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THE FAMILY (ARTICLES 149-151) Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 58010.

March 31, 1993. EMILIA O'LACO and HUCO LUNA, petitioners, vs. VALENTIN CO CHO CHIT, O LAY KIA and COURT OF APPEALS, respondents. Sergio L. Guadiz for petitioners. Norberto J . Quisumbing & Associates for private respondents. BELLOSILLO, J p: History is replete with cases of erstwhile close family relations put asunder by property disputes. This is one of them. It involves half-sisters each claiming ownership over a parcel of land. While petitioner Emilia O'Laco asserts that she merely left the certificate of title covering the property with private respondent O Lay Kia for safekeeping, the latter who is the former's older sister insists that the title was in her possession because she and her husband bought the property from their conjugal funds. To be resolved therefore is the issue of whether a resulting trust was intended by them in the acquisition of the property. The trial court declared that there was no trust relation of any sort between the sisters. 1 The Court of Appeals ruled otherwise. 2 Hence, the instant petition for review on certiorari of the decision of the appellate court together with its resolution denying reconsideration. 3 It appears that on 31 May 1943, the Philippine Sugar Estate Development Company, Ltd., sold a parcel of land, Lot No. 5, Block No. 10, Plan Psu-10038, situated at Oroquieta St., Sta. Cruz, Manila, with the Deed of Absolute Sale naming Emilia O'Laco as vendee; thereafter, Transfer Certificate of Title No. 66456 was issued in her name. On 17 May 1960, private respondentspouses Valentin Co Cho Chit and O Lay Wa learned from the newspapers that Emilia O'Laco sold the same property to the Roman Catholic Archbishop of Manila for P230,000.00, with assumption of the real estate mortgage constituted thereon. 4 On 22 June 1960, respondent-spouses Valentin Co Cho Chit and O Lay Kia sued petitioner-spouses Emilia O'Laco and Hugo

Luna to recover the purchase price of the land before the then Court of First Instance of Rizal, respondent-spouses asserting that petitioner Emilia O'Laco knew that they were the real vendees of the Oroquieta property sold in 1943 by Philippine Sugar Estate Development Company, Ltd., and that the legal title thereto was merely placed in her name. They contend that Emilia O'Laco breached the trust when she sold the land to the Roman Catholic Archbishop of Manila. Meanwhile, they asked the trial court to garnish all the amounts still due and payable to petitionerspouses arising from the sale, which was granted on 30 June 1960. 5 Petitioner-spouses deny the existence of any form of trust relation. They aver that Emilia O'Laco actually bought the property with her own money; that she left the Deed of Absolute Sale and the corresponding title with respondent-spouses merely for safekeeping; that when she asked for the return of the documents evidencing her ownership, respondent-spouses told her that these were misplaced or lost; and, that in view of the loss, she filed a petition for issuance of a new title, and on 18 August 1944 the then Court of First Instance of Manila granted her petition. On 20 September 1976, finding no trust relation between the parties, the trial court dismissed the complaint together with the counterclaim. Petitioners and respondents appealed. On 9 April 1981, the Court of Appeals set aside the decision of the trial court thus ". . . We set aside the decision of the lower court dated September 20, 1976 and the order of January 5, 1977 and another one is hereby entered ordering the defendantsappellees to pay plaintiffs-appellants jointly and severally the sum of P230,000.00 representing the value of the property subject of the sale with assumption of mortgage to the Roman Catholic Archbishop of Manila with legal interest from the filing of the complaint until fully paid, the sum of P10,000.00 as attorney's fees, plus costs." On 7 August 1981, the Court of Appeals denied reconsideration of its decision, prompting petitioners to come to this Court for relief. Petitioners contend that the present action should have been dismissed. They argue that the complaint fails to allege that earnest efforts toward a compromise were exerted considering that the suit is between members of the same family, and no trust relation exists between them. Even

assuming ex argumenti that there is such a relation, petitioners further argue, respondents are already barred by laches. We are not persuaded. Admittedly, the present action is between members of the same family since petitioner Emilia O'Laco and respondent O Lay Kia are half-sisters. Consequently, there should be an averment in the complaint that earnest efforts toward a compromise have been made, pursuant to Art. 222 of the New Civil Code, 6 or a motion to dismiss could have been filed under Sec. 1, par. (j), Rule 16, of the Rules of Court. 7 For, it is well-settled that the attempt to compromise as well as the inability to succeed is a condition precedent to the filing of a suit between members of the same family. 8 Hence, the defect in the complaint is assailable at any stage of the proceedings, even on appeal, for lack of cause of action. 9 But, plaintiff may be allowed to amend his complaint to correct the defect if the amendment does not actually confer jurisdiction on the court in which the action is filed, i.e., if the cause of action was originally within that court's jurisdiction. 10 In such case, the amendment is only to cure the perceived defect in the complaint, thus may be allowed. In the case before Us, while respondentspouses did not formally amend their complaint, they were nonetheless allowed to introduce evidence purporting to show that earnest efforts toward a compromise had been made, that is, respondent O Lay Kia importuned Emilia O'Laco and pressed her for the transfer of the title of the Oroquieta property in the name of spouses O Lay Kia and Valentin Co Cho Chit, just before Emilia's marriage to Hugo Luna. 11 But, instead of transferring the title as requested, Emilia sold the property to the Roman Catholic Archbishop of Manila. This testimony was not objected to by petitioner-spouses. Hence, the complaint was deemed accordingly amended to conform to the evidence, 12 pursuant to Sec. 5, Rule 10 of the Rules of Court which reads "SECTION 5. Amendment to conform to or authorize presentation of evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects, as, if they had been raised in the pleadings . . ." (emphasis supplied). Indeed, if the defendant permits evidence to be introduced without objection and which supplies the necessary allegations of a defective complaint, then the evidence is deemed to have the effect of curing the defects of the complaint. 13 The

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insufficiency of the allegations in the complaint is deemed ipso facto rectified. 14 But the more crucial issue before Us is whether there is a trust relation between the parties in contemplation of law. We find that there is. By definition, trust relations between parties may either be express or implied. 15 Express trusts are those which are created by the direct and positive acts of the parties, by some writing or deed, or will, or by words evincing an intention to create a trust. 16 Implied trusts are those which, without being express, are deducible from the nature of the transaction as matters of intent, or which are superinduced on the transaction by operation of law as matters of equity, independently of the particular intention of the parties.17 Implied trusts may either be resulting or constructive trusts, both coming into being by operation of law. 18 Resulting trusts are based on the equitable doctrine that valuable consideration and not legal title determines the equitable title or interest 19 and are presumed always to have been contemplated by the parties. They arise from the nature or circumstances of the consideration involved in a transaction whereby one person thereby becomes invested with legal title but is obligated in equity to hold his legal title for the benefit of another. 20 On the other hand, constructive trusts are created by the construction of equity in order to satisfy the demands of justice 21 and prevent unjust enrichment. They arise contrary to intention against one who, by fraud, duress or abuse of confidence, obtains or holds the legal right to property which he ought not, in equity and good conscience, to hold. 22 Specific examples of resulting trusts may be found in the Civil Code, particularly Arts. 1448, 1449, 1451,1452 and 1453, 23 while constructive trusts are illustrated in Arts. 1450, 1454, 1455 and 1456. 24 Unlike express trusts concerning immovables or any interest therein which cannot be proved by parol evidence, 25 implied trusts may be established by oral evidence. 26 However, in order to establish an implied trust in real property by parol evidence, the proof should be as fully convincing as if the acts giving rise to the trust obligation were proven by an authentic document. 27 It cannot be established upon vague and inconclusive proof. 28 After a thorough review of the evidence on record, We hold that a resulting trust was indeed intended by the parties under Art. 1448 of the New Civil Code which states

"ARTICLE 1448. There is an implied trust when property is sold, and the legal estate is granted to one party but the price is paid by another for the purpose of having the beneficial interest of the property. The former is the trustee, while the latter is the beneficiary . . ." (emphasis supplied). First. As stipulated by the parties, the document of sale, the owner's duplicate copy of the certificate of title, insurance policies, receipt of initial premium of insurance coverage and real estate tax receipts ware all in the possession of respondent spouses which they offered in evidence. As emphatically asserted by respondent O Lay Kia, the reason why these documents of ownership remained with her is that the land in question belonged to her. 29 Indeed, there can be no persuasive rationalization for the possession of these documents of ownership by respondentspouses for seventeen (17) years after the Oroquieta property was purchased in 1943 than that of precluding its possible sale, alienation or conveyance by Emilia O'Laco, absent any machination or fraud. This continued possession of the documents, together with other corroborating evidence spread on record, strongly suggests that Emilia O'Laco merely held the Oroquieta property in trust for respondent-spouses. Second. It may be worth to mention that before buying the Oroquieta property, respondent-spouses purchased another property situated in Kusang-Loob, Sta. Cruz, Manila, where the certificate of title was placed in the name of Ambrosio O'Laco, older brother of Emilia, under similar or identical circumstances. The testimony of former counsel for respondent-spouses, then Associate Justice Antonio G. Lucero of the Court of Appeals, is enlightening "Q In the same conversation he told you how he would buy the property (referring to the Oroquieta property), he and his wife? "A Yes, Sir, he did. "Q What did he say? xxx xxx xxx "A He said he and his wife has (sic) already acquired by purchase a certain property located at Kusang-Loob, Sta. Cruz, Manila. He told me he would like to place the Oroquieta Maternity Hospital in case the negotiation materialize(s) in the name of a sister of his wife (O'Laco)" (emphasis supplied). 30

On the part of respondent-spouses, they explained that the reason why they did not place these Oroquieta and Kusang-Loob properties in their name was that being Chinese nationals at the time of the purchase they did not want to execute the required affidavit to the effect that they were allies of the Japanese. 31 Since O Lay Kia took care of Emilia who was still young when her mother died, 32 respondentspouses did not hesitate to place the title of the Oroquieta property in Emilia's name. Quite significantly, respondent-spouses also instituted an action for reconveyance against Ambrosio O'Laco when the latter claimed the Kusang-Loob property as his own. A similar stipulation of facts was likewise entered, i.e., respondent-spouses had in their possession documents showing ownership of the Kusang-Loob property which they offered in evidence. In that case, the decision of the trial court, now final and executory, declared respondent-spouses as owners of the Kusang-Loob property and ordered Ambrosio O'Laco to reconvey it to them. 33 Incidentally, Ambrosio O'Laco thus charged respondent spouses Valentin Co Cho Cit and O Lay Kia before the Anti-Dummy Board, docketed as Case No. 2424, for their acquisition of the Kusang-Loob and Oroquieta properties. 34 He claimed that respondent-spouses utilized his name in buying the Kusang-Loob property while that of petitioner O'Laco was used in the purchase of the Oroquieta property. In effect, there was an implied admission by Ambrosio that his sister Emilia, like him, was merely used as a dummy. However, the Anti-Dummy Board exonerated respondentspouses since the purchases were made in 1943, or during World War II, when the Anti-Dummy Law was not enforceable. Third. The circumstances by which Emilia O'Laco obtained a new title by reason of the alleged loss of the old title then in the possession of respondent-spouses cast serious doubt on the veracity of her ownership. The petitions respectively filed by Emilia O'Laco and Ambrosio O'Laco for the Oroquieta and the Kusang-Loob properties were both granted on the same day, 18 August 1944, by the then Court of First Instance of Manila. These orders were recorded in the Primary Entry Book of the Register of Deeds of Manila at the same time, 2:35 o'clock in the afternoon of 1 September 1944, in consecutive entries, Entries Nos. 246117-18. 35 This coincidence lends credence to the position of respondent-spouses that there was in fact a conspiracy between the siblings Ambrosio and Emilia to defraud and deprive respondents of their title to the Oroquieta and Kusang-Loob properties.

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Fourth. Until the sale of the Oroquieta property to the Roman Catholic Archbishop of Manila, petitioner Emilia O'Laco actually recognized the trust. Specifically, when respondent spouses learned that Emilia was getting married to Hugo, O Lay Kia asked her to have the title to the property already transferred to her and her husband Valentin, and Emilia assured her that "would be arranged (maaayos na)" after her wedding. 36 Her answer was an express recognition of the trust, otherwise, she would have refused the request outright. Petitioners never objected to this evidence; nor did they attempt to controvert it. Fifth. The trial court itself determined that "Valentin Co Cho Chit and O Lay Kia had some money with which they could buy the property." 37 In fact, Valentin was the Chief Mechanic of the Paniqui Sugar Mills, was engaged in the buy and sell business, operated a gasoline station, and owned an auto supply store as well as a ten-door apartment in Caloocan City. 38 In contrast, Emilia O'Laco failed to convince the Court that she was financially capable of purchasing the Oroquieta property. In fact, she opened a bank account only in 1946 and likewise began filing income tax returns that same year, 39 while the property in question was bought in 1943. Respondentspouses even helped Emilia and her brothers in their expenses and livelihood. Emilia could only give a vague account on how she raised the money for the purchase of the property. Her narration of the transaction of sale abounds with "I don't know" and "I don't remember." 40 Having established a resulting trust between the parties, the next question is whether prescription has set in. As differentiated from constructive trusts, where the settled rule is that prescription may supervene, in resulting trust, the rule of imprescriptibility may apply for as long as the trustee has not repudiated the trust. 41 Once the resulting trust is repudiated, however, it is converted into a constructive trust and is subject to prescription. A resulting trust is repudiated if the following requisites concur: (a) the trustee has performed unequivocal acts of repudiation amounting to an ouster of the cestui qui trust; (b) such positive acts of repudiation have been made known to the cestui qui trust; and, (c) the evidence thereon is clear and convincing. 42 In Tale v. Court of Appeals 43 the Court categorically ruled that an action for reconveyance based on an implied or constructive trust must perforce prescribe in ten (10) years, and not otherwise, thereby modifying previous decisions

holding that the prescriptive period was four (4) years. Neither the registration of the Oroquieta property in the name of petitioner Emilia O'Laco nor the issuance of a new Torrens title in 1944 in her name in lieu of the alleged loss of the original may be made the basis for the commencement of the prescriptive period. For, the issuance of the Torrens title in the name of Emilia O'Laco could not be considered adverse, much less fraudulent. Precisely, although the property was bought by respondent-spouses, the legal title was placed in the name of Emilia O'Laco. The transfer of the Torrens title in her name was only in consonance with the deed of sale in her favor. Consequently, there was no cause for any alarm on the part of respondent-spouses. As late as 1959, or just before she got married, Emilia continued to recognize the ownership of respondent-spouses over the Oroquieta property. Thus, until that point, respondent-spouses were not aware of any act of Emilia which would convey to them the idea that she was repudiating the resulting trust. The second requisite is therefore absent. Hence, prescription did not begin to run until the sale of the Oroquieta property, which was clearly an act of repudiation. But immediately after Emilia sold the Oroquieta property which is obviously a disavowal of the resulting trust, respondent-spouses instituted the present suit for breach of trust. Correspondingly, laches cannot lie against them. After all, so long as the trustee recognizes the trust, the beneficiary may rely upon the recognition, and ordinarily will not be in fault for omitting to bring an action to enforce his rights. 44 There is no running of the prescriptive period if the trustee expressly recognizes the resulting trust. 45 Since the complaint for breach of trust was filed by respondent-spouses two (2) months after acquiring knowledge of the sale, the action therefore has not yet prescribed. WHEREFORE, the Petition for Review on Certiorari is DENIED. The Decision of the Court of Appeals of 9 April 1981, which reversed the trial court, is AFFIRMED. Costs against petitioners. SO ORDERED. Cruz , Grio-Aquino and Quiason, JJ ., concur. Republic of the Philippines SUPREME COURT Manila

FIRST DIVISION G.R. No. 109068 January 10, 1994 GAUDENCIO GUERRERO, petitioner, vs. REGIONAL TRIAL COURT OF ILOCOS NORTE, BR. XVI, JUDGE LUIS B. BELLO, JR., PRESIDING, and PEDRO G. HERNANDO, respondents. Juan Jacito for petitioner. Alipio V. Flores for private respondent. BELLOSILLO, J.: Filed by petitioner as an accion publicana 1 against private respondent, this case assumed another dimension when it was dismissed by respondent Judge on the ground that the parties being brother-inlaw the complaint should have alleged that earnest efforts were first exerted towards a compromise. Admittedly, the complaint does not allege that the parties exerted earnest towards a compromise and that the same failed. However, private respondent Pedro G. Hernando apparently overlooked this alleged defect since he did not file any motion to dismiss nor attack the complaint on this ground in his answer. It was only on 7 December 1992, at the pre-trial conference, that the relationship of petitioner Gaudencio Guerrero and respondent Hernando was noted by respondent Judge Luis B. Bello, Jr., they being married to half-sisters hence are brothers-in-law, and on the basis thereof respondent Judge gave petitioner five (5) days "to file his motion and amended complaint" to allege that the parties were very close relatives, their respective wives being sisters, and that the complaint to be maintained should allege that earnest efforts towards a compromise were exerted but failed. Apparently, respondent Judge considered this deficiency a jurisdictional defect. On 11 December 1992, Guerrero moved to reconsider the 7 December 1992 Order claiming that since brothers by affinity are not members of the same family, he was not required to exert efforts towards a compromise. Guerrero likewise argued that Hernando was precluded from raising this issue since he did not file a motion to dismiss nor assert the same as an affirmative defense in his answer. On 22 December 1992, respondent Judge denied the motion for reconsideration holding that "[f]ailure to allege that earnest

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efforts towards a compromise is jurisdictional such that for failure to allege same the court would be deprived of its jurisdiction to take cognizance of the case." He warned that unless the complaint was amended within five (5) days the case would be dismissed. On 29 January 1993, the 5-day period having expired without Guerrero amending his complaint, respondent Judge dismissed the case, declaring the dismissal however to be without prejudice. Guerrero appeals by way of this petition for review the dismissal by the court a quo. He raises these legal issues: (a) whether brothers by affinity are considered members of the same family contemplated in Art. 217, par. (4), and Art. 222 of the New Civil Code, as well as under Sec. 1, par. (j), Rule 16, of the Rules of Court requiring earnest efforts towards a compromise before a suit between them may be instituted and maintained; and, (b) whether the absence of an allegation in the complaint that earnest efforts towards a compromise were exerted, which efforts failed, is a ground for dismissal for lack of jurisdiction. The Constitution protects the sanctity of the family and endeavors to strengthen it as a basic autonomous social institution. 2 This is also embodied in Art. 149, 3 and given flesh in Art. 151, of the Family Code, which provides: Art. 151. No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same had failed. If it is shown that no such efforts were in fact made, the case must be dismissed. This rule shall not apply to cases which may not be the subject of compromise under the Civil Code. Considering that Art. 151 herein-quoted starts with the negative word "No", the requirement is mandatory 4 that the complaint or petition, which must be verified, should allege that earnest efforts

towards a compromise have been made but that the same failed, so that "[i]f it is shown that no such efforts were in fact made, the case must be dismissed." Further, Art. 151 is contemplated by Sec. 1, par. (j), Rule 16, of the Rules of Court which provides as a ground for motion to dismiss "(t)hat the suit is between members of the same family and no earnest efforts towards a compromise have been made." The Code Commission, which drafted the precursor provision in the Civil Code, explains the reason for the requirement that earnest efforts at compromise be first exerted before a complaint is given due course This rule is introduced because it is difficult to imagine a sadder and more tragic spectacle than a litigation between members of the same family. It is necessary that every effort should be made toward a compromise before a litigation is allowed to breed hate and passion in the family. It is known that a lawsuit between close relatives generates deeper bitterness than between strangers . . . A litigation in a family is to be lamented far more than a lawsuit between strangers . . .5 But the instant case presents no occasion for the application of the above-quoted provisions. As early as two decades ago, we already ruled in Gayon v. Gayon 6 that the enumeration of "brothers and sisters" as members of the same family does not comprehend "sistersin-law". In that case, then Chief Justice Concepcion emphasized that "sisters-inlaw" (hence, also "brothers-in-law") are not listed under Art. 217 of the New Civil Code as members of the same family. Since Art. 150 of the Family Code repeats essentially the same enumeration of "members of the family", we find no reason to alter existing jurisprudence on the matter. Consequently, the court a quo erred in ruling that petitioner Guerrero, being a brother-in-law of private respondent Hernando, was required to exert earnest efforts towards a compromise before filing the present suit.

In his Comment, Hernando argues that ". . . although both wives of the parties were not impleaded, it remains a truism that being spouses of the contending parties, and the litigation involves ownership of real property, the spouses' interest and participation in the land in question cannot be denied, making the suit still a suit between half-sisters . . ." 7 Finding this argument preposterous, Guerrero counters in his Reply that his "wife has no actual interest and participation in the land subject of the . . . suit, which the petitioner bought, according to his complaint, before he married his wife." 8 This factual controversy however may be best left to the court a quo to resolve when it resumes hearing the case. As regards the second issue, we need only reiterate our ruling in O'Laco v. Co Cho Chit, 9 citing Mendoza v. Court of Appeals, 10 that the attempt to compromise as well as the inability to succeed is a condition precedent to the filing of a suit between members of the same family, the absence of such allegation in the complaint being assailable at any stage of the proceeding, even on appeal, for lack of cause of action. It is not therefore correct, as petitioner contends, that private respondent may be deemed to have waived the aforesaid defect in failing to move or dismiss or raise the same in the Answer. On the other hand, we cannot sustain the proposition of private respondent that the case was, after all, also dismissed pursuant to Sec. 3, Rule 17, of the Rules of Court 11 for failure of petitioner to comply with the court's order to amend his complaint. A review of the assailed orders does not show any directive which Guerrero supposedly defied. The Order of 7 December 1992 merely gave Guerrero five (5) days to file his motion and amended complaint with a reminder that the complaint failed to allege that earnest efforts were exerted towards a compromise. The Order of 22 December 1992, which denied Guerrero's motion for reconsideration, simply stated that "Plaintiff if it (sic) so desire must amend the complaint otherwise, the court will have to dismiss the case (emphasis supplied) . . ." The Order of 29 January 1993 dismissing the case without prejudice only made reference to an earlier order "admonishing" counsel for Guerrero to amend the complaint, and an "admonition" is not synonymous with "order". Moreover, since the assailed orders do not find support in our jurisprudence but, on the other hand, are based on an erroneous interpretation and application of the law,

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petitioner could not be bound to comply with them. 12 WHEREFORE, the petition is GRANTED and the appealed Orders of 7 December 1992, 22 December 1992 and 29 January 1993 are SET ASIDE. The Regional Trial Court of Laoag City, Branch 16, or whichever branch of the court the case may now be assigned, is directed to continue with Civil Case No. 10084-16 with deliberate dispatch. SO ORDERED. Cruz, Davide, Jr. and Quiason, JJ., concur. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. NO. 154132 August 31, 2006 HIYAS SAVINGS and LOAN BANK, INC. Petitioner, vs. HON. EDMUNDO T. ACUA, in his capacity as Pairing Judge of Regional Trial Court, Branch 122, Caloocan City, and ALBERTO MORENO, Respondent. DECISION AUSTRIA-MARTINEZ, J.: Before the Court is a petition for certiorari under Rule 65 of the Rules of Court seeking to nullify the Orders 1 of the Regional Trial Court (RTC) of Caloocan City, Branch 122, dated November 8, 2001 2 and May 7, 2002 3denying herein petitioners Motion to Dismiss and Motion for Partial Reconsideration, respectively. The antecedent facts are as follows: On November 24, 2000, Alberto Moreno (private respondent) filed with the RTC of Caloocan City a complaint against Hiyas Savings and Loan Bank, Inc. (petitioner), his wife Remedios, the spouses Felipe and Maria Owe and the Register of Deeds of Caloocan City for cancellation of mortgage contending that he did not secure any loan from petitioner, nor did he sign or execute any contract of mortgage in its favor; that his wife, acting in conspiracy with Hiyas and the spouses Owe, who were the ones that benefited from the loan, made it appear that he signed the contract of mortgage; that he could not have executed the said contract because he was then working abroad.4

On May 17, 2001, petitioner filed a Motion to Dismiss on the ground that private respondent failed to comply with Article 151 of the Family Code wherein it is provided that no suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed. Petitioner contends that since the complaint does not contain any fact or averment that earnest efforts toward a compromise had been made prior to its institution, then the complaint should be dismissed for lack of cause of action. 5 Private respondent filed his Comment on the Motion to Dismiss with Motion to Strike Out and to Declare Defendants in Default. He argues that in cases where one of the parties is not a member of the same family as contemplated under Article 150 of the Family Code, failure to allege in the complaint that earnest efforts toward a compromise had been made by the plaintiff before filing the complaint is not a ground for a motion to dismiss. Alberto asserts that since three of the party-defendants are not members of his family the ground relied upon by Hiyas in its Motion to Dismiss is inapplicable and unavailable. Alberto also prayed that defendants be declared in default for their failure to file their answer on time. 6 Petitioner filed its Reply to the Comment with Opposition to the Motion to Strike and to Declare Defendants in Default. 7 Private respondent, in turn, filed his Rejoinder. 8 On November 8, 2001, the RTC issued the first of its assailed Orders denying the Motion to Dismiss, thus: The court agrees with plaintiff that earnest efforts towards a compromise is not required before the filing of the instant case considering that the above-entitled case involves parties who are strangers to the family. As aptly pointed out in the cases cited by plaintiff, Magbaleta v. G[o]nong, L44903, April 25, 1977 and Mendez v. [B]iangon, L-32159, October 28, 1977, if one of the parties is a stranger, failure to allege in the complaint that earnest efforts towards a compromise had been made by plaintiff before filing the complaint, is not a ground for motion to dismiss. Insofar as plaintiffs prayer for declaration of default against defendants, the same is meritorious only with respect to defendants Remedios Moreno and the Register of Deeds of Kaloocan City. A declaration of default against defendant bank is not proper considering that the filing of the Motion to Dismiss by said defendant

operates to stop the running of the period within which to file the required Answer. 9 Petitioner filed a Motion for Partial Reconsideration. 10 Private respondent filed his Comment, 11 after which petitioner filed its Reply. 12 Thereafter, private respondent filed his Rejoinder. 13 On May 7, 2002, the RTC issued the second assailed Order denying petitioners Motion for Partial Reconsideration. The trial court ruled: Reiterating the resolution of the court, dated November 8, 2001, considering that the above-entitled case involves parties who are strangers to the family, failure to allege in the complaint that earnest efforts towards a compromise were made by plaintiff, is not a ground for a Motion to Dismiss. Additionally, the court agrees with plaintiff that inasmuch as it is defendant Remedios Moreno who stands to be benefited by Art. 151 of the Family Code, being a member of the same family as that of plaintiff, only she may invoke said Art. 151. 14 xxx Hence, the instant Petition for Certiorari on the following grounds: I. Public respondent committed grave abuse of discretion amounting to lack or in excess of jurisdiction when he ruled that lack of earnest efforts toward a compromise is not a ground for a motion to dismiss in suits between husband and wife when other parties who are strangers to the family are involved in the suit. Corollarily, public respondent committed grave abuse of discretion amounting to lack or in excess of jurisdiction when he applied the decision in the case of Magbaleta v. Gonong instead of the ruling in the case of De Guzman v. Genato. II. Public respondent committed grave abuse of discretion amounting to lack or in excess of jurisdiction when he ruled that a party who is a stranger to the family of the litigants could not invoke lack of earnest efforts toward a compromise as a ground for the dismissal of the complaint. 15 At the outset, the Court notes that the instant Petition for Certiorari should have been filed with the Court of Appeals (CA) and not with this Court pursuant to the doctrine of hierarchy of courts. Reiterating the established policy for the strict observance of this doctrine, this Court held in Heirs of Bertuldo Hinog v. Melicor 16 that:

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Although the Supreme Court, Court of Appeals and the Regional Trial Courts have concurrent jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction, such concurrence does not give the petitioner unrestricted freedom of choice of court forum. As we stated in People v. Cuaresma: This Court's original jurisdiction to issue writs of certiorari is not exclusive. It is shared by this Court with Regional Trial Courts and with the Court of Appeals. This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and also serves as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Courts original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is [an] established policy. It is a policy necessary to prevent inordinate demands upon the Courts time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Courts docket. The rationale for this rule is two-fold: (a) it would be an imposition upon the precious time of this Court; and (b) it would cause an inevitable and resultant delay, intended or otherwise, in the adjudication of cases, which in some instances had to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues because this Court is not a trier of facts. Thus, this Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts, and exceptional and compelling circumstances, such as cases of national interest and of serious implications, justify the availment of the extraordinary remedy of writ of certiorari, calling for the exercise of its primary jurisdiction. Exceptional and compelling circumstances were held present in the following cases: (a)Chavez vs. Romulo on citizens right to bear arms; (b) Government of the United States of America vs. Purgananon bail in extradition

proceedings; (c) Commission on Elections vs. Quijano-Padilla on government contract involving modernization and computerization of voters registration list; (d) Buklod ng Kawaning EIIB vs. Zamora on status and existence of a public office; and (e) Fortich vs. Corona on the so-called "WinWin Resolution" of the Office of the President which modified the approval of the conversion to agro-industrial area. 17 In the present case, petitioner failed to advance a satisfactory explanation as to its failure to comply with the principle of judicial hierarchy. There is no reason why the instant petition could not have been brought before the CA. On this basis, the instant petition should be dismissed. And even if this Court passes upon the substantial issues raised by petitioner, the instant petition likewise fails for lack of merit. Restating its arguments in its Motion for Partial Reconsideration, petitioner argues that what is applicable to the present case is the Courts decision in De Guzman v. Genato 18 and not in Magbaleta v. Gonong, 19 the former being a case involving a husband and wife while the latter is between brothers. The Court is not persuaded. Article 151 of the Family Code provides as follows: No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed. If it is shown that no such efforts were in fact made, the case must be dismissed. This rule shall not apply to cases which may not be the subject of compromise under the Civil Code. Article 222 of the Civil Code from which Article 151 of the Family Code was taken, essentially contains the same provisions, to wit: No suit shall be filed or maintained between members of the same family unless it should appear that earnest efforts toward a compromise have been made, but that the same have failed, subject to the limitations in Article 2035. 20 The Code Commission that drafted Article 222 of the Civil Code from which Article 151 of the Family Code was taken explains:

[I]t is difficult to imagine a sadder and more tragic spectacle than a litigation between members of the same family. It is necessary that every effort should be made toward a compromise before a litigation is allowed to breed hate and passion in the family. It is known that a lawsuit between close relatives generates deeper bitterness than between strangers. 21 In Magbaleta, the case involved brothers and a stranger to the family, the alleged owner of the subject property. The Court, taking into consideration the explanation made by the Code Commision in its report, ruled that: [T]hese considerations do not, however, weigh enough to make it imperative that such efforts to compromise should be a jurisdictional pre-requisite for the maintenance of an action whenever a stranger to the family is a party thereto, whether as a necessary or indispensable one. It is not always that one who is alien to the family would be willing to suffer the inconvenience of, much less relish, the delay and the complications that wranglings between or among relatives more often than not entail. Besides, it is neither practical nor fair that the determination of the rights of a stranger to the family who just happened to have innocently acquired some kind of interest in any right or property disputed among its members should be made to depend on the way the latter would settle their differences among themselves. 22 x x x. Hence, once a stranger becomes a party to a suit involving members of the same family, the law no longer makes it a condition precedent that earnest efforts be made towards a compromise before the action can prosper. In the subsequent case of De Guzman, the case involved spouses and the alleged paramour of the wife. The Court ruled that due to the efforts exerted by the husband, through the Philippine Constabulary, to confront the wife, there was substantial compliance with the law, thereby implying that even in the presence of a party who is not a family member, the requirements that earnest efforts towards a compromise have been exerted must be complied with, pursuant to Article 222 of the Civil Code, now Article 151 of the Family Code. While De Guzman was decided after Magbaleta, the principle enunciated in the Magbaleta is the one that now prevails because it is reiterated in the subsequent cases of Gonzales v. Lopez, 23 Esquivias v. Court of Appeals,24 Spouses Hontiveros v. Regional Trial Court, Branch 25, Iloilo City, 25 and the

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most recent case of Martinez v. Martinez. 26 Thus, Article 151 of the Family Code applies to cover when the suit is exclusively between or among family members. The Court finds no cogent reason why the ruling in Magbaleta as well as in all of the aforementioned cases should not equally apply to suits involving husband and wife. Petitioner makes much of the fact that the present case involves a husband and his wife while Magbaleta is a case between brothers. However, the Court finds no specific, unique, or special circumstance that would make the ruling in Magbaleta as well as in the abovementioned cases inapplicable to suits involving a husband and his wife, as in the present case. In the first place, Article 151 of the Family Code and Article 222 of the Civil Code are clear that the provisions therein apply to suits involving "members of the same family" as contemplated under Article 150 of the Family Code, to wit: ART. 150. Family relations include those: (1) Between husband and wife; (2) Between parents and children; (3) Among other descendants; and ascendants and

among members of the same family, it necessarily follows that the same may be invoked only by a party who is a member of that same family. WHEREFORE, the instant Petition for Certiorari is DISMISSED for lack of merit. Costs against petitioner. SO ORDERED. MA. ALICIA AUSTRIA-MARTINEZ Associate Justice FAMILY HOME Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 86355 May 31, 1990 JOSE MODEQUILLO, petitioner, vs. HON. AUGUSTO V. BREVA FRANCISCO SALINAS, FLORIPER ABELLAN-SALINAS, JUANITO CULAN-CULAN and DEPUTY SHERIFF FERNANDO PLATA respondents. Josefina Brandares-Almazan for petitioner.

Benito Malubay jointly and severally liable to plaintiffsappellants as hereinbelow set forth. Accordingly, defendants-appellees are ordered to pay jointly and severally to: 1. Plaintiffsappellants, the Salinas spouses: a. the amount of P30,000.00 by way of compensation for the death of their son Audie Salinas; b. P10,000.00 for the loss of earnings by reason of the death of said Audie Salinas; c. the sum of P5,000.00 as burial expenses of Audie Salinas; and d. the sum of P5,000.00 by way of moral damages. 2. Plaintiffsappellants CulanCulan: a. the sum of P5,000.00 for hospitalization expenses of Renato Culan- Culan; and b. P5,000.00 moral damages. for

(4) Among brothers and sisters, whether of the full or half blood. and Article 217 of the Civil Code, to wit: ART. 217. Family relations shall include those: (1) Between husband and wife; (2) Between parent and child;

ABC Law Offices for private respondents. GANCAYCO, J.: The issue in this petition is whether or not a final judgment of the Court of Appeals in an action for damages may be satisfied by way of execution of a family home constituted under the Family Code. The facts are undisputed.

(3) Among other ascendants and their descendants; (4) Among brothers and sisters. Petitioner also contends that the trial court committed grave abuse of discretion when it ruled that petitioner, not being a member of the same family as respondent, may not invoke the provisions of Article 151 of the Family Code. Suffice it to say that since the Court has ruled that the requirement under Article 151 of the Family Code is applicable only in cases which are exclusively between or

On January 29, 1988, a judgment was rendered by the Court of Appeals in CA-G.R. CV No. 09218 entitled"Francisco Salinas, et al. vs. Jose Modequillo, et al.," the dispositive part of which read as follows: WHEREFORE, the decision under appeal should be, as it is hereby, reversed and set aside. Judgment is hereby rendered finding the defendants-appellees Jose Modequillo and

3. Both plaintiffappellants Salinas and Culan-Culan, P7,000.00 for attorney's fees and litigation expenses. All counterclaims and other claims are hereby dismissed. 1 The said judgment having become final and executory, a writ of execution was issued by the Regional Trial Court of Davao City to satisfy the said judgment on the goods and chattels of the defendants Jose Modequillo

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and Benito Malubay at Malalag, Davao del Sur. On July 7, 1988, the sheriff levied on a parcel of residential land located at Poblacion Malalag, Davao del Sur containing an area of 600 square meters with a market value of P34,550.00 and assessed value of P7,570.00 per Tax Declaration No. 8700801359, registered in the name of Jose Modequillo in the office of the Provincial Assessor of Davao del Sur; and a parcel of agricultural land located at Dalagbong Bulacan, Malalag, Davao del Sur containing an area of 3 hectares with a market value of P24,130.00 and assessed value of P9,650.00 per Tax Declaration No. 87-08-01848 registered in the name of Jose Modequillo in the office of the Provincial Assessor of Davao del Sur. 2 A motion to quash and/or to set aside levy of execution was filed by defendant Jose Modequillo alleging therein that the residential land located at Poblacion Malalag is where the family home is built since 1969 prior to the commencement of this case and as such is exempt from execution, forced sale or attachment under Articles 152 and 153 of the Family Code except for liabilities mentioned in Article 155 thereof, and that the judgment debt sought to be enforced against the family home of defendant is not one of those enumerated under Article 155 of the Family Code. As to the agricultural land although it is declared in the name of defendant it is alleged to be still part of the public land and the transfer in his favor by the original possessor and applicant who was a member of a cultural minority was not approved by the proper government agency. An opposition thereto was filed by the plaintiffs. In an order dated August 26, 1988, the trial court denied the motion. A motion for reconsideration thereof was filed by defendant and this was denied for lack of merit on September 2, 1988. Hence, the herein petition for review on certiorari wherein it is alleged that the trial court erred and acted in excess of its jurisdiction in denying petitioner's motion to quash and/or to set aside levy on the properties and in denying petitioner' motion for reconsideration of the order dated August 26, 1988. Petitioner contends that only a question of law is involved in this petition. He asserts that the residential house and lot was first occupied as his family residence in 1969 and was duly constituted as a family home under the Family Code which took effect on August 4, 1988. Thus, petitioner argues that the said residential house and lot is exempt from payment of the obligation enumerated in

Article 155 of the Family Code; and that the decision in this case pertaining to damages arising from a vehicular accident took place on March 16, 1976 and which became final in 1988 is not one of those instances enumerated under Article 155 of the Family Code when the family home may be levied upon and sold on execution. It is further alleged that the trial court erred in holding that the said house and lot became a family home only on August 4, 1988 when the Family Code became effective, and that the Family Code cannot be interpreted in such a way that all family residences are deemed to have been constituted as family homes at the time of their occupancy prior to the effectivity of the said Code and that they are exempt from execution for the payment of obligations incurred before the effectivity of said Code; and that it also erred when it declared that Article 162 of the Family Code does not state that the provisions of Chapter 2, Title V have a retroactive effect. Articles 152 and 153 of the Family Code provide as follows: Art. 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated. Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. Under the Family Code, a family home is deemed constituted on a house and lot from the time it is occupied as a family residence. There is no need to constitute the same judicially or extrajudicially as required in the Civil Code. If the family actually resides in the premises, it is, therefore, a family home as contemplated

by law. Thus, the creditors should take the necessary precautions to protect their interest before extending credit to the spouses or head of the family who owns the home. Article 155 of the Family Code also provides as follows: Art. 155. The family home shall be exempt from execution, forced sale or attachment except: (1) For non-payment of taxes; (2) For debts incurred prior to the constitution of the family home; (3) For debts secured by mortgages on the premises before or after such constitution; and (4) For debts due to laborers, mechanics, architects, builders, material men and others who have rendered service or furnished material for the construction of the building. The exemption provided as aforestated is effective from the time of the constitution of the family home as such, and lasts so long as any of its beneficiaries actually resides therein. In the present case, the residential house and lot of petitioner was not constituted as a family home whether judicially or extrajudicially under the Civil Code. It became a family home by operation of law only under Article 153 of the Family Code. It is deemed constituted as a family home upon the effectivity of the Family Code on August 3, 1988 not August 4, one year after its publication in the Manila Chronicle on August 4, 1987 (1988 being a leap year). The contention of petitioner that it should be considered a family home from the time it was occupied by petitioner and his family in 1969 is not well- taken. Under Article 162 of the Family Code, it is provided that "the provisions of this Chapter shall also govern existing family residences insofar as said provisions are applicable." It does not mean that Articles 152 and 153 of said Code have

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a retroactive effect such that all existing family residences are deemed to have been constituted as family homes at the time of their occupation prior to the effectivity of the Family Code and are exempt from execution for the payment of obligations incurred before the effectivity of the Family Code. Article 162 simply means that all existing family residences at the time of the effectivity of the Family Code, are considered family homes and are prospectively entitled to the benefits accorded to a family home under the Family Code. Article 162 does not state that the provisions of Chapter 2, Title V have a retroactive effect. Is the family home of petitioner exempt from execution of the money judgment aforecited No. The debt or liability which was the basis of the judgment arose or was incurred at the time of the vehicular accident on March 16, 1976 and the money judgment arising therefrom was rendered by the appellate court on January 29, 1988. Both preceded the effectivity of the Family Code on August 3, 1988. This case does not fall under the exemptions from execution provided in the Family Code. As to the agricultural land subject of the execution, the trial court correctly ruled that the levy to be made by the sheriff shall be on whatever rights the petitioner may have on the land. WHEREFORE, the petition is DISMISSED for lack of merit. No pronouncement as to costs. SO ORDERED. Narvasa (Chairman), Cruz and Medialdea, JJ., concur. Grio-Aquino, J., is on leave. FIRST DIVISION [G.R. No. 108532. March 9, 1999] PABLITO TANEO, JR., JOSE TANEO, NENA T. CATUBIG and HUSBAND, CILIA T. MORING and HUSBAND, petitioners, vs. COURT OF APPEALS and ABDON GILIG, respondents. DECISION KAPUNAN, J.: The issues in this case are not novel: whether or not the conveyance made by way of the sheriffs sale pursuant to the wit of execution issued by the trial court in Civil Case No. 590 is prohibited under Sec. 118 of Commonwealth Act No.

141; and whether or not the family home is exempt from execution. As a result of a judgment in Civil Case No. 590 (For recovery of property) in favor of private respondent, two (2) petitioner's properties were levied to satisfy the judgment amount of about P5,000.00: one was a parcel of land located in Barrio Igpit, Municipality of Opol, Misamis Oriental with an area of about five (5) hectares, and the other was the family home also located at Igpit, Opol, Misamis Oriental. The subject properties were sold at public auction on February 12, 1966 to the private respondent as the highest bidder. Consequently, after petitioners failure to redeem the same, a final deed of conveyance was executed on February 9, 1968, definitely selling, transferring, and conveying said properties to the private respondent. To forestall such conveyance, petitioners filed an action on November 5, 1985 (docketed as Civil Case No. 10407) to declare the deed of conveyance void and to quiet title over the land with a prayer for a writ of preliminary injunction. In their complaint, it was alleged that petitioners are the children and heirs of Pablo Taneo and Narcisa Valaceras who died on February 12, 1977 and September 12, 1984, respectively. Upon their death, they left the subject property covered by OCT No. P12820 and Free Patent No. 548906. Considering that said property has been acquired through free patent, such property is therefore inalienable and not subject to any encumbrance for the payment of debt, pursuant to Commonwealth Act. No. 141. Petitioners further alleged that they were in continuous, open and peaceful possession of the land and that on February 9, 1968, Deputy Provincial Sheriff Jose V. Yasay issued a Sheriffs Deed of Conveyance in favor of the private respondent over the subject property including their family home which was extrajudicially constituted in accordance with law. As a result of the alleged illegal deed of conveyance, private respondent was able to obtain in his name Tax Declaration No. 851920 over the land, thus casting a cloud of doubt over the title and ownership of petitioners over said property. Private respondent refuted petitioners contentions alleging that he lawfully acquired the subject properties described as Lot No. 5545, Cad. 237 which was a private land, by virtue of a Sheriffs Sale on February 12, 1966. Said sale has become final as no redemption was made within one year from the registration of the Sheriffs Certificate of Sale. The validity of the sale in favor of Abdon Gilig was even confirmed by the Court of appeals in a related case (CA No. 499965-R) entitled Arriola v. Gilig, where one Rufino Arriola

also claimed ownership over the subject property. Private respondent averred that the subject land was originally owned by Lazaro Ba-a who sold the land to Pablo Taneo on September 18, 1941, as evidenced by an Escritura de Venta. Despite it being a private land, Pablo Taneo filed an application for free patent which was made final only in 1979. As counterclaim, private respondent alleged that since petitioners are still in possession of the subject property, he has been deprived of acts of ownership and possession and therefore, prayed for payment of rentals from February, 1968 until possession has been restored to them. In its decision of March 27, 1989, the RTC dismissed the complaint. The dispositive portion thereof reads as follows: Premises considered, Judgment is hereby rendered in favor of the defendant and against the plaintiffs, ordering the dismissal of the complaint filed by the plaintiffs; a) Declaring OCT No P-12820 and Free Patent No. 548906 both in name of Pablo Taneo as null and void and directing the Register of Deeds to cancel the same, without prejudice however on the part of the defendant to institute legal proceedings for the transfer of the said title in the name of defendant Abdon Gilig; b) Declaring Abdon Gilig as the absolute and legal owner of the land covered by OCT No. P-12820, and covered by Tax Declaration No. 851920, and hence entitled to the possession of the same and as a necessary concomitant, admonishing the plaintiffs to refrain from disturbing the peaceful possession of the defendant over the land in question; c) Likewise declaring the defendant Abdon Gilig as the true and absolute owner of the house in question formerly declared under Tax Declaration No. 4142 in the name of Pablo Taneo and presently declared under Tax Declaration No.

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851916 in the name of Abdon Gilig; ordering the plaintiffs or any of their representatives to vacate and return the possession of the same to defendant Abdon Gilig; d) Ordering the plaintiffs, except the nominal parties herein, to pay to defendant Abdon Gilig the amount of P500.00 a month as reasonable rental of the house in question to be reckoned from February 9, 1968 until the possession of the same is returned to the defendant. e) To pay to defendant the amount of P5,000.00 as attorneys fees and to pay the costs. SO ORDERED.[1] On appeal, the Court of Appeals affirmed in toto the decision of the RTC. Hence, this petition. The petition is devoid of merit. In resolving the issues, the lower court made the following findings of fact which this Court finds no cogent reason to disturb: 1. That the land in question originally belonged to Lazaro Ba-a who sold the same to the late Pablito (sic) Taneo father of the herein plaintiff on September 18, 1941, by virtue of an Escritura de Venta identified as Reg. Not. 50; pages 53, Foleo Not. V, Series of 1941 of the Notarial Register of Ernie Pelaez (Exh. 10); 2. That on July 19, 1951 Abdon Gilig with his wife filed a Civil Case No. 590 for recovery of property against Pablo Taneo, et al., wherein Judgment was rendered on June 24, 1964, in favor of Abdon Gilig and against Pablo Taneo ordering the latter to pay damages in the amount of P5,000.00 (Exh. 2); 3. That by virtue of said decision, a writ of Execution was issued on

November 22, 1965 against the properties of Pablo Taneo and on December 1, 1965, a Notice of Levy was executed by the Clerk of Court Pedro Perez wherein the properties in question were among the properties levied by the Sheriff (Exh. 3); 4. That the said properties were sold at public auction wherein the defendant Abdon Gilig came out as the highest bidder and on February 12, 1965, a Sheriffs Certificate of Sale was executed by Ex-Oficio Provincial Sheriff Pedro Perez (Exh. 1) ceding the said properties in favor of Abdon Gilig and which Certificate of Sale was registered with the Register of Deeds of March 2, 1966; 5. That for failure to redeem the said property within the reglementary period, a Sheriffs final Deed of Conveyance was executed by same Provincial Sheriff Jose V. Yasay on February 1968, (Exhs. 4, 4-A) conveying the property definitely to Abdon Gilig. 6. That on April 20, 1966, after his third-party claim which he filed with the Sheriff in Civil Case No. 590 was not given due course, Rufino Arriola filed Civil Case No. 2667 entitled Arriola vs. Abdon Gilig, et al., for Recovery of Property and/or annulment of Sale with Damages; 7. That Judgment was rendered by the Court thru Judge Bernardo Teves dismissing the case with costs on February 21, 1969; 8. That said decision was appealed to the Court of Appeals which affirmed the decision in toto on June 20, 1979; declaring the alleged Deed of Sale executed by Abdon Gilig in favor of the plaintiff as null and void for being simulated or fictitious and

executed in fraud or (sic) creditors; 9. That on March 7, 1964, Pablo Taneo constituted the house in question erected on the land of Plutarco Vacalares as a family home (Exh. F) but was however, notarized only on May 2, 1965 and registered with the Register of Deeds on June 24, 1966; 10. That in the meanwhile, unknown to the defendant, Pablo Taneo applied for a free patent on the land in question which was approved on October 13, 1973, (Exh. B) and the Patent and Title issued on December 10, 1980 (Oct No. P-12820Exh. 12); 11. On November 3, 1985, the plaintiff filed the present action.[2] Petitioners contend that under Section 118 of Commonwealth Act No. 141, the subject land which they inherited from their father under free patent cannot be alienated or encumbered in violation of the law. Citing in particular the cases of Oliveros v. Porciongcola[3] and Gonzaga v. Court of Appeals,[4] the execution or auction sale of the litigated land falls within the prohibited period and is, likewise, a disavowal of the rationale of the law which is to give the homesteader or patentee every chance to preserve for himself and his family the land which the State had gratuitously given to him as a reward for his labor in cleaning and cultivating it.[5] We are not unmindful of the intent of the law. In fact, in Republic v. Court of Appeals,[6] the Court elucidated, to wit: It is well-known that the homestead laws were designed to distribute disposable agricultural lots of the State to landdestitute citizens for their home and cultivation. Pursuant to such benevolent intention the State prohibits the sale or encumbrance of the homestead (Section 116) within five years after the grant of the patent. After that five-year period the law impliedly permits alienation of the homestead; but in line with the primordial purpose to favor the homesteader and his family the statute provides that such alienation or conveyance (Section 117) shall be subject to the right of repurchase by the homesteader, his widow or heirs within five years. This Section 117 is undoubtedly a complement of Section 116. It aims to preserve and keep in the family of the

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homesteader that portion of public land which the State had gratuitously given to him. It would, therefore, be in keeping with this fundamental idea to hold, as we hold, that the right to repurchase exists not only when the original homesteader makes the conveyance, but also when it is made by his widow or heirs. This construction is clearly deducible from the terms of the statute. The intent of the law is undisputable but under the facts of the case, the prohibition invoked by the petitioners under Section 118 does not apply to them. Section 118 of Commonwealth Act No. 141 reads: Except in favor of the Government or any of its branches, units or institutions, or legally constituted banking corporations, lands acquired under free patent or homestead provisions shall not be subject to encumbrance or alienation from the date of the approval of the application and for a term of five years from and after the date of issuance of the patent or grant, nor shall they become liable to the satisfaction of any debt contracted prior to the expiration of said period, but the improvements or crops on the land may be mortgaged or pledged to qualified persons, associations, or corporations. x x x. The prohibition against alienation of lands acquired by homestead or free patent commences on the date of the approval of the application for free patent and the fiveyear period is counted from the issuance of the patent. The reckoning point is actually the date of approval of the application. In Amper v. Presiding Judge,[7] the Court held that: x x x The date when the prohibition against the alienation of lands acquired by homesteads or free patents commences is the date of the approval of the application and the prohibition embraces the entire five-year period from and after the date of issuance of the patent or grant. As stated in Beniga v. Bugas, (35 SCRA 111), the provision would make no sense if the prohibition starting from the date of the approval of the application would have no termination date. The specific period of five years within which the alienation or encumbrance of a homestead is restricted starts to be computed from the date of the issuance of the patent. But the prohibition of alienation commences from the date the application is approved which comes earlier. (Underlining ours.)

Following this ruling, we agree with the respondent court that the conveyance made by way of the sheriffs sale was not violative of the law. The judgment obligation of the petitioners against Abdon Gilig arose on June 24, 1964. The properties were levied and sold at public auction with Abdon Gilig as the highest bidder on February 12, 1966. On February 9, 1968, the final deed of conveyance ceding the subject property to Abdon Gilig was issued after the petitioners failed to redeem the property after the reglementary period. Pablo Taneos application for free patent was approved only on October 19, 1973. The sequence of the events leads us to the inescapable conclusion that even before the application for homestead had been approved, Pablo Taneo was no longer the owner of the land. The Deed of conveyance issued on February 9, 1968 finally transferred the property to Abdon Gilig. As of that date, Pablo Taneo did not actually have anymore rights over the land which he could have transferred to herein petitioners. The petitioners are not the owners of the land and cannot claim to be such by invoking Commonwealth Act No. 141. The prohibition does not apply since it is clear from the records that the judgment debt and the execution sale took placeprior to the approval of the application for free patent. We quote with favor the respondent courts valid observation on the matter: x x x the application of Pablo Taneo for a free patent was approved only on 19 October 1973 and Free Patent was issued on 10 December 1980. Under the aforecited provision, the subject land could not be made liable for the satisfaction of any debt contracted from the time of the application and during the 5-year period following 10 December 1980, or until 10 December 1985. However, debts contracted prior to the approval of the application for free patent, that is prior to 18 October 1973, are not covered by the prohibition. This is because they do not fall within the scope of the prohibited period. In this case, the judgment debt in favor of defendant-appellee was rendered on 24 June 1964, the writ of execution issued on 22 November 1965, notice of levy made on 1 December 1965, the execution sale held on 12 February 1966, and the certificate of sale registered on 2 March 1966, all before Pablo Taneos application for free patent was approved on 19 October 1973. The execution, therefore, was not violative of the law.[8] Anent the second issue, petitioners aver that the house which their father constituted as family home is exempt from execution. In a last ditch effort to save their

property, petitioners invoke the benefits accorded to the family home under the Family Code. A family home is the dwelling place of a person and his family. It is said, however, that the family home is a real right, which is gratuitous, inalienable and free from attachment, constituted over the dwelling place and the land on which it is situated, which confers upon a particular family the right to enjoy such properties, which must remain with the person constituting it and his heirs.[9] It cannot be seized by creditors except in certain special cases. Under the Civil Code (Articles 224 to 251), a family home may be constituted judicially and extrajudicially, the former by the filing of the petition and with the approval of the proper court, and the latter by the recording of a public instrument in the proper registry of property declaring the establishment of the family home. The operative act then which created the family home extrajudicially was the registration in the Registry of Property of the declaration prescribed by Articles 240 and 241 of the Civil Code.[10] Under the Family Code, however, registration was no longer necessary. Article 153 of the Family Code provides that the family home is deemed constituted on a house and lot from the time it is occupied in the family residence. It reads: The family home is deemed constituted on a house and lot from the time it is occupied as family residence. From the time of its constitution and so long as its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment, except as hereinafter provided and to the extent of the value allowed by law. It is under the foregoing provision which petitioners seek refuge to avert execution of the family home arguing that as early as 1964, Pablo Taneo had already constituted the house in question as their family home. However, the retroactive effect of the Family Code, particularly on the provisions on the family home has been clearly laid down by the court as explained in the case of Manacop v. Court of Appeals[11] to wit: Finally, the petitioner insists that the attached property is a family home, having been occupied by him and his family since 1972, and is therefore exempt from attachment. The contention is not well-taken.

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While Article 153 of the Family Code provides that the family home is deemed constituted on a house and lot from the time it is occupied as a family residence, it does not mean that said article has a retroactive effect such that all existing family residences, petitioners included, are deemed to have been constituted as family homes at the time of their occupation prior to the effectivity of the Family Code and henceforth, are exempt from execution for the payment of obligations incurred before the effectivity of the Family Code on August 3, 1988 (Modequillo vs. Breva, 185 SCRA 766). Neither does Article 162 of said Code state that the provisions of Chapter 2, Title V thereof have retroactive effect. It simply means that all existing family residences at the time of the effectivity of the Family Code are considered family homes and are prospectively entitled to the benefits accorded to a family home under the Family Code (Modequillo vs. Breva, supra). Since petitioners debt was incurred as early as November 25, 1987, it preceded the effectivity of the Family Code. His property is therefore not exempt from attachment (Annex O, Plaintiffs Position Paper and Memorandum of Authorities, p. 78). (pp. 5-6, Decision; pp. 6465, Rollo) (underscoring ours) The applicable law, therefore, in the case at bar is still the Civil Code where registration of the declaration of a family home is a prerequisite. Nonetheless, the law provides certain instances where the family home is not exempted from execution, forced sale or attachment. Article 243 reads: The family home extrajudicially formed shall be exempt from execution, forced sale or attachment, except: (1) For nonpayment of taxes; (2) For debts incurred before the declaration was recorded in the Registry of Property; (3) For debts secured by mortgages on the premises before or after such record of the declaration; (4) For debts due to laborers, mechanics, architects, builders, material-men and others who have rendered service or furnished material for the construction of the building.[12] The trial court found that on March 7, 1964, Pablo Taneo constituted the house in question, erected on the land of Plutarco Vacalares, as the family home. The

instrument constituting the family home was registered only on January 24, 1966. The money judgment against Pablo Taneo was rendered on January 24, 1964. Thus, at that time when the debt was incurred, the family home was not yet constituted or even registered. Clearly, petitioners alleged family home, as constituted by their father is not exempt as it falls under the exception of Article 243(2). Moreover, the constitution of the family home by Pablo Taneo is even doubtful considering that such constitution did not comply with the requirements of the law. The trial court found that the house was erected not on the land which the Taneos owned but on the land of one Plutarco Vacalares. By the very definition of the law that the family home is the dwelling house where a person and his family resides and the land on which it is situated,[13] it is understood that the house should be constructed on a land not belonging to another. Apparently, the constitution of a family home by Pablo Taneo in the instant case was merely an afterthought in order to escape execution of their property but to no avail. WHEREFORE, the petition is DENIED for lack of merit. SO ORDERED. Davide, Jr., C.J., Melo, and Pardo, JJ., concur. THIRD DIVISION [G.R. No. 165060, November 27, 2008] ALBINO JOSEF, PETITIONER, VS. OTELIO SANTOS, RESPONDENT. DECISION YNARES-SANTIAGO, J.: This petition for review on certiorari under Rule 45 of the Rules of Court assails the November 17, 2003[1] Resolution of the Court of Appeals in CA-G.R. SP No. 80315, dismissing petitioner's special civil action of certiorari for failure to file a prior motion for reconsideration, and the May 7, 2004[2] Resolution denying the motion for reconsideration. Petitioner Albino Josef was the defendant in Civil Case No. 95-110-MK, which is a case for collection of sum of money filed by herein respondent Otelio Santos, who claimed that petitioner failed to pay the shoe materials which he bought on credit from respondent on various dates in 1994. After trial, the Regional Trial Court of Marikina City, Branch 272, found petitioner liable to respondent in the amount of P404,836.50 with interest at 12% per (Chairman),

annum reckoned from January 9, 1995 until full payment.[3] Petitioner appealed[4] to the Court of Appeals, which affirmed the trial court's decisionin toto.[5] Petitioner filed before this Court a petition for review on certiorari, but it was dismissed in a Resolution dated February 18, 2002.[6] The Judgment became final and executory on May 21, 2002. On February 17, 2003, respondent moved for issuance of a writ of execution,[7] which was opposed by petitioner.[8] In an Order dated July 16, 2003,[9] the trial court granted the motion, the dispositive portion of which reads, as follows: WHEREFORE, premises considered, the motion for issuance of writ of execution is hereby granted. Let a writ of execution be issued commanding the Sheriff of this Court to execute the decision dated December 18, 1996. SO ORDERED.[10] A writ of execution was issued on August 20, 2003[11] and enforced on August 21, 2003. On August 29, 2003, certain personal properties subject of the writ of execution were auctioned off. Thereafter, a real property located at Marikina City and covered by Transfer Certificate of Title (TCT) No. N-105280 was sold on October 28, 2003 by way of public auction to fully satisfy the judgment credit. Respondent emerged as the winning bidder and a Certificate of Sale[12] dated November 6, 2003 was issued in his favor. On November 5, 2003, petitioner filed an original petition for certiorari with the Court of Appeals, questioning the sheriff's levy and sale of the abovementioned personal and real properties. Petitioner claimed that the personal properties did not belong to him but to his children; and that the real property covered by TCT No. N-105280 was his family home thus exempt from execution. On November 17, 2003, the Court of Appeals issued the assailed Resolution dismissing the petition for failure of petitioner to file a motion for reconsideration of the trial court's July 16, 2003 Order granting the motion for execution and ordering the issuance of a writ therefor, as well as for his failure to indicate in his petition the timeliness of its filing as required under the Rules of Court. On May 7, 2004, the appellate court denied petitioner's motion for reconsideration. Thus, the instant petition which raises the following issues: I. WHETHER OR NOT THE LEVY AND SALE OF THE PERSONAL BELONGINGS OF THE PETITIONER'S CHILDREN AS WELL AS THE

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ATTACHMENT AND SALE ON PUBLIC AUCTION OF HIS FAMILY HOME TO SATISFY THE JUDGMENT AWARD IN FAVOR OF RESPONDENT IS LEGAL. II. WHETHER OR NOT THE DISMISSAL OF THE PETITIONER'S PETITION FOR CERTIORARI BY THE HONORABLE COURT OF APPEALS IS JUSTIFIED UNDER THE CIRCUMSTANCES. Petitioner argues that the trial court sheriff erroneously attached, levied and sold on execution the real property covered by TCT No. N-105280 because the same is his family home; that the execution sale was irregular because it was conducted without complying with the notice and posting of requirements; and that the personal and real properties were sold for inadequate prices as to shock the conscience. The real property was allegedly worth P8 million but was sold for only P848,448.64. Petitioner also argues that the appellate court gravely abused its discretion in dismissing the petition based purely on technical grounds, i.e., his failure to file a motion for reconsideration of the trial court's order granting execution, and his failure to indicate in his petition for certiorari the timeliness of filing the same with the Court of Appeals. Respondent, on the other hand, argues that petitioner's alleged family home has not been shown to have been judicially or extrajudicially constituted, obviously referring to the provisions on family home of the Civil Code - not those of the Family Code which should apply in this case; that petitioner has not shown to the court's satisfaction that the personal properties executed upon and sold belonged to his children. Respondent argues that he is entitled to satisfaction of judgment considering the length of time it took for the parties to litigate and the various remedies petitioner availed of which have delayed the case. The petition is meritorious.

law. However, instead of inquiring into the nature of petitioner's allegations in his opposition, the trial court ignored the same and granted respondent's motion for execution. The full text of the July 16, 2003 Order provides, as follows: This resolves the "Motion for the Issuance of Writ of Execution" filed by plaintiff thru counsel and the "Opposition" thereto filed by the defendant on her own behalf. The records show that a decision was rendered by this Court in favor of the plaintiff on December 18, 1995 which decision was affirmed by the Court of Appeals on June 26, 2001 and by the Supreme Court on February 18, 2002. On June 18, 2003, this Court received the entire records of the case from the Court of Appeals. Considering the foregoing, it is now the ministerial duty of the Court to issue a writ of execution pursuant to Sec. 1, Rule 39 of the Rules of Court. WHEREFORE, premises considered, the motion for issuance of writ of execution is hereby granted. Let a writ of execution be issued commanding the Sheriff of this Court to execute the decision dated December 18, 1996. SO ORDERED.[13] The above Order did not resolve nor take into account petitioner's allegations in his Opposition, which are material and relevant in the resolution of the motion for issuance of a writ of execution. This is serious error on the part of the trial court. It should have made an earnest determination of the truth to petitioner's claim that the house and lot in which he and his children resided was their duly constituted family home. Since it did not, its July 16, 2003 Order is thus null and void. Where a judgment or judicial order is void it may be said to be a lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head.[14] The family home is a real right which is gratuitous, inalienable and free from attachment, constituted over the dwelling place and the land on which it is situated, which confers upon a particular family the right to enjoy such properties, which must remain with the person constituting it and his heirs. It cannot be seized by creditors except in certain special cases.[15] Upon being apprised that the property subject of execution allegedly constitutes petitioner's family home, the trial court should have observed the following procedure:

1.

Determine if petitioner's obligation to respondent falls under either of the exceptions under Article 155[16] of the Family Code; Make an inquiry into the veracity of petitioner's claim that the property was his family home;[17] conduct an ocular inspection of the premises; an examination of the title; an interview of members of the community where the alleged family home is located, in order to determine if petitioner actually resided within the premises of the claimed family home; order a submission of photographs of the premises, depositions, and/or affidavits of proper individuals/parties; or a solemn examination of the petitioner, his children and other witnesses. At the same time, the respondent is given the opportunity to cross-examine and present evidence to the contrary; If the property is accordingly found to constitute petitioner's family home, the court should determine:

2.

3.

a) if the obligation sued upon was contracted or incurred prior to, or after, the effectivity of the Family Code;[18] b) if petitioner's spouse is still alive, as well as if there are other beneficiaries of the family home;[19] c) if the petitioner has more than one residence for the purpose of determining which of them, if any, is his family home;[20] and d) its actual location and value, for the purpose of applying the provisions of Articles 157[21] and 160[22] of the Family Code. The family home is the dwelling place of a person and his family, a sacred symbol of family love and repository of cherished memories that last during one's lifetime.[23] It is the sanctuary of that union which the law declares and protects as a sacred institution; and likewise a shelter for the fruits of that union. It is where both can seek refuge and strengthen the tie that binds them together and which ultimately forms the moral fabric of our nation. The protection of the family home is just as necessary in the preservation of the family as a basic social institution, and since no custom, practice or agreement destructive of the family shall be recognized or given effect,[24] the trial court's failure to observe

Petitioner, in his opposition to respondent's motion for issuance of a writ of execution, claimed that he was insolvent; that he had no property to answer for the judgment credit; that the house and lot in which he was residing at the time was his family home thus exempt from execution; that the household furniture and appliances found therein are likewise exempt from execution; and that these furniture and appliances belonged to his children Jasmin Josef and Jean Josef Isidro. Thus, as early as during proceedings prior to the issuance of the writ of execution, petitioner brought to the fore the issue of exemption from execution of his home, which he claimed to be a family home in contemplation of the civil

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the proper procedures to determine the veracity of petitioner's allegations, is unjustified. The same is true with respect to personal properties levied upon and sold at auction. Despite petitioner's allegations in his Opposition, the trial court did not make an effort to determine the nature of the same, whether the items were exempt from executionor not, or whether they belonged to petitioner or to someone else.[25] Respondent moved for issuance of a writ of execution on February 17, 2003 while petitioner filed his opposition on June 23, 2003. The trial court granted the motion on July 16, 2003, and the writ of execution was issued on August 20, 2003. Clearly, the trial court had enough time to conduct the crucial inquiry that would have spared petitioner the trouble of having to seek relief all the way to this Court. Indeed, the trial court's inaction on petitioner's plea resulted in serious injustice to the latter, not to mention that its failure to conduct an inquiry based on the latter's claim bordered on gross ignorance of the law. Being void, the July 16, 2003 Order could not have conferred any right to respondent. Any writ of execution based on it is likewise void. Although we have held in several cases[26] that a claim for exemption from execution of the family home should be set up and proved before the sale of the property at public auction, and failure to do so would estop the party from later claiming the exemption since the right of exemption is a personal privilege granted to the judgment debtor which must be claimed by the judgment debtor himself at the time of the levy or within a reasonable period thereafter, the circumstances of the instant case are different. Petitioner claimed exemption from execution of his family home soon after respondent filed the motion for issuance of a writ of execution, thus giving notice to the trial court and respondent that a property exempt from execution may be in danger of being subjected to levy and sale. Thereupon, the trial court is called to observe the procedure as herein laid out; on the other hand, the respondent should observe the procedure prescribed in Article 160 of the Family Code, that is, to obtain an order for the sale on execution of the petitioner's family home, if so, and apply the proceeds less the maximum amount allowed by law under Article 157 of the Code which should remain with the petitioner for the rebuilding of his family home - to his judgment credit. Instead, both the trial court and respondent completely ignored petitioner's argument that the properties subject of the writ are exempt from execution. Indeed, petitioner's resort to the special

civil action of certiorari in the Court of Appeals was belated and without benefit of the requisite motion for reconsideration, however, considering the gravity of the issue, involving as it does matters that strike at the very heart of that basic social institution which the State has a constitutional and moral duty to preserve and protect, as well as petitioner's constitutional right to abode, all procedural infirmities occasioned upon this case must take a back seat to the substantive questions which deserve to be answered in full. WHEREFORE, the Petition for Review on Certiorari is GRANTED. The November 17, 2003 and May 7, 2004 Resolutions of the Court of Appeals in CA-G.R. SP No. 80315 are REVERSED and SET ASIDE. The July 16, 2003 Order of the Regional Trial Court of Marikina City, Branch 272 in Civil Case No. 95-110-MK, as well as the writ or writs of execution thus issued in said case, are hereby DECLARED VOID, and all acts proceeding therefrom and any title obtained by virtue thereof are likewise DECLARED VOID. The trial court is hereby DIRECTED (1) to conduct a solemn inquiry into the nature of the real property covered by Transfer Certificate of Title No. N-105280, with a view toward determining whether the same is petitioner Albino Josef's family home, and if so, apply the pertinent provisions of the Family Code and Rule 39 of the Rules of Court; and (2) to conduct an inquiry into the ownership of all other properties that were levied upon and sold, with the aim of determining as well whether these properties are exempt from execution under existing law. Respondent Otelio Santos is hereby DIRECTED to hold the abovementioned real and personal properties, or the proceeds thereof, in trust to await the outcome of the trial court's inquiry. Finally, the trial court is DIRECTED to resolve, with utmost dispatch, Civil Case No. 95-110-MK within sixty (60) days from receipt of a copy of this Decision. SO ORDERED. Austria-Martinez, Tinga,* ChicoNazario, and Nachura, JJ., concur. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 180587 March 20, 2009

SIMEON CABANG, VIRGINIA CABANG and VENANCIO CABANG ALIAS "DONDON", Petitioners, vs. MR. & MRS. GUILLERMO BASAY, Respondents. DECISION YNARES-SANTIAGO, J.: This petition for review on certiorari under Rule 45 of the Rules of Court seeks to annul and set aside the Decision of the Court of Appeals in CA-G.R. CV No. 767551 dated May 31, 20072 which reversed the Order3 of the Regional Trial Court of Molave, Zamboanga Del Sur, Branch 23 in Civil Case No. 99-20-127 which denied respondents motion for execution on the ground that petitioners family home was still subsisting. Also assailed is the Resolution dated September 21, 2007 denying the motion for reconsideration. The facts as summarized by the appellate court: Deceased Felix Odong was the registered owner of Lot No. 7777, Ts- 222 located in Molave, Zamboanga del Sur. Said lot was covered by Original Certificate of Title No. 0-2,768 pursuant to Decree No. N-64 and issued on March 9, 1966. However, Felix Odong and his heirs never occupied nor took possession of the lot. On June 16, 1987, plaintiff-appellants bought said real property from the heirs of Felix Odong for P8,000.00. Consequently, OCT No. 0-2,768 was cancelled and in its stead, Transfer Certificate of Title No. T22,048 was issued on August 6, 1987 in the name of plaintiff-appellants. The latter also did not occupy the said property. Defendant-appellees, on the other hand, had been in continuous, open, peaceful and adverse possession of the same parcel of land since 1956 up to the present. They were the awardees in the cadastral proceedings of Lot No. 7778 of the Molave Townsite, Ts-222. During the said cadastral proceedings, defendant-appellees claimed Lot No. 7778 on the belief that the area they were actually occupying was Lot No. 7778. As it turned out, however, when the Municipality of Molave relocated the townsite lots in the area in 1992 as a big portion of Lot No. 7778 was used by the government as a public road and as there were many discrepancies in the areas occupied, it was then discovered that defendant-appellees were actually occupying Lot No. 7777.

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On June 23, 1992, plaintiff-appellants filed a Complaint docketed as Civil Case No. 92-20127 for Recovery of Property against defendant-appellees. On July 19, 1996, the trial court rendered its decision, the dispositive portion of which reads, thus: WHEREFORE, judgment is hereby rendered in favor of the defendants and against the plaintiff 1. Holding that the rights of the plaintiffs to recover the land registered in their names, have been effectively barred by laches; and 2. Ordering the dismissal of the above-entitled case. No pronouncement as to cost. SO ORDERED. Aggrieved, plaintiff-appellants filed an appeal before the Court of Appeals assailing the above-decision. Said appeal was docketed as CA-G.R. CV No. 55207. On December 23, 1998, the Court of Appeals, through the then Second Division, rendered a Decision reversing the assailed decision and decreed as follows: WHEREFORE, the judgment herein appealed from is hereby REVERSED, and judgment is hereby rendered declaring the plaintiffsappellants to be entitled to the possession of Lot No. 7777 of the Molave Townsite, subject to the rights of the defendantsappellees under Article (sic) 448, 546, 547 and 548 of the New Civil Code. The records of this case are hereby ordered remanded to the court of origin for further proceedings to determine the rights of the defendants-appellees under the aforesaid article (sic) of the New Civil Code, and to render judgment thereon in accordance with the evidence and this decision. No pronouncement as to costs. SO ORDERED. Defendant-appellees thereafter filed a petition for review on certiorari under Rule 45 of the Rules of Court before the Supreme Court docketed as G.R. No. 139601. On October 18, 1999, the Supreme Court issued a Resolution denying the

petition for late filing appropriate service.

and

lack

of

Subsequently, or on February 15, 2000, the Supreme Court Resolution had become final and executory. Consequently, the case was remanded to the court a quo and the latter commissioned the Municipal Assessor of Molave, Zamboanga del Sur to determine the value of the improvements introduced by the defendant-appellees. The Commissioners Report determined that at the time of ocular inspection, there were three (3) residential buildings constructed on the property in litigation. During the ocular inspection, plaintiffappellants son, Gil Basay, defendantappellee Virginia Cabang, and one Bernardo Mendez, an occupant of the lot, were present. In the report, the following appraised value of the improvements were determined, thus:

Geodetic Engineer Diosdado L. de Guzman to [act] as the official surveyor. On March 2002, Engr. De Guzman submitted his survey report which stated, inter alia: 1. That on September 18, 2001, the undersigned had conducted verification survey of Lot 7777, Ts-222 and the adjacent lots for reference purposes-with both parties present on the survey; 2. That the survey was started from BLLM #34, as directed by the Order, taking sideshots of lot corners, existing concrete fence, road and going back to BLLM #34, a point of reference; 3. Considering that there was only one BLLM existing on the ground, the undersigned conducted astronomical observation on December 27, 2001 in order to check the carried Azimuth of the traverse; 4. That per result of the survey conducted, it was found out and ascertained that the area occupied by Mrs. Virginia Cabang is a portion of Lot 7777, with lot assignment to be known as Lot 7777-A with an area of 303 square meters and portion of Lot 7778 with lot assignment to be known as Lot 7778-A with an area of 76 square meters. On the same lot, portion of which is also occupied by Mr. Bernardo Mendez with lot assignment to be known as Lot 7777-B with an area of 236 square meters and Lot 7778-B with an area of 243 square meters as shown on the attached sketch for ready reference; 5. That there were three (3) houses made of light material erected inside Lot No. 7777-A, which is owned by Mrs. Virginia Cabang and also a concrete house erected both on portion of Lot No. 7777-B and Lot No. 7778-B, which is owned by Mr. Bernardo Mendez. x x x; 6. That the existing road had been traversing on a portion of Lot 7778 to be know (sic) as Lot 7778-CA-G.R. SP No. with an area of 116 square meters as shown on attached sketch plan. During the hearing on May 10, 2002, plaintiff-appellants offer to pay P21,000.00

Owne r Virgin ia Caba ng Joven cio Capu no Ameli to Mata

Lot No .

Area (sq. m.)

Improve ment

Apprais ed Value

77 77

32.5 5

Building

P21,58 0.65

77 77

15.7 5

Building

18,663. 75

77 77

14.0 0

Building

5,658.1 0 1,500.0 0 2,164.0 0

Toilet Plants & Trees

TOTAL

P49,56 6.50

Thereafter, upon verbal request of defendant-appellees, the court a quo in its Order declared that the tie point of the survey should be the BLLM (Bureau of Lands Location Monument) and authorized the official surveyor of the Bureau of Lands to conduct the survey of the litigated property. Pursuant to the above Order, the Community Environment and Natural Resources Office (CENRO) of the Department of Environment and Natural Resources (DENR)-Region XI designated

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for the improvement of the lot in question was rejected by defendant-appellees. The court a quo disclosed its difficulty in resolving whether or not the houses may be subject of an order of execution it being a family home. On June 18, 2002, plaintiff-appellants filed their Manifestation and Motion for Execution alleging therein that defendantappellees refused to accept payment of the improvements as determined by the court appointed Commissioner, thus, they should now be ordered to remove said improvements at their expense or if they refused, an Order of Demolition be issued. On September 6, 2002, the court a quo issued the herein assailed Order denying the motion for execution.4 Respondents thereafter elevated their cause to the appellate court which reversed the trial court in its May 31, 2007 Decision in CA-G.R. CV No. 76755. Petitioners Motion for Reconsideration was denied by the Court of Appeals in its Resolution5 dated September 21, 2007. Hence, this petition. Petitioners insist that the property subject of the controversy is a duly constituted family home which is not subject to execution, thus, they argue that the appellate tribunal erred in reversing the judgment of the trial court. The petition lacks merit. It bears stressing that the purpose for which the records of the case were remanded to the court of origin was for the enforcement of the appellate courts final and executory judgment6 in CA-G.R. CV No. 55207 which, among others, declared herein respondents entitled to the possession of Lot No. 7777 of the Molave Townsite subject to the provisions of Articles 448,7 546,8 5479 an 54810 of the Civil Code. Indeed, the decision explicitly decreed that the remand of the records of the case was for the court of origin "[t]o determine the rights of the defendants-appellees under the aforesaid article[s] of the New Civil Code, and to render judgment thereon in accordance with the evidence and this decision." A final and executory judgment may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact or law and whether it will be made by the court that rendered it or by the highest court in the land.11 The only exceptions to this rule are the correction of (1) clerical errors; (2) the so-called nunc pro tunc entries which cause

no prejudice to any party, and (3) void judgments.12 Well-settled is the rule that there can be no execution until and unless the judgment has become final and executory, i.e. the period of appeal has lapsed without an appeal having been taken, or, having been taken, the appeal has been resolved and the records of the case have been returned to the court of origin, in which event, execution shall issue as a matter of right.13 In short, once a judgment becomes final, the winning party is entitled to a writ of execution and the issuance thereof becomes a courts ministerial duty.14 Furthermore, as a matter of settled legal principle, a writ of execution must adhere to every essential particulars of the judgment sought to be executed.15 An order of execution may not vary or go beyond the terns of the judgment it seeks to enforce.16 A writ of execution must conform to the judgment and if it is different from, goes beyond or varies the tenor of the judgment which gives it life, it is a nullity.17 Otherwise stated, when the order of execution and the corresponding writ issued pursuant thereto is not in harmony with and exceeds the judgment which gives it life, they have pro tanto no validity18 to maintain otherwise would be to ignore the constitutional provision against depriving a person of his property without due process of law.19 As aptly pointed out by the appellate court, from the inception of Civil Case No. 99-20127, it was already of judicial notice that the improvements introduced by petitioners on the litigated property are residential houses not family homes. Belatedly interposing such an extraneous issue at such a late stage of the proceeding is tantamount to interfering with and varying the terms of the final and executory judgment and a violation of respondents right to due process because As a general rule, points of law, theories and issues not brought to the attention of the trial court cannot be raised for the first time on appeal. For a contrary rule would be unfair to the adverse party who would have no opportunity to present further evidence material to the new theory, which it could have done had it been aware of if at the time of the hearing before the trial court.20lawphil.net The refusal, therefore, of the trial court to enforce the execution on the ground that the improvements introduced on the litigated property are family homes goes beyond the pale of what it had been expressly tasked to do, i.e. its ministerial duty of executing the judgment in

accordance with its essential particulars. The foregoing factual, legal and jurisprudential scenario reduces the raising of the issue of whether or not the improvements introduced by petitioners are family homes into a mere afterthought. Even squarely addressing the issue of whether or not the improvements introduced by petitioners on the subject land are family homes will not extricate them from their predicament. As defined, "[T]he family home is a sacred symbol of family love and is the repository of cherished memories that last during ones lifetime.21 It is the dwelling house where the husband and wife, or an unmarried head of a family reside, including the land on which it is situated.22 It is constituted jointly by the husband and the wife or by an unmarried head of a family."23 Article 153 of the Family Code provides that The family home is deemed constituted from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. The actual value of the family home shall not exceed, at the time of its constitution, the amount of P300,000.00 in urban areas and P200,000.00 in rural areas.24 Under the afore-quoted provision, a family home is deemed constituted on a house and a lot from the time it is occupied as a family residence. There is no need to constitute the same judicially or extra-judicially.25 There can be no question that a family home is generally exempt from execution,26 provided it was duly constituted as such. It is likewise a given that the family home must be constituted on property owned by the persons constituting it. Indeed as pointed out in Kelley, Jr. v. Planters Products, Inc.27 "[T]he family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latters consent, or on the property of the unmarried head of the family."28 In other words: The family home must be established on the properties of (a) the absolute community, or (b) the conjugal partnership, or (c) the exclusive property of either spouse with the consent of the other. It cannot be established on property held in co-ownership with third persons. However,

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it can be established partly on community property, or conjugal property and partly on the exclusive property of either spouse with the consent of the latter.1avvphi1 If constituted by an unmarried head of a family, where there is no communal or conjugal property existing, it can be constituted only on his or her own property.29 (Emphasis and italics supplied) Therein lies the fatal flaw in the postulate of petitioners. For all their arguments to the contrary, the stark and immutable fact is that the property on which their alleged family home stands is owned by respondents and the question of ownership had been long laid to rest with the finality of the appellate courts judgment in CA-G.R. CV No. 55207. Thus, petitioners continued stay on the subject land is only by mere tolerance of respondents. All told, it is too late in the day for petitioners to raise this issue. Without doubt, the instant case where the family home issue has been vigorously pursued by petitioners is but a clear-cut ploy meant to forestall the enforcement of an otherwise final and executory decision. The execution of a final judgment is a matter of right on the part of the prevailing party whose implementation is mandatory and ministerial on the court or tribunal issuing the judgment.30 The most important phase of any proceeding is the execution of judgment.31 Once a judgment becomes final, the prevailing party should not, through some clever maneuvers devised by an unsporting loser, be deprived of the fruits of the verdict.32 An unjustified delay in the enforcement of a judgment sets at naught the role of courts in disposing of justiciable controversies with finality.33 Furthermore, a judgment if not executed would just be an empty victory for the prevailing party because execution is the fruit and end of the suit and very aptly called the life of the law.34 The issue is moreover factual and, to repeat that trite refrain, the Supreme Court is not a trier of facts. It is not the function of the Court to review, examine and evaluate or weigh the probative value of the evidence presented. A question of fact would arise in such event. Questions of fact cannot be raised in an appeal via certiorari before the Supreme Court and are not proper for its consideration.35 The rationale behind this doctrine is that a review of the findings of fact of the appellate tribunal is not a function this Court normally undertakes. The Court will not weigh the evidence all over again unless there is a showing that the findings of the lower court are totally

devoid of support or are clearly erroneous so as to constitute serious abuse of discretion.36 Although there are recognized exceptions37 to this rule, none exists in this case to justify a departure therefrom. WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated May 31, 2007 in CA-G.R. CV No. 76755 declaring respondents entitled to the writ of execution and ordering petitioners to vacate the subject property, as well as the Resolution dated September 21, 2007 denying the motion for reconsideration, are AFFIRMED. Costs against petitioners. SO ORDERED. CONSUELO YNARES-SANTIAGO Associate Justice

A u s t r i a M a r t i n e z , C a l l e j o , S r . , a n d

FIRST DIVISION

PERLA PATRICIO, 170829 Petitioner, t:

G.R.

