Memorandum Respondent

Republic of the Philippines REGIONAL TRIAL COURT 7TH JUDICIAL REGION BRANCH 10, CEBU CITY

GERARD DELOS REYES Petitioner,

-versus-

Civil No. _____________  For: Declaration of Nullity of Marriage and Withdrawal of Support

GERALDINE DELOS REYES Respondent,

X-------------------------------------------------------X MEMORANDUM FOR RESPONDENT

COME NOW RESPONDENT, through the undersigned counsel, unto this Honorable Court most respectfully submit this Memorandum in the above-entitled case and aver that: PREFATORY STATEMENT

The respondent respectfully seeks that this Honorable Court deny the petition for the declaration of the nullity of marriage and dismiss the petition for withdrawal o f support. STATEMENT OF FACTS

On January 5, 2011, Geraldine delos Reyes (respondent) and Gerard delos Reyes (petitioner) were married. Petitioner, a week after the marriage, went abroad that led the spouses to communicate regularly through email, chat or telephone. In July 2012, petitioner came home for a one-month vacation and left in the middle of August 2012. Within one month after petitioner left, respondent discovered that she was  pregnant which she immediately communicated to petitioner. Because of the news, petitioner  planned to come home when respondent was scheduled to give birth. In April 2013, petitioner came home and on May 3, 2013, respondent gave birth to their daughter named Joanna. After respondent gave birth, petitioner again left for abroad and their communication was still regular. During this period, petitioner continued to send regular monthly support. However, in February 2014, petitioner suddenly stopped sending regular support without any explanation and refused refused to contact respondent for a month. As respondent was was worried about the petitioner, she tried to contact him but he was always out when she called. Since then, he did not also answer her emails and never communicated to her.

In June 2014, respondent was surprised to receive a summons for a petition for declaration of nullity of marriage filed by petitioner on the ground of psychological incapacity. In the summons, petitioner raised the following allegations: 1. that respondent is only after his money as she is always asking him for money; 2. that respondent is an unfaithful wife because she got pregnant from another man; and 3. that the child is not his because the child was born on May 3, 2013, less than nine months from the time they had sexual intercourse on August 9, 2012. ISSUES

I. WHETHER OR NOT THE PETITION FOR THE DECLARATION OF NULLITY OF MARRIAGE ON THE GROUND OF PSYCHOLOGICAL INCAPACITY UNDER ARTICLE 36 OF THE FAMILY CODE SHOULD BE GRANTED UPON THE ALLEGATION THAT RESPONDENT WAS AN UNFAITHFUL WIFE. II. WHETHER OR NOT THE CLIENT HAS THE RIGHT TO RECEIVE SUPPORT UNDER ARTICLES 194 AND 195 OF THE FAMILY CODE UPON THE ALLEGATION THAT THE RESPONDENT WAS ALWAYS ASKING FOR MONEY. ARGUMENTS

On the I ssue of Psychological I ncapacity 1. The psychological incapacity reports were based on the information without the participation of the respondent.

In Rumbaua vs Rumbaua,1 the Supreme Court observed that the psychological incapacity conducted by Dr. Tayag were based on the information fed to her by only one side  –   the  petitioner –   whose bias in favor of her cause cannot be doubted. Dr. Tayag only diagnosed the respondent from the prism of a third party account; she did not actually hear, see and evaluate the respondent and how he would have reacted and responded to the doctor’s probes. Hence the Court ruled that these observations and conclusions are insufficiently in-depth and comprehensive to warrant the conclusion that a psychological incapacity existed that prevented the respondent from complying with the essential o bligations of marriage. In this case, the petitioner contends that the pyshological report conducted by his expert examined and interviewed him and his family as regards the respondents behavior. The examination was not based only on one testimony but a good number. With the number of  persons involved in said examination, the findings by the expert should be meritorious. Petitioner’s contention is without merit. The number of persons interviewed and examined by the expert is immaterial. Reports like this according to the Court is biased and insufficient for the expert is not given the chance to personally observe and assess the respondent. While the various tests administered on the petitioner could have been used as a fair gauge to assess the respondent’s own psychological condition, this same statement cannot be made with respect to the respondent’s condition. To make conclusions and generalizations on the respondent’s psychological condition based on the information fed by only one side is not different from admitting hearsay evidence as proof of the truthfulness of the content of such evidence.

