TITLE VIII.
SUPPORT (194-208) On August 28, 2009, petitioner, through her counsel,
DEL SOCORRO vs. VAN WILSEM, GR 193707, DEC.
10, 2014
FACTS:
Petitioner Norma A. Del Socorro and respondent Ernst
Johan Brinkman Van Wilsem contracted marriage in
Holland on September 25, 1990. On January 19, 1994,
they were blessed with a son named Roderigo Norjo Van
Wilsem, who at the time of the filing of the instant petition
was sixteen (16) years of age.
Unfortunately, their marriage bond ended on July 19,
1995 by virtue of a Divorce Decree issued by the
appropriate Court of Holland. At that time, their son was
only eighteen (18) months old. Thereafter, petitioner and
her son came home to the Philippines.
According to petitioner, respondent made a promise to
provide monthly support to their son in the amount of
Two Hundred Fifty (250) Guildene (which is equivalent to
Php17,500.00 more or less). However, since the arrival of
petitioner and her son in the Philippines, respondent
never gave support to the son, Roderigo.
Not long thereafter, respondent came to the Philippines
and remarried in Pinamungahan, Cebu, and since then,
have been residing thereat. Respondent and his new wife
established a business known as Paree Catering, located
at Barangay Tajao, Municipality of Pinamungahan, Cebu
City. To date, all the parties, including their son,
Roderigo, are presently living in Cebu City.
sent a letter demanding for support from respondent.
However, respondent refused to receive the letter.
CRIME CHARGED: violation of Section 5, paragraph E(2)
of R.A. No. 9262 (VAWC)
RTC: DISMISSED on the ground that the facts charged
in the information do not constitute an offense with
respect to the respondent who is an ALIEN.
Issues:
1) WON a foreign national has an obligation to support
his minor child under Phil. Law;
2) WON a foreign national can be held criminally liable
under RA 9262 for his unjustified failure to support his
minor child
SC HELD:
*Note: petition was allowed to be directly appealed to the
SC without violating hierarchy of courts since the petition
involves purely questions of law.
Petitioner invokes Article 195 of the Family Code, which
provides the parent’s obligation to support his child.
Petitioner contends that notwithstanding the existence of
a divorce decree issued in relation to Article 26 of the
Family Code, respondent is not excused from complying
with his obligation to support his minor child with
petitioner.
On the other hand, respondent contends that there is no
sufficient and clear basis presented by petitioner that
she, as well as her minor son, are entitled to financial
support. Respondent also added that by reason of the
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Divorce Decree, he is not obligated to petitioner for any
financial support.
On this point, we agree with respondent that petitioner
cannot rely on Article 195 of the New Civil Code in
demanding support from respondent, who is a foreign
citizen, since Article 15 of the New Civil Code stresses
the principle of nationality. In other words, insofar as
Philippine laws are concerned, specifically the provisions
of the Family Code on support, the same only applies to
Filipino citizens. By analogy, the same principle applies
to foreigners such that they are governed by their national
law with respect to family rights and duties
The obligation to give support to a child is a matter that
falls under family rights and duties. Since the respondent
is a citizen of Holland or the Netherlands, we agree with
the RTC-Cebu that he is subject to the laws of his
country, not to Philippine law, as to whether he is obliged
to give support to his child, as well as the consequences
of his failure to do so.
This does not, however, mean that respondent is not
obliged to support petitioner’s son altogether.
In international law, the party who wants to have a
foreign law applied to a dispute or case has the burden
of proving the foreign law. In the present case,
respondent hastily concludes that being a national of the
Netherlands, he is governed by such laws on the matter
of provision of and capacity to support. While respondent
pleaded the laws of the Netherlands in advancing his
position that he is not obliged to support his son, he
never proved the same.
In view of respondent’s failure to prove the national law
of the Netherlands in his favor, the doctrine of
processual presumption shall govern. Under this
doctrine, if the foreign law involved is not properly
pleaded and proved, our courts will presume that the
foreign law is the same as our local or domestic or internal
law. Thus, since the law of the Netherlands as regards the
obligation to support has not been properly pleaded and
proved in the instant case, it is presumed to be the same
with Philippine law, which enforces the obligation of
parents to support their children and penalizing the non-
compliance therewith.
We likewise agree with petitioner that notwithstanding
that the national law of respondent states that parents
have no obligation to support their children or that such
obligation is not punishable by law, said law would still
not find applicability for the reason that when the
foreign law, judgment or contract is contrary to a
sound and established public policy of the forum, the
said foreign law, judgment or order shall not be
applied.
Applying the foregoing, even if the laws of the Netherlands
neither enforce a parent’s obligation to support his child
nor penalize the noncompliance therewith, such
obligation is still duly enforceable in the Philippines
because it would be of great injustice to the child to be
denied of financial support when the latter is entitled
thereto.
Based on the foregoing legal precepts, we find that
respondent may be made liable under Section 5(e) and
2
(i) of R.A. No. 9262 for unjustly refusing or failing to give
support to petitioner’s son.
In addition, considering that respondent is currently
living in the Philippines, we find strength in petitioner’s
claim that the Territoriality Principle in criminal law, in
relation to Article 14 of the New Civil Code, applies to the
instant case, which provides that: "[p]enal laws and those
of public security and safety shall be obligatory upon all
who live and sojourn in Philippine territory, subject to the
principle of public international law and to treaty
stipulations." On this score, it is indisputable that the
alleged continuing acts of respondent in refusing to
support his child with petitioner is committed here in the
Philippines as all of the parties herein are residents of the
Province of Cebu City. As such, our courts have territorial
jurisdiction over the offense charged against respondent.
It is likewise irrefutable that jurisdiction over the
respondent was acquired upon his arrest.
Finally, we do not agree with respondent’s argument that
granting, but not admitting, that there is a legal basis for
charging violation of R.A. No. 9262 in the instant case,
the criminal liability has been extinguished on the ground
of prescription of crime. The act of denying support to a
child under Section 5(e)(2) and (i) of R.A. No. 9262 is a
continuing offense, which started in 1995 but is still
ongoing at present. Accordingly, the crime charged in the
instant case has clearly not prescribed.
PETITION GRANTED, CASE REMANDED TO RTC.
Green Notes
The obligation to give support to a child is a matter that
falls under family rights and duties. Since the respondent
is a citizen of Holland, he is subject to the laws of his
country, NOT to Philippine law, as to whether he is
obliged to give support to his child, as well as the
consequences of his failure to do so.
While respondent pleaded the laws of the Netherlands in
contending that he is not obliged to support his son, he
never proved the same, hence the doctrine of processual
presumption shall govern. Under this doctrine, if the
foreign law involved is not properly pleaded and proved,
our courts will presume that the foreign law is the same
as our internal law, which enforces the obligation of
parents to support their children and penalizing the non-
compliance therewith.
Foreign law should not be applied when its application
would work undeniable injustice to the citizens or
residents of the forum.
Respondent may be made liable under Section 5(e) and (i)
of R.A. No. 9262 for unjustly refusing or failing to give
support to petitioner’s son. The deprivation or denial of
financial support to the child is considered an act of
violence against women and children.
SPS. LIM vs. LIM et. al.,
Civil Law; Family Code; Support; Relying on
provisions 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 or
suspension during the children’s minority.—By statutory
and jurisprudential mandate, the liability of ascendants
to provide legal support to their descendants is beyond
3
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 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 or
suspension during the children’s minority. Because at the
time respondents sued for support, Cheryl and Edward
exercised parental authority over their children,
petitioners submit that the obligation to support the
latter’s offspring ends with them.
Same; Same; Same; The obligation to provide support
arising from parental authority ends upon the
emancipation of the child, 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 latter’s inability to provide sufficient support.
As we observed another case raising the ancillary issue of
an ascendant’s obligation to give support in light of the
father’s sufficient means.—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, they differ in other
concerns including the duration of the obligation and
its concurrence among relatives of differing degrees. Thus,
although the obligation to provide support arising from
parental authority ends upon the emancipation of the
child, 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 latter’s inability to provide sufficient support.
As we observed in another case raising the ancillary issue
of an ascendant’s obligation to give support in light of the
father’s sufficient means.
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. Edwards
family business, which provided him with a monthly
salary of P6,000, shouldered the family expenses. Cheryl
had no steady source of income.
In 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 his grandmother in what the trial
court described a very compromising situation. 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.
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In 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. 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. 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).
In 2003, the Court of Appeals affirmed the trial court
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).
ISSUE: Whether petitioners are concurrently liable with
Edward to provide support to respondents.
HELD: YES.
By statutory and jurisprudential mandate, 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 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 or suspension during the childrens minority.
Because at the time respondents sued for support, Cheryl
and Edward exercised parental authority over their
children, petitioners submit that the obligation to
support the latters offspring ends with them.
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 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, petitioner’s 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, Cheryl’s right to receive
support from the Lim family extends only to her husband
Edward, arising from their marital bond. Unfortunately,
Cheryl’s share from the amount of monthly support the
trial court awarded cannot be determined from the
5
records. Thus, we are constrained to remand the case to
the trial court for this limited purpose.
Green Notes
Q: Are Edward’s parents concurrently liable with Edward
to provide support to respondents?
A: The obligation to provide legal support passes on to
ascendants not only upon default of the parents but also
for the latter’s inability to provide sufficient support. Art.
199 FC is applicable.
Lacson vs. Lacson
Parent and Child; Support; Asking one to comply with
his obligation to support owing to the urgency of the
situation is no less a demand because it came by way of a
request or a plea.—Petitioner admits being obliged, as
father, to provide support to both respondents, Maowee
and Maonaa. It is his threshold submission, however,
that he should not be made to pay support in arrears, i.e.,
from 1976 to 1994, no previous extrajudicial, let alone
judicial, demand having been made by the respondents.
