G.R. No.

168785 February 5, 2010

HERALD BLACK DACASIN, Petitioner,

DECISION

CARPIO, J.:

The Case

For review1 is a dismissal2 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 (Agreement4 ) 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 Code6 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

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 law15 (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
custody17 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.1avvphi 1

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 spouse26 - 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.
Romillo27 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.

xxxx

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-Somera29 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

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.