SECOND DIVISION Rodolfo filed a complaint8 for annulment of deed of sale and The spouses Martinez alleged in their
of deed of sale and The spouses Martinez alleged in their position paper that earnest
G.R. No. 162084 June 28, 2005
APRIL MARTINEZ, FRITZ DANIEL MARTINEZ and MARIA OLIVIA
MARTINEZ, petitioners,
vs.
RODOLFO G. MARTINEZ, respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari of the Decision1 of the
Court of Appeals (CA) in CA-G.R. SP No. 59420 setting aside and
reversing the decision of the Regional Trial Court (RTC) of Manila,
Branch 30, in Civil Case No. 00-96962 affirming, on appeal, the
decision of the Metropolitan Trial Court (MTC) of Manila in Civil
Case No. 164761 (CV) for ejectment.
The Antecedents
The spouses Daniel P. Martinez, Sr. and Natividad de Guzman-
Martinez were the owners of a parcel of land identified as Lot 18-B-
2 covered by Transfer Certificate of Title (TCT) No. 54334, as well as
the house constructed thereon.2 On March 6, 1993, Daniel, Sr.
executed a Last Will and Testament3 directing the subdivision of the
property into three lots, namely, Lots 18-B-2-A, 18-B-2-B and 18-B-
2-C. He then bequeathed the three lots to each of his sons, namely,
Rodolfo, Manolo and Daniel, Jr.; Manolo was designated as the
administrator of the estate.
In May 1995, Daniel, Sr. suffered a stroke which resulted in the
paralysis of the right side of his body. Natividad died on October 26,
1996.4 Daniel, Sr. passed away on October 6, 1997.5
On September 16, 1998, Rodolfo found a deed of sale purportedly
signed by his father on September 15, 1996, where the latter
appears to have sold Lot 18-B-2 to Manolo and his wife Lucila.6 He
also discovered that TCT No. 237936 was issued to the vendees
based on the said deed of sale.7
cancellation of TCT No. 237936 against his brother Manolo and his
sister-in-law Lucila before the RTC. He also filed a criminal complaint
for estafa through falsification of a public document in the Office of
the City Prosecutor against Manolo, which was elevated to the
Department of Justice.9
On motion of the defendants, the RTC issued an Order 10 on March
29, 1999, dismissing the complaint for annulment of deed of sale on
the ground that the trial court had no jurisdiction over the action
since there was no allegation in the complaint that the last will of
Daniel Martinez, Sr. had been admitted to probate. Rodolfo
appealed the order to the CA.11
On October 4, 1999, Rodolfo filed a Petition with the RTC of Manila
for the probate of the last will of the deceased Daniel Martinez, Sr. 12
In the meantime, the spouses Manolo and Lucila Martinez wrote
Rodolfo, demanding that he vacate the property. Rodolfo ignored
the letter and refused to do so. This prompted the said spouses to
file a complaint for unlawful detainer against Rodolfo in the MTC of
Manila. They alleged that they were the owners of the property
covered by TCT No. 237936, and that pursuant to Presidential
Decree (P.D.) No. 1508, the matter was referred to the barangayfor
conciliation and settlement, but none was reached. They appended
the certification to file action executed by the barangay chairman to
the complaint.
In his Answer13 to the complaint filed on October 11, 1999, Rodolfo
alleged, inter alia, that the complaint failed to state a condition
precedent, namely, that earnest efforts for an amicable settlement
of the matter between the parties had been exerted, but that none
was reached. He also pointed out that the dispute had not been
referred to the barangay before the complaint was filed.
On October 20, 1999, the spouses Martinez filed an Amended
Complaint in which they alleged that earnest efforts toward a
settlement had been made, but that the same proved futile. Rodolfo
filed his opposition thereto, on the ground that there was no motion
for the admission of the amended complaint. The trial court failed
to act on the matter.
efforts toward a compromise had been made and/or exerted by
them, but that the same proved futile. 14 No amicable settlement
was, likewise, reached by the parties during the preliminary
conference because of irreconcilable differences. The MTC was,
thus, impelled to terminate the conference. 15
On February 21, 2000, the trial court rendered judgment in favor of
the spouses Martinez. The fallo of the decision reads:
WHEREFORE, premises considered, judgment is rendered in favor of
plaintiff. The defendant, including any person claiming right under
him, is ordered:
1) To vacate the subject premises;
2) To pay plaintiff the sum of ₱10,000.00 a month starting
July 17, 1999, the date of last demand until he vacates the
same;
3) To pay the sum of ₱10,000.00 as and for attorney’s fees;
and
4) Costs of suit.
SO ORDERED.16
The trial court declared that the spouses Martinez had substantially
complied with Article 151 of the Family Code of the
Philippines17 based on the allegations of the complaint and the
appended certification to file action issued by the barangay captain.
Rodolfo appealed the decision to the RTC. On May 31, 2000, the RTC
rendered judgment affirming the appealed decision. He then filed a
petition for review of the decision with the CA, alleging that:
1. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH
FOUND WITHOUT MERIT THE DEFENSE OF PETITIONER THAT THERE
IS NO ALLEGATION IN THE COMPLAINT THAT PETITIONER HAS
UNLAWFULLY WITHHELD POSSESSION OF THE PROPERTY FROM
RESPONDENTS – A REQUIREMENT IN [AN] UNLAWFUL DETAINER
SUIT.
2. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH
FOUND THAT PETITIONER’S POSSESSION OF THE PROPERTY IS BY
MERE TOLERANCE OF RESPONDENTS.
3. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH
FOUND THAT THE RESPONDENTS HAVE A CAUSE OF ACTION.
4. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH
DID NOT RESOLVE THE SIXTH ISSUE, TO WIT, "Whether or not this
Court has jurisdiction over this case considering that the allegations
in the complaint makes out a case of accion publiciana."
5. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH
HAS NO JURISDICTION OVER THE CASE.
6. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH
FOUND THAT THE MANDATORY REQUIREMENT OF CONCILIATION
HAS BEEN COMPLIED WITH.
7. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH
FOUND THAT THERE WAS SUBSTANTIAL COMPLIANCE WITH THE
KATARUNGANG PAMBARANGAY LAW.
8. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH
FOUND THAT THE PENDENCY OF CIVIL CASE NO. 98-91147 AND
SPECIAL PROCEEDINGS NO. 99-95281, INVOLVING THE PETITIONER
AND RESPONDENTS AND INVOLVING THE SAME PROPERTY DID NOT
DIVEST THE MTC OF AUTHORITY TO DECIDE THE CASE.
9. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH
GRANTED THE RELIEF PRAYED FOR BY THE RESPONDENTS.
10. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC. 18
On November 27, 2003, the CA rendered judgment granting the
petition and reversing the decision of the RTC. The appellate court
ruled that the spouses Martinez had failed to comply with Article
151 of the Family code. The CA also held that the defect in their
complaint before the MTC was not cured by the filing of an
amended complaint because the latter pleading was not admitted
by the trial court.
Upon the denial of their motion for reconsideration of the said
decision, the spouses Martinez filed the present petition for review
on certiorari, in which they raise the following issues:
I.
WHETHER OR NOT THE CERTIFICATION TO FILE ACTION AND THE
ALLEGATIONS IN THE COMPLAINT THAT THE CASE PASSED
[THROUGH] THE BARANGAY BUT NO SETTLEMENT WAS REACHED,
ARE SUFFICIENT COMPLIANCE TO PROVE THAT, INDEED, EARNEST
EFFORTS WERE, IN FACT, MADE BUT THE SAME HAVE FAILED PRIOR
TO THE FILING OF THE COMPLAINT.
II.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY AND
SERIOUSLY ERRED IN FINDING THAT THERE WAS NON-COMPLIANCE
WITH THE REQUIREMENT PROVIDED FOR UNDER ARTICLE 151 OF
THE FAMILY CODE, CONSIDERING THAT ONE OF THE PARTIES TO A
SUIT IN THIS CASE IS NOT A MEMBER OF THE SAME FAMILY. 19
The petitioners alleged that they substantially complied with Article
151 of the Family Code, since they alleged the following in their
original complaint:
2. In compliance with P.D. 1508, otherwise known as the
"Katarungang Pambarangay," this case passed [through] the
Barangay and no settlement was forged between plaintiffs and
defendant as a result of which Certification to File Action was
issued by Barangay 97, Zone 8, District I, Tondo, Manila. xxx"
(Underscoring supplied)20
Further, the petitioners averred, they alleged in their position paper
that they had exerted earnest efforts towards a compromise which
proved futile. They also point out that the MTC resolved to
terminate the preliminary conference due to irreconcilable
difference between the parties. Besides, even before they filed their
original complaint, animosity already existed between them and the
respondent due to the latter’s filing of civil and criminal cases
against them; hence, the objective of an amicable settlement could
not have been attained. Moreover, under Article 150 of the Family
Code, petitioner Lucila Martinez had no familial relations with the
respondent, being a mere sister-in-law. She was a stranger to the
respondent; hence, there was no need for the petitioners 21 to
comply with Article 151 of the Family Code.
The petition is meritorious.
Article 151 of the Family Code provides:
Art. 151. No suit between members of the same family shall prosper
unless it should appear from the verified complaint or petition that
earnest efforts toward a compromise have been made, but that the
same have failed. If it is shown that no such efforts were, in fact,
made, the case must be dismissed.
This rule shall not apply to cases which may not be the subject of
compromise under the Civil Code.
The phrase "members of the family" must be construed in relation
to Article 150 of the Family Code, to wit:
Art. 150. Family relations include those:
(1) Between husband and wife;
(2) Between parents and children;
(3) Among other ascendants and descendants; and
(4) Among brothers and sisters, whether of the full or half-
blood.
Article 151 of the Family code must be construed strictly, it being an
exception to the general rule. Hence, a sister-in-law or brother-in-
law is not included in the enumeration.22
As pointed out by the Code Commission, it is difficult to imagine a
sadder and more tragic spectacle than a litigation between
members of the same family. It is necessary that every effort should
be made toward a compromise before a litigation is allowed to
breed hate and passion in the family and it is known that a lawsuit
between close relatives generates deeper bitterness than between
strangers.23
Thus, a party’s failure to comply with Article 151 of the Family Code follows that the same does not come within the purview of Art. 222,
before filing a complaint against a family member would render and plaintiff’s failure to seek a compromise before filing the
such complaint premature. complaint does not bar the same.24

In this case, the decision of the CA that the petitioners were
mandated to comply with Article 151 of the Family code and that
they failed to do so is erroneous.
First. Petitioner Lucila Martinez, the respondent’s sister-in-law, was
one of the plaintiffs in the MTC. The petitioner is not a member of
the same family as that of her deceased husband and the
respondent:
As regards plaintiff’s failure to seek a compromise, as an alleged
obstacle to the present case, Art. 222 of our Civil Code provides:
"No suit shall be filed or maintained between members of the same
family unless it should appear that earnest efforts toward a
compromise have been made, but that the same have failed, subject
to the limitations in Article 2035."
It is noteworthy that the impediment arising from this provision
applies to suits "filed or maintained between members of the same
family." This phrase, "members of the same family," should,
however, be construed in the light of Art. 217 of the same Code,
pursuant to which:
Second. The petitioners were able to comply with the requirements
of Article 151 of the Family Code because they alleged in their
complaint that they had initiated a proceeding against the
respondent for unlawful detainer in the Katarungang Pambarangay,
in compliance with P.D. No. 1508; and that, after due proceedings,
no amicable settlement was arrived at, resulting in
the barangay chairman’s issuance of a certificate to file action.25 The
Court rules that such allegation in the complaint, as well as the
certification to file action by the barangay chairman, is sufficient
compliance with article 151 of the Family Code. It bears stressing
that under Section 412(a) of Republic Act No. 7160, no complaint
involving any matter within the authority of the Lupon shall be
instituted or filed directly in court for adjudication unless there has
been a confrontation between the parties and no settlement was
reached.26
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The
Decision of the Court of Appeals in CA-G.R. SP No. 59420 is
REVERSED AND SET ASIDE. The Decision of the Metropolitan Trial
Court of Manila, as affirmed on appeal by the Regional Trial Court of
Manila, Branch 30, in Civil Case No. 164761(CV) is REINSTATED. No
costs.

SO ORDERED.
"Family relations shall include those:

(1) Between husband and wife;

(2) Between parent and child;

(3) Among other ascendants and their descendants;

(4) Among brothers and sisters."

Mrs. Gayon is plaintiff’s sister-in-law, whereas her children are his

nephews and/or nieces. Inasmuch as none of them is included in the
enumeration contained in said Art. 217 – which should be construed
strictly, it being an exception to the general rule – and Silvestre
Gayon must necessarily be excluded as party in the case at bar, it
EN BANC
G.R. No. L-28394 November 26, 1970
PEDRO GAYON, plaintiff-appellant,
vs.
SILVESTRE GAYON and GENOVEVA DE GAYON, defendants-
appellees.
German M. Lopez for plaintiff-appellant.
Pedro R. Davila for defendants-appellees.
CONCEPCION, C.J.:
Appeal, taken by plaintiff Pedro Gayon, from an order of the Court
of First Instance of Iloilo dismissing his complaint in Civil Case No.
7334 thereof.
The records show that on July 31, 1967, Pedro Gayon filed said
complaint against the spouses Silvestre Gayon and Genoveva de
Gayon, alleging substantially that, on October 1, 1952, said spouses
executed a deed — copy of which was attached to the complaint, as
Annex "A" — whereby they sold to Pedro Gelera, for the sum of
P500.00, a parcel of unregistered land therein described, and
located in the barrio of Cabubugan, municipality of Guimbal,
province of Iloilo, including the improvements thereon, subject to
redemption within five (5) years or not later than October 1, 1957;
that said right of redemption had not been exercised by Silvestre
Gayon, Genoveva de Gayon, or any of their heirs or successors,
despite the expiration of the period therefor; that said Pedro Gelera
and his wife Estelita Damaso had, by virtue of a deed of sale — copy
of which was attached to the complaint, as Annex "B" — dated
March 21, 1961, sold the aforementioned land to plaintiff Pedro
Gayon for the sum of P614.00; that plaintiff had, since 1961,
introduced thereon improvements worth P1,000; that he had,
moreover, fully paid the taxes on said property up to 1967; and that
Articles 1606 and 1616 of our Civil Code require a judicial decree for
the consolidation of the title in and to a land acquired through a
conditional sale, and, accordingly, praying that an order be issued in
plaintiff's favor for the consolidation of ownership in and to the
aforementioned property.
In her answer to the complaint, Mrs. Gayon alleged that her
husband, Silvestre Gayon, died on January 6, 1954, long before the
institution of this case; that Annex "A" to the complaint is fictitious,
for the signature thereon purporting to be her signature is not hers;
that neither she nor her deceased husband had ever executed "any
document of whatever nature in plaintiff's favor"; that the
complaint is malicious and had embarrassed her and her children;
that the heirs of Silvestre Gayon had to "employ the services of
counsel for a fee of P500.00 and incurred expenses of at least
P200.00"; and that being a brother of the deceased Silvestre Gayon,
plaintiff "did not exert efforts for the amicable settlement of the
case" before filing his complaint. She prayed, therefore, that the
same be dismissed and that plaintiff be sentenced to pay damages.
Soon later, she filed a motion to dismiss, reproducing substantially
the averments made in her answer and stressing that, in view of the
death of Silvestre Gayon, there is a "necessity of amending the
complaint to suit the genuine facts on record." Presently, or on
September 16, 1967, the lower court issued the order appealed
from, reading:
Considering the motion to dismiss and it appearing
from Exhibit "A" annexed to the complaint that
Silvestre Gayon is the absolute owner of the land
in question, and considering the fact that Silvestre
Gayon is now dead and his wife Genoveva de
Gayon has nothing to do with the land subject of
plaintiff's complaint, as prayed for, this case is
hereby dismissed, without pronouncement as to
costs.1
A reconsideration of this order having been denied, plaintiff
interposed the present appeal, which is well taken.
Said order is manifestly erroneous and must be set aside. To begin
with, it is not true that Mrs. Gayon "has nothing to do with the land
subject of plaintiff's complaint." As the widow of Silvestre Gayon,
she is one of his compulsory heirs2and has, accordingly, an interest
in the property in question. Moreover, her own motion to dismiss
indicated merely "a necessity of amending the complaint," to the
end that the other successors in interest of Silvestre Gayon, instead
of the latter, be made parties in this case. In her opposition to the
aforesaid motion for reconsideration of the plaintiff, Mrs. Gayon
alleged, inter alia, that the "heirs cannot represent the dead
defendant, unless there is a declaration of heirship." Inasmuch,
however, as succession takes place, by operation of law, "from the
moment of the death of the decedent" 3 and "(t)he inheritance
includes all the property, rights and obligations of a person which
are not extinguished by his death,"4 it follows that if his heirs were
included as defendants in this case, they would be sued, not as
"representatives" of the decedent, but as owners of an aliquot
interest in the property in question, even if the precise extent of
their interest may still be undetermined and they have derived it
from the decent. Hence, they may be sued without a previous
declaration of heirship, provided there is no pending special
proceeding for the settlement of the estate of the decedent. 5
As regards plaintiff's failure to seek a compromise, as an alleged
obstacle to the present case, Art. 222 of our Civil Code provides:
No suit shall be filed or maintained between
members of the same family unless it should
appear that earnest efforts toward a compromise
have been made, but that the same have failed,
subject to the limitations in article 2035.
It is noteworthy that the impediment arising from this provision
applies to suits "filed or maintained between members of the same
family." This phrase, "members of the same family," should,
however, be construed in the light of Art. 217 of the same Code,
pursuant to which:
Family relations shall include those:
(1) Between husband and wife;
(2) Between parent and child;
(3) Among other ascendants and their
descendants;
 (4) Among brothers and sisters.

Mrs. Gayon is plaintiff's sister-in-law, whereas her children are his

nephews and/or nieces. Inasmuch as none of them is included in the
enumeration contained in said Art. 217 — which should be
construed strictly, it being an exception to the general rule — and
Silvestre Gayon must necessarily be excluded as party in the case at
bar, it follows that the same does not come within the purview of
Art. 222, and plaintiff's failure to seek a compromise before filing
the complaint does not bar the same.

WHEREFORE, the order appealed from is hereby set aside and the
case remanded to the lower court for the inclusion, as defendant or
defendants therein, of the administrator or executor of the estate of
Silvestre Gayon, if any, in lieu of the decedent, or, in the absence of
such administrator or executor, of the heirs of the deceased
Silvestre Gayon, and for further proceedings, not inconsistent with
this decision, with the costs of this instance against defendant-
appellee, Genoveva de Gayon. It is so ordered.
THIRD DIVISION
G.R. No. 97898 August 11, 1997
FLORANTE F. MANACOP, petitioner,
vs.
COURT OF APPEALS and E & L MERCANTILE, INC., respondents.
PANGANIBAN, J.:
May a writ of execution of a final and executory judgment
issued before the effectivity of the Family Code be executed on a
house and lot constituted as a family home under the provision of
said Code?
State of the Case
This is the principal question posed by petitioner in
assailing the Decision of Respondent Court of Appeals1 in
CA-G.R. SP No. 18906 promulgated on February 21, 1990
and its Resolution promulgated on March 21, 1991,
affirming the orders issued by the trial court commanding
the issuance of various writs of execution to enforce the
latter's decision in Civil Case No. 53271.
The Facts
Petitioner Florante F. Manacop2 and his wife Eulaceli
purchased on March 10, 1972 a 446-square-meter
residential lot with a bungalow, in consideration of
P75,000.00.3 The property, located in Commonwealth
Village, Commonwealth Avenue, Quezon City, is covered by
Transfer Certificate of Title No. 174180.
On March 17, 1986, Private Respondent E & L Merchantile,
Inc. filed a complaint against petitioner and F.F. Manacop
Construction Co., Inc. before the Regional Trial Court of
Pasig, Metro Manila to collect an indebtedness of
P3,359,218.45. Instead of filing an answer, petitioner and
his company entered into a compromise agreement with
private respondent, the salient portion of which provides:
c. That defendants will undertake to pay the
amount of P2,000,000.00 as and when their
means permit, but expeditiously as possible as
their collectibles will be collected. (sic)
On April 20, 1986, the trial court rendered judgment
approving the aforementioned compromise agreement. It
enjoined the parties to comply with the agreement in good
faith. On July 15, 1986, private respondent filed a motion
for execution which the lower court granted on September
23, 1986. However, execution of the judgment was
delayed. Eventually, the sheriff levied on several vehicles
and other personal properties of petitioner. In partial
satisfaction of the judgment debt, these chattels were sold
at public auction for which certificates of sale were
correspondingly issued by the sheriff.
On August 1, 1989, petitioner and his company filed a
motion to quash the alias writs of execution and to stop the
sheriff from continuing to enforce them on the ground that
the judgment was not yet executory. They alleged that the
compromise agreement had not yet matured as there was
no showing that they had the means to pay the
indebtedness or that their receivables had in fact been
collected. They buttressed their motion with supplements
and other pleadings.
On August 11, 1989, private respondent opposed the
motion on the following grounds: (a) it was too late to
question the September 23, 1986 Order considering that
more than two years had elapsed; (b) the second alias writ
of execution had been partially implemented; and (c)
petitioner and his company were in bad faith in refusing to
pay their indebtedness notwithstanding that from February
1984 to January 5, 1989, they had collected the total
amount of P41,664,895.56. On September 21, 1989, private
respondent filed an opposition to petitioner and his
company's addendum to the motion to quash the writ of
execution. It alleged that the property covered by TCT No.
174180 could not be considered a family home on the
grounds that petitioner was already living abroad and that
the property, having been acquired in 1972, should have
been judicially constituted as a family home to exempt it
from execution.
On September 26, 1989, the lower court denied the motion
to quash the writ of execution and the prayers in the
subsequent pleadings filed by petitioner and his company.
Finding that petitioner and his company had not paid their
indebtedness even though they collected receivables
amounting to P57,224,319.75, the lower court held that
the case had become final and executory. It also ruled that
petitioner's residence was not exempt from execution as it
was not duly constituted as a family home, pursuant to the
Civil Code.
Hence, petitioner and his company filed with the Court of
Appeals a petition for certiorari assailing the lower court's
Orders of September 23, 1986 and September 26, 1989. On
February 21, 1990, Respondent Court of Appeals rendered
its now questioned Decision dismissing the petition
for certiorari. The appellate court quoted with approval the
findings of the lower court that: (a) the judgment based on
the compromise agreement had become final and
executory, stressing that petitioner and his company had
collected the total amount of P57,224,319.75 but still failed
to pay their indebtedness and (b) there was no showing
that petitioner's residence had been duly constituted as a
family home to exempt it from execution. On the second
finding, the Court of Appeals added that:
. . . . We agree with the respondent judge that
there is no showing in evidence that petitioner
Mañacop's residence under TCT 174180 has been
duly constituted as a family home in accordance
with law. For one thing, it is the clear implication
of Article 153 that the family home continues to
be so deemed constituted so long as any of its
beneficiaries enumerated in Article 154 actually
resides therein. Conversely, it ceases to continue
as such family home if none of its beneficiaries
actually occupies it. There is no showing in
 evidence that any of its beneficiaries is actually
residing therein. On the other hand, the unrefuted
assertion of private respondent is that petitioner
Florante Mañacop had already left the country
and is now, together with all the members of his
family, living in West Covina, Los Angeles,
California, U.S.A.
Petitioner and his company filed a motion for
reconsideration of this Decision on the ground that the
property covered by TCT No. 174180 was exempt from
execution. On March 21, 1991, the Court of Appeals
rendered the challenged Resolution denying the motion. It
anchored its ruling on Modequillo v. Breva,4 which held that
"all existing family residences at the time of the effectivity
of the Family Code are considered family homes and
are prospectively entitled to the benefits accorded to a
family home under the Family Code."
Applying the foregoing pronouncements to this case, the
Court of Appeals explained:
The record of the present case shows that
petitioners incurred the debt of P3,468,000.00
from private respondent corporation on February
18, 1982 (Annex "A", Petition). The judgment
based upon the compromise agreement was
rendered by the court on April 18, 1986 (Annex
"C", ibid). Paraphrasing the aforecited Modequillo
case, both the debt and the judgment preceded
the effectivity of the Family Code on August 3,
1988. Verily, the case at bar does not fall under
the exemptions from execution provided under
Article 155 of the Family Code.
Undeterred, petitioner filed the instant petition for review
on certiorari arguing that the Court of Appeals
misapplied Modequillo. He contends that there was no
need for him to constitute his house and lot as a family
home for it to be treated as such since he was and still is a
resident of the same property from the time "it was levied
upon and up to this moment."
The Issue
As stated in the opening sentence of this Decision, the issue
in this case boils down to whether a final and executory
decision promulgated and a writ of execution issued before
the effectivity of the Family Code can be executed on a
family home constituted under the provisions of the said
Code.
The Court's Ruling
We answer the question in the affirmative. The Court of
Appeals committed no reversible error. On the contrary, its
Decision and Resolution are supported by law and
applicable jurisprudence.
No Novel Issue
At the outset, the Court notes that the issue submitted for
resolution in the instant case is not entirely new.
In Manacop v. Court of Appeals,5 petitioner himself as a
party therein raised a similar question of whether this very
same property was exempt from preliminary
attachment for the same excuse that it was his family
home. In said case, F.F. Cruz & Co., Inc. filed a complaint for
a sum of money. As an incident in the proceedings before
it, the trial court issued writ of attachment on the said
house and lot. In upholding the trial court (and the Court of
Appeals) in that case, we ruled that petitioner incurred the
indebtedness in 1987 or prior to the effectively of the
Family Code on August 3, 1988. Hence, petitioner's family
home was not exempt from attachment "by sheer force of
exclusion embodied in paragraph 2, Article 155 of the
Family Code cited in Modequillo," where the Court
categorically ruled:
Under the Family Code, a family home is deemed
constituted on a house and lot from the time it is
occupied as a family residence. There is no need to
constitute the same judicially or extrajudicially as
required in the Civil Code. If the family actually
resides in the premises, it is, therefore, a family
home as contemplated by law. Thus, the creditors
should take the necessary precautions to protect
their interest before extending credit to the
spouses or head of the family who owns the
home.
Article 155 of the Family Code also provides as
follows:
Art. 155. The family home shall be exempt from
execution, forced sale or attachment except:
(1) For nonpayment of taxes;
(2) For debts incurred prior to the constitution of
the family home;
(3) For debts secured by mortgages on the
premises before or after such constitution; and
(4) For debts due to laborer, mechanics,
architects, builders, materialmen and others who
have rendered service or furnished material for
the construction of the building.
The exemption provided as aforestated is effective
from the time of the constitution of the family
home as such, and lasts so long as any of its
beneficiaries actually resides therein.
In the present case, the residential house and lot
of petitioner was not constituted as a family home
whether judicially or extrajudicially under the Civil
Code. It became a family home by operation of
law only under Article 153 of the Family Code. It is
deemed constituted as a family home upon the
effectivity of the Family Code on August 3, 1988
not August 4, one year after its publication in the
Manila Chronicle on August 4, 1987 (1988 being a
leap year).
The contention of petitioner that it should be
considered a family home from the time it was
 occupied by petitioner and his family in 1960 is
not well-taken. Under Article 162 of the Family
Code, it is provided that "the provisions of this
Chapter shall also govern existing family
residences insofar as said provisions are
applicable." It does not mean that Articles 152 and
153 of said Code have a retroactive effect such
that all existing family residences are deemed to
have been constituted as family homes at the time
of their occupation prior to the effectivity of the
Family Code and are exempt from execution for
the payment of obligations incurred before the
effectivity of the Family Code. Article 162 simply
means that all existing family residences at the
time of the effectivity of the Family Code, are
considered family homes and are prospectively
entitled to the benefits accorded to a family home
under the Family Code, Article 162 does not state
that provisions of Chapter 2, Title V have a
retroactive effect.
Is the family home of petitioner exempt from
execution of the money judgment aforecited? No.
The debt or liability which was the basis of the
judgment arose or was incurred at the time of the
vehicular accident on March 16, 1976 and the
money judgment arising therefrom was rendered
by the appellate court on January 29, 1988. Both
preceded the effectivity of the Family Code on
August 3, 1988. This case does not fall under the
exemptions from execution provided in the Family
Code.6 (Emphasis supplied.)
Article 153 of the Family Code
Has No Retroactive Effect
Petitioner contends that the trial court erred in holding
that his residence was not exempt from execution in view
of his failure to show that the property involved "has been
duly constituted as a family home in accordance with law."
He asserts that the Family Code and Modequillo require
simply the occupancy of the property by the petitioner,
without need for its judicial or extrajudicial constitution as (1) The husband and wife, or an unmarried person
a family home.7 who is the head of the family; and
Petitioner is only partly correct. True, under the Family (2) Their parents, ascendants, descendants,
Code which took effect on August 3, 1988, 8 the subject brothers and sisters, whether the relationship be
property became his family home under the simplified legitimate or illegitimate, who are living in the
process embodied in Article 153 of said code. family home and who depend upon the head of
However, Modequillo explicitly ruled that said provision of the family for lead support.
the Family Code does not have retroactive effect. In other
words, prior to August 3, 1988, the procedure mandated by This enumeration may include the in-laws where the family
the Civil Code9 had to be followed for a family home to be home is constituted jointly by the husband and wife. 11 But
constituted as such. There being absolutely no proof that the law definitely excludes maids and overseers. They are
the subject property was judicially or extrajudicially not the beneficiaries contemplated by the Code.
constituted as a family home, it follows that the law's Consequently, occupancy of a family home by an overseer
protective mantle cannot be availed of by petitioner. Since like Carmencita V. Abat in this case 12 is insufficient
the debt involved herein was incurred and the assailed compliance with the law.
orders of the trial court issued prior to August 3, 1988, the
petitioner cannot be shielded by the benevolent provisions WHEREFORE, the petition is hereby DENIED for utter lack of
of the Family Code. merit. This Decision is immediately executory. Double costs
against petitioner.
List of Beneficiary-Occupants Restricted
to Those Enumerated in the Code
In view of the foregoing discussion, there is no reason to
address the other arguments of petitioner other than to
correct his misconception of the law. Petitioner contends
that he should be deemed residing in the family home
because his stay in the United States is merely temporary.
He asserts that the person staying in the house is his
overseer and that whenever his wife visited this country,
she stayed in the family home. This contention lacks merit.
The law explicitly provides that occupancy of the family
home either by the owner thereof or by "any of its
beneficiaries" must be actual. That which is "actual" is
something real, or actually existing, as opposed to
something merely possible, or to something which is
presumptive or constructive. 10 Actual occupancy, however,
need not be by the owner of the house specifically. Rather,
the property may be occupied by the "beneficiaries"
enumerated by Article 154 of the Family Code.
Art. 154. The beneficiaries of a family home are:
FIRST DIVISION free patent, such property is therefore inalienable and not subject a) Declaring OCT No. P-12820
to any encumbrance for the payment of debt, pursuant to and Free Patent No 548906 both
Commonwealth Act No. 141. Petitioners further alleged that they in the name of Pablo Taneo as
were in continuous, open and peaceful possession of the land and null and void and directing the
G.R. No. 108532 March 9, 1999 that on February 9, 1968. Deputy Provincial Sheriff Jose V. Yasay Register of Deeds to cancel the
issued a Sheriffs Deed of Conveyance in favor of the private same, without prejudice
respondent over the subject property including their family home however on the part of the
PABLITO TANEO, JR., JOSE TANEO, NENA T. CATUBIG and
which was extrajudicially constituted in accordance with law. As a defendant to institute legal
HUSBAND, CILIA T. MORING and HUSBAND, petitioners,
result of the alleged illegal deed of conveyance, private respondent proceedings for the transfer of
vs.
was able to obtain in his name Tax Declaration No. 851920 over the the said title in the name of
COURT OF APPEALS and ABDON GILIG, respondents.
land, thus casting a cloud of doubt over the title and ownership of defendant Abdon Gilig;
petitioners over said property.
b) Declaring Abdon Gilig as the
Private respondent refuted petitioners' contentions alleging that he absolute and legal owner of the
KAPUNAN, J.:
lawfully acquired the subject properties described as Lot No. 5545, land covered by OCT No. P-
Cad. 237 which was a private land, by virtue of a Sheriffs Sale on 12820, and covered by Tax
The issues in this case are not novel: whether or not the conveyance February 12, 1996. Said sale has become final as no redemption was Declaration No. 851920, and
made by way of the sheriff's sale pursuant to the writ of execution made within one year from the registration of the Sheriffs hence entitled to the possession
issued by the trial court in Civil Case No. 590 is prohibited under Sec. Certificate of Sale. The validity of the sale in favor of Abdon Gilig was of the same and as a necessary
118 of Commonwealth Act No. 141; and whether or not the family even confirmed by the Court of Appeals in a related case (CA No. concomitant, admonishing the
home is exempt from execution. 499965-R) entitled "Arriola v. Gilig," where one Rufino Arriola also plaintiffs to refrain from
claimed ownership over the subject property. disturbing the peaceful
As a result of a judgment in Civil Case No. 590 (for recovery of possession of the defendant
property) in favor of private respondent, two (2) of petitioners' Private respondent averred that the subject land was originally over the land in question.
properties were levied to satisfy the judgment amount of about owned by Lazaro Ba-a who sold the land to Pablo Taneo on
P5,000.00: one was a parcel of land located in Barrio Igpit, September 18, 1941, as evidenced by an Escritura de Venta. Despite c) Likewise declaring the
Municipality of Opol, Misamis Oriental with an area of about five (5) it being a private land, Pablo Taneo filed an application for free defendant Abdon Gilig as the
hectares, and the other was the family home also located at Igpit, patent which was final only in 1979. true and absolute owner of the
Opol, Misamis Oriental. The subject properties were sold at public house in question formerly
auction on February 12, 1966 to the private respondent as the declared under Tax Declaration
As counterclaim, private respondent alleged that since petitioners
highest bidder. Consequently, after petitioners' failure to redeem No. 4142 in the name of Pablo
are still in possession of the subject property, he has been deprived
the same, a final deed of conveyance was executed on February 9, Taneo and presently declared
of acts of ownership and possession and therefore, prayed for
1968, definitely selling, transferring, and conveying said properties under Tax Declaration No
payment of rentals from February, 1968 until possession has been
to the private respondent. 851916 in the name of Abdon
restored to them.
Gilig; ordering the plaintiffs or
To forestall such conveyance, petitioners filed an action on any of their representatives to
In its decision of March 27, 1989, the RTC dismissed the complaint.
November 5, 1985 (docketed as Civil Case No. 10407) to declare the vacate and return the possession
deed of conveyance void and to quiet title over the land with a of the same to defendant Abdon
The dispositive portion thereof reads as follows:
prayer for a writ of preliminary injunction. In their complaint, it was Gilig;
alleged that petitioners are the children and heirs of Pablo Taneo
and Narcisa Valaceras who died on February 12, 1977 and Premises considered, Judgment is hereby
d) Ordering the plaintiffs, except
September 12, 1984, respectively. Upon their death, they left the rendered in favor of the defendant and against the
the nominal parties herein, to
subject property covered by OCT No. P-12820 and Free Patent No. plaintiffs, ordering the dismissal of the complaint
pay to defendant Abdon Gilig the
548906. Considering that said property has been acquired through filed by the plaintiffs;
 amount of P500.00 a month as
reasonable rental of the house in
question to be reckoned from
February 9, 1968 until the
possession of the same is
returned to the defendant.
e) To pay to defendant the
amount of P5,000.00 as
attorney's fees and to pay the
costs.
SO ORDERED. 1
On appeal, the Court of Appeals affirmed in toto the decision of the
RTC.
Hence, this petition.
The petition is devoid of merit.
In resolving the issues, the lower court made the following findings
of fact which this Court finds no cogent reason to disturb:
1. That the land in question
originally belonged to Lazaro Ba-
a who sold the same to the late
Pablito (sic) Taneo father of the
herein plaintiff on September 18,
1941, by virtue of an Escritura de
Venta identified as Reg. Not. 50;
pages 53, Foleo Not. V, Series of
1941 of the Notarial Register of
Ernie Pelaez (Exh. 10);
2. That on July 19, 1951 Abdon
Gilig with his wife filed a Civil
Case No. 590 for recovery of
property against Pablo
Taneo, et al., wherein Judgment
was rendered on June 24, 1964,
in favor of Abdon Gilig and
against Pablo Taneo ordering the
latter to pay damages in the
amount of P5,000.00 (Exh. 2);
3. That by virtue of said decision,
a writ of Execution was issued on
November 22, 1965 against the
properties of Pablo Taneo and
on December 1, 1965, a Notice
of Levy was executed by the
Clerk of Court Pedro Perez
wherein the properties in
question were among the
properties levied by the Sheriff
(Exh 3);
4. That the said properties were
sold at public auction wherein
the defendant Abdon Gilig came
out as the highest bidder and on
February 12, 1965, a Sheriffs
Certificate of Sale was executed
by Ex-Oficio Provincial Sheriff
Pedro Perez (Exh. 1) ceding the
said properties in favor of Abdon
Gilig and which Certificate of
Sale was registered with the
Register of Deeds on March 2,
1966;
5. That for failure to redeem the
said property within the
reglementary period, a Sheriffs
final Deed of Conveyance was
executed by same Provincial
Sheriff Jose V. Yasay on February
1968, (Exhs. 4, 4-A) conveying
the property definitely to Abdon
Gilig.
6. That on April 20, 1966, after
his third-party claim which he
filed with the Sheriff in Civil Case
No. 590 was not given due
course, Rufino Arriola filed Civil
Case No. 2667 entitled Arriola vs.
Abdon Gilig, et al., for Recovery
of Property and/or annulment of
Sale with Damages;
7. That Judgment was rendered
by the Court thru Judge
Bernardo Teves dismissing the
case with costs on February 21,
1969;
8. That said decision was
appealed to the Court of Appeals
which affirmed the decision in
toto on June 20, 979, declaring
the alleged Deed of Sale
executed by Abdon Gilig in favor
of the plaintiff as null and void
for being simulated or fictitious
and executed in fraud or (sic)
creditors;
9. That on March 7, 1964, Pablo
Taneo constituted the house in
question erected on the land of
Plutarco Vacalares as a family
home (Exh. F) but was however,
notarized only on May 2, 1965
and registered with the Register
of Deeds on June 24, 1966.
10. That in the meanwhile,
unknown to the defendant,
Pablo Taneo applied for a free
patent on the land in question
which was approved on October
13, 1973, (Exh. B) and the Patent
and Title issued on December
10, 1980 (Oct No. P-12820 - Exh.
12);
 11. On November 3, 1985, the
plaintiff filed the present
action. 2
Petitioners contend that under Section 118 of Commonwealth Act
No. 141, the subject land which they inherited from their father
under free patent cannot be alienated or encumbered in violation of
the law. Citing in particular the cases of Oliveros v.
Porciongcola 3 and Gonzaga v. Court of Appeals, 4 the execution or
auction sale of the litigated land falls within the prohibited period
and is. likewise, a disavowal of the rationale of the law which is to
give the homesteader or patentee every chance to preserve for
himself and his family the land which the State had gratuitously
given to him as a reward for his labor in cleaning and cultivating it. 5
We are not unmindful of the intent of the law. In fact, in Republic v.
Court of Appeals, 6 the Court elucidated, to wit:
It is well-known that the homestead laws were
designed to distribute disposable agricultural lots
of the State to land-destitute citizens for their
home and cultivation. Pursuant to such
benevolent intention the State prohibits the sale
or encumbrance of the homestead (Section 116)
within five years after the grant of the patent.
After that five-year period the law impliedly
permits alienation of the favor homestead; but in
line with the primordial purpose to favor the
homesteader and his family the statute provides
that such alienation or conveyance (Section 117)
shall be subject to the right of repurchase by the
homesteader, his widow of heirs within five years.
This Section 117 is undoubtedly a complement of
Section 116. It aims to preserve and keep in the
family of the homesteader that portion of public
land which the State had gratuitously given to him.
It would, therefore, be in keeping with this
fundamental idea to hold, as we hold, that the
right to repurchase exists not only when the
original homesteader makes the conveyance, but
also when it is made by his widow or heirs. This
construction is clearly deducible from the terms of
the statute.
The intent of the law is undisputable but under the facts of the case,
the prohibition invoked by the petitioners under Section 118 does
not apply to them.
Sec. 118 of Commonwealth Act No. 141 reads:
Except in favor of the Government or any of its
branches, units or institution, or legally
constituted banking corporations, lands acquired
under free patent or homestead provisions shall
not be subject to encumbrance or alienation from
the date of the approval of the application and for
a term of five years from and after the date of
issuance of the patent or grant, nor shall they
become liable to the satisfaction of any debt
contracted prior to the expiration of said period,
but the improvements or crops on the land may
be mortgaged or pledged to qualified persons,
associations, or corporations.
xxx xxx xxx
The prohibition against alienation of lands acquired by homestead
or free patent commences on the date of the approval of the
application for free patent and the five-year period is counted from
the issuance of the patent. The reckoning point is actually the date
of approval of the application. In Amper v. Presiding Judge, 7 the
Court held that:
. . . The date when the prohibition against the
alienation of lands acquired by homesteads or free
patents commences is "the date of the approval of
the application" and the prohibition embraces the
entire five-year period "from and after the date of
issuance of the patent or, grant." As stated
in Beniga v. Bugas, (35 SCRA 111), the provision
would make no sense if the prohibition starting
"from the date of the approval of the application"
would have no termination date.
The specific period of five years within which the
alienation or encumbrance of a homestead is
restricted starts to be computed from the date of
the issuance of the patent. But the prohibition of
alienation commences from the date the
application is approved which comes earlier.
(Emphasis ours.)
Following this ruling, we agree with the respondent court that the
conveyance made by way of the sheriff's sale was not violative of
the law. The judgment obligation of the petitioners against Abdon
Gilig arose on June 24, 1964. The properties were levied and sold at
public auction with Abdon Gilig as the highest bidder on February
12, 1966. On February 9, 1968, the final deed of conveyance ceding
the subject property to Abdon Gilig was issued after the petitioners
failed to redeem the property after the reglementary period. Pablo
Taneo`s application for free parent was approved only on October
19, 1973.
The sequence of the events leads us to the inescapable conclusion
that even before the application for homestead had been approved,
Pablo Taneo was no longer the owner of the land. The deed of
conveyance issued on February 9, 1968 finally transferred the
property to Abdon Gilig. As of that date, Pablo Taneo did not
actually have transferred to herein petitioners. The petitioners are
not the owners of the land and cannot claim to be such by invoking
Commonwealth Act No. 141. The prohibition does not apply since it
is clear from the records that the judgment debt and the execution
sale took place prior to the approval of the application for free
patent. We quote with favor the respondent court's valid
observation on the matter:
. . . the application of Pablo Taneo for a free
patent was approved only on 19 October 1973 and
Free Patent was issued on 10 December 1980.
Under the aforecited provision, the subject land
could not be made liable for the satisfaction of any
debt contracted from the time of the application
and during the 5-year period following 10
December 1980, or until 10 December 1985.
However, debts contracted prior to the approval
of the application for free patent, that is prior to
18 October 1973, are not covered by the
prohibition. This is because they do not fall within
the scope of the prohibited period. In this case,
the judgment debt in favor of defendant-appellee
 was rendered on 24 June 1964, the writ of
execution issued on 22 November 1965, notice of
levy made on 1 December 1965, the execution
sale held on 12 February 1966, and the certificate
of sale registered on 2 March 1966, all before
Pablo Taneo's application for free patent was
approved on 19 October 1973. The execution,
therefore, was not violative of the law. 8
Anent the second issue, petitioners aver that the house which their
father constituted as family home is exempt from execution. In a
last ditch effort to save their property, petitioners invoke the
benefits accorded to the family home under the Family Code.
A family home is the dwelling place of a person and his family. It is
said, however, that the family home is a real right, which is
gratuitous, inalienable and free from attachment, constituted over
the dwelling place and the land on which it is situated, which
confers upon a particular family the right to enjoy such properties,
which must remain with the person constituting it and his heirs. 9 It
cannot be seized by creditors except in certain specials cases.
Under the Civil Code (Articles 224 to 251), a family home may be
constituted judicial and extrajudicially, the former by the filing of
the petition and with the approval of the proper court, and the
latter by the recording of a public instrument in the proper registry
of property declaring the establishment of the family home. The
operative act then which created the family home extrajudicially
was the registration in the Registry of Property of the declaration
prescribed by Articles 240 and 241 of the Civil Code. 10
Under the Family Code, however. registration was no longer
necessary Article 153 of the Family Code provides that the family
home is deemed constituted on a house and lot from the time it is
occupied in the family. It reads:
The family home is deemed constituted on a
house and lot from the time it is occupied as
family residence. From the time of its constitution
and so long as its beneficiaries actually resides
therein, the family home continues to be such and
is exempt from execution, forced sale or
attachment, except as hereinafter provided and to
the extent of the value allowed by law.
It is under the foregoing provision which petitioners seek refuge to
avert execution of the family home arguing that as early as 1964,
Pablo Taneo had already constituted the house in question as their
family home. However, the retroactive effect of the Family Code,
particularly on the provisions on the family home has been clearly
laid down by the court as explained in the case of Manacop v. Court
of Appeals 11 to wit:
Finally, the petitioner insists that the attached
property is a family home, having been occupied
by him and his family since 1972, and is therefore
exempt from attachment.
The contention is not well-taken.
While Article 153 of the Family Code provides that
the family home is deemed constituted on a house
and lot from the time it is occupied as a family
residence, it does not mean that said article has a
retroactive effect such that all existing family
residences, petitioner's included, are deemed to
have been constituted as family homes at the time
of their occupation prior to the effectivity of the
Family Code and henceforth, are exempt from
execution for the payment of obligations incurred
before the effectivity of the Family Code on August
3, 1988 (Mondequillo vs. Breva, 185 SCRA 766).
Neither does Article 162 of said Code state that
the provisions of Chapter 2, Title V thereof have
retroactive effect. It simply means that all existing
family residences at the time of the effectivity of
the Family Code are considered family homes and
are prospectively entitled to the benefits accorded
to a family home under the Family Code
(Modequillo vs. Breva, supra). Since petitioner's
debt was incurred as early as November 25, 1987,
it preceded the effectivity of the Family Code. His
property is therefore not exempt from
attachment (Annex "O," Plaintiff's Position Paper
and Memorandum of Authorities, p. 78)." (pp. 5-6,
Decision; pp. 64-65, Rollo) (emphasis ours)
The applicable law, therefore. in the case at bar is still the Civil Code
where registration of the declaration of a family home is a
prerequisite. Nonetheless, the law provides certain instances where
the family home is not exempted from execution, forced sale or
attachment.
Art. 243 reads:
The family home extrajudicially formed shall be
exempt from execution, forced sale or
attachment, except:
(1) For nonpayment of taxes;
(2) For debts incurred before the declaration was
recorded in the Registry of Property;
(3) For debts secured by mortgages on the
premises before or after such record of the
declaration;
(4) For debts due to laborers, mechanics,
architects, builders, material-men and others who
have rendered service or furnished material for
the construction of the building. 12
The trial court found that on March 7, 1964, Pablo Taneo
constituted the house in question, erected on the land of Plutarco
Vacalares, as the family home. The instrument constituting the
family home was registered only on January 24, 1966. The money
judgment against Pablo Taneo was rendered on January 24, 1964.
Thus, at that time when the "debt" was incurred, the family home
was not yet constituted or even registered. Clearly, petitioners'
alleged family home, as constituted by their father is not exempt as
it falls under the exception of Article 243 (2).
Moreover, the constitution of the family home by Pablo Taneo is
even doubtful considering that such constitution did not comply
with the requirements of the law. The trial court found that the
house was erected not on the land which the Taneos owned but on
the land of one Plutarco Vacalares. By the very definition of the law
that the "family home is the dwelling house where a person and his
family resides and the land on which it is situated," 13 it is
understood that the house should be constructed on a
land not belonging to another. Apparently, the constitution of a
family home by Pablo Taneo in the instant case was merely an
afterthought in order to escape execution of their property but to
no avail.

WHEREFORE, the petition is DENIED for lack of merit.

SO ORDERED.
FIRST DIVISION
G.R. No. 86355 May 31, 1990
JOSE MODEQUILLO, petitioner,
vs.
HON. AUGUSTO V. BREVA FRANCISCO SALINAS, FLORIPER
ABELLAN-SALINAS, JUANITO CULAN-CULAN and DEPUTY SHERIFF
FERNANDO PLATA respondents.
Josefina Brandares-Almazan for petitioner.
ABC Law Offices for private respondents.
GANCAYCO, J.:
The issue in this petition is whether or not a final judgment of the
Court of Appeals in an action for damages may be satisfied by way
of execution of a family home constituted under the Family Code.
The facts are undisputed.
On January 29, 1988, a judgment was rendered by the Court of
Appeals in CA-G.R. CV No. 09218 entitled "Francisco Salinas, et al.
vs. Jose Modequillo, et al.," the dispositive part of which read as
follows:
WHEREFORE, the decision under appeal should be,
as it is hereby, reversed and set aside. Judgment is
hereby rendered finding the defendants-appellees
Jose Modequillo and Benito Malubay jointly and
severally liable to plaintiffs-appellants as
hereinbelow set forth. Accordingly, defendants-
appellees are ordered to pay jointly and severally
to:
1. Plaintiffs-appellants, the Salinas spouses:
a. the amount of P30,000.00 by way of
compensation for the death of their son Audie
Salinas;
b. P10,000.00 for the loss of earnings by reason of
the death of said Audie Salinas;
c. the sum of P5,000.00 as burial expenses of
Audie Salinas; and
d. the sum of P5,000.00 by way of moral damages.
2. Plaintiffs-appellants Culan-Culan:
a. the sum of P5,000.00 for hospitalization
expenses of Renato Culan- Culan; and
b. P5,000.00 for moral damages.
3. Both plaintiff-appellants Salinas and Culan-
Culan, P7,000.00 for attorney's fees and litigation
expenses.
All counterclaims and other claims are hereby
dismissed. 1
The said judgment having become final and executory, a writ of
execution was issued by the Regional Trial Court of Davao City to
satisfy the said judgment on the goods and chattels of the
defendants Jose Modequillo and Benito Malubay at Malalag, Davao
del Sur.
On July 7, 1988, the sheriff levied on a parcel of residential land
located at Poblacion Malalag, Davao del Sur containing an area of
600 square meters with a market value of P34,550.00 and assessed
value of P7,570.00 per Tax Declaration No. 87008-01359, registered
in the name of Jose Modequillo in the office of the Provincial
Assessor of Davao del Sur; and a parcel of agricultural land located
at Dalagbong Bulacan, Malalag, Davao del Sur containing an area of
3 hectares with a market value of P24,130.00 and assessed value of
P9,650.00 per Tax Declaration No. 87-08-01848 registered in the
name of Jose Modequillo in the office of the Provincial Assessor of
Davao del Sur. 2
A motion to quash and/or to set aside levy of execution was filed by
defendant Jose Modequillo alleging therein that the residential land
located at Poblacion Malalag is where the family home is built since
1969 prior to the commencement of this case and as such is exempt
from execution, forced sale or attachment under Articles 152 and
153 of the Family Code except for liabilities mentioned in Article 155
thereof, and that the judgment debt sought to be enforced against
the family home of defendant is not one of those enumerated under
Article 155 of the Family Code. As to the agricultural land although it
is declared in the name of defendant it is alleged to be still part of
the public land and the transfer in his favor by the original possessor
and applicant who was a member of a cultural minority was not
approved by the proper government agency. An opposition thereto
was filed by the plaintiffs.
In an order dated August 26, 1988, the trial court denied the
motion. A motion for reconsideration thereof was filed by
defendant and this was denied for lack of merit on September 2,
1988.
Hence, the herein petition for review on certiorari wherein it is
alleged that the trial court erred and acted in excess of its
jurisdiction in denying petitioner's motion to quash and/or to set
aside levy on the properties and in denying petitioner' motion for
reconsideration of the order dated August 26, 1988. Petitioner
contends that only a question of law is involved in this petition. He
asserts that the residential house and lot was first occupied as his
family residence in 1969 and was duly constituted as a family home
under the Family Code which took effect on August 4, 1988. Thus,
petitioner argues that the said residential house and lot is exempt
from payment of the obligation enumerated in Article 155 of the
Family Code; and that the decision in this case pertaining to
damages arising from a vehicular accident took place on March 16,
1976 and which became final in 1988 is not one of those instances
enumerated under Article 155 of the Family Code when the family
home may be levied upon and sold on execution. It is further alleged
that the trial court erred in holding that the said house and lot
became a family home only on August 4, 1988 when the Family
Code became effective, and that the Family Code cannot be
interpreted in such a way that all family residences are deemed to
have been constituted as family homes at the time of their
occupancy prior to the effectivity of the said Code and that they are
exempt from execution for the payment of obligations incurred
before the effectivity of said Code; and that it also erred when it
declared that Article 162 of the Family Code does not state that the
provisions of Chapter 2, Title V have a retroactive effect.
Articles 152 and 153 of the Family Code provide as follows:
Art. 152. The family home, constituted jointly by
the husband and the wife or by an unmarried head
of a family, is the dwelling house where they and
their family reside, and the land on which it is
situated.
Art. 153. The family home is deemed constituted
on a house and lot from the time it is occupied as
a family residence. From the time of its
constitution and so long as any of its beneficiaries
actually resides therein, the family home
continues to be such and is exempt from
execution, forced sale or attachment except as
hereinafter provided and to the extent of the
value allowed by law.
Under the Family Code, a family home is deemed constituted on a
house and lot from the time it is occupied as a family residence.
There is no need to constitute the same judicially or extrajudicially
as required in the Civil Code. If the family actually resides in the
premises, it is, therefore, a family home as contemplated by law.
Thus, the creditors should take the necessary precautions to protect
their interest before extending credit to the spouses or head of the
family who owns the home.
Article 155 of the Family Code also provides as follows:
Art. 155. The family home shall be exempt from
execution, forced sale or attachment except:
(1) For non-payment of taxes;
(2) For debts incurred prior to the constitution of
the family home;
(3) For debts secured by mortgages on the August 3, 1988. This case does not fall under the exemptions from
premises before or after such constitution; and execution provided in the Family Code.
(4) For debts due to laborers, mechanics, As to the agricultural land subject of the execution, the trial court
architects, builders, material men and others who correctly ruled that the levy to be made by the sheriff shall be on
have rendered service or furnished material for whatever rights the petitioner may have on the land.
the construction of the building.
WHEREFORE, the petition is DISMISSED for lack of merit. No
The exemption provided as aforestated is effective from the time of pronouncement as to costs.
the constitution of the family home as such, and lasts so long as any
of its beneficiaries actually resides therein. SO ORDERED.
In the present case, the residential house and lot of petitioner was
not constituted as a family home whether judicially or extrajudicially
under the Civil Code. It became a family home by operation of law
only under Article 153 of the Family Code. It is deemed constituted
as a family home upon the effectivity of the Family Code on August
3, 1988 not August 4, one year after its publication in the Manila
Chronicle on August 4, 1987 (1988 being a leap year).
The contention of petitioner that it should be considered a family
home from the time it was occupied by petitioner and his family in
1969 is not well- taken. Under Article 162 of the Family Code, it is
provided that "the provisions of this Chapter shall also govern
existing family residences insofar as said provisions are applicable."
It does not mean that Articles 152 and 153 of said Code have a
retroactive effect such that all existing family residences are
deemed to have been constituted as family homes at the time of
their occupation prior to the effectivity of the Family Code and are
exempt from execution for the payment of obligations incurred
before the effectivity of the Family Code. Article 162 simply means
that all existing family residences at the time of the effectivity of the
Family Code, are considered family homes and are prospectively
entitled to the benefits accorded to a family home under the Family
Code. Article 162 does not state that the provisions of Chapter 2,
Title V have a retroactive effect.
Is the family home of petitioner exempt from execution of the
money judgment aforecited No. The debt or liability which was the
basis of the judgment arose or was incurred at the time of the
vehicular accident on March 16, 1976 and the money judgment
arising therefrom was rendered by the appellate court on January
29, 1988. Both preceded the effectivity of the Family Code on
FIRST DIVISION
G.R. No. 170829 November 20, 2006
PERLA G. PATRICIO, Petitioner,
vs.
MARCELINO G. DARIO III and THE HONORABLE COURT OF
APPEALS, Second Division, Respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari under Rule 45 of the Rules of
Court seeks to annul and set aside the Resolution of the Court of
Appeals dated December 9, 20051 in CA-G.R. CV No. 80680, which
dismissed the complaint for partition filed by petitioner for being
contrary to law and evidence.
On July 5, 1987, Marcelino V. Dario died intestate. He was survived
by his wife, petitioner Perla G. Patricio and their two sons,
Marcelino Marc Dario and private respondent Marcelino G. Dario III.
Among the properties he left was a parcel of land with a residential
house and a pre-school building built thereon situated at 91 Oxford
corner Ermin Garcia Streets in Cubao, Quezon City, as evidenced by
Transfer Certificate of Title (TCT) No. RT-30731 (175992) of the
Quezon City Registry of Deeds, covering an area of seven hundred
fifty five (755) square meters, more or less.2
On August 10, 1987, petitioner, Marcelino Marc and private
respondent, extrajudicially settled the estate of Marcelino V. Dario.
Accordingly, TCT No. RT-30731 (175992) was cancelled and TCT No.
R-213963 was issued in the names of petitioner, private respondent
and Marcelino Marc.
Thereafter, petitioner and Marcelino Marc formally advised private
respondent of their intention to partition the subject property and
terminate the co-ownership. Private respondent refused to partition
the property hence petitioner and Marcelino Marc instituted an
action for partition before the Regional Trial Court of Quezon City
which was docketed as Civil Case No. Q-01-44038 and raffled to
Branch 78.
On October 3, 2002,3 the trial court ordered the partition of the
subject property in the following manner: Perla G. Patricio, 4/6;
Marcelino Marc G. Dario, 1/6; and Marcelino G. Dario III, 1/6. The
trial court also ordered the sale of the property by public auction
wherein all parties concerned may put up their bids. In case of
failure, the subject property should be distributed accordingly in the
aforestated manner.4
Private respondent filed a motion for reconsideration which was
denied by the trial court on August 11, 2003, 5 hence he appealed
before the Court of Appeals, which denied the same on October 19,
2005. However, upon a motion for reconsideration filed by private
respondent on December 9, 2005, the appellate court partially
reconsidered the October 19, 2005 Decision. In the now assailed
Resolution, the Court of Appeals dismissed the complaint for
partition filed by petitioner and Marcelino Marc for lack of merit. It
held that the family home should continue despite the death of one
or both spouses as long as there is a minor beneficiary thereof. The
heirs could not partition the property unless the court found
compelling reasons to rule otherwise. The appellate court also held
that the minor son of private respondent, who is a grandson of
spouses Marcelino V. Dario and Perla G. Patricio, was a minor
beneficiary of the family home.6
Hence, the instant petition on the following issues:
I.
THE HONORABLE COURT OF APPEALS PATENTLY ERRED IN
REVERSING ITS EARLIER DECISION OF OCTOBER 19, 2005
WHICH AFFIRMED IN TOTO THE DECISION OF THE TRIAL
COURT DATED 03 OCTOBER 2002 GRANTING THE
PARTITION AND SALE BY PUBLIC AUCTION OF THE SUBJECT
PROPERTY.
II.
COROLLARILY, THE HONORABLE COURT OF APPEALS
PATENTLY ERRED IN APPLYING ARTICLE 159 IN RELATION
TO ARTICLE 154 OF THE FAMILY CODE ON FAMILY HOME
INSTEAD OF ARTICLE 494 IN RELATION TO ARTICLES 495
AND 498 OF THE NEW CIVIL CODE ON CO-OWNERSHIP.7
The sole issue is whether partition of the family home is proper
where one of the co-owners refuse to accede to such partition on
the ground that a minor beneficiary still resides in the said home.
Private respondent claims that the subject property which is the
family home duly constituted by spouses Marcelino and Perla Dario
cannot be partitioned while a minor beneficiary is still living therein
namely, his 12-year-old son, who is the grandson of the decedent.
He argues that as long as the minor is living in the family home, the
same continues as such until the beneficiary becomes of age.
Private respondent insists that even after the expiration of ten years
from the date of death of Marcelino on July 5, 1987, i.e., even after
July 1997, the subject property continues to be considered as the
family home considering that his minor son, Marcelino Lorenzo R.
Dario IV, who is a beneficiary of the said family home, still resides in
the premises.
On the other hand, petitioner alleges that the subject property
remained as a family home of the surviving heirs of the late
Marcelino V. Dario only up to July 5, 1997, which was the 10th year
from the date of death of the decedent. Petitioner argues that the
brothers Marcelino Marc and private respondent Marcelino III were
already of age at the time of the death of their father, 8 hence there
is no more minor beneficiary to speak of.
The family home is a sacred symbol of family love and is the
repository of cherished memories that last during one’s lifetime. 9 It
is the dwelling house where husband and wife, or by an unmarried
head of a family, reside, including the land on which it is
situated.10 It is constituted jointly by the husband and the wife or by
an unmarried head of a family.11 The family home is deemed
constituted from the time it is occupied as a family residence. From
the time of its constitution and so long as any of its beneficiaries
actually resides therein, the family home continues to be such and is
exempt from execution, forced sale or attachment except as
hereinafter provided and to the extent of the value allowed by
law.12
The law explicitly provides that occupancy of the family home either
by the owner thereof or by "any of its beneficiaries" must be actual.
That which is "actual" is something real, or actually existing, as
opposed to something merely possible, or to something which is
presumptive or constructive. Actual occupancy, however, need not
be by the owner of the house specifically. Rather, the property may
be occupied by the "beneficiaries" enumerated in Article 154 of the
Family Code, which may include the in-laws where the family home
is constituted jointly by the husband and wife. But the law definitely
excludes maids and overseers. They are not the beneficiaries
contemplated by the Code.13
Article 154 of the Family Code enumerates who are the beneficiaries
of a family home: (1) The husband and wife, or an unmarried person
who is the head of a family; and (2) Their parents, ascendants,
descendants, brothers and sisters, whether the relationship be
legitimate or illegitimate, who are living in the family home and who
depend upon the head of the family for legal support.
To be a beneficiary of the family home, three requisites must
concur: (1) they must be among the relationships enumerated in
Art. 154 of the Family Code; (2) they live in the family home; and (3)
they are dependent for legal support upon the head of the family.
Moreover, Article 159 of the Family Code provides that the family
home shall continue despite the death of one or both spouses or of
the unmarried head of the family for a period of 10 years or for as
long as there is a minor beneficiary, and the heirs cannot partition
the same unless the court finds compelling reasons therefor. This
rule shall apply regardless of whoever owns the property or
constituted the family home.
Article 159 of the Family Code applies in situations where death
occurs to persons who constituted the family home.1âwphi1 Dr.
Arturo M. Tolentino comments on the effect of death of one or both
spouses or the unmarried head of a family on the continuing
existence of the family home:
Upon the death of the spouses or the unmarried family head who
constituted the family home, or of the spouse who consented to the
constitution of his or her separate property as family home, the
property will remain as family home for ten years or for as long as
there is a minor beneficiary living in it. If there is no more
beneficiary left at the time of death, we believe the family home
will be dissolved or cease, because there is no more reason for its
existence. If there are beneficiaries who survive living in the family
home, it will continue for ten years, unless at the expiration of the
ten years, there is still a minor beneficiary, in which case the family
home continues until that beneficiary becomes of age.
After these periods lapse, the property may be partitioned by the
heirs. May the heirs who are beneficiaries of the family home keep
it intact by not partitioning the property after the period provided
by this article? We believe that although the heirs will continue in
ownership by not partitioning the property, it will cease to be a
family home.14 (Emphasis supplied)
Prof. Ernesto L. Pineda further explains the import of Art. 159 in this
manner:
The family home shall continue to exist despite the death of one or
both spouses or of the unmarried head of the family. Thereafter, the
length of its continued existence is dependent upon whether there
is still a minor-beneficiary residing therein. For as long as there is
one beneficiary even if the head of the family or both spouses are
already dead, the family home will continue to exist (Arts. 153,
159). If there is no minor-beneficiary, it will subsist until 10 years
and within this period, the heirs cannot partition the same except
when there are compelling reasons which will justify the
partition. This rule applies regardless of whoever owns the property
or who constituted the family home.15 (Emphasis supplied)
The rule in Article 159 of the Family Code may thus be expressed in
this wise: If there are beneficiaries who survive and are living in the
family home, it will continue for 10 years, unless at the expiration of
10 years, there is still a minor beneficiary, in which case the family
home continues until that beneficiary becomes of age.
It may be deduced from the view of Dr. Tolentino that as a general
rule, the family home may be preserved for a minimum of 10 years
following the death of the spouses or the unmarried family head
who constituted the family home, or of the spouse who consented
to the constitution of his or her separate property as family home.
After 10 years and a minor beneficiary still lives therein, the family
home shall be preserved only until that minor beneficiary reaches
the age of majority. The intention of the law is to safeguard and
protect the interests of the minor beneficiaryuntil he reaches legal
age and would now be capable of supporting himself. However,
three requisites must concur before a minor beneficiary is entitled to
the benefits of Art. 159: (1) the relationship enumerated in Art. 154
of the Family Code; (2) they live in the family home, and (3) they are
dependent for legal support upon the head of the family.
Thus, the issue for resolution now is whether Marcelino Lorenzo R.
Dario IV, the minor son of private respondent, can be considered as
a beneficiary under Article 154 of the Family Code.
As to the first requisite, the beneficiaries of the family home are: (1)
The husband and wife, or an unmarried person who is the head of a
family; and (2) Their parents, ascendants, descendants, brothers and
sisters, whether the relationship be legitimate or illegitimate. The
term "descendants" contemplates all descendants of the person or
persons who constituted the family home without distinction;
hence, it must necessarily include the grandchildren and great
grandchildren of the spouses who constitute a family home. Ubi lex
non distinguit nec nos distinguire debemos. Where the law does not
distinguish, we should not distinguish. Thus, private respondent’s
minor son, who is also the grandchild of deceased Marcelino V.
Dario satisfies the first requisite.
As to the second requisite, minor beneficiaries must be actually
living in the family home to avail of the benefits derived from Art.
159. Marcelino Lorenzo R. Dario IV, also known as Ino, the son of
private respondent and grandson of the decedent Marcelino V.
Dario, has been living in the family home since 1994, or within 10
years from the death of the decedent, hence, he satisfies the second
requisite.
However, as to the third requisite, Marcelino Lorenzo R. Dario IV
cannot demand support from his paternal grandmother if he has
parents who are capable of supporting him. The liability for legal
support falls primarily on Marcelino Lorenzo R. Dario IV’s parents,
especially his father, herein private respondent who is the head of
his immediate family. The law first imposes the obligation of legal
support upon the shoulders of the parents, especially the father,
and only in their default is the obligation imposed on the
grandparents.
Marcelino Lorenzo R. Dario IV is dependent on legal support not
from his grandmother, but from his father.1âwphi1 Thus, despite
residing in the family home and his being a descendant of Marcelino
V. Dario, Marcelino Lorenzo R. Dario IV cannot be considered as
beneficiary contemplated under Article 154 because he did not
fulfill the third requisite of being dependent on his grandmother for
legal support. It is his father whom he is dependent on legal
support, and who must now establish his own family home separate
and distinct from that of his parents, being of legal age.
Legal support, also known as family support, is that which is
provided by law, comprising everything indispensable for
sustenance, dwelling, clothing, medical attendance, education and
transportation, in keeping with the financial capacity of the
family.16 Legal support has the following characteristics: (1) It is
personal, based on family ties which bind the obligor and the
obligee; (2) It is intransmissible; (3) It cannot be renounced; (4) It
cannot be compromised; (5) It is free from attachment or execution;
(6) It is reciprocal; (7) It is variable in amount.17
Professor Pineda is of the view that grandchildren cannot demand
support directly from their grandparents if they have parents
(ascendants of nearest degree) who are capable of supporting them.
This is so because we have to follow the order of support under Art.
199.18 We agree with this view.
The reasons behind Art. 199 as explained by Pineda and Tolentino:
the closer the relationship of the relatives, the stronger the tie that
binds them. Thus, the obligation to support under Art. 199 which
outlines the order of liability for support is imposed first upon the
shoulders of the closer relatives and only in their default is the
obligation moved to the next nearer relatives and so on.
There is no showing that private respondent is without means to
support his son; neither is there any evidence to prove that
petitioner, as the paternal grandmother, was willing to voluntarily
provide for her grandson’s legal support. On the contrary, herein
petitioner filed for the partition of the property which shows an
intention to dissolve the family home, since there is no more reason
for its existence after the 10-year period ended in 1997.
With this finding, there is no legal impediment to partition the
subject property.
The law does not encourage co-ownerships among individuals as
oftentimes it results in inequitable situations such as in the instant
case. Co-owners should be afforded every available opportunity to
divide their co-owned property to prevent these situations from
arising.
As we ruled in Santos v. Santos,19 no co-owner ought to be
compelled to stay in a co-ownership indefinitely, and may insist on
partition on the common property at any time. An action to demand
partition is imprescriptible or cannot be barred by laches. Each co-
owner may demand at any time the partition of the common
property.20
Since the parties were unable to agree on a partition, the court a
quo should have ordered a partition by commissioners pursuant to
Section 3, Rule 69 of the Rules of Court. Not more than three
competent and disinterested persons should be appointed as
commissioners to make the partition, commanding them to set off
to the plaintiff and to each party in interest such part and
proportion of the property as the court shall direct.
When it is made to appear to the commissioners that the real
estate, or a portion thereof, cannot be divided without great
prejudice to the interest of the parties, the court may order it
assigned to one of the parties willing to take the same, provided he
pays to the other parties such sum or sums of money as the
commissioners deem equitable, unless one of the parties interested
ask that the property be sold instead of being so assigned, in which
case the court shall order the commissioners to sell the real estate
at public sale, and the commissioners shall sell the same
accordingly.21
The partition of the subject property should be made in accordance
with the rule embodied in Art. 996 of the Civil Code. 22 Under the law
of intestate succession, if the widow and legitimate children survive,
the widow has the same share as that of each of the children.
However, since only one-half of the conjugal property which is
owned by the decedent is to be allocated to the legal and
compulsory heirs (the other half to be given exclusively to the
surviving spouse as her conjugal share of the property), the widow
will have the same share as each of her two surviving children.
Hence, the respective shares of the subject property, based on the
law on intestate succession are: (1) Perla Generosa Dario, 4/6; (2)
Marcelino Marc G. Dario II, 1/6 and (3) Marcelino G. Dario III, 1/6.
In Vda. de Daffon v. Court of Appeals,23 we held that an action for
partition is at once an action for declaration of co-ownership and for
segregation and conveyance of a determinate portion of the
properties involved. If the court after trial should find the existence
of co-ownership among the parties, the court may and should order
the partition of the properties in the same action.24
WHEREFORE, the petition is GRANTED. The Resolution of the Court
of Appeals in CA-G.R. CV No. 80680 dated December 9, 2005, is
REVERSED and SET ASIDE. The case is REMANDED to the Regional
Trial Court of Quezon City, Branch 78, who is directed to conduct a
PARTITION BY COMMISSIONERS and effect the actual physical
partition of the subject property, as well as the improvements that
lie therein, in the following manner: Perla G. Dario, 4/6; Marcelino
Marc G. Dario, 1/6 and Marcelino G. Dario III, 1/6. The trial court is
DIRECTED to appoint not more than three (3) competent and
disinterested persons, who should determine the technical metes
and bounds of the property and the proper share appertaining to
each heir, including the improvements, in accordance with Rule 69
of the Rules of Court. When it is made to the commissioners that
the real estate, or a portion thereof, cannot be divided without
great prejudice to the interest of the parties, the court a quo may
order it assigned to one of the parties willing to take the same,
provided he pays to the other parties such sum or sums of money as
the commissioners deem equitable, unless one of the parties
interested ask that the property be sold instead of being so
assigned, in which case the court shall order the commissioners to
sell the real estate at public sale, and the commissioners shall sell
the same accordingly, and thereafter distribute the proceeds of the
sale appertaining to the just share of each heir. No pronouncement
as to costs.
FIRST DIVISION WHEREFORE, prescinding from all the foregoing, the Court hereby Rogelia Calingasan Bell; or in the alternative to issue a new Transfer
declares: Certificate of Title under the same tenor;
G.R. No. 186322 July 8, 2015
1. That the sale of the subject house and lot under Deed of 2. The City Assessor of Batangas City is hereby directed to issue a tax
ENRICO S. EULOGIO and NATIVIDAD V. EULOGIO, Petitioners, Sale marked as Exhibit "F" is only an equitable mortgage in declaration covering the said subject property as family home for
vs. favor of the defendants Enrico Eulogio and Natividad the said plaintiffs and fourth party plaintiffs Paterno C. Bell and
PATERNO C. BELL, SR., ROGELIA CALINGASAN-BELL, PATERNO Eulogio. However, the mortgage cannot bind the property Rogelia Calingasan Bell; and
WILLIAM BELL, JR., FLORENCE FELICIA VICTORIA BELL, PATERNO in question for being violative of Chapter 2, Title 4 of the
FERDINAND BELL III, and PATERNO BENERAÑO BELL Family Code, its encumbrance not having been consented 3. Defendants Enrico Eulogio and Natividad Eulogio are ordered to
IV, Respondents. to in writing by a majority of the beneficiaries who are the pay the plaintiffs attorney’s fees and litigation expenses of
plaintiffs herein; 35,000.00 as the plaintiffs have been compelled to litigate to protect
DECISION their property right, and costs,3
2. The said equitable mortgage is deemed to be an
SERENO, CJ: unsecured mortgage [sic] for which the Spouses Paterno C. Both petitioners and respondent appealed to the CA, but the trial
Bell, Sr. and Rogelia Calingasan Bell as mortgagors are liable court’s Decision was affirmed en too. Spouses Bell later brought the
to the defendants-spouses Enrico Eulogio and Natividad case to this Court to question their liability to petitioners in the
This is a Petition for Review on Certiorari assailing the Court of
Eulogio in the amount of 1,000,000 plus interest of 12% per amount of 1 million plus interest. The Court, however, dismissed
Appeals (CA) Decision1 in CA-G.R. SP No. 87531 which granted the
annum. However, under the Fourth Party Complaint Sps. their Petition for failure to show any reversible error committed by
Petition for Certiorari filed by respondents and enjoined the
Paterno C. Bell, Sr. and Rogelia Calingasan Bell have the the CA.4 Thereafter, entry of judgment was made.5
execution sale of their family home for the satisfaction of the money
right of reimbursement from fourth party defendants
judgment awarded to petitioners in Civil Case No. 4581, and the
Nicolas Morana and Julieta Morana for whom their loan of On 9 June 2004 the RTC issued a Writ of Execution as a result of
Resolution2 which denied petitioners Motion for Reconsideration.
1,000,000 was secured by Sps. Paterno C. Bell, Sr. and which respondents’ property covered by the newly reconstituted
Rogelia Calingasan Bell. Accordingly, the fourth party Transfer Certificate of Title (TCT) No. 54208 [formerly RT-680
ANTECEDENT FACTS
defendants Nicolas Morana and Julieta Morana are hereby (5997)] was levied on execution. Upon motion by respondents, trial
ordered to reimburse Paterno C. Bell, Sr. and Rogelia court, on 31 August 2004, ordered the lifting of the writ of the
Respondents Paterno William Bell, Jr., Florence Felicia Victoria Bell, Calingasan Bell the loan of 1,000,00 plus interest of 12% execution on the ground that the property was a family home. 6
Paterno Ferdinand Bell III, and Paterno Benerano IV (the Bell per annum to be paid by the latter to defendants Enrico
siblings) are the unmarried children of respondent Spouses Paterno and Natividad Eulogio;
C. Bell and Rogelia Calingasan-Bell (Spouses Bell). In 1995, the Bell Petitioners filed a Motion for Reconsideration of the lifting of the
sibling lodged a Complaint for annulment of documents, writ of execution. Invoking Article 160 of the Family Code, they
3. The house and lot in question free from any and all posited that the current market value of the property exceeded the
reconveyance, quieting of title and damages against petitioner
encumbrances by virtue of said equitable mortgage or the statutory limit of 300,000 considering that it was located in a
Enrico S. Eulogio and Natividad Eulogio (the Eulogios). It was
purported sale; and commercial area, and that Spouses Bell had even sold it to them for
docketed as Civil Case No. 4581 at the Regional Trial Court (RTC) of
Batangas City, Branch 84. The complaint sought the annulment of 1million.7
4. The Deed of Sale (Exhibit "F") is null and void for being
the contract of sale executed by Spouses Bell over their 329-square-
contrary to law and public policy. The RTC, on 13 October 2004, set the case for hearing to determine
meter residential house and lot, as well the as the cancellation of
the title obtained by petitioners by virtue of the Deed. the present value of the family hoe of respondents. It also
Accordingly, (1) the Register of Deeds of Batangas City is hereby appointed a Board of Appraisers to conduct a study on the
ordered to cancel Transfer Certificate of Title No. T-131472 in the prevailing market value of their house and lot.8
The RTC granted respondents’ prayers, but declared Spouses Bell
name of defendants Enrico S. Eulogio and Natividad Eulogio and to
liable to petitioners in the amount of 1 million plus 12% interest per
re-constitute (sic) Transfer Certificate of Title No. RT-680-(5997) as Respondents sought reconsideration of the above directives and
annum. The dispositive portion of the Decision dated 15 July 1998
"family home" of the plaintiffs Florence Felicia Victoria C. Bell, asked the RTC to cite petitioners for contempt because of forum-
reads as follows:
Paterno William C. Bell Jr., Paterno Ferdinand C. Bell III, Paterno shopping.9 they argued that petitioners’ bid to determine the
Benerano C. Bell IV and fourth party plaintiffs Paterno C. Bell Sr. and
present value of the subject property was just a ploy to re-litigate an
issue that had long been settled with finality.
The RTC, however, denied the Motion for Reconsideration 10 of
respondents and directed the commissioners to canvass prospective
buyers of their house and lot.11
On 23 November 2004, respondents filed a Petition for Certiorari
and Injunction before the CA.12 where it was docketed as CA-G.R.
SP. No. 87531.
Subsequently, the RTC issued on 25 November 2004 an
Order13 dispensing with the valuation report of the commissioners
and directing the issuance of a writ of execution. Consequently,
respondents filed before the CA a Supplemental Petition with an
urgent prayer for a temporary restraining order. 14
The CA eventually enjoined.15 the execution sale set on 22
December 200416 by the RTC.
On 31 July 2008, the CA rendered it Decision granting respondent’s
Petition for Certiorari, but it rejected their theory that res judicata
had already set in.
The appellate court ruled that the RTC Decision, which had become
final and executory, only declared respondents’ house and lot as a
family home. Since the issue of whether it may be sold in execution
was incidental to the execution of the aforesaid Decision, there was
as yet no res judicata.
Still, the CA found that the trial court committed grave abuse of
discretion in ordering the execution sale of the subject family home
after finding its present value exceeded the statutory limit. The basis
for the valuation of a family home under Article 160, according to
the appellate court, is its actual value at the time of its constitution
and not the market/present value; therefore, the trial court’s order
was contrary to law.17
On 09 February 2009,18 the CA denied petitioners’ Motion for
Reconsideration. Hence, this Petition.
ISSUES
The issues to be resolved are: (1) whether petitioners are guilty of
forum-shopping; (2) whether a hearing to determine the value of
respondents’ family home for purposes of execution under Article
160 of the Family Code is barred under the principle of res judicata;
and (3) whether respondents’ family home may be sold on
execution under Article 160 of the Family Code.
THE COURT’S RULING
The Court denies the Petition for lack of merit.
Petitioners are not guilty of forum-shopping.
Forum shopping can be committed in three ways; (1) by filing
multiple cases based on the same cause of action and with the same
prayer, the previous case not having been resolved yet (where the
ground for dismissal is litis pendentia); (2) by filing multiple cases
based on the same cause of action and with the same prayer, the
previous case having been finally resolved (where the ground for
dismissal is res judicata); and (3) by filing multiple cases based on
the same cause of action but with different prayers, or by splitting
of causes of action (where the ground for dismissal is also either litis
pendentia or res judicata).19
The essence of forum shopping is the filing of multiple suits
involving the same parties for the same cause of action, either
simultaneously or successively, for the purpose of obtaining a
favorable judgment through means other than by appeal or
certiorari.20 Forum shopping does not apply to cases that arise from
an initiatory or original action that has been elevated by way of
appeal or certiorari to higher or appellate courts or authorities. This
is so because the issues in the appellate courts necessarily differ
from those in the lower court, and the appealed cases are but a
continuation of the original case and treated as only one case.21
Respondents contend that the Decision in Civil Case No. 4581, which
declared that property in dispute was a family home, had long
attained finality. Accordingly, respondents maintain that petitioners’
bid to re-litigate the present value of the property in the course of
the execution proceedings is barred by res judicata, and that
petitioners should be cited for contempt of court because of forum-
shopping.22
Recall that although the trial court had nullified the Deed of Sale
over respondents’ family home in Civil Case No. 4581 for lack of a
written consent from its beneficiaries as required under Article 158
of the Family Code,23 the court still recognized the validity of the
transaction as an unsecured loan. Hence, it declared Spouses Bell
liable to petitioners in the amount of 1 million plus 12% interest per
annum.
Petitioners’ bid to satisfy the above judgment cannot be considered
an act of forum shopping. Simply, the execution of a decision is just
the fruit and end of a suit and is very aptly called the life of the
law.24 It is not separate from the main case. Similarly, the filing of
the instant Petitions as a continuation of the execution proceedings
does not constitute forum shopping. Seeking a reversal of an
adverse judgment or order by appeal or certiorari does not
constitute forum shopping. Such remedies are sanctioned and
provided for the rules.25
Indeed, as will be presently discussed, the causes of action in the
main proceedings in Civil Case No. 4581 and the consequent
execution proceedings are identical. Suffice it to say, however, that
the danger of a multiplicity of suits upon one and the same cause of
action, which the judicial policy against forum shopping seeks to
prevent, does not exist in this case.
Re-litigating the issue of the value of respondents’ family home is
barred by res judicata.
Res judicata (meaning, a "matter adjudged") is a fundamental
principle of law that precludes parties from re-litigating issues
actually litigated and determined by a prior and final
judgment.26 Under the 1997 Rules of Court, there are two aspects of
res judicata, namely: bar by prior judgment.27 and conclusiveness of
judgment.28
There is "bar by prior judgment" when, as between the first case in
which the judgment has been rendered and the second case that is
sought to be barred, there is an identity of parties, subject matter,
and causes of action. In this instance, the judgment in the first case
constitutes an absolute bar to the second action. The judgment or
decree on the merits of the court of competent jurisdiction
concludes the litigation between the parties, as well as their privies,
and constitutes a bar to a new action or suit involving the same
cause of action before same or any other tribunal.29
On the other hand, there is "conclusiveness of judgment" where
there is an identity of parties in the first and second cases, but no
identity of causes of action. Under this rule, the first judgment is
conclusive only as to those matters actually and directly
controverted and determined and not as to matters merely involved
therein. Stated differently, any right, fact, or matter in issue directly
adjudicated or necessarily involved in the determination of an
action before a competent court in which judgment is rendered on
the merits is conclusively settled by the judgment therein and
cannot again be litigated between the parties and their privies
whether or not the claim, demand, purpose, or subject matter of
the two actions is the same.30
In this case, the trial court’s final decision in Civil Case No. 4581 bars
petitioners’ move to have the property is dispute levied on
execution.
There is no question that the main proceedings in Civil Case No.
4581 and the subsequent execution proceedings in Civil Case No.
4581 and the subsequent execution proceedings involved the same
parties31 and subject matter.32 for these reasons, respondents argue
that the execution sale of the property in dispute under Article 170
of the Family Code is barred by res judicata, since the trial court has
already determined that the value of the property fell within the
statutory limit.
The CA held that the trial court’s Decision which is indisputably final,
only settled the issue of whether the property in dispute was a
family home. The CA ruled thus:
We rule that there is no res judicata.
At the outset, let it be emphasized that the decision of the trial
court dated July 15, 1998, which has become final and executor,
only declared the subject property as a family home. As a matter of
fact, private respondents never questioned that such property is a
family home, and consequently, the issue as to whether or not the
property is family home is settled and res judicata lies only with
respect to this issue.
But the issue as to whether or not a family home could be the
subject of an execution sale was not resolved by the trial court. This
issue[was] raised only when the writ of execution was issued and
hence, [was not] resolved with finality. Thus, the issue before this
Court is whether or not the [f]amily [h]ome of petitioners under the
facts and circumstances of the case could be the subject of a writ
execution sold at public auction.33
The Court disagrees with the CA.
"Cause of action" is the act or omission by which a party violates the
right of another.34 It may be argued that the cause of action the
main proceedings was the sale of the property in dispute, while in
the execution proceedings it was the indebtedness of Spouses Bell
to petitioners.
The settled rule, however, is that identity of causes of action does
not mean absolute identity. Otherwise, a party could easily escape
the operation of res judicata by changing the form of the action or
the relief sought.35 The test to determine whether the causes of
action are identical is to ascertain whether the same evidence will
sustain both actions, or whether is an identity of the facts essential
to the maintenance of the two actions. If the same facts or evidence
would sustain both, the two actions considered the same, and a
judgment in the first case would be a bar to the subsequent action.
Hence, party cannot, by varying the form of action or adopting a
different method of presenting the case, escape the operation of
the principle that one and the same cause of action shall not be
twice litigated between the same parties or their privies. 36
Among several tests resorted to in ascertaining whether two suits
relate to a single or common cause of action are: (1) whether the
same evidence would support and sustain both the first and the
second causes of action and (2) whether the defenses in one case
may be used to substantiate the complaint in the other. Also
fundamental is the test for determining whether the cause of action
in the second case existed at the time of the filing of the first
complaint.37
Applying the above guidelines, the Court finds that the entirety of
Civil Case No. 4581 – including the bid of petitioners to execute the
money judgment awarded to them by the trial court – is founded on
a common cause of action. Records show that the sole evidence
submitted by petitioners during the execution proceedings was the
Deed of Sale, which the trial court had nullified in the main
proceedings. Concomitantly, the very sane defense raised by
petitioners in the main proceedings, i.e., that they had bought the
property from Spouses Bell for 1 million – was utilized to
substantiate the claim that the current value of respondents’ family
home was actually 1 million. In fact, the trial court’s order for
respondent’s family home to be levied on execution was solely
based on the price stated in the nullified Deed of Sale.
Res judicata applies, considering that the parties are litigating over
the same property. Moreover, the same contentions and evidence
advanced by the petitioners to substantiate their claim over
respondents’ family home have already been used to support their
arguments in the main proceedings.
Any lingering doubt on the application of res judicata to this case
should be put to rest by the trial court’s discussion of the nature and
alienability of the property in dispute, to wit;
The second issue is about the allegation of the plaintiffs that the
family home which has been constituted on the house and lot in
question is exempt from alienation and that its value does not
exceed 300,000. Paterno Bell, Sr. testified that the two-storey house
was built in 1947 and was made of wood and hollow blocks. He
inherited it in 1976 from his parents and has been living there with
his family. In 1976, when an extra- judicial settlement was made of
the estate of his parents, the fair market value of the house was
70,000.
City Assessor Rodezinda Pargas testified and presented Tax
Declaration and others, (Exhibit "J", Tax Declaration No. 005-047)
beginning 1985 showing that the subject lot with an area of 329 sq.
m. had a fair market value of 76,000.00 and the residential house
located thereon of 50,000.00, for a total value of 126,000.00. She
testified that during the prior years the assessed values were lower.
This shows that the limit of the value of 300,000.00 under Article
157, Title 5 of the Family Code has not been exceeded. The
testimonies of the plaintiffs who are children of Sps. Paterno Bell, Sr.
and Rogela Calingasan Bell show that they had lived in that house
together with their said parents. The Court therefore concludes that
the said house is a family home under Chapter 2, Title 5 of the
Family Code. Its alienation by the said Spouses without the written
consent of the majority of the children/plaintiffs is null and void for
being contrary to law and public policy as enunciated in Art. 158 of
the Family Code.38 [underscoring supplied]
The foregoing points plainly show that the issue of whether the
property in dispute exceeded the statutory limit of 300,000 has
already been determined with finality by the trial court. Its finding
necessarily meant that the property is exempt from execution.
Assuming for the sake of argument that causes of action in the main
proceedings and in the execution proceedings are different, the
parties are still barred from litigating the issue of whether
respondents’ family home may be sold on execution sale under the
principle of conclusiveness of judgment.
Respondents’ family home cannot be sold on execution under
Article 160 of Family Code.
Unquestionably, the family home is exempt from execution as
expressly provided for in Article 153 of the Family Code.39
It has been said that the family home is a real right that is
gratuitous, inalienable and free from attachment.40 The great
controlling purpose and policy of the Constitution is the protection
or the preservation of the homestead - the dwelling place. A
houseless, homeless population is a burden upon the energy,
industry, and morals of the community to which it belongs. No
greater calamity, not tainted with crime, can befall a family than to
be expelled from the roof under which it has been gathered and
sheltered.41 The family home cannot be seized by creditors except in
special cases.42
The nature and character of the property that debtors may claim to
be exempt, however, are determined by the exemption statute. The
exemption is limited to the particular kind of property of the specific
articles prescribed by the statute; the exemption cannot exceed the
statutory limit.43
Articles 155 and 160 of the Family Code specify the exceptions
mentioned in Article 153, to wit:
ARTICLE 155. the family home shall be exempt from execution,
forced sale or attachment except;
1. For nonpayment of taxes;
2. For debts incurred prior to the constitution of the family
home;
3. For debts secured by mortgages on the premises before
or after such constitution; and
4. For debts due to laborers, mechanics, architects,
builders, materialmen and others who have rendered
service or furnished material for the construction of the
building.
ARTICLE 160. when a creditor whose claims is not among those
mentioned in Article 155 obtains a judgment in his favor, and he has
reasonable grounds to believe that the family home is actually
worth more than the maximum amount fixed in Article 157, he may
apply to the court which rendered the judgment for an order
directing the sale of the property under execution. The court shall so
order if it finds that the actual value of the family home exceeds the
maximum amount allowed by law as of the time of its constitution.
If the increased actual value exceeds the maximum allowed in
Article 157 and results from subsequent voluntary improvements
introduced by the person or persons constituting the family home,
by the owners of the property, or by any of the beneficiaries, the
same rule and procedure shall apply.
At the execution sale, no bid below the value allowed for a family
home shall be considered. The proceeds shall be applied first to the
amount mentioned in Article 157, and then to the liabilities under
the judgment and the costs. The excess, is any, shall be delivered to
the judgment debtor.
Related to the foregoing is Article 157 of the Family Code, which
provides:
ARTICLE 157. the actual value of the family home shall not exceed,
at the same time of its constitution, the amount of three hundred
thousand pesos in urban areas, and two hundred thousand pesos in
rural areas, or such amounts as may hereafter be fixed by law.
In any event, if the value of the currency changes after the adoption
of this Code, the value most favorable for the constitutions of a
family home shall be the basis of evaluation.
For purposes of the Article, urban areas are deemed to include
chartered cities and municipalities whose annual income at least
equals that legally required for chartered cities. All others are
deemed to be rural area. [underscoring supplied]
The minutes of the deliberation by the drafters of Family Code on
Article 160 are enlightening, to wit:
Justice Puno inquired if the above Article [160] is still necessary. In
reply, Judge Diy opined that the above Article is intended to cover a
situation where the family home is already worth 500,000 or IM.
Justice Reyes stated that it is possible that a family home, originally
valued at 300,000, later appreciated to almost IM because of
improvements made, like roads and plazas. Justice Caguioa,
however, made a distinction between voluntary and involuntary
improvements in the sense that if the value of the family home
exceeded the maximum amount because of voluntary
improvements by the one establishing the family home, the Article
will apply; but if it is through an involuntary improvement, like
conversion into a residential area or the establishment of roads and
other facilities, the one establishing the family home should not be
punished by making his home liable to creditors. He suggested that
the matter be clarified in the provision.
Prof. Bautista objected to the phrase "is worth" since if they will
specify that the family home is worth more than the maximum
amount at the time it was constituted, they will avoid the suit
because the creditor will be given proper warning. Justice Puno
opined that this is a question of fact. Justice Caguioa added that,
under the second sentence, there will be a preliminary
determination as to whether the family home exceeds the
maximum amount allowed by the law.
Justice Caguia accordingly modified the last sentence as follows:
If the excess in actual value over that allowed in Article 157 is due to
subsequent voluntary improvements by the person or persons
constituting the family home or by the owner or owners of the
property, the same rules and procedure shall apply.
Prof. Bautista objected to the above provision, because it will in
effect penalize the owner for improving the family home. On the
other hand, Justice Puno opined that the provision covers only the
excess in actual value over that allowed by law. Judge Diy added
that the owner may improve the family home up to 300,000. Justice
Caguioa stated that without the above provision, one can borrow
money, put it all on improvement of the family home even beyond
the maximum value of a family home and, thereby, exempt it from
levy on the part of the creditor. He added that anyway, if one
voluntarily improves his family home out of his money, nobody can
complain because there are no creditors.
Justice Puno posed the question: what is "due to the subsequent
improvement?" is it the "excess" or is it the "increase", or is it the
"increase", which constitutes the "excess"? in reply, Justice Reyes
opined that it is the "increase" which constituted the "excess".
Justice Puno, Justice Reyes and Justice Caguioa modified the last
sentence as follows:
If the increase in actual value exceeds that maximum allowed in
Article 157 and results from subsequent voluntary improvements
introduced by the person or persons constituting the family home or
by the owner or owners of the property, the same rule and
procedure shall apply.
Prof. Bautista commented that the phrase "increase in actual value"
does not include the original value. Justice Puno suggested that they
just say "increased actual value", which the Committee approved.44
To summarize, the exemption of the family home from execution,
forced sale or attachment is limited to 300,000 in urban areas and
200,000 in rural areas, unless those maximum values are adjusted
by law. If it is shown, though, that those amounts do not match the
present value of the peso because of currency fluctuations, the
amount of exemption shall be based on the value that is most
favorable to the constitution of a family home. Any amount in
excess of those limits can be applied to the payment of any of the
obligations specified in Articles 155 and 160.
Any subsequent improvement or enlargement of the family home
by the persons constituting it, its owners, or any of its beneficiaries
will still be exempt from execution, forced sale or attachment
provided the following conditions obtain: (a) the actual value of the
property at the time of its constitution has been determined to fall
below the statutory limit; and (b) the improvement or enlargement
does not result in an increase in its value exceeding the statutory
limit.45 Otherwise, the family home can be the subject of a forced
sale, and any amount above the statutory limit is applicable to the
obligations under Articles 155 and 160.
Certainly, the humane considerations for which the law surrounds
the family home with immunities from levy do not include the intent
to enable debtors to thwart the just claims of their creditors. 46
Petitioners maintain that this case falls under the exceptions to the
exemption of the family home from execution or forced sale. They
claim that the actual value of respondents’ family home exceeds the
300,000 limit in urban areas. This fact is supposedly shown by the
Deed of Sale whereby private respondents agreed to sell the
property for 1 million way back in 1995. Therefore, the RTC only
properly ordered the execution sale of the property under Article
160 to satisfy the money judgment awarded to them in Civil Case
No. 4581.47
As earlier discussed, it has been judicially determined with finality
that the property in dispute is a family home, and that its value at
the time of its constitution was within the statutory limit. Moreover,
respondents have timely claimed the exemption of the property
from execution.48 On the other hand, there is no question that the
money judgment awarded to petitioners falls under the ambit of
Article 160.
Notwithstanding petitioners’ right to enforce the trial court’s money
judgment, however, they cannot obtain its satisfaction at the
expense of respondents’ rights over their family home. It is
axiomatic that those asserting the protection of an exception from
an exemption must bring themselves clearly within the terms of the
exception and satisfy any statutory requirement for its
enforcement.49
To warrant the execution sale of respondents’ family home under
Article 160, petitioners needed to establish these facts: (1) there
was an increase in its actual value; (2) the increase resulted from
voluntary improvements on the property introduced by the persons
constituting the family home, its owners or any of its beneficiaries;
and (3) the increased actual value exceeded the maximum allowed
under Article 157.
During the execution proceedings, none of those facts was alleged –
much less proven – by petitioners.1âwphi1 The sole evidence
presented was the Deed of Sale, but the trial court had already
determined with finality that the contract was null, and that the
actual transaction was an equitable mortgage. Evidently, when
petitioners and Spouses Bells executed the Deed of Sale in 1990, the
price stated therein was not the actual value of the property in
dispute.
The court thus agrees with the CA’s conclusion that the trial court
committed grave abuse of discretion in ordering the sale on
execution of the property in dispute under Article 160. The trial
court had already determined with finality that the property was a
family home, and there was no proof that is value had increased
beyond the statutory limit due to voluntary improvements by
respondents. Yet, it ordered the execution sale of the property.
There is grave abuse of discretion when one acts in a capricious,
whimsical, arbitrary or despotic manner in the exercise of one’s
judgment, as in this case in which the assailed order is bereft of any
factual or legal justification.50
WHEREFORE, the Petitioner for Review on Certiorari is hereby
DENIED for lack of merit. Accordingly, the Decision of the Court of
Appeals in CA-GG.R SP No. 87531, enjoining the trial court from
proceeding with the sale of the family home of respondents, is
AFFIRMED.
SO ORDERED.
THIRD DIVISION
G.R. No. 142877 October 2, 2001
JINKIE CHRISTIE A. DE JESUS and JACQUELINE A. DE JESUS minors,
represented by their mother, CAROLINA A. DE JESUS, petitioners,
vs.
THE ESTATE OF DECEDENT JUAN GAMBOA DIZON, ANGELINA V.
DIZON, CARLOS DIZON, FELIFE DIZON, JUAN DIZON, JR. and
MARYLIN DIZON and as proper parties: FORMS MEDIA CORP.,
QUAD MANAGEMENT CORP., FILIPINAS PAPER SALES CO., INC. and
AMITY CONSTRUCTION & INDUSTRIAL ENTERPRISES,
INC. respondents.
VITUG, J.:
The petitioner involves the case of the illegitimate children who,
having been born in lawful wedlock, claim to be the illegitimate
scions of the decedent in order to enforce their respective shares in
the latter's estate under the rules of succession.
Danilo B. de Jesus and Carolina Aves de Jesus got married on 23
August 1964. It was during this marriage that Jacqueline A. de Jesus
and Jinkie Christie A. de Jesus, herein petitioners, were born, the
former on 01 March 1979 and the latter on 06 July 1982.
In a notarized document, dated 07 June 1991, Juan G.
Dizon acknowledged Jacqueline and Jinkie de Jesus as being his own
illegitimate children by Carolina Aves de Jesus. Juan G. Dizon died
intestate on 12 March 1992, leaving behind considerable assets
consisting of shares of stock in various corporations and some real
property. It was on the strength of his notarized acknowledgement
that petitioners filed a complaint on 01 July 1993 for "Partition with
Inventory and Accounting" of the Dizon estate with the Regional
Trial Court, Branch 88, of Quezon City.
Respondent, the surviving spouse and legitimate children of the
decedent Juan G. Dizon, including the corporations of which the
deceased was a stockholder, sought the dismissal of the case,
arguing that the complaint, even while denominated as being one
for partition, would nevertheless call for altering the status of
petitioners from being the legitimate children of the spouses Danilo
de Jesus and Carolina de Jesus to instead be the illegitimate children
of Carolina de Jesus and deceased Juan Dizon. The trial court
denied, due to lack of merit, the motion to dismiss and subsequent
motion for reconsideration on, respectively, 13 September 1993 and
15 February 1994. Respondents assailed the denial of said motions
before the Court of Appeals.
On 20 May 1994, the appellate court upheld the decision of the
lower court and ordered the case to be remanded to the trial court
for further proceedings. It ruled that the veracity of the conflicting
assertions should be threshed out at the trial considering that the
birth certificates presented by respondents appeared to have
effectively contradicted petitioners' allegation of
illegitimacy.1âwphi1.nêt
On 03 January 2000, long after submitting their answer, pre-trial
brief and several other motions, respondents filed an omnibus
motion, again praying for the dismissal of the complaint on the
ground that the action instituted was, in fact, made to compel the
recognition of petitioners as being the illegitimate children of
decedent Juan G. Dizon and that the partition sought was merely an
ulterior relief once petitioners would have been able the establish
their status as such heirs. It was contended, in fine that an action for
partition was not an appropriate forum to likewise ascertain the
question of paternity and filiation, an issue that could only be taken
up in an independent suit or proceeding.
Finding credence in the argument of respondents, the trial court,
ultimately, dismissed the complaint of petitioners for lack of cause
of action and for being improper.1 It decreed that the declaration of
heirship could only be made in a special proceeding in asmuch as
petitioners were seeking the establishment of a status or right.
Petitioners assail the foregoing order of the trial court in the instant
petition for review on certiorari. Basically, petitioners maintain that
their recognition as being illegitimate children of the decedent,
embodied in an authentic writing, is in itself sufficient to establish
their status as such and does not require a separate action for
judicial approval following the doctrine enunciated in Divinagracia
vs. Bellosillo.2
In the comment, respondents submit that the rule
in Divinagracia being relied by petitioners is inapplicable to the case
because there has been no attempt to impugn legitimate filiation
in Divinagracia. In praying for the affirmance of dismissal of the
complaint, respondents count on the case of Sayson vs. Court of
Appeals,3 which has ruled that the issue of legitimacy cannot be
questioned in a complaint for partition and accounting but must be
seasonably brought up in direct action frontally addressing the
issue.
The controversy between the parties has been pending for much
too long, and it is time that this matter draws to a close.
The filiation of illegitimate children, like legitimate children, is
established by (1) the record of birth appearing the civil register or a
final judgement; or (2) an admission of legitimate filiation in a public
document or a private handwritten and signed by the parent
concerned. In the absence thereof, filiation shall be proved by (1)
the open and continuos possession of the status of a legitimate
child; or (2) any other means allowed by the Rules of Court and
special laws.4 The due recognition of an illegitimate child in a
record of birth, a will, a statement before a court or record, or in
any authentic writing is, in itself, a consummated act of
acknowledgement of the child, and no further court action is
required.5 In fact, any writing is treated not just a ground for
compulsory recognition; it is in itself voluntary recognition that does
not require a separate action for judicial approval. 6 Where, instead,
a claim for recognition is predicted on other evidence merely
tending to prove paternity, i.e., outside of a record of birth, a will,
a statement before a court or record or an authentic writing,
judicial action within the applicable statue of limitations is
essential in order to establish the child's acknowledgement. 7
A scrutiny of the records would show that petitioners were born
during the marriage of their parents. The certificates of live would
also identify Danilo de Jesus as being their father.
There is perhaps no presumption of the law more firmly established
and founded on sounder morality and more convincing reason than
the presumption that children born in wedlock are legitimate.8 this
presumption indeed becomes conclusive in the absence of proof
that there is physical impossibility of access between the spouses
during the first 120 days of the 300 days which immediately
precedes the birth of the child due to (a) the physical incapacity of
the husband to have sexual intercourse with his wife; (b) the fact
the husband and wife are living separately in such a way that sexual
intercourse is not possible; or (c) serious illness of the husband, contested in a direct suit specifically brought for that
which absolutely prevents sexual intercourse.9 Quite remarkably, purpose.16 Indeed, a child so born in such wedlock shall be
upon the expiration of the periods set forth in Article 170, 10 and in considered legitimate although the mother may have declared
proper cases Article 171,11 of the Family Code (which took effect on against its legitimacy or may have been sentenced as having been
03 August 1988), the action to impugn the legitimacy of a child an adulteress.17
would no longer be legally feasible and the status conferred by the
presumption becomes fixed and unassailable,12 WHEREFORE, the foregoing disquisitions considered, the instant
petition is DENIED. No costs.
Succinctly, in an attempt to establish their illegitimate filiation to the
late Juan G. Dizon, petitioners, in effect, would impugn their SO ORDERED.
legitimate status as being children of Danilo de Jesus and Carolina
Aves de Jesus. This step cannot be aptly done because the law itself
establishes the legitimacy of children conceived or born during the
marriage of the parents. The presumption of legitimacy fixes a civil
status for the child born in wedlock, and only the father, 13 or in
exceptional instances the latter's heirs,14 can contest in an
appropriate action the legitimacy of a child born to his wife. Thus,
it is only when the legitimacy of a child has been successfully
impugned that the paternity of the husband can be rejected.

