On January 11, 2002, Eric Jonathan Yu (petitioner) filed a petition for habeas corpus before the Court of Appeals alleging that his estranged wife Caroline Tanchay-Yu (respondent) unlawfully withheld from him the custody of their minor child Bianca. The petition, which included a prayer for the award to him of the sole custody of Bianca, was docketed as CA-G.R. SP No. 68460.

Subsequently or on March 3, 2002, respondent filed a petition against petitioner before the Pasig Regional Trial Court (RTC) for declaration of nullity of marriage and dissolution of the absolute community of property. The petition included a prayer forthe award to her of the sole custody of Bianca and for the fixing of schedule of petitioner's visiting rights "subject only to the final and executory judgment of the Court of Appeals in CA-G.R. SP No. 68460."

In the meantime, the appellate court, by Resolution of March 21, 2002, awarded petitioner full custody of Bianca during the pendency of the habeas corpus case, with full visitation rights of respondent.

Petitioner and respondent later filed on April 5, 2002 before the appellate court a Joint Motion to Approve Interim Visitation Agreement which was, by Resolution of April 24, 2002, approved.

On April 18, 2002, respondent filed before the appellate court a Motion for the Modification of her visiting rights under the Interim Visitation Agreement. To the Motion, petitioner filed an Opposition with Motion to Cite Respondent for Contempt of Court in light of her filing of the petition for declaration of nullity of marriage before the Pasig RTC which, so he contended, constituted forum shopping.

By Resolution of July 5, 2002, the appellate court ordered respondent and her counsel to make the necessary amendment in her petition for declaration of nullity of marriage before the Pasig City RTC in so far as the custody aspect is concerned, under pain of contempt.

In compliance with the appellate court's Resolution of July 5, 2002, respondent filed a Motion to Admit Amended Petition before the Pasig RTC. She, however, later filed in December 2002 a Motion to Dismiss her petition, without prejudice, on the ground that since she started residing and conducting business at her new address at Pasay City, constraints on resources and her very busy schedule rendered her unable to devote the necessary time and attention to the petition. The Pasig RTC granted respondent's motion and accordingly dismissed the petition without prejudice, by Order of March 28, 2003.

On June 12, 2003, petitioner filed his own petition for declaration of nullity of marriage and dissolution of the absolute community of property before the Pasig RTC, docketed as JDRC Case No. 6190, with prayer for the award to him of the sole custody of Bianca, subject to the final resolution by the appellate court of his petition for habeas corpus.

The appellate court eventually dismissed the habeas corpus petition, by Resolution of July 3, 2003, for having become moot and academic, "the restraint on the liberty of the person alleged to be in restraint [having been] lifted."

In the meantime, respondent filed on July 24, 2003 before the Pasay RTC a petition for habeas corpus, which she denominated as "Amended Petition," praying for, among other things, the award of the sole custody to her of Bianca or, in the alternative, pending the hearing of the petition, the issuance of an order "replicating and reiterating the enforceability of the Interim Visiting Agreement" which was approved by the appellate court. The petition was docketed as SP Proc. No. 03-0048.

Not to be outdone, petitioner filed on July 25, 2003 before the Pasig RTC in his petition for declaration of nullity of marriage an urgent motion praying for the custody of Bianca for the duration of the case.

Acting on respondent's petition, Branch 113 of the Pasay RTC issued a Writ of Habeas Corpus, a Hold Departure Order and Summons addressed to petitioner, drawing petitioner to file a motion to dismiss the petition on the ground of lack of jurisdiction, failure to state a cause of action, forum shopping and litis pendentia, he citing the pending petition for declaration of nullity of marriage which he filed before the Pasig RTC.

The Pasay RTC, in the meantime, issued an Order of August 12, 2003 declaring that pending the disposition of respondent's petition, Bianca should stay with petitioner from Sunday afternoon to Saturday morning and "with the company of her mother from Saturday 1:00 in the afternoon up to Sunday 1:00 in the afternoon." To this Order, petitioner filed a Motion for Reconsideration, arguing that the Pasay RTC did not have jurisdiction to issue the same. He likewise filed a Manifestation of August 14, 2003 stating that he was constrained to submit to the said court's order but with the reservation that he was not submitting the issue of custody and himself to its jurisdiction.

