Tamargo v.
CA Petition for Review is hereby GRANTED DUE COURSE and the
FACTS:
Adelberto Bundoc, then a minor of 10 years of age, shot
Jennifer Tamargo with an air rifle which resulted in her death.
Accordingly, a civil complaint for damages was filed with the
RTC of Vigan, Ilocos Sur by petitioners, parents of Jennifer,
against respondent spouses, Adelberto’s natural parents with
whom he was living at the time of the tragic incident. In addition
to this case for damages, a criminal information or Homicide
through Reckless Imprudence was filed against Adelberto, who
was acquitted and exempted from criminal liability on the ground
that he bad acted without discernment.
Prior to the incident the spouses Rapisura had filed a petition to
adopt the minor Adelberto before the then CFI of Ilocos Sur.
This petition for adoption was granted after Adelberto had shot
and killed Jennifer
In their Answer, respondent spouses, Adelberto’s natural
parents, claimed that not they, but rather the adopting parents
were indispensable parties to the action since parental authority
had shifted to the adopting parents from the moment the
successful petition for adoption was filed.
The trial court ruled against the adopting parents, who filed an
MR which was later denied for being filed beyond the
reglementary period. Petitioners went to the CA on a petition for
mandamus and certiorari questioning the trial court’s decision.
The CA dismissed the petition, ruling that petitioners had lost
their right to appeal. Hence this petition for review
ISSUE: Who should be responsible for the tortuous act of the
minor Adelberto, his natural parents or adopting parents?
HELD:
Decision of the CA is hereby REVERSED and SET ASIDE.
Petitioners’ complaint filed before the trial court is hereby
REINSTATED and this case is REMANDED to that court for
further proceedings
Natural parents.
It is not disputed that Adelberto’s voluntary act of shooting
Jennifer with an air rifle gave rise to a cause of action on quasi-
delict against him. As Article 2176 of the Civil Code provides:
Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict . . .
Upon the other hand, the law imposes civil liability upon the
father and, in case of his death or incapacity, the mother, for
any damages that may be caused by a minor child who lives
with them. Article 2180 of the Civil Code reads:
The obligation imposed by article 2176 is demandable not only
for one’s own acts or omissions, but also for those of persons
for whom one is responsible.
The father and, in case of his death or incapacity, the mother,
are responsible for the damages caused by the minor children
who live in their company.
The responsibility treated of in this Article shall cease when the
person herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.
(Emphasis supplied)
The natural parent spouses rely on Article 36 of the Child and
Youth Welfare Code 8 which reads as follows:
Art. 36. Decree of Adoption. — If, after considering the report of
the Department of Social Welfare or duly licensed child
placement agency and the evidence submitted before it, the
court is satisfied that the petitioner is qualified to maintain, care
for, and educate the child, that the trial custody period has been
completed, and that the best interests of the child will be
promoted by the adoption, a decree of adoption shall be
entered, which shall be effective he date the original petition
was filed. The decree shall state the name by which the child is
thenceforth to be known.
The Bundoc spouses further argue that the above Article 36
should be read in relation to Article 39 of the same Code:
Art. 39. Effect of Adoption. — The adoption shall:
(2) Dissolve the authority vested in the natural parents, except
where the adopter is the spouse of the surviving natural parent;
and urge that their Parental authority must be deemed to have
been dissolved as of the time the Petition for adoption was filed.
The Court is not persuaded. As earlier noted, under the Civil
Code, the basis of parental liability for the torts of a minor child
is the relationship existing between the parents and the minor
child living with them and over whom, the law presumes, the
parents exercise supervision and control.
Article 221 of the Family Code of the Philippines insisted upon
the requisite that the child, doer of the tortious act, shall have
been in the actual custody of the parents sought to be held liable
for the ensuing damage:
Art. 221. Parents and other persons exercising parental
authority shall be civilly liable for the injuries and damages
caused by the acts or omissions of their unemancipated children
living in their company and under their parental authority subject
to the appropriate defenses provided by law.
In the instant case, however, to hold that parental authority had
been retroactively lodged in the Rapisura spouses so as to
burden them with liability for a tortious act that they could not
have foreseen and which they could not have prevented (since
they were at the time in the United States and had no physical
custody over the child Adelberto) would be unfair and
unconscionable. Such a result, moreover, would be inconsistent
with the philosophical and policy basis underlying the doctrine
of vicarious liability. Put a little differently, no presumption of
parental dereliction on the part of the adopting parents, the
Rapisura spouses, could have arisen since Adelberto was not
in fact subject to their control at the time the tort was committed.
Sagala-Eslao v. CA
Facts:
On June 22, 1984, petitioner Maria Paz Cordero-Ouye and
Reynaldo Eslao were married. After their marriage, the couple
stayed with respondent Teresita Eslao, mother of the husband,
at 1825, Road 14, Fabie Estate, Paco, Manila. Out of their
marriage, two children were begotten, namely, Leslie Eslao and
Angelica Eslao.
Leslie was entrusted to the care and custody of petitioner’s
mother while Angelica stayed with her parents at respondent’s
house. Reynaldo Eslao died. Petitioner intended to bring
Angelica with her to Pampanga but the respondent prevailed
upon her to entrust the custody of Angelica to her, respondent
reasoning out that her son just died and to assuage her grief
therefor, she needed the company of the child to at least
compensate for the loss of her late son.
Subsequently, petitioner was introduced to Dr. James Manabu-
Ouye, a Japanese-American. Their acquaintance blossomed
into a marriage and the petitioner migrated to San Francisco,
California, USA, to join her new husband. The petitioner
returned to the Philippines to be reunited with her children and
bring them to the United States. The petitioner then informed
the respondent about her desire to take custody of Angelica and
explained that her present husband, Dr. Ouye, expressed his
willingness to adopt Leslie and Angelica and to provide for their
support and education;
Respondent resisted the idea by way of explaining that the child
was entrusted to her when she was ten days old and accused
the petitioner of having abandoned Angelica.
The lower court rendered its decision ordering respondent to
cause the immediate transfer of the custody of the Angelica to
her natural mother. The Court of Appeals affirmed the lower
court’s decision.
Held:
The petition is without merit.
Petitioner argues that she would be deserving to take care of
Angelica; that she had managed to raise 12 children of her own
herself; that she has the financial means to carry out her plans
for Angelica; that she maintains a store which earns a net
income of about P500 a day, she gets P900 a month as pension
for the death of her husband, she rents out rooms in her house
which she owns, for which she earns a total of P6,000 a month,
and that from her gross income of roughly P21,000, she spends
about P10,000 for the maintenance of her house.
On the other hand, the side of the petitioner must also be
presented here. In this case, we see a picture of a real and
natural mother who is -
x x x legitimately, anxiously, and desperately trying to get back
her child in order to fill the void in her heart and existence. She
wants to make up for what she has failed to do for her boy during
the period when she was financially unable to help him and
when she could not have him in her house because of the
objection of the father. Now that she has her own home and is
in a better financial condition, she wants her child back, and we
repeat that she has not and has never given him up definitely or
with any idea of permanence.
The petitioner herein is married to an Orthodontist who has a
lucrative practice of his profession in San Francisco, California,
USA. The petitioner and her present husband have a home of
their own and they have three cars. The petitioners husband is
willing to adopt the petitioners children. If the children will be
with their mother, the probability is that they will be afforded a
bright future. Contrast this situation with the one prevailing in
the respondents [grandmothers] house.
As admitted by the respondent, four of the rooms in her house
are being rented to other persons with each room occupied by
4 to 5 persons. Added to these persons are the respondents 2
sons, Samuel and Alfredo, and their respective families (ibid., p.
54) and one can just visualize the kind of atmosphere pervading
thereat. And to aggravate the situation, the house has only 2
toilets and 3 faucets. Finally, considering that in all
controversies involving the custody of minors, the foremost
criterion is the physical and moral well being of the child taking
into account the respective resources and social and moral
situations of the contending parties (Union III vs. Mariano, 101
SCRA 183), the Court is left with no other recourse but to grant
the writ prayed for.
Petitioner also argues that it has been amply demonstrated
during the trial that private respondent had indeed abandoned
Angelica to the care and custody of the petitioner; that during all
the time that Angelica stayed with petitioner, there were only
three instances or occasions wherein the private respondent
saw Angelica; that private respondent never visited Angelica on
important occasions, such as her birthday, and neither did the
former give her cards or gifts, not even a single candy;11 that
while private respondent claims otherwise and that she visited
Angelica "many times" an insists that she visited Angelica as
often as four times a month and gave her remembrances such
as candies and clothes, she would not even remember when
the fourth birthday of Angelica was.
We are not persuaded by such averments.
Parental authority and responsibility are inalienable and may
not be transferred or renounced except in cases authorized by
law.15 The right attached to parental authority, being purely
personal, the law allows a waiver of parental authority only in
cases of adoption, guardianship and surrender to a childrens
home or an orphan institution.16 When a parent entrusts the
custody of a minor to another, such as a friend or godfather,
even in a document, what is given is merely temporary custody
and it does not constitute a renunciation of parental authority.17
Even if a definite renunciation is manifest, the law still disallows
the same.18
The father and mother, being the natural guardians of
unemancipated children, are duty-bound and entitled to keep
them in their custody and company.
Thus, in the instant petition, when private respondent entrusted
the custody of her minor child to the petitioner, what she gave
to the latter was merely temporary custody and it did not
constitute abandonment or renunciation of parental authority.
