G.R. No. 105308 September 25, 1998 HERBERT CANG, petitioner, vs.

COURT OF APPEALS and Spouses RONALD V. CLAVANO and MARIA CLARA CLAVANO, respondents. The answer to this interesting query, certainly not one of first impression, would have to be reached, not solely on the basis of law and jurisprudence, but also the hard reality presented by the facts of the case. This is the question posed before this Court in this petition for review on certiorari of the Decision of the Court of Appeals affirming the decree of adoption issued by the Regional Trial Court of Cebu City, Branch 14, 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, petitioners." FACTS: Petitioner Herbert Cang and Anna Marie Clavano who were married on January 27, 1973, begot three children, namely: Keith, born on July 3, 1973; Charmaine, born on January 23, 1977, and Joseph Anthony, born on January 3, 1981. During the early years of their marriage, the Cang couple's relationship was undisturbed. Not long thereafter, however, Anna Marie learned of her husband's alleged extramarital affair with Wilma Soco, a family friend of the Clavanos. Upon learning of her husband's alleged illicit liaison, Anna Marie filed a petition for legal separation with alimony pendente lite with 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: (c) That the children of the parties shall be entitled to a monthly support of ONE THOUSAND PESOS (P1,000.00) effective from the date of the filing of the complaint. This shall constitute a first lien on the net proceeds of the house and lot jointly owned by the parties situated at Cinco Village, Mandaue City; (d) 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 husband's consent as the parties are by this agreement legally separated; Petitioner then left for the United States where he sought a divorce from Anna Marie before the Second Judicial District 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 children's expenses and another, deposited in the bank in the name of his children. Meanwhile, 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 No. 1744-CEB for the adoption of the three minor Cang children before the Regional Trial Court of Cebu. The petition bears the signature of then 14year-old Keith signifying consent to his adoption. Anna Marie likewise 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 for the following reasons: 1. The decision in Civil Case No. JD-707 allowed her to enter into any contract without the written consent of her husband; 2. Her husband had left the Philippines to be an illegal alien in the United States and had been transferring from one place to another to avoid detection by Immigration authorities, and 3. Her husband had divorced her. Upon learning of the petitioner for adoption, petitioner immediately returned to the Philippines and filed an

opposition thereto, alleging that, although private respondents Ronald and Maria Clara Clavano were financially capable of supporting the children while his finances were "too meager" compared to theirs, he could not "in conscience, allow anybody to strip him of his parental authority over his beloved children." Pending resolution of the petition for adoption, petitioner moved to reacquire custody over his children alleging that Anna Marie had transferred to the United States thereby leaving custody of their children to private respondents. On January 11, 1988, the Regional Trial Court of Cebu City, Branch 19, issued an order finding that Anna Marie had, in effect, relinquished custody over the children and, therefore, such custody should be transferred to the father. The court then directed the Clavanos to deliver custody over the minors to petitioner. On March 27, 1990, the Regional Trial Court of Cebu City, Branch 14, issued a decree of adoption with a dispositive portion reading as follows: WHEREFORE, premises considered, the petition for adoption of the minors Keith, Charmaine and Joseph Anthony all surnamed Cang, by the petitioner-spouses Ronald V. Clavano and Maria Clara Diago Clavano is hereby granted and approved. These children shall henceforth be known and called as Keith D. Clavano, Charmaine D. Clavano and Joseph Anthony D. Clavano respectively. Moreover, this Decree of Adoption shall: (1) Confer upon the adopted children the same rights and duties as though they were in fact the legitimate children of the petitioners; (2) Dissolve the authority vested in the parents by nature, of the children; and, (3) Vest the same authority in the petitioners. Furnish the Local Civil Registrar of Cebu City, Philippines with a copy of this Decree of Adoption for registration purposes. SO ORDERED. In so ruling, the lower court was "impelled" by these reasons: (1) The Cang children had, since birth, developed "close filial ties with the Clavano family, especially their maternal uncle," petitioner Ronald Clavano. (2) Ronald and Maria Clara Clavano were childless and, with their printing press, real estate business, export business and gasoline station and mini-mart in Rosemead, California, U.S.A., had substantial assets and income. (3) The natural mother of the children, Anna Marie, nicknamed "Menchu," approved of the adoption because of her heart ailment, near-fatal accident in 1981, and the fact that she could not provide them a secure and happy future as she "travels a lot." (4) The Clavanos could provide the children moral and spiritual direction as they would go to church together and had sent the children to Catholic schools. (5) The children themselves manifested their desire to be adopted by the Clavanos Keith had testified and expressed the wish to be adopted by the Clavanos while the two younger ones were observed by the court to have "snuggled" close to Ronald even though their natural mother was around. On the other hand, the lower court considered the opposition of petitioner to rest on "a very shaky foundation" because of its findings that: (1) Petitioner was "morally unfit to be the father of his children" on account of his being "an improvident father of his family" and an "undisguised Lothario." This conclusion is based on the testimony of his alleged paramour, mother of his two sons and close friend of Anna Marie, Wilma Soco, who said that she and petitioner lived as husband and wife in the very house of the Cangs in Opao, Mandaue City. (2) The alleged deposits of around $10,000 that were of "comparatively recent dates" were "attempts at verisimilitude" as these were joint deposits the authenticity of which could not be verified. (3) Contrary to petitioner's claim, the possibility of his reconciliation with Anna Marie was "dim if not nil" because it was petitioner who "devised, engineered and executed the divorce proceedings at the Nevada Washoe County court." (4) By his naturalization as a U.S. citizen, petitioner "is now an alien from the standpoint of Philippine laws" and therefore, how his "new attachments and loyalties would sit with his (Filipino) children is an open question." Quoting with approval the evaluation and recommendation of the RTC Social Worker in her Child Study Report, the lower court concluded as follows: Simply put, the oppositor Herbert Cang has abandoned his children. And abandonment of a child by its (sic) parent is commonly specified by statute as a ground for dispensing with his consent to its (sic) adoption (Re Cozza, 163 Cal. 514 P. 161, Ann. [As. 1914A, 214]). Indeed, in such case, adoption will be allowed not only without the consent of the

parent, but even against his opposition (Re McKeag, 141 Cal. 403, 74 P. 1039, 99 Am. St. Rep. 80; Re Camp. 131 Gal. 469,63 P. 736, 82 Am. St. Rep. 371; Graham v. Francis, 83 Colo. 346, 265 P. 690, citing R.C.L.; Seibert, 170 Iowa, 561, 153 N.W. 160, citing R.C.L.; Steams v. Allen, 183 Mass. 404, 67 N.E. 349; 97 Am. St. Rep. 441; Wilson v. Otis, 71 N.H. 483, 53 A. 439, 93 Am. St. Rep. 564; Nugent v. Powell, 4 Wyo, 173, 33 P. 23, 20 L.R.A. 199, 62 Am. St. Rep. 17.) 9 Before the Court of Appeals, petitioner 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: Art. 188 of the Family Code requires the written consent of the natural parents of the child to be adopted. It has been held however that the consent of the parent who has abandoned the child is not necessary (Dayrit vs. Piccio, 92 Phil. 729; Santos vs. Ananzanso, 16 SCRA 344). The question therefore is whether or not oppositor may be considered as having abandoned the children. In adoption cases, abandonment connotes any conduct on the part of the parent to forego parental duties and relinquish parental claims to the child, or the neglect or refusal to perform the natural and legal obligations which parents owe their children (Santos vs. Ananzanso, supra), or the withholding of the parent's presence, his care and the opportunity to display voluntary affection. The issue of abandonment is amply covered by the discussion of the first error. Oppositor argues that he has been sending dollar remittances to the children and has in fact even maintained bank accounts in their names. His duty to provide support comes from two judicial pronouncements. The first, the decision in JD-707 CEB, supra, obliges him to pay the children P1,000.00 a month. The second is mandated by the divorce decree of the Nevada, U.S.A. Federal Court which orders him to pay monthly support of US$50.00 for each child. Oppositor has not submitted any evidence to show compliance with the decision in JD-101 CEB, but he has submitted 22 cancelled dollar checks (Exhs. 24 to 45) drawn in the children's names totalling $2,126.98. The last remittance was on October 6, 1987 (Exh. 45). His obligation to provide support commenced under the divorce decree on May 5, 1982 so that as of October 6, 1987, oppositor should have made 53 remittances of $150.00, or a total of $7,950.00. No other remittances were shown to have been made after October 6, 1987, so that as of this date, oppositor was woefully in arrears under the terms of the divorce decree. And since he was totally in default of the judgment in JD-707 CEB, the inevitable conclusion is oppositor had not really been performing his duties as a father, contrary to his protestations. True, it has been shown that oppositor had opened three accounts in different banks, as follows Acct. No. Date Opened Balance Name of Bank 1) 118-606437-4 July 23, 1985 $5,018.50 Great Western Savings, Oct. 29, 1987 Daly City, Cal., U.S.A. 2) 73-166-8 March 5, 1986 3,129.00 Matewan National Bank Oct. 26, 1987 of Williamson, West Virginia, U.S.A. 3) 564-146883 December 31, 1986 2,622.19 Security Pacific National Oct. 29, 1987 Bank, Daly City, Cal., U.S.A. The first and third accounts were opened however in oppositor's name as trustee for Charmaine Cang and Joseph Anthony Cang, respectively. In other words, the accounts are operated and the amounts withdrawable by oppositor himself and it cannot be said that they belong to the minors. The second is an "or" account, in the names of Herbert Cang or Keith Cang. Since Keith is a minor and in the Philippines, said account is operable only by oppositor and the funds withdrawable by him alone. The bank accounts do not really serve what oppositor claimed in his offer of evidence "the aim and purpose of providing for a better future and security of his family." 10 Petitioner moved to reconsider the decision of the Court of Appeals. He emphasized that the decree of legal separation was not based on the merits of the case as it was based on a manifestation

amounting to a compromise agreement between him and Anna Marie. That he and his wife agreed upon the plan for him to leave for the United States was borne out by the fact that prior to his departure to the United States, the family lived with petitioner's parents. Moreover, he alone did not instigate the divorce proceedings as he and his wife initiated the "joint complaint" for divorce. Petitioner argued that the finding that he was not fit to rear and care for his children was belied by the award to him of custody over the children in Civil Case No. JD-707. He took exception to the appellate court's findings that as an American citizen he could no longer lay claim to custody over his children because his citizenship would not take away the fact that he "is still a father to his children." As regards his alleged illicit relationship with another woman, he had always denied the same both in Civil Case No. JD-707 and the instant adoption case. Neither was it true that Wilma Soco was a neighbor and family friend of the Clavanos as she was residing in Mandaue City seven (7) kilometers away from the Clavanos who were residents of Cebu City. Petitioner insisted that the testimony of Wilma Soco should not have been given weight for it was only during the hearing of the petition for adoption that Jose Clavano, a brother of Ronald, came to know her and went to her residence in Iligan City to convince her to be a witness for monetary considerations. Lastly, petitioner averred that it would be hypocritical of the Clavanos to claim that they could love the children much more than he could. 11 ISSUE: Can minor children be legally adopted without the written consent of a natural parent on the ground that the latter has abandoned them? RULING: 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. Art. 31 of P.D. No. 603 provides Art. 31. Whose Consent is Necessary. The written consent of the following to the adoption shall be necessary: (1) The person to be adopted, if fourteen years of age or, over;(2) The natural parents of the child or his legal guardian of the Department of Social Welfare or any duly licensed child placement agency under whose care the child may be; (3) The natural children, fourteen years and above, of the adopting parents. (Emphasis supplied) On December 17, 1986, then President Corazon C. Aquino issued Executive Order No. 91 amending Articles 27, 28, 29, 31, 33 and 35 of the Child and Youth Welfare Code. As thus amended, Article 31 read: Art. 31. Whose Consent is Necessary. The written consent of the following to the adoption shall be necessary: (1) The person to be adopted, if fourteen years of age or over; (2) The natural parents of the child or his legal guardian after receiving counseling and appropriate social services from the Ministry of Social Services and Development or from a duly licensed childplacement agency; (3) The Ministry of Social Services and Development or any duly licensed child-placement agency under whose care and legal custody the child may be; (4) The natural children, fourteen years and above, of the adopting parents. (Emphasis supplied) 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. 12 As such, when private respondents 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 latter's spouse, if any; and (5) The spouse, if any, of the person adopting or to be adopted. (Emphasis 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 a written consent to the adoption signed by the child, if fourteen years of age or over and not incompetent, and by the child's spouse, if any, and by each of its known living parents who is not insane or hopelessly intemperate or has not abandoned the child, or if the child is in the custody of an orphan asylum, children's home, or benevolent society or person, by the proper officer or officers of such asylum, home, or society, or by such persons; but if the child is illegitimate and has not been recognized, the consent of its father to the adoption shall not be required. (Emphasis supplied) 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 13 or that such parent is "insane or hopelessly intemperate." The court may acquire jurisdiction over the case even, without the written consent of the parents or one of the parents provided that the petition for adoption alleges facts sufficient to warrant exemption from compliance therewith. This is in consonance with the liberality with which this Court treats the procedural aspect of adoption. Thus, the Court declared: . . . . The technical rules of pleading should not be stringently applied to adoption proceedings, and it is deemed more important that the petition should contain facts relating to the child and its parents, which may give information to those interested, than that it should be formally correct as a pleading. Accordingly, it is generally held that a petition will confer jurisdiction if it substantially complies with the adoption statute, alleging all facts necessary to give the court jurisdiction. 14 In the instant case, only the affidavit of consent of the natural mother was attached to the petition for adoption. Petitioner's consent, as the natural father is lacking. Nonetheless, the petition sufficiently alleged the fact of abandonment of the minors for adoption by the natural father as follows: 3. That the children's mother, sister of petitioner RONALD V. CLAVANO, has given her express consent to this adoption, as shown by Affidavit of Consent, Annex "A". Likewise, the written consent of Keith Cang, now 14 years of age appears on page 2 of this petition; However, the father of the children, Herbert Cang, had already left his wife and children and had already divorced the former, as evidenced by the xerox copy of the DECREE OF DIVORCE issued by the County of Washoe, State of Nevada, U.S.A. (Annex "B") which was filed at the instance of Mr. Cang, not long after he abandoned his family to live in the United States as an illegal immigrant. 15 The allegations of abandonment in the petition for adoption, even absent the written consent of petitioner, sufficiently vested the lower court with jurisdiction since abandonment of the child by his natural parents is one of the circumstances under which our statutes and jurisprudence 16 dispense with the requirement of written consent to the adoption of their minor children. However, in cases where the father opposes the adoption primarily because his consent thereto was not sought, the matter of whether he had abandoned his child becomes a proper issue for determination. The issue of abandonment by the oppositor natural parent is a preliminary issue that an adoption court must first confront. Only upon, failure of the oppositor natural father to prove to the satisfaction of the court that he did not abandon his child may the petition for adoption be considered on its merits. As a rule, factual findings of the lower courts are final and binding upon this Court. 17 This Court is not expected nor required to examine or contrast the oral and documentary evidence submitted by the parties. 18 However, although this Court is not a trier of facts, it has the

authority to review and reverse the factual findings of the lower courts if it that these do not conform to the evidence on record. 19 In Reyes v. Court of Appeals, 20 this Court has held that the exceptions to the rule that factual findings of the trial court are final and conclusive and may not be reviewed on appeal are the following: (1) when the inference made is manifestly mistaken, absurd or impossible; (2) when there is a grave abuse of discretion; (3) when the finding is grounded entirely on speculations, surmises or conjectures; (4) when the judgment of the Court of Appeals is based on misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) when the findings of the Court of Appeals are contrary to those of the trial court; (8) when the findings of fact are conclusions without citation of specific evidence on which they are based; (9) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion and (10) when the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence on record. 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 21 on the issue of whether petitioner has so abandoned his children, thereby making his consent to the adoption unnecessary. In its ordinary sense, the word "abandon'' means to forsake entirely, to forsake or renounce utterly. The dictionaries trace this word to the root idea of "putting under a ban." The emphasis is on the finality and publicity with which a thing or body is thus put in the control of another, hence, the meaning of giving up absolutely, with intent never to resume or claim one's rights or interests. 22 In reference to abandonment of a child by his parent, the act of abandonment imports "any conduct of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child." It means "neglect or refusal to perform the natural and legal obligations of care and support which parents owe their children." 23 In the instant case, records disclose that petitioner's 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, withoutfinancial and moral desertion, is not tantamount to abandonment. 24 While admittedly, petitioner was physically absent as he was then in the United States, he was not remiss in his natural and legal obligations of love, care and support for his children. He maintained regular communication with his wife and children through letters and telephone. He used to send packages by mail and catered to their whims. Petitioner's testimony on the matter is supported by documentary evidence consisting of the following handwritten letters to him of both his wife and children: 1. Exh. 1 a 4-page updated letter of Menchu (Anna Marie) addressed to "Dear Bert" on a C. Westates Carbon Phil. Corp. stationery. Menchu stated therein that it had been "a long time since the last time you've heard from me excluding that of the phone conversation we've had." She discussed petitioner's intention to buy a motorbike for Keith, expressing apprehension over risks that could be engendered by Keith's use of it. She said that in the "last phone conversation" she had with petitioner on the birthday of "Ma," she forgot to tell petitioner that Keith's voice had changed; he had become a "bagito" or a teen-ager with many "fans" who sent him Valentine's cards. She told him how Charmaine had become quite a talkative "almost dalaga" who could carry on a conversation with her angkongand how pretty she was in white dress when she won among the candidates in the Flores de Mayoafter she had prayed so hard for it. She informed him, however, that she was worried because Charmaine was vain and wont to extravagance as she loved clothes. About Joeton (Joseph Anthony), she told petitioner that the boy was smart for his age and "quite spoiled" being the youngest of the children in Lahug. Joeton was mischievous but Keith was his idol with whom he would sleep anytime. She admitted having said so much about the children-because they might not have informed petitioner of "some happenings and spices of life" about themselves. She said that it was "just very exciting to know how they've

