CHARMAINE I.

JALA

07/18/2018

EDWIN N. TRIBIANA vs. LOURDES M. TRIBIANA

G.R. No. 137359             September 13, 2004

Facts:

Edwin and Lourdes are husband and wife who have lived together since 1996 but formalized
their union only on 28 October 1997. On 30 April 1998, Lourdes filed a petition for  habeas
corpus before the RTC claiming that Edwin left their conjugal home with their daughter,
Khriza Mae Tribiana ("Khriza"). Edwin has since deprived Lourdes of lawful custody of Khriza
who was then only one (1) year and four (4) months of age. Later, it turned out that Khriza
was being held by Edwin’s mother, Rosalina Tribiana ("Rosalina"). Edwin moved to dismiss
Lourdes’ petition on the ground that the petition failed to allege that earnest efforts at a
compromise were made before its filing as required by Article 151 of the Family Code.

On 20 May 1998, Lourdes filed her opposition to Edwin’s motion to dismiss claiming that
there were prior efforts at a compromise, which failed. Lourdes attached to her opposition a
copy of the Certification to File Action from their Barangay dated 1 May 1998.

Issue: Whether or not the petition for habeas corpus should be dismissed for failure to
comply with the condition precedent which earnest effort to reach a compromise.

HELD: NO.

It is true that the petition for habeas corpus filed by Lourdes failed to allege that she
resorted to compromise proceedings before filing the petition. However, in her opposition to
Edwin’s motion to dismiss, Lourdes attached a Barangay Certification to File Action dated 1
May 1998. Edwin does not dispute the authenticity of the Barangay Certification and its
contents. This effectively established that the parties tried to compromise but were
unsuccessful in their efforts.

Evidently, Lourdes has complied with the condition precedent under Article 151 of the
Family Code. A dismissal under Section 1(j) of Rule 16 is warranted only if there is a failure
to comply with a condition precedent. Given that the alleged defect is a mere failure to
allege compliance with a condition precedent, the proper solution is not an outright
dismissal of the action, but an amendment under Section 1 of Rule 10 of the 1997 Rules of
Civil Procedure.

In addition, the failure of a party to comply with a condition precedent is not a jurisdictional
defect. Such defect does not place the controversy beyond the court’s power to resolve. If a
party fails to raise such defect in a motion to dismiss, such defect is deemed waived.  Such
defect is curable by amendment as a matter of right without leave of court, if made before
the filing of a responsive pleading. A motion to dismiss is not a responsive pleading. More
importantly, an amendment alleging compliance with a condition precedent is not a
jurisdictional matter. Neither does it alter the cause of action of a petition for habeas
corpus. We have held that in cases where the defect consists of the failure to state
compliance with a condition precedent, the trial court should order the amendment of the
complaint. Courts should be liberal in allowing amendments to pleadings to avoid
multiplicity of suits and to present the real controversies between the parties.

Moreover, in a habeas corpus proceeding involving the welfare and custody of a child of

tender age, the paramount concern is to resolve immediately the issue of who has legal
custody of the child. Technicalities should not stand in the way of giving such child of tender
age full protection.12 This rule has sound statutory basis in Article 213 of the Family Code,
which states, "No child under seven years of age shall be separated from the mother unless
the court finds compelling reasons to order otherwise." In this case, the child (Khriza) was
only one year and four months when taken away from the mother.
 SPOUSES DE MESA vs. SPOUSES ACERO
G.R. No. 185064               January 16, 2012

Facts

The petitioner Sps. De Mesa jointly purchased the subject property in Meycauayan, Bulacan
on April 17, 1984 while they were still merely cohabiting before their marriage. A house was
later constructed on the subject property, which the petitioners thereafter occupied as their
family home after they got married sometime in January 1987.

Sometime in September 1988, Araceli obtained a loan from Claudio D. Acero, Jr. (Claudio)
in the amount of ₱100,000.00, which was secured by a mortgage over the subject property.
As payment, Araceli issued a check drawn against China Banking Corporation payable to
Claudio.

When the check was presented for payment, it was dishonored as the account from which it
was drawn had already been closed. The petitioners failed to heed Claudio’s subsequent
demand for payment.

