1

SECOND DIVISION
[G.R. No. 118387. October 11, 2001]
MARCELO LEE, ALBINA LEE-YOUNG, MARIANO LEE,
PABLO LEE, HELEN LEE, CATALINO K. LEE,
EUSEBIO
LEE,
EMMA
LEE,
and
TIU
CHUAN, petitioners,
vs. COURT OF APPEALS and HON. LORENZO B.
VENERACION and HON. JAIME T. HAMOY, in their
capacities as Presiding Judge of Branch 47, Regional
Trial Court of Manila and Branch 130, Regional Trial
Court of Kalookan City, respectively and RITA K. LEE,
LEONCIO LEE TEK SHENG in their personal
capacities and ROSA K. LEE-VANDERLEK, MELODY
K. LEE-CHIN, LUCIA K. LEE TEK SHENG, JULIAN
K. LEE, HENRY K. LEE, MARTIN K. LEE,
VICTORIANO K. LEE, NATIVIDAD K. LEEMIGUEL, and THOMAS K. LEE, represented by RITA
K. LEE, respondents.
DECISION
DE LEON, JR., J.:
This Petition for Review on Certiorari, with Prayer for the
Issuance of a Temporary Restraining Order and/or Writ of
Preliminary Injunction, seeks the reversal of the Decision [1] of the
Court of Appeals dated October 28, 1994 in CA-G.R. SP NO.
31786[2]. The assailed decision of the Court of Appeals upheld the
Orders issued by respondents Judges Hon. Lorenzo B.
Veneracion[3] and Hon. Jaime T. Hamoy[4] taking cognizance of two
(2) separate petitions filed by private respondents before their
respective salas for the cancellation and/or correction of entries in the
records of birth of petitioners pursuant to Rule 108 of the Revised
Rules of Court.

This is a story of two (2) sets of children sired by one and the
same man but begotten of two (2) different mothers. One set, the
private respondents herein, are the children of Lee Tek Sheng and his
lawful wife, Keh Shiok Cheng. The other set, the petitioners herein,
are allegedly children of Lee Tek Sheng and his concubine, Tiu
Chuan.
Rita K. Lee, Leoncio Lee Tek Sheng, Rosa K. Lee-Vanderlek,
Melody K. Lee-Chin, Lucia K. Lee Tek Sheng-Ong, Julian K. Lee,
Henry K. Lee, Martin K. Lee, Victoriano K. Lee, Natividad K. LeeMiguel and Thomas K. Lee (hereinafter referred to as private
respondents) filed two (2) separate petitions for the cancellation
and/or correction of entries in the records of birth of Marcelo Lee,
Albina Lee-Young, Mariano Lee, Pablo Lee, Helen Lee, Catalino K.
Lee, Eusebio Lee, and Emma Lee (hereinafter referred to as
petitioners). On December 2, 1992, the petition against all
petitioners, with the exception of Emma Lee, was filed before the
Regional Trial Court (RTC) of Manila and docketed as SP. PROC.
NO. 92-63692[5] and later assigned to Branch 47 presided over by
respondent Judge Lorenzo B. Veneracion. On February 3, 1993, a
similar petition against Emma Lee was filed before the RTC of
Kalookan and docketed as SP. PROC. NO. C-1674 [6] and assigned to
the sala of respondent Judge Jaime T. Hamoy of Branch 130.
Both petitions sought to cancel and/or correct the false and
erroneous entries in all pertinent records of birth of petitioners by
deleting and/or canceling therein the name of Keh Shiok Cheng as
their mother, and by substituting the same with the name Tiu Chuan,
who is allegedly the petitioners true birth mother.
The private respondents alleged in their petitions before the trial
courts that they are the legitimate children of spouses Lee Tek Sheng
and Keh Shiok Cheng who were legally married in China sometime
in 1931. Except for Rita K. Lee who was born and raised in China,
private respondents herein were all born and raised in the
Philippines.

2
Sometime in October, 1948, Lee Tek Sheng, facilitated the
arrival in the Philippines from China of a young girl named Tiu
Chuan. She was introduced by Lee Tek Sheng to his family as their
new housemaid but far from becoming their housemaid, Tiu Chuan
immediately became Lee Tek Shengs mistress. As a result of their
illicit relations, Tiu Chuan gave birth to petitioners.
Unknown to Keh Shiok Cheng and private respondents, every
time Tiu Chuan gave birth to each of the petitioners, their common
father, Lee Tek Sheng, falsified the entries in the records of birth of
petitioners by making it appear that petitioners mother was Keh
Shiok Cheng.
Since the birth of petitioners, it was Tiu Chuan who gave
maternal care and guidance to the petitioners. They all lived in the
same compound Keh Shiok Cheng and private respondents were
residing in. All was well, therefore, before private respondents
discovery of the dishonesty and fraud perpetrated by their father, Lee
Tek Sheng.
The tides turned after Keh Shiok Chengs demise on May 9,
1989. Lee Tek Sheng insisted that the names of all his children,
including those of petitioners, be included in the obituary notice of
Keh Shiok Chengs death that was to be published in the
newspapers. It was this seemingly irrational act that piqued private
respondents curiosity, if not suspicion.[7]
Acting on their suspicion, the private respondents requested the
National Bureau of Investigation (NBI) to conduct an investigation
into the matter. After investigation and verification of all pertinent
records, the NBI prepared a report that pointed out, among others,
the false entries in the records of birth of petitioners, specifically the
following:
1. As per Birth Certificate of MARCELO LEE (Annex F1), their father, LEE TEK SHENG made it appear that
he is the 12th child of Mrs. KEH SHIOK CHENG, but
upon investigation, it was found out that her Hospital
Records, the mother who gave birth to MARCELO LEE

had given birth for the 1st time, as per diagnosis of the
attending physician, Dr. R. LIM, it was GRAVIDA I,
PARA I which means first pregnancy, first live birth
delivery (refer to: MASTER PATIENTS RECORDS
SUMMARY Annex I). Also, the age of the mother
when she gave birth to MARCELO LEE as per record
was only 17 years old, when in fact and in truth, KEH
SHIOK CHENGs age was then already 38 years
old. The address used by their father in the Master
Patient record was also the same as the Birth Certificate
of MARCELO LEE (2425 Rizal Avenue, Manila). The
name of MARCELO LEE was recorded under Hospital
No. 221768, page 73.
2. As per Birth Certificate of ALBINA LEE (Annex F-2), it
was made to appear that ALBINA LEE was the third
child which is without any rationality, because the
3rd child of KEH SHIOK CHENG is MELODY LEE
TEK SHENG (Annex E-2). Note also, that the age of
the mother as per Hospital Records jump (sic) from 17
to 22 years old, but the only age gap of MARCELO
LEE and ALBINA LEE is only 2 years.
3. As per Birth Certificate of MARIANO LEE (Annex F3), it was made to appear that MARIANO LEE was the
5th child, but the truth is, KEH SHIOK CHENGs
5th child is LUCIA LEE TEK SHENG (Annex E-4). As
per Hospital Record, the age of KEH SHIOK CHENG
was only 23 years old, while the actual age of KEH
SHIOK CHENG, was then already 40 years old.
4. As per Birth Certificate of PABLO LEE (Annex F-4), it
was made to appear that PABLO LEE was the 16th child
of KEH SHIOK CHENG which is impossible to be
true, considering the fact that KEH SHIOK CHENG
have stopped conceiving after her 11th child. Also as per
Hospital Record, the age of the mother was omitted in
the records. If PABLO LEE is the 16th child of KEH

3
SHIOK CHENG, it would only mean that she have (sic)
given birth to her first born child at the age of 8 to 9
years, which is impossible to be true.
Based on the birth record of MARIANO LEE in 1953,
the recorded age of KEH SHIOK CHENG was 23 years
old. Two years after PABLO LEE was born in 1955, the
difference is only 2 years, so it is impossible for
PABLO LEE to be the 16 th child of KEH SHIOK
CHENG, as it will only mean that she have (sic) given
birth at that impossible age.
5. As per Birth Certificate of HELEN LEE (Annex F-5), it
was made to appear that she is the 6th child of KEH
SHIOK CHENG, but as per Birth Certificate of
JULIAN LEE (Annex E-5), he is the true 6 thchild of
KEH SHIOK CHENG. Per Hospital Record, KEH
SHIOK CHENG is only 28 years old, while KEH
SHIOK CHENGS true age at that time was 45 years
old.
6. EMMA LEE has no record in the hospital because, as
per complainants allegation, she was born at their
house, and was later admitted at Chinese General
Hospital.
7. As per Birth Certificate of CATALINO LEE (Annex F7), it was made to appear that he is the 14 th child of
KEH SHIOK CHENG, and that the age of KEH SHIOK
CHENG a.k.a. Mrs. LEE TEK SHENG, jumped from
28 years old at the birth of HELEN LEE on 23 August
1957 to 38 years old at the birth of CATALINO LEE on
22 April 1959.
8. As per Birth Certificate of EUSEBIO LEE, the alleged
last son of KEH SHIOK CHENG, the age of the mother
is 48 years old. However, as per Hospital Record, the
age of Mrs. LEE TEK SHENG, then was only 39 years
old. Considering the fact, that at the time of

MARCELOs birth on 11 May 1950. KEH SHIOK

CHENGs age is 38 years old and at the time of
EUSEBIOs birth, she is already 48 years old, it is
already impossible that she could have given birth to 8
children in a span of only 10 years at her age. As per
diagnosis, the alleged mother registered on EUSEBIOs
birth indicate that she had undergone CEASARIAN
SECTION, which Dr. RITA K. LEE said is not true.
Inviewoftheforegoingfacts,theNBIconcludedthat:
10.Inconclusion,asperChineseGeneralHospital
PatientsRecords,itisveryobviousthatthemotherof
these8childreniscertainlynotKEHSHIOK
CHENG,butamuchyoungerwoman,mostprobably
TIUCHUAN.Uponfurtherevaluationandanalysis
bytheseAgents,LEETEKSHENG,isinaquandary
infixingtheageofKEHSHIOKCHENGpossiblyto
conformwithhisgranddesignofmakinghis8
childrenastheirownlegitimatechildren,
consequentlyelevatingthestatusofhis2ndfamilyand
securetheirfuture.Thedoctorlamentedthatthis
complaintwouldnothavebeennecessaryhadnotthe
fatherandhis2ndfamilykeptoninsistingthatthe8
childrenarethelegitimatechildrenofKEHSHIOK
CHENG.[8]
It was this report that prompted private respondents to file the
petitions for cancellation and/or correction of entries in petitioners
records of birth with the lower courts.
The petitioners filed a motion to dismiss both petitions - SP.
PROC. NO. 92-63692 and SP. PROC. NO. C-1674 - on the grounds
that: (1) resort to Rule 108 is improper where the ultimate objective
is to assail the legitimacy and filiation of petitioners; (2) the petition,

4
which is essentially an action to impugn legitimacy was filed
prematurely; and (3) the action to impugn has already prescribed. [9]
On February 12, 1993, respondent Judge Veneracion denied the
motion to dismiss SP. PROC. NO. 92-63692 for failure of the herein
petitioners (defendants in the lower court) to appear at the hearing of
the said motion.[10] Then on February 17, 1993, Judge Veneracion
issued an Order, the pertinent portion of which, reads as follows:
Findingthepetitiontobesufficientinformandsubstance,thesame
isherebygivenduecourse.Letthispetitionbesetforhearingon
March29,1993at8:30inthemorningbeforethisCourtlocatedat
the5thFlooroftheCityHallofManila.
Noticeisherebygiventhatanyonewhohasanyobjectiontothe
petitionshouldfileonorbeforethedateofhearinghisopposition
theretowithastatementofthegroundstherefor.
LetacopyofthisOrderbepublished,attheexpenseofthe
petitioners,onceaweekforthree(3)consecutiveweeksina
newspaperofgeneralcirculationinthePhilippines.
LetcopiesoftheverifiedpetitionwithitsannexesandofthisOrder
beservedupontheOfficeoftheSolicitorGeneral,andthe
respondents,andbepostedontheBulletinBoardofthisCourt,also
attheexpenseofthepetitioners.
SOORDERED.

[11]

On the other hand, respondent Judge Hamoy issued an Order

dated April 15, 1993 taking cognizance of SP. PROC. No. C-1674, to
wit:
Itappearingfromthedocumentaryevidencepresentedandmarked
bythepetitionersthattheOrderoftheCourtsettingthecasefor

hearingwaspublishedinMediaUpdateonceaweekforthree(3)
consecutiveweeks,thatisonFebruary20,27,andMarch6,1993as
evidencedbytheAffidavitofPublicationandtheclippingsattached
totheaffidavit,andbythecopiesoftheMediaUpdatepublishedon
theaforementioneddates;further,copyoftheordersettingthecase
forhearingtogetherwithcopyofthepetitionhadbeenservedupon
theSolicitorGeneral,CityProsecutorofKalookanCity,Civil
RegistrarofKalookanCityandtheprivaterespondents,theCourt
holdsthatthepetitionershavecompliedwiththejurisdictional
requirementsfortheCourttotakecognizanceofthiscase.
x x x x x x x x x.
SOORDERED.[12]
Petitioners attempts at seeking a reconsideration of the abovementioned orders of Judge Veneracion and Judge Hamoy failed,
hence their recourse to the Court of Appeals via a Petition for
Certiorari and Prohibition with Application for the Issuance of a
Temporary Restraining Order and/or Writ of Preliminary
Injunction. Petitioners averred that respondents judges had acted
with grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing the assailed orders allowing the petitions for
the cancellation and/or correction of entries in petitioners records of
birth to prosper in the lower courts.
In their petition before the Court of Appeals, the petitioners
raised the following arguments: (1) Rule 108 is inappropriate for
impugning the legitimacy and filiation of children; (2) Respondents
judges are sanctioning a collateral attack against the filiation and
legitimacy of children; (3) Respondents judges are allowing private
respondents to impugn the legitimacy and filiation of their siblings
despite the fact that their undisputed common father is still alive; (4)
Respondents judges are entertaining petitions which are already
time-barred; and (5) The petitions below are part of a forumshopping spree.[13]

5
Finding no merit in petitioners arguments, the Court of Appeals
dismissed their petition in a Decision dated October 28, 1994.
[14]
Petitioners Motion for Reconsideration of the said decision was
also denied by the Court of Appeals in a Resolution dated December
19, 1994.[15]
Hence, this petition.
I. Petitioners contend that resort to Rule 108 of the Revised
Rules of Court is improper since private respondents seek to have the
entry for the name of petitioners mother changed from Keh Shiok
Cheng to Tiu Chuan who is a completely different person. What
private respondents therefore seek is not merely a correction in name
but a declaration that petitioners were not born of Lee Tek Shengs
legitimate wife, Keh Shiok Cheng, but of his mistress, Tiu Chuan, in
effect a bastardization of petitioners. [16] Petitioners thus label private
respondents suits before the lower courts as a collateral attack against
their legitimacy in the guise of a Rule 108 proceeding.
Debunking petitioners above contention, the Court of Appeals
observed:
x x x x x x x x x.
Ascorrectlypointedoutbytheprivaterespondentsintheircomment
xxx,theproceedingsaresimplyaimedatestablishingaparticular
fact,statusand/orright.Stateddifferently,thethrustofsaid
proceedingswastoestablishthefactualtruthregardingthe
occurrenceofcertaineventswhichcreatedoraffectedthestatusof
personsand/orotherwisedeprivedsaidpersonsofrights. [17]
x x x x x x x x x.
It is precisely the province of a special proceeding such as the
one outlined under Rule 108 of the Revised Rules of Court to
establish the status or right of a party, or a particular fact. [18] The
petitions filed by private respondents for the correction of entries in
the petitioners records of birth were intended to establish that for

physical and/or biological reasons it was impossible for Keh Shiok

Cheng to have conceived and given birth to the petitioners as shown
in their birth records. Contrary to petitioners contention that the
petitions before the lower courts were actually actions to impugn
legitimacy, the prayer therein is not to declare that petitioners are
illegitimate children of Keh Shiok Cheng, but to establish that the
former are not the latters children. There is nothing to impugn as
there is no blood relation at all between Keh Shiok Cheng and
petitioners.[19]
Further sanctioning private respondents resort to Rule 108, the
Court of Appeals adverted to our ruling in the leading case
of Republic vs. Valencia[20] where we affirmed the decision of Branch
XI of the then Court of First Instance (CFI) of Cebu City ordering
the correction in the nationality and civil status of petitioners minor
children as stated in their records of birth from Chinese to Filipino,
and legitimate to illegitimate, respectively. Although recognizing that
the changes or corrections sought to be effected are not mere clerical
errors of a harmless or innocuous nature, this Court, sitting en banc,
held therein that even substantial errors in a civil register may be
corrected and the true facts established provided the parties
aggrieved by the error avail themselves of the appropriate
adversary proceeding.[21] In the said case, we also laid down the
rule that a proceeding for correction and/or cancellation of entries in
the civil register under Rule 108 ceases to be summary in nature and
takes on the characteristics of an appropriate adversary
proceeding when all the procedural requirements under Rule 108 are
complied with. Thus we held:
Providedthetrialcourthasconductedproceedingswhereallrelevant
factshavebeenfullyandproperlydeveloped,whereopposing
counselhavebeengivenopportunitytodemolishtheoppositepartys
case,andwheretheevidencehasbeenthoroughlyweighedand
considered,thesuitorproceedingisappropriate.
Thepertinentsectionsofrule108provide:

6
SEC.3.Parties.Whencancellationorcorrectionofanentryinthe
civilregisterissought,thecivilregistrarandallpersonswhohaveor
claimanyinterestwhichwouldbeaffectedtherebyshallbemade
partiestotheproceeding.

Registraroranypersonhavingorclaiminganyinterestintheentries
soughttobecancelledand/orcorrectedandtheoppositionisactively
prosecuted,theproceedingsthereonbecomeadversaryproceedings.
[22]
(Underscoringsupplied.)

SEC.4.Noticeandpublication.Uponthefilingofthepetition,the
courtshall,byanorder,fixthetimeandplaceforthehearingofthe
same,andcausereasonablenoticethereoftobegiventothepersons
namedinthepetition.Thecourtshallalsocausetheordertobe
publishedonceinaweekforthree(3)consecutiveweeksina
newspaperofgeneralcirculationintheprovince.

To the mind of the Court of Appeals, the proceedings taken in

both petitions for cancellation and/or correction of entries in the
records of birth of petitioners in the lower courts are appropriate
adversary proceedings.

SEC.5.Opposition.Thecivilregistrarandanypersonhavingor
claiminganyinterestundertheentrywhosecancellationor
correctionissoughtmay,withinfifteen(15)daysfromnoticeofthe
petition,orfromthelastdateofpublicationofsuchnotice,filehis
oppositionthereto.
Thus,thepersonswhomustbemadepartiestoaproceeding
concerningthecancellationorcorrectionofanentryinthecivil
registerare(1)thecivilregistrar,and(2)allpersonswhohaveor
claimanyinterestwhichwouldbeaffectedthereby.Uponthefiling
ofthepetition,itbecomesthedutyofthecourtto(1)issueanorder
fixingthetimeandplaceforthehearingofthepetition,and(2)cause
theorderforhearingtobepublishedonceaweekforthree(3)
consecutiveweeksinanewspaperofgeneralcirculationinthe
province.Thefollowingarelikewiseentitledtoopposethepetition:
(1)thecivilregistrar,and(2)anypersonhavingorclaimingany
interestundertheentrywhosecancellationorcorrectionissought.
Ifalltheseproceduralrequirementshavebeenfollowed,apetition
forcorrectionand/orcancellationofentriesintherecordofbirth
eveniffiledandconductedunderRule108oftheRevisedRulesof
Courtcannolongerbedescribedassummary.Therecanbenodoubt
thatwhenanoppositiontothepetitionisfiledeitherbytheCivil

We agree. As correctly observed by the Court of Appeals:

Intheinstantcase,apetitionforcancellationand/orcorrectionof
entriesofbirthwasfiledbyprivaterespondentsandpursuanttothe
orderoftheRTCManila,datedFebruary17,1993,acopyofthe
ordersettingthecaseforhearingwasorderedpublishedonceaweek
forthree(3)consecutiveweeksinanewspaperofgeneralcirculation
inthePhilippines.IntheRTCKalookan,therewasanactual
publicationoftheordersettingthecaseforhearinginMediaUpdate
onceaweekforthree(3)consecutiveweeks.Inbothcasesnoticesof
theorderswereorderedservedupontheSolicitorGeneral,theCivil
RegistrarsofManilaandKalookananduponthepetitioners
herein.BothorderssetthecaseforhearinganddirectedtheCivil
Registrarsandtheotherrespondentsinthecasebelowtofiletheir
oppositionstothesaidpetitions.Amotiontodismisswas
consequentlyfiledbyhereinpetitionersMarcelo,Mariano,Pablo,
Helen,CatalinoandEusebio,allsurnamedLee,andAlbinaLee
YoungintheRTCManila,andanoppositionwasfiledbyEmma
LeeintheRTCKalookan.
Inviewoftheforegoing,weholdthatthepetitionsfiledbythe
privaterespondentsinthecourtsbelowbywayofaspecial
proceedingforcancellationand/orcorrectionofentriesinthecivil
registerswiththerequisiteparties,noticesandpublicationscould

7
verywellberegardedasthatpropersuitorappropriateaction.
[23]
(Underscoringsupplied.)
The petitioners assert, however, that making the proceedings
adversarial does not give trial courts the license to go beyond the
ambit of Rule 108 which is limited to those corrections contemplated
by Article 412 of the New Civil Code or mere clerical errors of a
harmless or innocuous nature.[24] The petitioners point to the case
of Labayo-Rowe vs. Republic,[25] which is of a later date
than Republic vs. Valencia,[26] where this Court reverted to the
doctrine laid down in earlier cases, [27] starting with Ty Kong Tin vs.
Republic,[28] prohibiting the extension of the application of Rule 108
beyond innocuous or harmless changes or corrections. Petitioners
contend that as held in Go, et al. vs. Civil Registrar,[29] allowing
substantial changes under Rule 108 would render the said rule
unconstitutional as the same would have the effect of increasing or
modifying substantive rights.
At the outset, it should be pointed out that in the cited case
of Labayo-Rowe vs. Republic,[30] the reason we declared null and
void the portion of the lower courts order directing the change of
Labayo-Rowes civil status and the filiation of one of her children as
appearing in the latters record of birth, is not because Rule 108 was
inappropriate to effect such changes, but because Labayo-Rowes
petition before the lower court failed to implead all indispensable
parties to the case.
We explained in this wise:
xxx.Anappropriateproceedingisrequiredwhereinallthe
indispensablepartiesshouldbemadepartiestothecaseasrequired
underSection3,Rule108oftheRevisedRulesofCourt.
InthecasebeforeUs,sinceonlytheOfficeoftheSolicitorGeneral
wasnotifiedthroughtheOfficeoftheProvincialFiscal,representing
theRepublicofthePhilippinesastheonlyrespondent,the
proceedingstaken,whichissummaryinnature,isshortofwhatis

requiredincaseswheresubstantialalterationsaresought.Asidefrom
theOfficeoftheSolicitorGeneral,allotherindispensableparties
shouldhavebeenmaderespondents.Theyincludenotonlythe
declaredfatherofthechildbutthechildaswell,togetherwiththe
paternalgrandparents,ifany,astheirhereditaryrightswouldbe
adverselyaffectedthereby.Allotherpersonswhomaybeaffectedby
thechangeshouldbenotifiedorrepresentedxxx.
x x x x x x x x x.
TherightofthechildVictoriatoinheritfromherparentswouldbe
substantiallyimpairedifherstatuswouldbechangedfromlegitimate
toillegitimate.Moreover,shewouldbeexposedtohumiliationand
embarrassmentresultingfromthestigmaofanillegitimatefiliation
thatshewillbearthereafter.Thefactthatthenoticeofhearingofthe
petitionwaspublishedinanewspaperofgeneralcirculationand
noticethereofwasservedupontheStatewillnotchangethenature
oftheproceedingstaken.Rule108,likealltheotherprovisionsof
theRulesofCourt,waspromulgatedbytheSupremeCourtpursuant
toitsrulemakingauthorityunderSection13,ArticleVIIIofthe
1973Constitution,whichdirectsthatsuchrulesshallnotdiminish,
increaseormodifysubstantiverights.IfRule108weretobe
extendedbeyondinnocuousorharmlesschangesorcorrectionsof
errorswhicharevisibletotheeyeorobvioustotheunderstanding,
soastocomprehendsubstantialandcontroversialalterations
concerningcitizenship,legitimacyofpaternityorfiliation,or
legitimacyofmarriage,withoutobservingtheproperproceedingsas
earliermentioned,saidrulewouldtherebybecomean
unconstitutionalexercisewhichwouldtendtoincreaseormodify
substantiverights.ThissituationisnotcontemplatedunderArticle
412oftheCivilCode.[31](Underscoringsupplied).
Far from petitioners theory, this Courts ruling in Labayo-Rowe
vs. Republic[32] does not exclude recourse to Rule 108 of the Revised
Rules of Court to effect substantial changes or corrections in entries

8
of the civil register. The only requisite is that the proceedings under
Rule 108 be an appropriate adversary proceeding as contradistinguished from a summary proceeding. Thus:
Ifthepurposeofthepetition[forcancellationand/orcorrectionof
entriesinthecivilregister]ismerelytocorrecttheclericalerrors
whicharevisibletotheeyeorobvioustotheunderstanding,the
courtmay,underasummaryprocedure,issueanorderforthe
correctionofamistake.However,asrepeatedlyconstrued,changes
whichmayaffectthecivilstatusfromlegitimatetoillegitimate,as
wellassex,aresubstantialandcontroversialalterationswhichcan
onlybeallowedafterappropriateadversaryproceedingsdepending
uponthenatureoftheissuesinvolved.Changeswhichaffectthecivil
statusorcitizenshipofapartyaresubstantialincharacterandshould
bethreshedoutinaproperactiondependinguponthenatureofthe
issuesincontroversy,andwhereinallthepartieswhomaybe
affectedbytheentriesarenotifiedorrepresentedandevidenceis
submittedtoprovetheallegationsofthecomplaint,andprooftothe
contraryadmitted.xxx.[33](Underscoringsupplied.)
It is true that in special proceedings formal pleadings and a
hearing may be dispensed with, and the remedy granted upon mere
application or motion. But this is not always the case, as when the
statute expressly provides.[34] Hence, a special proceeding is not
always summary. One only has to take a look at the procedure
outlined in Rule 108 to see that what is contemplated therein is not a
summary proceeding per se. Rule 108 requires publication of the
petition three (3) times, i.e., once a week for three (3) consecutive
weeks (Sec. 4). The Rule also requires inclusion as parties of all
persons who claim any interest which would be affected by the
cancellation or correction (Sec. 3). The civil registrar and any person
in interest are also required to file their opposition, if any, within
fifteen (15) days from notice of the petition, or from the last date of
publication of such notice (Sec. 5). Last, but not the least, 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 (Sec. 7).
Thus, we find no reason to depart from our ruling in Republic
vs. Valencia,[35] that Rule 108, when all the procedural requirements
thereunder are followed, is the appropriate adversary
proceeding to effect substantial corrections and changes in entries of
the civil register. It must be conceded, however, that even
after Republic vs. Valencia[36] there continues to be a seesawing of
opinion on the issue of whether or not substantial corrections in
entries of the civil register may be effected by means of Rule 108 in
relation to Article 412 of the New Civil Code. The more recent cases
of Leonor vs. Court of Appeals[37] and Republic vs. Labrador[38] do
seem to signal a reversion to the Ty Kong Tin ruling which delimited
the scope of application of Article 412 to clerical or typographical
errors in entries of the civil register.
In Republic vs. Labrador, the Court held that Rule 108 cannot
be used to modify, alter or increase substantive rights, such as those
involving the legitimacy or illegitimacy of a child. We ruled thus:
ThisissuehasbeenresolvedinLeonorvs.CourtofAppeals.Inthat
case,RespondentMauricioLeonorfiledapetitionbeforethetrial
courtseekingthecancellationoftheregistrationofhismarriageto
PetitionerVirginiaLeonor.Healleged,amongothers,thenullityof
theirlegalvowsarisingfromthenonobservanceofthelegal
requirementsforavalidmarriage.Indebunkingthetrialcourts
rulinggrantingsuchpetition,theCourtheldasfollows:
Onitsface,theRulewouldappeartoauthorizethecancellationof
anyentryregardingmarriagesinthecivilregistryforanyreasonby
themerefilingofaverifiedpetitionforthepurpose.However,itis
notassimpleasitlooks.Doctrinally,theonlyerrorsthatcanbe
canceledorcorrectedunderthisRulearetypographicalorclerical
errors,notmaterialorsubstantialoneslikethevalidityornullityofa
marriage.Aclericalerrorisonewhichisvisibletotheeyesor

