THIRD DIVISION

MARIA SHEILA ALMIRA T. VIESCA, Petitioner, - versus - DAVID GILINSKY,* Respondent.

G.R. No. 171698 Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, and NACHURA, JJ. Promulgated: July 4, 2007

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D E C I S I O N

CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari of the Decision[1] of the Court of Appeals promulgated on 19 October 2005 in CA-G.R. SP No. 90285 which affirmed, with modification, the Order dated 16 June 2005 rendered by the Regional Trial Court, Branch 136, Makati City, in Civil Case SP Proc. Case No. M-5785.

The facts of the case are as follows:

Petitioner and respondent, a Canadian citizen, met sometime in January 1999 at the Makati Shangri-La Hotel where the former worked as a hotel manager. After a few months, a relationship blossomed between the two. On 22 October 2001, their son Louis Maxwell was born.[2] On 30 October 2001, respondent executed an Affidavit of Acknowledgment/Admission of Paternity[3] of the child. Subsequently, the Civil Registrar of Makati City issued a Certification granting the change of Louis Maxwell’s surname from “Viesca” to “Gilinsky.”[4]

Unfortunately, the relationship between petitioner and respondent soured and they parted ways during the early part of 2003.

On 6 February 2004, respondent filed a Petition praying that he be entitled to the company of Louis Maxwell at any time of any given day; he be entitled to enjoy the company of Louis Maxwell during weekends and on such occasions the child shall be allowed to spend the night with his father; and he be entitled to enjoy a yearly three-week vacation in any destination with his child.[5] The case was raffled off to public respondent’s sala and was docketed as SP Proc. Case No. No 5785.

During the pendency of respondent’s petition, the parties arrived at a compromise agreement. This compromise agreement was submitted before the trial court and became the basis of the Compromise Judgment issued on 12 May 2004.[6] We reproduce the Compromise Judgment below–

COMPROMISE JUDGMENT

Acting on the joint motion to render judgment based on Compromise Agreement and finding the allegations therein to be of merit, same is hereby given due course.

Judgment is therefore rendered based on the compromise agreement which is quoted hereunder.

“COMPROMISE AGREEMENT

KNOW ALL MEN BY THESE PRESENTS:

This Agreement entered this 22^nd day of April 2004 by and between:

DAVID GILINSKY, of legal age, single and residing at Suite 2828, Makati Shang-rila Hotel, Ayala Avenue corner Makati Avenue, Makati City, hereinafter referred to as the “FATHER”

-and-

SHEILA T. VIESCA, of legal age, single and a resident of Lot 2, Block 39, Phase 5, Fort Bonifacio, Taguig, Metro Manila, hereinafter referred to as the “MOTHER”.

WITNESSETH:

WHEREAS, the parties are the biological parents of minor LOUIS MAXWELL (the “CHILD”) born on 22 October 2001;

WHEREAS, as a result of disputes and differences, the parties are now living separately and apart;

WHEREAS, the parties desire to provide for a complete settlement of the issues pertaining to the custody, visitorial rights, support and maintenance of the child;

WHEREAS, each party acknowledges his or her personal obligations as parent of the child and, by these presents, each hereby undertakes to render the performance of these obligations to the child and comply with his or her duties as a parent;

NOW, THEREFORE, for and in consideration of the promises and dispositions made in this agreement, the parties hereto have agreed as follows:

I. CUSTODY OF THE CHILD

The mother shall continue to have custody over LOUIS MAXWELL while the father shall exercise visitorial rights as hereunder stated.

Both parties, by these presents, undertake to take every measure necessary, desirable and proper, to consider the best interest of the child at all times, whether with them or away from them. Any act, word or manipulative scheme that may cause the alienation of feelings or loss of respect or that either one or both of them, from either one of the parties, shall never be tolerated.

II. VISITATION RIGHTS

As the child will continue to be in the custody of the mother, the father, as the non-custodial parent shall be entitled to the following supervised visitation rights, to wit:

a. He shall be entitled to the company of the child every Saturday and/or Sunday afternoon;

b. The child shall be allowed to spend the night with the father once a week;

c. Nothing herein shall prevent the father from visiting the child during reasonable hour in the afternoon of any day of the week at the mother’s residence in the presence of the mother or her duly designated representative, and with prior notice to the mother.

One year after the signing of this agreement, the parties shall meet to discuss and resolve the matter pertaining to the entitlement of the father to enjoy a yearly, three-week vacation in any destination with the child.

