SECOND DIVISION

[G.R. No. 183984. April 13, 2011.]

ARTURO SARTE FLORES, petitioner, vs. SPOUSES ENRICO L. LINDO, JR. and
EDNA C. LINDO, respondents.

DECISION

CARPIO, J p:

The Case
Before the Court is a petition for review 1 assailing the 30 May 2008 Decision 2 and the 4 August 2008
Resolution 3 of the Court of Appeals in CA-G.R. SP No. 94003.
The Antecedent Facts
The facts, as gleaned from the Court of Appeals' Decision, are as follows:
On 31 October 1995, Edna Lindo (Edna) obtained a loan from Arturo Flores (petitioner) amounting to
P400,000 payable on 1 December 1995 with 3% compounded monthly interest and 3% surcharge in case of late
payment. To secure the loan, Edna executed a Deed of Real Estate Mortgage 4 (the Deed) covering a property in
the name of Edna and her husband Enrico (Enrico) Lindo, Jr. (collectively, respondents). Edna also signed a
Promissory Note 5 and the Deed for herself and for Enrico as his attorney-in-fact.
Edna issued three checks as partial payments for the loan. All checks were dishonored for insufficiency
of funds, prompting petitioner to file a Complaint for Foreclosure of Mortgage with Damages against respondents.
The case was raffled to the Regional Trial Court of Manila, Branch 33 (RTC, Branch 33) and docketed as Civil
Case No. 00-97942.
In its 30 September 2003 Decision, 6 the RTC, Branch 33 ruled that petitioner was not entitled to judicial
foreclosure of the mortgage. The RTC, Branch 33 found that the Deed was executed by Edna without the consent
and authority of Enrico. The RTC, Branch 33 noted that the Deed was executed on 31 October 1995 while the
Special Power of Attorney (SPA) executed by Enrico was only dated 4 November 1995. AcDHCS
The RTC, Branch 33 further ruled that petitioner was not precluded from recovering the loan from Edna
as he could file a personal action against her. However, the RTC, Branch 33 ruled that it had no jurisdiction over
the personal action which should be filed in the place where the plaintiff or the defendant resides in accordance
with Section 2, Rule 4 of the Revised Rules on Civil Procedure.
Petitioner filed a motion for reconsideration. In its Order 7 dated 8 January 2004, the RTC, Branch 33
denied the motion for lack of merit.
On 8 September 2004, petitioner filed a Complaint for Sum of Money with Damages against
respondents. It was raffled to Branch 42 (RTC, Branch 42) of the Regional Trial Court of Manila, and docketed
as Civil Case No. 04-110858.
Respondents filed their Answer with Affirmative Defenses and Counterclaims where they admitted the
loan but stated that it only amounted to P340,000. Respondents further alleged that Enrico was not a party to the
loan because it was contracted by Edna without Enrico's signature. Respondents prayed for the dismissal of the
case on the grounds of improper venue, res judicata and forum-shopping, invoking the Decision of the RTC,
Branch 33. On 7 March 2005, respondents also filed a Motion to Dismiss on the grounds of res judicata and lack
of cause of action.
 The Decision of the Trial Court
On 22 July 2005, the RTC, Branch 42 issued an Order 8 denying the motion to dismiss. The RTC, Branch
42 ruled that res judicata will not apply to rights, claims or demands which, although growing out of the same
subject matter, constitute separate or distinct causes of action and were not put in issue in the former action.
Respondents filed a motion for reconsideration. In its Order 9 dated 8 February 2006, the RTC, Branch 42 denied
respondents' motion. The RTC, Branch 42 ruled that the RTC, Branch 33 expressly stated that its decision did not
mean that petitioner could no longer recover the loan petitioner extended to Edna.
Respondents filed a Petition for Certiorari and Mandamus with Prayer for a Writ of Preliminary
Injunction and/or Temporary Restraining Order before the Court of Appeals.
The Decision of the Court of Appeals
In its 30 May 2008 Decision, the Court of Appeals set aside the 22 July 2005 and 8 February 2006 Orders
of the RTC, Branch 42 for having been issued with grave abuse of discretion.
The Court of Appeals ruled that while the general rule is that a motion to dismiss is interlocutory and
not appealable, the rule admits of exceptions. The Court of Appeals ruled that the RTC, Branch 42 acted with
grave abuse of discretion in denying respondents' motion to dismiss. ICTcDA
The Court of Appeals ruled that under Section 3, Rule 2 of the 1997 Rules of Civil Procedure, a party
may not institute more than one suit for a single cause of action. If two or more suits are instituted on the basis of
the same cause of action, the filing of one on a judgment upon the merits in any one is available ground for the
dismissal of the others. The Court of Appeals ruled that on a nonpayment of a note secured by a mortgage, the
creditor has a single cause of action against the debtor, that is recovery of the credit with execution of the suit.
Thus, the creditor may institute two alternative remedies: either a personal action for the collection of debt or a
real action to foreclose the mortgage, but not both. The Court of Appeals ruled that petitioner had only one cause
of action against Edna for her failure to pay her obligation and he could not split the single cause of action by
filing separately a foreclosure proceeding and a collection case. By filing a petition for foreclosure of the real
estate mortgage, the Court of Appeals held that petitioner had already waived his personal action to recover the
amount covered by the promissory note.
Petitioner filed a motion for reconsideration. In its 4 August 2008 Resolution, the Court of Appeals
denied the motion.
Hence, the petition before this Court.
The Issue
The sole issue in this case is whether the Court of Appeals committed a reversible error in dismissing
the complaint for collection of sum of money on the ground of multiplicity of suits.
The Ruling of this Court
The petition has merit.
The rule is that a mortgage-creditor has a single cause of action against a mortgagor-debtor, that is, to
recover the debt. 10 The mortgage-creditor has the option of either filing a personal action for collection of sum