grown up and very pleasant, too, that each of them have (sic) different characters." She ended the letter with the hope that petitioner was "at the best of health." After extending her regards "to all," she signed her name after the word "Love." This letter was mailed on July 9, 1986 from Cebu to petitioner whose address was P.O. Box 2445, Williamson, West Virginia 25661 (Exh. 1D). 2. Exh. 2 letter dated 11/13/84 on a green stationery with golden print of "a note from Menchu" on the left upper corner. Anna Marie stated that "we" wrote to petitioner on Oct. 2, 1984 and that Keith and Joeton were very excited when petitioner "called up last time." She told him how Joeton would grab the phone from Keith just so petitioner would know what he wanted to order. Charmaine, who was asleep, was so disappointed that she missed petitioner's call because she also wanted something that petitioner should buy. Menchu told petitioner that Charmaine wanted a pencil sharpener, light-colored T-shirts for her walking shorts and a (k)nap sack. Anna Marie informed petitioner that the kids were growing up and so were their needs. She told petitioner to be "very fatherly" about the children's needs because those were expensive here. For herself, Anna Marie asked for a subscription of Glamour and Vogue magazines and that whatever expenses he would incur, she would "replace" these. As a postscript, she told petitioner that Keith wanted a size 6 khaki-colored "Sperry topsider shoes." 3. Exh. 3 an undated note on a yellow small piece of paper that reads: Dear Herbert, Hi, how was Christmas and New Year? Hope you had a wonderful one. By the way thanks for the shoes, it was a nice one. It's nice to be thought of at X'mas. Thanks again. Sincerely, 4. Exh. 4 a two-page undated letter of Keith on stationery of Jose Clavano, Inc. addressed to "Dear Dad." Keith told his father that they tried to tell their mother "to stay for a little while, just a few weeks after classes start(s)" on June 16. He informed petitioner that Joeton would be in Kinder I and that, about the motorbike, he had told his mother to write petitioner about it and "we'll see what you're (sic) decision will be." He asked for chocolates, nuts, basketball shirt and shorts, rubber shoes, socks, headband, some clothes for outing and perfume. He told petitioner that they had been going to Labug with their mother picking them up after Angkong or Ama had prepared lunch or dinner. From her aerobics, his mother would go for them in Lahug at about 9:30 or 10:00 o'clock in the evening. He wished his father "luck and the best of health" and that they prayed for him and their other relatives. The letter was ended with "Love Keith." 5. Exh. 5 another undated long letter of Keith. He thanked his father for the Christmas card "with $40.00, $30.00 and $30.00" and the "card of Joeton with $5.00 inside." He told petitioner the amounts following his father's instructions and promise to send money through the mail. He asked his father to address his letter directly to him because he wanted to open his own letters. He informed petitioner of activities during the Christmas season that they enjoyed eating, playing and giving surprises to their mother. He apprised him of his daily schedule and that their mother had been closely supervising them, instructing them to fold their blankets and pile up their pillows. He informed petitioner that Joeton had become very smart while Charmaine, who was also smart, was very demanding of their mother. Because their mother was leaving for the United States on February 5, they would be missing her like they were missing petitioner. He asked for his "things" and $200.00. He told petitioner more anecdotes about Joeton like he would make the sign of the cross even when they would pass by the Iglesia ni Cristo church and his insistence that Aquino was not dead because he had seen him on the betamax machine. For Keith, Charmaine had become "very maldita" who was not always satisfied with her dolls and things but Joeton was full of surprises. He ended the letter with "Love your son, Keith." The letter was mailed on February 6, 1985 (Exh. 5-D). 6. Exh. 6 an undated letter Charmaine. She thanked petitioner for the bathing suit, key chain, pencil box, socks, half shirt, pencil sharpener and $50.00. She reminded him of her birthday on January 23 when she would turn 9 years old. She informed him that she wore size 10 and the size of her feet was IM. They had fun at Christmas in Lahug but classes would start on January 9 although Keith's classes had started on January 6. They would feel sad again because Mommy would be leaving soon. She hoped

petitioner would keep writing them. She signed, "Love, Charmaine." 7. Exh . 7 an undated letter of Keith. He explained to petitioner that they had not been remiss in writing letters to him. He informed him of their trip to Manila they went to Malacaang, Tito Doy Laurel's house, the Ministry of Foreign Affairs, the executive house, Tagaytay for three days and Baguio for one week. He informed him that he got "honors," Charmaine was 7th in her class and Joeton had excellent grades. Joeton would be enrolled in Sacred Heart soon and he was glad they would be together in that school. He asked for his "reward" from petitioner and so with Charmaine and Joeton. He asked for a motorbike and dollars that he could save. He told petitioner that he was saving the money he had been sending them. He said he missed petitioner and wished him the best. He added that petitioner should call them on Sundays. 8. Exh. 8 a letter from Joeton and Charmaine but apparently written by the latter. She asked for money from petitioner to buy something for the school and "something else." She, promised not to spend so much and to save some. She said she loved petitioner and missed him. Joeton said "hi!" to petitioner. After ending the letter with "Love, Joeton and Charmaine," she asked for her prize for her grades as she got seventh place. 9. Exh. 9 undated letter of Keith. He assured petitioner that he had been writing him; that he would like to have some money but he would save them; that he learned that petitioner had called them up but he was not around; that he would be going to Manila but would be back home May 3; that his Mommy had just arrived Thursday afternoon, and that he would be the "official altar boy." He asked petitioner to write them soon. 10. Exh. 10 Keith thanked petitioner for the money he sent. He told petitioner that he was saving some in the bank and he was proud because he was the only one in his group who saved in the bank. He told him that Joeton had become naughty and would claim as his own the shirts sent to Keith by petitioner. He advised petitioner to send pants and shirts to Joeton, too, and asked for a pair of topsider shoes and candies. He informed petitioner that he was a member of the basketball team and that his mom would drive for his group. He asked him to call them often like the father of Ana Christie and to write them when he would call so that they could wait for it. He informed petitioner that they had all grown bigger and heavier. He hoped petitioner would be happy with the letter that had taken him so long to write because he did not want to commit any mistakes. He asked petitioner to buy him perfume (Drakkar) and, after thanking petitioner, added that the latter should buy something for Mommy. 11. Exh. 11 a Christmas card "For My Wonderful Father" dated October 8, 1984 from Keith, Charmaine and Joeton. 12. Exh. 12 another Christmas card, "Our Wish For You" with the year '83 written on the upper right hand corner of the inside page, from Keith, Charmaine and Joeton. 13. Exh. 13 a letter of Keith telling petitioner that he had written him even when their Mom "was there" where she bought them clothes and shoes. Keith asked petitioner for $300.00. Because his mother would not agree to buy him a motorbike, he wanted a Karaoke unit that would cost P12,000.00. He informed petitioner that he would go to an afternoon disco with friends but their grades were all good with Joeton receiving "stars" for excellence. Keith wanted a bow and arrow Rambo toys and G.I. Joe. He expressed his desire that petitioner would come and visit them someday. 14. Exh. 14 a letter of Keith with one of the four pages bearing the date January 1986. Keith told his father that they had received the package that the latter sent them. The clothes he sent, however, fitted only Keith but not Charmaine and Joeton who had both grown bigger. Keith asked for grocery items, toys and more clothes. He asked, in behalf of his mother, for low-heeled shoes and a dress to match, jogging pants, tights and leotards that would make her look sexy. He intimated to petitioner that he had grown taller and that he was already ashamed to be asking for things to buy in the grocery even though his mother had told him not to be shy about it. 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. 25 Exhibits 24 to 45 are copies of checks sent by petitioner to the children from 1985 to 1989. These pieces of evidence are all on record. It is, therefore, quite surprising why the courts below simply glossed over these, ignoring not only evidence on financial support but

also the emotional exchange of sentiments between petitioner and his family. Instead, the courts below emphasized the meagerness of the amounts he sent to his children and the fact that, as regards the bank deposits, these were "withdrawable by him alone." Simply put, the courts below attached a high premium to the prospective adopters' financial status but totally brushed aside the possible repercussion of the adoption on the emotional and psychological well-being of the children. True, Keith had expressed his desire to be adopted by his uncle and aunt. However, his seeming steadfastness on the matter as shown by his testimony is contradicted by his feelings towards his father as revealed in his letters to him. It is not at all farfetched to conclude that Keith's testimony was actually the effect of the filing of the petition for adoption that would certainly have engendered confusion in his young mind as to the capability of his father to sustain the lifestyle he had been used to. The courts below emphasized respondents' emotional attachment to the children. This is hardly surprising for, from the very start of their young lives, the children were used to their presence. Such attachment had persisted and certainly, the young ones' act of snuggling close to private respondent Ronald Clavano was not indicative of their emotional detachment from their father. Private respondents, being the uncle and aunt of the children, could not but come to their succor when they needed help as when Keith got sick and private respondent Ronald spent for his hospital bills. In a number of cases, this Court has held that parental authority cannot be entrusted to a person simply because he could give the child a larger measure of material comfort than his natural parent. Thus, in David v. Court of Appeals, 26 the Court awarded custody of a minor illegitimate child to his mother who was a mere secretary and market vendor instead of to his affluent father who was a married man, not solely because the child opted to go with his mother. The Court said: Daisie and her children may not be enjoying a life of affluence that private respondent promises if the child lives with him. It is enough, however, that petitioner is earning a decent living and is able to support her children according to her means. In Celis v. Cafuir 27 where the Court was confronted with the issue of whether to award custody of a child to the natural mother or to a foster mother, this Court said: This court should avert the tragedy in the years to come of having deprived mother and son of the beautiful associations and tender, imperishable memories engendered by the relationship of parent and child. We should not take away from a mother the opportunity of bringing up her own child even at the cost of extreme sacrifice due to poverty and lack of means; so that afterwards, she may be able to look back with pride and a sense of satisfaction at her sacrifices and her efforts, however humble, to make her dreams of her little boy come true. We should not forget that the relationship between a foster mother and a child is not natural but artificial. If the child turns out to be a failure or forgetful of what its foster parents had done for him, said parents might yet count and appraise (sic) all that they have done and spent for him and with regret consider all of it as a dead loss, and even rue the day they committed the blunder of taking the child into their hearts and their home. Not so with a real natural mother who never counts the cost and her sacrifices, ever treasuring memories of her associations with her child, however unpleasant and disappointing. Flesh and blood count. . . . . In Espiritu v. Court of Appeals, 28 the Court stated that "(I)n ascertaining the welfare and best interests of the child, courts are mandated by the Family Code to take into account all relevant considerations." Thus, in awarding custody of the child to the father, the Court said: A scrutiny of the pleadings in this case indicates that Teresita, or at least, her counsel are more intent on emphasizing the "torture and agony" of a mother separated from her children and the humiliation she suffered as a, result of her character being made a key issue in court rather than the feelings and future, the best interests and welfare of her children. While the bonds between a mother and her small child are special in nature, either parent, whether father or mother, is bound to suffer agony and pain if deprived of custody. One cannot say that his or her suffering is greater than that of the other parent. It is not so much the suffering, pride, and other feelings of either parent but the welfare of the child which is the paramount consideration. (Emphasis supplied) 29 Indeed, it would be against the spirit of the

law if financial consideration were to be the paramount consideration in deciding whether to deprive a person of parental authority over his children. There should be a holistic approach to the matter, taking into account the physical, emotional, psychological, mental, social and spiritual needs of the child. 30 The conclusion of the courts below that petitioner abandoned his family needs more evidentiary support other than his inability to provide them the material comfort that his admittedly affluent in-laws could provide. There should be proof that he had so emotionally abandoned them that his children would not miss his guidance and counsel if they were given to adopting parents. The letters he received from his children prove that petitioner maintained the more important emotional tie between him and his children. The children needed him not only because he could cater to their whims but also because he was a person they could share with their daily activities, problems and triumphs. The Court is thus dismayed that the courts below did not look beyond petitioner's "meager" financial support to ferret out other indications on whether petitioner had in fact abandoned his family. The omission of said courts has led us to examine why the children were subjected to the process of adoption, notwithstanding the proven ties that bound them to their father. To our consternation, the record of the case bears out the fact that the welfare of the children was not exactly the "paramount consideration" that impelled Anna Marie to consent to their adoption. In her affidavit of consent, Anna Marie expressly said that leaving the children in the country, as she was want to travel abroad often, was a problem that would naturally hamper her job-seeking abroad. In other words, the adoption appears to be a matter of convenience for her because Anna Marie herself is financially capable of supporting her children. 31 In his testimony, private respondent Ronald swore that Anna Marie had been out of the country for two years and came home twice or three times, 32 thereby manifesting the fact that it was she who actually left her children to the care of her relatives. It was bad enough that their father left their children when he went abroad, but when their mother followed suit for her own reasons, the situation worsened. The Clavano family must have realized this. Hence, when the family first discussed the adoption of the children, they decided that the prospective adopter should be Anna Marie's brother Jose. However, because he had children of his own, the family decided to devolve the task upon private respondents. 33 This couple, however, could not always be in Cebu to care for the children. A businessman, private respondent Ronald Clavano commutes between Cebu and Manila while his wife, private respondent Maria Clara, is an international flight stewardess. 34 Moreover, private respondent Ronald claimed that he could "take care of the children while their parents are away," 35 thereby indicating the evanescence of his intention. He wanted to have the children's surname changed to Clavano for the reason that he wanted to take them to the United States as it would be difficult for them to get a visa if their surname were different from his. 36 To be sure, he also testified that he wanted to spare the children the stigma of being products of a broken home. Nevertheless, a close analysis of the testimonies of private respondent Ronald, his sister Anna Marie and their brother Jose points to the inescapable conclusion that they just wanted to keep the children away from their father. One of the overriding considerations for the adoption was allegedly the state of Anna Marie's health she was a victim of an almost fatal accident and suffers from a heart ailment. However, she herself admitted that her health condition was not that serious as she could still take care of the children. 37 An eloquent evidence of her ability to physically care for them was her employment at the Philippine Consulate in Los Angeles 38 she could not have been employed if her health were endangered. It is thus clear that the Clavanos' attempt at depriving petitioner of parental authority apparently stemmed from their notion that he was an inveterate womanizer. Anna Marie in fact expressed fear that her children would "never be at ease with the wife of their father." 39 Petitioner, who described himself as single in status, denied being a womanizer and father to the sons of Wilma Soco. 40 As to whether he was telling the truth is beside the point. Philippine society, being comparatively conservative and traditional, aside from being Catholic in orientation, it does not countenance womanizing on the part of a family man, considering the

baneful effects such irresponsible act visits on his family. Neither may the Court place a premium on the inability of a man to distinguish between siring children and parenting them. Nonetheless, the actuality that petitioner carried on an affair with a paramour cannot be taken as sufficient basis for the conclusion that petitioner was necessarily an unfit father. 41Conventional wisdom and common human experience show that a "bad" husband does not necessarily make a "bad" father. That a husband is not exactly an upright man is not, strictly speaking, a sufficient ground to deprive him as a father of his inherent right to parental authority over the children. 42 Petitioner has demonstrated his love and concern for his children when he took the trouble of sending a telegram 43 to the lower court expressing his intention to oppose the adoption immediately after learning about it. He traveled back to this country to attend to the case and to testify about his love for his children and his desire to unite his family once more in the United States. 44 Private respondents themselves explained why petitioner failed to abide by the agreement with his wife on the support of the children. Petitioner was an illegal alien in the United States. As such, he could not have procured gainful employment. Private respondents failed to refute petitioner's testimony that he did not receive his share from the sale of the conjugal home, 45 pursuant to their manifestation/compromise agreement in the legal separation case. Hence, it can be reasonably presumed that the proceeds of the sale redounded to the benefit of his family, particularly his children. The proceeds may not have lasted long but there is ample evidence to show that thereafter, petitioner tried to abide by his agreement with his wife and sent his family money, no matter how "meager." The liberality with which this Court treats matters leading to adoption insofar as it carries out the beneficent purposes of the law to ensure the rights and privileges of the adopted child arising therefrom, ever mindful that the paramount consideration is the overall benefit and interest of the adopted child, should be understood in its proper context and perspective. The Court's position, should not be misconstrued or misinterpreted as to extend to inferences beyond the contemplation of law and jurisprudence. 46 The discretion to approve adoption proceedings is not to be anchored solely on best interests of the child but likewise, with due regard to the natural rights of the parents over the child. 47 In this regard, this Court notes private respondents' reliance on the manifestation/compromise agreement between petitioner and Anna Marie which became the basis of the decree of legal separation. According to private respondents' counsel, 48 the authority given to Anna Marie by that decree to enter into contracts as a result of the legal separation was "all embracing" 49and, therefore, included giving her sole consent to the adoption. This conclusion is however, anchored on the wrong premise that the authority given to the innocent spouse to enter into contracts that obviously refer to their conjugal properties, shall include entering into agreements leading to the adoption of the children. Such conclusion is as devoid of a legal basis as private respondents' apparent reliance on the decree of legal separation for doing away with petitioner's consent to the adoption. The transfer of custody over the children to Anna Marie by virtue of the decree of legal separation did not, of necessity; deprive petitioner of parental authority for the purpose of placing the children up for adoption. Article 213 of the Family Code states: ". . . in case of legal separation of parents, parental authority shall be exercised by the parent designated by the court." In awarding custody, 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." If should be noted, however, that the law only confers on the innocent spouse the "exercise" of parental authority. Having custody of the child, the innocent spouse shall implement the sum of parental rights with respect to his rearing and care. The innocent spouse shall have the right to the child's services and earnings, and the right to direct his activities and make decisions regarding his care and control, education, health and religion. 50 In a number of cases, this Court has considered parental authority, the joint exercise of which is vested by the law upon the parents, 51 as . . . a mass of rights and obligations which the law grants to parents for the purpose of the children's physical preservation and development, as well as the cultivation of their intellect and the education of

their hearts and senses. As regards parental authority, "there is no power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the minor." Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children's home or an orphan institution. 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. Even if a definite renunciation is manifest, the law still disallows the same. The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep them in their custody and company. 52 (Emphasis supplied) As such, in instant case, petitioner may not be deemed as having been completely deprived of parental authority, notwithstanding the award of custody to Anna Marie in the legal separation case. To reiterate, that award was arrived at by the lower court on the basis of the agreement of the spouses. While parental authority may be waived, as in law it may be subject to a compromise, 53 there was no factual finding in the legal separation case that petitioner was such an irresponsible person that he should be deprived of custody of his children or that there are grounds under the law that could deprive him of parental authority. In fact, in the legal separation case, the court thereafter ordered the transfer of custody over the children from Anna Marie back to petitioner. The order was not implemented because of Anna Marie's motion for reconsideration thereon. The Clavano family also vehemently objected to the transfer of custody to the petitioner, such that the latter was forced to file a contempt charge against them. 54 The law is clear that either parent may lose parental authority over the child only for a valid reason. No such reason was established in the legal separation case. In the instant case for adoption, the issue is whether or not petitioner had abandoned his children as to warrant dispensation of his consent to their adoption. Deprivation of parental authority is one of the effects of a decree of adoption. 55 But there cannot be a valid decree of adoption in this case precisely because, as this Court has demonstrated earlier, the finding of the courts below 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. As regards the divorce obtained in the United States, this Court has ruled in Tenchavez v. Escao 56 that a divorce obtained by Filipino citizens after the effectivity of the Civil Code is not recognized in this jurisdiction as it is contrary to State policy. While petitioner is now an American citizen, as regards Anna Marie who has apparently remained a Filipino citizen, the divorce has no legal effect. Parental authority is a constitutionally protected State policy borne out of established customs and tradition of our people. Thus, in Silva v. Court of Appeals, 57 a case involving the visitorial rights of an illegitimate parent over his child, the Court expressed the opinion that: Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their upbringing and safeguard their best interest and welfare. This authority and responsibility may not be unduly denied the parents; neither may it be renounced by them. Even when the parents are estranged and their affection for each other is lost, the attachment and feeling for their offsprings invariably remain unchanged. Neither the law not the courts allow this affinity to suffer absent, of course, any real, grave and imminent threat to the well being of the child. Since the incorporation of the law concerning adoption in the Civil Code, there has been a pronounced trend to place emphasis in adoption proceedings, not so much on the need of childless couples for a child, as on the paramount interest, of a child who needs the love and care of parents. After the passage of the Child and Youth Welfare Code and the Family Code, the discernible trend has impelled the enactment of Republic Act No. 8043 on Intercountry, Adoption 58 and Republic Act No. 8552 establishing the rules on the domestic adoption of Filipino children. 59 The case at bar applies the relevant provisions of these recent laws, such as the following policies in the "Domestic Adoption Act of 1998": (a) To ensure that every child

remains under the care and custody of his/her parent(s) and be provided with love, care, understanding and security towards the full and harmonious development of his/her personality. 60 (b) In all matters relating to the care, custody and adoption of a child, his/her interest shall be the paramount consideration in accordance with the tenets set forth in the United Nations (UN) Convention on the Rights of the Child.61 (c) To prevent the child from unnecessary separation from his/her biological parent(s). 62 Inasmuch as the Philippines is a signatory to the United Nations Convention on the Rights of the Child, the government and its officials are duty bound to comply with its mandates. Of particular relevance to instant case are the following provisions: States Parties shall respect the responsibilities, rights and duties of parents . . . to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. 63 States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests. 64 A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents . . . 65 States Parties shall respect the rights and duties of the parents . . . to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. 66 Underlying the policies and precepts in international conventions and the domestic statutes with respect to children is the overriding principle that all actuations should be in the best interests of the child. This is not, however, to be implemented in derogation of the primary right of the parent or parents to exercise parental authority over him. The rights of parents vis--vis that of their children are not antithetical to each other, as in fact, they must be respected and harmonized to the fullest extent possible. Keith, Charmaine and Joseph Anthony have all grown up. Keith and Charmaine are now of legal age while Joseph Anthony is approaching eighteen, the age of majority. For sure, they shall be endowed with the discretion to lead lives independent of their parents. This is not to state that this case has been rendered moot and academic, for their welfare and best interests regarding their adoption, must be determined as of the time that the petition for adoption was filed. 67 Said petition must be denied as it was filed without the required consent of their father who, by law and under the facts of the case at bar, has not abandoned them. WHEREFORE, the instant petition for review on certiorari is hereby GRANTED. The questioned Decision and Resolution of the Court of Appeals, as well as the decision of the Regional Trial Court of Cebu, are SET ASIDE thereby denying the petition for adoption of Keith, Charmaine and Joseph Anthony, all surnamed Cang, by the spouse respondents Ronald and Maria Clara Clavano. This Decision is immediately executory.

