G.R. No.

82606 December 18, 1992

PRIMA PARTOSA-JO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and HO HANG (with aliases JOSE JO
and CONSING), respondents.

CRUZ, J.:

The herein private respondent, Jose Jo, admits to having cohabited with three women
and fathered fifteen children. The first of these women, the herein petitioner, claims to
be his legal wife whom he begot a daughter, Monina Jo. The other women and their
respective offspring are not parties of these case.

In 1980, the petitioner filed a complaint against Jo for judicial separation of conjugal
property, docketed as Civil Case No. 51, in addition to an earlier action for support, also
against him and docketed as Civil Case No. 36, in the Regional Trial Court of Negros
Oriental, Branch 35.

The two cases were consolidated and tried jointly. On November 29, 1983, Judge
German G. Lee, Jr. rendered an extensive decision, the dispositive portion of which
read:

WHEREFORE, in view of all the foregoing arguments and considerations,

this court hereby holds that the plaintiff Prima Partosa was legally
married to Jose Jo alias Ho Hang, alias Consing, and, therefore, is entitled
to support as the lawfully wedded wife and the defendant is hereby
ordered to give a monthly support of P500.00 to the plaintiff Prima
Partosa, to be paid on or before the 5th day of every month, and to give to
the plaintiff the amount of P40,000.00 for the construction of the house in
Zamboanguita, Negros Oriental where she may live separately from the
defendant being entitled under the law to separate maintenance being the
innocent spouse and to pay the amount of P19,200.00 to the plaintiff by
way of support in arrears and to pay the plaintiff the amount of P3,000.00
in the concept of attorney's fees.

As will be noticed, there was a definite disposition of the complaint for support but
none of the complaint for judicial separation of conjugal property.

Jo elevated the decision to the Court of Appeals, which affirmed the ruling of the trial
court in the complaint for support. 1 The complaint for judicial separation of conjugal
property was dismissed for lack of a cause of action and on the ground that separation
by agreement was not covered by Article 178 of the Civil Code.
When their motions for reconsideration were denied, both parties came to this Court for
relief. The private respondent's petition for review on certiorari was dismissed for
tardiness in our resolution dated February 17, 1988, where we also affirmed the legality
of the marriage between Jose and Prima and the obligation of the former to support her
and her daughter.

This petition deals only with the complaint for judicial separation of conjugal property.

It is here submitted that the Court of Appeals erred in holding that: a) the judicial
separation of conjugal property sought was not allowed under Articles 175, 178 and 191
of the Civil Code; and b) no such separation was decreed by the trial court in the
dispositive portion of its decision.

The private respondent contends that the decision of the trial court can longer be
reviewed at this time because it has a long since become final and executory. As the
decretal portion clearly made no disposition of Civil Case No. 51, that case should be
considered impliedly dismissed. The petitioner should have called the attention of the
trial court to the omission so that the proper rectification could be made on time. Not
having done so, she is now concluded by the said decision, which can no longer be
corrected at this late hour.

We deal first with the second ground.

While admitting that no mention was made of Civil Case No. 51 in the dispositive
portion of the decision of the trial court, the petitioner argues that a disposition of the
case was nonetheless made in the penultimate paragraph of the decision reading as
follows:

It is, therefore, hereby ordered that all properties in question are

considered properties of Jose Jo, the defendant in this case, subject to
separation of property under Article 178, third paragraph of the Civil
Code, which is subject of separate proceedings as enunciated herein.

The petitioner says she believed this to be disposition enough and so did not feel it was
necessary for her to appeal, particularly since the order embodied in that paragraph
was in her favor. It was only when the respondent court observed that there was no
dispositive portion regarding that case and so ordered its dismissal that she found it
necessary to come to this Court for relief.

The petitioner has a point.