of money or instituting a real action to foreclose on the mortgage security. 11 An election of the first bars recourse
to the second, otherwise there would be multiplicity of suits in which the debtor would be tossed from one venue
to another depending on the location of the mortgaged properties and the residence of the parties. 12
The two remedies are alternative and each remedy is complete by itself. 13 If the mortgagee opts to
foreclose the real estate mortgage, he waives the action for the collection of the debt, and vice versa. 14 The Court
explained:
. . . in the absence of express statutory provisions, a mortgage creditor may institute
against the mortgage debtor either a personal action for debt or a real action to foreclose the
mortgage. In other words, he may pursue either of the two remedies, but not both. By such
election, his cause of action can by no means be impaired, for each of the two remedies is
complete in itself. Thus, an election to bring a personal action will leave open to him all the
properties of the debtor for attachment and execution, even including the mortgaged property
 itself. And, if he waives such personal action and pursues his remedy against the mortgaged
property, an unsatisfied judgment thereon would still give him the right to sue for deficiency
judgment, in which case, all the properties of the defendant, other than the mortgaged property,
are again open to him for the satisfaction of the deficiency. In either case, his remedy is
complete, his cause of action undiminished, and any advantages attendant to the pursuit of one
or the other remedy are purely accidental and are all under his right of election. On the other
hand, a rule that would authorize the plaintiff to bring a personal action against the debtor and
simultaneously or successively another action against the mortgaged property, would result not
only in multiplicity of suits so offensive to justice (Soriano v. Enriques, 24 Phil. 584) and
obnoxious to law and equity (Osorio v. San Agustin, 25 Phil. 404), but also in subjecting the
defendant to the vexation of being sued in the place of his residence or of the residence of the
plaintiff, and then again in the place where the property lies. 15 HSCAIT
The Court has ruled that if a creditor is allowed to file his separate complaints simultaneously or
successively, one to recover his credit and another to foreclose his mortgage, he will, in effect, be authorized
plural redress for a single breach of contract at so much costs to the court and with so much vexation and
oppressiveness to the debtor. 16
In this case, however, there are circumstances that the Court takes into consideration.
Petitioner filed an action for foreclosure of mortgage. The RTC, Branch 33 ruled that petitioner was not
entitled to judicial foreclosure because the Deed of Real Estate Mortgage was executed without Enrico's consent.
The RTC, Branch 33 stated:
All these circumstances certainly conspired against the plaintiff who has the burden of
proving his cause of action. On the other hand, said circumstances tend to support the claim of
defendant Edna Lindo that her husband did not consent to the mortgage of their conjugal
property and that the loan application was her personal decision.
Accordingly, since the Deed of Real Estate Mortgage was executed by defendant Edna
Lindo lacks the consent or authority of her husband Enrico Lindo, the Deed of Real Estate
Mortgage is void pursuant to Article 96 of the Family Code.
This does not mean, however, that the plaintiff cannot recover the P400,000 loan plus
interest which he extended to defendant Edna Lindo. He can institute a personal action against
the defendant for the amount due which should be filed in the place where the plaintiff resides,
or where the defendant or any of the principal defendants resides at the election of the plaintiff
in accordance with Section 2, Rule 4 of the Revised Rules on Civil Procedure. This Court has
no jurisdiction to try such personal action. 17
Edna did not deny before the RTC, Branch 33 that she obtained the loan. She claimed, however, that her
husband did not give his consent and that he was not aware of the transaction. 18 Hence, the RTC, Branch 33
held that petitioner could still recover the amount due from Edna through a personal action over which it had no
jurisdiction.
Edna also filed an action for declaratory relief before the RTC, Branch 93 of San Pedro Laguna (RTC,
Branch 93), which ruled:
At issue in this case is the validity of the promissory note and the Real Estate Mortgage
executed by Edna Lindo without the consent of her husband.
The real estate mortgage executed by petition Edna Lindo over their conjugal property
is undoubtedly an act of strict dominion and must be consented to by her husband to be
effective. In the instant case, the real estate mortgage, absent the authority or consent of the
husband, is necessarily void. Indeed, the real estate mortgage is this case was executed on
October 31, 1995 and the subsequent special power of attorney dated November 4, 1995 cannot
be made to retroact to October 31, 1995 to validate the mortgage previously made by
petitioner. ISTDAH
The liability of Edna Lindo on the principal contract of the loan however subsists
notwithstanding the illegality of the mortgage. Indeed, where a mortgage is not valid, the
 principal obligation which it guarantees is not thereby rendered null and void. That obligation
matures and becomes demandable in accordance with the stipulation pertaining to it. Under the
foregoing circumstances, what is lost is merely the right to foreclose the mortgage as a special
remedy for satisfying or settling the indebtedness which is the principal obligation. In case of
nullity, the mortgage deed remains as evidence or proof of a personal obligation of the debtor
and the amount due to the creditor may be enforced in an ordinary action.
In view of the foregoing, judgment is hereby rendered declaring the deed of real estate
mortgage as void in the absence of the authority or consent of petitioner's spouse therein. The