G.R. No. L-22170 September 23, 1966 IN THE MATTER OF THE ADOPTION OF THE MINOR BERTHA ANN RIVERA. ROBERT H. CATHEY and HELEN O. CATHEY, petitioners and appellant, vs. REPUBLIC OF THE PHILIPPINES, oppositor and appellee. L. F. Lansangan for petitioners and appellants. Office of the Solicitor General for oppositor and appellee. BENGZON, J.P., J.: On January 26, 1963, the spouses Robert H. Cathey and Helen O. Cathey petitioned the Court of Juvenile and Domestic Relations for the adoption of the minor Bertha Ann Rivera. Among other things their petition alleged that petitioners are both of legal age and residents of Manila; that Robert Cathey is an American citizen, residing in the Philippines since 1945 and Helen Cathey is a Filipino citizen residing here since birth; that they had the care and custody of the child Bertha Ann Rivera three days after her birth on January 19, 1963; that Bertha is the natural child of Violeta O. Rivera who has given her written consent to the adoption; that a copy of said consent is attached as Annex A to the petition; that the child's natural father is unknown; that petitioners have no children and are qualified to adopt. Subsequently, upon orders of the Court, the petition was amended to further allege that petitioners are permanent residents living at 1331 Carola St., Sampaloc, Manila, and to attach thereto the child's birth certificate. After petitioners had presented their evidence, without opposition from the Solicitor General, the Juvenile and Domestic Relations Court, on August 5, 1963, rendered a decision that denied the petition, for two reasons: (1) It was not convinced that genuine efforts were exerted to present Violeta O. Rivera before the Court, for inspite of her refusal to testify, other remedies could have been availed of under the Rules of Court to obtain her testimony; (2) As an alien, Robert Cathey is not qualified to adopt. Petitioner appealed therefrom to Us, thereby raising questions purely of law. Article 340 of the New Civil Code on consent to adoption provides that the written consent of the following shall be necessary: "(1) the person to be adopted, if fourteen years of age or over; (2) the parents, guardian or person in charge of the person to be adopted." Section 3 of Rule 100 of the Old Rules of Court (now Sec. 3 of Rule 99) likewise provides: SEC. 3. Consent to adoption.There shall be filed with the petition a written consent to the adoption signed by the child, if over fourteen years of age and not incompetent and by each of its known living parents who is not insane or hopelessly intemperate or has not abandoned such child, or if there are no such parents by the general guardian or guardian adlitem of the child, or if the child is in the custody of an orphan asylum, children's home, or benevolent society or person, by the proper officer or officers of such asylum, home, or society, or by such person; but if the child is illegitimate and has not been recognized, the consent of its father to the adoption shall not be required. From these provisions, as correctly pointed out by petitioners, the requirement as to consent has been met, for both our substantive and procedural laws do not further require the testimony of the consenting parent before the court aside from the requisite written consent attached to the petition. And contrary to the court's opinion that genuine efforts were not exerted to bring the mother to testify before it, the evidence before Us shows that petitioners, after their own efforts had failed (Tsn of May 8, 1963, pp. 14, 29), sought the help of the Chief of Police of Angeles, Pampanga to locate the mother. Patrolman Mariano Carbungco the investigator assigned to locate the mother, finally found her in Pauline's Cavern where she worked as a night club hostess. She refuse to reveal her residence and to testify in court, but she re-affirmed the fact that she has given her written consent to the adoption. Patrolman Carbungo executed an affidavit (Exhibit F) where such facts were attested to. Subsequently, she could not be found anymore. While it would have been ideal, to remove all possible doubts, for the mother to have presented in court, the primary consideration the welfare of the child should not be prejudiced by the absence of it in view of the circumstances showing that the petitioners did all they could and all that reasonably could have been expected from them. Even the Solicitor General, concerned about the child's welfare, filed a brief praying for the adoption to be granted, reasoning that the mother's act of leaving the baby to the Catheys three days after her birth constituted abandonment which under Sec. 3, Rule 100 (now Sec. 3, Rule 99) even dispenses

with the need for consent. This, the Solicitor General believes, coupled with the affidavit of consent (Exhibit B) reaffirmed by her to Pat. Carbungco also, show that she too, a mother, with the interests of her child at heart, favors her adoption. Anent the alienage of petitioner Robert H. Cathey, not all aliens are disqualified to adopt. Article 335 of the New Civil Code provides: ART. 335. The following cannot adopt: x x x x x x x x x (4) Non-resident aliens; (5) Resident aliens with whose government the Republic of the Philippines has broken diplomatic relations; As this Court pointed out through Mr. Justice J.B.L. Reyes in Uggi Therkelsen v. Republic, L-21951, November 27, 1964: "the present Civil Code in force (Article 335) only disqualifies from being adopters aliens that are either (a) non-residents or (b) who are residents but the Republic of the Philippines has broken diplomatic relations with their government. Outside of these two cases, alienage by itself alone does not disqualify a foreigner from adopting under our laws." Petitioner, Robert H. Cathey though an American citizen, is a resident alien entitled to remain in the Philippines, as his Immigrant Certificate of Residence (Exhibit D) shows. He is legally married to Helen Olalia and presently is the administrative officer of the U.S. Naval Construction office at Clark Air Base with an annual compensation of $6,295.00 and has P25,000 worth of personal properties in the Philippines. As petitioners spouses have no child of their own, they wish to adopt Bertha Ann Rivera and thus make her their heir. The welfare of the child being the paramount consideration under the law (Art. 363, New Civil Code), the child now sought to be adopted being virtually unwanted by her own mother, who, by the way, has seven other children to feed (Tsn of May 2, 1963, p. 11), We see no reason why the adoption should not be granted. 1awphl.nt Wherefore, the judgment appealed from is hereby reversed and the court a quo is directed to allow the adoption sought. No costs. So ordered. G.R. No. 148311. March 31, 2005 IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA HONORATO B. CATINDIG, petitioner. D E C I S I O N SANDOVAL-GUTIERREZ, J.: May an illegitimate child, upon adoption by her natural father, use the surname of her natural mother as her middle name? This is the issue raised in the instant case. The facts are undisputed. On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition1 to adopt his minor illegitimate childStephanie Nathy Astorga Garcia. He alleged therein, among others, that Stephanie was born on June 26, 1994;2 that her mother is Gemma Astorga Garcia; that Stephanie has been using her mothers middle name and surname; and that he is now a widower and qualified to be her adopting parent. He prayed that Stephanies middle name Astorga be changed to "Garcia," her mothers surname, and that her surname "Garcia" be changed to "Catindig," his surname. On March 23, 2001,3 the trial court rendered the assailed Decision granting the adoption, thus: "After a careful consideration of the evidence presented by the petitioner, and in the absence of any opposition to the petition, this Court finds that the petitioner possesses all the qualifications and none of the disqualification provided for by law as an adoptive parent, and that as such he is qualified to maintain, care for and educate the child to be adopted; that the grant of this petition would redound to the best interest and welfare of the minor Stephanie Nathy Astorga Garcia. The Court further holds that the petitioners care and custody of the child since her birth up to the present constitute more than enough compliance with the requirement of Article 35 of Presidential Decree No. 603. WHEREFORE, finding the petition to be meritorious, the same is GRANTED. Henceforth, Stephanie Nathy Astorga Garcia is hereby freed from all obligations of obedience and maintenance with respect to her natural mother, and for civil purposes, shall henceforth be the petitioners legitimate child and legal heir. Pursuant to Article 189 of the Family Code of the Philippines, the minor shall be known as STEPHANIE NATHY CATINDIG. Upon finality of this Decision, let the same be entered in the Local Civil Registrar concerned pursuant to Rule 99 of the Rules of Court. Let copy of this Decision be furnished the National Statistics Office for record purposes.

SO ORDERED."4 On April 20, 2001, petitioner filed a motion for clarification and/or reconsideration5 praying that Stephanie should be allowed to use the surname of her natural mother (GARCIA) as her middle name. On May 28, 2001,6 the trial court denied petitioners motion for reconsideration holding that there is no law or jurisprudence allowing an adopted child to use the surname of his biological mother as his middle name. Hence, the present petition raising the issue of whether an illegitimate child may use the surname of her mother as her middle name when she is subsequently adopted by her natural father. Petitioner submits that the trial court erred in depriving Stephanie of a middle name as a consequence of adoption because: (1) there is no law prohibiting an adopted child from having a middle name in case there is only one adopting parent; (2) it is customary for every Filipino to have as middle name the surname of the mother; (3) the middle name or initial is a part of the name of a person; (4) adoption is for the benefit and best interest of the adopted child, hence, her right to bear a proper name should not be violated; (5) permitting Stephanie to use the middle name "Garcia" (her mothers surname) avoids the stigma of her illegitimacy; and; (6) her continued use of "Garcia" as her middle name is not opposed by either the Catindig or Garcia families. The Republic, through the Office of the Solicitor General (OSG), agrees with petitioner that Stephanie should be permitted to use, as her middle name, the surname of her natural mother for the following reasons: First, it is necessary to preserve and maintain Stephanies filiation with her natural mother because under Article 189 of the Family Code, she remains to be an intestate heir of the latter. Thus, to prevent any confusion and needless hardship in the future, her relationship or proof of that relationship with her natural mother should be maintained. Second, there is no law expressly prohibiting Stephanie to use the surname of her natural mother as her middle name. What the law does not prohibit, it allows. Last, it is customary for every Filipino to have a middle name, which is ordinarily the surname of the mother. This custom has been recognized by the Civil Code and Family Code. In fact, the Family Law Committees agreed that"the initial or surname of the mother should immediately precede the surname of the father so that the second name, if any, will be before the surname of the mother."7 We find merit in the petition. Use Of Surname Is Fixed By Law For all practical and legal purposes, a man's name is the designation by which he is known and called in the community in which he lives and is best known. It is defined as the word or combination of words by which a person is distinguished from other individuals and, also, as the label or appellation which he bears for the convenience of the world at large addressing him, or in speaking of or dealing with him.8 It is both of personal as well as public interest that every person must have a name. The name of an individual has two parts: (1) the given or proper name and (2) the surname or family name. The given or proper name is that which is given to the individual at birth or at baptism, to distinguish him from other individuals. The surname or family name is that which identifies the family to which he belongs and is continued from parent to child. The given name may be freely selected by the parents for the child, but the surname to which the child is entitled is fixed by law.9 Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which regulate the use of surname10 of an individual whatever may be his status in life, i.e., whether he may be legitimate or illegitimate, an adopted child, a married woman or a previously married woman, or a widow, thus: "Art. 364. Legitimate and legitimated children shall principally use the surname of the father. Art. 365. An adopted child shall bear the surname of the adopter. x x x Art. 369. Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father. Art. 370. A married woman may use: (1) Her maiden first name and surname and add her husband's surname, or (2) Her maiden first name and her husband's surname or (3) Her husband's full name, but prefixing a word indicating that she is his wife, such as Mrs. Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall

resume her maiden name andsurname. If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to continue employing her former husband's surname, unless: (1) The court decrees otherwise, or (2) She or the former husband is married again to another person. Art. 372. When legal separation has been granted, the wife shall continue using her name and surnameemployed before the legal separation. Art. 373. A widow may use the deceased husband's surname as though he were still living, in accordance with Article 370. Art. 374. In case of identity of names and surnames, the younger person shall be obliged to use such additional name or surname as will avoid confusion. Art. 375. In case of identity of names and surnames between ascendants and descendants, the word Junior can be used only by a son. Grandsons and other direct male descendants shall either: (1) Add a middle name or the mother's surname, (2) Add the Roman numerals II, III, and so on. x x x" Law Is Silent As To The Use Of Middle Name As correctly submitted by both parties, there is no law regulating the use of a middle name. Even Article 17611 of the Family Code, as amended by Republic Act No. 9255, otherwise known as "An Act Allowing Illegitimate Children To Use The Surname Of Their Father," is silent as to what middle name a child may use. The middle name or the mothers surname is only considered in Article 375(1), quoted above, in case there is identity of names and surnames between ascendants and descendants, in which case, the middle name or the mothers surname shall be added. Notably, the law is likewise silent as to what middle name an adoptee may use. Article 365 of the Civil Code merely provides that "an adopted child shall bear the surname of the adopter." Also, Article 189 of the Family Code, enumerating the legal effects of adoption, is likewise silent on the matter, thus: "(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters; x x x" However, as correctly pointed out by the OSG, the members of the Civil Code and Family Law Committees that drafted the Family Code recognized the Filipino custom of adding the surname of the childs mother as his middle name. In the Minutes of the Joint Meeting of the Civil Code and Family Law Committees, the members approved the suggestion that the initial or surname of the mother should immediately precede the surname of the father, thus "Justice Caguioa commented that there is a difference between the use by the wife of the surname and that of the child because the fathers surname indicates the family to which he belongs, for which reason he would insist on the use of the fathers surname by the child but that, if he wants to, the child may also use the surname of the mother. Justice Puno posed the question: If the child chooses to use the surname of the mother, how will his name be written? Justice Caguioa replied that it is up to him but that his point is that it should be mandatory that the child uses the surname of the father and permissive in the case of the surname of the mother. Prof. Baviera remarked that Justice Caguioas point is covered by the present Article 364, which reads: Legitimate and legitimated children shall principally use the surname of the father. Justice Puno pointed out that many names change through no choice of the person himself precisely because of this misunderstanding. He then cited the following example: Alfonso Ponce Enriles correct surname is Ponce since the mothers surname is Enrile but everybody calls him Atty. Enrile. Justice Jose Gutierrez Davids family name is Gutierrez and his mothers surname is David but they all call him Justice David. Justice Caguioa suggested that the proposed Article (12) be modified to the effect that it shall be mandatory on the child to use the surname of the father but he may use the surname of the mother by way of an initial or a middle name. Prof. Balane stated that they take note of this for inclusion in the Chapter on Use of Surnames since in the proposed Article (10) they are just enumerating the rights of legitimate children so that the details can be covered in the appropriate chapter. x x x Justice Puno remarked that there is logic in the simplification suggested by Justice Caguioa that the surname of the father should always be last because there are so many traditions like the

American tradition where they like to use their second given name and the Latin tradition, which is also followed by the Chinese wherein they even include the Clan name. x x x Justice Puno suggested that they agree in principle that in the Chapter on the Use of Surnames, they should say that initial or surname of the mother should immediately precede the surname of the father so that the second name, if any, will be before the surname of the mother. Prof. Balane added that this is really the Filipino way. The Committee approved the suggestion."12 (Emphasis supplied) In the case of an adopted child, the law provides that "the adopted shall bear the surname of the adopters."13Again, it is silent whether he can use a middle name. What it only expressly allows, as a matter of right and obligation, is for the adoptee to bear the surname of the adopter, upon issuance of the decree of adoption.14 The Underlying Intent of Adoption Is In Favor of the Adopted Child Adoption is defined as the process of making a child, whether related or not to the adopter, possess in general, the rights accorded to a legitimate child.15 It is a juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation.16 The modern trend is to consider adoption not merely as an act to establish a relationship of paternity and filiation, but also as an act which endows the child with a legitimate status.17 This was, indeed, confirmed in 1989, when the Philippines, as aState Party to the Convention of the Rights of the Child initiated by the United Nations, accepted the principle that adoption is impressed with social and moral responsibility, and that its underlying intent is geared to favor the adopted child.18 Republic Act No. 8552, otherwise known as the "Domestic Adoption Act of 1998,"19 secures these rights and privileges for the adopted.20 One of the effects of adoption is that the adopted is deemed to be a legitimate child of the adopter for all intents and purposes pursuant to Article 18921 of the Family Code and Section 1722 Article V of RA 8552.23 Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the rights provided by law to a legitimate child without discrimination of any kind, including the right to bear the surname of her father and her mother, as discussed above. This is consistent with the intention of the members of the Civil Code and Family Law Committees as earlier discussed. In fact, it is a Filipino custom that the initial or surname of the mother should immediately precede the surname of the father. Additionally, as aptly stated by both parties, Stephanies continued use of her mothers surname (Garcia) as her middle name will maintain her maternal lineage. It is to be noted that Article 189(3) of the Family Code and Section 1824, Article V of RA 8552 (law on adoption) provide that the adoptee remains an intestate heir of his/her biological parent. Hence, Stephanie can well assert or claim her hereditary rights from her natural mother in the future. Moreover, records show that Stephanie and her mother are living together in the house built by petitioner for them at 390 Tumana, San Jose, Baliuag, Bulacan. Petitioner provides for all their needs. Stephanie is closely attached to both her mother and father. She calls them "Mama" and "Papa". Indeed, they are one normal happy family. Hence, to allow Stephanie to use her mothers surname as her middle name will not only sustain her continued loving relationship with her mother but will also eliminate the stigma of her illegitimacy. Liberal Construction of Adoption Statutes In Favor Of Adoption It is a settled rule that adoption statutes, being humane and salutary, should be liberally construed to carry out the beneficent purposes of adoption.25 The interests and welfare of the adopted child are of primary and paramount consideration,26 hence, every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law.27 Lastly, Art. 10 of the New Civil Code provides that: "In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail." This provision, according to the Code Commission, "is necessary so that it may tip the scales in favor of right and justice when the law is doubtful or obscure. It will strengthen the determination

of the courts to avoid an injustice which may apparently be authorized by some way of interpreting the law."28 Hence, since there is no law prohibiting an illegitimate child adopted by her natural father, like Stephanie, to use, as middle name her mothers surname, we find no reason why she should not be allowed to do so. WHEREFORE, the petition is GRANTED. The assailed Decision is partly MODIFIED in the sense that Stephanie should be allowed to use her mothers surname "GARCIA" as her middle name. Let the corresponding entry of her correct and complete name be entered in the decree of adoption. SO ORDERED. Panganiban, (Chairman), Corona, Carpio-Morales, and Garcia,

G.R. No. L-20914 December 24, 1965 IN THE MATTER OF THE ADOPTION OF THE MINOR, ENGRACIO GULIGADO, JR. MRS. DINTOY TAN SUAREZ, petitioner-appellee, vs. REPUBLIC OF THE PHILIPPINES, oppositor-appellant. Dominador Sobrevias and Francisco Escudero for petitioner-appellee. Office of the Solicitor General for oppositor-appellant. CONCEPCION, J.: Appeal by the Solicitor General from a decision of the Court of First Instance of Sulu, granting the petition of appellee, Mrs. Dintoy Tan Suarez, for the adoption of the minor Engracio Guligado, Jr., and declaring that the latter shall hereafter be known as Engracio Tan Suarez. Appellant maintains that the lower court erred: 1) in authorizing the adoption, despite the alleged absence of competent proof of the consent thereto of the natural parents of said minor; and 2) in permitting the latter to bear the petitioner's surname as a married woman, although her husband has not joined in the adoption. The minor Engracio Guligado, Jr. is the son of Capt. Engracio Guligado and Guneng T. Guligado. The latter is a younger sister of petitioner herein. Engracio Guligado is, in turn, half-brother of petitioner's husband, Col. Alejandro Suarez, Ret., who has several children by a previous marriage and has expressly consented to the adoption of said child by his wife. Shortly after the birth of Engracio Guligado, Jr. in Jolo, Sulu, on May 28, 1951, his parents left him in the custody of petitioner herein, a resident of said island. Since then, the child had lived continuously with petitioner, whom he regards as his mother, who, in turn, has treated him as such, and supported him, as well as sent him to school. Meanwhile, his natural parents had left Jolo and are now residing in San Juan del Monte, Rizal. Petitioner testified that she had written to them about her intention to apply for the adoption of the minor and that they had given their consent thereto. And understandably so, for, in addition to their close relationship by consanguinity and affinity, petitioner is fairly well off financially, inasmuch as she owns real estate in the Islands of Jolo and Siasi with an aggregate assessed value (for real estate tax purposes) of P73,310, aside from a 35-door building under construction in the Jolo townsite when this case was heard. In fact, petitioner has attached to the petition a statement, subscribed and sworn to before a notary public, on February 4, 1958, by Captain Engracio Guligado and his wife Guneng T. Guligado, confirming the foregoing facts, and expressing their conformity to the adoption of Engracio Guligado, Jr. by petitioner herein, not only for the reasons already adverted to, but, also, because the affiants now have several other children, whereas petitioner has none. However, no testimonial evidence, identifying the signatures on said statement, was introduced by petitioner herein and, hence, the assistant provincial fiscal who appeared at the hearing of this case in the lower court, objected to the admission of said statement, when petitioner offered it as part of her evidence. The lower court did not err in overruling said objection, admitting said statement in evidence, and considering, as a proven fact, that the natural parents of the minor being adopted had given their written consent to the adoption. Apart from the fact that said statement was duly authenticated by a Notary Public, the other evidence on record strongly indicate that it is what it purports to be.