The dispositive portion of the decision in question was incomplete insofar as it carried
no ruling on the complaint for judicial separation of conjugal property although it was
extensively discussed in the body of the decision. The drafting of the decision was
indeed not exactly careful. The petitioner's counsel, noting this, should have taken
immediate steps for the rectification for the omission so that the ruling expressed in the
text of the decision could have been embodied in the decretal portion. Such alertness
could have avoided this litigation on a purely technical issue.

Nevertheless, the technicality invoked in this case should not be allowed to prevail over
considerations of substantive justive. After all, the technical defect is not insuperable.
We have said time and again that where there is an ambiguity caused by an omission or
a mistake in the dispositive portion of the decision, this Court may clarify such an
ambiguity by an amendment even after the judgment have become final. 2 In doing so,
the Court may resort to the pleading filed by the parties and the findings of fact and the
conclusions of law expressed in the text or body of the decision. 3

The trial court made definite findings on the complaint for judicial separation of
conjugal property, holding that the petitioner and the private respondent were legally
married and that the properties mentioned by the petitioner were acquired by Jo during
their marriage although they were registered in the name of the apparent dummy.

There is no question therefore that the penultimate paragraph of the decision of the trial
court was a ruling based upon such findings and so should have been embodied in the
dispositive portion. The respondent court should have made the necessary modification
instead of dismissing Civil Case No. 51 and thus upholding mere form over substance.

In the interest of substantive justice, and to expedite these proceedings, we hereby make
such modification.

And now to the merits of Civil Case No. 51.

The Court of Appeals dismissed the complaint on the ground that the separation of the
parties was due to their agreement and not because of abondonment. The respondent
court relied mainly on the testimony of the petitioner, who declared under oath that she
left Dumaguete City, where she and Jo were living together "because that was our
agreement." It held that a agreement to live separately without just cause was void
under Article 221 of the Civil Code and could not sustain any claim of abandonment by
the aggrieved spouse. Its conclusion was that the only remedy availabe to the petitioner
was legal separation under Article 175 of the Civil Code, 4 by virtue of which the
conjugal partnership of property would be terminated.

The petitioner contends that the respondent court has misinterpreted Articles 175, 178
and 191 of the Civil Code. She submits that the agreement between her and the private
respondent was for her to temporarily live with her parents during the initial period of
her pregnancy and for him to visit and support her. They never agreed to separate
permanently. And even if they did, this arrangement was repudiated and ended in
1942, when she returned to him at Dumaguete City and he refused to accept her.

The petitioner invokes Article 178 (3) of the Civil Code, which reads:
 Art. 178. The separation in fact between husband and wife without
judicial approval, shall not affect the conjugal partnership, except that:

xxx xxx xxx

(3) If the husband has abandoned the wife without just cause for at least
one year, she may petition the court for a receivership, or administration
by her of the conjugal partnership property or separation of property.

The above-quoted provision has been superseded by Article 128 of the Family Code,
which states:

Art. 128. If a spouse without just cause abandons the other or fails to
comply with his or her obligations to the family, the aggrieved spouse
may petition the court for receivership, for judicial separation of property,
of for authority to be the sole administrator of the conjugal partnership
property, subject to such precautionary conditions as the court may
impose.

The obligations to the family mentioned in the preceding paragraph refer

to martial, parental or property relations.

A spouse is deemed to have abondoned the other when he or she has left
the conjugal dwelling without any intention of returning. The spouse who
has left the conjugal dwelling for a period of three months or has failed
within the same period to give any information as to his or her
whereabouts shall be prima facie presumed to have no intention of
returning to the conjugal dwelling.

Under the this provision, the aggrieved spouse may petition for judicial separation on
either of these grounds:

1. Abondonment by a spouse of the other without just cause; and

2. Failure of one spouse to comply with his or her obligations to the family
without just cause, even if she said spouse does not leave the other
spouse.

