Case

Analysis
R61.
6. Del
Socorro vs.
Van Wilsem
Introduction Who : Petitioner, Norma A. Del Socorro
What : filed a complaint affidavit
Where : with the Provincial Prosecutor of Cebu City against respondent, Ernst Johan Van Wilsem for
violation of Section 5 , paragraph E (2) of R.A. 9262 for the latter’s unjust refusal to support his minor
child with the petitioner.
Others:
FACTS Petitioner Norma A. Del Socorro and respondent Ernst Johan Brinkman Van Wilsem contracted marriage
in Holland on September 25, 1990.

On January 19, 1994, they were blessed with a son named Roderigo Norjo Van Wilsem, who at the time
of the filing of the instant petition was sixteen (16) years of age.

Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a Divorce Decree issued by the
appropriate Court of Holland.

At that time, their son was only eighteen (18) months old. Thereafter, petitioner and her son came
home to the Philippines.

According to petitioner, respondent made a promise to provide monthly support to their son in the
amount of Two Hundred Fifty (250) Guildene (which is equivalent to Php17,500.00 more or less).

However, since the arrival of petitioner and her son in the Philippines, respondent never gave support
to the son, Roderigo.

Not long thereafter, respondent came to the Philippines and remarried in Pinamungahan, Cebu, and
since then, have been residing thereat. Respondent and his new wife established a business known as
Paree Catering, located at Barangay Tajao, Municipality of Pinamungahan, Cebu City.

To date, all the parties, including their son, Roderigo, are presently living in Cebu City.

On August 28, 2009, petitioner, through her counsel, sent a letter demanding for support from
respondent. However, respondent refused to receive the letter.
RTC Upon motion and after notice and hearing, the RTC-Cebu issued a Hold Departure Order against
respondent.

Consequently, respondent was arrested and, subsequently, posted bail.

Pending the resolution thereof, respondent was arraigned.

On February 19, 2010, the RTC-Cebu issued the herein assailed Order,
dismissing the instant criminal case against respondent on the ground that the facts charged in the
 information do not constitute an offense with respect to the respondent who is an alien, the dispositive
part of which states:
WHEREFORE, the Court finds that the facts charged in the information do not constitute an offense with
respect to the accused, he being an alien, and accordingly, orders this case DISMISSED.

Thereafter, petitioner filed her Motion for Reconsideration thereto reiterating respondent’s obligation
to support their child under Article 195 of the Family Code, thus, failure to do so makes him liable under
R.A. No. 9262 which "equally applies to all persons in the Philippines who are obliged to support their
minor children regardless of the obligor’s nationality."

On September 1, 2010, the lower court issued an Order denying petitioner’s Motion for
Reconsideration and reiterating its previous ruling. Thus:
x x x The arguments therein presented are basically a rehash of those advanced earlier in the
memorandum of the prosecution. Thus, the court hereby reiterates its ruling that since the accused is a
foreign national he is not subject to our national law (The Family Code) in regard to a parent’s duty
and obligation to givesupport to his child.

Consequently, he cannot be charged of violating R.A. 9262 for his alleged failure to support his child.

Unless it is conclusively established that R.A. 9262 applies to a foreigner who fails to give support to
his child, notwithstanding that he is not bound by our domestic law which mandates a parent to give
such support, it is the considered opinion of the court that no prima facie case exists against the
accused herein, hence, the case should be dismissed.

CA

Issue Hence, the present Petition for Review on Certiorari raising the following issues:

1. Whether or not a foreign national has an obligation to support his minor child under Philippine law;
and

2. Whether or not a foreign national can be held criminally liable under R.A. No. 9262 for his unjustified
failure to support his minor child.

Supreme
Court Now, on the matter of the substantive issues, We find the petition meritorious. Nonetheless, we do not
fully agree with petitioner’s contentions.

To determine whether or not a person is criminally liable under R.A. No. 9262, it is imperative that the
legal obligation to support exists.

Petitioner invokes Article 195 of the Family Code, which provides the parent’s obligation to support his
child. Petitioner contends that notwithstanding the existence of a divorce decree issued in relation to
Article 26 of the Family Code, respondent is not excused from complying with his obligation to support
his minor child with petitioner.

