G.R. No.
105625 January 24, 1994 The trial court then received evidence on the issue of
MARISSA BENITEZ-BADUA, petitioner,
vs.
COURT OF APPEALS, VICTORIA BENITEZ LIRIO AND
FEODOR BENITEZ AGUILAR, 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
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.
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:
or
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.
1
 Costs against appellee. Children conceived as a result of
artificial insemination of the wife with
SO ORDERED. sperm of the husband or that of a
donor or both are likewise legitimate
children of the husband and his wife,
In juxtaposition, the appellate court held that the trial
provided, that both of them
court erred in applying Articles 166 and 170 of the Family
authorized or ratified such
Code.
insemination in a written instrument
executed and signed by them before
In this petition for review, petitioner contends: the birth of the child. The instrument
shall be recorded in the civil registry
1. The Honorable Court of Appeals together with the birth certificate of
committed error of law and the child.
misapprehension of facts when it
failed to apply the provisions, more Art. 166. Legitimacy of child may be
particularly, Arts. 164, 166, 170 and impugned only on the following
171 of the Family Code in this case grounds:
and in adopting and upholding
private respondent's theory that the
1) That it was physically impossible for
instant case does not involve an
the husband to have sexual
action to impugn the legitimacy of a
intercourse with his wife within the
child;
first 120 days of the 300 days which
immediately preceded the birth of the
2. Assuming arguendo that private child because of:
respondents can question or impugn
directly or indirectly, the legitimacy of
a) the physical
Marissa's birth, still the respondent
incapacity of the
appellate Court committed grave
husband to have
abuse of discretion when it gave more
sexual intercourse
weight to the testimonial evidence of
with his wife;
witnesses of private respondents
whose credibility and demeanor have
not convinced the trial court of the b) the fact that the
truth and sincerity thereof, than the husband and wife
documentary and testimonial were living
evidence of the now petitioner separately in such
Marissa Benitez-Badua; a way that sexual
intercourse was
not possible; or
3. The Honorable Court of Appeals
has decided the case in a way not in
accord with law or with applicable c) serious illness of
decisions of the supreme Court, more the husband,
particularly, on prescription or laches. which absolutely
prevented sexual
intercourse.
We find no merit to the petition.

2) That it is proved that for biological

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.
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

2
 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
3
 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
4
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
5
 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.
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
6
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
7
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
8
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.
9
 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.
xxx xxx xxx
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.
10
 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.
11
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, which absolutely prevents sexual
intercourse.9 Quite remarkably, upon the expiration of
the periods set forth in Article 170,10 and in proper cases
Article 171,11 of the Family Code (which took effect on 03
August 1988), the action to impugn the legitimacy of a
child would no longer be legally feasible and the status
conferred by the presumption becomes fixed and
unassailable,12
Succinctly, in an attempt to establish their illegitimate
filiation to the late Juan G. Dizon, petitioners, in effect,
would impugn their 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
contested in a direct suit specifically brought for that
purpose.16 Indeed, a child so born in such wedlock shall
be considered legitimate although the mother may have
declared against its legitimacy or may have been
sentenced as having been an adulteress.17
WHEREFORE, the foregoing disquisitions considered, the
instant petition is DENIED. No costs.SO ORDERED.
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.
Before us is a petition for review on certiorari assailing
the decision dated June 4, 1999 of the Court of Appeals
12
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
13
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 gray12 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.16 Linda 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
14
obtained any annulment17 of 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,
1975.19 Her 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
15
 (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 waiver of rights to any and all
claims on any property that Corazon Garcia might
acquire in the future.26
The fact that Corazon Garcia had been living separately
from her husband, Ramon Yulo, at the time petitioner
was conceived and born is of no moment. While physical
impossibility for the husband to have sexual intercourse
16
with his wife is one of the grounds for impugning the
legitimacy of the child, it bears emphasis that the
grounds for impugning the legitimacy of the child
mentioned in Article 255 of the Civil Code may only be
invoked by the husband, or in proper cases, his heirs
under the conditions set forth under Article 262 of the
Civil Code.27 Impugning the legitimacy of the child is a
strictly personal right of the husband, or in exceptional
cases, his heirs for the simple reason that he is the one
directly confronted with the scandal and ridicule which
the infidelity of his wife produces and he should be the
one to decide whether to conceal that infidelity or
expose it in view of the moral and economic interest
involved.28 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 o an insult to his memory.29
It is therefor clear that the present petition initiated by
Corazon G. Garcia as guardian ad litem of the then minor,
herein petitioner, to compel recognition by respondents
of petitioner William Liyao, Jr, as the illegitimate son of
the late William Liyao cannot prosper. It is 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
Do the acts of Enrique and Bernadette Yulo, the
undisputed children of Corazon Garcia with Ramon Yulo,
in testifying for herein petitioner amount to impugnation
of the legitimacy of the latter?
We think not. As earlier stated, it is only in exceptional
cases that the heirs of the husband are allowed to
contest the legitimacy of the child. There is nothing on
the records to indicate that Ramon Yulo has already
passed away at the time of the birth of the petitioner nor
at the time of the initiation of this proceedings. Notably,
the case at bar was initiated by petitioner himself
through his mother, Corazon Garcia, and not through
Enrique and Bernadette Yulo. It is settled that 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.1âwphi1
Considering the foregoing, we find no reason to discuss
the sufficiency of the evidence presented by both parties
on the petitioner’s claim of alleged filiation with the late
William Liyao. In any event, there is no clear, competent
and positive evidence presented by the petitioner that his
alleged father had admitted or recognized his paternity.
WHEREFORE, the instant petition is DENIED. The assailed
decision of the Court of Appeals in CA-G.R. CV No. 45394
is hereby AFFIRMED. No costs.
SO ORDERED.
G.R. No. 123450. August 31, 2005
GERARDO B. CONCEPCION, Petitioners,
vs.
COURT OF APPEALS and MA. THERESA
ALMONTE, Respondent.
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
17
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
18
(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.18 Hence, 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
As a guaranty in favor of the child21 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.29 Sexual 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
19
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
20
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.48 On 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.
21
 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.
CHICO-NAZARIO, J.:
This is a petition for Review on Certiorari under Rule 45
of the Revised Rules of Civil Procedure assailing (1) the
Decision1 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
22
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
23
 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
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
24
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 filiation of minor Joanne for purposes of
support in favor of the said minor.
Filiation proceedings are usually filed not just to
adjudicate paternity but also to secure a legal right
associated with paternity, such as citizenship, 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
putative father and child.20
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 protect his status of legitimacy, Article
167 of the Family Code provides:
Article 167. The children 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. We explained the rationale
of this rule in the recent case of Cabatania v. Court of
Appeals22:
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. The
presumption is grounded on the policy to
protect the innocent offspring from the odium
of illegitimacy.
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 Code23 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’s 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.24
The relevant provisions of the Family Code provide 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.
25
 ART. 175. Illegitimate children may establish
their illegitimate filiation in the same way and
on the same evidence as legitimate children.
There had been divergent and incongruent statements
and 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 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; DNA
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.26
26
In the newly promulgated rules on DNA evidence it is
provided:
SEC. 3 Definition of Terms. – For purposes of
this Rule, the following terms shall be defined
as follows:
xxxx
(c) "DNA evidence" constitutes the totality of
the DNA profiles, results and other genetic
information directly generated from DNA
testing of biological samples;
(d) "DNA profile" means genetic information
derived from DNA testing of a biological
sample obtained from a person, which
biological sample is clearly identifiable as
originating from that person;
(e) "DNA testing" means verified and credible
scientific methods which include the extraction
of DNA from biological samples, the generation
of DNA profiles and the comparison of the
information obtained from the DNA testing of
biological samples for the purpose of
determining, with reasonable certainty, whether
or not the DNA obtained from two or more
distinct biological samples originates from the
same person (direct identification) or if the
biological samples originate from related
persons (kinship analysis); and
(f) "Probability of Parentage" means the
numerical estimate for the likelihood of
parentage of a putative parent compared with
the probability of a random match of two
unrelated individuals in a given population.
Amidst the protestation of petitioner against the DNA
analysis, the resolution thereof may provide the definitive
key to the resolution of the issue of support for minor
Joanne. Our articulation in Agustin v. Court of
Appeals27 is particularly relevant, thus:
Our faith in DNA testing, however, was not
quite so steadfast in the previous decade. In Pe
Lim v. Court of Appeals (336 Phil. 741, 270
SCRA 1), 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 [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 2003, 400 SCRA 584], we
acquitted the accused charged with rape for
27
 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. COMELEC [G.R. Nos.
161434, 161634 and 161824, 3 March 2004, 424
SCRA 277], 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 v. Court of
Appeals, this Court has acknowledged
the strong weight of DNA testing...
Moreover, in our en banc decision
in People v. Yatar [G.R. No. 150224, 19
May 2004, 428 SCRA 504], we
affirmed the conviction of the accused
for rape with homicide, the principal
evidence for which included DNA test
results. x x x.
Coming now to the issue of remand of the case to the
trial court, petitioner questions the appropriateness of
the order by the Court of Appeals directing the remand
of the case to the RTC for DNA testing given that
petitioner has already died. Petitioner argues that a
remand of the case to the RTC for DNA analysis is no
longer feasible due to the death of Rogelio. To our mind,
the alleged impossibility of complying with the order of
remand for purposes of DNA testing is more ostensible
than real. Petitioner’s argument is without basis especially
as the New Rules on DNA Evidence28 allows 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:
SEC. 4. Application for DNA Testing Order. –
The appropriate court may, at any time,
either motu proprio or on application of any
person who has a legal interest in the matter in
litigation, order a DNA testing. Such order shall
issue after due hearing and notice to the parties
upon a showing of the following:
(a) A biological sample exists that is relevant to
the case;
(b) The biological sample: (i) was not previously
subjected to the type of DNA testing now
requested; or (ii) was previously subjected to
DNA testing, but the results may require
confirmation for good reasons;
(c) The DNA testing uses a scientifically valid
technique;
(d) The DNA testing has the scientific potential
to produce new information that is relevant to
the proper resolution of the case; and
(e) The existence of other factors, if any, which
the court may consider as potentially affecting
the accuracy or integrity of the DNA testing.
From the foregoing, it can be said that the death of the
petitioner does not ipso facto negate the application of
DNA testing for as long as there exist appropriate
biological samples of his DNA.
As defined above, the term "biological sample" means
any organic material originating from a person’s body,
even if found in inanimate objects, that is susceptible to
DNA testing. This includes blood, saliva, and other body
fluids, tissues, hairs and bones.29
Thus, even if Rogelio already died, any of the biological
samples as enumerated above as may be available, may
be used for DNA testing. In this case, petitioner has not
shown the impossibility of obtaining an appropriate
biological sample that can be utilized for the conduct of
DNA testing.
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. No. 161434, 3 March 2004, 424
SCRA 277] likewise reiterated the acceptance of
DNA testing in our jurisdiction in this wise: "[i]n
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."
28
 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 Resolution dated 1 March 2006
are AFFIRMED. Costs against petitioner.
SO ORDERED.
G.R. No. 108366 February 16, 1994
JOHN PAUL E. FERNANDEZ, ET AL., petitioners,
vs.
THE COURT OF APPEALS and CARLITO S.
FERNANDEZ, respondents.
PUNO, J.:
The legal dispute between the parties began when the
petitioners filed Civil Case No. Q-45567 for support
against the private respondent before the RTC of Quezon
City. The complaint was dismissed on December 9, 1986
by Judge Antonio P. Solano,1 who found that "(t)here is
nothing in the material allegations in the complaint that
seeks to compel (private respondent) to recognize or
acknowledge (petitioners) as his illegitimate children,"
and that there was no sufficient and competent evidence
to prove the petitioners filiation.2
Petitioners plodded on. On February 19, 1987, they file
the case at bench, another action for recognition and
support against the private respondent before another
branch of the RTC of Quezon City, Branch 87. The case
was docketed as Civil Case No. Q-50111.
The evidence shows that VIOLETA P. ESGUERRA, single, is
the mother and guardian ad litem of the two petitioners,
CLARO ANTONIO FERNANDEZ and JOHN PAUL
FERNANDEZ, met sometime in 1983, at the Meralco
Compound tennis courts. A Meralco employee and a
tennis enthusiast, Carlito used to spend his week-ends
regularly at said courts, where Violeta's father served as
tennis instructor.
Violeta pointed to Carlito as the father of her two sons.
She claimed that they started their illicit sexual
relationship six (6) months after their first meeting. The
tryst resulted in the birth of petitioner Claro Antonio on
March 1, 1984, and of petitioner John Paul on not know
that Carlito was married until the birth of her two
children. She averred they were married in civil rites in
October, 1983. In March, 1985, however, she discovered
that the marriage license which they used was spurious.
To bolster their case, petitioners presented the following
documentary evidence: their certificates of live birth,
identifying respondent Carlito as their father; the
baptismal certificate of petitioner Claro which also states
that his father is respondent Carlito; photographs of
Carlito taken during the baptism of petitioner Claro; and
pictures of respondent Carlito and Claro taken at the
home of Violeta Esguerra.
Petitioners likewise presented as witnesses, Rosario
Cantoria,3 Dr. Milagros Villanueva,4 Ruby Chua Cu,5 and
Fr. Liberato Fernandez.6 The first three witnesses told the
trial court that Violeta Esguerra had, at different
times,7 introduced the private respondent to them as her
"husband". Fr. Fernandez, on the other hand, testified
that Carlito was the one who presented himself as the
father of petitioner Claro during the latter's baptism.
In defense, respondent Carlito denied Violeta's
allegations that he sired the two petitioners. He averred
he only served as one of the sponsors in the baptism of
petitioner Claro. This claim was corroborated by the
29
testimony of Rodante Pagtakhan, an officemate of
respondent Carlito who also stood as a sponsor of
petitioner Claro during his baptism. The Private
respondent also presented as witness, Fidel Arcagua, a
waiter of the Lighthouse Restaurant. He disputed
Violeta's allegation that she and respondent Carlito
frequented the said restaurant during their affair.
Arcagua stated he never saw Violeta Esguerra and
respondent Carlito together at the said restaurant. Private
respondent also declared he only learned he was named
in the birth certificates of both petitioners as their father
after he was sued for support in Civil Case No.
Q-45567.
Based on the evidence adduced by the parties, the trial
court ruled in favor of petitioners, viz.:
In view of the above, the Court
concludes and so holds that the
plaintiffs minors (petitioners herein)
are entitled to the relief's prayed for
in the complaint. The defendant
(herein private respondent) is hereby
ordered to recognize Claro Antonio
Carlito Fernandez, now aged 6, and
John Paul Fernandez, now aged 41/2
as his sons. As the defendant has
admitted that he has a supervisory job
at the Meralco, he shall give the
plaintiffs support in the amount of
P2,000 each a month, payment to be
delivered to Violeta Esguerra, the
children's mother and natural
guardian, with arrears reckoned as of
the filing of the complaint on
February 19, 1987.
SO ORDERED.
On appeal, the decision was set aside and petitioners
complaint dismissed by the respondent Court of
Appeals8 in its impugned decision, dated October 20,
1992. It found that the "proof relied upon by the (trial)
court (is) inadequate to prove the (private respondent's)
paternity and filiation of (petitioners)." It further held that
the doctrine of res judicata applied because of the
dismissal of the petitioners complaint in Civil Case No. Q-
45567. Petitioners' motion for reconsideration was
denied on December 22, 1992.
Petitioners now contend that the respondent appellate
court erred in: (1) not giving full faith and credit to the
testimony in of Violeta Esguerra; (2) not giving weight
and value to the testimony of Father Liberato Fernandez;
(3) not giving probative value to the numerous pictures
of respondent Carlito Fernandez taken during the
baptismal ceremony and inside the bedroom of Violeta
Esguerra; (4) not giving probative value to the birth
certificates of petitioners; (5) giving so much credence to
the self-serving and incredible testimony of respondent
Carlito Fernandez; and (6) holding that the principle
of res judicata is applicable in the case at bar.
We find no merit in the petition.
The rule is well-settled that findings of facts of the Court
of Appeals may be reviewed by this court only under
exceptional circumstances. One such situation is when
the findings of the appellate court clash with those of the
trial court as in the case at bench. It behooves us
therefore to exercise our extraordinary power, and settle
the issue of whether the ruling of the appellate court that
private respondent is not the father of the petitioners is
substantiated by the evidence on record.
We shall first examine the documentary evidence offered
by the petitioners which the respondent court rejected as
insufficient to prove their filiation. Firstly, we hold that
petitioners cannot rely on the photographs showing the
presence of the private respondent in the baptism of
petitioner Claro (Exh. "B-8", Exh. "B-12", Exh. "H" and Exh.
"I"). These photographs are far from proofs that private
respondent is the father of petitioner Claro. As explained
by the private respondent, he was in the baptism as one
of the sponsors of petitioner Claro. His testimony was
corroborated by Rodante Pagtakhan.
Secondly, the pictures taken in the house of Violeta
showing private respondent showering affection to Claro
fall short of the evidence required to prove paternity
(Exhibits "B", "B-1", "B-2", "B-7", "B-14" and "B-15"). As
we held in Tan vs. Trocio, 192 SCRA 764, viz:
. . . The testimonies of complainant
and witness Marilou Pangandaman,
another maid, to show unusual
closeness between Respondent and
Jewel, like playing with him and giving
him paternity. The same must be said
of . . . (the) pictures of Jewels and
Respondent showing allegedly their
physical likeness to each other. Said
evidence is inconclusive to prove
paternity and much less would prove
violation of complaint's person and
honor. (Emphasis supplied)
Thirdly, the baptismal certificates (Exh. "D") of petitioner
Claro naming private respondent as his father has scant
evidentiary value. There is no showing that private
30
respondent participated in its preparation. On this score,
we held in Berciles vs. Systems, et al. 128 SCRA 53 (1984):
As to the baptismal certificates, Exh.
"7-A", the rule is that although the
baptismal record of a natural child
describes her as a child of the record
the decedent had no intervening, the
baptismal record cannot be held to be
a voluntary recognition of parentage. .
. . The reason for this rule that
canonical records do not constitute
the authentic document prescribed by
Arts. 115 and 117 to prove the
legitimate filiation of a child is that
such canonical record is simply proof
of the only act to which the priest may
certify by reason of his personal
knowledge, an act done by himself or
in his presence, like the administration
of the sacrament upon a day stated; it
is no proof of the declarations in the
record with respect to the parentage
of the child baptized, or of prior and
distinct facts which require separate
and concrete evidence.
In Macandang vs. Court of Appeals, 100 SCRA 73 (1980),
we also 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.
Fourth, the certificates of live birth (Exh. "A"; Exh. "B") of
the petitioners identifying private respondent as their
father are not also competent evidence on the issue of
their paternity. Again, the records do no show that
private respondent had a hand in the preparation of said
certificates. In rejecting these certificates, the ruling of
the respondent court is in accord with our
pronouncement in Roces vs. Local Civil Registrar, 102
Phil. 1050 (1958), viz:
. . . Section 5 of Act No. 3793 and
Article 280 of the Civil Code of the
Philippines explicity prohibited, not
only the naming of the father or the
child born outside wedlock, when the
birth certificates, or the recognition, is
not filed or made by him, but, also,
the statement of any information or
circumstances by which he could be
identified. Accordingly, the Local Civil
Registrar had no authority to make or
record the paternity of an illegitimate
child upon the information of a third
person and the certificate of birth of
an illegitimate child, when signed only
by the mother of the latter, is
incompetent evidence of fathership of
said child. (Emphasis supplied)
We reiterated this rule in Berciles, op. cit., when we held
that "a birth certificate no signed by the alleged father
therein indicated is not competent evidence of paternity."
We have also reviewed the relevant testimonies of the
witnesses for the petitioners and we are satisfied that the
respondent appellate court properly calibrated their
weight. Petitioners capitalize on the testimony of Father
Liberato Fernandez who solemnized the baptismal
ceremony of petitioner Claro. He declared on the witness
stand:
Q Do you recall Father, whether on that occasion when
you called for the father and the mother of the child, that
both father and mother were present?
A Yes.
Q Would you able to recognized the father and the
mother who were present at that time?
A Yes.
Q Please point to the court?
A There (witness pointing to the defendant, Carlito
Fernandez).
Q For instance, just give us more specifically what
question do you remember having asked him?
A Yes, like for example, do you renounce Satan and his
works?
Q What was the answer of Fernandez?
A Yes, I do.
Q I just want to be sure, Father, will you please look at
the defendant again. I want to be sure if he is the person
who appeared before you on that occasion?
A I am sure.
(TSN, May 23, 1986, pp. 14-16)
31
However, on cross examination, Father Fernandez
admitted that he has to be shown a picture of the private
respondent by Violeta Esguerra to recognize the private
respondent, viz:
Q When was the, approximately, when you were first
shown this picture by Violeta Esguerra?
A I cannot recall.
Q At least the month and the year?
A It must be in 1986.
Q What month in 1986.
A It is difficult. . .
Q When was the first time you know you are going to
testify here?
A Let us see, you came there two times and first one was
you want to get a baptismal certificate and then the
second time was I asked you for what is this? And you
said it is for the court.
Q On the second time that Ms. Violeta Esguerra went to
your place, you were already informed that you will
testify here before this Honorable Court?
A Yes.
Q And you were informed by this Ms. Violeta Esguerra
that this man wearing the blue T-shirt is the father?
A Yes, sir.
Q So, it was Violeta Esguerra who. . .
A Yes.
(TSN, May 23, 1986, pp. 18 to 22)
Indeed, there is no proof that Father Fernandez is a close
friend of Violeta Esguerra and the private respondent
which should render unquestionable his identification of
the private respondent during petitioner Claro's baptism.
In the absence of this proof, we are not prepared to
concede that Father Fernandez who officiates numerous
baptismal ceremonies day in and day out can remember
the parents of the children he has baptized.
We cannot also disturb the findings of the respondent
court on the credibility of Violeta Esguerra. Her testimony
is highly suspect as it is self-serving and by itself, is
insufficient to prove the paternity of the petitioners.
We shall not pass upon the correctness of the ruling of
the respondent appellate court applying the doctrine
of res judicata as additional reason in dismissing
petitioners action for recognition and support. It is
unnecessary considering our findings that petitioners
evidence failed to substantiate their cause of action.
IN VIEW WHEREOF, the petition is DISMISSED and the
Decision of the respondent court in CA-G.R. CV No.
29182 is AFFIRMED. Costs against petitioners.
SO ORDERED.
G.R. No. 143256 August 28, 2001
RODOLFO FERNANDEZ and MERCEDES CARANTO
FERNANDEZ, HUSBAND and WIFE, EDDIE C. FERNANDEZ
and LUZ FERNANDEZ, SPOUSES, petitioners,
vs.
ROMEO FERNANDEZ, POTENCIANO FERNANDEZ,
FRANCISCO FERNANDEZ, JULITA FERNANDEZ, WILLIAM
FERNANDEZ, MARY FERNANDEZ, ALEJANDRO
FERNANDEZ, GERARDO FERNANDEZ, RODOLFO
FERNANDEZ and GREGORIO FERNANDEZ, respondents.
GONZAGA-REYES, J.:
Before Us is a petition for review on certiorari assailing
the decision1 of the respondent Court of Appeals dated
December 22, 1999 affirming the decision2 of the
Regional Trial Court Branch 40, Dagupan City in an action
for nullity of contracts, partition, recovery of possession
and damages in favor of plaintiffs-appellees, herein
respondents.
The facts as found by the respondent Court of Appeals,
are as follows:3
"The late Spouses Dr. Jose K. Fernandez, and
Generosa A. de Venecia were the registered
owners of a parcel of land located at Dagupan
City covered by TCT No. T-9267 (525) consisting
of 194 sq. meters, and the two-storey building
constructed thereon covered by Tax Declaration
22-592-1. It is undisputed that Generosa gave
birth to a baby boy named Rogelio who died
when he was only twelve (12) years old as
paralytic. In the testimony of Romeo Fernandez
(TSN, Aug. 31, 1994, pp. 9-14) it was revealed
that the late Spouses being childless by the
32
 death of their son, purchased from a certain
Miliang for P20.00 a one (1) month baby boy.
The boy being referred to was later on
identified as Rodolfo Fernandez, the herein
appellant. Appellant was taken care of by the
couple and was sent to school and became a
dental technician. He lived with the couple until
they became old and disabled.
On July 20, 1982, Jose K. Fernandez died
thereby leaving his wife Generosa A. de Venecia
and Rodolfo Fernandez and an estate
consisting of the following:
(a) "A parcel of land (Lot 9132, before
Lot No. 444-C, of the Cadastral Survey
of Dagupan, Cadastral Case No. 41,
G.L.R.O. Cadastral Record No. 925),
situated in the Barrio of Pantal, City of
Dagupan. Bounded on the NE. by Lot
No. 447; on the SE. by Lot No. 9134;
on the SW. by the Arellano Street; and
on the NW. by Lot No. 9131.
Containing an area of One Hundred
Ninety Four (194) square meters,
more or less. Covered by Transfer
Certificate of Title No. 525 (T-9267)
Pangasinan Registry of Deeds."
(b) "A two (2) storey residential
building made of concrete and wood,
G. I. roofing with a floor area of 154
square meters and 126 square meters
of the first and second floor,
respectively. Declared under Tax Decl.
No. 22- 592-1 and assessed therein at
P26,000.00."
On August 31, 1989, appellant and Generosa de Venecia
executed a Deed of Extra-judicial Partition dividing and
allocating to themselves the following:
To: Generosa de Venecia Vda. De Fernandez
(a) 119.5 sq. m. located on the southwestern
portion of the land;
(b) Whole residential house above-mentioned;
To: Rodolfo V. Fernandez
74.5 square meters to be taken on the
northeastern portion of the land.
On the same day, Generosa de Venecia
executed a Deed of Absolute Sale in favor of
Eddie Fernandez, appellant's son over the
following:
"A portion of One Hundred Nineteen
and One-Half (119.5) Square meters
including the building and/or all
existing thereon to be taken from the
southwestern portion of the parcel of
land described as follows, to wit:
'A parcel of land (Lot No. 9132, before
Lot No. 444-C, of the Cadastral Survey
of Dagupan, Cadastral Case No. 41,
G.L.R.O. Cadastral Record No. 925),
situated in the Barrio of Pantal, City of
Dagupan. Bounded on the NE. by Lot
No. 447; on the SE by Lot No. 9134;
on the SW. by the Arellano Street; and
on the NW. by Lot No. 9131.
Containing an area of One Hundred
and Ninety-Four (194), Square Meters,
more or less, covered by TRANSFER
CERTIFICATE OF TITLE NO. 525 (T-
9267) — Pangasinan Registry of
Deeds" (Exh. "8", Exhibits for the
Defendants)
After learning the transaction, Romeo,
Potenciano, Francisco, Julita, William, Mary,
Alejandro, Gerardo, Rodolfo and Gregorio, all
surnamed Fernandez, being nephews and
nieces of the deceased Jose K. Fernandez, their
father Genaro being a brother of Jose, filed on
September 21, 1994, an action to declare the
Extra-Judicial Partition of Estate and Deed of
Sale void ab initio (docketed as Civil Case No.
94-00016-D).
The complaint alleged that defendants (herein
appellants), motivated by unmitigated greed,
deliberate and malicious acts of depriving the
plaintiff and other heirs (herein appellees) of
the deceased spouses, without basis of heirship
or any iota of rights to succession or
inheritance, taking advantage of the total
physical and mental incapacity of the deceased
Generosa de Venecia aggravated by unlawful
scheme confederated, colluded and conspired
with each other in causing the fake, simulated
grossly inauthentic contracts purporting to be
executed on August 31, 1989 and jointly on the
same date, caused the execution of the deed of
absolute sale purportedly signed by Generosa
de Venecia covering the same property
33
 described in the deed of extra-judicial partition
and by virtue of the said acts, appellants were
able to secure new land titles in their favor
(Records, pp. 3-4, Complaint). Appellees thus
prayed that the Deed of Extra-judicial Partition,
Deed of Absolute Sale and Transfer Certificate
of Title No. 54641 be declared void from the
beginning.
Significantly, in their answer, defendants
alleged:
"16. That the deceased Sps. Jose K.
Fernandez and Generosa were
husband and wife blessed with one
child the herein defendant Rodolfo V.
Fernandez whom they acknowledged
during their lifetime. (italics supplied)
18. That the Deed of Extrajudicial
Partition and Deed of Absolute Sale
executed by the late Generosa de
Venecia and defendant Rodolfo V.
Fernandez which are now in question
were all made with the full
knowledge, consent and approval of
the parties thereto and for value."
(Records, pp. 20-21, Answer)."
On May 10, 1996, the Regional Trial Court rendered a
decision in favor of the plaintiffs, the dispositive portion
reads:4
"WHEREFORE, judgment is hereby rendered in
favor of plaintiffs and against the defendants;
1. Declaring the Deed of Extra-Judicial Partition
dated August 31, 1989 (Exh. "3 ), the Deed of
Absolute Sale dated August 31, 1989 (Exh. 8"),
the TCT No. 54641, and the TCT No. 54693 null
and void;
2. Ordering the defendants to reconvey to, and
to peacefully surrender to the plaintiffs the
possession of the house and lot in question;
3. Ordering the defendants, jointly and severally
to pay to plaintiffs the following:
(a) P50,000.00 as compensatory
damages;
(b) P100,000.00 as moral damages;
(c) P20,000.00 as attorney's fees; and
(d) P2,000.00 as litigation costs.
SO ORDERED."
In so ruling, the trial court found that defendant Rodolfo
Fernandez was not a legitimate nor a legally adopted
child of spouses Dr. Jose Fernandez and Generosa de
Venecia Fernandez, hence Rodolfo could not inherit from
the spouses. Rodolfo's claim as a son of the deceased
spouses Fernandez was negated by the fact that (1) he
only reached high school and was told to stop studying
so that he could help in the clinic of Dr. Fernandez, (2) he
failed to present any birth certificate, (3) the book
entitled Fercolla clan which was compiled and edited by
respected people such as Ambassador Armando
Fernandez, Justice Jorge Coquia and Teresita Coquia-
Sison, showed the geneology of the family of Dr. Jose
and Generosa Fernandez without a child; a pedigree may
be admitted in evidence to prove the facts of genealogy
and that entries in a family bible or other family books or
charts, engravings or rings, family portraits and the like,
may be received as evidence of pedigree,5 (4) the
certification issued by the Records Management and
Archives Office that there was no available information
about the birth of petitioner Rodolfo to the spouses
Fernandez, (5) the application of Dr. Jose Fernandez for
backpay certificate naming petitioner Rodolfo as his son
was doubtful considering that there were blemishes or
alteration in the original copy; (6) that Rodolfo's
baptismal certificate was spurious and falsified since
there were no available records of baptism with the
parish from June 7, 1930 to August 8, 1936, while
Rodolfo's baptismal certificate which was issued in 1989
showed that he was baptized on November 24, 1934. The
court found that the extra-judicial partition and the deed
of absolute sale were prepared and executed under
abnormal, unusual and irregular circumstances which
rendered the documents null and void.
Defendants Rodolfo Fernandez et. al appealed to the
respondent Court of Appeals which affirmed the trial
court's judgment in its assailed decision dated December
22, 1999.
In resolving the appeal, the respondent court delved into
the legitimacy of defendant-appellant Rodolfo
Fernandez' filiation with the deceased spouses. It found
that appellants' evidence which consisted of a certificate
of baptism stating that he was a child of the spouses
Fernandez and the application for recognition of rights to
back pay under RA 897 filed by Dr. Jose Fernandez,
wherein the latter referred to Rodolfo as his son, did not
acquire evidentiary weight to prove his filiation. The
appellate court concluded that while baptismal
34
certificates may be considered public documents, they DECLARING (1) THE DEED OF EXTRA-JUDICIAL
were evidence only to prove the administration of the PARTITION DATED AUGUST 31, 1989 (EXH. '3'),
sacraments on the dates therein specified, but not the THE DEED OF ABSOLUTE SALE ALSO DATED
veracity of the statements or declarations made therein AUGUST 31, 1989 (EXH. '8'), TCT NO. 54641,
with respect to his kinsfolk; that while the application for AND TCT NO. 54693 NULL AND VOID FOR THE
back pay was a public document, it was not executed to FOLLOWING REASONS:
admit the filiation of Jose K. Fernandez with Rodolfo V.
Fernandez, the herein appellant; that the public (a) IT HAS NO FACTUAL BASIS DULY
document contemplated in Article 172 of the Family ESTABLISHED BY THE EVIDENCE ON
Code referred to the written admission of filiation RECORD, AND
embodied in a public document purposely executed as
an admission of filiation and not as obtaining in this case
(b) RESPONDENTS, NOT BEING
wherein the public document was executed as an
PARTIES TO THE QUESTIONED DEEDS,
application for the recognition of rights to back pay
HAVE NO PERSONALITY TO CONTEST
under Republic Act No. 897.
THE VALIDITY OF SAID DOCUMENTS.

Appellants Rodolfo Fernandez et al filed their motion for

III
reconsideration which was denied in a resolution dated
May 17, 2000.6
THE COURT OF APPEALS ERRED IN AFFIRMING
THE TRIAL COURT'S FINDING THAT THE
Rodolfo Fernandez et al filed the instant petition for
PETITIONER RODOLFO FERNANDEZ WAS NOT
review with the following issues:
THE CHILD OF SPOUSES DR. JOSE K.
FERNANDEZ AND GENEROSA DE
I VENECIA BECAUSE

THE COURT OF APPEALS ERRED IN AFFIRMING (a) THE FILIATION OF PETITIONER

THE JUDGMENT OF THE TRIAL COURT RODOLFO FERNANDEZ COULD NOT
ORDERING THE DEFENDANTS, PETITIONERS BE COLLATERALLY ATTACKED IN AN
HEREIN, TO RECONVEY TO, AND PEACEFULLY ACTION FOR DECLARATION OF
SURRENDER TO THE PLAINTIFFS, NULLITY OF DOCUMENTS,
RESPONDENTS HEREIN, THE POSSESSION OF PARTITION, RECOVERY OF
THE HOUSE AND LOT IN QUESTION BECAUSE POSSESSION AND DAMAGES, AND;
THE SAID ORDER IS PALPABLY CONTRARY TO
THE ADMITTED FACTS THE LAW AND
(b) THE DECISION AS AFFIRMED BY
JURISPRUDENCE, FOR THE FOLLOWING
THE COURT OF APPEALS DID NOT
REASONS:
DECLARE IN THE DISPOSITIVE
PORTION THEREOF THAT PETITIONER
(a) THE HOUSE AND LOT IN RODOLFO FERNANDEZ IS NOT THE
QUESTION ARE ADMITTED BY THE CHILD OF SPOUSES DR. JOSE
PARTIES TO BE CONJUGAL FERNANDEZ AND GENEROSA
PROPERTIES OF THE SPOUSES DR. FERNANDEZ.
JOSE K. FERNANDEZ AND GENEROSA
DE VENECIA, AND
IV

(b) RESPONDENTS, WHO ARE NOT

THE COURT OF APPEALS ERRED IN AFFIRMING
RELATED TO GENEROSA DE VENECIA
THE AWARD OF DAMAGES AND ATTORNEY'S
BY CONSANGUINITY, ARE NOT HER
FEES TO THE RESPONDENTS, THERE BEING NO
INTESTATE HEIRS AND CANNOT
FACTUAL BASIS IN THE AFFIRMED DECISION
SUCCEED AB INTESTATO TO HER
TO JUSTIFY SUCH AWARD.
INTESTATE ESTATE.

The principal issue for resolution in this case concerns the

II
rights of the parties to the conjugal property of the
deceased spouses Fernandez.
THE COURT OF APPEALS ERRED IN AFFIRMING
THE JUDGMENT OF THE TRIAL COURT