We agree, however, with appellant herein that the minor cannot bear petitioner's surname as a married woman, for her husband has not joined in this petition for adoption and cannot join it, because he has children by a previous marriage. As stated in the case of the adoption of the minor Ana Isabel Henriette Antonia Concepcion Georgiana, L-18284 (April 30, 1963). Since the adoption gives the person adopted the same rights and duties as if he were a legitimate child of the adopter (Art. 341, par. 1, Civil Code), much confusion would indeed result, as correctly pointed out by the Solicitor General, if the minor child herein were allowed to use the surname of the spouse who did not join in the adoption. For one thing, to allow the minor to adopt the surname of the husband of the adopter, would mislead the public into believing that she has also been adopted by the husband, which is not the case. And when later, questions of successional rights arise, the husband's consent to the adoption might be presented to prove that he has actually joined in the adoption. It is to forestall befuddling situations that may arise in the future, that this Court is inclined to apply strictly the provision of the Civil Code to the effect that an adopted child use the surname of the adopter himself or herself, and not that which is acquired by marriage. With the modification that the minor shall hereafter be known as Engracio Tan, the decision appealed from is, therefore, affirmed in all other respects, without special pronouncement as to costs. G.R. No. 139758 January 31, 2000 LUCIEN TRAN VAN NGHIA, represented herein by his fiancee ROSITA ERNIE, petitioner, vs. HON. RUFUS B. RODRIGUEZ, Commissioner on Immigration, COL. ANGELITO Q. TAN, Chief Intelligence Division, Any Guard and ENRICO PANER, Jail Warden, respondents. R E S O L U T I O N QUISUMBING, J.: This is a petition for habeas corpus filed by Rosita Ernie on behalf of petitioner Lucien Tran Van Nghia. Petitioner, a French national, was ordered by the Bureau of Immigration to leave the country in an order dated February 28, 1991.1 He appealed the order to the Office of the President on April 4, 1994, which affirmed the Bureau's order and dismissed petitioner's appeal.2 Petitioner was subsequently deported to Paris on April 11, 19963 and was barred from again entering the Philippines. However, petitioner was able to enter the country on December 20, 1997, using the name Lucien Marcel Tran Van Nghia.4 Thus, he was arrested by agents of the Bureau of Immigration and the Western Police District on November 24, 1998, for having entered the country illegally. He was subsequently charged with violation of Section 45(d) of the Philippine Immigration Act of 1940, as amended.5 On December 1998, petitioner filed a petition for habeas corpus before the Regional Trial Court, Manila, Branch 50. Petitioner alleged that he was arrested and maltreated by immigration and WPD agents, and that his continued detention is without legal basis.6 The RTC denied his petition, after finding legal basis for the detention of petitioner.7 Petitioner appealed the decision to the Court of Appeals but this appeal was later abandoned, after petitioner filed with this Court a petition for certiorari, docketed as G.R. No. 137025.8 On March 3, 1999, we dismissed the petition in G.R. No. 137025.9 Then on September 8, 1999, petitioner filed before this Court the present petition, alleging that his arrest and detention by the Bureau of Immigration are illegal, and praying for the issuance of a writ of habeas corpus. Considering the foregoing procedural antecedents, we find that this is the second petition for habeas corpus filed by petitioner before the courts. It alleges substantially the same matters and contains the same prayer for the issuance of a writ of habeas corpus as the first one filed in 1998. Clearly, the present petition is barred by res judicata. To stress what should be elementary: (a) since petitioner had previously filed a petition for habeas corpus with the RTC; (b) with the same allegations as those now before us; (c) although said petition was denied by the RTC, and (d) abandoned after having been appealed to the CA, and (e) finally dismissed by this Court, the present petition can not be given due course without abusing judicial processes. However, petitioner insists that there is no res judicata since the previous case for habeas

corpus was dismissed by this Court, not on the merits but on technicalities. Petitioner also points out that the two petitions do not involve the same causes of action. He says the previous petition involves petitioner's arrest by immigration agents, while the present petition involves his continued detention. We see no difference in petitioner's contrived distinction. His arguments do not persuade us. They are far from meritorious, as hereafter elucidated. There is res judicata when (1) a judgment had become final; (2) such judgment was rendered on the merits; (3) such judgment was rendered by a court with jurisdiction over the subject matter and parties; and (4) there is identity of parties, subject matter, and causes of action in the previous and subsequent actions.10 A comparative examination of the petition filed before the RTC and the present petition reveals that, indeed, this petition presents the same matters and raises the same issues as those stated in the petition previously filed before the RTC. The parties and the causes of action are the same. The grounds relied upon by petitioner for the issuance of the writ had already been passed upon by the trial court, which dismissed the previous petition after finding legal basis for petitioner's continued detention by the Bureau of Immigration. Petitioner cannot now be allowed to litigate the same matters all over again.11 Petitioner claims that there are different causes of action for the two petitions he filed. Note, however, that as a rule there is identity of causes of action when there is identity of the facts essential to the maintenance of the two actions, or when the same evidence would support and establish said causes of action.12 We see this situation obtaining in the present petition, in the light of the previous one filed by petitioner before the RTC. Both are anchored on the same fact of arrest and detention of petitioner by the Bureau of Immigration; and they have the same evidentiary requirements for either of them to be sustained. Moreover, if res judicata could be found, despite a difference in the form and nature of the two actions,13 what more in this case when the two actions filed are of the same form and nature? Unless petitioner can conjure exceptional arguments to sustain a second plea, we must sustain the view of the Office of the Solicitor General, that a party cannot re-litigate an issue already adjudicated in a previous case; that the present petition violates our rules of procedure; and that it should be dismissed outright because it is barred by prior judgment. Otherwise, we will wreak havoc on the orderly administration of justice.1wphi1.nt In sum, we find the present petition to be utterly devoid of merit. The writ of habeas corpus will not issue where the person alleged to be restrained of his liberty is charged with an offense in the Philippines.14 Here, petitioner is charged with violation of Section 45(d) of the Philippine Immigration Act of 1940, as amended, viz: Sec. 45. Any person who x x x x x x x x x (d) Being a alien, enters the Philippines without inspection and admission by the immigration officials, or obtains entry into the Philippines by willful, false or misleading representation or willful concealment of a material fact; x x x x x x x x x shall be guilty of an offense, and upon conviction thereof, shall be fined not more than one thousand pesos, and imprisoned for not more than two years, and deported if he is an alien. He is now detained because of said charge. And while we do not wish to pre-empt the judgment on the merits of the charge against him, we find his plea for release on a writ of habeas corpus at this time patently without merit. WHEREFORE, the instant petition is DISMISSED. G.R. No. 158802 November 17, 2004 IN RE: THE WRIT OF HABEAS CORPUS FOR REYNALDO DE VILLA (detained at the New Bilibid Prisons, Muntinlupa City) JUNE DE VILLA, petitioner-relator, vs. THE DIRECTOR, NEW BILIBID PRISONS, respondent. D E C I S I O N YNARES-SANTIAGO, J.: This is a petition for the issuance of a writ of habeas corpus under Rule 102 of the Rules of Court. Petitioner Reynaldo de Villa, joined by his son, petitioner-relator June de Villa, seeks a two-fold relief: First, that respondent Director of Prisons justify the basis for the imprisonment of

petitioner Reynaldo de Villa; and second, that petitioner be granted a new trial.1 These reliefs are sought on the basis of purportedly exculpatory evidence, gathered after performing deoxyribonucleic acid (DNA) testing on samples allegedly collected from the petitioner and a child born to the victim of the rape. By final judgment dated February 1, 2001, in People of the Philippines v. Reynaldo de Villa,2 we found petitioner guilty of the rape of Aileen Mendoza, his niece by affinity; sentenced him to suffer the penalty of reclusin perpetua; and ordered him to pay the offended party civil indemnity, moral damages, costs of the suit, and support for Leahlyn Corales Mendoza, the putative child born of the rape. Petitioner is currently serving his sentence at the New Bilibid Prison, Muntinlupa City. As summarized in our Decision dated February 1, 2001, Aileen Mendoza charged petitioner Reynaldo de Villa with rape in an information dated January 9, 1995, filed with the Regional Trial Court of Pasig City. When arraigned on January 26, 1995, petitioner entered a plea of "not guilty."3 During the trial, the prosecution established that sometime in the third week of April 1994, at about 10:00 in the morning, Aileen Mendoza woke up in her family's rented room in Sagad, Pasig, Metro Manila, to find petitioner on top of her. Aileen was then aged 12 years and ten months. She was unable to shout for help because petitioner covered her mouth with a pillow and threatened to kill her. Aileen could not do anything but cry. Petitioner succeeded in inserting his penis inside her vagina. After making thrusting motions with his body, petitioner ejaculated. This encounter allegedly resulted in Aileen's pregnancy, which was noticed by her mother, Leonila Mendoza, sometime in November 1994. When confronted by her mother, Aileen revealed that petitioner raped her. Aileen's parents then brought her to the Pasig Police Station, where they lodged a criminal complaint against petitioner.4 Dr. Rosaline Cosidon, who examined Aileen, confirmed that she was eight months pregnant and found in her hymen healed lacerations at the 5:00 and 8:00 positions. On December 19, 1994, Aileen gave birth to a baby girl whom she named Leahlyn Mendoza.5 In his defense, petitioner alleged that, at the time of the alleged rape, he was already 67 years old. Old age and sickness had rendered him incapable of having an erection. He further averred that Aileen's family had been holding a grudge against him, which accounted for the criminal charges. Finally, he interposed the defense of alibi, claiming that at the time of the incident, he was in his hometown of San Luis, Batangas.6 The trial court found petitioner guilty beyond reasonable doubt of the crime of qualified rape, and sentenced him to death, to indemnify the victim in the amount of P50,000.00, to pay the costs of the suit and to support the child, Leahlyn Mendoza.7 On automatic review,8 we found that the date of birth of Aileen's child was medically consistent with the time of the rape. Since it was never alleged that Aileen gave birth to a full-term ninemonth old baby, we gave credence to the prosecution's contention that she prematurely gave birth to an eight-month old baby by normal delivery.9 Thus, we affirmed petitioner's conviction for rape, in a Decision the dispositive portion of which reads: WHEREFORE, the judgment of the Regional Trial Court, finding accused-appellant guilty beyond reasonable doubt of the crime of rape, is AFFIRMED with the MODIFICATIONS that he is sentenced to suffer the penalty of reclusin perpetua and ordered to pay the offended party P50,000.00 as civil indemnity; P50,000.00 as moral damages; costs of the suit and to provide support for the child Leahlyn Corales Mendoza. SO ORDERED.10 Three years after the promulgation of our Decision, we are once more faced with the question of Reynaldo de Villa's guilt or innocence. Petitioner-relator in this case, June de Villa, is the son of Reynaldo. He alleges that during the trial of the case, he was unaware that there was a scientific test that could determine once and for all if Reynaldo was the father of the victim's child, Leahlyn. Petitioner-relator was only

informed during the pendency of the automatic review of petitioner's case that DNA testing could resolve the issue of paternity.11 This information was apparently furnished by the Free Legal Assistance Group (FLAG) Anti-Death Penalty Task Force, which took over as counsel for petitioner. Thus, petitioner's brief in People v. de Villa sought the conduct of a blood type test and DNA test in order to determine the paternity of the child allegedly conceived as a result of the rape.12 This relief was implicitly denied in our Decision of February 21, 2001. On March 16, 2001, Reynaldo de Villa filed a Motion for Partial Reconsideration of the Decision, wherein he once more prayed that DNA tests be conducted.13 The Motion was denied with finality in a Resolution dated November 20, 2001.14 Hence, the Decision became final and executory on January 16, 2002.15 Petitioner-relator was undaunted by these challenges. Having been informed that DNA tests required a sample that could be extracted from saliva, petitioner-relator asked Billy Joe de Villa, a grandson of Reynaldo de Villa and a classmate of Leahlyn Mendoza, to ask Leahlyn to spit into a new, sterile cup.16 Leahlyn readily agreed and did so. Billy Joe took the sample home and gave it to the petitioner-relator, who immediately labeled the cup as "Container A." Petitioner-relator then gathered samples from four grandchildren of Reynaldo de Villa. These samples were placed in separate containers with distinguishing labels and temporarily stored in a refrigerator prior to transport to the DNA Analysis Laboratory at the National Science Research Institute (NSRI).17 During transport, the containers containing the saliva samples were kept on ice. Petitioner-relator requested the NSRI to conduct DNA testing on the sample given by Leahlyn Mendoza, those given by the grandchildren of Reynaldo de Villa, and that given by Reynaldo de Villa himself. The identities of the donors of the samples, save for the sample given by Reynaldo de Villa, were not made known to the DNA Analysis Laboratory.18 After testing, the DNA Laboratory rendered a preliminary report on March 21, 2003, which showed that Reynaldo de Villa could not have sired any of the children whose samples were tested, due to the absence of a match between the pertinent genetic markers in petitioner's sample and those of any of the other samples, including Leahlyn's.19 Hence, in the instant petition for habeas corpus, petitioner argues as follows: DNA ANALYSIS ON PATERNITY SHOWS CONCLUSIVELY THAT PETITIONER DE VILLA IS NOT THE FATHER OF LEAHLYN MENDOZA; HIS CONVICTION FOR RAPE, BASED ON THE FACT THAT LEAHLYN WAS SIRED AS A RESULT OF THE ALLEGED RAPE, CANNOT STAND AND MUST BE SET ASIDE.20 x x x x x x x x x A NEW TRIAL TO CONSIDER NEWLY DISCOVERED EVIDENCE IS PROPER AND MAY BE ORDERED BY THIS COURT IN VIEW OF THE RESULTS OF THE DNA TESTS CONDUCTED.21 Considering that the issues are inter-twined, they shall be discussed together. In brief, petitioner relies upon the DNA evidence gathered subsequent to the trial in order to relitigate the factual issue of the paternity of the child Leahlyn Mendoza. Petitioner alleges that this issue is crucial, considering that his conviction in 2001 was based on the factual finding that he sired the said child. Since this paternity is now conclusively disproved, he argues that the 2001 conviction must be overturned. In essence, petitioner invokes the remedy of the writ of habeas corpus to collaterally attack the 2001 Decision. The ancillary remedy of a motion for new trial is resorted to solely to allow the presentation of what is alleged to be newly-discovered evidence. This Court is thus tasked to determine, first, the propriety of the issuance of a writ of habeas corpus to release an individual already convicted and serving sentence by virtue of a final and executory judgment; and second, the propriety of granting a new trial under the same factual scenario. The extraordinary writ of habeas corpus has long been a haven of relief for those seeking liberty from any unwarranted denial of freedom of movement. Very broadly, the writ applies "to all

cases of illegal confinement or detention by which a person has been deprived of his liberty, or by which the rightful custody of any person has been withheld from the person entitled thereto".22 Issuance of the writ necessitates that a person be illegally deprived of his liberty. In the celebrated case of Villavicencio v. Lukban,23 we stated that "[a]ny restraint which will preclude freedom of action is sufficient."24 The most basic criterion for the issuance of the writ, therefore, is that the individual seeking such relief be illegally deprived of his freedom of movement or placed under some form of illegal restraint. If an individual's liberty is restrained via some legal process, the writ of habeas corpus is unavailing. Concomitant to this principle, the writ of habeas corpus cannot be used to directly assail a judgment rendered by a competent court or tribunal which, having duly acquired jurisdiction, was not deprived or ousted of this jurisdiction through some anomaly in the conduct of the proceedings. Thus, notwithstanding its historic function as the great writ of liberty, the writ of habeas corpus has very limited availability as a post-conviction remedy. In the recent case of Feria v. Court of Appeals,25 we ruled that review of a judgment of conviction is allowed in a petition for the issuance of the writ of habeas corpus only in very specific instances, such as when, as a consequence of a judicial proceeding, (a) there has been a deprivation of a constitutional right resulting in the restraint of a person; (b) the court had no jurisdiction to impose the sentence; or (c) an excessive penalty has been imposed, as such sentence is void as to such excess.26 In this instance, petitioner invokes the writ of habeas corpus to assail a final judgment of conviction, without, however, providing a legal ground on which to anchor his petition. In fine, petitioner alleges neither the deprivation of a constitutional right, the absence of jurisdiction of the court imposing the sentence, or that an excessive penalty has been imposed upon him. In fine, petitioner invokes the remedy of habeas corpus in order to seek the review of findings of fact long passed upon with finality. This relief is far outside the scope of habeas corpus proceedings. In the early case of Abriol v. Homeres,27 for example, this Court stated the general rule that the writ of habeas corpus is not a writ of error, and should not be thus used. The writ of habeas corpus, whereas permitting a collateral challenge of the jurisdiction of the court or tribunal issuing the process or judgment by which an individual is deprived of his liberty, cannot be distorted by extending the inquiry to mere errors of trial courts acting squarely within their jurisdiction.28 The reason for this is explained very simply in the case of Velasco v. Court of Appeals:29 a habeas corpus petition reaches the body, but not the record of the case. 30 A record must be allowed to remain extant, and cannot be revised, modified, altered or amended by the simple expedient of resort to habeas corpus proceedings. Clearly, mere errors of fact or law, which did not have the effect of depriving the trial court of its jurisdiction over the case and the person of the defendant, are not correctible in a petition for the issuance of the writ of habeas corpus; if at all, these errors must be corrected on certiorari or on appeal, in the form and manner prescribed by law.31 In the past, this Court has disallowed the review of a court's appreciation of the evidence in a petition for the issuance of a writ of habeas corpus, as this is not the function of said writ.32 A survey of our decisions in habeas corpus cases demonstrates that, in general, the writ of habeas corpus is a high prerogative writ which furnishes an extraordinary remedy; it may thus be invoked only under extraordinary circumstances.33 We have been categorical in our pronouncements that the writ of habeas corpus is not to be used as a substitute for another, more proper remedy. Resort to the writ of habeas corpus is available only in the limited instances when a judgment is rendered by a court or tribunal devoid of jurisdiction. If, for instance, it can be demonstrated that there was a deprivation of a constitutional right, the writ can be granted even after an individual has been meted a sentence by final judgment. Thus, in the case of Chavez v. Court of Appeals,34 the writ of habeas corpus was held to be available where an accused was deprived of the constitutional right against self-incrimination. A defect so pronounced as the denial of an accused's constitutional rights results in the absence

