SUPPORT

MANUEL DE ASIS, petitioner, 
vs.
COURT OF APPEALS, HON. JAIME T. HAMOY, Branch 130, RTC, Kalookan City and GLEN CAMIL
ANDRES DE ASIS represented by her mother/guardian VIRCEL D. ANDRES, respondents.

PURISIMA, J.:

Petition for certiorari under Rule 65 oft he Revised Rules of Court seeking to nullify the decision of the Court of
Appeals which affirmed the trial court's Orders, dated November 25, 1993 and February 4, 1994, respectively,
denying petitioner's Motion to Dismiss the Complaint in Civil Case No. C-16107, entitled "Glen Camil Andres de
Asis, etc. vs. Manuel de Asis", and the motion for reconsideration.

The pertinent facts leading to the filing of the petition at bar are as follows:

On October 14, 1988, Vircel D. Andres, (the herein private respondent) in her capacity as the legal guardian of the
minor, Glen Camil Andres de Asis, brought an action for maintenance and support against Manuel de Asis, docketed
as Civil Case No. Q-88-935 before the Regional Trial Court of Quezon City, Branch 94, alleging that the defendant
Manuel de Asis (the petitioner here) is the father of subject minor Glen Camil Andres de Asis, and the former
refused and/or failed to provide for the maintenance of the latter, despite repeated demands.

In his Answer, petitioner denied his paternity of the said minor and theorized that he cannot therefore be required to
provide support for him.

On July 4, 1989, private respondent Vircel D. Andres, through counsel, sent in a manifestation the pertinent portion
of which, reads;

1. That this proposed Amended Answer, defendant (herein petitioner) has made a judicial
admission/declaration that "1). defendant denies that the said minor child (Glen Camil) is his child
2) he (petitioner) has no obligation to the plaintiff Glen Camil . . .

2. That with the aforesaid judicial admission/declarations by the defendant, it seems futile and a
useless exercise to claim support from said defendant.

3. That under the foregoing circumstances it would be more practical that plaintiff withdraws the
complains against the defendant subject to the condition that the defendant should not pursue his
counterclaim in the above-entitled case, . . . 1

By virtue of the said manifestation, both the plaintiff and the defendant agreed to move for the dismissal of the case.
Acting thereupon, the Regional Trial Court a quo issued the following Order of August 8, 1989, dismissing Civil
Case No. Q-88-935 with prejudice, to wit:

Acting on the manifestation of Atty. Romualdo C. delos Santos, counsel for the defendant, that
counsel for the plaintiff Atty. Ismael J. Andres has no objection that this case be withdrawn
provided that the defendant will withdraw the counterclaim, as prayed for, let the case be
dismissed with prejudice.

SO ORDERED. 2

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

WHEREFORE, premises considered, it is respectfully prayed that judgment be rendered ordering

defendant:

1. To pay plaintiff the sum of not less than P2,000.00 per month for every month since June 1,
1987 as support in arrears which defendant failed to provide plaintiff shortly after her birth in June
1987 up to present;

2. To give plaintiff a monthly allowance of P5,000.00 to be paid in advance on or before the 5th of
each and every month.

3. To give plaintiff by way of support pendente lite a monthly allowance of P5,000.00 per month,
the first monthly allowance to start retroactively from the first day of this month and the
subsequent ones to be paid in advance on or before the 5th of each succeeding month.

4. To pay the costs of suit.

Plaintiff prays for such other relief just and equitable under the premises. 3

On October 8, 1993, petitioner moved to dismiss the Complaint on the ground of res judicata, alleging that Civil
Case C-16107 is barred by the prior judgment which dismissed with prejudice Civil Case Q -88-935.

In the Order dated November 25, 1993 denying subject motion to dismiss, the trial court ruled that res judicata is
inapplicable in an action for support for the reason that renunciation or waiver of future support is prohibited by law.
Petitioner's motion for reconsideration of the said Order met the same fate. It was likewise denied.

Petitioner filed with the Court of Appeals a Petition for Certiorari. But on June 7, 1996, the Court of Appeals found
that the said Petition devoid of merit and dismissed the same.

Undaunted, petitioner found his way to this court via the present petition, posing the question whether or not the
public respondent acted with grave abuse of discretion amounting to lack or excess of jurisdiction in upholding the
denial of the motion to dismiss by the trial court, and holding that an action for support cannot be barred by res
judicata.

To buttress his submission, petitioner invokes the previous dismissal of the Complaint for maintenance and support,
Civil Case Q-88-935, filed by the mother and guardian of the minor, Glen Camil Andres de Asis, (the herein private
respondent). In said case, the complainant manifested that because of the defendant's judicial declaration denying
that he is the father of subject minor child, it was "futile and a useless exercise to claim support from defendant".
Because of such manifestation, and defendant's assurance that he would not pursue his counterclaim anymore, the
parties mutually agreed to move for the dismissal of the complaint. The motion was granted by the Quezon City
Regional Trial Court, which then dismissed the case with prejudice.

Petitioner contends that the aforecited manifestation, in effect admitted the lack of filiation between him and the
minor child, which admission binds the complainant, and since the obligation to give support is based on the
existence of paternity and filiation between the child and the putative parent, the lack thereof negates the right to
claim for support. Thus, petitioner maintains that the dismissal of the Complaint by the lower court on the basis of
the said manifestation bars the present action for support, especially so because the order of the trial court explicitly
stated that the dismissal of the case was with prejudice.

The petition is not impressed with merit.

The right to receive support can neither be renounced nor transmitted to a third person. Article 301 of the Civil
Code, the law in point, reads:

Art. 301. The right to receive support cannot be renounced, nor can it be transmitted to a third
person. Neither can it be compensated with what the recipient owes the obligor. . . .

Furthermore, future support cannot be the subject of a compromise.

Art. 2035, ibid, provides, that:

No compromise upon the following questions shall be valid:

(1) The civil status of persons;

(2) The validity of a marriage or legal separation;

(3) Any ground for legal separation

(4) Future support;

(5) The jurisdiction of courts;

(6) Future legitime.

The raison d' etre behind the proscription against renunciation, transmission and/or compromise of the right to
support is stated, thus:

The right to support being founded upon the need of the recipient to maintain his existence, he is
not entitled to renounce or transfer the right for this would mean sanctioning the voluntary giving
up of life itself. The right to life cannot be renounce; hence, support which is the means to attain
the former, cannot be renounced.

xxx xxx xxx

To allow renunciation or transmission or compensation of the family right of a person to support is

virtually to allow either suicide or the conversion of the recipient to a public burden. This is
contrary to public policy. 4

In the case at bar, respondent minor's mother, who was the plaintiff in the first case, manifested that she was
withdrawing the case as it seemed futile to claim support from petitioner who denied his paternity over the child.
Since the right to claim for support is predicated on the existence of filiation between the minor child and the
putative parent, petitioner would like us to believe that such manifestation admitting the futility of claiming support
from him puts the issue to rest and bars any and all future complaint for support.

The manifestation sent in by respondent's mother in the first case, which acknowledged that it would be useless to
pursue its complaint for support, amounted to renunciation as it severed the vinculum that gives the minor, Glen
Camil, the right to claim support from his putative parent, the petitioner. Furthermore, the agreement entered into
between the petitioner and respondent's mother for the dismissal of the complaint for maintenance and support
conditioned upon the dismissal of the counterclaim is in the nature of a compromise which cannot be countenanced.
It violates the prohibition against any compromise of the right to support.
 Thus, the admission made by counsel for the wife of the facts alleged in a motion of the husband,
in which the latter prayed that his obligation to support be extinguished cannot be considered as an
assent to the prayer, and much less, as a waiver of the right to claim for support. 5

It is true that in order to claim support, filiation and/or paternity must first be shown between the claimant and the
parent. However, paternity and filiation or the lack of the same is a relationship that must be judicially established
and it is for the court to declare its existence or absence. It cannot be left to the will or agreement of the parties.

The civil status of a son having been denied, and this civil status, from which the right to support
is derived being in issue, it is apparent that no effect can be .given to such a claim until an
authoritative declaration has been made as to the existence of the cause. 6

Although in the case under scrutiny, the admission may be binding upon the respondent, such an admission is at
most evidentiary and does not conclusively establish the lack of filiation.

Neither are we persuaded by petitioner's theory that the dismissal with prejudice of Civil Case Q-88-935 has the
effect of res judicata on the subsequent case for support. The case of Advincula vs. Advincula  7 comes to the fore. In
Advincula, the minor, Manuela Advincula, instituted a case for acknowledgment and support against her putative
father, Manuel Advincula. On motion of both parties and for the reason that the "plaintiff has lost interest and is no
longer interested in continuing the case against the defendant and has no further evidence to introduce in support of
the complaint", the case was dismissed. Thereafter, a similar case was instituted by Manuela, which the defendant
moved to dismiss, theorizing that the dismissal of the first case precluded the filing of the second case.

In disposing such case, this Court ruled, thus:

The new Civil Code provides that the allowance for support is provisional because the amount
may be increased or decreased depending upon the means of the giver and the needs of the
recipient (Art. 297); and that the right to receive support cannot be renounced nor can it be
transmitted to a third person neither can it be compensated with what the recipient owes the
obligator (Art .301). Furthermore, the right to support can not be waived or transferred to third
parties and future support cannot be the subject of compromise (Art. 2035; Coral v. Gallego, 38
O.G. 3135, cited in IV Civil Code by Padilla, p. 648; 1956 Ed.). This being true, it is indisputable
that the present action for support can be brought, notwithstanding the fact the previous case filed
against the same defendant was dismissed. And it also appearing that the dismissal of Civil Case
No. 3553, was not an adjudication upon the merits, as heretofore shown, the right of herein
plaintiff-appellant to reiterate her suit for support and acknowledgment is available, as her needs
arise. Once the needs of plaintiff arise, she has the right to bring an action for support, for it is only
then that her cause for action is accrues.. . .

xxx xxx xxx

It appears that the former dismissal was predicated upon compromise. Acknowledgment, affecting
as it does the civil status of a persons and future support, cannot be the subject of compromise
(pars. 1 & 4, Art. 2035, Civil Code). Hence, the first dismissal cannot have force and effect and
can not bar the filing of another action, asking for the same relief against the same defendant.
(emphasis supplied).

Conformably, notwithstanding the dismissal of Civil Case Q-88-935 and the lower court's pronouncement that such
dismissal was with prejudice, the second action for support may still prosper.

WHEREFORE, the petition under consideration is hereby DISMISSED and the decision of the Court of Appeals
AFFIRMED. No pronouncement as to costs.
SO ORDERED.

AUGUSTUS CAEZAR R. GAN, petitioner, 

vs.
HON. ANTONIO C. REYES, in his capacity as Presiding Judge of RTC-Br. 61, Baguio City, ALBERT G.
TOLENTINO, in his capacity as RTC Sheriff of Baguio City, and FRANCHESKA JOY C. PONDEVIDA,
assisted by BERNADETTE C. PONDEVIDA, respondents.

BELLOSILLO, J.:

Quite apprehensive that she would not be able to send to school her three (3)-year old daughter Francheska Joy S.
Pondevida, Bernadette S. Pondevida wrote petitioner Augustus Caezar R. Gan1 demanding support for their "love
child." Petitioner, in his reply, denied paternity of the child. An exasperated Bernadette thereafter instituted in behalf
of her daughter a complaint against petitioner for support with prayer for support pendente lite.2

Petitioner moved to dismiss on the ground that the complaint failed to state a cause of action. He argued that since
Francheska's certificate of birth indicated her father as "UNKNOWN," there was no legal or factual basis for the
claim of support.3 His motion, however, was denied by the trial court.4

Despite denial of his motion, petitioner failed to file his answer within the reglementary period. Thus, on 19 January
2000 private respondent moved that petitioner be declared in default, which motion was granted. In
its Orderdeclaring petitioner in default the trial court noted that petitioner's Motion to Admit Answer was filed more
than ninety (90) days after the expiration of the reglementary period, and only after private respondent moved that
petitioner be declared in default. Petitioner's motion for reconsideration was also denied. Hence, the court received
the evidence of private respondent ex parte.

After finding that the claim of filiation and support was adequately proved, the trial court rendered its Decision on
12 May 2000 ordering petitioner to recognize private respondent Francheska Joy S. Pondevida as his illegitimate
child and support her with P20,000.00 every month to be paid on or before the 15th of each month starting 15 April
2000. Likewise petitioner was ordered to pay Francheska Joy S. Pondevida the accumulated arrears of P20,000.00
per month from the day she was born, P50,000.00 as attorney's fees and P25,000.00 for expenses of litigation,
plusP20,000.00 on or before the 15th of every month from 15 May 2000 as alimony pendente lite should he desire to
pursue further remedies against private respondent.5

Forthwith, private respondent moved for execution of the judgment of support, which the trial court granted by
issuing a writ of execution, citing as reason therefor private respondent's immediate need for schooling.6 Pursuant to
the writ, the sheriff levied upon a motor vehicle, a Honda City, with Plate No. UMT 884, registered in the name of
"A.B. Leasing & Fin. Corp., Leased to: G & G Trading," and found within the premises of petitioner's warehouse in
Caloocan City.7

Meanwhile, petitioner appealed the Judgment to the Court of Appeals.8

On 9 June 2000 petitioner filed a petition for certiorari and prohibition with the Court of Appeals imputing grave
abuse of discretion to the trial court for ordering the immediate execution of the judgment. Petitioner averred that the
writ of execution was issued despite the absence of a good reason for immediate enforcement. Petitioner insisted
that as the judgment sought to be executed did not yet attain finality there should be an exceptional reason to warrant
its execution. He further alleged that the writ proceeded from an order of default and a judgment rendered by the
trial court in complete disregard of his "highly meritorious defense." Finally, petitioner impugned the validity of the
writ as he argued that it was issued without notice to him. Petitioner stressed the fact that he received copy of the
motion for immediate execution two (2) weeks after its scheduled hearing.9
On 31 August 2000 the Court of Appeals dismissed the petition on the ratiocination that under Sec. 4, Rule 39 of the
1997 Rules of Civil Procedure judgments for support are immediately executory and cannot be stayed by an appeal.
Thus, it did not help petitioner any to argue that there were no good reasons to support its immediate execution. The
second challenge hurled against the validity of the writ concerning the lack of notice and hearing was likewise
dismissed with the appeals court favoring substantial justice over technicalities. Lastly, petitioner's justification for
belatedly filing his answer, i.e., miscommunication with his lawyer, was disregarded since it fell short of the
statutory requirements of "fraud, accident, mistake or excusable negligence."10

His motion for reconsideration having been denied, petitioner came to us impugning the dismissal of his petition for
certiorari. Petitioner argues that under the rules a judgment for support which is subject of an appeal cannot be
executed absent any good reason for its immediate execution. Petitioner likewise attacks the validity of the writ
asserting that it was issued in violation of his right to notice and hearing. Petitioner also seeks the setting aside of the
default order and the judgment rendered thereafter for the reason that should he be allowed to prove his defense of
adultery, the claim of support would be most likely denied.11 Petitioner claims that in an action by a child against his
putative father, adultery of the child's mother would be a valid defense to show that the child is a fruit of adulterous
relations for, in such case, it would not be the child of the defendant and therefore not entitled to support.
Parenthetically, how could he be allowed to prove the defense of adultery when it was not even hinted that he was
married to the mother of Francheska Joy. Petitioner consents to submit to Dioxyribonucleic Acid (DNA) Testing to
resolve the issue of paternity, which test he claims has a reputation for accuracy.12

A careful review of the facts and circumstances of this case fails to persuade this Court to brand the issuance of the
writ of execution by the trial court and affirmed by the Court of Appeals with the vice of grave abuse of discretion.
There is no evidence indeed to justify the setting aside of the writ on the ground that it was issued beyond the
legitimate bounds of judicial discretion.

Section 4, Rule 39, of the Rules of Court clearly states that, unless ordered by the trial court, judgments in actions
for support are immediately executory and cannot be stayed by an appeal. This is an exception to the general rule
which provides that the taking of an appeal stays the execution of the judgment and that advance executions will
only be allowed if there are urgent reasons therefor. The aforesaid provision peremptorily calls for immediate
execution of all judgments for support and makes no distinction between those which are the subject of an appeal
and those which are not. To consider then petitioner's argument that there should be good reasons for the advance
execution of a judgment would violate the clear and explicit language of the rule mandating immediate execution.

Petitioner is reminded that to the plain words of a legal provision we should make no further explanation. Absoluta
sententia expositore non indiget. Indeed, the interpretation which petitioner attempts to foist upon us would only
lead to absurdity, its acceptance negating the plain meaning of the provision subject of the petition.

Petitioner would also have us annul the writ of execution on the ground that he was not notified of its issuance. We
are unable to accept such a plea for enough has been done by petitioner to delay the execution of the writ. As the
records show, in partial fulfillment of the writ of execution petitioner surrendered a sedan which apparently was not
his as it was later ordered released to a third party who laid claim over the levied vehicle.13 Also, petitioner filed
before the Court of Appeals a Motion for Leave to Deposit in Court Support Pendente Lite promising to deposit the
amount due as support every 15th of the month, but to date has not deposited any amount in complete disavowal of
his undertaking.14 He was not even deterred from appealing before us and needlessly taking up our time and energy
by posing legal questions that can be characterized, at best, as flimsy and trivial. We are thus not prepared to
abrogate the writ of execution issued in favor of private respondent for substantial justice would be better served if
petitioner be precluded from interposing another barrier to the immediate execution of the support judgment.

We are not intimating that in every case the right to notice of hearing can be disregarded. That is not so. It appears in
this case that there has been too much temporizing in the execution of the writ which must not be allowed to thwart
the constitutional mandate for speedy disposition of cases. As has been said, a technicality should be an aid to justice
and not its great hindrance and chief enemy.15 Truly, if the writ of execution would be voided on this ground alone,
then procedural rules which were primarily drafted to protect parties in the realm of constitutional guarantees would
acquire a new sanctity at the expense of equity and justice.
Lastly, we note that no useful purpose would be served if we dwell on petitioner's arguments concerning the validity
of the judgment by default and his insistence that he be subjected, together with private respondent Bernadette C.
Pondevida to DNA testing to settle the issue of paternity. The futility of his arguments is very apparent. It is not for
us at this instance to review or revise the Decision rendered by the trial court for to do so would pre-empt the
decision which may be rendered by the Court of Appeals in the main case for support.

In all cases involving a child, his interest and welfare are always the paramount concerns. There may be instances
where, in view of the poverty of the child, it would be a travesty of justice to refuse him support until the decision of
the trial court attains finality while time continues to slip away. An excerpt from the early case of De Leon v.
Soriano16 is relevant, thus:

The money and property adjudged for support and education should and must be given presently and
without delay because if it had to wait the final judgment, the children may in the meantime have suffered
because of lack of food or have missed and lost years in school because of lack of funds. One cannot delay
the payment of such funds for support and education for the reason that if paid long afterwards, however
much the accumulated amount, its payment cannot cure the evil and repair the damage caused. The children
with such belated payment for support and education cannot act as gluttons and eat voraciously and
unwisely, afterwards, to make up for the years of hunger and starvation. Neither may they enrol in several
classes and schools and take up numerous subjects all at once to make up for the years they missed in
school, due to non-payment of the funds when needed.

WHEREFORE, finding no reversible error in the Decision sought to be reviewed, the instant petition is DENIED.
The 31 August 2000 Decision of the Court of Appeals dismissing the Petition for Certiorari instituted by petitioner
Augustus Caezar C. Gan and upholding the validity of the 2 June 2000 Writ of Execution issued by the Regional
Trial Court – Br. 61, Baguio City, in Civil Case No. 4234-R, is AFFIRMED. Costs against petitioner.

SO ORDERED.

MA. BELEN B. MANGONON, for and in behalf of her minor children REBECCA ANGELA DELGADO
and REGINA ISABEL DELGADO. Petitioner, 
vs.
HON. COURT OF APPEALS, HON. JUDGE JOSEFINA GUEVARA-SALONGA, Presiding Judge, RTC-
Makati, Branch 149, FEDERICO C. DELGADO and FRANCISCO C. DELGADO, Respondents.

DECISION

CHICO-NAZARIO, J.:

Before Us is a Petition for Review on Certiorari assailing the Decision1 of the Court of Appeals dated 20 March
1996, affirming the Order, dated 12 September 19952 of the Regional Trial Court (RTC), Branch 149, Makati,
granting support pendente lite to Rebecca Angela (Rica) and Regina Isabel (Rina), both surnamed Delgado.

The generative facts leading to the filing of the present petition are as follows:

On 17 March 1994, petitioner Ma. Belen B. Mangonon filed, in behalf of her then minor children Rica and Rina, a
Petition for Declaration of Legitimacy and Support, with application for support pendente lite with the RTC
Makati.3In said petition, it was alleged that on 16 February 1975, petitioner and respondent Federico Delgado were
civilly married by then City Court Judge Eleuterio Agudo in Legaspi City, Albay. At that time, petitioner was only
21 years old while respondent Federico was only 19 years old. As the marriage was solemnized without the required
consent per Article 85 of the New Civil Code,4 it was annulled on 11 August 1975 by the Quezon City Juvenile and
Domestic Relations Court.5
On 25 March 1976, or within seven months after the annulment of their marriage, petitioner gave birth to twins Rica
and Rina. According to petitioner, she, with the assistance of her second husband Danny Mangonon, raised her twin
daughters as private respondents had totally abandoned them. At the time of the institution of the petition, Rica and
Rina were about to enter college in the United States of America (USA) where petitioner, together with her
daughters and second husband, had moved to and finally settled in. Rica was admitted to the University of
Massachusetts (Amherst) while Rina was accepted by the Long Island University and Western New England
College. Despite their admissions to said universities, Rica and Rina were, however, financially incapable of
pursuing collegiate education because of the following:

i) The average annual cost for college education in the US is about US$22,000/year, broken down as
follows:

Tuition Fees US$13,000.00

Room & Board 5,000.00

Books 1,000.00

Yearly Transportation &

Meal Allowance 3,000.00

Total US$ 22,000.00

or a total of US$44,000.00, more or less, for both Rica and Rina

ii) Additionally, Rica and Rina need general maintenance support each in the amount of US$3,000.00 per
year or a total of US$6,000 per year.

iii) Unfortunately, petitioner’s monthly income from her 2 jobs is merely US$1,200 after taxes which she
can hardly give general support to Rica and Rina, much less their required college educational support.

iv) Neither can petitioner’s present husband be compelled to share in the general support and college
education of Rica and Rina since he has his own son with petitioner and own daughter (also in college) to
attend to.

v) Worse, Rica and Rina’s petitions for Federal Student Aid have been rejected by the U.S. Department of
Education.6

Petitioner likewise averred that demands7 were made upon Federico and the latter’s father, Francisco,8 for general
support and for the payment of the required college education of Rica and Rina. The twin sisters even exerted efforts
to work out a settlement concerning these matters with respondent Federico and respondent Francisco, the latter
being generally known to be financially well-off.9 These demands, however, remained unheeded. Considering the
impending deadline for admission to college and the opening of classes, petitioner and her then minor children had
no choice but to file the petition before the trial court.

Petitioner also alleged that Rica and Rina are her legitimate daughters by respondent Federico since the twin sisters
were born within seven months from the date of the annulment of her marriage to respondent Federico. However, as
respondent Federico failed to sign the birth certificates of Rica and Rina, it was imperative that their status as
legitimate children of respondent Federico, and as granddaughters of respondent Francisco, be judicially declared
pursuant to Article 173 of the Family Code.10
As legitimate children and grandchildren, Rica and Rina are entitled to general and educational support under
Articles 17411 and 195(b)12 in relation to Articles 194(1 and 2)13 and 199(c)14 of the Family Code. Petitioner alleged
that under these provisions, in case of default on the part of the parents, the obligation to provide support falls upon
the grandparents of the children; thus, respondent Federico, or in his default, respondent Francisco should be ordered
to provide general and educational support for Rica and Rina in the amount of US$50,000.00, more or less, per year.

Petitioner also claimed that she was constrained to seek support pendente lite from private respondents - who are
millionaires with extensive assets both here and abroad - in view of the imminent opening of classes, the possibility
of a protracted litigation, and Rica and Rina’s lack of financial means to pursue their college education in the USA.

In his Answer,15 respondent Francisco stated that as the birth certificates of Rica and Rina do not bear the signature
of respondent Federico, it is essential that their legitimacy be first established as "there is no basis to claim support
until a final and executory judicial declaration has been made as to the civil status of the children."16 Whatever good
deeds he may have done to Rica and Rina, according to respondent Francisco, was founded on pure acts of Christian
charity. He, likewise, averred that the order of liability for support under Article 199 of the Family Code is not
concurrent such that the obligation must be borne by those more closely related to the recipient. In this case, he
maintained that responsibility should rest on the shoulders of petitioner and her second husband, the latter having
voluntarily assumed the duties and responsibilities of a natural father. Even assuming that he is responsible for
support, respondent Francisco contends that he could not be made to answer beyond what petitioner and the father
could afford.

On 24 May 1994, petitioner filed a Motion to Declare Defendant (respondent herein) Federico in Default.17 This was
favorably acted upon by the trial court in the Order dated 16 June 1994.18

On 5 August 1994, respondent Federico filed a Motion to Lift Order of Default alleging that the summons and a
copy of the petition were not served in his correct address.19 Attached thereto was his Answer20 where he claimed
that petitioner had no cause of action against him. According to him, he left for abroad and stayed there for a long
time "[w]ithin the first one hundred twenty (120) days of the three hundred days immediately preceding March 25,
1976" and that he only came to know about the birth of Rica and Rina when the twins introduced themselves to him
seventeen years later. In order not to antagonize the two, respondent Federico claimed he did not tell them that he
could not be their father. Even assuming that Rica and Rina are, indeed, his daughters, he alleged that he could not
give them the support they were demanding as he was only making P40,000.00 a month.

Finding sufficient ground in the motion filed by respondent Federico, the trial court lifted its Order dated 16 June
1994 and admitted his Answer.21

In the meantime, on 25 April 1994, petitioner filed an Urgent Motion to Set Application for Support Pendente Lite
for Hearing because Rica and Rina both badly needed immediate financial resources for their education.22 This
Motion was opposed by respondent Francisco.23 After both parties submitted supplemental pleadings to bolster their
respective positions, the trial court resolved the motion in an Order dated 12 September 1995 in this wise:

WHEREFORE, in the light of the foregoing considerations, respondents are hereby directed to provide a monthly
support (pendente lite) of P5,000.00 each or a total of P10,000.00 for the education of Rebecca Angela and Regina
Isabel Delgado to be delivered within the first five days of each month without need of demand.24

Unsatisfied with the Order of the trial court, petitioner brought the case to the Court of Appeals via Petition for
Certiorari. The Court of Appeals affirmed the holding of the trial court and disposed the petition in the following
manner:

WHEREFORE, the petition for certiorari is hereby DISMISSED and the Order of the lower court dated September
12, 1995 is hereby AFFIRMED.25
Petitioner’s Motion for Reconsideration was denied through the Resolution of the Court of Appeals dated 16 May
1996.26

Petitioner is now before this Court claiming that the Decision of the Court of Appeals was tainted with the following
errors:

RESPONDENT COURT OF APPEALS ERRED IN CONCLUDING THAT RESPONDENT JUDGE DID NOT
COMMIT GRAVE ABUSE OF DISCRETION IN FIXING THE AMOUNT OF MONTHLY SUPPORT
PENDENTE LITE GRANTED TO PETITIONER’S CHILDREN AT A MEASLEY P5,000.00 PER CHILD.