35
Petitioners allege that the respondent court found the
extra-judicial partition executed by petitioner Rodolfo
Fernandez and Generosa Fernandez, widow of Dr. Jose
Fernandez, null and void because the former allegedly
failed to prove legitimate filiation to his putative father,
the late Dr. Jose Fernandez. Petitioners, contend,
however, that the burden of proof lies with the
respondents because they were the ones contesting the
filiation of Rodolfo Fernandez. They insist that both lower
courts had no power to pass upon the matter of filiation
because it could not be collaterally attacked in the
present action but in a separate and independent action
directly impugning such filiation.
We are not persuaded.
It must be noted that the respondents' principal action
was for the declaration of absolute nullity of two
documents, namely: deed of extra-judicial partition and
deed of absolute sale, and not an action to impugn one's
legitimacy. The respondent court ruled on the filiation of
petitioner Rodolfo Fernandez in order to determine
Rodolfo's right to the deed of extra-judicial partition as
the alleged legitimate heir of the spouses Fernandez.
While we are aware that one's legitimacy can be
questioned only in a direct action seasonably filed by the
proper party, this doctrine has no application in the
instant case considering that respondents' claim was that
petitioner Rodolfo was not born to the deceased spouses
Jose and Generosa Fernandez; we do not have a situation
wherein they (respondents) deny that Rodolfo was a child
of their uncle's wife. The case of Benitez-Badua vs. Court
of Appeals,7 which has a similar factual backdrop is
instructive:
"A careful reading of the above articles8 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
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 Art. 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
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.""
Thus, it is necessary to pass upon the relationship of
petitioner Rodolfo Fernandez to the deceased spouses
Fernandez for the purpose of determining what legal
right Rodolfo has in the property subject of the extra-
judicial partition. In fact, the issue of whether or not
Rodolfo Fernandez was the son of the deceased spouses
Jose Fernandez and Generosa de Venecia was squarely
raised by petitioners in their pre-trial brief9 filed before
the trial court, hence they are now estopped from
assailing the trial court's ruling on Rodolfo's status.
We agree with the respondent court when it found that
petitioner Rodolfo failed to prove his filiation with the
deceased spouses Fernandez. Such is a factual issue
which has been thoroughly passed upon and settled both
by the trial court and the appellate court. Factual findings
of the Court of Appeals are conclusive on the parties and
not reviewable by this Court and they carry even more
weight10 when the Court of Appeals affirms the factual
findings of the trial court.11 We accordingly find no
36
cogent reason to disagree with the respondent court's
evaluation of the evidence presented, thus:12
"The Records Management and Archives Office
is bereft of any records of the birth of appellant
Rodolfo Fernandez. On October 11, 1995, it
issued a certification worded as follows:
"This is to certify that the Register of
Births for the Municipality of
Dagupan, Pangasinan in the year 1984
is not on file with the National
Archives, hence, there is no available
information about the birth of
Rodolfo V. Fernandez alleged to have
been born on November 24, 1934 to
the spouses Jose K. Fernandez and
Generosa de Venecia in Dagupan,
Pangasinan" (Records, p. 146)
Appellant nonetheless, contends that the
Application for Recognition of Back Pay Rights
Under Act No. 897 is a public document and a
conclusive proof of the legitimate filiation
between him and the deceased spouses (Rollo,
p. 41, Appellants' Brief). We do not agree.
It may be conceded that the Application for
Recognition of Back Pay Rights Under Act No.
897 is a public document nevertheless, it was
not executed to admit the filiation of Jose K.
Fernandez with Rodolfo V. Fernandez, the
herein appellant. The public document
contemplated in Article 172 of the Family Code
refer to the written admission of filiation
embodied in a public document purposely
executed as an admission of filiation and not as
obtaining in this case wherein the public
document was executed as an application for
the recognition of rights to back pay under
Republic Act No. 897. Section 23, Rule 132 of
the Revised Rules on Evidence provides:
"SECTION 32. Public documents as
evidence — Documents consisting of
entries in public records made in the
performance of a duty by a public
officer are prima facie evidence of the
facts therein stated. All other public
documents are evidence, even against
a third person, of the fact which gave
rise to their execution and of the date
of the latter."
The rule is not absolute in the sense that the
contents of a public document are conclusive
evidence against the contracting parties as to
the truthfulness of the statements made
therein. They constitute only prima facie
evidence of the facts which give rise to their
execution and of the date of the latter. Thus, a
baptismal certificate issued by a Spanish priest
under the Spanish regime constitutes prima
facie evidence of the facts certified to by the
parish priest from his own knowledge such as
the administration of the sacrament on the day
and in the place and manner set forth in the
certificate; but it does not constitute proof of
the statements made therein concerning the
parentage of the person baptized (Francisco,
Evidence, 1994 ed., p. 516, citing Garcia vs.
Gajul, 53 Phil. 642; Adriano vs. de Jesus, 23 Phil.
350; Buan vs. Arquiza, 5 Phil. 193; Siguion vs.
Siguion, 8 Phil. 7). Public documents are perfect
evidence of the fact which give rise to their
execution and of the date of the latter if the act
which the officer witnessed and certified to or
the date written by him are not shown to be
false; but they are not conclusive evidence with
respect to the truthfulness of the statements
made therein by the interested parties (Martin,
Rules of Court in the Philippines with Note and
Comments, vol. 4, p. 577).
Corollarily, the Application for Recognition of
Back Pay Rights Under Act No. 897 is only a
proof that Jose K. Fernandez filed said
application on June 5, 1954 in Dagupan City but
it does not prove the veracity of the declaration
and statement contained in the said application
that concern the relationship of the applicant
with herein appellant. In like manner, it is not a
conclusive proof of the filiation of appellant
with his alleged father, Jose K. Fernandez the
contents being, only prima facie evidence of the
facts stated therein.
Additionally, appellant claims that he enjoyed
and possessed the status of being a legitimate
child of the spouses openly and continuously
until they died (Rollo, p. 42; Appellants' Brief).
Open and continuous possession of the status
of a legitimate child is meant the enjoyment by
the child of the position and privileges usually
attached to the status of a legitimate child such
as bearing the paternal surname, treatment by
the parents and family of the child as
legitimate, constant attendance to the child's
support and education, and giving the child the
reputation of being a child of his parents
37
 (Sempio-Diy, The Family Code of the
Philippines, pp. 245-246). However, it must be
noted that, as was held in Quismundo vs. WCC,
132 SCRA 590, possession of status of a child
does not in itself constitute an
acknowledgment; it is only a ground for a child
to compel recognition by his assumed parent.
Lastly, to substantiate his claim of being a
legitimate child appellant presented a
baptismal certificate issued by Fr. Rene
Mendoza of the St. John Metropolitan
Cathedral of Dagupan City on August 10, 1989
stating therein that appellant is a child of the
late spouses having been born on November
15, 1934 and baptized on November 24, 1934
(Exh. "1" Exhibits for the Defendants). As stated,
while baptismal certificates may be considered
public documents, they are evidence only to
prove the administration of the sacraments on
the dates therein specified, but not the veracity
of the statements or declarations made therein
with respect to his kinsfolk (Reyes vs. Court of
Appeals, 135 SCRA 439). It may be argued that
a baptismal certificate is one of the other
means allowed by the Rules of Court and
special laws of proving filiation but in this case,
the authenticity of the baptismal certificate was
doubtful when Fr. Raymundo Q. de Guzman of
St. John the Evangelist Parish of Lingayen-
Dagupan, Dagupan City issued a certification
on October 16, 1995 attesting that the records
of baptism on June 7, 1930 to August 8, 1936
were all damaged (Records, p. 148, Exh. "G").
Neither the family portrait offered in evidence
establishes a sufficient proof of filiation Pictures
do not constitute proof of filiation (Reyes vs.
Court of Appeals) (supra). In fine, the evidence
presented by appellant did not acquire
evidentiary weight to prove his filiation.
Consequently the Extra-Judicial Partition dated
August 31, 1989 executed by appellant Rodolfo
Fernandez and Generosa de Venecia is null and
void."
Considering the foregoing findings, petitioner Rodolfo is
not a child by nature of the spouses Fernandez and not a
legal heir of Dr. Jose Fernandez, thus the subject deed of
extra-judicial settlement of the estate of Dr. Jose
Fernandez between Generosa vda. de Fernandez and
Rodolfo is null and void insofar as Rodolfo is
concerned13 pursuant to Art. 1105 of the New Civil Code
which states:
"A partition which includes a person believed to
be an heir, but who is not, shall be void only
with respect to such person."
Petitioners next contend that respondents admitted that
the property in question was the conjugal property of the
late spouses Dr. Jose Fernandez and Generosa de
Venecia, thus when Dr. Jose Fernandez died intestate in
1982, his estate consisted solely of ½ pro indiviso of the
conjugal property and the other half belonged to his wife
Generosa de Venecia; that granting Dr. Jose Fernandez
was only survived by his wife, the respondents nephews
and nieces of Dr. Jose are entitled to inherit the ½ share
of the decedent's estate while the ¾ share of the
conjugal property will still belong to Generosa as the
widow of Dr. Jose Fernandez, hence the trial court's order
reconveying the possession of the subject lot and
building to respondents was contrary to the admitted
facts and law since respondents are not related by
consanguinity to Generosa vda de Fernandez.
We agree.
Article 1001 of the Civil Code provides:
"Should brothers and sisters or their children
survive with the widow or widower, the latter
shall be entitled to one half of the inheritance
and the brothers and sisters or their children to
the other half."
Generosa was the widow of Dr. Jose Fernandez and as
provided in the above-quoted Article 1001, she is entitled
to the ½ of the inheritance and the respondents to the
other ½. In effect, ¾ pro indiviso is the share of
Generosa as the surviving spouse, i.e., ½ as her share of
the conjugal property estate and ½ of the remaining ½
as share as heir from her husband's estate. Thus, we find
well taken the petitioners' assertion that the annulment
of the extra-judicial partition between Generosa and
petitioner Rodolfo does not necessarily result in
respondents' having exclusive right to the conjugal
property, as erroneously found by the respondent court.
Generosa, during her lifetime, had the right to enjoy and
dispose of her property without other limitations than
those established by law,14 which right she exercised by
executing a deed of sale in favor of petitioner Eddie
Fernandez.
Petitioners assails respondents' right, not being heirs of
Generosa, to question the validity of the deed of sale
since the action for the annulment of contracts may only
be instituted by all who are thereby obliged principally or
subsidiarily.15
38
We disagree.
As a rule, a contract cannot be assailed by one who is not
a party obliged principally or subsidiarily under a
contract. However, when a contract prejudices the rights
of a third person, he may exercise an action for nullity of
the contract if he is prejudiced in his rights with respect
to one of the contracting parties, and can show
detriment which would positively result to him from the
contract in which he had no intervention.16 As we have
discussed above, respondents are entitled to the ¼ of
the entire conjugal property, i.e., lot and building;
however considering that widow Generosa, during her
lifetime, sold the entire building to petitioner Eddie
Fernandez, respondents had been deprived of their ¼
share therein, thus the deed of sale was prejudicial to the
interest of respondents as regards their ¼ share in the
building. Respondents therefore, have a cause of action
to seek the annulment of said deed of sale.
Petitioners further allege that the respondent court erred
in declaring null and void the deed of sale executed
between Generosa and petitioner Eddie Fernandez
concluding that the same was simulated or false and in
affirming the trial court's findings that the deed was
prepared and executed under abnormal, unusual and
irregular circumstances without however, particularly
stating the circumstances.
We agree.
Respondents allege that the deed of sale was fictitious
and simulated because there was no consideration for
the sale. However, this assertion was controverted by
vendee petitioner Eddie Fernandez' declaration, that the
money he paid for the sale came from his savings as
overseas contract worker in Saudi Arabia from 1982-1989
which respondents failed to controvert by presenting
evidence to the contrary. The presumption that a
contract has sufficient consideration cannot be
overthrown by a mere assertion that it has no
consideration.17 Under Art. 1354 of the Civil Code,
consideration is presumed unless the contrary is proven.
Respondents also claim that the signature appearing in
the deed of sale was not that of Generosa because she
was already bedridden with both legs amputated before
she died. Forgery cannot be presumed; it must be proved
by clear, positive and convincing evidence18 and whoever
alleges it has the burden of proving the same;19 a burden
respondents failed to discharge. The respondents had
not presented any convincing proof to override the
evidentiary value of the duly notarized deed of sale. A
notarial document is evidence of the facts in the clear
unequivocal manner therein expressed. It has in its favor
the presumption of regularity. To contradict all these,
there must be evidence that is clear, convincing and
more than merely preponderant.20
We note however, that Generosa sold the entire 2 storey
building to petitioner Eddie Fernandez, i.e. she did not
only sell her ¾ undivided share in the building but also
the ¼ share of the respondents. We rule, that such a sale
of the entire building without the consent of the
respondents is not null and void as only the rights of the
co-owner seller are transferred, thereby making the
buyer, petitioner Eddie, a co-owner of the ¾ share of the
building together with the respondents who owned the
¼ share therein.21
Finally, anent the issue of actual and moral damages and
attorney's fees awarded by the trial court, we find them
to be bereft of factual basis. A party is entitled to an
adequate compensation for such pecuniary loss actually
suffered by him as he has duly proven.22 Such damages,
to be recoverable, must not only be capable of proof, but
must actually be proved with a reasonable degree of
certainty.23 Courts cannot simply rely on speculation,
conjecture or guesswork in determining the fact and
amount of damages.24 The testimony of respondent
Romeo Fernandez that he suffered around P100,000
actual damages was not supported by any documentary
or other admissible evidence. We also agree with the
petitioners that the respondent court should not have
awarded moral damages in the amount of P100,000 since
they also failed to show proof of moral suffering, mental
anguish, serious anxiety, besmirched reputation,
wounded feelings and social humiliation. Attorney's fees
should likewise be deleted for lack of factual basis and
legal justification. Both the lower courts did not cite
specific factual basis to justify the award of attorney's
fees, which is in violation of the proscription against the
imposition of a penalty on the right to litigate.25
WHEREFORE, premises considered, the assailed judgment
is hereby Affirmed with Modification, as follows:
1. Respondents as legitimate heirs of Dr. Jose Fernandez
are entitled to the ¼ share of the conjugal lot and
building of the deceased spouses Jose and Generosa
Fernandez who died childless and intestate;
2. The deed of extra-judicial partition is nullified insofar
as the share of petitioner Rodolfo in the conjugal lot is
concerned and the title issued pursuant thereto in the
name of Rodolfo Fernandez;
3. Considering that the deed of sale is valid insofar as the
¾ share of Generosa sold to petitioner Eddie Fernandez,
TCT No. 54693 is cancelled and a new title should be
issued in the names of petitioner Eddie Fernandez and
39
respondents as co-owners of the ¾ and ¼ shares
respectively in the conjugal building.
4. The awards of actual and moral damages and
attorney's fees are deleted.
SO ORDERED.
G.R. No. 132305 December 4, 2001
IDA C. LABAGALA, petitioner,
vs.
NICOLASA T. SANTIAGO, AMANDA T. SANTIAGO and
HON. COURT OF APPEALS, respondents.
QUISUMBING, J.:
This petition for review on certiorari seeks to annul the
decision dated March 4, 1997,1 of the Court of Appeals in
CA-G.R. CV No. 32817, which reversed and set aside the
judgment dated October 17, 1990,2 of the Regional Trial
Court of Manila, Branch 54, in Civil Case No.87-41515,
finding herein petitioner to be the owner of 1/3 pro
indiviso share in a parcel of land. 1âwphi1.nêt
The pertinent facts of the case, as borne by the records,
are as follows:
Jose T. Santiago owned a parcel of land covered by TCT
No. 64729, located in Rizal Avenue Extension, Sta. Cruz,
Manila. Alleging that Jose had fraudulently registered it
in his name alone, his sisters Nicolasa and Amanda (now
respondents herein) sued Jose for recovery of 2/3 share
of the property.3 On April 20, 1981, the trial court in that
case decided in favor of the sisters, recognizing their
right of ownership over portions of the property covered
by TCT No. 64729. The Register of Deeds of Manila was
required to include the names of Nicolasa and Amanda in
the certificate of title to said property.4
Jose died intestate on February 6, 1984. On August 5,
1987, respondents filed a complaint for recovery of title,
ownership, and possession against herein petitioner, Ida
C. Labagala, before the Regional Trial Court of Manila, to,
recover from her the 1/3 portion of said property
pertaining to Jose but which came into petitioner's sole
possession upon Jose's death.
Respondents alleged that Jose's share in the property
belongs to them by operation of law, because they are
the only legal heirs of their brother, who died intestate
and without issue. They claimed that the purported sale
of the property made by their brother to petitioner
sometime in March 19795 was executed through
petitioner's machinations and with malicious intent, to
enable her to secure the corresponding transfer
certificate of title (TCT No. 1723346) in petitioner's name
alone.7
Respondents insisted that the deed of sale was a forgery
.The deed showed that Jose affixed his thumbmark
thereon but respondents averred that, having been able
to graduate from college, Jose never put his thumb mark
on documents he executed but always signed his name
in full. They claimed that Jose could not have sold the
property belonging to his "poor and unschooled sisters
who. ..sacrificed for his studies and personal
welfare."8 Respondents also pointed out that it is highly
improbable for petitioner to have paid the supposed
consideration of P150,000 for the sale of the subject
property because petitioner was unemployed and
without any visible means of livelihood at the time of the
alleged sale. They also stressed that it was quite unusual
and questionable that petitioner registered the deed of
sale only on January 26, 1987, or almost eight years after
the execution of the sale.9
On the other hand, petitioner claimed that her true name
is not Ida C. Labagala as claimed by respondent but Ida
C. Santiago. She claimed not to know any person by the
name of Ida C. Labagala. She claimed to be the daughter
of Jose and thus entitled to his share in the subject
property. She maintained that she had always stayed on
the property, ever since she was a child. She argued that
the purported sale of the property was in fact a donation
to her, and that nothing could have precluded Jose from
putting his thumbmark on the deed of sale instead of his
signature. She pointed out that during his lifetime, Jose
never acknowledged respondents' claim over the
property such that respondents had to sue to claim
portions thereof. She lamented that respondents had to
disclaim her in their desire to obtain ownership of the
whole property.
Petitioner revealed that respondents had in 1985 filed
two ejectment cases against her and other occupants of
the property. The first was decided in her and the other
defendants' favor, while the second was dismissed. Yet
respondents persisted and resorted to the present action.
Petitioner recognized respondents' ownership of 2/3 of
the property as decreed by the RTC. But she averred that
she caused the issuance of a title in her name alone,
allegedly after respondents refused to take steps that
would prevent the property from being sold by public
auction for their failure to pay realty taxes thereon. She
added that with a title issued in her name she could avail
of a realty tax amnesty.
40
On October 17, 1990, the trial court ruled in favor of
petitioner, decreeing thus:
WHEREFORE, judgment is hereby rendered
recognizing the plaintiffs [herein respondents]
as being entitled to the ownership and
possession each of one-third
(1/3) pro indiviso share of the property
originally covered by Transfer Certificate of Title
No. 64729, in the name of Jose T. Santiago and
presently covered by Transfer Certificate of Title
No. 172334, in the name of herein defendant
[herein petitioner] and which is located at No.
3075-A Rizal Avenue Extension, Sta. Cruz,
Manila, as per complaint, and the adjudication
to plaintiffs per decision in Civil Case No. 56226
of this Court, Branch VI, and the remaining one-
third (1/3) pro indiviso share adjudicated in said
decision to defendant Jose T. Santiago in said
case, is hereby adjudged and adjudicated to
herein defendant as owner and entitled to
possession of said share. The Court does not
see fit to adjudge damages, attorney's fees and
costs. Upon finality of this judgment, Transfer
Certificate of Title No. 172334 is ordered
cancelled and a new title issued in the names of
the two (2) plaintiffs and the defendant as
owners in equal shares, and the Register of
Deeds of Manila is so directed to effect the
same upon payment of the proper fees by the
parties herein.
SO ORDERED.10
According to the trial court, while there was indeed no
consideration for the deed of sale executed by Jose in
favor of petitioner, said deed constitutes a valid donation.
Even if it were not, petitioner would still be entitled to
Jose's 1/3 portion of the property as Jose's daughter. The
trial court ruled that the following evidence shows
petitioner to be the daughter of Jose: (1) the decisions in
the two ejectment cases filed by respondents which
stated that petitioner is Jose's daughter, and (2) Jose's
income tax return which listed petitioner as his daughter.
It further said that respondents knew of petitioner's
existence and her being the daughter of Jose, per records
of the earlier ejectment cases they filed against
petitioner. According to the court, respondents were not
candid with the court in refusing to recognize petitioner
as Ida C. Santiago and insisting that she was Ida C.
Labagala, thus affecting their credibility.
Respondents appealed to the Court of Appeals, which
reversed the decision of the trial court.
WHEREFORE, the appealed decision is
REVERSED and one is entered declaring the
appellants Nicolasa and Amanda Santiago the
co-owners in equal shares of the one-third (1/3)
pro indiviso share of the late Jose Santiago in
the land and building covered by TCT No.
172334. Accordingly, the Register of Deeds of
Manila is directed to cancel said title and issue
in its place a new one reflecting this decision.
SO ORDERED.
Apart from respondents' testimonies, the appellate court
noted that the birth certificate of Ida Labagala presented
by respondents showed that Ida was born of different
parents, not Jose and his wife. It also took into account
the statement made by Jose in Civil Case No. 56226 that
he did not have any child.
Hence, the present petition wherein the following issues
are raised for consideration:
1. Whether or not petitioner has adduced preponderant
evidence to prove that she is the daughter of the late
Jose T. Santiago, and
2. Whether or not respondents could still impugn the
filiation of the petitioner as the daughter of the late Jose
T. Santiago.
Petitioner contends that the trial court was correct in
ruling that she had adduced sufficient evidence to prove
her filiation by Jose Santiago, making her his sole heir
and thus entitled to inherit his 1/3 portion. She points
out that respondents had, before the filing of the instant
case, previously "considered"11 her as the daughter of
Jose who, during his lifetime, openly regarded her as his
legitimate daughter. She asserts that her identification as
Jose's daughter in his ITR outweighs the "strange"
answers he gave when he testified in Civil Case No.
56226.
Petitioner asserts further that respondents cannot
impugn her filiation collaterally, citing the case of Sayson
v. Court of Appeals12 in which we held that "(t)he
legitimacy of (a) child can be impugned only in a direct
action brought for that purpose, by the proper parties
and within the period limited by law."13 Petitioner also
cites Article 263 of the Civil Code in support of this
contention.14
For their part, respondents contend that petitioner is not
the daughter of Jose, per her birth certificate that
indicates her parents as Leo Labagala and Cornelia
Cabrigas, instead of Jose Santiago and Esperanza
41
Cabrigas.15 They argue that the provisions of Article 263
of the Civil Code do not apply to the present case since
this is not an action impugning a child's legitimacy but
one for recovery of title, ownership, and possession of
property .
The issues for resolution in this case, to our mind, are (1)
whether or not respondents may impugn petitioner's
filiation in this action for recovery of title and possession;
and (2) whether or not petitioner is entitled to Jose's 1/3
portion of the property he co-owned with respondents,
through succession, sale, or donation.
On the first issue, we find petitioner's reliance on Article
263 of the Civil Code to be misplaced. Said article
provides:
.Art. 263. The action to impugn the legitimacy
of the child shall be brought within one year
from the recording of the birth in the Civil
Register, if the husband should be in the same
place, or in a proper case, any of his heirs.
If he or his heirs are absent, the period shall be
eighteen months if they should reside in the
Philippines; and two years if abroad. If the birth
of the child has been concealed, the term shall
be counted from the discovery of the fraud.
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.16
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.17 Moreover, the present action is
one for recovery of title and possession, and thus outside
the scope of Article 263 on prescriptive periods.
Petitioner's reliance on Sayson is likewise improper. The
factual milieu present in Sayson does not obtain in the
instant case. What was being challenged by petitioners
in Sayson was (1) the validity of the adoption of Delia and
Edmundo by the deceased Teodoro and Isabel Sayson,
and (2) the legitimate status of Doribel Sayson. While
asserting that Delia and Edmundo could not have been
validly adopted since Doribel had already been born to
the Sayson couple at the time, petitioners at the same
time made the conflicting claim that Doribel was not the
child of the couple. The Court ruled in that case that it
was too late to question the decree of adoption that
became final years before. Besides, such a challenge to
the validity of the adoption cannot be made collaterally
but in a direct proceeding.18
In this case, respondents are not assailing petitioner's
legitimate status but are, instead, asserting that she is not
at all their brother's child. The birth certificate presented
by respondents support this allegation.
We agree with the Court of Appeals that:
The Certificate. of Record of Birth (Exhibit
H)19 plainly states that... Ida was the child of the
spouses Leon Labagala and [Cornelia] Cabrigas.
This document states that it was Leon Labagala
who made the report to the Local Civil Registrar
and therefore the supplier of the entries in said
Certificate. Therefore, this certificate is proof of
the filiation of Ida. Appellee however denies
that Exhibit H is her Birth Certificate. She insists
that she is not Ida Labagala but Ida Santiago. If
Exhibit H is not her birth certificate, then where
is hers? She did not present any though it
would have been the easiest thing to do
considering that according to her baptismal
certificate she was born in Manila in 1969. This
court rejects such denials and holds that Exhibit
H is the certificate of the record of birth of
appellee Ida...
Against such evidence, the appellee Ida could
only present her testimony and a baptismal
certificate (Exhibit 12) stating that appellee's
parents were Jose Santiago and Esperanza
Cabrigas. But then, a decisional rule in evidence
states that a baptismal certificate is not a proof
of the parentage of the baptized person. This
document can only prove the identity of the
baptized, the date and place of her baptism, the
identities of the baptismal sponsors and the
priest who administered the sacrament --
nothing more.20 (Citations omitted.)
At the pre-trial conducted on August 11, 1988,
petitioner's counsel admitted that petitioner did not have
a birth certificate indicating that she is Ida Santiago,
though she had been using this name all her life.21
42
Petitioner opted not to present her birth certificate to
prove her relationship with Jose and instead offered in
evidence her baptismal certificate.22 However, as we held
in Heirs of Pedro Cabais v. Court of Appeals :
...a baptismal certificate is evidence only to
prove the administration of the sacrament on
the dates therein specified, but not the veracity
of the declarations therein stated with respect
to [a person's] kinsfolk. The same is conclusive
only of the baptism administered, according to
the rites of the Catholic Church, by the priest
who baptized subject child, but it does not
prove the veracity of the declarations and
statements contained in the certificate
concerning the relationship of the person
baptized.23
A baptismal certificate, a private document, is not
conclusive proof of filiation.24 More so are the entries
made in an income tax return, which only shows that
income tax has been paid and the amount thereof.25
We note that the trial court had asked petitioner to
secure a copy of her birth certificate but petitioner,
without advancing any reason therefor, failed to do so.
Neither did petitioner obtain a certification that no
record of her birth could be found in the civil registry, if
such were the case. We find petitioner's silence
concerning the absence of her birth certificate telling. It
raises doubt as to the existence of a birth certificate that
would show petitioner to be the daughter of Jose
Santiago and Esperanza Cabrigas. Her failure to show her
birth certificate would raise the presumption that if such
evidence were presented, it would be adverse to her
claim. Petitioner's counsel argued that petitioner had
been using Santiago all her life. However, use of a family
name certainly does not establish pedigree.
Further, we note that petitioner, who claims to be Ida
Santiago, has the same birthdate as Ida Labagala.26 The
similarity is too uncanny to be a mere coincidence.
During her testimony before the trial court, petitioner
denied knowing Cornelia Cabrigas, who was listed as the
mother in the birth certificate of Ida Labagala. In her
petition before this Court, however, she stated that
Cornelia is the sister of her mother, Esperanza. It appears
that petitioner made conflicting statements that affect
her credibility and could cast along shadow of doubt on
her claims of filiation.
Thus, we are constrained to agree with the factual finding
of the Court of Appeals that petitioner is in reality the
child of Leon Labagala and Cornelia Cabrigas, and
contrary to her averment, not of Jose Santiago and
Esperanza Cabrigas. Not being a child of Jose, it follows
that petitioner can not inherit from him through intestate
succession. It now remains to be seen whether the
property in dispute was validly transferred to petitioner
through sale or donation.
On the validity of the purported deed of sale, however,
we agree with the Court of Appeals that:
...This deed is shot through and through with so
many intrinsic defects that a reasonable mind is
inevitably led to the conclusion that it is fake.
The intrinsic defects are extractable from the
following questions: a) If Jose Santiago
intended to donate the properties in question
to Ida, what was the big idea of hiding the
nature of the contract in the facade of the sale?
b) If the deed is a genuine document, how
could it have happened that Jose Santiago who
was of course fully aware that he owned only
1/3 pro indiviso of the properties covered by
his title sold or donated the whole properties to
Ida? c) Why in heaven's name did Jose
Santiago, a college graduate, who always
signed his name in documents requiring his
signature (citation omitted) [affix] his
thumbmark on this deed of sale? d) If Ida was
[the] child of Jose Santiago, what was the sense
of the latter donating his properties to her
when she would inherit them anyway upon his
death? e) Why did Jose Santiago affix his
thumbmark to a deed which falsely stated that:
he was single (for he was earlier married to
Esperanza Cabrigas ); Ida was of legal age (for [
s ]he was then just 15 years old); and the
subject properties were free from liens and
encumbrances (for Entry No. 27261, Notice of
Adverse Claim and Entry No. 6388, Notice of Lis
Pendens were already annotated in the title of
said properties). If the deed was executed in
1979, how come it surfaced only in 1984 after
the death of Jose Santiago and of all people,
the one in possession was the baptismal
sponsor of Ida?27
Clearly, there is no valid sale in this case. Jose did not
have the right to transfer ownership of the entire
property to petitioner since 2/3 thereof belonged to his
sisters.28 Petitioner could not have given her consent to
the contract, being a minor at the time.29 Consent of the
contracting parties is among the essential requisites of a
contract,30 including one of sale, absent which there can
be no valid contract. Moreover, petitioner admittedly did
not pay any centavo for the property,31 which makes the
sale void. Article 1471 of the Civil Code provides:
43
 Art. 1471. If the price is simulated, the sale is
void, but the act may be shown to have been in
reality a donation, or some other act or
contract.
Neither may the purported deed of sale be a valid deed
of donation. Again, as explained by the Court of Appeals:
...Even assuming that the deed is genuine, it
cannot be a valid donation. It lacks the
acceptance of the donee required by Art. 725 of
the Civil Code. Being a minor in 1979, the
acceptance of the donation should have been
made by her father, Leon Labagala or [her]
mother Cornelia Cabrigas or her legal
representative pursuant to Art. 741 of the same
Code. No one of those mentioned in the law -
in fact no one at all - accepted the "donation"
for Ida.32
In sum, we find no reversible error attributable to the
assailed decision of the Court of Appeals, hence it must
be upheld. 1âwphi1.nêt
WHEREFORE, the petition is DENIED, and the decision of
the Court of Appeals in CA-G.R. CY No. 32817
is AFFIRMED.
Costs against petitioner.
SO ORDERED.
G.R. No. 146737 December 10, 2001
IN THE MATTER OF THE INTESTATE ESTATE OF THE LATE
JUAN "JHONNY" LOCSIN, SR., LUCY A. SOLINAP (Daughter
of the late Maria Locsin Araneta), the successors of the
late LOURDES C. LOCSIN, MANUEL C. LOCSIN, ESTER
LOCSIN JARANTILLA and the intestate estate of the late
JOSE C. LOCSIN, JR., petitioners,
vs.
JUAN C. LOCSIN, JR., respondent.
SANDOVAL-GUTIERREZ, J.:
A Certificate of Live Birth duly recorded in the Local Civil
Registry, a copy of which is transmitted to the Civil
Registry General pursuant to the Civil Registry Law,
is prima facie evidence of the facts therein stated.
However, if there are material discrepancies between
them, the one entered in the Civil Registry General
prevails.
This is a petition for review on certiorari under Rule 45 of
the 1997 Rules of Civil Procedure, as amended, seeking
the reversal of the September 13, 2000 Decision of the
Court of Appeals in CA-G.R. CV No. 57708 which
affirmed in toto the September 13, 1996 order of the
Regional Trial Court, Branch 30, of Iloilo City in Special
Proceeding No. 4742. The September 13 order of the trial
court appointed Juan E. Locsin, Jr., respondent, as the
sole administrator of the Intestate Estate of the late Juan
"Jhonny" Locsin, Sr.
Records show that on November 11, 1991, or eleven (11)
months after Juan "Jhonny" Locsin, Sr.1 died intestate on
December 11, 1990, respondent Juan E. Locsin, Jr. filed
with the Regional Trial Court of Iloilo City, Branch 30, a
"Petition for Letters of Administration" (docketed as
Special Proceeding No. 4742) praying that he be
appointed Administrator of the Intestate Estate of the
deceased. He alleged, among others, (a) that he is an
acknowledged natural child of the late Juan C. Locsin; (b)
that during his lifetime, the deceased owned personal
properties which include undetermined savings, current
and time deposits with various banks, and 1/6 portion of
the undivided mass of real properties owned by him and
his siblings, namely: Jose Locsin, Jr., Manuel Locsin, Maria
Locsin Yulo, Lourdes Locsin and Ester Locsin; and (c) that
he is the only surviving legal heir of the decedent.
On November 13, 1991, the trial court issued an order
setting the petition for hearing on January 13, 1992,
which order was duly published,2 thereby giving notice to
all persons who may have opposition to the said petition.
Before the scheduled hearing, or on January 10, 1992, the
heirs of Jose Locsin, Jr., the heirs of Maria Locsin, Manuel
Locsin and Ester Jarantilla, claiming to be the lawful heirs
of the deceased, filed an opposition to respondent's
petition for letters of administration. They averred that
respondent is not a child or an acknowledged natural
child of the late Juan C. Locsin, who during his lifetime,
never affixed "Sr." in his name.
On January 5, 1993, another opposition to the petition
was filed by Lucy Salinop (sole heir of the late Maria
Locsin Vda. De Araneta, sister of the deceased), Manuel
Locsin and the successors of the late Lourdes C. Locsin
alleging that respondent's claim as a natural child is
barred by prescription or the statute of limitations.
The Intestate Estate of the late Jose Locsin, Jr. (brother of
the deceased) also entered its appearance in the estate
proceedings, joining the earlier oppositors. This was
followed by an appearance and opposition dated January
26, 1993 of Ester Locsin Jarantilla (another sister of Juan
C. Locsin), likewise stating that there is no filial
44
relationship between herein respondent and the
deceased.
Thereupon, the trial court conducted hearings.
To support his claim that he is an acknowledged natural
child of the deceased and, therefore, entitled to be
appointed administrator of the intestate estate,
respondent submitted a machine copy (marked as Exhibit
"D")3 of his Certificate of Live Birth No. 477 found in the
bound volume of birth records in the Office of the Local
Clerk Registrar of Iloilo City. Exhibit "D" contains the
information that respondent's father is Juan C. Locsin, Sr.
and that he was the informant of the facts stated therein,
as evidenced by his signatures (Exhibit "D-2" and "D-3").
To prove the existence and authenticity of Certificate of
Live Birth No. 477 from which Exhibit "D" was machine
copied, respondent presented Rosita J. Vencer, the Local
Civil Registrar of Iloilo City. She produced and identified
in court the bound volume of 1957 records of birth
where the alleged original of Certificate of Live Birth No.
477 is included.
Respondent also offered in evidence a photograph
(Exhibit "C")4 showing him and his mother, Amparo
Escamilla, in front of a coffin bearing Juan C. Locsin's
dead body. The photograph, respondent claims, shows
that he and his mother have been recognized as family
members of the deceased.
In their oppositions, petitioners claimed that Certificate
of Live Birth No. 477 (Exhibit "D") is spurious. They
submitted a certified true copy of Certificate of Live Birth
No. 477 found in the Civil Registrar General, Metro
Manila, marked as Exhibit "8",5 indicating that the birth of
respondent was reported by his mother, Amparo
Escamilla, and that the same does not contain the
signature of the late Juan C. Locsin. They observed as
anomalous the fact that while respondent was born on
October 22, 1956 and his birth was recorded on January
30, 1957, however, his Certificate of Live Birth No. 447
(Exhibit "D") was recorded on a December 1, 1958 revised
form. Upon the other hand, Exhibit "8" appears on a July,
1956 form, already used before respondent's birth. This
scenario dearly suggests that Exhibit "D" was falsified.
Petitioners presented as witness, Col. Pedro L. Elvas, a
handwriting expert. He testified that the signatures of
Juan C. Locsin and Emilio G. Tomesa (then Civil Registrar
of Iloilo City) appearing in Certificate of Live Birth No. 477
(Exhibit "D") are forgeries. He thus concluded that the
said Certificate is a spurious document surreptitiously
inserted into the bound volume of birth records of the
Local Civil Registrar of Iloilo City.
After hearing, the trial court, finding that Certificate of
Live Birth No. 477 (Exhibit "D") and the photograph
(Exhibit "C") are sufficient proofs of respondent's
illegitimate filiation with the deceased, issued on
September 13, 1996 an order, the dispositive portion of
which reads:
"WHEREFORE, premises considered, this
PETITION is hereby GRANTED and the
petitioner Juan E. Locsin, Jr. is hereby appointed
Administrator of the Intestate Estate of the late
Juan "Johnny" Locsin, Sr.
"Let Letters of Administration be issued in his
favor, upon his filing of a bond in the sum of
FIFTY THOUSAND PESOS (P50,000.00) to be
approved by this Court.
"SO ORDERED."6
On appeal, the Court of Appeals rendered the challenged
Decision affirming in toto the order of the trial court
dated September 13, 1996. Petitioners moved for a
reconsideration, while respondent filed a motion for
execution pending appeal. Both motions were, however,
denied by the Appellate Court in its Resolution dated
January 10, 2001.
Hence, the instant petition for review on certiorari by
petitioners.
The focal issue for our resolution is which of the two
documents — Certificate of Live Birth No. 477 (Exhibit
"D") and Certificate of Live Birth No. 477 (Exhibit "8") is
genuine.
The rule that factual findings of the trial court, adopted
and confirmed by the Court of Appeals, are final and
conclusive and may not be reviewed on appeal7 does not
apply when there appears in the record of the case some
facts or circumstances of weight and influence which
have been overlooked, or the significance of which have
been misinterpreted, that if considered, would affect the
result of the case.8 Here, the trial court failed to
appreciate facts and circumstances that would have
altered its conclusion.
Section 6, Rule 78 of the Revised Rules of Court lays
down the persons preferred who are entitled to the
issuance of letters of administration, thus:
"Section 6. When and to whom letters of
administration granted. — If no executor is
named in the will, or the executor or executors
are incompetent, refuse the trust, or fail to give
bond, or a person dies intestate, administration
shall be granted:
45
 (a) To the surviving husband or wife, as the case
may be, or next of kin, or both, in the discretion
of the court, or to such person as such surviving
husband or wife, or next of kin, requests to
have appointed, if competent and willing to
serve;
(b) If such surviving husband or wife, as the
case may be, or next of kin, or the person
selected by them, be incompetent or unwilling,
or if the husband or widow, or next of kin,
neglects for thirty (30) days after the death of a
person to apply for administration or to request
that administration be granted to some other
person, it may be granted to one or more of the
principal creditors, if competent and willing to
serve;
(c) If there is no such creditor competent and
willing to serve, it may be granted to such other
person as the court may select." (Emphasis
ours)
Upon the other hand, Section 2 of Rule 79 provides that a
petition for letters of administration must be filed by an
interested person, thus:
"Sec. 2 Contents of petition for letters of
administration. — A petition for letters of
administration must be filed by an interested
person and must show, so far as known to the
petitioner:
(a) The jurisdictional facts; x x x" (Emphasis
ours)
An "interested party", in estate proceedings, is one who
would be benefited in the estate, such as an heir, or one
who has a claim against the estate, such as a
creditor.9 Also, in estate proceedings, the phrase "next of
kin" refers to those whose relationship with the decedent
is such that they are entitled to share in the estate as
distributees.10 In Gabriel v. Court of Appeals,11 this Court
held that in the appointment of the administrator of the
estate of a deceased person, the principal consideration
reckoned with is the interest in said estate of the one to
be appointed administrator.
Here, undisputed is the fact that the deceased, Juan C.
Locsin, was not survived by a spouse. In his petition for
issuance of letters of administration, respondent alleged
that he is an acknowledged natural son of the deceased,
implying that he is an interested person in the estate and
is considered as next of kin. But has respondent
established that he is an acknowledged natural son of the
deceased? On this point, this Court, through Mr. Justice
Jose C. Vitug, held:
"The filiation of illegitimate children, like
legitimate children, is established by (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 thereof,
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. 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 acknowledgment 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. Where,
instead, a claim for recognition is predicated on
other evidence merely tending to prove
paternity, i.e., outside of a record of birth, a will,
a statement before a court of record or an
authentic writing, judicial action within the
applicable statute of limitations is essential in
order to establish the child's
acknowledgment."12 (Emphasis ours)
Here, respondent, in order to establish his filiation with
the deceased, presented to the trial court his Certificate
of Live Birth No. 477 (Exhibit "D") and a photograph
(Exhibit "C") taken during the burial of the deceased.
Regarding the genuineness and probative value of
Exhibit "D", the trial court made the following findings,
affirmed by the Appellate Court:
"It was duly established in Court that the
Certificate of Live Birth No. 477 in the name of
Juan E. Locsin, Jr., the original having been
testified to by Rosita Vencer, exists in the files
of the Local Civil Registrar of Iloilo. Petitioner
since birth enjoyed the open and continuous
status of an acknowledged natural child of Juan
C. Locsin, Sr., he together with his mother was
summoned to attend to the burial as evidenced
by a picture of relatives facing the coffin of the
deceased with petitioner and his mother in the
picture. x x x. It was duly proven at the trial that
the standard signatures presented by
oppositors were not in public document and
may also be called questioned document
46
 whereas in the certificate of live birth No. 477,
the signature of Juan C. Locsin, Sr. was the
original or primary evidence. The anomalous
and suspicious characteristic of the bound
volume where the certificate of live birth as
alleged by oppositors was found was testified
to and explained by Rosita Vencer of the office
of the Local Civil Registrar that they run out of
forms in 1957 and requisitioned forms.
However, the forms sent to them was the 1958
revised form and that she said their office
usually paste the pages of the bound volume if
destroyed. All the doubts regarding the
authenticity and genuineness of the signatures
of Juan C. Locsin, Sr. and Emilio Tomesa, and
the suspicious circumstances of the bound
volume were erased due to the explanation of
Rosita Vencer."
This Court cannot subscribe to the above findings.
Pursuant to Section 12 of Act 3753 (An Act to Establish a
Civil Register), the records of births from all cities and
municipalities in the Philippines are officially and
regularly forwarded to the Civil Registrar General in
Metro Manila by the Local Civil Registrars. Since the
records of births cover several decades and come from all
parts of the country, to merely access them in the Civil
Registry General requires expertise. To locate one single
birth record from the mass, a regular employee, if not
more, has to be engaged. It is highly unlikely that any of
these employees in Metro Manila would have reason to
falsify a particular 1957 birth record originating from the
Local Civil Registry of Iloilo City.
With respect to Local Civil Registries, access thereto by
interested parties is obviously easier. Thus, in proving the
authenticity of Exhibit "D," more convincing evidence
than those considered by the trial court should have
been presented by respondent.
The trial court held that the doubts respecting the
genuine nature of Exhibit "D" are dispelled by the
testimony of Rosita Vencer, Local Civil Registrar of Iloilo
City.
The event about which she testified on March 7, 1994
was the record of respondent's birth which took place on
October 22, 1956, on 37 or 38 years ago. The Local Civil
Registrar of Iloilo City at that time was Emilio G. Tomesa.
Necessarily, Vencer's knowledge of respondent's birth
record allegedly made and entered in the Local Civil
Registry in January, 1957 was based merely on her
general impressions of the existing records in that Office.
When entries in the Certificate of Live Birth recorded in
the Local Civil Registry vary from those appearing in the
copy transmitted to the Civil Registry General, pursuant
to the Civil Registry Law, the variance has to be clarified
in more persuasive and rational manner. In this regard,
we find Vencer's explanation not convincing.
Respondent's Certificate of Live Birth No. 477 (Exhibit
"D") was recorded in a December 1, 1958 revised form.
Asked how a 1958 form could be used in 1957 when
respondent's birth was recorded, Vencer answered that "x
x x during that time, maybe the forms in 1956 were
already exhausted so the former Civil Registrar had
requested for a new form and they sent us the 1958
Revised Form."13
The answer is a "maybe", a mere supposition of an event.
It does not satisfactorily explain how a Revised Form
dated December 1, 1958 could have been used
on January 30, 1957 or almost (2) years earlier.
Upon the other hand, Exhibit "8" of the petitioners found
in the Civil Registrar General in Metro Manila is on
Municipal Form No 102, revised in July, 1956. We find no
irregularity here. Indeed, it is logical to assume that the
1956 forms would continue to be used several years
thereafter. But for a 1958 form to be used in 1957 is
unlikely.
There are other indications of irregularity relative to
Exhibit "D." The back cover of the 1957 bound volume in
the Local Civil Registry of Iloilo is torn. Exhibit "D" is
merely pasted with the bound volume, not sewn like the
other entries.
The documents bound into one volume are original
copies. Exhibit "D" is a carbon copy of the alleged
original and sticks out like a sore thumb because the
entries therein are typewritten, while the records of all
other certificates are handwritten. Unlike the contents of
those other certificates, Exhibit "D" does not indicate
important particulars, such as the alleged father's
religion, race, occupation, address and business. The
space which calls for an entry of the legitimacy of the
child is blank. On the back page of Exhibit "D", there is a
purported signature of the alleged father, but the blanks
calling for the date and other details of his Residence
Certificate were not filled up.
When asked to explain the torn back cover of the bound
volume, Vencer had no answer except to state, "I am not
aware of this because I am not a bookbinder." As to why
Exhibit "D" was not sewn or bound into the volume, she
explained as follows:
47
 "COURT:
I will butt in. Are these instances
where your employees would only
paste a document like this Certificate
of Live Birth?
WITNESS:
Yes, Your Honor, we are pasting some
of the leaves just to replace the
record. Sometimes we just have it
pasted in the record when the leaves
were taken.
ATTY. TIROL:
You mean to say you allow the leaves
of the bound volume to be taken out?
A: No sir. It is because sometimes the leaves are
detached so we have to paste
them."14(Emphasis ours)
There is no explanation why out of so many certificates,
this vital document, Exhibit "D", was merely pasted with
the volume.
Vencer's testimony suffers from infirmities. Far from
explaining the anomalous circumstances surrounding
Exhibit "D", she actually highlighted the suspicious
circumstances surrounding its existence.
The records of the instant case adequately support a
finding that Exhibit "8" for the petitioners, not
respondent's Exhibit "D", should have been given more
faith and credence by the courts below.
The Civil Registry Law requires, inter alia, the Local Civil
Registrar to send copies of registrable certificates and
documents presented to them for entry to the Civil
Registrar General, thus:
"Duties of Local Civil Registrar. — Local civil
registrars shall (a) file registrable certificates
and documents presented to them for entry; (b)
compile the same monthly and prepare and
send any information required of them by the
Civil-Registrar; (c) issue certified transcripts or
copies of any document registered upon
payment of proper fees; (d) order the binding,
properly classified, of all certificates or
documents registered during the year; (e) send
to the Civil Registrar-General, during the first
ten days of each month, a copy of the entries
made during the preceding month, for filing; (f)
index the same to facilitate search and
identification in case any information is
required; and (g) administer oaths, free of
charge, for civil register purposes"15 (Emphasis
ours)
In light of the above provisions, a copy of the document
sent by the Local Civil Registrar to the Civil Registrar
General should be identical in form and in substance with
the copy being kept by the latter. In the instant case,
Exhibit "8", as transmitted to the Civil Registrar General is
not identical with Exhibit "D" as appearing in the records
of the Local Civil Registrar of Iloilo City. Such
circumstance should have aroused the suspicion of both
the trial court and the Court of Appeals and should have
impelled them to declare Exhibit "D" a spurious
document.
Exhibit "8" shows that respondent's record of birth was
made by his mother. In the same Exhibit "8", the
signature and name of Juan C. Locsin listed as
respondent's father and the entry that he and Amparo
Escamilla were married in Oton, Iloilo on November 28,
1954 do not appear.
In this connection, we echo this Court's pronouncement
in Roces vs. Local Civil Registrar16 that:
"Section 5 of Act No. 3753 and Article 280 of
the Civil Code of the Philippines . . . explicitly
prohibit, not only the naming of the father of
the child born out of wedlock, when the birth
certificate, or the recognition, is not filed or
made by him, but also, the statement of any
information or circumstances by which he could
be identified. Accordingly, the Local Civil
Registrar had no authority to make or record
the paternity of an illegitimate child upon the
information of a third person and the certificate
of birth of an illegitimate child, when signed
only by the mother of the latter, is incompetent
evidence of fathership of said child." (Emphasis
ours)
The Roces ruling regarding illegitimate filiation is further
elucidated in Fernandez vs. Court of Appeals17 where this
Court said that "a birth certificate not signed by the
alleged father (who had no hand in its preparation) is not
competent evidence of paternity."
A birth certificate is a formidable piece of evidence
prescribed by both the Civil Code and Article 172 of the
Family Code for purposes of recognition and filiation.
48
However, birth certificate offers only prima facie evidence
of filiation and may be refuted by contrary evidence.18 Its
evidentiary worth cannot be sustained where there exists
strong, complete and conclusive proof of its falsity or
nullity. In this case, respondent's Certificate of Live Birth
No. 477 entered in the records of the Local Civil Registry
(from which Exhibit "D" was machine copied) has all the
badges of nullity. Without doubt, the authentic copy on
file in that office was removed and substituted with a
falsified Certificate of Live Birth.
At this point, it bears stressing the provision of Section
23, Rule 132 of the Revised Rules of Court that
"(d)ocuments consisting of entries in public records made
in the performance of a duty by a public officer are prima
facie evidence of the facts therein stated." In this case,
the glaring discrepancies between the two Certificates of
Live Birth (Exhibits "D" and "8") have overturned the
genuineness of Exhibit "D" entered in the Local Civil
Registry. What is authentic is Exhibit "8" recorded in the
Civil Registry General.
Incidentally, respondent's photograph with his mother
near the coffin of the late Juan C. Locsin cannot and will
not constitute proof of filiation,19 lest we recklessly set a
very dangerous precedent that would encourage and
sanction fraudulent claims. Anybody can have a picture
taken while standing before a coffin with others and
thereafter utilize it in claiming the estate of the deceased.
Respondent Juan E. Locsin, Jr. failed to prove his filiation
with the late Juan C. Locsin, Sr.. His Certificate of Live
Birth No. 477 (Exhibit "D") is spurious. Indeed, respondent
is not an interested person within the meaning of Section
2, Rule 79 of the Revised Rules of Court entitled to the
issuance of letters of administration.
WHEREFORE, the petition is hereby GRANTED. The
challenged Decision and Resolution of the Court of
Appeals in CA-G.R. No. 57708 are REVERSED and SET
ASIDE. Respondent's petition for issuance of letters of
administration is ORDERED DISMISSED.SO ORDERED.
G.R. No. 140500 January 21, 2002
ERNESTINA BERNABE, petitioner,
vs.
CAROLINA ALEJO as guardian ad litem for the minor
ADRIAN BERNABE, respondent.
The right to seek recognition granted by the Civil Code to
illegitimate children who were still minors at the time the
Family Code took effect cannot be impaired or taken
away. The minors have up to four years from attaining
majority age within which to file an action for
recognition.
Statement of the Case
Before us is a Petition1 for Review on Certiorari under
Rule 45 of the Rules of Court, praying for (1) the
nullification of the July 7, 1999 Court of Appeals2 (CA)
Decision3 in CA-GR CV No. 51919 and the October 14,
1999 CA Resolution4 denying petitioner’s Motion for
Reconsideration, as well as (2) the reinstatement of the
two Orders issued by the Regional Trial Court (RTC) of
Pasay City (Branch 109) concerning the same case. The
dispositive portion of the assailed Decision reads as
follows:
"WHEREFORE, premises considered, the order of the
lower court dismissing Civil Case No. 94-0562 is
REVERSED and SET ASIDE. Let the records of this case be
remanded to the lower court for trial on the merits."5
The Facts
The undisputed facts are summarized by the Court of
Appeals in this wise:
"The late Fiscal Ernesto A. Bernabe allegedly fathered a
son with his secretary of twenty-three (23) years, herein
plaintiff-appellant Carolina Alejo. The son was born on
September 18, 1981 and was named Adrian Bernabe.
Fiscal Bernabe died on August 13, 1993, while his wife
Rosalina died on December 3 of the same year, leaving
Ernestina as the sole surviving heir.
"On May 16, 1994, Carolina, in behalf of Adrian, filed the
aforesaid complaint praying that Adrian be declared an
acknowledged illegitimate son of Fiscal Bernabe and as
such he (Adrian) be given his share in Fiscal Bernabe’s
estate, which is now being held by Ernestina as the sole
surviving heir.
"On July 16, 1995, the Regional Trial Court dismissed the
complaint, ruling that under the provisions of the Family
Code as well as the case of Uyguangco vs. Court of
Appeals, the complaint is now barred x x x."6
Orders of the Trial Court
In an Order dated July 26, 1995, the trial court granted
Ernestina Bernabe’s Motion for Reconsideration of the
trial court’s Decision and ordered the dismissal of the
Complaint for recognition. Citing Article 175 of the
Family Code, the RTC held that the death of the putative
father had barred the action.
49
In its Order dated October 6, 1995, the trial court added
that since the putative father had not acknowledged or
recognized Adrian Bernabe in writing, the action for
recognition should have been filed during the lifetime of
the alleged father to give him the opportunity to either
affirm or deny the child’s filiation.
Ruling of the Court of Appeals
On the other hand, the Court of Appeals ruled that in the
interest of justice, Adrian should be allowed to prove that
he was the illegitimate son of Fiscal Bernabe. Because the
boy was born in 1981, his rights are governed by Article
285 of the Civil Code, which allows an action for
recognition to be filed within four years after the child
has attained the age of majority. The subsequent
enactment of the Family Code did not take away that
right.
Hence, this appeal.7
Issues
In her Memorandum,8 petitioner raises the following
issues for our consideration:
I mother a document should appear of which
"Whether or not respondent has a cause of action to file
a case against petitioner, the legitimate daughter of the
putative father, for recognition and partition with
accounting after the putative father’s death in the
absence of any written acknowledgment of paternity by
the latter.
II
"Whether or not the Honorable Court of Appeals erred in
ruling that respondents had four years from the
attainment of minority to file an action for recognition as
provided in Art. 285 of the Civil Code, in complete
disregard of its repeal by the [express] provisions of the
Family Code and the applicable jurisprudence as held by
the Honorable Court of Appeals.
III
"Whether or not the petition for certiorari filed by the
petition[er] is fatally defective for failure to implead the
Court of Appeals as one of the respondents."9
The Court’s Ruling
The Petition has no merit.
First and Second Issues: Period to File Action for
Recognition
Because the first and the second issues are interrelated,
we shall discuss them jointly.
Petitioner contends that respondent is barred from filing
an action for recognition, because Article 285 of the Civil
Code has been supplanted by the provisions of the
Family Code. She argues that the latter Code should be
given retroactive effect, since no vested right would be
impaired. We do not agree.
Article 285 of the Civil Code provides the period for filing
an action for recognition as follows:
"ART. 285. The action for the recognition of natural
children may be brought only during the lifetime of the
presumed parents, except in the following cases:
(1) If the father or mother died during the
minority of the child, in which case the latter
may file the action before the expiration of four
years from the attainment of his majority;
(2) If after the death of the father or of the
nothing had been heard and in which either or
both parents recognize the child.
"In this case, the action must be commenced within four
years from the finding of the document."
The two exceptions provided under the foregoing
provision, have however been omitted by Articles 172,
173 and 175 of the Family Code, which we quote:
"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
50
 (2) Any other means allowed by the Rules of
Court and special laws."
"ART. 173. The action to claim legitimacy may be brought
by the child during his or her lifetime and shall be
transmitted to the heirs should the child die during
minority or in a state of insanity. In these cases, the heirs
shall have a period of five years within which to institute
the action.
"The action already commenced by the child shall survive
notwithstanding the death of either or both of the
parties."
"ART. 175. Illegitimate children may establish their
illegitimate filiation in the same way and on the same,
evidence as legitimate 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."
Under the new law, an action for the recognition of an
illegitimate child must be brought within the lifetime of
the alleged parent. The Family Code makes no distinction
on whether the former was still a minor when the latter
died. Thus, the putative parent is given by the new Code
a chance to dispute the claim, considering that
"illegitimate children are usually begotten and raised in
secrecy and without the legitimate family being aware of
their existence. x x x The putative parent should thus be
given the opportunity to affirm or deny the child’s
filiation, and this, he or she cannot do if he or she is
already dead."10
Nonetheless, the Family Code provides the caveat that
rights that have already vested prior to its enactment
should not be prejudiced or impaired as follows:
"ART. 255. This Code shall have retroactive effect insofar
as it does not prejudice or impair vested or acquired
rights in accordance with the Civil Code or other laws."
The crucial issue to be resolved therefore is whether
Adrian’s right to an action for recognition, which was
granted by Article 285 of the Civil Code, had already
vested prior to the enactment of the Family Code. Our
answer is affirmative.
A vested right is defined as "one which is absolute,
complete and unconditional, to the exercise of which no
obstacle exists, and which is immediate and perfect in
itself and not dependent upon a contingency x x
x."11 Respondent however contends that the filing of an
action for recognition is procedural in nature and that "as
a general rule, no vested right may attach to [or] arise
from procedural laws."12
Bustos v. Lucero13 distinguished substantive from
procedural law in these words:
"x x x. Substantive law creates substantive rights and the
two terms in this respect may be said to be synonymous.
Substantive rights is a term which includes those rights
which one enjoys under the legal system prior to the
disturbance of normal relations. Substantive law is that
part of the law which creates, defines and regulates
rights, or which regulates the rights and duties which
give rise to a cause of action; that part of the law which
courts are established to administer; as opposed to
adjective or remedial law, which prescribes the method of
enforcing rights or obtains redress for their
invasion."14 (Citations omitted)
Recently, in Fabian v. Desierto,15 the Court laid down the
test for determining whether a rule is procedural or
substantive:
"[I]n determining whether a rule prescribed by the
Supreme Court, for the practice and procedure of the
lower courts, abridges, enlarges, or modifies any
substantive right, the test is whether the rule really
regulates procedure, that is, the judicial process for
enforcing rights and duties recognized by substantive
law and for justly administering remedy and redress for a
disregard or infraction of them. If the rule takes away a
vested right, it is not procedural. If the rule creates a right
such as the right to appeal, it may be classified as a
substantive matter; but if it operates as a means of
implementing an existing right then the rule deals merely
with procedure."16
Applying the foregoing jurisprudence, we hold that
Article 285 of the Civil Code is a substantive law, as it
gives Adrian the right to file his petition for recognition
within four years from attaining majority age. Therefore,
the Family Code cannot impair or take Adrian’s right to
file an action for recognition, because that right had
already vested prior to its enactment.
Uyguangco v. Court of Appeals17 is not applicable to the
case at bar, because the plaintiff therein sought
recognition as an illegitimate child when he was no
longer a minor. On the other hand, in Aruego Jr. v. Court
of Appeals18 the Court ruled that an action for
recognition filed while the Civil Code was in effect should
not be affected by the subsequent enactment of the
Family Code, because the right had already vested.
51
Not Limited to Natural Children
To be sure, Article 285 of the Civil Code refers to the
action for recognition of "natural" children. Thus,
petitioner contends that the provision cannot be availed
of by respondent, because at the time of his conception,
his parents were impeded from marrying each other. In
other words, he is not a natural child.
A "natural child" is one whose parents, at the time of
conception, were not disqualified by any legal
impediment from marrying each other. Thus, in De
Santos v. Angeles,19 the Court explained:
"A child’s parents should not have been disqualified to
marry each other at the time of conception for him to
qualify as a ‘natural child.’"20
A strict and literal interpretation of Article 285 has
already been frowned upon by this Court in the aforesaid
case of Aruego, which allowed minors to file a case for
recognition even if their parents were disqualified from
marrying each other. There, the Complaint averred that
the late Jose Aruego Sr., a married man, had an
extramarital liason with Luz Fabian. Out of this
relationship were born two illegitimate children who in
1983 filed an action for recognition. The two children
were born in 1962 and 1963, while the alleged putative
father died in 1982. In short, at the time of their
conception, the two children’s parents were legally
disqualified from marrying each other. The Court allowed
the Complaint to prosper, even though it had been filed
almost a year after the death of the presumed father. At
the time of his death, both children were still minors.
Moreover, in the earlier case Divinagracia v. Rovira,21 the
Court said that the rules on voluntary and compulsory
acknowledgment of natural children, as well as the
prescriptive period for filing such action, may likewise be
applied to spurious children. Pertinent portions of the
case are quoted hereunder:
"The so-called spurious children, or illegitimate children
other than natural children, commonly known as
bastards, include those adulterous children or those born
out of wedlock to a married woman cohabiting with a
man other than her husband or to a married man
cohabiting with a woman other than his wife. They are
entitled to support and successional rights. But their
filiation must be duly proven.
"How should their filiation be proven? Article 289 of the
Civil Code allows the investigation of the paternity or
maternity or spurious children under the circumstances
specified in articles 283 and 284 of the Civil Code. The
implication is that the rules on compulsory recognition of
natural children are applicable to spurious children.
"Spurious children should not be in a better position than
natural children. The rules on proof of filiation of natural
children or the rules on voluntary and compulsory
acknowledgment for natural children may be applied to
spurious children.
"That does not mean that spurious children should be
acknowledged, as that term is used with respect to
natural children. What is simply meant is that the
grounds or instances for the acknowledgment of natural
children are utilized to establish the filiation of spurious
children.
"A spurious child may prove his filiation by means of a
record of birth, a will, a statement before a court of
record, or in any authentic writing. These are the modes
of voluntary recognition of natural children.
"In case there is no evidence on the voluntary recognition
of the spurious child, then his filiation may be established
by means of the circumstances or grounds for
compulsory recognition prescribed in the
aforementioned articles 283 and 284.
"The prescriptive period for filing the action for
compulsory recognition in the case of natural children, as
provided for in article 285 of the Civil Code, applies to
spurious children."22 (Citations omitted, italics supplied)
Thus, under the Civil Code, natural children have superior
successional rights over spurious
ones.23 However, Rovira treats them as equals with
respect to other rights, including the right to recognition
granted by Article 285.
To emphasize, illegitimate children who were still minors
at the time the Family Code took effect and whose
putative parent died during their minority are thus given
the right to seek recognition (under Article 285 of the
Civil Code) for a period of up to four years from attaining
majority age. This vested right was not impaired or taken
away by the passage of the Family Code.
Indeed, our overriding consideration is to protect the
vested rights of minors who could not have filed suit, on
their own, during the lifetime of their putative parents. As
respondent aptly points out in his Memorandum,24 the
State as parens patriae should protect a minor’s right.
Born in 1981, Adrian was only seven years old when the
Family Code took effect and only twelve when his alleged
father died in 1993. The minor must be given his day in
court.
52
Third Issue: Failure to Implead the CA
Under Section 4(a) of Rule 45 of the current Rules of
Court, it is no longer required to implead "the lower
courts or judges x x x either as petitioners or
respondents." Under Section 3, however, the lower
tribunal should still be furnished a copy of the petition.
Hence, the failure of petitioner to implead the Court of
Appeals as a party is not a reversible error; it is in fact the
correct procedure.
WHEREFORE, the Petition is hereby DENIED and the
assailed Decision and Resolution AFFIRMED. Costs
against petitioner.
SO ORDERED.
G.R. No. 155733 January 27, 2006
IN THE MATTER OF THE INTESTATE ESTATES OF THE
DECEASED JOSEFA DELGADO AND GUILLERMO RUSTIA
CARLOTA DELGADO VDA. DE DE LA ROSA, et.al
Petitioners,
vs.
HEIRS OF MARCIANA RUSTIA VDA. DE DAMIAN, et. al,
Respondents.3
CORONA, J.:
In this petition for review on certiorari, petitioners seek to
reinstate the May 11, 1990 decision of the Regional Trial
Court (RTC) of Manila, Branch 55,4 in SP Case No. 97668,
which was reversed and set aside by the Court of Appeals
in its decision5 dated October 24, 2002.
FACTS OF THE CASE
This case concerns the settlement of the intestate estates
of Guillermo Rustia and Josefa Delgado.6 The main issue
in this case is relatively simple: who, between petitioners
and respondents, are the lawful heirs of the decedents.
However, it is attended by several collateral issues that
complicate its resolution.
The claimants to the estates of Guillermo Rustia and
Josefa Delgado may be divided into two groups: (1) the
alleged heirs of Josefa Delgado, consisting of her half-
and full-blood siblings, nephews and nieces, and
grandnephews and grandnieces, and (2) the alleged heirs
of Guillermo Rustia, particularly, his sisters,7 his nephews
and nieces,8 his illegitimate child,9 and the de
facto adopted child (ampun-ampunan)
10
of the
decedents.
The alleged heirs of Josefa Delgado
The deceased Josefa Delgado was the daughter of
Felisa11 Delgado by one Lucio Campo. Aside from Josefa,
five other children were born to the couple, namely,
Nazario, Edilberta, Jose, Jacoba, and Gorgonio, all
surnamed Delgado. Felisa Delgado was never married to
Lucio Campo, hence, Josefa and her full-blood siblings
were all natural children of Felisa Delgado.
However, Lucio Campo was not the first and only man in
Felisa Delgado’s life. Before him was Ramon Osorio12 with
whom Felisa had a son, Luis Delgado. But, unlike her
relationship with Lucio Campo which was admittedly one
without the benefit of marriage, the legal status of
Ramon Osorio’s and Felisa Delgado’s union is in dispute.
The question of whether Felisa Delgado and Ramon
Osorio ever got married is crucial to the claimants
because the answer will determine whether their
successional rights fall within the ambit of the rule
against reciprocal intestate succession between
legitimate and illegitimate relatives.13 If Ramon Osorio
and Felisa Delgado had been validly married, then their
only child Luis Delgado was a legitimate half-blood
brother of Josefa Delgado and therefore excluded from
the latter’s intestate estate. He and his heirs would be
barred by the principle of absolute separation between
the legitimate and illegitimate families. Conversely, if the
couple were never married, Luis Delgado and his heirs
would be entitled to inherit from Josefa Delgado’s
intestate estate, as they would all be within the
illegitimate line.
Petitioners allege that Ramon Osorio and Felisa Delgado
were never married. In support thereof, they assert that
no evidence was ever presented to establish it, not even
so much as an allegation of the date or place of the
alleged marriage. What is clear, however, is that Felisa
retained the surname Delgado. So did Luis, her son with
Ramon Osorio. Later on, when Luis got married,
his Partida de Casamiento14 stated that he was "hijo
natural de Felisa Delgado" (the natural child of Felisa
Delgado),15 significantly omitting any mention of the
name and other circumstances of his
father.16 Nevertheless, oppositors (now respondents)
insist that the absence of a record of the alleged
marriage did not necessarily mean that no marriage ever
took place.
Josefa Delgado died on September 8, 1972 without a will.
She was survived by Guillermo Rustia and some collateral
relatives, the petitioners herein. Several months later, on
June 15, 1973, Guillermo Rustia executed an affidavit of
self-
53
adjudication of the remaining properties comprising her
estate.
The marriage of Guillermo Rustia and Josefa Delgado
Sometime in 1917, Guillermo Rustia proposed marriage
to Josefa Delgado17 but whether a marriage in fact took
place is disputed. According to petitioners, the two
eventually lived together as husband and wife but were
never married. To prove their assertion, petitioners point
out that no record of the contested marriage existed in
the civil registry. Moreover, a baptismal certificate
naming Josefa Delgado as one of the sponsors referred
to her as "Señorita" or unmarried woman.
The oppositors (respondents here), on the other hand,
insist that the absence of a marriage certificate did not of
necessity mean that no marriage transpired. They
maintain that Guillermo Rustia and Josefa Delgado were
married on June 3, 1919 and from then on lived together
as husband and wife until the death of Josefa on
September 8, 1972. During this period spanning more
than half a century, they were known among their
relatives and friends to have in fact been married. To
support their proposition, oppositors presented the
following pieces of evidence:
1. Certificate of Identity No. 9592 dated
[December 1, 1944] issued to Mrs. Guillermo J.
Rustia by Carlos P. Romulo, then Resident
Commissioner to the United States of the
Commonwealth of the Philippines;
2. Philippine Passport No. 4767 issued to Josefa
D. Rustia on June 25, 1947;
3. Veterans Application for Pension or
Compensation for Disability Resulting from
Service in the Active Military or Naval Forces of
the United States- Claim No. C-4, 004, 503 (VA
Form 526) filed with the Veterans
Administration of the United States of America
by Dr. Guillermo J. Rustia wherein Dr. Guillermo
J. Rustia himself [swore] to his marriage to
Josefa Delgado in Manila on 3 June 1919;18
4. Titles to real properties in the name of
Guillermo Rustia indicated that he was married
to Josefa Delgado.
The alleged heirs of Guillermo Rustia
Guillermo Rustia and Josefa Delgado never had any
children. With no children of their own, they took into
their home the youngsters Guillermina Rustia Rustia and
Nanie Rustia. These children, never legally adopted by
the couple, were what was known in the local dialect
as ampun-ampunan.
During his life with Josefa, however, Guillermo Rustia did
manage to father an illegitimate child,19 the intervenor-
respondent Guillerma Rustia, with one Amparo
Sagarbarria. According to Guillerma, Guillermo Rustia
treated her as his daughter, his own flesh and blood, and
she enjoyed open and continuous possession of that
status from her birth in 1920 until her father’s demise. In
fact, Josefa Delgado’s obituary which was prepared by
Guillermo Rustia, named the intervenor-respondent as
one of their children. Also, her report card from the
University of Santo Tomas identified Guillermo Rustia as
her parent/guardian.20
Oppositors (respondents here) nonetheless posit that
Guillerma Rustia has no interest in the intestate estate of
Guillermo Rustia as she was never duly acknowledged as
an illegitimate child. They contend that her right to
compulsory acknowledgement prescribed when
Guillermo died in 1974 and that she cannot claim
voluntary acknowledgement since the documents she
presented were not the authentic writings prescribed by
the new Civil Code.21
On January 7, 1974, more than a year after the death of
Josefa Delgado, Guillermo Rustia filed a petition for the
adoption22 of their ampun-ampunan Guillermina Rustia.
He stated under oath "[t]hat he ha[d] no legitimate,
legitimated, acknowledged natural children or natural
children by legal fiction."23 The petition was overtaken by
his death on February 28, 1974.
Like Josefa Delgado, Guillermo Rustia died without a will.
He was survived by his sisters Marciana Rustia vda.
de Damian and Hortencia Rustia-Cruz, and by the
children of his predeceased brother Roman Rustia Sr.,
namely, Josefina Rustia Albano, Virginia Rustia Paraiso,
Roman Rustia, Jr., Sergio Rustia, Francisco Rustia and
Leticia Rustia Miranda.24
ANTECEDENT PROCEEDINGS
On May 8, 1975, Luisa Delgado vda. de Danao, the
daughter of Luis Delgado, filed the original petition for
letters of administration of the intestate estates of the
"spouses Josefa Delgado and Guillermo Rustia" with the
RTC of Manila, Branch 55.25 This petition was opposed by
the following: (1) the sisters of Guillermo Rustia, namely,
Marciana Rustia vda. de Damian and Hortencia Rustia-
Cruz;26 (2) the heirs of Guillermo Rustia’s late brother,
Roman Rustia, Sr., and (3) the ampun-
ampunan Guillermina Rustia Rustia. The opposition was
54
grounded on the theory that Luisa Delgado vda.
de Danao and the other claimants were barred under the
law from inheriting from their illegitimate half-blood
relative Josefa Delgado.
In November of 1975, Guillerma Rustia filed a motion to
intervene in the proceedings, claiming she was the only
surviving descendant in the direct line of Guillermo
Rustia. Despite the objections of the oppositors
(respondents herein), the motion was granted.
On April 3, 1978, the original petition for letters of
administration was amended to state that Josefa Delgado
and Guillermo Rustia were never married but had merely
lived together as husband and wife.
On January 24, 1980, oppositors (respondents herein)
filed a motion to dismiss the petition in the RTC insofar
as the estate of Guillermo Rustia was concerned. The
motion was denied on the ground that the interests of
the petitioners and the other claimants remained in issue
and should be properly threshed out upon submission of
evidence.
On March 14, 1988, Carlota Delgado vda. de de la Rosa
substituted for her sister, Luisa Delgado vda. de Danao,
who had died on May 18, 1987.
On May 11, 1990, the RTC appointed Carlota
Delgado vda. de de la Rosa as administratrix of both
estates.27 The dispositive portion of the decision read:
WHEREFORE, in view of all the foregoing, petitioner and
her co-claimants to the estate of the late Josefa Delgado
listed in the Petitions, and enumerated elsewhere in this
Decision, are hereby declared as the only legal heirs of
the said Josefa Delgado who died intestate in the City of
Manila on September 8, 1972, and entitled to partition
the same among themselves in accordance with the
proportions referred to in this Decision.
Similarly, the intervenor Guillerma S. Rustia is hereby
declared as the sole and only surviving heir of the late Dr.
Guillermo Rustia, and thus, entitled to the entire estate of
the said decedent, to the exclusion of the oppositors and
the other parties hereto.
The Affidavit of Self-Adjudication of the estate of Josefa
Delgado executed by the late Guillermo J. Rustia on June
15, 1973 is hereby SET ASIDE and declared of no force
and effect.
As the estates of both dece[d]ents have not as yet been
settled, and their settlement [is] considered consolidated
in this proceeding in accordance with law, a single
administrator therefor is both proper and necessary, and,
as the petitioner Carlota Delgado Vda. de dela Rosa has
established her right to the appointment as
administratrix of the estates, the Court hereby APPOINTS
her as the ADMINISTRATRIX of the intestate estate of the
decedent JOSEFA DELGADO in relation to the estate of
DR. GUILLERMO J. RUSTIA.
Accordingly, let the corresponding LETTERS OF
ADMINISTRATION issue to the petitioner CARLOTA
DELGADO VDA. DE DE LA ROSA upon her filing of the
requisite bond in the sum of FIVE HUNDRED THOUSAND
PESOS (P500,000.00).
Finally, oppositor GUILLERMINA RUSTIA RUSTIA is hereby
ordered to cease and desist from her acts of
administration of the subject estates, and is likewise
ordered to turn over to the appointed administratix all
her collections of the rentals and income due on the
assets of the estates in question, including all documents,
papers, records and titles pertaining to such estates to
the petitioner and appointed administratix CARLOTA
DELGADO VDA. DE DE LA ROSA, immediately upon
receipt of this Decision. The same oppositor is hereby
required to render an accounting of her actual
administration of the estates in controversy within a
period of sixty (60) days from receipt hereof.
SO ORDERED.28
On May 20, 1990, oppositors filed an appeal which was
denied on the ground that the record on appeal was not
filed on time.29 They then filed a petition for certiorari
and mandamus30 which was dismissed by the Court of
Appeals.31 However, on motion for reconsideration and
after hearing the parties’ oral arguments, the Court of
Appeals reversed itself and gave due course to
oppositors’ appeal in the interest of substantial justice.32
In a petition for review to this Court, petitioners assailed
the resolution of the Court of Appeals, on the ground
that oppositors’ failure to file the record on appeal within
the reglementary period was a jurisdictional defect which
nullified the appeal. On October 10, 1997, this Court
allowed the continuance of the appeal. The pertinent
portion of our decision33 read:
As a rule, periods prescribed to do certain acts must be
followed. However, under exceptional circumstances, a
delay in the filing of an appeal may be excused on
grounds of substantial justice.
xxx xxx xxx
55
The respondent court likewise pointed out the trial
court’s pronouncements as to certain matters of
substance, relating to the determination of the heirs of
the decedents and the party entitled to the
administration of their estate, which were to be raised in
the appeal, but were barred absolutely by the denial of
the record on appeal upon too technical ground of late
filing.
xxx xxx xxx
In this instance, private respondents’ intention to raise
valid issues in the appeal is apparent and should not
have been construed as an attempt to delay or prolong
the administration proceedings.
xxx xxx xxx
A review of the trial court’s decision is needed.
xxx xxx xxx
WHEREFORE, in view of the foregoing considerations, the
Court hereby AFFIRMS the Resolution dated November
27, 1991 of the Court of Appeals in CA-G.R. SP No. 23415,
for the APPROVAL of the private respondents’ Record on
Appeal and the CONTINUANCE of the appeal from the
Manila, Branch LV Regional Trial Court’s May 11, 1990
decision.
SO ORDERED.
Acting on the appeal, the Court of Appeals34 partially set
aside the trial court’s decision. Upon motion for
reconsideration,35 the Court of Appeals amended its
earlier decision.36 The dispositive portion of the amended
decision read:
With the further modification, our assailed decision
is RECONSIDERED and VACATED. Consequently, the
decision of the trial court is REVERSED and SET ASIDE. A
new one is hereby RENDERED declaring: 1.) Dr. Guillermo
Rustia and Josefa Delgado Rustia to have been legally
married; 2.) the intestate estate of Dr. Guillermo Rustia,
Jacoba Delgado-Encinas and the children of Gorgonio
Delgado (Campo) entitled to partition among themselves
the intestate estate of Josefa D. Rustia in accordance with
the proportion referred to in this decision; 3.) the
oppositors-appellants as the legal heirs of the late Dr.
Guillermo Rustia and thereby entitled to partition his
estate in accordance with the proportion referred to
herein; and 4.) the intervenor-appellee Guillerma S. Rustia
as ineligible to inherit from the late Dr. Guillermo Rustia;
thus revoking her appointment as administratrix of his
estate.
The letters of administration of the intestate estate of Dr.
Guillermo Rustia in relation to the intestate estate of
Josefa Delgado shall issue to the nominee of the
oppositors-appellants upon his or her qualification and
filing of the requisite bond in the sum of FIVE HUNDRED
THOUSAND PESOS (P500,000.00).
Oppositor-appellant Guillermina Rustia Rustia is hereby
ordered to cease and desist from her acts of
administration of the subject estates and to turn over to
the appointed administrator all her collections of the
rentals and incomes due on the assets of the estates in
question, including all documents, papers, records and
titles pertaining to such estates to the appointed
administrator, immediately upon notice of his
qualification and posting of the requisite bond, and to
render an accounting of her (Guillermina Rustia Rustia)
actual administration of the estates in controversy within
a period of sixty (60) days from notice of the
administrator’s qualification and posting of the bond.
The issue of the validity of the affidavit of self-
adjudication executed by Dr. Guillermo Rustia on June 15,
1973 is REMANDED to the trial court for further
proceedings to determine the extent of the shares of
Jacoba Delgado-Encinas and the children of Gorgonio
Delgado (Campo) affected by the said adjudication.
Hence, this recourse.
The issues for our resolution are:
1. whether there was a valid marriage between
Guillermo Rustia and Josefa Delgado;
2. who the legal heirs of the decedents
Guillermo Rustia and Josefa Delgado are;
3. who should be issued letters of
administration.
The marriage of Guillermo Rustia and Josefa Delgado
A presumption is an inference of the existence or non-
existence of a fact which courts are permitted to draw
from proof of other facts. Presumptions are classified into
presumptions of law and presumptions of fact.
Presumptions of law are, in turn, either conclusive or
disputable.37
Rule 131, Section 3 of the Rules of Court provides:
56
Sec. 3. Disputable presumptions. — The following
presumptions are satisfactory if uncontradicted, but may
be contradicted and overcome by other evidence:
xxx xxx xxx
(aa) That a man and a woman deporting themselves as
husband and wife have entered into a lawful contract of
marriage;
xxx xxx xxx
In this case, several circumstances give rise to the
presumption that a valid marriage existed between
Guillermo Rustia and Josefa Delgado. Their cohabitation
of more than 50 years cannot be doubted. Their family
and friends knew them to be married. Their reputed
status as husband and wife was such that even the
original petition for letters of administration filed by Luisa
Delgado vda. de Danao in 1975 referred to them as
"spouses."
Yet, petitioners maintain that Josefa Delgado and
Guillermo Rustia had simply lived together as husband
and wife without the benefit of marriage. They make
much of the absence of a record of the contested
marriage, the testimony of a witness38 attesting that they
were not married, and a baptismal certificate which
referred to Josefa Delgado as "Señorita" or unmarried
woman.39
We are not persuaded.
First, although a marriage contract is considered a
primary evidence of marriage, its absence is not always
proof that no marriage in fact took place.40 Once the
presumption of marriage arises, other evidence may be
presented in support thereof. The evidence need not
necessarily or directly establish the marriage but must at
least be enough to strengthen the presumption of
marriage. Here, the certificate of identity issued to Josefa
Delgado as Mrs. Guillermo Rustia,41 the passport issued
to her as Josefa D. Rustia,42 the declaration under oath of
no less than Guillermo Rustia that he was married to
Josefa Delgado43 and the titles to the properties in the
name of "Guillermo Rustia married to Josefa Delgado,"
more than adequately support the presumption of
marriage. These are public documents which are prima
facie evidence of the facts stated therein.44 No clear and
convincing evidence sufficient to overcome the
presumption of the truth of the recitals therein was
presented by petitioners.
Second, Elisa vda. de Anson, petitioners’ own witness
whose testimony they primarily relied upon to support
their position, confirmed that Guillermo Rustia had
proposed marriage to Josefa Delgado and that
eventually, the two had "lived together as husband and
wife." This again could not but strengthen the
presumption of marriage.
Third, the baptismal certificate45 was conclusive proof
only of the baptism administered by the priest who
baptized the child. It was no proof of the veracity of the
declarations and statements contained therein,46 such as
the alleged single or unmarried ("Señorita") civil status of
Josefa Delgado who had no hand in its preparation.
Petitioners failed to rebut the presumption of marriage of
Guillermo Rustia and Josefa Delgado. In this jurisdiction,
every intendment of the law leans toward legitimizing
matrimony. Persons dwelling together apparently in
marriage are presumed to be in fact married. This is the
usual order of things in society and, if the parties are not
what they hold themselves out to be, they would be
living in constant violation of the common rules of law
and propriety. Semper praesumitur pro matrimonio.
Always presume marriage.47
The Lawful Heirs Of Josefa Delgado
To determine who the lawful heirs of Josefa Delgado are,
the questioned status of the cohabitation of her mother
Felisa Delgado with Ramon Osorio must first be
addressed.
As mentioned earlier, presumptions of law are either
conclusive or disputable. Conclusive presumptions are
inferences which the law makes so peremptory that no
contrary proof, no matter how strong, may overturn
them.48 On the other hand, disputable presumptions, one
of which is the presumption of marriage, can be relied on
only in the absence of sufficient evidence to the contrary.
Little was said of the cohabitation or alleged marriage of
Felisa Delgado and Ramon Osorio. The oppositors (now
respondents) chose merely to rely on the disputable
presumption of marriage even in the face of such
countervailing evidence as (1) the continued use by Felisa
and Luis (her son with Ramon Osorio) of the surname
Delgado and (2) Luis Delgado’s and Caridad
Concepcion’s Partida de Casamiento49 identifying Luis as
"hijo natural de Felisa Delgado" (the natural child of
Felisa Delgado).50
All things considered, we rule that these factors
sufficiently overcame the rebuttable presumption of
marriage. Felisa Delgado and Ramon Osorio were never
married. Hence, all the children born to Felisa Delgado
out of her relations with Ramon Osorio and Lucio Campo,
57
namely, Luis and his half-blood siblings Nazario,
Edilberta, Jose, Jacoba, Gorgonio and the decedent
Josefa, all surnamed Delgado,51 were her natural
children.52
Pertinent to this matter is the following observation:
Suppose, however, that A begets X with B, and Y with
another woman, C; then X and Y would be natural
brothers and sisters, but of half-blood relationship. Can
they succeed each other reciprocally?
The law prohibits reciprocal succession between
illegitimate children and legitimate children of the same
parent, even though there is unquestionably a tie of
blood between them. It seems that to allow an
illegitimate child to succeed ab intestato (from) another
illegitimate child begotten with a parent different from
that of the former, would be allowing the illegitimate
child greater rights than a legitimate child.
Notwithstanding this, however, we submit that
succession should be allowed, even when the illegitimate
brothers and sisters are only of the half-blood. The
reason impelling the prohibition on reciprocal
successions between legitimate and illegitimate families
does not apply to the case under consideration. That
prohibition has for its basis the difference in category
between illegitimate and legitimate relatives. There is no
such difference when all the children are illegitimate
children of the same parent, even if begotten with
different persons. They all stand on the same footing
before the law, just like legitimate children of half-blood
relation. We submit, therefore, that the rules regarding
succession of legitimate brothers and sisters should be
applicable to them. Full blood illegitimate brothers and
sisters should receive double the portion of half-blood
brothers and sisters; and if all are either of the full blood
or of the half-blood, they shall share equally.53
Here, the above-named siblings of Josefa Delgado were
related to her by full-blood, except Luis Delgado, her
half-brother. Nonetheless, since they were all illegitimate,
they may inherit from each other. Accordingly, all of
them are entitled to inherit from Josefa Delgado.
We note, however, that the petitioners before us are
already the nephews, nieces, grandnephews and
grandnieces of Josefa Delgado. Under Article 972 of the
new Civil Code, the right of representation in the
collateral line takes place only in favor of the children of
brothers and sisters (nephews and nieces). Consequently,
it cannot be exercised by grandnephews and
grandnieces.54 Therefore, the only collateral relatives of
Josefa Delgado who are entitled to partake of her
intestate estate are her brothers and sisters, or their
children who were still alive at the time of her death on
September 8, 1972. They have a vested right to
participate in the inheritance.55 The records not being
clear on this matter, it is now for the trial court to
determine who were the surviving brothers and sisters (or
their children) of Josefa Delgado at the time of her death.
Together with Guillermo Rustia,56 they are entitled to
inherit from Josefa Delgado in accordance with Article
1001 of the new Civil Code:57
Art. 1001. Should brothers and sisters or their children
survive with the widow or widower, the latter shall be
entitled to one-half of the inheritance and the brothers
and sisters or their children to the other one-half.
Since Josefa Delgado had heirs other than Guillermo
Rustia, Guillermo could not have validly adjudicated
Josefa’s estate all to himself. Rule 74, Section 1 of the
Rules of Court is clear. Adjudication by an heir of the
decedent’s entire estate to himself by means of an
affidavit is allowed only if he is the sole heir to the estate:
SECTION 1. Extrajudicial settlement by agreement
between heirs. – If the decedent left no will and no debts
and the heirs are all of age, or the minors are represented
by their judicial or legal representatives duly authorized
for the purpose, the parties may, without securing letters
of administration, divide the estate among themselves as
they see fit by means of a public instrument filed in the
office of the register of deeds, and should they disagree,
they may do so in an ordinary action of partition. If there
is only one heir, he may adjudicate to himself the estate
by means of an affidavit filed in the office of the register
of deeds. x x x (emphasis supplied)
The Lawful Heirs Of Guillermo Rustia
Intervenor (now co-respondent) Guillerma Rustia is an
illegitimate child58 of Guillermo Rustia. As such, she may
be entitled to successional rights only upon proof of an
admission or recognition of paternity.59 She, however,
claimed the status of an acknowledged illegitimate child
of Guillermo Rustia only after the death of the latter on
February 28, 1974 at which time it was already the new
Civil Code that was in effect.
Under the old Civil Code (which was in force till August
29, 1950), illegitimate children absolutely had no
hereditary rights. This draconian edict was, however, later
relaxed in the new Civil Code which granted certain
successional rights to illegitimate children but only on
condition that they were first recognized or
acknowledged by the parent.
58
Under the new law, recognition may be compulsory or
voluntary.60 Recognition is compulsory in any of the
following cases:
(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 (or
mother)61 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. 62
On the other hand, voluntary recognition may be made
in the record of birth, a will, a statement before a court of
record or in any authentic writing.63
Intervenor Guillerma sought recognition on two grounds:
first, compulsory recognition through the open and
continuous possession of the status of an illegitimate
child and second, voluntary recognition through
authentic writing.
There was apparently no doubt that she possessed the
status of an illegitimate child from her birth until the
death of her putative father Guillermo Rustia. However,
this did not constitute acknowledgment but a mere
ground by which she could have compelled
acknowledgment through the courts.64 Furthermore, any
(judicial) action for compulsory acknowledgment has a
dual limitation: the lifetime of the child and the lifetime
of the putative parent.65 On the death of either, the
action for compulsory recognition can no longer be
filed.66 In this case, intervenor Guillerma’s right to claim
compulsory acknowledgment prescribed upon the death
of Guillermo Rustia on February 28, 1974.
The claim of voluntary recognition (Guillerma’s second
ground) must likewise fail. An authentic writing, for
purposes of voluntary recognition, is understood as a
genuine or indubitable writing of the parent (in this case,
Guillermo Rustia). This includes a public instrument or a
private writing admitted by the father to be his.67 Did
intervenor’s report card from the University of Santo
Tomas and Josefa Delgado’s obituary prepared by
Guillermo Rustia qualify as authentic writings under the
new Civil Code? Unfortunately not. The report card of
intervenor Guillerma did not bear the signature of
Guillermo Rustia. The fact that his name appears there as
intervenor’s parent/guardian holds no weight since he
had no participation in its preparation. Similarly, while
witnesses testified that it was Guillermo Rustia himself
who drafted the notice of death of Josefa Delgado which
was published in the Sunday Times on September 10,
1972, that published obituary was not the authentic
writing contemplated by the law. What could have been
admitted as an authentic writing was the original
manuscript of the notice, in the handwriting of Guillermo
Rustia himself and signed by him, not the newspaper
clipping of the obituary. The failure to present the
original signed manuscript was fatal to intervenor’s claim.
The same misfortune befalls the ampun-ampunan,
Guillermina Rustia Rustia, who was never adopted in
accordance with law. Although a petition for her
adoption was filed by Guillermo Rustia, it never came to
fruition and was dismissed upon the latter’s death. We
affirm the ruling of both the trial court and the Court of
Appeals holding her a legal stranger to the deceased
spouses and therefore not entitled to inherit from
them ab intestato. We quote:
Adoption is a juridical act, a proceeding in rem, which
[created] between two persons a relationship similar to
that which results from legitimate paternity and filiation.
Only an adoption made through the court, or in
pursuance with the procedure laid down under Rule 99 of
the Rules of Court is valid in this jurisdiction. It is not of
natural law at all, but is wholly and entirely artificial. To
establish the relation, the statutory requirements must be
strictly carried out, otherwise, the adoption is an absolute
nullity. The fact of adoption is never presumed, but must
be affirmatively [proven] by the person claiming its
existence.68
Premises considered, we rule that two of the claimants to
the estate of Guillermo Rustia, namely, intervenor
Guillerma Rustia and the ampun-ampunan Guillermina
Rustia Rustia, are not lawful heirs of the decedent. Under
Article 1002 of the new Civil Code, if there are no
descendants, ascendants, illegitimate children, or
surviving spouse, the collateral relatives shall succeed to
the entire estate of the deceased. Therefore, the lawful
heirs of Guillermo Rustia are the remaining claimants,
consisting of his sisters,69 nieces and nephews.70
Entitlement To Letters Of Administration
An administrator is a person appointed by the court to
administer the intestate estate of the decedent. Rule 78,
Section 6 of the Rules of Court prescribes an order of
preference in the appointment of an administrator:
59
Sec. 6. When and to whom letters of administration
granted. – If no executor is named in the will, or the
executor or executors are incompetent, refuse the trust,
or fail to give a bond, or a person dies intestate,
administration shall be granted:
(a) To the surviving husband or wife, as the case
may be, or next of kin, or both, in the discretion
of the court, or to such person as such surviving
husband or wife, or next of kin, requests to
have appointed, if competent and willing to
serve;
(b) If such surviving husband or wife, as the
case may be, or next of kin, or the person
selected by them, be incompetent or unwilling,
or if the husband or widow or next of kin,
neglects for thirty (30) days after the death of
the person to apply for administration or to
request that the administration be granted to
some other person, it may be granted to one or
more of the principal creditors, if competent
and willing to serve;
(c) If there is no such creditor competent and
willing to serve, it may be granted to such other
person as the court may select.
In the appointment of an administrator, the principal
consideration is the interest in the estate of the one to be
appointed.71 The order of preference does not rule out
the appointment of co-administrators, specially in cases
where
justice and equity demand that opposing parties or
factions be represented in the management of the
estates,72 a situation which obtains here.
It is in this light that we see fit to appoint joint
administrators, in the persons of Carlota Delgado vda.
de de la Rosa and a nominee of the nephews and nieces
of Guillermo Rustia. They are the next of kin of the
deceased spouses Josefa Delgado and Guillermo Rustia,
respectively.
WHEREFORE, the petition (which seeks to reinstate the
May 11, 1990 decision of the RTC Manila, Branch 55) is
hereby DENIED. The assailed October 24, 2002 decision
of the Court of Appeals is AFFIRMED with the following
modifications:
1. Guillermo Rustia’s June 15, 1973 affidavit of
self-adjudication is hereby ANNULLED.
2. the intestate estate of Guillermo Rustia shall
inherit half of the intestate estate of Josefa
Delgado. The remaining half shall pertain to (a)
the full and half-siblings of Josefa Delgado who
survived her and (b) the children of any of
Josefa Delgado’s full- or half-siblings who may
have predeceased her, also surviving at the
time of her death. Josefa Delgado’s
grandnephews and grandnieces are excluded
from her estate. In this connection, the trial
court is hereby ordered to determine the
identities of the relatives of Josefa Delgado who
are entitled to share in her estate.
3. Guillermo Rustia’s estate (including its one-
half share of Josefa Delgado’s estate) shall be
inherited by Marciana Rustia vda. de Damian
and Hortencia Rustia Cruz (whose respective
shares shall be per capita) and the children of
the late Roman Rustia, Sr. (who survived
Guillermo Rustia and whose respective shares
shall be per stirpes). Considering that Marciana
Rustia vda. de Damian and Hortencia Rustia
Cruz are now deceased, their respective shares
shall pertain to their estates.
4. Letters of administration over the still
unsettled intestate estates of Guillermo Rustia
and Josefa Delgado shall issue to Carlota
Delgado vda. de de la Rosa and to a nominee
from among the heirs of Guillermo Rustia, as
joint administrators, upon their qualification
and filing of the requisite bond in such amount
as may be determined by the trial court.
No pronouncement as to costs. SO ORDERED.
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.
QUISUMBING, J.:
This petition for review seeks the reversal of the
Decision1 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
60
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
61
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
62
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, petitioner,
as found by the courts a quo.
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:
(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.
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 testimonies,
to us, are convincing, and irrefutable evidence that Verna
Aiza is, indeed, petitioner’s illegitimate child.
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
63
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 Article 2208 (2)25 and (11)26 of the New
Civil Code.
WHEREFORE, the assailed Decision dated May 30, 2003
and the Resolution dated August 27, 2003 of the Court of
Appeals in CA-G.R. CV No. 50557 are AFFIRMED, with the
MODIFICATION that the award of moral damages and
exemplary damages be DELETED.
SO ORDERED.
G.R. No. 177728 July 31, 2009
JENIE SAN JUAN DELA CRUZ and minor CHRISTIAN DELA
CRUZ "AQUINO," represented by JENIE SAN JUAN DELA
CRUZ, Petitioners,
vs.
RONALD PAUL S. GRACIA, in his capacity as City Civil
Registrar of Antipolo City, Respondent.
DECISION
CARPIO MORALES, J.:
For several months in 2005, then 21-year old petitioner
Jenie San Juan Dela Cruz (Jenie) and then 19-year old
Christian Dominique Sto. Tomas Aquino (Dominique)
lived together as husband and wife without the benefit of
marriage. They resided in the house of Dominique’s
parents Domingo B. Aquino and Raquel Sto. Tomas
Aquino at Pulang-lupa, Dulumbayan, Teresa, Rizal.
On September 4, 2005, Dominique died.1 After almost
two months, or on November 2, 2005, Jenie, who
continued to live with Dominique’s parents, gave birth to
her herein co-petitioner minor child Christian Dela Cruz
"Aquino" at the Antipolo Doctors Hospital, Antipolo City.
Jenie applied for registration of the child’s birth, using
Dominique’s surname Aquino, with the Office of the City
Civil Registrar, Antipolo City, in support of which she
submitted the child’s Certificate of Live Birth,2 Affidavit to
Use the Surname of the Father3 (AUSF) which she had
executed and signed, and Affidavit of Acknowledgment
executed by Dominique’s father Domingo Butch
Aquino.4 Both affidavits attested, inter alia, that during
the lifetime of Dominique, he had continuously
acknowledged his yet unborn child, and that his paternity
had never been questioned. Jenie attached to the AUSF a
document entitled "AUTOBIOGRAPHY" which Dominique,
during his lifetime, wrote in his own handwriting, the
pertinent portions of which read:
AQUINO, CHRISTIAN DOMINIQUE S.T.
AUTOBIOGRAPHY
I’M CHRISTIAN DOMINIQUE STO. TOMAS AQUINO, 19
YEARS OF AGE TURNING 20 THIS COMING OCTOBER 31,
2005.5 I RESIDE AT PULANG-LUPA STREET BRGY.
DULUMBAYAN, TERESA, RIZAL. I AM THE YOUNGEST IN
OUR FAMILY. I HAVE ONE BROTHER NAMED JOSEPH
BUTCH STO. TOMAS AQUINO. MY FATHER’S NAME IS
DOMINGO BUTCH AQUINO AND MY MOTHER’S NAME
IS RAQUEL STO. TOMAS AQUINO. x x x.
xxxx
AS OF NOW I HAVE MY WIFE NAMED JENIE DELA CRUZ.
WE MET EACH OTHER IN OUR HOMETOWN, TEREZA
RIZAL. AT FIRST WE BECAME GOOD FRIENDS, THEN WE
FELL IN LOVE WITH EACH OTHER, THEN WE BECAME
GOOD COUPLES. AND AS OF NOW SHE IS
PREGNANT AND FOR THAT WE LIVE TOGETHER IN OUR
HOUSE NOW. THAT’S ALL.6 (Emphasis and underscoring
supplied)
By letter dated November 11, 2005,7 the City Civil
Registrar of Antipolo City, Ronald Paul S. Gracia
(respondent), denied Jenie’s application for registration
of the child’s name in this wise:
7. Rule 7 of Administrative Order No. 1, Series of 2004
(Implementing Rules and Regulations of Republic Act No.
9255 ["An Act Allowing Illegitimate Children to Use the
Surname of their Father, Amending for the Purpose,
Article 176 of Executive Order No. 209, otherwise Known
as the ‘Family Code of the Philippines’"]) provides that:
Rule 7. Requirements for the Child to Use the Surname of
the Father
7.1 For Births Not Yet Registered
64
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
handwritten instrument, the child shall use the surname
of the father, provided the registration is supported by
the following documents:
a. AUSF8
b. Consent of the child, if 18 years old and over
at the time of the filing of the document.
c. Any two of the following documents showing
clearly the paternity between the father and the
child:
1. Employment records
2. SSS/GSIS records
3. Insurance
4. Certification of membership in any
organization
5. Statement of Assets and Liability
6. Income Tax Return (ITR)
In summary, the child cannot use the surname of his
father because he was born out of wedlock and the
father unfortunately died prior to his birth and has no
more capacity to acknowledge his paternity to the child
(either through the back of Municipal Form No. 102 –
Affidavit of Acknowledgment/Admission of Paternity – or
the Authority to Use the Surname of the Father).
(Underscoring supplied)
Jenie and the child promptly filed a complaint9 for
injunction/registration of name against respondent
before the Regional Trial Court of Antipolo City, docketed
as SCA Case No. 06-539, which was raffled to Branch 73
thereof. The complaint alleged that, inter alia, the denial
of registration of the child’s name is a violation of his
right to use the surname of his deceased father
under Article 176 of the Family Code, as amended by
Republic Act (R.A.) No. 9255,10 which provides:
Article 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 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. 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 and underscoring
supplied)
They maintained that the Autobiography executed by
Dominique constitutes an admission of paternity in a
"private handwritten instrument" within the
contemplation of the above-quoted provision of law.
For failure to file a responsive pleading or answer despite
service of summons, respondent was declared in default.
Jenie thereupon presented evidence ex-parte. She
testified on the circumstances of her common-law
relationship with Dominique and affirmed her
declarations in her AUSF that during his lifetime, he had
acknowledged his yet unborn child.11 She offered
Dominique’s handwritten Autobiography (Exhibit "A") as
her documentary evidence-in-chief.12 Dominique’s lone
brother, Joseph Butch S.T. Aquino, also testified,
corroborating Jenie’s declarations.13
By Decision14 of April 25, 2007, the trial court dismissed
the complaint "for lack of cause of action" as the
Autobiography was unsigned, citing paragraph 2.2, Rule
2 (Definition of Terms) of Administrative Order (A.O.) No.
1, Series of 2004 (the Rules and Regulations Governing the
Implementation of R.A. 9255) which defines "private
handwritten document" through which a father may
acknowledge an illegitimate child as follows:
2.2 Private handwritten instrument – an instrument
executed in the handwriting of the father and duly signed
by him where he expressly recognizes paternity to the
child. (Underscoring supplied)
The trial court held that even if Dominique was the
author of the handwritten Autobiography, the same does
not contain any express recognition of paternity.1avvphi1
Hence, this direct resort to the Court via Petition for
Review on Certiorari raising this purely legal issue of:
WHETHER OR NOT THE UNSIGNED HANDWRITTEN
STATEMENT OF THE DECEASED FATHER OF MINOR
CHRISTIAN DELA CRUZ CAN BE CONSIDERED AS A
RECOGNITION OF PATERNITY IN A "PRIVATE
65
HANDWRITTEN INSTRUMENT" WITHIN THE
CONTEMPLATION OF ARTICLE 176 OF THE FAMILY
CODE, AS AMENDED BY R.A. 9255, WHICH ENTITLES THE
SAID MINOR TO USE HIS FATHER’S
SURNAME.15 (Underscoring supplied)
Petitioners contend that Article 176 of the Family Code,
as amended, does not expressly require that the private
handwritten instrument containing the putative father’s
admission of paternity must be signed by him. They add
that the deceased’s handwritten Autobiography, though
unsigned by him, is sufficient, for the requirement in the
above-quoted paragraph 2.2 of the Administrative
Order that the admission/recognition must be "duly
signed" by the father is void as it "unduly expanded" the
earlier-quoted provision of Article 176 of the Family
Code.16
Petitioners further contend that the trial court erred in
not finding that Dominique’s handwritten Autobiography
contains a "clear and unmistakable" recognition of the
child’s paternity.17
In its Comment, the Office of the Solicitor General (OSG)
submits that respondent’s position, as affirmed by the
trial court, is in consonance with the law and thus prays
for the dismissal of the petition. It further submits that
Dominique’s Autobiography "merely acknowledged
Jenie’s pregnancy but not [his] paternity of the child she
was carrying in her womb."18
Article 176 of the Family Code, as amended by R.A. 9255,
permits an illegitimate child to use the surname of
his/her father if the latter had expressly recognized
him/her as his offspring through the record of birth
appearing in the civil register, or through an admission
made in a public or private handwritten instrument. The
recognition made in any of these documents is, in itself, a
consummated act of acknowledgment of the child’s
paternity; hence, no separate action for judicial approval
is necessary.19
Article 176 of the Family Code, as amended, does not,
indeed, explicitly state that the private handwritten
instrument acknowledging the child’s paternity must be
signed by the putative father. This provision must,
however, be read in conjunction with related provisions
of the Family Code which require that recognition by the
father must bear his signature, thus:
Art. 175. Illegitimate children may establish their
illegitimate filiation in the same way and on the same
evidence as legitimate children.
xxxx
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.
x x x x (Emphasis and underscoring supplied)
That a father who acknowledges paternity of a child
through a written instrument must affix his signature
thereon is clearly implied in Article 176 of the Family
Code. Paragraph 2.2, Rule 2 of A.O. No. 1, Series of 2004,
merely articulated such requirement; it did not "unduly
expand" the import of Article 176 as claimed by
petitioners.
In the present case, however, special circumstances exist
to hold that Dominique’s Autobiography, though
unsigned by him, substantially satisfies the requirement
of the law.
First, Dominique died about two months prior to the
child’s birth. Second, the relevant matters in the
Autobiography, unquestionably handwritten by
Dominique, correspond to the facts culled from the
testimonial evidence Jenie proffered.20 Third, Jenie’s
testimony is corroborated by the Affidavit of
Acknowledgment of Dominique’s father Domingo
Aquino and testimony of his brother Joseph Butch
Aquino whose hereditary rights could be affected by the
registration of the questioned recognition of the child.
These circumstances indicating Dominique’s paternity of
the child give life to his statements in his Autobiography
that "JENIE DELA CRUZ" is "MY WIFE" as "WE FELL IN
LOVE WITH EACH OTHER" and "NOW SHE IS
PREGNANT AND FOR THAT WE LIVE TOGETHER."
In Herrera v. Alba,21 the Court summarized the laws, rules,
and jurisprudence on establishing filiation, discoursing in
relevant part:
Laws, Rules, and Jurisprudence
Establishing Filiation
The relevant provisions of the Family Code provide as
follows:
66
ART. 175. Illegitimate children may establish their
illegitimate filiation in the same way and on the same
evidence as legitimate children.
xxxx
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.
The Rules on Evidence include provisions on pedigree.
The relevant sections of Rule 130 provide:
SEC. 39. Act or declaration 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.
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, 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. A notarial
agreement to support a child whose filiation is admitted
by the putative father was considered acceptable
evidence. 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. 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. Standing alone, neither a certificate of baptism
nor family pictures are sufficient to establish filiation.
(Emphasis and underscoring supplied.)
In the case at bar, there is no dispute that the earlier
quoted statements in Dominique’s Autobiography have
been made and written by him. Taken together with the
other relevant facts extant herein – that Dominique,
during his lifetime, and Jenie were living together as
common-law spouses for several months in 2005 at his
parents’ house in Pulang-lupa, Dulumbayan, Teresa, Rizal;
she was pregnant when Dominique died on September 4,
2005; and about two months after his death, Jenie gave
birth to the child – they sufficiently establish that the
child of Jenie is Dominique’s.
In view of the pronouncements herein made, the Court
sees it fit to adopt the following rules respecting the
requirement of affixing the signature of the
acknowledging parent in any private handwritten
instrument wherein an admission of filiation of a
legitimate or illegitimate child is made:
1) Where the private handwritten instrument is
the lone piece of evidence submitted to prove
filiation, there should be strict compliance with
the requirement that the same must be signed
by the acknowledging parent; and
2) Where the private handwritten instrument
is accompanied by other relevant and
competent evidence, it suffices that the claim of
filiation therein be shown to have been made
and handwritten by the acknowledging parent
as it is merely corroborative of such other
evidence.
67
Our laws instruct that the welfare of the child shall be the
"paramount consideration" in resolving questions
affecting him.22 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.23 (Underscoring supplied)
It is thus "(t)he policy of the Family Code to liberalize the
rule on the investigation of the paternity and filiation of
children, especially of illegitimate children x x x."24 Too,
"(t)he State as parens patriae affords special protection to
children from abuse, exploitation and other conditions
prejudicial to their development."25
In the eyes of society, a child with an unknown father
bears the stigma of dishonor. It is to petitioner minor
child’s best interests to allow him to bear the surname of
the now deceased Dominique and enter it in his birth
certificate.
WHEREFORE, the petition is GRANTED. The City Civil
Registrar of Antipolo City is DIRECTED to
immediately enter the surname of the late Christian
Dominique Sto. Tomas Aquino as the surname of
petitioner minor Christian dela Cruz in his Certificate of
Live Birth, and record the same in the Register of Births.
SO ORDERED.
G.R. No. 181258 March 18, 2010
BEN-HUR NEPOMUCENO, Petitioner,
vs.
ARHBENCEL ANN LOPEZ, represented by her mother
ARACELI LOPEZ, Respondent.
CARPIO MORALES, J.:
Respondent Arhbencel Ann Lopez (Arhbencel),
represented by her mother Araceli Lopez (Araceli), filed a
Complaint1 with the Regional Trial Court (RTC) of
Caloocan City for recognition and support against Ben-
Hur Nepomuceno (petitioner).
Born on June 8, 1999, Arhbencel claimed to have been
begotten out of an extramarital affair of petitioner with
Araceli; that petitioner refused to affix his signature on
her Certificate of Birth; and that, by a handwritten note
dated August 7, 1999, petitioner nevertheless obligated
himself to give her financial support in the amount of
₱1,500 on the 15th and 30th days of each month
beginning August 15, 1999.
Arguing that her filiation to petitioner was established by
the handwritten note, Arhbencel prayed that petitioner
be ordered to: (1) recognize her as his child, (2) give her
support pendente lite in the increased amount of ₱8,000
a month, and (3) give her adequate monthly financial
support until she reaches the age of majority.
Petitioner countered that Araceli had not proven that he
was the father of Arhbencel; and that he was only forced
to execute the handwritten note on account of threats
coming from the National People’s Army.2
By Order of July 4, 2001,3 Branch 130 of the Caloocan
RTC, on the basis of petitioner’s handwritten note which
it treated as "contractual support" since the issue of
Arhbencel’s filiation had yet to be determined during the
hearing on the merits, granted Arhbencel’s prayer for
support pendente lite in the amount of ₱3,000 a month.
After Arhbencel rested her case, petitioner filed a
demurrer to evidence which the trial court granted by
Order dated June 7, 2006,4 whereupon the case was
dismissed for insufficiency of evidence.
The trial court held that, among other things, Arhbencel’s
Certificate of Birth was not prima facie evidence of her
filiation to petitioner as it did not bear petitioner’s
signature; that petitioner’s handwritten undertaking to
provide support did not contain a categorical
acknowledgment that Arhbencel is his child; and that
there was no showing that petitioner performed any
overt act of acknowledgment of Arhbencel as his
illegitimate child after the execution of the note.
On appeal by Arhbencel, the Court of Appeals, by
Decision of July 20, 2007,5 reversed the trial court’s
decision, declared Arhbencel to be petitioner’s
illegitimate daughter and accordingly ordered petitioner
to give Arhbencel financial support in the increased
amount of ₱4,000 every 15th and 30th days of the
month, or a total of ₱8,000 a month.
The appellate court found that from petitioner’s payment
of Araceli’s hospital bills when she gave birth to
Arhbencel and his subsequent commitment to provide
monthly financial support, the only logical conclusion to
be drawn was that he was Arhbencel’s father; that
petitioner merely acted in bad faith in omitting a
statement of paternity in his handwritten undertaking to
provide financial support; and that the amount of ₱8,000
68
a month was reasonable for Arhbencel’s subsistence and
not burdensome for petitioner in view of his income.
His Motion for Reconsideration having been denied by
Resolution dated January 3, 2008,6 petitioner comes
before this Court through the present Petition for Review
on Certiorari.7
Petitioner contends that nowhere in the documentary
evidence presented by Araceli is an explicit statement
made by him that he is the father of Arhbencel; that
absent recognition or acknowledgment, illegitimate
children are not entitled to support from the putative
parent; that the supposed payment made by him of
Araceli’s hospital bills was neither alleged in the
complaint nor proven during the trial; and that
Arhbencel’s claim of paternity and filiation was not
established by clear and convincing evidence.
Arhbencel avers in her Comment that petitioner raises
questions of fact which the appellate court had already
addressed, along with the issues raised in the present
petition.8
The petition is impressed with merit.
The relevant provisions of the Family Code9 that treat of
the right to support are Articles 194 to 196, thus:
Article 194. Support compromises everything
indispensable for sustenance, dwelling, clothing, medical
attendance, education and transportation, in keeping
with the financial capacity of the family.1awph!1
The education of the person entitled to be supported
referred to in the preceding paragraph shall include his
schooling or training for some profession, trade or
vocation, even beyond the age of majority.
Transportation shall include expenses in going to and
from school, or to and from place of work.
Article 195. Subject to the provisions of the succeeding
articles, the following are obliged to support each
other to the whole extent set forth in the preceding
article:
1. The spouses;
2. Legitimate ascendants and descendants;
3. Parents and their legitimate children and the
legitimate and illegitimate children of the latter;
4. Parents and their illegitimate children and the
legitimate and illegitimate children of the latter;
and
5. Legitimate brothers and sisters, whether of
the full or half-blood.
Article 196. Brothers and sisters not legitimately related,
whether of the full or half-blood, are likewise bound to
support each other to the full extent set forth in Article
194, except only when the need for support of the
brother or sister, being of age, is due to a cause
imputable to the claimant's fault or negligence.
(emphasis and underscoring supplied)
Arhbencel’s demand for support, being based on her
claim of filiation to petitioner as his illegitimate daughter,
falls under Article 195(4). As such, her entitlement to
support from petitioner is dependent on the
determination of her filiation.
Herrera v. Alba10 summarizes the laws, rules, and
jurisprudence on establishing filiation, discoursing in
relevant part as follows:
Laws, Rules, and Jurisprudence
Establishing Filiation
The relevant provisions of the Family Code provide as
follows:
ART. 175. Illegitimate children may establish their
illegitimate filiation in the same way and on the same
evidence as legitimate children.
xxxx
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:
69
 (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.
The Rules on Evidence include provisions on pedigree.
The relevant sections of Rule 130 provide:
SEC. 39. Act or declaration 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.
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, 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. A notarial
agreement to support a child whose filiation is admitted
by the putative father was considered acceptable
evidence. 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. 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. Standing alone, neither a certificate of baptism
nor family pictures are sufficient to establish filiation.
(emphasis and underscoring supplied)
In the present case, Arhbencel relies, in the main, on the
handwritten note executed by petitioner which reads:
Manila, Aug. 7, 1999
I, Ben-Hur C. Nepomuceno, hereby undertake to give and
provide financial support in the amount of ₱1,500.00
every fifteen and thirtieth day of each month for a total
of ₱3,000.00 a month starting Aug. 15, 1999, to
Ahrbencel Ann Lopez, presently in the custody of her
mother Araceli Lopez without the necessity of demand,
subject to adjustment later depending on the needs of
the child and my income.
The abovequoted note does not contain any statement
whatsoever about Arhbencel’s filiation to petitioner. It is,
therefore, not within the ambit of 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.
The note cannot also be accorded the same weight as
the notarial agreement to support the child referred to in
Herrera. For it is not even notarized. And Herrera
instructs that the notarial agreement must be
accompanied by the putative father’s admission of
filiation to be an acceptable evidence of filiation. Here,
however, not only has petitioner not admitted filiation
through contemporaneous actions. He has consistently
denied it.
The only other documentary evidence submitted by
Arhbencel, a copy of her Certificate of Birth,11 has no
probative value to establish filiation to petitioner, the
latter not having signed the same.
At bottom, all that Arhbencel really has is petitioner’s
handwritten undertaking to provide financial support to
her which, without more, fails to establish her claim of
filiation. The Court is mindful that the best interests of
the child in cases involving paternity and filiation should
be advanced. It is, however, just as mindful of the
disturbance that unfounded paternity suits cause to the
privacy and peace of the putative father’s legitimate
family.
WHEREFORE, the petition is GRANTED. The Court of
Appeals Decision of July 20, 2007 is SET ASIDE. The Order
dated June 7, 2006 of Branch 130 of the Caloocan City
RTC dismissing the complaint for insufficiency of
evidence is REINSTATED.
SO ORDERED.
70
 G.R. No. 200169 January 28, 2015
RODOLFO S. AGUILAR, Petitioner.
vs.
EDNA G. SIASAT, Respondent.
DEL CASTILLO, J.:
This Petition for Review on Certiorari1 seeks to set aside
the August 30, 2006 Decision2 and December 20, 2011
Resolution3 of the Court of Appeals (CA) in CA-G.R. CEB-
CV No. 64229 affirming the August 17, 1999 Decision4 of
the Regional Trial Court (RTC) of Bacolod City, Branch 49
in Civil Case No. 96-9591 and denying petitioner's
Motion for Reconsideration.5
Factual Antecedents
Spouses Alfredo Aguilar and Candelaria Siasat-Aguilar
(the Aguilar spouses) died, intestate and without debts,
on August 26, 1983 and February 8, 1994, respectively.
Included in their estate are two parcels of land (herein
subject properties) covered by Transfer Certificates of
Title Nos. T-25896 and T-(15462) 1070 of the Registries
of Deeds of Bago and Bacolod (the subject titles).6
In June 1996, petitioner Rodolfo S. Aguilar filed with the
RTC of Bacolod City (Bacolod RTC) a civil case for
mandatory injunction with damages against respondent
Edna G. Siasat. Docketed as Civil Case No. 96-9591 and
assigned to Branch 49 of the Bacolod RTC, the
Complaint7 alleged that petitioner is the only son and
sole surviving heir of the Aguilar spouses; that he
(petitioner) discovered that the subject titles were
missing, and thus he suspected that someone from the
Siasat clan could have stolen the same; that he executed
affidavits of loss of the subject titles and filed the same
with the Registries of Deeds of Bacolod and Bago; that
on June 22, 1996, he filed before the Bacolod RTC a
Petition for the issuance of second owner’s copy of
Certificate of Title No. T-25896,which respondent
opposed; and that during the hearing of the said Petition,
respondent presented the two missing owner’s duplicate
copies of the subject titles. Petitioner thus prayed for
mandatory injunctive relief, in that respondent be
ordered to surrender to him the owner’s duplicate copies
of the subject titles in her possession; and that damages,
attorney’s fees, and costs of suit be awarded to him.
In her Answer,8 respondent claimed that petitioner is not
the son and sole surviving heir of the Aguilar spouses,
but a mere stranger who was raised by the Aguilar
spouses out of generosity and kindness of heart; that
petitioner is not a natural or adopted child of the Aguilar
spouses; that since Alfredo Aguilar predeceased his wife,
Candelaria Siasat-Aguilar, the latter inherited the
conjugal share of the former; that upon the death of
Candelaria Siasat-Aguilar, her brothers and sisters
inherited her estate as she had no issue; and that the
subject titles were not stolen, but entrusted to her for
safekeeping by Candelaria Siasat-Aguilar, who is her
aunt. By way of counterclaim, respondent prayed for an
award of moral and exemplary damages, and attorney’s
fees.
During trial, petitioner testified and affirmed his
relationship to the Aguilar spouses as their son. To prove
filiation, he presented the following documents, among
others:
1. His school records at the Don J.A. Araneta
Elementary School, Purok No. 2, Bacolod-
Murcia Milling Company (BMMC), Bacolod City
(Exhibit "C" and submarkings), wherein it is
stated that Alfredo Aguilar is petitioner’s
parent;
2. His Individual Income Tax Return (Exhibit "F"),
which indicated that Candelaria Siasat-Aguilar is
his mother;
3. Alfredo Aguilar’s Social Security System (SSS)
Form E-1 dated October 10, 1957 (Exhibit "G"),
a public instrument subscribed and made under
oath by Alfredo Aguilar during his employment
with BMMC, which bears his signature and
thumb marks and indicates that petitioner, who
was born on March 5, 1945, is his son and
dependent;
4. Alfredo Aguilar’s Information Sheet of
Employment with BMMC dated October 29,
1954 (Exhibit "L"), indicating that petitioner is
his son;
5. Petitioner’s Certificate of Marriage to Luz
Abendan (Exhibit "M"), where it is declared that
the Aguilar spouses are his parents; and
6. Letter of the BMMC Secretary (Exhibit "O")
addressed to a BMMC supervisor introducing
petitioner as Alfredo Aguilar’s son and
recommending him for employment.
7. Certification dated January 27, 1996 issued
by the Bacolod City Civil Registry to the effect
that the record of births during the period 1945
to 1946 were "all destroyed by nature," hence
no true copies of the Certificate of Live Birth of
71
 petitioner could be issued as requested (Exhibit
"Q").9
Petitioner also offered the testimonies of his wife, Luz
Marie Abendan-Aguilar (Abendan-Aguilar), and Ester
Aguilar-Pailano (Aguilar-Pailano), his aunt and sister of
Alfredo Aguilar. Abendan-Aguilar confirmed petitioner’s
identity, and she testified that petitioner is the son of the
Aguilar spouses and that during her marriage to
petitioner, she lived with the latter in the Aguilar spouses’
conjugal home built on one of the subject properties. On
the other hand, 81-year old Aguilar-Pailano testified that
she is the sister of Alfredo Aguilar; that the Aguilar
spouses have only one son – herein petitioner – who was
born at BMMC; that after the death of the Aguilar
spouses, she and her siblings did not claim ownership of
the subject properties because they recognized petitioner
as the Aguilar spouses’ sole child and heir; that petitioner
was charged with murder, convicted, imprisoned, and
later on paroled; and that after he was discharged on
parole, petitioner continued to live with his mother
Candelaria Siasat-Aguilar in one of the subject properties,
and continues to live there with his family.10
For her evidence, respondent testified among others that
she is a retired teacher; that she does not know petitioner
very well, but only heard his name from her aunt
Candelaria Siasat-Aguilar; that she is not related by
consanguinity or affinity to petitioner; that she attended
to Candelaria Siasat-Aguilar while the latter was under
medication in a hospital until her death; that Candelaria
Siasat-Aguilar’s hospital and funeral expenses were paid
for by Nancy Vingno; that Candelaria Siasat-Aguilar
executed an affidavit to the effect that she had no issue
and that she is the sole heir to her husband Alfredo
Aguilar’s estate; that she did not steal the subject titles,
but that the same were entrusted to her by Candelaria
Siasat-Aguilar; that a prior planned sale of the subject
properties did not push through because when
petitioner’s opinion thereto was solicited, he expressed
disagreement as to the agreed price.11
Respondent likewise offered the testimony of Aurea
Siasat-Nicavera (Siasat-Nicavera), 74 years old, who
stated that the Aguilar spouses were married on June 22,
1933 in Miag-ao, Iloilo; that she is the sister of Candelaria
Siasat-Aguilar; that she does not know petitioner,
although she admitted that she knew a certain "Rodolfo"
whose nickname was "Mait"; that petitioner is not the son
of the Aguilar spouses; and that Alfredo Aguilar has a
sister named Ester Aguilar-Pailano.12
Respondent also offered an Affidavit previously executed
by Candelaria Siasat-Aguilar (Exhibit "2")announcing
among others that she and Alfredo have no issue, and
that she is the sole heir to Alfredo’s estate.
Ruling of the Regional Trial Court
On August 17, 1999, the Bacolod RTC issued its Decision,
decreeing as follows:
From the evidence thus adduced before this Court, no
solid evidence attesting to the fact that plaintiff herein is
either a biological son or a legally adopted one was ever
presented. Neither was a certificate of live birth of
plaintiff ever introduced confirming his biological
relationship as a son to the deceased spouses Alfredo
and Candelaria S. Aguilar. As a matter of fact, in the
affidavit of Candelaria S. Aguilar (Exhibit 2) she expressly
announced under oath that Alfredo and she have no
issue and that she is the sole heir to the estate of Alfredo
is (sic) concrete proof that plaintiff herein was never a
son by consanguinity nor a legally adopted one of the
deceased spouses Alfredo and Candelaria Aguilar.
This being the case, Petitioner is not deemed vested with
sufficient interest in this action to be considered qualified
or entitled to the issuance of the writ of mandatory
injunction and damages prayed for.
WHEREFORE, judgment is hereby rendered dismissing
plaintiff’s complaint with cost.
The counterclaim of the defendant is likewise dismissed
for lack of legal basis.
SO ORDERED.13
Ruling of the Court of Appeals
Petitioner filed an appeal with the CA.14 Docketed as CA-
G.R. CEB-CV No. 64229, the appeal essentially argued
that petitioner is indeed the Aguilar spouses’ son; that
under Article 172 of the Family Code,15 an admission of
legitimate filiation in a public document or a private
handwritten instrument signed by the parent concerned
constitutes proof of filiation; that through the
documentary evidence presented, petitioner has shown
that he is the legitimate biological son of the Aguilar
spouses and the sole heir to their estate. He argued that
he cannot present his Certificate of Live Birth as all the
records covering the period 1945-194616 of the Local Civil
Registry of Bacolod City were destroyed as shown by
Exhibits "Q" to "Q-3"; for this reason, he presented the
foregoing documentary evidence to prove his
relationship to the Aguilar spouses. Petitioner made
particular reference to, among others, Alfredo Aguilar’s
SSS Form E-1 (Exhibit "G"), arguing that the same was
made under oath and thus sufficient under Article 172 of
the Family Code to establish that he is a child and heir of
the Aguilar spouses. Finally, petitioner questioned the
72
trial court’s reliance upon Candelaria Siasat-Aguilar’s
affidavit (Exhibit "2") attesting that she and Alfredo have
no children and that she is the sole heir to the estate of
Alfredo, when such piece of evidence has been discarded
by the trial court in a previous Order dated April 1, 1998,
stating thus:
Except for defendant’s Exhibit "2", all other Exhibits,
Exhibits "1", "3", "4" and "5", together with their
submarkings, are all admitted in evidence.17
On August 30, 2006, the CA issued the assailed Decision
affirming the trial court’s August 17, 1999 Decision,
pronouncing thus:
The exhibits relied upon by plaintiff-appellant to establish
his filiation with the deceased spouses Aguilar deserve
scant consideration by this Court. The Elementary School
Permanent Record of plaintiff-appellant cannot be
considered as proof of filiation. As enunciated by the
Supreme Court in the case of Reyes vs. Court of Appeals,
135 SCRA 439:
"Student record or other writing not signed by alleged
father do not constitute evidence of filiation."
As regards the Income Tax Return of plaintiff-appellant
filed with the Bureau of Internal Revenue, WE hold thatit
cannot be considered as evidence of filiation. As stated
by the Supreme Court in the case of Labagala vs.
Santiago, 371 SCRA 360:
"A baptismal certificate, a private document is not
conclusive proof of filiation. More so are the entries
made in an income tax return, which only shows that
income tax has been paid and the amount thereof."
With respect to the Certificate of Marriage x x x wherein
it is shown that the parents of the former are Alfredo and
Candelaria Siasat Aguilar does not prove filiation. The
Highest Tribunal declared that a marriage contract not
signed by the alleged father of bride is not competent
evidence of filiation nor is a marriage contract
recognition in a public instrument.
The rest of the exhibits offered x x x, except the Social
Security Form E-1 (Exhibit "G") and the Information Sheet
of Employment of Alfredo Aguilar (Exhibit "L"), allegedly
tend to establish that plaintiff-appellant has been and is
presently known as Rodolfo Siasat Aguilar and he has
been bearing the surname of his alleged parents.
WE cannot sustain plaintiff-appellant’s argument. Use of
a family surname certainly does not establish pedigree.
Insofar as the SSS Form E-1 and Information Sheet of
Employment of Alfredo Aguilar are concerned, WE
cannot accept them as sufficient proof to establish and
prove the filiation of plaintiff-appellant to the deceased
Aguilar spouses. While the former is a public instrument
and the latter bears the signature of Alfredo Aguilar, they
do not constitute clear and convincing evidence to show
filiation based on open and continuous possession of the
status of a legitimate child. Filiation is a serious matter
that must be resolved according to the requirements of
the law. All told, plaintiff-appellant’s evidence failed to
hurdle the "high standard of proof" required for the
success of an action to establish one’s legitimate filiation
when relying upon the provisions regarding open and
continuous possession or any other means allowed by
the Rules of Court and special laws.
Having resolved that plaintiff-appellant is not an heir of
the deceased spouses Aguilar, thereby negating his right
to demand the delivery of the subject TCTs in his favor,
this Court cannot grant the writ of mandatory injunction
being prayed for.
xxxx
In the present case, plaintiff-appellant failed to show that
he has a clear and unmistakable right that has been
violated. Neither had he shown permanent and urgent
necessity for the issuance of the writ.
With respect to the damages prayed for, WE sustain the
trial court in denying the same. Aside from the fact that
plaintiff-appellant failed to show his clear right over the
subject parcels of land so that he has not sustained any
damage by reason of the withholding of the TCTs from
him, there is no clear testimony on the anguish or anxiety
he allegedly suffered as a result thereof. Well entrenched
in law and jurisprudence is the principle that the grant of
moral damages is expressly allowed by law in instances
where proofs of the mental anguish, serious anxiety and
moral shock were shown.
ACCORDINGLY, in line with the foregoing disquisition,
the appeal is hereby DENIED. The impugned Decision of
the trial court is AFFIRMED IN TOTO.
SO ORDERED.18
Petitioner filed a Motion for Reconsideration,19 but in a
December 20, 2011 Resolution, the CA held its ground.
Hence, the present Petition.
Issues
73
In an August 28, 2013 Resolution,20 this Court resolved to
give due course to the Petition, which raises the following
issues:
In issuing the assailed DECISION affirming in toto the
Decision of RTC Branch 49, Bacolod City, and the
Resolution denying petitioner’s Motion for
Reconsideration, the Honorable Court of Appeals
committed reversible error [in] not taking into
consideration petitioner’s Exhibit "G" (SSS E-1
acknowledged and notarized before a notary public,
executed by Alfredo Aguilar, recognizing the petitioner as
his son) as public document that satisfies the
requirement of Article 172 of the [Family] Code in the
establishment of the legitimate filiation of the petitioner
with his father, Alfredo Aguilar.
The herein [P]etition raises the issue of pure question of
law with respect to the application of Article 172 of the
Family Code particularly [paragraph] 3 thereof in
conjunction with Section 19 and Section 23, Rule 132 of
the Rules of Court relating to public document which is
substantial enough to merit consideration of this
Honorable Court as it will enrich jurisprudence and
forestall future litigation.21
Petitioner’s Arguments
In his Petition and Reply22 seeking to reverse and set
aside the assailed CA dispositions and praying that
judgment be rendered ordering respondent to surrender
the owner’s duplicates of Transfer Certificates of Title
Nos. T-25896 and T-(15462) 1070, petitioner argues that
Alfredo Aguilar’s SSS Form E-1 (Exhibit "G") satisfies the
requirement for proof of filiation and relationship to the
Aguilar spouses under Article 172 of the Family Code.
Petitioner contends that said SSS Form E-1 is a
declaration under oath by his father, Alfredo Aguilar, of
his status as the latter’s son; this recognition should be
accorded more weight than the presumption of
legitimacy, since Article 172 itself declares that said
evidence establishes legitimate filiation without need of
court action. He adds that in contemplation of law,
recognition in a public instrument such as the SSS Form
E-1 is the "highest form of recognition which partake (sic)
of the nature of a complete act of recognition bestowed
upon" him as the son of the late Alfredo Aguilar; that
respondent has no personality to impugn his legitimacy
and cannot collaterally attack his legitimacy; that the
action to impugn his legitimacy has already prescribed
pursuant to Articles 170 and 171 of the Family
Code;23 and that having proved his filiation, mandatory
injunction should issue, and an award of damages is in
order.
Respondent’s Arguments
In her Comment24 and Memorandum,25 respondent
simply echoes the pronouncements of the CA, adding
that the Petition is a mere rehash of the CA appeal which
has been passed upon succinctly by the appellate court.
Our Ruling
The Court grants the Petition.
This Court, speaking in De Jesus v. Estate of Dizon,26 has
held that –
The filiation of illegitimate children, like legitimate
children, is established by (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 thereof, 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. 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
acknowledgment 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. Where, instead, a claim for
recognition is predicated on other evidence merely
tending to prove paternity, i.e., outside of a record of
birth, a will, a statement before a court of record or an
authentic writing, judicial action within the applicable
statute of limitations is essential in order to establish the
child’s acknowledgment.
A scrutiny of the records would show that petitioners
were born during the marriage of their
parents.1âwphi1 The certificates of live birth 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. 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 a 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, and in proper cases Article 171, of the
Family Code (which took effect on 03 August 1988), the
74
action to impugn the legitimacy of a child would no
longer be legally feasible and the status conferred by the
presumption becomes fixed and
unassailable.27 (Emphasis supplied)
Thus, applying the foregoing pronouncement to the
instant case, it must be concluded that petitioner – who
was born on March 5, 1945, or during the marriage of
Alfredo Aguilar and Candelaria Siasat-Aguilar28 and
before their respective deaths29 – has sufficiently proved
that he is the legitimate issue of the Aguilar spouses. As
petitioner correctly argues, Alfredo Aguilar’s SSS Form E-
1 (Exhibit "G") satisfies the requirement for proof of
filiation and relationship to the Aguilar spouses under
Article 172 of the Family Code; by itself, said document
constitutes an "admission of legitimate filiation in a
public document or a private handwritten instrument and
signed by the parent concerned."
Petitioner has shown that he cannot produce his
Certificate of Live Birth since all the records covering the
period 1945-1946 of the Local Civil Registry of Bacolod
City were destroyed, which necessitated the introduction
of other documentary evidence – particularly Alfredo
Aguilar’s SSS Form E-1 (Exhibit "G") – to prove filiation. It
was erroneous for the CA to treat said document as mere
proof of open and continuous possession of the status of
a legitimate child under the second paragraph of Article
172 of the Family Code; it is evidence of filiation under
the first paragraph thereof, the same being an express
recognition in a public instrument.
To repeat what was stated in De Jesus, filiation may be
proved by an admission of legitimate filiation in a public
document or a private handwritten instrument and
signed by the parent concerned, and such due
recognition in any authentic writing is, in itself, a
consummated act of acknowledgment of the child, and
no further court action is required. And, relative to said
form of acknowledgment, the Court has further held that:
In view of the pronouncements herein made, the Court
sees it fit to adopt the following rules respecting the
requirement of affixing the signature of the
acknowledging parent in any private handwritten
instrument wherein an admission of filiation of a
legitimate or illegitimate child is made:
1) Where the private handwritten instrument is
the lone piece of evidence submitted to prove
filiation, there should be strict compliance with
the requirement that the same must be signed
by the acknowledging parent; and
2) Where the private handwritten instrument is
accompanied by other relevant and competent
evidence, it suffices that the claim of filiation
therein be shown to have been made and
handwritten by the acknowledging parent as it
is merely corroborative of such other evidence.
Our laws instruct that the welfare of the child
shall be the "paramount consideration" in
resolving questions affecting him. 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.
It is thus "(t)he policy of the Family Code to liberalize the
rule on the investigation of the paternity and filiation of
children, especially of illegitimate children x x x." Too,
"(t)he State as parens patriae affords special protection to
children from abuse, exploitation and other conditions
prejudicial to their development."30 (Emphasis supplied)
This case should not have been so difficult for petitioner
if only he obtained a copy of his Certificate of Live Birth
from the National Statistics Office (NSO), since the
Bacolod City Civil Registry copy thereof was destroyed.
He would not have had to go through the trouble of
presenting other documentary evidence; the NSO copy
would have sufficed. This fact is not lost on petitioner; the
Certification dated January 27, 1996 issued by the
Bacolod City Civil Registry (Exhibit "Q") contained just
such an advice for petitioner to proceed to the Office of
the Civil Registrar General at the NSO in Manila to secure
a copy of his Certificate of Live Birth, since for every
registered birth in the country, a copy of the Certificate of
Live Birth is submitted to said office.
As to petitioner's argument that respondent has no
personality to impugn his legitimacy and cannot
collaterally attack his legitimacy, and that the action to
impugn his legitimacy has already prescribed pursuant to
Articles 170 and 171 of the Family Code, the Court has
held before that -Article 26331 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.32
75
Finally, if petitioner has shown that he is the legitimate
issue of the Aguilar spouses, then he is as well heir to the
latter's estate. Respondent is then left with no right to
inherit from her aunt Candelaria Siasat-Aguilar's. estate,
since succession pertains, in the first place, to the
descending direct line.33
WHEREFORE, the Petition is GRANTED. The August 30,
2006 Decision and December 20, 2011 Resolution of the
Court of Appeals in CA-G.R. CEB-CV No. 64229, as well as
the August 17, 1999 Decision of the Regional Trial Court
of Bacolod City, Branch 49 in Civil Case No. 96-9591 are
REVERSED and SET ASIDE. Respondent Edna G. Siasat is
hereby ordered to SURRENDER to the petitioner Rodolfo
S. Aguilar the owner's duplicates of Transfer Certificates
of Title Nos. T-25896 and T-(15462) 1070.
SO ORDERED.
G.R. No. 163362 July 8, 2015
ALEJANDRA ARADO HEIRS: JESUSA ARADO, VICTORIANO
ALCORIZA, PEDRO ARADO, HEIRS: JUDITHO ARADO,
JENNIFER ARADO, BOBBIE ZITO ARADO, SHIRLY ABAD,
ANTONIETA ARADO, NELSON SOMOZA, JUVENIL ARADO,
NICETAS VENTULA, and NILA ARADO, PEDRO ARADO,
TOMASA V. ARADO, Petitioners,
vs.
ANACLETO ALCORAN and
ELENETTESUNJACO, Respondents.
DECISION
BERSAMIN, J.:
Under review on certiorari is the decision promulgated
on February 28, 2003,1 whereby the Court of Appeals
(CA) affirmed the judgment rendered on January 15, 1997
by the Regional Trial Court, Branch 43, in Dumaguete City
(RTC)2 dismissing the complaint and the counterclaim for
being without merit.
Antecedents
Raymundo Alcoran (Raymundo) was married to Joaquina
Arado (Joaquina), and their marriage produced a son
named Nicolas Alcoran (Nicolas).3 In turn, Nicolas
married Florencia Limpahan (Florencia),4 but their union
had no offspring. During their marriage, however, Nicolas
had an extramarital affair with Francisca Sarita (Francisca),
who gave birth to respondent Anacleto Alcoran
(Anacleto) on July 13, 19515 during the subsistence of
Nicolas' marriage to Florencia.6 In 1972, Anacleto married
Elenette Sunjaco.7
Raymundo died in 1939, while Nicolas died in 1954.
Likewise, Florencia died in 1960, and Joaquina in 1981.8
Florencia had three siblings, namely: Sulpicio, Braulia and
Veronica Limpahan.9 Joaquina had four siblings, i.e.,
Alejandra, Nemesio, Celedonia and Melania, all surnamed
Arado.10 Nemesio had six children, namely: (1) Jesusa,
who was married to Victoriano Alcoriza; (2) Pedro, who
was married to Tomasa Arado; (3) Teodorico; (4) Josefina;
(5) Gliceria;11 and (6) Felicisima.12 During the pendency of
the case, Pedro died, and was substituted by his
following heirs, to wit: (1) Juditho and his spouse, Jennifer
Ebrole; (2) Bobbie Zito and his spouse, Shirly Abad; (3)
Juvenil and his spouse, Nicetas Ventula; (4) Antonieta and
her spouse, Nelson Somoza; and (5) Nila.
On January 14, 1992, Alejandra, Jesusa, Victoriano
Alcoriza, Pedro and Tomasa filed in the RTC a complaint
for recovery of property and damages (with application
for a writ of preliminary mandatory injunction) against
Anacleto and Elenette.13 Named as unwilling co-plaintiffs
were Sulpicio, Braulia and Veronica Limpahan, along with
Teodorico, Josefina, Gliceria and Felicisima.
The properties subject of the action were the following: (
1) Lot No. 4100, covered by Original Certificate of Title
(OCT) No. OV-1379; (2) Lot No. 4054, covered by OCT
No. OV-1380; (3) a parcel of land covered by Tax
Declaration No. 6065; ( 4) a parcel of land covered by Tax
Declaration No. 20470; (5) a parcel of land covered by
Tax Declaration No. 11-028-A; (6) Lot No. 709 covered by
OCT No. OV-7784; (7) a parcel of land covered by Tax
Declaration No. 87-011-215-A; (8) a parcel of land
covered by Tax Declaration No. 87-011-217; (9) Lot No.
5234 covered by OCT No. 3489-A; and (10) Lot No. 5224
covered by Tax Declaration No. 8-201.14 The parties later
stipulated that the first eight of the subject properties
had previously belonged to Raymundo, while the last two
had been the paraphemal properties of Joaquina.15
The plaintiffs alleged in their complaint that when
Raymundo died in 1939, his properties were inherited by
his son Nicolas alone "as it was during the period of the
old Civil Code, where the spouse could not inherit but
only a share of the usufruct, which was extinguished
upon the death of the usufructuary;"16 that when Nicolas
died in 1954 without issue, half of his properties were
inherited by his wife, Florencia, and the other half by his
mother, Joaquina; that Florencia was, in turn, succeeded
by her siblings Sulpicio, Braulia and Veronica; that during
the marriage of Nicolas and Florencia, the former had an
affair with Francisca, from which affair Anacleto was born,
but it was unknown whether he was the spurious son of
Nicolas; that Nicolas did not recognize Anacleto as his
spurious child during Nicolas' lifetime; hence, Anacleto
was not entitled to inherit from Nicolas; that nonetheless,
76
Anacleto claimed entitlement to the properties as the
heir of Nicolas and by virtue of the will executed by
Joaquina; that the will was void for not having been
executed according to the formalities of the law, and the
same did not reflect the true intention of Joaquina; that
the supposed testator did not acknowledge the will,
which was not submitted for probate; that they were the
rightful heirs to the properties; that notwithstanding their
repeated demands for the return of the properties, the
defendants persistently refused; that a writ of preliminary
mandatory injunction should issue to prevent the
defendants from further violating their rights in the
properties; and that the defendants should be ordered to
reconvey the properties, and to pay ₱20,000.00 as actual
damages, ₱20,000.00 as moral and exemplary damages,
and ₱20,000.00 as attorney's fees.17
In their answer,18 the defendants (respondents herein)
countered that Anacleto was expressly recognized by
Nicolas as the latter's son, a fact evidenced by the
certificate of birth of Anacleto; that Anacleto thus had the
right to inherit the properties from Nicolas; that because
Anacleto was still too young when Nicolas died, the
administration of the properties passed to Anacleto's
grandmother, Joaquina; that Joaquina executed a last will
and testament in Anacleto's favor; that Joaquina's
possession of the properties was for and in behalf of
Anacleto, who had been living with her since his birth;
that such possession began in 1954 when Nicolas died
and continued until Joaquina' s death in 1981; that
Anacleto then took over the possession of the properties
to the exclusion of all others; that granting for the sake of
argument that the plaintiffs had rights in the properties,
the same were already lost through laches, estoppel and
prescription; and that Anacleto was the rightful owner of
the properties, and his ownership and possession should
not be disturbed.
By way of counterclaim, the defendants prayed that the
plaintiffs be ordered to pay ₱50,000.00 as moral
damages, In ,000.00 "as initial expenses as costs of this
litigation which will increase as the case
progresses"19 and Pl0,000.00 as attorney's fees.
Veronica Limpahan and Sulpicio Limpahan likewise filed
their Answer20 to the complaint, stating that they were
not interested in pursuing any claim of ownership in the
properties; that assuming that they were entitled, they
were abandoning their rights, interests, title and
participation in the properties; and that they be excluded
from further court processes.
Judgment of the RTC
On January 15, 1997, the RTC rendered judgment,
decreeing thusly:
Wherefore, premises considered, judgment is hereby
rendered dismissing the complaint and the counterclaim
for lack of merit.
Costs against the plaintiffs.
SO ORDERED.21
The RTC opined that Anacleto established that he was
really the acknowledged illegitimate son of Nicolas. It
cited the certificate of birth of Anacleto (Exhibit 4) and
Page 53, Book 4, Register No. 214 of the Register of
Births of the Municipality of Bacong (Exhibit 3 ), which
proved that Nicolas had himself caused the registration
of Anacleto' s birth by providing the details thereof and
indicating that he was the father of Anacleto. It observed
that the name of Nicolas appeared under the column
"Remarks" in the register of births, which was the space
provided for the name of the informant; that because the
plaintiffs did not present evidence to refute the entry in
the register of births, the entry became conclusive with
respect to the facts contained therein; that Anacleto' s
claim of recognition was bolstered by his baptismal
certificate (Exhibit F), in which was indicated that his
parents were Nicolas Alcoran and Francisca Sarita; that
also presented was a picture taken during the wake of
Nicolas (Exhibit 5) showing the young Anacleto being
carried by Joaquina, and also Nicolas' wife, Florencia; that
in addition, the school records of Anacleto (Exhibit 6)
showed that Joaquina stood as his guardian during his
grade school years; that when Anacleto got married, it
was Joaquina who gave consent to his marriage because
he was then still a minor (Exhibit 8); and that Joaquina
executed her will in 1978 (Exhibit 9), bequeathing the
subject properties to Anacleto, but the will was yet to be
probated. As the case was filed during the effectivity of
the Family Code, the RTC ruled that Articles
172,22 17323 and 17524 of the Family Code allowed
Anacleto to establish his filiation during his lifetime
through the record of his birth appearing in the civil
register. It further ruled that because there were no
legitimate children of Nicolas who contested Anacleto's
right to inherit, the rule on the separation of the
legitimate from the illegitimate family was rendered
irrelevant; and that, accordingly, Anacleto was entitled to
possess the subject properties upon having established
that he was the acknowledged illegitimate son of Nicolas.
Consequently, it also dismissed the defendants'
counterclaim for lack of sufficient basis.
The plaintiffs appealed to the CA.25
Decision of the CA
77
On February 28, 2003, the CA promulgated its Issues
decision,26 affirming the judgment of the RTC in this wise:
In this appeal, the plaintiffs, herein petitioners,29 implore
WHEREFORE, premises considered, the instant appeal is the Court to nullify the assailed rulings of the CA, and to
hereby DISMISSED. Accordingly, the Decision of the determine once and for all the following issues:
Regional Trial Court of Dumaguete City, Branch 43
stands. (a) Whether Anacleto Alcoran is the illegitimate
son of Nicolas Alcoran x x x; and
The CA sustained the ruling of the RTC to the effect that
Anacleto was an acknowledged illegitimate son of (b) Whether he is entitled to the properties in
Nicolas. It agreed that the Register of Births of the litigation.30
Municipality of Bacong, Negros Oriental showed that
Nicolas was the father of Anacleto, and that the former
The petitioners insist that Anacleto was not duly
had supplied the information on the latter's birth. It
recognized as Nicolas' illegitimate son; that inasmuch as
declared that the plaintiffs did not rebut the filiation of
Anacleto was born to Francisca during the subsistence of
Anacleto by contrary evidence; that the baptismal
Nicolas' marriage to Florencia, Anacleto could only be the
certificate of Anacleto and the picture taken during the
spurious child of Nicolas; that there was no law for the
wake of Nicolas further showed that Anacleto had been
acknowledgment of a spurious child; that even if
acknowledged by Nicolas; that based on the Articles 172,
Anacleto would be given the benefit of the doubt and be
173 and 175 of the Family Code, the law applicable at the
considered a natural child, Article 278 of the Civil Code
time of the filing of the case, Anacleto's filiation was
states that "[r]ecognition shall be made in the record of
established by the record of his birth appearing in the
birth, a will, a statement before a court of record, or in
civil register; and that Anacleto possessed rights in the
any authentic writing;" that the appearance of the father's
subject properties.
name in the certificate of birth alone, without his actual
intervention, was insufficient to prove paternity; that the
Anent the successional rights of the parties, the CA mere certificate by the civil registrar that the father
pronounced that after Raymundo died in 1939, his wife, himself registered the child, without the father's
Joaquina, and his son, Nicolas, inherited his properties; signature, was not proof of the father's voluntary
that when Nicolas died in 1954, he was survived by acknowledgment; that the baptismal certificate was
Joaquina (his mother), Florencia (his legitimate wife), and insufficient proof of paternity; and that if there was
Anacleto (his illegitimate son); that Joaquina was entitled ground for Anacleto's recognition, the period to claim
to one-half of Nicolas' estate, and the remaining half recognition already prescribed.
should be divided between Florencia and Anacleto; that
in 1960, when Florencia died without issue, the share she
The petitioners reject the claim of Anacleto that Joaquina
had inherited from Nicolas was inherited by her siblings
bequeathed the subject properties to him by last will and
Sulpicio, Braulia and Veronica; and that when Joaquina
testament. They assail the validity and due execution of
died in 1981, she was survived by her sibling Alejandra;
the will, which was not submitted for probate; that the
her nieces Jesusa,27 Josefina, Gliceria and Felicisima; her
joint affidavit allegedly executed in favor of Anacleto by
nephews Pedro and Teodorico; and her illegitimate
Sulpicio, Braulia and Veronica Limpahan, with Josefina,
grandson, Anacleto.
Gliceria and Felicisima Arado, whereby they ceded their
rights in the subject properties in favor of Anacleto, was
The CA declared that the plaintiffs were already barred unwarranted; and that the veracity of the affidavit was
from asserting their rights in the properties by estoppel doubtful because it was purportedly inconsistent with
by laches; that Joaquina had executed her last will and Anacleto' s stance that he had inherited the properties in
testament on April 19, 1978, whereby she bequeathed his own right.
her properties to Anacleto; that the properties were thus
transmitted to Anacleto upon her death in 1981; that the
In turn, the defendants, herein respondents, counter that
plaintiffs filed their complairtt in the RTC only on January
Nicolas recognized Anacleto as his illegitimate child
14, 1992; that it would be unjust to award the subject
because Nicolas had himself caused the registration of
properties to the plaintiffs who had slept on their rights
Anacleto's birth; that the petitioners' allegation of
for a long time; and that the plaintiffs could probably
prescription lacked basis inasmuch as Anacleto was not
pursue their claim in the appropriate intestate or testate
seeking compulsory recognition; and that Anacleto had
proceedings.
already been voluntarily recognized by Nicolas as his
illegitimate son.
The plaintiffs filed a Motion for Reconsideration,28 but the
CA denied their motion on March 24, 2004.

78
Ruling of the Court
We affirm the dismissal of the petitioners' complaint by
the RTC, albeit for different reasons.
The complaint filed by the petitioners in the RTC to
recover the subject properties is properly characterized
as an accion reivindicatoria. According to Caneza v.
Bautista,31 an "[a}ccion reivindicatoria seeks the recovery
of ownership and includes the jus utendi and the }us
fruendi brought in the proper regional trial court. Accion
reivindicatoria is an action whereby plaintiff alleges
ownership over a parcel of land and seeks recovery of its
full possession." In essence, the petitioners seek to put an
end to Anacleto's possession of the properties on the
basis of their being the rightful heirs considering that
Anacleto, being the spurious child of Nicolas, held no
successional rights in the estate of Nicolas.
The burden of proof to establish the averments of the
complaint by preponderance of evidence pertained to
the petitioners as the plaintiffs. In that regard, we have
discoursed on preponderance of evidence in Amoroso v.
Alegre, Jr.,32 thusly:
"Preponderance of evidence" is the weight, credit, and
value of the aggregate evidence on either side and is
usually considered to be synonymous with the term
"greater weight of the evidence" or "greater weight of
the credible evidence." Preponderance of evidence is a
phrase which, in the last analysis, means probability of
the truth. It is evidence which is more convincing to the
court as worthy of belief than that which is offered in
opposition thereto. If plaintiff claims a right granted or
created by law, he must prove his claim by competent
evidence. He must rely on the strength of his own
evidence and not upon the weakness of that of his
opponent. (Bold underscoring for emphasis)
The petitioners did not discharge their burden of proof.
At the outset, the Court affirms the holding by the RTC
and the CA that the provisions of the Family
Code33 should apply because the petitioners' complaint
was filed, litigated and decided by the RTC during the
effectivity of the Family Code. Under the Family Code, the
classification of children is limited to either legitimate or
illegitimate.34 Illegitimate filiation is proved in accordance
with Article 175 of the Family Code, to wit:
ART. 175. Illegitimate children may establish their
illegitimate filiation in the same way and on the same
evidence as legitimate 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.
On the other hand, legitimate filiation is established in
accordance with Articles 172 and 173 of the Family Code,
which state:
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. 173. The action to claim legitimacy may be brought
by the child during his or her lifetime and shall be
transmitted to the heirs should the child die during
minority or in a state of insanity. In these cases, the heirs
shall have a period of five years within which to institute
the action.
The action already commenced by the child shall survive
notwithstanding the death of either or both of the
parties.
Rightly enough, the RTC and the CA unanimously
concluded that Nicolas had duly acknowledged Anacleto
as his illegitimate son. The birth certificate of Anacleto
appearing in the Register of Births of the Municipality of
Bacong, Negros Oriental (Exhibits 3, 3-A) showed that
Nicolas had himself caused the registration of the birth of
Anacleto. The showing was by means of the name of
Nicolas appearing in the column "Remarks" in Page 53,
Book 4, Register No. 214 of the Register of Births. Based
on the certification (Exhibit 3-B) issued by the Local Civil
Registrar of the Municipality of Bacong, Negros Oriental,
the column in the Register of Births entitled "Remarks"
(Observaciones) was the space provided for the name of
79
the informant of the live birth to be registered.
Considering that Nicolas, the putative father, had a direct
hand in the preparation of the birth certificate, reliance
on the birth certificate of Anacleto as evidence of his
paternity was fully warranted.35
Anacleto's baptismal certificate (Exhibit 7) was of no
consequence in determining his filiation. We have already
held in Cabatania v. Court of Appeals36 that "while a
baptismal certificate may be considered a public
document, it can only serve as evidence of the
administration of the sacrament on the date specified but
not the veracity of the entries with respect to the child's
paternity;" and that baptismal certificates were "per se
inadmissible in evidence as proof of filiation," and thus
"cannot be admitted indirectly as circumstantial evidence
to prove [filiation]." Hence, we attach no probative value
to the baptismal certificate as proof of the filiation of
Anacleto.
The weight accorded by the R TC and the CA to the
picture depicting the young Anacleto in the arms of
Joaquina as she stood beside the coffin of the departed
Nicolas (Exhibit 5) was also undeserved. At best, the
picture merely manifested that it was Joaquina who had
acknowledged her filiation with Anacleto. Cautioning
against the admission in evidence of a picture of similar
nature, we have pointed out in Solinap v. Locsin, Jr.37 that:
[R]espondent's photograph with his mother near the
coffin of the late Juan C. Locsin cannot and will not
constitute proof of filiation, lest we recklessly set a very
dangerous precedent that would encourage and sanction
fraudulent claims. Anybody can have a picture taken
while standing before a coffin with others and thereafter
utilize it in claiming the estate of the deceased.
The school records of Anacleto (Exhibit 6), which evinced
that Joaquina was the guardian of Anacleto in his grade
school years, and the marriage contract between
Anacleto and Elenette (Exhibits 8 to 8-C), which indicated
that Joaquina had given consent to Anacleto's marriage,
did not have the evidentiary value accorded by the RTC
and the CA. Joaquina's apparent recognition of Anacleto
mattered little, for, as we stressed in Cenido v.
Apacionado,38 the recognition "must be made personally
by the parent himself or herself, not by any brother, sister
or relative; after all, the concept of recognition speaks of
a voluntary declaration by the parent, of if the parent
refuses, by judicial authority, to establish the paternity or
maternity of children born outside wedlock."
The lack of probative value of the respondents' aforecited
corroborative evidence notwithstanding, Anacleto 's
recognition as Nicolas' illegitimate child remained
beyond question in view of the showing that Nicolas had
personally and directly acknowledged Anacleto as his
illegitimate son.
How should the acknowledgment of Anacleto by Nicolas
affect the respective rights of the parties in relation to the
specific properties subject of the complaint?
To recall, the parties stipulated that the first eight of the
subject properties had previously belonged to
Raymundo, while the remaining two had been the
paraphernal properties of Joaquina.
With Raymundo having died in 1939, the Spanish Civil
Code of 1889 was the governing law on succession.
Under Article 807 thereof,39 Joaquina and Nicolas, i.e., the
surviving spouse and the legitimate son of Raymundo,
were the forced heirs who acquired legal title to
Raymundo's estate upon his death. In accordance with
Article 834 thereof,40 Nicolas was entitled to inherit the
entire estate of Raymundo, while Joaquina was entitled
to a portion in usufruct equal to the one third portion
available for betterment.
When Nicolas died in 1954, the Civil Code of the
Philippines was already in effect.41 Under Article 1000
thereof,42 the heirs entitled to inherit from Nicolas's
estate were Joaquina (his mother), Florencia (his surviving
spouse), and Anacleto (his acknowledged illegitimate
son). Said heirs became co-owners of the properties
comprising the entire estate of Nicolas prior to the
estate's partition in accordance with Article 107843 of the
Civil Code.
Anacleto had an established right to inherit from Nicolas,
whose estate included the first eight of the subject
properties that had previously belonged to Raymundo
Anacleto became a co-owner of said properties, pro
indiviso, when Nicolas died in 1954.44 Likewise, Joaquina
succeeded to, and became a pro indiviso co-owner of,
the properties that formed part of the estate of Nicolas.
When Joaquina died in 1981, her hereditary estate
included the two remaining properties, as well as her
share in the estate of Nicolas. Inasmuch as Joaquina died
without any surviving legitimate descendant, ascendant,
illegitimate child or spouse, Article 100345 of the Civil
Code mandated that her collateral relatives should inherit
her entire estate.
Contrary to the rulings of the lower courts, Anacleto was
barred by law from inheriting from the estate of
Joaquina.1âwphi1 To start with, Anacleto could not
inherit from Joaquina by right of representation of
Nicolas, the legitimate son of Joaquina.46 Under Article
992 of the Civil Code, an illegitimate child has no right to
inherit ab intestato from the legitimate children and
80
relatives of his father or mother; in the same manner,
such children or relatives shall not inherit from the
illegitimate child. As certified in Diaz v. Intermediate
Appellate Court,47 the right of representation is not
available to illegitimate descendants of legitimate
children in the inheritance of a legitimate grandparent.
And, secondly, Anacleto could not inherit from the estate
of Joaquina by virtue of the latter's last will and
testament, i.e., the Katapusan Tugon (Testamento)
(Exhibit K). Article 838 of the Civil Code dictates that no
will shall pass either real or personal property unless the
same is proved and allowed in accordance with the Rules
of Court. We have clarified in Gallanosa v. Arcangel48 that
in order that a will may take effect, "it has to be probated,
legalized or allowed in the proper testamentary
proceeding. The probate of the will is mandatory." It
appears that such will remained ineffective considering
that the records are silent as to whether it had ever been
presented for probate, and had been allowed by a court
of competent jurisdiction. The petitioners alleged this fact
in their complaint, and the respondents did not
controvert the allegation. In the absence of proof
showing that the supposed will of Joaquina had been
duly approved by the competent court, we hold that it
had not been so approved. Hence, we cannot sustain the
CA' s ruling to the effect that Joaquina had bequeathed
her properties to Anacleto by will, and that the properties
had been transmitted to him upon her death.
thus formed among the co-owners of the estate or co-
heirs while it remains undivided.
Without the showing that the respective estates of
Raymundo, Nicolas and Joaquina had been previously
partitioned, the Court concludes and holds that none of
the parties herein can lay claim over any of the disputed
specific properties. The petitioners cannot contend,
therefore, that they were the rightful owners of the
properties of the late Joaquina to the exclusion of
Anacleto. Thus, we uphold the dismissal of the
petitioners' complaint for recovery of such properties.
WHEREFORE, the Court AFFIRMS the decision
promulgated on February 28, 2003 by the Court of
Appeals; and ORDERS the petitioners to pay the costs of
suit.
SO ORDERED.
G.R. No. 197099
EUGENIO SAN JUAN GERONIMO, Petitioner,
vs.
KAREN SANTOS, Respondent.
DECISION

As the petitioners were among the collateral relatives of

VILLARAMA, JR., J.:
Joaquina, they are the ones entitled to inherit from her
estate.
At bar is a petition for review on certiorari of the
Decision1 and Resolution2 of the Court of Appeals (CA) in
Nonetheless, the petitioners' appeal still fails because the
CA-G.R. CV No. 88650 promulgated on January 17, 2011
parties did not establish that the estates of Raymundo,
and May 24, 2011, respectively, which affirmed the
Nicolas and Joaquina had been respectively settled with
Decision3 of the Regional Trial Court (RTC) of Malolos
finality through the appropriate testate or intestate
City, Bulacan, Branch 8. Both courts a quo ruled that the
proceedings, and partitioned in due course. Unless there
subject document titled Pagmamana sa Labas ng
was a proper and valid partition of the assets of the
Hukuman is null and void, and ordered herein petitioner
respective estates of Raymundo, Nicolas and Joaquina,
Eugenio San Juan Geronimo (Eugenio), who was
whether extrajudicially or judicially, their heirs could not
previously joined by his brother Emiliano San Juan
adjudicate unto themselves and claim specific portions of
Geronimo (Emiliano) as codefendant, to vacate the one-
their estates, because, as we have declared in Carvajal v.
half portion of the subject 6,542-square meter property
Court of Appeals:49
and surrender its possession to respondent Karen Santos.
In a Resolution4 dated November 28, 2011, this Court
x x x Unless a project of partition is effected, each heir ordered the deletion of the name of Emiliano from the
cannot claim ownership over a definite portion of the title of the instant petition_ as co-petitioner, viz.:
inheritance. Without partition, either by agreement
between the parties or by judicial proceeding, a co-heir
x x x The Court resolves:
cannot dispose of a specific portion of the estate. For
where there are two or more heirs, the whole estate of
the decedent is, before its partition, owned in common xxxx
by such heirs. Upon the death of a person, each of his
heirs becomes the undivided owner of the whole estate (2) to AMEND the title of this petition to read "Eugenio
left with respect to the part or portion which might be San Juan Geronimo, petitioner vs. Karen Santos,
adjudicated to him, a community of ownership being respondent," considering the sworn statement of