For the right attached to parental authority, being purely
personal, the law allows a waiver of parental authority only in
cases of adoption, guardianship and surrender to a childrens
home or an orphan institution which do not appear in the case
at bar.
Of considerable importance is the rule long accepted by the
courts that the right of parents to the custody of their minor
children is one of the natural rights incident to parenthood, a
right supported by law and sound public policy. The right is an
inherent one, which is not created by the state or decisions of
the courts, but derives from the nature of the parental
relationship.20
IN VIEW WHEREOF, the decision appealed from dated March
25, 1994 being in accordance with law and the evidence, the
same is hereby AFFIRMED and the petition DISMISSED for
lack of merit.
Dempsey v. RTC
Facts:
Two separate informations were filed against respondent Joel
Dempsey before the Municipal Trial Court, Branch II, Olongapo
City charging him with violation of Article 59 (par. 2) of P.D. 603
and Article 46, par. 8 of P.D. 603.
Criminal Case No. 68-86
That on or about and during the period from December 1985 to
the present, in the City of Olongapo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused
did then and there wilfully, unlawfully and feloniously leave their
conjugal dwelling at No. 15 Ohio Street, Upper Kalaklan,
Olongapo City and abandon his child Christina R. Dempsey and
deprive him (sic) of his love, care and protection she from the
accused (sic) since then, by continuously failing and refusing to
give adequate support to the said minor child and despite pleas,
the accused without lawful justification, failed, disregarded and
still continues to fail and disregard to perform his obligations to
his said minor child Christina R. Dempsey,
Criminal Case No. 69-86
That on or about and during the period from December 1985 to
the present, in the City of Olongapo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
did then and there wilfully, unlawfully and criminally fail and
refuse to provide his child Christina R. Dempsey with adequate
support, as defined in Article 290 of the Civil Code, despite the
fact that he is capable of supporting his child, and despite pleas,
the accused without lawful justification, failed and refused and
still fails and refuses to provide his child with adequate support,
to the damage and prejudice of the said child.
The testimony of complainant Janalita Rapada purports to show
that in her cohabitation with the accused, without the benefit of
marriage, Christina Marie was born on October 01, 1984, at the
St. Jude's Family Clinic, Olongapo City where she delivered the
child. Her birth certificate, Exhibit "A" bears an entry of the name
of the accused as the father and Exhibit "A-1 " the Affidavit of
the Acknowledgment duly signed by him.
At the present, the child receives a monthly support from the
accused in the sum of $150.00 thru the child's mother, Janalita
Rapada. Aside from this monthly support, Janalita Rapada
obtained a promise from the accused to declare Christina Marie
as his dependent and also a commitment to declare the child
after his citizenship. This will entitle the child for all the benefits
and privileges extended to dependents of American US Navy
servicemen like free medical check-up. Efforts were made with
the Naval Legal Service Office, US Naval Facilities, Subic Bay,
Philippines to compel the accused to fulfill these commitments
but to no avail. To seek redress thru the Court, she engaged the
services of Atty. Estanislao L. Cesa, Jr., offering P5,000.00 as
Attorney's fee payable after the cases are decided.
At the Naval Legal Service Office, someone entertained her
demand for the accused to declare Christina Marie as his
dependent and after his American citizenship. She was of the
belief that these could be done not knowing that the American
who entertained her demands had no authority to effect the
same. (Rollo, pp. 21-22)
Upon arraignment, the private respondent freely, voluntarily,
and spontaneously entered a plea of guilty to the offense
charged in the Information.
RTC Decision
Finding the accused guilty beyond reasonable doubt of the
charges against him, considering the mitigating circumstances
of his voluntary plea of guilty.
For the civil liability, judgment is rendered against accused Joel
Dempsey confirming the payment of US $150.00 monthly
support to Christina Marie and to continue payment thru Janalita
Rapada, to be used solely for the needs of the child until she
reaches the age of majority; to recognize the child Christina
Marie as his natural child; to pay Christina Marie thru Janalita
Rapada the sum of P10,000.00 as exemplary damage; and to
pay the sum of P5,000.00 as attorney's fee to Atty. Manuel
Rosapapan as Chairman of the Committee on Legal Aid of the
IBP Chapter of Zambales Olongapo City and the same to form
part of the legal aid fund.
The private respondent appealed the municipal trial court's
decision to the regional trial court and prayed that the award on
civil liability be set aside and the penalty of imprisonment be
reduced to a penalty of fine only.
In a decision rendered on November 28, 1986, the respondent
regional trial court reversed the municipal trial court's decision
on the following grounds:
1. Parental authority to which certain parental obligations are
attached pertains only to legitimate and adopted children unlike
petitioner who is an acknowledged illegitimate minor child of
private respondent; that in cases of abandonment of minors, the
proper forum is the Department of Social Welfare where the
person to whom the minor has been left must report immediately
(Art. 161, P.D. 603).
2. A person cannot he held criminally liable for failure to support
a minor child.
Held:
We find merit in the instant petition.
The respondent court committed reversible error when it failed
to take into account that the decision of the municipal trial court
was based on the private respondent's plea of guilty.
Respondent Joel Dempsey did not and does not challenge the
validity of Presidential Decree No. 603, Articles 46 and 59 on
certain obligations of parents to their children and Articles 60
and 210 penalizing violations of mandatory provisions. As a
matter of fact, respondent Dempsey's appeal impliedly
recognizes the validity of the judgment of conviction because he
asked that the penalty of imprisonment be changed to fine, not
that the trial court's decision was void or that he be acquitted.
There can be no question about the trial court's jurisdiction over
the criminal prosecutions. Article 69 of P.D. 603 penalizes
abandonment of a minor child by its parent, as provided in
Article 59, with imprisonment from two to six months or a fine
not exceeding five hundred pesos or both. Article 210 penalizes
a violation of the obligation to give adequate support found in
Article 46 with imprisonment not exceeding one month or a fine
not exceeding two hundred pesos or both, unless a higher
penalty is provided for in the Revised Penal Code or special
laws.
The respondent court erred in its ruling that the trial court
determined a matter not within its competence and authority.
There is likewise no basis for its gratuitous finding that a parent
cannot be held criminally liable under P.D. 603 for withholding
support from his minor child. There is absolutely no discussion
on this ruling. The records show, however, that Joel Dempsey's
plea of guilt to the charge of withholding support from his minor
daughter was made without a full understanding of that
particular charge. Janalita Rapada herself testified that she is
receiving $150.00 a month for the support of the minor Christina
Marie Dempsey. The amount of P3,000.00 monthly appears to
fulfill the requirement of "adequate support" found in Par. 8, Art.
46 of P.D. No. 603. What Rapada wants is a judicial declaration
for this support to continue. This cannot be the basis of a
criminal conviction.
As to the information charging abandonment, the private
respondent entered his plea of guilt with full knowledge of the
consequences and meaning of his act and with the assistance
of his counsel. The reversal of conviction based on a plea of
guilty is an act which is not at all explained by the respondent
court and, therefore, in excess of its jurisdiction. It is well-settled
as a general rule that a plea of guilt is sufficient to sustain
conviction without introduction of further evidence (People v.
Formentera, 130 SCRA 114; People v. Balisacan, 17 SCRA
119; People v. Gravino, et al., 122 SCRA 123; People v.
Pajarillo, 94 SCRA 828). Only in such exceptional cases as
capital offenses is evidence still required.
The respondent court further ruled that Christina Dempsey is
not entitled to the rights arising from the parental responsibility
of her father, she being an illegitimate child. Reliance was made
on Art. 17 of P.D. 603 which defines the joint parental authority
of parents over their legitimate or adopted children. The
respondent court's observations are wrong because the law
itself protects even illegitimate children. Illegitimate children
have rights of the same nature as legitimate and adopted
children. This is enunciated in Art. 3, P.D. 603 which provides
that "all children shall be entitled to the rights herein set forth
without distinction as to legitimacy or illegitimacy, sex, social
status, religion, political antecedents, and other factors." Rights
must be enforced or protected to the extent that it is possible to
do so.
The Solicitor General points out that the new Family Code
promulgated as Executive Order No. 209, July 17, 1978 erases
any distinction between legitimate or adopted children on one
hand and acknowledged illegitimate children on the other,
insofar as joint parental authority is concerned. Article 211 of
the Family Code, whose date of effectivity is approaching,
merely formalizes into statute the practice on parental authority.
The respondent court would shift jurisdiction over the case from
the municipal trial court to the Department of Social Services
and Development. It is readily apparent that the DSSD cannot
take cognizance of and enforce the criminal sanctions of P.D.
603. Besides, Christina Marie Dempsey is not an abandoned
child in the strict sense of the word as she is still in the custody
and care of her mother. Art. 141 of P.D. 603 defines an
abandoned child as follows: "... Am abandoned child is one who
has no parental care or guardianship or whose parents or
guardians have deserted him for a period of at least six
continuous months ... ." Article 161 cannot, therefore, be applied
to the case at bar. Thus, it is not the Department of Social
Services and Development which has jurisdiction but the
Municipal Trial Court.
There is one other point which has to be corrected. As part of
the civil liability in its judgment, the trial court required the
accused to recognize Christina Marie as his natural child. This
should not have been done. The recognition of a child by her
father is provided for in the Civil Code and now in the new
Family Code. In this criminal prosecution, where the accused
pleaded guilty to criminal charges and the issue of recognition
was not specifically and fully heard and tried, the trial court
committed reversible error when it ordered recognition of a
natural child as part of the civil liability in the criminal case.
