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Pablo-Gualberto v. Gualberto, GR No. 154994, 28 June 2005
Pablo-Gualberto v. Gualberto, GR No. 154994, 28 June 2005
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G.R. No. 154994. June 28, 2005.
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* THIRD DIVISION.
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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, 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 at the Biñan, Laguna Post Office on
October 24, 2002. This is the date clearly stamped on the face of
the envelope and attested to in the Affidavit of Service
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.” The Petition is, therefore, considered to have been
filed on October 24, 2002, its mailing date as shown by the post
office stamp on the envelope. The last sentence of Section 3 of
Rule 13 of the Rules provides that the date of filing may be shown
either by the post office stamp on the envelope or by the registry
receipt. Proof of its filing, on the other hand, is shown by the
existence of the petition in the record, pursuant to Section 12 of
Rule 13.
Same; Same; Same; Same; The Registry Bill does not reflect
the actual mailing date—it is the postal Registration Book 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.—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. The Registry
Bill does not reflect the actual mailing date. Instead, it is the
postal Registration Book 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.
Same; Certiorari; Words and Phrases; Grave abuse of
discretion is committed when an act is 1) done contrary to the
Constitution, the law or jurisprudence, 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.”—To begin with, grave abuse of discretion is
committed when an act is 1) done contrary to the Constitution,
the law or jurisprudence; or 2)
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PANGANIBAN, J.:
The Case
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2
sion of the Court of Appeals (CA) in CA-G.R. SP No. 70878.
The assailed Decision disposed as follows:
“We could not find any cogent reason why the [last part of the
dispositive portion of our Decision of August 30, 2002]
5
should be
deleted, hence, subject motion is hereby DENIED.”
The Facts
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2 Id., pp. 80-86. Twelfth Division. Penned by Justice Edgardo F. Sundiam and
concurred in by Justices Portia Aliño-Hormachuelos (Division chair) and Elvi John
S. Asuncion (member).
3 Assailed CA Decision, p. 7; G.R. No. 154994; Rollo, p. 86.
4 G.R. No. 156254 Rollo, pp. 3-32.
5 Assailed CA Resolution, p. 1; G.R. No. 156254; Rollo, p. 34.
458
‘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
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460
‘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
6
parties.’ ”
7
7
In a Petition for Certiorari 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.
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6 CA Decision, pp. 1-4; G.R. No. 154994; Rollo, pp. 80-83. Citations
omitted.
7 G.R. No. 154994 Rollo, pp. 88-118; G.R. No. 156254; Rollo, pp. 73-103.
461
Issues
8 The two cases were consolidated on October 13, 2004. They were deemed
submitted for decision on June 14, 2004, upon the Court’s receipt of Joycelyn
Gualberto’s Memorandum in G.R. No. 156254, signed by Atty. German A. Gineta.
Crisanto Gualberto V’s Memorandum, signed by Atty. Reynaldo B. Aralar, was
filed on June 4, 2004.
In G.R. No. 154994, Joycelyn’s Memorandum, also signed by Atty. Gineta, was
received by the Court on May 8, 2003. Crisanto’s Memorandum and Reply
Memorandum, also signed by Atty. Aralar, were filed on May 5, 2003 and May 16,
2003, respectively.
462
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 Article9 211 which applies in this case
involving four-year old Rafaello?”
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463
Preliminary Issue:
The Alleged Prematurity
of the Petition in G.R. No. 154994
Before going into the merits of the present controversy, the
Court shall first dispose of a threshold issue. In G.R. 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.
464
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“SEC. 12. Proof of filing.—The filing of a pleading or paper shall be proved by its
existence in the record of the case. If it is not in the record, but it is claimed to
have been filed personally, the filing shall be proved by the written or stamped
acknowledgment of its filing by the clerk of court on a copy of the same; if filed by
registered mail, by the registry receipt and by the affidavit of the person who did
the mailing, containing a full statement of the date and place of depositing in the
mail in the post office in a sealed envelope addressed to the court, with postage
fully prepaid, and with instructions to the postmaster to return the mail to the
sender after ten (10) days if not delivered.” (Italics supplied)
466
466 SUPREME COURT REPORTS ANNOTATED
Pablo-Gualberto vs. Gualberto V
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467
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20 Republic v. COCOFED, 423 Phil. 735, 774; 372 SCRA 462, 493,
December 14, 2001.
21 Baylon v. Office of the Ombudsman, 423 Phil. 705, 720; 372 SCRA
437, 449, December 14, 2001; Benito v. Commission on Elections, 349
SCRA 705, 713-714, January 19, 2001; Defensor-Santiago v. Guingona,
Jr., 359 Phil. 276, 304; 298 SCRA 756, 786, November 18, 1998; and
Philippine Airlines, Inc. v. Confesor, 231 SCRA 41, 53, March 10, 1994.
22 Vda. de Bacaling v. Laguna, 54 SCRA 243, 251, December 18, 1973.
23 Ludo & Luym Corp. v. Court of Appeals, 351 SCRA 35, 40, February
1, 2001; Logronio v. Talaseo, 370 Phil. 907, 910 & 917; 312 SCRA 52, 60,
August 6, 1999 (citing Hernandez v. Andal, 78 Phil. 196, 209-210, March
29, 1947); Sesbreño v. Central Board of Assessment Appeals, 337 Phil. 89,
100; 270 SCRA 360, 370-371, March 24, 1997.
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truism applies with more force when the relief granted has
been specifically prayed for, as in this case.