9
obvioustotheunderstanding;errormadebyaclerkoratranscriber;
amistakeincopyingorwriting(Blackvs.Republic,L10869,Nov.
28,1958);orsomeharmlessandinnocuouschangesuchasa
correctionofnamethatisclearlymisspelledorofamisstatementof
theoccupationoftheparent(Ansaladavs.Republic,L10226,Feb.
14,1958).
Wheretheeffectofacorrectioninacivilregistrywillchangethe
civilstatusofpetitionerandherchildrenfromlegitimateto
illegitimate,thesamecannotbegrantedexceptonlyinan
adversarialxxx.
Clearlyandunequivocally,thesummaryprocedureunderRule108,
andforthatmatterunderArticle412oftheCivilCodecannotbe
usedbyMauriciotochangehisandVirginiascivilstatusfrom
marriedtosingleandoftheirthreechildrenfromlegitimateto
illegitimate.xxx
Thus,wheretheeffectofacorrectionofanentryinacivilregistry
willchangethestatusofapersonfromlegitimatetoillegitimate,as
inSarahZitascase,thesamecannotbegrantedinsummary
proceedings.[39]
It is, therefore, high time that we put an end to the confusion
sown by pronouncements seemingly in conflict with each other, and
perhaps, in the process, stem the continuing influx of cases raising
the same substantial issue.
The basis for the pronouncement that extending the scope of
Rule 108 to substantial corrections is unconstitutional is embodied in
the early case of Ty Kong Tin vs. Republic[40] that first delineated the
extent or scope of the matters that may be changed or corrected
pursuant to Article 412 of the New Civil Code. The Supreme Court
ruled in this case that:

xxx.Afteramaturedeliberation,theopinionwasreachedthatwhat
wascontemplatedthereinaremerecorrectionsofmistakesthatare
clericalinnatureandnotthosethatmayaffectthecivilstatusorthe
nationalityorcitizenshipofthepersonsinvolved.Ifthepurposeof
thepetitionismerelyaclericalerrorthenthecourtmayissuean
orderinorderthattheerrorormistakemaybecorrected.Ifitrefers
toasubstantialchange,whichaffectsthestatusorcitizenshipofa
party,themattershouldbethreshedoutinaproperactiondepending
uponthenatureoftheissueinvolved.Suchactioncanbefoundat
randominoursubstantiveandremediallawstheimplementationof
whichwillnaturallydependuponthefactorsandcircumstancesthat
mightariseaffectingtheinterestedparties.Thisopinionispredicated
uponthetheorythattheprocedurecontemplatedinarticle412is
summaryinnaturewhichcannotcovercasesinvolvingcontroversial
issues.[41]
This doctrine was taken a step further in the case of Chua Wee,
et al. vs. Republic[42] where the Court said that:
FromthetimetheNewCivilCodetookeffectonAugust30,1950
untilthepromulgationoftheRevisedRulesofCourtonJanuary1,
1964,therewasnolawnorruleofcourtprescribingtheprocedureto
securejudicialauthorizationtoeffectthedesiredinnocuous
rectificationsoralterationsinthecivilregisterpursuanttoArticle
412oftheNewCivilCode.Rule108oftheRevisedRulesofCourt
nowprovidesforsuchaprocedurewhichshouldbelimitedsolelyto
theimplementationofArticle412,thesubstantivelawonthematter
ofcorrectingentriesinthecivilregister.Rule108,likealltheother
provisionsoftheRulesofCourt,waspromulgatedbytheSupreme
CourtpursuanttoitsrulemakingauthorityunderSection13ofArt.
VIIIoftheConstitution,whichdirectsthatsuchrulesofcourtshall
notdiminishorincreaseormodifysubstantiverights.IfRule108
weretobeextendedbeyondinnocuousorharmlesschangesor
correctionsoferrorswhicharevisibletotheeyeorobvioustothe
understanding,soastocomprehendsubstantialandcontroversial

10
alterationsconcerningcitizenship,legitimacyofpaternityorfiliation,
orlegitimacyofmarriage,saidRule108wouldtherebybecome
unconstitutionalforitwouldbeincreasingormodifyingsubstantive
rights,whichchangesarenotauthorizedunderArticle412ofthe
NewCivilCode.[43](Underscoringsupplied).
We venture to say now that the above pronouncements proceed
from a wrong premise, that is, the interpretation that Article 412
pertains only to clerical errors of a harmless or innocuous nature,
effectively excluding from its domain, and the scope of its
implementing rule, substantial changes that may affect nationality,
status, filiation and the like. Why the limited scope of Article 412?
Unfortunately, Ty Kong Tin does not satisfactorily answer this
question except to opine that the procedure contemplated in Article
412 is summary in nature and cannot, therefore, cover cases
involving controversial issues. Subsequent cases have merely echoed
the Ty Kong Tin doctrine without, however, shedding light on the
matter.
The flaw in Ty Kong Tin lies in its theory that Article 412
contemplates a summary procedure.
First of all, Article 412 is a substantive law that provides as
follows:
Noentryinacivilregistershallbechangedorcorrected,withouta
judicialorder.
It does not provide for a specific procedure of law to be
followed except to say that the corrections or changes must be
effected by judicial order. As such, it cannot be gleaned therefrom
that the procedure contemplated for obtaining such judicial order is
summary in nature.
Secondly, it is important to note that Article 412 uses both the
terms corrected and changed. In its ordinary sense, to correct means
to make or set right; to remove the faults or errors from [44]while to

change means to replace something with something else of the same

kind or with something that serves as a substitute. [45] The provision
neither qualifies as to the kind of entry to be changed or corrected
nor does it distinguish on the basis of the effect that the correction or
change may have. Hence, it is proper to conclude that all entries in
the civil register may be changed or corrected under Article
412. What are the entries in the civil register? We need not go further
than Articles 407 and 408 of the same title to find the answer.
Art.407.Acts,eventsandjudicialdecreesconcerningthecivilstatus
ofpersonsshallberecordedinthecivilregister.
Art.408.Thefollowingshallbeenteredinthecivilregister:
(1)Births;(2)marriages;(3)deaths;(4)legalseparations;(5)
annulmentsofmarriage;(6)judgmentsdeclaringmarriagesvoid
fromthebeginning;(7)legitimations;(8)adoptions;(9)
acknowledgmentsofnaturalchildren;(10)naturalization;(11)loss,
or(12)recoveryofcitizenship;(13)civilinterdiction;(14)judicial
determinationoffiliation;(15)voluntaryemancipationofaminor;
and(16)changesofname.
It is beyond doubt that the specific matters covered by the
preceding provisions include not only status but also
nationality. Therefore, the Ty Kong Tin pronouncement that Article
412 does not contemplate matters that may affect civil status,
nationality or citizenship is erroneous. This interpretation has the
effect of isolating Article 412 from the rest of the articles in Title
XVI, Book I of the New Civil Code, in clear contravention of the
rule of statutory construction that a statute must always be construed
as a whole such that the particular meaning to be attached to any
word or phrase is ascertained from the context and the nature of the
subject treated.[46]

11
Thirdly, Republic Act No. 9048[47] which was passed by
Congress on February 8, 2001 substantially amended Article 412 of
the New Civil Code, to wit:
SECTION1.AuthoritytoCorrectClericalorTypographicalError
andChangeofFirstNameorNickname.Noentryinacivilregister
shallbechangedorcorrectedwithoutajudicialorder,exceptfor
clericalortypographicalerrorsandchangeoffirstnameornickname
whichcanbecorrectedorchangedbytheconcernedcityor
municipalcivilregistrarorconsulgeneralinaccordancewiththe
provisionsofthisActanditsimplementingrulesandregulations.
The above law speaks clearly. Clerical or typographical errors in
entries of the civil register are now to be corrected and changed
without need of a judicial order and by the city or municipal civil
registrar or consul general. The obvious effect is to remove from the
ambit of Rule 108 the correction or changing of such errors in entries
of the civil register. Hence, what is left for the scope of operation of
Rule 108 are substantial changes and corrections in entries of the
civil register. This is precisely the opposite of what Ty Kong Tin and
other cases of its genre had said, perhaps another indication that it
was not sound doctrine after all.
It may be very well said that Republic Act No. 9048 is Congress
response to the confusion wrought by the failure to delineate as to
what exactly is that so-called summary procedure for changes or
corrections of a harmless or innocuous nature as distinguished from
that appropriate adversary proceeding for changes or corrections
of a substantial kind. For we must admit that though we have
constantly referred to an appropriate adversary proceeding, we
have failed to categorically state just what that procedure
is. Republic Act No. 9048 now embodies thatsummary
procedure while Rule 108 is that appropriate adversary
proceeding. Be that as it may, the case at bar cannot be decided on
the basis of Republic Act No. 9048 which has prospective
application. Hence, the necessity for the preceding treatise.

II. The petitioners contend that the private respondents have no

cause of action to bring the cases below as Article 171 of the Family
Code allows the heirs of the father to bring an action to impugn the
legitimacy of his children only after his death. [48]
Article 171 provides:
Theheirsofthehusbandmayimpugnthefiliationofthechildwithin
theperiodprescribedintheprecedingarticleonlyinthefollowing
cases:
(1)Ifthehusbandshoulddiebeforetheexpirationoftheperiodfixed
forbringingthisaction;
(2)Ifheshoulddieafterthefilingofthecomplaint,withouthaving
desistedtherefrom;or
(3)Ifthechildwasbornafterthedeathofthehusband.
Petitioners contention is without merit.
In the recent case of Babiera vs. Catotal,[49] we upheld the
decision of the Court of Appeals that affirmed the judgment of the
RTC of Lanao del Norte declaring the birth certificate of one Teofista
Guinto as null and void ab initio, and ordering the Local Civil
Registrar of Iligan City to cancel the same from the Registry of Live
Births. We ruled therein that private respondent Presentacion Catotal,
child of spouses Eugenio Babiera and Hermogena Cariosa, had the
requisite standing to initiate an action to cancel the entry of birth of
Teofista Babiera, another alleged child of the same spouses because
she is the one who stands to be benefited or injured by the judgment
in the suit, or the party entitled to the avails of the suit. [50]
We likewise held therein that:
xxxArticle171oftheFamilyCodeisnotapplicabletothepresent
case.Aclosereadingoftheprovisionshowsthatitappliesto

12
instancesinwhichthefatherimpugnsthelegitimacyofhiswifes
child.Theprovision,however,presupposesthatthechildwasthe
undisputedoffspringofthemother.Thepresentcaseallegesand
showsthatHermogenadidnotgivebirthtopetitioner.Inother
words,theprayerthereinisnottodeclarethatpetitionerisan
illegitimatechildofHermogena,buttoestablishthattheformeris
notthelatterschildatall.xxx.[51]
Similarly, we
Appeals[52] that:

ruled

in Benitez-Badua

vs.

Court

notonewheretheheirsofthelateVicentearecontendingthat
petitionerisnothischildbyIsabel.Rather,theirclearsubmissionis
thatpetitionerwasnotborntoVicenteandIsabel.Ourrulingin
CabatbatLimvs.IntermediateAppellateCourt,166SCRA451,457
citedintheimpugneddecisionisapropos,viz:

of

PetitionersinsistenceontheapplicabilityofArticles164,166,170
and171oftheFamilyCodetothecaseatbenchcannotbesustained.
xxx.
x x x x x x x x x.
Acarefulreadingoftheabovearticleswillshowthattheydonot
contemplateasituation,likeintheinstantcase,whereachildis
allegednotbethechildofnatureorbiologicalchildofacertain
couple.Rather,thesearticlesgovernasituationwhereahusband(or
hisheirs)deniesashisownachildofhiswife.Thus,underArticle
166,itisthehusbandwhocanimpugnthelegitimacyofsaidchildby
proving:(1)itwasphysicallyimpossibleforhimtohavesexual
intercourse,withhiswifewithinthefirst120daysofthe300days
whichimmediatelyprecededthebirthofthechild;(2)thatfor
biologicalorotherscientificreasons,thechildcouldnothavebeen
hischild;(3)thatincaseofchildrenconceivedthroughartificial
insemination,thewrittenauthorizationorratificationbyeitherparent
wasobtainedthroughmistake,fraud,violence,intimidationorundue
influence.Articles170and171reinforcethisreadingastheyspeak
oftheprescriptiveperiodwithinwhichthehusbandoranyofhis
heirsshouldfiletheactionimpugningthelegitimacyofsaid
child.Doubtlessthen,theappellatecourtdidnoterrwhenitrefused
toapplythesearticlestothecaseatbench.Forthecaseatbenchis

PetitionersrecoursetoArticle263oftheNewCivilCode[nowArt.
170oftheFamilyCode]isnotwelltaken.Thislegalprovisionrefers
toanactiontoimpugnlegitimacy.Itisinapplicabletothiscase
becausethisisnotanactiontoimpugnthelegitimacyofachild,but
anactionoftheprivaterespondentstoclaimtheirinheritanceaslegal
heirsoftheirchildlessdeceasedaunt.Theydonotclaimthat
petitionerVioletaCabatbatLimisanillegitimatechildofthe
deceased,butthatsheisnotthedecedentschildatall.Beingneither
legallyadoptedchild,noranacknowledgednaturalchild,norachild
bylegalfictionofEsperanzaCabatbat,Violetaisnotalegalheirof
thedeceased.[53]
III. Petitioners claim that private respondents cause of action
had already prescribed as more than five (5) years had lapsed
between the registration of the latest birth among the petitioners in
1960 and the filing of the actions in December of 1992 and February
of 1993.[54]
We disagree. As correctly pointed out by the Court of Appeals,
inasmuch as no law or rule specifically prescribes a fixed time for
filing the special proceeding under Rule 108 in relation to Article
412 of the New Civil Code, it is the following provision of the New
Civil Code that applies:
Art.1149.AllotheractionswhoseperiodsarenotfixedinthisCode
orinotherlawsmustbebroughtwithinfiveyearsfromthetimethe
rightofactionaccrues.
The right of action accrues when there exists a cause of action,
which consists of three (3) elements, namely: a) a right in favor of

13
the plaintiff by whatever means and under whatever law it arises or is
created; b) an obligation on the part of the defendant to respect such
right; and c) an act or omission on the part of such defendant
violative of the right of the plaintiff. It is only when the last element
occurs or takes place that it can be said in law that a cause of action
has arisen.[55]
It is indubitable that private respondents have a cause of
action. The last element of their cause of action, that is, the act of
their father in falsifying the entries in petitioners birth records,
occurred more than thirty (30) years ago. Strictly speaking, it was
upon this occurrence that private respondents right of action or right
to sue accrued. However, we must take into account the fact that it
was only sometime in 1989 that private respondents discovered that
they in fact had a cause of action against petitioners who continue to
use said falsified birth records.
Hence, it would result in manifest injustice if we were to
deprive private respondents of their right to establish the truth about
a fact, in this case, petitioners true mother, and their real status,
simply because they had discovered the dishonesty perpetrated upon
them by their common father at a much later date. This is especially
true in the case of private respondents who, as their fathers legitimate
children, did not have any reason to suspect that he would commit
such deception against them and deprive them of their sole right to
inherit from their mothers (Keh Shiok Chengs) estate. It was only
sometime in 1989 that private respondents suspicions were aroused
and confirmed. From that time until 1992 and 1993, less than five (5)
years had lapsed.
Petitioners would have us reckon the five-year prescriptive
period from the date of the registration of the last birth among the
petitioners-siblings in 1960, and not from the date private
respondents had discovered the false entries in petitioners birth
records in 1989. Petitioners base their position on the fact that birth
records are public documents, hence, the period of prescription for
the right of action available to the private respondents started to run

from the time of the registration of their birth certificates in the Civil
Registry.
We cannot agree with petitioners thinking on that point.
It is true that the books making up the Civil Register and all
documents relating thereto are public documents and shall be prima
facie evidence of the facts therein contained. [56] Petitioners liken their
birth records to land titles, public documents that serve as notice to
the whole world. Unfortunately for the petitioners, this analogy does
not hold water. Unlike a title to a parcel of land, a persons parentage
cannot be acquired by prescription. One is either born of a particular
mother or not. It is that simple.
IV. Finally, petitioners accuse private respondents of forum
shopping. They enumerate the other actions filed by private
respondents against them prior to the filing of their Rule 108
petitions in the lower courts, as follows:
(1) A criminal complaint for falsification of entries in the
birth certificates filed against their father as principal
and against defendants as alleged accessories;
(2) A petition for the cancellation of the naturalization
certificate of their father, Lee Tek Sheng; and
(3) A petition for partition of Keh Shiok Chengs estate.[57]
According to the petitioners, all the three (3) actions abovementioned, as well as the Rule 108 petitions, subject of the case
before us, raise the common issue of whether petitioners are the
natural children of Keh Shiok Cheng or Tiu Chuan. They contend
that in all these cases, the judge or hearing officer would have to
resolve this issue in order to determine whether or not to grant the
relief prayed for.[58]
Forum shopping is present when in the two or more cases
pending there is identity of parties, rights or causes of action and
reliefs sought.[59] Even a cursory examination of the pleadings filed
by private respondents in their various cases against petitioners

14
would reveal that at the very least there is no identity of rights or
causes of action and reliefs prayed for. The present case has its roots
in two (2) petitions filed under Rule 108, the purpose of which is to
correct and/or cancel certain entries in petitioners birth
records. Suffice it to state, the cause of action in these Rule 108
petitions and the relief sought therefrom are very different from those
in the criminal complaint against petitioners and their father which
has for its cause of action, the commission of a crime as defined and
penalized under the Revised Penal Code, and which seeks the
punishment of the accused; or the action for the cancellation of Lee
Tek Shengs naturalization certificate which has for its cause of action
the commission by Lee Tek Sheng of an immoral act, and his
ultimate deportation for its object; or for that matter, the action for
partition of Keh Shiok Chengs estate which has for its cause of
action the private respondents right under the New Civil Code to
inherit from their mothers estate.

[2]

Entitled MARCELO LEE, ALBINA LEE-YOUNG, MARIANO

LEE, PABLO LEE, HELEN LEE, CATALINO K. LEE,
EUSEBIO LEE, EMMA LEE and TIU CHUAN versus
HON. LORENZO B. VENERACION and HON. JAIME T.
HAMOY, in their capacities as Presiding Judge of the RTCManila, Branch 47, and RTC-Kalookan City, Branch 130,
respectively, and RITA K. LEE, LEONCIO LEE TEK
SHENG, in their personal capacities and ROSA K. LEEVANDERLEK, MELODY K. LEE-CHIN, LUCIA K. LEE
TEK SHENG-ONG, JULIAN K. LEE, HENRY K. LEE,
MARTIN K. LEE, VICTORIANO K. LEE, NATIVIDAD K.
LEE-MIGUEL and THOMAS K. LEE represented by RITA
K. LEE.

[3]

Presiding Judge of Branch 47 of the RTC of Manila.

[4]

Presiding Judge of Branch 130 of the RTC of Kalookan.

We therefore concur in the finding of the Court of Appeals that

there is no forum shopping to speak of in the concept that this is
described and contemplated in Circular No. 28-91 of the Supreme
Court.

[5]

CA Rollo, Annex A of Petition in CA-G.R. No. 31786.

[6]

CA Rollo, Annex A-1 of Petition in CA-G.R. No. 31786.

WHEREFORE, the petition is hereby DENIED and the

assailed decision of the Court of Appeals dated October 28, 1994 is
AFFIRMED.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena,
JJ., concur.

[9]

[7]

Rollo, pp. 171-172.

[8]

Rollo, pp. 348-349.

CA Rollo, Amended Petition in CA-G.R. No. 31786.

[10]

CA Rollo, Annex D of the Petition in CA-G.R. No. 31786.

[11]

CA Rollo, Annex B of the Petition in CA-G.R. No. 31786.

[12]

CA Rollo, Annex E of the Petition in CA-G.R. No. 92-63692.

[13]

CA Rollo, Amended Petition in CA-G.R. No. 92-63692.

[14]

[1]

Penned by Associate Justice Jaime M. Lantin and concurred in by

Associate Justices Ruben T. Reyes and Conrado M. Vasquez,
Jr.; Rollo, pp. 22-36.

Rollo, p. 22.

[15]

Rollo, p. 38.

[16]

Rollo, p. 7.

[17]

Rollo, p. 33.

[18]

Sec. 3 (c), Rule 1 of the 1997 Rules of Civil Procedure.

15
[19]

Babiera v. Catotal, 333 SCRA 487 (2000); Benitez-Badua v. Court

of Appeals, 229 SCRA 468 (1994); CabatbatLim v. Intermediate Appellate Court, 166 SCRA 451 (1988).

[20]

141 SCRA 462 (1986).

[21]

Id., p. 468.

[22]

Id., pp. 473-474.

[23]

Rollo, p. 32.

[24]

Rollo, p. 310.

[25]

168 SCRA 294 (1988).

[26]

Supra, see note 20.

[27]

Brown v. Republic, 99 Phil. 818 (1956); Black, et al. v. Republic

104 Phil. 848 (1958); Bantoto Coo v. Republic, 2 SCRA 42
(1961); Beduya v. Republic, 11 SCRA 109 (1964);
Reyes vs. Republic, 12 SCRA 377 (1964);
Baybayan v.Republic, 16 SCRA 403 (1966); Tan, et
al. v. Republic, 16 SCRA 692 (1966); Matias v. Republic, 28
SCRA 31 (1969); Uy v. Local Civil Registrar of the City of
Cebu, 46 SCRA 1 (1972); Republic v. Medina, 119 SCRA
271 (1982); Rosales v. Castillo Rosales, 132 SCRA 132
(1984); Tan v. Republic 133 SCRA 591 (1984), to name a
few.

[28]

94 Phil. 321 (1954).

[29]

39 SCRA 350, 361 (1971).

[30]

Supra, see note 25.

[31]

Id., pp. 301-302.

[32]

Supra, see note 25.

[33]

Id., p. 299.

[34]

Hagans v. Wislizenus, 42 Phil. 880, 882 (1920).

[35]

Supra, see note 20.

[36]

Ibid.

[37]

256 SCRA 69 (1996).

[38]

305 SCRA 438 (1999).

[39]

Id., p. 444.

[40]

Supra, see note 28.

[41]

Id., pp. 323-324.

[42]

38 SCRA 409 ( 1971 ).

[43]

Id., p. 415.

[44]

Websters Third New International Dictionary, @ 1993.

[45]

Ibid.

[46]

Sotto v. Sotto, 43 Phil. 688, 694 (1922); Araneta v. Concepcion

and Araneta, 99 Phil. 709, 713 (1956); National Tobacco
Administration v. COA, 311 SCRA 755, 769 (1999); Paras v.
COMELEC, 264 SCRA 49, 54 (1996).

[47]

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.

[48]

Rollo, p. 13.

[49]

Supra, see note 19.

[50]

Section 2, Rule 3 of the 1997 Rules of Civil Procedure.

[51]

Supra, see note 19, p. 495.

[52]

Ibid.

[53]

Id., pp. 472-474.

16
[54]

Rollo, p. 14.

[55]

Espaol v. Chairman, Philippine Veterans Administration, 137

SCRA 314, 318 (1985).

[56]

Article 410 of the New Civil Code.

[57]

Rollo, p. 15.
[58]

[59]

Rollo, p. 16.

International School, Inc. (Manila) v. Court of Appeals, 309

SCRA 474, 480 (1999); Saura v. Saura, Jr., 313 SCRA 465,
475 (1999).

THIRD DIVISION
G.R. No. 142877

October 2, 2001

JINKIE CHRISTIE A. DE JESUS and JACQUELINE A. DE

JESUS minors, represented by their mother, CAROLINA A.
DE JESUS, petitioners,
vs.
THE ESTATE OF DECEDENT JUAN GAMBOA DIZON,
ANGELINA V. DIZON, CARLOS DIZON, FELIFE DIZON,
JUAN DIZON, JR. and MARYLIN DIZON and as proper
parties: FORMS MEDIA CORP., QUAD MANAGEMENT
CORP., FILIPINAS PAPER SALES CO., INC. and AMITY
CONSTRUCTION & INDUSTRIAL ENTERPRISES,
INC.respondents.
VITUG, J.:
The petitioner involves the case of the illegitimate children
who, having been born in lawful wedlock, claim to be the

illegitimate scions of the decedent in order to enforce their

respective shares in the latter's estate under the rules of
succession.
Danilo B. de Jesus and Carolina Aves de Jesus got married
on 23 August 1964. It was during this marriage that Jacqueline
A. de Jesus and Jinkie Christie A. de Jesus, herein petitioners,
were born, the former on 01 March 1979 and the latter on 06
July 1982.
In a notarized document, dated 07 June 1991, Juan G.
Dizon acknowledged Jacqueline and Jinkie de Jesus as being
his own illegitimate children by Carolina Aves de Jesus. Juan
G. Dizon died intestate on 12 March 1992, leaving behind
considerable assets consisting of shares of stock in various
corporations and some real property. It was on the strength of
his notarized acknowledgement that petitioners filed a
complaint on 01 July 1993 for "Partition with Inventory and
Accounting" of the Dizon estate with the Regional Trial Court,
Branch 88, of Quezon City.
Respondent, the surviving spouse and legitimate children of
the decedent Juan G. Dizon, including the corporations of
which the deceased was a stockholder, sought the dismissal of
the case, arguing that the complaint, even while denominated
as being one for partition, would nevertheless call for altering
the status of petitioners from being the legitimate children of
the spouses Danilo de Jesus and Carolina de Jesus to instead
be the illegitimate children of Carolina de Jesus and deceased
Juan Dizon. The trial court denied, due to lack of merit, the
motion to dismiss and subsequent motion for reconsideration
on, respectively, 13 September 1993 and 15 February 1994.
Respondents assailed the denial of said motions before the
Court of Appeals.

17
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.1wphi1.nt
On 03 January 2000, long after submitting their answer, pretrial brief and several other motions, respondents filed an
omnibus motion, again praying for the dismissal of the
complaint on the ground that the action instituted was, in fact,
made to compel the recognition of petitioners as being the
illegitimate children of decedent Juan G. Dizon and that the
partition sought was merely an ulterior relief once petitioners
would have been able the establish their status as such heirs.
It was contended, in fine that an action for partition was not an
appropriate forum to likewise ascertain the question of
paternity and filiation, an issue that could only be taken up in
an independent suit or proceeding.
Finding credence in the argument of respondents, the trial
court, ultimately, dismissed the complaint of petitioners for lack
of cause of action and for being improper.1 It decreed that the
declaration of heirship could only be made in a special
proceeding in asmuch as petitioners were seeking the
establishment of a status or right.
Petitioners assail the foregoing order of the trial court in the
instant petition for review on certiorari. Basically, petitioners
maintain that their recognition as being illegitimate children of
the decedent, embodied in an authentic writing, is in itself
sufficient to establish their status as such and does not require
a separate action for judicial approval following the doctrine
enunciated in Divinagracia vs. Bellosillo.2

In the comment, respondents submit that the rule

in Divinagracia being relied by petitioners is inapplicable to the
case because there has been no attempt to impugn legitimate
filiation in Divinagracia. In praying for the affirmance of
dismissal of the complaint, respondents count on the case
of Sayson vs. Court of Appeals,3 which has ruled that the issue
of legitimacy cannot be questioned in a complaint for partition
and accounting but must be seasonably brought up in direct
action frontally addressing the issue.
The controversy between the parties has been pending for
much too long, and it is time that this matter draws to a close.
The filiation of illegitimate children, like legitimate children, is
established by (1) the record of birth appearing the civil
register or a final judgement; or (2) an admission of legitimate
filiation in a public document or a private handwritten and
signed by the parent concerned. In the absence thereof,
filiation shall be proved by (1) the open and continuos
possession of the status of a legitimate child; or (2) any other
means allowed by the Rules of Court and special laws.4 The
due recognition of an illegitimate child in a record of birth,
a will, a statement before a court or record, or in any
authentic writing is, in itself, a consummated act of
acknowledgement of the child, and no further court action
is required.5 In fact, any writing is treated not just a ground for
compulsory recognition; it is in itself voluntary recognition that
does not require a separate action for judicial
approval.6 Where, instead, a claim for recognition is
predicted on other evidence merely tending to prove
paternity, i.e., outside of a record of birth, a will, a
statement before a court or record or an authentic writing,
judicial action within the applicable statue of limitations is
essential in order to establish the child's
acknowledgement.7

18
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.