Respondents correctly argued that petitioners hardly could find

succor in Divinagracia. In said case, the Supreme Court remanded to
the trial court for further proceedings the action for partition filed
by an illegitimate child who had claimed to be an acknowledgement
spurious child by virtue of a private document. Signed by the
acknowledging parent, evidencing such recognition. It was not a
case of legitimate children asserting to be somebody else's
illegitimate children. Petitioners totally ignored the fact that it was
not for them, given the attendant circumstances particularly, to
declare that they could not have been the legitimate children,
clearly opposed to the entries in their respective birth certificates,
of Danilo and Carolina de Jesus.

The rule that the written acknowledgement made by the deceased

Juan G. Dizon establishes petitioners' alleged illegitimate filiation to
the decedent cannot be validly invoked to be of any relevance in
this instance. This issue, i.e whether petitioners are indeed the
acknowledge illegitimate offsprings of the decedent, cannot be aptly
adjudicated without an action having been first instituted to impugn
their legitimacy as being the children of Danilo B. de Jesus and
Carolina Aves de Jesus born in lawful wedlock. Jurisprudence is
strongly settled that the paramount declaration of legitimacy by law
cannot be attacked collaterally,15 one that can only be repudiated or
FIRST DIVISION
G.R. No. 165546 February 27, 2006
SOCIAL SECURITY SYSTEM, Petitioner,
vs.
ROSANNA H. AGUAS, JANET H. AGUAS, and minor JEYLNN H.
AGUAS, represented by her Legal Guardian, ROSANNA H.
AGUAS, Respondents.
DECISION
CALLEJO, SR., J.:
Before us is a petition for review on certiorari of the Decision 1 of the
Court of Appeals (CA) in CA-G.R. SP No. 66531 and its Resolution
denying the motion for reconsideration thereof.
The antecedents are as follows:
Pablo Aguas, a member of the Social Security System (SSS) and a
pensioner, died on December 8, 1996. Pablo’s surviving spouse,
Rosanna H. Aguas, filed a claim with the SSS for death benefits on
December 13, 1996. Rosanna indicated in her claim that Pablo was
likewise survived by his minor child, Jeylnn, who was born on
October 29, 1991.2 Her claim for monthly pension was settled on
February 13, 1997.3
Sometime in April 1997, the SSS received a sworn letter4 dated April
2, 1997 from Leticia Aguas-Macapinlac, Pablo’s sister, contesting
Rosanna’s claim for death benefits. She alleged that Rosanna
abandoned the family abode approximately more than six years
before, and lived with another man on whom she has been
dependent for support. She further averred that Pablo had no legal
children with Rosanna, but that the latter had several children with
a certain Romeo dela Peña. In support of her allegation, Leticia
enclosed a notarized copy of the original birth certificate5 of one
Jefren H. dela Peña, showing that the latter was born on November
15, 1996 to Rosanna Y. Hernandez and Romeo C. dela Peña, and
that the two were married on November 1, 1990.
As a result, the SSS suspended the payment of Rosanna and Jeylnn’s
monthly pension in September 1997. It also conducted an
investigation to verify Leticia’s allegations. In a bearing Pablo’s signature as Jeylnn’s father. They asserted that
Memorandum6 dated November 18, 1997, the Social Security
Officer who conducted the investigation reported that, based on an
interview with Mariquita D. Dizon, Pablo’s first cousin and neighbor,
and Jessie Gonzales (also a neighbor). She learned that the deceased
had no legal children with Rosanna; Jenelyn7 and Jefren were
Rosanna’s children with one Romeo C. dela Peña; and Rosanna left
the deceased six years before his death and lived with Romeo while
she was still pregnant with Jenelyn, who was born on October 29,
1991. Mariquita also confirmed that Pablo was not capable of
having a child as he was under treatment.
On the basis of the report and an alleged confirmation by a certain
Dr. Manuel Macapinlac that Pablo was infertile, the SSS denied
Rosanna’s request to resume the payment of their pensions. She
was advised to refund to the SSS within 30 days the amount of
₱10,350.00 representing the total death benefits released to her
and Jenelyn from December 1996 to August 1997 at ₱1,150.00 per
month.8
Rosanna and Jeylnn, through counsel, requested for a
reconsideration of the said decision. 9 However, in its Letter dated
February 6, 1998, the SSS denied the claim.10
This prompted Rosanna and Jeylnn to file a claim/petition for the
Restoration/Payment of Pensions with the Social Security
Commission (SSC) on February 20, 1998.11 Janet H. Aguas, who also
claimed to be the child of the deceased and Rosanna, now joined
them as claimant. The case was docketed as SSC Case No. 3-14769-
98.
The claimants appended to their petition, among others,
photocopies of the following: (1) Pablo and Rosanna’s marriage
certificate; (2) Janet’s certificate of live birth; (3) Jeylnn’s certificate
of live birth; and (4) Pablo’s certificate of death.
In its Answer, the SSS averred that, based on the sworn testimonies
and documentary evidence showing the disqualification of the
petitioners as primary beneficiaries, the claims were barren of
factual and legal basis; as such, it was justified in denying their
claims.12
In their Position Paper, the claimants averred that Jeylnn was a
legitimate child of Pablo as evidenced by her birth certificate
Rosanna never left Pablo and that they lived together as husband
and wife under one roof. In support thereof, they attached a Joint
Affidavit13 executed by their neighbors, Vivencia Turla and Carmelita
Yangu, where they declared that Rosanna and Pablo lived together
as husband and wife until the latter’s death. In Janet’s birth
certificate, which was registered in the Civil Registry of San
Fernando, it appears that her father was Pablo and her mother was
Rosanna. As to the alleged infertility of Pablo, the claimants averred
that Dr. Macapinlac denied giving the opinion precisely because he
was not an expert on such matters, and that he treated the
deceased only for tuberculosis. The claimant likewise claimed that
the information the SSS gathered from the doctor was privileged
communication.14
In compliance with the SSC’s order, the SSS secured Confirmation
Reports15 signed by clerks from the corresponding civil registers
confirming (1) the fact of marriage between Pablo and Rosanna on
December 4, 1977; (2) the fact of Jefren dela Peña’s birth on
November 15, 1996; (3) the fact of Jeylnn’s birth on October 29,
1991; and (4) the fact of Pablo’s death on December 8, 1996.
The SSC decided to set the case for hearing. It also directed the SSS
to verify the authenticity of Pablo’s signature as appearing on
Jeylnn’s birth certificate from his claim records, particularly his SSS
Form E-1 and retirement benefit application.16 The SSS complied
with said directive and manifested to the SSC that, based on the
laboratory analysis conducted, Pablo’s signature in the birth
certificate was made by the same person who signed the member’s
record and other similar documents submitted by Pablo. 17
The SSC then summoned Vivencia Turla, Carmelita Yangu and Leticia
Aguas-Macapinlac for clarificatory questions with regard to their
respective sworn affidavits.18 Vivencia testified that she had known
Pablo and Rosanna for more than 30 years already; the couple were
married and lived in Macabacle, Dolores, San Fernando, Pampanga;
she was a former neighbor of the spouses, but four years after their
marriage, she (Vivencia) and her family moved to Sto. Niño
Triangulo, San Fernando, Pampanga; she would often visit the two,
especially during Christmas or fiestas; the spouses’ real child was
Jeylnn; Janet was only an adopted child; the spouse later transferred
residence, not far from their old house, and Janet, together with her
husband and son, remained in the old house.19
On the other hand, Carmelita testified that she had been a neighbor
of Pablo and Rosanna for 15 years and that, up to the present,
Rosanna and her children, Janet, Jeylnn and Jefren, were still her
neighbors; Janet and Jeylnn were the children of Pablo and Rosanna
but she did not know whose child Jefren is. 20
According to Leticia, Janet was not the real child of Pablo and
Rosanna; she was just taken in by the spouses because for a long
time they could not have children;21 however, there were no legal
papers on Janet’s adoption.22Later on, Rosanna got pregnant with
Jeylnn; after the latter’s baptism, there was a commotion at the
house because Romeo dela Peña was claiming that he was the
father of the child and he got mad because the child was named
after Pablo; the latter also got mad and even attempted to shoot
Rosanna; he drove them away from the house; since then, Pablo
and Rosanna separated;23 she knew about this because at that time
their mother was sick, and she would often visit her at their
ancestral home, where Pablo and Rosanna were also staying;
Rosanna was no longer living in their ancestral home but Janet
resided therein; she did not know where Rosanna was staying now
but she knew that the latter and Romeo dela Peña were still living
together.24
Subsequently, Mariquita Dizon and Jessie Gonzales were also
summoned for clarificatory questions.25 During the hearing,
Mariquita brought with her photocopies of two baptismal
certificates: that of Jeylnn Aguas,26 child of Pablo Aguas and
Rosanna Hernandez born on October 29, 1991, and that of Jenelyn
H. dela Peña,27 child of Romeo dela Peña and Rosanna Hernandez,
born on January 29, 1992.
On March 14, 2001, the SSC rendered a decision denying the claims
for lack of merit and ordering Rosanna to immediately refund to the
SSS the amount of ₱10,350.00 erroneously paid to her and Jeylnn as
primary beneficiaries of the deceased. The SSC likewise directed the
SSS to pay the death benefit to qualified secondary beneficiaries of
the deceased, and in their absence, to his legal heirs. 28
The SSC ruled that Rosanna was no longer qualified as primary
beneficiary, it appearing that she had contracted marriage with
Romeo dela Peña during the subsistence of her marriage to Pablo.
The SSC based its conclusion on the birth certificate of Jefren dela
Peña stating that his mother, Rosanna, and father, Romeo dela
Peña, were married on November 1, 1990. The SSC declared that
Rosanna had a child with Romeo dela Peña while she was still
married to Pablo (as evidenced by the baptismal certificate of
Jenelyn H. dela Peña showing that she was the child of Rosanna
Hernandez and Romeo dela Peña and that she was born on January
29, 1992). The SSC concluded that Rosanna was no longer entitled
to support from Pablo prior to his death because of her act of
adultery. As for Jeylnn, the SSC ruled that, even if her birth
certificate was signed by Pablo as her father, there was more
compelling evidence that Jeylnn was not his legitimate child. The
SSC deduced from the records that Jeylnn and Jenelyn was one and
the same person and concluded, based on the latter’s baptismal
certificate, that she was the daughter of Rosanna and Romeo dela
Peña. It also gave credence to the testimonies of Leticia and
Mariquita that Jeylnn was the child of Rosanna and Romeo dela
Peña. As for Janet, the SSC relied on Leticia’s declaration that she
was only adopted by Pablo and Rosanna.29
The claimants filed a motion for reconsideration of the said decision
but their motion was denied by the SSC for lack of merit and for
having been filed out of time.30 The claimants then elevated the
case to the CA via a petition for review under Rule 43 of the Rules of
Court.
On September 9, 2003, the CA rendered a decision in favor of
petitioners. The fallo of the decision reads:
WHEREFORE, the resolution and order appealed from are hereby
REVERSED and SET ASIDE, and a new one is entered DECLARING
petitioners as ENTITLED to the SSS benefits accruing from the death
of Pablo Aguas. The case is hereby REMANDED to public respondent
for purposes of computing the benefits that may have accrued in
favor of petitioners after the same was cut and suspended in
September 1997.
SO ORDERED.31
In so ruling, the CA relied on the birth certificates of Janet and
Jeylnn showing that they were the children of the deceased.
According to the appellate court, for judicial purposes, these records
were binding upon the parties, including the SSS. These entries
made in public documents may only be challenged through
adversarial proceedings in courts of law, and may not be altered by
mere testimonies of witnesses to the contrary. As for Rosanna, the
CA found no evidence to show that she ceased to receive support
from Pablo before he died. Rosanna’s alleged affair with Romeo dela
Peña was not properly proven. In any case, even if Rosanna married
Romeo dela Peña during her marriage to Pablo, the same would
have been a void marriage; it would not have ipso facto made her
not dependent for support upon Pablo and negate the presumption
that, as the surviving spouse, she is entitled to support from her
husband.32
The SSS filed a motion for reconsideration of the decision, which the
CA denied for lack of merit.33 Hence, this petition.
Petitioner seeks a reversal of the decision of the appellate court,
contending that it
I
GRAVELY ERRED IN HOLDING THAT ROSANNA AGUAS IS
ACTUALLY DEPENDENT FOR SUPPORT UPON THE MEMBER
DURING HIS LIFETIME TO QUALIFY AS PRIMARY
BENEFICIARY WITHIN THE INTENDMENT OF SECTION 8(e),
IN RELATION TO SECTION (k) OF THE SSS LAW, AS
AMENDED.
II
ERRED IN HOLDING THAT JANET AGUAS AND JEYLNN
AGUAS ARE ENTITLED TO THE PENSION BENEFIT ACCRUING
FROM THE DEATH OF PABLO AGUAS.34
Petitioner invokes Section 8 of Republic Act No. 1161, as amended
by Presidential Decree No. 735, which defines a dependent spouse
as "the legitimate spouse dependent for support upon the
employee." According to petitioner, Rosanna forfeited her right to
be supported by Pablo when she engaged in an intimate and illicit
relationship with Romeo dela Peña and married the latter during her
marriage to Pablo. Such act constitutes abandonment, which
divested her of the right to receive support from her husband. It
asserts that her act of adultery is evident from the birth certificate
of Jefren H. dela Peña showing that he was born on November 15,
1996 to Rosanna and Romeo dela Peña. Petitioner submits that
Rosanna cannot be considered as a dependent spouse of Pablo;
consequently, she is not a primary beneficiary.35
As for Janet and Jeylnn, petitioner maintains that they are not
entitled to the pension because, based on the evidence on record,
particularly the testimonies of the witnesses, they are not the
legitimate children of Pablo. It argues that, in the exercise of its
quasi-judicial authority under Section 5(a) of the Social Security Act,
the SSC can pass upon the legitimacy of respondents’ relationship
with the member to determine whether they are entitled to the
benefits, even without correcting their birth certificates. 36
Respondents, for their part, assert that petitioner failed to prove
that Rosanna committed acts of adultery or that she married
another man after the death of her husband. They contend that
Janet and Jeylnn’s legitimacy may be impugned only on the grounds
stated in Article 166 of the Family Code, none of which were proven
in this case.37
The issue to be resolved in this case is whether Rosanna, Jeylnn and
Janet are entitled to the SSS death benefits accruing from the death
of Pablo.
The petition is partly meritorious.
The general rule is that only questions of law may be raised by the
parties and passed upon by the Court in petitions for review under
Rule 45 of the Rules of Court. 38 In an appeal via certiorari, the Court
may not review the factual findings of the CA.39 It is not the Court’s
function under Rule 45 to review, examine, and evaluate or weigh
the probative value of the evidence presented.40 However, the
Court may review findings of facts in some instances, such as, when
the judgment is based on a misapprehension of facts, when the
findings of the CA are contrary to those of the trial court or quasi-
judicial agency, or when the findings of facts of the CA are premised
on the absence of evidence and are contradicted by the evidence on
record.41 The Court finds these instances present in this case.
At the time of Pablo’s death, the prevailing law was Republic Act No.
1161, as amended by Presidential Decree No. 735. Section 13 of the
law enumerates those who are entitled to death benefits:
Sec.13. Death benefits. – Effective July 1, 1975, upon the covered
employee’s death, (a) his primary beneficiaries shall be entitled to
the basic monthly pension, and his dependents to the dependent’s
pension: Provided, That he has paid at least thirty-six monthly
contributions prior to the semester of death: Provided, further, That
if the foregoing condition is not satisfied, or if he has no primary
beneficiaries, his secondary beneficiaries shall be entitled to a lump
sum benefit equivalent to thirty times the basic monthly pension:
Provided, however, That the death benefit shall not be less than the
total contributions paid by him and his employer on his behalf nor
less than five hundred pesos: Provided, finally, That the covered
employee who dies in the month of coverage shall be entitled to the
minimum benefit.
Section 8(k) and (e), in turn, defines dependents and primary
beneficiaries of an SSS member as follows:
SECTION 8. Terms defined. – For the purposes of this Act the
following terms shall, unless the context indicates otherwise, have
the following meanings:
xxxx
(e) Dependent. – The legitimate, legitimated, or legally adopted
child who is unmarried, not gainfully employed, and not over
twenty-one years of age provided that he is congenitally
incapacitated and incapable of self-support physically or mentally;
the legitimate spouse dependent for support upon the employee;
and the legitimate parents wholly dependent upon the covered
employee for regular support.
xxxx
(k) Beneficiaries. – The dependent spouse until he remarries and
dependent children, who shall be the primary beneficiaries. In their
absence, the dependent parents and, subject to the restrictions
imposed on dependent children, the legitimate descendants and
illegitimate children who shall be the secondary beneficiaries. In the
absence of any of the foregoing, any other person designated by the
covered employee as secondary beneficiary.
Whoever claims entitlement to such benefits should establish his or
her right thereto by substantial evidence. Substantial evidence, the
quantum of evidence required to establish a fact in cases before
administrative or quasi-judicial bodies, is that level of relevant
evidence which a reasonable mind might accept as adequate to
justify a conclusion.42
The Court has reviewed the records of the case and finds that only
Jeylnn has sufficiently established her right to a monthly pension.
Jeylnn’s claim is justified by the photocopy of her birth certificate
which bears the signature of Pablo. Petitioner was able to
authenticate the certification from the Civil Registry showing that
she was born on October 29, 1991. The records also show that
Rosanna and Pablo were married on December 4, 1977 and the
marriage subsisted until the latter’s death on December 8, 1996. It is
therefore evident that Jeylnn was born during Rosanna and Pablo’s
marriage.
It bears stressing that under Article 164 of the Family Code, children
conceived or born during the marriage of the parents are legitimate.
This Court, in De Jesus v. Estate of Decedent Juan Gamboa
Dizon,43 extensively discussed this presumption –
There is perhaps no presumption of the law more firmly established
and founded on sounder morality and more convincing reason than
the presumption that children born in wedlock are legitimate. This
presumption indeed becomes conclusive in the absence of proof
that there is physical impossibility of access between the spouses
during the first 120 days of the 300 days which immediately
precedes the birth of the child due to (a) the physical incapacity of
the husband to have sexual intercourse with his wife; (b) the fact
that the husband and wife are living separately in such way that
sexual intercourse is not possible; or (c) serious illness of the
husband, which absolutely prevents sexual intercourse. Quite
remarkably, upon the expiration of the periods set forth in Article
170,44 and in proper cases Article 171,45 of the Family Code (which
took effect on 03 August 1988), the action to impugn the legitimacy
of the child would no longer be legally feasible and the status
conferred by the presumption becomes fixed and unassailable.46
Indeed, impugning the legitimacy of a child is a strictly personal right
of the husband or, in exceptional cases, his heirs. 47 In this case,
there is no showing that Pablo challenged the legitimacy of Jeylnn
during his lifetime. Hence, Jeylnn’s status as a legitimate child of
Pablo can no longer be contested.
The presumption that Jeylnn is a legitimate child is buttressed by
her birth certificate bearing Pablo’s signature, which was verified
from his specimen signature on file with petitioner. A birth
certificate signed by the father is a competent evidence of
paternity.48
The presumption of legitimacy under Article 164, however, can not
extend to Janet because her date of birth was not substantially
proven. Such presumption may be availed only upon convincing
proof of the factual basis therefor, i.e., that the child’s parents were
legally married and that his/her conception or birth occurred during
the subsistence of that marriage.49 It should be noted that
respondents likewise submitted a photocopy of Janet’s alleged birth
certificate. However, the Court cannot give said birth certificate the
same probative weight as Jeylnn’s because it was not verified in any
way by the civil register. It stands as a mere photocopy, without
probative weight. Unlike Jeylnn, there was no confirmation by the
civil register of the fact of Janet’s birth on the date stated in the
certificate.
In any case, a record of birth is merely prima facie evidence of the
facts contained therein.50 Here, the witnesses were unanimous in
saying that Janet was not the real child but merely adopted by
Rosanna and Pablo. Leticia also testified that Janet’s adoption did
not undergo any legal proceedings; hence, there were no papers to
prove it. Under Section 8(e) of Republic Act No. 1161, as amended,
only "legally adopted" children are considered dependent children.
Absent any proof that the family has legally adopted Janet, the
Court cannot consider her a dependent child of Pablo, hence, not a
primary beneficiary.
On the claims of Rosanna, it bears stressing that for her to qualify as
a primary beneficiary, she must prove that she was "the legitimate
spouse dependent for support from the employee." The claimant-
spouse must therefore establish two qualifying factors: (1) that she
is the legitimate spouse, and (2) that she is dependent upon the
member for support. In this case, Rosanna presented proof to show
that she is the legitimate spouse of Pablo, that is, a copy of their
marriage certificate which was verified with the civil register by
petitioner. But whether or not Rosanna has sufficiently established
that she was still dependent on Pablo at the time of his death
remains to be resolved. Indeed, a husband and wife are obliged to
support each other,51 but whether one is actually dependent for
support upon the other is something that has to be shown; it cannot
be presumed from the fact of marriage alone.
In a parallel case52 involving a claim for benefits under the GSIS law,
the Court defined a dependent as "one who derives his or her main
support from another. Meaning, relying on, or subject to, someone
else for support; not able to exist or sustain oneself, or to perform
anything without the will, power, or aid of someone else." It should
be noted that the GSIS law likewise defines a dependent spouse as
"the legitimate spouse dependent for
support upon the member or pensioner." In that case, the Court
found it obvious that a wife who abandoned the family for more
than 17 years until her husband died, and lived with other men, was
not dependent on her husband for support, financial or otherwise,
during that entire period. Hence, the Court denied her claim for
death benefits.
The obvious conclusion then is that a wife who is already separated
de facto from her husband cannot be said to be "dependent for
support" upon the husband, absent any showing to the contrary.
Conversely, if it is proved that the husband and wife were still living
together at the time of his death, it would be safe to presume that
she was dependent on the husband for support, unless it is shown
that she is capable of providing for herself.
Rosanna had the burden to prove that all the statutory
requirements have been complied with, particularly her dependency
on her husband for support at the time of his death. Aside from her
own testimony, the only evidence adduced by Rosanna to prove
that she and Pablo lived together as husband and wife until his
death were the affidavits of Vivencia Turla and Carmelita Yangu
where they made such declaration.
Still, the affidavits of Vivencia and Carmelita and their testimonies
before the SSC will not prevail over the categorical and
straightforward testimonies of the other witnesses who testified
that Rosanna and Pablo had already separated for almost six years
before the latter died. Except for the bare assertion of Carmelita
that the couple never separated, there was no further statement
regarding the witnesses’ assertion in their affidavits that the couple
lived together until Pablo’s death. On the contrary, Leticia narrated
that the two separated after Jeylnn’s baptism as a result of an
argument regarding Romeo dela Peña. According to Leticia, there
was a commotion at their ancestral house because Romeo dela
Peña was grumbling why Jeylnn was named after Pablo when he
was the father, and as a result, Pablo drove them away. The SSC’s
observation and conclusion on the two baptismal certificates of
Jeylnn and Jenelyn convinces this Court to further believe Leticia’s
testimony on why Pablo and Rosanna separated. As noted by the
SSC:
It appears from the records that Jeylnn Aguas and Jenelyn H. dela
Peña are one and the same person. Jeylnn Aguas, born on October
29, 1991 was baptized at the Metropolitan Cathedral of San
Fernando, Pampanga, on November 24, 1991 as the child of Pablo
Aguas and Rosanna Hernandez. Jenelyn H dela Peña, on the other
hand, was born on January 29, 1992 to spouses Rosanna Hernandez
and Romeo dela Peña and baptized on February 9, 1992. It will be
noted that Jenelyn dela Peña was born approximately three months
after the birth of Jeylnn Aguas. It is physically impossible for
Rosanna to have given birth successively to two children in so short
a time. x x x The testimony of Leticia Aguas-Macapinlac that
Rosanna was driven away by Pablo after the baptism of Jeylnn
because of the commotion that was created by Romeo dela Peña
who wanted Jeylnn to be baptized using his name explains why
Jeylnn was again baptized in the Parish of Sto. Niño in San Fernando
using the name Jenelyn dela Peña. They changed her date of birth
also to make it appear in the record of the parish that she is another
child of Rosanna.53
On the other hand, Mariquita categorically affirmed that Rosanna
was no longer living at Pablo’s house even before he died, and that
she is still living with Romeo dela Peña up to the present. Mariquita
testified as follows:
Hearing Officer:
Nagsama ba si Rosanna at Romeo?
Mrs. Dizon:
Ngayon at kahit na noon.
Hearing Officer: nanay ko. Noon madalas ako noong buhay pa yung nanay ni Kuya entitled to the SSS death benefits accruing from the death of Pablo
Pabling dahil kami ang nag aalaga sa kanya. Aguas.
Kailan namatay si Pablo?
Hearing Officer: SO ORDERED.
Mrs. Dizon:
Bago namatay si Pablo, nagsasama ba sina Romeo at Rosanna?
1996.
Mrs. Dizon:
Hearing Officer:
Oo.
Noong bago mamatay si Pablo?
Hearing Officer:
Mrs. Dizon:
Sa ngayon, may alam ka pa ba kung nagsasama pa sila Romeo at
Nagsasama na sila Romeo at Rosanna noon. Rosanna?

Hearing Officer: Mrs. Dizon:

So, buhay pa si Pablo …… Oo, nagsasama sila, may bahay sila.

Mrs. Dizon: Hearing Officer:

…. nagsasama na sila ni Romeo. Saan naman?

Hearing Officer: Mrs. Dizon:

Kailan nagkahiwalay si Romeo at Rosanna? Doon sa malapit sa amin sa may riles ng tren.54

Mrs. Dizon: In conclusion, the Court finds that, among respondents, only Jeylnn
is entitled to the SSS death benefits accruing from the death of
Hindi na sila nagkahiwalay. Pablo, as it was established that she is his legitimate child. On the
other hand, the records show that Janet was merely "adopted" by
the spouses, but there are no legal papers to prove it; hence, she
Hearing Officer:
cannot qualify as a primary beneficiary. Finally, while Rosanna was
the legitimate wife of Pablo, she is likewise not qualified as a
Hindi, ibig ko sabihin si Pablo at Rosana?
primary beneficiary since she failed to present any proof to show
that at the time of his death, she was still dependent on him for
Mrs. Dizon: support even if they were already living separately.

Hindi ko alam kasi hindi ako madalas pumunta sa kanila eh, dahil IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY
namatay na yung nanay ni Kuya Pabling, yung tiyahin ko, kapatid ng GRANTED. The Decision and Resolution of the Court of Appeals are
AFFIRMED WITH MODIFICATION. Only Jeylnn H. Aguas is declared
THIRD DIVISION
G.R. No. 123450. August 31, 2005
GERARDO B. CONCEPCION, Petitioners,
vs.
COURT OF APPEALS and MA. THERESA ALMONTE, Respondent.
DECISION
CORONA, J.:
The child, by reason of his mental and physical immaturity, needs
special safeguard and care, including appropriate legal protection
before as well as after birth.1 In case of assault on his rights by those
who take advantage of his innocence and vulnerability, the law will
rise in his defense with the single-minded purpose of upholding only
his best interests.
This is the story of petitioner Gerardo B. Concepcion and private
respondent Ma. Theresa Almonte, and a child named Jose Gerardo.
Gerardo and Ma. Theresa were married on December 29,
1989.2 After their marriage, they lived with Ma. Theresa’s parents in
Fairview, Quezon City.3 Almost a year later, on December 8, 1990,
Ma. Theresa gave birth to Jose Gerardo.4
Gerardo and Ma. Theresa’s relationship turned out to be short-lived,
however. On December 19, 1991, Gerardo filed a petition to have
his marriage to Ma. Theresa annulled on the ground of bigamy. 5 He
alleged that nine years before he married Ma. Theresa on December
10, 1980, she had married one Mario Gopiao, which marriage was
never annulled.6 Gerardo also found out that Mario was still alive
and was residing in Loyola Heights, Quezon City.7
Ma. Theresa did not deny marrying Mario when she was twenty
years old. She, however, averred that the marriage was a sham and
that she never lived with Mario at all.8
The trial court ruled that Ma. Theresa’s marriage to Mario was valid
and subsisting when she married Gerardo and annulled her
marriage to the latter for being bigamous. It declared Jose Gerardo
to be an illegitimate child as a result. The custody of the child was
awarded to Ma. Theresa while Gerardo was granted visitation
rights.9
Ma. Theresa felt betrayed and humiliated when Gerardo had their
marriage annulled. She held him responsible for the ‘bastardization’
of Gerardo. She moved for the reconsideration of the above
decision "INSOFAR ONLY as that portion of the … decision which
grant(ed) to the petitioner so-called ‘visitation rights’… between the
hours of 8 in the morning to 12:00 p.m. of any Sunday." 10 She
argued that there was nothing in the law granting "visitation rights
in favor of the putative father of an illegitimate child."11 She further
maintained that Jose Gerardo’s surname should be changed from
Concepcion to Almonte, her maiden name, following the rule that
an illegitimate child shall use the mother’s surname.
Gerardo opposed the motion. He insisted on his visitation rights and
the retention of ‘Concepcion’ as Jose Gerardo’s surname.
Applying the "best interest of the child" principle, the trial court
denied Ma. Theresa’s motion and made the following observations:
It is a pity that the parties herein seem to be using their son to get at
or to hurt the other, something they should never do if they want to
assure the normal development and well-being of the boy.
The Court allowed visitorial rights to the father knowing that the
minor needs a father, especially as he is a boy, who must have a
father figure to recognize – something that the mother alone cannot
give. Moreover, the Court believes that the emotional and
psychological well-being of the boy would be better served if he
were allowed to maintain relationships with his father.
There being no law which compels the Court to act one way or the
other on this matter, the Court invokes the provision of Art. 8, PD
603 as amended, otherwise known as the Child and Youth Welfare
Code, to wit:
"In all questions regarding the care, custody, education and
property of the child, his welfare shall be the paramount
consideration."
WHEREFORE, the respondent’s Motion for Reconsideration has to
be, as it is hereby DENIED.12
Ma. Theresa elevated the case to the Court of Appeals, assigning as
error the ruling of the trial court granting visitation rights to
Gerardo. She likewise opposed the continued use of Gerardo’s
surname (Concepcion) despite the fact that Jose Gerardo had
already been declared illegitimate and should therefore use her
surname (Almonte). The appellate court denied the petition and
affirmed in toto the decision of the trial court.13
On the issue raised by Ma. Theresa that there was nothing in the
law that granted a putative father visitation rights over his
illegitimate child, the appellate court affirmed the "best interest of
the child" policy invoked by the court a quo. It ruled that "[a]t
bottom, it (was) the child’s welfare and not the convenience of the
parents which (was) the primary consideration in granting visitation
rights a few hours once a week."14
The appellate court likewise held that an illegitimate child cannot
use the mother’s surname motu proprio. The child, represented by
the mother, should file a separate proceeding for a change of name
under Rule 103 of the Rules of Court to effect the correction in the
civil registry.15
Undaunted, Ma. Theresa moved for the reconsideration of the
adverse decision of the appellate court. She also filed a motion to
set the case for oral arguments so that she could better ventilate
the issues involved in the controversy.
After hearing the oral arguments of the respective counsels of the
parties, the appellate court resolved the motion for reconsideration.
It reversed its earlier ruling and held that Jose Gerardo was not the
son of Ma. Theresa by Gerardo but by Mario during her first
marriage:
It is, therefore, undeniable – established by the evidence in this case
– that the appellant [Ma. Theresa] was married to Mario Gopiao,
and that she had never entered into a lawful marriage with the
appellee [Gerardo] since the so-called "marriage" with the latter
was void ab initio. It was [Gerardo] himself who had established
these facts. In other words, [Ma. Theresa] was legitimately married
to Mario Gopiao when the child Jose Gerardo was born on
December 8, 1990. Therefore, the child Jose Gerardo – under the
law – is the legitimate child of the legal and subsisting marriage
between [Ma. Theresa] and Mario Gopiao; he cannot be deemed to
be the illegitimate child of the void and non-existent ‘marriage’
between [Ma. Theresa] and [Gerardo], but is said by the law to be
the child of the legitimate and existing marriage between [Ma.
Theresa] and Mario Gopiao (Art. 164, Family Code). Consequently,
[she] is right in firmly saying that [Gerardo] can claim neither
custody nor visitorial rights over the child Jose Gerardo. Further,
[Gerardo] cannot impose his name upon the child. Not only is it
without legal basis (even supposing the child to be his illegitimate
child [Art. 146, The Family Code]); it would tend to destroy the
existing marriage between [Ma. Theresa] and Gopiao, would
prevent any possible rapproachment between the married couple,
and would mean a judicial seal upon an illegitimate relationship.16
The appellate court brushed aside the common admission of
Gerardo and Ma. Theresa that Jose Gerardo was their son. It gave
little weight to Jose Gerardo’s birth certificate showing that he was
born a little less than a year after Gerardo and Ma. Theresa were
married:
We are not unaware of the movant’s argument that various
evidence exist that appellee and the appellant have judicially
admitted that the minor is their natural child. But, in the same vein,
We cannot overlook the fact that Article 167 of the Family Code
mandates:
"The child shall be considered legitimate although the mother may
have declared against its legitimacy or may have been sentenced as
an adulteress." (underscoring ours)
Thus, implicit from the above provision is the fact that a minor
cannot be deprived of his/her legitimate status on the bare
declaration of the mother and/or even much less, the supposed
father. In fine, the law and only the law determines who are the
legitimate or illegitimate children for one’s legitimacy or
illegitimacy cannot ever be compromised. Not even the birth
certificate of the minor can change his status for the information
contained therein are merely supplied by the mother and/or the
supposed father. It should be what the law says and not what a
parent says it is.17 (Emphasis supplied)
Shocked and stunned, Gerardo moved for a reconsideration of the
above decision but the same was denied.18Hence, this appeal.
The status and filiation of a child cannot be compromised. 19 Article
164 of the Family Code is clear. A child who is conceived or born
during the marriage of his parents is legitimate. 20
21
As a guaranty in favor of the child and to protect his status of
legitimacy, Article 167 of the Family Code provides:
Article 167. The child shall be considered legitimate although the
mother may have declared against its legitimacy or may have been
sentenced as an adulteress.
The law requires that every reasonable presumption be made in
favor of legitimacy.22 We explained the rationale of this rule in the
recent case of Cabatania v. Court of Appeals23 :
The presumption of legitimacy does not only flow out of a
declaration in the statute but is based on the broad principles of
natural justice and the supposed virtue of the mother. It is grounded
on the policy to protect the innocent offspring from the odium of
illegitimacy.
Gerardo invokes Article 166 (1)(b)24 of the Family Code. He cannot.
He has no standing in law to dispute the status of Jose Gerardo.
Only Ma. Theresa’s husband Mario or, in a proper case, 25 his heirs,
who can contest the legitimacy of the child Jose Gerardo born to his
wife.26 Impugning the legitimacy of a child is a strictly personal right
of the husband or, in exceptional cases, his heirs. 27 Since the
marriage of Gerardo and Ma. Theresa was void from the very
beginning, he never became her husband and thus never acquired
any right to impugn the legitimacy of her child.
The presumption of legitimacy proceeds from the sexual union in
marriage, particularly during the period of conception.28 To
overthrow this presumption on the basis of Article 166 (1)(b) of the
Family Code, it must be shown beyond reasonable doubt that there
was no access that could have enabled the husband to father the
child.29Sexual intercourse is to be presumed where personal access
is not disproved, unless such presumption is rebutted by evidence to
the contrary.30
The presumption is quasi-conclusive and may be refuted only by the
evidence of physical impossibility of coitus between husband and
wife within the first 120 days of the 300 days which immediately
preceded the birth of the child.31
To rebut the presumption, the separation between the spouses
must be such as to make marital intimacy impossible.32 This may
take place, for instance, when they reside in different countries or
provinces and they were never together during the period of
conception.33 Or, the husband was in prison during the period of
conception, unless it appears that sexual union took place through
the violation of prison regulations.34
Here, during the period that Gerardo and Ma. Theresa were living
together in Fairview, Quezon City, Mario was living in Loyola Heights
which is also in Quezon City. Fairview and Loyola Heights are only a
scant four kilometers apart.
Not only did both Ma. Theresa and Mario reside in the same city but
also that no evidence at all was presented to disprove personal
access between them. Considering these circumstances, the
separation between Ma. Theresa and her lawful husband, Mario,
was certainly not such as to make it physically impossible for them
to engage in the marital act.
Sexual union between spouses is assumed. Evidence sufficient to
defeat the assumption should be presented by him who asserts the
contrary. There is no such evidence here. Thus, the presumption of
legitimacy in favor of Jose Gerardo, as the issue of the marriage
between Ma. Theresa and Mario, stands.
Gerardo relies on Ma. Theresa’s statement in her answer35 to the
petition for annulment of marriage36 that she never lived with
Mario. He claims this was an admission that there was never any
sexual relation between her and Mario, an admission that was
binding on her.
Gerardo’s argument is without merit.
First, the import of Ma. Theresa’s statement is that Jose Gerardo is
not her legitimate son with Mario but her illegitimate son with
Gerardo. This declaration ― an avowal by the mother that her child
is illegitimate ― is the very declaration that is proscribed by Article
167 of the Family Code.
The language of the law is unmistakable. An assertion by the mother
against the legitimacy of her child cannot affect the legitimacy of a
child born or conceived within a valid marriage.
Second, even assuming the truth of her statement, it does not mean
that there was never an instance where Ma. Theresa could have
been together with Mario or that there occurred absolutely no
intercourse between them. All she said was that she never lived
with Mario. She never claimed that nothing ever happened between
them.
Telling is the fact that both of them were living in Quezon City
during the time material to Jose Gerardo’s conception and birth. Far
from foreclosing the possibility of marital intimacy, their proximity
to each other only serves to reinforce such possibility. Thus, the
impossibility of physical access was never established beyond
reasonable doubt.
Third, to give credence to Ma. Theresa’s statement is to allow her to
arrogate unto herself a right exclusively lodged in the husband, or in
a proper case, his heirs.37 A mother has no right to disavow a child
because maternity is never uncertain.38 Hence, Ma. Theresa is not
permitted by law to question Jose Gerardo’s legitimacy.
Finally, for reasons of public decency and morality, a married
woman cannot say that she had no intercourse with her husband
and that her offspring is illegitimate.39 The proscription is in
consonance with the presumption in favor of family solidarity. It
also promotes the intention of the law to lean toward the legitimacy
of children.40
Gerardo’s insistence that the filiation of Jose Gerardo was never an
issue both in the trial court and in the appellate court does not hold
water. The fact that both Ma. Theresa and Gerardo admitted and
agreed that Jose Gerardo was born to them was immaterial. That
was, in effect, an agreement that the child was illegitimate. If the
Court were to validate that stipulation, then it would be tantamount
to allowing the mother to make a declaration against the legitimacy
of her child and consenting to the denial of filiation of the child by
persons other than her husband. These are the very acts from which
the law seeks to shield the child.
Public policy demands that there be no compromise on the status
and filiation of a child.41 Otherwise, the child will be at the mercy of
those who may be so minded to exploit his defenselessness.
The reliance of Gerardo on Jose Gerardo’s birth certificate is
misplaced. It has no evidentiary value in this case because it was not
offered in evidence before the trial court. The rule is that the court
shall not consider any evidence which has not been formally
offered.42
Moreover, the law itself establishes the status of a child from the
moment of his birth.43 Although a record of birth or birth certificate
may be used as primary evidence of the filiation of a child, 44 as the
status of a child is determined by the law itself, proof of filiation is
necessary only when the legitimacy of the child is being questioned,
or when the status of a child born after 300 days following the
termination of marriage is sought to be established.45
Here, the status of Jose Gerardo as a legitimate child was not under
attack as it could not be contested collaterally and, even then, only
by the husband or, in extraordinary cases, his heirs. Hence, the
presentation of proof of legitimacy in this case was improper and
uncalled for.
In addition, a record of birth is merely prima facie evidence of the
facts contained therein.46 As prima facie evidence, the statements in
the record of birth may be rebutted by more preponderant
evidence. It is not conclusive evidence with respect to the
truthfulness of the statements made therein by the interested
parties.47 Between the certificate of birth which is prima
facie evidence of Jose Gerardo’s illegitimacy and the quasi-
conclusive presumption of law (rebuttable only by proof beyond
reasonable doubt) of his legitimacy, the latter shall prevail. Not only
does it bear more weight, it is also more conducive to the best
interests of the child and in consonance with the purpose of the law.
It perplexes us why both Gerardo and Ma. Theresa would doggedly
press for Jose Gerardo’s illegitimacy while claiming that they both
had the child’s interests at heart. The law, reason and common
sense dictate that a legitimate status is more favorable to the child.
In the eyes of the law, the legitimate child enjoys a preferred and
superior status. He is entitled to bear the surnames of both his
father and mother, full support and full inheritance.48On the other
hand, an illegitimate child is bound to use the surname and be
under the parental authority only of his mother. He can claim
support only from a more limited group and his legitime is only half
of that of his legitimate counterpart.49 Moreover (without
unwittingly exacerbating the discrimination against him), in the eyes
of society, a ‘bastard’ is usually regarded as bearing a stigma or
mark of dishonor. Needless to state, the legitimacy presumptively
vested by law upon Jose Gerardo favors his interest.
It is unfortunate that Jose Gerardo was used as a pawn in the bitter
squabble between the very persons who were passionately
declaring their concern for him. The paradox was that he was made
to suffer supposedly for his own sake. This madness should end.
This case has been pending for a very long time already. What is
specially tragic is that an innocent child is involved. Jose Gerardo
was barely a year old when these proceedings began. He is now
almost fifteen and all this time he has been a victim of incessant
bickering. The law now comes to his aid to write finis to the
controversy which has unfairly hounded him since his infancy.
Having only his best interests in mind, we uphold the presumption
of his legitimacy.
As a legitimate child, Jose Gerardo shall have the right to bear the
surnames of his father Mario and mother Ma. Theresa, in
conformity with the provisions of the Civil Code on surnames.50 A
person’s surname or family name identifies the family to which he
belongs and is passed on from parent to child. 51 Hence, Gerardo
cannot impose his surname on Jose Gerardo who is, in the eyes of
the law, not related to him in any way.
The matter of changing Jose Gerardo’s name and effecting the
corrections of the entries in the civil register regarding his paternity
and filiation should be threshed out in a separate proceeding.
In case of annulment or declaration of absolute nullity of marriage,
Article 49 of the Family Code grants visitation rights to a parent who
is deprived of custody of his children. Such visitation rights flow
from the natural right of both parent and child to each other’s
company. There being no such parent-child relationship between
them, Gerardo has no legally demandable right to visit Jose Gerardo.
Our laws seek to promote the welfare of the child. Article 8 of PD
603, otherwise known as the Child and Youth Welfare Code, is clear
and unequivocal:

Article 8. Child’s Welfare Paramount. – In all questions regarding the

care, custody, education and property of the child, his welfare shall
be the paramount consideration.

Article 3 (1) of the United Nations Convention on the Rights of a

Child of which the Philippines is a signatory is similarly emphatic:

Article 3

1. In all actions concerning children, whether undertaken by public

or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall
be a primary consideration.

The State as parens patriae affords special protection to children

from abuse, exploitation and other conditions prejudicial to their
development. It is mandated to provide protection to those of
tender years.52 Through its laws, the State safeguards them from
every one, even their own parents, to the end that their eventual
development as responsible citizens and members of society shall
not be impeded, distracted or impaired by family acrimony. This is
especially significant where, as in this case, the issue concerns their
filiation as it strikes at their very identity and lineage.

WHEREFORE, the petition is hereby DENIED. The September 14,

1995 and January 10, 1996 resolutions of the Court of Appeals in
CA-G.R. CV No. 40651 are hereby AFFIRMED.

Costs against petitioner.

SO ORDERED.
THIRD DIVISION
G.R. No. 171713 December 17, 2007
ESTATE OF ROGELIO G. ONG, petitioner,
vs.
Minor JOANNE RODJIN DIAZ, Represented by Her Mother and
Guardian, Jinky C. Diaz, respondent.
DECISION
CHICO-NAZARIO, J.:
This is a petition for Review on Certiorari under Rule 45 of the
Revised Rules of Civil Procedure assailing (1) the Decision 1 of the
Court of Appeals dated 23 November 2005 and (2) the
Resolution2 of the same court dated 1 March 2006 denying
petitioner’s Motion for Reconsideration in CA-G.R. CV No. 70125.
A Complaint3 for compulsory recognition with prayer for support
pending litigation was filed by minor Joanne Rodjin Diaz (Joanne),
represented by her mother and guardian, Jinky C. Diaz (Jinky),
against Rogelio G. Ong (Rogelio) before the Regional Trial Court
(RTC) of Tarlac City. In her Complaint, Jinky prayed that judgment be
rendered:
(a) Ordering defendant to recognize plaintiff Joanne Rodjin
Diaz as his daughter.
(b) Ordering defendant to give plaintiff monthly support
of P20,000.00 pendente lite and thereafter to fix monthly
support.
(c) Ordering the defendant to pay plaintiff attorney’s fees
in the sum of P100,000.00.
(d) Granting plaintiff such other measure of relief as maybe
just and equitable in the premises.4
As alleged by Jinky in her Complaint in November 1993 in Tarlac
City, she and Rogelio got acquainted. This developed into friendship
and later blossomed into love. At this time, Jinky was already
married to a Japanese national, Hasegawa Katsuo, in a civil wedding
solemnized on 19 February 1993 by Municipal Trial Court Judge
Panfilo V. Valdez.5
From January 1994 to September 1998, Jinky and Rogelio cohabited
and lived together at Fairlane Subdivision, and later at Capitol
Garden, Tarlac City.
From this live-in relationship, minor Joanne Rodjin Diaz was
conceived and on 25 February 1998 was born at the Central Luzon
Doctors’ Hospital, Tarlac City.
Rogelio brought Jinky to the hospital and took minor Joanne and
Jinky home after delivery. Rogelio paid all the hospital bills and the
baptismal expenses and provided for all of minor Joanne’s needs –
recognizing the child as his.
In September 1998, Rogelio abandoned minor Joanne and Jinky, and
stopped supporting minor Joanne, falsely alleging that he is not the
father of the child.
Rogelio, despite Jinky’s remonstrance, failed and refused and
continued failing and refusing to give support for the child and to
acknowledge her as his daughter, thus leading to the filing of the
heretofore adverted complaint.
After summons had been duly served upon Rogelio, the latter failed
to file any responsive pleading despite repeated motions for
extension, prompting the trial court to declare him in default in its
Order dated 7 April 1999. Rogelio’s Answer with Counterclaim and
Special and Affirmative Defenses was received by the trial court only
on 15 April 1999. Jinky was allowed to present her evidence ex
parte on the basis of which the trial court on 23 April 1999 rendered
a decision granting the reliefs prayed for in the complaint.
In its Decision6 dated 23 April 1999, the RTC held:
WHEREFORE, judgment is hereby rendered:
1. Ordering defendant to recognize plaintiff as his natural
child;
2. Ordering defendant to provide plaintiff with a monthly
support of P10,000.00 and further
3. Ordering defendant to pay reasonable attorney’s fees in
the amount of P5,000.00 and the cost of the suit.
On 28 April 1999, Rogelio filed a motion to lift the order of default
and a motion for reconsideration seeking the court’s understanding,
as he was then in a quandary on what to do to find a solution to a
very difficult problem of his life.7
On 29 April 1999, Rogelio filed a motion for new trial with prayer
that the decision of the trial court dated 23 April 1999 be vacated
and the case be considered for trial de novo pursuant to the
provisions of Section 6, Rule 37 of the 1997 Rules of Civil
Procedure.8
On 16 June 1999, the RTC issued an Order granting Rogelio’s Motion
for New Trial:
WHEREFORE, finding defendant’s motion for new trial to be
impressed with merit, the same is hereby granted.
The Order of this court declaring defendant in default and
the decision is this court dated April 23, 1999 are hereby
set aside but the evidence adduced shall remain in record,
subject to cross-examination by defendant at the
appropriate stage of the proceedings.
In the meantime defendant’s answer is hereby admitted,
subject to the right of plaintiff to file a reply and/or answer
to defendant’s counterclaim within the period fixed by the
Rules of Court.
Acting on plaintiff’s application for support pendente lite
which this court finds to be warranted, defendant is hereby
ordered to pay to plaintiff immediately the sum
of P2,000.00 a month from January 15, 1999 to May 1999
as support pendente lite in arrears and the amount
of P4,000.00 every month thereafter as regular support
pendente lite during the pendency of this case.9
The RTC finally held:
The only issue to be resolved is whether or not the
defendant is the father of the plaintiff Joanne Rodjin Diaz.
Since it was duly established that plaintiff’s mother Jinky
Diaz was married at the time of the birth of Joanne Rodjin
Diaz, the law presumes that Joanne is a legitimate child of
the spouses Hasegawa Katsuo and Jinky Diaz (Article 164,
Family Code). The child is still presumed legitimate even if
the mother may have declared against her legitimacy
(Article 167, Ibid).
The legitimacy of a child may be impugned only on the
following grounds provided for in Article 166 of the same
Code. Paragraph 1 of the said Article provides that there
must be physical impossibility for the husband to have
sexual intercourse with the wife within the first 120 days of
the 300 days following the birth of the child because of –
a) physical incapacity of the husband to have
sexual intercourse with his wife;
b) husband and wife were living separately in such
a way that sexual intercourse was not possible;
c) serious illness of the husband which prevented
sexual intercourse.
It was established by evidence that the husband is a
Japanese national and that he was living outside of the
country (TSN, Aug. 27, 1999, page 5) and he comes home
only once a year. Both evidence of the parties proved that
the husband was outside the country and no evidence was
shown that he ever arrived in the country in the year 1997
preceding the birth of plaintiff Joanne Rodjin Diaz.
While it may also be argued that plaintiff Jinky had a
relationship with another man before she met the
defendant, there is no evidence that she also had sexual
relations with other men on or about the conception of
Joanne Rodjin. Joanne Rodjin was her second child (see
Exh. "A"), so her first child, a certain Nicole (according to
defendant) must have a different father or may be the son
of Hasegawa K[u]tsuo.
The defendant admitted having been the one who
shouldered the hospital bills representing the expenses in
connection with the birth of plaintiff. It is an evidence of
admission that he is the real father of plaintiff. Defendant
also admitted that even when he stopped going out with
Jinky, he and Jinky used to go to motels even after 1996.
Defendant also admitted that on some instances, he still
used to see Jinky after the birth of Joanne Rodjin.
Defendant was even the one who fetched Jinky after she
gave birth to Joanne.
On the strength of this evidence, the Court finds that
Joanne Rodjin is the child of Jinky and defendant Rogelio
Ong and it is but just that the latter should support
plaintiff.10
On 15 December 2000, the RTC rendered a decision and disposed:
WHEREFORE, judgment is hereby rendered declaring
Joanne Rodjin Diaz to be the illegitimate child of defendant
Rogelio Ong with plaintiff Jinky Diaz. The Order of this
Court awarding support pendente lite dated June 15, 1999,
is hereby affirmed and that the support should continue
until Joanne Rodjin Diaz shall have reached majority age.11
Rogelio filed a Motion for Reconsideration, which was denied for
lack of merit in an Order of the trial court dated 19 January
2001.12 From the denial of his Motion for Reconsideration, Rogelio
appealed to the Court of Appeals. After all the responsive pleadings
had been filed, the case was submitted for decision and ordered re-
raffled to another Justice for study and report as early as 12 July
2002.13
During the pendency of the case with the Court of Appeals,
Rogelio’s counsel filed a manifestation informing the Court that
Rogelio died on 21 February 2005; hence, a Notice of Substitution
was filed by said counsel praying that Rogelio be substituted in the
case by the Estate of Rogelio Ong,14 which motion was accordingly
granted by the Court of Appeals.15
In a Decision dated 23 November 2005, the Court of Appeals held:
WHEREFORE, premises considered, the present appeal is
hereby GRANTED. The appealed Decision dated December
15, 2000 of the Regional Trial Court of Tarlac, Tarlac,
Branch 63 in Civil Case No. 8799 is hereby SET ASIDE. The
case is hereby REMANDED to the court a quo for the
issuance of an order directing the parties to make
arrangements for DNA analysis for the purpose of
determining the paternity of plaintiff minor Joanne Rodjin
Diaz, upon consultation and in coordination with
laboratories and experts on the field of DNA analysis.
No pronouncement as to costs.16
Petitioner filed a Motion for Reconsideration which was denied by
the Court of Appeals in a Resolution dated 1 March 2006.
In disposing as it did, the Court of Appeals justified its Decision as
follows:
In this case, records showed that the late defendant-
appellant Rogelio G. Ong, in the early stage of the
proceedings volunteered and suggested that he and
plaintiff’s mother submit themselves to a DNA or blood
testing to settle the issue of paternity, as a sign of good
faith. However, the trial court did not consider resorting to
this modern scientific procedure notwithstanding the
repeated denials of defendant that he is the biological
father of the plaintiff even as he admitted having actual
sexual relations with plaintiff’s mother. We believe that
DNA paternity testing, as current jurisprudence affirms,
would be the most reliable and effective method of settling
the present paternity dispute. Considering, however, the
untimely demise of defendant-appellant during the
pendency of this appeal, the trial court, in consultation
with out laboratories and experts on the field of DNA
analysis, can possibly avail of such procedure with
whatever remaining DNA samples from the deceased
defendant alleged to be the putative father of plaintiff
minor whose illegitimate filiations is the subject of this
action for support.17
Hence, this petition which raises the following issues for resolution:
I minor.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN
IT DID NOT DISMISS RESPONDENT’S COMPLAINT FOR
COMPULSORY RECOGNITION DESPITE ITS FINDING THAT
THE EVIDENCE PRESENTED FAILED TO PROVE THAT
ROGELIO G. ONG WAS HER FATHER.
II
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN
IT DID NOT DECLARE RESPONDENT AS THE LEGITIMATE
CHILD OF JINKY C. DIAZ AND HER JAPANESE HUSBAND,
CONSIDERING THAT RESPONDENT FAILED TO REBUT THE
PRESUMPTION OF HER LEGITIMACY.
III
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN
IT REMANDED THE CASE TO THE COURT A QUO FOR DNA
ANALYSIS DESPITE THE FACT THAT IT IS NO LONGER
FEASIBLE DUE TO THE DEATH OF ROGELIO G. ONG. 18
Petitioner prays that the present petition be given due course and
the Decision of the Court of Appeals dated November 23, 2005 be
modified, by setting aside the judgment remanding the case to the
trial court for DNA testing analysis, by dismissing the complaint of
minor Joanne for compulsory recognition, and by declaring the
minor as the legitimate child of Jinky and Hasegawa Katsuo.19
From among the issues presented for our disposition, this Court
finds it prudent to concentrate its attention on the third one, the
propriety of the appellate court’s decision remanding the case to
the trial court for the conduct of DNA testing. Considering that a
definitive result of the DNA testing will decisively lay to rest the
issue of the filiation of minor Joanne, we see no reason to resolve
the first two issues raised by the petitioner as they will be rendered
moot by the result of the DNA testing.
As a whole, the present petition calls for the determination of Against this presumption no evidence shall be admitted
filiation of minor Joanne for purposes of support in favor of the said other than that of the physical impossibility of the
husband’s having access to his wife within the first one
hundred and twenty days of the three hundred which
Filiation proceedings are usually filed not just to adjudicate preceded the birth of the child.
paternity but also to secure a legal right associated with paternity,
such as citizenship, support (as in the present case), or inheritance. This physical impossibility may be caused:
The burden of proving paternity is on the person who alleges that
the putative father is the biological father of the child. There are 1) By the impotence of the husband;
four significant procedural aspects of a traditional paternity action
which parties have to face: a prima facie case, affirmative defenses, 2) By the fact that husband and wife were living separately
presumption of legitimacy, and physical resemblance between the in such a way that access was not possible;
putative father and child.20
3) By the serious illness of the husband.24
A child born to a husband and wife during a valid marriage is
presumed legitimate.21 As a guaranty in favor of the child and to
The relevant provisions of the Family Code provide as follows:
protect his status of legitimacy, Article 167 of the Family Code
provides:
ART. 172. The filiation of legitimate children is established
by any of the following:
Article 167. The children shall be considered legitimate
although the mother may have declared against its
(1) The record of birth appearing in the civil register or a
legitimacy or may have been sentenced as an adulteress.
final judgment; or
The law requires that every reasonable presumption be made in
(2) An admission of legitimate filiation in a public document
favor of legitimacy. We explained the rationale of this rule in the
or a private handwritten instrument and signed by the
recent case of Cabatania v. Court of Appeals22:
parent concerned.
The presumption of legitimacy does not only flow out of a
In the absence of the foregoing evidence, the legitimate
declaration in the statute but is based on the broad
filiation shall be proved by:
principles of natural justice and the supposed virtue of the
mother. The presumption is grounded on the policy to
protect the innocent offspring from the odium of (1) The open and continuous possession of the status of a
illegitimacy. legitimate child; or
The presumption of legitimacy of the child, however, is not (2) Any other means allowed by the Rules of Court and
conclusive and consequently, may be overthrown by evidence to the special laws.
contrary. Hence, Article 255 of the New Civil Code23 provides:
ART. 175. Illegitimate children may establish their
Article 255. Children born after one hundred and eighty illegitimate filiation in the same way and on the same
days following the celebration of the marriage, and before evidence as legitimate children.
three hundred days following its dissolution or the
separation of the spouses shall be presumed to be There had been divergent and incongruent statements and
legitimate. assertions bandied about by the parties to the present petition. But
with the advancement in the field of genetics, and the availability of
new technology, it can now be determined with reasonable
certainty whether Rogelio is the biological father of the minor,
through DNA testing.
DNA is the fundamental building block of a person’s entire genetic
make-up. DNA is found in all human cells and is the same in every
cell of the same person. Genetic identity is unique. Hence, a
person’s DNA profile can determine his identity.25
DNA analysis is a procedure in which DNA extracted from a
biological sample obtained from an individual is examined. The DNA
is processed to generate a pattern, or a DNA profile, for the
individual from whom the sample is taken. This DNA profile is
unique for each person, except for identical twins.
Everyone is born with a distinct genetic blueprint called
DNA (deoxyribonucleic acid). It is exclusive to an individual
(except in the rare occurrence of identical twins that share
a single, fertilized egg), and DNA is unchanging throughout
life. Being a component of every cell in the human body,
the DNA of an individual’s blood is the very DNA in his or
her skin cells, hair follicles, muscles, semen, samples from
buccal swabs, saliva, or other body parts.
The chemical structure of DNA has four bases. They are
known as A (Adenine), G (guanine), C (cystosine) and T
(thymine). The order in which the four bases appear in an
individual’s DNA determines his or her physical make up.
And since DNA is a double stranded molecule, it is
composed of two specific paired bases, A-T or T-A and G-C
or C-G. These are called "genes."
Every gene has a certain number of the above base pairs
distributed in a particular sequence. This gives a person his
or her genetic code. Somewhere in the DNA framework,
nonetheless, are sections that differ. They are known as
"polymorphic loci," which are the areas analyzed in DNA
typing (profiling, tests, fingerprinting). In other words, DNA
typing simply means determining the "polymorphic loci."
How is DNA typing performed? From a DNA sample
obtained or extracted, a molecular biologist may proceed
to analyze it in several ways. There are five (5) techniques In the newly promulgated rules on DNA evidence it is provided:
to conduct DNA typing. They are: the RFLP (restriction
fragment length polymorphism); "reverse dot blot" or HLA SEC. 3 Definition of Terms. – For purposes of this Rule, the
DQ a/Pm loci which was used in 287 cases that were following terms shall be defined as follows:
admitted as evidence by 37 courts in the U.S. as of
November 1994; DNA process; VNTR (variable number xxxx
tandem repeats); and the most recent which is known as
the PCR-([polymerase] chain reaction) based STR (short
(c) "DNA evidence" constitutes the totality of the DNA
tandem repeats) method which, as of 1996, was availed of
profiles, results and other genetic information directly
by most forensic laboratories in the world. PCR is the
generated from DNA testing of biological samples;
process of replicating or copying DNA in an evidence
sample a million times through repeated cycling of a
(d) "DNA profile" means genetic information derived from
reaction involving the so-called DNA polymerize
DNA testing of a biological sample obtained from a person,
enzyme. STR, on the other hand, takes measurements in 13
which biological sample is clearly identifiable as originating
separate places and can match two (2) samples with a
from that person;
reported theoretical error rate of less than one (1) in a
trillion.
(e) "DNA testing" means verified and credible scientific
methods which include the extraction of DNA from
Just like in fingerprint analysis, in DNA typing, "matches"
biological samples, the generation of DNA profiles and the
are determined. To illustrate, when DNA or fingerprint
comparison of the information obtained from the DNA
tests are done to identify a suspect in a criminal case, the
testing of biological samples for the purpose of
evidence collected from the crime scene is compared with
determining, with reasonable certainty, whether or not the
the "known" print. If a substantial amount of the
DNA obtained from two or more distinct biological samples
identifying features are the same, the DNA or fingerprint is
originates from the same person (direct identification) or if
deemed to be a match. But then, even if only one feature
the biological samples originate from related persons
of the DNA or fingerprint is different, it is deemed not to
(kinship analysis); and
have come from the suspect.
(f) "Probability of Parentage" means the numerical
As earlier stated, certain regions of human DNA show
estimate for the likelihood of parentage of a putative
variations between people. In each of these regions, a
parent compared with the probability of a random match
person possesses two genetic types called "allele," one
of two unrelated individuals in a given population.
inherited from each parent. In [a] paternity test, the
forensic scientist looks at a number of these variable
regions in an individual to produce a DNA profile. Amidst the protestation of petitioner against the DNA analysis, the
resolution thereof may provide the definitive key to the resolution
Comparing next the DNA profiles of the mother and child, it
of the issue of support for minor Joanne. Our articulation in Agustin
is possible to determine which half of the child’s DNA was
v. Court of Appeals27 is particularly relevant, thus:
inherited from the mother. The other half must have been
inherited from the biological father. The alleged father’s
profile is then examined to ascertain whether he has the Our faith in DNA testing, however, was not quite so
DNA types in his profile, which match the paternal types in steadfast in the previous decade. In Pe Lim v. Court of
the child. If the man’s DNA types do not match that of the Appeals (336 Phil. 741, 270 SCRA 1), promulgated in 1997,
child, the man is excluded as the father. If the DNA types we cautioned against the use of DNA because "DNA, being
a relatively new science, (had) not as yet been accorded
match, then he is not excluded as the father.26
official recognition by our courts. Paternity (would) still
have to be resolved by such conventional evidence as the
relevant incriminating acts,verbal and written, by the
putative father."
In 2001, however, we opened the possibility of admitting
DNA as evidence of parentage, as enunciated in Tijing v.
Court of Appeals [G.R. No. 125901, 8 March 2001, 354 SCRA
17]:
x x x Parentage will still be resolved using
conventional methods unless we adopt the
modern and scientific ways available. Fortunately,
we have now the facility and expertise in using
DNA test for identification and parentage testing.
The University of the Philippines Natural Science
Research Institute (UP-NSRI) DNA Analysis
Laboratory has now the capability to conduct DNA
typing using short tandem repeat (STR) analysis.
The analysis is based on the fact that the DNA of a
child/person has two (2) copies, one copy from the
mother and the other from the father. The DNA
from the mother, the alleged father and child are
analyzed to establish parentage. Of course, being a
novel scientific technique, the use of DNA test as
evidence is still open to challenge. Eventually, as
the appropriate case comes, courts should not
hesitate to rule on the admissibility of DNA
evidence. For it was said, that courts should apply
the results of science when competently obtained
in aid of situations presented, since to reject said
results is to deny progress.
The first real breakthrough of DNA as admissible and
authoritative evidence in Philippine jurisprudence came in
2002 with out en banc decision in People v. Vallejo [G.R.
No. 144656, 9 May 2002, 382 SCRA 192] where the rape
and murder victim’s DNA samples from the bloodstained
clothes of the accused were admitted in evidence. We
reasoned that "the purpose of DNA testing (was) to
ascertain whether an association exist(ed) between the
evidence sample and the reference sample. The samples
collected (were) subjected to various chemical processes to
establish their profile.
A year later, in People v. Janson [G.R. No. 125938, 4 April SEC. 4. Application for DNA Testing Order. – The
2003, 400 SCRA 584], we acquitted the accused charged appropriate court may, at any time, either motu proprio or
with rape for lack of evidence because "doubts persist(ed) on application of any person who has a legal interest in the
in our mind as to who (were) the real malefactors. Yes, a matter in litigation, order a DNA testing. Such order shall
complex offense (had) been perpetrated but who (were) issue after due hearing and notice to the parties upon a
the perpetrators? How we wish we had DNA or other showing of the following:
scientific evidence to still our doubts."
(a) A biological sample exists that is relevant to the case;
In 2004, in Tecson, et al. v. COMELEC [G.R. Nos. 161434,
161634 and 161824, 3 March 2004, 424 SCRA 277], where (b) The biological sample: (i) was not previously subjected
the Court en banc was faced with the issue of filiation of to the type of DNA testing now requested; or (ii) was
then presidential candidate Fernando Poe, Jr., we stated: previously subjected to DNA testing, but the results may
require confirmation for good reasons;
In case proof of filiation or paternity would be
unlikely to satisfactorily establish or would be (c) The DNA testing uses a scientifically valid technique;
difficult to obtain, DNA testing, which examines
genetic codes obtained from body cells of the (d) The DNA testing has the scientific potential to produce
illegitimate child and any physical residue of the new information that is relevant to the proper resolution of
long dead parent could be resorted to. A positive the case; and
match would clear up filiation or paternity.
In Tijing v. Court of Appeals, this Court has
(e) The existence of other factors, if any, which the court
acknowledged the strong weight of DNA testing...
may consider as potentially affecting the accuracy or
integrity of the DNA testing.
Moreover, in our en banc decision in People v.
Yatar [G.R. No. 150224, 19 May 2004, 428 SCRA
From the foregoing, it can be said that the death of the petitioner
504], we affirmed the conviction of the accused
does not ipso facto negate the application of DNA testing for as long
for rape with homicide, the principal evidence for
as there exist appropriate biological samples of his DNA.
which included DNA test results. x x x.
As defined above, the term "biological sample" means any organic
Coming now to the issue of remand of the case to the trial court,
material originating from a person’s body, even if found in
petitioner questions the appropriateness of the order by the Court
inanimate objects, that is susceptible to DNA testing. This includes
of Appeals directing the remand of the case to the RTC for DNA
blood, saliva, and other body fluids, tissues, hairs and bones. 29
testing given that petitioner has already died. Petitioner argues that
a remand of the case to the RTC for DNA analysis is no longer
Thus, even if Rogelio already died, any of the biological samples as
feasible due to the death of Rogelio. To our mind, the alleged
enumerated above as may be available, may be used for DNA
impossibility of complying with the order of remand for purposes of
testing. In this case, petitioner has not shown the impossibility of
DNA testing is more ostensible than real. Petitioner’s argument is
obtaining an appropriate biological sample that can be utilized for
without basis especially as the New Rules on DNA Evidence28 allows
the conduct of DNA testing.
the conduct of DNA testing, either motu proprio or upon application
of any person who has a legal interest in the matter in litigation,
thus: And even the death of Rogelio cannot bar the conduct of DNA
testing. In People v. Umanito,30 citing Tecson v. Commission on
Elections,31 this Court held:
 The 2004 case of Tecson v. Commission on Elections [G.R. Resolution dated 1 March 2006 are AFFIRMED. Costs against
No. 161434, 3 March 2004, 424 SCRA 277] likewise petitioner.
reiterated the acceptance of DNA testing in our jurisdiction
in this wise: "[i]n case proof of filiation or paternity would SO ORDERED.
be unlikely to satisfactorily establish or would be difficult to
obtain, DNA testing, which examines genetic codes
obtained from body cells of the illegitimate child and any
physical residue of the long dead parent could be resorted
to."

It is obvious to the Court that the determination of whether

appellant is the father of AAA’s child, which may be
accomplished through DNA testing, is material to the fair
and correct adjudication of the instant appeal. Under
Section 4 of the Rules, the courts are authorized, after due
hearing and notice, motu proprio to order a DNA testing.
However, while this Court retains jurisdiction over the case
at bar, capacitated as it is to receive and act on the matter
in controversy, the Supreme Court is not a trier of facts and
does not, in the course of daily routine, conduct hearings.
Hence, it would be more appropriate that the case be
remanded to the RTC for reception of evidence in
appropriate hearings, with due notice to the parties.
(Emphasis supplied.)

As we have declared in the said case of Agustin v. Court of

Appeals32:

x x x [F]or too long, illegitimate children have been

marginalized by fathers who choose to deny their
existence. The growing sophistication of DNA testing
technology finally provides a much needed equalizer for
such ostracized and abandoned progeny. We have long
believed in the merits of DNA testing and have repeatedly
expressed as much in the past. This case comes at a perfect
time when DNA testing has finally evolved into a
dependable and authoritative form of evidence gathering.
We therefore take this opportunity to forcefully reiterate
our stand that DNA testing is a valid means of determining
paternity.