24
Explicit in the Motion to Dismiss filed by Joycelyn
befor e 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
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nature of the April 3,
2002 Order. Under Rule 38 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
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24 G.R. No. 154994 Rollo, pp. 232-236. Among others, Joycelyn prayed
that “the Order of this Honorable Court dated April 3, 2002, awarding
custody of minor Crisanto Rafaello P. Gualberto X to [the father] be lifted
and set aside and [a] new one issued maintaining the status quo.”
25 §§1 and 3 of Rule 38 of the Rules of Court pertinently provides:
469
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470
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
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lite of their child who is less than seven years
old. 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.
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29 Unson III v. Navarro, 101 SCRA 183, 189, November 17, 1980 (cited
in Espiritu v. Court of Appeals, 312 Phil. 431, 440; 242 SCRA 362, 369,
March 15, 1995).
30 Crisanto Rafaello X was born on September 11, 1998. Exhibit “C”,
Certificate of Birth, Records of G.R. 154994, p. 11.
471
31
Article 213 of the Family Code provides:
This Court has held that when the parents are separated,
legally or otherwise, 32the foregoing provision governs the
custody of their child. Article 213 takes its bearing from
Article 363 of the Civil Code, which reads:
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472
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“Art. 8. Child’s welfare paramount.—In all questions regarding the care, custody,
education and property of the child, his welfare shall be the paramount
consideration.”
“Art. 211. The father and the mother shall jointly exercise parental authority over
the persons of their common chil
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36
first sentence of the aforequoted Article 17;
37
Article 212,
from the second sentence; and Article 213, 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
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seven years should not be
separated from the mother.
Mandatory Character
of Article 213 of the Family Code
39
In Lacson v. San Jose-Lacson, 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
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dren. In case of disagreement, the father’s decision shall prevail, unless there is a
judicial order to the contrary.
“Children shall always observe respect and reverence towards their parents and
are obliged to obey them as long as the children are under parental authority.”
“Art. 212. In case of absence or death of either parent, the parent present shall
continue exercising parental authority. The remarriage of the surviving parent
shall not affect the parental authority over the children, unless the court appoints
another person to be the guardian of the person or property of the children.”
37 The Article is worded as follows:
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40
character of the word. 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:
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40 The Court in this case emphasized that under ordinary parlance and
in its ordinary signification, the term “shall” is a word of command; one
that is generally imperative or mandatory; and that which “operates to
impose a duty which may be enforced, particularly if public policy is in
favor of its meaning or when public interest is involved. x x x.”
41 p. 895; p. 848, per Castro, J.
42 “SEC. 6. Proceedings as to child whose parents are separated. Appeal.
—When husband and wife are divorced or living separately and apart
from each other, and the question as to the care, custody, and control of a
child or children of their marriage is brought before a Court of First
Instance by petition or as an incidence to any other proceeding, the court,
upon hearing the testimony as may be pertinent, shall award the care,
custody, and control of each such child as will be for its best interest,
permitting the child to choose which parent it prefers to live with if it be
over ten years of age, unless the parent so chosen be unfit to take charge
of the child by reason of moral depravity, habitual drunkenness,
incapacity, or poverty. If, upon such hearing, it appears that both parents
are improper persons to have the care, custody, and control of the child,
the court may either designate the paternal or maternal grandparents of
the child, or his oldest brother or sister, or some reputable and discreet
person to take charge of such child, or commit it to any suitable asylum,
children’s home, or benevolent society. The court may in conformity with
the provisions of the Civil Code order either or both parents to support or
help support said child, irrespective of who may be its custodian, and may
make any order that is just and reasonable permitting the parent who is
deprived of its care and custody to visit the child or have temporary
custody thereof. Either
475
43
been held to connote a mandatory character. 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 of44 either a decree of legal separation or
a de facto separation. In the present case, the parents are
living separately as a matter of fact.
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476
Tender-Age
Presumption
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477
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56 Order dated May 17, 2002, p. 2; G.R. No. 154994; Rollo, p. 120.
479
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held from the person entitled thereto,” 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
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has not been proven to be “clear
and unmistakable.” Unlike an ordinary preliminary
injunction, the writ of preliminary mandatory injunction is
more cautiously regarded, since the latter requires the
performance of a particular act59 that tends to go beyond the
maintenance of the status quo. Besides, such an injunction
would serve no purpose,60
now that the case has been
decided on its merits.
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58 As held in Pelejo v. Court of Appeals, 117 SCRA 665, 668, October 18,
1982, the issuance of a writ of preliminary mandatory injunction is
justified only when the following are shown: 1) the complainant has a
clear legal right; 2) that right has been violated and the invasion is
material and substantial; and 3) there is an urgent and permanent
necessity for the writ to prevent serious damage. See also Spouses Crystal
v. Cebu International School, 356 SCRA 296, 305, April 4, 2001; Heirs of
Asuncion v. Gervacio, Jr., 363 Phil. 666, 674; 304 SCRA 322, 330, March 9,
1999; Suico Industrial Corporation v. Court of Appeals, 361 Phil. 160, 169-
170; 301 SCRA 212, 220, January 20, 1999 (citing Arcega v. Court of
Appeals, 341 Phil. 166, 171; 275 SCRA 176, 180, July 7, 1997).
59 Spouses Crystal v. Cebu International School, Ibid.; Prosperity Credit
Resources, Inc. v. Court of Appeals, 361 Phil. 30, 37; 301 SCRA 52, 59,
January 15, 1999 (citing Manila Electric Railroad and Light Company v.
Del Rosario, 22 Phil. 433, 437, March 29, 1912 and Bautista v. Barcelona,
100 Phil. 1078, 1081, March 29, 1957).
60 Under Section 1 of Rule 58 of the Rules of Court, preliminary
injunction is defined as “an order granted at any stage of an action
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