553 Phil. 498
CHICO-NAZARIO, J.:
Acting on the joint motion to render judgment based on Compromise Agreement and finding the allegations therein to be of merit, same is hereby given due course.On 5 April 2005, respondent filed an "Urgent Motion for Issuance of Writ of Execution." It was alleged in said motion that petitioner had repeatedly refused to abide by the terms of the compromise judgment, particularly the provision allowing Louis Maxwell to spend a night with him at any day of the week. Respondent likewise stated in his motion that he had already filed a Petition to cite petitioner in contempt which was raffled off to the Regional Trial Court, Branch 59 of Makati City.[8]
Judgment is therefore rendered based on the compromise agreement which is quoted hereunder."COMPROMISE AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
This Agreement entered this 22nd day of April 2004 by and between:
DAVID GILINSKY, of legal age, single and residing at Suite 2828, Makati Shang-rila Hotel, Ayala Avenue corner Makati Avenue, Makati City, hereinafter referred to as the "FATHER"-and-
SHEILA T. VIESCA, of legal age, single and a resident of Lot 2, Block 39, Phase 5, Fort Bonifacio, Taguig, Metro Manila, hereinafter referred to as the "MOTHER".WITNESSETH:
WHEREAS, the parties are the biological parents of minor LOUIS MAXWELL (the "CHILD") born on 22 October 2001;
WHEREAS, as a result of disputes and differences, the parties are now living separately and apart;
WHEREAS, the parties desire to provide for a complete settlement of the issues pertaining to the custody, visitorial rights, support and maintenance of the child;
WHEREAS, each party acknowledges his or her personal obligations as parent of the child and, by these presents, each hereby undertakes to render the performance of these obligations to the child and comply with his or her duties as a parent;
NOW, THEREFORE, for and in consideration of the promises and dispositions made in this agreement, the parties hereto have agreed as follows:I. CUSTODY OF THE CHILD
The mother shall continue to have custody over LOUIS MAXWELL while the father shall exercise visitorial rights as hereunder stated.
Both parties, by these presents, undertake to take every measure necessary, desirable and proper, to consider the best interest of the child at all times, whether with them or away from them. Any act, word or manipulative scheme that may cause the alienation of feelings or loss of respect or that either one or both of them, from either one of the parties, shall never be tolerated.II. VISITATION RIGHTS
As the child will continue to be in the custody of the mother, the father, as the non-custodial parent shall be entitled to the following supervised visitation rights, to wit:One year after the signing of this agreement, the parties shall meet to discuss and resolve the matter pertaining to the entitlement of the father to enjoy a yearly, three-week vacation in any destination with the child.
- He shall be entitled to the company of the child every Saturday and/or Sunday afternoon;
- The child shall be allowed to spend the night with the father once a week;
- Nothing herein shall prevent the father from visiting the child during reasonable hour in the afternoon of any day of the week at the mother's residence in the presence of the mother or her duly designated representative, and with prior notice to the mother.
In the exercise and/or enjoyment of the above rights, the mother shall have the right to designate any person of suitable age to accompany the child.III. SUPPORTThe mother shall ensure that all arrears and/or outstanding obligations prior to the execution of this agreement shall have been settled and paid. As soon as the above have been fully complied with, the father shall pay the ensuing monthly amortization.
- The father shall give monthly financial support of US Dollars Five Hundred (US$500.00) or its Peso equivalent within the first five days of the month effective upon the signing of this agreement. The amount shall be subject to such yearly adjustment of such rate equal to the inflation rate determined by the appropriate government agency.
- On top of the said monthly financial support, the Father shall provide:
- full medical and dental expenses and/or insurance coverage for the child;
- full education for the child at Colegio San Agustin, Makati or any other suitable school;
- college Education Insurance for the child;
- monthly car amortization of Ten Thousand Pesos (P10,000.00) or One Fourth (1/4) of the current amortization whichever is lower;
- Monthly amortization due as of the date of this Agreement for the Rockwell-Manansala Condominium unit until its full payment and transfer of title, including its association dues and charges. The mother here affirms/confirms she is holding title to the condominium in trust for the child.