liability of petitioner on the principal contract of loan however subsists notwithstanding the
illegality of the real estate mortgage. 19
The RTC, Branch 93 also ruled that Edna's liability is not affected by the illegality of the real estate
mortgage.
Both the RTC, Branch 33 and the RTC, Branch 93 misapplied the rules.
Article 124 of the Family Code provides:
Art. 124.The administration and enjoyment of the conjugal partnership property shall
belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail,
subject to recourse to the court by the wife for proper remedy, which must be availed of within
five years from the date of contract implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to participate in the
administration of the conjugal properties, the other spouse may assume sole powers of
administration. These powers do not include disposition or encumbrance without authority of
the court or the written consent of the other spouse. In the absence of such authority or consent
the disposition or encumbrance shall be void. However, the transaction shall be construed
as a continuing offer on the part of the consenting spouse and the third person, and may
be perfected as a binding contract upon the acceptance by the other spouse or
authorization by the court before the offer is withdrawn by either or both
offerors. (Emphasis supplied)
Article 124 of the Family Code which applies to conjugal partnership property, is a reproduction of
Article 96 of the Family Code which applies to community property.
Both Article 96 and Article 127 of the Family Code provide that the powers do not include disposition
or encumbrance without the written consent of the other spouse. Any disposition or encumbrance without the
written consent shall be void. However, both provisions also state that "the transaction shall be construed as a
continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding
contract upon the acceptance by the other spouse . . . before the offer is withdrawn by either or both
offerors." HEcIDa
In this case, the Promissory Note and the Deed of Real Estate Mortgage were executed on 31 October
1995. The Special Power of Attorney was executed on 4 November 1995. The execution of the SPA is the
acceptance by the other spouse that perfected the continuing offer as a binding contract between the
parties, making the Deed of Real Estate Mortgage a valid contract.
However, as the Court of Appeals noted, petitioner allowed the decisions of the RTC, Branch 33 and the
RTC, Branch 93 to become final and executory without asking the courts for an alternative relief. The Court of
Appeals stated that petitioner merely relied on the declarations of these courts that he could file a separate personal
action and thus failed to observe the rules and settled jurisprudence on multiplicity of suits, closing petitioner's
avenue for recovery of the loan.
Nevertheless, petitioner still has a remedy under the law.
In Chieng v. Santos, 20 this Court ruled that a mortgage-creditor may institute against the mortgage-
debtor either a personal action for debt or a real action to foreclose the mortgage. The Court ruled that the remedies
are alternative and not cumulative and held that the filing of a criminal action for violation of Batas Pambansa
Blg. 22 was in effect a collection suit or a suit for the recovery of the mortgage-debt. 21 In that case, however,
 this Court pro hac vice, ruled that respondents could still be held liable for the balance of the loan, applying the
principle that no person may unjustly enrich himself at the expense of another. 22
The principle of unjust enrichment is provided under Article 22 of the Civil Code which provides:
Art. 22.Every person who through an act of performance by another, or any other
means, acquires or comes into possession of something at the expense of the latter without just
or legal ground, shall return the same to him.
There is unjust enrichment "when a person unjustly retains a benefit to the loss of another, or when a
person retains money or property of another against the fundamental principles of justice, equity and good
conscience." 23 The principle of unjust enrichment requires two conditions: (1) that a person is benefited without
a valid basis or justification, and (2) that such benefit is derived at the expense of another. 24
The main objective of the principle against unjust enrichment is to prevent one from enriching himself
at the expense of another without just cause or consideration. 25 The principle is applicable in this case
considering that Edna admitted obtaining a loan from petitioners, and the same has not been fully paid without
just cause. The Deed was declared void erroneously at the instance of Edna, first when she raised it as a defense
before the RTC, Branch 33 and second, when she filed an action for declaratory relief before the RTC, Branch
93. Petitioner could not be expected to ask the RTC, Branch 33 for an alternative remedy, as what the Court of
Appeals ruled that he should have done, because the RTC, Branch 33 already stated that it had no jurisdiction
over any personal action that petitioner might have against Edna. aDECHI
Considering the circumstances of this case, the principle against unjust enrichment, being a substantive
law, should prevail over the procedural rule on multiplicity of suits. The Court of Appeals, in the assailed decision,
found that Edna admitted the loan, except that she claimed it only amounted to P340,000. Edna should not be
allowed to unjustly enrich herself because of the erroneous decisions of the two trial courts when she questioned
the validity of the Deed. Moreover, Edna still has an opportunity to submit her defenses before the RTC, Branch
42 on her claim as to the amount of her indebtedness.
WHEREFORE, the 30 May 2008 Decision and the 4 August 2008 Resolution of the Court of Appeals
in CA-G.R. SP No. 94003 are SET ASIDE. The Regional Trial Court of Manila, Branch 42 is directed to proceed
with the trial of Civil Case No. 04-110858.
SO ORDERED.
||| (Flores v. Spouses Lindo, Jr., G.R. No. 183984, [April 13, 2011], 664 PHIL 210-222)
 EN BANC