WHEREFORE, the instant petition is DENIED for lack of merit. The

Decision of the Court of Appeals dated 23 November 2005 and its
SECOND DIVISION
G.R. No. 105625 January 24, 1994
MARISSA BENITEZ-BADUA, petitioner,
vs.
COURT OF APPEALS, VICTORIA BENITEZ LIRIO AND FEODOR
BENITEZ AGUILAR, respondents.
Reynaldo M. Alcantara for petitioner.
Augustus Cesar E. Azura for private respondents.
PUNO, J.:
This is a petition for review of the Decision of the 12th Division of
the Court of Appeals in CA-G.R. No. CV No. 30862 dated May 29,
1992.1
The facts show that the spouses Vicente Benitez and Isabel
Chipongian owned various properties especially in Laguna. Isabel
died on April 25, 1982. Vicente followed her in the grave on
November 13, 1989. He died intestate.
The fight for administration of Vicente's estate ensued. On
September 24, 1990, private respondents Victoria Benitez-Lirio and
Feodor Benitez Aguilar (Vicente's sister and nephew, respectively)
instituted Sp. Proc. No. 797 (90) before the RTC of San Pablo City,
4th Judicial Region, Br. 30. They prayed for the issuance of letters of
administration of Vicente's estate in favor of private respondent
Aguilar. They alleged, inter alia, viz.:
xxx xxx xxx
4. The decedent is survived by no other heirs or
relatives be they ascendants or descendants,
whether legitimate, illegitimate or legally adopted;
despite claims or representation to the contrary,
petitioners can well and truly establish, given the
chance to do so, that said decedent and his spouse
Isabel Chipongian who pre-deceased him, and
whose estate had earlier been settled extra-
judicial, were without issue and/or without
descendants whatsoever, and that one Marissa
Benitez-Badua who was raised and cared by them
since childhood is, in fact, not related to them by
blood, nor legally adopted, and is therefore not a
legal heir; . . .
On November 2, 1990, petitioner opposed the petition. She alleged
that she is the sole heir of the deceased Vicente Benitez and capable
of administering his estate. The parties further exchanged reply and
rejoinder to buttress their legal postures.
The trial court then received evidence on the issue of petitioner's
heirship to the estate of the deceased. Petitioner tried to prove that
she is the only legitimate child of the spouses Vicente Benitez and
Isabel Chipongian. She submitted documentary evidence, among
others: (1) her Certificate of Live Birth (Exh. 3); (2) Baptismal
Certificate (Exh. 4); (3) Income Tax Returns and Information Sheet
for Membership with the GSIS of the late Vicente naming her as his
daughter (Exhs. 10 to 21); and (4) School Records (Exhs. 5 & 6). She
also testified that the said spouses reared an continuously treated
her as their legitimate daughter. On the other hand, private
respondents tried to prove, mostly thru testimonial evidence, that
the said spouses failed to beget a child during their marriage; that
the late Isabel, then thirty six (36) years of age, was even referred to
Dr. Constantino Manahan, a noted obstetrician-gynecologist, for
treatment. Their primary witness, Victoria Benitez-Lirio, elder sister
of the late Vicente, then 77 years of age,2 categorically declared that
petitioner was not the biological child of the said spouses who were
unable to physically procreate.
On December 17, 1990, the trial court decided in favor of the
petitioner. It dismissed the private respondents petition for letters
and administration and declared petitioner as the legitimate
daughter and sole heir of the spouses Vicente O. Benitez and Isabel
Chipongian. The trial court relied on Articles 166 and 170 of the
Family Code.
On appeal, however, the Decision of the trial court was reversed on
May 29, 1992 by the 17th Division of the Court of Appeals. The
dispositive portion of the Decision of the appellate court states:
WHEREFORE, the decision appealed from herein is
REVERSED and another one entered declaring that
appellee Marissa Benitez is not the biological
daughter or child by nature of the spouse Vicente
O. Benitez and Isabel Chipongian and, therefore,
not a legal heir of the deceased Vicente O.
Benitez. Her opposition to the petition for the
appointment of an administrator of the intestate
of the deceased Vicente O. Benitez is,
consequently, DENIED; said petition and the
proceedings already conducted therein reinstated;
and the lower court is directed to proceed with
the hearing of Special proceeding No. SP-797 (90)
in accordance with law and the Rules.
Costs against appellee.
SO ORDERED.
In juxtaposition, the appellate court held that the trial court erred in
applying Articles 166 and 170 of the Family Code.
In this petition for review, petitioner contends:
1. The Honorable Court of Appeals committed
error of law and misapprehension of facts when it
failed to apply the provisions, more particularly,
Arts. 164, 166, 170 and 171 of the Family Code in
this case and in adopting and upholding private
respondent's theory that the instant case does not
involve an action to impugn the legitimacy of a
child;
2. Assuming arguendo that private respondents
can question or impugn directly or indirectly, the
legitimacy of Marissa's birth, still the respondent
appellate Court committed grave abuse of
discretion when it gave more weight to the
testimonial evidence of witnesses of private
 respondents whose credibility and demeanor have
not convinced the trial court of the truth and
sincerity thereof, than the documentary and
testimonial evidence of the now petitioner
Marissa Benitez-Badua;
3. The Honorable Court of Appeals has decided the
case in a way not in accord with law or with
applicable decisions of the supreme Court, more
particularly, on prescription or laches.
We find no merit to the petition.
Petitioner's insistence on the applicability of Articles 164, 166, 170
and 171 of the Family Code to the case at bench cannot be
sustained. These articles provide:
Art. 164. Children conceived or born during the
marriage of the parents are legitimate.
Children conceived as a result of artificial
insemination of the wife with sperm of the
husband or that of a donor or both are likewise
legitimate children of the husband and his wife,
provided, that both of them authorized or ratified
such insemination in a written instrument
executed and signed by them before the birth of
the child. The instrument shall be recorded in the
civil registry together with the birth certificate of
the child.
Art. 166. Legitimacy of child may be impugned
only on the following grounds:
1) That it was physically impossible for the
husband to have sexual intercourse with his wife
within the first 120 days of the 300 days which
immediately preceded the birth of the child
because of:
a) the physical incapacity of the
husband to have sexual
intercourse with his wife;
b) the fact that the husband and
wife were living separately in
such a way that sexual
intercourse was not possible; or
c) serious illness of the husband,
which absolutely prevented
sexual intercourse.
2) That it is proved that for biological or other
scientific reasons, the child could not have been
that of the husband except in the instance
provided in the second paragraph of Article 164;
or
3) That in case of children conceived through
artificial insemination, the written authorization or
ratification of either parent was obtained through
mistake, fraud, violence, intimidation, or undue
influence.
Art. 170. The action to impugn the legitimacy of
the child shall be brought within one year from the
knowledge of the birth or its recording in the civil
register, if the husband or, in a proper case, any of
his heirs, should reside in the city or municipality
where the birth took place or was recorded.
If the husband or, in his default, all of his heirs do
not reside at the place of birth as defined in the
first paragraph or where it was recorded, the
period shall be two years if they should reside in
the Philippines; and three years if abroad. If the
birth of the child has been concealed from or was
unknown to the husband or his heirs, the period
shall be counted from the discovery or knowledge
of the birth of the child or of the fact of
registration of said birth, which ever is earlier.
Art. 171. The heirs of the husband may impugn the
filiation of the child within the period prescribed in
the preceding Article only in the following case:
1) If the husband should die before the expiration
of the period fixed for bringing his action;
2) If he should die after the filing of the complaint,
without having desisted therefrom; or
3) If the child was born after the death of the
husband.
A careful reading of the above articles will show that they do not
contemplate a situation, like in the instant case, where a child is
alleged not to be the child of nature or biological child of a certain
couple. Rather, these articles govern a situation where a husband
(or his heirs) denies as his own a child of his wife. Thus, under Article
166, it is the husband who can impugn the legitimacy of said child by
proving: (1) it was physically impossible for him to have sexual
intercourse, with his wife within the first 120 days of the 300 days
which immediately preceded the birth of the child; (2) that for
biological or other scientific reasons, the child could not have been
his child; (3) that in case of children conceived through artificial
insemination, the written authorization or ratification by either
parent was obtained through mistake, fraud, violence, intimidation
or undue influence. Articles 170 and 171 reinforce this reading as
they speak of the prescriptive period within which the husband or
any of his heirs should file the action impugning the legitimacy of
said child. Doubtless then, the appellate court did not err when it
refused to apply these articles to the case at bench. For the case at
bench is not one where the heirs of the late Vicente are contending
that petitioner is not his child by Isabel. Rather, their clear
submission is that petitioner was not born to Vicente and Isabel. Our
ruling in Cabatbat-Lim vs. Intermediate Appellate Court, 166 SCRA
451, 457 cited in the impugned decision is apropos, viz.:
Petitioners' recourse to Article 263 of the New
Civil Code [now Article 170 of the Family Code] is
not well-taken. This legal provision refers to an
action to impugn legitimacy. It is inapplicable to
this case because this is not an action to impugn
the legitimacy of a child, but an action of the
private respondents to claim their inheritance as
legal heirs of their childless deceased aunt. They
do not claim that petitioner Violeta Cabatbat Lim
is an illegitimate child of the deceased, but that
 she is not the decedent's child at all. Being neither
legally adopted child, nor an acknowledged
natural child, nor a child by legal fiction of
Esperanza Cabatbat, Violeta is not a legal heir of
the deceased.
We now come to the factual finding of the appellate court that
petitioner was not the biological child or child of nature of the
spouses Vicente Benitez and Isabel Chipongian. The appellate court
exhaustively dissected the evidence of the parties as follows:
. . . And on this issue, we are constrained to say
that appellee's evidence is utterly insufficient to
establish her biological and blood kinship with the
aforesaid spouses, while the evidence on record is
strong and convincing that she is not, but that said
couple being childless and desirous as they were
of having a child, the late Vicente O. Benitez took
Marissa from somewhere while still a baby, and
without he and his wife's legally adopting her
treated, cared for, reared, considered, and loved
her as their own true child, giving her the status as
not so, such that she herself had believed that she
was really their daughter and entitled to inherit
from them as such.
The strong and convincing evidence referred to us are the following:
First, the evidence is very cogent and clear that
Isabel Chipongian never became pregnant and,
therefore, never delivered a child. Isabel's own
only brother and sibling, Dr. Lino Chipongian,
admitted that his sister had already been married
for ten years and was already about 36 years old
and still she has not begotten or still could not
bear a child, so that he even had to refer her to
the late Dr. Constantino Manahan, a well-known
and eminent obstetrician-gynecologist and the OB
of his mother and wife, who treated his sister for a
number of years. There is likewise the testimony
of the elder sister of the deceased Vicente O.
Benitez, Victoria Benitez Lirio, who then, being a
teacher, helped him (he being the only boy and
the youngest of the children of their widowed
mother) through law school, and whom Vicente
and his wife highly respected and consulted on
family matters, that her brother Vicente and his
wife Isabel being childless, they wanted to adopt
her youngest daughter and when she refused,
they looked for a baby to adopt elsewhere, that
Vicente found two baby boys but Isabel wanted a
baby girl as she feared a boy might grow up unruly
and uncontrollable, and that Vicente finally
brought home a baby girl and told his elder sister
Victoria he would register the baby as his and his
wife's child. Victoria Benitez Lirio was already 77
years old and too weak to travel and come to
court in San Pablo City, so that the taking of her
testimony by the presiding judge of the lower
court had to be held at her residence in
Parañaque, MM. Considering, her advanced age
and weak physical condition at the time she
testified in this case, Victoria Benitez Lirio's
testimony is highly trustworthy and credible, for as
one who may be called by her Creator at any time,
she would hardly be interested in material things
anymore and can be expected not to lie, especially
under her oath as a witness. There were also
several disinterested neighbors of the couple
Vicente O. Benitez and Isabel Chipongian in
Nagcarlan, Laguna (Sergio Fule, Cecilia Coronado,
and Benjamin C. Asendido) who testified in this
case and declared that they used to see Isabel
almost everyday especially as she had drugstore in
the ground floor of her house, but they never saw
her to have been pregnant, in 1954 (the year
appellee Marissa Benitez was allegedly born,
according to her birth certificate Exh. "3") or at
any time at all, and that it is also true with the rest
of their townmates. Ressureccion A. Tuico, Isabel
Chipongian's personal beautician who used to set
her hair once a week at her (Isabel's) residence,
likewise declared that she did not see Isabel ever
become pregnant, that she knows that Isabel
never delivered a baby, and that when she saw the
baby Marissa in her crib one day she went to
Isabel's house to set the latter's hair, she was
surprised and asked the latter where the baby
came from, and "she told me that the child was
brought by Atty. Benitez and told me not to tell
about it" (p. 10, tsn, Nov. 29, 1990).
The facts of a woman's becoming pregnant and
growing big with child, as well as her delivering a
baby, are matters that cannot be hidden from the
public eye, and so is the fact that a woman never
became pregnant and could not have, therefore,
delivered a baby at all. Hence, if she is suddenly
seen mothering and caring for a baby as if it were
her own, especially at the rather late age of 36
(the age of Isabel Chipongian when appellee
Marissa Benitez was allegedly born), we can be
sure that she is not the true mother of that baby.
Second, appellee's birth certificate Exh. "3" with
the late Vicente O. Benitez appearing as the
informant, is highly questionable and suspicious.
For if Vicente's wife Isabel, who wads already 36
years old at the time of the child's supposed birth,
was truly the mother of that child, as reported by
Vicente in her birth certificate, should the child
not have been born in a hospital under the
experienced, skillful and caring hands of Isabel's
obstetrician-gynecologist Dr. Constantino
Manahan, since delivery of a child at that late age
by Isabel would have been difficult and quite risky
to her health and even life? How come, then, that
as appearing in appellee's birth certificate, Marissa
was supposedly born at the Benitez home in
Avenida Rizal, Nagcarlan, Laguna, with no
physician or even a midwife attending?
At this juncture, it might be meet to mention that
it has become a practice in recent times for people
who want to avoid the expense and trouble of a
judicial adoption to simply register the child as
their supposed child in the civil registry. Perhaps
Atty. Benitez, though a lawyer himself, thought
that he could avoid the trouble if not the expense
of adopting the child Marissa through court
proceedings by merely putting himself and his wife
as the parents of the child in her birth certificate.
Or perhaps he had intended to legally adopt the
child when she grew a little older but did not come
around doing so either because he was too busy
or for some other reason. But definitely, the mere
registration of a child in his or her birth certificate
as the child of the supposed parents is not a valid
adoption, does not confer upon the child the
status of an adopted child and the legal rights of
such child, and even amounts of simulation of the
child's birth or falsification of his or her birth
certificate, which is a public document.
Third, if appellee Marissa Benitez is truly the real,
biological daughter of the late Vicente O. Benitez
and his wife Isabel Chipongian, why did he and
Isabel's only brother and sibling Dr. Nilo
Chipongian, after Isabel's death on April 25, 1982,
state in the extrajudicial settlement
Exh. "E" that they executed her estate, "that we
are the sole heirs of the deceased ISABEL
CHIPONGIAN because she died without
descendants or ascendants?" Dr. Chipongian,
placed on a witness stand by appellants, testified
that it was his brother-in-law Atty. Vicente O.
Benitez who prepared said document and that he
signed the same only because the latter told him
to do so (p. 24, tsn, Nov. 22, 1990). But why would
Atty. Benitez make such a statement in said
document, unless appellee Marissa Benitez is not
really his and his wife's daughter and descendant
and, therefore, not his deceased wife's legal heir?
As for Dr. Chipongian, he lamely explained that he
signed said document without understanding
completely the meaning of the words "descendant
and ascendant" (p. 21, tsn, Nov. 22, 1990). This we
cannot believe, Dr. Chipongian being a practicing
pediatrician who has even gone to the United
States (p. 52, tsn, Dec. 13, 1990). Obviously,
Dr. Chipongian was just trying to protect the
interests of appellee, the foster-daughter of his
deceased sister and brother-in-law, as against
those of the latter's collateral blood relatives.
Fourth, it is likewise odd and strange, if appellee
Marissa Benitez is really the daughter and only
legal heir of the spouses Vicente O. Benitez and
Isabel Chipongian, that the latter, before her
death, would write a note to her husband and
Marissa stating that:
even without any legal papers, I
wish that my husband and my
child or only daughter will inherit
what is legally my own property,
in case I die without a will,
and in the same handwritten note, she even implored her
husband —
that any inheritance due him
from my property — when he
die — to make our own daughter
his sole heir. This do [sic] not
mean what he legally owns or
his inherited property. I leave
him to decide for himself
regarding those.
(Exhs. "F-1", "F-1-A" and "F-1-B")
We say odd and strange, for if Marissa Benitez is
really the daughter of the spouses Vicente O.
Benitez and Isabel Chipongian, it would not have
been necessary for Isabel to write and plead for
the foregoing requests to her husband, since
Marissa would be their legal heir by operation of
law. Obviously, Isabel Chipongian had to implore
and supplicate her husband to give appellee
although without any legal papers her properties
when she dies, and likewise for her husband to
give Marissa the properties that he would inherit
from her (Isabel), since she well knew that Marissa
is not truly their daughter and could not be their
legal heir unless her (Isabel's) husband makes her
so.
Finally, the deceased Vicente O. Benitez' elder
sister Victoria Benitez Lirio even testified that her
brother Vicente gave the date
December 8 as Marissa's birthday in her birth
certificate because that date is the birthday of
their (Victoria and Vicente's) mother. It is indeed
too much of a coincidence for the child Marissa
and the mother of Vicente and Victoria to have
the same birthday unless it is true, as Victoria
testified, that Marissa was only registered by
Vicente as his and his wife's child and that they
gave her the birth date of Vicente's mother.
We sustain these findings as they are not unsupported by the
evidence on record. The weight of these findings was not negated
by documentary evidence presented by the petitioner, the most
notable of which is her Certificate of Live Birth (Exh. "3")
purportedly showing that her parents were the late
Vicente Benitez and Isabel Chipongian. This Certificate registered on
December 28, 1954 appears to have been signed by the deceased
Vicente Benitez. Under Article 410 of the New Civil Code, however,
"the books making up the Civil Registry and all documents relating
thereto shall be considered public documents and shall be prima
facie evidence of the facts therein stated." As related above, the
totality of contrary evidence, presented by the private respondents
sufficiently rebutted the truth of the content of petitioner's
Certificate of Live Birth. of said rebutting evidence, the most telling
was the Deed of Extra-Judicial Settlement of the Estate of the
Deceased Isabel Chipongian (Exh. "E") executed on July 20, 1982 by
Vicente Benitez, and
Dr. Nilo Chipongian, a brother of Isabel. In their notarized
document, they stated that "(they) are the sole heirs of the
deceased Isabel Chipongian because she died without descendants
or ascendants". In executing this Deed, Vicente Benitez effectively
repudiated the Certificate of Live Birth of petitioner where it
appeared that he was petitioner's father. The repudiation was made
twenty-eight years after he signed petitioner's Certificate of Live
Birth.
IN VIEW WHEREOF, the petition for review is dismissed for lack of
merit. Costs against petitioner.
SO ORDERED.
THIRD DIVISION
September 28, 2015
G.R. No. 197099
EUGENIO SAN JUAN GERONIMO, Petitioner,
vs.
KAREN SANTOS, Respondent.
DECISION
VILLARAMA, JR., J.:
At bar is a petition for review on certiorari of the Decision 1 and
Resolution2 of the Court of Appeals (CA) in CA-G.R. CV No. 88650
promulgated on January 17, 2011 and May 24, 2011, respectively,
which affirmed the Decision3 of the Regional Trial Court (RTC) of
Malolos City, Bulacan, Branch 8. Both courts a quo ruled that the
subject document titled Pagmamana sa Labas ng Hukuman is null
and void, and ordered herein petitioner Eugenio San Juan Geronimo
(Eugenio), who was previously joined by his brother Emiliano San
Juan Geronimo (Emiliano) as codefendant, to vacate the one-half
portion of the subject 6,542-square meter property and surrender
its possession to respondent Karen Santos. In a Resolution 4 dated
November 28, 2011, this Court ordered the deletion of the name of
Emiliano from the title of the instant petition_ as co-petitioner, viz.:
x x x The Court resolves:
xxxx
(2) to AMEND the title of this petition to read "Eugenio San Juan
Geronimo, petitioner vs. Karen Santos, respondent," considering the
sworn statement of Eugenio San Juan Geronimo that he does not
know whether his brother is still alive and that his brother did not
verify the instant petition; x x x5
The following facts were found by the trial court and adopted by the
appellate court in its assailed Decision, viz.:
On April 17, 2001, plaintiff Karen Santos, claiming to be the only
child of deceased Rufino and Caridad Geronimo filed a complaint for
annulment of document and recovery of possession against the
defendants Eugenio and Emiliano Geronimo who are the brothers of
her father. She alleged that with the death of her parents, the
property consisting of one half of the parcel of land located at San
Jose, Paombong, Bulacan with Tax Declaration No. 99-02017-00219
and belonging to her parents was passed on to her by the law on
intestacy; that lately, she discovered that defendants executed a
document entitled Pagmamana sa Labas ng Hukuman declaring
themselves as the only heirs of spouses Rufino and Caridad and
adjudicating to themselves the property in question; and that
consequently[,] they took possession and were able to transfer the
tax declaration of the subject property to their names. She prayed
that the document Exhibit C be annulled and the tax declaration of
the land transferred to her, and that the defendants vacate the
property and pay her damages.
In an amended answer, the defendants denied the allegation that
plaintiff was the only child and sole heir of their brother. They
disclosed that the deceased Rufino and Caridad Geronimo were
childless and took in as their ward the plaintiff who was in truth, the
child of Caridad’s sister. They claimed that the birth certificate of the
plaintiff was a simulated document. It was allegedly impossible for
Rufino and Caridad to have registered the plaintiff in Sta. Maria,
Ilocos Sur because they had never lived or sojourned in the place
and Caridad, who was an elementary teacher in Bulacan never filed
any maternity leave during the period of her service from August
1963 until October 1984.
The plaintiff took the stand and testified that her parents were
Rufino and Caridad Geronimo. The defendants Eugenio and Emiliano
were the half-brothers of her father Rufino, being the children of
Rufino’s father Marciano Geronimo with another woman Carmen
San Juan. Rufino co-owned Lot 1716 with the defendants’ mother
Carmen, and upon his death in 1980, when the plaintiff was only 8
years old, his share in the property devolved on his heirs. In 1998,
some 18 years later, Caridad and she executed an extra-judicial
settlement of Rufino’s estate entitled Pagmamanahan Sa Labas ng
Hukuman Na May Pagtalikod Sa Karapatan, whereby the plaintiff’s
mother Caridad waived all her rights to Rufino’s share and in the
land in question to her daughter the plaintiff. Be that as it may, in
1985, guardianship proceedings appeared to have been instituted
with the Regional Trial Court of Malolos by Caridad in which it was
established that the plaintiff was the minor child of Caridad with her
late husband Rufino. Caridad was thus appointed guardian of the
person and estate of the plaintiff.
The plaintiff further declared that she and her mother had been
paying the real estate taxes on the property, but in 2000, the
defendants took possession of the land and had the tax declaration
transferred to them. This compelled her to file the present case.
Eugenio Geronimo, the defendant, disputes the allegation that the
plaintiff is the only child and legal heir of his brother Rufino. He
disclosed that when Rufino’s wife could not bear a child, the couple
decided to adopt the plaintiff who was Caridad’s niece from Sta.
Maria, Ilocos Sur. It was in 1972, 13 years after the marriage, when
Karen joined her adoptive parents’ household. Believing that in the
absence of a direct heir, his brother Emiliano and he should succeed
to the estate of their brother, they executed in 2000 an extra-
judicial settlement called
Pagmamana sa Labas ng Hukuman.
Eugenio was able to obtain a copy of the plaintiff’s alleged birth
certificate. It had irregular features, such as that it was written in
pentel pen, the entry in the box date of birth was erased and the
word and figure April 6, 1972 written and the name Emma
Daño was superimposed on the entry in the box intended for the
informant’s signature.
Two more witnesses were adduced. Atty. Elmer Lopez, a legal
consultant of the DECS in Bulacan brought the plaintiff's service
record as an elementary school teacher at Paombong[,] Bulacan to
show that she did not have any maternity leave during the period of
her service from March 11, 1963 to October 24, 1984, and a
certification from the Schools Division Superintendent that the
plaintiff did not file any maternity leave during her service. He
declared that as far as the service record is concerned, it reflects the
entry and exit from the service as well as the leaves that she availed
of. Upon inquiry by the court, he clarified that the leaves were
reflected but the absences were not. Testifying on the plaintiff’s
birth certificate, Exhibit 14, Arturo Reyes, a representative of the
NSO, confirmed that there was an alteration in the date of birth and
signature of the informant. In view of the alterations, he considered
the document questionable.6
On October 27, 2006, the trial court ruled in favor of
respondent, viz.:
WHEREFORE, judgment is hereby rendered as follows:
1. Declaring the document Pagmamana sa Labas ng
Hukuman dated March 9, 2000 executed in favor of
Eugenio San Juan-Geronimo and Emilio San Juan-Geronimo
as null and void;
2. Annulling Tax Declaration No. 99-02017-01453 of the
subject property in the names of Eugenio San Juan-
Geronimo and Emiliano San Juan-Geronimo;
3. Ordering defendants Eugenio San Juan-Geronimo and
Emiliano San Juan-Geronimo to vacate the ½ portion of the
subject property and to surrender the possession to the
plaintiff;
4. Ordering the defendants to pay the plaintiff the amount
of [P]30,000.00 as attorney’s fees;
5. To pay the costs of the suit.
SO ORDERED.7
The trial court ruled that respondent is the legal heir – being the
legitimate child – of the deceased spouses Rufino and Caridad
Geronimo (spouses Rufino and Caridad). It found that respondent’s
filiation was duly established by the certificate of live birth which
was presented in evidence. The RTC dismissed the claim of
petitioner that the birth certificate appeared to have been
tampered, specifically on the entries pertaining to the date of birth
of respondent and the name of the informant. The trial court held
that petitioner failed to adduce evidence to explain how the
erasures were done. Petitioner also failed to prove that the
alterations were due to the fault of respondent or another person
who was responsible for the act. In the absence of such contrary
evidence, the RTC relied on the prima faciepresumption of the
veracity and regularity of the birth certificate as a public document.
The trial court further stated that even granting arguendo that the
birth certificate is questionable, the filiation of respondent has
already been sufficiently proven by evidence of her open and
continuous possession of the status of a legitimate child under
Article 172 of the Family Code of the Philippines. The RTC
considered the following overt acts of the deceased spouses as acts
of recognition that respondent is their legitimate child: they sent her
to school and paid for her tuition fees; Caridad made respondent a
beneficiary of her burial benefits from the Government Service
Insurance System; and, Caridad filed a petition for guardianship of
respondent after the death of her husband Rufino. Lastly, the trial
court held that to be allowed to impugn the filiation and status of
respondent, petitioner should have brought an action for the
purpose under Articles 170 and 171 of the Family Code. Since
petitioner failed to file such action, the trial court ruled that
respondent alone is entitled to the ownership and possession of the
subject land owned by Rufino. The extrajudicial settlement executed
by petitioner and his brother was therefore declared not valid and
binding as respondent is Rufino’s only compulsory heir.
On appeal, petitioner raised the issue on the alterations in the birth
certificate of respondent and the offered evidence of a mere
certification from the Office of the Civil Registry instead of the birth
certificate itself.
According to petitioner, respondent’s open and continuous
possession of the status of a legitimate child is only secondary
evidence to the birth certificate itself. Respondent questioned if it
was legally permissible for petitioner to question her filiation as a
legitimate child of the spouses Rufino and Caridad in the same
action for annulment of document and recovery of possession that
she herself filed against petitioner and his then co-defendant.
Respondent argued that the conditions enumerated under Articles
170 and 171 of the Family Code, giving the putative father and his
heirs the right to bring an action to impugn the legitimacy of the
child, are not present in the instant case. She further asserted that
the Family Code contemplates a direct action, thus her civil status
may not be assailed indirectly or collaterally in this suit.
In the assailed Decision dated January 17, 2011, the appellate court
held that under Article 170, the action to impugn the legitimacy of
the child must be reckoned from either of these two dates: the date
the child was born to the mother during the marriage, or the date
when the birth of such child was recorded in the civil registry. The
CA found no evidence or admission that Caridad indeed gave birth
to respondent on a specific date. It further resolved that the birth
certificate presented in this case, Exhibit 14, does not qualify as the
valid registration of birth in the civil register as envisioned by the
law, viz.:
x x x The reason is that under the statute establishing the civil
register, Act No. 3753, the declaration of the physician or midwife
in attendance at the birth or in default thereof, that declaration of
either parent of the newborn child, shall be sufficient for the
registration of birth in the civil register. The document in question
was signed by one Emma Daño who was not identified as either the
parent of the plaintiff or the physician or midwife who attended to
her birth. Exhibit 14, legally, cannot be the birth certificate
envisioned by the law; otherwise, with an informant as shadowy as
Emma Daño, the floodgates to spurious filiations will be opened.
Neither may the order of the court Exhibit E be treated as the final
judgment mentioned in Article 172 as another proof of filiation.
The final judgment mentioned refers to a decision of a competent
court finding the child legitimate. Exhibit G is merely an order
granting letters of guardianship to the parent Caridad based on her
representations that she is the mother of the plaintiff.8
Noting the absence of such record of birth, final judgment or
admission in a public or private document that respondent is the
legitimate child of the spouses Rufino and Caridad, the appellate
court – similar to the trial court – relied on Article 172 of the Family
Code which allows the introduction and admission of secondary
evidence to prove one’s legitimate filiation via open and continuous
possession of the status of a legitimate child. The CA agreed with
the trial court that respondent has proven her legitimate
filiation, viz.:
We agree with the lower court that the plaintiff has proven her
filiation by open and continuous possession of the status of a
legitimate child. The evidence consists of the following: (1) the
plaintiff was allowed by her putative parents to bear their family
name Geronimo; (2) they supported her and sent her to school
paying for her tuition fees and other school expenses; (3) she was
the beneficiary of the burial benefits of Caridad before the GSIS; (4)
after the death of Rufino, Caridad applied for and was appointed
legal guardian of the person and property of the plaintiff from the
estate left by Rufino; and (5) both Caridad and the plaintiff executed
an extrajudicial settlement of the estate of Rufino on the basis of
the fact that they are both the legal heirs of the deceased.
It is clear that the status enjoyed by the plaintiff as the legitimate
child of Rufino and Caridad has been open and continuous. x x x The
conclusion follows that the plaintiff is entitled to the property left by
Rufino to the exclusion of his brothers, the defendants, which
consists of a one-half share in Lot 1716.9
Petitioners moved for reconsideration10 but the motion was denied
in the assailed Resolution dated May 24, 2011. Hence, this petition
raising the following assignment of errors:
I. THAT THE COURT OF APPEALS GRAVELY ERRED AND
ABUSED ITS DISCRETION, AMOUNTING TO LACK OF
JURISDICTION, WHEN IT ALLOWED THE INTRODUCTION OF
SECONDARY EVIDENCE AND RENDERED JUDGMENT BASED
THEREON NOTWITHSTANDING THE EXISTENCE OF PRIMARY
EVIDENCE OF BIRTH CERTIFICATE [EXHIBIT 14].
II. THAT THE COURT OF APPEALS GRAVELY ERRED AND
ABUSED ITS DISCRETION, AMOUNTING TO LACK OF
JURISDICTION WHEN IT RULED THAT PETITIONERS HAVE
NO PERSONALITY TO IMPUGN RESPONDENT’S LEGITIMATE
FILIATION.11
On the first issue, petitioner argues that secondary evidence to
prove one’s filiation is admissible only if there is no primary
evidence, i.e, a record of birth or an authentic admission in
writing.12 Petitioner asserts that herein respondent’s birth
certificate, Exhibit 14, constitutes the primary evidence enumerated
under Article 172 of the Family Code and the ruling of both courts a
quo that the document is not the one "envisioned by law" should
have barred the introduction of secondary evidence. Petitioner
expounds this proposition, viz.:
The findings of the courts a quo that the birth certificate [Exhibit 14]
is not [the] one envisioned by law finds support in numerous cases
decided by the Honorable Supreme Court. Thus, a certificate of live
birth purportedly identifying the putative father is not competent
evidence as to the issue of paternity, when there is no showing that
the putative father had a hand in the preparation of said
certificates, and the Local Civil Registrar is devoid of authority to
record the paternity of an illegitimate child upon the information of
a third person. Where the birth certificate and the baptismal
certificate are per se inadmissible in evidence as proof of filiation,
they cannot be admitted indirectly as circumstantial evidence to
prove the same. x x x
x x x The birth certificate Exhibit 14 contains erasures. The date of
birth originally written in ball pen was erased and the date April 6,
1972 was superimposed using a pentel pen; the entry on the
informant also originally written in ball pen was erased and the
name E. Dano was superimposed using also a pentel pen; there is no
signature as to who received it from the office of the registry.
Worst, respondent Karen confirms the existence of her birth
certificate when she introduced in evidence [Exhibit A] a mere
Certification from the Office of the Local Civil Registrar of Sta. Maria,
Ilocos Sur, which highlighted more suspicions of its existence, thus
leading to conclusion and presumption that if such evidence is
presented, it would be adverse to her claim. True to the suspicion,
when Exhibit 14 was introduced by the petitioner and testified on by
no less than the NSO representative, Mr. Arturo Reyes, and
confirmed that there were alterations which renders the birth
certificate questionable.
Argued differently, with the declaration that the birth certificate is a
nullity or falsity, the courts a quo should have stopped there, ruled
that respondent Karen is not the child of Rufino, and therefore not
entitled to inherit from the estate.13
On the second issue, petitioner alleges that the CA gravely erred and
abused its discretion amounting to lack of jurisdiction when it ruled
that he does not have personality to impugn respondent’s
legitimate filiation.14
While petitioner admits that the CA "did not directly rule on this
particular issue,"15 he nonetheless raises the said issue as an error
since the appellate court affirmed the decision of the trial court.
Petitioner argues that in so affirming, the CA also adopted the ruling
of the trial court that the filiation of respondent is strictly personal
to respondent’s alleged father and his heirs under Articles 170 and
171 of the Family Code,16 thereby denying petitioner the "right to
impugn or question the filiation and status of the
plaintiff."17 Petitioner argues, viz.:
x x x [T]he lower court’s reliance on Articles 170 and 171 of the
Family Code is totally misplaced, with due respect. It should be read
in conjunction with the other articles in the same chapter on
paternity and filiation of the Family Code. A careful reading of said
chapter would reveal that it contemplates situations where a doubt
exists that a child is indeed a man’s child, and the father [or, in
proper cases, his heirs] denies the child’s filiation. It does not refer
to situations where a child is alleged not to be the child at all of a
particular couple. Petitioners are asserting not merely that
respondent Karen is not a legitimate child of, but that she is not a
child of Rufino Geronimo at all. x x x18
We grant the petition.
Despite its finding that the birth certificate which respondent
offered in evidence is questionable, the trial court ruled that
respondent is a legitimate child and the sole heir of deceased
spouses Rufino and Caridad. The RTC based this conclusion on
secondary evidence that is similar to proof admissible under the
second paragraph of Article 172 of the Family Code to prove the
filiation of legitimate children, viz.:
ART. 172. The filiation of legitimate children is established by any of
the following:
(1) The record of birth appearing in the civil register or a
final judgment; or
(2) An admission of legitimate filiation in a public document
or a private handwritten instrument and signed by the
parent concerned.
In the absence of the following evidence, the legitimate filiation
shall be proved by:
 (1) The open and continuous possession of the status of a
legitimate child; or
(2) Any other means allowed by the Rules of Court and
special laws.
Petitioner argues that such secondary evidence may be admitted
only in a direct action under Article 172 because the said provision
of law is meant to be instituted as a separate action, and proof of
filiation cannot be raised as a collateral issue as in the instant case
which is an action for annulment of document and recovery of
possession.
Petitioner is correct that proof of legitimacy under Article 172, or
illegitimacy under Article 175, should only be raised in a direct and
separate action instituted to prove the filiation of a child. The
rationale behind this procedural prescription is stated in the case
of Tison v. Court of Appeals,19 viz.:
x x x [W]ell settled is the rule that the issue of legitimacy cannot be
attacked collaterally.
The rationale for these rules has been explained in this wise:
"The presumption of legitimacy in the Family Code x x x actually
fixes a civil status for the child born in wedlock, and that civil status
cannot be attacked collaterally. The legitimacy of the child can be
impugned only in a direct action brought for that purpose, by the
proper parties, and within the period limited by law.
The legitimacy of the child cannot be contested by way of defense
or as a collateral issue in another action for a different
purpose. The necessity of an independent action directly impugning
the legitimacy is more clearly expressed in the Mexican Code
(Article 335) which provides: ‘The contest of the legitimacy of a child
by the husband or his heirs must be made by proper complaint
before the competent court; any contest made in any other way is
void.’ This principle applies under our Family Code. Articles 170 and
171 of the code confirm this view, because they refer to "the action
to impugn the legitimacy."
This action can be brought only by the husband or his heirs and
within the periods fixed in the present articles.
Upon the expiration of the periods provided in Article 170, the
action to impugn the legitimacy of a child can no longer be brought.
The status conferred by the presumption, therefore, becomes fixed,
and can no longer be questioned.1âwphi1 The obvious intention of
the law is to prevent the status of a child born in wedlock from
being in a state of uncertainty for a long time. It also aims to force
early action to settle any doubt as to the paternity of such child, so
that the evidence material to the matter, which must necessarily be
facts occurring during the period of the conception of the child, may
still be easily available.
xxxx
Only the husband can contest the legitimacy of a child born to his
wife. He is the one directly confronted with the scandal and ridicule
which the infidelity of his wife produces; and he should decide
whether to conceal that infidelity or expose it, in view of the moral
and economic interest involved. It is only in exceptional cases that
his heirs are allowed to contest such legitimacy. Outside of these
cases, none – even his heirs – can impugn legitimacy; that would
amount to an insult to his memory."20
What petitioner failed to recognize, however, is that this procedural
rule is applicable only to actions where the legitimacy – or
illegitimacy – of a child is at issue. This situation does not obtain in
the case at bar.
In the instant case, the filiation of a child – herein respondent – is
not at issue. Petitioner does not claim that respondent is not the
legitimate child of his deceased brother Rufino and his wife Caridad.
What petitioner alleges is that respondent is not the child of the
deceased spouses Rufino and Caridad at all. He proffers this
allegation in his Amended Answer before the trial court by way of
defense that respondent is not an heir to his brother Rufino. When
petitioner alleged that respondent is not a child of the deceased
spouses Rufino and Caridad in the proceedings below, jurisprudence
shows that the trial court was correct in admitting and ruling on the
secondary evidence of respondent – even if such proof is similar to
the evidence admissible under the second paragraph of Article 172
and despite the instant case not being a direct action to prove one’s
filiation. In the following cases, the courts a quo and this Court did
not bar the introduction of secondary evidence in actions which
involve allegations that the opposing party is not the child of a
particular couple – even if such evidence is similar to the kind of
proof admissible under the second paragraph of Article 172.
In the 1994 case of Benitez-Badua v. Court of Appeals,21 therein
deceased spouses Vicente Benitez (Vicente) and Isabel Chipongian
(Isabel) owned various properties while they were still living. Isabel
departed in 1982, while Vicente died intestate in 1989. In 1990,
Vicente’s sister (Victoria Benitez-Lirio) and nephew (Feodor Benitez
Aguilar) instituted an action before the trial court for the issuance of
letters of administration of his estate in favor of Feodor. In the said
proceedings, they alleged that Vicente was "survived by no other
heirs or relatives be they ascendants or descendants, whether
legitimate, illegitimate or legally adopted x x x."22 They further
argued that one "Marissa Benitez[-]Badua who was raised and cared
for by them since childhood is, in fact, not related to them by blood,
nor legally adopted, and is therefore not a legal heir [of
Vicente]."23 Marissa opposed the petition and proffered evidence to
prove that she is an heir of Vicente. Marissa submitted the following
evidence, viz.:
1. her Certificate of Live Birth (Exh. 3);
2. Baptismal Certificate (Exh. 4);
3. Income Tax Returns and Information Sheet for
Membership with the GSIS of the late Vicente naming her
as his daughter (Exhs. 10 to 21); and
4. School Records (Exhs. 5 & 6).
She also testified that the said spouses reared and continuously
treated her as their legitimate daughter.24
Feodor and his mother Victoria offered mostly testimonial evidence
to show that the spouses Vicente and Isabel failed to beget a child
during their marriage. They testified that the late Isabel, when she
was 36 years old, was even referred to an obstetrician-gynecologist
for treatment. Victoria, who was 77 years old at the time of her
testimony, also categorically stated that Marissa was not the
biological child of the said spouses who were unable to physically
procreate.25
The trial court, relying on Articles 166 and 170 of the Family Code,
declared Marissa as the legitimate daughter and sole heir of the
spouses Vicente and Isabel. The appellate court reversed the RTC’s
ruling holding that the trial court erred in applying Articles 166 and
170 of the Family Code. On appeal to this Court, we affirmed the
reversal made by the appellate court, viz.:
A careful reading of the above articles will show that they do not
contemplate a situation, like in the instant case, where a child is
alleged not to be the child of nature or biological child of a certain
couple.
Rather, these articles govern a situation where a husband (or his
heirs) denies as his own a child of his wife. Thus, under Article 166, it
is the husband who can impugn the legitimacy of said child by
proving: (1) it was physically impossible for him to have sexual
intercourse, with his wife within the first 120 days of the 300 days
which immediately preceded the birth of the child; (2) that for
biological or other scientific reasons, the child could not have been
his child; (3) that in case of children conceived through artificial
insemination, the written authorization or ratification by either
parent was obtained through mistake, fraud, violence, intimidation
or undue influence. Articles 170 and 171 reinforce this reading as
they speak of the prescriptive period within which the husband or
any of hisheirs should file the action impugning the legitimacy of
said child. Doubtless then, the appellate court did not err when it
refused to apply these articles to the case at bench. For the case at
bench is not one where the heirs of the late Vicente are
contending that petitioner is not his child by Isabel. Rather, their
clear submission is that petitioner was not born to Vicente and
Isabel. Our ruling in Cabatbat- Lim vs. Intermediate Appellate Court,
166 SCRA 451, 457 cited in the impugned decision is apropos, viz:
"Petitioners’ recourse to Article 263 of the New Civil Code [now Art.
170 of the Family Code] is not welltaken.
This legal provision refers to an action to impugn legitimacy. It is
inapplicable to this case because this is not an action to impugn the
legitimacy of a child, but an action of the private respondents to
claim their inheritance as legal heirs of their childless deceased
aunt. They do not claim that petitioner Violeta Cabatbat Lim is an
illegitimatechild of the deceased, but that she is not the
decedent's child at all. Being neither legally adopted child, nor an
acknowledged natural child, nor a child by legal fiction of Esperanza
Cabatbat, Violeta is not a legal heir of the deceased."26
Similarly, the 2001 case of Labagala v. Santiago27 originated from a
complaint for recovery of title, ownership and possession before the
trial court. Respondents therein contended that petitioner is not the
daughter of the decedent Jose and sought to recover from her the
1/3 portion of the subject property pertaining to Jose but which
came into petitioner’s sole possession upon Jose’s death.
Respondents sought to prove that petitioner is not the daughter of
the decedent as evidenced by her birth certificate which did not
itself indicate the name of Jose as her father. Citing the case
of Sayson v. Court of Appeals and Article 263 of the Civil Code (now
Article 170 of the Family Code),28petitioner argued that respondents
cannot impugn her filiation collaterally since the case was not an
action impugning a child’s legitimacy but one for recovery of title,
ownership and possession of property. We ruled in this case that
petitioner’s reliance on Article 263 of the Civil Code is misplaced and
respondents may impugn the petitioner’s filiation in an action for
recovery of title and possession. Thus, we affirmed the ruling of the
appellate court that the birth certificate of petitioner Labagala
proved that she "was born of different parents, not Jose and his
wife."29 Citing the aforecited cases of Benitez-Badua and Lim v.
Intermediate Appellate Court,30 we stated, viz.:
This article should be read in conjunction with the other articles in
the same chapter on paternity and filiation in the Civil Code. A
careful reading of said chapter would reveal that it contemplates
situations where a doubt exists that a child is indeed a man’s child
by his wife, and the husband (or, in proper cases, his heirs) denies
the child’s filiation. It does not refer to situations where a child is
alleged not to be the child at all of a particular couple.31
Article 263 refers to an action to impugn the legitimacy of a child, to
assert and prove that a person is not a man’s child by his
wife. However, the present case is not one impugning
petitioner’s legitimacy. Respondents are asserting not merely that
petitioner is not a legitimate child of Jose, but that she is not a
child of Jose at all.
x x x32
Be that as it may, even if both courts a quo were correct in
admitting secondary evidence similar to the proof admissible under
Article 172 of the Family Code in this action for annulment of
document and recovery of possession, we are constrained to rule
after a meticulous examination of the evidence on record that all
proof points to the conclusion that herein respondent is not a child
of the deceased spouses Rufino and Caridad.
While we ascribe to the general principle that this Court is not a trier
of facts,33 this rule admits of the following exceptions where findings
of fact may be passed upon and reviewed by this Court, viz.:
(1) When the conclusion is a finding grounded entirely on
speculation, surmises or conjectures (Joaquin v. Navarro, 93 Phil.
257 [1953]); (2) When the inference made is manifestly mistaken,
absurd or impossible (Luna v. Linatok, 74 Phil. 15 [1942]); (3) Where
there is a grave abuse of discretion (Buyco v. People, 95 Phil. 453
[1955]); (4)
When the judgment is based on a misapprehension of facts (Cruz v.
Sosing, L-4875, Nov. 27, 1953); (5) When the findings of fact
areconflicting (Casica v. Villaseca, L-9590 Ap. 30, 1957; unrep.); (6)
Whenthe Court of Appeals, in making its findings, went beyond the
issues of thecase and the same is contrary to the admissions of both
appellant andappellee (Evangelista v. Alto Surety and Insurance Co.,
103 Phil. 401[1958]); (7) The findings of the Court of Appeals are
contrary to those ofthe trial court (Garcia v. Court of Appeals, 33
SCRA 622 [1970]; Sacay v. Sandiganbayan, 142 SCRA 593 [1986]); (8)
When the findings of fact are conclusions without citation of specific
evidence on which they are based (Ibid.,); (9) When the facts set
forth in the petition as well as in the petitioners’ main and reply
briefs are not disputed by the respondents (Ibid.,); and (10) The
finding of fact of the Court of Appeals is premised on the supposed
absence of evidence and is contradicted by the evidence on record
(Salazar v. Gutierrez, 33 SCRA 242 [1970]).34
It is clear in the case at bar that the ruling of both courts a
quo declaring respondent as a legitimate child and sole heir of the
deceasedspouses Rufino and Caridad is one based on a
misapprehension of facts.
A mere cursory reading of the birth certificate of respondent would
show that it was tampered specifically on the entries pertaining to
the date of birth of respondent and the name of the informant.
Using pentel ink, the date of birth of respondent – April 6, 1972 –
and the name of the informant – Emma Daño – were both
superimposed on the document. Despite these glaring erasures, the
trial court still relied on the prima facie presumption of the veracity
and regularity of the birth certificate for failure of petitioner to
explain how the erasures were done and if the alterations were due
to the fault of respondent. It thus ruled that respondent’s filiation
was duly established by the birth certificate. The appellate court did
not agree with this finding and instead ruled that the birth
certificate presented does not qualify as the valid registration of
birth in the civil register as envisioned by the law. We reiterate the
relevant pronouncement of the CA, viz.:
x x x The document in question was signed by one Emma Daño who
was not identified as either the parent of the plaintiff or the
physician or midwife who attended to her birth. Exhibit 14, legally,
cannot be the birth certificate envisioned by the law; otherwise,
with an informant as shadowy as Emma Daño, the floodgates to
spurious filiations will be opened. Neither may the order of the
court Exhibit E be treated as the final judgment mentioned in Article
172 as another proof of filiation. The final judgment mentioned
refers to a decision of a competent court finding the child
legitimate. Exhibit G is merely an order granting letters of
guardianship to the parent Caridad based on her representations
that she is the mother of the plaintiff.35
Nonetheless, the appellate court agreed with the trial court that
respondent has proven her filiation by showing that she has enjoyed
that open and continuous possession of the status of a legitimate
child of the deceased spouses Rufino and Caridad, viz.:
x x x The evidence consists of the following: (1) the plaintiff was
allowed by her putative parents to bear their family
name Geronimo; (2) they supported her and sent her to school
paying for her tuition fees and other school expenses; (3) she was
the beneficiary of the burial benefits of Caridad before the GSIS; (4)
after the death of Rufino, Caridad applied for and was appointed
legal guardian of the person and property of the plaintiff from the
estate left by Rufino; and (5) both Caridad and the plaintiff executed
an extrajudicial settlement of the estate of Rufino on the basis of
the fact that they are both the legal heirs of the deceased. 36
We do not agree with the conclusion of both courts a quo. The
appellate court itself ruled that the irregularities consisting of the
superimposed entries on the date of birth and the name of the
informant made the document questionable. The corroborating
testimony of Arturo Reyes, a representative of the NSO, further
confirmed that the entries on the date of birth and the signature of
the informant are alterations on the birth certificate which rendered
the document questionable. To be sure, even the respondent
herself did not offer any evidence to explain such irregularities on
her own birth certificate. These irregularities and the totality of the
following circumstances surrounding the alleged birth of respondent
are sufficient to overthrow the presumption of regularity attached
to respondent’s birth certificate, viz.:
1. The identity of one Emma Daño, whose name was
superimposed as the informant regarding the birth of
respondent, remains unknown.
2. The testimony of Atty. Elmer De Dios Lopez, a legal
consultant of the Department of Education in Bulacan,
proved that the deceased Caridad did not have any
maternity leave during the period of her service from
March 11, 1963 to October 24, 1984 as shown by her
Service Record as an elementary school teacher at
Paombong, Bulacan. This was corroborated by a
certification from Dr. Teofila R. Villanueva, Schools Division
Superintendent, that she did not file any maternity leave
during her service. No testimonial or documentary
evidence was also offered to prove that the deceased
Caridad ever had a pregnancy.
3. Based on the birth certificate, respondent was born in
1972 or 13 years into the marriage of the deceased spouses
Rufino and Caridad. When respondent was born, Caridad
was already 40 years old. There are no hospital records of
Caridad’s delivery, and while it may have been possible for
her to have given birth at her own home, this could have
been proven by medical or non-medical records or
testimony if they do, in fact, exist.
4. It is worthy to note that respondent was the sole witness
for herself in the instant case.
Finally, we also find that the concurrence of the secondary evidence
relied upon by both courts a quo does not sufficiently establish the
one crucial fact in this case: that respondent is indeed a child of the
deceased spouses. Both the RTC and the CA ruled that respondent is
a legitimate child of her putative parents because she was allowed
to bear their family name "Geronimo", they supported her and her
education, she was the beneficiary of the burial benefits of Caridad
in her GSIS policy, Caridad applied for and was appointed as her
legal guardian in relation to the estate left by Rufino, and she and
Caridad executed an extrajudicial settlement of the estate of Rufino
as his legal heirs.
In the case of Rivera v. Heirs of Romualdo Villanueva37 which
incisively discussed its parallelisms and contrasts with the case
of Benitez- Badua v. Court of Appeals,38 we ruled that the presence
of a similar set of circumstances – which were relied upon as
secondary proof by both courts a quo in the case at bar – does not
establish that one is a child of the putativeparents. Our discussion in
the Rivera case is instructive, viz.:
In Benitez-Badua v. Court of Appeals, Marissa Benitez-Badua, in
attempting to prove that she was the sole heir of the late Vicente
Benitez, submitted a certificate of live birth, a baptismal certificate,
income tax returns and an information sheet for membership in the
Government Service Insurance System of the decedent naming her
as his daughter, and her school records. She also testified that she
had been reared and continuously treated as Vicente’s daughter.
By testimonial evidence alone, to the effect that Benitez-Badua’s
alleged parents had been unable to beget children, the siblings of
Benitez- Badua’s supposed father were able to rebut all of the
documentary evidence indicating her filiation. One fact that was
counted against Benitez-Badua was that her supposed mother
Isabel Chipongian, unable to bear any children even after ten years
of marriage, all of a sudden conceived and gave birth to her at the
age of 36.
Of great significance to this controversy was the following
pronouncement:
But definitely, the mere registration of a child in his or her birth
certificate as the child of the supposed parents is not a valid
adoption, does not confer upon the child the status of an adopted
child and the legal rights of such child, and even amounts to dated January 17, 2011 and May 24, 2011, respectively,
simulation of the child's birth or falsification of his or her birth are REVERSED and SET ASIDE. The Complaint in Civil Case No. 268-
certificate, which is a public document.(emphasis ours) M-2001 for Annulment of Document and Recovery of Possession is
hereby ordered DISMISSED.
Furthermore, it is well-settled that a record of birth is merely
a prima facie evidence of the facts contained therein. It is not With costs against the respondent.
conclusive evidence of the truthfulness of the statements made
there by the interestedparties. Following the logic of Benitez, SO ORDERED.
respondent Angelina and her codefendants in SD-857 should have
adduced evidence of her adoption, in view of the contents of her
birth certificate. The records, however, are bereft of any such
evidence.

There are several parallels between this case and Benitez-

Badua that are simply too compelling to ignore. First, both Benitez-
Baduaand respondent Angelina submitted birth certificates as
evidence offiliation. Second, both claimed to be children of parents
relativelyadvanced in age. Third, both claimed to have been born
after their allegedparents had lived together childless for several
years.

There are, however, also crucial differences

between BenitezBadua and this case which ineluctably support the
conclusion thatrespondent Angelina was not Gonzales' daughter,
whether illegitimate oradopted. Gonzales, unlike Benitez-Badua's
alleged mother Chipongian,was not only 36 years old but 44 years
old, and on the verge of menopauseat the time of the alleged birth.
Unlike Chipongian who had been marriedto Vicente Benitez for only
10 years, Gonzales had been living childlesswith Villanueva for 20
years. Under the circumstances, we hold that it was not sufficiently
established that respondent Angelina was Gonzales' biological
daughter, nor even her adopted daughter. Thus, she cannot inherit
from Gonzales. Since she could not have validly participated in
Gonzales' estate, the extrajudicial partition which she executed with
Villanueva on August 8, 1980 was invalid.39

In view of these premises, we are constrained to disagree with both

courts a quo and rule that the confluence of the circumstances and
the proof presented in this case do not lead to the conclusion that
respondent is a child of the deceased spouses.

WHEREFORE, the petition is hereby GRANTED. The assailed Decision

and Resolution of the Court of Appeals in CA-G.R. CV No. 88650
FIRST DIVISION
September 11, 2013
G.R. No. 180284
NARCISO SALAS, Petitioner
vs.
ANNABELLE MATUSALEM, Respondent
DECISION
VILLARAMA, JR., J.:
Before the Court is a petition for review on certiorari which seeks to
reverse and set aside the Decision1 dated July 18, 2006 and
Resolution2 dated October 19, 2007 of the Court of Appeals (CA) in
CA-G.R. CV No. 64379.
The factual antecedents:
On May 26, 1995, Annabelle Matusalem (respondent) filed a
complaint3 for Support/Damages against Narciso Salas (petitioner)
in the Regional Trial Court (RTC) of Cabanatuan City (Civil Case No.
2124-AF). Respondent claimed that petitioner is. the father of her
son Christian Paulo Salas who was born on December 28, 1994.
Petitioner, already 56 years old at the time, enticed her as she was
then only 24 years old, making her believe that he is a widower.
Petitioner rented an apartment where respondent stayed and
shouldered all expenses in the delivery of their child, including the
cost of caesarian operation and hospital confinement.
However, when respondent refused the offer of petitioner’s family
to take the child from her, petitioner abandoned respondent and
her child and left them to the mercy of relatives and friends.
Respondent further alleged that she attempted suicide due to
depression but still petitioner refused to support her and their child.
Respondent thus prayed for support pendente lite and monthly
support in the amount of ₱20,000.00, as well as actual, moral and
exemplary damages, and attorney’s fees.
Petitioner filed his answer4 with special and affirmative defenses
and counterclaims. He described respondent as a woman of loose
morals, having borne her first child also out of wedlock when she
went to work in Italy. Jobless upon her return to the country,
respondent spent time riding on petitioner’s jeepney which was
then being utilized by a female real estate agent named Felicisima
de Guzman. Respondent had seduced a senior police officer in San
Isidro and her charge of sexual abuse against said police officer was
later withdrawn in exchange for the quashing of drug charges
against respondent’s brother-in-law who was then detained at the
municipal jail. It was at that time respondent introduced herself to
petitioner whom she pleaded for charity as she was pregnant with
another child. Petitioner denied paternity of the child Christian
Paulo; he was motivated by no other reason except genuine
altruism when he agreed to shoulder the expenses for the delivery
of said child, unaware of respondent’s chicanery and deceit
designed to "scandalize" him in exchange for financial favor.
At the trial, respondent and her witness Grace Murillo testified.
Petitioner was declared to have waived his right to present evidence
and the case was considered submitted for decision based on
respondent’s evidence.
Respondent testified that she first met petitioner at the house of his
"kumadre" Felicisima de Guzman at Bgy. Malapit, San Isidro, Nueva
Ecija. During their subsequent meeting, petitioner told her he is
already a widower and he has no more companion in life because
his children are all grown-up. She also learned that petitioner owns
a rice mill, a construction business and a housing subdivision
(petitioner offered her a job at their family-owned Ma. Cristina
Village). Petitioner at the time already knows that she is a single
mother as she had a child by her former boyfriend in Italy. He then
brought her to a motel, promising that he will take care of her and
marry her. She believed him and yielded to his advances, with the
thought that she and her child will have a better life. Thereafter,
they saw each other weekly and petitioner gave her money for her
child. When she became pregnant with petitioner’s child, it was only
then she learned that he is in fact not a widower. She wanted to
abort the baby but petitioner opposed it because he wanted to have
another child.5
On the fourth month of her pregnancy, petitioner rented an
apartment where she stayed with a housemaid; he also provided for
all their expenses. She gave birth to their child on December 28,
1994 at the Good Samaritan Hospital in Cabanatuan City. Before
delivery, petitioner even walked her at the hospital room and
massaged her stomach, saying he had not done this to his wife. She
filled out the form for the child’s birth certificate and wrote all the
information supplied by petitioner himself. It was also petitioner
who paid the hospital bills and drove her baby home. He was
excited and happy to have a son at his advanced age who is his
"look-alike," and this was witnessed by other boarders, visitors and
Grace Murillo, the owner of the apartment unit petitioner rented.
However, on the 18th day after the baby’s birth, petitioner went to
Baguio City for a medical check-up. He confessed to her daughter
and eventually his wife was also informed about his having sired an
illegitimate child. His family then decided to adopt the baby and just
give respondent money so she can go abroad. When she refused
this offer, petitioner stopped seeing her and sending money to her.
She and her baby survived through the help of relatives and friends.
Depressed, she tried to commit suicide by drug overdose and was
brought to the hospital by Murillo who paid the bill. Murillo sought
the help of the Cabanatuan City Police Station which set their
meeting with petitioner. However, it was only petitioner’s wife who
showed up and she was very mad, uttering unsavory words against
respondent.6
Murillo corroborated respondent’s testimony as to the payment by
petitioner of apartment rental, his weekly visits to respondent and
financial support to her, his presence during and after delivery of
respondent’s baby, respondent’s attempted suicide through
sleeping pills overdose and hospitalization for which she paid the
bill, her complaint before the police authorities and meeting with
petitioner’s wife at the headquarters.7
On April 5, 1999, the trial court rendered its decision8 in favor of
respondent, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered in
favor of the plaintiff and against the defendant as follows:
1. Ordering the defendant to give as monthly support of TWO
THOUSAND (P2,000.00) PESOS for the child Christian Paulo through
the mother;
2. Directing the defendant to pay the plaintiff the sum of ₱20,000.00
by way of litigation expenses; and
3. To pay the costs of suit.
SO ORDERED.9
Petitioner appealed to the CA arguing that: (1) the trial court
decided the case without affording him the right to introduce
evidence on his defense; and (2) the trial court erred in finding that
petitioner is the putative father of Christian Paulo and ordering him
to give monthly support.
By Decision dated July 18, 2006, the CA dismissed petitioner’s
appeal. The appellate court found no reason to disturb the trial
court’s exercise of discretion in denying petitioner’s motion for
postponement on April 17, 1998, the scheduled hearing for the
initial presentation of defendant’s evidence, and the motion for
reconsideration of the said order denying the motion for
postponement and submitting the case for decision.
On the paternity issue, the CA affirmed the trial court’s ruling that
respondent satisfactorily established the illegitimate filiation of her
son Christian Paulo, and consequently no error was committed by
the trial court in granting respondent’s prayer for support. The
appellate court thus held:
Christian Paulo, in instant case, does not enjoy the benefit of a
record of birth in the civil registry which bears acknowledgment
signed by Narciso Salas. He cannot claim open and continuous
possession of the status of an illegitimate child.
It had been established by plaintiff’s evidence, however, that during
her pregnancy, Annabelle was provided by Narciso Salas with an
apartment at a rental of ₱1,500.00 which he paid for (TSN, October
6, 1995, p. 18). Narciso provided her with a household help with a
salary of ₱1,500.00 a month (TSN, October 6, 1995, ibid). He also
provided her a monthly food allowance of ₱1,500.00 (Ibid, p. 18).
Narciso was with Annabelle at the hospital while the latter was in
labor, "walking" her around and massaging her belly (Ibid, p. 11).
Narciso brought home Christian Paulo to the rented apartment after
Annabelle’s discharge from the hospital. People living in the same
apartment units were witnesses to Narciso’s delight to father a son
at his age which was his "look alike". It was only after the 18th day
when Annabelle refused to give him Christian Paulo that Narciso
withdrew his support to him and his mother.
Said testimony of Annabelle aside from having been corroborated
by Grace Murillo, the owner of the apartment which Narciso rented,
was never rebutted on record. Narciso did not present any
evidence, verbal or documentary, to repudiate plaintiff’s evidence.
In the cases of Lim vs. CA (270 SCRA 1) and Rodriguez vs. CA (245
SCRA 150), the Supreme Court made it clear that Article 172 of the
Family Code is an adaptation of Article 283 of the Civil Code. Said
legal provision provides that the father is obliged to recognize the
child as his natural child x x "3) when the child has in his favor any
evidence or proof that the defendant is his father".
In fact, in Ilano vs. CA (230 SCRA 242, 258-259), it was held that–
"The last paragraph of Article 283 contains a blanket provision that
practically covers all the other cases in the preceding paragraphs.
‘Any other evidence or proof’ that the defendant is the father is
broad enough to render unnecessary the other paragraphs of this
article. When the evidence submitted in the action for compulsory
recognition is not sufficient to meet [the] requirements of the first
three paragraphs, it may still be enough under the last paragraph.
This paragraph permits hearsay and reputation evidence, as
provided in the Rules of Court, with respect to illegitimate filiation."
As a necessary consequence of the finding that Christian Paulo is the
son of defendant Narciso Salas, he is entitled to support from the
latter (Ilano vs. CA, supra).
It "shall be demandable from the time the person who has the right
to recover the same needs it for maintenance x x." (Art. 203, Family
Code of the Philippines).10
Petitioner filed a motion for reconsideration but it was denied by
the CA.
Hence, this petition submitting the following arguments:
1. THE VENUE OF THE CASE WAS IMPROPERLY LAID BEFORE THE
REGIONAL TRIAL COURT OF CABANATUAN CITY CONSIDERING THAT
BOTH PETITIONER AND RESPONDENT ARE ACTUAL RESIDENTS OF
BRGY. MALAPIT, SAN ISIDRO, NUEVA ECIJA.
2. THE HONORABLE COURT OF APPEALS ERRED IN PRONOUNCING
THAT PETITIONER WAS AFFORDED THE FULL MEASURE OF HIS
RIGHT TO DUE PROCESS OF LAW AND IN UPHOLDING THAT THE
TRIAL COURT DID NOT GRAVELY ABUSE ITS DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
DECIDED THE INSTANT CASE WITHOUT AFFORDING PETITIONER THE
RIGHT TO INTRODUCE EVIDENCE IN HIS DEFENSE.
3. THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT
THE FILIATION OF CHRISTIAN PAULO WAS DULY ESTABLISHED
PURSUANT TO ARTICLE 175 IN RELATION TO ARTICLE 172 OF THE
FAMILY CODE AND EXISTING JURISPRUDENCE AND THEREFORE
ENTITLED TO SUPPORT FROM THE PETITIONER.11
We grant the petition.
It is a legal truism that the rules on the venue of personal actions
are fixed for the convenience of the plaintiffs and their witnesses.
Equally settled, however, is the principle that choosing the venue of
an action is not left to a plaintiff’s caprice; the matter is regulated by
the Rules of Court.12 In personal actions such as the instant case, the
Rules give the plaintiff the option of choosing where to file his
complaint. He can file it in the place (1) where he himself or any of
them resides, or (2) where the defendant or any of the defendants
resides or may be found.13 The plaintiff or the defendant must be
residents of the place where the action has been instituted at the
time the action is commenced.14
However, petitioner raised the issue of improper venue for the first
time in the Answer itself and no prior motion to dismiss based on
such ground was filed. Under the Rules of Court before the 1997
amendments, an objection to an improper venue must be made
before a responsive pleading is filed. Otherwise, it will be deemed
waived.15 Not having been timely raised, petitioner’s objection on
venue is therefore deemed waived.
As to the denial of the motion for postponement filed by his counsel
for the resetting of the initial presentation of defense evidence on
April 17, 1998, we find that it was not the first time petitioner’s
motion for postponement was denied by the trial court.
Records disclosed that after the termination of the testimony of
respondent’s last witness on November 29, 1996, the trial court as
prayed for by the parties, set the continuation of hearing for the
reception of evidence for the defendant (petitioner) on January 27,
February 3, and February 10, 1997. In the Order dated December
17, 1996, petitioner was advised to be ready with his evidence at
those hearing dates earlier scheduled. At the hearing on January 27,
1997, petitioner’s former counsel, Atty. Rolando S. Bala, requested
for the cancellation of the February 3 and 10, 1997 hearings in order
to give him time to prepare for his defense, which request was
granted by the trial court which thus reset the hearing dates to
March 3, 14 and 17, 1997. On March 3, 1997, upon oral
manifestation by Atty. Bala and without objection from
respondent’s counsel, Atty. Feliciano Wycoco, the trial court again
reset the hearing to March 14 and 17, 1997. With the
nonappearance of both petitioner and Atty. Bala on March 14, 1997,
the trial court upon oral manifestation by Atty. Wycoco declared
their absence as a waiver of their right to present evidence and
accordingly deemed the case submitted for decision.16
On July 4, 1997, Atty. Bala withdrew as counsel for petitioner and
Atty. Rafael E. Villarosa filed his appearance as his new counsel on
July 21, 1997. On the same date he filed entry of appearance, Atty.
Villarosa filed a motion for reconsideration of the March 14, 1997
Order pleading for liberality and magnanimity of the trial court,
without offering any explanation for Atty. Bala’s failure to appear
for the initial presentation of their evidence. The trial court
thereupon reconsidered its March 14, 1997 Order, finding it better
to give petitioner a chance to present his evidence. On August 26,
1997, Atty. Villarosa received a notice of hearing for the
presentation of their evidence scheduled on September 22, 1997.
On August 29, 1997, the trial court received his motion requesting
that the said hearing be re-set to October 10, 1997 for the reason
that he had requested the postponement of a hearing in another
case which was incidentally scheduled on September 22, 23 and 24,
1997. As prayed for, the trial court reset the hearing to October 10,
1997. On said date, however, the hearing was again moved to
December 15, 1997. On February 16, 1998, the trial court itself reset
the hearing to April 17, 1998 since it was unclear whether Atty.
Wycoco received a copy of the motion.17
On April 17, 1998, petitioner and his counsel failed to appear but
the trial court received on April 16, 1998 an urgent motion to cancel
hearing filed by Atty. Villarosa. The reason given by the latter was
the scheduled hearing on the issuance of writ of preliminary
injunction in another case under the April 8, 1998 Order issued by
the RTC of Gapan, Nueva Ecija, Branch 36 in Civil Case No. 1946. But
as clearly stated in the said order, it was the plaintiffs therein who
requested the postponement of the hearing and it behoved Atty.
Villarosa to inform the RTC of Gapan that he had a previous
commitment considering that the April 17, 1998 hearing was
scheduled as early as February 16, 1998. Acting on the motion for
postponement, the trial court denied for the second
time petitioner’s motion for postponement.
Even at the hearing of their motion for reconsideration of the April
17, 1998 Order on September 21, 1998, Atty. Villarosa failed to
appear and instead filed another motion for postponement. The
trial court thus ordered that the case be submitted for decision
stressing that the case had long been pending and that petitioner
and his counsel have been given opportunities to present their
evidence. It likewise denied a second motion for reconsideration
filed by Atty. Villarosa, who arrived late during the hearing thereof
on December 4, 1998.18
A motion for continuance or postponement is not a matter of right,
but a request addressed to the sound discretion of the court. Parties
asking for postponement have absolutely no right to assume that
their motions would be granted. Thus, they must be prepared on
the day of the hearing.19 Indeed, an order declaring a party to have
waived the right to present evidence for performing dilatory actions
upholds the trial court’s duty to ensure that trial proceeds despite
the deliberate delay and refusal to proceed on the part of one
party.20
Atty. Villarosa’s plea for liberality was correctly rejected by the trial
court in view of his own negligence in failing to ensure there will be
no conflict in his trial schedules. As we held in Tiomico v. Court of
Appeals21
:
Motions for postponement are generally frowned upon by Courts if
there is evidence of bad faith, malice or inexcusable negligence on
the part of the movant. The inadvertence of the defense counsel in
failing to take note of the trial dates and in belatedly informing the
trial court of any conflict in his schedules of trial or court
appearances, constitutes inexcusable negligence. It should be borne
in mind that a client is bound by his counsel’s conduct, negligence
and mistakes in handling the case.22
With our finding that there was no abuse of discretion in the trial
court’s denial of the motion for postponement filed by petitioner’s
counsel, petitioner’s contention that he was deprived of his day in
court must likewise fail. The essence of due process is that a party is
given a reasonable opportunity to be heard and submit any
evidence one may have in support of one’s defense. Where a party
was afforded an opportunity to participate in the proceedings but
failed to do so, he cannot complain of deprivation of due process. If
the opportunity is not availed of, it is deemed waived or forfeited
without violating the constitutional guarantee.23
We now proceed to the main issue of whether the trial and
appellate courts erred in ruling that respondent’s evidence
sufficiently proved that her son Christian Paulo is the illegitimate
child of petitioner.
Under Article 175 of the Family Code of the Philippines, illegitimate
filiation may be established in the same way and on the same
evidence as legitimate children.
Article 172 of the Family Code of the Philippines states:
The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final
judgment; or
(2) An admission of legitimate filiation in a public document or a
private handwritten instrument and signed by the parent
concerned.
In the absence of the foregoing evidence, the legitimate filiation
shall be proved by:
(1) The open and continuous possession of the status of a legitimate
child; or
(2) Any other means allowed by the Rules of Court and special laws.
(Underscoring supplied.)
Respondent presented the Certificate of Live Birth24 (Exhibit "A-1")
of Christian Paulo Salas in which the name of petitioner appears as
his father but which is not signed by him. Admittedly, it was only
respondent who filled up the entries and signed the said document
though she claims it was petitioner who supplied the information
she wrote therein.
We have held that a certificate of live birth purportedly identifying
the putative father is not competent evidence of paternity when
there is no showing that the putative father had a hand in the
preparation of the certificate.25 Thus, if the father did not sign in the
birth certificate, the placing of his name by the mother, doctor,
registrar, or other person is incompetent evidence of
paternity.26 Neither can such birth certificate be taken as a
recognition in a public instrument27 and it has no probative value to
establish filiation to the alleged father.28
As to the Baptismal Certificate29 (Exhibit "B") of Christian Paulo Salas
also indicating petitioner as the father, we have ruled that while
baptismal certificates may be considered public documents, they
can only serve as evidence of the administration of the sacraments
on the dates so specified. They are not necessarily competent
evidence of the veracity of entries therein with respect to the child’s
paternity.30
The rest of respondent’s documentary evidence consists of
handwritten notes and letters, hospital bill and photographs taken
of petitioner and respondent inside their rented apartment unit.
Pictures taken of the mother and her child together with the alleged
father are inconclusive evidence to prove paternity.31 Exhibits "E"
and "F"32 showing petitioner and respondent inside the rented
apartment unit thus have scant evidentiary value. The Statement of
Account33 (Exhibit "C") from the Good Samaritan General Hospital
where respondent herself was indicated as the payee is likewise
incompetent to prove that petitioner is the father of her child
notwithstanding petitioner’s admission in his answer that he
shouldered the expenses in the delivery of respondent’s child as an
act of charity.
As to the handwritten notes34 (Exhibits "D" to "D-13") of petitioner
and respondent showing their exchange of affectionate words and
romantic trysts, these, too, are not sufficient to establish Christian
Paulo’s filiation to petitioner as they were not signed by petitioner
and contained no statement of admission by petitioner that he is
the father of said child. Thus, even if these notes were authentic,
they do not qualify under Article 172 (2) vis-à- vis Article 175 of the
Family Code which admits as competent evidence of illegitimate
filiation an admission of filiation in a private handwritten instrument
signed by the parent concerned.35
Petitioner’s reliance on our ruling in Lim v. Court of Appeals36 is
misplaced.1âwphi1 In the said case, the handwritten letters of
petitioner contained a clear admission that he is the father of
private respondent’s daughter and were signed by him. The Court
therein considered the totality of evidence which established
beyond reasonable doubt that petitioner was indeed the father of
private respondent’s daughter. On the other hand, in Ilano v. Court
of Appeals,37 the Court sustained the appellate court’s finding that
private respondent’s evidence to establish her filiation with and
paternity of petitioner was overwhelming, particularly the latter’s
public acknowledgment of his amorous relationship with private
respondent’s mother, and private respondent as his own child
through acts and words, her testimonial evidence to that effect was
fully supported by documentary evidence. The Court thus ruled that
respondent had adduced sufficient proof of continuous possession
of status of a spurious child.
Here, while the CA held that Christian Paulo Salas could not claim
open and continuous possession of status of an illegitimate child, it
nevertheless considered the testimonial evidence sufficient proof to
establish his filiation to petitioner.
An illegitimate child is now also allowed to establish his claimed
filiation by "any other means allowed by the Rules of Court and
special laws," like his baptismal certificate, a judicial admission, a
family Bible in which his name has been entered, common
reputation respecting his pedigree, admission by silence, the
testimonies of witnesses, and other kinds of proof admissible under
Rule 130 of the Rules of Court.38 Reviewing the records, we find the
totality of respondent’s evidence insufficient to establish that
petitioner is the father of Christian Paulo.
The testimonies of respondent and Murillo as to the circumstances
of the birth of Christian Paulo, petitioner’s financial support while
respondent lived in Murillo’s apartment and his regular visits to her
at the said apartment, though replete with details, do not
approximate the "overwhelming evidence, documentary and
testimonial" presented in Ilano. In that case, we sustained the
appellate court’s ruling anchored on the following factual findings
by the appellate court which was quoted at length in the ponencia:
It was Artemio who made arrangement for the delivery of
Merceditas (sic) at the Manila Sanitarium and Hospital. Prior to the
delivery, Leoncia underwent prenatal examination accompanied by
Artemio (TSN, p. 33, 5/17/74). After delivery, they went home to
their residence at EDSA in a car owned and driven by Artemio
himself (id. p. 36).
Merceditas (sic) bore the surname of "Ilano" since birth without any
objection on the part of Artemio, the fact that since Merceditas (sic)
had her discernment she had always known and called Artemio as
her "Daddy" (TSN, pp. 28-29, 10/18/74); the fact that each time
Artemio was at home, he would play with Merceditas (sic), take her
for a ride or restaurants to eat, and sometimes sleeping with
Merceditas (sic) (id. p. 34) and does all what a father should do for
his child — bringing home goodies, candies, toys and whatever he
can bring her which a child enjoys which Artemio gives to
Merceditas (sic) (TSN, pp. 38-39, 5/17/74) are positive evidence that
Merceditas (sic) is the child of Artemio and recognized by Artemio
as such. Special attention is called to Exh. "E-7" where Artemio was
telling Leoncia the need for a "frog test" to know the status of
Leoncia.
Plaintiff pointed out that the support by Artemio for Leoncia and
Merceditas (sic) was sometimes in the form of cash personally
delivered to her by Artemio, thru Melencio, thru Elynia (Exhs. "E-2"
and "E-3", and "D-6"), or thru Merceditas (sic) herself (TSN, p. 40,
5/17/74) and sometimes in the form of a check as the Manila
Banking Corporation Check No. 81532 (Exh. "G") and the signature
appearing therein which was identified by Leoncia as that of
Artemio because Artemio often gives her checks and Artemio would
write the check at home and saw Artemio sign the check (TSN, p. 49,
7/18/73). Both Artemio and Nilda admitted that the check and
signature were those of Artemio (TSN, p. 53, 10/17/77; TSN, p. 19,
10/9/78).
During the time that Artemio and Leoncia were living as husband
and wife, Artemio has shown concern as the father of Merceditas
(sic). When Merceditas (sic) was in Grade 1 at the St. Joseph
Parochial School, Artemio signed the Report Card of Merceditas (sic)
(Exh. "H") for the fourth and fifth grading period(s) (Exh. "H-1" and
"H-2") as the parent of Merceditas (sic). Those signatures of Artemio
[were] both identified by Leoncia and Merceditas (sic) because
Artemio signed Exh. "H-1" and "H-2" at their residence in the
presence of Leoncia, Merceditas (sic) and of Elynia (TSN, p. 57,
7/18/73; TSN, p. 28, 10/1/73). x x x.
xxx xxx xxx
When Artemio run as a candidate in the Provincial Board of Cavite[,]
Artemio gave Leoncia his picture with the following dedication: "To
Nene, with best regards, Temiong". (Exh. "I"). (pp. 19-20, Appellant’s
Brief)
The mere denial by defendant of his signature is not sufficient to
offset the totality of the evidence indubitably showing that the
signature thereon belongs to him. The entry in the Certificate of Live
Birth that Leoncia and Artemio was falsely stated therein as married
does not mean that Leoncia is not appellee’s daughter. This
particular entry was caused to be made by Artemio himself in order
to avoid embarrassment.39
In sum, we hold that the testimonies of respondent and Murillo, by
themselves are not competent proof of paternity and the totality of
respondent’s evidence failed to establish Christian Paulo’s filiation
to petitioner.
Time and again, this Court has ruled that a high standard of proof is
required to establish paternity and filiation. An order for recognition
and support may create an unwholesome situation or may be an
irritant to the family or the lives of the parties so that it must be
issued only if paternity or filiation is established by clear and
convincing evidence.40
Finally, we note the Manifestation and Motion41 filed by petitioner’s SO ORDERED.
counsel informing this Court that petitioner had died on May 6,
2010. The action for support having been filed in the trial court
when petitioner was still alive, it is not barred under Article 175
(2)42 of the Family Code. We have also held that the death of the
putative father is not a bar to the action commenced during his
lifetime by one claiming to be his illegitimate child.43 The rule on
substitution of parties provided in Section 16, Rule 3 of the 1997
Rules of Civil Procedure, thus applies.
SEC. 16. Death of party; duty of counsel. – Whenever a party to a
pending action dies, and the claim is not thereby extinguished, it
shall be the duty of his counsel to inform the court within thirty (30)
days after such death of the fact thereof, and to give the name and
address of his legal representative or representatives. Failure of
counsel to comply with his duty shall be a ground for disciplinary
action.
The heirs of the deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an executor or
administrator and the court may appoint a guardian ad litem for the
minor heirs.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period of
thirty (30) days from notice.
If no legal representative is named by the counsel for the deceas~d
party, or if the one so named shall fail to appear within the specified
period, the court may order the opposing party, within a specified
time to procure the appointment of an executor or administrator for
the estate of the deceased and the latter shall immediately appear
for and on behalf of the deceased. The court charges in procuring
such appointment, if defrayed by the opposing party, may be
recovered as costs .
WHEREFORE, the petition for review on certiorari is GRANTED. The
Decision dated July 18, 2006 and Resolution dated October 19, 2007
of the Court of Appeals in CA-G.R. CV No. 64379 are
hereby REVERSED and SET ASIDE. Civil Case No. 2124-AF of the
Regional Trial Court of Cabanatuan City, Branch 26 is DISMISSED.
No pronouncement as to costs.
THIRD DIVISION
G.R. No. 138493 June 15, 2000
TEOFISTA BABIERA, petitioner,
vs.
PRESENTACION B. CATOTAL, respondent.
PANGANIBAN, J.:
A birth certificate may be ordered cancelled upon adequate proof
that it is fictitious. Thus, void is a certificate which shows that the
mother was already fifty-four years old at the time of the child's
birth and which was signed neither by the civil registrar nor by the
supposed mother. Because her inheritance rights are adversely
affected, the legitimate child of such mother is a proper party in the
proceedings for the cancellation of the said certificate.
Statement of the Case
Submitted for this Court's consideration is a Petition for Review
on Certiorari1 under Rule 45 of the Rules of Court, seeking reversal
of the March 18, 1999 Decision2 of the Court of Appeals3 (CA) in CA-
GR CV No. 56031. Affirming the Regional Trial Court of Lanao del
Norte in Special Proceedings No. 3046, the CA ruled as follows:
IN VIEW HEREOF, the appealed decision is hereby
AFFIRMED. Accordingly, the instant appeal is DISMISSED for
lack of merit. Costs against the defendant-appellant,
TEOFISTA BABIERA, a.k.a. Teofista Guinto.4
The dispositive portion of the affirmed RTC Decision reads:
WHEREFORE, in view of the foregoing findings and
pronouncements of the Court, judgment is hereby
rendered, to wit[:]
1) Declaring the Certificate of Birth of respondent
Teofista Guinto as null and void "ab initio";
2) Ordering the respondent Local Civil Registrar of
Iligan to cancel from the registry of live birth of
Iligan City BIRTH CERTIFICATE recorded as Registry
No. 16035;
Furnish copies of this-decision to the Local Civil Registrar of
Iligan City, the City Prosecutor, counsel for private
respondent Atty. Tomas Cabili and to counsel for
petitioner.
SO ORDERED.
The Facts
The undisputed facts are summarized by the Court of Appeals in this
wise:
Presentacion B. Catotal (hereafter referred to as
PRESENTACION) filed with the Regional Trial Court of Lanao
del Node, Branch II, Iligan City, a petition for the
cancellation of the entry of birth of Teofista Babiera
(herafter referred to as TEOFISTA) in the Civil Registry of
Iligan City. The case was docketed as Special Proceedings
No. 3046.
From the petition filed, PRESENTACION asserted "that she
is the only surviving child of the late spouses Eugenio
Babiera and Hermogena Cariñosa, who died on May 26,
1996 and July 6, 1990 respectively; that on September 20,
1996 a baby girl was delivered by "hilot" in the house of
spouses Eugenio and Hermogena Babiera and without the
knowledge of said spouses, Flora Guinto, the mother of the
child and a housemaid of spouses Eugenio and Hermogena
Babiera, caused the registration/recording of the facts of
birth of her child, by simulating that she was the child of
the spouses Eugenio, then 65 years old and Hermogena,
then 54 years old, and made Hermogena Babiera appear as
the mother by forging her signature . . .; that petitioner,
then 15 years old, saw with her own eyes and personally
witnessed Flora Guinto give birth to Teofista Guinto, in
their house, assisted by "hilot"; that the birth certificate . . .
of Teofista Guinto is void ab initio, as it was totally a
simulated birth, signature of informant forged, and it
contained false entries, to wit: a) The child is made to
appear as the legitimate child of the late spouses Eugenio
Babiera and Hermogena Cariñosa, when she is not; b) The
signature of Hermogena Cariñosa, the mother, is
falsified/forged. She was not the informant; c) The family
name BABIERA is false and unlawful and her correct family
name is GUINTO, her mother being single; d) Her real
mother was Flora Guinto and her status, an illegitimate
child; The natural father, the carpenter, did not sign it; that
the respondent Teofista Barbiera's birth certificate is
void ab initio, and it is patently a simulation of birth, since it
is clinically and medically impossible for the supposed
parents to bear a child in 1956 because: a) Hermogena
Cariñosa Babiera, was already 54 years old; b) Hermogena's
last child birth was in the year 1941, the year petitioner
was born; c) Eugenio was already 65 years old, that the
void and simulated birth certificate of Teofista Guinto
would affect the hereditary rights of petitioner who
inherited the estate of cancelled and declared void and
theretofore she prays that after publication, notice and
hearing, judgment [be] render[ed] declaring . . . the
certificate of birth of respondent Teofista Guinto as
declared void, invalid and ineffective and ordering the
respondent local civil registrar of Iligan to cancel from the
registry of live birth of Iligan City BIRTH CERTIFICATE
recorded as Registry No. 16035.
Finding the petition to be sufficient in form and substance,
the trial court issued an order directing the publication of
the petition and the date of hearing thereof in a
newspaper, the Local Civil Registrar of Iligan City, the office
of the City Prosecutor of Iligan City and TEOFISTA.
TEOFISTA filed a motion to dismiss on the grounds that
"the petition states no cause of action, it being an attack on
the legitimacy of the respondent as the child of the spouses
Eugenio Babiera and Hermogena Cariñosa Babiera; that
plaintiff has no legal capacity to file the instant petition
pursuant to Article 171 of the Family Code; and finally that
the instant petition is barred by prescription in accordance
with Article 170 of the Family Code." The trial court denied
the motion to dismiss.
Subsequently, "Attys. Padilla, Ulindang and Padilla
appeared and filed an answer/opposition in behalf of
 private respondent Teofista Babiera, [who] was later on
substituted by Atty. Cabili as counsel for private
respondent."
In the answer filed, TEOFISTA averred "that she was always
known as Teofista Babiera and not Teofista Guinto; that
plaintiff is not the only surviving child of the late spouses
Eugenio Babiera and Hermogena C. Babiera, for the truth of
the matter [is that] plantiff Presentacion B. V. Catotal and
[defendant] Teofista Babiera are sisters of the full-blood.
Her Certificate of Birth, signed by her mother Hermogena
Babiera, . . . Certificate of Baptism, . . . Student's Report
Card . . . all incorporated in her answer, are eloquent
testimonies of her filiation. By way of special and
affirmative defenses, defendant/respondent contended
that the petition states no cause of action, it being an
attack on the legitimacy of the respondent as the child of
the spouses Eugenio Babiera and Hermogena Cariñoza
Babiera; that plaintiff has no legal capacity to file the
instant petition pursuant to Article 171 of the Family Code;
and finally that the instant petition is barred by
prescription in accordance with Article 170 of the Family
Code.5
Ruling of the Court of Appeals
The Court of Appeals held that the evidence adduced during trial
proved that petitioner was not the biological child of Hermogena
Babiera. It also ruled that no evidence was presented to show that
Hermogena became pregnant in 1959. It further observed that she
was already 54 years old at the time, and that her last pregnancy
had occurred way back in 1941. The CA noted that the supposed
birth took place at home, notwithstanding the advanced age of
Hermogena and its concomitant medical complications. Moreover,
petitioner's Birth Certificate was not signed by the local civil
registrar, and the signature therein, which was purported to be that
of Hermogena, was different from her other signatures.
The CA also deemed inapplicable Articles 170 and 171 of the Family
Code, which stated that only the father could impugn the child's
legitimacy, and that the same was not subject to a collateral attack.
It held that said provisions contemplated a situation wherein the
husband or his heirs asserted that the child of the wife was not his.
In this case, the action involved the cancellation of the child's Birth
Certificate for being void ab initio on the ground that the child did
not belong to either the father or the mother.
Hence, this appeal.6
Issues
Petitioner presents the following assignment of errors:
1) Respondent (plaintiff in the lower court a quo) does not
have the legal capacity to file the special proceeding of
appeal under CA GR No. CV-56031 subject matter of this
review on certiorari;
2) The special proceeding on appeal under CA GR No. CV-
56031 is improper and is barred by [the] statute of
limitation (prescription); [and]
3) The Honorable Court of Appeals, the fifteenth division
utterly failed to hold, that the ancient public record of
petitioner's birth is superior to the self-serving oral
testimony of respondent.7
The Court's Ruling
The Petition is not meritorious.
First Issue: Subject of
the Present Action
Petitioner contends that respondent has no standing to sue,
because Article 1718 of the Family Code states that the child's
filiation can be impugned only by the father or, in special
circumstances, his heirs. She adds that the legitimacy of a child is
not subject to a collateral attack.
This argument is incorrect. Respondent has the requisite standing to
initiate the present action. Section 2, Rule 3 of the Rules of Court,
provides that a real party in interest is one "who stands to be
benefited or injured by the judgment in the suit, or the party
entitled to the avails of the suit."9 The interest of respondent in the
civil status of petitioner stems from an action for partition which the
latter filed against the former. 10 The case concerned the properties
inherited by respondent from her parents.
Moreover, Article 171 of the Family Code is not applicable to the
present case. A close reading of this provision shows that it applies
to instances in which the father impugns the legitimacy of his wife's
child. The provision, however, presupposes that the child was the
undisputed offspring of the mother. The present case alleges and
shows that Hermogena did not give birth to petitioner. In other
words, the prayer herein is not to declare that petitioner is an
illegitimate child of Hermogena, but to establish that the former is
not the latter's child at all. Verily, the present action does not
impugn petitioner's filiation to Spouses Eugenio and Hermogena
Babiera, because there is no blood relation to impugn in the first
place.
In Benitez-Badua v. Court of Appeals, 11 the Court ruled thus:
Petitioner's insistence on the applicability of Articles 164,
166, 170 and 171 of the Family Code to the case at bench
cannot be sustained. These articles provide:
xxx xxx xxx
A careful reading of the above articles will show that they
do not contemplate a situation, like in the instant case,
where a child is alleged not to be the child of nature or
biological child of a certain couple. Rather, these articles
govern a situation where a husband (or his heirs) denies as
his own a child of his wife. Thus, under Article 166, it is the
husband who can impugn the legitimacy of said child by
proving: (1) it was physically impossible for him to have
sexual intercourse, with his wife within the first 120 days of
the 300 days which immediately preceded the birth of the
child; (2) that for biological or other scientific reasons, the
child could not have been his child; (3) that in case of
children conceived insemination, the written authorization
or ratification by either parent was obtained through
mistake, fraud, violence, intimidation or undue influence.
Articles 170 and 171 reinforce this reading as they speak of
the prescriptive period within which the husband or any of
 his heirs should file the action impugning the legitimacy of
said child. Doubtless then, the appellate court did not err
when it refused to apply these articles to the case at bench.
For the case at bench is not one where the heirs of the late
Vicente are contending that petitioner is not his child by
Isabel. Rather, their clear submission is that petitioner was
not horn to Vicente and Isabel. Our ruling in Cabatbat-Lim
vs. Intermediate Appellate Court, 166 SCRA 451, 457 cited
in the impugned decision is apropos, viz:
"Petitioners" recourse to Article 263 of the New
Civil Code [now Art. 170 of the Family Code] is not
well-taken. This legal provision refers to an action
to impugn legitimacy. It is inapplicable to this case
because this is not an action to impugn the
legitimacy of a child, but an action of the private
respondents to claim their inheritance as legal
heirs of their childless deceased aunt. They do not
claim that petitioner Violeta Cabatbat Lim is an
illegitimate child of the deceased, but that she is
not the decedent's child at all. Being neither [a]
legally adopted child, nor an acknowledged
natural child, nor a child by legal fiction of
Esperanza Cabatbat, Violeta is not a legal heir of
the deceased. 12 (Emphasis supplied.)
Second Issue: Prescription
Petitioner next contends that the action to contest her status as a
child of the late Hermogena Babiera has already prescribed. She
cites Article 170 of the Family Code which provides the prescriptive
period for such action:
Art. 170. The action to impugn the legitimacy of the child
shall be brought within one year from the knowledge of the
birth or its recording in the civil register, if the husband or,
in a proper case, any of his heirs, should reside in the city
or municipality where the birth took place or was recorded.
If the husband or, in his default, all of his heirs do not
reside at the place of birth as defined in the first paragraph
or where it was recorded, the period shall be two years if
they should reside in the Philippines; and three years if
abroad. If the birth of the child has been concealed from or
was unknown to the husband or his heirs, the period shall
be counted from the discovery or knowledge of the birth of
the child or of the fact of registration of said birth,
whichever is earlier.
This argument is bereft of merit. The present action involves the
cancellation of petitioner's Birth Certificate; it does not impugn her
legitimacy. Thus, the prescriptive period set forth in Article 170 of
the Family Code does not apply. Verily, the action to nullify the Birth
Certificate does not prescribe, because it was allegedly void ab
initio. 1
Third Issue:
Presumption in Favor of the Birth Certificate
Lastly, petitioner argues that the evidence presented, especially
Hermogena's testimony that petitioner was not her real child,
cannot overcome the presumption of regularity in the issuance of
the Birth Certificate.
While it is true that an official document such as petitioner's Birth
Certificate enjoys the presumption of regularity, the specific facts
attendant in the case at bar, as well as the totality of the evidence
presented during trial, sufficiently negate such presumption. First,
there were already irregularities regarding the Birth Certificate
itself. It was not signed by the local civil registrar. 14 More important,
the Court of Appeals observed that the mother's signature therein
was different from her signatures in other documents presented
during the trial.
Second, the circumstances surrounding the birth of petitioner show
that Hermogena is not the former's real mother. For one, there is no
evidence of Hermogena's pregnancy, such as medical records and
doctor's prescriptions, other than the Birth Certificate itself. In fact,
no witness was presented to attest to the pregnancy of Hermogena
during that time.1awphil Moreover, at the time of her supposed
birth, Hermogena was already 54 years old. Even if it were possible
for her to have given birth at such a late age, it was highly suspicious
that she did so in her own home, when her advanced age
necessitated proper medical care normally available only in a
hospital.
The most significant piece of evidence, however, is the deposition of
Hermogena Babiera which states that she did not give birth to
petitioner, and that the latter was not hers nor her husband
Eugenio's. The deposition reads in part:
q Who are your children?
a Presentation and Florentino Babiera.
q Now, this Teofista Babiera claims that she is your
legitimate child with your husband Eugenio Babiera, what
can you say about that?
a She is not our child.
q Do you recall where she was born?
a In our house because her mother was our house helper.
q Could you recall for how long if ever this Teofista Babiera
lived with you in your residence?
a Maybe in 1978 but she [would] always go ou[t] from time
to time.
q Now, during this time, do you recall if you ever assert[ed]
her as your daughter with your husband?
a No, sir. 15
Relying merely on the assumption of validity of the Birth Certificate,
petitioner has presented no other evidence other than the said
document to show that she is really Hermogena's child; Neither has
she provided any reason why her supposed mother would make a
deposition stating that the former was not the latter's child at all.
All in all, we find no reason to reverse or modify the factual finding
of the trial and the appellate courts that petitioner was not the child
of respondent's parents.
WHEREFORE, the Petition is hereby DENIED and the assailed
Decision AFFIRMED. Costs against petitioner. SO ORDERED.
THIRD DIVISION
G.R. No. 162571 June 15, 2005
ARNEL L. AGUSTIN, petitioner,
vs.
HON. COURT OF APPEALS AND MINOR MARTIN JOSE
PROLLAMANTE, REPRESENTED BY HIS MOTHER/GUARDIAN FE
ANGELA PROLLAMANTE, respondents.
DECISION
CORONA, J.:
At issue in this petition for certiorari 1 is whether or not the Court of
Appeals (CA) gravely erred in exercising its discretion, amounting to
lack or excess of jurisdiction, in issuing a decision 2 and
resolution3 upholding the resolution and order of the trial
court,4 which denied petitioner’s motion to dismiss private
respondents’ complaint for support and directed the parties to
submit themselves to deoxyribonucleic acid (DNA) paternity testing.
Respondents Fe Angela and her son Martin Prollamante sued
Martin’s alleged biological father, petitioner Arnel L. Agustin, for
support and support pendente lite before the Regional Trial Court
(RTC) of Quezon City, Branch 106.5
In their complaint, respondents alleged that Arnel courted Fe in
1992, after which they entered into an intimate relationship. Arnel
supposedly impregnated Fe on her 34th birthday on November 10,
1999. Despite Arnel’s insistence on abortion, Fe decided otherwise
and gave birth to their child out of wedlock, Martin, on August 11,
2000 at the Capitol Medical Hospital in Quezon City. The baby’s
birth certificate was purportedly signed by Arnel as the father. Arnel
shouldered the pre-natal and hospital expenses but later refused
Fe’s repeated requests for Martin’s support despite his adequate
financial capacity and even suggested to have the child committed
for adoption. Arnel also denied having fathered the child.
On January 19, 2001, while Fe was carrying five-month old Martin at
the Capitol Hills Golf and Country Club parking lot, Arnel sped off in
his van, with the open car door hitting Fe’s leg. This incident was
reported to the police. In July 2001, Fe was diagnosed with leukemia
and has, since then, been undergoing chemotherapy. On March 5,
2002, Fe and Martin sued Arnel for support.6
In his amended answer, Arnel denied having sired Martin because
his affair and intimacy with Fe had allegedly ended in 1998, long
before Martin’s conception. He claimed that Fe had at least one
other secret lover. Arnel admitted that their relationship started in
1993 but "he never really fell in love with (Fe) not only because
(she) had at least one secret lover, a certain Jun, but also because
she proved to be scheming and overly demanding and possessive.
As a result, theirs was a stormy on-and-off affair. What started as a
romantic liaison between two consenting adults eventually turned
out to be a case of fatal attraction where (Fe) became so obsessed
with (Arnel), to the point of even entertaining the idea of marrying
him, that she resorted to various devious ways and means to
alienate (him) from his wife and family…. Unable to bear the
prospect of losing his wife and children, Arnel terminated the affair
although he still treated her as a friend such as by referring
potential customers to the car aircon repair shop"7 where she
worked. Later on, Arnel found out that Fe had another erstwhile
secret lover. In May 2000, Arnel and his entire family went to the
United States for a vacation. Upon their return in June 2000, Arnel
learned that Fe was telling people that he had impregnated her.
Arnel refused to acknowledge the child as his because their "last
intimacy was sometime in 1998."8 Exasperated, Fe started calling
Arnel’s wife and family. On January 19, 2001, Fe followed Arnel to
the Capitol Hills Golf and Country Club parking lot to demand that
he acknowledge Martin as his child. According to Arnel, he could not
get through Fe and the discussion became so heated that he had no
"alternative but to move on but without bumping or hitting any part
of her body."9 Finally, Arnel claimed that the signature and the
community tax certificate (CTC) attributed to him in the
acknowledgment of Martin’s birth certificate were falsified. The CTC
erroneously reflected his marital status as single when he was
actually married and that his birth year was 1965 when it should
have been 1964.10
In his pre-trial brief filed on May 17, 2002, Arnel vehemently denied
having sired Martin but expressed willingness to consider any
proposal to settle the case.11
On July 23, 2002, Fe and Martin moved for the issuance of an order
directing all the parties to submit themselves to DNA paternity
testing pursuant to Rule 28 of the Rules of Court.12
Arnel opposed said motion by invoking his constitutional right
against self-incrimination.13 He also moved to dismiss the complaint
for lack of cause of action, considering that his signature on the
birth certificate was a forgery and that, under the law, an
illegitimate child is not entitled to support if not recognized by the
putative father.14 In his motion, Arnel manifested that he had filed
criminal charges for falsification of documents against Fe (I.S. Nos.
02-5723 and 02-7192) and a petition for cancellation of his name
appearing in Martin’s birth certificate (docketed as Civil Case No. Q-
02-46669). He attached the certification of the Philippine National
Police Crime Laboratory that his signature in the birth certificate
was forged.
The trial court denied the motion to dismiss the complaint and
ordered the parties to submit themselves to DNA paternity testing
at the expense of the applicants. The Court of Appeals affirmed the
trial court.
Thus, this petition.
In a nutshell, petitioner raises two issues: (1) whether a complaint
for support can be converted to a petition for recognition and (2)
whether DNA paternity testing can be ordered in a proceeding for
support without violating petitioner’s constitutional right to privacy
and right against self-incrimination.15
The petition is without merit.
First of all, the trial court properly denied the petitioner’s motion to
dismiss because the private respondents’ complaint on its face
showed that they had a cause of action against the petitioner. The
elements of a cause of action are: (1) the plaintiff’s primary right
and the defendant’s corresponding primary duty, and (2) the delict
or wrongful act or omission of the defendant, by which the primary
right and duty have been violated. The cause of action is determined
not by the prayer of the complaint but by the facts alleged. 16
In the complaint, private respondents alleged that Fe had amorous
relations with the petitioner, as a result of which she gave birth to
Martin out of wedlock. In his answer, petitioner admitted that he
had sexual relations with Fe but denied that he fathered Martin,
claiming that he had ended the relationship long before the child’s
conception and birth. It is undisputed and even admitted by the
parties that there existed a sexual relationship between Arnel and
Fe. The only remaining question is whether such sexual relationship
produced the child, Martin. If it did, as respondents have alleged,
then Martin should be supported by his father Arnel. If not,
petitioner and Martin are strangers to each other and Martin has no
right to demand and petitioner has no obligation to give support.
Preliminaries aside, we now tackle the main issues.
Petitioner refuses to recognize Martin as his own child and denies
the genuineness and authenticity of the child’s birth certificate
which he purportedly signed as the father. He also claims that the
order and resolution of the trial court, as affirmed by the Court of
Appeals, effectively converted the complaint for support to a
petition for recognition, which is supposedly proscribed by law.
According to petitioner, Martin, as an unrecognized child, has no
right to ask for support and must first establish his filiation in a
separate suit under Article 28317 in relation to Article 26518 of the
Civil Code and Section 1, Rule 10519 of the Rules of Court.
The petitioner’s contentions are without merit.
The assailed resolution and order did not convert the action for
support into one for recognition but merely allowed the
respondents to prove their cause of action against petitioner who
had been denying the authenticity of the documentary evidence of
acknowledgement. But even if the assailed resolution and order
effectively integrated an action to compel recognition with an action
for support, such was valid and in accordance with jurisprudence.
In Tayag v. Court of Appeals,20 we allowed the integration of an
action to compel recognition with an action to claim one’s
inheritance:
…In Paulino, we held that an illegitimate child, to be entitled to
support and successional rights from the putative or presumed
parent, must prove his filiation to the latter. We also said that it is
necessary to allege in the complaint that the putative father had
acknowledged and recognized the illegitimate child because such
acknowledgment is essential to and is the basis of the right to
inherit. There being no allegation of such acknowledgment, the
action becomes one to compel recognition which cannot be brought
after the death of the putative father. The ratio decidendi in Paulino,
therefore, is not the absence of a cause of action for failure of the
petitioner to allege the fact of acknowledgment in the complaint,
but the prescription of the action.
Applying the foregoing principles to the case at bar, although
petitioner contends that the complaint filed by herein private
respondent merely alleges that the minor Chad Cuyugan is an
illegitimate child of the deceased and is actually a claim for
inheritance, from the allegations therein the same may be
considered as one to compel recognition. Further, that the two
causes of action, one to compel recognition and the other to claim
inheritance, may be joined in one complaint is not new in our
jurisprudence.
As early as [1922] we had occasion to rule thereon in Briz vs. Briz, et
al. (43 Phil. 763 [1922]) wherein we said:
The question whether a person in the position of the present
plaintiff can in any event maintain a complex action to compel
recognition as a natural child and at the same time to obtain ulterior
relief in the character of heir, is one which in the opinion of this
court must be answered in the affirmative, provided always that the
conditions justifying the joinder of the two distinct causes of action
are present in the particular case. In other words, there is no
absolute necessity requiring that the action to compel
acknowledgment should have been instituted and prosecuted to a
successful conclusion prior to the action in which that same
plaintiff seeks additional relief in the character of heir. Certainly,
there is nothing so peculiar to the action to compel
acknowledgment as to require that a rule should be here applied
different from that generally applicable in other cases. x x x
The conclusion above stated, though not heretofore explicitly
formulated by this court, is undoubtedly to some extent supported
by our prior decisions. Thus, we have held in numerous cases, and
the doctrine must be considered well settled, that a natural child
having a right to compel acknowledgment, but who has not been
in fact legally acknowledged, may maintain partition proceedings
for the division of the inheritance against his coheirs x x x; and the
same person may intervene in proceedings for the distribution of
the estate of his deceased natural father, or mother x x x. In neither
of these situations has it been thought necessary for the plaintiff to
show a prior decree compelling acknowledgment. The obvious
reason is that in partition suits and distribution proceedings the
other persons who might take by inheritance are before the court;
and the declaration of heirship is appropriate to such proceedings.
(Underscoring supplied)
Although the instant case deals with support rather than
inheritance, as in Tayag, the basis or rationale for integrating them
remains the same. Whether or not respondent Martin is entitled to
support depends completely on the determination of filiation. A
separate action will only result in a multiplicity of suits, given how
intimately related the main issues in both cases are. To
paraphrase Tayag, the declaration of filiation is entirely appropriate
to these proceedings.
On the second issue, petitioner posits that DNA is not recognized by
this Court as a conclusive means of proving paternity. He also
contends that compulsory testing violates his right to privacy and
right against self-incrimination as guaranteed under the 1987
Constitution. These contentions have no merit.
Given that this is the very first time that the admissibility of DNA
testing as a means for determining paternity has actually been the
focal issue in a controversy, a brief historical sketch of our past
decisions featuring or mentioning DNA testing is called for.
In the 1995 case of People v. Teehankee21 where the appellant was
convicted of murder on the testimony of three eyewitnesses, we
stated as an obiter dictum that "while eyewitness identification is
significant, it is not as accurate and authoritative as the scientific
forms of identification evidence such as the fingerprint or the DNA
test result(emphasis supplied)."
Our faith in DNA testing, however, was not quite so steadfast in the
previous decade. In Pe Lim v. Court of Appeals,22 promulgated in
1997, we cautioned against the use of DNA because "DNA, being a
relatively new science, (had) not as yet been accorded official
recognition by our courts. Paternity (would) still have to be resolved
by such conventional evidence as the relevant incriminating acts,
verbal and written, by the putative father."
In 2001, however, we opened the possibility of admitting DNA as
evidence of parentage, as enunciated in Tijing v. Court of Appeals:23
A final note. Parentage will still be resolved using conventional
methods unless we adopt the modern and scientific ways available.
Fortunately, we have now the facility and expertise in using DNA
test for identification and parentage testing. The University of the
Philippines Natural Science Research Institute (UP-NSRI) DNA
Analysis Laboratory has now the capability to conduct DNA typing
using short tandem repeat (STR) analysis. The analysis is based on
the fact that the DNA of a child/person has two (2) copies, one copy
from the mother and the other from the father. The DNA from the
mother, the alleged father and child are analyzed to establish
parentage. Of course, being a novel scientific technique, the use of
DNA test as evidence is still open to challenge. Eventually, as the
appropriate case comes, courts should not hesitate to rule on the
admissibility of DNA evidence. For it was said, that courts should
apply the results of science when competently obtained in aid of
situations presented, since to reject said result is to deny progress.
The first real breakthrough of DNA as admissible and authoritative
evidence in Philippine jurisprudence came in 2002 with our en
banc decision in People v. Vallejo24 where the rape and murder
victim’s DNA samples from the bloodstained clothes of the accused
were admitted in evidence. We reasoned that "the purpose of DNA
testing (was) to ascertain whether an association exist(ed) between
the evidence sample and the reference sample. The samples
collected (were) subjected to various chemical processes to
establish their profile."
A year later, in People v. Janson,25 we acquitted the accused charged
with rape for lack of evidence because "doubts persist(ed) in our
mind as to who (were) the real malefactors. Yes, a complex offense
(had) been perpetrated but who (were) the perpetrators? How we
wish we had DNA or other scientific evidence to still our doubts!"
In 2004, in Tecson, et al. v. COMELEC26 where the Court en banc was
faced with the issue of filiation of then presidential candidate
Fernando Poe Jr., we stated:
In case proof of filiation or paternity would be unlikely to
satisfactorily establish or would be difficult to obtain, DNA testing,
which examines genetic codes obtained from body cells of the
illegitimate child and any physical residue of the long dead parent
could be resorted to. A positive match would clear up filiation or
paternity. In Tijing vs. Court of Appeals, this Court has acknowledged
the strong weight of DNA testing…
Moreover, in our en banc decision in People v. Yatar,27 we affirmed
the conviction of the accused for rape with homicide, the principal
evidence for which included DNA test results. We did a lengthy
discussion of DNA, the process of DNA testing and the reasons for its
admissibility in the context of our own Rules of Evidence:
Deoxyribonucleic Acid, or DNA, is a molecule that encodes the
genetic information in all living organisms. A person’s DNA is the
same in each cell and it does not change throughout a person’s
lifetime; the DNA in a person’s blood is the same as the DNA found
in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus,
urine, skin tissue, and vaginal and rectal cells. Most importantly,
because of polymorphisms in human genetic structure, no two
individuals have the same DNA, with the notable exception of
identical twins.
xxx xxx xxx
In assessing the probative value of DNA evidence, courts should
consider, inter alia, the following factors: how the samples were
collected, how they were handled, the possibility of contamination
of the samples, the procedure followed in analyzing the samples,
whether proper standards and procedures were followed in
conducting the tests, and the qualification of the analyst who
conducted the tests.
In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly
qualified by the prosecution as an expert witness on DNA print or
identification techniques. Based on Dr. de Ungria’s testimony, it was
determined that the gene type and DNA profile of appellant are
identical to that of the extracts subject of examination. The blood
sample taken from the appellant showed that he was of the
following gene types: vWA 15/19, TH01 7/8, DHFRP29/10 and
CSF1PO 10/11, which are identical with semen taken from the
victim’s vaginal canal. Verily, a DNA match exists between the
semen found in the victim and the blood sample given by the
appellant in open court during the course of the trial.
Admittedly, we are just beginning to integrate these advances in
science and technology in the Philippine criminal justice system, so
we must be cautious as we traverse these relatively uncharted
waters. Fortunately, we can benefit from the wealth of persuasive
jurisprudence that has developed in other jurisdictions. Specifically,
the prevailing doctrine in the U.S. has proven instructive.
In Daubert v. Merrell Dow (509 U.S. 579 (1993); 125 L. Ed. 2d 469) it
was ruled that pertinent evidence based on scientifically valid
principles could be used as long as it was relevant and reliable.
Judges, under Daubert, were allowed greater discretion over which
testimony they would allow at trial, including the introduction of
new kinds of scientific techniques. DNA typing is one such novel
procedure.
Under Philippine law, evidence is relevant when it relates directly to
a fact in issue as to induce belief in its existence or non-existence.
Applying the Daubert test to the case at bar, the DNA evidence
obtained through PCR testing and utilizing STR analysis, and which
was appreciated by the court a quo is relevant and reliable since it is
reasonably based on scientifically valid principles of human genetics
and molecular biology.
Significantly, we upheld the constitutionality of compulsory DNA
testing and the admissibility of the results thereof as evidence. In
that case, DNA samples from semen recovered from a rape victim’s
vagina were used to positively identify the accused Joel "Kawit"
Yatar as the rapist. Yatar claimed that the compulsory extraction of
his blood sample for DNA testing, as well as the testing itself,
violated his right against self-incrimination, as embodied in both
Sections 12 and 17 of Article III of the Constitution. We addressed
this as follows:
The contention is untenable. The kernel of the right is not against all
compulsion, but against testimonial compulsion. The right against
self-incrimination is simply against the legal process of extracting
from the lips of the accused an admission of guilt. It does not apply
where the evidence sought to be excluded is not an incrimination
but as part of object evidence.
Over the years, we have expressly excluded several kinds of object
evidence taken from the person of the accused from the realm of
self-incrimination. These include photographs,28 hair,29 and other
bodily substances.30 We have also declared as constitutional several
procedures performed on the accused such as pregnancy tests for
women accused of adultery, 31 expulsion of morphine from one’s
mouth32 and the tracing of one’s foot to determine its identity with
bloody footprints.33 In Jimenez v. Cañizares,34 we even authorized
the examination of a woman’s genitalia, in an action for annulment
filed by her husband, to verify his claim that she was impotent, her
orifice being too small for his penis. Some of these procedures were,
to be sure, rather invasive and involuntary, but all of them were
constitutionally sound. DNA testing and its results, per our ruling
in Yatar,35 are now similarly acceptable.
Nor does petitioner’s invocation of his right to privacy persuade us.
In Ople v. Torres,36 where we struck down the proposed national
computerized identification system embodied in Administrative
Order No. 308, we said:
In no uncertain terms, we also underscore that the right to privacy
does not bar all incursions into individual privacy. The right is not
intended to stifle scientific and technological advancements that
enhance public service and the common good... Intrusions into the
right must be accompanied by proper safeguards that enhance
public service and the common good.
Historically, it has mostly been in the areas of legality of searches
and seizures,37 and the infringement of privacy of
communication38 where the constitutional right to privacy has been
critically at issue. Petitioner’s case involves neither and, as already
stated, his argument that his right against self-incrimination is in
jeopardy holds no water. His hollow invocation of his constitutional
rights elicits no sympathy here for the simple reason that they are
not in any way being violated. If, in a criminal case, an accused
whose very life is at stake can be compelled to submit to DNA
testing, we see no reason why, in this civil case, petitioner herein
who does not face such dire consequences cannot be ordered to do
the same.
DNA paternity testing first came to prominence in the United States,
where it yielded its first official results sometime in 1985. In the
decade that followed, DNA rapidly found widespread general
acceptance.39 Several cases decided by various State Supreme
Courts reflect the total assimilation of DNA testing into their rules of
procedure and evidence.
The case of Wilson v. Lumb40 shows that DNA testing is so commonly
accepted that, in some instances, ordering the procedure has
become a ministerial act. The Supreme Court of St. Lawrence
County, New York allowed a party who had already acknowledged
paternity to subsequently challenge his prior acknowledgment. The
Court pointed out that, under the law, specifically Section 516 of the
New York Family Court Act, the Family Court examiner had the duty,
upon receipt of the challenge, to order DNA tests:41
§ 516-a. Acknowledgment of paternity. (a) An
acknowledgment of paternity executed pursuant to section
one hundred eleven-k of the social services law or section
four thousand one hundred thirty-five-b of the public
health law shall establish the paternity of and liability for
the support of a child pursuant to this act. Such
acknowledgment must be reduced to writing and filed
pursuant to section four thousand one hundred thirty-five-
b of the public health law with the registrar of the district in
which the birth occurred and in which the birth certificate
has been filed. No further judicial or administrative
proceedings are required to ratify an unchallenged
acknowledgment of paternity.
(b) An acknowledgment of paternity executed pursuant to
section one hundred eleven-k of the social services law or
section four thousand one hundred thirty-five-b of the
public health law may be rescinded by either signator’s
filing of a petition with the court to vacate the
acknowledgment within the earlier of sixty days of the date
of signing the acknowledgment or the date of an
administrative or a judicial proceeding (including a
proceeding to establish a support order) relating to the
child in which either signator is a party. For purposes of this
section, the "date of an administrative or a judicial
proceeding" shall be the date by which the respondent is
required to answer the petition. After the expiration of
sixty days of the execution of the acknowledgment, either
signator may challenge the acknowledgment of paternity in
court only on the basis of fraud, duress, or material mistake
of fact, with the burden of proof on the party challenging
the voluntary acknowledgment. Upon receiving a party’s
challenge to an acknowledgment, the court shall order
genetic marker tests or DNA tests for the determination of
the child’s paternity and shall make a finding of paternity,
if appropriate, in accordance with this article. Neither
signator’s legal obligations, including the obligation for
child support arising from the acknowledgment, may be
suspended during the challenge to the acknowledgment
except for good cause as the court may find. If a party
petitions to rescind an acknowledgment and if the court
determines that the alleged father is not the father of the
child, or if the court finds that an acknowledgment is
invalid because it was executed on the basis of fraud,
duress, or material mistake of fact, the court shall vacate
the acknowledgment of paternity and shall immediately
provide a copy of the order to the registrar of the district in
which the child’s birth certificate is filed and also to the
putative father registry operated by the department of
social services pursuant to section three hundred seventy-
two-c of the social services law. In addition, if the mother
of the child who is the subject of the acknowledgment is in
receipt of child support services pursuant to title six-A of
article three of the social services law, the court shall
immediately provide a copy of the order to the child
support enforcement unit of the social services district that
provides the mother with such services.
(c) A determination of paternity made by any other state,
whether established through the parents’ acknowledgment
of paternity or through an administrative or judicial
process, must be accorded full faith and credit, if and only if
such acknowledgment meets the requirements set forth in
section 452(a)(7) of the social security act.
(emphasis supplied)
DNA testing also appears elsewhere in the New York Family Court
Act:42
§532. Genetic marker and DNA tests; admissibility of records or
reports of test results; costs of tests.
a) The court shall advise the parties of their right to one or
more genetic marker tests or DNA tests and, on the court’s
own motion or the motion of any party, shall order the
mother, her child and the alleged father to submit to one
or more genetic marker or DNA tests of a type generally
acknowledged as reliable by an accreditation body
designated by the secretary of the federal department of
health and human services and performed by a laboratory
approved by such an accreditation body and by the
commissioner of health or by a duly qualified physician to
aid in the determination of whether the alleged father is or
is not the father of the child. No such test shall be ordered,
however, upon a written finding by the court that it is not
in the best interests of the child on the basis of res
judicata, equitable estoppel, or the presumption of
legitimacy of a child born to a married woman. The record
or report of the results of any such genetic marker or DNA
test ordered pursuant to this section or pursuant to section
one hundred eleven-k of the social services law shall be
received in evidence by the court pursuant to subdivision
(e) of rule forty-five hundred eighteen of the civil practice
law and rules where no timely objection in writing has been
made thereto and that if such timely objections are not
made, they shall be deemed waived and shall not be heard
by the court. If the record or report of the results of any
such genetic marker or DNA test or tests indicate at least
a ninety-five percent probability of paternity, the
admission of such record or report shall create a
rebuttable presumption of paternity, and shall establish, if
unrebutted, the paternity of and liability for the support
of a child pursuant to this article and article four of this
act.
(b) Whenever the court directs a genetic marker or DNA
test pursuant to this section, a report made as provided in
subdivision (a) of this section may be received in evidence
pursuant to rule forty-five hundred eighteen of the civil
practice law and rules if offered by any party.
(c) The cost of any test ordered pursuant to subdivision (a)
of this section shall be, in the first instance, paid by the
moving party. If the moving party is financially unable to
pay such cost, the court may direct any qualified public
health officer to conduct such test, if practicable;
otherwise, the court may direct payment from the funds of
the appropriate local social services district. In its order of
disposition, however, the court may direct that the cost of
any such test be apportioned between the parties
according to their respective abilities to pay or be assessed
against the party who does not prevail on the issue of
paternity, unless such party is financially unable to pay.
(emphasis supplied)
In R.E. v. C.E.W.,43 a decision of the Mississippi Supreme Court, DNA
tests were used to prove that H.W., previously thought to be an
offspring of the marriage between A.C.W. and C.E.W., was actually
the child of R.E. with whom C.E.W. had, at the time of conception,
maintained an adulterous relationship.
In Erie County Department of Social Services on behalf of Tiffany
M.H. v. Greg G.,44 the 4th Department of the New York Supreme
Court’s Appellate Division allowed G.G., who had been adjudicated
as T.M.H.’s father by default, to have the said judgment vacated,
even after six years, once he had shown through a genetic marker
test that he was not the child’s father. In this case, G.G. only
requested the tests after the Department of Social Services, six
years after G.G. had been adjudicated as T.M.H.’s father, sought an
increase in his support obligation to her.
In Greco v. Coleman,45 the Michigan Supreme Court while ruling on
the constitutionality of a provision of law allowing non-modifiable
support agreements pointed out that it was because of the difficulty
of determining paternity before the advent of DNA testing that such
support agreements were necessary:
As a result of DNA testing, the accuracy with which paternity can be
proven has increased significantly since the parties in this lawsuit
entered into their support agreement…(current testing methods can
determine the probability of paternity to 99.999999% accuracy).
However, at the time the parties before us entered into the
disputed agreement, proving paternity was a very significant
obstacle to an illegitimate child's access to child support. The first
reported results of modern DNA paternity testing did not occur until
1985. ("In fact, since its first reported results in 1985, DNA matching
has progressed to 'general acceptance in less than a decade'"). Of
course, while prior blood-testing methods could exclude some
males from being the possible father of a child, those methods could
not affirmatively pinpoint a particular male as being the father.
Thus, when the settlement agreement between the present parties
was entered in 1980, establishing paternity was a far more difficult
ordeal than at present. Contested paternity actions at that time
were often no more than credibility contests. Consequently, in every
contested paternity action, obtaining child support depended not
merely on whether the putative father was, in fact, the child's
biological father, but rather on whether the mother could prove to a
court of law that she was only sexually involved with one man--the
putative father. Allowing parties the option of entering into private
agreements in lieu of proving paternity eliminated the risk that the
mother would be unable meet her burden of proof.
It is worth noting that amendments to Michigan’s Paternity law
have included the use of DNA testing:46
§722.716 Pretrial proceedings; blood or tissue typing
determinations as to mother, child, and alleged father; court order;
refusal to submit to typing or identification profiling; qualifications
of person conducting typing or identification profiling;
compensation of expert; result of typing or identification profiling;
filing summary report; objection; admissibility; presumption; burden
of proof; summary disposition.
Sec. 6.
(1) In a proceeding under this act before trial, the court,
upon application made by or on behalf of either party, or
on its own motion, shall order that the mother, child, and
alleged father submit to blood or tissue typing
determinations, which may include, but are not limited to,
determinations of red cell antigens, red cell isoenzymes,
human leukocyte antigens, serum proteins, or DNA
identification profiling, to determine whether the alleged
father is likely to be, or is not, the father of the child. If
the court orders a blood or tissue typing or DNA
identification profiling to be conducted and a party
refuses to submit to the typing or DNA identification
profiling, in addition to any other remedies available, the
court may do either of the following:
(a) Enter a default judgment at the request of the
appropriate party.
 (b) If a trial is held, allow the disclosure of the
fact of the refusal unless good cause is shown for
not disclosing the fact of refusal.
(2) A blood or tissue typing or DNA identification profiling
shall be conducted by a person accredited for paternity
determinations by a nationally recognized scientific
organization, including, but not limited to, the American
association of blood banks.
xxx xxx xxx
(5) If the probability of paternity determined by the
qualified person described in subsection (2) conducting
the blood or tissue typing or DNA identification profiling is
99% or higher, and the DNA identification profile and
summary report are admissible as provided in subsection
(4), paternity is presumed. If the results of the analysis of
genetic testing material from 2 or more persons indicate a
probability of paternity greater than 99%, the contracting
laboratory shall conduct additional genetic paternity
testing until all but 1 of the putative fathers is eliminated,
unless the dispute involves 2 or more putative fathers
who have identical DNA.
(6) Upon the establishment of the presumption of paternity
as provided in subsection (5), either party may move for
summary disposition under the court rules. this section
does not abrogate the right of either party to child support
from the date of birth of the child if applicable under
section 7. (emphasis supplied)
In Rafferty v. Perkins,47 the Supreme Court of Mississippi ruled that
DNA test results showing paternity were sufficient to overthrow the
presumption of legitimacy of a child born during the course of a
marriage:
The presumption of legitimacy having been rebutted by the results
of the blood test eliminating Perkins as Justin's father, even
considering the evidence in the light most favorable to Perkins, we
find that no reasonable jury could find that Easter is not Justin's
father based upon the 99.94% probability of paternity concluded by
the DNA testing.
In S.J.F. and J.C.F. v. R.C.W.,48 the North Dakota Supreme Court
upheld an order for genetic testing given by the Court of Appeals,
even after trial on the merits had concluded without such order
being given. Significantly, when J.C.F., the mother, first filed the case
for paternity and support with the District Court, neither party
requested genetic testing. It was only upon appeal from dismissal of
the case that the appellate court remanded the case and ordered
the testing, which the North Dakota Supreme Court upheld.
The case of Kohl v. Amundson,49 decided by the Supreme Court of
South Dakota, demonstrated that even default judgments of
paternity could be vacated after the adjudicated father had, through
DNA testing, established non-paternity. In this case, Kohl, having
excluded himself as the father of Amundson’s child through DNA
testing, was able to have the default judgment against him vacated.
He then obtained a ruling ordering Amundson to reimburse him for
the amounts withheld from his wages for child support. The Court
said "(w)hile Amundson may have a remedy against the father of
the child, she submit(ted) no authority that require(d) Kohl to
support her child. Contrary to Amundson's position, the fact that a
default judgment was entered, but subsequently vacated, (did) not
foreclose Kohl from obtaining a money judgment for the amount
withheld from his wages."
In M.A.S. v. Mississippi Dept. of Human Services,50 another case
decided by the Supreme Court of Mississippi, it was held that even if
paternity was established through an earlier agreed order of
filiation, child support and visitation orders could still be vacated
once DNA testing established someone other than the named
individual to be the biological father. The Mississippi High Court
reiterated this doctrine in Williams v. Williams.51
The foregoing considered, we find no grave abuse of discretion on
the part of the public respondent for upholding the orders of the
trial court which both denied the petitioner’s motion to dismiss and
ordered him to submit himself for DNA testing. Under Rule 65 of the
1997 Rules of Civil Procedure, the remedy of certiorari is only
available "when any tribunal, board or officer has acted without or
in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal,
nor any plain, speedy and adequate remedy in the ordinary course
of law."52 In Land Bank of the Philippines v. the Court of
Appeals53 where we dismissed a special civil action for certiorari
under Rule 65, we discussed at length the nature of such a petition
and just what was meant by "grave abuse of discretion":
Grave abuse of discretion implies such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction or, in
other words, where the power is exercised in an arbitrary manner
by reason of passion, prejudice, or personal hostility, and it must
be so patent or gross as to amount to an evasion of a positive duty
or to a virtual refusal to perform the duty enjoined or to act at all
in contemplation of law.
The special civil action for certiorari is a remedy designed for the
correction of errors of jurisdiction and not errors of judgment.
The raison d’etre for the rule is when a court exercises its
jurisdiction, an error committed while so engaged does not deprive
it of the jurisdiction being exercised when the error is committed. If
it did, every error committed by a court would deprive it of its
jurisdiction and every erroneous judgment would be a void
judgment. In such a scenario, the administration of justice would
not survive. Hence, where the issue or question involved affects the
wisdom or legal soundness of the decision—not the jurisdiction of
the court to render said decision—the same is beyond the province
of a special civil action for certiorari.
The proper recourse of the aggrieved party from a decision of the
CA is a petition for review on certiorari under Rule 45 of the Revised
Rules of Court. On the other hand, if the error subject of the
recourse is one of jurisdiction, or the act complained of was
perpetrated by a quasi-judicial officer or agency with grave abuse of
discretion amounting to lack or excess of jurisdiction, the proper
remedy available to the aggrieved party is a petition for certiorari
under Rule 65 of the said Rules. (emphasis supplied)
In the instant case, the petitioner has in no way shown any
arbitrariness, passion, prejudice or personal hostility that would
amount to grave abuse of discretion on the part of the Court of
Appeals. The respondent court acted entirely within its jurisdiction
in promulgating its decision and resolution, and any error made
would have only been an error in judgment. As we have discussed,
however, the decision of the respondent court, being firmly
anchored in law and jurisprudence, was correct.
Epilogue
For too long, illegitimate children have been marginalized by fathers
who choose to deny their existence. The growing sophistication of
DNA testing technology finally provides a much needed equalizer for
such ostracized and abandoned progeny. We have long believed in
the merits of DNA testing and have repeatedly expressed as much in
the past. This case comes at a perfect time when DNA testing has
finally evolved into a dependable and authoritative form of evidence
gathering. We therefore take this opportunity to forcefully reiterate
our stand that DNA testing is a valid means of determining
paternity.