or loss of jurisdiction, and therefore invalidates the trial and the consequent conviction of the accused. That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpus.35 Later, in Gumabon v. Director of the Bureau of Prisons,36 this Court ruled that, once a deprivation of a constitutional right is shown to exist, the court that rendered the judgment is deemed ousted of jurisdiction and habeas corpus is the appropriate remedy to assail the legality of the detention.37 Although in Feria v. Court of Appeals38 this Court was inclined to allow the presentation of new evidence in a petition for the issuance of a writ of habeas corpus, this was an exceptional situation. In that case, we laid down the general rule, which states that the burden of proving illegal restraint by the respondent rests on the petitioner who attacks such restraint. Where the return is not subject to exception, that is, where it sets forth a process which, on its face, shows good ground for the detention of the prisoner, it is incumbent on petitioner to allege and prove new matter that tends to invalidate the apparent effect of such process.39 In the recent case of Calvan v. Court of Appeals,40 we summarized the scope of review allowable in a petition for the issuance of the writ of habeas corpus. We ruled that the writ of habeas corpus, although not designed to interrupt the orderly administration of justice, can be invoked by the attendance of a special circumstance that requires immediate action. In such situations, the inquiry on a writ of habeas corpus would be addressed, not to errors committed by a court within its jurisdiction, but to the question of whether the proceeding or judgment under which a person has been restrained is a complete nullity. The probe may thus proceed to check on the power and authority, itself an equivalent test of jurisdiction, of the court or the judge to render the order that so serves as the basis of imprisonment or detention.41 It is the nullity of an assailed judgment of conviction which makes it susceptible to collateral attack through the filing of a petition for the issuance of the writ of habeas corpus. Upon a perusal of the records not merely of this case but of People v. de Villa, we find that the remedy of the writ of habeas corpus is unavailing. First, the denial of a constitutional right has not been alleged by petitioner. As such, this Court is hard-pressed to find legal basis on which to anchor the grant of a writ of habeas corpus. Much as this Court sympathizes with petitioner's plea, a careful scrutiny of the records does not reveal any constitutional right of which the petitioner was unduly deprived. We are aware that other jurisdictions have seen fit to grant the writ of habeas corpus in order to test claims that a defendant was denied effective aid of counsel.42 In this instance, we note that the record is replete with errors committed by counsel, and it can be alleged that the petitioner was, at trial, denied the effective aid of counsel. The United States Supreme Court requires a defendant alleging incompetent counsel to show that the attorney's performance was deficient under a reasonable standard, and additionally to show that the outcome of the trial would have been different with competent counsel.43 The purpose of the right to effective assistance of counsel is to ensure that the defendant receives a fair trial.44 The U.S. Supreme Court asserts that in judging any claim of ineffective assistance of counsel, one must examine whether counsel's conduct undermined the proper functioning of the adversarial process to such an extent that the trial did not produce a fair and just result.45 The proper measure of attorney performance is "reasonable" under the prevailing professional norms, and the defendant must show that the representation received fell below the objective standard of reasonableness.46 For the petition to succeed, the strong presumption that the counsel's conduct falls within the wide range or reasonable professional assistance must be overcome.47 In the case at bar, it appears that in the middle of the appeal, the petitioner's counsel of record, a certain Atty. Alfonso G. Salvador, suddenly and inexplicably withdrew his appearance as counsel, giving the sole explanation that he was "leaving for the United States for an indefinite period of time by virtue of a petition filed in his favor."48In the face of this abandonment, petitioner made an impassioned plea that his lawyer be prevented from this withdrawal in a

handwritten "Urgent Motion for Reconsideration and Opposition of Counsel's Withdrawal of Appearance with Leave of Court" received by this Court on September 14, 1999.49 Petitioner alleged that his counsel's withdrawal is an "untimely and heartbreaking event", considering that he had placed "all [his] trust and confidence on [his counsel's] unquestionable integrity and dignity."50 While we are sympathetic to petitioner's plight, we do not, however, find that there was such negligence committed by his earlier counsel so as to amount to a denial of a constitutional right. There is likewise no showing that the proceedings were tainted with any other jurisdictional defect. In fine, we find that petitioner invokes the remedy of the petition for a writ of habeas corpus to seek a re-examination of the records of People v. de Villa, without asserting any legal grounds therefor. For all intents and purposes, petitioner seeks a reevaluation of the evidentiary basis for his conviction. We are being asked to reexamine the weight and sufficiency of the evidence in this case, not on its own, but in light of the new DNA evidence that the petitioner seeks to present to this Court. This relief is outside the scope of a habeas corpus petition. The petition for habeas corpus must, therefore, fail. Coupled with the prayer for the issuance of a writ of habeas corpus, petitioner seeks a new trial to re-litigate the issue of the paternity of the child Leahlyn Mendoza. It must be stressed that the issue of Leahlyn Mendoza's paternity is not central to the issue of petitioner's guilt or innocence. The rape of the victim Aileen Mendoza is an entirely different question, separate and distinct from the question of the father of her child. Recently, in the case of People v. Alberio,51 we ruled that the fact or not of the victim's pregnancy and resultant childbirth are irrelevant in determining whether or not she was raped. Pregnancy is not an essential element of the crime of rape. Whether the child which the victim bore was fathered by the purported rapist, or by some unknown individual, is of no moment in determining an individual's guilt. In the instant case, however, we note that the grant of child support to Leahlyn Mendoza indicates that our Decision was based, at least in small measure, on the victim's claim that the petitioner fathered her child. This claim was given credence by the trial court, and, as a finding of fact, was affirmed by this Court on automatic review. The fact of the child's paternity is now in issue, centrally relevant to the civil award of child support. It is only tangentially related to the issue of petitioner's guilt. However, if it can be conclusively determined that the petitioner did not sire Leahlyn Mendoza, this may cast the shadow of reasonable doubt, and allow the acquittal of the petitioner on this basis. Be that as it may, it appears that the petitioner once more relies upon erroneous legal grounds in resorting to the remedy of a motion for new trial. A motion for new trial, under the Revised Rules of Criminal Procedure, is available only for a limited period of time, and for very limited grounds. Under Section 1, Rule 121, of the Revised Rules of Criminal Procedure, a motion for new trial may be filed at any time before a judgment of conviction becomes final, that is, within fifteen (15) days from its promulgation or notice. Upon finality of the judgment, therefore, a motion for new trial is no longer an available remedy. Section 2 of Rule 121 enumerates the grounds for a new trial: SEC. 2. Grounds for a new trial.The court shall grant a new trial on any of the following grounds: (a) That errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial; (b) That new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment. In the case at bar, petitioner anchors his plea on the basis of purportedly "newly-discovered evidence", i.e., the DNA test subsequently conducted, allegedly excluding petitioner from the child purportedly fathered as a result of the rape. The decision sought to be reviewed in this petition for the issuance of a writ of habeas corpus has long attained finality, and entry of judgment was made as far back as January 16, 2002. Moreover, upon an examination of the evidence presented by the petitioner, we do not find that the DNA evidence falls within the statutory or jurisprudential definition of "newlydiscovered evidence".

A motion for new trial based on newly-discovered evidence may be granted only if the following requisites are met: (a) that the evidence was discovered after trial; (b) that said evidence could not have been discovered and produced at the trial even with the exercise of reasonable diligence; (c) that it is material, not merely cumulative, corroborative or impeaching; and (d) that the evidence is of such weight that that, if admitted, it would probably change the judgment.52 It is essential that the offering party exercised reasonable diligence in seeking to locate the evidence before or during trial but nonetheless failed to secure it.53 In this instance, although the DNA evidence was undoubtedly discovered after the trial, we nonetheless find that it does not meet the criteria for "newly-discovered evidence" that would merit a new trial. Such evidence disproving paternity could have been discovered and produced at trial with the exercise of reasonable diligence. Petitioner-relator's claim that he was "unaware" of the existence of DNA testing until the trial was concluded carries no weight with this Court. Lack of knowledge of the existence of DNA testing speaks of negligence, either on the part of petitioner, or on the part of petitioner's counsel. In either instance, however, this negligence is binding upon petitioner. It is a settled rule that a party cannot blame his counsel for negligence when he himself was guilty of neglect.54 A client is bound by the acts of his counsel, including the latter's mistakes and negligence.55 It is likewise settled that relief will not be granted to a party who seeks to be relieved from the effects of the judgment when the loss of the remedy at law was due to his own negligence, or to a mistaken mode of procedure.56 Even with all of the compelling and persuasive scientific evidence presented by petitioner and his counsel, we are not convinced that Reynaldo de Villa is entitled to outright acquittal. As correctly pointed out by the Solicitor General, even if it is conclusively proven that Reynaldo de Villa is not the father of Leahlyn Mendoza, his conviction could, in theory, still stand, with Aileen Mendoza's testimony and positive identification as its bases.57The Solicitor General reiterates, and correctly so, that the pregnancy of the victim has never been an element of the crime of rape.58 Therefore, the DNA evidence has failed to conclusively prove to this Court that Reynaldo de Villa should be discharged. Although petitioner claims that conviction was based solely on a finding of paternity of the child Leahlyn, this is not the case. Our conviction was based on the clear and convincing testimonial evidence of the victim, which, given credence by the trial court, was affirmed on appeal. WHEREFORE, in view of the foregoing, the instant petition for habeas corpus and new trial is DISMISSED for lack of merit. No costs. SO ORDERED. G.R. No. 156343 October 18, 2004 JOEY D. BRIONES, petitioner, vs. MARICEL P. MIGUEL, FRANCISCA P. MIGUEL and LORETA P. MIGUEL, respondents. D E C I S I O N PANGANIBAN, J.: An illegitimate child is under the sole parental authority of the mother. In the exercise of that authority, she is entitled to keep the child in her company. The Court will not deprive her of custody, absent any imperative cause showing her unfitness to exercise such authority and care. The Case The Petition for Review1 before the Court seeks to reverse and set aside the August 28, 2002 Decision2 and the December 11, 2002 Resolution3 of the Court of Appeals in CA-GR SP No. 69400.4 The dispositive portion of the assailed Decision reads as follows: "WHEREFORE, the petition is hereby DISMISSED. Respondent Loreta P. Miguel shall have custody over the child Michael Kevin Pineda until he reaches ten (10) years of age. Once the said child is beyond ten (10) years of age, the Court allows him to choose which parent he prefers to live with pursuant to Section 6, Rule 99 of the 1997 Rules of Civil Procedure, as amended. The petitioner, Joey D. Briones, shall help support the child, shall have visitorial rights at least once a week, and may take the child out upon the written consent of the mother. "Acting on the petitioners Urgent Motion for a Hold Departure Order, and finding it to be without merit, the same is DENIED."5 The challenged Resolution denied reconsideration. The Facts The CA summarized the antecedents of the case in this wise: "On March 5, 2002, petitioner Joey D.

Briones filed a Petition for Habeas Corpus against respondents Maricel Pineda Miguel and Francisca Pineda Miguel, to obtain custody of his minor child Michael Kevin Pineda. "On April 25, 2002, the petitioner filed an Amended Petition to include Loreta P. Miguel, the mother of the minor, as one of the respondents. "A Writ of Habeas Corpus was issued by this Court on March 11, 2002 ordering the respondents to produce before this Court the living body of the minor Michael Kevin Pineda on March 21, 2002 at 2:00 oclock in the afternoon. "The petitioner alleges that the minor Michael Kevin Pineda is his illegitimate son with respondent Loreta P. Miguel. He was born in Japan on September 17, 1996 as evidenced by his Birth Certificate. The respondent Loreta P. Miguel is now married to a Japanese national and is presently residing in Japan. "The petitioner further alleges that on November 4, 1998 he caused the minor child to be brought to the Philippines so that he could take care of him and send him to school. In the school year 2000-2001, the petitioner enrolled him at the nursery school of Blessed Angels L.A. School, Inc. in Caloocan City, where he finished the nursery course. "According to the petitioner, his parents, who are both retired and receiving monthly pensions, assisted him in taking care of the child. "On May 2, 2001, respondents Maricel P. Miguel and Francisca P. Miguel came to the house of the petitioner in Caloocan City on the pretext that they were visiting the minor child and requested that they be allowed to bring the said child for recreation at the SM Department store. They promised him that they will bring him back in the afternoon, to which the petitioner agreed. However, the respondents did not bring him back as promised by them. "The petitioner went several times to respondent Maricel P. Miguel at Tanza, Tuguegarao City but he was informed that the child is with the latters mother at Batal Heights, Santiago City. When he went there, respondent Francisca P. Miguel told him that Michael Kevin Pineda is with her daughter at Tuguegarao City. "He sought the assistance of the police and the Department of Social Welfare to locate his son and to bring him back to him, but all his efforts were futile. "Hence, he was constrained to file a Petition for Habeas Corpus with the Regional Trial Court of Caloocan City which was docketed as SPC No. 2711. However, the said case was withdrawn ex-parte. "The petitioner prays that the custody of his son Michael Kevin Pineda be given to him as his biological father and [as] he has demonstrated his capability to support and educate him. "On May 6, 2002, the respondents filed their Comment, in compliance with the May 2, 2002 Resolution of this Court. "In their Comment, the respondent Loreta P. Miguel denies the allegation of the petitioner that he was the one who brought their child to the Philippines and stated that she was the one who brought him here pursuant to their agreement. "Respondent Loreta P. Miguel likewise denies petitioners allegation that respondents Maricel P. Miguel and Francisca P. Miguel were the ones who took the child from the petitioner or the latters parents. She averred that she was the one who took Michael Kevin Pineda from the petitioner when she returned to the Philippines and that the latter readily agreed and consented. "Respondent Loreta P. Miguel alleges that sometime in October 2001, the petitioner was deported from Japan under the assumed name of Renato Juanzon when he was found to have violated or committed an infraction of the laws of Japan. She further stated that since the time the petitioner arrived in the Philippines, he has not been gainfully employed. The custody of the child, according to respondent Loreta P. Miguel was entrusted to petitioners parents while they were both working in Japan. She added that even before the custody of the child was given to the petitioners parents, she has already been living separately from the petitioner in Japan because the latter was allegedly maintaining an illicit affair with another woman until his deportation. "She likewise stated in her Comment that her marriage to a Japanese national is for the purpose of availing of the privileges of staying temporarily in Japan to pursue her work so she could be able to send money regularly to her son in the Philippines. She further stated that she has no intention of staying permanently in Japan as she has been returning to the Philippines every six (6) months or as often as she could. "Respondent Loreta P. Miguel prays that the custody of her

minor child be given to her and invokes Article 213, Paragraph 2 of the Family Code and Article 363 of the Civil Code of the Philippines." Ruling of the Court of Appeals Applying Article 213 (paragraph 2) of the Family Code, the CA awarded the custody of Michael Kevin Pineda Miguel to his mother, Respondent Loreta P. Miguel. While acknowledging that petitioner truly loved and cared for his son and considering the trouble and expense he had spent in instituting the legal action for custody, it nevertheless found no compelling reason to separate the minor from his mother. Petitioner, however, was granted visitorial rights. Hence, this Petition.6 Issue In his Memorandum, petitioner formulated the "ultimate" issue as follows: "x x x [w]hether or not [he], as the natural father, may be denied the custody and parental care of his own child in the absence of the mother who is away."7 The Courts Ruling The Petition has no merit. However, the assailed Decision should be modified in regard to its erroneous application of Section 6 of Rule 99 of the Rules of Court. Sole Issue Who Should Have Custody of the Child? Petitioner concedes that Respondent Loreta has preferential right over their minor child. He insists, however, that custody should be awarded to him whenever she leaves for Japan and during the period that she stays there. In other words, he wants joint custody over the minor, such that the mother would have custody when she is in the country. But when she is abroad, he -- as the biological father -- should have custody. According to petitioner, Loreta is not always in the country. When she is abroad, she cannot take care of their child. The undeniable fact, he adds, is that she lives most of the time in Japan, as evidenced by her Special Power of Attorney dated May 28, 2001,8 granting to her sister temporary custody over the minor. At present, however, the child is already with his mother in Japan, where he is studying,9 thus rendering petitioners argument moot. While the Petition for Habeas Corpus was pending before the CA, petitioner filed on July 30, 2002, an "Urgent Motion for a Hold Departure Order,"10 alleging therein that respondents were preparing the travel papers of the minor so the child could join his mother and her Japanese husband. The CA denied the Motion for lack of merit.11 Having been born outside a valid marriage, the minor is deemed an illegitimate child of petitioner and Respondent Loreta. Article 176 of the Family Code of the Philippines12 explicitly provides that "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." This is the rule regardless of whether the father admits paternity.13 Previously, under the provisions of the Civil Code, illegitimate children were generally classified into two groups: (1) natural, whether actual or by legal fiction; and (2) spurious, whether incestuous, adulterous or illicit.14 A natural child is one born outside a lawful wedlock of parents who, at the time of conception of the child, were not disqualified by any impediment to marry each other.15 On the other hand, a spurious child is one born of parents who, at the time of conception, were disqualified to marry each other on account of certain legal impediments.16 Parental authority over recognized natural children who were under the age of majority was vested in the father or the mother recognizing them.17 If both acknowledge the child, authority was to be exercised by the one to whom it was awarded by the courts; if it was awarded to both, the rule as to legitimate children applied. In other words, in the latter case, parental authority resided jointly in the father and the mother.18 The fine distinctions among the various types of illegitimate children have been eliminated in the Family Code.19Now, there are only two classes of children -- legitimate (and those who, like the legally adopted, have the rights of legitimate children) and illegitimate. All children conceived and born outside a valid marriage are illegitimate, unless the law itself gives them legitimate status.20 Article 54 of the Code provides these exceptions: "Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate." Under Article 176 of the Family Code, all illegitimate children are generally placed under one category, without any distinction between natural and spurious.21 The concept of "natural child" is important only for purposes of

legitimation.22 Without the subsequent marriage, a natural child remains an illegitimate child. Obviously, Michael is a natural ("illegitimate," under the Family Code) child, as there is nothing in the records showing that his parents were suffering from a legal impediment to marry at the time of his birth. Both acknowledge that Michael is their son. As earlier explained and pursuant to Article 176, parental authority over him resides in his mother, Respondent Loreta, notwithstanding his fathers recognition of him. David v. Court of Appeals23 held that the recognition of an illegitimate child by the father could be a ground for ordering the latter to give support to, but not custody of, the child. The law explicitly confers to the mother sole parental authority over an illegitimate child; it follows that only if she defaults can the father assume custody and authority over the minor. Of course, the putative father may adopt his own illegitimate child;24 in such a case, the child shall be considered a legitimate child of the adoptive parent.25 There is thus no question that Respondent Loreta, being the mother of and having sole parental authority over the minor, is entitled to have custody of him.26 She has the right to keep him in her company.27 She cannot be deprived of that right,28 and she may not even renounce or transfer it "except in the cases authorized by law."29 Not to be ignored in Article 213 of the Family Code is the caveat that, generally, no child under seven years of age shall be separated from the mother, except when the court finds cause to order otherwise. Only the most compelling of reasons, such as the mothers unfitness to exercise sole parental authority, shall justify her deprivation of parental authority and the award of custody to someone else.30 In the past, the following grounds have been considered ample justification to deprive a mother of custody and parental authority: neglect or abandonment,31 unemployment, immorality,32 habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable disease. Bearing in mind the welfare and the best interest of the minor as the controlling factor,33 we hold that the CA did not err in awarding care, custody, and control of the child to Respondent Loreta. There is no showing at all that she is unfit to take charge of him. We likewise affirm the visitorial right granted by the CA to petitioner. In Silva v. Court of Appeals,34 the Court sustained the visitorial right of an illegitimate father over his children in view of the constitutionally protected inherent and natural right of parents over their children.35 Even when the parents are estranged and their affection for each other is lost, their attachment to and feeling for their offspring remain unchanged. Neither the law nor the courts allow this affinity to suffer, absent any real, grave or imminent threat to the well-being of the child. However, the CA erroneously applied Section 6 of Rule 99 of the Rules of Court. This provision contemplates a situation in which the parents of the minor are married to each other, but are separated either by virtue of a decree of legal separation or because they are living separately de facto. In the present case, it has been established that petitioner and Respondent Loreta were never married. Hence, that portion of the CA Decision allowing the child to choose which parent to live with is deleted, but without disregarding the obligation of petitioner to support the child. WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED with the MODIFICATION that the disposition allowing the child, upon reaching ten (10) years of age, to choose which parent to live with is DELETEDfor lack of legal basis. Costs against petitioner. G.R. No. 164915 March 10, 2006 ERIC JONATHAN YU, Petitioner, vs. CAROLINE T. YU, Respondent. D E C I S I O N CARPIO MORALES, J.: On January 11, 2002, Eric Jonathan Yu (petitioner) filed a petition for habeas corpus before the Court of Appeals alleging that his estranged wife Caroline Tanchay-Yu (respondent) unlawfully withheld from him the custody of their minor child Bianca. The petition, which included a prayer for the award to him of the sole custody of Bianca, was docketed as CA-G.R. SP No. 68460. Subsequently or on March 3, 2002, respondent filed a petition against petitioner before the Pasig Regional Trial Court (RTC) for declaration of nullity of marriage and dissolution of the absolute community of property. The petition included a prayer for the award to her of the sole custody of Bianca and for the fixing of