1

 612 Phil 1061-1092 (2009).

2. Sexual infidelity per se does not necessarily constitute psychological incapacity.

In the case of  Kalaw vs Fernandez , 2 the husband alleged that Malyn (the wife) was  psychologically incapacitated to perform and comply with the essential marital obligations at the time of the celebration of their marriage. He further claimed that her psychological incapacity was manifested by her immaturity and irresponsibility towards Tyrone and their children during their co-habitation, as shown by Malyn’s following acts: 1. she left the children without proper care and attention as she played mahjong all day and all night; 2. she left the house to party with male friends and returned in the early hours of the following day; and 3. she committed adultery on June 9, 1985, which act Tyrone discovered in flagrante delicto. Here, the Supreme Court ruled that even assuming arguendo that petitioner was able to  prove that respondent had an extramarital affair with another man, that one instance of sexual infidelity cannot, by itself, be equated with obsessive need for attention from other men. Sexual infidelity  per se  is a ground for legal separation, but it does not necessarily constitute  psychological incapacity. Psychological incapacity is the downright incapacity or inability to take cognizance of and to assume the basic marital obligations. The plaintiff must prove that the incapacitated party, based on his or her actions or behavior, suffers a serious psychological disorder that completely disables him or her from understanding and discharging the essential obligations of the marital state. The psychological problem must be grave, must have existed at the time of marriage, and must be incurable. In this case, the petitioner is under the impression that the respondent was unfaithful  because she gave birth less than nine (9) months after their last sexual intercourse. He went abroad after their wedding and suspected, because of the period of conception, that the respondent was unfaithful. Further, because the respondent did not meet petitioner’s family after she gave birth confirms the suspicion of infidelity. This contention is without basis. The petitioner relies solely on the period of conception and because Joanna was born less than nine months from their sexual intercourse, he concluded immediately that the respondent was unfaithful. It is to be noted that other than his and his family’s suspicion, the petitioner has no evidence proving the respondent’s infidelity. Further, assuming arguendo that the respondent was unfaithful, it is well settled that sexual infidelity  per se  does not necessarily constitute psychological incapacity. Psychological incapacity is the downright incapacity or inability to take cognizance of and to assume the basic marital obligations. The petitioner failed to prove that respondent’s unfaithfulness disables her from understanding and discharging the essential obligations of the marital state. 3. The three characteristics of psychological incapacity are not present.

The Supreme Court ruled in Santos vs Court of Appeals 3 that that psychological incapacity required by Art. 36 must be characterized by (a) gravity, (b) juridical antecedence and (c) incurability. The incapacity must be grave or serious such that the party would be incapable of carrying out the ordinary duties required in marriage. It must be rooted in the history of the  party antedating the marriage, although the overt manifestations may emerge only after the marriage. It must be incurable or, even if it were otherwise, the cure would be beyond the means of the party involved.

2

 637 Phil 460-477 (2011).  240 SCRA 20 (1995).

3

In this case, the petitioner alleges that the respondent’s act of not meeting his family while being pregnant and after she gave birth. For the petitioner, this is grave and serious. Such action confirms the suspicion of infidelity. The petitioner’s allegation is wrong. The respondent may not have contacted or appeared  before the petitioner’s family during pregnancy and after giving birth; however, this is not the gravity contemplated in the ruling of the SC. Gravity incapacitates the spouse of carrying out the ordinary duties required in marriage. There is no law requiring or obligating the spouse to meet with the in-laws. Assuming arguendo that such act by the respondent is grave, still the other two characteristics of juridical antecedence and incurabilty are absent. 4. The allegation of infidelity occured only after marriage.

In the case of  Dedel vs CA, 4   the petitioner, the husband, accused his wife of sexual infidelity, the Supreme Court noted that the infidelity occurred only after the marriage said: “The difficulty in resolving the problem lies in the fact that a personality disorder is a very complex and elusive phenomenon which defies easy analysis and definition. It appears that respondent’s  promiscuity did not exist prior to or at the inception of the marriage. What is, in fact, disclosed  by the records is a blissful marital union at its celebration, later affirmed in church rites, and which produced four children.” In this case, the petitioner, through its psychological report, presents that during  pregnancy and after giving birth, respondent no longer communicated with his family. Such act was a confirmation to the suspicion of infidelity. He contends that had he been faithful, there would be no reason for her not to meet with his family. This contention is without merit. What is proven in the petitioner’s contention, if at all, is the existence of infidelity only after marriage. Here, the petitioner failed to prove that the alleged infidelity of the respondent already existed at the time of the celebration of marriage. It is undisputed that the spouses had a blissful and harmonous relationship although they had a long distance relationship. To constitute psychological incapacity, there should be an evidence that respondent’s  infidelity existed at the time of the celebration of marriage. That is to prove the characteristic or element of juridical antecedence in a case of nullity on the ground of  psychological incapacity. Further, it must be shown that the acts of unfaithfulness are manifestations of a disordered personality which make petitioner completely unable to discharge the essential obligations of marriage. This, the petitioner also failed to prov e.

