G.R. No.
184528               April 25, 2012 finding on the (respondent) who refused to see and talk
NILO OROPESA, Petitioner, 
vs.
CIRILO OROPESA, Respondent.
DECISION
LEONARDO-DE CASTRO, J.:
This is a petition for review on certiorari under Rule 45 of
the 1997 Rules of Civil Procedure of the Decision1 dated
February 29, 2008, as well as the Resolution2 dated
September 16, 2008, both rendered by the Court of
Appeals in CA-G.R. CV No. 88449, entitled "NILO
OROPESA vs. CIRILO OROPESA." The Court of
Appeals’ issuances affirmed the Order3 dated September
27, 2006 and the Order4 dated November 14, 2006
issued by the Regional Trial Court (RTC) of Parañaque
City, Branch 260 in SP. Proc. Case No. 04-0016, which
dismissed petitioner Nilo Oropesa’s petition for
guardianship over the properties of his father,
respondent Cirilo Oropesa (a widower), and denied
petitioner’s motion for reconsideration thereof,
respectively.
The facts of this case, as summed in the assailed
Decision, follow:
On January 23, 2004, the (petitioner) filed with the
Regional Trial Court of Parañaque City, a petition for him
and a certain Ms. Louie Ginez to be appointed as
guardians over the property of his father, the
(respondent) Cirilo Oropesa. The case was docketed as
SP Proc. No. 04-0016 and raffled off to Branch 260.
In the said petition, it is alleged among others that the
(respondent) has been afflicted with several maladies
and has been sickly for over ten (10) years already
having suffered a stroke on April 1, 2003 and June 1,
2003, that his judgment and memory [were] impaired
and such has been evident after his hospitalization; that
even before his stroke, the (respondent) was observed
to have had lapses in memory and judgment, showing
signs of failure to manage his property properly; that due
to his age and medical condition, he cannot, without
outside aid, manage his property wisely, and has
become an easy prey for deceit and exploitation by
people around him, particularly Ms. Ma. Luisa Agamata,
his girlfriend.
In an Order dated January 29, 2004, the presiding judge
of the court a quo set the case for hearing, and directed
the court social worker to conduct a social case study
and submit a report thereon.
Pursuant to the abovementioned order, the Court Social
Worker conducted her social case study, interviewing the
(petitioner) and his witnesses. The Court Social Worker
subsequently submitted her report but without any
to the social worker.
On July 6, 2004, the (respondent) filed his Opposition to
the petition for guardianship. On August 3, 2004, the
(respondent) filed his Supplemental Opposition.
Thereafter, the (petitioner) presented his evidence which
consists of his testimony, and that of his sister Gianina
Oropesa Bennett, and the (respondent’s) former nurse,
Ms. Alma Altaya.
After presenting evidence, the (petitioner) filed a
manifestation dated May 29, 2006 resting his case. The
(petitioner) failed to file his written formal offer of
evidence.
Thus, the (respondent) filed his "Omnibus Motion (1) to
Declare the petitioner to have waived the presentation of
his Offer of Exhibits and the presentation of his Evidence
Closed since they were not formally offered; (2) To
Expunge the Documents of the Petitioner from the
Record; and (3) To Grant leave to the Oppositor to File
Demurrer to Evidence.
In an Order dated July 14, 2006, the court a quo granted
the (respondent’s) Omnibus Motion. Thereafter, the
(respondent) then filed his Demurrer to Evidence dated
July 23, 2006.5 (Citations omitted.)
The trial court granted respondent’s demurrer to
evidence in an Order dated September 27, 2006. The
dispositive portion of which reads:
WHEREFORE, considering that the petitioner has failed
to provide sufficient evidence to establish that Gen. Cirilo
O. Oropesa is incompetent to run his personal affairs
and to administer his properties, Oppositor’s Demurrer to
Evidence is GRANTED, and the case is DISMISSED.6 
Petitioner moved for reconsideration but this was denied
by the trial court in an Order dated November 14, 2006,
the dispositive portion of which states:
WHEREFORE, considering that the Court record shows
that petitioner-movant has failed to provide sufficient
documentary and testimonial evidence to establish that
Gen. Cirilo Oropesa is incompetent to run his personal
affairs and to administer his properties, the Court hereby
affirms its earlier Order dated 27 September 2006.
Accordingly, petitioner’s Motion for Reconsideration is
DENIED for lack of merit.7 
Unperturbed, petitioner elevated the case to the Court of
Appeals but his appeal was dismissed through the now
assailed Decision dated February 29, 2008, the
dispositive portion of which reads:
WHEREFORE, premises considered the instant appeal
is DISMISSED. The assailed orders of the court a quo
dated September 27, 2006 and November 14, 2006 are
AFFIRMED.8  mind, and other similar causes, cannot, without outside
A motion for reconsideration was filed by petitioner but
this was denied by the Court of Appeals in the similarly
assailed Resolution dated September 16, 2008. Hence,
the instant petition was filed.
Petitioner submits the following question for
consideration by this Court:
WHETHER RESPONDENT IS CONSIDERED AN
"INCOMPETENT" PERSON AS DEFINED UNDER
SECTION 2, RULE 92 OF THE RULES OF COURT
WHO SHOULD BE PLACED UNDER GUARDIANSHIP9  guardianship, petitioner raises in his Memorandum13 the
After considering the evidence and pleadings on record,
we find the petition to be without merit.
Petitioner comes before the Court arguing that the
assailed rulings of the Court of Appeals should be set
aside as it allegedly committed grave and reversible
error when it affirmed the erroneous decision of the trial
court which purportedly disregarded the overwhelming
evidence presented by him showing respondent’s
incompetence.
In Francisco v. Court of Appeals,10 we laid out the nature
and purpose of guardianship in the following wise:
A guardianship is a trust relation of the most sacred
character, in which one person, called a "guardian" acts
for another called the "ward" whom the law regards as
incapable of managing his own affairs. A guardianship is
designed to further the ward’s well-being, not that of the
guardian. It is intended to preserve the ward’s property,
as well as to render any assistance that the ward may
personally require. It has been stated that while custody
involves immediate care and control, guardianship
indicates not only those responsibilities, but those of one
in loco parentis as well.11 
In a guardianship proceeding, a court may appoint a
qualified guardian if the prospective ward is proven to be
a minor or an incompetent.
A reading of Section 2, Rule 92 of the Rules of Court
tells us that persons who, though of sound mind but by
reason of age, disease, weak mind or other similar
causes, are incapable of taking care of themselves and
their property without outside aid are considered as
incompetents who may properly be placed under
guardianship. The full text of the said provision reads:
Sec. 2. Meaning of the word "incompetent." – Under this
rule, the word "incompetent" includes persons suffering
the penalty of civil interdiction or who are hospitalized
lepers, prodigals, deaf and dumb who are unable to read
and write, those who are of unsound mind, even though
they have lucid intervals, and persons not being of
unsound mind, but by reason of age, disease, weak
aid, take care of themselves and manage their property,
becoming thereby an easy prey for deceit and
exploitation.
We have held in the past that a "finding that a person is
incompetent should be anchored on clear, positive and
definite evidence."12 We consider that evidentiary
standard unchanged and, thus, must be applied in the
case at bar.
In support of his contention that respondent is
incompetent and, therefore, should be placed in
following factual matters:
a. Respondent has been afflicted with several
maladies and has been sickly for over ten (10)
years already;
b. During the time that respondent was
hospitalized at the St. Luke’s Medical Center
after his stroke, he purportedly requested one of
his former colleagues who was visiting him to file
a loan application with the Armed Forces of the
Philippines Savings and Loan Association, Inc.
(AFPSLAI) for payment of his hospital bills,
when, as far as his children knew, he had
substantial amounts of money in various banks
sufficient to cover his medical expenses;
c. Respondent’s residence allegedly has been
left dilapidated due to lack of care and
management;
d. The realty taxes for respondent’s various
properties remain unpaid and therefore
petitioner and his sister were supposedly
compelled to pay the necessary taxes;
e. Respondent allegedly instructed petitioner to
sell his Nissan Exalta car for the reason that the
former would be purchasing another vehicle, but
when the car had been sold, respondent did not
procure another vehicle and refused to account
for the money earned from the sale of the old
car;
f. Respondent withdrew at least $75,000.00 from
a joint account under his name and his
daughter’s without the latter’s knowledge or
consent;
g. There was purportedly one occasion where
respondent took a kitchen knife to stab himself
upon the "orders" of his girlfriend during one of
their fights;
 h. Respondent continuously allows his girlfriend
to ransack his house of groceries and furniture,
despite protests from his children.14  their co-owned properties, which do not in any way relate
Respondent denied the allegations made by petitioner
and cited petitioner’s lack of material evidence to support
his claims. According to respondent, petitioner did not
present any relevant documentary or testimonial
evidence that would attest to the veracity of his assertion
that respondent is incompetent largely due to his alleged
deteriorating medical and mental condition. In fact,
respondent points out that the only medical document
presented by petitioner proves that he is indeed
competent to run his personal affairs and administer his
properties. Portions of the said document, entitled
"Report of Neuropsychological Screening,"15 were quoted
by respondent in his Memorandum16 to illustrate that said
report in fact favored respondent’s claim of competence,
to wit:
General Oropesa spoke fluently in English and Filipino,
he enjoyed and participated meaningfully in
conversations and could be quite elaborate in his
responses on many of the test items. He spoke in a clear
voice and his articulation was generally comprehensible.
x x x.
xxxx
General Oropesa performed in the average range on
most of the domains that were tested. He was able to
correctly perform mental calculations and keep track of
number sequences on a task of attention. He did BEST
in visuo-constructional tasks where he had to copy
geometrical designs using tiles. Likewise, he was able to
render and read the correct time on the Clock Drawing
Test. x x x.
xxxx
x x x Reasoning abilities were generally intact as he was
able to suggest effective solutions to problem situations.
x x x.17  in memory, reasoning and orientation. It is the
With the failure of petitioner to formally offer his
documentary evidence, his proof of his father’s
incompetence consisted purely of testimonies given by
himself and his sister (who were claiming interest in their
father’s real and personal properties) and their father’s
former caregiver (who admitted to be acting under their
direction). These testimonies, which did not include any
expert medical testimony, were insufficient to convince
the trial court of petitioner’s cause of action and instead
lead it to grant the demurrer to evidence that was filed by
respondent.
Even if we were to overlook petitioner’s procedural lapse
in failing to make a formal offer of evidence, his
documentary proof were comprised mainly of certificates
of title over real properties registered in his, his father’s
and his sister’s names as co-owners, tax declarations,
and receipts showing payment of real estate taxes on
to his father’s alleged incapacity to make decisions for
himself. The only medical document on record is the
aforementioned "Report of Neuropsychological
Screening" which was attached to the petition for
guardianship but was never identified by any witness nor
offered as evidence. In any event, the said report, as
mentioned earlier, was ambivalent at best, for although
the report had negative findings regarding memory
lapses on the part of respondent, it also contained
findings that supported the view that respondent on the
average was indeed competent.
In an analogous guardianship case wherein the
soundness of mind of the proposed ward was at issue,
we had the occasion to rule that "where the sanity of a
person is at issue, expert opinion is not necessary [and
that] the observations of the trial judge coupled with
evidence establishing the person’s state of mental sanity
will suffice."18 
Thus, it is significant that in its Order dated November
14, 2006 which denied petitioner’s motion for
reconsideration on the trial court’s unfavorable
September 27, 2006 ruling, the trial court highlighted the
fatal role that petitioner’s own documentary evidence
played in disproving its case and, likewise, the trial court
made known its own observation of respondent’s
physical and mental state, to wit:
The Court noted the absence of any testimony of a
medical expert which states that Gen. Cirilo O. Oropesa
does not have the mental, emotional, and physical
capacity to manage his own affairs. On the contrary,
Oppositor’s evidence includes a Neuropsychological
Screening Report which states that Gen. Oropesa, (1)
performs on the average range in most of the domains
that were tested; (2) is capable of mental calculations;
and (3) can provide solutions to problem situations. The
Report concludes that Gen. Oropesa possesses intact
cognitive functioning, except for mildly impaired abilities
observation of the Court that oppositor is still sharp,
alert and able.19 (Citation omitted; emphasis supplied.)
It is axiomatic that, as a general rule, "only questions of
law may be raised in a petition for review on certiorari
because the Court is not a trier of facts."20 We only take
cognizance of questions of fact in certain exceptional
circumstances;21 however, we find them to be absent in
the instant case. It is also long settled that "factual
findings of the trial court, when affirmed by the Court of
Appeals, will not be disturbed by this Court. As a rule,
such findings by the lower courts are entitled to great
weight and respect, and are deemed final and conclusive
on this Court when supported by the evidence on
record."22 We therefore adopt the factual findings of the
lower court and the Court of Appeals and rule that the
grant of respondent’s demurrer to evidence was proper
under the circumstances obtaining in the case at bar.
Section 1, Rule 33 of the Rules of Court provides:
Section 1. Demurrer to evidence. – After the plaintiff has
completed the presentation of his evidence, the
defendant may move for dismissal on the ground that
upon the facts and the law the plaintiff has shown no
right to relief. If his motion is denied, he shall have the
right to present evidence. If the motion is granted but on
appeal the order of dismissal is reversed he shall be
deemed to have waived the right to present evidence.
A demurrer to evidence is defined as "an objection by
one of the parties in an action, to the effect that the
evidence which his adversary produced is insufficient in
point of law, whether true or not, to make out a case or
sustain the issue."23 We have also held that a demurrer
to evidence "authorizes a judgment on the merits of the
case without the defendant having to submit evidence on
his part, as he would ordinarily have to do, if plaintiff’s
evidence shows that he is not entitled to the relief
sought."24 1âwphi1
There was no error on the part of the trial court when it
dismissed the petition for guardianship without first
requiring respondent to present his evidence precisely
because the effect of granting a demurrer to evidence
other than dismissing a cause of action is, evidently, to
preclude a defendant from presenting his evidence
since, upon the facts and the law, the plaintiff has shown
no right to relief.
WHEREFORE, premises considered, the petition is
hereby DENIED. The assailed Decision dated February
29, 2008 as well as the Resolution dated September 16,
2008 of the Court of Appeals in CA-G.R. CV No. 88449
are AFFIRMED.
SO ORDERED.
G.R. No. L-3071             May 29, 1950
SALVACION LOPEZ, petitioner,  several defenses. These are, first, that the petitioner's
vs.
JOSE TEODORO, Sr., Judge of the Court of First
Instance of Occidental Negros, EULALIO LOPEZ, Jr.,
and JESUS JALBUENA, respondents.
Januario L. Jison, Jose O. Hizon and Jose T. Jamandre
for petitioner.
Lakandola G. Lopez for respondents Teodoro, Sr. and
Lopez, Jr.
Antonio T. Lozada for respondent Jalbuena.
TUASON, J.:
Eulalio Lopez, Sr., an incapacitated under the judicial
guardianship of Eulalio Lopez, Jr., was the exclusive and
absolute owner of an hacienda  in Silay, Negros
Occidental, having a total area of over 100 hectares. On
September 3, 1948, the Court of First Instance, acting
upon a motion of Senen L. Gamboa and Adelaida
Gamboa filed in the proceedings for guardianship,
ordered the guardian to pay the movants P7,312 plus 12
per cent interest from August, 1944, amount which
represented loans properly authorized by court. The
order provided that if the guardian did not have funds to
pay those debts, he should take the necessary steps for
the sale of some of the property of the guardianship.
In pursuance of this authority, the guardian sold the
above tract of land, the only property of which the
incapacitated was possessed, on January 11, 1949, to
Jesus bound himself to pay the mortgage debt and other
obligations aggregating P22,346.30, and to satisfy the
balance in two installments.
It is admitted that in authorizing the sale of some of the
property of the incapacitated, the court did not follow the
requirement of section 2 of Rule 96 to the effect that the
court shall direct the next of kin of the ward, and all
persons interested in the estate, to appear at a
reasonable time and place to be specified in the order, to
show cause why the prayer for the sale should not be
granted. Nor did the court specify, as provided by section
4 of the same Rule, whether the sale should be effected
publicly or privately.
Although Eulalio Lopez, Jr. was the judicial guardian, the
incapacitated was and is under the actual care and
custody of his sister, Salvacion Lopez. Believing that the
sale was prejudicial to her brother's interest, Salvacion
Lopez filed a motion for reconsideration of the court's
order authorizing said sale, and upon the motion being
denied, she brought this petition
for certiorari and mandamus, contending that the sale
was null and void by reason of the court's failure to
adhere to Rule 96, and praying that the orders of the
respondent court be corrected and the said court
directed to revoke the sale.
The judicial guardian, Eulalio Lopez, Jr., and the vendee,
Jesus Jalbuena, have filed separate answer and raised
remedy, if she has any, is by appeal and
not certiorari and/or mandamus; second, that the
petitioner has no interest whatsoever in the subject
matter of her petition; third, that whether the sale is
prejudicial or not is a proper ground for a separate action
and not certiorari or mandamus; fourth, that the sale was
not made in contravention of existing laws; and fifth, that
the court, as probate court, has lost jurisdiction over the
property sold because the land is now registered in the
name of the purchaser to whom a new transfer certificate
of title has been duly issued.
Without deciding the legality or illegality of the sale, or
whether this matter should be ventillated in an ordinary
action instead of in a proceeding for certiorari, it is
evident that appeal and not certiorari or mandamus is
the proper remedy. Unquestionably, the court of first
instance in which the guardianship proceedings were
pending had jurisdiction to order the questioned sale.
The court's jurisdiction is not disputed. Nor was there an
abuse of discretion, judging from the averments in the
answers. It appears that the outstanding indebtedness of
the guardianship properly and legally incurred amounted
to P36,833.66, part of which was due the petitioner for
the support and maintenance of the incapacitated.
The other defense that does not leave much room for
discussion is that the petitioner has no legal interest in
her complaint. The incapacitated has children, all of age,
one of whom is the judicial guardian, while the petitioner
is only the ward's sister. Not being Eulalio Lopez's forced
heir, she was not prejudiced by the sale she seeks to
impugn. It is true that she was a creditor but she does
not claim any right to be notified of the sale as such
creditor, and her credit was not impaired. On the
contrary, she was benefited by the sale in that she was
paid what was due her from its proceeds. As to the other
creditors, they did not appear to have any objection to
the action taken by the judicial guardian and authorized
by the court.
The petitioner insist that she is next of kin. She is in
error. "Next of kin" within the meaning of Rule 96 are
relatives whose relationship is such that they are entitled
to share in the estate as distributees. (33 C.J., 930-931.)
"Next of kin" is also defined in Black's Law Dictionary,
3rd ed., as to mean not the next of kindred but those
relatives who share in the estate according to the statute
of distribution including those claiming per stripes or by
representation.
None of the children of the incapacitated is or was
opposed to the sale sought to be set aside. Only these
had an interest in the land of their father, besides the
creditors, and only they or the creditors who may have
been prejudiced by the sale have a right to object
thereto.
Having reached these conclusions, it is unnecessary for
us to discuss the other questions raised.
The petition is denied, without costs.
Ozaeta, Pablo, Bengzon, Montemayor, and Reyes,
JJ., concur.
G.R. No. L-18872             July 15, 1966
In the Matter of the Trusteeship of Minors Benigno,
Angela and Antonio, all surnamed Perez y Tuason. 
J. ANTONIO ARANETA, petitioner and appellee, 
vs.
ANTONIO PEREZ, Judicial Guardian of Angela and
ANTONIO PEREZ Y TUASON, oppositor and appellant.
Alfonso Felix, Jr. for oppositor and appellant.
Araneta and Araneta for petitioner and appellee.
MAKALINTAL, J.:
This appeal was originally taken to the Court of Appeals,
and subsequently certified to Us for the reason that it
involves a purely legal question. The order appealed
from was issued by the Court of First Instance of Rizal
on April 4, 1957 in trusteeship proceeding No. Q-73.
The trust was established pursuant to the will of the late
Angela S. Tuason, particularly the clause which reads as
follows:
CUARTO. Instituyo como mis unicos herederos
a mis mencionados tres hijos, a razon de una
novena parte del caudal hereditario que dejare
para cada uno de ellos Lego a mi hijo Antonio
otra porcion equivalente a dos novenas partes
del caudal hereditario: "Y finalmente lego a mis
nietos que fueren hijos de mi hija Angela, otra
porcion equivalente a dos novenas partes del
caudal hereditario. Dichos tres legados sin
embargo, estan suietos a la manda qui se
menciona en el parrafo siguiente. Los dos
legados a favor de mis mencionados nietos
seran administrados por mi albacea, J. Antonio
Araneta (y en defecto de este, su hermano
Salvador Araneta), con amplios poderes de
vender los mismos y con su producto adquirir
otros bienes y con derecho a cobrar por su
administracion, honorarios razonables. Los
poderes de dicho administrador seran los de un
trustee con los poderes mas amplios permitidos
por la ley. Debera, sin embargo, rendir
trimestralmente, cuenta de su administracion a
los legatarios que fueren mayores de edad y a
los tutores de los que fueren menores de edad.