G. No.

Presen P a n g a n i b a n , C . J . ( C h a i r p e r s o n ) , Ynares-

C h i c o N a z a r i o , J J . MARCELINO G. DARIO III and THE HONORABLE COURT OF Promulgated: APPEALS, Second Division, Respondents. 2006 November 20,

x ----------------------------------------------------------------------- x DECISION YNARES-SANTIAGO, J.:

- versus Santiago,

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This petition for review on certiorari under Rule 45 of the Rules of Court seeks to annul and set aside the Resolution of the Court of Appeals dated December 9, 2005[1] in CA-G.R. CV No. 80680, which dismissed the complaint for partition filed by petitioner for being contrary to law and evidence. On July 5, 1987, Marcelino V. Dario died intestate. He was survived by his wife, petitioner Perla G. Patricio and their two sons, Marcelino Marc Dario and private respondent Marcelino G. Dario III. Among the properties he left was a parcel of land with a residential house and a pre-school building built thereon situated at 91 Oxford corner Ermin Garcia Streets in Cubao, Quezon City, as evidenced by Transfer Certificate of Title (TCT) No. RT-30731 (175992) of the Quezon City Registry of Deeds, covering an area of seven hundred fifty five (755) square meters, more or less.[2] On August 10, 1987, petitioner, Marcelino Marc and private respondent, extrajudicially settled the estate of Marcelino V. Dario. Accordingly, TCT No. RT30731 (175992) was cancelled and TCT No. R-213963 was issued in the names of petitioner, private respondent and Marcelino Marc. Thereafter, petitioner and Marcelino Marc formally advised private respondent of their intention to partition the subject property and terminate the coownership. Private respondent refused to partition the property hence petitioner and Marcelino Marc instituted an action for partition before the Regional Trial Court of Quezon City which was docketed as Civil Case No. Q-01-44038 and raffled to Branch 78. On October 3, 2002,[3] the trial court ordered the partition of the subject property in the following manner: Perla G. Patricio, 4/6; Marcelino Marc G. Dario, 1/6; and Marcelino G. Dario III, 1/6. The trial court also ordered the sale of the property by public auction wherein all parties concerned may put up their bids. In case of failure, the subject property should be distributed accordingly in the aforestated manner.[4] Private respondent filed a motion for reconsideration which was denied by the trial court on August 11, 2003,[5] hence he appealed before the Court of Appeals, which denied the same on October 19, 2005. However, upon a motion for reconsideration filed by private respondent on December 9, 2005, the appellate court partially reconsidered the October 19, 2005 Decision. In the now assailed Resolution, the Court of Appeals dismissed the complaint for partition filed

by petitioner and Marcelino Marc for lack of merit. It held that the family home should continue despite the death of one or both spouses as long as there is a minor beneficiary thereof. The heirs could not partition the property unless the court found compelling reasons to rule otherwise. The appellate court also held that the minor son of private respondent, who is a grandson of spouses Marcelino V. Dario and Perla G. Patricio, was a minor beneficiary of the family home.[6] Hence, the instant petition on the following issues: I. THE HONORABLE COURT OF APPEALS PATENTLY ERRED IN REVERSING ITS EARLIER DECISION OF OCTOBER 19, 2005 WHICH AFFIRMED IN TOTO THE DECISION OF THE TRIAL COURT DATED 03 OCTOBER 2002 GRANTING THE PARTITION AND SALE BY PUBLIC AUCTION OF THE SUBJECT PROPERTY. II. COROLLARILY, THE HONORABLE COURT OF APPEALS PATENTLY ERRED IN APPLYING ARTICLE 159 IN RELATION TO ARTICLE 154 OF THE FAMILY CODE ON FAMILY HOME INSTEAD OF ARTICLE 494 IN RELATION TO ARTICLES 495 AND 498 OF THE NEW CIVIL CODE ON COOWNERSHIP.[7] The sole issue is whether partition of the family home is proper where one of the co-owners refuse to accede to such partition on the ground that a minor beneficiary still resides in the said home. Private respondent claims that the subject property which is the family home duly constituted by spouses Marcelino and Perla Dario cannot be partitioned while a minor beneficiary is still living therein namely, his 12-year-old son, who is the grandson of the decedent. He argues that as long as the minor is living in the family home, the same continues as such until the beneficiary becomes of age. Private respondent insists that even after the expiration of ten years from the date of death of Marcelino on July 5, 1987,

i.e., even after July 1997, the subject property continues to be considered as the family home considering that his minor son, Marcelino Lorenzo R. Dario IV, who is a beneficiary of the said family home, still resides in the premises. On the other hand, petitioner alleges that the subject property remained as a family home of the surviving heirs of the late Marcelino V. Dario only up to July 5, 1997, which was the 10th year from the date of death of the decedent. Petitioner argues that the brothers Marcelino Marc and private respondent Marcelino III were already of age at the time of the death of their father,[8] hence there is no more minor beneficiary to speak of. The family home is a sacred symbol of family love and is the repository of cherished memories that last during ones lifetime.[9] It is the dwelling house where husband and wife, or by an unmarried head of a family, reside, including the land on which it is situated.[10] It is constituted jointly by the husband and the wife or by an unmarried head of a family.[11] The family home is deemed constituted from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law.[12] The law explicitly provides that occupancy of the family home either by the owner thereof or by any of its beneficiaries must be actual. That which is actual is something real, or actually existing, as opposed to something merely possible, or to something which is presumptive or constructive. Actual occupancy, however, need not be by the owner of the house specifically. Rather, the property may be occupied by the beneficiaries enumerated in Article 154 of the Family Code, which may include the inlaws where the family home is constituted jointly by the husband and wife. But the law definitely excludes maids and overseers. They are not the beneficiaries contemplated by the Code.[13] Article 154 of the Family Code enumerates who are the beneficiaries of a family home: (1) The husband and wife, or an unmarried person who is the head of a family; and (2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support.

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To be a beneficiary of the family home, three requisites must concur: (1) they must be among the relationships enumerated in Art. 154 of the Family Code; (2) they live in the family home; and (3) they are dependent for legal support upon the head of the family. Moreover, Article 159 of the Family Code provides that the family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of 10 years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home. Article 159 of the Family Code applies in situations where death occurs to persons who constituted the family home. Dr. Arturo M. Tolentino comments on the effect of death of one or both spouses or the unmarried head of a family on the continuing existence of the family home: Upon the death of the spouses or the unmarried family head who constituted the family home, or of the spouse who consented to the constitution of his or her separate property as family home, the property will remain as family home for ten years or for as long as there is a minor beneficiary living in it. If there is no more beneficiary left at the time of death, we believe the family home will be dissolved or cease, because there is no more reason for its existence. If there are beneficiaries who survive living in the family home, it will continue for ten years, unless at the expiration of the ten years, there is still a minor beneficiary, in which case the family home continues until that beneficiary becomes of age. After these periods lapse, the property may be partitioned by the

heirs. May the heirs who are beneficiaries of the family home keep it intact by not partitioning the property after the period provided by this article? We believe that although the heirs will continue in ownership by not partitioning the property, it will cease to be a family home.[14] (Emphasis supplied) Prof. Ernesto L. Pineda further explains the import of Art. 159 in this manner: The family home shall continue to exist despite the death of one or both spouses or of the unmarried head of the family. Thereafter, the length of its continued existence is dependent upon whether there is still a minor-beneficiary residing therein. For as long as there is one beneficiary even if the head of the family or both spouses are already dead, the family home will continue to exist (Arts. 153, 159). If there is no minor-beneficiary, it will subsist until 10 years and within this period, the heirs cannot partition the same except when there are compelling reasons which will justify the partition. This rule applies regardless of whoever owns the property or who constituted the family home.[15] (Emphasis supplied) The rule in Article 159 of the Family Code may thus be expressed in this wise: If there are beneficiaries who survive and are living in the family home, it will continue for 10 years, unless at the expiration of 10 years, there is still a minor beneficiary, in which case the family home continues until that beneficiary becomes of age.

It may be deduced from the view of Dr. Tolentino that as a general rule, the family home may be preserved for a minimum of 10 years following the death of the spouses or the unmarried family head who constituted the family home, or of the spouse who consented to the constitution of his or her separate property as family home. After 10 years and a minor beneficiary still lives therein, the family home shall be preserved only until that minor beneficiary reaches the age of majority. The intention of the law is to safeguard and protect the interests of the minor beneficiary until he reaches legal age and would now be capable of supporting himself. However, three requisites must concur before a minor beneficiary is entitled to the benefits of Art. 159: (1) the relationship enumerated in Art. 154 of the Family Code; (2) they live in the family home, and (3) they are dependent for legal support upon the head of the family. Thus, the issue for resolution now is whether Marcelino Lorenzo R. Dario IV, the minor son of private respondent, can be considered as a beneficiary under Article 154 of the Family Code. As to the first requisite, the beneficiaries of the family home are: (1) The husband and wife, or an unmarried person who is the head of a family; and (2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate. The term descendants contemplates all descendants of the person or persons who constituted the family home without distinction; hence, it must necessarily include the grandchildren and great grandchildren of the spouses who constitute a family home. Ubi lex non distinguit nec nos distinguire debemos. Where the law does not distinguish, we should not distinguish. Thus, private respondents minor son, who is also the grandchild of deceased Marcelino V. Dario satisfies the first requisite. As to the second requisite, minor beneficiaries must be actually living in the family home to avail of the benefits derived from Art. 159. Marcelino Lorenzo R. Dario IV, also known as Ino, the son of private respondent and grandson of the decedent Marcelino V. Dario, has been living in the family home since 1994, or within 10 years from the death of the decedent, hence, he satisfies the second requisite. However, as to the third requisite, Marcelino Lorenzo R. Dario IV cannot demand support from his paternal grandmother if he has parents who are capable of supporting him. The liability for legal support falls primarily on Marcelino Lorenzo R. Dario IVs parents, especially his

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father, herein private respondent who is the head of his immediate family. The law first imposes the obligation of legal support upon the shoulders of the parents, especially the father, and only in their default is the obligation imposed on the grandparents. Marcelino Lorenzo R. Dario IV is dependent on legal support not from his grandmother, but from his father. Thus, despite residing in the family home and his being a descendant of Marcelino V. Dario, Marcelino Lorenzo R. Dario IV cannot be considered as beneficiary contemplated under Article 154 because he did not fulfill the third requisite of being dependent on his grandmother for legal support. It is his father whom he is dependent on legal support, and who must now establish his own family home separate and distinct from that of his parents, being of legal age. Legal support, also known as family support, is that which is provided by law, comprising everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.[16] Legal support has the following characteristics: (1) It is personal, based on family ties which bind the obligor and the obligee; (2) It is intransmissible; (3) It cannot be renounced; (4) It cannot be compromised; (5) It is free from attachment or execution; (6) It is reciprocal; (7) It is variable in amount.[17] Professor Pineda is of the view that grandchildren cannot demand support directly from their grandparents if they have parents (ascendants of nearest degree) who are capable of supporting them. This is so because we have to follow the order of support under Art. 199.[18] We agree with this view. The reasons behind Art. 199 as explained by Pineda and Tolentino: the closer the relationship of the relatives, the stronger the tie that binds them. Thus, the obligation to support under Art. 199 which outlines the order of liability for support is imposed first upon the shoulders of the closer relatives and only in their default is the obligation moved to the next nearer relatives and so on. There is no showing that private respondent is without means to support his son; neither is there any evidence to prove that petitioner, as the paternal grandmother, was willing to voluntarily provide for her grandsons legal support. On the contrary, herein petitioner filed for the partition of the property which shows an intention to dissolve the family home, since there is no more reason for its existence after the 10-year period ended in 1997.

With this finding, there is no legal impediment to partition the subject property. The law does not encourage coownerships among individuals as oftentimes it results in inequitable situations such as in the instant case. Coowners should be afforded every available opportunity to divide their co-owned property to prevent these situations from arising. As we ruled in Santos v. Santos,[19] no co-owner ought to be compelled to stay in a co-ownership indefinitely, and may insist on partition on the common property at any time. An action to demand partition is imprescriptible or cannot be barred by laches. Each co-owner may demand at any time the partition of the common property.[20] Since the parties were unable to agree on a partition, the court a quo should have ordered a partition by commissioners pursuant to Section 3, Rule 69 of the Rules of Court. Not more than three competent and disinterested persons should be appointed as commissioners to make the partition, commanding them to set off to the plaintiff and to each party in interest such part and proportion of the property as the court shall direct. When it is made to appear to the commissioners that the real estate, or a portion thereof, cannot be divided without great prejudice to the interest of the parties, the court may order it assigned to one of the parties willing to take the same, provided he pays to the other parties such sum or sums of money as the commissioners deem equitable, unless one of the parties interested ask that the property be sold instead of being so assigned, in which case the court shall order the commissioners to sell the real estate at public sale, and the commissioners shall sell the same accordingly.[21] The partition of the subject property should be made in accordance with the rule embodied in Art. 996 of the Civil Code.[22] Under the law of intestate succession, if the widow and legitimate children survive, the widow has the same share as that of each of the children. However, since only one-half of the conjugal property which is owned by the decedent is to be allocated to the legal and compulsory heirs (the other half to be given exclusively to the surviving spouse as her conjugal share of the property), the widow will have the same share as each of her two surviving children. Hence, the respective shares of the subject property, based on the law on intestate succession are: (1) Perla Generosa Dario, 4/6; (2)

Marcelino Marc G. Dario II, 1/6 and (3) Marcelino G. Dario III, 1/6. In Vda. de Daffon v. Court of Appeals,[23] we held that an action for partition is at once an action for declaration of co-ownership and for segregation and conveyance of a determinate portion of the properties involved. If the court after trial should find the existence of co-ownership among the parties, the court may and should order the partition of the properties in the same action.[24] WHEREFORE, the petition is GRANTED. The Resolution of the Court of Appeals in CA-G.R. CV No. 80680 dated December 9, 2005, is REVERSED and SET ASIDE. The case is REMANDED to the Regional Trial Court of Quezon City, Branch 78, who is directed to conduct a PARTITION BY COMMISSIONERS and effect the actual physical partition of the subject property, as well as the improvements that lie therein, in the following manner: Perla G. Dario, 4/6; Marcelino Marc G. Dario, 1/6 and Marcelino G. Dario III, 1/6. The trial court is DIRECTED to appoint not more than three (3) competent and disinterested persons, who should determine the technical metes and bounds of the property and the proper share appertaining to each heir, including the improvements, in accordance with Rule 69 of the Rules of Court. When it is made to the commissioners that the real estate, or a portion thereof, cannot be divided without great prejudice to the interest of the parties, the court a quo may order it assigned to one of the parties willing to take the same, provided he pays to the other parties such sum or sums of money as the commissioners deem equitable, unless one of the parties interested ask that the property be sold instead of being so assigned, in which case the court shall order the commissioners to sell the real estate at public sale, and the commissioners shall sell the same accordingly, and thereafter distribute the proceeds of the sale appertaining to the just share of each heir. No pronouncement as to costs. SO ORDERED. CONSUELO YNARES-SANTIAGO Associate Justice PATERNITY AND FILIATION Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 105625 January 24, 1994

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MARISSA BENITEZ-BADUA, petitioner, vs. COURT OF APPEALS, VICTORIA BENITEZ LIRIO AND FEODOR BENITEZ AGUILAR, respondents. Reynaldo M. Alcantara for petitioner. Augustus Cesar E. Azura for private respondents. PUNO, J.: This is a petition for review of the Decision of the 12th Division of the Court of Appeals in CA-G.R. No. CV No. 30862 dated May 29, 1992. 1 The facts show that the spouses Vicente Benitez and Isabel Chipongian owned various properties especially in Laguna. Isabel died on April 25, 1982. Vicente followed her in the grave on November 13, 1989. He died intestate. The fight for administration of Vicente's estate ensued. On September 24, 1990, private respondents Victoria Benitez-Lirio and Feodor Benitez Aguilar (Vicente's sister and nephew, respectively) instituted Sp. Proc. No. 797 (90) before the RTC of San Pablo City, 4th Judicial Region, Br. 30. They prayed for the issuance of letters of administration of Vicente's estate in favor of private respondent Aguilar. They alleged, inter alia, viz.: xxx xxx xxx 4. The decedent is survived by no other heirs or relatives be they ascendants or descendants, whether legitimate, illegitimate or legally adopted; despite claims or representation to the contrary, petitioners can well and truly establish, given the chance to do so, that said decedent and his spouse Isabel Chipongian who pre-deceased him, and whose estate had earlier been settled extrajudicial, were without issue and/or without descendants whatsoever, and that one Marissa Benitez-Badua who was raised and cared by them since childhood is, in fact, not related to them by blood, nor legally adopted, and is therefore not a legal heir; . . . On November 2, 1990, petitioner opposed the petition. She alleged that she is the sole heir of the deceased Vicente Benitez and capable of administering his estate. The

parties further exchanged reply and rejoinder to buttress their legal postures. The trial court then received evidence on the issue of petitioner's heirship to the estate of the deceased. Petitioner tried to prove that she is the only legitimate child of the spouses Vicente Benitez and Isabel Chipongian. She submitted documentary evidence, among others: (1) her Certificate of Live Birth (Exh. 3); (2) Baptismal Certificate (Exh. 4); (3) Income Tax Returns and Information Sheet for Membership with the GSIS of the late Vicente naming her as his daughter (Exhs. 10 to 21); and (4) School Records (Exhs. 5 & 6). She also testified that the said spouses reared an continuously treated her as their legitimate daughter. On the other hand, private respondents tried to prove, mostly thru testimonial evidence, that the said spouses failed to beget a child during their marriage; that the late Isabel, then thirty six (36) years of age, was even referred to Dr. Constantino Manahan, a noted obstetriciangynecologist, for treatment. Their primary witness, Victoria Benitez-Lirio, elder sister of the late Vicente, then 77 years of age, 2 categorically declared that petitioner was not the biological child of the said spouses who were unable to physically procreate. On December 17, 1990, the trial court decided in favor of the petitioner. It dismissed the private respondents petition for letters and administration and declared petitioner as the legitimate daughter and sole heir of the spouses Vicente O. Benitez and Isabel Chipongian. The trial court relied on Articles 166 and 170 of the Family Code. On appeal, however, the Decision of the trial court was reversed on May 29, 1992 by the 17th Division of the Court of Appeals. The dispositive portion of the Decision of the appellate court states: WHEREFORE, the decision appealed from herein is REVERSED and another one entered declaring that appellee Marissa Benitez is not the biological daughter or child by nature of the spouse Vicente O. Benitez and Isabel Chipongian and, therefore, not a legal heir of the deceased Vicente O. Benitez. Her opposition to the petition for the appointment of an administrator of the intestate of the deceased Vicente O. Benitez is, consequently, DENIED; said petition and the proceedings already conducted therein reinstated; and the lower court is directed to proceed with the hearing of Special proceeding

No. SP-797 (90) in accordance with law and the Rules. Costs against appellee. SO ORDERED. In juxtaposition, the appellate court held that the trial court erred in applying Articles 166 and 170 of the Family Code. In this petition for review, petitioner contends: 1. The Honorable Court of Appeals committed error of law and misapprehension of facts when it failed to apply the provisions, more particularly, Arts. 164, 166, 170 and 171 of the Family Code in this case and in adopting and upholding private respondent's theory that the instant case does not involve an action to impugn the legitimacy of a child; 2. Assuming arguendo that private respondents can question or impugn directly or indirectly, the legitimacy of Marissa's birth, still the respondent appellate Court committed grave abuse of discretion when it gave more weight to the testimonial evidence of witnesses of private respondents whose credibility and demeanor have not convinced the trial court of the truth and sincerity thereof, than the documentary and testimonial evidence of the now petitioner Marissa BenitezBadua; 3. The Honorable Court of Appeals has decided the case in a way not in accord with law or with applicable decisions of the supreme Court, more particularly, on prescription or laches. We find no merit to the petition. Petitioner's insistence on the applicability of Articles 164, 166, 170 and 171 of the Family Code to the case at bench cannot be sustained. These articles provide: Art. 164. Children conceived or born during the marriage of the parents are legitimate.

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Children conceived as a result of artificial insemination of the wife with sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child. Art. 166. Legitimacy of child may be impugned only on the following grounds: 1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of: a ) t h e p h y s i c a l i n c a p a c i t y o f t h e h u s b a n d

d t o h a v e s e x u a l i n t e r c o u r s e w i t h h i s w i f e ; b ) t h e f a c t t h a t t h e h u s b a n a n d w i f e w e r e l i v i n g s e p a r a t e l y i n s u c h a w a y t h a t s e x u a l i n t e r c o u r s

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e w a s n o t p o s s i b l e ; o r c ) s e r i o u s i l l n e s s o f t h e h u s b a n d , w h i c h a b s o l u

t e l y p r e v e n t e d s e x u a l i n t e r c o u r s e . 2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband except in the instance provided in the second paragraph of Article 164; or 3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence. Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded. If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should

reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, which ever is earlier. Art. 171. The heirs of husband may impugn filiation of the child within period prescribed in preceding Article only in following case: the the the the the

1) If the husband should die before the expiration of the period fixed for bringing his action; 2) If he should die after the filing of the complaint, without having desisted therefrom; or 3) If the child was born after the death of the husband. A careful reading of the above articles will show that they do not contemplate a situation, like in the instant case, where a child is alleged not to be the child of nature or biological child of a certain couple. Rather, these articles govern a situation where a husband (or his heirs) denies as his own a child of his wife. Thus, under Article 166, it is the husband who can impugn the legitimacy of said child by proving: (1) it was physically impossible for him to have sexual intercourse, with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child; (2) that for biological or other scientific reasons, the child could not have been his child; (3) that in case of children conceived through artificial insemination, the written authorization or ratification by either parent was obtained through mistake, fraud, violence, intimidation or undue influence. Articles 170 and 171 reinforce this reading as they speak of the prescriptive period within which the husband or any of his heirs should file the action impugning the legitimacy of said child. Doubtless then, the appellate court did not err when it refused to apply these articles to the case at bench. For the case at bench is not one where the heirs of the late Vicente are contending that petitioner is not his child by Isabel. Rather, their clear submission is that petitioner was not born to Vicente and Isabel. Our ruling in Cabatbat-Lim vs. Intermediate Appellate Court, 166 SCRA 451, 457 cited in the impugned decision is apropos, viz.:

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Petitioners' recourse to Article 263 of the New Civil Code [now Article 170 of the Family Code] is not well-taken. This legal provision refers to an action to impugn legitimacy. It is inapplicable to this case because this is not an action to impugn the legitimacy of a child, but an action of the private respondents to claim their inheritance as legal heirs of their childless deceased aunt. They do not claim that petitioner Violeta Cabatbat Lim is an illegitimate child of the deceased, but that she is not the decedent's child at all. Being neither legally adopted child, nor an acknowledged natural child, nor a child by legal fiction of Esperanza Cabatbat, Violeta is not a legal heir of the deceased. We now come to the factual finding of the appellate court that petitioner was not the biological child or child of nature of the spouses Vicente Benitez and Isabel Chipongian. The appellate court exhaustively dissected the evidence of the parties as follows: . . . And on this issue, we are constrained to say that appellee's evidence is utterly insufficient to establish her biological and blood kinship with the aforesaid spouses, while the evidence on record is strong and convincing that she is not, but that said couple being childless and desirous as they were of having a child, the late Vicente O. Benitez took Marissa from somewhere while still a baby, and without he and his wife's legally adopting her treated, cared for, reared, considered, and loved her as their own true child, giving her the status as not so, such that she herself had believed that she was really their daughter and entitled to inherit from them as such. The strong and convincing referred to us are the following: evidence

First, the evidence is very cogent and clear that Isabel Chipongian never became pregnant and, therefore, never delivered a child. Isabel's own only brother and sibling, Dr. Lino Chipongian, admitted that his sister had already been married for ten years and was already about 36 years old and still she has not

begotten or still could not bear a child, so that he even had to refer her to the late Dr. Constantino Manahan, a wellknown and eminent obstetrician-gynecologist and the OB of his mother and wife, who treated his sister for a number of years. There is likewise the testimony of the elder sister of the deceased Vicente O. Benitez, Victoria Benitez Lirio, who then, being a teacher, helped him (he being the only boy and the youngest of the children of their widowed mother) through law school, and whom Vicente and his wife highly respected and consulted on family matters, that her brother Vicente and his wife Isabel being childless, they wanted to adopt her youngest daughter and when she refused, they looked for a baby to adopt elsewhere, that Vicente found two baby boys but Isabel wanted a baby girl as she feared a boy might grow up unruly and uncontrollable, and that Vicente finally brought home a baby girl and told his elder sister Victoria he would register the baby as his and his wife's child. Victoria Benitez Lirio was already 77 years old and too weak to travel and come to court in San Pablo City, so that the taking of her testimony by the presiding judge of the lower court had to be held at her residence in Paraaque, MM. Considering, her advanced age and weak physical condition at the time she testified in this case, Victoria Benitez Lirio's testimony is highly trustworthy and credible, for as one who may be called by her Creator at any time, she would hardly be interested in material things anymore and can be expected not to lie, especially under her oath as a witness. There were also several disinterested neighbors of the couple Vicente O. Benitez and Isabel Chipongian in Nagcarlan, Laguna (Sergio Fule, Cecilia Coronado, and Benjamin C. Asendido) who testified in this case and declared that they used to see Isabel almost everyday especially as she had drugstore in the ground floor of her house, but they never saw her to have been pregnant, in 1954 (the year appellee Marissa Benitez was allegedly born, according to her birth certificate Exh. "3") or at any time at all, and that it is also

true with the rest of their townmates. Ressureccion A. Tuico, Isabel Chipongian's personal beautician who used to set her hair once a week at her (Isabel's) residence, likewise declared that she did not see Isabel ever become pregnant, that she knows that Isabel never delivered a baby, and that when she saw the baby Marissa in her crib one day she went to Isabel's house to set the latter's hair, she was surprised and asked the latter where the baby came from, and "she told me that the child was brought by Atty. Benitez and told me not to tell about it" (p. 10, tsn, Nov. 29, 1990). The facts of a woman's becoming pregnant and growing big with child, as well as her delivering a baby, are matters that cannot be hidden from the public eye, and so is the fact that a woman never became pregnant and could not have, therefore, delivered a baby at all. Hence, if she is suddenly seen mothering and caring for a baby as if it were her own, especially at the rather late age of 36 (the age of Isabel Chipongian when appellee Marissa Benitez was allegedly born), we can be sure that she is not the true mother of that baby. Second, appellee's birth certificate Exh. "3" with the late Vicente O. Benitez appearing as the informant, is highly questionable and suspicious. For if Vicente's wife Isabel, who wads already 36 years old at the time of the child's supposed birth, was truly the mother of that child, as reported by Vicente in her birth certificate, should the child not have been born in a hospital under the experienced, skillful and caring hands of Isabel's obstetriciangynecologist Dr. Constantino Manahan, since delivery of a child at that late age by Isabel would have been difficult and quite risky to her health and even life? How come, then, that as appearing in appellee's birth certificate, Marissa was supposedly born at the Benitez home in Avenida Rizal, Nagcarlan, Laguna, with no physician or even a midwife attending?

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At this juncture, it might be meet to mention that it has become a practice in recent times for people who want to avoid the expense and trouble of a judicial adoption to simply register the child as their supposed child in the civil registry. Perhaps Atty. Benitez, though a lawyer himself, thought that he could avoid the trouble if not the expense of adopting the child Marissa through court proceedings by merely putting himself and his wife as the parents of the child in her birth certificate. Or perhaps he had intended to legally adopt the child when she grew a little older but did not come around doing so either because he was too busy or for some other reason. But definitely, the mere registration of a child in his or her birth certificate as the child of the supposed parents is not a valid adoption, does not confer upon the child the status of an adopted child and the legal rights of such child, and even amounts of simulation of the child's birth or falsification of his or her birth certificate, which is a public document. Third, if appellee Marissa Benitez is truly the real, biological daughter of the late Vicente O. Benitez and his wife Isabel Chipongian, why did he and Isabel's only brother and sibling Dr. Nilo Chipongian, after Isabel's death on April 25, 1982, state in the extrajudicial settlement Exh. "E" that they executed her estate, "that we are the sole heirs of the deceased ISABEL CHIPONGIAN because she died without descendants or ascendants?" Dr. Chipongian, placed on a witness stand by appellants, testified that it was his brother-in-law Atty. Vicente O. Benitez who prepared said document and that he signed the same only because the latter told him to do so (p. 24, tsn, Nov. 22, 1990). But why would Atty. Benitez make such a statement in said document, unless appellee Marissa Benitez is not really his and his wife's daughter and descendant and, therefore, not his deceased wife's legal heir? As for Dr. Chipongian, he lamely explained that he signed said document without understanding completely the meaning of the

words "descendant and ascendant" (p. 21, tsn, Nov. 22, 1990). This we cannot believe, Dr. Chipongian being a practicing pediatrician who has even gone to the United States (p. 52, tsn, Dec. 13, 1990). Obviously, Dr. Chipongian was just trying to protect the interests of appellee, the foster-daughter of his deceased sister and brother-inlaw, as against those of the latter's collateral blood relatives. Fourth, it is likewise odd and strange, if appellee Marissa Benitez is really the daughter and only legal heir of the spouses Vicente O. Benitez and Isabel Chipongian, that the latter, before her death, would write a note to her husband and Marissa stating that: even without any legal papers, I wish that my husband and my child or only daughter will inherit what is legally my own property, in case I die without a will, and in the same handwritten note, she even implored her husband that any inheritance due him from my property when he die to make our own daughter his sole heir. This do [sic] not mean what he legally owns or his inherited property. I leave him to decide for himself regarding those. (Exhs. "F-1", "F-1-A" and "F-1-B") We say odd and strange, for if Marissa Benitez is really the daughter of the spouses Vicente O. Benitez and Isabel Chipongian, it would not have been necessary for Isabel to write and plead for the foregoing requests to her husband, since Marissa would be their legal heir by operation of law. Obviously, Isabel Chipongian had to implore and supplicate her husband to give appellee although without any legal papers her properties

when she dies, and likewise for her husband to give Marissa the properties that he would inherit from her (Isabel), since she well knew that Marissa is not truly their daughter and could not be their legal heir unless her (Isabel's) husband makes her so. Finally, the deceased Vicente O. Benitez' elder sister Victoria Benitez Lirio even testified that her brother Vicente gave the date December 8 as Marissa's birthday in her birth certificate because that date is the birthday of their (Victoria and Vicente's) mother. It is indeed too much of a coincidence for the child Marissa and the mother of Vicente and Victoria to have the same birthday unless it is true, as Victoria testified, that Marissa was only registered by Vicente as his and his wife's child and that they gave her the birth date of Vicente's mother. We sustain these findings as they are not unsupported by the evidence on record. The weight of these findings was not negated by documentary evidence presented by the petitioner, the most notable of which is her Certificate of Live Birth (Exh. "3") purportedly showing that her parents were the late Vicente Benitez and Isabel Chipongian. This Certificate registered on December 28, 1954 appears to have been signed by the deceased Vicente Benitez. Under Article 410 of the New Civil Code, however, "the books making up the Civil Registry and all documents relating thereto shall be considered public documents and shall be prima facieevidence of the facts therein stated." As related above, the totality of contrary evidence, presented by the private respondents sufficiently rebutted the truth of the content of petitioner's Certificate of Live Birth. of said rebutting evidence, the most telling was the Deed of Extra-Judicial Settlement of the Estate of the Deceased Isabel Chipongian (Exh. "E") executed on July 20, 1982 by Vicente Benitez, and Dr. Nilo Chipongian, a brother of Isabel. In their notarized document, they stated that "(they) are the sole heirs of the deceased Isabel Chipongian because she died without descendants or ascendants". In executing this Deed, Vicente Benitez effectively repudiated the Certificate of Live Birth of petitioner where it appeared that he was petitioner's father. The repudiation was made twenty-eight years after he signed petitioner's Certificate of Live Birth.

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IN VIEW WHEREOF, the petition for review is dismissed for lack of merit. Costs against petitioner. SO ORDERED. Narvasa, C.J., Padilla, Regalado, JJ., concur. THIRD DIVISION [G.R. No. 138493. June 15, 2000] TEOFISTA BABIERA, petitioner, vs. PRESENTACION B. CATOTAL, respondent. DECISION PANGANIBAN, J.: A birth certificate may be ordered cancelled upon adequate proof that it is fictitious. Thus, void is a certificate which shows that the mother was already fifty-four years old at the time of the child's birth and which was signed neither by the civil registrar nor by the supposed mother. Because her inheritance rights are adversely affected, the legitimate child of such mother is a proper party in the proceedings for the cancellation of the said certificate. Statement of the Case Submitted for this Courts consideration is a Petition for Review on Certiorari[1] under Rule 45 of the Rules of Court, seeking reversal of the March 18, 1999 Decision[2] of the Court of Appeals[3](CA) in CA-GR CV No. 56031. Affirming the Regional Trial Court of Lanao del Norte in Special Proceedings No. 3046, the CA ruled as follows: "IN VIEW HEREOF, the appealed decision is hereby AFFIRMED. Accordingly, the instant appeal is DISMISSED for lack of merit. Costs against the defendantappellant, TEOFISTA BABIERA, a.k.a. Teofista Guinto."[4] The dispositive portion of the affirmed RTC Decision reads: "WHEREFORE, in view of the foregoing findings and pronouncements of the Court, judgment is hereby rendered, to wit[:] 1) Declaring the Certificate of Birth of respondent Teofista Guinto as null and void 'ab initio';

2) Ordering the respondent Local Civil Registrar of Iligan to cancel from the registry of live birth of Iligan City BIRTH CERTIFICATE recorded as Registry No. 16035; Furnish copies of this decision to the Local Civil Registrar of Iligan City, the City Prosecutor, counsel for private respondent Atty. Tomas Cabili and to counsel for petitioner. SO ORDERED." The Facts The undisputed facts are summarized by the Court of Appeals in this wise: "Presentacion B. Catotal (hereafter referred to as PRESENTACION) filed with the Regional Trial Court of Lanao del Norte, Branch II, Iligan City, a petition for the cancellation of the entry of birth of Teofista Babiera (herafter referred to as TEOFISTA) in the Civil Registry of Iligan City. The case was docketed as Special Proceedings No. 3046. "From the petition filed, PRESENTACION asserted 'that she is the only surviving child of the late spouses Eugenio Babiera and Hermogena Cariosa, who died on May 26, 1996 and July 6, 1990 respectively; that on September 20, 1996 a baby girl was delivered by 'hilot' in the house of spouses Eugenio and Hermogena Babiera and without the knowledge of said spouses, Flora Guinto, the mother of the child and a housemaid of spouses Eugenio and Hermogena Babiera, caused the registration/recording of the facts of birth of her child, by simulating that she was the child of the spouses Eugenio, then 65 years old and Hermogena, then 54 years old, and made Hermogena Babiera appear as the mother by forging her signature x x x; that petitioner, then 15 years old, saw with her own eyes and personally witnessed Flora Guinto give birth to Teofista Guinto, in their house, assisted by 'hilot'; that the birth certificate x x x of Teofista Guinto is void ab initio, as it was totally a simulated birth, signature of informant

forged, and it contained false entries, to wit: a) The child is made to appear as the legitimate child of the late spouses Eugenio Babiera and Hermogena Cariosa, when she is not; b) The signature of Hermogena Cariosa, the mother, is falsified/forged. She was not the informant; c) The family name BABIERA is false and unlawful and her correct family name is GUINTO, her mother being single; d) Her real mother was Flora Guinto and her status, an illegitimate child; The natural father, the carpenter, did not sign it; that the respondent Teofista Barbiera's birth certificate is void ab initio, and it is patently a simulation of birth, since it is clinically and medically impossible for the supposed parents to bear a child in 1956 because: a) Hermogena Cariosa Babiera, was already 54 years old; b) Hermogena's last child birth was in the year 1941, the year petitioner was born; c) Eugenio was already 65 years old, that the void and simulated birth certificate of Teofista Guinto would affect the hereditary rights of petitioner who inherited the estate of cancelled and declared void and theretofore she prays that after publication, notice and hearing, judgment [be] render[ed] declaring x x x the certificate of birth of respondent Teofista Guinto as declared void, invalid and ineffective and ordering the respondent local civil registrar of Iligan to cancel from the registry of live birth of Iligan City BIRTH CERTIFICATE recorded as Registry No. 16035. "Finding the petition to be sufficient in form and substance, the trial court issued an order directing the publication of the petition and the date of hearing thereof 'in a newspaper, the Local Civil Registrar of Iligan City, the office of the City Prosecutor of Iligan City and TEOFISTA. "TEOFISTA filed a motion to dismiss on the grounds that 'the petition states no cause of action, it being an attack on the legitimacy of the respondent as the child of the spouses Eugenio Babiera and Hermogena Cariosa Babiera; that plaintiff has no legal capacity to file the instant petition pursuant to

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Article 171 of the Family Code; and finally that the instant petition is barred by prescription in accordance with Article 170 of the Family Code.' The trial court denied the motion to dismiss. "Subsequently, 'Attys. Padilla, Ulindang and Padilla appeared and filed an answer/opposition in behalf of private respondent Teofista Babiera, [who] was later on substituted by Atty. Cabili as counsel for private respondent.' "In the answer filed, TEOFISTA averred 'that she was always known as Teofista Babiera and not Teofista Guinto; that plaintiff is not the only surviving child of the late spouses Eugenio Babiera and Hermogena C. Babiera, for the truth of the matter [is that] plantiff Presentacion B. V. Catotal and [defendant] Teofista Babiera are sisters of the fullblood. Her Certificate of Birth, signed by her mother Hermogena Babiera, x x x Certificate of Baptism, x x x Student's Report Card x x x all incorporated in her answer, are eloquent testimonies of her filiation. By way of special and affirmative defenses, defendant/respondent contended that the petition states no cause of action, it being an attack on the legitimacy of the respondent as the child of the spouses Eugenio Babiera and Hermogena Carioza Babiera; that plaintiff has no legal capacity to file the instant petition pursuant to Article 171 of the Family Code; and finally that the instant petition is barred by prescription in accordance with Article 170 of the Family Code." [5] Ruling of the Court of Appeals The Court of Appeals held that the evidence adduced during trial proved that petitioner was not the biological child of Hermogena Babiera. It also ruled that no evidence was presented to show that Hermogena became pregnant in 1959. It further observed that she was already 54 years old at the time, and that her last pregnancy had occurred way back in 1941. The CA noted that the supposed birth took place at home, notwithstanding the advanced age of Hermogena and its concomitant medical complications. Moreover, petitioner's Birth Certificate was not signed by the local civil registrar, and the signature therein, which

was purported to be that of Hermogena, was different from her other signatures. The CA also deemed inapplicable Articles 170 and 171 of the Family Code, which stated that only the father could impugn the child's legitimacy, and that the same was not subject to a collateral attack. It held that said provisions contemplated a situation wherein the husband or his heirs asserted that the child of the wife was not his. In this case, the action involved the cancellation of the childs Birth Certificate for being void ab initio on the ground that the child did not belong to either the father or the mother. Hence, this appeal.[6] Issues Petitioner presents assignment of errors: the following

injured by the judgment in the suit, or the party entitled to the avails of the suit."[9] The interest of respondent in the civil status of petitioner stems from an action for partition which the latter filed against the former.[10] The case concerned the properties inherited by respondent from her parents. Moreover, Article 171 of the Family Code is not applicable to the present case. A close reading of this provision shows that it applies to instances in which the father impugns the legitimacy of his wifes child. The provision, however, presupposes that the child was the undisputed offspring of the mother. The present case alleges and shows that Hermogena did not give birth to petitioner. In other words, the prayer herein is not to declare that petitioner is an illegitimate child of Hermogena, but to establish that the former is not the latter's child at all. Verily, the present action does not impugn petitioners filiation to Spouses Eugenio and Hermogena Babiera, because there is no blood relation to impugn in the first place. In Benitez-Badua v. Court of Appeals,[11] the Court ruled thus: "Petitioners insistence on the applicability of Articles 164, 166, 170 and 171 of the Family Code to the case at bench cannot be sustained. These articles provide: x x x.....x x x.....x x x

"1) Respondent (plaintiff in the lower court a quo) does not have the legal capacity to file the special proceeding of appeal under CA GR No. CV56031 subject matter of this review on certiorari; 2) The special proceeding on appeal under CA GR No. CV56031 is improper and is barred by [the] statute of limitation (prescription); [and] 3) The Honorable Court of Appeals, the fifteenth division utterly failed to hold, that the ancient public record of petitioner's birth is superior to the self-serving oral testimony of respondent."[7] The Courts Ruling The Petition is not meritorious. First Issue: Subject of the Present Action Petitioner contends that respondent has no standing to sue, because Article 171[8] of the Family Code states that the child's filiation can be impugned only by the father or, in special circumstances, his heirs. She adds that the legitimacy of a child is not subject to a collateral attack. This argument is incorrect. Respondent has the requisite standing to initiate the present action. Section 2, Rule 3 of the Rules of Court, provides that a real party in interest is one "who stands to be benefited or

"A careful reading of the above articles will show that they do not contemplate a situation, like in the instant case, where a child is alleged not to be the child of nature or biological child of a certain couple. Rather, these articles govern a situation where a husband (or his heirs) denies as his own a child of his wife. Thus, under Article 166, it is the husband who can impugn the legitimacy of said child by proving: (1) it was physically impossible for him to have sexual intercourse, with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child; (2) that for biological or other scientific reasons, the child could not have been his child; (3) that in case of children conceived through artificial insemination, the written authorization or ratification by either parent was obtained through mistake, fraud, violence, intimidation or undue

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influence. Articles 170 and 171 reinforce this reading as they speak of the prescriptive period within which the husband or any of his heirs should file the action impugning the legitimacy of said child. Doubtless then, the appellate court did not err when it refused to apply these articles to the case at bench. For the case at bench is not one where the heirs of the late Vicente are contending that petitioner is not his child by Isabel. Rather, their clear submission is that petitioner was not born to Vicente and Isabel. Our ruling in Cabatbat-Lim vs. Intermediate Appellate Court, 166 SCRA 451, 457 cited in the impugned decision is apropos, viz: Petitioners recourse to Article 263 of the New Civil Code [now Art. 170 of the Family Code] is not welltaken. This legal provision refers to an action to impugn legitimacy. It is inapplicable to this case because this is not an action to impugn the legitimacy of a child, but an action of the private respondents to claim their inheritance as legal heirs of their childless deceased aunt. They do not claim that petitioner Violeta Cabatbat Lim is an illegitimate child of the deceased, but that she is not the decedents child at all. Being neither [a] legally adopted child, nor an acknowledged natural child, nor a child by legal fiction of Esperanza Cabatbat, Violeta is not a legal heir of the deceased."[12] (Emph asis supplied.) Second Issue: Prescription Petitioner next contends that the action to contest her status as a child of the late Hermogena Babiera has already prescribed. She cites Article 170 of the Family Code which provides the prescriptive period for such action:

"Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded. "If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier." This argument is bereft of merit. The present action involves the cancellation of petitioners Birth Certificate; it does not impugn her legitimacy. Thus, the prescriptive period set forth in Article 170 of the Family Code does not apply. Verily, the action to nullify the Birth Certificate does not prescribe, because it was allegedly void ab initio.[13] Third Issue: Presumption in Favor of the Birth Certificate Lastly, petitioner argues that the evidence presented, especially Hermogenas testimony that petitioner was not her real child, cannot overcome the presumption of regularity in the issuance of the Birth Certificate. While it is true that an official document such as petitioners Birth Certificate enjoys the presumption of regularity, the specific facts attendant in the case at bar, as well as the totality of the evidence presented during trial, sufficiently negate such presumption. First, there were already irregularities regarding the Birth Certificate itself. It was not signed by the local civil registrar.[14]More important, the Court of Appeals observed that the mothers signature therein was different from her signatures in other documents presented during the trial. Second, the circumstances surrounding the birth of petitioner show that Hermogena is not the former's real mother. For one, there is no evidence of Hermogenas pregnancy,

such as medical records and doctors prescriptions, other than the Birth Certificate itself. In fact, no witness was presented to attest to the pregnancy of Hermogena during that time. Moreover, at the time of her supposed birth, Hermogena was already 54 years old. Even if it were possible for her to have given birth at such a late age, it was highly suspicious that she did so in her own home, when her advanced age necessitated proper medical care normally available only in a hospital. The most significant piece of evidence, however, is the deposition of Hermogena Babiera which states that she did not give birth to petitioner, and that the latter was not hers nor her husband Eugenios. The deposition reads in part: "q.....Who are your children? a.....Presentation Florentino Babiera. and

q.....Now, this Teofista Babiera claims that she is your legitimate child with your husband Eugenio Babiera, what can you say about that? a.....She is not our child. x x x.....x x x.....x x x q.....Do you recall where she was born? a.....In our house because her mother was our house helper. q.....Could you recall for how long if ever this Teofista Babiera lived with you in your residence? a.....Maybe in 1978 but she [would] always go ou[t] from time to time. q.....Now, during this time, do you recall if you ever assert[ed] her as your daughter with your husband? a.....No, sir."[15] Relying merely on the assumption of validity of the Birth Certificate, petitioner has presented no other evidence other than the said document to show that she is really Hermogenas child. Neither has she provided any reason why her supposed mother would make a deposition stating

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that the former was not the latter's child at all. All in all, we find no reason to reverse or modify the factual finding of the trial and the appellate courts that petitioner was not the child of respondents parents. WHEREFORE, the hereby DENIED and Decision AFFIRMED. petitioner. SO ORDERED. Melo, (Chairman), Purisima, and GonzagaReyes, JJ., concur. THIRD DIVISION [G.R. No. 142877. October 2, 2001] JINKIE CHRISTIE A. DE JESUS and JACQUELINE A. DE JESUS, minors, represented by their mother, CAROLINA A. DE JESUS, petitioners, vs. THE ESTATE OF DECEDENT JUAN GAMBOA DIZON, ANGELINA V. DIZON, CARLOS DIZON, FELIPE DIZON, JUAN DIZON, JR. and MARYLIN DIZON and as proper parties: FORMS MEDIA CORP., QUAD MANAGEMENT CORP., FILIPINAS PAPER SALES CO., INC. and AMITY CONSTRUCTION & INDUSTRIAL ENTERPRISES, INC., respondents. DECISION VITUG, J.: The petition involves the case of two illegitimate children who, having been born in lawful wedlock, claim to be the illegitimate scions of the decedent in order to enforce their respective shares in the latters estate under the rules on succession. Danilo B. de Jesus and Carolina Aves de Jesus got married on 23 August 1964. It was during this marriage that Jacqueline A. de Jesus and Jinkie Christie A. de Jesus, herein petitioners, were born, the former on 01 March 1979 and the latter on 06 July 1982. In a notarized document, dated 07 June 1991, Juan G. Dizon acknowledged Jacqueline and Jinkie de Jesus as being his own illegitimate children by Carolina Aves de Jesus. Juan G. Dizon died intestate on 12 March 1992, leaving behind considerable assets consisting of shares of stock in various corporations and some real property. It was on the strength of his notarized acknowledgment that petitioners filed a complaint on 01 July 1993 for Partition with Inventory and Accounting Petition is the assailed Costs against

of the Dizon estate with the Regional Trial Court, Branch 88, of Quezon City. Respondents, the surviving spouse and legitimate children of the decedent Juan G. Dizon, including the corporations of which the deceased was a stockholder, sought the dismissal of the case, arguing that the complaint, even while denominated as being one for partition, would nevertheless call for altering the status of petitioners from being the legitimate children of the spouses Danilo de Jesus and Carolina de Jesus to instead be the illegitimate children of Carolina de Jesus and deceased Juan Dizon. The trial court denied, due to lack of merit, the motion to dismiss and the subsequent motion for reconsideration on, respectively, 13 September 1993 and 15 February 1994. Respondents assailed the denial of said motions before the Court of Appeals. On 20 May 1994, the appellate court upheld the decision of the lower court and ordered the case to be remanded to the trial court for further proceedings. It ruled that the veracity of the conflicting assertions should be threshed out at the trial considering that the birth certificates presented by respondents appeared to have effectively contradicted petitioners allegation of illegitimacy. On 03 January 2000, long after submitting their answer, pre-trial brief and several other motions, respondents filed an omnibus motion, again praying for the dismissal of the complaint on the ground that the action instituted was, in fact, made to compel the recognition of petitioners as being the illegitimate children of decedent Juan G. Dizon and that the partition sought was merely an ulterior relief once petitioners would have been able to establish their status as such heirs. It was contended, in fine, that an action for partition was not an appropriate forum to likewise ascertain the question of paternity and filiation, an issue that could only be taken up in an independent suit or proceeding. Finding credence in the argument of respondents, the trial court, ultimately, dismissed the complaint of petitioners for lack of cause of action and for being improper.[1] It decreed that the declaration of heirship could only be made in a special proceeding inasmuch as petitioners were seeking the establishment of a status or right. Petitioners assail the foregoing order of the trial court in the instant petition for review on certiorari. Basically, petitioners maintain that their recognition as being illegitimate children of the decedent, embodied in an authentic writing, is in itself sufficient to establish their status as such and does not require a separate action for

judicial approval following the doctrine enunciated in Divinagracia vs. Bellosillo.[2] In their comment, respondents submit that the rule in Divinagracia being relied by petitioners is inapplicable to the case because there has been no attempt to impugn legitimate filiation in Divinagracia. In praying for the affirmance of dismissal of the complaint, respondents count on the case of Sayson vs. Court of Appeals,[3] which has ruled that the issue of legitimacy cannot be questioned in a complaint for partition and accounting but must be seasonably brought up in a direct action frontally addressing the issue. The controversy between the parties has been pending for much too long, and it is time that this matter draws to a close. The filiation of illegitimate children, like legitimate children, is established by (1) the record of birth appearing in the civil register or a final judgment; or (2) an admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence thereof, filiation shall be proved by (1) the open and continuous possession of the status of a legitimate child; or (2) any other means allowed by the Rules of Court and special laws.[4] The due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing is, in itself, a consummated act of acknowledgment of the child, and no further court action is required.[5] In fact, any authentic writing is treated not just a ground for compulsory recognition; it is in itself a voluntary recognition that does not require a separate action for judicial approval.[6] Where, instead, a claim for recognition is predicated on other evidence merely tending to prove paternity, i.e., outside of a record of birth, a will, a statement before a court of record or an authentic writing, judicial action within the applicable statute of limitations is essential in order to establish the childs acknowledgment.[7] A scrutiny of the records would show that petitioners were born during the marriage of their parents. The certificates of live birth would also identify Danilo de Jesus as being their father. There is perhaps no presumption of the law more firmly established and founded on sounder morality and more convincing reason than the presumption that children born in wedlock are legitimate.[8] This presumption indeed becomes conclusive in the absence of proof that there is physical impossibility of access between the spouses during the first 120 days of the 300 days which immediately precedes the birth of the child due to (a)

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the physical incapacity of the husband to have sexual intercourse with his wife; (b) the fact that the husband and wife are living separately in such a way that sexual intercourse is not possible; or (c) serious illness of the husband, which absolutely prevents sexual intercourse.[9] Quite remarkably, upon the expiration of the periods set forth in Article 170,[10] and in proper cases Article 171,[11] of the Family Code (which took effect on 03 August 1988), the action to impugn the legitimacy of a child would no longer be legally feasible and the status conferred by the presumption becomes fixed and unassailable.[12] Succinctly, in an attempt to establish their illegitimate filiation to the late Juan G. Dizon, petitioners, in effect, would impugn their legitimate status as being children of Danilo de Jesus and Carolina Aves de Jesus. This step cannot be aptly done because the law itself establishes the legitimacy of children conceived or born during the marriage of the parents. The presumption of legitimacy fixes a civil status for the child born in wedlock, and only the father,[13] or in exceptional instances the latters heirs,[14] can contest in an appropriate action the legitimacy of a child born to his wife. Thus, it is only when the legitimacy of a child has been successfully impugned that the paternity of the husband can be rejected. Respondents correctly argued that petitioners hardly could find succor in Divinagracia. In said case, the Supreme Court remanded to the trial court for further proceedings the action for partition filed by an illegitimate child who had claimed to be an acknowledged spurious child by virtue of a private document, signed by the acknowledging parent, evidencing such recognition. It was not a case of legitimate children asserting to be somebody elses illegitimate children. Petitioners totally ignored the fact that it was not for them, given the attendant circumstances particularly, to declare that they could not have been the legitimate children, clearly opposed to the entries in their respective birth certificates, of Danilo and Carolina de Jesus. The rule that the written acknowledgment made by the deceased Juan G. Dizon establishes petitioners alleged illegitimate filiation to the decedent cannot be validly invoked to be of any relevance in this instance. This issue, i.e., whether petitioners are indeed the acknowledged illegitimate offsprings of the decedent, cannot be aptly adjudicated without an action having been first been instituted to impugn their legitimacy as being the children of Danilo B. de Jesus and Carolina Aves de Jesus born in lawful wedlock. Jurisprudence is strongly settled that the paramount declaration of

legitimacy by law cannot be attacked collaterally,[15] one that can only be repudiated or contested in a direct suit specifically brought for that purpose.[16] Indeed, a child so born in such wedlock shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as having been an adulteress.[17] WHEREFORE, the foregoing disquisitions considered, the instant petition is DENIED. No costs. SO ORDERED. Melo, (Chairman), Panganiban, and Sandoval-Gutierrez, JJ., concur. SECOND DIVISION [G.R. No. 138961. March 7, 2002] WILLIAM LIYAO, JR., represented by his mother Corazon Garcia, petitioner, vs. JUANITA TANHOTI-LIYAO, PEARL MARGARET L. TAN, TITA ROSE L. TAN AND LINDA CHRISTINA LIYAO, respondents. DECISION DE LEON, JR., J.: Before us is a petition for review on certiorari assailing the decision dated June 4, 1999 of the Court of Appeals in CAG.R. C.V. No. 45394[1] which reversed the decision of the Regional Trial Court (RTC) of Pasig, Metro Manila, Branch 167 in declaring William Liyao, Jr. as the illegitimate (spurious) son of the deceased William Liyao and ordering Juanita TanhotiLiyao, Pearl Margaret L. Tan, Tita Rose L. Tan and Linda Christina Liyao to recognize and acknowledge William Liyao, Jr. as a compulsory heir of the deceased William Liyao and entitled to all successional rights as such and to pay the costs of the suit. On November 29,1976, William Liyao, Jr., represented by his mother Corazon G. Garcia, filed Civil Case No. 24943 before the RTC of Pasig, Branch 167 which is an action for compulsory recognition as the illegitimate (spurious) child of the late William Liyao against herein respondents, Juanita Tanhoti-Liyao, Pearl Margaret L. Tan, Tita Rose L. Tan and Linda Christina Liyao.[2]The complaint was later amended to include the allegation that petitioner was in continuous possession and enjoyment of the status of the child of said William Liyao, petitioner having been recognized and acknowledged as such child by the decedent during his lifetime."[3] The facts as alleged by petitioner are as follows:

Corazon G. Garcia is legally married to but living separately from Ramon M. Yulo for more than ten (10) years at the time of the institution of the said civil case. Corazon cohabited with the late William Liyao from 1965 up to the time of Williams untimely demise on December 2, 1975. They lived together in the company of Corazons two (2) children from her subsisting marriage, namely: Enrique and Bernadette, both surnamed Yulo, in a succession of rented houses in Quezon City and Manila. This was with the knowledge of William Liyaos legitimate children, Tita Rose L. Tan and Linda Christina Liyao-Ortiga, from his subsisting marriage with Juanita Tanhoti Liyao. Tita Rose and Christina were both employed at the Far East Realty Investment, Inc. of which Corazon and William were then vice president and president, respectively. Sometime in 1974, Corazon bought a lot from Ortigas and Co. which required the signature of her husband, Ramon Yulo, to show his consent to the aforesaid sale. She failed to secure his signature and, had never been in touch with him despite the necessity to meet him. Upon the advice of William Liyao, the sale of the parcel of land located at the Valle Verde Subdivision was registered under the name of Far East Realty Investment, Inc. On June 9, 1975, Corazon gave birth to William Liyao, Jr. at the Cardinal Santos Memorial Hospital. During her three (3) day stay at the hospital, William Liyao visited and stayed with her and the new born baby, William, Jr. (Billy). All the medical and hospital expenses, food and clothing were paid under the account of William Liyao. William Liyao even asked his confidential secretary, Mrs. Virginia Rodriguez, to secure a copy of Billys birth certificate. He likewise instructed Corazon to open a bank account for Billy with the Consolidated Bank and Trust Company[4] and gave weekly amounts to be deposited therein.[5] William Liyao would bring Billy to the office, introduce him as his good looking son and had their pictures taken together.[6] During the lifetime of William Liyao, several pictures were taken showing, among others, William Liyao and Corazon together with Billys godfather, Fr. Julian Ruiz, William Liyaos legal staff and their wives while on vacation in Baguio.[7] Corazon also presented pictures in court to prove that that she usually accompanied William Liyao while attending various social gatherings and other important meetings.[8] During the occasion of William Liyaos last birthday on November 22, 1975 held at the Republic Supermarket, William Liyao expressly acknowledged Billy as his son in the presence of Fr. Ruiz, Maurita Pasion and

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other friends and said, Hey, look I am still young, I can still make a good looking son."[9] Since birth, Billy had been in continuous possession and enjoyment of the status of a recognized and/or acknowledged child of William Liyao by the latters direct and overt acts. William Liyao supported Billy and paid for his food, clothing and other material needs. However, after William Liyaos death, it was Corazon who provided sole support to Billy and took care of his tuition fees at La Salle, Greenhills. William Liyao left his personal belongings, collections, clothing, old newspaper clippings and laminations at the house in White Plains where he shared his last moments with Corazon. Testifying for the petitioner, Maurita Pasion declared that she knew both Corazon G. Garcia and William Liyao who were godparents to her children. She used to visit Corazon and William Liyao from 1965-1975. The two children of Corazon from her marriage to Ramon Yulo, namely, Bernadette and Enrique (Ike), together with some housemaids lived with Corazon and William Liyao as one family. On some occasions like birthdays or some other celebrations, Maurita would sleep in the couples residence and cook for the family. During these occasions, she would usually see William Liyao in sleeping clothes. When Corazon, during the latter part of 1974, was pregnant with her child Billy, Maurita often visited her three (3) to four (4) times a week in Greenhills and later on in White Plains where she would often see William Liyao. Being a close friend of Corazon, she was at the Cardinal Santos Memorial Hospital during the birth of Billy. She continuously visited them at White Plains and knew that William Liyao, while living with her friend Corazon, gave support by way of grocery supplies, money for household expenses and matriculation fees for the two (2) older children, Bernadette and Enrique. During William Liyaos birthday on November 22, 1975 held at the Republic Supermarket Office, he was carrying Billy and told everybody present, including his two (2) daughters from his legal marriage, Look, this is my son, very guapo and healthy.[10] He then talked about his plan for the baptism of Billy before Christmas. He intended to make it engrande and make the bells of San Sebastian Church ring.[11] Unfortunately, this did not happen since William Liyao passed away on December 2, 1975. Maurita attended Mr. Liyaos funeral and helped Corazon pack his clothes. She even recognized a short sleeved shirt of blue and gray[12] which Mr. Liyao wore in a photograph[13] as well as another shirt of lime green[14] as belonging to the deceased. A note was also presented with the following inscriptions: To Cora, Love From William.[15] Maurita remembered having invited the couple during her mothers birthday where the

couple had their pictures taken while exhibiting affectionate poses with one another. Maurita knew that Corazon is still married to Ramon Yulo since her marriage has not been annulled nor is Corazon legally separated from her said husband. However, during the entire cohabitation of William Liyao with Corazon Garcia, Maurita had not seen Ramon Yulo or any other man in the house when she usually visited Corazon. Gloria Panopio testified that she is the owner of a beauty parlor and that she knew that Billy is the son of her neighbors, William Liyao and Corazon Garcia, the latter being one of her customers. Gloria met Mr. Liyao at Corazons house in Scout Delgado, Quezon City in the Christmas of 1965. Gloria had numerous occasions to see Mr. Liyao from 1966 to 1974 and even more so when the couple transferred to White Plains, Quezon City from 1974-1975. At the time Corazon was conceiving, Mr. Liyao was worried that Corazon might have another miscarriage so he insisted that she just stay in the house, play mahjong and not be bored. Gloria taught Corazon how to play mahjong and together with Atty. Brillantes wife and sister-in-law, had mahjong sessions among themselves. Gloria knew that Mr. Liyao provided Corazon with a rented house, paid the salary of the maids and food for Billy. He also gave Corazon financial support. Gloria knew that Corazon is married but is separated from Ramon Yulo although Gloria never had any occasion to see Mr. Yulo with Corazon in the house where Mr. Liyao and Corazon lived. Enrique Garcia Yulo testified that he had not heard from his father, Ramon Yulo, from the time that the latter abandoned and separated from his family. Enrique was about six (6) years old when William Liyao started to live with them up to the time of the latters death on December 2, 1975. Mr. Liyao was very supportive and fond of Enriques half brother, Billy. He identified several pictures showing Mr. Liyao carrying Billy at the house as well as in the office. Enriques testimony was corroborated by his sister, Bernadette Yulo, who testified that the various pictures showing Mr. Liyao carrying Billy could not have been superimposed and that the negatives were in the possession of her mother, Corazon Garcia. Respondents, on the other hand, painted a different picture of the story. Linda Christina Liyao-Ortiga stated that her parents, William Liyao and Juanita Tanhoti-Liyao, were legally married.[16] Linda grew up and lived with her parents at San Lorenzo Village, Makati, Metro Manila until she got married; that her parents were not separated legally or in fact and that there was no reason why any of her parents would institute legal

separation proceedings in court. Her father lived at their house in San Lorenzo Village and came home regularly. Even during out of town business trips or for conferences with the lawyers at the office, her father would change his clothes at home because of his personal hygiene and habits. Her father reportedly had trouble sleeping in other peoples homes. Linda described him as very conservative and a strict disciplinarian. He believed that no amount of success would compensate for failure of a home. As a businessman, he was very tough, strong, fought for what he believed in and did not give up easily. He suffered two strokes before the fatal attack which led to his death on December 2, 1975. He suffered a stroke at the office sometime in April-May 1974 and was attended by Dr. Santiago Co. He then stayed in the house for two (2) to three (3) months for his therapy and acupuncture treatment. He could not talk, move, walk, write or sign his name. In the meantime, Linda and her sister, Tita Rose Liyao-Tan, ran the office. She handled the collection of rents while her sister referred legal matters to their lawyers. William Liyao was bedridden and had personally changed. He was not active in business and had dietary restrictions. Mr. Liyao also suffered a milder stroke during the latter part of September to October 1974. He stayed home for two (2) to three (3) days and went back to work. He felt depressed, however, and was easily bored. He did not put in long hours in the office unlike before and tried to spend more time with his family. Linda testified that she knew Corazon Garcia is still married to Ramon Yulo. Corazon was not legally separated from her husband and the records from the Local Civil Registrar do not indicate that the couple obtained any annulment[17] of their marriage. Once in 1973, Linda chanced upon Ramon Yulo picking up Corazon Garcia at the company garage. Immediately after the death of Lindas father, Corazon went to Lindas office for the return of the formers alleged investments with the Far East Realty Investment, Inc. including a parcel of land sold by Ortigas and Company. Linda added that Corazon, while still a Vice-President of the company, was able to take out documents, clothes and several laminated pictures of William Liyao from the office. There was one instance when she was told by the guards, Mrs. Yulo is leaving and taking out things again.[18] Linda then instructed the guards to bring Mrs. Yulo to the office upstairs but her sister, Tita Rose, decided to let Corazon Garcia go. Linda did not recognize any article of clothing which belonged to her father after having been shown three (3) large suit cases full of mens clothes, underwear, sweaters, shorts and pajamas. Tita Rose Liyao-Tan testified that her parents were legally married and had never

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been separated. They resided at No. 21 Hernandez Street, San Lorenzo Village, Makati up to the time of her fathers death on December 2, 1975.[19] Her father suffered two (2) minor cardio-vascular arrests (CVA) prior to his death. During the first heart attack sometime between April and May 1974, his speech and hands were affected and he had to stay home for two (2) to three (3) months under strict medication, taking aldomet, serpadil and cifromet which were prescribed by Dr. Bonifacio Yap, for high blood pressure and cholesterol level control.[20] Tita Rose testified that after the death of Mr. Liyao, Corazon Garcia was paid the amount of One Hundred Thousand Pesos (P100,000.00) representing her investment in the Far East Realty Investment Inc. Tita Rose also stated that her family never received any formal demand that they recognize a certain William Liyao, Jr. as an illegitimate son of her father, William Liyao. After assuming the position of President of the company, Tita Rose did not come across any check signed by her late father representing payment to lessors as rentals for the house occupied by Corazon Garcia. Tita Rose added that the laminated photographs presented by Corazon Garcia are the personal collection of the deceased which were displayed at the latters office. The last witness who testified for the respondents was Ramon Pineda, driver and bodyguard of William Liyao from 1962 to 1974, who said that he usually reported for work at San Lorenzo Village, Makati to pick up his boss at 8:00 oclock in the morning. At past 7:00 oclock in the evening, either Carlos Palamigan or Serafin Villacillo took over as night shift driver. Sometime between April and May 1974, Mr. Liyao got sick. It was only after a month that he was able to report to the office. Thereafter, Mr. Liyao was not able to report to the office regularly. Sometime in September 1974, Mr. Liyao suffered from another heart attack. Mr. Pineda added that as a driver and bodyguard of Mr. Liyao, he ran errands for the latter among which was buying medicine for him like capasid and aldomet. On December 2, 1975, Mr. Pineda was called inside the office of Mr. Liyao. Mr. Pineda saw his employer leaning on the table. He tried to massage Mr. Liyaos breast and decided later to carry and bring him to the hospital but Mr. Liyao died upon arrival thereat. Mrs. Liyao and her daughter, Linda Liyao-Ortiga were the first to arrive at the hospital. Mr. Pineda also declared that he knew Corazon Garcia to be one of the employees of the Republic Supermarket. People in the office knew that she was married. Her husband, Ramon Yulo, would sometimes go to the office. One time, in 1974, Mr. Pineda saw Ramon Yulo at the office garage as if to fetch Corazon Garcia.

Mr. Yulo who was also asking about cars for sale, represented himself as car dealer. Witness Pineda declared that he did not know anything about the claim of Corazon. He freely relayed the information that he saw Mr. Yulo in the garage of Republic Supermarket once in 1973 and then in 1974 to Atty. Quisumbing when he went to the latters law office. Being the driver of Mr. Liyao for a number of years, Pineda said that he remembered having driven the group of Mr. Liyao, Atty. Astraquillo, Atty. Brillantes, Atty. Magno and Atty. Laguio to Baguio for a vacation together with the lawyers wives. During his employment, as driver of Mr. Liyao, he does not remember driving for Corazon Garcia on a trip to Baguio or for activities like shopping. On August 31, 1993, the trial court rendered a decision, the dispositive portion of which reads as follows: WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants as follows: (a) Confirming the appointment of Corazon G. Garcia as the guardian ad litem of the minor William Liyao, Jr.; (b) Declaring the minor William Liyao, Jr. as the illegitimate (spurious) son of the deceased William Liyao; (c) Ordering the defendants Juanita Tanhoti Liyao, Pearl Margaret L. Tan, Tita Rose L. Tan and Christian Liyao, to recognize, and acknowledge the minor William Liyao, Jr. as a compulsory heir of the deceased William Liyao, entitled to all succesional rights as such; and (d) Costs of suit.[21] In ruling for herein petitioner, the trial court said it was convinced by preponderance of evidence that the deceased William Liyao sired William Liyao, Jr. since the latter was conceived at the time when Corazon Garcia cohabited with the deceased. The trial court observed that herein petitioner had been in continuous possession and enjoyment of the status of a child of the deceased by direct and overt acts of the latter such as securing the birth certificate of petitioner through his

confidential secretary, Mrs. Virginia Rodriguez; openly and publicly acknowledging petitioner as his son; providing sustenance and even introducing herein petitioner to his legitimate children. The Court of Appeals, however, reversed the ruling of the trial court saying that the law favors the legitimacy rather than the illegitimacy of the child and the presumption of legitimacy is thwarted only on ethnic ground and by proof that marital intimacy between husband and wife was physically impossible at the period cited in Article 257 in relation to Article 255 of the Civil Code. The appellate court gave weight to the testimonies of some witnesses for the respondents that Corazon Garcia and Ramon Yulo who were still legally married and have not secured legal separation, were seen in each others company during the supposed time that Corazon cohabited with the deceased William Liyao. The appellate court further noted that the birth certificate and the baptismal certificate of William Liyao, Jr. which were presented by petitioner are not sufficient to establish proof of paternity in the absence of any evidence that the deceased, William Liyao, had a hand in the preparation of said certificates and considering that his signature does not appear thereon. The Court of Appeals stated that neither do family pictures constitute competent proof of filiation. With regard to the passbook which was presented as evidence for petitioner, the appellate court observed that there was nothing in it to prove that the same was opened by William Liyao for either petitioner or Corazon Garcia since William Liyaos signature and name do not appear thereon. His motion for reconsideration having been denied, petitioner filed the present petition. It must be stated at the outset that both petitioner and respondents have raised a number of issues which relate solely to the sufficiency of evidence presented by petitioner to establish his claim of filiation with the late William Liyao. Unfortunately, both parties have consistently overlooked the real crux of this litigation: May petitioner impugn his own legitimacy to be able to claim from the estate of his supposed father, William Liyao? We deny the present petition. Under the New Civil Code, a child born and conceived during a valid marriage is presumed to be legitimate.[22] The presumption of legitimacy of children does not only flow out from a declaration contained in the statute but is based on the broad principles of natural justice and the supposed virtue of the mother. The presumption is grounded in a policy to

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protect innocent offspring from the odium of illegitimacy.[23] The presumption of legitimacy of the child, however, is not conclusive and consequently, may be overthrown by evidence to the contrary. Hence, Article 255 of the New Civil Code[24] provides: Article 255. Children born after one hundred and eighty days following the celebration of the marriage, and before three hundred days following its dissolution or the separation of the spouses shall be presumed to be legitimate. Against this presumption no evidence shall be admitted other than that of the physical impossibility of the husband having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of the child. This physical impossibility may be caused: 1) By the impotence of the husband; 2) By the fact that husband and wife were living separately in such a way that access was not possible; 3) By the serious illness of the husband. Petitioner insists that his mother, Corazon Garcia, had been living separately for ten (10) years from her husband, Ramon Yulo, at the time that she cohabited with the late William Liyao and it was physically impossible for her to have sexual relations with Ramon Yulo when petitioner was conceived and born. To bolster his claim, petitioner presented a document entitled, Contract of Separation,[25] executed and signed by Ramon Yulo indicating a waiver of rights to any and all claims on any property that Corazon Garcia might acquire in the future.[26] The fact that Corazon Garcia had been living separately from her husband, Ramon Yulo, at the time petitioner was conceived and born is of no moment. While physical impossibility for the husband to have sexual intercourse with his wife is one of the grounds for impugning the legitimacy of the child, it bears emphasis that the grounds for impugning the legitimacy of the child mentioned in Article 255 of the Civil Code may only be invoked by the husband, or in proper cases, his heirs under the conditions set forth under Article 262 of the Civil Code.[27] Impugning the legitimacy of the child is a strictly personal right of the husband, or in exceptional cases, his heirs for the simple reason that he is the one directly confronted with the scandal and

ridicule which the infidelity of his wife produces and he should be the one to decide whether to conceal that infidelity or expose it in view of the moral and economic interest involved.[28] It is only in exceptional cases that his heirs are allowed to contest such legitimacy. Outside of these cases, none - even his heirs - can impugn legitimacy; that would amount o an insult to his memory.[29] It is therefor clear that the present petition initiated by Corazon G. Garcia as guardian ad litem of the then minor, herein petitioner, to compel recognition by respondents of petitioner William Liyao, Jr, as the illegitimate son of the late William Liyao cannot prosper. It is settled that a child born within a valid marriage is presumed legitimate even though the mother may have declared against its legitimacy or may have been sentenced as an adulteress.[30] We cannot allow petitioner to maintain his present petition and subvert the clear mandate of the law that only the husband, or in exceptional circumstances, his heirs, could impugn the legitimacy of a child born in a valid and subsisting marriage. The child himself cannot choose his own filiation. If the husband, presumed to be the father does not impugn the legitimacy of the child, then the status of the child is fixed, and the latter cannot choose to be the child of his mothers alleged paramour. On the other hand, if the presumption of legitimacy is overthrown, the child cannot elect the paternity of the husband who successfully defeated the presumption.[31] Do the acts of Enrique and Bernadette Yulo, the undisputed children of Corazon Garcia with Ramon Yulo, in testifying for herein petitioner amount to impugnation of the legitimacy of the latter? We think not. As earlier stated, it is only in exceptional cases that the heirs of the husband are allowed to contest the legitimacy of the child. There is nothing on the records to indicate that Ramon Yulo has already passed away at the time of the birth of the petitioner nor at the time of the initiation of this proceedings. Notably, the case at bar was initiated by petitioner himself through his mother, Corazon Garcia, and not through Enrique and Bernadette Yulo. It is settled that the legitimacy of the child can be impugned only in a direct action brought for that purpose, by the proper parties and within the period limited by law. Considering the foregoing, we find no reason to discuss the sufficiency of the evidence presented by both parties on the petitioners claim of alleged filiation with the late William Liyao. In any event, there is no clear, competent and positive evidence presented by the petitioner that his alleged

father had admitted or recognized his paternity. WHEREFORE, the instant petition is DENIED. The assailed decision of the Court of Appeals in CA-G.R. CV No. 45394 is hereby AFFIRMED. No costs. SO ORDERED. Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.

THIRD DIVISION [G.R. No. 123450. August 31, 2005] GERARDO B. CONCEPCION, petitioner, vs. COURT OF APPEALS and MA. THERESA ALMONTE, respondents. DECISION CORONA, J.: The child, by reason of his mental and physical immaturity, needs special safeguard and care, including appropriate legal protection before as well as after birth.[1] In case of assault on his rights by those who take advantage of his innocence and vulnerability, the law will rise in his defense with the single-minded purpose of upholding only his best interests. This is the story of petitioner Gerardo B. Concepcion and private respondent Ma. Theresa Almonte, and a child named Jose Gerardo. Gerardo and Ma. Theresa were married on December 29, 1989.[2] After their marriage, they lived with Ma. Theresas parents in Fairview, Quezon City.[3] Almost a year later, on December 8, 1990, Ma. Theresa gave birth to Jose Gerardo.[4] Gerardo and Ma. Theresas relationship turned out to be short-lived, however. On December 19, 1991, Gerardo filed a petition to have his marriage to Ma. Theresa annulled on the ground of bigamy.[5] He alleged that nine years before he married Ma. Theresa on December 10, 1980, she had married one Mario Gopiao, which marriage was never annulled.[6] Gerardo also found out that Mario was still alive and was residing in Loyola Heights, Quezon City.[7] Ma. Theresa did not deny marrying Mario when she was twenty years old. She, however, averred that the marriage was a sham and that she never lived with Mario at all.[8] The trial court ruled that Ma. Theresas marriage to Mario was valid and subsisting when she married Gerardo and annulled her marriage to the latter for being bigamous. It declared Jose Gerardo to

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be an illegitimate child as a result. The custody of the child was awarded to Ma. Theresa while Gerardo was granted visitation rights.[9] Ma. Theresa felt betrayed and humiliated when Gerardo had their marriage annulled. She held him responsible for the bastardization of Gerardo. She moved for the reconsideration of the above decision INSOFAR ONLY as that portion of the decision which grant(ed) to the petitioner so-called visitation rights between the hours of 8 in the morning to 12:00 p.m. of any Sunday.[10] She argued that there was nothing in the law granting visitation rights in favor of the putative father of an illegitimate child.[11] She further maintained that Jose Gerardos surname should be changed from Concepcion to Almonte, her maiden name, following the rule that an illegitimate child shall use the mothers surname. Gerardo opposed the motion. He insisted on his visitation rights and the retention of Concepcion as Jose Gerardos surname. Applying the best interest of the child principle, the trial court denied Ma. Theresas motion and made the following observations: It is a pity that the parties herein seem to be using their son to get at or to hurt the other, something they should never do if they want to assure the normal development and well-being of the boy. The Court allowed visitorial rights to the father knowing that the minor needs a father, especially as he is a boy, who must have a father figure to recognize something that the mother alone cannot give. Moreover, the Court believes that the emotional and psychological well-being of the boy would be better served if he were allowed to maintain relationships with his father. There being no law which compels the Court to act one way or the other on this matter, the Court invokes the provision of Art. 8, PD 603 as amended, otherwise known as the Child and Youth Welfare Code, to wit: In all questions regarding the care, custody, education and property of the child, his welfare shall be the paramount consideration. WHEREFORE, the respondents Motion for Reconsideration has to be, as it is hereby DENIED.[12]

Ma. Theresa elevated the case to the Court of Appeals, assigning as error the ruling of the trial court granting visitation rights to Gerardo. She likewise opposed the continued use of Gerardos surname (Concepcion) despite the fact that Jose Gerardo had already been declared illegitimate and should therefore use her surname (Almonte). The appellate court denied the petition and affirmed in toto the decision of the trial court.[13] On the issue raised by Ma. Theresa that there was nothing in the law that granted a putative father visitation rights over his illegitimate child, the appellate court affirmed the best interest of the child policy invoked by the court a quo. It ruled that *a+t bottom, it (was) the childs welfare and not the convenience of the parents which (was) the primary consideration in granting visitation rights a few hours once a week.[14] The appellate court likewise held that an illegitimate child cannot use the mothers surname motu proprio. The child, represented by the mother, should file a separate proceeding for a change of name under Rule 103 of the Rules of Court to effect the correction in the civil registry.[15] Undaunted, Ma. Theresa moved for the reconsideration of the adverse decision of the appellate court. She also filed a motion to set the case for oral arguments so that she could better ventilate the issues involved in the controversy. After hearing the oral arguments of the respective counsels of the parties, the appellate court resolved the motion for reconsideration. It reversed its earlier ruling and held that Jose Gerardo was not the son of Ma. Theresa by Gerardo but by Mario during her first marriage: It is, therefore, undeniable established by the evidence in this case that the appellant [Ma. Theresa] was married to Mario Gopiao, and that she had never entered into a lawful marriage with the appellee [Gerardo] since the so-called marriage with the latter was void ab initio. It was [Gerardo] himself who had established these facts. In other words, [Ma. Theresa] was legitimately married to Mario Gopiao when the child Jose Gerardo was born on December 8, 1990. Therefore, the child Jose Gerardo under the law is the legitimate child of the legal and subsisting marriage between [Ma. Theresa] and Mario Gopiao; he cannot be deemed to be the illegitimate child of the void and non-existent marriage between *Ma. Theresa] and [Gerardo], but is said by the law to be the child of the legitimate and existing marriage between [Ma. Theresa] and Mario Gopiao (Art. 164, Family Code). Consequently, [she] is right in firmly saying that [Gerardo] can claim neither custody

nor visitorial rights over the child Jose Gerardo. Further, [Gerardo] cannot impose his name upon the child. Not only is it without legal basis (even supposing the child to be his illegitimate child [Art. 146, The Family Code]); it would tend to destroy the existing marriage between [Ma. Theresa] and Gopiao, would prevent any possible rapproachment between the married couple, and would mean a judicial seal upon an illegitimate relationship.[16] The appellate court brushed aside the common admission of Gerardo and Ma. Theresa that Jose Gerardo was their son. It gave little weight to Jose Gerardos birth certificate showing that he was born a little less than a year after Gerardo and Ma. Theresa were married: We are not unaware of the movants argument that various evidence exist that appellee and the appellant have judicially admitted that the minor is their natural child. But, in the same vein, We cannot overlook the fact that Article 167 of the Family Code mandates: The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. (underscoring ours) Thus, implicit from the above provision is the fact that a minor cannot be deprived of his/her legitimate status on the bare declaration of the mother and/or even much less, the supposed father. In fine, the law and only the law determines who are the legitimate or illegitimate children for ones legitimacy or illegitimacy cannot ever be compromised. Not even the birth certificate of the minor can change his status for the information contained therein are merely supplied by the mother and/or the supposed father. It should be what the law says and not what a parent says it is.[17] (Emphasis supplied) Shocked and stunned, Gerardo moved for a reconsideration of the above decision but the same was denied.[18] Hence, this appeal. The status and filiation of a child cannot be compromised.[19] Article 164 of the Family Code is clear. A child who is conceived or born during the marriage of his parents is legitimate.[20] As a guaranty in favor of the child[21] and to protect his status of legitimacy, Article 167 of the Family Code provides: Article 167. The child shall be considered legitimate although the mother may have

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declared against its legitimacy or may have been sentenced as an adulteress. The law requires that every reasonable presumption be made in favor of legitimacy.[22] We explained the rationale of this rule in the recent case of Cabatania v. Court of Appeals[23]: The presumption of legitimacy does not only flow out of a declaration in the statute but is based on the broad principles of natural justice and the supposed virtue of the mother. It is grounded on the policy to protect the innocent offspring from the odium of illegitimacy. Gerardo invokes Article 166 (1)(b)[24] of the Family Code. He cannot. He has no standing in law to dispute the status of Jose Gerardo. Only Ma. Theresas husband Mario or, in a proper case,[25] his heirs, who can contest the legitimacy of the child Jose Gerardo born to his wife.[26] Impugning the legitimacy of a child is a strictly personal right of the husband or, in exceptional cases, his heirs.[27] Since the marriage of Gerardo and Ma. Theresa was void from the very beginning, he never became her husband and thus never acquired any right to impugn the legitimacy of her child. The presumption of legitimacy proceeds from the sexual union in marriage, particularly during the period of conception.[28] To overthrow this presumption on the basis of Article 166 (1)(b) of the Family Code, it must be shown beyond reasonable doubt that there was no access that could have enabled the husband to father the child.[29] Sexual intercourse is to be presumed where personal access is not disproved, unless such presumption is rebutted by evidence to the contrary.[30] The presumption is quasi-conclusive and may be refuted only by the evidence of physical impossibility of coitus between husband and wife within the first 120 days of the 300 days which immediately preceded the birth of the child.[31] To rebut the presumption, the separation between the spouses must be such as to make marital intimacy impossible.[32] This may take place, for instance, when they reside in different countries or provinces and they were never together during the period of conception.[33] Or, the husband was in prison during the period of conception, unless it appears that sexual union took place through the violation of prison regulations.[34] Here, during the period that Gerardo and Ma. Theresa were living together in Fairview, Quezon City, Mario was living in Loyola Heights which is also in Quezon City.