81
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
82
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
facie presumption 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
83
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
84
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
85
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
86
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 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 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 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."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),28 petitioner
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
87
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.
88
 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 simulation of the child's birth or
falsification of his or her birth certificate, which is a public
document.(emphasis ours)
Furthermore, it is well-settled that a record of birth is
merely a prima facie evidence of the facts contained
therein. It is not conclusive evidence of the truthfulness
of the statements made there by the
interestedparties. Following the logic of Benitez,
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
89
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 dated January 17, 2011 and May
24, 2011, respectively, are REVERSED and SET ASIDE. The
Complaint in Civil Case No. 268-M-2001 for Annulment
of Document and Recovery of Possession is hereby
ordered DISMISSED.
With costs against the respondent.
SO ORDERED.
G.R. No. 191936, June 01, 2016
VIRGINIA D. CALIMAG, Petitioner, v. HEIRS OF SILVESTRA
N. MACAPAZ, REPRESENTED BY ANASTACIO P. MACAPAZ,
JR., Respondents.
DECISION
REYES, J.:
This is a petition for review on certiorari1 assailing the
Decision2 of the Court of Appeals (CA) promulgated on
October 20, 2009 in CA-G.R. CV No. 90907 which
affirmed with modification the Decision3 dated
September 28, 2007 of the Regional Trial Court (RTC) of
Makati City, Branch 147, in Civil Case No. 06-173, an
action for annulment of deed of sale and cancellation of
title with damages. The CA Resolution4 dated April 5,
2010 denied the motion for reconsideration thereof.
The Facts
Virginia D. Calimag (petitioner) co-owned the property,
the subject matter of this case, with Silvestra N. Macapaz
(Silvestra).
On the other hand, Anastacio P. Macapaz, Jr. (Anastacio,
Jr.) and Alicia Macapaz-Ritua (Alicia) (respondents) are
the children of Silvestra's brother, Anastacio Macapaz, Sr.
(Anastacio, Sr.) and Fidela O. Poblete Vda. de Macapaz
(Fidela).
The subject property, with a total area of 299 square
meters, is located at No. 1273 Bo. Visaya Street, Barangay
Guadalupe Nuevo, Makati City, and was duly registered
in the names of the petitioner (married to Demetrio
Calimag) and Silvestra under Transfer Certificate of Title
(TCT) No. 183088.5 In said certificate of title, appearing as
Entry No. 02671 is an annotation of an Adverse Claim of
Fidela asserting rights and interests over a portion of the
said property measuring 49.5 sq m.6
On November 11, 2002, Silvestra died without issue. On
July 7, 2005, TCT No. 183088 was cancelled and a new
certificate of title, TCT No. 221466,7 was issued in the
name of the petitioner by virtue of a Deed of Sale8 dated
January 18, 2005 whereby Silvestra allegedly sold her 99-
sq-m portion to the petitioner for P300,000.00. Included
among the documents submitted for the purpose of
cancelling TCT No. 183088 was an Affidavit9 dated July
12, 2005 purportedly executed by both the petitioner and
Silvestra. It was stated therein that the affidavit of
adverse claim filed by Fidela was not signed by the
Deputy Register of Deeds of Makati City, making the
same legally ineffective. On September 16, 2005, Fidela
passed away.10
On December 15, 2005, Anastacio, Jr. filed a criminal
complaint for two counts of falsification of public
documents under Articles 171 and 172 of the Revised
Penal Code against the petitioner.11 However, said
criminal charges were eventually dismissed.
On March 2, 2006, the respondents, asserting that they
are the heirs of Silvestra, instituted the action
for Annulment of Deed of Sale and Cancellation of TCT
No. 221466 with Damages against the petitioner and the
Register of Deeds of Makati City.12
In her Answer with Compulsory Counterclaim,13 the
petitioner averred that the respondents have no legal
capacity to institute said civil action on the ground that
they are illegitimate children of Anastacio, Sr. As such,
they have no right over Silvestra's estate pursuant to
Article 992 of the Civil Code which prohibits illegitimate
children from inheriting intestate from the legitimate
children and relatives of their father and mother.
After trial, the RTC found for the respondents and
rendered its Decision on September 28,
2007.14 The fallo of the RTC decision reads:
WHEREFORE, premises considered, judgment is rendered
as follows:
90
 1. Declaring the Deed of Sale purportedly
executed by [Silvestra] in favor of [the
petitioner] on January 18, 2005 over a parcel of
land covered by TCT No. 183088 of the Registry
of Deeds of Makati City, as Null and Void;
2. Ordering the Registrar of Deeds of Makati City
to cancel TCT No. 221466 issued in the name of
[the petitioner], the same having been issued
on the basis of a fraudulent/falsified Deed of
Sale, and thereafter to reinstate TCT No. 183088
issued in the name of [the petitioner] and
[Silvestra] with all the liens and encumbrances
annotated thereon, including the adverse claim
of [Fidela]; [and]
3. Ordering [the petitioner] to pay the
[respondents] the sum of PI00,000.00 as moral
damages and another P100,000.00 as
exemplary damages, P50,000.00 as and by way
of attorney's fees, plus costs of suit.
[The petitioner's] counter-claim is dismissed for lack of
merit.
SO ORDERED.15
The RTC found that the Deed of Sale dated January 18,
2005 presented for the cancellation of TCT No. 183088
was a forgery considering that Silvestra, who purportedly
executed said deed of sale died on November 11, 2002,
about three years before the execution of the said Deed
of Sale.16 Respecting the respondents' legal capacity to
sue, the RTC favorably ruled in this wise:
Demetrio Calimag, Jr. sought, but failed, to impugn the
personality of the [respondents] to initiate this action as
the alleged heirs of [Silvestra]. The marriage between
[Anastacio Sr.J and [FidclaJ is evidenced by the Certificate
of (canonical) Marriage (Exh. "M"). The name 'Fidela Obera
Poblete' is indicated in [the respondents'] respective birth
certificates as the mother's maiden name but Fidela
signed the same as the informant as "Fidela P. Macapaz".
In both birth certificates, "Anastacio Nator Macapaz" is
indicated as the name of the father.17 (Emphasis ours)
Ruling of the CA
Aggrieved, the petitioner elevated her case to the CA
resting on the argument that the respondents are
without legal personality to institute the civil action for
cancellation of deed of sale and title on the basis of their
claimed status as legitimate children of Anastacio, Sr., the
brother and sole heir of the deceased, Silvestra.18
On October 20, 2009, the CA rendered its Decision
affirming the RTC decision with modification as to the
amount of damages. The fallo of the assailed decision
reads:
WHEREFORE, premises considered, the present appeal is
hereby DISMISSED, for lack of merit. The Decision dated
September 28, 2007 of the [RTC] of Makati City, Branch
147 in Civil Case No. 06-173 is hereby AFFIRMED with
MODIFICATION in that the award of moral and
exemplary damages is hereby reduced from PI00,000.00
to P50,000.00, respectively.
With costs against the [petitioner].
SO ORDERED.19
The CA sustained the RTC ruling that the cancellation of
TCT No. 183088 and the issuance of TCT No. 221466 in
the name of the petitioner were obtained through
forgery. As to the question of whether the respondents
are legal heirs of Silvestra and thus have the legal
capacity to institute the action, the CA ruled in this wise:
Reviewing the evidence on record, we concur with the
trial court in sustaining the appellees' legitimate filiation
to Silvestra's brother [Anastacio, Sr.] The trial court found
unsuccessful the attempt of Atty. Demetrio Calimag, Jr. to
assail the validity of marriage between [Anastacio, Sr.]
and [Fidela] with a certification from the NSO that their
office has no record of the certificate of marriage of
[Anastacio, Sr.] and [Fidela], and further claiming the
absence of a marriage license.
The best proof of marriage between man and wife is a
marriage contract. A certificate of marriage issued by the
Most Holy Trinity Parish, Alang[-]alang, Leyte (Exh. "M")
as well as a copy of the marriage contract were duly
submitted in evidence by the [respondents].
x x x x
The Marriage Contract (Exh. "U") in this case clearly
reflects a marriage license number and in the absence of
a certification from the local civil registrar that no such
marriage license was issued, the marriage between
[Anastacio, Sr.] and [Fidela] may not be invalidated on
that ground.
x x x.
x x x x
Every intendment of the law leans toward legalizing
matrimony. Persons dwelling together in apparent
matrimony are presumed, in the absence of any
counterpresumption or evidence special to the case, to
be in fact married. This jurisprudential attitude towards
91
marriage is based on the prima facie presumption that a
man and a woman deporting themselves as husband and
wife have entered into a lawful contract of marriage. The
Courts look upon this presumption with great favor. It is
not to be lightly repelled; on the contrary, the
presumption is of great weight.
Here, the fact of marriage between [Anastacio, Sr.] and
[Fidela] was established by competent and substantial
proof. [The respondents] who were conceived and born
during the subsistence of said marriage are therefore
presumed to be legitimate children of [Anastacio, Sr.], in
the absence of any contradicting evidence.20 (Citations
omitted)
The petitioner sought reconsideration,21 but her motion
was denied in the Resolution22 dated April 5, 2010.
Hence, this petition.
Notably, even before the CA, the petitioner never assailed
the factual finding that forgery was indeed committed to
effect the cancellation of TCT No. 183088 and the
consequent transfer of title of the property in her name.
Verily, in this petition, the petitioner continues to assail
the legal capacity of the respondents to institute the
present action. Invoking the provisions of Article 992 of
the Civil Code,23 the petitioner insists that the
respondents have no legal right over the estate left by
Silvestra for being illegitimate children of Anastacio, Sr.
While the petitioner does not question that Anastacio, Sr.
is the legal heir of Silvestra, she, however, claims that the
respondents failed to establish their legitimate filiation to
Anastacio, Sr. considering that the marriage between
Anastacio, Sr. and Fidela was not sufficiently proven.
According to the petitioner, the marriage
contract24 presented by the respondents is not
admissible under the Best Evidence Rule for being a mere
fax copy or photocopy of an alleged marriage contract,
and which is not even authenticated by the concerned
Local Civil Registrar. In addition, there is no mark or
stamp showing that said document was ever received by
said office. Further, while the respondents also presented
a Certificate of (Canonical) Marriage,25 the petitioner
asserts that the same is not the marriage license required
under Articles 3 and 4 of the Family Code;26 that said
Certificate of (Canonical) Marriage only proves that a
marriage ceremony actually transpired between
Anastacio, Sr. and Fidela.27cralawred
Moreover, the petitioner contends that the certificates of
live birth of the respondents do not conclusively prove
that they are legitimate children of Anastacio, Sr.
In their Comment,28 the respondents reiterate the finding
and ruling of the CA that the petitioner's argument has
no leg to stand on considering that one's legitimacy can
only be questioned in a direct action seasonably filed by
a party who is related to the former either by
consanguinity or affinity.29
Thereupon, the resolution of this case rests upon this
fundamental issue: whether or not the respondents are
legal heirs of Silvestra.
Ruling of the Court
The petition is bereft of merit.
While it is true that a person's legitimacy can only be
questioned in a direct action seasonably filed by the
proper party, as held in Spouses Fidel v. Hon. CA, et
al.,30 this Court however deems it necessary to pass upon
the respondents' relationship to Silvestra so as to
determine their legal rights to the subject property.
Besides, the question of whether the respondents have
the legal capacity to sue as alleged heirs of Silvestra was
among the issues agreed upon by the parties in the pre-
trial.
At first blush, the documents presented as proof of
marriage between Anastacio, Sr. and Fidela, viz: (1) fax or
photo copy of the marriage contract, and (2) the
canonical certificate of marriage, cannot be used as legal
basis to establish the fact of marriage without running
afoul with the Rules on Evidence of the Revised Rules of
Court. Rule 130, Section 3 of the Rules on Evidence
provides that: "When the subject of the inquiry is the
contents of a document, no evidence shall be admissible
other than the original document itself, x x x."
Nevertheless, a reproduction of the original document
can still be admitted as secondary evidence subject to
certain requirements specified by law. In Dantis v.
Maghinang, Jr.,31 it was held that:
A secondary evidence is admissible only upon
compliance with Rule 130, Section 5, which states that:
when the original has been lost or destroyed, or cannot
be produced in court, the offeror, upon proof of its
execution or existence and the cause of its unavailability
without bad faith on his part, may prove its contents by a
copy, or by a recital of its contents in some authentic
document, or by the testimony of witnesses in the order
stated. Accordingly, the offeror of the secondary
evidence is burdened to satisfactorily prove the
predicates thereof, namely: (1) the execution or existence
of the original; (2) the loss and destruction of the original
or its non-production in court; and (3) the unavailability
of the original is not due to bad faith on the part of the
proponent/offeror. Proof of the due execution of the
document and its subsequent loss would constitute the
basis for the introduction of secondary evidence, x x
x.32 (Citation omitted)
92
On the other hand, a canonical certificate of marriage is
not a public document. As early as in the case of United
States v. Evangelista,33 it has been settled that church
registries of births, marriages, and deaths made
subsequent to the promulgation of General Orders No.
68 and the passage of Act No. 190 are no longer public
writings, nor are they kept by duly authorized public
officials.34 They are private writings and their authenticity
must therefore be proved as are all other private writings
in accordance with the rules of evidence.35 Accordingly,
since there is no showing that the authenticity and due
execution of the canonical certificate of marriage of
Anastacio, Sr. and Fidela was duly proven, it cannot be
admitted in evidence.
Notwithstanding, it is well settled that other proofs can
be offered to establish the fact of a solemnized
marriage.36 Jurisprudence teaches that the fact of
marriage may be proven by relevant evidence other than
the marriage certificate. Hence, even a person's birth
certificate may be recognized as competent evidence of
the marriage between his parents.37
Thus, in order to prove their legitimate filiation, the
respondents presented their respective Certificates of
Live Birth issued by the National Statistics Office38 where
Fidela signed as the Informant in item no. 17 of both
documents.
A perusal of said documents shows that the respondents
were apparently born to the same parents — their
father's name is Anastacio Nator Macapaz, while their
mother's maiden name is Fidela Overa Poblete. In item
no. 24 thereof where it asks: "24. DATE AND PLACE OF
MARRIAGE OF PARENTS (For legitimate birth)" it was
stated therein that respondents' parents were married on
"May 25, 1955 in Alang-alang, Leyte."39
The petitioner asserts that said documents do not
conclusively prove the respondents' legitimate filiation,
albeit, without offering any evidence to the contrary. The
certificates of live birth contain no entry stating whether
the respondents are of legitimate or illegitimate filiation,
making said documents unreliable and unworthy of
weight and value in the determination of the issue at
hand.
Moreover, the petitioner states that in the respondents'
certificates of live birth, only the signature of Fidela
appears, and that they were not signed by Anastacio, Sr.
She argues that the birth certificate must be signed by
the father in order to be competent evidence to establish
filiation, whether legitimate or illegitimate,
invoking Roces v. Local Civil Registrar of Manila40 where it
was held that a birth certificate not signed by the alleged
father is not competent evidence of paternity.41
The petitioner's contentions are untenable.
"A certificate of live birth is a public document that
consists of entries (regarding the facts of birth) in public
records (Civil Registry) made in the performance of a
duty by a public officer (Civil Registrar)."42 Thus, being
public documents, the respondents' certificates of live
birth are presumed valid, and are prima facie evidence of
the truth of the facts stated in them.43
"Prima facie evidence is defined as evidence good and
sufficient on its face. Such evidence as, in the judgment
of the law, is sufficient to establish a given fact, or the
group or chain of facts constituting the party's claim or
defense and which if not rebutted or contradicted, will
remain sufficient."44
The petitioner's assertion that the birth certificate must
be signed by the father in order to be a competent
evidence of legitimate filiation does not find support in
law and jurisprudence. In fact, the petitioner's reliance
on Roces45 is misplaced considering that what was
sought to be proved is the fact of paternity of an
illegitimate child, and not legitimate filiation.
Verily, under Section 5 of Act No. 3753,46 the declaration
of either parent of the new-born legitimate child shall be
sufficient for the registration of his birth in the civil
register, and only in the registration of birth of an
illegitimate child does the law require that the birth
certificate be signed and sworn to jointly by the parents
of the infant, or only by the mother if the father refuses
to acknowledge the child.
The pertinent portion of Section 5 of Act No. 3753 reads:
Sec. 5. Registration and Certification of Birth. - The
declaration of the physician or midwife in attendance at
the birth or, in default thereof, the declaration of cither
parent of the newborn child, shall be sufficient for the
registration of a birth in the civil register. Such declaration
shall be exempt from the 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 newly
born child.
In such declaration, the persons 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; if) and such other data
as may be required in the regulations to be issued.
x x x x
93

In case of an illegitimate child, the birth certificate shall be
signed and sworn to jointly by the parents of the infant or
only the mother if the father refuses. In the latter case, it
shall not be permissible to state or reveal in the
document the name of the father who refuses to
acknowledge the child, or to give therein any information
by which such father could be identified, x x x (Emphasis
Ours)
Forsooth, the Court finds that the respondents'
certificates of live birth were duly executed consistent
with the provision of the law respecting the registration
of birth of legitimate children. The fact that only the
signatures of Fidela appear on said documents is of no
moment because Fidela only signed as
the declarant or informant of the respondents' fact of
birth as legitimate children.
Nonetheless, the respondents' certificates of live birth
also intimate that Anastacio, Sr. and Fidela had openly
cohabited as husband and wife for a number of years, as
a result of which they had two children — the second
child, Anastacio, Jr. being born more than three years
after their first child, Alicia. Verily, such fact is admissible
proof to establish the validity of marriage. Court
Resolution dated February 13, 2013 in GR. No. 183262
entitled Social Security System (SSS) v. Lourdes S.
Enobiso47 had the occasion to state:
Sarmiento v. CA is instructive anent the question of what
other proofs can be offered to establish the fact of a
solemnized marriage, viz:
chanRoblesvirtualLawlibrary
In Trinidad vs. Court of Appeals, et al., this Court ruled
that as proof of marriage may be presented: a) testimony
of a witness to the matrimony; b) the couple's public and
open cohabitation as husband and wife after the alleged
wedlock; c) the birth and baptismal certificate of children
born during such union; and d) the mention of such
nuptial in subsequent documents.48 (Citations omitted
and emphasis ours)
Moreover, in a catena of cases,49 it has been held
that, "[p]ersons dwelling together in apparent matrimony
are presumed, in the absence of any counter
presumption or evidence special to the case, to be in fact
married. The reason is that such is the common order of
society, and if the parties were not what they thus hold
themselves out as being, they would be living in the
constant violation of decency and of law. A presumption
established by our Code of Civil Procedure is 'that a man
and a woman deporting themselves as husband and wife
have entered into a lawful contract of marriage.' Semper
praesumitur pro matrimonio — Always presume
marriage."50
Furthermore, as the established period of cohabitation of
Anastacio, Sr. and Fidela transpired way before the
effectivity of the Family Code, the strong presumption
accorded by then Article 220 of the Civil Code in favor of
the validity of marriage cannot be disregarded. Thus:
Art. 220. In case of doubt, all presumptions favor the
solidarity of the family. Thus, every intendment of law or
facts leans toward the validity of marriage, the
indissolubility of the marriage bonds, the legitimacy of
children, the community of property during marriage, the
authority of parents over their children, and the validity
of defense for any member of the family in case of
unlawful aggression.
WHEREFORE, premises considered, the petition is
hereby DENIED. The Decision dated October 20, 2009
and Resolution dated April 5, 2010 of the Court of
Appeals in CA-G.R. CV No. 90907 are AFFIRMED.
SO ORDERED.
Begun and held in Metro Manila, on Monday, the twenty-
second day of July, two thousand three.
Republic Act No. 9255 February 24 2004
AN ACT ALLOWING ILLEGITIMATE CHILDREN TO USE THE
SURNAME OF THEIR FATHER, AMENDING FOR THE
PURPOSE ARTICLE 176 OF EXECUTIVE ORDER NO. 209,
OTHERWISE KNOWN AS THE "FAMILY CODE OF THE
PHILIPPINES"
Be it enacted by the Senate and House of
Representatives of the Philippine Congress Assembled:
SECTION 1. Article 176 of Executive Order No. 209,
otherwise known as the Family Code of the Philippines, is
hereby amended to read as follows:
"Article 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 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. 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."
94
SECTION 2. Repealing Clause. – All laws, presidential
decrees, executive orders, proclamations, rules and
regulations, which are inconsistent with the provisions of
this Act are hereby repealed or modified accordingly.
SECTION 3. Effectivity Clause. – This Act shall take effect
fifteen (15) days from its publication in the Official
Gazette or in two (2) newspapers of general circulation.
REPUBLIC ACT. NO. 9858
AN ACT PROVIDING FOR THE LEGITIMATION OF
CHILDREN BORN TO PARENTS BELOW MARRYING AGE,
AMENDING FOR THE PURPOSE THE FAMILY CODE OF THE
PHILIPPINES, AS AMENDED
Be it enacted by the Senate and House of
Representatives of the Philippines in Congress
assembled:
Section 1. Article 177 of Executive Order No. 209,
otherwise known as the "Family Code of the Philippines",
as amended, is hereby further amended to read as
follows:
"Art. 177. Children conceived and born outside of
wedlock of parents who, at the time of conception of the
former, were not disqualified by any impediment to
marry each other, or were so disqualified only because
either or both of them were below eighteen (18) years of
age, may be legitimated."
"Art. 178. Legitimation shall take place by a subsequent
valid marriage between parents. The annulment of a
voidable marriage shall not affect the legitimation."
Section 2. Implementing Rules. – The civil Registrar
General shall, in consultation with the chairpersons of the
Committee on Revision of Laws of the House of
Representatives and the Committee on Youth, Women
and Family Relations of the Senate, the Council for the
Welfare of Children, the Department of Justice (DOJ), the
Department of Foreign Affairs (DFA), the office of the
Supreme Court Administrator, the Philippine Association
of Civil Registrars (PACR) and the UP Law Center, issue
the necessary rules/regulations for the effective
implementation of this Act not later than one (1) month
from its effectivity.
Section 3. Repealing Clause. – All laws, presidential
decrees, executive orders, proclamations and/or
administrative regulations which are inconsistent with the
provisions of this Act are hereby amended, modified,
superseded or repealed accordingly.
Section 4. Effectivity Clause. – This Act shall take effect
fifteen (15) days after its complete publication in the
Official Gazette or in at least two (2) newspapers of
national circulation.
Republic Act 8043
The Inter-Country Adoption Act of 1995
"AN ACT ESTABLISHING THE RULES TO GOVERN INTER-
COUNTRY ADOPTION OF FILIPINO CHILDREN, AND FOR
OTHER PURPOSES"
Section 1. Short Title. — This Act shall be known as
the "Inter-Country Adoption Act of 1995."
Sec. 2. Declaration of Policy. — It is hereby declared the
policy of the State to provide every neglected and
abandoned child with a family that will provide such child
with love and care as well as opportunities for growth
and development. Towards this end, efforts shall be
exerted to place the child with an adoptive family in the
Philippines. However, recognizing that inter-country
adoption may be considered as allowing aliens not
presently allowed by law to adopt Filipino children if such
children cannot be adopted by qualified Filipino citizens
or aliens, the State shall take measures to ensure that
inter-country adoptions are allowed when the same shall
prove beneficial to the child's best interests, and shall
serve and protect his/her fundamental rights.
Sec. 3. Definition of Terms. — As used in this Act. the
term:
(a) Inter-country adoption refers to the socio-legal
process of adopting a Filipino child by a foreigner or a
Filipino citizen permanently residing abroad where the
petition is filed, the supervised trial custody is
undertaken, and the decree of adoption is issued outside
the Philippines.
(b) Child means a person below fifteen (15) years of
age unless sooner emancipated by law.
(c) Department refers to the Department of Social
Welfare and Development of the Republic of the
Philippines.
(d) Secretary refers to the Secretary of the Department
of Social Welfare and Development.
(e) Authorized and accredited agency refers to the
State welfare agency or a licensed adoption agency in the
country of the adopting parents which provide
comprehensive social services and which is duly
recognized by the Department.
(f) Legally-free child means a child who has been
voluntarily or involuntarily committed to the Department,
in accordance with the Child and Youth Welfare Code.
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 (g) Matching refers to the judicious pairing of the
adoptive child and the applicant to promote a mutually
satisfying parent-child relationship.
(h) Board refers to the Inter-country Adoption Board.
Article II: The Inter-Country Adoption Board
Sec. 4. The Inter-Country Adoption Board. — There is
hereby created the Inter-Country Adoption Board,
hereinafter referred to as the Board to act as the central
authority in matters relating to inter-country adoption. It
shall act as the policy-making body for purposes of
carrying out the provisions of this Act, in consultation
and coordination with the Department, the different
child-care and placement agencies, adoptive agencies, as
well as non-governmental organizations engaged in
child-care and placement activities. As such, it shall:
(a) Protect the Filipino child from abuse, exploitation,
trafficking and/or sale or any other practice in connection
with adoption which is harmful, detrimental, or
prejudicial to the child;
(b) Collect, maintain, and preserve confidential
information about the child and the adoptive parents;
(c) Monitor, follow up, and facilitate completion of
adoption of the child through authorized and accredited
agency;
(d) Prevent improper financial or other gain in
connection with an adoption and deter improper
practices contrary to this Act;
(e) Promote the development of adoption services
including post-legal adoption;
(f) License and accredit child-caring/placement
agencies and collaborate with them in the placement of
Filipino children;
(g) Accredit and authorize foreign adoption agency in
the placement of Filipino children in their own country;
and
(h) Cancel the license to operate and blacklist the
child-caring and placement agency or adoptive agency
involved from the accreditation list of the Board upon a
finding of violation of any provision under this Act.
Sec. 5. Composition of the Board. — The Board shall be
composed of the Secretary of the Department as ex
officio Chairman, and six (6) other members to be
appointed by the President for a nonrenewable term of
six (6) years: Provided, That there shall be appointed one
(1) psychiatrist or psychologist, two (2) lawyers who shall
have at least the qualifications of a regional trial court
judge, one (1) registered social worker and two (2)
representatives from non-governmental organizations
engaged in child-caring and placement activities. The
members of the Board shall receive a per diem allowance
of One thousand five hundred pesos (P1,500) for each
meeting attended by them: Provided, further, That no
compensation shall be paid for more than four (4)
meetings a month.
Sec. 6. Powers and Functions of the Board. — The Board
shall have the following powers and functions:
(a) to prescribe rules and regulations as it may deem
reasonably necessary to carry out the provisions of this
Act, after consultation and upon favorable
recommendation of the different agencies concerned
with the child-caring, placement, and adoption;
(b) to set the guidelines for the convening of an Inter-
country Adoption Placement Committee which shall be
under the direct supervision of the Board;
(c) to set the guidelines for the manner by which
selection/matching of prospective adoptive parents and
adoptive child can be made;
(d) to determine a reasonable schedule of fees and
charges to be exacted in connection with the application
for adoption;
(e) to determine the form and contents of the
application for inter-country adoption;
(g) to institute systems and procedures to prevent
improper financial gain in connection with adoption and
deter improper practices which are contrary to this Act;
(h) to promote the development of adoption services,
including post-legal adoption services,
(i) to accredit and authorize foreign private adoption
agencies which have demonstrated professionalism,
competence and have consistently pursued non-profit
objectives to engage in the placement of Filipino children
in their own country: Provided, That such foreign private
agencies are duly authorized and accredited by their own
government to conduct inter-country adoption: Provided,
however, That the total number of authorized and
accredited foreign private adoption agencies shall not
exceed one hundred (100) a year;
(j) to take appropriate measures to ensure
confidentiality of the records of the child, the natural
parents and the adoptive parents at all times;
(k) to prepare, review or modify, and thereafter,
recommend to the Department of Foreign Affairs,
Memoranda of Agreement respecting inter-country
adoption consistent with the implementation of this Act
and its stated goals, entered into, between and among
foreign governments, international organizations and
recognized international non-governmental
organizations;
(l) to assist other concerned agencies and the courts in
the implementation of this Act, particularly as regards
coordination with foreign persons, agencies and other
entities involved in the process of adoption and the
physical transfer of the child; and
(m) to perform such other functions on matters
relating to inter-country adoption as may be determined
by the President.
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Article III: Procedure
Sec. 7. Inter-Country Adoption as the Last Resort. — The
Board shall ensure that all possibilities for adoption of
the child under the Family Code have been exhausted
and that inter-country adoption is in the best interest of
the child. Towards this end, the Board shall set up the
guidelines to ensure that steps will be taken to place the
child in the Philippines before the child is placed for
inter-country adoption: Provided, however, That the
maximum number that may be allowed for foreign
adoption shall not exceed six hundred (600) a year for
the first five (5) years.
Sec. 8. Who May be Adopted. — Only a legally free child
may be the subject of inter-country adoption. In order
that such child may be considered for placement, the
following documents must be submitted to the Board:
(a)Child study;
(b)Birth certificate/foundling certificate;
(c)Deed of voluntary commitment/decree of
abandonment/death certificate of parents;
(d)Medical evaluation /history;
(e)Psychological evaluation, as necessary; and
(f)Recent photo of the child.
Sec. 9. Who May Adopt. — An alien or a Filipino citizen
permanently residing abroad may file an application for
inter-country adoption of a Filipino child if he/she:
(a) is at least twenty-seven (27) years of age and at
least sixteen (16) years older than the child to be
adopted, at the time of application unless the adopter is
the parent by nature of the child to be adopted or the
spouse of such parent:
(b) if married, his/her spouse must jointly file for the
adoption;
(c) has the capacity to act and assume all rights and
responsibilities of parental authority under his national
laws, and has undergone the appropriate counseling
from an accredited counselor in his/her country;
(d) has not been convicted of a crime involving moral
turpitude;
(e) is eligible to adopt under his/her national law;
(f) is in a position to provide the proper care and
support and to give the necessary moral values and
example to all his children, including the child to be
adopted;
(g) agrees to uphold the basic rights of the child as
embodied under Philippine laws, the U.N. Convention on
the Rights of the Child, and to abide by the rules and
regulations issued to implement the provisions of this
Act;
(h) comes from a country with whom the Philippines
has diplomatic relations and whose government
maintains a similarly authorized and accredited agency
and that adoption is allowed under his/her national laws;
and
(i) possesses all the qualifications and none of the
disqualifications provided herein and in other applicable
Philippine laws.
Sec. 10. Where to File Application. — An application to
adopt a Filipino child shall be filed either with the
Philippine Regional Trial Court having jurisdiction over
the child, or with the Board, through an intermediate
agency, whether governmental or an authorized and
accredited agency, in the country of the prospective
adoptive parents, which application shall be in
accordance with the requirements as set forth in the
implementing rules and regulations to be promulgated
by the Board.
The application shall be supported by the following
documents written and officially translated in English.
(a) Birth certificate of applicant(s);
(b) Marriage contract, if married, and divorce decree, if
applicable;
(c) Written consent of their biological or adoptive
children above ten (10) years of age, in the form of sworn
statement;
(d) Physical, medical and psychological evaluation by a
duly licensed physician and psychologist;
(e) Income tax returns or any document showing the
financial capability of the applicant(s);
(f) Police clearance of applicant(s);
(g) Character reference from the local church/minister,
the applicant's employer and a member of the immediate
community who have known the applicant(s) for at least
five (5) years; and
(h) Recent postcard-size pictures of the applicant(s)
and his immediate family;
The Rules of Court shall apply in case of adoption by
judicial proceedings.
Sec. 11. Family Selection/Matching. — No child shall be
matched to a foreign adoptive family unless it is
satisfactorily shown that the child cannot be adopted
locally. The clearance, as issued by the Board, with the
copy of the minutes of the meetings, shall form part of
the records of the child to be adopted. When the Board is
ready to transmit the Placement Authority to the
authorized and accredited inter-country adoption agency
and all the travel documents of the child are ready, the
adoptive parents, or any one of them, shall personally
fetch the child in the Philippines.
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Sec. 12. Pre-adoptive Placement Costs. — The applicant(s)
shall bear the following costs incidental to the placement
of the child;
(a) The cost of bringing the child from the Philippines
to the residence of the applicant(s) abroad, including all
travel expenses within the Philippines and abroad; and
(b) The cost of passport, visa, medical examination and
psychological evaluation required, and other related
expenses.
Sec. 13. Fees, Charges and Assessments. — Fees, charges,
and assessments collected by the Board in the exercise of
its functions shall be used solely to process applications
for inter-country adoption and to support the activities of
the Board.
Sec. 14. Supervision of Trial Custody. — The governmental
agency or the authorized and accredited agency in the
country of the adoptive parents which filed the
application for inter-country adoption shall be
responsible for the trial custody and the care of the child.
It shall also provide family counseling and other related
services. The trial custody shall be for a period of six (6)
months from the time of placement. Only after the lapse
of the period of trial custody shall a decree of adoption
be issued in the said country a copy of which shall be
sent to the Board to form part of the records of the
child.
During the trial custody, the adopting parent(s) shall
submit to the governmental agency or the authorized
and accredited agency, which shall in turn transmit a
copy to the Board, a progress report of the child's
adjustment. The progress report shall be taken into
consideration in deciding whether or not to issue the
decree of adoption.
The Department of Foreign Affairs shall set up a system
by which Filipino children sent abroad for trial custody
are monitored and checked as reported by the
authorized and accredited inter-country adoption agency
as well as the repatriation to the Philippines of a Filipino
child whose adoption has not been approved.
Sec. 15. Executive Agreements. — The Department of
Foreign Affairs, upon representation of the Board, shall
cause the preparation of Executive Agreements with
countries of the foreign adoption agencies to ensure the
legitimate concurrence of said countries in upholding the
safeguards provided by this Act.
Article IV: Penalties
Sec. 16. Penalties. —
(a) Any person who shall knowingly participate in the
conduct or carrying out of an illegal adoption, in violation
of the provisions of this Act, shall be punished with a
penalty of imprisonment ranging from six (6) years and
one (1) day to twelve (12) years and/or a fine of not less
than Fifty thousand pesos (P50,000), but not more than
Two hundred thousand pesos (P200.000), at the
discretion of the court. For purposes of this Act, an
adoption is illegal if it is effected in any manner contrary
to the provisions of this Act or established State policies,
its implementing rules and regulations, executive
agreements, and other laws pertaining to adoption.
Illegality may be presumed from the following acts:
(1)consent for an adoption was acquired through, or
attended by coercion, fraud, improper material
inducement;
(2)there is no authority from the Board to effect
adoption;
(3)the procedures and safeguards placed under the law
for adoption were not complied with; and
(4)the child to be adopted is subjected to, or exposed
to danger, abuse and exploitation.
(b)Any person who shall violate established regulations
relating to the confidentiality and integrity of records,
documents and communications of adoption
applications, cases and processes shall suffer the penalty
of imprisonment ranging from one (1) year and one (1)
day to two (2) years, and/or a fine of not less than Five
thousand pesos (P5,000), but not more than Ten
thousand pesos (P10,000), at the discretion of the court.
A penalty lower by two (2) degrees than that prescribed
for the consummated felony under this Article shall be
imposed upon the principals of the attempt to commit
any of the acts herein enumerated.
Acts punishable under this Article, when committed by a
syndicate or where it involves two or more children shall
be considered as an offense constituting child trafficking
and shall merit the penalty of reclusion perpetua.
Acts punishable under this Article are deemed committed
by a syndicate if carried out by a group of three (3) or
more persons conspiring and/or confederating with one
another in carrying out any of the unlawful acts defined
under this Article.Penalties as are herein provided shall
be in addition to any other penalties which may be
imposed for the same acts punishable under other laws,
ordinances, executive orders, and proclamations.
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Sec. 17. Public Officers as Offenders. — Any government
official, employee or functionary who shall be found
guilty of violating any of the provisions of this Act, or
who shall conspire with private individuals shall, in
addition to the above-prescribed penalties, be penalized
in accordance with existing civil service laws, rules and
regulations: Provided, That upon the filing of a case,
either administrative or criminal, said government official,
employee or functionary concerned shall automatically
suffer suspension until the resolution of the case.
Article V: Final Provisions
Sec. 18. Implementing Rules and Regulations. — The
Inter-country Adoption Board, in coordination with the
Council for the Welfare of Children, the Department of
Foreign Affairs, and the Department of Justice, after due
consultation with agencies involved in child-care and
placement, shall promulgate the necessary rules and
regulations to implement the provisions of this Act within
six (6) months after its effectivity.
Sec. 19. Appropriations. — The amount of Five million
pesos (P5,000,000) is hereby appropriated from the
proceeds of the Lotto for the initial operations of the
Board and subsequently the appropriations of the same
shall be included in the General Appropriations Act for
the year following its enactment.
Sec. 20. Separability Clause. — If any provision, or part
hereof is held invalid or unconstitutional, the remainder
of the law or the provision not otherwise affected, shall
remain valid and subsisting.
Sec. 21. Repealing Clause. — Any law, decree, executive
order, administrative order or rules and regulations
contrary to, or inconsistent with the provisions of this Act
are hereby repealed, modified or amended accordingly.
Sec. 22. Effectivity Clause. — This Act shall take effect
fifteen (15) days after its publication in two (2)
newspapers of general circulation.
Approved: June 7, 1995
Republic Act No. 8552 February 25, 1998
AN ACT ESTABLISHING THE RULES AND POLICIES ON THE
DOMESTIC ADOPTION OF FILIPINO CHILDREN AND FOR
OTHER PURPOSES
Be it enacted by the Senate and House of
Representatives of the Philippines in Congress
assembled:
ARTICLE I
GENERAL PROVISIONS
Section 1. Short Title. – This Act shall be known as the
"Domestic Adoption Act of 1998."
Section 2. Declaration of Policies. – (a) It is hereby
declared the policy of the State to ensure that every child
remains under the care and custody of his/her parent(s)
and be provided with love, care, understanding and
security towards the full and harmonious development of
his/her personality. Only when such efforts prove
insufficient and no appropriate placement or adoption
within the child's extended family is available shall
adoption by an unrelated person be considered.
(b) In all matters relating to the care, custody and
adoption of a child, his/her interest shall be the
paramount consideration in accordance with the tenets
set forth in the United Nations (UN) Convention on the
Rights of the Child; UN Declaration on Social and Legal
Principles Relating to the Protection and Welfare of
Children with Special Reference to Foster Placement and
Adoption, Nationally and Internationally; and the Hague
Convention on the Protection of Children and
Cooperation in Respect of Intercountry Adoption. Toward
this end, the State shall provide alternative protection
and assistance through foster care or adoption for every
child who is neglected, orphaned, or abandoned.
(c) It shall also be a State policy to:
(i) Safeguard the biological parent(s) from
making hurried decisions to relinquish his/her
parental authority over his/her child;
(ii) Prevent the child from unnecessary
separation from his/her biological parent(s);
(iii) Protect adoptive parent(s) from attempts to
disturb his/her parental authority and custody
over his/her adopted child.
Any voluntary or involuntary termination of
parental authority shall be administratively or
judicially declared so as to establish the status
of the child as "legally available for adoption"
and his/her custody transferred to the
Department of Social Welfare and Development
or to any duly licensed and accredited child-
placing or child-caring agency, which entity
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 shall be authorized to take steps for the
permanent placement of the child;
(iv) Conduct public information and educational
campaigns to promote a positive environment
for adoption;
(v) Ensure that sufficient capacity exists within
government and private sector agencies to
handle adoption inquiries, process domestic
adoption applications, and offer adoption-
related services including, but not limited to,
parent preparation and post-adoption
education and counseling; and
(vi) Encourage domestic adoption so as to
preserve the child's identity and culture in
his/her native land, and only when this is not
available shall intercountry adoption be
considered as a last resort.
Section 3. Definition of Terms. – For purposes of this Act,
the following terms shall be defined as:
(a) "Child" is a person below eighteen (18) years
of age.
(b) "A child legally available for adoption" refers
to a child who has been voluntarily or
involuntarily committed to the Department or
to a duly licensed and accredited child-placing
or child-caring agency, freed of the parental
authority of his/her biological parent(s) or
guardian or adopter(s) in case of rescission of
adoption.
(c) "Voluntarily committed child" is one whose
parent(s) knowingly and willingly relinquishes
parental authority to the Department.
(d) "Involuntarily committed child" is one whose
parent(s), known or unknown, has been
permanently and judicially deprived of parental
authority due to abandonment; substantial,
continuous, or repeated neglect; abuse; or
incompetence to discharge parental
responsibilities.
(e) "Abandoned child" refers to one who has no
proper parental care or guardianship or whose
parent(s) has deserted him/her for a period of
at least six (6) continuous months and has been
judicially declared as such.
(f) "Supervised trial custody" is a period of time
within which a social worker oversees the
adjustment and emotional readiness of both
adopter(s) and adoptee in stabilizing their filial
relationship.
(g) "Department" refers to the Department of
Social Welfare and Development.
(h) "Child-placing agency" is a duly licensed and
accredited agency by the Department to
provide comprehensive child welfare services
including, but not limited to, receiving
applications for adoption, evaluating the
prospective adoptive parents, and preparing
the adoption home study.
(i) "Child-caring agency" is a duly licensed and
accredited agency by the Department that
provides twenty four (24)-hour residential care
services for abandoned, orphaned, neglected,
or voluntarily committed children.
(j) "Simulation of birth" is the tampering of the
civil registry making it appear in the birth
records that a certain child was born to a
person who is not his/her biological mother,
causing such child to lose his/her true identity
and status.
ARTICLE II: PRE-ADOPTION SERVICES
Section 4. Counseling Service. – The Department shall
provide the services of licensed social workers to the
following:
(a) Biological Parent(s) – Counseling shall be
provided to the parent(s) before and after the
birth of his/her child. No binding commitment
to an adoption plan shall be permitted before
the birth of his/her child. A period of six (6)
months shall be allowed for the biological
parent(s) to reconsider any decision to
relinquish his/her child for adoption before the
decision becomes irrevocable. Counseling and
rehabilitation services shall also be offered to
the biological parent(s) after he/she has
relinquished his/her child for adoption.
Steps shall be taken by the Department to
ensure that no hurried decisions are made and
all alternatives for the child's future and the
implications of each alternative have been
provided.
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 (b) Prospective Adoptive Parent(s) – Counseling
sessions, adoption fora and seminars, among
others, shall be provided to prospective
adoptive parent(s) to resolve possible adoption
issues and to prepare him/her for effective
parenting.
(c) Prospective Adoptee – Counseling sessions
shall be provided to ensure that he/she
understands the nature and effects of adoption
and is able to express his/her views on
adoption in accordance with his/her age and
level of maturity.
Section 5. Location of Unknown Parent(s). – It shall be the
duty of the Department or the child-placing or child-
caring agency which has custody of the child to exert all
efforts to locate his/her unknown biological parent(s). If
such efforts fail, the child shall be registered as a
foundling and subsequently be the subject of legal
proceedings where he/she shall be declared abandoned.
Section 6. Support Services. – The Department shall
develop a pre-adoption program which shall include,
among others, the above mentioned services.
ARTICLE III: ELIGIBILITY
Section 7. Who May Adopt. – The following may adopt:
(a) Any Filipino citizen of legal age, in
possession of full civil capacity and legal rights,
of good moral character, has not been
convicted of any crime involving moral
turpitude, emotionally and psychologically
capable of caring for children, at least sixteen
(16) years older than the adoptee, and who is in
a position to support and care for his/her
children in keeping with the means of the
family. The requirement of sixteen (16) year
difference between the age of the adopter and
adoptee may be waived when the adopter is
the biological parent of the adoptee, or is the
spouse of the adoptee's parent;
(b) Any alien possessing the same qualifications
as above stated for Filipino nationals: Provided,
That his/her country has diplomatic relations
with the Republic of the Philippines, that he/she
has been living in the Philippines for at least
three (3) continuous years prior to the filing of
the application for adoption and maintains such
residence until the adoption decree is entered,
that he/she has been certified by his/her
diplomatic or consular office or any appropriate
government agency that he/she has the legal
capacity to adopt in his/her country, and that
his/her government allows the adoptee to enter
his/her country as his/her adopted
son/daughter: Provided, Further, That the
requirements on residency and certification of
the alien's qualification to adopt in his/her
country may be waived for the following:
(i) a former Filipino citizen who seeks
to adopt a relative within the fourth
(4th) degree of consanguinity or
affinity; or
(ii) one who seeks to adopt the
legitimate son/daughter of his/her
Filipino spouse; or
(iii) one who is married to a Filipino
citizen and seeks to adopt jointly with
his/her spouse a relative within the
fourth (4th) degree of consanguinity
or affinity of the Filipino spouse; or
(c) The guardian with respect to the ward after
the termination of the guardianship and
clearance of his/her financial accountabilities.
Husband and wife shall jointly adopt, except in the
following cases:
(i) if one spouse seeks to adopt the legitimate
son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own
illegitimate son/daughter: Provided, However,
that the other spouse has signified his/her
consent thereto; or
(iii) if the spouses are legally separated from
each other.
In case husband and wife jointly adopt, or one spouse
adopts the illegitimate son/daughter of the other, joint
parental authority shall be exercised by the spouses.
Section 8. Who May Be Adopted. – The following may be
adopted:
(a) Any person below eighteen (18) years of age
who has been administratively or judicially
declared available for adoption;
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 (b) The legitimate son/daughter of one spouse
by the other spouse;
(c) An illegitimate son/daughter by a qualified
adopter to improve his/her status to that of
legitimacy;
(d) A person of legal age if, prior to the
adoption, said person has been consistently
considered and treated by the adopter(s) as
his/her own child since minority;
(e) A child whose adoption has been previously
rescinded; or
(f) A child whose biological or adoptive
parent(s) has died: Provided, That no
proceedings shall be initiated within six (6)
months from the time of death of said
parent(s).
Section 9. Whose Consent is Necessary to the Adoption. –
After being properly counseled and informed of his/her
right to give or withhold his/her approval of the
adoption, the written consent of the following to the
adoption is hereby required:
(a) The adoptee, if ten (10) years of age or over;
(b) The biological parent(s) of the child, if
known, or the legal guardian, or the proper
government instrumentality which has legal
custody of the child;
(c) The legitimate and adopted sons/daughters,
ten (10) years of age or over, of the adopter(s)
and adoptee, if any;
(d) The illegitimate sons/daughters, ten (10)
years of age or over, of the adopter if living
with said adopter and the latter's spouse, if any;
and
(e) The spouse, if any, of the person adopting or
to be adopted.
ARTICLE IV: PROCEDURE
Section 10. Hurried Decisions. – In all proceedings for
adoption, the court shall require proof that the biological
parent(s) has been properly counseled to prevent
him/her from making hurried decisions caused by strain
or anxiety to give up the child, and to sustain that all
measures to strengthen the family have been exhausted
and that any prolonged stay of the child in his/her own
home will be inimical to his/her welfare and interest.
Section 11. Case Study. – No petition for adoption shall
be set for hearing unless a licensed social worker of the
Department, the social service office of the local
government unit, or any child-placing or child-caring
agency has made a case study of the adoptee, his/her
biological parent(s), as well as the adopter(s), and has
submitted the report and recommendations on the
matter to the court hearing such petition.
At the time of preparation of the adoptee's case study,
the concerned social worker shall confirm with the Civil
Registry the real identity and registered name of the
adoptee. If the birth of the adoptee was not registered
with the Civil Registry, it shall be the responsibility of the
concerned social worker to ensure that the adoptee is
registered.
The case study on the adoptee shall establish that he/she
is legally available for adoption and that the documents
to support this fact are valid and authentic. Further, the
case study of the adopter(s) shall ascertain his/her
genuine intentions and that the adoption is in the best
interest of the child.
The Department shall intervene on behalf of the adoptee
if it finds, after the conduct of the case studies, that the
petition should be denied. The case studies and other
relevant documents and records pertaining to the
adoptee and the adoption shall be preserved by the
Department.
Section 12. Supervised Trial Custody. – No petition for
adoption shall be finally granted until the adopter(s) has
been given by the court a supervised trial custody period
for at least six (6) months within which the parties are
expected to adjust psychologically and emotionally to
each other and establish a bonding relationship. During
said period, temporary parental authority shall be vested
in the adopter(s).
The court may motu proprio or upon motion of any party
reduce the trial period if it finds the same to be in the
best interest of the adoptee, stating the reasons for the
reduction of the period. However, for alien adopter(s),
he/she must complete the six (6)-month trial custody
except for those enumerated in Sec. 7 (b) (i) (ii) (iii).
If the child is below seven (7) years of age and is placed
with the prospective adopter(s) through a pre-adoption
placement authority issued by the Department, the
prospective adopter(s) shall enjoy all the benefits to
102
which biological parent(s) is entitled from the date the
adoptee is placed with the prospective adopter(s).
Section 13. Decree of Adoption. – If, after the publication
of the order of hearing has been complied with, and no
opposition has been interposed to the petition, and after
consideration of the case studies, the qualifications of the
adopter(s), trial custody report and the evidence
submitted, the court is convinced that the petitioners are
qualified to adopt, and that the adoption would redound
to the best interest of the adoptee, a decree of adoption
shall be entered which shall be effective as of the date
the original petition was filed. This provision shall also
apply in case the petitioner(s) dies before the issuance of
the decree of adoption to protect the interest of the
adoptee. The decree shall state the name by which the
child is to be known.
Section 14. Civil Registry Record. – An amended certificate
of birth shall be issued by the Civil Registry, as required
by the Rules of Court, attesting to the fact that the
adoptee is the child of the adopter(s) by being registered
with his/her surname. The original certificate of birth shall
be stamped "cancelled" with the annotation of the
issuance of an amended birth certificate in its place and
shall be sealed in the civil registry records. The new birth
certificate to be issued to the adoptee shall not bear any
notation that it is an amended issue.
Section 15. Confidential Nature of Proceedings and
Records. – All hearings in adoption cases shall be
confidential and shall not be open to the public. All
records, books, and papers relating to the adoption cases
in the files of the court, the Department, or any other
agency or institution participating in the adoption
proceedings shall be kept strictly confidential.
If the court finds that the disclosure of the information to
a third person is necessary for purposes connected with
or arising out of the adoption and will be for the best
interest of the adoptee, the court may merit the
necessary information to be released, restricting the
purposes for which it may be used.
ARTICLE V: EFFECTS OF ADOPTION
Section 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).
Section 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.
Section 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.
ARTICLE VI: RESCISSION OF ADOPTION
Section 19. Grounds for Rescission of Adoption. – Upon
petition of the adoptee, with the assistance of the
Department if a minor or if over eighteen (18) years of
age but is incapacitated, as guardian/counsel, the
adoption may be rescinded on any of the following
grounds committed by the adopter(s): (a) repeated
physical and verbal maltreatment by the adopter(s)
despite having undergone counseling; (b) attempt on the
life of the adoptee; (c) sexual assault or violence; or (d)
abandonment and failure to comply with parental
obligations.
Adoption, being in the best interest of the child, shall not
be subject to rescission by the adopter(s). However, the
adopter(s) may disinherit the adoptee for causes
provided in Article 919 of the Civil Code.
Section 20. Effects of Rescission. – If the petition is
granted, the parental authority of the adoptee's
biological parent(s), if known, or the legal custody of the
Department shall be restored if the adoptee is still a
minor or incapacitated. The reciprocal rights and
obligations of the adopter(s) and the adoptee to each
other shall be extinguished.
The court shall order the Civil Registrar to cancel the
amended certificate of birth of the adoptee and restore
his/her original birth certificate.
Succession rights shall revert to its status prior to
adoption, but only as of the date of judgment of judicial
rescission. Vested rights acquired prior to judicial
rescission shall be respected.
All the foregoing effects of rescission of adoption shall be
without prejudice to the penalties imposable under the
Penal Code if the criminal acts are properly proven.
ARTICLE VII: VIOLATIONS AND PENALTIES
103
Section 21. Violations and Penalties. – (a) The penalty of
imprisonment ranging from six (6) years and one (1) day
to twelve (12) years and/or a fine not less than Fifty
thousand pesos (P50,000.00), but not more than Two
hundred thousand pesos (P200,000.00) at the discretion
of the court shall be imposed on any person who shall
commit any of the following acts:
(i) obtaining consent for an adoption through
coercion, undue influence, fraud, improper
material inducement, or other similar acts;
(ii) non-compliance with the procedures and
safeguards provided by the law for adoption; or
(iii) subjecting or exposing the child to be
adopted to danger, abuse, or exploitation.
(b) Any person who shall cause the fictitious registration
of the birth of a child under the name(s) of a person(s)
who is not his/her biological parent(s) shall be guilty of
simulation of birth, and shall be punished by prision
mayor in its medium period and a fine not exceeding
Fifty thousand pesos (P50,000.00).
Any physician or nurse or hospital personnel who, in
violation of his/her oath of office, shall cooperate in the
execution of the abovementioned crime shall suffer the
penalties herein prescribed and also the penalty of
permanent disqualification.
Any person who shall violate established regulations
relating to the confidentiality and integrity of records,
documents, and communications of adoption
applications, cases, and processes shall suffer the penalty
of imprisonment ranging from one (1) year and one (1)
day to two (2) years, and/or a fine of not less than Five
thousand pesos (P5,000.00) but not more than Ten
thousand pesos (P10,000.00), at the discretion of the
court.
A penalty lower by two (2) degrees than that prescribed
for the consummated offense under this Article shall be
imposed upon the principals of the attempt to commit
any of the acts herein enumerated. Acts punishable
under this Article, when committed by a syndicate or
where it involves two (2) or more children shall be
considered as an offense constituting child trafficking
and shall merit the penalty of reclusion perpetua.
Acts punishable under this Article are deemed committed
by a syndicate if carried out by a group of three (3) or
more persons conspiring and/or confederating with one
another in carrying out any of the unlawful acts defined
under this Article. Penalties as are herein provided, shall
be in addition to any other penalties which may be
imposed for the same acts punishable under other laws,
ordinances, executive orders, and proclamations.
When the offender is an alien, he/she shall be deported
immediately after service of sentence and perpetually
excluded from entry to the country.
Any government official, employee or functionary who
shall be found guilty of violating any of the provisions of
this Act, or who shall conspire with private individuals
shall, in addition to the above-prescribed penalties, be
penalized in accordance with existing civil service laws,
rules and regulations: Provided, That upon the filing of a
case, either administrative or criminal, said government
official, employee, or functionary concerned shall
automatically suffer suspension until the resolution of the
case.
Section 22. Rectification of Simulated Births. – A person
who has, prior to the effectivity of this Act, simulated the
birth of a child shall not be punished for such
act: Provided, That the simulation of birth was made for
the best interest of the child and that he/she has been
consistently considered and treated by that person as
his/her own son/daughter: Provided, further, That the
application for correction of the birth registration and
petition for adoption shall be filed within five (5) years
from the effectivity of this Act and completed
thereafter: Provided, finally, That such person complies
with the procedure as specified in Article IV of this Act
and other requirements as determined by the
Department.
ARTICLE VIII: FINAL PROVISIONS
Section 23. Adoption Resource and Referral Office. – There
shall be established an Adoption Resources and Referral
Office under the Department with the following
functions: (a) monitor the existence, number, and flow of
children legally available for adoption and prospective
adopter(s) so as to facilitate their matching; (b) maintain
a nationwide information and educational campaign on
domestic adoption; (c) keep records of adoption
proceedings; (d) generate resources to help child-caring
and child-placing agencies and foster homes maintain
viability; and (e) do policy research in collaboration with
the Intercountry Adoption Board and other concerned
agencies. The office shall be manned by adoption experts
from the public and private sectors.
Section 24. Implementing Rules and Regulations. – Within
six (6) months from the promulgation of this Act, the
Department, with the Council for the Welfare of Children,
the Office of Civil Registry General, the Department of
104
Justice, Office of the Solicitor General, and two (2) private
individuals representing child-placing and child-caring
agencies shall formulate the necessary guidelines to
make the provisions of this Act operative.
Section 25. Appropriations. – Such sum as may be
necessary for the implementation of the provisions of this
Act shall be included in the General Appropriations Act of
the year following its enactment into law and thereafter.
Section 26. Repealing Clause. – Any law, presidential
decree or issuance, executive order, letter of instruction,
administrative order, rule, or regulation contrary to, or
inconsistent with the provisions of this Act is hereby
repealed, modified, or amended accordingly.
Section 27. Separability Clause. – If any provision of this
Act is held invalid or unconstitutional, the other
provisions not affected thereby shall remain valid and
subsisting.
Section 28. Effectivity Clause. – This Act shall take effect
fifteen (15) days following its complete publication in any
newspaper of general circulation or in the Official
Gazette.
Approved: February 25, 1998
G.R. No. 85044 June 3, 1992
MACARIO TAMARGO, CELSO TAMARGO and AURELIA
TAMARGO, petitioners,
vs.
HON. COURT OF APPEALS, THE HON. ARISTON L. RUBIO,
RTC Judge, Branch 20, Vigan, Ilocos Sur; VICTOR BUNDOC;
and CLARA BUNDOC, respondents.
FELICIANO, J.:
On 20 October 1982, Adelberto Bundoc, then a minor of
10 years of age, shot Jennifer Tamargo with an air rifle
causing injuries which resulted in her death. Accordingly,
a civil complaint for damages was filed with the Regional
Trial Court, Branch 20, Vigan, Ilocos Sur, docketed as Civil
Case No. 3457-V, by petitioner Macario Tamargo,
Jennifer's adopting parent, and petitioner spouses Celso
and Aurelia Tamargo, Jennifer's natural parents against
respondent spouses Victor and Clara Bundoc, Adelberto's
natural parents with whom he was living at the time of
the tragic incident. In addition to this case for damages, a
criminal information or Homicide through Reckless
Imprudence was filed [Criminal Case No. 1722-V] against
Adelberto Bundoc. Adelberto, however, was acquitted
and exempted from criminal liability on the ground that
he bad acted without discernment.
Prior to the incident, or on 10 December 1981, the
spouses Sabas and Felisa Rapisura had filed a petition to
adopt the minor Adelberto Bundoc in Special
Proceedings No. 0373-T before the then Court of First
Instance of Ilocos Sur. This petition for adoption was
grunted on, 18 November 1982, that is, after Adelberto
had shot and killed Jennifer.
In their Answer, respondent spouses Bundoc, Adelberto's
natural parents, reciting the result of the foregoing
petition for adoption, claimed that not they, but rather
the adopting parents, namely the spouses Sabas and
Felisa Rapisura, were indispensable parties to the action
since parental authority had shifted to the adopting
parents from the moment the successful petition for
adoption was filed.
Petitioners in their Reply contended that since Adelberto
Bundoc was then actually living with his natural parents,
parental authority had not ceased nor been relinquished
by the mere filing and granting of a petition for adoption.
The trial court on 3 December 1987 dismissed
petitioners' complaint, ruling that respondent natural
parents of Adelberto indeed were not indispensable
parties to the action.
Petitioners received a copy of the trial court's Decision on
7 December 1987. Within the 15-day reglementary
period, or on 14 December 1987, petitioners filed a
motion for reconsideration followed by a supplemental
motion for reconsideration on 15 January 1988. It
appearing, however, that the motions failed to comply
with Sections 4 and 5 of Rule 15 of the Revised Rules of
Court — that notice of the motion shall be given to all
parties concerned at least three (3) days before the
hearing of said motion; and that said notice shall state
the time and place of hearing — both motions were
denied by the trial court in an Order dated 18 April 1988.
On 28 April 1988, petitioners filed a notice of appeal. In
its Order dated 6 June 1988, the trial court dismissed the
notice at appeal, this time ruling that the notice had been
filed beyond the 15-day reglementary period ending 22
December 1987.
Petitioners went to the Court of Appeals on a petition
for mandamus and certiorari questioning the trial court's
Decision dated 3 December 1987 and the Orders dated
18 April 1988 and 6 June 1988, The Court of Appeals
dismissed the petition, ruling that petitioners had lost
their right to appeal.
In the present Petition for Review, petitioners once again
contend that respondent spouses Bundoc are the
indispensable parties to the action for damages caused
105
by the acts of their minor child, Adelberto Bundoc.
Resolution of this Petition hinges on the following issues:
(1) whether or not petitioners, notwithstanding loss of
their right to appeal, may still file the instant Petition;
conversely, whether the Court may still take cognizance
of the case even through petitioners' appeal had been
filed out of time; and (2) whether or not the effects of
adoption, insofar as parental authority is concerned may
be given retroactive effect so as to make the adopting
parents the indispensable parties in a damage case filed
against their adopted child, for acts committed by the
latter, when actual custody was yet lodged with the
biological parents.
1. It will be recalled that, petitioners' motion (and
supplemental motion) for reconsideration filed before
the trial court, not having complied with the
requirements of Section 13, Rule 41, and Section 4, Rule
15, of the Revised Rules of Court, were considered pro
forma and hence did not interrupt and suspend the
reglementary period to appeal: the trial court held that
the motions, not having contained a notice of time and
place of hearing, had become useless pieces of paper
which did not interrupt the reglementary period. 1 As in
fact repeatedly held by this Court, what is mandatory is
the service of the motion on the opposing counsel
indicating the time and place of hearing. 2
In view, however, of the nature of the issue raised in the
instant. Petition, and in order that substantial justice may
be served, the Court, invoking its right to suspend the
application of technical rules to prevent manifest
injustice, elects to treat the notice of appeal as having
been seasonably filed before the trial court, and the
motion (and supplemental motion) for reconsideration
filed by petitioner in the trial court as having interrupted
the reglementary period for appeal. As the Court held
in Gregorio v. Court of Appeals: 3
Dismissal of appeal; purely on
technical grounds is frowned upon
where the policy of the courts is to
encourage hearings of appeal on their
merits. The rules of procedure ought
not be applied in a very rigid technical
sense, rules of procedure are used
only to help secure not override,
substantial justice. if d technical and
rigid enforcement of the rules is made
their aim would be defeated. 4
2. It is not disputed that Adelberto Bundoc's voluntary act
of shooting Jennifer Tamargo with an air rifle gave rise to
a cause of action on quasi-delict against him. As Article
2176 of the Civil Code provides:
Whoever by act or omission causes
damage to another, there being fault
or negligence, is obliged to pay for
the damage done. Such fault or
negligence, if there is no pre-existing
contractual relation between the
parties, is called a quasi-delict . . .
Upon the other hand, the law imposes civil liability upon
the father and, in case of his death or incapacity, the
mother, for any damages that may be caused by a minor
child who lives with them. Article 2180 of the Civil Code
reads:
The obligation imposed by article
2176 is demandable not only for one's
own acts or omissions, but also for
those of persons for whom one is
responsible.
The father and, in case of his death or
incapacity, the mother, are
responsible for the damages caused
by the minor children who live in their
company.
xxx xxx xxx
The responsibility treated of in this
Article shall cease when the person
herein mentioned prove that they
observed all the diligence of a good
father of a family to prevent damage.
(Emphasis supplied)
This principle of parental liability is a species of what is
frequently designated as vicarious liability, or the
doctrine of "imputed negligence" under Anglo-American
tort law, where a person is not only liable for torts
committed by himself, but also for torts committed by
others with whom he has a certain relationship and for
whom he is responsible. Thus, parental liability is made a
natural or logical consequence of the duties and
responsibilities of parents — their parental authority —
which includes the instructing, controlling and
disciplining of the child. 5 The basis for the doctrine of
vicarious liability was explained by the Court in Cangco v.
Manila Railroad Co. 6 in the following terms:
With respect to extra-contractual
obligation arising from negligence,
whether of act or omission, it is
competent for the legislature to elect
— and our Legislature has so elected
— to limit such liability to cases in
106
 which the person upon whom such an
obligation is imposed is morally
culpable or, on the contrary, for
reasons of public policy. to extend
that liability, without regard to the
lack of moral culpability, so as to
include responsibility for the
negligence of those persons whose
acts or omissions are imputable, by a
legal fiction, to others who are in a
position to exercise an absolute or
limited control over them. The
legislature which adopted our Civil
Code has elected to limit extra-
contractual liability — with certain
well-defined exceptions — to cases in
which moral culpability can be directly
imputed to the persons to be
charged. This moral responsibility may
consist in having failed to exercise
due care in one's own acts, or
in having failed to exercise due care in
the selection and control of one's
agent or servants, or in the control of
persons who, by reasons of their
status, occupy a position of
dependency with respect to the
person made liable for their
conduct. 7 (Emphasis Supplied)
The civil liability imposed upon parents for the
torts of their minor children living with them,
may be seen to be based upon the parental
authority vested by the Civil Code upon such
parents. The civil law assumes that when an
unemancipated child living with its parents
commits a tortious acts, the parents were
negligent in the performance of their legal and
natural duty closely to supervise the child who
is in their custody and control. Parental liability
is, in other words, anchored upon parental
authority coupled with presumed parental
dereliction in the discharge of the duties
accompanying such authority. The parental
dereliction is, of course, only presumed and the
presumption can be overtuned under Article
2180 of the Civil Code by proof that the parents
had exercised all the diligence of a good father
of a family to prevent the damage.
In the instant case, the shooting of Jennifer by Adelberto
with an air rifle occured when parental authority was still
lodged in respondent Bundoc spouses, the natural
parents of the minor Adelberto. It would thus follow that
the natural parents who had then actual custody of the
minor Adelberto, are the indispensable parties to the suit
for damages.
The natural parents of Adelberto, however, stoutly
maintain that because a decree of adoption was issued
by the adoption court in favor of the Rapisura spouses,
parental authority was vested in the latter as adopting
parents as of the time of the filing of the petition for
adoption that is, before Adelberto had shot Jennifer
which an air rifle. The Bundoc spouses contend that they
were therefore free of any parental responsibility for
Adelberto's allegedly tortious conduct.
Respondent Bundoc spouses rely on Article 36 of the
Child and Youth Welfare Code 8 which reads as follows:
Art. 36. Decree of Adoption. — If, after
considering the report of the
Department of Social Welfare or duly
licensed child placement agency and
the evidence submitted before it, the
court is satisfied that the petitioner is
qualified to maintain, care for, and
educate the child, that the trial
custody period has been completed,
and that the best interests of the child
will be promoted by the adoption, a
decree of adoption shall be entered,
which shall be effective he date the
original petition was filed. The decree
shall state the name by which the
child is thenceforth to be known.
(Emphasis supplied)
The Bundoc spouses further argue that the
above Article 36 should be read in relation to
Article 39 of the same Code:
Art. 39. Effect of Adoption. — The
adoption shall:
xxx xxx xxx
(2) Dissolve the authority vested in the
natural parents, except where the
adopter is the spouse of the surviving
natural parent;
xxx xxx xxx
(Emphasis supplied)
107
and urge that their Parental authority must be deemed to
have been dissolved as of the time the Petition for
adoption was filed.
The Court is not persuaded. As earlier noted, under the
Civil Code, the basis of parental liability for the torts of a
minor child is the relationship existing between the
parents and the minor child living with them and over
whom, the law presumes, the parents exercise
supervision and control. Article 58 of the Child and Youth
Welfare Code, re-enacted this rule:
Article 58 Torts — Parents and
guardians are responsible for the
damage caused by the child under
their parental authority in accordance
with the civil Code. (Emphasis
supplied)
Article 221 of the Family Code of the Philippines has 9 vested
similarly insisted upon the requisite that the child, doer of
the tortious act, shall have beer in the actual custody of
the parents sought to be held liable for the ensuing
damage:
Art. 221. Parents and other persons
exercising parental authority shall be
civilly liable for the injuries and
damages caused by the acts or
omissions of their unemancipated
children living in their company and
under their parental authority subject
to the appropriate defenses provided
by law. (Emphasis supplied)
We do not believe that parental authority is properly
regarded as having been retroactively transferred to and
vested in the adopting parents, the Rapisura spouses, at
the time the air rifle shooting happened. We do not
consider that retroactive effect may be giver to the
decree of adoption so as to impose a liability upon the
adopting parents accruing at a time when adopting
parents had no actual or physically custody over the
adopted child. Retroactive affect may perhaps be given
to the granting of the petition for adoption where such is
essential to permit the accrual of some benefit or
advantage in favor of the adopted child. In the instant
case, however, to hold that parental authority had been
retroactively lodged in the Rapisura spouses so as to
burden them with liability for a tortious act that they
could not have foreseen and which they could not have
prevented (since they were at the time in the United
States and had no physical custody over the child
Adelberto) would be unfair and unconscionable. Such a
result, moreover, would be inconsistent with the
philosophical and policy basis underlying the doctrine of
vicarious liability. Put a little differently, no presumption
of parental dereliction on the part of the adopting
parents, the Rapisura spouses, could have arisen since
Adelberto was not in fact subject to their control at the
time the tort was committed.
Article 35 of the Child and Youth Welfare Code fortifies
the conclusion reached above. Article 35 provides as
follows:
Art. 35. Trial Custody. — No petition
for adoption shall be finally granted
unless and until the adopting parents
are given by the courts a supervised
trial custody period of at least six
months to assess their adjustment
and emotional readiness for the legal
union. During the period of trial
custody, parental authority shall be
in the adopting
parents. (Emphasis supplied)
Under the above Article 35, parental authority is
provisionally vested in the adopting parents during the
period of trial custody, i.e., before the issuance of a
decree of adoption, precisely because the adopting
parents are given actual custody of the child during such
trial period. In the instant case, the trial custody period
either had not yet begun or bad already been completed
at the time of the air rifle shooting; in any case, actual
custody of Adelberto was then with his natural parents,
not the adopting parents.
Accordingly, we conclude that respondent Bundoc
spouses, Adelberto's natural parents, were indispensable
parties to the suit for damages brought by petitioners,
and that the dismissal by the trial court of petitioners'
complaint, the indispensable parties being already before
the court, constituted grave abuse of discretion
amounting to lack or excess of jurisdiction.
WHEREFORE, premises considered, the Petition for
Review is hereby GRANTED DUE COURSE and the
Decision of the Court of Appeals dated 6 September
1988, in C.A.-G.R. No. SP-15016 is hereby REVERSED and
SET ASIDE. Petitioners' complaint filed before the trial
court is hereby REINSTATED and this case is REMANDED
to that court for further proceedings consistent with this
Decision. Costs against respondent Bundoc spouses. This
Decision is immediately executory.
SO ORDERED.
108
 G.R. No. 143989 July 14, 2003
ISABELITA S. LAHOM, petitioner,
vs.
JOSE MELVIN SIBULO (previously referred to as "DR.
MELVIN S. LAHOM"), respondent.
VITUG, J.:
The bliss of marriage and family would be to most less
than complete without children. The realization could
have likely prodded the spouses Dr. Diosdado Lahom
and Isabelita Lahom to take into their care Isabelita's
nephew Jose Melvin Sibulo and to bring him up as their
own. At the tender age of two, Jose Melvin enjoyed the
warmth, love and support of the couple who treated the
child like their own. Indeed, for years, Dr. and Mrs. Lahom
fancied on legally adopting Jose Melvin. Finally, in 1971,
the couple decided to file a petition for adoption. On 05
May 1972, an order granting the petition was issued that
made all the more intense than before the feeling of
affection of the spouses for Melvin. In keeping with the
court order, the Civil Registrar of Naga City changed the
name "Jose Melvin Sibulo" to "Jose Melvin Lahom."
A sad turn of events came many years later. Eventually, in
December of 1999, Mrs. Lahom commenced a petition to
rescind the decree of adoption before the Regional Trial
Court (RTC), Branch 22, of Naga City. In her petition, she
averred —
"7. That x x x despite the proddings and
pleadings of said spouses, respondent refused
to change his surname from Sibulo to Lahom,
to the frustrations of petitioner particularly her
husband until the latter died, and even before
his death he had made known his desire to
revoke respondent's adoption, but was
prevented by petitioner's supplication, however
with his further request upon petitioner to give
to charity whatever properties or interest may
pertain to respondent in the future.
xxx xxx xxx
"10. That respondent continued using his
surname Sibulo to the utter disregard of the
feelings of herein petitioner, and his records
with the Professional Regulation Commission
showed his name as Jose Melvin M. Sibulo
originally issued in 1978 until the present, and
in all his dealings and activities in connection
with his practice of his profession, he is Jose
Melvin M. Sibulo.
xxx xxx xxx
"13. That herein petitioner being a widow, and
living alone in this city with only her household
helps to attend to her, has yearned for the care
and show of concern from a son, but
respondent remained indifferent and would
only come to Naga to see her once a year.
"14. That for the last three or four years, the
medical check-up of petitioner in Manila
became more frequent in view of a leg ailment,
and those were the times when petitioner
would need most the care and support from a
love one, but respondent all the more remained
callous and utterly indifferent towards
petitioner which is not expected of a son.
"15. That herein respondent has recently been
jealous of petitioner's nephews and nieces
whenever they would find time to visit her,
respondent alleging that they were only
motivated by their desire for some material
benefits from petitioner.
"16. That in view of respondent's insensible
attitude resulting in a strained and
uncomfortable relationship between him and
petitioner, the latter has suffered wounded
feelings, knowing that after all respondent's
only motive to his adoption is his expectancy of
his alleged rights over the properties of herein
petitioner and her late husband, clearly shown
by his recent filing of Civil Case No. 99-4463 for
partition against petitioner, thereby totally
eroding her love and affection towards
respondent, rendering the decree of adoption,
considering respondent to be the child of
petitioner, for all legal purposes, has been
negated for which reason there is no more
basis for its existence, hence this petition for
revocation,"1
Prior to the institution of the case, specifically on 22
March 1998, Republic Act (R.A.) No. 8552, also known as
the Domestic Adoption Act, went into effect. The new
statute deleted from the law the right of adopters to
rescind a decree of adoption.
Section 19 of Article VI of R.A. No. 8552 now reads:
"SEC. 19. Grounds for Rescission of Adoption.
— Upon petition of the adoptee, with the
assistance of the Department if a minor or if
over eighteen (18) years of age but is
109
 incapacitated, as guardian/counsel, the
adoption may be rescinded on any of the
following grounds committed by the adopter(s):
(a) repeated physical and verbal maltreatment
by the adopter(s) despite having undergone
counseling; (b) attempt on the life of the
adoptee; (c) sexual assault or violence; or (d)
abandonment and failure to comply with
parental obligations.
"Adoption, being in the best interest of the
child, shall not be subject to rescission by the
adopter(s). However, the adopter(s) may
disinherit the adoptee for causes provided in
Article 919 of the Civil Code." (emphasis
supplied)
Jose Melvin moved for the dismissal of the petition,
contending principally (a) that the trial court had no
jurisdiction over the case and (b) that the petitioner had
no cause of action in view of the aforequoted provisions
of R.A. No. 8552. Petitioner asseverated, by way of
opposition, that the proscription in R.A. No. 8552 should
not retroactively apply, i.e., to cases where the ground for
rescission of the adoption vested under the regime of
then Article 3482 of the Civil Code and Article 1923 of the
Family Code.
In an order, dated 28 April 2000, the trial court held
thusly:
"On the issue of jurisdiction over the subject
matter of the suit, Section 5(c) of R.A. No. 8369
confers jurisdiction to this Court, having been
designated Family Court in A.M. No. 99-11-07
SC.
"On the matter of no cause of action, the test
on the sufficiency of the facts alleged in the
complaint, is whether or not, admitting the facts
alleged, the Court could render a valid
judgment in accordance with the prayer of said
complaint (De Jesus, et al. vs. Belarmino, et al.,
95 Phil. 365).
"Admittedly, Section 19, Article VI of R.A. No.
8552 deleted the right of an adopter to rescind
an adoption earlier granted under the Family
Code. Conformably, on the face of the petition,
indeed there is lack of cause of action.
"Petitioner however, insists that her right to
rescind long acquired under the provisions of
the Family Code should be respected. Assuming
for the sake of argument, that petitioner is
entitled to rescind the adoption of respondent
granted on May 5, 1972, said right should have
been exercised within the period allowed by the
Rules. From the averments in the petition, it
appears clear that the legal grounds for the
petition have been discovered and known to
petitioner for more than five (5) years, prior to
the filing of the instant petition on December 1,
1999, hence, the action if any, had already
prescribed. (Sec. 5, Rule 100 Revised Rules of
Court)
"WHEREFORE, in view of the foregoing
consideration, the petition is ordered
dismissed."4
Via a petition for review on certiorari under Rule 45 of
the 1997 Rules of Court, petitioner raises the following
questions; viz:
1. May the subject adoption, decreed on 05
May 1972, still be revoked or rescinded by an
adopter after the effectivity of R.A. No. 8552?
2. In the affirmative, has the adopter's action
prescribed?
A brief background on the law and its origins could
provide some insights on the subject. In ancient times,
the Romans undertook adoption to assure male heirs in
the family.5 The continuity of the adopter's family was the
primary purpose of adoption and all matters relating to it
basically focused on the rights of the adopter. There was
hardly any mention about the rights of the
adopted.6 Countries, like Greece, France, Spain and
England, in an effort to preserve inheritance within the
family, neither allowed nor recognized adoption.7 It was
only much later when adoption was given an impetus in
law and still later when the welfare of the child became a
paramount concern.8 Spain itself which previously
disfavored adoption ultimately relented and accepted the
Roman law concept of adoption which, subsequently,
was to find its way to the archipelago. The Americans
came and introduced their own ideas on adoption which,
unlike most countries in Europe, made the interests of
the child an overriding consideration.9 In the early part of
the century just passed, the rights of children invited
universal attention; the Geneva Declaration of Rights of
the Child of 1924 and the Universal Declaration of
Human Rights of 1948,10 followed by the United Nations
Declarations of the Rights of the Child,11 were written
instruments that would also protect and safeguard the
rights of adopted children. The Civil Code of the
Philippines12 of 1950 on adoption, later modified by the
Child and Youth Welfare Code13 and then by the Family
Code of the Philippines,14 gave immediate statutory
110
acknowledgment to the rights of the adopted. In 1989,
the United Nations initiated the Convention of the Rights
of the Child. The Philippines, a State Party to the
Convention, accepted the principle that adoption was
impressed with social and moral responsibility, and that
its underlying intent was geared to favor the adopted
child. R.A. No. 8552 secured these rights and privileges
for the adopted. Most importantly, it affirmed the
legitimate status of the adopted child, not only in his new
family but also in the society as well. The new law
withdrew the right of an adopter to rescind the adoption
decree and gave to the adopted child the sole right to
sever the legal ties created by adoption.
Petitioner, however, would insist that R.A. No. 8552
should not adversely affect her right to annul the
adoption decree, nor deprive the trial court of its
jurisdiction to hear the case, both being vested under the
Civil Code and the Family Code, the laws then in force.
The concept of "vested right" is a consequence of the
constitutional guaranty of due process15 that expresses
a present fixed interest which in right reason and natural
justice is protected against arbitrary state action;16 it
includes not only legal or equitable title to the
enforcement of a demand but also exemptions from new
obligations created after the right has become
vested.17 Rights are considered vested when the right to
enjoyment is a present interest,18 absolute, unconditional,
and perfect19 or fixed and irrefutable.
In Republic vs. Court of Appeals,20 a petition to adopt
Jason Condat was filed by Zenaida C. Bobiles on 02
February 1988 when the Child and Youth Welfare Code
(Presidential Decree No. 603) allowed an adoption to be
sought by either spouse or both of them. After the trial
court had rendered its decision and while the case was
still pending on appeal, the Family Code of the
Philippines (Executive Order No. 209), mandating joint
adoption by the husband and wife, took effect. Petitioner
Republic argued that the case should be dismissed for
having been filed by Mrs. Bobiles alone and without
being joined by the husband. The Court concluded that
the jurisdiction of the court is determined by the statute
in force at the time of the commencement of the action.
The petition to adopt Jason, having been filed with the
court at the time when P.D. No. 603 was still in effect, the
right of Mrs. Bobiles to file the petition, without being
joined by her husband, according to the Court had
become vested. In Republic vs. Miller,21 spouses Claude
and Jumrus Miller, both aliens, sought to adopt Michael
Madayag. On 29 July 1988, the couple filed a petition to
formalize Michael's adoption having theretofore been
taken into their care. At the time the action was
commenced, P.D. No. 603 allowed aliens to adopt. After
the decree of adoption and while on appeal before the
Court of Appeals, the Family Code was enacted into law
on 08 August 1988 disqualifying aliens from adopting
Filipino children. The Republic then prayed for the
withdrawal of the adoption decree. In discarding the
argument posed by the Republic, the Supreme Court
ruled that the controversy should be resolved in the light
of the law governing at the time the petition was filed.
It was months after the effectivity of R.A. No. 8552 that
herein petitioner filed an action to revoke the decree of
adoption granted in 1975. By then, the new law,22 had
already abrogated and repealed the right of an adopter
under the Civil Code and the Family Code to rescind a
decree of adoption. Consistently with its earlier
pronouncements, the Court should now hold that the
action for rescission of the adoption decree, having been
initiated by petitioner after R.A. No. 8552 had come into
force, no longer could be pursued.
Interestingly, even before the passage of the statute, an
action to set aside the adoption is subject to the five-year
bar rule under Rule 10023 of the Rules of Court and that
the adopter would lose the right to revoke the adoption
decree after the lapse of that period. The exercise of the
right within a prescriptive period is a condition that could
not fulfill the requirements of a vested right entitled to
protection. It must also be acknowledged that a person
has no vested right in statutory privileges.24 While
adoption has often been referred to in the context of a
"right," the privilege to adopt is itself not naturally innate
or fundamental but rather a right merely created by
statute.25 It is a privilege that is governed by the state's
determination on what it may deem to be for the best
interest and welfare of the child.26 Matters relating to
adoption, including the withdrawal of the right of an
adopter to nullify the adoption decree, are subject to
regulation by the State.27 Concomitantly, a right of
action given by statute may be taken away at anytime
before it has been exercised.28
While R.A. No. 8552 has unqualifiedly withdrawn from an
adopter a consequential right to rescind the adoption
decree even in cases where the adoption might clearly
turn out to be undesirable, it remains, nevertheless, the
bounden duty of the Court to apply the law. Dura lex sed
lex would be the hackneyed truism that those caught in
the law have to live with. It is still noteworthy, however,
that an adopter, while barred from severing the legal ties
of adoption, can always for valid reasons cause the
forfeiture of certain benefits otherwise accruing to an
undeserving child. For instance, upon the grounds
recognized by law, an adopter may deny to an adopted
child his legitime and, by a will and testament, may freely
exclude him from having a share in the disposable
portion of his estate.
111
WHEREFORE, the assailed judgment of the court a quo is
AFFIRMED. No costs.
SO ORDERED.
G.R. No. 164948 June 27, 2006
DIWATA RAMOS LANDINGIN Petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, Respondent.
CALLEJO, SR., J.:
Assailed in this petition for review on certiorari under
Rule 45 of the Rules of Court is the Decision1 of the Court
of Appeals in CA-G.R. CV No. 77826 which reversed the
Decision2 of the Regional Trial Court (RTC) of Tarlac City,
Branch 63 in Civil Case No. 2733 granting the Petition for
Adoption of the petitioner herein.
The Antecedents
On February 4, 2002, Diwata Ramos Landingin, a citizen
of the United States of America (USA), of Filipino
parentage and a resident of Guam, USA, filed a
petition3 for the adoption of minors Elaine Dizon Ramos
who was born on August 31, 1986;4 Elma Dizon Ramos,
who was born on September 7, 1987;5 and Eugene Dizon
Ramos who was born on August 5, 1989.6 The minors are
the natural children of Manuel Ramos, petitioner’s
brother, and Amelia Ramos.
Landingin, as petitioner, alleged in her petition that when
Manuel died on May 19, 1990,7 the children were left to
their paternal grandmother, Maria Taruc Ramos; their
biological mother, Amelia, went to Italy, re-married there
and now has two children by her second marriage and no
longer communicated with her children by Manuel
Ramos nor with her in-laws from the time she left up to
the institution of the adoption; the minors are being
financially supported by the petitioner and her children,
and relatives abroad; as Maria passed away on November
23, 2000, petitioner desires to adopt the children; the
minors have given their written consent8 to the adoption;
she is qualified to adopt as shown by the fact that she is
a 57-year-old widow, has children of her own who are
already married, gainfully employed and have their
respective families; she lives alone in her own home in
Guam, USA, where she acquired citizenship, and works as
a restaurant server. She came back to the Philippines to
spend time with the minors; her children gave their
written consent9 to the adoption of the minors.
Petitioner’s brother, Mariano Ramos, who earns
substantial income, signified his willingness and
commitment to support the minors while in petitioner’s
custody.
Petitioner prayed that, after due hearing, judgment be
rendered in her favor, as follows:
WHEREFORE, it is most respectfully prayed to this
Honorable Court that after publication and hearing,
judgment be rendered allowing the adoption of the
minor children Elaine Dizon Ramos, Elma Dizon Ramos,
and Eugene Dizon Ramos by the petitioner, and ordering
that the minor children’s name follow the family name of
petitioner.
Petitioner prays for such other reliefs, just and equitable
under the premises.10
On March 5, 2002, the court ordered the Department of
Social Welfare and Development (DSWD) to conduct a
case study as mandated by Article 34 of Presidential
Decree No. 603, as amended, and to submit a report
thereon not later than April 4, 2002, the date set for the
initial hearing of the petition.11 The Office of the Solicitor
General (OSG) entered its appearance12 but deputized
the City Prosecutor of Tarlac to appear in its
behalf.13 Since her petition was unopposed, petitioner
was allowed to present her evidence ex parte.14
The petitioner testified in her behalf. She also presented
Elaine Ramos, the eldest of the adoptees, to testify on the
written consent executed by her and her siblings.15 The
petitioner marked in evidence the Affidavit of Consent
purportedly executed by her children Ann, Errol, Dennis
and Ricfel Branitley, all surnamed Landingin, and
notarized by a notary public in Guam, USA, as proof of
said consent.16
On May 24, 2002, Elizabeth Pagbilao, Social Welfare
Officer II of the DSWD, Field Office III, Tarlac, submitted a
Child Study Report, with the following recommendation:
In view of the foregoing, undersigned finds minors Elaine,
Elma & Eugene all surnamed Ramos, eligible for adoption
because of the following reasons:
1. Minors’ surviving parent, the mother has
voluntarily consented to their adoption by the
paternal aunt, Diwata Landingin this is in view
of her inability to provide the parental care,
guidance and support they need. An Affidavit of
Consent was executed by the mother which is
hereto attached.
2. The three minors subject for adoption have
also expressed their willingness to be adopted
112
 and joins the petitioners in Guam, USA in the
future. A joint Affidavit of consent is hereto
attached. The minors developed close
attachment to the petitioners and they
regarded her as second parent.
3. The minors are present under the care of a
temporary guardian who has also family to look
after. As young adolescents they really need
parental love, care, guidance and support to
ensure their protection and well being.
In view of the foregoing, it is hereby respectfully
recommended that minors Elaine D. Ramos, Elma D.
Ramos and Eugene D. Ramos be adopted by their
maternal aunt Diwata Landingin. Trial custody is hereby
further recommended to be dispensed with considering
that they are close relatives and that close attachments
was already developed between the petitioner and the 3
minors.17
Pagbilao narrated what transpired during her interview,
as follows:
The mother of minors came home together with her son
John Mario, this May 2002 for 3 weeks vacation. This is to
enable her appear for the personal interview concerning
the adoption of her children.
The plan for the adoption of minors by their paternal
aunt Diwata Landingin was conceived after the death of
their paternal grandmother and guardian. The paternal
relatives including the petitioner who attended the wake
of their mother were very much concerned about the
well-being of the three minors. While preparing for their
adoption, they have asked a cousin who has a family to
stay with minors and act as their temporary guardian.
The mother of minors was consulted about the adoption
plan and after weighing the benefits of adoption to her
children, she voluntarily consented. She realized that her
children need parental love, guidance and support which
she could not provide as she already has a second family
& residing in Italy. Knowing also that the petitioners &
her children have been supporting her children up to the
present and truly care for them, she believes her children
will be in good hands. She also finds petitioners in a
better position to provide a secured and bright future to
her children.18
However, petitioner failed to present Pagbilao as witness
and offer in evidence the voluntary consent of Amelia
Ramos to the adoption; petitioner, likewise, failed to
present any documentary evidence to prove that Amelia
assents to the adoption.
On November 23, 2002, the court, finding merit in the
petition for adoption, rendered a decision granting said
petition. The dispositive portion reads:
WHEREFORE, it is hereby ordered that henceforth, minors
Elaine Dizon Ramos, Elma Dizon Ramos, Eugene Dizon
Ramos be freed from all legal obligations obedience and
maintenance from their natural parents and that they be
declared for all legal intents and purposes the children of
Diwata Ramos Landingin. Trial custody is dispensed with
considering that parent-children relationship has long
been established between the children and the adoptive
parents. Let the surnames of the children be changed
from "Dizon-Ramos" to "Ramos-Landingin."
Let a copy of this decision be furnished the Local Civil
Registrar of Tarlac, Tarlac for him to effect the
corresponding changes/amendment in the birth
certificates of the above-mentioned minors.
SO ORDERED.19
The OSG appealed20 the decision to the Court of Appeals
on December 2, 2002. In its brief21 for the oppositor-
appellant, the OSG raised the following arguments:
I
THE TRIAL COURT ERRED IN GRANTING THE PETITION
FOR ADOPTION DESPITE THE LACK OF CONSENT OF THE
PROPOSED ADOPTEES’ BIOLOGICAL MOTHER.
II
THE TRIAL COURT ERRED IN GRANTING THE PETITION
FOR ADOPTION DESPITE THE LACK OF THE WRITTEN
CONSENT OF THE PETITIONER’S CHILDREN AS
REQUIRED BY LAW.
III
THE TRIAL COURT ERRED IN GRANTING THE PETITION
FOR ADOPTION DESPITE PETITIONER’S FAILURE TO
ESTABLISH THAT SHE IS IN A POSITION TO SUPPORT
THE PROPOSED ADOPTEES.
On April 29, 2004, the CA rendered a decision22 reversing
the ruling of the RTC. It held that petitioner failed to
adduce in evidence the voluntary consent of Amelia
Ramos, the children’s natural mother. Moreover, the
affidavit of consent of the petitioner’s children could not
also be admitted in evidence as the same was executed
in Guam, USA and was not authenticated or
acknowledged before a Philippine consular office, and
113
although petitioner has a job, she was not stable enough
to support the children. The dispositive portion of the CA
decision reads:
WHEREFORE, premises considered, the appealed decision
dated November 25, 2002 of the Regional Trial Court,
Branch 63, Tarlac City in Spec. Proc. No. 2733 is hereby
REVERSED and SET ASIDE.
SO ORDERED.23
Petitioner filed a Motion for Reconsideration24 on May
21, 2004, which the CA denied in its Resolution dated
August 12, 2004.25
Petitioner, thus, filed the instant petition for review on
certiorari26 on September 7, 2004, assigning the following
errors:
1. THAT THE HONORABLE LOWER COURT HAS
OVERLOOKED AND MISAPPLIED SOME FACTS
AND CIRCUMSTANCES WHICH ARE OF WEIGHT
AND IMPORTANCE AND WHICH IF
CONSIDERED WOULD HAVE AFFECTED THE
RESULT OF THE CASE.
2. THAT THE HONORABLE LOWER COURT
ERRED IN CONCLUDING THAT THE
PETITIONER-APPELLEE IS NOT FINANCIALLY
CAPABLE TO SUPPORT THE THREE CHILDREN.27
The issues raised by the parties in their pleadings are the
following: (a) whether the petitioner is entitled to adopt
the minors without the written consent of their biological
mother, Amelia Ramos; (b) whether or not the affidavit of
consent purportedly executed by the petitioner-adopter’s
children sufficiently complies with the law; and (c)
whether or not petitioner is financially capable of
supporting the adoptees.
The Court’s Ruling
The petition is denied for lack of merit.
It has been the policy of the Court to adhere to the
liberal concept, as stated in Malkinson v. Agrava,28 that
adoption statutes, being humane and salutary, hold the
interest and welfare of the child to be of paramount
consideration and are designed to provide homes,
parental care and education for unfortunate, needy or
orphaned children and give them the protection of
society and family in the person of the adopter 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. Every reasonable intendment
should thus be sustained to promote and fulfill these
noble and compassionate objectives of the law.29
However, in Cang v. Court of Appeals,30 the Court also
ruled that the liberality with which this Court treats
matters leading to adoption insofar as it carries out the
beneficent purposes of the law to ensure the rights and
privileges of the adopted child arising therefrom, ever
mindful that the paramount consideration is the overall
benefit and interest of the adopted child, should be
understood in its proper context and perspective. The
Court’s position should not be misconstrued or
misinterpreted as to extend to inferences beyond the
contemplation of law and jurisprudence. Thus, the
discretion to approve adoption proceedings is not to be
anchored solely on best interests of the child but
likewise, with due regard to the natural rights of the
parents over the child.31
Section 9 of Republic Act No. 8552, otherwise known as
the Domestic Adoption Act of 1998, provides:
Sec. 9. Whose Consent is Necessary to the Adoption. -
After being properly counseled and informed of his/her
right to give or withhold his/her approval of the
adoption, the written consent of the following to the
adoption is hereby required:
(a) The adoptee, if ten (10) years of age or over;
(b) The biological parent(s) of the child, if
known, or the legal guardian, or the proper
government instrumentality which has legal
custody of the child;
(c) The legitimate and adopted sons/daughters,
ten (10) years of age or over, of the adopter(s)
and adoptee, if any;
(d) The illegitimate sons/daughters, ten (10)
years of age or over, of the adopter, if living
with said adopter and the latter’s souse, if any;
(e) The spouse, if any, of the person adopting or
to be adopted.
The general requirement of consent and notice to the
natural parents is intended to protect the natural parental
relationship from unwarranted interference by
interlopers, and to insure the opportunity to safeguard
the best interests of the child in the manner of the
proposed adoption.32
114
Clearly, the written consent of the biological parents is
indispensable for the validity of a decree of adoption.
Indeed, the natural right of a parent to his child requires
that his consent must be obtained before his parental
rights and duties may be terminated and re-established
in adoptive parents. In this case, petitioner failed to
submit the written consent of Amelia Ramos to the
adoption.
We note that in her Report, Pagbilao declared that she
was able to interview Amelia Ramos who arrived in the
Philippines with her son, John Mario in May 2002. If said
Amelia Ramos was in the Philippines and Pagbilao was
able to interview her, it is incredible that the latter would
not require Amelia Ramos to execute a Written Consent
to the adoption of her minor children. Neither did the
petitioner bother to present Amelia Ramos as witness in
support of the petition.
Merely permitting the child to remain for a time
undisturbed in the care of others is not such an
abandonment.35 To dispense with the requirement of
consent, the abandonment must be shown to have
existed at the time of adoption.36
In this case, petitioner relied solely on her testimony and
that of Elaine Ramos to prove her claim that Amelia
Ramos had abandoned her children. Petitioner’s
testimony on that matter follows:
Q Where is the mother of these three children now?
A She left for Italy on November 20, 1990, sir.
Q At the time when Amelia Ramos left for Italy, was there
an instance where she communicated with the family?

Petitioner, nonetheless, argues that the written consent A None, sir.

of the biological mother is no longer necessary because
when Amelia’s husband died in 1990, she left for Italy and Q How about with her children?
never came back. The children were then left to the
guidance and care of their paternal grandmother. It is the A None, sir.
paternal relatives, including petitioner, who provided for
the children’s financial needs. Hence, Amelia, the
Q Do you know what place in Italy did she reside?
biological mother, had effectively abandoned the
children. Petitioner further contends that it was by twist
of fate that after 12 years, when the petition for adoption A I do not know, sir.
was pending with the RTC that Amelia and her child by
her second marriage were on vacation in the Philippines. Q Did you receive any news about Amelia Ramos?
Pagbilao, the DSWD social worker, was able to meet her,
and during the meeting, Amelia intimated to the social A What I know, sir, was that she was already married with
worker that she conformed to the adoption of her three another man.
children by the petitioner.
Q From whom did you learn that?
Petitioner’s contention must be rejected. When she filed
her petition with the trial court, Rep. Act No. 8552 was A From others who came from Italy, sir.
already in effect. Section 9 thereof provides that if the
written consent of the biological parents cannot be
Q Did you come to know whether she has children by her
obtained, the written consent of the legal guardian of the
second marriage?
minors will suffice. If, as claimed by petitioner, that the
biological mother of the minors had indeed abandoned
them, she should, thus have adduced the written consent A Yes, sir, she got two kids.37
of their legal guardian.
Elaine, the eldest of the minors, testified, thus:
Ordinarily, abandonment by a parent to justify the
adoption of his child without his consent, is a conduct Q Where is your mother now?
which evinces a settled purpose to forego all parental
duties.33 The term means neglect and refusal to perform A In Italy, sir.
the filial and legal obligations of love and support. If a
parent withholds presence, love, care, the opportunity to
Q When did your mother left for Italy?
display filial affection, and neglects to lend support and
maintenance, the parent, in effect, abandons the child.34
A After my father died, sir.

