Motion for reconsideration/new trial and/or to reopen a criminal case; illegal possession of firearm case; effects of the gross negligence of former defense counsel.

For legal research purposes of our readers, below is a motion our law office has filed with a trial court seeking the reconsideration/new trial and/or reopening of a criminal case for illegal possession of firearm wherein the accused was earlier convicted.

The legal issued involved in the  motion are proof beyond reasonable doubt as the mandatory quantum of evidence needed to convict an accused, the righta to due process/equal protection of the law, and the gross negligence of counsel.

“OMNIBUS MOTION

(1)       FOR NEW TRIAL/RECONSIDERATION;

OR, IN THE ALTERNATIVE,

(2)            TO REOPEN THE CASE

          THE ACCUSED xxxx, assisted by his newly retained defense counsel, respectfully states:

I.                 SUBJECT MATTER

OF THIS OMNIBUS MOTION

The subject matter of this omnibus motion is the DECISION, dated xxx, which was promulgated on xxx. (See Order, xxx, allowing the accused provisional liberty under the same bond for purposes of appeal).

This omnibus motion is VERIFIED. The accused adopts the full body of this motion as his AFFIDAVIT OF MERIT in support of his motion.

II.               MATERIAL DATES

The said Decision having been promulgated on xxx in the presence of the accused and his former counsel, Atty. Xxx, the 15th day of the accused to file this omnibus motion would expire on xxx. This motion is intended to be filed by the undersigned counsel on xxx after the proper final review and editing procedures.

III.           GROUNDS FOR THE OMNIBUS MOTION

The accused seeks a RECONSIDERATION of the Decision on the following grounds:

1.      The prosecution evidence has failed to prove the guilt of the accused beyond reasonable doubt.

2.    With all due respect, the Honorable Court has grossly misappreciated and misinterpreted the evidence on record resulting in a grave miscarriage of justice.

3.    The former defense counsel, Atty. Xxx, had committed gross negligence resulting in a grave miscarriage of justice and in a grave violation of the fundamental constitutional rights of the accused to:

(a) procedural and substantive due process of law,

(b) to equal protection of the law, and

(c) to competent and independent counsel,

all of which warrants a RE-OPENING of the case to enable the accused, in the interest of truth and justice, to present crucial exculpating evidence discussed hereinbelow, which evidence, if admitted, would result in his ACQUITTAL.

In the alternative, the accused seeks the RE-OPENING of the instant case to enable him and his newly retained counsel to present crucial exculpating evidence which his former counsel, by his gross negligence, failed to introduce in his defense to prove his innocence, i.e., the Mission Order (Appointment), Memorandum Receipt, and other related documents, which are discussed hereinbelow, issued by the xxx Service of the Armed Forces of the Philippines, of which he is a duly appointed xxx with the official authority to possess a firearm and to carry the same outside his residence in such official capacity.

The crucial exculpating evidence referred to above are as follows:

1.      Annex “A”. – CERTIFICATION, dated xxx, issued by xxx, xxx Commander, xxx, xxx Service, Armed Forces of the Philippines.

It certifies that the accused Xxx was a xxx of xxx, with authority to carry a Cal. .45 Xxx Pistol.

2.    Annex “B”. -  AFFIDAVIT, dated xxx, executed by the accused, stating that he was the owner of a firearm described as: Xxx Pistol, Caliber .45, Model 1911, and with Serial No. 1108548; and that he had donated the same to the xxx Group xxx, xxxAFP.

The affidavit, is signed, by way of acceptance of the said donation, by xxx, responsible xxx Officer.

3.    Annex “C”. – MISSION ORDER (APPOINTMENT), dated xxx, described as “AZxxx” and with “CN: xxx”, issued by xxx, xxx Commander, xxx, xxx Service, Armed Forces of the Philippines, appointing the accused as a xxx of xxxAFP until xxx.

It states that his mission area covers the following regions: NCR, CAR, CARAGA, ARMM, REGION 1 to REGION 12.

It further states that by virtue of his Mission Order, the accused was being issued “Government-owned firearms and radio for use in the performance of (his) official duties”.    

4.    Annex “D”. - MISSION ORDER (APPOINTMENT), dated xxx, described as “AZxxx” and with “CN: x x x”, issued by xxx, xxx Commander, xxx, xxx Service, Armed Forces of the Philippines, appointing the accused as a xxx of xxxAFP until xxx.

It states that his mission area covers the following regions: NCR, CAR, CARAGA, ARMM, REGION 1 to REGION 12.

It further states that by virtue of his Mission Order, the accused was being issued “Government-owned firearms and radio for use in the performance of (his) official duties”.

5.     Annex “E”. – xxxAFP ACKNOWLEDGMENT RECEIPT FOR EQUIPMENT (MEMORANDUM RECEIPT), with Serial No. xxx, valid up to xxx, covering a firearm and ammunitions described as follows: One (1) unit Pistol, Cal. .45, xxx, with Serial No. xxx; Three (3) Units Magazines for Cal. .45  -- the same to be possessed, carried outside of residence, and used by the accused as xxx in the performance of his official duties.

The firearm and ammunitions were issued on xxx by  xxx, responsible xxx Officer, to the accused Xxx as a xxx, who received the same also on xxx.

IV.            DISCUSSION

A.   The accused respectfully submits that the prosecution evidence has failed to prove the guilt of the accused beyond reasonable doubt and that, with all due respect, the Honorable Court has grossly misappreciated and misinterpreted the evidence on record resulting in a grave miscarriage of justice.

The Information, dated xxx, charged the accused with “violation of P.D. No. 1866, as amended by R.A. No. 8294”, i.e., “possess(ing), (having) custody (of), and control(ling)” the subject firearm and ammunitions, “without justifiable cause”, and “without the necessary license or permit to possess the same”.     

The incident that gave rise to the instant case was an NBI “entrapment operation” on xxx.