He invokes the following provision of the Family Code to
complete his point: Article 203—The obligation to give
support shall be demandable from the time the person
who has a right to receive the same needs it for
maintenance, but it shall not be paid except from the date
of judicial or extrajudicial demand. To petitioner, his
obligation to pay under the aforequoted provision starts
from the filing of Civil Case No. 22185 in 1995, since only
from that moment can it be said that an effective demand
for support was made upon him. Petitioner’s above
posture has little to commend itself. For one, it
conveniently glossed over the fact that he veritably
abandoned the respondent sisters even before the elder of
the two could celebrate her second birthday. To be sure,
petitioner could not plausibly expect any of the sisters
during their tender years to go through the motion of
demanding support from him, what with the fact that
even their mother (his wife) found it difficult during the
period material to get in touch with him. For another, the
requisite demand for support appears to have been made
sometime in 1975. It may be that Lea made no
extrajudicial demand in the sense of a formal written
demand in terms and in the imperious tenor commonly
used by legal advocates in a demand letter. Nonetheless,
what would pass as a demand was, however, definitely
made. Asking one to comply with his obligation to support
owing to the urgency of the situation is no less a demand
because it came by way of a request or a plea.
GARCIA, J.:
Petitioner Edward V. Lacson, father of the respondent
sisters Maowee Daban Lacson and Maonaa Daban
Lacson and husband of their mother and guardian ad-
litem, Lea Daban Lacson, has come to this Court via this
petition for review under Rule 45 of the Rules of Court to
seek the reversal and setting aside of the Decision1 dated
July 13, 2001 of the Court of Appeals (CA) in CA-G.R. CV
No. 60203, as reiterated in its Resolution2 of October 18,
2001 denying his motion for reconsideration.
From the petition and its annexes, the respondents’
reply thereto, and other pleadings, the Court gathers the
following facts:
The sisters Maowee Daban Lacson and Maonaa Daban
Lacson are legitimate daughters of petitioner Edward V.
Lacson and his wife, Lea Daban Lacson. Maowee was
6
born on December 4, 1974, while Maonaa, a little less
than a year later. Not long after the birth of Maonaa,
petitioner left the conjugal home in Molo, Iloilo City,
virtually forcing mother and children to seek, apparently
for financial reason, shelter somewhere else. For a month,
they stayed with Lea’s mother-in-law, Alicia Lacson, then
with her (Lea’s) mother and then with her brother Noel
Daban. After some time, they rented an apartment only
to return later to the house of Lea’s mother. As the trial
court aptly observed, the sisters and their mother, from
1976 to 1994, or for a period of eighteen (18) years,
shuttled from one dwelling place to another not their own.
It appears that from the start of their estrangement, Lea
did not badger her husband Edward for support, relying
initially on his commitment memorialized in a note dated
December 10, 1975 to give support to his daughters. As
things turned out, however, Edward reneged on his
promise of support, despite Lea’s efforts towards having
him fulfill the same. Lea would admit, though, that
Edward occasionally gave their children meager amounts
for school expenses. Through the years and up to the
middle part of 1992, Edward’s mother, Alicia Lacson, also
gave small amounts to help in the schooling of Maowee
and Maonaa, both of whom eventually took up nursing at
St. Paul’s College in Iloilo City. In the early part of 1995
when Lea, in behalf of her two daughters, filed a
complaint against Edward for support before the Regional
Trial Court of Iloilo City, Branch 33, Maowee was about
to graduate.
In that complaint dated January 30, 1995, as
amended,3 docketed as Civil Case No. 22185, Maowee
and Maonaa, thru their mother, averred that their father
Edward, despite being gainfully employed and owning
several pieces of valuable lands, has not provided them
support since 1976. They also alleged that, owing to years
of Edward’s failure and neglect, their mother had, from
time to time, borrowed money from her brother Noel
Daban. As she would later testify, Lea had received from
Noel, by way of a loan, as much as P400,000.00 to
P600,000.00.
In his Answer, Edward alleged giving to Maowee and
Maonaa sufficient sum to meet their needs. He explained,
however, that his lack of regular income and the
unproductivity of the land he inherited, not his neglect,
accounted for his failure at times to give regular support.
He also blamed financial constraint for his inability to
provide the P12,000.00 monthly allowance prayed for in
the complaint.
As applied for and after due hearing, the trial court
granted the sisters Maowee and Maonaa
support pendente lite at P12,000.00 per month, subject
to the schedule of payment and other conditions set forth
in the court’s corresponding order of May 13, 1996.4
Following trial, the RTC rendered on June 26, 1997
judgment finding for the plaintiff sisters, as represented
by their mother. In that judgment, the trial court,
following an elaborate formula set forth therein, ordered
their defendant father Edward to pay them a specific sum
which represented 216 months, or 18 years, of support in
arrears. The fallo of the trial court’s decision5 reads:
“WHEREFORE, judgment is hereby rendered:
1. 1)Ordering defendant to compensate plaintiffs
support in arrears in the amount of TWO
MILLION FOUR HUNDRED NINETY-SIX
THOUSAND (P2,496,000.00) PESOS from which
amount shall be deducted ONE HUNDRED
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 TWENTY-FOUR (P124,000.00) PESOS that which
they received from defendant for two years and
that which they received by way of
support pendente lite;
2. 2)Ordering defendant to pay TWENTY THOUSAND
(P20,000.00) PESOS as attorney’s fees; and
3. 3)Pay costs.
SO ORDERED.”
Therefrom, Edward appealed to the CA whereat his
recourse was docketed as CA-G.R. CV. No. 60203.
Eventually, the CA, in the herein assailed Decision
dated July 13, 2001,6 dismissed Edward’s appeal,
disposing as follows:
“WHEREFORE, premises considered, the present appeal
is hereby DISMISSED and the appealed Decision in Civil
Case No. 22185 is hereby AFFIRMED.
Double costs against the defendant-appellant [Edward
Lacson].
SO ORDERED.” (Words in bracket added.)
In time, Edward moved for reconsideration, but his
motion was denied by the appellate court in its equally
assailed Resolution of October 18, 2001.7
Hence, Edward’s present recourse on his submission that
the CA erred—
1. I.X X X WHEN IT AFFIRMED THE GRANT OF
SUPPORT IN ARREARS FROM 1976 TO 1994.
2. II.X X X IN AFFIRMING THE ALLEGED ADVANCES
OF SUPPORT BY RESPONDENTS’ UNCLE NOEL
DABAN.
3. III.X X X IN AFFIRMING THE AWARD OF SUPPORT
EVEN IF PETITIONER IS NOT FINANCIALLY
CAPABLE OF PROVIDING THE SAME TO …
RESPONDENTS.
4. IV.X X X WHEN IT ORDERED PETITIONER TO
PROVIDE SUPPORT TO X X X RESPONDENTS
EVEN IF PETITIONER’S OBLIGATION TO
PROVIDE SUPPORT HAD ALREADY BEEN
COMPLETELY SATISFIED BY THE PROCEEDS
OF THE SALE OF HIS EXCLUSIVE PROPERTY
WHICH WERE ALL APPROPRIATED BY THE . . .
RESPONDENTS.
The petition lacks merit.
Petitioner admits being obliged, as father, to provide
support to both respondents, Maowee and Maonaa. It is
his threshold submission, however, that he should not be
made to pay support in arrears, i.e., from 1976 to 1994,
no previous extrajudicial, let alone judicial, demand
having been made by the respondents. He invokes the
following provision of the Family Code to complete his
point:
Article 203—The obligation to give support shall be
demandable from the time the person who has a right to
receive the same needs it for maintenance, but it shall not
8
be paid except from the date of judicial or extrajudicial
demand.
To petitioner, his obligation to pay under the aforequoted
provision starts from the filing of Civil Case No. 22185 in
1995, since only from that moment can it be said that an
effective demand for support was made upon him.
Petitioner’s above posture has little to commend itself.
For one, it conveniently glossed over the fact that he
veritably abandoned the respondent sisters even before
the elder of the two could celebrate her second birthday.
To be sure, petitioner could not plausibly expect any of
the sisters during their tender years to go through the
motion of demanding support from him, what with the
fact that even their mother (his wife) found it difficult
during the period material to get in touch with him. For
another, the requisite demand for support appears to
have been made sometime in 1975. It may be that Lea
made no extrajudicial demand in the sense of a formal
written demand in terms and in the imperious tenor
commonly used by legal advocates in a demand letter.
Nonetheless, what would pass as a demand was,
however, definitely made. Asking one to comply with his
obligation to support owing to the urgency of the situation
is no less a demand because it came by way of a request
or a plea. As it were, the trial court found that a demand
to sustain an award of support in arrears had been made
in this case and said so in its decision, thus:
From 1976, [respondents’] mother now and then went to
their [paternal] grandmother’s house by their father and
asked for support; this notwithstanding their father’s
commitment for this purpose which the latter embodied
in a note dated December 10, 1975. For twenty-one years
that they needed support, [petitioner] complied with his
obligation for only two (2) years.
xxx xxx xxx
Last December 10, 1975, [petitioner] committed self for
the support of his children, the [respondents] herein but
failing, plaintiffs’ mother asked extrajudicially for her
children’s support since 1976, when she went to her
mother’s house. . . . .8 (Words in bracket and italics
added.)
The appellate court made a parallel finding on the
demand angle, formulating the same in the following
wise:
“We could not confer judicial approval upon [petitioner’s]
posture of trying to evade his responsibility to give
support to his daughters simply because their mother did
not make a “formal” demand therefor from him. [Peti-
tioner’s] insistence on requiring a formal demand from his
wife is truly pointless, in the face of his acknowledgment
of and commitment to comply with such obligation
through a note in his own handwriting. Said note [stating
that he will “sustain his two daughters Maowee and
Maonaa”] also stated “as requested by their mother” thus
practically confirming the fact of such demand having
been made by [respondents’] mother. The trial court thus
correctly ruled that [petitioner’s] obligation to pay support
in arrears should commence from 1976.” (Words in
bracket added)
The Court finds no adequate reason to disturb the factual
determination of the CA confirmatory of that of the trial
court respecting the demand Lea made on the petitioner
to secure support for the respondents. As a matter of long
9
and sound appellate practice, factual findings of the CA
are accorded respect, if not finality, save for the most
compelling and cogent reasons. Not one of the well-
recognized exceptions to this rule on conclusiveness of
factual findings appear to obtain in this case.