[G.R. No. L-19565. January 30, 1968.]

ESTRELLA DE LA CRUZ, plaintiff-appellee, vs. SEVERINO DE LA CRUZ, defendant-

appellant.

Estacion & Patriguera for plaintiff-appellee.

Manuel O. Soriano and Pio G. Villoso for defendant-appellant.

SYLLABUS

1. CIVIL LAW; CONJUGAL PARTNERSHIP; SEPARATION OF CONJUGAL PROPERTIES;

ABANDONMENT DEFINED; CASE AT BAR. — To constitute abandonment of the wife by the husband, as
the term is used in Article 178 of the New Civil Code, there must be absolute cessation of marital relations and
duties and rights, with the intention of perpetual separation. The abandonment must not only be physical
estrangement but also amount to financial and moral desertion. In the case at bar, the evidence shows that the
defendant did not intend to leave his wife and children permanently for he continued to give support to his family
despite his absence from the conjugal home. This fact negatives any intent on his part not to return to the conjugal
abode and resume his marital duties and rights. Where there is only physical separation between the spouses
engendered by the husband's leaving the conjugal abode, but the husband continues to manage the conjugal
properties with the same zeal, industry and efficiency as he did prior to the separation, and religiously gives
support to his wife and children, as in the case at bar, the wife's petition for separation of property must be denied.
2. ID.; ID.; ID.; ABUSE OF ADMINISTRATION DEFINED. — Mere refusal or failure of the husband
as administrator of the conjugal partnership to inform the wife of the progress of the family businesses does not
constitute abuse of administration. For "abuse" to exist, it is not enough that the husband perform an act or acts
prejudicial to the wife. Nor is it sufficient that he commits acts injurious to the partnership, for these may be the
result of mere inefficient or negligent administration. Abuse connotes willful and utter disregard of the interests
of the partnership, evidenced by a repetition of deliberate acts and/or omissions prejudicial to the latter.
3. ID.; ID.; ID.; JUDICIAL RESTRAINT ESSENTIAL. — Courts must exercise judicial restraint and
reasoned hesitance in ordering a separation of conjugal properties because the policy of the law is homiletic, to
promote healthy family life and to preserve the union of the spouses, in person, in spirit and in property.
4. ATTORNEY'S FEES; ACTIONS FOR LEGAL SUPPORT. — Because defendant, by leaving the
conjugal abode, has given cause for the plaintiff to seek redress in the courts, and ask for adequate support, an
award of attorney's fees is proper. Ample authority for such award is found in paragraphs 6 and 11 of the new
Civil Code which empower courts to grant counsel's fees "in actions for legal support" and in cases "where the
court deems it just and equitable that attorney's fees . . . should be recovered."

DECISION

CASTRO, J p:

