Persons Case Digest: Bellis vs Bellis


Bellis vs Bellis
G.R. No. L-23678            June 6, 1967

Lessons Applicable: Divorce, Doctrine of Processual Presumption

Laws Applicable: Art. 16, 17 1039 NCC


Violet Kennedy (2nd wife) ß Amos G. Bellis --- Mary E. Mallen (1st wife)
Legitimate Children:                                      Legitimate Children:
Edward A. Bellis                                            Amos Bellis, Jr.                              
George Bellis (pre-deceased)                         Maria Cristina Bellis       
Henry A. Bellis                                              Miriam Palma Bellis
Alexander Bellis
Anna Bellis Allsman

FACTS:
  • Amos G. Bellis, a citizen of the State of Texas and of the United States.
  • By his first wife, Mary E. Mallen, whom he divorced, he had 5 legitimate children: Edward A. Bellis, George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman
  • By his second wife, Violet Kennedy, who survived him, he had 3 legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis
  • August 5, 1952: Amos G. Bellis executed a will in the Philippines dividing his estate as follows:
1.    $240,000.00 to his first wife, Mary E. Mallen
2.    P40,000.00 each to his 3 illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma Bellis
3.    remainder shall go to his seven surviving children by his first and second wives
  • July 8, 1958: Amos G. Bellis died a resident of Texas, U.S.A
  • September 15, 1958: his will was admitted to probate in the CFI of Manila on
  • People's Bank and Trust Company as executor of the will did as the will directed
  • Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions on the ground that they were deprived of their legitimes as illegitimate children
  • Probate Court: Relying upon Art. 16 of the Civil Code, it applied the national law of the decedent, which in this case is Texas law, which did not provide for legitimes.
ISSUE: W/N Texas laws or national law of Amos should govern the intrinsic validity of the will

HELD: YES. Order of the probate court is hereby affirmed
  • Doctrine of Processual Presumption:
    • The foreign law, whenever applicable, should be proved by the proponent thereof, otherwise, such law shall be presumed to be exactly the same as the law of the forum.
    • In the absence of proof as to the conflict of law rule of Texas, it should not be presumed different from ours.  Apply Philippine laws.
  • Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that —
  • ART. 16. Real property as well as personal property is subject to the law of the country where it is situated.
However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may he the nature of the property and regardless of the country wherein said property may be found.
  • ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent.
  • The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis.



Persons Case Digest: Llorente vs CA


Llorente vs CA
GR 124371 November 23, 2000

Lessons Applicable: Divorce

Laws Applicable: Art. 15,  Art. 17, Art. 26 FC

FACTS:
Alicia( 2nd wife) ß Lorenzo N. Llorente --- Paula (1ST wife) --- Ceferino Llorente (brother)
Crisologo Llorente(son)
  • Lorenzo N. Llorente was an enlisted serviceman of the United States Navy from March 10, 1927 to September 30, 1957
  • February 22, 1937: Lorenzo and Paula Llorente were married before a parish priest, Roman Catholic Church, in Nabua, Camarines Sur
  • Before the outbreak of the Pacific War, Lorenzo departed for the United States and Paula stayed in the conjugal home
  • November 30, 1943: Lorenzo was admitted to United States citizenship and Certificate of Naturalization
  • 1945: When Lorenzo was granted an accrued leave to visit his wife and he visited the Philippines, He discovered that his wife Paula was pregnant and was “living in” and having an adulterous relationship with his brother, Ceferino Llorente
  • December 4, 1945: Paula gave birth to a boy registered in the Office of the Registrar of Nabua as Crisologo Llorente with the certificate stating that the child was not legitimate and the line for the father’s name was left blank
  • Lorenzo refused to forgive Paula and live with her
  • February 2, 1946: the couple drew and signed a written agreement which was witnessed by Paula’s father and stepmother to the effect that
1.    all the family allowances allotted by the United States Navy as part of Lorenzo’s salary and all other obligations for Paula’s daily maintenance and support would be suspended
2.    they would dissolve their marital union in accordance with judicial proceedings
3.    they would make a separate agreement regarding their conjugal property acquired during their marital life; and
4.    Lorenzo would not prosecute Paula for her adulterous act since she voluntarily admitted her fault and agreed to separate from Lorenzo peacefully. 
  • November 16, 1951: Lorenzo returned and filed for divorce with the Superior Court of the State of California in and for the County of San Diego
  • December 4, 1952: the divorce decree became final
  • January 16, 1958: Lorenzo married Alicia F. Llorente in Manila and lived together as husband and wife and bore 3 children: Raul, Luz and Beverly, all surnamed Llorente
  • March 13, 1981: Lorenzo executed a Last Will and Testament where he bequeathed all his property to Alicia and their three children
  • December 14, 1983: Lorenzo filed with the RTC, Iriga, Camarines Sur, a petition for the probate and allowance of his last will and testament wherein Lorenzo moved that Alicia be appointed Special Administratrix of his estate
  • January 18, 1984: RTC denied the motion for the reason that the Lorenzo was still alive
  • January 24, 1984: RTC admitted finding that the will was duly executedthe will to probate
  • June 11, 1985: before the proceedings could be terminated, Lorenzo died
  • RTC on the petition for letters of administration filed by Paula over Lorenzo’s estate contending that she was the surviving spouse and WITHOUT terminating the testate proceedings filed by Alicia, gave due course to Paula’s petition
    • divorce decree granted to the late Lorenzo Llorente is void and inapplicable in the Philippines, therefore the marriage he contracted with Alicia Fortunato at Manila is void
      • Paula T. Llorente: 1/3 estate and ½ conjugal estate
      • illegitimate children, Raul, Luz and Beverly: 1/3 estate
  • RTC denied Alicia’s motion for reconsideration but modified that Raul and Luz Llorente are not children “legitimate or otherwise” of Lorenzo since they were not legally adopted by him thus, Beverly Llorente as the only illegitimate child of Lorenzo, entitles her to 1/3 of the estate and one-third (1/3) of the free portion of the estate
  • CA: Affirmed with modification