IV. COURT APPROVAL OF AGREEMENT
This agreement shall be governed by and construed in accordance with the laws of the Republic of the Philippines. The parties hereto shall, in good faith, strictly abide by the terms hereof.
The parties agree to submit this written agreement for the court's approval.V. JUDICIAL RELIEF
Should either one of the parties fail to comply with the terms and conditions of this Agreement, the aggrieved party may seek judicial relief against the erring party and apply with the proper court for a writ of execution against said erring party to enforce his or her obligations imposed in this Agreement. The offending party shall pay for the cost of litigation, attorney's fees, other expenses, and interest incurred in such application for a writ of execution.
IN WITNESS WHEREOF, we have hereunto affixed our respective signatures on the date and place hereinabove mentioned.
(SGD) DAVID GILINSKY (SGD) SHEILA T. VIESCA[7]
Father Mother
The Court heard the arguments raised by the counsel for the [herein petitioner] and the reply/comment thereto made by the counsel for the [herein respondent]. The [herein petitioner] thru counsel imposed certain conditions if ever the visitorial rights of the [herein respondent] would be granted. Though [herein petitioners] wished that those conditions be contained in an affidavit, which to the mind of the court would only delay the resolution of the motion, the court thereupon ordered that the statement of the petitioner be made orally but under oath, thus, [herein respondent] was placed in the witness stand.In addition, petitioner alleges that in the course of argument between the parties during this hearing, Judge Rebecca Mariano was not able to contain her bias against petitioner when she reproved the latter's "stubborn refusal"[16] to comply with the Compromise Judgment. Believing that Judge Mariano had shown her partiality in favor of respondent, petitioner's counsel moved in open court for her inhibition.[17] To this, Judge Mariano remarked:
Thereafter, the court ruled to deny the motion to quash the writ of execution filed by [herein petitioner] thru counsel for lack of merit and grant the prayer of the [herein respondent] that he be allowed to exercise his visitorial rights over the minor LUIS MAXWELL VIESCA today under the conditions imposed by the [herein petitioner], some of which are contained in the compromise agreement to which [herein respondent] promised under oath to obey the same (sic).
WHEREFORE, let the [herein respondent] DAVID GILINSKY exercise his visitorial rights over the minor LUIS MAXWELL VIESCA on the following conditions, to wit:[Herein Petitioner] is commanded to bring the minor child LUIS MAXWELL VIESCA to court not later than 3:00 o'clock this afternoon, to be pick-up (sic) by the [herein private respondent], upon the service of his order to the [herein petitioner] by the sheriff of this court.
- [Herein respondent] shall surrender to the court his passport everytime he is with his child; and
- [Herein respondent] shall not secure/apply another passport (sic) for his son LUIS MAXWELL; and
- [Herein petitioner] shall exercise her right to designate any person of suitable age to accompany the child whenever [herein respondent] would exercise his visitorial right.
Failure of the [herein petitioner] to comply with this order shall be a ground for contempt of this court AND SHALL BE DEALTH WITH SEVERELY.[15]
COURTSubsequently, respondent filed a Manifestation with Motion to Withdraw Motion for Temporary Relief of Support dated 25 April 2005[19] to which petitioner filed her Comment[20] as ordered by the trial court. In their pleadings, the parties presented disparate accounts of what transpired after the hearing on 15 April 2005.
ALRIGHT, before I inhibit myself, the MOTION TO QUASH is DENIED and my position granting visitorial rights of the child is GRANTED. [18]
On the other hand, petitioner countered -
- At 3:00 o'clock p.m. of said afternoon, [herein respondent], together with undersigned counsel, promptly went to the court to await the arrival of his son, Louis Maxwell.
- At or about 4:00 o'clock, This Court's sheriff informed undersigned counsel that he had just served a copy of the order upon the adverse counsel.