The plaintiff Estrella de la Cruz filed a complaint on July 22, 1958 with the Court of First Instance of
Negros Occidental, alleging in essence that her husband, the defendant Severino de la Cruz, had not only
abandoned her but as well was mismanaging their conjugal partnership properties, and praying for (1) separation
of property, (2) monthly support of P2,500 during the pendency of the action, and (3) payment of P20,000 as
attorney's fees, and costs.
The court a quo forthwith issued an order allowing the plaintiff the amount prayed for as
alimony pendente lite, which, however, upon defendant's motion, was reduced to P2,000.
On June 1, 1961 the trial court rendered judgment ordering separation and division of the conjugal assets,
and directing the defendant to pay to the plaintiff the sum of P20,000 as attorney's fees, with legal interest from
the date of the original complaint, that is from July 22, 1958, until fully paid, plus costs. From this judgment the
defendant appealed to the Court of Appeals which certified the case to us, "it appearing that the total value of the
conjugal assets is over P500,000."
The basic facts are not controverted. The plaintiff and the defendant were married in Bacolod City on
February 1, 1938. Six children were born to them, namely, Zenia (1939), Ronnie (1942), Victoria (1944), Jessie
(1945), Bella (1946), and Felipe (1948). During their coverture they acquired seven parcels of land of the Bacolod
Cadastre, all assessed at P45,429, and three parcels of the Silay Cadastre. all assessed at P43,580. All these parcels
are registered in their names. The hacienda in Silay yielded for the year 1957 a net profit of P3,390.49.
They are also engaged in varied business ventures with fixed assets valued as of December 31, 1956 at
P496,006.92, from which they obtained for that year a net profit of P75,655.78. The net gain of the Philippine
Texboard Factory, the principal business of the spouses, was P90,454,48 for the year 1957. As of December 31,
1959, the total assets of the various enterprises of the conjugal partnership were valued at P1,021,407.68, not
including those of the Top Service Inc., of which firm the defendant has been the president since its organization
in 1959 in Manila with a paid-up capital of P50,000, P10,000 of which was contributed by him. This corporation
owns the Beverly Hills Subdivision in Antipolo, Rizal, the Golden Acres Subdivision and Green Valley
Subdivision in Las Piñas, Rizal, and a lot and building located at M.H. del Pilar, Manila purchased for P285,000,
an amount borrowed from the Manufacturer's Bank and Trust Company.
The spouses are indebted to the Philippine National Bank and the Development Bank of the Philippines
for loans obtained, to secure which they mortgaged the Philippine Texboard Factory, the Silay hacienda, their
conjugal house, and all their parcels of land located in Bacolod City.
The essential issues of fact may be gleaned from the nine errors the defendant imputes to the court a
quo, namely,
1. In finding that the only visit, from May 15, 1955 to the rendition of the decision, made
by the defendant to the conjugal abode to see his wife was on June 15, 1955;
2. In finding that the letter exh. 3 was written by one Nenita Hernandez and that she and
the defendant are living as husband and wife;
3. In finding that since 1951 the relations between the plaintiff and the defendant were
far from cordial and that it was from 1948 that the former has been receiving an allowance from
the latter;
4. In finding that the defendant has abandoned the plaintiff;
5. In finding that the defendant since 1956 has not discussed with his wife the business
activities of the partnership, and that this silence constituted "abuse of administration of the
conjugal partnership;
6. In declaring that the defendant mortgaged the conjugal assets without the knowledge
of the plaintiff and thru false pretences to which the latter was prey;
7. In allowing the plaintiff, on the one hand, to testify on facts not actually known by
her, and, on the other hand, in not allowing the defendant to establish his special defenses;
8. In ordering separation of the conjugal partnership properties; and
9. In sentencing the defendant to pay to the plaintiff attorney's fees in the amount of
P20,000, with interest at the legal rate.
 Two issues of law as well emerge, requiring resolution: (1) Did the separation of the defendant from the
plaintiff constitute abandonment in law that would justify a separation of the conjugal partnership properties? (2)
Was the defendant's failure and/or refusal to inform the plaintiff of the state of their business enterprises such an
abuse of his powers of administration of the conjugal partnership as to warrant a division of the matrimonial
assets?
The plaintiff's evidence may be summarized briefly. The defendant started living in Manila in 1955,
although he occasionally returned to Bacolod City, sleeping in his office at the Philippine Texboard Factory in
Mandalagan, instead of in the conjugal home at 2nd Street, Bacolod City. Since 1955 the defendant had not slept
in the conjugal dwelling, although in the said year he paid short visits during which they engaged in brief
conversations. After 1955 up to the time of the trial, the defendant had never once visited the conjugal abode, and
when he was in Bacolod, she was denied communication with him. He has abandoned her and their children, to
live in Manila with his concubine, Nenita Hernandez. In 1949 she began to suspect the existence of illicit relations
between her husband and Nenita. This suspicion was confirmed in 1951 when she found an unsigned note in a
pocket of one of her husband's polo shirts, which was written by Nenita and in which she asked "Bering" to meet
her near the church. She confronted her husband who forthwith tore the note even as he admitted his amorous
liaison with Nenita. He then allayed her fears by vowing to forsake his mistress. Subsequently, in November
1951, she found in the iron safe of her husband a letter, exh. C, also written by Nenita. In this letter the sender
(who signed as "D") apologized for her conduct, and expressed the hope that the addressee ("Darling") could join
her in Baguio as she was alone in the Patria Inn and lonely in "a place for honeymooners". Immediately after her