Abandonment implies a departure by one spouse with the avowed intent never to
return, followed by prolonged absence without just cause, and without in the meantime
providing in the least for one's family although able to do so. 5 There must be absolute
cessation of marital relations, duties and rights, with the intention of perpetual
separation. 6 This idea is clearly expressed in the above-quoted provision, which states
that "a spouse is deemed to have abandoned the other when he or she has left the
conjugal dwelling without any intention of returning."
The record shows that as early as 1942, the private respondent had already rejected the
petitioner, whom he denied admission to their conjugal home in Dumaguete City when
she returned from Zamboanguita. The fact that she was not accepted by Jo
demonstrates all too clearly that he had no intention of resuming their conjugal
relationship. Moreover, beginning 1968 until the determination by this Court of the
action for support in 1988, the private respondent refused to give financial support to
the petitioner. The physical separation of the parties, coupled with the refusal by the
private respondent to give support to the petitioner, sufficed to constitute abandonment
as a ground for the judicial separation of their conjugal property.

In addition, the petitioner may also invoke the second ground allowed by Article 128,
for the fact is that he has failed without just cause to comply with his obligations to the
family as husband or parent. Apart form refusing to admit his lawful wife to their
conjugal home in Dumaguete City, Jo has freely admitted to cohabiting with other
women and siring many children by them. It was his refusal to provide for the
petitioner and their daughter that prompted her to file the actions against him for
support and later for separation of the conjugal property, in which actions, significantly,
he even denied being married to her. The private respondent has not established any
just cause for his refusal to comply with his obligations to his wife as dutiful husband.

Their separation thus falls also squarely under Article 135 of the Family Code,
providing as follows:

Art. 135. Any of the following shall be considered sufficient cause for
judicial separation of property:

xxx xxx xxx

(6) That at the time of the petition, the spouse have been separated in fact
for at least one year and reconciliation is highly improbable.

The amendments introduced in the Family Code are applicable to the case before us
although they became effective only on August 3, 1988. As we held in Ramirez v. Court
of Appeals: 7

The greater weight of authority is inclined to the view that an appellate

court, in reviewing a judgment on appeal, will dispose of a question
according to the law prevailing at the term of such disposition, and not
according to the law prevailing at the time of rendition of the appealed
judgement. The court will therefore reverse a judgement which was
correct at the time it was originally rendered where, by statute, there has
been an intermediate change in the law which renders such judgement
erroneous at the time the case was finally disposed of on appeal.
The order of judicial separation of the properties in question is based on the finding of
both the trial and respondent courts that the private respondent is indeed their real
owner. It is these properties that should now be divided between him and the
petitioner, on the assumption that they were acquired during coverture and so belong
to the spouses half and half. As the private respondent is a Chinese citizen, the division
must include such properties properly belonging to the conjugal partnership as may
have been registered in the name of other persons in violation of the Anti-Dummy Law.

The past has caught up with the private respondent. After his extramarital flings and a
succession of illegitimate children, he must now make an accounting to his lawful wife
of the properties he denied her despite his promise to their of his eternal love and care.

WHEREFORE, the petition is GRANTED and the assailed decision of the respondent
court is MODIFIED. Civil Case No. 51 is hereby decided in favor the plaintiff, the
petitioner herein, and the conjugal property of the petitioner and the private respondent
is hereby ordered divided between them, share and share alike. This division shall be
implemented by the trial court after determination of all the properties pertaining to the
said conjugal partnership, including those that may have been illegally registered in the
name of the persons.

SO ORDERED.

Padilla, Griño-Aquino and Bellosillo, JJ., concur.

Footnotes

1 Chua, Segundino G., J., ponente, Coquia, Jorge R. and De Pano,

Nathanael, Jr., P. JJ., concurring, promulgated on January 28, 1987.

2 Republic Surety and Insurance Co., Inc. vs. Intermediate Appellant

Court, 152 SCRA 316; Alvendia vs. Intermediate Appellate Court, 181
SCRA 252.