I.

RESPONDENT COURT IGNORED EVIDENCE ON RECORD OF THE FINANCIAL INCAPACITY OF RICA

AND RINA’S PARENTS IN DEFAULT OF WHOM THE OBLIGATION TO GIVE SUPPORT DEVOLVES ON
THE GRANDFATHER.

II.

IT BEING ESTABLISHED THAT THE PERSON OBLIGED TO GIVE SUPPORT – GRANDFATHER DON
PACO – IS UNDOUBTEDLY CAPABLE OF GIVING THE AMOUNT DEMANDED, RESPONDENT COURT
ERRED IN NOT HOLDING THAT RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION
IN FIXING AN AMOUNT OF SUPPORT PENDENTE LITE THAT IS OBVIOUSLY INADEQUATE TO
SUPPORT THE EDUCATIONAL REQUIREMENTS OF THE RECIPIENTS.27

At the time of the filing of the present Petition, it is alleged that Rica had already entered Rutgers University in New
Jersey with a budget of US$12,500.00 for academic year 1994-1995. She was able to obtain a tuition fee grant of
US$1,190.00 and a Federal Stafford loan from the US government in the amount of US$2,615.00.28 In order to
defray the remaining balance of Rica’s education for said school year, petitioner claims that she had to secure a loan
under the Federal Direct Student Loan Program.

Meanwhile, Rina entered CW Post, Long Island University, where she was expected to spend US$20,000.00 for the
school year 1994-1995. She was given a financial grant of US$6,000.00, federal work study assistance of
US$2,000.00, and a Federal Stafford loan of US$2,625.00.29 Again, petitioner obtained a loan to cover the remainder
of Rina’s school budget for the year.

Petitioner concedes that under the law, the obligation to furnish support to Rica and Rina should be first imposed
upon their parents. She contends, however, that the records of this case demonstrate her as well as respondent
Federico’s inability to give the support needed for Rica and Rina’s college education. Consequently, the obligation
to provide support devolves upon respondent Francisco being the grandfather of Rica and Rina.

Petitioner also maintains that as respondent Francisco has the financial resources to help defray the cost of Rica and
Rina’s schooling, the Court of Appeals then erred in sustaining the trial court’s Order directing respondent Federico
to pay Rica and Rina the amount of award P5,000.00 each as monthly support pendente lite.

On the other hand, respondent Francisco argues that the trial court correctly declared that petitioner and respondent
Federico should be the ones to provide the support needed by their twin daughters pursuant to Article 199 of the
Family Code. He also maintains that aside from the financial package availed of by Rica and Rina in the form of
state tuition aid grant, work study program and federal student loan program, petitioner herself was eligible for, and
had availed herself of, the federal parent loan program based on her income and properties in the USA. He, likewise,
insists that assuming he could be held liable for support, he has the option to fulfill the obligation either by paying
the support or receiving and maintaining in the dwelling here in the Philippines the person claiming support.30 As an
additional point to be considered by this Court, he posits the argument that because petitioner and her twin daughters
are now US citizens, they cannot invoke the Family Code provisions on support as "[l]aws relating to family rights
and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even
though living abroad."31

Respondent Federico, for his part, continues to deny having sired Rica and Rina by reiterating the grounds he had
previously raised before the trial court. Like his father, respondent Federico argues that assuming he is indeed the
father of the twin sisters, he has the option under the law as to how he would provide support. Lastly, he assents with
the declaration of the trial court and the Court of Appeals that the parents of a child should primarily bear the burden
of providing support to their offspring.

The petition is meritorious.

As a preliminary matter, we deem it necessary to briefly discuss the essence of support pendente lite. The pertinent
portion of the Rules of Court on the matter provides:

Rule 61
SUPPORT ‘PENDENTE LITE’

SECTION 1. Application.- At the commencement of the proper action or proceeding, or at any time prior to the
judgment or final order, a verified application for support pendente lite may be filed by any party stating the grounds
for the claim and the financial conditions of both parties, and accompanied by affidavits, depositions or other
authentic documents in support thereof.

xxxx

SEC. 4. Order.- The court shall determine provisionally the pertinent facts, and shall render such orders as justice
and equity may require, having due regard to the probable outcome of the case and such other circumstances as may
aid in the proper resolution of the question involved. If the application is granted, the court shall fix the amount of
money to be provisionally paid or such other forms of support as should be provided, taking into account the
necessities of the applicant and the resources or means of the adverse party, and the terms of payment or mode for
providing the support. If the application is denied, the principal case shall be tried and decided as early as possible.

Under this provision, a court may temporarily grant support pendente lite prior to the rendition of judgment or final
order. Because of its provisional nature, a court does not need to delve fully into the merits of the case before it can
settle an application for this relief. All that a court is tasked to do is determine the kind and amount of evidence
which may suffice to enable it to justly resolve the application. It is enough that the facts be established by affidavits
or other documentary evidence appearing in the record.32lavvphi1.net

After the hearings conducted on this matter as well as the evidence presented, we find that petitioner was able to
establish, by prima facie proof, the filiation of her twin daughters to private respondents and the twins’ entitlement
to support pendente lite. In the words of the trial court –

By and large, the status of the twins as children of Federico cannot be denied. They had maintained constant
communication with their grandfather Francisco. As a matter of fact, respondent Francisco admitted having wrote
several letters to Rica and Rina (Exhs. A, B, C, D, E, F, G, G-1 to G-30). In the said letters, particularly at the
bottom thereof, respondent Francisco wrote the names of Rica and Rina Delgado. He therefore was very well aware
that they bear the surname Delgado. Likewise, he referred to himself in his letters as either "Lolo Paco" or "Daddy
Paco." In his letter of October 13, 1989 (Exh. G-21), he said "as the grandfather, am extending a financial help of
US$1,000.00." On top of this, respondent Federico even gave the twins a treat to Hongkong during their visit to the
Philippines. Indeed, respondents, by their actuations, have shown beyond doubt that the twins are the children of
Federico.33

Having addressed the issue of the propriety of the trial court’s grant of support pendente lite in favor of Rica and
Rina, the next question is who should be made liable for said award.
The pertinent provision of the Family Code on this subject states:

ART. 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the following
persons in the order herein provided:

(1) The spouse;

(2) The descendants in the nearest degree;

(3) The ascendants in the nearest degree; and

(4) The brothers and sisters.

An eminent author on the subject explains that the obligation to give support rests principally on those more closely
related to the recipient. However, the more remote relatives may be held to shoulder the responsibility should the
claimant prove that those who are called upon to provide support do not have the means to do so.34

In this case, both the trial court and the Court of Appeals held respondent Federico liable to provide monthly
supportpendente lite in the total amount of P10,000.00 by taking into consideration his supposed income
of P30,000.00 toP40,000.00 per month. We are, however, unconvinced as to the veracity of this ground relied upon
by the trial court and the Court of Appeals.

It is a basic procedural edict that questions of fact cannot be the proper subject of a petition for review under Rule 45
of the 1997 Rules of Civil Procedure. The rule finds a more stringent application where the Court of Appeals
upholds the findings of fact of the trial court; in such a situation, this Court, as the final arbiter, is generally bound to
adopt the facts as determined by the appellate and the lower courts. This rule, however, is not ironclad as it admits of
the following recognized exceptions: "(1) when the findings are grounded entirely on speculation, surmises or
conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave
abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of facts are
conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings
are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to that of the
trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9)
when the facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the
respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by
the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain relevant facts not
disputed by the parties, which, if properly considered, would justify a different conclusion."35 The case at bar falls
within the seventh and eleventh exceptions.

The trial court gave full credence to respondent Federico’s allegation in his Answer36 and his testimony37 as to the
amount of his income. We have, however, reviewed the records of this case and found them bereft of evidence to
support his assertions regarding his employment and his earning. Notably, he was even required by petitioner’s
counsel to present to the court his income tax return and yet the records of this case do not bear a copy of said
document.38 This, to our mind, severely undermines the truthfulness of respondent Federico’s assertion with respect
to his financial status and capacity to provide support to Rica and Rina.

In addition, respondent Francisco himself stated in the witness stand that as far as he knew, his son, respondent
Federico did not own anything –

"Atty. Lopez:

I have here another letter under the letter head of Mr. & Mrs. Dany Mangonon, dated October 19, 1991 addressed to
Mr. Francisco Delgado signed by "sincerely, Danny Mangonon, can you remember."
xxxx

WITNESS:

A: I do remember this letter because it really irritated me so much that I threw it away in a waste basket. It is a very
demanding letter, that is what I do not like at all.

ATTY. LOPEZ:

Q: It is stated in this letter that "I am making this request to you and not to your son, Rico, for reasons we both are
aware of." Do you know what reason that is?

A: Yes. The reason is that my son do not have fix employment and do not have fix salary and income and they want
to depend on the lolo.

x x x xlavvphi1.net

Q: Would you have any knowledge if Federico owns a house and lot?

A: Not that I know. I do not think he has anything.

Q: How about a car?

A: Well, his car is owned by my company.39

Respondent Federico himself admitted in court that he had no property of his own, thus:

Q: You also mentioned that you are staying at Mayflower Building and you further earlier testified that this building
belongs to Citadel Corporation. Do you confirm that?

A: Yes, sir.

Q: What car are you driving, Mr. Witness?

A: I am driving a lancer, sir.

Q: What car, that registered in the name of the corporation?

A: In the corporation, sir.

Q: What corporation is that?

A: Citadel Commercial, Inc., sir.

Q: What properties, if any, are registered in your name, do you have any properties, Mr. Witness?

A: None, sir."40 (Emphasis supplied.)

Meanwhile, respondent Francisco asserts that petitioner possessed the capacity to give support to her twin daughters
as she has gainful employment in the USA. He even went as far as to state that petitioner’s income abroad, when
converted to Philippine peso, was much higher than that received by a trial court judge here in the Philippines. In
addition, he claims that as she qualified for the federal parent loan program, she could very well support the college
studies of her daughters.

We are unconvinced. Respondent Francisco’s assertion that petitioner had the means to support her daughters’
education is belied by the fact that petitioner was even forced by her financial status in the USA to secure the loan
from the federal government. If petitioner were really making enough money abroad, she certainly would not have
felt the need to apply for said loan. The fact that petitioner was compelled to take out a loan is enough indication that
she did not have enough money to enable her to send her daughters to college by herself. Moreover, even Rica and
Rina themselves were forced by the circumstances they found themselves in to secure loans under their names so as
not to delay their entrance to college.

There being prima facie evidence showing that petitioner and respondent Federico are the parents of Rica and Rina,
petitioner and respondent Federico are primarily charged to support their children’s college education. In view
however of their incapacities, the obligation to furnish said support should be borne by respondent Francisco. Under
Article 199 of the Family Code, respondent Francisco, as the next immediate relative of Rica and Rina, is tasked to
give support to his granddaughters in default of their parents. It bears stressing that respondent Francisco is the
majority stockholder and Chairman of the Board of Directors of Citadel Commercial, Incorporated, which owns and
manages twelve gasoline stations, substantial real estate, and is engaged in shipping, brokerage and freight
forwarding. He is also the majority stockholder and Chairman of the Board of Directors of Citadel Shipping which
does business with Hyundai of Korea. Apart from these, he also owns the Citadel Corporation which, in turn, owns
real properties in different parts of the country. He is likewise the Chairman of the Board of Directors of Isla
Communication Co. and he owns shares of stocks of Citadel Holdings. In addition, he owns real properties here and
abroad.41 It having been established that respondent Francisco has the financial means to support his granddaughters’
education, he, in lieu of petitioner and respondent Federico, should be held liable for supportpendente lite.

Anent respondent Francisco and Federico’s claim that they have the option under the law as to how they could
perform their obligation to support Rica and Rina, respondent Francisco insists that Rica and Rina should move here
to the Philippines to study in any of the local universities. After all, the quality of education here, according to him,
is at par with that offered in the USA. The applicable provision of the Family Code on this subject provides:

Art. 204. The person obliged to give support shall have the option to fulfill the obligation either by paying the
allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive
support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto.

Under the abovecited provision, the obligor is given the choice as to how he could dispense his obligation to give
support. Thus, he may give the determined amount of support to the claimant or he may allow the latter to stay in the
family dwelling. The second option cannot be availed of in case there are circumstances, legal or moral, which
should be considered.

In this case, this Court believes that respondent Francisco could not avail himself of the second option. From the
records, we gleaned that prior to the commencement of this action, the relationship between respondent Francisco,
on one hand, and petitioner and her twin daughters, on the other, was indeed quite pleasant. The correspondences
exchanged among them expressed profound feelings of thoughtfulness and concern for one another’s well-being.
The photographs presented by petitioner as part of her exhibits presented a seemingly typical family celebrating
kinship. All of these, however, are now things of the past. With the filing of this case, and the allegations hurled at
one another by the parties, the relationships among the parties had certainly been affected. Particularly difficult for
Rica and Rina must be the fact that those who they had considered and claimed as family denied having any familial
relationship with them. Given all these, we could not see Rica and Rina moving back here in the Philippines in the
company of those who have disowned them.

Finally, as to the amount of support pendente lite, we take our bearings from the provision of the law mandating the
amount of support to be proportionate to the resources or means of the giver and to the necessities of the
recipient.42 Guided by this principle, we hold respondent Francisco liable for half of the amount of school expenses
incurred by Rica and Rina as support pendente lite. As established by petitioner, respondent Francisco has the
financial resources to pay this amount given his various business endeavors.

Considering, however, that the twin sisters may have already been done with their education by the time of the
promulgation of this decision, we deem it proper to award support pendente lite in arrears43 to be computed from the
time they entered college until they had finished their respective studies.

The issue of the applicability of Article 15 of the Civil Code on petitioner and her twin daughters raised by
respondent Francisco is best left for the resolution of the trial court. After all, in case it would be resolved that Rica
and Rina are not entitled to support pendente lite, the court shall then order the return of the amounts already paid
with legal interest from the dates of actual payment.44

WHEREFORE, premises considered, this Petition is PARTIALLY GRANTED. The Decision of the Court of
Appeals dated 20 March 1996 and Resolution dated 16 May 1996 affirming the Order dated 12 September 1995 of
the Regional Trial Court, Branch 149, Makati, fixing the amount of support pendente lite to P5,000.00 for Rebecca
Angela and Regina Isabel, are hereby MODIFIED in that respondent Francisco Delgado is hereby held liable for
support pendente lite in the amount to be determined by the trial court pursuant to this Decision. Let the records of
this case be remanded to the trial court for the determination of the proper amount of support pendente lite for
Rebecca Angela and Regina Isabel as well as the arrearages due them in accordance with this Decision within ten
(10) days from receipt hereof. Concomitantly, the trial court is directed to proceed with the trial of the main case and
the immediate resolution of the same with deliberate dispatch. The RTC Judge, Branch 149, Makati, is further
directed to submit a report of his compliance with the directive regarding the support pendente lite within ten (10)
days from compliance thereof.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 163209               October 30, 2009

SPOUSES PRUDENCIO and FILOMENA LIM, Petitioners, 

vs.
MA. CHERYL S. LIM, for herself and on behalf of her minor children LESTER EDWARD S. LIM,
CANDICE GRACE S. LIM, and MARIANO S. LIM, III, Respondents.

DECISION

CARPIO, J.:
 The Case

For review1 is the Decision2 of the Court of Appeals, dated 28 April 2003, ordering petitioners Prudencio and
Filomena Lim (petitioners) to provide legal support to respondents Cheryl, Lester Edward, Candice Grace and
Mariano III, all surnamed Lim (respondents).

The Facts

In 1979, respondent Cheryl S. Lim (Cheryl) married Edward Lim (Edward), son of petitioners. Cheryl bore Edward
three children, respondents Lester Edward, Candice Grace and Mariano III. Cheryl, Edward and their children
resided at the house of petitioners in Forbes Park, Makati City, together with Edward’s ailing grandmother, Chua
Giak and her husband Mariano Lim (Mariano). Edward’s family business, which provided him with a monthly
salary of P6,000, shouldered the family expenses. Cheryl had no steady source of income.

On 14 October 1990, Cheryl abandoned the Forbes Park residence, bringing the children with her (then all minors),
after a violent confrontation with Edward whom she caught with the in-house midwife of Chua Giak in what the trial
court described "a very compromising situation."3

Cheryl, for herself and her children, sued petitioners, Edward, Chua Giak and Mariano (defendants) in the Regional
Trial Court of Makati City, Branch 140 (trial court) for support. The trial court ordered Edward to provide monthly
support of P6,000 pendente lite.4

The Ruling of the Trial Court

On 31 January 1996, the trial court rendered judgment ordering Edward and petitioners to "jointly" provideP40,000
monthly support to respondents, with Edward shouldering P6,000 and petitioners the balance of P34,000 subject to
Chua Giak’s subsidiary liability.5

The defendants sought reconsideration, questioning their liability. The trial court, while denying reconsideration,
clarified that petitioners and Chua Giak were held jointly liable with Edward because of the latter’s "inability x x x
to give sufficient support x x x."6

Petitioners appealed to the Court of Appeals assailing, among others, their liability to support respondents.
Petitioners argued that while Edward’s income is insufficient, the law itself sanctions its effects by providing that
legal support should be "in keeping with the financial capacity of the family" under Article 194 of the Civil Code, as
amended by Executive Order No. 209 (The Family Code of the Philippines).7

The Ruling of the Court of Appeals

In its Decision dated 28 April 2003, the Court of Appeals affirmed the trial court. On the issue material to this
appeal, that is, whether there is basis to hold petitioners, as Edward’s parents, liable with him to support
respondents, the Court of Appeals held:

The law on support under Article 195 of the Family Code is clear on this matter. Parents and their legitimate
children are obliged to mutually support one another and this obligation extends down to the legitimate
grandchildren and great grandchildren.

In connection with this provision, Article 200 paragraph (3) of the Family Code clearly provides that should the
person obliged to give support does not have sufficient means to satisfy all claims, the other persons enumerated in
Article 199 in its order shall provide the necessary support. This is because the closer the relationship of the
relatives, the stronger the tie that binds them. Thus, the obligation to support is imposed first upon the shoulders of
the closer relatives and only in their default is the obligation moved to the next nearer relatives and so on.8
Petitioners sought reconsideration but the Court of Appeals denied their motion in the Resolution dated 12 April
2004.

Hence, this petition.

The Issue

The issue is whether petitioners are concurrently liable with Edward to provide support to respondents.

The Ruling of the Court

We rule in the affirmative. However, we modify the appealed judgment by limiting petitioners’ liability to the
amount of monthly support needed by respondents Lester Edward, Candice Grace and Mariano III only.

Petitioners Liable to Provide Support but only to their Grandchildren

By statutory9 and jurisprudential mandate,10 the liability of ascendants to provide legal support to their descendants
is beyond cavil. Petitioners themselves admit as much – they limit their petition to the narrow question of when their
liability is triggered, not if they are liable. Relying on provisions11 found in Title IX of the Civil Code, as amended,
on Parental Authority, petitioners theorize that their liability is activated only upon defaultof parental authority,
conceivably either by its termination12 or suspension13 during the children’s minority. Because at the time
respondents sued for support, Cheryl and Edward exercised parental authority over their children,14 petitioners
submit that the obligation to support the latter’s offspring ends with them.

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

Professor Pineda is of the view that grandchildren cannot demand support directly from their grandparents if they
have parents (ascendants of nearest degree) who are capable of supporting them. This is so because we have to
follow the order of support under Art. 199. We agree with this view.

xxxx

There is no showing that private respondent is without means to support his son; neither is there any evidence to
prove that petitioner, as the paternal grandmother, was willing to voluntarily provide for her grandson's legal
support. x x x18 (Emphasis supplied; internal citations omitted)

Here, there is no question that Cheryl is unable to discharge her obligation to provide sufficient legal support to her
children, then all school-bound. It is also undisputed that the amount of support Edward is able to give to
respondents, P6,000 a month, is insufficient to meet respondents’ basic needs. This inability of Edward and Cheryl
to sufficiently provide for their children shifts a portion of their obligation to the ascendants in the nearest degree,
both in the paternal (petitioners) and maternal19 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.1avvphi1

However, petitioners’ partial concurrent obligation extends only to their descendants as this word is commonly
understood to refer to relatives, by blood of lower degree. As petitioners’ grandchildren by blood, only respondents
Lester Edward, Candice Grace and Mariano III belong to this category. Indeed, Cheryl’s right to receive support
from the Lim family extends only to her husband Edward, arising from their marital bond.20Unfortunately, Cheryl’s
share from the amount of monthly support the trial court awarded cannot be determined from the records. Thus, we
are constrained to remand the case to the trial court for this limited purpose.21

Petitioners Precluded from Availing of the Alternative Option Under

Article 204 of the Civil Code, as Amended

As an alternative proposition, petitioners wish to avail of the option in Article 204 of the Civil Code, as amended,
and pray that they be allowed to fulfill their obligation by maintaining respondents at petitioners’ Makati residence.
The option is unavailable to petitioners.

The application of Article 204 which provides that —

The person obliged to give support shall have the option to fulfill the obligation either by paying the allowance
fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support. The
latter alternative cannot be availed of in case there is a moral or legal obstacle thereto. (Emphasis supplied)

is subject to its exception clause. Here, the persons entitled to receive support are petitioners’ grandchildren and
daughter-in-law. Granting petitioners the option in Article 204 will secure to the grandchildren a well-provided
future; however, it will also force Cheryl to return to the house which, for her, is the scene of her husband’s
infidelity. While not rising to the level of a legal obstacle, as indeed, Cheryl’s charge against Edward for
concubinage did not prosper for insufficient evidence, her steadfast insistence on its occurrence amounts to
amoral impediment bringing the case within the ambit of the exception clause of Article 204, precluding its
application.

WHEREFORE, we DENY the petition. We AFFIRM the Decision of the Court of Appeals, dated 28 April 2003,
and its Resolution dated 12 April 2004 with the MODIFICATION that petitioners Prudencio and Filomena Lim are
liable to provide support only to respondents Lester Edward, Candice Grace and Mariano III, all surnamed Lim.
WeREMAND the case to the Regional Trial Court of Makati City, Branch 140, for further proceedings consistent
with this ruling.

SO ORDERED.

CHERRYL B. DOLINA, Petitioner, 
vs.
GLENN D. VALLECERA, Respondent.

DECISION
ABAD, J.:

This case is about a mother’s claim for temporary support of an unacknowledged child, which she sought in an
action for the issuance of a temporary protection order that she brought against the supposed father.

The Facts and the Case

In February 2008 petitioner Cherryl B. Dolina filed a petition with prayer for the issuance of a temporary protection
order against respondent Glenn D. Vallecera before the Regional Trial Court (RTC) of Tacloban City in P.O. 2008-
02-071 for alleged woman and child abuse under Republic Act (R.A.) 9262.2 In filling out the blanks in the pro-
formacomplaint, Dolina added a handwritten prayer for financial support3 from Vallecera for their supposed child.
She based her prayer on the latter’s Certificate of Live Birth which listed Vallecera as the child’s father. The petition
also asked the RTC to order Philippine Airlines, Vallecera’s employer, to withhold from his pay such amount of
support as the RTC may deem appropriate.

Vallecera opposed the petition. He claimed that Dolina’s petition was essentially one for financial support rather
than for protection against woman and child abuses; that he was not the child’s father; that the signature appearing
on the child’s Certificate of Live Birth is not his; that the petition is a harassment suit intended to force him to
acknowledge the child as his and give it financial support; and that Vallecera has never lived nor has been living
with Dolina, rendering unnecessary the issuance of a protection order against him.

On March 13, 20084 the RTC dismissed the petition after hearing since no prior judgment exists establishing the
filiation of Dolina’s son and granting him the right to support as basis for an order to compel the giving of such
support. Dolina filed a motion for reconsideration but the RTC denied it in its April 4, 2008 Order,5 with an
admonition that she first file a petition for compulsory recognition of her child as a prerequisite for support.
Unsatisfied, Dolina filed the present petition for review directly with this Court.

The Issue Presented

The sole issue presented in this case is whether or not the RTC correctly dismissed Dolina’s action for temporary
protection and denied her application for temporary support for her child.

The Court’s Ruling

Dolina evidently filed the wrong action to obtain support for her child. The object of R.A. 9262 under which she
filed the case is the protection and safety of women and children who are victims of abuse or violence.6 Although
the issuance of a protection order against the respondent in the case can include the grant of legal support for the
wife and the child, this assumes that both are entitled to a protection order and to legal support.

Dolina of course alleged that Vallecera had been abusing her and her child.1avvphil But it became apparent to the
RTC upon hearing that this was not the case since, contrary to her claim, neither she nor her child ever lived with
Vallecera. As it turned out, the true object of her action was to get financial support from Vallecera for her child, her
claim being that he is the father. He of course vigorously denied this.

To be entitled to legal support, petitioner must, in proper action, first establish the filiation of the child, if the same is
not admitted or acknowledged. Since Dolina’s demand for support for her son is based on her claim that he is
Vallecera’s illegitimate child, the latter is not entitled to such support if he had not acknowledged him, until Dolina
shall have proved his relation to him.7 The child’s remedy is to file through her mother a judicial action against
Vallecera for compulsory recognition.8 If filiation is beyond question, support follows as matter of obligation.9 In
short, illegitimate children are entitled to support and successional rights but their filiation must be duly proved.10
Dolina’s remedy is to file for the benefit of her child an action against Vallecera for compulsory recognition in order
to establish filiation and then demand support. Alternatively, she may directly file an action for support, where the
issue of compulsory recognition may be integrated and resolved.11

It must be observed, however, that the RTC should not have dismissed the entire case based solely on the lack of any
judicial declaration of filiation between Vallecera and Dolina’s child since the main issue remains to be the alleged
violence committed by Vallecera against Dolina and her child and whether they are entitled to protection. But of
course, this matter is already water under the bridge since Dolina failed to raise this error on review. This omission
lends credence to the conclusion of the RTC that the real purpose of the petition is to obtain support from Vallecera.

While the Court is mindful of the best interests of the child in cases involving paternity and filiation, it is just as
aware of the disturbance that unfounded paternity suits cause to the privacy and peace of the putative father’s
legitimate family.12 Vallecera disowns Dolina’s child and denies having a hand in the preparation and signing of its
certificate of birth. This issue has to be resolved in an appropriate case.

ACCORDINGLY, the Court DENIES the petition and AFFIRMS the Regional Trial Court of Tacloban City’s
Order dated March 13, 2008 that dismissed petitioner Cherryl B. Dolina’s action in P.O. 2008-02-07, and Order
dated April 4, 2008, denying her motion for reconsideration dated March 28, 2008.