In the exercise and/or enjoyment of the above rights, the mother shall have the right to designate any person of suitable age to accompany the child.

III. SUPPORT

a. The father shall give monthly financial support of US Dollars Five Hundred (US$500.00) or its Peso equivalent within the first five days of the month effective upon the signing of this agreement. The amount shall be subject to such yearly adjustment of such rate equal to the inflation rate determined by the appropriate government agency.

b. On top of the said monthly financial support, the Father shall provide:

i. full medical and dental expenses and/or insurance coverage for the child;

ii. full education for the child at Colegio San Agustin, Makati or any other suitable school;

iii. college Education Insurance for the child;

iv. monthly car amortization of Ten Thousand Pesos (P10,000.00) or One Fourth (1/4) of the current amortization whichever is lower;

v. Monthly amortization due as of the date of this Agreement for the Rockwell-Manansala Condominium unit until its full payment and transfer of title, including its association dues and charges. The mother here affirms/confirms she is holding title to the condominium in trust for the child.

The mother shall ensure that all arrears and/or outstanding obligations prior to the execution of this agreement shall have been settled and paid. As soon as the above have been fully complied with, the father shall pay the ensuing monthly amortization.

IV. COURT APPROVAL OF AGREEMENT

This agreement shall be governed by and construed in accordance with the laws of the Republic of the Philippines. The parties hereto shall, in good faith, strictly abide by the terms hereof.

The parties agree to submit this written agreement for the court’s approval.

V. JUDICIAL RELIEF

Should either one of the parties fail to comply with the terms and conditions of this Agreement, the aggrieved party may seek judicial relief against the erring party and apply with the proper court for a writ of execution against said erring party to enforce his or her obligations imposed in this Agreement. The offending party shall pay for the cost of litigation, attorney’s fees, other expenses, and interest incurred in such application for a writ of execution.

IN WITNESS WHEREOF, we have hereunto affixed our respective signatures on the date and place hereinabove mentioned.

(SGD) DAVID GILINSKY (SGD) SHEILA T. VIESCA[7]

Father Mother

On 5 April 2005, respondent filed an “Urgent Motion for Issuance of Writ of Execution.” It was alleged in said motion that petitioner had repeatedly refused to abide by the terms of the compromise judgment, particularly the provision allowing Louis Maxwell to spend a night with him at any day of the week. Respondent likewise stated in his motion that he had already filed a Petition to cite petitioner in contempt which was raffled off to the Regional Trial Court, Branch 59 of Makati City.[8]

Respondent’s Urgent Motion for Issuance of Writ of Execution was scheduled to be heard on 8 April 2005. Notice thereof was received by petitioner’s counsel on 5 April 2005.[9] On 7 April 2005, petitioner’s counsel filed a Manifestation[10] requesting that the hearing on said motion be reset, as he had to be in Balanga, Bataan on the date and time of the scheduled hearing. He also prayed that he be given a period of seven days within which to file his Comment/Opposition to respondent’s Urgent Motion for Issuance of Writ of Execution.

Despite petitioner’s Manifestation, the trial court still proceeded to hear respondent’s urgent motion on 8 April 2005 and issued the Writ of Execution prayed for by respondent.[11]

On 9 April 2005, the court sheriff together with respondent tried to serve the Writ of Execution upon petitioner at her residence in Taguig City. Petitioner’s mother informed the sheriff and respondent that petitioner was then at her office. The sheriff then asked petitioner’s mother to inform petitioner about the service of the Writ of Execution. After about half an hour, petitioner, her father, and her lawyer Atty. Jorge Manuel arrived. Atty. Manuel received the copy of the Writ of Execution but informed the court sheriff that they would not comply with the court’s order and would challenge the writ.[12]

As expected, petitioner filed a Motion to Quash Writ of Execution[13] insisting that said writ was issued with “indecent haste” violative of her right to due process, and that the writ varied the terms of the Compromise Agreement since it failed to take into consideration the parties’ understanding that in the enjoyment of respondent’s visitorial rights, petitioner “shall have the right to designate any person of suitable age to accompany the child.”[14]

On 15 April 2005, petitioner’s Motion to Quash Writ of Execution was heard. What transpired during the hearing was summarized by the trial court in its Order given in open court as follows:

The Court heard the arguments raised by the counsel for the [herein petitioner] and the reply/comment thereto made by the counsel for the [herein respondent]. The [herein petitioner] thru counsel imposed certain conditions if ever the visitorial rights of the [herein respondent] would be granted. Though [herein petitioners] wished that those conditions be contained in an affidavit, which to the mind of the court would only delay the resolution of the motion, the court thereupon ordered that the statement of the petitioner be made orally but under oath, thus, [herein respondent] was placed in the witness stand.

