TENCHAVEZ vs ESCAÑO

15 SCRA 355, November 29, 1965

Ponente:Reyes, JBL

G.R. No. L-19671

Doctrine: Damages

FACTS:
Not satisfied with the decision of this Court, plaintiff-appellant Pastor B. Tenchavez and defendant-appellee Vicenta F. Escaño, respectively, move for its reconsideration; in addition, Russell Leo Moran, whom said defendant married in the United States, has filed, upon leave previously granted, a memorandum in intervention.

Movant Tenchavez poses the novel theory that Mamerto and Mina Escaño are undeserving of an award for damages because they are guilty of contributory negligence in failing to take up proper and timely measures to dissuade their daughter Vicenta from leaving her husband Tenchavez obtaining a foreign divorce and marrying another man (Moran). This theory cannot be considered: first, because this was not raised in the court below; second, there is no evidence to support it; third, it contradicts plaintiff's previous theory of alienation of affections in that contributory negligence involves an omission to perform an act while alienation of affection involves the performance of a positive act.

The award of moral damages against Vicenta Escaño is assailed on the ground that her refusal to perform her wifely duties, her denial of consortium and desertion of her husband are not included in the enumeration of cases where moral damages may lie.

ISSUE:
Whether or not Tenchavez is allowed to increase the damages against Vicenta (P25,000 for damages and attorney's fees were awarded to Tenchavez in the decision).

HELD:
The argument is untenable. The acts of Vicenta (up to and including her divorce, for grounds not countenanced by our law, which was hers at the time) constitute a wilful infliction of injury upon plaintiff's feelings in a manner "contrary to morals, good customs or public policy" (Civ. Code, Art. 21) for which Article 2219 (10) authorizes an award of moral damages.

It is also argued that, by the award of moral damages, an additional effect of legal separation has been added to Article 106. Appellee obviously mistakes our grant of damages as an effect of legal separation. It was plain in the decision that the damages attached to her wrongful acts under the codal article (Article 2176) expressly cited.

For analogous reasons, the arguments advanced against the award of attorney's fees must be rejected as devoid of merit.

Contrary to intervenor Moran's contention, the decision did not impair appellee's constitutional liberty of abode and freedom of locomotion, as, in fact, Vicenta Escaño did exercise these rights, and even abused them by stating in her application for a passport that she was "single", the better to facilitate her flight from the wrongs she had committed against her husband. The right of a citizen to transfer to a foreign country and seek divorce in a diverse forum is one thing, and the recognition to be accorded to the divorce decree thus obtained is quite another; and the two should not be confused.

There was a Second Motion for Reconsideration, but it was likewise denied. It concerned the jurisdiction over Vicenta's person of the court.