MEMORANDUM OF THE PETITIONER

Petitioner, through undersigned counsel, and to this Honorable Court, most

respectfully files this memorandum to wit:

STATEMENT OF THE FACTS

The petitioner has been a victim of physical, psychological, emotional and
verbal abuse throughout the marriage. The respondent is an irresponsible
individual who gambles, does not support petitioner and their child financially,
psychologically and emotionally, and has insisted on living in Manila, away from
petitioner and their child but now seeks to re-insert himself in their lives, causing
undue havoc in petitioner and her child’s lives.
One time, petitioner was still pregnant with their son. She, while arranging
the things inside their room came across pictures of the respondent and other
women. She confronted him about it and they had a big argument. He was furious
that he slapped petitioner right in front of his mother.
Petitioner had to endure constant psychological abuse from respondent.
Even early in their relationship, upon the instruction of respondent, she was
brought by his mother and older brother to see the ex-live-in partner of
respondent. During the visit, ex-live-in partner still called respondent’s mother
“mommy”. The second time was when respondent himself brought petitioner to
his ex-live-in partner. Respondent later explained that all these were done to make
the ex-partner jealous. Petitioner, to her mind, could simply not understand, as she
thought respondent was so insensitive and the meetings with his ex-partner were
uncalled for.
On other occasion, while preparing for the wedding, respondent wanted to
use the wedding ring that he had previously prepared for his ex-partner. Petitioner
resisted and said “No”. She thought respondent was joking but she later found out
that he was not. She could not bring herself the wedding ring which bears the name
of another woman.
 On the wedding night, petitioner and respondent, together with the
respondent’s mom slept in the same room, on the same bed- all three of them.
There was no honeymoon for them.
Respondent is a gambler. He plays pool and calls this a hobby when the truth
is, it is more of an addiction. When petitioner confronted respondent about this,
he simply told her that it was his money and he should decide how to spend the
same. Instead of listening to her, respondent got angry and told petitioner in front
of his mother to leave him alone and mind her own business because after all, he
was the one who worked for the money. From then on, petitioner tried not to
interfere with how he handled their finances.
Respondent’s mother and brother constantly teasing petitioner about
respondent’s ex-girlfriends. They tell her about them almost everyday during
mealtime. His mother would say to petitioner and respondent that “ang asawa
pwede palit palitan, pero ang ina di pwedeng palitan”.
Respondent has also been unfaithful to petitioner. One time she caught him
having a relationship with one of his patients in her dental clinic in Manila.
Respondent while working abroad sent balikbayan boxes to another woman. She
discovered this one time when she looked at the receipt for a box addressed to
another woman.
Respondent has consistently refused to stay with petitioner and their child.
He has been an absentee husband and father in their six (6) years of married life.
He even left abroad to work, while petitioner was three (3) months pregnant with
their son. He was not around when she gave birth. No one from his family was
there. Only petitioner’s mother, who had to fly from Dumaguete to Manila to be
with her.
She delivered their child via caesarian. She had a premature labor owing to
the stress that she had to endure while living with respondent’s family in Manila.
The pregnancy was difficult for her, owing the fact that it was her first
pregnancy. Respondent was never there to support her.
It was a total agony, to say the least for her to be left with respondent’s
family in Manila. She was thrown into an environment totally unfamiliar to her.
Worst, respondent left for work abroad, at the behest of his mother who was so
dependent on him for financial resources. Petitioner was left to fend for herself.
She lived in an apartment where that first floor was a videoke bar and a
billiard hall run by respondent’s brother.
Owing to the unhealthy environment, their son was diagnosed with Primary
Complex at birth and had to undergo treatment for about six (6) months.
Petitioner constantly begged respondent to have a place of their own. In
Manila, they were sharing a room with respondent’s mother.
When respondent finally came home in 2008, she was elated that he finally
agreed to come home to Dumaguete and make a life of their own.
