THIRD DIVISION

[G.R. No. 193707. December 10, 2014.]

NORMA A. DEL SOCORRO, for and in behalf of her minor child
RODERIGO NORJO VAN WILSEM, petitioner, vs. ERNST JOHAN
BRINKMAN VAN WILSEM, respondent.
DECISION
PERALTA, J :
p

Before the Court is a petition for review on certiorari under Rule 45 of the Rules
of Court seeking to reverse and set aside the Orders 1 dated February 19, 2010
and September 1, 2010, respectively, of the Regional Trial Court of Cebu City
(RTC-Cebu), which dismissed the criminal case entitled People of the Philippines
v. Ernst Johan Brinkman Van Wilsem, docketed as Criminal Case No. CBU-85503,
for violation of Republic Act (R.A.) No. 9262, otherwise known as the AntiViolence Against Women and Their Children Act of 2004.
The following facts are culled from the records:
Petitioner Norma A. Del Socorro and respondent Ernst Johan Brinkman Van
Wilsem contracted marriage in Holland on September 25, 1990. 2 On January 19,
1994, they were blessed with a son named Roderigo Norjo Van Wilsem, who at
the time of the ling of the instant petition was sixteen (16) years of age. 3
Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a Divorce
Decree issued by the appropriate Court of Holland. 4 At that time, their son was
only eighteen (18) months old. 5 Thereafter, petitioner and her son came home
to the Philippines. 6
CHIaTc

According to petitioner, respondent made a promise to provide monthly support

to their son in the amount of Two Hundred Fifty (250) Guildene (which is
equivalent to Php17,500.00 more or less). 7 However, since the arrival of
petitioner and her son in the Philippines, respondent never gave support to the
son, Roderigo. 8
Not long thereafter, respondent came to the Philippines and remarried in
Pinamungahan, Cebu, and since then, have been residing thereat. 9 Respondent
and his new wife established a business known as Paree Catering, located at
Barangay Tajao, Municipality of Pinamungahan, Cebu City. 10 To date, all the
parties, including their son, Roderigo, are presently living in Cebu City. 11
On August 28, 2009, petitioner, through her counsel, sent a letter demanding for
support from respondent. However, respondent refused to receive the letter. 12
Because of the foregoing circumstances, petitioner led a complaint-adavit
with the Provincial Prosecutor of Cebu City against respondent for violation of
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Section 5, paragraph E (2) of R.A. No. 9262 for the latter's unjust refusal to
support his minor child with petitioner. 13 Respondent submitted his counteradavit thereto, to which petitioner also submitted her reply-adavit. 14
Thereafter, the Provincial Prosecutor of Cebu City issued a Resolution
recommending the ling of an information for the crime charged against herein
respondent.
The information, which was led with the RTC-Cebu and raed to Branch 20
thereof, states that:
IcTEaC

That sometime in the year 1995 and up to the present, more or less, in
the Municipality of Minglanilla, Province of Cebu, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, did then
and there wilfully, unlawfully and deliberately deprive, refuse and still
continue to deprive his son RODERIGO NORJO VAN WILSEM, a fourteen
(14) year old minor, of nancial support legally due him, resulting in
economic abuse to the victim.
CONTRARY TO LAW.

15

Upon motion and after notice and hearing, the RTC-Cebu issued a Hold Departure
Order against respondent. 16 Consequently, respondent was arrested and,
subsequently, posted bail. 17
Petitioner also led a Motion/Application of Permanent Protection Order to which
respondent led his Opposition. 18 Pending the resolution thereof, respondent
was arraigned. 19
Subsequently, without the RTC-Cebu having resolved the application of the
protection order, respondent led a Motion to Dismiss on the ground of: (1) lack
of jurisdiction over the oense charged; and (2) prescription of the crime
charged. 20
On February 19, 2010, the RTC-Cebu issued the herein assailed Order, 21
dismissing the instant criminal case against respondent on the ground that the
facts charged in the information do not constitute an oense with respect to the
respondent who is an alien, the dispositive part of which states:
aATEDS

WHEREFORE, the Court nds that the facts charged in the information do
not constitute an oense with respect to the accused, he being an alien,
and accordingly, orders this case DISMISSED.
The bail bond posted by accused Ernst Johan Brinkman Van Wilsem for
his provisional liberty is hereby cancelled (sic) and ordered released.
SO ORDERED.
Cebu City, Philippines, February 19, 2010.