schedule of petitioners visiting rights "subject only to the final and executory judgment of the Court of Appeals in CA-G.R. SP No. 68460." In the meantime, the appellate court, by Resolution of March 21, 2002, awarded petitioner full custody of Bianca during the pendency of the habeas corpus case, with full visitation rights of respondent. Petitioner and respondent later filed on April 5, 2002 before the appellate court a Joint Motion to Approve Interim Visitation Agreement which was, by Resolution of April 24, 2002, approved. On April 18, 2002, respondent filed before the appellate court a Motion for the Modification of her visiting rights under the Interim Visitation Agreement. To the Motion, petitioner filed an Opposition with Motion to Cite Respondent for Contempt of Court in light of her filing of the petition for declaration of nullity of marriage before the Pasig RTC which, so he contended, constituted forum shopping. By Resolution of July 5, 2002, the appellate court ordered respondent and her counsel to make the necessary amendment in her petition for declaration of nullity of marriage before the Pasig City RTC in so far as the custody aspect is concerned, under pain of contempt. In compliance with the appellate courts Resolution of July 5, 2002, respondent filed a Motion to Admit Amended Petition before the Pasig RTC. She, however, later filed in December 2002 a Motion to Dismiss her petition, without prejudice, on the ground that since she started residing and conducting business at her new address at Pasay City, constraints on resources and her very busy schedule rendered her unable to devote the necessary time and attention to the petition. The Pasig RTC granted respondents motion and accordingly dismissed the petition without prejudice, by Order of March 28, 2003. On June 12, 2003, petitioner filed his own petition for declaration of nullity of marriage and dissolution of the absolute community of property before the Pasig RTC, docketed as JDRC Case No. 6190, with prayer for the award to him of the sole custody of Bianca, subject to the final resolution by the appellate court of his petition for habeas corpus. The appellate court eventually dismissed the habeas corpus petition, by Resolution of July 3, 2003, for having become moot and academic, "the restraint on the liberty of the person alleged to be in restraint [having been] lifted." In the meantime, respondent filed on July 24, 2003 before the Pasay RTC a petition for habeas corpus, which she denominated as "Amended Petition," praying for, among other things, the award of the sole custody to her of Bianca or, in the alternative, pending the hearing of the petition, the issuance of an order "replicating and reiterating the enforceability of the Interim Visiting Agreement" which was approved by the appellate court. The petition was docketed as SP Proc. No. 03-0048. Not to be outdone, petitioner filed on July 25, 2003 before the Pasig RTC in his petition for declaration of nullity of marriage an urgent motion praying for the custody of Bianca for the duration of the case. Acting on respondents petition, Branch 113 of the Pasay RTC issued a Writ of Habeas Corpus, a Hold Departure Order and Summons addressed to petitioner, drawing petitioner to file a motion to dismiss the petition on the ground of lack of jurisdiction, failure to state a cause of action, forum shopping and litis pendentia, he citing the pending petition for declaration of nullity of marriage which he filed before the Pasig RTC. The Pasay RTC, in the meantime, issued an Order of August 12, 2003 declaring that pending the disposition of respondents petition, Bianca should stay with petitioner from Sunday afternoon to Saturday morning and "with the company of her mother from Saturday 1:00 in the afternoon up to Sunday 1:00 in the afternoon." To this Order, petitioner filed a Motion for Reconsideration, arguing that the Pasay RTC did not have jurisdiction to issue the same. He likewise filed a Manifestation of August 14, 2003 stating that he was constrained to submit to the said courts order but with the reservation that he was not submitting the issue of custody and himself to its jurisdiction. Respondent soon filed her Answer with Counter-Petition on the nullity case before the Pasig RTC wherein she also prayed for the award of the sole custody to her of Bianca, subject to the final disposition of the habeas corpus petition which she filed before the Pasay RTC. By Omnibus Order of October 30, 2003, the Pasig RTC asserted its jurisdiction over the custody aspect of the petition filed by petitioner and directed the parties to comply with the

provisions of the Interim Visitation Agreement, unless they agreed to a new bilateral agreement bearing the approval of the court; and granted custody of Bianca to petitioner for the duration of the case. The Pasay RTC in the meantime denied, by Order of November 27, 2003, petitioners motion to dismiss. The court, citing Sombong v. Court of Appeals,1 held that in custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of a writ of habeas corpus as a remedy; rather, a writ of habeas corpus is prosecuted for the purpose of determining the right of custody over the child.2 And it further held that the filing before it of the habeas corpus case by respondent, who is a resident of Pasay, is well within the ambit of the provisions of A.M. No. 03-04-04-SC.3 On the issue of forum shopping, the Pasay RTC held that it is petitioner, not respondent, who committed forum shopping, he having filed (on June 12, 2003) the petition for declaration of nullity of marriage before the Pasig RTC while his petition for habeas corpus before the Court of Appeals was still pending.4 The Pasay RTC held that assuming arguendo that petitioners filing before the Pasig RTC of the declaration of nullity of marriage case did not constitute forum shopping, it (the Pasay RTC) acquired jurisdiction over the custody issue ahead of the Pasig RTC, petitioner not having amended his petition before the Pasig RTC as soon as the Court of Appeals dismissed his petition for habeas corpus5 (on July 3, 2003). Finally, the Pasay RTC held that there was no litis pendentia because two elements thereof are lacking, namely, 1) identity of the rights asserted and reliefs prayed for, the relief being founded on the same facts, and 2) identity with respect to the two preceding particulars in the two cases such that any judgment that may be rendered in the pending case, regardless of which party is successful, would amount to res judicata in the other case.6 Petitioner thereupon assailed the Pasay RTCs denial of his Motion to Dismiss via Petition for Certiorari, Prohibition and Mandamus before the appellate court wherein he raised the following issues: A. RESPONDENT JUDGE COMMITTED GRAVE ABUSE OF DISCRETION BY DENYING PETITIONERS MOTION TO DISMISS DESPITE THE EVIDENT LACK OF JURISDICTION OVER THE SUBJECT MATTER OF CUSTODY, LITIS PENDENTIA, AND DELIBERATE AND WILLFUL FORUM-SHOPPING ON THE PART OF RESPONDENT CAROLINE T. YU.7 B. RESPONDENT JUDGE ACTED WHIMSICALLY, CAPRICIOUSLY AND ARBITRARILY IN ISSUING THE AUGUST 12, 2003 ORDER GRANTING RESPONDENT CAROLINE T. YU OVERNIGHT VISITATION RIGHTSOVER THE MINOR CHILD BIANCA AND DENYING PETITIONERS URGENT MOTION FOR RECONSIDERATION OF THE SAID ORDER.8 (Underscoring supplied) By Decision of August 10, 2004,9 the appellate court denied petitioners petition, it holding that the assumption of jurisdiction by the Pasay RTC over the habeas corpus case does not constitute grave abuse of discretion; the filing by respondent before the Pasay RTC of a petition for habeas corpus could not be considered forum shopping in the strictest sense of the word as before she filed it after petitioners petition for habeas corpus filed before the appellate court was dismissed; and it was petitioner who committed forum shopping when he filed the declaration of nullity of marriage case while his habeas corpus petition was still pending before the appellate court. In fine, the appellate court held that since respondent filed the petition for declaration of nullity of marriage before the Pasig RTC during the pendency of the habeas corpus case he filed before the appellate court, whereas respondent filed the habeas corpus petition before the Pasay RTC on July 24, 2003 after the dismissal on July 3, 2003 by the appellate court of petitioners habeas corpus case, jurisdiction over the issue custody of Bianca did not attach to the Pasig RTC. As for the questioned order of the Pasay RTC which modified the Interim Visiting Agreement, the appellate court, noting that the proper remedy for the custody of Bianca was filed with the Pasay RTC, held that said court had the authority to issue

the same. Hence, the present petition filed by petitioner faulting the appellate court for I. . . . DECLARING THAT PETITIONER ERIC YU COMMITTED FORUM-SHOPPING IN FILLING THE PETITION FOR DECLARATION OF NULLITY OF MARRIAGE WITH PRAYER FOR CUSTODY BEFORE THE PASIG FAMILY COURT AND THAT THE LATTER COURT WAS BARRED FROM ACQUIRING JURISDICTION OVER THE CUSTODY ASPECT OF THE NULLITY CASE IN RECKLESS DISREGARD OF THE PRINCIPLE THAT THE FILING OF A PETITION FOR NULLITY OF MARRIAGE BEFORE THE FAMILY COURTS VESTS THE LATTER WITH EXCLUSIVE JURISDICTION TO DETERMINE THE NECESSARY ISSUE OF CUSTODY. II. . . . APPL[YING] THE LAW OF THE CASE DOCTRINE BY RULING THAT THE PASIG FAMILY COURT HAS NO JURISDICTION OVER THE CUSTODY ASPECT OF THE NULLITY CASE ON THE BASIS OF THE JULY 5, 2002 RESOLUTION OF THE COURT OF APPEALS IN CA GR SP NO. 68460 WHEN THE SAID RESOLUTION CLEARLY APPLIES ONLY TO THE NULLITY CASE FILED BY PRIVATE RESPONDENT ON MARCH 7, 2002 DOCKETED AS JDRC CASE NO. 5745 AND NOT TO HEREIN PETITIONERS JUNE 12, 2003 PETITION FOR NULLITY DOCKETED AS JDRC CASE NO. 6190. III. . . . DECLARING THAT THE PASIG FAMILY COURT MUST YIELD TO THE JURISDICTION OF THE PASAY COURT INSOFAR AS THE ISSUE OF CUSTODY IS CONCERNED IN GRAVE VIOLATION OF THE DOCTRINE OF JUDICIAL STABILITY AND NON-INTERFERENCE. IV. . . . RULING THAT PRIVATE RESPONDENT CAROLINE DID NOT COMMIT FORUM-SHOPING IN FILING THE HABEAS CORPUS CASE WITH PRAYER FOR CUSTODY BEFORE THE RESPONDENT PASAY COURT DESPITE THE FACT THAT AN EARLIER FILED PETITION FOR DECLARATION OF NULLITY OF MARRIAGE WITH PRAYER FOR CUSTODY IS STILL PENDING BEFORE THE PASIG FAMILY COURT WHEN THE FORMER CASE WAS INSTITUTED. V. . . . RULING THAT RESPONDENT CAROLINE YU DID NOT SUBMIT TO THE JURISDICTION OF THE PASIG FAMILY COURT BASED ON AN ERRONEOUS FACTUAL FINDING THAT SHE FILED ON AUGUST 25, 2003 AN OMNIBUS OPPOSITION IN PETITIONERS ACTION FOR NULLITY BEFORE THE PASIG COURT.10 (Underscoring supplied) The petition is impressed with merit. The main issue raised in the present petition is whether the question of custody over Bianca should be litigated before the Pasay RTC or before the Pasig RTC. Judgment on the issue of custody in the nullity of marriage case before the Pasig RTC, regardless of which party would prevail, would constitute res judicata on the habeas corpus case before the Pasay RTC since the former has jurisdiction over the parties and the subject matter. There is identity in the causes of action in Pasig and Pasay because there is identity in the facts and evidence essential to the resolution of the identical issue raised in both actions11 whether it would serve the best interest of Bianca to be in the custody of petitioner rather than respondent or vice versa. Since the ground invoked in the petition for declaration of nullity of marriage before the Pasig RTC is respondents alleged psychological incapacity to perform her essential marital obligations12 as provided in Article 36 of the Family Code, the evidence to support this cause of action necessarily involves evidence of respondents fitness to take custody of Bianca. Thus, the elements of litis pendentia, to wit: a) identity of parties, or at least such as representing the same interest in both actions; b) identity of rights asserted and reliefs prayed for, the relief being founded on the same facts; and c) the identity in the two cases should be such that the judgment that may be rendered in the pending case would, regardless of which party is successful, amount to res judicata in the other,13are present. Respondent argues in her Comment to the petition at bar that the Pasig RTC never acquired jurisdiction over the custody issue raised therein. "[T]he subsequent dismissal of the habeas corpus petition by the Court of Appeals on 3 July 2003 could not have the effect of conferring jurisdiction over the issue on the Pasig court. For

the Pasig court to acquire jurisdiction over the custody issue after the dismissal of the habeas corpus petition before the Court of Appeals, the rule is that petitioner must furnish the occasion for the acquisition of jurisdiction by repleading his cause of action for custody and invoking said cause anew."14 (Emphasis and underscoring supplied) And respondent cites Caluag v. Pecson,15 wherein this Court held: Jurisdiction of the subject matter of a particular case is something more than the general power conferred by law upon a court to take cognizance of cases of the general class to which the particular case belongs. It is not enough that a court has power in abstract to try and decide the class litigations [sic] to which a case belongs; it is necessary that said power be properly invoked, or called into activity, by the filing of a petition, or complaint or other appropriate pleading. (Underscoring supplied by Caroline.)16 Specific provisions of law govern the case at bar, however. Thus Articles 49 and 50 of the Family Code provide: Art. 49. During the pendency of the action [for annulment or declaration of nullity of marriage] and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. x x x It shall also provide for appropriate visitation rights of the other parent. (Emphasis and underscoring supplied)17 Art. 50. x x x x The final judgment in such cases [for the annulment or declaration of nullity of marriage] shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such other matters had been adjudicated in previous judicial proceedings." (Emphasis and underscoring added) By petitioners filing of the case for declaration of nullity of marriage before the Pasig RTC he automatically submitted the issue of the custody of Bianca as an incident thereof. After the appellate court subsequently dismissed the habeas corpus case, there was no need for petitioner to replead his prayer for custody for, as above-quoted provisions of the Family Code provide, the custody issue in a declaration of nullity case is deemed pleaded. That that is so gains light from Section 21 of the "Rule on Declaration Of Absolute Nullity Of Void Marriages and Annulment of Voidable Marriages"18 which provides: Sec. 21. Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive legitimes. Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody, support of common children and delivery of their presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in previous judicial proceedings. (Emphasis and underscoring supplied) Since this immediately-quoted provision directs the court taking jurisdiction over a petition for declaration of nullity of marriage to resolve the custody of common children, by mere motion of either party, it could only mean that the filing of a new action is not necessary for the court to consider the issue of custody of a minor.19 The only explicit exception to the earlier-quoted second paragraph of Art. 50 of the Family Code is when "such matters had been adjudicated in previous judicial proceedings," which is not the case here. The elements of litis pendentia having been established, the more appropriate action criterion guides this Court in deciding which of the two pending actions to abate.20 The petition filed by petitioner for the declaration of nullity of marriage before the Pasig RTC is the more appropriate action to determine the issue of who between the parties should have custody over Bianca in view of the express provision of the second paragraph of Article 50 of the Family Code. This must be so in line with the policy of avoiding multiplicity of suits.21 The appellate court thus erroneously applied the law of the case doctrine when it ruled that in its July 5, 2002 Resolution that the pendency of the habeas corpus petition in CA-G.R. SP No.

68460 prevented the Pasig RTC from acquiring jurisdiction over the custody aspect of petitioners petition for declaration of nullity. The factual circumstances of the case refelected above do not justify the application of the law of the case doctrine which has been defined as follows: Law of the case has been defined as the opinion delivered on a former appeal. It is a term applied to an established rule that when an appellate court passes on a question and remands the case to the lower court for further proceedings, the question there settled becomes the law of the case upon subsequent appeal. It means that whatever is once irrevocably established as the controlling legal rule or decision between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court." (Emphasis and underscoring supplied, italics in the original)22 WHEREFORE, the petition is GRANTED. The August 10, 2004 decision of the Court of Appeals is REVERSEDand SET ASIDE,and another is entered DISMISSING Pasay City Regional Trial Court Sp. Proc. No. 03-0048-CFM and ordering Branch 69 of Pasig City Regional Trial Court to continue, with dispatch, the proceedings in JDRC No. 6190. SO ORDERED. CONCHITA CARPIO MORALES Associate Justice WE CONCUR: G.R. No. 88202 December 14, 1998 REPUBLIC OF THE PHILIPPINES, petitioner, vs. COURT OF APPEALS and CYNTHIA VICENCIO, respondents. QUISUMBING, J.: This is an interposed by the Republic of the Philippines as represented by the Office of the Solicitor General (OSG), assailing the decision 1 of the Court of Appeals promulgated on April 28, 1989, which affirmed the decision2 of the Regional Trial Court of Manila, Branch 52, dated August 31, 1987. The appealed decision granted private respondent Cynthia Vicencio's petition for change of surname, from "Vicencio" to "Yu". As found by the trial court, hereunder are the facts and circumstances of the case: Petitioner's evidence is to the effect that she was born on 19 January 1971 at the Capitol Medical Center, Quezon City, to the spouses Pablo Castro Vicencio and Fe Esperanza de Vega Leabres (Exh. C, also marked Annex A of Petition); that on 10 January 1972, after a marital spat, Pablo Vicencio left their conjugal abode then situated at Meycauayan, Bulacan; that since then Pablo Vicencio never reappeared nor sent support to his family and it was Ernesto Yu who had come to the aid of Fe Esperanza Labres (sic) and her children; that on 29 June 1976, Fe Esperanza Leabres filed a petition in the then Juvenile and Domestic Relations Court of Manila for dissolution of their conjugal partnership, Civil Case No. E-02009, which was granted in a decision rendered by the Hon. Regina C. Ordoez Benitez on 11 July 1977 (Exhs. D, D-1 to D-3); that sometime in 1983, petitioner's mother filed another petition for change of name, Sp. Proc No. 83-16346, that is to drop the surname of her husband therefrom, and after hearing a decision was rendered on 5 July 1983 by the Hon. Emeterio C. Cui of Branch XXV of this Court approving the petition (Exh. E); that in 1984, petitioner's mother again filed another petition with this Court, Sp. Proc. No. 84-22605, for the declaration of Pablo Vicencio as an absentee, and which petition was granted on 26 April 1984 in a decision rendered by the Hon. Corona Ibay-Somera (Exh. F & F-1); that on 15 April 1986, petitioner's mother and Ernesto Yu were joined in matrimony in a ceremony solemnized by Mayor Benjamin S. Abalos of Mandaluyong, Metro Manila (Exh. G.). It was also established that even (sic) since her childhood, petitioner had not known mush less remembered her real father Pablo Vicencio, and her known father had been and still is Ernesto Yu; that despite of which she had been using the family name "Vicencio" in her school and other related activities therein; that in view of such situation, confusion arose as to her parentage and she had been subjected to inquiries why she is using Vicencio as her family name, both by her classmates and their neighbors, causing her extreme embarrassment; that on two (2) occassions when she ran as a beauty contestant in a Lions Club affair and in Manila Red Cross pageant, her name was entered as Cynthia L. Yu; that her step-father had been priorly consulted about this petition and had given his consent