On the other hand, respondent contends that there is no sufficient and clear basis presented by
petitioner that she, as well as her minor son, are entitled to financial support.
Respondent also added that by reason of the Divorce Decree, he is not obligated to petitioner for any
financial support.
On this point, we agree with respondent that petitioner cannot rely on Article 195 of the New Civil Code
in demanding support from respondent, who is a foreign citizen, since Article 15 of the New Civil Code
stresses the principle of nationality.

In other words, insofar as Philippine laws are concerned, specifically the provisions of the Family Code
on support, the same only applies to Filipino citizens.

By analogy, the same principle applies to foreigners such that they are governed by their national law
with respect to family rights and duties.

The obligation to give support to a child is a matter that falls under family rights and duties.

Since the respondent is a citizen of Holland or the Netherlands, we agree with the RTC-Cebu that he is
subject to the laws of his country, not to Philippine law, as to whether he is obliged to give support to
his child, as well as the consequences of his failure to do so.

In the case of Vivo v. Cloribel, the Court held that –

Furthermore, being still aliens, they are not in position to invoke the provisions of the Civil Code of the
Philippines, for that Code cleaves to the principle that family rights and duties are governed by their
personal law, i.e.,the laws of the nation to which they belong even when staying in a foreign country (cf.
Civil Code, Article 15).

It cannot be gainsaid, therefore, that the respondent is not obliged to support petitioner’s son under
Article 195 of the Family Code as a consequence of the Divorce Covenant obtained in Holland. This does
not, however, mean that respondent is not obliged to support petitioner’s son altogether.

In international law, the party who wants to have a foreign law applied to a dispute or case has the
burden of proving the foreign law.

In the present case, respondent hastily concludes that being a national of the Netherlands, he is
governed by such laws on the matter of provision of and capacity to support. While respondent
pleaded the laws of the Netherlands in advancing his position that he is not obliged to support his
son, he never proved the same.

It is incumbent upon respondent to plead and prove that the national law of the Netherlands does not
impose upon the parents the obligation to support their child (either before, during or after the issuance
of a divorce decree), because Llorente v. Court of Appeals, has already enunciated that:

True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take
judicial notice of them. Like any other fact, they must be alleged and proved.

In view of respondent’s failure to prove the national law of the Netherlands in his favor, the doctrine
of processual presumption shall govern.

Under this doctrine, if the foreign law involved is not properly pleaded and proved, our courts will
presume that the foreign law is the same as our local or domestic or internal law.

Thus, since the law of the Netherlands as regards the obligation to support has not been properly
pleaded and proved in the instant case, it is presumed to be the same with Philippine law, which
enforces the obligation of parents to support their children and penalizing the non-compliance
therewith.
Moreover, while in Pilapil v. Ibay-Somera,

the Court held that a divorce obtained in a foreign land as well as its legal effects may be recognized in
the Philippines in view of the nationality principle on the matter of status of persons, the Divorce
Covenant presented by respondent does not completely show that he is not liable to give support to his
son after the divorce decree was issued. Emphasis is placed on petitioner’s allegation that under the
second page of the aforesaid covenant, respondent’s obligation to support his child is specifically stated,
which was not disputed by respondent.

We likewise agree with petitioner that notwithstanding that the national law of respondent states that
parents have no obligation to support their children or that such obligation is not punishable by law,
said law would still not find applicability, in light of the ruling in Bank of America, NT and SA v. American
Realty Corporation,47 to wit:

In the instant case, assuming arguendo that the English Law on the matter were properly pleaded and
proved in accordance with Section 24, Rule 132 of the Rules of Court and the jurisprudence laid down in
Yao Kee, et al. vs. Sy-Gonzales, said foreign law would still not find applicability.

Thus, when the foreign law, judgment or contract is contrary to a sound and established public policy of
the forum, the said foreign law, judgment or order shall not be applied.

Additionally, prohibitive laws concerning persons, their acts or property, and those which have for their
object public order, public policy and good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a foreign country.

The public policy sought to be protected in the instant case is the principle imbedded in our jurisdiction
proscribing the splitting up of a single cause of action.

Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent

Moreover, foreign law should not be applied when its application would work undeniable injustice to
the citizens or residents of the forum.

To give justice is the most important function of law; hence, a law, or judgment or contract that is
obviously unjust negates the fundamental principles of Conflict of Laws.

Applying the foregoing, even if the laws of the Netherlands neither enforce a parent’s obligation to
support his child nor penalize the noncompliance therewith, such obligation is still duly enforceable in
the Philippines because it would be of great injustice to the child to be denied of financial support when
the latter is entitled thereto.

We emphasize, however, that as to petitioner herself, respondent is no longer liable to support his
former wife, in consonance with the ruling in San Luis v. San Luis, to wit:

As to the effect of the divorce on the Filipino wife, the Court ruled that she should no longer be
considered married to the alien spouse. Further, she should not be required to perform her marital
duties and obligations. It held:

To maintain, as private respondent does, that, under our laws, petitioner has to be considered still
married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the
Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and
fidelity, and render support to private respondent. The latter should not continue to be one of her heirs
with possible rights to conjugal property. She should not be discriminated against in her own country if
the ends of justice are to be served. (Emphasis added)

Based on the foregoing legal precepts, we find that respondent may be made liable under Section 5(e)
and (i) of R.A. No. 9262 for unjustly refusing or failing to give support to petitioner’s son, to wit:

SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against women
and their children is committed through any of the following acts:
xxxx
(e) Attempting to compel or compelling the woman or her child to engage in conduct which the woman
or her child has the right to desist from or desist from conduct which the woman or her child has the
right to engage in, or attempting to restrict or restricting the woman's or her child's freedom of
movement or conduct by force or threat of force, physical or other harm or threat of physical or other
harm, or intimidation directed against the woman or child. This shall include, but not limited to, the
following acts committed with the purpose or effect of controlling or restricting the woman's or her
child's movement or conduct:
xxxx
(2) Depriving or threatening to deprive the woman or her children of financial support legally due her or
her family, or deliberately providing the woman's children insufficient financial support; x x x x
(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child,
including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or
custody of minor childrenof access to the woman's child/children.

Under the aforesaid special law, the deprivation or denial of financial support to the child is considered
an act of violence against women and children.

In addition, considering that respondent is currently living in the Philippines, we find strength in
petitioner’s claim that the Territoriality Principle in criminal law, in relation to Article 14 of the New Civil
Code, applies to the instant case, which provides that: "[p]enal laws and those of public security and
safety shall be obligatory upon all who live and sojourn in Philippine territory, subject to the principle of
public international law and to treaty stipulations."

On this score, it is indisputable that the alleged continuing acts of respondent in refusing to support his
child with petitioner is committed here in the Philippines as all of the parties herein are residents of the
Province of Cebu City.

As such, our courts have territorial jurisdiction over the offense charged against respondent. It is
likewise irrefutable that jurisdiction over the respondent was acquired upon his arrest.

Finally, we do not agree with respondent’s argument that granting, but not admitting, that there is a
legal basis for charging violation of R.A. No. 9262 in the instant case, the criminal liability has been
extinguished on the ground of prescription of crime52 under Section 24 of R.A. No. 9262, which
provides that:
SECTION 24. Prescriptive Period. – Acts falling under Sections 5(a) to 5(f) shall prescribe in twenty (20)
years. Acts falling under Sections 5(g) to 5(I) shall prescribe in ten (10) years.

The act of denying support to a child under Section 5(e)(2) and (i) of R.A. No. 9262 is a continuing
offense,53 which started in 1995 but is still ongoing at present. Accordingly, the crime charged in the
instant case has clearly not prescribed.

Given, however, that the issue on whether respondent has provided support to petitioner’s child calls
for an examination of the probative value of the evidence presented, and the truth and falsehood of
facts being admitted, we hereby remand the determination of this issue to the RTC-Cebu which has
jurisdiction over the case.
WHEREFORE, the petition is GRANTED. The Orders dated February 19, 2010 and September 1, 2010,
respectively, of the Regional Trial Court of the City of Cebu are hereby REVERSED and SET ASIDE. The
case is REMANDED to the same court to conduct further proceedings based on the merits of the case.
SO ORDERED.