19
Melo, Panganiban, Sandoval-Gutierrez, JJ., concur.

(b) the fact the husband and wife were living

separately in such a way that sexual
intercourse was not possible; or

Footnote
1

Regional Trial Court Decision, 08 February 2000.

143 SCRA 356

205 SCRA 321

Article 172, Family Code.

Gono-Javier vs. Court of Appeals, 239 SCRA 593.

See Divinagracia vs. Bellosillo, 143 SCRA 356.

Gono-Javier vs. Court of Appeals, 239 SCRA 593.

(b) serious illness of the husband, which

absolutely prevented sexual intercourse.
(2) That it is proved that for biological or other
scientific reasons, the child could not have been that
of the husband, except in the instance provided in
the second paragraph of Article 164; or
(3) That in case of children conceived through
artificial insemination, the written authorization or
ratification of either parent was obtained through
mistake, fraud, violence, intimidation, or undue
influence."

Tison vs. Court of Appeals, 276 SCRA 582; Article 164 of

the Family Code provides:
ART. 164. Children conceived or born during the
marriage of the parents are legitimate.
Children conceived as a result of artificial
insemination of the wife the sperm of the husband or
those of a doctor or both are likewise legitimate
children of the husband and his wife. Provided, that
both of them authorized or ratified such insemination
in a written instrument executed and signed by them
before the birth of the child. The instrument shall be
recorded in the civil registry with the birth certificate
of the child.
9

Article 166 of the Family Code provides:

"ART. 166 Legitimacy of a child may be impugned
only on the following grounds:
(1) That it was physically impossible for the husband
to have sexual intercourse with his wife within the
first 120 days of the 300 days which immediately
preceded the birth of the child because of:
(a) the physical incapacity of the husband to
have sexual intercourse with his wife;

10

Art. 170. The action to impugn the legitimacy of the child

shall be brought within one year from the knowledge of the
birth or its recording in the civil register, if the husband or, in
a proper case, any of his heirs, should reside in the city or
municipality where the birth took place or was recorded.
If the husband or, in his default, all of his heirs do not reside
at the place of birth as defined in the first paragraph or where
it was recorded, the period shall be two years if they should
reside in the Philippines; and three years if abroad. If the
birth of the child has been concealed from or was unknown
to the husband or his heirs, the period shall be counted from
the discovery or knowledge of the birth of the child or of the
fact of registration of said birth, whichever is
earlier.1wphi1.nt
11

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 cases:
(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

20
(3) if the child was born after the death of the
husband.
12

Tison vs. Court of Appeals, 276 SCRA 582.

13

See Article 170.

14

See Article 171.

15

Tison vs. Court of Appeals, 276 SCRA 582.

16

La-Ducasse vs. Ducasse, 45 So. 565, 120 La. 731; Saloy's

Succ. 10 So. 782, 44 La. Ann., cited in 10 C.J.S 77.
17

Article 167, Family Code, Macadangdang vs. Court of

Appeals, 100 SCRA 73.

SECOND DIVISION
[G.R. No. 138961. March 7, 2002]
WILLIAM LIYAO, JR., represented by his mother Corazon
Garcia, petitioner,
vs. JUANITA TANHOTI-LIYAO, PEARL MARGARET L. TAN,
TITA ROSE L. TAN AND LINDA CHRISTINA
LIYAO, respondents.
DECISION
DE LEON, JR., J.:
Before us is a petition for review on certiorari assailing the
decision dated June 4, 1999 of the Court of Appeals in CAG.R. C.V. No. 45394[1] 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 TanhotiLiyao, 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 Williams untimely demise on December 2, 1975. They lived
together in the company of Corazons 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 Liyaos 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

21
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.

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.

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 Billys birth certificate. He likewise instructed Corazon
to open a bank account for Billy with the Consolidated Bank
and Trust Company[4] 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]

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 couples residence and cook for the family. During these
occasions, she would usually see William Liyao in sleeping
clothes. When Corazon, during the latter part of 1974, was
pregnant with her child Billy, Maurita often visited her three (3)
to four (4) times a week in Greenhills and later on in White
Plains where she would often see William Liyao. Being a close
friend of Corazon, she was at the Cardinal Santos Memorial
Hospital during the birth of Billy. She continuously visited them
at White Plains and knew that William Liyao, while living with
her friend Corazon, gave support by way of grocery supplies,
money for household expenses and matriculation fees for the
two (2) older children, Bernadette and Enrique. During William
Liyaos 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. Liyaos funeral and helped Corazon
pack his clothes. She even recognized a short sleeved shirt of
blue and gray[12] which Mr. Liyao wore in a photograph[13] as
well as another shirt of lime green[14] as belonging to the

During the lifetime of William Liyao, several pictures were

taken showing, among others, William Liyao and Corazon
together with Billys godfather, Fr. Julian Ruiz, William Liyaos
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 Liyaos 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 latters direct and
overt acts. William Liyao supported Billy and paid for his food,
clothing and other material needs. However, after William
Liyaos death, it was Corazon who provided sole support to

22
deceased. A note was also presented with the following
inscriptions: To Cora,
Love
From
William. [15] Maurita
remembered having invited the couple during her mothers
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 Corazons 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 latters death on December 2, 1975. Mr. Liyao was very

supportive and fond of Enriques half brother, Billy. He identified

several pictures showing Mr. Liyao carrying Billy at the house
as well as in the office. Enriques 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 peoples 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

23
business and had dietary restrictions. Mr. Liyao also suffered a
milder stroke during the latter part of September to October
1974. He stayed home for two (2) to three (3) days and went
back to work. He felt depressed, however, and was easily
bored. He did not put in long hours in the office unlike before
and tried to spend more time with his family.
Linda testified that she knew Corazon Garcia is still
married to Ramon Yulo. Corazon was not legally separated
from her husband and the records from the Local Civil
Registrar do not indicate that the couple obtained any
annulment[17] of their marriage. Once in 1973, Linda chanced
upon Ramon Yulo picking up Corazon Garcia at the company
garage. Immediately after the death of Lindas father, Corazon
went to Lindas office for the return of the formers 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 mens
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 fathers 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 (P100,000.00) 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 latters
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 oclock
in the morning. At past 7:00 oclock 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. Liyaos
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.

24
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 latters 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,judgmentisherebyrenderedinfavoroftheplaintiff
andagainstthedefendantsasfollows:
(a)ConfirmingtheappointmentofCorazonG.Garciaasthe
guardianadlitemoftheminorWilliamLiyao,Jr.;
(b)DeclaringtheminorWilliamLiyao,Jr.astheillegitimate
(spurious)sonofthedeceasedWilliamLiyao;
(c)OrderingthedefendantsJuanitaTanhotiLiyao,Pearl
MargaretL.Tan,TitaRoseL.TanandChristianLiyao,to
recognize,andacknowledgetheminorWilliamLiyao,Jr.as

acompulsoryheirofthedeceasedWilliamLiyao,entitledto
allsuccesionalrightsassuch;and
(d)Costsofsuit.[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 others 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

25
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 Liyaos 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
Code[24] provides:
Article255.Childrenbornafteronehundredandeightydays
followingthecelebrationofthemarriage,andbeforethreehundred
daysfollowingitsdissolutionortheseparationofthespousesshall
bepresumedtobelegitimate.

Againstthispresumptionnoevidenceshallbeadmittedotherthan
thatofthephysicalimpossibilityofthehusbandhavingaccesstohis
wifewithinthefirstonehundredandtwentydaysofthethree
hundredwhichprecededthebirthofthechild.
Thisphysicalimpossibilitymaybecaused:
1)Bytheimpotenceofthehusband;
2)Bythefactthathusbandandwifewerelivingseparatelyinsucha
waythataccesswasnotpossible;
3)Bytheseriousillnessofthehusband.
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 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

26
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 mothers 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.
Considering the foregoing, we find no reason to discuss
the sufficiency of the evidence presented by both parties on
the petitioners 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.
Bellosillo,
(Chairman),
Quisumbing, and Buena, JJ., concur.

Mendoza,

[1]

Entitled, William Liyao, Jr., represented by his mother and

guardian ad litem, Corazon G. Garcia, plaintiffappellee, v. Juanita Tanhoti-Liyao, Pearl Margaret L.
Tan and Linda Christina Liyao, defendantsappellants, Rollo, pp. 44-68.

[2]

Records, Volume I, pp. 1-7.

[3]

Records, Volume I, pp. 27-30; Rollo, pp. 69-72.

[4]

Exhibit K.

[5]

Exhibit K-3.

[6]

Exhibits J-1 - J-4, J-11 - J-13.

27
[7]

Exhibits N - N-5

[8]

Exhibits N-10 - N-11, N-14 - N-15.

[9]

TSN, January 15, 1987, p. 32.

children of the husband and his wife, provided that

both of them authorized or ratified such insemination in
a written instrument executed and signed by them
before the birth of the child. The instrument shall be
recorded in the civil registry together with the birth
certificate of the child.

[10]

TSN, August31, 1984, p. 23.

[11]

TSN, August 31, 1984, p. 25.

[23]

Exhibit F-1.

10 Am Jur 2d, Bastards 10 at 850.

[24]

Exhibit G-1.

Article 166 of the Family Code has a similar provision.

[25]

Exhibit F.

Exhibit A.

[26]

Exhibit G-1.

Exhibit B.

[27]

Exhibit 12.

Now Article 171 of the Family Code.

[28]

I Tolentino Civil Code 537 (1990) citing Bevilaqua, Familia,

p.314 and Macadangdang v. CA, 100 SCRA 73 [1980].

[12]
[13]
[14]
[15]
[16]
[17]

Exhibit 3.

[18]

TSN, February 19, 1988, p. 45.

[29]

Ibid.

[19]

Exhibit 13.

[30]

[20]

Exhibit 15.

Article 256 of the New Civil Code, now Article 167 of the
Family Code.

[21]

CA Rollo, pp. 361-376.

[31]

I Tolentino Civil Code 533 [1990] citing 1 Manresa 553.

[22]

Article 255 of the Civil Code provides, 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. xxx Article
258 of the Civil Code also provides, A child born within
one hundred eighty days following the celebration of
the marriage is prima facie presumed to be
legitimate. x x x A similar provision is now found in
Article 164 of the Family Code which reads Children
conceived or born during the marriage of the parents
are legitimate. Children conceived as a result of
artificial insemination of the wife with the sperm of the
husband or that of a donor are likewise legitimate

28
We have a list of these crooked judges whose actuations have
been found to be patently wrong and indefensible. There
ought to be no objection or compunction in weeding them out
from the service. If they are not booted out now, it will take
from here to eternity to clean this Augean stable. 1
Indeed, our judicial structure is supposed to be manned by
magistrates chosen for their probity, integrity, impartiality,
dedication and learning. And so, any judge wanting in any of
these qualities should be broomed off and out of the bench in
order to improve the judicial landscape. Screening off the
misfits, considering the great number of judges and justices in
the country at present, is the arduous and Herculean task of
this Court. The effort if dramatized with rectitude and sincerity
should bring about the strengthening of the people's abiding
faith in democracy and the integrity of our courts of justice.

EN BANC
A.M. No. MTJ-92-716 October 25, 1995
MA. BLYTH B. ABADILLA, complainant,
vs.
JUDGE JOSE C. TABILIRAN, JR., Presiding Judge, 8th
MCTC, Manukan and Jose Dalman, 9th Judicial Region,
Manukan, Zamboanga del Norte, respondent.

PER CURIAM:

The herein administrative case arose from a complaint, dated

September 8, 1992, filed by Ma. Blyth B. Abadilla, a Clerk of
Court assigned at the sala of respondent, Judge Jose C.
Tabiliran, Jr., of the 8th Municipal Circuit Trial Court, Manukan,
Zamboanga del Norte. Respondent stands charged with
"gross immorality, deceitful conduct, and corruption
unbecoming of a judge."
In her verified complaint, complainant Abadilla, in respect to
the charge of gross immorality on the part of the respondent,
contends that respondent had scandalously and publicly
cohabited with a certain Priscilla Q. Baybayan during the
existence of his legitimate marriage with Teresita Banzuela.
Adding ignominy to an ignominious situation, respondent
allegedly shamefacedly contracted marriage with the said
Priscilla Baybayan on May 23, 1986. Complainant claims that
this was a bigamous union because of the fact that the
respondent was then still very much married to Teresita
Banzuela.

29
Furthermore, respondent falsely represented himself as
"single" in the marriage contract (Exh. "A") and dispensed with
the requirements of a marriage contract by invoking
cohabitation with Baybayan for five years.
Of persuasive effect on the charge of immorality is the fact
that, earlier, respondent's wife filed a complaint in the case
entitled, Teresita B. Tabiliran vs. Atty. Jose C. Tabiliran, Jr., 115
SCRA 451. Respondent stood charged therein for abandoning
the family home and living with a certain Leonora Pillarion with
whom he had a son.
In respect of the charge of deceitful conduct, complainant
claims that respondent caused to be registered as "legitimate",
his three illegitimate children with Priscilla Baybayan, namely:
Buenasol B. Tabiliran born on July 14, 1970
Venus B. Tabiliran born on Sept. 7, 1971
Saturn B. Tabiliran born on Sept. 20, 1975
by falsely executing separate affidavits stating that the
delayed registration was due to inadvertence,
excusable negligence or oversight, when in truth and in
fact, respondent knew that these children cannot be
legally registered as legitimate.
The following acts are alleged to have constituted the charge
of corruption:
(1) Utilizing his office time, while being a judge, in the private
practice of law by the preparation and notarization of
documents, out of which he charged fees beyond the
authorized rates allowed as Ex-Officio Notary Public. These

acts which, according to the charge, amount to the private

practice of law, prejudice public interest.
Complainant submitted the following documents in support of
these allegations:
a) Affidavit of Ponciana Geromo (Annex "B"), attesting
to the fact that respondent Judge Tabiliran prepared
a Simultaneous Deed of Sale, (Annex "C", Doc. No.
901, Page No. 77, Book No. V, Series of 1991 of ExOfficio Notary Public Jose C. Tabiliran, Jr.) and
collect P600.00 from the vendees (par. 10(a) a-1
Complaint, p. 9 records);
b) Receipt prepared under instruction of the respondent
showing that he received P250.00 thru MCTC Aide
Ely O. Inot for preparation and notarization of Joint
Affidavit declaring the correct ages of Carlo
Manzano, Lodmila Cinco, Kadapi Amad, Jul Samud
and Amman Eddai dated November 12, 1991, when
the legal fees therefor should have been P10.00
only (Annex "D") (par. 10(a) a-2 Complaint, p. 9
records);
c) Another receipt (Annex "E") prepared thru the
direction of the respondent dated November 12,
1991, showing that said respondent received from
Reynaldo Subebe the sum of P150.00 for
preparation and notarization by him of a Joint
Affidavit declaring the correct age of Agata Luna,
Rosie Miranda and Jose Juneser Adrias (par. 10(a)
a-c Complaint, p. 9 records);
d) Still another receipt (Annex "F") dated November 12,
1991, signed by the respondent himself showing
that he received from Nelly Baradas the sum of

30
P50.00 for preparation and notarization of Joint
Affidavit attesting to the correct age of one
Luzviminda Jacoba (par. 10(a) a-d Complaint, p. 9
records);
e) Another receipt (Annex "G") dated November 12,
1991, issued by the respondent, showing that he
received from Torres P. Modai the sum of P50.00,
thru the same Ely O. Inot, MCTC Aide, for
preparation of Joint Affidavit attesting to the correct
age of Flores Jalampangan (par. 10 (a) a-e
Complaint, pp. 9 & 10 records).
(2) Accepting bribes from parties-litigants in his Court as
supported by an affidavit (Annex "M") executed by a certain
Calixto Calunod, a court aide, stating that he saw Edna Siton,
complainant in a criminal case tried by respondent, hand over
to the latter a bag of fish and squid which respondent Judge
received.
(3) Preparing an Affidavit of Desistance in a case filed with his
sala out of which he collected the amount of P500.00 from the
accused Antonio Oriola, as supported by the affidavits of
Arcelita Salvador, the complainant therein, and Benito Sagario,
one of the persons present when the accused perpetrated the
acts aforesaid. (Submitted as Annexes "I" and "J",
respectively.)
Complainant manifests that the commission by the respondent
of the foregoing acts renders him unfit to occupy the exalted
position of a dispenser of justice. By the example shown by
the respondent, the public had allegedly lost confidence in the
administration of justice, perceiving as is evident to see that
the person occupying the position of a judge lacks the morality
and probity required of one occupying such a high office.

Respondent, in his comment, dated December 25, 1992,

declared that his cohabitation with Priscilla Baybayan is not
and was neither bigamous nor immoral because he started
living with Priscilla Baybayan only after his first wife had
already left and abandoned the family home in 1966 and,
since then, and until the present her whereabouts is not known
and respondent has had no news of her being alive. He further
avers that 25 years had already elapsed since the
disappearance of his first wife when he married Priscilla
Baybayan in 1986.
Respondent cited Sec. 3(w), Rule 131 of the Rules of Court
and Art. 390 of the Civil Code in order to show the legality of
his acts:
After the absence of seven years, it being unknown
whether or not the absentee still lives, he is considered
dead for all purposes except for those of succession.
(Rule 131, Sec. 3(w), Rules of Court.)
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. (Art. 390, Civil Code.)
The case of Jones vs. Hortiguela, 64 Phil. 179, where this
Court held that for the purpose of the civil marriage law, it is
not necessary to have the former spouse judicially declared an
absentee is to respondent's mind, a case in point.
He admits that he indicated in his marriage contract that he
was then "single", but he denied the charge that he acted with
deceit or false misrepresentation, claiming that, since there
were only three words to choose from, namely: Single, Widow
or Divorced, he preferred to choose the word "single", it being
the most appropriate. Besides, both he and Priscilla executed

31
a joint affidavit wherein his former marriage to Banzuela was
honestly divulged.
On the charge of corruption, respondent submitted
certifications (Annexes "4" & "5") from the Mayor of Manukan,
Zamboanga del Norte, attesting to the fact that there was no
Notary Public in Manukan and, as such, respondent may be
allowed to notarize documents. He denied having charged
exorbitant fees. He claims that all the amounts received by him
were used to subsidize office expenses, since the funds he
had been receiving from the municipal government were not
enough to cover expenses in maintaining his office.
Respondent submitted a certification (Annex "6") from the
Accounting Department of the Municipal Government of
Manukan to the effect that his yearly expenditures were more
than the yearly appropriations.
Respondent finds support in Canon 4, Rule 4.01 of the Code
of Judicial Conduct which states:
A Judge may, with due regard to official duties, engage
in activities to improve . . . the administration of justice.
Respondent vehemently denies the charge of bribery claiming
that it was inconceivable for him to receive a bag full of fish
and squid since his residence was 42 kilometers from Jose
Dalman where his courtroom or office was located. It takes
one an hour and a half by bus to reach Katipunan and so, by
the time he reaches his house, the fish and the squid should
have become rotten. In support of his denials, respondent
submitted as Annex "8", an affidavit of Ely D. Inot, their court
Interpreter who declared:
xxx xxx xxx

3. That last June 6, 1991, I was with the Municipal

Judge, Jose C. Tabiliran, Jr., from the morning until we
went home in the afternoon and we in fact dined
together in the local Carenderia of Jose Dalman as it is
the usual ways of the Judge to eat lunch together with
the court personnel;
4. That when we went home in the afternoon of that
day we were also together riding in a bus, the Lillian
Express and until I drop in Roxas and he proceeded to
Katipunan where his residence is;
5. That all the time during that day I did not noticed him
bringing anything except his "Hand Bag" which he
used to carry in going to the office; (Annex "8", Affidavit
of Ely O. Inot, December 17, 1992.)
xxx xxx xxx
Finally, respondent tags as a fabricated lie the charge that he
prepared an Affidavit of Desistance in a case pending in his
sala and thereafter charged the accused, Antonio Oriola, the
sum of P500.00 for legal services. The complainant, he said,
was the one who induced Arcelita Salvador (the complainant in
the rape case) to execute an affidavit (Annex "I") in support of
the charge of corruption against respondent.
Complainant's filing of the present case was motivated by
revenge and resentment because, earlier, respondent filed an
administrative case (A.M. No. P-91-597) against her for
"Insubordination and Serious Misconduct". The Supreme Court
decided to reprimand her with a warning that a repetition of her
acts will be severely dealt with. Respondent claims that the
complainant had nevertheless repeatedly continued to do acts
of insubordination in the following manner:

32
1) She continues to keep court records and has kept
refusing to hand them over to respondent inspite of
verbal and written orders;
2) She refused to receive a memorandum from the
Vice-Mayor requiring the Clerk of Court to submit an
Annual report;
3) She refused to prepare the said annual report
required of her as Clerk of Court;
4) She continue to refuse to obey just and lawful orders
of the Court.
On April 12, 1993, by resolution of this Court En Banc, the
herein administrative case was referred to Executive Judge
Jesus O. Angeles of the Regional Trial Court, Dipolog City, for
investigation, report and recommendation. Judge Angeles
found respondent guilty only on two (2) counts of corruption:
(1) for acting as notary public and collecting fees for his
services; and (2) for preparing an affidavit of desistance in a
case pending in his Court and receiving payment for it.
In his report and recommendation dated August 3, 1993,
Executive Judge Angeles found that:

ON GROSS IMMORALITY:
In contracting marriage with Priscilla Q. Baybayan on
May 23, 1986, (p. 13 of the records), respondent did
not hide the fact that he was married to Teresita T.
Banzuela, having disclosed it in his affidavit jointly
executed with Priscilla Q. Baybayan on May 23, 1986

(p. 115 of the records), particularly paragraph 4 thereof

which reads:
4. That affiant Jose C. Tabiliran, Jr., was formerly
married to Teresita T. Banzuela but who left and
abandoned their family home sometime in 1965 in
Katipunan, Zamboanga del Norte, and until now at
present her whereabouts is not known.
It was therefore a marriage contracted under Article 83
(2) of the Civil Code which, although bigamous,
remains valid until automatically terminated by the
recording of the affidavit of reappearance of the absent
spouse (Art. 42, Family Code). Respondent's assertion
that since 1965 to the present, his first wife Teresita T.
Banzuela had left their conjugal dwelling and did not
return, her whereabouts being unknown, was not
controverted. Living as husband and wife pursuant to
an authorized bigamous marriage, respondent cannot
be said to be acting in an immoral and scandalous
manner, and the immoral stigma of extra-marital union
since 1969 duly declared in their aforesaid joint
affidavit, may be considered cleansed by their marriage
in 1986, if Art. 1395 of the Civil Code on ratification on
contracts in general is allowed to be applied, it being
ratification of marital cohabitation. Article 76 of Civil
Code, now Art. 34 of the Family Colde was intended to
facilitate and encourage the marriage of persons who
have been living in a state of concubinage for more
than five years (Tolentino, Civil Code, Book I, 1974 Ed.,
p. 245, cited in Ernesto L. Pineda, Family Code, 1992
Ed., p. 38). Indicating his civil status in the marriage
contract as "single" is hardly considered a
misrepresentation of fact, specially to the solemnizing
officer, Municipal Mayor Jacinto C. Ruedas, Jr. to
whom the aforesaid joint affidavit was submitted.

33
ON DECEITFUL CONDUCT:
Respondent's children begotten with Priscilla Q.
Baybayan, namely: Buenasol B. Tabiliran, Venus B.
Tabiliran and Saturn B. Tabiliran, all of whom were born
before their marriage, were disclosed and made known
to the solemnizing officer and the latter himself, in his
affidavit dated May 23, 1986 (p. 116 of the records)
which supports the marriage contract of respondent
with Priscilla Q. Baybayan, having shown such fact.
Exhibit P which purports to be an affidavit of Lydia T.
Zanoria dated May 27, 1993, consisting of three pages,
was submitted by the complainant for the purpose of
proving her charge that the respondent falsely
executed his three separate affidavits, namely: Exhibit
K dated May 24, 1983 regarding the late registration of
birth of his daughter Buenasol B. Tabiliran; Exhibit M
dated May 28, 1988 regarding the late registration of
birth of his third child Saturn B. Tabiliran; and his
affidavit dated May 27, 1988, Exhibit O, in reference to
the late registration of birth of his second child Venus
B. Tabiliran, stating inadvertence, excusable
negligence or oversight as the reasons for the delayed
registration of their births, without however presenting
said affiant Mrs. Zanoria, consequently denying
respondent the opportunity to cross examine her. Her
affidavit is not among those brought out in the prehearing conference, and was not discussed during the
hearing itself, submitting it only after the investigation
proper was terminated. The supposed affiant claimed
she was the government midwife who attended to the
births of respondent's three children, denying, as the
affidavit shows, negligence, inadvertence or oversight
on her part to register their birth on time. Not having
been presented for respondent to confront her, or an

opportunity to do so, Exhibit P cannot be considered

evidence of the charge. An affidavit is hearsay unless
the affiant is presented (People vs. Villeza, 127 SCRA
349), or admitted by the party against whom it is
presented.
ON CORRUPTION:
1. Acting as Notary Public during office hours, and
collecting fees:
Respondent has admitted having prepared the
documents and collected fees, in the instances
specified in par. 10 of the complaint, namely: (1)
affidavit of Ponciana Geromo; (2) Joint Affidavit of
Carlo Manzano, Lodmila Cinco, Kadapi Amad, Jul
Samud and Amman Eddai; (3) Joint Affidavit of Agata
Luna, Rosie Miranda and Jose Juneser Adrias; (4)
Joint Affidavit on the correct age of Luzviminda Jacoba;
and (5) Joint Affidavit on the correct age of Flores
Jalampangan, but not necessarily on the accuracy of
the amounts therein stated as having been collected by
him from them (please see Pre-Hearing Order of May
20, 1993 of the Investigating Judge). Seeking
justification of his acts, respondent submitted Annexes
4 & 5 of his comments (pp. 118 and 119, records)
which are certifications of Manukan Mayor Eugene U.
Caballero attesting that in the absence of a Notary
Public in Manukan town, respondent who is a Judge
thereat was allowed "to prepare and ligalize (sic)
documents".
He declared "the fees derived from the preparation and
notarization of documents were mostly used by
respondent to buy supplies and materials of his Office",
explaining that his office needs cannot be sustained by

34
the appropriations of the local government which are
inadequate. On page 120 of the records, his Annex 6
shows a shortage in his appropriations for supplies.
And supplies from the Supreme Court can only be
obtained if secured personally but has to assume the
expenses for transportation, freight and handling.
Respondent Judge maintains that the Code of Judicial
conduct does not prohibit him from acting as Notary
Public, and the fees he has received were much lower
than the rates prescribed by the Integrated Bar of the
Philippines, Zamboanga del Norte Chapter, submitting
Annex 3, p. 117 of the records, to prove it.
Further justifying his act under Canon 4, Rule 4.01 of
the Code of Judicial Conduct which provides that a
judge may, with due regard to official duties, engaged
in activities to improve the administration of justice,
respondent claims that due to his efforts, he was able
to secure an extension room of his office covering a
floor area of 24 square meters, from the Sangguniang
Pampook of Region IX based in Zamboanga City,
costing P19,000.00 per certification shown in his Annex
7 (page 121 of the records).
In the light of 1989 Code of Judicial Conduct vis-avis the power of Municipal Trial Court Judges and
Municipal Circuit Trial Court Judges to act in the
capacity of Notary Public Ex-Officio, the Honorable
Supreme Court in A.M. No. 89-11-1303, MTC, Dec. 19,
1989, has ruled:
MTC and MCTC Judges assigned to municipalities or
circuits with no lawyers or notaries public may, in their
capacity as notary public ex-officio perform any act
within the competency of a regular Notary Public,

provided that: (1) all notarial fees charged be for the

account of the Government and turned-over to the
municipal treasurer (Lapea, Jr. vs. Marcos, Adm.
Matter No. 1969-MJ, June 29, 1982, 114 SCRA 572);
and (2) certification be made in the notarized
documents attesting to the lack of any lawyer or notary
public in such municipality or circuit.
Although absence of a notary public commissioned for,
and residing in Manukan town, even in Jose Dalman
which is within his circuit is confirmed, respondent
Judge while he may be justified in so acting as notary
public, did not, however, comply with requirement No. 1
which obliged him to charge for the account of the
Government and turn-over to the municipal treasurer all
notarial fees. And there is no way of determining the
truth of his assertion that the notarial fees he collected
were "mostly used" to buy supplies and materials for
his office, absent any accounting.
2. Accepting Bribe from Parties-litigants:
Admitting the existence of Annex H found on page 21
in the records, respondent, however, denied the
imputation therein contained by affiant Calixto Calunod
that he received a sando bag full of fish and squid from
a certain Edna Siton who had a case with respondent's
court as complainant in a certain criminal case. Instead
of calling the affiant himself, complainant presented the
Court Interpreter Ely O. Inot, who "confirmed that there
was squid and fish contained in a plastic bag which
was left in Aseniero Carenderia by a person unknown
to her and some members of the Court staff. When
informed by the carenderia owner that the stuff was
intended for Judge Tabiliran, the latter told them to
cook it, and they afterwards partook of it without the

35
Judge who already boarded the passenger bus".
(Record of Proceedings, p. 1, par. No. 1, dated June
11, 1993). Being her witness, complainant is bound by
her testimony. This particular charge is, therefore, not
proved.

true. Evidently, Judge Tabiliran wants to avoid meeting

them by way of confrontation. If he is innocent, and is
certain the charge is fabricated, he will surely raise hell
to insist that he confronts them face to face. Clearly, his
deportment betrays his insistence of innocence.