Thus, on April 26, 1990, Claudio filed with the Prosecutor's Office of Malolos, Bulacan a
complaint for violation of Batas Pambansa Blg. 22 (B.P. 22) against the petitioners.

On October 21, 1992, the RTC rendered a Decision 3 acquitting the petitioners but ordering
them to pay Claudio the amount of ₱100,000.00 with legal interest from date of demand
until fully paid.

On March 15, 1993, a writ of execution was issued and Sheriff Samonte levied upon the
subject property. On March 9, 1994, the subject property was sold on public auction;
Claudio was the highest bidder and the corresponding certificate of sale was issued to him.

ISSUE:
Whether or not the levied property is a family home. YES
Whether or not the property was properly levied. YES

HELD:

The subject property is a family home.

The petitioners maintain that the subject property is a family home and, accordingly, the
sale thereof on execution was a nullity.

For the family home to be exempt from execution, distinction must be made as to what law
applies based on when it was constituted and what requirements must be complied with by
the judgment debtor or his successors claiming such privilege. Hence, two sets of rules are
applicable.

If the family home was constructed before the effectivity of the Family Code or before
August 3, 1988, then it must have been constituted either judicially or extra-
judicially as provided under Articles 225, 229-231 and 233 of the Civil Code.
Judicial constitution of the family home requires the filing of a verified petition before the
courts and the registration of the court’s order with the Registry of Deeds of the area where
the property is located. Meanwhile, extrajudicial constitution is governed by Articles 240 to
242 of the Civil Code and involves the execution of a public instrument which must also be
registered with the Registry of Property. Failure to comply with either one of these two
modes of constitution will bar a judgment debtor from availing of the privilege.

On the other hand, for family homes constructed after the effectivity of the Family Code on
August 3, 1988, there is no need to constitute extrajudicially or judicially, and the
exemption is effective from the time it was constituted and lasts as long as any of its
beneficiaries under Art. 154 actually resides therein. Moreover, the family home should
belong to the absolute community or conjugal partnership, or if exclusively by one spouse,
its constitution must have been with consent of the other, and its value must not exceed
certain amounts depending upon the area where it is located. Further, the debts incurred for
which the exemption does not apply as provided under Art. 155 for which the family home
is made answerable must have been incurred after August 3, 1988.
Under the Family Code, there is no need to constitute the family home judicially or
extrajudicially. All family homes constructed after the effectivity of the Family Code (August
3, 1988) are constituted as such by operation of law. All existing family residences as of
August 3, 1988 are considered family homes and are prospectively entitled to the
benefits accorded to a family home under the Family Code.

Here, the subject property became a family residence sometime in January 1987. There was
no showing, however, that the same was judicially or extrajudicially constituted as a family
home in accordance with the provisions of the Civil Code. Still, when the Family Code took
effect on August 3, 1988, the subject property became a family home by operation of law
and was thus prospectively exempt from execution. The petitioners were thus correct in
asserting that the subject property was a family home.

The family home’s exemption from execution must be set up and proved to the
Sheriff before the sale of the property at public auction.

In the light of the facts above summarized, it is evident that appellants did not assert their
claim of exemption within a reasonable time. Certainly, reasonable time, for purposes of the
law on exemption, does not mean a time after the expiration of the one-year period
provided for in Section 30 of Rule 39 of the Rules of Court for judgment debtors to redeem
the property sold on execution, otherwise it would render nugatory final bills of sale on
execution and defeat the very purpose of execution – to put an end to litigation. x x x.

While it is true that the family home is constituted on a house and lot from the time it is
occupied as a family residence and is exempt from execution or forced sale under Article
153 of the Family Code, such claim for exemption should be set up and proved to the
Sheriff before the sale of the property at public auction. Failure to do so would estop the
party from later claiming the exemption.

The settled rule is that the right to exemption or forced sale under Article 153 of
the Family Code is a personal privilege granted to the judgment debtor and as
such, it must be claimed not by the sheriff, but by the debtor himself before the
sale of the property at public auction. It is not sufficient that the person claiming
exemption merely alleges that such property is a family home. This claim for exemption
must be set up and proved to the Sheriff. x x x.