We also agree with the respondent regional trial court that the
penalty imposed is erroneous. The award of exemplary
damages and attorney's fees is improper. Although fathers like
Joel Dempsey should be deterred from committing similar acts
of irresponsibility, the law does not allow us to affirm the grant
of exemplary damages only on the basis of the facts herein
presented. Exemplary damages cannot be awarded inasmuch
as there is not one or more aggravating circumstances (Art.
2230, Civil Code).
WHEREFORE, the questioned decision of the Regional Trial
Court of Olongapo City, Branch 75 of the Third Judicial Region
is hereby REVERSED and SET ASIDE. The decision of Branch
II of the Municipal Trial Court of Olongapo City is REINSTATED
with the modification that in Criminal Case No. 6886, Joel
Dempsey is sentenced to imprisonment of One (1) month and
to pay a fine of Three Hundred Pesos (P300.00) while in
Criminal Case No. 69-86 he is ACQUITTED.
Cang v. Court of Appeals
Facts:
This is the question posed before this Court in this petition for
review on certiorari of the Decision[1] of the Court of Appeals
affirming the decree of adoption issued by the Regional Trial
Court of Cebu City, Branch 14,[2] in Special Proceedings No.
1744-CEB, In the Matter of the Petition for Adoption of the
minors Keith, Charmaine and Joseph Anthony, all surnamed
Cang, Spouses Ronald V. Clavano and Maria Clara Diago
Clavano, petitioner
Keith, Charmaine, and Joseph Anthony are children of spouses
Herbert Cang and Anna Marie Clavano. Later during their
marriage, Anna Marie learned of her husbands alleged
extramarital affair with Wilma Soco, a family friend of the
Clavanos, so she filed a petition for legal separation with
alimony pendente litewith the then Juvenile and Domestic
Relations Court of Cebu which rendered a decision approving
the joint manifestation of the Cang spouses providing that they
agreed to live separately and apart or from bed and board. They
further agreed: that the children of the childtren shall be entitled
to a monthly support of ONE THOUSAND PESOS (P1,000.00)
effective from the date of the filing of the complaint; that the
plaintiff shall be entitled to enter into any contract or agreement
with any person or persons, natural or juridical without the
written consent of the husband, or any undertaking or acts that
ordinarily requires husbands consent as the parties are by this
agreement legally separated.
Herbert left for the United States and sought a divorce from
Anna Marie before court of the State of Nevada. Said court
issued the divorce decree that also granted sole custody of the
three minor children to Anna Marie, reserving rights of visitation
at all reasonable times and places to petitioner. Thereafter,
petitioner took an American wife and thus became a naturalized
American citizen. In 1986, he divorced his American wife and
never remarried.
While in the United States, petitioner worked in Tablante
Medical Clinic earning P18,000.00 to P20,000.00 a month a
portion of which was remitted to the Philippines for his childrens
expenses and another, deposited in the bank in the name of his
children.
On September 25, 1987, private respondents Ronald V.
Clavano and Maria Clara Diago Clavano, respectively the
brother and sister-in-law of Anna Marie, filed Special
Proceedings for the adoption of the three minor Cang children
before the RTC of Cebu. Anna Marie filed an affidavit of consent
alleging that her husband had evaded his legal obligation to
support his children; that her brothers and sisters including
Ronald V. Clavano, had been helping her in taking care of the
children; that because she would be going to the United States
to attend to a family business, leaving the children would be a
problem and would naturally hamper (her) job-seeking venture
abroad; and that her husband had long forfeited his parental
rights over the children.
Upon learning of the petition for adoption, Herbert immediately
returned to the Philippines and filed an opposition thereto.
The RTC of Cebu City, issued a decree of adoption in favor of
spouses Clavano of the minors Keith, Charmaine and Joseph
Anthony all surnamed Cang.
Before the Court of Appeals, Herbert contended that the lower
court erred in holding that it would be in the best interest of the
three children if they were adopted by private respondents
Ronald and Maria Clara Clavano. He asserted that the petition
for adoption was fatally defective and tailored to divest him of
parental authority because: (a) he did not have a written consent
to the adoption; (b) he never abandoned his children; (c) Keith
and Charmaine did not properly give their written consent; and
(d) the petitioners for adoption did not present as witness the
representative of the Department of Social Welfare and
Development who made the case study report required by law.
The Court of Appeals affirmed the decree of adoption stating:
His motion for reconsideration having been denied, petitioner is
now before this Court, alleging that the petition for adoption was
fatally defective as it did not have his written consent as a
natural father as required by Article 31 (2) of Presidential
Decree No. 603, the Child and Youth Welfare Code, and Article
188 (2) of the Family Code.
ISSUE:
Whether or not petitioner had abandoned his children as to
warrant dispensation of his consent to their adoption.
HELD:
Jurisdiction being a matter of substantive law, the established
rule is that the statute in force at the time of the commencement
of the action determines the jurisdiction of the court. As such,
when spouses clavano filed the petition for adoption on
September 25, 1987, the applicable law was the Child and
Youth Welfare Code, as amended by Executive Order No. 91.
During the pendency of the petition for adoption or on August 3,
1988, the Family Code which amended the Child and Youth
Welfare Code took effect. Article 256 of the Family Code
provides for its retroactivity insofar as it does not prejudice or
impair vested or acquired rights in accordance with the Civil
Code or other laws. As amended by the Family Code, the
statutory provision on consent for adoption now reads:
Art. 188. The written consent of the following to the adoption
shall be necessary:
(1) The person to be adopted, if ten years of age or over;
(2) The parents by nature of the child, the legal guardian, or the
proper government instrumentality;
(3) The legitimate and adopted children, ten years of age or
over, of the adopting parent or parents;
(4) The illegitimate children, ten years of age or over, of the
adopting parents, if living with said parent and the latters
spouse, if any; and
(5) The spouse, if any, of the person adopting or to be adopted.
(Underscoring supplied)
Based on the foregoing, it is thus evident that notwithstanding
the amendments to the law, the written consent of the natural
parent to the adoption has remained a requisite for its
validity.Notably, such requirement is also embodied in Rule 99
of the Rules of Court as follows:
SEC. 3. Consent to adoption. There shall be filed with the
petition awritten consent to the adoption signed by the child, if
fourteen years of age or over and not incompetent, and by the
childs spouse, if any, and by each of its known living parents
who is not insane or hopelessly intemperate or has not
abandoned the child.
As clearly inferred from the foregoing provisions of law, the
written consent of the natural parent is indispensable for the
validity of the decree of adoption. Nevertheless, the requirement
of written consent can be dispensed with if the parent has
abandoned the child.
The question therefore is whether or not Herbert may be
considered as having abandoned the children.
This Court finds that both the lower court and the Court of
Appeals failed to appreciate facts and circumstances that
should have elicited a different conclusion on the issue of
whether petitioner has so abandoned his children, thereby
making his consent to the adoption unnecessary.
In the instant case, records disclose that petitioners conduct did
not manifest a settled purpose to forego all parental duties and
relinquish all parental claims over his children as to constitute
abandonment. Physical estrangement alone, without financial
and moral desertion, is not tantamount to abandonment.
Petitioners testimony on the matter is supported by
documentary evidence consisting of the following handwritten
letters to him of both his wife and children:
Aside from these letters, petitioner also presented certifications
of banks in the U.S.A. showing that even prior to the filing of the
petition for adoption, he had deposited amounts for the benefit
of his children.
There cannot be, therefore, a valid decree of adoption because
the finding of the courts on the issue of petitioner's
abandonment of his family was based on a misappreciation that
was tantamount to non-appreciation, of facts on record.
Pablo-Gualberto v. Gualberto
DOCTRINE
• Article 213 of the Family Code provides that in case of
a separation, the choice of a child over seven years of
age will be taken into consideration, and that children
under seven shall not be separated from their mother
UNLESS chosen parent (or mother) is proven to be unfit
due to compelling reasons.
• In connection with Article 363 of the Civil Code which
states that the welfare and well-being of children is the
paramount consideration in determining custody
arrangements.
FACTS
• On March 12, 2002, respondent Crisanto Rafaelito
Gualberto (Gualberto) filed a petition for a Declaration of
Nullity of his marriage to Joycelyn Pablo-Gualberto
(Pablo-Gualberto), with an ancillary prayer for “Custody
Pendente Lite” of their almost four-year old son, Rafaello
-- Pablo-Gualberto pulled out of school and took their son
with her to Mindoro when she left the petitioner and their
conjugal home in Paranaque City.
• Since the petitioner failed to appear despite notice, the
RTC granted the respondent’s prayer for custody
pendente lite, citing Article 211 of the Family Code and
holding that the petitioner’s parental authority is
subordinate to that of the respondent’s.
o Cherry Bastiel, a house helper of the spouses
testified that Pablo-Gualberto does not provide
care for the child as she often goes out of the
house. The helper also said that she saw the
petitioner slapping the child.
 o Gualberto also hired Renato Santos, the
President of United Security Logistic to conduct
surveillance on his wife which found that she has
been having a relationship with another woman
by the name of Noreen.
o Pablo-Gualberto had no reason to take Rafaello
with her, and per Sheriff returns, she is not with
him in Mindoro.