SO ORDERED.

SUSAN LIM-LUA, Petitioner, 
vs.
DANILO Y. LUA, Respondent.

DECISION

VILLARAMA, JR., J.:

In this petition for review on certiorari under Rule 45, petitioner seeks to set aside the Decision1 dated April 20,
2006 and Resolution2 dated October 26, 2006 of the Court of Appeals (CA) dismissing her petition for contempt
(CA-G.R. SP No. 01154) and granting respondent's petition for certiorari (CA-G.R. SP No. 01315).

The factual background is as follows:

On September 3, 2003,3 petitioner Susan Lim-Lua filed an action for the declaration of nullity of her marriage with
respondent Danilo Y. Lua, docketed as Civil Case No. CEB-29346 of the Regional Trial Court (RTC) of Cebu City,
Branch 14.

In her prayer for support pendente lite for herself and her two children, petitioner sought the amount of P500,000.00
as monthly support, citing respondent’s huge earnings from salaries and dividends in several companies and
businesses here and abroad.4

After due hearing, Judge Raphael B. Yrastorza, Sr. issued an Order5 dated March 31, 2004 granting support
pendente lite, as follows:

From the evidence already adduced by the parties, the amount of Two Hundred Fifty (P250,000.00) Thousand Pesos
would be sufficient to take care of the needs of the plaintiff. This amount excludes the One hundred thirty-five
(P135,000.00) Thousand Pesos for medical attendance expenses needed by plaintiff for the operation of both her
eyes which is demandable upon the conduct of such operation. The amounts already extended to the two (2)
children, being a commendable act of defendant, should be continued by him considering the vast financial
resources at his disposal.

According to Art. 203 of the Family Code, support is demandable from the time plaintiff needed the said support but
is payable only from the date of judicial demand. Since the instant complaint was filed on 03 September 2003, the
amount of Two Hundred Fifty (P250,000.00) Thousand should be paid by defendant to plaintiff retroactively to such
date until the hearing of the support pendente lite. P250,000.00 x 7 corresponding to the seven (7) months that
lapsed from September, 2003 to March 2004 would tantamount to a total of One Million Seven Hundred Fifty
(P1,750,000.00) Thousand Pesos. Thereafter, starting the month of April 2004, until otherwise ordered by this
Court, defendant is ordered to pay a monthly support of Two Hundred Fifty Thousand (P250,000.00) Pesos payable
within the first five (5) days of each corresponding month pursuant to the third paragraph of Art. 203 of the Family
Code of the Philippines. The monthly support of P250,000.00 is without prejudice to any increase or decrease
thereof that this Court may grant plaintiff as the circumstances may warrant i.e. depending on the proof submitted by
the parties during the proceedings for the main action for support.6

Respondent filed a motion for reconsideration,7 asserting that petitioner is not entitled to spousal support considering
that she does not maintain for herself a separate dwelling from their children and respondent has continued to
support the family for their sustenance and well-being in accordance with family’s social and financial standing. As
to the P250,000.00 granted by the trial court as monthly support pendente lite, as well as theP1,750,000.00
retroactive support, respondent found it unconscionable and beyond the intendment of the law for not having
considered the needs of the respondent.

In its May 13, 2004 Order, the trial court stated that the March 31, 2004 Order had become final and executory since
respondent’s motion for reconsideration is treated as a mere scrap of paper for violation of the threeday notice
period under Section 4, Rule 15 of the 1997 Rules of Civil Procedure, as amended, and therefore did not interrupt
the running of the period to appeal. Respondent was given ten (10) days to show cause why he should not be held in
contempt of the court for disregarding the March 31, 2004 order granting support pendente lite.8

His second motion for reconsideration having been denied, respondent filed a petition for certiorari in the CA.

On April 12, 2005, the CA rendered its Decision,9 finding merit in respondent’s contention that the trial court
gravely abused its discretion in granting P250,000.00 monthly support to petitioner without evidence to prove his
actual income. The said court thus decreed:

WHEREFORE, foregoing premises considered, this petition is given due course. The assailed Orders dated March
31, 2004, May 13, 2004, June 4, 2004 and June 18, 2004 of the Regional Trial Court, Branch 14, Cebu City issued
in Civil Case No. CEB No. 29346 entitled "Susan Lim Lua versus Danilo Y. Lua" are hereby nullified and set aside
and instead a new one is entered ordering herein petitioner:

a) to pay private respondent a monthly support pendente lite of P115,000.00 beginning the month of April
2005 and every month thereafter within the first five (5) days thereof;

b) to pay the private respondent the amount of P115,000.00 a month multiplied by the number of months
starting from September 2003 until March 2005 less than the amount supposedly given by petitioner to the
private respondent as her and their two (2) children monthly support; and

c) to pay the costs.

SO ORDERED.10

Neither of the parties appealed this decision of the CA. In a Compliance11 dated June 28, 2005, respondent attached
a copy of a check he issued in the amount of P162,651.90 payable to petitioner. Respondent explained that, as
decreed in the CA decision, he deducted from the amount of support in arrears (September 3, 2003 to March 2005)
ordered by the CA -- P2,185,000.00 -- plus P460,000.00 (April, May, June and July 2005), totalingP2,645,000.00,
the advances given by him to his children and petitioner in the sum of P2,482,348.16 (with attached photocopies of
receipts/billings).

In her Comment to Compliance with Motion for Issuance of a Writ of Execution,12 petitioner asserted that none of
the expenses deducted by respondent may be chargeable as part of the monthly support contemplated by the CA in
CA-G.R. SP No. 84740.

On September 27, 2005, the trial court issued an Order13 granting petitioner’s motion for issuance of a writ of
execution as it rejected respondent’s interpretation of the CA decision. Respondent filed a motion for
reconsideration and subsequently also filed a motion for inhibition of Judge Raphael B. Yrastorza, Sr. On November
25, 2005, Judge Yrastorza, Sr. issued an Order14 denying both motions.

WHEREFORE, in view of the foregoing premises, both motions are DENIED. Since a second motion for
reconsideration is prohibited under the Rules, this denial has attained finality; let, therefore, a writ of execution be
issued in favor of plaintiff as against defendant for the accumulated support in arrears pendente lite.

Notify both parties of this Order.

SO ORDERED.15

Since respondent still failed and refused to pay the support in arrears pendente lite, petitioner filed in the CA a
Petition for Contempt of Court with Damages, docketed as CA-G.R. SP No. 01154 ("Susan Lim Lua versus Danilo
Y. Lua"). Respondent, on the other hand, filed CA-G.R. SP No. 01315, a Petition for Certiorari under Rule 65 of the
Rules of Court ("Danilo Y. Lua versus Hon. Raphael B. Yrastorza, Sr., in his capacity as Presiding Judge of
Regional Trial Court of Cebu, Branch 14, and Susan Lim Lua"). The two cases were consolidated.

By Decision dated April 20, 2006, the CA set aside the assailed orders of the trial court, as follows:

WHEREFORE, judgment is hereby rendered:

a) DISMISSING, for lack of merit, the case of Petition for Contempt of Court with Damages filed by Susan
Lim Lua against Danilo Y. Lua with docket no. SP. CA-GR No. 01154;

b) GRANTING Danilo Y. Lua’s Petition for Certiorari docketed as SP. CA-GR No. 01315. Consequently,
the assailed Orders dated 27 September 2005 and 25 November 2005 of the Regional Trial Court, Branch
14, Cebu City issued in Civil Case No. CEB-29346 entitled "Susan Lim Lua versus Danilo Y. Lua, are
hereby NULLIFIED and SET ASIDE, and instead a new one is entered:

i. ORDERING the deduction of the amount of PhP2,482,348.16 plus 946,465.64, or a total of

PhP3,428,813.80 from the current total support in arrears of Danilo Y. Lua to his wife, Susan Lim
Lua and their two (2) children;

ii. ORDERING Danilo Y. Lua to resume payment of his monthly support of PhP115,000.00 pesos
starting from the time payment of this amount was deferred by him subject to the deductions
aforementioned.

iii. DIRECTING the issuance of a permanent writ of preliminary injunction.

SO ORDERED.16
The appellate court said that the trial court should not have completely disregarded the expenses incurred by
respondent consisting of the purchase and maintenance of the two cars, payment of tuition fees, travel expenses, and
the credit card purchases involving groceries, dry goods and books, which certainly inured to the benefit not only of
the two children, but their mother (petitioner) as well. It held that respondent’s act of deferring the monthly support
adjudged in CA-G.R. SP No. 84740 was not contumacious as it was anchored on valid and justifiable reasons.
Respondent said he just wanted the issue of whether to deduct his advances be settled first in view of the different
interpretation by the trial court of the appellate court’s decision in CA-G.R. SP No. 84740. It also noted the lack of
contribution from the petitioner in the joint obligation of spouses to support their children.

Petitioner filed a motion for reconsideration but it was denied by the CA.

Hence, this petition raising the following errors allegedly committed by the CA:

I.

THE HONORABLE COURT ERRED IN NOT FINDING RESPONDENT GUILTY OF INDIRECT

CONTEMPT.

II.

THE HONORABLE COURT ERRED IN ORDERING THE DEDUCTION OF THE AMOUNT OF

PHP2,482,348.16 PLUS 946,465.64, OR A TOTAL OF PHP3,428,813.80 FROM THE CURRENT
TOTAL SUPPORT IN ARREARS OF THE RESPONDENT TO THE PETITIONER AND THEIR
CHILDREN.17

The main issue is whether certain expenses already incurred by the respondent may be deducted from the total
support in arrears owing to petitioner and her children pursuant to the Decision dated April 12, 2005 in CA-G.R. SP
No. 84740.

The pertinent provision of the Family Code of the Philippines provides:

Article 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance,
education and transportation, in keeping with the financial capacity of the family.

The education of the person entitled to be supported referred to in the preceding paragraph shall include his
schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall
include expenses in going to and from school, or to and from place of work. (Emphasis supplied.)

Petitioner argues that it was patently erroneous for the CA to have allowed the deduction of the value of the two cars
and their maintenance costs from the support in arrears, as these items are not indispensable to the sustenance of the
family or in keeping them alive. She points out that in the Decision in CA-G.R. SP No. 84740, the CA already
considered the said items which it deemed chargeable to respondent, while the monthly support pendente lite
(P115,000.00) was fixed on the basis of the documentary evidence of respondent’s alleged income from various
businesses and petitioner’s testimony that she needed P113,000.00 for the maintenance of the household and other
miscellaneous expenses excluding the P135,000.00 medical attendance expenses of petitioner.

Respondent, on the other hand, contends that disallowing the subject deductions would result in unjust enrichment,
thus making him pay for the same obligation twice. Since petitioner and the children resided in one residence, the
groceries and dry goods purchased by the children using respondent’s credit card, totalling P594,151.58 for the
period September 2003 to June 2005 were not consumed by the children alone but shared with their mother. As to
the Volkswagen Beetle and BMW 316i respondent bought for his daughter Angelli Suzanne Lua and Daniel Ryan
Lua, respectively, these, too, are to be considered advances for support, in keeping with the financial capacity of the
family. Respondent stressed that being children of parents belonging to the upper-class society, Angelli and Daniel
Ryan had never in their entire life commuted from one place to another, nor do they eat their meals at "carinderias".
Hence, the cars and their maintenance are indispensable to the children’s day-to-day living, the value of which were
properly deducted from the arrearages in support pendente lite ordered by the trial and appellate courts.

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 proportion to the resources or means of the giver and to the needs of the
recipient.18 Such support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance,
education and transportation, in keeping with the financial capacity of the family.

Upon receipt of a verified petition for declaration of absolute nullity of void marriage or for annulment of voidable
marriage, or for legal separation, and at any time during the proceeding, the court, motu proprio or upon verified
application of any of the parties, guardian or designated custodian, may temporarily grant support pendente lite prior
to the rendition of judgment or final order.19 Because of its provisional nature, a court does not need to delve fully
into the merits of the case before it can settle an application for this relief. All that a court is tasked to do is
determine the kind and amount of evidence which may suffice to enable it to justly resolve the application. It is
enough that the facts be established by affidavits or other documentary evidence appearing in the record.20

In this case, the amount of monthly support pendente lite for petitioner and her two children was determined after
due hearing and submission of documentary evidence by the parties. Although the amount fixed by the trial court
was reduced on appeal, it is clear that the monthly support pendente lite of P115,000.00 ordered by the CA was
intended primarily for the sustenance of petitioner and her children, e.g., food, clothing, salaries of drivers and house
helpers, and other household expenses. Petitioner’s testimony also mentioned the cost of regular therapy for her
scoliosis and vitamins/medicines.

ATTY. ZOSA:

xxxx

Q How much do you spend for your food and your two (2) children every month?

A Presently, Sir?

ATTY. ZOSA:

Yes.

A For the food alone, I spend not over P40,000.00 to P50,000.00 a month for the food alone.

xxxx

ATTY. ZOSA:

Q What other expenses do you incur in living in that place?

A The normal household and the normal expenses for a family to have a decent living, Sir.

Q How much other expenses do you incur?

WITNESS:

A For other expenses, is around over a P100,000.00, Sir.

Q Why do you incur that much amount?

A For the clothing for the three (3) of us, for the vitamins and medicines. And also I am having a special therapy to
straighten my back because I am scoliotic. I am advised by the Doctor to hire a driver, but I cannot still afford it
now. Because my eyesight is not reliable for driving. And I still need another househelp to accompany me whenever
I go marketing because for my age, I cannot carry anymore heavy loads.

xxxx

ATTY. FLORES:

xxxx

Q On the issue of the food for you and the two (2) children, you mentioned P40,000.00 to P50,000.00?

A Yes, for the food alone.

Q Okay, what other possible expenses that you would like to include in those two (2) items? You mentioned of a
driver, am I correct?

A Yes, I might need two (2) drivers, Sir for me and my children.

Q Okay. How much would you like possibly to pay for those two (2) drivers?

A I think P10,000.00 a month for one (1) driver. So I need two (2) drivers. And I need another househelp.

Q You need another househelp. The househelp nowadays would charge you something between P3,000.00
toP4,000.00. That’s quite…

A Right now, my househelp is receiving P8,000.00. I need another which I will give a compensation of P5,000.00.

Q Other than that, do you still have other expenses?

A My clothing.

COURT:

How about the schooling for your children?

WITNESS:

A The schooling is shouldered by my husband, Your Honor.

COURT:

Everything?

A Yes, Your Honor.

xxxx
ATTY. FLORES:

Q Madam witness, let us talk of the present needs. x x x. What else, what specific need that you would like to add so
I can tell my client, the defendant.

WITNESS:

A I need to have an operation both of my eyes. I also need a special therapy for my back because I am scoliotic,
three (3) times a week.

Q That is very reasonable. [W]ould you care to please repeat that?

A Therapy for my scoliotic back and then also for the operation both of my eyes. And I am also taking some
vitamins from excel that will cost P20,000.00 a month.

Q Okay. Let’s have piece by piece. Have you asked the Doctor how much would it cost you for the operation of that
scoliotic?

A Yes before because I was already due last year. Before, this eye will cost P60,000.00 and the other
eyesP75,000.00.

Q So for both eyes, you are talking of P60,000.00 plus P75,000.00 is P135,000.00?

A Yes.

xxxx

Q You talk of therapy?

A Yes.

Q So how much is that?

A Around P5,000.00 a week.21

As to the financial capacity of the respondent, it is beyond doubt that he can solely provide for the subsistence,
education, transportation, health/medical needs and recreational activities of his children, as well as those of
petitioner who was then unemployed and a full-time housewife. Despite this, respondent’s counsel manifested
during the same hearing that respondent was willing to grant the amount of only P75,000.00 as monthly support
pendente lite both for the children and petitioner as spousal support. Though the receipts of expenses submitted in
court unmistakably show how much respondent lavished on his children, it appears that the matter of spousal
support was a different matter altogether. Rejecting petitioner’s prayer for P500,000.00 monthly support and finding
the P75,000.00 monthly support offered by respondent as insufficient, the trial court fixed the monthly support
pendente lite at P250,000.00. However, since the supposed income in millions of respondent was based merely on
the allegations of petitioner in her complaint and registration documents of various corporations which respondent
insisted are owned not by him but his parents and siblings, the CA reduced the amount of support pendente lite
toP115,000.00, which ruling was no longer questioned by both parties.

Controversy between the parties resurfaced when respondent’s compliance with the final CA decision indicated that
he deducted from the total amount in arrears (P2,645,000.00) the sum of P2,482,348.16, representing the value of
the two cars for the children, their cost of maintenance and advances given to petitioner and his children.
Respondent explained that the deductions were made consistent with the fallo of the CA Decision in CA-G.R. SP
No. 84740 ordering him to pay support pendente lite in arrears less the amount supposedly given by him to
petitioner as her and their two children’s monthly support.

The following is a summary of the subject deductions under Compliance dated June 28, 2005, duly supported by
receipts22:

Car purchases for Angelli Suzanne - Php1,350,000.00

and Daniel Ryan - 613,472.86
Car Maintenance fees of Angelli - 51,232.50
Suzanne
Credit card statements of Daniel Ryan - 348,682.28
Car Maintenance fees of Daniel Ryan - 118,960.52

Php2,482,348.16

After the trial court disallowed the foregoing deductions, respondent filed a motion for reconsideration further
asserting that the following amounts, likewise with supporting receipts, be considered as additional advances given
to petitioner and the children23:

Medical expenses of Susan Lim-Lua Php 42,450.71

Dental Expenses of Daniel Ryan 11,500.00
Travel expenses of Susan Lim-Lua 14,611.15
Credit card purchases of Angelli 408,891.08
Suzanne
Salon and travel expenses of Angelli 87,112.70
Suzanne
School expenses of Daniel Ryan Lua 260,900.00
Cash given to Daniel and Angelli 121,000.00

TOTAL - Php 946,465.64

GRAND TOTAL - Php 3,428,813.80

The CA, in ruling for the respondent said that all the foregoing expenses already incurred by the respondent should,
in equity, be considered advances which may be properly deducted from the support in arrears due to the petitioner
and the two children. Said court also noted the absence of petitioner’s contribution to the joint obligation of support
for their children.

We reverse in part the decision of the CA.

Judicial determination of support pendente lite in cases of legal separation and petitions for declaration of nullity or
annulment of marriage are guided by the following provisions of the Rule on Provisional Orders24

Sec. 2. Spousal Support.–In determining support for the spouses, the court may be guided by the following rules:
 (a) In the absence of adequate provisions in a written agreement between the spouses, the spouses may be
supported from the properties of the absolute community or the conjugal partnership.

(b) The court may award support to either spouse in such amount and for such period of time as the court
may deem just and reasonable based on their standard of living during the marriage.

(c) The court may likewise consider the following factors: (1) whether the spouse seeking support is the
custodian of a child whose circumstances make it appropriate for that spouse not to seek outside
employment; (2) the time necessary to acquire sufficient education and training to enable the spouse
seeking support to find appropriate employment, and that spouse’s future earning capacity; (3) the duration
of the marriage; (4) the comparative financial resources of the spouses, including their comparative earning
abilities in the labor market; (5) the needs and obligations of each spouse; (6) the contribution of each
spouse to the marriage, including services rendered in home-making, child care, education, and career
building of the other spouse; (7) the age and health of the spouses; (8) the physical and emotional
conditions of the spouses; (9) the ability of the supporting spouse to give support, taking into account that
spouse’s earning capacity, earned and unearned income, assets, and standard of living; and (10) any other
factor the court may deem just and equitable.

(d) The Family Court may direct the deduction of the provisional support from the salary of the spouse.

Sec. 3. Child Support.–The common children of the spouses shall be supported from the properties of the absolute
community or the conjugal partnership.

Subject to the sound discretion of the court, either parent or both may be ordered to give an amount necessary for the
support, maintenance, and education of the child. It shall be in proportion to the resources or means of the giver and
to the necessities of the recipient.

In determining the amount of provisional support, the court may likewise consider the following factors: (1) the
financial resources of the custodial and non-custodial parent and those of the child; (2) the physical and emotional
health of the child and his or her special needs and aptitudes; (3) the standard of living the child has been
accustomed to; (4) the non-monetary contributions that the parents will make toward the care and well-being of the
child.

The Family Court may direct the deduction of the provisional support from the salary of the parent.

Since the amount of monthly support pendente lite as fixed by the CA was not appealed by either party, there is no
controversy as to its sufficiency and reasonableness. The dispute concerns the deductions made by respondent in
settling the support in arrears.

On the issue of crediting of money payments or expenses against accrued support, we find as relevant the following
rulings by US courts.

In Bradford v. Futrell,25 appellant sought review of the decision of the Circuit Court which found him in arrears with
his child support payments and entered a decree in favor of appellee wife. He complained that in determining the
arrearage figure, he should have been allowed full credit for all money and items of personal property given by him
to the children themselves, even though he referred to them as gifts. The Court of Appeals of Maryland ruled that in
the suit to determine amount of arrears due the divorced wife under decree for support of minor children, the
husband (appellant) was not entitled to credit for checks which he had clearly designated as gifts, nor was he entitled
to credit for an automobile given to the oldest son or a television set given to the children. Thus, if the children
remain in the custody of the mother, the father is not entitled to credit for money paid directly to the children if such
was paid without any relation to the decree.
In the absence of some finding of consent by the mother, most courts refuse to allow a husband to dictate how he
will meet the requirements for support payments when the mode of payment is fixed by a decree of court. Thus he
will not be credited for payments made when he unnecessarily interposed himself as a volunteer and made payments
direct to the children of his own accord. Wills v. Baker, 214 S. W. 2d 748 (Mo. 1948); Openshaw v. Openshaw, 42
P. 2d 191 (Utah 1935). In the latter case the court said in part: "The payments to the children themselves do not
appear to have been made as payments upon alimony, but were rather the result of his fatherly interest in the welfare
of those children. We do not believe he should be permitted to charge them to plaintiff. By so doing he would be
determining for Mrs. Openshaw the manner in which she should expend her allowances. It is a very easy thing for
children to say their mother will not give them money, especially as they may realize that such a plea is effective in
attaining their ends. If she is not treating them right the courts are open to the father for redress."26

In Martin, Jr. v. Martin,27 the Supreme Court of Washington held that a father, who is required by a divorce decree
to make child support payments directly to the mother, cannot claim credit for payments voluntarily made directly to
the children. However, special considerations of an equitable nature may justify a court in crediting such payments
on his indebtedness to the mother, when such can be done without injustice to her.

The general rule is to the effect that when a father is required by a divorce decree to pay to the mother money for the
support of their dependent children and the unpaid and accrued installments become judgments in her favor, he
cannot, as a matter of law, claim credit on account of payments voluntarily made directly to the children. Koon v.
Koon, supra; Briggs v. Briggs, supra. However, special considerations of an equitable nature may justify a court in
crediting such payments on his indebtedness to the mother, when that can be done without injustice to her. Briggs v.
Briggs, supra. The courts are justifiably reluctant to lay down any general rules as to when such credits may be
allowed.28 (Emphasis supplied.)

Here, the CA should not have allowed all the expenses incurred by respondent to be credited against the accrued
support pendente lite. As earlier mentioned, the monthly support pendente lite granted by the trial court was
intended primarily for food, household expenses such as salaries of drivers and house helpers, and also petitioner’s
scoliosis therapy sessions. Hence, the value of two expensive cars bought by respondent for his children plus their
maintenance cost, travel expenses of petitioner and Angelli, purchases through credit card of items other than
groceries and dry goods (clothing) should have been disallowed, as these bear no relation to the judgment awarding
support pendente lite. While it is true that the dispositive portion of the executory decision in CA-G.R. SP No.
84740 ordered herein respondent to pay the support in arrears "less than the amount supposedly given by petitioner
to the private respondent as her and their two (2) children monthly support," the deductions should be limited to
those basic needs and expenses considered by the trial and appellate courts. The assailed ruling of the CA allowing
huge deductions from the accrued monthly support of petitioner and her children, while correct insofar as it
commends the generosity of the respondent to his children, is clearly inconsistent with the executory decision in
CA-G.R. SP No. 84740. More important, it completely ignores the unfair consequences to petitioner whose
sustenance and well-being, was given due regard by the trial and appellate courts. This is evident from the March
31, 2004 Order granting support pendente lite to petitioner and her children, when the trial court observed:

While there is evidence to the effect that defendant is giving some forms of financial assistance to his two (2)
children via their credit cards and paying for their school expenses, the same is, however, devoid of any form of
spousal support to the plaintiff, for, at this point in time, while the action for nullity of marriage is still to be heard, it
is incumbent upon the defendant, considering the physical and financial condition of the plaintiff and the
overwhelming capacity of defendant, to extend support unto the latter. x x x29

On appeal, while the Decision in CA-G.R. SP No. 84740 reduced the amount of monthly support fixed by the trial
court, it nevertheless held that considering respondent’s financial resources, it is but fair and just that he give a
monthly support for the sustenance and basic necessities of petitioner and his children. This would imply that any
amount respondent seeks to be credited as monthly support should only cover those incurred for sustenance and
household expenses.1avvphi1

In the case at bar, records clearly show and in fact has been admitted by petitioner that aside from paying the
expenses of their two (2) children’s schooling, he gave his two (2) children two (2) cars and credit cards of which
the expenses for various items namely: clothes, grocery items and repairs of their cars were chargeable to him which
totaled an amount of more than One Hundred Thousand (P100,000.00) for each of them and considering that as
testified by the private respondent that she needs the total amount of P113,000.00 for the maintenance of the
household and other miscellaneous expenses and considering further that petitioner can afford to buy cars for his
two (2) children, and to pay the expenses incurred by them which are chargeable to him through the credit cards he
provided them in the amount of P100,000.00 each, it is but fair and just that the monthly support pendente lite for
his wife, herein private respondent, be fixed as of the present in the amount of P115,000.00 which would be
sufficient enough to take care of the household and other needs. This monthly support pendente lite to private
respondent in the amount of P115,000.00 excludes the amount of One Hundred ThirtyFive (P135,000.00) Thousand
Pesos for medical attendance expenses needed by private respondent for the operation of both her eyes which is
demandable upon the conduct of such operation. Likewise, this monthly support of P115,000.00 is without prejudice
to any increase or decrease thereof that the trial court may grant private respondent as the circumstances may
warrant i.e. depending on the proof submitted by the parties during the proceedings for the main action for support.

The amounts already extended to the two (2) children, being a commendable act of petitioner, should be continued
by him considering the vast financial resources at his disposal.30 (Emphasis supplied.)

Accordingly, only the following expenses of respondent may be allowed as deductions from the accrued support
pendente lite for petitioner and her children:

1âwphi1
Medical expenses of Susan Lim-Lua Php 42,450.71
Dental Expenses of Daniel Ryan 11,500.00
Credit card purchases of Angelli 365,282.20
(Groceries and Dry Goods) 228,869.38
Credit Card purchases of Daniel Ryan

TOTAL Php 648,102.29

As to the contempt charge, we sustain the CA in holding that respondent is not guilty of indirect contempt.