Having failed to set up and prove to the sheriff the supposed exemption of the subject
property before the sale thereof at public auction, the petitioners now are barred from
raising the same. Failure to do so estop them from later claiming the said exemption.
 EUGENIO SAN JUAN GERONIMO vs. KAREN SANTOS
G.R. No. 197099

FACTS: On April 17, 2001, plaintiff Karen Santos, claiming to be the only child of deceased
Rufino and Caridad Geronimo filed a complaint for annulment of document and recovery of
possession against the defendants Eugenio and Emiliano Geronimo who are the brothers of
her father.

She alleged that with the death of her parents, the property consisting of one half of the
parcel of land located at San Jose, Paombong, Bulacan and belonging to her parents was
passed on to her by the law on intestacy; that lately, she discovered that defendants
executed a document entitled Pagmamana sa Labas ng Hukuman declaring themselves as
the only heirs of spouses Rufino and Caridad and adjudicating to themselves the property in
question; and that consequently[,] they took possession and were able to transfer the tax
declaration of the subject property to their names. She prayed that the document Exhibit C
be annulled and the tax declaration of the land transferred to her, and that the defendants
vacate the property and pay her damages.

In an amended answer, the defendants denied the allegation that plaintiff was the only child
and sole heir of their brother. They disclosed that the deceased Rufino and Caridad
Geronimo were childless and took in as their ward the plaintiff who was in truth, the child of
Caridad’s sister. They claimed that the birth certificate of the plaintiff was a simulated
document.

Eugenio Geronimo, the defendant, disputes the allegation that the plaintiff is the only child
and legal heir of his brother Rufino. He disclosed that when Rufino’s wife could not bear a
child, the couple decided to adopt the plaintiff who was Caridad’s niece from Sta. Maria,
Ilocos Sur.

Eugenio was able to obtain a copy of the plaintiff’s alleged birth certificate. It had irregular
features, such as that it was written in pentel pen, the entry in the box  date of birth was
erased and the word and figure April 6, 1972 written and the name Emma Daño was
superimposed on the entry in the box intended for the informant’s signature.

Two more witnesses were adduced. Atty. Elmer Lopez, a legal consultant of the DECS in
Bulacan brought the plaintiff's service record as an elementary school teacher at
Paombong[,] Bulacan to show that she did not have any maternity leave during the period
of her service from March 11, 1963 to October 24, 1984, and a certification from the
Schools Division Superintendent that the plaintiff did not file any maternity leave during her
service.

The trial court ruled that respondent is the legal heir – being the legitimate child – of the
deceased spouses Rufino and Caridad Geronimo (spouses Rufino and Caridad).

The court ruled plaintiff has proven her filiation by open and continuous possession of the
status of a legitimate child. The evidence consists of the following: (1) the plaintiff was
allowed by her putative parents to bear their family name Geronimo; (2) they supported her
and sent her to school paying for her tuition fees and other school expenses; (3) she was
the beneficiary of the burial benefits of Caridad before the GSIS; (4) after the death of
Rufino, Caridad applied for and was appointed legal guardian of the person and property of
the plaintiff from the estate left by Rufino; and (5) both Caridad and the plaintiff executed
an extrajudicial settlement of the estate of Rufino on the basis of the fact that they are both
the legal heirs of the deceased.

ISSUE:
Whether or not secondary evidence may be admitted to establish filiation despite
presence of primary evidence. YES

Whether or not the respondent may impugn the filiation in this case. YES

HELD:
Well settled is the rule that the issue of legitimacy cannot be attacked collaterally.

"The presumption of legitimacy in the Family Code x x x actually fixes a civil status for the
child born in wedlock, and that civil status cannot be attacked collaterally. The legitimacy of
the child can be impugned only in a direct action brought for that purpose, by the proper
parties, and within the period limited by law.

The legitimacy of the child cannot be contested by way of defense or as a

collateral issue in another action for a different purpose xxx."

This action can be brought only by the husband or his heirs and within the periods fixed in
the present articles.