husband departed for Manila the following morning, the plaintiff enplaned for Baguio, where she learned that
Nenita had actually stayed at the Patria Inn, but had already left for Manila before her arrival. Later she met her
husband in the house of a relative in Manila from whence they proceeded to the Avenue Hotel where she again
confronted him about Nenita. He denied having further relations with this woman.
Celia Bañez, testifying for the plaintiff, declared that she was employed as a cook in the home of the
spouses from May 15, 1955 to August 15, 1958, and that during the entire period of her employment she saw the
defendant in the place only once. This declaration is contradicted, however, by the plaintiff herself who testified
that in 1955 the defendant "used to have a short visit there," which statement implies more than one visit.
The defendant, for his part, denied having abandoned his wife and children, but admitted that in 1957,
or a year before the filing of the action, he started to live separately from his wife. When he transferred his living
quarters to his office in Mandalagan, Bacolod City, his intention was not, as it never has been, to abandon his
wife and children, but only to teach her a lesson as she was quarrelsome and extremely jealous of every woman.
He decided to live apart from his wife temporarily because at home he could not concentrate on his work as she
always quarreled with him, while in Mandalagan he could pass the nights in peace. Since 1953 he stayed in Manila
for some duration of time to manage their expanding business and look for market outlets for their texboard
products. Even the plaintiff admitted in both her original and amended complaints that "sometime in 1953,
because of the expanding business of the herein parties, the defendant established an office in the City of Manila,
wherein some of the goods, effects and merchandise manufactured or produced in the business enterprises of the
parties were sold or disposed of". From the time he started living separately in Mandalagan up to the filing of the
complaint, the plaintiff herself furnished him food and took care of his laundry. This latter declaration was not
rebutted by the plaintiff.
The defendant with vehemence, denied that he has abandoned his wife and family, averring that he has
never failed, even for a single month, to give them financial support, as witnessed by the plaintiff's admission in
her original and amended complaints as well as in open court that during the entire period of their estrangement,
he was giving her around P500 a month for support. In point of fact, his wife and children continued to draw
allowances from his office of a total ranging from P1,200 to P1,500 a month. He financed the education of their
children, two of whom were studying in Manila at the time of the trial and were not living with the plaintiff. While
in Bacolod City, he never failed to visit his family, particularly the children. His wife was always in bad need of
money because she played mahjong, an accusation which she did not traverse, explaining that she
played mahjong to entertain herself and forget the infidelities of her husband.
Marcos V. Ganaban, the manager of the Philippine Texboard Factory, corroborated the testimony of the
defendant on the matter of the support the latter gave to his family, by declaring in court that since the start of his
employment in 1950 as assistant general manager, the plaintiff has been drawing an allowance of P1,000 to P1,500
monthly, which amount was given personally by the defendant or, in his absence, by the witness himself.
 The defendant denied that he ever maintained a mistress in Manila. He came to know Nenita Hernandez
when she was barely 12 years old, but had lost track of her thereafter. His constant presence in Manila was
required by the pressing demands of an expanding business. He denied having destroyed the alleged note which
the plaintiff claimed to have come from Nenita, nor having seen, previous to the trial, the letter exh. C. The
allegation of his wife that he has a concubine is based on mere suspicion. He has always been faithful to his wife,
and not for a single instance has he been caught or surprised by her with another woman.
On the matter of the alleged abuse by the defendant of his powers of administration of the conjugal
partnership, the plaintiff declared that the defendant refused and failed to inform her of the progress of their
various business concerns. Although she did not allege, much less prove, that her husband had dissipated the
conjugal properties, she averred nevertheless that her husband might squander and dispose of the conjugal assets
in favor of his concubine. Hence, the urgency of separation of property.
The defendant's answer to the charge of mismanagement is that he has applied his industry, channeled
his ingenuity, and devoted his time, to the management, maintenance and expansion of their business concerns,
even as his wife threw money away at the mahjong tables. Tangible proof of his endeavors is that from a single
cargo truck which he himself drove at the time of their marriage, he had built up one business after another, the
Speedway Trucking Service, the Negros Shipping Service, the Bacolod Press, the Philippine Texboard Factory,
and miscellaneous other business enterprises worth over a million pesos; that all that the spouses now own have
been acquired through his diligence, intelligence and industry; that he has steadily expanded the income and assets
of said business enterprises from year to year, contrary to the allegations of the complainant, as proved by his
balance sheet and profit and loss statements for the year 1958 and 1959 (exhibits 1 and 2); and that out of the
income of their enterprises he had purchased additional equipment and machineries and has partially paid their
indebtedness to the Philippine National Bank and the Development Bank of the Philippines.
It will be noted that the plaintiff does not ask for legal separation. The evidence presented by her to prove
concubinage on the part of the defendant, while pertinent and material in the determination of the merits of a
petition for legal separation, must in this case be regarded merely as an attempt to bolster her claim that the
defendant had abandoned her, which abandonment, if it constitutes abandonment in law, would justify separation