22

Thereafter, petitioner led her Motion for Reconsideration thereto reiterating

respondent's obligation to support their child under Article 195 23 of the Family
Code, thus, failure to do so makes him liable under R.A. No. 9262 which "equally
applies to all persons in the Philippines who are obliged to support their minor
children regardless of the obligor's nationality." 24
On September 1, 2010, the lower court issued an Order 25 denying petitioner's
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Motion for Reconsideration and reiterating its previous ruling. Thus:

. . . The arguments therein presented are basically a rehash of those
advanced earlier in the memorandum of the prosecution. Thus, the court
hereby reiterates its ruling that since the accused is a foreign national he
is not subject to our national law (The Family Code) in regard to a parent's
duty and obligation to give support to his child. Consequently, he cannot
be charged of violating R.A. 9262 for his alleged failure to support his
child. Unless it is conclusively established that R.A. 9262 applies to a
foreigner who fails to give support to his child, notwithstanding that he is
not bound by our domestic law which mandates a parent to give such
support, it is the considered opinion of the court that no prima facie case
exists against the accused herein, hence, the case should be dismissed.
CScTDE

WHEREFORE, the motion for reconsideration is hereby DENIED for lack

of merit.
SO ORDERED.
Cebu City, Philippines, September 1, 2010.

26

Hence, the present Petition for Review on Certiorari raising the following issues:
1. Whether or not a foreign national has an obligation to support his
minor child under Philippine law; and
2. Whether or not a foreign national can be held criminally liable under
R.A. No. 9262 for his unjustied failure to support his minor child. 27

At the outset, let it be emphasized that We are taking cognizance of the instant
petition despite the fact that the same was directly lodged with the Supreme
Court, consistent with the ruling in Republic v. Sunvar Realty Development
Corporation, 28 which lays down the instances when a ruling of the trial court
may be brought on appeal directly to the Supreme Court without violating the
doctrine of hierarchy of courts, to wit:
. . . Nevertheless, the Rules do not prohibit any of the parties from ling a
Rule 45 Petition with this Court, in case only questions of law are
raised or involved. This latter situation was one that petitioners found
themselves in when they led the instant Petition to raise only questions
of law.
CScTED

I n Republic v. Malabanan, the Court claried the three modes of appeal

from decisions of the RTC, to wit: (1) by ordinary appeal or appeal by writ
of error under Rule 41, whereby judgment was rendered in a civil or
criminal action by the RTC in the exercise of its original jurisdiction; (2) by
a petition for review under Rule 42, whereby judgment was rendered by
the RTC in the exercise of its appellate jurisdiction; and (3) by a petition
for review on certiorari before the Supreme Court under Rule 45. "The
rst mode of appeal is taken to the [Court of Appeals] on questions of
fact or mixed questions of fact and law. The second mode of appeal is
brought to the CA on questions of fact, of law, or mixed questions of fact
and law. The third mode of appeal is elevated to the Supreme
Court only on questions of law." (Emphasis supplied)
There is a question of law when the issue does not call for an examination
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of the probative value of the evidence presented or of the truth or

falsehood of the facts being admitted, and the doubt concerns the
correct application of law and jurisprudence on the matter. The resolution
of the issue must rest solely on what the law provides on the given set of
circumstances. 29

Indeed, the issues submitted to us for resolution involve questions of law the
response thereto concerns the correct application of law and jurisprudence on a
given set of facts, i.e., whether or not a foreign national has an obligation to
support his minor child under Philippine law; and whether or not he can be held
criminally liable under R.A. No. 9262 for his unjustied failure to do so.
DIEcHa