ISSUE: W/N the divorce is valid and proven

HELD: YES. Petition is GRANTED. REVERSES the decision of the Regional Trial Court and RECOGNIZES as VALID the decree of divorce granted in favor of the deceased Lorenzo N. Llorente by the Superior Court of the State of California in and for the County of San Diego, made final on December 4, 1952. REMANDS the cases to the court of origin for determination of the intrinsic validity of Lorenzo N. Llorente’s will and determination of the parties’ successional rights allowing proof of foreign law with instructions that the trial court shall proceed with all deliberate dispatch to settle the estate of the deceased within the framework of the Rules of Court.

  • Van Dorn v. Romillo, Jr.:
o    nationality principle in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces, the same being considered contrary to our concept of public policy and morality
o    Court ruled that aliens may obtain divorces abroad, provided they are valid according to their national law
  • Quita v. Court of Appeals:
o    once proven that NO longer a Filipino citizen when he obtained the divorce, the ruling in Van Dorn would become applicable
  • Divorce of Lorenzo H. Llorente from his first wife Paula was valid and recognized in this jurisdiction as a matter of comity.  Now, the effects of this divorce (as to the succession to the estate of the decedent) are matters best left to the determination of the trial court.
  • The clear intent of Lorenzo to bequeath his property to his second wife and children by her is glaringly shown in the will he executed.  We do not wish to frustrate his wishes, since he was a foreigner, not covered by our laws on “family rights and duties, status, condition and legal capacity.
  • Whether the will is intrinsically valid and who shall inherit from Lorenzo are issues best proved by foreign law which must be pleaded and proved. 
  • Whether the will was executed in accordance with the formalities required is answered by referring to Philippine law.  In fact, the will was duly probated.


Persons Case Digest: Garcia – Recio vs Recio


Garcia – Recio vs Recio

GR 138322, October 2, 2002

Lessons Applicable: divorce

Laws Applicable: Art. 15 and Art. 26 par. 2 FC

FACTS:

Grace J. Garcia-Recio (2nd mariage) ----- Rederick A. Recio à Editha Samson (Wife)

  • March 1, 1987: Rederick A. Recio, a Filipino was married to Editha Samson, an Australian citizen, in Malabon, Rizal
  • May 18, 1989: a decree of divorce, purportedly dissolving the marriage, was issued by an Australian family court
  • June 26, 1992: Recio became an Australian citizen, as shown by a "Certificate of Australian Citizenship" issued by the Australian government
  • January 12, 1994: Recio married Grace j. Garcia, a Filipino, in Cabanatuan City.  Recio declared himself as "single" and "Filipino."
  • October 22, 1995: Recio and Grace J. Garcia ak.a. Garcia-Recio begun to live separately without prior judicial dissolution of their marriage
  • May 16, 1996: In accordance to the Statutory Declarations secured in Australia, their conjugal assets were divided
  • March 3, 1998: Garcia-Recio filed a Complaint for Declaration of Nullity of Marriage  on the ground of bigamy claiming she only learned of the prior marriage in November, 1997
    • Recio prayed in his answer that it be dismissed for no cause of action
  • RTC: marriage dissolved on the ground that the divorce issued in Australia was valid and recognized in the Philippines

ISSUE: W/N the divorce between Recio and Samson was valid and proven

HELD: NO. Remand the case to the court a quo for the purpose of receiving evidence which conclusively show respondent's legal capacity to marry petitioner; and failing in that, of declaring the parties' marriage void on the ground of bigamy

  • Divorces:
1.    A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles 15 and 17 of the Civil Code. 
2.    In mixed marriages involving a Filipino and a foreigner, Article 26 of the Family Code allows the former to contract a subsequent marriage in case the divorce is "validly obtained abroad by the alien spouse capacitating him or her to remarry."
3.    A divorce obtained abroad by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with their respective national laws.
  • Before a foreign divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it
o    legal capacity to contract marriage is determined by the national law of the party concerned
o    A divorce obtained abroad is proven by the divorce decree itself
§  The decree purports to be a written act or record of an act of an officially body or tribunal of a foreign country
o    Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a public or official record of a foreign country by either:
1.    an official publication; or
2.    a copy thereof attested by the officer having legal custody of the document.
If the record is not kept in the Philippines, such copy must be:
1.    accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept; and
2.    authenticated by the seal of his office
  • Since the divorce was a defense raised by Recio, the burden of proving the pertinent Australian law validating it falls squarely upon him
  • In its strict legal sense, divorce means the legal dissolution of a lawful union for a cause arising after marriage. But divorces are of different types:
1.    absolute divorce or a vinculo matrimonii - terminates the marriage
2.    limited divorce or a mensa et thoro - suspends it and leaves the bond in full force
  • Recio presented a decree nisi or an interlocutory decree – a conditional or provisional judgment of divorce
o    On its face, the herein Australian divorce decree contains a restriction that reads:
"1. A party to a marriage who marries again before this decree becomes absolute (unless the other party has died) commits the offence of bigamy."

Jurisprudence: G.R. No. 138322


THIRD DIVISION
G.R. No. 138322           October 2, 2001
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner,
vs.
REDERICK A. RECIO, respondents.
PANGANIBAN, J.:

A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner. However, the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven. Our courts do not take judicial notice of foreign laws and judgment; hence, like any other facts, both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence.