Contempt of court is defined as a disobedience to the court by acting in opposition to its authority, justice, and
dignity. It signifies not only a willful disregard or disobedience of the court’s order, but such conduct which tends to
bring the authority of the court and the administration of law into disrepute or, in some manner, to impede the due
administration of justice.31 To constitute contempt, the act must be done willfully and for an illegitimate or improper
purpose.32 The good faith, or lack of it, of the alleged contemnor should be considered.33

Respondent admittedly ceased or suspended the giving of monthly support pendente lite granted by the trial court,
which is immediately executory. However, we agree with the CA that respondent’s act was not contumacious
considering that he had not been remiss in actually providing for the needs of his children. It is a matter of record
that respondent continued shouldering the full cost of their education and even beyond their basic necessities in
keeping with the family’s social status. Moreover, respondent believed in good faith that the trial and appellate
courts, upon equitable grounds, would allow him to offset the substantial amounts he had spent or paid directly to
his children.

Respondent complains that petitioner is very much capacitated to generate income on her own because she presently
maintains a boutique at the Ayala Center Mall in Cebu City and at the same time engages in the business of lending
money. He also claims that the two children have finished their education and are now employed in the family
business earning their own salaries.
Suffice it to state that the matter of increase or reduction of support should be submitted to the trial court in which
the action for declaration for nullity of marriage was filed, as this Court is not a trier of facts. The amount of support
may be reduced or increased proportionately according to the reduction or increase of the necessities of the recipient
and the resources or means of the person obliged to support.34 As we held in Advincula v. Advincula35

…Judgment for support does not become final. The right to support is of such nature that its allowance is essentially
provisional; for during the entire period that a needy party is entitled to support, his or her alimony may be modified
or altered, in accordance with his increased or decreased needs, and with the means of the giver. It cannot be
regarded as subject to final determination.36

WHEREFORE, the petition is PARTLY GRANTED. The Decision dated April 20, 2006 of the Court of Appeals in
CA-G.R. SP Nos. 01154 and 01315 is hereby MODIFIED to read as follows:

"WHEREFORE, judgment is hereby rendered:

a) DISMISSING, for lack of merit, the case of Petition for Contempt of Court with Damages filed by Susan
Lim Lua against Danilo Y. Lua with docket no. SP. CA-G.R. No. 01154;

b) GRANTING IN PART Danilo Y. Lua's Petition for Certiorari docketed as SP. CA-G.R. No. 01315.
Consequently, the assailed Orders dated 27 September 2005 and 25 November 2005 of the Regional Trial
Court, Branch 14, Cebu City issued in Civil Case No. CEB-29346 entitled "Susan Lim Lua versus Danilo
Y. Lua, are hereby NULLIFIED and SET ASIDE, and instead a new one is entered:

i. ORDERING the deduction of the amount of Php 648,102.29 from the support pendente lite in
arrears of Danilo Y. Lua to his wife, Susan Lim Lua and their two (2) children;

ii. ORDERING Danilo Y. Lua to resume payment of his monthly support of PhP115,000.00 pesos
starting from the time payment of this amount was deferred by him subject to the deduction
aforementioned.

iii. DIRECTING the immediate execution of this judgment.

SO ORDERED.

PARENTAL AUTHORITY

REYNALDO ESPIRITU and GUILLERMA LAYUG, petitioners, 

vs.
COURT OF APPEALS and TERESITA MASAUDING, respondents.
 

MELO, J.:

This case concerns a seemingly void marriage and a relationship which went sour. The innocent victims are two
children horn out of the same union. Upon this Court now falls the not too welcome task of deciding the issue of
who, between the father and mother, is more suitable and better qualified in helping the children to grow into
responsible, well-adjusted, and happy young adulthood.

Petitioner Reynaldo Espiritu and respondent Teresita Masauding first met sometime in 1976 in Iligan City where
Reynaldo was employed by the National Steel Corporation and Teresita was employed as a nurse in a local hospital.
In 1977, Teresita left for Los Angeles, California to work as a nurse. She was able to acquire immigrant status
sometime later. In 1984, Reynaldo was sent by his employer, the National Steel Corporation, to Pittsburgh,
Pennsylvania as its liaison officer and Reynaldo and Teresita then began to maintain a common law relationship of
husband and wife. On August 16, 1986, their daughter, Rosalind Therese, was born. On October 7, 1987, while they
were on a brief vacation in the Philippines, Reynaldo and Teresita got married, and upon their return to the United
States, their second child, a son, this time, and given the name Reginald Vince, was born on January 12, 1988.

The relationship of the couple deteriorated until they decided to separate sometime in 1990. Teresita blamed
Reynaldo for the break-up, stating he was always nagging her about money matters. Reynaldo, on the other hand,
contended that Teresita was a spendthrift, buying expensive jewelry and antique furniture instead of attending to
household expenses.

Instead of giving their marriage a second chance as allegedly pleaded by Reynaldo, Teresita left Reynaldo and the
children and went back to California. She claims, however, that she spent a lot of money on long distance telephone
calls to keep in constant touch with her children.

Reynaldo brought his children home to the Philippines, but because his assignment in Pittsburgh was not yet
completed, he was sent back by his company to Pittsburgh. He had to leave his children with his sister, co-petitioner
Guillerma Layug and her family.

Teresita claims that she did not immediately follow her children because Reynaldo filed a criminal case for bigamy
against her and she was afraid of being arrested. The judgment of conviction in the bigamy case was actually
rendered only on September 29, 1994. (Per Judge Harriet O. Demetriou, Branch 70, RTC, Pasig, pp. 210-222,Rollo).
Teresita, meanwhile, decided to return to the Philippines and on December 8, 1992 and filed the petition for a writ
of habeas corpus against herein two petitioners to gain custody over the children, thus starting the whole
proceedings now reaching this Court.

On June 30, 1993, the trial court dismissed the petition for habeas corpus. It suspended Teresita's parental authority
over Rosalind and Reginald and declared Reynaldo to have sole parental authority over them but with rights of
visitation to be agreed upon by the parties and to be approved by the Court.

On February 16, 1994, the Court of Appeals per Justice Isnani, with Justices de Pano and Ibay-Somera concurring,
reversed the trial court's decision. It gave custody to Teresita and visitation rights on weekends to Reynaldo.

Petitioners now come to this Court on a petition for review, in the main contending that the Court of Appeals
disregarded the factual findings of the trial court; that the Court of Appeals further engaged in speculations and
conjectures, resulting in its erroneous conclusion that custody of the children should be given to respondent Teresita.

We believe that respondent court resolved the question of custody over the children through an automatic and blind
application of the age proviso of Article 363 of the Civil Code which reads:
 Art. 363. In all questions on the care, custody, education and property of the children, the latter's
welfare shall be paramount. No mother shall be separated from her child under seven years of age,
unless the court finds compelling reasons for such measure.

and of Article 213 of the Family Code which in turn provides:

Art. 213. In case of separation of the parents parental authority shall be exercised by the parent
designated by the Court. The Court shall take into account all relevant considerations, especially
the choice of the child over seven years of age unless the parent chosen is unfit.

The decision under review is based on the report of the Code Commission which drafted Article 213 that a child
below seven years still needs the loving, tender care that only a mother can give and which, presumably, a father
cannot give in equal measure. The commentaries of a member of the Code Commission, former Court of Appeals
Justice Alicia Sempio-Diy, in a textbook on the Family Code, were also taken into account. Justice Diy believes that
a child below seven years should still be awarded to her mother even if the latter is a prostitute or is unfaithful to her
husband. This is on the theory that moral dereliction has no effect on a baby unable to understand such action.
(Handbook on the Family Code of the Philippines, 1988 Ed., p. 297.)

The Court of Appeals was unduly swayed by an abstract presumption of law rather than an appreciation of relevant
facts and the law which should apply to those facts. The task of choosing the parent to whom custody shall be
awarded is not a ministerial function to be determined by a simple determination of the age of a minor child.
Whether a child is under or over seven years of age, the paramount criterion must always be the child's interests.
Discretion is given to the court to decide who can best assure the welfare of the child, and award the custody on the
basis of that consideration. In Unson III vs. Navarro (101 SCRA 183 [1980]), we laid down the rule that "in all
controversies regarding the custody of minors, the sole and foremost consideration is the physical, education, social
and moral welfare of the child concerned, taking into account the respective resources and social and moral
situations of the contending parents", and in Medina vs. Makabali (27 SCRA 502 [1969]), where custody of the
minor was given to a non-relative as against the mother, then the country's leading civilist, Justice J.B.L. Reyes,
explained its basis in this manner:

. . . While our law recognizes the right of a parent to the custody of her child, Courts must not lose
sight of the basic principle that "in all questions on the care, custody, education and property of
children, the latter's welfare shall be paramount" (Civil Code of the Philippines. Art. 363), and that
for compelling reasons, even a child under seven may be ordered separated from the mother (do).
This is as it should be, for in the continual evolution of legal institutions, the patria potestas has
been transformed from thejus vitae ac necis (right of life and death) of the Roman law, under
which the offspring was virtually a chattel of his parents into a radically different institution, due
to the influence of Christian faith and doctrines. The obligational aspect is now supreme. As
pointed out by Puig Pena, now "there is no power, but a task; no complex of rights (of parents) but
a sum of duties; no sovereignty, but a sacred trust for the welfare of the minor."

As a result, the right of parents to the company and custody of their children is but ancillary to the
proper discharge of parental duties to provide the children with adequate support, education,
moral, intellectual and civic training and development (Civil Code, Art. 356).

(pp. 504-505.)

In ascertaining the welfare and best interests of the child, courts are mandated by the Family Code to take into
account all relevant considerations. If a child is under seven years of age, the law presumes that the mother is the
best custodian. The presumption is strong but it is not conclusive. It can be overcome by "compelling reasons". If a
child is over seven, his choice is paramount but, again, the court is not bound by that choice. In its discretion, the
court may find the chosen parent unfit and award custody to the other parent, or even to a third party as it deems fit
under the circumstances.
In the present case, both Rosalind and Reginald are now over seven years of age. Rosalind celebrated her seventh
birthday on August 16, 1993 while Reginald reached the same age on January 12, 1995. Both are studying in
reputable schools and appear to be fairly intelligent children, quite capable of thoughtfully determining the parent
with whom they would want to live. Once the choice has been made, the burden returns to the court to investigate if
the parent thus chosen is unfit to assume parental authority and custodial responsibility.

Herein lies the error of the Court of Appeals. Instead of scrutinizing the records to discover the choice of the
children and rather than verifying whether that parent is fit or unfit, respondent court simply followed statutory
presumptions and general propositions applicable to ordinary or common situations. The seven-year age limit was
mechanically treated as an arbitrary cut off period and not a guide based on a strong presumption.

A scrutiny of the pleadings in this case indicates that Teresita, or at least, her counsel are more intent on
emphasizing the "torture and agony" of a mother separated from her children and the humiliation she suffered as a
result of her character being made a key issue in court rather than the feelings and future, the best interests and
welfare of her children. While the bonds between a mother and her small child are special in nature, either parent,
whether father or mother, is bound to suffer agony and pain if deprived of custody. One cannot say that his or her
suffering is greater than that of the other parent. It is not so much the suffering, pride, and other feelings of either
parent but the welfare of the child which is the paramount consideration.

We are inclined to sustain the findings and conclusions of the regional trial court because it gave greater attention to
the choice of Rosalind and considered in detail all the relevant factors bearing on the issue of custody.

When she was a little over 5 years old, Rosalind was referred to a child psychologist, Rita Flores Macabulos, to
determine the effects of uprooting her from the Assumption College where she was studying. Four different tests
were administered. The results of the tests are quite revealing. The responses of Rosalind about her mother were
very negative causing the psychologist to delve deeper into the child's anxiety. Among the things revealed by
Rosalind was an incident where she saw her mother hugging and kissing a "bad" man who lived in their house and
worked for her father. Rosalind refused to talk to her mother even on the telephone. She tended to be emotionally
emblazed because of constant fears that she may have to leave school and her aunt's family to go back to the United
States to live with her mother. The 5-1/2 page report deals at length with feelings of insecurity and anxiety arising
from strong conflict with the mother. The child tried to compensate by having fantasy activities. All of the 8
recommendations of the child psychologist show that Rosalind chooses petitioners over the private respondent and
that her welfare will be best served by staying with them (pp. 199-205, Rollo).

At about the same time, a social welfare case study was conducted for the purpose of securing the travel clearance
required before minors may go abroad. Social Welfare Officer Emma D. Estrada Lopez, stated that the child
Rosalind refused to go back to the United States and be reunited with her mother. She felt unloved and uncared for.
Rosalind was more attached to her Yaya who did everything for her and Reginald. The child was found suffering
from emotional shock caused by her mother's infidelity. The application for travel clearance was recommended for
denial (pp. 206-209, Rollo).

Respondent Teresita, for her part, argues that the 7-year age reference in the law applies to the date when the
petition for a writ of habeas corpus is filed, not to the date when a decision is rendered. This argument is flawed.
Considerations involving the choice made by a child must be ascertained at the time that either parent is given
custody over the child. The matter of custody is not permanent and unalterable. If the parent who was given custody
suffers a future character change and becomes unfit, the matter of custody can always be re-examined and adjusted
(Unson III v. Navarro, supra, at p. 189). To be sure, the welfare, the best interests, the benefit, and the good of the
child must be determined as of the time that either parent is chosen to be the custodian. At the present time, both
children are over 7 years of age and are thus perfectly capable of making a fairly intelligent choice.

According to respondent Teresita, she and her children had tearful reunion in the trial court, with the children crying,
grabbing, and embracing her to prevent the father from taking them away from her. We are more inclined to believe
the father's contention that the children ignored Teresita in court because such an emotional display as described by
Teresita in her pleadings could not have been missed by the trial court. Unlike the Justices of the Court of Appeals
Fourth Division, Judge Lucas P. Bersamin personally observed the children and their mother in the courtroom. What
the Judge found is diametrically opposed to the contentions of respondent Teresita. The Judge had this to say on the
matter.

And, lastly, the Court cannot look at petitioner [Teresita] in similar light, or with more
understanding, especially as her conduct and demeanor in the courtroom (during most of the
proceedings) or elsewhere (but in the presence of the undersigned presiding judge) demonstrated
her ebulent temper that tended to corroborate the alleged violence of her physical punishment of
the children (even if only for ordinary disciplinary purposes) and emotional instability, typified by
her failure (or refusal?) to show deference and respect to the Court and the other parties (pp. 12-
13, RTC Decision)

Respondent Teresita also questions the competence and impartiality of the expert witnesses. Respondent court, in
turn, states that the trial court should have considered the fact that Reynaldo and his sister, herein petitioner
Guillerma Layug, hired the two expert witnesses. Actually, this was taken into account by the trial court which
stated that the allegations of bias and unfairness made by Teresita against the psychologist and social worker were
not substantiated.

The trial court stated that the professional integrity and competence of the expert witnesses and the objectivity of the
interviews were unshaken and unimpeached. We might add that their testimony remain uncontroverted. We also
note that the examinations made by the experts were conducted in late 1991, well over a year before the filing by
Teresita of the habeas corpus petition in December, 1992. Thus, the examinations were at that time not intended to
support petitioners' position in litigation, because there was then not even an impending possibility of one. That they
were subsequently utilized in the case a quo when it did materialize does not change the tenor in which they were
first obtained.

Furthermore, such examinations, when presented to the court must be construed to have been presented not to sway
the court in favor of any of the parties, but to assist the court in the determination of the issue before it. The persons
who effected such examinations were presented in the capacity of expert witnesses testifying on matters within their
respective knowledge and expertise. On this matter, this Court had occasion to rule in the case of Sali vs. Abukakar,
et al. (17 SCRA 988 [1966]).

The fact that, in a particular litigation, an NBI expert examines certain contested documents, at the
request, not of a public officer or agency of the Government, but of a private litigant, does not
necessarily nullify the examination thus made. Its purpose, presumably, to assist the court having
jurisdiction over said litigation, in the performance of its duty to settle correctly the issues relative
to said documents. Even a non-expert private individual may examine the same, if there are facts
within his knowledge which may help, the court in the determination of said issue. Such
examination, which may properly be undertaken by a non-expert private individual, does not,
certainly become null and void when the examiner is an expert and/or an officer of the NBI.

(pp. 991-992.)

In regard to testimony of expert witnesses it was held in Salomon, et al. vs. Intermediate Appellate Court, et al. (185
SCRA 352 [1990]):

. . . Although courts are not ordinarily bound by expert testimonies, they may place whatever
weight they choose upon such testimonies in accordance with the facts of the case. The relative
weight and sufficiency of expert testimony is peculiarly within the province of the trial court to
decide, considering the ability and character of the witness, his actions upon the witness stand, the
weight and process of the reasoning by which he has supported his opinion, his possible bias in
favor of the side for whom he testifies, the fact that he is a paid witness, the relative opportunities
for study and observation of the matters about which he testifies, and any other matters which
reserve to illuminate his statements. The opinion of the expert may not be arbitrarily rejected; it is
 to be considered by the court in view of all the facts and circumstances in the case and when
common knowledge utterly fails, the expert opinion may be given controlling effect (20 Am. Jur.,
1056-1058). The problem of the credibility of the expert witness and the evaluation of his
testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable in the
absence of an abuse of that discretion.

(p. 359)

It was in the exercise of this discretion, coupled with the opportunity to assess the witnesses' character and to
observe their respective demeanor that the trial court opted to rely on their testimony, and we believe that the trial
court was correct in its action.

Under direct examination an February 4, 1993, Social Worker Lopez stated that Rosalind and her aunt were about to
board a plane when they were off-loaded because there was no required clearance. They were referred to her office,
at which time Reginald was also brought along and interviewed. One of the regular duties of Social Worker Lopez
in her job appears to be the interview of minors who leave for abroad with their parents or other persons. The
interview was for purposes of foreign travel by a 5-year old child and had nothing to do with any pending litigation.
On cross-examination, Social Worker Lopez stated that her assessment of the minor's hatred for her mother was
based on the disclosures of the minor. It is inconceivable, much less presumable that Ms. Lopez would compromise
her position, ethics, and the public trust reposed on a person of her position in the course of doing her job by falsely
testifying just to support the position of any litigant.

The psychologist, Ms. Macabulos, is a B.S. magna cum laude graduate in Psychology and an M.A. degree holder
also in Psychology with her thesis graded "Excellent". She was a candidate for a doctoral degree at the time of the
interview. Petitioner Reynaldo may have shouldered the cost of the interview but Ms. Macabulos services were
secured because Assumption College wanted an examination of the child for school purposes and not because of any
litigation. She may have been paid to examine the child and to render a finding based on her examination, but she
was not paid to fabricate such findings in favor of the party who retained her services. In this instance it was not
even petitioner Reynaldo but the school authorities who initiated the same. It cannot be presumed that a professional
of her potential and stature would compromise her professional standing.

Teresita questions the findings of the trial court that:

1. Her morality is questionable as shown by her marrying Reynaldo at the time she had a
subsisting marriage with another man.

2. She is guilty of grave indiscretion in carrying on a love affair with one of the Reynaldo's fellow
NSC employees.

3. She is incapable of providing the children with necessities and conveniences commensurate to
their social standing because she does not even own any home in the Philippines.

4. She is emotionally unstable with ebullient temper.

It is contended that the above findings do not constitute the compelling reasons under the law which would justify
depriving her of custody over the children; worse, she claims, these findings are non-existent and have not been
proved by clear and convincing evidence.

Public and private respondents give undue weight to the matter of a child under 7 years of age not to be separated
from the mother, without considering what the law itself denominates as compelling reasons or relevant
considerations to otherwise decree. In the Unson III case, earlier mentioned, this Court stated that it found no
difficulty in not awarding custody to the mother, it being in the best interest of the child "to be freed from the
obviously unwholesome, not
to say immoral influence, that the situation where [the mother] had placed herself . . . might create in the moral and
social outlook of [the child] who was in her formative and most impressionable stage . . ."

Then too, it must be noted that both Rosalind and Reginald are now over 7 years of age. They understand the
difference between right and wrong, ethical behavior and deviant immorality. Their best interests would be better
served in an environment characterized by emotional stability and a certain degree of material sufficiency. There is
nothing in the records to show that Reynaldo is an "unfit" person under Article 213 of the Family Code. In fact, he
has been trying his best to give the children the kind of attention and care which the mother is not in a position to
extend.

The argument that the charges against the mother are false is not supported by the records. The findings of the trial
court are based on evidence.

Teresita does not deny that she was legally married to Roberto Lustado on December 17, 1984 in California (p. 13,
Respondent's Memorandum; p. 238, Rollo; pp. 11, RTC Decision). Less than a year later, she had already driven
across the continental United States to commence living with another man, petitioner Reynaldo, in Pittsburgh. The
two were married on October 7, 1987. Of course, to dilute this disadvantage on her part, this matter of her having
contracted a bigamous marriage later with Reynaldo, Teresita tried to picture Reynaldo as a rapist, alleging further
that she told Reynaldo about her marriage to Lustado on the occasion when she was raped by Reynaldo. Expectedly,
Judge Harriet Demetriou of the Pasig RTC lent no weight to such tale. And even if this story were given credence, it
adds to and not subtracts from the conviction of this Court about Teresita's values. Rape is an insidious crime against
privacy. Confiding to one's potential rapist about a prior marriage is not a very convincing indication that the
potential victim is averse to the act. The implication created is that the act would be acceptable if not for the prior
marriage.

More likely is Reynaldo's story that he learned of the prior marriage only much later. In fact, the rape incident itself
is unlikely against a woman who had driven three days and three nights from California, who went straight to the
house of Reynaldo in Pittsburgh and upon arriving went to bed and, who immediately thereafter started to live with
him in a relationship which is marital in nature if not in fact.

Judge Bersamin of the court a quo believed the testimony of the various witnesses that while married to Reynaldo,
Teresita entered into an illicit relationship with Perdencio Gonzales right there in the house of petitioner Reynaldo
and respondent Teresita. Perdencio had been assigned by the National Steel Corporation to assist in the project in
Pittsburgh and was staying with Reynaldo, his co-employee, in the latter's house. The record shows that the daughter
Rosalind suffered emotional disturbance caused by the traumatic effect of seeing her mother hugging and kissing a
boarder in their house. The record also shows that it was Teresita who left the conjugal home and the children,
bound for California. When Perdencio Gonzales was reassigned to the Philippines, Teresita followed him and was
seen in his company in a Cebu hotel, staying in one room and taking breakfast together. More significant is that
letters and written messages from Teresita to Perdencio were submitted in evidence (p.12, RTC Decision).

The argument that moral laxity or the habit of flirting from one man to another does not fall under "compelling
reasons" is neither meritorious nor applicable in this case. Not only are the children over seven years old and their
clear choice is the father, but the illicit or immoral activities of the mother had already caused emotional
disturbances, personality conflicts, and exposure to conflicting moral values, at least in Rosalind. This is not to
mention her conviction for the crime of bigamy, which from the records appears to have become final (pp. 210-
222,Rollo).

Respondent court's finding that the father could not very well perform the role of a sole parent and substitute mother
because his job is in the United States while the children will be left behind with their aunt in the Philippines is
misplaced. The assignment of Reynaldo in Pittsburgh is or was a temporary one. He was sent there to oversee the
purchase of a steel mill component and various equipment needed by the National Steel Corporation in the
Philippines. Once the purchases are completed, there is nothing to keep him there anymore. In fact, in a letter dated
January 30, 1995, Reynaldo informs this Court of the completion of his assignment abroad and of his permanent
return to the Philippines (ff.
p. 263, Rollo).

The law is more than satisfied by the judgment of the trial court. The children are now both over seven years old.
Their choice of the parent with whom they prefer to stay is clear from the record. From all indications, Reynaldo is a
fit person, thus meeting the two requirements found in the first paragraph of Article 213 of the Family Code. The
presumption under the second paragraph of said article no longer applies as the children are over seven years.
Assuming that the presumption should have persuasive value for children only one or two years beyond the age of
seven years mentioned in the statute, there are compelling reasons and relevant considerations not to grant custody
to the mother. The children understand the unfortunate shortcomings of their mother and have been affected in their
emotional growth by her behavior.

WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals is reversed and set aside,
and the decision of Branch 96 of the Regional Trial Court of the National Capital Judicial Region stationed in
Quezon City and presided over by the Honorable Lucas P. Bersamin in its Civil Case No. Q-92-14206 awarding
custody of the minors Rosalind and Reginald Espiritu to their father, Reynaldo Espiritu, is reinstated. No special
pronouncement is made as to costs.

SO ORDERED.

LEOUEL SANTOS, SR., petitioner-appellant, 

vs.
COURT OF APPEALS, and SPOUSES LEOPOLDO and OFELIA BEDIA, respondents-appellees.

ROMERO, J.:

In this petition for review, we are asked to overturn the decision of the Court of Appeals 1 granting custody of six-
year old Leouel Santos, Jr. to his maternal grandparents and not to his father, Santos, Sr. What is sought is a decision
which should definitively settle the matter of the care, custody and control of the boy.

Happily, unlike King Solomon, we need not merely rely on a "wise and understanding heart," for there is man's law
to guide us and that is, the Family Code.

The antecedent facts giving rise to the case at bench are as follows:

Petitioner Leouel Santos, Sr., an army lieutenant, and Julia Bedia a nurse by profession, were married in Iloilo City
in 1986. Their union beget only one child, Leouel Santos, Jr. who was born July 18, 1987.

From the time the boy was released from the hospital until sometime thereafter, he had been in the care and custody
of his maternal grandparents, private respondents herein, Leopoldo and Ofelia Bedia.

Petitioner and wife Julia agreed to place Leouel Jr. in the temporary custody of the latter's parents, the respondent
spouses Bedia. The latter alleged that they paid for all the hospital bills, as well as the subsequent support of the boy
because petitioner could not afford to do so.

The boy's mother, Julia Bedia-Santos, left for the United States in May 1988 to work. Petitioner alleged that he is
not aware of her whereabouts and his efforts to locate her in the United States proved futile. Private respondents
claim that although abroad, their daughter Julia had been sending financial support to them for her son.
On September 2, 1990, petitioner along with his two brothers, visited the Bedia household, where three-year old
Leouel Jr. was staying. Private respondents contend that through deceit and false pretensions, petitioner abducted the
boy and clandestinely spirited him away to his hometown in Bacong, Negros Oriental.

The spouses Bedia then filed a "Petition for Care, Custody and Control of Minor Ward Leouel Santos Jr.," before
the Regional Trial Court of Iloilo City, with Santos, Sr. as respondent. 2

After an ex-parte hearing on October 8, 1990, the trial court issued an order on the same day awarding custody of
the child Leouel Santos, Jr. to his grandparents, Leopoldo and Ofelia Bedia. 3

Petitioner appealed this Order to the Court of Appeals. 4 In its decision dated April 30, 1992, respondent appellate
court affirmed the trial court's 
order. 5 His motion for reconsideration having been denied, 6 petitioner now brings the instant petition for review for
a reversal of the appellate court's decision.

The Court of Appeals erred, according to petitioner, in awarding custody of the boy to his grandparents and not to
himself. He contends that since private respondents have failed to show that petitioner is an unfit and unsuitable
father, substitute parental authority granted to the boy's grandparents under Art. 214 of the Family Code is
inappropriate.