It cannot be negated, moreover, that the instant petition highlights a novel

question of law concerning the liability of a foreign national who allegedly
commits acts and omissions punishable under special criminal laws, specically
in relation to family rights and duties. The inimitability of the factual milieu of
the present case, therefore, deserves a denitive ruling by this Court, which will
eventually serve as a guidepost for future cases. Furthermore, dismissing the
instant petition and remanding the same to the CA would only waste the time,
eort and resources of the courts. Thus, in the present case, considerations of
eciency and economy in the administration of justice should prevail over the
observance of the hierarchy of courts.
Now, on the matter of the substantive issues, We nd the petition meritorious.
Nonetheless, we do not fully agree with petitioner's contentions.
To determine whether or not a person is criminally liable under R.A. No. 9262, it
is imperative that the legal obligation to support exists.
Petitioner invokes Article 195 30 of the Family Code, which provides the parent's
obligation to support his child. Petitioner contends that notwithstanding the
existence of a divorce decree issued in relation to Article 26 of the Family Code, 31
respondent is not excused from complying with his obligation to support his
minor child with petitioner.
On the other hand, respondent contends that there is no sucient and clear
basis presented by petitioner that she, as well as her minor son, are entitled to
nancial support. 32 Respondent also added that by reason of the Divorce Decree,
he is not obligated to petitioner for any nancial support. 33
AHaETS

On this point, we agree with respondent that petitioner cannot rely on Article
195 34 of the New Civil Code in demanding support from respondent, who is a
foreign citizen, since Article 15 35 of the New Civil Code stresses the principle of
nationality. In other words, insofar as Philippine laws are concerned, specically
the provisions of the Family Code on support, the same only applies to Filipino
citizens. By analogy, the same principle applies to foreigners such that they are
governed by their national law with respect to family rights and duties. 36
The obligation to give support to a child is a matter that falls under family rights
and duties. Since the respondent is a citizen of Holland or the Netherlands, we
agree with the RTC-Cebu that he is subject to the laws of his country, not to
Philippine law, as to whether he is obliged to give support to his child, as well as
the consequences of his failure to do so. 37
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In the case of Vivo v. Cloribel, 38 the Court held that

Furthermore, being still aliens, they are not in position to invoke
the provisions of the Civil Code of the Philippines, for that
Code cleaves to the principle that family rights and duties are
governed by their personal law, i.e., the laws of the nation to which
they belong even when staying in a foreign country (cf. Civil Code, Article
15). 39

It cannot be gainsaid, therefore, that the respondent is not obliged to support

petitioner's son under Article 195 of the Family Code as a consequence of the
Divorce Covenant obtained in Holland. This does not, however, mean that
respondent is not obliged to support petitioner's son altogether.
EHaASD

In international law, the party who wants to have a foreign law applied to a
dispute or case has the burden of proving the foreign law. 40 In the present case,
respondent hastily concludes that being a national of the Netherlands, he is
governed by such laws on the matter of provision of and capacity to support. 41
While respondent pleaded the laws of the Netherlands in advancing his position
that he is not obliged to support his son, he never proved the same.
It is incumbent upon respondent to plead and prove that the national law of the
Netherlands does not impose upon the parents the obligation to support their
child (either before, during or after the issuance of a divorce decree), because
Llorente v. Court of Appeals, 42 has already enunciated that:
True, foreign laws do not prove themselves in our jurisdiction and our
courts are not authorized to take judicial notice of them. Like any other
fact, they must be alleged and proved. 43

In view of respondent's failure to prove the national law of the Netherlands in

his favor, the doctrine of processual presumption shall govern. Under this
doctrine, if the foreign law involved is not properly pleaded and proved, our
courts will presume that the foreign law is the same as our local or domestic or
internal law. 44 Thus, since the law of the Netherlands as regards the obligation
to support has not been properly pleaded and proved in the instant case, it is
presumed to be the same with Philippine law, which enforces the obligation of
parents to support their children and penalizing the non-compliance therewith.
IASTDE

Moreover, while in Pilapil v. Ibay-Somera, 45 the Court held that a divorce

obtained in a foreign land as well as its legal eects may be recognized in the
Philippines in view of the nationality principle on the matter of status of persons,
the Divorce Covenant presented by respondent does not completely show that
he is not liable to give support to his son after the divorce decree was issued.
Emphasis is placed on petitioner's allegation that under the second page of the
aforesaid covenant, respondent's obligation to support his child is specically
stated, 46 which was not disputed by respondent.
We likewise agree with petitioner that notwithstanding that the national law of
respondent states that parents have no obligation to support their children or
that such obligation is not punishable by law, said law would still not nd
applicability, in light of the ruling in Bank of America, NT and SA v. American
Realty Corporation, 47 to wit:
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In the instant case, assuming arguendo that the English Law on the
matter were properly pleaded and proved in accordance with Section 24,
Rule 132 of the Rules of Court and the jurisprudence laid down in Yao Kee,
et al. vs. Sy-Gonzales, said foreign law would still not nd applicability.
Thus, when the foreign law, judgment or contract is contrary to
a sound and established public policy of the forum, the said
foreign law, judgment or order shall not be applied.
Additionally, prohibitive laws concerning persons, their acts or property,
and those which have for their object public order, public policy and good
customs shall not be rendered ineective by laws or judgments
promulgated, or by determinations or conventions agreed upon in a
foreign country.
CAHTIS