- Undersigned counsel immediately conferred with Atty. E. Perez, [herein petitioner's] counsel, to arrange the implementation of the above-quoted Order. Atty. Perez informed undersigned of his client's inability to comply with the 3:00 o'clock mandate given that the Order was served to her only at 3:25 p.m., to which the undersigned counsel responded by saying that [herein petitioner] could still have Louis Maxwell brought to court even after the designated time.
- Despite the clear and unequivocal tenor of This Court's Order, Atty. Perez informed the undersigned counsel that since [herein petitioner] was still at work, his client could only bring the child at the lobby of Shangri-la hotel, Makati, at around 8:00 o'clock p.m. of that day.
Undersigned counsel immediately rejected the proposed arrangement for the same does not only run counter to the express mandate of This Court's Order but more importantly would deprive [respondent] of spending quality time with his son - the raisaon d'etre of the stipulation in the Compromise Agreement providing an overnight stay. Undersigned counsel, moreover, explained that 8:00 o'clock p.m. is unreasonable and oppressive, not for [herein respondent] but more for the child, as the proposed time is the expected bedtime of three-year olds.
The adverse counsel, however, remained insistent that the child could only be brought by the [herein petitioner] at 8:00 o'clock p.m. and intimated that since the court order came as a "surprise" and was served at past 3:00 p.m., [herein respondent] should not expect [herein petitioner] to alter her schedule at such short notice.
The undersigned counsel finally relented to the 8:00 o'clock arrangement as it was clear that the adverse counsel and [herein petitioner] was (sic) unaffected by [herein respondent's] earnest desire to spend quality time with his son.- Albeit the representation [herein petitioner's] counsel that his client committed to bring the child at 8:00 o'clock at Shangri-la, Makati, [herein petitioner] arrived at past 9:00 o'clock p.m. [Herein petitioner] not only brought the child but likewise brought with her the child's grandmother (herein petitioner's mother) and several of her friends. And instead of allowing only one person to act as guardian over Louis Maxwell, [herein petitioner] insisted on having both herself and her mother accompany Louis during his overnight stay with [herein respondent]. [Herein respondent] had no choice but to accede to such demand lest he be deprived once more of the enjoyment of his right.
x x x x
- Furthermore, [herein petitioner] arrived at past 9 o'clock p.m. despite her undertaking that she will bring the child to [herein respondent] at 8 o'clock p.m.; [herein petitioner] also imposed on two guardians: herself and her mother, instead of only one guardian, as provided in the Compromise Judgment; The child was not allowed by [herein petitioner] to sleep in [herein respondent's] room and was made to sleep in her separate room with her mother; finally, on the argument that overnight stay simply means sleeping over, [herein petitioner] left with Louis and her mother at 6 o'clock in the morning of 16 April 2005.[21]
"4. It is clear therefore that there was nothing in the oral argument nor in the Order given in open court that the child was supposed to be brought to Court at 3:00 p.m. that same day to accommodate [herein respondent's] request for visitorial rights. Neither is there mention of the specific time in the Compromise Judgment. It appears that it was [herein respondent] who had prior notice or advanced information as to the contents of the Order from his Manifestation that "On 26 April 2005, petitioner filed an "Ex-Parte Reiterative Motion to Inhibit" claiming that Judge Mariano could no longer handle the case "with the cold neutrality of an impartial judge"[23] because of her statement pertaining to petitioner's failure to abide by the Compromise Judgment. Respondent filed his opposition thereto, arguing that Judge Mariano's remark was merely based on her observation of petitioner's behavior and attitude during the proceedings of this case.[24]"3. At 3:00 o'clock p.m. of said afternoon, [herein respondent], together with undersigned counsel, promptly went to the court to await the arrival of his son, Louis Maxwell.""5. Undersigned counsel received a copy of the Order dated 15 April 2005 only at 4:15 p.m. of that same day, hence, it was impossible for [herein petitioner] to comply with Order commanding her to bring the child "to court not later than 3:00 o'clock this afternoon." Be that as it may, counsel immediately got in touch with [herein petitioner] to advise her to comply with the Order but [herein petitioner] stated she could not leave her office immediately because of prior commitment and instead suggested that she would bring the child to [herein respondent] Shangrila Hotel resident in the evening. Hereon counsel relayed the information/suggestion to [herein respondent's] counsel and after a series of calls, an arrangement was made for the evening. What actually happened that evening, the parties had different accounts.