3. Preparing Affidavit of Desistance and Collecting Fee

for his Services:

On Respondent's Counterclaim:

Under this count, two affidavits both sworn before 2nd

Asst. Provincial Fiscal Valeriano B. Lagula were
submitted: one by Arcelita Salvador, complainant in an
attempted rape case who was categorical in her
declaration that respondent Judge asked and received
from Pitoy Oriola, brother of accused Antonio Oriola the
amount of P500.00 after the Judge prepared the
affidavit of desistance and motion to dismiss which he
made her sign (Annex I, p. 40 records). Benito Sagario
who was present executed another separate affidavit,
Annex J found on page 41 in the records, confirming it.
In admitting the affidavit, respondent, however, denied
the imputation, asserting that it is false, but without
confronting them or presenting witnesses to dispute
their accusation. He could have demanded that the
affiants, including the persons they mentioned were
present in the transaction, namely: accused Antonio
Oriola, his brother Pitoy Oriola, Ignacio Salvador, and
INC Minister Antonio Calua be required to appear for
his confrontation, but respondent chose not, contented
himself only with the explanation that it was just the
handiwork of complainant Abadilla and her husband, a
major in the military who is an active member of the
Iglesia Ni Cristo of which affiant Arcelita Salvador also
belonged, which is bare and unsubstantiated. No other
conclusion can be drawn other than holding, as the
Investigating Judge does, that this particular charge is

It was not proven. On the contrary, the controverting

evidence shows that the records of Criminal Case No.
2279 referred to in his Annex 9, p. 123 of the records,
were not in the possession of complainant. Quite
obviously, Ely O. Inot, respondent's Court Interpreter
tried to cover up the fact that the same were already
being kept by Judge Tabiliran before he issued the
memorandum, Annex 9. Complainant, who is
respondent's Clerk of Court was not, therefore, in a
position to comply with his Order.
Also, Mrs. Abadilla's failure to prepare the annual
report of the Court in 1992 as called for in Annexes 10
and 10-A was, contrary to respondent's claim, not by
reason of her obstinate refusal to obey her superior
but, by sheer impossibility to comply, considering that
monthly reports upon which the annual report shall be
based, were not prepared by her, not because of her
refusal to do so which is among those included in her
job description, but because the Judge himself took the
work from her for no other reason than to establish the
false impression that the complainant is disobedient to
the Judge, and does not attend to her duties.
By and large, there is no harmony in their office.
Complainant and respondent are not in talking terms.
They are hostile to each other. Respondent's complaint
that Mrs. Abadilla spat saliva in front of him whenever

36
they meet each other; destroying the Court dry seal by
throwing it at him one time she was mad; showing face;
and sticking out her tongue to him, are all puerile acts
which the undersigned cannot conclude as sufficiently
established even with the testimony of Mrs. Ely O. Inot
which is far from being definite and categorical, whose
actuation is understandable because Judge Tabiliran,
being her superior, has moral ascendancy over her
(Record of Proceedings, June 11, 1993).
The undersigned believes that the problem is on Judge
Tabiliran, and not on Mrs. Abadilla, who has been in the
service as Clerk of Court under a previous Judge of the
same Court for quite long without any complaint having
been filed. The evidence disputing his counterclaim
tends to show that respondent tried to build up a
situation of undesirability against his Clerk of Court
whom he wanted pulled out from her position in his
Court.
Other Matters Not Covered By The Complaint And
Comments:
The authority to investigate being confined only to
matters alleged in the complaint on the basis of which
respondent filed his comments, other matters not
therein covered which complainant brought out by way
of presenting documentary exhibits, (from Exhibit AAA
to HHH), are not subject of this report and
recommendation.
RECOMMENDATION:
The charge of GROSS IMMORALITY and DECEITFUL
CONDUCT have not been proven, but the undersigned
believes evidence is sufficient to sustain

pronouncement of guilt on two counts of

CORRUPTION, namely: acting as notary public and
collecting fees for his services in preparing affidavit of
desistance of a case in his Court. Likewise, acts of
oppression, deceit and false imputation against his
Clerk of Court are found duly established.
WHEREFORE, suspension of the respondent Judge
from the service for a period of three months is
recommended.
THE FOREGOING CONSIDERED, We hold the respondent
culpable for gross immorality, he having scandalously and
openly cohabited with the said Priscilla Baybayan during the
existence of his marriage with Teresita B. Tabiliran.
Contrary to his protestations that he started to cohabit with
Priscilla Baybayan only after his first wife, Teresita Tabiliran,
had long abandoned him and the conjugal home in 1966, it
appears from the record that he had been scandalously and
openly living with said Priscilla Baybayan as early as 1970 as
shown by the fact that he begot three children by her, namely
Buenasol, Venus and Saturn, all surnamed Tabiliran. Buenasol
was born on July 14, 1970; Venus was born on September 7,
1971; while Saturn was born on September 20, 1975.
Evidently, therefore, respondent and Priscilla Baybayan had
openly lived together even while respondent's marriage to his
first wife was still valid and subsisting. The provisions of Sec.
3(w) of the Rules of Court and Art. 390 of the Civil Code which
provide that, after an absence of seven years, it being
unknown whether or not the absentee still lives, the absent
spouse shall be considered dead for all purposes, except for
those of succession, cannot be invoked by respondent. By
respondent's own allegation, Teresita B. Tabiliran left the
conjugal home in 1966. From that time on up to the time that
respondent started to cohabit with Priscilla Baybayan in 1970,

37
only four years had elapsed. Respondent had no right to
presume therefore that Teresita B. Tabiliran was already dead
for all purposes. Thus, respondent's actuation of cohabiting
with Priscilla Baybayan in 1970 when his marriage to Teresita
B. Tabiliran was still valid and subsisting constitutes gross
immoral conduct. It makes mockery of the inviolability and
sanctity of marriage as a basic social institution. According to
Justice Malcolm: "The basis of human society throughout the
civilized world is that of marriage. It is not only a civil contract,
but is a new relation, an institution on the maintenance of
which the public is deeply interested. Consequently, every
intendment of the law leans toward legalizing matrimony."
(Civil Code 1993 Ed., Volume 1, p. 122, Ramon C. Aquino).
By committing the immorality in question, respondent violated
the trust reposed on his high office and utterly failed to live up
to the noble ideals and strict standards of morality required of
the law profession. (Imbing v. Tiongson, 229 SCRA 690).
As to respondent's act of eventually marrying Priscilla
Baybayan in 1986, We are not in a position to determine the
legality thereof, absent all the facts for a proper determination.
Sufficient for Our consideration is the finding of the
Investigating Judge, that the said marriage is authorized under
Art. 83 (2) of the Civil Code.
With respect to the charge of deceitful conduct, We hold that
the charge has likewise been duly established. An examination
of the birth certificates (Exhs. "J", "L", & "M") of respondent's
three illegitimate children with Priscilla Baybayan clearly
indicate that these children are his legitimate issues. It was
respondent who caused the entry therein. It is important to
note that these children, namely, Buenasol, Venus and Saturn,
all surnamed Tabiliran, were born in the year 1970, 1971, and
1975, respectively, and prior to the marriage of respondent to
Priscilla, which was in 1986. As a lawyer and a judge,

respondent ought to know that, despite his subsequent

marriage to Priscilla, these three children cannot be
legitimated nor in any way be considered legitimate since at
the time they were born, there was an existing valid marriage
between respondent and his first wife, Teresita B. Tabiliran.
The applicable legal provision in the case at bar is Article 269
of the Civil Code of the Philippines (R.A. 386 as amended)
which provides:
Art. 269. Only natural children can be legitimated.
Children 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,
are natural.
Legitimation is limited to natural children and cannot include
those born of adulterous relations (Ramirez vs. Gmur, 42 Phil.
855). The Family Code: (Executive Order, No. 209), which took
effect on August 3, 1988, reiterated the above-mentioned
provision thus:
Art. 177. Only 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.
The reasons for this limitation are given as follows:
1) The rationale of legitimation would be destroyed;
2) It would be unfair to the legitimate children in terms
of successional rights;
3) There will be the problem of public scandal, unless
social mores change;

38
4) It is too violent to grant the privilege of legitimation to
adulterous children as it will destroy the sanctity of
marriage;

found culpable for two counts of corruption: (1) acting as

Notary Public; and (2) collecting legal fees in preparing an
Affidavit of Desistance of a case in his court.

5) It will be very scandalous, especially if the parents

marry many years after the birth of the child. (The
Family Code, p. 252, Alicia v. Sempio Diy).

Respondent himself admitted that he prepared and notarized

the documents (Annexes "C", "D", "E", "F" and "G") wherein he
charged notarial fees. Though he was legally allowed to
notarize documents and charge fees therefor due to the fact
that there has been no Notary Public in the town of Manukan,
this defense is not sufficient to justify his otherwise corrupt and
illegal acts.

It is clear, therefore, that no legal provision, whether old or

new, can give refuge to the deceitful actuations of the
respondent.
It is also erroneous for respondent to state that his first wife
Teresita disappeared in 1966 and has not been heard from
since then. It appears that on December 8, 1969, Teresita filed
a complaint against respondent entitled,Tabiliran vs.
Tabiliran (G.R. No. 1155451) which was decided by this Court
in 1982. In the said case, respondent was sued for
abandonment of his family home and for living with another
woman with whom he allegedly begot a child. Respondent
was, however, exonerated because of the failure of his wife to
substantiate the charges. However, respondent was
reprimanded for having executed a "Deed of Settlement of
Spouses To Live Separately from Bed", with a stipulation that
they allow each of the other spouse to live with another man or
woman as the case may be, without the objection and
intervention of the other. It was also in the same case where
respondent declared that he has only two children, namely,
Reynald Antonio and Jose III, both surnamed Tabiliran, who
are his legitimate issues. Thus, his statements in his affidavits
marked as Exhs. "M-4" and "O-4" that Saturn and Venus are
his third and second children respectively, are erroneous,
deceitful, misleading and detrimental to his legitimate children.
With respect to the charge of corruption, We agree with the
findings of the Investigating Judge that respondent should be

Section 252 of the Notarial Law expressly provides thus:

Sec. 252. Compensation of Notaries Public No fee,
compensation, or reward of any sort, except such as is
expressly prescribed and allowed by law, shall be
collected or received for any service rendered by a
notary public. Such money collected by notaries public
proper shall belong to them personally. Officers acting
as notaries public ex-officio shall charge for their
services the fees prescribed by law and account
therefor as for Government funds. (Notarial Law,
Revised Administrative Code of the Philippines, p.
202.)
Respondent's failure to properly account and turn over
the fees collected by him as Ex-Officio notary to the
municipal government as required by law raises the
presumption that he had put such fund to his personal
use.
With respect to the charge that respondent prepared an
Affidavit of Desistance in a rape case filed before his sala for
which he collected the amount of P500.00 from the
complainant therein, respondent merely denied the said

39
imputation but failed to offer any evidence to support such
denial. Denial, if unsubstantiated by clear and convincing
evidence, is a negative and self-serving evidence which
deserves no weight in law and cannot be given greater
evidentiary value over the testimony of credible witnesses who
testify on affirmative matters (People v. Amaguin, 229 SCRA
166). It is unfortunate that respondent had failed to adhere to,
and let this remind him once again of Canon 2 of the Code of
Judicial Conduct, to wit:
Canon 2
A judge should avoid impropriety and the appearance
of impropriety in all activities.
WHEREFORE, the Court finds respondent Judge Jose C.
Tabiliran, Jr. guilty of gross immorality, deceitful conduct and
corruption and, consequently, orders his dismissal from the
service. Such dismissal shall carry with it cancellation of
eligibility, forfeiture of leave credits and retirement benefits,
and disqualification from re-employment in the governmentservice, all without prejudice to criminal or civil liability.
SO ORDERED.

SECOND DIVISION

G.R. No. 92326 January 24, 1992

REPUBLIC OF THE PHILIPPINES, petitioner,
vs.

COURT OF APPEALS and ZENAIDA C.

BOBILES, respondents.
The Solicitor General for petitioner.
Mariano B. Miranda for private respondent.

REGALADO, J.:
Dissatisfied with the decision of respondent Court of Appeals
promulgated on February 20, 1990 1 which affirmed in toto the
decision of Branch 2 of the Regional Trial Court of Legaspi
City 2 granting the petition of herein private respondent to
adopt the minor Jason Condat, petitioner seeks the reversal
thereof in the present petition for review on certiorari.
On February 2, 1988, Zenaida Corteza Bobiles filed a petition
to adopt Jason Condat, then six (6) years old and who had
been living with her family since he was four (4) months old,
before the Regional Trial Court of Legaspi City, docketed
therein as Special Proceeding No. 1386. 3
The court a quo, finding the petition to be sufficient in form and
substance, issued an order dated February 15, 1988 setting
the petition for hearing on March 28, 1988. 4 The order was
duly published, with copies thereof seasonably served on the
Solicitor General; Assistant Provincial Fiscal Mediavillo, Jr. of
Albay; Salvador Condat, father of the child; and the social
worker assigned to the court. A copy of said order was posted
on the bulletin board of the court and in the other places it had
required for that purpose. Nobody appeared to oppose the
petition. 5

40
Compliance with the jurisdictional requirements having been
proved at the hearing, the testimonies of herein private
respondent, together with that of her husband, Dioscoro
Bobiles, and one Ma. Luz Salameno of the Department of
Social Welfare and Development were taken and admitted in
the proceedings.
On March 20, 1988, the trial court rendered judgment
disposing as follows:
ACCORDINGLY, it is declared that henceforth, the
minor child, JASON CONDAT, be freed from all legal
obligations of obedience and maintenance with respect
to his natural parents, and be, to all intents and
purposes, the child of the spouses Dioscoro and
Zenaida Bobiles, and the surname of the child be
changed to "Bobiles" which is the surname of the
petitioner.
Furnish the Office of the Solicitor General, Manila, the
Department of Social Welfare and Development,
Regional Office, Region V, Legaspi City, and the Local
Civil Registrar of Tiwi, Albay, with copies of this
decision. 6
Herein petitioner appealed to the Court of Appeals which, as
earlier stated, affirmed the aforesaid decision of the court
below. Hence, this present petition with the following
assignment of errors:
1. The Honorable Court of Appeals erred in ruling that
the Family Code cannot be applied retroactively to the
petition for adoption filed by Zenaida C. Bobiles; and
2 The Honorable Court of Appeals erred in affirming the
trial court's decision which granted the petition to adopt

Jason Condat in favor of spouses Dioscoro Bobiles and

Zenaida C. Bobiles. 7
The petition for adoption was filed by private respondent
Zenaida C. Bobiles on February 2, 1988, when the law
applicable was Presidential Decree No. 603, the Child and
Youth Welfare Code. Under said code, a petition for adoption
may be filed by either of the spouses or by both of them.
However, after the trial court rendered its decision and while
the case was pending on appeal in the Court of Appeals,
Executive Order No. 209, the Family Code, took effect on
August 3, 1988. Under the said new law, joint adoption by
husband and wife is mandatory.
On the foregoing consideration, petitioner contends that the
petition for adoption should be dismissed outright for it was
filed solely by private respondent without joining her husband,
in violation of Article 185 of the Family Code which requires
joint adoption by the spouses. It argues that the Family Code
must be applied retroactively to the petition filed by Mrs.
Bobiles, as the latter did not acquire a vested right to adopt
Jason Condat by the mere filing of her petition for adoption.
We are not persuaded.
Preliminarily, we observe that petitioner's theory implies that
the non-inclusion of Dioscoro Bobiles as a co-petitioner is a
jurisdictional defect, hence its prayer for an outright dismissal
on that score. It could not be taking exception only on the
ground of non-joinder since petitioner must be aware that nonjoinder is not a ground for the dismissal of an action or a
special proceeding. 8 We further apprehend that this objection
has been raised for the first time on appeal in respondent
court. Nonetheless, we shall clarify petitioner's misgivings as
postulated in its aforestated assignment of errors.

41
Article 246 of the Family Code provides for retroactive effect of
appropriate relevant provisions thereof, subject to the
qualification that such retrospective application
will not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws.
A vested right is one whose existence, effectivity and extent
does not depend upon events foreign to the will of the
holder. 9 The term expresses the concept of present fixed
interest which in right reason and natural justice should be
protected against arbitrary State action, or an innately just and
imperative right which enlightened free society, sensitive to
inherent and irrefragable individual rights, cannot
deny. 10 Vested rights include not only legal or equitable title to
the enforcement of a demand, but also an exemption from new
obligations created after the right has vested. 11
Under the Child and Youth Welfare Code, private respondent
had the right to file a petition for adoption by herself, without
joining her husband therein. When Mrs. Bobiles filed her
petition, she was exercising her explicit and unconditional right
under said law. Upon her filing thereof, her right to file such
petition alone and to have the same proceed to final
adjudication, in accordance with the law in force at the time,
was already vested and cannot be prejudiced or impaired by
the enactment of a new law.
When private respondent filed her petition in Special
Proceeding No. 1386, the trial court acquired jurisdiction
thereover in accordance with the governing law. Jurisdiction
being a matter of substantive law, the established rule is that
the jurisdiction of the court is determined by the statute in force
at the time of the commencement of the action. 12 We do not
find in the present case such facts as would constitute it as an
exception to the rule.

The first error assigned by petitioner warrants a review of

applicable local and foreign jurisprudence. For that purpose,
we start with the premise that Article 185 of the Family Code is
remedial in nature. Procedural statutes are ordinarily accorded
a retrospective construction in the sense that they may be
applied to pending actions and proceedings, as well as to
future actions. However, they will not be so applied as to
defeat procedural steps completed before their enactment. 13
Procedural matters are governed by the law in force when they
arise, and procedural statutes are generally retroactive in that
they apply to pending proceedings and are not confined to
those begun after their enactment although, with respect to
such pending proceedings, they affect only procedural steps
taken after their enactment. 14
The rule that a statutory change in matters of procedure will
affect pending actions and proceedings, unless the language
of the act excludes them from its operation, is not so extensive
that it may be used to validate or invalidate proceedings taken
before it goes into effect, since procedure must be governed
by the law regulating it at the time the question of procedure
arises. 15
The jurisdictional, as distinguished from the purely procedural,
aspect of a case is substantive in nature and is subject to a
more stringent rule. A petition cannot be dismissed by reason
of failure to comply with a law which was not yet in force and
effect at the time. As long as the petition for adoption was
sufficient in form and substance in accordance with the law in
governance at the time it was filed, the court acquires
jurisdiction and retains it until it fully disposes of the case. 16 To
repeat, the jurisdiction of the court is determined by the statute
in force at the time of the commencement of the action. Such
jurisdiction of a court, whether in criminal or civil cases, once it
attaches cannot be ousted by subsequent happenings or

42
events, although of a character which would have prevented
jurisdiction from attaching in the first instance. 17
On the second issue, petitioner argues that, even assuming
that the Family Code should not apply retroactively, the Court
of Appeals should have modified the trial court's decision by
granting the adoption in favor of private respondent Zenaida C.
Bobiles only, her husband not being a petitioner. We do not
consider this as a tenable position and, accordingly, reject the
same.
Although Dioscoro Bobiles was not named as one of the
petitioners in the petition for adoption filed by his wife, his
affidavit of consent, attached to the petition as Annex "B" and
expressly made an integral part thereof, shows that he himself
actually joined his wife in adopting the child. The pertinent
parts of his written consent read as follows:
xxx xxx xxx
2. That my wife, ZENAIDA O. CORTEZA BOBILES and
I mutually desire to adopt as our child, a boy named
JASON CONDAT, still a minor being six (6) years old,
likewise residing at 18 C. Imperial Street, Legaspi City,
Albay, also in the Philippines;
3. That we are filing the corresponding Petition for
Adoption of said minor child, JASON CONDAT, before
the Juvenile and Domestic Relations court, now the
Regional Trial Court in Legaspi City, Albay in the
Philippines;
4. That I, Dioscoro C. Bobiles as the husband and
father, am giving my lawful consent to this adoption of
said minor child, JASON CONDAT;

5. That further, my wife ZENAIDA O. CORTEZA

BOBILES, and I have continuously reared and cared
for this minor child, JASON CONDAT since birth;
6. That as a result thereof, my wife and I have
developed a kind of maternal and paternal love for the
boy as our very own, exercising therein the care,
concern and diligence of a good father toward him;
7. That I am executing this document, an AFFIDAVIT
OF CONSENT for whatever it is worth in the premises
as to the matter of adoption of this minor child, JASON
CONDAT, by my wife ZENAIDA O. CORTEZA
BOBILES and by me, DIOSCORO C. BOBILES, in any
court of justice; (Emphasis supplied.) 18
xxx xxx xxx
The foregoing declarations, and his subsequent confirmatory
testimony in open court, are sufficient to make him a copetitioner. Under the circumstances then obtaining, and by
reason of his foreign residence, he must have yielded to the
legal advice that an affidavit of consent on his part sufficed to
make him a party to the petition. This is evident from the text of
his affidavit. Punctiliousness in language and pedantry in the
formal requirements should yield to and be eschewed in the
higher considerations of substantial justice. The future of an
innocent child must not be compromised by arbitrary
insistence of rigid adherence to procedural rules on the form of
pleadings.
We see no reason why the following doctrines in American law
should not apply to this case and, for that matter, in our
jurisdiction. It is a settled rule therein that adoption statutes, as
well as matters of procedure leading up to adoption, should be
liberally construed to carry out the beneficent purposes of the

43
adoption institution and to protect the adopted child in the
rights and privileges coming to it as a result of the
adoption. 19 The modern tendency of the courts is to hold that
there need not be more than a substantial compliance with
statutory requirements to sustain the validity of the proceeding;
to refuse would be to indulge in such a narrow and technical
construction of the statute as to defeat its intention and
beneficial results or to invalidate proceedings where every
material requirement of the statute was complied with.
In support of this rule it is said that it is not the duty of the
courts to bring the judicial microscope to bear upon the case in
order that every slight defect may be enlarged and magnified
so that a reason may be found for declaring invalid an act
consummated years before, but rather to approach the case
with the inclination to uphold such acts if it is found that there
was a substantial compliance with the statute. 20 The technical
rules of pleading should not be stringently applied to adoption
proceedings, and it is deemed more important that the petition
should contain facts relating to the child and its parents, which
may give information to those interested, than that it should be
formally correct as a pleading. Accordingly, it is generally held
that a petition will confer jurisdiction if it substantially complies
with the adoption statute, alleging all facts necessary to give
the court jurisdiction. 21
In determining whether or not to set aside the decree of
adoption the interests and welfare of the child are of primary
and paramount consideration. 22 The welfare of a child is of
paramount consideration in proceedings involving its custody
and the propriety of its adoption by another, and the courts to
which the application for adoption is made is charged with the
duty of protecting the child and its interests and, to bring those
interests fully before it, it has authority to make rules to
accomplish that end. 23 Ordinarily, the approval of the adoption
rests in the sound discretion of the court. This discretion

should be exercised in accordance with the best interests of

the child, as long as the natural rights of the parents over the
child are not disregarded. In the absence of a showing of
grave abuse, the exercise of this discretion by the approving
official will not be disturbed. 24
In the case at bar, the rights concomitant to and conferred by
the decree of adoption will be for the best interests of the child.
His adoption is with the consent of his natural parents. 25 The
representative of the Department of Social Welfare and
Development unqualifiedly recommended the approval of the
petition for adoption 26 and the trial court dispensed with the
trial custody for several commendatory reasons, especially
since the child had been living with the adopting parents since
infancy. 27 Further, the said petition was with the sworn written
consent of the children of the adopters.
The trial court and respondent court acted correctly in granting
the petition for adoption and we find no reason to disturb the
same. As found and aptly stated by respondent court: "Given
the facts and circumstances of the case and considered in the
light of the foregoing doctrine, 28 We are of the opinion and so
hold that the decree of adoption issued by the court a
quo would go a long way towards promoting the welfare of the
child and the enhancement of his opportunities for a useful
and happy life." 29
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 in
the person of the adopted, 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

44
reasonable intendment should be sustained to promote and
fulfill these noble and compassionate objectives of the law. 30
WHEREFORE, the instant petition is hereby DENIED.

12 People vs. Paderna, 22 SCRA 273 (1968);

People vs. Mariano, et al., 71 SCRA 600
(1976); Lee, et al. vs. Presiding Judge, etc., et
al., 145 SCRA 408 (1986); Atlas Fertilizer Corp.
vs. Navarro, etc., et al., 149 SCRA 432 (1987).

SO ORDERED.

13 82 C.J.S., Statutes, 998.

Melencio-Herrera, Paras, Padilla and Nocon, JJ., concur.

14 Cohen vs. Reckseit, 53 N.Y.S. 2d 365, 184

Misc. 107.

Footnotes
1 Penned by Justice Oscar M. Herrera, with
Justices Jose C. Campos, Jr. and Asaali S.
Isnani concurring, in CA-G.R. CV No. 17911.
2 Per Judge Angel M. Alegre in Sp. Proc. No.
1386.
3 Rollo, 15.
4 Original Record, 8.
5 Rollo, 18.
6 Ibid., 25-26.
7 Ibid., 6.
8 Sec. 11, Rule 3, in relation to Sec. 2, Rule 72,
Rules of Court.
9 J.B.L. Reyes and R.C. Puno, Outline of
Philippine Civil Law, 15 (1964).
10 Ayog, et al., vs. Cusi, etc., et al., 118 SCRA
492, 499 (1982).
11 16A Am Jur 2d, Constitutional Law, 651.

15 People ex rel. Central New England Ry. Co.

vs. State Tax Commission, 26 N.Y.S. 2d 425,
261 App. Div. 416; Mich.-Clugston vs. Rogers,
169 N.W. 9, 10, 203 Mich. 339.
16 Republic vs. Pielago, G.R. No. 72218,
Resolution, July 21, 1986.
17 Ramos, et al., vs. Central Bank of the
Philippines, 41 SCRA 565 (1971), and cases
therein cited.
18 Original Record, 4. This was executed on
October 17, 1987 in Chicago, Illinois, U.S.A.
where he was then residing due to his
employment in the Saint Francis Hospital there,
and was duly authenticated in the Philippine
Consulate General in that city.
19 2 Am Jur 2d, Adoption, 865.
20 Ibid., id., 900.
21 2 C.J.S., Adoption of Children, 418.
22 2 Am Jur 2d, Adoption, 910.
23 Ibid., id., 907.
24 2 C.J.S., Adoption of Children, 412.
25 Original Record, 3.

45
26 TSN, March 28, 1988, 7.
27 Rollo, 21-22.
28 Citing Daoang vs. Municipal Judge of San
Nicolas, Ilocos Norte, 159 SCRA 369 (1988).

FIRST DIVISION

29 Rollo, 29.
30 Bobanovic, et al. vs. Montes, etc., et al., 142
SCRA 485 (1986).

DIWATA RAMOS LANDINGIN

Petitioner,

versus -

G.R. No. 164948

Present

PANGANIBAN, C.J., Chairperson,

YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ.

REPUBLIC OF THE PHILIPPINES,

Promulgated:
Respondent.
June 27, 2006
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION
CALLEJO, SR., J.:
Assailed in this petition for review on certiorari under Rule 45 of the
Rules of Court is the Decision[1] of the Court of Appeals in CA-G.R.
CV No. 77826 which reversed the Decision [2] 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

46
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 petition[3] 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, petitioners 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 consent [8] 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 consent[9] to the adoption of the minors. Petitioners brother,
Mariano Ramos, who earns substantial income, signified his
willingness and commitment to support the minors while in
petitioners 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 childrens
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 appearance [12] 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:

47
1.

2.

3.

