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.

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.1avvphi1

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.