Upon the expiration of the periods provided in Article 170, the action to impugn the
legitimacy of a child can no longer be brought. The status conferred by the presumption,
therefore, becomes fixed, and can no longer be questioned.1âwphi1 

Only the husband can contest the legitimacy of a child born to his wife. It is only in
exceptional cases that his heirs are allowed to contest such legitimacy. Outside of these
cases, none – even his heirs – can impugn legitimacy; that would amount to an insult to his
memory."

What petitioner failed to recognize, however, is that this procedural rule is applicable only to
actions where the legitimacy – or illegitimacy – of a child is at issue. This situation does not
obtain in the case at bar.

In the instant case, the filiation of a child – herein respondent – is not at issue. Petitioner
does not claim that respondent is not the legitimate child of his deceased brother Rufino and
his wife Caridad. What petitioner alleges is that respondent is not the child of the deceased
spouses Rufino and Caridad at all. He proffers this allegation in his Amended Answer before
the trial court by way of defense that respondent is not an heir to his brother Rufino. When
petitioner alleged that respondent is not a child of the deceased spouses Rufino and Caridad
in the proceedings below, jurisprudence shows that the trial court was correct in admitting
and ruling on the secondary evidence of respondent – even if such proof is similar to the
evidence admissible under the second paragraph of Article 172 and despite the instant case
not being a direct action to prove one’s filiation. In the following cases, the courts a quo and
this Court did not bar the introduction of secondary evidence in actions which involve
allegations that the opposing party is not the child of a particular couple – even if such
evidence is similar to the kind of proof admissible under the second paragraph of Article
172.
 GRACE M. GRANDE vs. PATRICIO T. ANTONIO
G.R. No. 206248               February 18, 2014

FACTS:

Petitioner Grace Grande (Grande) and respondent Patricio Antonio (Antonio) for a period of
time lived together as husband and wife, although Antonio was at that time already married
to someone else.3 Out of this illicit relationship, two sons were born: Andre Lewis (on
February 8, 1998) and Jerard Patrick (on October 13, 1999). 4 The children were not
expressly recognized by respondent as his own in the Record of Births of the children in the
Civil Registry. The parties’ relationship, however, eventually turned sour, and Grande left for
the United States with her two children in May 2007. This prompted respondent Antonio to
file a Petition for Judicial Approval of Recognition with Prayer to take Parental Authority,
Parental Physical Custody, Correction/Change of Surname of Minors and for the Issuance of
Writ of Preliminary Injunction before the Regional Trial Court, Branch 8 of Aparri, Cagayan
(RTC), appending a notarized Deed of Voluntary Recognition of Paternity of the children. 5

ISSUE: May the father compel that his illegitimate children use his surname upon
his recognition. NO

HELD:

Art. 176. – Illegitimate children shall use the surname and shall be under the parental
authority of their mother, and shall be entitled to support in conformity with this Code.
However, illegitimate children may use the surname of their father if their filiation has been
expressly recognized by their father through the record of birth appearing in the civil
register, or when an admission in a public document or private handwritten instrument is
made by the father. Provided, the father has the right to institute an action before the
regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate
child shall consist of one-half of the legitime of a legitimate child.

From the foregoing provisions, it is clear that the general rule is that an illegitimate child
shall use the surname of his or her mother. The exception provided by RA 9255 is, in case
his or her filiation is expressly recognized by the father through the record of birth
appearing in the civil register or when an admission in a public document or private
handwritten instrument is made by the father. In such a situation, the illegitimate child may
use the surname of the father.

In the case at bar, respondent filed a petition for judicial approval of recognition of the
filiation of the two children with the prayer for the correction or change of the surname of
the minors from Grande to Antonio when a public document acknowledged before a notary
public under Sec. 19, Rule 132 of the Rules of Court is enough to establish the paternity of
his children.

Is there a legal basis for the court a quo to order the change of the surname to that of
respondent?

Clearly, there is none. Otherwise, the order or ruling will contravene the explicit and
unequivocal provision of Art. 176 of the Family Code, as amended by RA 9255.

Art. 176 gives illegitimate children the right to decide if they want to use the surname of
their father or not. It is not the father (herein respondent) or the mother (herein petitioner)
who is granted by law the right to dictate the surname of their illegitimate children.