WHEREFORE, in view of the foregoing, the petition is hereby

DENIED. The Court of Appeals’ decision dated January 28, 2004 in
CA-G.R. SP No. 80961 is hereby AFFIRMED in toto.

Costs against petitioner.

SO ORDERED.
THIRD DIVISION
G.R. No. 153798 September 2, 2005
BELEN SAGAD ANGELES, Petitioners,
vs.
ALELI "CORAZON" ANGELES MAGLAYA, Respondent.
DECISION
GARCIA, J.:
In this petition for review on certiorari under Rule 45 of the Rules of
Court, petitioner Belen Sagad Angeles seeks to set aside the
Decision dated May 29, 20021 of the Court of Appeals in CA G.R. CV
No. 66037, reversing an earlier Order of the Regional Trial Court at
Caloocan City which dismissed the petition for the settlement of the
intestate estate of Francisco Angeles, thereat commenced by the
herein respondent Aleli "Corazon" Angeles-Maglaya.
The legal dispute between the parties started when, on March 25,
1998, in the Regional Trial Court (RTC) at Caloocan City, respondent
filed a petition2 for letters of administration and her appointment as
administratrix of the intestate estate of Francisco M. Angeles
(Francisco, hereinafter). In the petition, docketed as Special
Proceedings No. C-2140 and raffled to Branch 120 of the court,
respondent alleged, among other things, the following:
1. That Francisco, a resident of 71 B. Serrano St., Grace Park,
Caloocan, died intestate on January 21, 1998 in the City of Manila,
leaving behind four (4) parcels of land and a building, among other
valuable properties;
2. That there is a need to appoint an administrator of Francisco’s
estate;
3. That she (respondent) is the sole legitimate child of the deceased
and Genoveva Mercado, and, together with petitioner, Belen S.
Angeles, decedent’s wife by his second marriage, are the surviving
heirs of the decedent; and
4. That she has all the qualifications and none of the
disqualifications required of an administrator.
Petitioner opposed the basic petition and prayed that she, instead
of respondent, be made the administratrix of Francisco’s estate. 3 In
support of her opposition and plea, petitioner alleged having
married Francisco on August 7, 1948 before Judge Lucio M. Tianco
of the Municipal Court of Rizal, a union which was ratified two (2)
months later in religious rites at the Our Lady of Grace Parish in
Caloocan City, and that Francisco represented in their marriage
contract that he was single at that time. Petitioner also averred that
respondent could not be the daughter of Francisco for, although she
was recorded as Francisco’s legitimate daughter, the corresponding
birth certificate was not signed by him. Pressing on, petitioner
further alleged that respondent, despite her claim of being the
legitimate child of Francisco and Genoveva Mercado, has not
presented the marriage contract between her supposed parents or
produced any acceptable document to prove such union. And
evidently to debunk respondent’s claim of being the only child of
Francisco, petitioner likewise averred that she and Francisco had,
during their marriage, legally adopted Concesa A. Yamat, et al.
Petitioner thus urged that she, being the surviving spouse of
Francisco, be declared as possessed of the superior right to the
administration of his estate.
In her reply to opposition, respondent alleged, inter alia, that per
certification of the appropriate offices, the January to December
1938 records of marriages of the Civil Registrar of Bacolor,
Pampanga where the alleged 1938 Francisco-Genoveva wedding
took place, were destroyed. In the same reply, respondent
dismissed as of little consequence the adoption adverted to owing
to her having interposed with the Court of Appeals a petition to
nullify the decree of adoption entered by the RTC at Caloocan.4
Issues having been joined, trial ensued. Respondent, as petitioner a
quo, commenced the presentation of her evidence by taking the
witness stand. She testified having been born on November 20,
1939 as the legitimate child of Francisco M. Angeles and Genoveva
Mercado, who died in January 1988.5 She also testified having been
in open and continuous possession of the status of a legitimate
child. Four (4) other witnesses testified on her behalf, namely:
Tomas Angeles,6 Francisco Yaya,7 Jose O. Carreon8 and Paulita
Angeles de la Cruz.9 Respondent also offered in evidence her birth
certificate which contained an entry stating that she was born at the
Mary Johnston Hospital, Tondo, Manila, to Francisco Angeles and
Genoveva Mercado and whereon the handwritten word "Yes"
appears on the space below the question "Legitimate? (Legitimo?)";
pictures taken during respondent’s wedding as bride to Atty.
Guillermo T. Maglaya; and a copy of her marriage contract. Likewise
offered were her scholastic and government service records.
After respondent rested her case following her formal offer of
exhibits, petitioner filed a "Motion to Dismiss" under Section 1(g),
Rule 16 of the Rules of Court. In it, she prayed for the dismissal of
the petition for letters of administration on the ground that the
petition failed "to state or prove a cause of action", it being her
stated position that "[P]etitioner [Corzaon], by her evidence, failed
to establish her filiation vis-à-vis the decedent, i.e., that she is in fact
a legitimate child of Francisco M. Angeles."10
To the motion to dismiss, respondent interposed an opposition,
followed by petitioner’s reply, to which respondent countered with
a rejoinder.
Eventually, in an Order dated July 12, 1999,11 the trial court, on its
finding that respondent failed to prove her filiation as legitimate
child of Francisco, dismissed the petition, thus:
WHEREFORE, the instant petition is hereby ordered DISMISSED for
failure of the [respondent] to state a cause of action in accordance
with Section 1(g) of Rule 16 of the 1997 Rules of Civil of Procedure.
(Word in bracket added]
Respondent then moved for reconsideration, which motion was
denied by the trial court in its Order of December 17,
1999.12 Therefrom, respondent went on appeal to the Court of
Appeals where her recourse was docketed as CA-G.R. CV No. 66037.
As stated at the threshold hereof, the Court of Appeals, in its
assailed Decision dated May 29, 2002,13 reversed and set aside the
trial court’s order of dismissal and directed it to appoint respondent
as administratrix of the estate of Francisco, to wit:
WHEREFORE, the appealed order of dismissal is REVERSED. The Trial
Court is hereby ordered to appoint petitioner-appellant Aleli
"Corazon" Angeles as administratrix of the intestate estate of
Francisco Angeles.
SO ORDERED.
The appellate court predicated its ruling on the interplay of the
following main premises:
1. Petitioner’s Motion to Dismiss filed with the trial court, albeit
premised on the alleged failure of the underlying petition for letter
of administration to state or prove a cause of action, actually
partakes of a demurrer to evidence under Section 1 of Rule 33;14
2. Petitioner’s motion being a demurer, it follows that she thereby
waived her right to present opposing evidence to rebut
respondent’s testimonial and documentary evidence; and
3. Respondent has sufficiently established her legitimate filiation
with the deceased Francisco.
Hence, petitioner’s instant petition for review on certiorari, on the
submission that the Court of Appeals erred: (1) in reversing the trial
court’s order of dismissal;15 (2) in treating her motion to dismiss as a
demurrer to evidence; (3) in holding that respondent is a legitimate
daughter of Francisco; and (4) in decreeing respondent’s
appointment as administratrix of Francisco’s intestate estate.
We resolve to grant the petition.
The principal issue tendered in this case boils down to the question
of whether or not respondent is the legitimate child of decedent
Francisco M. Angeles and Genoveva Mercado. The Court of Appeals
resolved the issue in the affirmative and, on the basis of such
determination, ordered the trial court to appoint respondent as
administratrix of Francisco’s estate.
We are unable to lend concurrence to the appellate court’s
conclusion on the legitimate status of respondent, or, to be precise,
on her legitimate filiation to the decedent. A legitimate child is a
product of, and, therefore, implies a valid and lawful marriage.
Remove the element of lawful union and there is strictly no
legitimate filiation between parents and child. Article 164 of the
Family Code cannot be more emphatic on the matter: "Children
conceived or born during the marriage of the parents are
legitimate."
In finding for respondent, the Court of Appeals, citing and extensibly
quoting from Tison vs. Court of Appeals,16stated that since
petitioner "opted not to present any contrary evidence", the
presumption on respondent’s legitimacy stands "unrebutted."17
Following is an excerpt from Tison:
It seems that both the court a quo and respondent appellate court
have regrettably overlooked the universally recognized presumption
on legitimacy. There is no presumption of the law more firmly
established and founded on sounder morality and more convincing
than the presumption that children born in wedlock are
legitimate. And well-settled is the rule that the issue of legitimacy
cannot be attacked collaterally.
The rationale for this rule has been explained in this wise:
‘The presumption of legitimacy in the Family Code . . .
actually fixes a status for the child born in wedlock, and that civil
status cannot be attacked collaterally. xxx
xxx xxx xxx
‘Upon the expiration of the periods provided in Article 170 [of the
Family Code], the action to impugn the legitimacy of a child can no
longer be bought. The status conferred by the presumption,
therefore, becomes fixed, and can no longer be questioned. The
obvious intention of the law is to prevent the status of a child born
in wedlock from being in a state of uncertainty. It also aims to force
early action to settle any doubt as to the paternity of such child so
that the evidence material to the matter . . . may still be easily
available.’
xxxxxxxxx
‘Only the husband can contest the legitimacy of a child born to his
wife . . . .’(Words in bracket added; Emphasis ours)
Contextually, the correct lesson of Tison, which the appellate court
evidently misapplied, is that: (a) a child is presumed legitimate only
if conceived or born in wedlock; and (b) the presumptive legitimacy
of such child cannot be attacked collaterally.
A party in whose favor the legal presumption exists may rely on and
invoke such legal presumption to establish a fact in issue. He need
not introduce evidence to prove that fact.18 For, a presumption
is prima facie proof of the fact presumed. However, it cannot be
over-emphasized, that while a fact thus prima facie established by
legal presumption shall, unless overthrown, stand as proved, 19 the
presumption of legitimacy under Article 164 of the Family
Code20 may be availed only upon convincing proof of the factual
basis therefor, i.e., that the child’s parents were legally married and
that his/her conception or birth occurred during the subsistence of
that marriage. Else, the presumption of law that a child is legitimate
does not arise.
In the case at bench, the Court of Appeals, in its decision under
review, did not categorically state from what facts established
during the trial was the presumption of respondent’s supposed
legitimacy arose. But even if perhaps it wanted to, it could not have
possibly done so. For, save for respondent’s gratuitous assertion and
an entry in her certificate of birth, there is absolutely no proof of the
decedent’s marriage to respondent’s mother, Genoveva Mercado.
To stress, no marriage certificate or marriage contract – doubtless
the best evidence of Francisco’s and Genoveva’s marriage, if one
had been solemnized21 – was offered in evidence. No priest, judge,
mayor, or other solemnizing authority was called to the witness box
to declare that he solemnized the marriage between the two. None
of the four (4) witnesses respondent presented could say anything
about, let alone affirm, that supposed marriage. At best, their
testimonies proved that respondent was Francisco’s daughter. For
example, Tomas Angeles and Paulita Angeles de la Cruz testified
that they know respondent to be their cousin because his (Tomas’)
father and her (Paulita’s) mother, who are both Francisco’s siblings,
told them so.22 And one Jose Carreon would testify seeing
respondent in 1948 in Francisco’s house in Caloocan, the same
Francisco who used to court Genoveva before the war. 23 In all, no
evidence whatsoever was presented of the execution of the
Francisco Angeles-Genoveva Mercado marriage contract; when and
where their marriage was solemnized; the identity of the
solemnizing officer; the persons present, and like significant details.
While perhaps not determinative of the issue of the existence of
marriage between Francisco and Genoveva, we can even go to the
extent of saying that respondent has not even presented a witness
to testify that her putative parents really held themselves out to the
public as man-and-wife. Clearly, therefore, the Court of Appeals
erred in crediting respondent with the legal presumption of
legitimacy which, as above explained, should flow from a lawful
marriage between Francisco and Genevova. To reiterate, absent
such a marriage, as here, there is no presumption of legitimacy and,
therefore, there was really nothing for petitioner to rebut.
Parenthetically, for all her unyielding stance that her mother and
Francisco Angeles were married in 1938, respondent never, thru the
years, even question what would necessarily be a bigamous
Francisco-Belen Sagad marriage. Ironical as it may seem, respondent
herself undermined her very own case. As it were, she made certain
judicial admission negating her own assertion – as well as the
appellate court’s conclusion - that Francisco was legally married to
Genoveva. As may be recalled, respondent had declared that her
mother Genoveva died in 1988, implying, quite clearly, that when
Francisco contracted marriage with petitioner Belen S. Angeles
in 1948, Genoveva and Francisco were already "spouses". Now,
then, if, as respondent maintained despite utter lack of evidence,
that Genoveva Mercado and Francisco were married in 1938, it
follows that the marriage of Francisco to petitioner Belen Angeles in
1948, or prior to Genoveva’s death, would necessarily have to be
bigamous, hence void,24 in which case petitioner could not be, as
respondent alleged in her petition for letters of administration, a
"surviving spouse" of the decedent. We quote the pertinent
allegation:
4. The surviving heirs of decedent are the petitioner [Corazon]
herself who is 58 years old, and BELEN S. Angeles, the surviving
spouse of deceased Francisco M. Angeles by his second marriage,
who is about 77 years old . . . .YEARS OLD . . . " (Emphasis and word
in bracket added)
We can concede, because Article 172 of the Family Code appears to
say so, that the legitimate filiation of a child can be established by
any of the modes therein defined even without direct evidence of
the marriage of his/her supposed parents. Said article 172 reads:
Art. 172. The filiation of legitimate children is established by any of Arturo Tolentino, commenting on the probative value of the entries
the following: in a certificate of birth, wrote:
1. The record of birth appearing in the civil register or a final xxx if the alleged father did not intervene in the making of the birth
judgments; or certificate, the putting of his name by the mother or doctor or
registrar is void; the signature of the alleged father is necessary. 27
2. An admission of legitimate filiation in a public document or a
private handwritten instrument and signed by the parent The conclusion reached by the Court of Appeals that the Birth
concerned. Certificate of respondent, unsigned as it were by Francisco and
Genoveva, establishes – and "indubitably" at that - not only
In the absence of the foregoing evidence, the legitimate filiation respondent’s filiation to Francisco but even her being a legitimate
shall be proved by: daughter of Francisco and Genoveva, taxes credulity to the limit. In
a very real sense, the appellate court regarded such certificate as
defining proof of filiation, and not just filiation but of legitimate
1. The open and continuous possession of the status of a legitimate
filiation, by inferring from it that Francisco and Genoveva are legally
child; or
married. In the apt words of petitioner, the appellate court, out of a
Birth Certificate signed by a physician who merely certified having
2. Any other means allowed by the Rules of Court and special laws.
attended "the birth of a child who was born alive at 3:50
P.M. ", created " a marriage that of ‘ Francisco and Genoveva’, and
Here, respondent presented, in support of her claim of legitimacy, a
filiation (that said child) is the daughter of ‘Francisco’"’28
copy of her Birth Certificate dated November 23, 1939 issued by the
Civil Registrar of the City of Manila (Exh. "E"). In it, her birth was
It cannot be over-emphasized that the legitimate filiation of a child
recorded as the legitimate child of Francisco Angeles and Genoveva
is a matter fixed by law itself.29 It cannot, as the decision under
Mercado. And the word "married" is written in the certificate to
review seems to suggest, be made dependent on the declaration of
indicate the union of Francisco and Genoveva.
the attending physician or midwife, or that of the mother of the
newborn child. For then, an unwed mother, with or without the
Petitioner, however, contends, citing jurisprudence, that "[I]t was
participation of a doctor or midwife, could veritably invest
error for the Court of Appeals to have ruled . . .
legitimate status to her offspring through the simple expedient of
that [respondent’s] Birth Certificate indubitably establishes that she
writing the putative father’s name in the appropriate space in the
is the legitimate daughter of Francisco and Genoveva who are
birth certificate. A long time past, this Court cautioned against
legally married".
according a similar unsigned birth certificate prima facie evidentiary
value of filiation:
The contention commends itself for concurrence. The reason is as
simple as it is elementary: the Birth Certificate presented was not
Give this certificate evidential relevancy, and we thereby pave the
signed by Francisco against whom legitimate filiation is asserted.
way for any scheming unmarried mother to extort money for her
Not even by Genoveva. It was signed by the attending physician,
child (and herself) from any eligible bachelor or affluent pater
one Rebecca De Guzman, who certified to having attended the birth
familias. How? She simply causes the midwife to state in the birth
of a child. Such certificate, albeit considered a public record of a
certificate that the newborn babe is her legitimate offspring with
private document is, under Section 23, Rule 132 of the Rules of
that individual and the certificate will be accepted for registration . .
Court, evidence only of the fact which gave rise to its execution: the
. . And any lawyer with sufficient imagination will realize the exciting
fact of birth of a child.25 Jurisprudence teaches that a birth
possibilities from such mischief of such prima facie evidence – when
certificate, to be considered as validating proof of paternity and as
and if the "father" dies in ignorance of the fraudulent design xxx 30
an instrument of recognition, must be signed by the father and
mother jointly, or by the mother alone if the father refuses. 26 Dr.
Just like her Birth Certificate, respondent can hardly derive comfort
from her marriage contract to Atty. Maglaya and from her student
and government records which indicated or purported to show that
Francisco Angeles is her father. The same holds true for her wedding
pictures which showed Francisco giving respondent’s hands in
marriage. These papers or documents, unsigned as they are by
Francisco or the execution of which he had no part, are not
sufficient evidence of filiation or recognition.31 And needless to
stress, they cannot support a finding of the legitimate union of
Francisco and Genoveva.
The argument may be advanced that the aforesaid wedding
pictures, the school and service records and the testimony of
respondent’s witnesses lend support to her claim of enjoying open
and continuous possession of the status of a child of Francisco. The
Court can even concede that respondent may have been the natural
child of Francisco with Genoveva. Unfortunately, however, that
angle is not an, or at issue in the case before us. For, respondent
peremptorily predicated her petition for letters of administration on
her being a legitimate child of Francisco who was legally married to
her mother, Genoveva, propositions which we have earlier refuted
herein.
If on the foregoing score alone, this Court could very well end this
disposition were it not for another compelling consideration which
petitioner has raised and which we presently take judicially notice
of.
As may be recalled, respondent, during the pendency of the
proceedings at the trial court, filed with the Court of Appeals a
petition for the annulment of the decision of the RTC Caloocan
granting the petition of spouses Francisco Angeles and petitioner
Belen S. Angeles for the adoption of Concesa A. Yamat and two
others. In that petition, docketed with the appellate court as CA-
G.R. SP No. 47832 and captioned "Aleli ‘Corazon’ Angeles Maglaya
vs. Hon Jaime T. Hamoy, Consesa A. Yamat, Teodora A. Santos,
Franco Angeles and Belen S. Angeles", respondent alleged that as
legitimate daughter of Francisco, she should have been notified of
the adoption proceedings.
Following a legal skirmish, the Court of Appeals referred the
aforementioned annulment case to RTC, Caloocan for reception of
evidence. Eventually, in a Decision32 dated December 17, 2003, the
Court of Appeals dismissed CA-G.R. SP No. 47832 on the
ground, inter alia, that herein respondent is not, contrary to her
claim, a "legitimate daughter" of Francisco, nor "a child of a lawful
wedlock between Francisco M. Angeles and Genoveva Y. Mercado".
Wrote the appellate court in that case:
Petitioner [Aleli "Corazon Maglaya] belabors with repetitious
persistence the argument that she is a legitimate child or the only
daughter of Francisco M. Angeles and Genoveva Y. Mercado . . . .
In the case at bench, other than the self-serving declaration of the
petitioner, there is nothing in the record to support petitioner’s
claim that she is indeed a legitimate child of the late Francisco M.
Angeles and Genoveva Y. Mercado. xxx In other words, Francisco M.
Angeles was never married before or at anytime prior to his
marriage to Belen Sagad, contrary to the claim of petitioner that
Francisco M. Angeles and Genoveva Y. Mercado were married in
1938
While petitioner may have submitted certifications to the effect that
the records of marriages during the war years . . . were totally
destroyed, no secondary evidence was presented by petitioner to
prove the existence of the marriage between Francisco M. Angeles
and Genoveva Y. Mercado, even as no witness was presented to
confirm the celebration of such marriage . . . .
Petitioner presented pictures. x x x However, it is already settled law
that photographs are not sufficient evidence of filiation or
acknowledgment.
To be sure, very little comfort is provided by petitioner’s birth
certificate and even her marriage contract.. . . Reason: These
documents were not signed by Francisco . . . . Equally
inconsequential are petitioner’s school records . . . . all these lacked
the signatures of both Francisco and Genoveva . . . .
xxx xxx xxx
Having failed to prove that she is the legitimate daughter or
acknowledged natural child of the late Francisco M. Angeles,
petitioner cannot be a real party in interest in the adoption
proceedings, as her consent thereto is not essential or required.
(Emphasis in the original; words in bracket added)
Significantly, the aforesaid December 17, 2003 Decision of the
appellate court in CA-G.R. SP No.47832 was effectively affirmed by
this Court via its Resolution dated August 9, 2004 in G.R. No.
163124, denying Aleli "Corazon" Maglaya’s petition for Review on
Certiorari,33 and Resolution dated October 20, 2004,34 denying with
"FINALITY" her motion for reconsideration. Another Resolution
dated January 24, 2005 resolved to "NOTE WITHOUT ACTION"
Maglaya’s second motion for reconsideration.
In the light of the ruling of the Court of Appeals in CA-G.R. SP No.
47832, as affirmed with finality by this Court in G.R. No. 163124,
there can be no serious objection to applying in this case the rule on
conclusiveness of judgment,35 one of two (2) concepts embraced in
the res judicata principle. Following the rule on conclusiveness of
judgment, herein respondent is precluded from claiming that she is
the legitimate daughter of Francisco and Genoveva Mercado. In
fine, the issue of herein respondent’s legitimate filiation to Francisco
and the latter’s marriage to Genoveva, having been judicially
determined in a final judgment by a court of competent jurisdiction,
has thereby become res judicata and may not again be resurrected
or litigated between herein petitioner and respondent or their
privies in a subsequent action, regardless of the form of the latter. 36
Lest it be overlooked, the same ruling of the appellate court in CA-
G.R. SP No. 47832, as sustained by this Court in G.R. No. 163124,
virtually confirms the ratio of the trial court’s order of dismissal in
Special Proceedings (SP) No. C-2140, i.e, that respondent failed to
establish that she is in fact a legitimate child of Francisco.
Accordingly, the question of whether or not the Motion to
Dismiss37 interposed by herein petitioner, as respondent in SP No. C-
2140, is in the nature of a demurer to evidence has become moot
and academic. It need not detain us any minute further.
Finally, it should be noted that on the matter of appointment of
administrator of the estate of the deceased, the surviving spouse is
preferred over the next of kin of the decedent. 38 When the law
speaks of "next of kin", the reference is to those who are entitled,
under the statute of distribution, to the decedent’s property; 39 one
whose relationship is such that he is entitled to share in the estate
as distributed,40 or, in short, an heir. In resolving, therefore, the
issue of whether an applicant for letters of administration is a next
of kin or an heir of the decedent, the probate court perforce has to
determine and pass upon the issue of filiation. A separate action will
only result in a multiplicity of suits. Upon this consideration, the trial
court acted within bounds when it looked into and pass upon the
claimed relationship of respondent to the late Francisco Angeles.

WHEREFORE, the herein assailed decision of the Court of Appeals is

hereby REVERSED and SET ASIDE, and the order of the trial court
dismissing Special Proceedings No. C-2140 REINSTATED.

No costs.

SO ORDERED.
SECOND DIVISION
G.R. No. 104376 February 23, 1994
ARTEMIO G. ILANO, petitioner,
vs.
THE COURT OF APPEALS and MERCEDITAS (sic) S. ILANO,
represented by her mother, LEONCIA DE LOS SANTOS, respondent.
Ernesto P. Pangalangan for petitioner.
Eduardo S. Rodriguez for private respondent.
NOCON, J.:
After the great flood, man was commanded to go forth, be fertile,
multiply and fill the earth. Others did not heed the sequence of this
command because they multiply first and then go. Corollarily, it is
now commonplace for an abandoned illegitimate offspring to sue
his father for recognition and support.
The antecedent facts are narrated in the trial court's decision, as
follows:
Leoncia first met petitioner Artemio G. Ilano while she was working
as secretary to Atty. Mariano C. Virata. Petitioner was one of the
clients of
Atty. Virata. On several occasions, she and petitioner took lunch
together. In less that a year's time, she resigned from her work.
Sometime in 1957, Leoncia, then managing a business of her own as
Namarco distributor, met petitioner again who was engaged in the
same business and they renewed acquaintances. Since then, he
would give her his unsold allocation of goods. Later, he courted her
more than four years. Their relationship became intimate and with
his promise of marriage, they eloped to Guagua, Pampanga in April,
1962. They stayed at La Mesa Apartment, located behind the
Filipinas Telephone Company branch office, of which he is the
president and general manager. He came home to her three or four
times a week.
The apartment was procured by Melencio Reyes, Officer-in-Charge
of the Filipinas Telephone Company branch office. He also took care
of the marketing and paid rentals, lights and water bills. 1 Unable to
speak the local dialect, Leoncia was provided also by Melencio with
a maid by the name of Nena. Petitioner used to give her P700.00 a
month for their expenses at home.
In June, 1962, Leoncia, who was conceiving at that time, was
fetched by petitioner and they transferred to San Juan St., Pasay
City. In October, 1962, she delivered a still-born female child at the
Manila Sanitarium. The death certificate was signed by
petitioner.2 Thereafter, while they were living at Highway 54,
Makati, private respondent Merceditas S. Ilano was born on
December 30, 1963 also at the Manila Sanitarium. Her birth was
recorded as Merceditas de los Santos Ilano, child of Leoncia
Aguinaldo de los Santos and Artemio Geluz Ilano.3 Leoncia
submitted receipts issued by the Manila Sanitarium to show that she
was confined there from December 30, 1963 until January 2, 1964
under the name of Mrs. Leoncia Ilano.4
The support by petitioner for Leoncia and Merceditas was
sometimes in the form of cash personally delivered by him, thru
Melencio, thru Elynia (niece of Leoncia)5 or thru Merceditas
herself;6 and sometimes in the form of a check like Manila Banking
Corporation Check No. 81532,7 the signature appearing thereon
having been identified by Leoncia as that of petitioner because he
often gives her checks which he issues at home and saw him sign
the checks.8 Both petitioner and his daughter admitted that the
check and the signature are those of the former.9
During the time that petitioner and Leoncia were living as husband
and wife, he showed concern as the father of Merceditas. When
Merceditas was in Grade I at the St. Joseph Parochial School, he
signed her Report Card for the fourth and fifth grading periods10 as
her parent. Those signatures were both identified by Leoncia and
Merceditas because he signed them in their residence in their
presence and of Elynia.11 Since Merceditas started to have
discernment, he was already the one whom she recognized as her
Daddy.12 He treated her as a father would to his child. He would
bring home candies, toys, and anything a child enjoys. He would
take her for a drive, eat at restaurants, and even cuddle her to
sleep.13
When petitioner ran as a candidate in the Provincial Board of Cavite,
he gave Leoncia his picture with the following dedication: "To Nene,
with best regards, Temiong."14
In May, 1963, Ruth Elynia Mabanglo, niece of Leoncia, lived with
Leoncia and petitioner. She accompanied her aunt when she started
having labor pains in the morning of December 30, 1963. Petitioner
arrived after five o'clock in the afternoon. When the nurse came to
inquire about the child, Leoncia was still unconscious so it was from
petitioner that the nurse sought the information. Inasmuch as it was
already past seven o'clock in the evening, the nurse promised to
return the following morning for his signature. However, he left an
instruction to give birth certificate to Leoncia for her signature, as
he was leaving early the following morning.
Prior to the birth of Merceditas, Elynia used to accompany her aunt
and sometimes with petitioner in his car to the Manila Sanitarium
for prenatal
check-up. At times, she used to go to his office at 615 Sales St., Sta.
Cruz, Manila, upon his instructions to get money as support and
sometimes he would send notes of explanation if he cannot come
which she in turn gave to her aunt.15 They stayed at 112 Arellano St.,
then Sta. Cruz, Manila in 1966 before they finally transferred to
Gagalangin in 1967. Petitioner lived with them up to June, 1971
when he stopped coming home.
Petitioner's defense was a total and complete denial of any
relationship with Leoncia and Merceditas. He disowned the
handwritten answers and signatures opposite column 16 of the
death certificate of a female child surnamed Ilano, although in
column 13 thereof opposite father's name the typewritten name,
Artemio G. Ilano, appears. He also denied the following: all the
notes alleged to have been received from him by Elynia for delivery
to Leoncia; the signatures appearing in Merceditas' Report Card;
and being the source of a photo of himself with a handwritten
dedication. He admitted that Manila Banking Corporation Check No.
81532 including the signature is his. He was sick on December 30,
1963 and was hospitalized on January 7, 1964. 16 He does not
understand why this case was filed against him. 17
Melencio admitted that he was the one who procured the
apartment for Leoncia, leased it in his name, paid the rentals and
bought the necessities therefor. He and Leoncia lived together and
shared the same bed. They later transferred to San Juan St., Pasay
City and to Highway 54, Makati. He stopped visiting her in March or
April, 1963 because he planned to get married with another which
he eventually did in September, 1963.
Diosdado Datu, fish vendor, usually delivered to the apartment
fishes ordered by Melencio which were received by Leoncia.
Nilda Ilano Ramos, daughter of petitioner, does not know Leoncia;
neither has she been brought to their family home in Imus, Cavite.
On December 30, 1963, her father was at their home because he got
sick on December 25, 1963 and was advised to have a complete bed
rest. Her father was hospitalized on January 7, 1964. She denied
that her father was at the Manila Sanitarium on December 30, 1963;
that he fetched a certain woman on January 2, 1964, at the Manila
Sanitarium because he was at their home at that time; and that her
father lived with a certain woman in 1963 up to June, 1971 because
all this time he was living with them in Imus, Cavite. He was working
and reporting to the office everyday and when he goes to Guagua or
Manila on business, her mother or brother goes with him.
Victoria J. Ilano, petitioner's wife, further corroborated the previous
testimonies about petitioner's sickness on December 30, 1963 and
hospitalization on January 7, 1964. It could not be true that her
husband, during the years 1963 to 1968, lived three (3) times a
week with a certain Leoncia de los Santos because her husband
never slept out of their house and that in his capacity as President
and Chairman of the Board of the Filipinas Telephone Company he
does not go to Guagua even once a year because they have a branch
manager, Melencio Reyes.
After weighing the contradictory testimonies and evidence of the
parties, the trial court was not fully satisfied that petitioner is the
father of Merceditas, on the basis of the following:
1) petitioner and Leoncia were not in cohabitation during the period
of Merceditas' conception;
2) testimony of Melencio that he frequented the apartment where
Leoncia was living, took care of all the bills and shared the same bed
with her;
3) the birth certificate of Merceditas was not signed by petitioner;
4) petitioner denied his signature in the monthly report card of
Merceditas; and
5) there is no clear and sufficient showing that support was given by
petitioner to Merceditas.
Thus it rendered judgment on April 24, 1981 dismissing the
complaint.18
Fortunately for private respondent, respondent Court of Appeals did
not share the same view as the trial court. A review of the
testimonial and documentary evidenced adduced by private
respondent led respondent court to the firm conclusion that
petitioner is her father, entitling her to support. The dispositive
portion of its decision dated December 17, 1991 reads:
WHEREFORE, the Decision appealed from is
REVERSED and judgment is hereby rendered
declaring plaintiff MERCEDITAS S. ILANO as the
duly acknowledged and recognized illegitimate
child of defendant ARTEMIO G. ILANO with all the
right appurtenant to such status.
Defendant is directed to pay the plaintiff support
in arrears at the rate of EIGHT HUNDRED (P800.00)
PESOS a month from the date of the filing of the
complaint on August 16, 1972 up to August 15,
1975; ONE THOUSAND (P1,000.00) PESOS a month
from August 16, 1975 to August 15, 1978; ONE
THOUSAND THREE HUNDRED (P1,300.00) PESOS a
month from August 16, 1978 to August 15, 1981;
and ONE THOUSAND FIVE HUNDRED (P1,500.00) a
month from August 16, 1981 up to the time she
reached the age of majority on December 30,
1984.
Defendant is further ordered to pay the plaintiff
the sum of P10,000.00 as attorney's fees plus the
costs.
SO ORDERED.19
The motion for reconsideration was denied in the resolution dated
February 26, 1992. 20
Hence, the present petition.
We shall resolve the following pertinent errors allegedly committed
by respondent court:
1) in awarding "back support" even in the absence of recognition or
of a judgment declaring petitioner father of Merceditas with finality;
2) in not ruling that an adulterous child cannot file an action for
recognition; and
3) in deciding matters of substance manifestly against established
decisions of this Court.
Petitioner argues that since the complaint against him has been
dismissed by the trial court, therefore was absolutely no obligation
on his part to give support to Merceditas. It would have been only
from the date of the judgment of the trial court that support should
have commenced, if so granted. Under the law in force when the
complaint was filed, an adulterous child cannot maintain an action
for compulsory recognition. In order that the birth certificate may
constitute a voluntary recognition, it must be signed by the father.
Equivocal act, such as signing under the caption "parent" in the
report card, is not sufficient. Merceditas has never been to the
family home of petitioner at Imus, Cavite; nor introduced to his
family; nor brought around town by him, treated as his child,
introduced to other people as his child, led people to believe that
she was part of his family.
The petition utterly lacks merit.
Under the then prevailing provisions of the Civil Code, illegitimate
children or those who are conceived and born out of wedlock were
generally classified into two groups: (1) Natural, whether actual or
by fiction, were those born outside of lawful wedlock of parents
who, at the time of conception of the child, were not disqualified by
any impediment to marry each other (Article 119, old Civil Code;
Article 269, new Civil Code) and (2) Spurious, whether incestuous,
were disqualified to marry each other on account of certain legal
impediments.21 Since petitioner had a subsisting marriage to
another at the time Merceditas was conceived,22 she is a spurious
child. In this regard, Article 287 of the Civil Code provides that
illegitimate children other than natural in accordance with Article
26923 and other than natural children by legal fiction are entitled to
support and such successional rights as are granted in the Civil Code.
The Civil Code has given these rights to them because the
transgressions of social conventions committed by the parents
should not be visited upon them. They were born with a social
handicap and the law should help them to surmount the
disadvantages facing them through the misdeeds of their
parents.24 However, before Article 287 can be availed of, there must
first be a recognition of paternity25 either voluntarily or by court
action. This arises from the legal principle that an unrecognized
spurious child like a natural child has no rights from his parents or to
their estate because his rights spring not from the filiation or blood
relationship but from his acknowledgment by the parent. In other
words, the rights of an illegitimate child arose not because he was
the true or real child of his parents but because under the law, he
had been recognized or acknowledged as such a child.26 The
relevant law on the matter is Article 283 of the Civil Code, which
provides:
Art. 283. In any of the following cases, the father is
obliged to recognize the child as his natural child:
(1) In cases of rape, abduction or seduction, when
the period of the offense coincides more or less
with that of the conception;
(2) When the child is in continuos possession of
status of a child of the alleged father by the direct
acts of the latter or of his family;
(3) When the child was conceived during the time
when the mother cohabited with the supposed
father;
(4) When the child has in his favor any evidence or
proof that the defendant is his father.
While the aforementioned provision speaks of the obligation of the
father to recognize the child as his natural child, for the purpose of
the present case, petitioner is obliged to recognize Merceditas as
his spurious child. This provision should be read in conjunction with
Article 289 of the Civil Code which provides:
Art. 289. Investigation of the paternity or
maternity of (other illegitimate) children . . . under
the circumstances specified in articles 283 and
284.
In reversing the decision of the trial court, respondent court found,
as it is likewise our finding, that private respondent's evidence to
establish her filiation with and the paternity of petitioner is too
overwhelming to be ignored or brushed aside by the highly
improbable and fatally flawed testimony of Melencio and the
inherently weak denials of petitioner:
Significantly, the Court a quo believed that
plaintiff's mother and defendant carried an
intimate relations. It nonetheless was not satisfied
that defendant is the father of the plaintiff
because it is not convinced that her mother and
defendant were in cohabitation during the period
of her conception, and took into account the
testimony of Melencio S. Reyes who frequented
the apartment where Leoncia de los Santos was
living and who positively testified that he took
care of all the bills and that he shared the same
bed with plaintiffs mother.
The court a quo completely ignored the fact that
the apartment at Guagua was rented by the
defendant, and that Melencio Reyes, who was a
mere employee and godson of the defendant with
a monthly salary of P560.00 was a mere subaltern
of the latter, and only frequented the place upon
instruction of the defendant to take care of the
needs of the plaintiff.
As pointed out by appellant, Leoncia and Artemio
stayed in an apartment at the back of the Guagua
Telephone System owned by and of which Artemio
was the General Manager (TSN, p. 46, 8/18/73)
and Melencio was the Officer-in-Charge in the
absence of Artemio whose residence and main
office was in Cavite. There, for the first time,
Leoncia met Melencio (TSN, pp. 3-4, 1/25/74). The
apartment in Guagua was rented in the name of
Melencio. As Leoncia does not speak the
Pampango dialect (TSN, p. 50, 8/18/73), Artemio
gave Leoncia the instruction to call upon Melencio
for whatever Leoncia needs (TSN, pp. 11-12,
1/25/74). Thus, it was Melencio who procured all
the supplies and services needed in the apartment
for which procurement Melencio gives to Leoncia
the corresponding receipts of payment for
liquidation of cash advances Artemio or the
Guagua Telephone System or Leoncia herself,
gives to Melencio (Exhs. A, A-1 to 14; TSN, p. 32,
8/13/73; TSN, pp. 7, 12 and 14, 1/25/74).
At the Guagua apartment, Artemio would visit
Leoncia three of four times a week and sleeps
there (TSN, p. 47, 8/13/73). Artemio was giving
Leoncia an allowance of P700.00 a month (TSN, p.
38, 7/18/73).
Leoncia got pregnant and Artemio found it difficult
to commute between Cavite and Guagua so that in
June 1962, Artemio transferred Leoncia to Calle
San Juan, Pasay City (TSN, pp. 19-20, 7/18/73)
where they were known as husband and wife (id.
p. 41). In leaving Guagua for San Juan, Pasay City,
Leoncia was fetched by Artemio in a car driven by
Artemio himself. (pp. 9-11, Appellant's Brief)
Even as Artemio and Leoncia lived and transferred
to several places heretofore mentioned, Melencio
continued to be a trusted man Friday of Artemio
who would deliver notes (Exhs. "F", "F-1" and "F-
3") and money from Artemio to Leoncia. For
reference, among the notes identified by Leoncia
as having come from defendant were the
following:
Exh. "F-1"
"Dear Ne,
Magsimula akong makausap ni Gracing ay
nagkaroon ako ng diferencia sa paa at ngayon ay
masakit pa.
Si Miling ay ngayon lamang nakarating dito kung
hindi ka aalis diyan ay si Miling na lamang ang
utusan mo sa Makati kung may kailangan ka dian.
"Mayroon akong nakitang bahay na mayayari
malapit sa municipio ng Makati. Ipakikita ko sa iyo
kung papayag ka.
Sabihin mo kay Miling kung hindi ka aalis diyan
bukas ay pupunta ako.
Walang makitang bahay sa San Juan.
Exh. "F-2"
"Ne, sa Viernes ay pupunta ako dian marami
akong ginagawa.
Exh. "F-3"
"Ne, si Miling ay bukas pupunta dito ay sa tanghali
ay pupunta ako diyan (11:30 am). Wala akong pera
ngayon kaya bukas na, sigurado yon.
Exh. "F-4"
"Dear Ne, Pacencia ka na at hindi ako
nakapaglalakad gawa ng mataas ang dugo, kaya
minsan-minsan lamang ako makapunta sa oficena.
Ibigay mo ang bayad sa bahay sa Sabado ng
umaga, pipilitin kong makarating dian sa Jueves.
The address "Ne" in the beginning of these notes .
refer to Leoncia whose nickname is "Nene" but "
which Artemio shortens to "Ne". Miling is the
nickname of Melencio. The "Gracing" mentioned
in Exh. "F-1" refers to Gracia delos Santos, a sister-
in-law of Leoncia who was with Artemio when
Leoncia was removed from the hospital during the
birth of Merceditas. (pp. 17-19, Appellant's Brief).
These tiny bits of evidence when pieced together
ineluctably gives lie to defendants' diversionary
defense that it was with Melencio S. Reyes with S
whom the mother lived with during her period of g
conception. n
.
The attempt of Melencio S. Reyes to show that he "
was the lover of Leoncia being in the apartment
and sharing the same bedroom and the same bed
hardly inspires belief.
xxx xxx xxx
Undoubtedly, the role played by Melencio S. Reyes
in the relationship between Leoncia and appellant S
(sic) was that of a man Friday although appellant g
(sic) would not trust him to the hilt and n
S unwittingly required him to submit to Leoncia an .
g accounting of his expenditures "
n (Exhs. A, A-1 to A-14) for cash advances given to
. him by Leoncia, Artemio or Guagua Telephone
" System which would not have been the case, if it
were true that there was an intimate relationship
between him and plaintiff's mother.
Evidently, following the instruction of his
employer and Godfather, Melencio foisted on the
court a quothe impression that he was the lover
and paramour of Leoncia but since there was
really no such relationship, he could not state the
S
place in San Juan or Highway 54 where he took
g
Leoncia, nor how long they stayed there belying
n
his pretense (sic) of an intimate relationship with
S .
plaintiffs mother.27
g "
n
Having discredited the testimonies of petitioner and Melencio,
respondent court then applied paragraph (2) of Article 283:
The court a quo did not likewise consider the
evidences as sufficient to establish that plaintiff
was in continuous possession of status of a child in
view of the denial by appellee of his paternity, and
there is no clear and sufficient evidence that the
support was really given to plaintiff's mother. The
belated denial of paternity after the action has
been filed against the putative father is not the
denial that would destroy the paternity of the
child which had already been recognized by
defendant by various positive acts clearly
evidencing that he is plaintiff's father. A
recognition once validly made is irrevocable. It
cannot be withdrawn. A mere change of mind
would be incompatible with the stability of the
civil status of person, the permanence of which
affects public interest. Even when the act in which
it is made should be revocable, the revocation of
such act will not revoke the recognition itself (1
Tolentino, pp. 579-580, 1983 Ed.).
To be sure, to establish "the open and continuous
possession of the status of an illegitimate child," it
is necessary to comply with certain jurisprudential
requirements. "Continuous" does not, however,
mean that the concession of status shall continue
forever but only that it shall not be of an
intermittent character while it continues (De Jesus
v. Syquia, 58 Phil. 866). The possession of such
status means that the father has treated the child
as his own, directly and not through other,
spontaneously and without concealment though
without publicity (since the relation is illegitimate)
(J.B.L. Reyes and R.C. Puno, Outline of Philippine
Civil Law, Vol. 1, 1964 ed., pp. 269-270 citing
Coquia vs. Coquia, CA 50, O.G. 3701) There must
be a showing of the permanent intention of the
supposed father to consider the child as his own,
by continuous and clear manifestation of paternal
affection and care. (Tolentino, Civil Code of the
Philippines, Vol. 1, 1983 ed., p. 602). (Mendoza vs.
Court of Appeals, G.R. No. 86302, September 24,
1991.)
It was Artemio who made arrangement for the
delivery of Merceditas (sic) at the Manila
Sanitarium and Hospital. Prior to the delivery,
Leoncia underwent prenatal examination by
Artemio (TSN, p. 33, 5/17/74). After delivery, they
went home to their residence at EDSA in a car
owned and driven by Artemio himself (id. p. 36).
Merceditas (sic) bore the surname of "Ilano" since
birth without any objection on the part of
Artemio, the fact that since Merceditas (sic) had
her discernment she had always known and called
Artemio as her "Daddy" (TSN, pp. 28-29,
10/18/74); the fact that each time Artemio was at
home, he would play with Merceditas (sic), take
her for a ride or restaurants to eat, and sometimes
sleeping with Merceditas (sic) (id. p. 34) and does
all what a father should do for his child — bringing
home goodies, candies, toys and whatever he can
bring her which a child enjoys which Artemio gives
Merceditas (sic) (TSN, pp. 38-39, 5/17/74) are
positive evidence that Merceditas (sic) is the child
of Artemio and recognized by Artemio as such.
Special attention is called to Exh. "E-7" where
Artemio was telling Leoncia the need for a "frog
test" to know the status of Leoncia.
Plaintiff pointed out that the support by Artemio
for Leoncia and Merceditas (sic) was sometimes in
the form of cash personally delivered to her by
Artemio, thru Melencio, thru Elynia (Exhs. "E-2"
and "E-3",
and "D-6"), or thru Merceditas (sic) herself (TSN, p.
40, 5/17/74) and sometimes in the form of a check
as the Manila Banking Corporation Check No.
81532 (Exh. "G") and the signature appearing
therein which was identified by Leoncia as that of
Artemio because Artemio often gives her checks
and Artemio would write the check at home and
saw Artemio sign the check (TSN, p. 49, 7/18/73).
Both Artemio and Nilda admitted that the check
and signature were those of Artemio (TSN, p. 53,
10/17/77;
TSN, p. 19, 10/9/78).
During the time that Artemio and Leoncia were
living as husband and wife, Artemio has shown
concern as the father of Merceditas (sic). When
Merceditas (sic) was in Grade 1 at the St. Joseph
Parochial School, Artemio signed the Report Card
of Merceditas (sic) (Exh. "H") for the fourth and
fifth grading period(s) (Exh. "H-1" and "H-2") as
the parent of Merceditas (sic). Those signatures of
Artemio were both identified by Leoncia and
Merceditas (sic) because Artemio signed Exh. "H-
1" and
"H-2" at their residence in the presence of
Leoncia, Merceditas (sic) and of Elynia (TSN, p. 57,
7/18/73; TSN, p. 28, 10/1/73). . . .
xxx xxx xxx
When Artemio run as a candidate in the Provincial
Board of Cavite, Artemio gave Leoncia his picture
with the following dedication: "To Nene, with best
regards, Temiong". (Exh. "I"). (pp. 19-20,
Appellant's Brief)
The mere denial by defendant of his signature is
not sufficient to offset the totality of the evidence
indubitably showing that the signature thereon
belongs to him. The entry in the Certificate of Live
Birth that Leoncia and Artemio was falsely stated
therein as married does not mean that Leoncia is
not appellee's daughter. This particular entry was
caused to be made by Artemio himself in order to
avoid embarrassment.
It is difficult to believe that plaintiffs mother, who
is a mere dressmaker, had long beforehand
diabolically conceived of a plan to make it appear
that defendant, who claims to be a total stranger
to be a total stranger, was the father of her child,
and in the process falsified the latter's signatures
and handwriting.28
Granting ex gratia argument that private respondent's evidence is
not sufficient proof of continuos possession of status of a spurious
child, respondent court applied next paragraph (4) of Article 283:
. . . plaintiffs testimonial and documentary
evidence . . . (is) too replete with details that are
coherent, logical and natural which cannot be
categorized as mere fabrications of an inventive
and malicious mind of which Leoncia de los Santos
was not shown to possess.
The natural, logical and coherent evidence of
plaintiff from the genesis of the relationship
between Leoncia and appellee, their living
together as circumstances of plaintiff's birth, the
acts of appellee in recognizing and supporting
plaintiff, find ample support from the testimonial
and documentary evidence which leaves no room
to reasonably doubt his paternity which may not
be infirmed by his belated denials.
Notably, the court a quo did not consider
plaintiff's evidence as lacking in credibility but did
not deem as convincing proof that defendant is
the father since the Certificate of Live Birth was
not signed by appellee and since the monthly
report card is not sufficient to establish
recognition, considering the denial of the
defendant of his signature appearing thereon.
While defendant's signature does not appear in
the Certificate of Live Birth, the evidence
indubitably disclose(s) that Leoncia gave birth on
December 30, 1963 to Merceditas (sic) at 4:27
p.m. at the Manila Sanitarium. Artemio arrived at
about 5:00 (TSN, p. 25, 5/17/74). At about 7:00
p.m., a nurse came (id. p. 26) who made inquiries
about the biodata of the born child. The inquiries
were directed to Artemio in the presence of Elynia
who heard the answers of Artemio which the
nurse took down in a sheet of paper (id. p. 28).
The inquiries were about the name of the father,
mother and child. After the interview the nurse
told them that the information has to be recorded
in the formal form and has to be signed by
Artemio (id. p. 30) but because there is no office,
as it was past 7:00 p.m., the nurse would just
return in the morning for Artemio's signature.
Artemio gave the instruction to the nurse to give
the biodata to Leoncia for her signature as he was
leaving very early the following morning as in fact
Artemio left at 5:00 a.m. of December 31, 1963
(id. p. 33). Artemio stayed in the hospital in the
evening of December 30, 1963 (id. p. 26). As
pointed out in Castro vs. Court of Appeals, 173
SCRA 656:
The ruling in Roces vs. Local Civil
Registrar of Manila (102 Phil.
1050 [1958] and Berciles
v. Government Service Insurance
System (128 SCRA 53 [1984] that
if the father did not sign in the
birth certificate, the placing of
his name by the mother, doctor,
register, or other person is
incompetent evidence of
paternity does not apply to this
case because it was Eustaquio
himself who went to the
municipal building and gave all
the data about his daughter's
birth. . . .
. . . the totality of the evidence, as pointed to
above, is more than sufficient to establish beyond
reasonable doubt that appellee is the father of the
plaintiff Merceditas (sic) Ilano.
As elucidated in Mendoza vs. Court of
Appeals, Supra:
xxx xxx xxx
. . . although Teopista has failed to show that she
was in open and continuous possession of the
status of an illegitimate child of Casimiro, we find
that she has nevertheless established that status
by another method.
What both the trial court and the respondent did
not take into account is that an illegitimate child is
allowed to establish his claimed affiliation by "any
other means allowed by the Rules of Court and
special laws," according to the Civil Code, . . . Such
evidence may consist of his baptismal certificate, a
judicial admission, a family Bible in which his name
has been entered, common reputation respecting
his pedigree, admission by silence, the testimonies
of witnesses, and other kinds of proof admissible
under Rule 130 of the Rules of Court.29
The last paragraph of Article 283 contains a blanket provision that
practically covers all the other cases in the preceding paragraphs.
"Any other evidence or proof" that the defendant is the father is
broad enough to render unnecessary the other paragraphs of this
article. When the evidence submitted in the action for compulsory
recognition is not sufficient to meet requirements of the first three
paragraphs, it may still be enough under the last paragraph. 30 This
paragraph permits hearsay and reputation evidence, as provided in
the Rules of Court, with respect to illegitimate filiation. 31
As a necessary consequence of the finding that private respondent
is the spurious child of petitioner, she is entitled to support. In
awarding support to her, respondent court took into account the
following:
The obligation to give support shall be
demandable from the time the person who has a
right to recover the same needs it for
maintenance, but it shall not be paid except from
the date of judicial or extrajudicial demand.
(Article 203, Family Code of the Philippines.)
The complaint in this case was filed on August 14,
1972. Plaintiff, having been born on December 30,
1963, was about nine (9) years old at the time and
was already of school age spending about P400.00
to P500.00 a month for her school expenses alone,
while defendant was earning about P10,000.00 a
month. She attained the age of majority on
December 30, 1984 (Article 234, Supra). She is
therefore entitled to support in arrears for a
 period of twelve (12) years, four (4) months and
fourteen (14) days, which is hereby fixed at
P800.00 a month for the first three (3) years; and
considering the declining value of the peso as well
as her needs as she grows older, at a graduated
increase of P1,000.00 a month for the next three
(3) years; P1,300.00 a month for the succeeding
three (3) years; and P1,500.00 a month for the last
three (3) years, four (4) months and fourteen (14)
days until she attained the age of majority.

This being an action for legal support, the award of

attorney's fees is appropriate under Article 2208
(6) of the Civil Code. Moreover, the court deems it
just and equitable under the given facts and
circumstances that attorney's fees and expenses
of litigation should be recovered.32

We concur with the foregoing disposition, in the absence of proof

that it was arrived at arbitrarily.

The other allegation of petitioner that the appeal was prosecuted

almost ten years after the decision of the trial court was rendered
does not deserve any consideration because it appears that it is
being raised for the first time in this petition.33

WHEREFORE, the petition is hereby DENIED. The decision of

the Court of Appeals dated December 17, 1991 and its resolution
dated February 26, 1992 are AFFIRMED.

SO ORDERED.
FIRST DIVISION
G.R. No. 148220 June 15, 2005
ROSENDO HERRERA, petitioner,
vs.
ROSENDO ALBA, minor, represented by his mother ARMI A. ALBA,
and HON. NIMFA CUESTA-VILCHES, Presiding Judge, Branch 48,
Regional Trial Court, Manila, respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for review1 to set aside the Decision2 dated 29
November 2000 of the Court of Appeals ("appellate court") in CA-
G.R. SP No. 59766. The appellate court affirmed two Orders3 issued
by Branch 48 of the Regional Trial Court of Manila ("trial court") in
SP No. 98-88759. The Order dated 3 February 2000 directed
Rosendo Herrera ("petitioner") to submit to deoxyribonucleic acid
("DNA") paternity testing, while the Order dated 8 June 2000 denied
petitioner’s motion for reconsideration.
The Facts
On 14 May 1998, then thirteen-year-old Rosendo Alba
("respondent"), represented by his mother Armi Alba, filed before
the trial court a petition for compulsory recognition, support and
damages against petitioner. On 7 August 1998, petitioner filed his
answer with counterclaim where he denied that he is the biological
father of respondent. Petitioner also denied physical contact with
respondent’s mother.
Respondent filed a motion to direct the taking of DNA paternity
testing to abbreviate the proceedings. To support the motion,
respondent presented the testimony of Saturnina C. Halos, Ph.D.
When she testified, Dr. Halos was an Associate Professor at De La
Salle University where she taught Cell Biology. She was also head of
the University of the Philippines Natural Sciences Research Institute
("UP-NSRI"), a DNA analysis laboratory. She was a former professor
at the University of the Philippines in Diliman, Quezon City, where
she developed the Molecular Biology Program and taught Molecular
Biology. In her testimony, Dr. Halos described the process for DNA
paternity testing and asserted that the test had an accuracy rate of
99.9999% in establishing paternity.4
Petitioner opposed DNA paternity testing and contended that it has
not gained acceptability. Petitioner further argued that DNA
paternity testing violates his right against self-incrimination.
The Ruling of the Trial Court
In an Order dated 3 February 2000, the trial court granted
respondent’s motion to conduct DNA paternity testing on
petitioner, respondent and Armi Alba. Thus:
In view of the foregoing, the motion of the petitioner
is GRANTED and the relevant individuals, namely: the petitioner, the
minor child, and respondent are directed to undergo DNA paternity
testing in a laboratory of their common choice within a period of
thirty (30) days from receipt of the Order, and to submit the results
thereof within a period of ninety (90) days from completion. The
parties are further reminded of the hearing set on 24 February 2000
for the reception of other evidence in support of the petition.
IT IS SO ORDERED.5 (Emphasis in the original)
Petitioner filed a motion for reconsideration of the 3 February 2000
Order. He asserted that "under the present circumstances, the DNA
test [he] is compelled to take would be inconclusive, irrelevant and
the coercive process to obtain the requisite specimen…,
unconstitutional."
In an Order dated 8 June 2000, the trial court denied petitioner’s
motion for reconsideration.6
On 18 July 2000, petitioner filed before the appellate court a
petition for certiorari under Rule 65 of the 1997 Rules of Civil
Procedure. He asserted that the trial court rendered the Orders
dated 3 February 2000 and 8 June 2000 "in excess of, or without
jurisdiction and/or with grave abuse of discretion amounting to lack
or excess of jurisdiction." Petitioner further contended that there is
"no appeal nor any [other] plain, adequate and speedy remedy in
the ordinary course of law." Petitioner maintained his previous
objections to the taking of DNA paternity testing. He submitted the
following grounds to support his objection:
1. Public respondent misread and misapplied the ruling in
Lim vs. Court of Appeals (270 SCRA 2).
2. Public respondent ruled to accept DNA test without
considering the limitations on, and conditions precedent
for the admissibility of DNA testing and ignoring the serious
constraints affecting the reliability of the test as admitted
by private respondent’s "expert" witness.
3. Subject Orders lack legal and factual support, with public
respondent relying on scientific findings and conclusions
unfit for judicial notice and unsupported by experts in the
field and scientific treatises.
4. Under the present circumstances the DNA testing
petitioner [is] compelled to take will be inconclusive,
irrelevant and the coercive process to obtain the requisite
specimen from the petitioner, unconstitutional.7
The Ruling of the Court of Appeals
On 29 November 2000, the appellate court issued a decision
denying the petition and affirming the questioned Orders of the trial
court. The appellate court stated that petitioner merely desires to
correct the trial court’s evaluation of evidence. Thus, appeal is an
available remedy for an error of judgment that the court may
commit in the exercise of its jurisdiction. The appellate court also
stated that the proposed DNA paternity testing does not violate his
right against self-incrimination because the right applies only to
testimonial compulsion. Finally, the appellate court pointed out that
petitioner can still refute a possible adverse result of the DNA
paternity testing. The dispositive portion of the appellate court’s
decision reads:
WHEREFORE, foregoing premises considered, the Petition is
hereby DENIED DUE COURSE, and ordered dismissed, and the
challenged orders of the Trial Court AFFIRMED, with costs to
Petitioner.
SO ORDERED.8
Petitioner moved for reconsideration, which the appellate court
denied in its Resolution dated 23 May 2001.9
Issues
Petitioner raises the issue of whether a DNA test is a valid probative
tool in this jurisdiction to determine filiation. Petitioner asks for the
conditions under which DNA technology may be integrated into our
judicial system and the prerequisites for the admissibility of DNA
test results in a paternity suit.10
Petitioner further submits that the appellate court gravely abused
its discretion when it authorized the trial court "to embark in [sic] a
new procedure xxx to determine filiation despite the absence of
legislation to ensure its reliability and integrity, want of official
recognition as made clear in Lim vs. Court of Appeals and the
presence of technical and legal constraints in respect of [sic] its
implementation."11 Petitioner maintains that the proposed DNA
paternity testing violates his right against self-incrimination.12
The Ruling of the Court
The petition has no merit.
Before discussing the issues on DNA paternity testing, we deem it
appropriate to give an overview of a paternity suit and apply it to
the facts of this case. We shall consider the requirements of the
Family Code and of the Rules of Evidence to establish paternity and
filiation.
An Overview of the Paternity and Filiation Suit
Filiation proceedings are usually filed not just to adjudicate
paternity but also to secure a legal right associated with paternity,
such as citizenship,13 support (as in the present case), or inheritance.
The burden of proving paternity is on the person who alleges that
the putative father is the biological father of the child. There are
four significant procedural aspects of a traditional paternity action
which parties have to face: a prima facie case, affirmative defenses,
presumption of legitimacy, and physical resemblance between the Laws, Rules, and Jurisprudence Establishing Filiation
putative father and child.14
The relevant provisions of the Family Code provide as follows:
A prima facie case exists if a woman declares that she had sexual
relations with the putative father. In our jurisdiction, corroborative ART. 175. Illegitimate children may establish their illegitimate
proof is required to carry the burden forward and shift it to the filiation in the same way and on the same evidence as legitimate
putative father.15 children.
There are two affirmative defenses available to the putative father. xxx
The putative father may show incapability of sexual relations with
the mother, because of either physical absence or impotency. 16 The ART. 172. The filiation of legitimate children is established by any of
putative father may also show that the mother had sexual relations the following:
with other men at the time of conception.
(1) The record of birth appearing in the civil register or a
A child born to a husband and wife during a valid marriage is final judgment; or
presumed legitimate.17 The child’s legitimacy may be impugned only
under the strict standards provided by law.18
(2) An admission of legitimate filiation in a public document
or a private handwritten instrument and signed by the
Finally, physical resemblance between the putative father and child parent concerned.
may be offered as part of evidence of paternity. Resemblance is a
trial technique unique to a paternity proceeding. However, although
In the absence of the foregoing evidence, the legitimate filiation
likeness is a function of heredity, there is no mathematical formula
shall be proved by:
that could quantify how much a child must or must not look like his
biological father.19 This kind of evidence appeals to the emotions of
(1) The open and continuous possession of the status of a
the trier of fact.
legitimate child; or
In the present case, the trial court encountered three of the four
(2) Any other means allowed by the Rules of Court and
aspects. Armi Alba, respondent’s mother, put forward a prima
special laws.
facie case when she asserted that petitioner is respondent’s
biological father. Aware that her assertion is not enough to convince
the trial court, she offered corroborative proof in the form of letters The Rules on Evidence include provisions on pedigree. The relevant
and pictures. Petitioner, on the other hand, denied Armi Alba’s sections of Rule 130 provide:
assertion. He denied ever having sexual relations with Armi Alba and
stated that respondent is Armi Alba’s child with another man. Armi SEC. 39. Act or declaration about pedigree.—The act or declaration
Alba countered petitioner’s denial by submitting pictures of of a person deceased, or unable to testify, in respect to the pedigree
of another person related to him by birth or marriage, may be
respondent and petitioner side by side, to show how much they
received in evidence where it occurred before the controversy, and
resemble each other.
the relationship between the two persons is shown by evidence
other than such act or declaration. The word "pedigree" includes
Paternity and filiation disputes can easily become credibility
relationship, family genealogy, birth, marriage, death, the dates
contests. We now look to the law, rules, and governing
when and the places where these facts occurred, and the names of
jurisprudence to help us determine what evidence of incriminating
the relatives. It embraces also facts of family history intimately
acts on paternity and filiation are allowed in this jurisdiction.
connected with pedigree.
SEC. 40. Family reputation or tradition regarding pedigree.—The
reputation or tradition existing in a family previous to the
controversy, in respect to the pedigree of any one of its members,
may be received in evidence if the witness testifying thereon be also
a member of the family, either by consanguinity or affinity. Entries
in family bibles or other family books or charts, engraving on rings,
family portraits and the like, may be received as evidence of
pedigree.
This Court’s rulings further specify what incriminating acts are
acceptable as evidence to establish filiation. In Pe Lim v. CA,20 a case
petitioner often cites, we stated that the issue of paternity still has
to be resolved by such conventional evidence as the
relevant incriminating verbal and written acts by the putative
father. Under Article 278 of the New Civil Code, voluntary
recognition by a parent shall be made in the record of birth, a will, a
statement before a court of record, or in any authentic writing. To
be effective, the claim of filiation must be made by the putative
father himself and the writing must be the writing of the putative
father.21 A notarial agreement to support a child whose filiation is
admitted by the putative father was considered acceptable
evidence.22 Letters to the mother vowing to be a good father to the
child and pictures of the putative father cuddling the child on
various occasions, together with the certificate of live birth, proved
filiation.23 However, a student permanent record, a written consent
to a father’s operation, or a marriage contract where the putative
father gave consent, cannot be taken as authentic
writing.24 Standing alone, neither a certificate of baptism25 nor
family pictures26 are sufficient to establish filiation.
So far, the laws, rules, and jurisprudence seemingly limit evidence of
paternity and filiation to incriminating acts alone. However,
advances in science show that sources of evidence of paternity and
filiation need not be limited to incriminating acts. There is now
almost universal scientific agreement that blood grouping tests are
conclusive on non-paternity, although inconclusive on paternity.27
In Co Tao v. Court of Appeals,28 the result of the blood grouping test
showed that the putative father was a "possible father" of the child.
Paternity was imputed to the putative father after the possibility of
paternity was proven on presentation during trial of facts and
circumstances other than the results of the blood grouping test.
In Jao v. Court of Appeals,29 the child, the mother, and the putative
father agreed to submit themselves to a blood grouping test. The
National Bureau of Investigation ("NBI") conducted the test, which
indicated that the child could not have been the possible offspring
of the mother and the putative father. We held that the result of the
blood grouping test was conclusive on the non-paternity of the
putative father.
The present case asks us to go one step further. We are now asked
whether DNA analysis may be admitted as evidence to prove
paternity.
DNA Analysis as Evidence
DNA is the fundamental building block of a person’s entire genetic
make-up. DNA is found in all human cells and is the same in every
cell of the same person. Genetic identity is unique. Hence, a
person’s DNA profile can determine his identity.30
DNA analysis is a procedure in which DNA extracted from a
biological sample obtained from an individual is examined. The DNA
is processed to generate a pattern, or a DNA profile, for the
individual from whom the sample is taken. This DNA profile is
unique for each person, except for identical twins.31 We quote
relevant portions of the trial court’s 3 February 2000 Order with
approval:
Everyone is born with a distinct genetic blueprint called DNA
(deoxyribonucleic acid). It is exclusive to an individual (except in the
rare occurrence of identical twins that share a single, fertilized egg),
and DNA is unchanging throughout life. Being a component of every
cell in the human body, the DNA of an individual’s blood is the very
DNA in his or her skin cells, hair follicles, muscles, semen, samples
from buccal swabs, saliva, or other body parts.
The chemical structure of DNA has four bases. They are known
as A (adenine), G (guanine), C (cystosine) and T(thymine). The order
in which the four bases appear in an individual’s DNA determines his
or her physical makeup. And since DNA is a double-stranded
molecule, it is composed of two specific paired bases, A-T or T-
A and G-C or C-G. These are called "genes."
Every gene has a certain number of the above base pairs distributed
in a particular sequence. This gives a person his or her genetic code.
Somewhere in the DNA framework, nonetheless, are sections that
differ. They are known as "polymorphic loci," which are the areas
analyzed in DNA typing (profiling, tests, fingerprinting, or
analysis/DNA fingerprinting/genetic tests or fingerprinting). In other
words, DNA typing simply means determining the "polymorphic
loci."
How is DNA typing performed? From a DNA sample obtained or
extracted, a molecular biologist may proceed to analyze it in several
ways. There are five (5) techniques to conduct DNA typing. They are:
the RFLP (restriction fragment length polymorphism); "reverse dot
blot" or HLA DQ a/Pm loci which was used in 287 cases that were
admitted as evidence by 37 courts in the U.S. as of November 1994;
mtDNA process; VNTR (variable number tandem repeats); and the
most recent which is known as the PCR-([polymerase] chain
reaction) based STR (short tandem repeats) method which, as of
1996, was availed of by most forensic laboratories in the world. PCR
is the process of replicating or copying DNA in an evidence sample a
million times through repeated cycling of a reaction involving the so-
called DNA polymerize enzyme. STR, on the other hand, takes
measurements in 13 separate places and can match two (2) samples
with a reported theoretical error rate of less than one (1) in a
trillion.
Just like in fingerprint analysis, in DNA typing, "matches" are
determined. To illustrate, when DNA or fingerprint tests are done to
identify a suspect in a criminal case, the evidence collected from the
crime scene is compared with the "known" print. If a substantial
amount of the identifying features are the same, the DNA or
fingerprint is deemed to be a match. But then, even if only one
feature of the DNA or fingerprint is different, it is deemed not to
have come from the suspect.
As earlier stated, certain regions of human DNA show variations
between people. In each of these regions, a person possesses two
genetic types called "allele", one inherited from each parent. In [a]
paternity test, the forensic scientist looks at a number of these
variable regions in an individual to produce a DNA profile.
Comparing next the DNA profiles of the mother and child, it is
possible to determine which half of the child’s DNA was inherited
from the mother. The other half must have been inherited from the
biological father. The alleged father’s profile is then examined to
ascertain whether he has the DNA types in his profile, which match
the paternal types in the child. If the man’s DNA types do not match
that of the child, the man is excluded as the father. If the DNA types
match, then he is not excluded as the father.32 (Emphasis in the
original)
Although the term "DNA testing" was mentioned in the 1995 case
of People v. Teehankee, Jr.,33 it was only in the 2001 case of Tijing v.
Court of Appeals34 that more than a passing mention was given to
DNA analysis. In Tijing,we issued a writ of habeas corpus against
respondent who abducted petitioners’ youngest son. Testimonial
and documentary evidence and physical resemblance were used to
establish parentage. However, we observed that:
Parentage will still be resolved using conventional methods unless
we adopt the modern and scientific ways available. Fortunately, we
have now the facility and expertise in using DNA test for
identification and parentage testing. The University of the
Philippines Natural Science Research Institute (UP-NSRI) DNA
Analysis Laboratory has now the capability to conduct DNA typing
using short tandem repeat (STR) analysis. xxx For it was said, that
courts should apply the results of science when completely obtained
in aid of situations presented, since to reject said result is to deny
progress. Though it is not necessary in this case to resort to DNA
testing, in [the] future it would be useful to all concerned in the
prompt resolution of parentage and identity issues.
Admissibility of DNA Analysis as Evidence
The 2002 case of People v. Vallejo35 discussed DNA analysis as
evidence. This may be considered a 180 degree turn from the
Court’s wary attitude towards DNA testing in the
1997 Pe Lim case,36 where we stated that "DNA, being a relatively
new science, xxx has not yet been accorded official recognition by
our courts." In Vallejo, the DNA profile from the vaginal swabs taken
from the rape victim matched the accused’s DNA profile. We
affirmed the accused’s conviction of rape with homicide and
sentenced him to death. We declared:
In assessing the probative value of DNA evidence, therefore, courts
should consider, among other things, the following data: how the
samples were collected, how they were handled, the possibility of
contamination of the samples, the procedure followed in analyzing
the samples, whether the proper standards and procedures were
followed in conducting the tests, and the qualification of the analyst
who conducted the tests.37
Vallejo discussed the probative value, not admissibility, of DNA
evidence. By 2002, there was no longer any question on the validity
of the use of DNA analysis as evidence. The Court moved from the
issue of according "official recognition" to DNA analysis as evidence
to the issue of observance of procedures in conducting DNA
analysis.
In 2004, there were two other cases that had a significant impact on
jurisprudence on DNA testing: People v. Yatar38 and In re: The Writ
of Habeas Corpus for Reynaldo de Villa.39 In Yatar, a match existed
between the DNA profile of the semen found in the victim and the
DNA profile of the blood sample given by appellant in open court.
The Court, following Vallejo’s footsteps, affirmed the conviction of
appellant because the physical evidence, corroborated by
circumstantial evidence, showed appellant guilty of rape with
homicide. In De Villa, the convict-petitioner presented DNA test
results to prove that he is not the father of the child conceived at
the time of commission of the rape. The Court ruled that a
difference between the DNA profile of the convict-petitioner and
the DNA profile of the victim’s child does not preclude the convict-
petitioner’s commission of rape.
In the present case, the various pleadings filed by petitioner and
respondent refer to two United States cases to support their
respective positions on the admissibility of DNA analysis as
evidence: Frye v. U.S.40 and Daubert v. Merrell Dow
41
Pharmaceuticals. In Frye v. U.S., the trial court convicted Frye of
murder. Frye appealed his conviction to the Supreme Court of the
District of Columbia. During trial, Frye’s counsel offered an expert
witness to testify on the result of a systolic blood pressure
deception test42 made on defendant. The state Supreme Court
affirmed Frye’s conviction and ruled that "the systolic blood
pressure deception test has not yet gained such standing and
scientific recognition among physiological and psychological
authorities as would justify the courts in admitting expert testimony
deduced from the discovery, development, and experiments thus
far made." The Fryestandard of general acceptance states as
follows:
Just when a scientific principle or discovery crosses the line between
the experimental and demonstrable stages is difficult to define.
Somewhere in this twilight zone the evidential force of the principle
must be recognized, and while courts will go a long way in admitting
expert testimony deduced from a well recognized scientific principle
or discovery, the thing from which the deduction is made must be
sufficiently established to have gained general acceptance in the
particular field in which it belongs.
In 1989, State v. Schwartz43 modified the Frye standard. Schwartz
was charged with stabbing and murder. Bloodstained articles and
blood samples of the accused and the victim were submitted for
DNA testing to a government facility and a private facility. The
prosecution introduced the private testing facility’s results over
Schwartz’s objection. One of the issues brought before the state
Supreme Court included the admissibility of DNA test results in a
criminal proceeding. The state Supreme Court concluded that:
While we agree with the trial court that forensic DNA typing has
gained general acceptance in the scientific community, we hold that
admissibility of specific test results in a particular case hinges on the
laboratory’s compliance with appropriate standards and controls,
and the availability of their testing data and results.44
In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc.45 further
modified the Frye-Schwartz standard. Daubertwas a product
liability case where both the trial and appellate courts denied the
admissibility of an expert’s testimony because it failed to meet
the Frye standard of "general acceptance." The United States
Supreme Court ruled that in federal trials, the Federal Rules of
Evidence have superseded the Frye standard. Rule 401 defines
relevant evidence, while Rule 402 provides the foundation for
admissibility of evidence. Thus:
Rule 401. "Relevant evidence" is defined as that which has any
"tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence.
Rule 402. All relevant evidence is admissible, except as otherwise
provided by the Constitution of the United States, by Act of
Congress, by these rules, or by other rules prescribed by the
Supreme Court pursuant to statutory authority. Evidence which is
not relevant is not admissible.
Rule 702 of the Federal Rules of Evidence governing expert
testimony provides:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of
an opinion or otherwise.
Daubert cautions that departure from the Frye standard of general
acceptance does not mean that the Federal Rules do not place limits
on the admissibility of scientific evidence. Rather, the judge must
ensure that the testimony’s reasoning or method is scientifically
valid and is relevant to the issue. Admissibility would depend on
factors such as (1) whether the theory or technique can be or has
been tested; (2) whether the theory or technique has been
subjected to peer review and publication; (3) the known or potential
rate of error; (4) the existence and maintenance of standards
controlling the technique’s operation; and (5) whether the theory or
technique is generally accepted in the scientific community.
Another product liability case, Kumho Tires Co. v.
Carmichael,46 further modified the Daubert standard. This led to the
amendment of Rule 702 in 2000 and which now reads as follows:
If scientific, technical or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of
an opinion or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable principles
and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.
We now determine the applicability in this jurisdiction of these
American cases. Obviously, neither the Frye-Schwartz standard nor
the Daubert-Kumho standard is controlling in the Philippines.47 At
best, American jurisprudence merely has a persuasive effect on our
decisions. Here, evidence is admissible when it is relevant to the fact
in issue and is not otherwise excluded by statute or the Rules of
Court.48 Evidence is relevant when it has such a relation to the fact
in issue as to induce belief in its existence or non-
existence.49 Section 49 of Rule 130, which governs the admissibility
of expert testimony, provides as follows:
The opinion of a witness on a matter requiring special knowledge,
skill, experience or training which he is shown to possess may be
received in evidence.
This Rule does not pose any legal obstacle to the admissibility of
DNA analysis as evidence. Indeed, even evidence on collateral
matters is allowed "when it tends in any reasonable degree to
establish the probability or improbability of the fact in issue."50
Indeed, it would have been convenient to merely refer petitioner to
our decisions in Tijing, Vallejo and Yatar to illustrate that DNA
analysis is admissible as evidence. In our jurisdiction, the restrictive
tests for admissibility established by Frye-Schwartz and Daubert-
Kumho go into the weight of the evidence.
Probative Value of DNA Analysis as Evidence
Despite our relatively liberal rules on admissibility, trial courts
should be cautious in giving credence to DNA analysis as evidence.
We reiterate our statement in Vallejo:
In assessing the probative value of DNA evidence, therefore, courts
should consider, among other things, the following data: how the
samples were collected, how they were handled, the possibility of
contamination of the samples, the procedure followed in analyzing
the samples, whether the proper standards and procedures were
followed in conducting the tests, and the qualification of the analyst
who conducted the tests.51]
We also repeat the trial court’s explanation of DNA analysis used in
paternity cases:
In [a] paternity test, the forensic scientist looks at a number of these
variable regions in an individual to produce a DNA profile.
Comparing next the DNA profiles of the mother and child, it is
possible to determine which half of the child’s DNA was inherited
from the mother. The other half must have been inherited from the
biological father. The alleged father’s profile is then examined to
ascertain whether he has the DNA types in his profile, which match
the paternal types in the child. If the man’s DNA types do not match
that of the child, the man is excluded as the father. If the DNA types
match, then he is not excluded as the father.52
It is not enough to state that the child’s DNA profile matches that of
the putative father. A complete match between the DNA profile of
the child and the DNA profile of the putative father does not
necessarily establish paternity. For this reason, following the highest
standard adopted in an American jurisdiction,53 trial courts should
require at least 99.9% as a minimum value of the Probability of
Paternity ("W") prior to a paternity inclusion. W is a numerical
estimate for the likelihood of paternity of a putative father
compared to the probability of a random match of two unrelated
individuals. An appropriate reference population database, such as
the Philippine population database, is required to compute for W.
Due to the probabilistic nature of paternity inclusions, W will never
equal to 100%. However, the accuracy of W estimates is higher
when the putative father, mother and child are subjected to DNA
analysis compared to those conducted between the putative father
and child alone.54
DNA analysis that excludes the putative father from paternity
should be conclusive proof of non-paternity. If the value of W is less
than 99.9%, the results of the DNA analysis should be considered as
corroborative evidence. If the value of W is 99.9% or higher, then
there is refutable presumption of paternity.55 This refutable
presumption of paternity should be subjected to
the Vallejo standards.
Right Against Self-Incrimination
Section 17, Article 3 of the 1987 Constitution provides that "no
person shall be compelled to be a witness against himself."
Petitioner asserts that obtaining samples from him for DNA testing
violates his right against self-incrimination. Petitioner ignores our
earlier pronouncements that the privilege is applicable only to
testimonial evidence. Again, we quote relevant portions of the trial
court’s 3 February 2000 Order with approval:
Obtaining DNA samples from an accused in a criminal case or from
the respondent in a paternity case, contrary to the belief of
respondent in this action, will not violate the right against self-
incrimination. This privilege applies only to evidence that
is "communicative" in essence taken under duress (People vs. Olvis,
154 SCRA 513, 1987). The Supreme Court has ruled that the right
against self-incrimination is just a prohibition on the use of physical
or moral compulsion to extort communication (testimonial
evidence) from a defendant, not an exclusion of evidence taken
from his body when it may be material. As such, a defendant can be
required to submit to a test to extract virus from his body (as cited
in People vs. Olvis, Supra); the substance emitting from the body of
the accused was received as evidence for acts of lasciviousness (US
vs. Tan Teng, 23 Phil. 145); morphine forced out of the mouth was
received as proof (US vs. Ong Siu Hong, 36 Phil. 735); an order by
the judge for the witness to put on pair of pants for size was allowed
(People vs. Otadora, 86 Phil. 244); and the court can compel a
woman accused of adultery to submit for pregnancy test (Villaflor
vs. Summers, 41 Phil. 62), since the gist of the privilege is the
restriction on "testimonial compulsion."56

The policy of the Family Code to liberalize the rule on the

investigation of the paternity and filiation of children, especially of
illegitimate children, is without prejudice to the right of the putative
parent to claim his or her own defenses.57 Where the evidence to
aid this investigation is obtainable through the facilities of modern
science and technology, such evidence should be considered subject
to the limits established by the law, rules, and jurisprudence.

WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of

the Court of Appeals dated 29 November 2000 in CA-G.R. SP No.
59766. We also AFFIRM the Orders dated 3 February 2000 and 8
June 2000 issued by Branch 48 of the Regional Trial Court of Manila
in Civil Case No. SP-98-88759.

SO ORDERED.
SECOND DIVISION
G.R. No. 123115 August 25, 1998
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NIXON MALAPO, accused-appellant.
MENDOZA, J.:
This is an appeal from the decision rendered on June 23, 1995 by
the Regional Trial Court of Iriga City, Branch 36, convicting accused-
appellant Nixon Malapo of rape and sentencing him to suffer the
penalty of reclusion perpetuaand to pay the victim Amalia Trinidad
the sum of P50,000.00 in moral damages.
The information1 against accused-appellant alleged:
The undersigned Assistant City Prosecutor of Iriga
City, upon sworn complaint originally filed by the
offended party hereto attached, hereby accuses
one NIXON MALAPO of Salvacion, Iriga City of the
crime of RAPE, committed as follows:
That sometime on the month of
September, 1991 at Salvacion,
Iriga City, Philippines, and within
the jurisdiction of this Honorable
Court, the said accused, entered
the house of one Nenita I. No,
aunt of Complainant AMALIA
TRINIDAD who was then and
there alone, and by means of
force and intimidation, did, then
and there willfully, unlawfully
and feloniously succeeded in
having carnal knowledge of said
Amalia Trinidad against her will
and consent and as a result she
has become pregnant and
delivered a baby at the Iriga City
Puericulture Center.
CONTRARY TO LAW.
Three witnesses testified against him: complainant Amalia Trinidad;
Amalia's guardian, Nenita No; and a guidance counselor and first
cousin of Nenita No, Bernardita Marquinez.
Nenita No identified accused-appellant as her long-time neighbor.
She testified that Amalia Trinidad had been under her care and
custody since 1978 when Amalia was just seven years old. She said
Amalia was able to finish the sixth grade of her primary
education. 2 It appears that Amalia is a retardate who was a former
ward of the Elsie Gaches Village institution. Mrs. Nenita No and her
husband were given custody of Amalia on November 19, 1978 on
the basis of the following psychological evaluation:
Amalia is seemingly an example of a
pseudoretardate. She might have been deprived
of intellectual stimulations which explains her lag
in cognitive development. She is still categorized
within the normal classification of children. She
must continue attending the center's special
school to catch-up for whatever educational
deficiency she may have.3
Mrs. No told the court that, sometime during the first week of
September 1991, Amalia was left alone in their house at Salvacion,
Iriga City, as she and her husband taught in school, while their four
natural children attended classes. 4
At around 10:30 in the morning of that day, when Mrs. No came
home from her class, she found accused-appellant Malapo in the
yard of her house. Accused-appellant was in haste. She stopped him
and asked why he was in a hurry, to which accused-appellant replied
he had gathered firewood. This puzzled Mrs. No as they had no
firewood at the back of their house. Mrs. No said she found Amalia
inside their house crying. Mrs. No tried to find out why Amalia was
crying, but she would not say anything, On May 18, 1992, Amalia
finally told Mrs. No's cousin, Bernardita Marquinez, that she had
been raped by accused-appellant.5
Taking the witness stand, Amalia Trinidad recounted how at around
9:30 in the morning in September 1991, while she was alone at
home, accused-appellant Nixon Malapo entered their house. Amalia
was then cooking. Upon seeing accused-appellant, she tried to run
away, but Malapo caught her hand and brought her to the dining
room. The accused-appellant then caused her to fall on the floor,
covered her mouth, and forcibly removed her short pants and
undergarment. Next, he removed his pants, lay on top of her, and
forced his sexual organ into her private part, causing lacerations and
bleeding in her vagina. Amalia said she tried to punch the accused-
appellant and to remove his hand from her mouth, but he was too
strong for her. After he had succeeded in having sexual intercourse
with her, accused-appellant left after warning her that he would kill
her if she reported the incident to Mrs. No or to anyone else. 6
For this reason, Amalia said, when Mrs. No asked why she was
crying, she did not tell her what had happened to her. She
confirmed that it was only when she was about to give birth to her
baby on May 18, 1992 that she told Bernardita Marquinez that she
had been raped by accused-appellant. Amalia pointed to accused-
appellant in court as the person who had raped her. She testified
that, prior to the date of the alleged crime, she did not harbor any ill
will or grudge against him, 7 but, as a result of her abuse, she said
she suffered from wounded feelings which made her cry very often.8
The last witness for the prosecution was Bernardita Marquinez, a
resident of Iriga City and guidance counselor of the University of
Saint Anthony. She was presented to corroborate the testimonies of
Mrs. No and the victim regarding the events on May 18, 1992 and
afterward. 9
Accused-appellant Nixon Malapo testified on his behalf, basically
claiming alibi as his defense. He presented as witnesses Felipe
Edroso and Santos Ramos to corroborate his claim that he and
Ramos worked together as duck watchers hired by Edroso in San
Jose, Buhi, Camarines Sur, about fifteen kilometers away from
Salvacion, Iriga City, from July 1991 until January
1992. 10
Accused-appellant alleged that Amalia three times failed to identify
him: When Amalia was brought before the barangay captain's office
to confront accused-appellant, Amalia failed to identify him despite
Mrs. No's effort to make her point to him. Amalia again failed to
identify him as her alleged assailant when they were taken to the
police headquarters and, still later, before Prosecutor Jose Tagum of
the Iriga City Prosecutor's office. 11
Accused-appellant submitted as documentary evidence a medical
certificate 12 showing that the alleged victim gave birth to a full-term
male baby on May 18, 1992. He argues that if Amalia had been
raped in September of 1991, she could not have been delivered of
her baby on May 18, 1992.
On June 23, 1995, the trial court rendered its decision finding
accused-appellant guilty. The dispositive portion of its decision
reads:
WHEREFORE, premises considered, the Court finds
the accused, NIXON MALAPO, guilty beyond
reasonable doubt of the crime of rape defined and
penalized under Article 335 of the Revised Penal
Code before its amendment by Rep. Act No. 7659,
as charged in the information, and hereby
sentences the said accused to suffer the penalty
of reclusion perpetua; that said accused is further
ordered to indemnify the private offended party,
AMALIA TRINIDAD of the sum of P50,000.00 as
moral damages, and to pay the costs.
SO ORDERED.
Hence, this appeal. Accused-appellant's sole contention is this:
As, according to Exhibit 1-A, the baby was a full
term baby, it is unlikely, nay unbelievable, that
same baby was the fruit of the alleged rape
perpetrated sometime in September 1991,
because from September 15, 1991 (assuming that
the rape took place on September 15, 1991, there
being no evidence as to when in September 1991
the rape took place) to May 18, 1992 when the
baby was born, is a period of only eight (8) months
and three (3) days, contrary to the Certificate (Exh.
1 and 1-A) that the baby was full term when
delivered.
Consequently, that the appellant had raped the
complaining witness in September 1991 and, as a
result, she became pregnant and gave birth to her
baby on May 18, 1992 is simply improbable;
hence, obviously a lie.
It could therefore be that the baby of the
complaining witness was fathered by another
man; hence, there is serious doubt that the
appellant had raped same complaining witness in
September 1991 causing her to become pregnant
and to deliver a baby on May 18, 1992.
It cannot be argued that the victim must have
been already pregnant when she was allegedly
raped because there is no evidence to this effect.
The information and the prosecution evidence are
to the effect that the baby was the fruit of the
alleged rape. 13
The contention has no merit.
A textbook on pediatrics states that "Infants delivered before the
thirty-seventh week of gestation with a birth weight of less than
2,500 grams (American) or 2,275 grams (Filipino) are considered
premature." 14 An infant can therefore be considered a full-term
baby if it weighs more than 2,275 grams even if it is born before the
thirty-seventh week which is less than 9.3 months. Since according
to the medical certificate (Exh. 1) Amalia's baby weighed 2.4
kilograms or 2,400 grams, it was a full-term baby even if it was born
before the normal gestation period.
Art. 166 of the Family Code provides:
Legitimacy of a child may be impugned only on the
following grounds:
(1) That it was physically impossible for the
husband to have sexual intercourse with his wife
within the first 120 days of the 300 days which
immediately preceded the birth of the child
because of:
(a) the physical incapacity of the
husband to have sexual
intercourse with his wife;
(b) the fact that the husband and
wife were living separately in
such a way that sexual
intercourse was not possible; or
(c) serious illness of the
husband, which absolutely
prevented sexual intercourse;
(2) That it is proved that for biological or other
scientific reasons, the child could not have been
that of the husband, except in the
instance provided in the second paragraph of
Article 164; . . .
In the case at bar, it can be inferred that conception occurred at or
about the time that accused-appellant is alleged to have committed
the crime, i.e., within 120 days from the commission of the offense
in September 1991. 15Pursuant to Art. 166 of the Family Code,
accused-appellant can overcome the presumption that Amalia's
child was begotten as a result of her having been raped in
September 1991 only if he can show either that it was physically
impossible for him to have sexual intercourse because of impotence
or serious illness which absolutely prevents him from having sexual
intercourse or that Amalia had sexual intercourse with another man.
However, accused-appellant has not shown either of these.
The testimony of Amalia, as corroborated by Nenita No and
Bernardita Marquinez, leaves no doubt in our mind that accused-
appellant is the father of the child. Therefore, in accordance with
Art. 345 of the Revised Penal Code, accused-appellant should be
ordered to pay support.
In any event, the impregnation of a woman is not an element of
rape. Proof that the child was fathered by another man does not
show that accused-appellant is not guilty, considering the positive
testimony of Amalia that accused-appellant had abused her. As held
in People v. Alib: 16
. . . Under Article 335 of the Revised Penal Code,
rape is committed by having carnal knowledge of a
woman under any of the following circumstances:
(1) By using force or
intimidation;
(2) When the woman is deprived
of reason or otherwise
unconscious; and
(3) When the woman is under
twelve years of age, even though
neither of the circumstances
mentioned in the two next
preceding paragraphs shall be
present.
It is therefore quite clear that the pregnancy of the
victim is not required. For the conviction of an
accused, it is sufficient that the prosecution
establish beyond reasonable doubt that he had
carnal knowledge of the offended party and that
he had committed such act under any of the
circumstances enumerated above. Carnal
knowledge is defined as the act of a man having
sexual bodily connections with a woman;
Indeed, the findings of the trial court deserve the great respect
usually accorded the findings of triers of facts who had the
opportunity of observing the demeanor of the witnesses while
testifying. Amalia's inability to recall the exact date she was raped
cannot affect her credibility, especially considering her condition of
feeblemindedness. In People v. Quinones, 17 which involved the rape
of a 25-year old retardate who also could not recount when she was
raped by the accused in that case, this Court held:
[T]he date of the occurrence of the rape is not an
essential element in the commission of the rape.
That is why the Amended Information reads: Q When were these five (5)
"[t]hat on or about the 5th of June 1989 . . ." times?
Suffice it to say that it was shown that rape under
Art. 335, par. (2), of the Revised Penal Code was A I went home in October and
committed, and that the evidence presented December.
established beyond a ray of doubt that accused-
appellant was responsible therefor. 18 Q You said five (5) times — you
said you went home five (5)
It is noteworthy that in this appeal accused-appellant does not times, in October and December
reiterate his original defense that in September 1991 he was not in only?
Salvacion, Iriga because he was then tending a duck farm in San
Jose, Buhi, Camarines, Sur, fifteen kilometers away. For alibi is A Yes, sir.
inherently a weak defense which cannot prevail over the positive
identification of the accused. 19 Furthermore, his claim that he was
Q You did not go home in
elsewhere at the time of the crime is belied by his own witness,
August?
Santos Ramos, who admitted that he and accused-appellant took
turns going home to their families in Salvacion. By testifying that he
A No, sir.
did not go home in September 1991, Santos, by implication,
admitted that it was accused-appellant's turn to go home in that
Q You did not also go home in
month. Santos Ramos testified:
September?
Q But the fact is, you and Nixon
Malapo did never leave the A No, sir. 20
ducks you were tending to from
the time that they were brought Answering questions from the trial judge, he said:
at Salay in July up to the time
you left in January, 1992? Q During that period between
July, 1991 to January, 1992, do
A Sometimes, one of us also you remember if Nixon Malapo
leave. also visited?
Q And when one of you leave, A Yes, Your Honor.
where do you go?
Q Do you remember how many
A We go home to our house, sir. times did he visit his family
during that period?
Q And will you tell the Court how
many times you went home A Yes, Your Honor, the same
between July, 1991 to January, number of times that I went
1992? home.
A About five (5) times, sir? Q He went home on those days
when you were on duty?
 A Yes, Your Honor. 21
In addition to the foregoing, Felipe Edroso, the other defense
witness, testified:
PROS. CANUTO:
Q In September 1991 he
[accused-appellant] also used to
leave San Jose, Salay, and visited
his family in Salvacion, stayed
there for about a day and then
returned to his work in San Jose,
Salay?
A Yes, Sir.
Q And in October 1991, he also
would leave San Jose Salay, to
visit his family in Salvacion and
stayed with his family for about
a day and then returned [to] his
work in San Jose, Salay?
A Yes, Sir.
Q Now, in 1991 do you know
whether Nixon Malapo was
married or not?
A Yes, Sir.
Q Did they have children at that
time?
A Yes, Sir.
Q And you will agree with me
that this could be the reason of
[sic] the fact that he already had
his wife; had his family that he
did not continuously stay in
Buhi, for three (3) months, but
that he would leave San Jose,
Salay and visited his family once
in a while in Salvacion during
that time/period?
A Very seldom, Sir. 22
In conclusion, we hold that the trial court correctly found accused-
appellant guilty of rape. However, it failed to order accused-
appellant to pay indemnity. After reciting that, in all criminal cases,
unless the offended party reserves the right to institute a separate
civil action, she has a right to recover civil indemnity, the trial court
awarded the complainant in this case moral damages only. As we
have explained in a number of cases, 23 the indemnity provided in
criminal law as civil liability is the equivalent of actual or
compensatory damages in civil law. It is, therefore, separate and
distinct from any award of moral damages. As currently fixed, the
indemnity for rape is P50,000.00. However, as we have recently held
in People v. Victor, 24 if rape is committed or is qualified by any of
the circumstances which under the law (R.A. No. 4111 and R.A. No.
7659) would justify the imposition of the death penalty, the
indemnity shall be in an amount not less than P75,000,00.
Since in this case the rape is not qualified, the indemnity should be
P50,000.00. This is in addition to the amount of P50,000.00 awarded
by the trial court as moral damages. It should be added that the
latter amount is automatically granted in rape cases without need of
any proof. It is assumed that the offended party has suffered moral
injuries entitling her to the award of such damages. As we explained
in the recent case of People v. Prades: 25
The conventional requirement of allegata et
probata in civil procedure and for essentially civil
cases should be dispensed with in criminal
prosecutions for rape with the civil aspect
included therein, since no appropriate pleadings
are filed wherein such allegations can be made.
Corollarily, the fact that complainant has suffered
the trauma of mental, physical and psychological
sufferings which constitute the bases for moral
damages are too obvious to still require the recital
thereof at the trial by the victim, since the Court
itself even assumes and acknowledges such agony
on her part as a gauge of her credibility. What
exists by necessary implication as being ineludibly
present in the case need not go through the
superfluity of still being proved through a
testimonial charade.
Mention was earlier made that since Amalia's baby was begotten as
a result of the rape, Accused-appellant is liable for support. Under
Art. 345 of the Revised Penal Code, in addition to the
indemnification of the offended party, persons guilty of rape must in
every case support the offspring. Although said article also provides
for the acknowledgment of the child unless the offender is married,
this Court has already ruled that:
Art. 176 of the Family Code confers parental
authority over illegitimate children on the mother,
and likewise provides for their entitlement to
support in conformity with the Family Code. As
such, there is no further need for the prohibition
against acknowledgment of the offspring by an
offender who is married which would vest
parental authority in him. Therefore, under Article
345 of the Revised Penal Code, the offender in a
rape case who is married can only be sentenced to
indemnify the victim and support the offspring, if
there be any. In the instant case then, the accused
should also be ordered to support his illegitimate
offspring, Tracy Jhuen Nieto, with Marie Elena
Nieto, but in light of Article 201 of the Family
Code, the amount and terms thereof are to be
determined by the trial court only after due notice
and hearing. 26
Therefore, given the fact that Amalia's child is conclusively the
illegitimate child of the accused-appellant, 27 the acknowledgment
in this instance should be understood to refer only to the filiation of
the child. 28
WHEREFORE, the decision of the Regional Trial Court is AFFIRMED,
with the MODIFICATION that the accused-appellant is ordered to
pay complainant Amalia Trinidad the sum of P50,000.00 as
indemnity, in addition to the amount of P50,000.00 granted by the
trial court as moral damages, as well as to acknowledge the filiation
of complainant's offspring and to give support, the amount of which
shall be determined by the trial court. Accordingly, the records of
this case are hereby REMANDED to the Regional Trial Court for the
fixing of the amount of support.

SO ORDERED.
FIRST DIVISION
G.R. No. 86302 September 24, 1991
CASIMIRO MENDOZA, petitioner,
vs.
HON. COURT OF APPEALS and TEOPISTA TORING
TUÑACAO, respondents.
Bienvenido R. Saniel, Jr. for petitioner.
Domingo Antigua & Associates for private respondent.
CRUZ, J.:
The private respondent claimed she was the illegitimate daughter of
Casimiro Mendoza, but the latter denied her claim. He denied it to
his dying day. The trial court believed him and dismissed her
complaint for compulsory recognition. The appellate court did not
and reversed the judgment of the court below. Now the issue is
before us on certiorari.
The complaint was filed on August 21, 1981, in the Regional Trial
Court in Cebu City. Teopista Toring Tufiacao, the herein private
respondent, alleged that she was born on August 20, 1930, to
Brigida Toring, who was then single, and defendant Casimiro
Mendoza, married at that time to Emiliana Barrientos. She averred
that Mendoza recognized her as an illegitimate child by treating her
as such and according her the rights and privileges of a recognized
illegitimate child.
Casimiro Mendoza, then already 91 years old, specifically denied the
plaintiffs allegations and set up a counterclaim for damages and
attorney's fees.
Amplifying on her complaint, Teopista testified that it was her
mother who told her that her father was Casimiro. She called him
Papa Miroy. She lived with her mother because Casimiro was
married but she used to visit him at his house. When she married
Valentin Tufiacao, Casimiro bought a passenger truck and engaged
him to drive it so he could have a livelihood. Casimiro later sold the
truck but gave the proceeds of the sale to her and her husband. In
1977, Casimiro allowed her son, Lolito Tufiacao, to build a house on
his lot and later he gave her money to buy her own lot from her
brother, Vicente Toring. On February 14, 1977, Casimiro opened a
joint savings account with her as a co-depositor at the Mandaue City
branch of the Philippine Commercial and Industrial Bank. Two years
later, Margarita Bate, Casimiro's adopted daughter, took the
passbook from her, but Casimiro ordered it returned to her after
admonishing Margarita.1
Lolito Tufiacao corroborated his mother and said he considered
Casimiro his grandfather because Teopista said so. He would kiss his
hand whenever they saw each other and Casimiro would give him
money. Casimiro used to invite him to his house and give him
jackfruits. when his grandfather learned that he was living on a
rented lot, the old man allowed him to build a house on the
former's land.2
Two other witnesses testified for Teopista, namely, Gaudencio
Mendoza and Isaac Mendoza, both relatives of Casimiro.
Gaudencio said he was a cousin of Casimiro and knew Brigida Toring
because she used to work with him in a saltbed in Opao. Casimiro
himself told him she was his sweetheart. Later, Gaudencio acted as
a go-between for their liaison, which eventually resulted in Brigida
becoming pregnant in 1930 and giving birth to Teopista. Casimiro
handed him P20.00 to be given to Brigida at Teopista's baptism.
Casimiro also gave him P5.00 every so often to be delivered to
Brigida.3
Isaac testified that his uncle Casimiro was the father of Teopista
because his father Hipolito, Casimiro's brother, and his
grandmother, Brigida Mendoza, so informed him. He worked on
Casimiro's boat and whenever Casimiro paid him his salary, he
would also give him various amounts from P2.00 to P10.00 to be
delivered to Teopista. Isaac also declared that Casimiro intended to
give certain properties to Teopista.4
Casimiro himself did not testify because of his advanced age, but
Vicente Toring took the stand to resist Teopista's claim.
Vicente, who professed to be Casimiro's only illegitimate child by
Brigida Toring, declared that Teopista's father was not Casimiro but
a carpenter named Ondoy, who later abandoned her. Vicente said
that it was he who sold a lot to Teopista, and for a low price because
she was his half sister. It was also he who permitted Lolito to build a
house on Casimiro's lot. This witness stressed that when Casimiro
was hospitalized, Teopista never once visited her alleged father.5
The last statement was shared by the other defense witness, Julieta
Ouano, Casimiro's niece, who also affirmed that Vicente Toring used
to work as a cook in Casimiro's boat. She flatly declared she had
never met Teopista but she knew her husband, who was a
mechanic.6
The rules on compulsory recognition are embodied in Article 283 of
the Civil Code, which has been held to be applicable not only to
natural children but also to spurious children. 7 The said article
provides:
Art. 283. In any of the following cases, the father is obliged
to recognize the child as his natural child:
(1) In cases of rape, abduction or seduction, when the
period of the offense coincides more or less with that of
the conception;
(2) When the child is in continuous possession of status of a
child of the alleged father by the direct acts of the latter or
of his family;
(3) when the child was conceived during the time when the
mother cohabited with the supposed father.
(4) When the child has in his favor any evidence or proof
that the defendant is his father.
This article has been substantially reproduced in the Family Code as
follows:
Art. 172. The filiation of legitimate children is established
by any of the following:
 (1) The record of birth appearing in the civil register or a
final judgment; or
(2) An admission of legitimate filiation in a public document
or a private handwritten instrument and signed by the
parent concerned.
In the absence of the foregoing evidence, the legitimate filiation
shall be proved by:
(1) The open and continuous possession of the status of a
legitimate child; or
(2) Any other means allowed by the Rules of Court and
special laws.
Art. 175. Illegitimate children may establish their
illegitimate filiation in the same way and on the same
evidence as legitimate children.
In his remarkably well-written decision, Judge Leoncio P. Abarquez
rejected the plaintiff' s claim that she was in continuous possession
of the status of a child of the alleged father by the direct acts of the
latter or of his family. His Honor declared:
In this particular case the established evidence is that
plaintiff continuously lived with her mother, together with
her sister Paulina. Neither the plaintiff nor her husband had
come to live with the defendant. At most, only their son,
Lolito Tufiacao was allowed to construct a small house in
the land of the defendant, either by the defendant himself,
as claimed by the plaintiff, or by Vicente Toring, as claimed
by the witnesses of the defendant. The defendant never
spent for the support and education of the plaintiff. He did
not allow the plaintiff to carry his surname. The instances
when the defendant gave money to the plaintiff were,
more or less, off-and-on or rather isolatedly periodic. They
were made at considerable intervals and were not given
directly to the plaintiff but through a third person. Thus,
while it may be conceded that: a) the defendant's parents,
as well as the plaintiff himself told Gaudencio Mendoza and
Isaac Mendoza that Teopista is the daughter of the
defendant; b) that Teopista calls the defendant as "Papa
Miroy"; c) that Teopista would kiss defendant's hand when
she met him; d) that the defendant gave to her and her
husband the income of the passenger truck as well as the
proceeds of the sale thereof, all these acts, taken
altogether, are not sufficient to show that the plaintiff had
possessed continuously the status of a recognized
illegitimate child.
On appeal, however, the respondent courts8 disagreed and arrived
at its own conclusion as follows:
Contrary to the conclusion of the court a quo, We find that
appellant has sufficiently proven her continuous possession
of such status. Although the court a quo did not pass on the
credibility of the various witnesses presented, We consider
the witnesses for the plaintiff as credible and unbiased. No
proof was shown to render them otherwise. There is no
showing that Isaac and Gaudencio testified falsely. They
were disinterested parties with no axe to grind against the
appellee or the people actively acting in his behalf. In fact
even the court a quo conceded to the truthfulness of some
of their testimonies.
By contrast, it continued, Vicente Toring was an interested party
who was claiming to be the sole recognized natural child of Casimiro
and stood to lose much inheritance if Teopista's claim were
recognized. He had earlier filed theft charges against his own sister
and libel charges against her husband. As for Julieta Ouano, the
respondent court found it difficult to believe that she had never met
Teopista although both of them have been living in the same
barangay since birth.
The decision of the Court of Appeals was promulgated on August 11,
1988. A motion for reconsideration was filed, and it was only from
the opposition thereto of the private respondent that Casimiro's
counsel learned that his client had died on May 1986. He
immediately informed the respondent court build the motion for
reconsideration was denied without any substitution of parties
having been effected. The said counsel, now acting for Vicente
Toring, then asked this Court to substitute the latter for the
deceased Casimiro Mendoza in the present petition.
The applicable provisions of the Rules of Court are Sections 16 and
17 of Rule 3, reading as follows:
Sec. 16. Duty of attorney upon death, incapacity or
incompetency of party. — Whenever a party to a pending
case dies, becomes incapacitated or incompetent, it shall
be the duty of his attorney to inform the court promptly of
such death, incapacity or incompetency, and to give the
name and residence of his executor, guardian or other legal
representative.
Sec. 17. Death of party. — After a party dies and the claim
is not thereby extinguished, the court shall order, upon
proper notice, the legal representative of the deceased to
appear and to be substituted for the deceased, within a
period of thirty (30) days, or within such time as may be
granted. If the legal representative fails to appear within
said time the court may order the opposing party to
procure the appointment of a legal representative of the
deceased within a time to be specified by the court, and
the representative shall immediately appear for and on
behalf of the interest of the deceased. The court charges
involved in procuring such appointment, if defrayed by the
opposing party, may be recovered as costs. The heirs of the
deceased may be allowed to be substituted for the
deceased, without requiring the appointment of an
executor or administrator and the court may appoint
guardian ad litem for the minor heirs.
In the early case of Masecampo vs. Masecampo,9 it was settled that:
The subsequent death of the father is not a bar to the
action commenced during Ms lifetime by one who
pretended to be his natural son. It may survive against the
executor, administrator, or any other legal representative
of the testate or intestate succession.
Pursuant to the above rules and jurisprudence, we hereby allow the
substitution of Casimiro Mendoza pro haec viceand nunc pro tunc by
Vicente Toring, who appears to be the former's illegitimate son. This
disposes of the private respondent's contention that the lawyer-
client relationship terminated with Casimiro's death and that
Vicente has no personality now to substitute him.
Now to the merits.
We note that both the trial court and the respondent court, in
arriving at their respective conclusions, focused on the question of
whether or not Teopista was in continuous possession of her
claimed status of an illegitimate child of Casimiro Mendoza. This was
understandable because Teopista herself had apparently based her
claim on this particular ground as proof of filiation allowed under
Article 283 of the Civil Code.
To establish "the open and continuous possession of the status of an
illegitimate child," it is necessary to comply with certain
jurisprudential requirements. "Continuous" does not mean that the
concession of status shall continue forever but only that it shall not
be of an intermittent character while it continues. 10 The possession
of such status means that the father has treated the child as his
own, directly and not through others, spontaneously and without
concealment though without publicity (since the relation is
illegitimate).11 There must be a showing of the permanent intention
of the supposed father to consider the child as his own, by
continuous and clear manifestation of paternal affection and care. 12
With these guidelines in mind, we agree with the trial court that
Teopista has not been in continuous possession of the status of a
recognized illegitimate child of Casimiro Mendoza, under both
Article 283 of the Civil Code and Article 172 of the Family Code.
The plaintiff lived with her mother and not with the defendant
although they were both residents of Omapad, Mandaue City. It is
true, as the respondent court observed, that this could have been
because defendant had a legitimate wife. However, it is not unusual
for a father to take his illegitimate child into his house to live with
him and his legitimate wife, especially if the couple is childless, as in
this case. In fact, Vicente Toring, who also claimed to be an
illegitimate child of Casimiro, lived with the latter and his wife,
apparently without objection from the latter. We also note that
Teopista did not use the surname of Casimiro although this is, of
course, not decisive of one's status. No less significantly, the
regularity of defendant's act of giving money to the plaintiff through
Gaudencio Mendoza and Isaac Mendoza has not been sufficiently
established. The trial court correctly concluded that such instances
were "off-and-on," not continuous and intermittent. Indeed, the
plaintiff s testimony on this point is tenuous as in one breath she
said that her mother solely spent for her education and in another
that Casimiro helped in supporting her.13
But although Teopista has failed to show that she was in open and
continuous possession of the status of an illegitimate child of
Casimiro, we find that she has nevertheless established that status
by another method.
What both the trial court and the respondent court did not take into
account is that an illegitimate child is allowed to establish his
claimed filiation by "any other means allowed by the Rules of Court
and special laws," according to the Civil Code, or "by evidence or
proof in his favor that the defendant is her father," according to the
Family Code. Such evidence may consist of his baptismal certificate,
a judicial admission, a family Bible in which his name has been
entered, common reputation respecting his pedigree, admission by
silence, the testimonies of witnesses, and other kinds of proof
admissible under Rule 130 of the Rules of Court.14
The trial court conceded that "the defendant's parents, as well as
the plaintiff himself, told Gaudencio Mendoza and Isaac Mendoza,
that Teopista was the daughter of the defendant." It should have
probed this matter further in light of Rule 130, Section 39, of the
Rules of Court, providing as follows:
Sec. 39. — Act or declarations about pedigree. — The act or
declaration of a person deceased, or unable to testify, in
respect to the pedigree of another person related to him by
birth or marriage, may be received in evidence where it
occurred before the controversy, and the relationship
between the two persons is shown by evidence other than
such act or declaration. The word "pedigree" includes
relationship, family genealogy, birth, marriage, death, the
dates when and the places where these facts occurred, and
the names of the relatives. It embraces also facts of family
history intimately connected with pedigree.
The statement of the trial court regarding Teopista's parentage is
not entirely accurate. To set the record straight, we will stress that it
was only Isaac Mendoza who testified on this question of pedigree,
and he did not cite Casimiro's father. His testimony was that he was
informed by his father Hipolito, who was Casimiro's brother, and
Brigida Mendoza, Casimiro's own mother, that Teopista was
Casimiro's illegitimate daughter.15
Such acts or declarations may be received in evidence as an
exception to the hearsay rule because "it is the best the nature of
the case admits and because greater evils are apprehended from
the rejection of such proof than from its admission.16 Nevertheless,
precisely because of its nature as hearsay evidence, there are
certain safeguards against its abuse. Commenting on this provision,
Francisco enumerates the following requisites that have to be
complied with before the act or declaration regarding pedigree may
be admitted in evidence:
1. The declarant is dead or unable to testify.
2. The pedigree must be in issue.
3. The declarant must be a relative of the person whose
pedigree is in issue.
4. The declaration must be made before the controversy
arose.
5. The relationship between the declarant and the person
whose pedigree is in question must be shown by evidence
other than such declaration.17
All the above requisites are present in the case at bar. The persons
who made the declarations about the pedigree of Teopista, namely,
the mother of Casimiro, Brigida Mendoza, and his brother, Hipolito,
were both dead at the time of Isaac's testimony. The declarations
referred to the filiation of Teopista and the paternity of Casimiro,
which were the very issues involved in the complaint for compulsory
recognition. The declarations were made before the complaint was
filed by Teopista or before the controversy arose between her and
Casimiro. Finally, the relationship between the declarants and
Casimiro has been established by evidence other than such
declaration, consisting of the extrajudicial partition of the estate of
Florencio Mendoza, in which Casimiro was mentioned as one of his
heirs.18
The said declarations have not been refuted. Casimiro could have
done this by deposition if he was too old and weak to testify at the
trial of the case.

If we consider the other circumstances narrated under oath by the

private respondent and her witnesses, such as the financial doles
made by Casimiro to Brigida Toring, the hiring of Teopista's husband
to drive the passenger truck of Casimiro, who later sold the vehicle
and gave the proceeds of the sale to Teopista and her husband, the
permission he gave Lolito Tufiacao to build a house on his land after
he found that the latter was living on a rented lot, and, no less
remarkably, the joint savings account Casimiro opened with
Teopista, we can reasonably conclude that Teopista was the
illegitimate daughter of Casimiro Mendoza.

We hold that by virtue of the above-discussed declarations, and in

view of the other circumstances of this case, 'reopista Toring
Tufiacao has proved that she is the illegitimate daughter of Casimiro
Mendoza and is entitled to be recognized as such. In so holding, we
give effect to the policy of the Civil Code and the Family Code to
liberalize the rule on the investigation of "the paternity of
illegitimate children, without prejudice to the right of the alleged
parent to resist the claimed status with his own defenses, including
evidence now obtainable through the facilities of modern medicine
and technology

WHEREFORE, the petition is DENIED. Judgment is hereby rendered

DECLARING Teopista Toring Tuñacao to be the illegitimate child of
the late Casimiro Mendoza and entitled to all the rights appurtenant
to such status. Costs against the petitioner.

SO ORDERED.
SECOND DIVISION
G.R. No. 138961 March 7, 2002
WILLIAM LIYAO, JR., represented by his mother Corazon
Garcia, petitioner,
vs.
JUANITA TANHOTI-LIYAO, PEARL MARGARET L. TAN, TITA ROSE L.
TAN AND LINDA CHRISTINA LIYAO,respondents.
DECISION
DE LEON, JR., J.:
Before us is a petition for review on certiorari assailing the decision
dated June 4, 1999 of the Court of Appeals in CA-G.R. C.V. No.
453941 which reversed the decision of the Regional Trial Court (RTC)
of Pasig, Metro Manila, Branch 167 in declaring William Liyao, Jr. as
the illegitimate (spurious) son of the deceased William Liyao and
ordering Juanita Tanhoti-Liyao, Pearl Margaret L. Tan, Tita Rose L.
Tan and Linda Christina Liyao to recognize and acknowledge William
Liyao, Jr. as a compulsory heir of the deceased William Liyao and
entitled to all successional rights as such and to pay the costs of the
suit.
On November 29,1976, William Liyao, Jr., represented by his mother
Corazon G. Garcia, filed Civil Case No. 24943 before the RTC of Pasig,
Branch 167 which is an action for compulsory recognition as "the
illegitimate (spurious) child of the late William Liyao" against herein
respondents, Juanita Tanhoti-Liyao, Pearl Margaret L. Tan, Tita Rose
L. Tan and Linda Christina Liyao.2 The complaint was later amended
to include the allegation that petitioner "was in continuous
possession and enjoyment of the status of the child of said William
Liyao," petitioner having been "recognized and acknowledged as
such child by the decedent during his lifetime."3
The facts as alleged by petitioner are as follows:
Corazon G. Garcia is legally married to but living separately from
Ramon M. Yulo for more than ten (10) years at the time of the
institution of the said civil case. Corazon cohabited with the late
William Liyao from 1965 up to the time of William’s untimely
demise on December 2, 1975. They lived together in the company of
Corazon’s two (2) children from her subsisting marriage, namely:
Enrique and Bernadette, both surnamed Yulo, in a succession of
rented houses in Quezon City and Manila. This was with the
knowledge of William Liyao’s legitimate children, Tita Rose L. Tan
and Linda Christina Liyao-Ortiga, from his subsisting marriage with
Juanita Tanhoti Liyao. Tita Rose and Christina were both employed
at the Far East Realty Investment, Inc. of which Corazon and William
were then vice president and president, respectively.
Sometime in 1974, Corazon bought a lot from Ortigas and Co. which
required the signature of her husband, Ramon Yulo, to show his
consent to the aforesaid sale. She failed to secure his signature and,
had never been in touch with him despite the necessity to meet
him. Upon the advice of William Liyao, the sale of the parcel of land
located at the Valle Verde Subdivision was registered under the
name of Far East Realty Investment, Inc.
On June 9, 1975, Corazon gave birth to William Liyao, Jr. at the
Cardinal Santos Memorial Hospital. During her three (3) day stay at
the hospital, William Liyao visited and stayed with her and the new
born baby, William, Jr. (Billy). All the medical and hospital expenses,
food and clothing were paid under the account of William Liyao.
William Liyao even asked his confidential secretary, Mrs. Virginia
Rodriguez, to secure a copy of Billy’s birth certificate. He likewise
instructed Corazon to open a bank account for Billy with the
Consolidated Bank and Trust Company4 and gave weekly amounts to
be deposited therein.5 William Liyao would bring Billy to the office,
introduce him as his good looking son and had their pictures taken
together.6
During the lifetime of William Liyao, several pictures were taken
showing, among others, William Liyao and Corazon together with
Billy’s godfather, Fr. Julian Ruiz, William Liyao’s legal staff and their
wives while on vacation in Baguio.7 Corazon also presented pictures
in court to prove that that she usually accompanied William Liyao
while attending various social gatherings and other important
meetings.8 During the occasion of William Liyao’s last birthday on
November 22, 1975 held at the Republic Supermarket, William Liyao
expressly acknowledged Billy as his son in the presence of Fr. Ruiz,
Maurita Pasion and other friends and said, "Hey, look I am still
young, I can still make a good looking son."9 Since birth, Billy had
been in continuous possession and enjoyment of the status of a
recognized and/or acknowledged child of William Liyao by the
latter’s direct and overt acts. William Liyao supported Billy and paid
for his food, clothing and other material needs. However, after
William Liyao’s death, it was Corazon who provided sole support to
Billy and took care of his tuition fees at La Salle, Greenhills. William
Liyao left his personal belongings, collections, clothing, old
newspaper clippings and laminations at the house in White Plains
where he shared his last moments with Corazon.
Testifying for the petitioner, Maurita Pasion declared that she knew
both Corazon G. Garcia and William Liyao who were godparents to
her children. She used to visit Corazon and William Liyao from 1965-
1975. The two children of Corazon from her marriage to Ramon
Yulo, namely, Bernadette and Enrique (Ike), together with some
housemaids lived with Corazon and William Liyao as one family. On
some occasions like birthdays or some other celebrations, Maurita
would sleep in the couple’s residence and cook for the family.
During these occasions, she would usually see William Liyao in
sleeping clothes. When Corazon, during the latter part of 1974, was
pregnant with her child Billy, Maurita often visited her three (3) to
four (4) times a week in Greenhills and later on in White Plains
where she would often see William Liyao. Being a close friend of
Corazon, she was at the Cardinal Santos Memorial Hospital during
the birth of Billy. She continuously visited them at White Plains and
knew that William Liyao, while living with her friend Corazon, gave
support by way of grocery supplies, money for household expenses
and matriculation fees for the two (2) older children, Bernadette
and Enrique. During William Liyao’s birthday on November 22, 1975
held at the Republic Supermarket Office, he was carrying Billy and
told everybody present, including his two (2) daughters from his
legal marriage, "Look, this is my son, very guapo and healthy."10 He
then talked about his plan for the baptism of Billy before Christmas.
He intended to make it "engrande" and "make the bells of San
Sebastian Church ring."11 Unfortunately, this did not happen since
William Liyao passed away on December 2, 1975. Maurita attended
Mr. Liyao’s funeral and helped Corazon pack his clothes. She even
recognized a short sleeved shirt of blue and gray 12 which Mr. Liyao
wore in a photograph13 as well as another shirt of lime green14 as
belonging to the deceased. A note was also presented with the
following inscriptions: "To Cora, Love From William."15 Maurita
remembered having invited the couple during her mother’s birthday
where the couple had their pictures taken while exhibiting
affectionate poses with one another. Maurita knew that Corazon is
still married to Ramon Yulo since her marriage has not been
annulled nor is Corazon legally separated from her said husband.
However, during the entire cohabitation of William Liyao with
Corazon Garcia, Maurita had not seen Ramon Yulo or any other man
in the house when she usually visited Corazon.
Gloria Panopio testified that she is the owner of a beauty parlor and
that she knew that Billy is the son of her neighbors, William Liyao
and Corazon Garcia, the latter being one of her customers. Gloria
met Mr. Liyao at Corazon’s house in Scout Delgado, Quezon City in
the Christmas of 1965. Gloria had numerous occasions to see Mr.
Liyao from 1966 to 1974 and even more so when the couple
transferred to White Plains, Quezon City from 1974-1975. At the
time Corazon was conceiving, Mr. Liyao was worried that Corazon
might have another miscarriage so he insisted that she just stay in
the house, play mahjong and not be bored. Gloria taught Corazon
how to play mahjong and together with Atty. Brillantes’ wife and
sister-in-law, had mahjong sessions among themselves. Gloria knew
that Mr. Liyao provided Corazon with a rented house, paid the
salary of the maids and food for Billy. He also gave Corazon financial
support. Gloria knew that Corazon is married but is separated from
Ramon Yulo although Gloria never had any occasion to see Mr. Yulo
with Corazon in the house where Mr. Liyao and Corazon lived.
Enrique Garcia Yulo testified that he had not heard from his father,
Ramon Yulo, from the time that the latter abandoned and separated
from his family. Enrique was about six (6) years old when William
Liyao started to live with them up to the time of the latter’s death
on December 2, 1975. Mr. Liyao was very supportive and fond of
Enrique’s half brother, Billy. He identified several pictures showing
Mr. Liyao carrying Billy at the house as well as in the office.
Enrique’s testimony was corroborated by his sister, Bernadette Yulo,
who testified that the various pictures showing Mr. Liyao carrying
Billy could not have been superimposed and that the negatives were
in the possession of her mother, Corazon Garcia.
Respondents, on the other hand, painted a different picture of the
story.
Linda Christina Liyao-Ortiga stated that her parents, William Liyao
and Juanita Tanhoti-Liyao, were legally married.16Linda grew up and
lived with her parents at San Lorenzo Village, Makati, Metro Manila
until she got married; that her parents were not separated legally or
in fact and that there was no reason why any of her parents would
institute legal separation proceedings in court. Her father lived at
their house in San Lorenzo Village and came home regularly. Even
during out of town business trips or for conferences with the
lawyers at the office, her father would change his clothes at home
because of his personal hygiene and habits. Her father reportedly
had trouble sleeping in other people’s homes. Linda described him
as very conservative and a strict disciplinarian. He believed that no
amount of success would compensate for failure of a home. As a
businessman, he was very tough, strong, fought for what he
believed in and did not give up easily. He suffered two strokes
before the fatal attack which led to his death on December 2, 1975.
He suffered a stroke at the office sometime in April-May 1974 and
was attended by Dr. Santiago Co. He then stayed in the house for
two (2) to three (3) months for his therapy and acupuncture
treatment. He could not talk, move, walk, write or sign his name. In
the meantime, Linda and her sister, Tita Rose Liyao-Tan, ran the
office. She handled the collection of rents while her sister referred
legal matters to their lawyers. William Liyao was bedridden and had
personally changed. He was not active in business and had dietary
restrictions. Mr. Liyao also suffered a milder stroke during the latter
part of September to October 1974. He stayed home for two (2) to
three (3) days and went back to work. He felt depressed, however,
and was easily bored. He did not put in long hours in the office
unlike before and tried to spend more time with his family.
Linda testified that she knew Corazon Garcia is still married to
Ramon Yulo. Corazon was not legally separated from her husband
and the records from the Local Civil Registrar do not indicate that
the couple obtained any annulment17of their marriage. Once in
1973, Linda chanced upon Ramon Yulo picking up Corazon Garcia at
the company garage. Immediately after the death of Linda’s father,
Corazon went to Linda’s office for the return of the former’s alleged
investments with the Far East Realty Investment, Inc. including a
parcel of land sold by Ortigas and Company. Linda added that
Corazon, while still a Vice-President of the company, was able to
take out documents, clothes and several laminated pictures of
William Liyao from the office. There was one instance when she was
told by the guards, "Mrs. Yulo is leaving and taking out things
again."18 Linda then instructed the guards to bring Mrs. Yulo to the
office upstairs but her sister, Tita Rose, decided to let Corazon
Garcia go. Linda did not recognize any article of clothing which
belonged to her father after having been shown three (3) large suit
cases full of men’s clothes, underwear, sweaters, shorts and
pajamas.
Tita Rose Liyao-Tan testified that her parents were legally married
and had never been separated. They resided at No. 21 Hernandez
Street, San Lorenzo Village, Makati up to the time of her father’s
death on December 2, 1975.19Her father suffered two (2) minor
cardio-vascular arrests (CVA) prior to his death. During the first
heart attack sometime between April and May 1974, his speech and
hands were affected and he had to stay home for two (2) to three
(3) months under strict medication, taking aldomet, serpadil and
cifromet which were prescribed by Dr. Bonifacio Yap, for high blood
pressure and cholesterol level control.20 Tita Rose testified that after
the death of Mr. Liyao, Corazon Garcia was paid the amount of One
Hundred Thousand Pesos (₱100,000.00) representing her
investment in the Far East Realty Investment Inc. Tita Rose also
stated that her family never received any formal demand that they
recognize a certain William Liyao, Jr. as an illegitimate son of her
father, William Liyao. After assuming the position of President of the
company, Tita Rose did not come across any check signed by her
late father representing payment to lessors as rentals for the house
occupied by Corazon Garcia. Tita Rose added that the laminated
photographs presented by Corazon Garcia are the personal
collection of the deceased which were displayed at the latter’s
office.
The last witness who testified for the respondents was Ramon
Pineda, driver and bodyguard of William Liyao from 1962 to 1974,
who said that he usually reported for work at San Lorenzo Village,
Makati to pick up his boss at 8:00 o’clock in the morning. At past
7:00 o’clock in the evening, either Carlos Palamigan or Serafin
Villacillo took over as night shift driver. Sometime between April and
May 1974, Mr. Liyao got sick. It was only after a month that he was
able to report to the office. Thereafter, Mr. Liyao was not able to
report to the office regularly. Sometime in September 1974, Mr.
Liyao suffered from another heart attack. Mr. Pineda added that as
a driver and bodyguard of Mr. Liyao, he ran errands for the latter
among which was buying medicine for him
like capasid and aldomet. On December 2, 1975, Mr. Pineda was
called inside the office of Mr. Liyao. Mr. Pineda saw his employer
leaning on the table. He tried to massage Mr. Liyao’s breast and
decided later to carry and bring him to the hospital but Mr. Liyao
died upon arrival thereat. Mrs. Liyao and her daughter, Linda Liyao-
Ortiga were the first to arrive at the hospital.
Mr. Pineda also declared that he knew Corazon Garcia to be one of
the employees of the Republic Supermarket. People in the office
knew that she was married. Her husband, Ramon Yulo, would
sometimes go to the office. One time, in 1974, Mr. Pineda saw
Ramon Yulo at the office garage as if to fetch Corazon Garcia. Mr.
Yulo who was also asking about cars for sale, represented himself as
car dealer.
Witness Pineda declared that he did not know anything about the
claim of Corazon. He freely relayed the information that he saw Mr.
Yulo in the garage of Republic Supermarket once in 1973 and then in
1974 to Atty. Quisumbing when he went to the latter’s law office.
Being the driver of Mr. Liyao for a number of years, Pineda said that
he remembered having driven the group of Mr. Liyao, Atty.
Astraquillo, Atty. Brillantes, Atty. Magno and Atty. Laguio to Baguio
for a vacation together with the lawyers’ wives. During his
employment, as driver of Mr. Liyao, he does not remember driving
for Corazon Garcia on a trip to Baguio or for activities like shopping.
On August 31, 1993, the trial court rendered a decision, the
dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff
and against the defendants as follows:
(a) Confirming the appointment of Corazon G. Garcia as the
guardian ad litem of the minor William Liyao, Jr.;
(b) Declaring the minor William Liyao, Jr. as the illegitimate
(spurious) son of the deceased William Liyao;
(c) Ordering the defendants Juanita Tanhoti Liyao, Pearl
Margaret L. Tan, Tita Rose L. Tan and Christian Liyao, to
recognize, and acknowledge the minor William Liyao, Jr. as
a compulsory heir of the deceased William Liyao, entitled to
all succesional rights as such; and
(d) Costs of suit.21
In ruling for herein petitioner, the trial court said it was convinced
by preponderance of evidence that the deceased William Liyao sired
William Liyao, Jr. since the latter was conceived at the time when
Corazon Garcia cohabited with the deceased. The trial court
observed that herein petitioner had been in continuous possession
and enjoyment of the status of a child of the deceased by direct and
overt acts of the latter such as securing the birth certificate of
petitioner through his confidential secretary, Mrs. Virginia
Rodriguez; openly and publicly acknowledging petitioner as his son;
providing sustenance and even introducing herein petitioner to his
legitimate children.
The Court of Appeals, however, reversed the ruling of the trial court
saying that the law favors the legitimacy rather than the illegitimacy
of the child and "the presumption of legitimacy is thwarted only on
ethnic ground and by proof that marital intimacy between husband
and wife was physically impossible at the period cited in Article 257
in relation to Article 255 of the Civil Code." The appellate court gave
weight to the testimonies of some witnesses for the respondents
that Corazon Garcia and Ramon Yulo who were still legally married
and have not secured legal separation, were seen in each other’s
company during the supposed time that Corazon cohabited with the
deceased William Liyao. The appellate court further noted that the
birth certificate and the baptismal certificate of William Liyao, Jr.
which were presented by petitioner are not sufficient to establish
proof of paternity in the absence of any evidence that the deceased,
William Liyao, had a hand in the preparation of said certificates and
considering that his signature does not appear thereon. The Court of
Appeals stated that neither do family pictures constitute competent
proof of filiation. With regard to the passbook which was presented
as evidence for petitioner, the appellate court observed that there
was nothing in it to prove that the same was opened by William
Liyao for either petitioner or Corazon Garcia since William Liyao’s
signature and name do not appear thereon.
His motion for reconsideration having been denied, petitioner filed
the present petition.
It must be stated at the outset that both petitioner and respondents
have raised a number of issues which relate solely to the sufficiency
of evidence presented by petitioner to establish his claim of filiation
with the late William Liyao. Unfortunately, both parties have
consistently overlooked the real crux of this litigation: May
petitioner impugn his own legitimacy to be able to claim from the
estate of his supposed father, William Liyao?
We deny the present petition.
Under the New Civil Code, a child born and conceived during a valid
marriage is presumed to be legitimate. 22 The presumption of
legitimacy of children does not only flow out from a declaration
contained in the statute but is based on the broad principles of
natural justice and the supposed virtue of the mother. The
presumption is grounded in a policy to protect innocent offspring
from the odium of illegitimacy.23
The presumption of legitimacy of the child, however, is not
conclusive and consequently, may be overthrown by evidence to the
contrary. Hence, Article 255 of the New Civil Code24 provides:
Article 255. Children born after one hundred and eighty days
following the celebration of the marriage, and before three hundred
days following its dissolution or the separation of the spouses shall
be presumed to be legitimate.
Against this presumption no evidence shall be admitted other than
that of the physical impossibility of the husband having access to his
wife within the first one hundred and twenty days of the three
hundred which preceded the birth of the child.
This physical impossibility may be caused:
1) By the impotence of the husband;
2) By the fact that husband and wife were living separately
in such a way that access was not possible;
3) By the serious illness of the husband.
Petitioner insists that his mother, Corazon Garcia, had been living
separately for ten (10) years from her husband, Ramon Yulo, at the
time that she cohabited with the late William Liyao and it was
physically impossible for her to have sexual relations with Ramon
Yulo when petitioner was conceived and born. To bolster his claim,
petitioner presented a document entitled, "Contract of
Separation,"25 executed and signed by Ramon Yulo indicating a Do the acts of Enrique and Bernadette Yulo, the undisputed children
waiver of rights to any and all claims on any property that Corazon of Corazon Garcia with Ramon Yulo, in testifying for herein
Garcia might acquire in the future.26 petitioner amount to impugnation of the legitimacy of the latter?

The fact that Corazon Garcia had been living separately from her We think not. As earlier stated, it is only in exceptional cases that
husband, Ramon Yulo, at the time petitioner was conceived and the heirs of the husband are allowed to contest the legitimacy of the
born is of no moment. While physical impossibility for the husband child. There is nothing on the records to indicate that Ramon Yulo
to have sexual intercourse with his wife is one of the grounds for has already passed away at the time of the birth of the petitioner
impugning the legitimacy of the child, it bears emphasis that the nor at the time of the initiation of this proceedings. Notably, the
grounds for impugning the legitimacy of the child mentioned in case at bar was initiated by petitioner himself through his mother,
Article 255 of the Civil Code may only be invoked by the husband, or Corazon Garcia, and not through Enrique and Bernadette Yulo. It
in proper cases, his heirs under the conditions set forth under is settled that the legitimacy of the child can be impugned only in a
Article 262 of the Civil Code.27 Impugning the legitimacy of the child direct action brought for that purpose, by the proper parties and
is a strictly personal right of the husband, or in exceptional cases, his within the period limited by law.1âwphi1
heirs for the simple reason that he is the one directly confronted
with the scandal and ridicule which the infidelity of his wife Considering the foregoing, we find no reason to discuss the
produces and he should be the one to decide whether to conceal sufficiency of the evidence presented by both parties on the
that infidelity or expose it in view of the moral and economic petitioner’s claim of alleged filiation with the late William Liyao. In
interest involved.28 It is only in exceptional cases that his heirs are any event, there is no clear, competent and positive evidence
allowed to contest such legitimacy. Outside of these cases, none - presented by the petitioner that his alleged father had admitted or
even his heirs - can impugn legitimacy; that would amount o an recognized his paternity.
insult to his memory.29
WHEREFORE, the instant petition is DENIED. The assailed decision of
It is therefor clear that the present petition initiated by Corazon G. the Court of Appeals in CA-G.R. CV No. 45394 is hereby AFFIRMED.
Garcia as guardian ad litem of the then minor, herein petitioner, to No costs.
compel recognition by respondents of petitioner William Liyao, Jr, as
the illegitimate son of the late William Liyao cannot prosper. It is SO ORDERED.
settled that a child born within a valid marriage is presumed
legitimate even though the mother may have declared against its
legitimacy or may have been sentenced as an adulteress. 30 We
cannot allow petitioner to maintain his present petition and subvert
the clear mandate of the law that only the husband, or in
exceptional circumstances, his heirs, could impugn the legitimacy of
a child born in a valid and subsisting marriage. The child himself
cannot choose his own filiation. If the husband, presumed to be the
father does not impugn the legitimacy of the child, then the status
of the child is fixed, and the latter cannot choose to be the child of
his mother’s alleged paramour. On the other hand, if the
presumption of legitimacy is overthrown, the child cannot elect the
paternity of the husband who successfully defeated the
presumption.31
SECOND DIVISION
G.R. No. 159785 April 27, 2007
TEOFISTO I. VERCELES, Petitioner,
vs.
MARIA CLARISSA POSADA, in her own behalf, and as mother of
minor VERNA AIZA POSADA, CONSTANTINO POSADA and
FRANCISCA POSADA, Respondents.
DECISION
QUISUMBING, J.:
This petition for review seeks the reversal of the Decision 1 dated
May 30, 2003 and the Resolution2 dated August 27, 2003 of the
Court of Appeals in CA-G.R. CV No. 50557. The appellate court had
affirmed with modification the Judgment3 dated January 4, 1995 of
the Regional Trial Court (RTC) of Virac, Catanduanes, Branch 42, in
Civil Case No. 1401. The RTC held petitioner liable to pay monthly
support to Verna Aiza Posada since her birth on September 23, 1987
as well as moral and exemplary damages, attorney’s fees and costs
of suit.
The facts in this case as found by the lower courts are as follows:
Respondent Maria Clarissa Posada (Clarissa), a young lass from the
barrio of Pandan, Catanduanes, sometime in 1986 met a close
family friend, petitioner Teofisto I. Verceles, mayor of Pandan. He
then called on the Posadas and at the end of the visit, offered
Clarissa a job.
Clarissa accepted petitioner’s offer and worked as a casual
employee in the mayor’s office starting on September 1, 1986. From
November 10 to 15 in 1986, with companions Aster de Quiros, Pat
del Valle, Jaime and Jocelyn Vargas, she accompanied petitioner to
Legaspi City to attend a seminar on town planning. They stayed at
the Mayon Hotel.
On November 11, 1986, at around 11:00 a.m., petitioner fetched
Clarissa from "My Brother’s Place" where the seminar was being
held. Clarissa avers that he told her that they would have lunch at
Mayon Hotel with their companions who had gone ahead. When
they reached the place her companions were nowhere. After
petitioner ordered food, he started making amorous advances on
her. She panicked, ran and closeted herself inside a comfort room
where she stayed until someone knocked. She said she hurriedly
exited and left the hotel. Afraid of the mayor, she kept the incident
to herself. She went on as casual employee. One of her tasks was
following-up barangay road and maintenance projects.
On December 22, 1986, on orders of petitioner, she went to Virac,
Catanduanes, to follow up funds for barangay projects. At around
11:00 a.m. the same day, she went to Catanduanes Hotel on
instructions of petitioner who asked to be briefed on the progress of
her mission. They met at the lobby and he led her upstairs because
he said he wanted the briefing done at the restaurant at the upper
floor.
Instead, however, petitioner opened a hotel room door, led her in,
and suddenly embraced her, as he told her that he was unhappy
with his wife and would "divorce" her anytime. He also claimed he
could appoint her as a municipal development coordinator. She
succumbed to his advances. But again she kept the incident to
herself.
Sometime in January 1987, when she missed her menstruation, she
said she wrote petitioner that she feared she was pregnant. In
another letter in February 1987, she told him she was pregnant. In a
handwritten letter dated February 4, 1987, he replied:
My darling Chris,
Should you become pregnant even unexpectedly, I should have no
regret, because I love you and you love me.
Let us rejoice a common responsibility – you and I shall take care of
it and let him/her see the light of this beautiful world.
We know what to do to protect our honor and integrity.
Just relax and be happy, if true.
With all my love,
Ninoy
2/4/874
Clarissa explained petitioner used an alias "Ninoy" and addressed
her as "Chris," probably because of their twenty-five (25)-year age
gap. In court, she identified petitioner’s penmanship which she
claims she was familiar with as an employee in his office.
Clarissa presented three other handwritten letters5 sent to her by
petitioner, two of which were in his letterhead as mayor of Pandan.
She also presented the pictures6 petitioner gave her of his youth and
as a public servant, all bearing his handwritten notations at the
back.
Clarissa avers that on March 3, 1987, petitioner, aware of her
pregnancy, handed her a letter and ₱2,000 pocket money to go to
Manila and to tell her parents that she would enroll in a CPA review
course or look for a job. In June 1987, petitioner went to see her in
Manila and gave her another ₱2,000 for her delivery. When her
parents learned of her pregnancy, sometime in July, her father
fetched her and brought her back to Pandan. On September 23,
1987,7 she gave birth to a baby girl, Verna Aiza Posada.
Clarissa’s mother, Francisca, corroborated Clarissa’s story. She said
they learned of their daughter’s pregnancy through her husband’s
cousin. She added that she felt betrayed by petitioner and shamed
by her daughter’s pregnancy.
The Posadas filed a Complaint for Damages coupled with
Support Pendente Lite before the RTC, Virac, Catanduanes against
petitioner on October 23, 1987.8
On January 4, 1995, the trial court issued a judgment in their favor,
the dispositive portion of which reads as follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered
in favor of the [respondents] and against the [petitioner] and
ordering the latter:
1. to pay a monthly support of ₱2,000.00 to Verna Aiza
Posada since her birth on September 23, 1987 as he was
 proved to be the natural father of the above-named minor
as shown by the exhibits and testimonies of the
[respondents];
2. to pay the amount of ₱30,000.00 as moral damages;
3. to pay the amount of ₱30,000.00 as exemplary damages;
4. to pay the sum of ₱10,000.00 as attorney’s fees; and
5. to pay the costs of the suit.
SO ORDERED.9
Verceles appealed to the Court of Appeals which affirmed the
judgment with modification, specifying the party to whom the
damages was awarded. The dispositive portion of the Court of
Appeals’ decision reads:
WHEREFORE, the appealed judgment is AFFIRMED with
modification by ordering [petitioner] Teofisto I. Verceles:
1. To pay a monthly support of ₱2,000.00 to Verna Aiza
Posada from her birth on September 23, 1987.
2. To pay [respondent] Maria Clarissa Posada the sum of
₱15,000.00 as moral damages and [P]15,000.00 as
exemplary damages.
3. To pay [respondents] spouses Constantino and Francisca
Posada the sum of ₱15,000.00 as moral damages and
₱15,000.00 as exemplary damages.
4. To pay each of the said three [respondents] ₱10,000.00
as attorney’s fees; and
5. To pay the costs of suit.
SO ORDERED.10
Hence, this petition.
Petitioner now presents the following issues for resolution:
I.
WAS THERE ANY EVIDENCE ON RECORD TO PROVE THAT APPELLANT
VERCELES WAS THE FATHER OF THE CHILD?
II.
WOULD THIS ACTION FOR DAMAGES PROSPER?
III.
WOULD THE RTC COURT HAVE ACQUIRED JURISDICTION OVER THIS
ISSUE OF APPELLANT’S PATERNITY OF THE CHILD, WHICH IS MADE
COLLATERAL TO THIS ACTION FOR DAMAGES?11
In sum, the pertinent issues in this case are: (1) whether or not
paternity and filiation can be resolved in an action for damages with
support pendente lite; (2) whether or not the filiation of Verna Aiza
Posada as the illegitimate child of petitioner was proven; and (3)
whether or not respondents are entitled to damages.
In his Memorandum, petitioner asserts that the fact of paternity and
filiation of Verna Aiza Posada has not been duly established or
proved in the proceedings; that the award for damages and
attorney’s fees has no basis; and that the issue of filiation should be
resolved in a direct and not a collateral action.
Petitioner argues he never signed the birth certificate of Verna Aiza
Posada as father and that it was respondent Clarissa who placed his
name on the birth certificate as father without his consent. He
further contends the alleged love letters he sent to Clarissa are not
admissions of paternity but mere expressions of concern and
advice.12 As to the award for damages, petitioner argues Clarissa
could not have suffered moral damages because she was in pari
delicto, being a willing participant in the "consensual carnal act"
between them.13 In support of his argument that the issue on
filiation should have been resolved in a separate action, petitioner
cited the case of Rosales v. Castillo Rosales14 where we held that the
legitimacy of a child which is controversial can only be resolved in a
direct action.15
On the other hand, respondents in their Memorandum maintain
that the Court of Appeals committed no error in its decision. They
reiterate that Clarissa’s clear narration of the circumstances on
"how she was deflowered" by petitioner, the love letters and
pictures given by petitioner to Clarissa, the corroborating testimony
of Clarissa’s mother, the fact that petitioner proffered no
countervailing evidence, are preponderant evidence of paternity.
They cited the case of De Jesus v. Syquia16 where we held that a
conceived child can be acknowledged because this is an act
favorable to the child.17 They also argue that damages should be
awarded because petitioner inveigled Clarissa to succumb to his
sexual advances.18
Could paternity and filiation be resolved in an action for damages?
On this score, we find petitioner’s stance unmeritorious. The caption
is not determinative of the nature of a pleading. In a string of cases
we made the following rulings. It is not the caption but the facts
alleged which give meaning to a pleading. Courts are called upon to
pierce the form and go into the substance thereof.19 In determining
the nature of an action, it is not the caption, but the averments in
the petition and the character of the relief sought, that are
controlling.20
A perusal of the Complaint before the RTC shows that although its
caption states "Damages coupled with Support Pendente Lite,"
Clarissa’s averments therein, her meeting with petitioner, his offer
of a job, his amorous advances, her seduction, their trysts, her
pregnancy, birth of her child, his letters, her demand for support for
her child, all clearly establish a case for recognition of paternity. We
have held that the due recognition of an illegitimate child in a record
of birth, a will, a statement before a court of record, or in any
authentic writing is, in itself, a consummated act of
acknowledgement of the child, and no further court action is
required. In fact, any authentic writing is treated not just a ground
for compulsory recognition; it is in itself a voluntary recognition that
does not require a separate action for judicial approval.21
The letters of petitioner marked as Exhibits "A" to "D" are
declarations that lead nowhere but to the conclusion that he sired
Verna Aiza. Although petitioner used an alias in these letters, the
similarity of the penmanship in these letters vis the annotation at
the back of petitioner’s fading photograph as a youth is
unmistakable. Even an inexperienced eye will come to the
conclusion that they were all written by one and the same person, testimonies, to us, are convincing, and irrefutable evidence that
petitioner, as found by the courts a quo. Verna Aiza is, indeed, petitioner’s illegitimate child.

We also note that in his Memorandum, petitioner admitted his
affair with Clarissa, the exchange of love letters between them, and
his giving her money during her pregnancy. 22
Articles 172 and 175 of the Family Code are the rules for
establishing filiation. They are as follows:
Art. 172. The filiation of legitimate children is established by any of
the following:
(1) The record of birth appearing in the civil register or a
final judgment; or
(2) An admission of legitimate filiation in a public document
or a private handwritten instrument and signed by the
parent concerned.
In the absence of the foregoing evidence, the legitimate filiation
shall be proved by:
Petitioner not only failed to rebut the evidence presented, he
himself presented no evidence of his own. His bare denials are
telling. Well-settled is the rule that denials, if unsubstantiated by
clear and convincing evidence, are negative and self-serving which
merit no weight in law and cannot be given greater evidentiary
value over the testimony of credible witnesses who testify on
affirmative matters.23
We, however, cannot rule that respondents are entitled to
damages. Article 221924of the Civil Code which states moral
damages may be recovered in cases of seduction is inapplicable in
this case because Clarissa was already an adult at the time she had
an affair with petitioner.
Neither can her parents be entitled to damages. Besides, there is
nothing in law or jurisprudence that entitles the parents of a
consenting adult who begets a love child to damages. Respondents
Constantino and Francisca Posada have not cited any law or
jurisprudence to justify awarding damages to them.

We, however, affirm the grant of attorney’s fees in consonance with

(1) The open and continuous possession of the status of a
Article 2208 (2)25 and (11)26 of the New Civil Code.
legitimate child; or

WHEREFORE, the assailed Decision dated May 30, 2003 and the
(2) Any other means allowed by the Rules of Court and
Resolution dated August 27, 2003 of the Court of Appeals in CA-G.R.
special laws.
CV No. 50557 are AFFIRMED, with the MODIFICATION that the
award of moral damages and exemplary damages be DELETED.
Art. 175. Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence as legitimate
SO ORDERED.
children.

The action must be brought within the same period specified in

Article 173, except when the action is based on the second
paragraph of Article 172, in which case the action may be brought
during the lifetime of the alleged parent.

The letters, one of which is quoted above, are private handwritten

instruments of petitioner which establish Verna Aiza’s filiation under
Article 172 (2) of the Family Code. In addition, the array of evidence
presented by respondents, the dates, letters, pictures and
THIRD DIVISION
G.R. No. 148311. March 31, 2005
IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY
ASTORGA GARCIA
HONORATO B. CATINDIG, petitioner.
DECISION
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 child Stephanie Nathy
Astorga Garcia. He alleged therein, among others, that Stephanie
was born on June 26, 1994;2that her mother is Gemma Astorga
Garcia; that Stephanie has been using her mother’s middle name
and surname; and that he is now a widower and qualified to be her
adopting parent. He prayed that Stephanie’s middle name Astorga
be changed to "Garcia," her mother’s 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
petitioner’s 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 petitioner’s 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 petitioner’s 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 mother’s 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 Stephanie’s 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.
xxx
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 and surname. 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 surname employed 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 mother’s 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 mother’s 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
child’s 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
father’s surname indicates the family to which he belongs, for
which reason he would insist on the use of the father’s 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 Caguioa’s 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 Enrile’s correct surname is Ponce since the mother’s surname
is Enrile but everybody calls him Atty. Enrile. Justice Jose Gutierrez
David’s family name is Gutierrez and his mother’s 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.
xxx
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.
xxx
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)
accorded to a legitimate child.15 It is a juridical act, a proceeding in relationship with her mother but will also eliminate the stigma of
rem which creates between two persons a relationship similar to her illegitimacy.
that which results from legitimate paternity and filiation. 16 The
modern trend is to consider adoption not merely as an act to Liberal Construction of
establish a relationship of paternity and filiation, but also as an act
which endows the child with a legitimate status.17 This was, indeed, Adoption Statutes In Favor Of
confirmed in 1989, when the Philippines, as a State Party to the
Convention of the Rights of the Child initiated by the United
Adoption –
Nations, accepted the principle that adoption is impressed with
social and moral responsibility, and that its underlying intent is
It is a settled rule that adoption statutes, being humane and
geared to favor the adopted child.18 Republic Act No. 8552,
salutary, should be liberally construed to carry out the beneficent
otherwise known as the "Domestic Adoption Act of 1998,"19 secures
purposes of adoption.25 The interests and welfare of the adopted
these rights and privileges for the adopted.20
child are of primary and paramount consideration, 26 hence, every
reasonable intendment should be sustained to promote and fulfill
One of the effects of adoption is that the adopted is deemed to be a
these noble and compassionate objectives of the law. 27
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
Lastly, Art. 10 of the New Civil Code provides that:
8552.23
"In case of doubt in the interpretation or application of laws, it is
Being a legitimate child by virtue of her adoption, it follows that
presumed that the lawmaking body intended right and justice to
Stephanie is entitled to all the rights provided by law to a
prevail."
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 This provision, according to the Code Commission, "is necessary so
members of the Civil Code and Family Law Committees as earlier that it may tip the scales in favor of right and justice when the law is
discussed. In fact, it is a Filipino custom that the initial or surname of doubtful or obscure. It will strengthen the determination of the
the mother should immediately precede the surname of the father. courts to avoid an injustice which may apparently be authorized by
some way of interpreting the law."28

In the case of an adopted child, the law provides that "the adopted
shall bear the surname of the adopters."13 Again, 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
Additionally, as aptly stated by both parties, Stephanie’s continued
use of her mother’s 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 mother’s surname as
her middle name will not only sustain her continued loving
Hence, since there is no law prohibiting an illegitimate
child adopted by her natural father, like Stephanie, to use, as middle
name her mother’s 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 mother’s 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.
FIRST DIVISION
G.R. Nos. 168992-93 May 21, 2009
IN RE: PETITION FOR ADOPTION OF MICHELLE P. LIM,
MONINA P. LIM, Petitioner.
x - - - - - - - - - - - - - - - - - - - - - - -x
IN RE: PETITION FOR ADOPTION OF MICHAEL JUDE P. LIM,
MONINA P. LIM, Petitioner.
DECISION
CARPIO, J.:
The Case
This is a petition for review on certiorari filed by Monina P. Lim
(petitioner) seeking to set aside the Decision1 dated 15 September
2004 of the Regional Trial Court, General Santos City, Branch 22
(trial court), in SPL. PROC. Case Nos. 1258 and 1259, which
dismissed without prejudice the consolidated petitions for adoption
of Michelle P. Lim and Michael Jude P. Lim.
The Facts
The following facts are undisputed. Petitioner is an optometrist by
profession. On 23 June 1974, she married Primo Lim (Lim). They
were childless. Minor children, whose parents were unknown, were
entrusted to them by a certain Lucia Ayuban (Ayuban). Being so
eager to have a child of their own, petitioner and Lim registered the
children to make it appear that they were the children’s parents.
The children2 were named Michelle P. Lim (Michelle) and Michael
Jude P. Lim (Michael). Michelle was barely eleven days old when
brought to the clinic of petitioner. She was born on 15 March
1977.3 Michael was 11 days old when Ayuban brought him to
petitioner’s clinic. His date of birth is 1 August 1983.4
The spouses reared and cared for the children as if they were their which the husband, who was not even made a party in this case,
own. They sent the children to exclusive schools. They used the must comply.
surname "Lim" in all their school records and documents.
Unfortunately, on 28 November 1998, Lim died. On 27 December As to the argument that the adoptees are already emancipated and
2000, petitioner married Angel Olario (Olario), an American citizen. joint adoption is merely for the joint exercise of parental authority,
the trial court ruled that joint adoption is not only for the purpose of
Thereafter, petitioner decided to adopt the children by availing of exercising parental authority because an emancipated child acquires
the amnesty5 given under Republic Act No. 85526(RA 8552) to those certain rights from his parents and assumes certain obligations and
individuals who simulated the birth of a child. Thus, on 24 April responsibilities.
2002, petitioner filed separate petitions for the adoption of Michelle
and Michael before the trial court docketed as SPL PROC. Case Nos. Hence, the present petition.
1258 and 1259, respectively. At the time of the filing of the petitions
for adoption, Michelle was 25 years old and already married, while Issue
Michael was 18 years and seven months old.
Petitioner appealed directly to this Court raising the sole issue of
Michelle and her husband gave their consent to the adoption as whether or not petitioner, who has remarried, can singly adopt.
evidenced by their Affidavits of Consent.7 Michael also gave his
consent to his adoption as shown in his Affidavit of
The Court’s Ruling
Consent.8 Petitioner’s husband Olario likewise executed an Affidavit
of Consent9 for the adoption of Michelle and Michael.
Petitioner contends that the rule on joint adoption must be relaxed
because it is the duty of the court and the State to protect the
In the Certification issued by the Department of Social Welfare and
paramount interest and welfare of the child to be adopted.
Development (DSWD), Michelle was considered as an abandoned
Petitioner argues that the legal maxim "dura lex sed lex" is not
child and the whereabouts of her natural parents were
applicable to adoption cases. She argues that joint parental
unknown.10 The DSWD issued a similar Certification for Michael.11
authority is not necessary in this case since, at the time the petitions
were filed, Michelle was 25 years old and already married, while
The Ruling of the Trial Court Michael was already 18 years of age. Parental authority is not
anymore necessary since they have been emancipated having
On 15 September 2004, the trial court rendered judgment attained the age of majority.
dismissing the petitions. The trial court ruled that since petitioner
had remarried, petitioner should have filed the petition jointly with We deny the petition.
her new husband. The trial court ruled that joint adoption by the
husband and the wife is mandatory citing Section 7(c), Article III of
Joint Adoption by Husband and Wife
RA 8552 and Article 185 of the Family Code.
It is undisputed that, at the time the petitions for adoption were
Petitioner filed a Motion for Reconsideration of the decision but the
filed, petitioner had already remarried. She filed the petitions by
motion was denied in the Order dated 16 June 2005. In denying the
herself, without being joined by her husband Olario. We have no
motion, the trial court ruled that petitioner did not fall under any of
other recourse but to affirm the trial court’s decision denying the
the exceptions under Section 7(c), Article III of RA 8552. Petitioner’s
petitions for adoption. Dura lex sed lex. The law is explicit. Section 7,
argument that mere consent of her husband would suffice was
Article III of RA 8552 reads:
untenable because, under the law, there are additional
requirements, such as residency and certification of his qualification,
SEC. 7. Who May Adopt. - The following may adopt:
(a) Any Filipino citizen of legal age, in possession of full civil Husband and wife shall jointly adopt, except in the must meet the qualifications set forth in Section 7 of RA 8552 such
capacity and legal rights, of good moral character, has not following cases: as: (1) he must prove that his country has diplomatic relations with
been convicted of any crime involving moral turpitude, the Republic of the Philippines; (2) he must have been living in the
emotionally and psychologically capable of caring for (i) if one spouse seeks to adopt the legitimate Philippines for at least three continuous years prior to the filing of
children, at least sixteen (16) years older than the adoptee, son/daughter of the other; or the application for adoption; (3) he must maintain such residency
and who is in a position to support and care for his/her until the adoption decree is entered; (4) he has legal capacity to
children in keeping with the means of the family. The (ii) if one spouse seeks to adopt his/her own adopt in his own country; and (5) the adoptee is allowed to enter
requirement of sixteen (16) year difference between the illegitimate son/daughter: Provided, however, That the adopter’s country as the latter’s adopted child. None of these
age of the adopter and adoptee may be waived when the the other spouse has signified his/her consent qualifications were shown and proved during the trial.
adopter is the biological parent of the adoptee, or is the thereto; or
spouse of the adoptee’s parent; These requirements on residency and certification of the alien’s
(iii) if the spouses are legally separated from each qualification to adopt cannot likewise be waived pursuant to Section
(b) Any alien possessing the same qualifications as above other. 7. The children or adoptees are not relatives within the fourth
stated for Filipino nationals: Provided, That his/her country degree of consanguinity or affinity of petitioner or of Olario. Neither
has diplomatic relations with the Republic of the are the adoptees the legitimate children of petitioner.
In case husband and wife jointly adopt, or one spouse adopts the
Philippines, that he/she has been living in the Philippines
illegitimate son/daughter of the other, joint parental authority shall
for at least three (3) continuous years prior to the filing of Effects of Adoption
be exercised by the spouses. (Emphasis supplied)
the application for adoption and maintains such residence
until the adoption decree is entered, that he/she has been Petitioner contends that joint parental authority is not anymore
The use of the word "shall" in the above-quoted provision means
certified by his/her diplomatic or consular office or any necessary since the children have been emancipated having reached
that joint adoption by the husband and the wife is mandatory. This
appropriate government agency that he/she has the legal the age of majority. This is untenable.
is in consonance with the concept of joint parental authority over
capacity to adopt in his/her country, and that his/her
the child which is the ideal situation. As the child to be adopted is
government allows the adoptee to enter his/her country as
elevated to the level of a legitimate child, it is but natural to require Parental authority includes caring for and rearing the children for
his/her adopted son/daughter: Provided, further, That the
the spouses to adopt jointly. The rule also insures harmony between civic consciousness and efficiency and the development of their
requirements on residency and certification of the alien’s
the spouses.12 moral, mental and physical character and well-being.13 The father
qualification to adopt in his/her country may be waived for
and the mother shall jointly exercise parental authority over the
the following:
The law is clear. There is no room for ambiguity. Petitioner, having persons of their common children.14 Even the remarriage of the
remarried at the time the petitions for adoption were filed, must surviving parent shall not affect the parental authority over the
(i) a former Filipino citizen who seeks to adopt a children, unless the court appoints another person to be the
jointly adopt. Since the petitions for adoption were filed only by
relative within the fourth (4th) degree of guardian of the person or property of the children.15
petitioner herself, without joining her husband, Olario, the trial
consanguinity or affinity; or
court was correct in denying the petitions for adoption on this
ground. It is true that when the child reaches the age of emancipation —
(ii) one who seeks to adopt the legitimate that is, when he attains the age of majority or 18 years of age 16 —
son/daughter of his/her Filipino spouse; or emancipation terminates parental authority over the person and
Neither does petitioner fall under any of the three exceptions
enumerated in Section 7. First, the children to be adopted are not property of the child, who shall then be qualified and responsible for
(iii) one who is married to a Filipino citizen and all acts of civil life.17 However, parental authority is merely just one
the legitimate children of petitioner or of her husband Olario.
seeks to adopt jointly with his/her spouse a of the effects of legal adoption. Article V of RA 8552 enumerates the
Second, the children are not the illegitimate children of petitioner.
relative within the fourth (4th) degree of effects of adoption, thus:
And third, petitioner and Olario are not legally separated from each
consanguinity or affinity of the Filipino spouses; or
other.
ARTICLE V
(c) The guardian with respect to the ward after the EFFECTS OF ADOPTION
The fact that Olario gave his consent to the adoption as shown in his
termination of the guardianship and clearance of his/her
Affidavit of Consent does not suffice. There are certain
financial accountabilities.
requirements that Olario must comply being an American citizen. He
SEC. 16. Parental Authority. - Except in cases where the biological
parent is the spouse of the adopter, all legal ties between the
biological parent(s) and the adoptee shall be severed and the same
shall then be vested on the adopter(s).
SEC. 17. Legitimacy. - The adoptee shall be considered the
legitimate son/daughter of the adopter(s) for all intents and
purposes and as such is entitled to all the rights and obligations
provided by law to legitimate sons/daughters born to them without
discrimination of any kind. To this end, the adoptee is entitled to
love, guidance, and support in keeping with the means of the family.
SEC. 18. Succession. - In legal and intestate succession, the
adopter(s) and the adoptee shall have reciprocal rights of succession
without distinction from legitimate filiation. However, if the adoptee
and his/her biological parent(s) had left a will, the law on
testamentary succession shall govern.
Adoption has, thus, the following effects: (1) sever all legal ties
between the biological parent(s) and the adoptee, except when the
biological parent is the spouse of the adopter; (2) deem the adoptee
as a legitimate child of the adopter; and (3) give adopter and
adoptee reciprocal rights and obligations arising from the
relationship of parent and child, including but not limited to: (i) the
right of the adopter to choose the name the child is to be known;
and (ii) the right of the adopter and adoptee to be legal and
compulsory heirs of each other.18 Therefore, even if emancipation
terminates parental authority, the adoptee is still considered a
legitimate child of the adopter with all the rights19 of a legitimate
child such as: (1) to bear the surname of the father and the mother;
(2) to receive support from their parents; and (3) to be entitled to
the legitime and other successional rights. Conversely, the adoptive
parents shall, with respect to the adopted child, enjoy all the
benefits to which biological parents are entitled20 such as
support21 and successional rights.22
We are mindful of the fact that adoption statutes, being humane
and salutary, hold the interests and welfare of the child to be of
paramount consideration. They are designed to provide homes,
parental care and education for unfortunate, needy or orphaned
children and give them the protection of society and family, as well
as to allow childless couples or persons to experience the joys of
parenthood and give them legally a child in the person of the
adopted for the manifestation of their natural parental instincts. SO ORDERED.
Every reasonable intendment should be sustained to promote and
fulfill these noble and compassionate objectives of the law. 23 But, as
we have ruled in Republic v. Vergara:24
We are not unmindful of the main purpose of adoption statutes,
which is the promotion of the welfare of the children. Accordingly,
the law should be construed liberally, in a manner that will sustain
rather than defeat said purpose. The law must also be applied with
compassion, understanding and less severity in view of the fact that
it is intended to provide homes, love, care and education for less
fortunate children. Regrettably, the Court is not in a position to
affirm the trial court’s decision favoring adoption in the case at
bar, for the law is clear and it cannot be modified without violating
the proscription against judicial legislation. Until such time
however, that the law on the matter is amended, we cannot sustain
the respondent-spouses’ petition for adoption. (Emphasis
supplied)1avvphi1.zw+
Petitioner, being married at the time the petitions for adoption
were filed, should have jointly filed the petitions with her husband.
We cannot make our own legislation to suit petitioner.
Petitioner, in her Memorandum, insists that subsequent events
would show that joint adoption could no longer be possible because
Olario has filed a case for dissolution of his marriage to petitioner in
the Los Angeles Superior Court.
We disagree. The filing of a case for dissolution of the marriage
between petitioner and Olario is of no moment. It is not equivalent
to a decree of dissolution of marriage. Until and unless there is a
judicial decree for the dissolution of the marriage between
petitioner and Olario, the marriage still subsists. That being the case,
joint adoption by the husband and the wife is required. We reiterate
our ruling above that since, at the time the petitions for adoption
were filed, petitioner was married to Olario, joint adoption is
mandatory.
WHEREFORE, we DENY the petition. We AFFIRM the Decision dated
15 September 2004 of the Regional Trial Court, General Santos City,
Branch 22 in SPL. PROC. Case Nos. 1258 and 1259. Costs against
petitioner.
FIRST DIVISION
G.R. No. 125041 June 30, 2006
MA. BELEN B. MANGONON, for and in behalf of her minor children
REBECCA ANGELA DELGADO and REGINA ISABEL
DELGADO. Petitioner,
vs.
HON. COURT OF APPEALS, HON. JUDGE JOSEFINA GUEVARA-
SALONGA, Presiding Judge, RTC-Makati, Branch 149, FEDERICO C.
DELGADO and FRANCISCO C. DELGADO, Respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a Petition for Review on Certiorari assailing the
Decision1 of the Court of Appeals dated 20 March 1996, affirming
the Order, dated 12 September 19952 of the Regional Trial Court
(RTC), Branch 149, Makati, granting support pendente lite to
Rebecca Angela (Rica) and Regina Isabel (Rina), both surnamed
Delgado.
The generative facts leading to the filing of the present petition are
as follows:
On 17 March 1994, petitioner Ma. Belen B. Mangonon filed, in
behalf of her then minor children Rica and Rina, a Petition for
Declaration of Legitimacy and Support, with application for support
pendente lite with the RTC Makati.3In said petition, it was alleged
that on 16 February 1975, petitioner and respondent Federico
Delgado were civilly married by then City Court Judge Eleuterio
Agudo in Legaspi City, Albay. At that time, petitioner was only 21
years old while respondent Federico was only 19 years old. As the
marriage was solemnized without the required consent per Article
85 of the New Civil Code,4 it was annulled on 11 August 1975 by the
Quezon City Juvenile and Domestic Relations Court.5
On 25 March 1976, or within seven months after the annulment of
their marriage, petitioner gave birth to twins Rica and Rina.
According to petitioner, she, with the assistance of her second
husband Danny Mangonon, raised her twin daughters as private
respondents had totally abandoned them. At the time of the
institution of the petition, Rica and Rina were about to enter college
in the United States of America (USA) where petitioner, together
with her daughters and second husband, had moved to and finally
settled in. Rica was admitted to the University of Massachusetts
(Amherst) while Rina was accepted by the Long Island University
and Western New England College. Despite their admissions to said
universities, Rica and Rina were, however, financially incapable of
pursuing collegiate education because of the following:
i) The average annual cost for college education in the US is
about US$22,000/year, broken down as follows:
Tuition Fees US$13,000.00
Room & Board 5,000.00
Books 1,000.00
Yearly Transportation &
Meal Allowance 3,000.00
Total US$ 22,000.00
or a total of US$44,000.00, more or less, for both
Rica and Rina
ii) Additionally, Rica and Rina need general maintenance
support each in the amount of US$3,000.00 per year or a
total of US$6,000 per year.
iii) Unfortunately, petitioner’s monthly income from her 2
jobs is merely US$1,200 after taxes which she can hardly
give general support to Rica and Rina, much less their
required college educational support.
iv) Neither can petitioner’s present husband be compelled
to share in the general support and college education of
Rica and Rina since he has his own son with petitioner and
own daughter (also in college) to attend to.
v) Worse, Rica and Rina’s petitions for Federal Student Aid
have been rejected by the U.S. Department of Education.6
Petitioner likewise averred that demands7 were made upon
Federico and the latter’s father, Francisco,8 for general support and
for the payment of the required college education of Rica and Rina.
The twin sisters even exerted efforts to work out a settlement
concerning these matters with respondent Federico and respondent
Francisco, the latter being generally known to be financially well-
off.9 These demands, however, remained unheeded. Considering
the impending deadline for admission to college and the opening of
classes, petitioner and her then minor children had no choice but to
file the petition before the trial court.
Petitioner also alleged that Rica and Rina are her legitimate
daughters by respondent Federico since the twin sisters were born
within seven months from the date of the annulment of her
marriage to respondent Federico. However, as respondent Federico
failed to sign the birth certificates of Rica and Rina, it was imperative
that their status as legitimate children of respondent Federico, and
as granddaughters of respondent Francisco, be judicially declared
pursuant to Article 173 of the Family Code.10
As legitimate children and grandchildren, Rica and Rina are entitled
to general and educational support under Articles 17411 and
195(b)12 in relation to Articles 194(1 and 2)13 and 199(c)14 of the
Family Code. Petitioner alleged that under these provisions, in case
of default on the part of the parents, the obligation to provide
support falls upon the grandparents of the children; thus,
respondent Federico, or in his default, respondent Francisco should
be ordered to provide general and educational support for Rica and
Rina in the amount of US$50,000.00, more or less, per year.
Petitioner also claimed that she was constrained to seek support
pendente lite from private respondents - who are millionaires with
extensive assets both here and abroad - in view of the imminent
opening of classes, the possibility of a protracted litigation, and Rica
and Rina’s lack of financial means to pursue their college education
in the USA.
In his Answer,15 respondent Francisco stated that as the birth
certificates of Rica and Rina do not bear the signature of respondent
Federico, it is essential that their legitimacy be first established as
"there is no basis to claim support until a final and executory judicial
declaration has been made as to the civil status of the
children."16 Whatever good deeds he may have done to Rica and
Rina, according to respondent Francisco, was founded on pure acts
of Christian charity. He, likewise, averred that the order of liability
for support under Article 199 of the Family Code is not concurrent
such that the obligation must be borne by those more closely
related to the recipient. In this case, he maintained that
responsibility should rest on the shoulders of petitioner and her
second husband, the latter having voluntarily assumed the duties
and responsibilities of a natural father. Even assuming that he is
responsible for support, respondent Francisco contends that he
could not be made to answer beyond what petitioner and the father
could afford.
On 24 May 1994, petitioner filed a Motion to Declare Defendant
(respondent herein) Federico in Default.17 This was favorably acted
upon by the trial court in the Order dated 16 June 1994.18
On 5 August 1994, respondent Federico filed a Motion to Lift Order
of Default alleging that the summons and a copy of the petition
were not served in his correct address.19 Attached thereto was his
Answer20 where he claimed that petitioner had no cause of action
against him. According to him, he left for abroad and stayed there
for a long time "[w]ithin the first one hundred twenty (120) days of
the three hundred days immediately preceding March 25, 1976" and
that he only came to know about the birth of Rica and Rina when
the twins introduced themselves to him seventeen years later. In
order not to antagonize the two, respondent Federico claimed he
did not tell them that he could not be their father. Even assuming
that Rica and Rina are, indeed, his daughters, he alleged that he
could not give them the support they were demanding as he was
only making P40,000.00 a month.
Finding sufficient ground in the motion filed by respondent
Federico, the trial court lifted its Order dated 16 June 1994 and
admitted his Answer.21
In the meantime, on 25 April 1994, petitioner filed an Urgent
Motion to Set Application for Support Pendente Lite for Hearing
because Rica and Rina both badly needed immediate financial
resources for their education.22 This Motion was opposed by
respondent Francisco.23 After both parties submitted supplemental
pleadings to bolster their respective positions, the trial court
resolved the motion in an Order dated 12 September 1995 in this
wise:
WHEREFORE, in the light of the foregoing considerations,
respondents are hereby directed to provide a monthly support
(pendente lite) of P5,000.00 each or a total of P10,000.00 for the
education of Rebecca Angela and Regina Isabel Delgado to be
delivered within the first five days of each month without need of
demand.24
Unsatisfied with the Order of the trial court, petitioner brought the
case to the Court of Appeals via Petition for Certiorari. The Court of
Appeals affirmed the holding of the trial court and disposed the
petition in the following manner:
WHEREFORE, the petition for certiorari is hereby DISMISSED and the
Order of the lower court dated September 12, 1995 is hereby
AFFIRMED.25
Petitioner’s Motion for Reconsideration was denied through the
Resolution of the Court of Appeals dated 16 May 1996.26
Petitioner is now before this Court claiming that the Decision of the
Court of Appeals was tainted with the following errors:
RESPONDENT COURT OF APPEALS ERRED IN CONCLUDING THAT
RESPONDENT JUDGE DID NOT COMMIT GRAVE ABUSE OF
DISCRETION IN FIXING THE AMOUNT OF MONTHLY SUPPORT
PENDENTE LITE GRANTED TO PETITIONER’S CHILDREN AT A
MEASLEY P5,000.00 PER CHILD.
I.
RESPONDENT COURT IGNORED EVIDENCE ON RECORD OF THE
FINANCIAL INCAPACITY OF RICA AND RINA’S PARENTS IN DEFAULT
OF WHOM THE OBLIGATION TO GIVE SUPPORT DEVOLVES ON THE
GRANDFATHER.
II.
IT BEING ESTABLISHED THAT THE PERSON OBLIGED TO GIVE
SUPPORT – GRANDFATHER DON PACO – IS UNDOUBTEDLY CAPABLE
OF GIVING THE AMOUNT DEMANDED, RESPONDENT COURT ERRED
IN NOT HOLDING THAT RESPONDENT JUDGE ACTED WITH GRAVE
ABUSE OF DISCRETION IN FIXING AN AMOUNT OF SUPPORT
PENDENTE LITE THAT IS OBVIOUSLY INADEQUATE TO SUPPORT THE
EDUCATIONAL REQUIREMENTS OF THE RECIPIENTS. 27
At the time of the filing of the present Petition, it is alleged that Rica
had already entered Rutgers University in New Jersey with a budget
of US$12,500.00 for academic year 1994-1995. She was able to
obtain a tuition fee grant of US$1,190.00 and a Federal Stafford loan
from the US government in the amount of US$2,615.00. 28 In order
to defray the remaining balance of Rica’s education for said school
year, petitioner claims that she had to secure a loan under the
Federal Direct Student Loan Program.
Meanwhile, Rina entered CW Post, Long Island University, where
she was expected to spend US$20,000.00 for the school year 1994-
1995. She was given a financial grant of US$6,000.00, federal work
study assistance of US$2,000.00, and a Federal Stafford loan of
US$2,625.00.29 Again, petitioner obtained a loan to cover the
remainder of Rina’s school budget for the year.
Petitioner concedes that under the law, the obligation to furnish
support to Rica and Rina should be first imposed upon their parents.
She contends, however, that the records of this case demonstrate
her as well as respondent Federico’s inability to give the support
needed for Rica and Rina’s college education. Consequently, the
obligation to provide support devolves upon respondent Francisco
being the grandfather of Rica and Rina.
Petitioner also maintains that as respondent Francisco has the
financial resources to help defray the cost of Rica and Rina’s
schooling, the Court of Appeals then erred in sustaining the trial
court’s Order directing respondent Federico to pay Rica and Rina the
amount of award P5,000.00 each as monthly support pendente lite.
On the other hand, respondent Francisco argues that the trial court
correctly declared that petitioner and respondent Federico should
be the ones to provide the support needed by their twin daughters
pursuant to Article 199 of the Family Code. He also maintains that
aside from the financial package availed of by Rica and Rina in the
form of state tuition aid grant, work study program and federal
student loan program, petitioner herself was eligible for, and had
availed herself of, the federal parent loan program based on her
income and properties in the USA. He, likewise, insists that
assuming he could be held liable for support, he has the option to
fulfill the obligation either by paying the support or receiving and
maintaining in the dwelling here in the Philippines the person
claiming support.30 As an additional point to be considered by this
Court, he posits the argument that because petitioner and her twin
daughters are now US citizens, they cannot invoke the Family Code
provisions on support as "[l]aws relating to family rights and duties,
or to the status, condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living abroad."31
Respondent Federico, for his part, continues to deny having sired
Rica and Rina by reiterating the grounds he had previously raised
before the trial court. Like his father, respondent Federico argues
that assuming he is indeed the father of the twin sisters, he has the
option under the law as to how he would provide support. Lastly, he
assents with the declaration of the trial court and the Court of
Appeals that the parents of a child should primarily bear the burden
of providing support to their offspring.
The petition is meritorious.
As a preliminary matter, we deem it necessary to briefly discuss the
essence of support pendente lite. The pertinent portion of the Rules
of Court on the matter provides:
Rule 61
SUPPORT ‘PENDENTE LITE’
SECTION 1. Application.- At the commencement of the proper action
or proceeding, or at any time prior to the judgment or final order, a
verified application for support pendente lite may be filed by any
party stating the grounds for the claim and the financial conditions
of both parties, and accompanied by affidavits, depositions or other
authentic documents in support thereof.
xxxx
SEC. 4. Order.- The court shall determine provisionally the pertinent
facts, and shall render such orders as justice and equity may require,
having due regard to the probable outcome of the case and such
other circumstances as may aid in the proper resolution of the
question involved. If the application is granted, the court shall fix
the amount of money to be provisionally paid or such other forms of
support as should be provided, taking into account the necessities of
the applicant and the resources or means of the adverse party, and
the terms of payment or mode for providing the support. If the
application is denied, the principal case shall be tried and decided as
early as possible.
Under this provision, a court may temporarily grant support
pendente lite prior to the rendition of judgment or final order.
Because of its provisional nature, a court does not need to delve
fully into the merits of the case before it can settle an application
for this relief. All that a court is tasked to do is determine the kind
and amount of evidence which may suffice to enable it to justly
resolve the application. It is enough that the facts be established by
affidavits or other documentary evidence appearing in the
record.32lavvphi1.net
After the hearings conducted on this matter as well as the evidence
presented, we find that petitioner was able to establish, by prima
facie proof, the filiation of her twin daughters to private
respondents and the twins’ entitlement to support pendente lite. In
the words of the trial court –
By and large, the status of the twins as children of Federico cannot
be denied. They had maintained constant communication with their
grandfather Francisco. As a matter of fact, respondent Francisco
admitted having wrote several letters to Rica and Rina (Exhs. A, B, C,
D, E, F, G, G-1 to G-30). In the said letters, particularly at the bottom
thereof, respondent Francisco wrote the names of Rica and
Rina Delgado. He therefore was very well aware that they bear the
surname Delgado. Likewise, he referred to himself in his letters as
either "Lolo Paco" or "Daddy Paco." In his letter of October 13, 1989
(Exh. G-21), he said "as the grandfather, am extending a financial
help of US$1,000.00." On top of this, respondent Federico even gave
the twins a treat to Hongkong during their visit to the Philippines.
Indeed, respondents, by their actuations, have shown beyond doubt
that the twins are the children of Federico. 33
Having addressed the issue of the propriety of the trial court’s grant
of support pendente lite in favor of Rica and Rina, the next question
is who should be made liable for said award.
The pertinent provision of the Family Code on this subject states:
ART. 199. Whenever two or more persons are obliged to give
support, the liability shall devolve upon the following persons in the
order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters.
An eminent author on the subject explains that the obligation to
give support rests principally on those more closely related to the
recipient. However, the more remote relatives may be held to
shoulder the responsibility should the claimant prove that those
who are called upon to provide support do not have the means to
do so.34
In this case, both the trial court and the Court of Appeals held
respondent Federico liable to provide monthly support pendente
lite in the total amount of P10,000.00 by taking into consideration
his supposed income of P30,000.00 to P40,000.00 per month. We
are, however, unconvinced as to the veracity of this ground relied
upon by the trial court and the Court of Appeals.
It is a basic procedural edict that questions of fact cannot be the
proper subject of a petition for review under Rule 45 of the 1997
Rules of Civil Procedure. The rule finds a more stringent application
where the Court of Appeals upholds the findings of fact of the trial
court; in such a situation, this Court, as the final arbiter, is generally
bound to adopt the facts as determined by the appellate and the
lower courts. This rule, however, is not ironclad as it admits of the
following recognized exceptions: "(1) when the findings are
grounded entirely on speculation, surmises or conjectures; (2) when
the inference made is manifestly mistaken, absurd or impossible; (3)
when there is grave abuse of discretion; (4) when the judgment is
based on a misapprehension of facts; (5) when the findings of facts
are conflicting; (6) when in making its findings the Court of Appeals
went beyond the issues of the case, or its findings are contrary to
the admissions of both the appellant and the appellee; (7) when the
findings are contrary to that of the trial court; (8) when the findings
are conclusions without citation of specific evidence on which they
are based; (9) when the facts set forth in the petition as well as in
the petitioner’s main and reply briefs are not disputed by the
respondent; (10) when the findings of fact are premised on the
supposed absence of evidence and contradicted by the evidence on
record; and (11) when the Court of Appeals manifestly overlooked
certain relevant facts not disputed by the parties, which, if properly
considered, would justify a different conclusion."35 The case at bar
falls within the seventh and eleventh exceptions.
The trial court gave full credence to respondent Federico’s
allegation in his Answer36 and his testimony37 as to the amount of
his income. We have, however, reviewed the records of this case
and found them bereft of evidence to support his assertions
regarding his employment and his earning. Notably, he was even
required by petitioner’s counsel to present to the court his income
tax return and yet the records of this case do not bear a copy of said
document.38 This, to our mind, severely undermines the truthfulness
of respondent Federico’s assertion with respect to his financial
status and capacity to provide support to Rica and Rina.
In addition, respondent Francisco himself stated in the witness
stand that as far as he knew, his son, respondent Federico did not
own anything –
"Atty. Lopez:
I have here another letter under the letter head of Mr. & Mrs. Dany
Mangonon, dated October 19, 1991 addressed to Mr. Francisco
Delgado signed by "sincerely, Danny Mangonon, can you
remember."
xxxx
WITNESS:
A: I do remember this letter because it really irritated me so much
that I threw it away in a waste basket. It is a very demanding letter,
that is what I do not like at all.
ATTY. LOPEZ:
Q: It is stated in this letter that "I am making this request to you and
not to your son, Rico, for reasons we both are aware of." Do you
know what reason that is?
A: Yes. The reason is that my son do not have fix employment and
do not have fix salary and income and they want to depend on the
lolo.
x x x xlavvphi1.net
Q: Would you have any knowledge if Federico owns a house and
lot?
A: Not that I know. I do not think he has anything.
Q: How about a car?
A: Well, his car is owned by my company.39
Respondent Federico himself admitted in court that he had no
property of his own, thus:
Q: You also mentioned that you are staying at Mayflower Building
and you further earlier testified that this building belongs to Citadel
Corporation. Do you confirm that?
A: Yes, sir.
Q: What car are you driving, Mr. Witness?
A: I am driving a lancer, sir.
Q: What car, that registered in the name of the corporation?
A: In the corporation, sir.
Q: What corporation is that?
A: Citadel Commercial, Inc., sir.
Q: What properties, if any, are registered in your name, do you have
any properties, Mr. Witness?
A: None, sir."40 (Emphasis supplied.)
Meanwhile, respondent Francisco asserts that petitioner possessed
the capacity to give support to her twin daughters as she has gainful
employment in the USA. He even went as far as to state that
petitioner’s income abroad, when converted to Philippine peso, was
much higher than that received by a trial court judge here in the
Philippines. In addition, he claims that as she qualified for the
federal parent loan program, she could very well support the college
studies of her daughters.
We are unconvinced. Respondent Francisco’s assertion that
petitioner had the means to support her daughters’ education is
belied by the fact that petitioner was even forced by her financial
status in the USA to secure the loan from the federal government. If
petitioner were really making enough money abroad, she certainly
would not have felt the need to apply for said loan. The fact that
petitioner was compelled to take out a loan is enough indication
that she did not have enough money to enable her to send her
daughters to college by herself. Moreover, even Rica and Rina
themselves were forced by the circumstances they found
themselves in to secure loans under their names so as not to delay
their entrance to college.
There being prima facie evidence showing that petitioner and
respondent Federico are the parents of Rica and Rina, petitioner and
respondent Federico are primarily charged to support their
children’s college education. In view however of their incapacities,
the obligation to furnish said support should be borne by
respondent Francisco. Under Article 199 of the Family Code,
respondent Francisco, as the next immediate relative of Rica and
Rina, is tasked to give support to his granddaughters in default of
their parents. It bears stressing that respondent Francisco is the
majority stockholder and Chairman of the Board of Directors of
Citadel Commercial, Incorporated, which owns and manages twelve
gasoline stations, substantial real estate, and is engaged in shipping,
brokerage and freight forwarding. He is also the majority
stockholder and Chairman of the Board of Directors of Citadel
Shipping which does business with Hyundai of Korea. Apart from
these, he also owns the Citadel Corporation which, in turn, owns
real properties in different parts of the country. He is likewise the
Chairman of the Board of Directors of Isla Communication Co. and
he owns shares of stocks of Citadel Holdings. In addition, he owns
real properties here and abroad.41 It having been established that
respondent Francisco has the financial means to support his
granddaughters’ education, he, in lieu of petitioner and respondent
Federico, should be held liable for support pendente lite.
Anent respondent Francisco and Federico’s claim that they have the
option under the law as to how they could perform their obligation
to support Rica and Rina, respondent Francisco insists that Rica and
Rina should move here to the Philippines to study in any of the local
universities. After all, the quality of education here, according to
him, is at par with that offered in the USA. The applicable provision
of the Family Code on this subject provides:
Art. 204. The person obliged to give support shall have the option to
fulfill the obligation either by paying the allowance fixed, or by
receiving and maintaining in the family dwelling the person who has
a right to receive support. The latter alternative cannot be availed of
in case there is a moral or legal obstacle thereto.
Under the abovecited provision, the obligor is given the choice as to
how he could dispense his obligation to give support. Thus, he may
give the determined amount of support to the claimant or he may
allow the latter to stay in the family dwelling. The second option
cannot be availed of in case there are circumstances, legal or moral,
which should be considered.
In this case, this Court believes that respondent Francisco could not
avail himself of the second option. From the records, we gleaned
that prior to the commencement of this action, the relationship
between respondent Francisco, on one hand, and petitioner and her
twin daughters, on the other, was indeed quite pleasant. The
correspondences exchanged among them expressed profound
feelings of thoughtfulness and concern for one another’s well-being.
The photographs presented by petitioner as part of her exhibits
presented a seemingly typical family celebrating kinship. All of
these, however, are now things of the past. With the filing of this
case, and the allegations hurled at one another by the parties, the with the trial of the main case and the immediate resolution of the
relationships among the parties had certainly been affected. same with deliberate dispatch. The RTC Judge, Branch 149, Makati,
Particularly difficult for Rica and Rina must be the fact that those is further directed to submit a report of his compliance with the
who they had considered and claimed as family denied having any directive regarding the support pendente lite within ten (10) days
familial relationship with them. Given all these, we could not see from compliance thereof.
Rica and Rina moving back here in the Philippines in the company of
those who have disowned them. SO ORDERED.
Finally, as to the amount of support pendente lite, we take our
bearings from the provision of the law mandating the amount of
support to be proportionate to the resources or means of the giver
and to the necessities of the recipient.42 Guided by this principle, we
hold respondent Francisco liable for half of the amount of school
expenses incurred by Rica and Rina as support pendente lite. As
established by petitioner, respondent Francisco has the financial
resources to pay this amount given his various business endeavors.
Considering, however, that the twin sisters may have already been
done with their education by the time of the promulgation of this
decision, we deem it proper to award support pendente lite in
arrears43 to be computed from the time they entered college until
they had finished their respective studies.
The issue of the applicability of Article 15 of the Civil Code on
petitioner and her twin daughters raised by respondent Francisco is
best left for the resolution of the trial court. After all, in case it
would be resolved that Rica and Rina are not entitled to support
pendente lite, the court shall then order the return of the amounts
already paid with legal interest from the dates of actual payment.44
WHEREFORE, premises considered, this Petition is PARTIALLY
GRANTED. The Decision of the Court of Appeals dated 20 March
1996 and Resolution dated 16 May 1996 affirming the Order dated
12 September 1995 of the Regional Trial Court, Branch 149, Makati,
fixing the amount of support pendente lite to P5,000.00 for Rebecca
Angela and Regina Isabel, are hereby MODIFIED in that respondent
Francisco Delgado is hereby held liable for support pendente lite in
the amount to be determined by the trial court pursuant to this
Decision. Let the records of this case be remanded to the trial court
for the determination of the proper amount of support pendente
lite for Rebecca Angela and Regina Isabel as well as the arrearages
due them in accordance with this Decision within ten (10) days from
receipt hereof. Concomitantly, the trial court is directed to proceed
EN BANC
G.R. No. L-29959 December 3, 1929
AURELIA DADIVAS DE VILLANUEVA, plaintiff-appellant,
vs.
RAFAEL VILLANUEVA, defendant-appellee.
Harvey and O'Brien for appellant.
Jose G. Generoso for appellee.
STREET, J.:
This action was instituted on May 27, 1927, in the Court of First
Instance of the City of Manila by Aurelia Dadivas de Villanueva
against her husband, Rafael Villanueva, for the purpose of obtaining
separate maintenance and custody of the two younger minor
children, Guillermo and Sergio Villanueva, as well as a proper
allowance for professional legal services rendered by the plaintiff's
attorneys in this action, as well as costs. Upon hearing the cause the
trial court absolved the defendant from the complaint and
abrogated a prior order of the court for maintenance pendente lite,
with costs against the plaintiff. From this judgment the plaintiff
appealed.
The plaintiff, Aurelia Dadivas de Villanueva, was married to the
defendant, Rafael Villanueva, on July 16, 1905, in the City of Manila,
where the pair have since resided. To them have been born three
children, namely, Antonio, Guillermo, and Sergio, who were, at the
time of the trial of this case in the lower court, aged respectively 18,
10 and 9 years. The grounds on which separate maintenance is
sought infidelity and cruelty. With respect to the first of these
charges the proof shows that during the period of about ten years
prior to the institution of the action, the defendant was guilty of
repeated acts of infidelity with four different women, and even after
the action was begun, he is shown to have had illicit relations with
still another, an incident which is incorporated in the case by means
of the amended complaint. Thought at all times protesting against
these irregularities in her husband's conduct, the plaintiff appears to
have exhibited forbearance; and she long continued in marital
relations with him with a view to keeping the family intact as well as
with hope of retrieving him from his erring course. In the end,
however, the incorrigible nature of the defendant in his relations
with other women, coupled with a lack of consideration and even
brutality towards the plaintiff, caused her to withdraw from the
domestic hearth and to establish a separate abode for herself and
two younger children. This final separation occurred on April 20,
1927, about one month before the present action was begun.
The proof with respect to the charge of cruelty shows that the
defendant has not infrequently treated the plaintiff roughly and that
he has at times directed abusive words to her and challenged her to
carry her troubles into court. The proof in support of this charge
does not in our opinion establish a case for separate maintenance,
without relation to the graver charge of conjugal infidelity; and if
the case depended, for its solution, upon cruelty alone, the case
could doubtless be affirmed, in conformity with the doctrine stated
in Arroyo vs. Vazquez de Arroyo (42 Phil. 54), where the charges of
cruelty were found to be unproved or insufficient. In that case,
however, we were able to record the fact that neither of the
spouses had at any time been guilty of conjugal infidelity, and that
neither had, so far as the proof showed, even given just cause to the
other to suspect illicit relations with any person. In the case before
us repeated acts of conjugal infidelity on the part of the husband are
proved, and he appears to be a recurrent, if not an incurable
offender against the sanctity of the marriage tie. This give the wife
an undeniable right to relief.
The law is not so unreasonable as to require a wife to live in marital
relations with a husband whose incurable propensity towards other
women makes common habitation with him unbearable. Deeply
rooted instincts of human nature sanction the separation in such
case, and the law is not so unreasonable as to require as
acquiescence on the part of the injured party which is beyond the
capacity of nature. In order to entitle a wife to maintain a separate
home and to require separate maintenance from her husband it is
not necessary that the husband should bring a concubine into the
marital domicile. Perverse and illicit relations with women outside
of the marital establishment are enough. As was said by Justice
Moreland in Goitia vs. Campos Rueda (35 Phil., 252, 262), a husband
cannot, by his own wrongful acts, relieve himself from the duty to
support his wife imposed by law; and where a husband by wrongful,
illegal, and unbearable conduct, drives his wife from the domicile
fixed by him, he cannot take advantage of her departure to
abrogate the law applicable to the marital relations and repudiate
his duties thereunder.
In her complaint the plaintiff asks for an allowance of P750 per
month, but we are of the opinion that the sum of P500 per month
will suffice, this being in addition to the use which she makes for
living quarters of a modest property belonging to the conjugal
estate. During their marital life the spouses have acquired real
estate which, at the time of the trial, was assessed at more than
P85,000, and which at the same time was reasonably valued at
more than P125,000. In addition to this the defendant appears to be
now earning a substantial salary in commercial activities. The
plaintiff is also entitled to an allowance for attorney's fees which we
fix at P1,000 for services rendered in the trial court and the same
amount for services rendered in this court. It appears that the two
younger children are now living with the plaintiff, and her right to
their custody will not be disturbed. While this litigation was pending
in the lower court the defendant was required to pay the amount of
P500 per month for maintenance of the plaintiff, under an
interlocutory order of June 15, 1927. But these payments ceased
when the appealed decision was promulgated on or about the end
of March, 1928. The plaintiff in this case is therefore entitled to
judgment at the rate of P500 per month beginning April 1, 1928,
until judgment shall be promulgated in this case, and from that date
the defendant will be required to pay P500 per month for
maintenance as already suggested. The plaintiff will also be awarded
the sum of P720 in satisfaction of the amount paid out for the
transcript necessary to this appeal.
The judgment is therefore reversed, and it is ordered that the
plaintiff have and recover of the defendant the sum of P2,000 for
attorney's fees, the sum of P720 for expenses of procuring
transcript, and the sum of P500 per month, beginning April 1, 1928,
until the promulgation of this decision, after which the date the
defendant is ordered to pay to the plaintiff by way of maintenance,
on or before the 10th day of each month, the sum of P500. So
ordered, with costs against appellee.
Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.
EN BANC of the consorts, during marriage, shall only take place by virtue of a
judicial decree, except in the case provided by article 50."
G.R. No. L-7426 February 5, 1913
Under this article the agreement in suit is void. The wife, however,
MARIA QUINTANA, plaintiff-appellee, has a right of action against her husband for support under the
vs. provisions of the Civil Code and, although the contract in question is
GELASIO LERMA, defendant-appellant. void, her right of action does not for that reason fail.