• Pablo-Gualberto filed a motion to lift the awarding of
custody to Gualberto before the RTC but she failed to
present any evidence to support her motion. Even so,
she was awarded custody of their son.
• Gualberto filed a Petition for Certiorari before the CA
alleging that the RTC acted with grave abuse of
discretion for issuing reversing the order that granted
him custody. It was partially granted by the CA in ruling
that the RTC did act with grave abuse of discretion but
the RTC judge was not precluded from considering
Pablo-Gualberto’s motion to lift the award of custody.
W/N the custody of the minor child should be awarded to the
mother
YES, the custody of the minor child should be awarded to the
mother as the respondent was unable to provide sufficient
evidence against the fitness of the mother that will compel the
court to rule against the mandatory character of Article 213 of
the Family Code.
When love is lost between spouses and the marriage inevitably
results in separation, the bitterest tussle is often over the
custody of their children. The Court is now tasked to settle the
opposing claims of the parents for custody pendente lite of their
child who is less than seven years old.30 On the one hand, the
mother insists that, based on Article 213 of the Family Code,
her minor child cannot be separated from her. On the other
hand, the father argues that she is "unfit" to take care of their
son; hence, for "compelling reasons," he must be awarded
custody of the child.
Article 213 of the Family Code provided that “in case of
separation of 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”.
The Court has held that when the parents separate (whether
legally or not), this article governs the custody of the children.
Although it is mandatory in character, the exception lies in
Article 363 of the Civil Code which stated that “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”.
The general rule that children under seven years of age shall
not be separated from their mother finds its raison d’etre in the
basic need of minor children for their mother’s loving care.33 In
explaining the rationale for Article 363 of the Civil Code, the
Code Commission stressed thus:
"The general rule is recommended in order to avoid a tragedy
where a mother has seen her baby torn away from her. No man
can sound the deep sorrows of a mother who is deprived of her
child of tender age. The exception allowed by the rule has to be
for ‘compelling reasons’ for the good of the child: those cases
must indeed be rare, if the mother’s heart is not to be unduly
hurt. If she has erred, as in cases of adultery, the penalty of
imprisonment and the (relative) divorce decree will ordinarily be
sufficient punishment for her. Moreover, her moral dereliction
will not have any effect upon the baby who is as yet unable to
understand the situation." (Report of the Code Commission, p.
12)
A similar provision is embodied in Article 8 of the Child and
Youth Welfare Code (Presidential Decree No. 603).34 Article 17
of the same Code is even more explicit in providing for the
child’s custody under various circumstances, specifically in
case the parents are separated. It clearly mandates that "no
child under five years of age shall be separated from his mother,
unless the court finds compelling reasons to do so."
The 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 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.
As pointed out earlier, there is express statutory recognition
that, as a general rule, a mother is to be preferred in awarding
custody of children under the age of seven. The caveat in Article
213 of the Family Code cannot be ignored, except when the
court finds cause to order otherwise.48
The so-called "tender-age presumption" under Article 213 of the
Family Code may be overcome only by compelling evidence of
the mother’s unfitness. The mother has been declared
unsuitable to have custody of her children in one or more of the
following instances: neglect, abandonment, unemployment,
immorality, habitual drunkenness, drug addiction, maltreatment
of the child, insanity or affliction with a communicable disease.
Prior court decisions have enumerated the following as
compelling reasons: abandonment, unemployment, immorality,
habitual drunkenness, drug addiction, maltreatment of the child,
insanity, or affliction with a communicable disease.
Gualberto argued that Pablo-Gualberto should not be granted
custody citing “immorality” as the compelling reason because
she was found to be in a relationship with another woman. On
this, the Court ruled that sexual orientation alone does not prove
parental incompetence. In order to apply the exception to Article
213, he had to establish that the “moral lapses” have an adverse
impact on the welfare and development of their son.
Due the absence of a compelling reason, the Court found no
reason to deprive Pablo-Gualberto custody over Rafaello.
Ruling:
WHEREFORE, the Petition in G.R. No. 154994 is GRANTED.
The assailed Decision of the Court of Appeals is hereby
REVERSED and the May 17, 2002 Regional Trial Court Order
REINSTATED. The Petition in G.R. No. 156254 is DISMISSED.
Costs against Petitioner Crisanto Rafaelito Gualberto V.
Notes
- Custody Pendente Lite means that the custody
is granted while the litigation is pending.
- Gulaberto’s petition for custody was anchored on
Article 211 of the Family Code which provides
that in case of a disagreement between the
father and the mother, the father’s decision shall
prevail UNLESS there is a judicial order to the
contrary.
Beckett v. Sarmiento
Facts:
FACTS:
1. Geoffrey Beckett (Australian) was previously married to
Eltesa Densing Beckett (Filipina). Out of the marriage was born
their son, Geoffrey, Jr.
2. They eventually separated and sued each other. Eltesa file a
case for violation of the VAWC Act and a suit for the declaration
of nullity of their marriage. While George commenced criminal
charges against Eltesa for adultery. Both cases ended in the
sala of respondent Judge Sarmiento.
3. A judgment was rendered based on a compromise
agreement.
Eltesa and George agreed to cause the dismissal of all pending
civil and criminal cases against each other and categorically
agreed that George shall have full and permanent custody over
Geoffrey, Jr., then five (5) years old, subject to the visitorial
rights of Eltesa.
4. Beckett left for Australia but in the years to come they would
come and see Eltesa in Cebu every Christmas. Eventually,
Beckett obtained a divorce from Eltesa in Australia.
5. In the 2010 visit, Beckett consented to have Geoffrey, Jr. stay
with Eltesa even after the holidays, provided she return the child
on January 9, 2011. January 9 came and went but Geoffrey, Jr.
remained with Eltesa, prompting Beckett to file a petition against
Eltesa for violation of VAWC.
6. Geoffrey also later applied for the issuance of a writ of habeas
corpus. During conference on the application for habeas
corpus, Geoffrey, Jr., then 9 years old, displayed inside the
courtroom hysterical conduct, shouting and crying, not wanting
to let go of Eltesa and acting as though, he, the father, was a
total stranger.
7. Despite this Judge Sarmiento issued the MARCH 1 2011
Order which ordered(1) Eltesa to return Geoffrey, Jr. to George;
and (2) George to bring the child in the pre-trial conference. But
for some reason, the turnover of Geoffrey, Jr. to Beckett did not
materialize.
8. On March 15, 2011, George alleged that while waiting for the
pre-trial conference to start, he saw one Helen Sy, purportedly
a close friend of Eltesa, enter Judge Sarmiento’s chambers.
Then, during the conference itself, Eltesa moved for the
reconsideration of the court’s March 1 2011 Order, praying that
it be set aside insofar as it
directed her to return the custody of Geoffrey, Jr. to George.
9. Judge Sarmiento, in open court, issued another order giving
Eltesa provisional custody over Geoffrey, Jr. and directing the
DSWD to conduct a social case study on the child (March 15
2011 Order)
10. Weeks later, George moved for the MR of March 15 2011
Order which granted provisional custody to Eltesa in light of the
adverted judgment on compromise agreement. He also alleged
that Judge Sarmiento conversed with Eltesa in Cebuano, a
dialect which neither the former nor his counsel understood, and
which they (respondent and Eltesa) persisted on using despite
requests that they communicate in English or Filipino.
11. His MR was left unheeded and several hearings on the case
were postponed because of the belated submission by the
DSWD of the case study report requested by respondent judge.
12. Thus, the instant complaint, alleging that Judge Sarmiento
is liable for (1) gross ignorance of the law for granting Eltesa
provisional custody over Geoffrey Jr.; and (2) partiality by
committing acts of serious misconduct and irregularities in the
performance of official duties.
13. OCA found the complaint meritorious insofar as the charges
for gross ignorance of the law is concerned given that
respondent judge issued his March 15, 2011 Order granting
provisional custody in favor of Eltesa despite the existence of
the judicial compromise. OCA recommended he be given stern
warning.
Issue: WON Judge Sarmiento is guilty of gross ignorance of the
law for granting provisional custody in spite of the existing
judgment on a compromise agreement.
Held:
No.
Respondent judge, in granting provisional custody over
Geoffrey, Jr. in favor of his mother, Eltesa, did not disregard the
res judicata rule. The more appropriate description of the legal
situation engendered by the March 15, 2011 Order issued
amidst the persistent plea of the child not to be returned to his
father, is that respondent judge exhibited fidelity to
jurisprudential command to accord primacy to the welfare and
interest of a minor child.
As aptly observed in a separate opinion in Dacasin v. Dacasin,
a custody agreement can never be regarded as "permanent and
unbending," the simple reason being that the situation of the
parents and even of the child can change, such that sticking to
the agreed arrangement would no longer be to the latter’s best
interest. In a very real sense, then, a judgment involving the
custody of a minor child cannot be accorded the force and effect
of res judicata.
Now to another point. In disputes concerning post-separation
custody over a minor, the well-settled rule is that no child under
seven (7) years of age shall be separated from the mother,
unless the court finds compelling reasons to order otherwise.
And if already over 7 years of age, the child’s choice as to which
of his parents he prefers to be under custody shall be respected,
unless the parent chosen proves to be unfit. In custody cases,
the foremost consideration is always the welfare and best
interest of the child, as reflected in no less than the U.N.
Convention on the Rights of the Child which provides that "in all
actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child
shall be a primary consideration."