After so many cancellations and postponements, respondent arrived home
in Manila sometime in the last week of November 2008. Petitioner was expecting
him to be father to Prince but she was wrong. Instead of spending time with them,
he spent long hours downstairs with the billiard people. When finally he came in
their room, he just kissed Prince and me and said he will just go to the other room
and talk to his mother. Petitioner waited and waited until dawn and when she could
not hold any longer, she angrily knocked on his mother’s door and found him
sprawled on bed beside his mom, sleeping. Petitioner thought respondent was a
hopeless mama’s boy.
It was a bitter sweet coming home, as respondent only stayed a few days,
and after setting up her dental clinic, respondent insisted that e return to Manila
to be with his family. It was supposed to be a temporary arrangement as
respondent promised that he would just set his family back in their ancestral house
in Subic and would return to Dumaguete to be with petitioner and their son.
Respondent never did stay in Dumaguete for long. Whenever he comes, he
would only stay for few days and never with the intention of staying for more than
a week. It was not the family life that petitioner had envisioned.
Since 2009, when they came home to Dumaguete, respondent has not been
consistently giving financial support to petitioner and their child. She is left to
provide for virtually all of their son’s basic needs.
 Respondent did not give due importance to special occasions, like birthdays,
their anniversaries, and even Christmas and New Year. To him, phone call was
enough. He would always come up with excuses so he could justify his being not
physically present during these special occasions.
The circumstances of the abuse that petitioner has endured in courtship and
six (6) years of married life are detailed in her Sworn Affidavit dated November 8,
2012 and the same is made an integral part of this petition, hereto attached as
Exhibit “D”.
The most recent event that prompted her to file the instant Petition for a
Protection Order happened last October 27, 2012. Out of the blue, respondent has
appeared in Dumaguete City and seeks to re-insert himself to their lives.
Demanding that he assumes the role of husband and father as if everything is
absolutely normal between them.
After more than a year of no constant communication, just occasional
sending of text messages and phone calls, petitioner has somehow accepted her
fate of not having a regular married and family life.
Last October 26, 2012, petitioner received a text message from her secretary
telling her that her that respondent was in her dental clinic. Fortunately, she was
already out of the clinic, so she decided to spend the night at my aunt’s place and
not to go home to her parent’s house. Since then petitioner and her son has been
living at her aunt’s place.
Last October 27, 2012, respondent, out of the blue and unannounced arrived
at petitioner‘s dental clinic located at Pinili Street, Dumaguete City. He demanded
that he will stay at the dental clinic. They figured into a nasty argument. He wants
to sell everything in the clinic. Respondent also threatened petitioner and
threatened to take their son Prince with him to Manila and take him away from the
petitioner. Respondent would not leave the clinic until he will have the key.
Petitioner had to call the Dumaguete PNP to ask for assistance and she was so
frightened that she had the incident entered into the Police Blotter of the
Dumaguete PNP. It was recorded as Entry 1088 at about 5:00 P.M.. A copy of Police
Blotter Entry No 1088 is hereto attached as Exhibit “E”.
 Petitioner was so scared that she and their son did not go home to her
parent’s house. She and their son stayed with another relative. Respondent since
October 27, 2007 has been staying at petitioner’s uncle Dario Elvinia and his wife
Sansen’s house. The latter’s house is right next to petitioner’s house.
Respondent has consistently harassed petitioner through text messages for
the past few days.
These incidents, the threats and the harassment prompted petitioner to
apply for a Barangay Protection Order.
Last October 28, 2012, she applied and was issued a Barangay Protection
Order (BPO) by Brgy. Captain Ricardo Valencia of Brgy. Mangnao. The following day,
October 29, 2012, the Barangay Tanods of Mangnao tried to serve the BPO to
respondent but to no avail. Respondent was not around at Dario Elvinia’s residence
and he could not be found.