Y asimismo, debera hacerles entrega de la
participacion que a cada legatario corresponda
en las rentas netas de la administracion. La
administracion sobre un grupo cesara cuando
todos mis nietos de dicho grupo llegaren a su
mayoria de edad, y una mayoria de los mismos
acordaren la terminacion de la administracion.
Por nietos, debe enterderse no solamente a los
nietos varones sino tambien a los nietos
mujeres.1äwphï1.ñët
Appellee J. Antonio Araneta was appointed trustee on
March 24, 1950 and he qualified on the following May 5
when he took his oath of office. The beneficiaries of the
trust are Benigno, Angela and Antonio, all surnamed
Perez y Tuason, the last two being represented by
appellant Antonio Perez, who is their father and judicial
guardian.
In the order appealed from the lower court approved,
upon petition of the trustee, a deed of donation executed
by him on April 30, 1955 in favor of the City of Manila
covering a lot pertaining to the trusteeship, with an area
of 853.1 square meters. Such approval was given over
the opposition of appellant Antonio Perez. As found by
the lower court, the said lot was being used as a street
and had been so used since prior to its acquisition by the
late Angela S. Tuason. The street leads to other lots also
pertaining to the trusteeship with an area of 8,176.6
square meters, and it is through the said street that the
tenants occupying those other lots pass in going to and
from their respective houses. On the lot in question the
trustee had been paying a realty tax of P100.00 yearly.
The lower court also found that the lots aforementioned
would be converted into a residential subdivision and
that for the purpose the corresponding plan has been
prepared; that the lot donated to the City of Manila
appears on the plan to be included among the areas
covered by the street lay-outs as required by law; and
that the donation would save the trusteeship the amount
of the realty tax and relieve it from the duty of
maintaining the lot in usable condition as a street. There
can be no dispute therefore that the donation was
beneficial to the trusteeship, not to say necessary under
the law if the planned residential subdivision is to be
realized.
Appellant does not deny the beneficial aspects of the
donation. But he maintains that it is invalid on the ground
that under Article 736 of the Civil Code "guardians and
trustees cannot donate the properties entrusted to
them". It should be remembered that this article is a new
provision of the Civil Code, which took effect only on
August 30, 1950 (Rep. Act No. 386) and does not apply
retroactively to the testamentary trust established upon
the death of Angela S. Tuason on March 20, 1948,
taking into account Articles 2253 and 2255, which
provide against such retroactive operation on acts or
events that took place under former laws. There being
nothing in the old Civil Code which prohibits a trustee
from donating properties under trusteeship, and
considering that the powers given to herein appellee as
trustee are of a plenary character, subject only to the
limitation that they should be permissible under the law;
considering further that when the testatrix conferred such
powers she must have had in mind the law that was in
force at the time; and considering finally that after all a
trust is created for the benefit of the cestuis que
trust and that in this particular case the acts of the
trustee are subject to the supervision of the Court, We
see no reason why the donation in question should not
be allowed.
The new Civil Code, in prohibiting a trustee from
donating properties entrusted to him does so for the
protection of the trust beneficiaries and evidently
contemplates gifts of pure beneficence, that is, those
which are supported by no other cause than the liberality
of the donor. But when the donation, as in the present
instance, is clearly in their interest, to say it cannot be
done would be contrary to the spirit and intent of the law.
The order appealed from is hereby affirmed, with costs
against the appellant.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala,
Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.
G.R. No. 154994               June 28, 2005
JOYCELYN PABLO-GUALBERTO, petitioner, 
vs.
CRISANTO RAFAELITO GUALBERTO V, respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 156254               June 28, 2005
CRISANTO RAFAELITO G. GUALBERTO
V, petitioner, 
vs.
COURT OF APPEALS; Hon. HELEN B. RICAFORT,
Presiding Judge, Regional Trial Court 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 Review1 filed by Joycelyn Pablo-Gualberto
under Rule 45 of the Rules of Court, assailing the August
30, 2002 Decision2 of the Court of Appeals (CA) in CA-
GR SP No. 70878. The assailed Decision disposed as
follows:
"WHEREFORE, premises considered, the Petition for
Certiorari is hereby GRANTED. The assailed Order of
May 17, 2002 is hereby SET
ASIDE and ANNULLED. The custody of the child is
hereby ordered returned to [Crisanto Rafaelito G.
Gualberto V].
"The [respondent] court/Judge is hereby directed to
consider, hear and resolve [petitioner’s] motion to lift the
award of custody pendente lite  of the child to
[respondent]."3
The second is a Petition for Certiorari4 filed by Crisanto
Rafaelito Gualberto V under Rule 65 of the Rules of
Court, charging the appellate court with grave abuse of
discretion for denying his Motion for Partial
Reconsideration of the August 30, 2002 Decision. The
denial was contained in the 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 4th
attempt 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.lawphil.net
‘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.1avvphil.zw+ The father should however be
entitled to spend time with the minor. These do not
appear compelling reasons to deprive him of the
company of his child.
‘When [Joycelyn] appeared before this Court, she stated
that she has no objection to the father visiting the child
even everyday provided it is in Mindoro.
‘The Court hereby grants the mother, [Joycelyn], the
custody of Crisanto Rafaello P. Gualberto, with [the] right
of [Crisanto] to have the child with him every other
weekend.
‘WHEREFORE:
1. The [M]otion to Dismiss is hereby DENIED;
2. Custody pendente lite is hereby given to the
mother Joycelyn Pablo Gualberto with the right
of the father, x x x [Crisanto], to have him every
other week-end.
3. Parties are admonished not to use any other
agencies of the government like the CIDG to
interfere in this case and to harass the parties.’"6
In a Petition for Certiorari7 before the CA, Crisanto
charged the Regional Trial Court (Branch 260) of
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 mail12 at the Biñan, Laguna Post Office on
October 24, 2002. This is the date clearly stamped on
the face of the envelope13 and attested to in the Affidavit
of Service14 accompanying the Petition. Petitioner
Joycelyn explained that the filing and the service had
been made by registered mail due to the "volume of
delivery assignments and the lack of a regular
messenger."15
The Petition is, therefore, considered to have been filed
on October 24, 2002, its mailing date as shown by the
post office stamp on the envelope. The last sentence of
Section 3 of Rule 13 of the Rules provides that the date
of filing may be shown either  by the post office stamp on
the envelope or by the registry receipt. Proof of its filing,
on the other hand, is shown by the existence of the
petition in the record, pursuant to Section 12 of Rule
13.16
The postmaster satisfactorily clarifies that Registry Bill
No. 88, which shows the date November 2, 2002, merely
discloses when the mail matters received by the 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
Book18 that shows the list of mail matters that have been
registered for mailing on a particular day, along with the
names of the senders and the addressees. That book
shows that Registry Receipt Nos. 2832-A and 2832-B,
pertaining to the mailed matters for the Supreme Court,
were issued on October 24, 2002.
Prematurity of the Petition
As to the alleged prematurity of the Petition of Joycelyn,
Crisanto points out that his Urgent Motion for Partial
Reconsideration19 was still awaiting resolution by the CA
when she filed her Petition before this Court on October
24, 2002. The CA ruled on the Motion only on November
27, 2002.
The records show, however, that the Motion of Crisanto
was mailed only on September 12, 2002. Thus, on
September 17, 2002, when Joycelyn filed her Motion for
Extension of Time to file her Petition for Review, she
might have still been unaware that he had moved for a
partial reconsideration of the August 20, 2002 CA
Decision. Nevertheless, upon being notified of the filing
of his Motion, she should have manifested that fact to
this Court.
With the 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 Dismiss24 filed by Joycelyn
before the RTC is her ancillary prayer for the court to lift
and set aside its April 3, 2002 Order awarding to
Crisanto custody pendente lite  of their minor son.
Indeed, the necessary consequence of granting her
Motion to Dismiss would have been the setting aside of
the Order awarding Crisanto provisional custody of the
child. Besides, even if the Motion to Dismiss was denied
-- as indeed it was -- the trial court, in its discretion and if
warranted, could still have granted the ancillary prayer
as an alternative relief.
Parenthetically, Joycelyn’s Motion need not have been
verified because of the provisional nature of the April 3,
2002 Order. Under Rule 3825 of the Rules of Court,
verification is required only when relief is sought from a
final and executory Order. Accordingly, the court may set
aside its own orders even without a proper motion,
whenever such action is warranted by the Rules and to
prevent a miscarriage of justice.26
Denial of the Motion for Reconsideration Proper
Second, the requirement in Section 1 of Rule 36 (for
judges to state clearly and distinctly the reasons for their
dispositions) refers only to decisions and final orders on
the merits, not to those resolving incidental
matters.27 The provision reads:
"SECTION 1. Rendition of judgments and final orders. –
A judgment or final order determining the merits of the
caseshall 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 action28 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 Code31 provides:
"ART. 213. In case of separation of the parents, parental
authority shall be exercised by the parent designated by
the court. The court shall take into account all relevant
considerations, especially the choice of the child over
seven years of age, unless the parent chosen is unfit.
No child under seven years of age shall be separated
from the mother, unless the court finds compelling
reasons to order otherwise."
This Court has held that when the parents are
separated, legally or otherwise, the foregoing provision
governs the custody of their child.32 Article 213 takes its
bearing from Article 363 of the Civil Code, which reads:
"Art. 363. In all questions on the care, custody,
education and property of children, the 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).34Article 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 21135 was
derived from the first sentence of the aforequoted Article
17; Article 212,36 from the second sentence; and Article
213,37 save for a few additions, from the third sentence.
It should be noted that the Family Code has reverted to
the Civil Code provision mandating that a child
below 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 642 of Rule 99 of the Rules of
Court has been held to connote a mandatory
character.43 Article 213 and Rule 99 similarly
contemplate a situation in which the parents of the minor
are married to each other, but are separated by virtue of
either a decree of legal separation or a de facto
separation.44 In the present case, the parents are living
separately as a matter of fact.
The Best Interest of the Child a Primary Consideration
The Convention on the Rights of the Child provides that
"[i]n all actions concerning children, whether undertaken
by public or private social welfare institutions, courts of
law, administrative authorities or legislative bodies,
the best interests of the child shall be a primary
consideration."45
The principle of "best interest of the child" pervades
Philippine cases involving adoption, guardianship,
support, personal status, minors in conflict with the law,
and child custody. In these cases, it has long 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 compellingevidence 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
G.R. No. 148788               November 23, 2007
SOLEDAD CAÑEZO, substituted by WILLIAM
CAÑEZO and VICTORIANO CAÑEZO Petitioners,  more particularly described under paragraph 5 of the
vs.
CONCEPCION ROJAS, Respondent.
DECISION
NACHURA, J.:
This is a petition for review on certiorari from the
Decision1 of the Court of Appeals, dated September 7,
2000, in CA-G.R. SP No. 53236, and Resolution dated
May 9, 2001.
On January 29, 1997, petitioner Soledad Cañezo filed a
Complaint2 for the recovery of real property plus
damages with the Municipal Trial Court (MTC) of Naval,
Biliran, against her father’s second wife, respondent
Concepcion Rojas. The subject property is an
unregistered land with an area of 4,169 square meters,
situated at Higatangan, Naval, Biliran. Cañezo attached
to the complaint a Joint Affidavit3 executed on May 10,
1979 by Isidro Catandijan and Maximina Cañezo
attesting to her acquisition of the property.
In her complaint, the petitioner alleged that she bought
the parcel of land in 1939 from Crisogono Limpiado,
although the transaction was not reduced into writing.
Thereafter, she immediately took possession of the
property. When she and her husband left for Mindanao
in 1948, she entrusted the said land to her father,
Crispulo4 Rojas, who took possession of, and cultivated,
the property. In 1980, she found out that the respondent,
her stepmother, was in possession of the property and
was cultivating the same. She also discovered that the
tax declaration over the property was already in the
name of Crispulo Rojas.5
In her Answer, the respondent asserted that, contrary to
the petitioner’s claim, it was her husband, Crispulo
Rojas, who bought the property from Crisogono
Limpiado in 1948, which accounts for the tax declaration
being in Crispulo’s name. From then on, until his death in
1978, Crispulo possessed and cultivated the property.
Upon his death, the property was included in his estate,
which was administered by a special administrator,
Bienvenido Ricafort. The petitioner, as heir, even
received her share in the produce of the estate. The
respondent further contended that the petitioner ought to
have impleaded all of the heirs as defendants. She also
argued that the fact that petitioner filed the complaint
only in 1997 means that she had already abandoned her
right over the property.6
On July 3, 1998, after hearing, the MTC rendered a
Decision in favor of the petitioner, thus:
WHEREFORE, premises considered, the Court finds a
preponderance of evidence in favor of plaintiff Soledad
Cañezo and against defendant Concepcion Rojas by
declaring plaintiff the true and lawful owner of the land
complaint and hereby orders defendant Concepcion
Rojas:
a) To vacate and surrender possession of the
land to plaintiff;
b) To pay plaintiff the sum of ₱34,000.00 actual
damages, ₱10,000.00 for attorney’s fees and
litigation expenses; and
c) To pay the costs.
SO ORDERED.7
Despite the respondent’s objection that the verbal sale
cannot be proven without infringing the Statute of
Frauds, the MTC gave credence to the testimony of the
petitioners’ two witnesses attesting to the fact that
Crisogono Limpiado sold the property to the petitioner in
1939. The MTC also found no evidence to show that
Crispulo Rojas bought the property from Crisogono
Limpiado in 1948. It held that the 1948 tax declaration in
Crispulo’s name had little significance on respondent’s
claim, considering that in 1948, the "country was then
rehabilitating itself from the ravages of the Second World
War" and "the government was more interested in the
increase in tax collection than the observance of the
niceties of law."8
The respondent appealed the case to the Regional Trial
Court (RTC) of Naval, Biliran. On October 12, 1998, the
RTC reversed the MTC decision on the ground that the
action had already prescribed and acquisitive
prescription had set in. The dispositive portion of the
Decision reads:
WHEREFORE, premises considered, the decision of the
Municipal Trial Court of Naval, Biliran awarding
ownership of the disputed land to the plaintiff and further
allowing recovery of damages is hereby REVERSED in
toto. There is no award of damages.
The said property remains as the legitime of the
defendant Concepcion Rojas and her children.
SO ORDERED.9
However, acting on petitioner’s motion for
reconsideration, the RTC amended its original decision
on December 14, 1998.10 This time, it held that the action
had not yet prescribed considering that the petitioner
merely entrusted the property to her father. The ten-year
prescriptive period for the recovery of a property held in
trust would commence to run only from the time the
trustee repudiates the trust. The RTC found no evidence
on record showing that Crispulo Rojas ever ousted the
petitioner from the property. The dispositive portion of
the amended decision reads as follows:
WHEREFORE, in view of the foregoing considerations,
the decision of this Court dated October 12, 1998 is
hereby set aside and another is hereby entered
modifying the decision of the Court a quo and declaring
Soledad Rojas Vda. De Cañezo as the true and lawful
owner of a parcel of land, more particularly described
and bounded as follows:
A parcel of land situated at Higatangan, Naval, Biliran,
bounded on the North by Policarpio Limpiado; on the
South by Fidel Limpiado; on the East by Seashore; and
on the West by Crispolo (sic) Limpiado with an
approximate area of 4,169 square meters per Tax
Declaration No. 2258, later under Tax Declaration No.
4073 in the name of Crispolo Rojas and later in the
name of the Heirs of Crispolo Rojas.
Further, ordering defendant-appellant Concepcion Rojas
and all persons claiming rights or interest under her to
vacate and surrender possession of the land aforecited
to the plaintiff or any of her authorized representatives,
Ordering the Provincial and/or Municipal Assessor’s
Office to cancel the present existing Tax Declaration in
the name of Heirs of Crispolo Rojas referring to the
above-described property in favor of the name of
Soledad Rojas Vda. De Cañezo, Ordering the
defendant-appellant Concepcion Rojas to pay the
plaintiff-appellee the sum of ₱34,000.00 in actual
damages, and to pay for the loss of her share in money
value of the products of the coconuts of said land from
1979 to 1997 and to pay further until the case is
terminated at the rate of ₱200.00 per quarter based on
the regular remittances of the late Crispolo Rojas to the
plaintiff-appellee, and to pay the costs.
SO ORDERED.11
The respondent filed a motion to reconsider the
Amended Decision but the RTC denied the same in an
Order dated April 25, 1999.
She then filed a petition for review with the Court of
Appeals (CA), which reversed the Amended Decision of
the RTC on September 7, 2000, thus:
WHEREFORE, the amended decision dated December
14, 1998 rendered in Civil Case No. B-1041 is hereby
REVERSED and SET ASIDE. The complaint filed by
Soledad Cañezo before the Municipal Trial Court of
Naval, Biliran is hereby DISMISSED on grounds of
laches and prescription and for lack of merit.
SO ORDERED.12
The CA held that the petitioner’s inaction for several
years casts a serious doubt on her claim of ownership
over the parcel of land. It noted that 17 years lapsed
since she discovered that respondent was in adverse
possession of the property before she instituted an
action to recover the same. And during the probate
proceedings, the petitioner did not even contest the
inclusion of the property in the estate of Crispulo
Rojas. 13
The CA was convinced that Crispulo Rojas owned the
property, having bought the same from Crisogono
Limpiado in 1948. Supporting this conclusion, the
appellate court cited the following circumstances: (1) the
property was declared for taxation purposes in Crispulo’s
name and he had been paying the taxes thereon from
1948 until his death in 1978; (2) Crispulo adversely
possessed the same property from 1948 until his death
in 1978; and (3) upon his death in 1978, the property
was included in his estate, the proceeds of which were
distributed among his heirs.14
The CA further held that, assuming that there was an
implied trust between the petitioner and her father over
the property, her right of action to recover the same
would still be barred by prescription since 49 years had
already lapsed since Crispulo adversely possessed the
contested property in 1948.15
On May 9, 2001, the CA denied the petitioner’s motion
for reconsideration for lack of merit.16
In this petition for review, the petitioner, substituted by
her heirs, assigns the following errors:
That the Court of Appeals committed grave abuse of
discretion in setting aside petitioner’s contention that the
Petition for Review filed by respondent CONCEPCION
ROJAS before the Court of Appeals was FILED OUT OF
TIME;
That the Court of Appeals erred and committed grave
abuse of discretion amounting to lack or excess of
jurisdiction when it decided that the filing of the case by
SOLEDAD CAÑEZO for Recovery of Real Property was
already barred by PRESCRIPTION AND LACHES.17
The petitioner insists that the respondent’s petition for
review before the CA was filed out of time. The petitioner
posits that the CA may not grant an additional extension
of time to file the petition except for the most compelling
reason. She contends that the fact that respondent’s
counsel needed additional time to secure the certified
copy of his annexes cannot be considered as a
compelling reason that would justify an additional period
of
extension. She admits, though, that this issue was raised
for the first time in their motion for reconsideration, but
insists that it can be raised at any time since it concerns
the jurisdiction of the CA over the petition.
The petitioner further posits that prescription and laches
are unavailing because there was an express trust
relationship between the petitioner and Crispulo Rojas
and his heirs, and express trusts do not prescribe. Even
assuming that it was not an express trust, there was a
resulting trust which generally does not prescribe unless
there is repudiation by the trustee.
For her part, the respondent argues that the petitioners
are now estopped from questioning the CA Resolution
granting her second motion for extension to file the
petition for review. She notes that the petitioner did not
raise this issue in the comment that she filed in the CA.
In any case, the grant of the second extension of time
was warranted considering that the certified true copy of
the assailed RTC orders did not arrive at the office of
respondent’s counsel in Cebu City in time for the filing of
the petition.
On the merits, the respondent asserts that the complaint
is barred by prescription, laches and estoppel. From
1948 until his death in 1978, Crispulo cultivated the
property and was in adverse, peaceful and continuous
possession thereof in the concept of owner. It took the
petitioner 49 years from 1948 before she filed the
complaint for recovery of the property in 1997. Granting
that it was only in 1980 that she found out that the
respondent adversely possessed the property, still
petitioner allowed 17 years to elapse before she
asserted her alleged right over the property.
Finally, the respondent maintains that the other co-
owners are indispensable parties to the case; and
because they were not impleaded, the case should be
dismissed.
The petition has no merit.