Thereafter, the court ruled to deny the motion to quash the writ of execution filed by [herein petitioner] thru counsel for lack of merit and grant the prayer of the [herein respondent] that he be allowed to exercise his visitorial rights over the minor LUIS MAXWELL VIESCA today under the conditions imposed by the [herein petitioner], some of which are contained in the compromise agreement to which [herein respondent] promised under oath to obey the same (sic).

WHEREFORE, let the [herein respondent] DAVID GILINSKY exercise his visitorial rights over the minor LUIS MAXWELL VIESCA on the following conditions, to wit:

1. [Herein respondent] shall surrender to the court his passport everytime he is with his child; and

2. [Herein respondent] shall not secure/apply another passport (sic) for his son LUIS MAXWELL; and

3. [Herein petitioner] shall exercise her right to designate any person of suitable age to accompany the child whenever [herein respondent] would exercise his visitorial right.

[Herein Petitioner] is commanded to bring the minor child LUIS MAXWELL VIESCA to court not later than 3:00 o’clock this afternoon, to be pick-up (sic) by the [herein private respondent], upon the service of his order to the [herein petitioner] by the sheriff of this court.

Failure of the [herein petitioner] to comply with this order shall be a ground for contempt of this court AND SHALL BE DEALTH WITH SEVERELY.[15]

In addition, petitioner alleges that in the course of argument between the parties during this hearing, Judge Rebecca Mariano was not able to contain her bias against petitioner when she reproved the latter’s “stubborn refusal”[16] to comply with the Compromise Judgment. Believing that Judge Mariano had shown her partiality in favor of respondent, petitioner’s counsel moved in open court for her inhibition.[17] To this, Judge Mariano remarked:

COURT

ALRIGHT, before I inhibit myself, the MOTION TO QUASH is DENIED and my position granting visitorial rights of the child is GRANTED.[18]

Subsequently, respondent filed a Manifestation with Motion to Withdraw Motion for Temporary Relief of Support dated 25 April 2005[19] to which petitioner filed her Comment[20] as ordered by the trial court. In their pleadings, the parties presented disparate accounts of what transpired after the hearing on 15 April 2005.

According to respondent –

3. At 3:00 o’clock p.m. of said afternoon, [herein respondent], together with undersigned counsel, promptly went to the court to await the arrival of his son, Louis Maxwell.

4. At or about 4:00 o’clock, This Court’s sheriff informed undersigned counsel that he had just served a copy of the order upon the adverse counsel.

5. Undersigned counsel immediately conferred with Atty. E. Perez, [herein petitioner’s] counsel, to arrange the implementation of the above-quoted Order. Atty. Perez informed undersigned of his client’s inability to comply with the 3:00 o’clock mandate given that the Order was served to her only at 3:25 p.m., to which the undersigned counsel responded by saying that [herein petitioner] could still have Louis Maxwell brought to court even after the designated time.

6. Despite the clear and unequivocal tenor of This Court’s Order, Atty. Perez informed the undersigned counsel that since [herein petitioner] was still at work, his client could only bring the child at the lobby of Shangri-la hotel, Makati, at around 8:00 o’clock p.m. of that day.

Undersigned counsel immediately rejected the proposed arrangement for the same does not only run counter to the express mandate of This Court’s Order but more importantly would deprive [respondent] of spending quality time with his son – the raisaon d’etre of the stipulation in the Compromise Agreement providing an overnight stay. Undersigned counsel, moreover, explained that 8:00 o’clock p.m. is unreasonable and oppressive, not for [herein respondent] but more for the child, as the proposed time is the expected bedtime of three-year olds.

The adverse counsel, however, remained insistent that the child could only be brought by the [herein petitioner] at 8:00 o’clock p.m. and intimated that since the court order came as a “surprise” and was served at past 3:00 p.m., [herein respondent] should not expect [herein petitioner] to alter her schedule at such short notice.

The undersigned counsel finally relented to the 8:00 o’clock arrangement as it was clear that the adverse counsel and [herein petitioner]

was (sic) unaffected by [herein respondent’s] earnest desire to spend quality time with his son.