The following day, October 29, 2012, at St. Louis School, where their son goes
to school. , respondent went and insisted to take Prince out from school. Petitioner
arrived in school as she was informed that Rogel was in school but respondent had
already left. She then went back to the clinic and came back afterwards. When she
came back to school at dismissal time, respondent was there. She talked to him a
bit and brought him to the school’s principal to ask for some advice about Prince.
He pretended to remain calm but respondent bad-mouthed petitioner with the
Principal the whole time.
Petitioner was so humiliated and ashamed because in front of the school
principal he accused her of being a worthless person, who just married and used
his money. He asked to talk to the principal in private and gave way because she
could not bear the embarrassment.
After respondent talked to the School Principal, he came after Prince and
petitioner at the school library. He insisted on taking Prince with him on his own
but petitioner would not permit of it. Respondent then tried to close the door and
deliberately tried to hurt himself by inserting his fingers between the doos jam and
saying “sige ipitin mo ako hanggang dumugo para maipa-medical ko”.
Petitioner had no choice but to ask him that they talk near the football field
so they could be far from curious onlookers. She just listened to him and made him
blab his way. They created a commotion there when respondent insisted on taking
Prince out. Petitioner did not agree to him and eventually he just left. Petitioner
was fearful of what he would do next.
The following day, October 30, 2012, petitioner did not allow Prince to go to
school. She was afraid of respondent’s threats of taking their son with him to
Manila.
The following day, October 31, 2012, sure enough, as petitioner suspected,
respondent went to Prince’s school again and finding Prince was absent, he went
on to file police blotter and submit a letter of complaint to the principal and school
director for my relative, Mrs. Elvira E. Navera, who was the one sheltering me and
my son whom he accused of threatening him and tolerating petitioner. These all
add up to petitioner’s humiliation.
In the afternoon of the same day mentioned above, respondent came to
petitioner at the clinic and demanded to see Prince. He was in his usual arrogant
self. Respondent insisted on taking Prince out. To appease him, petitioner said yes.
So the three of them went to Robinsons. The whole time petitioner was fearful of
what he would do to them.
On November 2, 2012, respondent came to petitioner’s relative’s place. She
was out that time to buy some groceries, leaving Prince with her uncle and his
cousins. Respondent was able to meet Prince and left shortly thereafter.
Last November 3, 2012, respondent was finally served a copy of the BPO that
he refused to acknowledge. The Barangay personnel left a copy of the BPO with
him. A copy of the BPO dated October 28, 2012 and served November 3, 2012 is
hereto attached as Exhibit “F”.
The BPO was effective only until November 18, 2012. Even with the BPO in
effect, in November 7, 2012, respondent again came to petitioner’s dental clinic
and stayed there for most of the day even when she had patients in the clinic. She
was so frightened. Petitioner was trembling the whole time he was there. She had
to be calm as he was doing a dental procedure.
Petitioner is now fearful of her security. She is scared that with respondent
constantly hounding her, she might commit mistake which might forbiddingly
jeopardized her patients and her dental career.
 Petitioner is also sad and fearful that their five-year old son, Prince may be
confused with what is happening. Respondent’s sudden and untoward presence
has bewildered their son. The confusion may have taken a toll on his young body.
Petitioner had to bring him to the doctor, as he is suffering from fever, cough, and
colds. It turns out he has Pneumonia and he has to rest for two to three days to
recuperate. A copy of the Medical Certificate for Prince Rogel R. Heniel is hereto
attached as Exhibit “G”.
Respondent has physically assaulted the petitioner while she was pregnant
and in front of his mother. He has on numerous occasions subjected her to
psychological, emotional and verbal abuse and even threatened petitioner’s safety
and security. He also threatened to take their five-year old son with him despite
the protestations of petitioner. All these forms of violence have caused detriment
to both emotional and psychological growth of petitioner and their son.
Last November 12, 2012, petitioner filed a Petition for a Permanent
Protection Order. On the same month and year, petitioner was issued a Temporary
Protection Order (TPO) for the duration of thirty (30) days. A copy of which which
is hereto attached as Exhibit “H”.
