SECOND DIVISION

G.R. No. 142820. June 20, 2003

WOLFGANG O. ROEHR, Petitioner, v. MARIA CARMEN D. RODRIGUEZ, HON. JUDGE

DECISION

QUISUMBING, J.:

At the core of the present controversy are issues of (a) grave abuse of discretion allegedly
committed by public respondent and (b) lack of jurisdiction of the regional trial court, in
matters that spring from a divorce decree obtained abroad by petitioner.

In this special civil action for certiorari, petitioner assails (a) the order 1 dated September
30, 1999 of public respondent Judge Josefina Guevara-Salonga, Presiding Judge of Makati
Regional Trial Court,[2 Branch 149, in Civil Case No. 96-1389 for declaration of nullity of
marriage, and (b) the order3 dated March 31, 2000 denying his motion for reconsideration.
The assailed orders partially set aside the trial courts order dismissing Civil Case No. 96-
1389, for the purpose of resolving issues relating to the property settlement of the spouses
and the custody of their children.

Petitioner Wolfgang O. Roehr, a German citizen and resident of Germany, married private
respondent Carmen Rodriguez, a Filipina, on December 11, 1980 in Hamburg, Germany.
Their marriage was subsequently ratified on February 14, 1981 in Tayasan, Negros
Oriental.4 Out of their union were born Carolynne and Alexandra Kristine on November 18,
1981 and October 25, 1987, respectively.

On August 28, 1996, private respondent filed a petition 5 for declaration of nullity of
marriage before the Regional Trial Court (RTC) of Makati City. On February 6, 1997,
petitioner filed a motion to dismiss,6 but it was denied by the trial court in its order7 dated
May 28, 1997.

On June 5, 1997, petitioner filed a motion for reconsideration, but was also denied in an
order8 dated August 13, 1997. On September 5, 1997, petitioner filed a petition for
certiorari with the Court of Appeals. On November 27, 1998, the appellate court denied the
petition and remanded the case to the RTC.

Meanwhile, petitioner obtained a decree of divorce from the Court of First Instance of
Hamburg-Blankenese, promulgated on December 16, 1997. The decree provides in part:

[T]he Court of First Instance, Hamburg-Blankenese, Branch 513, has ruled through Judge
van Buiren of the Court of First Instance on the basis of the oral proceedings held on 4 Nov.
1997:

The marriage of the Parties contracted on 11 December 1980 before the Civil Registrar of
Hamburg-Altona is hereby dissolved.

The parental custody for the children

Alexandra Kristine Roehr, born on 25 October 1987

is granted to the father.

The litigation expenses shall be assumed by the Parties.9 cräläw virt u alib räry

In view of said decree, petitioner filed a Second Motion to Dismiss on May 20, 1999 on the
ground that the trial court had no jurisdiction over the subject matter of the action or suit as
a decree of divorce had already been promulgated dissolving the marriage of petitioner and
private respondent.

On July 14, 1999, Judge Guevara-Salonga issued an order granting petitioners motion to
dismiss. Private respondent filed a Motion for Partial Reconsideration, with a prayer that the
case proceed for the purpose of determining the issues of custody of children and the
distribution of the properties between petitioner and private respondent.

On August 18, 1999, an Opposition to the Motion for Partial Reconsideration was filed by the
petitioner on the ground that there is nothing to be done anymore in the instant case as the
marital tie between petitioner Wolfgang Roehr and respondent Ma. Carmen D. Rodriguez
had already been severed by the decree of divorce promulgated by the Court of First
Instance of Hamburg, Germany on December 16, 1997 and in view of the fact that said
decree of divorce had already been recognized by the RTC in its order of July 14, 1999,
through the implementation of the mandate of Article 26 of the Family Code, 10 endowing the
petitioner with the capacity to remarry under the Philippine law.

On September 30, 1999, respondent judge issued the assailed order partially setting aside
her order dated July 14, 1999 for the purpose of tackling the issues of property relations of
the spouses as well as support and custody of their children. The pertinent portion of said
order provides:

Acting on the Motion for Partial Reconsideration of the Order dated July 14, 1999 filed by
petitioner thru counsel which was opposed by respondent and considering that the second
paragraph of Article 26 of the Family Code was included as an amendment thru Executive
Order 227, to avoid the absurd situation of a Filipino as being still married to his or her alien
spouse though the latter is no longer married to the Filipino spouse because he/she had
obtained a divorce abroad which is recognized by his/her national law, and considering
further the effects of the termination of the marriage under Article 43 in relation to Article
50 and 52 of the same Code, which include the dissolution of the property relations of the
spouses, and the support and custody of their children, the Order dismissing this case is
partially set aside with respect to these matters which may be ventilated in this Court.