The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the January 7, 1999 Decision1 and the March 24, 1999 Order2 of the Regional Trial Court of Cabanatuan City, Branch 28, in Civil Case No. 3026-AF. The assailed Decision disposed as follows:
"WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A. Recio solemnized on January 12, 1994 at Cabanatuan City as dissolved and both parties can now remarry under existing and applicable laws to any and/or both parties."3
The assailed Order denied reconsideration of the above-quoted Decision.

The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon, Rizal, on March 1, 1987.4 They lived together as husband and wife in Australia. On May 18, 1989,5 a decree of divorce, purportedly dissolving the marriage, was issued by an Australian family court.
On June 26, 1992, respondent became an Australian citizen, as shown by a "Certificate of Australian Citizenship" issued by the Australian government.6 Petitioner – a Filipina – and respondent were married on January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan City.7 In their application for a marriage license, respondent was declared as "single" and "Filipino."8
Starting October 22, 1995, petitioner and respondent lived separately without prior judicial dissolution of their marriage. While the two were still in Australia, their conjugal assets were divided on May 16, 1996, in accordance with their Statutory Declarations secured in Australia.9
On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage10 in the court a quo, on the ground of bigamy – respondent allegedly had a prior subsisting marriage at the time he married her on January 12, 1994. She claimed that she learned of respondent's marriage to Editha Samson only in November, 1997.
In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his prior marriage and its subsequent dissolution.11 He contended that his first marriage to an Australian citizen had been validly dissolved by a divorce decree obtained in Australian in 1989;12 thus, he was legally capacitated to marry petitioner in 1994.
On July 7, 1998 – or about five years after the couple's wedding and while the suit for the declaration of nullity was pending – respondent was able to secure a divorce decree from a family court in Sydney, Australia because the "marriage ha[d] irretrievably broken down."13
Respondent prayed in his Answer that the Complained be dismissed on the ground that it stated no cause of action.14 The Office of the Solicitor General agreed with respondent.15 The court marked and admitted the documentary evidence of both parties.16 After they submitted their respective memoranda, the case was submitted for resolution.17
Thereafter, the trial court rendered the assailed Decision and Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on the ground that the divorce issued in Australia was valid and recognized in the Philippines. It deemed the marriage ended, but not on the basis of any defect in an essential element of the marriage; that is, respondent's alleged lack of legal capacity to remarry. Rather, it based its Decision on the divorce decree obtained by respondent. The Australian divorce had ended the marriage; thus, there was no more martial union to nullify or annual.
Hence, this Petition.18
Issues
Petitioner submits the following issues for our consideration:
"I
The trial court gravely erred in finding that the divorce decree obtained in Australia by the respondent ipso facto terminated his first marriage to Editha Samson thereby capacitating him to contract a second marriage with the petitioner.
"2
The failure of the respondent, who is now a naturalized Australian, to present a certificate of legal capacity to marry constitutes absence of a substantial requisite voiding the petitioner' marriage to the respondent.
"3
The trial court seriously erred in the application of Art. 26 of the Family Code in this case.
"4
The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of the Family Code as the applicable provisions in this case.
"5
The trial court gravely erred in pronouncing that the divorce gravely erred in pronouncing that the divorce decree obtained by the respondent in Australia ipso facto capacitated the parties to remarry, without first securing a recognition of the judgment granting the divorce decree before our courts."19
The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two pivotal ones: (1) whether the divorce between respondent and Editha Samson was proven, and (2) whether respondent was proven to be legally capacitated to marry petitioner. Because of our ruling on these two, there is no more necessity to take up the rest.
The Court's Ruling
The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and Editha Samson
Petitioner assails the trial court's recognition of the divorce between respondent and Editha Samson. Citing Adong v. Cheong Seng Gee,20 petitioner argues that the divorce decree, like any other foreign judgment, may be given recognition in this jurisdiction only upon proof of the existence of (1) the foreign law allowing absolute divorce and (2) the alleged divorce decree itself. She adds that respondent miserably failed to establish these elements.
Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages solemnized abroad are governed by the law of the place where they were celebrated (the lex loci celebrationist). In effect, the Code requires the presentation of the foreign law to show the conformity of the marriage in question to the legal requirements of the place where the marriage was performed.
At the outset, we lay the following basic legal principles as the take-off points for our discussion. Philippine law does not provide for absolute divorce; hence, our courts cannot grant it.21 A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles 1522 and 1723 of the Civil Code.24 In mixed marriages involving a Filipino and a foreigner, Article 2625 of the Family Code allows the former to contract a subsequent marriage in case the divorce is "validly obtained abroad by the alien spouse capacitating him or her to remarry."26 A divorce obtained abroad by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with their respective national laws.27
A comparison between marriage and divorce, as far as pleading and proof are concerned, can be made. Van Dorn v. Romillo Jr. decrees that "aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law."28 Therefore, before a foreign divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it.29 Presentation solely of the divorce decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply with the registration requirements under Articles 11, 13 and 52 of the Family Code. These articles read as follows:
"ART. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which shall specify the following:
x x x     x x x     x x x
"(5) If previously married, how, when and where the previous marriage was dissolved or annulled;
x x x      x x x      x x x
"ART. 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth of baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of annulment or declaration of nullity of his or her previous marriage. x x x.
"ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect their persons."
Respondent, on the other hand, argues that the Australian divorce decree is a public document – a written official act of an Australian family court. Therefore, it requires no further proof of its authenticity and due execution.
Respondent is getting ahead of himself. Before a foreign judgment is given presumptive evidentiary value, the document must first be presented and admitted in evidence.30 A divorce obtained abroad is proven by the divorce decree itself. Indeed the best evidence of a judgment is the judgment itself.31 The decree purports to be a written act or record of an act of an officially body or tribunal of a foreign country.32
Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a public or official record of a foreign country by either (1) an official publication or (2) a copy thereof attested33 by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office.34
The divorce decree between respondent and Editha Samson appears to be an authentic one issued by an Australian family court.35 However, appearance is not sufficient; compliance with the aforemetioned rules on evidence must be demonstrated.