7. Albeit the representation [herein petitioner’s] counsel that his client committed to bring the child at 8:00 o’clock at Shangri-la, Makati, [herein petitioner] arrived at past 9:00 o’clock p.m. [Herein petitioner] not only brought the child but likewise brought with her the child’s grandmother (herein petitioner’s mother) and several of her friends. And instead of allowing only one person to act as guardian over Louis Maxwell, [herein petitioner] insisted on having both herself and her mother accompany Louis during his overnight stay with [herein respondent]. [Herein respondent] had no choice but to accede to such demand lest he be deprived once more of the enjoyment of his right.

x x x x

10. Furthermore, [herein petitioner] arrived at past 9 o’clock p.m. despite her undertaking that she will bring the child to [herein respondent] at 8 o’clock p.m.; [herein petitioner] also imposed on two guardians: herself and her mother, instead of only one guardian, as provided in the Compromise Judgment; The child was not allowed by [herein petitioner] to sleep in [herein respondent’s] room and was made to sleep in her separate room with her mother; finally, on the argument that overnight stay simply means sleeping over, [herein petitioner] left with Louis and her mother at 6 o’clock in the morning of 16 April 2005.[21]

On the other hand, petitioner countered –

“4. It is clear therefore that there was nothing in the oral argument nor in the Order given in open court that the child was supposed to be brought to Court at 3:00 p.m. that same day to accommodate [herein respondent’s] request for visitorial rights. Neither is there mention of the specific time in the Compromise Judgment. It appears that it was [herein respondent] who had prior notice or advanced information as to the contents of the Order from his Manifestation that –

“3. At 3:00 o’clock p.m. of said afternoon, [herein respondent], together with undersigned counsel, promptly went to the court to await the arrival of his son, Louis Maxwell.”

“5. Undersigned counsel received a copy of the Order dated 15 April 2005 only at 4:15 p.m. of that same day, hence, it was impossible for [herein petitioner] to comply with Order commanding her to bring the child “to court not later than 3:00 o’clock this afternoon.” Be that as it may, counsel immediately got in touch with [herein petitioner] to advise her to comply with the Order but [herein petitioner] stated she could not leave her office immediately because of prior commitment and instead suggested that she would bring the child to [herein respondent] Shangrila Hotel resident in the evening. Hereon counsel relayed the information/suggestion to [herein respondent’s] counsel and after a series of calls, an arrangement was made for the evening. What actually happened that evening, the parties had different accounts.

6. [Herein petitioner] maintains that –

a. She arrived late at little past 9:00 o’clock because of heavy traffic. It was a Friday, pay day and last day for income tax payment.

b. [Herein respondent] conveniently failed to mention that when [herein petitioner] arrived with the child Louis Maxwell at the hotel lobby, they were met by [herein respondent] together with three (3) Manulife insurance agents and a physician. [Herein respondent] and the insurance men tried almost to coercion to convince [herein petitioner] to agree that the child be subjected to medical examination that night so that [herein respondent] could secure a multimillion insurance policy for the child with David Gilinsky as the sole beneficiary. [Herein petitioner] naturally did not agree. [Herein petitioner] does not want to speculate but the circumstances, time and manner of taking the policy appears to be dubious. The fact remains that whatever desire of [herein respondent] to spend quality time with the child was clouded when he allowed these insurance men to get in the way when they should not be there in the first place.[22]

On 26 April 2005, petitioner filed an “Ex-Parte Reiterative Motion to Inhibit” claiming that Judge Mariano could no longer handle the case “with the cold neutrality of an impartial judge”[23] because of her statement pertaining to petitioner’s failure to abide by the Compromise Judgment. Respondent filed his opposition thereto, arguing that Judge Mariano’s remark was merely based on her observation of petitioner’s behavior and attitude during the proceedings of this case.[24]

On 17 May 2005, respondent once more filed a Motion for the Issuance of a Writ of Execution, contending that petitioner had repeatedly failed to comply with their agreement as regards his visitorial rights over Louis Maxwell. Respondent claimed that petitioner relied on the fact that as the Compromise Judgment did not state the time when Louis Maxwell should be in his company, she had insisted on an 8:00 o’clock p.m. to 6:00 o’clock a.m. schedule. Respondent also lamented petitioner’s habit of reneging, at the last minute, on their agreements over Louis Maxwell’s weekend visits with him and petitioner’s insistence that two guardians accompany Louis Maxwell during his overnight stays.[25] Thus, respondent prayed for the following:

a. To command [herein petitioner] to bring the child to either This Court or to the [herein respondent’s] residence not later than 3:00 p.m. of 20 May 2005 and for the child to be allowed to leave the company of the [herein respondent] at 4:00 p.m. of 21 May 2005; and

b. To direct the [herein petitioner] pay (sic) the amount of P295,000.00, as and by way of attorney’s fees.