As of such date (xxx), the accused had an existing license for his subject firearm, as confirmed by a CERTIFICATION, dated xxx, issued by the PNP Firearms and Explosive Office, which was presented to the Court by xxx, which Certification showed that the accused was a “x x x licensed /registered firearm holder of a Pistol, Caliber . 45, Xxx,  with Serial No. xxx, issued/approved on xxx, with expiry date xxx x x x.” (Decision, page 2, par. 5).

The license/permit of the accused was issued/approved on xxx, or three (3) days before the entrapment operation.

The original license/permit had an expiry date of xxx.

The accused had actually shown to the arresting NBI agents his expired license/permit when he was arrested on xxx. He had later referred them to the FEO Certification, supra, showing that he was a licensed firearm owner/holder, the same having been subsequently issued/approved (renewed) on xxx. It was unfortunate, though, that his FEO-issued license/permit was not in his possession as of the time of his arrest on xxx. However, he had subsequently presented the same after the preliminary investigation. (Decision, page 4, par. 2).

His minor inadvertence, in good faith, i.e., his innocent act of forgetting to bring with him the renewed license/permit as of the time of the entrapment on xxx, should not be taken against him as to deprive him of his ultimate freedom and liberty as a citizen, considering that he had subsequently produced and explained the same to the authorities to prove the fact that his firearm was duly licensed as of the time of his arrest on xxx.

What is clear, though, was that on xxx, or three (3) days before the arrest of the accused on xxx, his license/permit had already been officially issued by the FEO, although the said renewed license/permit was still at the FEO records/release section as of xxx, which explains why the accused, at the time of his arrest on xxx, was carrying only an expired license/permit. 

The evidence shows that the actual Firearm License Card was issued by the FEO on xxx, which was the also entrapment date, while the actual renewal of the license/permit actually took place on xxx, or three (3) days earlier.

There is no prosecution evidence that contradicts such fact. 

With all due respect, the Court grossly misinterpreted the difference between xxx (License renewal date) and xxx (date of the License Card) as an inculpating proof of guilt, which was erroneous, considering that there is always a lag time between the License papers renewal process and the printing and issuance process for the License Card itself.

The printing and issuance of the Card itself follows only after the processing and approval of the renewal of the License document had been completed.

Such minor bureaucratic and administrative delay on the part of the FEO is fair and reasonable considering the thousands of applications for License renewal and the printing of thousands of License Cards that the FEO has to attend to on a daily basis.

Besides, the accused had no control over the internal procedures and internal rules and policies of the FEO as an ordinary citizen.

Such minor and reasonable delay (i.e., the difference between the date of the License renewal, which was xxx, and the date of the actual [subsequent] issuance of the License Card itself, which was xxx) should not be taken against the accused.    

The Certification of the FEO as testified to by FEO PSI xxx should be interpreted as an exculpating evidence to support the innocence of the accused in relation to the offense charged in the Information, notwithstanding the minor doubts that the aforecited delay and other related matters might have created in the mind of the Court, for the substance and spirit of Criminal Law is one of LIBERALITY in favor of the accused in case of the existence of a reasonable doubt.

A.  – 1. Jurisprudence. - In other words, when there is equilibrium in the evidence presented by both sides, the CONSTITUTIONAL PRESUMPTIOM OF INNOCENCE should tilt the balance of the scale in favor of the acquittal of the accused, for, in such a situation, the offense has not been proven beyond reasonable doubt, which is the quantum of evidence required to convict an accused.

Suspicion alone is insufficient, the required quantum of evidence being proof beyond reasonable doubt. [People v. Gargar, 300 SCRA 542 (1998). See also: En Banc, Justice Mendoza, THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FIDEL ABRENICA CUBCUBIN, JR., accused-appellant, G.R. No. 136267.  July 10, 2001].

Only by proof beyond reasonable doubt, which requires moral certainty, may the presumption of innocence be overcome (People vs. Custodio, 47 SCRA 289 [ 1972]).

Moral certainty has been defined as "a certainty that convinces and satisfies the reason and conscience of those who are to act upon it" (People vs. Lavarias, 23 SCRA 1301 [1967]).

Absent the moral certainty that accused-appellant caused the death of the victim, acquittal perforce follows.

Proof beyond reasonable doubt is needed to overcome the presumption of Innocence (People vs. Reyes, 60 SCRA 126 [1974]).

Accused-appellant’s guilt must be proved beyond reasonable doubt (People vs. Maliwanag, 58 SCRA 323 [ 1974]); otherwise, the Court would be left without any other recourse but to rule for acquittal. Courts should be guided by the principle that it would be better to set free ten men who might be probably guilty of the crime charged than to convict one innocent man for a crime he did not commit. [En Banc, Melo, People v. Tagudar [G.R. No. 130588. June 8, 2000].

                                                                     

B.    Gross Negligence of the Former Defense Counsel. - The accused respectfully submits that his former defense counsel, Atty. Xxx Xxx, had committed gross negligence resulting in a grave miscarriage of justice and in a grave violation of the fundamental constitutional rights of the accused to: (a) procedural and substantive due process of law, (b) to equal protection of the law, and (c) to competent and independent counsel  -- all of which warrants a RE-OPENING of the case to enable the accused, in the interest of truth and justice, to present crucial exculpating evidence discussed hereinbelow, which evidence, if admitted, would result in his ACQUITTAL.

The gross negligence and failure of the former counsel for the accused to introduce and present the evidence referred to in Pars.  3.3., supra, has resulted in a grave miscarriage of justice and in a grave violation of the fundamental constitutional rights of the accused to: (a) procedural and substantive due process of law, (b) to equal protection of the law, and (c) to competent and independent counsel  -- all of which warrants a RE-OPENING of the case to enable the accused, in the interest of truth and justice, to present crucial exculpating evidence discussed hereinbelow, which evidence, if admitted, would result in his ACQUITTAL, to wit:

X x x.