3 Sentinel Insurance Co., Inc. vs. Court of Appeals. 182 SCRA 516.

4 Art. 175. The conjugal partnership of gains terminates:

(1) Upon the death of either spouse;

(2) When there is a decree of legal separation;

(3) When the marriage is annulled;

 (4) In case of judicial separation of property under Article 191.

5 Tolentino, Commentaries and Jurisprudence on the Civil Code of the

Philippines, 1990 ed., Vol. 1, p. 398.

6 De la Cruz vs. De la Cruz, 22 SCRA 333.

7 72 SCRA 231.

PRIMA PARTOSA-JO v. CA and HO HANG a.k.a. JOSE JO, CONSING

September 26, 2012 §  Leave a comment

PRIMA PARTOSA-JO v. CA and HO HANG a.k.a. JOSE JO, CONSING

December 18, 1992 (216 SCRA 692)

FACTS:
The petitioner, Prima Partosa-Jo, is the legal wife of Jose Jo, herein private respondent.
The latter admitted to have cohabited with 3 women and fathered 15 children. Prima
filed a complaint against the husband for judicial separation of conjugal property in
addition to an earlier action for support which was consolidated. RTC decision was a
definite disposition of the complaint for support but none of that for the judicial
separation of conjugal property. Jose elevated the decision to CA which affirmed
rulings of the trial court. The complaint on the separation of property was dismissed for
lack of cause of action on the ground that separation by agreement was not covered in
Art. 178 of the Civil Code. Prima contested that the agreement between her and Jose
was for her to temporarily live with her parents during the initial period of her
pregnancy and for him to visit and support her. They never agreed to be separated
permanently. She even returned to him but the latter refused to accept her.
ISSUE: WON there is abandonment on the part of Jose Jo to warrant judicial separation
of conjugal property.

HELD:
The Court of Appeals dismissed the complaint on the ground that the separation of the
parties was due to their agreement and not because of abandonment. The respondent
court relied mainly on the testimony of the petitioner, who declared under oath that she
left Dumaguete City, where she and Jo were living together “because that was our
agreement.” It held that a agreement to live separately without just cause was void
under Article 221 of the Civil Code and could not sustain any claim of abandonment by
the aggrieved spouse.

The Court of Appeals dismissed the complaint on the ground that the separation of the
parties was due to their agreement and not because of abandonment. The respondent
court relied mainly on the testimony of the petitioner, who declared under oath that she
left Dumaguete City, where she and Jo were living together “because that was our
agreement.” It held that a agreement to live separately without just cause was void
under Article 221 of the Civil Code and could not sustain any claim of abandonment by
the aggrieved spouse.

Under the Art. 128 of Family Code, the aggrieved spouse may petition for judicial
separation on either of these grounds:

1. Abandonment by a spouse of the other without just cause; and

2. Failure of one spouse to comply with his or her obligations to the family without just
cause, even if she said spouse does not leave the other spouse.
Abandonment implies a departure by one spouse with the avowed intent never to
return, followed by prolonged absence without just cause, and without in the meantime
providing in the least for one’s family although able to do so. 5 There must be absolute
cessation of marital relations, duties and rights, with the intention of perpetual
separation.

The private respondent had already rejected the petitioner, whom he denied admission
to their conjugal home in Dumaguete City when she returned from Zamboanguita. The
fact that she was not accepted by Jo demonstrates all too clearly that he had no intention
of resuming their conjugal relationship. the private respondent refused to give financial
support to the petitioner. The physical separation of the parties, coupled with the
refusal by the private respondent to give support to the petitioner, sufficed to constitute
abandonment as a ground for the judicial separation of their conjugal property.

Their separation thus falls also squarely under Article 135 of the Family Code,
providing as follows:

Art. 135. Any of the following shall be considered sufficient cause for judicial separation
of property:

(6) That at the time of the petition, the spouse have been separated in fact for at least
one year and reconciliation is highly improbable.