Petitioner adds that the reasons relied upon by the private respondents in having custody over the boy, are flimsy
and insufficient to deprive him of his natural and legal right to have custody.

On the other hand, private respondents aver that they can provide an air-conditioned room for the boy and that
petitioner would not be in a position to take care of his son since he has to be assigned to different places. They also
allege that the petitioner did not give a single centavo for the boy's support and maintenance. When the boy was
about to be released from the hospital, they were the ones who paid the fees because their daughter and petitioner
had no money. Besides, Julia Bedia Santos, their daughter, had entrusted the boy to them before she left for the
United States. Furthermore, petitioner's use of trickery and deceit in abducting the child in 1990, after being
hospitably treated by private respondents, does not speak well of his fitness and suitability as a parent.

The Bedias argue that although the law recognizes the right of a parent to his child's custody, ultimately the primary
consideration is what is best for the happiness and welfare of the latter. As maternal grandparents who have amply
demonstrated their love and affection for the boy since his infancy, they claim to be in the best position to promote
the child's welfare.

The issue to be resolved here boils down to who should properly be awarded custody of the minor Leouel Santos, Jr.

The right of custody accorded to parents springs from the exercise of parental authority. Parental authority or patria
potestas in Roman Law is the juridical institution whereby parents rightfully assume control and protection of their
unemancipated children to the extent required by the latter' s needs. 7 It is a mass of rights and obligations which the
law grants to parents for the purpose of the children's physical preservation and development, as well as the
cultivation of their intellect and the education of their heart and senses. 8 As regards parental authority, "there is no
power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the
minor." 9

Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases
authorized by law. 10 The right attached to parental authority, being purely personal, the law allows a waiver of
parental authority only in cases of adoption, guardianship and surrender to a children's home or an orphan
institution. 11 When a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a
document, what is given is merely temporary custody and it does not constitute a renunciation of parental
authority. 12 Even if a definite renunciation is manifest, the law still disallows the same. 13
The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep
them in their custody and 
company. 14 The child's welfare is always the paramount consideration in all questions concerning his care and
custody. 15

The law vests on the father and mother joint parental authority over the persons of their common children. 16 In case
of absence or death of either parent, the parent present shall continue exercising parental authority. 17 Only in case
of the parents' death, absence or unsuitability may substitute parental authority be exercised by the surviving
grandparent. 18 The situation obtaining in the case at bench is one where the mother of the minor Santos, Jr., is
working in the United States while the father, petitioner Santos, Sr., is present. Not only are they physically apart but
are also emotionally separated. There has been no decree of legal separation and petitioner's attempt to obtain an
annulment of the marriage on the ground of psychological incapacity of his wife has failed. 19

Petitioner assails the decisions of both the trial court and the appellate court to award custody of his minor son to his
parents-in-law, the Bedia spouses on the ground that under Art. 214 of the Family Code, substitute parental authority
of the grandparents is proper only when both parents are dead, absent or unsuitable. Petitioner's unfitness, according
to him, has not been successfully shown by private respondents.

The Court of Appeals held that although there is no evidence to show that petitioner (Santos Sr.) is "depraved, a
habitual drunkard or poor, he may nevertheless be considered, as he is in fact so considered, to be unsuitable to be
allowed to have custody of minor Leouel Santos Jr." 20

The respondent appellate court, in affirming the trial court's order of October 8, 1990, adopted as its own the latter's
observations, to wit:

From the evidence adduced, this Court is of the opinion that it is to be (sic) best interest of the
minor Leouel Santos, Jr. that he be placed under the care, custody, and control of his maternal
grandparents the petitioners herein. The petitioners have amply demonstrated their love and
devotion to their grandson while the natural father, respondent herein, has shown little interest in
his welfare as reflected by his conduct in the past. Moreover the fact that petitioners are well-off
financially, should be carefully considered in awarding to them the custody of the minor herein,
lest the breaking of such ties with his maternal grandparents might deprive the boy of an eventual
college education and other material advantages (Consaul vs. Consaul, 63 N.Y.S. 688).
Respondent had never given any previous financial support to his son, while, upon the other hand,
the latter receives so much bounty from his maternal grandparents and his mother as well, who is
now gainfully employed in the United States. Moreover, the fact that respondent, as a military
personnel who has to shuttle from one assignment to another, and, in these troubled times, may
have pressing and compelling military duties which may prevent him from attending to his son at
times when the latter needs him most, militates strongly against said respondent. Additionally, the
child is sickly and asthmatic and needs the loving and tender care of those who can provide for
it. 21

We find the aforementioned considerations insufficient to defeat petitioner's parental authority and the concomitant
right to have custody over the minor Leouel Santos, Jr., particularly since he has not been shown to be an unsuitable
and unfit parent. Private respondents' demonstrated love and affection for the boy, notwithstanding, the legitimate
father is still preferred over the grandparents. 22 The latter's wealth is not a deciding factor, particularly because there
is no proof that at the present time, petitioner is in no position to support the boy. The fact that he was unable to
provide financial support for his minor son from birth up to over three years when he took the boy from his in-laws
without permission, should not be sufficient reason to strip him of his permanent right to the child's custody. While
petitioner's previous inattention is inexcusable and merits only the severest criticism, it cannot be construed as
abandonment. His appeal of the unfavorable decision against him and his efforts to keep his only child in his
custody may be regarded as serious efforts to rectify his past misdeeds. To award him custody would help enhance
the bond between parent and son. It would also give the father a chance to prove his love for his son and for the son
to experience the warmth and support which a father can give.
His being a soldier is likewise no bar to allowing him custody over the boy. So many men in uniform who are
assigned to different parts of the country in the service of the nation, are still the natural guardians of their children.
It is not just to deprive our soldiers of authority, care and custody over their children merely because of the normal
consequences of their duties and assignments, such as temporary separation from their families.

Petitioner's employment of trickery in spiriting away his boy from his in-laws, though unjustifiable, is likewise not a
ground to wrest custody from him.

Private respondents' attachment to the young boy whom they have reared for the past three years is understandable.
Still and all, the law considers the natural love of a parent to outweigh that of the grandparents, such that only when
the parent present is shown to be unfit or unsuitable may the grandparents exercise substitute parental authority, a
fact which has not been proven here.

The strong bonds of love and affection possessed by private respondents as grandparents should not be seen as
incompatible with petitioner' right to custody over the child as a father. Moreover, who is to say whether the
petitioner's financial standing may improve in the future?

WHEREFORE, the petition is GRANTED. The decision of the respondent Court of Appeals dated April 30, 1992 as
well as its Resolution dated November 13, 1992 are hereby REVERSED and SET ASIDE. Custody over the minor
Leouel Santos Jr. is awarded to his legitimate father, herein petitioner Leouel Santos, Sr.

SO ORDERED.

TERESITA SAGALA-ESLAO, petitioner, 
vs.
COURT OF APPEALS and MARIA PAZ CORDERO-OUYE, respondents.

TORRES, JR., J.:

Children begin by loving their parents. After a time they judge them. Rarely, if ever, do they forgive them. 1 Indeed,
parenthood is a riddle of no mean proportions except for its mission. Thus, a mother's concern for her child's custody
is undying — such is a mother's love.

The right of the mother to the custody of her daughter is the issue in the case at bar.

In this petition for review, Teresita Sagala-Eslao seeks the reversal of the Court of Appeals decision 2 dated March
25, 1994, which affirmed the trial court's judgment granting the petition of Maria Paz Cordero-Ouye to recover the
custody of her minor daughter from her mother-in-law, Teresita Sagala-Eslao.

As found by the Court of Appeals, the facts of the case are as follows:

From the evidence, it appears that on June 22, 1984, petitioner Maria Paz Cordero-Ouye and Reynaldo
Eslao were married; 3 after their marriage, the couple stayed with respondent Teresita Eslao, mother of the
husband, at 1825, Road 14, Fabie Estate, Paco, Manila; that out of their marriage, two children were
begotten, namely, Leslie Eslao who was born on February 23, 1986 and Angelica Eslao who was born on
April 20,
1987; 4 in the meantime, Leslie was entrusted to the care and custody of petitioner's mother in Sta. Ana,
Pampanga, while Angelica stayed with her parents at respondent's house; on August 6, 1990, petitioner's
husband Reynaldo Eslao died; 5 petitioner intended to bring Angelica with her to Pampanga but the
 respondent prevailed upon her to entrust the custody of Angelica to her, respondent reasoning out that her
son just died and to assuage her grief therefor, she needed the company of the child to at least compensate
for the loss of her late son. In the meantime, the petitioner returned to her mother's house in Pampanga
where she stayed with Leslie.

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

After the trial on the merits, the lower court rendered its decision, the dispositive portion of which reads:

WHEREFORE, finding the petition to be meritorious, the Court grants the same and let the corresponding
writ issue. As a corollary, respondent Teresita Sagala-Eslao or anyone acting under her behalf is hereby
directed to cause the immediate transfer of the custody of the minor Angelica Cordero Eslao, to her natural
mother, petitioner Maria Paz Cordero-Ouye.

No pronouncement as to costs.

SO ORDERED.

On appeal, the respondent court affirmed in full the decision of the trial court.

Hence, the instant petition by the minor's paternal grandmother, contending that the Court of Appeals erred:

IN RULING THAT PRIVATE RESPONDENT MARIA PAZ CORDERO-OUYE, DID NOT ABANDON
MINOR, ANGELICA ESLAO, TO THE CARE AND CUSTODY OF THE PETITIONER TERESITA
SAGALA-ESLAO.

II

IN RULING THAT THERE WAS NO COMPELLING REASON TO SEPARATE MINOR, ANGELICA

ESLAO, FROM PRIVATE RESPONDENT MARIA PAZ CORDERO-OUYE, IN FAVOR OF
PETITIONER TERESITA SAGALA-ESLAO.

III

IN NOT FINDING THAT PETITIONER TERESITA SAGALA-ESLAO, IS FIT TO BE GIVEN THE

CUSTODY OF MINOR, ANGELICA ESLAO.
The petition is without merit.

Being interrelated, the issues shall be discussed jointly.

Petitioner argues that she would be deserving to take care of Angelica; that she had managed to raise 12 children of
her own herself; that she has the financial means to carry out her plans for Angelica; that she maintains a store which
earns a net income of about P500 a day, she gets P900 a month as pension for the death of her husband, she rents out
rooms in her house which she owns, for which she earns a total of P6,000 a month, and that from her gross income
of roughly P21,000, she spends about P10,000 for the maintenance of her house.

Despite the foregoing, however, and petitioner's "genuine desire to remain with said child, that would qualify her to
have custody of Angelica," the trial court's disquisition, in consonance with the provision that the child's welfare is
always the paramount consideration in all questions concerning his care and custody 8 convinced this Court to decide
in favor of private respondent, thus:

On the other hand, the side of the petitioner must also be presented here. In this case, we see a picture of a
real and natural mother who is —

. . . legitimately, anxiously, and desperately trying to get back her child in order to fill the
void in her heart and existence. She wants to make up for what she has failed to do for
her boy during the period when she was financially unable to help him and when she
could not have him in her house because of the objection of the father. Now that she has
her own home and is in a better financial condition, she wants her child back, and we
repeat that she has not and has never given him up definitely or with any idea of
permanence. 9

The petitioner herein is married to an Orthodontist who has lucrative practice of his profession in San
Francisco, California, USA. The petitioner and her present husband have a home of their own and they
have three cars. The petitioner's husband is willing to adopt the petitioner's children. If the children will be
with their mother, the probability is that they will be afforded a bright future. Contrast this situation with
the one prevailing in the respondent's [grandmother's] house. As admitted by the respondent, four of the
rooms in her house are being rented to other persons with each room occupied by 4 and 5 persons. Added
to these persons are the respondent's 2 sons, Samuel and Alfredo, and their respective families (ibid., p. 54)
and one can just visualize the kind of atmosphere pervading thereat. And to aggravate the situation, the
house has only 2 toilets and 3 faucets. Finally, considering that in all controversies involving the custody of
minors, the foremost criterion is the physical and moral well being of the child taking into account the
respective resources and social and moral situations of the contending parties (Union III vs. Mariano, 101
SCRA 183), the Court is left with no other recourse but to grant the writ prayed for. 10

Petitioner further contends that the respondent court erred in finding that there was no abandonment committed by
the private respondent; that while judicial declaration of abandonment of the child in a case filed for the purpose is
not her obtaining as mandated in Art. 229 of the Family Code because petitioner failed to resort to such judicial
action, it does not ipso facto follow that there was in fact no abandonment committed by the private respondent.

Petitioner also argues that it has been amply demonstrated during the trial that private respondent had indeed
abandoned Angelica to the care and custody of the petitioner; that during all the time that Angelica stayed with
petitioner, there were only three instances or occasions wherein the private respondent saw Angelica; that private
respondent never visited Angelica on important occasions, such as her birthday, and neither did the former give her
cards or gifts, "not even a single candy;" 11 that while private respondent claims otherwise and that she visited
Angelica "many times" and insists that she visited Angelica as often as four times a month and gave her
remembrances such as candies and clothes, she would not even remember when the fourth birthday of Angelica was.

We are not persuaded by such averments.

In Santos, Sr. vs. Court of Appeals, 242 SCRA 407, 12 we stated, viz:

. . . [Parental authority] is a mass of rights and obligations which the law grants to parents for the purpose
of the children's physical preservation and development, as well as the cultivation of their intellect and the
education of their heart and senses. 13 As regards parental authority, "there is no power, but a task; no
complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the minor." 14

Parental authority and responsibility are inalienable and may not be transferred or renounced except in
cases authorized by law. 15 The right attached to parental authority, being purely personal, the law allows a
waiver of parental authority only in cases of adoption, guardianship and surrender to a children's home or
an orphan institution.16 When a parent entrusts the custody of a minor to another, such as a friend or
godfather, even in a document, what is given is merely temporary custody and it does not constitute a
renunciation of parental authority. 17 Even if a definite renunciation is manifest, the law still disallows the
same. 18

The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled
to keep them in their custody and company. 19

Thus, in the instant petition, when private respondent entrusted the custody of her minor child to the petitioner, what
she gave to the latter was merely temporary custody and it did not constitute abandonment or renunciation of
parental authority. For the right attached to parental authority, being purely personal, the law allows a waiver of
parental authority only in cases of adoption, guardianship and surrender to a children's home or an orphan institution
which do not appear in the case at bar.

Of considerable importance is the rule long accepted by the courts that "the right of parents to the custody of their
minor children is one of the natural rights incident to parenthood, a right supported by law and sound public policy.
The right is an inherent one, which is not created by the state or decisions of the courts, but derives from the nature
of the parental relationship. 20

IN VIEW WHEREOF, the decision appealed from dated March 25, 1994 being in accordance with law and the
evidence, the same is hereby AFFIRMED and the petition DISMISSED for lack of merit.

SO ORDERED.

REYMOND B. LAXAMANA, petitioner, vs. MA. LOURDES* D. LAXAMANA, respondent.

DECISION
YNARES-SANTIAGO, J.:

This is another sad tale of an estranged couple’s tug-of-war over the custody of their minor children.  Petitioner
Reymond B. Laxamana and respondent Ma. Lourdes D. Laxamana met sometime in 1983.  Petitioner, who came
from a well-to-do family, was a graduate of Bachelor of Laws, while respondent, a holder of a degree in banking and
finance, worked in a bank.  After a whirlwind courtship, petitioner, 31 years old and respondent, 33, got married on
June 6, 1984.[1] Respondent quit her job and became a full-time housewife.  Petitioner, on the other hand, operated
buy and sell, fishpond, and restaurant businesses for a living.  The union was blessed with three children – twin
brothers Joseph and Vincent, born on March 15, 1985, and Michael, born on June 19, 1986.[2]
All went well until petitioner became a drug dependent.  In October 1991, he was confined at the Estrellas
Home Care Clinic in Quezon City.  He underwent psychotherapy and psychopharmacological treatment and was
discharged on November 16, 1991.[3] Upon petition of respondent, the Regional Trial Court of Quezon City, Branch
101, ordered petitioner’s confinement at the NARCOM-DRC for treatment and rehabilitation.[4] Again, on October
30, 1996, the trial court granted petitioner’s voluntary confinement for treatment and rehabilitation at the National
Bureau of Investigation-TRC.[5]
 On April 25, 1997, the court issued an order declaring petitioner “already drug-free” and directing him to
report to a certain Dr. Casimiro “for out-patient counseling for 6 months to one (1) year.”[6]
Despite several confinements, respondent claimed petitioner was not fully rehabilitated.  His drug dependence
worsened and it became difficult for respondent and her children to live with him.  Petitioner allegedly became
violent and irritable.  On some occasions, he even physically assaulted respondent.  Thus, on June 17, 1999,
respondent and her 3 children abandoned petitioner and transferred to the house of her relatives.
On August 31, 1999, petitioner filed with the Regional Trial Court of Quezon City, Branch 107, the instant
petition for habeas corpus praying for custody of his three children. [7] Respondent opposed the petition, citing the
drug dependence of petitioner.[8]
Meanwhile, on September 24, 1999, respondent filed a petition for annulment of marriage with Branch 102 of
the Regional Trial Court of Quezon City.[9]
On September 27, 1999, petitioner filed in the habeas corpus case, a motion seeking visitation rights over his
children.[10] On December 7, 1999, after the parties reached an agreement, the court issued an order granting
visitation rights to petitioner and directing the parties to undergo psychiatric and psychological examination by a
psychiatrist of their common choice.  The parties further agreed to submit the case for resolution after the trial
court’s receipt of the results of their psychiatric examination.  The full text of said order reads:

The parties appeared with their respective lawyers.  A conference was held in open Court and the parties agreed on
the following:

Effective this Saturday and every Saturday thereafter until further order the petitioner shall fetch the children every
Saturday and Sunday at 9:00 o’clock in the morning from the house of the sister of respondent, Mrs. Corazon
Soriano and to be returned at 5:00 o’clock in the afternoon of the same days.

That the parties agreed to submit themselves to Dr. Teresito Ocampo for psychiatric/psychological examination.  Dr.
Ocampo is hereby advised to go over the records of this case to enable him to have a thorough background of the
problem.  He is hereby ordered to submit his findings directly to this Court without furnishing the parties copies of
his report.  And after the receipt of that report, thereafter, the case shall be deemed submitted for decision.[11]

On January 6, 2000, Dr. Ocampo submitted the results of his psychiatric evaluation on the parties and their
children.  Pertinent portions thereof state:

SINGLY and COLLECTIVELY, the following information was obtained in the interview of the 3 children:

(1)      THEY were affected psychologically by the drug-related behavior of their father:

a.       they have a difficult time concentrating on their studies.

b.       they are envious of their classmates whose families live in peace and harmony.

c.        once, MICHAEL had to quit school temporarily.

(2)      THEY witnessed their father when he was under the influence of “shabu”.

(3)      THEY think their father had been angry at their paternal grandmother and this anger was displaced to their
mother.

(4)      THEY hope their father will completely and permanently recover from his drug habit; and their criteria of his
full recovery include:
a.       he will regain his “easy-going” attitude.

b.       he won’t be hot-headed anymore and would not drive their van recklessly.

c.        he would not tell unverifiable stories anymore.

d.       he would not poke a gun on his own head and ask the children who they love better, mom or dad.

(5)      At one point one of the sons, became very emotional while he was narrating his story and he cried.  I had to
stop the interview.

(6)      THEIR mother was fearful and terrified when their father quarreled with her.

(7)      THEY hope their visits to their father will not interfere with their school and academic schedules.

 x x x                             x x x                                 x x x

(3)      MARILOU is one of 4 siblings.  She graduated from college with a degree in banking and finance.  SHE was
a carreer  (sic) woman; worked for a bank for ten years; subsequently quit her job to devote more time to her family.

(4)      REYMOND is one of 5 siblings in a well-to-do family.  His father was a physician.  During his

developmental years, he recalled how his mother complained incessantly about how bad the father was; only to find
later that the truth was opposite to the complaints of his mother; that his father was nice, logical and
understanding.  He recalled how he unselfishly served his father --- he opened the door when he arrived home; he
got his portfolio; he brought the day’s newspaper; he removed his shoes; he brought his glass of beer or his shot of
whisky.  In short, he served him like a servant.  His father died of stroke in 1990.

REYMOND graduated from college with a degree in LAW in 1984; he did not pass the bar.

His work history is as follows:

a.       1985 to 1989 – he operated fishponds.

b.       1976 to 1991 – simultaneously, he operated restaurant.

c.        1991 he engaged in the trading of vegetable, cooking oil, and mangos.

d.       HE handled the leasing of a family property to a fast food company.

The findings on the examination of the MENTAL STATUS and MENTAL PROCESSES OF MARILOU showed a
woman who showed the psychological effects of the trauma she had in the past.  She is slightly edgy and fidgety
with any external noise. SHE answered all my questions coherently.  Her emotional state was stable throughout the
interview.  She is of average intelligence.  She was oriented to person, place and date.  Her memory for recent and
remote events was intact.  She could process sets of figures and sets of similarities and differences.  Her content of
thought was negative for delusions, hallucinations, paranoia, suicidal and homicidal ideation.  She could process
abstract ideas and general information.  Her attention span was adequate.  There was no evidence of impaired
judgment.

The Rorschach ink blot test gave responses such as “man touching a woman…, 2 people on a hi-five …, 2 women
chatting,… beast…, stuffed animal…, etc”. Her past reflected on her psyche.  There is no creative process.  There
were no bizarre ideas.
The ZUNG anxiety/depression test highlighted “I get tired for no reason”; “I feel that I am useful and needed” (re,
son).  There is moderate depression.  However, she could still make competent decisions.

The Social Adaptation Scale scored well in her capacity to adapt to her situation.  There is no evidence of losing
control.

The findings on the examination of the MENTAL STATUS and MENTAL PROCESSES of REYMOND showed an
individual who presented himself in the best situation he could possibly be.  He is cool, calm and collected.  He
answered all my questions coherently.  He is of average intelligence.  He was oriented to person, place and date.  His
memory for recent and remote events was intace (sic).  His content of thought was negative for delusions,
hallucinations, paranoia, suicidal and homicidal ideation.  His attention span was adequate.  He could process
abstract ideas, sets of figures, and general information.

The Rorschach ink blot test gave responses such as “distorted chest …, butterfly with scattered color…, cat ran over
by a car…, nothing… 2 people…, monster etc”. There is no central theme in his responses.  There were no bizarre
ideas.

The Zung anxiety/depression test: “My mind is as clear as it used to be” (most of the time).  There was no evidence
of brain damage.  There is no significant affective response that would affect his rationality.

The Social Adaptive Scale scored well in his capacity to adapt to his situation. He reached out well to others.  He is
in very good control of his emotions.

BASED ON MY FINDINGS I MADE THE FOLLOWING COMMENTS AND CONCLUSIONS:

I.   The CRITERIA for cure in drug addiction consist of:

1.       5-years and 10-years intervals of drug-free periods.

2.       change for the better of the maladaptive behaviors of the addict consisting of telling lies,
manipulative behavior, melodramatic and hysterical actions.

3.       constructive and reproductive outlets for the mental and physical energies of the addict.

4.       behavior oriented towards spiritual values and other things.

II   BASED on such scientific and observable criteria, I do not yet consider REYMOND LAXAMANA
completely cured even though his drug urine test at Medical City for “shabu” was negative. (Emphasis
supplied)

III   I DO NOT DETECT any evidence that the paternal visits of the sons would be harmful or they would be in any
danger.  The academic schedules of the sons has be taken into account in determining the length and frequency of
their visits.

x x x                              x x x                                 x x x.[12]

On January 14, 2000, the trial court rendered the assailed decision awarding the custody of the three children to
respondent and giving visitation rights to petitioner. The dispositive portion thereof states:

WHEREFORE, in view of the foregoing, judgment is hereby rendered:

1.       The children, Joseph, Michael and Vincent all surnamed Laxamana are hereby ordered to remain under the
custody of the respondent.

2.       The visitation arrangement as per Order of December 7, 1999 is hereby incorporated and forms part of this
Decision. The parties are enjoined to comply with the terms stated therein.

3.       The petitioner is hereby ordered to undergo “urine drug screen” for “shabu” for three times (3x) per month
every ten (10) days, with the Dangerous Drugs Board.  The said Board is hereby ordered to submit the results of all
tests immediately as directed to this Court.

4.       The petitioner is hereby referred to undergo regular counseling at the Free-Clinic at the East Avenue Medical
Center, Department of Health Out Patient Psychiatry Department until further order.  For this purpose, it is
suggested that he should see Dr. Teresito P. Ocampo to make arrangements for said counseling.

Let copies of this Decision be furnished the Dangerous Drugs Board and the Free-Clinic, Out Patient Psychiatry
Department, East Avenue Medical Center, Department of Health for their information and guidance.

SO ORDERED.[13]

Aggrieved, petitioner filed the instant petition for review on certiorari under Rule 45 of the Rules of Court,
based on the following:
I

THE COURT A QUO HAS DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL
PROCEEDINGS WHEN IT RESOLVED THE ISSUE OF CUSTODY WITHOUT CONDUCTING A TRIAL TO
DETERMINE FACTUAL ISSUES.

II

THE COURT A QUO HAS RESOLVED THE ISSUE OF CUSTODY IN A MANNER NOT IN ACCORD WITH
LAW AND WITH THE APPLICABLE DECISIONS OF THIS HONORABLE SUPREME COURT WHEN IT
RESOLVED THE ISSUE OF CUSTODY WITHOUT CONSIDERING THE PARAMOUNT INTEREST AND
WELFARE OF HEREIN PARTIES’ THREE (3) MINOR CHILDREN.