Accordingly, the Court cannot grant the petitioner’s plea
for a review of the CA’s findings bearing on the actuality
that, as basis for an award of support in arrears, an
extrajudicial demand for support had been made on the
petitioner as evidenced by the December 10, 1975 note
adverted to. Lest it be overlooked, the jurisdiction of the
Court in a petition for review, as here, is generally limited
to correction of errors of law. Complementing that
postulate is the rule that the Court is not bound to
analyze and weigh all over again the evidence already
considered in the proceedings below,11 except when, as
earlier indicated, compelling reasons demand a review of
the factual conclusions drawn from such evidence.
Petitioner’s second specification of error touches on
the CA’s affirmatory holding that respondents’ uncle, Noel
Daban, advanced the money for their support. Again,
petitioner’s lament on the matter is a veritable call for
review of factual determinations of the two courts below.
It need not, accordingly, detain us long. Suffice it to state
in that regard that, of their close relatives, the
respondents appeared to have stayed longest with their
uncle, Noel Daban. Noteworthy also is the fact that
petitioner, from 1976 to 1994, only gave Maowee and
Maonaa token amounts for schooling when support
comprises everything indispensable for sustenance,
dwelling, clothing, medical attendance and
education,12 or, in short, whatever is necessary to keep a
person alive. Logically, the sisters would, thru their
mother, turn to their uncle (Noel Daban) for their
sustenance and education when petitioner failed to give
the same, a failing which stretched from their pre-
schooling days to their college years. Since such failure
has been established, it is not amiss to deduce, as did the
trial court and the CA, that Noel Daban who, owing to
consideration of kinship, had reasons to help, indeed lent
his sister Lea money to support her children.
Pursuant to Article 207 of the Family Code, Noel
Daban can rightfully exact reimbursement from the
petitioner. The provision reads:
“When the person obliged to support another unjustly
refuses or fails to give support when urgently needed by
the latter, any third person may furnish support to the
needy individual, with right of reimbursement from the
person obliged to give support.”
Mention may also be made that, contextually, the
resulting juridical relationship between the petitioner and
Noel Daban is a quasi-contract, an equitable principle
enjoining one from unjustly enriching himself at the
expense of another.
As for the amount of support in arrears, there is also
no reason to disturb the absolute figures arrived at by the
two courts below, appearing as they do to be reasonable
and proper. Arbitrariness respecting the determination of
the final numbers cannot plausibly be laid on the
doorsteps of the CA, and the trial court before it,
considering that they fixed such amount based on the
varying needs of the respondents during the years
included in the computation and to the financial
resources of the petitioner, as proved by the evidence
adduced below. As a matter of law, the amount of support
which those related by marriage and family relationship
is generally obliged to give each other shall be in
10
proportion to the resources or means of the giver and to
the needs of the recipient. Petitioner closes his petition by
urging the Court, as it did the CA earlier, to consider a
transaction that transpired after the trial court had
rendered judgment. We refer to the sale by Lea of half of
what petitioner claims to be his exclusive or capital
property. As the petitioner would have this Court believe,
Lea and the respondent sisters appropriated the P5
Million proceeds of the sale for themselves. Pressing on,
he alleged that the amount thus received from the sale is
more than enough to fully satisfy—thus release him from
complying with the underlying judgment for support,
assuming ex gratia argu-menti his obligation to pay
support in arrears.
Petitioner’s above submission is flawed by the
premises holding it together. For firstly, it assumes as a
fact that what was sold for P5 Million was indeed his
exclusive property. But, as the CA aptly observed, “there
is no showing whether the property subject of the
transaction mentioned by [the petitioner] is a conjugal
property or [his] exclusive property,” as in fact
“[respondents’] mother asserts that she and [petitioner]
had separately sold their respective shares on said
property.”15
Secondly, the respondent sisters were not party to the
sale aforementioned. Petitioner’s suggestion, therefore,
that part of the proceeds of the sale went to them and may
be set off for what petitioner owes them by way of support
in arrears is unacceptable, being at best gratuitous and
self-serving.
Petitioner, unlike any good father of a family, has been
remiss in his duty to provide respondents with support
practically all throughout their growing years. At bottom,
the sisters have been deprived by a neglectful father of
the basic necessities in life as if it is their fault to have
been born. This disposition is thus nothing more than a
belated measure to right a wrong done the herein
respondents who are no less petitioner’s daughters.
WHEREFORE, the instant petition is DENIED and the
appealed CA decision and resolution are AFFIRMED.
Costs against petitioner.
Puno (Chairperson), Sandoval-
Gutierrez, Corona and Azcuna, JJ., concur.
Petition denied, appealed decision and resolution
affirmed.
Notes.—Future support cannot be the subject of a
compromise. 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. (De Asis vs. Court of
Appeals, 303 SCRA 176 [1999])
Resemblance between a minor and his alleged parent
is competent and material evidence to establish
parentage.
TITLE IX. PARENTAL AUTHORITY (209-233)
SALIENTES vs. ABANILLA
Habeas Corpus; In a petition for habeas corpus, the
child’s welfare is the supreme consideration.—In a petition
for habeas corpus, the child’s welfare is the supreme
consideration. The Child and Youth Welfare Code
11
unequivocally provides that in all questions regarding the
care and custody, among others, of the child, his welfare
shall be the paramount consideration.
Same; 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.—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 of
A.M. 03-04-04-SC 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.
Facts:
• Loran Abanilla and Marie Salientes are the parents
of the minor, Lorenzo. They loved with Marie's
parents. Due to in-law problems, Abanilla
suggested to his wife that they transfer to their own
house, but Salientes refused. Abanilla left the
house and was thereafter prevented from seeing
his son.
• Abanilla, in his personal capacity and as a
representative of his son, filed a petition for habeas
corpus and custody before the RTC of Muntinlupa
City. The trial court ordered the Salienteses to
produce and bring before the court the body of
Lorenzo, and to show cause why the child should
not be discharged from restraint.
• Salienteses filed a petition for certiorari with the
CA, but it was dismissed. CA stated that the order
of the trial court did not award custody but was
simply a standard order issued for the production
of restrained persons. The trial court was still
about to conduct a full inquiry. A subsequent MR
was likewise denied.
• Salienteses filed the current appeal by certiorari.
Issue:
1. Whether the CA erred in dismissing the petition for
certiorari against the trial court's order
2. Whether the remedy of the issuance of a writ of
habeas corpus is available to the father
Ruling:
1. The CA rightfully dismissed the petition for certiorari
• Salientes:
o the order is contrary to 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
o 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
12
 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.
• Abanilla:
o the writ of habeas corpus is available
against any person who restrains the
minor’s 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
o 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.
• The CA was correct in holding that the 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 court’s
full inquiry into the issue of custody, which was
still pending before it.
• 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.
2. Habeas corpus is available to the father
• Habeas corpus may be resorted to in cases where
rightful custody is withheld from a person entitled
thereto. Under Article 211 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
respondent’s cause of action is the deprivation of
his right to see his child as alleged in his petition.
Hence, the remedy of habeas corpus is available to
him.
• 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 respondent’s 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.
13

Green Notes
Under Article 211 of the FC, the father and mother have
joint parental authority and custody over their son.
Having been deprived of the right to see his child, the
remedy of habeas corpus is available to the father.
Beckett vs. Sarmiento
Recit Ready:
Geoffrey Beckett, an Australian was married to Eltesa, a
Filipina and out of marriage, Geoffrey Beckett Jr. was
born. They separated and sued each other. The couple’s
legal battle ended when Judge Sarmiento rendered
judgment based on a compromise agreement. They
agreed that Beckett shall have full and permanent
custody over Geoffrey Jr, subject to visitation rights of
Eltesa. Beckett left for Australia with Geoffrey Jr. but
agreed to visit Eltesa every Christmas. In the 2011 visit,
Eltesa failed to return the custody of Geoffrey Jr. to
Beckett prompting him to file a case against Eltesa in
violation of R.A 7160 and for the turnover of Geoffrey Jr
under his custody. Judge Sarmiento rendered a judgment
granting the custody to Becket but issued another order
giving Eltesa provisional custody over Geoffrey. Held: In
disputes concerning post-separation custody over a
minor, the well-settled rule is that no child under seven
years of age shall be separated from the mother, unless
the court finds compelling reasons to order otherwise.
And if already 7 years of age, the child’s choice as to which
parents he prefers shall be respected, unless the parent
chosen proves to be unfit. Further, in all actions
concerning children, whether undertaken by public or
private social institutions, courts of law, administrative
authorities or legislative bodies, the best interest of the
child shall be a primary consideration. A custody
agreement can never be regarded as a “permanent and
unbending”, such that agreement would no longer be
to the child’s best interest. Thus, Judge Sarmiento is
correct in granting the custody of Geoffrey Jr. to Eltesa.
Facts:
• Beckett, an Australian national, was previously
married to Eltesa, a Filipina. Their union produced
a child, Geoffrey Beckett, Jr.
• They eventually separated and, worse, sued each
other. In 2006, Eltesa filed a case against Beckett
for violation of RA 7610, followed by a suit for the
declaration of nullity of their marriage. Both cases
ended in the sala of respondent Judge Sarmiento.
While Beckett commenced criminal charges for
adultery against Eltesa.
• Respondent judge rendered judgment based on a
compromise agreement in which Eltesa and
Beckett agreed and undertook, among others, to
cause the dismissal of all pending civil and
criminal cases each may have filed against the
other. They categorically agreed too that Beckett
shall have full and permanent custody over
Geoffrey, Jr., then five (5) years old, subject to the
visitorial rights of Eltesa.
• Thereafter, Beckett left for Australia, taking
Geoffrey, Jr. with him. As with his three other
children from previous relationships.
14
• Moreover, as agreed upon, they would come and
see Eltesa in Cebu every Christmas.
• In 2007, Beckett obtained a divorce from Eltesa in
Australia. This notwithstanding, the yearly
Christmas visits continued.