Fairview and Loyola Heights are only a scant four kilometers apart. Not only did both Ma. Theresa and Mario reside in the same city but also that no evidence at all was presented to disprove personal access between them. Considering these circumstances, the separation between Ma. Theresa and her lawful husband, Mario, was certainly not such as to make it physically impossible for them to engage in the marital act. Sexual union between spouses is assumed. Evidence sufficient to defeat the assumption should be presented by him who asserts the contrary. There is no such evidence here. Thus, the presumption of legitimacy in favor of Jose Gerardo, as the issue of the marriage between Ma. Theresa and Mario, stands. Gerardo relies on Ma. Theresas statement in her answer[35] to the petition for annulment of marriage[36] that she never lived with Mario. He claims this was an admission that there was never any sexual relation between her and Mario, an admission that was binding on her. Gerardos argument is without merit. First, the import of Ma. Theresas statement is that Jose Gerardo is not her legitimate son with Mario but her illegitimate son with Gerardo. This declaration an avowal by the mother that her child is illegitimate is the very declaration that is proscribed by Article 167 of the Family Code. The language of the law is unmistakable. An assertion by the mother against the legitimacy of her child cannot affect the legitimacy of a child born or conceived within a valid marriage. Second, even assuming the truth of her statement, it does not mean that there was never an instance where Ma. Theresa could have been together with Mario or that there occurred absolutely no intercourse between them. All she said was that she never lived with Mario. She never claimed that nothing ever happened between them. Telling is the fact that both of them were living in Quezon City during the time material to Jose Gerardos conception and birth. Far from foreclosing the possibility of marital intimacy, their proximity to each other only serves to reinforce such possibility. Thus, the impossibility of physical access was never established beyond reasonable doubt. Third, to give credence to Ma. Theresas statement is to allow her to arrogate unto herself a right exclusively lodged in the husband, or in a proper case, his heirs.[37] A mother has no right to

disavow a child because maternity is never uncertain.[38] Hence, Ma. Theresa is not permitted by law to question Jose Gerardos legitimacy. Finally, for reasons of public decency and morality, a married woman cannot say that she had no intercourse with her husband and that her offspring is illegitimate.[39] The proscription is in consonance with the presumption in favor of family solidarity. It also promotes the intention of the law to lean toward the legitimacy of children.[40] Gerardos insistence that the filiation of Jose Gerardo was never an issue both in the trial court and in the appellate court does not hold water. The fact that both Ma. Theresa and Gerardo admitted and agreed that Jose Gerardo was born to them was immaterial. That was, in effect, an agreement that the child was illegitimate. If the Court were to validate that stipulation, then it would be tantamount to allowing the mother to make a declaration against the legitimacy of her child and consenting to the denial of filiation of the child by persons other than her husband. These are the very acts from which the law seeks to shield the child. Public policy demands that there be no compromise on the status and filiation of a child.[41] Otherwise, the child will be at the mercy of those who may be so minded to exploit his defenselessness. The reliance of Gerardo on Jose Gerardos birth certificate is misplaced. It has no evidentiary value in this case because it was not offered in evidence before the trial court. The rule is that the court shall not consider any evidence which has not been formally offered.[42] Moreover, the law itself establishes the status of a child from the moment of his [43] birth. Although a record of birth or birth certificate may be used as primary evidence of the filiation of a child,[44] as the status of a child is determined by the law itself, proof of filiation is necessary only when the legitimacy of the child is being questioned, or when the status of a child born after 300 days following the termination of marriage is sought to be established.[45] Here, the status of Jose Gerardo as a legitimate child was not under attack as it could not be contested collaterally and, even then, only by the husband or, in extraordinary cases, his heirs. Hence, the presentation of proof of legitimacy in this case was improper and uncalled for. In addition, a record of birth is merely prima facie evidence of the facts contained therein.[46] As prima facie evidence, the statements in the record of birth may be rebutted by more preponderant evidence. It is not conclusive

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evidence with respect to the truthfulness of the statements made therein by the interested parties.[47] Between the certificate of birth which is prima facieevidence of Jose Gerardos illegitimacy and the quasi-conclusive presumption of law (rebuttable only by proof beyond reasonable doubt) of his legitimacy, the latter shall prevail. Not only does it bear more weight, it is also more conducive to the best interests of the child and in consonance with the purpose of the law. It perplexes us why both Gerardo and Ma. Theresa would doggedly press for Jose Gerardos illegitimacy while claiming that they both had the childs interests at heart. The law, reason and common sense dictate that a legitimate status is more favorable to the child. In the eyes of the law, the legitimate child enjoys a preferred and superior status. He is entitled to bear the surnames of both his father and mother, full support and full inheritance.[48] On the other hand, an illegitimate child is bound to use the surname and be under the parental authority only of his mother. He can claim support only from a more limited group and his legitime is only half of that of his legitimate counterpart.[49] Moreover (without unwittingly exacerbating the discrimination against him), in the eyes of society, a bastard is usually regarded as bearing a stigma or mark of dishonor. Needless to state, the legitimacy presumptively vested by law upon Jose Gerardo favors his interest. It is unfortunate that Jose Gerardo was used as a pawn in the bitter squabble between the very persons who were passionately declaring their concern for him. The paradox was that he was made to suffer supposedly for his own sake. This madness should end. This case has been pending for a very long time already. What is specially tragic is that an innocent child is involved. Jose Gerardo was barely a year old when these proceedings began. He is now almost fifteen and all this time he has been a victim of incessant bickering. The law now comes to his aid to write finis to the controversy which has unfairly hounded him since his infancy. Having only his best interests in mind, we uphold the presumption of his legitimacy. As a legitimate child, Jose Gerardo shall have the right to bear the surnames of his father Mario and mother Ma. Theresa, in conformity with the provisions of the Civil Code on surnames.[50] A persons surname or family name identifies the family to which he belongs and is passed on from parent to child.[51] Hence, Gerardo cannot impose his surname on Jose Gerardo who

is, in the eyes of the law, not related to him in any way. The matter of changing Jose Gerardos name and effecting the corrections of the entries in the civil register regarding his paternity and filiation should be threshed out in a separate proceeding. In case of annulment or declaration of absolute nullity of marriage, Article 49 of the Family Code grants visitation rights to a parent who is deprived of custody of his children. Such visitation rights flow from the natural right of both parent and child to each others company. There being no such parent-child relationship between them, Gerardo has no legally demandable right to visit Jose Gerardo. Our laws seek to promote the welfare of the child. Article 8 of PD 603, otherwise known as the Child and Youth Welfare Code, is clear and unequivocal: Article 8. Childs Welfare Paramount. In all questions regarding the care, custody, education and property of the child, his welfare shall be the paramount consideration. Article 3 (1) of the United Nations Convention on the Rights of a Child of which the Philippines is a signatory is similarly emphatic: Article 3 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. The State as parens patriae affords special protection to children from abuse, exploitation and other conditions prejudicial to their development. It is mandated to provide protection to those of tender years.[52] Through its laws, the State safeguards them from every one, even their own parents, to the end that their eventual development as responsible citizens and members of society shall not be impeded, distracted or impaired by family acrimony. This is especially significant where, as in this case, the issue concerns their filiation as it strikes at their very identity and lineage. WHEREFORE, the petition is hereby DENIED. The September 14, 1995 and January 10, 1996 resolutions of the Court of

Appeals in CA-G.R. CV No. 40651 are hereby AFFIRMED. Costs against petitioner. SO ORDERED. Panganiban, (Chairman), SandovalGutierrez, and Garcia, JJ., concur. CarpioMorales, J., no part. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 171713 December 17, 2007

ESTATE OF ROGELIO G. ONG, petitioner, vs. Minor JOANNE RODJIN DIAZ, Represented by Her Mother and Guardian, Jinky C. Diaz, respondent. DECISION CHICO-NAZARIO, J.: This is a petition for Review on Certiorari under Rule 45 of the Revised Rules of Civil Procedure assailing (1) the Decision1 of the Court of Appeals dated 23 November 2005 and (2) the Resolution2 of the same court dated 1 March 2006 denying petitioners Motion for Reconsideration in CA-G.R. CV No. 70125. A Complaint3 for compulsory recognition with prayer for support pending litigation was filed by minor Joanne Rodjin Diaz (Joanne), represented by her mother and guardian, Jinky C. Diaz (Jinky), against Rogelio G. Ong (Rogelio) before the Regional Trial Court (RTC) of Tarlac City. In her Complaint, Jinky prayed that judgment be rendered: (a) Ordering defendant to recognize plaintiff Joanne Rodjin Diaz as his daughter. (b) Ordering defendant to give plaintiff monthly support of P20,000.00 pendente lite and thereafter to fix monthly support. (c) Ordering the defendant to pay plaintiff attorneys fees in the sum of P100,000.00. (d) Granting plaintiff such other measure of relief as maybe just and equitable in the premises.4

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As alleged by Jinky in her Complaint in November 1993 in Tarlac City, she and Rogelio got acquainted. This developed into friendship and later blossomed into love. At this time, Jinky was already married to a Japanese national, Hasegawa Katsuo, in a civil wedding solemnized on 19 February 1993 by Municipal Trial Court Judge Panfilo V. Valdez.5 From January 1994 to September 1998, Jinky and Rogelio cohabited and lived together at Fairlane Subdivision, and later at Capitol Garden, Tarlac City. From this live-in relationship, minor Joanne Rodjin Diaz was conceived and on 25 February 1998 was born at the Central Luzon Doctors Hospital, Tarlac City. Rogelio brought Jinky to the hospital and took minor Joanne and Jinky home after delivery. Rogelio paid all the hospital bills and the baptismal expenses and provided for all of minor Joannes needs recognizing the child as his. In September 1998, Rogelio abandoned minor Joanne and Jinky, and stopped supporting minor Joanne, falsely alleging that he is not the father of the child. Rogelio, despite Jinkys remonstrance, failed and refused and continued failing and refusing to give support for the child and to acknowledge her as his daughter, thus leading to the filing of the heretofore adverted complaint. After summons had been duly served upon Rogelio, the latter failed to file any responsive pleading despite repeated motions for extension, prompting the trial court to declare him in default in its Order dated 7 April 1999. Rogelios Answer with Counterclaim and Special and Affirmative Defenses was received by the trial court only on 15 April 1999. Jinky was allowed to present her evidence ex parte on the basis of which the trial court on 23 April 1999 rendered a decision granting the reliefs prayed for in the complaint. In its Decision6 dated 23 April 1999, the RTC held: WHEREFORE, judgment is hereby rendered: 1. Ordering defendant to recognize plaintiff as his natural child; 2. Ordering defendant to provide plaintiff with a monthly support of P10,000.00 and further

3. Ordering defendant to pay reasonable attorneys fees in the amount of P5,000.00 and the cost of the suit. On 28 April 1999, Rogelio filed a motion to lift the order of default and a motion for reconsideration seeking the courts understanding, as he was then in a quandary on what to do to find a solution to a very difficult problem of his life.7 On 29 April 1999, Rogelio filed a motion for new trial with prayer that the decision of the trial court dated 23 April 1999 be vacated and the case be considered for trial de novo pursuant to the provisions of Section 6, Rule 37 of the 1997 Rules of Civil Procedure.8 On 16 June 1999, the RTC issued an Order granting Rogelios Motion for New Trial: WHEREFORE, finding defendants motion for new trial to be impressed with merit, the same is hereby granted. The Order of this court declaring defendant in default and the decision is this court dated April 23, 1999 are hereby set aside but the evidence adduced shall remain in record, subject to cross-examination by defendant at the appropriate stage of the proceedings. In the meantime defendants answer is hereby admitted, subject to the right of plaintiff to file a reply and/or answer to defendants counterclaim within the period fixed by the Rules of Court. Acting on plaintiffs application for support pendente lite which this court finds to be warranted, defendant is hereby ordered to pay to plaintiff immediately the sum of P2,000.00 a month from January 15, 1999 to May 1999 as support pendente lite in arrears and the amount of P4,000.00 every month thereafter as regular support pendente lite during the pendency of this case.9 The RTC finally held: The only issue to be resolved is whether or not the defendant is the father of the plaintiff Joanne Rodjin Diaz.

Since it was duly established that plaintiffs mother Jinky Diaz was married at the time of the birth of Joanne Rodjin Diaz, the law presumes that Joanne is a legitimate child of the spouses Hasegawa Katsuo and Jinky Diaz (Article 164, Family Code). The child is still presumed legitimate even if the mother may have declared against her legitimacy (Article 167, Ibid). The legitimacy of a child may be impugned only on the following grounds provided for in Article 166 of the same Code. Paragraph 1 of the said Article provides that there must be physical impossibility for the husband to have sexual intercourse with the wife within the first 120 days of the 300 days following the birth of the child because of a) physical incapacity of the husband to have sexual intercourse with his wife; b) husband and wife were living separately in such a way that sexual intercourse was not possible; c) serious illness of the husband which prevented sexual intercourse. It was established by evidence that the husband is a Japanese national and that he was living outside of the country (TSN, Aug. 27, 1999, page 5) and he comes home only once a year. Both evidence of the parties proved that the husband was outside the country and no evidence was shown that he ever arrived in the country in the year 1997 preceding the birth of plaintiff Joanne Rodjin Diaz. While it may also be argued that plaintiff Jinky had a relationship with another man before she met the defendant, there is no evidence that she also had sexual relations with other men on or about the conception of Joanne Rodjin. Joanne Rodjin was her second child (see Exh. "A"), so her first child, a certain

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Nicole (according to defendant) must have a different father or may be the son of Hasegawa K[u]tsuo. The defendant admitted having been the one who shouldered the hospital bills representing the expenses in connection with the birth of plaintiff. It is an evidence of admission that he is the real father of plaintiff. Defendant also admitted that even when he stopped going out with Jinky, he and Jinky used to go to motels even after 1996. Defendant also admitted that on some instances, he still used to see Jinky after the birth of Joanne Rodjin. Defendant was even the one who fetched Jinky after she gave birth to Joanne. On the strength of this evidence, the Court finds that Joanne Rodjin is the child of Jinky and defendant Rogelio Ong and it is but just that the latter should support plaintiff.10 On 15 December 2000, the RTC rendered a decision and disposed: WHEREFORE, judgment is hereby rendered declaring Joanne Rodjin Diaz to be the illegitimate child of defendant Rogelio Ong with plaintiff Jinky Diaz. The Order of this Court awarding support pendente lite dated June 15, 1999, is hereby affirmed and that the support should continue until Joanne Rodjin Diaz shall have reached majority age.11 Rogelio filed a Motion for Reconsideration, which was denied for lack of merit in an Order of the trial court dated 19 January 2001.12 From the denial of his Motion for Reconsideration, Rogelio appealed to the Court of Appeals. After all the responsive pleadings had been filed, the case was submitted for decision and ordered reraffled to another Justice for study and report as early as 12 July 2002.13 During the pendency of the case with the Court of Appeals, Rogelios counsel filed a manifestation informing the Court that Rogelio died on 21 February 2005; hence, a Notice of Substitution was filed by said counsel praying that Rogelio be substituted in the case by the Estate of Rogelio Ong,14 which motion was accordingly granted by the Court of Appeals.15

In a Decision dated 23 November 2005, the Court of Appeals held: WHEREFORE, premises considered, the present appeal is hereby GRANTED. The appealed Decision dated December 15, 2000 of the Regional Trial Court of Tarlac, Tarlac, Branch 63 in Civil Case No. 8799 is hereby SET ASIDE. The case is hereby REMANDED to the court a quo for the issuance of an order directing the parties to make arrangements for DNA analysis for the purpose of determining the paternity of plaintiff minor Joanne Rodjin Diaz, upon consultation and in coordination with laboratories and experts on the field of DNA analysis. No pronouncement as to costs.16 Petitioner filed a Motion for Reconsideration which was denied by the Court of Appeals in a Resolution dated 1 March 2006. In disposing as it did, the Court of Appeals justified its Decision as follows: In this case, records showed that the late defendant-appellant Rogelio G. Ong, in the early stage of the proceedings volunteered and suggested that he and plaintiffs mother submit themselves to a DNA or blood testing to settle the issue of paternity, as a sign of good faith. However, the trial court did not consider resorting to this modern scientific procedure notwithstanding the repeated denials of defendant that he is the biological father of the plaintiff even as he admitted having actual sexual relations with plaintiffs mother. We believe that DNA paternity testing, as current jurisprudence affirms, would be the most reliable and effective method of settling the present paternity dispute. Considering, however, the untimely demise of defendant-appellant during the pendency of this appeal, the trial court, in consultation with out laboratories and experts on the field of DNA analysis, can possibly avail of such procedure with whatever remaining DNA samples from the deceased defendant alleged to be the putative father of plaintiff minor whose illegitimate filiations is

the subject of this action for support.17 Hence, this petition which raises the following issues for resolution: I WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT DID NOT DISMISS RESPONDENTS COMPLAINT FOR COMPULSORY RECOGNITION DESPITE ITS FINDING THAT THE EVIDENCE PRESENTED FAILED TO PROVE THAT ROGELIO G. ONG WAS HER FATHER. II WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT DID NOT DECLARE RESPONDENT AS THE LEGITIMATE CHILD OF JINKY C. DIAZ AND HER JAPANESE HUSBAND, CONSIDERING THAT RESPONDENT FAILED TO REBUT THE PRESUMPTION OF HER LEGITIMACY. III WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT REMANDED THE CASE TO THE COURT A QUO FOR DNA ANALYSIS DESPITE THE FACT THAT IT IS NO LONGER FEASIBLE DUE TO THE DEATH OF ROGELIO G. ONG.18 Petitioner prays that the present petition be given due course and the Decision of the Court of Appeals dated November 23, 2005 be modified, by setting aside the judgment remanding the case to the trial court for DNA testing analysis, by dismissing the complaint of minor Joanne for compulsory recognition, and by declaring the minor as the legitimate child of Jinky and Hasegawa Katsuo.19 From among the issues presented for our disposition, this Court finds it prudent to concentrate its attention on the third one, the propriety of the appellate courts decision remanding the case to the trial court for the conduct of DNA testing. Considering that a definitive result of the DNA testing will decisively lay to rest the issue of the filiation of minor Joanne, we see no reason to resolve the first two issues raised by the petitioner as they will be rendered moot by the result of the DNA testing.

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As a whole, the present petition calls for the determination of filiation of minor Joanne for purposes of support in favor of the said minor. Filiation proceedings are usually filed not just to adjudicate paternity but also to secure a legal right associated with paternity, such as citizenship, support (as in the present case), or inheritance. The burden of proving paternity is on the person who alleges that the putative father is the biological father of the child. There are four significant procedural aspects of a traditional paternity action which parties have to face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance between the putative father and child.20 A child born to a husband and wife during a valid marriage is presumed legitimate.21 As a guaranty in favor of the child and to protect his status of legitimacy, Article 167 of the Family Code provides: Article 167. The children shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. The law requires that every reasonable presumption be made in favor of legitimacy. We explained the rationale of this rule in the recent case of Cabatania v. Court of Appeals22: The presumption of legitimacy does not only flow out of a declaration in the statute but is based on the broad principles of natural justice and the supposed virtue of the mother. The presumption is grounded on the policy to protect the innocent offspring from the odium of illegitimacy. The presumption of legitimacy of the child, however, is not conclusive and consequently, may be overthrown by evidence to the contrary. Hence, Article 255 of the New Civil Code23 provides: Article 255. Children born after one hundred and eighty days following the celebration of the marriage, and before three hundred days following its dissolution or the separation of the spouses shall be presumed to be legitimate. Against this presumption no evidence shall be admitted other

than that of the physical impossibility of the husbands having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of the child. This physical impossibility may be caused: 1) By the impotence of the husband; 2) By the fact that husband and wife were living separately in such a way that access was not possible; 3) By the serious illness of the husband.24 The relevant provisions of the Family Code provide as follows: ART. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. There had been divergent and incongruent statements and assertions bandied about by the parties to the present petition. But with the advancement in the field of genetics, and the availability of new technology, it can now be determined with reasonable certainty whether Rogelio is the

biological father of the minor, through DNA testing. DNA is the fundamental building block of a persons entire genetic make-up. DNA is found in all human cells and is the same in every cell of the same person. Genetic identity is unique. Hence, a persons DNA profile can determine his identity.25 DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an individual is examined. The DNA is processed to generate a pattern, or a DNA profile, for the individual from whom the sample is taken. This DNA profile is unique for each person, except for identical twins. Everyone is born with a distinct genetic blueprint called DNA (deoxyribonucleic acid). It is exclusive to an individual (except in the rare occurrence of identical twins that share a single, fertilized egg), and DNA is unchanging throughout life. Being a component of every cell in the human body, the DNA of an individuals blood is the very DNA in his or her skin cells, hair follicles, muscles, semen, samples from buccal swabs, saliva, or other body parts. The chemical structure of DNA has four bases. They are known as A (Adenine), G (guanine), C (cystosine) and T (thymine). The order in which the four bases appear in an individuals DNA determines his or her physical make up. And since DNA is a double stranded molecule, it is composed of two specific paired bases, A-T or T-A and G-C or C-G. These are called "genes." Every gene has a certain number of the above base pairs distributed in a particular sequence. This gives a person his or her genetic code. Somewhere in the DNA framework, nonetheless, are sections that differ. They are known as "polymorphic loci," which are the areas analyzed in DNA typing (profiling, tests, fingerprinting). In other words, DNA typing simply means determining the "polymorphic loci." How is DNA typing performed? From a DNA sample obtained or extracted, a molecular biologist may proceed to analyze it in several ways. There are five (5)

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techniques to conduct DNA typing. They are: the RFLP (restriction fragment length polymorphism); "reverse dot blot" or HLA DQ a/Pm loci which was used in 287 cases that were admitted as evidence by 37 courts in the U.S. as of November 1994; DNA process; VNTR (variable number tandem repeats); and the most recent which is known as the PCR([polymerase] chain reaction) based STR (short tandem repeats) method which, as of 1996, was availed of by most forensic laboratories in the world. PCR is the process of replicating or copying DNA in an evidence sample a million times through repeated cycling of a reaction involving the so-called DNA polymerize enzyme. STR, on the other hand, takes measurements in 13 separate places and can match two (2) samples with a reported theoretical error rate of less than one (1) in a trillion. Just like in fingerprint analysis, in DNA typing, "matches" are determined. To illustrate, when DNA or fingerprint tests are done to identify a suspect in a criminal case, the evidence collected from the crime scene is compared with the "known" print. If a substantial amount of the identifying features are the same, the DNA or fingerprint is deemed to be a match. But then, even if only one feature of the DNA or fingerprint is different, it is deemed not to have come from the suspect. As earlier stated, certain regions of human DNA show variations between people. In each of these regions, a person possesses two genetic types called "allele," one inherited from each parent. In [a] paternity test, the forensic scientist looks at a number of these variable regions in an individual to produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the childs DNA was inherited from the mother. The other half must have been inherited from the biological father. The alleged fathers profile is then examined to ascertain whether he has the DNA types in his profile, which

match the paternal types in the child. If the mans DNA types do not match that of the child, the man is excluded as the father. If the DNA types match, then he is not excluded as the father.26 In the newly promulgated rules on DNA evidence it is provided: SEC. 3 Definition of Terms. For purposes of this Rule, the following terms shall be defined as follows: xxxx (c) "DNA evidence" constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples; (d) "DNA profile" means genetic information derived from DNA testing of a biological sample obtained from a person, which biological sample is clearly identifiable as originating from that person; (e) "DNA testing" means verified and credible scientific methods which include the extraction of DNA from biological samples, the generation of DNA profiles and the comparison of the information obtained from the DNA testing of biological samples for the purpose of determining, with reasonable certainty, whether or not the DNA obtained from two or more distinct biological samples originates from the same person (direct identification) or if the biological samples originate from related persons (kinship analysis); and (f) "Probability of Parentage" means the numerical estimate for the likelihood of parentage of a putative parent compared with the probability of a random match of two unrelated individuals in a given population. Amidst the protestation of petitioner against the DNA analysis, the resolution thereof may provide the definitive key to the resolution of the issue of support for minor Joanne. Our articulation in Agustin v. Court of Appeals27 is particularly relevant, thus:

Our faith in DNA testing, however, was not quite so steadfast in the previous decade. In Pe Lim v. Court of Appeals (336 Phil. 741, 270 SCRA 1), promulgated in 1997, we cautioned against the use of DNA because "DNA, being a relatively new science, (had) not as yet been accorded official recognition by our courts. Paternity (would) still have to be resolved by such conventional evidence as the relevant incriminating acts,verbal and written, by the putative father." In 2001, however, we opened the possibility of admitting DNA as evidence of parentage, as enunciated inTijing v. Court of Appeals [G.R. No. 125901, 8 March 2001, 354 SCRA 17]: x x x Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and child are analyzed to establish parentage. Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of

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DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said results is to deny progress. The first real breakthrough of DNA as admissible and authoritative evidence in Philippine jurisprudence came in 2002 with out en banc decision in People v. Vallejo [G.R. No. 144656, 9 May 2002, 382 SCRA 192] where the rape and murder victims DNA samples from the bloodstained clothes of the accused were admitted in evidence. We reasoned that "the purpose of DNA testing (was) to ascertain whether an association exist(ed) between the evidence sample and the reference sample. The samples collected (were) subjected to various chemical processes to establish their profile. A year later, in People v. Janson [G.R. No. 125938, 4 April 2003, 400 SCRA 584], we acquitted the accused charged with rape for lack of evidence because "doubts persist(ed) in our mind as to who (were) the real malefactors. Yes, a complex offense (had) been perpetrated but who (were) the perpetrators? How we wish we had DNA or other scientific evidence to still our doubts." In 2004, in Tecson, et al. v. COMELEC [G.R. Nos. 161434, 161634 and 161824, 3 March 2004, 424 SCRA 277], where the Court en banc was faced with the issue of filiation of then presidential candidate Fernando Poe, Jr., we stated: In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead

parent could be resorted to. A positive match would clear up filiation or paternity. In Tijing v. Court of Appeals, this Court has acknowledged the strong weight of DNA testing... Moreover, in our en banc decision in People v. Yatar [G.R. No. 150224, 19 May 2004, 428 SCRA 504], we affirmed the conviction of the accused for rape with homicide, the principal evidence for which included DNA test results. x x x. Coming now to the issue of remand of the case to the trial court, petitioner questions the appropriateness of the order by the Court of Appeals directing the remand of the case to the RTC for DNA testing given that petitioner has already died. Petitioner argues that a remand of the case to the RTC for DNA analysis is no longer feasible due to the death of Rogelio. To our mind, the alleged impossibility of complying with the order of remand for purposes of DNA testing is more ostensible than real. Petitioners argument is without basis especially as the New Rules on DNA Evidence28 allows the conduct of DNA testing, either motu proprio or upon application of any person who has a legal interest in the matter in litigation, thus: SEC. 4. Application for DNA Testing Order. The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a showing of the following: (a) A biological sample exists that is relevant to the case; (b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons;

(c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing. From the foregoing, it can be said that the death of the petitioner does not ipso facto negate the application of DNA testing for as long as there exist appropriate biological samples of his DNA. As defined above, the term "biological sample" means any organic material originating from a persons body, even if found in inanimate objects, that is susceptible to DNA testing. This includes blood, saliva, and other body fluids, tissues, hairs and bones.29 Thus, even if Rogelio already died, any of the biological samples as enumerated above as may be available, may be used for DNA testing. In this case, petitioner has not shown the impossibility of obtaining an appropriate biological sample that can be utilized for the conduct of DNA testing. And even the death of Rogelio cannot bar the conduct of DNA testing. In People v. Umanito,30 citing Tecson v. Commission on Elections,31 this Court held: The 2004 case of Tecson v. Commission on Elections [G.R. No. 161434, 3 March 2004, 424 SCRA 277] likewise reiterated the acceptance of DNA testing in our jurisdiction in this wise: "[i]n case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to." It is obvious to the Court that the determination of whether appellant is the father of AAAs child, which may be accomplished through DNA testing, is material to the fair and correct adjudication of the instant appeal. Under Section 4

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of the Rules, the courts are authorized, after due hearing and notice, motu proprio to order a DNA testing. However, while this Court retains jurisdiction over the case at bar, capacitated as it is to receive and act on the matter in controversy, the Supreme Court is not a trier of facts and does not, in the course of daily routine, conduct hearings. Hence, it would be more appropriate that the case be remanded to the RTC for reception of evidence in appropriate hearings, with due notice to the parties. (Emphasis supplied.) As we have declared in the said case of Agustin v. Court of Appeals32: x x x [F]or too long, illegitimate children have been marginalized by fathers who choose to deny their existence. The growing sophistication of DNA testing technology finally provides a much needed equalizer for such ostracized and abandoned progeny. We have long believed in the merits of DNA testing and have repeatedly expressed as much in the past. This case comes at a perfect time when DNA testing has finally evolved into a dependable and authoritative form of evidence gathering. We therefore take this opportunity to forcefully reiterate our stand that DNA testing is a valid means of determining paternity. WHEREFORE, the instant petition is DENIED for lack of merit. The Decision of the Court of Appeals dated 23 November 2005 and its Resolution dated 1 March 2006 are AFFIRMED. Costs against petitioner. SO ORDERED. Ynares-Santiago, Chairperson, AustriaMartinez,, Nachura, Reyes, JJ., concur. PROOF OF FILIATION

and ESMERNA FERNANDEZLEGASPI, AS HEIRS OF PRUDENCIO FERNANDEZ, petitioners, vs. COURT OF APPEALS (FORMER ELEVENTH DIVISION), JESUS CIOCON, CIRILO CIOCON, VICENTE URBANOZO, ALFONSO JARDENIL and ANUNCIACION JOVER, LEVITA LLERA (ACCOMPANIED BY HER HUSBAND ANTONIO BERLIZO), JOEL LLERA, FEBE LLERA (ACCOMPANIED BY HER HUSBAND LUCIANO LIM), SALVACION N. VDA. DE LLERA, HOSPICIO PEDRINA, RUFO CALVEZ, and MONSERRAT VILLABA,[1] respondents DECISION QUISUMBING, J.: For review is the Decision dated February 17, 1994, of the Court of Appeals which dismissed the special civil action for certiorari, prohibition and mandamus with application for preliminary injunction filed by petitioners in CA-G.R. SP No. 30086. The decision effectively affirmed the Order dated July 23, 1992 of the Regional Trial Court of Negros Occidental, Branch 47, for the cancellation of Entry No. 178073, which was the notice of lis pendens pertaining to Civil Case Nos. 7687 and 7723 annotated in TCT No. T165298 of the Registry of Deeds of Bacolod. This petition now asks for (1) the annulment of the said order of cancellation; (2) the re-annotation of said notice of lis pendens; and (3) the annulment of the decision of said RTC dated October 15, 1991 that set aside the original decision dated May 30, 1988 of the RTC in the aforecited civil cases,[2] and the order dated October 31, 1991 granting private respondent Jesus Ciocons Motion for Execution Pending Appeal,[3] and all proceedings conducted pursuant to said decision and order. It also seeks the review of the Court of Appeals resolution dated May 30, 1994 denying petitioners motion for reconsideration. This petition involves Lot 435 of the Bacolod cadastre originally titled to petitioners predecessor-in-interest, Prudencio Fernandez. After Fernandez acquired ownership of the lot, he tried to eject private respondent Jesus Ciocon and some other occupants off the property. Allegedly, Ciocon asked Fernandez that he be given a last chance to repurchase the lot. Fernandez refused.After this rejection, on September 21, 1985, Ciocon instituted against Fernandez Civil Case No. 7687 before Branch 47 of the RTC of Negros Occidental for reconveyance of the land or what

remains of it after deducting portions already sold to others. Ciocon claimed he had paid for the full reconveyance price to Fernandez on February 7, 1958 for which Fernandez signed a receipt.Fernandez through his guardian ad litem denied receiving any money from Ciocon and averred that Ciocons receipt was a forgery. Fernandez died on January 23, 1966. He was substituted in the civil suit by his heirs namely: Dominadora,[4] and their children Eduardo, Teresita, Leticia, Adolfo, Gloria, Zenaida and Esmerna. Private respondents Levita Llera, Hospicio Pedrina, Rufo Calves, and Monserrat Villalba were intervenors in said suit who claimed that they had purchased portions of Lot 435 from Ciocon.Civil Case 7723 was filed by Alfonso Jardenil, Anunciacion Jover, and Vicente Urbanozo who also claimed to have bought portions of the lot from Ciocon. Civil Case No. 7687 and Civil Case No. 7723 were eventually consolidated. On May 30, 1988, Judge Enrique Jocson, presiding judge of RTC Branch 47, noting that the parties were indifferent about submitting to a decision based on extant but incomplete records proceeded to render judgment dismissing both complaints and ordering private respondent Ciocon and the intervenors to deliver immediate possession of Lot No. 435 to the heirs of Fernandez.[5] Private respondents and intervenors timely filed their notices of appeal which were given due course on July 29, 1988. On March 12, 1990, Judge Jocson issued an Order requiring the parties to state in writing within fifteen (15) days whether or not they agree to have the records transmitted to the Court of Appeals with incomplete transcripts of stenographic notes, and if they should fail to reply after fifteen (15) days from receipt of the order, the court would consider the parties silence as conformity and order the transmittal of the extant records to the Court of Appeals.[6] On July 29, 1988 an order was issued ordering transmittal of the records to the appellate court.[7] Meanwhile the Court of Appeals noted the incompleteness of the records and ordered the re-taking and completion of missing testimonies. On September 30, 1991, Ciocon filed a Motion to have Above-Entitled Cases Decided Anew,[8] which Judge Jocson granted on October 3, 1991. Judge Jocson reasoned that since the cases were decided on the basis of the records taken by his predecessor, and without the testimony of Roberto Tolentino, the handwriting expert

SECOND DIVISION [G.R. No. 115813. October 16, 2000] EDUARDO FERNANDEZ, TERESITA FERNANDEZ-CAVA, LETICIA FERNANDEZ-TORREA, ADOLFO FERNANDEZ, GLORIA FERNANDEZ-HUGONIN, ZENAIDA FERNANDEZ-ILEDAN,

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who testified on the alleged forgery of Fernandez signature, granting the motion was in the best interest of justice.[9] On October 15, 1991, Judge Jocson rendered a second decision setting aside the judgment rendered on May 30, 1988. In the second decision, the judge explained that the Court of Appeals, after receiving the notices of appeal and the incomplete records, remanded the case and ordered the re-taking of the testimonies of witnesses Ciocon and Tolentino. The second decision was a complete reversal of the first decision and directed the return of the disputed lot to Ciocon and intervenors except the portions still being litigated. It also ordered the cancellation of the new title issued to Fernandez and the issuance of a new title in the name of Jesus Ciocon and intervenors.[10] Not surprisingly, on October 25, 1991, petitioners appealed the second decision.[11] On October 29, 1991, Ciocon moved for execution pending appeal.[12] Six days after, on November 4, 1991, the trial court granted the motion ex parte.[13] The TCT in the name of Fernandez was cancelled and a new TCT was issued in the name of respondent Ciocon. On December 2, 1991, petitioners motion for reconsideration of the order was denied.[14] On March 17, 1992, Ciocon filed a motion asking that the Register of Deeds of Bacolod City be directed to cancel entries in TCT No. T-164785, particularly Entries Nos. 44213, 1063, 5121, 5381 and 13188 upon the plaintiffs filing of additional bond of P300,000.00.[15] Entry No. 178073, the notice of lis pendens involved in Civil Case No. 7687 and 7723, was not among the entries listed in the motion. It was only on April 20, 1992, at 3:45 P.M., that Entry No. 178073 was annotated on TCT T-164785.[16] On July 23, 1992, Judge Jocson ordered the cancellation of the entries of the notices of lis pendens listed in the aforementioned motion, including Entry Nos. 177656, 178526, 178527, and178073, all unlisted in the March 17, 1992 motion.[17] Ciocon then sold the subject property to one Eduardo Gargar, resulting in the issuance of TCT No. T-165298 in Gargars name. Entry No. 178073 was one of the entries carried over in TCT No. T165298.[18] Gargar immediately mortgaged the property to the Rizal Commercial and Banking Corporation to secure a loan for P2,000,000.00. issued On May 28, 1992, the trial court another Order, directing the

transmittal of the records to the Court of Appeals.[19] On February 2, 1993, petitioners filed a petition for certiorari, prohibition and mandamus with application for preliminary injunction under Rule 65 to annul and set aside the Order dated July 23, 1992, of the Regional Trial Court cancelling the lis pendens notations in the TCT, and its Decision dated October 15, 1991 setting aside its original decision dated May 30, 1988, for having been issued without jurisdiction. Petitioners prayed that the trial court be compelled to elevate the records of Civil Case No. 7687 and Civil Case No. 7723 to the Court of Appeals. After hearing on March 17, 1993, the case was submitted for decision.[20] In its Decision, dated February 17, 1994, the Court of Appeals dismissed the petition and ordered the judge-designate to desist from further proceeding with Civil Cases No. 7687 and No. 7723, and to elevate the records for consideration on appeal. Said the appellate court: It is our considered opinion that justice would be better served if we allow the regular appeal, which had been timely filed, to proceed in due course instead of annulling the various proceedings taken in the court below. The observation is partly based on the single fact agreed on by both parties, that the appeal be allowed to push through. It must also be noted that until and unless there is a definitive ruling, and this can only be achieved in a final judgment, on the issue of rightful possession and ownership of the property in question, there can be no satisfactory solution to the case. Section 1 of Rule 65 (Rules of Court) governing the special civil action of certiorari presupposes that there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of law. In the case at bar, the remedy of appeal is available which, we believe, would be more speedy and adequate, and demonstrably congruent with law and justice under the circumstances. Evidence has been submitted, after the hearing of the application for preliminary injunction, that a judge has been designated to substitute for the respondent Judge who had been separated from the service. Hence, this Courts order is directed to said judge-designate. WHEREFORE, the judge-designate in Civil Cases Nos. 7687 and 7723 is hereby

ordered to desist from further proceeding with said cases. Instead, he is hereby directed to elevate the record thereof to this Court for consideration on appeal. Petition DISMISSED. SO ORDERED.[21] The motion for reconsideration of the dismissal of the petition was denied. Hence, this petition, asserting that: The order of July 23, 1992 (Annex C), insofar as it cancelled the notice of lis pendens caused to be annotated by the petitioners, is null and void because it was issued without jurisdiction, and in violation of due process and fundamental rules of procedure.[22] In its support petitioners argue that: (1) The cancellation of said notice of lis pendens is a patent nullity because no motion for the cancellation of the notice (Entry No. 178073) was filed. (2) Assuming that a motion was filed, by then, the RTC had already lost jurisdiction to grant the same since the appeal by petitioners from the first and even the second decision had been perfected. (3) Even assuming that the motion had been filed and the RTC still had jurisdiction, there was no showing of the necessity for the cancellation of said notice of lis pendens. On the contrary, there were reasons for maintaining said notice of lis pendens. (4) The execution pending appeal in 1991 was itself invalid. Considering that the issues of ownership and possession are best left for determination by the Court of Appeals, petitioners in essence aver that the appellate court erred in dismissing the petition for certiorari insofar as it refused to pass on (1) the impropriety and invalidity of the trial courts cancellation of the notice of lis pendens and (2) the lack of jurisdiction of the trial court when the latter granted the motion for execution of its second decision dated October 15, 1991, pending

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appeal, which was the basis of the cancellation of the cited notice of lis pendens. On the first point, petitioners contend that in promulgating its assailed decision, and denying the corrective writ of certiorari against the RTC, the Court of Appeals refused to recognize that, at the very least, the cancellation by the RTC of the notice of lis pendens, particularly Entry No. 178073, upon a mere ex parte motion is already grave abuse of discretion, and even graver abuse since Entry No. 178073 was not even subject of the motion at all. Petitioners stress that respondent Ciocon prayed for cancellation only of certain entries appearing on the TCT but not Entry No. 178073. Petitioners point out that at the time Ciocon asked for cancellation of the other entries, there was no Entry No. 178073 yet. This entry was made more than a month after Ciocon filed his motion for cancellation of certain entries.[23] Petitioners contend that without a motion for cancellation of Entry No. 178073, no hearing on it could be conducted. Without notice and hearing, there was manifest denial of petitioners right to due process. This infirmity in the ex parte cancellation resulted in the hasty use by Gargar, the new registered owner of Lot 435, of the property as collateral for a P2,000,000.00 loan, manifestly prejudicing petitioners. Petitioners assert that in their motion for reconsideration of the petition, they conceded that the issues of rightful possession and ownership be resolved in the appeal rather than risk more delay. But they resolutely ask for the nullification of the order cancelling the cited notice of lis pendens and pray for re-annotation thereof. In their opposition and comment to the petition, private respondents claim, with respect to the cited notice of lis pendens, that the order cancelling the annotation of the notice was within the discretion of the RTC and that there was no abuse of discretion on its part because the RTC could determine on its own if a notice was for the purpose of molesting the adverse party or was not necessary to protect the rights of the party who caused its annotation. They contend that since the determination of the basis for cancellation of the notice is factual, the Supreme Court is already bound by such determination by the RTC. We note, at the outset, that the trial courts determination of the basis for cancellation of said notice is precisely the bone of contention in the present appeal. While the trial court has inherent power to cancel a notice of lis pendens, such power is exercised under express provisions of law.[24] A notice of lis pendens is an announcement to the whole

world that a particular real property is in litigation. Such announcement is founded upon public policy and necessity, the purpose of which is to keep the properties in litigation within the power of the court until the litigation is terminated and to prevent the defeat of the judgment or decree by subsequent alienation.[25] Under Sec. 24, Rule 14 of the Rules of Court,[26] now Sec. 14 of Rule 13 of the 1997 Rules of Civil Procedure, a notice of lis pendens may be canceled only after proper showing that the purpose of its annotation is for molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be annotated. We have scrutinized the records but found no showing that the annotation was caused by petitioners merely to molest private respondents, nor that it was not needed to protect petitioners rights. The peculiar and exceptional circumstances of the case, as in the rendering of two conflicting decisions by the same judge, indubitably manifest that the annotation was not merely to molest the other party but was needed to protect petitioners interest from any hasty transfer of the property to another, making recovery of the property extremely complicated. This is exactly what happened in this case when the notice of lis pendens was cancelled. Further, the trial courts inherent power to cancel a notice of lis pendens is exercised only under exceptional circumstances, such as: where such circumstances are imputable to the party who caused the annotation; where the litigation was unduly prolonged to the prejudice of the other party because of several continuances procured by petitioner; where the case which is the basis for the lis pendens notation was dismissed for non-prosequitur on the part of the plaintiff; or where judgment was rendered against the party who caused such a notation. In such instances, said notice is deemed ipso facto cancelled.[27] These exceptional circumstances are not present in this case. It will be noted that although the case took long to resolve, it was not due to petitioners.Petitioners had in fact been adjudged owners of the lot in the first decision and it was private respondents who filed a motion that the case be decided anew, despite a timely notice of appeal from the first decision. Furthermore, it was the Court of Appeals which ordered the retaking of the lost testimonies, which the trial court erroneously took as a remand of the case, resulting in a second decision which was also timely appealed. The records mentioned no such order to remand by the Court of Appeals. The cancellation of the lis pendens notations should not have been ordered since there had been no final judgment yet, the decisions having been timely appealed.

More significantly, a notice of lis pendens cannot be ordered cancelled on an ex parte motion, much less without any motion at all. There should be notice to the party who caused the annotation so that he may be heard to object to the cancellation of his notice and show to the court that the notice of lis pendens is necessary to protect his rights and is not merely to molest the other party.[28] As the records of this case reflect, private respondent Ciocons motion dated March 17, 1992, to cancel certain notices of lis pendens did not include a request to cancel Entry No. 178073 in particular, and it certainly could not have been included since the entry was annotated in the TCT only a month after the filing of the motion, on April 20, 1992. However, Judge Jocsons order of cancellation included Entry No. 178073.[29] Neither can a notice of lis pendens be ordered cancelled upon the mere filing of a bond by the party on whose title the notice is annotated. The ultimate purpose of the annotation which is to keep the properties in litigation within the power of the court and to prevent the defeat of the judgment by subsequent alienation will be rendered meaningless if private respondents are allowed to file a bond, regardless of the amount, in substitution of said notice.[30] As it happened in this case, Ciocon sold the property to Gargar who encumbered the property as security for a loan. We are, therefore, constrained to conclude that, contrary to private respondents stand, the Court could not be bound by the trial courts determination of the bases of the cancellation of the cited notice.Further, we find the trial courts order injudicious and erroneous. We now resolve the question of jurisdiction. The records show that the notices of appeal from the first decision of the trial court were filed within the reglementary period and were duly approved.[31] At such time the appeals were perfected. There is abundant jurisprudence stating that after perfection of an appeal, the trial court loses jurisdiction to amend a decision appealed from, and also to issue orders for execution pending appeal. The perfection of an appeal divests the trial court of jurisdiction over a case and the trial court may issue orders only if in the exercise of its residual functions. Fundamental is the doctrine that jurisdiction is fixed by law. No amount of rationalization therefore, even a declaration that a new decision is being made in the best interest of justice, can confer on the trial court the jurisdiction it had lost. Jurisdiction cannot be acquired, waived, enlarged, diminished or extended by any act or omission of the parties. Neither is it conferred by acquiescence of the court.[32]

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It must also be borne in mind that the order of cancellation of notation of lis pendens was based on the ex parte approval of the motion for execution pending appeal of the trial courts second decision. This order is fatally flawed, for being the result of a hearing ex parte, hence without notice to the adverse party and thereby violative of due process. The Court is not unaware of Asmala vs. Comelec,[33] holding that the mere filing of a notice of appeal does not divest the trial court of its jurisdiction over a case to resolve pending incidents; and Roxas vs. Dy,[34] that the cancellation of a notice of lis pendens, being a mere incident to an action, may be ordered at any given time by the court having jurisdiction over it. The operative phrase, however, is that the cancellation be ordered by a court having jurisdiction over it. Such is not the case here for the RTC already lost its jurisdiction upon the perfection of the appeal from its first decision as early as 1988. The cancellation order of the notice of lis pendens in this case, Entry No. 178073, should be set aside for three reasons. First, it was granted ex parte. Petitioners were deprived of their right to be heard on notice. Second, there was no showing that the annotation of the notice was for the purpose of molesting the adverse party, nor that it was not necessary to protect the rights of those who sought the annotation. And third, at the time of the order of cancellation of the notice, the trial court no longer had jurisdiction. Lastly, we need not delve on the appellate courts dismissal of the petition for certiorari. It is mooted by petitioners acceptance, although reluctantly, of the appellate courts judgment that the issues of rightful possession and ownership of the property be resolved in the appeal. WHEREFORE, the assailed decision of the Court of Appeals is hereby MODIFIED as follows: (1) The Order dated July 23, 1992 of the Regional Trial Court of Negros Occidental, Branch 47, in Civil Cases No. 7687 and No. 7723 insofar as it directed the cancellation of the notice of lis pendens, Entry No. 178073 on TCT No. T165298, is ANNULLED and SET ASIDE. (2) The Register of Deeds of the City of Bacolod is directed to RE-ANNOTATE the notice of lis pendens, Entry No. 178073 on TCT No. T165298.

(3) The judge-designate in Civil Cases No. 7687 and No. 7723 is ordered to elevate the records of said cases to the Court of Appeals for consideration on appeal. (4) The Court of Appeals upon receipt of the complete records is directed to immediately proceed with the appeal for the determination of the rightful ownership and possession of the lot in dispute. Costs against private respondents. SO ORDERED. Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

1. It is undisputed that Generosa gave birth to a baby boy named Rogelio who died when he was only twelve (12) years old as paralytic. In the testimony of Romeo Fernandez (TSN, Aug. 31, 1994, pp. 9-14) it was revealed that the late Spouses being childless by the death of their son, purchased from a certain Miliang for P20.00 a one (1) month baby boy. The boy being referred to was later on identified as Rodolfo Fernandez, the herein appellant. Appellant was taken care of by the couple and was sent to school and became a dental technician. He lived with the couple until they became old and disabled. On July 20, 1982, Jose K. Fernandez died thereby leaving his wife Generosa A. de Venecia and Rodolfo Fernandez and an estate consisting of the following: (a) A parcel of land (Lot 9132, before Lot No. 444-C, of the Cadastral Survey of Dagupan, Cadastral Case No. 41, G.L.R.O. Cadastral Record No. 925), situated in the Barrio of Pantal, City of Dagupan. Bounded on the NE. by Lot No. 447; on the SE. by Lot No. 9134; on the SW. by the Arellano Street; and on the NW. by Lot No. 9131. Containing an area of One Hundred Ninety Four (194) square meters, more or less. Covered by Transfer Certificate of Title No. 525 (T-9267) Pangasinan Registry of Deeds. (b) A two (2) storey residential building made of concrete and wood, G.I. roofing with a floor area of 154 square meters and 126 square meters of the first and second floor, respectively. Declared under Tax Decl. No. 22592-1 and assessed therein at P26,000.00. On August 31, 1989, appellant and Generosa de Venecia executed a Deed of Extra-judicial Partition dividing and allocating to themselves the following: To: Generosa Fernandez de Venecia Vda. De

THIRD DIVISION [G. R. No. 143256. August 28, 2001] RODOLFO FERNANDEZ and MERCEDES CARANTO FERNANDEZ, HUSBAND and WIFE, EDDIE C. FERNANDEZ and LUZ FERNANDEZ, SPOUSES,petitioners, vs. ROMEO FERNANDEZ, POTENCIANO FERNANDEZ, FRANCISCO FERNANDEZ, JULITA FERNANDEZ, WILLIAM FERNANDEZ, MARY FERNANDEZ, ALEJANDRO FERNANDEZ, GERARDO FERNANDEZ, RODOLFO FERNANDEZ and GREGORIO FERNANDEZ, respondents. DECISION GONZAGA-REYES, J.: Before Us is a petition for review on certiorari assailing the decision[1] of the respondent Court of Appeals dated December 22, 1999 affirming the decision[2] of the Regional Trial Court Branch 40, Dagupan City in an action for nullity of contracts, partition, recovery of possession and damages in favor of plaintiffs-appellees, herein respondents. The facts as found by the respondent Court of Appeals, are as follows:[3] The late Spouses Dr. Jose K. Fernandez, and Generosa A. de Venecia were the registered owners of a parcel of land located at Dagupan City covered by TCT No. T-9267 (525) consisting of 194 sq. meters, and the two-storey building constructed thereon covered by Tax Declaration 22-592-

(a) 119.5 sq. m. located on southwestern portion of the land;

the

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(b) Whole mentioned;

residential

house

above-

To: Rodolfo V. Fernandez 74.5 square meters to be taken on the northeastern portion of the land. On the same day, Generosa de Venecia executed a Deed of Absolute Sale in favor of Eddie Fernandez, appellants son over the following: A portion of One Hundred Nineteen and One-Half (119.5) Square meters including the building and/or all existing thereon to be taken from the southwestern portion of the parcel of land described as follows, to wit: A parcel of land (Lot No. 9132, before Lot No. 444-C, of the Cadastral Survey of Dagupan, Cadastral Case No. 41, G.L.R.O. Cadastral Record No. 925), situated in the Barrio of Pantal, City of Dagupan. Bounded on the NE. by Lot No. 447; on the SE by Lot No. 9134; on the SW. by the Arellano Street; and on the NW. by Lot No. 9131. Containing an area of One Hundred and Ninety-Four (194), Square Meters, more or less, covered by TRANSFER CERTIFICATE OF TITLE NO. 525 (T-9267) Pangasinan Registry of Deeds (Exh. 8, Exhibits for the Defendants) After learning the transaction, Romeo, Potenciano, Francisco, Julita, William, Mary, Alejandro, Gerardo, Rodolfo and Gregorio, all surnamed Fernandez, being nephews and nieces of the deceased Jose K. Fernandez, their father Genaro being a brother of Jose, filed on September 21, 1994, an action to declare the Extra-Judicial Partition of Estate and Deed of Sale void ab initio (docketed as Civil Case No. 94-00016D). The complaint alleged that defendants (herein appellants), motivated by unmitigated greed, deliberate and malicious acts of depriving the plaintiff and other heirs (herein appellees) of the deceased spouses, without basis of heirship or any iota of rights to succession or inheritance, taking advantage of the total physical and mental incapacity of the deceased Generosa de Venecia aggravated by unlawful scheme confederated, colluded and conspired with each other in causing the fake, simulated grossly inauthentic contracts purporting to be executed on August 31, 1989 and jointly on the same date, caused the execution of the deed of absolute sale purportedly signed by Generosa de Venecia covering the same property described in the deed of extrajudicial partition and by virtue of the said

acts, appellants were able to secure new land titles in their favor (Records, pp. 3-4, Complaint). Appellees thus prayed that the Deed of Extra-judicial Partition, Deed of Absolute Sale and Transfer Certificate of Title No. 54641 be declared void from the beginning. Significantly, in their answer, defendants alleged: 16. That the deceased Sps. Jose K. Fernandez and Generosa were husband and wife blessed with one child the herein defendant Rodolfo V. Fernandez whom they acknowledged during their lifetime. (underscoring supplied) 18. That the Deed of Extrajudicial Partition and Deed of Absolute Sale executed by the late Generosa de Venecia and defendant Rodolfo V. Fernandez which are now in question were all made with the full knowledge, consent and approval of the parties thereto and for value. (Records, pp. 20-21, Answer). On May 10, 1996, the Regional Trial Court rendered a decision in favor of the plaintiffs, the dispositive portion reads:[4] WHEREFORE, judgment is hereby rendered in favor of plaintiffs and against the defendants; 1. Declaring the Deed of ExtraJudicial Partition dated August 31, 1989 (Exh. 3), the Deed of Absolute Sale dated August 31, 1989 (Exh. 8), the TCT No. 54641, and the TCT No. 54693 null and void; 2. Ordering the defendants to reconvey to, and to peacefully surrender to the plaintiffs the possession of the house and lot in question; 3. Ordering the defendants, jointly and severally to pay to plaintiffs the following:

(a) (b)

P50,000.00 as compensatory damages; P100,000.00 damages; as moral

(c) P20,000.00 as attorneys fees; and (d) P2,000.00 as litigation costs. SO ORDERED. In so ruling, the trial court found that defendant Rodolfo Fernandez was not a legitimate nor a legally adopted child of spouses Dr. Jose Fernandez and Generosa de Venecia Fernandez, hence Rodolfo could not inherit from the spouses. Rodolfos claim as a son of the deceased spouses Fernandez was negated by the fact that (1) he only reached high school and was told to stop studying so that he could help in the clinic of Dr. Fernandez, (2) he failed to present any birth certificate, (3) the book entitled Fercolla clan which was compiled and edited by respected people such as Ambassador Armando Fernandez, Justice Jorge Coquia and Teresita Coquia-Sison, showed the geneology of the family of Dr. Jose and Generosa Fernandez without a child; a pedigree may be admitted in evidence to prove the facts of genealogy and that entries in a family bible or other family books or charts, engravings or rings, family portraits and the like, may be received as evidence of pedigree,[5] (4) the certification issued by the Records Management and Archives Office that there was no available information about the birth of petitioner Rodolfo to the spouses Fernandez, (5) the application of Dr. Jose Fernandez for backpay certificate naming petitioner Rodolfo as his son was doubtful considering that there were blemishes or alteration in the original copy; (6) that Rodolfos baptismal certificate was spurious and falsified since there were no available records of baptism with the parish from June 7, 1930 to August 8, 1936, while Rodolfos baptismal certificate which was issued in 1989 showed that he was baptized on November 24, 1934. The court found that the extra-judicial partition and the deed of absolute sale were prepared and executed under abnormal, unusual and irregular circumstances which rendered the documents null and void. Defendants Rodolfo Fernandez et. al appealed to the respondent Court of Appeals which affirmed the trial courts judgment in its assailed decision dated December 22, 1999. In resolving the appeal, the respondent court delved into the legitimacy of defendant-appellant Rodolfo Fernandez filiation with the deceased spouses. It found that appellants evidence which consisted

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of a certificate of baptism stating that he was a child of the spouses Fernandez and the application for recognition of rights to back pay under RA 897 filed by Dr. Jose Fernandez, wherein the latter referred to Rodolfo as his son, did not acquire evidentiary weight to prove his filiation. The appellate court concluded that while baptismal certificates may be considered public documents, they were evidence only to prove the administration of the sacraments on the dates therein specified, but not the veracity of the statements or declarations made therein with respect to his kinsfolk; that while the application for back pay was a public document, it was not executed to admit the filiation of Jose K. Fernandez with Rodolfo V. Fernandez, the herein appellant; that the public document contemplated in Article 172 of the Family Code referred to the written admission of filiation embodied in a public document purposely executed as an admission of filiation and not as obtaining in this case wherein the public document was executed as an application for the recognition of rights to back pay under Republic Act No. 897. Appellants Rodolfo Fernandez et al filed their motion for reconsideration which was denied in a resolution dated May 17, 2000.[6] Rodolfo Fernandez et al filed the instant petition for review with the following issues: I THE COURT OF APPEALS ERRED IN AFFIRMING THE JUDGMENT OF THE TRIAL COURT ORDERING THE DEFENDANTS, PETITIONERS HEREIN, TO RECONVEY TO, AND PEACEFULLY SURRENDER TO THE PLAINTIFFS, RESPONDENTS HEREIN, THE POSSESSION OF THE HOUSE AND LOT IN QUESTION BECAUSE THE SAID ORDER IS PALPABLY CONTRARY TO THE ADMITTED FACTS THE LAW AND JURISPRUDENCE, FOR THE FOLLOWING REASONS: (a) THE HOUSE AND LOT IN QUESTION ARE ADMITTED BY THE PARTIES TO BE CONJUGAL PROPERTIES OF THE SPOUSES DR. JOSE K. FERNANDEZ AND GENEROSA DE VENECIA, AND (b) RESPONDENTS, WHO ARE NOT RELATED TO GENEROSA DE VENECIA BY CONSANGUINITY, ARE NOT HER INTESTATE HEIRS AND CANNOT SUCCEED AB INTESTATO TO HER INTESTATE ESTATE. II THE COURT OF APPEALS ERRED IN AFFIRMING THE JUDGMENT OF THE TRIAL COURT DECLARING (1) THE DEED OF EXTRAJUDICIAL PARTITION DATED AUGUST 31,

1989 (EXH. 3), THE DEED OF ABSOLUTE SALE ALSO DATED AUGUST 31, 1989 (EXH. 8), TCT NO. 54641, AND TCT NO. 54693 NULL AND VOID FOR THE FOLLOWING REASONS: (a) IT HAS NO FACTUAL BASIS DULY ESTABLISHED BY THE EVIDENCE ON RECORD, AND (b) RESPONDENTS, NOT BEING PARTIES TO THE QUESTIONED DEEDS, HAVE NO PERSONALITY TO CONTEST THE VALIDITY OF SAID DOCUMENTS. III THE COURT OF APPEALS ERRED IN AFFIRMING THE TRIAL COURTS FINDING THAT THE PETITIONER RODOLFO FERNANDEZ WAS NOT THE CHILD OF SPOUSES DR. JOSE K. FERNANDEZ AND GENEROSA DE VENECIA BECAUSE (a) THE FILIATION OF PETITIONER RODOLFO FERNANDEZ COULD NOT BE COLLATERALLY ATTACKED IN AN ACTION FOR DECLARATION OF NULLITY OF DOCUMENTS, PARTITION, RECOVERY OF POSSESSION AND DAMAGES, AND; (b) THE DECISION AS AFFIRMED BY THE COURT OF APPEALS DID NOT DECLARE IN THE DISPOSITIVE PORTION THEREOF THAT PETITIONER RODOLFO FERNANDEZ IS NOT THE CHILD OF SPOUSES DR. JOSE FERNANDEZ AND GENEROSA FERNANDEZ. IV THE COURT OF APPEALS ERRED IN AFFIRMING THE AWARD OF DAMAGES AND ATTORNEYS FEES TO THE RESPONDENTS, THERE BEING NO FACTUAL BASIS IN THE AFFIRMED DECISION TO JUSTIFY SUCH AWARD. The principal issue for resolution in this case concerns the rights of the parties to the conjugal property of the deceased spouses Fernandez. Petitioners allege that the respondent court found the extra-judicial partition executed by petitioner Rodolfo Fernandez and Generosa Fernandez, widow of Dr. Jose Fernandez, null and void because the former allegedly failed to prove legitimate filiation to his putative father, the late Dr. Jose Fernandez. Petitioners, contend, however, that the burden of proof lies with the respondents because they were the ones contesting the filiation of Rodolfo Fernandez. They insist that both lower courts had no power to pass upon the matter of filiation because it could not be

collaterally attacked in the present action but in a separate and independent action directly impugning such filiation. We are not persuaded. It must be noted that the respondents principal action was for the declaration of absolute nullity of two documents, namely: deed of extra-judicial partition and deed of absolute sale, and not an action to impugn ones legitimacy. The respondent court ruled on the filiation of petitioner Rodolfo Fernandez in order to determine Rodolfos right to the deed of extra-judicial partition as the alleged legitimate heir of the spouses Fernandez. While we are aware that ones legitimacy can be questioned only in a direct action seasonably filed by the proper party, this doctrine has no application in the instant case considering that respondents claim was that petitioner Rodolfo was not born to the deceased spouses Jose and Generosa Fernandez; we do not have a situation wherein they (respondents) deny that Rodolfo was a child of their uncles wife. The case of Benitez-Badua vs. Court of Appeals,[7] which has a similar factual backdrop is instructive: A careful reading of the above articles[8] will show that they do not contemplate a situation, like in the instant case, where a child is alleged not to be the child of nature or biological child of a certain couple. Rather, these articles govern a situation where a husband (or his heirs) denies as his own a child of his wife. Thus, under Article 166, it is the husband who can impugn the legitimacy of said child by proving: (1) it was physically impossible for him to have sexual intercourse, with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child; (2) that for biological or other scientific reasons, the child could not have been his child; (3) that in case of children conceived through artificial insemination, the written authorization or ratification by either parent was obtained through mistake, fraud, violence, intimidation or undue influence. Articles 170 and 171 reinforce this reading as they speak of the prescriptive period within which the husband or any of his heirs should file the action impugning the legitimacy of said child. Doubtless then, the appellate court did not err when it refused to apply these articles to the case at bench. For the case at bench is not where the heirs of the late Vicente are contending that petitioner is not his child by Isabel. Rather, their clear submission is that petitioner was not born to Vicente and Isabel. Our ruling in Cabatbat-Lim vs. Intermediate Appellate Court, 166 SCRA 451, 457 cited in the impugned decision is apropos, viz:

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Petitioners recourse to Art. 263 of the New Civil Code (now Art. 170 of the Family Code) is not well taken. This legal provision refers to an action to impugn legitimacy. It is inapplicable to this case because this is not an action to impugn the legitimacy of a child, but an action of the private respondents to claim their inheritance as legal heirs of their childless deceased aunt. They do not claim that petitioner Violeta Cabatbat Lim is an illegitimate child of the deceased, but that she is not the decedents child at all. Being neither legally adopted child, nor an acknowledged natural child, nor a child by legal fiction of Esperanza Cabatbat, Violeta is not a legal heir of the deceased. Thus, it is necessary to pass upon the relationship of petitioner Rodolfo Fernandez to the deceased spouses Fernandez for the purpose of determining what legal right Rodolfo has in the property subject of the extra-judicial partition. In fact, the issue of whether or not Rodolfo Fernandez was the son of the deceased spouses Jose Fernandez and Generosa de Venecia was squarely raised by petitioners in their pre-trial brief[9] filed before the trial court, hence they are now estopped from assailing the trial courts ruling on Rodolfos status. We agree with the respondent court when it found that petitioner Rodolfo failed to prove his filiation with the deceased spouses Fernandez. Such is a factual issue which has been thoroughly passed upon and settled both by the trial court and the appellate court. Factual findings of the Court of Appeals are conclusive on the parties and not reviewable by this Court and they carry even more weight[10] when the Court of Appeals affirms the factual findings of the trial court.[11] We accordingly find no cogent reason to disagree with the respondent courts evaluation of the evidence presented, thus:[12] The Records Management and Archives Office is bereft of any records of the birth of appellant Rodolfo Fernandez. On October 11, 1995, it issued a certification worded as follows: This is to certify that the Register of Births for the Municipality of Dagupan, Pangasinan in the year 1984 is not on file with the National Archives, hence, there is no available information about the birth of Rodolfo V. Fernandez alleged to have been born on November 24, 1934 to the spouses Jose K. Fernandez and Generosa de Venecia in Dagupan, Pangasinan (Records, p. 146) Appellant nonetheless, contends that the Application for Recognition of Back Pay Rights Under Act No. 897 is a public document and a conclusive proof of the

legitimate filiation between him and the deceased spouses (Rollo, p. 41, Appellants Brief). We do not agree. It may be conceded that the Application for Recognition of Back Pay Rights Under Act No. 897 is a public document nevertheless, it was not executed to admit the filiation of Jose K. Fernandez with Rodolfo V. Fernandez, the herein appellant. The public document contemplated in Article 172 of the Family Code refer to the written admission of filiation embodied in a public document purposely executed as an admission of filiation and not as obtaining in this case wherein the public document was executed as an application for the recognition of rights to back pay under Republic Act No. 897. Section 23, Rule 132 of the Revised Rules on Evidence provides: Sec. 32. Public documents as evidence Documents consisting of entries in public records made in the performance of a duty by a public officer are prima facie evidence of the facts therein stated. All other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter. The rule is not absolute in the sense that the contents of a public document are conclusive evidence against the contracting parties as to the truthfulness of the statements made therein. They constitute only prima facie evidence of the facts which give rise to their execution and of the date of the latter. Thus, a baptismal certificate issued by a Spanish priest under the Spanish regime constitutes prima facie evidence of the facts certified to by the parish priest from his own knowledge such as the administration of the sacrament on the day and in the place and manner set forth in the certificate; but it does not constitute proof of the statements made therein concerning the parentage of the person baptized (Francisco, Evidence, 1994 ed., p. 516, citing Garcia vs. Gajul, 53 Phil. 642; Adriano vs. de Jesus, 23 Phil. 350; Buan vs. Arquiza, 5 Phil. 193; Siguion vs. Siguion, 8 Phil. 7). Public documents are perfect evidence of the fact which give rise to their execution and of the date of the latter if the act which the officer witnessed and certified to or the date written by him are not shown to be false; but they are not conclusive evidence with respect to the truthfulness of the statements made therein by the interested parties (Martin, Rules of Court in the Philippines with Note and Comments, vol. 4, p. 577). Corollarily, the Application for Recognition of Back Pay Rights Under Act No. 897 is only a proof that Jose K. Fernandez filed said

application on June 5, 1954 in Dagupan City but it does not prove the veracity of the declaration and statement contained in the said application that concern the relationship of the applicant with herein appellant. In like manner, it is not a conclusive proof of the filiation of appellant with his alleged father, Jose K. Fernandez the contents being, only prima facie evidence of the facts stated therein. Additionally, appellant claims that he enjoyed and possessed the status of being a legitimate child of the spouses openly and continuously until they died (Rollo, p. 42; Appellants Brief). Open and continuous possession of the status of a legitimate child is meant the enjoyment by the child of the position and privileges usually attached to the status of a legitimate child such as bearing the paternal surname, treatment by the parents and family of the child as legitimate, constant attendance to the childs support and education, and giving the child the reputation of being a child of his parents (Sempio-Diy, The Family Code of the Philippines, pp. 245-246). However, it must be noted that, as was held in Quismundo vs. WCC, 132 SCRA 590, possession of status of a child does not in itself constitute an acknowledgment; it is only a ground for a child to compel recognition by his assumed parent. Lastly, to substantiate his claim of being a legitimate child appellant presented a baptismal certificate issued by Fr. Rene Mendoza of the St. John Metropolitan Cathedral of Dagupan City on August 10, 1989 stating therein that appellant is a child of the late spouses having been born on November 15, 1934 and baptized on November 24, 1934 (Exh. "1 Exhibits for the Defendants). As stated, while baptismal certificates may be considered public documents, they are evidence only to prove the administration of the sacraments on the dates therein specified, but not the veracity of the statements or declarations made therein with respect to his kinsfolk (Reyes vs.Court of Appeals, 135 SCRA 439). It may be argued that a baptismal certificate is one of the other means allowed by the Rules of Court and special laws of proving filiation but in this case, the authenticity of the baptismal certificate was doubtful when Fr. Raymundo Q. de Guzman of St. John the Evangelist Parish of Lingayen-Dagupan, Dagupan City issued a certification on October 16, 1995 attesting that the records of baptism on June 7, 1930 to August 8, 1936 were all damaged (Records, p. 148, Exh. G). Neither the family portrait offered in evidence establishes a sufficient proof of filiation Pictures do not constitute proof of filiation (Reyes vs. Court of Appeals) (supra). In fine, the evidence presented by appellant did not acquire evidentiary weight to prove his

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filiation. Consequently the Extra-Judicial Partition dated August 31, 1989 executed by appellant Rodolfo Fernandez and Generosa de Venecia is null and void. Considering the foregoing findings, petitioner Rodolfo is not a child by nature of the spouses Fernandez and not a legal heir of Dr. Jose Fernandez , thus the subject deed of extra-judicial settlement of the estate of Dr. Jose Fernandez between Generosa vda. de Fernandez and Rodolfo is null and void insofar as Rodolfo is concerned[13] pursuant to Art.1105 of the New Civil Code which states: A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to such person. Petitioners next contend that respondents admitted that the property in question was the conjugal property of the late spouses Dr. Jose Fernandez and Generosa de Venecia, thus when Dr. Jose Fernandez died intestate in 1982, his estate consisted solely of pro indiviso of the conjugal property and the other half belonged to his wife Generosa de Venecia; that granting Dr. Jose Fernandez was only survived by his wife, the respondents nephews and nieces of Dr. Jose are entitled to inherit the share of the decedents estate while the share of the conjugal property will still belong to Generosa as the widow of Dr. Jose Fernandez, hence the trial courts order reconveying the possession of the subject lot and building to respondents was contrary to the admitted facts and law since respondents are not related by consanguinity to Generosa vda de Fernandez. We agree. Article 1001 of the Civil Code provides: Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one half of the inheritance and the brothers and sisters or their children to the other half. Generosa was the widow of Dr. Jose Fernandez and as provided in the abovequoted Article 1001, she is entitled to the of the inheritance and the respondents to the other . In effect, pro indiviso is the share of Generosa as the surviving spouse, i.e., as her share of the conjugal property estate and of the remaining as share as heir from her husbands estate. Thus, we find well taken the petitioners assertion that the annulment of the extra-judicial partition between Generosa and petitioner Rodolfo does not necessarily result in

respondents having exclusive right to the conjugal property, as erroneously found by the respondent court. Generosa, during her lifetime, had the right to enjoy and dispose of her property without other limitations than those established by law,[14] which right she exercised by executing a deed of sale in favor of petitioner Eddie Fernandez. Petitioners assails respondents right, not being heirs of Generosa, to question the validity of the deed of sale since the action for the annulment of contracts may only be instituted by all who are thereby obliged principally or subsidiarily.[15] We disagree. As a rule, a contract cannot be assailed by one who is not a party obliged principally or subsidiarily under a contract. However, when a contract prejudices the rights of a third person, he may exercise an action for nullity of the contract if he is prejudiced in his rights with respect to one of the contracting parties, and can show detriment which would positively result to him from the contract in which he had no intervention.[16] As we have discussed above, respondents are entitled to the of the entire conjugal property, ie., lot and building; however considering that widow Generosa, during her lifetime , sold the entire building to petitioner Eddie Fernandez, respondents had been deprived of their share therein, thus the deed of sale was prejudicial to the interest of respondents as regards their share in the building. Respondents therefore, have a cause of action to seek the annulment of said deed of sale. Petitioners further allege that the respondent court erred in declaring null and void the deed of sale executed between Generosa and petitioner Eddie Fernandez concluding that the same was simulated or false and in affirming the trial courts findings that the deed was prepared and executed under abnormal, unusual and irregular circumstances without however, particularly stating the circumstances. We agree. Respondents allege that the deed of sale was fictitious and simulated because there was no consideration for the sale. However, this assertion was controverted by vendee petitioner Eddie Fernandez declaration, that the money he paid for the sale came from his savings as overseas contract worker in Saudi Arabia from 19821989 which respondents failed to controvert by presenting evidence to the contrary. The presumption that a contract has sufficient consideration cannot be overthrown by a mere assertion that it has no consideration.[17] Under Art. 1354 of the Civil Code, consideration is presumed unless the contrary is proven.

Respondents also claim that the signature appearing in the deed of sale was not that of Generosa because she was already bedridden with both legs amputated before she died. Forgery cannot be presumed; it must be proved by clear, positive and convincing evidence[18] and whoever alleges it has the burden of proving the same;[19] a burden respondents failed to discharge. The respondents had not presented any convincing proof to override the evidentiary value of the duly notarized deed of sale. A notarial document is evidence of the facts in the clear unequivocal manner therein expressed. It has in its favor the presumption of regularity. To contradict all these, there must be evidence that is clear, convincing and more than merely preponderant.[20] We note however, that Generosa sold the entire 2 storey building to petitioner Eddie Fernandez, i.e. she did not only sell her undivided share in the building but also the share of the respondents. We rule, that such a sale of the entire building without the consent of the respondents is not null and void as only the rights of the co-owner seller are transferred, thereby making the buyer, petitioner Eddie , a co-owner of the share of the building together with the respondents who owned the share therein.[21] Finally, anent the issue of actual and moral damages and attorneys fees awarded by the trial court, we find them to be bereft of factual basis. A party is entitled to an adequate compensation for such pecuniary loss actually suffered by him as he has duly proven.[22] Such damages, to be recoverable, must not only be capable of proof, but must actually be proved with a reasonable degree of certainty.[23] Courts cannot simply rely on speculation, conjecture or guesswork in determining the fact and amount of damages.[24] The testimony of respondent Romeo Fernandez that he suffered around P100,000 actual damages was not supported by any documentary or other admissible evidence. We also agree with the petitioners that the respondent court should not have awarded moral damages in the amount of P100,000 since they also failed to show proof of moral suffering, mental anguish, serious anxiety, besmirched reputation, wounded feelings and social humiliation. Attorneys fees should likewise be deleted for lack of factual basis and legal justification. Both the lower courts did not cite specific factual basis to justify the award of attorneys fees, which is in violation of the proscription against the imposition of a penalty on the right to litigate.[25] WHEREFORE, premises considered, the assailed judgment is hereby Affirmed with Modification, as follows:

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1. Respondents as legitimate heirs of Dr. Jose Fernandez are entitled to the share of the conjugal lot and building of the deceased spouses Jose and Generosa Fernandez who died childless and intestate; 2. The deed of extra-judicial partition is nullified insofar as the share of petitioner Rodolfo in the conjugal lot is concerned and the title issued pursuant thereto in the name of Rodolfo Fernandez; 3. Considering that the deed of sale is valid insofar as the share of Generosa sold to petitioner Eddie Fernandez, TCT No. 54693 is cancelled and a new title should be issued in the names of petitioner Eddie Fernandez and respondents as co-owners of the and shares respectively in the conjugal building. 4. The awards of actual and moral damages and attorneys fees are deleted. SO ORDERED. Melo, (Chairman), Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur. SECOND DIVISION [G.R. No. 132305. December 4, 2001] IDA C. LABAGALA, petitioner, vs. NICOLASA T. SANTIAGO, AMANDA T. SANTIAGO and HON. COURT OF APPEALS, respondents. DECISION QUISUMBING, J.: This petition for review on certiorari seeks to annul the decision dated March 4, 1997,[1] of the Court of Appeals in CA-G.R. CV No. 32817, which reversed and set aside the judgment dated October 17, 1990,[2]of the Regional Trial Court of Manila, Branch 54, in Civil Case No. 87-41515, finding herein petitioner to be the owner of 1/3 pro indiviso share in a parcel of land. The pertinent facts of the case, as borne by the records, are as follows: Jose T. Santiago owned a parcel of land covered by TCT No. 64729, located in Rizal Avenue Extension, Sta. Cruz, Manila. Alleging that Jose had fraudulently registered it in his name alone, his sisters Nicolasa and Amanda (now respondents herein), sued Jose for recovery of 2/3 share of the property.[3] On April 20, 1981, the trial court in that case decided in favor of the sisters, recognizing their right of ownership over portions of the property covered by TCT No. 64729. The Register of

Deeds of Manila was required to include the names of Nicolasa and Amanda in the certificate of title to said property.[4] Jose died intestate on February 6, 1984. On August 5, 1987, respondents filed a complaint for recovery of title, ownership, and possession against herein petitioner, Ida C. Labagala, before the Regional Trial Court of Manila, to recover from her the 1/3 portion of said property pertaining to Jose but which came into petitioners sole possession upon Joses death. Respondents alleged that Joses share in the property belongs to them by operation of law, because they are the only legal heirs of their brother, who died intestate and without issue. They claimed that the purported sale of the property made by their brother to petitioner sometime in March 1979[5] was executed through petitioners machinations and with malicious intent, to enable her to secure the corresponding transfer certificate of title (TCT No. 172334[6]) in petitioners name alone.[7] Respondents insisted that the deed of sale was a forgery. The deed showed that Jose affixed his thumbmark thereon but respondents averred that, having been able to graduate from college, Jose never put his thumbmark on documents he executed but always signed his name in full. They claimed that Jose could not have sold the property belonging to his poor and unschooled sisters who sacrificed for his studies and personal welfare.[8] Respondents also pointed out that it is highly improbable for petitioner to have paid the supposed consideration of P150,000 for the sale of the subject property because petitioner was unemployed and without any visible means of livelihood at the time of the alleged sale. They also stressed that it was quite unusual and questionable that petitioner registered the deed of sale only on January 26, 1987, or almost eight years after the execution of the sale.[9] On the other hand, petitioner claimed that her true name is not Ida C. Labagala as claimed by respondent but Ida C. Santiago. She claimed not to know any person by the name of Ida C. Labagala. She claimed to be the daughter of Jose and thus entitled to his share in the subject property. She maintained that she had always stayed on the property, ever since she was a child. She argued that the purported sale of the property was in fact a donation to her, and that nothing could have precluded Jose from putting his thumbmark on the deed of sale instead of his signature. She pointed out that during his lifetime, Jose never acknowledged respondents claim over the property such that respondents had to sue to claim portions thereof. She lamented that

respondents had to disclaim her in their desire to obtain ownership of the whole property. Petitioner revealed that respondents had in 1985 filed two ejectment cases against her and other occupants of the property. The first was decided in her and the other defendants favor, while the second was dismissed. Yet respondents persisted and resorted to the present action. Petitioner recognized respondents ownership of 2/3 of the property as decreed by the RTC. But she averred that she caused the issuance of a title in her name alone, allegedly after respondents refused to take steps that would prevent the property from being sold by public auction for their failure to pay realty taxes thereon. She added that with a title issued in her name she could avail of a realty tax amnesty. On October 17, 1990, the trial court ruled in favor of petitioner, decreeing thus: WHEREFORE, judgment is hereby rendered recognizing the plaintiffs [herein respondents] as being entitled to the ownership and possession each of one-third (1/3) pro indiviso share of the property originally covered by Transfer Certificate of Title No. 64729, in the name of Jose T. Santiago and presently covered by Transfer Certificate of Title No. 172334, in the name of herein defendant [herein petitioner] and which is located at No. 3075-A Rizal Avenue Extension, Sta. Cruz, Manila, as per complaint, and the adjudication to plaintiffs per decision in Civil Case No. 56226 of this Court, Branch VI, and the remaining onethird (1/3) pro indiviso share adjudicated in said decision to defendant Jose T. Santiago in said case, is hereby adjudged and adjudicated to herein defendant as owner and entitled to possession of said share. The Court does not see fit to adjudge damages, attorneys fees and costs. Upon finality of this judgment, Transfer Certificate of Title No. 172334 is ordered cancelled and a new title issued in the names of the two (2) plaintiffs and the defendant as owners in equal shares, and the Register of Deeds of Manila is so directed to effect the same upon payment of the proper fees by the parties herein. SO ORDERED.[10] According to the trial court, while there was indeed no consideration for the deed of sale executed by Jose in favor of petitioner, said deed constitutes a valid donation. Even if it were not, petitioner would still be entitled to Joses 1/3 portion of the property as Joses daughter. The trial court ruled that the following evidence shows petitioner to be the daughter of

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Jose: (1) the decisions in the two ejectment cases filed by respondents which stated that petitioner is Joses daughter, and (2) Joses income tax return which listed petitioner as his daughter. It further said that respondents knew of petitioners existence and her being the daughter of Jose, per records of the earlier ejectment cases they filed against petitioner. According to the court, respondents were not candid with the court in refusing to recognize petitioner as Ida C. Santiago and insisting that she was Ida C. Labagala, thus affecting their credibility. Respondents appealed to the Court of Appeals, which reversed the decision of the trial court. WHEREFORE, the appealed decision is REVERSED and one is entered declaring the appellants Nicolasa and Amanda Santiago the co-owners in equal shares of the onethird (1/3) pro indiviso share of the late Jose Santiago in the land and building covered by TCT No. 172334. Accordingly, the Register of Deeds of Manila is directed to cancel said title and issue in its place a new one reflecting this decision. SO ORDERED. Apart from respondents testimonies, the appellate court noted that the birth certificate of Ida Labagala presented by respondents showed that Ida was born of different parents, not Jose and his wife. It also took into account the statement made by Jose in Civil Case No. 56226 that he did not have any child. Hence, the present petition wherein the following issues are raised for consideration: 1. Whether or not petitioner has adduced preponderant evidence to prove that she is the daughter of the late Jose T. Santiago, and 2. Whether or not respondents could still impugn the filiation of the petitioner as the daughter of the late Jose T. Santiago. Petitioner contends that the trial court was correct in ruling that she had adduced sufficient evidence to prove her filiation by Jose Santiago, making her his sole heir and thus entitled to inherit his 1/3 portion. She points out that respondents had, before the filing of the instant case, previously considered[11] her as the daughter of Jose who, during his lifetime, openly regarded her as his legitimate daughter. She asserts that her identification as Joses daughter in his ITR outweighs the strange answers he gave when he testified in Civil Case No. 56226.

Petitioner asserts further that respondents cannot impugn her filiation collaterally, citing the case of Sayson v. Court of Appeals[12] in which we held that (t)he legitimacy of (a) child can be impugned only in a direct action brought for that purpose, by the proper parties and within the period limited by law.[13] Petitioner also cites Article 263 of the Civil Code in support of this contention.[14] For their part, respondents contend that petitioner is not the daughter of Jose, per her birth certificate that indicate her parents as Leo Labagala and Cornelia Cabrigas, instead of Jose Santiago and Esperanza Cabrigas.[15] They argue that the provisions of Article 263 of the Civil Code do not apply to the present case since this is not an action impugning a childs legitimacy but one for recovery of title, ownership, and possession of property. The issues for resolution in this case, to our mind, are (1) whether or not respondents may impugn petitioners filiation in this action for recovery of title and possession; and (2) whether or not petitioner is entitled to Joses 1/3 portion of the property he co-owned with respondents, through succession, sale, or donation. On the first issue, we find petitioners reliance on Article 263 of the Civil Code to be misplaced. Said article provides: Art. 263. The action to impugn the legitimacy of the child shall be brought within one year from the recording of the birth in the Civil Register, if the husband should be in the same place, or in a proper case, any of his heirs. If he or his heirs are absent, the period shall be eighteen months if they should reside in the Philippines; and two years if abroad. If the birth of the child has been concealed, the term shall be counted from the discovery of the fraud. This article should be read in conjunction with the other articles in the same chapter on paternity and filiation in the Civil Code. A careful reading of said chapter would reveal that it contemplates situations where a doubt exists that a child is indeed a mans child by his wife, and the husband (or, in proper cases, his heirs) denies the childs filiation. It does not refer to situations where a child is alleged not to be the child at all of a particular couple.[16] Article 263 refers to an action to impugn the legitimacy of a child, to assert and prove that a person is not a mans child by his wife. However, the present case is not one impugning petitioners legitimacy. Respondents are asserting not merely that

petitioner is not a legitimate child of Jose, but that she is not a child of Jose at all.[17] Moreover, the present action is one for recovery of title and possession, and thus outside the scope of Article 263 on prescriptive periods. Petitioners reliance on Sayson is likewise improper. The factual milieu present in Sayson does not obtain in the instant case. What was being challenged by petitioners in Sayson was (1) the validity of the adoption of Delia and Edmundo by the deceased Teodoro and Isabel Sayson, and (2) the legitimate status of Doribel Sayson. While asserting that Delia and Edmundo could not have been validly adopted since Doribel had already been born to the Sayson couple at the time, petitioners at the same time made the conflicting claim that Doribel was not the child of the couple. The Court ruled in that case that it was too late to question the decree of adoption that became final years before. Besides, such a challenge to the validity of the adoption cannot be made collaterally but in a direct proceeding.[18] In this case, respondents are not assailing petitioners legitimate status but are, instead, asserting that she is not at all their brothers child. The birth certificate presented by respondents support this allegation. We agree with the Court of Appeals that:: The Certificate of Record of Birth (Exhibit H)[19] plainly states that Ida was the child of the spouses Leon Labagala and [Cornelia] Cabrigas. This document states that it was Leon Labagala who made the report to the Local Civil Registrar and therefore the supplier of the entries in said Certificate. Therefore, this certificate is proof of the filiation of Ida. Appellee however denies that Exhibit H is her Birth Certificate. She insists that she is not Ida Labagala but Ida Santiago. If Exhibit H is not her birth certificate, then where is hers? She did not present any though it would have been the easiest thing to do considering that according to her baptismal certificate she was born in Manila in 1969. This court rejects such denials and holds that Exhibit H is the certificate of the record of birth of appellee Ida Against such evidence, the appellee Ida could only present her testimony and a baptismal certificate (Exhibit 12) stating that appellees parents were Jose Santiago and Esperanza Cabrigas. But then, a decisional rule in evidence states that a baptismal certificate is not a proof of the parentage of the baptized person. This document can only prove the identity of the baptized, the date and place of her baptism, the identities of the baptismal sponsors and

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the priest who administered the sacrament -- nothing more.[20] (Citations omitted.) At the pre-trial conducted on August 11, 1988, petitioners counsel admitted that petitioner did not have a birth certificate indicating that she is Ida Santiago, though she had been using this name all her life.[21] Petitioner opted not to present her birth certificate to prove her relationship with Jose and instead offered in evidence her baptismal certificate.[22] However, as we held in Heirs of Pedro Cabais v. Court of Appeals: a baptismal certificate is evidence only to prove the administration of the sacrament on the dates therein specified, but not the veracity of the declarations therein stated with respect to *a persons+ kinsfolk. The same is conclusive only of the baptism administered, according to the rites of the Catholic Church, by the priest who baptized subject child, but it does not prove the veracity of the declarations and statements contained in the certificate concerning the relationship of the person baptized.[23] A baptismal certificate, a private document, is not conclusive proof of filiation.[24] More so are the entries made in an income tax return, which only shows that income tax has been paid and the amount thereof.[25] We note that the trial court had asked petitioner to secure a copy of her birth certificate but petitioner, without advancing any reason therefor, failed to do so. Neither did petitioner obtain a certification that no record of her birth could be found in the civil registry, if such were the case. We find petitioners silence concerning the absence of her birth certificate telling. It raises doubt as to the existence of a birth certificate that would show petitioner to be the daughter of Jose Santiago and Esperanza Cabrigas. Her failure to show her birth certificate would raise the presumption that if such evidence were presented, it would be adverse to her claim. Petitioners counsel argued that petitioner had been using Santiago all her life. However, use of a family name certainly does not establish pedigree. Further, we note that petitioner, who claims to be Ida Santiago, has the same birthdate as Ida Labagala.[26] The similarity is too uncanny to be a mere coincidence. During her testimony before the trial court, petitioner denied knowing Cornelia Cabrigas, who was listed as the mother in the birth certificate of Ida Labagala. In her

petition before this Court, however, she stated that Cornelia is the sister of her mother, Esperanza. It appears that petitioner made conflicting statements that affect her credibility and could cast a long shadow of doubt on her claims of filiation. Thus, we are constrained to agree with the factual finding of the Court of Appeals that petitioner is in reality the child of Leon Labagala and Cornelia Cabrigas, and contrary to her averment, not of Jose Santiago and Esperanza Cabrigas. Not being a child of Jose, it follows that petitioner can not inherit from him through intestate succession. It now remains to be seen whether the property in dispute was validly transferred to petitioner through sale or donation. On the validity of the purported deed of sale, however, we agree with the Court of Appeals that: This deed is shot through and through with so many intrinsic defects that a reasonable mind is inevitably led to the conclusion that it is fake. The intrinsic defects are extractable from the following questions: a) If Jose Santiago intended to donate the properties in question to Ida, what was the big idea of hiding the nature of the contract in the faade of the sale? b) If the deed is a genuine document, how could it have happened that Jose Santiago who was of course fully aware that he owned only 1/3 pro indiviso of the properties covered by his title sold or donated the whole properties to Ida? c) Why in heavens name did Jose Santiago, a college graduate, who always signed his name in documents requiring his signature (citation omitted) [affix] his thumbmark on this deed of sale? d) If Ida was [the] child of Jose Santiago, what was the sense of the latter donating his properties to her when she would inherit them anyway upon his death? e) Why did Jose Santiago affix his thumbmark to a deed which falsely stated that: he was single (for he was earlier married to Esperanza Cabrigas); Ida was of legal age (for [s]he was then just 15 years old); and the subject properties were free from liens and encumbrances (for Entry No. 27261, Notice of Adverse Claim and Entry No. 6388, Notice of Lis Pendens were already annotated in the title of said properties). If the deed was executed in 1979, how come it surfaced only in 1984 after the death of Jose Santiago and of all people, the one in possession was the baptismal sponsor of Ida?[27]

Clearly, there is no valid sale in this case. Jose did not have the right to transfer ownership of the entire property to petitioner since 2/3 thereof belonged to his sisters.[28] Petitioner could not have given her consent to the contract, being a minor at the time.[29] Consent of the contracting parties is among the essential requisites of a contract,[30] including one of sale, absent which there can be no valid contract. Moreover, petitioner admittedly did not pay any centavo for the property,[31] which makes the sale void. Article 1471 of the Civil Code provides: Art. 1471. If the price is simulated, the sale is void, but the act may be shown to have been in reality a donation, or some other act or contract. Neither may the purported deed of sale be a valid deed of donation. Again, as explained by the Court of Appeals: Even assuming that the deed is genuine, it cannot be a valid donation. It lacks the acceptance of the donee required by Art. 725 of the Civil Code. Being a minor in 1979, the acceptance of the donation should have been made by her father, Leon Labagala or [her] mother Cornelia Cabrigas or her legal representative pursuant to Art. 741 of the same Code. No one of those mentioned in the law - in fact no one at all accepted the donation for Ida.[32] In sum, we find no reversible error attributable to the assailed decision of the Court of Appeals, hence it must be upheld. WHEREFORE, the petition is DENIED, and the decision of the Court of Appeals in CA-G.R. CV No. 32817 is AFFIRMED. Costs against petitioner. SO ORDERED. Bellosillo, (Chairman), Mendoza, and De Leon, Jr., JJ., concur. Buena J., on official leave. THIRD DIVISION [G.R. No. 146737. December 10, 2001] In the matter of the intestate estate of the late JUAN "JHONNY" LOCSIN, SR., LUCY A. SOLINAP (Daughter of the late Maria Locsin Araneta), the successors of the late LOURDES C. LOCSIN, MANUEL C. LOCSIN, ESTER LOCSIN JARANTILLA and the intestate estate of the late JOSE C. LOCSIN, JR.,petitioners, vs. JUAN C. LOCSIN, JR., respondent.