In the light of the foregoing, respondent judge cannot be held
guilty of the charges hurled by the complainant against him for
the reason that absent a finding of strong reasons to rule
otherwise, the preference of a child over 7 years of age as to
whom he desired to live with shall be respected.
Geoffrey, Jr., at the time when he persistently refused to be
turned over to his father, was already over 7 years of age. As
such, he was very much capable of deciding, based on his past
experiences, with whom he wanted to stay. Noteworthy too are
the results of the interviews which were reflected in the three
reports previously mentioned, excerpts from which are
hereunder quoted, to wit:
x x x Being in the custody of his mother is something (sic) he
feel (sic) secure and protected and this is manifested in the
child’s craving for his mother’s presence all the time and the
desire to be always with her that even (sic) he sleeps he wants
his mother to embrace and hug him and cries when he wakes
up and he cannot see his mother. x x x He locked me in the
room. He always leave (sic) me. x x x they keep fighting, Daddy
and his girlfriend ... they'll get angry with (sic) me ... I'm scared
with (sic) Daddy.
Geoffrey, Jr. chose to live with his mother for a reason, which
respondent judge, consistent with the promotion of the best
interest of the child, provisionally granted through the issuance
of the disputed March 15, 2011 Order. In fact, in issuing the
disputed Order, respondent judge rectified an error previously
made when he handed out the Judgment on Compromise
Agreement in 2006.
Susan Lim Lua v. Danilo Lua
FACTS
• Susan Lim-Lua filed a petition against Danilo Lua for a
declaration of nullity of marriage with a prayer for
support pendente lite for herself and her two children
amounting to P500,000.00 per month. She cited
respondent’s huge earnings (millions) from salaries and
dividends in several companies and businesses here
and abroad. She is also suffering from scoliosis (needs
therapy 3x a week and eye surgery for both eyes
because of old age). She needs to hire another driver
and househelper.
• After due hearing, RTC cited Art. 203 of the Family
Code, stating that support is demandable from the time
the plaintiff needed the said support but is payable only
from the date of judicial demand, and thus also granted
support pendente lite of P250,000.00.
• The husband filed for Motion for Reconsideration
asserting that petitioner is not entitled to spousal support
considering that she does not maintain for herself a
separate dwelling from their children and respondent
has continued to support the family for their sustenance
and well- being in accordance with family’s social and
financial standing.
• The husband also assert that the ₱250,000 monthly
support and the ₱1,750,000.00 (7 months x 250,000
from the filing of case) retroactive support is
unconscionable and beyond the intendment of the law
for not having considered the needs of the respondent
• RTC denied his motion thus he appealed to the CA
wherein it reduced the monthly support to P115,000.00
which ruling was no longer questioned by both parties.
• RTC: ₱250k would be sufficient to take care of the needs
Lim-Lua and their 2 children, being a commendable act
 of defendant, should be continued by him considering
the vast financial resources at his disposal.
• The controversy between the parties resurfaced when
respondent’s compliance with the final CA decision
indicated that he deducted from the total amount in
arrears (₱2,645,000.00) the sum of ₱2,482,348.16,
representing the value of the two cars for the children,
their cost of maintenance and advances are given to the
petitioner and his children.
• CA ruled in favor of the husband that the expenses
incurred by the husband be considered advances which
may be properly deducted from the support in arrears
due to the petitioner and the two children. Thus ordered
the deduction of the amount of PhP3,428,813.80 from
the current total support in arrears of Danilo to his wife,
Susan Lim Lua and their two children.
• CA: CA reduced the monthly support pendente lite of
₱115k. Lua paid ₱162k and advances given by him to
his children and Lim-Lua in the sum of ₱2.4M. The
expenses incurred by Lua consisting of the purchase
and maintenance of the two cars, payment of tuition
fees, travel expenses, and the credit card purchases
involving groceries, dry goods and books, certainly
inured to the benefit not only of the two children, but their
mother as well.
Conflicting positions:
Lim-Lua: it was erroneous to have allowed the deduction of the
value of the two cars and their maintenance costs from the
support in arrears, as these items are not indispensable to the
sustenance of the family or in keeping them alive.
Lua: disallowing the subject deductions would result in unjust
enrichment, thus making him pay for the same obligation twice.
Since Lim-Lua and the children resided in one residence, the
groceries and dry goods purchased by the children using his
credit were not consumed by the children alone but shared with
their mother. As to the cars, these, too, are to be considered
advances for support, in keeping with the financial capacity of
the family as the children had never in their entire life commuted
from one place to another, nor do they eat their meals at
"carinderias".
Held:
W/N the expenses already incurred by the respondent may be
deducted from the total support in arrears owing to the petitioner
and her children - NOT ALL
In determining the amount of provisional support, the court may
likewise consider the following factors: (1) the financial
resources of the custodial and non-custodial parent and those
of the child; (2) the physical and emotional health of the child
and his or her special needs and aptitudes; (3) the standard of
living the child has been accustomed to; (4) the non-monetary
contributions that the parents will make toward the care and
well-being of the child.
The Family Court may direct the deduction of the provisional
support from the salary of the parent.
Since the amount of monthly support pendente lite as fixed by
the CA was not appealed by either party, there is no controversy
as to its sufficiency and reasonableness. The dispute concerns
the deductions made by respondent in settling the support in
arrears.
The general rule is to the effect that when a father is required
by a divorce decree to pay to the mother money for the support
of their dependent children and the unpaid and accrued
installments become judgments in her favor, he cannot, as a
matter of law, claim credit on account of payments voluntarily
made directly to the children. Koon v. Koon, supra; Briggs v.
Briggs, supra. However, special considerations of an equitable
nature may justify a court in crediting such payments on his
indebtedness to the mother, when that can be done without
injustice to her. Briggs v. Briggs, supra. The courts are justifiably
reluctant to lay down any general rules as to when such credits
may be allowed.
• The SC held that the CA should not have allowed all the
expenses incurred by respondent to be credited against
the accrued support pendente lite.
• The monthly support pendente lite granted by the trial
court was intended primarily for food, household
expenses such as salaries of drivers and house
helpers, and also petitioner's scoliosis therapy
sessions.
o Hence, the value of two expensive cars bought
by respondent for his children plus their
maintenance cost, travel expenses of petitioner
and Angelli, purchases through credit card of
items other than groceries and dry goods
(clothing) should have been disallowed, as these
bear no relation to the judgment awarding
support pendente lite.
• While it is true that the dispositive portion of the
executory decision in CA-G.R. SP No. 84740 ordered
herein respondent to pay the support in arrears "less
than the amount supposedly given by petitioner to the
private respondent as her and their two (2) children
monthly support," the deductions should be limited to
those basic needs and expenses considered by the
trial and appellate courts.
• While there is evidence to the effect that defendant is
giving some forms of financial assistance to his two (2)
children via their credit cards and paying for their school
expenses, the same is, however, devoid of any form of
spousal support to the plaintiff, for, at this point in time,
while the action for nullity of marriage is still to be
heard, it is incumbent upon the defendant,
considering the physical and financial condition of
the plaintiff and the overwhelming capacity of
defendant, to extend support unto the latter.
Only the following expenses of respondent may be allowed as
deductions from the accrued support pendente lite for petitioner
and her children:
Medical expenses of Susan Lim- Lua
Dental Expenses of Daniel Ryan
Credit card purchases of Angelli (Groceries & Dry Goods)
Credit Card purchases of Daniel Ryan
Ruling:
WHEREFORE, the petition is PARTLY GRANTED. The
Decision dated April 20, 2006 of the Court of Appeals in CA-
G.R. SP Nos. 01154 and 01315 is hereby MODIFIED to read as
follows:
"WHEREFORE, judgment is hereby rendered:
1. DISMISSING, for lack of merit, the case of Petition for
Contempt of Court with Damages filed by Susan Lim Lua
against Danilo Y. Lua with docket no. SP. CA - G.R. No.
01154;
2. GRANTING IN PART Danilo Y. Lua's Petition for
Certiorari docketed as SP. CA - G.R . No. 01315.
Consequently, the assailed Orders dated 27 September
2005 and 25 November 2005 of the Regional Trial Court,
 Branch 14, Cebu City issued in Civil Case No. CEB-
29346 entitled "Susan Lim Lua versus Danilo Y. Lua, are
hereby NULLIFIED and SET ASIDE, and instead a new
one is entered:
1. ORDERING the deduction of the amount of
Php648,102.29 from the support pendente lite in
arrears of Danilo Y. Lua to his wife, Susan Lim
Lua and their two (2) children;
2. ORDERING Danilo Y. Lua to resume payment of
his monthly support of PhP115,000.00 pesos
starting from the time payment of this amount
was deferred by him subject to the deduction
aforementioned.
3. DIRECTING the immediate execution of this
judgment.
SO ORDERED.
Mangonon v. CA
Facts:
DOCTRINE
• ART 194. Support comprises everything indispensable
for sustenance, dwelling, clothing, medical attendance,
education and transportation, in keeping with the
financial capacity of the family.
The education of the person entitled to be supported
referred to in the preceding paragraph shall include his
schooling or training for some
• ART. 199 Whenever two or more persons are obliged to
give support, the liability shall devolve upon the following
persons in the order herein provided:
o (1) The spouse
o (2) The descendants in the nearest degree;
o (3) The ascendants in the nearest degree; and
o (4) The brothers and sisters.