Fortunately for respondent's cause, when the divorce decree of May 18, 1989 was submitted in evidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had not been registered in the Local Civil Registry of Cabanatuan City.36 The trial court ruled that it was admissible, subject to petitioner's qualification.37Hence, it was admitted in evidence and accorded weight by the judge. Indeed, petitioner's failure to object properly rendered the divorce decree admissible as a written act of the Family Court of Sydney, Australia.38
Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary; respondent was no longer bound by Philippine personal laws after he acquired Australian citizenship in 1992.39 Naturalization is the legal act of adopting an alien and clothing him with the political and civil rights belonging to a citizen.40 Naturalized citizens, freed from the protective cloak of their former states, don the attires of their adoptive countries. By becoming an Australian, respondent severed his allegiance to the Philippines and the vinculum juris that had tied him to Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian divorce law falls upon petitioner, because she is the party challenging the validity of a foreign judgment. He contends that petitioner was satisfied with the original of the divorce decree and was cognizant of the marital laws of Australia, because she had lived and worked in that country for quite a long time. Besides, the Australian divorce law is allegedly known by Philippine courts: thus, judges may take judicial notice of foreign laws in the exercise of sound discretion.
We are not persuaded. The burden of proof lies with "the party who alleges the existence of a fact or thing necessary in the prosecution or defense of an action."41 In civil cases, plaintiffs have the burden of proving the material allegations of the complaint when those are denied by the answer; and defendants have the burden of proving the material allegations in their answer when they introduce new matters.42 Since the divorce was a defense raised by respondent, the burden of proving the pertinent Australian law validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws.43 Like any other facts, they must be alleged and proved. Australian marital laws are not among those matters that judges are supposed to know by reason of their judicial function.44 The power of judicial notice must be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative.
Second Issue:
Respondent's Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of the divorce, respondent was legally incapacitated to marry her in 1994.
Hence, she concludes that their marriage was void ab initio.
Respondent replies that the Australian divorce decree, which was validly admitted in evidence, adequately established his legal capacity to marry under Australian law.
Respondent's contention is untenable. In its strict legal sense, divorce means the legal dissolution of a lawful union for a cause arising after marriage. But divorces are of different types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and (2) limited divorce or a mensa et thoro. The first kind terminates the marriage, while the second suspends it and leaves the bond in full force.45 There is no showing in the case at bar which type of divorce was procured by respondent.
Respondent presented a decree nisi or an interlocutory decree – a conditional or provisional judgment of divorce. It is in effect the same as a separation from bed and board, although an absolute divorce may follow after the lapse of the prescribed period during which no reconciliation is effected.46
Even after the divorce becomes absolute, the court may under some foreign statutes and practices, still restrict remarriage. Under some other jurisdictions, remarriage may be limited by statute; thus, the guilty party in a divorce which was granted on the ground of adultery may be prohibited from remarrying again. The court may allow a remarriage only after proof of good behavior.47
On its face, the herein Australian divorce decree contains a restriction that reads:
"1. A party to a marriage who marries again before this decree becomes absolute (unless the other party has died) commits the offence of bigamy."48
This quotation bolsters our contention that the divorce obtained by respondent may have been restricted. It did not absolutely establish his legal capacity to remarry according to his national law. Hence, we find no basis for the ruling of the trial court, which erroneously assumed that the Australian divorce ipso facto restored respondent's capacity to remarry despite the paucity of evidence on this matter.
We also reject the claim of respondent that the divorce decree raises a disputable presumption or presumptive evidence as to his civil status based on Section 48, Rule 3949 of the Rules of Court, for the simple reason that no proof has been presented on the legal effects of the divorce decree obtained under Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was not submitted together with the application for a marriage license. According to her, its absence is proof that respondent did not have legal capacity to remarry.
We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the party concerned. The certificate mentioned in Article 21 of the Family Code would have been sufficient to establish the legal capacity of respondent, had he duly presented it in court. A duly authenticated and admitted certificate is prima facie evidence of legal capacity to marry on the part of the alien applicant for a marriage license.50
As it is, however, there is absolutely no evidence that proves respondent's legal capacity to marry petitioner. A review of the records before this Court shows that only the following exhibits were presented before the lower court: (1) for petitioner: (a) Exhibit "A" – Complaint;51 (b) Exhibit "B" – Certificate of Marriage Between Rederick A. Recto (Filipino-Australian) and Grace J. Garcia (Filipino) on January 12, 1994 in Cabanatuan City, Nueva Ecija;52(c) Exhibit "C" – Certificate of Marriage Between Rederick A. Recio (Filipino) and Editha D. Samson (Australian) on March 1, 1987 in Malabon, Metro Manila;53 (d) Exhibit "D" – Office of the City Registrar of Cabanatuan City Certification that no information of annulment between Rederick A. Recto and Editha D. Samson was in its records;54 and (e) Exhibit "E" – Certificate of Australian Citizenship of Rederick A. Recto;55 (2) for respondent: (Exhibit "1" – Amended Answer;56 (b) Exhibit "S" – Family Law Act 1975 Decree Nisi of Dissolution of Marriage in the Family Court of Australia;57 (c) Exhibit "3" – Certificate of Australian Citizenship of Rederick A. Recto;58 (d) Exhibit "4" – Decree Nisi of Dissolution of Marriage in the Family Court of Australia Certificate;59 and Exhibit "5" – Statutory Declaration of the Legal Separation Between Rederick A. Recto and Grace J. Garcia Recio since October 22, 1995.60
Based on the above records, we cannot conclude that respondent, who was then a naturalized Australian citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree with petitioner's contention that the court a quo erred in finding that the divorce decree ipso facto clothed respondent with the legal capacity to remarry without requiring him to adduce sufficient evidence to show the Australian personal law governing his status; or at the very least, to prove his legal capacity to contract the second marriage.
Neither can we grant petitioner's prayer to declare her marriage to respondent null and void on the ground of bigamy. After all, it may turn out that under Australian law, he was really capacitated to marry petitioner as a direct result of the divorce decree. Hence, we believe that the most judicious course is to remand this case to the trial court to receive evidence, if any, which show petitioner's legal capacity to marry petitioner. Failing in that, then the court a quo may declare a nullity of the parties' marriage on the ground of bigamy, there being already in evidence two existing marriage certificates, which were both obtained in the Philippines, one in Malabon, Metro Manila dated March 1, 1987 and the other, in Cabanatuan City dated January 12, 1994.
WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the case to the court a quo for the purpose of receiving evidence which conclusively show respondent's legal capacity to marry petitioner; and failing in that, of declaring the parties' marriage void on the ground of bigamy, as above discussed. No costs.
SO ORDERED.
Melo, Puno, Vitug, and Sandoval-Gutierrez, JJ., concur.

