filed a Petition[5]
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 order[7]
dated May 28, 1997.cralaw:red
On June 5, 1997, petitioner
filed a motion for reconsideration, but was also denied in an Order[8]
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.cralaw:red
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:
The 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.cralaw:red
The parental custody
for the children
Carolynne Roehr, born
18 November 1981
Alexandra Kristine Roehr,
born on 25 October 1987chanrobles virtual law library
is granted to the father.cralaw:red
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.cralaw:red
On July 14, 1999, Judge
Guevara-Salonga issued an order granting petitioner’s 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.cralaw:red
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.chanrobles virtual law library
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 matters which may be ventilated in this Court.cralaw:red
SO ORDERED.[11]
(Emphasis supplied).cralaw:red
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:chanrobles virtual law library
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:chanroblesvirtuallawlibrary
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:chanroblesvirtuallawlibrarychanrobles virtual law library
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
court’s 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 respondent’s motion for reconsideration.cralaw:red
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.chanrobles virtual law library
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
Sañado
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 executory[17]
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.cralaw:red
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.chanrobles virtual law library
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.cralaw:red
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.[23]
Before 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.cralaw:red
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 facie evidence of the justness of the
claim of a party and, as such, is subject to proof to the contrary.[24]chanrobles virtual law library
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
respondent’s
participation in the proceedings in the German court, the records
remain
unclear. The divorce decree itself states that neither has she
commented
on the proceedings[25]
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 child’s
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.[30]
Given 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.chanrobles virtual law library
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.cralaw:red
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.cralaw:red
SO ORDERED.cralaw:red
Bellosillo, J., (Chairman),
and Callejo, Sr., JJ., concur.
Austria-Martinez, J.,
on official leave.
____________________________
Endnotes:
[1]
Rollo, p. 15.
[2]
Judge Josefina Guevara-Salonga signed as Executive Judge.
[3]
Rollo, p. 16.chanrobles virtual law library
[4]
Records, pp. 5-6.
[5]
Id. at 1-4.
[6]
Id. at 19-28.
[7]
Id. at 147.
[8]
Id. at 165.
[9]
Rollo, p. 33.
[10]
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. (As amended by E. O. No.
227, dated July 17, 1987.)
[11]
Supra, note 1.chanrobles virtual law library
[12]
Supra, note 3.
[13]
Rollo, p. 6.
[14]
Id. at 8.
[15]
Ibid.chanrobles virtual law library
[16]
G.R. No. 108338, 17 April 2001, 356 SCRA 546, 561.chanrobles virtual law library
[17]
David v. Court of Appeals, G.R. No. 115821, 13 October 1999, 316 SCRA
710,
719.
[18]
People v. Gallo, G.R. No. 124736, 29 September 1999, 315 SCRA 461, 463.
[19]
G.R. No. 138322, 2 October 2001, 366 SCRA 437, 447.chanrobles virtual law library
[20]
No. L-68470, 8 October 1985, 139 SCRA 139, 143.
[21]
G.R. No. 124371, 23 November 2000, 345 SCRA 592, 601.
[22]
G.R. No. 80116, 30 June 1989, 174 SCRA 653, 663.
[23]
Llorente v. Court of Appeals, supra at 602.chanrobles virtual law library
[24]
Philsec Investment Corporation v. Court of Appeals, G.R. No. 103493, 19
June 1997, 274 SCRA 102, 110.
[25]
Rollo, p. 57.chanrobles virtual law library
[26]
Ibid.chanrobles virtual law library
[27]
Id. at 55-56.chanrobles virtual law library
[28]
Sagala-Eslao v. Court of Appeals, G.R. No. 116773, 16 January 1997, 266
SCRA 317, 321, citing Art. 8, P.D. No. 603, The Child and Youth Welfare
Code-
Art.
8. Child’s Welfare Paramount. - In all questions regarding the care,
custody,
education and property of the child, his welfare shall be the paramount
consideration.
[29]
Rollo, p. 19.chanrobles virtual law library
[30]
JG Summit Holdings, Inc. v. Court of Appeals, G.R. No. 124293, 20
November
2000, 345 SCRA 143, 154. |