HERALD BLACK DACASIN vs. SHARON DEL MUNDO DACASIN G.R. No. 168785 February 5, 2010

Case Digest 

HERALD BLACK DACASIN vs. SHARON DEL MUNDO DACASIN G.R. No. 168785 February 5, 2010

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

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.

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.

Ruling: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.

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,19subject 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

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:

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.