SO ORDERED.11 (Emphasis supplied.)

Petitioner filed a timely motion for reconsideration on October 19, 1999, which was denied
by respondent judge in an order dated March 31, 2000.12 cräläwvirt u alib räry

Petitioner ascribes lack of jurisdiction of the trial court and grave abuse of discretion on the
part of respondent judge. He cites as grounds for his petition the following:
1. Partially setting aside the order dated July 14, 1999 dismissing the instant case is not
allowed by 1997 Rules of Civil Procedure.[13

2. Respondent Maria Carmen Rodriguez by her motion for Partial Reconsideration had
recognized and admitted the Divorce Decision obtained by her ex-husband in Hamburg,
Germany.[14

3. There is nothing left to be tackled by the Honorable Court as there are no conjugal assets alleged in the Petition
for Annulment of Marriage and in the Divorce petition, and the custody of the children had already been awarded
to Petitioner Wolfgang Roehr. [15cr älä wvirt u alib räry

Pertinent in this case before us are the following issues:

1. Whether or not respondent judge gravely abused her discretion in issuing her order dated
September 30, 1999, which partially modified her order dated July 14, 1999; and

2. Whether or not respondent judge gravely abused her discretion when she assumed and
retained jurisdiction over the present case despite the fact that petitioner has already
obtained a divorce decree from a German court.

On the first issue, petitioner asserts that the assailed order of respondent judge is
completely inconsistent with her previous order and is contrary to Section 3, Rule 16, Rules
of Civil Procedure, which provides:

Sec. 3. Resolution of motion - After the hearing, the court may dismiss the action or claim,
deny the motion, or order the amendment of the pleading.

The court shall not defer the resolution of the motion for the reason that the ground relied
upon is not indubitable.

In every case, the resolution shall state clearly and distinctly the reasons therefor.
(Emphasis supplied.)

Petitioner avers that a courts action on a motion is limited to dismissing the action or claim,
denying the motion, or ordering the amendment of the pleading.

Private respondent, on her part, argues that the RTC can validly reconsider its order dated
July 14, 1999 because it had not yet attained finality, given the timely filing of respondents
motion for reconsideration.

Pertinent to this issue is Section 3 in relation to Section 7, Rule 37 of the 1997 Rules of Civil
Procedure, which provides:

Sec. 3. Action upon motion for new trial or reconsideration.The trial court may set aside the
judgment or final order and grant a new trial, upon such terms as may be just, or may deny
the motion. If the court finds that excessive damages have been awarded or that the
judgment or final order is contrary to the evidence or law, it may amend such judgment or
final order accordingly.

Sec. 7. Partial new trial or reconsideration.If the grounds for a motion under this Rule
appear to the court to affect the issues as to only a part, or less than all of the matters in
controversy, or only one, or less than all, of the parties to it, the court may order a new trial
or grant reconsideration as to such issues if severable without interfering with the judgment
or final order upon the rest. (Emphasis supplied.)

It is clear from the foregoing rules that a judge can order a partial reconsideration of a case
that has not yet attained finality. Considering that private respondent filed a motion for
reconsideration within the reglementary period, the trial court's decision of July 14, 1999
can still be modified. Moreover, in Saado v. Court of Appeals,16 we held that the court could
modify or alter a judgment even after the same has become executory whenever
circumstances transpire rendering its decision unjust and inequitable, as where certain facts
and circumstances justifying or requiring such modification or alteration transpired after the
judgment has become final and executory17and when it becomes imperative in the higher
interest of justice or when supervening events warrant it.18 In our view, there are even
more compelling reasons to do so when, as in this case, judgment has not yet attained
finality.

Anent the second issue, petitioner claims that respondent judge committed grave abuse of
discretion when she partially set aside her order dated July 14, 1999, despite the fact that
petitioner has already obtained a divorce decree from the Court of First Instance of
Hamburg, Germany.