B-1. JURISPRUDENCE. - The accused is aware of the jurisprudence that, as a general rule, “a client is bound by the mistakes of his counsel”. (Villa Rhecar Bus vs. Dela Cruz, No. L-78936, January 7, 1988, 157 SCRA 13). 

However, jurisprudence allows an exception, that it, “x x x when the negligence of the counsel is so gross, reckless and inexcusable that the client is deprived of his day in court”. 

In such instance, “the remedy is to reopen the case and allow the party who was denied his day in court to adduce evidence”. (Producers Bank of the Philippines vs. Court of Appeals, G.R. No. 126620, April 17, 2002, 381 SCRA 185, 192). 

Further, in this regard, the accused hereby quotes extensively the ruling of the Supreme Court in the case of CALLANGAN VS. PEOPLE, G.R. NO. 153414, , June 27, 2006,where it held, inter alia, that: “The rule that the negligence of counsel binds the client admits of exceptions:

(1) where reckless or gross negligence of counsel deprives the client of due process of law,

(2) when its application will result in outright deprivation of the client’s liberty or property or

 (3) where the interests of justice so require.”

THUS:

“x x x.

However, in view of the circumstances of this case, outright deprivation of liberty will be the consequence of petitioner’s criminal conviction based solely on the evidence for the prosecution. Thus, to prevent a miscarriage of justice and to give meaning to the due process clause of the Constitution, the Court deems it wise to allow petitioner to present evidence in her defense.

The rule that the negligence of counsel binds the client admits of exceptions. The recognized exceptions are: (1) where reckless or gross negligence of counsel deprives the client of due process of law, (2) when its application will result in outright deprivation of the client’s liberty or property or (3) where the interests of justice so require. In such cases, courts must step in and accord relief to a party-litigant.

The omissions of petitioner’s counsel amounted to an abandonment or total disregard of her case. They show conscious indifference to or utter disregard of the possible repercussions to his client. Thus, the chronic inaction of petitioner’s counsel on important incidents and stages of the criminal proceedings constituted gross negligence.  

X x x.

In criminal cases, the right of the accused to be assisted by counsel is immutable. Otherwise, there will be a grave denial of due process. The right to counsel proceeds from the fundamental principle of due process which basically means that a person must be heard before being condemned.

In People v. Ferrer, the essence of the right to counsel was enunciated:

The right to counsel means that the accused is amply accorded legal assistance extended by a counsel who commits himself to the cause for the defense and acts accordingly. The right assumes an active involvement by the lawyer in the proceedings, particularly at the trial of the case, his bearing constantly in mind of the basic rights of the accused, his being well-versed on the case, and his knowing the fundamental procedures, essential laws and existing jurisprudence. The right of an accused to counsel finds substance in the performance by the lawyer of his sworn duty of fidelity to his client. Tersely put, it means an efficient and truly decisive legal assistance and not a simple perfunctory representation. (Emphasis supplied)

        Petitioner was accorded grossly insufficient legal assistance by a counsel who did not devote himself to the defense of her cause. Counsel’s utter lack of action after the prosecution rested its case revealed an extreme shortcoming on his part. Such inaction definitely proved infidelity to and abandonment of petitioner’s cause.

        Considering that this case involved personal liberty, the gross negligence of counsel shocks our sense of justice. It should not be allowed to prejudice petitioner’s constitutional right to be heard. The Court’s pronouncement in Reyes v. Court of Appeals, applies strongly in this case:

The judicial conscience certainly cannot rest easy on a conviction based solely on the evidence of the prosecution just because the presentation of the defense evidence had been barred by technicality. Rigid application of rules must yield to the duty of

courts to render justice where justice is due – to secure to every individual all possible legal means to prove his innocence of a crime with which he or she might be charged.

Otherwise, the likelihood of convicting and punishing an innocent man and of inflicting a serious injustice on him becomes great.

In Reyes, the Court, after finding that the conviction of Zenaida Reyes had been caused by the gross negligence of her counsel, reconsidered its earlier resolution which denied the petition for review of the decision of the Court of Appeals affirming her conviction. The case was remanded to the trial court for the purpose of allowing Reyes to present evidence in her defense.

In De Guzman v. Sandiganbayan, the Court also set aside its decision affirming Domingo de Guzman’s conviction by the Sandiganbayan, after being shown that his conviction had been brought about by his counsel’s gross ignorance of law and procedure. The case was then ordered remanded to the Sandiganbayan for reception and appreciation of petitioner’s evidence.

Therefore, in consonance with the demands of justice and to prevent any outright deprivation of liberty, the Court deems it best to give petitioner a chance to present evidence in her defense. The case should be remanded to the MTC for acceptance and appraisal of petitioner’s evidence.

Petitioner does not seek her exoneration but the opportunity to present evidence in her defense. Considering the gross negligence of her counsel on whom she reposed her trust to protect her rights, justice demands that she be given that chance.

In sum, it is better to allow petitioner another occasion to present her evidence than to let her conviction stand based solely on the evidence of the prosecution. In accordance with Rule 121, Section 6 of the Rules of Court, the evidence of the prosecution shall be understood preserved, subject to the right of the prosecution to supplement it and/or to rebut the evidence which petitioner may present.

X x x.”

C.    RULES OF COURT. – Sec. 24, Rule 119 of the Rules of Criminal Procedure provides that “at any time before finality of the judgment of conviction, the judge may, motu proprio or upon motion, with hearing in either case, reopen the proceedings to avoid a miscarriage of justice”.

The proceedings shall be terminated “within thirty (30) days from the order granting it.”

In the case at bar, the decision therein has not yet become final and executory as of the filing of this omnibus motion.

                         

V.               RELIEF

WHEREFORE, premises considered, it is respectfully prayed that the Decision, dated xxx and promulgated on xxx, be RECONSIDERED AND SET ASIDE and a new one be entered ACQUITTING the accused; or, in the alternative, that an order be issued RE-OPENING the trial of the instant case, as explained above, to enable the accused to introduce crucial exculpating evidence that his former counsel had grossly neglected to introduce.

     Las Pinas City, xx x.