Other relief just and equitable under the circumstances are likewise prayed for.[26]

In her Comment,[27] petitioner asserted that Judge Mariano should no longer rule on respondent’s motion, since there was a pending motion for her to inhibit. She likewise took the opportunity to refute respondent’s allegations with regard to her purported failure to observe the terms of the Compromise Judgment. Petitioner claimed that on 14 May 2005, Louis Maxwell fell sick and so she was unable to bring him to private respondent. In fact, petitioner’s counsel even sent a letter dated 16 May 2005 to respondent’s lawyer explaining her “version of the story.”[28] She also posed objection to respondent’s plea that Louis Maxwell be brought either to the trial court or to him since the child was still sick, and taking him out of the house would only worsen his condition. Moreover, petitioner argued that to grant respondent’s prayer would contravene the provisions of the Compromise Judgment under which his entitlement to the company of his son every weekend is a separate and distinct term from his right to spend a night with the child. She also claimed that as agreed upon, respondent should be the one to pick up the child and to return him to her. Finally, petitioner assailed respondent’s prayer for attorney’s fees for lack of basis.

Meanwhile, Judge Mariano issued an Order dated 16 May 2005, directing the parties to attend an in-chamber conference on 20 May 2005 relative to respondent’s Motion to Withdraw Support and petitioner’s Ex-Parte Reiterative Motion to Inhibit.[29]

In respondent’s Comment to the present Petition, it is claimed that the following terms were agreed upon by the parties during the in-chamber conference held on 20 May 2005:

a. The respective counsels of each party will meet on 26 May 2005 to agree on the time frame for the sleepover provision;

b. Pending the conclusion of the agreement, the child will be fetched from the Petitioner’s residence at 6 o’clock p.m. and will be brought back at 9 o’clock a.m. the following day, effective May 20-21 and May 27-28.

c. Private Respondent is to surrender his passport during these visits.

d. Petitioner’s mother will act as the designated guardian; and

e. The withdrawal of the parties’ respective motions, i.e., Petitioner’s Reiterative Motion to Inhibit and Motion to Withdraw Support.[30]

The 20-21 May 2005 sleepover proceeded as scheduled.[31] However, discord between the parties resurfaced when respondent was unable to spend time with Louis Maxwell on 27-28 May 2005. It appears that petitioner’s mother, who was the designated accompanying guardian, got sick and because of this, respondent did not enjoy the company of his son. Once more, respondent sought the trial court’s intervention through his Very Urgent Motion to Enforce and Enjoy Visitorial Rights dated 30 May 2005.[32] Respondent averred therein that on 27 May 2005, he sent his driver to fetch Louis Maxwell and his maternal grandmother pursuant to the agreement forged on 20 May 2005. When his driver reached petitioner’s residence, he was informed that Louis Maxwell and his grandmother could not go with him, as the grandmother was allegedly sick. Respondent claimed that Louis Maxwell’s grandmother was merely feigning sickness since she refused his offer to get medical help. Besides, had petitioner really intended to abide by their agreement, respondent argued that she could have appointed one of her brothers or her sister to accompany Louis Maxwell during his sleepover. Thus, respondent concluded that the totality of petitioner's conduct unmasked her lack of interest in observing the Compromise Judgment, particularly Clause II thereof. He therefore prayed for the following reliefs:

a) To allow (him) to have the company of his son on Wednesday, June 1, 2005, beginning 6:00 p.m. up to 9:00 a.m. of the following day. For this purpose, for this Court to further allow (him) to fetch his son at [herein petitioner’s] residence and bring him back at [herein petitioner’s] abode not later than 9:00 a.m. of the following day.

b) To designate the hours of 6:00 p.m. of any given Friday to 9:00 a.m. of the following day, as the regular day and hours at which the [herein respondent] can enjoy the company of his son pursuant to Clause II of the Compromise Judgment dated May 12, 2004.

c) To designate the Court Sheriff and/or any other court officer to act as the accompanying guardian of Louis Maxwell Viesca Gilinsky during the implementation of the prayed for relief under paragraph (a) hereof and of the sleep-over provision mentioned in Clause II of the Compromise Judgment.

d) To command [herein petitioner] to pay the amount of Thirty Thousand Pesos (P30,000.00), as and by way of cost of litigation, attorney’s fees and other expenses pursuant to Clause V of the Compromise Judgment.

Just and equitable reliefs prayed for under the circumstances.