On the procedural issue raised by the petitioner, we find
no reversible error in the grant by the CA of the second
motion for extension of time to file the respondent’s
petition. The grant or denial of a motion for extension of
time is addressed to the sound discretion of the
court.18 The CA obviously considered the difficulty in
securing a certified true copy of the assailed decision
because of the distance between the office of
respondent’s counsel and the trial court as a compelling
reason for the request. In the absence of any showing
that the CA granted the motion for extension
capriciously, such exercise of discretion will not be
disturbed by this Court.
On the second issue, the petitioner insists that her right
of action to recover the property cannot be barred by
prescription or laches even with the respondent’s
uninterrupted possession of the property for 49 years
because there existed between her and her father an
express trust or a resulting trust. Indeed, if no trust
relations existed, the possession of the property by the
respondent, through her predecessor, which dates back
to 1948, would already have given rise to acquisitive
prescription in accordance with Act No. 190 (Code of
Civil Procedure).19 Under Section 40 of Act No. 190, an
action for recovery of real property, or of an interest
therein, can be brought only within ten years after the
cause of action accrues. This period coincides with the
ten-year period for acquisitive prescription provided
under Section 4120 of the same Act.
Thus, the resolution of the second issue hinges on our
determination of the existence of a trust over the
property --- express or implied --- between the petitioner
and her father.
A trust is the legal relationship between one person
having an equitable ownership of property and another
person owning the legal title to such property, the
equitable ownership of the former entitling him to the
performance of certain duties and the exercise of certain
powers by the latter.21 Trusts are either express or
implied.22 Express trusts are those which are created by
the direct and positive acts of the parties, by some
writing or deed, or will, or by words evincing an intention
to create a trust.23 Implied trusts are those which, without
being expressed, are deducible from the nature of the
transaction as matters of intent or, independently, of the
particular intention of the parties, as being superinduced
on the transaction by operation of law basically by
reason of equity.24 An implied trust may either be a
resulting trust or a constructive trust.
It is true that in express trusts and resulting trusts, a
trustee cannot acquire by prescription a property
entrusted to him unless he repudiates the trust.25 The
following discussion is instructive:
There is a rule that a trustee cannot acquire by
prescription the ownership of property entrusted to him,
or that an action to compel a trustee to convey property
registered in his name in trust for the benefit of the cestui
que trust does not prescribe, or that the defense of
prescription cannot be set up in an action to recover
property held by a person in trust for the benefit of
another, or that property held in trust can be recovered
by the beneficiary regardless of the lapse of time.
That rule applies squarely to express trusts. The basis of
the rule is that the possession of a trustee is not
adverse. Not being adverse, he does not acquire by
prescription the property held in trust. Thus, Section 38
of Act 190 provides that the law of prescription does not
apply "in the case of a continuing and subsisting trust."
The rule of imprescriptibility of the action to recover
property held in trust may possibly apply to resulting
trusts as long as the trustee has not repudiated the trust.
xxxx
Acquisitive prescription may bar the action of the
beneficiary against the trustee in an express trust for the
recovery of the property held in trust where (a) the
trustee has performed unequivocal acts of repudiation
amounting to an ouster of the cestui que trust; (b) such
positive acts of repudiation have been made known to
the cestui que trust, and (c) the evidence thereon is clear
and conclusive.26
As a rule, however, the burden of proving the existence
of a trust is on the party asserting its existence, and such
proof must be clear and satisfactorily show the existence
of the trust and its elements.27 The presence of the
following elements must be proved: (1) a trustor or
settlor who executes the instrument creating the trust; (2)
a trustee, who is the person expressly designated to
carry out the trust; (3) the trust res, consisting of duly
identified and definite real properties; and (4) the cestui
que trust, or beneficiaries whose identity must be
clear.28 Accordingly, it was incumbent upon petitioner to
prove the existence of the trust relationship. And
petitioner sadly failed to discharge that burden.
The existence of express trusts concerning real property
may not be established by parol evidence.29 It must be
proven by some writing or deed. In this case, the only
evidence to support the claim that an express trust
existed between the petitioner and her father was the
self-serving testimony of the petitioner. Bare allegations
do not constitute evidence adequate to support a
conclusion. They are not equivalent to proof under the
Rules of Court.30
In one case, the Court allowed oral testimony to prove
the existence of a trust, which had been partially
performed. It was stressed therein that what is important
is that there should be an intention to create a trust, thus:
What is crucial is the intention to create a trust. While
oftentimes the intention is manifested by the trustor in
express or explicit language, such intention may be
manifested by inference from what the trustor has said or
done, from the nature of the transaction, or from the
circumstances surrounding the creation of the purported
trust.
However, an inference of the intention to create a trust,
made from language, conduct or circumstances, must be
made with reasonable certainty. It cannot rest on vague,
uncertain or indefinite declarations. An inference of
intention to create a trust, predicated only on
circumstances, can be made only where they admit of no
other interpretation.31
Although no particular words are required for the
creation of an express trust, a clear intention to create a
trust must be shown; and the proof of fiduciary
relationship must be clear and convincing. The creation
of an express trust must be manifested with reasonable
certainty and cannot be inferred from loose and vague
declarations or from ambiguous circumstances
susceptible of other interpretations.32
In the case at bench, an intention to create a trust cannot
be inferred from the petitioner’s testimony and the
attendant facts and circumstances. The petitioner
testified only to the effect that her agreement with her
father was that she will be given a share in the produce
of the property, thus:
Q: What was your agreement with your father
Crispulo Rojas when you left this property to
him?
A: Every time that they will make copra, they will
give a share.
Q: In what particular part in Mindanao [did] you
stay with your husband?
A: Bansalan, Davao del Sur.
Q: And while you were in Bansalan, Davao del
Sur, did Crispolo Rojas comply with his
obligation of giving your share the proceeds of
the land?
A: When he was still alive, he gave us every
three months sometimes ₱200.00 and
sometimes ₱300.00.33
This allegation, standing alone as it does, is inadequate
to establish the existence of a trust because profit-
sharing per se, does not necessarily translate to a trust
relation. It could also be present in other relations, such
as in deposit.
What distinguishes a trust from other relations is the
separation of the legal title and equitable ownership of
the property. In a trust relation, legal title is vested in the
fiduciary while equitable ownership is vested in a cestui
que trust. Such is not true in this case. The petitioner
alleged in her complaint that the tax declaration of the
land was transferred to the name of Crispulo without her
consent. Had it been her intention to create a trust and
make Crispulo her trustee, she would not have made an
issue out of this because in a trust agreement, legal title
is vested in the trustee. The trustee would necessarily
have the right to transfer the tax declaration in his name
and to pay the taxes on the property. These acts would
be treated as beneficial to the cestui que trust and would
not amount to an adverse possession.34
Neither can it be deduced from the circumstances of the
case that a resulting trust was created.1âwphi1 A
resulting trust is a species of implied trust that is
presumed always to have been contemplated by the
parties, the intention as to which can be found in the
nature of their transaction although not expressed in a
deed or instrument of conveyance. A resulting trust is
based on the equitable doctrine that it is the more
valuable consideration than the legal title that determines
the equitable interest in property.35
While implied trusts may be proved by oral evidence, the
evidence must be trustworthy and received by the courts
with extreme caution, and should not be made to rest on
loose, equivocal or indefinite declarations. Trustworthy
evidence is required because oral evidence can easily
be fabricated.36 In order to establish an implied trust in
real property by parol evidence, the proof should be as
fully convincing as if the acts giving rise to the trust
obligation are proven by an authentic document. An
implied trust, in fine, cannot be established upon vague
and inconclusive proof.37 In the present case, there was
no evidence of any transaction between the petitioner
and her father from which it can be inferred that a
resulting trust was intended.
In light of the disquisitions, we hold that there was no
express trust or resulting trust established between the
petitioner and her father. Thus, in the absence of a trust
relation, we can only conclude that Crispulo’s
uninterrupted possession of the subject property for 49
years, coupled with the performance of acts of
ownership, such as payment of real estate taxes,
ripened into ownership. The statutory period of
prescription commences when a person who has neither
title nor good faith, secures a tax declaration in his name
and may, therefore, be said to have adversely claimed
ownership of the lot.38 While tax declarations and
receipts are not conclusive evidence of ownership and
do not prove title to the land, nevertheless, when
coupled with actual possession, they constitute evidence
of great weight and can be the basis of a claim of
ownership through prescription.39 Moreover, Section 41
of Act No. 190 allows adverse possession
in any character to ripen into ownership after the lapse of
ten years. There could be prescription under the said
section even in the absence of good faith and just title.40
All the foregoing notwithstanding, even if we sustain
petitioner’s claim that she was the owner of the property
and that she constituted a trust over the property with
her father as the trustee, such a finding still would not
advance her case.
Assuming that such a relation existed, it terminated upon
Crispulo’s death in 1978. A trust terminates upon the
death of the trustee where the trust is personal to the
trustee in the sense that the trustor intended no other
person to administer it.41 If Crispulo was indeed
appointed as trustee of the property, it cannot be said
that such appointment was intended to be conveyed to
the respondent or any of Crispulo’s other heirs. Hence,
after Crispulo’s death, the respondent had no right to
retain possession of the property. At such point, a
constructive trust would be created over the property by
operation of law. Where one mistakenly retains property
which rightfully belongs to another, a constructive trust is
the proper remedial device to correct the situation.42
A constructive trust is one created not by any word or
phrase, either expressly or impliedly, evincing a direct
intention to create a trust, but one which arises in order
to satisfy the demands of justice. It does not come about
by agreement or intention but in the main by operation of
law, construed against one who, by fraud, duress or
abuse of confidence, obtains or holds the legal right to
property which he ought not, in equity and good
conscience, to hold.43
As previously stated, the rule that a trustee cannot, by
prescription, acquire ownership over property entrusted
to him until and unless he repudiates the trust, applies to
express trusts and resulting implied trusts. However, in
constructive implied trusts, prescription may supervene
even if the trustee does not repudiate the relationship.
Necessarily, repudiation of the said trust is not a
condition precedent to the running of the prescriptive
period.44 A constructive trust, unlike an express trust,
does not emanate from, or generate a fiduciary relation.
While in an express trust, a beneficiary and a trustee are
linked by confidential or fiduciary relations, in a
constructive trust, there is neither a promise nor any
fiduciary relation to speak of and the so-called trustee
neither accepts any trust nor intends holding the property
for the beneficiary.45 The relation of trustee and cestui
que trust  does not in fact exist, and the holding of a
constructive trust is for the trustee himself, and therefore,
at all times adverse.
In addition, a number of other factors militate against the
petitioner’s case. First, the petitioner is estopped from
asserting ownership over the subject property by her
failure to protest its inclusion in the estate of Crispulo.
The CA, thus, correctly observed that:
Even in the probate proceedings instituted by the heirs of
Crispulo Rojas, which included her as a daughter of the
first marriage, Cañezo never contested the inclusion of
the contested property in the estate of her father. She
even participated in the project of partition of her father’s
estate which was approved by the probate court in 1984.
After personally receiving her share in the proceeds of
the estate for 12 years, she suddenly claims ownership
of part of her father’s estate in 1997.
The principle of estoppel in pais applies when -- by one’s
acts, representations, admissions, or silence when there
is a need to speak out -- one, intentionally or through
culpable negligence, induces another to believe certain
facts to exist; and the latter rightfully relies and acts on
such belief, so as to be prejudiced if the former is
permitted to deny the existence of those facts.46 Such a
situation obtains in the instant case.
Second, the action is barred by laches. The petitioner
allegedly discovered that the property was being
possessed by the respondent in 1980.47 However, it was
only in 1997 that she filed the action to recover the
property. Laches is negligence or omission to assert a
right within a reasonable time, warranting a presumption
that the party entitled to it has either abandoned or
declined to assert it.48
Finally, the respondent asserts that the court a quo
ought to have dismissed the complaint for failure to
implead the other heirs who are indispensable parties.
We agree. We note that the complaint filed by the
petitioner sought to recover ownership, not just
possession of the property; thus, the suit is in the nature
of an action for reconveyance. It is axiomatic that owners
of property over which reconveyance is asserted are
indispensable parties. Without them being impleaded, no
relief is available, for the court cannot render valid
judgment. Being indispensable parties, their absence in
the suit renders all subsequent actions of the trial court
null and void for want of authority to act, not only as to
the absent parties but even as to those present. Thus,
when indispensable parties are not before the court, the
action should be dismissed.49 At any rate, a resolution of
this issue is now purely academic in light of our finding
that the complaint is already barred by prescription,
estoppel and laches.
WHEREFORE, premises considered, the petition is
DENIED. The Decision of the Court of Appeals, dated
September 7, 2000, and Resolution dated May 9, 2001,
are AFFIRMED.
G.R. No. 58010. March 31, 1993.
EMILIA O'LACO and HUCO LUNA, petitioners, vs.
VALENTIN CO CHO CHIT, O LAY KIA and COURT OF
APPEALS, respondents.
Sergio L. Guadiz for petitioners.
Norberto J . Quisumbing & Associates for private
respondents.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; ACTIONS;
CONDITION PRECEDENT TO FILING OF SUIT
BETWEEN MEMBERS OF THE SAME FAMILY;
EFFECT OF FAILURE TO COMPLY WITH CONDITION.
— Admittedly, the present action is between members of
the same family since petitioner Emilia O'Laco and
respondent O Lay Kia are half-sisters. Consequently,
there should be an averment in the compliant that
earnest efforts toward a compromise have been made,
pursuant to Art. 222 of the New Civil Code, or a motion
to dismiss could have been filed under Sec. 1, par. (j),
Rule 16 of the Rules of Court. For, it is well-settled that
the attempt to compromise as well as the inability to
succeed is a condition precedent to the filing of a suit
between members of the same family. Hence, the defect
in the complaint is assailable at any stage of the
proceedings, even on appeal, for lack of cause of action.
2. ID.; ID.; AMENDMENT TO COMPLAINT; WHEN
PROPER; AMENDMENT TO CONFORM TO
EVIDENCE. — Plaintiff may be allowed to amend his
complaint to correct the defect if the amendment does
not actually confer jurisdiction on the court in which the
action is filed, i.e., if the cause of action was originally
within that court's jurisdiction. In such case, the
amendment is only to cure the perceived defect in the
complaint, thus may be allowed. In the case before Us,
while respondent-spouses did not formally amend their
complaint, they were nonetheless allowed to introduce
evidence purporting to show that earnest efforts toward a
compromise had been made, that is, respondent O Lay
Kia importuned Emilia O'Laco and pressed her for the
transfer of the title of the Oroquieta property in the name
of spouses O Lay Kia and Valentin Co Cho Chit, just
before Emilia's marriage to Hugo Luna. But, instead of
transferring the title as requested, Emilia sold the
property to the Roman Catholic Archbishop of Manila.
This testimony was not objected to by petitioner-
spouses. Hence, the complaint was deemed accordingly
amended to conform to the evidence, pursuant to Sec. 5,
Rule 10 of the Rules of Court which reads — "Sec. 5.
Amendment to conform to or authorize presentation of
evidence. — When issues not raised by the pleadings
are tried by express or implied consent of the parties,
they shall be treated in all respects, as if they had been
raised in the pleadings . . ." Indeed, if the defendant
permits evidence to be introduced without objection and
which supplies the necessary allegations of a defective
complaint, then the evidence is deemed to have the
effect of curing the defects of the complaint. The
insufficiency of the allegations in the complaint is
deemed ipso facto rectified.
3. CIVIL LAW; OBLIGATIONS AND CONTRACTS;
TRUSTS; EXPRESS TRUST; DEFINED; IMPLIED
TRUST; DEFINED. — By definition, trust relations
between parties may either be express or implied.
Express trusts are those which are created by the direct
and positive acts of the parties, by some writing or deed,
or will, or by words evincing an intention to create a trust.
Implied trusts are those which, without being express,
are deducible from the nature of the transaction as
matters of intent, or which are superinduced on the
transaction by operation of law as matters of equity,
independently of the particular intention of the parties.
4. ID.; ID.; ID.; IMPLIED TRUSTS; RESULTING TRUST;
BASIS THEREOF; CONSTRUCTIVE TRUST; BASIS
THEREOF. — Implied trust may either be resulting or
constructive trusts, both coming into being by operation
of law. Resulting trusts are based on the equitable
doctrine that valuable consideration and not legal title
determines the equitable title or interest and are
presumed always to have been contemplated by the
parties. They arise from the nature or circumstances of
the consideration involved in a transaction whereby one
person thereby becomes invested with legal title but is
obligated in equity to hold his legal title for the benefit of
another. On the other hand, constructive trusts are
created by the construction of equity in order to satisfy
the demands of justice and prevent unjust enrichment.
They arise contrary to intention against one who, by
fraud, duress or abuse of confidence, obtains or holds
the legal right to property which he ought not, in equity
and good conscience, to hold.
5. ID.; ID.; ID.; EXPRESS TRUSTS CONCERNING
IMMOVABLES NOT PROVED BY PAROL EVIDENCE;
IMPLIED TRUST IN REAL PROPERTY ESTABLISHED
BY PAROL EVIDENCE; PROOF REQUIRED; CASE AT
BAR. — Unlike express trusts concerning immovables or
any interest therein which cannot be proved by parol
evidence, implied trusts may be established by oral
evidence. However, in order to establish an implied trust
in real property by parol evidence, the proof should be as
fully convincing as if the acts giving rise to the trust
obligation were proven by an authentic document. It
cannot be established upon vague and inconclusive
proof. After a thorough review of the evidence on record,
We hold that a resulting trust was indeed intended by the
parties under Art. 1448 of the New Civil Code which
states — "Art. 1448. There is an implied trust when
property is sold, and the legal estate is granted to one
party but the price is paid by another for the purpose of
having the beneficial interest of the property. The former
is the trustee, while the latter is the beneficiary . . ." As
stipulated by the parties, the document of sale, the
owner's duplicate copy of the certificate of title,
insurance policies, receipt of initial premium of insurance
coverage and real estate tax receipts were all in the
possession of respondent-spouses which they offered in
evidence. As emphatically asserted by respondent O Lay
Kia, the reason why these documents of ownership
remained with her is that the land in question belonged
to her. Indeed, there can be no persuasive rationalization
for the possession of these documents of ownership by
respondent-spouses for seventeen (17) years after the
Oroquieta property was purchased in 1943 than that of
precluding its possible sale, alienation or conveyance by
Emilia O'Laco, absent any machination or fraud. This
continued possession of the documents, together with
other corroborating evidence spread on record, strongly
suggests that Emilia O'Laco merely held the Oroquieta
property in trust for respondent-spouses.
6. ID.; ID.; ID.; CONSTRUCTIVE TRUST SUBJECT TO
PRESCRIPTION; RESULTING TRUST
IMPRESCRIPTIBLE; RESULTING TRUST
CONVERTED TO CONSTRUCTIVE TRUST BY
REPUDIATION; REQUISITES; PRESCRIPTIVE
PERIOD FOR ACTION FOR RECONVEYANCE BASED
ON CONSTRUCTIVE TRUST. — As differentiated from
constructive trusts, where the settled rule is that
prescription may supervene, in resulting trust, the rule of
imprescriptibility may apply for as long as the trustee has
not repudiated the trust. Once the resulting trust is
repudiated, however, it is converted into a constructive
trust and is subject to prescription. A resulting trust is
repudiated if the following requisites concur: (a) the
trustee has performed unequivocal acts of repudiation
amounting to an ouster of the cestui qui trust; (b) such
positive acts of repudiation have been made known to
the cestui qui trust; and, (c) the evidence thereon is clear
and convincing. In Tale v. Court of Appeals the Court
categorically ruled that an action for reconveyance
based on an implied or constructive trust must perforce
prescribe in ten (10) years, and not otherwise, thereby
modifying previous decisions holding that the
prescriptive period was four (4) years. So long as the
trustee recognizes the trust, the beneficiary may rely
upon the recognition, and ordinarily will not be in fault for
omitting to bring an action to enforce his rights. There is
no running of the prescriptive period if the trustee
expressly recognizes the resulting trust. Since the
complaint for breach of trust was filed by respondent-
spouses two (2) months after acquiring knowledge of the
sale, the action therefore has not yet prescribed.
DECISION
BELLOSILLO, J p:
History is replete with cases of erstwhile close family
relations put asunder by property disputes. This is one of
them. It involves half-sisters each claiming ownership
over a parcel of land. While petitioner Emilia O'Laco
asserts that she merely left the certificate of title covering
the property with private respondent O Lay Kia for
safekeeping, the latter who is the former's older sister
insists that the title was in her possession because she
and her husband bought the property from their conjugal
funds. To be resolved therefore is the issue of whether a
resulting trust was intended by them in the acquisition of
the property. The trial court declared that there was no
trust relation of any sort between the sisters. 1 The Court
of Appeals ruled otherwise. 2 Hence, the instant petition
for review on certiorari of the decision of the appellate
court together with its resolution denying
reconsideration. 3
It appears that on 31 May 1943, the Philippine Sugar
Estate Development Company, Ltd., sold a parcel of
land, Lot No. 5, Block No. 10, Plan Psu-10038, situated
at Oroquieta St., Sta. Cruz, Manila, with the Deed of
Absolute Sale naming Emilia O'Laco as vendee;
thereafter, Transfer Certificate of Title No. 66456 was
issued in her name.