• In the 2010 visit, Beckett consented to have
Geoffrey, Jr. stay with Eltesa even after the
holidays, provided she return the child on January
9, 2011. January 9 came and went but Geoffrey,
Jr. remained with Eltesa, prompting Beckett to file
a petition against Eltesa for violation of RA 7610.
The petition was again raffled to the sala of Judge
Sarmiento.
• Judge Sarmiento denied all the allegations against
• Beckett later applied for the issuance of a writ of
habeas corpus. Beckett further relates that,
during the March 1, 2011 conference on the
application for habeas corpus, Geoffrey, Jr., then
nine (9) years old, displayed inside the courtroom
hysterical conduct, shouting and crying, not
wanting to let go of Eltesa and acting as though,
he, the father, was a total stranger. Despite
Geoffrey Jr.’s outburst, Judge Sarmiento issued an
Order, dated March 1, 2011, directing inter alia the
following: (1) Eltesa to return Geoffrey, Jr. to
Beckett; and (2) Beckett to bring the child in the
pre-trial conference. Beckett sought the immediate
implementation of the said March 1, 2011 Order.
• But instead of enforcing said order, Judge
Sarmiento issued another order giving Eltesa
provisional custody over Geoffrey, Jr. and at the
same time directing DSWD to conduct a social case
study on the child.
• It is upon the foregoing that Beckett has instituted
the complaint, arguing that respondent judge is
liable for (1) gross ignorance of the law for granting
Eltesa provisional custody over Geoffrey Jr.; and
(2) partiality by committing acts of serious
misconduct and irregularities in the performance
of official duties. Beckett predicates his charge of
dereliction and neglect of duty on respondent’s
alleged failure to resolve his motion for
reconsideration of the March 15, 2011 order giving
provisional custody of his child to his mother. He
further states that the earlier decision of
respondent judge, constitutes res judicata or a bar
to him to pass upon the issue of custody.
him. According to him, he deferred judgment on
Geoffrey’s motion to await the report of the social
worker who conducted the case study report, and
denied complainant’s motion for reconsideration
upon receipt of the report which recommended
that Geoffrey Jr stay with his mother. The reports
noted that (1) complainant always leaves him
(Geoffrey Jr) to the care of his older half-brother or
his father’s girlfriends; (2) he was at one time sent
out of the house by one of complainant’s girlfriends
and he had to stay in the garage alone; and (3) he
never wanted to stay with complainant whom he
feared and who once locked him in his room
without food. In their respective reports, Dr. Obra
and Dr. Saycon, a psychiatrist, both strongly
recommended that custody over Geoffrey, Jr. be
given to Eltesa. He also denied being partial
towards Eltesa.
15
Issue: Whether respondent Judge Sarmiento is guilty of
gross ignorance of the law.
Held: No.
• Respondent judge cannot be held guilty of the
charges hurled by the complainant against him for
the reason that absent a finding of strong reasons
to rule otherwise, the preference of a child over 7
years of age as to whom he desired to live with shall
be respected.
• Respondent judge, in granting provisional custody
over Geoffrey, Jr. in favor of his mother, Eltesa, did
not disregard the res judicata rule. The more
appropriate description of the legal situation
engendered by the March 15, 2011 Order issued
amidst the persistent plea of the child not to be
returned to his father, is that respondent judge
exhibited fidelity to jurisprudential command
to accord primacy to the welfare and interest of
a minor child.
• As it were, the matter of custody, to borrow from
Espiritu v. Court of Appeals, "is not permanent
and unalterable and can always be re-examined
and adjusted." And as aptly observed in a separate
opinion in Dacasin v. Dacasin, a custody
agreement can never be regarded as
"permanent and unbending," the simple reason
being that the situation of the parents and even
of the child can change, such that sticking to
the agreed arrangement would no longer be to
the latter’s best interest. In a very real sense,
then, a judgment involving the custody of a
minor child cannot be accorded the force and
effect of res judicata.
• Now to another point. In disputes concerning post-
separation custody over a minor, the well-settled
rule is that no child under seven (7) years of age
shall be separated from the mother, unless the
court finds compelling reasons to order
otherwise. And if already over 7 years of age, the
child’s choice as to which of his parents he prefers
to be under custody shall be respected, unless the
parent chosen proves to be unfit.
• Finally, in Perez v. Court of Appeals, it was held
that in custody cases, the foremost consideration
is always the welfare and best interest of the child,
as reflected in no less than the U.N. Convention on
the Rights of the Child which 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."
• Moreover, custody, even if previously granted by a
competent court in favor of a parent, is not, to
reiterate, permanent. In Espiritu, it was ruled that
“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 x x x. 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.”
16
 CHAPTER 2. SUBSTITUTE AND SPECIAL
PARENTAL AUTHORITY (216-219)
Bagtas vs. Hon. Santos
Civil Law; Special Proceedings; Habeas Corpus; The
purpose of a petition for habeas corpus is not limited to the
production of the child before the court. The main purpose
of the petition for habeas corpus is to determine who has
the rightful custody over the child.—Section 1, Rule 102,
of the Rules of Court states that the writ of habeas
corpus shall extend to all cases where the rightful custody
of any person is withheld from the persons entitled
thereto. In cases involving minors, the purpose of a
petition for habeas corpus is not limited to the production
of the child before the court. The main purpose of the
petition for habeas corpus is to determine who has the
rightful custody over the child.
Same; Same; Same; Petitioner is not estopped from
questioning the absence of a trial considering that said
psychiatric report, which was the court’s 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.—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 court’s 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.
Same; Same; Same; The Court laid down three
requisites in petitions for habeas corpus involving minors:
(1) the petitioner has the right of custody over the minor, (2)
the respondent is withholding the rightful custody over the
minor, and (3) the best interest of the minor demands that
he or she be in custody of the petitioner.—In Sombong, 252
SCRA 663 (1996), the Court laid down three requisites in
petitions for habeas corpus involving minors: (1) the
petitioner has a right of custody over the minor, (2) the
respondent is withholding the rightful custody over the
minor, and (3) the best interest of the minor demands that
he or she be in the custody of the petitioner. In the
present case, these requisites are not clearly established
because the RTC hastily dismissed the action and
awarded the custody of Maryl Joy to the Spouses Gallardo
without conducting any trial.
Facts: Antonio and Rosita S. Gallardo (Spouses Gallardo)
are the parents of Maricel S. Gallardo (Maricel). Two
weeks after graduating from high school in April 2000,
Maricel ran away to live with her boyfriend. She became
pregnant and gave birth to Maryl Joy S. Gallardo (Maryl
Joy). Maricel’s boyfriend left her.
In February 2002, Maricel returned to her parents but,
on the same day, ran away and lived with Noel Bagtas
and Lydia Sioson in Antipolo City. She went to Negros
Occidental and left her daughter in the custody of Bagtas
and Lydia. She wrote a letter dated February 5, 2001
relinquishing her rights over Maryl Joy.
17
(Letter: Ako po si Maricel S. Gallardo 18 taong gulang ay
kusang ipinagkaloob ang aking anak sa pagkadalaga sa
mag-asawang Noel B. Bagtas at Neneth A. Bagtas sa
kadahilanan pong itinakwil ako ng sarili kong mga
magulang at hindi ko po kayang buhayin at dahil po sa
tinakbuhan ako ng aking boyfriend kaya wala na pong
ibang paraan para ako makabangon o makapagsimula ng
panibagong buhay kaya para mabigyan ng magandang
buhay ang aking anak inisip ko po na ito na ang pinaka
madaling paraan para po sa pagbabago ng aking buhay.
Kaya mula sa araw na ito ay wala na akong karapatan sa
aking anak. Sila ang tatayo bilang magulang ng aking
anak.)
In April 2002, Spouses Gallardo tried to obtain the
custody of Maryl Joy but Bagtas and Sioson refused.
Thus, they filed a petition for habeas corpus with the RTC
which ordered Bagtas and Sioson to explain why they
were withholding the custody of Maryl Joy. Eventually,
both parties entered into agreement on the following:
1. the child should be placed in custody of the
petitioners on Friday, Saturday and Sunday;
2. that the child should be returned to the
respondents by the petitioners on Sunday at
8:00 o’clock in the evening subject to visitorial
rights of the petitioners anytime of the day; and
3. that the child can be brought by the
respondents to Valenzuela but should be
returned to the petitioners on Friday morning.
Notwithstanding the agreement, Rosita brought Maryl
Joy to Samar. Thus, Bagtas and Sioson filed a motion
against the spouses to produce the body of Maryl Joy and
they be cited in contempt for failing to comply with the
agreement. They also pray for the dismissal of the petition
for habeas corpus filed by Spouses Gallardo invoking
Section 3, Rule 17 of the Rules of Court which states that
“If, for no justifiable cause, the plaintiff fails x x x to
comply with x x x any order of the court, the complaint
may be dismissed upon motion of the defendant or upon
the court’s own motion."
RTC cited the spouses in contempt and dismissed the
petition for habeas corpus of Spouses for being moot and
academic as the subject of the petition has already been
produced to the court and turned over to the them.
Not satisfied with how the RTC ruled the case, Bagtas and
Sioson filed a motion for reconsideration contending that
the RTC should have dismissed the case based on Rules
of Court, not on mootness, with prayer that Maryl Joy be
returned to them. They averred that RTC issued a
conflicting order because it cited the Spouses for
contempt for violating the agreement and yet they
dismissed the habeas corpus for being moot and
academic. This, according to them, in effect give premium
to the act of Gallrdo’s not turning over the child to Bagtas
and Sioson,
RTC denied the motion for reconsideration on the sole
purpose that the petition for habeas corpus was the
production of Maryl Joy and that the Spouses Gallardo
exercised substitute parental authority. They contended
that the action filed by Bagtas and Sioson does not
constitute grounds for habeas corpus but of determining
who has the custody over the child. However, it is clear
that Spouses Gallardo are, under the law (Art. 214,
Family Code), authorized to exercise substitute parental
authority over the child in case of death, absence or
unsuitability of the parents, the entitlement to the legal
18
custody of the child being necessarily included therein to
make possible and/or enable the petitioners to discharge
their duties as substitute parents.