• Art. 204. The person obliged to give support shall have
the option to fulfill the obligation either by paying the
allowance fixed, or by receiving and maintaining in the
family dwelling the person who has a right to receive
support. The latter alternative cannot be availed of in
case there is a moral or legal obstacle thereto.
FACTS
• 16 February 1975: petitioner and respondent Federico
Delgado were civilly married by then City Court Judge
Eleuterio Agudo in Legaspi City, Albay.
o Petitioner was only 21 years old while respondent
Federico was only 19 years old.
o Per Article 85 of the New Civil Code, it was annulled
on 11 August 1975 by the Quezon City Juvenile and
Domestic Relations Court. (solemnized without
the required consent)
• 25 March 1976: Within seven months after the
annulment of their marriage, petitioner gave birth to
twins Rica and Rina.
o Petitioner, with the assistance of her second
husband Danny Mangonon, raised her twin
daughters as private respondents had totally
abandoned them.
• Rica and Rina were about to enter college in the United
States of America (USA) where petitioner, together with
her daughters and second husband, had moved to and
finally settled in.
o Rica was admitted to the University of
Massachusetts (Amherst) while Rina was accepted
by the Long Island University and Western New
England College.
 o They were, however, financially incapable of
pursuing collegiate education because of the
following:
▪ The average annual cost for college education
is US$22,000/year or a total of US$44,000.00,
more or less, for both Rica and Rina
▪ General maintenance support each in the
amount of US$3,000.00 per year or a total of
US$6,000 per year.
▪ Petitioner’s monthly income from her 2 jobs is
merely US$1,200 after taxes which she can
hardly give general support to Rica and Rina,
much less their required college educational
support.
▪ Petitioner’s present husband has his own son
with petitioner and own daughter (also in
college) to attend to.
▪ Rica and Rina’s petitions for Federal Student
Aid have been rejected by the U.S. Department
of Education.
• 17 March 1994: petitioner filed, in behalf of her then
minor children Rica and Rina, a Petition for
Declaration of Legitimacy and Support, with
application for support pendente lite with the RTC
Makati
• Demands were made upon Federico and the latter’s
father, Francisco, for general support and for the
payment of the required college education of Rica
and Rina.
• The twin sisters even exerted efforts to work out a
settlement concerning these matters with
respondent Federico and respondent Francisco,
the latter being generally known to be financially
well-off.
▪ Francisco (Grandfather) is the majority
stockholder and Chairman of the Board of
Directors of Citadel Commercial, Incorporated
(owns and manages twelve gasoline stations,
substantial real estate, and is engaged in
shipping, brokerage and freight forwarding)
▪ Majority stockholder and Chairman of the
Board of Directors of Citadel Shipping (does
business with Hyundai of Korea)
▪ Owns the Citadel Corporation (owns real
properties in different parts of the country).
▪ Chairman of the Board of Directors of Isla
Communication Co. and he owns shares of
stocks of Citadel Holdings.
▪ Owns real properties here and abroad.
• Respondent Francisco (Grandfather) contends that birth
certificates of Rica and Rina do not bear the signature of
respondent Federico, legitimacy must be first
established as “there is no basis to claim support until a
final and executory judicial declaration has been made
as to the civil status of the children.”
• Whatever good deeds he may have done to Rica
and Rina, according to respondent Francisco, was
founded on pure acts of Christian charity.
• Obligation must be borne by those more closely
related to the recipient—petitioner and her second
husband, the latter having voluntarily assumed the
duties and responsibilities of a natural father.
• Even assuming that he is responsible for support,
respondent Francisco contends that he could not
be made to answer beyond what petitioner and the
father could afford.
• Respondent Frederico (Father) states that petitioner had
no cause of action against him.
• He left for abroad and stayed there for a long time
“[w]ithin the first one hundred twenty (120) days of
the three hundred days immediately preceding
March 25, 1976”
 • He only came to know about the birth of Rica and
Rina when the twins introduced themselves to him
seventeen years later. In order not to antagonize
the two, respondent Federico claimed he did not tell
them that he could not be their father.
• Even assuming that Rica and Rina are, indeed, his
daughters, he alleged that he could not give them
the support they were demanding as he was only
making P40,000.00 a month.
• Trial Court issued an order where respondents are
hereby directed to provide a monthly support (pendente
lite) of P5,000.00 each or a total of P10,000.00 for the
education of Rebecca Angela and Regina Isabel
Delgado to be delivered within the first five days of each
month without need of demand.
• Petitioner was unsatisfied and brought the case to CA
• CA dismissed the Petition for Certiorari and affirmed the
TC decision.
• At the time of the filing of the Petition with CA, Rica had
already entered Rutgers University & Rina entered CQ
Post, Long Island University
• Rica was able to obtain tuition fee grant of 1190
USD and Federal Stafford loan of 2615 USD
• Rina was given a financial grant of 2000 USD and
Federal Stafford loan of 2625 USD
• Petitioner obtained a loan to cover the remainder of
RIca and Rina’s school budget through the Federal
Direct Student Loan Program.
Francisco and Federico’s claim that they have the option under
the law as to how they could perform their obligation to support
Rica and Rina, respondent Francisco insists that Rica and Rina
should move here to the Philippines to study in any of the local
universities.
Held:
W/N respondent Francisco Delgado be held liable for her
granddaughter’s educational support – YES
YES, as the next immediate relative of Rica and Rina,
Francisco is tasked to give support to his granddaughters in
default of their parents, it having been established that
respondent Francisco has the financial means to support
his granddaughters’ education.
• There being prima facie evidence showing that
petitioner and respondent Federico are the parents of
Rica and Rina, petitioner and respondent Federico are
primarily charged to support their children’s college
education but both parties are restricted by their
financial income
o Trial Court and CA’s erred in finding that Frederico
is liable to provide monthly support given that
Frederico’s allegations are bereft of evidence to
support his assertions regarding his employment
and earning. (PHP 40,000 a month)
o Fransisco himself stated that his son did not own
anything and Frederico admitted he had no property
of his own.
▪ His car and place of residence belongs to
Citadel Corporation.
o Petitioner even had to take out a loan in order to
cover the remainder of her childrens’ tuition and
fees.
▪ RESPONDENT: (Francisco) asserts that she
has a gainful employment in US and she is
qualified for a parent loan program
▪ If petitioner were really making enough money
abroad, she certainly would not have felt the
need to apply for said loan. The fact that
petitioner was compelled to take out a loan is
enough indication that she did not have enough
 money to enable her to send her daughters to
college by herself.
▪ Even Rica and Rina themselves were forced by
the circumstances they found themselves in to
secure loans under their names so as not to
delay their entrance to college.
• Under Art 199, Francisco as the next immediate
relative of Rica and Rina, is tasked to give support
to his granddaughters in default of their parents.
o Respondent Francisco has the financial means to
support his granddaughters’ education,(see facts for
his properties and source of income)
• Respondent Francisco cannot avail himself of the 2nd
option in Art 204 since there are circumstances, legal
or moral, between respondent and petitioner which
should be considered.
o Art 204. States that the alternative of receiving and
maintaining in the family dwelling the person who
has a right to receive support cannot be availed of
in case there is a moral or legal obstacle thereto.
o Prior to the commencement of this action, the
relationship between respondent Francisco, and
petitioner and her twin daughters was indeed quite
pleasant.
▪ correspondences exchanged among them
expressed profound feelings of thoughtfulness
and concern for one another’s well-being.
o With the filing of this case, and the allegations hurled
at one another by the parties, the relationships
among the parties had certainly been affected.
o Those who Rina and Rica had considered and
claimed as family denied having any familial
relationship with them.
o Given all these, Rica and Rina cannot be obliged
to move back here in the Philippines in the
company of those who have disowned them.
• Francisco is liable for half of the amount of school
expenses incurred by Rica and Rina as support
pendente lite.
o Amount of support should be proportionate to the
resources or means of the giver and to the
necessities of the recipient.
Considering, however, that the twin sisters may have already
been done with their education by the time of the promulgation
of this decision, support pendente lite awarded in arrears to be
computed from the time they entered college until they had
finished their respective studies.
W/N Trial court erred in fixing the amount of the monthly support
pendente lite granted to petitioner’s children at a measly PHP
5000 per child – NO
NO, Because of the provisional nature of a support pendente
lite, a court does not need to delve fully into the merits of the
case before it can settle an application for this relief. All that a
court is tasked to do is determine the kind and amount of
evidence which may suffice to enable it to justly resolve the
application. It is enough that the facts be established by
affidavits or other documentary evidence appearing in the
record.
• Petitioner was able to establish, by prima facie proof, the
filiation of her twin daughters to private respondents
and the twins’ entitlement to support pendente lite.
o Francisco and the twins maintained constant
communication as seen in their exchange of letters
where he wrote their names as Rica and Rina
Delgado.
o He referred to himself as Daddy Paco or Lolo Paco.
o In a letter on October 13, 1989 he states that “as
the grandfather, am extending financial help of
1000 USD”

RULING
WHEREFORE, premises considered, this Petition is
PARTIALLY GRANTED. The Decision of the Court of Appeals
dated 20 March 1996 and Resolution dated 16 May 1996
affirming the Order dated 12 September 1995 of the Regional
Trial Court, Branch 149, Makati, fixing the amount of support
pendente lite to P5,000.00 for Rebecca Angela and Regina
Isabel, are hereby MODIFIED in that respondent Francisco
Delgado is hereby held liable for support pendente lite in the
amount to be determined by the trial court pursuant to this
Decision. Let the records of this case be remanded to the trial
court for the determination of the proper amount of support
pendente lite for Rebecca Angela and Regina Isabel as well as
the arrearages due them in accordance with this Decision within
ten (10) days from receipt hereof. Concomitantly, the trial court
is directed to proceed with the trial of the main case and the
immediate resolution of the same with deliberate dispatch. The
RTC Judge, Branch 149, Makati, is further directed to submit a
report of his compliance with the directive regarding the support
pendente lite within ten (10) days from compliance thereof.