Singson, Ledesma and Lim, and Tirso de Irureta Goyena, for We are of the opinion that the special defense of adultery set up by
appellant. the defendant in his answer both to the original and the amended
Jose Ma. de Marcaida, for appellee. complaint is a good defense, and if properly proved and sustained
will defeat the action.
PER CURIAM:
The judgment of the court below is reversed and the cause
This is an appeal from a judgment in favor of the plaintiff for a sum remanded for a new trial, with instructions to permit the
of money due upon a contract between the plaintiff and defendant interposition of the special defense of adultery and such
husband and wife, for support. amendments of the complaint and answer as may be necessary to
carry this judgment into effect. So ordered.
The action is by a wife against her husband for support. It is based
upon a written contract. The evidence shows that the parties were Arellano, C.J., Torres, Johnson, Moreland, and Trent, JJ., concur.
lawfully married in 1901 and that in February, 1905, they entered
into a written agreement of separation whereby each renounced
certain rights as against the other and divided the conjugal property
between them, the defendant undertaking in consideration of the
premises to pay the plaintiff within the first three days of each
month the sum of P20 for her support and maintenance.

In the original answer, the defendant set up as a special defense

that the wife had forfeited her right to support by committing
adultery. This allegation was stricken out by the court on motion,
upon the ground that under the provisions of article 152 of the Civil
Code the commission of adultery is not recognized as a ground upon
which the obligation to support ceases. Notwithstanding that such
special defense was stricken out by order of the court, the
defendant, after plaintiff had filed an amended complaint, inserted
the same defense in his answer to the amended complaint. The
court upon the trial, however, refused to recognize such defense or
to permit any evidence to be introduced in support thereof, to
which the defendant duly excepted.

Article 1432 of the Civil Code provides: "In default of express

declarations in the marriage contract, the separation of the property
EN BANC
G.R. No. L-43794 August 9, 1935
LUIS FRANCISCO, petitioner,
vs.
FRANCISCO ZANDUETA, Judge of First Instance of Manila, and
EUGENIO LEOPOLDO FRANCISCO, represented by his natural
mother and curator ad litem,
ROSARIO GOMEZ, respondents.
Vicente J. Francisco for petitioner.
J.E. Blanco for respondents.
GODDARD, J.:
This is an original petition for the writ of certiorari whereby the
petitioner, Luis Francisco, seeks to procure the abrogation of an
order of the respondent judge, dated May 2, 1935, granting the
respondent, Eugenio Leopoldo Francisco, a monthly pension of
P30 pendente lite.
It appears that the respondent, Eugenio Leopoldo Francisco, aged
two years, through his natural mother and guardian ad litem,
Rosario Gomez, instituted an action for support against the herein
petitioner in the Court of First Instance of the City of Manila, case
No. 47238. In that case it is alleged that the therein plaintiff is the
acknowledged son of Luis Francisco and as such is entitled to
support. The petitioner, as defendant in that case, answered by a
general denial of each and every material allegation contained in
the complaint and as a special defense alleged that he never
acknowledged and could not have acknowledged that he never
acknowledged and could not have acknowledged the plaintiff as his
son; that he was not present at the baptism of the plaintiff and that
he was married at the time it is alleged that the plaintiff was born.
Notwithstanding this denial of paternity the respondent judge
issued the order of May 2, 1935. On May 11, 1935, petitioner moved
for the reconsideration of that order on the ground that it was
issued in excess of jurisdiction in view of the fact that the civil status
of the plaintiff was placed in issue by the pleadings; that the plaintiff
has no right to monthly support from the defendant until his status
as a child of the latter is finally determined in his favor and that as
the guardian ad litem of the plaintiff admits his lack of means to
defray even the ordinary expenses of existence it would be
impossible for the defendant to recover whatever amount he may
have advanced to plaintiff as supportpendente lite, should it finally
be decided that he is not the father of the plaintiff.
The respondent judge, the Honorable Francisco Zandueta, denied
that motion, hence the institution of this special proceeding.
This court called upon the respondents to answer the petition. They
filed a joint answer and alleged, in substance, that case No. 47238
was set for trial the 29th of April, 1935, and that the attorney for the
defendant in that case filed a motion on April 22, 1935, in which he
prayed that the trial be transferred; that the hearing on this motion
was set for April 27, 1935; that the attorney for the minor filed a
motion, on the day set for the hearing of the motion to transfer, in
which he prayed that said minor be granted the sum of P30 per
month by way of support, pendente lite; that the guardian ad
litem opposed the motion to transfer the trial and that after
discussion the attorney of the herein petitioner in order to secure a
transfer agreed that his client would pay the minor a pension of P30
per month during the pendency of that case, No. 47238. The answer
of the respondents is supported by the affidavits of the respondent
judge and two deputy clerks of the Court of First Instance of Manila.
In petitioner's reply to respondent's answer, made under oath by
the attorney for the petitioner, in case No. 47238 and in this
proceeding, it is alleged that the statements in paragraph for of said
answer and those in the affidavit, Exhibits A and B, as to the
agreement of said attorney to the payment of P30 as monthly
support, are absolutely false.
In order to arrive at a proper solution of this case it is not necessary
to consider the dispute as to whether or not the attorney for the
herein petitioner really agreed that his client should pay P30 per
month by way of support to the plaintiff, pendente lite.
In the case of Yangco vs. Rohde (1 Phil., 404) the petitioner Yangco
filed in this court a petition for a writ of prohibition, alleging that a
complaint had been filed, before the respondent judge, by Victorina
Obin against the petitioner praying that she be granted a divorce, a
monthly allowance for alimony and attorney's fees during the
pendency of the suit; that the said judge ordered the petitioner to
pay the plaintiff a monthly allowance of two hundred fifty Mexican
pesos; that the plaintiff in the said action owns no property and that
the respondent judge acted in excess of his jurisdiction in
attempting to oblige the petitioner to pay Victorina Obin said
allowance.
In that case this court, speaking through Chief Justice Arellano, said:
In the present case the action for the support or alimony is
brought by a woman who alleges that she is a wife;
therefore it is necessary for her to prove possession of the
civil status of a spouse — that is, a marriage, without which
one has no right to the title of husband or wife, . . . .
This evidence being lacking, and the civil status of marriage
being in litigation, it is evident that nothing can be taken
for granted upon the point in issue. There is no law or
reason which authorizes the granting of alimony to a
person who claims to be a spouse in the same manner as to
a person who conclusively establishes by legal proof that
he or she is such a spouse, and sues for divorce or
separation. In this case the legal evidence raises a
presumption of law; in the former there is no presumption,
there is nothing but a mere allegation — a fact in issue —
and a simple fact in issue must not be confounded with an
established right recognized by a final judgment or based
upon a legal presumption. The civil status of marriage being
denied, and this civil status, from which the right to support
is derived, being in issue, it is difficult to see how any effect
can be given to such a claim until an authoritative
declaration has been made as to the existence of the cause.
It is evident that there is of necessity a substantial
difference between the capacity of a person after the
rendition of a final judgment in which that person is
declared to be in possession of the status of marriage and
his capacity prior to such time when nothing exists other
than his suit or claim to be declared in possession of such
status of marriage . . . .
Under article 143 of the Civil Code the following are bound to
support each other: (1) Husband and wife, (2) legitimate ascendants
and descendants, (3) parents and acknowledged natural children
and the legitimate descendants of the latter, (4) parents and
illegitimate children not having the legal status of natural children
and (5) brothers and sisters. In all these cases it is a civil status or a
juridical relation which is the basis of the action for support, the civil
status of marriage or that of relationship.
Paraphrasing the language used in the decision in the Yangco case it
may be said that in the present case the action for support is
brought by a minor, through his guardian ad litem, who alleges that
he is the son of the petitioner; therefore it is necessary for him to
prove his civil status as such son. His alleged civil status being in
litigation, it is evident that nothing can be taken for granted upon
the point in issue. There is no law or reason which authorizes the
granting of support to a person who claims to be a son in the same
manner as to a person who establishes by legal proof that he is such
son. In the latter case the legal evidence raises a presumption of
law, while in the former there is no presumption, there is nothing
but a mere allegation, a fact in issue, and a simple fact in issue must
not be confounded with an established right recognized by a final
judgment. The civil status of sonship being denied and this civil
status, from which the right to support is derived, being in issue, it is
apparent that no effect can be given to such a claim until an
authoritative declaration has been made as to the existence of the
cause. It is also evident that there is a substantial difference
between the capacity of a person after the rendition of a final
judgment in which that person is declared to be in possession of the
status of a son and his capacity prior to such time when nothing
exists other than his suit or claim to be declared in possession of
such a status.
excluded by the laws of the land. In such a case the
question is not whether a competent court has obtained
jurisdiction of a party triable before it, but whether the
court itself is competent under any circumstances to
adjudicate a claim against the defendant. And where there
is want of jurisdiction of the subject-matter, a judgment is
void as to all persons, and consent of parties can never
impart to it the vitality which a valid judgment derives from
the sovereign state, the court being constituted, by express
provision of law, as its agent to pronounce its decrees in
controversies between its people. (7 R.C.L., 1039.)
The writ prayed for is granted and the order of the respondent
judge of May 2, 1935, ordering the herein petitioner as defendant in
case No. 47238 to pay the plaintiff in that case the sum of P30
monthly, as support, pendente lite, is hereby declared null and void,
without costs.
Avanceña, C.J., Villa-Real, Abad Santos, Hull, Imperial, Diaz, and
Recto, JJ., concur.
Separate Opinions
VICKERS, J., concurring:
he found the petition to be well founded (bien fundada).
Respondents now claim that said order was based upon an
agreement of defendant's attorney to the effect that if the trial of
the case was transferred defendant would pay P30 a month for the
support of the child during the pendency of the action. In my
opinion we have no right to take into consideration the affidavits
presented in this court by the respondents for the purpose of
showing that the order for the payment of the supportpendente
lite was based on an agreement of defendant's attorney and not on
the reasons stated in the order in question; and since the plaintiff
did not attempt to prove that he was entitled to support pendente
lite, the action of the respondent judge in ordering the payment of
support under those circumstances was arbitrary and a manifest
abuse of his discretion, for which the right of appeal is not an
adequate remedy.
Malcolm and Butte, JJ., dissent.

I concur in the result. I wish to state, however, that I do not agree

The Civil Code grants the right of support to a son. This status not
with the rule laid down in the case of Yangco vs. Rohde (1 Phil.,
appearing by a final judgment, the respondent judge was without
404). I think that a correct statement of the law is to be found in the
jurisdiction to order the petitioner, as defendant in case No. 47238,
dissenting opinion of Justice Cooper. According to the doctrine of
to pay the plaintiff the sum of P30, or any other amount as monthly
that case, if the defendant denies in his answer the fact of marriage,
support, pendente lite.
the court exceeds its jurisdiction in granting alimony pendente lite.
This puts it within the power of the defendant to prevent the
In view of the lack of jurisdiction of the respondent judge to grant
plaintiff from recovering alimony pendente lite in any case,
the plaintiff support, pendente lite, it is evident that the attorney of
notwithstanding the fact that the plaintiff may present at the
the defendant in case No. 47283 could not by his alleged consent to
hearing of her petition conclusive evidence of the existence of the
the granting of such support give the trial judge jurisdiction to
marriage.
adjudicate such a claim against his client.
In the case at bar it does not appear that the mother of the child
It is a universal rule of law that parties cannot, by consent,
presented any evidence to sustain her petition for support pendente
give a court, as such, jurisdiction in a matter which is
lite, although the trial judge stated in his order of May 2, 1935 that
EN BANC
G.R. No. L-26062 December 31, 1926
JOSE V. RAMIREZ and ELOISA DE MARCAIDA, plaintiffs-appellants,
vs.
J. R. REDFERN, defendant-appellee.
Cavanna, Aboitiz and Agan for appellant
Thomas Cary Welch for appellee.
MALCOLM, J.:
This case calls for the application of article 1894 of the Civil Code to
the facts.
The plaintiffs are Jose V. Ramirez and his wife, Eloisa de Marcaida.
The defendant is J. R. Redfern. Jose V. Ramirez and J. R. Redfern are
brothers-in-law.
The action is brought by the plaintiffs to recover from the defendant
the sums of $600, £185, and P875 for alleged advances to the
defendants wife for her support and maintenance. The answer is a
general denial. The judgment of the trial court absolves the
defendant from the demands of the plaintiffs with costs against the
plaintiffs.
In 1908, J. R. Redfern took his wife and three minor children to
England and left them there. He returned to the Philippines the
following year. Beginning with 1910 and continuing until 1922, Mr.
Redfern provided his wife with funds for her expenses as follows:
1910 — £20 to £30 per month and P1,000 for travelling expenses to
the Philippines; 1911-£20 to £30 per month; 1912 — £20 to £30 per
month; 1919 — £20 to £30 per month; 1914-£345; 1915 — £425;
1916-£590; 1917 — £650; 1918 — £660; 1919 — £560; 1920 —
£600; 1921 — £440; 1922-February to October, $8 per month when
the wife returned to Manila. Mr. Redferd is now furnishing his wife
P300 per month for the support of herself and one child. The two
grown sons are employed and are earning their own living.
In 1920; while still in England, Mrs. Redfern obtained from her
sister, Mrs. Ramirez, the sum of £600. Mrs. Redfern later secured an
additional £185 from her sister in England. Mrs. Redfern did not
make use of this money until 1922. Eight hundred seventy-five
pesos were advanced by Mr. and Mrs. Ramirez to Mrs. Redfern after
the latter had return to Manila.
The foregoing skeletonized statement of the case and of the facts is
taken principally from the decision rendered by Judge Harvey. His
Honor's finding are entirely confirmed by the record. There can be
no vital difference of opinion as to any essential fact.
The result reached by the trial judge was this: "Under the facts and
circumstances of this case, the court is of the opinion that
defendant was amply providing for his wife and children in London,
and that defendant is not liable to plaintiffs for the sums of money
here sought to be recovered, which were delivered to defendant's
wife without his knowledge or consent and when there was no
necessity therefore." Said conclusion is assailed by the plaintiffs as
appellants in an argument on four errors.
The case falls squarely within the provisions of the first paragraph of
article 1894 of the Civil Code. This article provides: "When without
the knowledge of the person who is bound to give support to a
dependent, a stranger supplies it, the latter shall be entitled to
recover the same from the former, unless it appears that he gave it
out of charity, and without the expectation of recovering it." For one
to recover under the provisions of article 1894 of the Civil Code, it
must be alleged and proved, first, that support has been furnished a
dependent of one bound to give support but who fails to do so;
second, that the support was supplied without the knowledge of the
person charged with the duty. The negative qualification is when the
support is given without the expectation of recovering it.
With special reference to the combined facts and law, it may be
conceded that Mr. and Mrs. Redfern with money out of charity. The
third requisite of the law is also taken out of consideration since Mr.
Redfern is the first to acknowledge that the money was handed to
his wife by Mr. and Mrs. Ramirez without his knowledge. We think,
however, that there is a failure of proof as to the first essential, and
possibly the second essential, of the law.1awphil.net
The first requisite of the law has a legal introduction, but ends as a
question of fact. The husband and wife are mutually bound to
support each other. By support is understood all that is necessary
for food, shelter, clothing and medical attendance, according to the
social standing of the family. Parents are also required to bring up
and educate their children. But in this connection, the point of
interest is that the wife accepted assistance from another, when it is
not shown that she had ever made any complaint to her husband or
any of his agents with regard to her allowance. The testimony of the
husband is uncontradicted that he had given his English agent
instructions to furnish his wife with any reasonable sum she needed
bearing in mind his financial condition, but that she never took
advantage of this offer. Mr. Redfern's reason for reducing the
allowance, he says, was his precarious financial situation in 1921
and 1922. Before one can tender succor to the wife of another with
an expectation or recouping himself for the loan, the husband
should be given an opportunity to render the needful assistance.
With reference also to the first requirement of the law above-
mentioned, it is clear that there is evidence in the record which
corroborates the finding of the trial judge that the defendant was
amply providing for his wife and children in London. The only
debatable question relates to the year 1922 when the allowance
was reduced to _œ_8 a month. But a wife's fortunes and a
husband's fortunes coincide. For children of proper age to be made
to look after themselves, is not always a hardship. As to the _œ_600
first advanced to Mrs. Redfern, this was not primarily for support
because she retained it for some time before using it.
What has been said makes superfluous a discussion of the novel
question of whether a sister and her husband are "stangers" within
the meaning of the law. (There can be noted and compared
Pelayo vs. Lauron [1909], 12 Phil., 453, and Gorayeb vs. Hashim
[1922], R. G. No. 19284, 1 not reported.)
We are unable to say that reversible error was committed by the
trial judge in rendering judgment in favor of the defendant and
against the plaintiffs. Accordingly, let the judgment appealed from
be affirmed, with costs against the appellants.
Avanceña, C. J., Street, Ostrand, Johns, Romualdez and Villa-Real, JJ.,
concur.
THIRD DIVISION
G.R. No. 113054 March 16, 1995
LEOUEL SANTOS, SR., petitioner-appellant,
vs.
COURT OF APPEALS, and SPOUSES LEOPOLDO and OFELIA
BEDIA, respondents-appellees.
ROMERO, J.:
In this petition for review, we are asked to overturn the decision of
the Court of Appeals1 granting custody of six-year old Leouel Santos,
Jr. to his maternal grandparents and not to his father, Santos, Sr.
What is sought is a decision which should definitively settle the
matter of the care, custody and control of the boy.
Happily, unlike King Solomon, we need not merely rely on a "wise
and understanding heart," for there is man's law to guide us and
that is, the Family Code.
The antecedent facts giving rise to the case at bench are as follows:
Petitioner Leouel Santos, Sr., an army lieutenant, and Julia Bedia a
nurse by profession, were married in Iloilo City in 1986. Their union
beget only one child, Leouel Santos, Jr. who was born July 18, 1987.
From the time the boy was released from the hospital until
sometime thereafter, he had been in the care and custody of his
maternal grandparents, private respondents herein, Leopoldo and
Ofelia Bedia.
Petitioner and wife Julia agreed to place Leouel Jr. in the temporary
custody of the latter's parents, the respondent spouses Bedia. The
latter alleged that they paid for all the hospital bills, as well as the
subsequent support of the boy because petitioner could not afford
to do so.
The boy's mother, Julia Bedia-Santos, left for the United States in
May 1988 to work. Petitioner alleged that he is not aware of her
whereabouts and his efforts to locate her in the United States
proved futile. Private respondents claim that although abroad, their
daughter Julia had been sending financial support to them for her
son.
On September 2, 1990, petitioner along with his two brothers,
visited the Bedia household, where three-year old Leouel Jr. was
staying. Private respondents contend that through deceit and false
pretensions, petitioner abducted the boy and clandestinely spirited
him away to his hometown in Bacong, Negros Oriental.
The spouses Bedia then filed a "Petition for Care, Custody and
Control of Minor Ward Leouel Santos Jr.," before the Regional Trial
Court of Iloilo City, with Santos, Sr. as respondent.2
After an ex-parte hearing on October 8, 1990, the trial court issued
an order on the same day awarding custody of the child Leouel
Santos, Jr. to his grandparents, Leopoldo and Ofelia Bedia.3
Petitioner appealed this Order to the Court of Appeals. In its 4
decision dated April 30, 1992, respondent appellate court affirmed
the trial court's
order. 5 His motion for reconsideration having been
denied,6 petitioner now brings the instant petition for review for a
reversal of the appellate court's decision.
The Court of Appeals erred, according to petitioner, in awarding
custody of the boy to his grandparents and not to himself. He
contends that since private respondents have failed to show that
petitioner is an unfit and unsuitable father, substitute parental
authority granted to the boy's grandparents under Art. 214 of the
Family Code is inappropriate.
Petitioner adds that the reasons relied upon by the private
respondents in having custody over the boy, are flimsy and
insufficient to deprive him of his natural and legal right to have
custody.
On the other hand, private respondents aver that they can provide
an air-conditioned room for the boy and that petitioner would not
be in a position to take care of his son since he has to be assigned to
different places. They also allege that the petitioner did not give a
single centavo for the boy's support and maintenance. When the
boy was about to be released from the hospital, they were the ones
who paid the fees because their daughter and petitioner had no
money. Besides, Julia Bedia Santos, their daughter, had entrusted
the boy to them before she left for the United States. Furthermore,
petitioner's use of trickery and deceit in abducting the child in 1990,
after being hospitably treated by private respondents, does not
speak well of his fitness and suitability as a parent.
The Bedias argue that although the law recognizes the right of a
parent to his child's custody, ultimately the primary consideration is
what is best for the happiness and welfare of the latter. As maternal
grandparents who have amply demonstrated their love and
affection for the boy since his infancy, they claim to be in the best
position to promote the child's welfare.
The issue to be resolved here boils down to who should properly be
awarded custody of the minor Leouel Santos, Jr.
The right of custody accorded to parents springs from the exercise
of parental authority. Parental authority or patria potestas in Roman
Law is the juridical institution whereby parents rightfully assume
control and protection of their unemancipated children to the
extent required by the latter' s needs.7 It is a mass of rights and
obligations which the law grants to parents for the purpose of the
children's physical preservation and development, as well as the
cultivation of their intellect and the education of their heart and
senses.8 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."9
Parental authority and responsibility are inalienable and may not be
transferred or renounced except in cases authorized by law. 10 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. 11 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. 12 Even if a definite renunciation
is manifest, the law still disallows the same. 13
The father and mother, being the natural guardians of
unemancipated children, are duty-bound and entitled to keep them
in their custody and
company. 14 The child's welfare is always the paramount
consideration in all questions concerning his care and custody. 15
The law vests on the father and mother joint parental authority over
the persons of their common children. 16 In case of absence or
death of either parent, the parent present shall continue exercising
parental authority. 17 Only in case of the parents' death, absence or
unsuitability may substitute parental authority be exercised by the
surviving grandparent. 18 The situation obtaining in the case at
bench is one where the mother of the minor Santos, Jr., is working
in the United States while the father, petitioner Santos, Sr., is
present. Not only are they physically apart but are also emotionally
separated. There has been no decree of legal separation and
petitioner's attempt to obtain an annulment of the marriage on the
ground of psychological incapacity of his wife has failed. 19
Petitioner assails the decisions of both the trial court and the
appellate court to award custody of his minor son to his parents-in-
law, the Bedia spouses on the ground that under Art. 214 of the
Family Code, substitute parental authority of the grandparents is
proper only when both parents are dead, absent or unsuitable.
Petitioner's unfitness, according to him, has not been successfully
shown by private respondents.
The Court of Appeals held that although there is no evidence to
show that petitioner (Santos Sr.) is "depraved, a habitual drunkard
or poor, he may nevertheless be considered, as he is in fact so
considered, to be unsuitable to be allowed to have custody of minor
Leouel Santos Jr." 20
The respondent appellate court, in affirming the trial court's order
of October 8, 1990, adopted as its own the latter's observations, to
wit:
From the evidence adduced, this Court is of the
opinion that it is to be (sic) best interest of the
minor Leouel Santos, Jr. that he be placed under
the care, custody, and control of his maternal
grandparents the petitioners herein. The
petitioners have amply demonstrated their love
and devotion to their grandson while the natural between parent and son. It would also give the father a chance to
father, respondent herein, has shown little prove his love for his son and for the son to experience the warmth
interest in his welfare as reflected by his conduct and support which a father can give.
in the past. Moreover the fact that petitioners are
well-off financially, should be carefully considered His being a soldier is likewise no bar to allowing him custody over
in awarding to them the custody of the minor the boy. So many men in uniform who are assigned to different
herein, lest the breaking of such ties with his parts of the country in the service of the nation, are still the natural
maternal grandparents might deprive the boy of guardians of their children. It is not just to deprive our soldiers of
an eventual college education and other material authority, care and custody over their children merely because of
advantages (Consaul vs. Consaul, 63 N.Y.S. 688). the normal consequences of their duties and assignments, such as
Respondent had never given any previous financial temporary separation from their families.
support to his son, while, upon the other hand,
the latter receives so much bounty from his Petitioner's employment of trickery in spiriting away his boy from
maternal grandparents and his mother as well, his in-laws, though unjustifiable, is likewise not a ground to wrest
who is now gainfully employed in the United custody from him.
States. Moreover, the fact that respondent, as a
military personnel who has to shuttle from one
Private respondents' attachment to the young boy whom they have
assignment to another, and, in these troubled
reared for the past three years is understandable. Still and all, the
times, may have pressing and compelling military
law considers the natural love of a parent to outweigh that of the
duties which may prevent him from attending to
grandparents, such that only when the parent present is shown to
his son at times when the latter needs him most,
be unfit or unsuitable may the grandparents exercise substitute
militates strongly against said respondent.
parental authority, a fact which has not been proven here.
Additionally, the child is sickly and asthmatic and
needs the loving and tender care of those who can
The strong bonds of love and affection possessed by private
provide for it. 21
respondents as grandparents should not be seen as incompatible
with petitioner' right to custody over the child as a father.
We find the aforementioned considerations insufficient to defeat
Moreover, who is to say whether the petitioner's financial standing
petitioner's parental authority and the concomitant right to have
may improve in the future?
custody over the minor Leouel Santos, Jr., particularly since he has
not been shown to be an unsuitable and unfit parent. Private
WHEREFORE, the petition is GRANTED. The decision of the
respondents' demonstrated love and affection for the boy,
respondent Court of Appeals dated April 30, 1992 as well as its
notwithstanding, the legitimate father is still preferred over the
Resolution dated November 13, 1992 are hereby REVERSED and SET
grandparents. 22 The latter's wealth is not a deciding factor,
ASIDE. Custody over the minor Leouel Santos Jr. is awarded to his
particularly because there is no proof that at the present time,
legitimate father, herein petitioner Leouel Santos, Sr.
petitioner is in no position to support the boy. The fact that he was
unable to provide financial support for his minor son from birth up
SO ORDERED.
to over three years when he took the boy from his in-laws without
permission, should not be sufficient reason to strip him of his
permanent right to the child's custody. While petitioner's previous
inattention is inexcusable and merits only the severest criticism, it
cannot be construed as abandonment. His appeal of the
unfavorable decision against him and his efforts to keep his only
child in his custody may be regarded as serious efforts to rectify his
past misdeeds. To award him custody would help enhance the bond
SECOND DIVISION
G.R. No. 116773 January 16, 1997
TERESITA SAGALA-ESLAO, petitioner,
vs.
COURT OF APPEALS and MARIA PAZ CORDERO-OUYE, respondents.
TORRES, JR., J.:
Children begin by loving their parents. After a time they judge them.
Rarely, if ever, do they forgive them. 1 Indeed, parenthood is a riddle
of no mean proportions except for its mission. Thus, a mother's
concern for her child's custody is undying — such is a mother's love.
The right of the mother to the custody of her daughter is the issue in
the case at bar.
In this petition for review, Teresita Sagala-Eslao seeks the reversal of
the Court of Appeals decision2 dated March 25, 1994, which
affirmed the trial court's judgment granting the petition of Maria
Paz Cordero-Ouye to recover the custody of her minor daughter
from her mother-in-law, Teresita Sagala-Eslao.
As found by the Court of Appeals, the facts of the case are as
follows:
From the evidence, it appears that on June 22, 1984,
petitioner Maria Paz Cordero-Ouye and Reynaldo Eslao
were married;3 after their marriage, the couple stayed with
respondent Teresita Eslao, mother of the husband, at 1825,
Road 14, Fabie Estate, Paco, Manila; that out of their
marriage, two children were begotten, namely, Leslie Eslao
who was born on February 23, 1986 and Angelica Eslao
who was born on April 20,
1987;4 in the meantime, Leslie was entrusted to the care
and custody of petitioner's mother in Sta. Ana, Pampanga,
while Angelica stayed with her parents at respondent's
house; on August 6, 1990, petitioner's husband Reynaldo
Eslao died;5 petitioner intended to bring Angelica with her
to Pampanga but the respondent prevailed upon her to
entrust the custody of Angelica to her, respondent
reasoning out that her son just died and to assuage her
grief therefor, she needed the company of the child to at Cordero Eslao, to her natural mother, petitioner Maria Paz
least compensate for the loss of her late son. In the Cordero-Ouye.
meantime, the petitioner returned to her mother's house
in Pampanga where she stayed with Leslie. No pronouncement as to costs.
Subsequently, petitioner was introduced by her auntie to SO ORDERED.
Dr. James Manabu-Ouye, a Japanese-American, who is an
orthodontist practicing in the United States; their On appeal, the respondent court affirmed in full the decision of the
acquaintance blossomed into a meaningful relationship trial court.
where on March 18, 1992, the petitioner and Dr. James
Ouye decided to get married; less than ten months
Hence, the instant petition by the minor's paternal grandmother,
thereafter, or on January 15, 1993, the petitioner migrated
contending that the Court of Appeals erred:
to San Francisco, California, USA, to join her new husband.
At present, the petitioner is a trainee at the Union Bank in
I
San Francisco, while her husband is a progressive
practitioner of his profession who owns three cars, a dental
IN RULING THAT PRIVATE RESPONDENT MARIA PAZ
clinic and earns US$5,000 a month. On June 24, 1993, the
CORDERO-OUYE, DID NOT ABANDON MINOR, ANGELICA
petitioner returned to the Philippines to be reunited with
her children and bring them to the United States; the ESLAO, TO THE CARE AND CUSTODY OF THE PETITIONER
petitioner then informed the respondent about her desire TERESITA SAGALA-ESLAO.
to take informed the respondent about her desire to take
custody of Angelica and explained that her present II
husband, Dr. James Ouye, expressed his willingness to
adopt Leslie and Angelica and to provide for their support IN RULING THAT THERE WAS NO COMPELLING REASON TO
and education; however, respondent resisted the idea by SEPARATE MINOR, ANGELICA ESLAO, FROM PRIVATE
way of explaining that the child was entrusted to her when RESPONDENT MARIA PAZ CORDERO-OUYE, IN FAVOR OF
she was ten days old and accused the petitioner of having PETITIONER TERESITA SAGALA-ESLAO.
abandoned Angelica. Because of the adamant attitude of
the respondent, the petitioner then sought the assistance III
of a lawyer, Atty. Mariano de Joya, Jr., who wrote a letter
to the respondent demanding for the return of the custody IN NOT FINDING THAT PETITIONER TERESITA SAGALA-
of Angelica to her natural mother6 and when the demand ESLAO, IS FIT TO BE GIVEN THE CUSTODY OF MINOR,
remain[ed] unheeded, the petitioner instituted the present ANGELICA ESLAO.
action.7
The petition is without merit.
After the trial on the merits, the lower court rendered its decision,
the dispositive portion of which reads:
Being interrelated, the issues shall be discussed jointly.
WHEREFORE, finding the petition to be meritorious, the
Petitioner argues that she would be deserving to take care of
Court grants the same and let the corresponding writ issue.
Angelica; that she had managed to raise 12 children of her own
As a corollary, respondent Teresita Sagala-Eslao or anyone
herself; that she has the financial means to carry out her plans for
acting under her behalf is hereby directed to cause the
Angelica; that she maintains a store which earns a net income of
immediate transfer of the custody of the minor Angelica
about P500 a day, she gets P900 a month as pension for the death
of her husband, she rents out rooms in her house which she owns,
for which she earns a total of P6,000 a month, and that from her
gross income of roughly P21,000, she spends about P10,000 for the
maintenance of her house.
Despite the foregoing, however, and petitioner's "genuine desire to
remain with said child, that would qualify her to have custody of
Angelica," the trial court's disquisition, in consonance with the
provision that the child's welfare is always the paramount
consideration in all questions concerning his care and
custody8 convinced this Court to decide in favor of private
respondent, thus:
On the other hand, the side of the petitioner must also be
presented here. In this case, we see a picture of a real and
natural mother who is —
. . . legitimately, anxiously, and
desperately trying to get back her child in
order to fill the void in her heart and
existence. She wants to make up for what
she has failed to do for her boy during the
period when she was financially unable to
help him and when she could not have
him in her house because of the objection
of the father. Now that she has her own
home and is in a better financial
condition, she wants her child back, and
we repeat that she has not and has never
given him up definitely or with any idea
of permanence.9
The petitioner herein is married to an Orthodontist who
has lucrative practice of his profession in San Francisco,
California, USA. The petitioner and her present husband
have a home of their own and they have three cars. The
petitioner's husband is willing to adopt the petitioner's
children. If the children will be with their mother, the
probability is that they will be afforded a bright future.
Contrast this situation with the one prevailing in the
respondent's [grandmother's] house. As admitted by the
respondent, four of the rooms in her house are being
rented to other persons with each room occupied by 4 and
5 persons. Added to these persons are the respondent's 2
sons, Samuel and Alfredo, and their respective families
(ibid., p. 54) and one can just visualize the kind of
atmosphere pervading thereat. And to aggravate the
situation, the house has only 2 toilets and 3 faucets. Finally,
considering that in all controversies involving the custody
of minors, the foremost criterion is the physical and moral
well being of the child taking into account the respective
resources and social and moral situations of the contending
parties (Union III vs. Mariano, 101 SCRA 183), the Court is
left with no other recourse but to grant the writ prayed
for.10
Petitioner further contends that the respondent court erred in
finding that there was no abandonment committed by the private
respondent; that while judicial declaration of abandonment of the
child in a case filed for the purpose is not her obtaining as mandated
in Art. 229 of the Family Code because petitioner failed to resort to
such judicial action, it does not ipso facto follow that there was in
fact no abandonment committed by the private respondent.
Petitioner also argues that it has been amply demonstrated during
the trial that private respondent had indeed abandoned Angelica to
the care and custody of the petitioner; that during all the time that
Angelica stayed with petitioner, there were only three instances or
occasions wherein the private respondent saw Angelica; that private
respondent never visited Angelica on important occasions, such as
her birthday, and neither did the former give her cards or gifts, "not
even a single candy;"11 that while private respondent claims
otherwise and that she visited Angelica "many times" and insists
that she visited Angelica as often as four times a month and gave
her remembrances such as candies and clothes, she would not even
remember when the fourth birthday of Angelica was.
We are not persuaded by such averments.
In Santos, Sr. vs. Court of Appeals, 242 SCRA 407,12 we stated, viz:
. . . [Parental authority] is a mass of rights and obligations
which the law grants to parents for the purpose of the
children's physical preservation and development, as well
as the cultivation of their intellect and the education of
their heart and senses.13 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."14
Parental authority and responsibility are inalienable and
may not be transferred or renounced except in cases
authorized by law.15 The right attached to parental
authority, being purely personal, the law allows a waiver of
parental authority only in cases of adoption, guardianship
and surrender to a children's home or an orphan
institution.16 When a parent entrusts the custody of a
minor to another, such as a friend or godfather, even in a
document, what is given is merely temporary custody and
it does not constitute a renunciation of parental
authority.17 Even if a definite renunciation is manifest, the
law still disallows the same.18
The father and mother, being the natural guardians of
unemancipated children, are duty-bound and entitled to
keep them in their custody and company.19
Thus, in the instant petition, when private respondent entrusted the
custody of her minor child to the petitioner, what she gave to the
latter was merely temporary custody and it did not constitute
abandonment or renunciation of parental authority. For the right
attached to parental authority, being purely personal, the law allows
a waiver of parental authority only in cases of adoption,
guardianship and surrender to a children's home or an orphan
institution which do not appear in the case at bar.
Of considerable importance is the rule long accepted by the courts
that "the right of parents to the custody of their minor children is
one of the natural rights incident to parenthood, a right supported
by law and sound public policy. The right is an inherent one, which is
not created by the state or decisions of the courts, but derives from
the nature of the parental relationship.20
IN VIEW WHEREOF, the decision appealed from dated March 25,
1994 being in accordance with law and the evidence, the same is
hereby AFFIRMED and the petition DISMISSED for lack of merit.
SO ORDERED.
THIRD DIVISION
G.R. No. 132223 June 19, 2001
BONIFACIA P. VANCIL, petitioner,
vs.
HELEN G. BELMES, respondent.
SANDOVAL-GUTIERREZ, J.:
Petition for review on certiorari of the Decision of the Court of
Appeals in CA-G.R. CV No. 45650, "In the Matter of Guardianship of
Minors Valerie Vancil and Vincent Vancil – Bonifacia P. Vancil,
Petitioner-Appellee, vs. Helen G. Belmes, Oppositor-Appellant,"
promulgated on July 29, 1997, and its Resolution dated December
18, 1997 denying the motion for reconsideration of the said
Decision.
The facts of the case as summarized by the Court of Appeals in its
Decision are:
"Petitioner, Bonifacia Vancil, is the mother of Reeder C.
Vancil, a Navy serviceman of the United States of America
who died in the said country on December 22, 1986. During
his lifetime, Reeder had two (2) children named Valerie and
Vincent by his common-law wife, Helen G. Belmes.
"Sometime in May of 1987, Bonifacia Vancil commenced
before the Regional Trial Court of Cebu City a guardianship
proceedings over the persons and properties of minors
Valerie and Vincent docketed as Special Proceedings No.
1618-CEB. At the time, Valerie was only 6 years old while
Vincent was a 2-year old child. It is claimed in the petition
that the minors are residents of Cebu City, Philippines and
have an estate consisting of proceeds from their father’s
death pension benefits with a probable value of
P100,000.00.
"Finding sufficiency in form and in substance, the case was
set for hearing after a 3-consecutive-weekly publications
with the Sunstar Daily.
"On July 15, 1987, petitioner, Bonifacia Vancil was
appointed legal and judicial guardian over the persons and
estate of Valerie Vancil and Vincent Vancil Jr.
"On August 13, 1987, the natural mother of the minors,
Helen Belmes, submitted an opposition to the subject
guardianship proceedings asseverating that she had already
filed a similar petition for guardianship under Special
Proceedings No. 2819 before the Regional Trial Court of
Pagadian City.
"Thereafter, on June 27, 1988, Helen Belmes followed her
opposition with a motion for the Removal of Guardian and
Appointment of a New One, asserting that she is the
natural mother in actual custody of and exercising parental
authority over the subject minors at Maralag, Dumingag,
Zamboanga del Sur where they are permanently residing;
that the petition was filed under an improper venue; and
that at the time the petition was filed Bonifacia Vancil was
a resident of 140 Hurliman Court, Canon City, Colorado,
U.S.A. being a naturalized American citizen.
"On October 12, 1988, after due proceedings, the trial
court rejected and denied Belmes’ motion to remove
and/or to disqualify Bonifacia as guardian of Valerie and
Vincent Jr. and instead ordered petitioner Bonifacia Vancil
to enter the office and perform her duties as such guardian
upon the posting of a bond of P50,000.00. The subsequent
attempt for a reconsideration was likewise dismissed in an
Order dated November 24, 1988."1
On appeal, the Court of Appeals rendered its assailed Decision
reversing the RTC order of October 12, 1988 and dismissing Special
Proceedings No. 1618-CEB.
The Court of Appeals held:
"Stress should likewise be made that our Civil Code
considers parents, the father, or in the absence, the
mother, as natural guardian of her minor children. The law
on parental authority under the Civil Code or P.D. 603 and
now the New Family Code, (Article 225 of the Family Code)
ascribe to the same legal pronouncements. Section 7 of
Rule 93 of the Revised Rules of Court confirms the
designation of the parents as ipso facto guardian of their
minor children without need of a court appointment and
only for good reason may another person be named.
Ironically, for the petitioner, there is nothing on record of
any reason at all why Helen Belmes, the biological mother,
should be deprived of her legal rights as natural guardian of
her minor children. To give away such privilege from Helen
would be an abdication and grave violation of the very
basic fundamental tenets in civil law and the constitution
on family solidarity."2
On March 10, 1998, Bonifacia Vancil filed with this Court the present
petition, raising the following "legal points":
"1. The Court of Appeals gravely erred in ruling that the
preferential right of a parent to be appointed guardian over
the persons and estate of the minors is absolute, contrary
to existing jurisprudence.
"2. The Court of Appeals gravely erred in ruling that
Oppositor Helen G. Belmes, the biological mother, should
be appointed the guardian of the minors despite the
undisputed proof that under her custody, her daughter
minor Valerie Vancil was raped seven times by Oppositor’s
live-in partner.
"3. The respondent (sic) Court of Appeals gravely erred
when it disqualified petitioner Bonifacia P. Vancil to be
appointed as judicial guardian over the persons and estate
of subject minors despite the fact that she has all the
qualifications and none of the disqualifications as judicial
guardian, merely on the basis of her U.S. citizenship which
is clearly not a statutory requirement to become guardian."
At the outset, let it be stressed that in her "Manifestation/Motion,"
dated September 15, 1998, respondent Helen Belmes stated that
her daughter Valerie turned eighteen on September 2, 1998 as
shown by her Birth Certificate.3Respondent thus prayed that this
case be dismissed with respect to Valerie, she being no longer a
proper subject of guardianship proceedings. The said
"Manifestation/Motion" was noted by this Court in its Resolution
dated November 11, 1998.
Considering that Valerie is already of major age, this petition has
become moot with respect to her. Thus, only the first and third
"legal points" raised by petitioner should be resolved.
The basic issue for our resolution is who between the mother and
grandmother of minor Vincent should be his guardian.
We agree with the ruling of the Court of Appeals that respondent,
being the natural mother of the minor, has the preferential right
over that of petitioner to be his guardian. This ruling finds support in
Article 211 of the Family Code which provides:
"Art. 211. The father and the mother shall jointly exercise
parental authority over the persons of their common
children. In case of disagreement, the father’s decision
shall prevail, unless there is a judicial order to the contrary.
xxx."
Indeed, being the natural mother of minor Vincent, respondent has
the corresponding natural and legal right to his custody. In Sagala-
Eslao vs. Court of Appeals,4 this Court held:
"Of considerable importance is the rule long accepted by
the courts that ‘the right of parents to the custody of their
minor children is one of the natural rights incident to
parenthood,’ a right supported by law and sound public
policy. The right is an inherent one, which is not created by
the state or decisions of the courts, but derives from the
nature of the parental relationship."
Petitioner contends that she is more qualified as guardian of
Vincent.
Petitioner’s claim to be the guardian of said minor can only be
realized by way of substitute parental authoritypursuant to Article
214 of the Family Code, thus:
"Art. 214. In case of death, absence or unsuitability of the
parents, substitute parental authority shall be exercised by
the surviving grandparent. xxx."
In Santos, Sr. vs. Court of Appeals,5 this Court ruled:
"The law vests on the father and mother joint parental
authority over the persons of their common children. In
case of absence or death of either parent, the parent
present shall continue exercising parental authority. Only in
case of the parents’ death, absence or unsuitability may
substitute parental authority be exercised by the surviving
grandparent."
Petitioner, as the surviving grandparent, can exercise substitute
parental authority only in case of death, absence or unsuitability of
respondent. Considering that respondent is very much alive and has
exercised continuously parental authority over Vincent, petitioner
has to prove, in asserting her right to be the minor’s guardian,
respondent’s unsuitability. Petitioner, however, has not proffered
convincing evidence showing that respondent is not suited to be the
guardian of Vincent. Petitioner merely insists that respondent is
morally unfit as guardian of Valerie considering that her
(respondent’s) live-in partner raped Valerie several times. But
Valerie, being now of major age, is no longer a subject of this
guardianship proceeding.
Even assuming that respondent is unfit as guardian of minor
Vincent, still petitioner cannot qualify as a substitute guardian. It
bears stressing that she is an American citizen and a resident of
Colorado. Obviously, she will not be able to perform the
responsibilities and obligations required of a guardian. In fact, in her
petition, she admitted the difficulty of discharging the duties of a
guardian by an expatriate, like her. To be sure, she will merely
delegate those duties to someone else who may not also qualify as a
guardian.
Moreover, we observe that respondent’s allegation that petitioner
has not set foot in the Philippines since 1987 has not been
controverted by her. Besides, petitioner’s old age and her conviction
of libel by the Regional Trial Court, Branch 6, Cebu City in Criminal
Case No. CBU-168846 filed by one Danilo R. Deen, will give her a
second thought of staying here. Indeed, her coming back to this
country just to fulfill the duties of a guardian to Vincent for only two
years is not certain.
Significantly, this Court has held that courts should not appoint
persons as guardians who are not within the jurisdiction of our
courts for they will find it difficult to protect the wards. In Guerrero
vs. Teran,7 this Court held:
"Doña Maria Muñoz y Gomez was, as above indicated,
removed upon the theory that her appointment was void
because she did not reside in the Philippine Islands. There
is nothing in the law which requires the courts to appoint
residents only as administrators or guardians. However,
notwithstanding the fact that there are no statutory
requirements upon this question, the courts, charged with
the responsibilities of protecting the estates of deceased
persons, wards of the estate, etc., will find much difficulty
in complying with this duty by appointing administrators
and guardians who are not personally subject to their
jurisdiction. Notwithstanding that there is no statutory
requirement, the courts should not consent to the
appointment of persons as administrators and guardians
who are not personally subject to the jurisdiction of our
courts here."
WHEREFORE, the appealed Decision is hereby AFFIRMED, with
modification in the sense that Valerie, who has attained the age of
majority, will no longer be under the guardianship of respondent
Helen Belmes.
Costs against petitioner.
SO ORDERED.
THIRD DIVISION
G.R. No. 115640 March 15, 1995
REYNALDO ESPIRITU and GUILLERMA LAYUG, petitioners,
vs.
COURT OF APPEALS and TERESITA MASAUDING, respondents.
MELO, J.:
This case concerns a seemingly void marriage and a relationship
which went sour. The innocent victims are two children horn out of
the same union. Upon this Court now falls the not too welcome task
of deciding the issue of who, between the father and mother, is
more suitable and better qualified in helping the children to grow
into responsible, well-adjusted, and happy young adulthood.
Petitioner Reynaldo Espiritu and respondent Teresita Masauding
first met sometime in 1976 in Iligan City where Reynaldo was
employed by the National Steel Corporation and Teresita was
employed as a nurse in a local hospital. In 1977, Teresita left for Los
Angeles, California to work as a nurse. She was able to acquire
immigrant status sometime later. In 1984, Reynaldo was sent by his
employer, the National Steel Corporation, to Pittsburgh,
Pennsylvania as its liaison officer and Reynaldo and Teresita then
began to maintain a common law relationship of husband and wife.
On August 16, 1986, their daughter, Rosalind Therese, was born. On
October 7, 1987, while they were on a brief vacation in the
Philippines, Reynaldo and Teresita got married, and upon their
return to the United States, their second child, a son, this time, and
given the name Reginald Vince, was born on January 12, 1988.
The relationship of the couple deteriorated until they decided to
separate sometime in 1990. Teresita blamed Reynaldo for the
break-up, stating he was always nagging her about money matters.
Reynaldo, on the other hand, contended that Teresita was a
spendthrift, buying expensive jewelry and antique furniture instead
of attending to household expenses.
Instead of giving their marriage a second chance as allegedly
pleaded by Reynaldo, Teresita left Reynaldo and the children and
went back to California. She claims, however, that she spent a lot of
money on long distance telephone calls to keep in constant touch
with her children.
Reynaldo brought his children home to the Philippines, but because
his assignment in Pittsburgh was not yet completed, he was sent
back by his company to Pittsburgh. He had to leave his children with
his sister, co-petitioner Guillerma Layug and her family.
Teresita claims that she did not immediately follow her children
because Reynaldo filed a criminal case for bigamy against her and
she was afraid of being arrested. The judgment of conviction in the
bigamy case was actually rendered only on September 29, 1994.
(Per Judge Harriet O. Demetriou, Branch 70, RTC, Pasig, pp. 210-
222, Rollo). Teresita, meanwhile, decided to return to the
Philippines and on December 8, 1992 and filed the petition for a writ
of habeas corpus against herein two petitioners to gain custody over
the children, thus starting the whole proceedings now reaching this
Court.
On June 30, 1993, the trial court dismissed the petition for habeas
corpus. It suspended Teresita's parental authority over Rosalind and
Reginald and declared Reynaldo to have sole parental authority over
them but with rights of visitation to be agreed upon by the parties
and to be approved by the Court.
On February 16, 1994, the Court of Appeals per Justice Isnani, with
Justices de Pano and Ibay-Somera concurring, reversed the trial
court's decision. It gave custody to Teresita and visitation rights on
weekends to Reynaldo.
Petitioners now come to this Court on a petition for review, in the
main contending that the Court of Appeals disregarded the factual
findings of the trial court; that the Court of Appeals further engaged
in speculations and conjectures, resulting in its erroneous
conclusion that custody of the children should be given to
respondent Teresita.
We believe that respondent court resolved the question of custody
over the children through an automatic and blind application of the
age proviso of Article 363 of the Civil Code which reads:
Art. 363. In all questions on the care, custody,
education and property of the children, the latter's
welfare shall be paramount. No mother shall be
separated from her child under seven years of age,
unless the court finds compelling reasons for such
measure.
and of Article 213 of the Family Code which in turn
provides:
Art. 213. In case of separation of the parents
parental authority shall be exercised by the parent
designated by the Court. The Court shall take into
account all relevant considerations, especially the
choice of the child over seven years of age unless
the parent chosen is unfit.
The decision under review is based on the report of the Code
Commission which drafted Article 213 that a child below seven
years still needs the loving, tender care that only a mother can give
and which, presumably, a father cannot give in equal measure. The
commentaries of a member of the Code Commission, former Court
of Appeals Justice Alicia Sempio-Diy, in a textbook on the Family
Code, were also taken into account. Justice Diy believes that a child
below seven years should still be awarded to her mother even if the
latter is a prostitute or is unfaithful to her husband. This is on the
theory that moral dereliction has no effect on a baby unable to
understand such action. (Handbook on the Family Code of the
Philippines, 1988 Ed., p. 297.)
The Court of Appeals was unduly swayed by an abstract
presumption of law rather than an appreciation of relevant facts
and the law which should apply to those facts. The task of choosing
the parent to whom custody shall be awarded is not a ministerial
function to be determined by a simple determination of the age of a
minor child. Whether a child is under or over seven years of age, the
paramount criterion must always be the child's interests. Discretion
is given to the court to decide who can best assure the welfare of
the child, and award the custody on the basis of that consideration.
In Unson III vs. Navarro (101 SCRA 183 [1980]), we laid down the
rule that "in all controversies regarding the custody of minors, the
sole and foremost consideration is the physical, education, social
and moral welfare of the child concerned, taking into account the
respective resources and social and moral situations of the
contending parents", and in Medina vs. Makabali (27 SCRA 502
[1969]), where custody of the minor was given to a non-relative as
against the mother, then the country's leading civilist, Justice J.B.L.
Reyes, explained its basis in this manner:
. . . While our law recognizes the right of a parent
to the custody of her child, Courts must not lose
sight of the basic principle that "in all questions on
the care, custody, education and property of
children, the latter's welfare shall be paramount"
(Civil Code of the Philippines. Art. 363), and that
for compelling reasons, even a child under seven
may be ordered separated from the mother (do).
This is as it should be, for in the continual
evolution of legal institutions, the patria
potestas has been transformed from thejus vitae
ac necis (right of life and death) of the Roman law,
under which the offspring was virtually a chattel of
his parents into a radically different institution,
due to the influence of Christian faith and
doctrines. The obligational aspect is now supreme.
As pointed out by Puig Pena, now "there is no
power, but a task; no complex of rights (of
parents) but a sum of duties; no sovereignty, but a
sacred trust for the welfare of the minor."
As a result, the right of parents to the company
and custody of their children is but ancillary to the
proper discharge of parental duties to provide the
children with adequate support, education, moral,
intellectual and civic training and development
(Civil Code, Art. 356).
(pp. 504-505.)
In ascertaining the welfare and best interests of the child, courts are
mandated by the Family Code to take into account all relevant
considerations. If a child is under seven years of age, the law
presumes that the mother is the best custodian. The presumption is
strong but it is not conclusive. It can be overcome by "compelling
reasons". If a child is over seven, his choice is paramount but, again,
the court is not bound by that choice. In its discretion, the court may
find the chosen parent unfit and award custody to the other parent,
or even to a third party as it deems fit under the circumstances.
In the present case, both Rosalind and Reginald are now over seven
years of age. Rosalind celebrated her seventh birthday on August
16, 1993 while Reginald reached the same age on January 12, 1995.
Both are studying in reputable schools and appear to be fairly
intelligent children, quite capable of thoughtfully determining the
parent with whom they would want to live. Once the choice has
been made, the burden returns to the court to investigate if the
parent thus chosen is unfit to assume parental authority and
custodial responsibility.
Herein lies the error of the Court of Appeals. Instead of scrutinizing
the records to discover the choice of the children and rather than
verifying whether that parent is fit or unfit, respondent court simply
followed statutory presumptions and general propositions
applicable to ordinary or common situations. The seven-year age
limit was mechanically treated as an arbitrary cut off period and not
a guide based on a strong presumption.
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.
We are inclined to sustain the findings and conclusions of the
regional trial court because it gave greater attention to the choice of
Rosalind and considered in detail all the relevant factors bearing on
the issue of custody.
When she was a little over 5 years old, Rosalind was referred to a
child psychologist, Rita Flores Macabulos, to determine the effects
of uprooting her from the Assumption College where she was
studying. Four different tests were administered. The results of the
tests are quite revealing. The responses of Rosalind about her
mother were very negative causing the psychologist to delve deeper
into the child's anxiety. Among the things revealed by Rosalind was
an incident where she saw her mother hugging and kissing a "bad"
man who lived in their house and worked for her father. Rosalind
refused to talk to her mother even on the telephone. She tended to
be emotionally emblazed because of constant fears that she may
have to leave school and her aunt's family to go back to the United
States to live with her mother. The 5-1/2 page report deals at length
with feelings of insecurity and anxiety arising from strong conflict
with the mother. The child tried to compensate by having fantasy
activities. All of the 8 recommendations of the child psychologist
show that Rosalind chooses petitioners over the private respondent
and that her welfare will be best served by staying with them (pp.
199-205, Rollo).
At about the same time, a social welfare case study was conducted
for the purpose of securing the travel clearance required before
minors may go abroad. Social Welfare Officer Emma D. Estrada
Lopez, stated that the child Rosalind refused to go back to the
United States and be reunited with her mother. She felt unloved and
uncared for. Rosalind was more attached to her Yaya who did
everything for her and Reginald. The child was found suffering from
emotional shock caused by her mother's infidelity. The application
for travel clearance was recommended for denial (pp. 206-
209, Rollo).
Respondent Teresita, for her part, argues that the 7-year age
reference in the law applies to the date when the petition for a writ
of habeas corpus is filed, not to the date when a decision is
rendered. This argument is flawed. Considerations involving the
choice made by a child must be ascertained at the time that either
parent is given custody over the child. The matter of custody is not
permanent and unalterable. If the parent who was given custody
suffers a future character change and becomes unfit, the matter of
custody can always be re-examined and adjusted (Unson III v.
Navarro, supra, at p. 189). To be sure, the welfare, the best
interests, the benefit, and the good of the child must be determined
as of the time that either parent is chosen to be the custodian. At
the present time, both children are over 7 years of age and are thus
perfectly capable of making a fairly intelligent choice.
According to respondent Teresita, she and her children had tearful
reunion in the trial court, with the children crying, grabbing, and
embracing her to prevent the father from taking them away from
her. We are more inclined to believe the father's contention that
the children ignored Teresita in court because such an emotional
display as described by Teresita in her pleadings could not have
been missed by the trial court. Unlike the Justices of the Court of
Appeals Fourth Division, Judge Lucas P. Bersamin personally
observed the children and their mother in the courtroom. What the
Judge found is diametrically opposed to the contentions of
respondent Teresita. The Judge had this to say on the matter.
And, lastly, the Court cannot look at petitioner
[Teresita] in similar light, or with more
understanding, especially as her conduct and
demeanor in the courtroom (during most of the
proceedings) or elsewhere (but in the presence of
the undersigned presiding judge) demonstrated
her ebulent temper that tended to corroborate
the alleged violence of her physical punishment of
the children (even if only for ordinary disciplinary
purposes) and emotional instability, typified by
her failure (or refusal?) to show deference and
respect to the Court and the other parties (pp. 12-
13, RTC Decision)
Respondent Teresita also questions the competence and
impartiality of the expert witnesses. Respondent court, in turn,
states that the trial court should have considered the fact that
Reynaldo and his sister, herein petitioner Guillerma Layug, hired the
two expert witnesses. Actually, this was taken into account by the
trial court which stated that the allegations of bias and unfairness
made by Teresita against the psychologist and social worker were
not substantiated.
The trial court stated that the professional integrity and
competence of the expert witnesses and the objectivity of the
interviews were unshaken and unimpeached. We might add that
their testimony remain uncontroverted. We also note that the
examinations made by the experts were conducted in late 1991,
well over a year before the filing by Teresita of the habeas
corpus petition in December, 1992. Thus, the examinations were at
that time not intended to support petitioners' position in litigation,
because there was then not even an impending possibility of one.
That they were subsequently utilized in the case a quo when it did
materialize does not change the tenor in which they were first
obtained.
Furthermore, such examinations, when presented to the court must
be construed to have been presented not to sway the court in favor
of any of the parties, but to assist the court in the determination of
the issue before it. The persons who effected such examinations
were presented in the capacity of expert witnesses testifying on
matters within their respective knowledge and expertise. On this
matter, this Court had occasion to rule in the case of Sali
vs. Abukakar, et al. (17 SCRA 988 [1966]).
The fact that, in a particular litigation, an NBI
expert examines certain contested documents, at
the request, not of a public officer or agency of the
Government, but of a private litigant, does not
necessarily nullify the examination thus made. Its
purpose, presumably, to assist the court having
jurisdiction over said litigation, in the performance
of its duty to settle correctly the issues relative to
said documents. Even a non-expert private
individual may examine the same, if there are
facts within his knowledge which may help, the
court in the determination of said issue. Such
examination, which may properly be undertaken
by a non-expert private individual, does not,
certainly become null and void when the examiner
is an expert and/or an officer of the NBI.
(pp. 991-992.)
In regard to testimony of expert witnesses it was held in Salomon, et
al. vs. Intermediate Appellate Court, et al. (185 SCRA 352 [1990]):
. . . Although courts are not ordinarily bound by
expert testimonies, they may place whatever
weight they choose upon such testimonies in
accordance with the facts of the case. The relative
weight and sufficiency of expert testimony is
peculiarly within the province of the trial court to
decide, considering the ability and character of the
witness, his actions upon the witness stand, the
weight and process of the reasoning by which he
has supported his opinion, his possible bias in
favor of the side for whom he testifies, the fact
that he is a paid witness, the relative opportunities
for study and observation of the matters about
which he testifies, and any other matters which
reserve to illuminate his statements. The opinion
of the expert may not be arbitrarily rejected; it is
to be considered by the court in view of all the
facts and circumstances in the case and when
common knowledge utterly fails, the expert
opinion may be given controlling effect (20 Am.
Jur., 1056-1058). The problem of the credibility of
the expert witness and the evaluation of his
testimony is left to the discretion of the trial court
whose ruling thereupon is not reviewable in the
absence of an abuse of that discretion.
(p. 359)
It was in the exercise of this discretion, coupled with the
opportunity to assess the witnesses' character and to observe their
respective demeanor that the trial court opted to rely on their
testimony, and we believe that the trial court was correct in its
action.
Under direct examination an February 4, 1993, Social Worker Lopez
stated that Rosalind and her aunt were about to board a plane when
they were off-loaded because there was no required clearance.
They were referred to her office, at which time Reginald was also
brought along and interviewed. One of the regular duties of Social
Worker Lopez in her job appears to be the interview of minors who
leave for abroad with their parents or other persons. The interview
was for purposes of foreign travel by a 5-year old child and had
nothing to do with any pending litigation. On cross-examination,
Social Worker Lopez stated that her assessment of the minor's
hatred for her mother was based on the disclosures of the minor. It
is inconceivable, much less presumable that Ms. Lopez would
compromise her position, ethics, and the public trust reposed on a
person of her position in the course of doing her job by falsely
testifying just to support the position of any litigant.
The psychologist, Ms. Macabulos, is a B.S. magna cum laude
graduate in Psychology and an M.A. degree holder also in
Psychology with her thesis graded "Excellent". She was a candidate
for a doctoral degree at the time of the interview. Petitioner
Reynaldo may have shouldered the cost of the interview but Ms.
Macabulos services were secured because Assumption College
wanted an examination of the child for school purposes and not
because of any litigation. She may have been paid to examine the
child and to render a finding based on her examination, but she was
not paid to fabricate such findings in favor of the party who retained
her services. In this instance it was not even petitioner Reynaldo but
the school authorities who initiated the same. It cannot be
presumed that a professional of her potential and stature would
compromise her professional standing.
Teresita questions the findings of the trial court that:
1. Her morality is questionable as shown by her
marrying Reynaldo at the time she had a
subsisting marriage with another man.
2. She is guilty of grave indiscretion in carrying on
a love affair with one of the Reynaldo's fellow NSC
employees.
3. She is incapable of providing the children with
necessities and conveniences commensurate to
their social standing because she does not even
own any home in the Philippines.
4. She is emotionally unstable with ebullient
temper.
It is contended that the above findings do not constitute the
compelling reasons under the law which would justify depriving her
of custody over the children; worse, she claims, these findings are
non-existent and have not been proved by clear and convincing
evidence.
Public and private respondents give undue weight to the matter of a
child under 7 years of age not to be separated from the mother,
without considering what the law itself denominates as compelling
reasons or relevant considerations to otherwise decree. In
the Unson III case, earlier mentioned, this Court stated that it found
no difficulty in not awarding custody to the mother, it being in the
best interest of the child "to be freed from the obviously
unwholesome, not
to say immoral influence, that the situation where [the mother] had
placed herself . . . might create in the moral and social outlook of
[the child] who was in her formative and most impressionable stage
. . ."
Then too, it must be noted that both Rosalind and Reginald are now
over 7 years of age. They understand the difference between right
and wrong, ethical behavior and deviant immorality. Their best
interests would be better served in an environment characterized by
emotional stability and a certain degree of material sufficiency.
There is nothing in the records to show that Reynaldo is an "unfit"
person under Article 213 of the Family Code. In fact, he has been
trying his best to give the children the kind of attention and care
which the mother is not in a position to extend.
The argument that the charges against the mother are false is not
supported by the records. The findings of the trial court are based
on evidence.
Teresita does not deny that she was legally married to Roberto
Lustado on December 17, 1984 in California (p. 13, Respondent's
Memorandum; p. 238, Rollo; pp. 11, RTC Decision). Less than a year
later, she had already driven across the continental United States to
commence living with another man, petitioner Reynaldo, in
Pittsburgh. The two were married on October 7, 1987. Of course, to
dilute this disadvantage on her part, this matter of her having
contracted a bigamous marriage later with Reynaldo, Teresita tried
to picture Reynaldo as a rapist, alleging further that she told
Reynaldo about her marriage to Lustado on the occasion when she
was raped by Reynaldo. Expectedly, Judge Harriet Demetriou of the
Pasig RTC lent no weight to such tale. And even if this story were
given credence, it adds to and not subtracts from the conviction of
this Court about Teresita's values. Rape is an insidious crime against
privacy. Confiding to one's potential rapist about a prior marriage is
not a very convincing indication that the potential victim is averse to
the act. The implication created is that the act would be acceptable
if not for the prior marriage.
More likely is Reynaldo's story that he learned of the prior marriage
only much later. In fact, the rape incident itself is unlikely against a
woman who had driven three days and three nights from California,
who went straight to the house of Reynaldo in Pittsburgh and upon
arriving went to bed and, who immediately thereafter started to live
with him in a relationship which is marital in nature if not in fact.
Judge Bersamin of the court a quo believed the testimony of the
various witnesses that while married to Reynaldo, Teresita entered
into an illicit relationship with Perdencio Gonzales right there in the
house of petitioner Reynaldo and respondent Teresita. Perdencio
had been assigned by the National Steel Corporation to assist in the
project in Pittsburgh and was staying with Reynaldo, his co-
employee, in the latter's house. The record shows that the daughter
Rosalind suffered emotional disturbance caused by the traumatic
effect of seeing her mother hugging and kissing a boarder in their
house. The record also shows that it was Teresita who left the
conjugal home and the children, bound for California. When
Perdencio Gonzales was reassigned to the Philippines, Teresita
followed him and was seen in his company in a Cebu hotel, staying
in one room and taking breakfast together. More significant is that
letters and written messages from Teresita to Perdencio were
submitted in evidence (p.12, RTC Decision).
The argument that moral laxity or the habit of flirting from one man
to another does not fall under "compelling reasons" is neither
meritorious nor applicable in this case. Not only are the children
over seven years old and their clear choice is the father, but the
illicit or immoral activities of the mother had already caused
emotional disturbances, personality conflicts, and exposure to
conflicting moral values, at least in Rosalind. This is not to mention
her conviction for the crime of bigamy, which from the records
appears to have become final (pp. 210-222, Rollo).
Respondent court's finding that the father could not very well
perform the role of a sole parent and substitute mother because his
job is in the United States while the children will be left behind with
their aunt in the Philippines is misplaced. The assignment of
Reynaldo in Pittsburgh is or was a temporary one. He was sent there
to oversee the purchase of a steel mill component and various
equipment needed by the National Steel Corporation in the
Philippines. Once the purchases are completed, there is nothing to
keep him there anymore. In fact, in a letter dated January 30, 1995,
Reynaldo informs this Court of the completion of his assignment
abroad and of his permanent return to the Philippines (ff.
p. 263, Rollo).

The law is more than satisfied by the judgment of the trial court.
The children are now both over seven years old. Their choice of the
parent with whom they prefer to stay is clear from the record. From
all indications, Reynaldo is a fit person, thus meeting the two
requirements found in the first paragraph of Article 213 of the
Family Code. The presumption under the second paragraph of said
article no longer applies as the children are over seven years.
Assuming that the presumption should have persuasive value for
children only one or two years beyond the age of seven years
mentioned in the statute, there are compelling reasons and relevant
considerations not to grant custody to the mother. The children
understand the unfortunate shortcomings of their mother and have
been affected in their emotional growth by her behavior.

WHEREFORE, the petition is hereby GRANTED. The decision of the

Court of Appeals is reversed and set aside, and the decision of
Branch 96 of the Regional Trial Court of the National Capital Judicial
Region stationed in Quezon City and presided over by the Honorable
Lucas P. Bersamin in its Civil Case No. Q-92-14206 awarding custody
of the minors Rosalind and Reginald Espiritu to their father,
Reynaldo Espiritu, is reinstated. No special pronouncement is made
as to costs.