Bagtas filed with the CA a petition for certiorari but it was
dismissed. According to the court, Spouses Gallardo
obtained initial custody of the minor in violation of a valid
court order however, they can exercise substitute
parental authority over her as they are the grandparents.
Furthermore, they contended that:
In custody cases involving minors, the question
of illegal or involuntary restraint is not the
underlying rationale for the availability of the
writ of habeas corpus as a remedy; rather, the
writ is prosecuted for the purpose of
determining the right of custody of a child. By
dismissing the petition, the trial court in effect
upheld Gallardos’ right of custody over the minor
involved as against that of Bagtas.
Hence, this petition.
Issue/s: Whether or not the court erred in upholding the
right of the Spouses over the custody of the minor vis-a
vis the dismissal of the petition for habeas corpus?
Ruling: No. The CA erred in affirming the Orders of the
RTC. Section 1, Rule 102 of the Rules of Court provides
that the writ of habeas corpus shall extend to all cases
where the rightful custody of any person is withheld from
the persons entitled thereto. In cases involving minors,
the purpose of thus petition is not limited to the
production of the child before the court. However, it is to
determine who has the rightful custody over the child.
In Tijing v. Court of Appeals, the Court held that habeas
corpus is the proper legal remedy to enable parents to
regain the custody of a minor child even if the latter be
in the custody of a third person of his own free will. It may
even be said that in custody cases involving minors, the
question of illegal and involuntary restraint of liberty
is not the underlying rationale for the availability of
the writ as a remedy. Rather, it is prosecuted for the
purpose of determining the right of custody over a
child.
The RTC erred when it hastily dismissed the action for
having become moot after Maryl Joy was produced before
the trial court. It should have conducted a trial to
determine who had the rightful custody over Maryl Joy.
In dismissing the action, the RTC, in effect, granted the
petition for habeas corpus and awarded the custody of
Maryl Joy to the Spouses Gallardo without sufficient
basis.
Mindful of the nature of the case, 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 court’s 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. (Laxamana vs Laxamana)
19
Though, it is true that Article 214 of the Civil Code states
that in case of absence or unsuitability of the parents,
substitute parental authority shall be exercised by the
surviving grandparent. Article 216 also states that in
default of parents or a judicially appointed guardian,
the surviving grandparent shall exercise substitute
parental authority over the child. However, in
determining who has the rightful custody over a child,
the child’s welfare is the most important
consideration. The court is not bound by any legal
right of a person over the child.
The controversy does not involve the question of
personal freedom, because an infant is presumed
to be in the custody of someone until he attains
majority age. In passing on the writ in a child
custody case, the court deals with a matter of an
equitable nature. Not bound by any mere legal
right of parent or guardian, the court gives his
or her claim to the custody of the child due
weight as a claim founded on human nature and
considered generally equitable and just.
Therefore, these cases are decided, not on the
legal right of the petitioner to be relieved from
unlawful imprisonment or detention, as in the
case of adults, but on the court’s view of the
best interests of those whose welfare requires
that they be in custody of one person or
another. Hence, the court is not bound to deliver
a child into the custody of any claimant or of any
person, but should, in the consideration of the
facts, leave it in such custody as its welfare at the
time appears to require. (Sombong vs CA)
The Child and Youth Welfare Code unequivocally provides
that in all questions regarding the care and custody,
among others, of the child, his welfare shall be the
paramount consideration. In the same vein, the Family
Code authorizes the courts to, if the welfare of the
child so demands, deprive the parents concerned of
parental authority over the child or adopt such
measures as may be proper under the circumstances.
In Sombong, the Court laid down three requisites in
petitions for habeas corpus involving minors:
(1) the petitioner has a right of custody over the
minor,
(2) the respondent is withholding the rightful
custody over the minor, and
(3) the best interest of the minor demands that he
or she be in the custody of the petitioner.
These requisites are not clearly established in the
present case because the RTC hastily dismissed the
action and awarded the custody of Maryl Joy to the
Spouses Gallardo without conducting any trial.
DISPOSITION: Case remanded for the purpose of
receiving evidence to determine the fitness of the
Gallardo’s to have custody of Maryl Joy.
Vancil vs. Belmes
Civil Law; Guardianship; Respondent, being the
natural mother of the minor, has the preferential right over
that of petitioner to be his guardian.—We agree with the
ruling of the Court of Appeals that respondent, being the
natural mother of the minor, has the preferential right
over that of petitioner to be his guardian. This ruling finds
20
support in Article 211 of the Family Code which provides:
“Art. 211. The father and the mother shall jointly exercise
parental authority over the persons of their common
children. In case of disagreement, the father’s decision
shall prevail, unless there is a judicial order to the
contrary, x x x.”
Same; Same; Petitioner, as the surviving grandparent,
can exercise substitute parental authority only in case of
death, absence or unsuitability of respondent.—Petitioner,
as the surviving grandparent, can exercise substitute
parental authority only in case of death, absence or
unsuitability of respondent. Considering that respondent
is very much alive and has exercised continuously
parental authority over Vincent, petitioner has to prove,
in asserting her right to be the minor’s guardian,
respondent’s unsuitability. Petitioner, however, has not
proffered convincing evidence showing that respondent is
not suited to be the guardian of Vincent.
Same; Same; Courts should not appoint persons as
guardians who are not within the jurisdiction of our
courts.—Significantly, this Court has held that courts
should not appoint persons as guardians who are not
within the jurisdiction of our courts for they will find it
difficult to protect the wards.
Facts:
Petitioner is the mother of Reeder C. Vancil, a Navy
serviceman of the United States of America who died in
the said country on December 22, 1986. During his
lifetime, Reeder had two children named Valerie and
Vincent by his common-law wife, Helen G. Belmes.
Petitioner commences before the RTC a guardianship
proceeding over the persons and properties of minors
Valerie, 6 years old and Vincent, 2 years old. She was
appointed legal and judicial guardian over the persons
and estate of said children. The natural mother of the
minors, herein respondent, submitted an opposition to
the subject guardianship proceedings asseverating that
she had already filed a similar petition for guardianship.
The trial court rejected and denied Belmes’ motion to
remove and/or to disqualify Bonifacia as guardian. The
subsequent attempt for reconsideration was likewise
dismissed. On appeal, the Court of Appeals reversed the
decision of the RTC.
Issue:
Who between the mother and grandmother of
minor Vincent should be his guardian.
Held:
Article 211 of the Family Code provides that the
father and the mother shall jointly exercise parental
authority over the persons of their common children. In
case of disagreement, the father’s decision shall prevail,
unless there is a judicial order to the contrary. Indeed,
being the natural mother of minor Vincent, respondent
has the corresponding natural and legal right to his
custody. The ruling in Sagala-Eslao vs. Court of Appeals
is reiterated in this case that 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. Petitioner’s claim to be the
guardian of said minor can only be realized by way of
21
substitute parental authority pursuant to Article 214 of
the Family Code which states that in case of death,
absence or unsuitability of the parents, substitute
parental authority shall be exercised by the surviving
grandparent. The ruling in Santos, Sr. vs. Court of
Appeals is reiterated herein that the law vests on the
father and mother joint parental authority over the
persons of their common children. In case of absence or
death of either parent, the parent present shall continue
exercising parental authority. Only in case of the parents’
death, absence or unsuitability may substitute parental
authority be exercised by the surviving grandparent.
Hence, actual custody of and exercising parental
authority over minor Vincent is vested on the natural
mother.
ST. JOSEPH’S COLLEGE, et. al. vs. JAYSON
MIRANDA,
Civil Law; Negligence; Petitioners were negligent by
failing to exercise the higher degree of care, caution and
foresight incumbent upon the school, its administrators
and teachers.—As found by both lower courts, the
proximate cause of Jayson’s injury was the concurrent
failure of petitioners to prevent the foreseeable mishap
that occurred during the conduct of the science
experiment. Petitioners were negligent by failing to
exercise the higher degree of care, caution and foresight
incumbent upon the school, its administrators and
teachers.
Same; Same; The mishap which happened during the
science experiment was foreseeable by the school, its
officials and teachers.—In marked contrast, both the
lower courts similarly concluded that the mishap which
happened during the science experiment was foreseeable
by the school, its officials and teachers. This neglect in
preventing a foreseeable injury and damage equates to
neglect in exercising the utmost degree of diligence
required of schools, its administrators and teachers, and,
ultimately, was the proximate cause of the damage and
injury to Jayson. As we have held in St. Mary’s, “for
petitioner [St. Mary’s Academy] to be liable, there must be
a finding that the act or omission considered as negligent
was the proximate cause of the injury caused because the
negligence must have a causal connection to the
accident.”
Facts:
Jayson Val Miranda belonged was conducting a
science experiment about fusion of sulphur powder and
iron fillings under the tutelage of Rosalinda Tabugo, she
being the subject teacher and employee of SJC.
Tabugo left her class. In the middle of the
experiment, Jayson’s classmates checked the result of
the experiment by looking at the test tubes with a
magnifying glass. One of the group mates of Jayson held
the tubes close to his eyes. At that instance, the
compound in the test spured out and several particles of
which hit Jayson in his left eye and some of the body
parts of his group mates.
As a result of the incident, Jayson’s mother, who
was working abroad had to come home, spending money
for her fares and had to forego her salary. Then, too,
[Jayson] and his parents suffered sleepless nights, mental
anguish and wounded feelings as a result of his injury
due to fault and failure to exercise the degree of care and
22
diligence incumbent upon each one of them. Thus, they
should be held liable for moral damages. Also, [Jayson]
sent a demand letter to [petitioners] for the payment of
his medical expenses as well as other expenses incidental
thereto, which the latter failed to heed. Hence, [Jayson]
was constrained to file the complaint for damages.
[Petitioners], therefore, should likewise compensate
[Jayson] for litigation expenses, including attorney’s fees.