On 17 May 1960, private respondent-spouses Valentin
Co Cho Chit and O Lay Wa learned from the
newspapers that Emilia O'Laco sold the same property
to the Roman Catholic Archbishop of Manila for
P230,000.00, with assumption of the real estate
mortgage constituted thereon. 4
On 22 June 1960, respondent-spouses Valentin Co Cho
Chit and O Lay Kia sued petitioner-spouses Emilia
O'Laco and Hugo Luna to recover the purchase price of
the land before the then Court of First Instance of Rizal,
respondent-spouses asserting that petitioner Emilia
O'Laco knew that they were the real vendees of the
Oroquieta property sold in 1943 by Philippine Sugar
Estate Development Company, Ltd., and that the legal
title thereto was merely placed in her name. They
contend that Emilia O'Laco breached the trust when she
sold the land to the Roman Catholic Archbishop of
Manila. Meanwhile, they asked the trial court to garnish
all the amounts still due and payable to petitioner-
spouses arising from the sale, which was granted on 30
June 1960. 5
Petitioner-spouses deny the existence of any form of
trust relation. They aver that Emilia O'Laco actually
bought the property with her own money; that she left the
Deed of Absolute Sale and the corresponding title with
respondent-spouses merely for safekeeping; that when
she asked for the return of the documents evidencing
her ownership, respondent-spouses told her that these
were misplaced or lost; and, that in view of the loss, she
filed a petition for issuance of a new title, and on 18
August 1944 the then Court of First Instance of Manila
granted her petition.
On 20 September 1976, finding no trust relation between
the parties, the trial court dismissed the complaint
together with the counterclaim. Petitioners and
respondents appealed.
On 9 April 1981, the Court of Appeals set aside the
decision of the trial court thus —
". . . We set aside the decision of the lower court dated
September 20, 1976 and the order of January 5, 1977
and another one is hereby entered ordering the
defendants-appellees to pay plaintiffs-appellants jointly
and severally the sum of P230,000.00 representing the
value of the property subject of the sale with assumption
of mortgage to the Roman Catholic Archbishop of Manila
with legal interest from the filing of the complaint until
fully paid, the sum of P10,000.00 as attorney's fees, plus
costs."
On 7 August 1981, the Court of Appeals denied
reconsideration of its decision, prompting petitioners to
come to this Court for relief.
Petitioners contend that the present action should have
been dismissed. They argue that the complaint fails to
allege that earnest efforts toward a compromise were
exerted considering that the suit is between members of
the same family, and no trust relation exists between
them. Even assuming ex argumenti that there is such a
relation, petitioners further argue, respondents are
already barred by laches.
We are not persuaded. Admittedly, the present action is
between members of the same family since petitioner
Emilia O'Laco and respondent O Lay Kia are half-sisters.
Consequently, there should be an averment in the
complaint that earnest efforts toward a compromise have
been made, pursuant to Art. 222 of the New Civil Code,
6 or a motion to dismiss could have been filed under
Sec. 1, par. (j), Rule 16, of the Rules of Court. 7 For, it is
well-settled that the attempt to compromise as well as
the inability to succeed is a condition precedent to the
filing of a suit between members of the same family. 8
Hence, the defect in the complaint is assailable at any
stage of the proceedings, even on appeal, for lack of
cause of action. 9
But, plaintiff may be allowed to amend his complaint to
correct the defect if the amendment does not actually
confer jurisdiction on the court in which the action is filed,
i.e., if the cause of action was originally within that
court's jurisdiction. 10 In such case, the amendment is
only to cure the perceived defect in the complaint, thus
may be allowed.
In the case before Us, while respondent-spouses did not
formally amend their complaint, they were nonetheless
allowed to introduce evidence purporting to show that
earnest efforts toward a compromise had been made,
that is, respondent O Lay Kia importuned Emilia O'Laco
and pressed her for the transfer of the title of the
Oroquieta property in the name of spouses O Lay Kia
and Valentin Co Cho Chit, just before Emilia's marriage
to Hugo Luna. 11 But, instead of transferring the title as
requested, Emilia sold the property to the Roman
Catholic Archbishop of Manila. This testimony was not
objected to by petitioner-spouses. Hence, the complaint
was deemed accordingly amended to conform to the
evidence, 12 pursuant to Sec. 5, Rule 10 of the Rules of
Court which reads —
"SECTION 5. Amendment to conform to or authorize
presentation of evidence. — When issues not raised by
the pleadings are tried by express or implied consent of
the parties, they shall be treated in all respects, as, if
they had been raised in the pleadings . . ." (emphasis
supplied).
Indeed, if the defendant permits evidence to be
introduced without objection and which supplies the
necessary allegations of a defective complaint, then the
evidence is deemed to have the effect of curing the
defects of the complaint. 13 The insufficiency of the
allegations in the complaint is deemed ipso facto
rectified. 14
But the more crucial issue before Us is whether there is
a trust relation between the parties in contemplation of
law.
We find that there is. By definition, trust relations
between parties may either be express or implied. 15
Express trusts are those which are created by the direct
and positive acts of the parties, by some writing or deed,
or will, or by words evincing an intention to create a trust.
16 Implied trusts are those which, without being express,
are deducible from the nature of the transaction as
matters of intent, or which are superinduced on the
transaction by operation of law as matters of equity,
independently of the particular intention of the parties.17
Implied trusts may either be resulting or constructive
trusts, both coming into being by operation of law. 18
Resulting trusts are based on the equitable doctrine that
valuable consideration and not legal title determines the
equitable title or interest 19 and are presumed always to
have been contemplated by the parties. They arise from
the nature or circumstances of the consideration
involved in a transaction whereby one person thereby
becomes invested with legal title but is obligated in
equity to hold his legal title for the benefit of another. 20
On the other hand, constructive trusts are created by the
construction of equity in order to satisfy the demands of
justice 21 and prevent unjust enrichment. They arise
contrary to intention against one who, by fraud, duress or
abuse of confidence, obtains or holds the legal right to
property which he ought not, in equity and good
conscience, to hold. 22
Specific examples of resulting trusts may be found in the
Civil Code, particularly Arts. 1448, 1449, 1451,1452 and
1453, 23 while constructive trusts are illustrated in Arts.
1450, 1454, 1455 and 1456. 24
Unlike express trusts concerning immovables or any
interest therein which cannot be proved by parol
evidence, 25 implied trusts may be established by oral
evidence. 26 However, in order to establish an implied
trust in real property by parol evidence, the proof should
be as fully convincing as if the acts giving rise to the trust
obligation were proven by an authentic document. 27 It
cannot be established upon vague and inconclusive
proof. 28
After a thorough review of the evidence on record, We
hold that a resulting trust was indeed intended by the
parties under Art. 1448 of the New Civil Code which
states —
"ARTICLE 1448. There is an implied trust when property
is sold, and the legal estate is granted to one party but
the price is paid by another for the purpose of having the
beneficial interest of the property. The former is the
trustee, while the latter is the beneficiary . . ." (emphasis
supplied).
First. As stipulated by the parties, the document of sale,
the owner's duplicate copy of the certificate of title,
insurance policies, receipt of initial premium of insurance
coverage and real estate tax receipts ware all in the
possession of respondent spouses which they offered in
evidence. As emphatically asserted by respondent O Lay
Kia, the reason why these documents of ownership
remained with her is that the land in question belonged
to her. 29
Indeed, there can be no persuasive rationalization for the
possession of these documents of ownership by
respondent-spouses for seventeen (17) years after the
Oroquieta property was purchased in 1943 than that of
precluding its possible sale, alienation or conveyance by
Emilia O'Laco, absent any machination or fraud. This
continued possession of the documents, together with
other corroborating evidence spread on record, strongly
suggests that Emilia O'Laco merely held the Oroquieta
property in trust for respondent-spouses.
Second. It may be worth to mention that before buying
the Oroquieta property, respondent-spouses purchased
another property situated in Kusang-Loob, Sta. Cruz,
Manila, where the certificate of title was placed in the
name of Ambrosio O'Laco, older brother of Emilia, under
similar or identical circumstances. The testimony of
former counsel for respondent-spouses, then Associate
Justice Antonio G. Lucero of the Court of Appeals, is
enlightening —
"Q In the same conversation he told you how he would
buy the property (referring to the Oroquieta property), he
and his wife?
"A Yes, Sir, he did.
"Q What did he say?
xxx xxx xxx
"A He said he and his wife has (sic) already acquired by
purchase a certain property located at Kusang-Loob,
Sta. Cruz, Manila. He told me he would like to place the
Oroquieta Maternity Hospital in case the negotiation
materialize(s) in the name of a sister of his wife
(O'Laco)" (emphasis supplied). 30
On the part of respondent-spouses, they explained that
the reason why they did not place these Oroquieta and
Kusang-Loob properties in their name was that being
Chinese nationals at the time of the purchase they did
not want to execute the required affidavit to the effect
that they were allies of the Japanese. 31 Since O Lay
Kia took care of Emilia who was still young when her
mother died, 32 respondent-spouses did not hesitate to
place the title of the Oroquieta property in Emilia's name.
Quite significantly, respondent-spouses also instituted an
action for reconveyance against Ambrosio O'Laco when
the latter claimed the Kusang-Loob property as his own.
A similar stipulation of facts was likewise entered, i.e.,
respondent-spouses had in their possession documents
showing ownership of the Kusang-Loob property which
they offered in evidence. In that case, the decision of the
trial court, now final and executory, declared respondent-
spouses as owners of the Kusang-Loob property and
ordered Ambrosio O'Laco to reconvey it to them. 33
Incidentally, Ambrosio O'Laco thus charged respondent
spouses Valentin Co Cho Cit and O Lay Kia before the
Anti-Dummy Board, docketed as Case No. 2424, for
their acquisition of the Kusang-Loob and Oroquieta
properties. 34 He claimed that respondent-spouses
utilized his name in buying the Kusang-Loob property
while that of petitioner O'Laco was used in the purchase
of the Oroquieta property. In effect, there was an implied
admission by Ambrosio that his sister Emilia, like him,
was merely used as a dummy. However, the Anti-
Dummy Board exonerated respondent-spouses since
the purchases were made in 1943, or during World War
II, when the Anti-Dummy Law was not enforceable.
Third. The circumstances by which Emilia O'Laco
obtained a new title by reason of the alleged loss of the
old title then in the possession of respondent-spouses
cast serious doubt on the veracity of her ownership. The
petitions respectively filed by Emilia O'Laco and
Ambrosio O'Laco for the Oroquieta and the Kusang-
Loob properties were both granted on the same day, 18
August 1944, by the then Court of First Instance of
Manila. These orders were recorded in the Primary Entry
Book of the Register of Deeds of Manila at the same
time, 2:35 o'clock in the afternoon of 1 September 1944,
in consecutive entries, Entries Nos. 246117-18. 35 This
coincidence lends credence to the position of
respondent-spouses that there was in fact a conspiracy
between the siblings Ambrosio and Emilia to defraud and
deprive respondents of their title to the Oroquieta and
Kusang-Loob properties.
Fourth. Until the sale of the Oroquieta property to the
Roman Catholic Archbishop of Manila, petitioner Emilia
O'Laco actually recognized the trust. Specifically, when
respondent spouses learned that Emilia was getting
married to Hugo, O Lay Kia asked her to have the title to
the property already transferred to her and her husband
Valentin, and Emilia assured her that "would be
arranged (maaayos na)" after her wedding. 36 Her
answer was an express recognition of the trust,
otherwise, she would have refused the request outright.
Petitioners never objected to this evidence; nor did they
attempt to controvert it.
Fifth. The trial court itself determined that "Valentin Co
Cho Chit and O Lay Kia had some money with which
they could buy the property." 37 In fact, Valentin was the
Chief Mechanic of the Paniqui Sugar Mills, was engaged
in the buy and sell business, operated a gasoline station,
and owned an auto supply store as well as a ten-door
apartment in Caloocan City. 38 In contrast, Emilia
O'Laco failed to convince the Court that she was
financially capable of purchasing the Oroquieta property.
In fact, she opened a bank account only in 1946 and
likewise began filing income tax returns that same year,
39 while the property in question was bought in 1943.
Respondent-spouses even helped Emilia and her
brothers in their expenses and livelihood. Emilia could
only give a vague account on how she raised the money
for the purchase of the property. Her narration of the
transaction of sale abounds with "I don't know" and "I
don't remember." 40
Having established a resulting trust between the parties,
the next question is whether prescription has set in.
As differentiated from constructive trusts, where the
settled rule is that prescription may supervene, in
resulting trust, the rule of imprescriptibility may apply for
as long as the trustee has not repudiated the trust. 41
Once the resulting trust is repudiated, however, it is
converted into a constructive trust and is subject to
prescription.
A resulting trust is repudiated if the following requisites
concur: (a) the trustee has performed unequivocal acts
of repudiation amounting to an ouster of the cestui qui
trust; (b) such positive acts of repudiation have been
made known to the cestui qui trust; and, (c) the evidence
thereon is clear and convincing. 42
In Tale v. Court of Appeals 43 the Court categorically
ruled that an action for reconveyance based on an
implied or constructive trust must perforce prescribe in
ten (10) years, and not otherwise, thereby modifying
previous decisions holding that the prescriptive period
was four (4) years.
Neither the registration of the Oroquieta property in the
name of petitioner Emilia O'Laco nor the issuance of a
new Torrens title in 1944 in her name in lieu of the
alleged loss of the original may be made the basis for
the commencement of the prescriptive period. For, the
issuance of the Torrens title in the name of Emilia
O'Laco could not be considered adverse, much less
fraudulent. Precisely, although the property was bought
by respondent-spouses, the legal title was placed in the
name of Emilia O'Laco. The transfer of the Torrens title
in her name was only in consonance with the deed of
sale in her favor. Consequently, there was no cause for
any alarm on the part of respondent-spouses. As late as
1959, or just before she got married, Emilia continued to
recognize the ownership of respondent-spouses over the
Oroquieta property. Thus, until that point, respondent-
spouses were not aware of any act of Emilia which
would convey to them the idea that she was repudiating
the resulting trust. The second requisite is therefore
absent. Hence, prescription did not begin to run until the
sale of the Oroquieta property, which was clearly an act
of repudiation.
But immediately after Emilia sold the Oroquieta property
which is obviously a disavowal of the resulting trust,
respondent-spouses instituted the present suit for breach
of trust. Correspondingly, laches cannot lie against them.
After all, so long as the trustee recognizes the trust, the
beneficiary may rely upon the recognition, and ordinarily
will not be in fault for omitting to bring an action to
enforce his rights. 44 There is no running of the
prescriptive period if the trustee expressly recognizes the
resulting trust. 45 Since the complaint for breach of trust
was filed by respondent-spouses two (2) months after
acquiring knowledge of the sale, the action therefore has
not yet prescribed.
G.R. No. 189647               February 6, 2012
NANCY T. LORZANO, Petitioner,  Iriga and Naga.
vs.
JUAN TABAYAG, JR., Respondent.
DECISION
REYES, J.:
Nature of the Petition
This is a petition for review on certiorari under Rule 45 of
the Rules of Court filed by Nancy T. Lorzano (petitioner)
assailing the Court of Appeals (CA) Decision1 dated
March 18, 2009 and Resolution2 dated September 16,
2009 in CA-G.R. CV No. 87762 entitled "Juan Tabayag,
Jr. v. Nancy T. Lorzano."
The Antecedent Facts
The instant case stemmed from an amended
complaint3 for annulment of document and reconveyance
filed by Juan Tabayag, Jr. (respondent) against the
petitioner, docketed as Civil Case No. Ir-3286, with the
Regional Trial Court (RTC) of Iriga City.
The petitioner and the respondent are two of the children
of the late Juan Tabayag (Tabayag) who died on June 2,
1992. Tabayag owned a parcel of land situated in Sto.
Domingo, Iriga City (subject property). Right after the
burial of their father, the petitioner allegedly requested
from her siblings that she be allowed to take possession
of and receive the income generated by the subject
property until after her eldest son could graduate from
college. The petitioner’s siblings acceded to the said
request.
After the petitioner’s eldest son finished college, her
siblings asked her to return to them the possession of
the subject property so that they could partition it among
themselves. However, the petitioner refused to relinquish
her possession of the subject property claiming that she
purchased the subject property from their father as
evidenced by a Deed of Absolute Sale of Real
Property4 executed by the latter on May 25, 1992.
The respondent claimed that their father did not execute
the said deed of sale. He pointed out that the signature
of their father appearing in the said deed of sale was a
forgery as the same is markedly different from the real
signature of Tabayag.
Further, the respondent asserted that the said deed of
sale was acknowledged before a person who was not a
duly commissioned Notary Public. The deed of sale was
acknowledged by the petitioner before a certain Julian P.
Cabañes (Cabañes) on May 25, 1992 at Iriga City.
However, as per the Certification5 issued by the Office of
the Clerk of Court of the RTC on May 16, 2002, Cabañes
has never been commissioned as a Notary Public for
and in the Province of Camarines Sur and in the Cities of
The respondent alleged that the petitioner purposely
forged the signature of Tabayag in the said deed of sale
to deprive him and their other siblings of their share in
the subject property. He then averred that the subject
property was already covered by Original Certificate of
Title (OCT) No. 17866 issued by the Register of Deeds of
Iriga City on January 9, 2001 registered under the name
of the petitioner. OCT No. 1786 was issued pursuant to
Free Patent No. 051716 which was procured by the
petitioner on June 24, 1996.
For her part, the petitioner maintained she is the owner
of the subject parcel of land having purchased the same
from Tabayag as evidenced by the May 25, 1992 deed
of sale. Further, the petitioner asserted that the
respondent failed to establish that the signature of
Tabayag appearing on the said deed of sale was a
forgery considering that it was not submitted for
examination by a handwriting expert.
The RTC Decision
On April 28, 2006, the RTC rendered an Amended
Decision7 the decretal portion of which reads:
WHEREFORE, Judgment is hereby rendered[:]
a. Declaring the supposed Deed of Sale null and
void and of no legal effect;
b. Ordering the [petitioner] to reconvey to the
heirs of the late Juan Tabayag, Sr. the land
subject matter of this case[;]
c. Declaring the property described in the
complaint and in the spurious deed of sale to be
 owned in common by the heirs of Juan Tabayag, In his Comment,10 the respondent claimed that the issues
Sr. as part of their inheritance from said Juan raised in the instant petition are factual in nature and,
Tabayag, Sr[.]; hence, could not be passed upon by this Court in a
petition for review on certiorari under Rule 45. Likewise,
d. Ordering [petitioner] to pay plaintiff the sum of the respondent asserted that the petitioner’s free patent,
One Hundred Thousand Pesos (P100,000.00)by having been issued on the basis of a falsified document,
way of moral damages; does not create a right over the subject property in her
favor.
e. Ordering defendant to pay plaintiff the
attorney’s fees in the sum of Fifteen Thousand Issues
Pesos (P15,000.00), based on quantum meruit;
In sum, the threshold issues for resolution are the
f. Dismissing the counterclaim for lack of merit[;] following: (a) whether the lower courts erred in declaring
the May 25, 1992 deed of sale a nullity; (b) whether an
action for reconveyance is proper in the instant case;
g. Costs against the defendant.
and (c) whether the respondent is entitled to an award of
moral damages and attorney’s fees.