Respondent soon filed her Answer with Counter-Petition on the nullity case before the Pasig RTC wherein she also prayed for the award of the sole custody to her of Bianca, subject to the final disposition of the habeas corpus petition which she filed before the Pasay RTC.

By Omnibus Order of October 30, 2003, the Pasig RTC asserted its jurisdiction over the custody aspect of the petition filed by petitioner and directed the parties to comply with the provisions of the Interim Visitation Agreement, unless they agreed to a new bilateral agreement bearing the approval of the court; and granted custody of Bianca to petitioner for the duration of the case.

The Pasay RTC in the meantime denied, by Order of November 27, 2003, petitioner's motion to dismiss. The court, citing Sombong v. Court of Appeals, ^[1] held that in custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of a writ of habeas corpus as a remedy; rather, a writ of habeas corpus is prosecuted for the purpose of determining the right of custody over the child. ^[2] And it further held that the filing before it of the habeas corpus case by respondent, who is a resident of Pasay, is well within the ambit of the provisions of A.M. No. 03-04-04-SC. ^[3]

On the issue of forum shopping, the Pasay RTC held that it is petitioner, not respondent, who committed forum shopping, he having filed (on June 12, 2003) the petition for declaration of nullity of marriage before the Pasig RTC while his petition for habeas corpus before the Court of Appeals was still pending. ^[4]

The Pasay RTC held that assuming arguendo that petitioner's filing before the Pasig RTC of the declaration of nullity of marriage case did not constitute forum shopping, it (the Pasay RTC) acquired jurisdiction over the custody issue ahead of the Pasig RTC, petitioner not having amended his petition before the Pasig RTC as soon as the Court of Appeals dismissed his petition for habeas corpus ^[5] (on July 3, 2003).

Finally, the Pasay RTC held that there was no litis pendentia because two elements thereof are lacking, namely, 1) identity of the rights asserted and reliefs prayed for, the relief being founded on the same facts, and 2) identity with respect to the two preceding particulars in the two cases such that any judgment that may be rendered in the pending case, regardless of which party is successful, would amount to res judicata in the other case. ^[6]

Petitioner thereupon assailed the Pasay RTC's denial of his Motion to Dismiss via Petition for Certiorari, Prohibition and Mandamus before the appellate court wherein he raised the following issues:

1. RESPONDENT JUDGE COMMITTED GRAVE ABUSE OF DISCRETION BY DENYING PETITIONER'S MOTION TO DISMISS DESPITE THE EVIDENT LACK OF JURISDICTION OVER THE SUBJECT MATTER OF CUSTODY, LITIS PENDENTIA, AND DELIBERATE AND WILLFUL FORUM-SHOPPING ON THE PART OF RESPONDENT CAROLINE T. YU. ^[7]
   
2. RESPONDENT JUDGE ACTED WHIMSICALLY, CAPRICIOUSLY AND ARBITRARILY IN ISSUING THE AUGUST 12, 2003 ORDER GRANTING RESPONDENT CAROLINE T. YU OVERNIGHT VISITATION RIGHTS OVER THE MINOR CHILD BIANCA AND DENYING PETITIONER'S URGENT MOTION FOR RECONSIDERATION OF THE SAID ORDER. ^[8] (Underscoring supplied)

By Decision of August 10, 2004, ^[9] the appellate court denied petitioner's petition, it holding that the assumption of jurisdiction by the Pasay RTC over the habeas corpus case does not constitute grave abuse of discretion; the filing by respondent before the Pasay RTC of a petition for habeas corpus could not be considered forum shopping in the strictest sense of the word as before she filed it after petitioner's petition for habeas corpus filed before the appellate court was dismissed; and it was petitioner who committed forum shopping when he filed the declaration of nullity of marriage case while his habeas corpus petition was still pending before the appellate court.