Petitioners make much of the fact that Tabugo
specifically instructed her students, including Jayson, at
the start of the experiment, not to look into the heated
test tube before the compound had cooled off. Petitioners
would allocate all liability and place all blame for the
accident on a twelve (12)-year-old student, herein
respondent Jayson.
Issue:
W/N the proximate cause of Jayson’s injury was
due to his own negligence making SJC not liable for
damages.
Held:
No. As found by both lower courts, the proximate
cause of Jayson’s injury was the concurrent failure of
petitioners to prevent the foreseeable mishap that
occurred during the conduct of the science experiment.
Petitioners were negligent by failing to exercise the higher
degree of care, caution and foresight incumbent upon the
school, its administrators and teachers.
Article 218 of the Family Code, in relation to Article 2180
of the Civil Code, bestows special parental authority on
the following persons with the corresponding obligation,
thus:
“Art. 218. The school, its administrators and teachers, or
the individual, entity or institution engaged in child care
shall have special parental authority and responsibility
over the minor child while under their supervision,
instruction or custody.
“Authority and responsibility shall apply to all authorized
activities whether inside or outside the premises of the
school, entity or institution.
“Art. 2180. The obligation imposed by Article 2176 is
demandable not only for one’s own acts or omissions, but
also for those of persons for whom one is responsible.
“ Lastly, teachers or heads of establishments of arts and
trades shall be liable for damages caused by their pupils
and students or apprentices, so long as they remain in
their custody.”
Petitioners negligence and failure to exercise the
requisite degree of care and caution is demonstrated by
the following:
1. Petitioner school did not take affirmative steps to avert
damage and injury to its students although it had full
information on the nature of dangerous science
experiments conducted by the students during class;
23
2. Petitioner school did not install safety measures to
protect the students who conduct experiments in class;
3. Petitioner school did not provide protective gears and
devices, specifically goggles, to shield students from
expected risks and dangers; and
4. Petitioner Tabugo was not inside the classroom the
whole time her class conducted the experiment,
specifically, when the accident involving Jayson occurred.
In any event, the size of the class of fifty (50) students
conducting the experiment is difficult to monitor.
Green Notes
During a science experiment about fusion of sulphur
powder and iron fillings with Rosalinda Tabugo as subject
teacher and employee of SJC,
Jayson looked into the test tube with a magnifying glass.
The compound in the test tube spurted out hitting
Jayson’s eyes and the different parts of the bodies of his
group mates. Jayson had to undergo surgery and had to
spend for his medication.
Were petitioners negligent, hence, liable for damages to
Jayson?
The proximate cause of Jayson’s injury was the
concurrent failure of petitioners to prevent the
foreseeable mishap that occurred during the science
experiment. Petitioners were negligent by failing to
exercise the higher degree of care, caution, and foresight
incumbent upon the school, its administrators and
teachers.
However, Jayson is partly responsible for his own injury,
hence, he should not be entitled to recover damages in
full but must bear the consequences of his own
negligence.
St. Mary’s Academy vs. Carpitanos
Schools and Universities; Persons and Institutions
With Special Parental Authority Over Minor Children; The
special parental authority and responsibility applies to all
authorized activities, whether inside or outside the
premises of the school, entity or institution.—Under Article
218 of the Family Code, the following shall have special
parental authority over a minor child while under their
supervision, instruction or custody: (1) the school, its
administrators and teachers; or (2) the individual, entity
or institution engaged in child care. This special parental
authority and responsibility applies to all authorized
activities, whether inside or outside the premises of the
school, entity or institution. Thus, such authority and
responsibility applies to field trips, excursions and other
affairs of the pupils and students outside the school
premises whenever authorized by the school or its
teachers. Under Article 219 of the Family Code, if the
person under custody is a minor, those exercising special
parental authority are principally and solidarily liable for
damages caused by the acts or omissions of the
unemancipated minor under their supervision,
instruction, or custody.
Same; Same; For a school to be liable, there must be a
finding that the act or omission considered as negligent
was the proximate cause of the injury caused because the
negligence must have a causal connection to the
accident.—For petitioner to be liable, there must be a
finding that the act or omission considered as negligent
24
was the proximate cause of the injury caused because the
negligence must have a causal connection to the accident.
“In order that there may be a recovery for an injury,
however, it must be shown that the ‘injury for which
recovery is sought must be the legitimate consequence of
the wrong done; the connection between the negligence
and the injury must be a direct and natural sequence of
events, unbroken by intervening efficient causes.’ In other
words, the negligence must be the proximate cause of the
injury. For, ‘negligence, no matter in what it consists,
cannot create a right of action unless it is the proximate
cause of the injury complained of.’ And ‘the proximate
cause of an injury is that cause, which, in natural and
continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without
which the result would not have occurred.’ ”
Same; Same; Words and Phrases; The proximate
cause of an injury is that cause, which, in natural and
continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which
the result would not have occurred.—Liability for the
accident, whether caused by the negligence of the minor
driver or mechanical detachment of the steering wheel
guide of the jeep, must be pinned on the minor’s parents
primarily. The negligence of petitioner St. Mary’s
Academy was only a remote cause of the accident.
Between the remote cause and the injury, there
intervened the negligence of the minor’s parents or the
detachment of the steering wheel guide of the jeep. “The
proximate cause of an injury is that cause, which, in
natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and
without which the result would not have occurred.”
Quasi-Delicts; Torts; Motor Vehicles; The registered
owner of any vehicle, even if not used for public service,
would primarily be responsible to the public or to third
persons for injuries caused the latter while the vehicle was
being driven on the highways or streets.—Incidentally,
there was no question that the registered owner of the
vehicle was respondent Villanueva. He never denied and
in fact admitted this fact. We have held that the registered
owner of any vehicle, even if not used for public service,
would primarily be responsible to the public or to third
persons for injuries caused the latter while the vehicle
was being driven on the highways or streets.” Hence, with
the overwhelming evidence presented by petitioner and
the respondent Daniel spouses that the accident occurred
because of the detachment of the steering wheel guide of
the jeep, it is not the school, but the registered owner of
the vehicle who shall be held responsible for damages for
the death of Sherwin Carpitanos.
Facts:
For the school year 1995-1996, St. Mary's Academy of
Dipolog City conducted an enrollment drive through
visitation of other schools where prospective high school
enrollees were studying. Among the students of SMA who
took part in the campaign was Sherwin and James.
Sherwin and other high school students were riding in a
Mitsubishi jeep owned by Vivencio Villanueva and driven
by James, then 15 years old. On their way to Dapitan
City, the jeep turned turtle resulting in the death of
Sherwin.
The parents of Sherwin thus sued James and his parents,
Vicente and SMA. At the trial, the traffic investigator
testified and submitted his report showing that the jeep
turned turtle because the steering wheel guide of the jeep
25
was detached. This report and the testimony of the traffic
investigator was not disputed by any of the parties.
After trial, the lower court held that the school is primary
liable for damages as it had special parental authority at
the time of the accident. The parents of Dino were found
to be only subsidiarily liable and were ordered to pay only
in the event of insolvency of the school. Dino was absolved
for being only a minor under the special
parental authority of the school. Vivencio, the vehicle
owner was not held liable at all.
Issue:
Was the lower court correct?
Held:
No.
Under Article 218 of the Family Code, the following shall
have special parental authority over a minor child while
under their supervision, instruction or custody: (1) the
school, its administrators and teachers; or (2) the
individual, entity or institution engaged in child care.
This special parental authority and
responsibility applies to all authorized activities, whether
inside or outside the premises of the school, entity or
institution. Thus, such authority and
responsibility applies to field trips, excursions and other
affairs of the pupils and students outside the school
premises whenever authorized by the school or its
teachers.
Under Article 219 of the Family Code, if the person under
custody is a minor, those exercising special
parental authority are principally and solidarily liable for
damages caused by the acts or omissions of the
unemancipated minor while under their supervision,
instruction, or custody.
However, for the school to be liable, there must be a
finding that the act or omission considered as negligent
was the proximate cause of the death or injury sustained.
Injury for which recovery is sought must be the legitimate
consequence of the wrong done. Negligence, no matter in
what it consists, cannot create a right of action unless it
is the proximate cause of the injury complained of. And
the proximate cause of an injury is that cause which, in
natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and
without which the result would not have occurred.
In this case, the parents of Sherwin failed to show that
the proximate cause of the accident was the negligence of
the school authorities. They admitted that the immediate
cause of the accident was not the negligence of SMA or
the reckless driving of James, but the detachment of the
steering wheel guide of the jeep. Hence reliance on Art.
219, of the Family Code is unfounded.
Further, it was Ched the grandson of the vehicle owner
Vivencio who allowed the minor James to drive the jeep
at the time of the accident. The school did not allow
James to drive the jeep. So whether the accident
was caused by the reckless driving of James or the
mechanical detachment of the steering wheel guide of the
jeep, the school could not be held liable since these are
events which it had no control. If the school may
be considered negligent, it was only the remote cause of
26
the accident. Between the remote cause and the injury,
there intervened the negligence of the minor’s parents or
the detachment of the steering wheel guide of the jeep.
At any rate, since it is clear that the accident occurred
because of the detachment of the steering wheel guide of
the jeep, it is not the school but the registered owner of
the vehicle who should be held responsible for damages
for the death of Sherwin. Registered owner of any vehicle,
even if not used for public service, would primarily be
responsible to the public or to third persons for
injuries caused the latter while the vehicle was being
driven on the highways or streets. (St. Mary’s Academy
vs. Carpitanos et. al G.R.143363, February 6,2002).
TITLE XI. SUMMARY JUDICIAL PROCEEDINGS IN
THE FAMILY LAW (238-253)
Republic vs. Granada
Civil Law; Family Code; Declaration of Presumptive
Death; Articles 41, 238, 247 and 253 of the Family Code
provide that since a petition for declaration of presumptive
death is a summary proceeding, the judgment of the court
therein shall be immediately final and executory.—Taken
together, Articles 41, 238, 247 and 253 of the Family
Code provide that since a petition for declaration of
presumptive death is a summary proceeding, the
judgment of the court therein shall be immediately final
and executory.