thereto; that in fact Ernesto Yu testified for petitioner and confirmed his consent to the petition as he had always treated petitioner as his own daughter ever since. 3 At the hearing of the petition for change of name by the trial court, the OSG manifested that it was opposing the petition. It participated in the proceedings by cross-examining the private respondent Cynthia Vicencio, (petitionera quo) and her witnesses. Disregarding the OSG's contention, the trial court ruled that there is no valid cause for denying the petition. Further, the trial court stated that it could not compel private respondent's stepfather to adopt her, as adoption is a voluntary act; but failure to resort to adoption should not be a cause for disallowing private respondent to legally change her name. 4 Hence, it granted the change of surname of private respondent from Vicencio to Yu. The decision of the trial court was affirmed by the appellate court, which held that it is for the best interest of petitioner that her surname be changed. The appellate court took into account the testimonies of private respondent and her witnesses that allowing the change of surname would "give her an opportunity to improve her personality and welfare." 5 It likewise noted that the discrepancy between her original surname, taken from her biological father; and the surname of her stepfather, who has been socially recognized as her father, caused her embarrassment and inferiority complex. 6 The main issue before us is whether the appellate court erred in affirming the trial court's decision allowing the change of private respondent's surname to that of her stepfather's surname. In Republic vs. Hernandez 7, we have recognized inter alia, the following as sufficient grounds to warrant a change name: (a) when the name is ridiculous, dishonorable or extremely difficult to write or pronounce, (b) when the change is a legal consequence of legitimation or adoption; (c) when the change will avoid confusion; (d) when one has continuously used and been known since childhood by a Filipino name and was unaware of alien parentage; (e) when the change is based on a sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudice to anybody; and (f) when the surname causes embarrassment and there is no showing that the desired change of name was far a fraudulent purpose, or that the change of name would prejudice public interest. Private respondent asserts that her case falls under one of the justifiable grounds aforecited. She says that confusion has arisen as to her parentage because ever since childhood, Ernesto Yu has acted as her father, assuming duties of rearing, caring and supporting her. Since she is known in society as the daughter of Ernesto Yu, she claims that she been subjected to inquiries regarding her use of a different surname, causing her much humiliation and embarrassment. However, it is not denied that private respondent has used Vicencio as her surname in her school records and related documents. But she had used the surname of her step-father, Yu, when she participated in public functions, such as entering beauty contests, namely, with the Lion's Club and the Manila Red Cross, and when she celebrated her debut at the Manila Hotel. 8 The Solicitor General however argues that there is no proper and reasonable cause to warrant private respondent's change of surname. Such change might even cause confusion and give rise to legal complications due to the fact that private respondent's step-father has two (2) children with her mother. In the event of her step-father's death, it is possible that private respondent may even claim inheritance rights as a "legitimate" daughter. In his memorandum, the Solicitor General opines that "Ernesto Yu has no intention of making Cynthia as an heir because despite the suggestion made before the petition for change of name was heard by the trial court that the change of family name to Yu could very easily be achieved by adoption, he has not opted for such a remedy." 9 We find merit in the Solicitor General's contention. "The touchstone for the grant of a change of name is that there be "proper and reasonable cause" for which the change is sought." 10 The assailed decision as affirmed by the appellate court does not persuade us to depart from the applicability of the general rule on the use of surnames 11, specifically the law which requires that legitimate children shall principally use the surname of their father 12.

Private respondent Cynthia Vicencio is the legitimate offspring of Fe Leabres and Pablo Vicencio. As previously stated, a legitimate child generally bears the surname of his or her father. It must be stressed that a change of name is a privilege, not a matter of right, addressed to the sound discretion of the court, which has the duty to consider carefully the consequences of a change of name and to deny the same unless weighty reasons are shown. 13 Confusion indeed might arise with regard to private respondent's parentage because of her surname. But even, more confusion with grave legal consequences could arise if we allow private respondent to bear her step-father's surname, even if she is not legally adopted by him. While previous decisions have allowed children to bear the surname of their respective step-fathers even without the benefit of adoption, these instances should be distinguished from the present case. In Calderon vs. Republic, 14 and Llaneta vs. Agrava, 15 this Court allowed the concerned child to adopt the surname of the stepfather, but unlike the situation in the present case where private respondent is a legitimate child, in those cases the children were not of legitimate parentage. In Moore vs. Republic, 16 where the circumstances appears to be similar to the present case before us, the Court upheld the Republic's position: We find tenable this observation of government's counsel. Indeed, if a child born out of a lawful wedlock be allowed to bear the surname of the second husband of the mother, should the first husband die or be separated by a decree of divorce, there may result a confusion as to his real paternity. In the long run the change may redound to the prejudice of the child in the community. While the purpose which may have animated petitioner is plausible and may run along the feeling of cordiality and spiritual relationship that pervades among the members of the Moore family, our hand is deferred by a legal barrier which we cannot at present overlook or brush aside. 17 Similarly in Padilla vs. Republic, 18 the Court ruled that: To allow said minors to adopt the surname of their mother's second husband, who is not their father, could result in confusion in their paternity It could also create the suspicion that said minors, who were born during the coverture of their mother with her first husband, were in fact sired by Edward Padilla, thus bringing their legitimate status into discredit. 19 Private respondent might sincerely wish to be in a position similar to that of her step-father's legitimate children, a plausible reason the petition for change of name was filed in the first place. Moreover, it is laudable that Ernesto Yu has treated Cynthia as his very own daughter, providing for all her needs as a father would his own flesh and blood. However, legal constraints lead us to reject private respondent's desire to use her stepfather's surname. Further, there is no assurance the end result would not be even more detrimental to her person, for instead of bringing a stop to questions, the very change of name, if granted, could trigger much deeper inquiries regarding her parentage. Lastly, when this case was decided by the appellate court, private respondent was already 18 years old but still considered a minor because Republic Act 6809, 20 lowering the age of majority, was then in effect. However, regardless of private respondent's age, our conclusion remains considering the circumstances before us and the lack of any legally justifiable cause for allowing the change of her surname. WHEREFORE, the appealed decision is hereby REVERSED and SET ASIDE; and the instant petition is hereby GRANTED. SO ORDERED. G.R. No. L-31065 February 15, 1990 REPUBLIC OF THE PHILIPPINES, petitioner, vs. HON. PIO R. MARCOS, Judge of the Court of First Instance of Baguio and Benguet and PANG CHA QUEN representing the minor, MAY SIA alias MANMAN HUANG, respondents. Sinforoso Fangonil for private respondent. GRIO-AQUINO, J.: This is a petition for review of the order dated February 12, 1969 of respondent Judge Pio R. Marcos of the then Court of First Instance, now Regional Trial Court of Baguio and Benguet, granting the petition for change of name under Rule 103 of the Rules of Court and authorizing "the name of the minor child May Sia alias Manman Huang, also known as Mary Pang [to] be changed to Mary Pang De la Cruz" (p. 12, Rollo). On March 30, 1968, a verified petition was filed by private respondent Pang Cha Quen

alleging that she is a citizen of Nationalist China, married to Alfredo De la Cruz, a Filipino citizen; that she had resided in Baguio City since her birth on January 29, 1930; that by a previous marriage to Sia Bian alias Huang Tzeh Lik, a citizen of Nationalist China, she gave birth to a daughter, May Sia alias Manman Huang on January 28, 1958 in the City of Manila; that on January 12, 1959, she caused her daughter to be registered as an alien under the name of Mary Pang, i.e., using the maternal surname, because the child's father had abandoned them; that her daughter has always used the name Mary Pang at home and in the Baguio Chinese Patriotic School where she studies; that on August 16, 1966, petitioner Pang Cha Quen married Alfredo De la Cruz; that as her daughter has grown to love and recognize her stepfather, Alfredo De la Cruz, as her own father, she desires to adopt and use his surname "De la Cruz" in addition to her name "Mary Pang" so that her full name shall be Mary Pang De la Cruz; that Alfredo De la Cruz gave his conformity to the petition by signing at the bottom of the pleading; that the petition was not made for the purpose of concealing a crime as her ten-year old daughter has not committed any, nor to evade the execution of a judgment as she has never been sued in court, and the petition is not intended to cause damage or prejudice to any third person. She prayed that her daughter be allowed to change her name from May Sia, alias Manman Huang, to Mary Pang De la Cruz. On April 4, 1968, respondent Judge issued an order setting the hearing of the petition on September 16, 1968 at 9:00 o'clock in the morning and inviting all interested persons to appear and show cause, if any, why the petition should not be granted. The order also directed that it be published at the expense of the petitioner in the Baguio and Midland Courier, a newspaper of general circulation in Baguio City and Mountain Province, once a week for three (3) consecutive weeks, the first publication to be made as soon as possible. The order also commanded that the Solicitor General and the City Attorney of Baguio be furnished copies of the order and petition. On September 16, 1968, when the petition was called for hearing, nobody opposed it. Upon motion of petitioner's counsel, respondent Judge authorized the Clerk of Court or his deputy to receive the evidence of the petitioner, Pang Cha Quen. Finding the petition meritorious, respondent Judge issued an order on February 12, 1969 authorizing the name of the minor, May Sia alias Manman Huang, also known as Mary Pang, to be changed to Mary Pang De la Cruz. The Government, through the Solicitor General, appealed to the Supreme Court on the ground that the court's order is contrary to law. In its petition fr review, the Government raised two (2) issues namely: (1) whether or not respondent Judge had acquired jurisdiction over the case; and (2) whether respondent Judge erred in granting the petition although private respondent Pang Cha Quen failed to adduce proper and reasonable cause for changing the name of the minor "May Sia" alias Manman Huang." On the first issue, the Government pointed out that the captions of the petition and of the published order of the court did not include the name "Mary Pang" as one of the names that the minor has allegedly been using, hence, the petition and the published order contain a fatal jurisdictional defect. The Government's contention is well-taken. Thus did we rule in the case of Jesus Ng Yao Siong vs. Republic, 16 SCRA 483, 487-88: Petitioner himself admits that he is known by all these names. This gives rise to the necessity of including his aliases in the title of the petition not only in the body thereof. xxx xxx xxx We accordingly hold that for a publication of a petition for a change of name to be valid, the title thereof should include, first, his real name, and second, his aliases, if any In Republic vs. Zosa, G.R. No. 48762, September 12, 1988, this Court explained the reason for the rule requiring the inclusion of the name sought to be adopted and the other names or aliases of the applicant in the title of the petition, or in the caption of the published order. It is that the ordinary reader only glances fleetingly at the caption of the published order or the title of the petition in a special proceeding for a change of name. Only if the caption or the title strikes him because one or all of the names mentioned are familiar to him, does he proceed to read the contents of the order. The probability is great that he will not notice the other names or aliases of the applicant if they

are mentioned only in the body of the order or petition. In the case at bar, the caption of both the verified petition dated March 30,1968, and the published order of the trial court dated April 4, 1968 read, thus: IN RE: PETITION FOR CHANGE OF NAME OF THE MINOR MAY SIA ALIAS MANMAN HUANG TO MARY PANG DE LA CRUZ, PANG CHA QUEN, Petitioner. (P. 15, Rollo.) The omission of her other alias-- "Mary Pang"-- in the captions of the court's order and of the petition defeats the purpose of the publication. In view of that defect, the trial court did not acquire jurisdiction over the subject of the proceedings, i.e., the various names and aliases of the petitioner which she wished to change to "Mary Pang De la Cruz." In Go Chin Beng vs. Republic, L-29574, August 18, 1972, we held that all aliases of the applicant must be set forth in the title of the published petition, for the omission of any of such aliases, would be fatal to the petition even if such other aliases are mentioned in the body of the petition. The second ground for the Government's appeal is the failure of the petitioner below, Pang Cha Quen, to state a proper and reasonable cause for changing the name/names of her daughter. The following have been considered valid grounds for a change of name: (1) when the name is ridiculous, dishonorable, or extremely difficult to write or pronounce; (2) when the change results as a legal consequence, as in legitimation; (3) when the change will avoid confusion (Haw Liong vs. Republic, L-21194, April 29,1966; Chill Hap Chin vs. Republic, L-20018, April 30, 1966; Republic vs. Tanada, et al., L-31563, November 29, 1971; Alfon vs. Republic, I,51201, May 29, 1980); (4) having continuously used and been known since childhood by a Filipino name, unaware of his alien parentage (Josefina Ang Chay vs. Republic, L-28507, July 31, 1980); or (5) a sincere desire to adopt a Filipino name to erase signs of former alienage all in good faith and not to prejudice anybody (Uy vs. Republic, L-22712, November 29, 1965). As may be gleaned from the petition filed in the lower court, the reasons offered for changing the name of petitioner's daughter are: (1) that "her daughter grew up with, and learned to love and recognize Alfredo de la Cruz as her own father" (p. 23, Rollo); (2) to afford her daughter a feeling of security (pp. 23-24, Rollo); and (3) that "Alfredo de la Cruz agrees to this petition, and has signified his conformity at the foot of this pleading" (p. 24, Rollo). Clearly, these are not valid reasons for a change of name. The general rule is that a change of name should not be permitted if it will give a false impression of family relationship to another where none actually exists (Laperal vs. Republic, L-18008, October 30, 1962; Johnson vs. Republic, L18284, April 30, 1963; Moore vs. Republic, L-18407, June 26, 1963). In Padilla vs. Republic, 113 SCRA 789, we specifically held that our laws do not authorize legitimate children to adopt the surname of a person not their father, for to allow them to adopt the surname of their mother's husband, who is not their father, can result in confusion of their paternity. Another reason for disallowing the petition for change of name is that it was not filed by the proper party. Sections 1 and 2, Rule 103 of the Rules of Court, provide: SECTION 1. Venue. A person desiring to change his name shall present the petition to the Court of First Instance of the province in which he resides, or, in the City of Manila, to the Juvenile and Domestic Relations Court. SEC. 2. Contents of petition.- A petition for change of name shall be signed and verified by the person desiring his name changed, or some other person on his behalf, and shall set forth: (a) That the petitioner has been a bona fide resident of the province where the petition is filed for at least three (3) years prior to the date of such filing; (b) The cause for which the change of the petitioner's name is sought; (c) The name asked for Clearly, the petition for change of name must be filed by the person desiring to change his/her name, even if it may be signed and verified by some other person in his behalf. In this case, however, the petition was filed by Pang Cha Quen not by May Sia. Hence, only May Sia herself, alias Manman Huang, alias Mary Pang, when she shall have reached the age of majority, may file the petition to change her name. The decision to change her name, the reason for the change, and the choice of a new name and surname shall be hers alone to make. It must be her personal decision. No one else may make it for her. The reason is obvious. When she grows up to

adulthood, she may not want to use her stepfather's surname, nor any of the aliases chosen for her by her mother. In Moore vs. Republic, 8 SCRA 282, 284, we held: Another factor to be reckoned with is the fact that the child concerned is still a minor who for the present cannot fathom what would be his feeling when he comes to a mature age. Any way, if the time comes, he may decide the matter for himself and take such action as our law may permit. For the present we deem the action taken by petitioner premature. As pointed out by the Solicitor General, the State has an interest in the name borne by each individual for purposes of identification and the same should not be changed for trivial reasons like the instant case (Ty vs. Republic L-18669, November 29, 1965). A change of name is a mere privilege and not a matter of right (Ong Peng Oan vs. Republic, L-8035, November 29, 1957; Yu vs. Republic, L- 22040, November 29, 1965) and because the petition to change the name of the minor May Sia is not supported by weighty reasons, the trial court erred in granting it. WHEREFORE, the petition for certiorari is granted, and the order appealed from is hereby reversed and set aside. No costs. SO ORDERED. Narvasa, Cruz, Gancayco and Medialdea, JJ., concur G.R. No. L-18971 January 29, 1968 IN THE MATTER OF THE CHANGE OF NAME OF ABUNDIO ROTAQUIO. ABUNDIO ROTAQUIO, petitioner-appellee, vs. REPUBLIC OF THE PHILIPPINES, oppositor-appellant. Victor Clapano for petitioner-appellee. Office of the Solicitor General for oppositor-appellant. DIZON, J.: Appeal taken by the Republic of the Philippines from the order of the Court of First Instance of Davao in Special Proceedings No. 1100 entitled "In the Matter of the Change of Name of Abundio Rotaquio" allowing petitioner therein to change his family name from Rotaquio to Rota. On November 7, 1960 Abundio Rotaquio filed a petition with the above-named court for a change of his surname to "Rota", alleging that he was married and a bona fide resident of Davao City since 1945; that two of his four minor children have been carrying the family name of "Rota" in their school records; that his family name (Rotaquio) sounds like a Christian name and sometimes creates confusion among his friends and acquaintances; that the use of the family name "Rotaquio" by him and his two other children sometimes evoke unfavorable comments causing him embarrassment; and finally, that said family name has always been a handicap in his social, business and official dealings. After due publication of the petition and after hearing the same, as well as the opposition filed by the Provincial Fiscal of Davao, in representation of appellant, the lower court rendered the appealed judgment. Main contention of the Government in this appeal is that there is no proper and reasonable cause for allowing petitioner to change his family name. It appears that petitioner is a married resident of the city of Davao; that he has four children of school age, two of whom (Antonio and Celestina), for one reason or another, were enrolled under, and carry the family name Rota, while the other two (Victor and Editha) were enrolled under, and carry the surname Rotaquio; that even when petitioner was single, his surname was often taken for his Christian or given name, and on many occasions his acquaintances addressed him as "Taquio", or "Tags" or "Takoy" or as "Akoy". We agree with the Solicitor General that the State has an interest in the name borne and used by individuals for purposes of identification, and that the change of name is a mere privilege and not a matter of right, but it is likewise true that the authority may be granted by the courts if there is sufficient reason therefor: as when the change is necessary to avoid confusion. In the present case We believe that, as petitioner contends, his true surname gives rise to confusion because people often take it as his Christian name. The change thereof, therefore, can not be considered as arbitrary or whimsical, especially there being in this case no claim or pretense that petitioner seeks the change to achieve some unlawful purpose. WHEREFORE, the order appealed from is hereby affirmed, without costs.1wph1.t Concepcion, C.J., Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur. G.R. No. 186027 December 8, 2010 REPUBLIC OF THE PHILIPPINES, Petitioner, vs. MERLYN MERCADERA through her Attorney-in-Fact, EVELYN M. OGA, Respondent. D E C I S I O N MENDOZA, J.:

This petition for review on certiorari assails the December 9, 2008 Decision1 of the Court of Appeals (CA), in CA G.R. CV No. 00568-MIN, which affirmed the September 28, 2005 Order of the Regional Trial Court of Dipolog City, Branch 8 (RTC), in a petition for correction of entries, docketed as Special Proceedings No. R-3427 (SP No. R-3427), filed by respondent Merlyn Mercadera (Mercadera) under Rule 108 of the Rules of Court. The Factual and Procedural Antecedents On June 6, 2005, Merlyn Mercadera (Mercadera), represented by her sister and duly constituted Attorney-in-Fact, Evelyn M. Oga (Oga), sought the correction of her given name as it appeared in her Certificate of Live Birth - fromMarilyn L. Mercadera to Merlyn L. Mercadera before the Office of the Local Civil Registrar of Dipolog City pursuant to Republic Act No. 9048 (R.A. No. 9048).2 Under R.A. No. 9048, the city or municipal civil registrar or consul general, as the case may be, is now authorized to effect the change of first name or nickname and the correction of clerical or typographical errors in civil registry entries. "Under said law, jurisdiction over applications for change of first name is now primarily lodged with administrative officers. The law now excludes the change of first name from the coverage of Rules 103 until and unless an administrative petition for change of name is first filed and subsequently denied"3 and removes "correction or changing of clerical errors in entries of the civil register from the ambit of Rule 108." Hence, what is left for the scope of operation of the rules are substantial changes and corrections in entries of the civil register.4 The Office of the Local Civil Registrar of Dipolog City, however, refused to effect the correction unless a court order was obtained "because the Civil Registrar therein is not yet equipped with a permanent appointment before he can validly act on petitions for corrections filed before their office as mandated by Republic Act 9048."5 Mercadera was then constrained to file a Petition For Correction of Some Entries as Appearing in the Certificate of Live Birth under Rule 108 before the Regional Trial Court of Dipolog City (RTC). The petition was docketed as Special Proceedings No. R-3427 (SP No. R-3427). Section 2 of Rule 108 reads: SEC. 2. Entries subject to cancellation or correction. Upon good and valid grounds, the following entries in the civil register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o)changes of name. [Underscoring supplied] Upon receipt of the petition for correction of entry, the RTC issued an order, dated June 10, 2005, which reads: Finding the petition sufficient in form and substance, notice is hereby given that the hearing of said petition is set on JULY 26, 2005 at 8:30 oclock in the morning, at the Session Hall of Branch 8, this Court, Bulwagan ng Katarungan, Dipolog City, on which date, time and place, anyone appearing to contest the petition shall state in writing his grounds there[for], serving a copy thereof to the petitioner and likewise file copies with this Court on or before the said date of hearing. Let this order be published at the expense of petitioner once a week for three (3) consecutive weeks in a newspaper edited and published in Dipolog City and of general circulation therein, the City of Dapitan and the province of Zamboanga del Norte, and copies hereof be furnished to the Office of the Solicitor General of (sic) 134 Amorsolo St., Legaspi Village, Makati, Metro Manila, the City Civil Registrar of Dipolog, and posted on the bulletin boards of the City Hall of Dipolog, the Provincial Capitol Building, and of this Court. IT IS SO ORDERED. The Office of the Solicitor General (OSG) entered its appearance for the Republic of the Philippines and deputized the Office of the City Prosecutor to assist in the case only on the very day of the hearing. This prompted the court to reset the hearing on September 5, 2005. On said day, there being no opposition, counsel for Mercadera moved for leave of court to

present evidence ex parte. Without any objection from the City Prosecutor, the trial court designated the branch clerk of court to receive evidence for Mercadera. On September 15, 2005, the testimony of Oga and several photocopies of documents were formally offered and marked as evidence to prove that Mercadera never used the name "Marilyn" in any of her public or private transactions. On September 26, 2005, the RTC issued an order6 admitting Exhibits "A" to "I"7 and their submarkings, as relevant to the resolution of the case. The following facts were gathered from documentary evidence and the oral testimony of Oga, as reported by the lower court: Petitioner Merlyn M. Mercadera was born on August 19, 1970 at Dipolog City. She is the daughter of spouses Tirso U. Mercadera and Norma C. Lacquiao. The fact of her birth was reported to the Office of the City Civil Registrar of Dipolog City on September 8, 1970. It was recorded on page 68, book no. 9, in the Registry of Births of said civil registry. In the certification of birth dated May 9, 2005 issued by the same registry, her given name appears as Marilyn and not Merlyn (Exhibit "C"). On September 29, 1979, petitioner was baptized according to the rites and ceremonies of the United Church of Christ in the Philippines. As reflected in her certificate of baptism issued by said church, she was baptized by the name Merlyn L. Mercadera (Exhibit "D"). In her elementary diploma issued by the Paaralang Sentral ng Estaka, Dipolog City; her high school diploma issued by the Zamboanga del Norte School of Arts and Trades, Dipolog City; and college diploma issued by the Silliman University, Dumaguete City, where she earned the degree of Bachelor of Secondary Education, uniformly show her name as Merlyn L. Mercadera (Exhibits "E", "F", and "G"). Presently, she is working in U.P. Mindanao, Buhangin, Davao City. Her certificate of membership issued by the Government Service Insurance System also bears his [sic] complete name as Merlyn Lacquiao Mercadera (Exhibit "H"). When she secured an authenticated copy of her certificate of live birth from the National Statistics Office, she discovered that her given name as registered is Marilyn and not Merlyn; hence, this petition. In its September 28, 2005 Decision,8 the RTC granted Mercaderas petition and directed the Office of the City Civil Registrar of Dipolog City to correct her name appearing in her certificate of live birth, Marilyn Lacquiao Mercadera, to MERLYN Lacquiao Mercadera. Specifically, the dispositive portion of the RTC Decision reads: WHEREFORE, the petition is GRANTED. Accordingly, the Office of the City Civil Registrar of Dipolog City is hereby directed to correct the given name of petitioner appearing in her certificate of live birth, from Marilyn Lacquiao Mercadera to MERLYN Lacquiao Mercadera. In a four-page decision, the RTC ruled that the documentary evidence presented by Mercadera sufficiently supported the circumstances alleged in her petition. Considering that she had used "Merlyn" as her given name since childhood until she discovered the discrepancy in her Certificate of Live Birth, the RTC was convinced that the correction was justified. The OSG timely interposed an appeal praying for the reversal and setting aside of the RTC decision. It mainly anchored its appeal on the availment of Mercadera of the remedy and procedure under Rule 108. In its Brief9 filed with the CA, the OSG argued that the lower court erred (1) in granting the prayer for change of name in a petition for correction of entries; and (2) in admitting the photocopies of documentary evidence and hearsay testimony of Oga. For the OSG, the correction in the spelling of Mercaderas given name might seem innocuous enough to grant but "it is in truth a material correction as it would modify or increase substantive rights."10 What the lower court actually allowed was a change of Mercaderas given name, which would have been proper had she filed a petition under Rule 103 and proved any of the grounds therefor. The lower court, "may not substitute one for the other for purposes of expediency."11 Further, because Mercadera failed to invoke a specific ground recognized by the Rules, the lower courts order in effect allowed the change of ones name in the civil registry without basis. The CA was not persuaded. In its December 9, 2008 Decision, 12 the appellate court affirmed the questioned RTC Order in CA-G.R. CV No. 00568-MIN. The CA assessed the controversy in

this wise: Appellants insistence that the petition should have been filed under Rule 103 and not Rule 108 of the Rules of Court is off the mark. This Court does not entertain any doubt that the petition before the trial court was one for the correction on an entry in petitioners Certificate of Live Birth and not one in which she sought to change her name. In Co v. Civil Register of Manila, G.R. No. 138496, February 23, 2004, the High Court reiterated the distinction between the phrases "to correct" and "to change." Said the High Court: To correct simply means "to make or set aright; to remove the faults or error from." To change means "to replace something with something else of the same kind or with something that serves as a substitute. Article 412 of the New Civil Code does not qualify as to the kind of entry to be changed or corrected or distinguished on the basis of the effect that the correction or change may be. Such entries include not only those clerical in nature but also substantial errors. After all, the role of the Court under Rule 108 of the Rules of Court is to ascertain the truths about the facts recorded therein. That appellee sought to correct an entry and not to change her name is patent to the Court from the allegations in her petition, specifically, paragraphs 7 and 8 thereof x x x x Anent the RTCs error in admitting the photocopies of Mercaderas documentary evidence and in vesting probative value to Ogas testimony, the CA cited the well-established rule that "evidence not objected to may be admitted and may be validly considered by the court in arriving at its judgment."13 On March 6, 2009, the OSG filed the present petition. On behalf of Mercadera, the Public Attorneys Office (PAO) filed its Comment14 on July 3, 2009. The OSG declined to file a reply claiming that its petition already contained an exhaustive discussion on the following assigned errors:15 I THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN GRANTING THE CHANGE IN RESPONDENTS NAME UNDER RULE 103. II THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN CONSIDERING SECONDARY EVIDENCE. Rule 103 procedurally governs judicial petitions for change of given name or surname, or both, pursuant to Article 376 of the Civil Code.16 This rule provides the procedure for an independent special proceeding in court to establish the status of a person involving his relations with others, that is, his legal position in, or with regard to, the rest of the community.17 In petitions for change of name, a person avails of a remedy to alter the "designation by which he is known and called in the community in which he lives and is best known."18 When granted, a persons identity and interactions are affected as he bears a new "label or appellation for the convenience of the world at large in addressing him, or in speaking of, or dealing with him."19 Judicial permission for a change of name aims to prevent fraud and to ensure a record of the change by virtue of a court decree. The proceeding under Rule 103 is also an action in rem which requires publication of the order issued by the court to afford the State and all other interested parties to oppose the petition. When complied with, the decision binds not only the parties impleaded but the whole world. As notice to all, publication serves to indefinitely bar all who might make an objection. "It is the publication of such notice that brings in the whole world as a party in the case and vests the court with jurisdiction to hear and decide it."20 Essentially, a change of name does not define or effect a change of ones existing family relations or in the rights and duties flowing therefrom. It does not alter ones legal capacity or civil status.21 However, "there could be instances where the change applied for may be open to objection by parties who already bear the surname desired by the applicant, not because he would thereby acquire certain family ties with them but because the existence of such ties might be erroneously impressed on the public mind."22 Hence, in requests for a change of name, "what is involved is not a mere matter of allowance or disallowance of the request, but a judicious evaluation of the sufficiency and propriety of the justifications advanced x x x mindful of the consequent results in the event of its grant x x x."23 Rule 108, on the other hand, implements judicial proceedings for the correction or cancellation of entries in the civil registry pursuant to Article 412 of the Civil Code.24 Entries in the civil

register refer to "acts, events and judicial decrees concerning the civil status of persons,"25 also as enumerated in Article 408 of the same law.26Before, only mistakes or errors of a harmless and innocuous nature in the entries in the civil registry may be corrected under Rule 108 and substantial errors affecting the civil status, citizenship or nationality of a party are beyond the ambit of the rule. In the abandoned case of Chua Wee v. Republic,27 this Court declared that, x x x if Rule 108 were to be extended beyond innocuous or harmless changes or corrections of errors which are visible to the eye or obvious to the understanding, so as to comprehend substantial and controversial alterations concerning citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, said Rule 108 would thereby become unconstitutional for it would be increasing or modifying substantive rights, which changes are not authorized under Article 412 of the new Civil Code." In the latter case of Wong v. Republic,28 however, Justice Vicente Abad Santos, in a separate concurrence, opined that Article 412, which Rule 108 implements, contemplates all kinds of issues and all types of procedures because "the provision does not say that it applies only to non-controversial issues and that the procedure to be used is summary in nature." In Republic v. Judge De la Cruz,29 the dissenting opinion penned by Justice Pacifico De Castro echoed the same view: It is not accurate to say that Rule 108 would be rendered unconstitutional if it would allow the correction of more than mere harmless clerical error, as it would thereby increase or modify substantive rights which the Constitution expressly forbids because Article 412 of the Civil Code, the substantive law sought to be implemented by Rule 108, allows only the correction of innocuous clerical errors not those affecting the status of persons. As was stressed in the dissent on the aforesaid Wong Case, Article 412 does not limit in its express terms nor by mere implication, the correction authorized by it to that of mere clerical errors. x x x it would be reasonable and justified to rule that Article 412 contemplates of correction of erroneous entry of whatever nature, procedural safeguards having only to be provided for, as was the manifest purpose of Rule 108. x x x proceedings for the correction of erroneous entry should not be considered as establishing one's status in a legal manner conclusively beyond dispute or controversion, x x x the books making up the civil register and all documents relating thereto x x x shall be prima facie evidence of the facts therein contained. Hence, the status as corrected would not have a superior quality for evidentiary purpose. Moreover, the correction should not imply a change of status but a mere rectification of error to make the matter corrected speak for the truth. x x x Finally in Republic v. Valencia,30 the above stated views were adopted by this Court insofar as even substantial errors or matters in a civil registry may be corrected and the true facts established, provided the parties aggrieved avail themselves of the appropriate adversary proceeding. "If the purpose of the petition is merely to correct the clerical errors which are visible to the eye or obvious to the understanding, the court may, under a summary procedure, issue an order for the correction of a mistake. However, as repeatedly construed, changes which may affect the civil status from legitimate to illegitimate, as well as sex, are substantial and controversial alterations which can only be allowed after appropriate adversary proceedings depending upon the nature of the issues involved. Changes which affect the civil status or citizenship of a party are substantial in character and should be threshed out in a proper action depending upon the nature of the issues in controversy, and wherein all the parties who may be affected by the entries are notified or represented and evidence is submitted to prove the allegations of the complaint, and proof to the contrary admitted x x x."31 "Where such a change is ordered, the Court will not be establishing a substantive right but only correcting or rectifying an erroneous entry in the civil registry as authorized by law. In short, Rule 108 of the Rules of Court provides only the procedure or mechanism for the proper enforcement of the substantive law embodied in Article 412 of the Civil Code and so does not violate the Constitution."32 In the case at bench, the OSG posits that the conversion from "MARILYN" to "MERLYN" is not a correction of an innocuous error but a material correction tantamount to a change of name

which entails a modification or increase in substantive rights. For the OSG, this is a substantial error that requires compliance with the procedure under Rule 103, and not Rule 108. It appears from these arguments that there is, to some extent, confusion over the scope and application of Rules 103 and Rule 108. Where a "change of name" will necessarily be reflected by the corresponding correction in an entry, as in this case, the functions of both rules are often muddled. While there is no clear-cut rule to categorize petitions under either rule, this Court is of the opinion that a resort to the basic distinctions between the two rules with respect to alterations in a persons registered name can effectively clear the seeming perplexity of the issue. Further, a careful evaluation of circumstances alleged in the petition itself will serve as a constructive guide to determine the propriety of the relief prayed for. The "change of name" contemplated under Article 376 and Rule 103 must not be confused with Article 412 and Rule 108. A change of ones name under Rule 103 can be granted, only on grounds provided by law. In order to justify a request for change of name, there must be a proper and compelling reason for the change and proof that the person requesting will be prejudiced by the use of his official name. To assess the sufficiency of the grounds invoked therefor, there must be adversarial proceedings.33 In petitions for correction, only clerical, spelling, typographical and other innocuous errors in the civil registry may be raised. Considering that the enumeration in Section 2, Rule 10834 also includes "changes of name," the correction of a patently misspelled name is covered by Rule 108. Suffice it to say, not all alterations allowed in ones name are confined under Rule 103. Corrections for clerical errors may be set right under Rule 108. This rule in "names," however, does not operate to entirely limit Rule 108 to the correction of clerical errors in civil registry entries by way of a summary proceeding. As explained above, Republic v. Valencia is the authority for allowing substantial errors in other entries like citizenship, civil status, and paternity, to be corrected using Rule 108 provided there is an adversary proceeding. "After all, the role of the Court under Rule 108 is to ascertain the truths about the facts recorded therein."35 A serious scrutiny of this petition reveals a glaring lack of support to the OSGs assumption that Mercadera intended to change her name under Rule 103. All that the petition propounded are swift arguments on the alleged procedural flaws of Mercaderas petition before the RTC. In the same vein, no concrete contention was brought up to convince this Court that the dangers sought to be prevented by the adversarial proceedings prescribed in Rule 103 are attendant in this case. Instead, the RTC found the documents presented by Mercadera to have satisfactorily shown that she had been known as MERLYN ever since, discounting the possibility that confusion, or a modification of substantive rights might arise. Truth be told, not a single oppositor appeared to contest the petition despite full compliance with the publication requirement. Thus, the petition filed by Mercadera before the RTC correctly falls under Rule 108 as it simply sought a correction of a misspelled given name. To correct simply means "to make or set aright; to remove the faults or error from." To change means "to replace something with something else of the same kind or with something that serves as a substitute."36 From the allegations in her petition, Mercadera clearly prayed for the lower court "to remove the faults or error" from her registered given name "MARILYN," and "to make or set aright" the same to conform to the one she grew up to, "MERLYN." It does not take a complex assessment of said petition to learn of its intention to simply correct the clerical error in spelling. Mercadera even attempted to avail of the remedy allowed by R.A. No. 9048 but she unfortunately failed to enjoy the expediency which the law provides and was constrained to take court action to obtain relief. Thus, the petition was clear in stating: 7. That as such, there is a need to correct her given name as appearing in her Certificate of Live Birth from MARILYN to MERLYN to conform to her true and correct given name that she had been using and had been known within the community x x x. 8. That herein petitioner went to the Office of the Local Civil Registrar of Dipolog City and requested them to

effect such correction in her Certificate of Live Birth, however, the Local Civil Registrar of Dipolog City will not effect such correction unless an order is obtained by herein petitioner from this Honorable Court because the Local Civil Registrar therein is not yet equipped with permanent appointment before he can validly act on petitions for corrections filed before their office as mandated by Republic Act 9048, hence the filing of this petition. [Emphases supplied] Indeed, there are decided cases involving mistakes similar to Mercaderas case which recognize the same a harmless error. In Yu v. Republic37 it was held that "to change Sincio to Sencio which merely involves the substitution of the first vowel i in the first name into the vowel e amounts merely to the righting of a clerical error." In Labayo-Rowe v. Republic,38 it was held that the change of petitioners name from "Beatriz Labayo/Beatriz Labayu" to "Emperatriz Labayo" was a mere innocuous alteration wherein a summary proceeding was appropriate. In Republic v. Court of Appeals, Jaime B. Caranto and Zenaida P. Caranto, the correction involved the substitution of the letters "ch" for the letter "d," so that what appears as "Midael" as given name would read "Michael." In the latter case, this Court, with the agreement of the Solicitor General, ruled that the error was plainly clerical, such that, "changing the name of the child from Midael C. Mazon to Michael C. Mazon cannot possibly cause any confusion, because both names can be read and pronounced with the same rhyme (tugma) and tone (tono, tunog, himig)."39 In this case, the use of the letter "a" for the letter "e," and the deletion of the letter "i," so that what appears as "Marilyn" would read as "Merlyn" is patently a rectification of a name that is clearly misspelled. The similarity between "Marilyn" and "Merlyn" may well be the object of a mix- up that blemished Mercaderas Certificate of Live Birth until her adulthood, thus, her interest to correct the same. The CA did not allow Mercadera the change of her name. What it did allow was the correction of her misspelled given name which she had been using ever since she could remember. It is worthy to note that the OSGs reliance on Republic vs. Hernandez40 is flawed. In that case, this Court said that "a change in a given name is a substantial matter" and that it "cannot be granted by means of any other proceeding that would in effect render it a mere incident or an offshoot of another special proceeding." While this Court stands true to the ruling in Hernandez, the said pronouncement therein was stated in a different tenor and, thus, inapplicable to this case. Hernandez was decided against an entirely different factual milieu. There was a petition for adoption that must not have led to a corresponding change in the adoptees given name because "it would be procedurally erroneous to employ a petition for adoption to effect a change of name in the absence of a corresponding petition for the latter relief at law." In the present case, the issue is the applicability of either Rule 103 or Rule 108 and the relief sought by Mercadera can in fact be granted under the latter. This Court finds no attempt on the part of Mercadera to render the requirements under Rule 103 illusory as in Hernandez. Besides, granting that Rule 103 applies to this case and that compliance with the procedural requirements under Rule 108 falls short of what is mandated, it still cannot be denied that Mercadera complied with the requirement for an adversarial proceeding before the lower court. The publication and posting of the notice of hearing in a newspaper of general circulation and the notices sent to the OSG and the Local Civil Registry are sufficient indicia of an adverse proceeding. The fact that no one opposed the petition, including the OSG, did not deprive the court of its jurisdiction to hear the same and did not make the proceeding less adversarial in nature. Considering that the OSG did not oppose the petition and the motion to present its evidence ex parte when it had the opportunity to do so, it cannot now complain that the proceedings in the lower court were procedurally defective. Indeed, it has become unnecessary to further discuss the reasons why the CA correctly affirmed the findings of the lower court especially in admitting and according probative value to the evidence presented by Mercadera. WHEREFORE, the December 9, 2008 Decision of the Court of Appeals in CA-G.R. CV No. 00568-MIN is AFFIRMED. SO ORDERED.