In fine, the appellate court held that since respondent filed the petition for declaration of nullity of marriage before the Pasig RTC during the pendency of the habeas corpus case he filed before the appellate court, whereas respondent filed the habeas corpus petition before the Pasay RTC on July 24, 2003 after the dismissal on July 3, 2003 by the appellate court of petitioner's habeas corpus case, jurisdiction over the issue custody of Bianca did not attach to the Pasig RTC.

As for the questioned order of the Pasay RTC which modified the Interim Visiting Agreement, the appellate court, noting that the proper remedy for the custody of Bianca was filed with the Pasay RTC, held that said court had the authority to issue the same.

Hence, the present petition filed by petitioner faulting the appellate court for

1. . . . . DECLARING THAT PETITIONER ERIC YU COMMITTED FORUM-SHOPPING IN FILLING THE PETITION FOR DECLARATION OF NULLITY OF MARRIAGE WITH PRAYER FOR CUSTODY BEFORE THE PASIG FAMILY COURT AND THAT THE LATTER COURT WAS BARRED FROM ACQUIRING JURISDICTION OVER THE CUSTODY ASPECT OF THE NULLITY CASE IN RECKLESS DISREGARD OF THE PRINCIPLE THAT THE FILING OF A PETITION FOR NULLITY OF MARRIAGE BEFORE THE FAMILY COURTS VESTS THE LATTER WITH EXCLUSIVE JURISDICTION TO DETERMINE THE NECESSARY ISSUE OF CUSTODY.
   
   
2. . . . . APPL[YING] THE LAW OF THE CASE DOCTRINE BY RULING THAT THE PASIG FAMILY COURT HAS NO JURISDICTION OVER THE CUSTODY ASPECT OF THE NULLITY CASE ON THE BASIS OF THE JULY 5, 2002 RESOLUTION OF THE COURT OF APPEALS IN CA GR SP NO. 68460 WHEN THE SAID RESOLUTION CLEARLY APPLIES ONLY TO THE NULLITY CASE FILED BY PRIVATE RESPONDENT ON MARCH 7, 2002 DOCKETED AS JDRC CASE NO. 5745 AND NOT TO HEREIN PETITIONER'S JUNE 12, 2003 PETITION FOR NULLITY DOCKETED AS JDRC CASE NO. 6190.
   
   
3. . . . . DECLARING THAT THE PASIG FAMILY COURT MUST YIELD TO THE JURISDICTION OF THE PASAY COURT INSOFAR AS THE ISSUE OF CUSTODY IS CONCERNED IN GRAVE VIOLATION OF THE DOCTRINE OF JUDICIAL STABILITY AND NON-INTERFERENCE.
   
   
4. . . . . RULING THAT PRIVATE RESPONDENT CAROLINE DID NOT COMMIT FORUM-SHOPING IN FILING THE HABEAS CORPUS CASE WITH PRAYER FOR CUSTODY BEFORE THE RESPONDENT PASAY COURT DESPITE THE FACT THAT AN EARLIER FILED PETITION FOR DECLARATION OF NULLITY OF MARRIAGE WITH PRAYER FOR CUSTODY IS STILL PENDING BEFORE THE PASIG FAMILY COURT WHEN THE FORMER CASE WAS INSTITUTED.
   
   
5. . . . . RULING THAT RESPONDENT CAROLINE YU DID NOT SUBMIT TO THE JURISDICTION OF THE PASIG FAMILY COURT BASED ON AN ERRONEOUS FACTUAL FINDING THAT SHE FILED ON AUGUST 25, 2003 AN OMNIBUS OPPOSITION IN PETITIONER'S ACTION FOR NULLITY BEFORE THE PASIG COURT. ^[10] (Underscoring supplied)

The petition is impressed with merit.

The main issue raised in the present petition is whether the question of custody over Bianca should be litigated before the Pasay RTC or before the Pasig RTC.