On the issue of  Support 1. The mere act of marriage creates an obligation on the part of the husband to support the wife.

Article 194 of the Family Code defines support as “everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.” Article 195 further provides “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.” In the case of  Mendoza vs Parungao, 5   the Court ruled that the mere act of marriage creates an obligation on the part of the husband to support the wife. Also, in Santos v. Sweeney,6 4

 466 Phil 226-235(2004).  49 Phil. 271 (1926).

5

the Court ruled that it is the fact of a valid marriage that gives rise to the duty of husbands and wives to support each other. In this case, the petitioner contends that the respondent was always asking for money and for that, she should not be given support. This contention is the result of the suspicion that the respondent was unfaithful and may spend the money not only for her but also for her paramour. This contention is not correct. First, the respondent’s unfaithfulness was not proven by any evidence. Second, there exists a valid marriage between the petitioner and the respondent. Articles 194 and 195 of the Family Code are clear that the petitioner, being the husband, is obliged to support the respondent, being his wife, as regards everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. 2. The mere allegation that the respondent committed adultery does not bar her from the right to receive support pendente lite.

Article 198 of the Family Code provides that “[d]uring the proceedings for legal separation or for annulment of marriage, and for declaration of nullity of marriage, the spouses and their children shall be supported from the properties of the absolute community or the conjugal partnership.” Section 1 of Rule 61 of Civil Procedure provides that “[a]t the commencement of the  proper action or proceeding, or at any time prior to the judgment or final order, a verified application for support pendente lite may be filed by any party stating the grounds for the claim and the financial conditions of both parties, and accompanied by affidavits, depositions or other authentic documents in support thereof.” In explaining the law, Sta. Maria said that “adultery of the wife is a defense in an action for support. However, the alleged adultery of the wife must be established by competent evidence. The mere allegation that the wife committed adultery will not bar her from the right to receive support pendente lite.”7 In the case of  Reyes vs Ines-Luciano,8 the Court ruled that “[a]dultery of the wife is a defense in an action for support. However, it is sufficient that the court ascertain the kind and amount of evidence which it may deem sufficiently to enable it to justly resolve the application. It is enough that the facts be established by affidavits or other documentary evidence appearing in the record. In actions for separation the wife is entitled to support from the husband despite the fact that a case for adultery had been filed by the husband against her. Adultery is a good defense and if properly proved and sustained will defeat the action.” In this case, the petitoner merely alleges that the respondent was unfaithful and should not be given support. Although adultery is a defense for the petitioner in an action for support, it is to be noted that he cannot bar the respondent from her right to receive support pendente lite on mere allegations. The petitioner relied solely on the date of the birth of Joanna on May 3, 2013 from the date of sexual intercourse with the client on August 9, 2012. From said event, petitioner concluded that she was unfaithful. Clearly, the adultery of the respondent was a mere allegation unsupported by competent evidence. Hence, she should be entitled to support. Further, Article 198 is clear that the respondent and her child are entitled to support during the proceedings for declaration of nullity of marriage.

6

 4 Phil. 79 (1904).  Melencio Sta. Maria, Persons and Family Relations (Manila: Rex Bookstore, 2015), 799. 8  88 SCRA 803 (1979). 7

PRAYER 

WHEREFORE, in consideration of all the foregoing, the respondent respectfully prays that the Honorable Court deny the petition for the declaration of the nullity of marriage and dismiss the petition for withdrawal of support.

Respectfully submitted. Cebu, Philippines, this 27th day of March 2017.

POLITO AND ASSOCIATES Counsel for Respondent Address: EH 301, Unit 1200, Tall Building Condominium, Junquera, Cebu

By:

Atty. Rabindranath S. Polito IBP Lifetime No. 12345; 5/10/2005 PTR No. 777654; 1/10/2011 Roll of Attorney No. 2005-006341 MCLE Compliance No. III –  000897