of the conjugal assets under the applicable provisions of article 178 of the new Civil Code which read: "The
separation in fact between husband and wife without judicial approval shall not affect the conjugal partnership,
except that . . . 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." In addition to abandonment as a ground, the plaintiff also invokes article 167 of the new Civil Code in
support of her prayer for division of the matrimonial assets. This article provides that "In case of abuse of powers
of administration of the conjugal partnership property by the husband, the courts, on the petition of the wife, may
provide for a receivership, or administration by the wife, or separation of property." It behooves us, therefore, to
inquire, in the case at bar, whether there has been abandonment, in the legal sense, by the defendant of the plaintiff,
and/or whether the defendant has abused his powers of administration of the conjugal partnership property, so as
to justify the plaintiff's plea for separation of property.
We have made a searching scrutiny of the record, and it is our considered view that the defendant is not
guilty of abandonment of his wife, nor of such abuse of his powers of administration of the conjugal partnership,
as to warrant division of the conjugal assets.
The extraordinary remedies afforded to the wife by article 178 when she has been abandoned by the
husband for at least one year are the same as those granted to her by article 167 in case of abuse of the powers of
administration by the husband. To entitle her to any of these remedies, under article 178, there must be real
abandonment, and not mere separation. 1 The abandonment must not only be physical estrangement but also
amount to financial and moral desertion.
Although an all-embracing definition of the term "abandonment" is yet to be spelled out in explicit
words, we nevertheless can determine its meaning from the context of the law as well as from its ordinary usage.
The concept of abandonment in article 178 may be established in relation to the alternative remedies granted to
the wife when she has been abandoned by the husband, namely, receivership, administration by her, or separation
of property, all of which are designed to protect the conjugal assets from waste and dissipation rendered imminent
by the husband's continued absence from the conjugal abode, and to assure the wife of a ready and steady source
of support. Therefore, physical separation alone is not the full meaning of the term "abandonment", if the husband,
despite his voluntary departure from the society of his spouse, neither neglects the management of the conjugal
partnership nor ceases to give support to his wife.
The word "abandon", in its ordinary sense, means to forsake entirely; to forsake or renounce
utterly. 2 The dictionaries trace this word to the root idea of "putting under a ban." The emphasis is on the finality
and the publicity with which some thing or body is thus put in the control of another, and hence the meaning of
giving up absolutely, with intent never again to resume or claim one's rights or interests. 3 When referring to
desertion of a wife by a husband, the word has been defined as "the act of a husband in voluntarily leaving his
wife with intention to forsake her entirely, never to return to her, and never to resume his marital duties towards
her, or to claim his marital rights; such neglect as either leaves the wife destitute of the common necessaries of
life, or would leave her destitute but for the charity of others." 4 The word "abandonment," when referring to the
act of one consort of leaving the other, is "the act of the husband or the wife who leaves his or her consort willfully,
and with an intention of causing perpetual separation." 5Giving to the word "abandoned," as used in article 178,
the meaning drawn from the definitions above reproduced, it seems rather clear that to constitute abandonment
of the wife by the husband, there must be absolute cessation of marital relations and duties and rights, with the
intention of perpetual separation.
Coming back to the case at bar, we believe that the defendant did not intend to leave his wife and children
permanently. The record conclusively shows that he continued to give support to his family despite his absence
from the conjugal home. This fact is admitted by the complainant, although she minimized the amount of support
given, saying that it was only P500 monthly. There is good reason to believe, however, that she and the children
received more than this amount, as the defendant's claim that his wife and children continued to draw from his
office more than P500 monthly was substantially corroborated by Marcos Ganaban, whose declarations were not
rebutted by the plaintiff. And then there is at all no showing that the plaintiff and the children were living in want.
On the contrary, the plaintiff admitted, albeit reluctantly, that she frequently played mahjong, from which we can
infer that she had money to spare.
The fact that the defendant never ceased to give support to his wife and children negatives any intent on
his part not to return to the conjugal abode and resume his marital duties and rights. In People v. Schelske, 6 it
was held that where a husband, after leaving his wife, continued to make small contributions at intervals to her
support and that of their minor child, he was not guilty of their "abandonment", which is an act of separation with
intent that it shall be perpetual, since contributing to their support negative such intent. In In re Hess' Estate,
supra, it was ruled that a father did not abandon his family where the evidence disclosed that he almost always
did give his wife part of his earnings during the period of their separation and that he gradually paid some old
rental and grocery bills.
With respect to the allegation that the defendant maintained a concubine, we believe, contrary to the
findings of the court a quo, that the evidence on record fails to preponderate in favor of the plaintiff s thesis. The
proof that Nenita Hernandez was the concubine of the defendant and that they were living as husband and wife
in Manila, is altogether too indefinite. Aside from the uncorroborated statement of the plaintiff that she knew that