SO ORDERED.8 
The Court’s Ruling
The RTC opined that a cursory comparison between the
signature of Tabayag appearing on the said deed of sale
First and Third Issues: Nullity of the Deed of Sale and
and his signatures appearing on other documents would
Award of Moral Damages and Attorney’s Fees
clearly yield a conclusion that the former was indeed a
forgery. Moreover, the RTC asserted that the nullity of
the said May 25, 1992 deed of sale all the more This Court shall jointly discuss the first and third issues
becomes glaring considering that the same was as the resolution of the same are interrelated.
purportedly acknowledged before a person who is not a
duly commissioned Notary Public. Primarily, Section 1, Rule 45 of the Rules of Court
categorically states that the petition filed shall raise only
The CA Decision questions of law, which must be distinctly set forth. A
question of law arises when there is doubt as to what the
law is on a certain state of facts, while there is a question
Thereafter, the petitioner appealed the decision with the
of fact when the doubt arises as to the truth or falsity of
CA. On March 18, 2009, the CA rendered the assailed
the alleged facts. For a question to be one of law, the
decision affirming in toto the RTC decision.9 The CA held
same must not involve an examination of the probative
that the testimony of a handwriting expert in this case is
value of the evidence presented by the litigants or any of
not indispensable as the similarity and dissimilarity
them. The resolution of the issue must rest solely on
between the questioned signature of Tabayag as
what the law provides on the given set of circumstances.
compared to other signatures of the latter in other
Once it is clear that the issue invites a review of the
documents could be determined by a visual comparison.
evidence presented, the question posed is one of fact.11 
Further, the CA upheld the award of moral damages and
That the signature of Tabayag in the May 25, 1992 deed
attorney’s fees in favor of the respondent as the
of sale was a forgery is a conclusion derived by the RTC
petitioner’s conduct caused "great concern and anxiety"
and the CA on a question of fact. The same is conclusive
to the respondent and that the latter had to go to court
upon this Court as it involves the truth or falsehood of an
and retain the services of counsel to pursue his rights
alleged fact, which is a matter not for this Court to
and protect his interests.
resolve.12 Where a petitioner casts doubt on the findings
of the lower court as affirmed by the CA regarding the
Undaunted, the petitioner instituted the instant petition existence of forgery is a question of fact.13 
for review on certiorari before this Court asserting the
following: (1) the questioned signature of Tabayag in the
In any case, the CA aptly ruled that a handwriting expert
May 25, 1992 deed of sale could not be declared
is not indispensable to prove that the signature of
spurious unless first examined and declared to be so by
Tabayag in the questioned deed of sale was indeed a
a handwriting expert; (2) considering that the subject
forgery. It is true that the opinion of handwriting experts
property was registered under the petitioner’s name
are not necessarily binding upon the court, the expert’s
pursuant to a free patent, reconveyance of the same in
function being to place before the court data upon which
favor of the respondent is improper since only the
the court can form its own opinion. Handwriting experts
Government, through the Office of the Solicitor General
are usually helpful in the examination of forged
(OSG), could assail her title thereto in an action for
documents because of the technical procedure involved
reversion; and (3) the respondent is not entitled to an
in analyzing them. But resort to these experts is not
award for moral damages and attorney’s fees.
mandatory or indispensable to the examination or the
comparison of handwriting. A finding of forgery does not
depend entirely on the testimonies of handwriting
experts, because the judge must conduct an
independent examination of the questioned signature in
order to arrive at a reasonable conclusion as to its
authenticity.14  Simply put, the petitioner points out that the subject
For the same reason, we would ordinarily disregard the
petitioner’s allegation as to the propriety of the award of
moral damages and attorney’s fees in favor of the
respondent as it is a question of fact. Thus, questions on
whether or not there was a preponderance of evidence
to justify the award of damages or whether or not there
was a causal connection between the given set of facts
and the damage suffered by the private complainant or
whether or not the act from which civil liability might arise
exists are questions of fact.15 
Essentially, the petitioner is questioning the award of
moral damages and attorney’s fees in favor of the
respondent as the same is supposedly not fully
supported by evidence. However, in the final analysis,
the question of whether the said award is fully supported
by evidence is a factual question as it would necessitate
whether the evidence adduced in support of the same
has any probative value. For a question to be one of law,
it must involve no examination of the probative value of
the evidence presented by the litigants or any of them.16  this rule. Any issue raised for the first time on appeal is
Nevertheless, a review of the amount of moral damages
actually awarded by the lower courts in favor of the
respondent is necessary.
Here, the lower courts ordered the petitioner to pay the
respondent moral damages in the amount of
₱100,000.00. We find the said amount to be excessive.
Moral damages are not intended to enrich the
complainant at the expense of the defendant. Rather,
these are awarded only to enable the injured party to
obtain "means, diversions or amusements" that will
serve to alleviate the moral suffering that resulted by
reason of the defendant’s culpable action. The purpose
of such damages is essentially indemnity or reparation,
not punishment or correction. In other words, the award
thereof is aimed at a restoration within the limits of the
possible, of the spiritual status quo ante;  therefore, it
must always reasonably approximate the extent of injury
and be proportional to the wrong committed.17  the subject property is already indefeasible and, hence,
Accordingly, the amount of moral damages must be
reduced to ₱30,000.00, an amount reasonably
commensurate to the injury sustained by the respondent.
Second Issue: Propriety of the Reconveyance of the
Subject Property to the Heirs of the late Juan Tabayag
The petitioner asserted that the CA erred in not finding
that her ownership over the subject property was by
virtue of a free patent issued by the government and,
thus, even assuming that the subject deed of sale is
invalid, her title and ownership of the subject property
cannot be divested or much less ordered reconveyed to
the heirs of Tabayag.
property, being acquired by her through a grant of free
patent from the government, originally belonged to the
public domain. As such, the lower courts could not order
the reconveyance of the subject property to the heirs of
Tabayag as the latter are not the original owners thereof.
If at all, the subject property could only be ordered
reverted to the public domain.
An issue cannot be raised for the first time on appeal as
it is already barred by estoppel.
This Court notes that the foregoing argument is being
raised by the petitioner for the first time in the instant
petition. It is well-settled that no question will be
entertained on appeal unless it has been raised in the
proceedings below. Points of law, theories, issues and
arguments not brought to the attention of the lower
court, administrative agency or quasi-judicial
body, need not be considered by a reviewing court, as
they cannot be raised for the first time at that late stage.
Basic considerations of fairness and due process impel
barred by estoppel.18 
Accordingly, the petitioner’s attack on the propriety of the
action for reconveyance in this case ought to be
disregarded. However, in order to obviate any lingering
doubt on the resolution of the issues involved in the
instant case, this Court would proceed to discuss the
cogency of the petitioner’s foregoing argument.
Title emanating from a free patent fraudulently secured
does not become indefeasible.
The petitioner asserts that the amended complaint for
annulment of document, reconveyance and damages
that was filed by the respondent with the RTC is a
collateral attack on her title over the subject property.
She avers that, when the said amended compliant was
filed, more than a year had already lapsed since OCT
No. 1786 over the subject property was issued under her
name. Thus, the petitioner maintains that her title over
could not be attacked collaterally.
We do not agree.
A Free Patent may be issued where the applicant is a
natural-born citizen of the Philippines; is not the owner of
more than twelve (12) hectares of land; has continuously
occupied and cultivated, either by himself or through his
predecessors-in-interest, a tract or tracts of agricultural
public land subject to disposition, for at least 30 years
prior to the effectivity of Republic Act No. 6940; and has
paid the real taxes thereon while the same has not been
occupied by any person.19  explained the reason for the rule that only the
Once a patent is registered and the corresponding
certificate of title is issued, the land covered thereby
ceases to be part of public domain and becomes private
property, and the Torrens Title issued pursuant to the
patent becomes indefeasible upon the expiration of one
year from the date of such issuance.20 However, a title
emanating from a free patent which was secured through
fraud does not become indefeasible, precisely because
the patent from whence the title sprung is itself void and
of no effect whatsoever.21  annulment should have been initiated by him, or at least
On this point, our ruling in Republic v. Heirs of Felipe
Alejaga, Sr.22 is instructive:
True, once a patent is registered and the corresponding
certificate of title [is] issued, the land covered by them
ceases to be part of the public domain and becomes
private property. Further, the Torrens Title issued
pursuant to the patent becomes indefeasible a year after
the issuance of the latter. However, this indefeasibility of
a title does not attach to titles secured by fraud and
misrepresentation. Well-settled is the doctrine that the
registration of a patent under the Torrens System does
not by itself vest title; it merely confirms the registrant’s
already existing one. Verily, registration under the
Torrens System is not a mode of acquiring
ownership.23 (citations omitted)
A fraudulently acquired free patent may only be assailed
by the government in an action for reversion.
Nonetheless, a free patent that was fraudulently
acquired, and the certificate of title issued pursuant to
the same, may only be assailed by the government in an
action for reversion pursuant to Section 101 of the Public
Land Act.24 In Sherwill Development Corporation v. Sitio
Sto. Niño Residents Association, Inc.,25 this Court
pointed out that:
It is also to the public interest that one who succeeds in
fraudulently acquiring title to a public land should not be
allowed to benefit therefrom, and the State should,
therefore, have an even existing authority, thru its duly-
authorized officers, to inquire into the circumstances
surrounding the issuance of any such title, to the end
that the Republic, thru the Solicitor General or any other
officer who may be authorized by law, may file the
corresponding action for the reversion of the land
involved to the public domain, subject thereafter to
disposal to other qualified persons in accordance with
law. In other words, the indefeasibility of a title over land
previously public is not a bar to an investigation by the
Director of Lands as to how such title has been acquired,
if the purpose of such investigation is to determine
whether or not fraud had been committed in securing
such title in order that the appropriate action for
reversion may be filed by the Government.26  et al.,33 we stressed that:
In Kayaban, et al. v. Republic, et al.,27 this Court
government, through the OSG, upon the
recommendation of the Director of Lands, may bring an
action assailing a certificate of title issued pursuant to a
fraudulently acquired free patent:
Since it was the Director of Lands who processed and
approved the applications of the appellants and who
ordered the issuance of the corresponding free patents
in their favor in his capacity as administrator of the
disposable lands of the public domain, the action for
with his prior authority and consent.28 
An action for reconveyance is proper in this case.
However, the foregoing rule is not without an exception.
A recognized exception is that situation where plaintiff-
claimant seeks direct reconveyance from defendant
public land unlawfully and in breach of trust titled by him,
on the principle of enforcement of a constructive trust.29 
A private individual may bring an action for
reconveyance of a parcel of land even if the title thereof
was issued through a free patent since such action does
not aim or purport to re-open the registration proceeding
and set aside the decree of registration, but only to show
that the person who secured the registration of the
questioned property is not the real owner thereof.30 
In Roco, et al. v. Gimeda,31 we stated that if a patent had
already been issued through fraud or mistake and has
been registered, the remedy of a party who has been
injured by the fraudulent registration is an action for
reconveyance, thus:
It is to be noted that the petition does not seek for a
reconsideration of the granting of the patent or of the
decree issued in the registration proceeding. The
purpose is not to annul the title but to have it conveyed
to plaintiffs. Fraudulent statements were made in the
application for the patent and no notice thereof was
given to plaintiffs, nor knowledge of the petition known to
the actual possessors and occupants of the property.
The action is one based on fraud and under the law, it
can be instituted within four years from the discovery of
the fraud. (Art. 1146, Civil Code, as based on Section 3,
paragraph 43 of Act No. 190.) It is to be noted that as the
patent here has already been issued, the land has the
character of registered property in accordance with the
provisions of Section 122 of Act No. 496, as amended by
Act No. 2332, and the remedy of the party who has been
injured by the fraudulent registration is an action for
reconveyance. (Director of Lands vs. Registered of
Deeds, 92 Phil., 826; 49 Off. Gaz. [3] 935; Section 55 of
Act No. 496.)32 
In the same vein, in Quiñiano, et al. v. Court of Appeals,
The controlling legal norm was set forth in succinct
language by Justice Tuason in a 1953 decision, Director
of Lands v. Register of Deeds of Rizal. Thus: "The sole
remedy of the land owner whose property has been
wrongfully or erroneously registered in another's name
is, after one year from the date of the decree, not to set
aside the decree, as was done in the instant case, but,
respecting the decree as incontrovertible and no longer
open to review, to bring an ordinary action in the ordinary
court of justice for reconveyance or, if the property has
passed into the hands of an innocent purchaser for
value, for damages." Such a doctrine goes back to the
1919 landmark decision of Cabanos v. Register of
Deeds of Laguna. If it were otherwise the institution of
registration would, to quote from Justice Torres, serve
"as a protecting mantle to cover and shelter bad
faith ...." In the language of the then Justice, later Chief
Justice, Bengzon: "A different view would encourage
fraud and permit one person unjustly to enrich himself at
the expense of another." It would indeed be a signal
failing of any legal system if under the circumstances
disclosed, the aggrieved party is considered as having
lost his right to a property to which he is entitled. It is one
thing to protect an innocent third party; it is entirely a
different matter, and one devoid of justification, if [deceit]
would be rewarded by allowing the perpetrator to enjoy
the fruits of his nefarious deed. As clearly revealed by
the undeviating line of decisions coming from this Court,
such an undesirable eventuality is precisely sought to be
guarded against. So it has been before; so it should
continue to be.34 (citations omitted)
Here, the respondent, in filing the amended complaint for
annulment of documents, reconveyance and damages,
was not seeking a reconsideration of the granting of the
patent or the decree issued in the registration
proceedings. What the respondent sought was the
reconveyance of the subject property to the heirs of the
late Tabayag on account of the fraud committed by the
petitioner. Thus, the lower courts did not err in upholding
the respondent’s right to ask for the reconveyance of the
subject property. To hold otherwise would be to make
the Torrens system a shield for the commission of fraud.
That the subject property was not registered under the
name of the heirs of Tabayag prior to the issuance of
OCT No. 1786 in the name of the petitioner would not
effectively deny the remedy of reconveyance to the
former. An action for reconveyance is a legal and
equitable remedy granted to the rightful landowner,
whose land was wrongfully or erroneously registered in
the name of another, to compel the registered owner to
transfer or reconvey the land to him.35  dismissed without prejudice the consolidated petitions for
It cannot be gainsaid that the heirs of Tabayag, by
themselves and through their predecessors-in-interest,
had already acquired a vested right over the subject
property. An open, continuous, adverse and public
possession of a land of the public domain from time
immemorial by a private individual personally and
through his predecessors confers an effective title on
said possessors whereby the land ceases to be public,
to become private property, at least by
presumption.36 Hence, the right of the heirs of Tabayag
to ask for the reconveyance of the subject property is
irrefutable.1âwphi1
At this juncture, we deem it necessary to reiterate our
disquisition in Naval v. Court of Appeals,37 thus:
The fact that petitioner was able to secure a title in her
name did not operate to vest ownership upon her of the
subject land. Registration of a piece of land under the
Torrens System does not create or vest title, because it
is not a mode of acquiring ownership. A certificate of title
is merely an evidence of ownership or title over the
particular property described therein. It cannot be used
to protect a usurper from the true owner; nor can it be
used as a shield for the commission of fraud; neither
does it permit one to enrich himself at the expense of
others. Its issuance in favor of a particular person does
not foreclose the possibility that the real property may be
co-owned with persons not named in the certificate, or
that it may be held in trust for another person by the
registered owner.38 (citations omitted)
G.R. Nos. 168992-93               May 21, 2009
IN RE: PETITION FOR ADOPTION OF MICHELLE P.
LIM,
MONINA P. LIM, Petitioner.
x - - - - - - - - - - - - - - - - - - - - - - -x
IN RE: PETITION FOR ADOPTION OF MICHAEL
JUDE P. LIM,
MONINA P. LIM, Petitioner.
DECISION
CARPIO, J.:
The Case
This is a petition for review on certiorari filed by Monina
P. Lim (petitioner) seeking to set aside the
Decision1 dated 15 September 2004 of the Regional Trial
Court, General Santos City, Branch 22 (trial court), in
SPL. PROC. Case Nos. 1258 and 1259, which
adoption of Michelle P. Lim and Michael Jude P. Lim.
The Facts
The following facts are undisputed. Petitioner is an
optometrist by profession. On 23 June 1974, she married
Primo Lim (Lim). They were childless. Minor children,
whose parents were unknown, were entrusted to them
by a certain Lucia Ayuban (Ayuban). Being so eager to
have a child of their own, petitioner and Lim registered
the children to make it appear that they were the
children’s parents. The children2 were named Michelle P.
Lim (Michelle) and Michael Jude P. Lim (Michael).
Michelle was barely eleven days old when brought to the
clinic of petitioner. She was born on 15 March
1977.3 Michael was 11 days old when Ayuban brought
him to petitioner’s clinic. His date of birth is 1 August
1983.4
The spouses reared and cared for the children as if they
were their own. They sent the children to exclusive
schools. They used the surname "Lim" in all their school
records and documents. Unfortunately, on 28 November
1998, Lim died. On 27 December 2000, petitioner
married Angel Olario (Olario), an American citizen.  Petitioner appealed directly to this Court raising the sole
Thereafter, petitioner decided to adopt the children by
availing of the amnesty5 given under Republic Act No.
85526(RA 8552) to those individuals who simulated the
birth of a child. Thus, on 24 April 2002, petitioner filed
separate petitions for the adoption of Michelle and
Michael before the trial court docketed as SPL PROC.
Case Nos. 1258 and 1259, respectively. At the time of
the filing of the petitions for adoption, Michelle was 25
years old and already married, while Michael was 18
years and seven months old.
Michelle and her husband gave their consent to the
adoption as evidenced by their Affidavits of
Consent.7 Michael also gave his consent to his adoption
as shown in his Affidavit of Consent.8 Petitioner’s
husband Olario likewise executed an Affidavit of
Consent9 for the adoption of Michelle and Michael.
In the Certification issued by the Department of Social
Welfare and Development (DSWD), Michelle was
considered as an abandoned child and the whereabouts
of her natural parents were unknown.10 The DSWD
issued a similar Certification for Michael.11
The Ruling of the Trial Court
On 15 September 2004, the trial court rendered
judgment dismissing the petitions. The trial court ruled
that since petitioner had remarried, petitioner should
have filed the petition jointly with her new husband. The
trial court ruled that joint adoption by the husband and
the wife is mandatory citing Section 7(c), Article III of RA
8552 and Article 185 of the Family Code.
Petitioner filed a Motion for Reconsideration of the
decision but the motion was denied in the Order dated
16 June 2005. In denying the motion, the trial court ruled
that petitioner did not fall under any of the exceptions
under Section 7(c), Article III of RA 8552. Petitioner’s
argument that mere consent of her husband would
suffice was untenable because, under the law, there are
additional requirements, such as residency and
certification of his qualification, which the husband, who
was not even made a party in this case, must comply. 
As to the argument that the adoptees are already
emancipated and joint adoption is merely for the joint
exercise of parental authority, the trial court ruled that
joint adoption is not only for the purpose of exercising
parental authority because an emancipated child
acquires certain rights from his parents and assumes
certain obligations and responsibilities.
Hence, the present petition.
Issue
issue of whether or not petitioner, who has remarried,
can singly adopt.
The Court’s Ruling
Petitioner contends that the rule on joint adoption must
be relaxed because it is the duty of the court and the
State to protect the paramount interest and welfare of
the child to be adopted. Petitioner argues that the legal
maxim "dura lex sed lex" is not applicable to adoption
cases. She argues that joint parental authority is not
necessary in this case since, at the time the petitions
were filed, Michelle was 25 years old and already
married, while Michael was already 18 years of age.
Parental authority is not anymore necessary since they
have been emancipated having attained the age of
majority.
We deny the petition.
Joint Adoption by Husband and Wife 
It is undisputed that, at the time the petitions for adoption
were filed, petitioner had already remarried. She filed the
petitions by herself, without being joined by her husband
Olario. We have no other recourse but to affirm the trial
court’s decision denying the petitions for adoption. Dura
lex sed lex.  The law is explicit. Section 7, Article III of RA
8552 reads:
SEC. 7. Who May Adopt. - The following may adopt:
(a) Any Filipino citizen of legal age, in
possession of full civil capacity and legal rights,
of good moral character, has not been convicted
of any crime involving moral turpitude,
emotionally and psychologically capable of
caring for children, at least sixteen (16) years
older than the adoptee, and who is in a position
to support and care for his/her children in
keeping with the means of the family. The
requirement of sixteen (16) year difference
between the age of the adopter and adoptee
may be waived when the adopter is the
 biological parent of the adoptee, or is the spouse
of the adoptee’s parent;
(b) Any alien possessing the same qualifications
as above stated for Filipino nationals: Provided,
That his/her country has diplomatic relations with
the Republic of the Philippines, that he/she has
been living in the Philippines for at least three (3)
continuous years prior to the filing of the
application for adoption and maintains such
residence until the adoption decree is entered,
that he/she has been certified by his/her
diplomatic or consular office or any appropriate
government agency that he/she has the legal
capacity to adopt in his/her country, and that
his/her government allows the adoptee to enter
his/her country as his/her adopted
son/daughter: Provided, further, That the
requirements on residency and certification of
the alien’s qualification to adopt in his/her
country may be waived for the following:
(i) a former Filipino citizen who seeks to
adopt a relative within the fourth (4th)
degree of consanguinity or affinity; or
(ii) one who seeks to adopt the
legitimate son/daughter of his/her
Filipino spouse; or
(iii) one who is married to a Filipino
citizen and seeks to adopt jointly with
his/her spouse a relative within the
fourth (4th) degree of consanguinity or
affinity of the Filipino spouses; or
(c) The guardian with respect to the ward after
the termination of the guardianship and
clearance of his/her financial accountabilities.
