Herald Black Dacasin vs. Sharon del Mundo Dacasin

G.R. No. 168785, February 5, 2010


Petitioner Herald Dacasin (petitioner), American, and Sharon Del Mundo Dacasin (respondent), Filipino, were married and have one daughter, Stephanie.  In 1995, Sharon obtained from the Illinois Court a divorce decree against the petitioner. The Illinois court dissolved the marriage and awarded Sharon sole custody of Stephanie and retained jurisdiction over the case for enforcement purposes.

In 2002, petitioner and respondent executed in Manila a contract (Agreement) for the joint custody of Stephanie. The parties chose Philippine courts as exclusive forum to adjudicate disputes arising from the Agreement. Respondent undertook to obtain from the Illinois court an order “relinquishing” jurisdiction to Philippine courts.

In 2004, petitioner sued respondent in the Regional Trial Court of Makati City, to enforce the Agreement. He submits the following arguments (a) the divorce decree obtained by respondent is void; (b) the Agreement novated the valid divorce decree, modifying the terms of child custody from sole (maternal) to joint; or (c) the Agreement is independent of the divorce decree obtained by respondent.

Respondent sought the dismissal of the complaint for lack of jurisdiction because of the Illinois court’s retention of jurisdiction to enforce the divorce decree.

The trial court sustained the respondent’s motion and dismissed the case for lack of jurisdiction. The trial court held that: 

  1. it is precluded from taking cognizance over the suit considering the Illinois court’s retention of jurisdiction to enforce its divorce decree, including its order awarding sole custody of Stephanie to respondent; 
  2. the divorce decree is binding on petitioner following the “nationality rule” prevailing in this jurisdiction; and 
  3. the Agreement is void for contravening Article 2035, paragraph 5 of the Civil Code prohibiting compromise agreements on jurisdiction.


(1) whether the trial court has jurisdiction to take cognizance of petitioner’s suit and enforce the Agreement on the joint custody of the parties’ child.


The trial court has jurisdiction to entertain petitioner’s suit but not to enforce the Agreement which is void. However, factual and equity considerations militate against the dismissal of petitioner’s suit and call for the remand of the case to settle the question of Stephanie’s custody.

What the Illinois court retained was “jurisdiction x x x for the purpose of enforcing all and sundry the various provisions of [its] Judgment for Dissolution.” Petitioner’s suit seeks the enforcement not of the “various provisions” of the divorce decree but of the post-divorce Agreement on joint child custody.

However, the  trial court cannot enforce the Agreement which is contrary to law. In this jurisdiction, parties to a contract are free to stipulate the terms of agreement subject to the minimum ban on stipulations contrary to law, morals, good customs, public order, or public policy.  Otherwise, the contract is denied legal existence, deemed “inexistent and void from the beginning.”  For lack of relevant stipulation in the Agreement, these and other ancillary Philippine substantive law serve as default parameters to test the validity of the Agreement’s joint child custody stipulations.

Under Article 213 of the Family Code): “no child under seven years of age shall be separated from the mother x x x.” (This statutory awarding of sole parental custody to the mother is mandatory, grounded on sound policy consideration, subject only to a narrow exception not alleged to obtain here. The Agreement’s object to establish a post-divorce joint custody regime between respondent and petitioner over their child under seven years old contravenes Philippine law.

The Agreement would be valid if the spouses have not divorced or separated because the law provides for joint parental authority when spouses live together. Upon separation of the spouses, the mother takes sole custody or under Article 213 of the Family Code, if the child is below seven years old and any agreement to the contrary is void. Thus, the law suspends the joint custody regime for (1) children under seven of (2) separated or divorced.

Additionally, petitioner’s reliance on the invalidity of  divorce decree because it was obtained by his Filipino spouse is not meritorious.  In Van Dorn v. Romillo settled the matter by holding that an alien spouse of a Filipino is bound by a divorce decree obtained abroad.

“ pursuant to his national law, the private respondent is no longer the husband of the petitioner. He would have no standing to sue in the case below as petitioner’s husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own country’s Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property.”

Instead of ordering the dismissal of petitioner’s suit, the logical end to its lack of cause of action, we remand the case for the trial court to settle the question of Stephanie’s custody.

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