Judgment on the issue of custody in the nullity of marriage case before the Pasig RTC, regardless of which party would prevail, would constitute res judicata on the habeas corpus case before the Pasay RTC since the former has jurisdiction over the parties and the subject matter.

There is identity in the causes of action in Pasig and Pasay because there is identity in the facts and evidence essential to the resolution of the identical issue raised in both actions ^[11] whether it would serve the best interest of Bianca to be in the custody of petitioner rather than respondent or vice versa.

Since the ground invoked in the petition for declaration of nullity of marriage before the Pasig RTC is respondent's alleged psychological incapacity to perform her essential marital obligations ^[12] as provided in Article 36 of the Family Code, the evidence to support this cause of action necessarily involves evidence of respondent's fitness to take custody of Bianca. Thus, the elements of litis pendentia, to wit: a) identity of parties, or at least such as representing the same interest in both actions; b) identity of rights asserted and reliefs prayed for, the relief being founded on the same facts; and c) the identity in the two cases should be such that the judgment that may be rendered in the pending case would, regardless of which party is successful, amount to res judicata in the other, ^[13] are present.

Respondent argues in her Comment to the petition at bar that the Pasig RTC never acquired jurisdiction over the custody issue raised therein.

"[T]he subsequent dismissal of the habeas corpus petition by the Court of Appeals on 3 July 2003 could not have the effect of conferring jurisdiction over the issue on the Pasig court. For the Pasig court to acquire jurisdiction over the custody issue after the dismissal of the habeas corpus petition before the Court of Appeals, the rule is that petitioner must furnish the occasion for the acquisition of jurisdiction by repleading his cause of action for custody and invoking said cause anew." ^[14] (Emphasis and underscoring supplied)

And respondent cites Caluag v. Pecson, ^[15] wherein this Court held:

Jurisdiction of the subject matter of a particular case is something more than the general power conferred by law upon a court to take cognizance of cases of the general class to which the particular case belongs. It is not enough that a court has power in abstract to try and decide the class litigations [sic] to which a case belongs; it is necessary that said power be properly invoked, or called into activity, by the filing of a petition, or complaint or other appropriate pleading. (Underscoring supplied by Caroline.) ^[16]

Specific provisions of law govern the case at bar, however. Thus Articles 49 and 50 of the Family Code provide:

Art. 49. During the pendency of the action [for annulment or declaration of nullity of marriage] and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. x x x It shall also provide for appropriate visitation rights of the other parent. (Emphasis and underscoring supplied) ^[17]

Art. 50. x x x x

The final judgment in such cases [for the annulment or declaration of nullity of marriage] shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such other matters had been adjudicated in previous judicial proceedings." (Emphasis and underscoring added)

By petitioner's filing of the case for declaration of nullity of marriage before the Pasig RTC he automatically submitted the issue of the custody of Bianca as an incident thereof. After the appellate court subsequently dismissed the habeas corpus case, there was no need for petitioner to replead his prayer for custody for, as above-quoted provisions of the Family Code provide, the custody issue in a declaration of nullity case is deemed pleaded. That that is so gains light from Section 21 of the "Rule on Declaration Of Absolute Nullity Of Void Marriages and Annulment of Voidable Marriages" ^[18] which provides:

Sec. 21. Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive legitimes. Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody, support of common children and delivery of their presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in previous judicial proceedings. (Emphasis and underscoring supplied)

Since this immediately-quoted provision directs the court taking jurisdiction over a petition for declaration of nullity of marriage to resolve the custody of common children, by mere motion of either party, it could only mean that the filing of a new action is not necessary for the court to consider the issue of custody of a minor. ^[19]

The only explicit exception to the earlier-quoted second paragraph of Art. 50 of the Family Code is when "such matters had been adjudicated in previous judicial proceedings," which is not the case here.