Husband and wife shall jointly adopt, except
in the following cases:
(i) if one spouse seeks to adopt the
legitimate son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her
own illegitimate son/daughter: Provided,
however, That the other spouse has
signified his/her consent thereto; or
(iii) if the spouses are legally separated
from each other. 
In case husband and wife jointly adopt, or one spouse
adopts the illegitimate son/daughter of the other, joint
parental authority shall be exercised by the spouses.
(Emphasis supplied)
The use of the word "shall" in the above-quoted
provision means that joint adoption by the husband and
the wife is mandatory. This is in consonance with the
concept of joint parental authority over the child which is
the ideal situation. As the child to be adopted is elevated
to the level of a legitimate child, it is but natural to require
the spouses to adopt jointly. The rule also insures
harmony between the spouses.12
The law is clear. There is no room for ambiguity.
Petitioner, having remarried at the time the petitions for
adoption were filed, must jointly adopt. Since the
petitions for adoption were filed only by petitioner herself,
without joining her husband, Olario, the trial court was
correct in denying the petitions for adoption on this
ground. 
Neither does petitioner fall under any of the three
exceptions enumerated in Section 7. First, the children to
be adopted are not the legitimate children of petitioner or
of her husband Olario. Second, the children are not the
illegitimate children of petitioner. And third, petitioner and
Olario are not legally separated from each other.
The fact that Olario gave his consent to the adoption as
shown in his Affidavit of Consent does not suffice. There
are certain requirements that Olario must comply being
an American citizen. He must meet the qualifications set
forth in Section 7 of RA 8552 such as: (1) he must prove
that his country has diplomatic relations with the
Republic of the Philippines; (2) he must have been living
in the Philippines for at least three continuous years prior
to the filing of the application for adoption; (3) he must
maintain such residency until the adoption decree is
entered; (4) he has legal capacity to adopt in his own
country; and (5) the adoptee is allowed to enter the
adopter’s country as the latter’s adopted child. None of
these qualifications were shown and proved during the
trial.
These requirements on residency and certification of the
alien’s qualification to adopt cannot likewise be waived
pursuant to Section 7. The children or adoptees are not
relatives within the fourth degree of consanguinity or
affinity of petitioner or of Olario. Neither are the adoptees
the legitimate children of petitioner.
Effects of Adoption
Petitioner contends that joint parental authority is not
anymore necessary since the children have been
emancipated having reached the age of majority. This is
untenable.
Parental authority includes caring for and rearing the
children for civic consciousness and efficiency and the
development of their moral, mental and physical
character and well-being.13 The father and the mother
shall jointly exercise parental authority over the persons
of their common children.14 Even the remarriage of the
surviving parent shall not affect the parental authority
over the children, unless the court appoints another the child to be of paramount consideration. They are
person to be the guardian of the person or property of designed to provide homes, parental care and education
the children.15 for unfortunate, needy or orphaned children and give
them the protection of society and family, as well as to
It is true that when the child reaches the age of allow childless couples or persons to experience the joys
emancipation — that is, when he attains the age of of parenthood and give them legally a child in the person
majority or 18 years of age16 — emancipation terminates of the adopted for the manifestation of their natural
parental authority over the person and property of the parental instincts. Every reasonable intendment should
child, who shall then be qualified and responsible for all be sustained to promote and fulfill these noble and
acts of civil life.17 However, parental authority is merely compassionate objectives of the law.23 But, as we have
just one of the effects of legal adoption. Article V of RA ruled in Republic v. Vergara:24
8552 enumerates the effects of adoption, thus:
We are not unmindful of the main purpose of adoption
ARTICLE V statutes, which is the promotion of the welfare of the
EFFECTS OF ADOPTION children. Accordingly, the law should be construed
liberally, in a manner that will sustain rather than defeat
said purpose. The law must also be applied with
SEC. 16. Parental Authority. - Except in cases where the
compassion, understanding and less severity in view of
biological parent is the spouse of the adopter, all legal
the fact that it is intended to provide homes, love, care
ties between the biological parent(s) and the adoptee
and education for less fortunate children. Regrettably,
shall be severed and the same shall then be vested on
the Court is not in a position to affirm the trial court’s
the adopter(s).
decision favoring adoption in the case at bar, for the law
is clear and it cannot be modified without violating
SEC. 17. Legitimacy. - The adoptee shall be considered the proscription against judicial legislation. Until
the legitimate son/daughter of the adopter(s) for all such time however, that the law on the matter is
intents and purposes and as such is entitled to all the amended, we cannot sustain the respondent-spouses’
rights and obligations provided by law to legitimate petition for adoption. (Emphasis supplied)1avvphi1.zw+
sons/daughters born to them without discrimination of
any kind. To this end, the adoptee is entitled to love,
Petitioner, being married at the time the petitions for
guidance, and support in keeping with the means of the
adoption were filed, should have jointly filed the petitions
family.
with her husband. We cannot make our own legislation
to suit petitioner.
SEC. 18.  Succession. - In legal and intestate
succession, the adopter(s) and the adoptee shall have
Petitioner, in her Memorandum, insists that subsequent
reciprocal rights of succession without distinction from
events would show that joint adoption could no longer be
legitimate filiation. However, if the adoptee and his/her
possible because Olario has filed a case for dissolution
biological parent(s) had left a will, the law on
of his marriage to petitioner in the Los Angeles Superior
testamentary succession shall govern. 
Court. 
Adoption has, thus, the following effects: (1) sever all
We disagree. The filing of a case for dissolution of the
legal ties between the biological parent(s) and the
marriage between petitioner and Olario is of no moment.
adoptee, except when the biological parent is the spouse
It is not equivalent to a decree of dissolution of marriage.
of the adopter; (2) deem the adoptee as a legitimate
Until and unless there is a judicial decree for the
child of the adopter; and (3) give adopter and adoptee
dissolution of the marriage between petitioner and
reciprocal rights and obligations arising from the
Olario, the marriage still subsists. That being the case,
relationship of parent and child, including but not limited
joint adoption by the husband and the wife is required.
to: (i) the right of the adopter to choose the name the
We reiterate our ruling above that since, at the time the
child is to be known; and (ii) the right of the adopter and
petitions for adoption were filed, petitioner was married
adoptee to be legal and compulsory heirs of each
to Olario, joint adoption is mandatory.
other.18 Therefore, even if emancipation terminates
parental authority, the adoptee is still considered a
legitimate child of the adopter with all the rights19 of a
legitimate child such as: (1) to bear the surname of the
father and the mother; (2) to receive support from their
parents; and (3) to be entitled to the legitime and other
successional rights. Conversely, the adoptive parents
shall, with respect to the adopted child, enjoy all the
benefits to which biological parents are entitled20 such as
support21 and successional rights.22 .R. No. 159374               July 12, 2007

We are mindful of the fact that adoption statutes, being

humane and salutary, hold the interests and welfare of
FELIPE N. MADRIÑAN, Petitioner,  certification from the principal of the Dila Elementary
vs.
FRANCISCA R. MADRIÑAN, Respondent.
DECISION
CORONA, J.:
When a family breaks up, the children are always the
victims. The ensuing battle for custody of the minor
children is not only a thorny issue but also a highly
sensitive and heart-rending affair. Such is the case here.
Even the usually technical subject of jurisdiction became
emotionally charged.
Petitioner Felipe N. Madriñan and respondent Francisca
R. Madriñan were married on July 7, 1993 in Parañaque
City. They resided in San Agustin Village, Brgy.
Moonwalk, Parañaque City.
Their union was blessed with three sons and a daughter:
Ronnick, born on January 30, 1994; Phillip, born on
November 19, 1996; Francis Angelo, born on May 12,
1998 and Krizia Ann, born on December 12, 2000.
After a bitter quarrel on May 18, 2002, petitioner
allegedly left their conjugal abode and took their three
sons with him to Ligao City, Albay and subsequently to
Sta. Rosa, Laguna. Respondent sought the help of her
parents and parents-in-law to patch things up between
her and petitioner to no avail. She then brought the
matter to the Lupong Tagapamayapa in their barangay
but this too proved futile.
Thus respondent filed a petition for habeas corpus of
Ronnick, Phillip and Francis Angelo in the Court of
Appeals, alleging that petitioner’s act of leaving the
conjugal dwelling and going to Albay and then to Laguna
disrupted the education of their children and deprived
them of their mother’s care. She prayed that petitioner
be ordered to appear and produce their sons before the
court and to explain why they should not be returned to
her custody.
Petitioner and respondent appeared at the hearing on
September 17, 2002. They initially agreed that petitioner
would return the custody of their three sons to
respondent. Petitioner, however, had a change of
heart1 and decided to file a memorandum.
On September 3, 2002, petitioner filed his
memorandum2 alleging that respondent was unfit to take
custody of their three sons because she was habitually
drunk, frequently went home late at night or in the wee
hours of the morning, spent much of her time at a beer
house and neglected her duties as a mother. He claimed
that, after their squabble on May 18, 2002, it was
respondent who left, taking their daughter with her. It
was only then that he went to Sta. Rosa, Laguna where
he worked as a tricycle driver. He submitted a
School in Sta. Rosa, Laguna that Ronnick and Phillip
were enrolled there. He also questioned the jurisdiction
of the Court of Appeals claiming that under Section 5(b)
of RA 8369 (otherwise known as the "Family Courts Act
of 1997") family courts have exclusive original
jurisdiction to hear and decide the petition for habeas
corpus filed by respondent.3
For her part, respondent averred that she did not leave
their home on May 18, 2002 but was driven out by
petitioner. She alleged that it was petitioner who was an
alcoholic, gambler and drug addict. Petitioner’s
alcoholism and drug addiction impaired his mental
faculties, causing him to commit acts of violence against
her and their children. The situation was aggravated by
the fact that their home was adjacent to that of her in-
laws who frequently meddled in their personal
problems.4
On October 21, 2002, the Court of Appeals5 rendered a
decision6 asserting its authority to take cognizance of the
petition and ruling that, under Article 213 of the Family
Code, respondent was entitled to the custody of Phillip
and Francis Angelo who were at that time aged six and
four, respectively, subject to the visitation rights of
petitioner. With respect to Ronnick who was then eight
years old, the court ruled that his custody should be
determined by the proper family court in a special
proceeding on custody of minors under Rule 99 of the
Rules of Court.
Petitioner moved for reconsideration of the Court of
Appeals decision but it was denied. Hence, this
recourse.
Petitioner challenges the jurisdiction of the Court of
Appeals over the petition for habeas corpus and insists
that jurisdiction over the case is lodged in the family
courts under RA 8369. He invokes Section 5(b) of RA
8369:
Section 5. Jurisdiction of Family Courts. – The Family
Courts shall have exclusive original jurisdiction to hear
and decide the following cases:
x x x           x x x          x x x
b) Petitions for guardianship, custody of
children, habeas corpus in relation to the latter;
x x x           x x x          x x x
Petitioner is wrong.
In Thornton v. Thornton,7 this Court resolved the issue of
the Court of Appeals’ jurisdiction to issue writs of habeas
corpus in cases involving custody of minors in the light of
the provision in RA 8369 giving family courts exclusive
original jurisdiction over such petitions:
The Court of Appeals should take cognizance of the
case since there is nothing in RA 8369 that revoked
its jurisdiction to issue writs of habeas
corpus involving the custody of minors.
x x x           x x x          x x x
We rule therefore that RA 8369 did not divest the
Court of Appeals and the Supreme Court of their
jurisdiction over habeas corpus cases involving the
custody of minors.
x x x           x x x          x x x
The provisions of RA 8369 reveal no manifest intent to
revoke the jurisdiction of the Court of Appeals and
Supreme Court to issue writs of habeas corpus relating
to the custody of minors. Further, it cannot be said that
the provisions of RA 8369, RA 7092 [An Act Expanding
the Jurisdiction of the Court of Appeals] and BP 129 [The
Judiciary Reorganization Act of 1980] are absolutely
incompatible since RA 8369 does not prohibit the Court
of Appeals and the Supreme Court from issuing writs
of habeas corpus in cases involving the custody of
minors. Thus, the provisions of RA 8369 must be read in
harmony with RA 7029 and BP 129 – that family courts
have concurrent jurisdiction with the Court of
Appeals and the Supreme Court in petitions
for habeas corpus where the custody of minors is at
issue.8 (emphases supplied)
The jurisdiction of the Court of Appeals over petitions
for habeas corpus was further affirmed by A.M. No. 03-
03-04-SC (April 22, 2004) in Re: Rule on Custody of
Minors and Writ of Habeas Corpus in Relation to
Custody of Minors:
In any case, whatever uncertainty there was has been
settled with the adoption of A.M. No. 03-03-04-SC Re:
Rule on Custody of Minors and Writ of Habeas
Corpus in Relation to Custody of Minors. Section 20
of the rule provides that:
Section 20. Petition for writ of habeas corpus. – A
verified petition for a writ of habeas corpus involving
custody of minors shall be filed with the Family Court.
The writ shall be enforceable within its judicial region to
which the Family Court belongs.
x x x           x x x          x x x
The petition may likewise be filed with the Supreme
Court, Court of Appeals, or with any of its
members and, if so granted, the writ shall be
enforceable anywhere in the Philippines. The writ
may be made returnable to a Family Court or to any
regular court within the region where the petitioner
resides or where the minor may be found for hearing and
decision on the merits.
From the foregoing, there is no doubt that the Court of
Appeals and Supreme Court have concurrent
jurisdiction with family courts in habeas
corpus cases where the custody of minors is
involved.9 (emphases supplied)1avvphi1
We note that after petitioner moved out of their
Parañaque residence on May 18, 2002, he twice
transferred his sons to provinces covered by different
judicial regions. This situation is what
the Thornton  interpretation of RA 8369’s provision on
jurisdiction precisely addressed:
[The reasoning that by giving family courts exclusive
jurisdiction over habeas corpus cases, the lawmakers
intended them to be the sole courts which can issue
writs of habeas corpus] will result in an iniquitous
situation, leaving individuals like [respondent] without
legal recourse in obtaining custody of their children.
Individuals who do not know the whereabouts of minors
they are looking for would be helpless since they cannot
seek redress from family courts whose writs are
enforceable only in their respective territorial
jurisdictions. Thus, if a minor is being transferred
from one place to another, which seems to be the
case here, the petitioner in a habeas corpuscase will
be left without legal remedy. This lack of recourse
could not have been the intention of the lawmakers
when they passed [RA 8369].10
Moreover, a careful reading of Section 5(b) of RA 8369
reveals that family courts are vested with original
exclusive jurisdiction in custody cases, not in habeas
corpus cases. Writs of habeas corpus which may be
issued exclusively by family courts under Section 5(b) of
RA 8369 pertain to the ancillary remedy that may be
availed of in conjunction with a petition for custody of
minors under Rule 99 of the Rules of Court. In other
words, the issuance of the writ is merely ancillary to the
custody case pending before the family court. The writ
must be issued by the same court to avoid splitting of
jurisdiction, conflicting decisions, interference by a co-
equal court and judicial instability.
The rule therefore is: when by law jurisdiction is
conferred on a court or judicial officer, all auxiliary writs,
processes and other means necessary to carry it into
effect may be employed by such court or officer.11 Once
a court acquires jurisdiction over the subject matter of a
case, it does so to the exclusion of all other courts,
including related incidents and ancillary matters.
G.R. No. 154598             August 16, 2004
IN THE MATTER OF APPLICATION FOR THE
ISSUANCE OF A WRIT OF HABEAS CORPUS
RICHARD BRIAN THORNTON for and in behalf of the
minor child SEQUEIRA JENNIFER DELLE
FRANCISCO THORNTON, petitioner, 
vs.
ADELFA FRANCISCO THORNTON, respondent.
DECISION
CORONA, J.:
This is a petition to review, under Rule 45 of the Rules of
Court, the July 5, 2002 resolution1 of the Court of
Appeals, Sixteenth Division, in CA G.R. SP No. 70501
dismissing the petition for habeas corpus on the grounds
of lack of jurisdiction and lack of substance. The
dispositive portion2 read:
WHEREFORE, the Court DISMISSES the
petition for habeas corpus on the grounds that:
a) this Court has no jurisdiction over the subject
matter of the petition; and b) the petition is not
sufficient in substance.
Petitioner, an American, and respondent, a Filipino, were
married on August 28, 1998 in the Catholic Evangelical
Church at United Nations Avenue, Manila. A year later,
respondent gave birth to a baby girl whom they named
Sequeira Jennifer Delle Francisco Thornton.
However, after three years, respondent grew restless
and bored as a plain housewife. She wanted to return to
her old job as a "guest relations officer" in a nightclub,
with the freedom to go out with her friends. In fact,
whenever petitioner was out of the country, respondent
was also often out with her friends, leaving her daughter
in the care of the househelp. 
Petitioner admonished respondent about her
irresponsibility but she continued her carefree ways. On
December 7, 2001, respondent left the family home with
her daughter Sequiera without notifying her husband.
She told the servants that she was bringing Sequiera to
Purok Marikit, Sta. Clara, Lamitan, Basilan Province.  to constitute the Family Court as the sole court
Petitioner filed a petition for habeas corpus in the
designated Family Court in Makati City but this was
dismissed, presumably because of the allegation that the
child was in Basilan. Petitioner then went to Basilan to
ascertain the whereabouts of respondent and their
daughter. However, he did not find them there and the
barangay office of Sta. Clara, Lamitan, Basilan, issued a
certification3 that respondent was no longer residing
there.
Petitioner gave up his search when he got hold of
respondent’s cellular phone bills showing calls from
different places such as Cavite, Nueva Ecija, Metro
Manila and other provinces. Petitioner then filed another
petition for habeas corpus, this time in the Court of
Appeals which could issue a writ of habeas corpus
enforceable in the entire country.
However, the petition was denied by the Court of
Appeals on the ground that it did not have jurisdiction
over the case. It ruled that since RA 8369 (The Family
Courts Act of 1997) gave family courts exclusive original
jurisdiction over petitions for habeas corpus, it impliedly
repealed RA 7902 (An Act Expanding the Jurisdiction of
the Court of Appeals) and Batas Pambansa 129 (The
Judiciary Reorganization Act of 1980):
Under Sec. 9 (1), BP 129 (1981) the
Intermediate Appellate Court (now Court of
Appeals) has jurisdiction to issue a writ of
habeas corpus whether or not in aid of its
appellate jurisdiction. This conferment of
jurisdiction was re-stated in Sec. 1, RA 7902
(1995), an act expanding the jurisdiction of this
Court. This jurisdiction finds its procedural
expression in Sec. 1, Rule 102 of the Rules of
Court.
In 1997, RA 8369 otherwise known as Family
Courts Act was enacted. It provides:
Sec. 5. Jurisdiction of Family Court. –
The Family Courts shall have exclusive
original jurisdiction to hear and decide
the following cases:
xxx       xxx       xxx
b. Petition for guardianship,
custody of children, habeas
corpus in relation to the latter.
The vital question is, did RA 8369 impliedly
repeal BP 129 and RA 7902 insofar as the
jurisdiction of this Court to issue writ of habeas
corpus in custody of minor cases is concerned?
The simple answer is, yes, it did, because there
is no other meaning of the word "exclusive" than
which can issue said writ. If a court other than
the Family Court also possesses the same
competence, then the jurisdiction of the former is
not exclusive but concurrent – and such an
interpretation is contrary to the simple and clear
wording of RA 8369.
Petitioner argues that unless this Court assumes
jurisdiction over a petition for habeas corpus
involving custody of minors, a respondent can
easily evade the service of a writ of habeas
corpus on him or her by just moving out of the
region over which the Regional Trial Court
 issuing the writ has territorial jurisdiction. That
may be so but then jurisdiction is conferred by
law. In the absence of a law conferring such
jurisdiction in this Court, it cannot exercise it
even if it is demanded by expediency or
necessity.
Whether RA 8369 is a good or unwise law is not
within the authority of this Court – or any court
for that matter – to determine. The enactment of
a law on jurisdiction is within the exclusive
domain of the legislature. When there is a
perceived defect in the law, the remedy is not to
be sought form the courts but only from the
legislature.
The only issue before us therefore is whether the Court
of Appeals has jurisdiction to issue writs of habeas
corpus in cases involving custody of minors in the light of
the provision in RA 8369 giving family courts exclusive
original jurisdiction over such petitions.
In his comment, the Solicitor General points out that
Section 20 of the Rule on Custody of Minors and Writ of
Habeas Corpus in Relation to Custody of Minors (A.M.
No. 03-04-04-SC, effective May 15, 2003) has rendered
the issue moot. Section 20 of the rule provides that a
petition for habeas corpus may be filed in the Supreme
Court,4 Court of Appeals, or with any of its members and,
if so granted, the writ shall be enforceable anywhere in
the Philippines.5  proceedings will not result in disruption of the
The petition is granted. 