Abella v. Cabañero
FACTS:
In a Complaint for Support filed on April 22, 2005, petitioner
Richelle alleged that while she was still a minor in the years
2000 to 2002, she was repeatedly sexually abused by
respondent Cabañero inside his rest house at Barangay
Masayo, Tobias Fornier, Antique.[9] As a result, she allegedly
gave birth to a child on August 21, 2002.
Richelle added that on February 27, 2002, she initiated a
criminal case for rape against Cabañero. This, however, was
dismissed. Later, she initiated another criminal case, this time
for child abuse under Republic Act No. 7610 or the Special
Protection of Children Against Abuse, Exploitation and
Discrimination Act. This, too, was dismissed. Later, she initiated
another criminal case, this time for child abuse under Republic
Act No. 7610 or the Special Protection of Children Against
Abuse, Exploitation and Discrimination Act. This, too, was
dismissed. Richelle prayed for the child's monthly allowance in
the amount of P3,000.00.
In his Answer, Cabañero denied sexually abusing Richelle, or
otherwise having any sexual relations with her. Thus, he
asserted that he could not have been the father of Richelle’s
child.
After two (2) re-settings, pre-trial was held on February 21,
2007. Only Richelle's counsel appeared. Richelle's motion to
present her evidence ex parte was granted.
In her testimony, Richelle noted that Cabañero was related to
her mother and that she treated him as her uncle. She narrated
how she was sexually abused by Cabañero on July 25, 2000,
September 10, 2000, and February 8, 2002 and how Cabañero
threatened her to keep her silent. She added that during this
period, Cabañero sent her three (3) letters. She testified that
she bore her and Cabañero's child, whom she named Marl
JhorylleAbella, on August 21, 2002. She insisted on her
certainty that Cabañero was the father of the child as she
supposedly had no sexual relations with any other man.
In its March 19, 2007 Decision, the Regional Trial Court
dismissed Richelle's Complaint without prejudice, on account of
her failure to implead her minor child, Jhorylle, as plaintiff.
However, the Court of Appeals disagreed with the Regional Trial
Court's basis for dismissing the Complaint. It emphasized that
non-joinder of indispensable parties is not a ground for the
dismissal of an action and added that it would have sufficed for
the Regional Trial Court to have "ordered the amendment of the
caption of the Complaint to implead the minor child." The Court
of Appeals still ruled that the dismissal of the Complaint was
proper as the filiation and paternity of the child had not been
previously established. As the child's birth certificate did not
indicate that
Cabañero was the father and as Cabañero had not done
anything to voluntarily recognize the child as his own, the Court
of Appeals asserted that Richelle "should have first instituted
filiation proceedings to adjudicate the minor child's paternity."
Following the denial of her Motion for Reconsideration, Richelle
filed this Petition.
ISSUE:
Whether or not the Court of Appeals erred in ruling that filiation
proceedings should have first been separately instituted to
ascertain the minor child's paternity and that without these
proceedings having first been resolved in favor of the child's
paternity claim, petitioner Richelle P. Abella's action for support
could not prosper.
HELD:
The Court reverses the Court of Appeals Decision.
While it is true that the grant of support was contingent on
ascertaining paternal relations between respondent and
petitioner's daughter, Jhorylle, it was unnecessary for
petitioner's action for support to have been dismissed and
terminated by the Court of Appeals in the manner that it did.
Instead of dismissing the case, the Court of Appeals should
have remanded the case to the Regional Trial Court. There,
petitioner and her daughter should have been enabled to
present evidence to establish their cause of action—inclusive of
their underlying claim of paternal relations—against
respondent.
An illegitimate child, "conceived and born outside a valid
marriage," as is the admitted case with petitioner's daughter, is
entitled to support. To claim it, however, a child should have first
been acknowledged by the putative parent or must have
otherwise previously established his or her filiation with the
putative parent." When "filiation is beyond question, support
[shall then follow] as [a] matter of obligation." A liberal
application of rules should not be "without prejudice to the right
of the putative parent to claim his or her own defenses."
The recognition of an illegitimate child through a birth certificate,
a will, a statement before a court of record, or in any authentic
writing, has been held to be "in itself, a consummated act of
acknowledgment of the child, and no further court action is
required."
Although petitioner contends that the complaint filed by herein
private respondent merely alleges that the minor Chad Cuyugan
is an illegitimate child of the deceased and is actually a claim for
inheritance, from the allegations therein the same may be
considered as one to compel recognition. Further, that, the two
causes of action, one to compel recognition and the other to
claim inheritance, may be joined in one complaint is not new in
our jurisprudence.
It was improper to rule here, as the Court of Appeals did, that it
was impossible to entertain petitioner's child's plea for support
without her and petitioner first surmounting the encumbrance of
an entirely different judicial proceeding. Without meaning to
lend credence to the minutiae of petitioner's claims, it is quite
apparent that the rigors of judicial proceedings have been taxing
enough for a mother and her daughter whose claim for support
amounts to a modest P3,000.00 every month. When petitioner
initiated her action, her daughter was a toddler; she is, by now,
well into her adolescence. The primordial interest of justice and
the basic dictum that procedural rules are to be "liberally
construed in order to promote their objective of securing a just,
speedy and inexpensive disposition of every action and
proceeding impel us to grant the present Petition.
Gotardo v. Buling
Facts:
On September 6, 1995, respondent Divina Buling filed a
complaint for compulsory recognition and support pendente
lite, claiming that the petitioner is the father of her child Gliffze.
The petitioner started courting the respondent in the third week
of December 1992 and they became sweethearts in the last
week of January 1993. Sometime in September 1993, the
petitioner started intimate sexual relations with the respondent
in the former’s rented room in the boarding house managed by
Rodulfo, the respondent’s uncle, on Tomas Oppus St., Agbao,
Maasin, Southern Leyte.When told of the pregnancy, the
petitioner was happy and made plans to marry the
respondent.They in fact applied for a marriage license.The
petitioner even inquired about the costs of a wedding reception
and the bridal gown.Subsequently, however, the petitioner
backed out of the wedding plans.
The respondent responded by filing a complaint with the
Municipal Trial Court of Maasin, Southern Leyte for damages
against the petitioner for breach of promise to marry. Later,
however, the petitioner and the respondent amicably settled the
case.The respondent gave birth to their son Gliffze on March 9,
1995. When the petitioner did not show up and failed to provide
support to Gliffze, the respondent sent him a letter on July 24,
1995 demanding recognition of and support for their
child.During the pendency of the case, the RTC, on the
respondent’s motion granted a ₱2,000.00 monthly child
support, retroactive from March 1995.
THE RTC RULING
In its June 25, 2002 decision, the RTC dismissed the complaint
for insufficiency of evidence proving Gliffze’s filiation. It found
the respondent’s testimony inconsistent on the question of
when she had her first sexual contact with the petitioner, i.e.,
"September 1993" in her direct testimony while "last week of
January 1993"
THE CA RULING
In its March 5, 2004 decision, the CA departed from the RTC's
appreciation of the respondent’s testimony, concluding that the
latter merely made an honest mistake in her understanding of
the questions of the petitioner’s counsel. It noted that the
petitioner and the respondent had sexual relationship even
before August 1994; that the respondent had only one
boyfriend, the petitioner, from January 1993 to August 1994;
and that the petitioner’s allegation that the respondent had
previous relationships with other men remained
unsubstantiated. The CA consequently set aside the RTC
decision and ordered the petitioner to recognize his minor son
Gliffze. It also reinstated the RTC order granting a ₱ 2,000.00
monthly child support.
THE ISSUE
Whether or not the CA committed a reversible error when it set
aside the RTC’s findings and ordered the petitioner to recognize
and provide legal support to his minor son Gliffze.
Held:
We do not find any reversible error in the CA’s ruling.
One can prove filiation, either legitimate or illegitimate, through
the record of birth appearing in the civil register or a final
judgment, an admission of filiation in a public document or a
private handwritten instrument and signed by the parent
concerned, or the open and continuous possession of the status
of a legitimate or illegitimate child, or any other means allowed
by the Rules of Court and special laws.32 We have held that
such other proof of one's filiation may be a "baptismal certificate,
a judicial admission, a family bible in which his name has been
entered, common reputation respecting [his] pedigree,
admission by silence, the [testimonies] of witnesses, and other
kinds of proof admissible under Rule 130 of the Rules of Court.”