Persons Case Digest: Marcos v. Judge Fernando Vil. Pamintuan (2011)

Marcos v. Judge Fernando Vil. Pamintuan
A.M. RTJ-07-2062, Jan 18, 2011

Lessons Applicable: Ignorance of the Law

FACTS:
·         Judge Reyes in an order on May 30, 1996 dismissed Civil Case No. 3383-R due to forum shopping and ordered that that the Buddha statuette in the custody of this Court be immediately released to the children of the late Rogelio Roxas in trust for the estate of the late Rogelio Roxas
·         RTC: Denied the separate motions for reconsideration by the parties
·         Judge Pamintuan in an order dated May 9, 2006 set the case for hearing on June 29, 2006 purportedly to formally and finally release the Golden Buddha to its rightful owner.
o    Marcos was one of the subpoenaed parties, being a person with interest in the case
o    Buddha Statuette or Buddha replica is awarded to the estate of Rogelio Roxas.  However, the Buddha Statuette or Buddha replica shall be under custodia legis until the final settlement of the estate of the late Rogelio Roxas, or upon the appointment of his estate’s administrator
o    Also ruled that the Golden Buddha in its custody is a fake one
·         November 15, 2006: Marcos filed a complaint-affidavit charging Judge Pamintuan with Gross Ignorance of the Law for reversing motu proprio the final and executory order of then Acting Presiding Judge Antonio Reyes in Civil Case No. 3383-R, entitled “Albert D. Umali, in his capacity as the exclusive administrator and as President of the Treasure Hunters Association of the Philippines v. Jose D. Roxas, et al.
o    Pamintuan Commented that Marcos should have filed a motion for reconsideration instead of filing an administrative complaint.
o    Marcos, in her Reply-Affidavit, cited Section 1 of Rule 37 which provides that only the aggrieved party may file a motion for reconsideration within the period for taking an appeal
·         Office of the Court Administrator (OCA) recommended that Judge Pamintuan be dismissed from the service with the additional penalty of forfeiture of all his retirement benefits and disqualification from re-employment in the government service, including government owned or controlled corporations, for Gross Ignorance of the Law and for violation of Canon 4 of the Code of Judicial Conduct.
o    A final judgment may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact or law.  Should judgment of lower courts – which may normally be subject to review by higher tribunals – become final and executory before, or without exhaustion of all recourse of appeal, they too become inviolable, impervious to modification. 
·         Judge Pamintuan was placed under preventive suspension pending resolution of the administrative case to stop him from committing further damage to the judiciary.
·         Judge Pamintuan moved for reconsideration and eventually filed a Motion for Early Resolution of Motion for Reconsideration and to Submit the Case for Decision.
·         Judge Pamintuan then sent a letter requesting for his backpay and benefits covering the period of his preventive suspension - denied for being premature and for lack of merit

ISSUE: W/N Judge Pamintuan is guilty of Gross Ignorance of the Law

HELD:  Judge Fernando Vil Pamintuan of the RTC of Baguio City, Branch 3, is DISMISSED from the service
·         Judge Pamintuan should have realized that the trial court did not rule on that point that the Golden Buddha is fake in its May 30, 1996 Order (even in its September 2, 1996 Order)
·         Section 6, Canon 4 of the New Code of Judicial Conduct:
o    SECTION 6.  Judges, like any other citizen, are entitled to freedom of expression, belief, association and assembly, but in exercising such rights, they shall always conduct themselves in such manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary.
·         The doctrine of immutability and inalterability of a final judgment has a two-fold purpose, to wit:
  1. to avoid delay in the administration of justice and thus, procedurally, to make orderly the discharge of judicial business
  2. to put an end to judicial controversies, at the risk of occasional errors, which is precisely why courts exist.
·         Notably, this is NOT Judge Pamintuan’s first and sole administrative case.  Judge Pamintuan was charged with Gross Ignorance of the Law, Gross Violation of the Constitutional Rights of the Accused, Arrogance and Violation of the Canons of Judicial Ethics and was suspended for 1 year. Having been previously warned and punished for various infractions, Judge Pamintuan now deserves the ultimate administrative penalty − dismissal from service

Jurisprudence: A.M. No. RTJ-07-2062

EN BANC

IMELDA R. MARCOS v. JUDGE FERNANDO VIL PAMINTUAN,

A.M. No. RTJ-07-2062   January 18, 2011

D E C I S I O N


Per Curiam:

        
The judiciary cannot keep those who cannot meet the exacting standards of judicial conduct and integrity. This being so, in the performance of the functions of their office, judges must endeavor to act in a manner that puts them and their conduct above reproach and beyond suspicion.  They must act with extreme care for their office indeed is burdened with a heavy load of responsibility.[1]           


            At bench is an administrative case filed by Imelda R. Marcos (Marcos) against Judge Fernando Vil Pamintuan (Judge Pamintuan), Presiding Judge, Branch 3, Regional Trial Court, Baguio City (RTC), for  Gross Ignorance of the Law.