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DECISION SANDOVAL-GUTIERREZ, J.: A Certificate of Live Birth duly recorded in the Local Civil Registry, a copy of which is transmitted to the Civil Registry General pursuant to the Civil Registry Law, is prima facie evidence of the facts therein stated. However, if there are material discrepancies between them, the one entered in the Civil Registry General prevails. This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, seeking the reversal of the September 13, 2000 Decision of the Court of Appeals in CAG.R. CV No. 57708 which affirmed in toto the September 13, 1996 order of the Regional Trial Court, Branch 30, of Iloilo City in Special Proceeding No. 4742. The September 13 order of the trial court appointed Juan E. Locsin, Jr., respondent, as the sole administrator of the Intestate Estate of the late Juan "Jhonny" Locsin, Sr. Records show that on November 11, 1991, or eleven (11) months after Juan "Jhonny" Locsin, Sr.[1] died intestate on December 11, 1990, respondent Juan E. Locsin, Jr. filed with the Regional Trial Court of Iloilo City, Branch 30, a "Petition for Letters of Administration" (docketed as Special Proceeding No. 4742) praying that he be appointed Administrator of the Intestate Estate of the deceased. He alleged, among others, (a) that he is an acknowledged natural child of the late Juan C. Locsin; (b) that during his lifetime, the deceased owned personal properties which include undetermined savings, current and time deposits with various banks, and 1/6 portion of the undivided mass of real properties owned by him and his siblings, namely: Jose Locsin, Jr., Manuel Locsin, Maria Locsin Yulo, Lourdes Locsin and Ester Locsin; and (c) that he is the only surviving legal heir of the decedent. On November 13, 1991, the trial court issued an order setting the petition for hearing on January 13, 1992, which order was duly published,[2] thereby giving notice to all persons who may have opposition to the said petition. Before the scheduled hearing, or on January 10, 1992, the heirs of Jose Locsin, Jr., the heirs of Maria Locsin, Manuel Locsin and Ester Jarantilla, claiming to be the lawful heirs of the deceased, filed an opposition to respondents petition for letters of administration. They averred that respondent is not a child or an acknowledged natural child of the late Juan C. Locsin, who during his lifetime, never affixed "Sr." in his name .

On January 5, 1993, another opposition to the petition was filed by Lucy Salinop (sole heir of the late Maria Locsin Vda. De Araneta, sister of the deceased), Manuel Locsin and the successors of the late Lourdes C. Locsin alleging that respondent's claim as a natural child is barred by prescription or the statute of limitations. The Intestate Estate of the late Jose Locsin, Jr. (brother of the deceased) also entered its appearance in the estate proceedings, joining the earlier oppositors. This was followed by an appearance and opposition dated January 26, 1993 of Ester Locsin Jarantilla (another sister of Juan C. Locsin), likewise stating that there is no filial relationship between herein respondent and the deceased. Thereupon, the trial court conducted hearings. To support his claim that he is an acknowledged natural child of the deceased and, therefore, entitled to be appointed administrator of the intestate estate, respondent submitted a machine copy (marked as Exhibit "D")[3] of his Certificate of Live Birth No. 477 found in the bound volume of birth records in the Office of the Local Civil Registrar of Iloilo City. Exhibit "D" contains the information that respondent's father is Juan C. Locsin, Sr. and that he was the informant of the facts stated therein, as evidenced by his signatures (Exhibit "D-2" and "D-3"). To prove the existence and authenticity of Certificate of Live Birth No. 477 from which Exhibit "D" was machine copied, respondent presented Rosita J. Vencer, the Local Civil Registrar of Iloilo City. She produced and identified in court the bound volume of 1957 records of birth where the alleged original of Certificate of Live Birth No. 477 is included. Respondent also offered in evidence a photograph (Exhibit "C")[4] showing him and his mother, Amparo Escamilla, in front of a coffin bearing Juan C. Locsin's dead body. The photograph, respondent claims, shows that he and his mother have been recognized as family members of the deceased. In their oppositions, petitioners claimed that Certificate of Live Birth No. 477 (Exhibit "D") is spurious. They submitted a certified true copy of Certificate of Live Birth No. 477 found in the Civil Registrar General, Metro Manila, marked as Exhibit "8",[5] indicating that the birth of respondent was reported by his mother, Amparo Escamilla, and that the same does not contain the signature of the late Juan C. Locsin. They observed as anomalous the fact that while respondent was born on October 22, 1956 and his birth was recorded on January 30, 1957,

however, his Certificate of Live Birth No. 447 (Exhibit "D") was recorded on a December 1, 1958 revised form. Upon the other hand, Exhibit "8" appears on a July, 1956 form, already used before respondent's birth. This scenario clearly suggests that Exhibit "D" was falsified. Petitioners presented as witness, Col. Pedro L. Elvas, a handwriting expert. He testified that the signatures of Juan C. Locsin and Emilio G. Tomesa (then Civil Registrar of Iloilo City) appearing in Certificate of Live Birth No. 477 (Exhibit "D") are forgeries. He thus concluded that the said Certificate is a spurious document surreptitiously inserted into the bound volume of birth records of the Local Civil Registrar of Iloilo City. After hearing, th trial court, finding that Certificate of Live Birth No. 477 (Exhibit "D") and the photograph (Exhibit "C") are sufficient proofs of respondent's illegitimate filiation with the deceased, issued on September 13, 1996 an order, the dispositive portion of which reads: WHEREFORE, premises considered, this PETITION is hereby GRANTED and the petitioner Juan E. Locsin, Jr. is hereby appointed Administrator of the Intestate Estate of the late Juan Johnny Locsin, Sr. "Let Letters of Administration be issued in his favor, upon his filing of a bond in the sum of FIFTY THOUSAND PESOS (P50,000.00) to be approved by this Court. "SO ORDERED.[6] On appeal, the Court of Appeals rendered the challenged Decision affirming in toto the order of the trial court dated September 13, 1996. Petitioners moved for a reconsideration, while respondent filed a motion for execution pending appeal. Both motions were, however, denied by the Appellate Court in its Resolution dated January 10, 2001. Hence, the instant petition for review on certiorari by petitioners. The focal issue for our resolution is which of the two documents - Certificate of Live Birth No. 477 (Exhibit "D") and Certificate of Live Birth No. 477 (Exhibit "8") is genuine. The rule that factual findings of the trial court, adopted and confirmed by the Court of Appeals, are final and conclusive and may not be reviewed on appeal[7] does not apply when there appears in the record of the case some facts or circumstances of weight and influence which have been overlooked, or the significance of which have been misinterpreted, that if considered, would affect the result of the

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case.[8] Here, the trial court failed to appreciate facts and circumstances that would have altered its conclusion. Section 6, Rule 78 of the Revised Rules of Court lays down the persons preferred who are entitled to the issuance of letters of administration, thus: Section 6. When and to whom letters of administration granted. If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted: (a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve; (b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of a person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve; (c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select. (Emphasis ours) Upon the other hand, Section 2 of Rule 79 provides that a petition for letters of administration must be filed by an interested person, thus: Sec.2 Contents of petition for letters of administration. A petition for letters of administration must be filed by an interested person and must show, so far as known to the petitioner: (a) The jurisdictional facts; x x x" (Emphasis ours) An "interested party", in estate proceedings, is one who would be benefited in the estate, such as an heir, or one who has a claim against the estate, such as a creditor.[9] Also, in estate proceedings, the phrase "next of kin" refers to those whose relationship with the decedent is such that they are entitled to share in the estate as distributees.[10] In Gabriel v. Court of Appeals,[11] this Court held that in the appointment of the administrator of the estate of a deceased person, the principal

consideration reckoned with is the interest in said estate of the one to be appointed administrator. Here, undisputed is the fact that the deceased, Juan C. Locsin, was not survived by a spouse. In his petition for issuance of letters of administration, respondent alleged that he is an acknowledged natural son of the deceased, implying that he is an interested person in the estate and is considered as next of kin. But has respondent established that he is an acknowledged natural son of the deceased? On this point, this Court, through Mr. Justice Jose C. Vitug, held: "The filiation of illegitimate children, like legitimate children, is established by (1) the record of birth appearing in the civil register or a final judgement; or (2) an admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence thereof, filiation shall be proved by (1) the open and continuous possession of the status of a legitimate child; or (2) any other means allowed by the Rules of Court and special laws. The due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing is, in itself, a consummated act of acknowledgement of the child, and no further court action is required. In fact, any authentic writing is treated not just a ground for compulsory recognition; it is in itself a voluntary recognition that does not require a separate action for judicial approval. Where, instead, a claim for recognition is predicated on other evidence merely tending to prove paternity, i.e., outside of a record of birth, a will, a statement before a court of record or an authentic writing, judicial action within the applicable statute of limitations is essential in order to establish the child's acknowledgment."[12] (Emphasis ours) Here, respondent, in order to establish his filiation with the deceased, presented to the trial court his Certificate of Live Birth No. 477 (Exhibit "D") and a photograph (Exhibit "C") taken during the burial of the deceased. Regarding the genuineness and probative value of Exhibit "D", the trial court made the following findings, affirmed by the Appellate Court: "It was duly established in Court that the Certificate of Live Birth No. 477 in the name of Juan E. Locsin, Jr., the original having been testified to by Rosita Vencer, exists in the files of the Local Civil Registrar of Iloilo. Petitioner since birth enjoyed the open and continuous status of an acknowledged natural child of Juan C.

Locsin, Sr., he together with his mother was summoned to attend to the burial as evidenced by a picture of relatives facing the coffin of the deceased with petitioner and his mother in the picture. x x x. It was duly proven at the trial that the standard signatures presented by oppositors were not in public document and may also be called questioned document whereas in the certificate of live birth No. 477, the signature of Juan C. Locsin, Sr. was the original or primary evidence. The anomalous and suspicious characteristic of the bound volume where the certificate of live birth as alleged by oppositors was found was testified to and explained by Rosita Vencer of the Office of the Local Civil Registrar that they run out of forms in 1957 and requisitioned forms. However, the forms sent to them was the 1958 revised form and that she said their office usually paste the pages of the bound volume if destroyed. All the doubts regarding the authenticity and genuineness of the signatures of Juan C. Locsin, Sr. and Emilio Tomesa, and the suspicious circumstances of the bound volume were erased due to the explanation of Rosita Vencer." This Court cannot subscribe to the above findings. Pursuant to Section 12 of Act 3753 (An Act to Establish a Civil Register), the records of births from all cities and municipalities in the Philippines are officially and regularly forwarded to the Civil Registrar General in Metro Manila by the Local Civil Registrars. Since the records of births cover several decades and come from all parts of the country, to merely access them in the Civil Registry General requires expertise. To locate one single birth record from the mass, a regular employee, if not more, has to be engaged. It is highly unlikely that any of these employees in Metro Manila would have reason to falsify a particular 1957 birth record originating from the Local Civil Registry of Iloilo City. With respect to Local Civil Registries, access thereto by interested parties is obviously easier. Thus, in proving the authenticity of Exhibit "D," more convincing evidence than those considered by the trial court should have been presented by respondent. The trial court held that the doubts respecting the genuine nature of Exhibit "D" are dispelled by the testimony of Rosita Vencer, Local Civil Registrar of Iloilo City. The event about which she testified on March 7, 1994 was the record of respondent's birth which took place on October 22, 1956, on 37 or 38 years ago. The Local Civil Registrar of Iloilo City at that time was Emilio G. Tomesa. Necessarily, Vencer's knowledge

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of respondent's birth record allegedly made and entered in the Local Civil Registry in January, 1957 was based merely on her general impressions of the existing records in that Office. When entries in the Certificate of Live Birth recorded in the Local Civil Registry vary from those appearing in the copy transmitted to the Civil Registry General, pursuant to the Civil Registry Law, the variance has to be clarified in more persuasive and rational manner. In this regard, we find Vencer's explanation not convincing. Respondent's Certificate of Live Birth No. 477 (Exhibit "D") was recorded in a December 1, 1958 revised form. Asked how a 1958 form could be used in 1957 when respondent's birth was recorded, Vencer answered that "xxx during that time, maybe the forms in 1956 were already exhausted so the former Civil Registrar had requested for a new form and they sent us the 1958 Revised Form."[13] The answer is a "maybe", a mere supposition of an event. It does not satisfactorily explain how a Revised Form dated December 1, 1958 could have been used on January 30, 1957 or almost (2) years earlier. Upon the other hand, Exhibit "8" of the petitioners found in the Civil Registrar General in Metro Manila is on Municipal Form No. 102, revised in July, 1956. We find no irregularity here. Indeed, it is logical to assume that the 1956 forms would continue to be used several years thereafter. But for a 1958 form to be used in 1957 is unlikely. There are other indications of irregularity relative to Exhibit "D." The back cover of the 1957 bound volume in the Local Civil Registry of Iloilo is torn. Exhibit "D" is merely pasted with the bound volume, not sewn like the other entries. The documents bound into one volume are original copies. Exhibit "D" is a carbon copy of the alleged original and sticks out like a sore thumb because the entries therein are typewritten, while the records of all other certificates are handwritten. Unlike the contents of those other certificates, Exhibit "D" does not indicate important particulars, such as the alleged father's religion, race, occupation, address and business. The space which calls for an entry of the legitimacy of the child is blank. On the back page of Exhibit "D", there is a purported signature of the alleged father, but the blanks calling for the date and other details of his Residence Certificate were not filled up. When asked to explain the torn back cover of the bound volume, Vencer had no answer except to state, "I am not aware of

this because I am not a bookbinder." As to why Exhibit "D" was not sewn or bound into the volume, she explained as follows: "COURT: I will butt in. Are these instances where your employees would only paste a document like this Certificate of Live Birth? WITNESS: Yes, Your Honor, we are pasting some of the leaves just to replace the record. Sometimes we just have it pasted in the record when the leaves were taken. ATTY. TIROL: You mean to say you allow the leaves of the bound volume to be taken out? A: No sir. It is because sometimes the leaves are detached so we have to paste them."[14] (Emphasis ours) There is no explanation why out of so many certificates, this vital document, Exhibit "D", was merely pasted with the volume. Vencer's testimony suffers from infirmities. Far from explaining the anomalous circumstances surrounding Exhibit "D", she actually highlighted the suspicious circumstances surrounding its existence. The records of the instant case adequately support a finding that Exhibit "8" for the petitioners, not respondent's Exhibit "D", should have been given more faith and credence by the courts below. The Civil Registry Law requires, inter alia, the Local Civil Registrar to send copies of registrable certificates and documents presented to them for entry to the Civil Registrar General, thus: Duties of Local Civil Registrar. Local civil registrars shall (a) file registrable certificates and documents presented to them for entry; (b) compile the same monthly and prepare and send any information required of them by the CivilRegistrar; (c) issue certified transcripts or copies of any document registered upon payment of proper fees; (d) order the binding, properly classified, of all certificates or documents registered during the year; (e) send to the Civil RegistrarGeneral, during the first ten days of each month, a copy of the entries made during the preceding month, for filing; (f) index the same to facilitate search and identification in case any information is

required; and (g) administer oaths, free of charge, for civil register purposes"[15] (Emphasis ours) In light of the above provisions, a copy of the document sent by the Local Civil Registrar to the Civil Registrar General should be identical in form and in substance with the copy being kept by the latter. In the instant case, Exhibit "8", as transmitted to the Civil Registrar General is not identical with Exhibit "D" as appearing in the records of the Local Civil Registrar of Iloilo City. Such circumstance should have aroused the suspicion of both the trial court and the Court of Appeals and should have impelled them to declare Exhibit "D" a spurious document. Exhibit "8" shows that respondent's record of birth was made by his mother. In the same Exhibit "8", the signature and name of Juan C. Locsin listed as respondent's father and the entry that he and Amparo Escamilla were married in Oton, Iloilo on November 28, 1954 do not appear. In this connection, we echo this Court's pronouncement in Roces vs. Local Civil Registrar[16] that: Section 5 of Act No. 3753 and Article 280 of the Civil Code of the Philippines x x x explicitly prohibit, not only the naming of the father of the child born out of wedlock, when the birth certificate, or the recognition, is not filed or made by him, but also, the statement of any information or circumstances by which he could be identified. Accordingly, the Local Civil Registrar had no authority to make or record the paternity of an illegitimate child upon the information of a third person and the certificate of birth of an illegitimate child, when signed only by the mother of the latter, is incompetent evidence of fathership of said child. (Emphasis ours) The Roces ruling regarding illegitimate filiation is further elucidated in Fernandez vs. Court of Appeals [17] where this Court said that "a birth certificate not signed by the alleged father (who had no hand in its preparation) is not competent evidence of paternity." A birth certificate is a formidable piece of evidence prescribed by both the Civil Code and Article 172 of the Family Code for purposes of recognition and filiation. However, birth certificate offers only prima facieevidence of filiation and may be refuted by contrary evidence.[18] Its evidentiary worth cannot be sustained where there exists strong, complete and conclusive proof of its falsity or nullity. In this case, respondent's Certificate of Live Birth No. 477 entered in the records of the

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Local Civil Registry (from which Exhibit "D" was machine copied) has all the badges of nullity. Without doubt, the authentic copy on file in that office was removed and substituted with a falsified Certificate of Live Birth. At this point, it bears stressing the provision of Section 23, Rule 132 of the Revised Rules of Court that "(d)ocuments consisting of entries in public records made in the performance of a duty by a public officer areprima facie evidence of the facts therein stated." In this case, the glaring discrepancies between the two Certificates of Live Birth (Exhibits "D" and "8") have overturned the genuineness of Exhibit "D" entered in the Local Civil Registry. What is authentic is Exhibit "8" recorded in the Civil Registry General. Incidentally, respondent's photograph with his mother near the coffin of the late Juan C. Locsin cannot and will not constitute proof of filiation,[19] lest we recklessly set a very dangerous precedent that would encourage and sanction fraudulent claims. Anybody can have a picture taken while standing before a coffin with others and thereafter utilize it in claiming the estate of the deceased. Respondent Juan E. Locsin, Jr. failed to prove his filiation with the late Juan C. Locsin, Sr.. His Certificate of Live Birth No. 477 (Exhibit "D") is spurious. Indeed, respondent is not an interested person within the meaning of Section 2, Rule 79 of the Revised Rules of Court entitled to the issuance of letters of administration. WHEREFORE, the petition is hereby GRANTED. The challenged Decision and Resolution of the Court of Appeals in CAG.R. No. 57708 are REVERSED and SET ASIDE. Respondent's petition for issuance of letters of administration is ORDERED DISMISSED. SO ORDERED. Melo, (Chairman), Vitug, Panganiban, and Carpio, JJ., concur.

Code took effect cannot be impaired or taken away. The minors have up to four years from attaining majority age within which to file an action for recognition.

Statement of the Case

In an Order dated July 26, 1995, the trial court granted Ernestina Bernabes Motion for Reconsideration of the trial courts Decision and ordered the dismissal of the Complaint for recognition. Citing Article 175 of the Family Code, the RTC held that the death of the putative father had barred the action. In its Order dated October 6, 1995, the trial court added that since the putative father had not acknowledged or recognized Adrian Bernabe in writing, the action for recognition should have been filed during the lifetime of the alleged father to give him the opportunity to either affirm or deny the childs filiation.

Before us is a Petition[1] for Review on Certiorari under Rule 45 of the Rules of Court, praying for (1) the nullification of the July 7, 1999 Court of Appeals[2] (CA) Decision[3] in CA-GR CV No. 51919 and the October 14, 1999 CA Resolution[4] denying petitioners Motion for Reconsideration, as well as (2) the reinstatement of the two Orders issued by the Regional Trial Court (RTC) ofPasay City (Branch 109) concerning the same case. The dispositive portion of the assailed Decision reads as follows: WHEREFORE, premises considered, the order of the lower court dismissing Civil Case No. 94-0562 is REVERSED and SET ASIDE. Let the records of this case be remanded to the lower court for trial on the merits.[5]

Ruling of the Court of Appeals

The Facts

On the other hand, the Court of Appeals ruled that in the interest of justice, Adrian should be allowed to prove that he was the illegitimate son of Fiscal Bernabe. Because the boy was born in 1981, his rights are governed by Article 285 of the Civil Code, which allows an action for recognition to be filed within four years after the child has attained the age of majority. The subsequent enactment of the Family Code did not take away that right. Hence, this appeal.[7]

The undisputed facts are summarized by the Court of Appeals in this wise: The late Fiscal Ernesto A. Bernabe allegedly fathered a son with his secretary of twenty-three (23) years, herein plaintiff-appellant Carolina Alejo. The son was born on September 18, 1981 and was named AdrianBernabe. Fiscal Bernabe died on August 13, 1993, while his wife Rosalina died on December 3 of the same year, leaving Ernestina as the sole surviving heir. On May 16, 1994, Carolina, in behalf of Adrian, filed the aforesaid complaint praying that Adrian be declared an acknowledged illegitimate son of Fiscal Bernabe and as such he (Adrian) be given his share in FiscalBernabes estate, which is now being held by Ernestina as the sole surviving heir. On July 16, 1995, the Regional Trial Court dismissed the complaint, ruling that under the provisions of the Family Code as well as the case of Uyguangco vs. Court of Appeals, the complaint is now barred x x x.[6] Issues

In her Memorandum,[8] petitioner raises the following issues for our consideration: I Whether or not respondent has a cause of action to file a case against petitioner, the legitimate daughter of the putative father, for recognition and partition with accounting after the putative fathers death in the absence of any written acknowledgment of paternity by the latter. II Whether or not the Honorable Court of Appeals erred in ruling that respondents had four years from the attainment of minority to file an action for recognition as provided in Art. 285 of the Civil Code, in complete disregard of its repeal by the [express] provisions of the Family Code and the applicable jurisprudence as held by the Honorable Court of Appeals. III

THIRD DIVISION [G.R. No. 140500. January 21, 2002] ERNESTINA BERNABE, petitioner, vs. CAROLINA ALEJO as guardian ad litem for the minor ADRIAN BERNABE, respondent. DECISION PANGANIBAN, J.: The right to seek recognition granted by the Civil Code to illegitimate children who were still minors at the time the Family

Orders of the Trial Court

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Whether or not the petition for certiorari filed by the petition[er] is fatally defective for failure to implead the Court of Appeals as one of the respondents.[9]

omitted by Articles 172, 173 and 175 of the Family Code, which we quote: ART. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or

already vested prior to its enactment should not be prejudiced or impaired as follows: ART. 255. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. The crucial issue to be resolved therefore is whether Adrians right to an action for recognition, which was granted by Article 285 of the Civil Code, had already vested prior to the enactment of the Family Code. Our answer is affirmative. A vested right is defined as one which is absolute, complete and unconditional, to the exercise of which no obstacle exists, and which is immediate and perfect in itself and not dependent upon a contingency x x x.[11] Respondent however contends that the filing of an action for recognition is procedural in nature and that as a general rule, no vested right may attach to [or] arise from procedural laws.[12] Bustos v. Lucero[13] distinguished substantive from procedural law in these words: x x x. Substantive law creates substantive rights and the two terms in this respect may be said to be synonymous. Substantive rights is a term which includes those rights which one enjoys under the legal system prior to the disturbance of normal relations. Substantive law is that part of the law which creates, defines and regulates rights, or which regulates the rights and duties which give rise to a cause of action; that part of the law which courts are established to administer; as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtains redress for their invasion.[14] (Citations omitted) Recently, in Fabian v. Desierto,[15] the Court laid down the test for determining whether a rule is procedural or substantive: *I+n determining whether a rule prescribed by the Supreme Court, for the practice and procedure of the lower courts, abridges, enlarges, or modifies any substantive right, the test is whether the rule really regulates procedure, that is, the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them. If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to appeal, it may be classified as a substantive matter; but if it operates as a means of

The Courts Ruling

The Petition has no merit. (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. ART. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action. The action already commenced by the child shall survive notwithstanding the death of either or both of the parties. ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same, evidence as legitimate children. The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent. Under the new law, an action for the recognition of an illegitimate child must be brought within the lifetime of the alleged parent. The Family Code makes no distinction on whether the former was still a minor when the latter died. Thus, the putative parent is given by the new Code a chance to dispute the claim, considering that illegitimate children are usually begotten and raised in secrecy and without the legitimate family being aware of their existence. x x x The putative parent should thus be given the opportunity to affirm or deny the childs filiation, and this, he or she cannot do if he or she is already dead.[10] Nonetheless, the Family Code provides the caveat that rights that have

First and Second Issues: Period to File Action for Recognition

Because the first and the second issues are interrelated, we shall discuss them jointly. Petitioner contends that respondent is barred from filing an action for recognition, because Article 285 of the Civil Code has been supplanted by the provisions of the Family Code. She argues that the latter Code should be given retroactive effect, since no vested right would be impaired. We do not agree. Article 285 of the Civil Code provides the period for filing an action for recognition as follows: ART. 285. The action for the recognition of natural children may be brought only during the lifetime of the presumed parents, except in the following cases: (1) If the father or mother died during the minority of the child, in which case the latter may file the action before the expiration of four years from the attainment of his majority; If after the death of the father or of the mother a document should appear of which nothing had been heard and in which either or both parents recognize the child.

(2)

In this case, the action must be commenced within four years from the finding of the document. The two exceptions provided under the foregoing provision, have however been

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implementing an existing right then the rule deals merely with procedure.[16] Applying the foregoing jurisprudence, we hold that Article 285 of the Civil Code is a substantive law, as it gives Adrian the right to file his petition for recognition within four years from attaining majority age. Therefore, the Family Code cannot impair or take Adrians right to file an action for recognition, because that right had already vested prior to its enactment. Uyguangco v. Court of Appeals[17] is not applicable to the case at bar, because the plaintiff therein sought recognition as an illegitimate child when he was no longer a minor. On the other hand, in Aruego Jr. v. Court of Appeals[18] the Court ruled that an action for recognition filed while the Civil Code was in effect should not be affected by the subsequent enactment of the Family Code, because the right had already vested.

Moreover, in the earlier case Divinagracia v. Rovira,[21] the Court said that the rules on voluntary and compulsory acknowledgment of natural children, as well as the prescriptive period for filing such action, may likewise be applied to spurious children. Pertinent portions of the case are quoted hereunder: The so-called spurious children, or illegitimate children other than natural children, commonly known as bastards, include those adulterous children or those born out of wedlock to a married woman cohabiting with a man other than her husband or to a married man cohabiting with a woman other than his wife. They are entitled to support and successional rights. But their filiation must be duly proven. How should their filiation be proven? Article 289 of the Civil Code allows the investigation of the paternity or maternity or spurious children under the circumstances specified in articles 283 and 284 of the Civil Code. The implication is that the rules on compulsory recognition of natural children are applicable to spurious children. Spurious children should not be in a better position than natural children. The rules on proof of filiation of natural children or the rules on voluntary and compulsory acknowledgment for natural children may be applied to spurious children. That does not mean that spurious children should be acknowledged, as that term is used with respect to natural children. What is simply meant is that the grounds or instances for the acknowledgment of natural children are utilized to establish the filiation of spurious children. A spurious child may prove his filiation by means of a record of birth, a will, a statement before a court of record, or in any authentic writing. These are the modes of voluntary recognition of natural children. In case there is no evidence on the voluntary recognition of the spurious child, then his filiation may be established by means of the circumstances or grounds for compulsory recognition prescribed in the aforementioned articles 283 and 284. The prescriptive period for filing the action for compulsory recognition in the case of natural children, as provided for in article 285 of the Civil Code, applies to spurious children.[22] (Citations omitted, italics supplied) Thus, under the Civil Code, natural children have superior successional rights

over spurious ones.[23] However, Rovira treats them as equals with respect to other rights, including the right to recognition granted by Article 285. To emphasize, illegitimate children who were still minors at the time the Family Code took effect and whose putative parent died during their minority are thus given the right to seek recognition (under Article 285 of the Civil Code) for a period of up to four years from attaining majority age. This vested right was not impaired or taken away by the passage of the Family Code. Indeed, our overriding consideration is to protect the vested rights of minors who could not have filed suit, on their own, during the lifetime of their putative parents. As respondent aptly points out in his Memorandum,[24] the State as parens patriae should protect a minors right. Born in 1981, Adrian was only seven years old when the Family Code took effect and only twelve when his alleged father died in 1993. The minor must be given his day in court.

Not Limited to Natural Children To be sure, Article 285 of the Civil Code refers to the action for recognition of natural children. Thus, petitioner contends that the provision cannot be availed of by respondent, because at the time of his conception, his parents were impeded from marrying each other. In other words, he is not a natural child. A natural child is one whose parents, at the time of conception, were not disqualified by any legal impediment from marrying each other. Thus, in De Santos v. Angeles,[19] the Court explained: A childs parents should not have been disqualified to marry each other at the time of conception for him to qualify as a natural child.[20] A strict and literal interpretation of Article 285 has already been frowned upon by this Court in the aforesaid case of Aruego, which allowed minors to file a case for recognition even if their parents were disqualified from marrying each other. There, the Complaint averred that the late Jose Aruego Sr., a married man, had an extramarital liason with Luz Fabian. Out of this relationship were born two illegitimate children who in 1983 filed an action for recognition. The two children were born in 1962 and 1963, while the alleged putative father died in 1982. In short, at the time of their conception, the two childrens parents were legally disqualified from marrying each other. The Court allowed the Complaint to prosper, even though it had been filed almost a year after the death of the presumed father. At the time of his death, both children were still minors.

Third Issue: Failure to Implead the CA

Under Section 4(a) of Rule 45 of the current Rules of Court, it is no longer required to implead the lower courts or judges x x x either as petitioners or respondents. Under Section 3, however, the lower tribunal should still be furnished a copy of the petition. Hence, the failure of petitioner to implead the Court of Appeals as a party is not a reversible error; it is in fact the correct procedure. WHEREFORE, the Petition is hereby DENIED and the assailed Decision and Resolution AFFIRMED. Costs against petitioner. SO ORDERED. Melo, (Chairman), SandovalGutierrez, and Carpio, JJ., concur. Vitug, J., no part. Relationship with family. SECOND DIVISION G.R. No. 155733 IN THE MATTER OF THE INTESTATE ESTATES OF THE DECEASED JOSE FA DELGADO AND GUILLERMO RUSTIA CARLOTA DELGADO VDA. DE DE LA ROSA and other HEIRS OF L UIS DELGADO, namely, HEIRS OF CONCHA VDA. DE AREVALO, HEIRS OF LU

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ISA DELGADO VDA. DE DANAO, AN GELA DELGADO ARESPACOCHAGA, TE RESA DELGADO PERLAS, CAROLINA DELGADO-ARESPACOCHAGA, RODOLFO DELGADO, BENJAMIN DELGADO, GLICERIA DELGADO and CLEOFAS DELGADO; and HEIRS OF GORGONIO DELGADO, namely, RAMON DELGADO CAMPO, CARLOS DELGADO CAMPO, CLARITA DELGADO CAMPO-REIZA, YOLANDA DELGADO ENCINAS, FELISA DELGADO CAMPO-ENCINAS and MELINDA DELGADO CAMPOMADARANG, Petitioners, Present : PUNO, J., Chairman, SANDOVA LGUTIERRE Z, -versus AZCUNA and CORONA,

t e d : January 27, 2006 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --------x DECISION CORONA, J.: In this petition for review on certiorari, petitioners seek to reinstate the May 11, 1990 decision of the Regional Trial Court (RTC) of Manila, Branch 55,[4] in SP Case No. 97668, which was reversed and set aside by the Court of Appeals in its decision[5] dated October 24, 2002.

Ramon Osorios and Felisa Delgados union is in dispute.

FACTS OF THE CASE This case concerns the settlement of the intestate estates of Guillermo Rustia and Josefa Delgado.[6] The main issue in this case is relatively simple: who, between petitioners and respondents, are the lawful heirs of the decedents. However, it is attended by several collateral issues that complicate its resolution. The claimants to the estates of Guillermo Rustia and Josefa Delgado may be divided into two groups: (1) the alleged heirs of JosefaDelgado, consisting of her half- and full-blood siblings, nephews and nieces, and grandnephews and grandnieces, and (2) the alleged heirs of Guillermo Rustia, particularly, his sisters,[7] his nephews and nieces,[8] his illegitimate child,[9] and the de facto adopted child[10] (ampun-ampunan) of the decedents.

The question of whether Felisa Delgado and Ramon Osorio ever got married is crucial to the claimants because the answer will determine whether their successional rights fall within the ambit of the rule against reciprocal intestate succession between legitimate and illegitimate relatives.[13] If Ramon Osorio and Felisa Delgado had been validly married, then their only child Luis Delgado was a legitimate half-blood brother of Josefa Delgado and therefore excluded from the latters intestate estate. He and his heirs would be barred by the principle of absolute separation between the legitimate and illegitimate families. Conversely, if the couple were never married, Luis Delgado and his heirs would be entitled to inherit from Josefa Delgados intestate estate, as they would all be within the illegitimate line. Petitioners allege that Ramon Osorio and Felisa Delgado were never married. In support thereof, they assert that no evidence was ever presented to establish it, not even so much as an allegation of the date or place of the alleged marriage. What is clear, however, is that Felisaretained the surname Delgado. So did Luis, her son with Ramon Osorio. Later on, when Luis got married, his Partida de Casamiento[14]stated that he was hijo natural de Felisa Delgado (the natural child of Felisa Delgado),[15] significantly omitting any mention of the name and other circumstances of his father.[16] Nevertheless, oppositors (now respondents) insist that the absence of a record of the alleged marriage did not necessarily mean that no marriage ever took place. Josefa Delgado died on September 8, 1972 without a will. She was survived by Guillermo Rustia and some collateral relatives, the petitioners herein. Several months later, on June 15, 1973, Guillermo Rustia executed an affidavit of self-adjudication of the remaining properties comprising her estate.

HEIRS OF MARCIANA RUSTIA VDA. DE DAMIAN, NAMELY, GUILLERMO R. DAMIAN AND JOSE R. DAMIAN; HEIRS OF HORTENCIA RUSTIA CRUZ, NAMELY, TERESITA CRUZSISON, HORACIO R. CRUZ, JOSEFINA CRUZRODIL, AMELIA CRUZENRIQUEZ AND FIDEL R. CRUZ, JR.; HEIRS OF ROMAN RUSTIA, SR., NAMELY, JOSEFINA RUSTIA ALBANO, VIRGINIA RUSTIA PARAISO, ROMAN RUSTIA, JR., SERGIO RUSTIA, FRANCISCO RUSTIA, LETICIA RUSTIA-MIRANDA; AND GUILLERMINA RUSTIA, AS OPPOSITORS;[1] AND GUILLERMA RUSTIA, AS INTERVENOR,[2] R e s p o n d e n t s .
[ 3 ]

THE ALLEGED HEIRS OF JOSEFA DELGADO The deceased Josefa Delgado was the daughter of Felisa[11] Delgado by one Lucio Campo. Aside from Josefa, five other children were born to the couple, namely, Nazario, Edilberta, Jose, Jacoba, and Gorgonio, all surnamed Delgado. Felisa Delgado was never married to LucioCampo, hence, Josefa and her fullblood siblings were all natural children of Felisa Delgado. However, Lucio Campo was not the first and only man in Felisa Delgados life. Before him was Ramon Osorio[12] with whom Felisa had a son, Luis Delgado. But, unlike her relationship with Lucio Campo which was admittedly one without the benefit of marriage, the legal status of

P r o m u l g a

THE MARRIAGE OF GUILLERMO RUSTIA AND JOSEFA DELGAD O Sometime in 1917, Guillermo Rustia proposed marriage to Josefa Delgado[17] but whether a marriage in fact took place is disputed. According to petitioners, the two eventually lived together as husband and

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wife but were never married. To prove their assertion, petitioners point out that no record of the contested marriage existed in the civil registry. Moreover, a baptismal certificate naming Josefa Delgado as one of the sponsors referred to her as Seorita or unmarried woman. The oppositors (respondents here), on the other hand, insist that the absence of a marriage certificate did not of necessity mean that no marriage transpired. They maintain that Guillermo Rustia and Josefa Delgado were married on June 3, 1919 and from then on lived together as husband and wife until the death of Josefa on September 8, 1972. During this period spanning more than half a century, they were known among their relatives and friends to have in fact been married. To support their proposition, oppositors presented the following pieces of evidence:

4. Titles to real properties in the name of Guillermo Rustia indic ated that he was married to Josefa Delgado.

Josefina Rustia Albano, Virginia RustiaParaiso, Roman Rustia, Jr., Sergio Rustia, Francisco Rustia and Leticia Rustia Miranda .[24] ANTECEDENT PROCEEDINGS On May 8, 1975, Luisa Delgado vda. de Danao, the daughter of Luis Delgado, filed the original petition for letters of administration of the intestate estates of the spouses Josefa Delgado and Guillermo Rustia with the RTC of Manila, Branch 55.[25] This petition was opposed by the following: (1) the sisters of Guillermo Rustia, namely, Marciana Rustia vda. de Damian and Hortencia Rustia-Cruz;[26] (2) the heirs of Guillermo Rustias late brother, Roman Rustia, Sr., and (3) the ampunampunan Guillermina Rustia Rustia. The opposition was grounded on the theory that Luisa Delgado vda. de Danao and the other claimants were barred under the law from inheriting from their illegitimate halfblood relative Josefa Delgado. In November of 1975, Guillerma Rustia filed a motion to intervene in the proceedings, claiming she was the only surviving descendant in the direct line of Guillermo Rustia. Despite the objections of the oppositors (respondents herein), the motion was granted. On April 3, 1978, the original petition for letters of administration was amended to state that Josefa Delgado and Guillermo Rustia werenever married but had merely lived together as husband and wife. On January 24, 1980, oppositors (respondents herein) filed a motion to dismiss the petition in the RTC insofar as the estate of Guillermo Rustia was concerned. The motion was denied on the ground that the interests of the petitioners and the other claimants remained in issue and should be properly threshed out upon submission of evidence. On March 14, 1988, Carlota Delgado vda. de de la Rosa substituted for her sister, Luisa Delgado vda. de Danao, who had died on May 18, 1987. On May 11, 1990, the RTC appointed Carlota Delgado vda. de de la Rosa as administratrix of both estates.[27] The dispositive portion of the decision read:

THE ALLEGED GUILLERMO RUSTIA

HEIRS

OF

Guillermo Rustia and Josefa Delgado never had any children. With no children of their own, they took into their home the youngstersGuillermina Rustia Rustia and Na nie Rustia. These children, never legally adopted by the couple, were what was known in the local dialect asampun-ampunan. During his life with Josefa, however, Guillermo Rustia did manage to father an illegitimate child,[19] the intervenorrespondentGuillerma Rustia, with one Amparo Sagarbarria. According to Guillerma, Guillermo Rustia treated her as his daughter, his own flesh and blood, and she enjoyed open and continuous possession of that status from her birth in 1920 until her fathers demise. In fact, JosefaDelgados obituary which was prepared by Guillermo Rustia, named the intervenor-respondent as one of their children. Also, her report card from the University of Santo Tomas identified Guillermo Rustia as her parent/guardian.[20] Oppositors (respondents here) nonetheless posit that Guillerma Rustia has no interest in the intestate estate of Guillermo Rustia as she was never duly acknowledged as an illegitimate child. They contend that her right to compulsory acknowledgement prescribed when Guillermo died in 1974 and that she cannot claim voluntary acknowledgement since the documents she presented were not the authentic writings prescribed by the new Civil Code.[21] On January 7, 1974, more than a year after the death of Josefa Delgado, Guillermo Rustia filed a petition for the adoption[22] of theirampunampunan Guillermina Rustia. He stated under oath *t+hat he ha*d+ no legitimate, legitimated, acknowledged natural children or natural children by legal fiction.[23] The petition was overtaken by his death on February 28, 1974. Like Josefa Delgado, Guillermo Rustia died without a will. He was survived by his sisters Marciana Rustia vda. de Damian andHortencia Rustia-Cruz, and by the children of his predeceased brother Roman Rustia Sr., namely,

1. Certificat e of Identity No. 9592 dated [December 1, 1944] issued to Mrs. Guillermo J. Rustia by Carlos P. Romulo, then Resident Commissioner to the United States of the Commonwealth of the Philippines; 2. Philippin e Passport No. 4767 issued to Josefa D. Rustia on June 25, 1947; 3. Veterans Application for Pension or Compensation for Disability Resulting from Service in the Active Military or Naval Forces of the United States- Claim No. C-4, 004, 503 (VA Form 526) filed with the Veterans Administration of the United States of America by Dr. Guillermo J. Rustia wherein Dr. Guillermo J. Rustia himself [swore] to his marriage to Josefa Delgado in Manila on 3 June 1919;[18]

WHEREFORE, in view of all the foregoing, petitioner and her coclaimants to the estate of the

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late Josefa Delgado listed in the Petitions, and enumerated elsewhere in this Decision, are hereby declared as the only legal heirs of the said Josefa Delgado who died intestate in the City of Manila on September 8, 1972, and entitled to partition the same among themselves in accordance with the proportions referred to in this Decision.

Similarly, the intervenor Guillerma S. Rusti a is hereby declared as the sole and only surviving heir of the late Dr. Guillermo Rustia, and thus, entitled to the entire estate of the said decedent, to the exclusion of the oppositors and the other parties hereto.

estates, and is likewise ordered to turn over to the appointed administratix all her collections of the rentals and income due on the assets of the estates in question, including all documents, papers, records and titles pertaining to such estates to the petitioner and appointed administratix CARLOT A DELGADO VDA. DE DE LA ROSA, immediately upon receipt of this Decision. The sameoppositor is hereby required to render an accounting of her actual administration of the estates in controversy within a period of sixty (60) days from receipt hereof.

the heirs of the decedents and the party entitled to the administration of their estate, which were to be raised in the appeal, but were barred absolutely by the denial of the record on appeal upon too technical ground of late filing. xxx xxx xxx

SO ORDERED.[28] On May 20, 1990, oppositors filed an appeal which was denied on the ground that the record on appeal was not filed on time.[29] They then filed a petition for certiorari and mandamus[30] which was dismissed by the Court of Appeals.[31] However, on motion for reconsideration and after hearing the parties oral arguments, the Court of Appeals reversed itself and gave due course to oppositors appeal in the interest of substantial justice.[32] In a petition for review to this Court, petitioners assailed the resolution of the Court of Appeals, on the ground that oppositors failure to file the record on appeal within the reglementary period was a jurisdictional defect which nullified the appeal. On October 10, 1997, this Court allowed the continuance of the appeal. The pertinent portion of our decision[33] read: As a rule, periods prescribed to do certain acts must be followed. However, under exceptional circumstances, a delay in the filing of an appeal may be excused on grounds of substantial justice. xxx xxx xxx

The Affidavit of SelfAdjudication of the estate of Josefa Delgado executed by the late Guillermo J. Rustia on June 15, 1973 is hereby SET ASIDE and declared of no force and effect. As the estates of both dece[d]ents have not as yet been settled, and their settlement [is] considered consolidated in this proceeding in accordance with law, a single administrator therefor is both proper and necessary, and, as the petitioner Carlota Delgado Vda. de dela Rosa has established her right to the appointment as administratrix of the estates, the Court hereby APPOINTS her as the ADMINISTRATRIX of the intestate estate of the decedent JOSEFA DELGADO in relation to the estate of DR. GUILLERMO J. RUSTIA. Accordingly, let the corresponding LETTERS OF ADMINISTRATION issue to the petitioner CARLOTA DELGADO VDA. DE DE LA ROSA upon her filing of the requisite bond in the sum of FIVE HUNDRED THOUSAND PESOS (P500,000.00). Finally, oppositor GUI LLERMINA RUSTIA RUSTIA is hereby ordered to cease and desist from her acts of administration of the subject

In this instance, private respondents intention to raise valid issues in the appeal is apparent and should not have been construed as an attempt to delay or prolong the administration proceedings. xxx xxx A review of the trial courts decision is needed. xxx xxx xxx xxx

WHEREFO RE, in view of the foregoing considerations, the Court hereby AFFIRMS the Resolution dated November 27, 1991 of the Court of Appeals in CA-G.R. SP No. 23415, for the APPROVAL of the private respondents Record on Appeal and the CONTINUANCE of the appeal from the Manila, Branch LV Regional Trial Courts May 11, 1990 decision. SO ORDERED.

The respondent court likewise pointed out the trial courts pronouncements as to certain matters of substance, relating to the determination of

Acting on the appeal, the Court of Appeals[34] partially set aside the trial courts decision. Upon motion for reconsideration,[35] the Court of Appeals amended its earlier decision.[36] The dispositive portion of the amended decision read:

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With the further modification, our assailed decision is RECONSIDERED and VACATED. Conseque ntly, the decision of the trial court is REVERSED and SET ASIDE. A new one is hereby RENDERED declaring: 1.) Dr. Guillermo Rustia and Josefa Delgado Rustia to have been legally married; 2.) the intestate estate of Dr. Guillermo Rustia,Jacoba DelgadoEncinas and the children of Gorgonio Delgado (Campo) entitled to partition among themselves the intestate estate of Josefa D. Rustia in accordance with the proportion referred to in this decision; 3.) the oppositors-appellants as the legal heirs of the late Dr. Guillermo Rustia and thereby entitled to partition his estate in accordance with the proportion referred to herein; and 4.) the intervenorappellee Guillerma S. Rustia as ineligible to inherit from the late Dr. Guillermo Rustia; thus revoking her appointment asadministratrix of his estate. The letters of administration of the intestate estate of Dr. Guillermo Rustia in relation to the intestate estate of Josefa Delgado shall issue to the nominee of the oppositorsappellants upon his or her qualification and filing of the requisite bond in the sum of FIVE HUNDRED THOUSAND PESOS (P500,000.00). Oppositorappellant Guillermina Rustia Rustia is hereby ordered to cease and desist from her acts of administration of the subject estates and to turn over to the appointed administrator all her collections of the rentals and incomes due on the assets of the estates in question, including all documents, papers, records and titles pertaining to such estates to the appointed administrator, immediately upon notice of his

qualification and posting of the requisite bond, and to render an accounting of her (Guillermina Rustia R ustia) actual administration of the estates in controversy within a period of sixty (60) days from notice of the administrators qualification and posting of the bond. The issue of the validity of the affidavit of selfadjudication executed by Dr. Guillermo Rustia on June 15, 1973 is REMANDED to the trial court for further proceedings to determine the extent of the shares of Jacoba DelgadoEncinas and the children of Gorgonio Delgado (Campo) affected by the said adjudication. Hence, this recourse. The issues for our resolution are: 1. whether there was a valid marriage between Guillermo Rustia and Josefa Delgado;

Sec. 3. Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: xxx xxx (aa) That a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage; xxx

xxx xxx

xxx

In this case, several circumstances give rise to the presumption that a valid marriage existed between Guillermo Rustia and JosefaDelgado. Their cohabitation of more than 50 years cannot be doubted. Their family and friends knew them to be married. Their reputed status as husband and wife was such that even the original petition for letters of administration filed by Luisa Delgado vda. de Danao in 1975 referred to them as spouses.

2.

who the legal heirs of the decedents Guillermo Rustia and Josefa Delgado are; who should be issued letters of administration.

Yet, petitioners maintain that Josefa Delgado and Guillermo Rustia had simply lived together as husband and wife without the benefit of marriage. They make much of the absence of a record of the contested marriage, the testimony of a witness[38] attesting that they were not married, and a baptismal certificate which referred to Josefa Delgado as Seorita or unmarried woman.[39]

3.

We are not persuaded. THE MARRIAGE OF GUILLERMO RUSTIA AND JOSEFA DELGADO First, although a marriage contract is considered a primary evidence of marriage, its absence is not always proof that no marriage in fact took place.[40] Once the presumption of marriage arises, other evidence may be presented in support thereof. The evidence need not necessarily or directly establish the marriage but must at least be enough to strengthen the presumption of marriage. Here, the certificate of identity issued to Josefa Delgado as Mrs. Guillermo Rustia,[41] the passport issued to her as Josefa D. Rustia,[42] the declaration under oath of no less than Guillermo Rustia that he was married

A presumption is an inference of the existence or non-existence of a fact which courts are permitted to draw from proof of other facts. Presumptions are classified into presumptions of law and presumptions of fact. Presumptions of law are, in turn, either conclusive or disputable.[37] Rule 131, Section 3 of the Rules of Court provides:

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to Josefa Delgado[43] and the titles to the properties in the name of Guillermo Rustiamarried to Josefa Delgado, more than adequately support the presumption of marriage. These are public documents which are prima facieevidence of the facts stated therein.[44] No clear and convincing evidence sufficient to overcome the presumption of the truth of the recitals therein was presented by petitioners.

Little was said of the cohabitation or alleged marriage of Felisa Delgado and Ramon Osorio. The oppositors (now respondents) chose merely to rely on the disputable presumption of marriage even in the face of such countervailing evidence as (1) the continued use by Felisaand Luis (her son with Ramon Osorio) of the surname Delgado and (2) Luis Delgados and Caridad Concepcions Partida de Casam iento[49]identifying Luis as hijo natural de Felisa Delgado (the natural child of Felisa Delgado).[50] All things considered, we rule that these factors sufficiently overcame the rebuttable presumption of marriage. Felisa Delgado and Ramon Osorio were never married. Hence, all the children born to Felisa Delgado out of her relations with Ramon Osorio and Lucio Campo, namely, Luis and his half-blood siblings Nazario, Edilberta, Jose, Jacoba, Gorgonio and the decedent Josefa, all surnamed Delgado,[51] were her natural children.[52] Pertinent to this matter is the following observation:

owever, we submit t hat succession should be allowed, even when the illegitimate brothers and sisters are only of the halfblood. The reason impelling the prohibition on reciprocal successions between legitimate and illegitimate families does not apply to the case under consideration. That prohibition has for its basis the difference in category between illegitimate and legitimate relatives. There is no such difference when all the children are illegitimate children of the same parent, even if begotten with different persons. They all stand on the same footing before the law, just like legitimate children of half-blood relation. We submit, therefore, that the rules regarding succession of legitimate brothers and sisters should be applicable to them. Full blood illegitimate brothers and sisters should receive double the portion of half-blood brothers and sisters; and if all are either of the full blood or of the half-blood, they shall share equally.[53]

Second, Elisa vda. de Anson, petitioners own witness whose testimony they primarily relied upon to support their position, confirmed that Guillermo Rustia had proposed marriage to Josefa Delgado and that eventually, the two had lived together as husband and wife. This again could not but strengthen the presumption of marriage. Third, the baptismal certificate[45] was conclusive proof only of the baptism administered by the priest who baptized the child. It was no proof of the veracity of the declarations and statements contained therein,[46] such as the alleged single or unmarried (Seorita) civil status of Josefa Delgado who had no hand in its preparation. Petitioners failed to rebut the presumption of marriage of Guillermo Rustia and Josefa Delgado. In this jurisdiction, every intendment of the law leans toward legitimizing matrimony. Persons dwelling together apparently in marriage are presumed to be in fact married. This is the usual order of things in society and, if the parties are not what they hold themselves out to be, they would be living in constant violation of the common rules of law and propriety. Semper praesumitur pro matrim [47] onio. Always presume marriage. THE LAWFUL HEIRS OF JOSEFA DELGADO To determine who the lawful heirs of Josefa Delgado are, the questioned status of the cohabitation of her mother Felisa Delgado with Ramon Osorio must first be addressed. As mentioned earlier, presumptions of law are either conclusive or disputable. Conclusive presumptions are inferences which the law makes so peremptory that no contrary proof, no matter how strong, may overturn them.[48] On the other hand, disputable presumptions, one of which is the presumption of marriage, can be relied on only in the absence of sufficient evidence to the contrary.

Suppose, however, that A begets X with B, and Y with another woman, C; then X and Y would be natural brothers and sisters, but of half-blood relationship. Can they succeed each other reciprocally?

The law prohibits reciprocal succession between illegitimate children and legitimate children of the same parent, even though there is unquestionably a tie of blood between them. It seems that to allow an illegitimate child to succeed ab intestato ( from) another illegitimate child begotten with a parent different from that of the former, would be allowing the illegitimate child greater rights than a legitimate child. Not withstanding this, h

Here, the above-named siblings of Josefa Delgado were related to her by full-blood, except Luis Delgado, her halfbrother. Nonetheless, since they were all illegitimate, they may inherit from each other. Accordingly, all of them are entitled to inherit from Josefa Delgado. We note, however, that the petitioners before us are already the nephews, nieces, grandnephews and grandnieces of Josefa Delgado. Under

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Article 972 of the new Civil Code, the right of representation in the collateral line takes place only in favor of the children of brothers and sisters (nephews and nieces). Consequently, it cannot be exercised by grandnephews and grandnieces.[54] Therefore, the only collateral relatives of Josefa Delgado who are entitled to partake of her intestate estate are her brothers and sisters, or their children who were still alive at the time of her death on September 8, 1972. They have a vested right to participate in the inheritance.[55] The records not being clear on this matter, it is now for the trial court to determine who were the surviving brothers and sisters (or their children) of Josefa Delgado at the time of her death. Together with Guillermo Rustia,[56] they are entitled to inherit from Josefa Delgado in accordance with Article 1001 of the new Civil Code:[57] Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other one-half.

filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only one heir, he may adjudicate to himself the estate by means of an affidavit filed in the office of the register of deeds. x x x (emphasi s supplied)

s possession of status of a child of the alleged father (or mother)[61] by the direct acts of the latter or of his family; (3) when the child was conceived during the time when the mother cohabited with the supposed father; when the child has in his favor any evidence or proof that the defendant is his father. [62]

THE LAWFUL HEIRS GUILLERMO RUSTIA

OF

Intervenor (now corespondent) Guillerma Rustia is an illegitimate child[58] of Guillermo Rustia. As such, she may be entitled tosuccessional rights only upon proof of an admission or recognition of paternity.[59] She, however, claimed the status of an acknowledged illegitimate child of Guillermo Rustia only after the death of the latter on February 28, 1974 at which time it was already the new Civil Code that was in effect. Under the old Civil Code (which was in force till August 29, 1950), illegitimate children absolutely had no hereditary rights. This draconian edict was, however, later relaxed in the new Civil Code which granted certain successional rights to illegitimate children but only on condition that they were first recognized or acknowledged by the parent. Under the new law, recognition may be compulsory or voluntary.[60] Recognition is compulsory in any of the following cases:

(4)

Since Josefa Delgado had heirs other than Guillermo Rustia, Guillermo could not have validly adjudicated Josefas estate all to himself. Rule 74, Section 1 of the Rules of Court is clear. Adjudication by an heir of the decedents entire estate to himself by means of an affidavit is allowed only if he is the sole heir to the estate:

On the other hand, voluntary recognition may be made in the record of birth, a will, a statement before a court of record or in any authentic writing.[63]

SECTION 1. Extrajudicial settlement by agreement between heirs. If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument

(1)

in cases of rape, abduction or seduction, when the period of the offense coincides more or less with that of the conceptio n; when the child is in continuou

Intervenor Guillerma sought recognition on two grounds: first, compulsory recognition through the open and continuous possession of the status of an illegitimate child and second, voluntary recognition through authentic writing. There was apparently no doubt that she possessed the status of an illegitimate child from her birth until the death of her putative father Guillermo Rustia. However, this did not constitute acknowledgment but a mere ground by which she could have compelled acknowledgment through the courts.[64] Furthermore, any (judicial) action for compulsory acknowledgment has a dual limitation: the lifetime of the child and the lifetime of the putative parent.[65] On the death of either, the action for compulsory recognition can no longer be filed.[66] In this case,intervenor Guillermas right to claim compulsory acknowledgment prescribed

(2)

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upon the death of Guillermo Rustia on February 28, 1974. The claim of voluntary recognition (Guillermas second ground) must likewise fail. An authentic writing, for purposes of voluntary recognition, is understood as a genuine or indubitable writing of the parent (in this case, Guillermo Rustia). This includes a public instrument or a private writing admitted by the father to be his.[67] Did intervenors report card from the University of Santo Tomas andJosefa Delgados obituary prepared by Guillermo Rustia qualify as authentic writings under the new Civil Code? Unfortunately not. The report card of intervenor Guillerma did not bear the signature of Guillermo Rustia. The fact that his name appears there as intervenorsparent/guardian holds no weight since he had no participation in its preparation. Similarly, while witnesses testified that it was GuillermoRustia himself who drafted the notice of death of Josefa Delgado which was published in the SUNDAY TIMES on September 10, 1972, that published obituary was not the authentic writing contemplat ed by the law. What could have been admitted as an a uthentic writing was the original manuscript of the notic e, in the handwriting of Guillermo Rustia himself and signed by him, not the newspaper clipping of the obituary. The failure to present the original signed manuscript was fatal to intervenors claim.

under Rule 99 of the Rules of Court is valid in this jurisdiction. It is not of natural law at all, but is wholly and entirely artificial. To establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity. The fact of adoption is never presumed, but must be affirmatively [proven] by the person claiming its existence.[68]

Premises considered, we rule that two of the claimants to the estate of Guillermo Rustia, namely, intervenor Guillerma Rustia and theampunampunan Guillermina Rustia Rustia, are not lawful heirs of the decedent. Under Article 1002 of the new Civil Code, if there are no descendants, ascendants, illegitimate children, or surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased. Therefore, the lawful heirs of Guillermo Rustia are the remaining claimants, consisting of his sisters,[69] nieces and nephews.[70]

(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve;

The same misfortune befalls the ampunampunan, Guillermina Rustia Rustia, who was never adopted in accordance with law. Although a petition for her adoption was filed by Guillermo Rustia, it never came to fruition and was dismissed upon the latters death. We affirm the ruling of both the trial court and the Court of Appeals holding her a legal stranger to the deceased spouses and therefore not entitled to inherit from them ab intestato. We quote: Adoption is a juridical act, a proceeding in rem, which [created] between two persons a relationship similar to that which results from legitimate paternity and filiation. Only an adoption made through the court, or in pursuance with the procedure laid down

ENTITLEMENT TO ADMINISTRATION

LETTERS

OF

An administrator is a person appointed by the court to administer the intestate estate of the decedent. Rule 78, Section 6 of the Rules of Court prescribes an order of preference in the appointment of an administrator:

Sec. 6. When and to whom letters of administration granted. If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give a bond, or a person dies intestate, administration shall be granted:

(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompete nt or unwilling, or if the husband or widow or next of kin, neglects for thirty (30) days after the death of the person to apply for administra tion or to request that the administra tion be granted to some other

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person, it may be granted to one or more of the principal creditors, if competent and willing to serve;

(c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select. In the appointment of an administrator, the principal consideration is the interest in the estate of the one to be appointed.[71] The order of preference does not rule out the appointment of coadministrators, specially in cases where justice and equity demand that opposing parties or factions be represented in the management of the estates,[72] a situation which obtains here. It is in this light that we see fit to appoint joint administrators, in the persons of Carlota Delgado vda. de de la Rosa and a nominee of the nephews and nieces of Guillermo Rustia. They are the next of kin of the deceased spouses Josefa Delgado and Guillermo Rustia, respectively. WHEREFORE, the petition (which seeks to reinstate the May 11, 1990 decision of the RTC Manila, Branch 55) is hereby DENIED. The assailed October 24, 2002 decision of the Court of Appeals is AFFIRMED with the following modifications:

and half-siblings of Josefa Delgado who survived her and (b) the children of any of Josefa Delgados full- or half-siblings who may have predeceased her, also surviving at the time of her death. Josefa Delgad os grandnephews and grandnieces are excluded from her estate. In this connection, the trial court is hereby ordered to determine the identities of the relatives ofJosefa Delgado who are entitled to share in her estate. 3. Guillermo Rustias esta te (including its onehalf share of Josefa Delgados estate) shall be inherited by Marciana Rustia vd a. deDamian and Hortencia Rustia Cruz (whose respective shares shall be per capita) and the children of the late Roman Rustia, Sr. (who survived Guillermo Rustia and whose respective shares shall be per stirpes). Consi dering that Marciana Rustia vda. deDamian and Hortencia Rustia Cruz are now deceased, their respective shares shall pertain to their estates. Letters of administration over the still unsettled intestate estates of Guillermo Rustia and Josefa Delgado shall issue to Carlota Delgado vda. de de la Rosa and to a nominee from among the heirs of Guillermo Rustia, as joint administrators, upon their qualification and filing of the requisite

bond in such amount as may be determined by the trial court.

No pronouncement as to costs.

SO ORDERED. RENATO C. CORONA Associate Justice Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 159785 April 27, 2007

TEOFISTO I. VERCELES, Petitioner, vs. MARIA CLARISSA POSADA, in her own behalf, and as mother of minor VERNA AIZA POSADA, CONSTANTINO POSADA and FRANCISCA POSADA, Respondents. DECISION QUISUMBING, J.: This petition for review seeks the reversal of the Decision1 dated May 30, 2003 and the Resolution2 dated August 27, 2003 of the Court of Appeals in CA-G.R. CV No. 50557. The appellate court had affirmed with modification the Judgment3 dated January 4, 1995 of the Regional Trial Court (RTC) of Virac, Catanduanes, Branch 42, in Civil Case No. 1401. The RTC held petitioner liable to pay monthly support to Verna Aiza Posada since her birth on September 23, 1987 as well as moral and exemplary damages, attorneys fees and costs of suit. The facts in this case as found by the lower courts are as follows: Respondent Maria Clarissa Posada (Clarissa), a young lass from the barrio of Pandan, Catanduanes, sometime in 1986 met a close family friend, petitioner Teofisto I. Verceles, mayor of Pandan. He then called on the Posadas and at the end of the visit, offered Clarissa a job. Clarissa accepted petitioners offer and worked as a casual employee in the mayors office starting on September 1, 1986. From November 10 to 15 in 1986, with companions Aster de Quiros, Pat del Valle,

4.

1.

Guillermo Rustias Jun e 15, 1973 affidavit of self-adjudication is hereby ANNULLED. the intestate estate of Guillermo Rustia shall inherit half of the intestate estate of Josefa Delgado. Th e remaining half shall pertain to (a) the full

2.

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Jaime and Jocelyn Vargas, she accompanied petitioner to Legaspi City to attend a seminar on town planning. They stayed at the Mayon Hotel. On November 11, 1986, at around 11:00 a.m., petitioner fetched Clarissa from "My Brothers Place" where the seminar was being held. Clarissa avers that he told her that they would have lunch at Mayon Hotel with their companions who had gone ahead. When they reached the place her companions were nowhere. After petitioner ordered food, he started making amorous advances on her. She panicked, ran and closeted herself inside a comfort room where she stayed until someone knocked. She said she hurriedly exited and left the hotel. Afraid of the mayor, she kept the incident to herself. She went on as casual employee. One of her tasks was followingupbarangay road and maintenance projects. On December 22, 1986, on orders of petitioner, she went to Virac, Catanduanes, to follow up funds for barangayprojects. At around 11:00 a.m. the same day, she went to Catanduanes Hotel on instructions of petitioner who asked to be briefed on the progress of her mission. They met at the lobby and he led her upstairs because he said he wanted the briefing done at the restaurant at the upper floor. Instead, however, petitioner opened a hotel room door, led her in, and suddenly embraced her, as he told her that he was unhappy with his wife and would "divorce" her anytime. He also claimed he could appoint her as a municipal development coordinator. She succumbed to his advances. But again she kept the incident to herself. Sometime in January 1987, when she missed her menstruation, she said she wrote petitioner that she feared she was pregnant. In another letter in February 1987, she told him she was pregnant. In a handwritten letter dated February 4, 1987, he replied: My darling Chris, Should you become pregnant even unexpectedly, I should have no regret, because I love you and you love me. Let us rejoice a common responsibility you and I shall take care of it and let him/her see the light of this beautiful world. We know what to do to protect our honor and integrity.

Just relax and be happy, if true. With all my love, Ninoy 2/4/874 Clarissa explained petitioner used an alias "Ninoy" and addressed her as "Chris," probably because of their twenty-five (25)year age gap. In court, she identified petitioners penmanship which she claims she was familiar with as an employee in his office. Clarissa presented three other handwritten letters5 sent to her by petitioner, two of which were in his letterhead as mayor of Pandan. She also presented the pictures6 petitioner gave her of his youth and as a public servant, all bearing his handwritten notations at the back. Clarissa avers that on March 3, 1987, petitioner, aware of her pregnancy, handed her a letter and P2,000 pocket money to go to Manila and to tell her parents that she would enroll in a CPA review course or look for a job. In June 1987, petitioner went to see her in Manila and gave her another P2,000 for her delivery. When her parents learned of her pregnancy, sometime in July, her father fetched her and brought her back to Pandan. On September 23, 1987,7 she gave birth to a baby girl, Verna Aiza Posada. Clarissas mother, Francisca, corroborated Clarissas story. She said they learned of their daughters pregnancy through her husbands cousin. She added that she felt betrayed by petitioner and shamed by her daughters pregnancy. The Posadas filed a Complaint for Damages coupled with Support Pendente Lite before the RTC, Virac, Catanduanes against petitioner on October 23, 1987.8 On January 4, 1995, the trial court issued a judgment in their favor, the dispositive portion of which reads as follows: WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of the [respondents] and against the [petitioner] and ordering the latter: 1. to pay a monthly support of P2,000.00 to Verna Aiza Posada since her birth on September 23, 1987 as he was proved to be the natural father of the above-named minor as

shown by the exhibits and testimonies of the [respondents]; 2. to pay the amount of P30,000.00 as moral damages; 3. to pay the amount of P30,000.00 as exemplary damages; 4. to pay the sum of P10,000.00 as attorneys fees; and 5. to pay the costs of the suit. SO ORDERED.9 Verceles appealed to the Court of Appeals which affirmed the judgment with modification, specifying the party to whom the damages was awarded. The dispositive portion of the Court of Appeals decision reads: WHEREFORE, the appealed judgment is AFFIRMED with modification by ordering [petitioner] Teofisto I. Verceles: 1. To pay a monthly support of P2,000.00 to Verna Aiza Posada from her birth on September 23, 1987. 2. To pay [respondent] Maria Clarissa Posada the sum of P15,000.00 as moral damages and [P]15,000.00 as exemplary damages. 3. To pay [respondents] spouses Constantino and Francisca Posada the sum of P15,000.00 as moral damages and P15,000.00 as exemplary damages. 4. To pay each of the said three [respondents] P10,000.00 as attorneys fees; and 5. To pay the costs of suit. SO ORDERED.10 Hence, this petition. Petitioner now presents the following issues for resolution: I.

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WAS THERE ANY EVIDENCE ON RECORD TO PROVE THAT APPELLANT VERCELES WAS THE FATHER OF THE CHILD? II. WOULD THIS ACTION FOR DAMAGES PROSPER? III. WOULD THE RTC COURT HAVE ACQUIRED JURISDICTION OVER THIS ISSUE OF APPELLANTS PATERNITY OF THE CHILD, WHICH IS MADE COLLATERAL TO THIS ACTION FOR DAMAGES?11 In sum, the pertinent issues in this case are: (1) whether or not paternity and filiation can be resolved in an action for damages with support pendente lite; (2) whether or not the filiation of Verna Aiza Posada as the illegitimate child of petitioner was proven; and (3) whether or not respondents are entitled to damages. In his Memorandum, petitioner asserts that the fact of paternity and filiation of Verna Aiza Posada has not been duly established or proved in the proceedings; that the award for damages and attorneys fees has no basis; and that the issue of filiation should be resolved in a direct and not a collateral action. Petitioner argues he never signed the birth certificate of Verna Aiza Posada as father and that it was respondent Clarissa who placed his name on the birth certificate as father without his consent. He further contends the alleged love letters he sent to Clarissa are not admissions of paternity but mere expressions of concern and advice.12 As to the award for damages, petitioner argues Clarissa could not have suffered moral damages because she was in pari delicto, being a willing participant in the "consensual carnal act" between them.13 In support of his argument that the issue on filiation should have been resolved in a separate action, petitioner cited the case of Rosales v. Castillo Rosales14 where we held that the legitimacy of a child which is controversial can only be resolved in a direct action.15 On the other hand, respondents in their Memorandum maintain that the Court of Appeals committed no error in its decision. They reiterate that Clarissas clear narration of the circumstances on "how she was deflowered" by petitioner, the love letters and pictures given by petitioner to Clarissa, the corroborating testimony of Clarissas mother, the fact that petitioner proffered no countervailing evidence, are preponderant evidence of paternity. They

cited the case of De Jesus v. Syquia16 where we held that a conceived child can be acknowledged because this is an act favorable to the child.17 They also argue that damages should be awarded because petitioner inveigled Clarissa to succumb to his sexual advances.18 Could paternity and filiation be resolved in an action for damages? On this score, we find petitioners stance unmeritorious. The caption is not determinative of the nature of a pleading. In a string of cases we made the following rulings. It is not the caption but the facts alleged which give meaning to a pleading. Courts are called upon to pierce the form and go into the substance thereof.19 In determining the nature of an action, it is not the caption, but the averments in the petition and the character of the relief sought, that are controlling.20 A perusal of the Complaint before the RTC shows that although its caption states "Damages coupled with SupportPendente Lite," Clarissas averments therein, her meeting with petitioner, his offer of a job, his amorous advances, her seduction, their trysts, her pregnancy, birth of her child, his letters, her demand for support for her child, all clearly establish a case for recognition of paternity. We have held that the due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing is, in itself, a consummated act of acknowledgement of the child, and no further court action is required. In fact, any authentic writing is treated not just a ground for compulsory recognition; it is in itself a voluntary recognition that does not require a separate action for judicial approval.21 The letters of petitioner marked as Exhibits "A" to "D" are declarations that lead nowhere but to the conclusion that he sired Verna Aiza. Although petitioner used an alias in these letters, the similarity of the penmanship in these letters vis the annotation at the back of petitioners fading photograph as a youth is unmistakable. Even an inexperienced eye will come to the conclusion that they were all written by one and the same person, petitioner, as found by the courts a quo. We also note that in his Memorandum, petitioner admitted his affair with Clarissa, the exchange of love letters between them, and his giving her money during her pregnancy. 22 Articles 172 and 175 of the Family Code are the rules for establishing filiation. They are as follows:

Art. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent. The letters, one of which is quoted above, are private handwritten instruments of petitioner which establish Verna Aizas filiation under Article 172 (2) of the Family Code. In addition, the array of evidence presented by respondents, the dates, letters, pictures and testimonies, to us, are convincing, and irrefutable evidence that Verna Aiza is, indeed, petitioners illegitimate child. Petitioner not only failed to rebut the evidence presented, he himself presented no evidence of his own. His bare denials are telling. Well-settled is the rule that denials, if unsubstantiated by clear and convincing evidence, are negative and self-serving which merit no weight in law and cannot be given greater evidentiary value over the testimony of credible witnesses who testify on affirmative matters.23 We, however, cannot rule that respondents are entitled to damages. Article 221924of the Civil Code which states moral damages may be recovered in cases of seduction is inapplicable in this case because Clarissa was already an adult at the time she had an affair with petitioner.

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Neither can her parents be entitled to damages. Besides, there is nothing in law or jurisprudence that entitles the parents of a consenting adult who begets a love child to damages. Respondents Constantino and Francisca Posada have not cited any law or jurisprudence to justify awarding damages to them. We, however, affirm the grant of attorneys fees in consonance with Article 2208 (2)25 and (11)26 of the New Civil Code. WHEREFORE, the assailed Decision dated May 30, 2003 and the Resolution dated August 27, 2003 of the Court of Appeals in CA-G.R. CV No. 50557 are AFFIRMED, with the MODIFICATION that the award of moral damages and exemplary damages be DELETED. SO ORDERED.

DECISION CARPIO MORALES, J.:

RAQUEL STO. TOMAS AQUINO. x x x. xxxx

For several months in 2005, then 21-year old petitioner Jenie San Juan Dela Cruz (Jenie) and then 19-year old Christian Dominique Sto. Tomas Aquino (Dominique) lived together as husband and wife without the benefit of marriage. They resided in the house of Dominiques parents Domingo B. Aquino and Raquel Sto. Tomas Aquino at Pulang-lupa, Dulumbayan, Teresa, Rizal. On September 4, 2005, Dominique died.[1] After almost two months, or on November 2, 2005, Jenie, who continued to live with Dominiques parents, gave birth to her herein copetitioner minor child Christian Dela Cruz Aquino at the Antipolo Doctors Hospital, Antipolo City.

Jenie applied for registration of the childs birth, using Dominiques LEONARDO A. QUISUMBING surname Aquino, with the Office of the City Associate Justice Civil Registrar, Antipolo City, in support of which she submitted the childs Certificate of Live Birth,[2] Affidavit to Use the Surname SECOND DIVISION of the Father[3] (AUSF) which she had executed and signed, and Affidavit of Acknowledgmentexecuted by Dominiques JENIE SAN JUAN G.R. No. 177728 father Domingo Butch Aquino.[4] Both DELA affidavits attested, inter alia, that during CRUZ and mino Present: the lifetime of Dominique, he had r continuously acknowledged his yet unborn CHRISTIAN DEL QUISUMBING, J., Chairperso child, and that his paternity had never been A CRUZ n, questioned. Jenie attached to the AUSF a AQUINO, CARPIO MORALES, document entitled AUTOBIOGRAPHY represented by CHICOwhich Dominique, during his lifetime, wrote JENIE SAN JUA NAZARIO, in his own handwriting, the pertinent N DELA LEONARDO-DE portions of which read: CRUZ, CASTRO, and PERALTA,* JJ. AQUINO, CHRISTIAN DOMINIQUE S.T. Petiti oners, AUTOBIOGRAPHY Promulgated: v e r s u s July 31, 2009 IM CHRISTIAN DOMINIQUE STO. TOMAS AQUINO, 19 YEARS OF AGE TURNING 20 THIS COMING OCTOBER 31, 2005.[5] I RESIDE AT PULANG-LUPA STREET BRGY. DULUMBAYAN, TERESA, RIZAL. I AM THE YOUNGEST IN OUR FAMILY. I HAVE ONE BROTHER NAMED JOSEPH BUTCH STO. TOMAS AQUINO. MY FATHERS NAME IS DOMINGO BUTCH AQUINO AND MY MOTHERS NAME IS

AS OF NOW I HAVE MY WIFE NAMED JENIE DELA CRUZ. WE MET EACH OTHER IN OUR HOMETOWN, TEREZA RIZAL. AT FIRST WE BECAME GOOD FRIENDS, THENWE FELL IN LOVE WITH EACH OTHER, THEN WE BECAME GOOD COUPLES. AND AS OF NOW SHE IS PREGNANT AND FOR THAT WE LIVE TOGETHER IN OUR HOUSE NOW. THATS ALL.[6] (Emphasis and underscoring supplied) By letter dated November 11, 2005,[7] the City Civil Registrar of Antipolo City, Ronald Paul S. Gracia (respondent), denied Jenies application for registration of the childs name in this wise: 7. Rule 7 of Administrative Order No. 1, Series of 2004 (Implementing Rules and Regulations of Republic Act No. 9255 *An Act Allowing Illegitimate Children to Use the Surname of their Father, Amending for the Purpose, Article 176 of Executive Order No. 209, otherwise Known as the Family Code of the Philippines+) provides that: Rule 7. Requirements for the Child to Use the Surname of the Father 7.1 For Births Not Yet Registered 7.1.1 The illegitimate child shall use the surname of the father if a public document is executed by the father, either at the back of the Certificate of Live Birth or in a separate document.

RONALD PAUL S. GRACIA, in his capacity as City Civil Registrar of Antipolo City, R espondent. x----------------------------------------x

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7.1.2 If admission of paternity is made through a private handwritten instrument, the child shall use the surname of the father, provided the registration is supported by the following documents: a. AUSF[8] b. Consent of the child, if 18 years old and over at the time of the filing of the document. c. Any two of the following documents showing clearly the paternity between the father and the child: 1. Employment records 2. SSS/GSIS records 3. Insur ance 4. C ertification of membership in any organization 5. S tatement of Assets and Liability 6. Income Return (ITR) Tax

injunction/registration of name against respondent before the Regional Trial Court of Antipolo City, docketed as SCA Case No. 06-539, which was raffled to Branch 73 thereof. The complaint alleged that, inter alia, the denial of registration of the childs name is a violation of his right to use the surname of his deceased father under Article 176 of the Family Code, as amended by Republic Act (R.A.) No. 9255,[10] which provides: Article 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove nonfiliation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. (Emphasis and underscoring supplied) They maintained that the Autobiography executed by Dominique constitutes an admission of paternity in a private handwritten instrument within the contemplation of the above-quoted provision of law. For failure to file a responsive pleading or answer despite service of summons, respondent was declared in default. Jenie thereupon presented evidence ex-parte. She testified on the circumstances of her common-law relationship with Dominique and affirmed

her declarations in her AUSF that during his lifetime, he had acknowledged his yet unborn child.[11] She offered Dominiques handwritten Autobiography (Exhibit A) as her documentary evidence-inchief.[12] Dominiques lone brother, Joseph Butch S.T. Aquino, also testified, corroborating Jenies declarations.[13] By Decision[14] of April 25, 2007, the trial court dismissed the complaint for lack of cause of action as the Autobiography was unsigned, citing paragraph 2.2, Rule 2 (Definition of Terms) of Administrative Order (A.O.) No. 1, Series of 2004 (the Rules and Regulations Governing the Implementation of R.A. 9255) which defines private handwritten document through which a father may acknowledge an illegitimate child as follows: 2.2 Privat e handwritten instrument an instrument executed in the handwriting of the father and duly signed by him where he expressly recognizes paternity to the child. (Underscoring supplied) The trial court held that even if Dominique was the author of the handwritten Autobiography, the same does not contain any express recognition of paternity. Hence, this direct resort to the Court via Petition for Review on Certiorari raising this purely legal issue of: WHETHER OR NOT THE UNSIGNED HANDWRITTEN STATEMENT OF THE DECEASED FATHER OF MINOR CHRISTIAN DELA CRUZ CAN BE CONSIDERED AS A RECOGNITION OF PATERNITY IN A PRIVATE HANDWRITTEN INSTRUMENT WITHIN THE CONTEMPLATION OF ARTICLE 176 OF THE FAMILY CODE, AS AMENDED BY R.A. 9255, WHICH ENTITLES THE SAID MINOR TO USE HIS FATHERS SURNAME.[15] (Under scoring supplied)

In summary, the child cannot use the surname of his father because he was born out of wedlock and the father unfortunately died prior to his birth and has no more capacity to acknowledge his paternity to the child (either through the back of Municipal Form No. 102 Affidavit of Acknowledgment/Ad mission of Paternity or the Authority to Use the Surname of the Father). (Underscoring supplied)

filed

Jenie and the child promptly a complaint[9] for

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Petitioners contend that Article 176 of the Family Code, as amended, does not expressly require that the private handwritten instrument containing the putative fathers admission of paternity must be signed by him. They add that the deceaseds handwritten Autobiography, though unsigned by him, is sufficient, for the requirement in the above-quoted paragraph 2.2 of the Administrative Order that the admission/recognition must be duly signed by the father is void as it unduly expanded the earlier-quoted provision of Article 176 of the Family Code.[16] Petitioners further contend that the trial court erred in not finding that Dominiques handwritten Autobiography contains a clear and unmistakable recognition of the childs paternity.[17] In its Comment, the Office of the Solicitor General (OSG) submits that respondents position, as affirmed by the trial court, is in consonance with the law and thus prays for the dismissal of the petition. It further submits that Dominiques Autobiography merely acknowledged Jenies pregnancy but not [his] paternity of the child she was carrying in her womb.[18] Article 176 of the Family Code, as amended by R.A. 9255, permits an illegitimate child to use the surname of his/her father if the latter had expressly recognized him/her as his offspring through the record of birth appearing in the civil register, or through an admission made in a public or private handwritten instrument. The recognition made in any of these documents is, in itself, a consummated act of acknowledgment of the childs paternity; hence, no separate action for judicial approval is necessary.[19] Article 176 of the Family Code, as amended, does not, indeed, explicitly state that the private handwritten instrument acknowledging the childs paternity must be signed by the putative father. This provision must, however, be read in conjunction with related provisions of the Family Code which require that recognition by the father must bear his signature, thus: Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. xxxx

Art. 172. The filiation of legitimate children is established by any of the following: ( 1) The record of birth appearing in the civil register or a final judgment; or ( 2) An admission of legitimate filiation in a public document or a private handwritt en instrumen t and signe d by the parent concerned . x x x x (Emphasis and underscoring supplied)

registration of the questioned recognition of the child.These circumstances indicating Dominiques paternity of the child give life to his statements in his Autobiography that JENIE DELA CRUZ is MY WIFE as WE FELL IN LOVE WITH EACH OTHER and NOW SHE IS PREGNANT AND FOR THAT WE LIVE TOGETHER. In Herrera v. Alba,[21] the Court summarized the laws, rules, and jurisprudence on establishing filiation, discoursing in relevant part:

Laws, Rules, and Jurisprudence Establishing Filiation The relevant provisions of the Family Code provide as follows: ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. xxxx ART. 172. The filiation of legitimate children is established by any of the following: (1) T he record of birth appearing in the civil register or a final judgment; or (2) A n admission of legitimate filiation in a public document or a private handwritt en instrumen t and signed by the parent concerned .

That a father who acknowledges paternity of a child through a written instrument must affix his signature thereon is clearly implied in Article 176 of the Family Code. Paragraph 2.2, Rule 2 of A.O. No. 1, Series of 2004, merely articulated such requirement; it did not unduly expand the import of Article 176 as claimed by petitioners. In the present case, however, special circumstances exist to hold that Dominiques Autobiography, though unsigned by him, substantially satisfies the requirement of the law. First, Dominique died about two months prior to the childs birth. Second, the relevant matters in the Autobiography, unquestionably handwritten by Dominique, correspond to the facts culled from the testimonial evidence Jenie proffered.[20] Third, Jenies testimony is corroborated by the Affidavit of Acknowledgment of Dominiques father Domingo Aquino and testimony of his brother Joseph Butch Aquino whose hereditary rights could be affected by the

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In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) T he open and continuou s possession of the status of a legitimate child; or (2) A ny other means allowed by the Rules of Court and special laws. The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130 provide: SEC. 39. Act or declaration about pedigree. The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. SEC. Family

reputation or tradition regarding pedigree. The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree. This Court's rulings further specify what incriminating acts are acceptable as evidence to establish filiation. In Pe Lim v. CA, a case petitioner often cites, we stated that the issue of paternity still has to be resolved by such conventional evidence as the relevant incriminating verbal and written acts by the putative father. Under Article 278 of the New Civil Code, voluntary recognition by a parent shall be made in the record of birth, a will, a statement before a court of record, or in any authentic writing. To be effective, the claim of filiation must be made by the putative father himself and the writing must be the writing of the putative father. A notarial agreement to support a child whose filiation is admitted by the putative father was considered acceptable evidence. Letters to the mother vowing to be a good father to

the child and pictures of the putative father cuddling the child on various occasions, together with the certificate of live birth, proved filiation. However, a student permanent record, a written consent to a father's operation, or a marriage contract where the putative father gave consent, cannot be taken as authentic writing. Standing alone, neither a certificate of baptism nor family pictures are sufficient to establish filiation. (Emphasis and underscoring supplied.)