The public policy sought to be protected in the instant case is the

principle imbedded in our jurisdiction proscribing the splitting up of a
single cause of action.
Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent
If two or more suits are instituted on the basis of the same cause
of action, the ling of one or a judgment upon the merits in any one
is available as a ground for the dismissal of the others.
Moreover, foreign law should not be applied when its application
would work undeniable injustice to the citizens or residents of
the forum. To give justice is the most important function of law; hence, a
law, or judgment or contract that is obviously unjust negates the
fundamental principles of Conict of Laws. 48

Applying the foregoing, even if the laws of the Netherlands neither enforce a
parent's obligation to support his child nor penalize the non-compliance
therewith, such obligation is still duly enforceable in the Philippines because it
would be of great injustice to the child to be denied of nancial support when the
latter is entitled thereto.
We emphasize, however, that as to petitioner herself, respondent is no longer
liable to support his former wife, in consonance with the ruling in San Luis v. San
Luis, 49 to wit:
SHaIDE

As to the eect of the divorce on the Filipino wife, the Court ruled that she
should no longer be considered married to the alien spouse. Further, she
should not be required to perform her marital duties and obligations. It
held:
To maintain, as private respondent does, that, under our
laws, petitioner has to be considered still married to
private respondent and still subject to a wife's obligations
under Article 109, et. seq. of the Civil Code cannot be just.
Petitioner should not be obliged to live together with, observe
respect and delity, and render support to private respondent. 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.
(Emphasis added) 50
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Based on the foregoing legal precepts, we nd that respondent may be made

liable under Section 5 (e) and (i) of R.A. No. 9262 for unjustly refusing or failing
to give support to petitioner's son, to wit:
SECTION 5. Acts of Violence Against Women and Their Children . The
crime of violence against women and their children is committed through
any of the following acts:
xxx xxx xxx
(e) Attempting to compel or compelling the woman or her child to
engage in conduct which the woman or her child has the right to
desist from or desist from conduct which the woman or her child
has the right to engage in, or attempting to restrict or restricting
the woman's or her child's freedom of movement or conduct by
force or threat of force, physical or other harm or threat of
physical or other harm, or intimidation directed against the woman
or child. This shall include, but not limited to, the following acts
committed with the purpose or eect of controlling or restricting
the woman's or her child's movement or conduct:
DHSaCA

xxx xxx xxx

(2) Depriving or threatening to deprive the woman or her
children of nancial support legally due her or her family, or
deliberately providing the woman's children insucient nancial support;
xxx xxx xxx
(i) Causing mental or emotional anguish, public ridicule or
humiliation to the woman or her child, including, but not limited to,
repeated verbal and emotional abuse, and denial of nancial
support or custody of minor children of access to the woman's
child/children. 51

Under the aforesaid special law, the deprivation or denial of nancial support to
the child is considered an act of violence against women and children.
In addition, considering that respondent is currently living in the Philippines, we
nd strength in petitioner's claim that the Territoriality Principle in criminal law,
in relation to Article 14 of the New Civil Code, applies to the instant case, which
provides that:"[p]enal laws and those of public security and safety shall be
obligatory upon all who live and sojourn in Philippine territory, subject to the
principle of public international law and to treaty stipulations." On this score, it is
indisputable that the alleged continuing acts of respondent in refusing to support
his child with petitioner is committed here in the Philippines as all of the parties
herein are residents of the Province of Cebu City. As such, our courts have
territorial jurisdiction over the oense charged against respondent. It is likewise
irrefutable that jurisdiction over the respondent was acquired upon his arrest.
cdll

Finally, we do not agree with respondent's argument that granting, but not
admitting, that there is a legal basis for charging violation of R.A. No. 9262 in the
instant case, the criminal liability has been extinguished on the ground of
prescription of crime 52 under Section 24 of R.A. No. 9262, which provides that:
SECTION 24. Prescriptive Period. Acts falling under Sections 5(a) to 5(f)
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shall prescribe in twenty (20) years. Acts falling under Sections 5(g) to
5(I) shall prescribe in ten (10) years.