- [Herein petitioner] maintains that —
- She arrived late at little past 9:00 o'clock because of heavy traffic. It was a Friday, pay day and last day for income tax payment.
- [Herein respondent] conveniently failed to mention that when [herein petitioner] arrived with the child Louis Maxwell at the hotel lobby, they were met by [herein respondent] together with three (3) Manulife insurance agents and a physician. [Herein respondent] and the insurance men tried almost to coercion to convince [herein petitioner] to agree that the child be subjected to medical examination that night so that [herein respondent] could secure a multimillion insurance policy for the child with David Gilinsky as the sole beneficiary. [Herein petitioner] naturally did not agree. [Herein petitioner] does not want to speculate but the circumstances, time and manner of taking the policy appears to be dubious. The fact remains that whatever desire of [herein respondent] to spend quality time with the child was clouded when he allowed these insurance men to get in the way when they should not be there in the first place.[22]
In her Comment,[27] petitioner asserted that Judge Mariano should no longer rule on respondent's motion, since there was a pending motion for her to inhibit. She likewise took the opportunity to refute respondent's allegations with regard to her purported failure to observe the terms of the Compromise Judgment. Petitioner claimed that on 14 May 2005, Louis Maxwell fell sick and so she was unable to bring him to private respondent. In fact, petitioner's counsel even sent a letter dated 16 May 2005 to respondent's lawyer explaining her "version of the story."[28] She also posed objection to respondent's plea that Louis Maxwell be brought either to the trial court or to him since the child was still sick, and taking him out of the house would only worsen his condition. Moreover, petitioner argued that to grant respondent's prayer would contravene the provisions of the Compromise Judgment under which his entitlement to the company of his son every weekend is a separate and distinct term from his right to spend a night with the child. She also claimed that as agreed upon, respondent should be the one to pick up the child and to return him to her. Finally, petitioner assailed respondent's prayer for attorney's fees for lack of basis.
- To command [herein petitioner] to bring the child to either This Court or to the [herein respondent's] residence not later than 3:00 p.m. of 20 May 2005 and for the child to be allowed to leave the company of the [herein respondent] at 4:00 p.m. of 21 May 2005; and
- To direct the [herein petitioner] pay (sic) the amount of P295,000.00, as and by way of attorney's fees.
Other relief just and equitable under the circumstances are likewise prayed for.[26]
a) To allow (him) to have the company of his son on Wednesday, June 1, 2005, beginning 6:00 p.m. up to 9:00 a.m. of the following day. For this purpose, for this Court to further allow (him) to fetch his son at [herein petitioner's] residence and bring him back at [herein petitioner's] abode not later than 9:00 a.m. of the following day.Respondent requested that his Very Urgent Motion to Enforce and Enjoy Visitorial Rights be heard on 1 June 2005 notwithstanding the three-day notice rule required under the Revised Rules of Civil Procedure, as he was about to go on a two-week business trip on 3 June 2005.
b) To designate the hours of 6:00 p.m. of any given Friday to 9:00 a.m. of the following day, as the regular day and hours at which the [herein respondent] can enjoy the company of his son pursuant to Clause II of the Compromise Judgment dated May 12, 2004.
c) To designate the Court Sheriff and/or any other court officer to act as the accompanying guardian of Louis Maxwell Viesca Gilinsky during the implementation of the prayed for relief under paragraph (a) hereof and of the sleep-over provision mentioned in Clause II of the Compromise Judgment.
d) To command [herein petitioner] to pay the amount of Thirty Thousand Pesos (P30,000.00), as and by way of cost of litigation, attorney's fees and other expenses pursuant to Clause V of the Compromise Judgment.