In the case at bar, there is no dispute that the earlier quoted statements in Dominiques Autobiography have been made and written by him. Taken together with the other relevant facts extant herein that Dominique, during his lifetime, and Jenie were living together as common-law spouses for several months in 2005 at his parents house in Pulang-lupa, Dulumbayan, Teresa, Rizal; she was pregnant when Dominique died on September 4, 2005; and about two months after his death, Jenie gave birth to the child they sufficiently establish that the child of Jenie is Dominiques. In view of the pronouncements herein made, the Court sees it fit to adopt the following rules respecting the requirement of affixing the signature of the acknowledging parent in any private handwritten instrument wherein an admission of filiation of a legitimate or illegitimate child is made: 1) Where the private handwritten instrument is the lone piece of evidence submitted to prove filiation, there should be strict compliance with the requirement that the same must be signed by the acknowledging parent; and 2) Where the private handwritten instrument is accompanied by other relevant and competent evidence, it suffices that the claim of filiation therein be shown to have been made and handwritten by the acknowledging parent as it is merely corroborative of such other evidence. Our laws instruct that the welfare of the child shall be the paramount consideration in resolving questions affecting him.[22] Article 3(1) of the United

40.

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Nations Convention on the Rights of a Child of which the Philippines is a signatory is similarly emphatic: Article 3 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.[23] (Un derscoring supplied)

BEN-HUR NEPOMUCENO, Petitioner, vs. ARHBENCEL ANN LOPEZ, represented by her mother ARACELI LOPEZ, Respondent. DECISION CARPIO MORALES, J.: Respondent Arhbencel Ann Lopez (Arhbencel), represented by her mother Araceli Lopez (Araceli), filed a Complaint1 with the Regional Trial Court (RTC) of Caloocan City for recognition and support against Ben-Hur Nepomuceno (petitioner). Born on June 8, 1999, Arhbencel claimed to have been begotten out of an extramarital affair of petitioner with Araceli; that petitioner refused to affix his signature on her Certificate of Birth; and that, by a handwritten note dated August 7, 1999, petitioner nevertheless obligated himself to give her financial support in the amount ofP1,500 on the 15th and 30th days of each month beginning August 15, 1999. Arguing that her filiation to petitioner was established by the handwritten note, Arhbencel prayed that petitioner be ordered to: (1) recognize her as his child, (2) give her support pendente lite in the increased amount of P8,000 a month, and (3) give her adequate monthly financial support until she reaches the age of majority. Petitioner countered that Araceli had not proven that he was the father of Arhbencel; and that he was only forced to execute the handwritten note on account of threats coming from the National Peoples Army.2 By Order of July 4, 2001,3 Branch 130 of the Caloocan RTC, on the basis of petitioners handwritten note which it treated as "contractual support" since the issue of Arhbencels filiation had yet to be determined during the hearing on the merits, granted Arhbencels prayer for support pendente lite in the amount of P3,000 a month. After Arhbencel rested her case, petitioner filed a demurrer to evidence which the trial court granted by Order dated June 7, 2006,4 whereupon the case was dismissed for insufficiency of evidence. The trial court held that, among other things, Arhbencels Certificate of Birth was not prima facie evidence of her filiation to petitioner as it did not bear petitioners signature; that petitioners handwritten undertaking to provide support did not

contain a categorical acknowledgment that Arhbencel is his child; and that there was no showing that petitioner performed any overt act of acknowledgment of Arhbencel as his illegitimate child after the execution of the note. On appeal by Arhbencel, the Court of Appeals, by Decision of July 20, 2007,5 reversed the trial courts decision, declared Arhbencel to be petitioners illegitimate daughter and accordingly ordered petitioner to give Arhbencel financial support in the increased amount of P4,000 every 15th and 30th days of the month, or a total of P8,000 a month. The appellate court found that from petitioners payment of Aracelis hospital bills when she gave birth to Arhbencel and his subsequent commitment to provide monthly financial support, the only logical conclusion to be drawn was that he was Arhbencels father; that petitioner merely acted in bad faith in omitting a statement of paternity in his handwritten undertaking to provide financial support; and that the amount of P8,000 a month was reasonable for Arhbencels subsistence and not burdensome for petitioner in view of his income. His Motion for Reconsideration having been denied by Resolution dated January 3, 2008,6 petitioner comes before this Court through the present Petition for Review on Certiorari.7 Petitioner contends that nowhere in the documentary evidence presented by Araceli is an explicit statement made by him that he is the father of Arhbencel; that absent recognition or acknowledgment, illegitimate children are not entitled to support from the putative parent; that the supposed payment made by him of Aracelis hospital bills was neither alleged in the complaint nor proven during the trial; and that Arhbencels claim of paternity and filiation was not established by clear and convincing evidence. Arhbencel avers in her Comment that petitioner raises questions of fact which the appellate court had already addressed, along with the issues raised in the present petition.8 The petition is impressed with merit. The relevant provisions of the Family Code9 that treat of the right to support are Articles 194 to 196, thus: Article 194. Support compromises everything indispensable for sustenance, dwelling, clothing, medical attendance,

It is thus (t)he policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation of children, especially of illegitimate children x x x.[24] Too, (t)he State as parens patriae affords special protection to children from abuse, exploitation and other conditions prejudicial to their development.[25]

In the eyes of society, a child with an unknown father bears the stigma of dishonor. It is to petitioner minor childs best interests to allow him to bear the surname of the now deceased Dominique and enter it in his birth certificate. WHEREFORE, the petition is GRANTED. The City Civil Registrar of Antipolo City is DIRECTED to immediately enter the surname of the late Christian Dominique Sto. Tomas Aquino as the surname of petitioner minor Christian dela Cruz in his Certificate of Live Birth, and record the same in the Register of Births. SO ORDERED.

CONCHITA CARPIO MORALES Associate Justice

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 181258 March 18, 2010

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education and transportation, in keeping with the financial capacity of the family.1awph!1 The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work. Article 195. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article: 1. The spouses; 2. Legitimate ascendants and descendants; 3. Parents and their legitimate children and the legitimate and illegitimate children of the latter; 4. Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and 5. Legitimate brothers and sisters, whether of the full or half-blood. Article 196. Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to support each other to the full extent set forth in Article 194, except only when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimant's fault or negligence. (emphasis and underscoring supplied) Arhbencels demand for support, being based on her claim of filiation to petitioner as his illegitimate daughter, falls under Article 195(4). As such, her entitlement to support from petitioner is dependent on the determination of her filiation. Herrera v. Alba10 summarizes the laws, rules, and jurisprudence on establishing filiation, discoursing in relevant part as follows: Laws, Rules, and Jurisprudence Establishing Filiation

The relevant provisions of the Family Code provide as follows: ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. xxxx ART. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130 provide: SEC. 39. Act or declaration about pedigree. The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. SEC. 40. Family reputation or tradition regarding pedigree. The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engraving on rings, family portraits and the

like, may be received as evidence of pedigree. This Court's rulings further specify what incriminating acts are acceptable as evidence to establish filiation. In Pe Lim v. CA, a case petitioner often cites, we stated that the issue of paternity still has to be resolved by suchconventional evidence as the relevant incriminating verbal and written acts by the putative father. Under Article 278 of the New Civil Code, voluntary recognition by a parent shall be made in the record of birth, a will, a statement before a court of record, or in any authentic writing. To be effective, the claim of filiation must be made by the putative father himself and the writing must be the writing of the putative father. A notarial agreement to support a child whose filiation is admitted by the putative father was considered acceptable evidence. Letters to the mother vowing to be a good father to the child and pictures of the putative father cuddling the child on various occasions, together with the certificate of live birth, proved filiation. However, a student permanent record, a written consent to a father's operation, or a marriage contract where the putative father gave consent, cannot be taken as authentic writing. Standing alone, neither a certificate of baptism nor family pictures are sufficient to establish filiation. (emphasis and underscoring supplied) In the present case, Arhbencel relies, in the main, on the handwritten note executed by petitioner which reads: Manila, Aug. 7, 1999 I, Ben-Hur C. Nepomuceno, hereby undertake to give and provide financial support in the amount of P1,500.00 every fifteen and thirtieth day of each month for a total of P3,000.00 a month starting Aug. 15, 1999, to Ahrbencel Ann Lopez, presently in the custody of her mother Araceli Lopez without the necessity of demand, subject to adjustment later depending on the needs of the child and my income. The abovequoted note does not contain any statement whatsoever about Arhbencels filiation to petitioner. It is, therefore, not within the ambit of Article 172(2) vis--vis Article 175 of the Family Code which admits as competent evidence of illegitimate filiation an admission of filiation in a private handwritten instrument signed by the parent concerned. The note cannot also be accorded the same weight as the notarial agreement to support the child referred to in Herrera. For it is not even notarized. And Herrera instructs that the notarial agreement must

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be accompanied by the putative fathers admission of filiation to be an acceptable evidence of filiation. Here, however, not only has petitioner not admitted filiation through contemporaneous actions. He has consistently denied it. The only other documentary evidence submitted by Arhbencel, a copy of her Certificate of Birth,11 has no probative value to establish filiation to petitioner, the latter not having signed the same. At bottom, all that Arhbencel really has is petitioners handwritten undertaking to provide financial support to her which, without more, fails to establish her claim of filiation. The Court is mindful that the best interests of the child in cases involving paternity and filiation should be advanced. It is, however, just as mindful of the disturbance that unfounded paternity suits cause to the privacy and peace of the putative fathers legitimate family. WHEREFORE, the petition is GRANTED. The Court of Appeals Decision of July 20, 2007 is SET ASIDE. The Order dated June 7, 2006 of Branch 130 of the Caloocan City RTC dismissing the complaint for insufficiency of evidence is REINSTATED. SO ORDERED. CONCHITA CARPIO MORALES Associate Justice G.R. No. 165166 August 15, 2012

support pendente lite, claiming that the petitioner is the father of her child Gliffze.4 In his answer, the petitioner denied the imputed paternity of Gliffze.5 For the parties failure to amicably settle the dispute, the RTC terminated the pre-trial proceedings.6 Trial on the merits ensued. The respondent testified for herself and presented Rodulfo Lopez as witness. Evidence for the respondent showed that she met the petitioner on December 1, 1992 at the Philippine Commercial and Industrial Bank, Maasin, Southern Leyte branch where she had been hired as a casual employee, while the petitioner worked as accounting supervisor.7 The petitioner started courting the respondent in the third week of December 1992 and they became sweethearts in the last week of January 1993.8 The petitioner gave the respondent greeting cards on special occasions, such as on Valentines Day and her birthday; she reciprocated his love and took care of him when he was ill.9 Sometime in September 1993, the petitioner started intimate sexual relations with the respondent in the formers rented room in the boarding house managed by Rodulfo, the respondents uncle, on Tomas Oppus St., Agbao, Maasin, Southern Leyte.10 The petitioner rented the room from March 1, 1993 to August 30, 1994.11 The sexual encounters occurred twice a month and became more frequent in June 1994; eventually, on August 8, 1994, the respondent found out that she was pregnant.12 When told of the pregnancy, the petitioner was happy and made plans to marry the respondent.13 They in fact applied for a marriage license.14 The petitioner even inquired about the costs of a wedding reception and the bridal gown.15 Subsequently, however, the petitioner backed out of the wedding plans.16 The respondent responded by filing a complaint with the Municipal Trial Court of Maasin, Southern Leyte for damages against the petitioner for breach of promise to marry.17 Later, however, the petitioner and the respondent amicably settled the case.18 The respondent gave birth to their son Gliffze on March 9, 1995.19 When the petitioner did not show up and failed to provide support to Gliffze, the respondent sent him a letter on July 24, 1995 demanding recognition of and support for their child.20 When the petitioner did not answer the demand, the respondent filed her complaint for compulsory recognition and support pendente lite.21

The petitioner took the witness stand and testified for himself. He denied the imputed paternity,22 claiming that he first had sexual contact with the respondent in the first week of August 1994 and she could not have been pregnant for twelve (12) weeks (or three (3) months) when he was informed of the pregnancy on September 15, 1994.23 During the pendency of the case, the RTC, on the respondents motion,24 granted a P2,000.00 monthly child support, retroactive from March 1995.25 THE RTC RULING In its June 25, 2002 decision, the RTC dismissed the complaint for insufficiency of evidence proving Gliffzes filiation. It found the respondents testimony inconsistent on the question of when she had her first sexual contact with the petitioner, i.e., "September 1993" in her direct testimony while "last week of January 1993" during her cross-testimony, and her reason for engaging in sexual contact even after she had refused the petitioners initial marriage proposal. It ordered the respondent to return the amount of support pendente lite erroneously awarded, and to pay P10,000.00 as attorneys fees.26 The respondent appealed the RTC ruling to the CA.27 THE CA RULING In its March 5, 2004 decision, the CA departed from the RTC's appreciation of the respondents testimony, concluding that the latter merely made an honest mistake in her understanding of the questions of the petitioners counsel. It noted that the petitioner and the respondent had sexual relationship even before August 1994; that the respondent had only one boyfriend, the petitioner, from January 1993 to August 1994; and that the petitioners allegation that the respondent had previous relationships with other men remained unsubstantiated. The CA consequently set aside the RTC decision and ordered the petitioner to recognize his minor son Gliffze. It also reinstated the RTC order granting a P2,000.00 monthly child support.28 When the CA denied29 the petitioners motion for reconsideration,30 the petitioner filed the present petition for review on certiorari. THE PETITION

CHARLES GOTARDO, Petitioner, vs. DIVINA BULING, Respondent. DECISION BRION, J.: We resolve the petition for review on certiorari, 1 filed by petitioner Charles Gotardo, to challenge the March 5, 2004 decision2 and the July 27, 2004 resolution3 of the Court of Appeals (CA) in CA GR CV No. 76326. The CA decision ordered the petitioner to recognize and provide legal support to his minor son, Gliffze 0. Buling. The CA resolution denied the petitioner's subsequent motion for reconsideration. FACTUAL BACKGROUND On September 6, 1995, respondent Divina Buling filed a complaint with the Regional Trial Court (RTC) of Maasin, Southern Leyte, Branch 25, for compulsory recognition and

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The petitioner argues that the CA committed a reversible error in rejecting the RTCs appreciation of the respondents testimony, and that the evidence on record is insufficient to prove paternity. THE CASE FOR THE RESPONDENT The respondent submits that the CA correctly explained that the inconsistency in the respondents testimony was due to an incorrect appreciation of the questions asked, and that the record is replete with evidence proving that the petitioner was her lover and that they had several intimate sexual encounters during their relationship, resulting in her pregnancy and Gliffzes birth on March 9, 1995. THE ISSUE The sole issue before us is whether the CA committed a reversible error when it set aside the RTCs findings and ordered the petitioner to recognize and provide legal support to his minor son Gliffze. OUR RULING We do not find any reversible error in the CAs ruling. We have recognized that "[f]iliation proceedings are usually filed not just to adjudicate paternity but also to secure a legal right associated with paternity, such as citizenship, support (as in this case) or inheritance. [In paternity cases, the burden of proof] is on the person who alleges that the putative father is the biological father of the child."31 One can prove filiation, either legitimate or illegitimate, through the record of birth appearing in the civil register or a final judgment, an admission of filiation in a public document or a private handwritten instrument and signed by the parent concerned, or the open and continuous possession of the status of a legitimate or illegitimate child, or any other means allowed by the Rules of Court and special laws.32 We have held that such other proof of one's filiation may be a "baptismal certificate, a judicial admission, a family bible in which [his] name has been entered, common reputation respecting [his] pedigree, admission by silence, the [testimonies] of witnesses, and other kinds of proof [admissible] under Rule 130 of the Rules of Court."33 In Herrera v. Alba,34 we stressed that there are four significant procedural aspects of a traditional paternity action that parties have to face: a prima facie case, affirmative

defenses, presumption of legitimacy, and physical resemblance between the putative father and the child.35 We explained that a prima facie case exists if a woman declares supported by corroborative proof that she had sexual relations with the putative father; at this point, the burden of evidence shifts to the putative father.36 We explained further that the two affirmative defenses available to the putative father are: (1) incapability of sexual relations with the mother due to either physical absence or impotency, or (2) that the mother had sexual relations with other men at the time of conception.37 In this case, the respondent established a prima facie case that the petitioner is the putative father of Gliffze through testimony that she had been sexually involved only with one man, the petitioner, at the time of her conception.38 Rodulfo corroborated her testimony that the petitioner and the respondent had intimate relationship.391wphi1 On the other hand, the petitioner did not deny that he had sexual encounters with the respondent, only that it occurred on a much later date than the respondent asserted, such that it was physically impossible for the respondent to have been three (3) months pregnant already in September 1994 when he was informed of the pregnancy.40 However, the petitioner failed to substantiate his allegations of infidelity and insinuations of promiscuity. His allegations, therefore, cannot be given credence for lack of evidentiary support.1wphi1 The petitioners denial cannot overcome the respondents clear and categorical assertions. The petitioner, as the RTC did, made much of the variance between the respondents direct testimony regarding their first sexual contact as "sometime in September 1993" and her cross-testimony when she stated that their first sexual contact was "last week of January 1993," as follows: ATTY. GO CINCO: When did the defendant, according to you, start courting you? A Q A Third week of December 1992. And you accepted him? Last week of January 1993.

COURT: What do you mean by accepting? A I accepted his offer of love.41

We find that the contradictions are for the most part more apparent than real, having resulted from the failure of the respondent to comprehend the question posed, but this misunderstanding was later corrected and satisfactorily explained. Indeed, when confronted for her contradictory statements, the respondent explained that that portion of the transcript of stenographic notes was incorrect and she had brought it to the attention of Atty. Josefino Go Cinco (her former counsel) but the latter took no action on the matter.42 Jurisprudence teaches that in assessing the credibility of a witness, his testimony must be considered in its entirety instead of in truncated parts. The technique in deciphering a testimony is not to consider only its isolated parts and to anchor a conclusion based on these parts. "In ascertaining the facts established by a witness, everything stated by him on direct, cross and redirect examinations must be calibrated and considered."43 Evidently, the totality of the respondent's testimony positively and convincingly shows that no real inconsistency exists. The respondent has consistently asserted that she started intimate sexual relations with the petitioner sometime in September 1993.44 Since filiation is beyond question, support follows as a matter of obligation; a parent is obliged to support his child, whether legitimate or illegitimate.45 Support consists of everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.46Thus, the amount of support is variable and, for this reason, no final judgment on the amount of support is made as the amount shall be in proportion to the resources or means of the giver and the necessities of the recipient.47It may be reduced or increased proportionately according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to support.48 In this case, we sustain the award of P2,000.00 monthly child support, without prejudice to the filing of the proper motion in the RTC for the determination of any support in arrears, considering the needs of the child, Gliffze, during the pendency of this case. WHEREFORE, we hereby DENY the petition for lack of merit. The March 5, 2004 decision and the July 27, 2004 resolution of

Q And by October you already had your sexual intercourse? A Last week of January 1993.

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the Court of Appeals in CA GR CV No. 76326 are hereby AFFIRMED. Costs against the petitioner. SO ORDERED. ARTURO D. BRION Associate Justice G.R. No. 172471 2012 November 12,

1992 with various suits by insisting that Randy is his son, Antonio sought moral and exemplary damages by way of counterclaim from respondents. During trial, Mirasol testified that from 1981 to 1983, she lived in Upper Bicutan, Taguig where Antonio was a neighbor.8 In the first week of January 1981, Antonio courted her9 and eventually became her first boyfriend.10Antonio would then visit her everyday until 1982.11 Upon clarificatory question by the court whether she and Antonio eventually lived together as husband and wife, Mirasol answered that they were just sweethearts.12 When Mirasol became pregnant in 1983, Antonio assured her that he would support her.13 Eventually, however, Antonio started to evade her.14 Mirasol last saw Antonio in 1983 but could not remember the particular month.15 On November 11, 1983, Mirasol gave birth to Randy.16 She presented Randys Certificate of Live Birth17 and Baptismal Certificate18 indicating her and Antonio as parents of the child. Mirasol testified that she and Antonio supplied the information in the said certificates.19 Antonio supplied his name and birthplace after Erlinda Balmori (Erlinda), the "hilot" who assisted in Mirasols delivery of Randy, went to his house to solicit the said information.20Mirasol also claimed that it was Erlinda who supplied the date and place of marriage of the parents so that the latter can file the birth certificate.21 Mirasol likewise confirmed that she is the same "Mirasol Perla" who signed as the informant therein.22 Next to take the witness stand was Randy who at that time was just 15 years old.23 Randy claimed that he knew Antonio to be the husband of her mother and as his father.24 He recounted having met him for the first time in 1994 in the house of his Aunt Lelita, Antonios sister, where he was vacationing.25 During their encounter, Randy called Antonio "Papa" and kissed his hand while the latter hugged him.26 When Randy asked him for support, Antonio promised that he would support him.27 Randy further testified that during his one-week stay in his Aunt Lelitas place, the latter treated him as member of the family.28 For her part, Aurora Ducay testified that she knew both Mirasol and Antonio as they were neighbors in Upper Bicutan, Taguig. Presently, Antonio is still her neighbor in the said place.29 According to her, she knew of Mirasols and Antonios relationship because aside from seeing Antonio frequenting the house of Mirasol, she asked

Antonio about it.30 She further narrated that the two have a son named Randy31 and that Antonios mother even tried to get the child from Mirasol.32 Testifying as an adverse witness for the respondents, Antonio admitted having sexual intercourse with Mirasol in February and August33 of 1981.34 When shown with Randys Certificate of Live Birth and asked whether he had a hand in the preparation of the same, Antonio answered in the negative.35 Testifying for himself, Antonio denied having courted Mirasol on January 5, 1981 because during that time, he was studying in Iloilo City. He graduated from the Iloilo Maritime Academy in March of 198136 as shown by his diploma.37 It was only in May 1981 or after his graduation that he came to Manila. Further, he denied having any relationship with Mirasol.38 He claimed that he had sexual intercourse with Mirasol only once which happened in the month of September or October of 1981.39 Antonio came to know that he was being imputed as the father of Randy only when Mirasol charged him with abandonment of minor in 1994, which was also the first time he saw Randy.40 Prior to that, neither Mirasol nor her sister, Norma, whom he met a few times told him about the child.41 Anent Randys Certificate of Live Birth, Antonio testified as to several inaccuracies in the entries thereon. According to him, his middle initial is "E" and not "A" as appearing in the said certificate of live birth.42 Also, he is not a protestant and a laborer as indicated in said certificate.43 Antonio likewise alleged that Mirasol only made up the entries with respect to their marriage on October 28, 1981.44 Daisy Balmori Rodriguez (Daisy), for her part, testified that she came to know Mirasol through her mother Erlinda who was the "hilot" when Mirasol gave birth to Randy.45 She narrated that her mother asked Mirasol the details to be entered in the childs Certificate of Live Birth such as the names of the parents, date and place of marriage, and the intended name of the child.46 Her mother also told her that Mirasols son has no acknowledged father.47Daisy likewise claimed that Mirasol later left to her care the then infant Randy until Mirasol took him away without permission when the child was almost five years old.48 Ruling of the Regional Trial Court

ANTONIO PERLA, Petitioner, vs. MIRASOL BARING and RANDY PERLA, Respondents. DECISION DEL CASTILLO, J.: "An order for x x x support x x x must be issued only if paternity or filiation is established by clear and convincing evidence."1 Assailed in this Petition for Review on Certiorari2 is the March 31, 2005 Decision3 of the Court of Appeals (CA) in CAG.R. CV No. 79312 which dismissed petitioner Antonio Perlas (Antonio) appeal from the February 26, 2003 Decision4 of the Regional Trial Court (RTC) of Antipolo City, Branch 71 in Civil Case No. 96-3952, ordering him to give monthly support to respondent Randy Perla (Randy). Likewise assailed is the CAs May 5, 2006 Resolution5denying the motion for reconsideration thereto. Factual Antecedents Respondent Mirasol Baring (Mirasol) and her then minor son, Randy (collectively respondents), filed before the RTC a Complaint6 for support against Antonio. They alleged in said Complaint that Mirasol and Antonio lived together as common-law spouses for two years. As a result of said cohabitation, Randy was born on November 11, 1983. However, when Antonio landed a job as seaman, he abandoned them and failed to give any support to his son. Respondents thus prayed that Antonio be ordered to support Randy. In his Answer with Counterclaim,7 Antonio, who is now married and has a family of his own, denied having fathered Randy. Although he admitted to having known Mirasol, he averred that she never became his common-law wife nor was she treated as such. And since Mirasol had been intimidating and pestering him as early as

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After trial, the RTC rendered a Decision49 dated February 26, 2003 ordering Antonio to support Randy. The RTC ruled that Mirasol and Randy are entitled to the relief sought since Antonio himself admitted that he had sex with Mirasol. It also noted that when the 15-year old Randy testified, he categorically declared Antonio as his father. The RTC opined that Mirasol would not have gone through the trouble of exposing herself to humiliation, shame and ridicule of public trial if her allegations were untrue. Antonios counterclaim was denied due to the absence of bad faith or ill-motive on the part of Mirasol and Randy. The dispositive portion of the RTC Decision reads: WHEREFORE, judgment is hereby rendered in favor of the plaintiff Randy Perla and against the defendant Antonio Perla, ordering the latter to give a reasonable monthly support of P5,000.00 to Randy Perla for his sustenance and support to be given to him from the time of the filing of this Complaint. Defendants counterclaim is DISMISSED. SO ORDERED.50 Antonio filed a Notice of Appeal51 which was given due course by the RTC.52 Ruling of the Court of Appeals In its Decision53 of March 31, 2005, the CA upheld Randys illegitimate filiation based on the certified true copies of his birth certificate and of his baptismal certificate identifying Antonio as his father. According to the appellate court, while these documents do not bear the signature of Antonio, they are proofs that Antonio is the known, imputed and identified father of Randy. The CA also affirmed the trial courts findings on the credibility of the witnesses and its appreciation of facts, as there was nothing to suggest that the RTC erred in such respects. It highlighted Antonios vacillation in his testimony regarding the number of times he had sex with Mirasol and concluded that the same is a clear badge of his lack of candor - a good reason to disregard his denials. Thus: WHEREFORE, the appeal is DISMISSED and the appealed Decision is AFFIRMED. SO ORDERED.54

Antonio filed a Motion for Reconsideration55 which was denied by the CA in its Resolution56 of May 5, 2006. Hence, this Certiorari. Issue The pivotal issue to be resolved in this case is whether the lower courts correctly ordered Antonio to support Randy. Our Ruling There is merit in the petition. A re-examination of the factual findings of the RTC and the CA is proper in this case. "Generally, factual findings of trial courts, when affirmed by the CA, are binding on this Court."57 However, this rule admits of certain exceptions such as when the finding is grounded entirely on speculations, surmises or conjectures or when the judgment of the CA is based on misapprehension of facts.58 As this case falls under these exceptions, the Court is constrained to re-examine the factual findings of the lower courts. Since respondents complaint for support is anchored on Randys alleged illegitimate filiation to Antonio, the lower courts should have first made a determination of the same. Respondents Complaint for support is based on Randys alleged illegitimate filiation to Antonio. Hence, for Randy to be entitled for support, his filiation must be established with sufficient certainty. A review of the Decision of the RTC would show that it is bereft of any discussion regarding Randys filiation. Although the appellate court, for its part, cited the applicable provision on illegitimate filiation, it merely declared the certified true copies of Randys birth certificate and baptismal certificate both identifying Antonio as the father as good proofs of his filiation with Randy and nothing more. This is despite the fact that the said documents do not bear Antonios signature. "Time and again, this Court has ruled that a high standard of proof is required to establish paternity and filiation. An order for x x x support may create an unwholesome situation or may be an irritant to the family or the lives of the parties so that it must be issued only if paternity or filiation is established by clear and convincing evidence."59 Petition for Review on

Respondents failed to establish Randys illegitimate filiation to Antonio. The rules for establishing filiation are found in Articles 172 and 175 of the Family Code which provide as follows: Article 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. xxxx Article 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. xxxx Respondents presented the Certificate of Live Birth of Randy identifying Antonio as the father. However, said certificate has no probative value to establish Randys filiation to Antonio since the latter had not signed the same.60 It is settled that "a certificate of live birth purportedly identifying the putative father is not competent evidence of paternity when there is no showing that the putative father had a hand in the preparation of said certificate."61 We also cannot lend credence to Mirasols claim that Antonio supplied certain information through Erlinda. Aside from Antonios denial in having any participation in the preparation of the document as well as the absence of his signature thereon, respondents did not present Erlinda to confirm that Antonio indeed supplied certain entries in Randys birth certificate. Besides, the several unexplained discrepancies in Antonios personal circumstances as reflected in the subject birth certificate are manifestations of Antonios non-participation in its preparation. Most important, it was Mirasol who signed as informant thereon which she confirmed on the witness stand.

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Neither does the testimony of Randy establish his illegitimate filiation. That during their first encounter in 1994 Randy called Antonio "Papa" and kissed his hand while Antonio hugged him and promised to support him; or that his Aunt Lelita treated him as a relative and was good to him during his one-week stay in her place, cannot be considered as indications of Randys open and continuous possession of the status of an illegitimate child under the second paragraph of Article 172(1). "[T]o prove open and continuous possession of the status of an illegitimate child, there must be evidence of the manifestation of the permanent intention of the supposed father to consider the child as his, by continuous and clear manifestations of parental affection and care, which cannot be attributed to pure charity.1wphi1 Such acts must be of such a nature that they reveal not only the conviction of paternity, but also the apparent desire to have and treat the child as such in all relations in society and in life, not accidentally, but continuously."62 Here, the single instance that Antonio allegedly hugged Randy and promised to support him cannot be considered as proof of continuous possession of the status of a child. To emphasize, "*t+he fathers conduct towards his son must be spontaneous and uninterrupted for this ground to exist."63 Here, except for that singular occasion in which they met, there are no other acts of Antonio treating Randy as his son.64Neither can Antonios paternity be deduced from how his sister Lelita treated Randy. To this Court, Lelitas actuations could have been done due to charity or some other reasons. Anent Randys baptismal certificate, we cannot agree with the CA that the same is a good proof of Antonios paternity of Randy. Just like in a birth certificate, the lack of participation of the supposed father in the preparation of a baptismal certificate renders this document incompetent to prove paternity.65 And "while a baptismal certificate may be considered a public document, it can only serve as evidence of the administration of the sacrament on the date specified but not the veracity of the entries with respect to the childs paternity. Thus, x x x baptismal certificates are per se inadmissible in evidence as proof of filiation and they cannot be admitted indirectly as circumstantial evidence to prove the same."66 This Court cannot likewise agree with the RTCs conclusion that Antonio fathered Randy merely on the basis of his admission that he had sexual encounters with Mirasol. Neither does it agree with the CA that the inconsistencies in Antonios testimony with regard to the number of times he had sexual intercourse with Mirasol are good

reasons to disregard his denials and uphold the respondents claims. It is well to stress that as plaintiff, Mirasol has the burden of proving her affirmative allegation that Antonio is the father of her son Randy.67 She must rely on the strength of her evidence and not on the weakness of the defense.68 As Randy was born on November 11, 1983, it was incumbent upon Mirasol to prove that she had sexual intercourse with Antonio prior to the usual period of pregnancy or nine months before the birth of Randy. This crucial period therefore is during the early part of the first quarter of 1983. However, nothing from Mirasols testimony indicates that she had sexual intercourse with Antonio during that time. She merely testified that she last met with Antonio in 1983 but could not remember the particular month.69 Plainly, this hardly means anything not only because it was not established that the said meeting took place during that crucial period but also because Mirasol never mentioned that they had sexual contact during their meeting. Antonios admission of sexual intercourse with Mirasol does not likewise by any means strengthen respondents theory that he fathered Randy. When Antonio testified as an adverse witness for the respondents, he stated that he had sexual intercourse with Mirasol in February and August of 1981. Later testifying as witness for his own behalf, he mentioned that he had a one night affair with Mirasol which happened in the month of September or October of 1981. Assuming that he indeed had sexual contact with Mirasol on the dates mentioned, still, none of these sexual congresses could have led to the conception of Randy who was born two years later in 1983. All told, it is clear that respondents failed to establish Randys illegitimate filiation to Antonio. Hence, the order for Antonio to support Randy has no basis. WHEREFORE, the Petition for Review on Certiorari is GRANTED. The assailed Decision dated March 31, 2005 and Resolution dated May 5, 2006 of the Court of Appeals in CA-G.R. CV No. 79312 are REVERSED and SER ASIDE and the Decision dated February 26, 2003 of the Regional Trial Court of Antipolo City, Branch 71, in Civil Case No. 96-3952 is VACATED. A new one is entered DISMISSING the Complaint for Support filed by Mirasol Baring and Randy Perla against Antonio Perla. SO ORDERED.

MARIANO C. DEL CASTILLO Associate Justice

ADOPTION Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 164948 June 27, 2006

DIWATA RAMOS LANDINGIN Petitioner, vs. REPUBLIC OF THE PHILIPPINES, Respondent. DECISION CALLEJO, SR., J.: Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is the Decision1 of the Court of Appeals in CA-G.R. CV No. 77826 which reversed the Decision2 of the Regional Trial Court (RTC) of Tarlac City, Branch 63 in Civil Case No. 2733 granting the Petition for Adoption of the petitioner herein. The Antecedents On February 4, 2002, Diwata Ramos Landingin, a citizen of the United States of America (USA), of Filipino parentage and a resident of Guam, USA, filed a petition3 for the adoption of minors Elaine Dizon Ramos who was born on August 31, 1986;4 Elma Dizon Ramos, who was born on September 7, 1987;5 and Eugene Dizon Ramos who was born on August 5, 1989.6 The minors are the natural children of Manuel Ramos, petitioners brother, and Amelia Ramos. Landingin, as petitioner, alleged in her petition that when Manuel died on May 19, 1990,7 the children were left to their paternal grandmother, Maria Taruc Ramos; their biological mother, Amelia, went to Italy, re-married there and now has two children by her second marriage and no longer communicated with her children by Manuel Ramos nor with her in-laws from the time she left up to the institution of the adoption; the minors are being financially supported by the petitioner and her children, and relatives abroad; as Maria passed away on November 23, 2000, petitioner desires to adopt the children; the minors have given their written consent8 to the adoption; she is qualified to adopt as shown by the fact that she is a 57-year-old

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widow, has children of her own who are already married, gainfully employed and have their respective families; she lives alone in her own home in Guam, USA, where she acquired citizenship, and works as a restaurant server. She came back to the Philippines to spend time with the minors; her children gave their written consent9 to the adoption of the minors. Petitioners brother, Mariano Ramos, who earns substantial income, signified his willingness and commitment to support the minors while in petitioners custody. Petitioner prayed that, after due hearing, judgment be rendered in her favor, as follows: WHEREFORE, it is most respectfully prayed to this Honorable Court that after publication and hearing, judgment be rendered allowing the adoption of the minor children Elaine Dizon Ramos, Elma Dizon Ramos, and Eugene Dizon Ramos by the petitioner, and ordering that the minor childrens name follow the family name of petitioner. Petitioner prays for such other reliefs, just and equitable under the premises.10 On March 5, 2002, the court ordered the Department of Social Welfare and Development (DSWD) to conduct a case study as mandated by Article 34 of Presidential Decree No. 603, as amended, and to submit a report thereon not later than April 4, 2002, the date set for the initial hearing of the petition.11 The Office of the Solicitor General (OSG) entered its appearance12 but deputized the City Prosecutor of Tarlac to appear in its behalf.13 Since her petition was unopposed, petitioner was allowed to present her evidence ex parte.14 The petitioner testified in her behalf. She also presented Elaine Ramos, the eldest of the adoptees, to testify on the written consent executed by her and her siblings.15 The petitioner marked in evidence the Affidavit of Consent purportedly executed by her children Ann, Errol, Dennis and Ricfel Branitley, all surnamed Landingin, and notarized by a notary public in Guam, USA, as proof of said consent.16 On May 24, 2002, Elizabeth Pagbilao, Social Welfare Officer II of the DSWD, Field Office III, Tarlac, submitted a Child Study Report, with the following recommendation: In view of the foregoing, undersigned finds minors Elaine, Elma & Eugene all surnamed Ramos, eligible for adoption because of the following reasons:

1. Minors surviving parent, the mother has voluntarily consented to their adoption by the paternal aunt, Diwata Landingin this is in view of her inability to provide the parental care, guidance and support they need. An Affidavit of Consent was executed by the mother which is hereto attached. 2. The three minors subject for adoption have also expressed their willingness to be adopted and joins the petitioners in Guam, USA in the future. A joint Affidavit of consent is hereto attached. The minors developed close attachment to the petitioners and they regarded her as second parent. 3. The minors are present under the care of a temporary guardian who has also family to look after. As young adolescents they really need parental love, care, guidance and support to ensure their protection and well being. In view of the foregoing, it is hereby respectfully recommended that minors Elaine D. Ramos, Elma D. Ramos and Eugene D. Ramos be adopted by their maternal aunt Diwata Landingin. Trial custody is hereby further recommended to be dispensed with considering that they are close relatives and that close attachments was already developed between the petitioner and the 3 minors.17 Pagbilao narrated what transpired during her interview, as follows: The mother of minors came home together with her son John Mario, this May 2002 for 3 weeks vacation. This is to enable her appear for the personal interview concerning the adoption of her children. The plan for the adoption of minors by their paternal aunt Diwata Landingin was conceived after the death of their paternal grandmother and guardian. The paternal relatives including the petitioner who attended the wake of their mother were very much concerned about the well-being of the three minors. While preparing for their adoption, they have asked a cousin who has a family to stay with minors and act as their temporary guardian. The mother of minors was consulted about the adoption plan and after weighing the benefits of adoption to her children, she voluntarily consented. She realized that her children need parental love, guidance and

support which she could not provide as she already has a second family & residing in Italy. Knowing also that the petitioners & her children have been supporting her children up to the present and truly care for them, she believes her children will be in good hands. She also finds petitioners in a better position to provide a secured and bright future to her children.18 However, petitioner failed to present Pagbilao as witness and offer in evidence the voluntary consent of Amelia Ramos to the adoption; petitioner, likewise, failed to present any documentary evidence to prove that Amelia assents to the adoption. On November 23, 2002, the court, finding merit in the petition for adoption, rendered a decision granting said petition. The dispositive portion reads: WHEREFORE, it is hereby ordered that henceforth, minors Elaine Dizon Ramos, Elma Dizon Ramos, Eugene Dizon Ramos be freed from all legal obligations obedience and maintenance from their natural parents and that they be declared for all legal intents and purposes the children of Diwata Ramos Landingin. Trial custody is dispensed with considering that parent-children relationship has long been established between the children and the adoptive parents. Let the surnames of the children be changed from "Dizon-Ramos" to "Ramos-Landingin." Let a copy of this decision be furnished the Local Civil Registrar of Tarlac, Tarlac for him to effect the corresponding changes/amendment in the birth certificates of the above-mentioned minors. SO ORDERED.19 The OSG appealed20 the decision to the Court of Appeals on December 2, 2002. In its brief21 for the oppositor-appellant, the OSG raised the following arguments: I THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF CONSENT OF THE PROPOSED ADOPTEES BIOLOGICAL MOTHER. II THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF THE WRITTEN CONSENT OF THE PETITIONERS CHILDREN AS REQUIRED BY LAW.

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III THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE PETITIONERS FAILURE TO ESTABLISH THAT SHE IS IN A POSITION TO SUPPORT THE PROPOSED ADOPTEES. On April 29, 2004, the CA rendered a decision22 reversing the ruling of the RTC. It held that petitioner failed to adduce in evidence the voluntary consent of Amelia Ramos, the childrens natural mother. Moreover, the affidavit of consent of the petitioners children could not also be admitted in evidence as the same was executed in Guam, USA and was not authenticated or acknowledged before a Philippine consular office, and although petitioner has a job, she was not stable enough to support the children. The dispositive portion of the CA decision reads: WHEREFORE, premises considered, the appealed decision dated November 25, 2002 of the Regional Trial Court, Branch 63, Tarlac City in Spec. Proc. No. 2733 is hereby REVERSED and SET ASIDE. SO ORDERED.23 Petitioner filed a Motion for Reconsideration24 on May 21, 2004, which the CA denied in its Resolution dated August 12, 2004.25 Petitioner, thus, filed the instant petition for review on certiorari26 on September 7, 2004, assigning the following errors: 1. THAT THE HONORABLE LOWER COURT HAS OVERLOOKED AND MISAPPLIED SOME FACTS AND CIRCUMSTANCES WHICH ARE OF WEIGHT AND IMPORTANCE AND WHICH IF CONSIDERED WOULD HAVE AFFECTED THE RESULT OF THE CASE. 2. THAT THE HONORABLE LOWER COURT ERRED IN CONCLUDING THAT THE PETITIONER-APPELLEE IS NOT FINANCIALLY CAPABLE TO SUPPORT THE THREE CHILDREN.27 The issues raised by the parties in their pleadings are the following: (a) whether the petitioner is entitled to adopt the minors without the written consent of their biological mother, Amelia Ramos; (b) whether or not the affidavit of consent purportedly executed by the petitioneradopters children sufficiently complies with

the law; and (c) whether or not petitioner is financially capable of supporting the adoptees. The Courts Ruling The petition is denied for lack of merit. It has been the policy of the Court to adhere to the liberal concept, as stated in Malkinson v. Agrava,28 that adoption statutes, being humane and salutary, hold the interest and welfare of the child to be of paramount consideration and are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family in the person of the adopter as well as to allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should thus be sustained to promote and fulfill these noble and compassionate objectives of the law.29 However, in Cang v. Court of Appeals, the Court also ruled that the liberality with which this Court treats matters leading to adoption insofar as it carries out the beneficent purposes of the law to ensure the rights and privileges of the adopted child arising therefrom, ever mindful that the paramount consideration is the overall benefit and interest of the adopted child, should be understood in its proper context and perspective. The Courts position should not be misconstrued or misinterpreted as to extend to inferences beyond the contemplation of law and jurisprudence. Thus, the discretion to approve adoption proceedings is not to be anchored solely on best interests of the child but likewise, with due regard to the natural rights of the parents over the child.31 Section 9 of Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998, provides: Sec. 9. Whose Consent is Necessary to the Adoption. - After being properly counseled and informed of his/her right to give or withhold his/her approval of the adoption, the written consent of the following to the adoption is hereby required: (a) The adoptee, if ten (10) years of age or over; (b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality
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which has legal custody of the child; (c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any; (d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter, if living with said adopter and the latters souse, if any; (e) The spouse, if any, of the person adopting or to be adopted. The general requirement of consent and notice to the natural parents is intended to protect the natural parental relationship from unwarranted interference by interlopers, and to insure the opportunity to safeguard the best interests of the child in the manner of the proposed adoption.32 Clearly, the written consent of the biological parents is indispensable for the validity of a decree of adoption. Indeed, the natural right of a parent to his child requires that his consent must be obtained before his parental rights and duties may be terminated and re-established in adoptive parents. In this case, petitioner failed to submit the written consent of Amelia Ramos to the adoption. We note that in her Report, Pagbilao declared that she was able to interview Amelia Ramos who arrived in the Philippines with her son, John Mario in May 2002. If said Amelia Ramos was in the Philippines and Pagbilao was able to interview her, it is incredible that the latter would not require Amelia Ramos to execute a Written Consent to the adoption of her minor children. Neither did the petitioner bother to present Amelia Ramos as witness in support of the petition. Petitioner, nonetheless, argues that the written consent of the biological mother is no longer necessary because when Amelias husband died in 1990, she left for Italy and never came back. The children were then left to the guidance and care of their paternal grandmother. It is the paternal relatives, including petitioner, who provided for the childrens financial needs. Hence, Amelia, the biological mother, had effectively abandoned the children. Petitioner further contends that it was by twist of fate that after 12 years, when the petition for adoption was pending with the RTC that Amelia and her child by her second marriage were on vacation in the Philippines. Pagbilao, the DSWD social

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worker, was able to meet her, and during the meeting, Amelia intimated to the social worker that she conformed to the adoption of her three children by the petitioner. Petitioners contention must be rejected. When she filed her petition with the trial court, Rep. Act No. 8552 was already in effect. Section 9 thereof provides that if the written consent of the biological parents cannot be obtained, the written consent of the legal guardian of the minors will suffice. If, as claimed by petitioner, that the biological mother of the minors had indeed abandoned them, she should, thus have adduced the written consent of their legal guardian. Ordinarily, abandonment by a parent to justify the adoption of his child without his consent, is a conduct which evinces a settled purpose to forego all parental duties.33 The term means neglect and refusal to perform the filial and legal obligations of love and support. If a parent withholds presence, love, care, the opportunity to display filial affection, and neglects to lend support and maintenance, the parent, in effect, abandons the child.34 Merely permitting the child to remain for a time undisturbed in the care of others is not such an abandonment.35To dispense with the requirement of consent, the abandonment must be shown to have existed at the time of adoption.36 In this case, petitioner relied solely on her testimony and that of Elaine Ramos to prove her claim that Amelia Ramos had abandoned her children. Petitioners testimony on that matter follows: Q Where is the mother of these three children now? A She left for Italy on November 20, 1990, sir. Q At the time when Amelia Ramos left for Italy, was there an instance where she communicated with the family? A None, sir. Q How about with her children? A None, sir. Q Do you know what place in Italy did she reside? A I do not know, sir.

Q Did you receive any news about Amelia Ramos? A What I know, sir, was that she was already married with another man. Q From whom did you learn that? A From others who came from Italy, sir. Q Did you come to know whether she has children by her second marriage? A Yes, sir, she got two kids.37 Elaine, the eldest of the minors, testified, thus: Q Where is your mother now? A In Italy, sir. Q When did your mother left for Italy? A After my father died, sir. Q How old were you when your mother left for Italy in 1990? A Two years old, sir. Q At the time when your mother left for Italy, did your mother communicate with you? A No, sir.
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V. Background Information about the Minors Being Sought for Adoption: xxxx As the eldest she tries her best to be a role model to her younger siblings. She helps them in their lessons, works and has fun with them. She also encourages openness on their problems and concerns and provides petty counseling. In serious problems she already consult (sic) her mother and petitioner-aunt.40 xxxx In their 5 years of married life, they begot 3 children, herein minors, Amelia recalled that they had a happy and comfortable life. After the death of her husband, her in-laws which include the petitioner had continued providing support for them. However being ashamed of just depending on the support of her husbands relatives, she decided to work abroad. Her parents are also in need of financial help as they are undergoing maintenance medication. Her parents mortgaged their farm land which she used in going to Italy and worked as domestic helper. When she left for Italy in November 1990, she entrusted her 3 children to the care & custody of her mother-in-law who returned home for good, however she died on November 2000. While working in Italy, she met Jun Tayag, a married man from Tarlac. They became livein partners since 1995 and have a son John Mario who is now 2 years old. The three of them are considered Italian residents. Amelia claimed that Mr. Tayag is planning to file an annulment of his marriage and his wife is amenable to it. He is providing his legitimate family regular support. Amelia also sends financial support ranging from P10,000-P15,000 a month through her parents who share minimal amount of P3,000-P5,000 a month to his (sic) children. The petitioner and other paternal relatives are continuously providing support for most of the needs & education of minors up to present.41 Thus, when Amelia left for Italy, she had not intended to abandon her children, or to permanently sever their mother-child relationship. She was merely impelled to leave the country by financial constraints. Yet, even while abroad, she did not surrender or relinquish entirely her motherly obligations of rearing the children to her now deceased mother-in-law, for, as claimed by Elaine herself, she consulted her mother, Amelia, for serious personal

However, the Home Study Report of the DSWD Social Worker also stated the following: IV. Background of the Case: xxxx Since the mother left for Italy, minors siblings had been under the care and custody of their maternal grandmother. However, she died in Nov. 2001 and an uncle, cousin of their deceased father now serves as their guardian. The petitioner, together with her children and other relatives abroad have been supporting the minor children financially, even during the time that they were still living with their natural parents. Their mother also sends financial support but very minimal.39 xxxx

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problems. Likewise, Amelia continues to send financial support to the children, though in minimal amounts as compared to what her affluent in-laws provide. Let it be emphasized, nevertheless, that the adoption of the minors herein will have the effect of severing all legal ties between the biological mother, Amelia, and the adoptees, and that the same shall then be vested on the adopter.42 It would thus be against the spirit of the law if financial consideration were to be the paramount consideration in deciding whether to deprive a person of parental authority over his/her children. More proof has to be adduced that Amelia has emotionally abandoned the children, and that the latter will not miss her guidance and counsel if they are given to an adopting parent.43 Again, it is the best interest of the child that takes precedence in adoption. Section 34, Rule 132 of the Rules of Court provides that the Court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. The offer of evidence is necessary because it is the duty of the Court to rest its findings of fact and its judgment only and strictly upon the evidence offered by the parties. Unless and until admitted by the court in evidence for the purpose or purposes for which such document is offered, the same is merely a scrap of paper barren of probative weight. Mere identification of documents and the markings thereof as exhibits do not confer any evidentiary weight on documents unless formally offered.44 Petitioner failed to offer in evidence Pagbilaos Report and of the Joint Affidavit of Consent purportedly executed by her children; the authenticity of which she, likewise, failed to prove. The joint written consent of petitioners children45 was notarized on January 16, 2002 in Guam, USA; for it to be treated by the Rules of Court in the same way as a document notarized in this country it needs to comply with Section 2 of Act No. 2103,46 which states: Section 2. An instrument or document acknowledged and authenticated in a foreign country shall be considered authentic if the acknowledgment and authentication are made in accordance with the following requirements: (a) The acknowledgment shall be made before (1) an ambassador, minister, secretary of legation, charg d affaires, consul, viceconsul, or consular agent of the Republic of the Philippines, acting within the country or

place to which he is accredited, or (2) a notary public or officer duly authorized by law of the country to take acknowledgments of instruments or documents in the place where the act is done. (b) The person taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him, and that he is the same person who executed it, and acknowledged that the same is his free act and deed. The certificate shall be under his official seal, if he is by law required to keep a seal, and if not, his certificate shall so state. In case the acknowledgment is made before a notary public or an officer mentioned in subdivision (2) of the preceding paragraph, the certificate of the notary public or the officer taking the acknowledgment shall be authenticated by an ambassador, minister, secretary of legation, charg de affaires, consul, vice-consul, or consular agent of the Republic of the Philippines, acting within the country or place to which he is accredited. The officer making the authentication shall certify under his official seal that the person who took the acknowledgment was at the time duly authorized to act as notary public or that he was duly exercising the functions of the office by virtue of which he assumed to act, and that as such he had authority under the law to take acknowledgment of instruments or documents in the place where the acknowledgment was taken, and that his signature and seal, if any, are genuine. As the alleged written consent of petitioners legitimate children did not comply with the afore-cited law, the same can at best be treated by the Rules as a private document whose authenticity must be proved either by anyone who saw the document executed or written; or by evidence of the genuineness of the signature or handwriting of the makers.47 Since, in the instant case, no further proof was introduced by petitioner to authenticate the written consent of her legitimate children, the same is inadmissible in evidence.

In reversing the ruling of the RTC, the CA ruled that petitioner was not stable enough to support the children and is only relying on the financial backing, support and commitment of her children and her siblings.48 Petitioner contradicts this by claiming that she is financially capable as she has worked in Guam for 14 years, has savings, a house, and currently earns $5.15 an hour with tips of not less than $1,000.00 a month. Her children and siblings have likewise committed themselves to provide financial backing should the need arise. The OSG, again in its comment, banks on the statement in the Home Study Report that "petitioner has limited income." Accordingly, it appears that she will rely on the financial backing of her children and siblings in order to support the minor adoptees. The law, however, states that it is the adopter who should be in a position to provide support in keeping with the means of the family. Since the primary consideration in adoption is the best interest of the child, it follows that the financial capacity of prospective parents should also be carefully evaluated and considered. Certainly, the adopter should be in a position to support the would-be adopted child or children, in keeping with the means of the family. According to the Adoption Home Study Report49 forwarded by the Department of Public Health & Social Services of the Government of Guam to the DSWD, petitioner is no longer supporting her legitimate children, as the latter are already adults, have individual lives and families. At the time of the filing of the petition, petitioner was 57 years old, employed on a part-time basis as a waitress, earning $5.15 an hour and tips of around $1,000 a month. Petitioners main intention in adopting the children is to bring the latter to Guam, USA. She has a house at Quitugua Subdivision in Yigo, Guam, but the same is still being amortized. Petitioner likewise knows that the limited income might be a hindrance to the adoption proceedings. Given these limited facts, it is indeed doubtful whether petitioner will be able to sufficiently handle the financial aspect of rearing the three children in the US. She only has a part-time job, and she is rather of age. While petitioner claims that she has the financial support and backing of her children and siblings, the OSG is correct in stating that the ability to support the adoptees is personal to the adopter, as adoption only creates a legal relation between the former and the latter. Moreover, the records do not prove nor support petitioners allegation that her siblings and her children are financially able and that they are willing to support the

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minors herein. The Court, therefore, again sustains the ruling of the CA on this issue. While the Court recognizes that petitioner has only the best of intentions for her nieces and nephew, there are legal infirmities that militate against reversing the ruling of the CA. In any case, petitioner is not prevented from filing a new petition for adoption of the herein minors. WHEREFORE, premises considered, the petition is hereby DENIED. SO ORDERED. ROMEO J. CALLEJO, SR. Associate Justice FIRST DIVISION CARPIO, J.: IN RE: PETITION FOR 168992-93 ADOPTION OF MICHELLE P. LIM, MONINA LIM, Chairperson, G.R. Nos. IN RE: PETITION FOR ADOPTION OF MICHAEL JUDE P. LIM, MONINA P. LIM, Respondent. Promulgated:

A M I N ,

J J .

simulated the birth of a child. Thus, on 24 April 2002, petitioner filed separate petitions for the adoption of Michelle and Michael before the trial court docketed as SPL PROC. Case Nos. 1258 and 1259, respectively. At the time of the filing of the petitions for adoption, Michelle was 25 years old and already married, while Michael was 18 years and seven months old. Michelle and her husband gave their consent to the adoption as evidenced by their Affidavits of Consent.[7] Michael also gave his consent to his adoption as shown in his Affidavit of Consent.[8] Petitioners husband Olario likewise executed an Affidavit of Consent[9] for the adoption of Michelle and Michael. In the Certification issued by the Department of Social Welfare and Development (DSWD), Michelle was considered as an abandoned child and the whereabouts of her natural parents were unknown.[10] The DSWD issued a similar Certification for Michael.[11]

May 21, 2009 x-------------------------------- - - - - - - - - - - -x DECISION

Present: P.

PUNO, C.J.,

Petitioner. CARPIO, x - - -- - -- - -- - -- - -- - - --- - - x CORONA, L E O N A R D O D E C A S T R O , a n d

The Case This is a petition for review on certiorari filed by Monina P. Lim (petitioner) seeking to set aside the Decision[1] dated 15 September 2004 of the Regional Trial Court, General Santos City, Branch 22 (trial court), in SPL. PROC. Case Nos. 1258 and 1259, which dismissed without prejudice the consolidated petitions for adoption of Michelle P. Lim and Michael Jude P. Lim. The Facts The following facts are undisputed. Petitioner is an optometrist by profession. On 23 June 1974, she married Primo Lim (Lim). They were childless. Minor children, whose parents were unknown, were entrusted to them by a certain Lucia Ayuban (Ayuban). Being so eager to have a child of their own, petitioner and Lim registered the children to make it appear that they were the childrens parents. The children[2] were named Michelle P. Lim (Michelle) and Michael Jude P. Lim (Michael). Michelle was barely eleven days old when brought to the clinic of petitioner. She was born on 15 March 1977.[3] Michael was 11 days old when Ayuban brought him to petitioners clinic. His date of birth is 1 August 1983.[4] The spouses reared and cared for the children as if they were their own. They sent the children to exclusive schools. They used the surname Lim in all their school records and documents. Unfortunately, on 28 November 1998, Lim died. On 27 December 2000, petitioner married Angel Olario (Olario), an American citizen. Thereafter, petitioner decided to adopt the children by availing of the amnesty[5] given under Republic Act No. 8552[6] (RA 8552) to those individuals who

The Ruling of the Trial Court On 15 September 2004, the trial court rendered judgment dismissing the petitions. The trial court ruled that since petitioner had remarried, petitioner should have filed the petition jointly with her new husband. The trial court ruled that joint adoption by the husband and the wife is mandatory citing Section 7(c), Article III of RA 8552 and Article 185 of the Family Code. Petitioner filed a Motion for Reconsideration of the decision but the motion was denied in the Order dated 16 June 2005. In denying the motion, the trial court ruled that petitioner did not fall under any of the exceptions under Section 7(c), Article III of RA 8552. Petitioners argument that mere consent of her husband would suffice was untenable because, under the law, there are additional requirements, such as residency and certification of his qualification, which the husband, who was not even made a party in this case, must comply. As to the argument that the adoptees are already emancipated and joint adoption is merely for the joint exercise of parental authority, the trial court ruled that joint adoption is not only for the purpose of exercising parental authority because an emancipated child acquires certain rights from his parents and assumes certain obligations and responsibilities. Hence, the present petition.

B E R S

Issue

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Petitioner appealed directly to this Court raising the sole issue of whether or not petitioner, who has remarried, can singly adopt.

may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptees parent; (b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided, That his/her country has diplomatic relations with the Republic of the Philippines, that he/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered, that he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter: Provide d, further, That the requirements on residency and certification of the aliens qualification to adopt in his/her country may be waived for the following: (i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguin ity or affinity; or (ii) one who seeks to

adopt the legitimate son/daugh ter of his/her Filipino spouse; or (iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguin ity or affinity of the Filipino spouses; or (c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities. Husband and wife shall jointly adopt, except in the following cases: (i) if one spouse seeks to adopt the legitimate son/daught er of the other; or (ii) if one spouse seeks to adopt his/her own illegitimate son/daugh ter: Provid ed, however, T hat the other spouse has signified his/her consent thereto; or

The Courts Ruling Petitioner contends that the rule on joint adoption must be relaxed because it is the duty of the court and the State to protect the paramount interest and welfare of the child to be adopted. Petitioner argues that the legal maxim dura lex sed lex is not applicable to adoption cases. She argues that joint parental authority is not necessary in this case since, at the time the petitions were filed, Michelle was 25 years old and already married, while Michael was already 18 years of age. Parental authority is not anymore necessary since they have been emancipated having attained the age of majority. We deny the petition. Joint Adoption by Husband and Wife It is undisputed that, at the time the petitions for adoption were filed, petitioner had already remarried. She filed the petitions by herself, without being joined by her husband Olario. We have no other recourse but to affirm the trial courts decision denying the petitions for adoption. Dura lex sed lex. The law is explicit. Section 7, Article III of RA 8552 reads: SEC. 7. Who May Adopt. - The following may adopt: (a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his/her children in keeping with the means of the family. The requirement of sixteen (16) year difference between the age of the adopter and adoptee

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(iii) if the spouses are legally separated from each other. In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses. (Emphasis supplied)

These requirements on residency and certification of the aliens qualification to adopt cannot likewise be waived pursuant to Section 7. The children or adoptees are not relatives within the fourth degree of consanguinity or affinity of petitioner or of Olario. Neither are the adoptees the legitimate children of petitioner.

Effects of Adoption Petitioner contends that joint parental authority is not anymore necessary since the children have been emancipated having reached the age of majority. This is untenable. Parental authority includes caring for and rearing the children for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.[13] The father and the mother shall jointly exercise parental authority over the persons of their common children.[14] Even the remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children.[15] It is true that when the child reaches the age of emancipation that is, when he attains the age of majority or 18 years of age[16] emancipation terminates parental authority over the person and property of the child, who shall then be qualified and responsible for all acts of civil life.[17] However, parental authority is merely just one of the effects of legal adoption. Article V of RA 8552 enumerates the effects of adoption, thus: ARTICLE V EFFECTS OF ADOPTION SEC. 16. Parental Authority. - Except in cases where the biological parent is the spouse of the adopter, all legal ties between the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s). SEC. 17. Legitimacy. - The adoptee shall be considered the legitimate

son/daughter of the adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of the family. SEC. 18. Succession. In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern. Adoption has, thus, the following effects: (1) sever all legal ties between the biological parent(s) and the adoptee, except when the biological parent is the spouse of the adopter; (2) deem the adoptee as a legitimate child of the adopter; and (3) give adopter and adoptee reciprocal rights and obligations arising from the relationship of parent and child, including but not limited to: (i) the right of the adopter to choose the name the child is to be known; and (ii) the right of the adopter and adoptee to be legal and compulsory heirs of each other.[18] Therefore, even if emancipation terminates parental authority, the adoptee is still considered a legitimate child of the adopter with all the rights[19] of a legitimate child such as: (1) to bear the surname of the father and the mother; (2) to receive support from their parents; and (3) to be entitled to the legitime and other successional rights. Conversely, the adoptive parents shall, with respect to the adopted child, enjoy all the benefits to which biological parents are entitled[20] such as support[21] and successional rights.[22] We are mindful of the fact that adoption statutes, being humane and salutary, hold the interests and welfare of the child to be of paramount consideration. They are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and

The use of the word shall in the above-quoted provision means that joint adoption by the husband and the wife is mandatory. This is in consonance with the concept of joint parental authority over the child which is the ideal situation. As the child to be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also insures harmony between the spouses.[12] The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time the petitions for adoption were filed, must jointly adopt. Since the petitions for adoption were filed only by petitioner herself, without joining her husband, Olario, the trial court was correct in denying the petitions for adoption on this ground. Neither does petitioner fall under any of the three exceptions enumerated in Section 7. First, the children to be adopted are not the legitimate children of petitioner or of her husband Olario. Second, the children are not the illegitimate children of petitioner. And third, petitioner and Olario are not legally separated from each other. The fact that Olario gave his consent to the adoption as shown in his Affidavit of Consent does not suffice. There are certain requirements that Olario must comply being an American citizen. He must meet the qualifications set forth in Section 7 of RA 8552 such as: (1) he must prove that his country has diplomatic relations with the Republic of the Philippines; (2) he must have been living in the Philippines for at least three continuous years prior to the filing of the application for adoption; (3) he must maintain such residency until the adoption decree is entered; (4) he has legal capacity to adopt in his own country; and (5) the adoptee is allowed to enter the adopters country as the latters adopted child. None of these qualifications were shown and proved during the trial.

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family, as well as to allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law.[23] But, as we have ruled in Republic v. Vergara:[24] We are not unmindful of the main purpose of adoption statutes, which is the promotion of the welfare of the children. Accordingly, the law should be construed liberally, in a manner that will sustain rather than defeat said purpose. The law must also be applied with compassion, understanding and less severity in view of the fact that it is intended to provide homes, love, care and education for less fortunate children. Regrettably, the Court is not in a position to affirm the trial courts decision favoring adoption in the case at bar, for the law is clear and it cannot be modified without violating the proscription against judicial legislation. Until such time however, that the law on the matter is amended, we cannot sustain the respondent-spouses petition for adoption. (Emphasis supplied)

petitioner and Olario is of no moment. It is not equivalent to a decree of dissolution of marriage. Until and unless there is a judicial decree for the dissolution of the marriage between petitioner and Olario, the marriage still subsists. That being the case, joint adoption by the husband and the wife is required. We reiterate our ruling above that since, at the time the petitions for adoption were filed, petitioner was married to Olario, joint adoption is mandatory. WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 15 September 2004 of the Regional Trial Court, General Santos City, Branch 22 in SPL. PROC. Case Nos. 1258 and 1259. Costs against petitioner. SO ORDERED. ANTONIO T. CARPIO Associate Justice SUPPORT

de Asis, and the former refused and/or failed to provide for the maintenance of the latter, despite repeated demands. In his Answer, petitioner denied his paternity of the said minor and theorized that he cannot therefore be required to provide support for him. On July 4, 1989, private respondent Vircel D. Andres, through counsel, sent in a manifestation the pertinent portion of which, reads; 1. That in his proposed Amended Answer, defendant (herein petitioner) has made a judicial admission/declaration that 1) defendant denies that the said minor child (Glen Camil) is his child; 2) he (petitioner) has no obligation to the plaintiff Glen Camil xxx. 2. That with the aforesaid judicial admissions/declarations by the defendant, it seems futile and a useless exercise to claim support from said defendant. 3. That under the foregoing circumstances it would be more practical that plaintiff withdraws the complaint against the defendant subject to the condition that the defendant should not pursue his counterclaim in the above-entitled case, xxx.[1 By virtue of the said manifestation, both the plaintiff and the defendant agreed to move for the dismissal of the case. Acting thereupon, the Regional Trial Court a quo issued the following Order of August 8, 1989, dismissing Civil Case No. Q88-935 with prejudice, to wit: Acting on the manifestation of Atty. Romualdo C. delos Santos, counsel for the defendant, that counsel for the plaintiff Atty. Ismael J. Andres has no objection that this case be withdrawn provided that the defendant will withdraw the counterclaim, as prayed for, let the case be dismissed with prejudice. SO ORDERED.[2

THIRD DIVISION [G.R. No. 127578. February 15, 1999] MANUEL DE ASIS, Petitioner, vs. COURT OF APPEALS, HON. JAIME T. HAMOY, Branch 130, RTC, Kalookan City and GLEN CAMIL ANDRES DE ASIS represented by her mother/guardian VIRCEL D. ANDRES, Respondents. DECISION PURISIMA, J.: Petition for certiorari under Rule 65 of the Revised Rules of Court seeking to nullify the decision of the Court of Appeals which affirmed the trial courts Orders, dated November 25, 1993 and February 4, 1994, respectively, denying petitioners Motion to Dismiss the Complaint in Civil Case No. C16107, entitled Glen Camil Andres de Asis, etc. vs. Manuel de Asis, and the motion for reconsideration. The pertinent facts leading to the filing of the petition at bar are, as follows: On October 14, 1988, Vircel D. Andres, (the herein private respondent) in her capacity as the legal guardian of the minor, Glen Camil Andres de Asis, brought an action for maintenance and support against Manuel de Asis, docketed as Civil Case No. Q-88-935 before the Regional Trial Court of Quezon City, Branch 94, alleging that the defendant Manuel de Asis (the petitioner here) is the father of subject minor Glen Camil Andres

Petitioner, being married at the time the petitions for adoption were filed, should have jointly filed the petitions with her husband. We cannot make our own legislation to suit petitioner. Petitioner, in her Memorandum, insists that subsequent events would show that joint adoption could no longer be possible because Olario has filed a case for dissolution of his marriage to petitioner in the Los Angeles Superior Court. We disagree. The filing of a case for dissolution of the marriage between

On September 7, 1995, another Complaint for maintenance and support was brought against Manuel A. de Asis, this time in the name of Glen Camil Andres de Asis, represented by her legal guardian/mother, Vircel D. Andres. Docketed as Civil Case No. C-16107 before Branch 130 of the Regional Trial Court of Kalookan, the said Complaint prayed, thus:

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WHEREFORE, premises considered, it is respectfully prayed that judgment be rendered ordering defendant: 1. To pay plaintiff the sum of not less than P2,000.00 per month for every month since June 1, 1987 as support in arrears which defendant failed to provide plaintiff shortly after her birth in June 1987 up to the present; 2. To give plaintiff a monthly allowance of P5,000.00 to be paid in advance on or before the 5th of each and every month; 3. To give plaintiff by way of support pendente lite, a monthly allowance of P5,000.00 per month, the first monthly allowance to start retroactively from the first day of this month and the subsequent ones to be paid in advance on or before the 5th of each succeeding month; 4. To pay the costs of suit. Plaintiff prays for such other relief just and equitable under the premises.[3 On October 8, 1993, petitioner moved to dismiss the Complaint on the ground of res judicata, alleging that Civil Case C-16107 is barred by the prior judgment which dismissed with prejudice Civil Case Q-88935. In the Order dated November 25, 1993 denying subject motion to dismiss, the trial court ruled that res judicata is inapplicable in an action for support for the reason that renunciation or waiver of future support is prohibited by law. Petitioners motion for reconsideration of the said Order met the same fate. It was likewise denied. Petitioner filed with the Court of Appeals a Petition for Certiorari. But on June 7, 1996, the Court of Appeals found the said Petition devoid of merit and dismissed the same. Undaunted, petitioner found his way to this court via the present petition, posing the question whether or not the public respondent acted with grave abuse of discretion amounting to lack or excess of jurisdiction in upholding the denial of the motion to dismiss by the trial court, and holding that an action for support cannot be barred by res judicata. To buttress his submission, petitioner invokes the previous dismissal of the Complaint for maintenance and support, Civil Case Q-88-935, filed by the mother and guardian of the minor, Glen Camil Andres de Asis, (the herein private respondent). In said case, the complainant manifested that

because of the defendants judicial declaration denying that he is the father of subject minor child, it was futile and a useless exercise to claim support from defendant. Because of such manifestation, and defendants assurance that he would not pursue his counterclaim anymore, the parties mutually agreed to move for the dismissal of the complaint. The motion was granted by the Quezon City Regional Trial Court, which then dismissed the case with prejudice. Petitioner contends that the aforecited manifestation, in effect, admitted the lack of filiation between him and the minor child, which admission binds the complainant, and since the obligation to give support is based on the existence of paternity and filiation between the child and the putative parent, the lack thereof negates the right to claim for support. Thus, petitioner maintains that the dismissal of the Complaint by the lower court on the basis of the said manifestation bars the present action for support, especially so because the order of the trial court explicitly stated that the dismissal of the case was with prejudice. The petition is not impressed with merit. The right to receive support can neither be renounced nor transmitted to a third person. Article 301 of the Civil Code, the law in point, reads: Art. 301. The right to receive support cannot be renounced, nor can it be transmitted to a third person. Neither can it be compensated with what the recipient owes the obligor. xxx Furthermore, future support cannot be the subject of a compromise. Article 2035, ibid, provides, that: No compromise upon questions shall be valid: the following

The raison d etre behind the proscription against renunciation, transmission and/or compromise of the right to support is stated, thus: The right to support being founded upon the need of the recipient to maintain his existence, he is not entitled to renounce or transfer the right for this would mean sanctioning the voluntary giving up of life itself. The right to life cannot be renounced; hence, support, which is the means to attain the former, cannot be renounced. xxx To allow renunciation or transmission or compensation of the family right of a person to support is virtually to allow either suicide or the conversion of the recipient to a public burden. This is contrary to public policy.[4 In the case at bar, respondent minors mother, who was the plaintiff in the first case, manifested that she was withdrawing the case as it seemed futile to claim support from petitioner who denied his paternity over the child. Since the right to claim for support is predicated on the existence of filiation between the minor child and the putative parent, petitioner would like us to believe that such manifestation admitting the futility of claiming support from him puts the issue to rest and bars any and all future complaint for support. The manifestation sent in by respondents mother in the first case, which acknowledged that it would be useless to pursue its complaint for support, amounted to renunciation as it severed the vinculum that gives the minor, Glen Camil, the right to claim support from his putative parent, the petitioner. Furthermore, the agreement entered into between the petitioner and respondents mother for the dismissal of the complaint for maintenance and support conditioned upon the dismissal of the counterclaim is in the nature of a compromise which cannot be countenanced. It violates the prohibition against any compromise of the right to support. Thus, the admission made by counsel for the wife of the facts alleged in a motion of the husband, in which the latter prayed that his obligation to support be extinguished cannot be considered as an assent to the prayer, and much less, as a waiver of the right to claim for support.[5 It is true that in order to claim support, filiation and/or paternity must first be shown between the claimant and the parent. However, paternity and filiation or the lack of the same is a relationship that

(1) The civil status of persons; (2) The validity of a marriage or legal separation; (3) Any ground for legal separation (4) Future support; (5) The jurisdiction of courts; (6) Future legitime.

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must be judicially established and it is for the court to declare its existence or absence. It cannot be left to the will or agreement of the parties. The civil status of a son having been denied, and this civil status, from which the right to support is derived being in issue, it is apparent that no effect can be given to such a claim until an authoritative declaration has been made as to the existence of the cause.[6 Although in the case under scrutiny, the admission may be binding upon the respondent, such an admission is at most evidentiary and does not conclusively establish the lack of filiation. Neither are we persuaded by petitioners theory that the dismissal with prejudice of Civil Case Q-88-935 has the effect of res judicata on the subsequent case for support. The case of Advincula vs. Advincula[7 comes to the fore. In Advincula, the minor, Manuela Advincula, instituted a case for acknowledgment and support against her putative father, Manuel Advincula. On motion of both parties and for the reason that the plaintiff has lost interest and is no longer interested in continuing the case against the defendant and has no further evidence to introduce in support of the complaint, the case was dismissed. Thereafter, a similar case was instituted by Manuela, which the defendant moved to dismiss, theorizing that the dismissal of the first case precluded the filing of the second case. In disposing such case, this Court ruled, thus: The new Civil Code provides that the allowance for support is provisional because the amount may be increased or decreased depending upon the means of the giver and the needs of the recipient (Art. 297); and that the right to receive support cannot be renounced nor can it be transmitted to a third person; neither can it be compensated with what the recipient owes the obligator (Art. 301). Furthermore, the right to support can not be waived or transferred to third parties and future support cannot be the subject of compromise (Art. 2035; Coral v. Gallego, 38 O.G. 3135, cited in IV Civil Code by Padilla, p. 648, 1956 Ed.). This being true, it is indisputable that the present action for support can be brought, notwithstanding the fact the previous case filed against the same defendant was dismissed. And it also appearing that the dismissal of Civil Case No. 3553, was not an adjudication upon the merits, as heretofore shown, the right of herein plaintiff-appellant to reiterate her suit for support and acknowledgment is available, as her needs arise. Once the

needs of plaintiff arise, she has the right to bring an action for support, for it is only then that her cause of action accrues.xxx xxx It appears that the former dismissal was predicated upon a compromise. Acknowledgment, affecting as it does the civil status of persons and future support, cannot be the subject of compromise. (pars. 1 & 4, Art. 2035, Civil Code). Hence, the first dismissal cannot have force and effect and can not bar the filing of another action, asking for the same relief against the same defendant.(emphasis supplied) Conformably, notwithstanding the dismissal of Civil Case 88-935 and the lower courts pronouncement that such dismissal was with prejudice, the second action for support may still prosper. WHEREFORE, the petition under consideration is hereby DISMISSED and the decision of the Court of Appeals AFFIRMED. No pronouncement as to costs. SO ORDERED. Romero, (Chairman), Vitug, Panganiban, and Gonzaga-Reyes, JJ., concur. SECOND DIVISION [G.R. No. 145527. May 28, 2002] AUGUSTUS CAEZAR R. GAN, petitioner, vs. HON. ANTONIO C. REYES, in his capacity as Presiding Judge of RTC-Br. 61, Baguio City, ALBERT G. TOLENTINO, in his capacity as RTC Sheriff of Baguio City, and FRANCHESKA JOY C. PONDEVIDA, assisted by BERNADETTE C. PONDEVIDA,respondents. DECISION BELLOSILLO, J.: Quite apprehensive that she would not be able to send to school her three (3)year old daughter Francheska Joy S. Pondevida, Bernadette S. Pondevida wrote petitioner Augustus Caezar R. Gan[1] demanding support for their "love child." Petitioner, in his reply, denied paternity of the child. An exasperated Bernadette thereafter instituted in behalf of her daughter a complaint against petitioner for support with prayer for support pendente lite.[2] Petitioner moved to dismiss on the ground that the complaint failed to state a

cause of action. He argued that since Francheska's certificate of birth indicated her father as "UNKNOWN," there was no legal or factual basis for the claim of support.[3] His motion, however, was denied by the trial court.[4] Despite denial of his motion, petitioner failed to file his answer within the reglementary period. Thus, on 19 January 2000 private respondent moved that petitioner be declared in default, which motion was granted. In its Order declaring petitioner in default the trial court noted that petitioner's Motion to Admit Answer was filed more than ninety (90) days after the expiration of the reglementary period, and only after private respondent moved that petitioner be declared in default. Petitioner's motion for reconsideration was also denied. Hence, the court received the evidence of private respondent ex parte. After finding that the claim of filiation and support was adequately proved, the trial court rendered its Decision on 12 May 2000 ordering petitioner to recognize private respondent Francheska Joy S. Pondevida as his illegitimate child and support her with P20,000.00 every month to be paid on or before the 15th of each month starting 15 April 2000. Likewise petitioner was ordered to pay Francheska Joy S. Pondevida the accumulated arrears of P20,000.00 per month from the day she was born, P50,000.00 as attorney's fees and P25,000.00 for expenses of litigation, plus P20,000.00 on or before the 15th of every month from 15 May 2000 as alimonypendente lite should he desire to pursue further remedies against private respondent.[5] Forthwith, private respondent moved for execution of the judgment of support, which the trial court granted by issuing a writ of execution, citing as reason therefor private respondent's immediate need for schooling.[6]Pursuant to the writ, the sheriff levied upon a motor vehicle, a Honda City, with Plate No. UMT 884, registered in the name of "A.B. Leasing & Fin. Corp., Leased to: G & G Trading," and found within the premises of petitioner's warehouse in Caloocan City.[7] Meanwhile, petitioner appealed the Judgment to the Court of Appeals.[8] On 9 June 2000 petitioner filed a petition for certiorari and prohibition with the Court of Appeals imputing grave abuse of discretion to the trial court for ordering the immediate execution of the judgment. Petitioner averred that the writ of execution was issued despite the absence of a good reason for immediate enforcement. Petitioner insisted that as the judgment sought to be executed did not yet

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attain finality there should be an exceptional reason to warrant its execution. He further alleged that the writ proceeded from an order of default and a judgment rendered by the trial court in complete disregard of his "highly meritorious defense." Finally, petitioner impugned the validity of the writ as he argued that it was issued without notice to him. Petitioner stressed the fact that he received copy of the motion for immediate execution two (2) weeks after its scheduled hearing.[9] On 31 August 2000 the Court of Appeals dismissed the petition on the ratiocination that under Sec. 4, Rule 39 of the 1997 Rules of Civil Procedure judgments for support are immediately executory and cannot be stayed by an appeal. Thus, it did not help petitioner any to argue that there were no good reasons to support its immediate execution. The second challenge hurled against the validity of the writ concerning the lack of notice and hearing was likewise dismissed with the appeals court favoring substantial justice over technicalities. Lastly, petitioner's justification for belatedly filing his answer, i.e., miscommunication with his lawyer, was disregarded since it fell short of the statutory requirements of "fraud, accident, mistake or excusable negligence."[10] His motion for reconsideration having been denied, petitioner came to us impugning the dismissal of his petition for certiorari. Petitioner argues that under the rules a judgment for support which is subject of an appeal cannot be executed absent any good reason for its immediate execution. Petitioner likewise attacks the validity of the writ asserting that it was issued in violation of his right to notice and hearing. Petitioner also seeks the setting aside of the default order and the judgment rendered thereafter for the reason that should he be allowed to prove his defense of adultery, the claim of support would be most likely denied.[11] Petitioner claims that in an action by a child against his putative father, adultery of the child's mother would be a valid defense to show that the child is a fruit of adulterous relations for, in such case, it would not be the child of the defendant and therefore not entitled to support. Parenthetically, how could he be allowed to prove the defense of adultery when it was not even hinted that he was married to the mother of Francheska Joy. Petitioner consents to submit to Dioxyribonucleic Acid (DNA) Testing to resolve the issue of paternity, which test he claims has a reputation for accuracy.[12] A careful review of the facts and circumstances of this case fails to persuade this Court to brand the issuance of the writ of execution by the trial court and affirmed by the Court of Appeals with the vice of

grave abuse of discretion. There is no evidence indeed to justify the setting aside of the writ on the ground that it was issued beyond the legitimate bounds of judicial discretion. Section 4, Rule 39, of the Rules of Court clearly states that, unless ordered by the trial court, judgments in actions for support are immediately executory and cannot be stayed by an appeal. This is an exception to the general rule which provides that the taking of an appeal stays the execution of the judgment and that advance executions will only be allowed if there are urgent reasons therefor. The aforesaid provision peremptorily calls for immediate execution of all judgments for support and makes no distinction between those which are the subject of an appeal and those which are not. To consider then petitioner's argument that there should be good reasons for the advance execution of a judgment would violate the clear and explicit language of the rule mandating immediate execution. Petitioner is reminded that to the plain words of a legal provision we should make no further explanation. Absoluta sententia expositore non indiget. Indeed, the interpretation which petitioner attempts to foist upon us would only lead to absurdity, its acceptance negating the plain meaning of the provision subject of the petition. Petitioner would also have us annul the writ of execution on the ground that he was not notified of its issuance. We are unable to accept such a plea for enough has been done by petitioner to delay the execution of the writ. As the records show, in partial fulfillment of the writ of execution petitioner surrendered a sedan which apparently was not his as it was later ordered released to a third party who laid claim over the levied vehicle.[13]Also, petitioner filed before the Court of Appeals a Motion for Leave to Deposit in Court Support Pendente Lite promising to deposit the amount due as support every 15th of the month, but to date has not deposited any amount in complete disavowal of his undertaking.[14] He was not even deterred from appealing before us and needlessly taking up our time and energy by posing legal questions that can be characterized, at best, as flimsy and trivial. We are thus not prepared to abrogate the writ of execution issued in favor of private respondent for substantial justice would be better served if petitioner be precluded from interposing another barrier to the immediate execution of the support judgment. We are not intimating that in every case the right to notice of hearing can be disregarded. That is not so. It appears in this case that there has been too much temporizing in the execution of the writ

which must not be allowed to thwart the constitutional mandate for speedy disposition of cases. As has been said, a technicality should be an aid to justice and not its great hindrance and chief enemy.[15] Truly, if the writ of execution would be voided on this ground alone, then procedural rules which were primarily drafted to protect parties in the realm of constitutional guarantees would acquire a new sanctity at the expense of equity and justice. Lastly, we note that no useful purpose would be served if we dwell on petitioner's arguments concerning the validity of the judgment by default and his insistence that he be subjected, together with private respondent Bernadette C. Pondevida to DNA testing to settle the issue of paternity. The futility of his arguments is very apparent. It is not for us at this instance to review or revise the Decision rendered by the trial court for to do so would pre-empt the decision which may be rendered by the Court of Appeals in the main case for support. In all cases involving a child, his interest and welfare are always the paramount concerns. There may be instances where, in view of the poverty of the child, it would be a travesty of justice to refuse him support until the decision of the trial court attains finality while time continues to slip away. An excerpt from the early case of De Leon v. Soriano[16] is relevant, thus: The money and property adjudged for support and education should and must be given presently and without delay because if it had to wait the final judgment, the children may in the meantime have suffered because of lack of food or have missed and lost years in school because of lack of funds. One cannot delay the payment of such funds for support and education for the reason that if paid long afterwards, however much the accumulated amount, its payment cannot cure the evil and repair the damage caused. The children with such belated payment for support and education cannot act as gluttons and eat voraciously and unwisely, afterwards, to make up for the years of hunger and starvation. Neither may they enrol in several classes and schools and take up numerous subjects all at once to make up for the years they missed in school, due to non-payment of the funds when needed. WHEREFORE, finding no reversible error in the Decision sought to be reviewed, the instant petition is DENIED. The 31 August 2000 Decision of the Court of Appeals dismissing the Petition for Certiorari instituted by petitioner Augustus Caezar C. Gan and upholding the validity of