III

THE ASSAILED DECISION IS NULL AND VOID AS IT DOES NOT COMPLY WITH SECTION 14 ARTICLE
VIII OF THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES.[14]

The core issue for resolution in the instant petition is whether or not the trial court considered the paramount
interest and welfare of the children in awarding their custody to respondent.
In controversies involving the care, custody and control of their minor children, the contending parents stand
on equal footing before the court who shall make the selection according to the best interest of the child.  The child
if over seven years of age may be permitted to choose which parent he/she prefers to live with, but the court is not
bound by such choice if the parent so chosen is unfit.  In all cases, the sole and foremost consideration is the
physical,  educational, social and moral welfare of the child concerned, taking into account the respective resources
as well as social and moral situations of the opposing parents.[15]
In Medina v. Makabali,[16] we stressed that this is as it should be, for in the continual evolution of legal
institutions, the patria potestas has been transformed from the jus vitae ac necis (right of life and death) of the
Roman law, under which the offspring was virtually a chattel of his parents, into a radically different institution, due
to the influence of Christian faith and doctrines. The obligational aspect is now supreme.  There is no power, but a
task; no complex rights of parents but a sum of duties; no sovereignty, but a sacred trust for the welfare of the minor.
Mindful of the nature of the case at bar, the court a quo should have conducted a trial notwithstanding the
agreement of the parties to submit the case for resolution on the basis, inter alia, of the psychiatric report of Dr.
Teresito.  Thus, petitioner is not estopped from questioning the absence of a trial considering that said psychiatric
report, which was the 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. [17] While petitioner
may have a history of drug dependence, the records are inadequate as to his moral, financial and social well-
being.  The results of the psychiatric evaluation showing that he is not yet “completely cured” may render him unfit
to take custody of the children, but there is no evidence to show that respondent is unfit to provide the children with
adequate support, education, as well as moral and intellectual training and development.  Moreover, the children in
this case were 14 and 15 years old at the time of the promulgation of the decision, yet the court did not ascertain
their choice as to which parent they want to live with.   In its September 8, 1999 order, the trial court merely stated
that:  “The children were asked as to whether they would like to be with petitioner but there are indications that they
entertain fears in their hearts and want to be sure that their father is no longer a drug dependent.”[18] There is no
showing that the court ascertained the categorical choice of the children. These inadequacies could have been
remedied by an exhaustive trial probing into the accuracy of Dr. Ocampo’s report and the capacity of both parties to
raise their children.  The trial court was remiss in the fulfillment of its duties when it approved the agreement of the
parties to submit the case for decision on the basis of sketchy findings of facts.
In Lacson v. Lacson,[19] the case was remanded to the trial court with respect to the issue of custody.  In the said
case, the court a quo resolved the question of the children’s custody based on the amicable settlement of the
spouses.  Stressing the need for presentation of evidence and a thorough proceedings, we explained –

It is clear that … every child [has] rights which are not and should not be dependent solely on the wishes, much less
the whims and caprices, of his parents. His welfare should not be subject to the parents' say-so or mutual agreement
alone. Where, as in this case, the parents are already separated in fact, the courts must step in to determine in whose
custody the child can better be assured the rights granted to him by law. The need, therefore, to present evidence
regarding this matter, becomes imperative. A careful scrutiny of the records reveals that no such evidence was
introduced in the CFI. This latter court relied merely on the mutual agreement of the spouses-parents. To be sure,
this was not sufficient basis to determine the fitness of each parent to be the custodian of the children.

Besides, at least one of the children — Enrique, the eldest — is now eleven years of age and should be given the
choice of the parent he wishes to live with. x x x.

In the instant case, the proceedings before the trial court leave much to be desired.  While a remand of this case
would mean further delay, the children’s paramount interest demand that further proceedings be conducted to
determine the fitness of both petitioner and respondent to assume custody of their minor children.
WHEREFORE, in view of all the foregoing, the instant case is REMANDED to the Regional Trial Court of
Quezon City, Branch 107, for the purpose of receiving evidence to determine the fitness of petitioner and respondent
to take custody of their children.  Pending the final disposition of this case, custody shall remain with respondent but
subject to petitioner’s visitation rights in accordance with the December 7, 1999 order of the trial court.
SO ORDERED.

CRISANTO RAFAELITO G. GUALBERTO V, petitioner, vs. COURT OF APPEALS; Hon. HELEN B.

RICAFORT, Presiding Judge, Regional Trial Court Parañaque City, Branch 260; and JOYCELYN D.
PABLO-GUALBERTO, respondents.

DECISION
PANGANIBAN, J.:

When love is lost between spouses and the marriage inevitably results in separation, the bitterest tussle is often
over the custody of their children.  The Court is now tasked to settle the opposing claims of the parents for
custody pendente lite of their child who is less than seven years of age.  There being no sufficient proof of any
compelling reason to separate the minor from his mother, custody should remain with her.

The Case

Before us are two consolidated petitions.  The first is a Petition for Review[1] filed by Joycelyn Pablo-
Gualberto under Rule 45 of the Rules of Court, assailing the August 30, 2002 Decision [2] of the Court of Appeals
(CA) in CA-GR SP No. 70878.  The assailed Decision disposed as follows:

“WHEREFORE, premises considered, the Petition for Certiorari is hereby GRANTED.  The assailed Order of
May 17, 2002 is hereby SET ASIDE andANNULLED.  The custody of the child is hereby ordered returned to
[Crisanto Rafaelito G. Gualberto V].

“The [respondent] court/Judge is hereby directed to consider, hear and resolve [petitioner’s] motion to lift the award
of custody pendente lite of the child to [respondent].”[3]

The second is a Petition for Certiorari[4] filed by Crisanto Rafaelito Gualberto V under Rule 65 of the Rules of
Court, charging the appellate court with grave abuse of discretion for denying his Motion for Partial Reconsideration
of the August 30, 2002 Decision.  The denial was contained in the CA’s November 27, 2002 Resolution, which we
quote:

“We could not find any cogent reason why the [last part of the dispositive portion of our Decision of August 30,
2002] should be deleted, hence, subject motion is hereby DENIED.”[5]

The Facts

The CA narrated the antecedents as follows:

“x x x [O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto V] filed before [the Regional Trial Court of
Parañaque City] a petition for declaration of nullity of his marriage to x x x Joycelyn D. Pablo Gualberto, with an
ancillary prayer for custody pendente lite of their almost 4-year-old son, minor Rafaello (the child, for brevity),
whom [Joycelyn] allegedly took away with her from the conjugal home and his school (Infant Toddler’s Discovery
Center in Parañaque City) when [she] decided to abandon [Crisanto] sometime in early February 2002[.] x x x [O]n
April 2, 2002, [RTC Judge Helen B. Ricafort] heard the ancillary prayer of [Crisanto] for custody pendente lite. x x
x [B]ecause [Joycelyn] allegedly failed to appear despite notice, [Crisanto], a certain Col. Renato Santos, and Ms.
Cherry Batistel, testified before the x x x Judge; x x x documentary evidence [was] also presented[.] x x x [O]n April
3, 2002, x x x [the] Judge awarded custody pendente lite of the child to [Crisanto.]  [T]he Order partly read x x x:

‘x x x Crisanto Rafaelito Gualberto V testified.  He stated that [Joycelyn] took their minor child with her to
Caminawit, San Jose, Occidental Mindoro.  At that time, the minor was enrolled at B.F. Homes, Parañaque City. 
Despite effort[s] exerted by him, he has failed to see his child.  [Joycelyn] and the child are at present staying with
the former’s step-father at the latter’s [residence] at Caminawit, San Jose, Occidental Mindoro.
‘Renato Santos, President of United Security Logistic testified that he was commissioned by [Crisanto] to conduct
surveillance on [Joycelyn] and came up with the conclusion that [she] is having lesbian relations with one Noreen
Gay Cuidadano in Cebu City.

‘The findings of Renato Santos [were] corroborated by Cherry Batistel, a house helper of the spouses who stated that
[the mother] does not care for the child as she very often goes out of the house and on one occasion, she saw
[Joycelyn] slapping the child.

‘Art. 211 of the Family Code provides as follows:

‘The father and the mother shall jointly exercise parental authority over the persons of their children.  In the case of
disagreement, the father’s decision shall prevail, unless there is a judicial order to the contrary.’

‘The authority of the father and mother over their children is exercised jointly.  This recognition, however, does not
place her in exactly the same place as the father; her authority is subordinated to that of the father.

‘In all controversies regarding the custody of minors, the sole and foremost consideration is the physical,
educational, social and moral welfare of the child, taking into account the respective resources and social and moral
situations of the contending parties.

‘The Court believes that [Joycelyn] had no reason to take the child with her.  Moreover, per Sheriff returns, she is
not with him at Caminawit, San Jose, Occidental Mindoro.

‘WHEREFORE, pendente lite, the Court hereby awards custody of the minor, Crisanto Rafaello P. Gualberto X to
his father, Crisanto Rafaelito G. Gualberto V.’

“x x x [O]n April 16, 2002, the hearing of [Joycelyn’s] motion to lift the award of custody pendente lite of the child
to [Crisanto] was set but the former did not allegedly present any evidence to support her motion.  However, on May
17, 2002, [the] Judge allegedly issued the assailed Order reversing her Order of April 3, 2002 and this time awarding
custody of the child to [Joycelyn].  [T]he entire text of the Order [is] herein reproduced, to wit:

‘Submitted is [Crisanto’s] Motion to Resolve Prayer for Custody Pendente Lite and [Joycelyn’s] Motion to Dismiss
and the respective Oppositions thereto.

‘[Joycelyn], in her Motion to Dismiss, makes issue of the fact that the person referred to in the caption of the
Petition is one JOCELYN Pablo Gualberto and not Joycelyn Pablo Gualberto.  [Joycelyn] knows she is the person
referred to in the Complaint.  As a matter of fact, the body of the Complaint states her name correct[ly].  The law is
intended to facilitate and promote the administration of justice, not to hinder or delay it.  Litigation should be
practicable and convenient.  The error in the name of Joycelyn does not involve public policy and has not prejudiced
[her].

‘This case was filed on March 12, 2002.  Several attempts were made to serve summons on [Joycelyn] as shown by
the Sheriff’s returns.  It appears that on the 4thattempt on March 21, 2002, both Ma. Daisy and x x x Ronnie Nolasco,
[Joycelyn’s mother and stepfather, respectively,] read the contents of the documents presented after which they
returned the same.

‘The Court believes that on that day, summons was duly served and this Court acquired jurisdiction over [Joycelyn].

‘The filing of [Joycelyn’s annulment] case on March 26, 2002 was an after thought, perforce the Motion to
[D]ismiss should be denied.

‘The child subject of this Petition, Crisanto Rafaello P. Gualberto is barely four years old.  Under Article 213 of the
Family Code, he shall not be separated from his mother unless the Court finds compelling reasons to order
otherwise.  The Court finds the reason stated by [Crisanto] not [to] be compelling reasons.  The father should
however be entitled to spend time with the minor.  These do not appear compelling reasons to deprive him of the
company of his child.

‘When [Joycelyn] appeared before this Court, she stated that she has no objection to the father visiting the child
even everyday provided it is in Mindoro.

‘The Court hereby grants the mother, [Joycelyn], the custody of Crisanto Rafaello P. Gualberto, with [the] right of
[Crisanto] to have the child with him every other weekend.

‘WHEREFORE:

1.            The [M]otion to Dismiss is hereby DENIED;

2.            Custody pendente lite is hereby given to the mother Joycelyn Pablo Gualberto with
the right of the father, x x x [Crisanto], to have him every other week-end.
3.            Parties are admonished not to use any other agencies of the government like the
CIDG to interfere in this case and to harass the parties.’”[6]
In a Petition for Certiorari[7] before the CA, Crisanto charged the Regional Trial Court (Branch 260) of
Parañaque City with grave abuse of discretion for issuing its aforequoted May 17, 2002 Order.  He alleged that this
Order superseded, without any factual or legal basis, the still valid and subsisting April 3, 2002 Order awarding him
custody pendente lite of his minor son; and that it violated Section 14 of Article VII of the 1987 Constitution.

Ruling of the Court of Appeals

Partly in Crisanto’s favor, the CA ruled that grave abuse of discretion had been committed by the trial court in
reversing the latter court’s previous Order dated April 3, 2002, by issuing the assailed May 17, 2002 Order.  The
appellate court explained that the only incident to resolve was Joycelyn’s Motion to Dismiss, not the issuance of the
earlier Order.  According to the CA, the prior Order awarding provisional custody to the father should prevail, not
only because it was issued after a hearing, but also because the trial court did not resolve the correct incident in the
later Order.
Nonetheless, the CA stressed that the trial court judge was not precluded from considering and resolving
Joycelyn’s Motion to lift the award of custody pendente lite to Crisanto, as that Motion had yet to be properly
considered and ruled upon.  However, it directed that the child be turned over to him until the issue was resolved.
Hence, these Petitions.[8]

Issues

In GR No. 154994, Petitioner Joycelyn submits these issues for our consideration:

“1.       Whether or not the Respondent Court of Appeals, when it awarded the custody of the child to the father,
violated Art. 213 of the Family Code, which mandates that ‘no child under seven years of age shall be separated
from the mother, unless the court finds compelling reasons to order otherwise.’

“2.       Is it Article 213 or Article 211 which applies in this case involving four-year old Rafaello?”[9]

On the other hand, Crisanto raises the following issues:

“A.       Did Respondent Court commit grave abuse of discretion amounting to or in excess of jurisdiction when, in
its August 30, 2002 Decision, it ordered respondent court/Judge ‘to consider, hear and resolve the motion to lift
award of custody pendente lite of the child to petitioner and x x x denied the motion for reconsideration thereof in its
November 27, 2002 Resolution, considering that: (1) there is no such motion ever, then or now pending, with the
court a quo; (2) the November 27, 2002 Resolution is unconstitutional; and (3) the April 3, 2002 Order of
respondent Judge, the validity of which has been upheld in the August 30, 2002 Decision of the respondent Court,
has become final and executory; and

“B.      Ought not the ancillary remedies [o]f habeas corpus, because the whereabouts, physical and mental condition
of the illegally detained Minor Rafaello is now unknown to petitioner and preliminary mandatory injunction with
urgent prayer for immediate issuance of preliminary [injunction], petitioner having a clear and settled right to
custody of Minor Rafaello which has been violated and still is being continuously violated by [petitioner Joycelyn],
be granted by this Honorable Court?”[10]

Being interrelated, the procedural challenges and the substantive issues in the two Petitions will be addressed
jointly.

The Court’s Ruling

There is merit in the Petition in GR No. 154994, but not in GR No. 156254.

Preliminary Issue:
The Alleged Prematurity
of the Petition in GR No. 154994

Before going into the merits of the present controversy, the Court shall first dispose of a threshold issue.  In
GR No. 154994, therein Respondent Crisanto contends that the Petition for Review was filed beyond the deadline
(October 24, 2002) allowed by the Rules of Court and by this Court.  He claims that Registry Bill No. 88 shows that
the Petition was sent by speed mail, only on November 4, 2002.  Furthermore, he assails the Petition for its
prematurity, since his Motion for Partial Reconsideration of the August 30, 2002 CA Decision was still pending
before the appellate court.  Thus, he argues that the Supreme Court has no jurisdiction over Joycelyn’s Petition.

Timeliness of the Petition

The manner of filing and service Joycelyn’s Petition by mail is governed by Sections 3 and 7 of Rule 13 of the
Rules of Court, which we quote:

“SEC. 3.  Manner of filing. – The filing of pleadings, appearances, motions, notices, orders, judgments and all other
papers shall be made by presenting the original copies thereof, plainly indicated as such personally to the clerk of
court or by sending them by registered mail. xxx In the second case, the date of mailing of motions, pleadings and
other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt,
shall be considered as the date of their filing, payment, or deposit in court.  The envelope shall be attached to the
records of the case.

“x x x                                        x x x                                  x x x
“SEC. 7.  Service by mail. – Service by registered mail shall be made by depositing the copy in the office, in a
sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if
known, with postage fully pre-paid, and with instructions to the postmaster to return the mail to the sender after ten
(10) days if undelivered.  If no registry service is available in the locality of either the sender of the addressee,
service may be done by ordinary mail. (Italics supplied)

The records disclose that Joycelyn received the CA’s August 30, 2002 Decision on September 9, 2002.  On
September 17, she filed before this Court a Motion for a 30-day extension of time to file a petition for review on
certiorari.  This Motion was granted,[11] and the deadline was thus extended until October 24, 2002.
A further perusal of the records reveals that copies of the Petition were sent to this Court and to the parties by
registered mail[12] at the Biñan, Laguna Post Office on October 24, 2002.  This is the date clearly stamped on the face
of the envelope[13] and attested to in the Affidavit of Service[14] accompanying the Petition.  Petitioner Joycelyn
explained that the filing and the service had been made by registered mail due to the “volume of delivery
assignments and the lack of a regular messenger.”[15]
The Petition is, therefore, considered to have been filed on October 24, 2002, its mailing date as shown by the
post office stamp on the envelope.  The last sentence of Section 3 of Rule 13 of the Rules provides that the date of
filing may be shown either by the post office stamp on the envelope orby the registry receipt.  Proof of its filing, on
the other hand, is shown by the existence of the petition in the record, pursuant to Section 12 of Rule 13.[16]
The postmaster satisfactorily clarifies that Registry Bill No. 88, which shows the date November 2, 2002,
merely discloses when the mail matters received by the Biñan Post Office on October 24, 2002, were dispatched or
sent to the Central Mail Exchange for distribution to their final destinations. [17] The Registry Bill does not reflect the
actual mailing date.  Instead, it is the postal Registration Book[18] that shows the list of mail matters that have been
registered for mailing on a particular day, along with the names of the senders and the addressees.  That book shows
that Registry Receipt Nos. 2832-A and 2832-B, pertaining to the mailed matters for the Supreme Court, were issued
on October 24, 2002.

Prematurity of the Petition

As to the alleged prematurity of the Petition of Joycelyn, Crisanto points out that his Urgent Motion for Partial
Reconsideration[19] was still awaiting resolution by the CA when she filed her Petition before this Court on October
24, 2002.  The CA ruled on the Motion only on November 27, 2002. 
The records show, however, that the Motion of Crisanto was mailed only on September 12, 2002.  Thus, on
September 17, 2002, when Joycelyn filed her Motion for Extension of Time to file her Petition for Review, she
might have still been unaware that he had moved for a partial reconsideration of the August 20, 2002 CA Decision. 
Nevertheless, upon being notified of the filing of his Motion, she should have manifested that fact to this Court.
With the CA’s final denial of Crisanto’s Motion for Reconsideration, Joycelyn’s lapse may be excused in the
interest of resolving the substantive issues raised by the parties.

First Issue:
Grave Abuse of Discretion

In GR No. 156254, Crisanto submits that the CA gravely abused its discretion when it ordered the trial court
judge to “consider, hear and resolve the motion to lift the award of custody pendente lite” without any proper motion
by Joycelyn and after the April 3, 2002 Order of the trial court had become final and executory.  The CA is also
charged with grave abuse of discretion for denying his Motion for Partial Reconsideration without stating the
reasons for the denial, allegedly in contravention of Section 1 of Rule 36 of the Rules of Court.
The Order to Hear the Motion
to Lift the Award of Custody
Pendente Lite Proper

To begin with, grave abuse of discretion is committed when an act is 1) done contrary to the Constitution, the
law or jurisprudence;[20] or 2) executed “whimsically or arbitrarily” in a manner “so patent and so gross as to amount
to an evasion of a positive duty, or to a virtual refusal to perform the duty enjoined.” [21] What constitutes grave abuse
of discretion is such capricious and arbitrary exercise of judgment as that which is equivalent, in the eyes of the law,
to lack of jurisdiction.[22]
On the basis of these criteria, we hold that the CA did not commit grave abuse of discretion.
First, there can be no question that a court of competent jurisdiction is vested with the authority to resolve even
unassigned issues.  It can do so when such a step is indispensable or necessary to a just resolution of issues raised in
a particular pleading or when the unassigned issues are inextricably linked or germane to those that have been
pleaded.[23] This truism applies with more force when the relief granted has been specifically prayed for, as in this
case.
Explicit in the Motion to Dismiss[24] filed by Joycelyn before the RTC is her ancillary prayer for the court to lift
and set aside its April 3, 2002 Order awarding to Crisanto custody pendente lite of their minor son.  Indeed, the
necessary consequence of granting her Motion to Dismiss would have been the setting aside of the Order awarding
Crisanto provisional custody of the child.  Besides, even if the Motion to Dismiss was denied -- as indeed it was --
the trial court, in its discretion and if warranted, could still have granted the ancillary prayer as an alternative relief.
Parenthetically, Joycelyn’s Motion need not have been verified because of the provisional nature of the April
3, 2002 Order. Under Rule 38[25] of the Rules of Court, verification is required only when relief is sought from a
final and executory Order.  Accordingly, the court may set aside its own orders even without a proper motion,
whenever such action is warranted by the Rules and to prevent a miscarriage of justice.[26]

Denial of the Motion for

Reconsideration Proper

Second, the requirement in Section 1 of Rule 36 (for judges to state clearly and distinctly the reasons for their
dispositions) refers only to decisions and final orders on the merits, not to those resolving incidental matters.[27] The
provision reads:

“SECTION 1.  Rendition of judgments and final orders. – A judgment or final order determining the merits of the
case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the
law on which it is based, signed by him, and filed with the clerk of court.” (Italics supplied)

Here, the declaration of the nullity of marriage is the subject of the main case, in which the issue of
custody pendente lite is an incident.  That custody and support of common children may be ruled upon by the court
while the action is pending is provided in Article 49 of the Family Code, which we quote :

“Art. 49. During the pendency of the action[28] and in the absence of adequate provisions in a written agreement
between the spouses, the Court shall provide for the support of the spouses and the custody and support of their
common children. x x x.”

Clearly then, the requirement cited by Crisanto is inapplicable.  In any event, in its questioned Resolution, the
CA clearly stated that it “could not find any cogent reason” to reconsider and set aside the assailed portion of its
August 30, 2002 Decision.
The April 3, 2002 Order Not
Final and Executory

Third, the award of temporary custody, as the term implies, is provisional and subject to change as
circumstances may warrant.  In this connection, there is no need for a lengthy discussion of the alleged finality of
the April 3, 2002 RTC Order granting Crisanto temporary custody of his son.  For that matter, even the award of
child custody after a judgment on a marriage annulment is not permanent; it may be reexamined and adjusted if and
when the parent who was given custody becomes unfit.[29]

Second Issue:
Custody of a Minor Child

When love is lost between spouses and the marriage inevitably results in separation, the bitterest tussle is often
over the custody of their children.  The Court is now tasked to settle the opposing claims of the parents for
custody pendente lite of their child who is less than seven years old. [30] On the one hand, the mother insists that,
based on Article 213 of the Family Code, her minor child cannot be separated from her.  On the other hand, the
father argues that she is “unfit” to take care of their son; hence, for “compelling reasons,” he must be awarded
custody of the child.
Article 213 of the Family Code[31] provides:

“ART. 213.  In case of separation of the parents, parental authority shall be exercised by the parent designated by the
court.  The court shall take into account all relevant considerations, especially the choice of the child over seven
years of age, unless the parent chosen is unfit.

No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to
order otherwise.”

This Court has held that when the parents are separated, legally or otherwise, the foregoing provision governs
the custody of their child.[32]Article 213 takes its bearing from Article 363 of the Civil Code, which reads:

“Art. 363.  In all questions on the care, custody, education and property of children, the latter’s welfare shall be
paramount.  No mother shall be separated from her child under seven years of age, unless the court finds
compelling reasons for such measure.”(Italics supplied)

The general rule that children under seven years of age shall not be separated from their mother finds its raison
d’etre in the basic need of minor children for their mother’s loving care.[33] In explaining the rationale for Article 363
of the Civil Code, the Code Commission stressed thus:

“The general rule is recommended in order to avoid a tragedy where a mother has seen her baby torn away from
her.  No man can sound the deep sorrows of a mother who is deprived of her child of tender age. The exception
allowed by the rule has to be for ‘compelling reasons’ for the good of the child:  those cases must indeed be rare, if
the mother’s heart is not to be unduly hurt.  If she has erred, as in cases of adultery, the penalty of imprisonment and
the (relative) divorce decree will ordinarily be sufficient punishment for her.  Moreover, her moral dereliction will
not have any effect upon the baby who is as yet unable to understand the situation.” (Report of the Code
Commission, p. 12)

A similar provision is embodied in Article 8 of the Child and Youth Welfare Code (Presidential Decree No.
603).[34] Article 17 of the same Code is even more explicit in providing for the child’s custody under various
circumstances, specifically in case the parents are separated.  It clearly mandates that “no child under five years of
age shall be separated from his mother, unless the court finds compelling reasons to do so.”  The provision is
reproduced in its entirety as follows:

“Art. 17.  Joint Parental Authority. – The father and the mother shall exercise jointly just and reasonable parental
authority and responsibility over their legitimate or adopted children.  In case of disagreement, the father’s decision
shall prevail unless there is a judicial order to the contrary.

“In case of the absence or death of either parent, the present or surviving parent shall continue to exercise parental
authority over such children, unless in case of the surviving parent’s remarriage, the court for justifiable reasons,
appoints another person as guardian.

“In case of separation of his parents, no child under five years of age shall be separated from his mother, unless the
court finds compelling reasons to do so.” (Italics supplied)

The above mandates reverberate in Articles 211, 212 and 213 of the Family Code.  It is unmistakable from the
language of these provisions that Article 211[35] was derived from the first sentence of the aforequoted Article 17;
Article 212,[36] from the second sentence; and Article 213,[37] save for a few additions, from the third sentence.  It
should be noted that the Family Code has reverted to the Civil Code provision mandating that a child
below seven years should not be separated from the mother.[38]

Mandatory Character
of Article 213 of the Family Code

In Lacson v. San Jose-Lacson,[39] the Court held that the use of “shall” in Article 363 of the Civil Code and the
observations made by the Code Commission underscore the mandatory character of the word. [40] Holding in that case
that it was a mistake to deprive the mother of custody of her two children, both then below the age of seven, the
Court stressed:

“[Article 363] prohibits in no uncertain terms the separation of a mother and her child below seven years, unless
such a separation is grounded upon compelling reasons as determined by a court.”[41]

In like manner, the word “shall” in Article 213 of the Family Code and Section 6[42] of Rule 99 of the Rules of
Court has been held to connote a mandatory character. [43] Article 213 and Rule 99 similarly contemplate a situation
in which the parents of the minor are married to each other, but are separated by virtue of either a decree of legal
separation or a de facto separation.[44] In the present case, the parents are living separately as a matter of fact.