Just and equitable reliefs prayed for under the circumstances.[33]
Set for today's hearing is the Very Urgent Motion to Enforce and Enjoy Visitorial Rights filed by the [herein respondent] and the Comment thereto filed by the [herein petitioner]. The Court heard the arguments between the parties accusing each other of violation of the compromise agreement.On 16 June 2005, Judge Mariano proceeded to resolve respondent's very urgent motion in the following manner:
The [herein respondent] wanted to present testimonial evidence to prove his allegation in the motion but which was denied by the Court for lack of material time.
The Court likewise reminded the parties the fact that the [herein respondent] surrenders his passport everytime he exercises his visitorial right was voluntary on his part and not as part of the compromise agreement.
WHEREFORE, the court ruled that the [herein respondent] can exercise his visitorial right today at 6:00 o'clock in the evening to be accompanied by the sheriff of this court. If the [herein petitioner] is not available nor the grandmother to accompany the minor child, the court instructed the [herein petitioner] to appoint another person who can accompany the child so as not to avoid any delay in fetching the minor child. Likewise the motion was reset to July 1, 2005, at 10:30 o'clock in the morning.
Considering that the very urgent motion filed by the [herein respondent] was commented or objected to by the [herein petitioner's] counsel, let the [herein respondent], thru counsel file a reply within five (5) days from receipt of this Order and the [herein petitioner] is given the same period of time from receipt of the reply within which to file a rejoinder, if she so desires.
SO ORDERED.
Given in open court, this 1st day of June 2005, at Makati City.REBECCA R. MARIANO
Judge[35]
Before the Court is the Very Urgent Motion to Enforce and Enjoy Visitorial Rights filed by the [herein respondent] thru counsel, alleging among others, that [herein petitioner] had once again proven herself to be unfaithful to her promises and representations, citing the incident which happened on 27 May 2005, the scheduled meeting of the [herein respondent] and his son. On the said date, [herein petitioner's] grandmother (sic) became sick, however, the latter refused the offer of the petitioner to get medical help. Said alleged illness became more doubtful when the grandmother insisted on being well enough to push through with the visitation but at 9:00 o'clock in the evening instead of 6:00 o'clock in the evening, as previously agreed upon by the parties.During the hearing on 1 July 2005, it was clarified that the Deputy Sheriff would act as accompanying guardian of Louis Maxwell only in case of the unavailability of petitioner or her failure to designate the child's overnight companion.[37]
On the Comment filed by the [herein petitioner], she stated that the present motion should be denied because it violates the three-day notice rule and there is no good cause to set the hearing on shorter notice.
We shall now rule on the motion.
Under Section 4, Rule 15 of the Revised Rules of Court and following the pronouncements by the High Court in the cases of Cledera, et al. vs. Sarmiento, et al 39 SCRA 552; Estipora vs. Navarro, 69 SCRA 285, the motion under consideration should have been dismissed ourtright, however, the above-cited provision or the so-called three-day notice rule is not absolute. Like any other rule, it admits of exception, i.e. urgent motions (Remedial Law Compendium, Vol. 1, Regalado). Moreover, in the interest of substantial justice, this Court finds it imperative and necessary to brush-aside any technicality since the issue involved herein is basically the natural right of a father to enjoy the company and presence of his beloved son. To the mind of the Court, the best and most applicable law in cases of this nature is the conscience of untroubled and unprejudiced majesty. Finally, the right of custody accorded to parents' springs from the exercise of parental authority (Santos Sr. vs. Court of Appeals, 242 SCRA 407). Hence, the motion under consideration is hereby given due course.
Accordingly, [herein petitioner] is ordered to perform the following, to wit:As regards the prayer under paragraph (a) of the motion, the same is denied for being moot and academic.
- Allow [herein respondent] to enjoy the company of Louis Maxwell on 24 June 2005 and on every Friday of each week starting from 6:00 pm to 9:00 am of the following day, pursuant to Clause II of the compromise Judgment dated 12 May 2004;
- The Deputy Sheriff of this court is hereby designated to act as the accompanying guardian of Louis Maxwell Viesca Gilinsky during the implementation of the prayed for relief under paragraph 1 hereof;
- Pay the [herein respondent] the amount of Thirty-Thousand Pesos (Php 30,000.00), as and by way of cost of litigation, attorney's fees and other expenses pursuant to Clause V of the Compromise Agreement.