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the 2 June 2000 Writ of Execution issued by the Regional Trial Court Br. 61, Baguio City, in Civil Case No. 4234-R, is AFFIRMED. Costs against petitioner. SO ORDERED. Mendoza, Quisumbing, De Leon, Jr., and Corona, JJ., concur. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 125041 June 30, 2006

petitioner gave birth to twins Rica and Rina. According to petitioner, she, with the assistance of her second husband Danny Mangonon, raised her twin daughters as private respondents had totally abandoned them. At the time of the institution of the petition, Rica and Rina were about to enter college in the United States of America (USA) where petitioner, together with her daughters and second husband, had moved to and finally settled in. Rica was admitted to the University of Massachusetts (Amherst) while Rina was accepted by the Long Island University and Western New England College. Despite their admissions to said universities, Rica and Rina were, however, financially incapable of pursuing collegiate education because of the following: i) The average annual cost for college education in the US is about US$22,000/year, broken down as follows: Tuition US$13,000.00 Room & 5,000.00 Books 1,000.00 Yearly Transportation & Meal Allowance 3,000.00 Total US$ 22,000.00 or a total of US$44,000.00, more or less, for both Rica and Rina ii) Additionally, Rica and Rina need general maintenance support each in the amount of US$3,000.00 per year or a total of US$6,000 per year. iii) Unfortunately, petitioners monthly income from her 2 jobs is merely US$1,200 after taxes which she can hardly give general support to Rica and Rina, much less their required college educational support. iv) Neither can petitioners present husband be compelled to share in the general support and college education of Rica and Rina since he has his own Fees

son with petitioner and own daughter (also in college) to attend to. v) Worse, Rica and Rinas petitions for Federal Student Aid have been rejected by the U.S. Department of Education.6 Petitioner likewise averred that demands7 were made upon Federico and the latters father, Francisco,8 for general support and for the payment of the required college education of Rica and Rina. The twin sisters even exerted efforts to work out a settlement concerning these matters with respondent Federico and respondent Francisco, the latter being generally known to be financially welloff.9 These demands, however, remained unheeded. Considering the impending deadline for admission to college and the opening of classes, petitioner and her then minor children had no choice but to file the petition before the trial court. Petitioner also alleged that Rica and Rina are her legitimate daughters by respondent Federico since the twin sisters were born within seven months from the date of the annulment of her marriage to respondent Federico. However, as respondent Federico failed to sign the birth certificates of Rica and Rina, it was imperative that their status as legitimate children of respondent Federico, and as granddaughters of respondent Francisco, be judicially declared pursuant to Article 173 of the Family Code.10 As legitimate children and grandchildren, Rica and Rina are entitled to general and educational support under Articles 17411 and 195(b)12 in relation to Articles 194(1 and 2)13 and 199(c)14 of the Family Code. Petitioner alleged that under these provisions, in case of default on the part of the parents, the obligation to provide support falls upon the grandparents of the children; thus, respondent Federico, or in his default, respondent Francisco should be ordered to provide general and educational support for Rica and Rina in the amount of US$50,000.00, more or less, per year. Petitioner also claimed that she was constrained to seek support pendente lite from private respondents - who are millionaires with extensive assets both here and abroad - in view of the imminent opening of classes, the possibility of a protracted litigation, and Rica and Rinas lack of financial means to pursue their college education in the USA. In his Answer,15 respondent Francisco stated that as the birth certificates of Rica

MA. BELEN B. MANGONON, for and in behalf of her minor children REBECCA ANGELA DELGADO and REGINA ISABEL DELGADO. Petitioner, vs. HON. COURT OF APPEALS, HON. JUDGE JOSEFINA GUEVARA-SALONGA, Presiding Judge, RTC-Makati, Branch 149, FEDERICO C. DELGADO and FRANCISCO C. DELGADO, Respondents. DECISION CHICO-NAZARIO, J.: Before Us is a Petition for Review on Certiorari assailing the Decision1 of the Court of Appeals dated 20 March 1996, affirming the Order, dated 12 September 19952 of the Regional Trial Court (RTC), Branch 149, Makati, granting support pendente lite to Rebecca Angela (Rica) and Regina Isabel (Rina), both surnamed Delgado. The generative facts leading to the filing of the present petition are as follows: On 17 March 1994, petitioner Ma. Belen B. Mangonon filed, in behalf of her then minor children Rica and Rina, a Petition for Declaration of Legitimacy and Support, with application for support pendente lite with the RTC Makati.3In said petition, it was alleged that on 16 February 1975, petitioner and respondent Federico Delgado were civilly married by then City Court Judge Eleuterio Agudo in Legaspi City, Albay. At that time, petitioner was only 21 years old while respondent Federico was only 19 years old. As the marriage was solemnized without the required consent per Article 85 of the New Civil Code,4 it was annulled on 11 August 1975 by the Quezon City Juvenile and Domestic Relations Court.5 On 25 March 1976, or within seven months after the annulment of their marriage,

Board

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and Rina do not bear the signature of respondent Federico, it is essential that their legitimacy be first established as "there is no basis to claim support until a final and executory judicial declaration has been made as to the civil status of the children."16Whatever good deeds he may have done to Rica and Rina, according to respondent Francisco, was founded on pure acts of Christian charity. He, likewise, averred that the order of liability for support under Article 199 of the Family Code is not concurrent such that the obligation must be borne by those more closely related to the recipient. In this case, he maintained that responsibility should rest on the shoulders of petitioner and her second husband, the latter having voluntarily assumed the duties and responsibilities of a natural father. Even assuming that he is responsible for support, respondent Francisco contends that he could not be made to answer beyond what petitioner and the father could afford. On 24 May 1994, petitioner filed a Motion to Declare Defendant (respondent herein) Federico in Default.17 This was favorably acted upon by the trial court in the Order dated 16 June 1994.18 On 5 August 1994, respondent Federico filed a Motion to Lift Order of Default alleging that the summons and a copy of the petition were not served in his correct address.19 Attached thereto was his Answer20 where he claimed that petitioner had no cause of action against him. According to him, he left for abroad and stayed there for a long time "[w]ithin the first one hundred twenty (120) days of the three hundred days immediately preceding March 25, 1976" and that he only came to know about the birth of Rica and Rina when the twins introduced themselves to him seventeen years later. In order not to antagonize the two, respondent Federico claimed he did not tell them that he could not be their father. Even assuming that Rica and Rina are, indeed, his daughters, he alleged that he could not give them the support they were demanding as he was only making P40,000.00 a month. Finding sufficient ground in the motion filed by respondent Federico, the trial court lifted its Order dated 16 June 1994 and admitted his Answer.21 In the meantime, on 25 April 1994, petitioner filed an Urgent Motion to Set Application for Support Pendente Lite for Hearing because Rica and Rina both badly needed immediate financial resources for their education.22 This Motion was opposed by respondent Francisco.23 After both parties submitted supplemental pleadings to bolster their respective positions, the

trial court resolved the motion in an Order dated 12 September 1995 in this wise: WHEREFORE, in the light of the foregoing considerations, respondents are hereby directed to provide a monthly support (pendente lite) of P5,000.00 each or a total of P10,000.00 for the education of Rebecca Angela and Regina Isabel Delgado to be delivered within the first five days of each month without need of demand.24 Unsatisfied with the Order of the trial court, petitioner brought the case to the Court of Appeals via Petition for Certiorari. The Court of Appeals affirmed the holding of the trial court and disposed the petition in the following manner: WHEREFORE, the petition for certiorari is hereby DISMISSED and the Order of the lower court dated September 12, 1995 is hereby AFFIRMED.25 Petitioners Motion for Reconsideration was denied through the Resolution of the Court of Appeals dated 16 May 1996.26 Petitioner is now before this Court claiming that the Decision of the Court of Appeals was tainted with the following errors: RESPONDENT COURT OF APPEALS ERRED IN CONCLUDING THAT RESPONDENT JUDGE DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN FIXING THE AMOUNT OF MONTHLY SUPPORT PENDENTE LITE GRANTED TO PETITIONERS CHILDREN AT A MEASLEY P5,000.00 PER CHILD. I. RESPONDENT COURT IGNORED EVIDENCE ON RECORD OF THE FINANCIAL INCAPACITY OF RICA AND RINAS PARENTS IN DEFAULT OF WHOM THE OBLIGATION TO GIVE SUPPORT DEVOLVES ON THE GRANDFATHER. II. IT BEING ESTABLISHED THAT THE PERSON OBLIGED TO GIVE SUPPORT GRANDFATHER DON PACO IS UNDOUBTEDLY CAPABLE OF GIVING THE AMOUNT DEMANDED, RESPONDENT COURT ERRED IN NOT HOLDING THAT RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION IN FIXING AN AMOUNT OF SUPPORT PENDENTE LITE THAT IS OBVIOUSLY INADEQUATE TO SUPPORT THE EDUCATIONAL REQUIREMENTS OF THE RECIPIENTS.27

At the time of the filing of the present Petition, it is alleged that Rica had already entered Rutgers University in New Jersey with a budget of US$12,500.00 for academic year 1994-1995. She was able to obtain a tuition fee grant of US$1,190.00 and a Federal Stafford loan from the US government in the amount of US$2,615.00.28 In order to defray the remaining balance of Ricas education for said school year, petitioner claims that she had to secure a loan under the Federal Direct Student Loan Program. Meanwhile, Rina entered CW Post, Long Island University, where she was expected to spend US$20,000.00 for the school year 1994-1995. She was given a financial grant of US$6,000.00, federal work study assistance of US$2,000.00, and a Federal Stafford loan of US$2,625.00.29 Again, petitioner obtained a loan to cover the remainder of Rinas school budget for the year. Petitioner concedes that under the law, the obligation to furnish support to Rica and Rina should be first imposed upon their parents. She contends, however, that the records of this case demonstrate her as well as respondent Federicos inability to give the support needed for Rica and Rinas college education. Consequently, the obligation to provide support devolves upon respondent Francisco being the grandfather of Rica and Rina. Petitioner also maintains that as respondent Francisco has the financial resources to help defray the cost of Rica and Rinas schooling, the Court of Appeals then erred in sustaining the trial courts Order directing respondent Federico to pay Rica and Rina the amount of award P5,000.00 each as monthly support pendente lite. On the other hand, respondent Francisco argues that the trial court correctly declared that petitioner and respondent Federico should be the ones to provide the support needed by their twin daughters pursuant to Article 199 of the Family Code. He also maintains that aside from the financial package availed of by Rica and Rina in the form of state tuition aid grant, work study program and federal student loan program, petitioner herself was eligible for, and had availed herself of, the federal parent loan program based on her income and properties in the USA. He, likewise, insists that assuming he could be held liable for support, he has the option to fulfill the obligation either by paying the support or receiving and maintaining in the dwelling here in the Philippines the person claiming support.30 As an additional point to be considered by this Court, he posits the

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argument that because petitioner and her twin daughters are now US citizens, they cannot invoke the Family Code provisions on support as "[l]aws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad."31 Respondent Federico, for his part, continues to deny having sired Rica and Rina by reiterating the grounds he had previously raised before the trial court. Like his father, respondent Federico argues that assuming he is indeed the father of the twin sisters, he has the option under the law as to how he would provide support. Lastly, he assents with the declaration of the trial court and the Court of Appeals that the parents of a child should primarily bear the burden of providing support to their offspring. The petition is meritorious. As a preliminary matter, we deem it necessary to briefly discuss the essence of support pendente lite. The pertinent portion of the Rules of Court on the matter provides: Rule SUPPORT PENDENTE LITE 61

prior to the rendition of judgment or final order. Because of its provisional nature, a court does not need to delve fully into the merits of the case before it can settle an application for this relief. All that a court is tasked to do is determine the kind and amount of evidence which may suffice to enable it to justly resolve the application. It is enough that the facts be established by affidavits or other documentary evidence appearing in the record.32lavvphi1.net After the hearings conducted on this matter as well as the evidence presented, we find that petitioner was able to establish, by prima facie proof, the filiation of her twin daughters to private respondents and the twins entitlement to support pendente lite. In the words of the trial court By and large, the status of the twins as children of Federico cannot be denied. They had maintained constant communication with their grandfather Francisco. As a matter of fact, respondent Francisco admitted having wrote several letters to Rica and Rina (Exhs. A, B, C, D, E, F, G, G-1 to G-30). In the said letters, particularly at the bottom thereof, respondent Francisco wrote the names of Rica and Rina Delgado. He therefore was very well aware that they bear the surname Delgado. Likewise, he referred to himself in his letters as either "Lolo Paco" or "Daddy Paco." In his letter of October 13, 1989 (Exh. G-21), he said "as the grandfather, am extending a financial help of US$1,000.00." On top of this, respondent Federico even gave the twins a treat to Hongkong during their visit to the Philippines. Indeed, respondents, by their actuations, have shown beyond doubt that the twins are the children of Federico.33 Having addressed the issue of the propriety of the trial courts grant of support pendente lite in favor of Rica and Rina, the next question is who should be made liable for said award. The pertinent provision of the Family Code on this subject states: ART. 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided: (1) The spouse; (2) The descendants in the nearest degree; (3) The ascendants nearest degree; and in the

An eminent author on the subject explains that the obligation to give support rests principally on those more closely related to the recipient. However, the more remote relatives may be held to shoulder the responsibility should the claimant prove that those who are called upon to provide support do not have the means to do so.34 In this case, both the trial court and the Court of Appeals held respondent Federico liable to provide monthly support pendente lite in the total amount of P10,000.00 by taking into consideration his supposed income ofP30,000.00 to P40,000.00 per month. We are, however, unconvinced as to the veracity of this ground relied upon by the trial court and the Court of Appeals. It is a basic procedural edict that questions of fact cannot be the proper subject of a petition for review under Rule 45 of the 1997 Rules of Civil Procedure. The rule finds a more stringent application where the Court of Appeals upholds the findings of fact of the trial court; in such a situation, this Court, as the final arbiter, is generally bound to adopt the facts as determined by the appellate and the lower courts. This rule, however, is not ironclad as it admits of the following recognized exceptions: "(1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to that of the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion."35 The case at bar falls within the seventh and eleventh exceptions. The trial court gave full credence to respondent Federicos allegation in his Answer36 and his testimony37 as to the amount of his income. We have, however, reviewed the records of this case and found them bereft of evidence to support his assertions regarding his employment and his earning. Notably, he was even required by petitioners counsel to present to the

SECTION 1. Application.At the commencement of the proper action or proceeding, or at any time prior to the judgment or final order, a verified application for support pendente lite may be filed by any party stating the grounds for the claim and the financial conditions of both parties, and accompanied by affidavits, depositions or other authentic documents in support thereof. xxxx SEC. 4. Order.- The court shall determine provisionally the pertinent facts, and shall render such orders as justice and equity may require, having due regard to the probable outcome of the case and such other circumstances as may aid in the proper resolution of the question involved. If the application is granted, the court shall fix the amount of money to be provisionally paid or such other forms of support as should be provided, taking into account the necessities of the applicant and the resources or means of the adverse party, and the terms of payment or mode for providing the support. If the application is denied, the principal case shall be tried and decided as early as possible. Under this provision, a court may temporarily grant support pendente lite

(4) The brothers and sisters.

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court his income tax return and yet the records of this case do not bear a copy of said document.38 This, to our mind, severely undermines the truthfulness of respondent Federicos assertion with respect to his financial status and capacity to provide support to Rica and Rina. In addition, respondent Francisco himself stated in the witness stand that as far as he knew, his son, respondent Federico did not own anything "Atty. Lopez: I have here another letter under the letter head of Mr. & Mrs. Dany Mangonon, dated October 19, 1991 addressed to Mr. Francisco Delgado signed by "sincerely, Danny Mangonon, can you remember." xxxx WITNESS: A: I do remember this letter because it really irritated me so much that I threw it away in a waste basket. It is a very demanding letter, that is what I do not like at all. ATTY. LOPEZ: Q: It is stated in this letter that "I am making this request to you and not to your son, Rico, for reasons we both are aware of." Do you know what reason that is? A: Yes. The reason is that my son do not have fix employment and do not have fix salary and income and they want to depend on the lolo. x x x xlavvphi1.net Q: Would you have any knowledge if Federico owns a house and lot? A: Not that I know. I do not think he has anything. Q: How about a car? A: Well, his car is owned by my company.
39

A: Yes, sir. Q: What car are you driving, Mr. Witness? A: I am driving a lancer, sir. Q: What car, that registered in the name of the corporation? A: In the corporation, sir. Q: What corporation is that? A: Citadel Commercial, Inc., sir. Q: What properties, if any, are registered in your name, do you have any properties, Mr. Witness? A: None, sir."40 (Emphasis supplied.) Meanwhile, respondent Francisco asserts that petitioner possessed the capacity to give support to her twin daughters as she has gainful employment in the USA. He even went as far as to state that petitioners income abroad, when converted to Philippine peso, was much higher than that received by a trial court judge here in the Philippines. In addition, he claims that as she qualified for the federal parent loan program, she could very well support the college studies of her daughters. We are unconvinced. Respondent Franciscos assertion that petitioner had the means to support her daughters education is belied by the fact that petitioner was even forced by her financial status in the USA to secure the loan from the federal government. If petitioner were really making enough money abroad, she certainly would not have felt the need to apply for said loan. The fact that petitioner was compelled to take out a loan is enough indication that she did not have enough money to enable her to send her daughters to college by herself. Moreover, even Rica and Rina themselves were forced by the circumstances they found themselves in to secure loans under their names so as not to delay their entrance to college. There being prima facie evidence showing that petitioner and respondent Federico are the parents of Rica and Rina, petitioner and respondent Federico are primarily charged to support their childrens college education. In view however of their incapacities, the obligation to furnish said support should be borne by respondent Francisco. Under Article 199 of the Family Code, respondent Francisco, as the next immediate relative of Rica and Rina, is tasked to give support to his

granddaughters in default of their parents. It bears stressing that respondent Francisco is the majority stockholder and Chairman of the Board of Directors of Citadel Commercial, Incorporated, which owns and manages twelve gasoline stations, substantial real estate, and is engaged in shipping, brokerage and freight forwarding. He is also the majority stockholder and Chairman of the Board of Directors of Citadel Shipping which does business with Hyundai of Korea. Apart from these, he also owns the Citadel Corporation which, in turn, owns real properties in different parts of the country. He is likewise the Chairman of the Board of Directors of Isla Communication Co. and he owns shares of stocks of Citadel Holdings. In addition, he owns real properties here and abroad.41 It having been established that respondent Francisco has the financial means to support his granddaughters education, he, in lieu of petitioner and respondent Federico, should be held liable for support pendente lite. Anent respondent Francisco and Federicos claim that they have the option under the law as to how they could perform their obligation to support Rica and Rina, respondent Francisco insists that Rica and Rina should move here to the Philippines to study in any of the local universities. After all, the quality of education here, according to him, is at par with that offered in the USA. The applicable provision of the Family Code on this subject provides: Art. 204. The person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto. Under the abovecited provision, the obligor is given the choice as to how he could dispense his obligation to give support. Thus, he may give the determined amount of support to the claimant or he may allow the latter to stay in the family dwelling. The second option cannot be availed of in case there are circumstances, legal or moral, which should be considered. In this case, this Court believes that respondent Francisco could not avail himself of the second option. From the records, we gleaned that prior to the commencement of this action, the relationship between respondent Francisco, on one hand, and petitioner and her twin daughters, on the other, was indeed quite pleasant. The correspondences exchanged among them expressed profound feelings of thoughtfulness and concern for one

Respondent Federico himself admitted in court that he had no property of his own, thus: Q: You also mentioned that you are staying at Mayflower Building and you further earlier testified that this building belongs to Citadel Corporation. Do you confirm that?

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anothers well-being. The photographs presented by petitioner as part of her exhibits presented a seemingly typical family celebrating kinship. All of these, however, are now things of the past. With the filing of this case, and the allegations hurled at one another by the parties, the relationships among the parties had certainly been affected. Particularly difficult for Rica and Rina must be the fact that those who they had considered and claimed as family denied having any familial relationship with them. Given all these, we could not see Rica and Rina moving back here in the Philippines in the company of those who have disowned them. Finally, as to the amount of support pendente lite, we take our bearings from the provision of the law mandating the amount of support to be proportionate to the resources or means of the giver and to the necessities of the recipient.42 Guided by this principle, we hold respondent Francisco liable for half of the amount of school expenses incurred by Rica and Rina as support pendente lite. As established by petitioner, respondent Francisco has the financial resources to pay this amount given his various business endeavors. Considering, however, that the twin sisters may have already been done with their education by the time of the promulgation of this decision, we deem it proper to award support pendente lite in arrears43 to be computed from the time they entered college until they had finished their respective studies. The issue of the applicability of Article 15 of the Civil Code on petitioner and her twin daughters raised by respondent Francisco is best left for the resolution of the trial court. After all, in case it would be resolved that Rica and Rina are not entitled to support pendente lite, the court shall then order the return of the amounts already paid with legal interest from the dates of actual payment.44 WHEREFORE, premises considered, this Petition is PARTIALLY GRANTED. The Decision of the Court of Appeals dated 20 March 1996 and Resolution dated 16 May 1996 affirming the Order dated 12 September 1995 of the Regional Trial Court, Branch 149, Makati, fixing the amount of support pendente lite to P5,000.00 for Rebecca Angela and Regina Isabel, are hereby MODIFIED in that respondent Francisco Delgado is hereby held liable for support pendente lite in the amount to be determined by the trial court pursuant to this Decision. Let the records of this case be remanded to the trial court for the determination of the proper amount of support pendente lite for Rebecca Angela

and Regina Isabel as well as the arrearages due them in accordance with this Decision within ten (10) days from receipt hereof. Concomitantly, the trial court is directed to proceed with the trial of the main case and the immediate resolution of the same with deliberate dispatch. The RTC Judge, Branch 149, Makati, is further directed to submit a report of his compliance with the directive regarding the support pendente lite within ten (10) days from compliance thereof. SO ORDERED. MINITA V. CHICO-NAZARIO Associate Justice THIRD DIVISION G.R. No. 163209 SPOUSES PRUDENCIO and FILOMENA LIM, Petitioners, Present: CARPIO, J ., Chairperso n, QUISU MBING,* CHICONAZARIO, PERALTA, and ABAD,** JJ.

The Facts In 1979, respondent Cheryl S. Lim (Cheryl) married Edward Lim (Edward), son of petitioners. Cheryl bore Edward three children, respondents Lester Edward, Candice Grace and Mariano III. Cheryl, Edward and their children resided at the house of petitioners in Forbes Park, Makati City, together with Edwards ailing grandmother, Chua Giak and her husband Mariano Lim (Mariano). Edwards family business, which provided him with a monthly salary of P6,000, shouldered the family expenses. Cheryl had no steady source of income. On 14 October 1990, Cheryl abandoned the Forbes Park residence, bringing the children with her (then all minors), after a violent confrontation with Edward whom she caught with the in-house midwife of Chua Giak in what the trial court described a very compromising situation.[3] Cheryl, for herself and her children, sued petitioners, Edward, Chua Giak and Mariano (defendants) in the Regional Trial Court of Makati City, Branch 140 (trial court) for support. The trial court ordered Edward to provide monthly support of P6,000 pendente lite.[4] The Ruling of the Trial Court On 31 January 1996, the trial court rendered judgment ordering Edward and petitioners to jointly provide P40,000 monthly support to respondents, with Edward shouldering P6,000 and petitioners the balance of P34,000 subject to Chua Giaks subsidiary liability.[5] The defendants sought reconsideration, questioning their liability. The trial court, while denying reconsideration, clarified that petitioners and Chua Giak were held jointly liable with Edward because of the latters inability x x x to give sufficient support x x x.[6] Petitioners appealed to the Court of Appeals assailing, among others, their liability to support respondents. Petitioners argued that while Edwards income is insufficient, the law itself sanctions its effects by providing that legal support should be in keeping with the financial capacity of the family under Article 194 of the Civil Code, as amended by Executive Order No. 209 (The Family Code of the Philippines).[7] The Ruling of the Court of Appeals In its Decision dated 28 April 2003, the Court of Appeals affirmed the trial court. On the issue material to this appeal, that is, whether there is basis to hold petitioners,

- versus MA. CHERYL S. LIM, for herself and on behalf of her minor children LESTER EDWARD S. LIM, CANDICE GRACE S. LIM, and MARIANO S. LIM, III, Respondents. Promulgated: October 30, 2009 x ------------------------------------------------------------------ x DECISION CARPIO, J.: The Case For review[1] is the Decision[2] of the Court of Appeals, dated 28 April 2003, ordering petitioners Prudencio and Filomena Lim (petitioners) to provide legal support to respondents Cheryl, Lester Edward, Candice Grace and Mariano III, all surnamed Lim (respondents).

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as Edwards parents, liable with him to support respondents, the Court of Appeals held:

limiting petitioners liability to the amount of monthly support needed by respondents Lester Edward, Candice Grace and Mariano III only. Petitioners Liable to Provide Support

The law on support under Article 195 of the Family Code is clear on this matter. Parents and their legitimate children are obliged to mutually support one another and this obligation extends down to the legitimate grandchildren and great grandchildren. In connection with this provision, Article 200 paragraph (3) of the Family Code clearly provides that should the person obliged to give support does not have sufficient means to satisfy all claims, the other persons enumerated in Article 199 in its order shall provide the necessary support. This is because the closer the relationship of the relatives, the stronger the tie that binds them. Thus, the obligation to support is imposed first upon the shoulders of the closer relatives and only in their default is the obligation moved to the next nearer relatives and so on.[8] Petitioners sought reconsideration but the Court of Appeals denied their motion in the Resolution dated 12 April 2004. Hence, this petition. The Issue The issue is whether petitioners are concurrently liable with Edward to provide support to respondents. The Ruling of the Court We rule in the affirmative. However, we modify the appealed judgment by

but only to their Grandchildren By statutory[9] and jurisprudential mandate,[10] the liability of ascendants to provide legal support to their descendants is beyond cavil. Petitioners themselves admit as much they limit their petition to the narrow question of when their liability is triggered, not if they are liable. Relying on provisions[11] found in Title IX of the Civil Code, as amended, on Parental Authority, petitioners theorize that their liability is activated only upon default of parental authority, conceivably either by its termination[12] or suspension[13] during the childrens minority. Because at the time respondents sued for support, Cheryl and Edward exercised parental authority over their children,[14]petitioners submit that the obligation to support the latters offspring ends with them.

their grandparents if they have parents (ascendants of nearest degree) who are capable of supporting them. This is so because we have to follow the order of support under Art. 199. We agree with this view. xxxx There is no showing that private respondent is without means to support his son; neither is there any evidence to prove that petitioner, as the paternal grandmother, was willing to voluntarily provide for her grandson's legal support. x x x[18] (Emphasis supplied; internal citations omitted) Here, there is no question that Cheryl is unable to discharge her obligation to provide sufficient legal support to her children, then all school-bound. It is also undisputed that the amount of support Edward is able to give to respondents, P6,000 a month, is insufficient to meet respondents basic needs. This inability of Edward and Cheryl to sufficiently provide for their children shifts a portion of their obligation to the ascendants in the nearest degree, both in the paternal (petitioners) and maternal[19] lines, following the ordering in Article 199. To hold otherwise, and thus subscribe to petitioners theory, is to sanction the anomalous scenario of tolerating extreme material deprivation of children because of parental inability to give adequate support even if ascendants one degree removed are more than able to fill the void. However, petitioners partial concurrent obligation extends only to their descendants as this word is commonly understood to refer to relatives, by blood of lower degree. As petitioners grandchildren by blood, only respondents Lester Edward, Candice Grace and Mariano III belong to this category. Indeed, Cheryls right to receive support from the Lim family extends only to her husband Edward, arising from their marital bond.[20] Unfortunately, Cheryls share from the amount of monthly support the trial court awarded cannot be determined from the records. Thus, we are constrained to remand the

Neither the text of the law nor the teaching of jurisprudence supports this severe constriction of the scope of familial obligation to give support. In the first place, the governing text are the relevant provisions in Title VIII of the Civil Code, as amended, on Support, not the provisions in Title IX on Parental Authority. While both areas share a common ground in that parental authority encompasses the obligation to provide legal support,[15] they differ in other concerns including the duration of the obligation and itsconcurrence among relatives of differing degrees.[16] Thus, although the obligation to provide support arising from parental authority ends upon the emancipation of the child,[17]the same obligation arising from spousal and general familial ties ideally lasts during the obligee's lifetime.. Also, while parental authority under Title IX (and the correlative parental rights) pertains to parents, passing to ascendants only upon its termination or suspension, the obligation to provide legal support passes on to ascendants not only upon default of the parents but also for the latters inability to provide sufficient support. As we observed in another case raising the ancillary issue of an ascendants obligation to give support in light of the fathers sufficient means:

Professor Pineda is of the view that grandchildren cannot demand support directly from

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case to the trial court for this limited purpose.[21] Petitioners Precluded from Availing of the Alternative Option Under Article 204 of the Civil Code, as Amended As an alternative proposition, petitioners wish to avail of the option in Article 204 of the Civil Code, as amended, and pray that they be allowed to fulfill their obligation by maintaining respondents at petitioners Makati residence. The option is unavailable to petitioners. The application of Article 204 which provides that The person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obst acle thereto. (Emphasis supplied)

140, for further proceedings consistent with this ruling. SO ORDERED. ANTONIO T. CARPIO Associate Justice

1990. Teresita blamed Reynaldo for the break-up, stating he was always nagging her about money matters. Reynaldo, on the other hand, contended that Teresita was a spendthrift, buying expensive jewelry and antique furniture instead of attending to household expenses. Instead of giving their marriage a second chance as allegedly pleaded by Reynaldo, Teresita left Reynaldo and the children and went back to California. She claims, however, that she spent a lot of money on long distance telephone calls to keep in constant touch with her children. Reynaldo brought his children home to the Philippines, but because his assignment in Pittsburgh was not yet completed, he was sent back by his company to Pittsburgh. He had to leave his children with his sister, copetitioner Guillerma Layug and her family. Teresita claims that she did not immediately follow her children because Reynaldo filed a criminal case for bigamy against her and she was afraid of being arrested. The judgment of conviction in the bigamy case was actually rendered only on September 29, 1994. (Per Judge Harriet O. Demetriou, Branch 70, RTC, Pasig, pp. 210222,Rollo). Teresita, meanwhile, decided to return to the Philippines and on December 8, 1992 and filed the petition for a writ of habeas corpus against herein two petitioners to gain custody over the children, thus starting the whole proceedings now reaching this Court. On June 30, 1993, the trial court dismissed the petition for habeas corpus. It suspended Teresita's parental authority over Rosalind and Reginald and declared Reynaldo to have sole parental authority over them but with rights of visitation to be agreed upon by the parties and to be approved by the Court. On February 16, 1994, the Court of Appeals per Justice Isnani, with Justices de Pano and Ibay-Somera concurring, reversed the trial court's decision. It gave custody to Teresita and visitation rights on weekends to Reynaldo. Petitioners now come to this Court on a petition for review, in the main contending that the Court of Appeals disregarded the factual findings of the trial court; that the Court of Appeals further engaged in speculations and conjectures, resulting in its erroneous conclusion that custody of the children should be given to respondent Teresita. We believe that respondent court resolved the question of custody over the children

PARENTAL AUTHORITY Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 115640 March 15, 1995 REYNALDO ESPIRITU and GUILLERMA LAYUG, petitioners, vs. COURT OF APPEALS and TERESITA MASAUDING, respondents. MELO, J.: This case concerns a seemingly void marriage and a relationship which went sour. The innocent victims are two children horn out of the same union. Upon this Court now falls the not too welcome task of deciding the issue of who, between the father and mother, is more suitable and better qualified in helping the children to grow into responsible, well-adjusted, and happy young adulthood. Petitioner Reynaldo Espiritu and respondent Teresita Masauding first met sometime in 1976 in Iligan City where Reynaldo was employed by the National Steel Corporation and Teresita was employed as a nurse in a local hospital. In 1977, Teresita left for Los Angeles, California to work as a nurse. She was able to acquire immigrant status sometime later. In 1984, Reynaldo was sent by his employer, the National Steel Corporation, to Pittsburgh, Pennsylvania as its liaison officer and Reynaldo and Teresita then began to maintain a common law relationship of husband and wife. On August 16, 1986, their daughter, Rosalind Therese, was born. On October 7, 1987, while they were on a brief vacation in the Philippines, Reynaldo and Teresita got married, and upon their return to the United States, their second child, a son, this time, and given the name Reginald Vince, was born on January 12, 1988. The relationship of the couple deteriorated until they decided to separate sometime in

is subject to its exception clause. Here, the persons entitled to receive support are petitioners grandchildren and daughter-inlaw. Granting petitioners the option in Article 204 will secure to the grandchildren a well-provided future; however, it will also force Cheryl to return to the house which, for her, is the scene of her husbands infidelity. While not rising to the level of a legal obstacle, as indeed, Cheryls charge against Edward for concubinage did not prosper for insufficient evidence, her steadfast insistence on its occurrence amounts to a moral impediment bringing the case within the ambit of the exception clause of Article 204, precluding its application. WHEREFORE, we DENY the petition. We AFFIRM the Decision of the Court of Appeals, dated 28 April 2003, and its Resolution dated 12 April 2004 with theMODIFICATION that petitioners Prudencio and Filomena Lim are liable to provide support only to respondents Lester Edward, Candice Grace and Mariano III, all surnamed Lim. We REMAND the case to the Regional Trial Court of Makati City, Branch

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through an automatic and blind application of the age proviso of Article 363 of the Civil Code which reads: Art. 363. In all questions on the care, custody, education and property of the children, the latter's welfare shall be paramount. No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure. and of Article 213 of the Family Code which in turn provides: Art. 213. In case of separation of the parents parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age unless the parent chosen is unfit. The decision under review is based on the report of the Code Commission which drafted Article 213 that a child below seven years still needs the loving, tender care that only a mother can give and which, presumably, a father cannot give in equal measure. The commentaries of a member of the Code Commission, former Court of Appeals Justice Alicia Sempio-Diy, in a textbook on the Family Code, were also taken into account. Justice Diy believes that a child below seven years should still be awarded to her mother even if the latter is a prostitute or is unfaithful to her husband. This is on the theory that moral dereliction has no effect on a baby unable to understand such action. (Handbook on the Family Code of the Philippines, 1988 Ed., p. 297.) The Court of Appeals was unduly swayed by an abstract presumption of law rather than an appreciation of relevant facts and the law which should apply to those facts. The task of choosing the parent to whom custody shall be awarded is not a ministerial function to be determined by a simple determination of the age of a minor child. Whether a child is under or over seven

years of age, the paramount criterion must always be the child's interests. Discretion is given to the court to decide who can best assure the welfare of the child, and award the custody on the basis of that consideration. In Unson III vs. Navarro (101 SCRA 183 [1980]), we laid down the rule that "in all controversies regarding the custody of minors, the sole and foremost consideration is the physical, education, social and moral welfare of the child concerned, taking into account the respective resources and social and moral situations of the contending parents", and in Medina vs. Makabali (27 SCRA 502 [1969]), where custody of the minor was given to a non-relative as against the mother, then the country's leading civilist, Justice J.B.L. Reyes, explained its basis in this manner: . . . While our law recognizes the right of a parent to the custody of her child, Courts must not lose sight of the basic principle that "in all questions on the care, custody, education and property of children, the latter's welfare shall be paramount" (Civil Code of the Philippines. Art. 363), and that for compelling reasons, even a child under seven may be ordered separated from the mother (do). This is as it should be, for in the continual evolution of legal institutions, the patria potestas has been transformed from the jus vitae ac necis (right of life and death) of the Roman law, under which the offspring was virtually a chattel of his parents into a radically different institution, due to the influence of Christian faith and doctrines. The obligational aspect is now supreme. As pointed out by Puig Pena, now "there is no power, but a task; no complex of rights (of parents) but a sum of duties; no sovereignty, but a

sacred trust for the welfare of the minor." As a result, the right of parents to the company and custody of their children is but ancillary to the proper discharge of parental duties to provide the children with adequate support, education, moral, intellectual and civic training and development (Civil Code, Art. 356). (pp. 504-505.) In ascertaining the welfare and best interests of the child, courts are mandated by the Family Code to take into account all relevant considerations. If a child is under seven years of age, the law presumes that the mother is the best custodian. The presumption is strong but it is not conclusive. It can be overcome by "compelling reasons". If a child is over seven, his choice is paramount but, again, the court is not bound by that choice. In its discretion, the court may find the chosen parent unfit and award custody to the other parent, or even to a third party as it deems fit under the circumstances. In the present case, both Rosalind and Reginald are now over seven years of age. Rosalind celebrated her seventh birthday on August 16, 1993 while Reginald reached the same age on January 12, 1995. Both are studying in reputable schools and appear to be fairly intelligent children, quite capable of thoughtfully determining the parent with whom they would want to live. Once the choice has been made, the burden returns to the court to investigate if the parent thus chosen is unfit to assume parental authority and custodial responsibility. Herein lies the error of the Court of Appeals. Instead of scrutinizing the records to discover the choice of the children and rather than verifying whether that parent is fit or unfit, respondent court simply followed statutory presumptions and general propositions applicable to ordinary or common situations. The seven-year age limit was mechanically treated as an arbitrary cut off period and not a guide based on a strong presumption. A scrutiny of the pleadings in this case indicates that Teresita, or at least, her counsel are more intent on emphasizing the "torture and agony" of a mother separated

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from her children and the humiliation she suffered as a result of her character being made a key issue in court rather than the feelings and future, the best interests and welfare of her children. While the bonds between a mother and her small child are special in nature, either parent, whether father or mother, is bound to suffer agony and pain if deprived of custody. One cannot say that his or her suffering is greater than that of the other parent. It is not so much the suffering, pride, and other feelings of either parent but the welfare of the child which is the paramount consideration. We are inclined to sustain the findings and conclusions of the regional trial court because it gave greater attention to the choice of Rosalind and considered in detail all the relevant factors bearing on the issue of custody. When she was a little over 5 years old, Rosalind was referred to a child psychologist, Rita Flores Macabulos, to determine the effects of uprooting her from the Assumption College where she was studying. Four different tests were administered. The results of the tests are quite revealing. The responses of Rosalind about her mother were very negative causing the psychologist to delve deeper into the child's anxiety. Among the things revealed by Rosalind was an incident where she saw her mother hugging and kissing a "bad" man who lived in their house and worked for her father. Rosalind refused to talk to her mother even on the telephone. She tended to be emotionally emblazed because of constant fears that she may have to leave school and her aunt's family to go back to the United States to live with her mother. The 5-1/2 page report deals at length with feelings of insecurity and anxiety arising from strong conflict with the mother. The child tried to compensate by having fantasy activities. All of the 8 recommendations of the child psychologist show that Rosalind chooses petitioners over the private respondent and that her welfare will be best served by staying with them (pp. 199-205, Rollo). At about the same time, a social welfare case study was conducted for the purpose of securing the travel clearance required before minors may go abroad. Social Welfare Officer Emma D. Estrada Lopez, stated that the child Rosalind refused to go back to the United States and be reunited with her mother. She felt unloved and uncared for. Rosalind was more attached to her Yaya who did everything for her and Reginald. The child was found suffering from emotional shock caused by her mother's infidelity. The application for travel clearance was recommended for denial (pp. 206-209, Rollo).

Respondent Teresita, for her part, argues that the 7-year age reference in the law applies to the date when the petition for a writ of habeas corpus is filed, not to the date when a decision is rendered. This argument is flawed. Considerations involving the choice made by a child must be ascertained at the time that either parent is given custody over the child. The matter of custody is not permanent and unalterable. If the parent who was given custody suffers a future character change and becomes unfit, the matter of custody can always be re-examined and adjusted (Unson III v. Navarro, supra, at p. 189). To be sure, the welfare, the best interests, the benefit, and the good of the child must be determined as of the time that either parent is chosen to be the custodian. At the present time, both children are over 7 years of age and are thus perfectly capable of making a fairly intelligent choice. According to respondent Teresita, she and her children had tearful reunion in the trial court, with the children crying, grabbing, and embracing her to prevent the father from taking them away from her. We are more inclined to believe the father's contention that the children ignored Teresita in court because such an emotional display as described by Teresita in her pleadings could not have been missed by the trial court. Unlike the Justices of the Court of Appeals Fourth Division, Judge Lucas P. Bersamin personally observed the children and their mother in the courtroom. What the Judge found is diametrically opposed to the contentions of respondent Teresita. The Judge had this to say on the matter. And, lastly, the Court cannot look at petitioner [Teresita] in similar light, or with more understanding, especially as her conduct and demeanor in the courtroom (during most of the proceedings) or elsewhere (but in the presence of the undersigned presiding judge) demonstrated her ebulent temper that tended to corroborate the alleged violence of her physical punishment of the children (even if only for ordinary disciplinary purposes) and emotional

instability, typified by her failure (or refusal?) to show deference and respect to the Court and the other parties (pp. 12-13, RTC Decision) Respondent Teresita also questions the competence and impartiality of the expert witnesses. Respondent court, in turn, states that the trial court should have considered the fact that Reynaldo and his sister, herein petitioner Guillerma Layug, hired the two expert witnesses. Actually, this was taken into account by the trial court which stated that the allegations of bias and unfairness made by Teresita against the psychologist and social worker were not substantiated. The trial court stated that the professional integrity and competence of the expert witnesses and the objectivity of the interviews were unshaken and unimpeached. We might add that their testimony remain uncontroverted. We also note that the examinations made by the experts were conducted in late 1991, well over a year before the filing by Teresita of the habeas corpus petition in December, 1992. Thus, the examinations were at that time not intended to support petitioners' position in litigation, because there was then not even an impending possibility of one. That they were subsequently utilized in the case a quo when it did materialize does not change the tenor in which they were first obtained. Furthermore, such examinations, when presented to the court must be construed to have been presented not to sway the court in favor of any of the parties, but to assist the court in the determination of the issue before it. The persons who effected such examinations were presented in the capacity of expert witnesses testifying on matters within their respective knowledge and expertise. On this matter, this Court had occasion to rule in the case of Sali vs. Abukakar, et al. (17 SCRA 988 [1966]). The fact that, in a particular litigation, an NBI expert examines certain contested documents, at the request, not of a public officer or agency of the Government, but of a private litigant, does not necessarily nullify the examination thus made. Its purpose, presumably, to assist

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the court having jurisdiction over said litigation, in the performance of its duty to settle correctly the issues relative to said documents. Even a non-expert private individual may examine the same, if there are facts within his knowledge which may help, the court in the determination of said issue. Such examination, which may properly be undertaken by a nonexpert private individual, does not, certainly become null and void when the examiner is an expert and/or an officer of the NBI. (pp. 991-992.) In regard to testimony of expert witnesses it was held in Salomon, et al. vs. Intermediate Appellate Court, et al. (185 SCRA 352 [1990]): . . . Although courts are not ordinarily bound by expert testimonies, they may place whatever weight they choose upon such testimonies in accordance with the facts of the case. The relative weight and sufficiency of expert testimony is peculiarly within the province of the trial court to decide, considering the ability and character of the witness, his actions upon the witness stand, the weight and process of the reasoning by which he has supported his opinion, his possible bias in favor of the side for whom he testifies, the fact that he is a paid witness, the relative opportunities for study and observation of the matters about which he testifies, and any

other matters which reserve to illuminate his statements. The opinion of the expert may not be arbitrarily rejected; it is to be considered by the court in view of all the facts and circumstances in the case and when common knowledge utterly fails, the expert opinion may be given controlling effect (20 Am. Jur., 1056-1058). The problem of the credibility of the expert witness and the evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable in the absence of an abuse of that discretion. (p. 359) It was in the exercise of this discretion, coupled with the opportunity to assess the witnesses' character and to observe their respective demeanor that the trial court opted to rely on their testimony, and we believe that the trial court was correct in its action. Under direct examination an February 4, 1993, Social Worker Lopez stated that Rosalind and her aunt were about to board a plane when they were off-loaded because there was no required clearance. They were referred to her office, at which time Reginald was also brought along and interviewed. One of the regular duties of Social Worker Lopez in her job appears to be the interview of minors who leave for abroad with their parents or other persons. The interview was for purposes of foreign travel by a 5-year old child and had nothing to do with any pending litigation. On crossexamination, Social Worker Lopez stated that her assessment of the minor's hatred for her mother was based on the disclosures of the minor. It is inconceivable, much less presumable that Ms. Lopez would compromise her position, ethics, and the public trust reposed on a person of her position in the course of doing her job by falsely testifying just to support the position of any litigant. The psychologist, Ms. Macabulos, is a B.S. magna cum laude graduate in Psychology and an M.A. degree holder also in Psychology with her thesis graded

"Excellent". She was a candidate for a doctoral degree at the time of the interview. Petitioner Reynaldo may have shouldered the cost of the interview but Ms. Macabulos services were secured because Assumption College wanted an examination of the child for school purposes and not because of any litigation. She may have been paid to examine the child and to render a finding based on her examination, but she was not paid to fabricate such findings in favor of the party who retained her services. In this instance it was not even petitioner Reynaldo but the school authorities who initiated the same. It cannot be presumed that a professional of her potential and stature would compromise her professional standing. Teresita questions the findings of the trial court that: 1. Her morality is questionable as shown by her marrying Reynaldo at the time she had a subsisting marriage with another man. 2. She is guilty of grave indiscretion in carrying on a love affair with one of the Reynaldo's fellow NSC employees. 3. She is incapable of providing the children with necessities and conveniences commensurate to their social standing because she does not even own any home in the Philippines. 4. She is emotionally unstable with ebullient temper. It is contended that the above findings do not constitute the compelling reasons under the law which would justify depriving her of custody over the children; worse, she claims, these findings are non-existent and have not been proved by clear and convincing evidence. Public and private respondents give undue weight to the matter of a child under 7 years of age not to be separated from the mother, without considering what the law itself denominates as compelling reasons or relevant considerations to otherwise decree. In the Unson III case, earlier mentioned, this Court stated that it found

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no difficulty in not awarding custody to the mother, it being in the best interest of the child "to be freed from the obviously unwholesome, not to say immoral influence, that the situation where [the mother] had placed herself . . . might create in the moral and social outlook of [the child] who was in her formative and most impressionable stage . . ." Then too, it must be noted that both Rosalind and Reginald are now over 7 years of age. They understand the difference between right and wrong, ethical behavior and deviant immorality. Their best interests would be better served in an environment characterized by emotional stability and a certain degree of material sufficiency. There is nothing in the records to show that Reynaldo is an "unfit" person under Article 213 of the Family Code. In fact, he has been trying his best to give the children the kind of attention and care which the mother is not in a position to extend. The argument that the charges against the mother are false is not supported by the records. The findings of the trial court are based on evidence. Teresita does not deny that she was legally married to Roberto Lustado on December 17, 1984 in California (p. 13, Respondent's Memorandum; p. 238, Rollo; pp. 11, RTC Decision). Less than a year later, she had already driven across the continental United States to commence living with another man, petitioner Reynaldo, in Pittsburgh. The two were married on October 7, 1987. Of course, to dilute this disadvantage on her part, this matter of her having contracted a bigamous marriage later with Reynaldo, Teresita tried to picture Reynaldo as a rapist, alleging further that she told Reynaldo about her marriage to Lustado on the occasion when she was raped by Reynaldo. Expectedly, Judge Harriet Demetriou of the Pasig RTC lent no weight to such tale. And even if this story were given credence, it adds to and not subtracts from the conviction of this Court about Teresita's values. Rape is an insidious crime against privacy. Confiding to one's potential rapist about a prior marriage is not a very convincing indication that the potential victim is averse to the act. The implication created is that the act would be acceptable if not for the prior marriage. More likely is Reynaldo's story that he learned of the prior marriage only much later. In fact, the rape incident itself is unlikely against a woman who had driven three days and three nights from California, who went straight to the house of Reynaldo in Pittsburgh and upon arriving went to bed and, who immediately thereafter started to

live with him in a relationship which is marital in nature if not in fact. Judge Bersamin of the court a quo believed the testimony of the various witnesses that while married to Reynaldo, Teresita entered into an illicit relationship with Perdencio Gonzales right there in the house of petitioner Reynaldo and respondent Teresita. Perdencio had been assigned by the National Steel Corporation to assist in the project in Pittsburgh and was staying with Reynaldo, his co-employee, in the latter's house. The record shows that the daughter Rosalind suffered emotional disturbance caused by the traumatic effect of seeing her mother hugging and kissing a boarder in their house. The record also shows that it was Teresita who left the conjugal home and the children, bound for California. When Perdencio Gonzales was reassigned to the Philippines, Teresita followed him and was seen in his company in a Cebu hotel, staying in one room and taking breakfast together. More significant is that letters and written messages from Teresita to Perdencio were submitted in evidence (p.12, RTC Decision). The argument that moral laxity or the habit of flirting from one man to another does not fall under "compelling reasons" is neither meritorious nor applicable in this case. Not only are the children over seven years old and their clear choice is the father, but the illicit or immoral activities of the mother had already caused emotional disturbances, personality conflicts, and exposure to conflicting moral values, at least in Rosalind. This is not to mention her conviction for the crime of bigamy, which from the records appears to have become final (pp. 210-222, Rollo). Respondent court's finding that the father could not very well perform the role of a sole parent and substitute mother because his job is in the United States while the children will be left behind with their aunt in the Philippines is misplaced. The assignment of Reynaldo in Pittsburgh is or was a temporary one. He was sent there to oversee the purchase of a steel mill component and various equipment needed by the National Steel Corporation in the Philippines. Once the purchases are completed, there is nothing to keep him there anymore. In fact, in a letter dated January 30, 1995, Reynaldo informs this Court of the completion of his assignment abroad and of his permanent return to the Philippines (ff. p. 263, Rollo). The law is more than satisfied by the judgment of the trial court. The children are now both over seven years old. Their choice of the parent with whom they prefer to stay

is clear from the record. From all indications, Reynaldo is a fit person, thus meeting the two requirements found in the first paragraph of Article 213 of the Family Code. The presumption under the second paragraph of said article no longer applies as the children are over seven years. Assuming that the presumption should have persuasive value for children only one or two years beyond the age of seven years mentioned in the statute, there are compelling reasons and relevant considerations not to grant custody to the mother. The children understand the unfortunate shortcomings of their mother and have been affected in their emotional growth by her behavior. WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals is reversed and set aside, and the decision of Branch 96 of the Regional Trial Court of the National Capital Judicial Region stationed in Quezon City and presided over by the Honorable Lucas P. Bersamin in its Civil Case No. Q-92-14206 awarding custody of the minors Rosalind and Reginald Espiritu to their father, Reynaldo Espiritu, is reinstated. No special pronouncement is made as to costs. SO ORDERED. Feliciano, Romero, Vitug and Francisco, JJ., concur. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 113054 March 16, 1995 LEOUEL SANTOS, SR., petitioner-appellant, vs. COURT OF APPEALS, and SPOUSES LEOPOLDO and OFELIA BEDIA, respondents-appellees. ROMERO, J.: In this petition for review, we are asked to overturn the decision of the Court of Appeals 1 granting custody of six-year old Leouel Santos, Jr. to his maternal grandparents and not to his father, Santos, Sr. What is sought is a decision which should definitively settle the matter of the care, custody and control of the boy. Happily, unlike King Solomon, we need not merely rely on a "wise and understanding heart," for there is man's law to guide us and that is, the Family Code.

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The antecedent facts giving rise to the case at bench are as follows: Petitioner Leouel Santos, Sr., an army lieutenant, and Julia Bedia a nurse by profession, were married in Iloilo City in 1986. Their union beget only one child, Leouel Santos, Jr. who was born July 18, 1987. From the time the boy was released from the hospital until sometime thereafter, he had been in the care and custody of his maternal grandparents, private respondents herein, Leopoldo and Ofelia Bedia. Petitioner and wife Julia agreed to place Leouel Jr. in the temporary custody of the latter's parents, the respondent spouses Bedia. The latter alleged that they paid for all the hospital bills, as well as the subsequent support of the boy because petitioner could not afford to do so. The boy's mother, Julia Bedia-Santos, left for the United States in May 1988 to work. Petitioner alleged that he is not aware of her whereabouts and his efforts to locate her in the United States proved futile. Private respondents claim that although abroad, their daughter Julia had been sending financial support to them for her son. On September 2, 1990, petitioner along with his two brothers, visited the Bedia household, where three-year old Leouel Jr. was staying. Private respondents contend that through deceit and false pretensions, petitioner abducted the boy and clandestinely spirited him away to his hometown in Bacong, Negros Oriental. The spouses Bedia then filed a "Petition for Care, Custody and Control of Minor Ward Leouel Santos Jr.," before the Regional Trial Court of Iloilo City, with Santos, Sr. as respondent. 2 After an ex-parte hearing on October 8, 1990, the trial court issued an order on the same day awarding custody of the child Leouel Santos, Jr. to his grandparents, Leopoldo and Ofelia Bedia. 3 Petitioner appealed this Order to the Court of Appeals. 4 In its decision dated April 30, 1992, respondent appellate court affirmed the trial court's order. 5 His motion for reconsideration having been denied, 6 petitioner now brings the instant petition for review for a reversal of the appellate court's decision.

The Court of Appeals erred, according to petitioner, in awarding custody of the boy to his grandparents and not to himself. He contends that since private respondents have failed to show that petitioner is an unfit and unsuitable father, substitute parental authority granted to the boy's grandparents under Art. 214 of the Family Code is inappropriate. Petitioner adds that the reasons relied upon by the private respondents in having custody over the boy, are flimsy and insufficient to deprive him of his natural and legal right to have custody. On the other hand, private respondents aver that they can provide an airconditioned room for the boy and that petitioner would not be in a position to take care of his son since he has to be assigned to different places. They also allege that the petitioner did not give a single centavo for the boy's support and maintenance. When the boy was about to be released from the hospital, they were the ones who paid the fees because their daughter and petitioner had no money. Besides, Julia Bedia Santos, their daughter, had entrusted the boy to them before she left for the United States. Furthermore, petitioner's use of trickery and deceit in abducting the child in 1990, after being hospitably treated by private respondents, does not speak well of his fitness and suitability as a parent. The Bedias argue that although the law recognizes the right of a parent to his child's custody, ultimately the primary consideration is what is best for the happiness and welfare of the latter. As maternal grandparents who have amply demonstrated their love and affection for the boy since his infancy, they claim to be in the best position to promote the child's welfare. The issue to be resolved here boils down to who should properly be awarded custody of the minor Leouel Santos, Jr. The right of custody accorded to parents springs from the exercise of parental authority. Parental authority orpatria potestas in Roman Law is the juridical institution whereby parents rightfully assume control and protection of their unemancipated children to the extent required by the latter' s needs. 7 It is a mass of rights and obligations which the law grants to parents for the purpose of the children's physical preservation and development, as well as the cultivation of their intellect and the education of their heart and senses. 8 As regards parental authority, "there is no power, but a task; no complex of rights, but a sum of duties; no

sovereignty but a sacred trust for the welfare of the minor." 9 Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. 10 The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children's home or an orphan institution. 11 When a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation of parental authority. 12 Even if a definite renunciation is manifest, the law still disallows the same. 13 The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep them in their custody and company. 14 The child's welfare is always the paramount consideration in all questions concerning his care and custody. 15 The law vests on the father and mother joint parental authority over the persons of their common children. 16 In case of absence or death of either parent, the parent present shall continue exercising parental authority. 17 Only in case of the parents' death, absence or unsuitability may substitute parental authority be exercised by the surviving grandparent. 18 The situation obtaining in the case at bench is one where the mother of the minor Santos, Jr., is working in the United States while the father, petitioner Santos, Sr., is present. Not only are they physically apart but are also emotionally separated. There has been no decree of legal separation and petitioner's attempt to obtain an annulment of the marriage on the ground of psychological incapacity of his wife has failed. 19 Petitioner assails the decisions of both the trial court and the appellate court to award custody of his minor son to his parents-inlaw, the Bedia spouses on the ground that under Art. 214 of the Family Code, substitute parental authority of the grandparents is proper only when both parents are dead, absent or unsuitable. Petitioner's unfitness, according to him, has not been successfully shown by private respondents. The Court of Appeals held that although there is no evidence to show that petitioner (Santos Sr.) is "depraved, a habitual drunkard or poor, he may nevertheless be considered, as he is in fact so considered, to

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be unsuitable to be allowed to have custody of minor Leouel Santos Jr." 20 The respondent appellate court, in affirming the trial court's order of October 8, 1990, adopted as its own the latter's observations, to wit: From the evidence adduced, this Court is of the opinion that it is to be (sic) best interest of the minor Leouel Santos, Jr. that he be placed under the care, custody, and control of his maternal grandparents the petitioners herein. The petitioners have amply demonstrated their love and devotion to their grandson while the natural father, respondent herein, has shown little interest in his welfare as reflected by his conduct in the past. Moreover the fact that petitioners are welloff financially, should be carefully considered in awarding to them the custody of the minor herein, lest the breaking of such ties with his maternal grandparents might deprive the boy of an eventual college education and other material advantages (Consaul vs. Consaul, 63 N.Y.S. 688). Respondent had never given any previous financial support to his son, while, upon the other hand, the latter receives so much bounty from his maternal grandparents and his mother as well, who is now gainfully employed in the United States. Moreover, the fact that respondent, as a military personnel who has to shuttle from one assignment to another, and, in these troubled times, may have pressing and compelling military duties which may prevent him from attending to his son at times when the latter needs him most, militates strongly against said respondent. Additionally, the child is sickly and asthmatic and needs the loving and tender care of those who can provide for it. 21 We find the aforementioned considerations insufficient to defeat petitioner's parental authority and the concomitant right to have custody over the minor Leouel Santos, Jr., particularly since he has not been shown to be an unsuitable and unfit parent. Private respondents' demonstrated love and affection for the boy, notwithstanding, the legitimate father is still preferred over the grandparents. 22 The latter's wealth is not a deciding factor, particularly because there is no proof that at the present time, petitioner

is in no position to support the boy. The fact that he was unable to provide financial support for his minor son from birth up to over three years when he took the boy from his in-laws without permission, should not be sufficient reason to strip him of his permanent right to the child's custody. While petitioner's previous inattention is inexcusable and merits only the severest criticism, it cannot be construed as abandonment. His appeal of the unfavorable decision against him and his efforts to keep his only child in his custody may be regarded as serious efforts to rectify his past misdeeds. To award him custody would help enhance the bond between parent and son. It would also give the father a chance to prove his love for his son and for the son to experience the warmth and support which a father can give. His being a soldier is likewise no bar to allowing him custody over the boy. So many men in uniform who are assigned to different parts of the country in the service of the nation, are still the natural guardians of their children. It is not just to deprive our soldiers of authority, care and custody over their children merely because of the normal consequences of their duties and assignments, such as temporary separation from their families. Petitioner's employment of trickery in spiriting away his boy from his in-laws, though unjustifiable, is likewise not a ground to wrest custody from him. Private respondents' attachment to the young boy whom they have reared for the past three years is understandable. Still and all, the law considers the natural love of a parent to outweigh that of the grandparents, such that only when the parent present is shown to be unfit or unsuitable may the grandparents exercise substitute parental authority, a fact which has not been proven here. The strong bonds of love and affection possessed by private respondents as grandparents should not be seen as incompatible with petitioner' right to custody over the child as a father. Moreover, who is to say whether the petitioner's financial standing may improve in the future? WHEREFORE, the petition is GRANTED. The decision of the respondent Court of Appeals dated April 30, 1992 as well as its Resolution dated November 13, 1992 are hereby REVERSED and SET ASIDE. Custody over the minor Leouel Santos Jr. is awarded to his legitimate father, herein petitioner Leouel Santos, Sr.

SO ORDERED. Feliciano, Melo, Vitug and Francisco, JJ., concur. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 116773 January 16, 1997 TERESITA SAGALA-ESLAO, petitioner, vs. COURT OF APPEALS and MARIA PAZ CORDERO-OUYE, respondents. TORRES, JR., J.: Children begin by loving their parents. After a time they judge them. Rarely, if ever, do they forgive them. 1 Indeed, parenthood is a riddle of no mean proportions except for its mission. Thus, a mother's concern for her child's custody is undying such is a mother's love. The right of the mother to the custody of her daughter is the issue in the case at bar. In this petition for review, Teresita SagalaEslao seeks the reversal of the Court of Appeals decision 2 dated March 25, 1994, which affirmed the trial court's judgment granting the petition of Maria Paz CorderoOuye to recover the custody of her minor daughter from her mother-in-law, Teresita Sagala-Eslao. As found by the Court of Appeals, the facts of the case are as follows: From the evidence, it appears that on June 22, 1984, petitioner Maria Paz Cordero-Ouye and Reynaldo Eslao were married; 3 after their marriage, the couple stayed with respondent Teresita Eslao, mother of the husband, at 1825, Road 14, Fabie Estate, Paco, Manila; that out of their marriage, two children were begotten, namely, Leslie Eslao who was born on February 23, 1986 and Angelica Eslao who was born on April 20, 1987; 4 in the meantime, Leslie was entrusted to the care and custody of petitioner's mother in Sta. Ana, Pampanga, while Angelica stayed with her parents at respondent's house; on August 6, 1990, petitioner's

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husband Reynaldo Eslao died; 5 petitioner intended to bring Angelica with her to Pampanga but the respondent prevailed upon her to entrust the custody of Angelica to her, respondent reasoning out that her son just died and to assuage her grief therefor, she needed the company of the child to at least compensate for the loss of her late son. In the meantime, the petitioner returned to her mother's house in Pampanga where she stayed with Leslie. Subsequently, petitioner was introduced by her auntie to Dr. James Manabu-Ouye, a Japanese-American, who is an orthodontist practicing in the United States; their acquaintance blossomed into a meaningful relationship where on March 18, 1992, the petitioner and Dr. James Ouye decided to get married; less than ten months thereafter, or on January 15, 1993, the petitioner migrated to San Francisco, California, USA, to join her new husband. At present, the petitioner is a trainee at the Union Bank in San Francisco, while her husband is a progressive practitioner of his profession who owns three cars, a dental clinic and earns US$5,000 a month. On June 24, 1993, the petitioner returned to the Philippines to be reunited with her children and bring them to the United States; the petitioner then informed the respondent about her desire to take informed the respondent about her desire to take custody of Angelica and explained that her present husband, Dr. James Ouye, expressed his willingness to adopt Leslie and Angelica and to provide for their support and education; however, respondent resisted the idea by way of explaining that the child was entrusted to her when she was ten days old and accused the petitioner of having abandoned Angelica. Because of the adamant attitude of the respondent, the petitioner then sought the assistance of a lawyer, Atty. Mariano de Joya, Jr., who wrote a letter to the respondent demanding for the return of the custody of Angelica to her natural mother 6 and when the demand remain[ed] unheeded, the petitioner instituted the present action. 7

After the trial on the merits, the lower court rendered its decision, the dispositive portion of which reads: WHEREFORE, finding the petition to be meritorious, the Court grants the same and let the corresponding writ issue. As a corollary, respondent Teresita Sagala-Eslao or anyone acting under her behalf is hereby directed to cause the immediate transfer of the custody of the minor Angelica Cordero Eslao, to her natural mother, petitioner Maria Paz Cordero-Ouye. No pronouncement as to costs. SO ORDERED. On appeal, the respondent court affirmed in full the decision of the trial court. Hence, the instant petition by the minor's paternal grandmother, contending that the Court of Appeals erred: I IN RULING THAT PRIVATE RESPONDENT MARIA PAZ CORDERO-OUYE, DID NOT ABANDON MINOR, ANGELICA ESLAO, TO THE CARE AND CUSTODY OF THE PETITIONER TERESITA SAGALA-ESLAO. II IN RULING THAT THERE WAS NO COMPELLING REASON TO SEPARATE MINOR, ANGELICA ESLAO, FROM PRIVATE RESPONDENT MARIA PAZ CORDERO-OUYE, IN FAVOR OF PETITIONER TERESITA SAGALAESLAO. III IN NOT FINDING THAT PETITIONER TERESITA SAGALAESLAO, IS FIT TO BE GIVEN THE CUSTODY OF MINOR, ANGELICA ESLAO. The petition is without merit. Being interrelated, the issues shall be discussed jointly. Petitioner argues that she would be deserving to take care of Angelica; that she

had managed to raise 12 children of her own herself; that she has the financial means to carry out her plans for Angelica; that she maintains a store which earns a net income of about P500 a day, she gets P900 a month as pension for the death of her husband, she rents out rooms in her house which she owns, for which she earns a total of P6,000 a month, and that from her gross income of roughly P21,000, she spends about P10,000 for the maintenance of her house. Despite the foregoing, however, and petitioner's "genuine desire to remain with said child, that would qualify her to have custody of Angelica," the trial court's disquisition, in consonance with the provision that the child's welfare is always the paramount consideration in all questions concerning his care and custody 8 convinced this Court to decide in favor of private respondent, thus: On the other hand, the side of the petitioner must also be presented here. In this case, we see a picture of a real and natural mother who is . . . legitimatel y, anxiously, and desperatel y trying to get back her child in order to fill the void in her heart and existence. She wants to make up for what she has failed to do for her boy during the period when she was financially unable to help him and when she could not have him in her house because of the objection of the father. Now that

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she has her own home and is in a better financial condition, she wants her child back, and we repeat that she has not and has never given him up definitely or with any idea of permanen ce. 9 The petitioner herein is married to an Orthodontist who has lucrative practice of his profession in San Francisco, California, USA. The petitioner and her present husband have a home of their own and they have three cars. The petitioner's husband is willing to adopt the petitioner's children. If the children will be with their mother, the probability is that they will be afforded a bright future. Contrast this situation with the one prevailing in the respondent's [grandmother's] house. As admitted by the respondent, four of the rooms in her house are being rented to other persons with each room occupied by 4 and 5 persons. Added to these persons are the respondent's 2 sons, Samuel and Alfredo, and their respective families (ibid., p. 54) and one can just visualize the kind of atmosphere pervading thereat. And to aggravate the situation, the house has only 2 toilets and 3 faucets. Finally, considering that in all controversies involving the custody of minors, the foremost criterion is the physical and moral well being of the child taking into account the respective resources and social and moral situations of the contending parties (Union III vs. Mariano, 101 SCRA 183), the Court is left with no other recourse but to grant the writ prayed for. 10 Petitioner further contends that the respondent court erred in finding that there was no abandonment committed by the

private respondent; that while judicial declaration of abandonment of the child in a case filed for the purpose is not her obtaining as mandated in Art. 229 of the Family Code because petitioner failed to resort to such judicial action, it does not ipso facto follow that there was in fact no abandonment committed by the private respondent. Petitioner also argues that it has been amply demonstrated during the trial that private respondent had indeed abandoned Angelica to the care and custody of the petitioner; that during all the time that Angelica stayed with petitioner, there were only three instances or occasions wherein the private respondent saw Angelica; that private respondent never visited Angelica on important occasions, such as her birthday, and neither did the former give her cards or gifts, "not even a single candy;" 11 that while private respondent claims otherwise and that she visited Angelica "many times" and insists that she visited Angelica as often as four times a month and gave her remembrances such as candies and clothes, she would not even remember when the fourth birthday of Angelica was. We are not persuaded by such averments. In Santos, Sr. vs. Court of Appeals, 242 SCRA 407, 12 we stated, viz: . . . [Parental authority] is a mass of rights and obligations which the law grants to parents for the purpose of the children's physical preservation and development, as well as the cultivation of their intellect and the education of their heart and senses. 13 As regards parental authority, "there is no power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the minor." 14 Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. 15 The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children's home or an orphan institution.16 When a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is merely temporary custody and it

does not constitute a renunciation of parental authority. 17 Even if a definite renunciation is manifest, the law still disallows the same. 18 The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep them in their custody and company. 19 Thus, in the instant petition, when private respondent entrusted the custody of her minor child to the petitioner, what she gave to the latter was merely temporary custody and it did not constitute abandonment or renunciation of parental authority. For the right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children's home or an orphan institution which do not appear in the case at bar. Of considerable importance is the rule long accepted by the courts that "the right of parents to the custody of their minor children is one of the natural rights incident to parenthood, a right supported by law and sound public policy. The right is an inherent one, which is not created by the state or decisions of the courts, but derives from the nature of the parental relationship. 20 IN VIEW WHEREOF, the decision appealed from dated March 25, 1994 being in accordance with law and the evidence, the same is hereby AFFIRMED and the petition DISMISSED for lack of merit. SO ORDERED. Regalado, Romero, Puno and Mendoza, JJ., concur. FIRST DIVISION [G.R. No. 144763. September 3, 2002] REYMOND B. LAXAMANA, petitioner, vs. MA. LOURDES* D. LAXAMANA, respondent. DECISION YNARES-SANTIAGO, J.: This is another sad tale of an estranged couples tug-of-war over the custody of their minor children. Petitioner Reymond B. Laxamana and respondent Ma. Lourdes D. Laxamana met sometime in 1983. Petitioner, who came from a well-todo family, was a graduate of Bachelor of

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Laws, while respondent, a holder of a degree in banking and finance, worked in a bank. After a whirlwind courtship, petitioner, 31 years old and respondent, 33, got married on June 6, 1984.[1] Respondent quit her job and became a full-time housewife. Petitioner, on the other hand, operated buy and sell, fishpond, and restaurant businesses for a living. The union was blessed with three children twin brothers Joseph and Vincent, born on March 15, 1985, and Michael, born on June 19, 1986.[2] All went well until petitioner became a drug dependent. In October 1991, he was confined at the Estrellas Home Care Clinic in Quezon City. He underwent psychotherapy and psychopharmacological treatment and was discharged on November 16, 1991.[3] Upon petition of respondent, the Regional Trial Court of Quezon City, Branch 101, ordered petitioners confinement at the NARCOM-DRC for treatment and rehabilitation.[4] Again, on October 30, 1996, the trial court granted petitioners voluntary confinement for treatment and rehabilitation at the National Bureau of Investigation-TRC.[5] On April 25, 1997, the court issued an order declaring petitioner already drugfree and directing him to report to a certain Dr. Casimiro for out-patient counseling for 6 months to one (1) year.[6] Despite several confinements, respondent claimed petitioner was not fully rehabilitated. His drug dependence worsened and it became difficult for respondent and her children to live with him. Petitioner allegedly became violent and irritable. On some occasions, he even physically assaulted respondent. Thus, on June 17, 1999, respondent and her 3 children abandoned petitioner and transferred to the house of her relatives. On August 31, 1999, petitioner filed with the Regional Trial Court of Quezon City, Branch 107, the instant petition for habeas corpus praying for custody of his three children.[7] Respondent opposed the petition, citing the drug dependence of petitioner.[8] Meanwhile, on September 24, 1999, respondent filed a petition for annulment of marriage with Branch 102 of the Regional Trial Court of Quezon City.[9] On September 27, 1999, petitioner filed in the habeas corpus case, a motion seeking visitation rights over his children.[10] On December 7, 1999, after the parties reached an agreement, the court issued an order granting visitation rights to petitioner and directing the parties to undergo psychiatric and psychological examination by a psychiatrist of their common choice. The parties further agreed to submit the case for resolution after the

trial courts receipt of the results of their psychiatric examination. The full text of said order reads: The parties appeared with their respective lawyers. A conference was held in open Court and the parties agreed on the following: Effective this Saturday and every Saturday thereafter until further order the petitioner shall fetch the children every Saturday and Sunday at 9:00 oclock in the morning from the house of the sister of respondent, Mrs. Corazon Soriano and to be returned at 5:00 oclock in the afternoon of the same days. That the parties agreed to submit themselves to Dr. Teresito Ocampo for psychiatric/psychological examination. Dr. Ocampo is hereby advised to go over the records of this case to enable him to have a thorough background of the problem. He is hereby ordered to submit his findings directly to this Court without furnishing the parties copies of his report. And after the receipt of that report, thereafter, the case shall be deemed submitted for decision.[11] On January 6, 2000, Dr. Ocampo submitted the results of his psychiatric evaluation on the parties and their children. Pertinent portions thereof state: SINGLY and COLLECTIVELY, the following information was obtained in the interview of the 3 children: (1) THEY were affected psychologically by the drug-related behavior of their father: a. they have a difficult concentrating on their studies. time

b. he wont be hot-headed anymore and would not drive their van recklessly. c. he would not tell unverifiable stories anymore. d. he would not poke a gun on his own head and ask the children who they love better, mom or dad.

(5) At one point one of the sons, became very emotional while he was narrating his story and he cried. I had to stop the interview. (6) THEIR mother was fearful and terrified when their father quarreled with her. (7) THEY hope their visits to their father will not interfere with their school and academic schedules. x x x x xxx x x

(3) MARILOU is one of 4 siblings. She graduated from college with a degree in banking and finance. SHE was a carreer (sic) woman; worked for a bank for ten years; subsequently quit her job to devote more time to her family. (4) REYMOND is one of 5 siblings in a well-to-do family. His father was a physician. During his developmental years, he recalled how his mother complained incessantly about how bad the father was; only to find later that the truth was opposite to the complaints of his mother; that his father was nice, logical and understanding. He recalled how he unselfishly served his father --- he opened the door when he arrived home; he got his portfolio; he brought the days newspaper; he removed his shoes; he brought his glass of beer or his shot of whisky. In short, he served him like a servant. His father died of stroke in 1990. REYMOND graduated from college with a degree in LAW in 1984; he did not pass the bar. His work history is as follows: a. 1985 fishponds. to 1989 he operated

b. they are envious of their classmates whose families live in peace and harmony. c. once, MICHAEL had to quit school temporarily. (2) THEY witnessed their father when he was under the influence of shabu. (3) THEY think their father had been angry at their paternal grandmother and this anger was displaced to their mother. (4) THEY hope their father will completely and permanently recover from his drug habit; and their criteria of his full recovery include: a. he will attitude. regain his easy-going

b. 1976 to 1991 simultaneously, he operated restaurant.

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c. 1991 he engaged in the trading of vegetable, cooking oil, and mangos. d. HE handled the leasing of a family property to a fast food company. The findings on the examination of the MENTAL STATUS and MENTAL PROCESSES OF MARILOU showed a woman who showed the psychological effects of the trauma she had in the past. She is slightly edgy and fidgety with any external noise. SHE answered all my questions coherently. Her emotional state was stable throughout the interview. She is of average intelligence. She was oriented to person, place and date. Her memory for recent and remote events was intact. She could process sets of figures and sets of similarities and differences. Her content of thought was negative for delusions, hallucinations, paranoia, suicidal and homicidal ideation. She could process abstract ideas and general information. Her attention span was adequate. There was no evidence of impaired judgment. The Rorschach ink blot test gave responses such as man touching a woman, 2 people on a hi-five , 2 women chatting, beast, stuffed animal, etc. Her past reflected on her psyche. There is no creative process. There were no bizarre ideas. The ZUNG anxiety/depression test highlighted I get tired for no reason; I feel that I am useful and needed (re, son). There is moderate depression. However, she could still make competent decisions. The Social Adaptation Scale scored well in her capacity to adapt to her situation. There is no evidence of losing control. The findings on the examination of the MENTAL STATUS and MENTAL PROCESSES of REYMOND showed an individual who presented himself in the best situation he could possibly be. He is cool, calm and collected. He answered all my questions coherently. He is of average intelligence. He was oriented to person, place and date. His memory for recent and remote events was intace (sic). His content of thought was negative for delusions, hallucinations, paranoia, suicidal and homicidal ideation. His attention span was adequate. He could process abstract ideas, sets of figures, and general information. The Rorschach ink blot test gave responses such as distorted chest , butterfly with scattered color, cat ran over by a car, nothing 2 people, monster etc. There is

no central theme in his responses. There were no bizarre ideas. The Zung anxiety/depression test: My mind is as clear as it used to be (most of the time). There was no evidence of brain damage. There is no significant affective response that would affect his rationality. The Social Adaptive Scale scored well in his capacity to adapt to his situation. He reached out well to others. He is in very good control of his emotions. BASED ON MY FINDINGS I MADE THE FOLLOWING COMMENTS AND CONCLUSIONS: I. The CRITERIA for cure in drug addiction consist of: 1. 5-years and 10-years intervals of drug-free periods. change for the better of the maladaptive behaviors of the addict consisting of telling lies, manipulative behavior, melodramatic and hysterical actions. constructive and reproductive outlets for the mental and physical energies of the addict. behavior oriented towards spiritual values and other things.

and giving visitation rights to petitioner. The dispositive portion thereof states: WHEREFORE, in view of the foregoing, judgment is hereby rendered: 1. The children, Joseph, Michael and Vincent all surnamed Laxamana are hereby ordered to remain under the custody of the respondent. 2. The visitation arrangement as per Order of December 7, 1999 is hereby incorporated and forms part of this Decision. The parties are enjoined to comply with the terms stated therein. 3. The petitioner is hereby ordered to undergo urine drug screen for shabu for three times (3x) per month every ten (10) days, with the Dangerous Drugs Board. The said Board is hereby ordered to submit the results of all tests immediately as directed to this Court. 4. The petitioner is hereby referred to undergo regular counseling at the FreeClinic at the East Avenue Medical Center, Department of Health Out Patient Psychiatry Department until further order. For this purpose, it is suggested that he should see Dr. Teresito P. Ocampo to make arrangements for said counseling. Let copies of this Decision be furnished the Dangerous Drugs Board and the Free-Clinic, Out Patient Psychiatry Department, East Avenue Medical Center, Department of Health for their information and guidance. SO ORDERED.[13] Aggrieved, petitioner filed the instant petition for review on certiorari under Rule 45 of the Rules of Court, based on the following: I THE COURT A QUO HAS DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS WHEN IT RESOLVED THE ISSUE OF CUSTODY WITHOUT CONDUCTING A TRIAL TO DETERMINE FACTUAL ISSUES. II THE COURT A QUO HAS RESOLVED THE ISSUE OF CUSTODY IN A MANNER NOT IN ACCORD WITH LAW AND WITH THE APPLICABLE DECISIONS OF THIS HONORABLE SUPREME COURT WHEN IT RESOLVED THE ISSUE OF CUSTODY WITHOUT CONSIDERING THE PARAMOUNT

2.

3.

4.

II BASED on such scientific and observable criteria, I do not yet consider REYMOND LAXAMANA completely cured even though his drug urine test at Medical City for shabu was negative. (Emphasis supplied) III I DO NOT DETECT any evidence that the paternal visits of the sons would be harmful or they would be in any danger. The academic schedules of the sons has be taken into account in determining the length and frequency of their visits. x x x x x x

x x x.[12]

On January 14, 2000, the trial court rendered the assailed decision awarding the custody of the three children to respondent

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INTEREST AND WELFARE OF HEREIN PARTIES THREE (3) MINOR CHILDREN. III THE ASSAILED DECISION IS NULL AND VOID AS IT DOES NOT COMPLY WITH SECTION 14 ARTICLE VIII OF THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES.[14] The core issue for resolution in the instant petition is whether or not the trial court considered the paramount interest and welfare of the children in awarding their custody to respondent. In controversies involving the care, custody and control of their minor children, the contending parents stand on equal footing before the court who shall make the selection according to the best interest of the child. The child if over seven years of age may be permitted to choose which parent he/she prefers to live with, but the court is not bound by such choice if the parent so chosen is unfit. In all cases, the sole and foremost consideration is the physical, educational, social and moral welfare of the child concerned, taking into account the respective resources as well as social and moral situations of the opposing parents.[15] In Medina v. Makabali,[16] we stressed that this is as it should be, for in the continual evolution of legal institutions, the patria potestas has been transformed from the jus vitae ac necis (right of life and death) of the Roman law, under which the offspring was virtually a chattel of his parents, into a radically different institution, due to the influence of Christian faith and doctrines. The obligational aspect is now supreme. There is no power, but a task; no complex rights of parents but a sum of duties; no sovereignty, but a sacred trust for the welfare of the minor. Mindful of the nature of the case at bar, the court a quo should have conducted a trial notwithstanding the agreement of the parties to submit the case for resolution on the basis, inter alia, of the psychiatric report of Dr. Teresito. Thus, petitioner is not estopped from questioning the absence of a trial considering that said psychiatric report, which was the courts primary basis in awarding custody to respondent, is insufficient to justify the decision. The fundamental policy of the State to promote and protect the welfare of children shall not be disregarded by mere technicality in resolving disputes which involve the family and the youth.[17] While petitioner may have a history of drug dependence, the records are inadequate as to his moral, financial and social well-being. The results of the psychiatric evaluation showing that he is not yet completely cured may render him unfit to take custody of the children, but

there is no evidence to show that respondent is unfit to provide the children with adequate support, education, as well as moral and intellectual training and development. Moreover, the children in this case were 14 and 15 years old at the time of the promulgation of the decision, yet the court did not ascertain their choice as to which parent they want to live with. In its September 8, 1999 order, the trial court merely stated that: The children were asked as to whether they would like to be with petitioner but there are indications that they entertain fears in their hearts and want to be sure that their father is no longer a drug dependent.[18] There is no showing that the court ascertained the categorical choice of the children. These inadequacies could have been remedied by an exhaustive trial probing into the accuracy of Dr. Ocampos report and the capacity of both parties to raise their children. The trial court was remiss in the fulfillment of its duties when it approved the agreement of the parties to submit the case for decision on the basis of sketchy findings of facts. In Lacson v. Lacson,[19] the case was remanded to the trial court with respect to the issue of custody. In the said case, the court a quo resolved the question of the childrens custody based on the amicable settlement of the spouses. Stressing the need for presentation of evidence and a thorough proceedings, we explained It is clear that every child *has+ rights which are not and should not be dependent solely on the wishes, much less the whims and caprices, of his parents. His welfare should not be subject to the parents' say-so or mutual agreement alone. Where, as in this case, the parents are already separated in fact, the courts must step in to determine in whose custody the child can better be assured the rights granted to him by law. The need, therefore, to present evidence regarding this matter, becomes imperative. A careful scrutiny of the records reveals that no such evidence was introduced in the CFI. This latter court relied merely on the mutual agreement of the spouses-parents. To be sure, this was not sufficient basis to determine the fitness of each parent to be the custodian of the children. Besides, at least one of the children Enrique, the eldest is now eleven years of age and should be given the choice of the parent he wishes to live with. x x x. In the instant case, the proceedings before the trial court leave much to be desired. While a remand of this case would mean further delay, the childrens paramount interest demand that further proceedings be conducted to determine the

fitness of both petitioner and respondent to assume custody of their minor children. WHEREFORE, in view of all the foregoing, the instant case is REMANDED to the Regional Trial Court of Quezon City, Branch 107, for the purpose of receiving evidence to determine the fitness of petitioner and respondent to take custody of their children. Pending the final disposition of this case, custody shall remain with respondent but subject to petitioners visitation rights in accordance with the December 7, 1999 order of the trial court. SO ORDERED. Davide, Jr., C.J., Vitug, and Carpio, JJ., concur. (Chairman),

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 154994 June 28, 2005

JOYCELYN PABLO-GUALBERTO, petitioner, vs. CRISANTO RAFAELITO GUALBERTO V, respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 156254 June 28, 2005

CRISANTO RAFAELITO G. GUALBERTO V, petitioner, vs. COURT OF APPEALS; Hon. HELEN B. RICAFORT, Presiding Judge, Regional Trial Court Paraaque City, Branch 260; and JOYCELYN D. PABLOGUALBERTO, respondents. DECISION PANGANIBAN, J.: When love is lost between spouses and the marriage inevitably results in separation, the bitterest tussle is often over the custody of their children. The Court is now tasked to settle the opposing claims of the parents for custodypendente lite of their child who is less than seven years of age. There being no sufficient proof of any compelling reason to separate the minor from his mother, custody should remain with her. The Case

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Before us are two consolidated petitions. The first is a Petition for Review1 filed by Joycelyn Pablo-Gualberto under Rule 45 of the Rules of Court, assailing the August 30, 2002 Decision2 of the Court of Appeals (CA) in CA-GR SP No. 70878. The assailed Decision disposed as follows: "WHEREFORE, premises considered, the Petition for Certiorari is hereby GRANTED. The assailed Order of May 17, 2002 is hereby SET ASIDE and ANNULLED. The custody of the child is hereby ordered returned to [Crisanto Rafaelito G. Gualberto V]. "The [respondent] court/Judge is hereby directed to consider, hear and resolve *petitioners+ motion to lift the award of custody pendente lite of the child to [respondent]."3 The second is a Petition for Certiorari4 filed by Crisanto Rafaelito Gualberto V under Rule 65 of the Rules of Court, charging the appellate court with grave abuse of discretion for denying his Motion for Partial Reconsideration of the August 30, 2002 Decision. The denial was contained in the CAs November 27, 2002 Resolution, which we quote: "We could not find any cogent reason why the [last part of the dispositive portion of our Decision of August 30, 2002] should be deleted, hence, subject motion is hereby DENIED."5 The Facts The CA narrated the antecedents as follows: "x x x [O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto V] filed before [the Regional Trial Court of Paraaque City] a petition for declaration of nullity of his marriage to x x x Joycelyn D. Pablo Gualberto, with an ancillary prayer for custody pendente lite of their almost 4year-old son, minor Rafaello (the child, for brevity), whom [Joycelyn] allegedly took away with her from the conjugal home and his school (Infant Toddlers Discovery Center in Paraaque City) when [she] decided to abandon [Crisanto] sometime in early February 2002[.] x x x [O]n April 2, 2002, [RTC Judge Helen B. Ricafort] heard the ancillary prayer of [Crisanto] for custody pendente lite. x x x [B]ecause [Joycelyn] allegedly failed to appear despite notice, [Crisanto], a certain Col. Renato Santos, and Ms. Cherry Batistel, testified before the x x x Judge; x x x documentary evidence [was] also presented[.] x x x [O]n April 3, 2002, x x x [the] Judge awarded

custody pendente lite of the child [Crisanto.] [T]he Order partly read x x x:

to

x x x Crisanto Rafaelito Gualberto V testified. He stated that [Joycelyn] took their minor child with her to Caminawit, San Jose, Occidental Mindoro. At that time, the minor was enrolled at B.F. Homes, Paraaque City. Despite effort[s] exerted by him, he has failed to see his child. [Joycelyn] and the child are at present staying with the formers step-father at the latters [residence] at Caminawit, San Jose, Occidental Mindoro. Renato Santos, President of United Security Logistic testified that he was commissioned by [Crisanto] to conduct surveillance on [Joycelyn] and came up with the conclusion that [she] is having lesbian relations with one Noreen Gay Cuidadano in Cebu City. The findings of Renato Santos *were+ corroborated by Cherry Batistel, a house helper of the spouses who stated that [the mother] does not care for the child as she very often goes out of the house and on one occasion, she saw [Joycelyn] slapping the child. Art. 211 of the Family Code provides as follows: The father and the mother shall jointly exercise parental authority over the persons of their children. In the case of disagreement, the fathers decision shall prevail, unless there is a judicial order to the contrary. The authority of the father and mother over their children is exercised jointly. This recognition, however, does not place her in exactly the same place as the father; her authority is subordinated to that of the father. In all controversies regarding the custody of minors, the sole and foremost consideration is the physical, educational, social and moral welfare of the child, taking into account the respective resources and social and moral situations of the contending parties. The Court believes that *Joycelyn+ had no reason to take the child with her. Moreover, per Sheriff returns, she is not with him at Caminawit, San Jose, Occidental Mindoro. WHEREFORE, pendente lite, the Court hereby awards custody of the minor, Crisanto Rafaello P. Gualberto X to his father, Crisanto Rafaelito G. Gualberto V.