LASERNA CUEVA-MERCADER

LAW OFFICES

Counsel for Accused Xxx B. Xxx

Unit 15, Star Arcade, CV Starr Ave.

Philamlife Village, Las Pinas City 1740

Tel. Nos. 8725443 & 8462539

MANUEL LASERNA JR.

Roll No. 33640, 4/27/85

IBP Lifetime Member No. 1907

IBP Leyte Chapter

MCLE Compliance No. IV-1326, 2/3/11

PTR No. 10448581, 1/3/13, Las Pinas

NOTICE OF HEARING

1.      Branch Clerk of Court

RTC 111

Pasay City

2.    Office of the City Prosecutor

Pasay City

3.    Atty. Xxx

Private Prosecutor

Mabuhay:

The undersigned defense counsel shall present the foregoing omnibus motion to the Honorable Court, for its kind consideration and approval, on xxx, xxx, 8:30 AM (motion day). Thank you.

                                                              Manuel J. Laserna Jr.

Cc:

OFFICE OF THE CITY PROSECUTOR

Hall of Justice

Pasay City Hall, FB Harrison St.

Pasay City

     (personal delivery)

Atty. xxx

Private Prosecutor

xxx

     Reg. Rec. No. ________________

     Date ________________ P.O. ___________

EXPLANATION

     A copy of this omnibus motion is served on the private prosecutor via registered mail due to the distance of his law office address in x x x City and the due to the urgency of filing the same.

                                                     Manuel J. Laserna Jr. 

x x x."

Petition for declaration of nullity of marriage; Art. 36, Family Code, psychological incapacity of both spouses.

For legal research purposes of our readers, below is a copy of a petition for declaration of nullity of marriage under Art. 36, Family Code (based on the psychological incapacity of both spouses, per the report of a clinical psychologist) that our law office has filed with a trial court in Metro Manila.

“P E T I T I O N

            PETITIONER  x x x, by counsel, respectfully states:

1.       Petitioner is xxx years old, born on xxx,  old and a resident of xxx City.elo

Petitioner is a graduate of Bachelor of Science in xxx from the xxx.  He had completed various relevant training in his field that catapulted him to the coveted position of Chief Mate at a very young age.  Petitioner was the ship captain at the age of xxx years of the xxx, where he took of his training in his field.

Attached as Annex “A” hereof is a copy of the Bio-Data of the petitioner for ready reference.

2.       The respondent xxx is xxx years old, born on xxx, and a resident of xxx City, where she may be served with summons for the instant case.       

Respondent finished xxx at a school in xxx.  While petitioner knew that respondent was employed with xxx from xxx to xxx, he has no knowledge of respondent’s present employment, if any.

3.       Petitioner has been employed at the xxx Corporation from xxx until present. He was a Deck Cadet from xxx to xxx; Third Mate from xxx to xxx; Third/Second Mate from xxx to xxx; Second Mate / Chief Mate from xxx to xxx; and Chief Mate from xxx to xxx.  He holds the record of being the youngest ship captain at a young age of xxx years old of the xxx Corporation.

4.      Petitioner had a son out of wedlock, during his bachelor years. The son is xxx, xxx years old, born on xxx, xxx grade pupil. Petitioner has been the one providing financial support to xxx through remittances deposited in a bank.

Attached as Annex “B” is a copy of the Certificate of Live Birth of xxx. 

5.      Petitioner and respondent first met sometime in xxx. They initially became text mates from xxx to xxx of that year when one of Petitioner’s college classmates gave him Respondent’s mobile number. However, they eventually lost contact starting xxx because Petitioner had to undergo a seaman-training course at the xxx Institute xxx where mobile phones are not allowed while in the duration of the training. By xxx, Petitioner was able to successfully finish his training course and resumed his communication with the Respondent. In the same month of xxx, Petitioner and respondent met for the very first time in xxx and engaged in pre-marital sex on the same day.

6.      Since then, petitioner and respondent saw each other once every week. They were already sweethearts when petitioner boarded a vessel as Desk Cadet in xxx for his first work contract. Their relationship continued via long distance, with constant calls and emails. In xxx, petitioner had his vacation in the Philippines. It was then when he introduced the respondent to his family. The latter warmly accepted the respondent.

7.      In xxx, respondent started to stay at the house of the petitioner, with petitioner’s parents and siblings.  Petitioner’s siblings started to notice that petitioner and respondent often engaged in verbal arguments over petty matters. They would shout at each other and no one would want to back off. Petitioner expected the respondent to give in during fights but respondent would even get angrier than him, not wanting to lower her voice.

8.     Moreover, Petitioner discovered that Respondent is the dominant and controlling type. She wanted things her way and would be very angry when her wants are not granted. Petitioner realized that he and respondent are incompatible to each other. He already wanted to separate from her but he could not do so when she broke the news that she was already pregnant with their child. 

9.      Petitioner and respondent eventually got marriage to each other on xxx, despite the uncertainties already entertained in the mind of the petitioner, because petitioner had asked the permission of the respondent’s mother for the said marriage. After the nuptial, the couple continued to establish their dwelling place at the house of Petitioner’s parents.

Attached as Annex “C” hereof is a copy of the 

Certificate of Marriage of the parties.

10.  While living together as husband and wife, petitioner found out that respondent was a very jealous and suspicious woman. Whenever Petitioner arrived home from his training, Respondent would check his belongings, especially his mobile phone, for any evidence of a probable infidelity on his part. She suspected him of having an illicit affair with his former girlfriends, particularly with the one whom he had sired a child out of wedlock. While petitioner admitted that he had a son prior to meeting the respondent and he had flings before; he no longer engaged in such flings after his wedding with the respondent. However, respondent did not believe the petitioner and she grew all the more suspicious of his actions, accusing him of infidelity even if she has no concrete basis at all.

11.     Despite the fact that their marital relationship was already in shambles as they continue to engage in heated argumentation and fights,  the supposed child of the parties, xxx was born on xxx.

