Fore public of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 193707 December 10, 2014
NORMA A. DEL SOCORRO, for and in behalf of her minor child RODERIGO
NORJO VAN WILSEM, Petitioner,
vs.
ERNST JOHAN BRINKMAN VAN WILSEM, Respondent.
DECISION
PERALTA, J.:
Before the Court is a petition for REVIEW ON CERTIORARI under Rule 45 of the Rules
of Court seeking to reverse and set aside the Orders1 dated February 19, 2010 and
September 1, 2010, respectively, of the Regional Trial Court of Cebu City (RTC-Cebu),
which dismissed the criminal case entitled People of the Philippines v. Ernst Johan
Brinkman Van Wilsem, docketed as Criminal Case No. CBU-85503, for violation of Republic
Act (R.A.) No. 9262, otherwise known as the ANTI-VIOLENCE AGAINST WOMEN AND
THEIR CHILDREN ACT OF 2004.
The following facts are culled from the records:
Petitioner NORMA A. DEL SOCORRO and respondent Ernst Johan Brinkman Van Wilsem
contracted marriage in Holland on September 25, 1990.2 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.3
Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a Divorce
Decree issued by the appropriate Court of Holland.4 At that time, their son was only
eighteen (18) months old.5 Thereafter, petitioner and her son came home to the
Philippines.6
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).7 However, since the arrival of petitioner and her son
in the Philippines, respondent never gave support to the son, Roderigo.8
Not long thereafter, respondent came to the Philippines and remarried in
Pinamungahan, Cebu, and since then, have been residing thereat.9 Respondent and his
new wife established a business known as Paree Catering, located at Barangay Tajao,
Municipality of Pinamungahan, Cebu City.10 To date, all the parties, including their son,
Roderigo, are presently living in Cebu City.11
On August 28, 2009, petitioner, through her counsel, sent a letter demanding for
support from respondent. However, respondent refused to receive the letter.12
Because of the foregoing circumstances, petitioner filed a complaint affidavit with the
Provincial Prosecutor of Cebu City against respondent for violation of Section 5, paragraph
E(2) of R.A. No. 9262 (Section 5(e)(2) of R.A. 9262 identifies the act of “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”) for the latter’s
unjust refusal to support his minor child with petitioner.13 Respondent submitted his
counter-affidavit thereto, to which petitioner also submitted her reply-
affidavit. Thereafter, the Provincial Prosecutor of Cebu City issued a Resolution
14
recommending the filing of an information for the crime charged against herein
respondent.
The information, which was filed with the RTC-Cebu and raffled to Branch 20 thereof,
states that:
That sometime in the year 1995 and up to the present, more or less, in the Municipality
of Minglanilla, Province of Cebu, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, did then and there wilfully, unlawfully and deliberately
deprive, refuse and still continue to deprive his son RODERIGO NORJO VAN WILSEM, a
fourteen (14) year old minor, of financial support legally due him, resulting in economic
abuse to the victim. CONTRARY TO LAW.15
Upon motion and after notice and hearing, the RTC-Cebu issued a Hold Departure
Order against respondent.16 Consequently, respondent was arrested and,
subsequently, posted bail.17 Petitioner also filed a Motion/Application of Permanent
Protection Order to which respondent filed his Opposition.18 Pending the resolution
thereof, respondent was arraigned.19 Subsequently, without the RTC-Cebu having
resolved the application of the protection order, respondent filed a Motion to Dismiss
on the ground of: (1) lack of jurisdiction over the offense charged; and (2)
prescription of the crime charged.20
On February 19, 2010, the RTC-Cebu issued the herein assailed
Order,21 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.
The bail bond posted by accused Ernst Johan Brinkman Van Wilsem for his provisional
liberty is hereby cancelled (sic) and ordered released.
SO ORDERED.
Cebu City, Philippines, February 19, 2010.22
Thereafter, petitioner filed her Motion for Reconsideration thereto reiterating
respondent’s obligation to support their child under Article 19523 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."24
On September 1, 2010, the lower court issued an Order 25 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 give support 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 tohis 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 faciecase exists against the accused herein, hence, the
case should be dismissed.
WHEREFORE, the motion for reconsideration is hereby DENIED for lack of merit.
SO ORDERED.