115
Q How old were you when your mother left for Italy in
1990?
A Two years old, sir.
Q At the time when your mother left for Italy, did your
mother communicate with you?
A No, sir.38
However, the Home Study Report of the DSWD Social
Worker also stated the following:
IV. Background of the Case:
xxxx
Since the mother left for Italy, minors siblings had been
under the care and custody of their maternal
grandmother. However, she died in Nov. 2001 and an
uncle, cousin of their deceased father now serves as their
guardian. The petitioner, together with her children and
other relatives abroad have been supporting the minor
children financially, even during the time that they were
still living with their natural parents. Their mother also
sends financial support but very minimal.39
xxxx
V. Background Information about the Minors Being
Sought for Adoption:
xxxx
As the eldest she tries her best to be a role model to her
younger siblings. She helps them in their lessons, works
and has fun with them. She also encourages openness on
their problems and concerns and provides petty
counseling. In serious problems she already consult (sic)
her mother and petitioner-aunt.40
xxxx
In their 5 years of married life, they begot 3 children,
herein minors, Amelia recalled that they had a happy and
comfortable life. After the death of her husband, her in-
laws which include the petitioner had continued
providing support for them. However being ashamed of
just depending on the support of her husband’s relatives,
she decided to work abroad. Her parents are also in need
of financial help as they are undergoing maintenance
medication. Her parents mortgaged their farm land which
she used in going to Italy and worked as domestic helper.
When she left for Italy in November 1990, she entrusted
her 3 children to the care & custody of her mother-in-law
who returned home for good, however she died on
November 2000.
While working in Italy, she met Jun Tayag, a married man
from Tarlac. They became live-in partners since 1995 and
have a son John Mario who is now 2 years old. The three
of them are considered Italian residents. Amelia claimed
that Mr. Tayag is planning to file an annulment of his
marriage and his wife is amenable to it. He is providing
his legitimate family regular support.
Amelia also sends financial support ranging from
P10,000-P15,000 a month through her parents who share
minimal amount of P3,000-P5,000 a month to his (sic)
children. The petitioner and other paternal relatives are
continuously providing support for most of the needs &
education of minors up to present.41
Thus, when Amelia left for Italy, she had not intended to
abandon her children, or to permanently sever their
mother-child relationship. She was merely impelled to
leave the country by financial constraints. Yet, even while
abroad, she did not surrender or relinquish entirely her
motherly obligations of rearing the children to her now
deceased mother-in-law, for, as claimed by Elaine herself,
she consulted her mother, Amelia, for serious personal
problems. Likewise, Amelia continues to send financial
support to the children, though in minimal amounts as
compared to what her affluent in-laws provide.
Let it be emphasized, nevertheless, that the adoption of
the minors herein will have the effect of severing all legal
ties between the biological mother, Amelia, and the
adoptees, and that the same shall then be vested on the
adopter.42 It would thus be against the spirit of the law if
financial consideration were to be the paramount
consideration in deciding whether to deprive a person of
parental authority over his/her children. More proof has
to be adduced that Amelia has emotionally abandoned
the children, and that the latter will not miss her
guidance and counsel if they are given to an adopting
parent.43 Again, it is the best interest of the child that
takes precedence in adoption.
Section 34, Rule 132 of the Rules of Court provides that
the Court shall consider no evidence which has not been
formally offered. The purpose for which the evidence is
offered must be specified. The offer of evidence is
necessary because it is the duty of the Court to rest its
findings of fact and its judgment only and strictly upon
the evidence offered by the parties. Unless and until
admitted by the court in evidence for the purpose or
purposes for which such document is offered, the same is
merely a scrap of paper barren of probative weight. Mere
116
identification of documents and the markings thereof as
exhibits do not confer any evidentiary weight on
documents unless formally offered.44
Petitioner failed to offer in evidence Pagbilao’s Report
and of the Joint Affidavit of Consent purportedly
executed by her children; the authenticity of which she,
likewise, failed to prove. The joint written consent of
petitioner’s children45 was notarized on January 16, 2002
in Guam, USA; for it to be treated by the Rules of Court in
the same way as a document notarized in this country it
needs to comply with Section 2 of Act No. 2103,46 which
states:
Section 2. An instrument or document acknowledged and
authenticated in a foreign country shall be considered
authentic if the acknowledgment and authentication are
made in accordance with the following requirements:
(a) The acknowledgment shall be made before
(1) an ambassador, minister, secretary of
legation, chargé d affaires, consul, vice-consul,
or consular agent of the Republic of the
Philippines, acting within the country or place
to which he is accredited, or (2) a notary public
or officer duly authorized by law of the country
to take acknowledgments of instruments or
documents in the place where the act is done.
(b) The person taking the acknowledgment
shall certify that the person acknowledging the
instrument or document is known to him, and
that he is the same person who executed it, and
acknowledged that the same is his free act and
deed. The certificate shall be under his official
seal, if he is by law required to keep a seal, and
if not, his certificate shall so state. In case the
acknowledgment is made before a notary
public or an officer mentioned in subdivision (2)
of the preceding paragraph, the certificate of
the notary public or the officer taking the
acknowledgment shall be authenticated by an
ambassador, minister, secretary of legation,
chargé de affaires, consul, vice-consul, or
consular agent of the Republic of the
Philippines, acting within the country or place
to which he is accredited. The officer making
the authentication shall certify under his official
seal that the person who took the
acknowledgment was at the time duly
authorized to act as notary public or that he
was duly exercising the functions of the office
by virtue of which he assumed to act, and that
as such he had authority under the law to take
acknowledgment of instruments or documents
in the place where the acknowledgment was
taken, and that his signature and seal, if any, are
genuine.
As the alleged written consent of petitioner’s legitimate
children did not comply with the afore-cited law, the
same can at best be treated by the Rules as a private
document whose authenticity must be proved either by
anyone who saw the document executed or written; or by
evidence of the genuineness of the signature or
handwriting of the makers.47
Since, in the instant case, no further proof was introduced
by petitioner to authenticate the written consent of her
legitimate children, the same is inadmissible in evidence.
In reversing the ruling of the RTC, the CA ruled that
petitioner was not stable enough to support the children
and is only relying on the financial backing, support and
commitment of her children and her siblings.48 Petitioner
contradicts this by claiming that she is financially capable
as she has worked in Guam for 14 years, has savings, a
house, and currently earns $5.15 an hour with tips of not
less than $1,000.00 a month. Her children and siblings
have likewise committed themselves to provide financial
backing should the need arise. The OSG, again in its
comment, banks on the statement in the Home Study
Report that "petitioner has limited income." Accordingly,
it appears that she will rely on the financial backing of
her children and siblings in order to support the minor
adoptees. The law, however, states that it is the adopter
who should be in a position to provide support in
keeping with the means of the family.
Since the primary consideration in adoption is the best
interest of the child, it follows that the financial capacity
of prospective parents should also
be carefully evaluated and considered. Certainly, the
adopter should be in a position to support the would-be
adopted child or children, in keeping with the means of
the family.
According to the Adoption Home Study
Report49 forwarded by the Department of Public Health
& Social Services of the Government of Guam to the
DSWD, petitioner is no longer supporting her legitimate
children, as the latter are already adults, have individual
lives and families. At the time of the filing of the petition,
petitioner was 57 years old, employed on a part-time
basis as a waitress, earning $5.15 an hour and tips of
around $1,000 a month. Petitioner’s main intention in
adopting the children is to bring the latter to Guam, USA.
She has a house at Quitugua Subdivision in Yigo, Guam,
but the same is still being amortized. Petitioner likewise
knows that the limited income might be a hindrance to
the adoption proceedings.
117
Given these limited facts, it is indeed doubtful whether
petitioner will be able to sufficiently handle the financial
aspect of rearing the three children in the US. She only
has a part-time job, and she is rather of age. While
petitioner claims that she has the financial support and
backing of her children and siblings, the OSG is correct in
stating that the ability to support the adoptees is
personal to the adopter, as adoption only creates a legal
relation between the former and the latter. Moreover, the
records do not prove nor support petitioner’s allegation
that her siblings and her children are financially able and
that they are willing to support the minors herein. The
Court, therefore, again sustains the ruling of the CA on
this issue.
While the Court recognizes that petitioner has only the
best of intentions for her nieces and nephew, there are
legal infirmities that militate against reversing the ruling
of the CA. In any case, petitioner is not prevented from
filing a new petition for adoption of the herein minors.
WHEREFORE, premises considered, the petition is hereby
DENIED.
SO ORDERED.
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.
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 own. They sent the children to exclusive
schools. They used the surname "Lim" in all their school
records and documents. Unfortunately, on 28 November
1998, Lim died. On 27 December 2000, petitioner married
Angel Olario (Olario), an American citizen.
Thereafter, petitioner decided to adopt the children by
availing of the amnesty5 given under Republic Act No.
85526 (RA 8552) to those individuals who simulated the
birth of a child. Thus, on 24 April 2002, petitioner filed
separate petitions for the adoption of Michelle and
Michael before the trial court docketed as SPL PROC.
Case Nos. 1258 and 1259, respectively. At the time of the
filing of the petitions for adoption, Michelle was 25 years
old and already married, while Michael was 18 years and
seven months old.
Michelle and her husband gave their consent to the
adoption as evidenced by their Affidavits of
Consent.7 Michael also gave his consent to his adoption
as shown in his Affidavit of Consent.8 Petitioner’s
husband Olario likewise executed an Affidavit of
Consent9 for the adoption of Michelle and Michael.
In the Certification issued by the Department of Social
Welfare and Development (DSWD), Michelle was
considered as an abandoned child and the whereabouts
of her natural parents were unknown.10 The DSWD issued
a similar Certification for Michael.11
The Ruling of the Trial Court
On 15 September 2004, the trial court rendered
judgment dismissing the petitions. The trial court ruled
that since petitioner had remarried, petitioner should
have filed the petition jointly with her new husband. The
trial court ruled that joint adoption by the husband and
the wife is mandatory citing Section 7(c), Article III of RA
8552 and Article 185 of the Family Code.
118
Petitioner filed a Motion for Reconsideration of the
decision but the motion was denied in the Order dated
16 June 2005. In denying the motion, the trial court ruled
that petitioner did not fall under any of the exceptions
under Section 7(c), Article III of RA 8552. Petitioner’s
argument that mere consent of her husband would
suffice was untenable because, under the law, there are
additional requirements, such as residency and
certification of his qualification, which the husband, who
was not even made a party in this case, must comply.
As to the argument that the adoptees are already
emancipated and joint adoption is merely for the joint
exercise of parental authority, the trial court ruled that
joint adoption is not only for the purpose of exercising
parental authority because an emancipated child acquires
certain rights from his parents and assumes certain
obligations and responsibilities.
Hence, the present petition.
Issue
Petitioner appealed directly to this Court raising the sole
issue of whether or not petitioner, who has remarried,
can singly adopt.
The Court’s Ruling
Petitioner contends that the rule on joint adoption must
be relaxed because it is the duty of the court and the
State to protect the paramount interest and welfare of
the child to be adopted. Petitioner argues that the legal
maxim "dura lex sed lex" is not applicable to adoption
cases. She argues that joint parental authority is not
necessary in this case since, at the time the petitions were
filed, Michelle was 25 years old and already married,
while Michael was already 18 years of age. Parental
authority is not anymore necessary since they have been
emancipated having attained the age of majority.
We deny the petition.
Joint Adoption by Husband and Wife
It is undisputed that, at the time the petitions for
adoption were filed, petitioner had already remarried.
She filed the petitions by herself, without being joined by
her husband Olario. We have no other recourse but to
affirm the trial court’s decision denying the petitions for
adoption. Dura lex sed lex. The law is explicit. Section 7,
Article III of RA 8552 reads:
SEC. 7. Who May Adopt. - The following may adopt:
(a) Any Filipino citizen of legal age, in
possession of full civil capacity and legal rights,
of good moral character, has not been
convicted of any crime involving moral
turpitude, emotionally and psychologically
capable of caring for children, at least sixteen
(16) years older than the adoptee, and who is in
a position to support and care for his/her
children in keeping with the means of the
family. The requirement of sixteen (16) year
difference between the age of the adopter and
adoptee may be waived when the adopter is
the biological parent of the adoptee, or is the
spouse of the adoptee’s parent;
(b) Any alien possessing the same qualifications
as above stated for Filipino nationals: Provided,
That his/her country has diplomatic relations
with the Republic of the Philippines, that he/she
has been living in the Philippines for at least
three (3) continuous years prior to the filing of
the application for adoption and maintains such
residence until the adoption decree is entered,
that he/she has been certified by his/her
diplomatic or consular office or any appropriate
government agency that he/she has the legal
capacity to adopt in his/her country, and that
his/her government allows the adoptee to enter
his/her country as his/her adopted
son/daughter: Provided, further, That the
requirements on residency and certification of
the alien’s qualification to adopt in his/her
country may be waived for the following:
(i) a former Filipino citizen who seeks
to adopt a relative within the fourth
(4th) degree of consanguinity or
affinity; or
(ii) one who seeks to adopt the
legitimate son/daughter of his/her
Filipino spouse; or
(iii) one who is married to a Filipino
citizen and seeks to adopt jointly with
his/her spouse a relative within the
fourth (4th) degree of consanguinity
or affinity of the Filipino spouses; or
(c) The guardian with respect to the ward after
the termination of the guardianship and
clearance of his/her financial accountabilities.
Husband and wife shall jointly adopt, except in
the following cases:
119
 (i) if one spouse seeks to adopt the
legitimate son/daughter of the other;
or
(ii) if one spouse seeks to adopt
his/her own illegitimate
son/daughter: Provided,
however, That the other spouse has
signified his/her consent thereto; or
(iii) if the spouses are legally
separated from each other.
In case husband and wife jointly adopt, or one spouse
adopts the illegitimate son/daughter of the other, joint
parental authority shall be exercised by the spouses.
(Emphasis supplied)
The use of the word "shall" in the above-quoted
provision means that joint adoption by the husband and
the wife is mandatory. This is in consonance with the
concept of joint parental authority over the child which is
the ideal situation. As the child to be adopted is elevated
to the level of a legitimate child, it is but natural to
require the spouses to adopt jointly. The rule also insures
harmony between the spouses.12
The law is clear. There is no room for ambiguity.
Petitioner, having remarried at the time the petitions for
adoption were filed, must jointly adopt. Since the
petitions for adoption were filed only by petitioner
herself, without joining her husband, Olario, the trial
court was correct in denying the petitions for adoption
on this ground.
Neither does petitioner fall under any of the three
exceptions enumerated in Section 7. First, the children to
be adopted are not the legitimate children of petitioner
or of her husband Olario. Second, the children are not
the illegitimate children of petitioner. And third,
petitioner and Olario are not legally separated from each
other.
The fact that Olario gave his consent to the adoption as
shown in his Affidavit of Consent does not suffice. There
are certain requirements that Olario must comply being
an American citizen. He must meet the qualifications set
forth in Section 7 of RA 8552 such as: (1) he must prove
that his country has diplomatic relations with the
Republic of the Philippines; (2) he must have been living
in the Philippines for at least three continuous years prior
to the filing of the application for adoption; (3) he must
maintain such residency until the adoption decree is
entered; (4) he has legal capacity to adopt in his own
country; and (5) the adoptee is allowed to enter the
adopter’s country as the latter’s adopted child. None of
these qualifications were shown and proved during the
trial.
These requirements on residency and certification of the
alien’s qualification to adopt cannot likewise be waived
pursuant to Section 7. The children or adoptees are not
relatives within the fourth degree of consanguinity or
affinity of petitioner or of Olario. Neither are the
adoptees the legitimate children of petitioner.
Effects of Adoption
Petitioner contends that joint parental authority is not
anymore necessary since the children have been
emancipated having reached the age of majority. This is
untenable.
Parental authority includes caring for and rearing the
children for civic consciousness and efficiency and the
development of their moral, mental and physical
character and well-being.13 The father and the mother
shall jointly exercise parental authority over the persons
of their common children.14 Even the remarriage of the
surviving parent shall not affect the parental authority
over the children, unless the court appoints another
person to be the guardian of the person or property of
the children.15
It is true that when the child reaches the age of
emancipation — that is, when he attains the age of
majority or 18 years of age16 — emancipation terminates
parental authority over the person and property of the
child, who shall then be qualified and responsible for all
acts of civil life.17 However, parental authority is merely
just one of the effects of legal adoption. Article V of RA
8552 enumerates the effects of adoption, thus:
ARTICLE V
EFFECTS OF ADOPTION
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.
120
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. 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.
SO ORDERED.
G.R. No. 188801, October 15, 2014
ROSARIO MATA CASTRO AND JOANNE BENEDICTA
CHARISSIMA M. CASTRO, A.K.A. "MARIA SOCORRO M.
CASTRO" AND "JAYROSE M. CASTRO," Petitioners, v. JOSE
MARIA JED LEMUEL GREGORIO AND ANA MARIA REGINA
GREGORIO, Respondents.
DECISION
LEONEN, J.:
The policy of the law is clear. In order to maintain
harmony, there must be a showing of notice and consent.
This cannot be defeated by mere procedural devices. In
all instances where it appears that a spouse attempts to
adopt a child out of wedlock, the other spouse and other
legitimate children must be personally notified through
personal service of summons. It is not enough that they
be deemed notified through constructive service.
This is a petition for review on certiorari1 assailing the
121
decision2 of the Court of Appeals in CA-G.R. SP No.
101021, which denied the petition for annulment of
judgment filed by petitioners. The petition before the
appellate court sought to annul the judgment of the trial
court that granted respondents' decree of
adoption.3chanrobleslaw
The case originally stemmed from the adoption of Jose
Maria Jed Lemuel Gregorio (Jéd) and Ana Maria Regina
Gregorio (Regina) by Atty. Jose G. Castro (Jose). Jose is
the estranged husband of Rosario Mata Castro (Rosario)
and the father of Joanne Benedicta Charissima M. Castro
(Joanne), also known by her baptismal name, "Maria
Socorro M. Castro" and her nickname, "Jayrose."
Rosario alleged that she and Jose were married on
August 5, 1962 in Laoag City. Their marriage had
allegedly been troubled. They had a child, Rose Marie,
who was born in 1963, but succumbed to congenital
heart disease and only lived for nine days. Rosario
allegedly left Jose after a couple of months because of
the incompatibilities between them.4chanrobleslaw
Rosario and Jose, however, briefly reconciled in 1969.
Rosario gave birth to Joanne a year later. She and Jose
allegedly lived as husband and wife for about a year even
if she lived in Manila and Jose stayed in Laoag City. Jose
would visit her in Manila during weekends. Afterwards,
they separated permanently because Rosario alleged that
Jose had homosexual tendencies.5 She insisted, however,
that they "remained friends for fifteen (15) years despite
their separation(.)"6chanrobleslaw
On August 1, 2000, Jose filed a petition7 for adoption
before the Regional Trial Court of Batac, Ilocos Norte. In
the petition, he alleged that Jed and Regina were his
illegitimate children with Lilibeth Fernandez Gregorio
(Lilibeth),8 whom Rosario alleged was his erstwhile
housekeeper.9 At the time of the filing of the petition,
Jose was 70 years old.10chanrobleslaw
According to the Home Study Report11 conducted by the
Social Welfare Officer of the trial court, Jose belongs to a
prominent and respected family, being one of the three
children of former Governor Mauricio Castro.
He was also a well-known lawyer in Manila and Ilocos
Norte.12 The report mentioned that he was once married
to Rosario, but the marriage did not produce any
children.13 It also stated that he met and fell in love with
Lilibeth in 1985, and Lilibeth was able to bear him two
children, Jed on August 1987, and Regina on March
1989.14 Under "Motivation for Adoption," the social
welfare officer noted:chanRoblesvirtualLawlibrary
Since, he has no child with his marriaged [sic] to Rosario
Mata, he was not able to fulfill his dreams to parent a
child. However, with the presence of his 2 illegitimate
children will fulfill his dreams [sic] and it is his intention
to legalize their relationship and surname. . . .15
At the time of the report, Jose was said to be living with
Jed and Regina temporarily in Batac, Ilocos Norte.16 The
children have allegedly been in his custody since
Lilibeth's death in July 1995.17chanrobleslaw
On October 16, 2000, the trial court approved the
adoption,18 having ruled that "[n]o opposition had been
received by this Court from any person including the
government which was represented by the Office of the
Solicitor General."19 A certificate of finality20 was issued
on February 9, 2006.
Meanwhile, on July 3, 2006, Rosario, through her lawyer,
Atty. Rene V. Saguisag, filed a complaint for disbarment
against Jose with the Integrated Bar of the
Philippines.21 In her complaint, she alleged that Jose had
been remiss in providing support for their daughter,
Joanne, for the past 36 years.22 She alleged that she
single-handedly raised and provided financial support to
Joanne while Jose had been showering gifts to his driver
and alleged lover, Larry R. Rentegrado (Larry), and even
went to the extent of adopting Larry's two children, Jed
and Regina, without her and Joanne's knowledge and
consent.23 She also alleged that Jose made blatant lies to
the trial court by alleging that Jed and Regina were his
illegitimate children with Larry's wife, Lilibeth, to cover up
for his homosexual relationship with
Larry.24chanrobleslaw
In his answer before the Integrated Bar of the Philippines,
Jose denies being remiss in his fatherly duties to Joanne
during her minority. He alleged that he always offered
help, but it was often declined.25 He also alleged that he
adopted Jed and Regina because they are his illegitimate
children. He denied having committed any of the
falsification alluded to by Rosario. He also stated that he
had suffered a stroke in 1998 that left him paralyzed. He
alleged that his income had been diminished because
several properties had to be sold to pay for medical
treatments.26 He then implored the Integrated Bar of the
Philippines to weigh on the case with "justice and
equity."27chanrobleslaw
On October 8, 2006, Jose died in Laoag City, Ilocos
Norte.28chanrobleslaw
On October 18, 2007, Rosario and Joanne filed a petition
for annulment of judgment under Rule 47 of the Rules of
Civil Procedure with the Court of Appeals, seeking to
annul the October 16, 2000 decision of the trial court
approving Jed and Regina's adoption.29chanrobleslaw
In their petition, Rosario and Joanne allege that they
122
learned of the adoption sometime in 2005.30 They allege
that Rosario's affidavit of consent, marked by the trial
court as "Exh. K,"31 was fraudulent.32 They also allege that
Jed and Regina's birth certificates showed different sets
of information, such as the age of their mother, Lilibeth,
at the time she gave birth. They argue that one set of
birth certificates states the father to be Jose and in
another set of National Statistic Office certificates shows
the father to be Larry, Jose's driver and alleged lover.33 It
was further alleged that Jed and Regina are not actually
Jose's illegitimate children but the legitimate children of
Lilibeth and Larry who were married at the time of their
birth.34chanrobleslaw
On May 26, 2009, the Court of Appeals denied the
petition.
While admittedly, no notice was given by the trial court
to Rosario and Joanne of the adoption, the appellate
court ruled that there is "no explicit provision in the rules
that the spouse and legitimate child of the adopter . . .
should be personally notified of the
hearing."35chanrobleslaw
The appellate court "abhor[red] the mind baffling scheme
employed by [Jose] in obtaining an adoption decree in
favor of [his illegitimate children] to the prejudice of the
interests of his legitimate heirs"36 but stated that its
hands were bound by the trial court decision that had
already attained "finality and
immutability."37chanrobleslaw
The appellate court also ruled that the alleged fraudulent
information contained in the different sets of birth
certificates required the determination of the identities of
the persons stated therein and was, therefore, beyond
the scope of the action for annulment of judgment. The
alleged fraud was also perpetrated during the trial and
could not be classified as extrinsic fraud, which is
required in an action for annulment of
judgment.38chanrobleslaw
When Rosario and Joanne's motion for reconsideration
was denied on July 10, 2009,39 they filed this petition.
The issue before this court is whether the Court of
Appeals erred in denying the petition for annulment for
failure of petitioners to (1) show that the trial court
lacked jurisdiction and (2) show the existence of extrinsic
fraud.
In their petition, petitioners argue that the appellate
court erred in its application of the law on extrinsic fraud
as ground to annul a judgment.40 They argue that
because of the fabricated consent obtained by Jose and
the alleged false information shown in the birth
certificates presented as evidence before the trial
court,41 they were not given the opportunity to oppose
the petition since the entire proceedings were concealed
from them.42chanrobleslaw
Petitioners also argue that the appellate court
misunderstood and misapplied the law on jurisdiction
despite the denial of due process, notice, and non-
inclusion of indispensable parties.43 They argue that the
adoption of illegitimate children requires the consent,
not only of the spouse, but also the legitimate children
10 years or over of the adopter, and such consent was
never secured from Joanne.44chanrobleslaw
Respondents, however, argue in their comment that
petitioners could not have been deprived of their day in
court since their interest was "amply protected by the
participation and representation of the Solicitor General
through the deputized public
prosecutor."45chanrobleslaw
Respondents also argue that there was constructive
notice through publication for three consecutive weeks in
a newspaper of general circulation, which constitutes not
only notice to them but also notice to the world of the
adoption proceedings.46 They argue that since the
alleged fraud was perpetrated during the trial, it cannot
be said to be extrinsic fraud but intrinsic fraud, which is
not a ground for annulment of judgment.47 They also
argue that petitioners were not indispensable parties
because adoption is an action in rem and, as such, the
only indispensable party is the state.48chanrobleslaw
The petition is granted.
Annulment of judgment under Rule 47
of the Rules of Civil Procedure
Under Rule 47, Section 1 of the Rules of Civil Procedure, a
party may file an action with the Court of Appeals to
annul judgments or final orders and resolutions in civil
actions of Regional Trial Courts. This remedy will only be
available if "the ordinary remedies of new trial, appeal,
petition for relief or other appropriate remedies are no
longer available through no fault of the
petitioner."49chanrobleslaw
In Dare Adventure Farm Corporation v. Court of
Appeals:50chanrobleslaw
A petition for annulment of judgment is a remedy in
equity so exceptional in nature that it may be availed of
only when other remedies are wanting, and only if the
judgment, final order or final resolution sought, to be
annulled was rendered by a court lacking jurisdiction or
through extrinsic fraud. Yet, the remedy, being
exceptional in character, is not allowed to be so easily
and readily abused by parties aggrieved by the final
123
judgments, orders or resolutions. The Court has thus
instituted safeguards by limiting the grounds for the
annulment to lack of jurisdiction and extrinsic fraud, and
by prescribing in Section 1 of Rule 47 of the Rules of
Court that the petitioner should show that the ordinary
remedies of new trial, appeal, petition for relief or other
appropriate remedies are no longer available through no
fault of the petitioner. A petition for annulment that
ignores or disregards any of the safeguards cannot
prosper.
The attitude of judicial reluctance towards the annulment
of a judgment, final order or final resolution is
understandable, for the remedy disregards the time-
honored doctrine of immutability and unalterability of
final judgments, a solid corner stone in the dispensation
of justice by the courts. The doctrine of immutability and
unalterability serves a two-fold purpose, namely: (a) to
avoid delay in the administration of justice and thus,
procedurally, to make orderly the discharge of judicial
business; and (b) to put an end to judicial controversies,
at the risk of occasional errors, which is precisely why the
courts exist. As to the first, a judgment that has acquired
finality becomes immutable and unalterable and is no
longer to be modified in any respect even if the
modification is meant to correct an erroneous conclusion
of fact or of law, and whether the modification is made
by the court that rendered the decision or by the highest
court of the land. As to the latter, controversies cannot
drag on indefinitely because fundamental considerations
of public policy and sound practice demand that the
rights and obligations of every litigant must not hang in
suspense for an indefinite period of time.51 (Emphasis
supplied)
Because of the exceptional nature of the remedy, there
are only two grounds by which annulment of judgment
may be availed of: extrinsic fraud, which must be brought
four years from discovery, and lack of jurisdiction, which
must be brought before it is barred by estoppel or
laches.52chanrobleslaw
Lack of jurisdiction under this rule means lack of
jurisdiction over the nature of the action or subject
matter, or lack of jurisdiction over the parties.53 Extrinsic
fraud, on the other hand, is "[that which] prevents a party
from having a trial or from presenting his entire case to
the court, or [that which] operates upon matters
pertaining not to the judgment itself but to the manner
in which it is procured."54chanrobleslaw
The grant of adoption over respondents should be
annulled as the trial court did not validly acquire
jurisdiction over the proceedings, and the favorable
decision was obtained through extrinsic fraud.
Jurisdiction over adoption proceedings
vis-a-vis the law on adoption
Petitioners argue that they should have been given
notice by the trial court of the adoption, as adoption laws
require their consent as a requisite in the proceedings.
Petitioners are correct.
It is settled that "the jurisdiction of the court is
determined by the statute in force at the time of the
commencement of the action."55 As Jose filed the petition
for adoption on August 1, 2000, it is Republic Act No.
855256 which applies over the proceedings. The law on
adoption requires that the adoption by the father of a
child born out of wedlock obtain not only the consent of
his wife but also the consent of his legitimate children.
Under Article III, Section 7 of Republic Act No. 8552, the
husband must first obtain the consent of his wife if he
seeks to adopt his own children born out of
wedlock:chanRoblesvirtualLawlibrary
ARTICLE III
ELIGIBILITY
SEC. 7. Who May Adopt. — The following may
adopt:chanroblesvirtuallawlibrary
Husband and wife shall jointly adopt, except in the
following cases:chanroblesvirtuallawlibrary
(i) if one spouse seeks to adopt the legitimate
son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate
son/daughter: Provided, however, That the other spouse
has signified, his/her consent thereto; or
(iii) if the spouses are legally separated from each other. .
. (Emphasis supplied)
The provision is mandatory. As a general rule, the
husband and wife must file a joint petition for adoption.
The rationale for this is stated in In Re: Petition for
Adoption of Michelle P. Lim:57chanrobleslaw
The use of the word "shall" in the above-quoted
provision means that joint adoption by the husband and
the wife is mandatory. This is in consonance with the
concept of joint parental authority over the child which is
the ideal situation. As the child to be adopted is elevated
to the level of a legitimate child, it is but natural to
require the spouses to adopt jointly. The rule also insures
harmony between the spouses.58
The law provides for several exceptions to the general
rule, as in a situation where a spouse seeks to adopt his
124
or her own children born out of wedlock. In this instance,
joint adoption is not necessary. However, the spouse
seeking to adopt must first obtain the consent of his or
her spouse.
In the absence of any decree of legal separation or
annulment, Jose and Rosario remained legally married
despite their de facto separation. For Jose to be eligible
to adopt Jed and Regina, Rosario must first signify her
consent to the adoption. Jose, however, did not validly
obtain Rosario's consent. His submission of a fraudulent
affidavit of consent in her name cannot be considered
compliance of the requisites of the law. Had Rosario been
given notice by the trial court of the proceedings, she
would have had a reasonable opportunity to contest the
validity of the affidavit. Since her consent was not
obtained, Jose was ineligible to adopt.
The law also requires the written consent of the adopter's
children if they are 10 years old or older. In Article III,
Section 9 of Republic Act No.
8552:chanRoblesvirtualLawlibrary
SEC. 9. Whose Consent is Necessary to the Adoption. —
After being properly counseled and informed of his/her
right to give or withhold his/her approval of the
adoption, the written consent of the following to the
adoption is hereby required:chanroblesvirtuallawlibrary
(c) The legitimate and adopted sons/daughters, ten (10)
years of age or over, of the adopter(s) and adoptee, if
any; (Emphasis supplied)
The consent of the adopter's other children is necessary
as it ensures harmony among the prospective siblings. It
also sufficiently puts the other children on notice that
they will have to share their parent's love and care, as
well as their future legitimes, with another person.
It is undisputed that Joanne was Jose and Rosario's
legitimate child and that she was over 10 years old at the
time of the adoption proceedings. Her written consent,
therefore, was necessary for the adoption to be valid.
To circumvent this requirement, however, Jose
manifested to the trial court that he and Rosario were
childless, thereby preventing Joanne from being notified
of the proceedings. As her written consent was never
obtained, the adoption was not valid.
For the adoption to be valid, petitioners' consent was
required by Republic Act No. 8552. Personal service of
summons should have been effected on the spouse and
all legitimate children to ensure that their substantive
rights are protected. It is not enough to rely on
constructive notice as in this case. Surreptitious use of
procedural technicalities cannot be privileged over
substantive statutory rights.
Since the trial court failed to personally serve notice on
Rosario and Joanne of the proceedings, it never validly
acquired jurisdiction.
There was extrinsic fraud
The appellate court, in denying the petition, ruled that
while fraud may have been committed in this case, it was
only intrinsic fraud, rather than extrinsic fraud. This is
erroneous.
In People v. Court of Appeals and Socorro
Florece:59chanrobleslaw
Extrinsic fraud refers to any fraudulent act of the
prevailing party in litigation committed outside of the
trial of the case, whereby the defeated party is prevented
from fully exhibiting his side of the case by fraud or
deception practiced on him by his opponent, such as by
keeping him away from court, by giving him a false
promise of a compromise, or where the defendant never
had the knowledge of the suit, being kept in ignorance
by the acts of the plaintiff, or where an attorney
fraudulently or without authority connives at his
defeat.60 (Emphasis supplied)
An action for annulment based on extrinsic fraud must be
brought within four years from discovery.61 Petitioners
alleged that they were made aware of the adoption only
in 2005. The filing of this petition on October 18, 2007 is
within the period allowed by the rules.
The badges of fraud are present in this case.
First, the petition for adoption was filed in a place that
had no relation to any of the parties. Jose was a resident
of Laoag City, llocos Norte.62 Larry and Lilibeth were
residents of Barangay 6, Laoag City.63 Jed and Regina
were born in San Nicolas, Ilocos Norte.64 Rosario and
Joanne were residents of Parañaque City, Manila.65 The
petition for adoption, however, was filed in the Regional
Trial Court of Batac, Ilocos Norte.66 The trial court gave
due course to the petition on Jose's bare allegation in his
petition that he was a resident of Batac,67 even though it
is admitted in the Home Study Report that he was a
practicing lawyer in Laoag City.68chanrobleslaw
Second, using the process of delayed registration,69 Jose
was able to secure birth certificates for Jed and Regina
showing him to be the father and Larry as merely the
informant.70 Worse still is that two different sets of
fraudulent certificates were procured: one showing that
Jose and Lilibeth were married on December 4, 1986 in
Manila,71 and another wherein the portion for the
mother's name was not filled in at all.72 The birth
125
certificates of Jed and Regina from the National Statistics
Office, however, show that their father was Larry R.
Rentegrado.73 These certificates are in clear contradiction
to the birth certificates submitted by Jose to the trial
court in support of his petition for adoption.
Third, Jose blatantly lied to the trial court when he
declared that his motivation for adoption was because he
and his wife, Rosario, were childless,74 to the prejudice of
their daughter, Joanne. The consent of Rosario to the
adoption was also disputed by Rosario and alleged to be
fraudulent.75chanrobleslaw
All these tactics were employed by Jose, not only to
induce the trial court in approving his petition, but also
to prevent Rosario and Joanne from participating in the
proceedings or opposing the petition.
The appellate court erroneously classified the fraud
employed by Jose as intrinsic on the basis that they were
"forged instruments or perjured testimonies"76 presented
during the trial. It failed to understand, however, that
fraud is considered intrinsic when the other party was
either present at the trial or was a participant in the
proceedings when such instrument or testimony was
presented in court, thus:chanRoblesvirtualLawlibrary
[I]ntrinsic fraud refers to the acts of a party at a trial that
prevented a fair and just determination of the case, but
the difference is that the acts or things, like falsification
and false testimony, could have been litigated and
determined at the trial or adjudication of the case. In
other words, intrinsic fraud does not deprive the
petitioner of his day in court because he can guard
against that kind of fraud through so many means,
including a thorough trial preparation, a skillful, cross-
examination, resorting to the modes of discovery, and
proper scientific or forensic applications. Indeed, forgery
of documents and evidence for use at the trial and
perjury in court testimony have been regarded as not
preventing the participation of any party in the
proceedings, and are not, therefore, constitutive of
extrinsic fraud.77 (Emphasis supplied)
When fraud is employed by a party precisely to prevent
the participation of any other interested party, as in this
case, then the fraud is extrinsic, regardless of whether the
fraud was committed through the use of forged
documents or perjured testimony during the trial.
Jose's actions prevented Rosario and Joanne from having
a reasonable opportunity to contest the adoption. Had
Rosario and Joanne been allowed to participate, the trial
court would have hesitated to grant Jose's petition since
he failed to fulfill the necessary requirements under the
law. There can be no other conclusion than that because
of Jose's acts, the trial court granted the decree of
adoption under fraudulent circumstances.
The law itself provides for penal sanctions for those who
violate its provisions. Under Article VII, Section 21 of
Republic Act No. 8552:chanRoblesvirtualLawlibrary
ARTICLE VII: VIOLATIONS AND PENALTIES
SEC.21. Violations and Penalties
(a) The penalty of imprisonment ranging from six (6)
years and one (1) day to twelve (12) years and/or a
fine not less than Fifty thousand pesos (P50,000.00),
but not more than Two hundred thousand pesos
(P200,000.00) at the discretion of the court shall be
imposed on any person who shall commit any of the
following acts:
(i) obtaining consent for an adoption through coercion,
undue influence, fraud, improper material inducement,
or other similar acts;
(ii) non-compliance with the procedures and safeguards
provided by the law for adoption; or
(iii)subjecting or exposing the child to be adopted to
danger, abuse, or exploitation.
(b) Any person who shall cause the fictitious registration
of the birth of a child under the name(s) of a person(s)
who is not his/her biological parent(s) shall be guilty
of simulation of birth, and shall be punished by prision
mayor in its medium period and a fine not exceeding
Fifty thousand pesos (P50.000.00). (Emphasis supplied)
Unfortunately, Jose's death carried with it the
extinguishment of any of his criminal liabilities.78 Republic
Act No. 8552 also fails to provide any provision on the
status of adoption decrees if the adoption is found to
have been obtained fraudulently. Petitioners also cannot
invoke Article VI, Section 19 of Republic Act No.
855279 since rescission of adoption can only be availed of
by the adoptee. Petitioners, therefore, are left with no
other remedy in law other than the annulment of the
judgment.The fraud employed in this case has been to
Joanne's prejudice. There is reason to believe that Joanne
has grown up having never experienced the love and
care of a father, her parents having separated a year after
her birth. She has never even benefited from any
monetary support from her father. Despite all these
adversities, Joanne was able to obtain a medical degree
from the University of the Philippines College of
Medicine80 and is now working as a doctor in
Canada.81 These accomplishments, however, are poor
substitutes if the injustice done upon her is allowed to
continue.
WHEREFORE, the petition is GRANTED. The decision
dated October 16, 2000 of the Regional Trial Court of
Batac, Ilocos Norte, Branch 17 in SP. Proc. No. 3445-17 is
rendered NULL and VOID.
126
 G.R. No. 192531 November 12, 2014
BERNARDINA P. BARTOLOME, Petitioner,
vs.
SOCIAL SECURITY SYSTEM and SCANMAR MARITIME
SERVICES, INC., Respondents.
DECISION
VELASCO, JR., J.:
Nature of the Case
This Appeal, filed under Rule 43 of the Rules of Court,
seeks to annul the March 17, 2010 Decision1 of the
Employees Compensation Commission (ECC) in ECC Case
No. SL-18483-0218-10, entitled Bernardina P. Bartolome
v. Social Security System (SSS) [Scanmar Maritime
Services, Inc.}, declaring that petitioner is not a
beneficiary of the deceased employee under Presidential
Decree No. (PD) 442, otherwise known as the Labor Code
of the Philippines, as amended by PD 626.2
The Facts
John Colcol (John), born on June 9, 1983, was employed
as electrician by Scanmar Maritime Services, Inc., on
board the vessel Maersk Danville, since February 2008. As
such, he was enrolled under the government's
Employees' Compensation Program (ECP).3 Unfortunately,
on June 2, 2008, an accident occurred on board the
vessel whereby steel plates fell on John, which led to his
untimely death the following day.4
John was, at the time of his death, childless and
unmarried. Thus, petitioner Bernardina P. Bartolome,
John’s biological mother and, allegedly, sole remaining
beneficiary, filed a claim for death benefits under PD 626
with the Social Security System (SSS) at San Fernando
City, La Union. However, the SSS La Union office, in a
letter dated June 10, 20095 addressed to petitioner,
denied the claim, stating:
We regret to inform you that wecannot give due course
to your claim because you are no longer considered as
the parent of JOHN COLCOL as he was legally adopted
by CORNELIO COLCOL based on documents you
submitted to us.
The denial was appealed tothe Employees’ Compensation
Commission (ECC), which affirmed the ruling of the SSS
La Union Branch through the assailed Decision, the
dispositive portion of which reads:
WHEREFORE, the appealed decision is AFFIRMED and the
claim is hereby dismissed for lack of merit.
SO ORDERED.6
In denying the claim, both the SSS La Union branch and
the ECC ruled against petitioner’s entitlement to the
death benefits sought after under PD 626 on the ground
she can no longer be considered John’s primary
beneficiary. As culled from the records, John and his
sister Elizabeth were adopted by their great grandfather,
petitioner’s grandfather, Cornelio Colcol (Cornelio), by
virtue of the Decision7 in Spec. Proc. No. 8220-XII of the
Regional Trial Court in Laoag City dated February 4, 1985,
which decree of adoption attained
finality.8 Consequently, as argued by the agencies, it is
Cornelio who qualifies as John’s primary beneficiary, not
petitioner. Neither, the ECC reasoned, would petitioner
qualify as John’s secondary beneficiary even if it
wereproven that Cornelio has already passed away. As
the ECC ratiocinated:
Under Article 167 (j) of P.D. 626, as amended, provides
(sic) that beneficiaries are the "dependent spouse until he
remarries and dependent children, who are the primary
beneficiaries. In their absence, the dependent parentsand
subject to the restrictions imposed on dependent
children, the illegitimate children and legitimate
descendants who are the secondary beneficiaries;
Provided; that the dependent acknowledged natural child
shall be considered as a primary beneficiary when there
are no other dependent children who are qualified and
eligible for monthly income benefit."
The dependent parent referred to by the above provision
relates to the legitimate parent of the covered member,
as provided for by Rule XV, Section 1 (c) (1) of the
Amended Rules on Employees’ Compensation. This
Commission believes that the appellant is not considered
a legitimate parent of the deceased, having given up the
latter for adoption to Mr. Cornelio C. Colcol. Thus, in
effect, the adoption divested her of the statusas the
legitimate parent of the deceased.
xxxx
In effect, the rights which previously belong [sic] to the
biological parent of the adopted child shall now be upon
the adopting parent. Hence, in this case, the legal parent
referred to by P.D. 626, as amended, as the beneficiary,
who has the right to file the claim, is the adoptive father
of the deceased and not herein appellant.9 (Emphasis
supplied)
127
Aggrieved, petitioner filed a Motion for Reconsideration,
which was likewise denied by the ECC.10 Hence, the
instant petition.
The Issues
Petitioner raises the following issues in the petition:
ASSIGNMENT OF ERRORS
I. The Honorable ECC’s Decision is contrary to
evidence on record.
II. The Honorable ECC committed grave abuse
in denying the just, due and lawful claims of the
petitioner as a lawful beneficiary of her
deceased biological son.
III. The Honorable ECC committed grave abuse
of discretion in not giving due course/denying
petitioner’s otherwise meritorious motion for
reconsideration.11
In resolving the case, the pivotal issue is this: Are the
biological parents of the covered, but legally adopted,
employee considered secondary beneficiaries and, thus,
entitled, in appropriate cases, to receive the benefits
under the ECP?
The Court's Ruling
The petition is meritorious.
The ECC’s factual findings are not consistent with the
evidence on record
To recall, one of the primary reasons why the ECC denied
petitioner’s claim for death benefits is that eventhough
she is John’s biological mother, it was allegedly not
proven that his adoptive parent, Cornelio, was no longer
alive. As intimated by the ECC:
Moreover, there had been no allegation in the records as
to whether the legally adoptive parent, Mr. Colcol, is
dead, which would immediately qualify the appellant
[petitioner] for Social Security benefits. Hence, absent
such proof of death of the adoptive father, this
Commission will presume him to be alive and well, and as
such, is the one entitled to claim the benefit being the
primary beneficiary of the deaceased. Thus, assuming
that appellant is indeed a qualified beneficiary under the
Social Security law, in view of her status as other
beneficiary, she cannot claim the benefit legally provided
by law to the primary beneficiary, in this case the
adoptive father since he is still alive.
We disagree with the factual finding of the ECC on this
point.
Generally, findings of fact by administrative agencies are
generally accorded great respect, if not finality, by the
courts by reason of the special knowledge and expertise
of said administrative agenciesover matters falling under
their jurisdiction.12 However, in the extant case, the ECC
had overlooked a crucial piece of evidence offered by the
petitioner – Cornelio’s death certificate.13
Based on Cornelio’s death certificate, it appears that
John’s adoptive father died on October 26, 1987,14 or
only less than three (3) years since the decree of
adoption on February 4, 1985, which attained
finality.15 As such, it was error for the ECC to have ruled
that it was not duly proven that the adoptive parent,
Cornelio, has already passed away.
The rule limiting death benefits claims to the legitimate
parents is contrary to law
This brings us to the question of whether or not
petitioner is entitled to the death benefits claim in view
of John’s work-related demise. The pertinent provision, in
this regard, is Article 167 (j) of the Labor Code, as
amended, which reads:
ART. 167. Definition of terms. - Asused in this Title unless
the context indicates otherwise:
xxxx
(j) 'Beneficiaries' means the dependent spouse until he
remarries and dependent children, who are the primary
beneficiaries. In their absence, the dependent parents
and subject to the restrictions imposed on dependent
children, the illegitimate children and legitimate
descendants who are the secondary beneficiaries;
Provided, that the dependent acknowledged natural child
shall be considered as a primary beneficiary when there
are no other dependent children who are qualified and
eligible for monthly income benefit. (Emphasis supplied)
Concurrently, pursuant to the succeeding Article 177(c)
supervising the ECC "[T]o approve rules and regulations
governing the processing of claims and the settlement of
disputes arising therefrom as prescribed by the System,"
the ECC has issued the Amended Rules on Employees’
Compensation, interpreting the above-cited provision as
follows:
128
RULE XV – BENEFICIARIES
SECTION 1. Definition. (a) Beneficiaries shall be either
primary or secondary, and determined atthe time of
employee’s death.
(b) The following beneficiaries shall be
considered primary:
(1) The legitimate spouse living with
the employee at the time of the
employee’s death until he remarries;
and
(2) Legitimate, legitimated, legally
adopted or acknowledged natural
children, who are unmarried not
gainfully employed, not over 21 years
of age, or over 21 years of age
provided that he is incapacitated and
incapable of self - support due to
physicalor mental defect which is
congenital or acquired during
minority; Provided, further, that a
dependent acknowledged natural
child shall be considered as a primary
beneficiary only when there are no
other dependent children who are
qualified and eligible for monthly
income benefit; provided finally, that
if there are two or more
acknowledged natural children, they
shall be counted from the youngest
and without substitution, but not
exceeding five.
(c) The following beneficiaries shall be
considered secondary:
(1) The legitimate parentswholly
dependent upon the employee for
regular support;
(2) The legitimate descendants and
illegitimate children who are
unmarried, not gainfully employed,
and not over 21 years of age, or over
21 years of age providedthat he is
incapacitated and incapable of self -
support dueto physical or mental
defect which is congenital or acquired
during minority. (Emphasis supplied)
Guilty of reiteration, the ECC denied petitioner’s claim on
the ground that she is no longer the deceased’s
legitimate parent, as required by the implementing rules.
As held by the ECC, the adoption decree severed the
relation between John and petitioner, effectively
divesting her of the status of a legitimate parent, and,
consequently, that of being a secondary beneficiary.
We disagree.
a. Rule XV, Sec. 1(c)(1) of the Amended Rules on
Employees’ Compensation deviates from the clear
language of Art. 167 (j) of the Labor Code, as amended
Examining the Amended Rules on Employees’
Compensation in light of the Labor Code, as amended, it
is at once apparent that the ECC indulged in an
unauthorized administrative legislation. In net effect, the
ECC read into Art. 167 of the Code an interpretation not
contemplated by the provision. Pertinent in elucidating
on this point isArticle 7 of the Civil Code of the
Philippines, which reads:
Article 7. Laws are repealed only by subsequent ones, and
their violation or non-observance shall not beexcused by
disuse, or custom or practice to the contrary.
When the courts declared a law to be inconsistent with
the Constitution, the former shall be void and the latter
shall govern.
Administrative or executive acts, orders and regulations
shall be valid only when they are not contrary to the laws
or the Constitution.(Emphasis supplied)
As applied, this Court held in Commissioner of Internal
Revenue v. Fortune Tobacco Corporation16 that:
As we have previously declared, rule-making power must
be confined to details for regulating the mode or
proceedings in order to carry into effect the law as it has
been enacted, and it cannot be extended to amend or
expand the statutory requirements or to embrace matters
not covered by the statute. Administrative regulations
must always be in harmony with the provisions of the law
because any resulting discrepancy between the two will
always be resolved in favor of the basic law. (Emphasis
supplied)
Guided by this doctrine, We find that Rule XV of the
Amended Rules on Employees’ Compensation is patently
a wayward restriction of and a substantial deviation from
Article 167 (j) of the Labor Code when it interpreted the
phrase "dependent parents" to refer to "legitimate
parents."
129
It bears stressing that a similar issue in statutory
construction was resolved by this Court in Diaz v.
Intermediate Appellate Court17 in this wise:
It is Our shared view that the word "relatives" should be
construed in its general acceptation. Amicus curiae Prof.
Ruben Balane has this to say:
The term relatives, although used many times in the
Code, is not defined by it. In accordancetherefore with
the canons of statutory interpretation, it should
beunderstood to have a general and inclusive scope,
inasmuch as the term is a general one. Generalia verba
sunt generaliter intelligenda. That the law does not make
a distinction prevents us from making one: Ubi lex non
distinguit, nec nos distinguera debemus. xxx
According to Prof. Balane, to interpret the term relatives
in Article 992 in a more restrictive sense thanit is used
and intended is not warranted by any rule
ofinterpretation. Besides, he further states that when the
law intends to use the termin a more restrictive sense, it
qualifies the term with the word collateral, as in Articles
1003 and 1009 of the New Civil Code.
Thus, the word "relatives" is a general term and when
used in a statute it embraces not only collateral relatives
but also all the kindred of the person spoken of, unless
the context indicates that it was used in a more restrictive
or limited sense — which as already discussed earlier, is
not so in the case at bar. (Emphasis supplied)
In the same vein, the term "parents" in the phrase
"dependent parents" in the afore-quoted Article 167 (j) of
the Labor Code is usedand ought to be taken in its
general sense and cannot be unduly limited to
"legitimate parents" as what the ECC did. The phrase
"dependent parents" should, therefore, include all
parents, whether legitimate or illegitimate and whether
by nature or by adoption. When the law does not
distinguish, one should not distinguish. Plainly,
"dependent parents" are parents, whether legitimate or
illegitimate, biological or by adoption,who are in need of
support or assistance.
Moreover, the same Article 167 (j),as couched, clearly
shows that Congress did not intend to limit the phrase
"dependent parents" to solely legitimate parents. At the
risk of being repetitive, Article 167 provides that "in their
absence, the dependent parents and subject to the
restrictions imposed on dependent children, the
illegitimate children and legitimate descendants who are
secondary beneficiaries." Had the lawmakers
contemplated "dependent parents" to mean legitimate
parents, then it would have simply said descendants and
not "legitimate descendants." The manner by which the
provision in question was crafted undeniably show that
the phrase "dependent parents" was intended to cover all
parents – legitimate, illegitimate or parents by nature or
adoption.
b. Rule XV, Section 1(c)(1) of the Amended Rules on
Employees’ Compensation is in contravention of the
equal protection clause
To insist that the ECC validly interpreted the Labor Code
provision is an affront to the Constitutional guarantee of
equal protection under the laws for the rule, as worded,
prevents the parents of an illegitimate child from
claiming benefits under Art. 167 (j) of the Labor Code, as
amended by PD 626. To Our mind, such postulation
cannot be countenanced.
As jurisprudence elucidates, equal protection simply
requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and
responsibilities imposed. It requires public bodies and
institutions to treat similarly situated individuals in a
similar manner.18 In other words, the concept of equal
justice under the law requires the state to govern
impartially, and it may not drawdistinctions between
individuals solely on differences that are irrelevant to a
legitimate governmental objective.19
The concept of equal protection, however, does not
require the universal application of the laws to all persons
or things without distinction. What it simply requires
isequality among equals as determined according to a
valid classification. Indeed, the equal protection clause
permits classification. Such classification, however, to be
valid must pass the test of reasonableness. The test has
four requisites: (1) The classification rests on substantial
distinctions; (2) It is germane tothe purpose of the law;
(3) It is not limited to existing conditions only; and (4) It
applies equally to all members of the same class.
"Superficial differences do not make for a valid
classification."20
In the instant case, there is no compelling reasonable
basis to discriminate against illegitimate parents. Simply
put, the above-cited rule promulgated by the ECC that
limits the claim of benefits to the legitimate parents
miserably failed the test of reasonableness since the
classification is not germane to the law being
implemented. We see no pressing government concern
or interest that requires protection so as to warrant
balancing the rights of unmarried parents on one hand
and the rationale behind the law on the other. On the
contrary, the SSS can better fulfill its mandate, and the
policy of PD 626 – that employees and their dependents
may promptly secure adequate benefits in the event of
130
work-connected disability or death - will be better served
if Article 167 (j) of the Labor Code is not so narrowly
interpreted.
There being no justification for limiting secondary parent
beneficiaries to the legitimate ones, there can be no
other course of action to take other than to strikedown
as unconstitutional the phrase "illegitimate" as appearing
in Rule XV, Section 1(c)(1) of the Amended Rules on
Employees’ Compensation.
Petitioner qualifies as John’s dependent parent
In attempting to cure the glaring constitutional violation
of the adverted rule, the ECC extended illegitimate
parents an opportunity to file claims for and receive
death benefitsby equating dependency and legitimacy to
the exercise of parental authority. Thus, as insinuated by
the ECC in its assailed Decision, had petitioner not given
up John for adoption, she could have still claimed death
benefits under the law.
To begin with, nowhere in the law nor in the rules does it
say that "legitimate parents" pertain to those who
exercise parental authority over the employee enrolled
under the ECP. Itwas only in the assailed Decision
wherein such qualification was made. In addition,
assuming arguendothat the ECC did not overstep its
boundaries in limiting the adverted Labor Code provision
to the deceased’s legitimate parents, and that the
commission properly equated legitimacy to parental
authority, petitioner can still qualify as John’s secondary
beneficiary.
True, when Cornelio, in 1985, adoptedJohn, then about
two (2) years old, petitioner’s parental authority over
John was severed. However, lest it be overlooked, one
key detail the ECC missed, aside from Cornelio’s death,
was that when the adoptive parent died less than three
(3) years after the adoption decree, John was still a minor,
at about four (4) years of age.
John’s minority at the time of his adopter’s death is a
significant factor in the case at bar. Under such
circumstance, parental authority should be deemed to
have reverted in favor of the biological parents.
Otherwise, taking into account Our consistent ruling that
adoption is a personal relationship and that there are no
collateral relatives by virtue of adoption,21 who was then
left to care for the minor adopted child if the adopter
passed away?
To be sure, reversion of parental authority and legal
custody in favor of the biological parents is not a novel
concept. Section 20 of Republic Act No. 855222 (RA 8552),
otherwise known as the Domestic Adoption Act,
provides:
Section 20. Effects of Rescission.– If the petition [for
rescission of adoption] is granted, the parental authority
of the adoptee's biological parent(s), if known, or the
legal custody of the Department shall be restored if the
adoptee is still a minoror incapacitated. The reciprocal
rights and obligations of the adopter(s) and the adoptee
to each other shall be extinguished. (emphasis added)
The provision adverted to is applicable herein by analogy
insofar as the restoration of custody is
concerned.1âwphi1 The manner herein of terminating the
adopter’s parental authority, unlike the grounds for
rescission,23 justifies the retention of vested rights and
obligations between the adopter and the adoptee, while
the consequent restoration of parental authority in favor
of the biological parents, simultaneously, ensures that the
adoptee, who is still a minor, is not left to fend for
himself at such a tender age.
To emphasize, We can only apply the rule by analogy,
especially since RA 8552 was enacted after Cornelio’s
death. Truth be told, there is a lacuna in the law as to
which provision shall govern contingencies in all fours
with the factual milieu of the instant petition.
Nevertheless, We are guided by the catena of cases and
the state policies behind RA 855224 wherein the
paramount consideration is the best interest of the child,
which We invoke to justify this disposition. It is, after all,
for the best interest of the child that someone will remain
charged for his welfare and upbringing should his or her
adopter fail or is rendered incapacitated to perform his
duties as a parent at a time the adoptee isstill in his
formative years, and, to Our mind, in the absence or, as in
this case, death of the adopter, no one else could
reasonably be expected to perform the role of a parent
other than the adoptee’s biological one.
Moreover, this ruling finds support on the fact that even
though parental authority is severed by virtue of
adoption, the ties between the adoptee and the
biological parents are not entirely eliminated. To
demonstrate, the biological parents, insome instances,
are able to inherit from the adopted, as can be gleaned
from Art. 190 of the Family Code:
Art. 190. Legal or intestate succession to the estate of the
adopted shall be governed by the following rules:
xxx
(2) When the parents, legitimate or illegitimate, or the
legitimate ascendants of the adopted concur withthe
131
adopter, they shall divide the entire estate, one-half tobe
inherited by the parents or ascendants and the other half,
by the adopters;
xxx
(6) When only collateral blood relatives of the adopted
survive, then the ordinary rules of legal or intestate
succession shall apply.
Similarly, at the time of Cornelio Colcol’s death, which
was prior to the effectivity of the Family Code, the
governing provision is Art. 984 of the New Civil Code,
which provides:
Art. 984. In case of the death of an adopted child, leaving
no children or descendants, his parents and relatives by
consanguinity and not by adoption, shall be his legal
heirs.
From the foregoing, it is apparent that the biological
parents retain their rights of succession tothe estate of
their child who was the subject of adoption. While the
benefits arising from the death of an SSS covered
employee do not form part of the estateof the adopted
child, the pertinent provision on legal or intestate
succession at least reveals the policy on the rights of the
biological parents and those by adoption vis-à-vis the
right to receive benefits from the adopted. In the same
way that certain rights still attach by virtue of the blood
relation, so too should certain obligations, which, We
rule, include the exercise of parental authority, in the
event of the untimely passing of their minor offspring’s
adoptive parent. We cannot leave undetermined the fate
of a minor child whose second chance ata better life
under the care of the adoptive parents was snatched
from him by death’s cruel grasp. Otherwise, the adopted
child’s quality of life might have been better off not
being adopted at all if he would only find himself
orphaned in the end. Thus, We hold that Cornelio’s death
at the time of John’sminority resulted in the restoration
of petitioner’s parental authority over the adopted child.
On top of this restoration of parental authority, the fact
of petitioner’s dependence on John can be established
from the documentary evidence submitted to the ECC. As
it appears in the records, petitioner, prior to John’s
adoption, was a housekeeper. Her late husband died in
1984, leaving her to care for their seven (7) children. But
since she was unable to "give a bright future to her
growing children" as a housekeeper, she consented to
Cornelio’s adoption of Johnand Elizabeth in 1985.
Following Cornelio’s death in 1987, so records reveal,
both petitioner and John repeatedly reported "Brgy.
Capurictan, Solsona, Ilocos Norte" as their residence. In
fact, this veryaddress was used in John’s Death
Certificate25 executed in Brazil, and in the Report of
Personal Injury or Loss of Life accomplished by the
master of the vessel boarded by John.26 Likewise, this is
John’s known address as per the ECC’s assailed
Decision.27 Similarly, this same address was used by
petitioner in filing her claim before the SSS La Union
branch and, thereafter, in her appeal with the ECC. Hence,
it can be assumed that aside from having been restored
parental authority over John, petitioner indeed actually
execised the same, and that they lived together under
one roof.
Moreover, John, in his SSS application,28 named
petitioner as one of his beneficiaries for his benefits
under RA 8282, otherwise known as the "Social Security
Law." While RA 8282 does not cover compensation for
work-related deaths or injury and expressly allows the
designation of beneficiaries who are not related by blood
to the member unlike in PD 626, John’s deliberate act of
indicating petitioner as his beneficiary at least evinces
that he, in a way, considered petitioner as his dependent.
Consequently, the confluence of circumstances – from
Cornelio’s death during John’s minority, the restoration
ofpetitioner’s parental authority, the documents showing
singularity of address, and John’s clear intention to
designate petitioner as a beneficiary - effectively made
petitioner, to Our mind, entitled to death benefit claims
as a secondary beneficiary under PD 626 as a dependent
parent.
All told, the Decision of the ECC dated March 17, 2010 is
bereft of legal basis. Cornelio’s adoption of John, without
more, does not deprive petitioner of the right to receive
the benefits stemming from John’s death as a dependent
parent given Cornelio’s untimely demise during John’s
minority. Since the parent by adoption already died, then
the death benefits under the Employees' Compensation
Program shall accrue solely to herein petitioner, John's
sole remaining beneficiary.
WHEREFORE, the petition is hereby GRANTED. The March
17, 2010 Decision of the Employees' Compensation
Commission, in ECC Case No. SL-18483-0218-10, is
REVERSED and SET ASIDE. The ECC is hereby directed to
release the benefits due to a secondary beneficiary of the
deceased covered employee John Colcol to petitioner
Bernardina P. Bartolome.
No costs.
SO ORDERED.
132
 G.R. No. 127578 February 15, 1999
MANUEL DE ASIS, petitioner,
vs.
COURT OF APPEALS, HON. JAIME T. HAMOY, Branch 130,
RTC, Kalookan City and GLEN CAMIL ANDRES DE ASIS
represented by her mother/guardian VIRCEL D.
ANDRES, respondents.
PURISIMA, J.:
Petition for certiorari under Rule 65 oft he Revised Rules
of Court seeking to nullify the decision of the Court of
Appeals which affirmed the trial court's Orders, dated
November 25, 1993 and February 4, 1994, respectively,
denying petitioner's Motion to Dismiss the Complaint in
Civil Case No. C-16107, entitled "Glen Camil Andres de
Asis, etc. vs. Manuel de Asis", and the motion for
reconsideration.
The pertinent facts leading to the filing of the petition at
bar are as follows:
On October 14, 1988, Vircel D. Andres, (the herein private
respondent) in her capacity as the legal guardian of the
minor, Glen Camil Andres de Asis, brought an action for
maintenance and support against Manuel de Asis,
docketed as Civil Case No. Q-88-935 before the Regional
Trial Court of Quezon City, Branch 94, alleging that the
defendant Manuel de Asis (the petitioner here) is the
father of subject minor Glen Camil Andres de Asis, and
the former refused and/or failed to provide for the
maintenance of the latter, despite repeated demands.
In his Answer, petitioner denied his paternity of the said
minor and theorized that he cannot therefore be required
to provide support for him.
On July 4, 1989, private respondent Vircel D. Andres,
through counsel, sent in a manifestation the pertinent
portion of which, reads;
1. That this proposed Amended
Answer, defendant (herein petitioner)
has made a judicial
admission/declaration that "1).
defendant denies that the said minor
child (Glen Camil) is his child 2) he
(petitioner) has no obligation to the
plaintiff Glen Camil . . .
2. That with the aforesaid judicial
admission/declarations by the
defendant, it seems futile and a
useless exercise to claim support from
said defendant.
3. That under the foregoing
circumstances it would be more
practical that plaintiff withdraws the
complains against the defendant
subject to the condition that the
defendant should not pursue his
counterclaim in the above-entitled
case, . . . 1
By virtue of the said manifestation, both the plaintiff and
the defendant agreed to move for the dismissal of the
case. Acting thereupon, the Regional Trial Court a
quo issued the following Order of August 8, 1989,
dismissing Civil Case No. Q-88-935 with prejudice, to wit:
Acting on the manifestation of Atty.
Romualdo C. delos Santos, counsel for
the defendant, that counsel for the
plaintiff Atty. Ismael J. Andres has no
objection that this case be withdrawn
provided that the defendant will
withdraw the counterclaim, as prayed
for, let the case be dismissed with
prejudice.
SO ORDERED.2
On September 7, 1995, another Complaint for
maintenance and support was brought against Manuel A.
de Asis, this time in the name of Glen Camil Andres de
Asis, represented by her legal guardian/mother, Vircel D.
Andres. Docketed as Civil Case No. C-16107 before
Branch 130 of the Regional Trial Court of Kalookan, the
said Complaint prayed, thus:
WHEREFORE, premises considered, it
is respectfully prayed that judgment
be rendered ordering defendant:
1. To pay plaintiff the sum of not less
than P2,000.00 per month for every
month since June 1, 1987 as support
in arrears which defendant failed to
provide plaintiff shortly after her birth
in June 1987 up to present;
2. To give plaintiff a monthly
allowance of P5,000.00 to be paid in
advance on or before the 5th of each
and every month.
133
 3. To give plaintiff by way of
support pendente lite a monthly
allowance of P5,000.00 per month, the
first monthly allowance to start
retroactively from the first day of this
month and the subsequent ones to be
paid in advance on or before the 5th
of each succeeding month.
4. To pay the costs of suit.
Plaintiff prays for such other relief just
and equitable under the premises. 3
On October 8, 1993, petitioner moved to dismiss the
Complaint on the ground of res judicata, alleging that
Civil Case C-16107 is barred by the prior judgment which
dismissed with prejudice Civil Case Q -88-935.
In the Order dated November 25, 1993 denying subject
motion to dismiss, the trial court ruled that res judicata is
inapplicable in an action for support for the reason that
renunciation or waiver of future support is prohibited by
law. Petitioner's motion for reconsideration of the said
Order met the same fate. It was likewise denied.
Petitioner filed with the Court of Appeals a Petition
for Certiorari. But on June 7, 1996, the Court of Appeals
found that the said Petition devoid of merit and
dismissed the same.
Undaunted, petitioner found his way to this court via the
present petition, posing the question whether or not the
public respondent acted with grave abuse of discretion
amounting to lack or excess of jurisdiction in upholding
the denial of the motion to dismiss by the trial court, and
holding that an action for support cannot be barred
by res judicata.
To buttress his submission, petitioner invokes the
previous dismissal of the Complaint for maintenance and
support, Civil Case Q-88-935, filed by the mother and
guardian of the minor, Glen Camil Andres de Asis, (the
herein private respondent). In said case, the complainant
manifested that because of the defendant's judicial
declaration denying that he is the father of subject minor
child, it was "futile and a useless exercise to claim support
from defendant". Because of such manifestation, and
defendant's assurance that he would not pursue his
counterclaim anymore, the parties mutually agreed to
move for the dismissal of the complaint. The motion was
granted by the Quezon City Regional Trial Court, which
then dismissed the case with prejudice.
Petitioner contends that the aforecited manifestation, in
effect admitted the lack of filiation between him and the
minor child, which admission binds the complainant, and
since the obligation to give support is based on the
existence of paternity and filiation between the child and
the putative parent, the lack thereof negates the right to
claim for support. Thus, petitioner maintains that the
dismissal of the Complaint by the lower court on the
basis of the said manifestation bars the present action for
support, especially so because the order of the trial court
explicitly stated that the dismissal of the case was with
prejudice.
The petition is not impressed with merit.
The right to receive support can neither be renounced
nor transmitted to a third person. Article 301 of the Civil
Code, the law in point, reads:
Art. 301. The right to receive support
cannot be renounced, nor can it be
transmitted to a third person. Neither
can it be compensated with what the
recipient owes the obligor. . . .
Furthermore, future support cannot be the subject of a
compromise.
Art. 2035, ibid, provides, that:
No compromise upon the following
questions shall be valid:
(1) The civil status of persons;
(2) The validity of a marriage or legal
separation;
(3) Any ground for legal separation
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime.
The raison d' etre behind the proscription against
renunciation, transmission and/or compromise of the
right to support is stated, thus:
The right to support being founded
upon the need of the recipient to
maintain his existence, he is not
134
 entitled to renounce or transfer the
right for this would mean sanctioning
the voluntary giving up of life itself.
The right to life cannot be renounce;
hence, support which is the means to
attain the former, cannot be
renounced.
xxx xxx xxx
To allow renunciation or transmission
or compensation of the family right of
a person to support is virtually to
allow either suicide or the conversion
of the recipient to a public burden.
This is contrary to public policy. 4
In the case at bar, respondent minor's mother, who was
the plaintiff in the first case, manifested that she was
withdrawing the case as it seemed futile to claim support
from petitioner who denied his paternity over the child.
Since the right to claim for support is predicated on the
existence of filiation between the minor child and the
putative parent, petitioner would like us to believe that
such manifestation admitting the futility of claiming
support from him puts the issue to rest and bars any and
all future complaint for support.
The manifestation sent in by respondent's mother in the
first case, which acknowledged that it would be useless
to pursue its complaint for support, amounted to
renunciation as it severed the vinculum that gives the
minor, Glen Camil, the right to claim support from his
putative parent, the petitioner. Furthermore, the
agreement entered into between the petitioner and
respondent's mother for the dismissal of the complaint
for maintenance and support conditioned upon the
dismissal of the counterclaim is in the nature of a
compromise which cannot be countenanced. It violates
the prohibition against any compromise of the right to
support.
Thus, the admission made by counsel
for the wife of the facts alleged in a
motion of the husband, in which the
latter prayed that his obligation to
support be extinguished cannot be
considered as an assent to the prayer,
and much less, as a waiver of the right
to claim for support. 5
It is true that in order to claim support, filiation and/or
paternity must first be shown between the claimant and
the parent. However, paternity and filiation or the lack of
the same is a relationship that must be judicially
established and it is for the court to declare its existence
or absence. It cannot be left to the will or agreement of
the parties.
The civil status of a son having been
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. 6
Although in the case under scrutiny, the admission may
be binding upon the respondent, such an admission is at
most evidentiary and does not conclusively establish the
lack of filiation.
Neither are we persuaded by petitioner's theory that the
dismissal with prejudice of Civil Case Q-88-935 has the
effect of res judicata on the subsequent case for support.
The case of Advincula vs. Advincula 7 comes to the fore.
In Advincula, the minor, Manuela Advincula, instituted a
case for acknowledgment and support against her
putative father, Manuel Advincula. On motion of both
parties and for the reason that the "plaintiff has lost
interest and is no longer interested in continuing the case
against the defendant and has no further evidence to
introduce in support of the complaint", the case was
dismissed. Thereafter, a similar case was instituted by
Manuela, which the defendant moved to dismiss,
theorizing that the dismissal of the first case precluded
the filing of the second case.
In disposing such case, this Court ruled, thus:
The new Civil Code provides that the
allowance for support is provisional
because the amount may be
increased or decreased depending
upon the means of the giver and the
needs of the recipient (Art. 297); and
that the right to receive support
cannot be renounced nor can it be
transmitted to a third person neither
can it be compensated with what the
recipient owes the obligator (Art .301).
Furthermore, the right to support can
not be waived or transferred to third
parties and future support cannot be
the subject of compromise (Art. 2035;
Coral v. Gallego, 38 O.G. 3135, cited in
IV Civil Code by Padilla, p. 648; 1956
Ed.). This being true, it is indisputable
that the present action for support
can be brought, notwithstanding the
135
 fact the previous case filed against the
same defendant was dismissed. And it
also appearing that the dismissal of
Civil Case No. 3553, was not an
adjudication upon the merits, as
heretofore shown, the right of herein
plaintiff-appellant to reiterate her suit
for support and acknowledgment is
available, as her needs arise. Once the
needs of plaintiff arise, she has the
right to bring an action for support,
for it is only then that her cause for
action is accrues.. . .
xxx xxx xxx
It appears that the former dismissal
was predicated upon compromise.
Acknowledgment, affecting as it does
the civil status of a persons and future
support, cannot be the subject of
compromise (pars. 1 & 4, Art. 2035,
Civil Code). Hence, the first dismissal
cannot have force and effect and can
not bar the filing of another action,
asking for the same relief against the
same defendant. (emphasis supplied).
Conformably, notwithstanding the dismissal of Civil Case
Q-88-935 and the lower court's pronouncement that
such dismissal was with prejudice, the second action for
support may still prosper.
WHEREFORE, the petition under consideration is hereby
DISMISSED and the decision of the Court of Appeals
AFFIRMED. No pronouncement as to costs.
SO ORDERED.
G.R. No. 145527 May 28, 2002
AUGUSTUS CAEZAR R. GAN, petitioner,
vs.
HON. ANTONIO C. REYES, in his capacity as Presiding
Judge of RTC-Br. 61, Baguio City, ALBERT G. TOLENTINO,
in his capacity as RTC Sheriff of Baguio City, and
FRANCHESKA JOY C. PONDEVIDA, assisted by
BERNADETTE C. PONDEVIDA, respondents.
BELLOSILLO, J.:
Quite apprehensive that she would not be able to send
to school her three (3)-year old daughter Francheska Joy
S. Pondevida, Bernadette S. Pondevida wrote petitioner
Augustus Caezar R. Gan1 demanding support for their
"love child." Petitioner, in his reply, denied paternity of
the child. An exasperated Bernadette thereafter instituted
in behalf of her daughter a complaint against petitioner
for support with prayer for support pendente lite.2
Petitioner moved to dismiss on the ground that the
complaint failed to state a cause of action. He argued
that since Francheska's certificate of birth indicated her
father as "UNKNOWN," there was no legal or factual
basis for the claim of support.3 His motion, however, was
denied by the trial court.4
Despite denial of his motion, petitioner failed to file his
answer within the reglementary period. Thus, on 19
January 2000 private respondent moved that petitioner
be declared in default, which motion was granted. In
its Order declaring petitioner in default the trial court
noted that petitioner's Motion to Admit Answer was filed
more than ninety (90) days after the expiration of the
reglementary period, and only after private respondent
moved that petitioner be declared in default. Petitioner's
motion for reconsideration was also denied. Hence, the
court received the evidence of private respondent ex
parte.
After finding that the claim of filiation and support was
adequately proved, the trial court rendered
its Decision on 12 May 2000 ordering petitioner to
recognize private respondent Francheska Joy S.
Pondevida as his illegitimate child and support her
with P20,000.00 every month to be paid on or before the
15th of each month starting 15 April 2000. Likewise
petitioner was ordered to pay Francheska Joy S.
Pondevida the accumulated arrears of P20,000.00 per
month from the day she was born, P50,000.00 as
attorney's fees and P25,000.00 for expenses of litigation,
plus P20,000.00 on or before the 15th of every month
from 15 May 2000 as alimony pendente lite should he
desire to pursue further remedies against private
respondent.5
Forthwith, private respondent moved for execution of the
judgment of support, which the trial court granted by
issuing a writ of execution, citing as reason therefor
private respondent's immediate need for
schooling.6 Pursuant to the writ, the sheriff levied upon a
motor vehicle, a Honda City, with Plate No. UMT 884,
registered in the name of "A.B. Leasing & Fin. Corp.,
Leased to: G & G Trading," and found within the premises
of petitioner's warehouse in Caloocan City.7
Meanwhile, petitioner appealed the Judgment to the
Court of Appeals.8
136
On 9 June 2000 petitioner filed a petition for certiorari the issue of paternity, which test he claims has a
and prohibition with the Court of Appeals imputing grave reputation for accuracy.12
abuse of discretion to the trial court for ordering the
immediate execution of the judgment. Petitioner averred A careful review of the facts and circumstances of this
that the writ of execution was issued despite the absence case fails to persuade this Court to brand the issuance of
of a good reason for immediate enforcement. Petitioner the writ of execution by the trial court and affirmed by
insisted that as the judgment sought to be executed did the Court of Appeals with the vice of grave abuse of
not yet attain finality there should be an exceptional discretion. There is no evidence indeed to justify the
reason to warrant its execution. He further alleged that setting aside of the writ on the ground that it was issued
the writ proceeded from an order of default and a beyond the legitimate bounds of judicial discretion.
judgment rendered by the trial court in complete
disregard of his "highly meritorious defense." Finally,
Section 4, Rule 39, of the Rules of Court clearly states
petitioner impugned the validity of the writ as he argued
that, unless ordered by the trial court, judgments in
that it was issued without notice to him. Petitioner
actions for support are immediately executory and
stressed the fact that he received copy of the motion for
cannot be stayed by an appeal. This is an exception to
immediate execution two (2) weeks after its scheduled
the general rule which provides that the taking of an
hearing.9
appeal stays the execution of the judgment and that
advance executions will only be allowed if there are
On 31 August 2000 the Court of Appeals dismissed the urgent reasons therefor. The aforesaid provision
petition on the ratiocination that under Sec. 4, Rule 39 of peremptorily calls for immediate execution of all
the 1997 Rules of Civil Procedure judgments for support judgments for support and makes no distinction between
are immediately executory and cannot be stayed by an those which are the subject of an appeal and those which
appeal. Thus, it did not help petitioner any to argue that are not. To consider then petitioner's argument that
there were no good reasons to support its immediate there should be good reasons for the advance execution
execution. The second challenge hurled against the of a judgment would violate the clear and explicit
validity of the writ concerning the lack of notice and language of the rule mandating immediate execution.
hearing was likewise dismissed with the appeals court
favoring substantial justice over technicalities. Lastly,
Petitioner is reminded that to the plain words of a legal
petitioner's justification for belatedly filing his
provision we should make no further
answer, i.e., miscommunication with his lawyer, was
explanation. Absoluta sententia expositore non indiget.
disregarded since it fell short of the statutory
Indeed, the interpretation which petitioner attempts to
requirements of "fraud, accident, mistake or excusable
foist upon us would only lead to absurdity, its acceptance
negligence."10
negating the plain meaning of the provision subject of
the petition.
His motion for reconsideration having been denied,
petitioner came to us impugning the dismissal of his
Petitioner would also have us annul the writ of execution
petition for certiorari. Petitioner argues that under the
on the ground that he was not notified of its issuance.
rules a judgment for support which is subject of an
We are unable to accept such a plea for enough has been
appeal cannot be executed absent any good reason for
done by petitioner to delay the execution of the writ. As
its immediate execution. Petitioner likewise attacks the
the records show, in partial fulfillment of the writ of
validity of the writ asserting that it was issued in violation
execution petitioner surrendered a sedan which
of his right to notice and hearing. Petitioner also seeks
apparently was not his as it was later ordered released to
the setting aside of the default order and the judgment
a third party who laid claim over the levied vehicle.13 Also,
rendered thereafter for the reason that should he be
petitioner filed before the Court of Appeals a Motion for
allowed to prove his defense of adultery, the claim of
Leave to Deposit in Court Support Pendente
support would be most likely denied.11 Petitioner claims
Lite promising to deposit the amount due as support
that in an action by a child against his putative father,
every 15th of the month, but to date has not deposited
adultery of the child's mother would be a valid defense
any amount in complete disavowal of his
to show that the child is a fruit of adulterous relations for,
undertaking.14 He was not even deterred from appealing
in such case, it would not be the child of the defendant
before us and needlessly taking up our time and energy
and therefore not entitled to support. Parenthetically,
by posing legal questions that can be characterized, at
how could he be allowed to prove the defense of
best, as flimsy and trivial. We are thus not prepared to
adultery when it was not even hinted that he was married
abrogate the writ of execution issued in favor of private
to the mother of Francheska Joy. Petitioner consents to
respondent for substantial justice would be better served
submit to Dioxyribonucleic Acid (DNA) Testing to resolve
if petitioner be precluded from interposing another

137
barrier to the immediate execution of the support
judgment.
We are not intimating that in every case the right to
notice of hearing can be disregarded. That is not so. It
appears in this case that there has been too much
temporizing in the execution of the writ which must not
be allowed to thwart the constitutional mandate for
speedy disposition of cases. As has been said, a
technicality should be an aid to justice and not its great
hindrance and chief enemy.15 Truly, if the writ of
execution would be voided on this ground alone, then
procedural rules which were primarily drafted to protect
parties in the realm of constitutional guarantees would
acquire a new sanctity at the expense of equity and
justice.
Lastly, we note that no useful purpose would be served if
we dwell on petitioner's arguments concerning the
validity of the judgment by default and his insistence that
he be subjected, together with private respondent
Bernadette C. Pondevida to DNA testing to settle the
issue of paternity. The futility of his arguments is very
apparent. It is not for us at this instance to review or
revise the Decision rendered by the trial court for to do
so would pre-empt the decision which may be rendered
by the Court of Appeals in the main case for support.
In all cases involving a child, his interest and welfare are
always the paramount concerns. There may be instances
where, in view of the poverty of the child, it would be a
travesty of justice to refuse him support until the decision
of the trial court attains finality while time continues to
slip away. An excerpt from the early case of De Leon v.
Soriano16 is relevant, thus:
The money and property adjudged for support
and education should and must be given
presently and without delay because if it had to
wait the final judgment, the children may in the
meantime have suffered because of lack of
food or have missed and lost years in school
because of lack of funds. One cannot delay the
payment of such funds for support and
education for the reason that if paid long
afterwards, however much the accumulated
amount, its payment cannot cure the evil and
repair the damage caused. The children with
such belated payment for support and
education cannot act as gluttons and eat
voraciously and unwisely, afterwards, to make
up for the years of hunger and starvation.
Neither may they enrol in several classes and
schools and take up numerous subjects all at
once to make up for the years they missed in
school, due to non-payment of the funds when
needed.
WHEREFORE, finding no reversible error in
the Decision sought to be reviewed, the instant petition
is DENIED. The 31 August 2000 Decision of the Court of
Appeals dismissing the Petition for Certiorari instituted
by petitioner Augustus Caezar C. Gan and upholding the
validity of the 2 June 2000 Writ of Execution issued by
the Regional Trial Court – Br. 61, Baguio City, in Civil Case
No. 4234-R, is AFFIRMED. Costs against petitioner.
SO ORDERED.
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.3 In 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
138
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
139
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.
140
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 –
141
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
testimony as to the amount of his income. We have,
37
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."
142
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
143
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 relationships among the parties had certainly been
affected. Particularly difficult for Rica and Rina must be
the fact that those who they had considered and claimed
as family denied having any familial relationship with
them. Given all these, we could not see Rica and Rina
moving back here in the Philippines in the company of
those who have disowned them.
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 with
the trial of the main case and the immediate resolution of
the same with deliberate dispatch. The RTC Judge, Branch
149, Makati, is further directed to submit a report of his
compliance with the directive regarding the support
pendente lite within ten (10) days from compliance
thereof. SO ORDERED.
G.R. No. 163209 October 30, 2009
SPOUSES PRUDENCIO and FILOMENA LIM, Petitioners,
vs.
MA. CHERYL S. LIM, for herself and on behalf of her minor
children LESTER EDWARD S. LIM, CANDICE GRACE S. LIM,
and MARIANO S. LIM, III, Respondents.
The Case
For review1 is the Decision2 of the Court of Appeals,
dated 28 April 2003, ordering petitioners Prudencio and
144
Filomena Lim (petitioners) to provide legal support to
respondents Cheryl, Lester Edward, Candice Grace and
Mariano III, all surnamed Lim (respondents).
The Facts
In 1979, respondent Cheryl S. Lim (Cheryl) married
Edward Lim (Edward), son of petitioners. Cheryl bore
Edward three children, respondents Lester Edward,
Candice Grace and Mariano III. Cheryl, Edward and their
children resided at the house of petitioners in Forbes
Park, Makati City, together with Edward’s ailing
grandmother, Chua Giak and her husband Mariano Lim
(Mariano). Edward’s family business, which provided him
with a monthly salary of ₱6,000, shouldered the family
expenses. Cheryl had no steady source of income.
On 14 October 1990, Cheryl abandoned the Forbes Park
residence, bringing the children with her (then all
minors), after a violent confrontation with Edward whom
she caught with the in-house midwife of Chua Giak in
what the trial court described "a very compromising
situation."3
Cheryl, for herself and her children, sued petitioners,
Edward, Chua Giak and Mariano (defendants) in the
Regional Trial Court of Makati City, Branch 140 (trial
court) for support. The trial court ordered Edward to
provide monthly support of ₱6,000 pendente lite.4
The Ruling of the Trial Court
On 31 January 1996, the trial court rendered judgment
ordering Edward and petitioners to "jointly" provide
₱40,000 monthly support to respondents, with Edward
shouldering ₱6,000 and petitioners the balance of
₱34,000 subject to Chua Giak’s subsidiary liability.5
The defendants sought reconsideration, questioning their
liability. The trial court, while denying reconsideration,
clarified that petitioners and Chua Giak were held jointly
liable with Edward because of the latter’s "inability x x x
to give sufficient support x x x."6
Petitioners appealed to the Court of Appeals assailing,
among others, their liability to support respondents.
Petitioners argued that while Edward’s income is
insufficient, the law itself sanctions its effects by
providing that legal support should be "in keeping with
the financial capacity of the family" under Article 194 of
the Civil Code, as amended by Executive Order No. 209
(The Family Code of the Philippines).7
The Ruling of the Court of Appeals
In its Decision dated 28 April 2003, the Court of Appeals
affirmed the trial court. On the issue material to this
appeal, that is, whether there is basis to hold petitioners,
as Edward’s parents, liable with him to support
respondents, the Court of Appeals held:
The law on support under Article 195 of the Family Code
is clear on this matter. Parents and their legitimate
children are obliged to mutually support one another
and this obligation extends down to the legitimate
grandchildren and great grandchildren.
In connection with this provision, Article 200 paragraph
(3) of the Family Code clearly provides that should the
person obliged to give support does not have sufficient
means to satisfy all claims, the other persons enumerated
in Article 199 in its order shall provide the necessary
support. This is because the closer the relationship of the
relatives, the stronger the tie that binds them. Thus, the
obligation to 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.8
Petitioners sought reconsideration but the Court of
Appeals denied their motion in the Resolution dated 12
April 2004.
Hence, this petition.
The Issue
The issue is whether petitioners are concurrently liable
with Edward to provide support to respondents.
The Ruling of the Court
We rule in the affirmative. However, we modify the
appealed judgment by limiting petitioners’ liability to the
amount of monthly support needed by respondents
Lester Edward, Candice Grace and Mariano III only.
Petitioners Liable to Provide Support but only to their
Grandchildren
By statutory9 and jurisprudential mandate,10 the liability
of ascendants to provide legal support to their
descendants is beyond cavil. Petitioners themselves
admit as much – they limit their petition to the narrow
question of when their liability is triggered, not if they are
liable. Relying on provisions11 found in Title IX of the Civil
Code, as amended, on Parental Authority, petitioners
theorize that their liability is activated only
upon default of parental authority, conceivably either by
its termination12 or suspension13 during the children’s
145
minority. Because at the time respondents sued for
support, Cheryl and Edward exercised parental authority
over their children,14 petitioners submit that the
obligation to support the latter’s offspring ends with
them.
Neither the text of the law nor the teaching of
jurisprudence supports this severe constriction of the
scope of familial obligation to give support. In the first
place, the governing text are the relevant provisions in
Title VIII of the Civil Code, as amended, on Support, not
the provisions in Title IX on Parental Authority. While
both areas share a common ground in that parental
authority encompasses the obligation to provide legal
support,15 they differ in other concerns including
the duration of the obligation and its concurrence among
relatives of differing degrees.16 Thus, although the
obligation to provide support arising from parental
authority ends upon the emancipation of the child,17 the
same obligation arising from spousal and general familial
ties ideally lasts during the obligee's lifetime.. Also, while
parental authority under Title IX (and the correlative
parental rights) pertains to parents, passing to
ascendants only upon its termination or suspension, the
obligation to provide legal support passes on to
ascendants not only upon default of the parents but also
for the latter’s inability to provide sufficient support. As
we observed in another case raising the ancillary issue of
an ascendant’s obligation to give support in light of the
father’s sufficient means:
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. We agree
with this view.
xxxx
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. x x x18 (Emphasis supplied; internal citations
omitted)
Here, there is no question that Cheryl is unable to
discharge her obligation to provide sufficient legal
support to her children, then all school-bound. It is also
undisputed that the amount of support Edward is able to
give to respondents, ₱6,000 a month, is insufficient to
meet respondents’ basic needs. This inability of Edward
and Cheryl to sufficiently provide for their children shifts
a portion of their obligation to the ascendants in the
nearest degree, both in the paternal (petitioners) and
maternal19 lines, following the ordering in Article 199. To
hold otherwise, and thus subscribe to petitioners’ theory,
is to sanction the anomalous scenario of tolerating
extreme material deprivation of children because of
parental inability to give adequate support even if
ascendants one degree removed are more than able to
fill the void.1avvphi1
However, petitioners’ partial concurrent obligation
extends only to their descendants as this word is
commonly understood to refer to relatives, by blood of
lower degree. As petitioners’ grandchildren by blood,
only respondents Lester Edward, Candice Grace and
Mariano III belong to this category. Indeed, Cheryl’s right
to receive support from the Lim family extends only to
her husband Edward, arising from their marital
bond.20 Unfortunately, Cheryl’s share from the amount of
monthly support the trial court awarded cannot be
determined from the records. Thus, we are constrained to
remand the case to the trial court for this limited
purpose.21
Petitioners Precluded from Availing of the Alternative
Option Under
Article 204 of the Civil Code, as Amended
As an alternative proposition, petitioners wish to avail of
the option in Article 204 of the Civil Code, as amended,
and pray that they be allowed to fulfill their obligation by
maintaining respondents at petitioners’ Makati residence.
The option is unavailable to petitioners.
The application of Article 204 which provides that —
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. (Emphasis
supplied)
is subject to its exception clause. Here, the persons
entitled to receive support are petitioners’ grandchildren
and daughter-in-law. Granting petitioners the option in
Article 204 will secure to the grandchildren a well-
provided future; however, it will also force Cheryl to
return to the house which, for her, is the scene of her
husband’s infidelity. While not rising to the level of
a legal obstacle, as indeed, Cheryl’s charge against
Edward for concubinage did not prosper for insufficient
evidence, her steadfast insistence on its occurrence
amounts to a moral impediment bringing the case within
146
the ambit of the exception clause of Article 204,
precluding its application.
WHEREFORE, we DENY the petition. We AFFIRM the
Decision of the Court of Appeals, dated 28 April 2003,
and its Resolution dated 12 April 2004 with
the MODIFICATION that petitioners Prudencio and
Filomena Lim are liable to provide support only to
respondents Lester Edward, Candice Grace and Mariano
III, all surnamed Lim. We REMAND the case to the
Regional Trial Court of Makati City, Branch 140, for
further proceedings consistent with this ruling.
SO ORDERED.
G.R. No. 182367 December 15, 2010
CHERRYL B. DOLINA, Petitioner,
vs.
GLENN D. VALLECERA, Respondent.
DECISION
ABAD, J.:
This case is about a mother’s claim for temporary support
of an unacknowledged child, which she sought in an
action for the issuance of a temporary protection order
that she brought against the supposed father.
The Facts and the Case
In February 2008 petitioner Cherryl B. Dolina filed a
petition with prayer for the issuance of a temporary
protection order against respondent Glenn D. Vallecera
before the Regional Trial Court (RTC) of Tacloban City in
P.O. 2008-02-071 for alleged woman and child abuse
under Republic Act (R.A.) 9262.2 In filling out the blanks in
the pro-forma complaint, Dolina added a handwritten
prayer for financial support3 from Vallecera for their
supposed child. She based her prayer on the latter’s
Certificate of Live Birth which listed Vallecera as the
child’s father. The petition also asked the RTC to order
Philippine Airlines, Vallecera’s employer, to withhold from
his pay such amount of support as the RTC may deem
appropriate.
Vallecera opposed the petition. He claimed that Dolina’s
petition was essentially one for financial support rather
than for protection against woman and child abuses; that
he was not the child’s father; that the signature
appearing on the child’s Certificate of Live Birth is not his;
that the petition is a harassment suit intended to force
him to acknowledge the child as his and give it financial
support; and that Vallecera has never lived nor has been
living with Dolina, rendering unnecessary the issuance of
a protection order against him.
On March 13, 20084 the RTC dismissed the petition after
hearing since no prior judgment exists establishing the
filiation of Dolina’s son and granting him the right to
support as basis for an order to compel the giving of
such support. Dolina filed a motion for reconsideration
but the RTC denied it in its April 4, 2008 Order,5 with an
admonition that she first file a petition for compulsory
recognition of her child as a prerequisite for support.
Unsatisfied, Dolina filed the present petition for review
directly with this Court.
The Issue Presented
The sole issue presented in this case is whether or not the
RTC correctly dismissed Dolina’s action for temporary
protection and denied her application for temporary
support for her child.
The Court’s Ruling
Dolina evidently filed the wrong action to obtain support
for her child. The object of R.A. 9262 under which she
filed the case is the protection and safety of women and
children who are victims of abuse or violence.6 Although
the issuance of a protection order against the respondent
in the case can include the grant of legal support for the
wife and the child, this assumes that both are entitled to
a protection order and to legal support.
Dolina of course alleged that Vallecera had been abusing
her and her child.1avvphil But it became apparent to the
RTC upon hearing that this was not the case since,
contrary to her claim, neither she nor her child ever lived
with Vallecera. As it turned out, the true object of her
action was to get financial support from Vallecera for her
child, her claim being that he is the father. He of course
vigorously denied this.
To be entitled to legal support, petitioner must, in proper
action, first establish the filiation of the child, if the same
is not admitted or acknowledged. Since Dolina’s demand
for support for her son is based on her claim that he is
Vallecera’s illegitimate child, the latter is not entitled to
such support if he had not acknowledged him, until
Dolina shall have proved his relation to him.7 The child’s
remedy is to file through her mother a judicial action
against Vallecera for compulsory recognition.8 If filiation
is beyond question, support follows as matter of
obligation.9 In short, illegitimate children are entitled to
support and successional rights but their filiation must be
duly proved.10
147
Dolina’s remedy is to file for the benefit of her child an
action against Vallecera for compulsory recognition in
order to establish filiation and then demand support.
Alternatively, she may directly file an action for support,
where the issue of compulsory recognition may be
integrated and resolved.11
It must be observed, however, that the RTC should not
have dismissed the entire case based solely on the lack of
any judicial declaration of filiation between Vallecera and
Dolina’s child since the main issue remains to be the
alleged violence committed by Vallecera against Dolina
and her child and whether they are entitled to protection.
But of course, this matter is already water under the
bridge since Dolina failed to raise this error on review.
This omission lends credence to the conclusion of the
RTC that the real purpose of the petition is to obtain
support from Vallecera.
While the Court is mindful of the best interests of the
child in cases involving paternity and filiation, it is just as
aware of the disturbance that unfounded paternity suits
cause to the privacy and peace of the putative father’s
legitimate family.12 Vallecera disowns Dolina’s child and
denies having a hand in the preparation and signing of
its certificate of birth. This issue has to be resolved in an
appropriate case.
ACCORDINGLY, the Court DENIES the petition and
AFFIRMS the Regional Trial Court of Tacloban City’s
Order dated March 13, 2008 that dismissed petitioner
Cherryl B. Dolina’s action in P.O. 2008-02-07, and Order
dated April 4, 2008, denying her motion for
reconsideration dated March 28, 2008.
SO ORDERED.
G.R. Nos. 175279-80 June 5, 2013
SUSAN LIM-LUA, Petitioner,
vs.
DANILO Y. LUA, Respondent.
DECISION
VILLARAMA, JR., J.:
In this petition for review on certiorari under Rule 45,
petitioner seeks to set aside the Decision1 dated April 20,
2006 and Resolution2 dated October 26, 2006 of the
Court of Appeals (CA) dismissing her petition for
contempt (CA-G.R. SP No. 01154) and granting
respondent's petition for certiorari (CA-G.R. SP No.
01315).
The factual background is as follows:
On September 3, 2003,3 petitioner Susan Lim-Lua filed an
action for the declaration of nullity of her marriage with
respondent Danilo Y. Lua, docketed as Civil Case No.
CEB-29346 of the Regional Trial Court (RTC) of Cebu City,
Branch 14.
In her prayer for support pendente lite for herself and her
two children, petitioner sought the amount of
₱500,000.00 as monthly support, citing respondent’s
huge earnings from salaries and dividends in several
companies and businesses here and abroad.4
After due hearing, Judge Raphael B. Yrastorza, Sr. issued
an Order5 dated March 31, 2004 granting support
pendente lite, as follows:
From the evidence already adduced by the parties, the
amount of Two Hundred Fifty (₱250,000.00) Thousand
Pesos would be sufficient to take care of the needs of the
plaintiff. This amount excludes the One hundred thirty-
five (₱135,000.00) Thousand Pesos for medical
attendance expenses needed by plaintiff for the
operation of both her eyes which is demandable upon
the conduct of such operation. The amounts already
extended to the two (2) children, being a commendable
act of defendant, should be continued by him
considering the vast financial resources at his disposal.
According to Art. 203 of the Family Code, support is
demandable from the time plaintiff needed the said
support but is payable only from the date of judicial
demand. Since the instant complaint was filed on 03
September 2003, the amount of Two Hundred Fifty
(₱250,000.00) Thousand should be paid by defendant to
plaintiff retroactively to such date until the hearing of the
support pendente lite. ₱250,000.00 x 7 corresponding to
the seven (7) months that lapsed from September, 2003
to March 2004 would tantamount to a total of One
Million Seven Hundred Fifty (₱1,750,000.00) Thousand
Pesos. Thereafter, starting the month of April 2004, until
otherwise ordered by this Court, defendant is ordered to
pay a monthly support of Two Hundred Fifty Thousand
(₱250,000.00) Pesos payable within the first five (5) days
of each corresponding month pursuant to the third
paragraph of Art. 203 of the Family Code of the
Philippines. The monthly support of ₱250,000.00 is
without prejudice to any increase or decrease thereof
that this Court may grant plaintiff as the circumstances
may warrant i.e. depending on the proof submitted by
the parties during the proceedings for the main action
for support.6
148
Respondent filed a motion for reconsideration,7 asserting c) to pay the costs.
that petitioner is not entitled to spousal support
considering that she does not maintain for herself a SO ORDERED.10
separate dwelling from their children and respondent has
continued to support the family for their sustenance and
Neither of the parties appealed this decision of the CA. In
well-being in accordance with family’s social and financial
a Compliance11 dated June 28, 2005, respondent
standing. As to the ₱250,000.00 granted by the trial court
attached a copy of a check he issued in the amount of
as monthly support pendente lite, as well as the
₱162,651.90 payable to petitioner. Respondent explained
₱1,750,000.00 retroactive support, respondent found it
that, as decreed in the CA decision, he deducted from the
unconscionable and beyond the intendment of the law
amount of support in arrears (September 3, 2003 to
for not having considered the needs of the respondent.
March 2005) ordered by the CA -- ₱2,185,000.00 -- plus
₱460,000.00 (April, May, June and July 2005), totaling
In its May 13, 2004 Order, the trial court stated that the ₱2,645,000.00, the advances given by him to his children
March 31, 2004 Order had become final and executory and petitioner in the sum of ₱2,482,348.16 (with attached
since respondent’s motion for reconsideration is treated photocopies of receipts/billings).
as a mere scrap of paper for violation of the threeday
notice period under Section 4, Rule 15 of the 1997 Rules
In her Comment to Compliance with Motion for Issuance
of Civil Procedure, as amended, and therefore did not
of a Writ of Execution,12 petitioner asserted that none of
interrupt the running of the period to appeal.
the expenses deducted by respondent may be
Respondent was given ten (10) days to show cause why
chargeable as part of the monthly support contemplated
he should not be held in contempt of the court for
by the CA in CA-G.R. SP No. 84740.
disregarding the March 31, 2004 order granting support
pendente lite.8
On September 27, 2005, the trial court issued an
Order13 granting petitioner’s motion for issuance of a writ
His second motion for reconsideration having been
of execution as it rejected respondent’s interpretation of
denied, respondent filed a petition for certiorari in the
the CA decision. Respondent filed a motion for
CA.
reconsideration and subsequently also filed a motion for
inhibition of Judge Raphael B. Yrastorza, Sr. On
On April 12, 2005, the CA rendered its Decision,9 finding November 25, 2005, Judge Yrastorza, Sr. issued an
merit in respondent’s contention that the trial court Order14 denying both motions.
gravely abused its discretion in granting ₱250,000.00
monthly support to petitioner without evidence to prove
WHEREFORE, in view of the foregoing premises, both
his actual income. The said court thus decreed:
motions are DENIED. Since a second motion for
reconsideration is prohibited under the Rules, this denial
WHEREFORE, foregoing premises considered, this has attained finality; let, therefore, a writ of execution be
petition is given due course. The assailed Orders dated issued in favor of plaintiff as against defendant for the
March 31, 2004, May 13, 2004, June 4, 2004 and June 18, accumulated support in arrears pendente lite.
2004 of the Regional Trial Court, Branch 14, Cebu City
issued in Civil Case No. CEB No. 29346 entitled "Susan
Notify both parties of this Order.
Lim Lua versus Danilo Y. Lua" are hereby nullified and set
aside and instead a new one is entered ordering herein
petitioner: SO ORDERED.15

a) to pay private respondent a monthly support
pendente lite of ₱115,000.00 beginning the
month of April 2005 and every month
thereafter within the first five (5) days thereof;
b) to pay the private respondent the amount of
₱115,000.00 a month multiplied by the number
of months starting from September 2003 until
March 2005 less than the amount supposedly
given by petitioner to the private respondent as
her and their two (2) children monthly support;
and
Since respondent still failed and refused to pay the
support in arrears pendente lite, petitioner filed in the CA
a Petition for Contempt of Court with Damages,
docketed as CA-G.R. SP No. 01154 ("Susan Lim Lua versus
Danilo Y. Lua"). Respondent, on the other hand, filed CA-
G.R. SP No. 01315, a Petition for Certiorari under Rule 65
of the Rules of Court ("Danilo Y. Lua versus Hon. Raphael
B. Yrastorza, Sr., in his capacity as Presiding Judge of
Regional Trial Court of Cebu, Branch 14, and Susan Lim
Lua"). The two cases were consolidated.
By Decision dated April 20, 2006, the CA set aside the
assailed orders of the trial court, as follows:

149
WHEREFORE, judgment is hereby rendered:
a) DISMISSING, for lack of merit, the case of
Petition for Contempt of Court with Damages
filed by Susan Lim Lua against Danilo Y. Lua
with docket no. SP. CA-GR No. 01154;
b) GRANTING Danilo Y. Lua’s Petition for
Certiorari docketed as SP. CA-GR No. 01315.
Consequently, the assailed Orders dated 27
September 2005 and 25 November 2005 of the
Regional Trial Court, Branch 14, Cebu City
issued in Civil Case No. CEB-29346 entitled
"Susan Lim Lua versus Danilo Y. Lua, are hereby
NULLIFIED and SET ASIDE, and instead a new
one is entered:
i. ORDERING the deduction of the
amount of Ph₱2,482,348.16 plus
946,465.64, or a total of
PhP3,428,813.80 from the current
total support in arrears of Danilo Y.
Lua to his wife, Susan Lim Lua and
their two (2) children;
ii. ORDERING Danilo Y. Lua to resume
payment of his monthly support of
Ph₱115,000.00 pesos starting from
the time payment of this amount was
deferred by him subject to the
deductions aforementioned.
iii. DIRECTING the issuance of a
permanent writ of preliminary
injunction.
SO ORDERED.16
The appellate court said that the trial court should not
have completely disregarded the expenses incurred by
respondent consisting of the purchase and maintenance
of the two cars, payment of tuition fees, travel expenses,
and the credit card purchases involving groceries, dry
goods and books, which certainly inured to the benefit
not only of the two children, but their mother (petitioner)
as well. It held that respondent’s act of deferring the
monthly support adjudged in CA-G.R. SP No. 84740 was
not contumacious as it was anchored on valid and
justifiable reasons. Respondent said he just wanted the
issue of whether to deduct his advances be settled first in
view of the different interpretation by the trial court of
the appellate court’s decision in CA-G.R. SP No. 84740. It
also noted the lack of contribution from the petitioner in
the joint obligation of spouses to support their children.
Petitioner filed a motion for reconsideration but it was
denied by the CA.
Hence, this petition raising the following errors allegedly
committed by the CA:
I.
THE HONORABLE COURT ERRED IN NOT
FINDING RESPONDENT GUILTY OF INDIRECT
CONTEMPT.
II.
THE HONORABLE COURT ERRED IN ORDERING
THE DEDUCTION OF THE AMOUNT OF
PH₱2,482,348.16 PLUS 946,465.64, OR A TOTAL
OF PH₱3,428,813.80 FROM THE CURRENT
TOTAL SUPPORT IN ARREARS OF THE
RESPONDENT TO THE PETITIONER AND THEIR
CHILDREN.17
The main issue is whether certain expenses already
incurred by the respondent may be deducted from the
total support in arrears owing to petitioner and her
children pursuant to the Decision dated April 12, 2005 in
CA-G.R. SP No. 84740.
The pertinent provision of the Family Code of the
Philippines provides:
Article 194. Support comprises everything indispensable
for sustenance, dwelling, clothing, medical attendance,
education and transportation, in keeping with the
financial capacity of the family.
The education of the person entitled to be supported
referred to in the preceding paragraph shall include his
schooling or training for some profession, trade or
vocation, even beyond the age of majority.
Transportation shall include expenses in going to and
from school, or to and from place of work. (Emphasis
supplied.)
Petitioner argues that it was patently erroneous for the
CA to have allowed the deduction of the value of the two
cars and their maintenance costs from the support in
arrears, as these items are not indispensable to the
sustenance of the family or in keeping them alive. She
points out that in the Decision in CA-G.R. SP No. 84740,
the CA already considered the said items which it
deemed chargeable to respondent, while the monthly
support pendente lite (₱115,000.00) was fixed on the
basis of the documentary evidence of respondent’s
150
alleged income from various businesses and petitioner’s
testimony that she needed ₱113,000.00 for the
maintenance of the household and other miscellaneous
expenses excluding the ₱135,000.00 medical attendance
expenses of petitioner.
Respondent, on the other hand, contends that
disallowing the subject deductions would result in unjust
enrichment, thus making him pay for the same obligation
twice. Since petitioner and the children resided in one
residence, the groceries and dry goods purchased by the
children using respondent’s credit card, totalling
₱594,151.58 for the period September 2003 to June 2005
were not consumed by the children alone but shared
with their mother. As to the Volkswagen Beetle and BMW
316i respondent bought for his daughter Angelli Suzanne
Lua and Daniel Ryan Lua, respectively, these, too, are to
be considered advances for support, in keeping with the
financial capacity of the family. Respondent stressed that
being children of parents belonging to the upper-class
society, Angelli and Daniel Ryan had never in their entire
life commuted from one place to another, nor do they
eat their meals at "carinderias". Hence, the cars and their
maintenance are indispensable to the children’s day-to-
day living, the value of which were properly deducted
from the arrearages in support pendente lite ordered by
the trial and appellate courts.
As a matter of law, the amount of support which those
related by marriage and family relationship is generally
obliged to give each other shall be in proportion to the
resources or means of the giver and to the needs of the
recipient.18 Such support comprises everything
indispensable for sustenance, dwelling, clothing, medical
attendance, education and transportation, in keeping
with the financial capacity of the family.
Upon receipt of a verified petition for declaration of
absolute nullity of void marriage or for annulment of
voidable marriage, or for legal separation, and at any
time during the proceeding, the court, motu proprio or
upon verified application of any of the parties, guardian
or designated custodian, may temporarily grant support
pendente lite prior to the rendition of judgment or final
order.19 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.20
In this case, the amount of monthly support pendente lite
for petitioner and her two children was determined after
due hearing and submission of documentary evidence by
the parties. Although the amount fixed by the trial court
was reduced on appeal, it is clear that the monthly
support pendente lite of ₱115,000.00 ordered by the CA
was intended primarily for the sustenance of petitioner
and her children, e.g., food, clothing, salaries of drivers
and house helpers, and other household expenses.
Petitioner’s testimony also mentioned the cost of regular
therapy for her scoliosis and vitamins/medicines.
ATTY. ZOSA:
xxxx
Q How much do you spend for your food and your two
(2) children every month?
A Presently, Sir?
ATTY. ZOSA:
Yes.
A For the food alone, I spend not over ₱40,000.00 to
₱50,000.00 a month for the food alone.
xxxx
ATTY. ZOSA:
Q What other expenses do you incur in living in that
place?
A The normal household and the normal expenses for a
family to have a decent living, Sir.
Q How much other expenses do you incur?
WITNESS:
A For other expenses, is around over a ₱100,000.00, Sir.
Q Why do you incur that much amount?
A For the clothing for the three (3) of us, for the vitamins
and medicines. And also I am having a special therapy to
straighten my back because I am scoliotic. I am advised
by the Doctor to hire a driver, but I cannot still afford it
now. Because my eyesight is not reliable for driving. And I
still need another househelp to accompany me whenever
I go marketing because for my age, I cannot carry
anymore heavy loads.
xxxx
151
ATTY. FLORES: Q Madam witness, let us talk of the present needs. x x x.
What else, what specific need that you would like to add
xxxx so I can tell my client, the defendant.

Q On the issue of the food for you and the two (2)
children, you mentioned ₱40,000.00 to ₱50,000.00?
A Yes, for the food alone.
Q Okay, what other possible expenses that you would
like to include in those two (2) items? You mentioned of
a driver, am I correct?
WITNESS:
A I need to have an operation both of my eyes. I also
need a special therapy for my back because I am
scoliotic, three (3) times a week.
Q That is very reasonable. [W]ould you care to please
repeat that?

A Yes, I might need two (2) drivers, Sir for me and my A Therapy for my scoliotic back and then also for the
children. operation both of my eyes. And I am also taking some
vitamins from excel that will cost ₱20,000.00 a month.
Q Okay. How much would you like possibly to pay for
those two (2) drivers? Q Okay. Let’s have piece by piece. Have you asked the
Doctor how much would it cost you for the operation of
that scoliotic?
A I think ₱10,000.00 a month for one (1) driver. So I need
two (2) drivers. And I need another househelp.
A Yes before because I was already due last year. Before,
this eye will cost ₱60,000.00 and the other eyes
Q You need another househelp. The househelp nowadays
₱75,000.00.
would charge you something between ₱3,000.00 to
₱4,000.00. That’s quite…
Q So for both eyes, you are talking of ₱60,000.00 plus
₱75,000.00 is ₱135,000.00?
A Right now, my househelp is receiving ₱8,000.00. I need
another which I will give a compensation of ₱5,000.00.
A Yes.
Q Other than that, do you still have other expenses?
xxxx
A My clothing.
Q You talk of therapy?
COURT:
A Yes.
How about the schooling for your children?
Q So how much is that?
WITNESS:
A Around ₱5,000.00 a week.21
A The schooling is shouldered by my husband, Your
Honor. As to the financial capacity of the respondent, it is
beyond doubt that he can solely provide for the
subsistence, education, transportation, health/medical
COURT:
needs and recreational activities of his children, as well as
those of petitioner who was then unemployed and a full-
Everything? time housewife. Despite this, respondent’s counsel
manifested during the same hearing that respondent was
A Yes, Your Honor. willing to grant the amount of only ₱75,000.00 as
monthly support pendente lite both for the children and
xxxx petitioner as spousal support. Though the receipts of
expenses submitted in court unmistakably show how
much respondent lavished on his children, it appears that
ATTY. FLORES:
the matter of spousal support was a different matter

152
altogether. Rejecting petitioner’s prayer for ₱500,000.00
Dental Expenses of Daniel 11,500.00
monthly support and finding the ₱75,000.00 monthly
Ryan
support offered by respondent as insufficient, the trial
court fixed the monthly support pendente lite at Travel expenses of Susan 14,611.15
₱250,000.00. However, since the supposed income in Lim-Lua
millions of respondent was based merely on the
allegations of petitioner in her complaint and registration Credit card purchases of 408,891.08
documents of various corporations which respondent Angelli
insisted are owned not by him but his parents and Suzanne
siblings, the CA reduced the amount of support
pendente lite to ₱115,000.00, which ruling was no longer Salon and travel expenses of 87,112.70
questioned by both parties. Angelli
Suzanne
Controversy between the parties resurfaced when School expenses of Daniel 260,900.00
respondent’s compliance with the final CA decision Ryan Lua
indicated that he deducted from the total amount in
arrears (₱2,645,000.00) the sum of ₱2,482,348.16, Cash given to Daniel and 121,000.00
representing the value of the two cars for the children, Angelli
their cost of maintenance and advances given to
petitioner and his children. Respondent explained that TOTAL - Php 946,465.64
the deductions were made consistent with the fallo of the
CA Decision in CA-G.R. SP No. 84740 ordering him to pay
support pendente lite in arrears less the amount GRAND TOTAL - Php
supposedly given by him to petitioner as her and their 3,428,813.80
two children’s monthly support.
The CA, in ruling for the respondent said that all the
The following is a summary of the subject deductions foregoing expenses already incurred by the respondent
under Compliance dated June 28, 2005, duly supported should, in equity, be considered advances which may be
by receipts22: properly deducted from the support in arrears due to the
petitioner and the two children. Said court also noted the
absence of petitioner’s contribution to the joint
Car purchases for Angelli Php1,350,000.00
obligation of support for their children.
Suzanne -

and Daniel Ryan - 613,472.86 We reverse in part the decision of the CA.

