NAVARRO VS. DOMAGTOY

NAVARRO VS. DOMAGTOY

A.M. No. MTJ-96-1088, July 19, 1996

Complainant: Rodolfo G. Navarro

Respondent: Judge Hernando C. Domagtoy, MCTC

Ponente: J. Romero

 

Facts:

The complainant submitted evidence in relation to two specific acts committed by the respondent with the following facts:

(a) On September 27, 1994, respondent solemnized wedding between Gaspar A. Tagadan and Arlyn F. Borga, despite the knowledge that the groom is merely separated from his first wife;

(b) On October 27, 1994, the respondent allegedly performed a marriage ceremony between Floriano Dador Sumaylo and Gemma G. Del Rosario outside of the respondent’s court’s jurisdiction.  Such wedding was solemnized at the respondent’s residence in municipality of Dapa, which does not fall within the respondent’s jurisdictional area of Sta. Monica Burgos.

Respondent, in his letter-comment to the Office of the Court Administrator (OCA):

(a) Seeks exculpation from his act of having solemnized the marriage between Tagadan and Borga by stating that he merely relied on the Affidavit issued by the MTC Judge of Basey, Samar, confirming that Tagadan and his first wife have not seen each other for almost seven (7) years.

(b) Maintains that in solemnizing the marriage between Sumaylo and Del Rosario, he did not violate Article 7, paragraph one (1) of the Family Code, which states that “Marriage may be solemnized by: (1) Any incumbent member of the judiciary within the court’s jurisdiction.”; and that Article 8 thereof applies to the case in question.

The complaint was not referred, as is usual, for investigation, since the pleadings submitted were considered sufficient for a resolution of the case.  In the foregoing the other facts are present in relation to the first marriage solemnized by the respondent as stated herein:

(a) The affidavit was not issued by the judge of Basey, Samar.  It was, however, merely acknowledged before him;

(b) The affiants stated in their affidavit that they knew Tagadan who was left by his wife, Ida Penaranda and she has not returned nor been heard for almost seven years, thereby giving rise to the presumption that she is already dead.

Issues:

The issues are:

(1) Whether or not the aforementioned joint affidavit is sufficient proof of Ida Penaranda’s presumptive death and ample reason for the respondent to proceed with the marriage ceremony of Tagadan and Borga;

(2) Whether or not the solemnization of the marriage of Sumaylo and Del Rosario was within the respondent’s court’s jurisdiction.

Held:

(1) No.  The joint affidavit is not a sufficient proof of Penaranda’s presumptive death.  Article 41 of the Family Code expressly provides as quoted, “…the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death or the absentee…”  Even if the spouse present has a well-founded belief that the absent spouse was already dead, a summary proceeding for the declaration of presumptive death is necessary in order to contract a subsequent marriage.

(2) No.  The solemnization of the marriage of Sumaylo and Del Rosario was not within the respondent’s court’s jurisdiction.  He was not clothed to solemnize a marriage in the municipality of Dapa, Surigao del Norte.  As such, there are only three instances, which the law provides, wherein a judge may solemnize a marriage as stated in Article 8 of the Family Code:

(2.1) when either or both the contracting parties is at the point of death;

(2.2) when the residence of either party is located in a remote place;

(2.3) where both of the parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect.

There is no pretense that either Sumaylo or del Rosario was at the point of death or in a remote place.  Moreover, the written request presented addressed to the respondent judge was made by only one party, Gemma del Rosario.

The marriage between Gaspar Tagadan and Arlyn Borga is considered bigamous and void, there being a subsisting marriage between Gaspar Tagadan and Ida Peñaranda.

(Re: Sumaylo and Del Rosario - Under the Family Code, even if the solemnizing officer is not authorized, the marriage would be valid if either or both parties believe in good faith in his authority to solemnize the marriage.)

Respondent was ordered a suspension for a period of six (6) months.