Attached as Annex “D” hereof is a copy of the Certificate of Live Birth of xxx.

12.  Petitioner observed the distance that developed

between him and xxx.  At first his attributed the said distance due to his overseas employment.  Petitioner was often told that the features of xxx are starkly different from his.  Finally, he decided to subject xxx and himself to DNA to ascertain his paternity of the said child. 

The differences in the facial features of the petitioner  and Xxx Xxx are readily visible in the attached  picture of the petitioner and xxx taken  recently in xxx (Annex “E” hereof).

13.   Much to the petitioner’s dismay, the DNA result

               conducted on Xxx Xxx and himself shows that

“xxx is not the biological father of xxx”.

      Attached as Annex “F” hereof is a copy of the 

   abovereferred DNA Result conducted by the xxx on xxx.

14.  Prior to the birth of xxx, petitioner again

boarded a vessel with a position of Third Mate from xxx to xxx for his second work contract. This time, respondent started to nag him about financial support to the point that his work on board was already being affected. She demanded more money from the petitioner and was questioning the support he is giving for his siblings’ education. Petitioner argued that prior to getting married; he had already cleared this with the respondent. He told her that he will still support his siblings who sacrificed their education for him to graduate first so that he can have a job. Supporting them was his way to pay them back for their sacrifices. However, respondent took this negatively and would demand more financial support even if petitioner was also giving to her family whenever needed. Respondent would even pick up a fight with Petitioner’s youngest sibling with regards the financial remittances. Despite the objection of the respondent, petitioner continued to finance the education of his siblings to compensate them for their sacrifices they underwent for his education.

15.   Petitioner has been regularly sending adequate

amount of monetary remittances to the respondent. His monthly financial allocations were initially amounting to PHP xxx, until it increased to PHP xxx. At present, he is sending PHP xxx to the respondent and xxx on a monthly basis. Despite these amounts, respondent is not yet satisfied and even demanded more. She once told the Petitioner that she must receive PHP xxxx when he is a third mate, PHP xxx as second mate, PHP xxx as chief mate and PHP xxx as captain.

16.  When Petitioner boarded the vessel with a position

of Third Mate, promoted to Second Mate, from xxx to xxx,  for his third work contract, Respondent transferred location to xxx because she did not want to live with his parents and siblings. In the same year, respondent asked PHP xxx from the petitioner supposedly for the heart operation of xxx. The following year, she asked PHP xxx from him for follow-up operation of the child xxx. Petitioner had incurred debts just to raise such amount in order to improve the health condition of the child xxx. Later on, however, Petitioner inquired at the xxx Hospital with regards the child’s record and was shocked to learn that no operations were performed for the child. In fact, the child has no record of consultation on the said hospital. It was then when Petitioner started to ask the respondent where his hard-earned income was spent on through the years.

17. By hindsight, petitioner feels having gravely

victimized by the respondent thru huge faked hospitalizations of the child xxx, who was subsequently tested as not belonging to the petitioner.

18.  When Petitioner took his vacation in the Philippines

in xxx, he no longer stayed with the respondent in xxx.  They were already separated during this time although he still visited the child xxx in xxx whenever he had no training in the shipping company for his second mate examination. During his visits, the estranged couple still engaged in sexual intercourse.

19.  In xxx  Petitioner boarded a vessel as Second Mate, promoted to Chief Mate, for his fourth work contract. He then met another woman, named xxx and engaged in an illicit affair with her. The following year, xxx, Petitioner and xxx sired a child named xxx, to whom the petitioner also extends financial support as his child.

20. Petitioner returned for a vacation in the Philippines

in xxx. Petitioner and Respondent were able

to find ways to reconcile to the marriage between the parties another chance. He thought that the latter would change for the better but he was just disappointed at her. Petitioner was then reviewing for his examination as chief mate while Respondent was questioning the huge amounts he was paying for the review. She was also demanding so much time from him amidst the review. To address the complaint of the respondent, petitioner  asked her to leave Xxx and stay with him at his  parents’ abode so that they could be together more often.

21.  However, their relationship  became worse than

ever, as their incompatibilities surfaced out again. They engaged all the more in heated arguments and fights even at the presence of his parents and siblings. Petitioner was unable to sleep due to the extended quarrels with the respondent and he attended his review classes without sleep.  Petitioner lack   peace of mind and concentration he needed for his review. He temporarily found solace in the company of his male friends, as they engaged in drinking sessions every night, every after review for the chief mate examination. When he arrived home, he was pestered by the angry respondent who continually nagged him.

22.       Petitioner expected respondent to be caring and thoughtful towards him, but she failed to look after Petitioner’s welfare. She was cold and apathetic towards his concerns.  Respondent could not even prepare merienda for the petitioner and would require him to prepare his own merienda. Moreover, respondent continued to be suspicious of him, constantly checking his belongings upon arrival from his review classes. Respondent  was selfish, jealous and indifferent.  Respondent never cared for the petitioner and his needs.

22. In the early part of xxx, the couple

again engaged in heated fights when respondent refused to allow the petitioner to attend the wake of his grandmother in xxx. Petitioner could not bring respondent along with him in the wake because his family and relatives strongly disapproved of her.

23. During heated fights, Respondent would call her

parents and sister in xxx, crying and seeking for sympathy, which the petitioner hated.

24. Their marital fights became all the more frequent

and intense until Petitioner again boarded his vessel as Chief Mate for the fifth time on xxx to xxx.

25.  While on board, Respondent created a fake

Facebook account of the Petitioner and added most of his friends, including his co-workers in the vessel. Through the said fake account, Respondent was communicating with his co-workers, telling them that she and her child was living in a squatter’s area and are already settling for rock salt as their meals (nagdidildil ng asin). Petitioner was infuriated upon learning this because he was certain that his financial allocations for the respondent and the child xxx never waned. He still sends them monetary support on a monthly basis. Petitioner further gathered that respondent also accused his parents and siblings of sending her death threats. This became the last straw of their relationship and petitioner finally decided that it is all over.