Car Maintenance fees of 51,232.50

Judicial determination of support pendente lite in cases
Angelli -
of legal separation and petitions for declaration of nullity
Suzanne or annulment of marriage are guided by the following
provisions of the Rule on Provisional Orders24
Credit card statements of 348,682.28
Daniel Ryan -
Sec. 2. Spousal Support.–In determining support for the
Car Maintenance fees of 118,960.52 spouses, the court may be guided by the following rules:
Daniel Ryan -
(a) In the absence of adequate provisions in a
Php2,482,348.16
written agreement between the spouses, the
spouses may be supported from the properties
After the trial court disallowed the foregoing deductions, of the absolute community or the conjugal
respondent filed a motion for reconsideration further partnership.
asserting that the following amounts, likewise with
supporting receipts, be considered as additional (b) The court may award support to either
advances given to petitioner and the children23: spouse in such amount and for such period of
time as the court may deem just and
reasonable based on their standard of living
Medical expenses of Susan Php 42,450.71 during the marriage.
Lim-Lua

153
 (c) The court may likewise consider the
following factors: (1) whether the spouse
seeking support is the custodian of a child
whose circumstances make it appropriate for
that spouse not to seek outside employment;
(2) the time necessary to acquire sufficient
education and training to enable the spouse
seeking support to find appropriate
employment, and that spouse’s future earning
capacity; (3) the duration of the marriage; (4)
the comparative financial resources of the
spouses, including their comparative earning
abilities in the labor market; (5) the needs and
obligations of each spouse; (6) the contribution
of each spouse to the marriage, including
services rendered in home-making, child care,
education, and career building of the other
spouse; (7) the age and health of the spouses;
(8) the physical and emotional conditions of the
spouses; (9) the ability of the supporting spouse
to give support, taking into account that
spouse’s earning capacity, earned and
unearned income, assets, and standard of living;
and (10) any other factor the court may deem
just and equitable.
(d) The Family Court may direct the deduction
of the provisional support from the salary of the
spouse.
Sec. 3. Child Support.–The common children of the
spouses shall be supported from the properties of the
absolute community or the conjugal partnership.
Subject to the sound discretion of the court, either parent
or both may be ordered to give an amount necessary for
the support, maintenance, and education of the child. It
shall be in proportion to the resources or means of the
giver and to the necessities of the recipient.
In determining the amount of provisional support, the
court may likewise consider the following factors: (1) the
financial resources of the custodial and non-custodial
parent and those of the child; (2) the physical and
emotional health of the child and his or her special needs
and aptitudes; (3) the standard of living the child has
been accustomed to; (4) the non-monetary contributions
that the parents will make toward the care and well-
being of the child.
The Family Court may direct the deduction of the
provisional support from the salary of the parent.
Since the amount of monthly support pendente lite as
fixed by the CA was not appealed by either party, there is
no controversy as to its sufficiency and reasonableness.
The dispute concerns the deductions made by
respondent in settling the support in arrears.
On the issue of crediting of money payments or expenses
against accrued support, we find as relevant the
following rulings by US courts.
In Bradford v. Futrell,25 appellant sought review of the
decision of the Circuit Court which found him in arrears
with his child support payments and entered a decree in
favor of appellee wife. He complained that in
determining the arrearage figure, he should have been
allowed full credit for all money and items of personal
property given by him to the children themselves, even
though he referred to them as gifts. The Court of Appeals
of Maryland ruled that in the suit to determine amount of
arrears due the divorced wife under decree for support of
minor children, the husband (appellant) was not entitled
to credit for checks which he had clearly designated as
gifts, nor was he entitled to credit for an automobile
given to the oldest son or a television set given to the
children. Thus, if the children remain in the custody of the
mother, the father is not entitled to credit for money paid
directly to the children if such was paid without any
relation to the decree.
In the absence of some finding of consent by the mother,
most courts refuse to allow a husband to dictate how he
will meet the requirements for support payments when
the mode of payment is fixed by a decree of court. Thus
he will not be credited for payments made when he
unnecessarily interposed himself as a volunteer and
made payments direct to the children of his own accord.
Wills v. Baker, 214 S. W. 2d 748 (Mo. 1948); Openshaw v.
Openshaw, 42 P. 2d 191 (Utah 1935). In the latter case
the court said in part: "The payments to the children
themselves do not appear to have been made as
payments upon alimony, but were rather the result of his
fatherly interest in the welfare of those children. We do
not believe he should be permitted to charge them to
plaintiff. By so doing he would be determining for Mrs.
Openshaw the manner in which she should expend her
allowances. It is a very easy thing for children to say their
mother will not give them money, especially as they may
realize that such a plea is effective in attaining their ends.
If she is not treating them right the courts are open to
the father for redress."26
In Martin, Jr. v. Martin,27 the Supreme Court of
Washington held that a father, who is required by a
divorce decree to make child support payments directly
to the mother, cannot claim credit for payments
voluntarily made directly to the children. However,
special considerations of an equitable nature may justify
a court in crediting such payments on his indebtedness
154
to the mother, when such can be done without injustice
to her.
The general rule is to the effect that when a father is
required by a divorce decree to pay to the mother money
for the support of their dependent children and the
unpaid and accrued installments become judgments in
her favor, he cannot, as a matter of law, claim credit on
account of payments voluntarily made directly to the
children. Koon v. Koon, supra; Briggs v. Briggs, supra.
However, special considerations of an equitable nature
may justify a court in crediting such payments on his
indebtedness to the mother, when that can be done
without injustice to her. Briggs v. Briggs, supra. The
courts are justifiably reluctant to lay down any general
rules as to when such credits may be
allowed.28 (Emphasis supplied.)
Here, the CA should not have allowed all the expenses
incurred by respondent to be credited against the
accrued support pendente lite. As earlier mentioned, the
monthly support pendente lite granted by the trial court
was intended primarily for food, household expenses
such as salaries of drivers and house helpers, and also
petitioner’s scoliosis therapy sessions. Hence, the value of
two expensive cars bought by respondent for his children
plus their maintenance cost, travel expenses of petitioner
and Angelli, purchases through credit card of items other
than groceries and dry goods (clothing) should have
been disallowed, as these bear no relation to the
judgment awarding support pendente lite. While it is true
that the dispositive portion of the executory decision in
CA-G.R. SP No. 84740 ordered herein respondent to pay
the support in arrears "less than the amount supposedly
given by petitioner to the private respondent as her and
their two (2) children monthly support," the deductions
should be limited to those basic needs and expenses
considered by the trial and appellate courts. The assailed
ruling of the CA allowing huge deductions from the
accrued monthly support of petitioner and her children,
while correct insofar as it commends the generosity of
the respondent to his children, is clearly inconsistent with
the executory decision in CA-G.R. SP No. 84740. More
important, it completely ignores the unfair consequences
to petitioner whose sustenance and well-being, was
given due regard by the trial and appellate courts. This is
evident from the March 31, 2004 Order granting support
pendente lite to petitioner and her children, when the
trial court observed:
While there is evidence to the effect that defendant is
giving some forms of financial assistance to his two (2)
children via their credit cards and paying for their school
expenses, the same is, however, devoid of any form of
spousal support to the plaintiff, for, at this point in time,
while the action for nullity of marriage is still to be heard,
it is incumbent upon the defendant, considering the
physical and financial condition of the plaintiff and the
overwhelming capacity of defendant, to extend support
unto the latter. x x x29
On appeal, while the Decision in CA-G.R. SP No. 84740
reduced the amount of monthly support fixed by the trial
court, it nevertheless held that considering respondent’s
financial resources, it is but fair and just that he give a
monthly support for the sustenance and basic necessities
of petitioner and his children. This would imply that any
amount respondent seeks to be credited as monthly
support should only cover those incurred for sustenance
and household expenses.1avvphi1
In the case at bar, records clearly show and in fact has
been admitted by petitioner that aside from paying the
expenses of their two (2) children’s schooling, he gave his
two (2) children two (2) cars and credit cards of which the
expenses for various items namely: clothes, grocery items
and repairs of their cars were chargeable to him which
totaled an amount of more than One Hundred Thousand
(₱100,000.00) for each of them and considering that as
testified by the private respondent that she needs the
total amount of ₱113,000.00 for the maintenance of the
household and other miscellaneous expenses and
considering further that petitioner can afford to buy cars
for his two (2) children, and to pay the expenses incurred
by them which are chargeable to him through the credit
cards he provided them in the amount of ₱100,000.00
each, it is but fair and just that the monthly support
pendente lite for his wife, herein private respondent, be
fixed as of the present in the amount of ₱115,000.00
which would be sufficient enough to take care of the
household and other needs. This monthly support
pendente lite to private respondent in the amount of
₱115,000.00 excludes the amount of One Hundred
ThirtyFive (₱135,000.00) Thousand Pesos for medical
attendance expenses needed by private respondent for
the operation of both her eyes which is demandable
upon the conduct of such operation. Likewise, this
monthly support of ₱115,000.00 is without prejudice to
any increase or decrease thereof that the trial court may
grant private respondent as the circumstances may
warrant i.e. depending on the proof submitted by the
parties during the proceedings for the main action for
support.
The amounts already extended to the two (2) children,
being a commendable act of petitioner, should be
continued by him considering the vast financial resources
at his disposal.30 (Emphasis supplied.)
Accordingly, only the following expenses of respondent
may be allowed as deductions from the accrued support
pendente lite for petitioner and her children:
155
 1âwphi1
Medical expenses of Susan Php 42,450.71
Lim-Lua
Dental Expenses of Daniel Ryan 11,500.00
Credit card purchases of 365,282.20
Angelli
(Groceries and Dry Goods) 228,869.38
Credit Card purchases of
Daniel Ryan
TOTAL Php
648,102.29
As to the contempt charge, we sustain the CA in holding
that respondent is not guilty of indirect contempt.
Contempt of court is defined as a disobedience to the
court by acting in opposition to its authority, justice, and
dignity. It signifies not only a willful disregard or
disobedience of the court’s order, but such conduct
which tends to bring the authority of the court and the
administration of law into disrepute or, in some manner,
to impede the due administration of justice.31 To
constitute contempt, the act must be done willfully and
for an illegitimate or improper purpose.32 The good faith,
or lack of it, of the alleged contemnor should be
considered.33
Respondent admittedly ceased or suspended the giving
of monthly support pendente lite granted by the trial
court, which is immediately executory. However, we
agree with the CA that respondent’s act was not
contumacious considering that he had not been remiss in
actually providing for the needs of his children. It is a
matter of record that respondent continued shouldering
the full cost of their education and even beyond their
basic necessities in keeping with the family’s social status.
Moreover, respondent believed in good faith that the
trial and appellate courts, upon equitable grounds, would
allow him to offset the substantial amounts he had spent
or paid directly to his children.
Respondent complains that petitioner is very much
capacitated to generate income on her own because she
presently maintains a boutique at the Ayala Center Mall
in Cebu City and at the same time engages in the
business of lending money. He also claims that the two
children have finished their education and are now
employed in the family business earning their own
salaries.
Suffice it to state that the matter of increase or reduction
of support should be submitted to the trial court in which
the action for declaration for nullity of marriage was filed,
as this Court is not a trier of facts. The amount of support
may be reduced or increased proportionately according
to the reduction or increase of the necessities of the
recipient and the resources or means of the person
obliged to support.34 As we held in Advincula v.
Advincula35
…Judgment for support does not become final. The right
to support is of such nature that its allowance is
essentially provisional; for during the entire period that a
needy party is entitled to support, his or her alimony may
be modified or altered, in accordance with his increased
or decreased needs, and with the means of the giver. It
cannot be regarded as subject to final determination.36
WHEREFORE, the petition is PARTLY GRANTED. The
Decision dated April 20, 2006 of the Court of Appeals in
CA-G.R. SP Nos. 01154 and 01315 is hereby MODIFIED to
read as follows:
"WHEREFORE, judgment is hereby rendered:
a) DISMISSING, for lack of merit, the case of
Petition for Contempt of Court with Damages
filed by Susan Lim Lua against Danilo Y. Lua
with docket no. SP. CA-G.R. No. 01154;
b) GRANTING IN PART Danilo Y. Lua's Petition
for Certiorari docketed as SP. CA-G.R. No.
01315. Consequently, the assailed Orders dated
27 September 2005 and 25 November 2005 of
the Regional Trial Court, Branch 14, Cebu City
issued in Civil Case No. CEB-29346 entitled
"Susan Lim Lua versus Danilo Y. Lua, are hereby
NULLIFIED and SET ASIDE, and instead a new
one is entered:
i. ORDERING the deduction of the
amount of Php 648,102.29 from the
support pendente lite in arrears of
Danilo Y. Lua to his wife, Susan Lim
Lua and their two (2) children;
ii. ORDERING Danilo Y. Lua to resume
payment of his monthly support of
Ph₱115,000.00 pesos starting from
the time payment of this amount was
deferred by him subject to the
deduction aforementioned.
iii. DIRECTING the immediate
execution of this judgment.
SO ORDERED." No pronouncement as to costs.
156
 G.R. No. 193225 February 9, 2015
BBB,* Petitioner,
vs.
AAA,* Respondent.
RESOLUTION
REYES, J.:
Petitioner BBB is now before this Court with a Petition for
Review on Certiorari1 under Rule 45 of the Rules of Civil
Procedure to assail the Decision2 dated November 6,
2009 and Resolution3 dated August 3, 2010 of the Court
of Appeals (CA) in CA-G.R. CV No. 89581, which affirmed
with modification the issuance against him on August 14,
2007 of a Permanent Protection Order (PPO)4 by the
Regional Trial Court (RTC) of Pasig City, Branch 162, in
favor of his wife, herein respondent AAA.
Antecedent Facts
The CA aptly summarized as follows the facts of the case
until the RTC’s issuance of the PPO against BBB:
Both [BBB] and [AAA] allege that they first met in 1991
but started to date seriously only in 1996. [AAA] was then
a medical student and was raising her first child borne
from a previous relationship, a boy named [CCC], with
the help of her parents.
During the relationship with [BBB], [AAA] bore two more
children namely, [DDD] (born on December 11, 1997) and
[EEE] (born on October 19, 2000).
To legalize their relationship, [BBB] and [AAA] married in
civil rights on October 10, 2002 and thereafter, the birth
certificates of the children, including [CCC’s], was
amended to change their civil status to legitimated by
virtue of the said marriage.
The relationship, both admit, was far from ideal and has
had its share of happy moments and heated arguments.
The two however have contradicting statements as to the
cause of their present situation.
[BBB] alleges that [AAA’s] irrational jealousy has caused
their frequent arguments. According to [BBB], [AAA] has
been suspicious of [BBB] and his relationship with his
female co-workers, which [BBB] alleges, contrary to
[AAA’s] suspicion, are purely professional. According to
[BBB], because of their repeated fights, he was forced to
leave the family home to prevent the brewing animosity
between him and his wife. Soon after [BBB] left, [AAA]
herself decided to leave the family home and brought the
children with her, which made it difficult for [BBB] to see
their kids regularly. This has also caused the family
expense to double, making it even more difficult for
[BBB] to fulfill his financial obligations.
[AAA], on the other hand, alleges that their heated
arguments were often due to [BBB’s] incessant
womanizing. When confronted about it, [BBB], instead of
denying the same, would even curse [AAA].
The breaking point for [AAA] came when, [BBB’s] alleged
mistress, a woman by the name of [FFF], insulted and
humiliated [AAA] in public, in the presence of [BBB]
himself, who, according to [AAA], did nothing to stop the
same. Extremely hurt, [AAA] decided to leave the
conjugal home with the children and lived temporarily at
a friend’s house. She however went back to the conjugal
home with [DDD] and [EEE] after some time, leaving her
son [CCC] at her friend’s house.
What made matters worse, according to [AAA], was the
apparent biases of [BBB] in favor of [DDD] and [EEE]. That
despite his promise to treat [CCC] as his own, [BBB]
would still treat the latter differently from the two kids,
putting [CCC] at a disadvantage. [AAA], cites as example
the instances when, [BBB] would buy food and toys for
[DDD] and [EEE] only, buying nothing for [CCC].
While living separately from [BBB], [AAA] discovered that
[BBB] was not paying the rentals due on the
condominium unit they were occupying, forcing [AAA] to
move out. [AAA] was likewise compelled to find work to
support the family, after [BBB] has started to be remiss in
his financial obligations to the family. According to [AAA],
the amounts given by [BBB] were not sufficient to cover
the family expenses, forcing her to request for loans from
friends.
[AAA] likewise feels threatened after discovering [that
BBB] was stalking her and/or their children. [AAA] alleges
that she found out that [BBB] has sought the help of one
[GGG], a friend of [BBB] who lives within the same
compound where [AAA] lives, to go through the guard’s
logbook to monitor their every move, i.e., who visits
them, what time [AAA] leaves and returns back home,
etc.
Citing the foregoing as constituting economic and
psychological abuse, [AAA] filed an application for the
issuance of a Temporary Protection Order with a request
to make the same permanent after due hearing, before
the Regional Trial Court of Pasig City.
157
Finding good ground in [AAA’s] application, the court a
quo issued a Temporary Protection Order (TPO). The TPO
was thereafter, made permanent by virtue of a Decision
of the RTC dated August [14, 2007], the dispositive
portion of which orders:
"x x x x
a. Prohibiting [BBB], directly and indirectly, from stalking,
harassing, annoying, or otherwise verbally abusing [AAA],
directly or indirectly, to refrain from insulting her, cursing
her and shouting invectives at her;
b. Prohibiting [BBB] from committing or threatening to
commit any act that may cause mental and emotional
anguish to [AAA], i.e. publicly displaying her extramarital
relations with his mistress [FFF] and anyone else for that
matter;
c. Prohibiting [BBB] from exposing the minor children to
immoral and illicit environment, specifically prohibiting
him to allow her (sic) mistress[FFF] and anyone else to be
with them in instances where he would be allowed by this
Court to see their children;
d. Allowing [BBB] ALONE to see and visit his children
once a month (for a total of 12 visits per year) at the
latter’s residence for a maximum period of 2 years
[sic]each visit, subject to further orders from this Court.
For this purpose, [BBB’s every visit] shall be accompanied
by the Court Sheriff, who shall coordinate with [AAA] as
to the availability of time and date of children for such
visit, at the expense of [BBB]. For every visit, the Court
Sheriff is directed to submit his report within 5 days from
the date [BBB] visited the children;
e. Directing [BBB] to allow [AAA] to continue to have
lawful use and possession of the motor vehicle more
particularly described as follows:
One (1) Hyundai Starex Van
1997 Model
Plate Number: WJP 902
Chassis Number:
Serial Number KMJWH7HPXU158443
f. Granting [AAA] permanent sole custody over their
common children until further orders from this Court;
g. Ordering [BBB] to provide support in the amount of
Php 62,918.97 per month (not Php 81,650.00 being
prayed by [AAA]) to [AAA] as monthly support, inclusive
of educational expenses, groceries, medicines, medical
bills, and insurance premiums, starting from the month of
January 2007 to be given within the first five (5) days of
the month through the Court Sheriff, who shall
coordinate with [AAA] in receiving such support;
h. Requiring [BBB] to stay away from the offended party
and any designated family or household member at a
distance of 100 meters;
i. Requiring [BBB] to stay away from the residence,
school, place of employment or any specified place
frequented regularly by the offended party and children
and any designated family or household member;
j. Ordering [BBB] to post bond of Php 300,000.00 to keep
peace pursuant to Section 23 of RA 9262 with the
undertaking that [BBB] will not commit the violence
sought to be prevented and that in case such violence is
committed[,] he will pay the amount determined by the
Court in its judgment;
k. Ordering [BBB] to pay the sum of Php 100,000.00 (not
Php 200,000.00 being prayed by [AAA]) representing
both reasonable attorney’s fees and cost of litigation,
including cost of suit.
x x x x."5
Ruling of the CA
BBB filed before the CA an appeal6 to challenge the RTC
Decision dated August 14, 2007.1âwphi1 BBB alleged that
the RTC’s (a) issuance of the PPO against him, (b) award
to AAA of the sole custody over their children, (c)
directives for him to pay attorney’s fees and costs of
litigation and to post an excessive amount of bond, and
(d) declaration that he had an abusive character lack
factual bases.
On November 6, 2009, the CA rendered the assailed
decision affirming the factual findings and dispositions of
the RTC, but ordering the remand of the case for the
latter to determine in the proper proceedings who shall
be awarded custody of the children. Like the RTC, the CA
found that under the provisions of Republic Act (R.A.) No.
9262,7 BBB had subjected AAA and their children to
psychological, emotional and economic abuses. BBB
displayed acts of marital infidelity which exposed AAA to
public ridicule causing her emotional and psychological
distress. While BBB alleged that FFF was only a
professional colleague, he continued to have public
158
appearances with her which did not help to dispel AAA’s
accusation that the two had an extra-marital relation.
Further, BBB verbally abused AAA either in person or
through text messages. The CA likewise did not favorably
consider BBB’s claim that he cannot provide financial
support to AAA and the children in the amount required
by the RTC as his income merely depended on
contractual hosting and events management
assignments. The CA emphasized that AAA was in the
position to know the sources of BBB’s income. Citing
Section 288 of R.A. No. 9262 and Article 2139 of the
Family Code, the CA, however, ordered the RTC to
determine who shall be entitled to exercise custody over
the children, who at that time were already older than
seven years of age.
The CA denied BBB’s Motion for Partial
Reconsideration10 by way of the Resolution11 dated
August 3, 2010 which is likewise assailed in the instant
petition.
Issues
Undaunted, BBB now comes before this Court raising the
following issues:
I
WHETHER OR NOT THE [CA]COMMITTED ERROR IN
AFFIRMING THE RTC’S DECISION TO MAKE THE
[TEMPORARY RESTRAINING ORDER (TPO)] PERMANENT.
II
WHETHER OR NOT THE [CA]COMMITTED ERROR IN
AFFIRMING THE RTC’S AWARD OF ATTORNEY’S FEES
AND COST OF LITIGATION IN FAVOR OF [AAA].
III
WHETHER OR NOT THE [CA]COMMITTED ERROR IN
AFFIRMING THE RTC’S ORDER REQUIRING [BBB] TO
POST AN EXCESSIVE AMOUNTOF BOND TO KEEP THE
PEACE.12
IV
WHETHER OR NOT THE CA AND THE RTC CORRECTLY
ADMITTED INTO EVIDENCETHE UNAUTHENTICATED
TEXT MESSAGES ADDUCED BY AAA.13
V
WHETHER OR NOT THE AWARD OF SUPPORT SHOULD
BE DELETED AS THE SPOUSES’ COMMON BIOLOGICAL
CHILDREN, DDD AND EEE, ARE ALREADY UNDER BBB’S
ACTUAL CARE AND CUSTODY SINCE AUGUST 2010
WHEN AAA LEFT TO WORK AS A NURSE IN THE UNITED
STATES.14
In support of the instant petition, BBB merely reiterates
his factual claims in the proceedings below relative to his
financial position and AAA’s supposedly baseless
accusations and demands from him. In addition, he posits
that the text messages offered by AAA as evidence were
unauthenticated; hence, doubt exists as to their
admissibility. Further, he points out that due to the
current whereabouts and circumstances of the parties,
the PPO issued against him is rendered moot. He now
has actual care and custody of DDD and EEE, while CCC,
who is not his biological son, resides in a college
dormitory. BBB and AAA barely get in touch with each
other except when the latter initiates the same.
In her Comment15 to the petition, AAA counters that BBB
erroneously raises factual issues which are subjects
beyond the contemplation of a petition filed under Rule
45 of the Rules of Civil Procedure. Further, BBB
continuously violates the PPO, which under the
provisions of R.A. No. 9262, is supposed to be
immediately executory upon its issuance by the RTC. AAA
claims that BBB still verbally abuses her. BBB has not
posted the 300,000.00 bond required from him. He
likewise has not paid the attorney’s fees and costs of
litigation awarded to AAA. He does not provide support
for CCC, who, in the eyes of the law, is also among his
legitimated children. AAA further alleges that in2010, she
left DDD and EEE under the care of BBB only because the
circumstances then obtaining forced her to do so. Three
years had then lapsed from the time she filed an
application for a protection order and still, no execution
of the PPO ensued. She could not depend for financial
support from BBB. She was thus left with no choice but to
yield custody over DDD and EEE even if the set-up
exposed the children to BBB’s illicit affairs. AAA points
out that since their children are all older than seven years
of age, they are already capable of choosing for
themselves whom they want to exercise custody over
them.
Pending the Court’s deliberation of the instant case, BBB
filed a Manifestation and Motion to Render Judgment
Based on a Memorandum of Agreement (MOA).16 BBB
alleges that on July 29, 2013, he and AAA had entered
into a compromise anent the custody, exercise of
parental authority over, and support of DDD and EEE.17
AAA’s counsel, Atty. Shielah Elbinias-Uyboco (Atty.
Uyboco), filed a Comment to the MOA18 pointing out
159
that AAA signed the MOA while emotionally distressed
and sans the former’s advice and guidance. Atty. Uyboco
likewise emphasizes that BBB’s illicit relationship with FFF
continues in violation of the PPO issued by the RTC.
In BBB’s Reply,19 he counters that AAA should be
presumed to have acted with due care and full
knowledge of the contents of the MOA which she signed.
Further, BBB’s alleged involvement with FFF is an issue
which need not be resolved in a judgment based on
compromise.
Disquisition of the Court
The instant petition is not a proper subject of a
compromise agreement.
The Court cannot take the simplest course of finally
writing finis to the instant petition by rendering a
judgment merely based on compromise as prayed for by
BBB due to reasons discussed below.
Alleging psychological violence and economic abuse,
AAA anchored her application for the issuance of a TPO
and a PPO on the basis of the provisions of R.A. No.
9262. In the instant petition, what is essentially being
assailed is the PPO issued by the RTC and which was
affirmed by the CA. The rules, however, intend that cases
filed under the provisions of R.A. No. 9262 be not
subjects of compromise agreements.
It bears stressing that Section 23(d) of A.M. No. 04-10-
11-SC20 explicitly prohibits compromise on any act
constituting the crime of violence against women. Thus,
in Garcia v. Drilon,21 the Court declared that:
Violence, however, is not a subject for compromise. A
process which involves parties mediating the issue of
violence implies that the victim is somehow at fault. x x
x.22 (Emphasis deleted) AM No. 10-4-16-SC,23 on the
other hand, directs the referral to mediation of all issues
under the Family Code and other laws in relation to
support, custody, visitation, property relations and
guardianship of minor children, excepting therefrom
those covered by R.A. No. 9262.
While AAA filed her application for a TPO and a PPO as
an independent action and not as an incidental relief
prayed for in a criminal suit, the instant petition cannot
be taken outside the ambit of cases falling under the
provisions of R.A. No. 9262. Perforce, the prohibition
against subjecting the instant petition to compromise
applies.
The courts a quo committed no error in issuing a PPO
against BBB.
Anent the main issues raised in the instant petition, the
Court finds no error in the CA’s ruling that the RTC
properly issued a PPO against BBB and that a remanding
of the case to the trial court is necessary to determine
who shall exercise custody over CCC, DDD and EEE.
However, the choices of the children as with whom they
would prefer to stay would alter the effects of the PPO.
Hence, this Court affirms the herein assailed PPO except
items (d), (f), (g), (h) and (i)24 thereof relative to who shall
be granted custody over the three children, how the
spouses shall exercise visitation rights, and the amount
and manner of providing financial support, which are
matters the RTC is now directed to determine with
dispatch.
The Court notes BBB’s manifestation that he and AAA
had arrived at an amicable settlement as regards the
issues of custody, exercise of parental authority over, and
support of DDD and EEE. While these matters can be
lawful subjects of compromise, AAA’s vacillation, as
expressed by her counsel, compels the Court to exercise
prudence by directing the RTC to resolve with finality the
aforesaid issues. The parties are, however, not precluded
from entering into a compromise as regards the
aforesaid issues, but the Court now requires the RTC’s
direct supervision lest the parties muddle the issues anew
and fail to put an end to their bickering.
No grounds exist which compel this Court to resolve the
first three issues raised by BBB since they are merely
factual in character.
In Padalhin v. Laviña,25 the Court declared that:
Primarily, Section 1, Rule 45 of the Rules of Court
categorically states that the petition filed shall raise only
questions of law, which must be distinctly set forth. A
question of law arises when there is doubt as to what the
law is on a certain state of facts, while there is a question
of fact when the doubt arises as to the truth or falsity of
the alleged facts. For a question to be one of law, the
same must not involve an examination of the probative
value of the evidence presented by the litigants or any of
them. The resolution of the issue must rest solely on what
the law provides on the given set of circumstances. Once
it is clear that the issue invites a review of the evidence
presented, the question posed is one of fact.
x x x [T]he substantive issue of whether or not the
petitioners are entitled to moral and exemplary damages
as well as attorney’s fees is a factual issue which is
160
beyond the province of a petition for review on certiorari.
xxx
In the case at bar, the petitioner spouses present to us
issues with an intent to subject to review the uniform
factual findings of the RTC and the CA. Specifically, the
instant petition challenges the existence of clear and
substantial evidence warranting the award of damages
and attorney’s fees in Laviña’s favor. Further, the instant
petition prays for the grant of the Spouses Padalhin’s
counterclaims on the supposed showing that the
complaint filed by Laviña before the RTC was groundless.
It bears stressing that we are not a trier of facts.
Undoubtedly, the questions now raised before us are
factual and not legal in character, hence, beyond the
contemplation of a petition filed under Rule 45 of the
Rules of Civil Procedure.26 (Italics in the original and
emphasis ours)
In BBB’s case, he avers that the RTC and the CA’s (a)
issuance of the PPO, (b) award of attorney’s fees and
costs of litigation in AAA’s favor, and (c) directive for him
to post a bond in the amount of 300,000.00 all lack
factual bases. The first three issues presented
unmistakably call for a re-calibration of evidence. While
the general rule that only legal issues can be resolved in
a petition filed under Rule 45 recognizes
exceptions,27 BBB’s case does not fall in the latter
category. The RTC and the CA are in accord with each
other as to their factual findings, which are supported by
substantial evidence, thus, binding upon this Court.
The doubt raised by BBB anent the admissibility of the
text messages as evidence is not genuinely a legal issue.
In the case of Justice Vidallon-Magtolis v. Salud,28 it is
stated that any question as to the admissibility of text
messages as evidence is rendered moot and academic if
the party raising such issue admits authorship of the
subject messages.29
BBB argues that the RTC and the CA erred in admitting as
evidence the text messages which were sent by him and
FFF to AAA since they were unauthenticated. However,
BBB himself effectively admitted in the pleadings filed
with this Court and the CA that he indeed sent the text
messages attributed to him by AAA. The Appellant’s
Brief30 filed before the CA stated in part that:
[AAA] conveniently chose to leave out the initiatory
messages to which [BBB] replied to. It is totally obvious
that the alleged messages from [BBB] are only messages
that are in response to an ongoing verbal or virtual tussle
and the adamant refusal of [AAA] to bring the children
home despite the entreaties of [BBB]. Be it noted that
[BBB], for the past several months leading up to their
separation, and up to the time that the instant case has
been filed, continuously endured the extreme mood
swings, malicious accusations, haranguing, curses, insults,
and even violence from [AAA].31 (Emphasis and
underscoring in the original and italics ours)
Further, in the instant petition, BBB repleads that:
[I]t is utterly apparent that the alleged messages from
[BBB] are only messages that are in response to an
ongoing verbal or virtual tussle between the parties.32
In the above-quoted portions of the pleadings, BBB
attempted to justify why he sent the messages to AAA.
However, in doing so, he, in effect, admitted authorship
of the messages which AAA adduced as evidence. It is
likewise noted that BBB did not deny ownership of the
cellphone number from which the text messages were
sent.
Hence, while at first glance, it would seem that the issue
of admissibility of the text messages requires an
interpretation of the rules of evidence, this Court does
not find the same to be necessary. While BBB had
admitted authorship of the text messages, he pleads for
this Court to consider those messages as inadmissible for
allegedly being unauthenticated. BBB’s arguments are
unbearably self-contradictory and he cannot be allowed
to take refuge under technical rules of procedure to
assail what is already apparent.
The deletion from the PPO of the directive of the RTC
and the CA relative to the award of support is not
warranted. While CCC is not BBB’s biological son, he was
legitimated under the latter’s name. Like DDD and EEE,
CCC is entitled to receive support from BBB.
BBB claims that DDD and EEE are now under his sole care
and custody, which allegedly renders moot the provision
in the PPO relative to support. BBB points out that CCC is
not his biological son. Impliedly then, BBB justifies why
CCC is not entitled to receive support from him. This
Court is not persuaded.
Article 177 of the Family Code provides that "[o]nly
children conceived and born outside of wedlock of
parents who, at the time of the conception of the former,
were not disqualified by any impediment to marry each
other may be legitimated." Article 178 states that
"[l]egitimation shall take place by a subsequent valid
marriage between parents."
In the case at bar, the parties do not dispute the fact that
BBB is not CCC’s biological father. Such being the case, it
161
was improper to have CCC legitimated after the
celebration of BBB and AAA’s marriage. Clearly then, the
legal process of legitimation was trifled with. BBB
voluntarily but falsely acknowledged CCC as his son.
Article 1431 of the New Civil Code pertinently provides:
Art. 1431. Through estoppel an admission or
representation is rendered conclusive upon the person
making it, and cannot be denied or disproved as against
the person relying thereon.
At least for the purpose of resolving the instant petition,
the principle of estoppel finds application and it now bars
BBB from making an assertion contrary to his previous
representations. He should not be allowed to evade a
responsibility arising from his own misrepresentations.
He is bound by the effects of the legitimation process.
CCC remains to be BBB’s son, and pursuant to Article 179
of the Family Code, the former is entitled to the same
rights as those of a legitimate child, including the receipt
of his father’s support.
Notwithstanding the above, there is no absolute
preclusion for BBB from raising before the proper court
the issue of CCC’s status and filiation. However, BBB
cannot do the same in the instant petition before this
Court now. In Tison v. CA,33 the Court held that "the civil
status [of a child] cannot be attacked collaterally." The
child’s legitimacy "cannot be contested by way of
defense or as a collateral issue in another action for a
different purpose."34 The instant petition sprang out of
AAA’s application for a PPO before the RTC. Hence, BBB’s
claim that CCC is not his biological son is a collateral
issue, which this Court has no authority to resolve now.
All told, the Court finds no merit in BBB’s petition, but
there exists a necessity to remand the case for the RTC to
resolve matters relative to who shall be granted custody
over the three children, how the spouses shall exercise
visitation rights, and the amount and manner of
providing financial support.
The RTC and the CA found substantial evidence and did
not commit reversible errors when they issued the PPO
against BBB. Events, which took place after the issuance
of the PPO, do not erase the fact that psychological,
emotional and economic abuses were committed by BBB
against AAA. Hence, BBB’s claim that he now has actual
sole care of DDD and EEE does not necessarily call for
this Court’s revocation of the PPO and the award to him
of custody over the children.
This Court, thus, affirms the CA’s order to remand the
case for the RTC to resolve the question of custody. Since
the children are now all older than seven years of age,
they can choose for themselves whom they want to stay
with. If all the three children would manifest to the RTC
their choice to stay with AAA, then the PPO issued by
RTC shall continue to be executed in its entirety.
However, if any of the three children would choose to be
under BBB’s care, necessarily, the PPO issued against BBB
relative to them is to be modified. The PPO, in its entirety,
would remain effective only as to AAA and any of the
children who opt to stay with her. Consequently, the RTC
may accordingly alter the manner and amount of
financial support BBB should give depending on who
shall finally be awarded custody over the children.
Pursuant to Articles 201 and 202 of the Family Code,
BBB’s resources and means and the necessities of AAA
and the children are the essential factors in determining
the amount of support, and the same can be reduced or
increased proportionately. The RTC is reminded to be
circumspect in resolving the matter of support, which is a
mutual responsibility of the spouses. The parties do not
dispute that AAA is now employed as well, thus, the RTC
should consider the same with the end in mind of
promoting the best interests of the children.
A final note on the effectivity and violation of a PPO
The Court reminds the parties that the application for the
issuance of a PPO is not a process to be trifled with. It is
only granted after notice and hearing. Once issued,
violation of its provisions shall be punishable with a fine
ranging from Five Thousand Pesos (5,000.00) to Fifty
Thousand Pesos (₱50,000.00) and/or imprisonment of six
(6) months.35
Section 16 of R.A. No. 9262, on the other hand, provides
that "[a] PPO shall be effective until revoked by a court
upon application of the person in whose favor the order
was issued." Pending the resolution of the instant
petition, BBB claims that he and AAA had executed a
MOA, upon which basis a judgment by compromise is
sought to be rendered. Atty. Uyboco, on her part,
pointed out AAA’s vacillation anent the MOA’s execution.
With the foregoing circumstances, the parties, wittingly
or unwittingly, have imposed upon this Court the undue
burden of speculating whether or not AAA’s half-hearted
acquiescence to the MOA is tantamount to an application
for the revocation of the PPO. The Court, however,
refuses to indulge the whims of either parties. The
questions raised in the instant petition for the Court to
dispose of revolve around the propriety of the PPO’s
issuance. The Court resolves that principal query in the
affirmative. The PPO thus stands unless AAA,
categorically and without any equivocation, files an
application for its revocation.
IN VIEW OF THE FOREGOING, the petition is DENIED. The
Decision dated November 6, 2009 and Resolution dated
162
August 3, 2010 of the Court of Appeals in CA-G.R. CV No.
89581 are AFFIRMED. The Permanent Protection Order,
dated August 14, 2007, issued against BBB by the
Regional Trial Court of Pasig City, Branch 162STANDS
except items (d), (f), (g), (h) and (i)36 thereof. The case is
hereby remanded to the trial court for it to accordingly
modify the aforecited items after determining with
dispatch the following:
(1) who between BBB and AAA shall exercise
custody over the three children;
(2) how the parties shall exercise their
respective visitation rights; and
(3) the amount and manner of providing
financial support.
The Reply and Manifestation dated November 10, 2014
and December 4, 2014, respectively, are NOTED.
SO ORDERED.
G.R. No. 170631, February 10, 2016
CARAVAN TRAVEL AND TOURS INTERNATIONAL,
INC., Petitioner, v. ERMILINDA R. ABEJAR, Respondent.
DECISION
LEONEN, J.:
The plaintiff may first prove the employer's ownership of
the vehicle involved in a mishap by presenting the
vehicle's registration in evidence. Thereafter, a disputable
presumption that the requirements for an employer's
liability under Article 21801 of the Civil Code have been
satisfied will arise. The burden of evidence then shifts to
the defendant to show that no liability under Article 2180
has ensued. This case, thus, harmonizes the requirements
of Article 2180, in relation to Article 21762 of the Civil
Code, and the so-called registered-owner rule as
established in this court's rulings in Aguilar, Sr. v.
Commercial Savings Bank,3Del Carmen, Jr. v. Bacoy,4Filcar
Transport Services v. Espinas,5 and Mendoza v. Spouses
Gomez.6
Through this Petition for Review on Certiorari,7 Caravel
Travel and Tours International, Inc. (Caravan) prays that
the Decision8 dated October 3, 2005 and the
Resolution9 dated November 29, 2005 of the Court of
Appeals Twelfth Division be reversed and set aside.10
On July 13, 2000, Jesmariane R. Reyes (Reyes) was
walking along the west-bound lane of Sampaguita Street,
United Parañaque Subdivision IV, Parañaque City.11 A
Mitsubishi L-300 van with plate number PKM 19512 was
travelling along the east-bound lane, opposite
Reyes.13 To avoid an incoming vehicle, the van swerved to
its left and hit Reyes.14 Alex Espinosa (Espinosa), a witness
to the accident, went to her aid and loaded her in the
back of the van.15 Espinosa told the driver of the van,
Jimmy Bautista (Bautista), to bring Reyes to the
hospital.16 Instead of doing so, Bautista appeared to have
left the van parked inside a nearby subdivision with Reyes
still in the van.17 Fortunately for Reyes, an unidentified
civilian came to help and drove Reyes to the hospital.18
Upon investigation, it was found that the registered
owner of the van was Caravan.19 Caravan is a corporation
engaged in the business of organizing travels and
tours.20 Bautista was Caravan's employee assigned to
drive the van as its service driver.21
Caravan shouldered the hospitalization expenses of
Reyes.22 Despite medical attendance, Reyes died two (2)
days after the accident.23
Respondent Ermilinda R. Abejar (Abejar), Reyes' paternal
aunt and the person who raised her since she was nine
(9) years old,24 filed before the Regional Trial Court of
Parañaque a Complaint25 for damages against Bautista
and Caravan. In her Complaint, Abejar alleged that
Bautista was an employee of Caravan and that Caravan is
the registered owner of the van that hit Reyes.26
Summons could not be served on Bautista.27 Thus, Abejar
moved to drop Bautista as a defendant.28 The Regional
Trial Court granted her Motion.29
After trial, the Regional Trial Court found that Bautista
was grossly negligent in driving the vehicle.30 It awarded
damages in favor of Abejar, as follows:
chanRoblesvirtualLawlibrary
WHEREFORE, considering that the [respondent] was able
to provide by preponderance of evidence her cause of
action against the defendants, judgment is hereby
rendered ordering defendants JIMMY BAUTISTA and
CARAVAN TRAVEL and TOURS[,] INC., to jointly and
solidarity pay the plaintiff, the following, to wit:
chanRoblesvirtualLawlibrary
1. The amount of P35,000.00 representing actual
damages;
2. The amount of P300,000.00 as moral damages;
3. The amount of P30,000.00 as exemplary damages;
4. The amount of P50,000.00 as and by way of attorney's
fees; and
163

5. The cost of suit.
SO ORDERED.31ChanRoblesVirtualawlibrary
Caravan's Motion for Reconsideration32 was denied
through the October 20, 2003 Order33 of the Regional
Trial Court.
The Court of Appeals affirmed with modification the
Regional Trial Court's July 31, 2003 Decision and October
20, 2003 Order, as follows:
chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, the instant appeal
is DENIED for lack of merit. The assailed Decision dated
31 July 2003 and Order dated 20 October 2003 of the
Regional Trial Court, City of Para[ñ]aque, Branch 258, in
Civil Case No. 00-0447 are AFFIRMED with the
following MODIFICATIONS:
1. Moral Damages is REDUCED to Php 200,000.00;
2. Death Indemnity of Php 50,000.00 is awarded;
3. The Php 35,000.00 actual damages, Php
200,000.00 moral damages, Php 30,000.00
exemplary damages and Php 50,000.00
attorney's fees shall earn interest at the rate of
6% per annum computed from 31 July 2003,
the date of the [Regional Trial Court's] decision;
and upon finality of this Decision, all the
amounts due shall earn interest at the rate of
12% per annum, in lieu of 6% per annum, until
full payment; and
4. The Php 50,000.00 death indemnity shall earn
interest at the rate of 6% per annum computed
from the date of promulgation of this Decision;
and upon finality of this Decision, the amount
due shall earn interest at the rate of 12% per
annum, in lieu of 6% per annum, until full
payment.
Costs against [Caravan].
SO ORDERED.34ChanRoblesVirtualawlibrary
Caravan filed a Motion for Reconsideration, but it was
denied in the Court of Appeals' assailed November 29,
2005 Resolution.35
Hence, this Petition was filed.
Caravan argues that Abejar has no personality to bring
this suit because she is not a real party in interest.
According to Caravan, Abejar does not exercise legal or
substitute parental authority. She is also not the judicially
appointed guardian or the only living relative of the
deceased.36 She is also not "the executor or administrator
of the estate of the deceased."37 According to Caravan,
only the victim herself or her heirs can enforce an action
based on culpa aquiliana such as Abejar's action for
damages.38
Caravan adds that Abejar offered no documentary or
testimonial evidence to prove that Bautista, the driver,
acted "within the scope of his assigned tasks"39 when the
accident occurred.40 According to Caravan, Bautista's
tasks only pertained to the transport of company
personnel or products, and when the accident occurred,
he had not been transporting personnel or delivering
products of and for the company.41
Caravan also argues that "it exercised the diligence of a
good father of a family in the selection and supervision
of its employees."42
Caravan further claims that Abejar should not have been
awarded moral damages, actual damages, death
indemnity, exemplary damages, and attorney's fees.43 It
questions the Certificate provided by Abejar as proof of
expenses since its signatory, a certain Julian Peñaloza
(Peñaloza), was not presented in court, and Caravan was
denied the right to cross-examine him.44 Caravan argues
that the statements in the Certification constitute
hearsay.45 It also contends that based on Article
2206(3)46 of the Civil Code, Abejar is not entitled to moral
damages.47 It insists that moral and exemplary damages
should not have been awarded to Abejar because
Caravan acted in good faith.48 Considering that moral
and exemplary damages are unwarranted, Caravan claims
that the award of attorney's fees should have also been
removed.49
Lastly, Caravan argues that it should not be held solidarily
liable with Bautista since Bautista was already dropped as
a party.50
Abejar counters that Caravan failed to provide proof that
it exercised the requisite diligence in the selection and
supervision of Bautista.51 She adds that the Court of
Appeals' ruling that Caravan is solidarily liable with
Bautista for moral damages, exemplary damages, civil
indemnity ex delicto, and attorney's fees should be
upheld.52 Abejar argues that since Caravan is the
registered owner of the van, it is directly, primarily, and
solidarity liable for the tortious acts of its driver.53
For resolution are the following issues:
First, whether respondent Ermilinda R. Abejar is a real
party in interest who may bring an action for damages
against petitioner Caravan Travel and Tours International,
Inc. on account of Jesmariane R. Reyes' death; and
Second, whether petitioner should be held liable as an
164
employer, pursuant to Article 2180 of the Civil Code. Article 233 of the Family Code provides for the extent of
authority of persons exercising substitute parental
We deny the Petition. authority, that is, the same as those of actual parents:
chanRoblesvirtualLawlibrary
I Art. 233. The person exercising substitute parental
authority shall have the same authority over the person
Having exercised substitute parental authority, of the child as the parents. (Emphasis supplied)
respondent suffered actual loss and is, thus, a real party Both of Reyes' parents are already deceased.57 Reyes'
in interest in this case. paternal grandparents are also both deceased.58 The
whereabouts of Reyes' maternal grandparents are
In her Complaint, respondent made allegations that unknown.59 There is also no record that Reyes has
would sustain her action for damages: that she exercised brothers or sisters. It was under these circumstances that
substitute parental authority over Reyes; that Reyes' respondent took custody of Reyes when she was a child,
death was caused by the negligence of petitioner and its assumed the role of Reyes' parents, and thus, exercised
driver; and that Reyes' death caused her substitute parental authority over her.60 As Reyes'
damage.54 Respondent properly filed an action based on custodian, respondent exercised the full extent of the
quasi-delict. She is a real party in interest. statutorily recognized rights and duties of a parent.
Consistent with Article 22061 of the Family Code,
Rule 3, Section 2 of the 1997 Rules of Civil Procedure respondent supported Reyes' education62 and provided
defines a real party in interest: for her personal needs.63 To echo respondent's words in
chanRoblesvirtualLawlibrary her Complaint, she treated Reyes as if she were her own
RULE 3. Parties to Civil Actions daughter.64

. . . . Respondent's right to proceed against petitioner,

SECTION 2. Parties in Interest. — A real party in interest is
the party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of
the suit. Unless otherwise authorized by law or these
Rules, every action must be prosecuted or defended in
the name of the real party in interest.
"To qualify a person to be a real party in interest in
whose name an action must be prosecuted, he [or she]
must appear to be the present real owner of the right
sought to be enforced."55 Respondent's capacity to file a
complaint against petitioner stems from her having
exercised substitute parental authority over Reyes.
Article 216 of the Family Code identifies the persons who
exercise substitute parental authority:
chanRoblesvirtualLawlibrary
Art. 216. In default of parents or a judicially appointed
guardian, the following persons shall exercise substitute
parental authority over the child in the order indicated:
(1) The surviving grandparent, as provided in Art. 214;56
(2) The oldest brother or sister, over twenty-one years of
age, unless unfit or disqualified; and
(3) The child's actual custodian, over twenty-one years of
age, unless unfit or disqualified.
Whenever the appointment or a judicial guardian over
the property of the child becomes necessary, the same
order of preference shall be observed. (Emphasis
supplied)
therefore, is based on two grounds.
First, respondent suffered actual personal loss. With her
affinity for Reyes, it stands to reason that when Reyes
died, respondent suffered the same anguish that a
natural parent would have felt upon the loss of one's
child. It is for this injury — as authentic and personal as
that of a natural parent — that respondent seeks to be
indemnified.
Second, respondent is capacitated to do what Reyes'
actual parents would have been capacitated to do.
In Metro Manila Transit Corporation v. Court of
Appeals,65Tapdasan, Jr. v. People,66 and Aguilar, Sr. v.
Commercial Savings Bank,67 this court allowed natural
parents of victims to recover damages for the death of
their children. Inasmuch as persons exercising substitute
parental authority have the full range of competencies of
a child's actual parents, nothing prevents persons
exercising substitute parental authority from similarly
possessing the right to be indemnified for their ward's
death.
We note that Reyes was already 18 years old when she
died. Having reached the age of majority, she was already
emancipated upon her death. While parental authority is
terminated upon emancipation,68 respondent continued
to support and care for Reyes even after she turned
18.69 Except for the legal technicality of Reyes'
emancipation, her relationship with respondent remained
the same. The anguish and damage caused to
respondent by Reyes' death was no different because of

165
Reyes' emancipation.
In any case, the termination of respondent's parental
authority is not an insurmountable legal bar that
precludes the filing of her Complaint. In interpreting
Article 190270 of the old Civil Code, which is substantially
similar to the first sentence of Article 217671 of the Civil
Code, this court in The Receiver For North Negros Sugar
Company, Inc. v. Ybañez, et al.72 ruled that brothers and
sisters may recover damages, except moral damages, for
the death of their sibling.73 This court declared that
Article 1902 of the old Civil Code (now Article 2176) is
broad enough to accommodate even plaintiffs who are
not relatives of the deceased, thus:74
This Court said: "Article 1902 of the Civil Code declares
that any person who by an act or omission, characterized
by fault or negligence, causes damage to another shall
be liable for the damage done ... a person is liable for
damage done to another by any culpable act; and by any
culpable act is meant any act which is blameworthy when
judged by accepted legal standards. The idea thus
expressed is undoubtedly broad enough to include any
rational conception of liability for the tortious acts likely
to be developed in any society." The word "damage" in
said article, comprehending as it does all that are
embraced in its meaning, includes any and all damages
that a human being may suffer in any and all the
manifestations of his life: physical or material, moral or
psychological, mental or spiritual, financial, economic,
social, political, and religious.
ARTICLE 2180. The obligation imposed by article 2176 is
demandable not only for one's own acts or omissions,
but also for those of persons for whom one is
responsible.
The father and, in case of his death or incapacity, the
mother, are responsible for the damages caused by the
minor children who live in their company.
Guardians are liable for damages caused by the minors
or incapacitated persons who are under their authority
and live in their company.
The owners and managers of an establishment or
enterprise are likewise responsible for damages caused
by their employees in the service of the branches in
which the latter are employed or on the occasion of their
functions.
Employers shall be liable for the damages caused by their
employees and household helpers acting within the
scope of their assigned tasks, even though the former are
not engaged in any business or industry.
The State is responsible in like manner when it acts
through a special agent; but not when the damage has
been caused by the official to whom the task done
properly pertains, in which case what is provided in
article 2176 shall be applicable.

It is particularly noticeable that Article 1902 stresses the
passive subject of the obligation to pay damages caused
by his fault or negligence. The article does not limit or
specify the active subjects, much less the relation that
must exist between the victim of the culpa aquiliana and
the person who may recover damages, thus warranting
the inference that, in principle, anybody who suffers any
damage from culpa aquiliana, whether a relative or not of
the victim, may recover damages from the person
responsible therefor[.]75 (Emphasis supplied, citations
omitted)
II
Respondent's Complaint is anchored on an employer's
liability for quasi-delict provided in Article 2180, in
relation to Article 2176 of the Civil Code. Articles 2176
and 2180 read:
chanRoblesvirtualLawlibrary
ARTICLE 2176. Whoever by act or omission causes
damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is
governed by the provisions of this Chapter.
. . . .
Lastly, teachers or heads of establishments of arts and
trades shall be liable for damages caused by their pupils
and students or apprentices, so long as they remain in
their custody.
The responsibility treated of in this article shall cease
when the persons herein mentioned prove that they
observed all the diligence of a good father of a family to
prevent damage. (Emphasis supplied)
Contrary to petitioner's position, it was not fatal to
respondent's cause that she herself did not adduce proof
that Bautista acted within the scope of his authority. It
was sufficient that Abejar proved that petitioner was the
registered owner of the van that hit Reyes.
The resolution of this case must consider two (2) rules.
First, Article 2180's specification that "[e]mployers shall
be liable for the damages caused by their employees . .
. acting within the scope of their assigned tasks[.]"
Second, the operation of the registered-owner rule that
registered owners are liable for death or injuries caused
by the operation of their vehicles.76
These rules appear to be in conflict when it comes to
cases in which the employer is also the registered owner
. of a vehicle. Article 2180 requires proof of two things:

166
first, an employment relationship between the driver and
the owner; and second, that the driver acted within the
scope of his or her assigned tasks. On the other hand,
applying the registered-owner rule only requires the
plaintiff to prove that the defendant-employer is the
registered owner of the vehicle.
The registered-owner rule was articulated as early as
1957 in Erezo, et al. v. Jepte,77 where this court explained
that the registration of motor vehicles, as required by
Section 5(a)78 of Republic Act No. 4136, the Land
Transportation and Traffic Code, was necessary "not to
make said registration the operative act by which
ownership in vehicles is transferred, . . . but to permit the
use and operation of the vehicle upon any public
highway[.]"79 Its "main aim . . . is to identify the owner so
that if any accident happens, or that any damage or
injury is caused by the vehicle on the public highways,
responsibility therefor can be fixed on a definite
individual, the registered owner."80
Erezo notwithstanding, Castilex Industrial Corporation v.
Vasquez, Jr.81 relied on Article 2180 of the Civil Code even
though the employer was also the registered owner of
the vehicle.82 The registered-owner rule was not
mentioned.
In Castilex, Benjamin Abad (Abad) was a manager of
Castilex Industrial Corporation (Castilex). Castilex was also
the registered owner of a Toyota Hi-Lux pick-up truck.
While Abad was driving the pick-up truck, it collided with
a motorcycle driven by Romeo Vasquez (Vasquez).
Vasquez died a few days after. Vasquez's parents filed a
case for damages against Abad and Castilex.83 Castilex
denied liability, arguing that Abad was acting in his
private capacity at the time of the accident.84
This court absolved Castilex of liability, reasoning that it
was incumbent upon the plaintiff to prove that the
negligent employee was acting within the scope of his
assigned tasks.85 Vasquez's parents failed to prove
this.86 This court outlined the process necessary for an
employer to be held liable for the acts of its employees
and applied the process to the case:
chanRoblesvirtualLawlibrary
Under the fifth paragraph of Article 2180, whether or not
engaged in any business or industry, an employer is
liable for the torts committed by employees within the
scope of his assigned tasks. But it is necessary to
establish the employer-employee relationship; once this
is done, the plaintiff must show, to hold the employer
liable, that the employee was acting within the scope of
his assigned task when the tort complained of was
committed. It is only then that the employer may find it
necessary to interpose the defense of due diligence in
the selection and supervision of the employee.
. . . .
Since there is paucity of evidence that ABAD was acting
within the scope of the functions entrusted to him,
petitioner CASTILEX had no duty to show that it exercised
the diligence of a good father of a family in providing
ABAD with a service vehicle. Thus, justice and equity
require that petitioner be relieved of vicarious liability for
the consequences of the negligence of ABAD in driving
its vehicle. (Emphasis supplied, citations
omitted)87ChanRoblesVirtualawlibrary
Aguilar, Sr. v. Commercial Savings Bank recognized the
seeming conflict between Article 2180 and the
registered-owner rule and applied the latter.88
In Aguilar, Sr., a Mitsubishi Lancer, registered in the name
of Commercial Savings Bank and driven by the bank's
assistant vice-president Ferdinand Borja, hit Conrado
Aguilar, Jr. The impact killed Conrado Aguilar, Jr. His
father, Conrado Aguilar, Sr. filed a case for damages
against Ferdinand Borja and Commercial Savings Bank.
The Regional Trial Court found Commercial Savings Bank
solidarity liable with Ferdinand Borja.89
However, the Court of Appeals disagreed with the trial
court's Decision and dismissed the complaint against the
bank. The Court of Appeals reasoned that Article 2180
requires the plaintiff to prove that at the time of the
accident, the employee was acting within the scope of his
or her assigned tasks. The Court of Appeals found no
evidence that Ferdinand Borja was acting as the bank's
assistant vice-president at the time of the accident.90
The Court of Appeals' ruling was reversed by this
court.91Aguilar, Sr. reiterated the following
pronouncements made in Erezo in ruling that the
bank, as the registered owner of the vehicle, was
primarily liable to the plaintiff:92
The main aim of motor vehicle registration is to identify
the owner so that if any accident happens, or that any
damage or injury is caused by the vehicle on the public
highways, responsibility therefor can be fixed on a
definite individual, the registered owner....
....
A victim of recklessness on the public highways is usually
without means to discover or identify the person actually
causing the injury or damage. He has no means other
than by a recourse to the registration in the Motor
Vehicles Office to determine who is the owner. The
protection that the law aims to extend to him would
become illusory were the registered owner given the
opportunity to escape liability by disproving his
ownership.93ChanRoblesVirtualawlibrary
Thus, Aguilar, Sr. concluded:
chanRoblesvirtualLawlibrary
167
In our view, respondent bank, as the registered owner of
the vehicle, is primarily liable for Aguilar, Jr.'s death. The
Court of Appeals erred when it concluded that the bank
was not liable simply because (a) petitioner did not prove
that Borja was acting as the bank's vice president at the
time of the accident; and (b) Borja had, according to
respondent bank, already bought the car at the time of
the mishap. For as long as the respondent bank remained
the registered owner of the car involved in the vehicular
accident, it could not escape primary liability for the
death of petitioner's son.94 (Emphasis supplied)
Preference for the registered-owner rule became more
pronounced in Del Carmen, Jr. v. Bacoy:95
Without disputing the factual finding of the [Court of
Appeals] that Allan was still his employee at the time of
the accident, a finding which we see no reason to disturb,
Oscar Jr. contends that Allan drove the jeep in his private
capacity and thus, an employer's vicarious liability for the
employee's fault under Article 2180 of the Civil Code
cannot apply to him.
The contention is no longer novel. In Aguilar Sr. v.
Commercial Savings Bank, the car of therein respondent
bank caused the death of Conrado Aguilar, Jr. while
being driven by its assistant vice president. Despite
Article 2180, we still held the bank liable for damages for
the accident as said provision should defer to the settled
doctrine concerning accidents involving registered motor
vehicles, i.e., 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. We have already ratiocinated
that:
chanRoblesvirtualLawlibrary
The main aim of motor vehicle registration is to identify
the owner so that if any accident happens, or that any
damage or injury is caused by the vehicle on the public
highways, responsibility therefor can be fixed on a
definite individual, the registered owner. Instances are
numerous where vehicles running on public highways
caused accidents or injuries to pedestrians or other
vehicles without positive identification of the owner or
drivers, or with very scant means of identification. It is to
forestall these circumstances, so inconvenient or
prejudicial to the public, that the motor vehicle
registration is primarily ordained, in the interest of the
determination of persons responsible for damages or
injuries caused on public highways.96 (Emphasis supplied,
citations omitted)
Filcar Transport Services v. Espinas97 stated that the
registered owner of a vehicle can no longer use the
defenses found in Article 2180:98
Neither can Filcar use the defenses available under Article
2180 of the Civil Code - that the employee acts beyond
the scope of his assigned task or that it exercised the due
diligence of a good father of a family to prevent damage
- because the motor vehicle registration law, to a certain
extent, modified Article 2180 of the Civil Code by making
these defenses unavailable to the registered owner of the
motor vehicle. Thus, for as long as Filcar is the registered
owner of the car involved in the vehicular accident, it
could not escape primary liability for the damages
caused to Espinas.99ChanRoblesVirtualawlibrary
Mendoza v. Spouses Gomez100 reiterated this doctrine.
However, Aguilar, Sr., Del Carmen, Filcar,
and Mendoza should not be taken to mean that Article
2180 of the Civil Code should be completely discarded in
cases where the registered-owner rule finds application.
As acknowledged in Filcar, there is no categorical
statutory pronouncement in the Land Transportation and
Traffic Code stipulating the liability of a registered
owner.101 The source of a registered owner's liability is
not a distinct statutory provision, but remains to be
Articles 2176 and 2180 of the Civil Code:
chanRoblesvirtualLawlibrary
While Republic Act No. 4136 or the Land Transportation
and Traffic Code does not contain any provision on the
liability of registered owners in case of motor vehicle
mishaps, Article 2176, in relation with Article 2180, of the
Civil Code imposes an obligation upon Filcar, as
registered owner, to answer for the damages caused to
Espinas' car.102ChanRoblesVirtualawlibrary
Thus, it is imperative to apply the registered-owner rule
in a manner that harmonizes it with Articles 2176 and
2180 of the Civil Code. Rules must be construed in a
manner that will harmonize them with other rules so as
to form a uniform and consistent system of
jurisprudence.103 In light of this, the words used in Del
Carmen are particularly notable. There, this court stated
that Article 2180 "should defer to"104 the registered-
owner rule. It never stated that Article 2180 should be
totally abandoned.
Therefore, the appropriate approach is that in cases
where both the registered-owner rule and Article 2180
apply, the plaintiff must first establish that the employer
is the registered owner of the vehicle in question. Once
the plaintiff successfully proves ownership, there arises a
disputable presumption that the requirements of Article
2180 have been proven. As a consequence, the burden of
proof shifts to the defendant to show that no liability
under Article 2180 has arisen.
This disputable presumption, insofar as the registered
owner of the vehicle in relation to the actual driver is
concerned, recognizes that between the owner and the
victim, it is the former that should carry the costs of
moving forward with the evidence. The victim is, in many
cases, a hapless pedestrian or motorist with hardly any
means to uncover the employment relationship of the
owner and the driver, or any act that the owner may have
168
done in relation to that employment. On the third, petitioner likewise failed to prove that it
exercised the requisite diligence in the selection and
The registration of the vehicle, on the other hand, is supervision of Bautista.
accessible to the public.
In its selection of Bautista as a service driver, petitioner
Here, respondent presented a copy of the Certificate of contented itself with Bautista's submission of a non-
Registration105 of the van that hit Reyes.106 The Certificate professional driver's license.112 Hence, in Sally Balledo's
attests to petitioner's ownership of the van. Petitioner cross-examination:
itself did not dispute its ownership of the van. Consistent chanRoblesvirtualLawlibrary
with the rule we have just stated, a presumption that the
requirements of Article 2180 have been satisfied arises. It Q : . . . when he was promoted as service driver,
is now up to petitioner to establish that it incurred no of course, there were certain requirements
liability under Article 2180. This it can do by presenting and among other else, you made mention
proof of any of the following: first, that it had no about a driver's license.
employment relationship with Bautista; second, that
Bautista acted outside the scope of his assigned tasks; or
third, that it exercised the diligence of a good father of a A : Yes, Sir.
family in the selection and supervision of Bautista.107

Q : Would you be able to show to this

On the first, petitioner admitted that Bautista was its
employee at the time of the accident.108 Honorable Court whether indeed this
person did submit a driver's license to your
company?
On the second, petitioner was unable to prove that
Bautista was not acting within the scope of his assigned
tasks at the time of the accident. When asked by the
A : Yes, Sir.
court why Bautista was at the place of the accident when
it occurred, Sally Bellido, petitioner's accountant and
supervisor,109 testified that she did not "have the personal
....
capacity to answer [the question]"110 and that she had no
knowledge to answer it:
chanRoblesvirtualLawlibrary
Q : Do you recall what kind of driver's license is
COURT : Madam Witness, do you know the reason this?
why your driver, Jimmy Bautista, at
around 10:00 o' clock in the morning of
July 13, 2000 was in the vicinity of A : The Land Transportation Office.
Barangay Marcelo Green, United
Parañaque Subdivision 4?
Q : Is it a professional driver's license or non-
proffesional [sic] driver's license?
WITNESS : I don't have the personal capacity to
answer that, Sir.
A : Non-professional.

Q : So you don't have any knowledge why he

was there? Q : You are not sure?

A : Yes, Sir.111 (Emphasis supplied) COURT : Non professional, professional?

Sally Bellido's testimony does not affect the presumption

that Article 2180's requirements have been satisfied. A : It's a non-professional.113 (Emphasis
Mere disavowals are not proof that suffice to overturn a supplied)
presumption. To this end, evidence must be adduced.
However, petitioner presented no positive evidence to Employing a person holding a non-professional driver's
show that Bautista was acting in his private capacity at license to operate another's motor vehicle violates
the time of the incident. Section 24 of the Land Transportation and Traffic Code,

169
which provides:
chanRoblesvirtualLawlibrary
SEC. 24. Use of driver's license and badge. — ...
. . . .
No owner of a motor vehicle shall engage, employ, or
hire any person to operate such motor vehicle, unless the
person sought to be employed is a duly licensed
professional driver.
Evidently, petitioner did not only fail to exercise due
diligence when it selected Bautista as service driver; it
also committed an actual violation of law.
To prove that it exercised the required diligence in
supervising Bautista, petitioner presented copies of
several memoranda and company rules.114 These,
however, are insufficient because petitioner failed to
prove actual compliance. Metro Manila Transit
Corporation v. Court of Appeals115 emphasized that to
establish diligence in the supervision of employees, the
issuance of company policies must be coupled with proof
of compliance:
chanRoblesvirtualLawlibrary
Due diligence in the supervision of employees, on the
other hand, includes the formulation of suitable rules and
regulations for the guidance of employees and the
issuance of proper instructions intended for the
protection of the public and persons with whom the
employer has relations through his or its employees and
the imposition of necessary disciplinary measures upon
employees in case of breach or as may be warranted to
ensure the performance of acts indispensable to the
business of and beneficial to their employer. To this, we
add that actual implementation and monitoring
of consistent compliance with said rules should be the
constant concern of the employer, acting through
dependable supervisors who should regularly report on
their supervisory functions.
In order that the defense of due diligence in the selection
and supervision of employees may be deemed sufficient
and plausible, it is not enough to emptily invoke the
existence of said company guidelines and policies on
hiring and supervision. As the negligence of the employee
gives rise to the presumption of negligence on the part
of the employer, the latter has the burden of proving that
it has been diligent not only in the selection of
employees but also in the actual supervision of their
work. The mere allegation of the existence of hiring
procedures and supervisory policies, without anything
more, is decidedly not sufficient to overcome
presumption.
We emphatically reiterate our holding, as a warning to all
employers, that "(t)he mere formulation of various
company policies on safety without showing that they
were being complied with is not sufficient to exempt
petitioner from liability arising from negligence of its
employees. It is incumbent upon petitioner to show that
in recruiting and employing the erring driver the
recruitment procedures and company policies on
efficiency and safety were followed." Paying lip-service to
these injunctions or merely going through the motions of
compliance therewith will warrant stern sanctions from
the Court.116 (Emphasis supplied, citations omitted)
For failing to overturn the presumption that the
requirements of Article 2180 have been satisfied,
petitioner must be held liable.
III
Petitioner's argument that it should be excused from
liability because Bautista was already dropped as a party
is equally unmeritorious. The liability imposed on the
registered owner is direct and primary.117 It does not
depend on the inclusion of the negligent driver in the
action. Agreeing to petitioner's assertion would render
impotent the rationale of the motor registration law in
fixing liability on a definite person.
Bautista, the driver, was not an indispensable party under
Rule 3, Section 7118 of the 1997 Rules of Civil Procedure.
Rather, he was a necessary party under Rule 3, Section
8.119 Instead of insisting that Bautista — who was nothing
more than a necessary party — should not have been
dropped as a defendant, or that petitioner, along with
Bautista, should have been dropped, petitioner (as a co-
defendant insisting that the action must proceed with
Bautista as party) could have opted to file a cross-claim
against Bautista as its remedy.
The 1997 Rules of Civil Procedure spell out the rules on
joinder of indispensable and necessary parties. These are
intended to afford "a complete determination of all
possible issues, not only between the parties themselves
but also as regards to other persons who may be affected
by the judgment."120
However, while an exhaustive resolution of disputes is
desired in every case, the distinction between
indispensable parties and necessary parties delineates a
court's capacity to render effective judgment. As defined
by Rule 3, Section 7, indispensable parties are "[p]arties in
interest without whom no final determination can be had
of an action[.]" Thus, their non-inclusion is debilitating:
"the presence of indispensable parties is a condition for
the exercise of juridical power and when an indispensable
party is not before the court, the action should be
dismissed."121
In contrast, a necessary party's presence is not
imperative, and his or her absence is not debilitating.
Nevertheless, it is preferred that they be included in
170
order that relief may be complete.
The concept of indispensable parties, as against parties
whose inclusion only allows complete relief, was
explained in Arcelona v. Court of Appeals:122
An indispensable party is a party who has such an
interest in the controversy or subject matter that a final
adjudication cannot be made, in his absence, without
injuring or affecting that interest, a party who has not
only an interest in the subject matter of the controversy,
but also has an interest of such nature that a final decree
cannot be made without affecting his interest or leaving
the controversy in such a condition that its final
determination may be wholly inconsistent with equity
and good conscience. It has also been considered that an
indispensable party is a person in whose absence there
cannot be a determination between the parties already
before the court which is effective, complete, or
equitable. Further, an indispensable party is one who
must be included in an action before it may properly go
forward.
Contrary to petitioner's claim, this Certificate is not
hearsay. Evidence is hearsay when its probative value is
based on the personal knowledge of a person other than
the person actually testifying.125 Here, the Certificate
sought to establish that respondent herself paid Peñaloza
P35,000.00 as funeral expenses for Reyes' death:126
3. Na ang aking kontrata ay nagkakahalaga ng
P35,000-00 [sic] sa lahat ng nagamit na
materiales at labor nito kasama ang lote na
ibinayad sa akin ni Gng. ERMILINDA REYES
ABEJAR na siyang aking kakontrata sa
pagsasagawa ng naturang
paglilibingan.127 (Emphasis supplied)
It was respondent herself who identified the Certificate.
She testified that she incurred funeral expenses
amounting to P35,000.00, that she paid this amount to
Peñaloza, and that she was present when Peñaloza
signed the Certificate:
chanRoblesvirtualLawlibrary

A person is not an indispensable party, however, if his [ATTY. Did you incur any expenses?
interest in the controversy or subject matter is separable LIM] :
from the interest of the other parties, so that it will not
necessarily be directly or injuriously affected by a decree
which does complete justice between them. Also, a A: Meron po.
person is not an indispensable party if his presence
would merely permit complete relief between him and
those already parties to the action, or if he has no Q: How much did you spend for the death of
interest in the subject matter of the action. It is not a Jesmarian [sic] Reyes?
sufficient reason to declare a person to be an
indispensable party that his presence will avoid multiple
litigation.123ChanRoblesVirtualawlibrary A: 'Yun pong P35,000.00 na pagpapalibing at
Petitioner's interest and liability is distinct from that of its saka...
driver. Regardless of petitioner's employer-employee
relationship with Bautista, liability attaches to petitioner
on account of its being the registered owner of a vehicle Q: You said that you spent P35,000.00. Do you
that figures in a mishap. This alone suffices. A have any evidence or proof that you spent
determination of its liability as owner can proceed that amount?
independently of a consideration of how Bautista
conducted himself as a driver. While certainly it is
desirable that a determination of Bautista's liability be A: Meron po.
made alongside that of the owner of the van he was
driving, his non-inclusion in these proceedings does not
absolutely hamper a judicious resolution of respondent's Q: Showing to you this sort of certification. What
plea for relief. relation has this...

IV
A: 'Yan po' yung contractor nagumawa.
The Court of Appeals committed no reversible error when
it awarded actual damages to respondent. Respondent's
claim for actual damages was based on the Q: Contractor of what?
Certificate124 issued and signed by a certain Peñaloza
showing that respondent paid Peñaloza P35,000.00 for
funeral expenses. A: 'Yan po' yung mismong binilhan ko ng lupa at

171

nitso.
....
ATTY. There is a signature at the top of the printed
LIM : name Julian Penalosa [sic]. Whose signature is
this?
A: 'Yan po' yung mismong contractor.
....
Q: Did you see him sign this?
A: Opo.128 (Emphasis supplied)
Respondent had personal knowledge of the facts sought
to be proved by the Certificate, i.e. that she spent
P35,000.00 for the funeral expenses of Reyes. Thus, the
Certificate that she identified and testified to is not
hearsay. It was not an error to admit this Certificate as
evidence and basis for awarding P35,000.00 as actual
damages to respondent.
The Court of Appeals likewise did not err in awarding civil
indemnity and exemplary damages.
Article 2206 of the Civil Code provides:
chanRoblesvirtualLawlibrary
ARTICLE 2206. The amount of damages for death caused
by a crime or quasi-delict shall be at least three thousand
pesos, even though there may have been mitigating
circumstances[.]
Further, Article 2231 of the Civil Code provides:
chanRoblesvirtualLawlibrary
ARTICLE 2231. In quasi-delicts, exemplary damages may
be granted if the defendant acted with gross negligence.
Both the Court of Appeals and the Regional Trial Court
found Bautista grossly negligent in driving the van and
concluded that Bautista's gross negligence was the
proximate cause of Reyes' death. Negligence and
causation are factual issues.129 Findings of fact, when
established by the trial court and affirmed by the Court of
Appeals, are binding on this court unless they are
patently unsupported by evidence or unless the
judgment is grounded on a misapprehension of
facts.130 Considering that petitioner has not presented
any evidence disputing the findings of the lower courts
regarding Bautista's negligence, these findings cannot be
disturbed in this appeal. The evidentiary bases for the
award of civil indemnity and exemplary damages stand.
As such, petitioner must pay the exemplary damages
arising from the negligence of its driver.131 For the same
reasons, the award of P50,000.00 by way of civil
indemnity is justified.132
The award of moral damages is likewise proper.
Article 2206(3) of the Civil Code provides:
chanRoblesvirtualLawlibrary
ARTICLE 2206. The amount of damages for death caused
by a crime or quasi-delict shall be at least three thousand
pesos, even though there may have been mitigating
circumstances. In addition:
. . . .
(3) The spouse, legitimate and illegitimate descendants
and ascendants of the deceased may demand
moral damages for mental anguish by reason of the
death of the deceased. (Emphasis supplied)
For deaths caused by quasi-delict, the recovery of moral
damages is limited to the spouse, legitimate and
illegitimate descendants, and ascendants of the
deceased.133
Persons exercising substitute parental authority are to be
considered ascendants for the purpose of awarding
moral damages. Persons exercising substitute parental
authority are intended to stand in place of a child's
parents in order to ensure the well-being and welfare of
a child.134 Like natural parents, persons exercising
substitute parental authority are required to, among
others, keep their wards in their company,135 provide for
their upbringing,136 show them love and affection,137 give
them advice and counsel,138 and provide them with
companionship and understanding.139 For their part,
wards shall always observe respect and obedience
towards the person exercising parental authority.140 The
law forges a relationship between the ward and the
person exercising substitute parental authority such that
the death or injury of one results in the damage or
prejudice of the other.
Moral damages are awarded to compensate the claimant
for his or her actual injury, and not to penalize the
wrongdoer.141 Moral damages enable the injured party to
alleviate the moral suffering resulting from the
defendant's actions.142 It aims to restore — to the extent
possible — "the spiritual status quo ante[.]"143
Given the policy underlying Articles 216 and 220 of the
Family Code as well as the purposes for awarding moral
damages, a person exercising substitute parental
authority is rightly considered an ascendant of the
deceased, within the meaning of Article 2206(3) of the
172
Civil Code. Hence, respondent is entitled to moral
damages.
As exemplary damages have been awarded and as
respondent was compelled to litigate in order to protect
her interests, she is rightly entitled to attorney's fees.144
However, the award of interest should be modified. This
modification must be consistent with Nacar v. Gallery
Frames,145 in which we ruled:
chanRoblesvirtualLawlibrary
2. When an obligation, not constituting a loan or
forbearance of money, is breached, an interest
on the amount of damages awarded may be
imposed at the discretion of the court at the
rate of 6% per annum. No interest, however,
shall be adjudged on unliquidated claims or
damages, except when or until the demand can
be established with reasonable certainty.
Accordingly, where the demand is established
with reasonable certainty, the interest shall
begin to run from the time the claim is made
judicially or extrajudicially (Art. 1169, Civil
Code), but when such certainty cannot be so
reasonably established at the time the demand
is made, the interest shall begin to run only
from the date the judgment of the court is
made (at which time the quantification of
damages may be deemed to have been
reasonably ascertained). The actual base for the
computation of legal interest shall, in any case,
be on the amount finally adjudged.
3. When the judgment of the court awarding a
sum of money becomes final and executory, the
rate of legal interest, whether the case falls
under paragraph 1 or paragraph 2, above, shall
be 6% per annum from such finality until its
satisfaction, this interim period being deemed
to be by then an equivalent to a forbearance of
credit.146 (Emphasis supplied)
WHEREFORE, the Decision of the Court of Appeals dated
October 3, 2005 is AFFIRMED with the
following MODIFICATIONS: (a) actual damages in the
amount of P35,000.00 shall earn interest at the rate of 6%
per annum from the time it was judicially or
extrajudicially demanded from petitioner Caravan Travel
and Tours International, Inc. until full satisfaction; (b)
moral damages, exemplary damages, and attorney's fees
shall earn interest at the rate of 6% per annum from the
date of the Regional Trial Court Decision until full
satisfaction; and (c) civil indemnity shall earn interest at
the rate of 6% per annum from the date of the Court of
Appeals Decision until full satisfaction. SO ORDERED.
G.R. No. 165565 July 14, 2008
SCHOOL OF THE HOLY SPIRIT OF QUEZON CITY and/or
SR. CRISPINA A. TOLENTINO, S.Sp.S., Petitioners,
vs.
CORAZON P. TAGUIAM, Respondent.
DECISION
QUISUMBING, J.:
This petition assails the Decision1 dated June 7, 2004 of
the Court of Appeals in CA-G.R. SP No. 81480, which
reversed the Resolution2 dated September 20, 2002 of
the National Labor Relations Commission (NLRC) in NLRC
NCR CA No. 031627-02. The NLRC had affirmed the
Decision3 dated March 26, 2002 of the Labor Arbiter
dismissing respondent’s complaint for illegal dismissal.
This petition likewise assails the Resolution4 dated
September 30, 2004 of the Court of Appeals denying
petitioners’ motion for reconsideration.
The antecedent facts are as follows:
Respondent Corazon P. Taguiam was the Class Adviser of
Grade 5-Esmeralda of the petitioner, School of the Holy
Spirit of Quezon City. On March 10, 2000, the class
president, wrote a letter5 to the grade school principal
requesting permission to hold a year-end celebration at
the school grounds. The principal authorized the activity
and allowed the pupils to use the swimming pool. In this
connection, respondent distributed the
parent’s/guardian’s permit forms to the pupils.
Respondent admitted that Chiara Mae Federico’s permit
form6 was unsigned. Nevertheless, she concluded that
Chiara Mae was allowed by her mother to join the activity
since her mother personally brought her to the school
with her packed lunch and swimsuit.
Before the activity started, respondent warned the pupils
who did not know how to swim to avoid the deeper area.
However, while the pupils were swimming, two of them
sneaked out. Respondent went after them to verify where
they were going.
Unfortunately, while respondent was away, Chiara Mae
drowned. When respondent returned, the maintenance
man was already administering cardiopulmonary
resuscitation on Chiara Mae. She was still alive when
respondent rushed her to the General Malvar Hospital
where she was pronounced dead on arrival.
173
On May 23, 2000, petitioners issued a Notice of
Administrative Charge7 to respondent for alleged gross
negligence and required her to submit her written
explanation. Thereafter, petitioners conducted a
clarificatory hearing which respondent attended.
Respondent also submitted her Affidavit of Explanation.8
On July 31, 2000, petitioners dismissed respondent on
the ground of gross negligence resulting to loss of trust
and confidence.9 Meanwhile, Chiara Mae’s parents filed a
₱7 Million damage suit against petitioners and
respondent, among others. They also filed against
respondent a criminal complaint for reckless imprudence
resulting in homicide.
On July 25, 2001, respondent in turn filed a
complaint10 against the school and/or Sr. Crispina
Tolentino for illegal dismissal, with a prayer for
reinstatement with full backwages and other money
claims, damages and attorney’s fees.
In dismissing the complaint, the Labor Arbiter declared
that respondent was validly terminated for gross neglect
of duty. He opined that Chiara Mae drowned because
respondent had left the pupils without any adult
supervision. He also noted that the absence of adequate
facilities should have alerted respondent before allowing
the pupils to use the swimming pool. The Labor Arbiter
further concluded that although respondent’s negligence
was not habitual, the same warranted her dismissal since
death resulted therefrom.
Respondent appealed to the NLRC which, however,
affirmed the dismissal of the complaint.
Aggrieved, respondent instituted a petition for certiorari
before the Court of Appeals, which ruled in her favor. The
appellate court observed that there was insufficient proof
that respondent’s negligence was both gross and
habitual. The Court of Appeals disposed, thus:
WHEREFORE, … the Court hereby GRANTS the petition.
The assailed September 20, 2002 Resolution of the
National Labor Relations Commission entitled Corazon
Taguiam vs. School of the Holy Spirit and/or Sister
Crispina Tolentino[,] NLRC NCR Case No. 00-07-03877-
01[,] NLRC NCR CA No. 031627-02 is
hereby REVERSED and SET ASIDE, and a new one is
hereby ENTERED directing the private respondent the
School of the Holy Spirit to:
(1) Pay the petitioner full backwages, plus all
other benefits, bonuses and general increases
to which she would have been normally
entitled, had she not been dismissed and had
she not been forced to stop working computed
up to the finality of this decision;
(2) Pay the petitioner separation pay equivalent
to one (1) month for every year of service in
addition to full backwages;
(3) Pay the petitioner an amount equivalent to
10% of the judgment award as attorney’s fees;
(4) Pay the cost of this suit.
SO ORDERED.11
In this petition, petitioners contend that the Court of
Appeals erred in:
… REVERSING AND SETTING ASIDE THE DECISION AND
RESOLUTION OF THE NATIONAL LABOR RELATIONS
COMMISSION AFFIRMING THE DECISION OF THE LABOR
ARBITER DISMISSING THE COMPLAINT FOR LACK OF
MERIT.12
Simply stated, the sole issue presented for our resolution
is whether respondent’s dismissal on the ground of gross
negligence resulting to loss of trust and confidence was
valid.
The issue of whether a party is negligent is a question of
fact. As a rule, the Supreme Court is not a trier of facts
and this applies with greater force in labor
cases.13 However, where the issue is shrouded by a
conflict of factual perception, we are constrained to
review the factual findings of the Court of Appeals. In this
case, the findings of facts of the appellate court
contradict those of the Labor Arbiter and the NLRC.14
Under Article 28215 of the Labor Code, gross and habitual
neglect of duties is a valid ground for an employer to
terminate an employee. Gross negligence implies a want
or absence of or a failure to exercise slight care or
diligence, or the entire absence of care. It evinces a
thoughtless disregard of consequences without exerting
any effort to avoid them.16 Habitual neglect implies
repeated failure to perform one’s duties for a period of
time, depending upon the circumstances.17
Our perusal of the records leads us to conclude that
respondent had been grossly negligent. First, it is
undisputed that Chiara Mae’s permit form was unsigned.
Yet, respondent allowed her to join the activity because
she assumed that Chiara Mae’s mother has allowed her
to join it by personally bringing her to the school with
her packed lunch and swimsuit.
174
The purpose of a permit form is precisely to ensure that
the parents have allowed their child to join the school
activity involved. Respondent cannot simply ignore this
by resorting to assumptions. Respondent admitted that
she was around when Chiara Mae and her mother
arrived. She could have requested the mother to sign the
permit form before she left the school or at least called
her up to obtain her conformity.
Second, it was respondent’s responsibility as Class
Adviser to supervise her class in all activities sanctioned
by the school.18 Thus, she should have coordinated with
the school to ensure that proper safeguards, such as
adequate first aid and sufficient adult personnel, were
present during their activity. She should have been
mindful of the fact that with the number of pupils
involved, it would be impossible for her by herself alone
to keep an eye on each one of them.
As it turned out, since respondent was the only adult
present, majority of the pupils were left unsupervised
when she followed the two pupils who sneaked out. In
the light of the odds involved, respondent should have
considered that those who sneaked out could not have
left the school premises since there were guards manning
the gates. The guards would not have allowed them to
go out in their swimsuits and without any adult
accompanying them. But those who stayed at the pool
were put at greater risk, when she left them unattended
by an adult.1avvphi1
Notably, respondent’s negligence, although gross, was
not habitual. In view of the considerable resultant
damage, however, we are in agreement that the cause is
sufficient to dismiss respondent. This is not the first time
that we have departed from the requirements laid down
by the law that neglect of duties must be both gross and
habitual. In Philippine Airlines, Inc. v. NLRC,19 we ruled
that Philippine Airlines (PAL) cannot be legally compelled
to continue with the employment of a person admittedly
guilty of gross negligence in the performance of his
duties although it was his first offense. In that case, we
noted that a mere delay on PAL’s flight schedule due to
aircraft damage entails problems like hotel
accommodations for its passengers, re-booking, the
possibility of law suits, and payment of special landing
fees not to mention the soaring costs of replacing aircraft
parts.20 In another case, Fuentes v. National Labor
Relations Commission,21 we held that it would be unfair
to compel Philippine Banking Corporation to continue
employing its bank teller. In that case, we observed that
although the teller’s infraction was not habitual, a
substantial amount of money was lost. The deposit slip
had already been validated prior to its loss and the
amount reflected thereon is already considered as
current liabilities in the bank’s balance sheet.22 Indeed,
the sufficiency of the evidence as well as the resultant
damage to the employer should be considered in the
dismissal of the employee. In this case, the damage went
as far as claiming the life of a child.
As a result of gross negligence in the present case,
petitioners lost its trust and confidence in respondent.
Loss of trust and confidence to be a valid ground for
dismissal must be based on a willful breach of trust and
founded on clearly established facts. A breach is willful if
it is done intentionally, knowingly and purposely, without
justifiable excuse, as distinguished from an act done
carelessly, thoughtlessly, heedlessly or
inadvertently.23 Otherwise stated, it must rest on
substantial grounds and not on the employer’s
arbitrariness, whims, caprices or suspicion; otherwise, the
employee would eternally remain at the mercy of the
employer. It should be genuine and not simulated; nor
should it appear as a mere afterthought to justify earlier
action taken in bad faith or a subterfuge for causes which
are improper, illegal or unjustified. It has never been
intended to afford an occasion for abuse because of its
subjective nature. There must, therefore, be an actual
breach of duty committed by the employee which must
be established by substantial evidence.24
As a teacher who stands in loco parentis to her pupils,
respondent should have made sure that the children
were protected from all harm while in her
company.25 Respondent should have known that leaving
the pupils in the swimming pool area all by themselves
may result in an accident. A simple reminder "not to go
to the deepest part of the pool"26 was insufficient to cast
away all the serious dangers that the situation presented
to the children, especially when respondent knew that
Chiara Mae cannot swim.27 Dismally, respondent created
an unsafe situation which exposed the lives of all the
pupils concerned to real danger. This is a clear violation
not only of the trust and confidence reposed on her by
the parents of the pupils but of the school itself.
Finally, we note that based on the criminal complaint
filed by Chiara Mae’s parents, the Assistant City
Prosecutor found probable cause to indict respondent for
the crime of reckless imprudence resulting in homicide.
The Assistant City Prosecutor held that respondent
"should have foreseen the danger lurking in the waters."
By leaving her pupils in the swimming pool, respondent
displayed an "inexcusable lack of foresight and
precaution."28 While this finding is not controlling for
purposes of the instant case, this only supports our
conclusion that respondent has indeed been grossly
negligent.
All told, there being a clear showing that respondent was
culpable for gross negligence resulting to loss of trust
175
and confidence, her dismissal was valid and legal. It was
error for the Court of Appeals to reverse and set aside
the resolution of the NLRC.
WHEREFORE, the petition is GRANTED. The assailed
Decision dated June 7, 2004 of the Court of Appeals in
CA-G.R. SP No. 81480 is SET ASIDE. The Resolution dated
September 20, 2002 of the National Labor Relations
Commission in NLRC NCR CA No. 031627-02 is
REINSTATED. No pronouncement as to costs.
SO ORDERED.
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
176
 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 the jus 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
177
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
178
 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.
179
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
180
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.
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:
181
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.4 In its 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
182
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
father, respondent herein, has shown
little interest in his welfare as reflected
by his conduct in the past. Moreover
the fact that petitioners are well-off
financially, should be carefully
considered in awarding to them the
custody of the minor herein, lest the
breaking of such ties with his
maternal grandparents might deprive
the boy of an eventual college
education and other material
advantages (Consaul vs. Consaul, 63
N.Y.S. 688). Respondent had never
given any previous financial support
to his son, while, upon the other hand,
the latter receives so much bounty
from his maternal grandparents and
his mother as well, who is now
gainfully employed in the United
States. Moreover, the fact that
respondent, as a military personnel
who has to shuttle from one
assignment to another, and, in these
troubled times, may have pressing
and compelling military duties which
may prevent him from attending to
his son at times when the latter needs
him most, militates strongly against
said respondent. Additionally, the
child is sickly and asthmatic and
needs the loving and tender care of
those who can provide for it. 21
We find the aforementioned considerations insufficient
to defeat petitioner's parental authority and the
concomitant right to have custody over the minor Leouel
Santos, Jr., particularly since he has not been shown to be
an unsuitable and unfit parent. Private respondents'
demonstrated love and affection for the boy,
notwithstanding, the legitimate father is still preferred
over the grandparents. 22 The latter's wealth is not a
deciding factor, particularly because there is no proof
that at the present time, 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 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 between parent and son. It would also
give the father a chance to prove his love for his son and
183
for the son to experience the warmth and support which
a father can give.
His being a soldier is likewise no bar to allowing him
custody over the boy. So many men in uniform who are
assigned to different parts of the country in the service of
the nation, are still the natural guardians of their children.
It is not just to deprive our soldiers of authority, care and
custody over their children merely because of the normal
consequences of their duties and assignments, such as
temporary separation from their families.
Petitioner's employment of trickery in spiriting away his
boy from his in-laws, though unjustifiable, is likewise not
a ground to wrest custody from him.
Private respondents' attachment to the young boy whom
they have reared for the past three years is
understandable. Still and all, the law considers the natural
love of a parent to outweigh that of the grandparents,
such that only when the parent present is shown to be
unfit or unsuitable may the grandparents exercise
substitute parental authority, a fact which has not been
proven here.
The strong bonds of love and affection possessed by
private respondents as grandparents should not be seen
as incompatible with petitioner' right to custody over the
child as a father. Moreover, who is to say whether the
petitioner's financial standing may improve in the future?
WHEREFORE, the petition is GRANTED. The decision of
the respondent Court of Appeals dated April 30, 1992 as
well as its Resolution dated November 13, 1992 are
hereby REVERSED and SET ASIDE. Custody over the
minor Leouel Santos Jr. is awarded to his legitimate
father, herein petitioner Leouel Santos, Sr.
SO ORDERED.
[G.R. No. 116773. January 16, 1997]
TERESITA SAGALA-ESLAO, Petitioner, vs. COURT OF
APPEALS and MARIA PAZ CORDERO-OUYE, Respondents.
DECISION
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 mothers concern for her childs
custody is undying - such is a mothers 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 courts 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 petitioners mother in Sta. Ana, Pampanga, while
Angelica stayed with her parents at respondents house;
on August 6, 1990, petitioners 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
least compensate for the loss of her late son. In the
meantime, the petitioner returned to her mothers house
in Pampanga where she stayed with Leslie.
Subsequently, petitioner was introduced by her auntie to
Dr. James Manabu-Ouye, a Japanese-American, who is an
orthodontist practicing in the United States; their
acquaintance blossomed into a meaningful relationship
where on March 18, 1992, the petitioner and Dr. James
Ouye decided to get married; less than ten months
thereafter, or on January 15, 1993, the petitioner
migrated to San Francisco, California, USA, to join her
new husband. At present, the petitioner is a trainee at the
Union Bank in San Francisco, while her husband is a
progressive practitioner of his profession who owns three
cars, a dental clinic and earns US$5,000 a month. On June
24, 1993, the petitioner returned to the Philippines to be
reunited with her children and bring them to the United
States; the petitioner then informed the respondent
about her desire to take custody of Angelica and
explained that her present husband, Dr. James Ouye,
expressed his willingness to adopt Leslie and Angelica
and to provide for their support and education; however,
respondent resisted the idea by way of explaining that
the child was entrusted to her when she was ten days old
and accused the petitioner of having abandoned
184
Angelica. Because of the adamant attitude of the
respondent, the petitioner then sought the assistance of
a lawyer, Atty. Mariano de Joya, Jr., who wrote a letter to
the respondent demanding for the return of the custody
of Angelica to her natural mother6 and when the demand
remain[ed] unheeded, the petitioner instituted the
present action.7
After the trial on the merits, the lower court rendered its
decision, the dispositive portion of which reads:
WHEREFORE, finding the petition to be meritorious, the
Court grants the same and let the corresponding writ
issue. As a corollary, respondent Teresita Sagala-Eslao or
anyone acting under her behalf is hereby directed to
cause the immediate transfer of the custody of the minor
Angelica Cordero Eslao, to her natural mother, petitioner
Maria Paz Cordero-Ouye.
No pronouncement as to costs.
SO ORDERED.
On appeal, the respondent court affirmed in full the
decision of the trial court.
Hence, the instant petition by the minors paternal
grandmother, contending that the Court of Appeals
erred:
I financial condition, she wants her child back, and we
IN RULING THAT PRIVATE RESPONDENT MARIA PAZ
CORDERO-OUYE, DID NOT ABANDON MINOR,
ANGELICA ESLAO, TO THE CARE AND CUSTODY OF THE
PETITIONER TERESITA SAGALA-ESLAO.
II
IN RULING THAT THERE WAS NO COMPELLING REASON
TO SEPARATE MINOR, ANGELICA ESLAO, FROM PRIVATE
RESPONDENT MARIA PAZ CORDERO-OUYE, IN FAVOR
OF PETITIONER TERESITA SAGALA-ESLAO.
III
IN NOT FINDING THAT PETITIONER TERESITA SAGALA-
ESLAO, IS FIT TO BE GIVEN THE CUSTODY OF MINOR,
ANGELICA ESLAO.
The petition is without merit.
Being interrelated, the issues shall be discussed jointly.
Petitioner argues that she would be deserving to take
care of Angelica; that she had managed to raise 12
children of her own herself; that she has the financial
means to carry out her plans for Angelica; that she
maintains a store which earns a net income of about
P500 a day, she gets P900 a month as pension for the
death of her husband, she rents out rooms in her house
which she owns, for which she earns a total of P6,000 a
month, and that from her gross income of roughly
P21,000, she spends about P10,000 for the maintenance
of her house.
Despite the foregoing, however, and petitioners genuine
desire to remain with said child, that would qualify her to
have custody of Angelica, the trial courts disquisition, in
consonance with the provision that the childs 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 -
x x x legitimately, anxiously, and desperately trying to get
back her child in order to fill the void in her heart and
existence. She wants to make up for what she has failed
to do for her boy during the period when she was
financially unable to help him and when she could not
have him in her house because of the objection of the
father. Now that she has her own home and is in a better
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 a lucrative practice of his profession in San Francisco,
California, USA. The petitioner and her present husband
have a home of their own and they have three cars. The
petitioners husband is willing to adopt the petitioners
children. If the children will be with their mother, the
probability is that they will be afforded a bright future.
Contrast this situation with the one prevailing in the
respondents [grandmothers] house. As admitted by the
respondent, four of the rooms in her house are being
rented to other persons with each room occupied by 4 to
5 persons. Added to these persons are the respondents 2
sons, Samuel and Alfredo, and their respective families
(ibid., p. 54) and one can just visualize the kind of
atmosphere pervading thereat. And to aggravate the
situation, the house has only 2 toilets and 3 faucets.
Finally, considering that in all controversies involving the
custody of minors, the foremost criterion is the physical
and moral well being of the child taking into account the
respective resources and social and moral situations of
the contending parties (Union III vs. Mariano, 101 SCRA
185
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 here 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" an insists that
she visited Angelica as often as four times a month and
gave her remembrances such as candies and clothes, she
would not even remember when the fourth birthday of
Angelica was.
We are not persuaded by such averments.
In Santos, Sr. vs. Court of Appeals, 242 SCRA 407,12 we
stated, viz:
xxx [Parental authority] is a mass of rights and obligations
which the law grants to parents for the purpose of the
childrens 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.14chanroblesvirtuallawlibrary
Parental authority and responsibility are inalienable and
may not be transferred or renounced except in cases
authorized by law.15 The right attached to parental
authority, being purely personal, the law allows a waiver
of parental authority only in cases of adoption,
guardianship and surrender to a childrens home or an
orphan institution.16 When a parent entrusts the custody
of a minor to another, such as a friend or godfather, even
in a document, what is given is merely temporary custody
and it does not constitute a renunciation of parental
authority.17 Even if a definite renunciation is manifest, the
law still disallows the same.18
The father and mother, being the natural guardians of
unemancipated children, are duty-bound and entitled to
keep them in their custody and
company.19chanroblesvirtuallawlibrary
Thus, in the instant petition, when private respondent
entrusted the custody of her minor child to the
petitioner, what she gave to the latter was merely
temporary custody and it did not constitute
abandonment or renunciation of parental authority. For
the right attached to parental authority, being purely
personal, the law allows a waiver of parental authority
only in cases of adoption, guardianship and surrender to
a childrens home or an orphan institution which do not
appear in the case at bar.
Of considerable importance is the rule long accepted by
the courts that the right of parents to the custody of their
minor children is one of the natural rights incident to
parenthood, a right supported by law and sound public
policy. The right is an inherent one, which is not created
by the state or decisions of the courts, but derives from
the nature of the parental relationship.20
IN VIEW WHEREOF, the decision appealed from dated
March 25, 1994 being in accordance with law and the
evidence, the same is hereby AFFIRMED and the petition
DISMISSEDfor lack of merit.
SO ORDERED.
G.R. No. 144763. September 3, 2002.]
REYMOND B. LAXAMANA, Petitioner, v. MA. LOURDES * D.
LAXAMANA, Respondent.
DECISION
YNARES-SANTIAGO, J.:
This is another sad tale of an estranged couple’s tug-of-
war over the custody of their minor children. Petitioner
Reymond B. Laxamana and respondent Ma. Lourdes D.
Laxamana met sometime in 1983. Petitioner, who came
from a well-to-do family, was a graduate of Bachelor of
Laws, while respondent, a holder of a degree in banking
and finance, worked in a bank. After a whirlwind
courtship, Petitioner, 31 years old and respondent, 33,
got married on June 6, 1984. 1 Respondent quit her job
and became a full-time housewife. Petitioner, on the
other hand, operated buy and sell, fishpond, and
restaurant businesses for a living. The union was blessed
with three children — twin brothers Joseph and Vincent,
born on March 15, 1985, and Michael, born on June 19,
1986. 2
186
All went well until petitioner became a drug dependent. Soriano and to be returned at 5:00 o’clock in the
In October 1991, he was confined at the Estrellas Home afternoon of the same days.
Care Clinic in Quezon City. He underwent psychotherapy
and psychopharmacological treatment and was That the parties agreed to submit themselves to Dr.
discharged on November 16, 1991. 3 Upon petition of Teresito Ocampo for psychiatric/psychological
respondent, the Regional Trial Court of Quezon City, examination. Dr. Ocampo is hereby advised to go over
Branch 101, ordered petitioner’s confinement at the the records of this case to enable him to have a thorough
NARCOM-DRC for treatment and rehabilitation. 4 Again, background of the problem. He is hereby ordered to
on October 30, 1996, the trial court granted petitioner’s submit his findings directly to this Court without
voluntary confinement for treatment and rehabilitation at furnishing the parties copies of his report. And after the
the National Bureau of Investigation-TRC. 5 receipt of that report, thereafter, the case shall be
deemed submitted for decision. 11
On April 25, 1997, the court issued an order declaring
petitioner "already drug-free" and directing him to report On January 6, 2000, Dr. Ocampo submitted the results of
to a certain Dr. Casimiro "for out-patient counseling for 6 his psychiatric evaluation on the parties and their
months to one (1) year." 6 children. Pertinent portions thereof state:chanrob1es
virtual 1aw library
Despite several confinements, respondent claimed
petitioner was not fully rehabilitated. His drug SINGLY and COLLECTIVELY, the following information
dependence worsened and it became difficult for was obtained in the interview of the 3
respondent and her children to live with him. Petitioner children:chanrob1es virtual 1aw library
allegedly became violent and irritable. On some
occasions, he even physically assaulted Respondent. (1) THEY were affected psychologically by the drug-
Thus, on June 17, 1999, respondent and her 3 children related behavior of their father:chanrob1es virtual 1aw
abandoned petitioner and transferred to the house of her library
relatives.chanrob1es virtua1 1aw 1ibrary
a. they have a difficult time concentrating on their
On August 31, 1999, petitioner filed with the Regional studies.
Trial Court of Quezon City, Branch 107, the instant
petition for habeas corpus praying for custody of his b. they are envious of their classmates whose families live
three children. 7 Respondent opposed the petition, citing in peace and harmony.
the drug dependence of petitioner. 8
c. once, MICHAEL had to quit school temporarily.
Meanwhile, on September 24, 1999, respondent filed a
petition for annulment of marriage with Branch 102 of (2) THEY witnessed their father when he was under the
the Regional Trial Court of Quezon City. 9 influence of "shabu" .