THE FACTS:


            From the records, it appears that on November 15, 2006, Marcos  filed a complaint-affidavit charging Judge Pamintuan with Gross Ignorance of the Law for reversing motu proprio the final and executory order of then Acting Presiding Judge Antonio Reyes (Judge Reyes) dated May 30, 1996 (and modified in the September 2, 1996 order), in Civil Case No. 3383-R, entitled “Albert D. Umali, in his capacity as the exclusive administrator and as President of the Treasure Hunters Association of the Philippines v. Jose D. Roxas, et al.

          Judge Reyes dismissed Civil Case No. 3383-R in an order, dated May 30, 1996, the dispositive portion of which reads:

            WHEREFORE, in view of the foregoing premises and further, for failure to comply with Supreme Court Administrative Circular No. 04-94 dated April 1, 1994 on forum shopping, the petition is DISMISSED.

            It is further ORDERED that the Buddha statuette in the custody of this Court be immediately RELEASED to the children of the late Rogelio Roxas, namely, Henry Roxas and Gervic Roxas and to decedent’s brother, Jose Roxas, IN TRUST FOR the estate of the late Rogelio Roxas.

SO ORDERED.


The parties filed their separate motions for reconsideration of the said order but both motions were denied by the RTC for lack of merit in its June 24, 1996 Order.

On June 25, 1996, the Office of the Solicitor General (OSG) filed its own motion for reconsideration which was also denied in a court order dated September 2, 1996.

Ten (10) years later, in an order dated May 9, 2006, Judge Pamintuan set the case for hearing on June 29, 2006 purportedly to formally and finally release the Golden Buddha to its rightful owner.  Marcos was one of the subpoenaed parties, being a person with interest in the case.

On August 15, 2006, Judge Pamintuan issued an order, the dispositive portion of which reads:

WHEREFORE, in accordance with the final and executory Order of this Court dated September 2, 1996, the Buddha Statuette or Buddha replica is awarded to the estate of Rogelio Roxas.  However, the Buddha Statuette or Buddha replica shall be under custodia legis until the final settlement of the estate of the late Rogelio Roxas, or upon the appointment of his estate’s administrator.

This Court further rules that the Golden Buddha in its custody is a fake one, or a mere replica of the original Golden Buddha which has a detachable head, which has been missing since 1971 up to the present, or for a period of thirty five (35) years by now, and has been in unlawful possession of persons who do not have title over it, nor any right at all to possess this original Golden Buddha.


            Marcos averred that the act of Judge Pamintuan in reversing a final and executory order constituted gross ignorance of the law.  In her complaint, citing A.M. No. 93-7-696-0, she argued that final and executory judgments of lower courts were not reviewable even by the Supreme Court.  Judge Pamintuan reversed a final and executory order not upon the instance of any of the parties in Civil Case No. 3383-R but motu proprio.  He even failed to indicate where he obtained the information that the Golden Buddha sitting in his sala was a “mere replica.”  Marcos claimed that his order was in conflict with Rule 36 of the Revised Rules of Civil Procedure which provides that a judgment or final order shall state “clearly and distinctly the facts and the law on which it (his order) is based xxx.”

          In his Comment, Judge Pamintuan argued that Marcos could have just filed a pleading manifesting lack of interest or moving for the recall of the subpoena, but she did not.  In fact, her counsel, Atty. Robert Sison, entered his appearance and actually appeared in court.  With her appearance through counsel, she subjected herself to the jurisdiction of the court.  She should have filed a motion for reconsideration of the August 15, 2006 Order instead of filing an administrative complaint. As she did not, Judge Pamintuan opined that her lost judicial remedies could not be substituted with the filing of this case.
        
Marcos, in her Reply-Affidavit, stated that she was not a party in Civil Case No. 3383-R, hence, she could not file a motion for reconsideration.  She cited Section 1 of Rule 37 which provides that only the aggrieved party may file a motion for reconsideration within the period for taking an appeal.

In its Report, dated June 29, 2007, the Office of the Court Administrator (OCA) recommended that Judge Pamintuan be dismissed from the service with the additional penalty of forfeiture of all his retirement benefits and disqualification from re-employment in the government service, including government owned or controlled corporations, for Gross Ignorance of the Law and for “violation of Canon 4 of the Code of Judicial Conduct.”  The OCA pointed out that:


            As held, execution is the fruit and end of the suit and is the life of the law.  A judgment, if left unexecuted, would be nothing but an empty victory for the prevailing party.  Bearing this in mind, respondent issued the questioned Order dated August 15, 2006, the pertinent text of which reads:

            Despite said Order which was issued almost ten (10) years ago, the estate of the late Rogelio Roxas has not taken possession of the Buddha Statuette or the Buddha replica from the Court, thus, this incumbent Presiding Judge, seeing the necessity of finally disposing of the Buddha Statuette physically, and finding out the present statue of the late Rogelio Roxas, ordered the hearing on June 29, 2006.  (Italics supplied)

                        xxx                  xxx                  xxx

            WHEREFORE, in accordance with the final and executory Order of this Court dated September 2, 1996, the Buddha Statuette or Buddha replica is awarded to the estate of Rogelio Roxas.  However, the Buddha Statuette or Buddha replica shall be under custodia legis until the final settlement of the estate of the late Rogelio Roxas, or upon the appointment of his estate’s administrator.

