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SALMINGO VS. RUBICAA.C. No. 6573. July 9, 2007.

IGNACIO J. SALMINGO, Complainant, vs.ATTY. RODNEY K. RUBICA, Respondent

TOPIC AS PER OUTLINEV. Marriage and Personal Relations between Spouses > G. Void Marriages > 4.Procedure in Actions for Declaration of Nullity > b. Safeguards Against Collusion

CONCEPTS INVOLVED1. Collusion an agreement between two or more individuals to perpetrate a fraud or to

commit an illegal act. It can be an agreement between a husband and wife tosuppress facts, manufacture false evidence or to do some act that would create orappear to create a ground for a declaration of nullity.

2. Ex parteLatin for By or for one party or by one side, it refers to situations inwhich only one party (and not the adversary) appears before a judge.

GENERAL SUMMARYThis is a disbarment case filed against a lawyer who allegedly failed to comply with theproper rules on filing for a declaration of nullity of his marriage with his wife.

FACTS On January 9, 2003, Atty. Rodney Rubica filed before RTC of Negros Occidental a

complaint for declaration of nullity of his marriage with Liza Jane Estao.

The summons for Liza Jane at her given address was returned as unserved asallegedly no one could be found in the given address.

Atty. Rubica thereupon filed a Motion for Leave of Court to Effect Service ofSummons by Publication, which was granted. Summons was thus published inthe Visayan Post, a weekly newspaper of general circulation in Negros Occidental.

Nothing was heard from Liza Jane. Hence, Atty. Rubica presented evidence ex partebefore RTC of Silay without the participation of the City Prosecutor.

On May 23, 2003, the trial court declared the marriage between respondent and LizaJane as null and void, as the evidence showed that there was a previous valid andexisting marriage between Liza Jane and one Rene Jose T. Mojica. The judgment

was entered as final on July 17, 2003. However, an administrative complaint for disbarment against Atty. Rodney K. Rubica

was transmitted by Ignacio J. Salmingo (complainant) to the Chief Justice by letterof September 27, 2004. This was referred to the IBP for investigation, report, andrecommendation.

Ignacio Salmingo contends that Atty Rubica:(1) deliberately concealed Liza Janes address so that she could not be served with

summons, thus enabling him to present evidence ex parte;(2) caused the publication of summons only in a newspaper of local circulation;(3) did not serve a copy of his petition on the Office of the Solicitor General and the

Office of the City of Provincial Prosecutor;(4) did not cause the registration of the decree of nullity in the Civil Registry.

ISSUEWON Atty. Rubica followed the proper rules on filing for a declaration of nullity at the timethe case was filed.

HELDYES, Atty. Rubica followed the proper rules on filing for a declaration of nullity.

RATIO

In general, it was said by the SC that the presumption of innocence [is] in favor ofthe lawyer. Consequently, the burden of proof is on the complainant to overcomesuch presumption and establish his charges by clear preponderance of evidence

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Further, the Rules of Court at the time Atty. Rubica filed for the declaration of nullityof his marriage were different from the Rules of Court at time the complaint bySalmingo was filed.

1. OnConcealing Liza Janes Address

Salmingo claimed that Atty. Rubica had been sending allowances to Liza Janeand their children at her residence.

Atty Rubica countered that he had been depositing allowances through anautomated teller machine (ATM) account, which deposit could be withdrawn at

any ATM machine within the Philippines. Salmingo failed to controvert Rubicas defense.

2. On the Publ ication Requirement

Atty. Rubica did comply with the procedure in the Rules of Court on service bypublication on a respondent whose whereabouts are unknown.

At the time the declaration of nullity of his marriage was filed on January 9, 2003,the procedure required only publication in a newspaper of general circulationand in such places and for such time as the court may order.

This was opposed toa newspaper of general circulation in the Philippines andin such places as the court may order required by Section 6 (1) of the Rule OnDeclaration Of Absolute Nullity Of Void Marriages And Annulment Of VoidableMarriages which took effect on May 15, 2003.

The first mentioned Rule did not specifically state in the Philippines whichrequired publication on a national scale.

3. On Serving Copies of Peti t ion to Sol ici tor General and Publ ic Prosecuto r

At the time respondent filed his petition for declaration of the nullity of marriage,what applied was the Rules of Court of May 15, 2003 under which he was notrequired to file his petition in six copies and to serve copies on the Office of theSolicitor General and that of the City or Provincial Prosecutor.

4. On The Registration of the Decree of Nul l i ty with the Civi l Registry

Salmingo offered no proof, in accordance with Section 28, Rule 132 of the Rulesof Court, which required a written statement signed by an officer having custodyof an official record that after diligent search no record or entry of a specified

tenor is found to exist in the records of his office,

5. On col lus ion

Sec. 8. par. 3 (Answer) of the May 15, 2003 Rules of Court mentioned that:Where no answer is filed or if the answer does not tenderan issue, the court shall order the public prosecutor toinvestigate whether collusion exists between theparties.

The requirement that the trial court orders the prosecutor to investigate whethercollusion existsin case the defendant in the declaration of nullity case files noansweris addressed to the trial court, not to the parties to the case nor totheir counsel,

If the respondent does not show any involvement in the lapse of the prescribed

procedure, he cannot be faulted.