26.  Petitioner believes that their relationship is already

beyond repair. Petitioner did everything he could to save his marriage with the respondent, however, their incompatibility along with respondent’s pervasively flawed character had made it impossible to redeem the relationship. Petitioner narrated It was in this premise that Petitioner finally decided to separate from the respondent; hence the filing of this annulment case.

27.   The recent finding by the petitioner that the child

xxx is NOT his biological son further

strengthened Petitioner’s desire to severe any remaining ties he has with the respondent who had lied to him all these years that they were together.   

28. The parties do not own any properties, whether real or

                        personal.

29. The petitioner has engaged the services of the undersigned

counsel, Laserna Cueva-Mercader & Associates Law Offices for the preparation, filing and prosecution of the instant case.

30.  The petitioner had engaged the services of Dr. xxx, Clinical Psychologist, for the determination of psychological evaluation of both parties, who will be presented as an expert  witness in support of the instant petition.

Attached is Annex “G”  is a copy of the Curriculum Vitae of Dr. xxx, Clinical Psychologist.

31.   The psychological tests administered by Dr. xxx

on the petitioner were: Revised Beta Examination II;

Bender Visual Motor Gestalt Test; Draw A Person Test;  Rorschach Psychodiagnostic Test ; Sach’s Sentence  Completion Test Minnesota Multiphasic Personality  Inventory I; Hand Test; and Self Analysis.

32. Based on the results of the psychological tests and

interview on the parties and corroborator as well as based on the background data gathered and marital history of the parties, the findings of Dr. xxx are reproduced in the succeeding paragraphs hereinbelow, culled from the Report of Dr. xxx, M. A., xxx, attached as Annex “H” hereof, to wit:

“After a thorough analysis of the data presented, it is revealed that the eventual shattering of the conjugal partnership between xxx and xxx is brought forth by the psychological incapacitation of the Petitioner and Respondent. They were both governed by a debilitating psychological conditions, which made them inept to be actively part of a relationship where mutuality is founded and required. Their attitude and behavior are all self-centered in nature that both their strivings are largely focused to cater their pathological needs and demands”.

33. The reported behavioral manifestations of the petitioner

satisfies the criteria of a “PASSIVE-AGGRESSIVE PERSONALITY DISORDER COMORBID ANTISOCIAL PERSONALITY DISORDER”. This personality disorder caused the petitioner to be psychologically incapacitated to comply with the essential obligations of marriage.

34.  Dr. xxx characterized the psychological incapacitation of

 the petitioner as follows:

Petitioner is regarded as an egocentric and self-centered person who upholds a sense of entitlement. This being the case, he only thinks of himself and anything that is in favor of him. He looked down on others, degrading another person’s capacity and worth, perceiving them on a lower stature than he is. During argumentations, Petitioner would often tell the Respondent, “ako ang matalino, top notcher ako e…” In return, he feels superior and indomitable when these are just means to cover up deep-seated inadequacies and crippling anxiety. Petitioner also has mixed-up priorities in life. To him, his parents and siblings are more important than his wife and child. Respondent narrated, “tinatakot niya kaming mag-ina na di daw niya kami susustentuhan, kaya daw niya kaming kalimutan…mas importante sa kaniya ang kasikatan niya sa family niya…mas priority niya ang family niya kaysa sa amin.”

Petitioner is described as an emotionally weak-willed man who could not directly assert himself to the circumstances and people around him. From the very start, he has reservations about marrying Respondent but still pursued with the wedding when he could have cancelled the ceremony in the first place. Petitioner narrated, “tinuloy ko po ang kasal kahit ayaw ko na sana, naisip ko na gusto ko na iatras nag kasal…pero dahil nakapagpaalam na sa mga magulang namin, itinuloy na rin.” On most occasions while inside the marriage, Petitioner was not able to stand as the real man of the family as he lacks the ability to express power and dominion over circumstances. He allowed his parents and siblings to dictate the terms to him. Instead of being heard as the man, his decisions are typically without authority and this made him truly incapable of leading the family. He is always unsure and filled with feelings of inadequacy.

Petitioner is depicted as a sullen and argumentative person. He is always on the defensive side of things so much so that his marital relationship has been bombarded with heated disputes and fights. Petitioner is described as “madaling magalit, madaldal kapag galit, has a bad temper.” On the onset, he would succumb to existing norms and standards as these would augment his subjugated disposition and would probably add quality to his depleted self concept. However, he internally broods hostile and oppositional feelings which further pave way to his aggressive tendencies and impulsive predilection when provoked. He lacked adequate control of his emotions and would direct them towards the Respondent and their child. During marital disputes, Petitioner was expecting the Respondent to give in during fights but Respondent would even get angrier than him, not wanting to lower her voice. Petitioner narrated, “pag galit ako, nasabay siya sa init ng ulo, di siya papatalo sa akin.”

Petitioner sees himself as misunderstood and unappreciated, ill-fated and demeaned by others. He feels victimized in his situation without seeing where his shortcomings lie and his own share of negative contributions why his situation come on such ending and unfortunate condition. Instead, he just believes that others are seemingly unfair and are taking advantage of him. Petitioner is illustrated as “masyadong mabait, madaling mapaniwala, masyadong maawain…” Negativistic as he is, it has always been his way of thinking that other people never saw his sacrifices. He thinks that he is receiving lesser appreciation than what he deserves, and the discontented self-image that he has is blamed towards the way other people treats him. This makes him all the more embittered, disgruntled, and disillusioned in their relationship.