Clearly, the questioned Order conforms to the directive of the Court in its previous Order dated May 30, 1996, which provides:

It is further ORDERED that the Buddha Statuette in custody of this Court be immediately RELEASED to the children of the late Rogelio Roxas, namely, Henry Roxas and Gervic Roxas and to the decedent’s brother, Jose Roxas, IN TRUST FOR the estate of the late Rogelio Roxas.


And modified in an Order dated September 2, 1996, which reads:

          
“WHEREFORE, the Motion for Reconsideration filed by the Solicitor General is DENIED.  The Order of this Court on May 30, 1996 remains insofar as the Buddha statuette is awarded to the state of the late Rogelio Roxas and is at the same time MODIFIED in the sense that the Buddha statuette shall be under the custodia legis until the final settlement of the estate of the late Rogelio Roxas or upon the appointment of his estate’s administrator.”

x x x                x x x                x x x


A normal course of proceedings would have been that respondent Judge waits for the proper party to go to court to ask for the release of the Buddha statuette. x x x.

However, respondent was being overzealous when he ruled that the Golden Buddha in its custody is a “fake one, or a mere replica.”  Notwithstanding that the same may be his’ and the litigants’ opinion during the hearing of June 29, 2006. (sic) He should have borne in mind that there were no issues nor controversies left for consideration in Civil Case No. 3383-R.  It must be noted that the Order dated May 30, 1996 (and modified on September 2, 1996) has become final and executory.  Hence, issues have been settled and the matter laid to rest.  As repeatedly ruled by this Court, a decision that has acquired finality becomes immutable and unalterable.  A final judgment may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact or law.  Should judgment of lower courts – which may normally be subject to review by higher tribunals – become final and executory before, or without exhaustion of all recourse of appeal, they too become inviolable, impervious to modification.  They may, then, no longer be reviewed, or in any way modified directly or indirectly, by a higher court, not even by Supreme Court, much less by any other official, branch or department of government.

It is inexcusable for respondent Judge to have overlooked such an elementary legal principle.”


Upon recommendation of the OCA, the Court, in its July 31, 2007 Resolution, preventively suspended Judge Pamintuan pending resolution of this administrative case to stop him from committing further damage to the judiciary. Judge Pamintuan moved for reconsideration and eventually filed a Motion for Early Resolution of Motion for Reconsideration and to Submit the Case for Decision.

The matter was referred again to the OCA for evaluation, report and recommendation. In its Memorandum dated November 22, 2007, the OCA recommended that “the Motion for Reconsideration filed by respondent be GRANTED and that the Order of Preventive Suspension dated July 31, 2007, be LIFTED.”   Thus, in its December 11, 2007 Resolution, the Court granted the Motion for Reconsideration filed by Judge Pamintuan and lifted the Order of Preventive Suspension effective immediately.

Judge Pamintuan then sent a letter requesting for his backpay and benefits covering the period of his preventive suspension from August to December 13, 2007.  In its June 3, 2008 Resolution, following the recommendation of the OCA, the Court denied said request for being premature and for lack of merit.

Now, the Court resolves the complaint against Judge Pamintuan.

After a thorough study of the case, the Court agrees with the evaluation and recommendation of the OCA.

Doubtless, the May 30, 1996 Order, which was modified on September 2, 1996, in Civil Case No. 3383-R, has long become final and executory.  In his assailed August 15, 2006 Order, Judge Pamintuan made express declarations that were not embodied either in the May 30, 1996 Order or in the September 2, 1996 Order. He ruled that the Golden Buddha in the custody of the court was a “fake one, or a mere replica” of the original.  This may be his opinion or the litigants’ during the hearing of June 29, 2006 but Judge Pamintuan should have realized that the trial court did not rule on that point in its May 30, 1996 Order (even in its September 2, 1996 Order).  Insofar as this issue is concerned, the May 30, 1996 Order pertinently reads:

Albert Umali anchors his claim on the supposed Memorandum of Agreement between him and the late Rogelio Roxas executed on November 25, 1988. He claims that under this agreement, he and Rogelio Roxas will share in the profits of their business venture, that is, treasure hunting and claim for lost treasure.

He adds, however, that the Buddha with this Court is not the genuine Buddha. According to him, he has photographs to prove the existence of the real and genuine golden Buddha. To be sure, this Court is baffled by the foregoing submission of Mr. Umali, if the subject Buddha is not the genuine golden Buddha, and therefore a fake one, it cannot be covered by the memorandum of Agreement.

Be it noted that the Memorandum of Agreement speaks of treasure hunting and lost treasure which could refer to things of great value. Based on Mr. Umali’s own claim the subject Buddha has no appreciable material value. It is therefore outside the scope of the Memorandum of Agreement. This being the case, what right then does Albert Umali have to demand the return of the subject Buddha to him? On this score alone, this Court should already reject the claim of Mr. Umali over the Buddha now in this Court’s custody.

            x x x                x x x                x x x

Now, as to whether or not there is that controversial golden Buddha different from the one now in custody of this Court, there is none. X x x.       