As of the date of the filling of this Petition for Declaration of Nullity of
Marriage, the PPO is still pending.
In the year 2012, she sought the help of a psychiatrist and submitted herself
to a psychiatric evaluation. It was in the expert opinion of Dr. Jose Perpetuo Lozada
that the petitioner has no evidence of Psychosis, Neurosis, Personality Disorder,
Organic Brain Pathology and or Gross Neurological Deficits. She has been found to
be mentally healthy and can be considered with a strong capacity to comply with
the essential marital obligations. Respondent, on the other hand, has been
diagnosed to have an Antisocial Personality Disorder. He is suffering from a
psychological illness that is serious, continuing and incurable. This is a clear
manifestation of Psychological Incapacity to Comply with the essential Marital
Obligations in Marriage. A copy of the Psychiatric Evaluation and Report of the
petitioner is hereto attached as Exhibit “I”. Attached as Exhibit “J” is the Expert
Opinion of dr. Jose Perpetuo Lozada on the state of mind of respondent.
Because of the respondent’s psychological incapacity to comply with the
essential marital obligations of living together, observing mutual love, respect and
fidelity, providing both financial and moral support to each other and most
importantly not committing any act which brings dishonor to the petitioner. The
petitioner is thus entitled to have her marriage with respondent declared as null
and void in accordance with Article 36 of E.O. 209, as amended.
Absolute Community of Properties
Petitioner and respondent have acquired the following as part of their
absolute community properties:
a. Rubio-Heniel Dental Clinic located at Pinili Street, Dumaguete City, and all
its equipment contained therein, particularly the Dental Unit and Dental X-Ray
costing about Php 300, 000. 00
Custody of the minor child Prince Rogel R. Heniel
The forgoing allegations are herein pleaded to support the claim of petitioner
for sole custody of their minor child 11 years old, who will be turning 12 this April
27, 2019.
It is to the best interest of the minor child that the sole custody be vested in
petitioner. Respondent has consistently neglected his obligations to his son and it
has always been petitioner that has supported him emotionally and financially.

STATEMENT OF THE ISSUE

Whether the totality of evidence presented by petitioner supports the
findings that respondent is psychologically incapacitated to perform his essential
marital obligations, meriting the dissolution of his marriage with petitioner.
ARGUMENTS/DISCUSSION
Article 36 of the Family Code states:
Art. 36. A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the essential
marital obligations of marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization.
 We have laid down guidelines in interpreting and applying this provision. In
Republic v. De Gracia, we reiterated the doctrine in Santos v. Court of Appeals,
"that psychological incapacity must be characterized by: (a) gravity (i.e., it must be
grave and serious such that the party would be incapable of carrying out the
ordinary duties required in a marriage); (b) juridical antecedence (i.e., it must be
rooted in the history of the party antedating the marriage, although the overt
manifestations may emerge only after the marriage); and (c) incurability (i.e., it
must be incurable, or even if it were otherwise, the cure would be beyond the
means of the party involved)." Also, in Republic v. Court of Appeals, we reiterated
the well-settled guidelines in resolving petitions for declaration of nullity of
marriage, as embodied in Republic v. Court of Appeals1, viz:
1) The burden of proof to show the nullity of the marriage belongs to the
plaintiff. Any doubt should be resolved in favor of the existence and continuation
of the marriage and against its dissolution and nullity.x x x.
xxxx
(2) The root cause of the psychological incapacity must be (a) medically or
clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts
and (d) clearly explained in the decision. Article 36 of the Family Code requires that
the incapacity must be psychological - not physical, although its manifestations
and/or symptoms may be physical. x x x.
xxxx
(3) The incapacity must be proven to be existing at 'the time of the
celebration' of the marriage.x x x.
xxxx
(4) Such incapacity must also be shown to be medically or clinically
permanent or incurable. x x x.