The Court of Appeals should take cognizance of the
case since there is nothing in RA 8369 that revoked its
jurisdiction to issue writs of habeas corpus involving the
custody of minors.
The Court of Appeals opines that RA 8369 impliedly
repealed RA 7902 and BP 129 since, by giving family
courts exclusive jurisdiction over habeas corpus cases,
the lawmakers intended it to be the sole court which can
issue writs of habeas corpus. To the court a quo, the
word "exclusive" apparently cannot be construed any
other way.
We disagree with the CA’s reasoning because it will
result in an iniquitous situation, leaving individuals like
petitioner without legal recourse in obtaining custody of
their children. Individuals who do not know the
whereabouts of minors they are looking for would be
helpless since they cannot seek redress from family
courts whose writs are enforceable only in their
respective territorial jurisdictions. Thus, if a minor is
being transferred from one place to another, which
seems to be the case here, the petitioner in a habeas
corpus case will be left without legal remedy. This lack of
recourse could not have been the intention of the
lawmakers when they passed the Family Courts Act of
1997. As observed by the Solicitor General:
Under the Family Courts Act of 1997, the
avowed policy of the State is to "protect the
rights and promote the welfare of children." The
creation of the Family Court is geared towards
addressing three major issues regarding
children’s welfare cases, as expressed by the
legislators during the deliberations for the law.
The legislative intent behind giving Family
Courts exclusive and original jurisdiction over
such cases was to avoid further clogging of
regular court dockets, ensure greater sensitivity
and specialization in view of the nature of the
case and the parties, as well as to guarantee
that the privacy of the children party to the case
remains protected.
The primordial consideration is the welfare and best
interests of the child. We rule therefore that RA 8369 did
not divest the Court of Appeals and the Supreme Court
of their jurisdiction over habeas corpus cases involving
the custody of minors. Again, to quote the Solicitor
General: 
To allow the Court of Appeals to exercise
jurisdiction over the petition for habeas corpus
involving a minor child whose whereabouts are
uncertain and transient will not result in one of
the situations that the legislature seeks to avoid.
First, the welfare of the child is paramount.
Second, the ex parte nature of habeas corpus
child’s privacy and emotional well-being;
whereas to deprive the appellate court of
jurisdiction will result in the evil sought to be
avoided by the legislature: the child’s welfare
and well being will be prejudiced.
This is not the first time that this Court construed the
word "exclusive" as not  foreclosing resort to another
jurisdiction. As correctly cited by the Solicitor General,
in Floresca vs. Philex Mining Corporation,6 the heirs of
miners killed in a work-related accident were allowed to
file suit in the regular courts even if, under the
Workmen’s Compensation Act, the Workmen’s
Compensation Commissioner had exclusive jurisdiction
over such cases.
We agree with the observations of the Solicitor General
that:
While Floresca involved a cause of action
different from the case at bar. it supports
petitioner’s submission that the word "exclusive"
in the Family Courts Act of 1997 may not
connote automatic foreclosure of the jurisdiction
of other courts over habeas corpus cases
involving minors. In the same manner that the
remedies in the Floresca case were selective,
the jurisdiction of the Court of Appeals and
Family Court in the case at bar is concurrent.
The Family Court can issue writs of habeas
 corpus enforceable only within its territorial
jurisdiction. On the other hand, in cases where
the territorial jurisdiction for the enforcement of
the writ cannot be determined with certainty, the
Court of Appeals can issue the same writ
enforceable throughout the Philippines, as
provided in Sec. 2, Rule 102 of the Revised
Rules of Court, thus:
The Writ of Habeas Corpus may be
granted by the Supreme Court, or any
member thereof, on any day and at any
time, or by the Court of Appeals or any
member thereof in the instances
authorized by law, and if so granted it
shall be enforceable anywhere in the
Philippines, and may be made
returnable before the court or any
member thereof, or before a Court of
First Instance, or any judge thereof for
hearing and decision on the merits.  It
may also be granted by a Court of First
Instance, or a judge thereof, on any day
and at any time, and returnable before
himself, enforceable only within his
judicial district. (Emphasis supplied)
In ruling that the Commissioner’s "exclusive" jurisdiction
did not foreclose resort to the regular courts for
damages, this Court, in the same Floresca case, said
that it was merely applying and giving effect to the
constitutional guarantees of social justice in the 1935
and 1973 Constitutions and implemented by the Civil
Code. It also applied the well-established rule that what
is controlling is the spirit and intent, not the letter, of the
law:
"Idolatrous reverence" for the law sacrifices the
human being. The spirit of the law insures man’s
survival and ennobles him. In the words of
Shakespeare, "the letter of the law killeth; its
spirit giveth life."
xxx       xxx       xxx
It is therefore patent that giving effect to the
social justice guarantees of the Constitution, as
implemented by the provisions of the New Civil
Code, is not an exercise of the power of law-
making, but is rendering obedience to the
mandates of the fundamental law and the
implementing legislation aforementioned.
Language is rarely so free from ambiguity as to be
incapable of being used in more than one sense.
Sometimes, what the legislature actually had in mind is
not accurately reflected in the language of a statute, and
its literal interpretation may render it meaningless, lead
to absurdity, injustice or contradiction.7 In the case at bar,
a literal interpretation of the word "exclusive" will result in
grave injustice and negate the policy "to protect the
rights and promote the welfare of children"8 under the
Constitution and the United Nations Convention on the
Rights of the Child. This mandate must prevail over legal
technicalities and serve as the guiding principle in
construing the provisions of RA 8369.
Moreover, settled is the rule in statutory construction that
implied repeals are not favored:
The two laws must be absolutely incompatible,
and a clear finding thereof must surface, before
the inference of implied repeal may be drawn.
The rule is expressed in the maxim, interpretare
et concordare leqibus est optimus
interpretendi, i.e., every statute must be so
interpreted and brought into accord with other
laws as to form a uniform system of
jurisprudence. The fundament is that the
legislature should be presumed to have known
the existing laws on the subject and not have
enacted conflicting statutes. Hence, all doubts
must be resolved against any implied repeal,
and all efforts should be exerted in order to
harmonize and give effect to all laws on the
subject."9 
The provisions of RA 8369 reveal no manifest intent to
revoke the jurisdiction of the Court of Appeals and
Supreme Court to issue writs of habeas corpus relating
to the custody of minors. Further, it cannot be said that
the provisions of RA 8369, RA 7092 and BP 129 are
absolutely incompatible since RA 8369 does not prohibit
the Court of Appeals and the Supreme Court from
issuing writs of habeas corpus in cases involving the
custody of minors. Thus, the provisions of RA 8369 must
be read in harmony with RA 7029 and BP 129 ― that
family courts have concurrent jurisdiction with the Court
of Appeals and the Supreme Court in petitions for
habeas corpus where the custody of minors is at issue.
In any case, whatever uncertainty there was has been
settled with the adoption of A.M. No. 03-03-04-SC Re:
Rule on Custody of Minors and Writ of Habeas Corpus in
Relation to Custody of Minors. Section 20 of the rule
provides that:
Section 20. Petition for writ of habeas corpus.- A
verified petition for a writ of habeas
corpus involving custody of minors shall be filed
with the Family Court. The writ shall be
enforceable within its judicial region to which the
Family Court belongs.
xxx       xxx       xxx
The petition may likewise be filed with the
Supreme Court, Court of Appeals, or with any of
its members and, if so granted, the writ shall be
enforceable anywhere in the Philippines. The
writ may be made returnable to a Family Court
or to any regular court within the region where
 the petitioner resides or where the minor may be
found for hearing and decision on the merits.
(Emphasis Ours)
From the foregoing, there is no doubt that the Court of
Appeals and Supreme Court have concurrent jurisdiction
with family courts in habeas corpus cases where the
custody of minors is involved.  criminal cases (Nos. 13681, 19166 and 39253,
One final note. Requiring the serving officer to search for
the child all over the country is not an unreasonable
availment of a remedy which the Court of Appeals cited
as a ground for dismissing the petition. As explained by
the Solicitor General:10  Embassy, Manila, on November 12, 1958, to
That the serving officer will have to "search for
the child all over the country" does not represent
an insurmountable or unreasonable obstacle,
since such a task is no more different from or
difficult than the duty of the peace officer in
effecting a warrant of arrest, since the latter is
likewise enforceable anywhere within the
Philippines.
G.R. No. L-15474             August 31, 1960
ALFREDO B. SAULO, petitioner-appellant,  Manila. Said criminal case is a complaint against
vs.
BRIG. GENERAL PELAGIO CRUZ, ETC., respondent-
appellee.
Alberto M.K. Jamir for appellant.
Office of the Solicitor General E. Barot and Acting
Solicitor General P. P. de Castro for appellee.
REYES, J.B.L., J.:
In G.R. No. L-14819, a petition for habeas corpus was
filed before this Court by and in behalf of petitioner
Alfredo B. Saulo. We issued, on December 24, 1958, a
writ ordering respondent Pelagio Cruz, as the
Commanding General of the Philippine Constabulary, to
submit, within five (5) days from notice, an answer
returnable to the Court of First Instance of Manila.
At the hearing in the court below, respondent questioned
the jurisdiction of the lower court on the ground that,
inasmuch as petitioner was confined in the Philippine
Constabulary stockade at Camp Crame, Quezon City,
the Manila court was without jurisdiction to entertain the
case consonant with Section 2, Rule 102 of the Rules of
Court. Upon the remanding of the particular issue to us
by the trial judge, we overruled this contention in our
resolution of March 19, 1959, and accordingly, we
ordered the return of the records to the lower court for its
appropriate action on the merits of the petition.
The case was submitted to the lower court for decision
solely on the facts appearing in petitioner's pleadings
and admitted by the respondent. According to the lower
court:
After successfully evading arrest since
September, 1950, in connection with three
CFI, Manila) one for inciting to rebellion with
murders, arsons, robberies and kidnappings,
Alfredo B. Saulo, in whose behalf the present
petition for a writ of habeas corpus has been
presented, finally showed up at the Indonesian
seek refuge therein. As a result of negotiations
had, the Indonesian Embassy surrendered him
to the Philippine Government on November 18,
1958, since which date he has remained in the
custody of the Philippine Constabulary at Camp
Crame, Quezon City. One of the two criminal
cases for rebellion having been dismissed with
respect to him on motion of the prosecution,
Saulo put up bail in the two remaining cases
(Nos. 13681 and 39253). When the
corresponding order for his temporary release
was served, the herein respondent Commanding
General of the Philippine Constabulary
commanded one of his subordinates to with hold
the release of Saulo on account of Criminal
Case No. 46410 the Court of First Instance of
Saulo, filed on November 19, 1958, by the Fiscal
of Manila, for alleged violation of Republic Act
No. 1700, otherwise known as the Anti-
Subversion Act, punishable by  prision mayor to
death, so that the said Court of First Instance
might conduct the corresponding preliminary
investigation, as provided in the Act. While said
preliminary investigation was still going on, that
is, on December 23, 1958, petitioner applied for
a writ of habeas corpus  with the Supreme Court,
as already stated, on the ground that his
detention, without warrant of arrest, by reason of
the pendency of the aforesaid Criminal Case No.
46410, is illegal and void. Said court gave due
course to the application and directed the
respondent Commanding General of the
Philippine Constabulary to file answer,
returnable to the Court of First Instance of
Manila.
Respondent filed answer, as directed, admitting
practically all the facts above related and alleged
in the application, with the plea that "the
pendency of Criminal Case No. 46410 for
violation of Republic Act No. 1700 filed before
the Court of First Instance of Manila is sufficient
reason for continuing the detention of the
petitioner, in the absence of an order of the
Court for his discharge under the case
aforesaid."
Upon such findings, the lower rendered decision,
concluding that the filing of Criminal Case No. 46410
amounted to the delivery of accused-petitioner, who was
arrested without warrant, to the proper court as provided
under Section 17, Rule 109 of the Rules of Court (citing
Sayo, et al. vs. Chief of Police, 80 Phil., 859). The Court
consequently denied the petition for habeas corpus.
Hence, this appeal.
However, petitioner's appeal to have been filed out of
time, as pointed out by the Solicitor General. The
records disclose that the notice of appeal was filed
eleven (11) days after a copy of the lower court's
decision, denying the petition, was served upon
petitioner's counsel (on May 12, 1959 as per sheriff's
return). As provided by Section 18, Rule 41 of the Rules
of Court, petitioner should have perfected his appeal
within twenty-four (24) hours from notice of judgment:
Sec. 18. Appeal in habeas corpus cases, how
taken. — An appeal in habeas corpus case shall
be perfected by filing with the clerk of the court
or the judge who rendered the judgment, within
twenty-four (24) hours of notice of such
judgment, a statement that the person making it
appeals from the judgment rendered.
It has been consistently held that the reglementary
period for appeal is not mandatory but jurisdictional on
the courts and that an appeal filed out of the time may be
sought to be dismissed at any stage of the proceedings
in the appellate court.1
In petitioner's "manifestation" dated October 12, 1959 it
is contented that since the case for habeas corpus was
heard by the Manila Court of First Instance, "not by
virtue of its original jurisdiction but merely by delegation",
this Court should have the final say regarding the issues
raised in the petition, and only its decision, not that of the
Court of First Instance, should be regarded as operative.
The logic is more than real. While the petition for habeas
corpus  was originally filed with this Court, the only
question that was immediately involved was the propriety
of the issuance of a writ that would order the respondent
to show cause why the detention of the person in whose
behalf the writ was asked for should not be considered
illegal, and that, therefore, the petitioner be ordered
discharged from custody. The Rules authorize that once
the writ is issued, the same may be made returnable
before a Court of First Instance (Sec. 2, Rule 102, Rules
of Court), and not necessarily to us. The court
designated does not thereby become merely a
recommendatory body, whose findings and conclusion
are devoid of effect, unless and until we decide to act on
the "recommendation". By filing a notice of appeal with
the Court below, the appellant impliedly admitted that the
decision appealed was not merely recommendatory or
fact-finding.
In our resolution dated March 19, 1959, resolving the
question of jurisdiction of the lower court, we stated the
following:
Moreover, it is apparent from sections 12 to 15
of said Rule 102 that the court or judge to whom
the writ is returned shall have the authority and
the duty to inquire into the facts and the law
pertinent to the legality or illegality of petitioner's
detention and to order his discharge from
confinement, should it appear satisfactorily "that
he is unlawfully imprisoned or restrained.
xxx     xxx     xxx
In point of practice, when a writ of habeas
corpus is, conformably to law, made returnable
to a court other than that issuing the writ, the
court to which the writ is returned, or the judge
thereof, possesses full authority to examine all
issues raised in the case and to settle the same.
In the language of the American jurisprudence:
"After a return to a writ, the court or judge to
whom the return is made must pass upon all
questions of both law and fact and determine the
ultimate question whether the prisoner is
wrongfully restrained of his liberty. It is
necessary for the court to determine the eight
and credibility of the evidence where the
testimony is conflicting.
". . . With further reference to habeas
corpus proceedings in Federal courts, it is
expressly provided by statute that the court or
judge before whom the prisoner may be brought
shall proceed in a summary way to determine
the facts of the case, by hearing the testimony
and arguments, and thereupon to dispose of the
prisoner as law and justice may require." (25
Am. Jur., p. 245, Emphasis ours)
In other words, the court or the judge to whom the writ is
made returnable takes the case for determination on the
merits (See 39 C.J.S. p. 603, sec. 58 and case cited
therein), and its findings, either for the release of the
detainee or for sustaining his continued custody, if not
appealed on time, can become final just as it may in an
ordinary case.
We, accordingly, have no alternative than to dismiss the
appeal.
G.R. No. 235498, July 30, 2018
 RENALYN A. MASBATE AND SPOUSES RENATO
MASBATE AND MARLYN
MASBATE, Petitioners, v. RICKY JAMES
RELUCIO, Respondent.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the
Decision2 dated January 12, 2017 and the Omnibus
Resolution3 dated October 3, 2017 of the Court of
Appeals (CA) in CA-G.R. SP No. 144406, which set
aside the Orders dated December 4, 20154 and January
7, 20165 of the Regional Trial Court of Legazpi City,
Albay, Branch 8 (RTC) in Special Proceeding (SP) No.
FC-15-239, directed the remand of the case to the RTC
for trial, and granted respondent Ricky James Relucio
(Ricky James) "temporary custody" once a month for a
period not exceeding twenty-four (24) hours over the
minor, Queenie Angel M. Relucio (Queenie), his
illegitimate daughter with petitioner Renalyn A. Masbate
(Renalyn), on top of visitation rights fixed at two (2) days
per week.
The Facts
Queenie was born on May 3, 2012 to Renalyn and Ricky
James, who had been living together with Renalyn's
parents without the benefit of marriage. Three (3) years
later, or in April 2015, the relationship ended. Renalyn
went to Manila, supposedly leaving Queenie behind in
the care and custody of her father, Ricky James.6
Ricky James alleged that on November 7, 2015,
Spouses Renata and Marlyn Masbate (Renalyn's
parents) took Queenie from the school where he had
enrolled her. When asked to give Queenie back,
Renalyn's parents refused and instead showed a copy of
a Special Power of Attorney7 (SPA) executed by Renalyn
granting full parental rights, authority, and custody over
Queenie to them. Consequently, Ricky James filed
a petition for habeas corpus and child
custody8 docketed as SP No. FC-15-239 before the
RTC (petition a quo).9
A hearing was conducted on December 3, 2015, where
Renalyn brought Queenie and expressed the desire for
her daughter to remain in her custody.10
The RTC Ruling
In an Order11 dated December 4, 2015, the RTC ruled
that the custody of three (3)-year-old Queenie rightfully
belongs to Renalyn, citing the second paragraph of
Article 213 of the Family Code, which states that "[n]o
child under seven [(7)] years of age shall be separated
from the mother x x x." The RTC likewise found that,
while Renalyn went to Manila to study dentistry and left
Queenie in the custody of her parents, her intention was
to bring Queenie to Manila at a later time. Thus, in
the fallo of said Order, the RTC declared that it will "NOT
GIVE FURTHER DUE COURSE" to the petition a quo.12
Dissatisfied, Ricky James moved for
reconsideration,13 lamenting the "[extraordinary] speed in
the issuance of the x x x award of custody over the child
to [petitioners]."14 He claimed that the hearing conducted
on December 3, 2015 was not the kind of hearing that
was procedurally contemplated under A.M. No. 03-04-
04-SC,15 otherwise known as the "Rule on Custody of
Minors and Writ of Habeas Corpus in Relation to
Custody of Minors," because the RTC merely
propounded random questions without placing the
witnesses on the stand to testify under oath. Moreover,
he was allegedly deprived of his right to due process
when the RTC refused to give further due course to the
petition  a quo.16
The motion was denied in an Order17 dated January 7,
2016, wherein the RTC emphasized that Queenie was
born out of wedlock, for which reason she shall be under
the parental authority of her mother, Renalyn, pursuant
to Article 17618 of the Family Code. In addition, the RTC
faulted Ricky James for failing to present credible
evidence in court to demonstrate that Renalyn is unfit to
take custody of their daughter.19
Aggrieved, Ricky James filed an appeal20 before the CA,
imputing error upon the RTC: (a) in not conducting a full
blown trial and not receiving evidence; (b) in granting
sole custody to Renalyn without giving paramount
consideration to the best interests of the child; and (c) in
not granting him shared custody and/or visitation
rights.21 Ricky James insisted that the tender-age
presumption in Article 213 of the Family Code is
rebuttable by evidence of the mother's neglect,
abandonment, and unemployment, among other factors,
and claimed that Renalyn abandoned Queenie when she
went to live in Manila and failed to seek employment to
support her daughter.22
For their part, Renalyn and her parents (petitioners)
moved for the outright dismissal of the appeal on the
ground that no appeal can be had against an order
denying a motion for reconsideration. In addition,
petitioners argued that being the illegitimate father of
Queenie, Ricky James has absolutely no right of custody
over her, and that Renalyn's act of entrusting the care of
Queenie to her parents was not a renunciation of
parental authority but only a temporary separation
necessitated by her need to adjust to her studies, which
she undertook to improve her and Queenie's life.23
On September 2, 2016, the case was referred to
mediation, but the parties were unable to arrive at a
settlement.24
The CA Ruling
In a Decision25 dated January 12, 2017, the CA set aside
the assailed RTC Orders and remanded the case to the
lower court for determination of who should exercise
custody over Queenie.26 The CA found that the RTC
hastily dismissed the petition a quo upon Queenie's
production in court, when the objective of the case was
to establish the allegation that Renalyn had been
neglecting Queenie, which was a question of fact that
must be resolved by trial.27 Citing Section 18 of A.M. No.