On September 27, 1999, petitioner filed in the habeas (3) THEY think their father had been angry at their
corpus case, a motion seeking visitation rights over his paternal grandmother and this anger was displaced to
children. 10 On December 7, 1999, after the parties their mother.
reached an agreement, the court issued an order
granting visitation rights to petitioner and directing the (4) THEY hope their father will completely and
parties to undergo psychiatric and psychological permanently recover from his drug habit; and their
examination by a psychiatrist of their common choice. criteria of his full recovery include:chanrob1es virtual 1aw
The parties further agreed to submit the case for library
resolution after the trial court’s receipt of the results of
their psychiatric examination. The full text of said order a. he will regain his "easy-going" attitude.
reads:chanrob1es virtual 1aw library
b. he won’t be hot-headed anymore and would not drive
The parties appeared with their respective lawyers. A their van recklessly.
conference was held in open Court and the parties
agreed on the following:chanrob1es virtual 1aw library c. he would not tell unverifiable stories anymore.

Effective this Saturday and every Saturday thereafter until d. he would not poke a gun on his own head and ask the
further order the petitioner shall fetch the children every children who they love better, mom or dad.
Saturday and Sunday at 9:00 o’clock in the morning from
the house of the sister of respondent, Mrs. Corazon (5) At one point one of the sons, became very emotional

187
while he was narrating his story and he cried. I had to figures and sets of similarities and differences. Her
stop the interview. content of thought was negative for delusions,
hallucinations, paranoia, suicidal and homicidal ideation.
(6) THEIR mother was fearful and terrified when their She could process abstract ideas and general
father quarreled with her. information. Her attention span was adequate. There was
no evidence of impaired judgment.
(7) THEY hope their visits to their father will not interfere
with their school and academic schedules. The Rorschach ink blot test gave responses such as "man
touching a woman. . ., 2 people on a hi-five . . ., 2 women
x x x chatting, . . . beast. . ., stuffed animal. . ., etc.." Her past
reflected on her psyche. There is no creative process.
There were no bizarre ideas.
(3) MARILOU is one of 4 siblings. She graduated from
college with a degree in banking and finance. SHE was a The ZUNG anxiety/depression test highlighted "I get tired
carreer (sic) woman; worked for a bank for ten years; for no reason" ; "I feel that I am useful and needed" (re,
subsequently quit her job to devote more time to her son). There is moderate depression. However, she could
family. still make competent decisions.

(4) REYMOND is one of 5 siblings in a well-to-do family. The Social Adaptation Scale scored well in her capacity to
His father was a physician. During his developmental adapt to her situation. There is no evidence of losing
years, he recalled how his mother complained incessantly control.
about how bad the father was; only to find later that the
truth was opposite to the complaints of his mother; that The findings on the examination of the MENTAL STATUS
his father was nice, logical and understanding. He and MENTAL PROCESSES of REYMOND showed an
recalled how he unselfishly served his father — he individual who presented himself in the best situation he
opened the door when he arrived home; he got his could possibly be. He is cool, calm and collected. He
portfolio; he brought the day’s newspaper; he removed answered all my questions coherently. He is of average
his shoes; he brought his glass of beer or his shot of intelligence. He was oriented to person, place and date.
whisky. In short, he served him like a servant. His father His memory for recent and remote events was intace
died of stroke in 1990. (sic). His content of thought was negative for delusions,
hallucinations, paranoia, suicidal and homicidal ideation.
REYMOND graduated from college with a degree in LAW His attention span was adequate. He could process
in 1984; he did not pass the bar. abstract ideas, sets of figures, and general
information.chanrob1es virtua1 1aw 1ibrary
His work history is as follows:chanrob1es virtual 1aw
library The Rorschach ink blot test gave responses such as
"distorted chest . . ., butterfly with scattered color. . ., cat
a. 1985 to 1989 — he operated fishponds. ran over by a car. . ., nothing. . . 2 people. . ., monster
etc.." There is no central theme in his responses. There
b. 1976 to 1991 — simultaneously, he operated were no bizarre ideas.
restaurant.
The Zung anxiety/depression test: "My mind is as clear as
c. 1991 he engaged in the trading of vegetable, cooking it used to be" (most of the time). There was no evidence
oil, and mangos. of brain damage. There is no significant affective
response that would affect his rationality.
d. HE handled the leasing of a family property to a fast
food company. The Social Adaptive Scale scored well in his capacity to
adapt to his situation. He reached out well to others. He
The findings on the examination of the MENTAL STATUS is in very good control of his emotions.
and MENTAL PROCESSES OF MARILOU showed a woman
who showed the psychological effects of the trauma she BASED ON MY FINDINGS I MADE THE FOLLOWING
had in the past. She is slightly edgy and fidgety with any COMMENTS AND CONCLUSIONS:chanrob1es virtual 1aw
external noise. SHE answered all my questions coherently. library
Her emotional state was stable throughout the interview.
She is of average intelligence. She was oriented to I. The CRITERIA for cure in drug addiction consist
person, place and date. Her memory for recent and of:chanrob1es virtual 1aw library
remote events was intact. She could process sets of

188
1. 5-years and 10-years intervals of drug-free periods.
2. change for the better of the maladaptive behaviors of
the addict consisting of telling lies, manipulative
behavior, melodramatic and hysterical actions.
3. constructive and reproductive outlets for the mental
and physical energies of the addict.
4. behavior oriented towards spiritual values and other
things.
II BASED on such scientific and observable criteria, I do
not yet consider REYMOND LAXAMANA completely
cured even though his drug urine test at Medical City for
"shabu" was negative. (Emphasis supplied)
III I DO NOT DETECT any evidence that the paternal visits
of the sons would be harmful or they would be in any
danger. The academic schedules of the sons has be taken
into account in determining the length and frequency of
their visits.
x x x. 12
On January 14, 2000, the trial court rendered the assailed
decision awarding the custody of the three children to
respondent and giving visitation rights to petitioner. The
dispositive portion thereof states:chanrob1es virtual 1aw
library
WHEREFORE, in view of the foregoing, judgment is
hereby rendered:chanrob1es virtual 1aw library
1. The children, Joseph, Michael and Vincent all surnamed
Laxamana are hereby ordered to remain under the
custody of the Respondent.
2. The visitation arrangement as per Order of December
7, 1999 is hereby incorporated and forms part of this
Decision. The parties are enjoined to comply with the
terms stated therein.
3. The petitioner is hereby ordered to undergo "urine
drug screen" for "shabu" for three times (3x) per month
every ten (10) days, with the Dangerous Drugs Board. The
said Board is hereby ordered to submit the results of all
tests immediately as directed to this Court.
4. The petitioner is hereby referred to undergo regular
counseling at the Free-Clinic at the East Avenue Medical
Center, Department of Health Out Patient Psychiatry
Department until further order. For this purpose, it is
suggested that he should see Dr. Teresito P. Ocampo to
make arrangements for said counseling.
Let copies of this Decision be furnished the Dangerous
Drugs Board and the Free-Clinic, Out Patient Psychiatry
Department, East Avenue Medical Center, Department of
Health for their information and guidance.
SO ORDERED. 13
Aggrieved, petitioner filed the instant petition for review
on certiorari under Rule 45 of the Rules of Court, based
on the following:chanrob1es virtual 1aw library
I
THE COURT A QUO HAS DEPARTED FROM THE
ACCEPTED AND USUAL COURSE OF JUDICIAL
PROCEEDINGS WHEN IT RESOLVED THE ISSUE OF
CUSTODY WITHOUT CONDUCTING A TRIAL TO
DETERMINE FACTUAL ISSUES.
II
THE COURT A QUO HAS RESOLVED THE ISSUE OF
CUSTODY IN A MANNER NOT IN ACCORD WITH LAW
AND WITH THE APPLICABLE DECISIONS OF THIS
HONORABLE SUPREME COURT WHEN IT RESOLVED THE
ISSUE OF CUSTODY WITHOUT CONSIDERING THE
PARAMOUNT INTEREST AND WELFARE OF HEREIN
PARTIES’ THREE (3) MINOR CHILDREN.
III
THE ASSAILED DECISION IS NULL AND VOID AS IT DOES
NOT COMPLY WITH SECTION 14 ARTICLE VIII OF THE
CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES.
14
The core issue for resolution in the instant petition is
whether or not the trial court considered the paramount
interest and welfare of the children in awarding their
custody to Respondent.
In controversies involving the care, custody and control
of their minor children, the contending parents stand on
equal footing before the court who shall make the
selection according to the best interest of the child. The
child if over seven years of age may be permitted to
choose which parent he/she prefers to live with, but the
court is not bound by such choice if the parent so chosen
is unfit. In all cases, the sole and foremost consideration
is the physical, educational, social and moral welfare of
the child concerned, taking into account the respective
resources as well as social and moral situations of the
opposing parents. 15
In Medina v. Makabali, 16 we stressed that this is as it
189
should be, for in the continual evolution of legal
institutions, the patria potestas has been transformed
from the jus 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. There is no power,
but a task; no complex rights of parents but a sum of
duties; no sovereignty, but a sacred trust for the welfare
of the minor.chanrob1es virtua1 1aw 1ibrary
Mindful of the nature of the case at bar, the court a quo
should have conducted a trial notwithstanding the
agreement of the parties to submit the case for
resolution on the basis, inter alia, of the psychiatric report
of Dr. Teresito. Thus, petitioner is not estopped from
questioning the absence of a trial considering that said
psychiatric report, which was the court’s primary basis in
awarding custody to respondent, is insufficient to justify
the decision. The fundamental policy of the State to
promote and protect the welfare of children shall not be
disregarded by mere technicality in resolving disputes
which involve the family and the youth. 17 While
petitioner may have a history of drug dependence, the
records are inadequate as to his moral, financial and
social well-being. The results of the psychiatric evaluation
showing that he is not yet "completely cured" may render
him unfit to take custody of the children, but there is no
evidence to show that respondent is unfit to provide the
children with adequate support, education, as well as
moral and intellectual training and development.
Moreover, the children in this case were 14 and 15 years
old at the time of the promulgation of the decision, yet
the court did not ascertain their choice as to which
parent they want to live with. In its September 8, 1999
order, the trial court merely stated that: "The children
were asked as to whether they would like to be with
petitioner but there are indications that they entertain
fears in their hearts and want to be sure that their father
is no longer a drug dependent." 18 There is no showing
that the court ascertained the categorical choice of the
children. These inadequacies could have been remedied
by an exhaustive trial probing into the accuracy of Dr.
Ocampo’s report and the capacity of both parties to raise
their children. The trial court was remiss in the fulfillment
of its duties when it approved the agreement of the
parties to submit the case for decision on the basis of
sketchy findings of facts.
In Lacson v. Lacson, 19 the case was remanded to the
trial court with respect to the issue of custody. In the said
case, the court a quo resolved the question of the
children’s custody based on the amicable settlement of
the spouses. Stressing the need for presentation of
evidence and a thorough proceedings, we explained —
It is clear that . . . every child [has] rights which are not
and should not be dependent solely on the wishes, much
less the whims and caprices, of his parents. His welfare
should not be subject to the parents’ say-so or mutual
agreement alone. Where, as in this case, the parents are
already separated in fact, the courts must step in to
determine in whose custody the child can better be
assured the rights granted to him by law. The need,
therefore, to present evidence regarding this matter,
becomes imperative. A careful scrutiny of the records
reveals that no such evidence was introduced in the CFI.
This latter court relied merely on the mutual agreement
of the spouses-parents. To be sure, this was not sufficient
basis to determine the fitness of each parent to be the
custodian of the children.
Besides, at least one of the children — Enrique, the eldest
— is now eleven years of age and should be given the
choice of the parent he wishes to live with. . . .
In the instant case, the proceedings before the trial court
leave much to be desired. While a remand of this case
would mean further delay, the children’s paramount
interest demand that further proceedings be conducted
to determine the fitness of both petitioner and
respondent to assume custody of their minor children.
WHEREFORE, in view of all the foregoing, the instant case
is REMANDED to the Regional Trial Court of Quezon City,
Branch 107, for the purpose of receiving evidence to
determine the fitness of petitioner and respondent to
take custody of their children. Pending the final
disposition of this case, custody shall remain with
respondent but subject to petitioner’s visitation rights in
accordance with the December 7, 1999 order of the trial
court.chanrob1es virtua1 1aw 1ibrary
SO ORDERED.
[G.R. NO. 154994 : June 28, 2005]
JOYCELYN PABLO-GUALBERTO, Petitioner, v. CRISANTO
RAFAELITO GUALBERTO V, Respondent.
[G.R. NO. 156254 : June 28, 2005]
DECISION
PANGANIBAN, J.:
When love is lost between spouses and the marriage
inevitably results in separation, the bitterest tussle is
often over the custody of their children. The Court is now
tasked to settle the opposing claims of the parents for
custody pendente lite of their child who is less than
seven years of age. There being no sufficient proof of any
190
compelling reason to separate the minor from his
mother, custody should remain with her.
The Case
Before us are two consolidated petitions. The first is a
Petition for Review1 filed by Joycelyn Pablo-Gualberto
under Rule 45 of the Rules of Court, assailing the August
30, 2002 Decision2 of the Court of Appeals (CA) in CA-GR
SP No. 70878. The assailed Decision disposed as follows:
"WHEREFORE, premises considered, the Petition
for Certiorari is hereby GRANTED. The assailed Order of
May 17, 2002 is hereby SET ASIDE and ANNULLED. The
custody of the child is hereby ordered returned to
[Crisanto Rafaelito G. Gualberto V].
"The [respondent] court/Judge is hereby directed to
consider, hear and resolve [petitioner's] motion to lift the
award of custody pendente lite of the child to
[respondent]."3
The second is a Petition for Certiorari4 filed by Crisanto
Rafaelito Gualberto V under Rule 65 of the Rules of
Court, charging the appellate court with grave abuse of
discretion for denying his Motion for Partial
Reconsideration of the August 30, 2002 Decision. The
denial was contained in the CA's November 27, 2002
Resolution, which we quote:
"We could not find any cogent reason why the [last part
of the dispositive portion of our Decision of August 30,
2002] should be deleted, hence, subject motion is hereby
DENIED."5
The Facts
The CA narrated the antecedents as follows:
"x x x [O]n March 12, 2002, [Crisanto Rafaelito G.
Gualberto V] filed before [the Regional Trial Court of
Parañaque City] a petition for declaration of nullity of his
marriage to x x x Joycelyn D. Pablo Gualberto, with an
ancillary prayer for custody pendente lite of their almost
4-year-old son, minor Rafaello (the child, for brevity),
whom [Joycelyn] allegedly took away with her from the
conjugal home and his school (Infant Toddler's Discovery
Center in Parañaque City) when [she] decided to
abandon [Crisanto] sometime in early February 2002[.] x x
x [O]n April 2, 2002, [RTC Judge Helen B. Ricafort] heard
the ancillary prayer of [Crisanto] for custody pendente
lite. x x x [B]ecause [Joycelyn] allegedly failed to appear
despite notice, [Crisanto], a certain Col. Renato Santos,
and Ms. Cherry Batistel, testified before the x x x Judge; x
x x documentary evidence [was] also presented[.] x x x
[O]n April 3, 2002, x x x [the] Judge awarded
custody pendente lite of the child to [Crisanto.] [T]he
Order partly read x x x:
'x x x Crisanto Rafaelito Gualberto V testified. He stated
that [Joycelyn] took their minor child with her to
Caminawit, San Jose, Occidental Mindoro. At that time,
the minor was enrolled at B.F. Homes, Parañaque City.
Despite effort[s] exerted by him, he has failed to see his
child. [Joycelyn] and the child are at present staying with
the former's step-father at the latter's [residence] at
Caminawit, San Jose, Occidental Mindoro.
'Renato Santos, President of United Security Logistic
testified that he was commissioned by [Crisanto] to
conduct surveillance on [Joycelyn] and came up with the
conclusion that [she] is having lesbian relations with one
Noreen Gay Cuidadano in Cebu City.
'The findings of Renato Santos [were] corroborated by
Cherry Batistel, a house helper of the spouses who stated
that [the mother] does not care for the child as she very
often goes out of the house and on one occasion, she
saw [Joycelyn] slapping the child.
'Art. 211 of the Family Code provides as follows:
'The father and the mother shall jointly exercise parental
authority over the persons of their children. In the case of
disagreement, the father's decision shall prevail, unless
there is a judicial order to the contrary.'
'The authority of the father and mother over their
children is exercised jointly. This recognition, however,
does not place her in exactly the same place as the
father; her authority is subordinated to that of the father.
'In all controversies regarding the custody of minors, the
sole and foremost consideration is the physical,
educational, social and moral welfare of the child, taking
into account the respective resources and social and
moral situations of the contending parties.
'The Court believes that [Joycelyn] had no reason to take
the child with her. Moreover, per Sheriff returns, she is
not with him at Caminawit, San Jose, Occidental Mindoro.
'WHEREFORE, pendente lite, the Court hereby awards
custody of the minor, Crisanto Rafaello P. Gualberto X to
his father, Crisanto Rafaelito G. Gualberto V.'
"x x x [O]n April 16, 2002, the hearing of [Joycelyn's]
motion to lift the award of custody pendente lite of the
child to [Crisanto] was set but the former did not
191
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.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
'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.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
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:
192
"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; andcralawlibrary
"B. Ought not the ancillary remedies [o]f habeas corpus,
because the whereabouts, physical and mental condition
of the illegally detained Minor Rafaello is now unknown
to petitioner and preliminary mandatory injunction with
urgent prayer for immediate issuance of preliminary
[injunction], petitioner having a clear and settled right to
custody of Minor Rafaello which has been violated and
still is being continuously violated by [petitioner
Joycelyn], be granted by this Honorable Court?"10
Being interrelated, the procedural challenges and the
substantive issues in the two Petitions will be addressed
jointly.
The Court's Ruling
There is merit in the Petition in GR No. 154994, but not in
GR No. 156254.
Preliminary Issue:
The Alleged Prematurity of the Petition in GR No. 154994
Before going into the merits of the present controversy,
the Court shall first dispose of a threshold issue. In GR
No. 154994, therein Respondent Crisanto contends that
the Petition for Review was filed beyond the deadline
(October 24, 2002) allowed by the Rules of Court and by
this Court. He claims that Registry Bill No. 88 shows that
the Petition was sent by speed mail, only on November 4,
2002. Furthermore, he assails the Petition for its
prematurity, since his Motion for Partial Reconsideration
of the August 30, 2002 CA Decision was still pending
before the appellate court. Thus, he argues that the
Supreme Court has no jurisdiction over Joycelyn's
Petition.
Timeliness of the Petition
The manner of filing and service Joycelyn's Petition by
mail is governed by Sections 3 and 7 of Rule 13 of the
Rules of Court, which we quote:
"SEC. 3. Manner of filing. - The filing of pleadings,
appearances, motions, notices, orders, judgments and all
other papers shall be made by presenting the original
copies thereof, plainly indicated as such personally to the
clerk of court or by sending them by registered mail. xxx
In the second case, the date of mailing of motions,
pleadings and other papers or payments or deposits, as
shown by the post office stamp on the envelope or the
registry receipt, shall be considered as the date of their
filing, payment, or deposit in court. The envelope shall be
attached to the records of the case.
"x x x x x x x x x
"SEC. 7. Service by mail. - Service by registered mail shall
be made by depositing the copy in the office, in a sealed
envelope, plainly addressed to the party or his counsel at
his office, if known, otherwise at his residence, if known,
with postage fully pre-paid, and with instructions to the
postmaster to return the mail to the sender after ten (10)
days if undelivered. If no registry service is available in
the locality of either the sender of the addressee, service
may be done by ordinary mail. (Italics supplied)
The records disclose that Joycelyn received the CA's
August 30, 2002 Decision on September 9, 2002. On
September 17, she filed before this Court a Motion for a
30-day extension of time to file a Petition for Review
on Certiorari . This Motion was granted,11 and the
deadline was thus extended until October 24, 2002.
A further perusal of the records reveals that copies of the
Petition were sent to this Court and to the parties by
registered mail12 at the Biñan, Laguna Post Office on
October 24, 2002. This is the date clearly stamped on the
face of the envelope13 and attested to in the Affidavit of
Service14 accompanying the Petition. Petitioner Joycelyn
explained that the filing and the service had been made
193
by registered mail due to the "volume of delivery
assignments and the lack of a regular messenger."15
The Petition is, therefore, considered to have been filed
on October 24, 2002, its mailing date as shown by the
post office stamp on the envelope. The last sentence of
Section 3 of Rule 13 of the Rules provides that the date
of filing may be shown either by the post office stamp on
the envelope or by the registry receipt. Proof of its filing,
on the other hand, is shown by the existence of the
petition in the record, pursuant to Section 12 of Rule
13.16
The postmaster satisfactorily clarifies that Registry Bill No.
88, which shows the date November 2, 2002, merely
discloses when the mail matters received by the Biñan
Post Office on October 24, 2002, were dispatched or sent
to the Central Mail Exchange for distribution to their final
destinations.17 The Registry Bill does not reflect the actual
mailing date. Instead, it is the postal Registration
Book18 that shows the list of mail matters that have been
registered for mailing on a particular day, along with the
names of the senders and the addressees. That book
shows that Registry Receipt Nos. 2832-A and 2832-B,
pertaining to the mailed matters for the Supreme Court,
were issued on October 24, 2002.
Prematurity of the Petition
As to the alleged prematurity of the Petition of Joycelyn,
Crisanto points out that his Urgent Motion for Partial
Reconsideration19 was still awaiting resolution by the CA
when she filed her Petition before this Court on October
24, 2002. The CA ruled on the Motion only on November
27, 2002.
The records show, however, that the Motion of Crisanto
was mailed only on September 12, 2002. Thus, on
September 17, 2002, when Joycelyn filed her Motion for
Extension of Time to file her Petition for Review, she
might have still been unaware that he had moved for a
partial reconsideration of the August 20, 2002 CA
Decision. Nevertheless, upon being notified of the filing
of his Motion, she should have manifested that fact to
this Court.
With the CA's final denial of Crisanto's Motion for
Reconsideration, Joycelyn's lapse may be excused in the
interest of resolving the substantive issues raised by the
parties.
First Issue:
Grave Abuse of Discretion
In GR No. 156254, Crisanto submits that the CA gravely
abused its discretion when it ordered the trial court judge
to "consider, hear and resolve the motion to lift the
award of custody pendente lite" without any proper
motion by Joycelyn and after the April 3, 2002 Order of
the trial court had become final and executory. The CA is
also charged with grave abuse of discretion for denying
his Motion for Partial Reconsideration without stating the
reasons for the denial, allegedly in contravention of
Section 1 of Rule 36 of the Rules of Court.
The Order to Hear the Motion to Lift the Award of
Custody Pendente Lite Proper
To begin with, grave abuse of discretion is committed
when an act is 1) done contrary to the Constitution, the
law or jurisprudence;20 or 2) executed "whimsically or
arbitrarily" in a manner "so patent and so gross as to
amount to an evasion of a positive duty, or to a virtual
refusal to perform the duty enjoined."21 What constitutes
grave abuse of discretion is such capricious and arbitrary
exercise of judgment as that which is equivalent, in the
eyes of the law, to lack of jurisdiction.22
On the basis of these criteria, we hold that the CA did not
commit grave abuse of discretion.
First, there can be no question that a court of competent
jurisdiction is vested with the authority to resolve even
unassigned issues. It can do so when such a step is
indispensable or necessary to a just resolution of issues
raised in a particular pleading or when the unassigned
issues are inextricably linked or germane to those that
have been pleaded.23 This truism applies with more force
when the relief granted has been specifically prayed for,
as in this case.
Explicit in the Motion to Dismiss24 filed by Joycelyn
before the RTC is her ancillary prayer for the court to lift
and set aside its April 3, 2002 Order awarding to Crisanto
custody pendente lite of their minor son. Indeed, the
necessary consequence of granting her Motion to
Dismiss would have been the setting aside of the Order
awarding Crisanto provisional custody of the child.
Besides, even if the Motion to Dismiss was denied - - as
indeed it was - - the trial court, in its discretion and if
warranted, could still have granted the ancillary prayer as
an alternative relief.
Parenthetically, Joycelyn's Motion need not have been
verified because of the provisional nature of the April 3,
2002 Order. Under Rule 3825 of the Rules of Court,
verification is required only when relief is sought from a
final and executory Order. Accordingly, the court may set
aside its own orders even without a proper motion,
194
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
case shall 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 and in the
28
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)
195
A similar provision is embodied in Article 8 of the Child
and Youth Welfare Code (Presidential Decree No.
603).34 Article 17 of the same Code is even more explicit
in providing for the child's custody under various
circumstances, specifically in case the parents are
separated. It clearly mandates that "no child under five
years of age shall be separated from his mother, unless
the court finds compelling reasons to do so." The
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, the Court held that the
39
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 compelling evidence of the mother's unfitness. The
mother has been declared unsuitable to have custody of
her children in one or more of the following instances:
neglect, abandonment, unemployment, immorality,
habitual drunkenness, drug addiction, maltreatment of
196
the child, insanity or affliction with a communicable
disease.49
Here, Crisanto cites immorality due to alleged lesbian
relations as the compelling reason to deprive Joycelyn of
custody. It has indeed been held that under certain
circumstances, the mother's immoral conduct may
constitute a compelling reason to deprive her of
custody.50
But sexual preference or moral laxity alone does not
prove parental neglect or incompetence. Not even the
fact that a mother is a prostitute or has been unfaithful to
her husband would render her unfit to have custody of
her minor child.51 To deprive the wife of custody, the
husband must clearly establish that her moral lapses have
had an adverse effect on the welfare of the child or have
distracted the offending spouse from exercising proper
parental care.52
To this effect did the Court rule in Unson III v.
Navarro,53 wherein the mother was openly living with her
brother-in-law, the child's uncle. Under that
circumstance, the Court deemed it in the nine-year-old
child's best interest to free her "from the obviously
unwholesome, not to say immoral influence, that the
situation in which the mother ha[d] placed herself might
create in [the child's] moral and social outlook."54
In Espiritu v. CA,55 the Court took into account
psychological and case study reports on the child, whose
feelings of insecurity and anxiety had been traced to
strong conflicts with the mother. To the psychologist the
child revealed, among other things, that the latter was
disturbed upon seeing "her mother hugging and kissing
a 'bad' man who lived in their house and worked for her
father." The Court held that the "illicit or immoral
activities of the mother had already caused the child
emotional disturbances, personality conflicts, and
exposure to conflicting moral values x x x."
Based on the above jurisprudence, it is therefore not
enough for Crisanto to show merely that Joycelyn was a
lesbian. He must also demonstrate that she carried on
her purported relationship with a person of the same sex
in the presence of their son or under circumstances not
conducive to the child's proper moral development. Such
a fact has not been shown here. There is no evidence that
the son was exposed to the mother's alleged sexual
proclivities or that his proper moral and psychological
development suffered as a result.
Moreover, it is worthy to note that the trial court judge,
Helen Bautista-Ricafort, ruled in her May 17, 2002 Order
that she had found the "reason stated by [Crisanto] not
to be compelling"56 as to suffice as a ground for
separating the child from his mother. The judge made
this conclusion after personally observing the two of
them, both in the courtroom and in her chambers on
April 16, 2002, and after a chance to talk to the boy and
to observe him firsthand. This assessment, based on her
unique opportunity to witness the child's behavior in the
presence of each parent, should carry more weight than a
mere reliance on the records. All told, no compelling
reason has been adduced to wrench the child from the
mother's custody.
No Grant of Habeas Corpus and Preliminary Injunction
As we have ruled that Joycelyn has the right to keep her
minor son in her custody, the writ of habeas corpus and
the preliminary mandatory injunction prayed for by
Crisanto have no leg to stand on. A writ of habeas
corpus may be issued only when the "rightful custody of
any person is withheld from the person entitled
thereto,"57 a situation that does not apply here.
On the other hand, the ancillary remedy of preliminary
mandatory injunction cannot be granted, because
Crisanto's right to custody has not been proven to be
"clear and unmistakable."58 Unlike an ordinary preliminary
injunction, the writ of preliminary mandatory injunction is
more cautiously regarded, since the latter requires the
performance of a particular act that tends to go beyond
the maintenance of the status quo.59 Besides, such an
injunction would serve no purpose, now that the case has
been decided on its merits.60
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. SO ORDERED.
G.R. No. 162734 August 29, 2006
MARIE ANTONETTE ABIGAIL C. SALIENTES, ORLANDO B.
SALIENTES, and ROSARIO C. SALIENTES, Petitioners,
vs.
LORAN S.D. ABANILLA, HONORABLE JUDGE PEDRO
SABUNDAYO, JR., REGIONAL TRIAL COURT, BRANCH 203,
MUNTINLUPA CITY, Respondents
DECISION
QUISUMBING, J.:
The instant petition assails the Decision 1dated
November 10, 2003 of the Court of Appeals in CA-G.R. SP
197
No. 75680, which dismissed the petition for certiorari
against the orders of the Regional Trial Court in Special
Proceedings No. 03-004. Likewise assailed is the Court of
Appeals’ Resolution 2dated March 19, 2004 denying
reconsideration.
The facts of the case are as follows:
Private respondent Loran S.D. Abanilla and petitioner
Marie Antonette Abigail C. Salientes are the parents of
the minor Lorenzo Emmanuel S. Abanilla. They lived with
Marie Antonette’s parents, petitioners Orlando B.
Salientes and Rosario C. Salientes. Due to in-laws
problems, private respondent suggested to his wife that
they transfer to their own house, but Marie Antonette
refused. So, he alone left the house of the Salientes.
Thereafter, he was prevented from seeing his son.
Later, Loran S.D. Abanilla in his personal capacity and as
the representative of his son, filed a Petition for Habeas
Corpus and Custody, 3 docketed as Special Proceedings
No. 03-004 before the Regional Trial Court of Muntinlupa
City. On January 23, 2003, the trial court issued the
following order:
Upon verified Petition for a Writ of Habeas Corpus by
Petitioners, the Respondents Marie Antonette Abigail C.
Salientes, Orlando B. Salientes and Rosario C. Salientes
are hereby directed to produce and bring before this
Court the body of minor Lorenzo Emmanuel Salientes
Abanilla on January 31, 2003 at 1:00 o’clock in the
afternoon and to show cause why the said child should
not be discharged from restraint.
Let this Writ be served by the Sheriff or any authorized
representative of this Court, who is directed to
immediately make a return.
SO ORDERED. 4
Petitioners moved for reconsideration which the court
denied.
Consequently, petitioners filed a petition for certiorari
with the Court of Appeals, but the same was dismissed
on November 10, 2003. The appellate court affirmed the
February 24, 2003 Order of the trial court holding that its
January 23, 2003 Order did not award the custody of the
2-year-old child to any one but was simply the standard
order issued for the production of restrained persons.
The appellate court held that the trial court was still
about to conduct a full inquiry, in a summary proceeding,
on the cause of the minor’s detention and the matter of
his custody. The Court of Appeals ruled thus:
WHEREFORE, the petition is hereby DISMISSED for lack of
merit.
SO ORDERED. 5
Petitioners moved for reconsideration, which was denied
on March 19, 2004.
Hence, petitioners interposed this appeal by certiorari
anchored on the following grounds:
1. The Court of Appeals erred in not pronouncing the
respondent judge gravely abused his discretion,
amounting to lack or in excess of jurisdiction in issuing
an order for the petitioner-mother to first show cause
why her own three-year old child in her custody should
not be discharged from a so-called "restraint" despite no
evidence at all of restraint and no evidence of compelling
reasons of maternal unfitness to deprive the petitioner-
mother of her minor son of tender years. The assailed
orders, resolutions and decisions of the lower court and
the Court of Appeals are clearly void;
2. The Court of Appeals erred in not pronouncing that
the respondent judge gravely abused his discretion in
issuing a writ of habeas corpus which clearly is not
warranted considering that there is no unlawful restraint
by the mother and considering further that the law
presumes the fitness of the mother, thereby negating any
notion of such mother illegally restraining or confining
her very own son of tender years. The petition is not even
sufficient in substance to warrant the writ. The assailed
orders are clearly void.
3. Contrary to the Court of Appeals decision, the
"Sombong vs. CA" case supports rather than negates the
position of the petitioners.
4. Contrary to the Court of Appeals decision, summary
proceeding does violence to the tender-years-rule
5. The Court of Appeals failed to consider that the private
respondent failed to present prima facie proof of any
compelling reason of the unfitness of the petitioner-
mother;
6. The Court of Appeals failed to see that the New Rules
on Custody SUFFICES AS REMEDY. 6
Plainly put, the issue is: Did the Court of Appeals err
when it dismissed the petition for certiorari against the
trial court’s orders dated January 23, 2003 and February
24, 2003?
198
Petitioners contend that the order is contrary to Article
213 7 of the Family Code, which provides that no child
under seven years of age shall be separated from the
mother unless the court finds compelling reasons to
order otherwise. They maintain that herein respondent
Loran had the burden of showing any compelling reason
but failed to present even a prima facie proof thereof.
Petitioners posit that even assuming that there were
compelling reasons, the proper remedy for private
respondent was simply an action for custody, but
not habeas corpus. Petitioners assert that habeas
corpus is unavailable against the mother who, under the
law, has the right of custody of the minor. They insist
there was no illegal or involuntary restraint of the minor
by his own mother. There was no need for the mother to
show cause and explain the custody of her very own
child.
Private respondent counters that petitioners’ argument
based on Article 213 of the Family Code applies only to
the second part of his petition regarding the custody of
his son. It does not address the first part, which pertains
to his right as the father to see his son. He asserts that
the writ of habeas corpus is available against any person
who restrains the minor’s right to see his father and vice
versa. He avers that the instant petition is merely filed for
delay, for had petitioners really intended to bring the
child before the court in accordance with the new rules
on custody of minors, they would have done so on the
dates specified in the January 23, 2003 and the February
24, 2003 orders of the trial court.
Private respondent maintains that, under the law, he and
petitioner Marie Antonette have shared custody and
parental authority over their son. He alleges that at times
when petitioner Marie Antonette is out of the country as
required of her job as an international flight stewardess,
he, the father, should have custody of their son and not
the maternal grandparents.
As correctly pointed out by the Court of Appeals, the
assailed January 23, 2003 Order of the trial court did not
grant custody of the minor to any of the parties but
merely directed petitioners to produce the minor in court
and explain why they are restraining his liberty. The
assailed order was an interlocutory order precedent to
the trial court’s full inquiry into the issue of custody,
which was still pending before it.
Under Rule 41, Section 1 8 of the Rules of Court, an
interlocutory order is not appealable but the aggrieved
party may file an appropriate special action under Rule
65. The aggrieved party must show that the court gravely
abused its discretion in issuing the interlocutory order. In
the present case, it is incumbent upon petitioners to
show that the trial court gravely abused its discretion in
issuing the order.
Habeas corpus may be resorted to in cases where rightful
custody is withheld from a person entitled
thereto. 9 Under Article 211 10 of the Family Code,
respondent Loran and petitioner Marie Antonette have
joint parental authority over their son and consequently
joint custody. Further, although the couple is
separated de facto, the issue of custody has yet to be
adjudicated by the court. In the absence of a judicial
grant of custody to one parent, both parents are still
entitled to the custody of their child. In the present case,
private respondent’s cause of action is the deprivation of
his right to see his child as alleged in his
petition. 11 Hence, the remedy of habeas corpus is
available to him.
In a petition for habeas corpus, the child’s welfare is the
supreme consideration. The Child and Youth Welfare
Code 12 unequivocally provides that in all questions
regarding the care and custody, among others, of the
child, his welfare shall be the paramount consideration. 13
Again, it bears stressing that the order did not grant
custody of the minor to any of the parties but merely
directed petitioners to produce the minor in court and
explain why private respondent is prevented from seeing
his child. This is in line with the directive in Section 9 14 of
A.M. 03-04-04-SC 15 that within fifteen days after the
filing of the answer or the expiration of the period to file
answer, the court shall issue an order requiring the
respondent (herein petitioners) to present the minor
before the court. This was exactly what the court did.
Moreover, Article 213 of the Family Code deals with the
judicial adjudication of custody and serves as a guideline
for the proper award of custody by the court. Petitioners
can raise it as a counter argument for private
respondent’s petition for custody. But it is not a basis for
preventing the father to see his own child. Nothing in the
said provision disallows a father from seeing or visiting
his child under seven years of age.
In sum, the trial court did not err in issuing the orders
dated January 23, 2003 and February 24, 2003. Hence,
the Court of Appeals properly dismissed the petition for
certiorari against the said orders of the trial court.
WHEREFORE, the petition is DENIED. The Decisiondated
November 10, 2003 and the Resolutiondated March 19,
2004 of the Court of Appeals in CA-G.R. SP No. 75680
are AFFIRMED. Costs against petitioners.
SO ORDERED.
199
 G.R. No. 174485 July 11, 2007
AGNES GAMBOA-HIRSCH Petitioner,
vs.
HON. COURT OF APPEALS and FRANKLIN HARVEY
HIRSCH, Respondents.
RESOLUTION
VELASCO, JR., J.:
This is a petition for certiorari1 under Rule 65 which seeks
to set aside the June 8, 2006 Decision2 of the Court of
Appeals (CA) in CA-G.R. SP No. 94329, which granted
private respondent Franklin Harvey Hirsch (Franklin) joint
custody with petitioner Agnes Gamboa-Hirsch (Agnes) of
their minor daughter Simone Noelle Hirsch (Simone); and
the August 3, 2006 CA Resolution3 denying petitioner’s
Motion for Reconsideration for lack of merit. Petitioner
also prays for the issuance of a temporary restraining
order/injunction preventing the execution and
implementation of the assailed June 8, 2006 CA Decision.
Franklin and Agnes were married on December 23, 2000
in the City of Bacolod, and established their conjugal
dwelling in Diniwid, Boracay Island, Malay, Aklan. On
December 21, 2002, a child was born to them and was
named Simone. In 2005, the couple started to have
marital problems as Agnes wanted to stay in Makati City,
while Franklin insisted that they stay in Boracay Island. On
March 23, 2006, Agnes came to their conjugal home in
Boracay, and asked for money and for Franklin’s
permission for her to bring their daughter to Makati City
for a brief vacation. Franklin readily agreed, but soon
thereafter discovered that neither Agnes nor their
daughter Simone would be coming back to Boracay.
Franklin then filed a petition for habeas corpus before the
CA for Agnes to produce Simone in court. On May 19,
2006, the CA issued a Resolution which ordered that a
writ of habeas corpus be issued ordering that Simone be
brought before said court on May 26, 2006. After a series
of hearings and presentation of evidence, the CA, on
June 8, 2006, promulgated the assailed Decision granting
Franklin joint custody with Agnes of their minor child.
Agnes filed a Motion for Reconsideration of this Decision,
which was denied in the CA’s August 3, 2006 Resolution
for lack of merit.
Petitioner now comes before this Court praying that we
set aside the June 8, 2006 Decision and August 3, 2006
Resolution of the CA, and that we issue a temporary
restraining order/injunction on the execution and
implementation of the assailed rulings of the CA based
on the following grounds:
(A)
The Court of Appeals seriously erred and acted
with grave abuse of discretion amounting to
lack or excess of jurisdiction when it ruled upon,
granted, and decided the matter of custody x x
x during the May 26, 2006 hearing conducted
on the petition for writ of habeas corpus in
relation to and with custody of a minor under
A.M. No. 03-03-04-SC, C.A.-GR SP. No. 94329,
as no reception of evidence to support said
decision was had thereon, and the honorable
court merely based its decision on mere
conjectures and presumptions.
(B)
The Court of Appeals seriously erred and acted
with grave abuse of discretion amounting to
lack or excess of jurisdiction when it denied the
motion for reconsideration filed by [petitioner
Agnes] and only made addendums thereon
appertaining to the custody aspect in its
Decision that the same is deemed necessary for
the protection of the interest of the child and a
mere temporary arrangement while the case
involving the herein parties are pending before
the Regional Trial Court x x x quite contrary to
its pronouncements during the May 26, 2006
hearing when the matter of custody was
insisted upon by [respondent Franklin].
(C)
The Court of Appeals seriously erred and acted
with grave abuse of discretion amounting to
lack or excess of jurisdiction when it granted
joint custody in utter disregard of the
provisions of the Family Code, as to minors
seven (7) years of age and below, in relation to
the jurisprudence and pronouncements laid
down by the Honorable Supreme Court on the
matter of the said provision.4
Acting on the petition, this Court issued its October 2,
2006 Resolution denying petitioner’s prayer for the
issuance of a temporary restraining order. Petitioner then
filed a Motion for Reconsideration of this Resolution, and
on April 11, 2007, this Court granted petitioner’s Motion
for Reconsideration, issued a temporary restraining order,
and awarded the sole custody of the minor, Simone, to
petitioner.
This petition has merit.
200
The CA committed grave abuse of discretion when it
granted joint custody of the minor child to both parents.
The Convention on the Rights of the Child provides that
"in all actions concerning children, whether undertaken
by public or private social welfare institutions, courts of
law, administrative authorities or legislative bodies, the
best interests of the child shall be a primary
consideration (emphasis supplied)."5 The Child and Youth
Welfare Code, in the same way, unequivocally provides
that in all questions regarding the care and custody,
among others, of the child, his/her welfare shall be the
paramount consideration.6
The so-called "tender-age presumption" under Article
213 of the Family Code may be overcome only by
compelling evidence of the mother’s unfitness. The
mother is 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.7 Here, the mother was not shown to be
unsuitable or grossly incapable of caring for her minor
child. All told, no compelling reason has been adduced to
wrench the child from the mother’s custody.1avvphi1
WHEREFORE, premises considered, the petition is GIVEN
DUE COURSE. The June 8, 2006 Decision and August 3,
2006 Resolution of the CA are hereby SET ASIDE. Sole
custody over Simone Noelle Hirsch is
hereby AWARDED to the mother, petitioner Agnes
Gamboa-Hirsch.
SO ORDERED.
G.R. No. 168785 February 5, 2010
HERALD BLACK DACASIN, Petitioner,
vs.
SHARON DEL MUNDO DACASIN, Respondent.
DECISION
CARPIO, J.:
The Case
For review1 is a dismissal2 of a suit to enforce a post-
foreign divorce child custody agreement for lack of
jurisdiction.
The Facts
Petitioner Herald Dacasin (petitioner), American, and
respondent Sharon Del Mundo Dacasin (respondent),
Filipino, were married in Manila in April 1994. They have
one daughter, Stephanie, born on 21 September 1995. In
June 1999, respondent sought and obtained from the
Circuit Court, 19th Judicial Circuit, Lake County, Illinois
(Illinois court) a divorce decree against petitioner.3 In its
ruling, the Illinois court dissolved the marriage of
petitioner and respondent, awarded to respondent sole
custody of Stephanie and retained jurisdiction over the
case for enforcement purposes.
On 28 January 2002, petitioner and respondent executed
in Manila a contract (Agreement4 ) for the joint custody
of Stephanie. The parties chose Philippine courts as
exclusive forum to adjudicate disputes arising from the
Agreement. Respondent undertook to obtain from the
Illinois court an order "relinquishing" jurisdiction to
Philippine courts.
In 2004, petitioner sued respondent in the Regional Trial
Court of Makati City, Branch 60 (trial court) to enforce the
Agreement. Petitioner alleged that in violation of the
Agreement, respondent exercised sole custody over
Stephanie.
Respondent sought the dismissal of the complaint for,
among others, lack of jurisdiction because of the Illinois
court’s retention of jurisdiction to enforce the divorce
decree.
The Ruling of the Trial Court
In its Order dated 1 March 2005, the trial court sustained
respondent’s motion and dismissed the case for lack of
jurisdiction. The trial court held that: (1) it is precluded
from taking cognizance over the suit considering the
Illinois court’s retention of jurisdiction to enforce its
divorce decree, including its order awarding sole custody
of Stephanie to respondent; (2) the divorce decree is
binding on petitioner following the "nationality rule"
prevailing in this jurisdiction;5 and (3) the Agreement is
void for contravening Article 2035, paragraph 5 of the
Civil Code6 prohibiting compromise agreements on
jurisdiction.7
Petitioner sought reconsideration, raising the new
argument that the divorce decree obtained by
respondent is void. Thus, the divorce decree is no bar to
the trial court’s exercise of jurisdiction over the case.
In its Order dated 23 June 2005, the trial court denied
reconsideration, holding that unlike in the case of
respondent, the divorce decree is binding on petitioner
under the laws of his nationality.
201
Hence, this petition.
Petitioner submits the following alternative theories for
the validity of the Agreement to justify its enforcement
by the trial court: (1) the Agreement novated the valid
divorce decree, modifying the terms of child custody
from sole (maternal) to joint;8 or (2) the Agreement is
independent of the divorce decree obtained by
respondent.
The Issue
The question is whether the trial court has jurisdiction to
take cognizance of petitioner’s suit and enforce the
Agreement on the joint custody of the parties’ child.
The Ruling of the Court
The trial court has jurisdiction to entertain petitioner’s
suit but not to enforce the Agreement which is void.
However, factual and equity considerations militate
against the dismissal of petitioner’s suit and call for the
remand of the case to settle the question of Stephanie’s
custody.
Regional Trial Courts Vested With Jurisdiction
to Enforce Contracts
Subject matter jurisdiction is conferred by law. At the
time petitioner filed his suit in the trial court, statutory
law vests on Regional Trial Courts exclusive original
jurisdiction over civil actions incapable of pecuniary
estimation.9 An action for specific performance, such as
petitioner’s suit to enforce the Agreement on joint child
custody, belongs to this species of actions.10 Thus,
jurisdiction-wise, petitioner went to the right court.
Indeed, the trial court’s refusal to entertain petitioner’s
suit was grounded not on its lack of power to do so but
on its thinking that the Illinois court’s divorce decree
stripped it of jurisdiction. This conclusion is unfounded.
What the Illinois court retained was "jurisdiction x x x for
the purpose of enforcing all and sundry the various
provisions of [its] Judgment for
Dissolution."11 Petitioner’s suit seeks the enforcement not
of the "various provisions" of the divorce decree but of
the post-divorce Agreement on joint child custody. Thus,
the action lies beyond the zone of the Illinois court’s so-
called "retained jurisdiction."
Petitioner’s Suit Lacks Cause of Action
The foregoing notwithstanding, the trial court cannot
enforce the Agreement which is contrary to law.
In this jurisdiction, parties to a contract are free to
stipulate the terms of agreement subject to the minimum
ban on stipulations contrary to law, morals, good
customs, public order, or public policy.12 Otherwise, the
contract is denied legal existence, deemed "inexistent
and void from the beginning."13 For lack of relevant
stipulation in the Agreement, these and other ancillary
Philippine substantive law serve as default parameters to
test the validity of the Agreement’s joint child custody
stipulations.14
At the time the parties executed the Agreement on 28
January 2002, two facts are undisputed: (1) Stephanie was
under seven years old (having been born on 21
September 1995); and (2) petitioner and respondent were
no longer married under the laws of the United States
because of the divorce decree. The relevant Philippine
law on child custody for spouses separated in fact or in
law15 (under the second paragraph of Article 213 of the
Family Code) is also undisputed: "no child under seven
years of age shall be separated from the mother x x
x."16 (This statutory awarding of sole parental custody17 to
the mother is mandatory,18 grounded on sound policy
consideration,19 subject only to a narrow exception not
alleged to obtain here.20 ) Clearly then, the Agreement’s
object to establish a post-divorce joint custody regime
between respondent and petitioner over their child under
seven years old contravenes Philippine law.
The Agreement is not only void ab initio for being
contrary to law, it has also been repudiated by the
mother when she refused to allow joint custody by the
father. The Agreement would be valid if the spouses have
not divorced or separated because the law provides for
joint parental authority when spouses live
together.21 However, upon separation of the spouses, the
mother takes sole custody under the law if the child is
below seven years old and any agreement to the contrary
is void. Thus, the law suspends the joint custody regime
for (1) children under seven of (2) separated or divorced
spouses. Simply put, for a child within this age bracket
(and for commonsensical reasons), the law decides for
the separated or divorced parents how best to take care
of the child and that is to give custody to the separated
mother. Indeed, the separated parents cannot contract
away the provision in the Family Code on the maternal
custody of children below seven years anymore than they
can privately agree that a mother who is unemployed,
immoral, habitually drunk, drug addict, insane or afflicted
with a communicable disease will have sole custody of a
child under seven as these are reasons deemed
compelling to preclude the application of the exclusive
maternal custody regime under the second paragraph of
Article 213.22
202
It will not do to argue that the second paragraph of
Article 213 of the Family Code applies only to judicial
custodial agreements based on its text that "No child
under seven years of age shall be separated from the
mother, unless the court finds compelling reasons to
order otherwise." To limit this provision’s enforceability to
court sanctioned agreements while placing private
agreements beyond its reach is to sanction a double
standard in custody regulation of children under seven
years old of separated parents. This effectively empowers
separated parents, by the simple expedient of avoiding
the courts, to subvert a legislative policy vesting to the
separated mother sole custody of her children under
seven years of age "to avoid a tragedy where a mother
has seen her baby torn away from her."23 This ignores the
legislative basis that "[n]o man can sound the deep
sorrows of a mother who is deprived of her child of
tender age."24
It could very well be that Article 213’s bias favoring one
separated parent (mother) over the other (father)
encourages paternal neglect, presumes incapacity for
joint parental custody, robs the parents of custodial
options, or hijacks decision-making between the
separated parents.25 However, these are objections which
question the law’s wisdom not its validity or uniform
enforceability. The forum to air and remedy these
grievances is the legislature, not this Court. At any rate,
the rule’s seeming harshness or undesirability is
tempered by ancillary agreements the separated parents
may wish to enter such as granting the father visitation
and other privileges. These arrangements are not
inconsistent with the regime of sole maternal custody
under the second paragraph of Article 213 which merely
grants to the mother final authority on the care and
custody of the minor under seven years of age, in case of
disagreements.1avvphi1
Further, the imposed custodial regime under the second
paragraph of Article 213 is limited in duration, lasting
only until the child’s seventh year. From the eighth year
until the child’s emancipation, the law gives the
separated parents freedom, subject to the usual
contractual limitations, to agree on custody regimes they
see fit to adopt. Lastly, even supposing that petitioner
and respondent are not barred from entering into the
Agreement for the joint custody of Stephanie,
respondent repudiated the Agreement by asserting sole
custody over Stephanie. Respondent’s act effectively
brought the parties back to ambit of the default custodial
regime in the second paragraph of Article 213 of the
Family Code vesting on respondent sole custody of
Stephanie.
Nor can petitioner rely on the divorce decree’s alleged
invalidity - not because the Illinois court lacked
jurisdiction or that the divorce decree violated Illinois law,
but because the divorce was obtained by his Filipino
spouse26 - to support the Agreement’s enforceability. The
argument that foreigners in this jurisdiction are not
bound by foreign divorce decrees is hardly novel. Van
Dorn v. Romillo27 settled the matter by holding that an
alien spouse of a Filipino is bound by a divorce decree
obtained abroad.28 There, we dismissed the alien
divorcee’s Philippine suit for accounting of alleged post-
divorce conjugal property and rejected his submission
that the foreign divorce (obtained by the Filipino spouse)
is not valid in this jurisdiction in this wise:
There can be no question as to the validity of that
Nevada divorce in any of the States of the United States.
The decree is binding on private respondent as an
American citizen. For instance, private respondent cannot
sue petitioner, as her husband, in any State of the Union.
What he is contending in this case is that the divorce is
not valid and binding in this jurisdiction, the same being
contrary to local law and public policy.
It is true that owing to the nationality principle embodied
in Article 15 of the Civil Code, only Philippine nationals
are covered by the policy against absolute divorces the
same being considered contrary to our concept of public
policy and morality. However, aliens may obtain divorces
abroad, which may be recognized in the Philippines,
provided they are valid according to their national law. In
this case, the divorce in Nevada released private
respondent from the marriage from the standards of
American law, under which divorce dissolves the
marriage.
xxxx
Thus, pursuant to his national law, private respondent is
no longer the husband of petitioner. He would have no
standing to sue in the case below as petitioner’s husband
entitled to exercise control over conjugal assets. As he is
bound by the Decision of his own country’s Court, which
validly exercised jurisdiction over him, and whose
decision he does not repudiate, he is estopped by his
own representation before said Court from asserting his
right over the alleged conjugal property. (Emphasis
supplied)
We reiterated Van Dorn in Pilapil v. Ibay-Somera29 to
dismiss criminal complaints for adultery filed by the alien
divorcee (who obtained the foreign divorce decree)
against his former Filipino spouse because he no longer
qualified as "offended spouse" entitled to file the
complaints under Philippine procedural rules. Thus, it
should be clear by now that a foreign divorce decree
carries as much validity against the alien divorcee in this
203
jurisdiction as it does in the jurisdiction of the alien’s
nationality, irrespective of who obtained the divorce.
The Facts of the Case and Nature of Proceeding
Justify Remand
Instead of ordering the dismissal of petitioner’s suit, the
logical end to its lack of cause of action, we remand the
case for the trial court to settle the question of
Stephanie’s custody. Stephanie is now nearly 15 years
old, thus removing the case outside of the ambit of the
mandatory maternal custody regime under Article 213
and bringing it within coverage of the default standard
on child custody proceedings – the best interest of the
child.30 As the question of custody is already before the
trial court and the child’s parents, by executing the
Agreement, initially showed inclination to share custody,
it is in the interest of swift and efficient rendition of
justice to allow the parties to take advantage of the
court’s jurisdiction, submit evidence on the custodial
arrangement best serving Stephanie’s interest, and let the
trial court render judgment. This disposition is consistent
with the settled doctrine that in child custody
proceedings, equity may be invoked to serve the child’s
best interest.31
WHEREFORE, we REVERSE the Orders dated 1 March
2005 and 23 June 2005 of the Regional Trial Court of
Makati City, Branch 60. The case is REMANDED for
further proceedings consistent with this ruling.
SO ORDERED.
Republic Act No. 7610 June 17, 1992
AN ACT PROVIDING FOR STRONGER DETERRENCE AND
SPECIAL PROTECTION AGAINST CHILD ABUSE,
EXPLOITATION AND DISCRIMINATION, AND FOR OTHER
PURPOSES
Be it enacted by the Senate and House of
Representatives of the Philippines in Congress
assembled:
ARTICLE I: Title, Policy, Principles and Definitions of Terms
Section 1. Title. – This Act shall be known as the "Special
Protection of Children Against Abuse, Exploitation and
Discrimination Act."
Section 2. Declaration of State Policy and Principles. – It is
hereby declared to be the policy of the State to provide
special protection to children from all firms of abuse,
neglect, cruelty exploitation and discrimination and other
conditions, prejudicial their development; provide
sanctions for their commission and carry out a program
for prevention and deterrence of and crisis intervention
in situations of child abuse, exploitation and
discrimination. The State shall intervene on behalf of the
child when the parent, guardian, teacher or person
having care or custody of the child fails or is unable to
protect the child against abuse, exploitation and
discrimination or when such acts against the child are
committed by the said parent, guardian, teacher or
person having care and custody of the
same.1awphi1@alf
It shall be the policy of the State to protect and
rehabilitate children gravely threatened or endangered
by circumstances which affect or will affect their survival
and normal development and over which they have no
control.
The best interests of children shall be the paramount
consideration in all actions concerning them, whether
undertaken by public or private social welfare institutions,
courts of law, administrative authorities, and legislative
bodies, consistent with the principle of First Call for
Children as enunciated in the United Nations Convention
of the Rights of the Child. Every effort shall be exerted to
promote the welfare of children and enhance their
opportunities for a useful and happy life.
Section 3. Definition of Terms. –
(a) "Children" refers to person below eighteen
(18) years of age or those over but are unable
to fully take care of themselves or protect
themselves from abuse, neglect, cruelty,
exploitation or discrimination because of a
physical or mental disability or condition;
(b) "Child abuse" refers to the maltreatment,
whether habitual or not, of the child which
includes any of the following:
(1) Psychological and physical abuse,
neglect, cruelty, sexual abuse and
emotional maltreatment;
(2) Any act by deeds or words which
debases, degrades or demeans the
intrinsic worth and dignity of a child
as a human being;
(3) Unreasonable deprivation of his
basic needs for survival, such as food
and shelter; or
204
 (4) Failure to immediately give
medical treatment to an injured child
resulting in serious impairment of his
growth and development or in his
permanent incapacity or death.
(c) "Circumstances which gravely threaten or
endanger the survival and normal development
of children" include, but are not limited to, the
following;
(1) Being in a community where there
is armed conflict or being affected by
armed conflict-related activities;
(2) Working under conditions
hazardous to life, safety and normal
which unduly interfere with their
normal development;
(3) Living in or fending for themselves
in the streets of urban or rural areas
without the care of parents or a
guardian or basic services needed for
a good quality of life;
(4) Being a member of a indigenous
cultural community and/or living
under conditions of extreme poverty
or in an area which is underdeveloped
and/or lacks or has inadequate access
to basic services needed for a good
quality of life;
(5) Being a victim of a man-made or
natural disaster or calamity; or
(6) Circumstances analogous to those
abovestated which endanger the life,
safety or normal development of
children.
(d) "Comprehensive program against child
abuse, exploitation and discrimination" refers to
the coordinated program of services and
facilities to protected children against:
(1) Child Prostitution and other sexual
abuse;
(2) Child trafficking;
(3) Obscene publications and indecent
shows;
(4) Other acts of abuses; and
(5) Circumstances which threaten or
endanger the survival and normal
development of children.1awphi1Ÿ
ARTICLE II: Program on Child Abuse, Exploitation and
Discrimination
Section 4. Formulation of the Program. – There shall be a
comprehensive program to be formulated, by the
Department of Justice and the Department of Social
Welfare and Development in coordination with other
government agencies and private sector concerned,
within one (1) year from the effectivity of this Act, to
protect children against child prostitution and other
sexual abuse; child trafficking, obscene publications and
indecent shows; other acts of abuse; and circumstances
which endanger child survival and normal development.
ARTICLE III: Child Prostitution and Other Sexual Abuse
Section 5. Child Prostitution and Other Sexual Abuse. –
Children, whether male or female, who for money, profit,
or any other consideration or due to the coercion or
influence of any adult, syndicate or group, indulge in
sexual intercourse or lascivious conduct, are deemed to
be children exploited in prostitution and other sexual
abuse.
The penalty of reclusion temporal in its medium period
to reclusion perpetua shall be imposed upon the
following:
(a) Those who engage in or promote, facilitate
or induce child prostitution which include, but
are not limited to, the following:
(1) Acting as a procurer of a child
prostitute;
(2) Inducing a person to be a client of
a child prostitute by means of written
or oral advertisements or other similar
means;
(3) Taking advantage of influence or
relationship to procure a child as
prostitute;
(4) Threatening or using violence
towards a child to engage him as a
prostitute; or
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 (5) Giving monetary consideration
goods or other pecuniary benefit to a
child with intent to engage such child
in prostitution.
(b) Those who commit the act of sexual
intercourse of lascivious conduct with a child
exploited in prostitution or subject to other
sexual abuse; Provided, That when the victims is
under twelve (12) years of age, the perpetrators
shall be prosecuted under Article 335,
paragraph 3, for rape and Article 336 of Act No.
3815, as amended, the Revised Penal Code, for
rape or lascivious conduct, as the case may be:
Provided, That the penalty for lascivious
conduct when the victim is under twelve (12)
years of age shall be reclusion temporal in its
medium period; and
(c) Those who derive profit or advantage
therefrom, whether as manager or owner of the
establishment where the prostitution takes
place, or of the sauna, disco, bar, resort, place
of entertainment or establishment serving as a
cover or which engages in prostitution in
addition to the activity for which the license has
been issued to said establishment.
Section 6. Attempt To Commit Child Prostitution. – There
is an attempt to commit child prostitution under Section
5, paragraph (a) hereof when any person who, not being
a relative of a child, is found alone with the said child
inside the room or cubicle of a house, an inn, hotel,
motel, pension house, apartelle or other similar
establishments, vessel, vehicle or any other hidden or
secluded area under circumstances which would lead a
reasonable person to believe that the child is about to be
exploited in prostitution and other sexual abuse.
There is also an attempt to commit child prostitution,
under paragraph (b) of Section 5 hereof when any person
is receiving services from a child in a sauna parlor or
bath, massage clinic, health club and other similar
establishments. A penalty lower by two (2) degrees than
that prescribed for the consummated felony under
Section 5 hereof shall be imposed upon the principals of
the attempt to commit the crime of child prostitution
under this Act, or, in the proper case, under the Revised
Penal Code.
ARTICLE IV: Child Trafficking
Section 7. Child Trafficking. – Any person who shall
engage in trading and dealing with children including,
but not limited to, the act of buying and selling of a child
for money, or for any other consideration, or barter, shall
suffer the penalty of reclusion temporal to reclusion
perpetua. The penalty shall be imposed in its maximum
period when the victim is under twelve (12) years of age.
Section 8. Attempt to Commit Child Trafficking. – There is
an attempt to commit child trafficking under Section 7 of
this Act:1awphi1@alf
(a) When a child travels alone to a foreign
country without valid reason therefor and
without clearance issued by the Department of
Social Welfare and Development or written
permit or justification from the child's parents
or legal guardian;
(c) When a person, agency, establishment or
child-caring institution recruits women or
couples to bear children for the purpose of
child trafficking; or
(d) When a doctor, hospital or clinic official or
employee, nurse, midwife, local civil registrar or
any other person simulates birth for the
purpose of child trafficking; or
(e) When a person engages in the act of finding
children among low-income families, hospitals,
clinics, nurseries, day-care centers, or other
child-during institutions who can be offered for
the purpose of child trafficking.
A penalty lower two (2) degrees than that prescribed for
the consummated felony under Section 7 hereof shall be
imposed upon the principals of the attempt to commit
child trafficking under this Act.
ARTICLE V: Obscene Publications and Indecent Shows
Section 9. Obscene Publications and Indecent Shows. –
Any person who shall hire, employ, use, persuade, induce
or coerce a child to perform in obscene exhibitions and
indecent shows, whether live or in video, or model in
obscene publications or pornographic materials or to sell
or distribute the said materials shall suffer the penalty of
prision mayor in its medium period.
If the child used as a performer, subject or
seller/distributor is below twelve (12) years of age, the
penalty shall be imposed in its maximum period.
Any ascendant, guardian, or person entrusted in any
capacity with the care of a child who shall cause and/or
allow such child to be employed or to participate in an
206
obscene play, scene, act, movie or show or in any other
acts covered by this section shall suffer the penalty of
prision mayor in its medium period.
ARTICLE VI: Other Acts of Abuse
Section 10. Other Acts of Neglect, Abuse, Cruelty or
Exploitation and Other Conditions Prejudicial to the Child's
Development. –
(a) Any person who shall commit any other acts
of child abuse, cruelty or exploitation or to be
responsible for other conditions prejudicial to
the child's development including those
covered by Article 59 of Presidential Decree No.
603, as amended, but not covered by the
Revised Penal Code, as amended, shall suffer
the penalty of prision mayor in its minimum
period.
(b) Any person who shall keep or have in his
company a minor, twelve (12) years or under or
who in ten (10) years or more his junior in any
public or private place, hotel, motel, beer joint,
discotheque, cabaret, pension house, sauna or
massage parlor, beach and/or other tourist
resort or similar places shall suffer the penalty
of prision mayor in its maximum period and a
fine of not less than Fifty thousand pesos
(P50,000): Provided, That this provision shall not
apply to any person who is related within the
fourth degree of consanguinity or affinity or
any bond recognized by law, local custom and
tradition or acts in the performance of a social,
moral or legal duty.
(c) Any person who shall induce, deliver or offer
a minor to any one prohibited by this Act to
keep or have in his company a minor as
provided in the preceding paragraph shall
suffer the penalty of prision mayor in its
medium period and a fine of not less than Forty
thousand pesos (P40,000); Provided, however,
That should the perpetrator be an ascendant,
stepparent or guardian of the minor, the
penalty to be imposed shall be prision mayor in
its maximum period, a fine of not less than Fifty
thousand pesos (P50,000), and the loss of
parental authority over the minor.
(d) Any person, owner, manager or one
entrusted with the operation of any public or
private place of accommodation, whether for
occupancy, food, drink or otherwise, including
residential places, who allows any person to
take along with him to such place or places any
minor herein described shall be imposed a
penalty of prision mayor in its medium period
and a fine of not less than Fifty thousand pesos
(P50,000), and the loss of the license to operate
such a place or establishment.
(e) Any person who shall use, coerce, force or
intimidate a street child or any other child to;
(1) Beg or use begging as a means of
living;
(2) Act as conduit or middlemen in
drug trafficking or pushing; or
(3) Conduct any illegal activities, shall
suffer the penalty of prision
correccional in its medium period to
reclusion perpetua.
For purposes of this Act, the penalty for the commission
of acts punishable under Articles 248, 249, 262,
paragraph 2, and 263, paragraph 1 of Act No. 3815, as
amended, the Revised Penal Code, for the crimes of
murder, homicide, other intentional mutilation, and
serious physical injuries, respectively, shall be reclusion
perpetua when the victim is under twelve (12) years of
age. The penalty for the commission of acts punishable
under Article 337, 339, 340 and 341 of Act No. 3815, as
amended, the Revised Penal Code, for the crimes of
qualified seduction, acts of lasciviousness with the
consent of the offended party, corruption of minors, and
white slave trade, respectively, shall be one (1) degree
higher than that imposed by law when the victim is under
twelve (12) years age.
The victim of the acts committed under this section shall
be entrusted to the care of the Department of Social
Welfare and Development.
ARTICLE VII: Sanctions for Establishments or Enterprises
Section 11. Sanctions of Establishments or Enterprises
which Promote, Facilitate, or Conduct Activities
Constituting Child Prostitution and Other Sexual Abuse,
Child Trafficking, Obscene Publications and Indecent
Shows, and Other Acts of Abuse. – All establishments and
enterprises which promote or facilitate child prostitution
and other sexual abuse, child trafficking, obscene
publications and indecent shows, and other acts of abuse
shall be immediately closed and their authority or license
to operate cancelled, without prejudice to the owner or
manager thereof being prosecuted under this Act and/or
the Revised Penal Code, as amended, or special laws. A
207
sign with the words "off limits" shall be conspicuously
displayed outside the establishments or enterprises by
the Department of Social Welfare and Development for
such period which shall not be less than one (1) year, as
the Department may determine. The unauthorized
removal of such sign shall be punishable by prision
correccional.
An establishment shall be deemed to promote or
facilitate child prostitution and other sexual abuse, child
trafficking, obscene publications and indecent shows, and
other acts of abuse if the acts constituting the same
occur in the premises of said establishment under this
Act or in violation of the Revised Penal Code, as
amended. An enterprise such as a sauna, travel agency,
or recruitment agency which: promotes the
aforementioned acts as part of a tour for foreign tourists;
exhibits children in a lewd or indecent show; provides
child masseurs for adults of the same or opposite sex and
said services include any lascivious conduct with the
customers; or solicits children or activities constituting
the aforementioned acts shall be deemed to have
committed the acts penalized herein.
ARTICLE VIII: Working Children
Section 12. Employment of Children. – Children below
fifteen (15) years of age may be employed except:
(1) When a child works directly under the sole
responsibility of his parents or legal guardian
and where only members of the employer's
family are employed: Provided, however, That
his employment neither endangers his life,
safety and health and morals, nor impairs his
normal development: Provided, further, That
the parent or legal guardian shall provide the
said minor child with the prescribed primary
and/or secondary education; or
(2) When a child's employment or participation
in public & entertainment or information
through cinema, theater, radio or television is
essential: Provided, The employment contract
concluded by the child's parent or guardian,
with the express agreement of the child
concerned, if possible, and the approval of the
Department of Labor and Employment:
Provided, That the following requirements in all
instances are strictly complied with:
(a) The employer shall ensure the protection,
health, safety and morals of the child;
(b) the employer shall institute measures to
prevent the child's exploitation or
discrimination taking into account the system
and level of remuneration, and the duration
and arrangement of working time; and;
(c) The employer shall formulate and
implement, subject to the approval and
supervision of competent authorities, a
continuing program for training and skill
acquisition of the child.
In the above exceptional cases where any such child may
be employed, the employer shall first secure, before
engaging such child, a work permit from the Department
of Labor and Employment which shall ensure observance
of the above requirement.
The Department of Labor Employment shall promulgate
rules and regulations necessary for the effective
implementation of this Section.
Section 13. Non-formal Education for Working Children. –
The Department of Education, Culture and Sports shall
promulgate a course design under its non-formal
education program aimed at promoting the intellectual,
moral and vocational efficiency of working children who
have not undergone or finished elementary or secondary
education. Such course design shall integrate the
learning process deemed most effective under given
circumstances.
Section 14. Prohibition on the Employment of Children in
Certain Advertisements. – No person shall employ child
models in all commercials or advertisements promoting
alcoholic beverages, intoxicating drinks, tobacco and its
byproducts and violence.
Section 15. Duty of Employer. – Every employer shall
comply with the duties provided for in Articles 108 and
109 of Presidential Decree No. 603.
Section 16. Penalties. – Any person who shall violate any
provision of this Article shall suffer the penalty of a fine
of not less than One thousand pesos (P1,000) but not
more than Ten thousand pesos (P10,000) or
imprisonment of not less than three (3) months but not
more than three (3) years, or both at the discretion of the
court; Provided, That, in case of repeated violations of the
provisions of this Article, the offender's license to operate
shall be revoked.
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ARTICLE IX: Children of Indigenous Cultural Communities
Section 17. Survival, Protection and Development. – In
addition to the rights guaranteed to children under this
Act and other existing laws, children of indigenous
cultural communities shall be entitled to protection,
survival and development consistent with the customs
and traditions of their respective communities.
Section 18. System of and Access to Education. – The
Department of Education, Culture and Sports shall
develop and institute an alternative system of education
for children of indigenous cultural communities which
culture-specific and relevant to the needs of and the
existing situation in their communities. The Department
of Education, Culture and Sports shall also accredit and
support non-formal but functional indigenous
educational programs conducted by non-government
organizations in said communities.
Section 19. Health and Nutrition. – The delivery of basic
social services in health and nutrition to children of
indigenous cultural communities shall be given priority
by all government agencies concerned. Hospitals and
other health institution shall ensure that children of
indigenous cultural communities are given equal
attention. In the provision of health and nutrition services
to children of indigenous cultural communities,
indigenous health practices shall be respected and
recognized.
Section 20. Discrimination. – Children of indigenous
cultural communities shall not be subjected to any and all
forms of discrimination.
Any person who discriminate against children of
indigenous cultural communities shall suffer a penalty of
arresto mayor in its maximum period and a fine of not
less than Five thousand pesos (P5,000) more than Ten
thousand pesos (P10,000).
Section 21. Participation. – Indigenous cultural
communities, through their duly-designated or
appointed representatives shall be involved in planning,
decision-making implementation, and evaluation of all
government programs affecting children of indigenous
cultural communities. Indigenous institution shall also be
recognized and respected.
ARTICLE X: Children in Situations of Armed Conflict
Section 22. Children as Zones of Peace. – Children are
hereby declared as Zones of Peace. It shall be the
responsibility of the State and all other sectors concerned
to resolve armed conflicts in order to promote the goal
of children as zones of peace. To attain this objective, the
following policies shall be observed.
(a) Children shall not be the object of attack
and shall be entitled to special respect. They
shall be protected from any form of threat,
assault, torture or other cruel, inhumane or
degrading treatment;
(b) Children shall not be recruited to become
members of the Armed Forces of the
Philippines of its civilian units or other armed
groups, nor be allowed to take part in the
fighting, or used as guides, couriers, or spies;
(c) Delivery of basic social services such as
education, primary health and emergency relief
services shall be kept unhampered;
(d) The safety and protection of those who
provide services including those involved in
fact-finding missions from both government
and non-government institutions shall be
ensured. They shall not be subjected to undue
harassment in the performance of their work;
(e) Public infrastructure such as schools,
hospitals and rural health units shall not be
utilized for military purposes such as command
posts, barracks, detachments, and supply
depots; and
(f) All appropriate steps shall be taken to
facilitate the reunion of families temporarily
separated due to armed conflict.
Section 23. Evacuation of Children During Armed
Conflict. – Children shall be given priority during
evacuation as a result of armed conflict. Existing
community organizations shall be tapped to look after
the safety and well-being of children during evacuation
operations. Measures shall be taken to ensure that
children evacuated are accompanied by persons
responsible for their safety and well-being.
Section 24. Family Life and Temporary Shelter. –
Whenever possible, members of the same family shall be
housed in the same premises and given separate
accommodation from other evacuees and provided with
facilities to lead a normal family life. In places of
temporary shelter, expectant and nursing mothers and
children shall be given additional food in proportion to
their physiological needs. Whenever feasible, children
shall be given opportunities for physical exercise, sports
and outdoor games.
209
Section 25. Rights of Children Arrested for Reasons
Related to Armed Conflict. – Any child who has been
arrested for reasons related to armed conflict, either as
combatant, courier, guide or spy is entitled to the
following rights;
(a) Separate detention from adults except
where families are accommodated as family
units;
(b) Immediate free legal assistance;
(c) Immediate notice of such arrest to the
parents or guardians of the child; and
(d) Release of the child on recognizance within
twenty-four (24) hours to the custody of the
Department of Social Welfare and Development
or any responsible member of the community
as determined by the court.
If after hearing the evidence in the proper proceedings
the court should find that the aforesaid child committed
the acts charged against him, the court shall determine
the imposable penalty, including any civil liability
chargeable against him. However, instead of
pronouncing judgment of conviction, the court shall
suspend all further proceedings and shall commit such
child to the custody or care of the Department of Social
Welfare and Development or to any training institution
operated by the Government, or duly-licensed agencies
or any other responsible person, until he has had reached
eighteen (18) years of age or, for a shorter period as the
court may deem proper, after considering the reports
and recommendations of the Department of Social
Welfare and Development or the agency or responsible
individual under whose care he has been committed.
The aforesaid child shall subject to visitation and
supervision by a representative of the Department of
Social Welfare and Development or any duly-licensed
agency or such other officer as the court may designate
subject to such conditions as it may prescribe.
The aforesaid child whose sentence is suspended can
appeal from the order of the court in the same manner as
appeals in criminal cases.
Section 26. Monitoring and Reporting of Children in
Situations of Armed Conflict. – The chairman of the
barangay affected by the armed conflict shall submit the
names of children residing in said barangay to the
municipal social welfare and development officer within
twenty-four (24) hours from the occurrence of the armed
conflict.
ARTICLE XI: Remedial Procedures
Section 27. Who May File a Complaint. – Complaints on
cases of unlawful acts committed against the children as
enumerated herein may be filed by the following:
(a) Offended party;
(b) Parents or guardians;
(c) Ascendant or collateral relative within the
third degree of consanguinity;1awphi1@ITC
(d) Officer, social worker or representative of a
licensed child-caring institution;
(e) Officer or social worker of the Department
of Social Welfare and Development;
(f) Barangay chairman; or
(g) At least three (3) concerned responsible
citizens where the violation occurred.
Section 28. Protective Custody of the Child. – The
offended party shall be immediately placed under the
protective custody of the Department of Social Welfare
and Development pursuant to Executive Order No. 56,
series of 1986. In the regular performance of this
function, the officer of the Department of Social Welfare
and Development shall be free from any administrative,
civil or criminal liability. Custody proceedings shall be in
accordance with the provisions of Presidential Decree No.
603.
Section 29. Confidentiality. – At the instance of the
offended party, his name may be withheld from the
public until the court acquires jurisdiction over the case.
It shall be unlawful for any editor, publisher, and reporter
or columnist in case of printed materials, announcer or
producer in case of television and radio broadcasting,
producer and director of the film in case of the movie
industry, to cause undue and sensationalized publicity of
any case of violation of this Act which results in the moral
degradation and suffering of the offended
party.Lawphi1@alf
Section 30. Special Court Proceedings. – Cases involving
violations of this Act shall be heard in the chambers of
the judge of the Regional Trial Court duly designated as
Juvenile and Domestic Court.
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Any provision of existing law to the contrary
notwithstanding and with the exception of habeas
corpus, election cases, and cases involving detention
prisoners and persons covered by Republic Act No. 4908,
all courts shall give preference to the hearing or
disposition of cases involving violations of this Act.
ARTICLE XII: Common Penal Provisions
Section 31. Common Penal Provisions. –
(a) The penalty provided under this Act shall be
imposed in its maximum period if the offender
has been previously convicted under this Act;
(b) When the offender is a corporation,
partnership or association, the officer or
employee thereof who is responsible for the
violation of this Act shall suffer the penalty
imposed in its maximum period;
(c) The penalty provided herein shall be
imposed in its maximum period when the
perpetrator is an ascendant, parent guardian,
stepparent or collateral relative within the
second degree of consanguinity or affinity, or a
manager or owner of an establishment which
has no license to operate or its license has
expired or has been revoked;
(d) When the offender is a foreigner, he shall be
deported immediately after service of sentence
and forever barred from entry to the country;
(e) The penalty provided for in this Act shall be
imposed in its maximum period if the offender
is a public officer or employee: Provided,
however, That if the penalty imposed is
reclusion perpetua or reclusion temporal, then
the penalty of perpetual or temporary absolute
disqualification shall also be imposed: Provided,
finally, That if the penalty imposed is prision
correccional or arresto mayor, the penalty of
suspension shall also be imposed; and
(f) A fine to be determined by the court shall be
imposed and administered as a cash fund by
the Department of Social Welfare and
Development and disbursed for the
rehabilitation of each child victim, or any
immediate member of his family if the latter is
the perpetrator of the offense.
ARTICLE XIII: Final Provisions
Section 32. Rules and Regulations. – Unless otherwise
provided in this Act, the Department of Justice, in
coordination with the Department of Social Welfare and
Development, shall promulgate rules and regulations of
the effective implementation of this Act.
Such rules and regulations shall take effect upon their
publication in two (2) national newspapers of general
circulation.
Section 33. Appropriations. – The amount necessary to
carry out the provisions of this Act is hereby authorized
to be appropriated in the General Appropriations Act of
the year following its enactment into law and thereafter.
Section 34. Separability Clause. – If any provision of this
Act is declared invalid or unconstitutional, the remaining
provisions not affected thereby shall continue in full force
and effect.
Section 35. Repealing Clause. – All laws, decrees, or rules
inconsistent with the provisions of this Acts are hereby
repealed or modified accordingly.
Section 36. Effectivity Clause. – This Act shall take effect
upon completion of its publication in at least two (2)
national newspapers of general circulation.
Approved: June 17, 1992.lawphi1Ÿ
Republic Act No. 6809 December 13, 1989
AN ACT LOWERING THE AGE OF MAJORITY FROM
TWENTY-ONE TO EIGHTEEN YEARS, AMENDING FOR THE
PURPOSE EXECUTIVE ORDER NUMBERED TWO HUNDRED
NINE, AND FOR OTHER PURPOSES
Be it enacted by the Senate and House of
Representatives of the Philippines in Congress
assembled:
Section 1. Article 234 of Executive Order No. 209, the
Family Code of the Philippines, is hereby amended to
read as follows:
"Art. 234. Emancipation takes place by the
attainment of majority. Unless otherwise
provided, majority commences at the age of
eighteen years."
Section 2. Articles 235 and 237 of the same Code are
hereby repealed.
211
Section 3. Article 236 of the same Code is also hereby
amended to read as follows:
"Art. 236. Emancipation shall terminate parental
authority over the person and property of the
child who shall then be qualified and
responsible for all acts of civil life, save the
exceptions established by existing laws in
special cases.
"Contracting marriage shall require parental
consent until the age of twenty-one.
"Nothing in this Code shall be construed to
derogate from the duty or responsibility of
parents and guardians for children and wards
below twenty-one years of age mentioned in
the second and third paragraphs of Article 2180
of the Civil Code."
Section 4. Upon the effectivity of this Act, existing wills,
bequests, donations, grants, insurance policies and
similar instruments containing references and provisions
favorable to minors will not retroact to their prejudice.
Section 5. This Act shall take effect upon completion of its
publication in at least two (2) newspapers of general
circulation.
Approved: December 13, 1989
G.R. No. 163604 May 6, 2005
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
THE HON. COURT OF APPEALS (Twentieth Division), HON.
PRESIDING JUDGE FORTUNITO L. MADRONA, RTC-BR. 35
and APOLINARIA MALINAO JOMOC, respondents.
DECISION
CARPIO-MORALES, J.:
In "In the Matter of Declaration of Presumptive Death of
Absentee Spouse Clemente P. Jomoc, Apolinaria Malinao
Jomoc, petitioner," the Ormoc City, Regional Trial Court,
Branch 35, by Order of September 29, 1999,1 granted the
petition on the basis of the Commissioner’s Report2 and
accordingly declared the absentee spouse, who had left
his petitioner-wife nine years earlier, presumptively dead.
In granting the petition, the trial judge, Judge Fortunito L.
Madrona, cited Article 41, par. 2 of the Family Code. Said
article provides that for the purpose of contracting a
valid subsequent marriage during the subsistence of a
previous marriage where the prior spouse had been
absent for four consecutive years, the spouse present
must institute summary proceedings for the declaration
of presumptive death of the absentee spouse, without
prejudice to the effect of the reappearance of the absent
spouse.
The Republic, through the Office of the Solicitor General,
sought to appeal the trial court’s order by filing a Notice
of Appeal.3
By Order of November 22, 1999s,4 the trial court, noting
that no record of appeal was filed and served "as
required by and pursuant to Sec. 2(a), Rule 41 of the 1997
Rules of Civil Procedure, the present case being a special
proceeding," disapproved the Notice of Appeal.
The Republic’s Motion for Reconsideration of the trial
court’s order of disapproval having been denied by Order
of January 13, 2000,5 it filed a Petition
for Certiorari6 before the Court of Appeals, it contending
that the declaration of presumptive death of a person
under Article 41 of the Family Code is not a special
proceeding or a case of multiple or separate appeals
requiring a record on appeal.
By Decision of May 5, 2004,7 the Court of Appeals denied
the Republic’s petition on procedural and substantive
grounds in this wise:
At the outset, it must be stressed that the
petition is not sufficient in form. It failed to
attach to its petition a certified true copy of the
assailed Order dated January 13, 2000 [denying
its Motion for Reconsideration of the
November 22, 1999 Order disapproving its
Notice of Appeal]. Moreover, the petition
questioned the [trial court’s] Order dated
August 15, 1999, which declared Clemente
Jomoc presumptively dead, likewise for having
been issued with grave abuse of discretion
amounting to lack of jurisdiction, yet, not even
a copy could be found in the records. On this
score alone, the petition should have been
dismissed outright in accordance with Sec. 3,
Rule 46 of the Rules of Court.
However, despite the procedural lapses, the
Court resolves to delve deeper into the
substantive issue of the validity/nullity of the
assailed order.
The principal issue in this case is whether a
petition for declaration of the presumptive death
212
 of a person is in the nature of a special to be perfected. The petition for the declaration of
proceeding. If it is, the period to appeal is 30 presumptive death of an absent spouse not being
days and the party appealing must, in addition included in the enumeration, petitioner contends that a
to a notice of appeal, file with the trial court a mere notice of appeal suffices.
record on appeal to perfect its appeal.
Otherwise, if the petition is an ordinary action, By Resolution of December 15, 2004,8 this Court, noting
the period to appeal is 15 days from notice or that copy of the September 27, 2004
decision or final order appealed from and the Resolution9 requiring respondent to file her comment on
appeal is perfected by filing a notice of appeal the petition was returned unserved with postmaster’s
(Section 3, Rule 41, Rules of Court). notation "Party refused," Resolved to consider that copy
deemed served upon her.
As defined in Section 3(a), Rule 1 of the Rules of
Court, "a civil action is one by which a party The pertinent provisions on the General Provisions on
sues another for the enforcement or protection Special Proceedings, Part II of the Revised Rules of Court
of a right, or the prevention of redress of a entitled SPECIAL PROCEEDINGS, read:
wrong" while a special proceeding under
Section 3(c) of the same rule is defined as "a
RULE 72
remedy by which a party seeks to establish a
SUBJECT MATTER AND APPLICABILITY
status, a right or a particular fact (Heirs of
OF GENERAL RULES
Yaptinchay, et al. v. Del Rosario, et al., G.R. No.
124320, March 2, 1999).
Section 1. Subject matter of special
proceedings. – Rules of special proceedings are
Considering the aforementioned distinction,
provided for in the following:
this Court finds that the instant petition is in the
nature of a special proceeding and not an
ordinary action. The petition merely seeks for a (a) Settlement of estate of deceased
declaration by the trial court of the presumptive persons;
death of absentee spouse Clemente Jomoc. It
does not seek the enforcement or protection of (b) Escheat;
a right or the prevention or redress of a wrong.
Neither does it involve a demand of right or a (c) Guardianship and custody of
cause of action that can be enforced against children;
any person.
(d) Trustees;
On the basis of the foregoing discussion, the
subject Order dated January 13, 2000 denying
(e) Adoption;
OSG’s Motion for Reconsideration of the Order
dated November 22, 1999 disapproving its
Notice of Appeal was correctly issued. The (f) Rescission and revocation of
instant petition, being in the nature of a special adoption;
proceeding, OSG should have filed, in addition
to its Notice of Appeal, a record on appeal in (g) Hospitalization of insane persons;
accordance with Section 19 of the Interim Rules
and Guidelines to Implement BP Blg. 129 and (h) Habeas corpus;
Section 2(a), Rule 41 of the Rules of Court . . .
(Emphasis and underscoring supplied)
(i) Change of name;

The Republic (petitioner) insists that the declaration of

(j) Voluntary dissolution of
presumptive death under Article 41 of the Family Code is corporations;
not a special proceeding involving multiple or separate
appeals where a record on appeal shall be filed and
served in like manner. (k) Judicial approval of voluntary
recognition of minor natural children;

Petitioner cites Rule 109 of the Revised Rules of Court

(l) Constitution of family home;
which enumerates the cases wherein multiple appeals are
allowed and a record on appeal is required for an appeal