SO ORDERED.
SECOND DIVISION
G.R. No. L-68374 June 18, 1985
HORACIO LUNA and LIBERTY HIZON-LUNA, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, HON ROQUE A. TAMAYO, as
Presiding Judge of Regional Trial Court, NCR Branch CXXXI1 Makati,
Metro Manila, MARIA LOURDES SANTOS, and SIXTO
SALUMBIDES, respondents.
CONCEPCION, JR., J.:
Review on certiorari of the decision of the respondent appellate
court in case CA-G. R. No. SP-01869, entitled: " Horacio Luna, et al.,
petitioners, versus Hon. Roque A. Tamayo, etc., et al., respondents, "
which affirmed an order denying a motion to restrain the execution
of a final judgment rendered in a habeas corpus case.
The records of the case show that the herein private respondent
Maria Lourdes Santos is an illegitimate child of the petitioner
Horacio Luna who is married to his co-petitioner Liberty Hizon-Luna.
Maria Lourdes Santos is married to her correspondent Sixto
Salumbides, and are the parents of Shirley Santos Salumbides, also
known as Shirley Luna Salumbides, who is the subject of this child
custody case.
It appears that two or four months after the birth of the said Shirley
Salumbides on April 7, 1975, her parents gave her to the petitioners,
a childless couple with considerable means, who thereafter
showered her with love and affection and brought her up as their
very own. The couple doted upon Shirley who called them "Mama"
and "Papa". She calls her natural parents "Mommy" and "Daddy."
When Shirley reached the age of four (4) years in 1979, she was
enrolled at the Maryknoll College in Quezon City, where she is now
in Grade I I I.
A few months before September, 1980, her "Mama" and "Papa"
decided to take Shirley abroad and show her Disneyland and other
places of interest in America. Shirley looked forward to this trip and
was excited about it. However, when the petitioners asked for the The execution of the judgment was vigorously opposed by the
respondents' written consent to the child's application for a U.S. petitioners who filed a motion for the reconsideration of the order
visa, the respondents refused to give it, to the petitioners' surprise and to set aside the writ of execution on the ground of supervening
and chagrin Shirley was utterly disappointed. As a result, the events and circumstances, more particularly, the subsequent
petitioners had to leave without Shirley whom they left with the emotional, psychological, and physiological condition of the child
private respondents, upon the latter's request. The petitioners, Shirley which make the enforcement of the judgment sought to be
however, left instructions with their chauffeur to take and fetch executed unduly prejudicial, unjust and unfair, and cause
Shirley from Maryknoll College every school day. irreparable damage to the welfare and interests of the child. By
reason thereof, the respondent judge called a conference among
When the petitioners returned on October 29, 1980, they learned the parties and their counsels, and conducted hearings on the
that the respondents had transferred Shirley to the St. Scholastica petitioners' motion for reconsideration and to set aside the writ of
College. The private respondents also refused to return Shirley to execution. Shirley made manifest during the hearing that she would
them. Neither did the said respondents allow Shirley to visit the kill herself or run away from home if she should ever be separated
petitioners. In view thereof, the petitioners filed a petition for from her Mama and Papa, the petitioners herein, and forced to stay
with the respondents. A portion of her testimony is quoted
habeas corpus with the Court of First Instance of Rizal, Branch XV,
against the private respondents to produce the person of Shirley hereunder:
and deliver her to their care and custody. The case was docketed in
court as Spec. Proc. No. 9417, and after the filing of an answer and ATTY. CASTRO:
due hearing, a decision was rendered on March 9, 1981, declaring
the petitioners entitled to the child's custody and forthwith granted xxx xxx xxx
the writ prayed for.
Q Would you want to have with
The private respondents appealed to the then Court of Appeals your daddy and mommy,
where the case was docketed as CA-G.R. No. SP-12212, and in a referring to Sixto Salumbides
decision dated April 7, 1982, the appealed decision was reversed and Maria Lourdes Salumbides
and set aside and another entered, ordering the petitioners, among
other things, to turn over Shirley to the private respondents. The A No, sir.
herein petitioners filed a motion for the reconsideration of the
decision but their motion was denied.
Q Why not?
Consequently, the petitioners filed a petition for review of the
A Because they are cruel to me.
decision of the appellate court. The case was docketed herein as
They always spank me and they
G.R. No. 60860 and on November 10, 1982, this Court, in a minute
do not love me. Whenever I am
resolution, denied the petition for lack of merit.
eating, they are not attending to
me. It is up to me whether I like
Upon finality of the judgment, the case was remanded to the court the food or not.
of origin and assigned to Regional Trial Court, NCJR Branch CXXXII
Makati, Metro Manila, presided over by respondent Judge Roque A.
xxx xxx xxx
Tamayo who, thereafter, issued an order directing the issuance of a
writ of execution to satisfy and enforce the resolution of the
Q Now, if you will be taken from
Supreme Court which affirmed the decision of the Court of Appeals.
your papa and mama (Luna
spouses) and given to your
daddy and mommy (Salumbides
 spouses), what would you do if
you will do anything?
A I will either kill myself or I will
escape. Even now they said they
love me. I don't believe them. I
know they are not sincere. They
are only saying that to me. And I
know those words were not
coming from their hearts. If they
will get me from my papa and
mama, they will be hurt because
they know that my papa and
mama love me very much. 1
Dra. Cynthia Dulay Bruce, a child psychologist, affirmed her findings
that —
... She (Shirley) has only grown more embittered,
cautions, distrusting of her biological parents. She
threatens to kill herself or run away if given to her
biological parents. She claims she would be very
unhappy with her biological parents since they do
not understand her needs are selfish to her, and
don't know how to care for her. Presently, she is
very difficult to encourage in seeing her biological
parents in a different light. 2
and that —
... I reviewed with them (Salumbides spouse) that
at the present time, to get Shirley back in this
emotionally charged transaction, would hinder
Shirley seeing them as truly loving and concerned
parents. She would more deeply distrust them if
they uproot her from the home of the choice of
Mr. and Mrs. Luna. The biological parents wish to
do what is also helpful to Shirley. I discussed with
both parties the recommendations of placement
and follow up. 3
But, the respondent judge denied the petitioners' motion to set
aside the writ of execution The petitioners filed a motion for the
reconsideration of the order and when it was denied, they filed a
petition for certiorari and prohibition with preliminary injunction
and restraining order with the respondent Intermediate Appellate
Court, which was docketed therein as CA-G.R. No. SP-01869, to stop
altogether the execution of the decision of the Court of Appeals
rendered in CA-G.R. No. SP-12212. The petition was duly heard,
after which a decision was rendered on May 25, 1984, dismissing
the petition, Hence, the present recourse.
The issue is whether or not procedural rules more particularly the
duty of lower courts to enforce a final decision of appellate courts in
child custody cases, should prevail over and above the desire and
preference of the child, to stay with her grandparents instead of her
biological parents and who had signified her intention Up kill herself
or run away from home if she should be separated from her
grandparents and forced to live with her biological parents.
It is a well-known doctrine that when a judgment of a higher court is
returned to the lower court, the only function of the latter court is
the ministerial one of issuing the order of execution. The lower
court cannot vary the mandate of the superior court, or examine it,
for any other purpose than execution; nor review it upon any matter
decided on appeal or error apparent; nor intermeddle with it further
than to settle so much as has been demanded. However, it is also
equally well-known that a stay of execution of a final judgment may
be authorized whenever it is necessary to accomplish the ends of
justice as when there had been a change in the situation of the
parties which makes such execution inequitable; or when it appears
that the controversy had never been submitted to the judgment of
the court; or when it appears that the writ of execution has been
improvidently issued; or that it is defective in substance; or is issued
against the wrong party; or that the judgement debt has been paid
or otherwise satisfied; or when the writ has been issued without
authority.
In the instant case, the petitioners claim that the child's
manifestation to the trial court that she would kill herself or run
away from home if she should be forced to live with the private
respondents is a supervening event that would justify the
cancellation of the execution of the final decision rendered by the
Court of Appeals in CA-G.R. No. SP-12212. The respondents, upon
the other hand, maintain that there are no supervening
developments and circumstances since these events are not new as
the Court of Appeals had taken into account the physiological and
emotional consideration of the transfer of custody of Shirley when it
reversed the decision of the trial court and gave to the private
respondents the custody of the child Shirley; and besides, the
wishes and desires of the child is no hindrance to the parents' right
to her custody since the right of the parents to the custody of their
children paramount.
We find merit in the petitioner. The manifestation of the child
Shirley that she would kill herself or run away from home if she
should be taken away from the herein petitioners and forced to live
with the private respondents, made during the hearings on the
petitioners' motion to set aside the writ of execution and reiterated
in her letters to the members of the Court dated September 19,
1984 4 and January 2, 1985, 5 and during the hearing of the case
before this Court, is a circumstance that would make the execution
of the judgment rendered in Spec. Proc. No. 9417 of the Court of
First Instance of Rizal inequitable, unfair and unjust, if not illegal.
Article 363 of the Civil Code provides that in all questions relating to
the care, custody, education and property of the children, the
latter's welfare is paramount. This means that the best interest of
the minor can override procedural rules and even the rights of
parents to the custody of their children. Since, in this case, the very
life and existence of the minor is at stake and the child is in an age
when she can exercise an intelligent choice, the courts can do no
less than respect, enforce and give meaning and substance to that
choice and uphold her right to live in an atmosphere conducive to
her physical, moral and intellectual development. 6 The threat may
be proven empty, but Shirley has a right to a wholesome family life
that will provide her with love, care and understanding, guidance
and counseling. and moral and material security. 7 But what if the
threat is for real.?
Besides, in her letters to the members of the Court, Shirley depicted
her biological parents as selfish and cruel and who beat her often;
and that they do not love her. And, as pointed out by the child
psychologist, Shirley has grown more embitered cautious and
dismissing of her biological parents. To return her to the custody of
the private respondents to face the same emotional environment
which she is now complaining of would be indeed traumatic and
cause irreparable damage to the child. As requested by her, let us
not destroy her future.
WHEREFORE, the petition should be, as it is hereby GRANTED and
the writ prayed for issued, setting aside the judgment of the
respondent Intermediate Appellate Court in CA-G.R. No. SP-01869,
and restraining the respondent judge and/or his successors from
enforcing the judgment rendered by the Court of Appeals in CA-G.R.
No. SP-12212. entitled: "Horacio Luna and Liberty Hizon-Luna,
petitioners-appellees, versus Maria Lourdes Santos and Sixto
Salumbides, respondents-appellants." The decision rendered in
Spec. Proc. No. 9417 of the Court of First Instance of Rizal granting
the herein petitioners custody of the child Shirley Salumbides should
be maintained. Without costs. SO ORDERED.
Abad Santos, Escolin and Cuevas, JJ., concur.
Separate Opinions
AQUINO, J., concurring:
A judgment for the custody of the child, like a judgment for support
is not final and irrevocable. The welfare of the child is the
paramount consideration. It would be for Shirley's welfare to remain
in the custody of the petitioners.
MAKASIAR, J., dissenting:
The resolution of the issue on who should have custody over the
nine-year old girl has been viewed from a limited approach. The
majority opinion has been focused more on the personal
assessment of the child rather than on the general and specific laws
and jurisprudence that should govern this case. A nine-year old
child, brainwashed by the material luxury as well as constant
attention showered on her by doting grandparents, cannot possibly
appreciate the incomparable love and solicitude her natural parents
have for her always, in good or bad times.
The determination, therefore, as to whose custody the child belongs
must necessarily and initially involve the question of parental
authority. it appears that the law on parental authority has been
conveniently side tracked by petitioners.
Parental authority, known in Roman law as patria potestas, is
defined as "the mass of rights and obligations which parents have in
relation to the person and property of their children until their
majority age or emancipation, and even after this under certain
circumstances" (2 Manresa 8, cited in p. 657, Comments &
Jurisprudence on the Civil Code, Tolentino, Vol. 1, 1983 ed.).
The following Civil Code provisions thus provide:
Art. 311. The father and mother jointly exercise
parental authority over their legitimate children.
who are not emancipated, In case of
disagreement, the father's decision shall prevail,
unless there
xxx xxx xxx
Art, 313. Parental authority cannot be renounced
or transfer- red, except in cases of guardianship or
adoption approved by 'the courts, or
emancipation by concession (par. 1).
Significantly, the stern pronouncements of this Court in the case
of Celis vs. Cafuir (L-3352, June 12, 1950, 86 Phil. 554) are very much
in point. This Court thus declared:
The word "entrusted" cannot convey the Idea of
definite and permanent renounciation of the
mother's custody of her child.
xxx xxx xxx
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 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 turn out to be a failure or
forgetful of what its foster parents had done for
him, said parents might yet count and appraise 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.
xxx xxx xxx
Whether a child should stay permanently with a
kindly stranger or with his own mother, is not to
be determined alone by considerations of
affluence or poverty, Poor youths who had to
work their way thru school and college, have, not
infrequently, scaled the heights of success, as
easily and swiftly as their more favored
companions, and done so with more, inner
satisfaction, and credit to themselves and their
humble parents.
The guardianship or custody which parents exercise over -heir
children is well-entrenched in this jurisdiction. Thus, in the case
of Reyes vs. Alvarez (8 Phil. 725), this Court declared:
The guardianship which parents exercise over
their children by the virtue of the paternal
authority granted them by law has for its purpose
their physical development, the cultivation of their
intelligence, and the development of their
 intellectual and sensitive faculties. For such
purposes they are entitled to control their children
and to keep them in their company in order to
properly comply with their paternal obligations,
but it is also their duty to furnish them with a
dwelling or a place where they may live together.
This Court has long recognized that "the right attached to parental
authority is a purely personal one, and it is extinguished upon the
death of the parent exercising it" (Abiera vs. Orin, 8 Phil. 193),
Custody embraces the sum of parental rights with respect to the
rearing of a child, including his care. It includes 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 (p. 107, 59 Am. Jur. 2d.).
The right of the parents to the custody of their minor children is one
of the natural rights incident to parenthood a right supported by law
and sound public policy. The right is an inherent one, which is not
created by the state or by the decision is of the courts, but derives
from the nature of parental relationship. Since the rights of parents
to the custody of their minor children is both a natural and a legal
right, the law could not disturb the parent-child relationship except
for the strongest reasons, and only upon a clear showing of a
parent's gross misconduct or unfitness, or of other extraordinary
circumstances affecting the welfare of the child (pp. 107 & 108, 59
Am. Jur. 2d.)
Article 363 orders that 'No mother shall be
separated from her child under seven years of age,
unless the court finds compelling reasons for such
measure.' One of the cruelest acts in the world is
to separate a mother from her baby. This was
often done in case of adultery by the mother, and
the court ordered that the custody of the child
should be given to the father, but the new article
provides otherwise because the mother's
maternal love-than which there is nothing greater
in this life-should be respected. Besides, she could
not exert a bad influence on a baby. And lastly,
perhaps the presence of her child will often
redeem her (p. 199, The Father of the First Brown
Race Civil Code, Rivera, 1978 Ed.).
As long as the parents are living and they have not lost their
parental authority, patria potestas is limited to them. Other
ascendants have no authority over the children, even if the parents
of the latter are minors (2 Manresa 13, cited in p. 661, Comments
and Jurisprudence on the Civil Code, Tolentino, Vol. 1, 1983 Ed.).
Parental authority is inalienable and every abdication of this
authority by the parents is void Planiol and Ripert 324, p. 664, Ibid.).
Whatever agreement or arrangement there was between
petitioners and respondents when the child Shirley was given to the
former, the same has not been validated nor legalized by the mere
fact that the said girl had stayed with the petitioners for a number
of years, in view of the explicit provision of Article 313 mandating
that parental authority cannot be renounced or transferred, except
in cases of guardianship or adoption approved by the courts, or
emancipation by concession.
Thus, the mother in case of separation, cannot by agreement vest
the custody of a child in the maternal grandmother as against the
father (Mason vs. Williams, 165 Ky 331, 176 S.W. 1171, cited in p.
662, Comments and Jurisprudence on the Civil Code, Tolentino, Vol.
1, 1983 Ed.).
Some United States courts have consistently ruled that since
children cannot be bought and sold, and since the parent is subject
to obligations which he cannot throw off by any act of his own,
agreements by which the parents, or one of them, transfer custody
of a child to a third person, with the provision or informal
understanding that custody will not be reclaimed, are not generally
considered legally binding contracts, unless they amount to
statutory indentures of apprenticeship, or are supported by other
express statutory provisions. This is especially true in the case of a
parent who, having been compelled by poverty or unfavorable
circumstances to surrender the custody of his child, wishes to
reclaim it when circumstances are improved (p. 117, 59 Am. Jur. 2d.)
For this Court to award custody over Shirley to petitioners primarily
on the basis of her reaction and choice would run counter to
existing law and jurisprudence as already aforestated.
A nine-year old girl, although already at the age of discernment, is
not capable of knowing or defining varied feelings like love, anger or
cruelty when such a girl has been exposed to two contrasting
conditions, the first for more than eight years and he second, for
barely four months. The child grew up amidst affluent surroundings
the grandparents being well-off. The lolo and lola, as
most lolos and lolas are, doted over Shirley. In fact, she attended
Maryknoll College, a school for the elite and rode in a chauffeur-
driven car. She grew up amidst a luxurious atmosphere. Perhaps, in
their own way of loving their granddaughter, they showered her
with all material needs and pampered her. Thus, the child had not
been made to experience disappointments, much less hardships.
Life with her lolo and lola meant having what she wanted. In the
process, Shirley moved about in a limited world, created by her
Mama (Lola) and Papa (Lolo) world felt and seen through rose-
colored lenses. The child addresses her natural parents as "Daddy"
and "Mommy".
Then all of a sudden, the scenario is changed and the girl finds
herself in a very contrasting situation, Having been used to the life
style offered by her grandparents and having thus absorbed a set of
values different from the average and ordinary, she now finds life
with her natural parents harsh and unbearable. With the luxurious
life she had with petitioners at the back of her mind, she would
naturally look at things in the respondent's home differently and
partially.
Four months is too insufficient a time for a nine-year old girl to
comprehend and accept a home atmosphere striking distinct from
one where she had lived for more than eight years. Four months is a
very short time for the child to be able to understand, to absorb and
to appreciate two vastly different home conditions. Whatever set of
values the second home has to offer, the same cannot settle in a
child for only four months' exposure. To Shirley, therefore, any
attempted discipline imposed her natural parents means cruelty and
lack of affection for her. Where before she could choose the food
she wanted, now she has to take whatever food is available within
the limited means of her parents. She cannot realize that in a
middle-class family, the choice of food is restricted by the amount
appropriated therefor. The gauge is what and how much food could
benefit all the members of the household and not just one member.
Choice for particular needs becomes secondary to what the family
budget can afford for the entire family. This explains why Shirley
had a dislike for the conditions existing in respondents' house which
did not cater to her tastes.
In her answers to the questions which are quite leading, one can
clearly sense that Shirley, who was used to having all the lavish care
and attention from petitioners, reacted negatively to her natural
parents whose ways are so different from the former. It would take
some more time and exposure for Shirley to be able to really say
that respondents do not love and care for her. She would have been
given more time in respondent's home to allow whatever values
such place can offer to settle in her mind. It was unfair for
petitioners to push Shirley into a choice — a decision which a nine-
year old girl could not have made intelligently without undue
pressure and played-up emotionalism.
It must be noted with concern that Article 312 of the Civil Code
clearly defines the specific and limited role of grandparents when it
states that "grandparents shall be consulted by all members of the
family on all important family questions." This has been interpreted
to mean that as long as the parents are living, grandparents and
other ascendants have no authority over the children, even when
the parents are minors. Grandparents, therefore, cannot question
the form of instruction or education chosen by the parents for the
children. The grandparents can only advise and counsel the children.
But if the parents are dead or are absent, then the grandparents
shall exercise parental authority over the children (Article 354, p.
663, Comments and Jurisprudence on the Civil Code, Tolentino,
1983 Ed.).
Evidently, the present petition for custody of petitioners runs
counter to the parental preference rule. Under the so-called
parental preference rule, a natural parent, father or mother, as the
case may be, who is of good character and a proper person to have
the custody of the child and is reasonably able to provide for such
child, ordinarily is entitled to the custody as against all persons.
Accordingly, such parents are entitled to the custody of their
children as against foster or prospective adoptive parents: and such
entitlement applies also as against other, relatives of the child,
including grandparents, or as against an agency or institution (pp.
207 & 208, Vol. 67A C.J.S.).
It has been an established rule that the preference of a child is only
one factor to be considered, and it is not controlling, decisive, or
determinative. Thus, notwithstanding the preference, the court has
a discretion to determine the question of custody, and it is not error
for the court to refuse to discuss the custody issue with the child,
The rights of a parent will not be disregarded in order to gratify the
mere wishes of a child where a parent is found to be a proper
person to be entrusted with the custody of a child (pp. 231-232, Vol.
67A C.J.S.).
In view of the foregoing, and considering that herein respondents
have not been shown to be unfit or unsuitable or financially
incapable of keeping and caring for Shirley, the latter's custody
should be awarded to said respondents.
Separate Opinions
AQUINO, J., concurring:
A judgment for the custody of the child, like a judgment for support
is not final and irrevocable. The welfare of the child is the
paramount consideration. It would be for Shirley's welfare to remain
in the custody of the petitioners.
MAKASIAR, J., dissenting:
The resolution of the issue on who should have custody over the
nine-year old girl has been viewed from a limited approach. The
majority opinion has been focused more on the personal
assessment of the child rather than on the general and specific laws
and jurisprudence that should govern this case. A nine-year old
child, brainwashed by the material luxury as well as constant
attention showered on her by doting grandparents, cannot possibly
appreciate the incomparable love and solicitude her natural parents
have for her always, in good or bad times.
The determination, therefore, as to whose custody the child belongs
must necessarily and initially involve the question of parental
authority. it appears that the law on parental authority has been
conveniently side tracked by petitioners.
Parental authority, known in Roman law as patria potestas, is
defined as "the mass of rights and obligations which parents have in
relation to the person and property of their children until their
majority age or emancipation, and even after this under certain
circumstances" (2 Manresa 8, cited in p. 657, Comments &
Jurisprudence on the Civil Code, Tolentino, Vol. 1, 1983 ed.).
The following Civil Code provisions thus provide:
Art. 311. The father and mother jointly exercise
parental authority over their legitimate children.
who are not emancipated, In case of
disagreement, the father's decision shall prevail,
unless there
xxx xxx xxx
Art, 313. Parental authority cannot be renounced
or transfer- red, except in cases of guardianship or
adoption approved by 'the courts, or
emancipation by concession (par. 1).
Significantly, the stern pronouncements of this Court in the case
of Celis vs. Cafuir (L-3352, June 12, 1950, 86 Phil. 554) are very much
in point. This Court thus declared:
The word "entrusted" cannot convey the Idea of
definite and permanent renounciation of the
mother's custody of her child.
xxx xxx xxx
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 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 turn out to be a failure or
forgetful of what its foster parents had done for
him, said parents might yet count and appraise 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.
xxx xxx xxx
Whether a child should stay permanently with a
kindly stranger or with his own mother, is not to
be determined alone by considerations of
affluence or poverty, Poor youths who had to
work their way thru school and college, have, not
infrequently, scaled the heights of success, as
easily and swiftly as their more favored
companions, and done so with more, inner
satisfaction, and credit to themselves and their
humble parents.
The guardianship or custody which parents exercise over -heir
children is well-entrenched in this jurisdiction. Thus, in the case
of Reyes vs. Alvarez (8 Phil. 725), this Court declared:
The guardianship which parents exercise over
their children by the virtue of the paternal
authority granted them by law has for its purpose
their physical development, the cultivation of their
intelligence, and the development of their
intellectual and sensitive faculties. For such
purposes they are entitled to control their children
and to keep them in their company in order to
properly comply with their paternal obligations,
but it is also their duty to furnish them with a
dwelling or a place where they may live together.
This Court has long recognized that "the right attached to parental
authority is a purely personal one, and it is extinguished upon the
death of the parent exercising it" (Abiera vs. Orin, 8 Phil. 193),
Custody embraces the sum of parental rights with respect to the
rearing of a child, including his care. It includes 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 (p. 107, 59 Am. Jur. 2d.).
The right of the parents to the custody of their minor children is one
of the natural rights incident to parenthood a right supported by law
and sound public policy. The right is an inherent one, which is not
created by the state or by the decision is of the courts, but derives
from the nature of parental relationship. Since the rights of parents
to the custody of their minor children is both a natural and a legal
right, the law could not disturb the parent-child relationship except
for the strongest reasons, and only upon a clear showing of a
parent's gross misconduct or unfitness, or of other extraordinary
circumstances affecting the welfare of the child (pp. 107 & 108, 59
Am. Jur. 2d.)
Article 363 orders that 'No mother shall be
separated from her child under seven years of age,
unless the court finds compelling reasons for such
measure.' One of the cruelest acts in the world is
to separate a mother from her baby. This was
often done in case of adultery by the mother, and
the court ordered that the custody of the child
should be given to the father, but the new article
provides otherwise because the mother's
maternal love-than which there is nothing greater
in this life-should be respected. Besides, she could
not exert a bad influence on a baby. And lastly,
perhaps the presence of her child will often
redeem her (p. 199, The Father of the First Brown
Race Civil Code, Rivera, 1978 Ed.).
As long as the parents are living and they have not lost their
parental authority, patria potestas is limited to them. Other
ascendants have no authority over the children, even if the parents
of the latter are minors (2 Manresa 13, cited in p. 661, Comments
and Jurisprudence on the Civil Code, Tolentino, Vol. 1, 1983 Ed.).
Parental authority is inalienable and every abdication of this
authority by the parents is void Planiol and Ripert 324, p. 664, Ibid.).
Whatever agreement or arrangement there was between
petitioners and respondents when the child Shirley was given to the
former, the same has not been validated nor legalized by the mere
fact that the said girl had stayed with the petitioners for a number
of years, in view of the explicit provision of Article 313 mandating
that parental authority cannot be renounced or transferred, except
in cases of guardianship or adoption approved by the courts, or
emancipation by concession.
Thus, the mother in case of separation, cannot by agreement vest
the custody of a child in the maternal grandmother as against the
father (Mason vs. Williams, 165 Ky 331, 176 S.W. 1171, cited in p.
662, Comments and Jurisprudence on the Civil Code, Tolentino, Vol.
1, 1983 Ed.).
Some United States courts have consistently ruled that since
children cannot be bought and sold, and since the parent is subject
to obligations which he cannot throw off by any act of his own,
agreements by which the parents, or one of them, transfer custody
of a child to a third person, with the provision or informal
understanding that custody will not be reclaimed, are not generally
considered legally binding contracts, unless they amount to
statutory indentures of apprenticeship, or are supported by other
express statutory provisions. This is especially true in the case of a
parent who, having been compelled by poverty or unfavorable
circumstances to surrender the custody of his child, wishes to
reclaim it when circumstances are improved (p. 117, 59 Am. Jur. 2d.)
For this Court to award custody over Shirley to petitioners primarily
on the basis of her reaction and choice would run counter to
existing law and jurisprudence as already aforestated.
A nine-year old girl, although already at the age of discernment, is
not capable of knowing or defining varied feelings like love, anger or
cruelty when such a girl has been exposed to two contrasting
conditions, the first for more than eight years and he second, for
barely four months. The child grew up amidst affluent surroundings
the grandparents being well-off. The lolo and lola, as
most lolos and lolas are, doted over Shirley. In fact, she attended
Maryknoll College, a school for the elite and rode in a chauffeur-
driven car. She grew up amidst a luxurious atmosphere. Perhaps, in
their own way of loving their granddaughter, they showered her
with all material needs and pampered her. Thus, the child had not
been made to experience disappointments, much less hardships.
Life with her lolo and lola meant having what she wanted. In the
process, Shirley moved about in a limited world, created by her
Mama (Lola) and Papa (Lolo) world felt and seen through rose-
colored lenses. The child addresses her natural parents as "Daddy"
and "Mommy".
Then all of a sudden, the scenario is changed and the girl finds
herself in a very contrasting situation, Having been used to the life
style offered by her grandparents and having thus absorbed a set of
values different from the average and ordinary, she now finds life
with her natural parents harsh and unbearable. With the luxurious
life she had with petitioners at the back of her mind, she would
naturally look at things in the respondent's home differently and
partially.
Four months is too insufficient a time for a nine-year old girl to
comprehend and accept a home atmosphere striking distinct from
one where she had lived for more than eight years. Four months is a
very short time for the child to be able to understand, to absorb and
to appreciate two vastly different home conditions. Whatever set of
values the second home has to offer, the same cannot settle in a
child for only four months' exposure. To Shirley, therefore, any
attempted discipline imposed her natural parents means cruelty and
lack of affection for her. Where before she could choose the food
she wanted, now she has to take whatever food is available within
the limited means of her parents. She cannot realize that in a
middle-class family, the choice of food is restricted by the amount
appropriated therefor. The gauge is what and how much food could
benefit all the members of the household and not just one member.
Choice for particular needs becomes secondary to what the family
budget can afford for the entire family. This explains why Shirley
had a dislike for the conditions existing in respondents' house which
did not cater to her tastes.
In her answers to the questions which are quite leading, one can The rights of a parent will not be disregarded in order to gratify the
clearly sense that Shirley, who was used to having all the lavish care mere wishes of a child where a parent is found to be a proper
and attention from petitioners, reacted negatively to her natural person to be entrusted with the custody of a child (pp. 231-232, Vol.
parents whose ways are so different from the former. It would take 67A C.J.S.).
some more time and exposure for Shirley to be able to really say
that respondents do not love and care for her. She would have been In view of the foregoing, and considering that herein respondents
given more time in respondent's home to allow whatever values have not been shown to be unfit or unsuitable or financially
such place can offer to settle in her mind. It was unfair for incapable of keeping and caring for Shirley, the latter's custody
petitioners to push Shirley into a choice — a decision which a nine- should be awarded to said respondents.
year old girl could not have made intelligently without undue
pressure and played-up emotionalism.
It must be noted with concern that Article 312 of the Civil Code
clearly defines the specific and limited role of grandparents when it
states that "grandparents shall be consulted by all members of the
family on all important family questions." This has been interpreted
to mean that as long as the parents are living, grandparents and
other ascendants have no authority over the children, even when
the parents are minors. Grandparents, therefore, cannot question
the form of instruction or education chosen by the parents for the
children. The grandparents can only advise and counsel the children.
But if the parents are dead or are absent, then the grandparents
shall exercise parental authority over the children (Article 354, p.
663, Comments and Jurisprudence on the Civil Code, Tolentino,
1983 Ed.).
Evidently, the present petition for custody of petitioners runs
counter to the parental preference rule. Under the so-called
parental preference rule, a natural parent, father or mother, as the
case may be, who is of good character and a proper person to have
the custody of the child and is reasonably able to provide for such
child, ordinarily is entitled to the custody as against all persons.
Accordingly, such parents are entitled to the custody of their
children as against foster or prospective adoptive parents: and such
entitlement applies also as against other, relatives of the child,
including grandparents, or as against an agency or institution (pp.
207 & 208, Vol. 67A C.J.S.).
It has been an established rule that the preference of a child is only
one factor to be considered, and it is not controlling, decisive, or
determinative. Thus, notwithstanding the preference, the court has
a discretion to determine the question of custody, and it is not error
for the court to refuse to discuss the custody issue with the child,
THIRD DIVISION "The [respondent] court/Judge is hereby directed to consider, hear
and resolve [petitioner’s] motion to lift the award of
G.R. No. 154994 June 28, 2005 custody pendente lite of the child to [respondent]."3
JOYCELYN PABLO-GUALBERTO, petitioner, The second is a Petition for Certiorari4 filed by Crisanto Rafaelito
vs. Gualberto V under Rule 65 of the Rules of Court, charging the
CRISANTO RAFAELITO GUALBERTO V, respondent. appellate court with grave abuse of discretion for denying his
Motion for Partial Reconsideration of the August 30, 2002 Decision.
x - - - - - - - - - - - - - - - - - - - - - - -x The denial was contained in the CA’s November 27, 2002
Resolution, which we quote:
G.R. No. 156254 June 28, 2005
"We could not find any cogent reason why the [last part of the
dispositive portion of our Decision of August 30, 2002] should be
CRISANTO RAFAELITO G. GUALBERTO V, petitioner,
deleted, hence, subject motion is hereby DENIED."5
vs.
COURT OF APPEALS; Hon. HELEN B. RICAFORT, Presiding Judge,
Regional Trial Court Parañaque City, Branch 260; and JOYCELYN D. The Facts
PABLO-GUALBERTO, respondents.
The CA narrated the antecedents as follows:
DECISION
"x x x [O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto V] filed
before [the Regional Trial Court of Parañaque City] a petition for
PANGANIBAN, J.:
declaration of nullity of his marriage to x x x Joycelyn D. Pablo
Gualberto, with an ancillary prayer for custody pendente lite of their
When love is lost between spouses and the marriage inevitably
almost 4-year-old son, minor Rafaello (the child, for brevity), whom
results in separation, the bitterest tussle is often over the custody of
[Joycelyn] allegedly took away with her from the conjugal home and
their children. The Court is now tasked to settle the opposing claims
his school (Infant Toddler’s Discovery Center in Parañaque City)
of the parents for custody pendente lite of their child who is less
when [she] decided to abandon [Crisanto] sometime in early
than seven years of age. There being no sufficient proof of any
February 2002[.] x x x [O]n April 2, 2002, [RTC Judge Helen B.
compelling reason to separate the minor from his mother, custody
Ricafort] heard the ancillary prayer of [Crisanto] for
should remain with her.
custody pendente lite. x x x [B]ecause [Joycelyn] allegedly failed to
appear despite notice, [Crisanto], a certain Col. Renato Santos, and
The Case
Ms. Cherry Batistel, testified before the x x x Judge; x x x
documentary evidence [was] also presented[.] x x x [O]n April 3,
Before us are two consolidated petitions. The first is a Petition for 2002, x x x [the] Judge awarded custody pendente lite of the child to
Review1 filed by Joycelyn Pablo-Gualberto under Rule 45 of the [Crisanto.] [T]he Order partly read x x x:
Rules of Court, assailing the August 30, 2002 Decision2 of the Court
of Appeals (CA) in CA-GR SP No. 70878. The assailed Decision
‘x x x Crisanto Rafaelito Gualberto V testified. He stated that
disposed as follows: [Joycelyn] took their minor child with her to Caminawit, San Jose,
Occidental Mindoro. At that time, the minor was enrolled at B.F.
"WHEREFORE, premises considered, the Petition for Certiorari is Homes, Parañaque City. Despite effort[s] exerted by him, he has
hereby GRANTED. The assailed Order of May 17, 2002 is hereby SET failed to see his child. [Joycelyn] and the child are at present staying
ASIDE and ANNULLED. The custody of the child is hereby ordered with the former’s step-father at the latter’s [residence] at
returned to [Crisanto Rafaelito G. Gualberto V]. Caminawit, San Jose, Occidental Mindoro.
‘Renato Santos, President of United Security Logistic testified that
he was commissioned by [Crisanto] to conduct surveillance on
[Joycelyn] and came up with the conclusion that [she] is having
lesbian relations with one Noreen Gay Cuidadano in Cebu City.
‘The findings of Renato Santos [were] corroborated by Cherry
Batistel, a house helper of the spouses who stated that [the mother]
does not care for the child as she very often goes out of the house
and on one occasion, she saw [Joycelyn] slapping the child.
‘Art. 211 of the Family Code provides as follows:
‘The father and the mother shall jointly exercise parental authority
over the persons of their children. In the case of disagreement, the
father’s decision shall prevail, unless there is a judicial order to the
contrary.’
‘The authority of the father and mother over their children is
exercised jointly. This recognition, however, does not place her in
exactly the same place as the father; her authority is subordinated
to that of the father.
‘In all controversies regarding the custody of minors, the sole and
foremost consideration is the physical, educational, social and moral
welfare of the child, taking into account the respective resources
and social and moral situations of the contending parties.
‘The Court believes that [Joycelyn] had no reason to take the child
with her. Moreover, per Sheriff returns, she is not with him at
Caminawit, San Jose, Occidental Mindoro.
‘WHEREFORE, pendente lite, the Court hereby awards custody of
the minor, Crisanto Rafaello P. Gualberto X to his father, Crisanto
Rafaelito G. Gualberto V.’
"x x x [O]n April 16, 2002, the hearing of [Joycelyn’s] motion to lift
the award of custody pendente lite of the child to [Crisanto] was set
but the former did not allegedly present any evidence to support
her motion. However, on May 17, 2002, [the] Judge allegedly issued
the assailed Order reversing her Order of April 3, 2002 and this time
awarding custody of the child to [Joycelyn]. [T]he entire text of the
Order [is] herein reproduced, to wit:
‘Submitted is [Crisanto’s] Motion to Resolve Prayer for
Custody Pendente Lite and [Joycelyn’s] Motion to Dismiss and the
respective Oppositions thereto.
‘[Joycelyn], in her Motion to Dismiss, makes issue of the fact that
the person referred to in the caption of the Petition is one JOCELYN
Pablo Gualberto and not Joycelyn Pablo Gualberto. [Joycelyn] knows
she is the person referred to in the Complaint. As a matter of fact,
the body of the Complaint states her name correct[ly]. The law is
intended to facilitate and promote the administration of justice, not
to hinder or delay it. Litigation should be practicable and
convenient. The error in the name of Joycelyn does not involve
public policy and has not prejudiced [her].
‘This case was filed on March 12, 2002. Several attempts were made
to serve summons on [Joycelyn] as shown by the Sheriff’s returns. It
appears that on the 4th attempt on March 21, 2002, both Ma. Daisy
and x x x Ronnie Nolasco, [Joycelyn’s mother and stepfather,
respectively,] read the contents of the documents presented after
which they returned the same.lawphil.net
‘The Court believes that on that day, summons was duly served and
this Court acquired jurisdiction over [Joycelyn].
‘The filing of [Joycelyn’s annulment] case on March 26, 2002 was an
after thought, perforce the Motion to [D]ismiss should be denied.
‘The child subject of this Petition, Crisanto Rafaello P. Gualberto is
barely four years old. Under Article 213 of the Family Code, he shall
not be separated from his mother unless the Court finds compelling
reasons to order otherwise. The Court finds the reason stated by
[Crisanto] not [to] be compelling reasons.1avvphil.zw+ The father
should however be entitled to spend time with the minor. These do
not appear compelling reasons to deprive him of the company of his
child.
‘When [Joycelyn] appeared before this Court, she stated that she
has no objection to the father visiting the child even everyday
provided it is in Mindoro.
‘The Court hereby grants the mother, [Joycelyn], the custody of
Crisanto Rafaello P. Gualberto, with [the] right of [Crisanto] to have
the child with him every other weekend.
‘WHEREFORE:
1. The [M]otion to Dismiss is hereby DENIED;
2. Custody pendente lite is hereby given to the mother
Joycelyn Pablo Gualberto with the right of the father, x x x
[Crisanto], to have him every other week-end.
3. Parties are admonished not to use any other agencies of
the government like the CIDG to interfere in this case and
to harass the parties.’"6
In a Petition for Certiorari7 before the CA, Crisanto charged the
Regional Trial Court (Branch 260) of Parañaque City with grave
abuse of discretion for issuing its aforequoted May 17, 2002 Order.
He alleged that this Order superseded, without any factual or legal
basis, the still valid and subsisting April 3, 2002 Order awarding him
custody pendente lite of his minor son; and that it violated Section
14 of Article VII of the 1987 Constitution.
Ruling of the Court of Appeals
Partly in Crisanto’s favor, the CA ruled that grave abuse of discretion
had been committed by the trial court in reversing the latter court’s
previous Order dated April 3, 2002, by issuing the assailed May 17,
2002 Order. The appellate court explained that the only incident to
resolve was Joycelyn’s Motion to Dismiss, not the issuance of the
earlier Order. According to the CA, the prior Order awarding
provisional custody to the father should prevail, not only because it
was issued after a hearing, but also because the trial court did not
resolve the correct incident in the later Order.
Nonetheless, the CA stressed that the trial court judge was not
precluded from considering and resolving Joycelyn’s Motion to lift
the award of custody pendente lite to Crisanto, as that Motion had
yet to be properly considered and ruled upon. However, it directed
that the child be turned over to him until the issue was resolved.
Hence, these Petitions.8
Issues
In GR No. 154994, Petitioner Joycelyn submits these issues for our
consideration:
"1. Whether or not the Respondent Court of Appeals, when
it awarded the custody of the child to the father, violated
Art. 213 of the Family Code, which mandates that ‘no child
under seven years of age shall be separated from the
mother, unless the court finds compelling reasons to order
otherwise.’
"2. Is it Article 213 or Article 211 which applies in this case
involving four-year old Rafaello?"9
On the other hand, Crisanto raises the following issues:
"A. Did Respondent Court commit grave abuse of discretion
amounting to or in excess of jurisdiction when, in its August
30, 2002 Decision, it ordered respondent court/Judge ‘to
consider, hear and resolve the motion to lift award of
custody pendente lite of the child to petitioner and x x x
denied the motion for reconsideration thereof in its
November 27, 2002 Resolution, considering that: (1) there
is no such motion ever, then or now pending, with the
court a quo; (2) the November 27, 2002 Resolution is
unconstitutional; and (3) the April 3, 2002 Order of
respondent Judge, the validity of which has been upheld in
the August 30, 2002 Decision of the respondent Court, has
become final and executory; and
"B. Ought not the ancillary remedies [o]f habeas corpus,
because the whereabouts, physical and mental condition of
the illegally detained Minor Rafaello is now unknown to
petitioner and preliminary mandatory injunction with
urgent prayer for immediate issuance of preliminary
[injunction], petitioner having a clear and settled right to
custody of Minor Rafaello which has been violated and still
is being continuously violated by [petitioner Joycelyn], be
granted by this Honorable Court?"10
Being interrelated, the procedural challenges and the substantive
issues in the two Petitions will be addressed jointly.
The Court’s Ruling
There is merit in the Petition in GR No. 154994, but not in GR No.
156254.
Preliminary Issue:
The Alleged Prematurity of the Petition in GR No. 154994
Before going into the merits of the present controversy, the Court
shall first dispose of a threshold issue. In GR No. 154994, therein
Respondent Crisanto contends that the Petition for Review was filed
beyond the deadline (October 24, 2002) allowed by the Rules of
Court and by this Court. He claims that Registry Bill No. 88 shows
that the Petition was sent by speed mail, only on November 4, 2002.
Furthermore, he assails the Petition for its prematurity, since his
Motion for Partial Reconsideration of the August 30, 2002 CA
Decision was still pending before the appellate court. Thus, he
argues that the Supreme Court has no jurisdiction over Joycelyn’s
Petition.
Timeliness of the Petition
The manner of filing and service Joycelyn’s Petition by mail is
governed by Sections 3 and 7 of Rule 13 of the Rules of Court, which
we quote:
"SEC. 3. Manner of filing. – The filing of pleadings, appearances,
motions, notices, orders, judgments and all other papers shall be
made by presenting the original copies thereof, plainly indicated as
such personally to the clerk of court or by sending them by
registered mail. xxx In the second case, the date of mailing of
motions, pleadings and other papers or payments or deposits, as
shown by the post office stamp on the envelope or the registry
receipt, shall be considered as the date of their filing, payment, or
deposit in court. The envelope shall be attached to the records of
the case.
"x x x x x x x x x
"SEC. 7. Service by mail. – Service by registered mail shall be made
by depositing the copy in the office, in a sealed envelope, plainly
addressed to the party or his counsel at his office, if known,
otherwise at his residence, if known, with postage fully pre-paid,
and with instructions to the postmaster to return the mail to the
sender after ten (10) days if undelivered. If no registry service is
available in the locality of either the sender of the addressee,
service may be done by ordinary mail. (Italics supplied)
The records disclose that Joycelyn received the CA’s August 30, 2002
Decision on September 9, 2002. On September 17, she filed before
this Court a Motion for a 30-day extension of time to file a petition
for review on certiorari. This Motion was granted,11 and the
deadline was thus extended until October 24, 2002.
A further perusal of the records reveals that copies of the Petition
were sent to this Court and to the parties by registered mail 12 at the
Biñan, Laguna Post Office on October 24, 2002. This is the date
clearly stamped on the face of the envelope13 and attested to in the
Affidavit of Service14 accompanying the Petition. Petitioner Joycelyn
explained that the filing and the service had been made by
registered mail due to the "volume of delivery assignments and the
lack of a regular messenger."15
The Petition is, therefore, considered to have been filed on October
24, 2002, its mailing date as shown by the post office stamp on the
envelope. The last sentence of Section 3 of Rule 13 of the Rules
provides that the date of filing may be shown either by the post
office stamp on the envelope or by the registry receipt. Proof of its
filing, on the other hand, is shown by the existence of the petition in
the record, pursuant to Section 12 of Rule 13.16
The postmaster satisfactorily clarifies that Registry Bill No. 88, which
shows the date November 2, 2002, merely discloses when the mail
matters received by the Biñan Post Office on October 24, 2002,
were dispatched or sent to the Central Mail Exchange for
distribution to their final destinations.17 The Registry Bill does not
reflect the actual mailing date. Instead, it is the postal Registration
Book18 that shows the list of mail matters that have been registered
for mailing on a particular day, along with the names of the senders
and the addressees. That book shows that Registry Receipt Nos.
2832-A and 2832-B, pertaining to the mailed matters for the
Supreme Court, were issued on October 24, 2002.
Prematurity of the Petition
As to the alleged prematurity of the Petition of Joycelyn, Crisanto
points out that his Urgent Motion for Partial Reconsideration 19 was
still awaiting resolution by the CA when she filed her Petition before
this Court on October 24, 2002. The CA ruled on the Motion only on
November 27, 2002.
The records show, however, that the Motion of Crisanto
was mailed only on September 12, 2002. Thus, on September 17,
2002, when Joycelyn filed her Motion for Extension of Time to file
her Petition for Review, she might have still been unaware that he
had moved for a partial reconsideration of the August 20, 2002 CA
Decision. Nevertheless, upon being notified of the filing of his
Motion, she should have manifested that fact to this Court.
With the CA’s final denial of Crisanto’s Motion for Reconsideration,
Joycelyn’s lapse may be excused in the interest of resolving the
substantive issues raised by the parties.
First Issue:
Grave Abuse of Discretion
In GR No. 156254, Crisanto submits that the CA gravely abused its
discretion when it ordered the trial court judge to "consider, hear
and resolve the motion to lift the award of custody pendente lite"
without any proper motion by Joycelyn and after the April 3, 2002
Order of the trial court had become final and executory. The CA is
also charged with grave abuse of discretion for denying his Motion
for Partial Reconsideration without stating the reasons for the
denial, allegedly in contravention of Section 1 of Rule 36 of the Rules
of Court.
The Order to Hear the Motion to Lift the Award of Custody Pendente
Lite Proper
To begin with, grave abuse of discretion is committed when an act is
1) done contrary to the Constitution, the law or jurisprudence;20 or
2) executed "whimsically or arbitrarily" in a manner "so patent and
so gross as to amount to an evasion of a positive duty, or to a virtual
refusal to perform the duty enjoined."21 What constitutes grave
abuse of discretion is such capricious and arbitrary exercise of
judgment as that which is equivalent, in the eyes of the law, to lack
of jurisdiction.22
On the basis of these criteria, we hold that the CA did not commit
grave abuse of discretion.
First, there can be no question that a court of competent jurisdiction
is vested with the authority to resolve even unassigned issues. It can
do so when such a step is indispensable or necessary to a just
resolution of issues raised in a particular pleading or when the
unassigned issues are inextricably linked or germane to those that
have been pleaded.23 This truism applies with more force when the
relief granted has been specifically prayed for, as in this case.
Explicit in the Motion to Dismiss24 filed by Joycelyn before the RTC is
her ancillary prayer for the court to lift and set aside its April 3, 2002
Order awarding to Crisanto custody pendente lite of their minor son.
Indeed, the necessary consequence of granting her Motion to
Dismiss would have been the setting aside of the Order awarding
Crisanto provisional custody of the child. Besides, even if the Motion
to Dismiss was denied -- as indeed it was -- the trial court, in its
discretion and if warranted, could still have granted the ancillary
prayer as an alternative relief.
Parenthetically, Joycelyn’s Motion need not have been verified
because of the provisional nature of the April 3, 2002 Order. Under
Rule 3825 of the Rules of Court, verification is required only when
relief is sought from a final and executory Order. Accordingly, the
court may set aside its own orders even without a proper motion,
whenever such action is warranted by the Rules and to prevent a
miscarriage of justice.26
Denial of the Motion for Reconsideration Proper
Second, the requirement in Section 1 of Rule 36 (for judges to state
clearly and distinctly the reasons for their dispositions) refers only to
decisions and final orders on the merits, not to those resolving
incidental matters.27 The provision reads:
"SECTION 1. Rendition of judgments and final orders. – A judgment
or final order determining the merits of the caseshall be in writing
personally and directly prepared by the judge, stating clearly and
distinctly the facts and the law on which it is based, signed by him,
and filed with the clerk of court." (Italics supplied)
Here, the declaration of the nullity of marriage is the subject of the
main case, in which the issue of custody pendente lite is an incident.
That custody and support of common children may be ruled upon by
the court while the action is pending is provided in Article 49 of the
Family Code, which we quote :
"Art. 49. During the pendency of the action 28 and in the absence of
adequate provisions in a written agreement between the spouses,
the Court shall provide for the support of the spouses and the
custody and support of their common children. x x x."
Clearly then, the requirement cited by Crisanto is inapplicable. In
any event, in its questioned Resolution, the CA clearly stated that it
"could not find any cogent reason" to reconsider and set aside the
assailed portion of its August 30, 2002 Decision.
The April 3, 2002 Order Not Final and Executory
Third, the award of temporary custody, as the term implies, is
provisional and subject to change as circumstances may warrant. In
this connection, there is no need for a lengthy discussion of the
alleged finality of the April 3, 2002 RTC Order granting Crisanto
temporary custody of his son. For that matter, even the award of
child custody after a judgment on a marriage annulment is not
permanent; it may be reexamined and adjusted if and when the
parent who was given custody becomes unfit.29
Second Issue:
Custody of a Minor Child
When love is lost between spouses and the marriage inevitably
results in separation, the bitterest tussle is often over the custody of
their children. The Court is now tasked to settle the opposing claims
of the parents for custody pendente lite of their child who is less
than seven years old.30 On the one hand, the mother insists that,
based on Article 213 of the Family Code, her minor child cannot be
separated from her. On the other hand, the father argues that she is
"unfit" to take care of their son; hence, for "compelling reasons," he
must be awarded custody of the child.
Article 213 of the Family Code31 provides:
"ART. 213. In case of separation of the parents, parental authority
shall be exercised by the parent designated by the court. The court
shall take into account all relevant considerations, especially the
choice of the child over seven years of age, unless the parent chosen
is unfit.
No child under seven years of age shall be separated from the
mother, unless the court finds compelling reasons to order
otherwise."
This Court has held that when the parents are separated, legally or
otherwise, the foregoing provision governs the custody of their
child.32 Article 213 takes its bearing from Article 363 of the Civil
Code, which reads:
"Art. 363. In all questions on the care, custody, education and
property of children, the latter’s welfare shall be paramount. No
mother shall be separated from her child under seven years of age,
unless the court finds compelling reasons for such measure."(Italics
supplied)
The general rule that children under seven years of age shall not be
separated from their mother finds its raison d’etre in the basic need
of minor children for their mother’s loving care. 33 In explaining the
rationale for Article 363 of the Civil Code, the Code Commission
stressed thus:
"The general rule is recommended in order to avoid a tragedy where
a mother has seen her baby torn away from her. No man can sound
the deep sorrows of a mother who is deprived of her child of tender
age. The exception allowed by the rule has to be for ‘compelling
reasons’ for the good of the child: those cases must indeed be rare,
if the mother’s heart is not to be unduly hurt. If she has erred, as in
cases of adultery, the penalty of imprisonment and the (relative)
divorce decree will ordinarily be sufficient punishment for her.
Moreover, her moral dereliction will not have any effect upon the
baby who is as yet unable to understand the situation." (Report of
the Code Commission, p. 12)
A similar provision is embodied in Article 8 of the Child and Youth
Welfare Code (Presidential Decree No. 603). 34Article 17 of the same
Code is even more explicit in providing for the child’s custody under
various circumstances, specifically in case the parents are separated.
It clearly mandates that "no child under five years of age shall be
separated from his mother, unless the court finds compelling
reasons to do so." The provision is reproduced in its entirety as
follows:
"Art. 17. Joint Parental Authority. – The father and the mother shall
exercise jointly just and reasonable parental authority and
responsibility over their legitimate or adopted children. In case of
disagreement, the father’s decision shall prevail unless there is a
judicial order to the contrary.
"In case of the absence or death of either parent, the present or
surviving parent shall continue to exercise parental authority over
such children, unless in case of the surviving parent’s remarriage,
the court for justifiable reasons, appoints another person as
guardian.
"In case of separation of his parents, no child under five years of age
shall be separated from his mother, unless the court finds compelling
reasons to do so." (Italics supplied)
The above mandates reverberate in Articles 211, 212 and 213 of the
Family Code. It is unmistakable from the language of these
provisions that Article 21135 was derived from the first sentence of
the aforequoted Article 17; Article 212,36 from the second sentence;
and Article 213,37 save for a few additions, from the third sentence.
It should be noted that the Family Code has reverted to the Civil
Code provision mandating that a child below seven years should not
be separated from the mother.38
Mandatory Character of Article 213 of the Family Code
In Lacson v. San Jose-Lacson,39 the Court held that the use of "shall"
in Article 363 of the Civil Code and the observations made by the
Code Commission underscore the mandatory character of the
word.40 Holding in that case that it was a mistake to deprive the
mother of custody of her two children, both then below the age of
seven, the Court stressed:
"[Article 363] prohibits in no uncertain terms the separation of a
mother and her child below seven years, unless such a separation is
grounded upon compelling reasons as determined by a court."41
In like manner, the word "shall" in Article 213 of the Family Code
and Section 642 of Rule 99 of the Rules of Court has been held to
connote a mandatory character.43 Article 213 and Rule 99 similarly
contemplate a situation in which the parents of the minor are
married to each other, but are separated by virtue of either a
decree of legal separation or a de facto separation.44 In the present
case, the parents are living separately as a matter of fact.
The Best Interest of the Child a Primary Consideration
The Convention on the Rights of the Child provides that "[i]n all
actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall
be a primary consideration."45
The principle of "best interest of the child" pervades Philippine
cases involving adoption, guardianship, support, personal status,
minors in conflict with the law, and child custody. In these cases, it
has long been recognized that in choosing the parent to whom
custody is given, the welfare of the minors should always be the
paramount consideration.46 Courts are mandated to take into
account all relevant circumstances that would have a bearing on the
children’s well-being and development. Aside from the material
resources and the moral and social situations of each parent, other
factors may also be considered to ascertain which one has the
capability to attend to the physical, educational, social and moral
welfare of the children.47 Among these factors are the previous care
and devotion shown by each of the parents; their religious
background, moral uprightness, home environment and time
availability; as well as the children’s emotional and educational
needs
Tender-Age Presumption
As pointed out earlier, there is express statutory recognition that, as
a general rule, a mother is to be preferred in awarding custody of
children under the age of seven. The caveat in Article 213 of the
Family Code cannot be ignored, except when the court finds cause
to order otherwise.48
The so-called "tender-age presumption" under Article 213 of the
Family Code may be overcome only by compellingevidence of the
mother’s unfitness. The mother has been declared unsuitable to
have custody of her children in one or more of the following
instances: neglect, abandonment, unemployment, immorality,
habitual drunkenness, drug addiction, maltreatment of the child,
insanity or affliction with a communicable disease. 49
Here, Crisanto cites immorality due to alleged lesbian relations as
the compelling reason to deprive Joycelyn of custody. It has indeed
been held that under certain circumstances, the mother’s immoral
conduct may constitute a compelling reason to deprive her of
custody.50
But sexual preference or moral laxity alone does not prove parental
neglect or incompetence. Not even the fact that a mother is a
prostitute or has been unfaithful to her husband would render her
unfit to have custody of her minor child.51 To deprive the wife of
custody, the husband must clearly establish that her moral lapses
have had an adverse effect on the welfare of the child or have
distracted the offending spouse from exercising proper parental
care.52
To this effect did the Court rule in Unson III v. Navarro,53 wherein
the mother was openly living with her brother-in-law, the child’s
uncle. Under that circumstance, the Court deemed it in the nine-
year-old child’s best interest to free her "from the obviously
unwholesome, not to say immoral influence, that the situation in
which the mother ha[d] placed herself might create in [the child’s]
moral and social outlook."54
In Espiritu v. CA,55 the Court took into account psychological and
case study reports on the child, whose feelings of insecurity and
anxiety had been traced to strong conflicts with the mother. To the
psychologist the child revealed, among other things, that the latter
was disturbed upon seeing "her mother hugging and kissing a ‘bad’
man who lived in their house and worked for her father." The Court
held that the "illicit or immoral activities of the mother had already
caused the child emotional disturbances, personality conflicts, and
exposure to conflicting moral values x x x."
Based on the above jurisprudence, it is therefore not enough for
Crisanto to show merely that Joycelyn was a lesbian. He must also
demonstrate that she carried on her purported relationship with a
person of the same sex in the presence of their son or under
circumstances not conducive to the child’s proper moral SO ORDERED.
development. Such a fact has not been shown here. There is no
evidence that the son was exposed to the mother’s alleged sexual
proclivities or that his proper moral and psychological development
suffered as a result.

Moreover, it is worthy to note that the trial court judge, Helen

Bautista-Ricafort, ruled in her May 17, 2002 Order that she had
found the "reason stated by [Crisanto] not to be compelling" 56 as to
suffice as a ground for separating the child from his mother. The
judge made this conclusion after personally observing the two of
them, both in the courtroom and in her chambers on April 16, 2002,
and after a chance to talk to the boy and to observe him firsthand.
This assessment, based on her unique opportunity to witness the
child’s behavior in the presence of each parent, should carry more
weight than a mere reliance on the records. All told, no compelling
reason has been adduced to wrench the child from the mother’s
custody.

No Grant of Habeas Corpus and Preliminary Injunction

As we have ruled that Joycelyn has the right to keep her minor son
in her custody, the writ of habeas corpus and the preliminary
mandatory injunction prayed for by Crisanto have no leg to stand
on. A writ of habeas corpus may be issued only when the "rightful
custody of any person is withheld from the person entitled
thereto,"57 a situation that does not apply here.

On the other hand, the ancillary remedy of preliminary mandatory

injunction cannot be granted, because Crisanto’s right to custody
has not been proven to be "clear and unmistakable."58 Unlike an
ordinary preliminary injunction, the writ of preliminary mandatory
injunction is more cautiously regarded, since the latter requires the
performance of a particular act that tends to go beyond the
maintenance of the status quo.59 Besides, such an injunction would
serve no purpose, now that the case has been decided on its
merits.60

WHEREFORE, the Petition in GR No. 154994 is GRANTED. The

assailed Decision of the Court of Appeals is hereby REVERSED and
the May 17, 2002 Regional Trial Court Order REINSTATED. The
Petition in GR No. 156254 is DISMISSED. Costs against Petitioner
Crisanto Rafaelito Gualberto V.
THIRD DIVISION
G.R. No. 156343 October 18, 2004
JOEY D. BRIONES, petitioner,
vs.
MARICEL P. MIGUEL, FRANCISCA P. MIGUEL and LORETA P.
MIGUEL, respondents.
DECISION
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 petitioner’s ‘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 o’clock 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 latter’s 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 petitioner’s
allegation that respondents Maricel P. Miguel and Francisca
P. Miguel were the ones who took the child from the
petitioner or the latter’s 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 petitioner’s
parents while they were both working in Japan. She added
that even before the custody of the child was given to the
petitioner’s 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 Previously, under the provisions of the Civil Code, illegitimate
of the mother who is away."7 children were generally classified into two groups: (1) natural,
whether actual or by legal fiction; and (2) spurious, whether
The Court’s Ruling 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
The Petition has no merit. However, the assailed Decision should be child, were not disqualified by any impediment to marry each
modified in regard to its erroneous application of Section 6 of Rule other.15 On the other hand, a spurious child is one born of parents
99 of the Rules of Court. who, at the time of conception, were disqualified to marry each
other on account of certain legal impediments.16
Sole Issue
Parental authority over recognized natural children who were under
the age of majority was vested in the father or the mother
Who Should Have Custody of the Child?
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
Petitioner concedes that Respondent Loreta has preferential right
was awarded to both, the rule as to legitimate children applied. In
over their minor child. He insists, however, that custody should be
other words, in the latter case, parental authority resided jointly in
awarded to him whenever she leaves for Japan and during the
the father and the mother.18
period that she stays there. In other words, he wants joint custody
over the minor, such that the mother would have custody when she
The fine distinctions among the various types of illegitimate children
is in the country. But when she is abroad, he -- as the biological
have been eliminated in the Family Code.19Now, there are only two
father -- should have custody.
classes of children -- legitimate (and those who, like the legally
adopted, have the rights of legitimate children) and illegitimate. All
According to petitioner, Loreta is not always in the country. When
children conceived and born outside a valid marriage are
she is abroad, she cannot take care of their child. The undeniable
illegitimate, unless the law itself gives them legitimate status.20
fact, he adds, is that she lives most of the time in Japan, as
evidenced by her Special Power of Attorney dated May 28,
Article 54 of the Code provides these exceptions: "Children
2001,8 granting to her sister temporary custody over the minor.
conceived or born before the judgment of annulment or absolute
nullity of the marriage under Article 36 has become final and
At present, however, the child is already with his mother in Japan,
executory shall be considered legitimate. Children conceived or born
where he is studying,9 thus rendering petitioner’s argument moot.
of the subsequent marriage under Article 53 shall likewise be
While the Petition for Habeas Corpus was pending before the CA,
legitimate."
petitioner filed on July 30, 2002, an "Urgent Motion for a Hold
Departure Order,"10 alleging therein that respondents were
Under Article 176 of the Family Code, all illegitimate children are
preparing the travel papers of the minor so the child could join his
generally placed under one category, without any distinction
mother and her Japanese husband. The CA denied the Motion for
between natural and spurious.21 The concept of "natural child" is
lack of merit.11
important only for purposes of legitimation.22 Without the
subsequent marriage, a natural child remains an illegitimate child.
Having been born outside a valid marriage, the minor is deemed an
illegitimate child of petitioner and Respondent Loreta. Article 176 of
Obviously, Michael is a natural ("illegitimate," under the Family
the Family Code of the Philippines12 explicitly provides that
Code) child, as there is nothing in the records showing that his
"illegitimate children shall use the surname and shall be under the
parents were suffering from a legal impediment to marry at the time
parental authority of their mother, and shall be entitled to support
of his birth. Both acknowledge that Michael is their son. As earlier
in conformity with this Code." This is the rule regardless of whether
explained and pursuant to Article 176, parental authority over him
the father admits paternity.13
resides in his mother, Respondent Loreta, notwithstanding his
father’s 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.
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.
SO ORDERED.

Only the most compelling of reasons, such as the mother’s 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
FIRST DIVISION 1. Defendant St. Mary’s Academy of Dipolog City, is hereby ordered
to pay plaintiffs William Carpitanos and Luisa Carpitanos, the
G.R. No. 143363 February 6, 2002 following sums of money:
ST. MARY'S ACADEMY, petitioner, a. FIFTY THOUSAND PESOS (P50,000.00) indemnity for the loss of
vs. life of Sherwin S. Carpitanos;
WILLIAM CARPITANOS and LUCIA S. CARPITANOS, GUADA DANIEL,
JAMES DANIEL II, JAMES DANIEL, SR., and VIVENCIO b. FORTY THOUSAND PESOS (P40,000.00) actual damages incurred
VILLANUEVA, respondents. by plaintiffs for burial and related expenses;
DECISION c. TEN THOUSAND PESOS (P10,000.00) for attorney’s fees;
PARDO, J.: d. FIVE HUNDRED THOUSAND PESOS (P500,000.00) for moral
damages; and to pay costs.
The Case
2. Their liability being only subsidiary, defendants James Daniel, Sr.
The case is an appeal via certiorari from the decision1 of the Court of and Guada Daniel are hereby ordered to pay herein plaintiffs the
Appeals as well as the resolution denying reconsideration, holding amount of damages above-stated in the event of insolvency of
petitioner liable for damages arising from an accident that resulted principal obligor St. Mary’s Academy of Dipolog City;
in the death of a student who had joined a campaign to visit the
public schools in Dipolog City to solicit enrollment. 3. Defendant James Daniel II, being a minor at the time of the
commission of the tort and who was under special parental
The Facts authority of defendant St. Mary’s Academy, is ABSOLVED from
paying the above-stated damages, same being adjudged against
The facts, as found by the Court of Appeals, are as follows: defendants St. Mary’s Academy, and subsidiarily, against his
parents;
"Claiming damages for the death of their only son, Sherwin
Carpitanos, spouses William Carpitanos and Lucia Carpitanos filed 4. Defendant Vivencio Villanueva is hereby ABSOLVED of any
on June 9, 1995 a case against James Daniel II and his parents, James liability. His counterclaim not being in order as earlier discussed in
Daniel Sr. and Guada Daniel, the vehicle owner, Vivencio Villanueva this decision, is hereby DISMISSED.
and St. Mary’s Academy before the Regional Trial Court of Dipolog
City. IT IS SO ORDERED."’ (Decision, pp. 32-33; Records, pp. 205-206)."
"On 20 February 1997, Branch 6 of the Regional Trial Court of "From the records it appears that from 13 to 20 February 1995,
Dipolog City rendered its decision the dispositive portion of which defendant-appellant St. Mary’s Academy of Dipolog City conducted
reads as follows: an enrollment drive for the school year 1995-1996. A facet of the
enrollment campaign was the visitation of schools from where
"‘WHEREFORE, PREMISES CONSIDERED, judgment is hereby prospective enrollees were studying. As a student of St. Mary’s
rendered in the following manner: Academy, Sherwin Carpitanos was part of the campaigning group.
Accordingly, on the fateful day, Sherwin, along with other high
school students were riding in a Mitsubishi jeep owned by
defendant Vivencio Villanueva on their way to Larayan Elementary
School, Larayan, Dapitan City. The jeep was driven by James Daniel II
then 15 years old and a student of the same school. Allegedly, the
latter drove the jeep in a reckless manner and as a result the jeep
turned turtle.
"Sherwin Carpitanos died as a result of the injuries he sustained
from the accident."2
In due time, petitioner St. Mary’s academy appealed the decision to
the Court of Appeals.3
On February 29, 2000, the Court of Appeals promulgated a decision
reducing the actual damages to P25,000.00 but otherwise affirming
the decision a quo, in toto.4
On February 29, 2000, petitioner St. Mary’s Academy filed a motion
for reconsideration of the decision. However, on May 22, 2000, the
Court of Appeals denied the motion.5
Hence, this appeal.6
The Issues
1) Whether the Court of Appeals erred in holding the
petitioner liable for damages for the death of Sherwin
Carpitanos.
2) Whether the Court of Appeals erred in affirming the
award of moral damages against the petitioner.
The Court’s Ruling
We reverse the decision of the Court of Appeals.
The Court of Appeals held petitioner St. Mary’s Academy liable for
the death of Sherwin Carpitanos under Articles 218 7 and 2198 of the
Family Code, pointing out that petitioner was negligent in allowing a
minor to drive and in not having a teacher accompany the minor
students in the jeep.
Under Article 218 of the Family Code, the following shall have
special parental authority over a minor child while under their
supervision, instruction or custody: (1) the school, its administrators
and teachers; or (2) the individual, entity or institution engaged in
child care. This special parental authority and responsibility applies
to all authorized activities, whether inside or outside the premises
of the school, entity or institution. Thus, such authority and
responsibility applies to field trips, excursions and other affairs of
the pupils and students outside the school premises whenever
authorized by the school or its teachers.9
Under Article 219 of the Family Code, if the person under custody is
a minor, those exercising special parental authority are principally
and solidarily liable for damages caused by the acts or omissions of
the unemancipated minor while under their supervision, instruction,
or custody.10
However, for petitioner to be liable, there must be a finding that the
act or omission considered as negligent was the proximate cause of
the injury caused because the negligence must have a causal
connection to the accident.11
"In order that there may be a recovery for an injury, however, it
must be shown that the ‘injury for which recovery is sought must be
the legitimate consequence of the wrong done; the connection
between the negligence and the injury must be a direct and natural
sequence of events, unbroken by intervening efficient causes.’ In
other words, the negligence must be the proximate cause of the
injury. For, ‘negligence, no matter in what it consists, cannot create
a right of action unless it is the proximate cause of the injury
complained of.’ And ‘the proximate cause of an injury is that cause,
which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which
the result would not have occurred.’"12
In this case, the respondents failed to show that the negligence of
petitioner was the proximate cause of the death of the victim.
Respondents Daniel spouses and Villanueva admitted that the
immediate cause of the accident was not the negligence of
petitioner or the reckless driving of James Daniel II, but the
detachment of the steering wheel guide of the jeep.
In their comment to the petition, respondents Daniel spouses and
Villanueva admitted the documentary exhibits establishing that the
cause of the accident was the detachment of the steering wheel
guide of the jeep. Hence, the cause of the accident was not the
recklessness of James Daniel II but the mechanical defect in the jeep
of Vivencio Villanueva. Respondents, including the spouses
Carpitanos, parents of the deceased Sherwin Carpitanos, did not
dispute the report and testimony of the traffic investigator who
stated that the cause of the accident was the detachment of the
steering wheel guide that caused the jeep to turn turtle.
Significantly, respondents did not present any evidence to show that
the proximate cause of the accident was the negligence of the
school authorities, or the reckless driving of James Daniel II. Hence,
the respondents’ reliance on Article 219 of the Family Code that
"those given the authority and responsibility under the preceding
Article shall be principally and solidarily liable for damages caused
by acts or omissions of the unemancipated minor" was unfounded.
Further, there was no evidence that petitioner school allowed the
minor James Daniel II to drive the jeep of respondent Vivencio
Villanueva. It was Ched Villanueva, grandson of respondent Vivencio
Villanueva, who had possession and control of the jeep. He was
driving the vehicle and he allowed James Daniel II, a minor, to drive
the jeep at the time of the accident.
Hence, liability for the accident, whether caused by the negligence
of the minor driver or mechanical detachment of the steering wheel
guide of the jeep, must be pinned on the minor’s parents primarily.
The negligence of petitioner St. Mary’s Academy was only a remote
cause of the accident. Between the remote cause and the injury,
there intervened the negligence of the minor’s parents or the
detachment of the steering wheel guide of the jeep.
"The proximate cause of an injury is that cause, which, in natural
and continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would not
have occurred."13
Considering that the negligence of the minor driver or the
detachment of the steering wheel guide of the jeep owned by
respondent Villanueva was an event over which petitioner St.
Mary’s Academy had no control, and which was the proximate
cause of the accident, petitioner may not be held liable for the
death resulting from such accident.
Consequently, we find that petitioner likewise cannot be held liable
for moral damages in the amount of P500,000.00 awarded by the
trial court and affirmed by the Court of Appeals.
Though incapable of pecuniary computation, moral damages may be
recovered if they are the proximate result of the defendant’s
wrongful act or omission.14 In this case, the proximate cause of the
accident was not attributable to petitioner.
For the reason that petitioner was not directly liable for the
accident, the decision of the Court of Appeals ordering petitioner to
pay death indemnity to respondent Carpitanos must be deleted.
Moreover, the grant of attorney’s fees as part of damages is the
exception rather than the rule.15 The power of the court to award
attorney’s fees under Article 2208 of the Civil Code demands factual,
legal and equitable justification.16 Thus, the grant of attorney’s fees
against the petitioner is likewise deleted.
Incidentally, there was no question that the registered owner of the
vehicle was respondent Villanueva. He never denied and in fact
admitted this fact.1âwphi1 We have held that the registered owner
of any vehicle, even if not used for public service, would primarily be
responsible to the public or to third persons for injuries caused the
latter while the vehicle was being driven on the highways or
streets."17 Hence, with the overwhelming evidence presented by
petitioner and the respondent Daniel spouses that the accident
occurred because of the detachment of the steering wheel guide of
the jeep, it is not the school, but the registered owner of the vehicle
who shall be held responsible for damages for the death of Sherwin
Carpitanos.
The Fallo
WHEREFORE, the Court REVERSES and SETS ASIDE the decision of
the Court of Appeals18 and that of the trial court.19 The Court
remands the case to the trial court for determination of the liability
of defendants, excluding petitioner St. Mary’s Academy, Dipolog
City.
No costs.
SO ORDERED.
SECOND DIVISION Branch 33 of Siniloan, Laguna. he is entitled to the reliefs prayed [for]. Petitioner has adequately
presented to the Court very clear and convincing proofs for the
REPUBLIC OF THE PHILIPPINES, G.R. No. 166676 In her petition, she alleged that she was born on January 13, 1981 granting of his petition. It was medically proven that petitioner’s
and was registered as a female in the Certificate of Live Birth but body produces male hormones, and first his body as well as his
Petitioner, Present: while growing up, she developed secondary male characteristics and action and feelings are that of a male. He has chosen to be male. He
was diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a normal person and wants to be acknowledged and identified as
is a condition where persons thus afflicted possess both male and a male.
- versus - Quisumbing, J., Chairperson,
female characteristics. She further alleged that she was diagnosed
to have clitoral hyperthropy in her early years and at age six, WHEREFORE, premises considered, the Civil Register of Pakil, Laguna
JENNIFER B. CAGANDAHAN, Carpio Morales,
underwent an ultrasound where it was discovered that she has is hereby ordered to make the following corrections in the birth
small ovaries. At age thirteen, tests revealed that her ovarian [c]ertificate of Jennifer Cagandahan upon payment of the prescribed
Respondent. Tinga, structures had minimized, she has stopped growing and she has no fees:
breast or menstrual development. She then alleged that for all
VELASCO, JR., and interests and appearances as well as in mind and emotion, she has a) By changing the name from Jennifer Cagandahan to JEFF
become a male person. Thus, she prayed that her birth certificate be CAGANDAHAN; and
BRION, JJ. corrected such that her gender be changed from female to male and
her first name be changed from Jennifer to Jeff. b) By changing the gender from female to MALE.
Promulgated:
The petition was published in a newspaper of general circulation for It is likewise ordered that petitioner’s school records, voter’s
September 12, 2008 three (3) consecutive weeks and was posted in conspicuous places registry, baptismal certificate, and other pertinent records are
by the sheriff of the court. The Solicitor General entered his hereby amended to conform with the foregoing corrected data.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x appearance and authorized the Assistant Provincial Prosecutor to
appear in his behalf.
SO ORDERED.[3]
DECISION
To prove her claim, respondent testified and presented the
Thus, this petition by the Office of the Solicitor General (OSG)
testimony of Dr. Michael Sionzon of the Department of Psychiatry,
QUISUMBING, J.: seeking a reversal of the abovementioned ruling.
University of the Philippines-Philippine General Hospital. Dr. Sionzon
issued a medical certificate stating that respondent’s condition is
This is a petition for review under Rule 45 of the Rules of Court The issues raised by petitioner are:
known as CAH. He explained that genetically respondent is female
raising purely questions of law and seeking a reversal of the
but because her body secretes male hormones, her female organs
Decision[1] dated January 12, 2005 of the Regional Trial Court (RTC), did not develop normally and she has two sex organs – female and THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING
Branch 33 of Siniloan, Laguna, which granted the Petition for male. He testified that this condition is very rare, that respondent’s THAT:
Correction of Entries in Birth Certificate filed by Jennifer B.
uterus is not fully developed because of lack of female hormones,
Cagandahan and ordered the following changes of entries in I.
and that she has no monthly period. He further testified that
Cagandahan’s birth certificate: (1) the name "Jennifer Cagandahan" respondent’s condition is permanent and recommended the change
changed to "Jeff Cagandahan" and (2) gender from "female" to
of gender because respondent has made up her mind, adjusted to THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF
"male."
her chosen role as male, and the gender change would be COURT HAVE NOT BEEN COMPLIED WITH; AND,
advantageous to her.
The facts are as follows.
II.
The RTC granted respondent’s petition in a Decision dated January
On December 11, 2003, respondent Jennifer Cagandahan filed a 12, 2005 which reads: CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW
Petition for Correction of Entries in Birth Certificate2 before the RTC,
CHANGE OF "SEX" OR "GENDER" IN THE BIRTH CERTIFICATE, WHILE
The Court is convinced that petitioner has satisfactorily shown that RESPONDENT’S MEDICAL CONDITION, i.e., CONGENITAL ADRENAL
HYPERPLASIA DOES NOT MAKE HER A "MALE."4
Simply stated, the issue is whether the trial court erred in ordering
the correction of entries in the birth certificate of respondent to
change her sex or gender, from female to male, on the ground of
her medical condition known as CAH, and her name from "Jennifer"
to "Jeff," under Rules 103 and 108 of the Rules of Court.
The OSG contends that the petition below is fatally defective for
non-compliance with Rules 103 and 108 of the Rules of Court
because while the local civil registrar is an indispensable party in a
petition for cancellation or correction of entries under Section 3,
Rule 108 of the Rules of Court, respondent’s petition before the
court a quo did not implead the local civil registrar.5 The OSG further
contends respondent’s petition is fatally defective since it failed to
state that respondent is a bona fide resident of the province where
the petition was filed for at least three (3) years prior to the date of
such filing as mandated under Section 2(b), Rule 103 of the Rules of
Court.6 The OSG argues that Rule 108 does not allow change of sex
or gender in the birth certificate and respondent’s claimed medical
condition known as CAH does not make her a male. 7
On the other hand, respondent counters that although the Local
Civil Registrar of Pakil, Laguna was not formally named a party in the
Petition for Correction of Birth Certificate, nonetheless the Local
Civil Registrar was furnished a copy of the Petition, the Order to
publish on December 16, 2003 and all pleadings, orders or processes
in the course of the proceedings,8 respondent is actually a male
person and hence his birth certificate has to be corrected to reflect
his true sex/gender,9 change of sex or gender is allowed under Rule
108,10 and respondent substantially complied with the requirements
of Rules 103 and 108 of the Rules of Court. 11
Rules 103 and 108 of the Rules of Court provide:
Rule 103
CHANGE OF NAME
Section 1. Venue. – A person desiring to change his name shall
present the petition to the Regional Trial Court 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.
Sec. 3. Order for hearing. – If the petition filed is sufficient in form
and substance, the court, by an order reciting the purpose of the
petition, shall fix a date and place for the hearing thereof, and shall
direct that a copy of the order be published before the hearing at
least once a week for three (3) successive weeks in some newspaper
of general circulation published in the province, as the court shall
deem best. The date set for the hearing shall not be within thirty
(30) days prior to an election nor within four (4) months after the
last publication of the notice.
Sec. 4. Hearing. – Any interested person may appear at the hearing
and oppose the petition. The Solicitor General or the proper
provincial or city fiscal shall appear on behalf of the Government of
the Republic.
Sec. 5. Judgment. – Upon satisfactory proof in open court on the
date fixed in the order that such order has been published as
directed and that the allegations of the petition are true, the court
shall, if proper and reasonable cause appears for changing the name
of the petitioner, adjudge that such name be changed in accordance
with the prayer of the petition.
Sec. 6. Service of judgment. – Judgments or orders rendered in
connection with this rule shall be furnished the civil registrar of the
municipality or city where the court issuing the same is situated,
who shall forthwith enter the same in the civil register.
Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
Section 1. Who may file petition. – Any person interested in any act,
event, order or decree concerning the civil status of persons which
has been recorded in the civil register, may file a verified petition for
the cancellation or correction of any entry relating thereto, with the
Regional Trial Court of the province where the corresponding civil
registry is located.
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.
Sec. 3. Parties. – When cancellation or correction of an entry in the
civil register is sought, the civil registrar and all persons who have or
claim any interest which would be affected thereby shall be made
parties to the proceeding.
Sec. 4. Notice and publication. – Upon the filing of the petition, the
court shall, by an order, fix the time and place for the hearing of the
same, and cause reasonable notice thereof to be given to the
persons named in the petition. The court shall also cause the order
to be published once a week for three (3) consecutive weeks in a
newspaper of general circulation in the province.
Sec. 5. Opposition. – The civil registrar and any person having or
claiming any interest under the entry whose cancellation or
correction is sought may, within fifteen (15) days from notice of the
petition, or from the last date of publication of such notice, file his
opposition thereto.
Sec. 6. Expediting proceedings. – The court in which the proceedings
is brought may make orders expediting the proceedings, and may
also grant preliminary injunction for the preservation of the rights of
the parties pending such proceedings.
Sec. 7. Order. – After hearing, the court may either dismiss the
petition or issue an order granting the cancellation or correction
prayed for. In either case, a certified copy of the judgment shall be
served upon the civil registrar concerned who shall annotate the
same in his record.
The OSG argues that the petition below is fatally defective for non-
compliance with Rules 103 and 108 of the Rules of Court because
respondent’s petition did not implead the local civil registrar.
Section 3, Rule 108 provides that the civil registrar and all persons
who have or claim any interest which would be affected thereby
shall be made parties to the proceedings. Likewise, the local civil
registrar is required to be made a party in a proceeding for the
correction of name in the civil registry. He is an indispensable party
without whom no final determination of the case can be
had.[12] Unless all possible indispensable parties were duly notified
of the proceedings, the same shall be considered as falling much too
short of the requirements of the rules.13 The corresponding petition
should also implead as respondents the civil registrar and all other
persons who may have or may claim to have any interest that would
be affected thereby.14 Respondent, however, invokes Section
6,[15] Rule 1 of the Rules of Court which states that courts shall
construe the Rules liberally to promote their objectives of securing
to the parties a just, speedy and inexpensive disposition of the
matters brought before it. We agree that there is substantial
compliance with Rule 108 when respondent furnished a copy of the
petition to the local civil registrar.
The determination of a person’s sex appearing in his birth certificate
is a legal issue and the court must look to the statutes. In this
connection, Article 412 of the Civil Code provides:
ART. 412. No entry in a civil register shall be changed or corrected
without a judicial order.
Together with Article 376[16] of the Civil Code, this provision was
amended by Republic Act No. 9048[17] in so far as clerical or
typographical errors are involved. The correction or change of such
matters can now be made through administrative proceedings and
without the need for a judicial order. In effect, Rep. Act No. 9048
removed from the ambit of Rule 108 of the Rules of Court the
correction of such errors. Rule 108 now applies only to substantial
changes and corrections in entries in the civil register.18
Under Rep. Act No. 9048, a correction in the civil registry involving
the change of sex is not a mere clerical or typographical error. It is a
substantial change for which the applicable procedure is Rule 108 of
the Rules of Court.19
The entries envisaged in Article 412 of the Civil Code and
correctable under Rule 108 of the Rules of Court are those provided
in Articles 407 and 408 of the Civil Code:
ART. 407. Acts, events and judicial decrees concerning the civil
status of persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages void
from the beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10) naturalization; (11) loss,
or (12) recovery of citizenship; (13) civil interdiction; (14) judicial
determination of filiation; (15) voluntary emancipation of a minor;
and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of
the Civil Code include even those that occur after birth.20
Respondent undisputedly has CAH. This condition causes the early
or "inappropriate" appearance of male characteristics. A person, like
respondent, with this condition produces too much androgen, a
male hormone. A newborn who has XX chromosomes coupled with
CAH usually has a (1) swollen clitoris with the urethral opening at
the base, an ambiguous genitalia often appearing more male than
female; (2) normal internal structures of the female reproductive
tract such as the ovaries, uterus and fallopian tubes; as the child
grows older, some features start to appear male, such as deepening
of the voice, facial hair, and failure to menstruate at puberty. About
1 in 10,000 to 18,000 children are born with CAH.
CAH is one of many conditions[21] that involve intersex anatomy.
During the twentieth century, medicine adopted the term
"intersexuality" to apply to human beings who cannot be classified
as either male or female.[22] The term is now of widespread use.
According to Wikipedia, intersexuality "is the state of a living thing
of a gonochoristic species whose sex chromosomes, genitalia,
and/or secondary sex characteristics are determined to be neither
exclusively male nor female. An organism with intersex may have
biological characteristics of both male and female sexes."
Intersex individuals are treated in different ways by different
cultures. In most societies, intersex individuals have been expected
to conform to either a male or female gender role.[23] Since the rise
of modern medical science in Western societies, some intersex
people with ambiguous external genitalia have had their genitalia
surgically modified to resemble either male or female
genitals.[24] More commonly, an intersex individual is considered as
suffering from a "disorder" which is almost always recommended to
be treated, whether by surgery and/or by taking lifetime medication
in order to mold the individual as neatly as possible into the
category of either male or female.
In deciding this case, we consider the compassionate calls for
recognition of the various degrees of intersex as variations which
should not be subject to outright denial. "It has been suggested that
there is some middle ground between the sexes, a ‘no-man’s land’
for those individuals who are neither truly ‘male’ nor truly
‘female’."[25] The current state of Philippine statutes apparently
compels that a person be classified either as a male or as a female,
but this Court is not controlled by mere appearances when nature
itself fundamentally negates such rigid classification.
In the instant case, if we determine respondent to be a female, then
there is no basis for a change in the birth certificate entry for
gender. But if we determine, based on medical testimony and
scientific development showing the respondent to be other than
female, then a change in the
subject’s birth certificate entry is in order.
Biologically, nature endowed respondent with a mixed (neither
consistently and categorically female nor consistently and
categorically male) composition. Respondent has female (XX)
chromosomes. However, respondent’s body system naturally
produces high levels of male hormones (androgen). As a result,
respondent has ambiguous genitalia and the phenotypic features of
a male.
Ultimately, we are of the view that where the person is biologically
or naturally intersex the determining factor in his gender
classification would be what the individual, like respondent, having
reached the age of majority, with good reason thinks of his/her sex.
Respondent here thinks of himself as a male and considering that
his body produces high levels of male hormones (androgen) there is
preponderant biological support for considering him as being male.
Sexual development in cases of intersex persons makes the gender
classification at birth inconclusive. It is at maturity that the gender
of such persons, like respondent, is fixed.
Respondent here has simply let nature take its course and has not
taken unnatural steps to arrest or interfere with what he was born
with. And accordingly, he has already ordered his life to that of a
male. Respondent could have undergone treatment and taken
steps, like taking lifelong medication,[26] to force his body into the
categorical mold of a female but he did not. He chose not to do so.
Nature has instead taken its due course in respondent’s
development to reveal more fully his male characteristics.
position and his personal judgment of being a male.
In so ruling we do no more than give respect to (1) the diversity of
nature; and (2) how an individual deals with what nature has
handed out. In other words, we respect respondent’s congenital
condition and his mature decision to be a male. Life is already
difficult for the ordinary person. We cannot but respect how
respondent deals with his unordinary state and thus help make his
life easier, considering the unique circumstances in this case.
As for respondent’s change of name under Rule 103, this Court has
held that a change of name is not a matter of right but of judicial
discretion, to be exercised in the light of the reasons adduced and
the consequences that will follow.[28] The trial court’s grant of
respondent’s change of name from Jennifer to Jeff implies a change
of a feminine name to a masculine name. Considering the
consequence that respondent’s change of name merely recognizes
his preferred gender, we find merit in respondent’s change of name.
Such a change will conform with the change of the entry in his birth
certificate from female to male.
WHEREFORE, the Republic’s petition is DENIED. The Decision dated
January 12, 2005 of the Regional Trial Court, Branch 33 of Siniloan,
Laguna, is AFFIRMED. No pronouncement as to costs.

In the absence of a law on the matter, the Court will not dictate on SO ORDERED.
respondent concerning a matter so innately private as one’s
sexuality and lifestyle preferences, much less on whether or not to
undergo medical treatment to reverse the male tendency due to
CAH. The Court will not consider respondent as having erred in not
choosing to undergo treatment in order to become or remain as a
female. Neither will the Court force respondent to undergo
treatment and to take medication in order to fit the mold of a
female, as society commonly currently knows this gender of the
human species. Respondent is the one who has to live with his
intersex anatomy. To him belongs the human right to the pursuit of
happiness and of health. Thus, to him should belong the primordial
choice of what courses of action to take along the path of his sexual
development and maturation. In the absence of evidence that
respondent is an "incompetent"[27] and in the absence of evidence
to show that classifying respondent as a male will harm other
members of society who are equally entitled to protection under
the law, the Court affirms as valid and justified the respondent’s
FIRST DIVISION
G.R. No. 174689 October 22, 2007
ROMMEL JACINTO DANTES SILVERIO, petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.
DECISION
CORONA, J.:
When God created man, He made him in the likeness of
God; He created them male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala
and she heard voices coming from inside the bamboo. "Oh
North Wind! North Wind! Please let us out!," the voices
said. She pecked the reed once, then twice. All of a sudden,
the bamboo cracked and slit open. Out came two human
beings; one was a male and the other was a female.
Amihan named the man "Malakas" (Strong) and the
woman "Maganda" (Beautiful). (The Legend of Malakas
and Maganda)
When is a man a man and when is a woman a woman? In particular,
does the law recognize the changes made by a physician using
scalpel, drugs and counseling with regard to a person’s sex? May a
person successfully petition for a change of name and sex appearing
in the birth certificate to reflect the result of a sex reassignment
surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio
filed a petition for the change of his first name and sex in his birth
certificate in the Regional Trial Court of Manila, Branch 8. The
petition, docketed as SP Case No. 02-105207, impleaded the civil
registrar of Manila as respondent.
Petitioner alleged in his petition that he was born in the City of
Manila to the spouses Melecio Petines Silverio and Anita Aquino
Dantes on April 4, 1962. His name was registered as "Rommel
Jacinto Dantes Silverio" in his certificate of live birth (birth
certificate). His sex was registered as "male."
He further alleged that he is a male transsexual, that is,
"anatomically male but feels, thinks and acts as a female" and that
he had always identified himself with girls since childhood. 1 Feeling
trapped in a man’s body, he consulted several doctors in the United
States. He underwent psychological examination, hormone
treatment and breast augmentation. His attempts to transform
himself to a "woman" culminated on January 27, 2001 when he
underwent sex reassignment surgery2 in Bangkok, Thailand. He was
thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and
reconstruction surgeon in the Philippines, who issued a medical
certificate attesting that he (petitioner) had in fact undergone the
procedure.
From then on, petitioner lived as a female and was in fact engaged
to be married. He then sought to have his name in his birth
certificate changed from "Rommel Jacinto" to "Mely," and his sex
from "male" to "female."
An order setting the case for initial hearing was published in the
People’s Journal Tonight, a newspaper of general circulation in
Metro Manila, for three consecutive weeks.3 Copies of the order
were sent to the Office of the Solicitor General (OSG) and the civil
registrar of Manila.
On the scheduled initial hearing, jurisdictional requirements were
established. No opposition to the petition was made.
During trial, petitioner testified for himself. He also presented Dr.
Reysio-Cruz, Jr. and his American fiancé, Richard P. Edel, as
witnesses.
On June 4, 2003, the trial court rendered a decision4 in favor of
petitioner. Its relevant portions read:
Petitioner filed the present petition not to evade any law or
judgment or any infraction thereof or for any unlawful
motive but solely for the purpose of making his birth
records compatible with his present sex.
The sole issue here is whether or not petitioner is entitled
to the relief asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the
petition would be more in consonance with the principles
of justice and equity. With his sexual [re-assignment],
petitioner, who has always felt, thought and acted like a
woman, now possesses the physique of a female.
Petitioner’s misfortune to be trapped in a man’s body is not
his own doing and should not be in any way taken against
him.
Likewise, the [c]ourt believes that no harm, injury [or]
prejudice will be caused to anybody or the community in
granting the petition. On the contrary, granting the petition
would bring the much-awaited happiness on the part of the
petitioner and her [fiancé] and the realization of their
dreams.
Finally, no evidence was presented to show any cause or
ground to deny the present petition despite due notice and
publication thereof. Even the State, through the [OSG] has
not seen fit to interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered GRANTING the
petition and ordering the Civil Registrar of Manila to
change the entries appearing in the Certificate of Birth of
[p]etitioner, specifically for petitioner’s first name from
"Rommel Jacinto" to MELY and petitioner’s gender from
"Male" to FEMALE. 5
On August 18, 2003, the Republic of the Philippines (Republic), thru
the OSG, filed a petition for certiorari in the Court of Appeals. 6 It
alleged that there is no law allowing the change of entries in the
birth certificate by reason of sex alteration.
On February 23, 2006, the Court of Appeals 7 rendered a decision8 in
favor of the Republic. It ruled that the trial court’s decision lacked
legal basis. There is no law allowing the change of either name or
sex in the certificate of birth on the ground of sex reassignment
through surgery. Thus, the Court of Appeals granted the Republic’s
petition, set aside the decision of the trial court and ordered the
dismissal of SP Case No. 02-105207. Petitioner moved for
reconsideration but it was denied.9 Hence, this petition.
Petitioner essentially claims that the change of his name and sex in
his birth certificate is allowed under Articles 407 to 413 of the Civil
Code, Rules 103 and 108 of the Rules of Court and RA 9048. 10
The petition lacks merit.
A Person’s First Name Cannot Be Changed On the Ground of Sex
Reassignment
Petitioner invoked his sex reassignment as the ground for his
petition for change of name and sex. As found by the trial court:
Petitioner filed the present petition not to evade any law or
judgment or any infraction thereof or for any unlawful
motive but solely for the purpose of making his birth
records compatible with his present sex. (emphasis
supplied)
Petitioner believes that after having acquired the physical features
of a female, he became entitled to the civil registry changes sought.
We disagree.
The State has an interest in the names borne by individuals and
entities for purposes of identification.11 A change of name is a
privilege, not a right.12 Petitions for change of name are controlled
by statutes.13 In this connection, Article 376 of the Civil Code
provides:
ART. 376. No person can change his name or surname
without judicial authority.
This Civil Code provision was amended by RA 9048 (Clerical Error
Law). In particular, Section 1 of RA 9048 provides:
SECTION 1. Authority to Correct Clerical or Typographical
Error and Change of First Name or Nickname. – No entry in
a civil register shall be changed or corrected without a
judicial order, except for clerical or typographical errors
and change of first name or nickname which can be
corrected or changed by the concerned city or municipal
civil registrar or consul general in accordance with the
provisions of this Act and its implementing rules and
regulations.
RA 9048 now governs the change of first name.14 It vests the power
and authority to entertain petitions for change of first name to the
city or municipal civil registrar or consul general concerned. Under
the law, therefore, jurisdiction over applications for change of first
name is now primarily lodged with the aforementioned
administrative officers. The intent and effect of the law is to exclude
the change of first name from the coverage of Rules 103 (Change of
Name) and 108 (Cancellation or Correction of Entries in the Civil
Registry) of the Rules of Court, until and unless an administrative
petition for change of name is first filed and subsequently
denied.15 It likewise lays down the corresponding
venue,16 form17 and procedure. In sum, the remedy and the
proceedings regulating change of first name are primarily
administrative in nature, not judicial.
RA 9048 likewise provides the grounds for which change of first
name may be allowed:
SECTION 4. Grounds for Change of First Name or
Nickname. – The petition for change of first name or
nickname may be allowed in any of the following cases:
(1) The petitioner finds the first name or nickname to be
ridiculous, tainted with dishonor or extremely difficult to
write or pronounce;
(2) The new first name or nickname has been habitually
and continuously used by the petitioner and he has been
publicly known by that first name or nickname in the
community; or
(3) The change will avoid confusion.
Petitioner’s basis in praying for the change of his first name was his
sex reassignment. He intended to make his first name compatible
with the sex he thought he transformed himself into through
surgery. However, a change of name does not alter one’s legal
capacity or civil status.18 RA 9048 does not sanction a change of first
name on the ground of sex reassignment. Rather than avoiding
confusion, changing petitioner’s first name for his declared purpose
may only create grave complications in the civil registry and the
public interest.
Before a person can legally change his given name, he must present
proper or reasonable cause or any compelling reason justifying such
change.19 In addition, he must show that he will be prejudiced by
the use of his true and official name.20 In this case, he failed to
show, or even allege, any prejudice that he might suffer as a result
of using his true and official name.
In sum, the petition in the trial court in so far as it prayed for the
change of petitioner’s first name was not within that court’s primary
jurisdiction as the petition should have been filed with the local civil
registrar concerned, assuming it could be legally done. It was an
improper remedy because the proper remedy was administrative,
that is, that provided under RA 9048. It was also filed in the wrong
venue as the proper venue was in the Office of the Civil Registrar of
Manila where his birth certificate is kept. More importantly, it had
no merit since the use of his true and official name does not
prejudice him at all. For all these reasons, the Court of Appeals
correctly dismissed petitioner’s petition in so far as the change of his
first name was concerned.
No Law Allows The Change of Entry In The Birth Certificate As To
Sex On the Ground of Sex Reassignment
The determination of a person’s sex appearing in his birth certificate
is a legal issue and the court must look to the statutes.21 In this
connection, Article 412 of the Civil Code provides:
ART. 412. No entry in the civil register shall be changed or
corrected without a judicial order.
Together with Article 376 of the Civil Code, this provision was
amended by RA 9048 in so far as clerical or typographical errors are
involved. The correction or change of such matters can now be
made through administrative proceedings and without the need for
a judicial order. In effect, RA 9048 removed from the ambit of Rule
108 of the Rules of Court the correction of such errors. 22 Rule 108
now applies only to substantial changes and corrections in entries in
the civil register.23
Section 2(c) of RA 9048 defines what a "clerical or typographical
error" is:
SECTION 2. Definition of Terms. – As used in this Act, the
following terms shall mean:
xxx xxx xxx
(3) "Clerical or typographical error" refers to a
mistake committed in the performance of clerical
work in writing, copying, transcribing or typing an
entry in the civil register that is harmless and
innocuous, such as misspelled name or misspelled
place of birth or the like, which is visible to the
eyes or obvious to the understanding, and can be
corrected or changed only by reference to other
existing record or records: Provided,
however, That no correction must involve the
change of nationality, age, status or sex of the
petitioner. (emphasis supplied)
Under RA 9048, a correction in the civil registry involving the change
of sex is not a mere clerical or typographical error. It is a substantial
change for which the applicable procedure is Rule 108 of the Rules
of Court.
The entries envisaged in Article 412 of the Civil Code and
correctable under Rule 108 of the Rules of Court are those provided
in Articles 407 and 408 of the Civil Code:24
ART. 407. Acts, events and judicial decrees concerning the
civil status of persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil
register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations;
(5) annulments of marriage; (6) judgments declaring
marriages void from the beginning; (7) legitimations; (8)
adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship; (13)
civil interdiction; (14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and (16) changes
of name.
The acts, events or factual errors contemplated under Article 407 of
the Civil Code include even those that occur after birth.25 However,
no reasonable interpretation of the provision can justify the
conclusion that it covers the correction on the ground of sex
reassignment.
To correct simply means "to make or set aright; to remove the faults
or error from" while to change means "to replace something with
something else of the same kind or with something that serves as a
substitute."26 The birth certificate of petitioner contained no error.
All entries therein, including those corresponding to his first name
and sex, were all correct. No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil registry
of certain acts (such as legitimations, acknowledgments of
illegitimate children and naturalization), events (such as births,
marriages, naturalization and deaths) and judicial decrees (such as
legal separations, annulments of marriage, declarations of nullity of
marriages, adoptions, naturalization, loss or recovery of citizenship,
civil interdiction, judicial determination of filiation and changes of
name). These acts, events and judicial decrees produce legal
consequences that touch upon the legal capacity, status and
nationality of a person. Their effects are expressly sanctioned by the
laws. In contrast, sex reassignment is not among those acts or
events mentioned in Article 407. Neither is it recognized nor even
mentioned by any law, expressly or impliedly.
"Status" refers to the circumstances affecting the legal situation
(that is, the sum total of capacities and incapacities) of a person in
view of his age, nationality and his family membership.27
The status of a person in law includes all his personal
qualities and relations, more or less permanent in nature,
not ordinarily terminable at his own will, such as his being
legitimate or illegitimate, or his being married or not. The
comprehensive term status… include such matters as the
beginning and end of legal personality, capacity to have
rights in general, family relations, and its various aspects,
such as birth, legitimation, adoption, emancipation,
marriage, divorce, and sometimes even
succession.28 (emphasis supplied)
A person’s sex is an essential factor in marriage and family relations.
It is a part of a person’s legal capacity and civil status. In this
connection, Article 413 of the Civil Code provides:
ART. 413. All other matters pertaining to the registration of
civil status shall be governed by special laws.
But there is no such special law in the Philippines governing sex
reassignment and its effects. This is fatal to petitioner’s cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5. Registration and certification of births. – The
declaration of the physician or midwife in attendance at
the birth or, in default thereof, the declaration of either
parent of the newborn child, shall be sufficient for the
registration of a birth in the civil register. Such declaration
shall be exempt from documentary stamp tax and shall be
sent to the local civil registrar not later than thirty days
after the birth, by the physician or midwife in attendance at
the birth or by either parent of the newborn child.
In such declaration, the person above mentioned shall
certify to the following facts: (a) date and hour of birth;
(b) sex and nationality of infant; (c) names, citizenship and
religion of parents or, in case the father is not known, of
the mother alone; (d) civil status of parents; (e) place
where the infant was born; and (f) such other data as may
be required in the regulations to be issued.
xxx xxx xxx (emphasis supplied)
Under the Civil Register Law, a birth certificate is a historical record
of the facts as they existed at the time of birth. 29Thus, the sex of a
person is determined at birth, visually done by the birth attendant
(the physician or midwife) by examining the genitals of the infant.
Considering that there is no law legally recognizing sex
reassignment, the determination of a person’s sex made at the time
of his or her birth, if not attended by error,30 is immutable.31
When words are not defined in a statute they are to be given their
common and ordinary meaning in the absence of a contrary
legislative intent. The words "sex," "male" and "female" as used in
the Civil Register Law and laws concerning the civil registry (and
even all other laws) should therefore be understood in their
common and ordinary usage, there being no legislative intent to the
contrary. In this connection, sex is defined as "the sum of
peculiarities of structure and function that distinguish a male from a
female"32 or "the distinction between male and female." 33Female is
"the sex that produces ova or bears young"34 and male is "the sex
that has organs to produce spermatozoa for fertilizing ova." 35 Thus,
the words "male" and "female" in everyday understanding do not
include persons who have undergone sex reassignment.
Furthermore, "words that are employed in a statute which had at
the time a well-known meaning are presumed to have been used in
that sense unless the context compels to the contrary."36 Since the
statutory language of the Civil Register Law was enacted in the early
1900s and remains unchanged, it cannot be argued that the term
"sex" as used then is something alterable through surgery or
something that allows a post-operative male-to-female transsexual
to be included in the category "female."
For these reasons, while petitioner may have succeeded in altering
his body and appearance through the intervention of modern
surgery, no law authorizes the change of entry as to sex in the civil
registry for that reason. Thus, there is no legal basis for his petition
for the correction or change of the entries in his birth certificate.
Neither May Entries in the Birth Certificate As to First Name or Sex
Be Changed on the Ground of Equity
The trial court opined that its grant of the petition was in
consonance with the principles of justice and equity. It believed that
allowing the petition would cause no harm, injury or prejudice to
anyone. This is wrong.
The changes sought by petitioner will have serious and wide-ranging
legal and public policy consequences. First, even the trial court itself
found that the petition was but petitioner’s first step towards his
eventual marriage to his male fiancé. However, marriage, one of the
most sacred social institutions, is a special contract of permanent Petitioner pleads that "[t]he unfortunates are also entitled to a life
union between a man and a woman.37 One of its essential requisites of happiness, contentment and [the] realization of their dreams."
is the legal capacity of the contracting parties who must be a male No argument about that. The Court recognizes that there are people
and a female.38 To grant the changes sought by petitioner will whose preferences and orientation do not fit neatly into the
substantially reconfigure and greatly alter the laws on marriage and commonly recognized parameters of social convention and that, at
family relations. It will allow the union of a man with another man least for them, life is indeed an ordeal. However, the remedies
who has undergone sex reassignment (a male-to-female post- petitioner seeks involve questions of public policy to be addressed
operative transsexual). Second, there are various laws which apply solely by the legislature, not by the courts.
particularly to women such as the provisions of the Labor Code on
employment of women,39 certain felonies under the Revised Penal WHEREFORE, the petition is hereby DENIED.
Code40 and the presumption of survivorship in case of calamities
under Rule 131 of the Rules of Court,41 among others. These laws Costs against petitioner.
underscore the public policy in relation to women which could be
substantially affected if petitioner’s petition were to be granted.
SO ORDERED.
It is true that Article 9 of the Civil Code mandates that "[n]o judge or
court shall decline to render judgment by reason of the silence,
obscurity or insufficiency of the law." However, it is not a license for
courts to engage in judicial legislation. The duty of the courts is to
apply or interpret the law, not to make or amend it.
In our system of government, it is for the legislature, should it
choose to do so, to determine what guidelines should govern the
recognition of the effects of sex reassignment. The need for
legislative guidelines becomes particularly important in this case
where the claims asserted are statute-based.
To reiterate, the statutes define who may file petitions for change of
first name and for correction or change of entries in the civil
registry, where they may be filed, what grounds may be invoked,
what proof must be presented and what procedures shall be
observed. If the legislature intends to confer on a person who has
undergone sex reassignment the privilege to change his name and
sex to conform with his reassigned sex, it has to enact legislation
laying down the guidelines in turn governing the conferment of that
privilege.
It might be theoretically possible for this Court to write a protocol
on when a person may be recognized as having successfully changed
his sex. However, this Court has no authority to fashion a law on
that matter, or on anything else. The Court cannot enact a law
where no law exists. It can only apply or interpret the written word
of its co-equal branch of government, Congress.
THIRD DIVISION August 3, 2010 for change of name. The amended petition
contained substantially the same allegations as in the petition for
G.R. No. 207147, September 14, 2016 correction of entry in the birth certificate. On August 10, 2010, the
RTC set the initial hearing of the petition in a newspaper of general
EMELITA BASILIO GAN, Petitioner, v. REPUBLIC OF THE circulation. The Office of the Solicitor General (OSG), as counsel of
PHILIPPINES, Respondent. the Republic of the Philippines (respondent), filed its notice of
appearance. The OSG authorized the Office of the Provincial
Prosecutor of Libmanan, Camarines Sur to appear and assist the
RESOLUTION
OSG in the proceedings before the RTC.9chanrobleslaw
REYES, J.:
On July 19, 2011, after due proceedings; the RTC of Libmanan,
Camarines Sur, Branch 29, issued an Order10 granting the petition
This is a petition for review on certiorari1 under Rule 45 of the Rules for change of name. The RTC, thus, directed the LCR of Libmanan,
of Court seeking to annul and set aside the Decision 2 dated April 26, Camarines Sur to change the petitioner's name in her birth
2013 issued by the Court of Appeals (CA) in CA-G.R. CV No. 98112. certificate from "Emelita Basilio" to "Emelita Basilio Gan." The RTC
opined that, from the evidence presented, the said petition was
Facts filed solely to put into order the records of the petitioner and that
changing her name in her birth certificate into Emelita Basilio Gan
Emelita Basilio Gan (petitioner) was born on December 21, 1956 out would avoid confusion in her personal records.11chanrobleslaw
of wedlock to Pia Gan, her father who is a Chinese national, and
Consolacion Basilio, her mother who is a Filipino citizen. 3 The The respondent sought a reconsideration12 of the RTC Order dated
petitioner's birth certificate,4 which was registered in the Office of July 19, 2011, alleging that the petitioner, who is an illegitimate
the Local Civil Registrar (LCR) of Libmanan, Camarines Sur, indicates child, failed to adduce evidence that she was duly recognized by her
that her full name is Emelita Basilio. father, which would have allowed her to use the surname of her
father.13 On October 17, 2011, the RTC issued an Order14 denying
On June 29, 2010, the petitioner filed a Petition5 for correction of the respondent's motion for reconsideration.
name with the Regional Trial Court (RTC) of Libmanan, Camarines
Sur. The petitioner sought to change the full name indicated in her Ruling of the CA
birth certificate from "Emelita Basilio" to "Emelita Basilio Gan." She
claimed that she had been using the name "Emelita Basilio Gan" in On appeal, the CA, in its Decision15 dated April 26, 2013, reversed
her school records from elementary until college, employment and set aside the RTC Orders dated July 19, 2011 and October 17,
records, marriage contract, and other government 2011. The CA opined that pursuant to Article 176 of the Family
records.6chanrobleslaw Code, as amended by Republic Act No. 9255,16 the petitioner, as an
illegitimate child, may only use the surname of her mother; she may
Ruling of the RTC only use the surname of her father if their filiation has been
expressly recognized by her father.17 The CA pointed out that the
On July 15, 2010, the RTC issued an Order, which noted that the petitioner has not adduced any evidence showing that her father
petition filed sought not merely a correction of entry in the birth had recognized her as his illegitimate child and, thus, she may not
certificate, but a change of name. Accordingly, the RTC ordered the use the surname of her father.18chanrobleslaw
petitioner to make the necessary amendment to her petition to
conform to the requirements of Rule 103 of the Rules of In this petition for review, the petitioner maintains that the RTC
Court.7chanrobleslaw correctly granted her petition since she only sought to have her
name indicated in her birth certificate changed to avoid confusion as
The petitioner filed with the RTC an Amended Petition 8 dated regards to her personal records.19 She insists that her failure to
present evidence that her father recognized her as his illegitimate
child is immaterial; a change of name is reasonable and warranted,
if it is necessary to avoid confusion.20chanrobleslaw
Ruling of the Court
The petition is denied.
A change of name is a privilege and not a matter of right; a proper
and reasonable cause must exist before a person may be authorized
to change his name.21 "In granting or denying petitions for change of
name, the question of proper and reasonable cause is left to the
sound discretion of the court. x x x 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 in support thereof, mindful of the consequent results in
the event of its grant and with the sole prerogative for making such
determination being lodged in the courts."22chanrobleslaw
After a judicious review of the records of this case, the Court agrees
with the CA that the reason cited by the petitioner in support of her
petition for change of name, i.e. that she has been using the name
"Emelita Basilio Gan" in all of her records, is not a sufficient or
proper justification to allow her petition. When the petitioner was
born in 1956, prior to the enactment and effectivity of the Family
Code, the pertinent provisions of the Civil Code then regarding the
petitioner's use of surname provide:ChanRoblesVirtualawlibrary
Article 366. A natural child acknowledged by both parents shall
principally use the surname of the father. If recognized by only one
of the parents, a natural child shall employ the surname of the
recognizing parent.
Article 368. Illegitimate children referred to in Article 287 shall bear
the surname of the mother.
In her amended petition for change of name, the petitioner merely
stated that she was born out of wedlock; 23 she did not state
whether her parents, at the time of her birth, were not disqualified
by any impediment to marry each other, which would make her a
natural child pursuant to Article 269 of the Civil Code. If, at the time
of the petitioner's�birth, either of her parents had an impediment
to marry the other, she may only bear the surname of her mother
pursuant to Article 368 of the Civil Code. Otherwise, she may use
the surname of her father provided that she was acknowledged by
her father.