"x x x [O]n April 16, 2002, the hearing of *Joycelyns+ motion to lift the award of custody pendente lite of the child to [Crisanto] was set but the former did not allegedly present any evidence to support her motion. However, on May 17, 2002, [the] Judge allegedly issued the assailed Order reversing her Order of April 3, 2002 and this time awarding custody of the child to [Joycelyn]. [T]he entire text of the Order [is] herein reproduced, to wit: Submitted is *Crisantos+ Motion to Resolve Prayer for Custody Pendente Lite and *Joycelyns+ Motion to Dismiss and the respective Oppositions thereto. *Joycelyn+, in her Motion to Dismiss, makes issue of the fact that the person referred to in the caption of the Petition is one JOCELYN Pablo Gualberto and not Joycelyn Pablo Gualberto. [Joycelyn] knows she is the person referred to in the Complaint. As a matter of fact, the body of the Complaint states her name correct[ly]. The law is intended to facilitate and promote the administration of justice, not to hinder or delay it. Litigation should be practicable and convenient. The error in the name of Joycelyn does not involve public policy and has not prejudiced [her]. This case was filed on March 12, 2002. Several attempts were made to serve summons on [Joycelyn] as shown by the Sheriffs returns. It appears that on the 4th attempt on March 21, 2002, both Ma. Daisy and x x x Ronnie Nolasco, *Joycelyns mother and stepfather, respectively,] read the contents of the documents presented after which they returned the same.lawphil.net The Court believes that on that day, summons was duly served and this Court acquired jurisdiction over [Joycelyn]. The filing of *Joycelyns annulment+ case on March 26, 2002 was an after thought, perforce the Motion to [D]ismiss should be denied. The child subject of this Petition, Crisanto Rafaello P. Gualberto is barely four years old. Under Article 213 of the Family Code, he shall not be separated from his mother unless the Court finds compelling reasons to order otherwise. The Court finds the reason stated by [Crisanto] not [to] be compelling reasons.1avvphil.zw+ The father should however be entitled to spend time with the minor. These do not appear compelling reasons to deprive him of the company of his child. When *Joycelyn+ appeared before this Court, she stated that she has no objection

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to the father visiting the child even everyday provided it is in Mindoro. The Court hereby grants the mother, [Joycelyn], the custody of Crisanto Rafaello P. Gualberto, with [the] right of [Crisanto] to have the child with him every other weekend. WHEREFORE: 1. The [M]otion to Dismiss is hereby DENIED; 2. Custody pendente lite is hereby given to the mother Joycelyn Pablo Gualberto with the right of the father, x x x [Crisanto], to have him every other week-end. 3. Parties are admonished not to use any other agencies of the government like the CIDG to interfere in this case and to harass the parties."6 In a Petition for Certiorari7 before the CA, Crisanto charged the Regional Trial Court (Branch 260) of Paraaque City with grave abuse of discretion for issuing its aforequoted May 17, 2002 Order. He alleged that this Order superseded, without any factual or legal basis, the still valid and subsisting April 3, 2002 Order awarding him custody pendente lite of his minor son; and that it violated Section 14 of Article VII of the 1987 Constitution. Ruling of the Court of Appeals Partly in Crisantos favor, the CA ruled that grave abuse of discretion had been committed by the trial court in reversing the latter courts previous Order dated April 3, 2002, by issuing the assailed May 17, 2002 Order. The appellate court explained that the only incident to resolve was Joycelyns Motion to Dismiss, not the issuance of the earlier Order. According to the CA, the prior Order awarding provisional custody to the father should prevail, not only because it was issued after a hearing, but also because the trial court did not resolve the correct incident in the later Order. Nonetheless, the CA stressed that the trial court judge was not precluded from considering and resolving Joycelyns Motion to lift the award of custody pendente lite to Crisanto, as that Motion had yet to be properly considered and ruled upon. However, it directed that the child be turned over to him until the issue was resolved.

Hence, these Petitions.8 Issues In GR No. 154994, Petitioner Joycelyn submits these issues for our consideration: "1. Whether or not the Respondent Court of Appeals, when it awarded the custody of the child to the father, violated Art. 213 of the Family Code, which mandates that no child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. "2. Is it Article 213 or Article 211 which applies in this case involving four-year old Rafaello?"9 On the other hand, Crisanto raises the following issues: "A. Did Respondent Court commit grave abuse of discretion amounting to or in excess of jurisdiction when, in its August 30, 2002 Decision, it ordered respondent court/Judge to consider, hear and resolve the motion to lift award of custody pendente lite of the child to petitioner and x x x denied the motion for reconsideration thereof in its November 27, 2002 Resolution, considering that: (1) there is no such motion ever, then or now pending, with the court a quo; (2) the November 27, 2002 Resolution is unconstitutional; and (3) the April 3, 2002 Order of respondent Judge, the validity of which has been upheld in the August 30, 2002 Decision of the respondent Court, has become final and executory; and "B. Ought not the ancillary remedies [o]f habeas corpus, because the whereabouts, physical and mental condition of the illegally detained Minor Rafaello is now unknown to petitioner and preliminary mandatory injunction with urgent prayer for immediate issuance of preliminary [injunction], petitioner having a clear and settled right to custody of Minor Rafaello which has been violated and still is being continuously violated by

[petitioner Joycelyn], be granted by this Honorable Court?"10 Being interrelated, the procedural challenges and the substantive issues in the two Petitions will be addressed jointly. The Courts Ruling There is merit in the Petition in GR No. 154994, but not in GR No. 156254. Preliminary Issue: The Alleged Prematurity of the Petition in GR No. 154994 Before going into the merits of the present controversy, the Court shall first dispose of a threshold issue. In GR No. 154994, therein Respondent Crisanto contends that the Petition for Review was filed beyond the deadline (October 24, 2002) allowed by the Rules of Court and by this Court. He claims that Registry Bill No. 88 shows that the Petition was sent by speed mail, only on November 4, 2002. Furthermore, he assails the Petition for its prematurity, since his Motion for Partial Reconsideration of the August 30, 2002 CA Decision was still pending before the appellate court. Thus, he argues that the Supreme Court has no jurisdiction over Joycelyns Petition. Timeliness of the Petition The manner of filing and service Joycelyns Petition by mail is governed by Sections 3 and 7 of Rule 13 of the Rules of Court, which we quote: "SEC. 3. Manner of filing. The filing of pleadings, appearances, motions, notices, orders, judgments and all other papers shall be made by presenting the original copies thereof, plainly indicated as such personally to the clerk of court or by sending them by registered mail. xxx In the second case, the date of mailing of motions, pleadings and other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment, or deposit in court. The envelope shall be attached to the records of the case. "x x x x x x x x x "SEC. 7. Service by mail. Service by registered mail shall be made by depositing the copy in the office, in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully prepaid, and with instructions to the

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postmaster to return the mail to the sender after ten (10) days if undelivered. If no registry service is available in the locality of either the sender of the addressee, service may be done by ordinary mail. (Italics supplied) The records disclose that Joycelyn received the CAs August 30, 2002 Decision on September 9, 2002. On September 17, she filed before this Court a Motion for a 30-day extension of time to file a petition for review on certiorari. This Motion was granted,11 and the deadline was thus extended until October 24, 2002. A further perusal of the records reveals that copies of the Petition were sent to this Court and to the parties by registered mail12 at the Bian, Laguna Post Office on October 24, 2002. This is the date clearly stamped on the face of the envelope13 and attested to in the Affidavit of Service14 accompanying the Petition. Petitioner Joycelyn explained that the filing and the service had been made by registered mail due to the "volume of delivery assignments and the lack of a regular messenger."15 The Petition is, therefore, considered to have been filed on October 24, 2002, its mailing date as shown by the post office stamp on the envelope. The last sentence of Section 3 of Rule 13 of the Rules provides that the date of filing may be shown either by the post office stamp on the envelope or by the registry receipt. Proof of its filing, on the other hand, is shown by the existence of the petition in the record, pursuant to Section 12 of Rule 13.16 The postmaster satisfactorily clarifies that Registry Bill No. 88, which shows the date November 2, 2002, merely discloses when the mail matters received by the Bian Post Office on October 24, 2002, were dispatched or sent to the Central Mail Exchange for distribution to their final destinations.17 The Registry Bill does not reflect the actual mailing date. Instead, it is the postal Registration Book18 that shows the list of mail matters that have been registered for mailing on a particular day, along with the names of the senders and the addressees. That book shows that Registry Receipt Nos. 2832-A and 2832-B, pertaining to the mailed matters for the Supreme Court, were issued on October 24, 2002. Prematurity of the Petition As to the alleged prematurity of the Petition of Joycelyn, Crisanto points out that his Urgent Motion for Partial

Reconsideration19 was still awaiting resolution by the CA when she filed her Petition before this Court on October 24, 2002. The CA ruled on the Motion only on November 27, 2002. The records show, however, that the Motion of Crisanto was mailed only on September 12, 2002. Thus, on September 17, 2002, when Joycelyn filed her Motion for Extension of Time to file her Petition for Review, she might have still been unaware that he had moved for a partial reconsideration of the August 20, 2002 CA Decision. Nevertheless, upon being notified of the filing of his Motion, she should have manifested that fact to this Court. With the CAs final denial of Crisantos Motion for Reconsideration, Joycelyns lapse may be excused in the interest of resolving the substantive issues raised by the parties. First Issue: Grave Abuse of Discretion In GR No. 156254, Crisanto submits that the CA gravely abused its discretion when it ordered the trial court judge to "consider, hear and resolve the motion to lift the award of custody pendente lite" without any proper motion by Joycelyn and after the April 3, 2002 Order of the trial court had become final and executory. The CA is also charged with grave abuse of discretion for denying his Motion for Partial Reconsideration without stating the reasons for the denial, allegedly in contravention of Section 1 of Rule 36 of the Rules of Court. The Order to Hear the Motion to Lift the Award of Custody Pendente Lite Proper To begin with, grave abuse of discretion is committed when an act is 1) done contrary to the Constitution, the law or jurisprudence;20 or 2) executed "whimsically or arbitrarily" in a manner "so patent and so gross as to amount to an evasion of a positive duty, or to a virtual refusal to perform the duty enjoined."21 What constitutes grave abuse of discretion is such capricious and arbitrary exercise of judgment as that which is equivalent, in the eyes of the law, to lack of jurisdiction.22 On the basis of these criteria, we hold that the CA did not commit grave abuse of discretion. First, there can be no question that a court of competent jurisdiction is vested with the authority to resolve even unassigned issues. It can do so when such a step is

indispensable or necessary to a just resolution of issues raised in a particular pleading or when the unassigned issues are inextricably linked or germane to those that have been pleaded.23 This truism applies with more force when the relief granted has been specifically prayed for, as in this case. Explicit in the Motion to Dismiss24 filed by Joycelyn before the RTC is her ancillary prayer for the court to lift and set aside its April 3, 2002 Order awarding to Crisanto custody pendente lite of their minor son. Indeed, the necessary consequence of granting her Motion to Dismiss would have been the setting aside of the Order awarding Crisanto provisional custody of the child. Besides, even if the Motion to Dismiss was denied -- as indeed it was -- the trial court, in its discretion and if warranted, could still have granted the ancillary prayer as an alternative relief. Parenthetically, Joycelyns Motion need not have been verified because of the provisional nature of the April 3, 2002 Order. Under Rule 3825 of the Rules of Court, verification is required only when relief is sought from a final and executory Order. Accordingly, the court may set aside its own orders even without a proper motion, whenever such action is warranted by the Rules and to prevent a miscarriage of justice.26 Denial of the Motion for Reconsideration Proper Second, the requirement in Section 1 of Rule 36 (for judges to state clearly and distinctly the reasons for their dispositions) refers only to decisions and final orders on the merits, not to those resolving incidental matters.27The provision reads: "SECTION 1. Rendition of judgments and final orders. A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of court." (Italics supplied) Here, the declaration of the nullity of marriage is the subject of the main case, in which the issue of custodypendente lite is an incident. That custody and support of common children may be ruled upon by the court while the action is pending is provided in Article 49 of the Family Code, which we quote : "Art. 49. During the pendency of the action28 and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the

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support of the spouses and the custody and support of their common children. x x x." Clearly then, the requirement cited by Crisanto is inapplicable. In any event, in its questioned Resolution, the CA clearly stated that it "could not find any cogent reason" to reconsider and set aside the assailed portion of its August 30, 2002 Decision. The April 3, 2002 Order Not Final and Executory Third, the award of temporary custody, as the term implies, is provisional and subject to change as circumstances may warrant. In this connection, there is no need for a lengthy discussion of the alleged finality of the April 3, 2002 RTC Order granting Crisanto temporary custody of his son. For that matter, even the award of child custody after a judgment on a marriage annulment is not permanent; it may be reexamined and adjusted if and when the parent who was given custody becomes unfit.29 Second Issue: Custody of a Minor Child When love is lost between spouses and the marriage inevitably results in separation, the bitterest tussle is often over the custody of their children. The Court is now tasked to settle the opposing claims of the parents for custodypendente lite of their child who is less than seven years old.30 On the one hand, the mother insists that, based on Article 213 of the Family Code, her minor child cannot be separated from her. On the other hand, the father argues that she is "unfit" to take care of their son; hence, for "compelling reasons," he must be awarded custody of the child. Article 213 of the Family Code31 provides: "ART. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the court. The court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise." This Court has held that when the parents are separated, legally or otherwise, the foregoing provision governs the custody of their child.32 Article 213 takes its bearing

from Article 363 of the Civil Code, which reads: "Art. 363. In all questions on the care, custody, education and property of children, the latters welfare shall be paramount. No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure."(Italics supplied) The general rule that children under seven years of age shall not be separated from their mother finds its raison detre in the basic need of minor children for their mothers loving care.33 In explaining the rationale for Article 363 of the Civil Code, the Code Commission stressed thus: "The general rule is recommended in order to avoid a tragedy where a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age. The exception allowed by the rule has to be for compelling reasons for the good of the child: those cases must indeed be rare, if the mothers heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty of imprisonment and the (relative) divorce decree will ordinarily be sufficient punishment for her. Moreover, her moral dereliction will not have any effect upon the baby who is as yet unable to understand the situation." (Report of the Code Commission, p. 12) A similar provision is embodied in Article 8 of the Child and Youth Welfare Code (Presidential Decree No. 603).34Article 17 of the same Code is even more explicit in providing for the childs custody under various circumstances, specifically in case the parents are separated. It clearly mandates that "no child under five years of age shall be separated from his mother, unless the court finds compelling reasons to do so." The provision is reproduced in its entirety as follows: "Art. 17. Joint Parental Authority. The father and the mother shall exercise jointly just and reasonable parental authority and responsibility over their legitimate or adopted children. In case of disagreement, the fathers decision shall prevail unless there is a judicial order to the contrary. "In case of the absence or death of either parent, the present or surviving parent shall continue to exercise parental authority over such children, unless in case of the surviving parents remarriage, the court for justifiable reasons, appoints another person as guardian.

"In case of separation of his parents, no child under five years of age shall be separated from his mother, unless the court finds compelling reasons to do so." (Italics supplied) The above mandates reverberate in Articles 211, 212 and 213 of the Family Code. It is unmistakable from the language of these provisions that Article 21135 was derived from the first sentence of the aforequoted Article 17; Article 212,36 from the second sentence; and Article 213,37 save for a few additions, from the third sentence. It should be noted that the Family Code has reverted to the Civil Code provision mandating that a child below sevenyears should not be separated from the mother.38 Mandatory Character of Article 213 of the Family Code In Lacson v. San Jose-Lacson,39 the Court held that the use of "shall" in Article 363 of the Civil Code and the observations made by the Code Commission underscore the mandatory character of the word.40 Holding in that case that it was a mistake to deprive the mother of custody of her two children, both then below the age of seven, the Court stressed: "[Article 363] prohibits in no uncertain terms the separation of a mother and her child below seven years, unless such a separation is grounded upon compelling reasons as determined by a court."41 In like manner, the word "shall" in Article 213 of the Family Code and Section 642 of Rule 99 of the Rules of Court has been held to connote a mandatory character.43 Article 213 and Rule 99 similarly contemplate a situation in which the parents of the minor are married to each other, but are separated by virtue of either a decree of legal separation or a de facto separation.44 In the present case, the parents are living separately as a matter of fact. The Best Interest of the Child a Primary Consideration The Convention on the Rights of the Child provides that "[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."45 The principle of "best interest of the child" pervades Philippine cases involving adoption, guardianship, support, personal status, minors in conflict with the law, and child custody. In these cases, it has long

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been recognized that in choosing the parent to whom custody is given, the welfare of the minors should always be the paramount consideration.46 Courts are mandated to take into account all relevant circumstances that would have a bearing on the childrens well-being and development. Aside from the material resources and the moral and social situations of each parent, other factors may also be considered to ascertain which one has the capability to attend to the physical, educational, social and moral welfare of the children.47 Among these factors are the previous care and devotion shown by each of the parents; their religious background, moral uprightness, home environment and time availability; as well as the childrens emotional and educational needs Tender-Age Presumption As pointed out earlier, there is express statutory recognition that, as a general rule, a mother is to be preferred in awarding custody of children under the age of seven. The caveat in Article 213 of the Family Code cannot be ignored, except when the court finds cause to order otherwise.48 The so-called "tender-age presumption" under Article 213 of the Family Code may be overcome only bycompelling evidence of the mothers unfitness. The mother has been declared unsuitable to have custody of her children in one or more of the following instances: neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity or affliction with a communicable disease.49 Here, Crisanto cites immorality due to alleged lesbian relations as the compelling reason to deprive Joycelyn of custody. It has indeed been held that under certain circumstances, the mothers immoral conduct may constitute a compelling reason to deprive her of custody.50 But sexual preference or moral laxity alone does not prove parental neglect or incompetence. Not even the fact that a mother is a prostitute or has been unfaithful to her husband would render her unfit to have custody of her minor child.51 To deprive the wife of custody, the husband must clearly establish that her moral lapses have had an adverse effect on the welfare of the child or have distracted the offending spouse from exercising proper parental care.52 To this effect did the Court rule in Unson III v. Navarro,53 wherein the mother was openly living with her brother-in-law, the

childs uncle. Under that circumstance, the Court deemed it in the nine-year-old childs best interest to free her "from the obviously unwholesome, not to say immoral influence, that the situation in which the mother ha[d] placed herself might create in *the childs+ moral and social outlook."54 In Espiritu v. CA,55 the Court took into account psychological and case study reports on the child, whose feelings of insecurity and anxiety had been traced to strong conflicts with the mother. To the psychologist the child revealed, among other things, that the latter was disturbed upon seeing "her mother hugging and kissing a bad man who lived in their house and worked for her father." The Court held that the "illicit or immoral activities of the mother had already caused the child emotional disturbances, personality conflicts, and exposure to conflicting moral values x x x." Based on the above jurisprudence, it is therefore not enough for Crisanto to show merely that Joycelyn was a lesbian. He must also demonstrate that she carried on her purported relationship with a person of the same sex in the presence of their son or under circumstances not conducive to the childs proper moral development. Such a fact has not been shown here. There is no evidence that the son was exposed to the mothers alleged sexual proclivities or that his proper moral and psychological development suffered as a result. Moreover, it is worthy to note that the trial court judge, Helen Bautista-Ricafort, ruled in her May 17, 2002 Order that she had found the "reason stated by [Crisanto] not to be compelling"56 as to suffice as a ground for separating the child from his mother. The judge made this conclusion after personally observing the two of them, both in the courtroom and in her chambers on April 16, 2002, and after a chance to talk to the boy and to observe him firsthand. This assessment, based on her unique opportunity to witness the childs behavior in the presence of each parent, should carry more weight than a mere reliance on the records. All told, no compelling reason has been adduced to wrench the child from the mothers custody. No Grant of Habeas Corpus and Preliminary Injunction As we have ruled that Joycelyn has the right to keep her minor son in her custody, the writ of habeas corpus and the preliminary mandatory injunction prayed for by Crisanto have no leg to stand on. A writ of habeas corpus may be issued only when the "rightful custody of any person is withheld

from the person entitled thereto,"57 a situation that does not apply here. On the other hand, the ancillary remedy of preliminary mandatory injunction cannot be granted, because Crisantos right to custody has not been proven to be "clear and unmistakable."58 Unlike an ordinary preliminary injunction, the writ of preliminary mandatory injunction is more cautiously regarded, since the latter requires the performance of a particular act that tends to go beyond the maintenance of the status quo.59 Besides, such an injunction would serve no purpose, now that the case has been decided on its merits.60 WHEREFORE, the Petition in GR No. 154994 is GRANTED. The assailed Decision of the Court of Appeals is hereby REVERSED and the May 17, 2002 Regional Trial Court Order REINSTATED. The Petition in GR No. 156254 is DISMISSED. Costs against Petitioner Crisanto Rafaelito Gualberto V. SO ORDERED. Sandoval-Gutierrez, Corona, Morales, and Garcia, JJ., concur. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 162734 August 29, 2006 MARIE ANTONETTE ABIGAIL C. SALIENTES, ORLANDO B. SALIENTES, and ROSARIO C. SALIENTES,Petitioners, vs. LORAN S.D. ABANILLA, HONORABLE JUDGE PEDRO SABUNDAYO, JR., REGIONAL TRIAL COURT, BRANCH 203, MUNTINLUPA CITY, Respondents DECISION QUISUMBING, J.: The instant petition assails the Decision 1dated November 10, 2003 of the Court of Appeals in CA-G.R. SP No. 75680, which dismissed the petition for certiorari against the orders of the Regional Trial Court in Special Proceedings No. 03-004. Likewise assailed is the Court of Appeals Resolution 2dated March 19, 2004 denying reconsideration. The facts of the case are as follows: Carpio-

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Private respondent Loran S.D. Abanilla and petitioner Marie Antonette Abigail C. Salientes are the parents of the minor Lorenzo Emmanuel S. Abanilla. They lived with Marie Antonettes parents, petitioners Orlando B. Salientes and Rosario C. Salientes. Due to in-laws problems, private respondent suggested to his wife that they transfer to their own house, but Marie Antonette refused. So, he alone left the house of the Salientes. Thereafter, he was prevented from seeing his son. Later, Loran S.D. Abanilla in his personal capacity and as the representative of his son, filed a Petition for Habeas Corpus and Custody, 3 docketed as Special Proceedings No. 03-004 before the Regional Trial Court of Muntinlupa City. On January 23, 2003, the trial court issued the following order: Upon verified Petition for a Writ of Habeas Corpus by Petitioners, the Respondents Marie Antonette Abigail C. Salientes, Orlando B. Salientes and Rosario C. Salientes are hereby directed to produce and bring before this Court the body of minor Lorenzo Emmanuel Salientes Abanilla on January 31, 2003 at 1:00 oclock in the afternoon and to show cause why the said child should not be discharged from restraint. Let this Writ be served by the Sheriff or any authorized representative of this Court, who is directed to immediately make a return. SO ORDERED. 4 Petitioners moved for which the court denied. reconsideration

Hence, petitioners interposed this appeal by certiorari anchored on the following grounds: 1. The Court of Appeals erred in not pronouncing the respondent judge gravely abused his discretion, amounting to lack or in excess of jurisdiction in issuing an order for the petitioner-mother to first show cause why her own three-year old child in her custody should not be discharged from a so-called "restraint" despite no evidence at all of restraint and no evidence of compelling reasons of maternal unfitness to deprive the petitioner-mother of her minor son of tender years. The assailed orders, resolutions and decisions of the lower court and the Court of Appeals are clearly void; 2. The Court of Appeals erred in not pronouncing that the respondent judge gravely abused his discretion in issuing a writ of habeas corpus which clearly is not warranted considering that there is no unlawful restraint by the mother and considering further that the law presumes the fitness of the mother, thereby negating any notion of such mother illegally restraining or confining her very own son of tender years. The petition is not even sufficient in substance to warrant the writ. The assailed orders are clearly void. 3. Contrary to the Court of Appeals decision, the "Sombong vs. CA" case supports rather than negates the position of the petitioners. 4. Contrary to the Court of Appeals decision, summary proceeding does violence to the tender-years-rule 5. The Court of Appeals failed to consider that the private respondent failed to present prima facie proof of any compelling reason of the unfitness of the petitionermother; 6. The Court of Appeals failed to see that the New Rules on Custody SUFFICES AS REMEDY. 6 Plainly put, the issue is: Did the Court of Appeals err when it dismissed the petition for certiorari against the trial courts orders dated January 23, 2003 and February 24, 2003? Petitioners contend that the order is contrary to Article 213 7 of the Family Code, which provides that no child under seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise. They maintain that herein respondent Loran had the burden of showing any compelling reason

but failed to present facie proof thereof.

even

a prima

Petitioners posit that even assuming that there were compelling reasons, the proper remedy for private respondent was simply an action for custody, but not habeas corpus. Petitioners assert that habeas corpus is unavailable against the mother who, under the law, has the right of custody of the minor. They insist there was no illegal or involuntary restraint of the minor by his own mother. There was no need for the mother to show cause and explain the custody of her very own child. Private respondent counters that petitioners argument based on Article 213 of the Family Code applies only to the second part of his petition regarding the custody of his son. It does not address the first part, which pertains to his right as the father to see his son. He asserts that the writ of habeas corpus is available against any person who restrains the minors right to see his father and vice versa. He avers that the instant petition is merely filed for delay, for had petitioners really intended to bring the child before the court in accordance with the new rules on custody of minors, they would have done so on the dates specified in the January 23, 2003 and the February 24, 2003 orders of the trial court. Private respondent maintains that, under the law, he and petitioner Marie Antonette have shared custody and parental authority over their son. He alleges that at times when petitioner Marie Antonette is out of the country as required of her job as an international flight stewardess, he, the father, should have custody of their son and not the maternal grandparents. As correctly pointed out by the Court of Appeals, the assailed January 23, 2003 Order of the trial court did not grant custody of the minor to any of the parties but merely directed petitioners to produce the minor in court and explain why they are restraining his liberty. The assailed order was an interlocutory order precedent to the trial courts full inquiry into the issue of custody, which was still pending before it. Under Rule 41, Section 1 8 of the Rules of Court, an interlocutory order is not appealable but the aggrieved party may file an appropriate special action under Rule 65. The aggrieved party must show that the court gravely abused its discretion in issuing the interlocutory order. In the present case, it is incumbent upon petitioners to show that the trial court gravely abused its discretion in issuing the order.

Consequently, petitioners filed a petition for certiorari with the Court of Appeals, but the same was dismissed on November 10, 2003. The appellate court affirmed the February 24, 2003 Order of the trial court holding that its January 23, 2003 Order did not award the custody of the 2-year-old child to any one but was simply the standard order issued for the production of restrained persons. The appellate court held that the trial court was still about to conduct a full inquiry, in a summary proceeding, on the cause of the minors detention and the matter of his custody. The Court of Appeals ruled thus: WHEREFORE, the petition DISMISSED for lack of merit. SO ORDERED. 5 Petitioners moved for reconsideration, which was denied on March 19, 2004. is hereby

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Habeas corpus may be resorted to in cases where rightful custody is withheld from a person entitled thereto. 9Under Article 211 10 of the Family Code, respondent Loran and petitioner Marie Antonette have joint parental authority over their son and consequently joint custody. Further, although the couple is separated de facto, the issue of custody has yet to be adjudicated by the court. In the absence of a judicial grant of custody to one parent, both parents are still entitled to the custody of their child. In the present case, private respondents cause of action is the deprivation of his right to see his child as alleged in his petition. 11 Hence, the remedy of habeas corpus is available to him. In a petition for habeas corpus, the childs welfare is the supreme consideration. The Child and Youth Welfare Code 12 unequivocally provides that in all questions regarding the care and custody, among others, of the child, his welfare shall be the paramount consideration. 13 Again, it bears stressing that the order did not grant custody of the minor to any of the parties but merely directed petitioners to produce the minor in court and explain why private respondent is prevented from seeing his child. This is in line with the directive in Section 9 14 of A.M. 03-04-04SC 15 that within fifteen days after the filing of the answer or the expiration of the period to file answer, the court shall issue an order requiring the respondent (herein petitioners) to present the minor before the court. This was exactly what the court did. Moreover, Article 213 of the Family Code deals with the judicial adjudication of custody and serves as a guideline for the proper award of custody by the court. Petitioners can raise it as a counter argument for private respondents petition for custody. But it is not a basis for preventing the father to see his own child. Nothing in the said provision disallows a father from seeing or visiting his child under seven years of age. In sum, the trial court did not err in issuing the orders dated January 23, 2003 and February 24, 2003. Hence, the Court of Appeals properly dismissed the petition for certiorari against the said orders of the trial court. WHEREFORE, the petition is DENIED. The Decisiondated November 10, 2003 and the Resolutiondated March 19, 2004 of the Court of Appeals in CA-G.R. SP No. 75680 are AFFIRMED. Costs against petitioners. SO ORDERED.

LEONARDO A. QUISUMBING Associate Justice Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION

problems as Agnes wanted to stay in Makati City, while Franklininsisted that they stay in Boracay Island. On March 23, 2006, Agnes came to their conjugal home in Boracay, and asked for money and for Franklins permission for her to bring their daughter to Makati City for a brief vacation. Franklin readily agreed, but soon thereafter discovered that neither Agnes nor their daughter Simone would be coming back to Boracay. Franklin then filed a petition for habeas corpus before the CA for Agnes to produce Simone in court. On May 19, 2006, the CA issued a Resolution which ordered that a writ of habeas corpus be issued ordering that Simone be brought before said court on May 26, 2006. After a series of hearings and presentation of evidence, the CA, on June 8, 2006, promulgated the assailed Decision granting Franklin joint custody with Agnes of their minor child. Agnes filed a Motion for Reconsideration of this Decision, which was denied in the CAs August 3, 2006 Resolution for lack of merit. Petitioner now comes before this Court praying that we set aside the June 8, 2006 Decision and August 3, 2006 Resolution of the CA, and that we issue a temporary restraining order/injunction on the execution and implementation of the assailed rulings of the CA based on the following grounds: (A) The Court of Appeals seriously erred and acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it ruled upon, granted, and decided the matter of custody x x x during the May 26, 2006 hearing conducted on the petition for writ of habeas corpus in relation to and with custody of a minor under A.M. No. 0303-04-SC, C.A.-GR SP. No. 94329, as no reception of evidence to support said decision was had thereon, and the honorable court merely based its decision on mere conjectures and presumptions.

AGNES GAMBOA-HIRSCH 174485 Petitioner, t:

G.R. No.

Presen

QUISUMBI NG, J., Chairperso n, CARPIO, C ARPIO MORALES, TINGA, and VELASCO, JR., JJ. - versus HON. COURT OF APPEALS and FRANKLIN HARVEY HIRSCH, Respondents. Promulgated: July 11, 2007 x------------------------------------------------------------------------x R E S O LU T I O N

VELASCO, JR., J.: This is a petition for certiorari[1] under Rule 65 which seeks to set aside the June 8, 2006 Decision[2] of the Court of Appeals (CA) in CA-G.R. SP No. 94329, which granted private respondent Franklin Harvey Hirsch (Franklin) joint custody with petitioner Agnes Gamboa-Hirsch (Agnes) of their minor daughter Simone Noelle Hirsch (Simone); and the August 3, 2006 CA Resolution[3] denying petitioners Motion for Reconsideration for lack of merit. Petitioner also prays for the issuance of a temporary restraining order/injunction preventing the execution and implementation of the assailed June 8, 2006 CA Decision. Franklin and Agnes were married on December 23, 2000 in the City of Bacolod, and established their conjugal dwelling in Diniwid, Boracay Island, Malay, Aklan. OnDecember 21, 2002, a child was born to them and was named Simone. In 2005, the couple started to have marital

(B)

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The Court of Appeals seriously erred and acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it denied the motion for reconsideration filed by [petitioner Agnes] and only made addendums thereon appertaining to the custody aspect in its Decision that the same is deemed necessary for the protection of the interest of the child and a mere temporary arrangement while the case involving the herein parties are pending before the Regional Trial Court x x x quite contrary to its pronouncements during the May 26, 2006 hearing when the matter of custody was insisted upon by [respondent Franklin]. (C) The Court of Appeals seriously erred and acted with grave abuse of discretion amounting to lack or excess of jurisdiction when it granted joint custody in utter disregard of the provisions of the Family Code, as to minors seven (7) years of age and below, in relation to the jurisprudence and pronouncements laid down by the Honorable Supreme Court on the matter of the said provision.[4] Acting on the petition, this Court issued its October 2, 2006 Resolution denying petitioners prayer for the issuance of a temporary restraining order. Petitioner then filed a Motion for Reconsideration of this Resolution, and on April 11, 2007, this Court granted petitioners Motion for Reconsideration, issued a temporary restraining order, and awarded the sole custody of the minor, Simone, to petitioner.

This petition has merit. The CA committed grave abuse of discretion when it granted joint custody of the minor child to both parents. The Convention on the Rights of the Child provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration (emphasis supplied).[5] The Child and Youth Welfare Code, in the same way, unequivocally provides that in all questions regarding the care and custody, among others, of the child, his/her welfare shall be the paramount consideration.[6] The so-called tender-age presumption under Article 213 of the Family Code may be overcome only by compelling evidence of the mothers unfitness. The mother is declared unsuitable to have custody of her children in one or more of the following instances: neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity, or affliction with a communicable disease.[7] Here, the mother was not shown to be unsuitable or grossly incapable of caring for her minor child. All told, no compelling reason has been adduced to wrench the child from the mothers custody. WHEREFORE, premises considered, the petition is GIVEN DUE COURSE. The June 8, 2006 Decision and August 3, 2006 Resolution of the CA are hereby SET ASIDE. Sole custody over Simone Noelle Hirsch is hereby AWARDED to the mother, petitioner Agnes Gamboa-Hirsch. SO ORDERED.

- versus SHARON DEL MUNDO DACASIN, Promulgated: Respondent. ry 5, 2010 x------------------------------------------------------------------------x DECISION CARPIO, J.: The Case For review[1] is a dismissal[2] of a suit to enforce a post-foreign divorce child custody agreement for lack of jurisdiction. The Facts Petitioner Herald Dacasin (petitioner), American, and respondent Sharon Del Mundo Dacasin (respondent), Filipino, were married in Manila in April 1994. They have one daughter, Stephanie, born on 21 September 1995. In June 1999, respondent sought and obtained from the Circuit Court, 19th Judicial Circuit, Lake County, Illinois (Illinois court) a divorce decree against petitioner.[3] In its ruling, the Illinois court dissolved the marriage of petitioner and respondent, awarded to respondent sole custody of Stephanie and retained jurisdiction over the case for enforcement purposes. Februa

PRESBITERO J. VELASCO, JR. Associate Justice SECOND DIVISION HERALD BLACK DACASIN, 168785 Petitioner, Present: CARPIO, J., Chairpers on, BRION, DEL CASTILLO, ABAD, and PEREZ, JJ. G.R. No.

On 28 January 2002, petitioner and respondent executed in Manila a contract (Agreement[4]) for the joint custody of Stephanie. The parties chose Philippine courts as exclusive forum to adjudicate disputes arising from the Agreement. Respondent undertook to obtain from the Illinois court an order relinquishing jurisdiction to Philippine courts. In 2004, petitioner sued respondent in the Regional Trial Court of Makati City, Branch 60 (trial court) to enforce the Agreement. Petitioner alleged that in violation of the Agreement, respondent exercised sole custody over Stephanie. Respondent sought the dismissal of the complaint for, among others, lack of jurisdiction because of the Illinois courts retention of jurisdiction to enforce the divorce decree. The Ruling of the Trial Court In its Order dated 1 March 2005, the trial court sustained respondents motion and dismissed the case for lack of

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jurisdiction. The trial court held that: (1) it is precluded from taking cognizance over the suit considering the Illinois courts retention of jurisdiction to enforce its divorce decree, including its order awarding sole custody of Stephanie to respondent; (2) the divorce decree is binding on petitioner following the nationality rule prevailing in this jurisdiction;[5] and (3) the Agreement is void for contravening Article 2035, paragraph 5 of the Civil Code[6] prohibiting compromise agreements on jurisdiction.[7] Petitioner sought reconsideration, raising the new argument that the divorce decree obtained by respondent is void. Thus, the divorce decree is no bar to the trial courts exercise of jurisdiction over the case. In its Order dated 23 June 2005, the trial court denied reconsideration, holding that unlike in the case of respondent, the divorce decree is binding on petitioner under the laws of his nationality. Hence, this petition. Petitioner submits the following alternative theories for the validity of the Agreement to justify its enforcement by the trial court: (1) the Agreement novated the valid divorce decree, modifying the terms of child custody from sole (maternal) to joint;[8] or (2) the Agreement is independent of the divorce decree obtained by respondent. The Issue The question is whether the trial court has jurisdiction to take cognizance of petitioners suit and enforce the Agreement on the joint custody of the parties child. The Ruling of the Court The trial court has jurisdiction to entertain petitioners suit but not to enforce the Agreement which is void. However, factual and equity considerations militate against the dismissal of petitioners suit and call for the remand of the case to settle the question of Stephanies custody. Regional Trial Jurisdiction Courts Vested With

petitioners suit to enforce the Agreement on joint child custody, belongs to this species of actions.[10] Thus, jurisdiction-wise, petitioner went to the right court. Indeed, the trial courts refusal to entertain petitioners suit was grounded not on its lack of power to do so but on its thinking that the Illinois courts divorce decree stripped it of jurisdiction. This conclusion is unfounded. What the Illinois court retained was jurisdiction x x x for the purpose of enforcing all and sundry the various provisions of [its] Judgment for Dissolution.[11] Petitioners suit seeks the enforcement not of the various provisions of the divorce decree but of the postdivorce Agreement on joint child custody. Thus, the action lies beyond the zone of the Illinois courts so-called retained jurisdiction.

Petitioners Suit Lacks Cause of Action The foregoing notwithstanding, the trial court cannot enforce the Agreement which is contrary to law. In this jurisdiction, parties to a contract are free to stipulate the terms of agreement subject to the minimum ban on stipulations contrary to law, morals, good customs, public order, or public policy.[12] Otherwise, the contract is denied legal existence, deemed inexistent and void from the beginning.[13] For lack of relevant stipulation in the Agreement, these and other ancillary Philippine substantive law serve as default parameters to test the validity of the Agreements joint child custody stipulations.[14] At the time the parties executed the Agreement on 28 January 2002, two facts are undisputed: (1) Stephanie was under seven years old (having been born on 21 September 1995); and (2) petitioner and respondent were no longer married under the laws of the United States because of the divorce decree. The relevant Philippine law on child custody for spouses separated in fact or in law[15] (under the second paragraph of Article 213 of the Family Code) is also undisputed: no child under seven years of age shall be separated from the mother x x x.[16] (This statutory awarding of sole parental custody[17] to the mother is mandatory,[18] grounded on sound policy consideration,[19] subject only to a narrow exception not alleged to obtain here.[20]) Clearly then, the Agreements object to establish a post-divorce joint custody regime between respondent and petitioner over their child under seven years old contravenes Philippine law.

The Agreement is not only void ab initio for being contrary to law, it has also been repudiated by the mother when she refused to allow joint custody by the father. The Agreement would be valid if the spouses have not divorced or separated because the law provides for joint parental authority when spouses live together.[21] However, upon separation of the spouses, the mother takes sole custody under the law if the child is below seven years old and any agreement to the contrary is void. Thus, the law suspends the joint custody regime for (1) children under seven of (2) separated or divorced spouses. Simply put, for a child within this age bracket (and for commonsensical reasons), the law decides for the separated or divorced parents how best to take care of the child and that is to give custody to the separated mother. Indeed, the separated parents cannot contract away the provision in the Family Code on the maternal custody of children below seven years anymore than they can privately agree that a mother who is unemployed, immoral, habitually drunk, drug addict, insane or afflicted with a communicable disease will have sole custody of a child under seven as these are reasons deemed compelling to precludethe application of the exclusive maternal custody regime under the second paragraph of Article 213.[22] It will not do to argue that the second paragraph of Article 213 of the Family Code applies only to judicial custodial agreements based on its text that No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. To limit this provisions enforceability to court sanctioned agreements while placing private agreements beyond its reach is to sanction a double standard in custody regulation of children under seven years old of separated parents. This effectively empowers separated parents, by the simple expedient of avoiding the courts, to subvert a legislative policy vesting to the separated mother sole custody of her children under seven years of age to avoid a tragedy where a mother has seen her baby torn away from her.[23] This ignores the legislative basis that *n+o man can sound the deep sorrows of a mother who is deprived of her child of tender age.[24] It could very well be that Article 213s bias favoring one separated parent (mother) over the other (father) encourages paternal neglect, presumes incapacity for joint parental custody, robs the parents of custodial options, or hijacks decisionmaking between the separated parents.[25] However, these are objections which question the laws wisdom not its validity or uniform enforceability. The forum to air and remedy these grievances is

to Enforce Contracts

Subject matter jurisdiction is conferred by law. At the time petitioner filed his suit in the trial court, statutory law vests on Regional Trial Courts exclusive original jurisdiction over civil actions incapable of pecuniary estimation.[9] An action for specific performance, such as

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the legislature, not this Court. At any rate, the rules seeming harshness or undesirability is tempered by ancillary agreements the separated parents may wish to enter such as granting the father visitation and other privileges. These arrangements are not inconsistent with the regime of sole maternal custody under the second paragraph of Article 213 which merely grants to the mother final authority on the care and custody of the minor under seven years of age, in case of disagreements. Further, the imposed custodial regime under the second paragraph of Article 213 is limited in duration, lasting only until the childs seventh year. From the eighth year until the childs emancipation, the law gives the separated parents freedom, subject to the usual contractual limitations, to agree on custody regimes they see fit to adopt. Lastly, even supposing that petitioner and respondent are not barred from entering into the Agreement for the joint custody of Stephanie, respondent repudiated the Agreement by asserting sole custody over Stephanie. Respondents act effectively brought the parties back to ambit of the default custodial regime in the second paragraph of Article 213 of the Family Code vesting on respondent sole custody of Stephanie. Nor can petitioner rely on the divorce decrees alleged invalidity - not because the Illinois court lacked jurisdiction or that the divorce decree violated Illinois law, but because the divorce was obtained by his Filipino spouse[26] - to support the Agreements enforceability. The argument that foreigners in this jurisdiction are not bound by foreign divorce decrees is hardly novel. Van Dorn v. Romillo[27] settled the matter by holding that an alien spouse of a Filipino is bound by a divorce decree obtained abroad.[28] There, we dismissed the alien divorcees Philippine suit for accounting of alleged post-divorce conjugal property and rejected his submission that the foreign divorce (obtained by the Filipino spouse) is not valid in this jurisdiction in this wise:

of the Union. What he is contending in this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local law and public policy.

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage. xxxx Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioners husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own countrys Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property. (Emphasis supplied)

Stephanies custody. Stephanie is now nearly 15 years old, thus removing the case outside of the ambit of the mandatory maternal custody regime under Article 213 and bringing it within coverage of the default standard on child custody proceedings the best interest of the child.[30] As the question of custody is already before the trial court and the childs parents, by executing the Agreement, initially showed inclination to share custody, it is in the interest of swift and efficient rendition of justice to allow the parties to take advantage of the courts jurisdiction, submit evidence on the custodial arrangement best serving Stephanies interest, and let the trial court render judgment. This disposition is consistent with the settled doctrine that in child custody proceedings, equity may be invoked to serve the childs best interest.[31] WHEREFORE, we REVERSE the Orders dated 1 March 2005 and 23 June 2005 of the Regional Trial Court of Makati City, Branch 60. The case is REMANDED for further proceedings consistent with this ruling. SO ORDERED. ANTONIO T. CARPIO Associate Justice

G.R. No. 194366

October 10, 2012

NAPOLEON D. NERI, ALICIA D. NERIMONDEJAR, VISMINDA D. NERICHAMBERS, ROSA D. NERI-MILLAN, DOUGLAS D. NERI, EUTROPIA D. ILLUTCOCKINOS AND VICTORIA D. ILLUTPIALA, Petitioners, vs. HEIRS OF HADJI YUSOP UY AND JULPHA* IBRAHIM UY, Respondents. DECISION PERLAS-BERNABE, J.: In this Petition for Review on Certiorari1 under Rule 45 of the Rules of Court, petitioners Napoleon D. Neri (Napoleon), Alicia D. Neri-Mondejar (Alicia), Visminda D. Neri-Chambers (Visminda), Rosa D. Neri-Millan (Rosa), Douglas D. Neri (Douglas), Eutropia D. Illut-Cockinos (Eutropia), and Victoria D. Illut-Piala (Victoria) seek to reverse and set aside the April 27, 2010 Decision2 and October 18, 2010 Resolution3 of the Court of Appeals (CA) in CA-G.R. CV No. 01031-MIN which annulled the October 25, 2004 Decision4 of the Regional Trial Court (RTC) of Panabo City, Davao del Norte and instead, entered a new one dismissing petitioners complaint for annulment of sale, damages and attorneys feesagainst herein respondents heirs of spouses Hadji Yusop Uy and Julpha Ibrahim Uy (heirs of Uy).

There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State

We reiterated Van Dorn in Pilapil v. Ibay-Somera[29] to dismiss criminal complaints for adultery filed by the alien divorcee (who obtained the foreign divorce decree) against his former Filipino spouse because he no longer qualified as offended spouse entitled to file the complaints under Philippine procedural rules. Thus, it should be clear by now that a foreign divorce decree carries as much validity against the alien divorcee in this jurisdiction as it does in the jurisdiction of the aliens nationality, irrespective of who obtained the divorce. The Facts of the Case and Nature of Proceeding Justify Remand Instead of ordering the dismissal of petitioners suit, the logical end to its lack of cause of action, we remand the case for the trial court to settle the question of

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The Facts During her lifetime, Anunciacion Neri (Anunciacion) had seven children, two (2) from her first marriage with Gonzalo Illut (Gonzalo), namely: Eutropia and Victoria, and five (5) from her second marriage with Enrique Neri (Enrique), namely: Napoleon, Alicia, Visminda, Douglas and Rosa. Throughout the marriage of spouses Enrique and Anunciacion, they acquired several homestead properties with a total area of 296,555 square meters located in Samal, Davao del Norte, embraced by Original Certificate of Title (OCT) Nos. (P7998) P-21285, (P-14608) P-51536 and P20551 (P-8348)7issued on February 15, 1957, August 27, 1962 and July 7, 1967, respectively. On September 21, 1977, Anunciacion died intestate. Her husband, Enrique, in his personal capacity and as natural guardian of his minor children Rosa and Douglas, together with Napoleon, Alicia, and Vismindaexecuted an Extra-Judicial Settlement of the Estate with Absolute Deed of Sale8 on July 7, 1979, adjudicating among themselves the said homestead properties, and thereafter, conveying themto the late spouses Hadji Yusop Uy and Julpha Ibrahim Uy (spouses Uy)for a consideration of P 80,000.00. On June 11, 1996, the children of Enrique filed a complaint for annulment of saleof the said homestead properties against spouses Uy (later substituted by their heirs)before the RTC, docketed as Civil Case No.96-28, assailing the validity of the sale for having been sold within the prohibited period. Thecomplaint was later amended to include Eutropia and Victoriaas additional plaintiffs for having been excluded and deprived of their legitimes as childrenof Anunciacion from her first marriage. In their amended answer with counterclaim, the heirs of Uy countered that the sale took place beyond the 5-year prohibitory period from the issuance of the homestead patents. They also denied knowledge of Eutropia and Victorias exclusionfrom the extrajudicial settlement and sale of the subject properties, and interposed further the defenses of prescription and laches. The RTC Ruling On October 25, 2004, the RTC rendered a decision ordering, among others, the annulment of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale. It ruled that while the sale occurred beyond the 5-year prohibitory period, the sale is still void because Eutropia and Victoria were deprived of their hereditary rights and that Enrique had no judicial authority to sell the shares of his minor children, Rosa and Douglas.

Consequently, it rejected the defenses of laches and prescription raised by spouses Uy, who claimed possession of the subject properties for 17 years, holding that coownership rights are imprescriptible. The CA Ruling On appeal, the CAreversed and set aside the ruling of the RTC in its April 27, 2010 Decision and dismissed the complaint of the petitioners. It held that, while Eutropia and Victoria had no knowledge of the extrajudicial settlement and sale of the subject properties and as such, were not bound by it, the CA found it unconscionable to permit the annulment of the sale considering spouses Uys possession thereof for 17 years, and thatEutropia and Victoriabelatedlyfiled their actionin 1997, ormore than two years fromknowledge of their exclusion as heirs in 1994 when their stepfather died. It, however, did not preclude the excluded heirs from recovering their legitimes from their coheirs. Similarly, the CA declared the extrajudicial settlement and the subsequent saleas valid and binding with respect to Enrique and hischildren, holding that as co-owners, they have the right to dispose of their respective shares as they consider necessary or fit.While recognizing Rosa and Douglas to be minors at that time, they were deemed to have ratified the sale whenthey failed to question it upon reaching the age of majority.Italso found laches to have set in because of their inaction for a long period of time. The Issues In this petition, petitioners imputeto the CA the following errors: I. WHEN IT UPHELDTHE VALIDITY OF THE "EXTRA JUDICIAL SETTLEMENT OF THE ESTATE WITH ABSOLUTE DEED OF SALE" AS FAR AS THE SHARES OF EUTROPIA AND VICTORIA WERE CONCERNED, THEREBY DEPRIVING THEM OF THEIR INHERITANCE; II. WHEN IT DID NOT NULLIFY OR ANNUL THE "EXTRA JUDICIAL SETTLEMENT OF THE ESTATE WITH ABSOLUTE DEED OF SALE" WITH RESPECT TO THE SHARESOF ROSA AND DOUGLAS, THEREBY DEPRIVING THEM OF THEIR INHERITANCE; and III. WHEN IT FOUND THAT LACHES OR PRESCRIPTION HAS SET IN. The Ruling of the Court The petitionis meritorious. It bears to stress that all the petitioners herein are indisputably legitimate children of Anunciacion from her first and second marriages with Gonzalo and Enrique, respectively, and consequently, are entitled to inherit from her in equal shares,

pursuant to Articles 979 and 980 of the Civil Code which read: ART. 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages. xxx ART. 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares. As such, upon the death of Anunciacion on September 21, 1977, her children and Enrique acquired their respective inheritances,9 entitling them to their pro indiviso shares in her whole estate, as follows: 9/16 (1/2 of the conjugal assets + 1/16) 1/16 1/16

Enrique Eutropia Victoria

Napoleon 1/16 Alicia 1/16

Visminda 1/16 Rosa Douglas 1/16 1/16

Hence, in the execution of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale in favor of spouses Uy, all the heirs of Anunciacionshould have participated. Considering that Eutropia and Victoria were admittedly excluded and that then minors Rosa and Douglas were not properly represented therein, the settlement was not valid and binding uponthem and consequently, a total nullity. Section 1, Rule 74 of the Rules of Court provides: SECTION 1. Extrajudicial settlement agreement between heirs. x x x by

The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the next succeeding section; but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof. (Underscoring added) The effect of excluding the heirs in the settlement of estate was further elucidated in Segura v. Segura,10 thus: It is clear that Section 1 of Rule 74 does not apply to the partition in question which was null and void as far as the plaintiffs were concerned. The rule covers only valid partitions. The partition in the present case

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was invalid because it excluded six of the nine heirs who were entitled to equal shares in the partitioned property. Under the rule "no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof." As the partition was a total nullity and did not affect the excluded heirs, it was not correct for the trial court to hold that their right to challenge the partition had prescribed after two years from its execution However, while the settlement of the estate is null and void, the subsequent sale of the subject propertiesmade by Enrique and his children, Napoleon, Alicia and Visminda, in favor of the respondents isvalid but only with respect to their proportionate shares therein.It cannot be denied that these heirs have acquired their respective shares in the properties of Anunciacion from the moment of her death11and that, as owners thereof, they can very well sell their undivided share in the estate.12 With respect to Rosa and Douglas who were minors at the time of the execution of the settlement and sale, their natural guardian and father, Enrique, represented them in the transaction. However, on the basis of the laws prevailing at that time, Enrique was merely clothed with powers of administration and bereft of any authority to dispose of their 2/16 shares in the estate of their mother, Anunciacion. Articles 320 and 326 of the Civil Code, the laws in force at the time of the execution of the settlement and sale, provide: ART. 320. The father, or in his absence the mother, is the legal administrator of the property pertaining to the child under parental authority. If the property is worth more than two thousand pesos, the father or mother shall give a bond subject to the approval of the Court of First Instance. ART. 326. When the property of the child is worth more than two thousand pesos, the father or mother shall be considered a guardian of the childs property, subject to the duties and obligations of guardians under the Rules of Court. Corollarily, Section 7, Rule 93 of the Rules of Court also provides: SEC. 7. Parents as Guardians. When the property of the child under parental authority is worth two thousand pesos or less, the father or the mother, without the necessity of court appointment, shall be his legal guardian. When the property of the child is worth more than two thousand pesos, the father or the mother shall be considered guardian of the childs property, with the duties and obligations of guardians under these Rules, and shall file the petition required by Section 2 hereof. For good

reasons, the court may, however, appoint another suitable persons. Administration includes all acts for the preservation of the property and the receipt of fruits according to the natural purpose of the thing. Any act of disposition or alienation, or any reduction in the substance of the patrimony of child, exceeds the limits of administration.13 Thus, a father or mother, as the natural guardian of the minor under parental authority, does not have the power to dispose or encumber the property of the latter. Such power is granted by law only to a judicial guardian of the wards property and even then only with courts prior approval secured in accordance with the proceedings set forth by the Rules of Court.14 Consequently, the disputed sale entered into by Enrique in behalf of his minor children without the proper judicial authority, unless ratified by them upon reaching the age of majority,15 is unenforceable in accordance with Articles 1317 and 1403(1) of the Civil Code which provide: ART. 1317. No one may contract in the name of another without being authorized by the latter or unless he has by law a right to represent him. A contract entered into in the name of another by one who has no authority or legal representation, or who has acted beyond his powers, shall be unenforceable, unless it is ratified, expressly or impliedly, by the person on whose behalf it has been executed, before it is revoked by the other contracting party. ART. 1403. The following contracts are unenforceable, unless they are ratified: (1) Those entered into the name of another person by one who has been given no authority or legal representation, or who has acted beyond his powers; xxx Ratification means that one under no disability voluntarily adopts and gives sanction to some unauthorized act or defective proceeding, which without his sanction would not be binding on him. It is this voluntary choice, knowingly made, which amounts to a ratification of what was theretofore unauthorized, and becomes the authorized act of the party so making the ratification.16 Once ratified, expressly or impliedly such as when the person knowingly received benefits from it, the contract is cleansed from all its defects from the moment it was constituted,17 as it has a retroactive effect. Records, however, show that Rosa had ratified the extrajudicial settlement of the estate with absolute deed of sale. In

Napoleon and Rosas Manifestation18 before the RTC dated July 11, 1997,they stated: "Concerning the sale of our parcel of land executed by our father, Enrique Neri concurred in and conformed to by us and our other two sisters and brother (the other plaintiffs), in favor of Hadji Yusop Uy and his spouse Hadja Julpa Uy on July 7, 1979, we both confirmed that the same was voluntary and freely made by all of us and therefore the sale was absolutely valid and enforceable as far as we all plaintiffs in this case are concerned;" (Underscoring supplied) In their June 30, 1997 JointAffidavit,19 Napoleon and Rosa also alleged: "That we are surprised that our names are included in this case since we do not have any intention to file a case against Hadji Yusop Uy and Julpha Ibrahim Uy and their family and we respect and acknowledge the validity of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale dated July 7, 1979;" (Underscoring supplied) Clearly, the foregoing statements constitutedratification of the settlement of the estate and the subsequent sale, thus, purging all the defects existing at the time of its execution and legitimizing the conveyance of Rosas 1/16 share in the estate of Anunciacion to spouses Uy. The same, however, is not true with respect to Douglas for lack of evidence showing ratification. Considering, thus, that the extrajudicial settlement with sale is invalid and therefore, not binding on Eutropia, Victoria and Douglas, only the shares ofEnrique, Napoleon, Alicia, Visminda and Rosa in the homestead properties have effectivelybeen disposed in favor of spouses Uy. "A person can only sell what he owns, or is authorized to sell and the buyer can as a consequence acquire no more than what the sellercan legally transfer."20 On this score, Article 493 of the Civil Codeis relevant, which provides: Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership. Consequently, spouses Uy or their substituted heirs became pro indiviso coowners of the homestead properties with Eutropia, Victoria and Douglas, who retained title to their respective 1/16 shares. They were deemed to be holding the 3/16 shares of Eutropia, Victoria and

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Douglas under an implied constructive trust for the latters benefit, conformably with Article 1456 of the Civil Code which states:"if property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes." As such, it is only fair, just and equitable that the amount paid for their shares equivalent to P 5,000.0021 each or a total of P 15,000.00 be returned to spouses Uy with legal interest. On the issue of prescription, the Court agrees with petitioners that the present action has not prescribed in so far as it seeks to annul the extrajudicial settlement of the estate. Contrary to the ruling of the CA, the prescriptive period of 2 years provided in Section 1 Rule 74 of the Rules of Court reckoned from the execution of the extrajudicial settlement finds no application to petitioners Eutropia, Victoria and Douglas, who were deprived of their lawful participation in the subject estate. Besides, an "action or defense for the declaration of the inexistence of a contract does not prescribe" in accordance with Article 1410 of the Civil Code. However, the action to recover property held in trust prescribes after 10 years from the time the cause of action accrues,22 which is from the time of actual notice in case of unregistered deed.23 In this case, Eutropia, Victoria and Douglas claimed to have knowledge of the extrajudicial settlement with sale after the death of their father, Enrique, in 1994 which spouses Uy failed to refute. Hence, the complaint filed in 1997 was well within the prescriptive period of 10 years. WHEREFORE, the instant petition is GRANTED. The April 27, 2010 Decision and October 18, 2010 Resolution of the Court of Appeals are REVERSED and SET ASIDE and a new judgment is entered: 1. Declaring the Extra-Judicial Settlement of the Estate of Anunciacion Neri NULL and VOID; 2. Declaring the Absolute Deed of Sale in favor of the late spouses Hadji Yusop Uy and Julpha Ibrahim Uy as regards the 13/16 total shares of the late Enrique Neri, Napoleon Neri, Alicia D. Neri-Mondejar, Visminda D. Neri-Chambers and Rosa D. Neri-Millan VALID; 3. Declaring Eutropia D. Illut-Cockinos, Victoria D. Illut-Piala and Douglas D. Neri as the LAWFUL OWNERSof the 3/16 portions of the subject homestead properties, covered by Original Certificate of Title Nos. (P-7998) P-2128, (P-14608) P-5153 and P20551 (P-8348); and

4. Ordering the estate of the late Enrique Neri, as well as Napoleon Neri, Alicia D. Neri-Mondejar, Visminda D. Neri-Chambers and Rosa D. Neri-Millan to return to the respondents jointly and solidarily the amount paid corresponding to the 3/16 shares of Eutropia, Victoria and Douglas in the total amount of P 15,000.00, with legal interest at 6% per annum computed from the time of payment until finality of this decision and 12% per annum thereafter until fully paid. No pronouncement as to costs.

swimming pool. In this connection, respondent distributed the parents/guardians permit forms to the pupils. Respondent admitted that Chiara Mae Federicos permit form[6] was unsigned. Nevertheless, she concluded that Chiara Mae was allowed by her mother to join the activity since her mother personally brought her to the school with her packed lunch and swimsuit.

Before the activity started, respondent warned the pupils who did not know how to swim to avoid the deeper ESTELA M. PERLAS-BERNABE area. However, while the pupils were Associate Justice swimming, two of them sneaked Respondent went after to verify SCHOOL OF THE HOLY SPIRIT OF QUEZON CITY and/or out. SR.CRISPINA G.R. No.them 165565 where they were going. A. TOLENTINO, S.Sp.S., SO ORDERED. Petitioners, Unfortunately, while respondent was away, Chiara Mae drowned. When respondent returned, the maintenance man was already administering cardiopulmonary resuscitation on Chiara Mae. She was still alive when respondent rushed her to the GeneralMalvar Hospital where she was pronounced dead on arrival. On May 23, 2000, petitioners issued a July 14, 2008 Notice of Administrative Charge[7] to respondent for alleged gross negligence and required her to submit her written explanation. Thereafter, petitioners conducted a clarificatory hearing which respondent attended. Respondent also submitted her Affidavit of Explanation.[8] On July 31, 2000, petitioners dismissed respondent on the ground of gross negligence resulting to loss of trust and confidence.[9] Meanwhile, Chiara Maes parents filed a P7 Million damage suit against petitioners and respondent, among others. They also filed against respondent a criminal complaint for reckless imprudence resulting in homicide. On July 25, 2001, respondent in turn filed a complaint[10] against the school and/or Sr. Crispina Tolentino for illegal dismissal, with a prayer for reinstatement with full backwages and other money claims, damages and attorneys fees. In dismissing the complaint, the Labor Arbiter declared that respondent was validly terminated for gross neglect of duty. He opined that Chiara Mae drowned because respondent had left the pupils without any adult supervision. He also noted that the absence of adequate facilities should have alerted respondent before allowing the pupils to use the swimming pool. The Labor Arbiter further concluded that although respondents

- versus CORAZON P. TAGUIAM, Respondent. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION QUISUMBING, J.: This petition assails the Decision[1] dated June 7, 2004 of the Court of Appeals in CA-G.R. SP No. 81480, which reversed the Resolution[2] dated September 20, 2002 of the National Labor Relations Commission (NLRC) in NLRC NCR CA No. 031627-02. The NLRC had affirmed the Decision[3] dated March 26, 2002 of the Labor Arbiter dismissing respondents complaint for illegal dismissal. This petition likewise assails the Resolution[4] dated September 30, 2004 of the Court of Appeals denying petitioners motion for reconsideration. The antecedent facts are as follows: Respondent Corazon P. Taguiam was the Class Adviser of Grade 5-Esmeralda of the petitioner, School of the Holy Spirit of Quezon City. On March 10, 2000, the class president, wrote a letter[5] to the grade school principal requesting permission to hold a year-end celebration at the school grounds. The principal authorized the activity and allowed the pupils to use the

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negligence was not habitual, the same warranted her dismissal since death resulted therefrom. Respondent appealed to the NLRC which, however, affirmed the dismissal of the complaint. Aggrieved, respondent instituted a petition for certiorari before the Court of Appeals, which ruled in her favor. The appellate court observed that there was insufficient proof that respondents negligence was both gross and habitual. The Court of Appeals disposed, thus: WHEREFORE, the Court hereby GRANTS the petition. The assailed September 20, 2002 Resolution of the National Labor Relations Commission entitled Corazon Taguiam vs. School of the Holy Spirit and/or Sister Crispina Tolentino[,] NLRC NCR Case No. 00-07-03877-01[,] NLRC NCR CA No. 031627-02 is hereby REVERSED and SET ASIDE, and a new one is hereby ENTERED directing the private respondent the School of the Holy Spirit to: (1) Pay the petitioner full backwages, plus all other benefits, bonuses and general increases to which she would have been normally entitled, had she not been dismissed and had she not been forced to stop working computed up to the finality of this decision; (2) Pay the petitioner separation pay equivalent to one (1) month for every year of service in addition to full backwages; (3) Pay the petitioner an amount equivalent to 10% of the judgment award as attorneys fees; (4) Pay the cost of this suit. SO ORDERED.[11] In this petition, petitioners contend that the Court of Appeals erred in: REVERSING AND SETTING ASIDE THE DECISION AND RESOLUTION OF THE NATIONAL LABOR RELATIONS COMMISSION AFFIRMING THE DECISION OF THE LABOR ARBITER DISMISSING THE COMPLAINT FOR LACK OF MERIT.[12] Simply stated, the sole issue presented for our resolution is whether respondents dismissal on the ground of gross negligence resulting to loss of trust and confidence was valid.

The issue of whether a party is negligent is a question of fact. As a rule, the Supreme Court is not a trier of facts and this applies with greater force in labor cases.[13] However, where the issue is shrouded by a conflict of factual perception, we are constrained to review the factual findings of the Court of Appeals. In this case, the findings of facts of the appellate court contradict those of the Labor Arbiter and the NLRC.[14] Under Article 282[15] of the Labor Code, gross and habitual neglect of duties is a valid ground for an employer to terminate an employee. Gross negligence implies a want or absence of or a failure to exercise slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them.[16] Habitual neglect implies repeated failure to perform ones duties for a period of time, depending upon the circumstances.[17] Our perusal of the records leads us to conclude that respondent had been grossly negligent. First, it is undisputed that ChiaraMaes permit form was unsigned. Yet, respondent allowed her to join the activity because she assumed that Chiara Maes mother has allowed her to join it by personally bringing her to the school with her packed lunch and swimsuit. The purpose of a permit form is precisely to ensure that the parents have allowed their child to join the school activity involved. Respondent cannot simply ignore this by resorting to assumptions. Respondent admitted that she was around whenChiara Mae and her mother arrived. She could have requested the mother to sign the permit form before she left the school or at least called her up to obtain her conformity. Second, it was respondents responsibility as Class Adviser to supervise her class in all activities sanctioned by the school.[18] Thus, she should have coordinated with the school to ensure that proper safeguards, such as adequate first aid and sufficient adult personnel, were present during their activity. She should have been mindful of the fact that with the number of pupils involved, it would be impossible for her by herself alone to keep an eye on each one of them. As it turned out, since respondent was the only adult present, majority of the pupils were left unsupervised when she followed the two pupils who sneaked out. In the light of the odds involved, respondent should have considered that those who sneaked out could not have left the school premises since there were guards manning

the gates. The guards would not have allowed them to go out in their swimsuits and without any adult accompanying them. But those who stayed at the pool were put at greater risk, when she left them unattended by an adult. Notably, respondents negligence, although gross, was not habitual. In view of the considerable resultant damage, however, we are in agreement that the cause is sufficient to dismiss respondent. This is not the first time that we have departed from the requirements laid down by the law that neglect of duties must be both gross and habitual. In Philippine Airlines, Inc. v. NLRC,[19]we ruled that Philippine Airlines (PAL) cannot be legally compelled to continue with the employment of a person admittedly guilty of gross negligence in the performance of his duties although it was his first offense. In that case, we noted that a mere delay on PALsflight schedule due to aircraft damage entails problems like hotel accommodations for its passengers, rebooking, the possibility of law suits, and payment of special landing fees not to mention the soaring costs of replacing aircraft parts.[20] In another case,Fuentes v. National Labor Relations Commission,[21] we held that it would be unfair to compel Philippine Banking Corporation to continue employing its bank teller. In that case, we observed that although the tellers infraction was not habitual, a substantial amount of money was lost. The deposit slip had already been validated prior to its loss and the amount reflected thereon is already considered as current liabilities in the banks balance sheet.[22] Indeed, the sufficiency of the evidence as well as the resultant damage to the employer should be considered in the dismissal of the employee. In this case, the damage went as far as claiming the life of a child. As a result of gross negligence in the present case, petitioners lost its trust and confidence in respondent. Loss of trust and confidence to be a valid ground for dismissal must be based on a willful breach of trust and founded on clearly established facts. A breach is willful if it is done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently.[23] Otherwise stated, it must rest on substantial grounds and not on the employers arbitrariness, whims, caprices or suspicion; otherwise, the employee would eternally remain at the mercy of the employer. It should be genuine and not simulated; nor should it appear as a mere afterthought to justify earlier action taken in bad faith or a subterfuge for causes which are improper, illegal or unjustified. It has never been intended to afford an occasion for abuse because of its subjective nature. There

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must, therefore, be an actual breach of duty committed by the employee which must be established by substantial evidence.[24] As a teacher who stands in loco parentis to her pupils, respondent should have made sure that the children were protected from all harm while in her company.[25] Respondent should have known that leaving the pupils in the swimming pool area all by themselves may result in an accident. A simple reminder not to go to the deepest part of the pool[26] was insufficient to cast away all the serious dangers that the situation presented to the children, especially when respondent knew that Chiara Mae cannot swim.[27] Dismally, respondent created an unsafe situation which exposed the lives of all the pupils concerned to real danger. This is a clear violation not only of the trust and confidence reposed on her by the parents of the pupils but of the school itself. Finally, we note that based on the criminal complaint filed by Chiara Maes parents, the Assistant City Prosecutor found probable cause to indict respondent for the crime of reckless imprudence resulting in homicide. The Assistant City Prosecutor held that respondent should have foreseen the danger lurking in the waters. By leaving her pupils in the swimming pool, respondent displayed an inexcusable lack of foresight and precaution.[28] While this finding is not controlling for purposes of the instant case, this only supports our conclusion that respondent has indeed been grossly negligent. All told, there being a clear showing that respondent was culpable for gross negligence resulting to loss of trust and confidence, her dismissal was valid and legal. It was error for the Court of Appeals to reverse and set aside the resolution of the NLRC. WHEREFORE, the petition is GRANTED. The assailed Decision dated June 7, 2004 of the Court of Appeals in CA-G.R. SP No. 81480 is SET ASIDE. The Resolution dated September 20, 2002 of the National Labor Relations Commission in NLRC NCR CA No. 031627-02 is REINSTATED. No pronouncement as to costs. SO ORDERED.

REPUBLIC OF THE PHILIPPINES, petitioner, vs. THE HON. COURT OF APPEALS (Twentieth Division), HON. PRESIDING JUDGE FORTUNITO L. MADRONA, RTCBR. 35 and APOLINARIA MALINAO JOMOC, respondents. DECISION CARPIO-MORALES, J.: In In the Matter of Declaration of Presumptive Death of Absentee Spouse Clemente P. Jomoc, Apolinaria Malinao Jomoc, petitioner, the Ormoc City, Regional Trial Court, Branch 35, byOrder of September 29, 1999,[1] granted the petition on the basis of the Commissioners Report[2] and accordingly declared the absentee spouse, who had left his petitioner-wife nine years earlier, presumptively dead. In granting the petition, the trial judge, Judge Fortunito L. Madrona, cited Article 41, par. 2 of the Family Code. Said article provides that for the purpose of contracting a valid subsequent marriage during the subsistence of a previous marriage where the prior spouse had been absent for four consecutive years, the spouse present must institute summary proceedings for the declaration of presumptive death of the absentee spouse, without prejudice to the effect of the reappearance of the absent spouse. The Republic, through the Office of the Solicitor General, sought to appeal the trial courts order by filing a Notice of Appeal.[3] By Order of November 22, 1999s,[4] the trial court, noting that no record of appeal was filed and served as required by and pursuant to Sec. 2(a), Rule 41 of the 1997 Rules of Civil Procedure, the present case being a special proceeding, disapproved the Notice of Appeal. The Republics Motion for Reconsideration of the trial courts order of disapproval having been denied by Order of January 13, 2000,[5] it filed a Petition for Certiorari[6] before the Court of Appeals, it contending that the declaration of presumptive death of a person under Article 41 of the Family Code is not a special proceeding or a case of multiple or separate appeals requiring a record on appeal. By Decision of May 5, 2004,[7] the Court of Appeals denied the Republics petition on procedural and substantive grounds in this wise: At the outset, it must be stressed that the petition is not sufficient in form. It failed to attach to its petition a certified true copy of

the assailed Order dated January 13, 2000 [denying its Motion for Reconsideration of the November 22, 1999 Order disapproving its Notice of Appeal]. Moreover, the petition questioned the [trial courts+ Order dated August 15, 1999, which declared Clemente Jomoc presumptively dead, likewise for having been issued with grave abuse of discretion amounting to lack of jurisdiction, yet, not even a copy could be found in the records. On this score alone, the petition should have been dismissed outright in accordance with Sec. 3, Rule 46 of the Rules of Court. However, despite the procedural lapses, the Court resolves to delve deeper into the substantive issue of the validity/nullity of the assailed order. The principal issue in this case is whether a petition for declaration of the presumptive death of a person is in the nature of a special proceeding. If it is, the period to appeal is 30 days and the party appealing must, in addition to a notice of appeal, file with the trial court a record on appeal to perfect its appeal. Otherwise, if the petition is an ordinary action, the period to appeal is 15 days from notice or decision or final order appealed from and the appeal is perfected by filing a notice of appeal (Section 3, Rule 41, Rules of Court). As defined in Section 3(a), Rule 1 of the Rules of Court, a civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention of redress of a wrong while a special proceeding under Section 3(c) of the same rule is defined as a remedy by which a party seeks to establish a status, a right or a particular fact (Heirs of Yaptinchay, et al. v. Del Rosario, et al., G.R. No. 124320, March 2, 1999). Considering the aforementioned distinction, this Court finds that the instant petition is in the nature of a special proceeding and not an ordinary action. The petition merely seeks for a declaration by the trial court of the presumptive death of absentee spouse Clemente Jomoc. It does not seek the enforcement or protection of a right or the prevention or redress of a wrong. Neither does it involve a demand of right or a cause of action that can be enforced against any person. On the basis of the foregoing discussion, the subject Order dated January 13, 2000 denying OSGs Motion for Reconsideration of the Order dated November 22, 1999 disapproving its Notice of Appeal was correctly issued. The instant petition, being in the nature of a special proceeding, OSG should have filed, in addition to its Notice of Appeal, a record

TITLE XI THIRD DIVISION [G.R. No. 163604. May 6, 2005]

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on appeal in accordance with Section 19 of the Interim Rules and Guidelines to Implement BP Blg. 129 and Section 2(a), Rule 41 of the Rules of Court . . . (Emphasis and underscoring supplied) The Republic (petitioner) insists that the declaration of presumptive death under Article 41 of the Family Code is not a special proceeding involving multiple or separate appeals where a record on appeal shall be filed and served in like manner. Petitioner cites Rule 109 of the Revised Rules of Court which enumerates the cases wherein multiple appeals are allowed and a record on appeal is required for an appeal to be perfected. The petition for the declaration of presumptive death of an absent spouse not being included in the enumeration, petitioner contends that a mere notice of appeal suffices. By Resolution of December 15, 2004,[8] this Court, noting that copy of the September 27, 2004 Resolution[9] requiring respondent to file her comment on the petition was returned unserved with postmasters notation Party refused, Resolved to consider that copy deemed served upon her. The pertinent provisions on the General Provisions on Special Proceedings, Part II of the Revised Rules of Court entitled SPECIAL PROCEEDINGS, read: RULE 72 SUBJECT MATTER APPLICABILITY OF GENERAL RULES

(m) Declaration of absence and death; (n) Cancellation or correction of entries in the civil registry. Sec. 2. Applicability of rules of civil actions. In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings. (Underscoring supplied) The pertinent provision of the Civil Code on presumption of death provides: Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. x x x (Emphasis and underscoring supplied) Upon the other hand, Article 41 of the Family Code, upon which the trial court anchored its grant of the petition for the declaration of presumptive death of the absent spouse, provides: Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouses had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouses was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose pf contracting the subsequent marriage under the preceding paragraph, the spouses present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of a reappearance of the absent spouse. (Emphasis and underscoring supplied) Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal, invoked by the trial court in disapproving petitioners Notice of Appeal, provides: Sec. 2. Modes of appeal. (a) Ordinary appeal. - The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order

appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require. In such cases, the record on appeal shall be filed and served in like manner. (Emphasis and underscoring supplied) xxx By the trial courts citation of Article 41 of the Family Code, it is gathered that the petition of Apolinaria Jomoc to have her absent spouse declared presumptively dead had for its purpose her desire to contract a valid subsequent marriage. Ergo, the petition for that purpose is a summary proceeding, following above-quoted Art. 41, paragraph 2 of the Family Code. Since Title XI of the Family Code, entitled SUMMARY JUDICIAL PROCEEDING IN THE FAMILY LAW, contains the following provision, inter alia: xxx Art. 238. Unless modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this Codes requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to technical rules. (Emphasis and underscoring supplied) x x x, there is no doubt that the petition of Apolinaria Jomoc required, and is, therefore, a summary proceeding under the Family Code, not a special proceeding under the Revised Rules of Court appeal for which calls for the filing of a Record on Appeal. It being a summary ordinary proceeding, the filing of a Notice of Appeal from the trial courts order sufficed. That the Family Code provision on repeal, Art. 254, provides as follows: Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of Republic Act No. 386, otherwise known as the Civil Code of the Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code, as amended, and all laws, decrees, executive orders, proclamations rules and regulations, or parts thereof, inconsistent therewith are hereby repealed, (Emphasis and underscoring supplied), seals the case in petitioners favor.

AND

Section 1. Subject matter of special proceedings. Rules of special proceedings are provided for in the following: (a) Settlement of estate of deceased persons; (b) Escheat; (c) Guardianship and custody of children; (d) Trustees; (e) Adoption; (f) Rescission and revocation of adoption; (g) Hospitalization of insane persons; (h) Habeas corpus; (i) Change of name; (j) Voluntary dissolution of corporations; (k) Judicial approval of voluntary recognition of minor natural children; (l) Constitution of family home;

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Finally, on the alleged procedural flaw in petitioners petition before the appellate court. Petitioners failure to attach to his petition before the appellate court a copy of the trial courts order denying its motion for reconsideration of the disapproval of its Notice of Appeal is not necessarily fatal, for the rules of procedure are not to be applied in a technical sense. Given the issue raised before it by petitioner, what the appellate court should have done was to direct petitioner to comply with the rule. As for petitioners failure to submit copy of the trial courts order granting the petition for declaration of presumptive death, contrary to the appellate courts observation that petitioner was also assailing it, petitioners 8-page petition[10] filed in said court does not so reflect, it merely having assailed the order disapproving the Notice of Appeal. WHEREFORE, the assailed May 5, 2004 Decision of the Court of Appeals is hereby REVERSED and SET ASIDE. Let the case be REMANDED to it for appropriate action in light of the foregoing discussion. SO ORDERED. Panganiban, (Chairman), SandovalGutierrez, Corona, and Garcia, JJ., concur. THIRD DIVISION [G.R. No. 160258. January 19, 2005] REPUBLIC OF THE PHILIPPINES, petitioner, vs. GLO RIA BERMUDEZLORINO, respondent.

marriage, she begot three (3) children, namely: Francis Jeno, Fria Lou and Fatima. Before they got married in 1987, Gloria was unaware that her husband was a habitual drinker, possessed with violent character/attitude, and had the propensity to go out with friends to the extent of being unable to engage in any gainful work. Because of her husbands violent character, Gloria found it safer to leave him behind and decided to go back to her parents together with her three (3) children. In order to support the children, Gloria was compelled to work abroad. From the time of her physical separation from her husband in 1991, Gloria has not heard of him at all. She had absolutely no communications with him, or with any of his relatives. On August 14, 2000, nine (9) years after she left her husband, Gloria filed a verified petition with the Regional Trial Court (RTC) at San Mateo, Rizal under the rules on Summary Judicial Proceedings in the Family Law provided for in the Family Code, which petition was docketed in the same court as Special Proceeding No. 32500 SM. On August 28, 2000, the RTC issued an order directing, inter alia, the publication of the petition in a newspaper of general circulation, thus: A verified petition was filed by herein petitioner through counsel alleging that she married Francisco Lorino, Jr. on June 12, 1987 but because of the violent character of his husband, she decided to go back to her parents and lived separately from her husband. After nine (9) years, there was absolutely no news about him and she believes that he is already dead and is now seeking through this petition for a Court declaration that her husband is judicially presumed dead for the purpose of remarriage. Finding the said petition to be sufficient in form and substance, the same is hereby set for hearing before this Court on September 18, 2000 at 8:30 oclock in the morning at which place, date and time, any or all persons who may claim any interest thereto may appear and show cause why the same should not be granted. Let a copy of this Order be published in a newspaper of general circulation in this province once a week for three (3) consecutive weeks and be posted in the bulletin boards of the Hall of Justice and the Municipal Hall, San Mateo, Rizal, all at the expense of the petitioner.

Furnish the Office of the Solicitor General a copy of this Order together with a copy of the petition. Further, send a copy of this Order to the last known address of Francisco Lorino, Jr. at 719 Burgos St., Sta. Elena, Marikina City. SO ORDERED[1] The evidence in support of the summary judicial proceeding are: the order of publication dated August 28, 2000 (Exhibit A); affidavit of publication dated September 16, 2000 (Exhibit B)[2]; copies of the newspapers where the order appeared (Exhibits C to E-1)[3]; a deposition dated September 4, 2000 of Gloria taken in Hong Kong (Exhibit G)[4]; Glorias affidavit dated October 21, 1999, also executed in Hong Kong (Exhibit G-1)[5]; and a certification by Department of Foreign Affairs Authentication Officer, Catalina C. Gonzalez, dated November 3, 1999, therein certifying that the signature of Vice Consul Adriane Bernie C. Candolada, appearing below the jurat in Glorias affidavit of October 21, 1999, is authentic (Exhibit G-2)[6]. In a decision dated November 7, 2001, the RTC, finding merit in the summary petition, rendered judgment granting the same, to wit: WHEREFORE, this Court in view of the facts and circumstances obtaining, finds the petition with merit and hereby grants its imprimatur to the petition. Judgment is hereby rendered declaring the presumptive death/absence of Francisco Lorino, Jr. pursuant to Art. 41 of the New Family Code but subject to all restrictions and conditions provided therein. SO ORDERED.[7] Despite the judgment being immediately final and executory under the provisions of Article 247 of the Family Code, thus: Art. 247. The judgment of the court shall be immediately final and executory, the Office of the Solicitor General, for the Republic of the Philippines, nevertheless filed a Notice of Appeal.[8] Acting thereon, the RTC had the records elevated to the Court of Appeals which docketed the case as CA-G.R. CV No. 73884. In a decision dated September 23, 2003, the Court of Appeals, treating the case as an ordinary appealed case under Rule 41 of the Revised Rules on Civil Procedure, denied the Republics appeal and accordingly affirmed the appealed RTC decision:

DECISION GARCIA, J.: Via this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Republic of the Philippines, represented by the Office of the Solicitor General (OSG), seeks the reversal and setting aside of the decision dated September 23, 2003 of the Court of Appeals in CA-G.R. CV No. 73884, which affirmed on appeal an earlier decision of the Regional Trial Court (RTC) at San Mateo, Rizal in a summary judicial proceeding thereat commenced by the herein respondent Gloria Bermudez-Lorino for the declaration of the presumptive death of her absent spouse, Francisco Lorino, Jr., based on the provisions of Article 41 of the Family Code, for purposes of remarriage. The facts may be summarized, as follows: Respondent Gloria Bermudez-Lorino (Gloria for brevity), and her husband were married on June 12, 1987. Out of this

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WHEREFORE, based on the foregoing premises, the instant appeal is DENIED. Accordingly, the appealed November 7, 2001 Decision of the Regional Trial Court of San Mateo, Rizal in Spec. Proc. No. 325-00 SM is hereby AFFIRMED. SO ORDERED.[9] Without filing any motion for reconsideration, petitioner Republic directly went to this Court via the instant recourse under Rule 45, maintaining that the petition raises a pure question of law that does not require prior filing of a motion for reconsideration. The foregoing factual antecedents present to this Court the following issues: WHETHER OR NOT THE COURT OF APPEALS DULY ACQUIRED JURISDICTION OVER THE APPEAL ON A FINAL AND EXECUTORY JUDGMENT OF THE REGIONAL TRIAL COURT; and WHETHER OR NOT THE FACTUAL AND LEGAL BASES FOR A JUDICIAL DECLARATION OF PRESUMPTIVE DEATH UNDER ARTICLE 41 OF THE FAMILY CODE WERE DULY ESTABLISHED IN THIS CASE. The Court rules against petitioner Republic. Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW, sets the tenor for cases covered by these rules, to wit: Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to technical rules. Judge Elizabeth Balquin-Reyes of RTC, Branch 75, San Mateo, Rizal duly complied with the above-cited provision by expeditiously rendering judgment within ninety (90) days after the formal offer of evidence by therein petitioner, Gloria Bermudez-Lorino. The problem came about when the judge gave due course to the Republics appeal upon the filing of a Notice of Appeal, and had the entire records of the case elevated to the Court of Appeals, stating in her order of December 18, 2001, as follows: Notice of Appeal having been filed through registered mail on November 22, 2001 by the Office of the Solicitor General who received a copy of the Decision in this case on November 14, 2001, within the

reglementary period fixed by the Rules, let the entire records of this case be transmitted to the Court of Appeals for further proceedings. SO ORDERED.[10] In Summary Judicial Proceedings under the Family Code, there is no reglementary period within which to perfect an appeal, precisely because judgments rendered thereunder, by express provision of Section 247, Family Code, supra, are immediately final and executory. It was erroneous, therefore, on the part of the RTC to give due course to the Republics appeal and order the transmittal of the entire records of the case to the Court of Appeals. An appellate court acquires no jurisdiction to review a judgment which, by express provision of law, is immediately final and executory. As we have said in Veloria vs. Comelec,[11] the right to appeal is not a natural right nor is it a part of due process, for it is merely a statutory privilege. Since, by express mandate of Article 247 of the Family Code, all judgments rendered in summary judicial proceedings in Family Law are immediately final and executory, the right to appeal was not granted to any of the parties therein. The Republic of the Philippines, as oppositor in the petition for declaration of presumptive death, should not be treated differently. It had no right to appeal the RTC decision of November 7, 2001. It was fortunate, though, that the Court of Appeals, acting through its Special Fourth Division, with Justice Elvi John S. Asuncion as Acting Chairman and ponente, denied the Republics appeal and affirmed without modification the final and executory judgment of the lower court. For, as we have held in Nacuray vs. NLRC:[12] Nothing is more settled in law than that when a judgment becomes final and executory it becomes immutable and unalterable. The same may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and whether made by the highest court of the land (citing Nunal v. Court of Appeals, G.R. No. 94005, 6 April 1993, 221 SCRA 26). But, if only to set the records straight and for the future guidance of the bench and the bar, let it be stated that the RTCs decision dated November 7, 2001, was immediately final and executory upon notice to the parties. It was erroneous for the OSG to file a notice of appeal, and for the RTC to give due course thereto. The Court of Appeals acquired no jurisdiction

over the case, and should have dismissed the appeal outright on that ground. This judgment of denial was elevated to this Court via a petition for review on certiorari under Rule 45. Although the result of the Court of Appeals denial of the appeal would apparently be the same, there is a big difference between having the supposed appeal dismissed for lack of jurisdiction by virtue of the fact that the RTC decision sought to be appealed is immediately final and executory, and the denial of the appeal for lack of merit. In the former, the supposed appellee can immediately ask for the issuance of an Entry of Judgment in the RTC, whereas, in the latter, the appellant can still raise the matter to this Court on petition for review and the RTC judgment cannot be executed until this Court makes the final pronouncement. The Court, therefore, finds in this case grave error on the part of both the RTC and the Court of Appeals. To stress, the Court of Appeals should have dismissed the appeal on ground of lack of jurisdiction, and reiterated the fact that the RTC decision of November 7, 2001 was immediately final and executory. As it were, the Court of Appeals committed grave reversible error when it failed to dismiss the erroneous appeal of the Republic on ground of lack of jurisdiction because, by express provision of law, the judgment was not appealable. WHEREFORE, the instant petition is hereby DENIED for lack of merit. No pronouncement as to costs. SO ORDERED. Sandoval-Gutierrez, Morales, JJ., concur. Corona, and Carpio-

Panganiban, (Chairman), J., in the result.