03-04-04-SC, which states that, "[a]fter trial, the court
shall render judgment awarding the custody of the minor
to the proper party considering the best interests of the
minor," the CA declared that the dismissal by the RTC of
the petition a quo was not supported by the Rules.28
Nonetheless, the CA affirmed the RTC Orders granting
custody to Renalyn "pending the outcome of the case,"
stating that only Queenie's mother, Renalyn, has
parental authority over her as she is an illegitimate child.
Further, the CA declared that the RTC must thresh out
Renalyn's capacity to raise her daughter, which shall, in
tum, determine whether or not the tender-age
presumption must be upheld, or whether Queenie's well-
being is better served with her remaining in the custody
of her maternal grandparents in the exercise of their
substitute parental authority or with Ricky James, who
was Queenie's actual custodian before the controversy.29
Finally, the CA granted Ricky James visitation rights of
two (2) days a week, with provision for additional
visitation days that may be permitted by Renalyn.30
Petitioners filed a motion for reconsideration,31 while
Ricky James filed a motion for clarification32 asking that
he be allowed to pick up Queenie from petitioners'
residence on a Friday afternoon and to return the child
on a Sunday afternoon.33 In their Comment,34petitioners
argued that the arrangement proposed by Ricky James
is not within the scope of his visitation rights, but that he
may, through Renalyn's written consent, take Queenie
home on certain family occasions.35
In its Omnibus Resolution36 dated October 3, 2017, the
CA denied petitioners' motion for reconsideration for lack
of merit, insisting on its application of the case of Bagtas
v. Santos,37 which held that a trial is still necessary to
determine the issue of custody despite the production of
the child.38 On the other hand, the CA ruled in favor of
Ricky James' motion for clarification, granting the latter
what it calls a " limited and temporary custody" that will
allow him to take Queenie out once a month, or on the
first Saturday of each month, for a period not exceeding
twenty-four (24) hours, but which shall not reduce his
visitation days fixed at two (2) days per week.39 In so
holding, the appellate court cited "humane and practical
considerations"40 and argued that it is in Queenie's best
interest to have an exclusive time with Ricky James.41
Undaunted, petitioners filed the instant petition for review
on certiorari,  maintaining that the RTC correctly
dismissed the petition a quo after the hearing on
December 3, 2015 on the grounds that: (a) the purported
custodial right that Ricky James seeks to enforce in filing
his petition has no legal basis; (b)  the petition a
quo  does not comply with the requisites for habeas
corpus  petitions involving custody of minors;
and (c) there are no more factual issues to be resolved
as it had already been admitted by Renalyn during the
hearing that she goes to Manila to study but that she
comes home every week for Queenie and whenever
there is a problem.42
Ricky James filed a Comment/Opposition43 as well as an
Urgent Omnibus Motion44 to dismiss the petition and for
immediate execution pending appeal of the Omnibus
Resolution dated October 3, 2017, claiming that the
instant petition was filed out of time and that it was
erroneous for petitioners to state that the last day of filing
fell on November 4, 2017, a Saturday, which compelled
them to file their petition on November 6, 2017, a
Monday. By his calculation, the fifteen (15)-day
reglementary period, which commenced to run upon
petitioners' receipt on October 19, 2017 of the Omnibus
Resolution dated October 3, 2017, ended on November
3, 2017, a Friday, and not on November 4, 2017.45
The Issue Before the Court
The main issue for the Court's resolution is whether or
not the CA correctly remanded the case a quo for
determination of who should exercise custody over
Queenie.
The Court's Ruling
The petition is partially meritorious.
I.
At the outset, it must be stressed that while petitioners
may have erroneously determined the expiration of the
reglementary period for filing the instant petition, which
resulted in the same being filed a day late on November
6, 2017, the Court finds it proper to overlook this
procedural lapse given the compelling merit of the
petition in the interest of substantial justice.
The Court has declared that rules on the perfection of
appeals, particularly on the period of filing thereof, must
occasionally yield to the loftier ends of substantial justice
and equity. In the same manner that the CA took
cognizance of respondent's appeal from the denial of his
motion for reconsideration of the RTC Order dated
December 4, 2015,46which is technically prohibited under
the Rules of Court, so shall this Court hold that the ends
of justice would be served better when cases are
determined, not on mere technicality or some procedural
nicety, but on the merits – after all the parties are given
full opportunity to ventilate their causes and defenses.
Lest it be forgotten, dismissal of appeals purely on
technical grounds is frowned upon. The rules of
procedure ought not to be applied in a very rigid,
technical sense, for they have been adopted to help
secure – not override – substantial justice.47
In this relation, it may not be amiss to point out that the
fundamental policy of the State, as embodied in the
Constitution in promoting and protecting the welfare of
children, shall not be disregarded by the courts by mere
technicality in resolving disputes which involve the family
and the youth.48 The State is mandated to provide
protection to those of tender years. Through its laws, it
safeguards them from everyone, even their own parents,
to the end that their eventual development as
responsible citizens and members of society shall not be
impeded, distracted or impaired by family acrimony.49
Accordingly, the Court shall delve into the substantive
arguments propounded in this case.
II.
It is settled that habeas corpus may be resorted to in
cases where "the rightful custodyof any person is
withheld from the person entitled thereto."50 In custody
cases involving minors, the writ of habeas corpus  is
prosecuted for the purpose of determining the right of
custody over a child. The grant of the writ depends on
the concurrence of the following requisites: (1) that the
petitioner has the right of custody over the minor; (2) that
the rightful custody of the minor is being withheld from
the petitioner by the respondents; and (3) that it is to the
best interest of the minor concerned to be in the custody
of petitioner and not that of the respondents.51
"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. 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. 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.'"52
As a general rule, the father and the mother shall jointly
exercise parental authority over the persons of their
common children.53 However, insofar as illegitimate
children are concerned, Article 17654 of the Family Code
states that illegitimate children shall be under the
parental authority of their mother. Accordingly,
mothers (such as Renalyn) are entitled to the sole
parental authority of their illegitimate children (such as
Queenie), notwithstanding the father's recognition of the
child. In the exercise of that authority, mothers are
consequently entitled to keep their illegitimate children in
their company, and the Court will not deprive them of
custody, absent any imperative cause showing the
mother's unfitness to exercise such authority and
care.55
In addition, Article 213 of the same Code provides for the
so-called tender-age presumption, stating that "[n]o child
under seven [(7)] years of age shall be separated from
the mother unless the court finds compelling reasons to
order otherwise." The rationale behind the rule was
explained by the Code Commission in this wise:
The general rule is recommended in order to avoid many
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. x x x56
According to jurisprudence, the following instances may
constitute "compelling reasons" to wrest away custody
from a mother over her child although under seven (7)
years of age: neglect, abandonment, unemployment,
immorality, habitual drunkenness, drug addiction,
maltreatment of the child, insanity or affliction with a
communicable disease.57
As the records show, the CA resolved to remand the
case to the RTC, ratiocinating that there is a need to
establish whether or not Renalyn has been neglecting
Queenie,58 for which reason, a trial is indispensable for
reception of evidence relative to the preservation or
overturning of the tender-age presumption under Article
213 of the Family Code.59 In opposition, petitioners
contend that the second paragraph of Article 213 of the
Family Code would not even apply in this case (so as to
determine Renalyn's unfitness as a mother) because the
said provision only applies to a situation where the
parents are married to each other.60 As basis, petitioners
rely on the Court's ruling in Pablo-Gualberto v.
Gualberto V61  (Pablo-Gualberto), the pertinent portion of
which reads:
In like manner, the word "shall" in Article 213 of the
Family Code and Section 6 of Rule 99 of the Rules of
Court has 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 of either a decree of legal separation or a de
facto separation. x x x62
For easy reference, Article 213 of the Family Code and
Section 6, Rule 99 of the Rules of Court, which were
cited in Pablo-Gualberto,  are quoted hereunder in full:
Article 213 of the Family Code
Article 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.
Section 6, Rule 99 of the Rules of Court
Section 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 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 incident 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 grandparent 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 parent may appeal
from an order made in accordance with the provisions of
this section. No child under seven years of age shall be
separated from its mother, unless the court finds there
are compelling reasons therefor.
Notably, after a careful reading of Pablo-Gualberto,  it
has been determined that the aforequoted
pronouncement therein is based on a previous child
custody case, namely, Briones v.
Miguel63(Briones), wherein the Court pertinently held as
follows:
However, the CA erroneously applied Section 6 of Rule
99 of the Rules of Court. This provision contemplates a
situation in which the parents of the minor are married to
each other but are separated either by virtue of a decree
of legal separation or because they are living
separately de facto.  In the present case, it has been
established that petitioner and Respondent Loreta were
never married. Hence, that portion of the CA Decision
allowing the child to choose which parent to live with is
deleted, but without disregarding the obligation of
petitioner to support the child.64
For guidance, the relevant issue in Briones  for which the
stated excerpt was made is actually the application of
Section 6, Rule 99 of the Rules of Court insofar as it
permits the child over ten (10) years of age to choose
which parent he prefers to live with.As the Court's
ruling in Briones  was prefaced: "[t]he Petition has no
merit. However, the assailed Decision should be
modified in regard to its erroneous application of Section
6 of Rule 99 of the Rules of Court."65 Accordingly, since
the statement in Pablo-Gualbertoinvoked by
petitioners, i.e.,  that "Article 213 and Rule 99 similarly
contemplate a situation in which the parents of the minor
are married to each other x x x," was based
on Briones,  then that same statement must be
understood according to its proper context – that is, the
issue pertaining to the right of a child to choose which
parent he prefers to live with. The reason as to why this
statement should be understood in said manner is
actually not difficult to discern: the choice of a child over
seven (7) years of age (first paragraph of Article 213 of
the Family Code) and over ten (10) years of age (Rule
99 of the Rules of Court) shall be considered in custody
disputes only between married parents because they
are, pursuant to Article 211 of the Family Code,
accorded joint parental authority over the persons of
their common children. On the other hand, this choice is
not available to an illegitimate child, much more one of
tender age such as Queenie (second paragraph of
Article 213 of the Family Code), because sole parental
authority is given only to the mother, unless she is
shown to be unfit or unsuitable (Article 176 of the Family
Code). Thus, since the issue in this case is the
application of the exception to the tender-age
presumption under the second paragraph of Article 213
of the Family Code, and not the option given to the child
under the first paragraph to choose which parent to live
with, petitioners' reliance on Pablo-Gualberto is grossly
misplaced.
In addition, it ought to be pointed out that the second
paragraph of Article 213 of the Family Code, which was
the basis of the CA's directive to remand the case, does
not even distinguish between legitimate and illegitimate
children – and hence, does not factor in whether or not
the parents are married – in declaring that "[n]o child
under seven [(7)] years of age shall be separated from
the mother unless the court finds compelling reasons to
order otherwise." "Ubi lex non distinguit nec nos
distinguere debemos.  When the law makes no
distinction, we (this Court) also ought not to recognize
any distinction."66 As such, petitioners' theory that Article
213 of the Family Code is herein inapplicable – and thus,
negates the need for the ordered remand – is not only
premised on an erroneous reading of jurisprudence, but
is also one that is fundamentally off-tangent with the law
itself.
III.
The Court cannot also subscribe to petitioners'
contention that even if there are compelling reasons to
separate Queenie from her mother, Renalyn, pursuant to
the second paragraph of Article 213 of the Family Code,
Ricky James would still not acquire custody over their
daughter because there is no provision of law granting
custody rights to an illegitimate father.67
In the event that Renalyn is found unfit or unsuitable to
care for her daughter, Article 214 of the Family Code
mandates that substitute parental authority shall be
exercised by the surviving grandparent. However, the
same Code further provides in Article 216 that "[i]n
default of parents or judicially appointed guardian, the
following persons shall exercise substitute parental
authority over the child in the order indicated:"
  Article 216. x x x
(1)
The surviving grandparent as provided in Art. 214;
(2)  allowed to do indirectly what he is prohibited to do
The oldest brother or sister, over twenty-one years of
age, unless unfit or disqualified; and
(3)
The child's actual custodian, over twenty-one years
of age, unless unfit or disqualified.
The same order of preference with respect to substitute
parental authority is reiterated in Section 13 of A.M. No.
03-04-04-SC, the "Rule on Custody of Minors and Writ
of Habeas Corpus  in Relation to Custody of Minors," to
wit:
Section 13. Provisional order awarding custody. –  After
an answer has been filed or after expiration of the period
to file it, the court may issue a provisional order awarding
custody of the minor. As far as practicable, the following
order of preference shall be observed in the award of
custody:
(a) Both parents jointly;
(b) Either parent, taking into account all relevant
considerations, especially the choice of the minor over
seven years of age and of sufficient discernment, unless
the parent chosen is unfit;
(c) The grandparent, or if there are several
grandparents, the grandparent chosen by the minor over
seven years of age and of sufficient discernment, unless
the grandparent chosen is unfit or disqualified;
(d) The eldest brother or sister over twenty-one years of
age, unless he or she is unfit or disqualified;
(e) The actual custodian of the minor over twenty-
one years of age, unless the former is unfit or
disqualified; or
(f) Any other person or institution the court may deem
suitable to provide proper care and guidance for the
minor.
It was not disputed that Ricky James was in actual
physical custody of Queenie when Renalyn left for
Manila to pursue her studies until the instant controversy
took place. As such, Ricky James had already assumed
obligations and enjoyed privileges of a custodial
character, giving him a cause of action to file a case
of habeas corpus to regain custody of Queenie as her
actual custodian.
Indeed, it may be argued that Article 176 of the Family
Code has effectively disqualified the father of an
illegitimate child from exercising substitute parental
authority under Article 216 even if he were the actual
custodian of the child under the premise that no one is
directly. However, the Court cannot adopt a rigid view,
without running afoul to the overarching consideration in
custody cases, which is the best interest of the
minor. Even way back, Article 363 of the Civil Code
provides that in all questions relating to the care,
custody, education and property of the children, the
latter's welfare is paramount.68 Under present rules, A.M.
No. 03-04-04-SC explicitly states that "[i]n awarding
custody, the court shall consider the best interests of the
minor and shall give paramount consideration to [her]
material and moral welfare. The best interests of the
minor refer to the totality of the circumstances and
conditions as are most congenial to the survival,
protection, and feelings of security of the minor
encouraging to [her] physical, psychological and
emotional development. It also means the least
detrimental available alternative for safeguarding the
growth and development of the minor."69
In light of the foregoing, the Court finds that Queenie's
best interest demands that a proper trial be conducted to
determine if she had, indeed, been neglected and
abandoned by her mother, rendering the latter unfit to
exercise parental authority over her, and in the event
that Renalyn is found unsuitable, whether it is in
Queenie's best interest that she be in the custody of her
father rather than her grandparents upon whom the law
accords a far superior right to exercise substitute
parental authority. In the case of Bagtas v.
Santos,70 which was a tug-of-war between the maternal
grandparents of the illegitimate minor child and the
actual custodians of the latter, the Court faulted the trial
court for hastily dismissing the petition for habeas
corpus  and awarding the custody of the minor to the
grandparents without conducting any trial. The import of
such decision is that the preference accorded by Article
216 of the Family Code does not automatically attach to
the grandparents, and is conditioned upon the
determination of their fitness to take care of their
grandchild. In ruling as it did, the Court ratiocinated that
the child's welfare being the most important
consideration, it is not bound by any legal right of a
person over the child. Reiterating its pronouncement in
the early case of Sombong v. CA,71 the Court held that:
[I]n passing on the writ in a child custody case, the court
deals with a matter of an equitable nature. Not bound by
any mere legal right of parent or guardian, the court
gives his or her claim to the custody of the child due
weight as a claim founded on human nature and
considered generally equitable and just Therefore, these
cases are decided, not on the legal right of the petitioner
to be relieved from unlawful imprisonment or detention,
as in the case of adults, but on the court's view of the
best interests of those whose welfare requires that they
be in custody of one person or another. Hence, the court
is not bound to deliver a child into the custody of any
claimant or of any person, but should, in the
consideration of the facts, leave it in such custody as its
welfare at the time appears to require. In short, the
child's welfare is the supreme consideration.
Considering that the child's welfare is an all-important
factor in custody cases, the Child and Youth Welfare
Code unequivocally provides that in all questions
regarding the care and custody, among others, of the
child, his welfare shall be the paramount consideration.
In the same vein, the Family Code authorizes the courts
to, if the welfare of the child so demands, deprive the
parents concerned of parental authority over the child or
adopt such measures as may be proper under the
circumstances.72
The Court cannot close its eyes to the sad reality that not
all fathers, especially those who have sired children out
of wedlock, have risen to the full height of a parent's
responsibility towards his offspring. Yet, here is a father
of an illegitimate child who is very much willing to take on
the whole gamut of parenting. He, thus, deserves, at the
very least, to be given his day in court to prove that he is
entitled to regain custody of his daughter. As such, the
CA's order to remand the case is proper.
IV.
While the appellate court correctly remanded the case
for trial, the Court, however, holds that it erred in
granting Ricky James temporary custody for a limited
period of twenty-four (24) consecutive hours once every
month, in addition to visitation rights, invoking "humane
and practical considerations,"73 which were based solely
on Ricky James' allegations.
It should be stressed that Section 15 of A.M. No. 03-04-
04-SC provides for temporary visitation
rights, not temporary custody, as follows:
Section 15. Temporary visitation rights. – The court shall
provide in its order awarding provisional custody
appropriate visitation rights to the non-custodial parent or
parents, unless the court finds said parent or parents
unfit or disqualified.
The temporary custodian shall give the court and non-
custodial parent or parents at least five days' notice of
any plan to change the residence of the minor or take
him out of his residence for more than three days
provided it does not prejudice the visitation rights of the
non-custodial parent or parents.
It is only after trial, when the court renders its judgment
awarding the custody of the minor to the proper party,
that the court may likewise issue "any order that is just
and reasonable permitting the parent who is deprived of
the care and custody of the minor to visit or have
temporary custody," pursuant to Section 18 of A.M. No.
03-04-04-SC, to wit:
Section 18. Judgment.  –  After trial, the court shall render
judgment awarding the custody of the minor to the
proper party considering the best interests of the minor.
If it appears that both parties are unfit to have the care
and custody of the minor, the court may designate either
the paternal or maternal grandparent of the minor, or his
oldest brother or sister, or any reputable person to take
charge of such minor, or to commit him to any suitable
home for children.
In its judgment, the court may order either or both
parents to give an amount necessary for the support,
maintenance and education of the minor, irrespective of
who may be its custodian. In determining the amount of
support, the court may consider the following factors: (1)
the financial resources of the custodial and non-custodial
parent and those of the minor; (2) the physical and
emotional health, special needs, and aptitude of the
minor; (3) the standard of living the minor has been
accustomed to; and (4) the non-monetary contributions
that the parents would make toward the care and well-
being of the minor.
The court may also issue any order that is just and
reasonable permitting the parent who is deprived of
the care and custody of the minor to visit or have
temporary custody. (Emphasis supplied)
By granting temporary albeit limited custody ahead of
trial, the appellate court overturned the tender-age
presumption with nothing but Ricky James' bare
allegations, to which the Court cannot give its
imprimatur. As earlier intimated, the issue surrounding
Renalyn's fitness as a mother must be properly threshed
out in the trial court before she can be denied custody,
even for the briefest of periods, over Queenie.
In view of the disposition in Silva and Briones  and the
rules quoted above, the Court can only uphold Ricky
James' visitation rights, which shall be limited to two (2)
days per week, without prejudice to Renalyn allowing
him additional days. However, consistent with the
aforesaid cases, as well as the more recent case
of Grande v. Antonio,74 Ricky James may take Queenie
out only upon the written consent of Renalyn. Contrary to
the posturing75 of the appellate court, the requirement for
the consent of the mother is consistent with the regime
of sole maternal custody under the second paragraph of
Article 213 of the Family Code with respect to children
under seven (7) years of age, which may be overcome
only by compelling evidence of the mother's
unfitness.76 Until and unless Ricky James is able to
substantiate his allegations, he can only claim visitation
rights over his daughter.

WHEREFORE, the petition is PARTLY GRANTED. The

Decision dated January 12, 2017 and the Omnibus
Resolution dated October 3, 2017 of the Court of
Appeals in CA-G.R. SP No. 144406 are
hereby AFFIRMED with the MODIFICATION deleting
the grant of limited and temporary custody for lack of
legal and factual basis. The grant of visitation rights of
two (2) days per week shall be maintained. Respondent
Ricky James Relucio may take his daughter, Queenie
Angel M. Relucio, out but only with the written consent of
petitioner Renalyn A. Masbate in accordance with this
Decision.

The Regional Trial Court of Legazpi City, Albay, Branch

8 is DIRECTED to immediately proceed with hearing
Special Proceeding No. FC-15-239 upon notice of this
Decision.