In Garcia v. Recio,19 Van Dorn v. Romillo, Jr.,20 and Llorente v. Court of Appeals,21 we
consistently held that 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.
Relevant to the present case is Pilapil v. Ibay-Somera,22 where this Court specifically
recognized the validity of a divorce obtained by a German citizen in his country, the Federal
Republic of Germany. We held in Pilapil that a foreign divorce and its legal effects may be
recognized in the Philippines insofar as respondent is concerned in view of the nationality
principle in our civil law on the status of persons.

In this case, the divorce decree issued by the German court dated December 16, 1997 has
not been challenged by either of the parties. In fact, save for the issue of parental custody,
even the trial court recognized said decree to be valid and binding, thereby endowing
private respondent the capacity to remarry. Thus, the present controversy mainly relates to
the award of the custody of their two children, Carolynne and Alexandra Kristine, to
petitioner.

As a general rule, divorce decrees obtained by foreigners in other countries are recognizable
in our jurisdiction, but the legal effects thereof, e.g. on custody, care and support of the
children, must still be determined by our courts.23Before our courts can give the effect
of res judicata to a foreign judgment, such as the award of custody to petitioner by the
German court, it must be shown that the parties opposed to the judgment had been given
ample opportunity to do so on grounds allowed under Rule 39, Section 50 of the Rules of
Court (now Rule 39, Section 48, 1997 Rules of Civil Procedure), to wit:

SEC. 50. Effect of foreign judgments. - The effect of a judgment of a tribunal of a foreign
country, having jurisdiction to pronounce the judgment is as follows:

(a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title to
the thing;
(b) In case of a judgment against a person, the judgment is presumptive evidence of a right
as between the parties and their successors in interest by a subsequent title; but the
judgment may be repelled by evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.

It is essential that there should be an opportunity to challenge the foreign judgment, in

In the present case, it cannot be said that private respondent was given the opportunity to
challenge the judgment of the German court so that there is basis for declaring that
judgment as res judicata with regard to the rights of petitioner to have parental custody of
their two children. The proceedings in the German court were summary. As to what was the
extent of private respondents participation in the proceedings in the German court, the
records remain unclear. The divorce decree itself states that neither has she commented on
the proceedings25 nor has she given her opinion to the Social Services Office.26 Unlike
petitioner who was represented by two lawyers, private respondent had no counsel to assist
her in said proceedings.27 More importantly, the divorce judgment was issued to petitioner
by virtue of the German Civil Code provision to the effect that when a couple lived
separately for three years, the marriage is deemed irrefutably dissolved. The decree did not
touch on the issue as to who the offending spouse was. Absent any finding that private
respondent is unfit to obtain custody of the children, the trial court was correct in setting
the issue for hearing to determine the issue of parental custody, care, support and
education mindful of the best interests of the children. This is in consonance with the
provision in the Child and Youth Welfare Code that the childs welfare is always the
paramount consideration in all questions concerning his care and custody. 28 cräläwv irt u alib räry

On the matter of property relations, petitioner asserts that public respondent exceeded the
bounds of her jurisdiction when she claimed cognizance of the issue concerning property
relations between petitioner and private respondent. Private respondent herself has
admitted in Par. 14 of her petition for declaration of nullity of marriage dated August 26,
1996 filed with the RTC of Makati, subject of this case, that: [p]etitioner and respondent
have not acquired any conjugal or community property nor have they incurred any debts
during their marriage.29 Herein petitioner did not contest this averment. Basic is the rule
that a court shall grant relief warranted by the allegations and the proof. 30 Given the factual
admission by the parties in their pleadings that there is no property to be accounted for,
respondent judge has no basis to assert jurisdiction in this case to resolve a matter no
longer deemed in controversy.

In sum, we find that respondent judge may proceed to determine the issue regarding the
custody of the two children born of the union between petitioner and private respondent.
Private respondent erred, however, in claiming cognizance to settle the matter of property
relations of the parties, which is not at issue.

WHEREFORE, the orders of the Regional Trial Court of Makati, Branch 149, issued on
September 30, 1999 and March 31, 2000 are AFFIRMED with MODIFICATION. We hereby
declare that the trial court has jurisdiction over the issue between the parties as to who has
parental custody, including the care, support and education of the children, namely
Carolynne and Alexandra Kristine Roehr. Let the records of this case be remanded promptly
to the trial court for continuation of appropriate proceedings. No pronouncement as to costs.
SO ORDERED.

Bellosillo, (Chairman), and Callejo, Sr., JJ., concur.

Austria-Martinez, J., on official leave.