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.
The three minors subject for adoption
have also expressed their willingness to
be adopted 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.
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]

48
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 RamosLandingin.
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 appealed[20] the decision to the Court of Appeals
on December 2, 2002. In its brief[21] 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
PETITIONERS CHILDREN AS REQUIRED BY
LAW.
III
THE TRIAL COURT ERRED IN GRANTING THE
PETITION
FOR
ADOPTION
DESPITE
PETITIONERS FAILURE TO ESTABLISH THAT
SHE IS IN A POSITION TO SUPPORT THE
PROPOSED ADOPTEES.
On April 29, 2004, the CA rendered a decision [22] reversing
the ruling of the RTC. It held that petitioner failed to adduce in
evidence the voluntary consent of Amelia Ramos, the childrens
natural mother. Moreover, the affidavit of consent of the petitioners
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 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.

49
SO ORDERED.[23]
The petition is denied for lack of merit.
Petitioner filed a Motion for Reconsideration [24] 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 certiorari[26] 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
[27]
CHILDREN.
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-adopters children sufficiently complies
with the law; and (c) whether or not petitioner is financially capable
of supporting the adoptees.

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 Courts 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 Courts Ruling

50
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 latters
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]
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.
Petitioner, nonetheless, argues that the written consent of the
biological mother is no longer necessary because when Amelias
husband died in 1990, she left forItaly and never came back. The
children were then left to the guidance and care of their paternal
grandmother. It is the paternal relatives, including petitioner, who
provided for the childrens financial needs. Hence, Amelia, the
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 was pending with the RTC that Amelia and
her child by her second marriage were on vacation in
thePhilippines. Pagbilao, the DSWD social worker, was able to meet
her, and during the meeting, Amelia intimated to the social worker
that she conformed to the adoption of her three children by the
petitioner.
Petitioners contention must be rejected. When she filed her
petition with the trial court, Rep. Act No. 8552 was already in
effect. Section 9 thereof provides that if the written consent of the
biological parents cannot be obtained, the written consent of the legal
guardian of the 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 of their legal guardian.

51
Ordinarily, abandonment by a parent to justify the adoption
of his child without his consent, is a conduct which evinces a settled
purpose to forego all parental duties. [33] The term means neglect and
refusal to perform the filial and legal obligations of love and
support. If a parent withholds presence, love, care, the opportunity to
display filial affection, and neglects to lend support and maintenance,
the parent, in effect, abandons the child.[34]

A From others who came from Italy, sir.

Q Did you come to know whether she has children
by her second marriage?
A Yes, sir, she got two kids.[37]
Elaine, the eldest of the minors, testified, thus:

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. Petitioners 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?
A None, sir.
Q How about with her children?
A None, sir.
Q Do you know what place in Italy did she reside?
A I do not know, sir.
Q Did you receive any news about Amelia Ramos?
A What I know, sir, was that she was already
married with another man.
Q From whom did you learn that?

Q Where is your mother now?

A In Italy, sir.
Q When did your mother left for Italy?
A After my father died, sir.
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

52
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]

mother-in-law who returned home for good,

however she died on November 2000.

xxxx

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.

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 petitioneraunt.[40]

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]

xxxx
V.

Background Information about the

Minors Being Sought for Adoption:

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 husbands 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

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

53
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 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 Pagbilaos 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 petitioners children[45] 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, charg 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, charg 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

54
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 petitioners 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 Report [49] 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. Petitioners 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.
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
petitioners 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.

55
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,
hereby DENIED.

premises

considered,

the

petition

is

[9]

Id. at 24.

[10]

Id. at 3.

[11]

Id. at 21.

[12]

Id. at 40.

[13]

Id. at 41.

[14]

Id. at 22.

[15]

Supra note 8.

[16]

Supra note 9.

[17]

Records, pp. 43-47.

[18]

Id. at 47.

[19]

CA rollo, p. 27-28.

[20]

Records, p. 78.

[21]

CA rollo, p. 15.

[22]

Rollo, p. 23-35.

[23]

Id. at 35.

[24]

CA rollo, p. 55.

[25]

Rollo, p. 22.

[26]

Id. at 3-20.

SO ORDERED.
ROMEO J. CALLEJO, SR.
Associate Justice

[1]

Penned by Associate Justice Remedios A. Salazar-Fernando, with

Associate Justices Mario L. Guaria III and Lucas P. Bersamin,
concurring; rollo, pp. 23-35.
[2]

CA rollo, p. 25.

[3]

Records, pp. 1-4. The Rule on Adoption was approved by the

Court in A.M. No. 02-6-02-SC and took effect on August 22, 2002.
[4]

Id. at 6.

[5]

Id. at 7.

[6]

Id. at 8.

[7]

Id. at 5.

[8]

Id. at 9.

56
[27]

Id. at 5.

[28]

153 Phil. 339 (1973).

[29]

[30]

[31]

[32]

[44]

Republic v. Sandiganbayan, G.R. Nos. 112708-09, March 29,

1996, 255 SCRA 438.
[45]

Supra note 9.

[46]

Enacted on January 26, 1912.

[47]

RULES OF COURT, Rule 132-B, Section 20.

[48]

Rollo, p. 34.

[49]

Records, pp. 62-73.

Id. at 346-347.
G.R. No. 105308, September 25, 1998, 296 SCRA 128.
Id. at 157.
Re Adoption of Cannon, 243 Iowa 828, 53 N.W.2d 877.

[33]

Matter of Adoption of Eder, 312 Or. 244, 821 P.2d 400 (1991).

[34]

In Re: McLean, 179 N.Y.S. 182,183, 109 Misc. 479.

[35]

Truelove v. Parker, 132, S.G. 251, 191 N.C. 430.

[36]

Slattery v. Hartford v. Connecticut Trust Co., 254 Mich. 671, 236

N.W. 902 (1931).
[37]

TSN, April 4, 2002, pp. 9-10.

[38]

Id. at 21.

[39]

Records, p. 44.

[40]

Id. at 45.

[41]

Id. at 46.

[42]

Republic Act No. 8552, Sec. 16.

[43]

Cang v. Court of Appeals, supra note 30, at 153.

57
FIRST DIVISION

G.R. Nos. 89224-25 January 23, 1992

MAURICIO SAYSON, ROSARIO SAYSON-MALONDA,
BASILISA SAYSON-LIRIO, REMEDIOS SAYSON-REYES
and JUANA C. BAUTISTA, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, DELIA SAYSON,
assisted by her husband, CIRILO CEDO, JR., EDMUNDO
SAYSON AND DORIBEL SAYSON, respondents.

CRUZ, J.:
At issue in this case is the status of the private respondents
and their capacity to inherit from their alleged parents and
grandparents. The petitioners deny them that right, asserting if
for themselves to the exclusion of all others.
The relevant genealogical facts are as follows.
Eleno and Rafaela Sayson begot five children, namely,
Mauricio, Rosario, Basilisa, Remedios and Teodoro. Eleno
died on November 10, 1952, and Rafaela on May 15, 1976.
Teodoro, who had married Isabel Bautista, died on March 23,
1972. His wife died nine years later, on March 26, 1981. Their
properties were left in the possession of Delia, Edmundo, and
Doribel, all surnamed Sayson, who claim to be their children.
On April 25, 1983, Mauricio, Rosario, Basilisa, and Remedios,
together with Juana C. Bautista, Isabel's mother, filed a
complaint for partition and accounting of the intestate estate of

Teodoro and Isabel Sayson. It was docketed as Civil Case No.

1030 in Branch 13 of the Regional Trial Court of Albay. The
action was resisted by Delia, Edmundo and Doribel Sayson,
who alleged successional rights to the disputed estate as the
decedents' lawful descendants.
On July 11, 1983, Delia, Edmundo and Doribel filed their own
complaint, this time for the accounting and partition of the
intestate estate of Eleno and Rafaela Sayson, against the
couple's four surviving children. This was docketed as Civil
Case No. 1042 in the Regional Trial Court of Albay, Branch 12.
The complainants asserted the defense they raised in Civil
Case No. 1030, to wit, that Delia and Edmundo were the
adopted children and Doribel was the legitimate daughter of
Teodoro and Isabel. As such, they were entitled to inherit
Teodoro's share in his parents' estate by right of
representation.
Both cases were decided in favor of the herein private
respondents on the basis of practically the same evidence.
Judge Rafael P. Santelices declared in his decision dated May
26,
1986, 1 that Delia and Edmundo were the legally adopted
children of Teodoro and Isabel Sayson by virtue of the decree
of adoption dated March 9, 1967. 2 Doribel was their legitimate
daughter as evidenced by her birth certificate dated February
27, 1967. 3 Consequently, the three children were entitled to
inherit from Eleno and Rafaela by right of representation.
In his decision dated September 30, 1986, 4 Judge Jose S.
Saez dismissed Civil Case No. 1030, holding that the
defendants, being the legitimate heirs of Teodoro and Isabel as
established by the aforementioned evidence, excluded the
plaintiffs from sharing in their estate.

58
Both cases were appealed to the Court of Appeals, where they
were consolidated. In its own decision dated February 28,
1989, 5 the respondent court disposed as follows:
WHEREFORE, in Civil Case No. 1030 (CA-G.R. No.
11541), the appealed decision is hereby AFFIRMED. In
Civil case No. 1042 (CA-G.R. No. 12364), the appealed
decision is MODIFIED in that Delia and Edmundo
Sayson are disqualified from inheriting from the estate
of the deceased spouses Eleno and Rafaela Sayson,
but is affirmed in all other respects.
SO ORDERED.
That judgment is now before us in this petition for review
by certiorari. Reversal of the respondent court is sought on the
ground that it disregarded the evidence of the petitioners and
misapplied the pertinent law and jurisprudence when it
declared the private respondents as the exclusive heirs of
Teodoro and Isabel Sayson.
The contention of the petitioners is that Delia and Edmundo
were not legally adopted because Doribel had already been
born on February 27, 1967, when the decree of adoption was
issued on March 9, 1967. The birth of Doribel disqualified her
parents from adopting. The pertinent provision is Article 335 of
the Civil Code, naming among those who cannot adopt "(1)
Those who have legitimate, legitimated, acknowledged natural
children, or natural children by legal fiction."
Curiously enough, the petitioners also argue that Doribel
herself is not the legitimate daughter of Teodoro and Isabel but
was in fact born to one Edita Abila, who manifested in a
petition for guardianship of the child that she was her natural
mother. 6

The inconsistency of this position is immediately apparent. The

petitioners seek to annul the adoption of Delia and Edmundo
on the ground that Teodoro and Isabel already had a legitimate
daughter at the time but in the same breath try to demolish this
argument by denying that Doribel was born to the couple.
On top of this, there is the vital question of timeliness. It is too
late now to challenge the decree of adoption, years after it
became final and executory. That was way back in
1967. 7 Assuming the the petitioners were proper parties, what
they should have done was seasonably appeal the decree of
adoption, pointing to the birth of Doribel that disqualified
Teodoro and Isabel from adopting Delia and Edmundo. They
did not. In fact, they should have done this earlier, before the
decree of adoption was issued. They did not, although
Mauricio claimed he had personal knowledge of such birth.
As the respondent court correctly observed:
When Doribel was born on February 27, 1967, or about
TEN (10) days before the issuance of the Order of
Adoption, the petitioners could have notified the court
about the fact of birth of DORIBEL and perhaps
withdrew the petition or perhaps petitioners could have
filed a petition for the revocation or rescission of the
adoption (although the birth of a child is not one of
those provided by law for the revocation or rescission
of an adoption). The court is of the considered opinion
that the adoption of the plaintiffs DELIA and
EDMUNDO SAYSON is valid, outstanding and binding
to the present, the same not having been revoked or
rescinded.
Not having any information of Doribel's birth to Teodoro and
Isabel Sayson, the trial judge cannot be faulted for granting the

59
petition for adoption on the finding inter alia that the adopting
parents were not disqualified.
A no less important argument against the petitioners is that
their challenge to the validity of the adoption cannot be made
collaterally, as in their action for partition, but in a direct
proceeding frontally addressing the issue.
The settled rule is that a finding that the requisite
jurisdictional facts exists, whether erroneous or
not,cannot be questioned in a collateral proceeding, for
a presumption arises in such cases where the validity
of the judgment is thus attacked that the necessary
jurisdictional facts were proven [Freeman on
Judgments, Vol. I, Sec. 350, pp. 719-720]. (Emphasis
supplied.)
In the case of Santos v. Aranzanso, 8 this Court declared:
Anent this point, the rulings are summed up in 2
American Jurisprudence, 2nd Series, Adoption, Sec.
75, p. 922, thus:
An adoption order implies the finding of the
necessary facts and the burden of proof is on the
party attacking it; it cannot be considered void
merely because the fact needed to show statutory
compliance is obscure. While a judicial
determination of some particular fact, such as the
abandonment of his next of kin to the adoption,
may be essential to the exercise of jurisdiction to
enter the order of adoption, this does not make it
essential to the jurisdictional validity of the decree
that the fact be determined upon proper evidence,
or necessarily in accordance with the truth; a mere
error cannot affect the jurisdiction, and the

determination must stand until reversed on appeal,

and hence cannot be collaterally attacked. If this
were not the rule, the status of adopted children
would always be uncertain, since the evidence
might not be the same at all investigations, and
might be regarded with different effect by different
tribunals, and the adoption might be held by one
court to have been valid, while another court would
hold it to have been of no avail. (Emphasis
supplied.)
On the question of Doribel's legitimacy, we hold that the
findings of the trial courts as affirmed by the respondent court
must be sustained. Doribel's birth certificate is a formidable
piece of evidence. It is one of the prescribed means of
recognition under Article 265 of the Civil Code and Article 172
of the Family Code. It is true, as the petitioners stress, that the
birth certificate offers only prima facie evidence 9 of filiation
and may be refuted by contrary evidence. However, such
evidence is lacking in the case at bar.
Mauricio's testimony that he was present when Doribel was
born to Edita Abila was understandbly suspect, coming as it
did from an interested party. The affidavit of Abila 10 denying
her earlier statement in the petition for the guardianship of
Doribel is of course hearsay, let alone the fact that it was never
offered in evidence in the lower courts. Even without it,
however, the birth certificate must be upheld in line
with Legaspi v. Court of Appeals, 11 where we ruled that "the
evidentiary nature of public documents must be sustained in
the absence of strong, complete and conclusive proof of its
falsity or nullity."
Another reason why the petitioners' challenge must fail is the
impropriety of the present proceedings for that purpose.
Doribel's legitimacy cannot be questioned in a complaint for

60
partition and accounting but in a direct action seasonably filed
by the proper party.
The presumption of legitimacy in the Civil Code . . .
does not have this purely evidential character. It serves
a more fundamental purpose. It 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. . . . 12 (Emphasis supplied.)
In consequence of the above observations, we hold that
Doribel, as the legitimate daughter of Teodoro and Isabel
Sayson, and Delia and Edmundo, as their adopted children,
are the exclusive heirs to the intestate estate of the deceased
couple, conformably to the following Article 979 of the Civil
Code:
Art. 979. Legitimate children and their descendants
succeed the parents and other ascendants, without
distinction as to sex or age, and even if they should
come from different marriages.
An adopted child succeeds to the property of the
adopting parents in the same manner as a legitimate
child.
The philosophy underlying this article is that a person's love
descends first to his children and grandchildren before it
ascends to his parents and thereafter spreads among his
collateral relatives. It is also supposed that one of his purposes

in acquiring properties is to leave them eventually to his

children as a token of his love for them and as a provision for
their continued care even after he is gone from this earth.
Coming now to the right of representation, we stress first the
following pertinent provisions of the Civil Code:
Art. 970. Representation is a right created by fiction of
law, by virtue of which the representative is raised to
the place and the degree of the person represented,
and acquires the rights which the latter would have if
he were living or if he could have inherited.
Art. 971. The representative is called to the succession
by the law and not by the person represented. The
representative does not succeed the person
represented but the one who the person represented
would have succeeded.
Art. 981. Should children of the deceased and
descendants of other children who are dead, survive,
the former shall inherit in their own right, and the latter
by right of representation.
There is no question that as the legitimate daughter of Teodoro
and thus the granddaughter of Eleno and Rafaela, Doribel has
a right to represent her deceased father in the distribution of
the intestate estate of her grandparents. Under Article 981,
quoted above, she is entitled to the share her father would
have directly inherited had he survived, which shall be equal to
the shares of her grandparents' other children. 13
But a different conclusion must be reached in the case of Delia
and Edmundo, to whom the grandparents were total strangers.
While it is true that the adopted child shall be deemed to be a
legitimate child and have the same right as the latter, these

61
rights do not include the right of representation. The
relationship created by the adoption is between only the
adopting parents and the adopted child and does not extend to
the blood relatives of either party. 14

6 Original Records of Civil Case No. 1042, pp.

115-117.

In sum, we agree with the lower courts that Delia and

Edmundo as the adopted children and Doribel as the
legitimate daughter of Teodoro Sayson and Isabel Bautista,
are their exclusive heirs and are under no obligation to share
the estate of their parents with the petitioners. The Court of
Appeals was correct, however, in holding that only Doribel has
the right of representation in the inheritance of her
grandparents' intestate estate, the other private respondents
being only the adoptive children of the deceased Teodoro.

8 16 SCRA 344.

WHEREFORE, the petition is DENIED, and the challenged

decision of the Court of Appeals is AFFIRMED in toto, with
costs against the petitioners.
Narvasa, C.J., Grio-Aquino and Medialdea, JJ., concur.

7 Exhibit C.

9 Rule 131, Sec. 5(m), which provides the

disputable presumption that official duty has
been regularly performed; Article 410 of the
Civil Code, which provides: "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."
10 Rollo, pp. 52-53.
11 142 SCRA 82.
12 Tolentino, Civil Code of the Philippines, Vol.
1, p. 559.

Footnotes

13 Article 972, Civil Code.

1 Rollo, pp. 66-71.

14 Teotico v. Del Val, 13 SCRA 406.

2 Exhibit C.
3 Exhibit B.
4 Rollo, pp. 60-64.
5 Martinez, J., ponente, with Castro-Bartolome
and Elbinias, JJ., concurring.

SECOND DIVISION
[G.R. No. 145527. May 28, 2002]

62

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.
DECISION
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.
Gan[1] 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,
plusP20,000.00 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]
On 9 June 2000 petitioner filed a petition for certiorari and
prohibition with the Court of Appeals imputing grave abuse of
discretion to the trial court for ordering the immediate execution of
the judgment. Petitioner averred that the writ of execution was issued
despite the absence of a good reason for immediate
enforcement. Petitioner insisted that as the judgment sought to be
executed did not yet attain finality there should be an exceptional
reason to warrant its execution. He further alleged that the writ
proceeded from an order of default and a judgment rendered by the
trial court in complete disregard of his "highly meritorious defense."

63
Finally, petitioner impugned the validity of the writ as he argued that
it was issued without notice to him. Petitioner stressed the fact that
he received copy of the motion for immediate execution two (2)
weeks after its scheduled hearing.[9]
On 31 August 2000 the Court of Appeals dismissed the petition
on the ratiocination that under Sec. 4, Rule 39 of the 1997 Rules of
Civil Procedure judgments for support are immediately executory
and cannot be stayed by an appeal. Thus, it did not help petitioner
any to argue that there were no good reasons to support its immediate
execution. The second challenge hurled against the validity of the
writ concerning the lack of notice and hearing was likewise
dismissed with the appeals court favoring substantial justice over
technicalities. Lastly, petitioner's justification for belatedly filing his
answer, i.e., miscommunication with his lawyer, was disregarded
since it fell short of the statutory requirements of "fraud, accident,
mistake or excusable negligence."[10]
His motion for reconsideration having been denied, petitioner
came to us impugning the dismissal of his petition for
certiorari. Petitioner argues that under the rules a judgment for
support which is subject of an appeal cannot be executed absent any
good reason for its immediate execution. Petitioner likewise attacks
the validity of the writ asserting that it was issued in violation of his
right to notice and hearing. Petitioner also seeks the setting aside of
the default order and the judgment rendered thereafter for the reason
that should he be allowed to prove his defense of adultery, the claim
of support would be most likely denied. [11] Petitioner claims that in an
action by a child against his putative father, adultery of the child's
mother would be a valid defense to show that the child is a fruit of
adulterous relations for, in such case, it would not be the child of the
defendant and therefore not entitled to support. Parenthetically, how
could he be allowed to prove the defense of adultery when it was not
even hinted that he was married to the mother of Francheska
Joy. Petitioner consents to submit to Dioxyribonucleic Acid (DNA)
Testing to resolve the issue of paternity, which test he claims has a
reputation for accuracy.[12]

A careful review of the facts and circumstances of this case fails

to persuade this Court to brand the issuance of the writ of execution
by the trial court and affirmed by the Court of Appeals with the vice
of grave abuse of discretion. There is no evidence indeed to justify
the setting aside of the writ on the ground that it was issued beyond
the legitimate bounds of judicial discretion.
Section 4, Rule 39, of the Rules of Court clearly states that,
unless ordered by the trial court, judgments in actions for support are
immediately executory and cannot be stayed by an appeal.This is an
exception to the general rule which provides that the taking of an
appeal stays the execution of the judgment and that advance
executions will only be allowed if there are urgent reasons
therefor. The aforesaid provision peremptorily calls for immediate
execution of all judgments for support and makes no distinction
between those which are the subject of an appeal and those which are
not. To consider then petitioner's argument that there should be good
reasons for the advance execution of a judgment would violate the
clear and explicit language of the rule mandating immediate
execution.
Petitioner is reminded that to the plain words of a legal
provision we should make no further explanation. Absoluta sententia
expositore non indiget. Indeed, the interpretation which petitioner
attempts to foist upon us would only lead to absurdity, its acceptance
negating the plain meaning of the provision subject of the petition.
Petitioner would also have us annul the writ of execution on the
ground that he was not notified of its issuance. We are unable to
accept such a plea for enough has been done by petitioner to delay
the execution of the writ. As the records show, in partial fulfillment
of the writ of execution petitioner surrendered a sedan which
apparently was not his as it was later ordered released to a third party
who laid claim over the levied vehicle. [13] Also, petitioner filed
before the Court of Appeals a Motion for Leave to Deposit in Court
Support Pendente Lite promising to deposit the amount due as
support every 15th of the month, but to date has not deposited any
amount in complete disavowal of his undertaking. [14] He was not

64
even deterred from appealing before us and needlessly taking up our
time and energy by posing legal questions that can be characterized,
at best, as flimsy and trivial. We are thus not prepared to abrogate the
writ of execution issued in favor of private respondent for substantial
justice would be better served if petitioner be precluded from
interposing another 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
theDecision 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.

waitthefinaljudgment,thechildrenmayinthemeantimehave
sufferedbecauseoflackoffoodorhavemissedandlostyearsin
schoolbecauseoflackoffunds.Onecannotdelaythepaymentof
suchfundsforsupportandeducationforthereasonthatifpaidlong
afterwards,howevermuchtheaccumulatedamount,itspayment
cannotcuretheevilandrepairthedamagecaused.Thechildrenwith
suchbelatedpaymentforsupportandeducationcannotactas
gluttonsandeatvoraciouslyandunwisely,afterwards,tomakeup
fortheyearsofhungerandstarvation.Neithermaytheyenrolin
severalclassesandschoolsandtakeupnumeroussubjectsallatonce
tomakeupfortheyearstheymissedinschool,duetononpayment
ofthefundswhenneeded.
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.
Mendoza, Quisumbing, De Leon, Jr., and Corona, JJ., concur.

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. Soriano[16] is relevant, thus:
Themoneyandpropertyadjudgedforsupportandeducationshould
andmustbegivenpresentlyandwithoutdelaybecauseifithadto

THIRD DIVISION

65

SPOUSES PRUDENCIO
and FILOMENA LIM,
Petitioners,

G.R. No. 163209

Present:
CARPIO, J., Chairperson,
QUISUMBING,*
CHICO-NAZARIO,
PERALTA, and
ABAD,** JJ.

- versus -

MA. CHERYL S. LIM,

for herself and on behalf of
her minor children LESTER
EDWARD S. LIM, CANDICE
GRACE S. LIM, and MARIANO
Promulgated:
S. LIM, III,
Respondents.
October 30, 2009
x ----------------------------------------------------------------------------- x
DECISION
CARPIO, J.:
The Case

[1]

[2]

For review is the Decision of the Court of Appeals, dated 28 April

2003, ordering petitioners Prudencio and 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 Edwards ailing grandmother,
Chua Giak and her husband Mariano Lim (Mariano). Edwards family
business, which provided him with a monthly salary of P6,000,
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 inhouse 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 P6,000 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 P40,000 monthly
support to respondents, with Edward shouldering P6,000 and
petitioners the balance of P34,000 subject to Chua Giaks subsidiary
liability.[5]

66
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 latters 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
Edwards 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]

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 Ruling of the Court of Appeals

The issue is whether petitioners are concurrently liable with Edward

to provide support to respondents.

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 Edwards parents, liable with him
to support respondents, the Court of Appeals held:

The Ruling of the Court

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

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 statutory[9] 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 provisions[11] 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,

67
conceivably either by its termination[12] or suspension[13] during the
childrens 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
latters 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 latters inability to provide sufficient support.
As we observed in another case raising the ancillary issue of an
ascendants obligation to give support in light of the fathers 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 x[18] (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, P6,000 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 maternal [19]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.
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, Cheryls right to receive support
from the Lim family extends only to her husband Edward, arising
from their marital bond.[20] Unfortunately, Cheryls 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

68
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.

SO ORDERED.
ANTONIO T. CARPIO
Associate Justice

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 husbands infidelity.
While not rising to the level of a legal obstacle, as indeed, Cheryls
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 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 theMODIFICATION 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.

Designated additional member per Special Order No. 755.

**

Designated additional member per Special Order No. 753.

[1]

Under Rule 45 of the 1997 Rules of Civil Procedure.

[2]

Penned by Associate Justice Elvi John S. Asuncion with Associate

Justices Ruben T. Reyes and Lucas P. Bersamin (now a member of
this Court), concurring.
[3]

CA rollo, p. 99. Cheryl filed criminal charges against Edward (for

concubinage, physical injuries, and grave threats) which,
however, the investigating prosecutor dismissed. It appears
that Edward, in turn, sued Cheryl for the declaration of
nullity of their marriage (Civil Case No. 99-1852) which the
Regional Trial Court of Makati City, Branch 140, granted.
Cheryls appeal of the ruling awaits resolution.

[4]

In an Order dated 28 June 1991.

[5]

The dispositive portion of the ruling provides (Records,

pp. 1021-1022):

69
WHEREFORE, premises considered, judgment is hereby
rendered as follows:
1. Defendant/s EDWARD N. LIM and
Spouses PRUDENCIO and FILOMENA
NG LIM are ordered to jointly provide
monthly support for the plaintiff, Ma.
Cheryl S. Lim and the three (3) minor
children, in the total amount of FORTY
THOUSAND (P40,000.00) Pesos to be
adjusted as may be needed, and to be given
in the following manner:

the parent with whom each one shall choose

to live with, they, being over seven (7)
years of age;
3. Defendants are directed to pay the
plaintiffs attorneys fees in the amount of
FIFTY THOUSAND (P50,000.00) PESOS,
plus FIVE HUNDRED (P500.00) PESOS
for each Court appearance, and the cost of
the suit.
[6]

The dispositive portion of the Order provides (Id. at 1058):

a) Six Thousand (P6,000.00) Pesos to be

paid by defendant EDWARD N. LIM;
b) The remaining balance of Thirty Four
Thousand (P34,000.00) Pesos shall be
shouldered
by
defendant/spouses
PRUDENCIO and FILOMENA NG LIM,
they, being in the remoter line pursuant to
Article 199 of the Family Code. However,
in the event that spouses Prudencio and
Filomena Ng Lim fail to provide plaintiffs
the amount they are entitled to receive, the
obligation shall be borne by CHUA GIAK,
being the grandmother of defendant Edward
Lim;
c) The payment of the aforesaid monthly
support should be made within the first five
(5) days of each month;
2. The custody of the three (3) minor
children, namely, Lester Edward, Candice
Grace and Mariano III shall be awarded to

In the light of the foregoing, item No. 1 in the

dispositive part of the Decision of this Court dated
January 31, 1996, is hereby amended to read as
follows:
(1.a) Defendant Edward N. Lim is ordered to
continue providing the amount of SIX THOUSAND
(P6,000.00) PESOS as his monthly support for the
plaintiffs;
(b) Considering the inability of defendant Edward N.
Lim to give sufficient support, defendants/spouses
Prudencio and Filomena Ng Lim being in the
remoter line (Art. 199, Family Code), are ordered to
give the amount of THIRTY-FOUR THOUSAND
(P34,000.00) PESOS as their monthly support for
the three (3) minor children. In case of default, the
obligation shall be borne by defendant Chua Giak;

70
(c) The payment of the aforesaid monthly support
shall be made within the first five (5) days of each
month.
[7]

This provision reads: Support comprises everything indispensable

for sustenance, dwelling, clothing, medical attendance,
education and transportation, in keeping with the financial
capacity of the family.

