SALMINGO VS. RUBICA A.C. No. 6573. July 9, 2007. IGNACIO J. SALMINGO, Complainant, vs. ATTY. RODNEY K.

RUBICA, Respondent

TOPIC AS PER OUTLINE V. Marriage and Personal Relations between Spouses > G. Void Marriages > 4. Procedure in Actions for Declaration of Nullity > b. Safeguards Against Collusion CONCEPTS INVOLVED 1. 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 to suppress facts, manufacture false evidence or to do some act that would create or appear 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 in which only one party (and not the adversary) appears before a judge. GENERAL SUMMARY This is a disbarment case filed against a lawyer who allegedly failed to comply with the proper 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 as allegedly no one could be found in the given address. Atty. Rubica thereupon filed a Motion for Leave of Court to Effect Service of Summons by Publication, which was granted. Summons was thus published in the Visayan Post, a weekly newspaper of general circulation in Negros Occidental. Nothing was heard from Liza Jane. Hence, Atty. Rubica presented evidence ex parte before RTC of Silay without the participation of the City Prosecutor. On May 23, 2003, the trial court declared the marriage between respondent and Liza Jane as null and void, as the evidence showed that there was a previous valid and existing 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 letter of September 27, 2004. This was referred to the IBP for investigation, report, and recommendation. 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. ISSUE WON Atty. Rubica followed the proper rules on filing for a declaration of nullity at the time the case was filed. HELD YES, 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 of the lawyer. Consequently, the burden of proof is on the complainant to overcome such presumption and establish his charges by clear preponderance of evidence

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

1. On Concealing Liza Janes Address Salmingo claimed that Atty. Rubica had been sending allowances to Liza Jane and their children at her residence. Atty Rubica countered that he had been depositing allowances through an automated 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 Publication Requirement Atty. Rubica did comply with the procedure in the Rules of Court on service by publication 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 circulation and in such places and for such time as the court may order. This was opposed to a newspaper of general circulation in the Philippines and in such places as the court may order required by Section 6 (1) of the Rule On Declaration Of Absolute Nullity Of Void Marriages And Annulment Of Voidable Marriages which took effect on May 15, 2003. The first mentioned Rule did not specifically state in the Philippines which required publication on a national scale. 3. On Serving Copies of Petition to Solicitor General and Public Prosecutor 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 not required to file his petition in six copies and to serve copies on the Office of the Solicitor General and that of the City or Provincial Prosecutor. 4. On The Registration of the Decree of Nullity with the Civil Registry Salmingo offered no proof, in accordance with Section 28, Rule 132 of the Rules of Court, which required a written statement signed by an officer having custody of 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 collusion 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 tender an issue, the court shall order the public prosecutor to investigate whether collusion exists between the parties. The requirement that the trial court orders the prosecutor to investigate whether collusion existsin case the defendant in the declaration of nullity case files no answeris addressed to the trial court, not to the parties to the case nor to their counsel, If the respondent does not show any involvement in the lapse of the prescribed procedure, he cannot be faulted.