Petitioner manifested vacillating emotional condition rendering him unstable to display adequate reactions to relational stimulations. He dithers from being the acquiescent and contrite type to the impulsive and hostile type. He was never consistent with the attitude and behavior he has shown towards the Respondent. At one point, he would be in his passive stance. Petitioner and Respondent saw and communicated with each other last xxx. However, during this time, Petitioner told Respondent, “hindi po niya ipapa-annul ang kasal namin dahil mahal daw niya ako…” At another point, he would eventually feel angry to the extent of threatening the Respondent, even her life. In xxx, Petitioner blackmailed the Respondent by telling her that he will spread out her nude photos in his laptop. Respondent narrated, “sa totoo lang po ma’am, natatakot ako sa mga banta niya dahil alam kong kaya niyang gawin iyon.” Respondent narrated, “I can prove his text messages na papatayin niya ako, papatayin niya kami…”

Petitioner is pictured as a man who takes his commitments lightly. He is emotionally elusive when it comes to his marital difficulties so much so that he tends to act passively just to preserve emotional attachment. He may appear conforming but inwardly he is filled with scorn and contempt for his own incapacity which he often expressed outwardly by way of passive-aggression and procrastination. As a result, he engaged in an illicit affair with another woman. In xxx, Petitioner boarded a vessel for his fourth work contract. He then met another woman, named xxx, and engaged in an illicit affair with her. The following year, xxx, Petitioner and xxx sired a child.

Petitioner lacked adequate insight towards his pathological condition. This being the case, he failed to evaluate the wrongness of his actions and was unable to profit from experience. He utilized rationalization mechanism and offers alibis to place himself in the best possible light, despite his evident shortcomings or failures. He would always put the blame on the Respondent while defending his impulsive and self-centered ways by making justifications of his decisions and actions. He would even highlight his pathetic condition, being the one who passively honors his financial obligations, which apparently places him in a positive spotlight. However, monetary allocations are only part of his responsibilities as a husband. He may argue that he was making it big and successful in his career, but he was actually using this as his scapegoat, allowing his marital relationship to suffer and emotional bond to really flourish. He was blaming the Respondent, the situation, and other people, but never himself.

The personality disorder of the petitioner is a by-product of the unfavorable experiences and negative exposures he had during his childhood and adolescent years. On those crucial times, he was just on his way of establishing the very core of his person and was just building the permanent foundation of his personality, serving as the grounds of his current maladaptive behaviors. Growing up, Petitioner had been accustomed to obey his parents, along with existing house rules. This being his childhood conditioning, he had learned the value of obedience and compliance so that he can be accepted and approved by his perceived society. He desperately tried hard to prove his worth and this practice of pleasing people made him to repress his own feelings especially if these are not incongruent with the people he chose to please.

Alongside, Petitioner’s compelling self-interests and needs become stronger as these gain much control of his actions and decisions. He grew impulsive when it comes to the immediate gratification of his goals. He became too preoccupied of his own pleasures that he demanded other people to cater to his every need. His increasing self-orientation clashed with his debilitating desire to perform in order to be accepted by his immediate milieu. These are poorly integrated into a passive and self-centered person. Though he may put up a show of efficiency and obedience, his emotion is deemed lacking in depth thereby sabotaging his relationships.

As no one was there to curb his defective ways, and help him alter his growing negativism narcissism during childhood until he entered adulthood, all his erroneous insight and faulty way of perceiving things made the reference of his current maladaptive behavioral pattern. He is further found to have no ample consciousness of his defective behavior which made him laid up to properly function as a responsible, loving, caring, protective, faithful, trustworthy and understanding husband”.

35.  The reported behavioral manifestations of the respondent

satisfies the criteria of a “HISTRIONIC PERSONALITY DISORDER WITH UNDERLYING ANTISOCIAL FEATURES”. This personality disorder caused the respondent to be psychologically incapacitated to comply with the essential obligations of marriage.

36.  Dr. Xxx characterized the psychological incapacitation of

 the respondent as follows:

“Respondent has a striking sense of entitlement. She is demanding of immediate compliance to her desires and would want petitioner to meet her expectations. She always wanted to feel being treated in a way where she plays the upper hand in the relationship and would still insist on what she wants even if it is already impractical. She always wanted the attention of the petitioner. She demands for his time and money and requires that she be immediately appeased though she knew that it impossible to do so. If her wishes are not heeded, she easily bombards the Petitioner with unnecessary and pointless naggings that are not helpful in any way. Petitioner discovered that Respondent is the dominant and controlling type. She wanted things her way and would be very angry when her wants are not granted. Petitioner narrated, “pag galit ako, lalo niya ako gagalitin, sasabay siya, kaya ko na lang mananahimik, pakumbaba na lang ako.” It was then when Petitioner realized that he and Respondent are incompatible to each other. He already wanted to separate from her but he could not do so when she broke the news that she is already pregnant with their child.

 

The respondent’s way of interaction is often characterized by seductive and provocative behaviors to elicit the response she wanted from man. With her interpersonally attention-seeking ways, she can be in her flirtatious, vain and exhibitionistic approach to others especially the Petitioner.  They engaged in sexual acts not long after the met each other personally. She would usually employ dramatic tactics and emotional trap to manipulate the Petitioner into doing his bidding. She knew that Petitioner would not be able to stand knowing that their son are ailing, thus by all means she used it against him to incur money. On the same year, Respondent asked PHP 300,000 from the Petitioner apparently for their child’s heart operation. The following year, she asked PHP 400,000 from him for follow-up operation of their child. Petitioner had incurred debts just to raise such amount in order to improve the health condition of their child. Later on, however, Petitioner inquired at the Baguio Hospital with regards the child’s record and was shocked to learn that no operations were performed for the child.    

She is an egocentric and pleasure oriented person. She is selfish and only thinks of her own comfort and happiness, even at the expense of her marriage and family. She is reluctant to give up selfish indulgence and failed to be responsible enough to attend to her duties. Arguments would ensue since she wanted every dime of Petitioner’s income though she knew that he also had responsibilities with his siblings. She is unwilling to share and questions the Petitioner if he ever gives support to his family. Yet Petitioner would also be disappointed since she never saved any remittances that he sends to her. She demanded more money from the Petitioner and was questioning the support he is giving for his siblings’ education. Petitioner argued that prior to getting married; he had already cleared this with the Respondent. He told her that he will still support his siblings who sacrificed their education for him to graduate first so that he can have a job. Supporting them was his way to pay them back for their sacrifices. However, Respondent took this negatively and would demand more financial support even if Petitioner was also giving to her family whenever needed. Respondent would even pick up a fight with Petitioner’s youngest sibling with regards the financial remittances. Petitioner narrated, “dahil lang sa biruan, nagkakaaway sila ng kapatid kong bunso, pikon kasi siya (respondent).” Despite Respondent’s protests, Petitioner continued to finance the education of his siblings.