The Best Interest of the Child

a Primary Consideration

The Convention on the Rights of the Child provides that “[i]n all actions concerning children, whether
undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative
bodies, the best interests of the child shall be a primary consideration.”[45]
The principle of “best interest of the child” pervades Philippine cases involving adoption, guardianship,
support, personal status, minors in conflict with the law, and child custody.  In these cases, it has long been
recognized that in choosing the parent to whom custody is given, the welfare of the minors should always be the
paramount consideration.[46] Courts are mandated to take into account all relevant circumstances that would have a
bearing on the children’s well-being and development.  Aside from the material resources and the moral and social
situations of each parent, other factors may also be considered to ascertain which one has the capability to attend to
the physical, educational, social and moral welfare of the children. [47] Among these factors are the previous care and
devotion shown by each of the parents; their religious background, moral uprightness, home environment and time
availability; as well as the children’s emotional and educational needs

Tender-Age
Presumption

As pointed out earlier, there is express statutory recognition that, as a general rule, a mother is to be preferred
in awarding custody of children under the age of seven.  The caveat in Article 213 of the Family Code cannot be
ignored, except when the court finds cause to order otherwise.[48]
The so-called “tender-age presumption” under Article 213 of the Family Code may be overcome only
by compelling evidence of the mother’s unfitness.  The mother has been declared unsuitable to have custody of her
children in one or more of the following instances: neglect, abandonment, unemployment, immorality, habitual
drunkenness, drug addiction, maltreatment of the child, insanity or affliction with a communicable disease.[49]
Here, Crisanto cites immorality due to alleged lesbian relations as the compelling reason to deprive Joycelyn of
custody.  It has indeed been held that under certain circumstances, the mother’s immoral conduct may constitute a
compelling reason to deprive her of custody.[50]
But sexual preference or moral laxity alone does not prove parental neglect or incompetence.  Not even the
fact that a mother is a prostitute or has been unfaithful to her husband would render her unfit to have custody of her
minor child.[51] To deprive the wife of custody, the husband must clearly establish that her moral lapses have had an
adverse effect on the welfare of the child or have distracted the offending spouse from exercising proper parental
care.[52]
To this effect did the Court rule in Unson III v. Navarro,[53] wherein the mother was openly living with her
brother-in-law, the child’s uncle.  Under that circumstance, the Court deemed it in the nine-year-old child’s best
interest to free her “from the obviously unwholesome, not to say immoral influence, that the situation in which the
mother ha[d] placed herself might create in [the child’s] moral and social outlook.”[54]
In Espiritu v. CA,[55] the Court took into account psychological and case study reports on the child, whose
feelings of insecurity and anxiety had been traced to strong conflicts with the mother.  To the psychologist the child
revealed, among other things, that the latter was disturbed upon seeing “her mother hugging and kissing a ‘bad’ man
who lived in their house and worked for her father.”  The Court held that the “illicit or immoral activities of the
mother had already caused the child emotional disturbances, personality conflicts, and exposure to conflicting moral
values x x x.”
Based on the above jurisprudence, it is therefore not enough for Crisanto to show merely that Joycelyn was a
lesbian.  He must also demonstrate that she carried on her purported relationship with a person of the same sex in the
presence of their son or under circumstances not conducive to the child’s proper moral development.  Such a fact
has not been shown here.  There is no evidence that the son was exposed to the mother’s alleged sexual proclivities
or that his proper moral and psychological development suffered as a result.
Moreover, it is worthy to note that the trial court judge, Helen Bautista-Ricafort, ruled in her May 17, 2002
Order that she had found the “reason stated by [Crisanto] not to be compelling”[56] as to suffice as a ground for
separating the child from his mother.  The judge made this conclusion after personally observing the two of them,
both in the courtroom and in her chambers on April 16, 2002, and after a chance to talk to the boy and to observe
him firsthand.  This assessment, based on her unique opportunity to witness the child’s behavior in the presence of
each parent, should carry more weight than a mere reliance on the records.  All told, no compelling reason has been
adduced to wrench the child from the mother’s custody.

No Grant of Habeas Corpus

and Preliminary Injunction
 As we have ruled that Joycelyn has the right to keep her minor son in her custody, the writ of habeas corpus
and the preliminary mandatory injunction prayed for by Crisanto have no leg to stand on.  A writ of habeas corpus
may be issued only when the “rightful custody of any person is withheld from the person entitled thereto,” [57] a
situation that does not apply here.
On the other hand, the ancillary remedy of preliminary mandatory injunction cannot be granted, because
Crisanto’s right to custody has not been proven to be “clear and unmistakable.” [58] Unlike an ordinary preliminary
injunction, the writ of preliminary mandatory injunction is more cautiously regarded, since the latter requires the
performance of a particular act that tends to go beyond the maintenance of the status quo.[59] Besides, such an
injunction would serve no purpose, now that the case has been decided on its merits.[60]
WHEREFORE, the Petition in GR No. 154994 is GRANTED.  The assailed Decision of the Court of Appeals is
hereby REVERSED and the May 17, 2002 Regional Trial Court Order REINSTATED.  The Petition in GR No. 156254
is DISMISSED.  Costs against Petitioner Crisanto Rafaelito Gualberto V.
SO ORDERED.

MARIE ANTONETTE ABIGAIL C. SALIENTES, ORLANDO B. SALIENTES, and ROSARIO C.

SALIENTES,Petitioners,
vs.
LORAN S.D. ABANILLA, HONORABLE JUDGE PEDRO SABUNDAYO, JR., REGIONAL TRIAL
COURT, BRANCH 203, MUNTINLUPA CITY, Respondents

DECISION

QUISUMBING, J.:

The instant petition assails the Decision 1dated November 10, 2003 of the Court of Appeals in CA-G.R. SP No.
75680, which dismissed the petition for certiorari against the orders of the Regional Trial Court in Special
Proceedings No. 03-004. Likewise assailed is the Court of Appeals’ Resolution 2dated March 19, 2004 denying
reconsideration.

The facts of the case are as follows:

Private respondent Loran S.D. Abanilla and petitioner Marie Antonette Abigail C. Salientes are the parents of the
minor Lorenzo Emmanuel S. Abanilla. They lived with Marie Antonette’s parents, petitioners Orlando B. Salientes
and Rosario C. Salientes. Due to in-laws problems, private respondent suggested to his wife that they transfer to
their own house, but Marie Antonette refused. So, he alone left the house of the Salientes. Thereafter, he was
prevented from seeing his son.

Later, Loran S.D. Abanilla in his personal capacity and as the representative of his son, filed a Petition for Habeas
Corpus and Custody, 3 docketed as Special Proceedings No. 03-004 before the Regional Trial Court of Muntinlupa
City. On January 23, 2003, the trial court issued the following order:

Upon verified Petition for a Writ of Habeas Corpus by Petitioners, the Respondents Marie Antonette Abigail C.
Salientes, Orlando B. Salientes and Rosario C. Salientes are hereby directed to produce and bring before this Court
the body of minor Lorenzo Emmanuel Salientes Abanilla on January 31, 2003 at 1:00 o’clock in the afternoon and
to show cause why the said child should not be discharged from restraint.

Let this Writ be served by the Sheriff or any authorized representative of this Court, who is directed to immediately
make a return.

SO ORDERED. 4
Petitioners moved for reconsideration which the court denied.

Consequently, petitioners filed a petition for certiorari with the Court of Appeals, but the same was dismissed on
November 10, 2003. The appellate court affirmed the February 24, 2003 Order of the trial court holding that its
January 23, 2003 Order did not award the custody of the 2-year-old child to any one but was simply the standard
order issued for the production of restrained persons. The appellate court held that the trial court was still about to
conduct a full inquiry, in a summary proceeding, on the cause of the minor’s detention and the matter of his custody.
The Court of Appeals ruled thus:

WHEREFORE, the petition is hereby DISMISSED for lack of merit.

SO ORDERED. 5

Petitioners moved for reconsideration, which was denied on March 19, 2004.

Hence, petitioners interposed this appeal by certiorari anchored on the following grounds:

1. The Court of Appeals erred in not pronouncing the respondent judge gravely abused his discretion, amounting to
lack or in excess of jurisdiction in issuing an order for the petitioner-mother to first show cause why her own three-
year old child in her custody should not be discharged from a so-called "restraint" despite no evidence at all of
restraint and no evidence of compelling reasons of maternal unfitness to deprive the petitioner-mother of her minor
son of tender years. The assailed orders, resolutions and decisions of the lower court and the Court of Appeals are
clearly void;

2. The Court of Appeals erred in not pronouncing that the respondent judge gravely abused his discretion in issuing
a writ of habeas corpus which clearly is not warranted considering that there is no unlawful restraint by the mother
and considering further that the law presumes the fitness of the mother, thereby negating any notion of such mother
illegally restraining or confining her very own son of tender years. The petition is not even sufficient in substance to
warrant the writ. The assailed orders are clearly void.

3. Contrary to the Court of Appeals decision, the "Sombong vs. CA" case supports rather than negates the position of
the petitioners.

4. Contrary to the Court of Appeals decision, summary proceeding does violence to the tender-years-rule

5. The Court of Appeals failed to consider that the private respondent failed to present prima facie proof of any
compelling reason of the unfitness of the petitioner-mother;

6. The Court of Appeals failed to see that the New Rules on Custody SUFFICES AS REMEDY. 6

Plainly put, the issue is: Did the Court of Appeals err when it dismissed the petition for certiorari against the trial
court’s orders dated January 23, 2003 and February 24, 2003?

Petitioners contend that the order is contrary to Article 213 7 of the Family Code, which provides that no child under
seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise.
They maintain that herein respondent Loran had the burden of showing any compelling reason but failed to present
even a prima facie proof thereof.

Petitioners posit that even assuming that there were compelling reasons, the proper remedy for private respondent
was simply an action for custody, but not habeas corpus. Petitioners assert that habeas corpus is unavailable against
the mother who, under the law, has the right of custody of the minor. They insist there was no illegal or involuntary
restraint of the minor by his own mother. There was no need for the mother to show cause and explain the custody
of her very own child.
Private respondent counters that petitioners’ argument based on Article 213 of the Family Code applies only to the
second part of his petition regarding the custody of his son. It does not address the first part, which pertains to his
right as the father to see his son. He asserts that the writ of habeas corpus is available against any person who
restrains the 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, they would have done so on the dates specified in the January 23, 2003 and the February 24, 2003 orders of
the trial court.

Private respondent maintains that, under the law, he and petitioner Marie Antonette have shared custody and
parental authority over their son. He alleges that at times when petitioner Marie Antonette is out of the country as
required of her job as an international flight stewardess, he, the father, should have custody of their son and not the
maternal grandparents.

As correctly pointed out by the Court of Appeals, the assailed January 23, 2003 Order of the trial court did not grant
custody of the minor to any of the parties but merely directed petitioners to produce the minor in court and explain
why they are restraining his liberty. The assailed order was an interlocutory order precedent to the trial court’s full
inquiry into the issue of custody, which was still pending before it.

Under Rule 41, Section 1 8 of the Rules of Court, an interlocutory order is not appealable but the aggrieved party
may file an appropriate special action under Rule 65. The aggrieved party must show that the court gravely abused
its discretion in issuing the interlocutory order. In the present case, it is incumbent upon petitioners to show that the
trial court gravely abused its discretion in issuing the order.

Habeas corpus may be resorted to in cases where rightful custody is withheld from a person entitled thereto. 9Under
Article 211 10 of the Family Code, respondent Loran and petitioner Marie Antonette have joint parental authority
over their son and consequently joint custody. Further, although the couple is separated de facto, the issue of
custody has yet to be adjudicated by the court. In the absence of a judicial grant of custody to one parent, both
parents are still entitled to the custody of their child. In the present case, private respondent’s cause of action is the
deprivation of his right to see his child as alleged in his petition. 11 Hence, the remedy of habeas corpus is available
to him.

In a petition for habeas corpus, the child’s welfare is the supreme consideration. The Child and Youth Welfare
Code12 unequivocally provides that in all questions regarding the care and custody, among others, of the child, his
welfare shall be the paramount consideration. 13

Again, it bears stressing that the order did not grant custody of the minor to any of the parties but merely directed
petitioners to produce the minor in court and explain why private respondent is prevented from seeing his child. This
is in line with the directive in Section 9 14 of A.M. 03-04-04-SC 15 that within fifteen days after the filing of the
answer or the expiration of the period to file answer, the court shall issue an order requiring the respondent (herein
petitioners) to present the minor before the court. This was exactly what the court did.

Moreover, Article 213 of the Family Code deals with the judicial adjudication of custody and serves as a guideline
for the proper award of custody by the court. Petitioners can raise it as a counter argument for private 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.

In sum, the trial court did not err in issuing the orders dated January 23, 2003 and February 24, 2003. Hence, the
Court of Appeals properly dismissed the petition for certiorari against the said orders of the trial court.

WHEREFORE, the petition is DENIED. The Decisiondated November 10, 2003 and the Resolutiondated March
19, 2004 of the Court of Appeals in CA-G.R. SP No. 75680 are AFFIRMED. Costs against petitioners.

SO ORDERED.
 GAMBOA-HIRSCH VS COURT OF APPEALS

VELASCO, JR., J.:
 
          This is a petition for certiorari [1] under Rule 65 which seeks to set aside the June 8, 2006 Decision [2] of the
Court of Appeals (CA) in CA-G.R. SP No. 94329, which granted private respondent Franklin Harvey Hirsch
(Franklin) joint custody with petitioner Agnes Gamboa-Hirsch (Agnes) of their minor daughter Simone Noelle
Hirsch (Simone); and the August 3, 2006 CA Resolution[3] denying petitioner’s Motion for Reconsideration for lack
of merit. Petitioner also prays for the issuance of a temporary restraining order/injunction preventing the execution
and implementation of the assailed June 8, 2006 CA Decision.
         
          Franklin and Agnes were married on December 23, 2000 in the City of Bacolod, and established their
conjugal dwelling in Diniwid,Boracay Island, Malay, Aklan. On December 21, 2002, a child was born to them and
was named Simone. In 2005, the couple started to have marital problems as Agnes wanted to stay in Makati City,
while Franklin insisted that they stay in Boracay Island. On March 23, 2006, Agnes came to their conjugal home in
Boracay, and asked for money and for Franklin’s permission for her to bring their daughter to Makati City for a brief
vacation. Franklin readily agreed, but soon thereafter discovered that neither Agnes nor their daughter Simone
would be coming back to Boracay.
 
          Franklin then filed a petition for habeas corpus before the CA for Agnes to produce Simone in court. On May
19, 2006, the CA issued a Resolution which ordered that a writ of habeas corpus be issued ordering that Simone be
brought before said court on May 26, 2006. After a series of hearings and presentation of evidence, the CA, on June
8, 2006, promulgated the assailed Decision granting Franklin joint custody with Agnes of their minor child. Agnes
filed a Motion for Reconsideration of this Decision, which was denied in the CA’s August 3, 2006Resolution for
lack of merit.
 
          Petitioner now comes before this Court praying that we set aside the June 8, 2006 Decision and August 3,
2006 Resolution of the CA, and that we issue a temporary restraining order/injunction on the execution and
implementation of the assailed rulings of the CA based on the following grounds:
(A)
The Court of Appeals seriously erred and acted with grave abuse of discretion amounting to lack
or excess of jurisdiction when it ruled upon, granted, and decided the matter of custody x x x
during the May 26, 2006 hearing conducted on the petition for writ of habeas corpus in relation to
and with custody of a minor under A.M. No. 03-03-04-SC, C.A.-GR SP. No. 94329, as no
reception of evidence to support said decision was had thereon, and the honorable court merely
based its decision on mere conjectures and presumptions.
 
(B)
 The Court of Appeals seriously erred and acted with grave abuse of discretion amounting to lack
or excess of jurisdiction when it denied the motion for reconsideration filed by [petitioner Agnes]
and only made addendums thereon appertaining to the custody aspect in its Decision that the same
is deemed necessary for the protection of the interest of the child and a mere temporary
arrangement while the case involving the herein parties are pending before the Regional Trial
Court x x x quite contrary to its pronouncements during the May 26, 2006 hearing when the matter
of custody was insisted upon by [respondent Franklin].
(C)
The Court of Appeals seriously erred and acted with grave abuse of discretion amounting to lack
or excess of jurisdiction when it granted joint custody in utter disregard of the provisions of the
Family Code, as to minors seven (7) years of age and below, in relation to the jurisprudence and
pronouncements laid down by the Honorable Supreme Court on the matter of the said provision.[4]

 
Acting on the petition, this Court issued its October 2, 2006 Resolution denying petitioner’s prayer for the
issuance of a temporary restraining order. Petitioner then filed a Motion for Reconsideration of this Resolution, and
on April 11, 2007, this Court granted petitioner’s Motion for Reconsideration, issued a temporary restraining order,
and awarded the sole custody of the minor, Simone, to petitioner.
 
          This petition has merit.
 
          The CA committed grave abuse of discretion when it granted joint custody of the minor child to both parents.
 
The Convention on the Rights of the Child provides that “in all actions concerning children, whether
undertaken by public or private social welfare institutions, courts of law, administrative authorities or
legislative bodies, the best interests of the child shall be a primary consideration (emphasis supplied).”[5] The
Child and Youth Welfare Code, in the same way, unequivocally provides that in all questions regarding the care
and custody, among others, of the child, his/her welfare shall be the paramount consideration.[6]
 
The so-called “tender-age presumption” under Article 213 of the Family Code may be overcome only
by compelling evidence of the mother’s unfitness.  The mother is declared unsuitable to have custody of her
children in one or more of the following instances: neglect, abandonment, unemployment, immorality, habitual
drunkenness, drug addiction, maltreatment of the child, insanity, or affliction with a communicable disease.[7]  Here,
the mother was not shown to be unsuitable or grossly incapable of caring for her minor child. All told, no
compelling reason has been adduced to wrench the child from the mother’s custody.
 
WHEREFORE, premises considered, the petition is GIVEN DUE COURSE. The June 8, 2006 Decision
and August 3, 2006Resolution of the CA are hereby SET ASIDE. Sole custody over Simone Noelle Hirsch
is hereby AWARDED to the mother, petitioner Agnes Gamboa-Hirsch.
 
 SO ORDERED.

HERALD BLACK DACASIN, Petitioner, 

vs.
SHARON DEL MUNDO DACASIN, Respondent.

DECISION

CARPIO, J.:

The Case

For review1 is a dismissal2 of a suit to enforce a post-foreign divorce child custody agreement for lack of
jurisdiction.

The Facts

Petitioner Herald Dacasin (petitioner), American, and respondent Sharon Del Mundo Dacasin (respondent), Filipino,
were married in Manila in April 1994. They have one daughter, Stephanie, born on 21 September 1995. In June
1999, respondent sought and obtained from the Circuit Court, 19th Judicial Circuit, Lake County, Illinois (Illinois
court) a divorce decree against petitioner.3 In its ruling, the Illinois court dissolved the marriage of petitioner and
respondent, awarded to respondent sole custody of Stephanie and retained jurisdiction over the case for enforcement
purposes.

On 28 January 2002, petitioner and respondent executed in Manila a contract (Agreement4 ) for the joint custody of
Stephanie. The parties chose Philippine courts as exclusive forum to adjudicate disputes arising from the Agreement.
Respondent undertook to obtain from the Illinois court an order "relinquishing" jurisdiction to Philippine courts.

In 2004, petitioner sued respondent in the Regional Trial Court of Makati City, Branch 60 (trial court) to enforce the
Agreement. Petitioner alleged that in violation of the Agreement, respondent exercised sole custody over Stephanie.

Respondent sought the dismissal of the complaint for, among others, lack of jurisdiction because of the Illinois
court’s retention of jurisdiction to enforce the divorce decree.

The Ruling of the Trial Court

In its Order dated 1 March 2005, the trial court sustained respondent’s motion and dismissed the case for lack of
jurisdiction. The trial court held that: (1) it is precluded from taking cognizance over the suit considering the Illinois
court’s retention of jurisdiction to enforce its divorce decree, including its order awarding sole custody of Stephanie
to respondent; (2) the divorce decree is binding on petitioner following the "nationality rule" prevailing in this
jurisdiction;5 and (3) the Agreement is void for contravening Article 2035, paragraph 5 of the Civil
Code6 prohibiting compromise agreements on jurisdiction.7

Petitioner sought reconsideration, raising the new argument that the divorce decree obtained by respondent is void.
Thus, the divorce decree is no bar to the trial court’s exercise of jurisdiction over the case.

In its Order dated 23 June 2005, the trial court denied reconsideration, holding that unlike in the case of respondent,
the divorce decree is binding on petitioner under the laws of his nationality.

Hence, this petition.

Petitioner submits the following alternative theories for the validity of the Agreement to justify its enforcement by
the trial court: (1) the Agreement novated the valid divorce decree, modifying the terms of child custody from sole
(maternal) to joint;8 or (2) the Agreement is independent of the divorce decree obtained by respondent.

The Issue

The question is whether the trial court has jurisdiction to take cognizance of petitioner’s suit and enforce the
Agreement on the joint custody of the parties’ child.

The Ruling of the Court

The trial court has jurisdiction to entertain petitioner’s suit but not to enforce the Agreement which is void.
However, factual and equity considerations militate against the dismissal of petitioner’s suit and call for the remand
of the case to settle the question of Stephanie’s custody.

Regional Trial Courts Vested With Jurisdiction

to Enforce Contracts

Subject matter jurisdiction is conferred by law. At the time petitioner filed his suit in the trial court, statutory law
vests on Regional Trial Courts exclusive original jurisdiction over civil actions incapable of pecuniary
estimation.9 An action for specific performance, such as petitioner’s suit to enforce the Agreement on joint child
custody, belongs to this species of actions.10 Thus, jurisdiction-wise, petitioner went to the right court.

Indeed, the trial court’s refusal to entertain petitioner’s suit was grounded not on its lack of power to do so but on its
thinking that the Illinois court’s divorce decree stripped it of jurisdiction. This conclusion is unfounded. What the
Illinois court retained was "jurisdiction x x x for the purpose of enforcing all and sundry the various provisions of
[its] Judgment for Dissolution."11 Petitioner’s suit seeks the enforcement not of the "various provisions" of the
divorce decree but of the post-divorce Agreement on joint child custody. Thus, the action lies beyond the zone of the
Illinois court’s so-called "retained jurisdiction."

Petitioner’s Suit Lacks Cause of Action

The foregoing notwithstanding, the trial court cannot enforce the Agreement which is contrary to law.

In this jurisdiction, parties to a contract are free to stipulate the terms of agreement subject to the minimum ban on
stipulations contrary to law, morals, good customs, public order, or public policy.12 Otherwise, the contract is denied
legal existence, deemed "inexistent and void from the beginning."13 For lack of relevant stipulation in the
Agreement, these and other ancillary Philippine substantive law serve as default parameters to test the validity of the
Agreement’s joint child custody stipulations.14

At the time the parties executed the Agreement on 28 January 2002, two facts are undisputed: (1) Stephanie was
under seven years old (having been born on 21 September 1995); and (2) petitioner and respondent were no longer
married under the laws of the United States because of the divorce decree. The relevant Philippine law on child
custody for spouses separated in fact or in law15 (under the second paragraph of Article 213 of the Family Code) is
also undisputed: "no child under seven years of age shall be separated from the mother x x x."16 (This statutory
awarding of sole parental custody17 to the mother is mandatory,18 grounded on sound policy consideration,19subject
only to a narrow exception not alleged to obtain here.20 ) Clearly then, the Agreement’s object to establish a post-
divorce joint custody regime between respondent and petitioner over their child under seven years old contravenes
Philippine law.

The Agreement is not only void ab initio for being contrary to law, it has also been repudiated by the mother when
she refused to allow joint custody by the father. The Agreement would be valid if the spouses have not divorced or
separated because the law provides for joint parental authority when spouses live together.21 However, upon
separation of the spouses, the mother takes sole custody under the law if the child is below seven years old and any
agreement to the contrary is void. Thus, the law suspends the joint custody regime for (1) children under seven of
(2) separated or divorced spouses. Simply put, for a child within this age bracket (and for commonsensical reasons),
the law decides for the separated or divorced parents how best to take care of the child and that is to give custody to
the separated mother. Indeed, the separated parents cannot contract away the provision in the Family Code on the
maternal custody of children below seven years anymore than they can privately agree that a mother who is
unemployed, immoral, habitually drunk, drug addict, insane or afflicted with a communicable disease will have sole
custody of a child under seven as these are reasons deemed compelling to preclude the application of the exclusive
maternal custody regime under the second paragraph of Article 213.22

It will not do to argue that the second paragraph of Article 213 of the Family Code applies only to judicial custodial
agreements based on its text that "No child under seven years of age shall be separated from the mother, unless the
court finds compelling reasons to order otherwise." To limit this provision’s enforceability to court sanctioned
agreements while placing private agreements beyond its reach is to sanction a double standard in custody regulation
of children under seven years old of separated parents. This effectively empowers separated parents, by the simple
expedient of avoiding the courts, to subvert a legislative policy vesting to the separated mother sole custody of her
children under seven years of age "to avoid a tragedy where a mother has seen her baby torn away from her."23 This
ignores the legislative basis that "[n]o man can sound the deep sorrows of a mother who is deprived of her child of
tender age."24

It could very well be that Article 213’s bias favoring one separated parent (mother) over the other (father)
encourages paternal neglect, presumes incapacity for joint parental custody, robs the parents of custodial options, or
hijacks decision-making between the separated parents.25 However, these are objections which question the law’s
wisdom not its validity or uniform enforceability. The forum to air and remedy these grievances is the legislature,
not this Court. At any rate, the rule’s seeming harshness or undesirability is tempered by ancillary agreements the
separated parents may wish to enter such as granting the father visitation and other privileges. These arrangements
are not inconsistent with the regime of sole maternal custody under the second paragraph of Article 213 which
merely grants to the mother final authority on the care and custody of the minor under seven years of age, in case of
disagreements.1avvphi1

Further, the imposed custodial regime under the second paragraph of Article 213 is limited in duration, lasting only
until the child’s seventh year. From the eighth year until the child’s emancipation, the law gives the separated
parents freedom, subject to the usual contractual limitations, to agree on custody regimes they see fit to adopt.
Lastly, even supposing that petitioner and respondent are not barred from entering into the Agreement for the joint
custody of Stephanie, respondent repudiated the Agreement by asserting sole custody over Stephanie. Respondent’s
act effectively brought the parties back to ambit of the default custodial regime in the second paragraph of Article
213 of the Family Code vesting on respondent sole custody of Stephanie.

Nor can petitioner rely on the divorce decree’s alleged invalidity - not because the Illinois court lacked jurisdiction
or that the divorce decree violated Illinois law, but because the divorce was obtained by his Filipino spouse26 - to
support the Agreement’s enforceability. The argument that foreigners in this jurisdiction are not bound by foreign
divorce decrees is hardly novel. Van Dorn v. Romillo27 settled the matter by holding that an alien spouse of a
Filipino is bound by a divorce decree obtained abroad.28 There, we dismissed the alien divorcee’s Philippine suit for
accounting of alleged post-divorce conjugal property and rejected his submission that the foreign divorce (obtained
by the Filipino spouse) is not valid in this jurisdiction in this wise:

There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The
decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue
petitioner, as her husband, in any State of the Union. What he is contending in this case is that the divorce is not
valid and binding in this jurisdiction, the same being contrary to local law and public policy.

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals
are covered by the policy against absolute divorces the same being considered contrary to our concept of public
policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines,
provided they are valid according to their national law. In this case, the divorce in Nevada released private
respondent from the marriage from the standards of American law, under which divorce dissolves the marriage.

xxxx

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no
standing to sue in the case below as petitioner’s husband entitled to exercise control over conjugal assets. As he is
bound by the Decision of his own country’s Court, which validly exercised jurisdiction over him, and whose
decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right
over the alleged conjugal property. (Emphasis supplied)

We reiterated Van Dorn in Pilapil v. Ibay-Somera29 to dismiss criminal complaints for adultery filed by the alien
divorcee (who obtained the foreign divorce decree) against his former Filipino spouse because he no longer
qualified as "offended spouse" entitled to file the complaints under Philippine procedural rules. Thus, it should be
clear by now that a foreign divorce decree carries as much validity against the alien divorcee in this jurisdiction as it
does in the jurisdiction of the alien’s nationality, irrespective of who obtained the divorce.