213
 (m) Declaration of absence and death;
(n) Cancellation or correction
entries in the civil registry.
Sec. 2. Applicability of rules of civil actions. – In
the absence of special provisions, the rules
provided for in ordinary actions shall be, as far
as practicable, applicable in special
proceedings. (Underscoring supplied)
The pertinent provision of the Civil Code on presumption
of death provides:
Art. 390. After an absence of seven years, it
being unknown whether or not the absentee
still lives, he shall be presumed dead for all
purposes, except for those of succession.
x x x (Emphasis and underscoring supplied)
Upon the other hand, Article 41 of the Family Code, upon
which the trial court anchored its grant of the petition for
the declaration of presumptive death of the absent
spouse, provides:
Art. 41. A marriage contracted by any person
during the subsistence of a previous marriage
shall be null and void, unless before the
celebration of the subsequent marriage, the
prior spouses had been absent for four
consecutive years and the spouse present had a
well-founded belief that the absent spouses
was already dead. In case of disappearance
where there is danger of death under the
circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of only
two years shall be sufficient.
For the purpose pf contracting the subsequent
marriage under the preceding paragraph, the
spouses present must institute a summary
proceeding as provided in this Code for the
declaration of presumptive death of the
absentee, without prejudice to the effect of a
reappearance of the absent spouse. (Emphasis
and underscoring supplied)
Rule 41, Section 2 of the Revised Rules of Court, on
Modes of Appeal, invoked by the trial court in
disapproving petitioner’s Notice of Appeal, provides:
Sec. 2. Modes of appeal. -
(a) Ordinary appeal. - The appeal to the Court
of Appeals in cases decided by the Regional
of Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of
appeal with the court which rendered the
judgment or final order appealed from and
serving a copy thereof upon the adverse
party. No record on appeal shall be required
except in special proceedings and other cases of
multiple or separate appeals where the law or
these Rules so require. In such cases, the record
on appeal shall be filed and served in like
manner. (Emphasis and underscoring supplied)
xxx
By the trial court’s citation of Article 41 of the Family
Code, it is gathered that the petition of Apolinaria Jomoc
to have her absent spouse declared presumptively
dead had for its purpose her desire to contract a valid
subsequent marriage. Ergo, the petition for that purpose
is a "summary proceeding," following above-quoted Art.
41, paragraph 2 of the Family Code.
Since Title XI of the Family Code, entitled SUMMARY
JUDICIAL PROCEEDING IN THE FAMILY LAW, contains the
following provision, inter alia:
xxx
Art. 238. Unless modified by the Supreme
Court, the procedural rules in this Title shall
apply in all cases provided for in this Codes
requiring summary court proceedings. Such
cases shall be decided in an expeditious manner
without regard to technical rules. (Emphasis and
underscoring supplied)
x x x,
there is no doubt that the petition of Apolinaria Jomoc
required, and is, therefore, a summary proceeding under
the Family Code, not a special proceeding under the
Revised Rules of Court appeal for which calls for the filing
of a Record on Appeal. It being a summary ordinary
proceeding, the filing of a Notice of Appeal from the trial
court’s order sufficed.
That the Family Code provision on repeal, Art. 254,
provides as follows:
Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV
of Book I of Republic Act No. 386, otherwise
known as the Civil Code of the Philippines, as
amended, and Articles 17, 18, 19, 27, 28, 29, 30,
214
 31, 39, 40, 41 and 42 of Presidential Decree No.
603, otherwise known as the Child and Youth
Welfare Code, as amended, and all laws,
decrees, executive orders,
proclamations rules and regulations, or parts
thereof, inconsistent therewith are
hereby repealed, (Emphasis and underscoring
supplied),
seals the case in petitioner’s favor.
Finally, on the alleged procedural flaw in petitioner’s
petition before the appellate court. Petitioner’s failure to
attach to his petition before the appellate court a copy of
the trial court’s order denying its motion for
reconsideration of the disapproval of its Notice of Appeal
is not necessarily fatal, for the rules of procedure are not
to be applied in a technical sense. Given the issue raised
before it by petitioner, what the appellate court should
have done was to direct petitioner to comply with the
rule.
As for petitioner’s failure to submit copy of the trial
court’s order granting the petition for declaration of
presumptive death, contrary to the appellate court’s
observation that petitioner was also assailing it,
petitioner’s 8-page petition10 filed in said court does not
so reflect, it merely having assailed the order
disapproving the Notice of Appeal.
WHEREFORE, the assailed May 5, 2004 Decision of the
Court of Appeals is hereby REVERSED and SET ASIDE. Let
the case be REMANDED to it for appropriate action in
light of the foregoing discussion.
SO ORDERED.
G.R. No. 160258 January 19, 2005
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
GLORIA BERMUDEZ-LORINO, respondent.
DECISION
GARCIA, J.:
Via this petition for review on certiorari under Rule 45 of
the Rules of Court, petitioner Republic of the Philippines,
represented by the Office of the Solicitor General (OSG),
seeks the reversal and setting aside of the decision dated
September 23, 2003 of the Court of Appeals in CA-G.R.
CV No. 73884, which affirmed on appeal an earlier
decision of the Regional Trial Court (RTC) at San Mateo,
Rizal in a summary judicial proceeding thereat
commenced by the herein respondent Gloria Bermudez-
Lorino for the declaration of the presumptive death of
her absent spouse, Francisco Lorino, Jr., based on the
provisions of Article 41 of the Family Code, for purposes
of remarriage.
The facts may be summarized, as follows:
Respondent Gloria Bermudez-Lorino (Gloria for brevity),
and her husband were married on June 12, 1987. Out of
this marriage, she begot three (3) children, namely:
Francis Jeno, Fria Lou and Fatima.1a\^/phi1.net
Before they got married in 1987, Gloria was unaware that
her husband was a habitual drinker, possessed with
violent character/attitude, and had the propensity to go
out with friends to the extent of being unable to engage
in any gainful work.
Because of her husband’s violent character, Gloria found
it safer to leave him behind and decided to go back to
her parents together with her three (3) children. In order
to support the children, Gloria was compelled to work
abroad.
From the time of her physical separation from her
husband in 1991, Gloria has not heard of him at all. She
had absolutely no communications with him, or with any
of his relatives.
On August 14, 2000, nine (9) years after she left her
husband, Gloria filed a verified petition with the Regional
Trial Court (RTC) at San Mateo, Rizal under the rules
on Summary Judicial Proceedings in the Family
Law provided for in the Family Code, which petition was
docketed in the same court as Special Proceeding No.
325-00 SM.
On August 28, 2000, the RTC issued an order
directing, inter alia, the publication of the petition in a
newspaper of general circulation, thus:
A verified petition was filed by herein petitioner through
counsel alleging that she married Francisco Lorino, Jr. on
June 12, 1987 but because of the violent character of his
husband, she decided to go back to her parents and lived
separately from her husband. After nine (9) years, there
was absolutely no news about him and she believes that
he is already dead and is now seeking through this
petition for a Court declaration that her husband is
judicially presumed dead for the purpose of remarriage.
Finding the said petition to be sufficient in form and
substance, the same is hereby set for hearing before this
215
Court on September 18, 2000 at 8:30 o’clock in the
morning at which place, date and time, any or all persons
who may claim any interest thereto may appear and
show cause why the same should not be granted.
Let a copy of this Order be published in a newspaper of
general circulation in this province once a week for three
(3) consecutive weeks and be posted in the bulletin
boards of the Hall of Justice and the Municipal Hall, San
Mateo, Rizal, all at the expense of the
petitioner.1awphi1.nét
Furnish the Office of the Solicitor General a copy of this
Order together with a copy of the petition. Further, send
a copy of this Order to the last known address of
Francisco Lorino, Jr. at 719 Burgos St., Sta. Elena, Marikina
City.
SO ORDERED1
The evidence in support of the summary judicial
proceeding are: the order of publication dated August
28, 2000 (Exhibit "A"); affidavit of publication dated
September 16, 2000 (Exhibit "B")2 ; copies of the
newspapers where the order appeared (Exhibits "C" to "E-
1")3 ; a deposition dated September 4, 2000 of Gloria
taken in Hong Kong (Exhibit "G")4 ; Gloria’s affidavit dated
October 21, 1999, also executed in Hong Kong (Exhibit
"G-1")5 ; and a certification by Department of Foreign
Affairs Authentication Officer, Catalina C. Gonzalez, dated
November 3, 1999, therein certifying that the signature of
Vice Consul Adriane Bernie C. Candolada, appearing
below the jurat in Gloria’s affidavit of October 21, 1999, is
authentic (Exhibit "G-2")6 .
In a decision dated November 7, 2001, the RTC, finding
merit in the summary petition, rendered judgment
granting the same, to wit:
WHEREFORE, this Court in view of the facts and
circumstances obtaining, finds the petition with merit and
hereby grants its imprimatur to the petition. Judgment is
hereby rendered declaring the presumptive
death/absence of Francisco Lorino, Jr. pursuant to Art. 41
of the New Family Code but subject to all restrictions and
conditions provided therein.
SO ORDERED.7
Despite the judgment being immediately final and
executory under the provisions of Article 247 of the
Family Code, thus:
Art. 247. The judgment of the court shall be immediately
final and executory,
the Office of the Solicitor General, for the Republic of the
Philippines, nevertheless filed a Notice of Appeal.8 Acting
thereon, the RTC had the records elevated to the Court of
Appeals which docketed the case as CA-G.R. CV No.
73884.
In a decision dated September 23, 2003, the Court of
Appeals, treating the case as an ordinary appealed case
under Rule 41 of the Revised Rules on Civil Procedure,
denied the Republic’s appeal and accordingly affirmed
the appealed RTC decision:
WHEREFORE, based on the foregoing premises, the
instant appeal is DENIED. Accordingly, the appealed
November 7, 2001 Decision of the Regional Trial Court of
San Mateo, Rizal in Spec. Proc. No. 325-00 SM is
hereby AFFIRMED.
SO ORDERED.9
Without filing any motion for reconsideration, petitioner
Republic directly went to this Court via the instant
recourse under Rule 45, maintaining that the petition
raises a pure question of law that does not require prior
filing of a motion for reconsideration.
The foregoing factual antecedents present to this Court
the following issues:
WHETHER OR NOT THE COURT OF APPEALS DULY
ACQUIRED JURISDICTION OVER THE APPEAL ON A FINAL
AND EXECUTORY JUDGMENT OF THE REGIONAL TRIAL
COURT; and
WHETHER OR NOT THE FACTUAL AND LEGAL BASES FOR
A JUDICIAL DECLARATION OF PRESUMPTIVE DEATH
UNDER ARTICLE 41 OF THE FAMILY CODE WERE DULY
ESTABLISHED IN THIS CASE.
The Court rules against petitioner Republic.
Article 238 of the Family Code, under Title XI: SUMMARY
JUDICIAL PROCEEDINGS IN THE FAMILY LAW, sets the
tenor for cases covered by these rules, to wit:
Art. 238. Until modified by the Supreme Court, the
procedural rules in this Title shall apply in all cases
provided for in this Code requiring summary court
proceedings. Such cases shall be decided in an
expeditious manner without regard to technical rules.
Judge Elizabeth Balquin-Reyes of RTC, Branch 75, San
Mateo, Rizal duly complied with the above-cited
provision by expeditiously rendering judgment within
216
ninety (90) days after the formal offer of evidence by
therein petitioner, Gloria Bermudez-Lorino.
The problem came about when the judge gave due
course to the Republic’s appeal upon the filing of a
Notice of Appeal, and had the entire records of the case
elevated to the Court of Appeals, stating in her order of
December 18, 2001, as follows:
Notice of Appeal having been filed through registered
mail on November 22, 2001 by the Office of the Solicitor
General who received a copy of the Decision in this case
on November 14, 2001, within the reglementary period
fixed by the Rules, let the entire records of this case be
transmitted to the Court of Appeals for further
proceedings.
SO ORDERED.10
In Summary Judicial Proceedings under the Family Code,
there is no reglementary period within which to perfect
an appeal, precisely because judgments rendered
thereunder, by express provision of Section 247, Family
Code, supra, are "immediately final and executory". It was
erroneous, therefore, on the part of the RTC to give due
course to the Republic’s appeal and order the transmittal
of the entire records of the case to the Court of Appeals.
An appellate court acquires no jurisdiction to review a
judgment which, by express provision of law, is
immediately final and executory. As we have said in
Veloria vs. Comelec,11 "the right to appeal is not a natural
right nor is it a part of due process, for it is merely a
statutory privilege." Since, by express mandate of Article
247 of the Family Code, all judgments rendered in
summary judicial proceedings in Family Law are
"immediately final and executory", the right to appeal
was not granted to any of the parties therein. The
Republic of the Philippines, as oppositor in the petition
for declaration of presumptive death, should not be
treated differently. It had no right to appeal the RTC
decision of November 7, 2001.
It was fortunate, though, that the Court of Appeals,
acting through its Special Fourth Division, with Justice Elvi
John S. Asuncion as Acting Chairman and ponente,
denied the Republic’s appeal and affirmed without
modification the final and executory judgment of the
lower court. For, as we have held in Nacuray vs. NLRC :12
Nothing is more settled in law than that when a
judgment becomes final and executory it becomes
immutable and unalterable. The same may no longer be
modified in any respect, even if the modification is meant
to correct what is perceived to be an erroneous
conclusion of fact or law, and whether made by the
highest court of the land (citing Nunal v. Court of
Appeals, G.R. No. 94005, 6 April 1993, 221 SCRA 26).
But, if only to set the records straight and for the future
guidance of the bench and the bar, let it be stated that
the RTC’s decision dated November 7, 2001, was
immediately final and executory upon notice to the
parties. It was erroneous for the OSG to file a notice of
appeal, and for the RTC to give due course thereto. The
Court of Appeals acquired no jurisdiction over the case,
and should have dismissed the appeal outright on that
ground.
This judgment of denial was elevated to this Court via a
petition for review on certiorari under Rule 45. Although
the result of the Court of Appeals’ denial of the appeal
would apparently be the same, there is a big difference
between having the supposed appeal dismissed for lack
of jurisdiction by virtue of the fact that the RTC decision
sought to be appealed is immediately final and
executory, and the denial of the appeal for lack of merit.
In the former, the supposed appellee can immediately
ask for the issuance of an Entry of Judgment in the RTC,
whereas, in the latter, the appellant can still raise the
matter to this Court on petition for review and the RTC
judgment cannot be executed until this Court makes the
final pronouncement.
The Court, therefore, finds in this case grave error on the
part of both the RTC and the Court of Appeals. To stress,
the Court of Appeals should have dismissed the appeal
on ground of lack of jurisdiction, and reiterated the fact
that the RTC decision of November 7, 2001 was
immediately final and executory. As it were, the Court of
Appeals committed grave reversible error when it failed
to dismiss the erroneous appeal of the Republic on
ground of lack of jurisdiction because, by express
provision of law, the judgment was not appealable.
WHEREFORE, the instant petition is hereby DENIED for
lack of merit.1a\^/phi1.net No pronouncement as to
costs. SO ORDERED.
G.R. No. 161062 July 31, 2009
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
FERVENTINO U. TANGO, Respondent.
QUISUMBING, J.:
This is a petition for review on certiorari of the
Decision1 dated November 28, 2003 of the Court of
Appeals in CA-G.R. CV No. 76387 which denied the
217
Republic’s appeal from the Order2 dated July 23, 2002 of
the Regional Trial Court (RTC) of Ligao City, Branch 11 in
Special Proceeding No. 357. The trial court had declared
the wife of respondent Ferventino U. Tango (Ferventino),
Maria Jose Villarba (Maria), presumptively dead under
Article 413 of the Family Code.
The present controversy arose from the following facts:
On March 9, 1987, Ferventino and Maria were married4 in
civil rites before then Mayor Ignacio Bunye of Muntinlupa
City. None of Maria’s relatives witnessed the ceremony as
they were opposed to her relationship with Ferventino.
The two had only spent a night together and had been
intimate once when Maria told Ferventino that she and
her family will soon be leaving for the United States of
America (USA). Maria assured Ferventino, however, that
she will file a petition so he can live with her in the USA.
In the event that said petition is denied, she promised to
return to the Philippines to live with him. On March 13,
1987, Maria and her family flew to Seattle, USA.
Ferventino alleges that Maria kept in touch for a year
before she stopped responding to his letters. Out of
resentment, he burned all the letters Maria wrote him. He
claims to have forgotten her address since.
Ferventino recounts the efforts he made to find Maria.
Upon inquiry from the latter’s uncle, Antonio Ledesma, in
Las Piñas, Ferventino learned that even Maria’s relatives
were unaware of her whereabouts. He also solicited the
assistance of a friend in Texas, Capt. Luis Aris of the U.S.
Air Force, but to no avail. Finally, he sought the aid of his
parents Antonio and Eusebia in Los Angeles, and his aunt
Anita Castro-Mayor in Seattle. Like, Ledesma though,
their attempts to find Maria proved fruitless. The next 14
years went by without any news of Maria.
On the belief that his wife had died, Ferventino filed a
verified petition5 dated October 1, 2001 before the Ligao
City RTC for the declaration of presumptive death of
Maria within the contemplation of Article 41 of the
Family Code.
When the case was called for initial hearing on January 8,
2002, nobody entered any opposition. On July 22, 2002,
Ferventino presented evidence ex parte and testified in
court about the details of his search. On July 23, 2002,
Branch 11 of the Ligao City RTC issued an Order, the
dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered, declaring
MARIA JOSE V. VILLARBA, wife of FERVENTINO U.
TANGO, presumptively dead within the meaning of
Article 41 of the Family Code.
SO ORDERED. 6
This prompted the Office of the Solicitor General (OSG),
for the Republic, to file a Notice of Appeal.7 Acting
thereon, Presiding Judge Romulo SG. Villanueva of the
Ligao City RTC had the records of the case transmitted to
the Court of Appeals.
The Court of Appeals, treating the case as an ordinary
appealed case under Rule 41 of the Rules of Court,
affirmed the RTC’s Order. It held that Maria’s absence for
14 years without information about her location despite
diligent search by Ferventino was sufficient to support a
well-founded belief of her death. The appellate court
observed that neither the OSG nor the Assistant
Provincial Prosecutor objected to the evidence which
Ferventino presented on trial. It noted, in particular, that
the OSG did not dispute the adequacy of Ferventino’s
basis to engender a well-founded belief that Maria is
dead. Hence, in a Decision dated November 28, 2003, the
Court of Appeals denied the Republic’s appeal in this
tenor:
WHEREFORE, the appeal is hereby DENIED. Accordingly,
the July 23, 2002 Order of the Regional Trial Court of
Ligao City, Branch 11 in Spec. Proc. No. 357 is AFFIRMED.
SO ORDERED.8
Before us, petitioner anchors this petition for review on
certiorari on the following two grounds:
I.
THE TESTIMONY OF RESPONDENT ON THE ALLEGED
EFFORTS MADE BY HIS FRIEND AND RELATIVES IN
LOCATING HIS MISSING WIFE IN SEATTLE, UNITED
STATES, IS HEARSAY AND DEVOID OF PROBATIVE
VALUE[; AND]
II.
EVEN ASSUMING THAT THE AFORESAID TESTIMONY
MAY BE CONSIDERED IN EVIDENCE, THE ALLEGED
EFFORTS OF RESPONDENT’S FRIEND AND RELATIVES IN
LOCATING HIS MISSING WIFE IN SEATTLE, UNITED
STATES, DO NOT SUFFICIENTLY SUPPORT A "WELL-
FOUNDED BELIEF" THAT RESPONDENT’S ABSENT
SPOUSE IS PROBABLY DEAD.9
Unadorned, the issues for our determination are: (1)
whether the testimony of respondent Ferventino is
hearsay; and (2) whether respondent Ferventino has
218
established a basis to form a well-founded belief that his
absent spouse is already dead.
The Republic, through the OSG, contests the appellate
court’s holding that the absence of respondent’s wife
Maria for 14 years provides sufficient basis to entertain a
well-founded belief that she is dead. The OSG discounts
respondent’s testimony, on the steps he took to find
Maria, as hearsay because none of the persons who
purportedly helped in his search testified in court.
Notably, the OSG observes that only Capt. Aris gave a
detailed account of his efforts to track down Maria.
According to Capt. Aris, he went over the Seattle phone
directory for Maria’s name and inquired about her from
the registrar’s office in Seattle, but both efforts proved to
be in vain.
The OSG belittles its failure to object to the admissibility
of respondent’s testimony during trial. Instead, it invokes
Constitutional provisions that advocate the state policy of
preserving marital institutions.
On March 16, 2007, respondent’s counsel, Atty. Richie R.
Regala, manifested to this Court his intent to withdraw as
counsel for respondent. According to Atty. Regala, he
received a letter by which respondent expressed a desire
to withdraw from the proceeding.10 In view of this, the
Court issued a Resolution11 on April 21, 2008 which
deemed as waived the filing of respondent’s comment on
the petition. Previously, the Court of Appeals had also
issued a Resolution12 dated October 15, 2003 submitting
the case for decision and ordering its re-raffling for
respondent’s failure to file an appellee’s brief. In other
words, apart from the verified petition for the declaration
of presumptive death of Maria dated October 1, 2001,
which respondent filed before the Ligao City RTC, he has
not submitted any other pleading in connection with the
petition.
Respondent’s apparent lack of desire to pursue the
proceedings notwithstanding, the Court is inclined to rule
against the Republic.
This case presents an opportunity for us to settle the rule
on appeal of judgments rendered in summary
proceedings under the Family Code and accordingly,
refine our previous decisions thereon.
Article 238 of the Family Code, under Title XI: SUMMARY
JUDICIAL PROCEEDINGS IN THE FAMILY LAW, establishes
the rules that govern summary court proceedings in the
Family Code:
ART. 238. Until modified by the Supreme Court, the
procedural rules in this Title shall apply in all cases
provided for in this Code requiring summary court
proceedings. Such cases shall be decided in an
expeditious manner without regard to technical rules.
In turn, Article 253 of the Family Code specifies the cases
covered by the rules in chapters two and three of the
same title. It states:
ART. 253. The foregoing rules in Chapters 2 and 3 hereof
shall likewise govern summary proceedings filed under
Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are
applicable. (Emphasis supplied.)
In plain text, Article 247 in Chapter 2 of the same title
reads:
ART 247. The judgment of the court shall be immediately
final and executory.
By express provision of law, the judgment of the court in
a summary proceeding shall be immediately final and
executory. As a matter of course, it follows that no appeal
can be had of the trial court’s judgment in a summary
proceeding for the declaration of presumptive death of
an absent spouse under Article 41 of the Family Code. It
goes without saying, however, that an aggrieved party
may file a petition for certiorari to question abuse of
discretion amounting to lack of jurisdiction. Such petition
should be filed in the Court of Appeals in accordance
with the Doctrine of Hierarchy of Courts. To be sure, even
if the Court’s original jurisdiction to issue a writ of
certiorari is concurrent with the RTCs and the Court of
Appeals in certain cases, such concurrence does not
sanction an unrestricted freedom of choice of court
forum.13 From the decision of the Court of Appeals, the
losing party may then file a petition for review on
certiorari under Rule 45 of the Rules of Court with the
Supreme Court. This is because the errors which the court
may commit in the exercise of jurisdiction are merely
errors of judgment which are the proper subject of an
appeal.141avvphi1
In the case before us, petitioner committed a serious
procedural lapse when it filed a notice of appeal in the
Court of Appeals instead of a petition for certiorari. The
RTC equally erred in giving due course to said appeal and
ordering the transmittal of the records of the case to the
appellate court. By no means did the Court of Appeals
acquire jurisdiction to review the judgment of the RTC
which, by express provision of law, was immediately final
and executory.
Adding to the confusion, the Court of Appeals
entertained the appeal and treated the same as an
ordinary appeal under Rule 41 of the Rules of Court. As it
219
were, the Court of Appeals committed grave reversible
error when it failed to dismiss the erroneous appeal of
the Republic on the ground of lack of jurisdiction
because, by express provision of the law, the judgment
was not appealable.15
Before us, petitioner filed a petition for review on
certiorari under Rule 45 of the Rules of Court. But, even if
petitioner used the correct mode of appeal at this level,
the hands of the Court are tied. Without a doubt, the
decision of the trial court had long become final.
Deeply ingrained in our jurisprudence is the principle that
a decision that has acquired finality becomes immutable
and unalterable. As such, it may no longer be modified in
any respect even if the modification is meant to correct
erroneous conclusions of fact or law and whether it will
be made by the court that rendered it or by the highest
court of the land.16 In light of the foregoing, it would be
unnecessary, if not useless, to discuss the issues raised by
petitioner.
The doctrine of finality of judgment is grounded on the
fundamental principle of public policy and sound practice
that, at the risk of occasional error, the judgment of
courts and the award of quasi-judicial agencies must
become final on some definite date fixed by law. The only
exceptions to the general rule are the correction of
clerical errors, the so-called nunc pro tunc entries which
cause no prejudice to any party, void judgments, and
whenever circumstances transpire after the finality of the
decision which render its execution unjust and
inequitable.17 None of the exceptions obtains here to
merit the review sought.
WHEREFORE the instant petition is DENIED for lack of
merit. No pronouncement as to costs.
SO ORDERED.
G.R. No. 88202 December 14, 1998
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS and CYNTHIA
VICENCIO, respondents.
QUISUMBING, J.:
This is an interposed by the Republic of the Philippines as
represented by the Office of the Solicitor General (OSG),
assailing the decision 1 of the Court of Appeals
promulgated on April 28, 1989, which affirmed the
decision2 of the Regional Trial Court of Manila, Branch 52,
dated August 31, 1987. The appealed decision granted
private respondent Cynthia Vicencio's petition for change
of surname, from "Vicencio" to "Yu".
As found by the trial court, hereunder are the facts and
circumstances of the case:
Petitioner's evidence is to the effect
that she was born on 19 January 1971
at the Capitol Medical Center, Quezon
City, to the spouses Pablo Castro
Vicencio and Fe Esperanza de Vega
Leabres (Exh. C, also marked Annex A
of Petition); that on 10 January 1972,
after a marital spat, Pablo Vicencio left
their conjugal abode then situated at
Meycauayan, Bulacan; that since then
Pablo Vicencio never reappeared nor
sent support to his family and it was
Ernesto Yu who had come to the aid
of Fe Esperanza Labres (sic) and her
children; that on 29 June 1976, Fe
Esperanza Leabres filed a petition in
the then Juvenile and Domestic
Relations Court of Manila for
dissolution of their conjugal
partnership, Civil Case No. E-02009,
which was granted in a decision
rendered by the Hon. Regina C.
Ordoñez Benitez on 11 July 1977
(Exhs. D, D-1 to D-3); that sometime
in 1983, petitioner's mother filed
another petition for change of name,
Sp. Proc No. 83-16346, that is to drop
the surname of her husband
therefrom, and after hearing a
decision was rendered on 5 July 1983
by the Hon. Emeterio C. Cui of Branch
XXV of this Court approving the
petition (Exh. E); that in 1984,
petitioner's mother again filed
another petition with this Court, Sp.
Proc. No. 84-22605, for the
declaration of Pablo Vicencio as an
absentee, and which petition was
granted on 26 April 1984 in a decision
rendered by the Hon. Corona Ibay-
Somera (Exh. F & F-1); that on 15 April
1986, petitioner's mother and Ernesto
Yu were joined in matrimony in a
ceremony solemnized by Mayor
Benjamin S. Abalos of Mandaluyong,
Metro Manila (Exh. G.).
It was also established that even (sic)
since her childhood, petitioner had
not known mush less remembered
220
 her real father Pablo Vicencio, and her
known father had been and still is
Ernesto Yu; that despite of which she
had been using the family name
"Vicencio" in her school and other
related activities therein; that in view
of such situation, confusion arose as
to her parentage and she had been
subjected to inquiries why she is using
Vicencio as her family name, both by
her classmates and their neighbors,
causing her extreme embarrassment;
that on two (2) occassions when she
ran as a beauty contestant in a Lions
Club affair and in Manila Red Cross
pageant, her name was entered as
Cynthia L. Yu; that her step-father had
been priorly consulted about this
petition and had given his consent
thereto; that in fact Ernesto Yu
testified for petitioner and confirmed
his consent to the petition as he had
always treated petitioner as his own
daughter ever since. 3
At the hearing of the petition for change of name by the
trial court, the OSG manifested that it was opposing the
petition. It participated in the proceedings by cross-
examining the private respondent Cynthia Vicencio,
(petitioner a quo) and her witnesses.
Disregarding the OSG's contention, the trial court ruled
that there is no valid cause for denying the petition.
Further, the trial court stated that it could not compel
private respondent's step-father to adopt her, as
adoption is a voluntary act; but failure to resort to
adoption should not be a cause for disallowing private
respondent to legally change her name.4 Hence, it
granted the change of surname of private respondent
from Vicencio to Yu.
The decision of the trial court was affirmed by the
appellate court, which held that it is for the best interest
of petitioner that her surname be changed. The appellate
court took into account the testimonies of private
respondent and her witnesses that allowing the change
of surname would "give her an opportunity to improve
her personality and welfare." 5 It likewise noted that the
discrepancy between her original surname, taken from
her biological father; and the surname of her step-father,
who has been socially recognized as her father, caused
her embarrassment and inferiority complex.6
The main issue before us is whether the appellate court
erred in affirming the trial court's decision allowing the
change of private respondent's surname to that of her
step-father's surname.
In Republic vs. Hernandez 7, we have recognized inter
alia, the following as sufficient grounds to warrant a
change name: (a) when the name is ridiculous,
dishonorable or extremely difficult to write or pronounce,
(b) when the change is a legal consequence of
legitimation or adoption; (c) when the change will avoid
confusion; (d) when one has continuously used and been
known since childhood by a Filipino name and was
unaware of alien parentage; (e) when the change is based
on a sincere desire to adopt a Filipino name to erase
signs of former alienage, all in good faith and without
prejudice to anybody; and (f) when the surname causes
embarrassment and there is no showing that the desired
change of name was far a fraudulent purpose, or that the
change of name would prejudice public interest.
Private respondent asserts that her case falls under one
of the justifiable grounds aforecited. She says that
confusion has arisen as to her parentage because ever
since childhood, Ernesto Yu has acted as her father,
assuming duties of rearing, caring and supporting her.
Since she is known in society as the daughter of Ernesto
Yu, she claims that she been subjected to inquiries
regarding her use of a different surname, causing her
much humiliation and embarrassment. However, it is not
denied that private respondent has used Vicencio as her
surname in her school records and related documents.
But she had used the surname of her step-father, Yu,
when she participated in public functions, such as
entering beauty contests, namely, with the Lion's Club
and the Manila Red Cross, and when she celebrated her
debut at the Manila Hotel. 8
The Solicitor General however argues that there is no
proper and reasonable cause to warrant private
respondent's change of surname. Such change might
even cause confusion and give rise to legal complications
due to the fact that private respondent's step-father has
two (2) children with her mother. In the event of her step-
father's death, it is possible that private respondent may
even claim inheritance rights as a "legitimate" daughter.
In his memorandum, the Solicitor General opines that
"Ernesto Yu has no intention of making Cynthia as an heir
because despite the suggestion made before the petition
for change of name was heard by the trial court that the
change of family name to Yu could very easily be
achieved by adoption, he has not opted for such a
remedy." 9
We find merit in the Solicitor General's contention.
"The touchstone for the grant of a change of name is that
there be "proper and reasonable cause" for which the
221
change is sought." 10 The assailed decision as affirmed by
the appellate court does not persuade us to depart from
the applicability of the general rule on the use of
surnames 11, specifically the law which requires that
legitimate children shall principally use the surname of
their father 12.
Private respondent Cynthia Vicencio is the legitimate
offspring of Fe Leabres and Pablo Vicencio. As previously
stated, a legitimate child generally bears the surname of
his or her father. It must be stressed that a change of
name is a privilege, not a matter of right, addressed to
the sound discretion of the court, which has the duty to
consider carefully the consequences of a change of name
and to deny the same unless weighty reasons are
shown. 13
Confusion indeed might arise with regard to private
respondent's parentage because of her surname. But
even, more confusion with grave legal consequences
could arise if we allow private respondent to bear her
step-father's surname, even if she is not legally adopted
by him. While previous decisions have allowed children
to bear the surname of their respective step-fathers even
without the benefit of adoption, these instances should
be distinguished from the present case. In Calderon vs.
Republic, 14 and Llaneta vs. Agrava, 15 this Court allowed
the concerned child to adopt the surname of the step-
father, but unlike the situation in the present case where
private respondent is a legitimate child, in those cases
the children were not of legitimate parentage. In Moore
vs.
Republic, 16 where the circumstances appears to be
similar to the present case before us, the Court upheld
the Republic's position:
We find tenable this observation of
government's counsel. Indeed, if a
child born out of a lawful wedlock be
allowed to bear the surname of the
second husband of the mother,
should the first husband die or be
separated by a decree of divorce,
there may result a confusion as to his
real paternity. In the long run the
change may redound to the prejudice
of the child in the community.
While the purpose which may have
animated petitioner is plausible and
may run along the feeling of cordiality
and spiritual relationship that
pervades among the members of the
Moore family, our hand is deferred by
a legal barrier which we cannot at
present overlook or brush aside. 17
Similarly in Padilla vs. Republic, 18 the Court ruled that:
To allow said minors to adopt the
surname of their mother's second
husband, who is not their father,
could result in confusion in their
paternity It could also create the
suspicion that said minors, who were
born during the coverture of their
mother with her first husband, were in
fact sired by Edward Padilla, thus
bringing their legitimate status into
discredit. 19
Private respondent might sincerely wish to be in a
position similar to that of her step-father's legitimate
children, a plausible reason the petition for change of
name was filed in the first place. Moreover, it is laudable
that Ernesto Yu has treated Cynthia as his very own
daughter, providing for all her needs as a father would
his own flesh and blood. However, legal constraints lead
us to reject private respondent's desire to use her
stepfather's surname. Further, there is no assurance the
end result would not be even more detrimental to her
person, for instead of bringing a stop to questions, the
very change of name, if granted, could trigger much
deeper inquiries regarding her parentage.
Lastly, when this case was decided by the appellate court,
private respondent was already 18 years old but still
considered a minor because Republic Act
6809, 20 lowering the age of majority, was then in effect.
However, regardless of private respondent's age, our
conclusion remains considering the circumstances before
us and the lack of any legally justifiable cause for
allowing the change of her surname.
WHEREFORE, the appealed decision is hereby REVERSED
and SET ASIDE; and the instant petition is hereby
GRANTED. SO ORDERED.
G.R. No. 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…duly
represented by his mother ANNA LISA WANG, Petitioners,
vs.
CEBU CITY CIVIL REGISTRAR, duly represented by the
Registrar OSCAR B. MOLO, Respondents.
I will not blot out his name out of the book of life.
Revelation 3:5
222
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
2004.4 The 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,
223
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
224
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 are not at all analogous to the case at bar.
The instant case is clearly distinguishable from the cases
of Oshita and Alfon, where the petitioners were already
of age when they filed their petitions for 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
225
Japanese as a result of World War II, in addition to the 2003 in CA-G.R. CV No. 66128, which affirmed the
fact of therein petitioner’s election of Philippine decision of the Regional Trial Court (RTC), Branch 23 of
citizenship. In Alfon, the Court granted the petition since San Juan, Southern Leyte dated September 14, 1999
the petitioner had been known since childhood by a granting a petition for change of name.
name different from her registered name and she had
not used her registered name in her school records and Respondent Trinidad R. A. Capote filed a petition for
voter’s registration records; thus, denying the petition change of name of her ward from Giovanni N.
would only result to confusion. Gallamaso to Giovanni Nadores on September 9, 1998. In
Special Proceeding No. R-481,3 Capote as Giovanni’s
Calderon, on the other hand, granted the petition for guardian ad litem averred:
change of name filed by a mother in behalf of her
illegitimate minor child. Petitioner cites this case to xxx xxx xxx
buttress his argument that he does not have to reach the
age of majority to petition for change of name. However,
1. [Respondent] is a Filipino citizen, of legal age,
it is manifest in Calderon that the Court, in granting the
married, while minor GIOVANNI N.
petition for change of name, gave paramount
GALLAMASO, is also a Filipino citizen, sixteen
consideration to the best interests of the minor petitioner
(16) years old and both are residents of San
therein.
Juan, Southern Leyte where they can be served
with summons and other court processes;
In the case at bar, the only reason advanced by petitioner
for the dropping his middle name is convenience.
2. [Respondent] was appointed guardian [ad
However, how such change of name would make his
litem] of minor Giovanni N. Gallamaso by virtue
integration into Singaporean society easier and
of a court order in Special [Proc.] No. R-459,
convenient is not clearly established. That the continued
dated [August 18, 1998] xxx xxx authorizing her
use of his middle name would cause confusion and
to file in court a petition for change of name of
difficulty does not constitute proper and reasonable
said minor in accordance with the desire of his
cause to drop it from his registered complete name.
mother [who is residing and working abroad];

In addition, petitioner is only a minor. Considering the

3. Both [respondent] and minor have
nebulous foundation on which his petition for change of
permanently resided in San Juan, Southern
name is based, it is best that the matter of change of his
Leyte, Philippines for more than fifteen (15)
name be left to his judgment and discretion when he
years prior to the filing of this instant petition,
reaches the age of majority.26 As he is of tender age, he
the former since 1970 while the latter since his
may not yet understand and appreciate the value of the
birth [in 1982];
change of his name and granting of the same at this
point may just prejudice him in his rights under our laws.
4. The minor was left under the care of
[respondent] since he was yet nine (9) years old
WHEREFORE, in view of the foregoing, the Petition for
up to the present;
Review on Certiorari is DENIED.

5. Minor GIOVANNI N. GALLAMASO is the

SO ORDERED.
illegitimate natural child of Corazon P. Nadores
and Diosdado Gallamaso. [He] was born on July
G.R. No. 157043 February 2, 2007 9, 1982 [,] prior to the effectivity of the New
Family Code and as such, his mother used the
REPUBLIC OF THE PHILIPPINES, Petitioner, surname of the natural father despite the
vs. absence of marriage between them; and
TRINIDAD R.A. CAPOTE, Respondent. [Giovanni] has been known by that name since
birth [as per his birth certificate registered at
DECISION the Local Civil Register of San Juan, Southern
Leyte];
CORONA, J.:
6. The father, Diosdado Gallamaso, from the
time [Giovanni] was born and up to the present,
This petition for review on certiorari1 seeks to set aside
failed to take up his responsibilities [to him] on
the Court of Appeals (CA) decision2 dated January 13,
matters of financial, physical, emotional and

226
 spiritual concerns. [Giovanni’s pleas] for
attention along that line [fell] on deaf ears xxx
xxx xxx;
7. [Giovanni] is now fully aware of how he
stands with his father and he desires to have his
surname changed to that of his mother’s
surname;
8. [Giovanni’s] mother might eventually petition
[him] to join her in the United States and [his]
continued use of the surname Gallamaso, the
surname of his natural father, may complicate
[his] status as natural child; and
9. The change of name [from] GIOVANNI N.
GALLAMASO to GIOVANNI NADORES will be
for the benefit of the minor.
xxx xxx xxx4
Respondent prayed for an order directing the local civil
registrar to effect the change of name on Giovanni’s birth
certificate. Having found respondent’s petition sufficient
in form and substance, the trial court gave due course to
the petition.5 Publication of the petition in a newspaper
of general circulation in the province of Southern Leyte
once a week for three consecutive weeks was likewise
ordered.6 The trial court also directed that the local civil
registrar be notified and that the Office of the Solicitor
General (OSG) be sent a copy of the petition and order.7
Since there was no opposition to the petition,
respondent moved for leave of court to present her
evidence ex parte before a court-appointed
commissioner. The OSG, acting through the Provincial
Prosecutor, did not object; hence, the lower court
granted the motion.
After the reception of evidence, the trial court rendered a
decision ordering the change of name from Giovanni N.
Gallamaso to Giovanni Nadores.8
From this decision, petitioner Republic of the Philippines,
through the OSG, filed an appeal with a lone assignment
of error: the court a quo erred in granting the petition in
a summary proceeding.
Ruling that the proceedings were sufficiently adversarial
in nature as required, the CA affirmed the RTC decision
ordering the change of name.9
In this petition, the Republic contends that the CA erred
in affirming the trial court’s decision which granted the
petition for change of name despite the non-joinder of
indispensable parties.10 Petitioner cites Republic of the
Philippines v. Labrador11 and claims that the purported
parents and all other persons who may be adversely
affected by the child’s change of name should have been
made respondents to make the proceeding adversarial.12
We deny the petition.
"The subject of rights must have a fixed symbol for
individualization which serves to distinguish him from all
others; this symbol is his name."13 Understandably,
therefore, no person can change his name or surname
without judicial authority.14 This is a reasonable
requirement for those seeking such change because a
person’s name necessarily affects his identity, interests
and interactions. The State must be involved in the
process and decision to change the name of any of its
citizens.
The Rules of Court provides the requirements and
procedure for change of name. Here, the appropriate
remedy is covered by Rule 103,15 a separate and distinct
proceeding from Rule 108 on mere cancellation and
correction of entries in the civil registry (usually dealing
only with innocuous or clerical errors thereon).16
The issue of non-joinder of alleged indispensable parties
in the action before the court a quo is intertwined with
the nature of the proceedings there. The point is whether
the proceedings were sufficiently adversarial.
Summary proceedings do not extensively address the
issues of a case since the reason for their conduct is
expediency. This, according to petitioner, is not sufficient
to deal with substantial or contentious issues allegedly
resulting from a change of name, meaning, legitimacy as
well as successional rights.17 Such issues are ventilated
only in adversarial proceedings wherein all interested
parties are impleaded and due process is observed.18
When Giovanni was born in 1982 (prior to the enactment
and effectivity of the Family Code of the
Philippines),19 the pertinent provision of the Civil Code
then as regards his use of a surname, read:
Art. 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.
(emphasis ours)
Based on this provision, Giovanni should have carried his
mother’s surname from birth. The records do not reveal
any act or intention on the part of Giovanni’s putative
227
father to actually recognize him. Meanwhile, according to
the Family Code which repealed, among others, Article
366 of the Civil Code:
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.
xxx xxx xxx (emphasis ours)
Our ruling in the recent case of In Re: Petition for Change
of Name and/or Correction/Cancellation of Entry in Civil
Registry of Julian Lin Carulasan Wang20 is enlightening:
Our laws on the use of surnames state that legitimate
and legitimated children shall principally use the surname
of the father. The Family Code gives legitimate children
the right to bear the surnames of the father and the
mother, 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.
Applying these laws, an illegitimate child whose filiation is
not recognized by the father bears only a given name and
his mother’ 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
child.1awphi1.net21
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.
Moreover, it is noteworthy that the cases cited by
petitioner22 in support of its position deal with
cancellation or correction of entries in the civil registry, a
proceeding separate and distinct from the special
proceedings for change of name. Those cases deal with
the application and interpretation of Rule 108 of the
Rules of Court while this case was correctly filed under
Rule 103. Thus, the cases cited by petitioner are irrelevant
and have no bearing on respondent’s case. While the
OSG is correct in its stance that the proceedings for
change of name should be adversarial, the OSG cannot
void the proceedings in the trial court on account of its
own failure to participate therein. As the CA correctly
ruled:
The OSG is correct in stating that a petition for change of
name must be heard in an adversarial proceeding. Unlike
petitions for the cancellation or correction of clerical
errors in entries in the civil registry under Rule 108 of the
Rules of Court, a petition for change of name under Rule
103 cannot be decided through a summary proceeding.
There is no doubt that this petition does not fall under
Rule 108 for it is not alleged that the entry in the civil
registry suffers from clerical or typographical errors. The
relief sought clearly goes beyond correcting erroneous
entries in the civil registry, although by granting the
petition, the result is the same in that a corresponding
change in the entry is also required to reflect the change
in name. In this regard, [appellee] Capote complied with
the requirement for an adversarial proceeding by posting
in a newspaper of general circulation notice of the filing of
the petition. The lower court also furnished the OSG a
copy thereof. Despite the notice, no one came forward to
oppose the petition including the OSG. The fact that no
one opposed the petition did not deprive the court of its
jurisdiction to hear the same nor does it make the
proceeding less adversarial in nature. The lower court is
still expected to exercise its judgment to determine
whether the petition is meritorious or not and not merely
accept as true the arguments propounded. Considering
that the OSG neither opposed the petition nor the
motion to present its evidence ex parte when it had the
opportunity to do so, it cannot now complain that the
proceedings in the lower court were not adversarial
enough.23 (emphasis supplied)
A proceeding is adversarial where the party seeking relief
has given legal warning to the other party and afforded
the latter an opportunity to contest it.24 Respondent gave
notice of the petition through publication as required by
the rules.25 With this, all interested parties were deemed
228
notified and the whole world considered bound by the
judgment therein. In addition, the trial court gave due
notice to the OSG by serving a copy of the petition on it.
Thus, all the requirements to make a proceeding
adversarial were satisfied when all interested parties,
including petitioner as represented by the OSG, were
afforded the opportunity to contest the petition.
WHEREFORE, the petition is hereby DENIED and the
January 13, 2003 decision of the Court of Appeals in CA-
G.R. CV No. 66128 AFFIRMED.
SO ORDERED.
G.R. No. 169202 March 5, 2010
MARIA VIRGINIA V. REMO, Petitioner,
vs.
THE HONORABLE SECRETARY OF FOREIGN
AFFAIRS, Respondent.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review1 of the 27 May
2005 Decision2 and 2 August 2005 Resolution3 of the
Court of Appeals in CA-G.R. SP No. 87710. The Court of
Appeals affirmed the decision of the Office of the
President, which in turn affirmed the decision of the
Secretary of Foreign Affairs denying petitioner’s request
to revert to the use of her maiden name in her
replacement passport.
The Facts
Petitioner Maria Virginia V. Remo is a married Filipino
citizen whose Philippine passport was then expiring on
27 October 2000. Petitioner being married to Francisco R.
Rallonza, the following entries appear in her passport:
"Rallonza" as her surname, "Maria Virginia" as her given
name, and "Remo" as her middle name. Prior to the
expiry of the validity of her passport, petitioner, whose
marriage still subsists, applied for the renewal of her
passport with the Department of Foreign Affairs (DFA)
office in Chicago, Illinois, U.S.A., with a request to revert
to her maiden name and surname in the replacement
passport.
Petitioner’s request having been denied, Atty. Manuel
Joseph R. Bretana III, representing petitioner, wrote then
Secretary of Foreign Affairs Domingo Siason expressing a
similar request.
On 28 August 2000, the DFA, through Assistant Secretary
Belen F. Anota, denied the request, stating thus:
This has reference to your letter dated 17 August 2000
regarding one Ms. Maria Virginia V. Remo who is
applying for renewal of her passport using her maiden
name.
This Office is cognizant of the provision in the law that it
is not obligatory for a married woman to use her
husband’s name. Use of maiden name is allowed in
passport application only if the married name has not
been used in previous application. The Implementing
Rules and Regulations for Philippine Passport Act of 1996
clearly defines the conditions when a woman applicant
may revert to her maiden name, that is, only in cases of
annulment of marriage, divorce and death of the
husband. Ms. Remo’s case does not meet any of these
conditions.4 (Emphasis supplied)
Petitioner’s motion for reconsideration of the above-
letter resolution was denied in a letter dated 13 October
2000.5
On 15 November 2000, petitioner filed an appeal with
the Office of the President.
On 27 July 2004, the Office of the President dismissed the
appeal6 and ruled that Section 5(d) of Republic Act No.
8239 (RA 8239) or the Philippine Passport Act of
1996 "offers no leeway for any other interpretation than
that only in case of divorce, annulment, or declaration [of
nullity] of marriage may a married woman revert to her
maiden name for passport purposes." The Office of the
President further held that in case of conflict between a
general and special law, the latter will control the former
regardless of the respective dates of passage. Since the
Civil Code is a general law, it should yield to RA 8239.
On 28 October 2004, the Office of the President denied
the motion for reconsideration.7
Petitioner filed with the Court of Appeals a petition for
review under Rule 43 of the Rules of Civil Procedure.
In its Decision of 27 May 2005, the Court of Appeals
denied the petition and affirmed the ruling of the Office
of the President. The dispositive portion of the Court of
Appeals’ decision reads:
229
WHEREFORE, premises considered, the petition is
DENIED, and the resolution dated July 27, 2004, and the
order dated October 28, 2004 of the Office of the
President in O.P. Case No. 001-A-9344 are hereby
AFFIRMED.
SO ORDERED.8
Petitioner moved for reconsideration which the Court of
Appeals denied in its Resolution dated 2 August 2005.
Hence, this petition.
The Court of Appeals’ Ruling
The Court of Appeals found no conflict between Article
370 of the Civil Code9 and Section 5(d) of RA 8239.10 The
Court of Appeals held that for passport application and
issuance purposes, RA 8239 limits the instances when a
married woman applicant may exercise the option to
revert to the use of her maiden name such as in a case of
a divorce decree, annulment or declaration of nullity of
marriage. Since there was no showing that petitioner's
marriage to Francisco Rallonza has been annulled,
declared void or a divorce decree has been granted to
them, petitioner cannot simply revert to her maiden
name in the replacement passport after she had adopted
her husband’s surname in her old passport. Hence,
according to the Court of Appeals, respondent was
justified in refusing the request of petitioner to revert to
her maiden name in the replacement passport.1avvphi1
The Issue
The sole issue in this case is whether petitioner, who
originally used her husband’s surname in her expired
passport, can revert to the use of her maiden name in the
replacement passport, despite the subsistence of her
marriage.
The Ruling of the Court
The petition lacks merit.
Title XIII of the Civil Code governs the use of surnames. In
the case of a married woman, Article 370 of the Civil
Code provides:
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."
We agree with petitioner that the use of the word "may"
in the above provision indicates that the use of the
husband’s surname by the wife is permissive rather than
obligatory. This has been settled in the case of Yasin v.
Honorable Judge Shari’a District Court.11
In Yasin,12 petitioner therein filed with the Shari’a District
Court a "Petition to resume the use of maiden name" in
view of the dissolution of her marriage by divorce under
the Code of Muslim Personal Laws of the Philippines, and
after marriage of her former husband to another woman.
In ruling in favor of petitioner therein, the Court
explained that:
When a woman marries a man, she need not apply
and/or seek judicial authority to use her husband’s name
by prefixing the word "Mrs." before her husband’s full
name or by adding her husband’s surname to her maiden
first name. The law grants her such right (Art. 370, Civil
Code). Similarly, when the marriage ties or vinculum no
longer exists as in the case of death of the husband or
divorce as authorized by the Muslim Code, the widow or
divorcee need not seek judicial confirmation of the
change in her civil status in order to revert to her maiden
name as use of her former husband’s is optional and not
obligatory for her (Tolentino, Civil Code, p. 725, 1983 ed.;
Art. 373, Civil Code). When petitioner married her
husband, she did not change her but only her civil status.
Neither was she required to secure judicial authority to
use the surname of her husband after the marriage as no
law requires it. (Emphasis supplied)
Clearly, a married woman has an option, but not a duty,
to use the surname of the husband in any of the ways
provided by Article 370 of the Civil Code.13 She is
therefore allowed to use not only any of the three names
provided in Article 370, but also her maiden name upon
marriage. She is not prohibited from continuously using
her maiden name once she is married because when a
woman marries, she does not change her name but only
her civil status. Further, this interpretation is in
consonance with the principle that surnames indicate
descent.14
In the present case, petitioner, whose marriage is still
subsisting and who opted to use her husband’s surname
in her old passport, requested to resume her maiden
name in the replacement passport arguing that no law
230
prohibits her from using her maiden name. Petitioner
cites Yasin as the applicable precedent. However, Yasin is
not squarely in point with this case. Unlike in Yasin, which
involved a Muslim divorcee whose former husband is
already married to another woman, petitioner’s marriage
remains subsisting. Another point, Yasin did not involve a
request to resume one’s maiden name in a replacement
passport, but a petition to resume one’s maiden name in
view of the dissolution of one’s marriage.
The law governing passport issuance is RA 8239 and the
applicable provision in this case is Section 5(d), which
states:
Sec. 5. Requirements for the Issuance of Passport. — No
passport shall be issued to an applicant unless the
Secretary or his duly authorized representative is satisfied
that the applicant is a Filipino citizen who has complied
with the following requirements: x x x
(d) In case of a woman who is married, separated,
divorced or widowed or whose marriage has been
annulled or declared by court as void, a copy of the
certificate of marriage, court decree of separation,
divorce or annulment or certificate of death of the
deceased spouse duly issued and authenticated by the
Office of the Civil Registrar General: Provided, That in
case of a divorce decree, annulment or declaration of
marriage as void, the woman applicant may revert to the
use of her maiden name: Provided, further, That such
divorce is recognized under existing laws of the
Philippines; x x x (Emphasis supplied)
The Office of the Solicitor General (OSG), on behalf of the
Secretary of Foreign Affairs, argues that the highlighted
proviso in Section 5(d) of RA 8239 "limits the instances
when a married woman may be allowed to revert to the
use of her maiden name in her passport." These instances
are death of husband, divorce decree, annulment or
nullity of marriage. Significantly, Section 1, Article 12 of
the Implementing Rules and Regulations of RA 8239
provides:
The passport can be amended only in the following
cases:
a) Amendment of woman’s name due to
marriage;
b) Amendment of woman’s name due to death
of spouse, annulment of marriage or divorce
initiated by a foreign spouse; or
c) Change of surname of a child who is
legitimated by virtue of a subsequent marriage
of his parents.
Since petitioner’s marriage to her husband subsists,
placing her case outside of the purview of Section 5(d) of
RA 8239 (as to the instances when a married woman may
revert to the use of her maiden name), she may not
resume her maiden name in the replacement
passport.15 This prohibition, according to petitioner,
conflicts with and, thus, operates as an implied repeal of
Article 370 of the Civil Code.
Petitioner is mistaken. The conflict between Article 370 of
the Civil Code and Section 5(d) of RA 8239 is more
imagined than real. RA 8239, including its implementing
rules and regulations, does not prohibit a married woman
from using her maiden name in her passport. In fact, in
recognition of this right, the DFA allows a married
woman who applies for a passport for the first time to
use her maiden name. Such an applicant is not required
to adopt her husband's surname.16
In the case of renewal of passport, a married woman may
either adopt her husband’s surname or continuously use
her maiden name. If she chooses to adopt her husband’s
surname in her new passport, the DFA additionally
requires the submission of an authenticated copy of the
marriage certificate. Otherwise, if she prefers to continue
using her maiden name, she may still do so. The DFA will
not prohibit her from continuously using her maiden
name.17
However, once a married woman opted to adopt her
husband’s surname in her passport, she may not revert to
the use of her maiden name, except in the cases
enumerated in Section 5(d) of RA 8239. These instances
are: (1) death of husband, (2) divorce, (3) annulment, or
(4) nullity of marriage. Since petitioner’s marriage to her
husband subsists, she may not resume her maiden name
in the replacement passport. Otherwise stated, a married
woman's reversion to the use of her maiden name must
be based only on the severance of the marriage.
Even assuming RA 8239 conflicts with the Civil Code, the
provisions of RA 8239 which is a special law specifically
dealing with passport issuance must prevail over the
provisions of Title XIII of the Civil Code which is the
general law on the use of surnames. A basic tenet in
statutory construction is that a special law prevails over a
general law,18 thus:
[I]t is a familiar rule of statutory construction that to the
extent of any necessary repugnancy between a general
and a special law or provision, the latter will control the
231
former without regard to the respective dates of
passage.19
Moreover, petitioner’s theory of implied repeal must fail.
Well-entrenched is the rule that an implied repeal is
disfavored. T he apparently conflicting provisions of a law
or two laws should be harmonized as much as possible,
so that each shall be effective.20 For a law to operate to
repeal another law, the two laws must actually be
inconsistent. The former must be so repugnant as to be
irreconcilable with the latter act.21 This petitioner failed to
establish.1avvphi1
The Court notes that petitioner would not have
encountered any problems in the replacement passport
had she opted to continuously and consistently use her
maiden name from the moment she was married and
from the time she first applied for a Philippine passport.
However, petitioner consciously chose to use her
husband’s surname before, in her previous passport
application, and now desires to resume her maiden
name. If we allow petitioner’s present request, definitely
nothing prevents her in the future from requesting to
revert to the use of her husband’s surname. Such
unjustified changes in one's name and identity in a
passport, which is considered superior to all other official
documents,22 cannot be countenanced. Otherwise, undue
confusion and inconsistency in the records of passport
holders will arise. Thus, for passport issuance purposes, a
married woman, such as petitioner, whose marriage
subsists, may not change her family name at will.
The acquisition of a Philippine passport is a privilege. The
law recognizes the passport applicant’s constitutional
right to travel. However, the State is also mandated to
protect and maintain the integrity and credibility of the
passport and travel documents proceeding from it23 as a
Philippine passport remains at all times the property of the
Government. The holder is merely a possessor of the
passport as long as it is valid and the same may not be
surrendered to any person or entity other than the
government or its representative.24
As the OSG correctly pointed out:
[T]he issuance of passports is impressed with public
interest. A passport is an official document of identity
and nationality issued to a person intending to travel or
sojourn in foreign countries. It is issued by the Philippine
government to its citizens requesting other governments
to allow its holder to pass safely and freely, and in case of
need, to give him/her aid and protection. x x x
Viewed in the light of the foregoing, it is within
respondent’s competence to regulate any amendments
intended to be made therein, including the denial of
unreasonable and whimsical requests for amendments
such as in the instant case.25
WHEREFORE, we DENY the petition. We AFFIRM the 27
May 2005 Decision and 2 August 2005 Resolution of the
Court of Appeals in CA-G.R. SP No. 87710.
SO ORDERED.
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:
232
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.12 Lastly, the CA ruled that there is no
reason to deprive respondent Antonio of his visitorial
233
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 Court15 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
234
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, We gave due
20
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:
235
"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.
At this juncture, We take note of the letters submitted by
the 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
236
 month at the rate of 70% for [Antonio] and 30%
for [Grande]; and
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.
SO ORDERED.
G.R. No. 207147, September 14, 2016
EMELITA BASILIO GAN, Petitioner, v. REPUBLIC OF THE
PHILIPPINES, Respondent.
RESOLUTION
REYES, J.:
This is a petition for review on certiorari1 under Rule 45 of
the Rules of Court seeking to annul and set aside the
Decision2 dated April 26, 2013 issued by the Court of
Appeals (CA) in CA-G.R. CV No. 98112.
Facts
Emelita Basilio Gan (petitioner) was born on December
21, 1956 out of wedlock to Pia Gan, her father who is a
Chinese national, and Consolacion Basilio, her mother
who is a Filipino citizen.3 The petitioner's birth
certificate,4 which was registered in the Office of the
Local Civil Registrar (LCR) of Libmanan, Camarines Sur,
indicates that her full name is Emelita Basilio.
On June 29, 2010, the petitioner filed a Petition5 for
correction of name with the Regional Trial Court (RTC) of
Libmanan, Camarines Sur. The petitioner sought to
change the full name indicated in her birth certificate
from "Emelita Basilio" to "Emelita Basilio Gan." She
claimed that she had been using the name "Emelita
Basilio Gan" in her school records from elementary until
college, employment records, marriage contract, and
other government records.6chanrobleslaw
Ruling of the RTC
On July 15, 2010, the RTC issued an Order, which noted
that the petition filed sought not merely a correction of
entry in the birth certificate, but a change of name.
Accordingly, the RTC ordered the petitioner to make the
necessary amendment to her petition to conform to the
requirements of Rule 103 of the Rules of
Court.7chanrobleslaw
The petitioner filed with the RTC an Amended
Petition8 dated August 3, 2010 for change of name. The
amended petition contained substantially the same
allegations as in the petition for 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
circulation. The Office of the Solicitor General (OSG), as
counsel of 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 OSG in the
proceedings before the RTC.9chanrobleslaw
On July 19, 2011, after due proceedings; the RTC of
Libmanan, Camarines Sur, Branch 29, issued an
Order10 granting the petition for change of name. The
RTC, thus, directed the LCR of Libmanan, Camarines Sur
to change the petitioner's name in her birth certificate
from "Emelita Basilio" to "Emelita Basilio Gan." The RTC
opined that, from the evidence presented, the said
petition was filed solely to put into order the records of
the petitioner and that changing her name in her birth
certificate into Emelita Basilio Gan would avoid confusion
in her personal records.11chanrobleslaw
The respondent sought a reconsideration12 of the RTC
Order dated July 19, 2011, alleging that the petitioner,
who is an illegitimate child, failed to adduce evidence
that she was duly recognized by her father, which would
have allowed her to use the surname of her father.13 On
October 17, 2011, the RTC issued an Order14 denying the
respondent's motion for reconsideration.
Ruling of the CA
On appeal, the CA, in its Decision15 dated April 26, 2013,
reversed and set aside the RTC Orders dated July 19,
2011 and October 17, 2011. The CA opined that pursuant
to Article 176 of the Family 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
only use the surname of her father if their filiation has
been expressly recognized by her father.17 The CA
pointed out that the petitioner has not adduced any
evidence showing that her father had recognized her as
his illegitimate child and, thus, she may not use the
surname of her father.18chanrobleslaw
In this petition for review, the petitioner maintains that
the RTC correctly granted her petition since she only
sought to have her name indicated in her birth certificate
changed to avoid confusion as regards to her personal
records.19 She insists that her failure to present evidence
237
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
238
pronouncement in Coseteng-Magpayo finds no within the jurisdiction of this Honorable Court where it
application in this case. can be served with summons and other processes of this
Honorable Court;
Finally, Lim likewise finds no application in this case.
In Lim, the petition that was filed was for correction of 3. All parties herein have the capacity to sue and be sued;
entries under Rule 108 of the Rules of Court; the petition
sought, among others, is the correction of the surname 4. Petitioner is the daughter of Spouses Vedasto A.
of the respondent therein from "Yo" to "Yu." Further, the Omapas and Almarina A. Albay who was born on April
respondent therein, although an illegitimate child, had 24, 1968 in Baybay, Leyte. A copy of the Baptismal
long been using the surname of her father. It bears Certificate issued by the Parish of the Sacred Heart, Sta.
stressing that the birth certificate of the respondent Mesa, Manila is hereunto attached as Annex "A";
therein indicated that her surname was the same as her
father albeit misspelled. Thus, a correction of entry in her 5. Unfortunately, in recording the facts of her birth, the
birth certificate is appropriate.29chanrobleslaw personnel of the Local Civil Registrar of Baybay, Leyte[,]
thru inadvertence and mistake[,] erroneously entered in
Here, the petitioner filed a petition for change of name the records the following: Firstly, the first name of the
under Rule 103 and not a petition for correction of petitioner as "DOROTHY" instead of "LORENA" and
entries under Rule 108. Unlike in Lim, herein petitioner's Secondly, the date of birth of the petitioner as "June 24,
birth certificate indicated that she bears the surname of 1968" instead of "April 24, 1968." A copy of the Certificate
her mother and not of her father. of Live Birth of Dorothy A. Omapas issued by the
National Statistics Office (NSO) and Certification from the
WHEREFORE, in consideration of the foregoing Local Civil Registrar of Baybay, Leyte are hereunto
disquisitions, the petition is DENIED. attached as Annex "B" and Annex "C" respectively.

SO ORDERED.chanRoblesvirtualLawlibrary 6. The petitioner has been using the name "Lorena A.

G.R. No. 206023, April 03, 2017
REPUBLIC OF THE PHILIPPINES, Petitioner, v. LORENA
OMAPAS SALI, Respondent.
DECISION
PERALTA, J.:
This petition for review on certiorari under Rule 45 of the
Rules of Court (Rules) seeks to annul and set aside the
February 11, 2013 Decision1 of the Court of Appeals (CA)
in CA-G.R. CEB CV No. 03442, which affirmed in toto the
February 23, 2010 Decision of the Regional Trial Court
(RTC), Branch 14, Baybay City, Leyte, granting the Petition
for Correction of Entry under Rule 108 of the Rules filed
by respondent Lorena Omapas Sali (Sali).
The CA narrated the undisputed factual antecedents.
Lorena Omapas Sali filed a Verified Petition, dated
November 26, 2008, for Correction of Entry under Rule
108 of the Rules of Court before the RTC with the
following material averments:
1. Petitioner is a Filipino, of legal age, single and a
resident [of] 941 D. Veloso St.[,] Baybay, Leyte;
2. The respondent is located in Baybay City, Leyte and
Omapas["] and her date of birth as "April 24, 1968" for as
long as she (sic) since she could remember and is known
to the community in general as such;
7. To sustain petitioner's claim that the entries in her
Certificate of Live Birth pertaining to her first name and
date of birth should be corrected so that it will now read
as "LORENA A. OMAPAS" and "April 24, 1968"
respectively, attached hereto are: the Certificate of
Marriage of Morsalyn [D.] Sali and Lorena A. Omapas,
and a photocopy of the Postal Identity Card of the
petitioner as Annex "D" and Annex "E" respectively; [and]
8. This petition is intended neither for the petitioner to
escape criminal and/or civil liability, nor affect the
hereditary succession of any person whomsoever but
solely for the purpose of setting the records of herein
petitioner straight.
[Sali] then prayed for the issuance of an order correcting
her first name from "Dorothy" to "Lorena" and the date
of her birth from "June 24, 1968" to ["]April 24, 1968."
After [Sali] proved her compliance with the jurisdictional
requirements, reception of evidence followed. The Clerk
of Court was then appointed as a commissioner to
receive the evidence in support of the petition.
Subsequently, she rendered a Report relative thereto.
On February 23, 2010, the trial court issued the assailed
Decision in favor of [Sali], the dispositive portion of which
reads:

239

WHEREFORE, this Court, hereby resolves to GRANT this
petition for correction of the erroneous entries in the
Birth Certificate of Lorena A. Omapas-Sali, specifically her
first name from "DOROTHY" to "LORENA" and her date
of birth from "JUNE 24, 1968" to "APRIL 24, 1968", and
ordering the Local Civil Registrar of Baybay City, Leyte,
and the National Statistics Office to effect the foregoing
correction in the birth record of Lorena A. Omapas-Sali,
upon finality of this decision, and upon payment of the
proper legal fees relative thereto.
Furnish copy of this decision to the Office of the Solicitor
General, the Local Civil Registrar of Baybay City, Leyte,
the Assistant Provincial Prosecutor, the petitioner and her
counsel.
SO ORDERED.2
On March 24, 2010, the Republic, through the Office of
the Solicitor General (OSG), appealed the RTC Decision
for lack of jurisdiction on the part of the court a
quo because the title of the petition and the order
setting the petition for hearing did not contain Sali's
aliases.
The CA denied the appeal, ruling that: (1) the records are
bereft of any indication that Sali is known by a name
other than "Lorena," hence, it would be absurd to compel
her to indicate any other alias that she does not have; (2)
Sali not only complied with the mandatory requirements
for an appropriate adversarial proceeding under Rule 108
of the Rules but also gave the Republic an opportunity to
timely contest the purported defective petition; and (3)
the change in the first name of Sali will certainly avoid
further confusion as to her identity and there is no
showing that it was sought for a fraudulent purpose or
that it would prejudice public interest.
Now before Us, the grounds of the petition are as
follows:chanRoblesvirtualLawlibrary
I.
THE COURT OF APPEALS ERRED ON A QUESTION OF
LAW WHEN IT APPLIED RULE 108 INSTEAD OF RULE 103,
THEREBY DISPENSING WITH THE REQUIREMENT OF
STATING THE RESPONDENT'S ALIASES IN THE TITLE OF
THE PETITION.
II.
THE COURT OF APPEALS ERRED ON A QUESTION OF
LAW IN NOT HOLDING THAT THE RESPONDENT FAILED
TO EXHAUST ADMINISTRATIVE REMEDIES.3
The Republic argues that although Sali's petition is
entitled: "IN THE MATTER OF THE PETITION FOR
CORRECTION OF ENTRY IN THE CERTIFICATE OF LIVE
BIRTH OF DOROTHY A. OMAPAS," it is actually a petition
for a change of name. The first name being sought to be
changed does not involve the correction of a simple
clerical, typographical or innocuous error such as a
patently misspelled name, but a substantial change in
Sali's first name. This considering, the applicable rule is
Rule 103, which requires that the applicant's names and
aliases must be stated in the title of the petition and the
order setting it for hearing, and that the petition can be
granted only on specific grounds provided by law.
Further, assuming that a petition for correction of entries
under Rule 108 is the appropriate remedy, the petition
should not have been granted for failure to exhaust
administrative remedies provided for under Republic Act
(R.A.) No. 9048.
The petition is partially granted.
Sali's petition is not for a change of name as
contemplated under Rule 103 of the Rules but for
correction of entries under Rule 108. What she seeks is
the correction of clerical errors which were committed in
the recording of her name and birth date. This Court has
held that not all alterations allowed in one's name are
confined under Rule 103 and that corrections for clerical
errors may be set right under Rule 108.4 The
evidence5 presented by Sali show that, since birth, she
has been using the name "Lorena." Thus, it is apparent
that she never had any intention to change her name.
What she seeks is simply the removal of the clerical fault
or error in her first name, and to set aright the same to
conform to the name she grew up with.6
Nevertheless, at the time Sali's petition was filed, R.A. No.
9048 was already in effect.7 Section 1 of the law
states:chanRoblesvirtualLawlibrary
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. (Emphasis ours)
The petition for change of first name may be allowed,
among other grounds, if the new first name has been
habitually and continuously used by the petitioner and
he or she has been publicly known by that first name in
the community.8 The local city or municipal civil registrar
or consul general has the primary jurisdiction to entertain
the petition. It is only when such petition is denied that a
petitioner may either appeal to the civil registrar general
or file the appropriate petition with the proper court.9 We
stressed in Silverio v. Republic of the Philippines:10
RA 9048 now governs the change of first name. It vests
the power and authority to entertain petitions for change
240
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. It
likewise lays down the corresponding venue, form and
procedure. In sum, the remedy and the proceedings
regulating change of first name are primarily
administrative in nature, not judicial.11
Recently, the Court again said in Onde v. Office of the
Local Civil Registrar of Las Piñas City:12
In Silverio v. Republic, we held that under R.A. No. 9048,
jurisdiction over applications for change of first name is
now primarily lodged with administrative officers. The
intent and effect of said 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. The remedy and the
proceedings regulating change of first name are primarily
administrative in nature, not judicial. In Republic v.
Cagandahan, we said that under R.A. No. 9048, the
correction of clerical or typographical errors can now be
made through administrative proceedings and without
the need for a judicial order. The law removed from the
ambit of Rule 108 of the Rules of Court the correction of
clerical or typographical errors. Thus petitioner can avail
of this administrative remedy for the correction of his and
his mother's first name.13
In this case, the petition, insofar as it prayed for the
change of Sali's first name, was not within the RTC's
primary jurisdiction. It was improper because the remedy
should have been administrative, i.e., filing of the petition
with the local civil registrar concerned. For failure to
exhaust administrative remedies, the RTC should have
dismissed the petition to correct Sali's first name.
On the other hand, anent Sali's petition to correct her
birth date from "June 24, 1968" to "April 24, 1968," R.A.
No. 9048 is inapplicable. It was only on August 15, 2012
that R.A. No. 10172 was signed into law amending R.A.
No. 9048.14 As modified, Section 1 now includes the day
and month in the date of birth and sex of a person,
thus:chanRoblesvirtualLawlibrary
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, the day and
month in the date of birth or sex of a person where it is
patently clear that there was a clerical or typographical
error or mistake in the entry, 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.
(Emphasis ours)
Considering that Sali filed her petition in 2008, Rule
10815 is the appropriate remedy in seeking to correct her
date of birth in the civil registry. Under the Rules, the
following must be observed:chanRoblesvirtualLawlibrary
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.
The Republic did not question the petition to correct
Sali's birth date from "June 24, 1968" to "April 24, 1968."
In fact, it did not contest the CA ruling that the
requirements for an appropriate adversarial proceeding
were satisfactorily complied with. The appellate court
found:chanRoblesvirtualLawlibrary
x x x x
Here, [Sail] filed with the court a quo a verified petition
for the correction of her first name from "Dorothy" to
"Lorena" as well as the date of her birth from "June 24,
1968" to "April 24, 1968." In the petition, she aptly
impleaded the Civil Registrar of Baybay City, Leyte as
respondent. Thereafter, the trial court issued an Order
fixing the time and place for the hearing of the petition.
The Order for hearing was then published once a week
for three consecutive weeks in a newspaper of general
circulation in the province to notify the persons having or
claiming any interest therein. Moreover, said Order was
posted in four public and conspicuous places within the
locality. Subsequently, the Civil Registrar, Solicitor
General and Assistant Provincial Prosecutor were
furnished copies of the Petition and Order to give them
the opportunity to file their respective oppositions
thereto. x x x.16
WHEREFORE, premises considered, the petition
is PARTIALLY GRANTED. The February 11, 2013 Decision
of the Court of Appeals in CA-G.R. CEB CV No. 03442,
241
which affirmed in toto the February 23, 2010 Decision of
the Regional Trial Court, Branch 14, Baybay City, Leyte,
is AFFIRMED WITH MODIFICATION. The Petition for
Correction of Entry in the Certificate of Live Birth of
Dorothy A. Omapas with respect to her first name
is DISMISSED WITHOUT PREJUDICE to its filing with the
local civil registrar concerned.
SO ORDERED.
G.R. No. 222095
IN THE MATTER OF PETITION FOR CANCELLATION OF
CERTIFICATES OF LIVE BIRTH OFYUHARES JAN
BARCELOTE TINITIGAN AND AVEE KYNNA NOELLE
BARCELOTE TINITIGAN JONNA KARLA BAGUIO
BARCELOTE, Petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, RICKY O. TINITIGAN, and
LOCAL CIVIL REGISTRAR, DAVAO CITY, Respondents,
DECISION
CARPIO, J.:
The Case
This petition for review1 assails the 5 March 2015
Decision2 and the3 December 2015 Resolution3 of the
Court of Appeals (CA) in CA-G.R. CV No. 03223-MIN
reversing the 28 February 2013 Decision4 of the Regional
Trial Court of Davao City, Branch 15 (RTC) in SPC. PROC.
No. 12,007-12.
The Facts
In an Amended Petition5 dated 20 September 2012 filed
before the RTC, petitioner Jonna Karla Baguio Barcelote
(Barcelote) stated the following facts:
On 24 June 2008, she bore a child out of wedlock with a
married man named Ricky O. Tinitigan (Tinitigan) in her
relative's residence in Sibulan, Santa Cruz, Davao del Sur.
She was not able to register the birth of their child, whom
she named Yohan Grace Barcelote, because she did not
give birth in a hospital. To hide her relationship with
Tinitigan, she remained in Santa Cruz, Davao del Sur
while Tinitigan lived with his legitimate family in Davao
City and would only visit her. On 24 August 2011, she
bore another child with Tinitigan, whom she named as
Joshua Miguel Barcelote. Again, she did not register his
birth to avoid humiliation, ridicule, and possible criminal
charges. Thereafter, she lost contact with Tinitigan and
she returned to Davao City.
When her first child needed a certificate of live birth for
school admission, Barcelote finally decided to register the
births of both children. She, then, returned to Santa Cruz,
Davao del Sur to register their births. The Local Civil
Registrar of Santa Cruz approved the late registration of
the births of Yohan Grace Barcelote and Joshua Miguel
Barcelote, with Registry Nos. 2012-1344 and 2012-1335,
respectively, after submitting proof that the National
Statistics Office (NSO) has no record of both births on
file.
However, upon submission of the copies of the late
registration of the births to the NSO, Barcelote was
informed that there were two certificates of live birth
(subject birth certificates) with the same name of the
mother and the years of birth of the children in their
office. The subject birth certificates registered by the
Local Civil Registrar of Davao City state the following:
1. Birth Certificate with Registry No. 2008-
21709:
a. Name: Avee Kyna Noelle Barcelote
Tinitigan;
b. Date of Birth: June 4, 2008;
c. Place of Birth: EUP Family Care
Clinic, Holy Cross Agdao Davao City;
d. Informant: Ricky O. Tinitigan.
2. Birth Certificate with Registry No. 2011-
28329:
a. Name: Yuhares Jan Barcelote
Tinitigan;
b. Date of Birth: August 14, 20116
c. Place of Birth: EUP Family Care
Clinic, Holy Cross Agdao Davao City;
d. Informant: Ricky O. Tinitigan.
Thus, Barcelote filed a petition with the RTC for the
cancellation of the subject birth certificates registered by
Tinitigan without her knowledge and participation, and
for containing erroneous entries.
After complying with the jurisdictional requirements,
Barcelote was allowed to present evidence ex parte. In
her testimony, Barcelote reiterated her allegations in the
petition and emphasized that the subject birth
242
certificates were registered by her children's biological
father, Tinitigan, without her knowledge. She also
testified that the subject birth certificates reflected wrong
entries, but she did not present any other evidence.
The Ruling of the RTC
On 28 February 2013, the RTC ruled in favor of Barcelote
and ordered the cancellation of the subject birth
certificates, to wit:
WHEREFORE, premises considered, the petition is hereby
GRANTED. Accordingly, the registration of the Certificate
of Live Birth of Yuhares Jan Barcelote Tinitigan and Avee
Kynna Noelle Barcelote Tinitigan, respectively intended
for Joshua Miguel Barcelote and Yohan Grace Barcelote,
by their putative father Ricky Tinitigan at the Local Civil
Registrar of Davao City without the con[ s ]ent or
knowledge of their mother, herein petitioner, Jonna Karla
Baguio Barcelote, is hereby ordered cancelled.
The Civil Registrar of the Office of the Local Civil Registry
of Davao City is directed/ordered to cause the
cancellation of:
[i] the birth certificate of Avee Kynna Noelle
Barcelote Tinitigan under Registry No. 2008-
21709, and
[ii] the certificate of live birth of Yuhares Jan
Barcelote Tinitigan under Registry No. 2011-
28329.
SO ORDERED.7
The RTC ruled that the subject birth certificates are
legally infirm, because they were registered unilaterally
by Tinitigan without the knowledge and signature of
Barcelote in violation of Section 5, Act No. 3753. The RTC
also held that the subject birth certificates contain void
and illegal entries, because the children use the surname
of Tinitigan, contrary to the mandate of Article 176 of the
Family Code stating that illegitimate children shall use
the surname of their mother.
Moreover, the RTC found that it is not for the best
interest of the children to use the surname of their father,
for there is always a possibility that the legitimate
children or wife may ask the illegitimate children to
refrain from using the surname of their father. The RTC
further held that the subject birth certificates are not
reflective of the correct personal circumstances of the
children because of the glaring differences in the names
and other vital information entered in it.
The Ruling of the CA
On 5 March 2015, the CA reversed and set aside the
decision of the RTC. The CA ruled that the registrations of
the children's births, caused by Tinitigan and certified by
a registered midwife, Erlinda Padilla, were valid under Act
No. 3753, and such registrations did not require the
consent of Barcelote. The CA further ruled that the
children can legally and validly use the surname of
Tinitigan, since Republic Act No. (RA) 9255, amending
Article 176 of the Family Code, allows illegitimate
children to use the surname of their father if the latter
had expressly recognized them through the record of
birth appearing in the civil register,. such as in this case
where Barcelote admitted that Tinitigan personally
registered the children's births and affixed his surname
on the subject birth certificates.
Moreover, the CA found that Barcelote failed to
discharge the burden of proving the falsity of the entries
in the subject birth certificates and to adduce evidence
that the information she provided in the late registration
are the true personal circumstances of her children.
The dispositive portion of the decision states:
FOR THESE REASONS, the Decision dated 28 February
201[3] of the Regional Trial Court, Branch 15, Davao City
is REVERSED and SET ASIDE. The Amended Petition
docketed as Special Proceedings No. 12,007-12 for
cancellation of certificates of live birth of her children,
registered as Yuhares Jan Barcelote Tinitigan and Avee
Kynna Noelle Barcelote Tinitigan in the records of the
Local Civil Registrar of Davao City is DISMISSED for lack
of merit.
SO ORDERED.8
In a Resolution dated 3 December 2015, the CA denied
the motion for reconsideration.9
Hence, this present petition.
The Issues
Barcelote raises the following issues for resolution:
I
The CA erred in not cancelling the certificates of live birth
for YUHARES JAN BARCELOTE TINITIGAN and AVEE
KYNNA BARCELOTE TINITIGAN.
243
 A. Under the Family Code, illegitimate children
shall use the surname and shall be under the
parental authority of their mother. Being the
mother with parental authority, [Barcelote]'s
choice of names for her children upon birth
should prevail.
B. The CA gravely erred and abused its
discretion when it ruled that the RTC did not
have basis for its ruling that the certificates of
birth registered by [Tinitigan] are not reflective
of the true and correct personal circumstances
of the [children].
C. The CA misinterpreted the provisions of Act
No. 3753, otherwise known as the Law on
Registry of Civil Status. It is clear under this law
that in case of an illegitimate child, the birth
certificate must be signed and sworn to by the
mother. Since the certificates of live birth
registered by [Tinitigan] were not signed by
[Barcelote], the same are void.
D. The cancellation of the certificates of live
birth, registered by a father who is married to
another and who abandoned his illegitimate
children, is for the interest and welfare of [the
children].
II.
In the alternative, the CA was incorrect in dismissing the
petition for cancellation on the procedural ground that
[Barcelote] could have filed a petition for correction of
entries under Rule 108 of the Rules of Court. In this case,
the petition for cancellation was filed under Rule 108 of
the Rules of Court, which governs both "Petition for
Cancellation or Correction of Entries in the Civil Registry".
Under this rule, even ubstantial errors in a civil register
may be corrected and the true facts established, provided
the party aggrieved by the error avail of the appropriate
adversary proceeding, which [Barcelote] did. Instead
ofdismissing the petition outright, considering that the
jurisdictional requirements for correction [have] also
been complied with, at the very least, the CA should have
treated the petition for cancellation as one for correction
and ordered the necessary corrections, especially as to
thenames of [the children].10
We grant the petition.
Prior to its amendment, Article 176 of the Family
Code11 reads:
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.
(Emphasis supplied)
This has been implemented in the National Statistics
Office Administrative Order No. 1-93 or the
Implementing Rules and Regulations of Act No. 3753 and
Other Laws on Civil Registration (IRR of Act No.
3753),12 to wit:
RULE 23. Birth Registration of Illegitimate children. - (1)
Children conceived or born during the marriage of the
parents are legitimate. Children conceived and born
outside a valid marriage unless otherwise provided in the
Family Code are illegitimate.
(2) An illegitimate child born before 3 August 1988 and
acknowledged by both parents shall principally use the
surname of the father. If recognized by only one of the
parents, the illegitimate child shall carry the surname of
the acknowledging parent. If no parent acknowledged
the child, he shall carry the surname of the mother.
(3) The name/s of the acknowledging parent/s, shall be
indicated in the Certificate of Live Birth.
(4) An illegitimate child born on or after 3 August 1988
shall bear the surname of the mother. (Emphasis supplied)
Upon the effectivity of RA 9255,13 the provision that
illegitimate children shall use the surname and shall be
under the parental authority of their mother was
retained, with an added provision that they may use the
surname of their father if their filiation has been expressly
recognized by their father. Thus, Article 176 of the Family
Code, as amended by RA 9255, provides:
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)
244
In Grande v. Antonio, 14 we held that "the use of the word
'may' in [Article 176 of the Family Code, as amended by
RA 9255] 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 discretion upon the illegitimate
children."15 Thus, the Revised Implementing Rules and
Regulations (IRR) of RA 9255, which apply to all
illegitimate children born during the effectivity of RA
9255, state:
Rule 8. Effects of Recognition.
8.1 As a rule, an illegitimate child not acknowledged by
the father shall use the surname of the mother.
8.2 Illegitimate child acknowledged by the father shall
use the surname of the mother if no [Affidavit to Use the
Surname of the Father] (AUSF) is executed.1âwphi1
8.3 An illegitimate child aged 0-6 years old
acknowledged by the father shall use the surname of the
father, if the mother or the guardian, in the absence of
the mother, executes the AUSF.
8.4 An illegitimate child aged 7 to 17 years old
acknowledged by the father shall use the surname of the
father if the child executes an AUSF fully aware of its
consequence as attested by the mother or guardian.
8.5 Upon reaching the age of majority, an illegitimate
child acknowledged by the father shall use the surname
of his father provided that he executes an AUSF without
need of any attestation.
The law is clear that illegitimate children shall use the
surname and shall be under the parental authority of
their mother. The use of the word "shall" underscores its
mandatory character. The discretion on the part of the
illegitimate child to use the surname of the father is
conditional upon proof of compliance with RA 9255 and
its IRR.
Since the undisputed facts show that the children were
born outside a valid marriage after 3 August 1988,
specifically in June 2008 and August 2011, respectively,
then they are the illegitimate children of Tinitigan and
Barcelote. The children shall use the surname of their
mother, Barcelote. The entry in the subject birth
certificates as to the surname of the children is therefore
incorrect; their surname should have been "Barcelote"
and not "Tinitigan."
We do not agree with the CA that the subject birth
certificates are the express recognition of the children's
filiation by Tinitigan, because they were not duly
registered in accordance with the law.
Act No. 3753, otherwise known as the Civil Registry
Law,16 states:
Section 5. Registration and Certification of Birth. -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 the 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 newly born child.
In such declaration, the persons 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; (f) and such other data
may be required in the regulation to be issued.
In the case of an exposed child, the person who found
the same shall report to the local civil registrar the place,
date and hour of finding and other attendant
circumstances.
In case of an illegitimate child, the birth certificate shall be
signed and sworn to jointly by the parents of the infant or
only the mother if the father refuses.
In the latter case, it shall not be permissible to state or
reveal in the document the name of the father who
refuses to acknowledge the child, or to give therein any
information by which such father could be identified.
Any fetus having human features which dies after twenty
four hours of existence completely disengaged from the
maternal womb shall be entered in the proper registers
as having been born and having died. (Emphasis
supplied)
In Calimag v. Heirs of Macapaz, 17 we held that "under
Section 5 of Act No. 3753, the declaration
of either parent of the [newborn] legitimate child shall be
sufficient for the registration of his birth in the civil
register, and only in the registration of birth of an
illegitimate child does the law require that the birth
certificate be signed and sworn to jointly by the parents
of the infant, or only by the mother if the father refuses
to acknowledge the child."18
245
The first paragraph of Section 5 of Act No. 3753 assumes from the fact that the entry in the subject birth
that the newborn child is legitimate since our law accords certificates as to the surname of the children is incorrect
a strong presumption in favor of legitimacy of since it should have been that of the mother, the subject
children.19 On the other hand, the fourth paragraph of birth certificates are also incomplete as they lacked the
Section 5 specifically provides that in case of an signature of the mother.
illegitimate child, the birth certificate shall be signed and
sworn to jointly by the parents of the infant or only the Acts executed against the provisions of mandatory or
mother if the father refuses. The fourth paragraph of prohibitory laws shall be void.28 In Babiera v.
Section 5 specifically applies to an illegitimate child and Catotal, 29 we declared as void and cancelled a birth
likewise underscores its mandatory character with the use certificate, which showed that the mother was already 54
of the word "shall." Lex special is derogat generali. Where years old at the time of the child's birth and which was
there is in the same statute a particular enactment and not signed either by the civil registrar or by the supposed
also a general one which, in its most comprehensive mother.
sense, would include what is embraced in the former, the
particular enactment must be operative, and the general
Accordingly, we declare the subject birth certificates void
enactment must be taken to affect only such cases within
and order their cancellation for being registered against
its general language which are not within the provision of
the mandatory provisions of the Family Code requiring
the particular enactment.20
the use of the mother's surname for her illegitimate
children and Act No. 3753 requiring the signature of the
Thus, it is mandatory that the mother of an illegitimate mother in her children's birth certificates.
child signs the birth certificate of her child in all cases,
irrespective of whether the father recognizes the child as
In all actions concerning children, whether undertaken by
his or not. The only legally known parent of an
public or private social welfare institutions, courts of law,
illegitimate child, by the fact of illegitimacy, is the mother
administrative authorities or legislative bodies, the best
of the child who conclusively carries the blood of the
interests of the child shall be the primary consideration.30
mother.21 Thus, this provision ensures that individuals are
not falsely named as parents.22
WHEREFORE, we GRANT the petition.
We REVERSE and SET ASIDE the 5 March 2015 Decision
The mother must sign and agree to the information
and the 3 December 2015 Resolution of the Court of
entered in the birth certificate because she has the
Appeals in CA-G.R. CV No. 03223-MIN.
parental authority and custody of the illegitimate child.
We REINSTATE the 28 February 2013 Decision of the
In Briones v. Miguel, 23 we held that an illegitimate child
Regional Trial Court of Davao City, Branch 15, in SPC.
is under the sole parental authority of the mother, and
PROC. No. 12,007-12. The Civil Registrar of the Office of
the mother is entitled to have custody of the child. The
the Local Civil Registry of Davao City is ordered
right of custody springs from the exercise of parental
to CANCEL: (1) the Certificate of Live Birth of Avee Kynna
authority.24 Parental authority is a mass of rights and
Noelle Barcelote Tinitigan under Registry No. 2008-21709
obligations which the law grants to parents for the
and (2) the Certificate of Live Birth of Yuhares Jan
purpose of the children's physical preservation and
Barcelote Tinitigan under Registry No. 2011-28329.
development, as well as the cultivation of their intellect
and the education of their heart and senses.25
SO ORDERED.

Since it appears on the face of the subject birth

certificates that the mother did not sign the documents, G.R. No. 231998
the local civil registrar had no authority to register the
subject birth certificates. Under the IRR of Act No. 3753, ERIC SIBAYAN CHUA, Petitioner
the civil registrar shall see to it that the Certificate of Live vs.
Birth presented for registration is properly and REPUBLIC OF THE PHILIPPINES, Respondent
completely filled up, and the entries are correct.26 In case
the entries are found incomplete or incorrect, the civil DECISION
registrar shall require the person concerned to fill up the
document completely or to correct the entries, as the
Nature of the Case
case may be.27

For consideration of the Court is the Petition for Review

Clearly, the subject birth certificates were not executed
on Certiorari under Rule 45 of the Rules of Court assailing
consistent with the provisions of the law respecting the
the November 7, 2016 Decision1 and May 19, 2017
registration of birth of illegitimate children.1âwphi1 Aside