Civil Procedure; Appeals; Under Article 41 of the
Family Code, the losing party in a summary proceeding for
the declaration of presumptive death may file a petition for
certiorari with the Court of Appeals on the ground that, in
rendering judgment thereon, the trial court committed
grave abuse of discretion amounting to lack of
jurisdiction.—In sum, under Article 41 of the Family Code,
the losing party in a summary proceeding for the
declaration of presumptive death may file a petition
for certiorari with the CA on the ground that, in rendering
judgment thereon, the trial court committed grave abuse
of discretion amounting to lack of jurisdiction. From the
decision of the CA, the aggrieved party may elevate the
matter to this Court via a petition for review
on certiorari under Rule 45 of the Rules of Court.
Evidently then, the CA did not commit any error in
dismissing the Republic’s Notice of Appeal on the ground
that the RTC judgment on the Petition for Declaration of
Presumptive Death of respondent’s spouse was
immediately final and executory and, hence, not subject
to ordinary appeal.
Civil Law; Family Code; Declaration of Presumptive
Death; Requisites for the declaration of presumptive death
under the Family Code.—The four requisites for the
declaration of presumptive death under the Family Code
are as follows: 1. That the absent spouse has been
missing for four consecutive years, or two consecutive
years if the disappearance occurred where there is danger
of death under the circumstances laid down in Article
391, Civil Code; 2. That the present spouse wishes to
remarry; 3. That the present spouse has a well-founded
belief that the absentee is dead; and 4. That the present
spouse files a summary proceeding for the declaration of
presumptive death of the absentee.
DOCTRINE:
Even if the RTC erred in ruling that therespondent was
able to prove her “well-founded belief” that her absent
spouse was already dead, such order already final and
27
can no longer be modified or reversed. Indeed, “[n]othing
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.”
FACTS:
Cyrus and Yolanda Granada, both employees of Sumida
Electric Company, got married in 1993.
Sometime in May 1994, when Sumida Electric
Philippines closed down, Cyrus went to Taiwan to seek
employment. Yolanda claimed that from that time, she
did not receive any communication from her husband,
notwithstanding efforts to locate him. Her brother
testified that he had asked the relatives of Cyrus
regarding the latter’s whereabouts, to no avail.
After nine (9) years of waiting, Yolanda filed a Petition to
have Cyrus declared presumptively dead with the RTC
Lipa City. On 7 February 2005, the RTC rendered a
Decision declaring Cyrus as presumptively dead.
On 10 March 2005, petitioner Republic of the Philippines,
represented by the OSG, filed a Motion for
Reconsideration of this Decision. Petitioner argued that
Yolanda had failed to exert earnest efforts to locate Cyrus
and thus failed to prove her well-founded belief that he
was already dead. The motion was denied. The OSG then
elevated the case on appeal to the Court of Appeals.
Yolanda filed a Motion to Dismiss on the ground that the
CA had no jurisdiction over the appeal. She argued that
her Petition for Declaration of Presumptive Death, based
on Article 41 of the Family Code, was a summary judicial
proceeding, in which the judgment is immediately final
and executory and, thus, not appealable.
The appellate court granted Yolanda’s Motion to Dismiss
on the ground of lack of jurisdiction. Citing Republic v.
Bermudez-Lorino, the CA ruled that a petition for
declaration of presumptive death under Rule 41 of the
Family Code is a summary proceeding. Thus, judgment
thereon is immediately final and executory upon notice to
the parties.
Petitioner moved for reconsideration, which was denied.
Hence, the present petition under Rule 45.
ISSUES:
1. Whether the order of the RTC in a summary proceeding
for the declaration of presumptive death is immediately
final and executory upon notice to the parties and, hence,
is not subject to ordinary appeal.
2. Whether the CA erred in affirming the RTC’s grant of
the petition for declaration of presumptive death based on
evidence that respondent had presented.
HELD:
Yes, the declaration of presumptive death is finaland
immediately executory. Even if the RTC erred in granting
the petition, such order can no longer be assailed.
RATIO:
28
1. A petition for declaration of presumptive death of an
absent spouse for the purpose of contracting a
subsequent marriage under Article 41 of the Family Code
is a summary proceeding “as provided for” under the
Family Code. Taken together, Articles 41, 238, 247 and
253 of the Family Code provide that since a petition for
declaration of presumptive death is a summary
proceeding, the judgment of the court therein shall be
immediately final and executory.
By express provision of law, the judgment of the court in
a summary proceeding shall be immediately final and
executory. As a matter of course, it follows that no appeal
can be had of the trial court’s judgment in a summary
proceeding for the declaration of presumptive death of an
absent spouse under Article 41 of the Family Code. It goes
without saying, however, that an aggrieved party may file
a petition for certiorari to question abuse of discretion
amounting to lack of jurisdiction. Such petition should be
filed in the Court of Appeals in accordance with the
Doctrine of Hierarchy of Courts. To be sure, even if the
Court’s original jurisdiction to issue a writ of certiorari is
concurrent with the RTCs and the Court of Appeals in
certain cases, such concurrence does not sanction
an unrestricted freedom of choice of court forum. From
the decision of the Court of Appeals, the losing party may
then file a petition for review on certiorari under Rule 45
of the Rules of Court with the Supreme Court. This is
because the errors which the court may commit in
the exercise of jurisdiction are merely errors of judgment
which are the proper subject of an appeal.
In sum, under Article 41 of the Family Code, the losing
party in a summary proceeding for the declaration of
presumptive death may file a petition for certiorari with
the CA on the ground that, in rendering judgment
thereon, the trial court committed grave abuse of
discretion amounting to lack of jurisdiction. From the
decision of the CA, the aggrieved party may elevate the
matter to this Court via a petition for review on certiorari
under Rule 45 of the Rules of Court.
2. Petitioner also assails the RTC’s grant of the Petition
for Declaration of Presumptive Death of the absent
spouse of respondent on the ground that she had not
adduced the evidence required to establish a well-
founded belief that her absent spouse was already dead,
as expressly required by Article 41 of the Family Code.
For the purpose of contracting the subsequent marriage
under the preceding paragraph, the spouse 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 reappearance of the
absent spouse.
The spouse present is, thus, burdened to prove that his
spouse has been absent and that he has a well-founded
belief that the absent spouse is already dead before
the present spouse may contract a subsequent marriage.
The law does not define what is meant by a well-grounded
belief is a state of the mind or condition prompting the
doing of an overt act. It may be proved by direct evidence
or circumstantial evidence which may tend, even in a
slight degree, to elucidate the inquiry or assist to a
determination probably founded in truth. Any fact or
circumstance relating to the character, habits,
conditions, attachments, prosperity and objects of life
which usually control the conduct of men, and are the
motives of their actions, was, so far as it tends to explain
or characterize their disappearance or throw light on their
29
intentions, competence evidence on the
ultimate question of his death.
The belief of the present spouse must be the result of
proper and honest to goodness inquiries and efforts to
ascertain the whereabouts of the absent spouse and
whether the absent spouse is still alive or is already dead.
Whether or not the spouse present acted on a well-
founded belief of death of the absent spouse depends
upon the inquiries to be drawn from a great many
circumstances occurring before and after the
disappearance of the absent spouse and the nature and
extent of the inquiries made by present spouse.
(Footnotes omitted, underscoring supplied.)
Applying the foregoing standards to the present case,
petitioner points out that respondent Yolanda did not
initiate a diligent search to locate her absent husband.
While her brother Diosdado Cadacio testified to having
inquired about the whereabouts of Cyrus from the latter’s
relatives, these relatives were not presented to
corroborate Diosdado’s testimony. In short, respondent
was allegedly not diligent in her search for her husband.
Petitioner argues
that if she were, she would have sought information from
the Taiwanese Consular Office or assistance from other
government agencies in Taiwan or the Philippines. She
could have also utilized mass media for this end, but she
did not. Worse, she failed to explain these omissions.
The Republic’s arguments are well-taken. Nevertheless,
we are constrained to deny the Petition.
The RTC ruling on the issue of whether respondent was
able to prove her “well-founded belief” that her absent
spouse was already dead prior to her filing of the Petition
to declare him presumptively dead is already final and
can no longer be modified or reversed. Indeed, “[n]othing
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.
TITLE XII. RETROACTIVITY OF THE FAMILY CODE
(256)
Jarillo vs. People
Remedial Law; Civil Procedure; Family Code; Article
40 of the Family Code should be applied retroactively.—As
far back as 1995, in Atienza v. Brillantes, Jr., 243 SCRA
32 (1995), the Court already made the declaration
that Article 40, which is a rule of procedure, should be
applied retroactively because Article 256 of the Family
Code itself provides that said “Code shall have retroactive
effect insofar as it does not prejudice or impair vested or
acquired rights.” The Court went on to explain, thus: The
fact that procedural statutes may somehow affect the
litigants’ rights may not preclude their retroactive
application to pending actions. The retroactive
application of procedural laws is not violative of any
right of a person who may feel that he is adversely
affected. The reason is that as a general rule, no vested
right may attach to, nor arise from, procedural laws.
Same; Same; Same; Danger of not enforcing the
provisions of Article 40 of the Family Code pointed out in
Marbella-Bobis vs. Bobis, 336 SCRA 747 (2000).—
30
In Marbella-Bobis v. Bobis, 336 SCRA 747 (2000), the
Court pointed out the danger of not enforcing the
provisions of Article 40 of the Family Code, to wit: In the
case at bar, respondent’s clear intent is to obtain a
judicial declaration of nullity of his first marriage and
thereafter to invoke that very same judgment to prevent
his prosecution for bigamy. He cannot have his cake and
eat it too. Otherwise, all that an adventurous bigamist
has to do is disregard Article 40 of the Family Code,
contract a subsequent marriage and escape a bigamy
charge by simply claiming that the first marriage is void
and that the subsequent marriage is equally void for lack
of a prior judicial declaration of nullity of the first. A party
may even enter into a marriage aware of the absence of a
requisite—usually the marriage license—and thereafter
contract a subsequent marriage without obtaining a
declaration of nullity of the first on the assumption that
the first marriage is void. Such scenario would render
nugatory the provision on bigamy. x x x
PERALTA, J.:
This resolves petitioner’s Motion for
Reconsideration dated November 11, 2009 and
[1]
respondent’s Comment[2] thereto dated March 5, 2010.