  

She lacks empathy and is unwilling

to consider the feelings of other people especially the Petitioner. She utilizes rationalization mechanism to justify her own transgression and blames everything to the petitioner. Her blindness of her own fault made changes impossible in the marriage since she is not inclined to wear the shoes of the Petitioner. She demands, carps and argues just to get what she wants without being sensitive that Petitioner has his own needs too. She wanted to come in sight as the victim just to make light of her own misdeeds in the marriage wherein fact it was her poor decisions that has put her in the position.  

She is deceitful woman who is not fettered by any moral obligation to create lies for her personal gains or profit. Always aiming to alleviate herself, she lied regarding the identity of her child and passed it on as the son of the Petitioner to trap him into marrying her. She never cared for the well-being of her son or the Petitioner knowing that the scores of lies she created will affect both of them. In the past years that they were together, she kept to herself the knowledge that Petitioner is not the biological father of her son yet she asserted herself like a fishmonger wife’s who always demanded for support.   

The personality aberration that respondent is suffering from has its initial course during the crucial developmental phase in her life—childhood and adolescent years—where negative experiences and child-rearing practices severely affects the personality development. In the case of the Respondent, she grew up without a father figure since her parents separated when she was a baby and he never communicated with them again after he left them. Looking at the picture, the young respondent has developed a strong sense of insecurity and inadequacy in absence of fatherly affection that she needs. Hence, she grew up compensating for this insecurity by engaging in relationship with men by being seductive and provocative in the hopes that they could fill the void that she has inside only to be always disappointed since they always falls short to her high expectation. She never realized that they would never fulfill or quench the emotional insecurity that she has.

 Along with this is the lack of fatherly affection comes the lack of adequate discipline and guidance from her mother who was lenient in her ways with them especially the respondent. Albeit that they were not financially well off, her mother indulges her whim and allows her so much freedom to do what she wants. Punishment and sufficient disciplinary measures were not provided to her leaving the young respondent with the defective notion that she has the liberty to do what she wants. Later on, with the excess freedom given to her, she has come to believed that she could use anyone at her own disposal, without care for his or her feelings and emotions. Since she grew up perceiving herself so deprived of love, she compensates later on by asserting her bloated self-esteem to people. She became vain, materialistic and demanding as her way to appease whatever ineptitude she has. Enjoying a rather unfettered life due to the absence of effective caretakers, she became dominant and demanding, as well as stubborn in insisting for what she wants no matter how impractical it could be. Respondent did not learn to be submissive, that she would do things without giving consideration on how it might affect others or her relationships.

With this, due to the absence of proper guidance, and effective disciplinary means, respondent grew up embracing these maladaptive responses and turning them as the pillars of her personality”.

37.  Dr. xxx concluded that the respective

psychological incapacities of the petitioner and respondent  speak of antecedence because such “flawed personality began before they entered marriage and manifested only thereon”.

38.  Dr. xxx described  the respective psychological

incapacities of the petitioner and the respondent as “GRAVE, PERVASIVE, SERIOUS, SEVERE, and PERMANENT rendering it totally beyond repaid despite available treatments and intervention considering the severity of petitioner’s and respondent’s aberrant psychological conditions, which makes reconciliation very difficult and impossible”.

39.  Quoted hereunder is the pertinent part of the

                        Report of Dr. xxx, viz:

Since the psychological aberration of the Petitioner and Respondent stemmed early in their lives, these have been engraved into their system making their functioning and adjustments highly defective. Being an integral part of their wellbeing, such disorders are considered to be grave, pervasive, serious, severe and permanent rendering it totally beyond repair despite available treatments and intervention. Likewise, their psychological incapacitations are noted to be of juridical antecedence – meaning - such flawed personality pattern began before they entered marriage and manifested only thereon. Considering the severity of Petitioner and Respondent’s aberrant psychological conditions, reconciliation is found to be very difficult and impossible”.

40.   The diagnosed psychological incapacities of both

the petitioner and the respondent prevent them from mutually  performing their  marital duties to each other.  In support  of this,  Dr. xxx states:

“Erstwhile couple, xxx and xxx, could never live together harmoniously as authentic husband and wife with the psychological incapacitation of both of them. The hope of reconciliation with the hope of a functional or normal marital union founded on love, respect, trust, support and commitment is viewed to be uncertain and impossible as these essential attributes of marriage never existed from the start of the relationship”.

41.  Dr. xxx thus recommends that the marriage

between the parties be declared null and void based on the established psychological incapacitation of both the petitioner and the respondent as follows:

           

“Hence, with much consideration to the findings and discussions made, the undersigned psychologist humbly requests to this Honorable Court that their marriage be declared null and void, on the account of Petitioner’s psychological incapacitation”.

P R A Y E R

            WHEREFORE, premises considered, it is respectfully prayed that the marriage of the parties be declared null and void from the beginning under Article 36 of the Family Code.

            Petitioner also prays for other reliefs as may be deemed just and equitable in the premises.

            Las Pinas City, xxx.

LASERNA CUEVA-MERCADER

& ASSOCIATES LAW OFFICES

Counsel for the Petitioner

Unit 15, Star Arcade, C. V. Starr Avenue

Philamlife Village, Las Pinas City

Tel. Nos. 872-5443; 846-2539

Fax No. 846-2539

X x x.

VERIFICATION AND ANTI-FORUM SHOPPING CERTIFICATION

            X x x.

x x x."