Cebu City, Philippines, September 1, 2010.26
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.27
At the outset, let it be emphasized that We are taking cognizance (awareness) of the
instant petition despite the fact that the same was directly lodged with the Supreme Court,
consistent with the ruling in Republic v. Sunvar Realty Development Corporation,28 which
lays down the instances when a ruling of the trial court may be brought on appeal directly
to the Supreme Court without violating the doctrine of hierarchy of courts, to wit:
x x x Nevertheless, the Rules do not prohibit any of the parties from filing a Rule 45
Petition with this Court, in case only questions of law are raised or involved. This latter
situation was one that petitioners found themselves in when they filed the
instant Petition to raise only questions of law. In Republic v. Malabanan, the Court
clarified the three modes of appeal from decisions of the RTC, to wit:
(1) by ordinary appeal or appeal by writ of error under Rule 41, whereby judgment was
rendered in a civil or criminal action by the RTC in the exercise of its original jurisdiction;
(2) by a petition for review under Rule 42, whereby judgment was rendered by the RTC
in the exercise of its appellate jurisdiction; and
(3) by a petition for review on certiorari before the Supreme Court under Rule 45. "The
first mode of appeal is taken to the [Court of Appeals] on questions of fact or mixed
questions of fact and law.
The second mode of appeal is brought to the CA on questions of fact, of law, or
mixed questions of fact and law.
The third mode of appeal is elevated to the Supreme Court only on questions of
law." (Emphasis supplied)
There is a question of law when the issue does not call for an examination of the probative
value of the evidence presented or of the truth or falsehood of the facts being admitted,
and the doubt concerns the correct application of law and jurisprudence on the matter.
The resolution of the issue must rest solely on what the law provides on the given set of
circumstances.29
Example: Question of Law vs. Question of Fact
In New Rural Bank of Guimba (N.E.) Inc. v. Abad & Susan, the Supreme
Court recognized that:
“A question of law exists when the doubt or controversy concerns
the correct application of law or jurisprudence to a certain set of facts; or
when the issue does not call for an examination of the probative value
of the evidence presented… Undoubtedly, this is a pure question of law,
which calls for a resolution of what is the correct and applicable law to a
given set of facts.”
en.wikipedia.org+15lawphil.net+15en.wikipedia.org+15
In that case, the dispute hinged not on who said what or how
reliable the testimony was, but whether, based on the established facts, the
land in question qualified as “alienable and disposable” under the law. The
Court emphasized:
“Petitioner … does not call for an examination of the probative
value or truthfulness of the evidence… It, however, questions whether the
evidence on record is sufficient to support the lower court’s conclusion …
Undoubtedly, this is a pure question of law…” lawphil.net
Indeed, the issues submitted to us for resolution INVOLVE QUESTIONS OF LAW
– the response thereto concerns the correct application of law and jurisprudence on a
given set of facts, i.e.,
WHETHER OR NOT A FOREIGN NATIONAL HAS AN OBLIGATION TO
SUPPORT HIS MINOR CHILD UNDER PHILIPPINE LAW; AND WHETHER OR NOT
HE CAN BE HELD CRIMINALLY LIABLE UNDER R.A. NO. 9262 FOR HIS
UNJUSTIFIED FAILURE TO DO SO.
It cannot be negated (cancelled), moreover, that the instant petition highlights a novel
question of law concerning the liability of a foreign national who allegedly commits acts
and omissions punishable under special criminal laws, specifically in relation to family
rights and duties.
The inimitability (exclusivity) of the factual milieu (in law refers to the specific set of facts
and circumstances surrounding a legal case or situation.) of the present case, therefore,
deserves a definitive ruling by this Court, which will eventually serve as a guidepost for
future cases. Furthermore, dismissing the instant petition and remanding the same to the
CA would only waste the time, effort and resources of the courts.
Thus, in the present case, considerations of efficiency and economy in the
administration of justice should prevail over the observance of the hierarchy of
courts.
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 30 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,31 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.32 Respondent also added that by reason of the Divorce Decree,
he is not obligated to petitioner for any financial support.33
On this point, we agree with respondent that petitioner cannot rely on Article
195 34 of the New Civil Code in demanding support from respondent, who is a
foreign citizen, since Article 1535 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.36
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.37
In the case of Vivo v. Cloribel,38 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).39
It cannot be gainsaid (opposed), 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.40 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.41 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,42 has already enunciated that:
True, foreign laws do not prove themselves in our jurisdiction and our courts are
not authorized to take judicial notice (refers to the ability of a court to recognize and
apply legal principles or facts without requiring formal evidence to support them. ) of them.
Like any other fact, they must be alleged and proved.43
In view of respondent’s failure to prove the national law of the Netherlands in his favor,
the doctrine of processual presumption (Whether a foreign national has an obligation to support his minor
child under Philippine law.) 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.44 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,45 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,46 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 “for the sake of argument” 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.
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 (banning) the splitting up of a single cause of action.
Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent
If two or more suits are instituted on the basis of the same cause of action, the filing of
one or a judgment upon the merits in any one is available as a ground for the dismissal
of the others. 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.48
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,49 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)50
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 topetitioner’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.51
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: "penal 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 (undeniable) 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.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