However, the petitioner failed to adduce any evidence that would
show that she indeed was duly acknowledged by his father. The
petitioner's evidence consisted only of her birth certificate signed by
her mother, school records, employment records, marriage
contract, certificate of baptism, and other government records.
Thus, assuming that she is a natural child pursuant to Article 269 of
the Civil Code, she could still not insist on using her father's
surname. It was, thus, a blatant error on the part of the RTC to have
allowed the petitioner to change her name from "Emelita Basilio" to
"Emelita Basilio Gan."
The petitioner's reliance on the cases of Alfon v. Republic of the
Philippines,24Republic of the Philippines v. Coseteng-
Magpayo,25cralawred and Republic of the Philippines v. Lim26 to
support her position is misplaced.
In Alfon, the name of the petitioner therein which appeared in her
birth certificate was Maria Estrella Veronica Primitiva Duterte; she
was a legitimate child of her father and mother. She filed a petition
for change of name, seeking that she be allowed to use the surname
"Alfon," her mother's surname, instead of "Duterte." The trial court
denied the petition, ratiocinating that under Article 364 of the Civil
Code, legitimate children shall principally use the surname of the
father. The Court allowed the petitioner therein to use the surname
of her mother since Article 364 of the Civil Code used the word
"principally" and not "exclusively" and, hence, there is no legal
obstacle if a legitimate child should choose to use the mother's
surname to which he or she is legally entitled.27chanrobleslaw
In contrast, Articles 366 and 368 of the Civil Code do not give to an
illegitimate child or a natural child not acknowledged by the father
the option to use the surname of the father. Thus, the petitioner
cannot insist that she is allowed to use the surname of her father.
In Coseteng-Magpayo, the issue was the proper procedure to be
followed when the change sought to be effected in the birth
certificate affects the civil status of the respondent therein from
legitimate to illegitimate. The respondent therein claimed that his
parents were never legally married; he filed a petition to change his
name from "Julian Edward Emerson Coseteng Magpayo," the name
appearing in his birth certificate, to "Julian Edward Emerson
Marquez-Lim Coseteng." The notice setting the petition for hearing
was published and, since there was no opposition thereto, the trial
court; issued an order of general default and eventually granted the
petition of the respondent therein by, inter alia, deleting the entry
on the date and place of marriage of his parents and correcting his
surname from "Magpayo" to "Coseteng."28 The Court reversed the
trial court's decision since the proper remedy would have been to
file a petition under Rule 108 of the Rules of Court. The Court ruled
that the change sought by the respondent therein involves his civil
status as a legitimate child; it may only be given due course through
an adversarial proceedings under Rule 108 of the Rules of Court. The
Court's pronouncement in Coseteng-Magpayo finds no application
in this case.
Finally, Lim likewise finds no application in this case. In Lim, the
petition that was filed was for correction of entries under Rule 108
of the Rules of Court; the petition sought, among others, is the
correction of the surname of the respondent therein from "Yo" to
"Yu." Further, the respondent therein, although an illegitimate child,
had long been using the surname of her father. It bears stressing
that the birth certificate of the respondent therein indicated that
her surname was the same as her father albeit misspelled. Thus, a
correction of entry in her birth certificate is
appropriate.29chanrobleslaw
Here, the petitioner filed a petition for change of name under Rule
103 and not a petition for correction of entries under Rule 108.
Unlike in Lim, herein petitioner's birth certificate indicated that she
bears the surname of her mother and not of her father.
WHEREFORE, in consideration of the foregoing disquisitions, the
petition is DENIED.
SO ORDERED.chanRoblesvirtualLawlibrary
EN BANC
G.R. No. 206248 February 18, 2014
GRACE M. GRANDE, Petitioner,
vs.
PATRICIO T. ANTONIO, Respondent.
DECISION
VELASCO, JR., J.:
Before this Court is a Petition for Review on Certiorari under Rule
45, assailing the July 24, 2012 Decision1 and March 5, 2013
Resolution2 of the Court of Appeals (CA) in CA-G.R. CV No. 96406.
As culled from the records, the facts of this case are:
Petitioner Grace Grande (Grande) and respondent Patricio Antonio
(Antonio) for a period of time lived together as husband and wife,
although Antonio was at that time already married to someone
else.3 Out of this illicit relationship, two sons were born: Andre
Lewis (on February 8, 1998) and Jerard Patrick (on October 13,
1999).4 The children were not expressly recognized by respondent
as his own in the Record of Births of the children in the Civil
Registry. The parties’ relationship, however, eventually turned sour,
and Grande left for the United States with her two children in May
2007. This prompted respondent Antonio to file a Petition for
Judicial Approval of Recognition with Prayer to take Parental
Authority, Parental Physical Custody, Correction/Change of Surname
of Minors and for the Issuance of Writ of Preliminary Injunction
before the Regional Trial Court, Branch 8 of Aparri, Cagayan (RTC),
appending a notarized Deed of Voluntary Recognition of Paternity of
the children.5
On September 28, 2010, the RTC rendered a Decision in favor of
herein respondent Antonio, ruling that "[t]he evidence at hand is
overwhelming that the best interest of the children can be
promoted if they are under the sole parental authority and physical
custody of [respondent Antonio]."6 Thus, the court a quo decreed
the following:
WHEREFORE, foregoing premises considered, the Court hereby
grants [Antonio’s] prayer for recognition and the same is hereby
judicially approved. x x x Consequently, the Court forthwith issues
the following Order granting the other reliefs sought in the Petition,
to wit:
a. Ordering the Office of the City Registrar of the City of
Makati to cause the entry of the name of [Antonio] as the
father of the aforementioned minors in their respective
Certificate of Live Birth and causing the correction/change
and/or annotation of the surnames of said minors in their
Certificate of Live Birth from Grande to Antonio;
b. Granting [Antonio] the right to jointly exercise Parental
Authority with [Grande] over the persons of their minor
children, Andre Lewis Grande and Jerard Patrick Grande;
c. Granting [Antonio] primary right and immediate custody
over the parties’ minor children Andre Lewis Grandre and
Jerard Patrick Grande who shall stay with [Antonio’s]
residence in the Philippines from Monday until Friday
evening and to [Grande’s] custody from Saturday to Sunday
evening;
d. Ordering [Grande] to immediately surrender the persons
and custody of minors Andre Lewis Grande and Jerard
Patrick Grande unto [Antonio] for the days covered by the
Order;
e. Ordering parties to cease and desist from bringing the
aforenamed minors outside of the country, without the
written consent of the other and permission from the
court.
f. Ordering parties to give and share the support of the
minor children Andre Lewis Grande and Jerard Patrick
Grande in the amount of ₱30,000 per month at the rate of
70% for [Antonio] and 30% for [Grande]. 7(Emphasis
supplied.)
Aggrieved, petitioner Grande moved for reconsideration. However,
her motion was denied by the trial court in its Resolution dated
November 22, 20108 for being pro forma and for lack of merit.
Petitioner Grande then filed an appeal with the CA attributing grave
error on the part of the RTC for allegedly ruling contrary to the law
and jurisprudence respecting the grant of sole custody to the
mother over her illegitimate children.9 In resolving the appeal, the
appellate court modified in part the Decision of the RTC. The
dispositive portion of the CA Decision reads:
WHEREFORE, the appeal is partly GRANTED. Accordingly, the
appealed Decision of the Regional Trial Court Branch 8, Aparri
Cagayan in SP Proc. Case No. 11-4492 is MODIFIED in part and shall
hereinafter read as follows:
a. The Offices of the Civil Registrar General and the City
Civil Registrar of Makati City are DIRECTED to enter the
surname Antonio as the surname of Jerard Patrick and
Andre Lewis, in their respective certificates of live birth,
and record the same in the Register of Births;
b. [Antonio] is ORDERED to deliver the minor children
Jerard Patrick and Andre Lewis to the custody of their
mother herein appellant, Grace Grande who by virtue
hereof is hereby awarded the full or sole custody of these
minor children;
c. [Antonio] shall have visitorial rights at least twice a week,
and may only take the children out upon the written
consent of [Grande]; and
d. The parties are DIRECTED to give and share in support of
the minor children Jerard Patrick and Andre Lewis in the
amount of ₱30,000.00 per month at the rate of 70% for
[Antonio] and 30% for [Grande]. (Emphasis supplied.)
In ruling thus, the appellate court ratiocinated that notwithstanding
the father’s recognition of his children, the mother cannot be
deprived of her sole parental custody over them absent the most
compelling of reasons.10 Since respondent Antonio failed to prove
that petitioner Grande committed any act that adversely affected
the welfare of the children or rendered her unsuitable to raise the
minors, she cannot be deprived of her sole parental custody over
their children.
The appellate court, however, maintained that the legal
consequence of the recognition made by respondent Antonio that
he is the father of the minors, taken in conjunction with the
universally protected "best-interest-of-the-child" clause, compels
the use by the children of the surname "ANTONIO."11
As to the issue of support, the CA held that the grant is legally in
order considering that not only did Antonio express his willingness
to give support, it is also a consequence of his acknowledging the
paternity of the minor children.12Lastly, the CA ruled that there is no
reason to deprive respondent Antonio of his visitorial right
especially in view of the constitutionally inherent and natural right
of parents over their children.13
Not satisfied with the CA’s Decision, petitioner Grande interposed a
partial motion for reconsideration, particularly assailing the order of
the CA insofar as it decreed the change of the minors’ surname to
"Antonio." When her motion was denied, petitioner came to this
Court via the present petition. In it, she posits that Article 176 of the
Family Code––as amended by Republic Act No. (RA) 9255, couched
as it is in permissive language––may not be invoked by a father to
compel the use by his illegitimate children of his surname without
the consent of their mother.
We find the present petition impressed with merit.
The sole issue at hand is the right of a father to compel the use of
his surname by his illegitimate children upon his recognition of their
filiation. Central to the core issue is the application of Art. 176 of the
Family Code, originally phrased as follows:
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. The legitime of each illegitimate child
shall consist of one-half of the legitime of a legitimate child. Except
for this modification, all other provisions in the Civil Code governing
successional rights shall remain in force.
This provision was later amended on March 19, 2004 by RA
925514 which now reads:
Art. 176. – Illegitimate children shall use the surname and shall be
under the parental authority of their mother, and shall be entitled
to support in conformity with this Code. However, illegitimate
children may use the surname of their father if their filiation has
been expressly recognized by their father through the record of
birth appearing in the civil register, or when an admission in a public
document or private handwritten instrument is made by the father.
Provided, the father has the right to institute an action before the
regular courts to prove non-filiation during his lifetime. The legitime
of each illegitimate child shall consist of one-half of the legitime of a
legitimate child. (Emphasis supplied.)
From the foregoing provisions, it is clear that the general rule is that
an illegitimate child shall use the surname of his or her mother. The
exception provided by RA 9255 is, in case his or her filiation is
expressly recognized by the father through the record of birth
appearing in the civil register or when an admission in a public
document or private handwritten instrument is made by the father.
In such a situation, the illegitimate child may use the surname of the
father.
In the case at bar, respondent filed a petition for judicial approval of
recognition of the filiation of the two children with the prayer for
the correction or change of the surname of the minors from Grande
to Antonio when a public document acknowledged before a notary
public under Sec. 19, Rule 132 of the Rules of Court 15 is enough to
establish the paternity of his children. But he wanted more: a
judicial conferment of parental authority, parental custody, and an
official declaration of his children’s surname as Antonio.
Parental authority over minor children is lodged by Art. 176 on the
mother; hence, respondent’s prayer has no legal mooring. Since
parental authority is given to the mother, then custody over the
minor children also goes to the mother, unless she is shown to be
unfit.
Now comes the matter of the change of surname of the illegitimate
children. Is there a legal basis for the court a quo to order the
change of the surname to that of respondent?
Clearly, there is none. Otherwise, the order or ruling will contravene
the explicit and unequivocal provision of Art. 176 of the Family
Code, as amended by RA 9255.
Art. 176 gives illegitimate children the right to decide if they want to
use the surname of their father or not. It is not the father (herein
respondent) or the mother (herein petitioner) who is granted by law
the right to dictate the surname of their illegitimate children.
Nothing is more settled than that when the law is clear and free
from ambiguity, it must be taken to mean what it says and it must
be given its literal meaning free from any
interpretation.16 Respondent’s position that the court can order the
minors to use his surname, therefore, has no legal basis.
On its face, Art. 176, as amended, is free from ambiguity. And where
there is no ambiguity, one must abide by its words. The use of the
word "may" in the provision readily shows that an acknowledged
illegitimate child is under no compulsion to use the surname of his
illegitimate father. The word "may" is permissive and operates to
confer discretion17 upon the illegitimate children.
It is best to emphasize once again that the yardstick by which
policies affecting children are to be measured is their best interest.
On the matter of children’s surnames, this Court has, time and
again, rebuffed the idea that the use of the father’s surname serves
the best interest of the minor child. In Alfon v. Republic, 18 for
instance, this Court allowed even a legitimate child to continue
using the surname of her mother rather than that of her legitimate
father as it serves her best interest and there is no legal obstacle to
prevent her from using the surname of her mother to which she is
entitled. In fact, in Calderon v. Republic, 19 this Court, upholding the
best interest of the child concerned, even allowed the use of a
surname different from the surnames of the child’s father or
mother. Indeed, the rule regarding the use of a child’s surname is
second only to the rule requiring that the child be placed in the best
possible situation considering his circumstances.
In Republic of the Philippines v. Capote,20 We gave due deference to
the choice of an illegitimate minor to use the surname of his mother
as it would best serve his interest, thus:
The foregoing discussion establishes the significant connection of a
person’s name to his identity, his status in relation to his parents
and his successional rights as a legitimate or illegitimate child. For
sure, these matters should not be taken lightly as to deprive those
who may, in any way, be affected by the right to present evidence in
favor of or against such change.
The law and facts obtaining here favor Giovanni’s petition. Giovanni
availed of the proper remedy, a petition for change of name under
Rule 103 of the Rules of Court, and complied with all the procedural
requirements. After hearing, the trial court found (and the appellate
court affirmed) that the evidence presented during the hearing of
Giovanni’s petition sufficiently established that, under Art. 176 of
the Civil Code, Giovanni is entitled to change his name as he was
never recognized by his father while his mother has always
recognized him as her child. A change of name will erase the
impression that he was ever recognized by his father. It is also to his
best interest as it will facilitate his mother’s intended petition to
have him join her in the United States. This Court will not stand in
the way of the reunification of mother and son. (Emphasis supplied.)
An argument, however, may be advanced advocating the mandatory
use of the father’s surname upon his recognition of his illegitimate
children, citing the Implementing Rules and Regulations (IRR) of RA
9255,21 which states:
Rule 7. Requirements for the Child to Use the Surname of the Father
7.1 For Births Not Yet Registered
7.1.1 The illegitimate child shall use the surname of the father if a
public document is executed by the father, either at the back of the
Certificate of Live Birth or in a separate document.
7.1.2 If admission of paternity is made through a private instrument,
the child shall use the surname of the father, provided the
registration is supported by the following documents:
xxxx
7.2. For Births Previously Registered under the Surname of the
Mother
7.2.1 If filiation has been expressly recognized by the father, the
child shall use the surname of the father upon the submission of the
accomplished AUSF [Affidavit of Use of the Surname of the Father].
7.2.2 If filiation has not been expressly recognized by the father, the
child shall use the surname of the father upon submission of a
public document or a private handwritten instrument supported by
the documents listed in Rule 7.1.2.
7.3 Except in Item 7.2.1, the consent of the illegitimate child is
required if he/she has reached the age of majority. The consent may
be contained in a separate instrument duly notarized.
xxxx
Rule 8. Effects of Recognition
8.1 For Births Not Yet Registered
8.1.1 The surname of the father shall be entered as the last name of
the child in the Certificate of Live Birth. The Certificate of Live Birth
shall be recorded in the Register of Births.
xxxx
8.2 For Births Previously Registered under the Surname of the
Mother
8.2.1 If admission of paternity was made either at the back of the
Certificate of Live Birth or in a separate public document or in a
private handwritten document, the public document or AUSF shall
be recorded in the Register of Live Birth and the Register of Births as
follows:
"The surname of the child is hereby changed from (original
surname) to (new surname) pursuant to RA 9255."
The original surname of the child appearing in the Certificate of Live
Birth and Register of Births shall not be changed or deleted.
8.2.2 If filiation was not expressly recognized at the time of
registration, the public document or AUSF shall be recorded in the
Register of Legal Instruments. Proper annotation shall be made in
the Certificate of Live Birth and the Register of Births as follows:
"Acknowledged by (name of father) on (date). The surname of the
child is hereby changed from (original surname) on (date) pursuant
to RA 9255." (Emphasis supplied.)
Nonetheless, the hornbook rule is that an administrative issuance
cannot amend a legislative act. In MCC Industrial Sales Corp. v.
Ssangyong Corporation,22 We held:
After all, the power of administrative officials to promulgate rules in
the implementation of a statute is necessarily limited to what is
found in the legislative enactment itself. The implementing rules
and regulations of a law cannot extend the law or expand its
coverage, as the power to amend or repeal a statute is vested in the
Legislature. Thus, if a discrepancy occurs between the basic law and
an implementing rule or regulation, it is the former that prevails,
because the law cannot be broadened by a mere administrative
issuance — an administrative agency certainly cannot amend an act
of Congress.
Thus, We can disregard contemporaneous construction where there
is no ambiguity in law and/or the construction is clearly
erroneous.23 What is more, this Court has the constitutional
prerogative and authority to strike down and declare as void the
rules of procedure of special courts and quasi- judicial
bodies24 when found contrary to statutes and/or the
Constitution.25 Section 5(5), Art. VIII of the Constitution provides:
Sec. 5. The Supreme Court shall have the following powers:
xxxx
(5) Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice and procedure in all courts,
the admission to the practice of law, the Integrated Bar, and legal
assistance to the underprivileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade, and shall not
diminish, increase, or modify substantive rights. Rules of procedure
of special courts and quasi-judicial bodies shall remain effective
unless disapproved by the Supreme Court. (Emphasis supplied.)
Thus, We exercise this power in voiding the above-quoted
provisions of the IRR of RA 9255 insofar as it provides the
mandatory use by illegitimate children of their father’s surname
upon the latter’s recognition of his paternity.
To conclude, the use of the word "shall" in the IRR of RA 9255 is of
no moment. The clear, unambiguous, and unequivocal use of "may"
in Art. 176 rendering the use of an illegitimate father’s surname
discretionary controls, and illegitimate children are given the choice
on the surnames by which they will be known.
d. The case is REMANDED to the Regional Trial Court,
Branch 8 of Aparri, Cagayan for the sole purpose of
determining the surname to be chosen by the children
Jerard Patrick and Andre Lewis.
Rule 7 and Rule 8 of the Office of the Civil Registrar General
Administrative Order No. 1, Series of 2004 are DISAPPROVED and
hereby declared NULL and VOID.

At this juncture, We take note of the letters submitted by the SO ORDERED.

children, now aged thirteen (13) and fifteen (15) years old, to this
Court declaring their opposition to have their names changed to
"Antonio."26 However, since these letters were not offered before
and evaluated by the trial court, they do not provide any evidentiary
weight to sway this Court to rule for or against petitioner.27 A proper
inquiry into, and evaluation of the evidence of, the children's choice
of surname by the trial court is necessary.

WHEREFORE, the instant petition is PARTIALLY GRANTED. The July

24, 2012 Decision of the Court of Appeals in CA-G.R. CV No. 96406 is
MODIFIED, the dispositive portion of which shall read:

WHEREFORE, the appeal is partly GRANTED. Accordingly. the

appealed Decision of the Regional Trial Court Branch 8, Aparri
Cagayan in SP Proc. Case No. 11-4492 is MODIFIED in part and shall
hereinafter read as follows:

a. [Antonio] is ORDERED to deliver the minor children

Jerard Patrick and Andre Lewis to the custody of their
mother herein appellant, Grace Grande who by virtue
hereof is hereby awarded the full or sole custody of these
minor children;

b. [Antonio] shall have visitation rights28 at least twice a

week, and may only take the children out upon the written
consent of [Grande]:

c. The parties are DIRECTED to give and share in support of

the minor children Jerard Patrick and Andre Lewis in the
amount of ₱30,000.00 per month at the rate of 70% for
[Antonio] and 30% for [Grande]; and
SECOND DIVISION
G.R. No. 117209 February 9, 1996
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
HON. JOSE R. HERNANDEZ, in his capacity as Presiding Judge,
Regional Trial Court, Branch 158, Pasig City and SPOUSES VAN
MUNSON y NAVARRO and REGINA MUNSON y After considering the evidence and arguments of the contending
ANDRADE, respondents.
DECISION
REGALADO, J.:
Indeed, what's in a name, as the Bard of Avon has written, since a
rose by any other name would smell as sweet?
This could well be the theme of the present appeal
by certiorari which challenges, on pure questions of law, the order
of the Regional Trial Court, Branch 158, Pasig City, dated September
13, 1994 1 in JDRC Case No. 2964. Said court is faulted for having
approved the petition for adoption of Kevin Earl Bartolome Moran
and simultaneously granted the prayer therein for the change of the
first name of said adoptee to Aaron Joseph, to complement the
surname Munson y Andrade which he acquired consequent to his
adoption.
The facts are undisputed. On March 10, 1994, herein private
respondent spouses, Van Munson y Navarro and Regina Munson y
Andrade, filed a p petition 2 to adopt the minor Kevin Earl Bartolome
Moran, duly alleging therein the jurisdictional facts required by Rule
99 of the Rules of Court for adoption, their qualifications as and
fitness to be adoptive parents, as well as the circumstances under
and by reason of which the adoption of the aforenamed minor was
sought. In the very same petition, private respondents prayed for
the change of the first name or said minor adoptee to Aaron Joseph,
the same being the name with which he was baptized in keeping
with religious tradition and by which he has been called by his
adoptive family, relatives and friends since May 6, 1993 when he
arrived at private respondents' residence. 3
At the hearing on April 18, 1994, petitioner opposed the inclusion of
the relief for change of name in the same petition for adoption. In
its formal opposition dated May 3, 1995, 4 petitioner reiterated its
objection to the joinder of the petition for adoption and the
petitions for change of name in a single proceeding, arguing that
these petition should be conducted and pursued as two separate
proceedings.
parties, the trial court ruled in favor of herein private respondents in
this wise:
WHEREFORE, minor child Kevin Earl Bartolome Moran is
freed from all legal obligations of obedience and
maintenance with respect to his natural parents, and for all
legal intents and purposes shall be known as Aaron Joseph
Munson y Andrade, the legally adopted child of Van
Munson and Regina Munson effective upon the filing of the
petition on March 10, 1994. As soon as the decree of
adoption becomes final and executory, it shall be recorded
in the Office of the Local Civil Registrar of Pasig, Metro
Manila pursuant to Section 8, Rule 99 and Section 6, Rule
103, respectively, of the Rules of Court, and shall be
annotated in the record of birth of the adopted child, which
in this case is in Valenzuela, Metro Manila, where the child
was born. Likewise, send a copy of this Order to the
National Census and Statistics Office, Manila, for its
appropriate action consisten(t) herewith. 5
At this juncture, it should be noted that no challenge has been
raised by petitioner regarding the fitness of herein private
respondents to be adopting parents nor the validity of the decree of
adoption rendered in their favor. The records show that the latter
have commendably established their qualifications under the law to
be adopters, 6 and have amply complied with the procedural
requirements for the petition for adoption, 7 with the findings of the
trial court being recited thus:
To comply with the jurisdictional requirements, the Order
It has been said all too often enough that the factual findings of the
of this Court dated March 16, 1994 setting this petition for
lower court, when sufficiently buttressed by legal and evidential
hearing (Exh. "A") was published in the March 31, April 6
support, are accorded high respect and are binding and conclusive
and 13, 1994 issues of the Manila Chronicle, a newspaper
upon this Court. 9 Accordingly, we fully uphold the propriety of that
of general circulation (Exhs. "B" to "E" and submarkings). . .
.
xxx xxx xxx
Petitioners apart from being financially able, have no
criminal nor derogatory record (Exhs. "K" to "V"); and are
physically fit to be the adoptive parents of the minor child
Kevin (Exh. "W"). Their qualification to become the
adoptive parents of Kevin Earl finds support also in the
Social Case Study Report prepared by the DSWD through
Social Worker Luz Angela Sonido, the pertinent portion of
which reads:
"Mr. and Mrs. Munson are very religious,
responsible, mature and friendly individuals. They
are found physically healthy; mentally fit,
spiritually and financially capable to adopt Kevin
Earl Moran aka Aaron Joseph.
"Mr. and Mrs. Munson have provided AJ with all
his needs. They unselfishly share their time, love
and attention to him. They are ready and willing to
continuously provide him a happy and secure
home life.
"Aaron Joseph, on the other hand, is growing
normally under the care of the Munsons. He had
comfortably settled in his new environment. His
stay with the Munsons during the six months trial
custody period has resulted to a close bond with
Mr. and Mrs. Munson and vice-versa.
"We highly recommend to the Honorable Court
that the adoption of Kevin Earl Moran aka Aaron
Joseph by Mr. and Mrs. Van Munson be
legalized." 8
portion of the order of the court below granting the petition, for
adoption.
The only legal issues that need to be resolved may then be
synthesized mainly as follows. (1) whether or not the court a
quo erred in granting the prayer for the change of the registered
proper or given name of the minor adoptee embodied in the
petition for adoption; and (2) whether or not there was lawful
ground for the change of name.
I. It is the position of petitioner that respondent judge exceeded his
jurisdiction when he additionally granted the prayer for the change
of the given or proper name of the adoptee in a petition for
adoption.
Petitioner argues that a petition for adoption and a petition for
change of name are two special proceedings which, in substance
and purpose, are different from and are not related to each other,
being respectively governed by distinct sets of law and rules. In
order to be entitled to both reliefs, namely, a decree of adoption
and an authority to change the giver or proper name of the
adoptee, the respective proceedings for each must be instituted
separately, and the substantive and procedural requirements
therefor under Articles 183 to 193 of the Family Code in relation to
Rule 99 of the Rules of Court for adoption, and Articles 364 to 380 of
the Civil Code in relation to Rule 103 of the Rules of Court for
change of name, must correspondingly be complied with. 10
A perusal of the records, according to petitioner, shows that only
the laws and rules on adoption have been observed, but not those
for a petition for change of name. 11 Petitioner further contends that
what the law allows is the change of the surname of the adoptee, as
a matter of right, to conform with that of the adopter and as a
natural consequence of the adoption thus granted. If what is sought
is the change of the registered given or proper name, and since this
would involve a substantial change of one's legal name, a petition
for change of name under Rule 103 should accordingly be instituted,
with the substantive and adjective requisites therefor being
conformably satisfied. 12
Private respondents, on the contrary, admittedly filed the petition
for adoption with a prayer for change of name predicated upon
Section 5, Rule 2 which allows permissive joinder of causes of action
in order to avoid multiplicity of suits and in line with the policy of
discouraging protracted and vexatious litigations. It is argued that
there is no prohibition in the Rules against the joinder of adoption
and change of name being pleaded as two separate but related
causes of action in a single petition. Further, the conditions for
permissive joinder of causes of action, i.e., jurisdiction of the court,
proper venue and joinder of parties, have been met. 13
Corollarily, petitioner insists on strict adherence to the rule
regarding change of name in view of the natural interest of the State
in maintaining a system of identification of its citizens and in the
orderly administration of justice. 14Private respondents argue
otherwise and invoke a liberal construction and application of the
Rules, the welfare and interest of the adoptee being the primordial
concern that should be addressed in the instant proceeding. 15
On this score, the trial court adopted a liberal stance in holding that
- decree of adoption. It is the change of the adoptee's surname to
Furthermore, the change of name of the child from Kevin
Earl Bartolome to Aaron Joseph should not be treated
strictly, it appearing that no rights have been prejudiced by
said change of name. The strict and meticulous observation
of the requisites set forth by Rule 103 of the Rules of Court
is indubitably for the purpose of preventing fraud, ensuring
that neither State nor any third person should be
prejudiced by the grant of the petition for change of name
under said rule, to a petitioner of discernment.
The first name sought to be changed belongs to an infant
barely over a year old. Kevin Earl has not exercised full civil
rights nor engaged in any contractual obligations. Neither
can he nor petitioners on his behalf, be deemed to have
any immoral, criminal or illicit purpose for seeking said
cha(n)ge of name. It stands to reason that there is no way
that the state or any person may be so prejudiced by the
action for change of Kevin Earl's first name. In fact, to
obviate any possible doubts on the intent of petitioners,
the prayer for change of name was caused to be published
together with the petition for adoption. 16
Art. 189 of the Family Code enumerates in no uncertain terms the
legal effects of adoption:
(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;
(2) The parental authority of the parents by nature over the
adopted shall terminate and be vested in the adopters,
except that if the adopter is the spouse of the parent by
nature of the adopted, parental authority over the adopted
shall be exercised jointly by both spouses; and
(3) The adopted shall remain an intestate heir of his
parents and other blood relatives.
Clearly, the law allows the adoptee, as a matter of right and
obligation, to bear the surname of the adopter, upon issuance of the
follow that of the adopter which is the natural and necessary
consequence of a grant of adoption and must specifically be
contained in the order of the court, in fact, even if not prayed for by
petitioner.
However, the given or proper name, also known as
the first or Christian name, of the adoptee must remain as it was
originally registered in the civil register. The creation of an adoptive
relationship does not confer upon the adopter a license to change
the adoptee's registered Christian or first name. The automatic
change thereof, premised solely upon the adoption thus granted, is
beyond the purview of a decree of adoption. Neither is it a mere
incident in nor an adjunct of an adoption proceeding, such that a
prayer therefor furtively inserted in a petition for adoption, as in this
case, cannot properly be granted.
The name of the adoptee as recorded in the civil register should be
used in the adoption proceedings in order to vest the court with
jurisdiction to hear and determine the same, 17 and shall continue to
be so used until the court orders otherwise. Changing the given or
proper name of a person as recorded in the civil register is a
substantial change in one's official or legal name and cannot be
authorized without a judicial order. The purpose of the statutory
procedure authorizing a change of name is simply to have, wherever
possible, a record of the change, and in keeping with the object of
the statute, a court to which the application is made should
normally make its decree recording such change. 18
The official name of a person whose birth is registered in the civil
register is the name appearing therein. If a change in one's name is
desired, this can only be done by filing and strictly complying with
the substantive and procedural requirements for a special
proceeding for change of name under Rule 103 of the Rules of
Court, wherein the sufficiency of the reasons or grounds therefor
can be threshed out and accordingly determined.
Under Rule 103, a petition for change of name shall be filed in the
regional trial court of the province where the person desiring to
change his name resides. It shall be signed and verified by the
person desiring his name to be changed or by some other person in
his behalf and shall state that the petitioner has been a bona
fide resident of the province where the petition is filed for at least
three years prior to such filing, the cause for which the change of
name is sought, and the name asked for. An order for the date and
place of hearing shall be made and published, with the Solicitor
General or the proper provincial or city prosecutor appearing for the
Government at such hearing. It is only upon satisfactory proof of the
veracity of the allegations in the petition and the reasonableness of
the causes for the change of name that the court may adjudge that
the name be changed as prayed for in the petition, and shall furnish
a copy of said judgment to the civil registrar of the municipality
concerned who shall forthwith enter the same in the civil register.
A petition for change of name being a proceeding in rem, strict
compliance with all the requirements therefor is indispensable in
order to vest the court with jurisdiction for its adjudication. 19 It is an
independent and discrete special proceeding, in and by itself,
governed by its own set of rules. A fortiori, it cannot be granted by
means of any other proceeding. To consider it as a mere incident or
an offshoot of another special proceeding would be to denigrate its
role and significance as the appropriate remedy available under our
remedial law system.
The Solicitor General correctly points out the glaring defects of the
subject petition insofar as it seeks the change of name of the
adoptee, 20 all of which taken together cannot but lead to the
conclusion that there was no petition sufficient in form and
substance for change of name as would rightfully deserve an order
therefor. It would be procedurally erroneous to employ a petition
for adoption to effect a change of name in the absence of the
corresponding petition for the latter relief at law.
Neither can the allowance of the subject petition, by any stretch of
imagination and liberality, be justified under the rule allowing
permissive joinder of causes of action. Moreover, the reliance by
private respondents on the pronouncements in Briz vs. Brit, et
al. 21 and Peyer vs. Martinez, et al. 22 is misplaced. A restatement of
the rule and jurisprudence on joinder of causes of action would,
therefore, appear to be called for.
By a joinder of actions, or more properly, a joinder of causes of
action, is meant the uniting of two or more demands or rights of
action in one action; the statement of more than one cause of
action in a declaration. 23 It is the union of two or more civil causes
of action, each of which could be made the basis of a separate suit,
in the same complaint, declaration or petition. A plaintiff may under
certain circumstances join several distinct demands, controversies
or rights of action in one declaration, complaint or petition. 24
As can easily be inferred from the above definitions, a party is
generally not required to join in one suit several distinct causes of
action. The joinder of separate causes of action, where allowable, is
permissive and not mandatory in the absence of a contrary
statutory provision, even though the causes of action arose from the
same factual setting and might under applicable joinder rules be
joined. 25 Modern statutes and rules governing joinders are intended
to avoid a multiplicity of suits and to promote the efficient
administration of justice wherever this may be done without
prejudice to the rights of the litigants. To achieve these ends, they
are liberally construed. 26
While joinder of causes of action is largely left to the option of a
party litigant, Section 5, Rule 2 of our present Rules allows causes of
action to be joined in one complaint conditioned upon the following
requisites: (a) it will not violate the rules on jurisdiction, venue and
joinder of parties; and (b) the causes of action arise out of the same
contract, transaction or relation between the parties, or are for
demands for money or are of the same nature and character.
The objectives of the rule or provision are to avoid a multiplicity of
suits where the same parties and subject matter are to be dealt with
by effecting in one action a complete determination of all matters in
controversy and litigation between the parties involving one subject
matter, and to expedite the disposition of litigation at minimum
cost. The provision should be construed so as to avoid such
multiplicity, where possible, without prejudice to the rights of the
litigants. Being of a remedial nature, the provision should be
liberally construed, to the end that related controversies between
the same parties may be adjudicated at one time; and it should be
made effectual as far as practicable, 27with the end in view of
promoting the efficient administration of justice. 28
The statutory intent behind the provisions on joinder of causes of
action is to encourage joinder of actions which could reasonably be
said to involve kindred rights and wrongs, although the courts have
not succeeded in giving a standard definition of the terms used or in
developing a rule of universal application. The dominant idea is to
permit joinder of causes of action, legal or equitable, where there is
some substantial unity between them. 29 While the rule allows a
plaintiff to join as many separate claims as he may have, there
should nevertheless be some unity in the problem presented and a
common question of law and fact involved, subject always to the
restriction thereon regarding jurisdiction, venue and joinder of
parties. Unlimited joinder is not authorized. 30
Our rule on permissive joinder of causes of action, with
the proviso subjecting it to the correlative rules on jurisdiction,
venue and joinder of parties 31 and requiring a conceptual unity in
the problems presented, effectively disallows unlimited joinder. 32
Turning now to the present petition, while it is true that there is no
express prohibition against the joinder of a petition for adoption
and for change of name, we do not believe that there is any relation
between these two petitions, nor are they of the same nature or
character, much less do they present any common question of fact
or law, which conjointly would warrant their joinder. In short, these
petitions do not rightly meet the underlying test of conceptual unity
demanded to sanction their joinder under our Rules.
As keenly observed and correctly pointed out by the Solicitor
General -
A petition for adoption and a petition for change of name
are two special proceedings which, in substance and
purpose, are different from each other. Each action is
individually governed by particular sets of laws and rules.
These two proceedings involve disparate issues. In a
petition for adoption, the court is called upon to evaluate
the proposed adopter's fitness and qualifications to bring
up and educate the adoptee properly (Prasnick vs.
Republic, 99 Phil. 665). On the other hand, in a petition for
change of name, no family relations are created or affected
for what is looked into is the propriety and reasonableness
of the grounds supporting the proposed change of name
(Yu vs. Republic, 17 SCRA 253).
xxx xxx xxx
. . . Hence, the individual merits of each issue must be
separately assessed and determined for neither action is
dependent on the other. 33
The rule on permissive joinder of: causes of action is clear.
Joinder may be allowed only if the actions show a
commonality of relationship and conform to the rules on
jurisdiction, venue and joinder of parties (Section 5, Rule 2,
Rules of Court).
These conditions are wanting in the instant case. As already
pointed out in our Petition (pp. 9-10), an action for
adoption and an action for change of name are, in nature
and purpose, not related to each other and do not arise out
of the same relation between the parties. While what is
cogent in an adoption proceeding is the proposed adopter's
fitness and qualifications to adopt, a petition for change of
first name may only prosper upon proof of reasonable and
compelling grounds supporting the change requested.
Fitness to adopt is not determinative of the sufficiency of
reasons justifying a change of name. And similarly, a
change of first name cannot be justified in view of a finding
that the proposed adopter was found fit to adopt. There is
just no way that the two actions can connect and find a
common ground, thus the joinder would be improper.
In contending that adoption and change of name may be
similarly sought in one petition, private respondents rely
upon Peyer vs. Martinez and Briz vs. Briz (p. 4, Comment)
We however submit that these citations are non sequitur.
In both cases, the fact of intimacy and relatedness of the
issues is so pronounced. In Peyer, an application to
pronounce the husband an absentee is obviously
intertwined with the action to transfer the management of
conjugal assets to the wife. In Briz, an action for declaration
of heirship was deemed a clear condition precedent to an
action to recover the land subject of partition and
distribution proceeding. However, the commonality of
relationship which stands out in both cases does not
characterize the present action for adoption and change of
name. Thus the rulings in Peyer and Briz find no place in the
case at bar.
Besides, it is interesting to note that although a joinder of
the two actions was, in Briz, declared feasible, the Supreme
Court did not indorse an automatic joinder and instead
remanded the matter for further proceedings, granting
leave to amend the pleadings and implead additional
parties-defendants for a complete determination of the
controversy (Briz vs. Briz, 43 Phil. 763, 770). Such
cautionary stance all the more emphasizes that although
joinders are generally accepted, they are not allowed
where the conditions are not satisfactorily met. 34
It furthermore cannot be said that the proposed joinder in this
instance will make for a complete determination of all matters
pertaining to the coetaneous grant of adoption and change of name
of the adoptee in one petition. As already stated, the subject
petition was grossly insufficient in form and substance with respect
to the prayer for change of name of the adoptee. The policy of
avoiding multiplicity of suits which underscores the rule on
permissive joinder of causes of action is addressed to suits that are
intimately related and also present interwoven and dependent
issues which can be most expeditiously and comprehensively settled
by having just one judicial proceeding, but not to suits or actions
whose subject matters or corresponding reliefs are unrelated or
diverse such that they are best taken up individually.
In Nabus vs. Court of Appeals, et al., 35 the Court clarified the rule on
permissive joinder of causes of action:
The rule is clearly permissive. It does not constitute an
obligatory rule, as there is no positive provision of law or
any rule of jurisprudence which compels a party to join all
his causes of action and bring them at one and the same
time. Under the present rules, the provision is still that the
plaintiff may, and not that he must, unite several causes of
action although they may be included in one of the classes
specified. This, therefore, leaves it to the plaintiff's option
whether the causes of action shall be joined in the same
action, and no unfavorable inference may be drawn from
his failure or refusal to do so. He may always file another
action based on the remaining cause or causes of action
within the prescriptive period therefor. (Emphasis
supplied.)
The situation presented in this case does not warrant exception
from the Rules under the policy of liberal construction thereof in
general, and for change of name in particular, as proposed by
private respondents and adopted by respondent judge. Liberal
construction of the Rules may be invoked in situations wherein
there may be some excusable formal deficiency or error in a
pleading, provided that the same does not subvert the essence of
the proceeding and connotes at least a reasonable attempt at
compliance with the Rules. Utter disregard of the Rules cannot justly
be rationalized by harking on the policy of liberal construction.
The Court is not impervious to the frustration that litigants and
lawyers alike would at times encounter in procedural bureaucracy
but imperative justice requires correct observance of indispensable
technicalities precisely designed to ensure its proper
dispensation. 36 It has long been recognized that strict compliance
with the Rules of Court is indispensable for the prevention of
needless delays and for the orderly and expeditious dispatch of
judicial business. 37
Procedural rules are not to be disdained as mere technicalities that
may be ignored at will to suit the convenience of a party. Adjective
law is important in ensuring the effective enforcement of
substantive rights through the orderly and speedy administration of
justice. These rules are not intended to hamper litigants or
complicate litigation but, indeed to provide for a system under
which a suitor may be heard in the correct form and manner and at
the prescribed time in a peaceful confrontation before a judge
whose authority they acknowledge. 38
It cannot be overemphasized that procedural rules have their own
wholesome rationale in the orderly administration of justice. Justice
has to be administered according to the Rules in order to obviate
arbitrariness, caprice, or whimsicality. 39 We have been cautioned
and reminded in Limpot vs. CA, et al. that: 40
Rules of procedure are intended to ensure the orderly
administration of justice and the protection of substantive
rights in judicial and extrajudicial proceedings. It is a
mistake to propose that substantive law and adjective law
are contradictory to each other or, as has often been
suggested, that enforcement of procedural rules should
never be permitted if it will result in prejudice to the
substantive rights of the litigants. This is not exactly true;
the concept is much misunderstood. As a matter of fact,
the policy of the courts is to give both kinds of law, as
complementing each other, in the just and speedy
resolution of the dispute between the parties. Observance
of both substantive rights is equally guaranteed by due
process, whatever the source of such rights, be it the
Constitution itself or only a statute or a rule of court.
xxx xxx xxx
. . . (T)hey are required to be followed except only when for
the most persuasive of reasons they may be relaxed to
relieve a litigant of an injustice not commensurate with the
degree of his thoughtlessness in not complying with the
procedure prescribed. . . . While it is true that a litigation is
not a game of technicalities, this does not mean that the
Rules of Court may be ignored at will and at random to the
prejudice of the orderly presentation and assessment of
the issues and their just resolution. Justice eschews
anarchy.
Only exceptionally in very extreme circumstances, when a rule
deserts its proper office as an aid to justice and becomes its great
hindrance and chief enemy such that rigid application thereof
frustrates rather than promotes substantial justice, will
technicalities deserve scant consideration from the court. In such
situations, the courts are empowered, even obligated, to suspend
the operation of the rules. 41
We do not perceive any injustice that can possibly be visited upon
private respondents by following the reglementary procedure for
the change in the proper or given name that they seek for their
adopted child. We are hard put to descry the indispensability of a
change of the first name of the adoptee to his welfare and benefit.
Nor is the said change of such urgency that would justify an
exemption from or a relaxation of the Rules. It is the State that
stands to be prejudiced by a wanton disregard of Rule 103 in this
case, considering its natural interest in the methodical
administration of justice and in the efficacious maintenance of a
system of identification of its citizens.
The danger wrought by non-observance of the Rules is that the
violation of or failure to comply with the procedure prescribed by
law prevents the proper determination of the questions raised by
the parties with respect to the merits of the case and makes it
necessary to decide, in the first place, such questions as relate to
the form of the action. The rules and procedure laid down for the
trial court and the adjudication of cases are matters of public
policy. 42They are matters of public order and interest which can in
no wise be changed or regulated by agreements between or
stipulations by parties to an action for their singular convenience. 43
In Garcia vs. Republic, 44 we are reminded of the definiteness in the
application of the Rules and the importance of seeking relief under
the appropriate proceeding:
. . . The procedure set by law should be delimited. One
should not confuse or misapply one procedure for another
lest we create confusion in the application of the proper
remedy.
Respondent judge's unmindful disregard of procedural tenets aimed
at achieving stability of procedure is to be deplored. He exceeded
his prerogatives by granting the prayer for change of name, his
order being unsupported by both statutory and case law. The novel
but unwarranted manner in which he adjudicated this case may be
characterized as a regrettable abdication of the duty to uphold the
teachings of remedial law and jurisprudence.
II. Petitioner avers that it was error for the lower court to grant the
petition for change of name without citing or proving any lawful
ground. Indeed, the only justification advanced for the change of
name was the fact of the adoptee's baptism under the name Aaron
Joseph and by which he has been known since he came to live with
private respondents. 45
Private respondents, through a rather stilted ratiocination, assert
that upon the grant of adoption, the subject minor adoptee ipso
facto assumed a new identification and designation, that is, Aaron
Joseph which was the name given to him during the baptismal rites.
Allowing the change of his first name as prayed for in the petition,
so they claim, merely confirms the designation by which he is known
and called in the community in which he lives. This largely echoes
the opinion of the lower court that naming the child Aaron Joseph
was symbolic of naming him at birth, and that they, as adoptive
parents, have as much right as the natural parents to freely select
the first name of their adopted child. 46
The lower court was sympathetic to herein private respondents and
ruled on this point in this manner:
As adoptive parents, petitioner like other parents may
freely select the first name given to his/her child as it is
only the surname to which the child is entitled that is fixed
by law. . . .
xxx xxx xxx
The given name of the minor was Kevin Earl, a name given
for no other purpose than for identification purposes in a
birth certificate by a woman who had all intentions of
giving him away. The naming of the minor as Aaron Joseph
by petitioners upon the grant of their petition for adoption
is symbolic of naming the minor at birth. 47
We cannot fathom any legal or jurisprudential basis for this
attenuated ruling of respondent judge and must thus set it aside.
It is necessary to reiterate in this discussion that a person's name is
a word or combination of words by which he is known and
identified, and distinguished from others, for the convenience of the
world at large in addressing him, or in speaking of or dealing with
him. 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:
the given or proper name and the surname or family name. The
giver 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. 48
By Article 408 of the Civil Code, a person's birth must be entered in
the civil register. The official name of a person is that given him in
the civil register. That is his name in the eyes of the law. 49 And once
the name of a person is officially entered in the civil register, Article
376 of the same Code seals that identity with its precise mandate:
no person can change his name or surname without judicial
authority. This statutory restriction is premised on the interest of
the State in names borne by individuals and entities for purposes of
identification. 50
By reason thereof, the only way that the name of person can be
changed legally is through a petition for change of name under Rule
103 of the Rules of Court. 51 For purposes of an application for
change of name under Article 376 of the Civil Code and correlatively
implemented by Rule 103, the only name that may be changed is
the true or official name recorded in the civil register. As earlier
mentioned, a petition for change of name being a proceeding in
rem, impressed as it is with public interest, strict compliance with all
the requisites therefor in order to vest the court with jurisdiction is
essential, and failure therein renders the proceedings a nullity. 52
It must likewise be stressed once again 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. Before a person can be authorized to change his name,
that is, his true or official name or that which appears in his birth
certificate or is entered in the civil register, he must show proper
and reasonable cause or any convincing reason which may justify
such change. 53
Jurisprudence has recognized, inter alia, the following grounds as
being sufficient to warrant a change of name: (a) when the name is
ridiculous, dishonorable or extremely difficult to write or
pronounce; (b) when the change results as 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 for a fraudulent purpose or that the change of name
would prejudice public interest. 54
Contrarily, a petition for change of name grounded on the fact that
one was baptized by another name, under which he has been
known and which he used, has been denied inasmuch as the use of
baptismal names is not sanctioned. 55 For, in truth, baptism is not a
condition sine qua non to a change of name. 56 Neither does the fact
that the petitioner has been using a different name and has become
known by it constitute proper and reasonable cause to legally
authorize a change of name. 57 A name given to a person in the
church records or elsewhere or by which be is known in the
community - when at variance with that entered in the civil register
- is unofficial and cannot be recognized as his real name. 58
The instant petition does not sufficiently persuade us to depart from
such rulings of long accepted wisdom and applicability. The only
grounds offered to justify the change of name prayed for was that
the adopted child had been baptized as Aaron Joseph in keeping
with the religious faith of private respondents and that it was the
name by which he had been called and known by his family,
relatives and friends from, the time he came to live with private
respondents. 59 Apart from suffusing their pleadings with
sanctimonious entreaties for compassion, none of the justified
grounds for a change of name has been alleged or established by
private respondents. The legal bases chosen by them to bolster their
cause have long been struck down as unavailing for their present
purposes. For, to allow the adoptee herein to use his baptismal
name, instead of his name registered in the civil register, would be
to countenance or permit that which has always been frowned
upon. 60
The earlier quoted posturing of respondent judge, as expressed in
his assailed order that -
(a)s adoptive parents, petitioners like other parents may
freely select the first name given to his/her child as it is
only the surname to which the child is entitled that is fixed
by law. . . .
The given name of the minor was Kevin Earl, a name given
for no other purpose than for identification purposes in a
birth certificate by a woman who had all the intentions of
giving him away. The naming of the minor as Aaron Joseph
by petitioners upon grant of their petition for adoption is
symbolic of naming the minor at birth.
and supposedly based on the authority of Republic vs. Court of
Appeals and Maximo Wong, supra, painfully misapplies the ruling
therein enunciated.
The factual backdrop of said case is not at all analogous to that of
the case at bar. In the Wong case, therein petitioner Maximo Wong
sought the change of his surname which he acquired by virtue of the
decree of adoption granted in favor of spouses Hoong Wong and
Concepcion Ty Wong. Upon reaching the age of majority, he filed a
petition in court to change his surname from Wong to Alcala, which
was his surname prior to the adoption. He adduced proof that the
use of the surname Wong caused him embarrassment and isolation
from friends and relatives in view of a suggested Chinese ancestry
when in reality he is a Muslim Filipino residing in a Muslim
community, thereby hampering his business and social life, and that
his surviving adoptive mother consented to the change of name
sought. This Court granted the petition and regarded the change of
the surname as a mere incident in, rather than the object of, the
adoption.
It should be noted that in said case the change of surname, not the
given name, and the legal consequences thereof in view of the
adoption were at issue. That it was sought in a petition duly and
precisely filed for that purpose with ample proof of the lawful
grounds therefor only serves to reinforce the imperative necessity
of seeking relief under and through the legally prescribed
procedures.
Here, the Solicitor General meritoriously explained that:
 Respondent Judge failed to distinguish between a situation
wherein a child is being named for the first time by his
natural parent, as against one wherein, a child is previously
conferred a first name by his natural parent, and such
name is subsequently sought to be disregarded and
changed by the adoptive parents. In the first case, there is
no dispute that natural parents have the right to freely
select and give the child's first name for every person,
including juridical persons, must have a name (Tolentino,
A., Commentaries and Jurisprudence on the Civil Code, Vo.
I, 1987 edition, page 721). In the second case, however, as
in the case at bar, private respondents, in their capacities
as adopters, cannot claim a right to name the minor
adoptee after such right to name the child had already
been exercised by the natural parent. Adopting parents
have not been conferred such right by law, hence, the right
assertes by private respondents herein remains but
illusory. Renaming the adoptee cannot be claimed as a
right. It is merely a privilege necessitating judicial consent
upon compelling grounds. 61
The liberality with which this Court treats matters leading up to
adoption insofar as it carries out the beneficent purposes of
adoption and ensures to the adopted child the rights and privileges
arising therefrom, ever mindful that the paramount consideration is
the overall benefit and interest of the adopted child, 62 should be
understood in its proper context. It should not be misconstrued or
misinterpreted to extend to inferences beyond the contemplation of
law and jurisprudence.
consequence of adoption, even for the most noble intentions and
moving supplications, is unheard of in law and consequently cannot
be favorably considered. To repeat, the change of the surname of
the adoptee as a result of the adoption and to follow that of the
adopter does not lawfully extend to or include the proper or given
name. Furthermore, factual realities and legal consequences, rather
than sentimentality and symbolisms, are what are of concern to the
Court.
Finally, it is understood that this decision does not entirely foreclose
and is without prejudice to, private respondents' privilege to legally
change the proper or given name of their adopted child, provided
that the same is exercised, this time, via a proper petition for
change of name. Of course, the grant thereof is conditioned on strict
compliance with all jurisdictional requirements and satisfactory
proof of the compelling reasons advanced therefor.
WHEREFORE, on the foregoing premises, the assailed order of
respondent judge is hereby MODIFIED. The legally adopted child of
private respondents shall henceforth be officially known as Kevin
Earl Munson y Andrade unless a change thereof is hereafter
effected in accordance with law. In all other respects, the order is
AFFIRMED.
SO ORDERED.

The practically unrestricted freedom of the natural parent to select

the proper or given name of the child presupposes that no other
name for it has theretofore been entered in the civil register. Once
such name is registered, regardless of the reasons for such choice
and even if it be solely for the purpose of identification, the same
constitutes the official name. This effectively authenticates the
identity of the person and must remain unaltered save when, for
the most compelling reasons shown in an appropriate proceeding,
its change may merit judicial approval.

While the right of a natural parent to name the child is recognized,

guaranteed and protected under the law, the so-called right of an
adoptive parent to re-name an adopted child by virtue or as a
SECOND DIVISION
G.R. No. 159966. March 30, 2005
IN RE: PETITION FOR CHANGE OF NAME AND/OR
CORRECTION/CANCELLATION OF ENTRY IN CIVIL REGISTRY OF
JULIAN LIN CARULASAN WANG also known as JULIAN LIN WANG,
to be amended/corrected as JULIAN LIN WANG, JULIAN LIN WANG,
duly represented by his mother ANNA LISA WANG, Petitioners,
vs.
CEBU CITY CIVIL REGISTRAR, duly represented by the Registrar
OSCAR B. MOLO, Respondents.
DECISION
TINGA, J.:
I will not blot out his name out of the book of life.
Revelation 3:5
On 22 September 2002, petitioner Julian Lin Carulasan Wang, a
minor, represented by his mother Anna Lisa Wang, filed a petition
dated 19 September 2002 for change of name and/or
correction/cancellation of entry in the Civil Registry of Julian Lin
Carulasan Wang. Petitioner sought to drop his middle name and
have his registered name changed from Julian Lin Carulasan Wang
to Julian Lin Wang.
The petition was docketed as Special Proceedings Case No. 11458
CEB and raffled to the Regional Trial Court (RTC) of Cebu City,
Branch 57.
The RTC established the following facts:
Julian Lin Carulasan Wang was born in Cebu City on February 20,
1998 to parents Anna Lisa Wang and Sing-Foe Wang who were then
not yet married to each other. When his parents subsequently got
married on September 22, 1998, ...they executed a deed of
legitimation of their son so that the child’s name was changed from
Julian Lin Carulasan to Julian Lin Carulasan Wang….
The parents of Julian Lin Carulasan Wang plan to stay in Singapore
for a long time because they will let him study there together with
his sister named Wang Mei Jasmine who was born in Singapore….
Since in Singapore middle names or the maiden surname of the
mother are not carried in a person’s name, they anticipate that
Julian Lin Carulasan Wang will be discriminated against because of
his current registered name which carries a middle name. Julian and
his sister might also be asking whether they are brother and sister
since they have different surnames. Carulasan sounds funny in
Singapore’s Mandarin language since they do not have the letter "R"
but if there is, they pronounce it as "L." It is for these reasons that
the name of Julian Lin Carulasan Wang is requested to be changed
to Julian Lin Wang.1
On 30 April 2003, the RTC rendered a decision denying the
petition.2 The trial court found that the reason given for the change
of name sought in the petition—that is, that petitioner Julian may
be discriminated against when studies in Singapore because of his
middle name—did not fall within the grounds recognized by law.
The trial court ruled that the change sought is merely for the
convenience of the child. Since the State has an interest in the name
of a person, names cannot be changed to suit the convenience of
the bearers. Under Article 174 of the Family Code, legitimate
children have the right to bear the surnames of the father and the
mother, and there is no reason why this right should now be taken
from petitioner Julian, considering that he is still a minor. The trial
court added that when petitioner Julian reaches the age of majority,
he could then decide whether he will change his name by dropping
his middle name.3
Petitioner filed a motion for reconsideration of the decision but this
was denied in a resolution dated 20 May 2004.4The trial court
maintained that the Singaporean practice of not carrying a middle
name does not justify the dropping of the middle name of a
legitimate Filipino child who intends to study there. The dropping of
the middle name would be tantamount to giving due recognition to
or application of the laws of Singapore instead of Philippine law
which is controlling. That the change of name would not prejudice
public interest or would not be for a fraudulent purpose would not
suffice to grant the petition if the reason for the change of name is
itself not reasonable.5
Petitioner then filed this Petition for Review on Certiorari (Under
Rule 45)6 arguing that the trial court has decided a question of
substance not theretofore determined by the Court, that is:
whether or not dropping the middle name of a minor child is
contrary to Article 1747 of the Family Code. Petitioner contends that
"[W]ith globalization and mixed marriages, there is a need for the
Supreme Court to rule on the matter of dropping of family name for
a child to adjust to his new environment, for consistency and
harmony among siblings, taking into consideration the "best interest
of the child."8 It is argued that convenience of the child is a valid
reason for changing the name as long as it will not prejudice the
State and others. Petitioner points out that the middle name
"Carulasan" will cause him undue embarrassment and the difficulty
in writing or pronouncing it will be an obstacle to his social
acceptance and integration in the Singaporean community.
Petitioner also alleges that it is error for the trial court to have
denied the petition for change of name until he had reached the age
of majority for him to decide the name to use, contrary to previous
cases9 decided by this Court that allowed a minor to petition for
change of name.10
The Court required the Office of the Solicitor General (OSG) to
comment on the petition. The OSG filed its Comment11 positing that
the trial court correctly denied the petition for change of name. The
OSG argues that under Article 174 of the Family Code, legitimate
children have the right to bear the surnames of their father and
mother, and such right cannot be denied by the mere expedient of
dropping the same. According to the OSG, there is also no showing
that the dropping of the middle name "Carulasan" is in the best
interest of petitioner, since mere convenience is not sufficient to
support a petition for change of name and/or cancellation of
entry.12 The OSG also adds that the petitioner has not shown any
compelling reason to justify the change of name or the dropping of
the middle name, for that matter. Petitioner’s allegation that the
continued use of the middle name may result in confusion and
difficulty is allegedly more imaginary than real. The OSG reiterates
its argument raised before the trial court that the dropping of the
child’s middle name could only trigger much deeper inquiries
regarding the true parentage of petitioner. Hence, while petitioner
Julian has a sister named Jasmine Wei Wang, there is no confusion
since both use the surname of their father, Wang. Even assuming
that it is customary in Singapore to drop the middle name, it has
also not been shown that the use of such middle name is actually
proscribed by Singaporean law.13
We affirm the decision of the trial court. The petition should be
denied.
The Court has had occasion to express the view that the State has
an interest in the names borne by individuals and entities for
purposes of identification, and that a change of name is a privilege
and not a right, so that before a person can be authorized to change
his name given him either in his certificate of birth or civil registry,
he must show proper or reasonable cause, or any compelling reason
which may justify such change. Otherwise, the request should be
denied.14
The touchstone for the grant of a change of name is that there be
‘proper and reasonable cause’ for which the change is sought. 15 To
justify a request for change of name, petitioner must show not only
some proper or compelling reason therefore but also that he will be
prejudiced by the use of his true and official name. Among the
grounds for change of name which have been held valid are: (a)
when the name is ridiculous, dishonorable or extremely difficult to
write or pronounce; (b) when the change results as a legal
consequence, as in legitimation; (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) a sincere desire to adopt a Filipino name to erase
signs of former alienage, all in good faith and without prejudicing
anybody; and (f) when the surname causes embarrassment and
there is no showing that the desired change of name was for a
fraudulent purpose or that the change of name would prejudice
public interest.16
In granting or denying petitions for change of name, the question of
proper and reasonable cause is left to the sound discretion of the
court. The evidence presented need only be satisfactory to the court
and not all the best evidence available. 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 in support thereof, mindful of the
consequent results in the event of its grant and with the sole
prerogative for making such determination being lodged in the
courts.17
The petition before us is unlike other petitions for change of name,
as it does not simply seek to change the name of the minor
petitioner and adopt another, but instead seeks to drop the middle
name altogether. Decided cases in this jurisdiction involving
petitions for change of name usually deal with requests for change
of surname. There are only a handful of cases involving requests for
change of the given name18 and none on requests for changing or
dropping of the middle name. Does the law allow one to drop the
middle name from his registered name? We have to answer in the
negative.
A discussion on the legal significance of a person’s name is relevant
at this point. We quote, thus:
…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. Names are used merely as one method of
indicating the identity of persons; they are descriptive of persons for
identification, since, the identity is the essential thing and it has
frequently been held that, when identity is certain, a variance in, or
misspelling of, the name is immaterial.
The names of individuals usually have two parts: the given name or
proper name, and the surname or family name. The given or proper
name is that which is given to the individual at birth or baptism, to
distinguish him from other individuals. The name 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.
A name is said to have the following characteristics: (1) It is
absolute, intended to protect the individual from being confused
with others. (2) It is obligatory in certain respects, for nobody can be
without a name. (3) It is fixed, unchangeable, or immutable, at least
at the start, and may be changed only for good cause and by judicial
proceedings. (4) It is outside the commerce of man, and, therefore,
inalienable and intransmissible by act inter vivos or mortis causa. (5)
It is imprescriptible.19
This citation does not make any reference to middle names, but this
does not mean that middle names have no practical or legal
significance. Middle names serve to identify the maternal lineage or
filiation of a person as well as further distinguish him from others
who may have the same given name and surname as he has.
Our laws on the use of surnames state that legitimate and
legitimated children shall principally use the surname of the
father.20 The Family Code gives legitimate children the right to bear
the surnames of the father and the mother,21 while illegitimate
children shall use the surname of their mother, unless their father
recognizes their filiation, in which case they may bear the father’s
surname.22
Applying these laws, an illegitimate child whose filiation is not
recognized by the father bears only a given name and his mother’s
surname, and does not have a middle name. The name of the
unrecognized illegitimate child therefore identifies him as such. It is
only when the illegitimate child is legitimated by the subsequent
marriage of his parents or acknowledged by the father in a public
document or private handwritten instrument that he bears both his
mother’s surname as his middle name and his father’s surname as
his surname, reflecting his status as a legitimated child or an
acknowledged illegitimate child.
Accordingly, the registration in the civil registry of the birth of such
individuals requires that the middle name be indicated in the
certificate. The registered name of a legitimate, legitimated and
recognized illegitimate child thus contains a given or proper name, a
middle name, and a surname.
Petitioner theorizes that it would be for his best interest to drop his
middle name as this would help him to adjust more easily to and
integrate himself into Singaporean society. In support, he
cites Oshita v. Republic23 and Calderon v. Republic,24 which,
however, are not apropos both.
In Oshita, the petitioner therein, a legitimate daughter of a Filipino
mother, Buena Bartolome, and a Japanese father, Kishimatsu
Oshita, sought to change her name from Antonina B. Oshita to
Antonina Bartolome. The Court granted her petition based on the
following considerations: she had elected Philippine citizenship
upon reaching the age of majority; her other siblings who had also
elected Philippine citizenship have been using their mother’s
surname; she was embarrassed to bear a Japanese surname there
still being ill feeling against the Japanese due to the last World War;
and there was no showing that the change of name was motivated
by a fraudulent purpose or that it will prejudice public interest.
In Calderon, the Court allowed petitioner Gertrudes Josefina del
Prado, an illegitimate minor child acting through her mother who
filed the petition in her behalf, to change her name to Gertudes
Josefina Calderon, taking the surname of her stepfather, Romeo C.
Calderon, her mother’s husband. The Court held that a petition for
change of name of an infant should be granted where to do is
clearly for the best interest of the child. The Court took into
consideration the opportunity provided for the minor petitioner to
eliminate the stigma of illegitimacy which she would carry if she
continued to use the surname of her illegitimate father. The Court
pronounced that justice dictates that every person be allowed to
avail of any opportunity to improve his social standing as long as
doing so he does not cause prejudice or injury to the interests of the
State or of other people.
Petitioner cites Alfon v. Republic,25 in arguing that although Article
174 of the Family Code gives the legitimate child the right to use the
surnames of the father and the mother, it is not mandatory such
that the child could use only one family name, even the family name
of the mother. In Alfon, the petitioner therein, the legitimate
daughter of Filomeno Duterte and Estrella Alfon, sought to change
her name from Maria Estrella Veronica Primitiva Duterte (her name
as registered in the Local Civil Registry) to Estrella S. Alfon (the name
she had been using since childhood, in her school records and in her
voter’s registration). The trial court denied her petition but this
Court overturned the denial, ruling that while Article 364 of the Civil
Code states that she, as a legitimate child, should principally use the
surname of her father, there is no legal obstacle for her to choose to
use the surname of herm other to which she is entitled. In addition,
the Court found that there was ample justification to grant her
petition, i.e., to avoid confusion.
Weighing petitioner’s reason of convenience for the change of his
name against the standards set in the cases he cites to support his
contention would show that his justification is amorphous, to say
the least, and could not warrant favorable action on his petition.
The factual antecedents and unique circumstances of the cited cases WHEREFORE, in view of the foregoing, the Petition for Review on
are not at all analogous to the case at bar. The instant case is clearly Certiorari is DENIED.
distinguishable from the cases of Oshita and Alfon, where the
petitioners were already of age when they filed their petitions for SO ORDERED.
change of name. Being of age, they are considered to have exercised
their discretion and judgment, fully knowing the effects of their
decision to change their surnames. It can also be unmistakably
observed that the reason for the grant of the petitions for change of
name in these two cases was the presence of reasonable or
compelling grounds therefore. The Court, in Oshita, recognized the
tangible animosity most Filipinos had during that time against the
Japanese as a result of World War II, in addition to the fact of
therein petitioner’s election of Philippine citizenship. In Alfon, the
Court granted the petition since the petitioner had been known
since childhood by a name different from her registered name and
she had not used her registered name in her school records and
voter’s registration records; thus, denying the petition would only
result to confusion.
Calderon, on the other hand, granted the petition for change of
name filed by a mother in behalf of her illegitimate minor child.
Petitioner cites this case to buttress his argument that he does not
have to reach the age of majority to petition for change of name.
However, it is manifest in Calderon that the Court, in granting the
petition for change of name, gave paramount consideration to the
best interests of the minor petitioner therein.
In the case at bar, the only reason advanced by petitioner for the
dropping his middle name is convenience. However, how such
change of name would make his integration into Singaporean
society easier and convenient is not clearly established. That the
continued use of his middle name would cause confusion and
difficulty does not constitute proper and reasonable cause to drop it
from his registered complete name.
In addition, petitioner is only a minor. Considering the nebulous
foundation on which his petition for change of name is based, it is
best that the matter of change of his name be left to his judgment
and discretion when he reaches the age of majority.26 As he is of
tender age, he may not yet understand and appreciate the value of
the change of his name and granting of the same at this point may
just prejudice him in his rights under our laws.
SECOND DIVISION
G.R. No. 97906 May 21, 1992
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS and MAXIMO WONG, respondents.
Public Attorney's Office for private respondent.
REGALADO, J.:
Petitioner seeks to set aside the judgment of respondent Court of
Appeals 1 in affirmance of the decision of the court a quo 2 granting
the petition filed by herein private respondent Maximo Wong for
the change of his name to Maximo Alcala, Jr. which was his name
prior to his adoption by Hoong Wong and Concepcion Ty Wong.
The facts are undisputed. Private respondent Maximo Wong is the
legitimate son of Maximo Alcala, Sr. and Segundina Y. Alcala. When
he was but two and a half years old and then known as Maximo
Alcala, Jr., and his sister Margaret Alcala, was then nine years old,
they were, with the consent of their natural parents 3 and by order
of the court in Special Case No. 593 4 issued on September 9, 1967,
adopted by spouses Hoong Wong and Concepcion Ty Wong, both
naturalized Filipinos. Hoong Wong, now deceased, was an insurance
agent while Concepcion Ty Wong was a high school teacher. They
decided to adopt the children as they remained childless after
fifteen years of marriage. The couples showered their adopted
children with parental love and reared them as their own children.
Upon reaching the age of twenty-two, herein private respondent, by
then married and a junior Engineering student at Notre Dame
University, Cotabato City, filed a petition to change his name to
Maximo Alcala, Jr. It was averred that his use of the surname Wong
embarrassed and isolated him from his relatives and friends, as the
same suggests a Chinese ancestry when in truth and in fact he is a
Muslim Filipino residing in a Muslim community, and he wants to
erase any implication whatsoever of alien nationality; that he is
being ridiculed for carrying a Chinese surname, thus hampering his
business and social life; and that his adoptive mother does not
oppose his desire to revert to his former surname.
As earlier stated, on July 2, 1986, the matter was resolved in favor of
private respondent, the trial court decreeing that, the jurisdictional
requirements having been fully complied with, petitioner's prayer to
change his name from Maximo Wong to Maximo Alcala, Jr. was
granted. 5 On appeal to respondent court, and over the opposition
of petitioner Republic through the Solicitor General, the decision of
the court below was affirmed in full, hence, this petition for review
on certiorari.
The lone issue to be settled is whether or not the reasons given by
private respondent in his petition for change of name are valid,
sufficient and proper to warrant the granting of said petition.
The Solicitor General contends that private respondent's allegations
of ridicule and/or isolation from family and friends were
unsubstantiated and cannot justify the petition for change of name.
He claims that for private respondent to cast aside the name of his
adoptive father is crass ingratitude to the memory of the latter and
to his adoptive mother who is still alive, despite her consent to the
petition for change of name. Further, the Solicitor General posits
that the reversion of Maximo Wong to his old name violates Articles
341 and 365 of the Civil Code, which requires an adopted child to
use the surname of the adopter, and would identify him with his
parents by nature, thus giving the impression that he has severed
his relationship with his adoptive parents. 6
In refutation, private respondent argues that he did as the law
required, that is, upon adoption he used the surname of the
adopter. However, being already emancipated, he can now decide
what is best for and by himself. It is at this time that he realized that
the Chinese name he carries causes him undue ridicule and
embarrassment and affects his business and social life. In fact, his
adoptive mother, being aware of his predicament, gave her consent
to the petition for change of name, albeit making it clear that the
same shall in no way affect the legal adoption, and even underwent
the rigors of trial to substantiate her sworn statement. If his
adoptive mother does not take offense nor feel any resentment,
abhorrence or insecurity about his desire to change his name,
private respondent avers that there can be no possible prejudice on
her, much less the State. 7
We feel that we should preface our review of this case with a clear
comprehension of the legal significance of a person's name. 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 be 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, of in speaking of or dealing with
him. 8 Names are used merely as one method of indicating the
identity of persons; they are descriptive of persons for
identification, since, the identity is the essential thing and it has
frequently been held that, when identity is certain, a variance in, or
misspelling of, the name is immaterial. 9
The names of individuals usually have two parts: the given name or
proper name, and the surname or family name. The given or proper
name is that which is given to the individual at birth or baptism, to
distinguish him from other individuals. The name 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. 10
A name is said to have the following characteristics: (1) It is
absolute, intended to protect the individual from being confused
with others. (2) It is obligatory in certain respects, for nobody can be
without a name. (3) It is fixed, unchangeable, or immutable, at least
at the start, and may be changed only for good cause and by judicial
proceedings. (4) It is outside the commerce of man, and, therefore,
inalienable and intransmissible by act inter vivos or mortis causa. (5)
It is imprescriptible. 11
Title XIII, Book I of the Civil Code, in Articles 364 to 380, provides the
substantive rules which regulate the use of surnames. Considering
the subject and personalities involved in this present review,
particular attention must be called to Article 365 which mandates
that "(a)n adopted child shall bear the surname of the adopter," in
correlation with Article 341 on the effects of adoption, among which
is to"(e)ntitle the adopted person to use the adopter's surname."
This same entitlement of an adopted child is maintained in Article
39(3), Title II of Presidential Decree No. 603, otherwise known as change of name is not a matter of right but of sound judicial and also cause(d) damage to
the Child and Youth Welfare Code. More recently, Executive Order discretion, to be exercised in the light of reasons adduced and the your business?
No. 209, as amended by Executive Order No. 227, or the Family consequences that will likely follow; 19 it is a privilege which may be
Code, echoes the same statutory right of an adopted child to use the granted only upon a showing of a proper or reasonable cause or A Yes sir.
surname of the adopter. 12 Clearly, from the very wordings of the compelling reason therefor. 20
law, it may be inferred that this use of the surname of the adopter xxx xxx xxx
by the adopted child is both an obligation and a right. We find unacceptable the assertion of the Solicitor General that
private respondent's allegation of ridicule and embarrassment due ATTY. DUMAMBA:
Under Article 376 by the Civil Code, "(n)o person can change his to the use of his present surname is unsubstantiated.
name or surname without judicial authority." The application for
Q Now, considering that
change of name thereunder involves a special proceeding governed The testimony of private respondent in the lower court bears out according to you, you are
by and conducted under the strictures of Rule 103 of the Rules of the existence of valid cause in his bid for change of name: embarrassed because of the
Court and one which involves substantial changes, with the declared
family name you are using, your
objective of such judicial proceedings being the prevention of fraud. ATTY. DUMAMBA: friends shy away from you and it
The purpose of the statutory procedure authorizing a change of
is a handicap in your business,
personal name is simply to have, wherever possible, a record of the
Q Now, after adoption, when what is your desire for the Court
change, and in keeping with the object of the statute, court to which
you went to school, what did to do in order to help you?
application is made should normally make its decree recording such
you use as your surname?
change of name. 13
A Change my family name.
A "Wong," sir.
A change of name is a special proceeding to establish the status of a
Q From "Wong" to what do you
person involving his relation with others, that is, his legal position in,
Q Now, after you adopted the want your surname changed?
or with regard to, the rest of the community. It is a proceeding in
surname "Wong?" in your
rem 14 and, as such, strict compliance with all jurisdictional
studies, what did you observe? A "Alcala, Jr.", sir.
requirements, particularly on publication, is essential in order to
vest the court with jurisdiction thereover. 15 For this purpose, the
only name that may be changed is the true or official name A I observed that "Wong" as a xxx xxx xxx
recorded in the civil register. 16 surname embarrassed me to my
friends and when I go with COURT:
Chinese friends I cannot talk
To digress a little for purposes of clarification, the change of name
Chinese. I am living in Campo
contemplated under Article 376 and reglementarily implemented by Q What is your purpose in
Muslim, a Muslim community
Rule 103 must not be confused with and cannot be effected through changing your family name from
but no one can believe that I am
the summary proceeding proposed in Article 412 of the some Code, Maximo Wong to Maximo Alcala,
Muslim. I have a little business of
as procedurally regulated by Rule 108 of the Rules, which refers only Jr.?
to correction of clerical errors, such as those which are visible to the Furniture but I have little (sic)
customer because no one
eye or obvious to the understanding, or an error made by a clerk or A I feel embarrassed to my
believes me that I am Muslim.
transcriber, or a mistake in copying or writing, or some harmless or friends and also to my relatives
innocuous change, 17 and not those which will involve substantial and as I said I have a little
changes. 18 Q You want to inform this
business of furniture and only a
Honorable Court that this family
few customers buying for the
name you are using which is
Turning now to the case at bar, we are guided by the jurisprudential fact that they don't believe I am
"Wong" embarrassed you from
dictum that the State has an interest in the names borne by Muslim.
(sic) your friends and relatives
individuals and entities for the purpose of identification, and a
 Cross.
ATTY. SERO:
With the permission of the
Honorable Court.
Q Your father's name is Maximo
Alcala, Sr., is he still alive?
A Yes, sir.
Q And what does your father say
to this proposed changed (sic) of
We uphold these observations in the decision of respondent
your name, your family name to
appellate court:
your real family name given to
you?
A Yes, sir.
Q They have no objection to it?
A No, sir.
Q Stated before this Honorable
Court, the purpose why you
wanted to change your name
from "Wong" to "Alcala" is so
that to avoid embarrassment
because you are a Muslim and
your Muslim relatives think that
you are Chinese.
A Yes, sir.
Q Not for the purpose to hide
anything or what not?
A No, sir. 21
The foregoing testimony of private respondent is materially
corroborated by the testimony of private respondent's adoptive
mother:
Q Now, what did you observe to
(sic) your son Maximo Wong
after you and your husband
adopted him?
A When I adopted him and he
used the surname "Wong" I
observed that some of his
relatives, cousins and friends
seem to shy away from him and
despise him in school that is why
I agreed to change his name. 22
The purpose of the law an allowing of change of
name as contemplated by the provisions of Rule
103 of the Rules of Court is to give a person an
opportunity to improve his personality and to
provide his best interest. (Calderon vs. Republic,
19 SCRA 721). In granting or denying the petition
for change of name, the question of proper and
reasonable cause is left to the discretion of the
court. The evidence presented need only be
satisfactory to the court and not all the best
evidence available is required. (Uy vs. Republic, L-
22712, Nov. 25, 1965; Nacionales vs. Republic,
L-18067, April 29, 1966; both cases cited in 1 SCRA
843). In the present case, We believe that the
court a quo had exercised its discretion judiciously
when it granted the petition.
From the testimony of petitioner-appellee and of
his adopter mother Concepcion Ty-Wong, We
discern that said appellee was prompted to file the
petition for change of name because of the
embarrassment and ridicule his family name
"Wong" brings in his dealings with his relatives
and friends, he being a Muslim Filipino and living
in a Muslim community. Another cause is his
desire to improve his social and business life. It has
been held that in the absence of prejudice to the
state or any individual, a sincere desire to adopt a
Filipino name to erase signs of a former alien
nationality which only hamper(s) social and
business life, is a proper and reasonable cause for
change of name (Uy vs. Republic, L-22712, Nov.
25, 1965, Que Liong Sian vs. Republic, L-23167,
Aug. 17, 1967, 20 SCRA 1074). Justice dictates that
a person should be allowed to improve his social
standing as long as in doing so, he does not cause
prejudice or injury to the interest of the State or
other persons (Calderon vs. Republic, supra).
Nothing whatsoever is shown in the record of this
case that such prejudice or injury to the interest of
the state or of other persons would result in the
change of petitioner's name. 23
It bears stressing at this point that to justify a request for change of
name, petitioner must show not only some proper or compelling
reason therefor but also that he will be prejudiced by the use of his
true and official name. 24Among the grounds for change of name
which have been held valid are: (a) When the name is ridiculous,
dishonorable or extremely difficult to write or pronounce; (b) When
the change results as a legal consequence, as in legitimation; (c)
When the change will avoid confusion; 25 (d) Having continuously
used and been known since childhood by a Filipino name, unaware
of her alien parentage; 26 (e) A sincere desire to adopt a Filipino
name to erase signs of former alienage, all in good faith and without
prejudicing anybody; 27 and (f) When the surname causes
embarrassment and there is no showing that the desired change of
name was for a fraudulent purpose or that the change of name
would prejudice public interest. 28
In granting or denying petitions for change of name, the question of
proper and reasonable cause is left to the sound discretion of the
court. The evidence presented need only be satisfactory to the court
and not all the best evidence available. 29 Summarizing, in special
proceedings for 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 in support thereof, mindful of the consequent results in
the event of its grant and with the sole prerogative for making such
determination being lodged in the courts.
While it is true that the statutory fiat under Article 365 of the Civil
Code is to the effect that an adopted child shall bear the surname of
the adopter, it must nevertheless be borne in mind that the change
of the surname of the adopted child is more an incident rather than
the object of adoption proceedings. 30 The act of adoption fixes a
status, viz., that of parent and child. More technically, it is an act by
which relations of paternity and affiliation are recognized as legally
existing between persons not so related by nature. It has been
defined as the taking into one's family of the child of another as son
or daughter and heir and conferring on it a title to the rights and
privileges of such. The purpose of an adoption proceeding is to
effect this new status of relationship between the child and its
adoptive parents, the change of name which frequently
accompanies adoption being more an incident than the object of
the proceeding. 31 The welfare of the child is the primary
consideration in the determination of an application for adoption.
On this point, there is unanimous agreement. 32
It is the usual effect of a decree of adoption to transfer from the
natural parents to the adoptive parents the custody of the child's
person, the duty of obedience owing by the child, and all other legal
consequences and incidents of the natural relation, in the same
manner as if the child had been born of such adoptive parents in
lawful wedlock, subject, however, to such limitations and
restrictions as may be by statute imposed. 33 More specifically under
the present state of our law, the Family Code, superseding the
pertinent provisions of the Civil Code and of the Child and Youth
Welfare Code on the matter, 34 relevantly provides in this wise with
regard to the issue involved in this case:
Art. 189. Adoption shall have the following effects:
(1) For civil purposes, the adopted shall be
deemed to be the 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; (Emphasis supplied.)
xxx xxx xxx
The Solicitor General maintains the position that to sustain the
change of name would run counter to the behest of Article 365 of
the Civil Code and the ruling in Manuel vs. Republic 35 that "one
should not be allowed to use a surname which otherwise he is not
permitted to employ under the law," and would set a bad example
to other persons who might also seek a change of their surnames on
lame excuses. 36
While we appreciate the Solicitor General's apprehensions and
concern, we find the same to be unfounded. We do not believe that
by reverting to his old name, private respondent would then be
using a name which he is prohibited by law from using. True, the law
prescribes the surname that a person may employ; but the law does
not go so far as to unqualifiedly prohibit the use of any other
surname, and only subjects such recourse to the obtention of the
requisite judicial sanction. What the law does not prohibit, it
permits.
If we were to follow the argument of the Solicitor General to its
conclusion, then there will never be any possibility or occasion for
any person, regardless of status, to change his name, in view of the
supposed subsequent violation of the legal imperative on the use of
surnames in the event that the petition is granted. Rule 103 of the
Rules of Court would then be rendered inutile. This could hardly
have been the intendment of the law.
A petition for change of name is a remedy allowed under our law
only by way of exception to the mandatory provisions of the Civil
Code on the use of surnames. The law fixes the surname that may
be used by a person, at least inceptively, and it may be changed only
upon judicial permission granted in the exercise of sound discretion.
Section 1 of Rule 103, in specifying the parties who may avail of said
remedy, uses the generic term "persons" to signify all natural
persons regardless of status. If a legitimate person may, under
certain judicially accepted exceptional circumstances, petition the
court for a change of name, we do not see any legal basis or logic in
discriminating against the availment of such a remedy by an
adopted child. In other words, Article 365 is not an exception, much
less can it bar resort, to Rule 103.
We are of the view that the circumstances herein obtaining are
within the ambit of the established exceptions and find merit in
private respondent's submission:
Rule 103 of the Rules of Court has its primordial
purpose which (State) is to give a person in
opportunity to improve his personality and
provide his best interest (Calderon vs. Republic, 19
SCRA 721). In the instant case, the court a
quo found the petition of Maximo Wong for
change of name justifiable after due hearing, thus
its factual findings and appreciation of testimonies
count heavily and need not be disturbed unless for
strong and cogent reasons because the trial court
is in a better position to examine real evidence as
well as to observe the demeanor of the witnesses
while testifying in the case (Baliwag Transit, Inc.
vs. CA, 147 SCRA 82). Moreover, the trial court
could take judicial notice of other existing factors
in the community where herein respondent lives
which it considers material in its judicious
determination of the case. . . .
Additionally, herein respondent is already of age
and as such he can decide what is best for him. His
experience with regards (sic) his social and
business dealings is personal and it is only him (sic)
who can attest to the same. Finding his
predicament's proper remedy is solely through
legal process, herein respondent accordingly filed
a petition pursuant to Rule 103 of the Rules of
Court which was granted by the Court a quo. 37
Besides, we have faith in the circumspection of our lower courts and
that, in the exercise of their discretion, said courts shall consider
petitions for change of name only on cogent and meritorious
grounds as would justify the granting of such applications. We do
not expect our trial courts to cater or give in to the whim or caprice
of an applicant, aside from the fact that there is always the
safeguard and corrective interdiction of appellate review.
It is not fair to construe the desired reversion of private respondent
to the use of the name of his parents by nature as cross ingratitude.
To go by the Solicitor General's suggestion that private respondent
should have his adoption revoked if he wants to use the surname of
his natural father would be to exact too clear a toll for making use of
an appropriate and valid remedy available under the law.
Herein private respondent, before he filed the petition for change of
name, asked for his adoptive mother's permission to do so:
Q Now, in filing this petition for
change of surname, you had
talked with your adopted
mother?
A Yes, sir.
Q Did you ask permission from
her whether she wants you to
change the surname?
A Yes, sir. 38
True enough, the above testimony of private respondent was
confirmed by his adoptive mother in this manner:
Q How are you related to
Maximo Wong?
A My adopted son.
Q He is your adopted son, did
your son talk to you when he
filed this petition for change of
his surname?
A Yes, he even tried to ask me
and I said, alright if you want to
change.
because
he is already Alcila and not
Wong because Wong they said is
Chinese. 39
As proof of her assent to the filing of said petition (her husband
having already passed away), Concepcion Ty Vda. de Wong executed
an affidavit in Cotabato City on May 27, 1985, with these textual
declarations:
That I am the same and identical person, who is
the surviving adapted (sic) parent of Maximo
Wong.
That I personally discovered it myself from the
time my adapted (sic) son Maximo used the
surname of my late husband Wong, his relatives
and childhood friends shy away from him because
he is branded as a son of a chinese which is
different from them whose parents are muslim
Filipinos;
That I pity my son who is often rediculed (sic) by
his friends and relatives because of his family
name Wong, hence, in order not to humper (sic)
his social and business life in the future, I am
voluntarily and of my own free will without being
forced, coerced, or intimidated give (sic) my
consent to his desire to change his desire to
change his surname without affecting however the
legal adoption granted by the Court on September
9, 1967, making him as one of my legal and
compulsory heir (sic).
would have us believe, he would not have bothered to seek his
adoptive mother's counsel. In the same breath, had his adoptive
mother regarded him as an ungrateful adoptee, she would not have
executed the affidavit above quoted, much less testify in his behalf
at the hearing of his petition.
Moreover, worthy of note is the fact that private respondent's
adoptive mother emphasized that she executed the above affidavit
"without affecting the legal adoption granted by the Court on
September 9, 1967, making him as one of my legal and compulsory
heir(s)." This is incontrovertible proof that she never entertained
any misgivings or reservations with respect to her consent to his
petition. This likewise dispels any possible confusion as to private
respondent's legal status or adoptive paternity and his successional
rights. Concordantly, we have heretofore held that a change of
name does not define or effect a change in one's existing family
relations or in the rights and duties flowing therefrom. It does not
alter one's legal capacity, civil status or citizenship; what is altered is
only the name. 41
WHEREFORE, the petition is DENIED and the decision of respondent
Court of Appeals is hereby AFFIRMED in toto.
SO ORDERED.

xxx xxx xxx That I am executing this affidavit to attest to the

Q Now, when you agreed to the
filing of this petition for change
of name, did you reduce your
consent in writing?
A Yes, sir, I agreed also so that
his business will prosper
truth of all the above mentioned facts and for all
legal intent (sic) and purposes. 40
There could be no other plausible reason for private respondent to
first secure has adoptive mother's consent before resorting to the
questioned legal recourse other than the parental respect and
reverence which is owed by and to be expected of a dutiful child. If
private respondent was such an ingrate, as the Solicitor General