SURNAMES FIRST DIVISION [G.R. No. 88202. December 14, 1998] REPUBLIC OF THE PHILIPPINES, petitioner, vs. COURT OF APPEALS and CYNTHIA VICENCIO, respondents. DECISION QUISUMBING, J.: This is an appeal interposed by the Republic of the Philippines as represented by the Office of the Solicitor General (OSG), assailing the decision[1] of the Court of Appeals promulgated on April 28, 1989, which affirmed the decision[2] of the Regional Trial Court of Manila, Branch 52, dated, August 31, 1987. The appealed

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decision granted private respondent Cynthia Vicencios petition for change of surname, from Vicencio to Yu. As found by the trial court, hereunder are the facts and circumstances of the case: Petitioners evidence is to the effect that she was born on 19 January 1971 at the Capitol Medical Center, Quezon City, to the spouses Pablo Castro Vicencio and Fe Esperanza de Vega Leabres (Exh. C, also marked Annex A of Petition); that on 10 January 1972, after a marital spat, Pablo Vicencio left their conjugal abode then situated at Meycauayan, Bulacan; that since then Pablo Vicencio never reappeared nor sent support to his family and it was Ernesto Yu who had come to the aid of Fe Esperanza Labres (sic) and her children; that on 29 June 1976, Fe Esperanza Leabres filed a petition in the then Juvenile and Domestic Relations Court of Manila for dissolution of their conjugal partnership, Civil Case No. E02009, which was granted in a decision rendered by the Hon. Regina C. Ordoez Benitez on 11 July 1977 (Exhs. D, D-1 to D3); that sometime in 1983, petitioners mother filed another petition for change of name, Sp. Proc. No. 83-16346, that is to drop the surname of her husband therefrom, and after hearing a decision was rendered on 5 July 1983 by the Hon. Emeterio C. Cui of Branch XXV of this Court approving the petition (Exh. E); that in 1984, petitioners mother again filed another petition with this Court, Sp. Proc. No. 8422605, for the declaration of Pablo Vicencio as an absentee, and which petition was granted on 26 April 1984 in a decision rendered by the Hon. Corona Ibay-Somera (Exh. F & F-1); that on 15 April 1986, petitioners mother and Ernesto Yu were joined in matrimony in a ceremony solemnized by Mayor Benjamin S. Abalos of Mandaluyong, Metro Manila (Exh. G). It was also established that evern (sic) since her childhood, petitioner had not known much less remembered her real father Pablo Vicencio, and her known father had been and still is Ernesto Yu; that despite of which she had been using the family name Vicencio in her school and other related activities therein; that in view of such situation, confusion arose as to her parentage and she had been subjected to inquiries why she is using Vicencio as her family name, both by her classmates and their neighbors, causing her extreme embarrassment; that on two (2) occassions when she ran as a beauty contestant in a Lions Club affair and in a Manila Red Cross pageant, her name was entered as Cynthia L. Yu; that her step-father had been priorly consulted about this petition and had given his consent thereto; that in fact Ernesto Yu testified for petitioner and confirmed his

consent to the petition as he had always treated petitioner as his own daughter ever since.[3] At the hearing of the petition for change of name by the trial court, the OSG manifested that it was opposing the petition. It participated in the proceedings by cross-examining the private respondent Cynthia Vicencio, (petitioner a quo) and her witnesses. Disregarding the OSGs contention, the trial court ruled that there is no valid cause for denying the petition. Further, the trial court stated that it could not compel private respondents step-father to adopt her, as adoption is a voluntary act; but failure to resort to adoption should not be a cause for disallowing private respondent to legally change her name.[4] Hence, it granted the change of surname of private respondent from Vicencio to Yu. The decision of the trial court was affirmed by the appellate court, which held that it is for the best interest of petitioner that her surname be changed. The appellate court took into account the testimonies of private respondent and her witnesses that allowing the change of surname would give her an opportunity to improve her personality and welfare.[5] It likewise noted that the discrepancy between her original surname, taken from her biological father; and the surname of her step-father, who has been socially recognized as her father, caused her embarrassment and inferiority complex.[6] The main issue before us is whether the appellate court erred in affirming the trial courts decision allowing the change of private respondents surname to that of her step-fathers surname. In Republic vs. Hernandez[7], we have recognized inter alia, the following as sufficient grounds to warrant a change of name: (a) when the name is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) when the change is a legal consequence of legitimation or adoption; (c) when the change will avoid confusion; (d) when one has continuously used and been known since childhood by a Filipino name and was unaware of alien parentage; (e) when the change is based on a sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudice to anybody; and (f) when the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose, or that the change of name would prejudice public interest. Private respondent asserts that her case falls under one of the justifiable grounds aforecited. She says that confusion has arisen as to her parentage because ever

since childhood, Ernesto Yu has acted as her father, assuming duties of rearing, caring and supporting her. Since she is known in society as the daughter of Ernesto Yu, she claims that she has been subjected to inquiries regarding her use of a different surname, causing her much humiliation and embarrassment. However, it is not denied that private respondent has used Vicencio as her surname in her school records and related documents. But she had used the surname of her step-father, Yu, when she participated in public functions, such as entering beauty contests, namely, with the Lions Club and the Manila Red Cross, and when she celebrated her debut at the Manila Hotel.[8] The Solicitor General however argues that there is no proper and reasonable cause to warrant private respondents change of surname. Such change might even cause confusion and give rise to legal complications due to the fact that private respondents step-father has two (2) children with her mother. In the event of her step-fathers death, it is possible that private respondent may even claim inheritance rights as a legitimate daughter. In his memorandum, the Solicitor General, opines that Ernesto Yu has no intention of making Cynthia as an heir because despite the suggestion made before the petition for change of name was heard by the trial court that the change of family name to Yu could very easily be achieved by adoption, he has not opted for such a remedy.[9] We find merit in the Solicitor Generals contention. The touchstone for the grant of a change of name is that there be proper and reasonable cause for which the change is sought.[10] The assailed decision as affirmed by the appellate court does not persuade us to depart from the applicability of the general rule on the use of surnames[11], specifically the law which requires that legitimate children shall principally use the surname of their father[12]. Private respondent Cynthia Vicencio is the legitimate offspring of Fe Leabres and Pablo Vicencio. As previously stated, a legitimate child generally bears the surname of his or her father. It must be stressed that a change of name is a privilege, not a matter of right, addressed to the sound discretion of the court, which has the duty to consider carefully the consequences of a change of name and to deny the same unless weighty reasons are shown.[13] Confusion indeed might arise with regard to private respondents parentage because of her surname. But even, more confusion with grave legal consequences

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could arise if we allow private respondent to bear her step-fathers surname, even if she is not legally adopted by him. While previous decisions have allowed children to bear the surname of their respective stepfathers even without the benefit of adoption, these instances should be distinguished from the present case. In Calderon vs. Republic,[14] and Llaneta vs. Agrava,[15] this Court allowed the concerned child to adopt the surname of the stepfather, but unlike the situation in the present case where private respondent is a legitimate child, in those cases the children were not of legitimate parentage. In Moore vs. Republic,[16] where the circumstances appears to be similar to the present case before us, the Court upheld the Republics position: We find tenable this observation of governments counsel. Indeed, if a child born out of a lawful wedlock be allowed to bear the surname of the second husband of the mother, should the first husband die or be separated by a decree of divorce, there may result a confusion as to his real paternity. In the long run the change may redound to the prejudice of the child in the community. While the purpose which may have animated petitioner is plausible and may run along the feeling of cordiality and spiritual relationship that pervades among the members of the Moore family, our hand is deferred by a legal barrier which we cannot at present overlook or brush aside.[17] Similarly in Padilla Republic,[18] the Court ruled that: vs.

granted, could trigger much inquiries regarding her parentage.

deeper

to the Regional Trial Court (RTC) of Cebu City, Branch 57. The RTC established the following facts: Julian Lin Carulasan Wang was born in Cebu City on February 20, 1998 to parents Anna Lisa Wang and Sing-Foe Wang who were then not yet married to each other. When his parents subsequently got married on September 22, 1998, ...they executed a deed of legitimation of their son so that the childs name was changed from Julian Lin Carulasan to Julian Lin Carulasan Wang. The parents of Julian Lin Carulasan Wang plan to stay in Singapore for a long time because they will let him study there together with his sister named Wang Mei Jasmine who was born in Singapore. Since in Singapore middle names or the maiden surname of the mother are not carried in a persons name, they anticipate that Julian Lin Carulasan Wang will be discriminated against because of his current registered name which carries a middle name. Julian and his sister might also be asking whether they are brother and sister since they have different surnames. Carulasan sounds funny in Singapores Mandarin language since they do not have the letter R but if there is, they pronounce it as L. It is for these reasons that the name of Julian Lin Carulasan Wang is requested to be changed to Julian Lin Wang.[1] On 30 April 2003, the RTC rendered a decision denying the petition.[2] The trial court found that the reason given for the change of name sought in the petition that is, that petitioner Julian may be discriminated against when studies in Singapore because of his middle namedid not fall within the grounds recognized by law. The trial court ruled that the change sought is merely for the convenience of the child. Since the State has an interest in the name of a person, names cannot be changed to suit the convenience of the bearers. Under Article 174 of the Family Code, legitimate children have the right to bear the surnames of the father and the mother, and there is no reason why this right should now be taken from petitioner Julian, considering that he is still a minor. The trial court added that when petitioner Julian reaches the age of majority, he could then decide whether he will change his name by dropping his middle name.[3] Petitioner filed a motion for reconsideration of the decision but this was denied in a resolution dated 20 May 2004.[4] The trial court maintained that the Singaporean practice of not carrying a middle name does not justify the dropping of the middle name of a legitimate Filipino child who intends to study there. The

Lastly, when this case was decided by the appellate court, private respondent was already 18 years old but still considered a minor because Republic Act 6809,[20] lowering the age of majority, was then in effect. However, regardless of private respondents age, our conclusion remains considering the circumstances before us and the lack of any legally justifiable cause for allowing the change of her surname. WHEREFORE, the appealed decision is hereby REVERSED and SET ASIDE; and the instant petition is hereby GRANTED. SO ORDERED. Davide Jr., C.J. (Chairman), Vitug, and Panganiban JJ., concur. Melo, J., no part. SECOND DIVISION [G.R. No. 159966. March 30, 2005] IN RE: PETITION FOR CHANGE OF NAME AND/OR CORRECTION/CANCELLATION OF ENTRY IN CIVIL REGISTRY OF JULIAN LIN CARULASAN WANG also known as JULIAN LIN WANG, to be amended/corrected as JULIAN LIN WANG, JULIAN LIN WANG, duly represented by his mother ANNA LISA WANG, petitioner, vs. CEBU CITY CIVIL REGISTRAR, duly represented by the Registrar OSCAR B. MOLO, respondent. DECISION

To allow said minors to adopt the surname of their mothers second husband, who is not their father, could result in confusion in their paternity. It could also create the suspicion that said minors, who were born during the coverture of their mother with her first husband, were in fact sired by Edward Padilla, thus bringing their legitimate status into discredit.[19] Private respondent, might sincerely wish to be in a position similar to that of her step-fathers legitimate children, a plausible reason the petition for change of name was filed in the first place. Moreover, it is laudable that Ernesto Yu has treated Cynthia as his very own daughter, providing for all her needs as a father would his own flesh and blood. However, legal constraints lead us to reject private respondents desire to use her stepfathers surname. Further, there is no assurance the end result would not be even more detrimental to her person, for instead of bringing a stop to questions, the very change of name, if

TINGA, J.: I will not blot out his name out of the book of life. R evelation 3:5 On 22 September 2002, petitioner Julian Lin Carulasan Wang, a minor, represented by his mother Anna Lisa Wang, filed a petition dated 19 September 2002 for change of name and/or correction/cancellation of entry in the Civil Registry of Julian Lin Carulasan Wang. Petitioner sought to drop his middle name and have his registered name changed from Julian Lin Carulasan Wang to Julian Lin Wang. The petition was docketed as Special Proceedings Case No. 11458 CEB and raffled

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dropping of the middle name would be tantamount to giving due recognition to or application of the laws of Singapore instead of Philippine law which is controlling. That the change of name would not prejudice public interest or would not be for a fraudulent purpose would not suffice to grant the petition if the reason for the change of name is itself not reasonable.[5] Petitioner then filed this Petition for Review on Certiorari (Under Rule 45)[6] arguing that the trial court has decided a question of substance not theretofore determined by the Court, that is: whether or not dropping the middle name of a minor child is contrary to Article 174[7] of the Family Code. Petitioner contends that *W+ith globalization and mixed marriages, there is a need for the Supreme Court to rule on the matter of dropping of family name for a child to adjust to his new environment, for consistency and harmony among siblings, taking into consideration the best interest of the child.[8] It is argued that convenience of the child is a valid reason for changing the name as long as it will not prejudice the State and others. Petitioner points out that the middle name Carulasan will cause him undue embarrassment and the difficulty in writing or pronouncing it will be an obstacle to his social acceptance and integration in the Singaporean community. Petitioner also alleges that it is error for the trial court to have denied the petition for change of name until he had reached the age of majority for him to decide the name to use, contrary to previous cases[9] decided by this Court that allowed a minor to petition for change of name.[10] The Court required the Office of the Solicitor General (OSG) to comment on the petition. The OSG filed its Comment[11] positing that the trial court correctly denied the petition for change of name. The OSG argues that under Article 174 of the Family Code, legitimate children have the right to bear the surnames of their father and mother, and such right cannot be denied by the mere expedient of dropping the same. According to the OSG, there is also no showing that the dropping of the middle name Carulasan is in the best interest of petitioner, since mere convenience is not sufficient to support a petition for change of name and/or cancellation of entry.[12] The OSG also adds that the petitioner has not shown any compelling reason to justify the change of name or the dropping of the middle name, for that matter. Petitioners allegation that the continued use of the middle name may result in confusion and difficulty is allegedly more imaginary than real. The OSG reiterates its argument raised before the trial court that the dropping of the childs middle name could only trigger much deeper inquiries regarding the true parentage of petitioner. Hence, while

petitioner Julian has a sister named Jasmine Wei Wang, there is no confusion since both use the surname of their father, Wang. Even assuming that it is customary in Singapore to drop the middle name, it has also not been shown that the use of such middle name is actually proscribed by Singaporean law.[13] We affirm the decision of the trial court. The petition should be denied. The Court has had occasion to express the view that the State has an interest in the names borne by individuals and entities for purposes of identification, and that a change of name is a privilege and not a right, so that before a person can be authorized to change his name given him either in his certificate of birth or civil registry, he must show proper or reasonable cause, or any compelling reason which may justify such change. Otherwise, the request should be denied.[14] The touchstone for the grant of a change of name is that there be proper and reasonable cause for which the change is sought.[15] To justify a request for change of name, petitioner must show not only some proper or compelling reason therefore but also that he will be prejudiced by the use of his true and official name. Among the grounds for change of name which have been held valid are: (a) when the name is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) when the change results as a legal consequence, as in legitimation; (c) when the change will avoid confusion; (d) when one has continuously used and been known since childhood by a Filipino name, and was unaware of alien parentage; (e) a sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; and (f) when the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would prejudice public interest.[16] In granting or denying petitions for change of name, the question of proper and reasonable cause is left to the sound discretion of the court. The evidence presented need only be satisfactory to the court and not all the best evidence available. What is involved is not a mere matter of allowance or disallowance of the request, but a judicious evaluation of the sufficiency and propriety of the justifications advanced in support thereof, mindful of the consequent results in the event of its grant and with the sole prerogative for making such determination being lodged in the courts.[17] The petition before us is unlike other petitions for change of name, as it does not simply seek to change the name of the

minor petitioner and adopt another, but instead seeks to drop the middle name altogether. Decided cases in this jurisdiction involving petitions for change of name usually deal with requests for change of surname. There are only a handful of cases involving requests for change of the given name[18] and none on requests for changing or dropping of the middle name. Does the law allow one to drop the middle name from his registered name? We have to answer in the negative. A discussion on the legal significance of a persons name is relevant at this point. We quote, thus: For all practical and legal purposes, a man's name is the designation by which he is known and called in the community in which he lives and is best known. It is defined as the word or combination of words by which a person is distinguished from other individuals and, also, as the label or appellation which he bears for the convenience of the world at large addressing him, or in speaking of or dealing with him. Names are used merely as one method of indicating the identity of persons; they are descriptive of persons for identification, since, the identity is the essential thing and it has frequently been held that, when identity is certain, a variance in, or misspelling of, the name is immaterial. The names of individuals usually have two parts: the given name or proper name, and the surname or family name. The given or proper name is that which is given to the individual at birth or baptism, to distinguish him from other individuals. The name or family name is that which identifies the family to which he belongs and is continued from parent to child. The given name may be freely selected by the parents for the child; but the surname to which the child is entitled is fixed by law. A name is said to have the following characteristics: (1) It is absolute, intended to protect the individual from being confused with others. (2) It is obligatory in certain respects, for nobody can be without a name. (3) It is fixed, unchangeable, or immutable, at least at the start, and may be changed only for good cause and by judicial proceedings. (4) It is outside the commerce of man, and, therefore, inalienable and intransmissible by act inter vivos or mortis causa. (5) It is imprescriptible.[19] This citation does not make any reference to middle names, but this does not mean that middle names have no practical or legal significance. Middle names serve to identify the maternal lineage or filiation of a person as well as further distinguish him from others who

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may have the same given name and surname as he has. Our laws on the use of surnames state that legitimate and legitimated children shall principally use the surname of the father.[20] The Family Code gives legitimate children the right to bear the surnames of the father and the mother,[21] while illegitimate children shall use the surname**e of their mother, unless their father recognizes their filiation, in which case they may bear the fathers surname.[22] Applying these laws, an illegitimate child whose filiation is not recognized by the father bears only a given name and his mothers surname, and does not have a middle name. The name of the unrecognized illegitimate child therefore identifies him as such. It is only when the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the father in a public document or private handwritten instrument that he bears both his mothers surname as his middle name and his fathers surname as his surname, reflecting his status as a legitimated child or an acknowledged illegitimate child. Accordingly, the registration in the civil registry of the birth of such individuals requires that the middle name be indicated in the certificate. The registered name of a legitimate, legitimated and recognized illegitimate child thus contains a given or proper name, a middle name, and a surname. Petitioner theorizes that it would be for his best interest to drop his middle name as this would help him to adjust more easily to and integrate himself into Singaporean society. In support, he cites Oshita v. Republic[23] and Calderon v. Republic,[24] which, however, are not apropos both. In Oshita, the petitioner therein, a legitimate daughter of a Filipino mother, Buena Bartolome, and a Japanese father, Kishimatsu Oshita, sought to change her name from Antonina B. Oshita to Antonina Bartolome. The Court granted her petition based on the following considerations: she had elected Philippine citizenship upon reaching the age of majority; her other siblings who had also elected Philippine citizenship have been using their mothers surname; she was embarrassed to bear a Japanese surname there still being ill feeling against the Japanese due to the last World War; and there was no showing that the change of name was motivated by a fraudulent purpose or that it will prejudice public interest. In Calderon, the Court allowed petitioner Gertrudes Josefina del Prado, an illegitimate minor child acting through her

mother who filed the petition in her behalf, to change her name to Gertudes Josefina Calderon, taking the surname of her stepfather, Romeo C. Calderon, her mothers husband. The Court held that a petition for change of name of an infant should be granted where to do is clearly for the best interest of the child. The Court took into consideration the opportunity provided for the minor petitioner to eliminate the stigma of illegitimacy which she would carry if she continued to use the surname of her illegitimate father. The Court pronounced that justice dictates that every person be allowed to avail of any opportunity to improve his social standing as long as doing so he does not cause prejudice or injury to the interests of the State or of other people. Petitioner cites Alfon v. Republic,[25] in arguing that although Article 174 of the Family Code gives the legitimate child the right to use the surnames of the father and the mother, it is not mandatory such that the child could use only one family name, even the family name of the mother. In Alfon, the petitioner therein, the legitimate daughter of Filomeno Duterte and Estrella Alfon, sought to change her name from Maria Estrella Veronica Primitiva Duterte (her name as registered in the Local Civil Registry) to Estrella S. Alfon (the name she had been using since childhood, in her school records and in her voters registration). The trial court denied her petition but this Court overturned the denial, ruling that while Article 364 of the Civil Code states that she, as a legitimate child, should principally use the surname of her father, there is no legal obstacle for her to choose to use the surname of herm other to which she is entitled. In addition, the Court found that there was ample justification to grant her petition, i.e., to avoid confusion. Weighing petitioners reason of convenience for the change of his name against the standards set in the cases he cites to support his contention would show that his justification is amorphous, to say the least, and could not warrant favorable action on his petition. The factual antecedents and unique circumstances of the cited cases are not at all analogous to the case at bar. The instant case is clearly distinguishable from the cases of Oshita and Alfon, where the petitioners were already of age when they filed their petitions for change of name. Being of age, they are considered to have exercised their discretion and judgment, fully knowing the effects of their decision to change their surnames. It can also be unmistakably observed that the reason for the grant of the petitions for change of name in these two cases was the presence of reasonable or compelling grounds therefore. The Court, in Oshita, recognized

the tangible animosity most Filipinos had during that time against the Japanese as a result of World War II, in addition to the fact of therein petitioners election of Philippine citizenship. In Alfon, the Court granted the petition since the petitioner had been known since childhood by a name different from her registered name and she had not used her registered name in her school records and voters registration records; thus, denying the petition would only result to confusion. Calderon, on the other hand, granted the petition for change of name filed by a mother in behalf of her illegitimate minor child. Petitioner cites this case to buttress his argument that he does not have to reach the age of majority to petition for change of name. However, it is manifest in Calderon that the Court, in granting the petition for change of name, gave paramount consideration to the best interests of the minor petitioner therein. In the case at bar, the only reason advanced by petitioner for the dropping his middle name is convenience. However, how such change of name would make his integration into Singaporean society easier and convenient is not clearly established. That the continued use of his middle name would cause confusion and difficulty does not constitute proper and reasonable cause to drop it from his registered complete name. In addition, petitioner is only a minor. Considering the nebulous foundation on which his petition for change of name is based, it is best that the matter of change of his name be left to his judgment and discretion when he reaches the age of majority.[26] As he is of tender age, he may not yet understand and appreciate the value of the change of his name and granting of the same at this point may just prejudice him in his rights under our laws. WHEREFORE, in view of the foregoing, the Petition for Review on Certiorari is DENIED. SO ORDERED. Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Chico-Nazario, JJ., concur.

THIRD DIVISION [G.R. No. 148311. March 31, 2005] IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA HONORATO B. CATINDIG, petitioner. DECISION SANDOVAL-GUTIERREZ, J.:

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May an illegitimate child, upon adoption by her natural father, use the surname of her natural mother as her middle name? This is the issue raised in the instant case. The facts are undisputed. On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition[1] to adopt his minor illegitimate child Stephanie Nathy Astorga Garcia. He alleged therein, among others, that Stephanie was born on June 26, 1994;[2] that her mother is Gemma Astorga Garcia; that Stephanie has been using her mothers middle name and surname; and that he is now a widower and qualified to be her adopting parent. He prayed that Stephanies middle name Astorga be changed to Garcia, her mothers surname, and that her surname Garcia be changed to Catindig, his surname. On March 23, 2001,[3] the trial court rendered the assailed Decision granting the adoption, thus: After a careful consideration of the evidence presented by the petitioner, and in the absence of any opposition to the petition, this Court finds that the petitioner possesses all the qualifications and none of the disqualification provided for by law as an adoptive parent, and that as such he is qualified to maintain, care for and educate the child to be adopted; that the grant of this petition would redound to the best interest and welfare of the minor Stephanie Nathy Astorga Garcia. The Court further holds that the petitioners care and custody of the child since her birth up to the present constitute more than enough compliance with the requirement of Article 35 of Presidential Decree No. 603. WHEREFORE, finding the petition to be meritorious, the same is GRANTED. Henceforth, Stephanie Nathy Astorga Garcia is hereby freed from all obligations of obedience and maintenance with respect to her natural mother, and for civil purposes, shall henceforth be the petitioners legitimate child and legal heir. Pursuant to Article 189 of the Family Code of the Philippines, the minor shall be known as STEPHANIE NATHY CATINDIG. Upon finality of this Decision, let the same be entered in the Local Civil Registrar concerned pursuant to Rule 99 of the Rules of Court. Let copy of this Decision be furnished the National Statistics Office for record purposes. SO ORDERED.[4]

On April 20, 2001, petitioner filed a motion for clarification and/or reconsideration[5] praying that Stephanie should be allowed to use the surname of her natural mother (GARCIA) as her middle name. On May 28, 2001,[6] the trial court denied petitioners motion for reconsideration holding that there is no law or jurisprudence allowing an adopted child to use the surname of his biological mother as his middle name. Hence, the present petition raising the issue of whether an illegitimate child may use the surname of her mother as her middle name when she is subsequently adopted by her natural father. Petitioner submits that the trial court erred in depriving Stephanie of a middle name as a consequence of adoption because: (1) there is no law prohibiting an adopted child from having a middle name in case there is only one adopting parent; (2) it is customary for every Filipino to have as middle name the surname of the mother; (3) the middle name or initial is a part of the name of a person; (4) adoption is for the benefit and best interest of the adopted child, hence, her right to bear a proper name should not be violated; (5) permitting Stephanie to use the middle name Garcia (her mothers surname) avoids the stigma of her illegitimacy; and; (6) her continued use of Garcia as her middle name is not opposed by either the Catindig or Garcia families. The Republic, through the Office of the Solicitor General (OSG), agrees with petitioner that Stephanie should be permitted to use, as her middle name, the surname of her natural mother for the following reasons: First, it is necessary to preserve and maintain Stephanies filiation with her natural mother because under Article 189 of the Family Code, she remains to be an intestate heir of the latter. Thus, to prevent any confusion and needless hardship in the future, her relationship or proof of that relationship with her natural mother should be maintained. Second, there is no law expressly prohibiting Stephanie to use the surname of her natural mother as her middle name. What the law does not prohibit, it allows. Last, it is customary for every Filipino to have a middle name, which is ordinarily the surname of the mother. This custom has been recognized by the Civil Code and Family Code. In fact, the Family Law Committees agreed that the initial or surname of the mother should immediately precede the surname of the father so that the second name, if any, will be before the surname of the mother.[7]

We find merit in the petition.

Use Of Surname Is Fixed By Law

For all practical and legal purposes, a man's name is the designation by which he is known and called in the community in which he lives and is best known. It is defined as the word or combination of words by which a person is distinguished from other individuals and, also, as the label or appellation which he bears for the convenience of the world at large addressing him, or in speaking of or dealing with him.[8] It is both of personal as well as public interest that every person must have a name. The name of an individual has two parts: (1) the given or proper name and (2) the surname or family name. The given or proper name is that which is given to the individual at birth or at baptism, to distinguish him from other individuals. The surname or family name is that which identifies the family to which he belongs and is continued from parent to child. The given name may be freely selected by the parents for the child, but the surname to which the child is entitled is fixed by law.[9] Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which regulate the use of surname[10] of an individual whatever may be his status in life, i.e., whether he may be legitimate or illegitimate, an adopted child, a married woman or a previously married woman, or a widow, thus: Art. 364. Legitimate and legitimated children shall principally use the surname of the father. Art. 365. An adopted child shall bear the surname of the adopter. xxx Art. 369. Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father. Art. 370. A married woman may use: (1) Her maiden first name and surname and add her husband's surname, or (2) Her maiden first name and her husband's surname or (3) Her husband's full name, but prefixing a word indicating that she is his wife, such as Mrs.

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Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name and surname. If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to continue employing her former husband's surname, unless: (1) The court decrees otherwise, or (2) She or the former husband is married again to another person. Art. 372. When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation. Art. 373. A widow may use the deceased husband's surname as though he were still living, in accordance with Article 370. Art. 374. In case of identity of names and surnames, the younger person shall be obliged to use such additional name or surname as will avoid confusion. Art. 375. In case of identity of names and surnames between ascendants and descendants, the word Junior can be used only by a son. Grandsons and other direct male descendants shall either: (1) Add a middle name or the mother's surname, (2) Add the Roman numerals II, III, and so on. x x x Law Is Silent As To The Use Of Middle Name As correctly submitted by both parties, there is no law regulating the use of a middle name. Even Article 176[11] of the Family Code, as amended by Republic Act No. 9255, otherwise known as An Act Allowing Illegitimate Children To Use The Surname Of Their Father, is silent as to what middle name a child may use. The middle name or the mothers surname is only considered in Article 375(1), quoted above, in case there is identity of names and surnames between ascendants and descendants, in which case, the middle name or the mothers surname shall be added. Notably, the law is likewise silent as to what middle name an adoptee may use. Article 365 of the Civil Code merely provides that an adopted child shall bear the surname of the adopter. Also, Article 189 of the Family Code, enumerating the

legal effects of adoption, is likewise silent on the matter, thus: "(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including theright of the adopted to use the surname of the adopters; x x x However, as correctly pointed out by the OSG, the members of the Civil Code and Family Law Committees that drafted the Family Code recognized the Filipino custom of adding the surname of the childs mother as his middle name. In the Minutes of the Joint Meeting of the Civil Code and Family Law Committees, the members approved the suggestion that the initial or surname of the mother should immediately precede the surname of the father, thus Justice Caguioa commented that there is a difference between the use by the wife of the surname and that of the child because the fathers surname indicates the family to which he belongs, for which reason he would insist on the use of the fathers surname by the child but that, if he wants to, the child may also use the surname of the mother. Justice Puno posed the question: If the child chooses to use the surname of the mother, how will his name be written? Justice Caguioa replied that it is up to him but that his point is that it should be mandatory that the child uses the surname of the father and permissive in the case of the surname of the mother. Prof. Baviera remarked that Justice Caguioas point is covered by the present Article 364, which reads: Legitimate and legitimated children shall principally use the surname of the father. Justice Puno pointed out that many names change through no choice of the person himself precisely because of this misunderstanding. He then cited the following example: Alfonso Ponce Enriles correct surname is Ponce since the mothers surname is Enrile but everybody calls him Atty. Enrile. Justice Jose Gutierrez Davids family name is Gutierrez and his mothers surname is David but they all call him Justice David. Justice Caguioa suggested that the proposed Article (12) be modified to the

effect that it shall be mandatory on the child to use the surname of the father but he may use the surname of the mother by way of an initial or a middle name. Prof. Balane stated that they take note of this for inclusion in the Chapter on Use of Surnames since in the proposed Article (10) they are just enumerating the rights of legitimate children so that the details can be covered in the appropriate chapter. xxx Justice Puno remarked that there is logic in the simplification suggested by Justice Caguioa that the surname of the father should always be last because there are so many traditions like the American tradition where they like to use their second given name and the Latin tradition, which is also followed by the Chinese wherein they even include the Clan name. xxx Justice Puno suggested that they agree in principle that in the Chapter on the Use of Surnames, they should say that initial or surname of the mother should immediately precede the surname of the father so that the second name, if any, will be before the surname of the mother. Prof. Balane added that this is really the Filipino way. The Committee approved the suggestion.[12] (Emphasis supplied) In the case of an adopted child, the law provides that the adopted shall bear the surname of the adopters.[13] Again, it is silent whether he can use a middle name. What it only expressly allows, as a matter of right and obligation, is for the adoptee to bear the surname of the adopter, upon issuance of the decree of adoption.[14] The Underlying Intent of Adoption Is In Favor of the Adopted Child Adoption is defined as the process of making a child, whether related or not to the adopter, possess in general, the rights accorded to a legitimate child.[15] It is a juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation.[16] The modern trend is to consider adoption not merely as an act to establish a relationship of paternity and filiation, but also as an act which endows the child with a legitimate status.[17] This was, indeed, confirmed in 1989, when the Philippines, as a State Party to the Convention of the Rights of the Child initiated by the United Nations, accepted the principle that adoption is impressed with social and moral responsibility, and that its underlying intent is geared to favor

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the adopted child.[18] Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998,[19] secures these rights and privileges for the adopted.[20] One of the effects of adoption is that the adopted is deemed to be a legitimate child of the adopter for all intents and purposes pursuant to Article 189[21] of the Family Code and Section 17[22] Article V of RA 8552.[23] Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the rights provided by law to a legitimate child without discrimination of any kind, including the right to bear the surname of her father and her mother, as discussed above. This is consistent with the intention of the members of the Civil Code and Family Law Committees as earlier discussed. In fact, it is a Filipino custom that the initial or surname of the mother should immediately precede the surname of the father. Additionally, as aptly stated by both parties, Stephanies continued use of her mothers surname (Garcia) as her middle name will maintain her maternal lineage. It is to be noted that Article 189(3) of the Family Code and Section 18[24], Article V of RA 8552 (law on adoption) provide that the adoptee remains an intestate heir of his/her biological parent. Hence, Stephanie can well assert or claim her hereditary rights from her natural mother in the future. Moreover, records show that Stephanie and her mother are living together in the house built by petitioner for them at 390 Tumana, San Jose, Baliuag, Bulacan. Petitioner provides for all their needs. Stephanie is closely attached to both her mother and father. She calls them Mama and Papa. Indeed, they are one normal happy family. Hence, to allow Stephanie to use her mothers surname as her middle name will not only sustain her continued loving relationship with her mother but will also eliminate the stigma of her illegitimacy. Liberal Construction of Adoption Statutes In Favor Of Adoption It is a settled rule that adoption statutes, being humane and salutary, should be liberally construed to carry out the beneficent purposes of adoption.[25] The interests and welfare of the adopted child are of primary and paramount consideration,[26] hence, every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law.[27] Lastly, Art. 10 of the New Civil Code provides that:

In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail. This provision, according to the Code Commission, is necessary so that it may tip the scales in favor of right and justice when the law is doubtful or obscure. It will strengthen the determination of the courts to avoid an injustice which may apparently be authorized by some way of interpreting the law.[28] Hence, since there is no law prohibiting an illegitimate child adopted by her natural father, like Stephanie, to use, as middle name her mothers surname, we find no reason why she should not be allowed to do so. WHEREFORE, the petition is GRANTED. The assailed Decision is partly MODIFIED in the sense that Stephanie should be allowed to use her mothers surname GARCIA as her middle name. Let the corresponding entry of her correct and complete name be entered in the decree of adoption. SO ORDERED. Panganiban, (Chairman), Corona, Carpio-Morales, and Garcia, JJ., concur. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 157043 February 2, 2007

xxx xxx xxx 1. [Respondent] is a Filipino citizen, of legal age, married, while minor GIOVANNI N. GALLAMASO, is also a Filipino citizen, sixteen (16) years old and both are residents of San Juan, Southern Leyte where they can be served with summons and other court processes; 2. [Respondent] was appointed guardian [ad litem] of minor Giovanni N. Gallamaso by virtue of a court order in Special [Proc.] No. R-459, dated [August 18, 1998] xxx xxx authorizing her to file in court a petition for change of name of said minor in accordance with the desire of his mother [who is residing and working abroad]; 3. Both [respondent] and minor have permanently resided in San Juan, Southern Leyte, Philippines for more than fifteen (15) years prior to the filing of this instant petition, the former since 1970 while the latter since his birth [in 1982]; 4. The minor was left under the care of [respondent] since he was yet nine (9) years old up to the present; 5. Minor GIOVANNI N. GALLAMASO is the illegitimate natural child of Corazon P. Nadores and Diosdado Gallamaso. [He] was born on July 9, 1982 [,] prior to the effectivity of the New Family Code and as such, his mother used the surname of the natural father despite the absence of marriage between them; and [Giovanni] has been known by that name since birth [as per his birth certificate registered at the Local Civil Register of San Juan, Southern Leyte]; 6. The father, Diosdado Gallamaso, from the time [Giovanni] was born and up to the present, failed to take up his responsibilities [to him] on matters of financial, physical, emotional and spiritual concerns. [Giovannis pleas+ for attention along that line [fell] on deaf ears xxx xxx xxx;

REPUBLIC OF THE PHILIPPINES, Petitioner, vs. TRINIDAD R.A. CAPOTE, Respondent. DECISION CORONA, J.: This petition for review on certiorari1 seeks to set aside the Court of Appeals (CA) decision2 dated January 13, 2003 in CA-G.R. CV No. 66128, which affirmed the decision of the Regional Trial Court (RTC), Branch 23 of San Juan, Southern Leyte dated September 14, 1999 granting a petition for change of name. Respondent Trinidad R. A. Capote filed a petition for change of name of her ward from Giovanni N. Gallamaso toGiovanni Nadores on September 9, 1998. In Special Proceeding No. R-481,3 Capote as Giovannis guardian ad litem averred:

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7. [Giovanni] is now fully aware of how he stands with his father and he desires to have his surname changed to that of his mothers surname; 8. *Giovannis+ mother might eventually petition [him] to join her in the United States and [his] continued use of the surname Gallamaso, the surname of his natural father, may complicate [his] status as natural child; and 9. The change of name [from] GIOVANNI N. GALLAMASO to GIOVANNI NADORES will be for the benefit of the minor. xxx xxx xxx4 Respondent prayed for an order directing the local civil registrar to effect the change of name on Giovannis birth certificate. Having found respondents petition sufficient in form and substance, the trial court gave due course to the petition.5 Publication of the petition in a newspaper of general circulation in the province of Southern Leyte once a week for three consecutive weeks was likewise ordered.6 The trial court also directed that the local civil registrar be notified and that the Office of the Solicitor General (OSG) be sent a copy of the petition and order.7 Since there was no opposition to the petition, respondent moved for leave of court to present her evidence ex parte before a court-appointed commissioner. The OSG, acting through the Provincial Prosecutor, did not object; hence, the lower court granted the motion. After the reception of evidence, the trial court rendered a decision ordering the change of name from Giovanni N. Gallamaso to Giovanni Nadores.8 From this decision, petitioner Republic of the Philippines, through the OSG, filed an appeal with a lone assignment of error: the court a quo erred in granting the petition in a summary proceeding. Ruling that the proceedings were sufficiently adversarial in nature as required, the CA affirmed the RTC decision ordering the change of name.9 In this petition, the Republic contends that the CA erred in affirming the trial courts decision which granted the petition for change of name despite the non-joinder of indispensable parties.10 Petitioner cites Republic of the Philippines v.

Labrador11 and claims that the purported parents and all other persons who may be adversely affected by the childs change of name should have been made respondents to make the proceeding adversarial.12 We deny the petition. "The subject of rights must have a fixed symbol for individualization which serves to distinguish him from all others; this symbol is his name."13 Understandably, therefore, no person can change his name or surname without judicial authority.14 This is a reasonable requirement for those seeking such change because a persons name necessarily affects his identity, interests and interactions. The State must be involved in the process and decision to change the name of any of its citizens. The Rules of Court provides the requirements and procedure for change of name. Here, the appropriate remedy is covered by Rule 103,15 a separate and distinct proceeding from Rule 108 on mere cancellation and correction of entries in the civil registry (usually dealing only with innocuous or clerical errors thereon).16 The issue of non-joinder of alleged indispensable parties in the action before the court a quo is intertwined with the nature of the proceedings there. The point is whether the proceedings were sufficiently adversarial. Summary proceedings do not extensively address the issues of a case since the reason for their conduct is expediency. This, according to petitioner, is not sufficient to deal with substantial or contentious issues allegedly resulting from a change of name, meaning, legitimacy as well as successional rights.17 Such issues are ventilated only in adversarial proceedings wherein all interested parties are impleaded and due process is observed.18 When Giovanni was born in 1982 (prior to the enactment and effectivity of the Family Code of the Philippines),19the pertinent provision of the Civil Code then as regards his use of a surname, read: Art. 366. A natural child acknowledged by both parents shall principally use the surname of the father. If recognized by only one of the parents, a natural child shall employ the surname of the recognizing parent. (emphasis ours) Based on this provision, Giovanni should have carried his mothers surname from birth. The records do not reveal any act or intention on the part of Giovannis putative father to actually recognize him.

Meanwhile, according to the Family Code which repealed, among others, Article 366 of the Civil Code: Art. 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. xxx xxx xxx (emphasis ours) Our ruling in the recent case of In Re: Petition for Change of Name and/or Correction/Cancellation of Entry in Civil Registry of Julian Lin Carulasan Wang20 is enlightening: Our laws on the use of surnames state that legitimate and legitimated children shall principally use the surname of the father. The Family Code gives legitimate children the right to bear the surnames of the father and the mother, while illegitimate children shall use the surname of their mother, unless their father recognizes their filiation, in which case they may bear the fathers surname. Applying these laws, an illegitimate child whose filiation is not recognized by the father bears only a given name and his mother surname, and does not have a middle name. The name of the unrecognized illegitimate child therefore identifies him as such. It is only when the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the father in a public document or private handwritten instrument that he bears both his mothers surname as his middle name and his fathers surname as his surname, reflecting his status as a legitimated child or an acknowledged child.1awphi1.net21 The foregoing discussion establishes the significant connection of a persons name to his identity, his status in relation to his parents and his successional rights as a legitimate or illegitimate child. For sure, these matters should not be taken lightly as to deprive those who may, in any way, be affected by the right to present evidence in favor of or against such change. The law and facts obtaining here favor Giovannis petition. Giovanni availed of the proper remedy, a petition for change of name under Rule 103 of the Rules of Court, and complied with all the procedural requirements. After hearing, the trial court found (and the appellate court affirmed) that the evidence presented during the hearing of Giovannis petition sufficiently established that, under Art. 176 of the Civil Code, Giovanni is entitled to change his name as he was never recognized by his father while his mother has always

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recognized him as her child. A change of name will erase the impression that he was ever recognized by his father. It is also to his best interest as it will facilitate his mothers intended petition to have him join her in the United States. This Court will not stand in the way of the reunification of mother and son. Moreover, it is noteworthy that the cases cited by petitioner22 in support of its position deal with cancellation or correction of entries in the civil registry, a proceeding separate and distinct from the special proceedings for change of name. Those cases deal with the application and interpretation of Rule 108 of the Rules of Court while this case was correctly filed under Rule 103. Thus, the cases cited by petitioner are irrelevant and have no bearing on respondents case. While the OSG is correct in its stance that the proceedings for change of name should be adversarial, the OSG cannot void the proceedings in the trial court on account of its own failure to participate therein. As the CA correctly ruled: The OSG is correct in stating that a petition for change of name must be heard in an adversarial proceeding. Unlike petitions for the cancellation or correction of clerical errors in entries in the civil registry under Rule 108 of the Rules of Court, a petition for change of name under Rule 103 cannot be decided through a summary proceeding. There is no doubt that this petition does not fall under Rule 108 for it is not alleged that the entry in the civil registry suffers from clerical or typographical errors. The relief sought clearly goes beyond correcting erroneous entries in the civil registry, although by granting the petition, the result is the same in that a corresponding change in the entry is also required to reflect the change in name. In this regard, [appellee] Capote complied with the requirement for an adversarial proceeding by posting in a newspaper of general circulation notice of the filing of the petition. The lower court also furnished the OSG a copy thereof. Despite the notice, no one came forward to oppose the petition including the OSG. The fact that no one opposed the petition did not deprive the court of its jurisdiction to hear the same nor does it make the proceeding less adversarial in nature. The lower court is still expected to exercise its judgment to determine whether the petition is meritorious or not and not merely accept as true the arguments propounded. Considering that the OSG neither opposed the petition nor the motion to present its evidence ex parte when it had the opportunity to do so, it cannot now complain that the proceedings in the lower court were not adversarial enough.23 (emphasis supplied)

A proceeding is adversarial where the party seeking relief has given legal warning to the other party and afforded the latter an opportunity to contest it.24 Respondent gave notice of the petition through publication as required by the rules.25 With this, all interested parties were deemed notified and the whole world considered bound by the judgment therein. In addition, the trial court gave due notice to the OSG by serving a copy of the petition on it. Thus, all the requirements to make a proceeding adversarial were satisfied when all interested parties, including petitioner as represented by the OSG, were afforded the opportunity to contest the petition. WHEREFORE, the petition is hereby DENIED and the January 13, 2003 decision of the Court of Appeals in CA-G.R. CV No. 66128 AFFIRMED. SO ORDERED. RENATO C. CORONA Associate Justice Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 169202 March 5, 2010

her passport: "Rallonza" as her surname, "Maria Virginia" as her given name, and "Remo" as her middle name. Prior to the expiry of the validity of her passport, petitioner, whose marriage still subsists, applied for the renewal of her passport with the Department of Foreign Affairs (DFA) office in Chicago, Illinois, U.S.A., with a request to revert to her maiden name and surname in the replacement passport. Petitioners request having been denied, Atty. Manuel Joseph R. Bretana III, representing petitioner, wrote then Secretary of Foreign Affairs Domingo Siason expressing a similar request. On 28 August 2000, the DFA, through Assistant Secretary Belen F. Anota, denied the request, stating thus: This has reference to your letter dated 17 August 2000 regarding one Ms. Maria Virginia V. Remo who is applying for renewal of her passport using her maiden name. This Office is cognizant of the provision in the law that it is not obligatory for a married woman to use her husbands name. Use of maiden name is allowed in passport application only if the married name has not been used in previous application. The Implementing Rules and Regulations for Philippine Passport Act of 1996 clearly defines the conditions when a woman applicant may revert to her maiden name, that is, only in cases of annulment of marriage, divorce and death of the husband. Ms. Remos case does not meet any of these conditions.4(Emphasis supplied) Petitioners motion for reconsideration of the above-letter resolution was denied in a letter dated 13 October 2000.5

MARIA VIRGINIA V. REMO, Petitioner, vs. THE HONORABLE SECRETARY OF FOREIGN AFFAIRS, Respondent. DECISION CARPIO, J.: The Case Before the Court is a petition for review1 of the 27 May 2005 Decision2 and 2 August 2005 Resolution3 of the Court of Appeals in CA-G.R. SP No. 87710. The Court of Appeals affirmed the decision of the Office of the President, which in turn affirmed the decision of the Secretary of Foreign Affairs denying petitioners request to revert to the use of her maiden name in her replacement passport. The Facts Petitioner Maria Virginia V. Remo is a married Filipino citizen whose Philippine passport was then expiring on 27 October 2000. Petitioner being married to Francisco R. Rallonza, the following entries appear in

On 15 November 2000, petitioner filed an appeal with the Office of the President. On 27 July 2004, the Office of the President dismissed the appeal6 and ruled that Section 5(d) of Republic Act No. 8239 (RA 8239) or the Philippine Passport Act of 1996 "offers no leeway for any other interpretation than that only in case of divorce, annulment, or declaration [of nullity] of marriage may a married woman revert to her maiden name for passport purposes." The Office of the President further held that in case of conflict between a general and special law, the latter will control the former regardless of the respective dates of passage. Since the Civil Code is a general law, it should yield to RA 8239.

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On 28 October 2004, the Office of the President denied the motion for reconsideration.7 Petitioner filed with the Court of Appeals a petition for review under Rule 43 of the Rules of Civil Procedure. In its Decision of 27 May 2005, the Court of Appeals denied the petition and affirmed the ruling of the Office of the President. The dispositive portion of the Court of Appeals decision reads: WHEREFORE, premises considered, the petition is DENIED, and the resolution dated July 27, 2004, and the order dated October 28, 2004 of the Office of the President in O.P. Case No. 001-A-9344 are hereby AFFIRMED. SO ORDERED.8 Petitioner moved for reconsideration which the Court of Appeals denied in its Resolution dated 2 August 2005. Hence, this petition. The Court of Appeals Ruling The Court of Appeals found no conflict between Article 370 of the Civil Code9 and Section 5(d) of RA 8239.10 The Court of Appeals held that for passport application and issuance purposes, RA 8239 limits the instances when a married woman applicant may exercise the option to revert to the use of her maiden name such as in a case of a divorce decree, annulment or declaration of nullity of marriage. Since there was no showing that petitioner's marriage to Francisco Rallonza has been annulled, declared void or a divorce decree has been granted to them, petitioner cannot simply revert to her maiden name in the replacement passport after she had adopted her husbands surname in her old passport. Hence, according to the Court of Appeals, respondent was justified in refusing the request of petitioner to revert to her maiden name in the replacement passport.1avvphi1 The Issue The sole issue in this case is whether petitioner, who originally used her husbands surname in her expired passport, can revert to the use of her maiden name in the replacement passport, despite the subsistence of her marriage. The Ruling of the Court

The petition lacks merit. Title XIII of the Civil Code governs the use of surnames. In the case of a married woman, Article 370 of the Civil Code provides: ART. 370. A married woman may use: (1) Her maiden first name and surname and add her husbands surname, or (2) Her maiden first name and her husband's surname, or (3) Her husbands full name, but prefixing a word indicating that she is his wife, such as "Mrs." We agree with petitioner that the use of the word "may" in the above provision indicates that the use of the husbands surname by the wife is permissive rather than obligatory. This has been settled in the case of Yasin v. Honorable Judge Sharia District Court.11 In Yasin,12 petitioner therein filed with the Sharia District Court a "Petition to resume the use of maiden name" in view of the dissolution of her marriage by divorce under the Code of Muslim Personal Laws of the Philippines, and after marriage of her former husband to another woman. In ruling in favor of petitioner therein, the Court explained that: When a woman marries a man, she need not apply and/or seek judicial authority to use her husbands name by prefixing the word "Mrs." before her husbands full name or by adding her husbands surname to her maiden first name. The law grants her such right (Art. 370, Civil Code). Similarly, when the marriage ties or vinculum no longer exists as in the case of death of the husband or divorce as authorized by the Muslim Code, the widow or divorcee need not seek judicial confirmation of the change in her civil status in order to revert to her maiden name as use of her former husbands is optional and not obligatory for her (Tolentino, Civil Code, p. 725, 1983 ed.; Art. 373, Civil Code). When petitioner married her husband, she did not change her but only her civil status. Neither was she required to secure judicial authority to use the surname of her husband after the marriage as no law requires it. (Emphasis supplied) Clearly, a married woman has an option, but not a duty, to use the surname of the husband in any of the ways provided by Article 370 of the Civil Code.13 She is therefore allowed to use not only any of the

three names provided in Article 370, but also her maiden name upon marriage. She is not prohibited from continuously using her maiden name once she is married because when a woman marries, she does not change her name but only her civil status. Further, this interpretation is in consonance with the principle that surnames indicate descent.14 In the present case, petitioner, whose marriage is still subsisting and who opted to use her husbands surname in her old passport, requested to resume her maiden name in the replacement passport arguing that no law prohibits her from using her maiden name. Petitioner cites Yasin as the applicable precedent. However, Yasin is not squarely in point with this case. Unlike in Yasin, which involved a Muslim divorcee whose former husband is already married to another woman, petitioners marriage remains subsisting. Another point, Yasin did not involve a request to resume ones maiden name in a replacement passport, but a petition to resume ones maiden name in view of the dissolution of ones marriage. The law governing passport issuance is RA 8239 and the applicable provision in this case is Section 5(d), which states: Sec. 5. Requirements for the Issuance of Passport. No passport shall be issued to an applicant unless the Secretary or his duly authorized representative is satisfied that the applicant is a Filipino citizen who has complied with the following requirements: xxx (d) In case of a woman who is married, separated, divorced or widowed or whose marriage has been annulled or declared by court as void, a copy of the certificate of marriage, court decree of separation, divorce or annulment or certificate of death of the deceased spouse duly issued and authenticated by the Office of the Civil Registrar General: Provided, That in case of a divorce decree, annulment or declaration of marriage as void, the woman applicant may revert to the use of her maiden name: Provided, further, That such divorce is recognized under existing laws of the Philippines; x x x (Emphasis supplied) The Office of the Solicitor General (OSG), on behalf of the Secretary of Foreign Affairs, argues that the highlighted proviso in Section 5(d) of RA 8239 "limits the instances when a married woman may be allowed to revert to the use of her maiden name in her passport." These instances are death of husband, divorce decree, annulment or nullity of marriage. Significantly, Section 1, Article 12 of the Implementing Rules and Regulations of RA 8239 provides:

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The passport can be amended only in the following cases: a) Amendment of womans name due to marriage; b) Amendment of womans name due to death of spouse, annulment of marriage or divorce initiated by a foreign spouse; or c) Change of surname of a child who is legitimated by virtue of a subsequent marriage of his parents. Since petitioners marriage to her husband subsists, placing her case outside of the purview of Section 5(d) of RA 8239 (as to the instances when a married woman may revert to the use of her maiden name), she may not resume her maiden name in the replacement passport.15 This prohibition, according to petitioner, conflicts with and, thus, operates as an implied repeal of Article 370 of the Civil Code. Petitioner is mistaken. The conflict between Article 370 of the Civil Code and Section 5(d) of RA 8239 is more imagined than real. RA 8239, including its implementing rules and regulations, does not prohibit a married woman from using her maiden name in her passport. In fact, in recognition of this right, the DFA allows a married woman who applies for a passport for the first time to use her maiden name. Such an applicant is not required to adopt her husband's surname.16 In the case of renewal of passport, a married woman may either adopt her husbands surname or continuously use her maiden name. If she chooses to adopt her husbands surname in her new passport, the DFA additionally requires the submission of an authenticated copy of the marriage certificate. Otherwise, if she prefers to continue using her maiden name, she may still do so. The DFA will not prohibit her from continuously using her maiden name.17 However, once a married woman opted to adopt her husbands surname in her passport, she may not revert to the use of her maiden name, except in the cases enumerated in Section 5(d) of RA 8239. These instances are: (1) death of husband, (2) divorce, (3) annulment, or (4) nullity of marriage. Since petitioners marriage to her husband subsists, she may not resume her maiden name in the replacement passport. Otherwise stated, a married woman's reversion to the use of her maiden name

must be based only on the severance of the marriage. Even assuming RA 8239 conflicts with the Civil Code, the provisions of RA 8239 which is a special law specifically dealing with passport issuance must prevail over the provisions of Title XIII of the Civil Code which is the general law on the use of surnames. A basic tenet in statutory construction is that a special law prevails over a general law,18 thus: [I]t is a familiar rule of statutory construction that to the extent of any necessary repugnancy between a general and a special law or provision, the latter will control the former without regard to the respective dates of passage.19 Moreover, petitioners theory of implied repeal must fail. Well-entrenched is the rule that an implied repeal is disfavored. T he apparently conflicting provisions of a law or two laws should be harmonized as much as possible, so that each shall be effective.20 For a law to operate to repeal another law, the two laws must actually be inconsistent. The former must be so repugnant as to be irreconcilable with the latter act.21 This petitioner failed to establish.1avvphi1 The Court notes that petitioner would not have encountered any problems in the replacement passport had she opted to continuously and consistently use her maiden name from the moment she was married and from the time she first applied for a Philippine passport. However, petitioner consciously chose to use her husbands surname before, in her previous passport application, and now desires to resume her maiden name. If we allow petitioners present request, definitely nothing prevents her in the future from requesting to revert to the use of her husbands surname. Such unjustified changes in one's name and identity in a passport, which is considered superior to all other official documents,22 cannot be countenanced. Otherwise, undue confusion and inconsistency in the records of passport holders will arise. Thus, for passport issuance purposes, a married woman, such as petitioner, whose marriage subsists, may not change her family name at will. The acquisition of a Philippine passport is a privilege. The law recognizes the passport applicants constitutional right to travel. However, the State is also mandated to protect and maintain the integrity and credibility of the passport and travel documents proceeding from it23 as a Philippine passport remains at all times the property of the Government. The holder is merely a possessor of the passport as long

as it is valid and the same may not be surrendered to any person or entity other than the government or its representative.24 As the OSG correctly pointed out: [T]he issuance of passports is impressed with public interest. A passport is an official document of identity and nationality issued to a person intending to travel or sojourn in foreign countries. It is issued by the Philippine government to its citizens requesting other governments to allow its holder to pass safely and freely, and in case of need, to give him/her aid and protection. xxx Viewed in the light of the foregoing, it is within respondents competence to regulate any amendments intended to be made therein, including the denial of unreasonable and whimsical requests for amendments such as in the instant case.25 WHEREFORE, we DENY the petition. We AFFIRM the 27 May 2005 Decision and 2 August 2005 Resolution of the Court of Appeals in CA-G.R. SP No. 87710. SO ORDERED. ANTONIO T. CARPIO Associate Justice CIVIL REGISTER Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 174689 October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner, vs. REPUBLIC OF THE PHILIPPINES, respondent. DECISION CORONA, J.: When God created man, He made him in the likeness of God; He created them male and female. (Genesis 5:1-2) Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from inside the bamboo. "Oh North Wind!

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North Wind! Please let us out!," the voices said. She pecked the reed once, then twice. All of a sudden, the bamboo cracked and slit open. Out came two human beings; one was a male and the other was a female. Amihan named the man "Malakas" (Strong) and the woman "Maganda" (Beautiful). (The Legend of Malakas and Maganda) When is a man a man and when is a woman a woman? In particular, does the law recognize the changes made by a physician using scalpel, drugs and counseling with regard to a persons sex? May a person successfully petition for a change of name and sex appearing in the birth certificate to reflect the result of a sex reassignment surgery? On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his first name and sex in his birth certificate in the Regional Trial Court of Manila, Branch 8. The petition, docketed as SP Case No. 02-105207, impleaded the civil registrar of Manila as respondent. Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as "Rommel Jacinto Dantes Silverio" in his certificate of live birth (birth certificate). His sex was registered as "male." He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as a female" and that he had always identified himself with girls since childhood.1 Feeling trapped in a mans body, he consulted several doctors in the United States. He underwent psychological examination, hormone treatment and breast augmentation. His attempts to transform himself to a "woman" culminated on January 27, 2001 when he underwent sex reassignment surgery2 in Bangkok, Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the Philippines, who issued a medical certificate attesting that he (petitioner) had in fact undergone the procedure. From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to have his name in his birth certificate changed from "Rommel Jacinto" to "Mely," and his sex from "male" to "female."

An order setting the case for initial hearing was published in the Peoples Journal Tonight, a newspaper of general circulation in Metro Manila, for three consecutive weeks.3 Copies of the order were sent to the Office of the Solicitor General (OSG) and the civil registrar of Manila. On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the petition was made. During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American fianc, Richard P. Edel, as witnesses. On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant portions read: Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the purpose of making his birth records compatible with his present sex. The sole issue here is whether or not petitioner is entitled to the relief asked for. The [c]ourt affirmative. rules in the

ground to deny the present petition despite due notice and publication thereof. Even the State, through the [OSG] has not seen fit to interpose any [o]pposition. WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil Registrar of Manila to change the entries appearing in the Certificate of Birth of [p]etitioner, specifically for petitioners first name from "Rommel Jacinto" to MELY and petitioners gender from "Male" to FEMALE. 5 On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for certiorari in the Court of Appeals.6 It alleged that there is no law allowing the change of entries in the birth certificate by reason of sex alteration. On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It ruled that the trial courts decision lacked legal basis. There is no law allowing the change of either name or sex in the certificate of birth on the ground of sex reassignment through surgery. Thus, the Court of Appeals granted the Republics petition, set aside the decision of the trial court and ordered the dismissal of SP Case No. 02-105207. Petitioner moved for reconsideration but it was denied.9 Hence, this petition. Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed under Articles 407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048.10 The petition lacks merit. A Persons First Name Cannot Be Changed On the Ground of Sex Reassignment Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As found by the trial court: Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the purpose of making his birth records compatible with his present sex. (emphasis supplied) Petitioner believes that after having acquired the physical features of a female,

Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance with the principles of justice and equity. With his sexual [re-assignment], petitioner, who has always felt, thought and acted like a woman, now possesses the physique of a female. Petitioners misfortune to be trapped in a mans body is not his own doing and should not be in any way taken against him. Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or the community in granting the petition. On the contrary, granting the petition would bring the much-awaited happiness on the part of the petitioner and her [fianc] and the realization of their dreams. Finally, no evidence was presented to show any cause or

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he became entitled to the civil registry changes sought. We disagree. The State has an interest in the names borne by individuals and entities for purposes of identification.11 A change of name is a privilege, not a right.12 Petitions for change of name are controlled by statutes.13 In this connection, Article 376 of the Civil Code provides: ART. 376. No person can change his name or surname without judicial authority. This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of RA 9048 provides: SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations. RA 9048 now governs the change of first name.14 It vests the power and authority to entertain petitions for change of first name to the city or municipal civil registrar or consul general concerned. Under the law, therefore, jurisdiction over applications for change of first name is now primarily lodged with the aforementioned administrative officers. The intent and effect of the law is to exclude the change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative petition for change of name is first filed and subsequently denied.15 It likewise lays down the corresponding venue,16 form17 and procedure. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial. RA 9048 likewise provides the grounds for which change of first name may be allowed: SECTION 4. Grounds for Change of First Name or Nickname. The petition for change of first name or nickname may be allowed in any of the following cases:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce; (2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or (3) The change confusion. will avoid

The determination of a persons sex appearing in his birth certificate is a legal issue and the court must look to the statutes.21 In this connection, Article 412 of the Civil Code provides: ART. 412. No entry in the civil register shall be changed or corrected without a judicial order. Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far as clerical or typographical errors are involved. The correction or change of such matters can now be made through administrative proceedings and without the need for a judicial order. In effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such errors.22 Rule 108 now applies only to substantial changes and corrections in entries in the civil register.23 Section 2(c) of RA 9048 defines what a "clerical or typographical error" is: SECTION 2. Definition of Terms. As used in this Act, the following terms shall mean: xxx xxx xxx (3) "Clerical or typographical error" refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided, however, That no correction must involve the change of nationality, age, status or sex of the petitioner. (emphasis supplied) Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a

Petitioners basis in praying for the change of his first name was his sex reassignment. He intended to make his first name compatible with the sex he thought he transformed himself into through surgery. However, a change of name does not alter ones legal capacity or civil status.18 RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioners first name for his declared purpose may only create grave complications in the civil registry and the public interest. Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change.19 In addition, he must show that he will be prejudiced by the use of his true and official name.20 In this case, he failed to show, or even allege, any prejudice that he might suffer as a result of using his true and official name. In sum, the petition in the trial court in so far as it prayed for the change of petitioners first name was not within that courts primary jurisdiction as the petition should have been filed with the local civil registrar concerned, assuming it could be legally done. It was an improper remedy because the proper remedy was administrative, that is, that provided under RA 9048. It was also filed in the wrong venue as the proper venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept. More importantly, it had no merit since the use of his true and official name does not prejudice him at all. For all these reasons, the Court of Appeals correctly dismissed petitioners petition in so far as the change of his first name was concerned. No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex Reassignment

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substantial change for which the applicable procedure is Rule 108 of the Rules of Court. The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are those provided in Articles 407 and 408 of the Civil Code:24 ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register. ART. 408. The following shall be entered in the civil register: (1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name. The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth.25 However, no reasonable interpretation of the provision can justify the conclusion that it covers the correction on the ground of sex reassignment. To correct simply means "to make or set aright; to remove the faults or error from" while to change means "to replace something with something else of the same kind or with something that serves as a substitute."26 The birth certificate of petitioner contained no error. All entries therein, including those corresponding to his first name and sex, were all correct. No correction is necessary. Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as legitimations, acknowledgments of illegitimate children and naturalization), events (such as births, marriages, naturalization and deaths) and judicial decrees (such as legal separations, annulments of marriage, declarations of nullity of marriages, adoptions, naturalization, loss or recovery of citizenship, civil interdiction, judicial determination of filiation and changes of name). These acts, events and judicial decrees produce legal consequences that touch upon the legal capacity, status and nationality of a person. Their effects are expressly sanctioned by the laws. In

contrast, sex reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or impliedly. "Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities and incapacities) of a person in view of his age, nationality and his family membership.27 The status of a person in law includes all his personal qualities and relations, more or less permanent in nature, not ordinarily terminable at his own will, such as his being legitimate or illegitimate, or his being married or not. The comprehensive term status include such matters as the beginning and end of legal personality, capacity to have rights in general, family relations, and its various aspects, such as birth, legitimation, adoption, emancipation, marriage, divorce, and sometimes even succession.28 (emphasis supplied) A persons sex is an essential factor in marriage and family relations. It is a part of a persons legal capacity and civil status. In this connection, Article 413 of the Civil Code provides: ART. 413. All other matters pertaining to the registration of civil status shall be governed by special laws. But there is no such special law in the Philippines governing sex reassignment and its effects. This is fatal to petitioners cause. Moreover, Section 5 of Act 3753 (the Civil Register Law) provides: SEC. 5. Registration and certification of births. The declaration of the physician or midwife in attendance at the birth or, in default thereof, the declaration of either parent of the newborn child, shall be sufficient for the registration of a birth in the civil register. Such declaration shall be exempt from documentary stamp tax and shall be sent to the local civil registrar not later than thirty days after the birth, by the physician or midwife in attendance at the birth or by

either parent of the newborn child. In such declaration, the person above mentioned shall certify to the following facts: (a) date and hour of birth; (b) sex and nationality of infant; (c) names, citizenship and religion of parents or, in case the father is not known, of the mother alone; (d) civil status of parents; (e) place where the infant was born; and (f) such other data as may be required in the regulations to be issued. xxx xxx supplied) xxx (emphasis

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of birth.29 Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife) by examining the genitals of the infant. Considering that there is no law legally recognizing sex reassignment, the determination of a persons sex made at the time of his or her birth, if not attended by error,30 is immutable.31 When words are not defined in a statute they are to be given their common and ordinary meaning in the absence of a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil Register Law and laws concerning the civil registry (and even all other laws) should therefore be understood in their common and ordinary usage, there being no legislative intent to the contrary. In this connection, sex is defined as "the sum of peculiarities of structure and function that distinguish a male from a female"32 or "the distinction between male and female."33 Female is "the sex that produces ova or bears young"34 and male is "the sex that has organs to produce spermatozoa for fertilizing ova."35 Thus, the words "male" and "female" in everyday understanding do not include persons who have undergone sex reassignment. Furthermore, "words that are employed in a statute which had at the time a well-known meaning are presumed to have been used in that sense unless the context compels to the contrary."36 Since the statutory language of the Civil Register Law was enacted in the early 1900s and remains unchanged, it cannot be argued that the term "sex" as used then is something alterable through surgery or something that allows a postoperative male-to-female transsexual to be included in the category "female."

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For these reasons, while petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. Thus, there is no legal basis for his petition for the correction or change of the entries in his birth certificate. Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of Equity The trial court opined that its grant of the petition was in consonance with the principles of justice and equity. It believed that allowing the petition would cause no harm, injury or prejudice to anyone. This is wrong. The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. First, even the trial court itself found that the petition was but petitioners first step towards his eventual marriage to his male fianc. However, marriage, one of the most sacred social institutions, is a special contract of permanent union between a man and a woman.37 One of its essential requisites is the legal capacity of the contracting parties who must be a male and a female.38 To grant the changes sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family relations. It will allow the union of a man with another man who has undergone sex reassignment (a male-to-female post-operative transsexual). Second, there are various laws which apply particularly to women such as the provisions of the Labor Code on employment of women,39 certain felonies under the Revised Penal Code40 and the presumption of survivorship in case of calamities under Rule 131 of the Rules of Court,41 among others. These laws underscore the public policy in relation to women which could be substantially affected if petitioners petition were to be granted. It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the law." However, it is not a license for courts to engage in judicial legislation. The duty of the courts is to apply or interpret the law, not to make or amend it. In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of the effects of sex reassignment. The need for legislative guidelines becomes particularly important in this case where the claims asserted are statute-based.

To reiterate, the statutes define who may file petitions for change of first name and for correction or change of entries in the civil registry, where they may be filed, what grounds may be invoked, what proof must be presented and what procedures shall be observed. If the legislature intends to confer on a person who has undergone sex reassignment the privilege to change his name and sex to conform with his reassigned sex, it has to enact legislation laying down the guidelines in turn governing the conferment of that privilege. It might be theoretically possible for this Court to write a protocol on when a person may be recognized as having successfully changed his sex. However, this Court has no authority to fashion a law on that matter, or on anything else. The Court cannot enact a law where no law exists. It can only apply or interpret the written word of its co-equal branch of government, Congress. Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the] realization of their dreams." No argument about that. The Court recognizes that there are people whose preferences and orientation do not fit neatly into the commonly recognized parameters of social convention and that, at least for them, life is indeed an ordeal. However, the remedies petitioner seeks involve questions of public policy to be addressed solely by the legislature, not by the courts. WHEREFORE, hereby DENIED. the petition is

for Correction of Entries in Birth Certificate filed by Jennifer B. Cagandahan and ordered the following changes of entries in Cagandahan's birth certificate: (1) the name "Jennifer Cagandahan" changed to "Jeff Cagandahan" and (2) gender from "female" to "male." The facts are as follows.

On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for Correction of Entries in Birth Certificate[2] before the RTC, Branch 33 of Siniloan, Laguna. In her petition, she alleged that she was born on January 13, 1981 and was registered as a female in the Certificate of Live Birth but while growing up, she developed secondary male characteristics and was diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a condition where persons thus afflicted possess both male and female characteristics. She further alleged that she was diagnosed to have clitoral hyperthropy in her early years and at age six, underwent an ultrasound where it was discovered that she has small ovaries. At age thirteen, tests revealed that her ovarian structures had minimized, she has stopped growing and she has no breast or menstrual development. She then alleged that for all interests and appearances as well as in mind and emotion, she has become a male person. Thus, she prayed that her birth certificate be corrected such that her gender be changed from female to male and her first name be changed from Jennifer to Jeff. The petition was published in a newspaper of general circulation for three (3) consecutive weeks and was posted in conspicuous places by the sheriff of the court. The Solicitor General entered his appearance and authorized the Assistant Provincial Prosecutor to appear in his behalf. To prove her claim, respondent testified and presented the testimony of Dr. Michael Sionzon of the Department of Psychiatry, University of the Philippines-Philippine General Hospital. Dr. Sionzon issued a medical certificate stating that respondent's condition is known as CAH. He explained that genetically respondent is female but because her body secretes male hormones, her female organs did not develop normally and she has two sex organs - female and male. He testified that this condition is very rare, that respondent's uterus is not fully developed because of lack of female hormones, and that she has no monthly period. He further testified that respondent's condition is permanent and recommended the change of gender because respondent has made up her mind,

Costs against petitioner. SO ORDERED. Puno, C.J., Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, JJ., concur. SECOND DIVISION [G.R. No. 166676, September 12, 2008]

REPUBLIC OF THE PHILIPPINES, PETITIONER, VS. JENNIFER B. CAGANDAHAN, RESPONDENT. DECISION QUISUMBING, J.: This is a petition for review under Rule 45 of the Rules of Court raising purely questions of law and seeking a reversal of the Decision[1] dated January 12, 2005 of the Regional Trial Court (RTC), Branch 33 of Siniloan, Laguna, which granted the Petition

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adjusted to her chosen role as male, and the gender change would be advantageous to her. The RTC granted respondent's petition in a Decision dated January 12, 2005 which reads: The Court is convinced that petitioner has satisfactorily shown that he is entitled to the reliefs prayed [for]. Petitioner has adequately presented to the Court very clear and convincing proofs for the granting of his petition. It was medically proven that petitioner's body produces male hormones, and first his body as well as his action and feelings are that of a male. He has chosen to be male. He is a normal person and wants to be acknowledged and identified as a male. WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is hereby ordered to make the following corrections in the birth [c]ertificate of Jennifer Cagandahan upon payment of the prescribed fees: a) By changing the name from Jennifer Cagandahan to JEFF CAGANDAHAN; and b) By changing the gender from female to MALE. It is likewise ordered that petitioner's school records, voter's registry, baptismal certificate, and other pertinent records are hereby amended to conform with the foregoing corrected data. SO ORDERED. Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal of the abovementioned ruling. The issues raised by petitioner are: THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING THAT: I. THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT HAVE NOT BEEN COMPLIED WITH; AND, II. CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF "SEX" OR "GENDER" IN THE BIRTH CERTIFICATE, WHILE RESPONDENT'S MEDICAL CONDITION, i.e., CONGENITAL ADRENAL HYPERPLASIA DOES NOT MAKE HER A "MALE."[4] Simply stated, the issue is whether the trial court erred in ordering the correction of entries in the birth certificate of respondent to change her sex or gender, from female to male, on the ground of her medical condition known as CAH, and her name from "Jennifer" to "Jeff," under Rules 103 and 108 of the Rules of Court.
[3]

The OSG contends that the petition below is fatally defective for non-compliance with Rules 103 and 108 of the Rules of Court because while the local civil registrar is an indispensable party in a petition for cancellation or correction of entries under Section 3, Rule 108 of the Rules of Court, respondent's petition before the court a quo did not implead the local civil registrar.[5] The OSG further contends respondent's petition is fatally defective since it failed to state that respondent is a bona fide resident of the province where the petition was filed for at least three (3) years prior to the date of such filing as mandated under Section 2(b), Rule 103 of the Rules of Court.[6] The OSG argues that Rule 108 does not allow change of sex or gender in the birth certificate and respondent's claimed medical condition known as CAH does not make her a male.[7] On the other hand, respondent counters that although the Local Civil Registrar of Pakil, Laguna was not formally named a party in the Petition for Correction of Birth Certificate, nonetheless the Local Civil Registrar was furnished a copy of the Petition, the Order to publish on December 16, 2003 and all pleadings, orders or processes in the course of the proceedings,[8] respondent is actually a male person and hence his birth certificate has to be corrected to reflect his true sex/gender,[9] change of sex or gender is allowed under Rule 108,[10] and respondent substantially complied with the requirements of Rules 103 and 108 of the Rules of Court.[11] Rules 103 and 108 of the Rules of Court provide: Rule 103 CHANGE OF NAME SECTION 1. Venue. - A person desiring to change his name shall present the petition to the Regional Trial Court of the province in which he resides, [or, in the City of Manila, to the Juvenile and Domestic Relations Court]. SEC. 2. Contents of petition. - A petition for change of name shall be signed and verified by the person desiring his name changed, or some other person on his behalf, and shall set forth: (a) That the petitioner has been a bona fide resident of the province where the petition is filed for at least three (3) years prior to the date of such filing; (b) The cause for which the change of the petitioner's name is sought; (c) The name asked for. SEC. 3. Order for hearing. - If the petition filed is sufficient in form and substance, the

court, by an order reciting the purpose of the petition, shall fix a date and place for the hearing thereof, and shall direct that a copy of the order be published before the hearing at least once a week for three (3) successive weeks in some newspaper of general circulation published in the province, as the court shall deem best. The date set for the hearing shall not be within thirty (30) days prior to an election nor within four (4) months after the last publication of the notice. SEC. 4. Hearing. - Any interested person may appear at the hearing and oppose the petition. The Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Government of the Republic. SEC. 5. Judgment. - Upon satisfactory proof in open court on the date fixed in the order that such order has been published as directed and that the allegations of the petition are true, the court shall, if proper and reasonable cause appears for changing the name of the petitioner, adjudge that such name be changed in accordance with the prayer of the petition. SEC. 6. Service of judgment. - Judgments or orders rendered in connection with this rule shall be furnished the civil registrar of the municipality or city where the court issuing the same is situated, who shall forthwith enter the same in the civil register. Rule 108 CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY SECTION 1. Who may file petition. - Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the Regional Trial Court of the province where the corresponding civil registry is located. SEC. 2. Entries subject to cancellation or correction. - Upon good and valid grounds, the following entries in the civil register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name. SEC. 3. Parties. - When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons

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who have or claim any interest which would be affected thereby shall be made parties to the proceeding. SEC. 4. Notice and publication. - Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. SEC. 5. Opposition. - The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or from the last date of publication of such notice, file his opposition thereto. SEC. 6. Expediting proceedings. - The court in which the proceedings is brought may make orders expediting the proceedings, and may also grant preliminary injunction for the preservation of the rights of the parties pending such proceedings. SEC. 7. Order. - After hearing, the court may either dismiss the petition or issue an order granting the cancellation or correction prayed for. In either case, a certified copy of the judgment shall be served upon the civil registrar concerned who shall annotate the same in his record. The OSG argues that the petition below is fatally defective for non-compliance with Rules 103 and 108 of the Rules of Court because respondent's petition did not implead the local civil registrar. Section 3, Rule 108 provides that the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceedings. Likewise, the local civil registrar is required to be made a party in a proceeding for the correction of name in the civil registry. He is an indispensable party without whom no final determination of the case can be had.[12]Unless all possible indispensable parties were duly notified of the proceedings, the same shall be considered as falling much too short of the requirements of the rules.[13] The corresponding petition should also implead as respondents the civil registrar and all other persons who may have or may claim to have any interest that would be affected thereby.[14] Respondent, however, invokes Section 6,[15] Rule 1 of the Rules of Court which states that courts shall construe the Rules liberally to promote their objectives of securing to the parties a just, speedy and inexpensive disposition of the matters brought before it. We agree that there is substantial compliance with Rule 108 when respondent furnished a copy of the petition to the local civil registrar.

The determination of a person's sex appearing in his birth certificate is a legal issue and the court must look to the statutes. In this connection, Article 412 of the Civil Code provides: ART. 412. No entry in a civil register shall be changed or corrected without a judicial order. Together with Article 376[16] of the Civil Code, this provision was amended by Republic Act No. 9048[17] in so far as clerical or typographical errors are involved. The correction or change of such matters can now be made through administrative proceedings and without the need for a judicial order. In effect, Rep. Act No. 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such errors. Rule 108 now applies only to substantial changes and corrections in entries in the civil register.[18] Under Rep. Act No. 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of Court.[19] The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are those provided in Articles 407 and 408 of the Civil Code: ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register. ART. 408. The following shall be entered in the civil register: (1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name. The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth.[20] Respondent undisputedly has CAH. This condition causes the early or "inappropriate" appearance of male characteristics. A person, like respondent, with this condition produces too much androgen, a male hormone. A newborn who has XX chromosomes coupled with CAH usually has a (1) swollen clitoris with the urethral opening at the base, an ambiguous genitalia often appearing more male than female; (2) normal internal structures of the female reproductive tract such as the ovaries, uterus and fallopian tubes; as the child grows older, some features start to appear male, such as

deepening of the voice, facial hair, and failure to menstruate at puberty. About 1 in 10,000 to 18,000 children are born with CAH. CAH is one of many conditions[21] that involve intersex anatomy. During the twentieth century, medicine adopted the term "intersexuality" to apply to human beings who cannot be classified as either male or female.[22] The term is now of widespread use. According to Wikipedia, intersexuality "is the state of a living thing of a gonochoristic species whose sex chromosomes, genitalia, and/or secondary sex characteristics are determined to be neither exclusively male nor female. An organism with intersex may have biological characteristics of both male and female sexes." Intersex individuals are treated in different ways by different cultures. In most societies, intersex individuals have been expected to conform to either a male or female gender role.[23] Since the rise of modern medical science in Western societies, some intersex people with ambiguous external genitalia have had their genitalia surgically modified to resemble either male or female genitals.[24] More commonly, an intersex individual is considered as suffering from a "disorder" which is almost always recommended to be treated, whether by surgery and/or by taking lifetime medication in order to mold the individual as neatly as possible into the category of either male or female. In deciding this case, we consider the compassionate calls for recognition of the various degrees of intersex as variations which should not be subject to outright denial. "It has been suggested that there is some middle ground between the sexes, a `no-man's land' for those individuals who are neither truly `male' nor truly `female'."[25] The current state of Philippine statutes apparently compels that a person be classified either as a male or as a female, but this Court is not controlled by mere appearances when nature itself fundamentally negates such rigid classification. In the instant case, if we determine respondent to be a female, then there is no basis for a change in the birth certificate entry for gender. But if we determine, based on medical testimony and scientific development showing the respondent to be other than female, then a change in the subject's birth certificate entry is in order. Biologically, nature endowed respondent with a mixed (neither consistently and categorically female nor consistently and categorically male) composition. Respondent has female (XX) chromosomes.

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However, respondent's body system naturally produces high levels of male hormones (androgen). As a result, respondent has ambiguous genitalia and the phenotypic features of a male. Ultimately, we are of the view that where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, like respondent, having reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his body produces high levels of male hormones (androgen) there is preponderant biological support for considering him as being male. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed. Respondent here has simply let nature take its course and has not taken unnatural steps to arrest or interfere with what he was born with. And accordingly, he has already ordered his life to that of a male. Respondent could have undergone treatment and taken steps, like taking lifelong medication,[26] to force his body into the categorical mold of a female but he did not. He chose not to do so. Nature has instead taken its due course in respondent's development to reveal more fully his male characteristics. In the absence of a law on the matter, the Court will not dictate on respondent concerning a matter so innately private as one's sexuality and lifestyle preferences, much less on whether or not to undergo medical treatment to reverse the male tendency due to CAH. The Court will not consider respondent as having erred in not choosing to undergo treatment in order to become or remain as a female. Neither will the Court force respondent to undergo treatment and to take medication in order to fit the mold of a female, as society commonly currently knows this gender of the human species. Respondent is the one who has to live with his intersex anatomy. To him belongs the human right to the pursuit of happiness and of health. Thus, to him should belong the primordial choice of what courses of action to take along the path of his sexual development and maturation. In the absence of evidence that respondent is an "incompetent"[27] and in the absence of evidence to show that classifying respondent as a male will harm other members of society who are equally entitled to protection under the law, the Court affirms as valid and justified the respondent's position and his personal judgment of being a male. In so ruling we do no more than give

respect to (1) the diversity of nature; and (2) how an individual deals with what nature has handed out. In other words, we respect respondent's congenital condition and his mature decision to be a male. Life is already difficult for the ordinary person. We cannot but respect how respondent deals with his unordinary state and thus help make his life easier, considering the unique circumstances in this case. As for respondent's change of name under Rule 103, this Court has held that a change of name is not a matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the consequences that will follow.[28] The trial court's grant of respondent's change of name from Jennifer to Jeff implies a change of a feminine name to a masculine name. Considering the consequence that respondent's change of name merely recognizes his preferred gender, we find merit in respondent's change of name. Such a change will conform with the change of the entry in his birth certificate from female to male. WHEREFORE, the Republic's petition is DENIED. The Decision dated January 12, 2005 of the Regional Trial Court, Branch 33 of Siniloan, Laguna, is AFFIRMED. No pronouncement as to costs. SO Carpio-Morales, Tinga, Jr., and Brion, JJ., concur. ORDERED. Velasco,

I can do all things through Christ who strengthens me Philippians 4:13 To God be the Glory!

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