The act of denying support to a child under Section 5 (e) (2) and (i) of R.A. No.
9262 is a continuing oense, 53 which started in 1995 but is still ongoing at
present. Accordingly, the crime charged in the instant case has clearly not
prescribed.
Given, however, that the issue on whether respondent has provided support to
petitioner's child calls for an examination of the probative value of the evidence
presented, and the truth and falsehood of facts being admitted, we hereby
remand the determination of tis issue to the RTC-Cebu which has jurisdiction
over the case.
WHEREFORE, the petition is GRANTED. The Orders dated February 19, 2010
and September 1, 2010, respectively, of the Regional Trial Court of the City of
Cebu are hereby REVERSED and SET ASIDE. The case is REMANDED to the
same court to conduct further proceedings based on the merits of the case.
CEASaT

SO ORDERED.
Velasco, Jr., Villarama, Jr., Mendoza * and Reyes, JJ., concur.
Footnotes
* Designated Acting Member in lieu of Associate Justice Francis H. Jardeleza, per
Special Order No. 1896 dated November 28, 2014.
1. Penned by Judge Bienvenido R. Saniel, Jr.; Annexes "A" and "B" to Petition,
respectively, rollo, pp. 22-26.
2. Rollo, p. 6.
3. Id.
4. Id. at 7.
5. Annex "F" to Petition, rollo, p. 31.
6. Id. at 32.
7. Annex "A" to Petition, rollo, pp. 23-24.
8. Id. at 24.
9. Id. at 32.
10. Id.
11. Supra note 7, at 23-24.
12. Supra note 5, at 32.
13. Rollo, p. 7.
14. Id.
15. Id. at 22.
16. Id.
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17. Id. at 24.

18. Id. at 8.
19. Id.
20. Id.
21. Supra note 7.
22. Id. at 24.
23. Art. 195. Subject to the provisions of the succeeding articles, the following are
obliged to support each other to the whole extent set forth in the preceding
article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and illegitimate children of
the latter;
(4) Parents and their illegitimate children and the legitimate and illegitimate children
of the latter; and
(5) Legitimate brothers and sisters, whether of full or half-blood.
24. Annex "R" to Petition, rollo, p. 102.
25. Annex "B" to Petition, id. at 25.
26. Id.
27. Rollo, p. 10.
28. G.R. No. 194880, June 20, 2012, 674 SCRA 320.
29. Id. at 332-333.
30. Supra note 23.
31. 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), 3637 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 have capacity to remarry under
Philippine law. (As amended by Executive Order 227)
32. Comment on the Petition for Review on Certiorari, rollo, p. 123.
33. Id. at 122.
34. Supra note 23.
35. Art. 15. 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.
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36. Supra note 7, at 24.

37. Id.
38. G.R. No. L-25441, October 26, 1968, 25 SCRA 616.
39. Id. at 625-626. (Emphasis supplied)
40. EDI-Stabuilders International, Inc. v. NLRC, 563 Phil. 1, 22 (2007).
41. Annex "N" to Petition, rollo, p. 84.
42. 399 Phil. 342 (2000).
43. Id. at 354. (Emphasis supplied)
44. Bank of America, NT and SA v. American Realty Corporation , 378 Phil. 1279, 1296
(1999).
45. G.R. No. 80116, June 30, 1989, 174 SCRA 653.
46. Rollo, p. 18.
47. Supra note 44.
48. Id. at 1296-1297. (Emphasis supplied)
49. 543 Phil. 275 (2007).
50. Id. at 290.
51. Section 5 (e) and (i) of R.A. No. 9262. (Emphasis supplied)
52. Rollo, p. 15.
53. In People v. De Leon, 608 Phil. 701, 722 (2009), it was held that:
A continued (continuous or continuing) crime is dened as a single crime, consisting
of a series of acts but all arising from one criminal resolution. Although there is
a series of acts, there is only one crime committed; hence, only one penalty
shall be imposed.

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