[11]

[12]

See Articles 228(1), 229(4) and (5), and 232, Civil Code, as
amended.
[13]

See Articles 230 and 231, Civil Code, as amended.

[14]

Respondents Lester Edward (born on 11 June 1981), Candice

Grace (born on 23 October 1985) and Mariano III (born on
31 August 1986) have since reached the age of majority, thus
emancipating them from their parents authority (see Article
228(3), Civil Code, as amended).

[15]

Article 209 in relation to Article 220(4), Civil Code, as amended.

[16]

The ordering of persons obliged to provide support in Article 199

is different from the preference of right to receive it under
Article 200, par. 3. Thus, the Court of Appeals, while
correctly affirming the trial court's ruling, as we do,
misapplied the latter provision as basis for its ruling
sustaining petitioners' concurrent obligation to provide
support.

[17]

Article 228(3), Civil Code, as amended.

(1) The spouse;

[18]

Supra note 10 at 448-449.

(2) The descendants in the nearest degree;

[19]

Respondents no longer sought support from the childrens

maternal ascendants because at the time respondents filed
their complaint, they were living with, and received support
from, Cheryls mother.

[20]

Thus, should the ruling of the trial court in Civil Case No. 991852 (declaring the nullity of Cheryl and Edwards marriage)
be affirmed on appeal, the mutual obligation to provide
support between them ceases. See Pelayo v. Lauron, 12 Phil.

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.
[8]

Rollo, pp. 27-28.

[9]

Article 199, Civil Code, as amended, provides:

Whenever two or more persons are obliged to give

support, the liability shall devolve upon the
following persons in the order herein provided:

(3) The ascendants in the nearest degree; and

(4) The brothers and sisters
[10]

Articles 214 and 216, Civil Code, as amended.

Patricio v. Dario III, G.R. No. 170829, 20 November 2006, 507

SCRA 438.

71
453, 457 (1908) (holding that in-laws are strangers with
respect to the obligation that revolves upon the husband to
provide support to his wife).
[21]

After the trial courts determination, the Edward and petitioners

liability should be reckoned from the time the trial court
rendered its judgment on 31 January 1996.

FIRST DIVISION

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 (CAG.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. CEB29346 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 P500,000.00 as
monthly support, citing respondents huge earnings from

72
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 (P250,000.00) Thousand Pesos would
be sufficient to take care of the needs of the plaintiff. This
amount excludes the One hundred thirty-five (P135,000.00)
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 (P250,000.00) Thousand should be paid
by defendant to plaintiff retroactively to such date until the
hearing of the support pendente lite. P250,000.00 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 (P1,750,000.00) 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
(P250,000.00) 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 P250,000.00 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
Respondent filed a motion for reconsideration,7 asserting that
petitioner is not entitled to spousal support considering that
she does not maintain for herself a separate dwelling from
their children and respondent has continued to support the
family for their sustenance and well-being in accordance with
familys social and financial standing. As to the P250,000.00
granted by the trial court as monthly support pendente lite, as
well as theP1,750,000.00 retroactive support, respondent
found it unconscionable and beyond the intendment of the law
for not having considered the needs of the respondent.
In its May 13, 2004 Order, the trial court stated that the March
31, 2004 Order had become final and executory since
respondents motion for reconsideration is treated as a mere
scrap of paper for violation of the threeday notice period under
Section 4, Rule 15 of the 1997 Rules of Civil Procedure, as
amended, and therefore did not interrupt the running of the
period to appeal. Respondent was given ten (10) days to show
cause why he should not be held in contempt of the court for
disregarding the March 31, 2004 order granting support
pendente lite.8
His second motion for reconsideration having been denied,
respondent filed a petition for certiorari in the CA.
On April 12, 2005, the CA rendered its Decision,9 finding merit
in respondents contention that the trial court gravely abused
its discretion in granting P250,000.00 monthly support to
petitioner without evidence to prove his actual income. The
said court thus decreed:

73
WHEREFORE, foregoing premises considered, this petition is
given due course. The assailed Orders dated March 31, 2004,
May 13, 2004, June 4, 2004 and June 18, 2004 of the
Regional Trial Court, Branch 14, Cebu City issued in Civil
Case No. CEB No. 29346 entitled "Susan Lim Lua versus
Danilo Y. Lua" are hereby nullified and set aside and instead a
new one is entered ordering herein petitioner:
a) to pay private respondent a monthly support
pendente lite of P115,000.00 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 P115,000.00 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

In her Comment to Compliance with Motion for Issuance of a

Writ of Execution,12 petitioner asserted that none of the
expenses deducted by respondent may be chargeable as part
of the monthly support contemplated by the CA in CA-G.R. SP
No. 84740.
On September 27, 2005, the trial court issued an
Order13 granting petitioners motion for issuance of a writ of
execution as it rejected respondents interpretation of the CA
decision. Respondent filed a motion for reconsideration and
subsequently also filed a motion for inhibition of Judge
Raphael B. Yrastorza, Sr. On November 25, 2005, Judge
Yrastorza, Sr. issued an Order14 denying both motions.
WHEREFORE, in view of the foregoing premises, both
motions are DENIED. Since a second motion for
reconsideration is prohibited under the Rules, this denial has
attained finality; let, therefore, a writ of execution be issued in
favor of plaintiff as against defendant for the accumulated
support in arrears pendente lite.

c) to pay the costs.

Notify both parties of this Order.
SO ORDERED.10
SO ORDERED.15
Neither of the parties appealed this decision of the CA. In a
Compliance11 dated June 28, 2005, respondent attached a
copy of a check he issued in the amount of P162,651.90
payable to petitioner. Respondent explained that, as decreed
in the CA decision, he deducted from the amount of support in
arrears (September 3, 2003 to March 2005) ordered by the CA
-- P2,185,000.00 -- plus P460,000.00 (April, May, June and
July 2005), totalingP2,645,000.00, the advances given by him
to his children and petitioner in the sum of P2,482,348.16 (with
attached photocopies of receipts/billings).

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.

74
By Decision dated April 20, 2006, the CA set aside the
assailed orders of the trial court, 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. CAGR No. 01154;
b) GRANTING Danilo Y. Luas 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
PhP2,482,348.16 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
PhP115,000.00 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 respondents 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 courts
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
PHP2,482,348.16 PLUS 946,465.64, OR A TOTAL OF
PHP3,428,813.80 FROM THE CURRENT TOTAL
SUPPORT IN ARREARS OF THE RESPONDENT TO
THE PETITIONER AND THEIR CHILDREN.17

75
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 (P115,000.00) was fixed on the
basis of the documentary evidence of respondents alleged
income from various businesses and petitioners testimony
that she needed P113,000.00 for the maintenance of the
household and other miscellaneous expenses excluding
the P135,000.00 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 respondents credit
card, totalling P594,151.58 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 childrens 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

76
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 P115,000.00 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. Petitioners 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?

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 P100,000.00, 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
ATTY. FLORES:

ATTY. ZOSA:

xxxx

Yes.
A For the food alone, I spend not over P40,000.00
to P50,000.00 a month for the food alone.
xxxx
ATTY. ZOSA:

Q On the issue of the food for you and the two (2) children,
you mentioned P40,000.00 to P50,000.00?
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?

77
A Yes, I might need two (2) drivers, Sir for me and my children.

ATTY. FLORES:

Q Okay. How much would you like possibly to pay for those
two (2) drivers?

Q Madam witness, let us talk of the present needs. x x x. What

else, what specific need that you would like to add so I can tell
my client, the defendant.

A I think P10,000.00 a month for one (1) driver. So I need two

(2) drivers. And I need another househelp.

WITNESS:

Q You need another househelp. The househelp nowadays

would charge you something between P3,000.00 toP4,000.00.
Thats quite

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.

A Right now, my househelp is receiving P8,000.00. I need

another which I will give a compensation of P5,000.00.

Q That is very reasonable. [W]ould you care to please repeat

that?

Q Other than that, do you still have other expenses?

A Therapy for my scoliotic back and then also for the operation
both of my eyes. And I am also taking some vitamins from
excel that will cost P20,000.00 a month.

A My clothing.

Q Okay. Lets have piece by piece. Have you asked the Doctor
how much would it cost you for the operation of that scoliotic?

COURT:
How about the schooling for your children?
WITNESS:
A The schooling is shouldered by my husband, Your Honor.
COURT:

A Yes before because I was already due last year. Before, this
eye will cost P60,000.00 and the other eyesP75,000.00.
Q So for both eyes, you are talking of P60,000.00
plus P75,000.00 is P135,000.00?
A Yes.

Everything?

xxxx

A Yes, Your Honor.

Q You talk of therapy?

xxxx

A Yes.

78
Q So how much is that?
A Around P5,000.00 a week.21
As to the financial capacity of the respondent, it is beyond
doubt that he can solely provide for the subsistence,
education, transportation, health/medical needs and
recreational activities of his children, as well as those of
petitioner who was then unemployed and a full-time
housewife. Despite this, respondents counsel manifested
during the same hearing that respondent was willing to grant
the amount of only P75,000.00 as monthly support pendente
lite both for the children and petitioner as spousal support.
Though the receipts of expenses submitted in court
unmistakably show how much respondent lavished on his
children, it appears that the matter of spousal support was a
different matter altogether. Rejecting petitioners prayer
for P500,000.00 monthly support and finding the P75,000.00
monthly support offered by respondent as insufficient, the trial
court fixed the monthly support pendente lite at P250,000.00.
However, since the supposed income in millions of respondent
was based merely on the allegations of petitioner in her
complaint and registration documents of various corporations
which respondent insisted are owned not by him but his
parents and siblings, the CA reduced the amount of support
pendente lite toP115,000.00, which ruling was no longer
questioned by both parties.
Controversy between the parties resurfaced when
respondents compliance with the final CA decision indicated
that he deducted from the total amount in arrears
(P2,645,000.00) the sum of P2,482,348.16, representing the
value of the two cars for the children, their cost of maintenance
and advances given to petitioner and his children. Respondent
explained that 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

supposedly given by him to petitioner as her and their two
childrens monthly support.
The following is a summary of the subject deductions under
Compliance dated June 28, 2005, duly supported by receipts22:
Car purchases for Angelli Suzanne and Daniel Ryan Car Maintenance fees of Angelli Suzanne

Php1,350,000.00
613,472.86
51,232.50

Credit card statements of Daniel Ryan

-

348,682.28

Car Maintenance fees of Daniel Ryan -

118,960.52
Php2,482,348.16

After the trial court disallowed the foregoing deductions,

respondent filed a motion for reconsideration further asserting
that the following amounts, likewise with supporting receipts,
be considered as additional advances given to petitioner and
the children23:
Medical expenses of Susan Lim-Lua

Php 42,450.71

Dental Expenses of Daniel Ryan

11,500.00

Travel expenses of Susan Lim-Lua

14,611.15

Credit card purchases of Angelli

Suzanne

408,891.08

79
Salon and travel expenses of Angelli
Suzanne

87,112.70

may deem just and reasonable based on their standard

of living during the marriage.

School expenses of Daniel Ryan Lua

260,900.00

Cash given to Daniel and Angelli

121,000.00

(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 spouses 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 spouses
earning capacity, earned and unearned income, assets,
and standard of living; and (10) any other factor the
court may deem just and equitable.

TOTAL GRAND TOTAL -

Php 946,465.64
Php 3,428,813.80

The CA, in ruling for the respondent said that all the foregoing
expenses already incurred by the respondent should, in equity,
be considered advances which may be properly deducted from
the support in arrears due to the petitioner and the two
children. Said court also noted the absence of petitioners
contribution to the joint obligation of support for their children.
We reverse in part the decision of the CA.
Judicial determination of support pendente lite in cases of
legal separation and petitions for declaration of nullity or
annulment of marriage are guided by the following provisions
of the Rule on Provisional Orders24
Sec. 2. Spousal Support.In determining support for the
spouses, the court may be guided by the following rules:
(a) In the absence of adequate provisions in a written
agreement between the spouses, the spouses may be
supported from the properties of the absolute
community or the conjugal partnership.
(b) The court may award support to either spouse in
such amount and for such period of time as the court

(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

80
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
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

81
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 petitioners 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 respondents 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) childrens 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 (P100,000.00) for each of them and
considering that as testified by the private respondent that she
needs the total amount of P113,000.00 for the maintenance of
the household and other miscellaneous expenses and
considering further that petitioner can afford to buy cars for his

82
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 P100,000.00 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 P115,000.00 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 P115,000.00 excludes the amount of One Hundred
ThirtyFive (P135,000.00) 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 P115,000.00 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:
1wphi1
Medical expenses of Susan Lim-Lua
Dental Expenses of Daniel Ryan
Credit card purchases of Angelli
(Groceries and Dry Goods)

Php 42,450.71

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
courts 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
respondents 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 familys 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
365,282.20 maintains a boutique at the Ayala Center Mall in Cebu City and
at the same time engages in the business of lending money.
228,869.38 He also claims that the two children have finished their
11,500.00

83
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

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
PhP115,000.00 pesos starting from the time
payment of this amount was deferred by him
subject to the deduction aforementioned.

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 CAG.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. CAG.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

iii. DIRECTING the immediate execution of this

judgment.
SO ORDERED."
No pronouncement as to costs.
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice
Footnotes
1

Rollo, pp. 39-48. Penned by Associate Justice Enrico

A. Lanzanas with Associate Justices Pampio A.
Abarintos and Apolinario D. Bruselas, Jr. concurring.

84
2

Id. at 50-51. Penned by Associate Justice Pampio A.

Abarintos with Associate Justices Agustin S. Dizon and
Priscilla Baltazar-Padilla concurring.
3

Records, p. 1.

Id. at 16.

Id. at 46-B to 50.

Id. at 49.

Id. at 55-59.

Id. at 71.

17

Id. at 18.

18

FAMILY CODE, Art. 201; Lacson v. Lacson, 531 Phil.

277, 287 (2006), citing Baltazar v. Serfino, No. L17315, July 31, 1965, 14 SCRA 820, 821.
19

Sec. 1, RULE ON PROVISIONAL ORDERS (A.M.

No. 02-11-12-SC) which took effect on March 15,
2003); REVISED RULES OF COURT, Rule 61, Secs. 1
& 4.
20

Mangonon v. Court of Appeals, 526 Phil. 505, 517

(2006), citing Ramos v. Court of Appeals, 150-A Phil.
996, 1001 (1972).
21

TSN, March 31, 2004, pp. 6-11.

22

Rollo, pp. 74-185.

Rollo, pp. 61-69. Penned by Associate Justice

Mercedes Gozo-Dadole with Associate Justices
Pampio A. Abarintos and Ramon M. Bato, Jr.
concurring.
10

11

12

13

Id. at 68-69.
Id. at 70-72.
Id. at 186-189.
Records, pp. 265-266.

23

Records, pp. 278-329; CA Decision dated April 20,

2006, rollo p. 44.
24

A.M. No. 02-11-12-SC.

25

225 Md. 512; 171 A.2d 493; 1961 Md. LEXIS 686.

26

Id. at 519; id. at 496-497.

27

59 Wn.2d 468; 368 P.2d 170; 1962 Wash. LEXIS

419.

14

Rollo, pp. 193-196.

15

Id. at 196.

28

Id. at 473; id. at 172-173.

16

Id. at 47.

29

Records, p. 48.

85
30

Rollo, p. 68.

AZCUNA, and
GARCIA, JJ.

31

Bank of the Philippine Islands v. Calanza, G.R. No.

180699, October 13, 2010, 633 SCRA 186, 192-193,
citing Lu Ym v. Mahinay, G.R. No. 169476, June 16,
2006, 491 SCRA 253, 261-262; Lee v. Regional Trial
Court of Quezon City, Br. 85, 496 Phil. 421, 433 (2005).
32

Lorenzo Shipping Corporation v. Distribution

Management Association of the Philippines, G.R. No.
155849, August 31, 2011, 656 SCRA 331, 350.
33

Id. at 349.

MAOWEE DABAN LACSON

and MAONAA DABAN
LACSON, represented by their
mother and guardian ad-litem,
Promulgated:
LEA DABAN LACSON,
August 28, 2006
Respondents.
x------------------------------------------------------------------------------x
DECISION
GARCIA, J.:

34

Montefalcon v. Vasquez, G.R. No. 165016, June 17,

2008, 554 SCRA 513, 528; FAMILY CODE, Art. 202.
35

No. L-19065, January 31, 1964, 10 SCRA 189, 191.

36

As cited in Lam v. Chua, 469 Phil. 852, 860-861

(2004).

Petitioner Edward V. Lacson, father of the respondent sisters

Maowee Daban Lacson and Maonaa Daban Lacson and husband of
their mother and guardian ad-litem,Lea Daban Lacson, has come to
this Court via this petition for review under Rule 45 of the Rules of
Court to seek the reversal and setting aside of the Decision[1] dated
July 13, 2001 of the Court of Appeals (CA) in CA-G.R. CV No.
60203, as reiterated in its Resolution[2] of October 18, 2001 denying
his motion for reconsideration.
From the petition and its annexes, the respondents reply thereto, and
other pleadings, the Court gathers the following facts:

SECOND DIVISION

EDWARD V. LACSON,
Petitioner,
- versus -

G.R. No. 150644

Present:
PUNO, J., Chairperson,
SANDOVAL-GUTIERREZ,
CORONA,

The sisters Maowee Daban Lacson and Maonaa Daban Lacson are
legitimate daughters of petitioner Edward V. Lacson and his wife,
Lea Daban Lacson. Maowee was born on December 4, 1974, while
Maonaa, a little less than a year later. Not long after the birth of
Maonaa, petitioner left the conjugal home in Molo, Iloilo City,
virtually forcing mother and children to seek, apparently for financial
reason, shelter somewhere else. For a month, they stayed with Leas
mother-in-law, Alicia Lacson, then with her (Leas) mother and then
with her brother Noel Daban. After some time, they rented an

86
apartment only to return later to the house of Leas mother. As the
trial court aptly observed, the sisters and their mother, from 1976 to
1994, or for a period of eighteen (18) years, shuttled from one
dwelling place to another not their own.

lack of regular income and the unproductivity of the land he

inherited, not his neglect, accounted for his failure at times to give
regular support. He also blamed financial constraint for his inability
to provide the P12,000.00 monthly allowance prayed for in the
complaint.

It appears that from the start of their estrangement, Lea did

not badger her husband Edward for support, relying initially on his
commitment memorialized in a note dated December 10, 1975 to
give support to his daughters. As things turned out, however, Edward
reneged on his promise of support, despite Leas efforts towards
having him fulfill the same. Lea would admit, though, that Edward
occasionally gave their children meager amounts for school
expenses. Through the years and up to the middle part of 1992,
Edwards mother, Alicia Lacson, also gave small amounts to help in
the schooling of Maowee and Maonaa, both of whom
eventually took upnursing at St. Pauls College in Iloilo City. In the
early part of 1995 when Lea, in behalf of her two daughters, filed a
complaint against Edward for support before the Regional Trial
Court of Iloilo City, Branch 33, Maowee was about to graduate.

As applied for and after due hearing, the trial court granted
the sisters Maowee and Maonaa support pendente lite at P12,000.00
per month, subject to the schedule of payment and other conditions
set forth in the courts corresponding order of May 13, 1996. [4]

In that complaint dated January 30, 1995, as amended,[3] docketed as

Civil Case No. 22185, Maowee and Maonaa, thru their mother,
averred that their father Edward, despite being gainfully employed
and owning several pieces of valuable lands, has not provided them
support since 1976. They also alleged that, owing to years of
Edwards failure and neglect, their mother had, from time to time,
borrowed money from her brother Noel Daban. As she would later
testify, Lea had received from Noel, by way of a loan, as much
as P400,000.00 to P600,000.00.
In his Answer, Edward alleged giving to Maowee and Maonaa
sufficient sum to meet their needs. He explained, however, that his

Following trial, the RTC rendered on June 26, 1997 judgment finding
for the plaintiff sisters, as represented by their mother. In that
judgment, the trial court, following an elaborate formula set forth
therein, ordered their defendant father Edward to pay them a specific
sum which represented 216 months, or 18 years, of support in
arrears. The fallo of the trial courts decision[5] reads:
WHEREFORE, judgment is hereby rendered:
1)

Ordering defendant to compensate

plaintiffs support in arrears in the
amount of TWO MILLION FOUR
HUNDRED
NINETY-SIX
THOUSAND (P2, 496,000.00) PESOS
from which amount shall be deducted
ONE HUNDRED TWENTY-FOUR
(P124,000.00) PESOS that which they
received from defendant for two years
and that which they received by way of
support pendent lite;

2) Ordering defendant to pay TWENTY

THOUSAND (P20,000.00) PESOS as
attorneys fees; and

87
3)

Pay costs.
III.

XXX IN AFFIRMING THE AWARD OF

SUPPORT EVEN IF PETITIONER IS NOT
FINANCIALLY CAPABLE OF PROVIDING THE
SAME TO RESPONDENTS.

IV.

XXX WHEN IT ORDERED PETITIONER TO

PROVIDE SUPPORT TO XXX RESPONDENTS
EVEN IF PETITIONERS OBLIGATION TO
PROVIDE SUPPORT HAD ALREADY BEEN
COMPLETELY SATISFIED BY THE PROCEEDS
OF THE SALE OF HIS EXCLUSIVE PROPERTY
WHICH WERE ALL APPROPRIATED BY THE
RESPONDENTS.

SO ORDERED.
Therefrom, Edward appealed to the CA whereat his recourse was
docketed as CA-G.R. CV. No. 60203.
Eventually, the CA, in the herein assailed Decision dated July 13,
2001,[6] dismissed Edwards appeal, disposing as follows;
WHEREFORE, premises considered, the present appeal is
hereby DISMISSED and the appealed Decision in Civil Case
No. 22185 is hereby AFFIRMED.
Double costs against the defendant appellant [Edward
Lacson].
SO ORDERED. (Words in bracket added.)
In time, Edward moved for reconsideration, but his motion was
denied by the appellate court in its equally assailed Resolution
of October 18, 2001.[7]
Hence,
erred -

Edwards present recourse on his submission that the CA

I.

XXX WHEN IT AFFIRMED THE GRANT

OF SUPPORT IN ARREARS FROM 1976 TO
1994.

II.

XXX IN AFFIRMING THE ALLEGED

ADVANCES OF SUPPORT BY RESPONDENTS
UNCLE NOEL DABAN.

The petition lacks merit.

Petitioner admits being obliged, as father, to provide support to both
respondents, Maowee and Maonaa. It is his threshold submission,
however, that he should not be made to pay support in arrears, i.e.,
from 1976 to 1994, no previous extrajudicial, let alone judicial,
demand having been made by the respondents. He invokes the
following provision of the Family Code to complete his point:
Article 203 The obligation to give support shall be
demandable from the time the person who has a
right to receive the same needs it for maintenance,
but it shall not be paid except from the date of
judicial or extrajudicial demand.
To petitioner, his obligation to pay under the aforequoted provision
starts from the filing of Civil Case No. 22185 in 1995, since only
from that moment can it be said that an effective demand for support
was made upon him.
Petitioners above posture has little to commend itself. For one, it
conveniently glossed over the fact that he veritably abandoned the

88
respondent sisters even before the elder of the two could celebrate
her second birthday. To be sure, petitioner could not plausibly expect
any of the sisters during their tender years to go through the motion
of demanding support from him, what with the fact that even their
mother (his wife) found it difficult during the period material to get
in touch with him. For another, the requisite demand for support
appears to have been made sometime in 1975. It may be that Lea
made no extrajudicial demand in the sense of a formal written
demand in terms and in the imperious tenor commonly used by legal
advocates in a demand letter. Nonetheless, what would pass as a
demand was, however, definitely made. Asking one to comply with
his obligation to support owing to the urgency of the situation is no
less a demand because it came by way of a request or a plea. As it
were, the trial court found that a demand to sustain an award of
support in arrears had been made in this case and said so in its
decision, thus:
From 1976, [respondents] mother now and then went
to their [paternal] grandmothers house by their father
and asked for support; this notwithstanding their
fathers commitment for this purpose which the latter
embodied in a note dated December 10, 1975. For
twenty-one years that they needed support,
[petitioner] complied with his obligation for only
two (2) years.
xxx xxx xxx
Last December 10, 1975, [petitioner] committed self
for the support of his children, the [respondents]
herein but failing, plaintiffs mother asked
extrajudicially for her childrens support since 1976,
when she went to her mothers house. . [8] (Words in
bracket and underscoring added.)
The appellate court made a parallel finding on the demand angle,
formulating the same in the following wise:

We could not confer judicial approval upon

[petitioners]
posture
of trying to evade
his
responsibility to give support to his daughters simply
because their mother did not make a formal demand
therefor from him. [Petitioners] insistence on
requiring a formal demand from his wife is truly
pointless, in the face of his acknowledgment of and
commitment to comply with such obligation through
a note in his own handwriting. Said note [stating that
he will sustain his two daughters Maowee and
Maonaa] also stated as requested by their mother
thus practically confirming the fact of such demand
having been made by [respondents] mother. The trial
court thus correctly ruled that [petitioners] obligation
to pay support in arrears should commence from
1976.[9] (Words in bracket added).
The Court finds no adequate reason to disturb the factual
determination of the CA confirmatory of that of the trial court
respecting the demand Lea made on the petitioner to secure support
for the respondents. As a matter of long and sound appellate practice,
factual findings of the CA are accorded respect, if not finality, save
for the most compelling and cogent reasons. [10] Not one of the wellrecognized exceptions to this rule on conclusiveness of factual
findings appear to obtain in this case. Accordingly, the Court cannot
grant the petitioners plea for a review of the CAs findings bearing on
the actuality that, as basis for an award of support in arrears, an
extrajudicial demand for support had been made on the petitioner as
evidenced by the December 10, 1975 note adverted to. Lest it be
overlooked, the jurisdiction of the Court in a petition for review, as
here, is generally limited to correction of errors of law.
Complementing that postulate is the rule that the Court is not bound
to analyze and weigh all over again the evidence already considered
in the proceedings below,[11] except when, as earlier indicated,

89
compelling reasons demand a review of the factual conclusions
drawn from such evidence.
Petitioners second specification of error touches on the CAs
affirmatory holding that respondents uncle, Noel Daban, advanced
the money for their support. Again, petitioners lament on the
matter is a veritable call for review of factual determinations of the
two courts below. It need not, accordingly, detain us long. Suffice it
to state in that regard that, of their close relatives, the respondents
appeared to have stayed longest with their uncle, Noel
Daban. Noteworthy also is the fact that petitioner, from 1976 to
1994, only gave Maowee and Maonaa token amounts for schooling
when support comprises everything indispensable for sustenance,
dwelling, clothing, medical attendance and education, [12] or, in short,
whatever is necessary to keep a person alive. Logically, the sisters
would, thru their mother, turn to their uncle (Noel Daban) for their
sustenance and education when petitioner failed to give the same, a
failing which stretched from their pre-schooling days to their college
years. Since such failure has been established, it is not amiss to
deduce, as did the trial court and the CA, that Noel Daban who,
owing to consideration of kinship, had reasons to help, indeed lent
his sister Lea money to support her children.
Pursuant to Article 207 of the Family Code, Noel Daban can
rightfully exact reimbursement from the petitioner. The provision
reads:
When the person obliged to support another unjustly
refuses or fails to give support when urgently needed
by the latter, any third person may furnish support to
the needy individual, with right of reimbursement
from the person obliged to give support.
Mention may also be made that, contextually, the resulting juridical
relationship between the petitioner and Noel Daban is a quasi-

contract,[13] an equitable principle enjoining one from unjustly

enriching himself at the expense of another.
As for the amount of support in arrears, there is also no reason to
disturb the absolute figures arrived at by the two courts below,
appearing as they do to be reasonable and proper. Arbitrariness
respecting the determination of the final numbers cannot plausibly be
laid on the doorsteps of the CA, and the trial court before it,
considering that they fixed such amount based on the varying needs
of the respondents during the years included in the computation and
to the financial resources of the petitioner, as proved by the evidence
adduced below. 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. [14]
Petitioner closes his petition by urging the Court, as it did the CA
earlier, to consider a transaction that transpired after the trial court
had rendered judgment. We refer to the sale by Lea of half of what
petitioner claims to be his exclusive or capital property. As the
petitioner would have this Court believe, Lea and the respondent
sisters appropriated the P5 Million proceeds of the sale for
themselves. Pressing on, he alleged that the amount thus received
from the sale is more than enough to fully satisfy thus release him
from
complying
with- the
underlying
judgment
for
support, assuming ex gratia argumenti his obligation to pay support
in arrears.
Petitioners above submission is flawed by the premises holding it
together. For firstly, it assumes as a fact that what was sold for P5
Million was indeed his exclusive property. But, as the CA aptly
observed, there is no showing whether the property subject of the
transaction mentioned by [the petitioner] is a conjugal property or
[his] exclusive property, as in fact [respondents] mother asserts that
she and [petitioner] had separately sold their respective shares on
said property.[15]

90
Secondly, the respondent sisters were not party to the sale
aforementioned. Petitioners suggestion, therefore, that part of the
proceeds of the sale went to them and may be set off for what
petitioner owes them by way of support in arrears is unacceptable,
being at best gratuitous and self-serving.
Petitioner, unlike any good father of a family, has been remiss in his
duty to provide respondents with support practically all throughout
their growing years. At bottom, the sisters have been deprived by a
neglectful father of the basic necessities in life as if it is their fault to
have been born. This disposition is thus nothing more than a belated
measure to right a wrong done the herein respondents who are no
less petitioners daughters.
WHEREFORE, the instant petition is DENIED and the appealed
CA decision and resolution are AFFIRMED.
Costs against petitioner.