The Facts of the Case and Nature of Proceeding

Justify Remand

Instead of ordering the dismissal of petitioner’s suit, the logical end to its lack of cause of action, we remand the
case for the trial court to settle the question of Stephanie’s custody. Stephanie is now nearly 15 years old, thus
removing the case outside of the ambit of the mandatory maternal custody regime under Article 213 and bringing it
within coverage of the default standard on child custody proceedings – the best interest of the child.30 As the
question of custody is already before the trial court and the child’s parents, by executing the Agreement, initially
showed inclination to share custody, it is in the interest of swift and efficient rendition of justice to allow the parties
to take advantage of the court’s jurisdiction, submit evidence on the custodial arrangement best serving Stephanie’s
interest, and let the trial court render judgment. This disposition is consistent with the settled doctrine that in child
custody proceedings, equity may be invoked to serve the child’s best interest.31

WHEREFORE, we REVERSE the Orders dated 1 March 2005 and 23 June 2005 of the Regional Trial Court of
Makati City, Branch 60. The case is REMANDED for further proceedings consistent with this ruling.

SO ORDERED.

NAPOLEON D. NERI, ALICIA D. NERI-MONDEJAR, VISMINDA D. NERI-CHAMBERS, ROSA D.

NERI-MILLAN, DOUGLAS D. NERI, EUTROPIA D. ILLUT-COCKINOS AND VICTORIA D. ILLUT-
PIALA, Petitioners, 
vs.
HEIRS OF HADJI YUSOP UY AND JULPHA* IBRAHIM UY, Respondents.
 DECISION

PERLAS-BERNABE, J.:

In this Petition for Review on Certiorari1 under Rule 45 of the Rules of Court, petitioners Napoleon D. Neri
(Napoleon), Alicia D. Neri-Mondejar (Alicia), Visminda D. Neri-Chambers (Visminda), Rosa D. Neri-Millan
(Rosa), Douglas D. Neri (Douglas), Eutropia D. Illut-Cockinos (Eutropia), and Victoria D. Illut-Piala (Victoria) seek
to reverse and set aside the April 27, 2010 Decision2 and October 18, 2010 Resolution3 of the Court of Appeals (CA)
in CA-G.R. CV No. 01031-MIN which annulled the October 25, 2004 Decision4 of the Regional Trial Court (RTC)
of Panabo City, Davao del Norte and instead, entered a new one dismissing petitioners’ complaint for annulment of
sale, damages and attorney’s feesagainst herein respondents heirs of spouses Hadji Yusop Uy and Julpha Ibrahim
Uy (heirs of Uy).

The Facts

During her lifetime, Anunciacion Neri (Anunciacion) had seven children, two (2) from her first marriage with
Gonzalo Illut (Gonzalo), namely: Eutropia and Victoria, and five (5) from her second marriage with Enrique Neri
(Enrique), namely: Napoleon, Alicia, Visminda, Douglas and Rosa. Throughout the marriage of spouses Enrique
and Anunciacion, they acquired several homestead properties with a total area of 296,555 square meters located in
Samal, Davao del Norte, embraced by Original Certificate of Title (OCT) Nos. (P-7998) P-21285, (P-14608) P-
51536and P-20551 (P-8348)7issued on February 15, 1957, August 27, 1962 and July 7, 1967, respectively.

On September 21, 1977, Anunciacion died intestate. Her husband, Enrique, in his personal capacity and as natural
guardian of his minor children Rosa and Douglas, together with Napoleon, Alicia, and Vismindaexecuted an Extra-
Judicial Settlement of the Estate with Absolute Deed of Sale8 on July 7, 1979, adjudicating among themselves the
said homestead properties, and thereafter, conveying themto the late spouses Hadji Yusop Uy and Julpha Ibrahim
Uy (spouses Uy)for a consideration of P 80,000.00.

On June 11, 1996, the children of Enrique filed a complaint for annulment of saleof the said homestead properties
against spouses Uy (later substituted by their heirs)before the RTC, docketed as Civil Case No.96-28, assailing the
validity of the sale for having been sold within the prohibited period. Thecomplaint was later amended to include
Eutropia and Victoriaas additional plaintiffs for having been excluded and deprived of their legitimes as childrenof
Anunciacion from her first marriage.

In their amended answer with counterclaim, the heirs of Uy countered that the sale took place beyond the 5-year
prohibitory period from the issuance of the homestead patents. They also denied knowledge of Eutropia and
Victoria’s exclusionfrom the extrajudicial settlement and sale of the subject properties, and interposed further the
defenses of prescription and laches.

The RTC Ruling

On October 25, 2004, the RTC rendered a decision ordering, among others, the annulment of the Extra-Judicial
Settlement of the Estate with Absolute Deed of Sale. It ruled that while the sale occurred beyond the 5-year
prohibitory period, the sale is still void because Eutropia and Victoria were deprived of their hereditary rights and
that Enrique had no judicial authority to sell the shares of his minor children, Rosa and Douglas.

Consequently, it rejected the defenses of laches and prescription raised by spouses Uy, who claimed possession of
the subject properties for 17 years, holding that co-ownership rights are imprescriptible.

The CA Ruling

On appeal, the CAreversed and set aside the ruling of the RTC in its April 27, 2010 Decision and dismissed the
complaint of the petitioners. It held that, while Eutropia and Victoria had no knowledge of the extrajudicial
settlement and sale of the subject properties and as such, were not bound by it, the CA found it unconscionable to
permit the annulment of the sale considering spouses Uy’s possession thereof for 17 years, and thatEutropia and
Victoriabelatedlyfiled their actionin 1997, ormore than two years fromknowledge of their exclusion as heirs in 1994
when their stepfather died. It, however, did not preclude the excluded heirs from recovering their legitimes from
their co-heirs.

Similarly, the CA declared the extrajudicial settlement and the subsequent saleas valid and binding with respect to
Enrique and hischildren, holding that as co-owners, they have the right to dispose of their respective shares as they
consider necessary or fit.While recognizing Rosa and Douglas to be minors at that time, they were deemed to have
ratified the sale whenthey failed to question it upon reaching the age of majority.Italso found laches to have set in
because of their inaction for a long period of time.

The Issues

In this petition, petitioners imputeto the CA the following errors:

I. WHEN IT UPHELDTHE VALIDITY OF THE "EXTRA JUDICIAL SETTLEMENT OF THE ESTATE WITH
ABSOLUTE DEED OF SALE" AS FAR AS THE SHARES OF EUTROPIA AND VICTORIA WERE
CONCERNED, THEREBY DEPRIVING THEM OF THEIR INHERITANCE;

II. WHEN IT DID NOT NULLIFY OR ANNUL THE "EXTRA JUDICIAL SETTLEMENT OF THE ESTATE
WITH ABSOLUTE DEED OF SALE" WITH RESPECT TO THE SHARESOF ROSA AND DOUGLAS,
THEREBY DEPRIVING THEM OF THEIR INHERITANCE; and

III. WHEN IT FOUND THAT LACHES OR PRESCRIPTION HAS SET IN.

The Ruling of the Court

The petitionis meritorious.

It bears to stress that all the petitioners herein are indisputably legitimate children of Anunciacion from her first and
second marriages with Gonzalo and Enrique, respectively, and consequently, are entitled to inherit from her in equal
shares, pursuant to Articles 979 and 980 of the Civil Code which read:

ART. 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction
as to sex or age, and even if they should come from different marriages.

xxx

ART. 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in
equal shares.

As such, upon the death of Anunciacion on September 21, 1977, her children and Enrique acquired their respective
inheritances,9 entitling them to their pro indiviso shares in her whole estate, as follows:

Enrique 9/16 (1/2 of the conjugal assets + 1/16)

Eutropia 1/16
Victoria 1/16
Napoleon 1/16
Alicia 1/16
 Visminda 1/16
Rosa 1/16
Douglas 1/16

Hence, in the execution of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale in favor of spouses
Uy, all the heirs of Anunciacionshould have participated. Considering that Eutropia and Victoria were admittedly
excluded and that then minors Rosa and Douglas were not properly represented therein, the settlement was not valid
and binding uponthem and consequently, a total nullity.

Section 1, Rule 74 of the Rules of Court provides:

SECTION 1. Extrajudicial settlement by agreement between heirs. – x x x

The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in
the manner provided in the next succeeding section; but no extrajudicial settlement shall be binding upon any person
who has not participated therein or had no notice thereof. (Underscoring added)

The effect of excluding the heirs in the settlement of estate was further elucidated in Segura v. Segura,10 thus:

It is clear that Section 1 of Rule 74 does not apply to the partition in question which was null and void as far as the
plaintiffs were concerned. The rule covers only valid partitions. The partition in the present case was invalid because
it excluded six of the nine heirs who were entitled to equal shares in the partitioned property. Under the rule "no
extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof."
As the partition was a total nullity and did not affect the excluded heirs, it was not correct for the trial court to hold
that their right to challenge the partition had prescribed after two years from its execution…

However, while the settlement of the estate is null and void, the subsequent sale of the subject propertiesmade by
Enrique and his children, Napoleon, Alicia and Visminda, in favor of the respondents isvalid but only with respect to
their proportionate shares therein.It cannot be denied that these heirs have acquired their respective shares in the
properties of Anunciacion from the moment of her death11and that, as owners thereof, they can very well sell their
undivided share in the estate.12

With respect to Rosa and Douglas who were minors at the time of the execution of the settlement and sale, their
natural guardian and father, Enrique, represented them in the transaction. However, on the basis of the laws
prevailing at that time, Enrique was merely clothed with powers of administration and bereft of any authority to
dispose of their 2/16 shares in the estate of their mother, Anunciacion.

Articles 320 and 326 of the Civil Code, the laws in force at the time of the execution of the settlement and sale,
provide:

ART. 320. The father, or in his absence the mother, is the legal administrator of the property pertaining to the child
under parental authority. If the property is worth more than two thousand pesos, the father or mother shall give a
bond subject to the approval of the Court of First Instance.

ART. 326. When the property of the child is worth more than two thousand pesos, the father or mother shall be
considered a guardian of the child’s property, subject to the duties and obligations of guardians under the Rules of
Court.

Corollarily, Section 7, Rule 93 of the Rules of Court also provides:

SEC. 7. Parents as Guardians. – When the property of the child under parental authority is worth two thousand
pesos or less, the father or the mother, without the necessity of court appointment, shall be his legal guardian. When
the property of the child is worth more than two thousand pesos, the father or the mother shall be considered
guardian of the child’s property, with the duties and obligations of guardians under these Rules, and shall file the
petition required by Section 2 hereof. For good reasons, the court may, however, appoint another suitable persons.

Administration includes all acts for the preservation of the property and the receipt of fruits according to the natural
purpose of the thing. Any act of disposition or alienation, or any reduction in the substance of the patrimony of
child, exceeds the limits of administration.13 Thus, a father or mother, as the natural guardian of the minor under
parental authority, does not have the power to dispose or encumber the property of the latter. Such power is granted
by law only to a judicial guardian of the ward’s property and even then only with courts’ prior approval secured in
accordance with the proceedings set forth by the Rules of Court.14

Consequently, the disputed sale entered into by Enrique in behalf of his minor children without the proper judicial
authority, unless ratified by them upon reaching the age of majority,15 is unenforceable in accordance with Articles
1317 and 1403(1) of the Civil Code which provide:

ART. 1317. No one may contract in the name of another without being authorized by the latter or unless he has by
law a right to represent him.

A contract entered into in the name of another by one who has no authority or legal representation, or who has acted
beyond his powers, shall be unenforceable, unless it is ratified, expressly or impliedly, by the person on whose
behalf it has been executed, before it is revoked by the other contracting party.

ART. 1403. The following contracts are unenforceable, unless they are ratified:

(1) Those entered into the name of another person by one who has been given no authority or legal representation, or
who has acted beyond his powers;

xxx

Ratification means that one under no disability voluntarily adopts and gives sanction to some unauthorized act or
defective proceeding, which without his sanction would not be binding on him. It is this voluntary choice,
knowingly made, which amounts to a ratification of what was theretofore unauthorized, and becomes the authorized
act of the party so making the ratification.16 Once ratified, expressly or impliedly such as when the person knowingly
received benefits from it, the contract is cleansed from all its defects from the moment it was constituted,17 as it has a
retroactive effect.

Records, however, show that Rosa had ratified the extrajudicial settlement of the estate with absolute deed of sale. In
Napoleon and Rosa’s Manifestation18 before the RTC dated July 11, 1997,they stated:

"Concerning the sale of our parcel of land executed by our father, Enrique Neri concurred in and conformed to by us
and our other two sisters and brother (the other plaintiffs), in favor of Hadji Yusop Uy and his spouse Hadja Julpa
Uy on July 7, 1979, we both confirmed that the same was voluntary and freely made by all of us and therefore the
sale was absolutely valid and enforceable as far as we all plaintiffs in this case are concerned;" (Underscoring
supplied)

In their June 30, 1997 Joint-Affidavit,19 Napoleon and Rosa also alleged:

"That we are surprised that our names are included in this case since we do not have any intention to file a case
against Hadji Yusop Uy and Julpha Ibrahim Uy and their family and we respect and acknowledge the validity of the
Extra-Judicial Settlement of the Estate with Absolute Deed of Sale dated July 7, 1979;" (Underscoring supplied)
Clearly, the foregoing statements constitutedratification of the settlement of the estate and the subsequent sale, thus,
purging all the defects existing at the time of its execution and legitimizing the conveyance of Rosa’s 1/16 share in
the estate of Anunciacion to spouses Uy. The same, however, is not true with respect to Douglas for lack of evidence
showing ratification.

Considering, thus, that the extrajudicial settlement with sale is invalid and therefore, not binding on Eutropia,
Victoria and Douglas, only the shares ofEnrique, Napoleon, Alicia, Visminda and Rosa in the homestead properties
have effectivelybeen disposed in favor of spouses Uy. "A person can only sell what he owns, or is authorized to sell
and the buyer can as a consequence acquire no more than what the sellercan legally transfer."20 On this score, Article
493 of the Civil Codeis relevant, which provides:

Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may
therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal
rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to
the portion which may be allotted to him in the division upon the termination of the co-ownership.

Consequently, spouses Uy or their substituted heirs became pro indiviso co-owners of the homestead properties with
Eutropia, Victoria and Douglas, who retained title to their respective 1/16 shares. They were deemed to be holding
the 3/16 shares of Eutropia, Victoria and Douglas under an implied constructive trust for the latter’s benefit,
conformably with Article 1456 of the Civil Code which states:"if property is acquired through mistake or fraud, the
person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from
whom the property comes." As such, it is only fair, just and equitable that the amount paid for their shares
equivalent to P 5,000.0021 each or a total of P 15,000.00 be returned to spouses Uy with legal interest.

On the issue of prescription, the Court agrees with petitioners that the present action has not prescribed in so far as it
seeks to annul the extrajudicial settlement of the estate. Contrary to the ruling of the CA, the prescriptive period of 2
years provided in Section 1 Rule 74 of the Rules of

Court reckoned from the execution of the extrajudicial settlement finds no application to petitioners Eutropia,
Victoria and Douglas, who were deprived of their lawful participation in the subject estate. Besides, an "action or
defense for the declaration of the inexistence of a contract does not prescribe" in accordance with Article 1410 of the
Civil Code.

However, the action to recover property held in trust prescribes after 10 years from the time the cause of action
accrues,22 which is from the time of actual notice in case of unregistered deed.23 In this case, Eutropia, Victoria and
Douglas claimed to have knowledge of the extrajudicial settlement with sale after the death of their father, Enrique,
in 1994 which spouses Uy failed to refute. Hence, the complaint filed in 1997 was well within the prescriptive
period of 10 years.

WHEREFORE, the instant petition is GRANTED. The April 27, 2010 Decision and October 18, 2010 Resolution
of the Court of Appeals are REVERSED and SET ASIDE and a new judgment is entered:

1. Declaring the Extra-Judicial Settlement of the Estate of Anunciacion Neri NULL and VOID;

2. Declaring the Absolute Deed of Sale in favor of the late spouses Hadji Yusop Uy and Julpha Ibrahim Uy
as regards the 13/16 total shares of the late Enrique Neri, Napoleon Neri, Alicia D. Neri-Mondejar,
Visminda D. Neri-Chambers and Rosa D. Neri-Millan VALID;

3. Declaring Eutropia D. Illut-Cockinos, Victoria D. Illut-Piala and Douglas D. Neri as the LAWFUL

OWNERSof the 3/16 portions of the subject homestead properties, covered by Original Certificate of Title
Nos. (P-7998) P-2128, (P-14608) P-5153 and P-20551 (P-8348); and
 4. Ordering the estate of the late Enrique Neri, as well as Napoleon Neri, Alicia D. Neri-Mondejar,
Visminda D. Neri-Chambers and Rosa D. Neri-Millan to return to the respondents jointly and solidarily the
amount paid corresponding to the 3/16 shares of Eutropia, Victoria and Douglas in the total amount
of P 15,000.00, with legal interest at 6% per annum computed from the time of payment until finality of
this decision and 12% per annum thereafter until fully paid.

No pronouncement as to costs.

SO ORDERED.

SCHOOL OF THE HOLY SPIRIT OF QUEZON CITY and/or SR. CRISPINA A. TOLENTINO,
S.Sp.S., Petitioners, 
vs.
CORAZON P. TAGUIAM, Respondent.

DECISION

QUISUMBING, J.:

This petition assails the Decision1 dated June 7, 2004 of the Court of Appeals in CA-G.R. SP No. 81480, which
reversed the Resolution2 dated September 20, 2002 of the National Labor Relations Commission (NLRC) in NLRC
NCR CA No. 031627-02. The NLRC had affirmed the Decision3 dated March 26, 2002 of the Labor Arbiter
dismissing respondent’s complaint for illegal dismissal. This petition likewise assails the Resolution4 dated
September 30, 2004 of the Court of Appeals denying petitioners’ motion for reconsideration.

The antecedent facts are as follows:

Respondent Corazon P. Taguiam was the Class Adviser of Grade 5-Esmeralda of the petitioner, School of the Holy
Spirit of Quezon City. On March 10, 2000, the class president, wrote a letter5 to the grade school principal
requesting permission to hold a year-end celebration at the school grounds. The principal authorized the activity and
allowed the pupils to use the swimming pool. In this connection, respondent distributed the parent’s/guardian’s
permit forms to the pupils.

Respondent admitted that Chiara Mae Federico’s permit form6 was unsigned. Nevertheless, she concluded that
Chiara Mae was allowed by her mother to join the activity since her mother personally brought her to the school
with her packed lunch and swimsuit.

Before the activity started, respondent warned the pupils who did not know how to swim to avoid the deeper area.
However, while the pupils were swimming, two of them sneaked out. Respondent went after them to verify where
they were going.

Unfortunately, while respondent was away, Chiara Mae drowned. When respondent returned, the maintenance man
was already administering cardiopulmonary resuscitation on Chiara Mae. She was still alive when respondent rushed
her to the General Malvar Hospital where she was pronounced dead on arrival.

On May 23, 2000, petitioners issued a Notice of Administrative Charge7 to respondent for alleged gross negligence
and required her to submit her written explanation. Thereafter, petitioners conducted a clarificatory hearing which
respondent attended. Respondent also submitted her Affidavit of Explanation.8

On July 31, 2000, petitioners dismissed respondent on the ground of gross negligence resulting to loss of trust and
confidence.9 Meanwhile, Chiara Mae’s parents filed a P7 Million damage suit against petitioners and respondent,
among others. They also filed against respondent a criminal complaint for reckless imprudence resulting in
homicide.

On July 25, 2001, respondent in turn filed a complaint10 against the school and/or Sr. Crispina Tolentino for illegal
dismissal, with a prayer for reinstatement with full backwages and other money claims, damages and attorney’s fees.

In dismissing the complaint, the Labor Arbiter declared that respondent was validly terminated for gross neglect of
duty. He opined that Chiara Mae drowned because respondent had left the pupils without any adult supervision. He
also noted that the absence of adequate facilities should have alerted respondent before allowing the pupils to use the
swimming pool. The Labor Arbiter further concluded that although respondent’s negligence was not habitual, the
same warranted her dismissal since death resulted therefrom.

Respondent appealed to the NLRC which, however, affirmed the dismissal of the complaint.

Aggrieved, respondent instituted a petition for certiorari before the Court of Appeals, which ruled in her favor. The
appellate court observed that there was insufficient proof that respondent’s negligence was both gross and habitual.
The Court of Appeals disposed, thus:

WHEREFORE, … the Court hereby GRANTS the petition. The assailed September 20, 2002 Resolution of the
National Labor Relations Commission entitled Corazon Taguiam vs. School of the Holy Spirit and/or Sister Crispina
Tolentino[,] NLRC NCR Case No. 00-07-03877-01[,] NLRC NCR CA No. 031627-02 is
hereby REVERSED and SET ASIDE, and a new one is hereby ENTERED directing the private respondent the
School of the Holy Spirit to:

(1) Pay the petitioner full backwages, plus all other benefits, bonuses and general increases to which she
would have been normally entitled, had she not been dismissed and had she not been forced to stop
working computed up to the finality of this decision;

(2) Pay the petitioner separation pay equivalent to one (1) month for every year of service in addition to full
backwages;

(3) Pay the petitioner an amount equivalent to 10% of the judgment award as attorney’s fees;

(4) Pay the cost of this suit.

SO ORDERED.11

In this petition, petitioners contend that the Court of Appeals erred in:

… REVERSING AND SETTING ASIDE THE DECISION AND RESOLUTION OF THE NATIONAL LABOR
RELATIONS COMMISSION AFFIRMING THE DECISION OF THE LABOR ARBITER DISMISSING THE
COMPLAINT FOR LACK OF MERIT.12

Simply stated, the sole issue presented for our resolution is whether respondent’s dismissal on the ground of gross
negligence resulting to loss of trust and confidence was valid.

The issue of whether a party is negligent is a question of fact. As a rule, the Supreme Court is not a trier of facts and
this applies with greater force in labor cases.13 However, where the issue is shrouded by a conflict of factual
perception, we are constrained to review the factual findings of the Court of Appeals. In this case, the findings of
facts of the appellate court contradict those of the Labor Arbiter and the NLRC.14
Under Article 28215 of the Labor Code, gross and habitual neglect of duties is a valid ground for an employer to
terminate an employee. Gross negligence implies a want or absence of or a failure to exercise slight care or
diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any
effort to avoid them.16 Habitual neglect implies repeated failure to perform one’s duties for a period of time,
depending upon the circumstances.17

Our perusal of the records leads us to conclude that respondent had been grossly negligent. First, it is undisputed that
Chiara Mae’s permit form was unsigned. Yet, respondent allowed her to join the activity because she assumed that
Chiara Mae’s mother has allowed her to join it by personally bringing her to the school with her packed lunch and
swimsuit.

The purpose of a permit form is precisely to ensure that the parents have allowed their child to join the school
activity involved. Respondent cannot simply ignore this by resorting to assumptions. Respondent admitted that she
was around when Chiara Mae and her mother arrived. She could have requested the mother to sign the permit form
before she left the school or at least called her up to obtain her conformity.

Second, it was respondent’s responsibility as Class Adviser to supervise her class in all activities sanctioned by the
school.18 Thus, she should have coordinated with the school to ensure that proper safeguards, such as adequate first
aid and sufficient adult personnel, were present during their activity. She should have been mindful of the fact that
with the number of pupils involved, it would be impossible for her by herself alone to keep an eye on each one of
them.

As it turned out, since respondent was the only adult present, majority of the pupils were left unsupervised when she
followed the two pupils who sneaked out. In the light of the odds involved, respondent should have considered that
those who sneaked out could not have left the school premises since there were guards manning the gates. The
guards would not have allowed them to go out in their swimsuits and without any adult accompanying them. But
those who stayed at the pool were put at greater risk, when she left them unattended by an adult.1avvphi1

Notably, respondent’s negligence, although gross, was not habitual. In view of the considerable resultant damage,
however, we are in agreement that the cause is sufficient to dismiss respondent. This is not the first time that we
have departed from the requirements laid down by the law that neglect of duties must be both gross and habitual. In
Philippine Airlines, Inc. v. NLRC,19 we ruled that Philippine Airlines (PAL) cannot be legally compelled to continue
with the employment of a person admittedly guilty of gross negligence in the performance of his duties although it
was his first offense. In that case, we noted that a mere delay on PAL’s flight schedule due to aircraft damage entails
problems like hotel accommodations for its passengers, re-booking, the possibility of law suits, and payment of
special landing fees not to mention the soaring costs of replacing aircraft parts.20 In another case, Fuentes v.
National Labor Relations Commission,21 we held that it would be unfair to compel Philippine Banking Corporation
to continue employing its bank teller. In that case, we observed that although the teller’s infraction was not habitual,
a substantial amount of money was lost. The deposit slip had already been validated prior to its loss and the amount
reflected thereon is already considered as current liabilities in the bank’s balance sheet.22 Indeed, the sufficiency of
the evidence as well as the resultant damage to the employer should be considered in the dismissal of the employee.
In this case, the damage went as far as claiming the life of a child.

As a result of gross negligence in the present case, petitioners lost its trust and confidence in respondent. Loss of
trust and confidence to be a valid ground for dismissal must be based on a willful breach of trust and founded on
clearly established facts. A breach is willful if it is done intentionally, knowingly and purposely, without justifiable
excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently.23 Otherwise stated, it
must rest on substantial grounds and not on the employer’s arbitrariness, whims, caprices or suspicion; otherwise,
the employee would eternally remain at the mercy of the employer. It should be genuine and not simulated; nor
should it appear as a mere afterthought to justify earlier action taken in bad faith or a subterfuge for causes which are
improper, illegal or unjustified. It has never been intended to afford an occasion for abuse because of its subjective
nature. There must, therefore, be an actual breach of duty committed by the employee which must be established by
substantial evidence.24
As a teacher who stands in loco parentis to her pupils, respondent should have made sure that the children were
protected from all harm while in her company.25 Respondent should have known that leaving the pupils in the
swimming pool area all by themselves may result in an accident. A simple reminder "not to go to the deepest part of
the pool"26 was insufficient to cast away all the serious dangers that the situation presented to the children, especially
when respondent knew that Chiara Mae cannot swim.27 Dismally, respondent created an unsafe situation which
exposed the lives of all the pupils concerned to real danger. This is a clear violation not only of the trust and
confidence reposed on her by the parents of the pupils but of the school itself.

Finally, we note that based on the criminal complaint filed by Chiara Mae’s parents, the Assistant City Prosecutor
found probable cause to indict respondent for the crime of reckless imprudence resulting in homicide. The Assistant
City Prosecutor held that respondent "should have foreseen the danger lurking in the waters." By leaving her pupils
in the swimming pool, respondent displayed an "inexcusable lack of foresight and precaution."28 While this finding
is not controlling for purposes of the instant case, this only supports our conclusion that respondent has indeed been
grossly negligent.

All told, there being a clear showing that respondent was culpable for gross negligence resulting to loss of trust and
confidence, her dismissal was valid and legal. It was error for the Court of Appeals to reverse and set aside the
resolution of the NLRC.

WHEREFORE, the petition is GRANTED. The assailed Decision dated June 7, 2004 of the Court of Appeals in CA-
G.R. SP No. 81480 is SET ASIDE. The Resolution dated September 20, 2002 of the National Labor Relations
Commission in NLRC NCR CA No. 031627-02 is REINSTATED. No pronouncement as to costs.

SO ORDERED.