In Herrera v. Alba, we stressed that there are four significant
procedural aspects of a traditional paternity action that parties
have to face: a prima facie case, affirmative defenses,
presumption of legitimacy, and physical resemblance between
the putative father and the child.35 We explained that a prima
facie case exists if a woman declares — supported by
corroborative proof — that she had sexual relations with the
putative father; at this point, the burden of evidence shifts to the
putative father.36 We explained further that the two affirmative
defenses available to the putative father are: (1) incapability of
sexual relations with the mother due to either physical absence
or impotency, or (2) that the mother had sexual relations with
other men at the time of conception.37
In this case, the respondent established a prima facie case that
the petitioner is the putative father of Gliffze through testimony
that she had been sexually involved only with one man, the
petitioner, at the time of her conception.38Rodulfo corroborated
her testimony that the petitioner and the respondent had
intimate relationship.
On the other hand, the petitioner did not deny that he had sexual
encounters with the respondent, only that it occurred on a much
later date than the respondent asserted, such that it was
physically impossible for the respondent to have been three (3)
months pregnant already in September 1994 when he was
informed of the pregnancy.40 However, the petitioner failed to
substantiate his allegations of infidelity and insinuations of
promiscuity. His allegations, therefore, cannot be given
credence for lack of evidentiary support. The petitioner’s denial
cannot overcome the respondent’s clear and categorical
assertions.
The petitioner, as the RTC did, made much of the variance
between the respondent’s direct testimony regarding their first
sexual contact as "sometime in September 1993" and her cross-
testimony when she stated that their first sexual contact was
"last week of January 1993," as follows:
We find that the contradictions are for the most part more
apparent than real, having resulted from the failure of the
respondent to comprehend the question posed, but this
misunderstanding was later corrected and satisfactorily
explained. Indeed, when confronted for her contradictory
statements, the respondent explained that that portion of the
transcript of stenographic notes was incorrect and she had
brought it to the attention of Atty. Josefino Go Cinco (her former
counsel) but the latter took no action on the matter.
Jurisprudence teaches that in assessing the credibility of a
witness, his testimony must be considered in its entirety instead
of in truncated parts. The technique in deciphering a testimony
is not to consider only its isolated parts and to anchor a
conclusion based on these parts. "In ascertaining the facts
established by a witness, everything stated by him on direct,
cross and redirect examinations must be calibrated and
considered." Evidently, the totality of the respondent's testimony
positively and convincingly shows that no real inconsistency
exists. The respondent has consistently asserted that she
started intimate sexual relations with the petitioner sometime in
September 1993/
Since filiation is beyond question, support follows as a matter of
obligation; a parent is obliged to support his child, whether
legitimate or illegitimate. Support consists of everything
indispensable for sustenance, dwelling, clothing, medical
attendance, education and transportation, in keeping with the
financial capacity of the family. Thus, the amount of support is
variable and, for this reason, no final judgment on the amount
of support is made as the amount shall be in proportion to the
resources or means of the giver and the necessities of the
recipient It may be reduced or increased proportionately
according to the reduction or increase of the necessities of the
recipient and the resources or means of the person obliged to
support.
In this case, we sustain the award of ₱ 2,000.00 monthly child
support, without prejudice to the filing of the proper motion in
the RTC for the determination of any support in arrears,
considering the needs of the child, Gliffze, during the pendency
of this case.
WHEREFORE, we hereby DENY the petition for lack of merit.
The March 5, 2004 decision and the July 27, 2004 resolution of
the Court of Appeals in CA GR CV No. 76326 are hereby
AFFIRMED. Costs against the petitioner.
Mabugay-Otamias v. Republic
Facts:
Petitioner Edna Mabugay-Otamias and retired Colonel
Francisco B. Otamias were married on June 16, 1978 and had
five children. On September 2000, Edna and Colonel Otamias
separated due to his alleged infidelity. Their children remained
with Edna.
On August 2002, Edna filed a Complaint-Affidavit against
Colonel Otamias before the Provost Marshall Division of the
Armed Forces of the Philippines. Edna demanded monthly
support equivalent to 75% of Colonel Otamias’ retirement
benefit. Colonel Otamias executed an affidavit stating that he
can only 50% of his retirement benefits.
On February 26, 2003, Colonel Otamias executed a Deed of
Assignment where he waived 50% of his salary and pension
benefits in favor of Edna and their children. The Deed of
Assignment was considered by the parties as a compromise
agreement. Colonel Otamias retired on April 1, 2003.
The agreement was honored until January 6, 2006. Edna
alleged that “the Armed Forced of the Philippines suddenly
decided not to honor the agreement” between Colonel Otamias
and his legitimate family. In a letter dated April 3, 2006, the
Armed Forces of the Philippines Pension and Gratuity
Management Center (AFP-PGMC) informed Edna that a court
order was required for them to recognize the Deed of
Assignment. In another letter dated April 17, 2006, the Armed
Forces of the Philippines Pension Gratuity Management Center
reiterated that it could not act on Edna’s request to receive a
portion of Colonel Otamias’ pension “unless ordered by the
appropriate court”.
Issue: Whether or not the Deed of Assignment made by Colonel
Otamias and Edna Otamias is valid

Ruling:
Yes the Deed of Assignment made by Colonel Otamias and
Edna Otamias is valid.
Article 6 of the Civil Code provides that “Rights may be waived,
unless the waiver is contrary to law, public order, public policy,
morals or good customs, or prejudicial to a third person with a
right recognized by law”.
The concept of waiver has been defined by this Court as “a
voluntary and intentional relinquishment or abandonment of a
known existing legal right, advantage, benefit, claim or privilege,
which except for such waiver the party would have enjoyed; the
voluntary abandonment or surrender, by a capable person, of a
right known by him to exist, with the intent that such right shall
be surrendered and such person forever deprived of its benefit;
or such conduct as warrants an inference of the relinquishment
of such right; or the intentional doing of an act inconsisted with
claiming it”.
When Colonel Otamias executed the Deed of Assignment, he
effectively waived his right to claim that his retirement benefits
are exempt from execution. The right to receive retirement
benefits belongs to Colonel Otamias. His decision to waive a
portion of his retirement benefits does not infringe on the right
of third persons, but even protects the right of his family to
receive support.
In addition, the Deed of Assignment should be considered as
the law between the parties, and its provisions should be
respected in the absene of allegations that Colonel Otamias
was coerced or defrauded in executing it. The general rule is
that a contract is the law between parties and parties are free to
stipulate terms and conditions that are not contrary to law,
morals, good customs, public order, or public policy.
Thus, the Deed of Assignment executed by Colonel Otamias
was not contrary to law; it was in accordance with the provisions
on support in the Family Code. Hence, there was no reason for
the AFP-PGMC not to recognize its validity.
The AFP PGMC allows deductions from a retiree's pension for
as long as the retiree executes a Special Power of Attorney
authorizing the AFP PGMC to deduct a certain amount for the
benefit of the retiree's beneficiary.
It is curious why Colonel Otamias was allowed to execute a
Deed of Assignment by the administering officer when, in the
first place, the AFP PGMC's recognized procedure was to
execute a Special Power of Attorney, which would have been
the easier remedy for Colonel Otamias' family.
Instead, Colonel Otamias' family was forced to incur litigation
expenses just to be able to receive the financial support that
Colonel Otamias was willing to give to Edna, et al.
Under Section 31, Colonel Otamias' retirement benefits are
exempt from execution. Retirement benefits are exempt from
execution so as to ensure that the retiree has enough funds to
support himself and his family.
On the other hand, the right to receive support is provided under
the Family Code. Article 194 of the Family Code defines support
as follows:
Art. 194. Support comprises everything indispensable for
sustenance, dwelling, clothing, medical attendance, education
and transportation, in keeping with the financial capacity of the
family.

The education of the person entitled to be supported referred to
in the preceding paragraph shall include his schooling or
training for some profession, trade or vocation, even beyond the
age of majority. Transportation shall include expenses in going
to and from school, or to and from place of work.
The provisions of the Family Code also state who are obliged to
give support, thus:
Art. 195. Subject to the provisions of the succeeding articles,
the following are obliged to support each other to the whole
extent set forth in the preceding article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and
illegitimate children of the latter;
(4) Parents and their illegitimate children and the legitimate and
illegitimate children of the latter; and
(5) Legitimate brothers and sisters, whether of the full or half-
blood.
Art. 196. Brothers and sisters not legitimately related, whether
of the full or half-blood, are likewise bound to support each other
to the full extent set forth in Article 194 except only when the
need for support of the brother or sister, being of age, is due to
a cause imputable to the claimant's fault or negligence.
Art. 197. For the support of legitimate ascendants;
descendants, whether legitimate or illegitimate; and brothers
and sisters, whether legitimately or illegitimately related, only
the separate property of the person obliged to give support shall
be answerable provided that in case the obligor has no separate
property, the absolute community or the conjugal partnership, if
financially capable, shall advance the support, which shall be
deducted from the share of the spouses obliged upon the
liquidation of the absolute community or of the conjugal
partnership
The provisions of Rule 39 of the Rules of Court that are
applicable to this case are in apparent conflict with each other.
Section 4 provides that judgments in actions for support are
immediately executory. On the other hand, Section 13(1)
provides that the right to receive pension from government is
exempt from execution.
Based on the Family Code, Colonel Otamias is obliged to give
support to his family, petitioners in this case. However, he
retired in 2003, and his sole source of income is his pension.
Judgments in actions for support are immediately executory, yet
under Section 31 of Presidential Decree No. 1638, his pension
cannot be executed upon.
However, considering that Colonel Otamias has waived a
portion of his retirement benefits through his Deed of
Assignment, resolution on the conflict between the civil code
provisions on support and Section 31 of Presidential Decree No.
1638 should be resolved in a more appropriate case.