JOEY D. BRIONES, petitioner,

vs. MARICEL P. MIGUEL, FRANCISCA P. MIGUEL and
LORETA P. MIGUEL, respondents.
DECISION
PANGANIBAN, J.:
An illegitimate child is under the sole parental authority of
the mother. In the exercise of that authority, she is entitled to
keep the child in her company. The Court will not deprive her
of custody, absent any imperative cause showing her unfitness
to exercise such authority and care.
The Case

SO ORDERED.
CANCIO C. GARCIA
Associate Justice

THIRD DIVISION
[G.R. No. 156343. October 18, 2004]

The Petition for Review[1] before the Court seeks to

reverse and set aside the August 28, 2002 Decision[2] and the
December 11, 2002 Resolution[3] of the Court of Appeals in
CA-GR SP No. 69400.[4] The dispositive portion of the assailed
Decision reads as follows:
WHEREFORE,thepetitionisherebyDISMISSED.Respondent
LoretaP.MiguelshallhavecustodyoverthechildMichaelKevin
Pinedauntilhereachesten(10)yearsofage.Oncethesaidchildis
beyondten(10)yearsofage,theCourtallowshimtochoosewhich
parenthepreferstolivewithpursuanttoSection6,Rule99ofthe
1997RulesofCivilProcedure,asamended.Thepetitioner,JoeyD.
Briones,shallhelpsupportthechild,shallhavevisitorialrightsat
leastonceaweek,andmaytakethechildoutuponthewritten
consentofthemother.

91
ActingonthepetitionersUrgentMotionforaHoldDeparture
Order,andfindingittobewithoutmerit,thesameisDENIED. [5]
The challenged Resolution denied reconsideration.

L.A.School,Inc.inCaloocanCity,wherehefinishedthenursery
course.
Accordingtothepetitioner,hisparents,whoarebothretiredand
receivingmonthlypensions,assistedhimintakingcareofthechild.

The Facts
The CA summarized the antecedents of the case in this
wise:
OnMarch5,2002,petitionerJoeyD.BrionesfiledaPetition
forHabeasCorpusagainstrespondentsMaricelPinedaMigueland
FranciscaPinedaMiguel,toobtaincustodyofhisminorchild
MichaelKevinPineda.
OnApril25,2002,thepetitionerfiledanAmendedPetitionto
includeLoretaP.Miguel,themotheroftheminor,asoneofthe
respondents.
AWritofHabeasCorpuswasissuedbythisCourtonMarch11,
2002orderingtherespondentstoproducebeforethisCourttheliving
bodyoftheminorMichaelKevinPinedaonMarch21,2002at2:00
oclockintheafternoon.
ThepetitionerallegesthattheminorMichaelKevinPinedaishis
illegitimatesonwithrespondentLoretaP.Miguel.Hewasbornin
JapanonSeptember17,1996asevidencedbyhisBirthCertificate.
TherespondentLoretaP.MiguelisnowmarriedtoaJapanese
nationalandispresentlyresidinginJapan.
ThepetitionerfurtherallegesthatonNovember4,1998hecaused
theminorchildtobebroughttothePhilippinessothathecouldtake
careofhimandsendhimtoschool.Intheschoolyear20002001,
thepetitionerenrolledhimatthenurseryschoolofBlessedAngels

OnMay2,2001,respondentsMaricelP.MiguelandFranciscaP.
MiguelcametothehouseofthepetitionerinCaloocanCityonthe
pretextthattheywerevisitingtheminorchildandrequestedthatthey
beallowedtobringthesaidchildforrecreationattheSM
Departmentstore.Theypromisedhimthattheywillbringhimback
intheafternoon,towhichthepetitioneragreed.However,the
respondentsdidnotbringhimbackaspromisedbythem.
ThepetitionerwentseveraltimestorespondentMaricelP.Miguelat
Tanza,TuguegaraoCitybuthewasinformedthatthechildiswith
thelattersmotheratBatalHeights,SantiagoCity.Whenhewent
there,respondentFranciscaP.MigueltoldhimthatMichaelKevin
PinedaiswithherdaughteratTuguegaraoCity.
HesoughttheassistanceofthepoliceandtheDepartmentofSocial
Welfaretolocatehissonandtobringhimbacktohim,butallhis
effortswerefutile.
Hence,hewasconstrainedtofileaPetitionforHabeasCorpuswith
theRegionalTrialCourtofCaloocanCitywhichwasdocketedas
SPCNo.2711.However,thesaidcasewaswithdrawnexparte.
ThepetitionerpraysthatthecustodyofhissonMichaelKevin
Pinedabegiventohimashisbiologicalfatherand[as]hehas
demonstratedhiscapabilitytosupportandeducatehim.
OnMay6,2002,therespondentsfiledtheirComment,incompliance
withtheMay2,2002ResolutionofthisCourt.

92
IntheirComment,therespondentLoretaP.Migueldeniesthe
allegationofthepetitionerthathewastheonewhobroughttheir
childtothePhilippinesandstatedthatshewastheonewhobrought
himherepursuanttotheiragreement.

RespondentLoretaP.Miguelpraysthatthecustodyofherminor
childbegiventoherandinvokesArticle213,Paragraph2ofthe
FamilyCodeandArticle363oftheCivilCodeofthePhilippines.
Ruling of the Court of Appeals

RespondentLoretaP.Miguellikewisedeniespetitionersallegation
thatrespondentsMaricelP.MiguelandFranciscaP.Miguelwerethe
oneswhotookthechildfromthepetitionerorthelattersparents.She
averredthatshewastheonewhotookMichaelKevinPinedafrom
thepetitionerwhenshereturnedtothePhilippinesandthatthelatter
readilyagreedandconsented.
RespondentLoretaP.MiguelallegesthatsometimeinOctober2001,
thepetitionerwasdeportedfromJapanundertheassumednameof
RenatoJuanzonwhenhewasfoundtohaveviolatedorcommittedan
infractionofthelawsofJapan.Shefurtherstatedthatsincethetime
thepetitionerarrivedinthePhilippines,hehasnotbeengainfully
employed.Thecustodyofthechild,accordingtorespondentLoreta
P.Miguelwasentrustedtopetitionersparentswhiletheywereboth
workinginJapan.Sheaddedthatevenbeforethecustodyofthe
childwasgiventothepetitionersparents,shehasalreadybeenliving
separatelyfromthepetitionerinJapanbecausethelatterwas
allegedlymaintaininganillicitaffairwithanotherwomanuntilhis
deportation.
ShelikewisestatedinherCommentthathermarriagetoaJapanese
nationalisforthepurposeofavailingoftheprivilegesofstaying
temporarilyinJapantopursueherworksoshecouldbeabletosend
moneyregularlytohersoninthePhilippines.Shefurtherstatedthat
shehasnointentionofstayingpermanentlyinJapanasshehasbeen
returningtothePhilippineseverysix(6)monthsorasoftenasshe
could.

Applying Article 213 (paragraph 2) of the Family Code, the

CA awarded the custody of Michael Kevin Pineda Miguel to his
mother, Respondent Loreta P. Miguel. While acknowledging
that petitioner truly loved and cared for his son and
considering the trouble and expense he had spent in instituting
the legal action for custody, it nevertheless found no
compelling reason to separate the minor from his mother.
Petitioner, however, was granted visitorial rights.
Hence, this Petition.[6]
Issue
In his Memorandum, petitioner formulated the ultimate
issue as follows: x x x [w]hether or not [he], as the natural
father, may be denied the custody and parental care of his
own child in the absence of the mother who is away.[7]
The Courts Ruling
The Petition has no merit. However, the assailed Decision
should be modified in regard to its erroneous application of
Section 6 of Rule 99 of the Rules of Court.

Sole Issue
Who Should Have Custody of the Child?

93
Petitioner concedes that Respondent Loreta has
preferential right over their minor child. He insists, however,
that custody should be awarded to him whenever she leaves
for Japan and during the period that she stays there. In other
words, he wants joint custody over the minor, such that the
mother would have custody when she is in the country. But
when she is abroad, he -- as the biological father -- should
have custody.

(1) natural, whether actual or by legal fiction; and (2)spurious,

whether incestuous, adulterous or illicit. [14] A natural child is
one born outside a lawful wedlock of parents who, at the time
of conception of the child, were not disqualified by any
impediment to marry each other.[15] On the other hand, a
spurious child is one born of parents who, at the time of
conception, were disqualified to marry each other on account
of certain legal impediments.[16]

According to petitioner, Loreta is not always in the country.

When she is abroad, she cannot take care of their child. The
undeniable fact, he adds, is that she lives most of the time in
Japan, as evidenced by her Special Power of Attorney dated
May 28, 2001,[8] granting to her sister temporary custody over
the minor.

Parental authority over recognized natural children who

were under the age of majority was vested in the father or the
mother recognizing them.[17] If both acknowledge the child,
authority was to be exercised by the one to whom it was
awarded by the courts; if it was awarded to both, the rule as to
legitimate children applied. In other words, in the latter case,
parental authority resided jointly in the father and the mother.

At present, however, the child is already with his mother in

Japan, where he is studying,[9] thus rendering petitioners
argument moot. While the Petition for Habeas Corpus was
pending before the CA, petitioner filed on July 30, 2002, an
Urgent Motion for a Hold Departure Order,[10] alleging therein
that respondents were preparing the travel papers of the minor
so the child could join his mother and her Japanese husband.
The CA denied the Motion for lack of merit.[11]

[18]

Having been born outside a valid marriage, the minor is

deemed an illegitimate child of petitioner and Respondent
Loreta. Article 176 of the Family Code of the
Philippines[12]explicitly provides that illegitimate children shall
use the surname and shall be under the parental authority of
their mother, and shall be entitled to support in conformity with
this Code. This is the rule regardless of whether the father
admits paternity.[13]
Previously, under the provisions of the Civil Code,
illegitimate children were generally classified into two groups:

The fine distinctions among the various types of

illegitimate children have been eliminated in the Family Code.
[19]
Now, there are only two classes of children -- legitimate
(and those who, like the legally adopted, have the rights of
legitimate children) and illegitimate. All children conceived and
born outside a valid marriage are illegitimate, unless the law
itself gives them legitimate status.[20]
Article 54 of the Code provides these exceptions: Children
conceived or born before the judgment of annulment or
absolute nullity of the marriage under Article 36 has become
final and executory shall be considered legitimate. Children
conceived or born of the subsequent marriage under Article 53
shall likewise be legitimate.
Under Article 176 of the Family Code, all illegitimate
children are generally placed under one category, without any
distinction between natural and spurious.[21] The concept of

94
natural child is important only for purposes of legitimation.
[22]
Without the subsequent marriage, a natural child remains
an illegitimate child.
Obviously, Michael is a natural (illegitimate, under the
Family Code) child, as there is nothing in the records showing
that his parents were suffering from a legal impediment to
marry at the time of his birth. Both acknowledge that Michael is
their son. As earlier explained and pursuant to Article 176,
parental authority over him resides in his mother, Respondent
Loreta, notwithstanding his fathers recognition of him.
David v. Court of Appeals[23] held that the recognition of an
illegitimate child by the father could be a ground for ordering
the latter to give support to, but not custody of, the child. The
law explicitly confers to the mother sole parental authority over
an illegitimate child; it follows that only if she defaults can the
father assume custody and authority over the minor. Of
course, the putative father may adopt his own illegitimate child;
[24]
in such a case, the child shall be considered a legitimate
child of the adoptive parent.[25]
There is thus no question that Respondent Loreta, being
the mother of and having sole parental authority over the
minor, is entitled to have custody of him. [26] She has the right to
keep him in her company.[27] She cannot be deprived of that
right,[28] and she may not even renounce or transfer it except in
the cases authorized by law.[29]
Not to be ignored in Article 213 of the Family Code is the
caveat that, generally, no child under seven years of age shall
be separated from the mother, except when the court finds
cause to order otherwise.
Only the most compelling of reasons, such as the mothers
unfitness to exercise sole parental authority, shall justify her

deprivation of parental authority and the award of custody to

someone else.[30] In the past, the following grounds have been
considered ample justification to deprive a mother of custody
and
parental
authority:
neglect
or
abandonment,
[31]
unemployment, immorality,[32] habitual drunkenness, drug
addiction, maltreatment of the child, insanity, and affliction with
a communicable disease.
Bearing in mind the welfare and the best interest of the
minor as the controlling factor,[33] we hold that the CA did not
err in awarding care, custody, and control of the child to
Respondent Loreta. There is no showing at all that she is unfit
to take charge of him.
We likewise affirm the visitorial right granted by the CA to
petitioner. In Silva v. Court of Appeals,[34] the Court sustained
the visitorial right of an illegitimate father over his children in
view of the constitutionally protected inherent and natural
right of parents over their children.[35] Even when the parents
are estranged and their affection for each other is lost, their
attachment to and feeling for their offspring remain unchanged.
Neither the law nor the courts allow this affinity to suffer,
absent any real, grave or imminent threat to the well-being of
the child.
However, the CA erroneously applied Section 6 of Rule 99
of the Rules of Court. This provision contemplates a situation
in which the parents of the minor are married to each other,
but are separated either by virtue of a decree of legal
separation or because they are living separately de facto. In
the present case, it has been established that petitioner and
Respondent Loreta were never married. Hence, that portion of
the CA Decision allowing the child to choose which parent to
live with is deleted, but without disregarding the obligation of
petitioner to support the child.

95
WHEREFORE, the Petition is DENIED and the assailed
Decision AFFIRMED with
the MODIFICATION that
the
disposition allowing the child, upon reaching ten (10) years of
age, to choose which parent to live with is DELETED for lack
of legal basis. Costs against petitioner.

Manuel T. Molina, was received by this Court on July 8,

2003.
[7]

Petitioners Memorandum, p. 5; rollo, p. 55.

[8]

Special Power of Attorney; CA rollo, p. 29.

[9]

See Memorandum for respondents, p. 2; rollo, p. 66.

SO ORDERED.
Sandoval-Gutierrez, and Corona, JJ., concur.

[10]

CA rollo, pp. 111-113.

[11]

See CA Decision, p. 29; rollo, p. 107.

[12]

Executive Order No. 209 dated July 6, 1987, effective

August 3, 1988.

[13]

Mossesgeld v. Court of Appeals, 300 SCRA 464, 468,

December 23, 1998.

[14]

Reyes v. Court of Appeals, 135 SCRA 439, 448, March 19,

1985.

[15]

Article 269, New Civil Code.

[16]

See Article 269 in relation to Article 287, ibid. See

also Reyes v. Court of Appeals, supra.

[17]

Article 311, New Civil Code.

Carpio Morales , J., on leave.

[1]

Under Rule 45 of the Rules of Court; rollo, pp. 7-21.

[2]

Penned by Justice Amelita G. Tolentino (member), with the

concurrence of Justices Ruben T. Reyes (Division
chairman) and Renato C. Dacudao (member); id., pp.
23-30.

[3]

[4]

Annex B of the Petition; rollo, p. 31.

On April 25, 2002, petitioner filed an Amended Petition
additionally impleading Loreta P. Miguel, the minors
mother, as one of the respondents.

[5]

CA Decision, p. 7; id., p. 29.

[18]

Garcia v. Pongan, 89 Phil. 797, August 31, 1951.

[6]

The case was deemed submitted for decision on August 4,

2003, upon this Courts receipt of respondents
Memorandum, signed by Atty. Joaquin L. de los
Santos. Petitioners Memorandum, signed by Atty.

[19]

Edgardo L. Paras, Civil Code of the Philippines Annotated

(15th ed., 2002), Vol. I, p. 645 (citing Castro v. CA, 173
SCRA 656, May 31, 1989).

96
[20]

Article 165, Family Code.

[21]

See Pascual v. Pascual-Bautista, 207 SCRA 561, March 25,

1992.

[22]

See Article 177, Family Code.

[23]

250 SCRA 82, 86, November 16, 1995.

[24]

See Article 185, Family Code.

[25]

Mossesgeld v. CA, supra.

[26]

David v. Court of Appeals, note 23.

[27]

Article 220, Family Code.

[28]

See Ibanez de Aldecoa v. Hongkong & Shanghai Bank, 30

Phil. 228, 238, March 23, 1915.

[29]

Articles 210, Family Code. The law allows a waiver of

parental authority only in cases of adoption,
guardianship and surrender to a childrens home or an
orphanage; Sagala-Eslao v. Court of Appeals, 334 Phil.
286, 293, January 16, 1997.

[30]

Perez v. Court of Appeals, 255 SCRA 661, 668, March 29,

1996; Lacson v. San Jose-Lacson et al., 133 Phil. 884,
895, August 30, 1968.

[31]

[32]

Medina v. Makabali, 27 SCRA 502, March 28, 1969.

Espiritu v. CA, 312 Phil. 431, March 15, 1995; Cervantes v.
Fajardo, 169 SCRA 575, January 27, 1989; Unson III v.
Navarro, 101 SCRA 183, November 17, 1980.

[33]

Child welfare as an overriding consideration in custodial

award has been shown in several cases decided by
the Supreme Court: Espiritu v. CA, supra; Cervantes v.
Fajardo, supra; Luna v. Intermediate Appellate Court,
137 SCRA 7, June 18, 1985; Unson III v.
Navarro, supra; Medina v. Makabali supra; Lozano v.
Martinez et al., 36 Phil. 976, October 10, 1917.

[34]

275 SCRA 604, 609, July 17, 1997; see also Bondagjy v.
Bondagjy, 371 SCRA 642, 653, December 7, 2001.

[35]

Article II, Section 12, 1987 Constitution.

SECOND DIVISION
[G.R. No. 122906. February 7, 2002]

97
DINAH B. TONOG, petitioner,
vs.

COURT
OF
APPEALS
DAGUIMOL, respondents.

and

EDGAR

V.

DECISION
DE LEON, JR., J.:
Before us is a petition for review on certiorari seeking the
reversal of two (2) Resolutions dated August 29,
1995 and November 29, 1995 issued by the former Second
Division[1] of the Court of Appeals in CA-G.R. SP No.
35971. The first resolution modified the appellate courts
decision promulgated in the said case, and granted custody of
the minor, Gardin Faith Belarde Tonog, to private respondent.
The second resolution denied petitioners motion for
reconsideration.
The pertinent facts are:
On September 23, 1989, petitioner Dinah B. Tonog gave
birth[2] to Gardin Faith Belarde Tonog, her illegitimate daughter
with private respondent Edgar V. Daguimol. Petitioner was
then a nursing student while private respondent was a
licensed physician. They cohabited for a time and lived with
private respondents parents and sister in the latters house
in Quezon City where the infant, Gardin Faith, was a welcome
addition to the family.
A year after the birth of Gardin Faith, petitioner left for the
United States of America where she found work as a
registered nurse. Gardin Faith was left in the care of her father
(private respondent herein) and paternal grandparents.

On January 10, 1992, private respondent filed a petition

for guardianship over Gardin Faith, docketed as Sp. Proc. No.
Q-92-11053, in the Regional Trial Court of Quezon City.
On March 9, 1992, the trial court rendered judgment
appointing private respondent as legal guardian of the minor,
Gardin Faith.
Petitioner avers that she learned of the judgment of the
trial court rendered in Sp. Proc. No. Q-92-11053 only on April
1, 1992. Accordingly, on May 27, 1992, she filed a petition for
relief from judgment. In a resolution dated September 15,
1992, the trial court set aside its original judgment and allowed
petitioner to file her opposition to private respondents
petition. The latter, in turn, filed a motion for reconsideration. In
a related incident, petitioner filed on October 4, 1993, a motion
to remand custody of Gardin Faith to her.
On November 18, 1994, the trial court issued a resolution
denying private respondents motion for reconsideration and
granting petitioners motion for custody of their child, Gardin.
Petitioner moved for immediate execution of the said
resolution.
Due to the adverse turn of events, private respondent filed
a petition for certiorari before the Court of Appeals, docketed
as CA-G.R. SP No. 35971, questioning the actuations of the
trial court. On March 21, 1995, the appellate court dismissed
the petition on the ground of lack of merit. However, after
private respondent filed a motion for reconsideration, the
appellate court issued a Resolution[3] dated August 29,
1995 modifying its decision, as follows:
AlthoughWedofindthePetitiondismissible,insofarasitassailsthe
September15,1993ResolutionoftherespondentCourt,givingdue
coursetoprivaterespondentsPetitionforRelieffromJudgment,and
theNovember18,1995ResolutiondenyinghisMotionfor

98
Reconsideration,Wediscernagoodgroundtoletphysicalcustody
ofsubjectchild,GardinFaithBelardeTonog,continueunderthe
petitioner,withwhomthesaidchildhadbeenliving,sincebirth.
Whileitisunderstandableforprivaterespondent,asmother,toassert
andseekenforcementofherlegalandnaturalrightsasthenatural
guardianofherchild,theemotionalandpsychologicaleffectsupon
thelatterofachangeincustodyshouldbeconsidered.Tobesure,
transferofcustodyofthechildfrompetitionertoprivaterespondent
willbepainfulforthechildwho,allherlife,hasbeeninthe
companyofpetitionerandherpaternalgrandparents.
Now,inasmuchastheissueofguardianshipandcustodyoverthe
samechildisstillpendingdeterminationbeforetherespondent
Court,thepossibilityofpetitionersappointmentastheguardian
cannotbediscounted.Itwouldcertainlywreakhavoconthechilds
psychologicalmakeuptogivehertothecustodyofprivate
respondent,onlytoreturnhertopetitionershouldthelatterprevailin
themaincase.Subjectingthechildtoemotionalseesawshouldbe
avoided.Itisthusmoreprudenttoletphysicalcustodyofthechildin
questionbewithpetitioneruntilthematterofhercustodyshallhave
beendeterminedbyfinaljudgment.
WHEREFORE,theDecision,promulgatedhereonMarch21,
1995isaccordinglyMODIFIED,andstatusquowithrespecttothe
physicalcustodyofthechild,GardinFaithBelardeTonog,is
ordered.Itisunderstoodthatthelattershallremainwithpetitioner
untilotherwiseadjudged.
Petitioner thus interposed the instant appeal after the
appellate court denied her motion for reconsideration in its
Resolution[4] dated November 29, 1995.
Petitioner contends that she is entitled to the custody of
the minor, Gardin Faith, as a matter of law. First, as the mother

of Gardin Faith, the law confers parental authority upon her as

the mother of the illegitimate minor. Second, Gardin Faith
cannot be separated from her since she had not, as of then,
attained the age of seven. Employing simple arithmetic
however, it appears that Gardin Faith is now twelve years old.
In custody disputes, it is axiomatic that the paramount
criterion is the welfare and well-being of the child. [5] In arriving
at its decision as to whom custody of the minor should be
given, the court must take into account the respective
resources and social and moral situations of the contending
parents.[6]
In turn, the parents right to custody over their children is
enshrined in law. Article 220 of the Family Code thus provides
that parents and individuals exercising parental authority over
their unemancipated children are entitled, among other rights,
to keep them in their company. In legal contemplation, the true
nature of the parent-child relationship encompasses much
more than the implication of ascendancy of one and obedience
by the other. We explained this in Santos, Sr. v. Court of
Appeals: [7]
Therightofcustodyaccordedtoparentsspringsfromtheexerciseof
parentalauthority.ParentalauthorityorpatriapotestasinRoman
Lawisthejuridicalinstitutionwherebyparentsrightfullyassume
controlandprotectionoftheirunemancipatedchildrentotheextent
requiredbythelattersneeds.Itisamassofrightsandobligations
whichthelawgrantstoparentsforthepurposeofthechildrens
physicalpreservationanddevelopment,aswellasthecultivationof
theirintellectandtheeducationoftheirheartandsenses.Asregards
parentalauthority,thereisnopower,butatask;nocomplexof
rights,butasumofduties;nosovereigntybutasacredtrustforthe
welfareoftheminor.

99
Parentalauthorityandresponsibilityareinalienableandmaynotbe
transferredorrenouncedexceptincasesauthorizedbylaw.Theright
attachedtoparentalauthority,beingpurelypersonal,thelawallowsa
waiverofparentalauthorityonlyincasesofadoption,guardianship
andsurrendertoachildrenshomeoranorphaninstitution.Whena
parententruststhecustodyofaminortoanother,suchasafriendor
godfather,eveninadocument,whatisgivenismerelytemporary
custodyanditdoesnotconstitutearenunciationofparental
authority.Evenifadefiniterenunciationismanifest,thelawstill
disallowsthesame.
Statute sets certain rules to assist the court in making an
informed decision. Insofar as illegitimate children are
concerned, Article 176 of the Family Code provides that
illegitimate children shall be under the parental authority of
their mother. Likewise, Article 213 of the Family Code provides
that [n]o child under seven years of age shall be separated
from the mother, unless the court finds compelling reasons to
order otherwise. It will be observed that in both provisions, a
strong bias is created in favor of the mother.This is specially
evident in Article 213 where it may be said that the law
presumes that the mother is the best custodian. As explained
by the Code Commission:
Thegeneralruleisrecommendedinordertoavoidmanyatragedy
whereamotherhasseenherbabytornawayfromher.Nomancan
soundthedeepsorrowsofamotherwhoisdeprivedofherchildof
tenderage.Theexceptionallowedbytherulehastobefor
compellingreasonsforthegoodofthechild;thosecasesmustindeed
berare,ifthemothersheartisnottobeundulyhurt.Ifshehaserred,
asincasesofadultery,thepenaltyofimprisonmentandthedivorce
decree(relativedivorce)willordinarilybesufficientpunishmentfor
her.Moreover,moralderelictionwillnothaveanyeffectuponthe
babywhoisasyetunabletounderstandhersituation. [8]

This is not intended, however, to denigrate the important role

fathers play in the upbringing of their children. Indeed, we
have recognized that both parents complement each other in
giving nurture and providing that holistic care which takes into
account the physical, emotional, psychological, mental, social
and spiritual needs of the child.[9] Neither does the law nor
jurisprudence intend to downplay a fathers sense of loss when
he is separated from his child:
Whilethebondsbetweenamotherandhersmallchildarespecialin
nature,eitherparent,whetherfatherormother,isboundtosuffer
agonyandpainifdeprivedofcustody.Onecannotsaythathisorher
sufferingisgreaterthanthatoftheotherparent.Itisnotsomuchthe
suffering,pride,andotherfeelingsofeitherparentbutthewelfareof
thechildwhichistheparamountconsideration.[10]
For these reasons, even a mother may be deprived of the
custody of her child who is below seven years of age for
compelling reasons. Instances of unsuitability are neglect,
abandonment, unemployment and immorality, habitual
drunkenness, drug addiction, maltreatment of the child,
insanity, and affliction with a communicable illness.[11] If older
than seven years of age, a child is allowed to state his
preference, but the court is not bound by that choice. The
court may exercise its discretion by disregarding the childs
preference should the parent chosen be found to be unfit, in
which instance, custody may be given to the other parent, or
even to a third person. [12]
In the case at bar, we are being asked to rule on
the temporary custody of the minor, Gardin Faith, since it
appears that the proceedings for guardianship before the trial
court have not been terminated, and no pronouncement has
been made as to who should have final custody of the
minor. Bearing in mind that the welfare of the said minor as the
controlling factor, we find that the appellate court did not err in

100
allowing her father (private respondent herein) to retain in the
meantime parental custody over her. Meanwhile, the child
should not be wrenched from her familiar surroundings, and
thrust into a strange environment away from the people and
places to which she had apparently formed an attachment.
Moreover, whether a mother is a fit parent for her child is
a question of fact to be properly entertained in the special
proceedings before the trial court.[13] It should be recalled that
in a petition for review on certiorari, we rule only on questions
of law. We are not in the best position to assess the parties
respective merits vis--vis their opposing claims for custody. Yet
another sound reason is that inasmuch as the age of the
minor, Gardin Faith, has now exceeded the statutory bar of
seven years, a fortiori, her preference and opinion must first be
sought in the choice of which parent should have the custody
over her person.
A word of caution: our pronouncement here should not be
interpreted to imply a preference toward the father (herein
private respondent) relative to the final custody of the minor,
Gardin Faith. Nor should it be taken to mean as a
statement against petitioners fitness to have final custody of
her said minor daughter. It shall be only understood that, for
the present and until finally adjudged, temporary custody of
the subject minor should remain with her father, the private
respondent herein pending final judgment of the trial court in
Sp. Proc. No. Q-92-11053.
WHEREFORE, the instant petition is hereby DENIED. The
trial court is directed to immediately proceed with hearing Sp.
Proc. No. Q-92-11053 upon notice of this decision.No
pronouncement as to costs.
SO ORDERED.