Section 6, Canon 4 of the New Code of Judicial Conduct provides:
SECTION 6.  Judges, like any other citizen, are entitled to freedom of expression, belief, association and assembly, but in exercising such rights, they shall always conduct themselves in such manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary. [Emphases ours]

Judge Pamintuan indeed made a serious error in making such a pronouncement in the challenged order.
It is axiomatic that when a judgment is final and executory, it becomes immutable and unalterable. It may no longer be modified in any respect either by the court which rendered it or even by this Court. The doctrine of immutability and inalterability of a final judgment has a two-fold purpose, to wit: (1) to avoid delay in the administration of justice and thus, procedurally, to make orderly the discharge of judicial business; and (2) to put an end to judicial controversies, at the risk of occasional errors, which is precisely why courts exist. Controversies cannot drag on indefinitely.[2]

          It is inexcusable for Judge Pamintuan to have overlooked such basic legal principle no matter how noble his objectives were at that time. Judges owe it to the public to be well-informed, thus, they are expected to be familiar with the statutes and procedural rules at all times.  When the law is so elementary, not to know it or to act as if one does not know it, constitutes gross ignorance of the law.[3]

          The Court agrees with the view of OCA that Judge Pamintuan manifested gross ignorance of the law in issuing the questioned August 15, 2006 Order. Verily, he failed to conform to the high standards of competence required of judges under the Code of Judicial Conduct, which provides that:

          Rule 1.01 - A judge should be the embodiment of competence, integrity, and independence.

          Rule 3.01 - A judge shall x x x maintain professional competence.

Competence is a mark of a good judge.  When a judge exhibits an utter lack of know-how with the rules or with settled jurisprudence, he erodes the public’s confidence in the competence of our courts. It is highly crucial that judges be acquainted with the law and basic legal principles. Ignorance of the law, which everyone is bound to know, excuses no one - not even judges.[4]

Notably, this is not Judge Pamintuan’s first and sole administrative case. In The Officers and Members of the Integrated Bar of the Philippines Baguio-Benguet Chapter v. Pamintuan,[5] Judge Pamintuan was charged with  Gross Ignorance of the Law, Gross Violation of the Constitutional Rights of the Accused, Arrogance and Violation of the Canons of Judicial Ethics and was suspended for one (1) year.

In the case of Atty. Gacayan v. Hon. Pamintuan,[6] he was found guilty of violating Canons 2 of the Code of Judicial Conduct and Canon 3 of the Code of Judicial Ethics which amounted to grave misconduct, conduct unbecoming of an officer of the judiciary and conduct prejudicial to the best interest of the service. He was reprimanded and was sternly warned that a repetition of the foregoing or similar transgressions would be dealt with more severely. He was also meted a fine of P10,000.00.

In a much recent case, Biggel v. Pamintuan,[7] he was charged with manifest partiality, gross misconduct, ignorance of the law, and unjust and malicious delay in the resolution of the incidents in Criminal Case No. 25383-R entitled “People of the Philippines v. Emil Biggel,” a case for estafa.  He was found guilty of violating Rule 3.05 of the Code of Judicial Conduct, which requires judges to dispose of court business promptly. The Court imposed upon him a fine in the amount of P20,000.00, with a stern warning that a repetition of the same or similar acts would be dealt with more severely.

As of this time, there is another administrative case yet to be resolved against Judge Pamintuan filed by one Peter Cosalan for gross ignorance of the law.[8]  Although, this is not pertinent in the resolution of this case, it is clear from the other undisputed records that Judge Pamintuan has failed to meet the exacting standards of judicial conduct and integrity. He has shown himself unworthy of the judicial robe and place of honor reserved for guardians of justice. As held in the case of Malabed v. Asis:[9]
Respondent Judge must bear in mind that membership in the judiciary circumscribes one’s personal conduct and imposes upon him certain restrictions, the faithful observance of which is the price one has to pay for holding such a distinguished position.  x x x His conduct must be able to withstand the most searching public scrutiny, for the ethical principles and sense of propriety of a judge are essential to the preservation of the people’s faith in the judicial system lest public confidence in the judiciary would be eroded by the incompetent, irresponsible and negligent conduct of judges.

          The Court has held time and again that a judge is expected to demonstrate more than just a cursory acquaintance with statutes and procedural rules.  It is essential that he be familiar with basic legal principles and be aware of well-settled doctrines.[10]

          As fittingly stated in the case of Borromeo v. Mariano,[11] “Our conception of good judges has been, and is, of men who has a mastery of the principles of law, who discharge their duties in accordance with law.”  Thus, this Court has had the occasion to hold that:

            When the inefficiency springs from a failure to consider so basic and elemental a rule, a law or a principle in the discharge of his duties, a judge is either too incompetent and undeserving of the position and title he holds or he is too vicious that the oversight or omission was deliberately done in bad faith and in grave abuse of judicial authority. In both instances, the judge’s dismissal is in order. After all, faith in the administration of justice exists only if every party-litigant is assured that occupants of the bench cannot justly be accused of deficiency in their grasp of legal principles.[12]  


In this case, the Court finds Judge Pamintuan accountable for gross ignorance of the law.  He could have simply been suspended and fined, but the Court cannot take his previous infractions lightly.  His violations are serious in character.  Having been previously warned and punished for various infractions, Judge Pamintuan now deserves the ultimate administrative penalty − dismissal from service.

The Court doubts if he ever took seriously its previous warnings that a repetition of his offenses would merit a more severe sanction from this Court. His conduct in this case and his prior infractions are grossly prejudicial to the best interest of the service. As shown from the cited administrative cases filed against Judge Pamintuan, he was liable not only for gross ignorance of the law but for other equally serious transgressions. This Court should, therefore, refrain from being lenient, when doing so would give the public the impression that incompetence and repeated offenders are tolerated in the judiciary.

WHEREFORE, respondent Judge Fernando Vil Pamintuan of the Regional Trial Court of Baguio City, Branch 3, is DISMISSED from the service. He shall forthwith CEASE and DESIST from performing any official act or function appurtenant to his office upon service on him of this decision.

SO ORDERED.