246
Resolution2 of the Court of Appeals (CA) in CA-G.R. CV
No. 102624. The assailed rulings disallowed petitioner
from changing the name registered in his birth certificate
from "Eric Sibayan Kiat" (Eric) to "Eric Sibayan Chua."
The Facts
On January 7, 2013, Eric filed a petition for change of
surname from "Kiat" to "Chua." In his petition,3 Eric
alleged that he was born on November 8, 1973 to a
Chinese father named "Cheong Kiat" (Cheong) and a
Filipino mother named "Melania Sibayan" (Melania).
However, after his birth, his father Cheong allegedly
secured a favorable judgment allowing him (Cheong) to
change his surname from "Kiat" to "Chua." Thus, Eric
adopted the new surname of his father, "Chua," and had
been using the name "Eric Sibayan Chua" in all of his
credentials. Eric likewise averred in his petition that he is
known in their community as "Eric Chua" instead of "Eric
Kiat." The petition was docketed as Special Proceeding
Case No. 907 before the Regional Trial Court (RTC),
Branch 34, in Balaoan, La Union.
After the RTC found that the petition is sufficient in form
and substance, and upon establishing the requisite
jurisdictional facts, trial ensued on May 21, 2013. Eric
testified that he was not able to secure a copy of his
father's birth certificate since the latter was born in China;
that his mother Melania told him that his father Cheong
changed his surname from "Kiat" to "Chua;"4 and that his
Certificate of Live Birth is the only document where his
surname appears as "Kiat." Offered in evidence were his
Certificate of Baptism, Voter Certification, Police
Clearance, National Bureau of Investigation Clearance,
Passport, High School Diploma, and the Certificates of
Live Birth of his children, which all state Eric's name to be
"Eric Sibayan Chua."5
Melania also testified in support of the petition, claiming
that Cheong used the surname "Kiat" in China, but used
"Chua" in the Philippines; that "Chua" is the surname
Cheong used when they married; that it was her uncle
who erroneously caused the registration of Eric's name as
"Eric Kiat;" and that when Eric was 16, Cheong, who was
already weak, returned to China and contacted them no
longer.6
The asseveration that Eric is known in their community as
"Eric Chua" was corroborated by his neighbor, Avelino
Fernandez.7
Ruling of the Regional Trial Court
Finding the change of name as nothing more than a
straightening of the records, the RTC rendered its January
22, 2014 Decision8 granting the petition in the following
wise:
WHEREFORE PREMISES CONSIDERED, the Court hereby
orders the Local Civil Registrar of Balaoan, La Union to
change the name of the petitioner from ERIC S. KIAT to
ERIC S. CHUA in his Certificate of Live Birth under
Registry No. 422-K-73 of the Local Civil Registrar of
Balaoan, La Union.
Let a copy of the judgment be furnished the Office of the
Local Civil Registrar, Balaoan, La Union and the National
Statistics Office (NSO), Quezon City, Metro Manila for
guidance, information and execution of the necessary
corrections and the subsequent issuance of the
updated/corrected Certificate of Live Birth.
SO ORDERED.9
The Republic, represented by the Office of the Solicitor
General, interposed an appeal from the foregoing ruling.
Ruling of the Court of Appeals
On November 7, 2016, the CA rendered the assailed
Decision reversing the RTC, thusly:
WHEREFORE, the instant appeal is hereby GRANTED. The
January 22, 2014 Decision of the Regional Trial Court,
Branch 34, Balaoan, La Union in Special Proceedings Case
No. 907 is REVERSED and SET ASIDE. The petition for
change of name filed by petitioner-appellee Eric Sibayan
Kiat is DISMISSED for lack of factual and legal basis.
SO ORDERED.10
According to the CA, Eric failed to establish a compelling
ground for changing his name. The CA deemed that
there was no proof offered tending to establish that Eric's
father, Cheong, was able to secure a court judgment
allowing him to officially change his surname from "Kiat"
to "Chua." Eric and Melania's testimonies were seen as
mere allegations that do not satisfy the requisite
quantum of evidence to establish such fact. There was
then no basis for Eric's adoption of the surname
"Chua."11 The appellate court likewise held that no proof
was offered to show that Eric will be prejudiced by his
use of his registered name.12 Thus, since Eric's evidence
fell short of preponderant, his petition for change of
name must necessarily be dismissed, so the CA ruled.
Through its May 19, 2017 Resolution, the CA denied Eric's
motion for reconsideration from the above-
ruling.1âwphi1 Hence, the instant recourse.
247
The Issue
The issue to be resolved herein is simply whether or not
the appellate court erred in disallowing petitioner from
officially changing his name.
The Court's Ruling
The petition is meritorious.
Contrary to the ruling of the CA, there is legal and factual
basis for granting Eric's petition for change of name. To
recall, his petition is not only anchored on his father's
alleged change of surname from "Kiat" to "Chua," but
also on the fact that he (Eric) had been using the
surname "Chua" in all of his credentials. Thus, it may be
that Eric and Melania's testimonies are not preponderant
proof of Cheong's change of surname, but this should
not foreclose the possibility of granting the petition on a
different ground.
In Republic v. Coseteng-Magpayo,13 the Court
enumerated several recognized grounds that can be
invoked by a person desirous of changing his name, viz:
(a) when the name is ridiculous, dishonorable or
extremely difficult to write or pronounce;
(b) when the change results as a legal consequence such
as 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.14 (emphasis added)
Avoidance of confusion was invoked in Alfon v.
Republic,15 wherein the Court granted the petition for
change of name of Maria Estrella Veronica Primitiva
Duterte to Estrella S. Alfon. In allowing the change of
name, the Court held that:
In the case at bar, it has been shown that petitioner has,
since childhood, borne the name Estrella S. Alfon
although her birth records and baptismal certificate show
otherwise; she was enrolled in the schools from the
grades up to college under the name Estrella S. Alfon; all
her friends call her by this name; she finished her course
in Nursing in college and was graduated and given a
diploma under this name; and she exercised the right of
suffrage likewise under this name. There is therefore
ample justification to grant fully her petition which is not
whimsical but on the contrary is based on a solid and
reasonable ground, i.e. to avoid confusion.16
The same circumstances are attendant in the case at bar.
As Eric has established, he is known in his community as
"Eric Chua," rather than "Eric Kiat." Moreover, all of his
credentials exhibited before the Court, other than his
Certificate of Live Birth, bear the name "Eric Chua." Guilty
of reiteration, Eric's Certificate of Baptism, Voter
Certification, Police Clearance, National Bureau of
Investigation Clearance, Passport, and High School
Diploma all reflect his surname to be "Chua." Thus, to
compel him to use the name "Eric Kiat" at this point
would inevitably lead to confusion. It would result in an
alteration of all of his official documents, save for his
Certificate of Live Birth. His children, too, will
correspondingly be compelled to have their records
changed. For even their own Certificates of Live Birth
state that their father's surname is "Chua." To deny this
petition would then have ramifications not only to Eric's
identity in his community, but also to that of his children.
The imperatives of avoiding confusion dictate that the
instant petition be granted. Additionally, public
respondent failed to demonstrate that allowing petitioner
to change his surname will prejudice the State,
strengthening Our resolve to grant the sought-after
relief.
WHEREFORE, premises considered, the petition is hereby
GRANTED. The November 7, 2016 Decision and May 19,
2017 Resolution of the Court of Appeals (CA) in CA-G.R.
CV No. 102624 are hereby REVERSED and SET ASIDE. The
January 22, 2014 Decision of the Regional Trial Court
(RTC) - Branch 34, Balaoan, La Union, in Special
Proceeding Case No. 907 is hereby REINSTATED. SO
ORDERED.
REPUBLIC OF THE PHILIPPINES, Petitioner
vs.
MICHELLE SORIANO GALLO, Respondent
Names are labels for one's identity. They facilitate social
interaction, including the allocation of rights and
determination of liabilities. It is for this reason that the
State has an interest in one's name.
248
The name through which one is known is generally,
however, not chosen by the individual who bears it.
Rather, it is chosen by one's parents. In this sense, the
choice of one's name is not a product of the exercise of
autonomy of the individual to whom it refers.
In view of the State's interest in names as markers of
one's identity, the law requires that these labels be
registered. Understandably, in some cases, the names so
registered or other aspects of one's identity that pertain
to one's name are not reflected with accuracy in the
Certificate of Live Birth filed with the civil registrar.
Changes to one's name, therefore, can be the result of
either one of two (2) motives. The first, as an exercise of
one's autonomy, is to change the appellation that one
was given for various reasons. The other is not an
exercise to change the label that was given to a person; it
is simply to correct the data as it was recorded in the Civil
Registry.
This is a Petition for Review1 under Rule 45 assailing the
April 29, 2013 Decision2 of the Court of Appeals in CA-
G.R. CV No. 96358, which denied the Republic of the
Philippines' appeal 3 from the Regional Trial Court
December 7, 2010 Order4 granting herein respondent
Michelle Soriano Gallo's (Gallo) Petition for Correction of
Entry of her Certificate of Live Birth.
To accurately reflect these facts in her documents, Gallo
prayed before the Regional Trial Court of Ilagan City,
Isabela in Special Proc. No. 21555 for the correction of her
name from "Michael" to "Michelle" and of her biological
sex from "Male" to "Female" under Rule 1086 of the Rules
of Court.7
In addition, Gallo asked for the inclusion of her middle
name, "Soriano"·' her mother's middle name,
"Angangan"; her father's middle name, "Balingao"; and
her parent's marriage date, May 23, 1981, in her
Certificate of Live Birth, as these were not recorded. 8
As proof, she attached to her petition copies of her
diploma, voter's certification, official transcript of records,
medical certificate, mother's birth certificate, and parents'
marriage certificate. 9
The Regional Trial Court, having found Gallo's petition
sufficient in form and substance, set a hearing on August
2, 2010. It also ordered the publication of the Notice of
Hearing once a week for three (3) consecutive weeks in a
newspaper of general circulation in the Province of
Isabela.10
The Office of the Solicitor General authorized the Office
of the Provincial Prosecutor to appear on its
behalf. 11 Trial then ensued.
During trial, Gallo testified on her allegations. She
showed that her college diploma, voter's certification,
and transcript indicated that her name was "Michelle
Soriano Gallo." The doctor who examined her also
certified that she was female. 12 On cross-examination,
Gallo explained that she never undertook any gender-
reassignment surgery and that she filed the petition not
to evade any civil or criminal liability, but to obtain a
passport. 13
The Regional Trial Court, in its December 7, 20 I 0 Order,
granted the petition. 14 It lent credence to the documents
Gallo presented and found that the corrections she
sought were "harmless and innocuous."15 It concluded
that there was a necessity to correct Gallo's Certificate of
Live Birth and applied Rule I 08 of the Rules of
Court, 16 citing Republic v. Cagandahan. 17 Thus:
WHEREFORE, above premises considered, an order is
hereby issued directing the Civil Registrar General, NSO
through the Municipal Civil Registrar of Ilagan, Isabela to
correct the entries in the Birth Certificate of the petitioner
as well as in the National Statistics Office Authenticated
copy particularly her first name "MICHAEL" to
"MICHELLE", gender from "MALE" to "FEMALE'', middle
name of petitioner to be entered as "SORIANO", middle
names of petitioner's parents to be properly supplied as
"ANGANGAN" for the mother and "BALINGAO" for the
father, as well as date of marriage of petitioner's parents
to be recorded as "MAY 23, 1981 ", after payment of legal
fees if there be any.
SO ORDERED.18
The Office of the Solicitor General appealed, alleging that
the applicable rule should be Rule 103 of the Rules of
Court for Petitions for Change of Name. 19 It argued that
Gallo did not comply with the jurisdictional requirements
under Rule 103 because the title of her Petition and the
published Order did not state her official name, "Michael
Gallo."20 Furthermore, the published Order was also
defective for not stating the cause of the change of
name.21
The Court of Appeals, in its assailed April 29, 2013
Decision, denied the Office of the Solicitor General's
appeal.22 It found that Gallo availed of the proper remedy
under Rule 108 as the corrections sought were clerical,
harmless, and innocuous.23 It further clarified that Rule
108 is limited to the implementation of Article 412 of the
Civil Code24 and that the proceedings which stem from it
249
can "either be summary, if the correction sought is
clerical, or adversary . . . if [it] affects . . . civil status,
citizenship or nationality ... which are deemed substantial
corrections."25
The Court of Appeals discussed that Rule 103, on the
other hand, "governs the proceeding for changing the
given or proper name of a person as recorded in the civil
register."26
Jurisprudence has recognized the following grounds as
sufficient to warrant a change of name, to wit: (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.27
The Court of Appeals also stated that Republic Act No.
10172, "the present law on the matter, classifies a change
in the first name or nickname, or sex of a person as
clerical error that may be corrected without a judicial
order."28 It applied this ruling on the inclusion of Gallo's
middle name, her parents' middle names, and the latter's
date of marriage, as they do not involve substantial
corrections.29
As the petition merely involved the correction of clerical
errors, the Court of Appeals held that a summary
proceeding would have sufficed. With this determination,
the Regional Trial Court's more rigid and stringent
adversarial proceeding was more than enough to satisfy
the procedural requirements under Rule 108. 30
However, the Republic, through the Office of the Solicitor
General, believes otherwise. For it, Gallo wants to change
the name that she was given. Thus, it filed the present
Petition via Rule 45 under the 1997 Rules of Civil
Procedure. The Petition raises procedural errors made by
the Regional Trial Court and the Court of Appeals in
finding for Gallo.31
Citing Republic v. Mercadera,32 petitioner argues that
"only clerical, spelling, typographical and other
innocuous errors in the civil registry may be raised" in
petitions for correction under Rule 108.33 Thus, the
correction must only be for a patently misspelled
name.34 As "Michael" could not have been the result of
misspelling "Michelle," petitioner contends that the case
should fall under Rule 103 for it contemplates a
substantial change. 35
Petitioner holds that since the applicable rule is Rule 103,
Gallo was not able to comply with the jurisdictional
requirements for a change of name under Section 2 of
this Rule. 36 It also argues that the use of a different name
is not a reasonable ground to change name under Rule
103. 37
Finally, petitioner insists that Gallo failed to exhaust
administrative remedies and observe the doctrine of
primary jurisdiction38 as Republic Act No. 9048 allegedly
now governs the change of first name, superseding the
civil registrar's jurisdiction over the matter.39
To support its claim, it cited Silverio v. Republic, 40 which
held that "[t]he intent and effect of the law is to exclude
the change of first name from the coverage of Rules 103
... and 108 ... of the Rules of Court, until and unless an
administrative petition for change of name is first filed
and subsequently denied."41
Respondent Gallo, in her Comment, 42 counters that the
issue of whether or not the petitioned corrections are
innocuous or clerical is a factual issue, which is improper
in a Petition for Review on Certiorari under Rule 45.43 In
any case, she argues that the corrections are clerical;
hence, the applicable rule is Rule 108 and not Rule 103,
with the requirements of an adversarial proceeding
properly satisfied. 44 Lastly, she contends that petitioner
has waived its right to invoke the doctrines of non-
exhaustion of administrative remedies and primary
jurisdiction when it failed to file a motion to dismiss
before the Regional Trial Court and only raised these
issues before this Court. 45
Petitioner filed its Reply.46 The case was then submitted
for resolution after the parties filed their respective
Memoranda.47
The issues for this Court's resolution are:
First, whether or not the Republic of the Philippines
raised a question of fact in alleging that the change
sought by Michelle Soriano Gallo is substantive and not a
mere correction of error;
Second, whether or not Michelle Soriano Gallo's petition
involves a substantive change under Rule 103 of the
Rules of Court instead of mere correction of clerical
errors; and
250
Finally, whether or not Michelle Soriano Gallo failed to
exhaust administrative remedies and observe the
doctrine of primary jurisdiction.1âwphi1
This Court finds for the respondent.1âwphi1 Hers was a
Petition to correct the entry in the Civil Registry.
I the nature of the determination sought.
In assailing the Court of Appeals' ruling that the change
sought by Gallo was a mere correction of error, petitioner
raises a question of fact not proper under a Rule 45
Petition, which should only raise questions of law.
Time and again, it has been held that this Court is not a
trier of facts. Thus, its functions do not include weighing
and analyzing evidence adduced from the lower courts
all over again.
In Spouses Miano v. Manila Electric Co.48:
The Rules of Court states that a review of appeals filed
before this Court is "not a matter of right, but of sound
judicial discretion." The Rules of Court further requires
that only questions of law should be raised in petitions
filed under Rule 45 since factual questions are not the
proper subject of an appeal by certiorari. It is not this
Court's function to once again analyze or weigh evidence
that has already been considered in the lower courts.
Bases Conversion Development Authority v.
Reyes distinguished a question of law from a question of
fact:
Jurisprudence dictates that there is a "question of law"
when the doubt or difference arises as to what the law is
on a certain set of facts or circumstances; on the other
hand, there is a "question of fact" when the issue raised
on appeal pertains to the truth or falsity of the alleged
facts. The test for determining whether the supposed
error was one of "law" or "fact" is not the appellation
given by the parties raising the same; rather, it is whether
the reviewing court can resolve the issues raised without
evaluating the evidence, in which case, it is a question of
law; otherwise, it is one of fact. In other words, where
there is no dispute as to the facts, the question of
whether or not the conclusions drawn from these facts
are correct is a question of law. However, if the question
posed requires a re-evaluation of the credibility of
witnesses, or the existence or relevance of surrounding
circumstances and their relationship to each other, the
issue is factual. 49 (Emphasis supplied)
In the case at bar, petitioner raises an issue which
requires an evaluation of evidence as determining
whether or not the change sought is a typographical
error or a substantive change requires looking into the
party's records, supporting documents, testimonies, and
other evidence.
On changes of first name, Republic Act No. 10172, which
amended Republic Act No. 9048, is helpful in identifying
Republic Act No. 1017250 defines a clerical or
typographical error as a recorded mistake, "which
is visible to the eyes or obvious to the
understanding." Thus:
Section 2. Definition of Terms. - As used in this Act, the
following terms shall mean:
....
(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, mistake in
the entry of day and month in the date of birth or the sex
of the person 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, or status of the
petitioner. 51
Likewise, Republic Act No. 904852 states:
Section 2. Definition of Terms. - As used in this Act, the
following terms shall mean:
....
(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.53
By qualifying the definition of a clerical, typographical
error as a mistake "visible to the eyes or obvious to the
understanding," the law recognizes that there is a factual
251
determination made after reference to and evaluation of
existing documents presented.
Thus, corrections may be made even though the error is
not typographical if it is "obvious to the understanding,"
even if there is no proof that the name or circumstance in
the birth certificate was ever used.
This Court agrees with the Regional Trial Court's
determination, concurred in by the Court of Appeals, that
this case involves the correction of a mere error. As these
are findings of fact, this Court is bound by the lower
courts' findings.
II.A
In any case, Rule 103 of the Rules of Court does not
apply to the case at bar. The change in the entry of
Gallo's biological sex is governed by Rule 108 of the
Rules of Court while Republic Act No. 9048 applies to all
other corrections sought.
Under Article 407 of the Civil Code, the books in the Civil
Register include "acts, events and judicial decrees
concerning the civil status of persons,"54 which are prima
facie evidence of the facts stated there.55
Entries in the register include births, marriages, deaths,
legal separations, annulments of marriage, judgments
declaring marriages void from the beginning,
legitimations, adoptions, acknowledgments of natural
children, naturalization, loss or recovery of citizenship,
civil interdiction, judicial determination of filiation,
voluntary emancipation of a minor, and changes of
name.56
As stated, the governing law on changes of first name is
currently Republic Act No. 10172, which amended
Republic Act No. 9048. Prior to these laws, the controlling
provisions on changes or corrections of name were
Articles 376 and 412 of the Civil Code.
Article 376 states the need for judicial authority before
any person can change his or her name. 57 On the other
hand, Article 412 provides that judicial authority is also
necessary before any entry in the civil register may be
changed or corrected. 58
Under the old rules, a person would have to file an action
in court under Rule 103 for substantial changes in the
given name or surname provided they fall under any of
the valid reasons recognized by law, or Rule 108 for
corrections of clerical errors.
This requirement for judicial authorization was justified to
prevent fraud and allow other parties, who may be
affected by the change of name, to oppose the matter, as
decisions in these proceedings bind the whole world.59
Rule 103 procedurally governs judicial petitions for
change of given name or surname, or both, pursuant to
Article 376 of the Civil Code. This rule provides the
procedure for an independent special proceeding in
court to establish the status of a person involving his
relations with others, that is, his legal position in, or with
regard to, the rest of the community. In petitions for
change of name, a person avails of a remedy to alter the
"designation by which he is known and called in the
community in which he lives and is best known." When
granted, a person's identity and interactions are affected
as he bears a new "label or appellation for the
convenience of the world at large in addressing him, or in
speaking of, or dealing with him." Judicial permission for
a change of name aims to prevent fraud and to ensure a
record of the change by virtue of a court decree.
The proceeding under Rule 103 is also an action in
rem which requires publication of the order issued by the
court to afford the State and all other interested parties
to oppose the petition. When complied with, the decision
binds not only the parties impleaded but the whole
world. As notice to all, publication serves to indefinitely
bar all who might make an objection. "It is the
publication of such notice that brings in the whole world
as a party in the case and vests the court with jurisdiction
to hear and decide it."
Essentially, a change of name does not define or effect a
change of one's existing family relations or in the rights
and duties flowing therefrom. It does not alter one's legal
capacity or civil status. However, "there could be
instances where the change applied for may be open to
objection by parties who already bear the surname
desired by the applicant, not because he would thereby
acquire certain family ties with them but because the
existence of such ties might be erroneously impressed on
the public mind." Hence, in requests for a change of
name, "what is involved is not a mere matter of
allowance or disallowance of the request, but a judicious
evaluation of the sufficiency and propriety of the
justifications advanced ... mindful of the consequent
results in the event of its grant ... "60 (Citations omitted)
Applying Article 412 of the Civil Code, a person desiring
to change his or her name altogether must file a petition
under Rule 103 with the Regional Trial Court, which will
then issue an order setting a hearing date and directing
the order's publication in a newspaper of general
circulation.61
252
After finding that there is proper and reasonable cause to
change his or her name, the Regional Trial Court may
grant the petition and order its entry in the civi1
register.62
On the other hand, Rule 108 applies when the person is
seeking to correct clerical and innocuous mistakes in his
or her documents with the civil register. 63 It also governs
the correction of substantial errors in the entry of the
information enumerated in Section 2 of this Rule64 and
those affecting the civil status, citizenship, and nationality
of a person.65 The proceedings under this rule may either
be summary, if the correction pertains to clerical
mistakes, or adversary, if it pertains to substantial
errors. 66
As explained in Republic v. Mercadera:67
Finally in Republic v. Valencia, the above[-]stated views
were adopted by this Court insofar as even substantial
errors or matters in a civil registry may be corrected and
the true facts established, provided the parties aggrieved
avail themselves of the appropriate adversary
proceeding. "If the purpose of the petition is merely to
correct the clerical errors which are visible to the eye or
obvious to the understanding, the court may, under a
summary procedure, issue an order for the correction of
a mistake. However, as repeatedly construed, changes
which may affect the civil status from legitimate to
illegitimate, as well as sex, are substantial and
controversial alterations which can only be allowed after
appropriate adversary proceedings depending upon the
nature of the issues involved. Changes which affect the
civil status or citizenship of a party are substantial in
character and should be threshed out in a proper action
depending upon the nature of the issues in controversy,
and wherein all the parties who may be affected by the
entries are notified or represented and evidence is
submitted to prove the allegations of the complaint, and
proof to the contrary admitted .... " "Where such a
change is ordered, the Court will not be establishing a
substantive right but only correcting or rectifying an
erroneous entry in the civil registry as authorized by law.
In short, Rule 108 of the Rules of Court provides only the
procedure or mechanism for the proper enforcement of
the substantive law embodied in Article 412 of the Civil
Code and so does not violate the
Constitution."68 (Emphasis in the original)
Following the procedure in Rule 103, Rule 108 also
requires a petition to be filed before the Regional Trial
Court. The trial court then sets a hearing and directs the
publication of its order in a newspaper of general
circulation in the province.69 After the hearing, the trial
court may grant or dismiss the petition and serve a copy
of its judgment to the Civil Registrar. 70
Mercadera clarified the applications of Article 376 and
Rule 103, and of Article 412 and Rule 108, thus:
The "change of name" contemplated under Article 376
and Rule 103 must not be confused with Article 412 and
Rule 108. A change of one's name under Rule 103 can be
granted, only on grounds provided by law. In order to
justify a request for change of name, there must be a
proper and compelling reason for the change and proof
that the person requesting will be prejudiced by the use
of his official name. To assess the sufficiency of the
grounds invoked therefor, there must be adversarial
proceedings.
In petitions for correction, only clerical, spelling,
typographical and other innocuous errors in the civil
registry may be raised. Considering that the enumeration
in Section 2, Rule 108 also includes "changes of name,"
the correction of a patently misspelled name is covered
by Rule 108. Suffice it to say, not all alterations allowed in
one's name are confined under Rule 103. Corrections for
clerical errors may be set right under Rule 108.
This rule in "names," however, does not operate to
entirely limit Rule 108 to the correction of clerical errors
in civil registry entries by way of a summary proceeding.
As explained above, Republic v. Valencia is the authority
for allowing substantial errors in other entries like
citizenship, civil status, and paternity, to be corrected
using Rule 108 provided there is an adversary
proceeding. "After all, the role of the Court under Rule
108 is to ascertain the truths about the facts recorded
therein."71 (Citations omitted)
However, Republic Act No. 904872 amended Articles 376
and 412 of the Civil Code, effectively removing clerical
errors and changes of the name outside the ambit of
Rule 108 and putting them under the jurisdiction of the
civil registrar. 73
In Silverio v. Republic:74
The State has an interest in the names borne by
individuals and entities for purposes of identification. A
change of name is a privilege, not a right. Petitions for
change of name are controlled by statutes. 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) . . .
....
253
RA 9048 now governs the change of first name. 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. It
likewise lays down the corresponding venue, form and
procedure. In sum, the remedy and the proceedings
regulating change of first name are primarily
administrative in nature, not judicial.75 (Citations omitted)
In Republic v. Cagandahan: 76
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 of the Civil Code, this provision
was amended by Republic Act No. 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, 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.77 (Emphasis in the original, citations
omitted)
In Republic v. Sali:78
The petition for change of first name may be allowed,
among other grounds, if the new first name has been
habitually and continuously used by the petitioner and
he or she has been publicly known by that first name in
the community. The local city or municipal civil registrar
or consul general has the primary jurisdiction to entertain
the petition. It is only when such petition is denied that a
petitioner may either appeal to the civil registrar general
or file the appropriate petition with the proper
court. 79 (Emphasis supplied, citations omitted)
Republic Act No. 9048 also dispensed with the need for
judicial proceedings in case of any clerical or
typographical mistakes in the civil register or changes in
first names or nicknames. 80
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.81
Thus, a person may now change his or her first name or
correct clerical errors in his or her name through
administrative proceedings. Rules 103 and 108 only apply
if the administrative petition has been filed and later
denied.
In 2012, Republic Act No. 9048 was amended by Republic
Act No. 10172.82
In addition to the change of the first name, the day and
month of birth, and the sex of a person may now be
changed without judicial proceedings. Republic Act No.
10172 clarifies that these changes may now be
administratively corrected where it is patently clear that
there is a clerical or typographical mistake in the entry. It
may be changed by filing a subscribed and sworn
affidavit with the local civil registry office of the city or
municipality where the record being sought to be
corrected or changed is kept.83
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, the day and
month in the date of birth or sex of a person where it is
patently clear that there was a clerical or typographical
error or mistake in the entry, 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. 84 (Emphasis supplied)
However, Republic Act No. 10172 does not apply in the
case at bar as it was only enacted on August 15, 2012-
more than two (2) years after Gallo filed her Petition for
Correction of Entry on May 13, 2010.85 Hence, Republic
Act No. 9048 governs.
II.B As to the issue of which between Rules 103 and 108
applies, it is necessary to determine the nature of the
correction sought by Gallo.
254
Petitioner maintains that Rule 103 applies as the changes
were substantive while respondent contends that it is
Rule 108 which governs as the changes pertain only to
corrections of clerical errors.
Upon scrutiny of the records in this case, this Court rules
that Gallo's
Petition involves a mere correction of clerical errors.
A clerical or typographical error pertains to a
[M]istake committed in the performance of clerical work
in writing, copying, transcribing or typing an entry in the
civil register that is harmless and innocuous ... 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[.] 86
However, corrections which involve a change in
nationality, age, or status are not considered clerical or
typographical. 87
Jurisprudence is replete with cases determining what
constitutes a clerical or typographical error in names with
the civil register.
In Republic v. Mercadera, Merlyn
88
Mercadera
(Mercadera) sought to correct her name from "Marilyn"
to "Merlyn." 89 She alleged that "she had been known as
MERLYN ever since" and she prayed that the trial court
correct her recorded given name "Marilyn" "to conform
to the one she grew up to."90 The Office of the Solicitor
General argued that this change was substantial which
must comply with the procedure under Rule 103 of the
Rules of Court.91 However, this Court ruled that Rule 103
did not apply because the petition merely sought to
correct a misspelled given name:
In this case, the use of the letter "a" for the letter "e," and
the deletion of the letter "i," so that what appears as
"Marilyn" would read as "Merlyn'' is patently a
rectification of a name that is clearly misspelled. The
similarity between "Marilyn" and "Merlyn" may well be
the object of a mix-up that blemished Mercadera's
Certificate of Live Birth until her adulthood, thus, her
interest to correct the same.
The [Court of Appeals] did not allow Mercadera the
change of her name. What it did allow was the correction
of her misspelled given name which she had been using
ever since she could remember. 92
Mercadera also cited similar cases in which this Court
determined what constitutes harmless errors that need
not go through the proceedings under Rule 103:
Indeed, there are decided cases involving mistakes similar
to Mercadera's case which recognize the same a harmless
error. In Yu v. Republic it was held that "to change 'Sincio'
to 'Sencio' which merely involves the substitution of the
first vowel 'i' in the first name into the vowel 'e' amounts
merely to the righting of a clerical error." In LabayoRowe
v. Republic, it was held that the change of petitioner's
name from "Beatriz Labayo/Beatriz Labayu" to
"Emperatriz Labayo" was a mere innocuous alteration
wherein a summary proceeding was appropriate.
In Republic v. Court of Appeals, Jaime B. Caranto and
Zenaida P. Caranto, the correction involved the
substitution of the letters "ch" for the letter "d," so that
what appears as "Midael" as given name would read
"Michael." In the latter case, this Court, with the
agreement of the Solicitor General, ruled that the error
was plainly clerical, such that, "changing the name of the
child from 'Midael C. Mazon' to 'Michael C. Mazon'
cannot possibly cause any confusion, because both
names can be read and pronounced with the same
rhyme (tugma) and tone (tono, tunog, himig).93 (Citations
omitted)
Likewise, in Republic v. Sali,94 Lorena Omapas Sali (Sali)
sought to correct her Certificate of Live Birth, alleging
that her first name was erroneously entered as "Dorothy"
instead of "Lorena," and her date of birth as "June 24,
1968" instead of "April 24, 1968." She alleged that she
had been using the name "Lorena" and the birth date
"April 24, 1968" ever since. She also averred that she had
always been known as "Lorena" in her community. She
claimed that the petition was just to correct the error and
not to evade any criminal or civil liability, or to affect any
succession of another person. 95
In response, the Office of the Solicitor General,
representing the Republic, argued against Sali's claim,
alleging that the petition was for a change of name
under Rule 103 and not for the correction of a simple
clerical error. It averred that there must be a valid ground
for the name change, and the applicant's names and
aliases must be stated in the title of the petition and the
order setting it for hearing. It also contended that
assuming Rule 108 was the proper remedy, Sali failed to
exhaust her remedies when she did not file an affidavit
under Republic Act No. 9048.96
In Sali, this Court held that Rule 103 did not apply
because the petition was not for a change of name, but a
petition for correction of errors in the recording of Sali's
name and birth date. Sali had been using the name
"Lorena" since birth, and she merely sought to have her
255
records conform to the name she had been using as her
true name. She had no intention of changing her name
altogether. Thus, her prayer for the correction of her
misspelled name is not contemplated by Rule 103.97
In the case at bar, petitioner, raising the same arguments
as that in Sali, claims that the change sought by Gallo is
substantial, covered by Rule 103 because the two (2)
names are allegedly entirely different from each other. It
argues that "Michael" could not have been the result of a
misspelling of "Michelle."98
On the other hand, Gallo argues that the corrections are
clerical which fall under Rule 108, with the requirements
of an adversarial proceeding properly complied. 99
Considering that Gallo had shown that the reason for her
petition was not to change the name by which she is
commonly known, this Court rules that her petition is not
covered by Rule 103. Gallo is not filing the petition to
change her current appellation. She is merely correcting
the misspelling of her name.
Correcting and changing have been differentiated, thus:
To correct simply means "to make or set aright; to
remove the faults or error from." To change means "to
replace something with something else of the same kind
or with something that serves as a substitute. 100
Gallo is not attempting to replace her current appellation.
She is merely correcting the misspelling of her given
name. "Michelle" could easily be misspelled as "Michael,"
especially since the first four (4) letters of these two (2)
names are exactly the same. The differences only pertain
to an additional letter "a" in "Michael," and "le" at the
end of "Michelle." "Michelle" and "Michael" may also be
vocalized similarly, considering the possibility of different
accents or intonations of different people. In any case,
Gallo does not seek to be known by a different
appellation. The lower courts have determined that she
has been known as "Michelle" all throughout her life. She
is merely seeking to correct her records to conform to
her true given name.
However, Rule 108 does not apply in this case either.
As stated, Gallo filed her Petition for Correction of Entry
on May 13, 2010. 101 The current law, Republic Act No.
10172, does not apply because it was enacted only on
August 19, 2012.102
The applicable law then for the correction of Gallo's
name is Republic Act No. 9048. 103
To reiterate, Republic Act No. 9048 was enacted on
March 22, 2001 and removed the correction of clerical or
typographical errors from the scope of Rule 108. It also
dispensed with the need for judicial proceedings in case
of any clerical or typographical mistakes in the civil
register, or changes of first name or nickname. Thus:
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. 104
Therefore, it is the civil registrar who has primary
jurisdiction over Gallo's petition, not the Regional Trial
Court. Only if her petition was denied by the local city or
municipal civil registrar can the Regional Trial Court take
cognizance of her case. In Republic v. Sali, 105
Sali's petition is not for a change of name as
contemplated under Rule 103 of the Rules but for
correction of entries under Rule 108. What she seeks is
the correction of clerical errors which were committed in
the recording of her name and birth date. This Court has
held that not all alterations allowed in one's name are
confined under Rule 103 and that corrections for clerical
errors may be set right under Rule 108. The evidence
presented by Sali show that, since birth, she has been
using the name "Lorena." Thus, it is apparent that she
never had any intention to change her name. What she
seeks is simply the removal of the clerical fault or error in
her first name, and to set aright the same to conform to
the name she grew up with.
Nevertheless, at the time Sali's petition was filed, R.A. No.
9048 was already in effect . . .
....
The petition for change of first name may be allowed,
among other grounds, if the new first name has been
habitually and continuously used by the petitioner and
he or she has been publicly known by that first name in
the community. The local city or municipal civil registrar
or consul general has the primary jurisdiction to entertain
the petition. It is only when such petition is denied that a
petitioner may either appeal to the civil registrar general
or file the appropriate petition with the proper court . . .
....
256
In this case, the petition, insofar as it prayed for the
change of Sali's first name, was not within the RTC's
primary jurisdiction. It was improper because the remedy
should have been administrative, i.e., filing of the petition
with the local civil registrar concerned. For failure to
exhaust administrative remedies, the RTC should have
dismissed the petition to correct Sali's first name. 106
Likewise, the prayers to enter Gallo's middle name as
Soriano, the middle names of her parents as Angangan
for her mother and Balingao for her father, and the date
of her parents' marriage as May 23, 1981 fall under
clerical or typographical errors as mentioned in Republic
Act No. 9048.
Under Section 2(3) of Republic Act No. 9048:
(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. 107
These corrections may be done by referring to existing
records in the civil register. None of it involves any
change in Gallo's nationality, age, status, or sex.
Moreover, errors "visible to the eyes or obvious to the
understanding" 108 fall within the coverage of clerical
mistakes not deemed substantial. If it is "obvious to the
understanding," even if there is no proof that the name
or circumstance in the birth certificate was ever used, the
correction may be made.
Thus, as to these corrections, Gallo should have sought to
correct them administratively before filing a petition
under Rule 108.
However, the petition to correct Gallo's biological sex
was rightfully filed under Rule 108 as this was a
substantial change excluded in the definition of clerical
or typographical errors in Republic Act No. 9048. 109
This was affirmed in Republic v. Cagandahan: 110
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. 111 (Citation
omitted)
It was only when Republic Act No. 10172 was enacted on
August 15, 2012 that errors in entries as to biological sex
may be administratively corrected, provided that they
involve a typographical or clerical error. 112
However, this is not true for all cases as corrections in
entries of biological sex may still be considered a
substantive matter.
In Cagandahan, 113 this Court ruled that a party who
seeks a change of name and biological sex in his or her
Certificate of Live Birth after a gender reassignment
surgery has to file a petition under Rule 108.114 In that
case, it was held that the change did not involve a mere
correction of an error in recording but a petition for a
change of records because the sex change was initiated
by the petitioner. 115
IV
Considering that Gallo did not first file an administrative
case in the civil register before proceeding to the courts,
petitioner contends that respondent failed to exhaust
administrative remedies and observe the doctrine of
primary jurisdiction under Republic Act No. 9048.116
On the other hand, respondent argues that petitioner has
waived its right to invoke these doctrines because it
failed to file a motion to dismiss before the Regional Trial
Court and only raised these issues before this Court. 117
This Court rules in favor of Gallo.
Under the doctrine of exhaustion of administrative
remedies, a party must first avail of all administrative
processes available before seeking the courts'
intervention. The administrative officer concerned must
be given every opportunity to decide on the matter
within his or her jurisdiction. Failing to exhaust
administrative remedies affects the party's cause of
action as these remedies refer to a precedent condition
which must be complied with prior to filing a case in
court. 118
However, failure to observe the doctrine of exhaustion of
administrative remedies does not affect the court's
jurisdiction.119 Thus, the doctrine may be waived as
in Soto v. Jareno: 120
257
Failure to observe the doctrine of exhaustion of
administrative remedies does not affect the jurisdiction of
the court. We have repeatedly stressed this in a long line
of decisions. The only effect of noncompliance with this
rule is that it will deprive the complainant of a cause of
action, which is a ground for a motion to dismiss. If not
invoked at the proper time, this ground is deemed
waived and the court can then take cognizance of the
case and try it. 121 (Citation omitted)
Meanwhile, under the doctrine of primary administrative
jurisdiction, if an administrative tribunal has jurisdiction
over a controversy, courts should not resolve the issue
even if it may be within its proper jurisdiction. This is
especially true when the question involves its sound
discretion requiring special knowledge, experience, and
services to determine technical and intricate matters of
fact.122
In Republic v. Lacap: 123
Corollary to the doctrine of exhaustion of administrative
remedies is the doctrine of primary jurisdiction; that is,
courts cannot or will not determine a controversy
involving a question which is within the jurisdiction of the
administrative tribunal prior to the resolution of that
question by the administrative tribunal, where the
question demands the exercise of sound administrative
discretion requiring the special knowledge, experience
and services of the administrative tribunal to determine
technical and intricate matters of fact. 124 (Citation
omitted)
Thus, the doctrine of primary administrative jurisdiction
refers to the competence of a court to take cognizance of
a case at first instance. Unlike the doctrine of exhaustion
of administrative remedies, it cannot be waived.
However, for reasons of equity, in cases where
jurisdiction is lacking, this Court has ruled that failure to
raise the issue of non-compliance with the doctrine of
primary administrative jurisdiction at an opportune time
may bar a subsequent filing of a motion to dismiss based
on that ground by way of laches.125
In Tijam v. Sibonghanoy:126
True also is the rule that jurisdiction over the subject-
matter is conferred upon the courts exclusively by law,
and as the lack of it affects the very authority of the court
to take cognizance of the case, the objection may be
raised at any stage of the proceedings. However,
considering the facts and circumstances of the present
case - which shall forthwith be set forth - We are of the
opinion that the Surety is now barred by laches from
invoking this plea at this late hour for the purpose of
annulling everything done heretofore in the case with its
active participation . . .
....
A party may be estopped or barred from raising a
question in different ways and for different reasons. Thus
we speak of estoppels in pais, of estoppel by deed or by
record, and of estoppel by laches.
Laches, in a general sense, is failure or neglect, for an
unreasonable and unexplained length of time, to do that
which, by exercising due diligence, could or should have
been done earlier; it is negligence or omission to assert a
right within a reasonable time, warranting a presumption
that the party entitled to assert it either has abandoned it
or declined to assert it.
The doctrine of laches or of "stale demands" is based
upon grounds of public policy which requires, for the
peace of society, the discouragement of stale claims and,
unlike the statute of limitations, is not a mere question of
time but is principally a question of the inequity or
unfairness of permitting a right or claim to be enforced
or asserted.
It has been held that a party cannot invoke the
jurisdiction of a court to secure affirmative relief against
his opponent and, after obtaining or failing to obtain
such relief, repudiate or question that same jurisdiction ...
In the case just cited, by way of explaining the rule, it was
further said that the question whether the court had
jurisdiction either of the subject-matter of the action or
of the parties was not important in such cases because
the party is barred from such conduct not because the
judgment or order of the court is valid and conclusive as
an adjudication, but for the reason that such a practice
cannot be tolerated- obviously for reasons of public
policy.
Furthermore, it has also been held that after voluntarily
submitting a cause and encountering an adverse decision
on the merits, it is too late for the loser to question the
jurisdiction or power of the court ... And in
Littleton vs. Burgess, ... the Court said that it is not right
for a party who has affirmed and invoked the jurisdiction
of a court in a particular matter to secure an affirmative
relief, to afterwards deny that same jurisdiction to escape
a penalty. 127 (Emphasis supplied, citations omitted)
Thus, where a party participated in the proceedings and
the issue of non-compliance was raised only as an
afterthought at the final stage of appeal, the party
invoking it may be estopped from doing so.
258
Nonetheless, the doctrine of exhaustion of administrative
remedies and the corollary doctrine of primary
jurisdiction, which are based on sound public policy and
practical considerations, are not inflexible rules. There are
many accepted exceptions, such as: (a) where there is
estoppel on the part of the party invoking the
doctrine; (b) where the challenged administrative act is
patently illegal, amounting to lack of jurisdiction;
(c) where there is unreasonable delay or official inaction
that will irretrievably prejudice the complainant; ( d)
where the amount involved is relatively small so as to
make the rule impractical and oppressive; ( e) where the
question involved is purely legal and will ultimately have
to be decided by the courts of justice; (f) where judicial
intervention is urgent; (g) when its application may cause
great and irreparable damage; (h) where the
controverted acts violate due process; (i) when the issue
of non-exhaustion of administrative remedies has been
rendered moot; G) when there is no other plain, speedy
and adequate remedy; (k) when strong public interest is
involved; and, (1) in quo warranto proceedings .
. 128 (Emphasis supplied, citations omitted)
Petitioner does not deny that the issue of non-
compliance with these two (2) doctrines was only raised
in this Court. Thus, in failing to invoke these contentions
before the Regional Trial Court, it is estopped from
invoking these doctrines as grounds for dismissal.
WHEREFORE, premises considered, the petition
is DENIED. The April 29, 2013 Decision of the Court of
Appeals in CA-G.R. CV No. 96358 is AFFIRMED. The
Petition for Correction of Entry in the Certificate of Live
Birth of Michelle Soriano Gallo is GRANTED. This Court
directs that the Certificate of Live Birth of Michelle
Soriano Gallo be corrected as follows:
1) Correct her first name from
"Michael" to "Michelle";
2) Correct her biological sex from
"Male" to "Female";
3) Enter her middle name as
"Soriano";
4) Enter the middle name of her
mother as "Angangan";
5) Enter the middle name of her father
as "Balingao"; and
6) Enter the date of her parents'
marriage as "May 23, 1981."
REPUBLIC ACT NO. 9048 March 22, 2001
AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL
REGISTRAR OR THE CONSUL GENERAL TO CORRECT A
CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY
AND/OR CHANGE OF FIRST NAME OR NICKNAME IN THE
CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER,
AMENDING FOR THIS PURPOSE ARTICLES 376 AND 412
OF THE CIVIL CODE OF THE PHILIPPINES
Be it enacted by the Senate and the House of
Representatives of the Philippines in Congress
assembled:
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.
Section 2. Definition of Terms – As used in this Act, the
following terms shall mean:
(1) "City or Municipal civil registrar" refers to
the head of the local civil registry office of the
city or municipality, as the case may be, who is
appointed as such by the city or municipal
mayor in accordance with the provisions of
existing laws.
(2) "Petitioner" refers to a natural person filing
the petition and who has direct and personal
interest in the correction of a clerical or
typographical error in an entry or change of
first name or nickname in the civil register.
(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.
(4) "Civil Register" refers to the various registry
books and related certificates and documents
259
 kept in the archives of the local civil registry
offices, Philippine Consulates and of the Office
of the Civil Registrar General.
(5) "Civil registrar general" refers to the
Administrator of the National Statistics Office
which is the agency mandated to carry out and
administer the provision of laws on civil
registration.
(6) "First name" refers to a name or nickname
given to a person which may consist of one or
more names in addition to the middle and last
names.
Section 3. Who May File the Petition and Where. – Any
person having direct and personal interest in the
correction of a clerical or typographical error in an entry
and/or change of first name or nickname in the civil
register may file, in person, a verified petition with the
local civil registry office of the city or municipality where
the record being sought to be corrected or changed is
kept.
In case the petitioner has already migrated to another
place in the country and it would not be practical for
such party, in terms of transportation expenses, time and
effort to appear in person before the local civil registrar
keeping the documents to be corrected or changed, the
petition may be filed, in person, with the local civil
registrar of the place where the interested party is
presently residing or domiciled. The two (2) local civil
registrars concerned will then communicate to facilitate
the processing of the petition.
Citizens of the Philippines who are presently residing or
domiciled in foreign countries may file their petition, in
person, with the nearest Philippine Consulates.
The petitions filed with the city or municipal civil registrar
or the consul general shall be processed in accordance
with this Act and its implementing rules and regulations.
All petitions for the clerical or typographical errors
and/or change of first names or nicknames may be
availed of only once.
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 by that first name or nickname in the
community: or
(3) The change will avoid confusion.
Section 5. Form and Contents of the Petition. – The
petition shall be in the form of an affidavit, subscribed
and sworn to before any person authorized by the law to
administer oaths. The affidavit shall set forth facts
necessary to establish the merits of the petition and shall
show affirmatively that the petitioner is competent to
testify to the matters stated. The petitioner shall state the
particular erroneous entry or entries, which are sought to
be corrected and/or the change sought to be made.
The petition shall be supported with the following
documents:
(1) A certified true machine copy of the
certificate or of the page of the registry book
containing the entry or entries sought to be
corrected or changed.
(2) At least two (2) public or private documents
showing the correct entry or entries upon which
the correction or change shall be based; and
(3) Other documents which the petitioner or the
city or municipal civil registrar or the consul
general may consider relevant and necessary
for the approval of the petition.
In case of change of first name or nickname, the petition
shall likewise be supported with the documents
mentioned in the immediately preceding paragraph. In
addition, the petition shall be published at least once a
week for two (2) consecutive weeks in a newspaper of
general circulation. Furthermore, the petitioner shall
submit a certification from the appropriate law
enforcement agencies that he has no pending case or no
criminal record.
The petition and its supporting papers shall be filed in
three (3) copies to be distributed as follows: first copy to
the concerned city or municipal civil registrar, or the
consul general; second copy to the Office of the Civil
Registrar General; and third copy to the petitioner.
Section 6. Duties of the City or Municipal Civil Registrar or
the Consul General. – The city or municipal civil registrar
or the consul general to whom the petition is presented
shall examine the petition and its supporting documents.
260
He shall post the petition in a conspicuous place
provided for that purpose for ten (10) consecutive days
after he finds the petition and its supporting documents
sufficient in form and substance.
The city or municipal civil registrar or the consul general
shall act on the petition and shall render a decision not
later than five (5) working days after the completion of
the posting and/or publication requirement. He shall
transmit a copy of his decision together with the records
of the proceedings to the Office of the Civil Registrar
General within five (5) working days from the date of the
decision.
Section 7. Duties and Powers of the Civil Registrar
General. – The civil registrar general shall, within ten (10)
working days from receipt of the decision granting a
petition, exercise the power to impugn such decision by
way of an objection based on the following grounds:
(1) The error is not clerical or typographical;
(2) The correction of an entry or entries in the
civil register is substantial or controversial as it
affects the civil status of a person; or
(3) The basis used in changing the first name or
nickname of a person does not fall under
Section 4.
The civil registrar general shall immediately notify the city
or municipal civil registrar or the consul general of the
action taken on the decision. Upon receipt of the notice
thereof, the city or municipal civil registrar or the consul
general shall notify the petitioner of such action.
The petitioner may seek reconsideration with the civil
registrar general or file the appropriate petition with the
proper court.
If the civil registrar general fails to exercise his power to
impugn the decision of the city or municipal civil registrar
or of the consul general within the period prescribed
herein, such decision shall become final and executory.
Where the petition is denied by the city or municipal civil
registrar or the consul general, the petitioner may either
appeal the decision to the civil registrar general or file
the appropriate petition with the proper court.
Section 8. Payment of Fees. – The city or municipal civil
registrar or the consul general shall be authorized to
collect reasonable fees as a condition for accepting the
petition. An indigent petitioner shall be exempt from the
payment of the said fee.
Section 9. Penalty Clause. - A person who violates any of
the provisions of this Act shall, upon conviction, be
penalized by imprisonment of not less than six (6) years
but not more than twelve (12) years, or a fine of not less
than Ten thousand pesos (P10,000.00) but not more than
One Hundred Thousand pesos (P100,000.00), or both, at
the discretion of the court.
In addition, if the offender is a government official or
employee he shall suffer the penalties provided under
civil service laws, rules and regulations.
Section 10. Implementing Rules and Regulations. - The
civil registrar general shall, in consultation with the
Department of Justice, the Department of Foreign Affairs,
the Office of the Supreme Court Administrator, the
University of the Philippines Law Center and the
Philippine Association of Civil Registrars, issue the
necessary rules and regulations for the effective
implementation of this Act not later than three (3)
months from the effectivity of this law.
Section 11. Retroactivity Clause. - This Act shall have
retroactive effect insofar as it does not prejudice or
impair vested or acquired rights in accordance with the
Civil Code and other laws.
Section 12. Separability Clause. - If any portion or
provision of this Act is declared void or unconstitutional,
the remaining portions or provisions thereof shall not be
affected by such declaration.
Section 13. Repealing Clause - All laws, decrees, orders,
rules and regulations, other issuances, or parts thereof
inconsistent with the provisions of this Act are hereby
repealed or modified accordingly.
Section 14. Effectivity Clause. - This Act shall take effect
fifteen (15) days after its complete publication in at least
two (2) national newspapers of general circulation.
Approved: March 22, 2001
REPUBLIC ACT NO. 10172
AN ACT FURTHER AUTHORIZING THE CITY OR MUNICIPAL
CIVIL REGISTRAR OR THE CONSUL GENERAL TO CORRECT
CLERICAL OR TYPOGRAPHICAL ERRORS IN THE DAY AND
MONTH IN THE DATE OF BIRTH OR SEX OF A PERSON
APPEARING IN THE CIVIL REGISTER WITHOUT NEED OF A
261
 JUDICIAL ORDER, AMENDING FOR THIS PURPOSE
REPUBLIC ACT NUMBERED NINETY FORTY-EIGHT
Be it enacted by the Senate and House of
Representatives of the Philippines in Congress
assembled:
Section 1. Section 1 of Republic Act No. 9048, hereinafter
referred to as the Act, is hereby amended to read as
follows:
"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, the day
and month in the date of birth or sex of a
person where it is patently clear that there was
a clerical or typographical error or mistake in
the entry, 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."
Section 2. Section 2, paragraph (3) of the Act is likewise
amended to read as follows:
"SEC. 2. Definition of Terms. – As used in this
Act, the following terms shall mean:
(1) xxx xxx
(2) 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, mistake in the entry of
day and month in the date of birth or
the sex of the person 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, or status of the
petitioner."
Section 3. Section 5 of the Act is hereby amended to read
as follows:
"SEC. 5. Form and Contents of the Petition. –
The petition for correction of a clerical or
typographical error, or for change of first name
or nickname, as the case may be, shall be in the
form of an affidavit, subscribed and sworn to
before any person authorized by law to
administer oaths. The affidavit shall set forth
facts necessary to establish the merits of the
petition and shall show affirmatively that the
petitioner is competent to testify to the matters
stated. The petitioner shall state the particular
erroneous entry or entries, which are sought to
be corrected and/or the change sought to be
made.
The petition shall be supported with the
following documents:
(1) A certified true machine copy of
the certificate or of the page of the
registry book containing the entry or
entries sought to be corrected or
changed;
(2) At least two (2) public or private
documents showing the correct entry
or entries upon which the correction
or change shall be based; and
(3) Other documents which the
petitioner or the city or municipal civil
registrar or the consul general may
consider relevant and necessary for
the approval of the petition.
No petition for correction of erroneous entry
concerning the date of birth or the sex of a
person shall be entertained except if the
petition is accompanied by earliest school
record or earliest school documents such as,
but not limited to, medical records, baptismal
certificate and other documents issued by
religious authorities; nor shall any entry
involving change of gender corrected except if
the petition is accompanied by a certification
issued by an accredited government physician
attesting to the fact that the petitioner has not
undergone sex change or sex transplant. The
petition for change of first name or nickname,
or for correction of erroneous entry concerning
the day and month in the date of birth or the
sex of a person, as the case may be, shall be
262
 published at least once a week for two (2)
consecutive weeks in a newspaper of general
circulation.
Furthermore, the petitioner shall submit a
certification from the appropriate law
enforcements, agencies that he has no pending
case or no criminal record.
The petition and its supporting papers shall be
filed in three (3) copies to be distributed as
follows: first copy to the concerned city or
municipal civil registrar, or the consul general;
second copy to the Office of the Civil Registrar
General; and third copy to the petitioner."
Section 4. Section 8 of the Act is hereby amended to read
as follows:
"SEC. 8. Payment of Fees. – The city or
municipal civil registrar or the consul general
shall be authorized to collect reasonable fees as
a condition for accepting the petition. An
indigent petitioner shall be exempt from the
payment of the said fee.
The fees collected by the city or municipal civil
registrar or the consul general pursuant to this
Act shall accrue to the funds of the Local Civil
Registry Office concerned or the Office of the
Consul General for modernization of the office
and hiring of new personnel and procurement
of supplies, subject to government accounting
and auditing rules."
Section 5. Separability Clause. – If any provision of this
Act shall at any time be found to be unconstitutional or
invalid, the remainder thereof not affected by such
declaration shall remain in full force and effect.
Section 6. Repealing Clause. – Any laws, decrees, rules or
regulations inconsistent with the provisions of this Act
are hereby repealed or modified accordingly.
Section 7. Effectivity Clause. – This Act shall take effect
fifteen (15) days after its publication in the Official
Gazette or in at least two (2) newspapers of general
circulation.
Approved: August 15, 2012
Republic Act No. 9255 February 24 2004
AN ACT ALLOWING ILLEGITIMATE CHILDREN TO USE THE
SURNAME OF THEIR FATHER, AMENDING FOR THE
PURPOSE ARTICLE 176 OF EXECUTIVE ORDER NO. 209,
OTHERWISE KNOWN AS THE "FAMILY CODE OF THE
PHILIPPINES"
Be it enacted by the Senate and House of
Representatives of the Philippine Congress Assembled:
SECTION 1. Article 176 of Executive Order No. 209,
otherwise known as the Family Code of the Philippines, is
hereby amended to read as follows:
"Article 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 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. 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."
SECTION 2. Repealing Clause. – All laws, presidential
decrees, executive orders, proclamations, rules and
regulations, which are inconsistent with the provisions of
this Act are hereby repealed or modified accordingly.
SECTION 3. Effectivity Clause. – This Act shall take effect
fifteen (15) days from its publication in the Official
Gazette or in two (2) newspapers of general circulation.
Approved: February 24, 2004
G.R. No. 230751
ESTRELLITA TADEO-MATIAS, Petitioner
vs
REPUBLIC OF THE PHILIPPINES, Respondent
This is an appeal1 assailing the Decision2 dated
November 28, 2016 and Resolution3 dated March 20,
2017 of the Court of Appeals (CA) in CA-G.R. SP No.
129467.
263
The facts are as follows:
On April 10, 2012, petitioner Estrellita Tadco-Matias filed
before the Regional Trail Court (RTC) of Tarlac City a
petition for the declaration of presumptive death of her
husband, Wifredo N. Matias (Wilfredo).4 The allegations
of the petition read:
1. [Petitioner] is of legal age, married to [Wilfredo],
Filipino and curr[e]ntly a residnet of 106 Molave street,
Zone B. San Miguel Tarlac City;
2. [Wifredo] is of legal age, a member of the Philippine
Constabulary and was assigned in Araya, Pampanga since
August 24, 1967[;]
3. The[p]etitioner and [Wilfredo] entered into a lawful
marriage on January 7, 1968 in Imbo, Anda, Pangasinan x
x x;
4. After the solemnization of their marriage vows, the
couple put up their conjugal home at 106 Molave street,
Zone B. San Miguel, Tarlac City;
5. [Wilfredo] continued to serve the Philippines and on
September 15, 1979, he set out from their conjugal home
to again serve as a member of the Philippine
Constabulary;
6. [Wilfredo] never came back from his tour of duty in
Arayat, Pampanga since 1979 and he never made contact
or communicated with the [p]etitioner nor to his relatives;
7. That according to the service record of [Wilfredo]
issued by the National Police Commission, [Wilfredo] was
already declared missing since 1979 x x x;
8. Petitioner constantly pestered the then Philippine
Constabulary for any news regarding [her] beloved
husband [Wilfredo], but the Philippine Constabulary had
no answer to his whereabouts, [neither] did they have
any news of him going AWOL, all they know was he was
assigned to a place frequented by the New People's
Army;
9. [W]eeks became years and years became decades, but
the [p]etitioner never gave up hope, and after more than
three (3) decades of awaiting, the [p]etitioner is still
hopeful, but the times had been tough on her, specially
with a meager source of income coupled with her age, it
is now necessary for her to request for the benefits that
rightfully belong to her in order to survive;
10. [T]hat one of the requirements to attain the claim of
benefits is for a proof of death or at least declaration of
presumptive death by the Honorable Court;
11. That this petition is being filed not for any other
purpose but solely to claim for the benefit under P.D. No.
1638 as amended.
The petition was docketed as Spec. Proc. No. 4850 and
was raffled to Branch 65 of the Tarlac City RTC. A copy of
the petition was then furnished to the Office of the
Solicitor General (OSG)_.
Subsequently, the OSG filed its notice of appearance on
behalf of herein respondent Republic of the Philippines
(Republic).5
On January 15, 2012, the RTC issued a Decision6 in Spec.
Proc. No. 4850 granting the petition. The dispositive
portion of the Decision reads:7
WHEREFORE in view of the foregoing the Court hereby
declared (sic) WILFREDO N. MATIAS absent or
presumptively dead under Article 41 of the Family Code of
the Philippines for purpose of claiming financial benefits
due to him as former military officer.
xxxx
SO ORDERED. (Emphasis supplied)
The Republic questioned the decision of the RTC via a
petition for certiotrari.8
On November 28, 2012, the CA rendered a decision
granting the certiorari petition of the Republic and
setting aside the decision of the RTC. It accordingly
disposed:
WHEREFORE, premises considered, the petition
for certiorari is GRANTED. The Decision dated January 15,
2012 of the Regional Trial Court, branch 65, Tarlac City, in
Special Proceeding no. 4850 is ANNULED and SET ASIDE,
and the petition is DISMISSED.
The CA premised its decision on the following
ratiocinations:
1. The RTC erred when it declared Wilfredo presumptively
dead on the basis of Article 41 of the Family Code (FC).
Article 41 of the FC does not seek to remarry. If anything,
the petition was invoking the presumption of death
established under Articles 390 and 391 of the Civil Code,
and not that provided for under Article 41 of the FC.
264
2. Be that it may, the petition to declare Wilfredo
presumptively dead should have been dismissed by the
RTC. The RTC is without authority to take cognizance of a
petition whose sole purpose is to have a person declared
presumptively dead under either Article 390 or Article
391 of the Civil Code. As been held by jurisprudence,
Articles 390 and 391 of the Civil Code merely express
rules of evidence that allow a court or a tribunal to
presume that a person is dead-which presumption may
be invoked in any action or proceeding, but itself cannot
be the subject of an independent action or proceeding.
Petitioner moved for reconsideration, but the CA
remained steadfast. Hence,this appeal.
Our Ruling
We deny the appeal
I
The CA was correct. The petition for the declaration of
presumptive death filed by the petitioner is not an
authorized suit and should have been dismissed by the
RTC. The RTC's decision must, therefore, be set aside.
RTC Erred I Declaring the
Presumptive Death of Wilfredo under
Article 41 of the FC; Petitioner's
Petition for the Declaration of
Presumptive Death is Not Based on
Article 41 of the FC, but on the Civil
Code
A conspicuous error in the decision of the RTC must first
be addressed.
It can be recalled that the RTC, in fallo of its January 15,
2012 Decision, granted the petitioner's petition by
declaring Wilfredo presumptively dead "under Article 41
of the FC." By doing so, RTC gave the impression that the
petition for the declaration of presumptive death filed by
petitioner was likewise filed pursuant to Article 41 of the
FC.9 This is wrong.
The petition for the declaration of presumptive death
filed by petitioner is not an action that would have
warranted the application of Article 41 of the FC shows
that the presumption of death established therein is only
applicable for the purpose of contracting a valid
subsequent marriage under the said law. Thus:
Art. 41. A marriage contracted by any person during
subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four
consecutive years and the spouse present has a well-
founded belief that the absent spouse was already dead.
In case of disappearance where there is danger of death
under the circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of only two
years shall be sufficient.
For the purpose of contracting the subsequent marriage
under the preceding paragraph the spouse present must
institute a summary proceeding as provided in this Code
for the declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the
absent spouse.
Here, petitioner was forthright that she was not seeking
the declaration of the presumptive death Wilfredo as a
prerequisite for remarriage. In her petition for the
declaration of presumptive death, petitioner categorically
stated that the same was filed "not for any other purpose
but solely to claim for the benefit under P.D. No. 1638 a
amended.10
Given that her petition for the declaration of presumptive
death was not filed for the purpose of
remarriage, petitioner was clearly relying on the
presumption of death under either Article 390 or Article
391 of the Civil Code11 as the basis of her petition. Articles
390 and 391 of the Civil Code express the general rule
regarding presumption s of death for any civil purpose,
to wit:
Art. 390. After an absence of seven years, it being
unknown whether or not the absence still lives, he shall
be presumed dead for all purposes except for those of
succession.
The absentee shall not be presumed dead for the
purpose of opening his succession till after an absence of
five years shall be sufficient in order that his succession
may be opened.
Art. 391. The following shall be presumed dead for all
purposes, including the division of the estate among the
heirs:
(1) A person on board a vessel lost during a sea voyage,
or an aeroplane which is missing, who has not been
heard of for four years since the loss of the vessel or
aeroplane;
(2) A person in the armed forces who has taken part in
war, and has been missing for four years;
265
(3) a person who has been in danger of death under
other circumstances and his existence has not been
known for four years.
Verily, the RTC's use of Article 41 of the FC as its basis in
declaring the presumptive death of Wilfredo was
misleading and grossly improper.The petition for the
declaration of presumptive death filed by the petitioner
was based on the Civil Code, and not on Article 41 of the
FC.
Petitioner's Petition for Declaration of
Presumptive Death Ought to Have Been
Dismissed; A Petition Whose Sole Objective is
To Declare a Person Presumptively Dead Under
the CivilCode, Like that Filed by the Petitioner
Before the RTC, Is Not a Viable Suit in Our
Jurisdiction
The true fault in the RTC's decision, however, goes
beyond its misleading fallo. The decision itself is
objectionable.
Since the petition filed by the petitioner merely seeks the
declaration of presumptive death of Wilfredo under the
Civil Code, the RTC should have dismissed such petition
outright. This is because, in our jurisdiction, a petition
whose sole objective is to have a person declared
presumptively dead under the Civil Code is not regarded
as a valid suit and no court has any authority to take
cognizance of the same.
The above norm had its conceptual roots in the 1948
case of In re: Petition for the Presumption of Death of
Nicolai Szatraw.12 In the said case, we held that a rule
creating a presumption of death13 is merely one of the
evidence that-while may be invoked in any action or
proceeding-cannot be the lone subject of an
independent action or proceeding. Szatraw explained:
The rule invoked by the latter is merely one of the
evidence which permits the court to presume that a
person had been unheard from in seven years had been
established. This presumption may arise and be invoked
and made in a case, either in an action or in a special
proceeding, which is tried or heard by, and submitted for
decision to, a competent court. Independently of such an
action or special proceeding, the presumption of death
cannot be invoked, nor can it be made the subject of an
action or special proceeding. In this case, there is no right
ti be enforced nor is there a remedy prayed for by the
petitioner against her absent husband. Neither is there a
prayer for the final determination of his right or status or
for the ascertainment of particular fact, for the petition
does not pray for the declaration that the petitioner 's
husband us dead, but merely asks for a declaration that
he be presumed dead because he had been unheard
from in seven years. If there is any pretense at securing a
declaration that the petitioner's husband os dead, such a
pretension cannot be granted because it is
unauthorized. The petition is for a declaration, even if
judicially made, would not improve the petitioner's
situation, because such a presumption is already
established by law. A judicial pronouncement to that
effect, even if final and executory, would be a prima
facie presumption only. It is still disputable. It is for that
reason that it cannot be the subject of judicial
pronouncement or declaration, if it is tha only question or
matter involved in a case, or upon which a competent
court has to pass. The latter must decide finally the
controversy between the parties, or determine finally the
right or status of a party or establish finally a particular
fact, out of which certain rights and obligations arise or
may arise; and once such controversy is decided by a
final decree, then the judgement on the subject of the
controversy, or the decree upon the right or status of a
party or upon the existence of a particular fact,
becomes res judicata, subject to no collateral attack,
except in a few rare instances especially provided by law.
It is, therefore, clear that judicial declaration that a person
is presumptively dead, because he had been unheard
from in seven years, being a presumption juris
tantum only, subject to contrary proof, cannot reach the
stage of finality or become final. (Citations omitted and
emphasis supplied)
The above ruling in Szatraw has since been ussed by the
subsequent cases of Lukban v. Republic14 and Gue v.
Republic15 in disallowing petitions for declaration of
presumptive death based on Article 390 of the Civil Code
(and, implicity, also those based on the Civil based on
Article 391 of the Civil Code).
Dissecting the rulings of Szatraw,
Gue and Lukban collectively, we are able to ascertain the
considerations why a petition for declaration of
presumptive death based on the Civil Code was
disallowed in our jurisdiction, viz:16
1. Articles 390 and 391 of the Civil Code merely express
rules of evidence that only allow a court or a tribunal
to presume that a person is dead upon the establishment
of certain facts.
2. Since Articles 390 an d 391 of the Civil Code merely
express rules of evidence, an action brought exclusively to
declare a person presumptively dead under either of the
said articles actually presents
266
no actual controversy that a court could decide. In such
action, there would be no actual rights to be enforces, no
wrong to be remedied nor any status to be established.
3. A judicial pronouncement declaring a person
presumptively dead under Article 390 or Article 391 of
the Civil Code, in an action exclusively based thereon,
would never really become "final" as the same only
confirms tha existence of a prima facie or disputable
presumption. The function of a court to render decisions
that is supposed to be final and binding between litigants
is thereby compromised.
4. Moreove, a court action to declare a person
presumptively dead under Articles 390 and 391 of the
Civil Code would be unnecessary. The presumption in the
said articles is already established by law.
Verily, under prevailing case law, courts are without any
authority to take cognizance of a petition that-like the
one filed by the petitioner in the case at bench-only
seeks to have a person declared presumptively dead
under the Civil Code. Such a petition is not authorized by
law.17 Hence, by acting upon and eventually granting the
petitioner's petition for the declaration of presumptive
death, the RTC violated prevailing jurisprudence and
thereby committed grave abuse of discretion. The CA,
therefore, was only correct in setting aside the RTC's
decision.
II
Before bringing this case to its logical conclusion,
however, there are a few points the Court is minded to
make.
It is not lost on this Court that much of the present
controversy stemmed from the misconception that a
court declaration is required in order to establish a
person is presumptively dead for purposes of claiming
his death benefits as a military serviceman under
pertinent laws.18 This misconception is what moved
petitioner to file her misguided petition for the
declaration of presumptive death of Wilfredo and what
ultimately exposed her to unnecessary difficulties in
prosecuting an otherwise simple claim for death benefits
either before the Philippine Veterans' Affair Office (PVAO)
of the Armed Forces of the Philippines (AFP).
What the Court finds deeply disconnecting, however, is
the possibility that such misconception may have been
peddles by no less than the PVAO and the AFP
themselves; that such agencies, as a matter of practice,
had been requiring claimants, such as the petitioner, to
first secure a court declaration of presumptive death
before processing the death before processing the death
benefits of missing serviceman.
In view of the foregoing circumstances, the Court deems
it necessary to issue the following guidelines-culled from
relevant law and jurisprudential pronouncements-to aid
the public, PVAO and the AFP in making or dealing with
claims of death benefits which are similar to that of the
petitioner:
1. The PVAO and the AFP can decide claims of death
benefits of a missing soldier without requiring the
claimant to first produce a court declaration of the
presumptive death of such soldier. In such claims, the
PVAO and the AFP can make their own determination, on
the basis of the evidence presented by the claimant,
whether the presumption of death under Articles 390 and
391 of the Civil Code may be applied or not.
It must be stressed that the presumption of death under
Articles 390 and 391 of the Civil Code arises by operation
of law, without need of a court declaration, once the
factual conditions mentioned in the said articles are
established.19 Hence, requiring the claimant to further
secure a court declaration in order to establish the
presumptive death of a missing soldier is not proper and
contravenes established jurisprudence on the matter.20
2. In order to avail of the presumption, therefore, the
claimant need only present before the PVAO or the
appropriate office of the AFP, as the case may be,
any "evidence"21 which shows that the concerned soldier
had been missing for such number of years and or under
the circumstances prescribed under Articles 390 and 391
of the Civil Code. Obviously, the "evidence" referred to
here excludes a court declaration of presumptive death.
3. The PVAO or the AFP, as the case may be, may then
weigh the evidence submitted by the claimant and
determine their sufficiency to establish the requisite
factual conditions specified under Article 390 or 391 of
the Civil Code in order for the presumption of death to
arise. If the PVAO or the AFP determines that the evidence
submitted by the claimant is sufficient, they should not
hesitate to apply the presumption of death and pay the
latter's claim.
4. If the PVAO or the AFP determines that the evidence
submitted by the claimant is not sufficient to invoke the
presumption of death under the Civil Code and denies
the latter's claim by reason thereof, the claimant may file
an appeal with the Office of the President (OP) pursuant
to the principle of exhaustion of administrative remedies.
267
If the OP denies the appeal, the claimant may next seek
recourse via a petition for review with the CA under Rule
43 of the Rules of the Court.1avvphi1 And finally, shold
such recourse still fail, the claimant may file an appeal
by certiorari with the Supreme Court.
While we are constrained by case law to deny the instant
petition, the Court is hopeful that, by the foregoing
guidelines, the unfortunate experience of the petitioner
would no longer be replicated in the future.
WHEREFORE, the instant appeal is DENIED. The Decision
dated November 28, 2016 and Resolution dated March
20, 2017 of the Court of Appeals in CA-G.R. SP No.
129467 are AFFIRMED. The Court declares that a judicial
decision of a court of law that a person is presumptively
dead is not requirement before the Philippine Veterans'
Affairs Office and the Armed Forces of the Philippines for
their consideration.SO ORDERED.
G.R. No. 182894 April 22, 2014
FE FLORO VALINO, Petitioner,
vs.
ROSARIO D. ADRIANO, FLORANTE D. ADRIANO, RUBEN D.
ADRIANO, MARIA TERESA ADRIANO ONGOCO, VICTORIA
ADRIANO BAYONA, and LEAH ANTONETTE D.
ADRIANO, Respondents.
DECISION
MENDOZA, J.:
Challenged in this petition is the October 2, 2006
Decision1 and the May 9, 2008 Resolution2 of the Court
of Appeals (CA) in CA-G.R. CV No. 61613, which reversed
the October 1, 1998 Decision3 of the Regional Trial Court,
Branch 77, Quezon City (RTC) which ruled that petitioner
Fe Floro Valino (Valino) was entitled to the remains of the
decedent.
The Facts:
Atty. Adriano Adriano (Atty. Adriano), a partner in the
Pelaez Adriano and Gregorio Law Office, married
respondent Rosario Adriano (Rosario) on November 15,
1955. The couple had two (2) sons, Florante and Ruben
Adriano; three (3) daughters, Rosario, Victoria and Maria
Teresa; and one (1) adopted daughter, Leah Antonette.
The marriage of Atty. Adriano and Rosario, however,
turned sour and they were eventually separated-in-fact.
Years later, Atty. Adriano courted Valino, one of his
clients, until they decided to live together as husband
and wife. Despite such arrangement, he continued to
provide financial support to Rosario and their children
(respondents).
In 1992, Atty. Adriano died of acute emphysema. At that
time, Rosario was in the United States spending
Christmas with her children. As none of the family
members was around, Valino took it upon herself to
shoulder the funeral and burial expenses for Atty.
Adriano. When Rosario learned about the death of her
husband, she immediately called Valino and requested
that she delay the interment for a few days but her
request was not heeded. The remains of Atty. Adriano
were then interred at the mausoleum of the family of
Valino at the Manila Memorial Park. Respondents were
not able to attend the interment.
Claiming that they were deprived of the chance to view
the remains of Atty. Adriano before he was buried and
that his burial at the Manila Memorial Park was contrary
to his wishes, respondents commenced suit against
Valino praying that they be indemnified for actual, moral
and exemplary damages and attorney’s fees and that the
remains of Atty. Adriano be exhumed and transferred to
the family plot at the Holy Cross Memorial Cemetery in
Novaliches, Quezon City.
In her defense, Valino countered that Rosario and Atty.
Adriano had been separated for more than twenty (20)
years before he courted her. Valino claimed that
throughout the time they were together, he had
introduced her to his friends and associates as his wife.
Although they were living together, Valino admitted that
he never forgot his obligation to support the
respondents. She contended that, unlike Rosario, she
took good care of Atty. Adriano and paid for all his
medical expenses when he got seriously ill. She also
claimed that despite knowing that Atty. Adriano was in a
coma and dying, Rosario still left for the United States.
According to Valino, it was Atty. Adriano’s last wish that
his remains be interred in the Valino family mausoleum at
the Manila Memorial Park.
Valino further claimed that she had suffered damages as
result of the suit brought by respondents. Thus, she
prayed that she be awarded moral and exemplary
damages and attorney’s fees.
Decision of the RTC
The RTC dismissed the complaint of respondents for lack
of merit as well as the counterclaim of Valino after it
found them to have not been sufficiently proven.
268
The RTC opined that because Valino lived with Atty.
Adriano for a very long time, she knew very well that it
was his wish to be buried at the Manila Memorial Park.
Taking into consideration the fact that Rosario left for the
United States at the time that he was fighting his illness,
the trial court concluded that Rosario did not show love
and care for him. Considering also that it was Valino who
performed all the duties and responsibilities of a wife, the
RTC wrote that it could be reasonably presumed that he
wished to be buried in the Valino family mausoleum.4
In disposing of the case, the RTC noted that the
exhumation and the transfer of the body of Atty. Adriano
to the Adriano family plot at the Holy Cross Memorial
Cemetery in Novaliches, Quezon City, would not serve
any useful purpose and so he should be spared and
respected.5 Decision of the CA
On appeal, the CA reversed and set aside the RTC
decision and directed Valino to have the remains of Atty.
Adriano exhumed at the expense of respondents. It
likewise directed respondents, at their expense, to
transfer, transport and inter the remains of the decedent
in the family plot at the Holy Cross Memorial Park in
Novaliches, Quezon City.
In reaching said determination, the CA explained that
Rosario, being the legal wife, was entitled to the custody
of the remains of her deceased husband. Citing Article
305 of the New Civil Code in relation to Article 199 of the
Family Code, it was the considered view of the appellate
court that the law gave the surviving spouse not only the
duty but also the right to make arrangements for the
funeral of her husband. For the CA, Rosario was still
entitled to such right on the ground of her subsisting
marriage with Atty. Adriano at the time of the latter’s
death, notwithstanding their 30-year separation in fact.
Like the RTC, however, the CA did not award damages in
favor of respondents due to the good intentions shown
by Valino in giving the deceased a decent burial when
the wife and the family were in the United States. All
other claims for damages were similarly dismissed.
The Sole Issue
The lone legal issue in this petition is who between
Rosario and Valino is entitled to the remains of Atty.
Adriano.
The Court’s Ruling
Article 305 of the Civil Code, in relation to what is now
Article 1996 of the Family Code, specifies the persons
who have the right and duty to make funeral
arrangements for the deceased. Thus:
Art. 305. The duty and the right to make arrangements
for the funeral of a relative shall be in accordance with
the order established for support, under Article 294. In
case of descendants of the same degree, or of brothers
and sisters, the oldest shall be preferred. In case of
ascendants, the paternal shall have a better right.
[Emphases supplied]
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. (294a)
[Emphasis supplied]
Further, Article 308 of the Civil Code provides:
Art. 308. No human remains shall be retained, interred,
disposed of or exhumed without the consent of the
persons mentioned in Articles 294 and 305. [Emphases
supplied]
In this connection, Section 1103 of the Revised
Administrative Code provides:
Section 1103. Persons charged with the duty of burial. –
The immediate duty of burying the body of a deceased
person, regardless of the ultimate liability for the expense
thereof, shall devolve upon the persons herein below
specified:
(a) If the deceased was a married man or woman, the
duty of the burial shall devolve upon the surviving
spouse if he or she possesses sufficient means to pay the
necessary expenses;
x x x x. [Emphases supplied]
From the aforecited provisions, it is undeniable that the
law simply confines the right and duty to make funeral
arrangements to the members of the family to the
exclusion of one’s common law partner. In Tomas
Eugenio, Sr. v. Velez,7 a petition for habeas corpus was
269
filed by the brothers and sisters of the late Vitaliana
Vargas against her lover, Tomas Eugenio, Sr., alleging
that the latter forcibly took her and confined her in his
residence. It appearing that she already died of heart
failure due to toxemia of pregnancy, Tomas Eugenio, Sr.
sought the dismissal of the petition for lack of jurisdiction
and claimed the right to bury the deceased, as the
common-law husband.
In its decision, the Court resolved that the trial court
continued to have jurisdiction over the case
notwithstanding the death of Vitaliana Vargas. As to the
claim of Tomas Eugenio, Sr. that he should be considered
a "spouse" having the right and duty to make funeral
arrangements for his common-law wife, the Court ruled:
x x x Indeed, Philippine Law does not recognize common
law marriages. A man and woman not legally married
who cohabit for many years as husband and wife, who
represent themselves to the public as husband and wife,
and who are reputed to be husband and wife in the
community where they live may be considered legally
married in common law jurisdictions but not in the
Philippines.
While it is true that our laws do not just brush aside the
fact that such relationships are present in our society, and
that they produce a community of properties and
interests which is governed by law, authority exists in
case law to the effect that such form of co-ownership
requires that the man and woman living together must
not in any way be incapacitated to contract marriage. In
any case, herein petitioner has a subsisting marriage with
another woman, a legal impediment which disqualified
him from even legally marrying Vitaliana. In Santero vs.
CFI of Cavite, the Court, thru Mr. Justice Paras,
interpreting Art. 188 of the Civil Code (Support of
Surviving Spouse and Children During Liquidation of
Inventoried Property) stated: "Be it noted, however, that
with respect to 'spouse,' the same must be the legitimate
'spouse' (not common-law spouses)."
There is a view that under Article 332 of the Revised
Penal Code, the term "spouse" embraces common law
relation for purposes of exemption from criminal liability
in cases of theft, swindling and malicious mischief
committed or caused mutually by spouses. The Penal
Code article, it is said, makes no distinction between a
couple whose cohabitation is sanctioned by a sacrament
or legal tie and another who are husband and wife de
facto. But this view cannot even apply to the facts of the
case at bar. We hold that the provisions of the Civil Code,
unless expressly providing to the contrary as in Article
144, when referring to a "spouse" contemplate a lawfully
wedded spouse. Petitioner vis-a-vis Vitaliana was not a
lawfully-wedded spouse to her; in fact, he was not legally
capacitated to marry her in her lifetime.8 [Emphases
supplied]
As applied to this case, it is clear that the law gives the
right and duty to make funeral arrangements to Rosario,
she being the surviving legal wife of Atty. Adriano. The
fact that she was living separately from her husband and
was in the United States when he died has no controlling
significance. To say that Rosario had, in effect, waived or
renounced, expressly or impliedly, her right and duty to
make arrangements for the funeral of her deceased
husband is baseless. The right and duty to make funeral
arrangements, like any other right, will not be considered
as having been waived or renounced, except upon clear
and satisfactory proof of conduct indicative of a free and
voluntary intent to that end.9 While there was disaffection
between Atty. Adriano and Rosario and their children
when he was still alive, the Court also recognizes that
human compassion, more often than not, opens the door
to mercy and forgiveness once a family member joins his
Creator. Notably, it is an undisputed fact that the
respondents wasted no time in making frantic pleas to
Valino for the delay of the interment for a few days so
they could attend the service and view the remains of the
deceased. As soon as they came to know about Atty.
Adriano’s death in the morning of December 19, 1992
(December 20, 1992 in the Philippines), the respondents
immediately contacted Valino and the Arlington
Memorial Chapel to express their request, but to no avail.
Valino insists that the expressed wishes of the deceased
should nevertheless prevail pursuant to Article 307 of the
Civil Code. Valino’s own testimony that it was Atty.
Adriano’s wish to be buried in their family plot is being
relied upon heavily. It should be noted, however, that
other than Valino’s claim that Atty. Adriano wished to be
buried at the Manila Memorial Park, no other evidence
was presented to corroborate such claim. Considering
that Rosario equally claims that Atty. Adriano wished to
be buried in the Adriano family plot in Novaliches, it
becomes apparent that the supposed burial wish of Atty.
Adriano was unclear and undefinite. Considering this
ambiguity as to the true wishes of the deceased, it is the
law that supplies the presumption as to his intent. No
presumption can be said to have been created in Valino’s
favor, solely on account of a long-time relationship with
Atty. Adriano.
Moreover, it cannot be surmised that just because
Rosario was unavailable to bury her husband when she
died, she had already renounced her right to do so.
Verily, in the same vein that the right and duty to make
funeral arrangements will not be considered as having
been waived or renounced, the right to deprive a
legitimate spouse of her legal right to bury the remains
of her deceased husband should not be readily presumed
270
to have been exercised, except upon clear and
satisfactory proof of conduct indicative of a free and
voluntary intent of the deceased to that end. Should
there be any doubt as to the true intent of the deceased,
the law favors the legitimate family. Here, Rosario’s
keenness to exercise the rights and obligations accorded
to the legal wife was even bolstered by the fact that she
was joined by the children in this case.
Even assuming, ex gratia argumenti, that Atty. Adriano
truly wished to be buried in the Valino family plot at the
Manila Memorial Park, the result remains the same.
Article 307 of the Civil Code provides:
Art. 307. The funeral shall be in accordance with the
expressed wishes of the deceased. In the absence of such
expression, his religious beliefs or affiliation shall
determine the funeral rites. In case of doubt, the form of
the funeral shall be decided upon by the person obliged
to make arrangements for the same, after consulting the
other members of the family.
From its terms, it is apparent that Article 307 simply seeks
to prescribe the "form of the funeral rites" that should
govern in the burial of the deceased. As thoroughly
explained earlier, the right and duty to make funeral
arrangements reside in the persons specified in Article
305 in relation to Article 199 of the Family Code. Even if
Article 307 were to be interpreted to include the place of
burial among those on which the wishes of the deceased
shall be followed, Dr. Arturo M. Tolentino (Dr. Tolentino),
an eminent authority on civil law, commented that it is
generally recognized that any inferences as to the wishes
of the deceased should be established by some form of
testamentary disposition.10 As Article 307 itself provides,
the wishes of the deceased must be expressly provided. It
cannot be inferred lightly, such as from the circumstance
that Atty. Adriano spent his last remaining days with
Valino. It bears stressing once more that other than
Valino’s claim that Atty. Adriano wished to be buried at
the Valino family plot, no other evidence was presented
to corroborate it.
At any rate, it should be remembered that the wishes of
the decedent with respect to his funeral are not absolute.
As Dr. Tolentino further wrote:
The dispositions or wishes of the deceased in relation to
his funeral, must not be contrary to law. They must not
violate the legal and reglamentary provisions concerning
funerals and the disposition of the remains, whether as
regards the time and manner of disposition, or the place
of burial, or the ceremony to be observed.11 [Emphases
supplied]
In this case, the wishes of the deceased with respect to
his funeral are limited by Article 305 of the Civil Code in
relation to Article 199 of the Family Code, and subject the
same to those charged with the right and duty to make
the proper arrangements to bury the remains of their
loved-one. As aptly explained by the appellate court in its
disquisition:
The testimony of defendant-appellee Fe Floro Valino that
it was the oral wish of Atty. Adriano Adriano that he be
interred at the Floro family’s mausoleum at the Manila
Memorial Park, must bend to the provisions of the law.
Even assuming arguendo that it was the express wish of
the deceased to be interred at the Manila Memorial Park,
still, the law grants the duty and the right to decide what
to do with the remains to the wife, in this case, plaintiff-
appellant Rosario D. Adriano, as the surviving spouse,
and not to defendant-appellee Fe Floro Valino, who is
not even in the list of those legally preferred, despite the
fact that her intentions may have been very
commendable. The law does not even consider the
emotional fact that husband and wife had, in this case at
bench, been separated-in-fact and had been living apart
for more than 30 years.12
As for Valino’s contention that there is no point in
exhuming and transferring the remains of Atty. Adriano,
it should be said that the burial of his remains in a place
other than the Adriano family plot in Novaliches runs
counter to the wishes of his family. It does not only
violate their right provided by law, but it also disrespects
the family because the remains of the patriarch are
buried in the family plot of his live-in partner.
It is generally recognized that the corpse of an individual
is outside the commerce of man. However, the law
recognizes that a certain right of possession over the
corpse exists, for the purpose of a decent burial, and for
the exclusion of the intrusion by third persons who have
no legitimate interest in it. This quasi-property right,
arising out of the duty of those obligated by law to bury
their dead, also authorizes them to take possession of
the dead body for purposes of burial to have it remain in
its final resting place, or to even transfer it to a proper
place where the memory of the dead may receive the
respect of the living. This is a family right. There can be
no doubt that persons having this right may recover the
corpse from third persons.13
All this notwithstanding, the Court finds laudable the acts
of Valino in taking care of Atty. Adriano during his final
moments and giving him a proper burial. For her
sacrifices, it would indeed be unkind to assess actual or
moral damages against her. As aptly explained by the CA:
271
The trial court found that there was good faith on the WHEREFORE, the petition is DENIED.
part of defendant-appellee Fe Floro Valino, who, having
lived with Atty. Adriano after he was separated in fact SO ORDERED.
from his wife, lovingly and caringly took care of the well-
being of Atty. Adriano Adriano while he was alive and
G.R. No. 174689 October 22, 2007
even took care of his remains when he had died.

ROMMEL JACINTO DANTES SILVERIO, petitioner,

On the issue of damages, plaintiffs-appellants are not
vs.
entitled to actual damages. Defendant-appellee Fe Floro
REPUBLIC OF THE PHILIPPINES, respondent.
Valino had all the good intentions in giving the remains
of Atty. Adriano a decent burial when the wife and family
were all in the United States and could not attend to his DECISION
burial. Actual damages are those awarded in satisfaction
of, or in recompense for, loss or injury sustained. To be CORONA, J.:
recoverable, they must not only be capable of proof but
must actually be proven with a reasonable degree of When God created man, He made him in the
certainty. In this case at bench, there was no iota of likeness of God; He created them male and
evidence presented to justify award of actual damages. female. (Genesis 5:1-2)

Plaintiffs-appellants are not also entitled to moral and
exemplary damages.1âwphi1 Moral damages may be
recovered only if the plaintiff is able to satisfactorily
prove the existence of the factual basis for the damages
and its causal connection with the acts complained of
because moral damages although incapable of pecuniary
estimation are designed not to impose a penalty but to
compensate for injury sustained and actual damages
suffered. No injury was caused to plaintiffs-appellants,
nor was any intended by anyone in this case. Exemplary
damages, on the other hand, may only be awarded if
claimant is able to establish his right to moral, temperate,
liquidated or compensatory damages. Unfortunately,
neither of the requirements to sustain an award for either
of these damages would appear to have been adequately
established by plaintiffs-appellants.
As regards the award of attorney's fees, it is an accepted
doctrine that the award thereof as an item of damages is
the exception rather than the rule, and counsel's fees are
not to be awarded every time a party wins a suit. The
power of the court to award attorney's fees under Article
2208 of the New Civil Code demands factual, legal and
equitable justification, without which the award is a
conclusion without a premise, its basis being improperly
left to speculation and conjecture. In this case, we have
searched but found nothing in plaintiffs-appellants' suit
that justifies the award of attorney's fees.14
Finally, it should be said that controversies as to who
should make arrangements for the funeral of a deceased
have often aggravated the bereavement of the family
and disturbed the proper solemnity which should prevail
at every funeral. It is for the purpose of preventing such
controversies that the Code Commission saw it best to
include the provisions on "Funerals."15
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"

272
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 Appeals7 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
273
 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
274
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
275
 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.29 Thus, 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."33 Female 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
union between a man and a woman.37 One of its essential
requisites is the legal capacity of the contracting parties
who must be a male and a female.38 To grant the
changes sought by petitioner will substantially
276
reconfigure and greatly alter the laws on marriage and
family relations. It will allow the union of a man with
another man who has undergone sex reassignment (a
male-to-female post-operative transsexual). Second,
there are various laws which apply particularly to women
such as the provisions of the Labor Code on employment
of women,39 certain felonies under the Revised Penal
Code40 and the presumption of survivorship in case of
calamities under Rule 131 of the Rules of Court,41 among
others. These laws underscore the public policy in
relation to women which could be substantially affected
if petitioner’s petition were to be granted.
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.
Petitioner pleads that "[t]he unfortunates are also entitled
to a life of happiness, contentment and [the] realization
of their dreams." No argument about that. The Court
recognizes that there are people whose preferences and
orientation do not fit neatly into the commonly
recognized parameters of social convention and that, at
least for them, life is indeed an ordeal. However, the
remedies petitioner seeks involve questions of public
policy to be addressed solely by the legislature, not by
the courts.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.
G.R. No. 186571 August 11, 2010
GERBERT R. CORPUZ, Petitioner,
vs.
DAISYLYN TIROL STO. TOMAS and The SOLICITOR
GENERAL, Respondents.
DECISION
BRION, J.:
Before the Court is a direct appeal from the decision1 of
the Regional Trial Court (RTC) of Laoag City, Branch 11,
elevated via a petition for review on certiorari2 under Rule
45 of the Rules of Court (present petition).
Petitioner Gerbert R. Corpuz was a former Filipino citizen
who acquired Canadian citizenship through naturalization
on November 29, 2000.3 On January 18, 2005, Gerbert
married respondent Daisylyn T. Sto. Tomas, a Filipina, in
Pasig City.4 Due to work and other professional
commitments, Gerbert left for Canada soon after the
wedding. He returned to the Philippines sometime in
April 2005 to surprise Daisylyn, but was shocked to
discover that his wife was having an affair with another
man. Hurt and disappointed, Gerbert returned to Canada
and filed a petition for divorce. The Superior Court of
Justice, Windsor, Ontario, Canada granted Gerbert’s
petition for divorce on December 8, 2005. The divorce
decree took effect a month later, on January 8, 2006.5
Two years after the divorce, Gerbert has moved on and
has found another Filipina to love. Desirous of marrying
his new Filipina fiancée in the Philippines, Gerbert went
to the Pasig City Civil Registry Office and registered the
Canadian divorce decree on his and Daisylyn’s marriage
certificate. Despite the registration of the divorce decree,
an official of the National Statistics Office (NSO) informed
Gerbert that the marriage between him and Daisylyn still
subsists under Philippine law; to be enforceable, the
foreign divorce decree must first be judicially recognized
by a competent Philippine court, pursuant to NSO
Circular No. 4, series of 1982.6
Accordingly, Gerbert filed a petition for judicial
recognition of foreign divorce and/or declaration of
marriage as dissolved (petition) with the RTC. Although
summoned, Daisylyn did not file any responsive pleading
277
but submitted instead a notarized letter/manifestation to
the trial court. She offered no opposition to Gerbert’s
petition and, in fact, alleged her desire to file a similar
case herself but was prevented by financial and personal
circumstances. She, thus, requested that she be
considered as a party-in-interest with a similar prayer to
Gerbert’s.
In its October 30, 2008 decision,7 the RTC denied
Gerbert’s petition. The RTC concluded that Gerbert was
not the proper party to institute the action for judicial
recognition of the foreign divorce decree as he is a
naturalized Canadian citizen. It ruled that only the Filipino
spouse can avail of the remedy, under the second
paragraph of Article 26 of the Family Code,8 in order for
him or her to be able to remarry under Philippine
law.9 Article 26 of the Family Code reads:
Art. 26. All marriages solemnized outside the Philippines,
in accordance with the laws in force in the country where
they were solemnized, and valid there as such, shall also
be valid in this country, except those prohibited under
Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse capacitating
him or her to remarry, the Filipino spouse shall likewise
have capacity to remarry under Philippine law.
This conclusion, the RTC stated, is consistent with the
legislative intent behind the enactment of the second
paragraph of Article 26 of the Family Code, as
determined by the Court in Republic v. Orbecido III;10 the
provision was enacted to "avoid the absurd situation
where the Filipino spouse remains married to the alien
spouse who, after obtaining a divorce, is no longer
married to the Filipino spouse."11
THE PETITION
From the RTC’s ruling,12 Gerbert filed the present
petition.13
Gerbert asserts that his petition before the RTC is
essentially for declaratory relief, similar to that filed in
Orbecido; he, thus, similarly asks for a determination of
his rights under the second paragraph of Article 26 of the
Family Code. Taking into account the rationale behind
the second paragraph of Article 26 of the Family Code,
he contends that the provision applies as well to the
benefit of the alien spouse. He claims that the RTC ruling
unduly stretched the doctrine in Orbecido by limiting the
standing to file the petition only to the Filipino spouse –
an interpretation he claims to be contrary to the essence
of the second paragraph of Article 26 of the Family Code.
He considers himself as a proper party, vested with
sufficient legal interest, to institute the case, as there is a
possibility that he might be prosecuted for bigamy if he
marries his Filipina fiancée in the Philippines since two
marriage certificates, involving him, would be on file with
the Civil Registry Office. The Office of the Solicitor
General and Daisylyn, in their respective
Comments,14 both support Gerbert’s position.
Essentially, the petition raises the issue of whether the
second paragraph of Article 26 of the Family Code
extends to aliens the right to petition a court of this
jurisdiction for the recognition of a foreign divorce
decree.
THE COURT’S RULING
The alien spouse can claim no right under the second
paragraph of Article 26 of the Family Code as the
substantive right it establishes is in favor of the Filipino
spouse
The resolution of the issue requires a review of the
legislative history and intent behind the second
paragraph of Article 26 of the Family Code.
The Family Code recognizes only two types of defective
marriages – void15 and voidable16 marriages. In both
cases, the basis for the judicial declaration of absolute
nullity or annulment of the marriage exists before or at
the time of the marriage. Divorce, on the other hand,
contemplates the dissolution of the lawful union for
cause arising after the marriage.17 Our family laws do not
recognize absolute divorce between Filipino citizens.18
Recognizing the reality that divorce is a possibility in
marriages between a Filipino and an alien, President
Corazon C. Aquino, in the exercise of her legislative
powers under the Freedom Constitution,19 enacted
Executive Order No. (EO) 227, amending Article 26 of the
Family Code to its present wording, as follows:
Art. 26. All marriages solemnized outside the Philippines,
in accordance with the laws in force in the country where
they were solemnized, and valid there as such, shall also
be valid in this country, except those prohibited under
Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse capacitating
him or her to remarry, the Filipino spouse shall likewise
have capacity to remarry under Philippine law.
278
Through the second paragraph of Article 26 of the Family
Code, EO 227 effectively incorporated into the law this
Court’s holding in Van Dorn v. Romillo, Jr.20 and Pilapil v.
Ibay-Somera.21 In both cases, the Court refused to
acknowledge the alien spouse’s assertion of marital
rights after a foreign court’s divorce decree between the
alien and the Filipino. The Court, thus, recognized that
the foreign divorce had already severed the marital bond
between the spouses. The Court reasoned in Van Dorn v.
Romillo that:
To maintain x x x that, under our laws, [the Filipino
spouse] has to be considered still married to [the alien
spouse] and still subject to a wife's obligations x x x
cannot be just. [The Filipino spouse] should not be
obliged to live together with, observe respect and fidelity,
and render support to [the alien spouse]. The latter
should not continue to be one of her heirs with possible
rights to conjugal property. She should not be
discriminated against in her own country if the ends of
justice are to be served.22
As the RTC correctly stated, the provision was included in
the law "to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after
obtaining a divorce, is no longer married to the Filipino
spouse."23 The legislative intent is for the benefit of the
Filipino spouse, by clarifying his or her marital status,
settling the doubts created by the divorce decree.
Essentially, the second paragraph of Article 26 of the
Family Code provided the Filipino spouse a substantive
right to have his or her marriage to the alien spouse
considered as dissolved, capacitating him or her to
remarry.24 Without the second paragraph of Article 26 of
the Family Code, the judicial recognition of the foreign
decree of divorce, whether in a proceeding instituted
precisely for that purpose or as a related issue in another
proceeding, would be of no significance to the Filipino
spouse since our laws do not recognize divorce as a
mode of severing the marital bond;25 Article 17 of the
Civil Code provides that the policy against absolute
divorces cannot be subverted by judgments promulgated
in a foreign country. The inclusion of the second
paragraph in Article 26 of the Family Code provides the
direct exception to this rule and serves as basis for
recognizing the dissolution of the marriage between the
Filipino spouse and his or her alien spouse.
Additionally, an action based on the second paragraph of
Article 26 of the Family Code is not limited to the
recognition of the foreign divorce decree. If the court
finds that the decree capacitated the alien spouse to
remarry, the courts can declare that the Filipino spouse is
likewise capacitated to contract another marriage. No
court in this jurisdiction, however, can make a similar
declaration for the alien spouse (other than that already
established by the decree), whose status and legal
capacity are generally governed by his national law.26
Given the rationale and intent behind the enactment, and
the purpose of the second paragraph of Article 26 of the
Family Code, the RTC was correct in limiting the
applicability of the provision for the benefit of the
Filipino spouse. In other words, only the Filipino spouse
can invoke the second paragraph of Article 26 of the
Family Code; the alien spouse can claim no right under
this provision.
The foreign divorce decree is presumptive evidence of a
right that clothes the party with legal interest to petition
for its recognition in this jurisdiction
We qualify our above conclusion – i.e., that the second
paragraph of Article 26 of the Family Code bestows no
rights in favor of aliens – with the complementary
statement that this conclusion is not sufficient basis to
dismiss Gerbert’s petition before the RTC. In other words,
the unavailability of the second paragraph of Article 26 of
the Family Code to aliens does not necessarily strip
Gerbert of legal interest to petition the RTC for the
recognition of his foreign divorce decree. The foreign
divorce decree itself, after its authenticity and conformity
with the alien’s national law have been duly proven
according to our rules of evidence, serves as a
presumptive evidence of right in favor of Gerbert,
pursuant to Section 48, Rule 39 of the Rules of Court
which provides for the effect of foreign judgments. This
Section states:
SEC. 48. Effect of foreign judgments or final orders.—The
effect of a judgment or final order of a tribunal of a
foreign country, having jurisdiction to render the
judgment or final order is as follows:
(a) In case of a judgment or final order upon a
specific thing, the judgment or final order is
conclusive upon the title of the thing; and
(b) In case of a judgment or final order against
a person, the judgment or final order is
presumptive evidence of a right as between the
parties and their successors in interest by a
subsequent title.
In either case, the judgment or final order may be
repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of
law or fact.
To our mind, direct involvement or being the subject of
the foreign judgment is sufficient to clothe a party with
279
the requisite interest to institute an action before our
courts for the recognition of the foreign judgment. In a
divorce situation, we have declared, no less, that the
divorce obtained by an alien abroad may be recognized
in the Philippines, provided the divorce is valid according
to his or her national law.27
The starting point in any recognition of a foreign divorce
judgment is the acknowledgment that our courts do not
take judicial notice of foreign judgments and laws. Justice
Herrera explained that, as a rule, "no sovereign is bound
to give effect within its dominion to a judgment rendered
by a tribunal of another country."28 This means that the
foreign judgment and its authenticity must be proven as
facts under our rules on evidence, together with the
alien’s applicable national law to show the effect of the
judgment on the alien himself or herself.29 The
recognition may be made in an action instituted
specifically for the purpose or in another action where a
party invokes the foreign decree as an integral aspect of
his claim or defense.
In Gerbert’s case, since both the foreign divorce decree
and the national law of the alien, recognizing his or her
capacity to obtain a divorce, purport to be official acts of
a sovereign authority, Section 24, Rule 132 of the Rules of
Court comes into play. This Section requires proof, either
by (1) official publications or (2) copies attested by the
officer having legal custody of the documents. If the
copies of official records are not kept in the Philippines,
these must be (a) accompanied by a certificate issued by
the proper diplomatic or consular officer in the Philippine
foreign service stationed in the foreign country in which
the record is kept and (b) authenticated by the seal of his
office.
made, as the foreign judgment, once recognized, shall
have the effect of res judicata32 between the parties, as
provided in Section 48, Rule 39 of the Rules of Court.33
In fact, more than the principle of comity that is served
by the practice of reciprocal recognition of foreign
judgments between nations, the res judicata effect of the
foreign judgments of divorce serves as the deeper basis
for extending judicial recognition and for considering the
alien spouse bound by its terms. This same effect, as
discussed above, will not obtain for the Filipino spouse
were it not for the substantive rule that the second
paragraph of Article 26 of the Family Code provides.
Considerations beyond the recognition of the foreign
divorce decree
As a matter of "housekeeping" concern, we note that the
Pasig City Civil Registry Office has already recorded the
divorce decree on Gerbert and Daisylyn’s marriage
certificate based on the mere presentation of the
decree.34 We consider the recording to be legally
improper; hence, the need to draw attention of the bench
and the bar to what had been done.
Article 407 of the Civil Code states that "[a]cts, events and
judicial decrees concerning the civil status of persons
shall be recorded in the civil register." The law requires
the entry in the civil registry of judicial decrees that
produce legal consequences touching upon a person’s
legal capacity and status, i.e., those affecting "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."35

The records show that Gerbert attached to his petition a

A judgment of divorce is a judicial decree, although a
copy of the divorce decree, as well as the required
foreign one, affecting a person’s legal capacity and status
certificates proving its authenticity,30 but failed to include
that must be recorded. In fact, Act No. 3753 or the Law
a copy of the Canadian law on divorce.31 Under this
on Registry of Civil Status specifically requires the
situation, we can, at this point, simply dismiss the petition
registration of divorce decrees in the civil registry:
for insufficiency of supporting evidence, unless we deem
it more appropriate to remand the case to the RTC to
determine whether the divorce decree is consistent with Sec. 1. Civil Register. – A civil register is established for
the Canadian divorce law. recording the civil status of persons, in which shall be
entered:

We deem it more appropriate to take this latter course of

action, given the Article 26 interests that will be served (a) births;
and the Filipina wife’s (Daisylyn’s) obvious conformity
with the petition. A remand, at the same time, will allow (b) deaths;
other interested parties to oppose the foreign judgment
and overcome a petitioner’s presumptive evidence of a (c) marriages;
right by proving want of jurisdiction, want of notice to a
party, collusion, fraud, or clear mistake of law or fact.
(d) annulments of marriages;
Needless to state, every precaution must be taken to
ensure conformity with our laws before a recognition is

280
 (e) divorces;
(f) legitimations;
(g) adoptions;
(h) acknowledgment of natural children;
(i) naturalization; and
(j) changes of name.
xxxx
Sec. 4. Civil Register Books. — The local registrars shall
keep and preserve in their offices the following books, in
which they shall, respectively make the proper entries
concerning the civil status of persons:
(1) Birth and death register;
(2) Marriage register, in which shall be entered
not only the marriages solemnized but also
divorces and dissolved marriages.
(3) Legitimation, acknowledgment, adoption,
change of name and naturalization register.
But while the law requires the entry of the divorce decree
in the civil registry, the law and the submission of the
decree by themselves do not ipso facto authorize the
decree’s registration. The law should be read in relation
with the requirement of a judicial recognition of the
foreign judgment before it can be given res judicata
effect. In the context of the present case, no judicial order
as yet exists recognizing the foreign divorce decree. Thus,
the Pasig City Civil Registry Office acted totally out of
turn and without authority of law when it annotated the
Canadian divorce decree on Gerbert and Daisylyn’s
marriage certificate, on the strength alone of the foreign
decree presented by Gerbert.
Evidently, the Pasig City Civil Registry Office was aware of
the requirement of a court recognition, as it cited NSO
Circular No. 4, series of 1982,36 and Department of Justice
Opinion No. 181, series of 198237 – both of which
required a final order from a competent Philippine court
before a foreign judgment, dissolving a marriage, can be
registered in the civil registry, but it, nonetheless, allowed
the registration of the decree. For being contrary to law,
the registration of the foreign divorce decree without the
requisite judicial recognition is patently void and cannot
produce any legal effect.1avvphi1
Another point we wish to draw attention to is that the
recognition that the RTC may extend to the Canadian
divorce decree does not, by itself, authorize the
cancellation of the entry in the civil registry. A petition for
recognition of a foreign judgment is not the proper
proceeding, contemplated under the Rules of Court, for
the cancellation of entries in the civil registry.
Article 412 of the Civil Code declares that "no entry in a
civil register shall be changed or corrected, without
judicial order." The Rules of Court supplements Article
412 of the Civil Code by specifically providing for a
special remedial proceeding by which entries in the civil
registry may be judicially cancelled or corrected. Rule 108
of the Rules of Court sets in detail the jurisdictional and
procedural requirements that must be complied with
before a judgment, authorizing the cancellation or
correction, may be annotated in the civil registry. It also
requires, among others, that the verified petition must be
filed with the RTC of the province where the
corresponding civil registry is located;38 that the civil
registrar and all persons who have or claim any interest
must be made parties to the proceedings;39 and that the
time and place for hearing must be published in a
newspaper of general circulation.40 As these basic
jurisdictional requirements have not been met in the
present case, we cannot consider the petition Gerbert
filed with the RTC as one filed under Rule 108 of the
Rules of Court.
We hasten to point out, however, that this ruling should
not be construed as requiring two separate proceedings
for the registration of a foreign divorce decree in the civil
registry – one for recognition of the foreign decree and
another specifically for cancellation of the entry under
Rule 108 of the Rules of Court. The recognition of the
foreign divorce decree may be made in a Rule 108
proceeding itself, as the object of special proceedings
(such as that in Rule 108 of the Rules of Court) is
precisely to establish the status or right of a party or a
particular fact. Moreover, Rule 108 of the Rules of Court
can serve as the appropriate adversarial proceeding41 by
which the applicability of the foreign judgment can be
measured and tested in terms of jurisdictional infirmities,
want of notice to the party, collusion, fraud, or clear
mistake of law or fact.
WHEREFORE, we GRANT the petition for review on
certiorari, and REVERSE the October 30, 2008 decision of
the Regional Trial Court of Laoag City, Branch 11, as well
as its February 17, 2009 order. We order the REMAND of
the case to the trial court for further proceedings in
accordance with our ruling above. Let a copy of this
Decision be furnished the Civil Registrar General. No
costs.
281
SO ORDERED.
G.R. No. 204169 September 11, 2013
YASUO IWASAWA, PETITIONER,
vs.
FELISA CUSTODIO GANGAN1 (A.K.A FELISA GANGAN
ARAMBULO, AND FELISA GANGAN IWASAWA) AND THE
LOCAL CIVIL REGISTRAR OF PASAY CITY, RESPONDENTS.
DECISION
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari under Rule
45 of the 1997 Rules of Civil Procedure, as amended,
assailing the September 4, 2012 Decision2 and October
16, 2012 Order3 of the Regional Trial Court (RTC), Branch
43, of Manila in Civil Case No. 11-126203. The RTC
denied the petition for declaration of nullity of the
marriage of petitioner Yasuo Iwasawa with private
respondent Felisa Custodio Gangan due to insufficient
evidence.
The antecedents follow:
Petitioner, a Japanese national, met private respondent
sometime in 2002 in one of his visits to the Philippines.
Private respondent introduced herself as "single" and
"has never married before." Since then, the two became
close to each other. Later that year, petitioner came back
to the Philippines and married private respondent on
November 28, 2002 in Pasay City. After the wedding, the
couple resided in Japan.4
In July 2009, petitioner noticed his wife become
depressed. Suspecting that something might have
happened in the Philippines, he confronted his wife
about it. To his shock, private respondent confessed to
him that she received news that her previous husband
passed away.5
Petitioner sought to confirm the truth of his wife’s
confession and discovered that indeed, she was married
to one Raymond Maglonzo Arambulo and that their
marriage took place on June 20, 1994.6 This prompted
petitioner to file a petition7 for the declaration of his
marriage to private respondent as null and void on the
ground that their marriage is a bigamous one, based on
Article 35(4) in relation to Article 41 of the Family Code of
the Philippines.
During trial, aside from his testimony, petitioner also
offered the following pieces of documentary evidence
issued by the National Statistics Office (NSO):
(1)
Certificate of Marriage8 between petitioner and
private respondent marked as Exhibit "A" to
prove the fact of marriage between the parties
on November 28, 2002;
(2)
Certificate of Marriage9 between private
respondent and Raymond Maglonzo Arambulo
marked as Exhibit "B" to prove the fact of
marriage between the parties on June 20, 1994;
(3)
Certificate of Death10 of Raymond Maglonzo
Arambulo marked as Exhibits "C" and "C-1" to
prove the fact of the latter’s death on July 14,
2009; and
(4)
Certification11 from the NSO to the effect that
there are two entries of marriage recorded by
the office pertaining to private respondent
marked as Exhibit "D" to prove that private
respondent in fact contracted two marriages,
the first one was to a Raymond Maglonzo
Arambulo on June 20, 1994, and second, to
petitioner on November 28, 2002.
The prosecutor appearing on behalf of the Office of the
Solicitor General (OSG) admitted the authenticity and due
execution of the above documentary exhibits during pre-
trial.12
On September 4, 2012, the RTC rendered the assailed
decision. It ruled that there was insufficient evidence to
prove private respondent’s prior existing valid marriage
to another man. It held that while petitioner offered the
certificate of marriage of private respondent to
Arambulo, it was only petitioner who testified about said
marriage. The RTC ruled that petitioner’s testimony is
unreliable because he has no personal knowledge of
private respondent’s prior marriage nor of Arambulo’s
death which makes him a complete stranger to the
marriage certificate between private respondent and
Arambulo and the latter’s death certificate. It further
ruled that petitioner’s testimony about the NSO
282
certification is likewise unreliable since he is a stranger to
the preparation of said document.
Petitioner filed a motion for reconsideration, but the
same was denied by the RTC in an Order dated October
16, 2012.
Hence this petition raising the sole legal issue of whether
the testimony of the NSO records custodian certifying
the authenticity and due execution of the public
documents issued by said office was necessary before
they could be accorded evidentiary weight.
Petitioner argues that the documentary evidence he
presented are public documents which are considered
self-authenticating and thus it was unnecessary to call
the NSO Records Custodian as witness. He cites Article
410 of the Civil Code which provides that books making
up the civil register and all documents relating thereto
shall be considered public documents and shall be prima
facie evidence of the facts stated therein. Moreover, the
trial prosecutor himself also admitted the authenticity of
said documents.
The OSG, in its Comment,13 submits that the findings of
the RTC are not in accord with law and established
jurisprudence. It contends that both Republic Act No.
3753, otherwise known as the Law on Registry of Civil
Status, and the Civil Code elaborated on the character of
documents arising from records and entries made by the
civil registrar and categorically declared them as public
documents. Being public documents, said documents are
admissible in evidence even without further proof of their
due execution and genuineness and consequently, there
was no need for the court to require petitioner to present
the records custodian or officer from the NSO to testify
on them. The OSG further contends that public
documents have probative value since they are prima
facie evidence of the facts stated therein as provided in
the above-quoted provision of the Civil Code. Thus, the
OSG submits that the public documents presented by
petitioner, considered together, completely establish the
facts in issue.
In her letter14 dated March 19, 2013 to this Court, private
respondent indicated that she is not against her
husband’s petition to have their marriage declared null
and void. She likewise admitted therein that she
contracted marriage with Arambulo on June 20, 1994 and
contracted a second marriage with petitioner on
November 28, 2002. She further admitted that it was due
to poverty and joblessness that she married petitioner
without telling the latter that she was previously married.
Private respondent also confirmed that it was when she
found out that Arambulo passed away on July 14, 2009
that she had the guts to confess to petitioner about her
previous marriage. Thereafter, she and petitioner have
separated.
We grant the petition.
There is no question that the documentary evidence
submitted by petitioner are all public
documents.1âwphi1 As provided in the Civil Code:
ART. 410. The books making up the civil register and all
documents relating thereto shall be considered public
documents and shall be prima facie evidence of the facts
therein contained.
As public documents, they are admissible in evidence
even without further proof of their due execution and
genuineness.15 Thus, the RTC erred when it disregarded
said documents on the sole ground that the petitioner
did not present the records custodian of the NSO who
issued them to testify on their authenticity and due
execution since proof of authenticity and due execution
was not anymore necessary. Moreover, not only are said
documents admissible, they deserve to be given
evidentiary weight because they constitute prima facie
evidence of the facts stated therein. And in the instant
case, the facts stated therein remain unrebutted since
neither the private respondent nor the public prosecutor
presented evidence to the contrary.
This Court has consistently held that a judicial declaration
of nullity is required before a valid subsequent marriage
can be contracted; or else, what transpires is a bigamous
marriage,16 which is void from the beginning as provided
in Article 35(4) of the Family Code of the Philippines. And
this is what transpired in the instant case.
As correctly pointed out by the OSG, the documentary
exhibits taken together concretely establish the nullity of
the marriage of petitioner to private respondent on the
ground that their marriage is bigamous. The exhibits
directly prove the following facts: (1) that private
respondent married Arambulo on June 20, 1994 in the
City of Manila; (2) that private respondent contracted a
second marriage this time with petitioner on November
28, 2002 in Pasay City; (3) that there was no judicial
declaration of nullity of the marriage of private
respondent with Arambulo at the time she married
petitioner; (3) that Arambulo died on July 14, 2009 and
that it was only on said date that private respondent’s
marriage with Arambulo was deemed to have been
dissolved; and (4) that the second marriage of private
respondent to petitioner is bigamous, hence null and
void, since the first marriage was still valid and subsisting
when the second marriage was contracted.
283
WHEREFORE, the petition for review on certiorari is
GRANTED. The September 4, 2012 Decision and October
16, 2012 Order of the Regional Trial Court of Manila,
Branch 43, in Civil Case No. 11-126203 are hereby SET
ASIDE. The marriage of petitioner Yasuo Iwasawa and
private respondent Felisa Custodio Gangan is declared
NULL and VOID.
The Local Civil Registrar of Pasay City and the National
Statistics Office are hereby ORDERED to make proper
entries into the records of the abovementioned parties in
accordance with this Decision.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 189538 February 10, 2014
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
MERLINDA L. OLAYBAR, Respondent.
DECISION
PERALTA, J.:
Assailed in this petition for review on certiorari under
Rule 45 of the Rules of Court are the Regional Trial
Court1 (RTC) Decision2 dated May 5, 2009 and
Order3 dated August 25, 2009 in SP. Proc. No. 16519-CEB.
The assailed decision granted respondent Merlinda L.
Olaybar's petition for cancellation of entries in the latter's
marriage contract; while the assailed order denied the
motion for reconsideration filed by petitioner Republic of
the Philippines through the Office of the Solicitor General
(OSG).
The facts of the case are as follows:
Respondent requested from the National Statistics Office
(NSO) a Certificate of No Marriage (CENOMAR) as one of
the requirements for her marriage with her boyfriend of
five years. Upon receipt thereof, she discovered that she
was already married to a certain Ye Son Sune, a Korean
National, on June 24, 2002, at the Office of the Municipal
Trial Court in Cities (MTCC), Palace of Justice. She denied
having contracted said marriage and claimed that she did
not know the alleged husband; she did not appear before
the solemnizing officer; and, that the signature appearing
in the marriage certificate is not hers.4 She, thus, filed a
Petition for Cancellation of Entries in the Marriage
Contract, especially the entries in the wife portion
thereof.5 Respondent impleaded the Local Civil Registrar
of Cebu City, as well as her alleged husband, as parties to
the case.
During trial, respondent testified on her behalf and
explained that she could not have appeared before Judge
Mamerto Califlores, the supposed solemnizing officer, at
the time the marriage was allegedly celebrated, because
she was then in Makati working as a medical distributor
in Hansao Pharma. She completely denied having known
the supposed husband, but she revealed that she
recognized the named witnesses to the marriage as she
had met them while she was working as a receptionist in
Tadels Pension House. She believed that her name was
used by a certain Johnny Singh, who owned a travel
agency, whom she gave her personal circumstances in
order for her to obtain a passport.6 Respondent also
presented as witness a certain Eufrocina Natinga, an
employee of MTCC, Branch 1, who confirmed that the
marriage of Ye Son Sune was indeed celebrated in their
office, but claimed that the alleged wife who appeared
was definitely not respondent.7 Lastly, a document
examiner testified that the signature appearing in the
marriage contract was forged.8
On May 5, 2009, the RTC rendered the assailed Decision,
the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered, the petition
is granted in favor of the petitioner, Merlinda L. Olaybar.
The Local Civil Registrar of Cebu City is directed to cancel
all the entries in the WIFE portion of the alleged marriage
contract of the petitioner and respondent Ye Son Sune.
SO ORDERED.9
Finding that the signature appearing in the subject
marriage contract was not that of respondent, the court
found basis in granting the latter’s prayer to straighten
her record and rectify the terrible mistake.10
Petitioner, however, moved for the reconsideration of the
assailed Decision on the grounds that: (1) there was no
clerical spelling, typographical and other innocuous
errors in the marriage contract for it to fall within the
provisions of Rule 108 of the Rules of Court; and (2)
granting the cancellation of all the entries in the wife
portion of the alleged marriage contract is, in effect,
declaring the marriage void ab initio.11
In an Order dated August 25, 2009, the RTC denied
petitioner’s motion for reconsideration couched in this
wise:
WHEREFORE, the court hereby denies the Motion for
Reconsideration filed by the Republic of the Philippines.
284
Furnish copies of this order to the Office of the Solicitor
General, the petitioner’s counsel, and all concerned
government agencies.
SO ORDERED.12
Contrary to petitioner’s stand, the RTC held that it had
jurisdiction to take cognizance of cases for correction of
entries even on substantial errors under Rule 108 of the
Rules of Court being the appropriate adversary
proceeding required. Considering that respondent’s
identity was used by an unknown person to contract
marriage with a Korean national, it would not be feasible
for respondent to institute an action for declaration of
nullity of marriage since it is not one of the void
marriages under Articles 35 and 36 of the Family Code.13
Petitioner now comes before the Court in this Petition for
Review on Certiorari under Rule 45 of the Rules of Court
seeking the reversal of the assailed RTC Decision and
Order based on the following grounds:
I.
RULE 108 OF THE REVISED RULES OF COURT APPLIES
ONLY WHEN THERE ARE ERRORS IN THE ENTRIES
SOUGHT TO BE CANCELLED OR CORRECTED.
II.
GRANTING THE CANCELLATION OF "ALL THE ENTRIES IN
THE WIFE PORTION OF THE ALLEGED MARRIAGE
CONTRACT," IS IN EFFECT DECLARING THE MARRIAGE
VOID AB INITIO.14
Petitioner claims that there are no errors in the entries
sought to be cancelled or corrected, because the entries
made in the certificate of marriage are the ones provided
by the person who appeared and represented herself as
Merlinda L. Olaybar and are, in fact, the latter’s personal
circumstances.15 In directing the cancellation of the
entries in the wife portion of the certificate of marriage,
the RTC, in effect, declared the marriage null and void ab
initio.16 Thus, the petition instituted by respondent is
actually a petition for declaration of nullity of marriage in
the guise of a Rule 108 proceeding.17
We deny the petition.
At the outset, it is necessary to stress that a direct
recourse to this Court from the decisions and final orders
of the RTC may be taken where only questions of law are
raised or involved. There is a question of law when the
doubt arises as to what the law is on a certain state of
facts, which does not call for the examination of the
probative value of the evidence of the parties.18 Here, the
issue raised by petitioner is whether or not the
cancellation of entries in the marriage contract which, in
effect, nullifies the marriage may be undertaken in a Rule
108 proceeding. Verily, petitioner raised a pure question
of law.
Rule 108 of the Rules of Court sets forth the rules on
cancellation or correction of entries in the civil registry, to
wit:
SEC. 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
285
 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.
Rule 108 of the Rules of Court provides the procedure for
cancellation or correction of entries in the civil registry.
The proceedings may either be summary or adversary. If
the correction is clerical, then the procedure to be
adopted is summary. If the rectification affects the civil
status, citizenship or nationality of a party, it is deemed
substantial, and the procedure to be adopted is
adversary. Since the promulgation of Republic v.
Valencia19 in 1986, the Court has repeatedly ruled that
"even substantial errors in a civil registry may be
corrected through a petition filed under Rule 108, with
the true facts established and the parties aggrieved by
the error availing themselves of the appropriate
adversarial proceeding."20 An appropriate adversary suit
or proceeding is one where the trial court has conducted
proceedings where all relevant facts have been fully and
properly developed, where opposing counsel have been
given opportunity to demolish the opposite party’s case,
and where the evidence has been thoroughly weighed
and considered.21
It is true that in special proceedings, formal pleadings
and a hearing may be dispensed with, and the remedy
[is] granted upon mere application or motion. However, a
special proceeding is not always summary. The procedure
laid down in Rule 108 is not a summary proceeding per
se. It requires publication of the petition; it mandates the
inclusion as parties of all persons who may claim interest
which would be affected by the cancellation or
correction; it also requires the civil registrar and any
person in interest to file their opposition, if any; and it
states that although the court may make orders
expediting the proceedings, it is after hearing that the
court shall either dismiss the petition or issue an order
granting the same. Thus, as long as the procedural
requirements in Rule 108 are followed, it is the
appropriate adversary proceeding to effect substantial
corrections and changes in entries of the civil register.22
In this case, the entries made in the wife portion of the
certificate of marriage are admittedly the personal
circumstances of respondent. The latter, however, claims
that her signature was forged and she was not the one
who contracted marriage with the purported husband. In
other words, she claims that no such marriage was
entered into or if there was, she was not the one who
entered into such contract. It must be recalled that when
respondent tried to obtain a CENOMAR from the NSO, it
appeared that she was married to a certain Ye Son Sune.
She then sought the cancellation of entries in the wife
portion of the marriage certificate.
In filing the petition for correction of entry under Rule
108, respondent made the Local Civil Registrar of Cebu
City, as well as her alleged husband Ye Son Sune, as
parties-respondents. It is likewise undisputed that the
procedural requirements set forth in Rule 108 were
complied with. The Office of the Solicitor General was
likewise notified of the petition which in turn authorized
the Office of the City Prosecutor to participate in the
proceedings. More importantly, trial was conducted
where respondent herself, the stenographer of the court
where the alleged marriage was conducted, as well as a
document examiner, testified. Several documents were
also considered as evidence. With the testimonies and
other evidence presented, the trial court found that the
signature appearing in the subject marriage certificate
was different from respondent’s signature appearing in
some of her government issued identification
cards.23 The court thus made a categorical conclusion
that respondent’s signature in the marriage certificate
was not hers and, therefore, was forged. Clearly, it was
established that, as she claimed in her petition, no such
marriage was celebrated.
Indeed the Court made a pronouncement in the recent
case of Minoru Fujiki v. Maria Paz Galela Marinay, Shinichi
Maekara, Local Civil Registrar of Quezon City, and the
Administrator and Civil Registrar General of the National
Statistics Office24 that:
To be sure, a petition for correction or cancellation of an
entry in the civil registry cannot substitute for an action
to invalidate a marriage. A direct action is necessary to
prevent circumvention of the substantive and procedural
safeguards of marriage under the Family Code, A.M. No.
02-11-10-SC and other related laws. Among these
safeguards are the requirement of proving the limited
grounds for the dissolution of marriage, support
pendente lite of the spouses and children, the liquidation,
partition and distribution of the properties of the spouses
286
and the investigation of the public prosecutor to
determine collusion. A direct action for declaration of
nullity or annulment of marriage is also necessary to
prevent circumvention of the jurisdiction of the Family
Courts under the Family Courts Act of 1997 (Republic Act
No. 8369), as a petition for cancellation or correction of
entries in the civil registry may be filed in the Regional
Trial Court where the corresponding civil registry is
located. In other words, a Filipino citizen cannot dissolve
his marriage by the mere expedient of changing his entry
of marriage in the civil registry.

Aside from the certificate of marriage, no such evidence

was presented to show the existence of
marriage.1âwphi1 Rather, respondent showed by
overwhelming evidence that no marriage was entered
into and that she was not even aware of such existence.
The testimonial and documentary evidence clearly
established that the only "evidence" of marriage which is
the marriage certificate was a forgery. While we maintain
that Rule 108 cannot be availed of to determine the
validity of marriage, we cannot nullify the proceedings
before the trial court where all the parties had been given
the opportunity to contest the allegations of respondent;
the procedures were followed, and all the evidence of the
parties had already been admitted and examined.
Respondent indeed sought, not the nullification of
marriage as there was no marriage to speak of, but the
correction of the record of such marriage to reflect the
truth as set forth by the evidence. Otherwise stated, in
allowing the correction of the subject certificate of
marriage by cancelling the wife portion thereof, the trial
court did not, in any way, declare the marriage void as
there was no marriage to speak of.

WHEREFORE, premises considered, the petition is DENIED

for lack of merit. The Regional Trial Court Decision dated
May 5, 2009 and Order dated August 25, 2009 in SP.
Proc. No. 16519-CEB, are AFFIRMED.

SO ORDERED.

287