In the Decision dated September 29, 2009, the Court
affirmed petitioner’s conviction for bigamy. Petitioner is
moving for reconsideration of the Decision, arguing that
since petitioner’s marriages were entered into before the
effectivity of the Family Code, then the applicable law is
Section 29 of the Marriage Law (Act 3613), instead of
Article 40 of the Family Code, which requires a final
judgment declaring the previous marriage void before a
person may contract a subsequent marriage.
Petitioner’s argument lacks merit.
As far back as 1995, in Atienza v. Brillantes, Jr.,[3] the
Court already made the declaration that Article 40,
which is a rule of procedure, should be applied
retroactively because Article 256 of the Family Code itself
provides that said “Code shall have retroactive effect
insofar as it does not prejudice or impair vested or
acquired rights.” The Court went on to explain, thus:
“The fact that procedural statutes may somehow
affect the litigants’ rights may not preclude their
retroactive application to pending
actions. The retroactive application of procedural
laws is not violative of any right of a person who may
feel that he is adversely affected. The reason is that as
a general rule, no vested right may attach to, nor arise
from, procedural laws.”[4]
In Marbella-Bobis v. Bobis,[5] the Court pointed out the
danger of not enforcing the provisions of Article 40 of the
Family Code, to wit:
“In the case at bar, respondent’s clear intent is to
obtain a judicial declaration of nullity of his first marriage
and thereafter to invoke that very same judgment to
prevent his prosecution for bigamy. He cannot have his
cake and eat it too. Otherwise, all that an adventurous
bigamist has to do is disregard Article 40 of the Family
Code, contract a subsequent marriage and escape a
bigamy charge by simply claiming that the first marriage
is void and that the subsequent marriage is equally void
for lack of a prior judicial declaration of nullity of the first.
31
A party may even enter into a marriage aware of the
absence of a requisite—usually the marriage license—and
thereafter contract a subsequent marriage without
obtaining a declaration of nullity of the first on the
assumption that the first marriage is void. Such scenario
would render nugatory the provision on bigamy. x x x”[6]
The foregoing scenario is what petitioner seeks to
obtain in her case, and this, the Court shall never
sanction. Clearly, therefore, petitioner’s asseveration,
that Article 40 of the Family Code should not be applied
to her case, cannot be upheld.
IN VIEW OF THE FOREGOING, the Motion for
Reconsideration dated November 11, 2009 is DENIED
with FINALITY.
TITLE XII. USE OF SURNAMES (364-380)
RA 9048. Clerical Error Law
RA 9255. An Act Allowing Illegitimate Children To
Use The Surname Of Their Father
ROMMEL SILVERIO vs. REPUBLIC
Change of Name; The State has an interest in the
names borne by individuals and entities for purposes of
identification; A change of name is a privilege, not a right.—
The State has an interest in the names borne by
individuals and entities for purposes of identification. A
change of name is a privilege, not a right. Petitions for
change of name are controlled by statutes. In this
connection, Article 376 of the Civil Code provides: ART.
376. No person can change his name or surname without
judicial authority.
Same; Clerical Error Law (RA 9048); Administrative
Law; Jurisdictions; RA 9048 now governs the change of
first name, and vests the power and authority to entertain
petitions for change of first name to the city or municipal
civil registrar or consul general concerned; 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—in sum, the remedy and the proceedings
regulating change of first name are primarily
administrative in nature, not judicial.—RA 9048 now
governs the change of first name. 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. It likewise lays down the
corresponding venue, form and procedure. In sum, the
remedy and the proceedings regulating change of first
name are primarily administrative in nature, not judicial.
Same; Same; Same; Same; Sex Change; A change of
name does not alter one’s legal capacity or civil status—
RA 9048 does not sanction a change of first name on the
ground of sex reassignment.— Petitioner’s basis in
32
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 one’s legal capacity or civil status. RA 9048
does not sanction a change of first name on the ground
of sex reassignment. Rather than avoiding confusion,
changing petitioner’s 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. In addition, he must show that he will be
prejudiced by the use of his true and official name. 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.
Facts:
Petitioner Rommel Jacinto Dantes Silverio filed a petition
for the change of his first name and sex in his birth
certificate in the RTC of Manila.
Petitioner alleged that he was born a man. He further
alleged that he is a male transsexual (anatomically male
but feels, thinks and acts as a female) and that he had
always identified himself with girls since childhood. That
he underwent a several medical procedures (hormone
treatment, breast augmentation, psychological
examination and sex reassignment surgery) to transform
himself to a woman.
During trial in the RTC, no opposition to the petition was
made. Therefore, TC rendered a decision in his favor;
thus, ordering the CIvil Registrar of Manila to change the
entries appearing in the Certificate of Birth of petitioner,
specifically his first name from Rommel to Mely and his
gender from Male to Female.
The Republic, thru the OSG, filed a petition for certiorari
in the CA. It alleged that there is no law allowing the
change of entries in the birth certificate by reason of sex
alteration.
CA rendered a decision favoring the Republic and
reversing the Decision of the RTC of Manila.
Hence, this petition.
Issue:
Whether sex reassignment surgery can be a ground for a
change in the entries of the local civil registrar as to the
first name and sex of the petitioner?
Held:
Petition is denied. A person’s first name and sex under
the cannot be changed on the ground of sex
reassignment.
Section 1 of RA 9048. (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 registar or consul
33
general in accordance with the provisions of this Act and
its implementing rules and regulations.
RA 9048 (Clerical Error Law) vest 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 the first name is now primarily lodged with the
aforementioned administrative officers.
GROUNDS for Change of First Name or Nickname
(Section 4, RA 9048 [Administrative Remedy]):
The petitioner finds the first name or nickname to be
ridiculous, tainted with dishonor or extremely difficult to
write or pronounce;
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
The change will avoid confusion.
NO LAW ALLOWS THE CHANGE OF ENTRY IN THE
BIRTH CERTIFICATE AS TO SEX ON THE GROUND OF
SEX REASSIGNMENT
RA 9048 removed from the ambit of Rule 108 the
correction of clerical or typographical error.
Green Notes
HELD: A person’s first name cannot be changed on the
ground of sex reassignment. No law allows the change of
entry in the birth certificate as to gender on the ground
of sex reassignment.
Republic vs Cagandahan
Civil Registry; Correction of Entries in Birth
Certificates; Clerical Error Law (R.A. No. 9048); R.A. 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.—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 of the Civil Code,
this provision was amended by Republic Act No. 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, 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.
Same; Same; 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; The acts, events or factual errors contemplated
under Article 407 of the Civil Code include even those that
occur after birth.—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. The entries envisaged in Article 412 of
34
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.
Facts:
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.
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.
e 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, adjusted to her chosen role as male, and the
gender change would be... advantageous to her.
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.
35
this petition by the Office of the Solicitor General (OSG)
seeking a reversal of the abovementioned ruling.
THE REQUIREMENTS OF RULES 103 AND 108 OF THE
RULES OF COURT HAVE NOT BEEN COMPLIED WITH
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."... 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]
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.
Issues:
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.
Ruling:
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.
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.
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
36
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.[
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.
Republic's petition is DENIED. The Decision dated
January 12, 2005 of the Regional Trial Court, Branch 33
of Siniloan, Laguna, is AFFIRMED
Green Notes
HELD: Where the person is biologically intersex, the
determining factor in his gender classification would be
what he, having reached majority age, with good reason,
thinks of his/her sex.
Remo vs Honorable Sec. of Foreign Affairs
Marriages; Husband and Wife; Surname; A married
woman has an option but not a duty, to use the surname
of the husband in any of the ways provided using her
maiden name once she is married because when a woman
marries, she does not change her name but only her civil
status.—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. 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.
Same; Same; Same; In the case of renewal of
passport, a married woman may either adopt her
husband’s surname or continuously use her maiden
name.—In the case of renewal of passport, a married
woman may either adopt her husband’s surname or
continuously use her maiden name. If she chooses to
adopt her husband’s 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.
Same; Same; Once a married woman opted to adopt
her husband’s surname in her passport, she may not
revert to the use of her maiden name; Exceptions.—Once a
married woman opted to adopt her husband’s 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 petitioner’s 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.
37
Facts: Remo is a married Filipino citizen whose PH
passport was then expiring October 2000. Being married
to Francisco Rallonza, the following entries appear in 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. Petitioner’s request having been denied, Atty.
Manuel Joseph R. Bretana III, representing petitioner,
wrote then Secretary of Foreign Affairs Domingo Siason
expressing a similar request. DFA denied the request
stating that although it is not obligatory for a married
woman to use her husband's name, the use of maiden
name is allowed in passport application only if the
married name has not been used in previous application.
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.
Petitioner filed an MR but was denied then filed an appeal
to the Office of the President but was dismissed.
Petitioner filed to the CA under Rule 43 but was denied.
Petitioner moved for reconsideration but denied.
Issue: Whether petitioner, who originally used her
husband’s surname in her expired passport, can revert to
the use of her maiden name in the replacement passport,
despite the subsistence of her marriage?
Ruling: No. 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. The court agrees 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.
When a woman marries a man, she need not apply
and/or seek judicial authority to use her husband’s name
by prefixing the word Mrs. before her husband’s full name
or by adding her husband’s 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 husband’s is optional and not obligatory for
her. 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.
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. 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.
However, petitioner’s 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. In
the case of renewal of passport, a married woman may
38
either adopt her husband’s surname or continuously use
her maiden name. If she chooses to adopt her husband’s
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. However, once a married woman opted to adopt
her husband’s 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. Since petitioner’s
married 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 the Civil Code which is a general
law on the use of surnames. A basic tenet in statutory
construction is that a special law prevails over a general
law. Thus, for passport issuance purposes, a married
woman, such as petitioner, whose marriage subsists, may
not change her family name at will.

39