SO ORDERED.
Given in Chambers this 16th June 2005, Makati City.REBECCA R. MARIANOJudge[36]
WHEREFORE, the petition is PARTIALLY GRANTED in that the Order dated June 16, 2005 is MODIFIED. The award of Thirty Thousand Pesos (Php30,000.00), as and by way of litigation cost, attorney's fees and other expenses pursuant to clause V of the Compromise Judgment in favor of private respondent is DELETED.[41]Petitioner's Motion for Reconsideration was denied in the Resolution promulgated on 24 February 2006.[42]
WITH ALL DUE RESPECT, THE COURT OF APPEALS ERRED IN DECIDING A QUESTION OF LAW, NOT THERETOFORE DETERMINED BY THIS HONORABLE COURT, AND/OR DECIDING IT IN A WAY NOT IN ACCORD WITH LAW OR WITH APPLICABLE DECISIONS OF THIS HONORABLE COURT CONSIDERING THAT-The petition is partly meritorious.
- THE TRIAL COURT AMENDED OR ALTERED THE TERMS OF THE COMPROMISE JUDGMENT WITHOUT THE CONCURRENCE OF BOTH PARTIES THERETO.
- RESPONDENT JUDGE ISSUED THE ASSAILED ORDER AMENDING THE COMPROMISE JUDGMENT IN HASTE AND WITHOUT EVIDENTIARY SUPPORT AS IT WAS ISSUED WITHOUT WAITING FOR THE SCHEDULED HEARING OF THE MOTION FILED BY PRIVATE RESPONDENT AND DESPITE THE PENDING MOTION TO INHIBIT.[43]
This is not the first unfortunate instance that a compromise judgment of a trial court has given rise to subsequent prolonged controversy, only because the trial judge failed to exercise the required degree of care in seeing to it that neither ambiguity nor incompleteness of details should characterize the agreement, much less the judgment rendered on the basis thereof. The expressed desire of the parties to end their judicial travails by submitting to a compromise deserves the utmost attention from the court, and no effort should be spared in helping them arrive at a definite and unequivocal termination of their problems and differences. It is high time that the matter-of-fact treatment usually accorded by trial courts to motions to approve compromises were abandoned in favor of the more positive activist attitude the situation demands. In acting in such a situation, the judge should bear in mind that the objective is to end the disagreement between the parties, not to begin a new one. Thus, if the parties and their counsel are unable to do it, the judge is expected to assist them in attaining precision and accuracy of language that would more or less make it certain that any disputes as to the matters being settled would not recur, much less give rise to a new controversy. (Emphasis supplied.)Resultantly, a remand of this case is necessary to allow the parties themselves to resolve the matter regarding the implementation of Clause II(b) of the Compromise Judgment. In this regard, the rule on immutability for purposes of execution does not attach to a judgment that is materially equivocal or which suffers from either patent or latent ambiguity.[55] To obviate further discord between them and to preclude their recourse to the trial court every time one of them perceives a violation committed by the other of Clause II(b) of the Compromise Judgment, we direct the trial court to be on guard and ensure that the parties would lay out in concrete, specific details the terms of their agreement as to this specific matter as well of the appointment of Louis Maxwell's accompanying guardian.
SECTION 1. Disqualification of judges. — No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of the civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record.This Court has ruled that to disqualify or not to disqualify is a matter of conscience and is addressed primarily to the sense of fairness and justice of the judge concerned.[56] Said discretion is granted to judges, since they are in the better position to determine the issue of voluntary inhibition, as they are the ones who directly deal with the parties in their courtrooms.[57] The test that must be applied in questions involving the propriety of the denial of a motion to inhibit is whether the movant was deprived of a fair and impartial trial.[58] In this case, we hold that petitioner was not deprived of her day in court, for she was able to file her comments on and/or objections to the motions filed by private respondent. She, therefore, was able to ventilate her positions on the issues brought before the trial court.
A judge may, in the exercise of his sound discretion disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above. (Emphasis supplied).