The elements of litis pendentia having been established, the more appropriate action criterion guides this Court in deciding which of the two pending actions to abate. ^[20]

The petition filed by petitioner for the declaration of nullity of marriage before the Pasig RTC is the more appropriate action to determine the issue of who between the parties should have custody over Bianca in view of the express provision of the second paragraph of Article 50 of the Family Code. This must be so in line with the policy of avoiding multiplicity of suits. ^[21]

The appellate court thus erroneously applied the law of the case doctrine when it ruled that in its July 5, 2002 Resolution that the pendency of the habeas corpus petition in CA-G.R. SP No. 68460 prevented the Pasig RTC from acquiring jurisdiction over the custody aspect of petitioner's petition for declaration of nullity. The factual circumstances of the case refelected above do not justify the application of the law of the case doctrine which has been defined as follows:

Law of the case has been defined as the opinion delivered on a former appeal. It is a term applied to an established rule that when an appellate court passes on a question and remands the case to the lower court for further proceedings, the question there settled becomes the law of the case upon subsequent appeal. It means that whatever is once irrevocably established as the controlling legal rule or decision between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court" (Emphasis and underscoring supplied, italics in the original)^[22]

WHEREFORE, the petition is GRANTED. The August 10, 2004 decision of the Court of Appeals is REVERSED and SET ASIDE, and another is entered DISMISSING Pasay City Regional Trial Court Sp. Proc. No. 03-0048-CFM and ordering Branch 69 of Pasig City Regional Trial Court to continue, with dispatch, the proceedings in JDRC No. 6190.

SO ORDERED.

Quisumbing, (Chairperson), Carpio, and Tinga, JJ., concur.

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^[1] 322 Phil. 737 (1996).

^[2] Id. at 750.

^[3] "Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Minors," approved by the Supreme Court en banc on 22 April 2003, effective 15 May 2003.

^[4] RTC Records, Vol. 2, p. 171.

^[5] Id. at 171-172.

^[6] Id. at 172. Citation omitted.

^[7] CA rollo, p. 17.

^[8] Id. at 30.

^[9] Penned by Justice Jose C. Reyes, Jr. with Justices Ruben T. Reyes and Perlita J. Tria Tirona concurring; Rollo, p. 55, Annex "A."

^[10] Rollo, p. 21.

^[11] Vide Escareal v. Philippine Airlines, Inc., G.R. No. 151922, April 7, 2005, 455 SCRA 119, 131.

^[12] CA rollo, pp. 87-91.

^[13] Vitrionics Computers, Inc. v. RTC, Br. 63, Makati, G.R. No. 104019, 217 SCRA 517, 529. For the elements of res judicata, vide Escareal v. Philippine Airlines, Inc., supra note 11 at 130.

^[14] Rollo, p. 365.

^[15] 82 Phil. 8 (1948).

^[16] Id. at 12-13.

^[17] Vide Pablo-Gualberto v. Gualberto V, G.R. Nos. 154994 and 156254, June 28, 2005, 461 SCRA 450, 469.

^[18] A.M. No. 02-11-10-SC, approved by the Supreme Court En Banc on March 4, 2003, effective on March 15, 2003.

^[19] Vide Asset Privatization Trust v. Court of Appeals, G.R. No. 121171, December 29, 1998, 300 SCRA 579, 599:

By its own action, Branch 62 had lost jurisdiction over the case. It could not have reacquired jurisdiction over the said case on mere motion of one of the parties. The Rules of Court is specific on how a new case may be initiated and such is not done by mere motion in a particular branch of the RTC. (Emphasis added)

^[20] Vide Victronics Computers, Inc. v. RTC, Br. 63, Makati, G.R. No. 104019, January 25, 1993, 217 SCRA 517, 533.

^[21] Vide Calahat v. Intermediate Appellate Court, G.R. No. 75257-58, February 15, 1995, 241 SCRA 356, 360; Serrano v. Court of Appeals, G.R. No. 77808, September 12, 1990, 189 SCRA 440, 444.

^[22] Cucueco v. Court of Appeals, G.R. No. 139278, October 25, 2004, 441 SCRA 290, 300-301. (Citation omitted)