xxxx
(5) Such illness must be grave enough to bring about the disability of the
party to assume the essential obligations of marriage. Thus, 'mild characteriological

1
Lontoc-Cruz vs. Cruz, G.R. No. 201988
peculiarities, mood changes, occasional emotional outbursts' cannot be accepted
as root causes.x x x.
xxxx
(6) The essential marital obligations must be those embraced by Articles 68
up to 71 of the Family Code as regards the husband and wife as well as Articles 220,
221 and 225 of the same Code in regard to parents and their children. Such non-
complied marital obligation(s) must also be stated in the petition, proven by
evidence and included in the text of the decision.
(7) Interpretations given by the National Appellate Matrimonial Tribunal of
the Catholic Church in the Philippines, while not controlling or decisive, should be
given great respect by our courts. x x x.
xxxx
(8) The trial court must order the prosecuting attorney or fiscal and the
Solicitor General to appear as counsel for the state. x x x.
Using these standards, petitioner was able to sufficiently prove that
respondent is psychologically incapacitated to discharge the duties expected of a
husband. The totality of evidence adduced in the course of the proceedings is
clearly wanting.
In the Judicial Affidavit of respondent, to wit;
Q60: So when you decided to stay (Dumaguete) what happened next?
A60: I decided to continue my business in Manila.
This is an evidence to support that such act of the respondent shows too
much attachment to his mother. A family man who agreed with his wife to settle in
Dumaguete and to have established a dental clinic, would want to go home in
Manila and run a business making it more expensive because his plan was to go
there every week to check the business and goes back to Dumaguete for his family.
Another admission by the respondent in his Judicial Affidavit, to wit:
Q73: Your wife says you are an absentee father and that last October 2012,
you came to Dumaguete in an attempt to insist and re-insert your role as husband
and father to your wife and to your son, what can you say about this?
 AQ73: That’s not true.
Q74: What do you mean?
AQ:74: From February to August 2012, I was being treated for diabetes and
because finances were already at all time low as a result of treatments, I was forced
to stay in Manila. x x x
Respondent here remained in Manila where his family, wife and son are in
Dumaguete. In times of sickness, it will be your wife who will be taking care of the
husband and since petitioner chose to be with his mother in Manila, he was away
from his wife and son during his entire medication period.
Based on the psychiatric evaluation of an expert opinion, Dr. Jose Perpetuo
Lozada that Rogel V. Heniel is suffering from Psychological Incapacity to comply
with the essential marital obligations in marriage that originated from his Antisocial
Personality Disorder. This psychiatric disorder is deeply ingrained , pervasive,
recurrent, maladaptive pattern of behavior that does not recognize the rights of
others. He is the youngest of three all male siblings and the favorite of his mother.
After his father died, the entire family got out of control starting with Rogel’s
mother. They have their respective vices and spending their inheritance in a very
extravagant manner until they became bankrupt.
In marriage, this manifested as inability to understand his commitment and
intimacy that is required in the relationship. He manifested a deficit in planning and
judgment has poorly formed conscience, failure in empathy, love and basic trust
that his loving wife deserved. He showed prominence of aggression against his wife
through psychological and emotional abuse, and does not support his wife
financially, psychologically and emotionally. This is a clear manifestation of
Psychological Incapacity to comply with the essential marital obligations in
marriage.

PRAYER
WHEREFORE, premises considered, it is most respectfully prayed of this
Honorable Court that after due proceedings:
 1. Render judgment declaring the marriage contracted by petitioner and
respondent on August 11, 2006 as null and void by reasons of respondent’s
psychological incapacity to comply with his essential marital obligations, with all its
effects as provided for in Article 50 of E.O. No. 209 of the Family Code of the
Philippines.
2. Custody of the minor child Prince Rogel R. Heniel, now 11 years old, who
will be turning 12 this April 27, 2019 shall be vested solely in petitioner and
respondent.