Nenita Hernandez was her husband's concubine, without demonstrating by credible evidence the existence of
illicit relations between Nenita and the defendant, the only evidence on record offered to link the defendant to his
alleged mistress is exh. C. The plaintiff however failed to connect authorship of the said letter with Nenita, on the
face whereof the sender merely signed as "D" and the addressee was one unidentified "Darling." The plaintiff's
testimony on cross-examination, hereunder quoted, underscores such failure:
Q. You personally never received any letter from Nenita?
A. No.
Q. Neither have you received on any time until today from 1949 from Nenita?
A. No.
Q. Neither have you written to her any letter yourself until now?
A. Why should I write a letter to her.
Q. In that case, Mrs. De la Cruz, you are not familiar with the handwriting of Nenita. Is
that right?
 A. I can say that Nenita writes very well.
Q. I am not asking you whether she writes very well or not but, my question is this: In
view of the fact that you have never received a letter from Nenita, you have
not sent any letter to her, you are not familiar with her handwriting?
A. Yes.
Q. You have not seen her writing anybody?
A. Yes.
Anent the allegation that the defendant had mismanaged the conjugal partnership property, the record
presents a different picture. There is absolutely no evidence to show that he has squandered the conjugal assets.
Upon the contrary, he proved that through his industry and zeal, the conjugal assets at the time of the trial had
increased to a value of over a million pesos.
The lower court likewise erred in holding that mere refusal or failure of the husband as administrator of
the conjugal partnership to inform the wife of the progress of the family businesses constitutes abuse of
administration. For "abuse" to exist, it is not enough that the husband perform an act or acts prejudicial to the
wife. Nor is it sufficient that he commit acts injurious to the partnership, for these may be the result of mere
inefficient or negligent administration. Abuse connotes willful and utter disregard of the interests of the
partnership, evidenced by a repetition of deliberate acts and/or omissions prejudicial to the latter. 7
If there is only physical separation between the spouses (and nothing more), engendered by the husband's
leaving the conjugal abode, but the husband continues to manage the conjugal properties with the same zeal,
industry, and efficiency as he did prior to the separation, and religiously gives support to his wife and children,
as in the case at bar, we are not disposed to grant the wife's petition for separation of property. This decision may
appear to condone the husband's separation from his wife; however, the remedies granted to the wife by articles
167 and 178 are not to be construed as condonation of the husband's act but are designed to protect the conjugal
partnership from waste and shield the wife from want. Therefore, a denial of the wife's prayer does not imply a
condonation of the husband's act but merely points up the insufficiency or absence of a cause of action.
Courts must needs exercise judicial restraint and reasoned hesitance in ordering a separation of conjugal
properties because the basic policy of the law is homiletic, to promote healthy family life and to preserve the
union of the spouses, in person, in spirit and in property.
"Consistently with its policy of discouraging a regime of separation as not in harmony
with the unity of the family and the mutual affection and help expected of the spouses, the Civil
Code (both old and new) requires that separation of property shall not prevail unless expressly
stipulated in marriage settlements before the union is solemnized or by formal judicial decree
during the existence of the marriage (Article 190, new Civil Code, Article 1432, old Civil Code);
and in the latter case, it may only be ordered by the court for causes specified in Article 191 of
the new Civil Code." 8
Furthermore, a judgment ordering the division of conjugal assets where there has been no real
abandonment, the separation not being wanton and absolute, may altogether slam shut the door for possible
reconciliation. The estranged spouses may drift irreversibly further apart; the already broken family solidarity
may be irretrievably shattered; and any flickering hope for a new life together may be completely and finally
extinguished.
The monthly alimony in the sum of P2,000 which was allowed to the wife in 1958, long before the
devaluation of the Philippine peso in 1962, should be increased to P3,000.
On the matter of attorney's fees, it is our view that because the defendant, by leaving the conjugal abode,
has given cause for the plaintiff to seek redress in the courts, and ask for adequate support, an award of attorney's
fees to the plaintiff must be made. Ample authority for such award is found in paragraphs 6 and 11 of article 2208
of the new Civil Code which empower courts to grant counsel's fees "in actions for legal support" and in cases
"where the court deems it just and equitable that attorney's fees . . . should be recovered." However, an award of
P10,000, in our opinion, is, under the environmental circumstances, sufficient.
 This Court would be remiss if it did not, firstly, remind the plaintiff and the defendant that the law enjoins
husband and wife to live together, and, secondly, exhort them to avail of — mutually, earnestly and steadfastly
— all opportunities for reconciliation to the end that their marital differences may be happily resolved, and
conjugal harmony may return and, on the basis of mutual respect and understanding, endure.
ACCORDINGLY, the judgment a quo, insofar as it decrees separation of the conjugal properties, is
reversed and set aside. Conformably to our observations, however, the defendant is ordered to pay to the plaintiff,
in the concept of support, the amount of P3,000 per month, until he shall have rejoined her in the conjugal home,
which amount may, in the meantime, be reduced or increased in the discretion of the court a quo as circumstances
warrant. The award of attorney's fees to the plaintiff is reduced. to P10,000, without interest. No pronouncement
as to costs.
||| (De la Cruz v. De la Cruz, G.R. No. L-19565, [January 30, 1968], 130 PHIL 324-338)