Bellosillo, (Chairman), Mendoza, and Buena, JJ., concur.

Quisumbing, J., abroad, on official leave.

[1]

Justice Fidel P. Purisima, ponente; Justice Salome A.

Montoya and Justice Godardo A. Jacinto, concurring.

[2]

Birth

[3]

Rollo, pp. 30-32.

[4]

Rollo, pp. 34-35.

[5]

Silva v. Court of Appeals, 275 SCRA 604, 609 (1997);

Cervantes v. Fajardo, 169 SCRA 575, 578 (1989).

[6]

Unson III v. Navarro, 101 SCRA 183, 189 (1980).

[7]

242 SCRA 407, 411 (1995).

[8]

Report of the Code Commission, p. 12, as cited in A.

Sempio-Diy, Handbook on the Family Code of the
Philippines 297 (1988).

[9]

Perez v. Court of Appeals, 255 SCRA 661, 665 (1996).

Certificate,
Annex
Comment; Rollo, p. 73.

9, Private

Respondents

[10]

Espiritu v. Court of Appeals, 242 SCRA 362, 368 (1995).

[11]

Perez v. Court of Appeals, supra, at 668.

101
[12]

Espiritu v. Court of Appeals, supra, at 368.

[13]

Cf. Hontiveros, Jr. v. Intermediate Appellate Court, 132

SCRA 745, 754 (1984).

This is a petition to review, under Rule 45 of the Rules of

Court, the July 5, 2002 resolution1 of the Court of Appeals,
Sixteenth Division, in CA G.R. SP No. 70501 dismissing the
petition for habeas corpus on the grounds of lack of jurisdiction
and lack of substance. The dispositive portion2 read:
WHEREFORE, the Court DISMISSES the petition for
habeas corpus on the grounds that: a) this Court has
no jurisdiction over the subject matter of the petition;
and b) the petition is not sufficient in substance.
Petitioner, an American, and respondent, a Filipino, were
married on August 28, 1998 in the Catholic Evangelical Church
at United Nations Avenue, Manila. A year later, respondent
gave birth to a baby girl whom they named Sequeira Jennifer
Delle Francisco Thornton.

THIRD DIVISION

G.R. No. 154598

August 16, 2004

IN THE MATTER OF APPLICATION FOR THE ISSUANCE

OF A WRIT OF HABEAS CORPUS
RICHARD BRIAN THORNTON for and in behalf of the
minor child SEQUEIRA JENNIFER DELLE FRANCISCO
THORNTON, petitioner,
vs.
ADELFA FRANCISCO THORNTON, respondent.
DECISION
CORONA, J.:

However, after three years, respondent grew restless and

bored as a plain housewife. She wanted to return to her old job
as a "guest relations officer" in a nightclub, with the freedom to
go out with her friends. In fact, whenever petitioner was out of
the country, respondent was also often out with her friends,
leaving her daughter in the care of the househelp.
Petitioner admonished respondent about her irresponsibility
but she continued her carefree ways. On December 7, 2001,
respondent left the family home with her daughter Sequiera
without notifying her husband. She told the servants that she
was bringing Sequiera to Purok Marikit, Sta. Clara, Lamitan,
Basilan Province.
Petitioner filed a petition for habeas corpus in the designated
Family Court in Makati City but this was dismissed,
presumably because of the allegation that the child was in
Basilan. Petitioner then went to Basilan to ascertain the
whereabouts of respondent and their daughter. However, he

102
did not find them there and the barangay office of Sta. Clara,
Lamitan, Basilan, issued a certification3 that respondent was
no longer residing there.
Petitioner gave up his search when he got hold of
respondents cellular phone bills showing calls from different
places such as Cavite, Nueva Ecija, Metro Manila and other
provinces. Petitioner then filed another petition for habeas
corpus, this time in the Court of Appeals which could issue a
writ of habeas corpus enforceable in the entire country.
However, the petition was denied by the Court of Appeals on
the ground that it did not have jurisdiction over the case. It
ruled that since RA 8369 (The Family Courts Act of 1997) gave
family courts exclusive original jurisdiction over petitions for
habeas corpus, it impliedly repealed RA 7902 (An Act
Expanding the Jurisdiction of the Court of Appeals) and Batas
Pambansa 129 (The Judiciary Reorganization Act of 1980):
Under Sec. 9 (1), BP 129 (1981) the Intermediate
Appellate Court (now Court of Appeals) has jurisdiction
to issue a writ of habeas corpus whether or not in aid of
its appellate jurisdiction. This conferment of jurisdiction
was re-stated in Sec. 1, RA 7902 (1995), an act
expanding the jurisdiction of this Court. This jurisdiction
finds its procedural expression in Sec. 1, Rule 102 of
the Rules of Court.
In 1997, RA 8369 otherwise known as Family Courts
Act was enacted. It provides:
Sec. 5. Jurisdiction of Family Court. The
Family Courts shall have exclusive original
jurisdiction to hear and decide the following
cases:

xxx

xxx

xxx

b. Petition for guardianship, custody of

children, habeas corpus in relation to the
latter.
The vital question is, did RA 8369 impliedly repeal BP
129 and RA 7902 insofar as the jurisdiction of this
Court to issue writ of habeas corpus in custody of
minor cases is concerned? The simple answer is, yes,
it did, because there is no other meaning of the word
"exclusive" than to constitute the Family Court as the
sole court which can issue said writ. If a court other
than the Family Court also possesses the same
competence, then the jurisdiction of the former is not
exclusive but concurrent and such an interpretation is
contrary to the simple and clear wording of RA 8369.
Petitioner argues that unless this Court assumes
jurisdiction over a petition for habeas corpus involving
custody of minors, a respondent can easily evade the
service of a writ of habeas corpus on him or her by just
moving out of the region over which the Regional Trial
Court issuing the writ has territorial jurisdiction. That
may be so but then jurisdiction is conferred by law. In
the absence of a law conferring such jurisdiction in this
Court, it cannot exercise it even if it is demanded by
expediency or necessity.
Whether RA 8369 is a good or unwise law is not within
the authority of this Court or any court for that matter
to determine. The enactment of a law on jurisdiction
is within the exclusive domain of the legislature. When
there is a perceived defect in the law, the remedy is not
to be sought form the courts but only from the
legislature.

103
The only issue before us therefore is whether the Court of
Appeals has jurisdiction to issue writs of habeas corpus in
cases involving custody of minors in the light of the provision
in RA 8369 giving family courts exclusive original jurisdiction
over such petitions.
In his comment, the Solicitor General points out that Section
20 of the Rule on Custody of Minors and Writ of Habeas
Corpus in Relation to Custody of Minors (A.M. No. 03-04-04SC, effective May 15, 2003) has rendered the issue moot.
Section 20 of the rule provides that a petition for habeas
corpus may be filed in the Supreme Court,4Court of Appeals,
or with any of its members and, if so granted, the writ shall be
enforceable anywhere in the Philippines.5
The petition is granted.
The Court of Appeals should take cognizance of the case
since there is nothing in RA 8369 that revoked its jurisdiction to
issue writs of habeas corpus involving the custody of minors.
The Court of Appeals opines that RA 8369 impliedly repealed
RA 7902 and BP 129 since, by giving family courts exclusive
jurisdiction over habeas corpus cases, the lawmakers intended
it to be the sole court which can issue writs of habeas corpus.
To the court a quo, the word "exclusive" apparently cannot be
construed any other way.
We disagree with the CAs reasoning because it will result in
an iniquitous situation, leaving individuals like petitioner
without legal recourse in obtaining custody of their children.
Individuals who do not know the whereabouts of minors they
are looking for would be helpless since they cannot seek
redress from family courts whose writs are enforceable only in
their respective territorial jurisdictions. Thus, if a minor is being
transferred from one place to another, which seems to be the

case here, the petitioner in a habeas corpus case will be left

without legal remedy. This lack of recourse could not have
been the intention of the lawmakers when they passed the
Family Courts Act of 1997. As observed by the Solicitor
General:
Under the Family Courts Act of 1997, the avowed
policy of the State is to "protect the rights and promote
the welfare of children." The creation of the Family
Court is geared towards addressing three major issues
regarding childrens welfare cases, as expressed by
the legislators during the deliberations for the law. The
legislative intent behind giving Family Courts exclusive
and original jurisdiction over such cases was to avoid
further clogging of regular court dockets, ensure
greater sensitivity and specialization in view of the
nature of the case and the parties, as well as to
guarantee that the privacy of the children party to the
case remains protected.
The primordial consideration is the welfare and best interests
of the child. We rule therefore that RA 8369 did not divest the
Court of Appeals and the Supreme Court of their jurisdiction
over habeas corpus cases involving the custody of minors.
Again, to quote the Solicitor General:
To allow the Court of Appeals to exercise jurisdiction
over the petition for habeas corpus involving a minor
child whose whereabouts are uncertain and transient
will not result in one of the situations that the legislature
seeks to avoid. First, the welfare of the child is
paramount. Second, the ex parte nature of habeas
corpus proceedings will not result in disruption of the
childs privacy and emotional well-being; whereas to
deprive the appellate court of jurisdiction will result in

104
the evil sought to be avoided by the legislature: the
childs welfare and well being will be prejudiced.
This is not the first time that this Court construed the word
"exclusive" as not foreclosing resort to another jurisdiction. As
correctly cited by the Solicitor General, in Floresca vs. Philex
Mining Corporation,6 the heirs of miners killed in a work-related
accident were allowed to file suit in the regular courts even if,
under the Workmens Compensation Act, the Workmens
Compensation Commissioner had exclusive jurisdiction over
such cases.
We agree with the observations of the Solicitor General that:
While Floresca involved a cause of action different from
the case at bar. it supports petitioners submission that
the word "exclusive" in the Family Courts Act of 1997
may not connote automatic foreclosure of the
jurisdiction of other courts over habeas corpus cases
involving minors. In the same manner that the
remedies in the Floresca case were selective, the
jurisdiction of the Court of Appeals and Family Court in
the case at bar is concurrent. The Family Court can
issue writs of habeas corpus enforceable only within its
territorial jurisdiction. On the other hand, in cases
where the territorial jurisdiction for the enforcement of
the writ cannot be determined with certainty, the Court
of Appeals can issue the same writ enforceable
throughout the Philippines, as provided in Sec. 2, Rule
102 of the Revised Rules of Court, thus:
The Writ of Habeas Corpus may be granted by
the Supreme Court, or any member thereof, on
any day and at any time, or by the Court of
Appeals or any member thereof in the
instances authorized by law, and if so granted it

shall be enforceable anywhere in the

Philippines, and may be made returnable before
the court or any member thereof, or before a
Court of First Instance, or any judge thereof for
hearing and decision on the merits. It may also
be granted by a Court of First Instance, or a
judge thereof, on any day and at any time, and
returnable before himself, enforceable only
within his judicial district. (Emphasis supplied)
In ruling that the Commissioners "exclusive" jurisdiction did
not foreclose resort to the regular courts for damages, this
Court, in the same Floresca case, said that it was merely
applying and giving effect to the constitutional guarantees of
social justice in the 1935 and 1973 Constitutions and
implemented by the Civil Code. It also applied the wellestablished rule that what is controlling is the spirit and intent,
not the letter, of the law:
"Idolatrous reverence" for the law sacrifices the human
being. The spirit of the law insures mans survival and
ennobles him. In the words of Shakespeare, "the letter
of the law killeth; its spirit giveth life."
xxx

xxx

xxx

It is therefore patent that giving effect to the social

justice guarantees of the Constitution, as implemented
by the provisions of the New Civil Code, is not an
exercise of the power of law-making, but is rendering
obedience to the mandates of the fundamental law and
the implementing legislation aforementioned.
Language is rarely so free from ambiguity as to be incapable
of being used in more than one sense. Sometimes, what the
legislature actually had in mind is not accurately reflected in

105
the language of a statute, and its literal interpretation may
render it meaningless, lead to absurdity, injustice or
contradiction.7 In the case at bar, a literal interpretation of the
word "exclusive" will result in grave injustice and negate the
policy "to protect the rights and promote the welfare of
children"8 under the Constitution and the United Nations
Convention on the Rights of the Child. This mandate must
prevail over legal technicalities and serve as the guiding
principle in construing the provisions of RA 8369.
Moreover, settled is the rule in statutory construction that
implied repeals are not favored:
The two laws must be absolutely incompatible, and a
clear finding thereof must surface, before the inference
of implied repeal may be drawn. The rule is expressed
in the maxim, interpretare et concordare leqibus est
optimus interpretendi, i.e., every statute must be so
interpreted and brought into accord with other laws as
to form a uniform system of jurisprudence. The
fundament is that the legislature should be presumed
to have known the existing laws on the subject and not
have enacted conflicting statutes. Hence, all doubts
must be resolved against any implied repeal, and all
efforts should be exerted in order to harmonize and
give effect to all laws on the subject."9
The provisions of RA 8369 reveal no manifest intent to revoke
the jurisdiction of the Court of Appeals and Supreme Court to
issue writs of habeas corpus relating to the custody of minors.
Further, it cannot be said that the provisions of RA 8369, RA
7092 and BP 129 are absolutely incompatible since RA 8369
does not prohibit the Court of Appeals and the Supreme Court
from issuing writs of habeas corpus in cases involving the
custody of minors. Thus, the provisions of RA 8369 must be
read in harmony with RA 7029 and BP 129 that family courts

have concurrent jurisdiction with the Court of Appeals and the

Supreme Court in petitions for habeas corpus where the custody of
minors is at issue.
In any case, whatever uncertainty there was has been settled
with the adoption of A.M. No. 03-03-04-SC Re: Rule on
Custody of Minors and Writ of Habeas Corpus in Relation to
Custody of Minors. Section 20 of the rule provides that:
Section 20. Petition for writ of habeas corpus.- A
verified petition for a writ of habeas corpus involving
custody of minors shall be filed with the Family Court.
The writ shall be enforceable within its judicial region to
which the Family Court belongs.
xxx

xxx

xxx

The petition may likewise be filed with the Supreme

Court, Court of Appeals, or with any of its members
and, if so granted, the writ shall be enforceable
anywhere in the Philippines. The writ may be made
returnable to a Family Court or to any regular court
within the region where the petitioner resides or where
the minor may be found for hearing and decision on the
merits. (Emphasis Ours)
From the foregoing, there is no doubt that the Court of Appeals
and Supreme Court have concurrent jurisdiction with family
courts in habeas corpus cases where the custody of minors is
involved.
One final note. Requiring the serving officer to search for the
child all over the country is not an unreasonable availment of a
remedy which the Court of Appeals cited as a ground for
dismissing the petition. As explained by the Solicitor General:10

106
That the serving officer will have to "search for the child
all over the country" does not represent an
insurmountable or unreasonable obstacle, since such a
task is no more different from or difficult than the duty
of the peace officer in effecting a warrant of arrest,
since the latter is likewise enforceable anywhere within
the Philippines.
WHEREFORE, the petition is hereby GRANTED. The petition
for habeas corpus in CA-G.R.-SP-No. 70501 is
hereby REINSTATED and REMANDED to the Court of
Appeals, Sixteenth Division.
SO ORDERED.
Panganiban,, J., Chairman, and Carpio Morales, JJ., concur.
Sandoval-Gutierrez, on leave.

xxx

xxx

xxx."

Section 20. Petition for writ of habeas corpus. A

verified petition for a writ of habeas corpus involving
custody of minors shall be filed with the Family Court.
The writ shall be enforceable within its judicial region to
which the Family Courts belong.
xxx

xxx

xxx

The petition may likewise be filed with the Supreme

Court, Court of Appeals or with any of its members and,
if so granted, the writ shall be enforecebale anywhere
in the Philippines. The writ may be returnable to a
Family Court or any regular court within the region
where the petitioner resides or where the minor may be
found for hearing and decision on the merits.
6

136 SCRA 141 [1985].

Agpalo Statutory Constitution, 1986, p. 98.

Footnotes
1

Penned by Associate Justice Hilarion A. Aquino and

concurred in by Associate Justices Edgardo P. Cruz
and Regalado E. Maambong.
2

CA Decision, p. 3.

Rollo, p. 49.

SEC. 2. State and National Policies.- The State shall

protect the rights and promote the welfare of children in
keeping with the mandate of the Constitution and the
precepts of the United Nations Convention on the
Rights of the Child. xxx
9

Article VIII. Section 5. "The Supreme Court shall have

the following powers:

Republic vs. Marcopper Mining, 335 SCRA 386

[2000].
10

(1) Exercise original jurisdiction over petitions for

habeas corpus.

Ibid. at 120.

107
Respondent.

Promulgated:
July 12, 2007

x------------------------------------x

DECISION
CORONA, J.:
When a family breaks up, the children are always
the victims. The ensuing battle for custody of the minor
children is not only a thorny issue but also a highly
sensitive and heart-rending affair. Such is the case here.
Even the usually technical subject of jurisdiction
became emotionally charged.
FIRST DIVISION

FELIPE N. MADRIAN,
Petitioner,

-versus-

G.R. No. 159374

Present:
PUNO, C.J., Chairperson,
SANDOVAL-GUTIERREZ,*
CORONA,
AZCUNA and
GARCIA,** JJ.

FRANCISCA R. MADRIAN,

Petitioner Felipe N. Madrian and respondent Francisca

R. Madrian were married on July 7, 1993 in Paraaque
City. They resided in San Agustin Village, Brgy.
Moonwalk, Paraaque City.
Their union was blessed with three sons and a
daughter: Ronnick, born on January 30, 1994; Phillip,
born on November 19, 1996; Francis Angelo, born on
May 12, 1998 and Krizia Ann, born on December 12,
2000.
After a bitter quarrel on May 18, 2002, petitioner
allegedly left their conjugal abode and took their three
sons with him to Ligao City, Albay and subsequently to

108
Sta. Rosa, Laguna. Respondent sought the help of her
parents and parents-in-law to patch things up between
her and petitioner to no avail. She then brought the
matter to the Lupong Tagapamayapa in their barangay
but this too proved futile.
Thus, respondent filed a petition for habeas
corpus of Ronnick, Phillip and Francis Angelo in the
Court of Appeals, alleging that petitioners act of leaving
the conjugal dwelling and going to Albay and then to
Laguna disrupted the education of their children and
deprived them of their mothers care. She prayed that
petitioner be ordered to appear and produce their sons
before the court and to explain why they should not be
returned to her custody.
Petitioner and respondent appeared at the hearing on
September 17, 2002. They initially agreed that petitioner
would return the custody of their three sons to
respondent. Petitioner, however, had a change of
heart[1] and decided to file a memorandum.
On
September
3,
2002,
petitioner
filed
his
[2]
memorandum alleging that respondent was unfit to
take custody of their three sons because she was
habitually drunk, frequently went home late at night or
in the wee hours of the morning, spent much of her time
at a beer house and neglected her duties as a mother.
He claimed that, after their squabble on May 18, 2002,
it was respondent who left, taking their daughter with
her. It was only then that he went to Sta. Rosa, Laguna

where he worked as a tricycle driver. He submitted a

certification from the principal of the Dila Elementary
School in Sta. Rosa, Laguna that Ronnick and Phillip
were enrolled there. He also questioned the jurisdiction
of the Court of Appeals claiming that under Section 5(b)
of RA 8369 (otherwise known as the Family Courts Act
of 1997) family courts have exclusive original
jurisdiction to hear and decide the petition for habeas
corpus filed by respondent.[3]
For her part, respondent averred that she did not
leave their home on May 18, 2002 but was driven out by
petitioner. She alleged that it was petitioner who was an
alcoholic, gambler and drug addict. Petitioners
alcoholism and drug addiction impaired his mental
faculties, causing him to commit acts of violence against
her and their children. The situation was aggravated by
the fact that their home was adjacent to that of her inlaws who frequently meddled in their personal problems.
[4]

On
October
21,
2002,
the
Court
of
Appeals[5] rendered a decision[6] asserting its authority to
take cognizance of the petition and ruling that, under
Article 213 of the Family Code, respondent was entitled
to the custody of Phillip and Francis Angelo who were at
that time aged six and four, respectively, subject to the
visitation rights of petitioner. With respect to Ronnick
who was then eight years old, the court ruled that his
custody should be determined by the proper family court

109
in a special proceeding on custody of minors under Rule
99 of the Rules of Court.
Petitioner moved for reconsideration of the Court
of Appeals decision but it was denied. Hence, this
recourse.
Petitioner challenges the jurisdiction of the Court
of Appeals over the petition for habeas corpus and
insists that jurisdiction over the case is lodged in the
family courts under RA 8369. He invokes Section 5(b) of
RA 8369:
Section 5. Jurisdiction of Family Courts.
The Family Courts shall have exclusive original
jurisdiction to hear and decide the following
cases:
xxxxxxxxx
b) Petitions for guardianship, custody of
children, habeas corpus in relation to the latter;
xxxxxxxxx
Petitioner is wrong.
In Thornton v. Thornton,[7] this Court resolved the issue
of the Court of Appeals jurisdiction to issue writs
of habeas corpus in cases involving custody of minors in
the light of the provision in RA 8369 giving family courts
exclusive original jurisdiction over such petitions:

The Court of Appeals should take

cognizance of the case since there is nothing
in RA 8369 that revoked its jurisdiction to issue
writs of habeas corpus involving the custody
of minors.
xxxxxxxxx
We rule therefore that RA 8369 did not divest
the Court of Appeals and the Supreme Court of
their jurisdiction over habeas corpus cases
involving the custody of minors.
xxxxxxxxx
The provisions of RA 8369 reveal no manifest
intent to revoke the jurisdiction of the Court of
Appeals and Supreme Court to issue writs
of habeas corpusrelating to the custody of minors.
Further, it cannot be said that the provisions of RA
8369, RA 7092 [An Act Expanding the Jurisdiction
of the Court of Appeals] and BP 129 [The Judiciary
Reorganization Act of 1980] are absolutely
incompatible since RA 8369 does not prohibit the
Court of Appeals and the Supreme Court from
issuing writs of habeas corpus in cases involving
the custody of minors. Thus, the provisions of RA
8369 must be read in harmony with RA 7029 and
BP 129 thatfamily courts have concurrent
jurisdiction with the Court of Appeals and the
Supreme Court in petitions for habeas
corpus where the custody of minors is at issue.
[8]
(emphases supplied)

110

The jurisdiction of the Court of Appeals over petitions

for habeas corpus was further affirmed by A.M. No. 0303-04-SC (April 22, 2004) in Re: Rule on Custody of
Minors and Writ of Habeas Corpus in Relation to
Custody of Minors:
In any case, whatever uncertainty there was
has been settled with the adoption of A.M. No.
03-03-04-SC Re: Rule on Custody of Minors
and Writ of Habeas Corpus in Relation to
Custody of Minors. Section 20 of the rule
provides that:
Section 20. Petition for writ of
habeas corpus. A verified petition for a
writ of habeas corpus involving custody
of minors shall be filed with the Family
Court. The writ shall be enforceable
within its judicial region to which the
Family Court belongs.
xxxxxxxxx
The petition may likewise be filed
with the Supreme Court, Court of
Appeals, or with any of its
members and, if so granted, the writ
shall be enforceable anywhere in the
Philippines. The writ may be made
returnable to a Family Court or to any
regular court within the region where
the petitioner resides or where the
minor may be found for hearing and
decision on the merits.

From the foregoing, there is no doubt that the

Court of Appeals and Supreme Court have
concurrent jurisdiction with family courts
in habeas corpuscases where the custody of
minors is involved.[9] (emphases supplied)
We note that after petitioner moved out of their Paraaque
residence on May 18, 2002, he twice transferred his
sons to provinces covered by different judicial regions.
This situation is what the Thornton interpretation of RA
8369s provision on jurisdiction precisely addressed:
[The reasoning that by giving family courts
exclusive
jurisdiction
over habeas
corpus cases, the lawmakers intended them to
be the sole courts which can issue writs
of habeas corpus] will result in an iniquitous
situation, leaving individuals like [respondent]
without legal recourse in obtaining custody of
their children. Individuals who do not know the
whereabouts of minors they are looking for
would be helpless since they cannot seek
redress from family courts whose writs are
enforceable only in their respective territorial
jurisdictions. Thus, if a minor is being
transferred from one place to another,
which seems to be the case here, the
petitioner in a habeas corpus case will be
left without legal remedy. This lack of
recourse could not have been the intention
of the lawmakers when they passed [RA
8369].[10]
Moreover, a careful reading of Section 5(b) of RA
8369 reveals that family courts are vested with original

111
exclusive jurisdiction in custody cases, not in habeas
corpus cases. Writs of habeas corpus which may be
issued exclusively by family courts under Section 5(b) of
RA 8369 pertain to the ancillary remedy that may be
availed of in conjunction with a petition for custody of
minors under Rule 99 of the Rules of Court. In other
words, the issuance of the writ is merely ancillary to the
custody case pending before the family court. The writ
must be issued by the same court to avoid splitting of
jurisdiction, conflicting decisions, interference by a coequal court and judicial instability.
The rule therefore is: when by law jurisdiction is
conferred on a court or judicial officer, all auxiliary
writs, processes and other means necessary to carry it
into effect may be employed by such court or officer.
[11]
Once a court acquires jurisdiction over the subject
matter of a case, it does so to the exclusion of all other
courts, including related incidents and ancillary
matters.
Accordingly, the petition is hereby DENIED.

FIRST DIVISION
[G.R. No. 143363. February 6, 2002]

ST. MARYS ACADEMY, petitioner,

vs. WILLIAM CARPITANOS and LUCIA S. CARPITANOS,
GUADA DANIEL, JAMES DANIEL II, JAMES
DANIEL,
SR., and VIVENCIO
VILLANUEVA, respondents.

Costs against petitioner.

DECISION
SO ORDERED.

PARDO, J.:
RENATO C. CORONA
Associate Justice

The Case
The case is an appeal via certiorari from the decision[1] of
the Court of Appeals as well as the resolution denying

112
reconsideration, holding petitioner liable for damages arising
from an accident that resulted in the death of a student who
had joined a campaign to visit the public schools
in Dipolog City to solicit enrollment.
The Facts
The facts, as found by the Court of Appeals, are as
follows:
Claimingdamagesforthedeathoftheironlyson,Sherwin
Carpitanos,spousesWilliamCarpitanosandLuciaCarpitanosfiled
onJune9,1995acaseagainstJamesDanielIIandhisparents,James
DanielSr.andGuadaDaniel,thevehicleowner,Vivencio
VillanuevaandSt.MarysAcademybefore
theRegionalTrialCourtofDipologCity.
On20February1997,Branch6of
theRegionalTrialCourtofDipologCityrendereditsdecisionthe
dispositiveportionofwhichreadsasfollows:
WHEREFORE,PREMISESCONSIDERED,judgmentishereby
renderedinthefollowingmanner:
1.DefendantSt.MarysAcademyofDipologCity,isherebyordered
topayplaintiffsWilliamCarpitanosandLuisaCarpitanos,the
followingsumsofmoney:
a. FIFTY THOUSAND PESOS (P50,000.00) indemnity
for the loss of life of Sherwin S. Carpitanos;
b. FORTY THOUSAND PESOS (P40,000.00) actual
damages incurred by plaintiffs for burial and related
expenses;

c. TEN THOUSAND
attorneys fees;

PESOS

(P10,000.00)

for

d. FIVE
HUNDRED
THOUSAND
PESOS
(P500,000.00) for moral damages; and to pay
costs.
2.Theirliabilitybeingonlysubsidiary,defendantsJamesDaniel,Sr.
andGuadaDanielareherebyorderedtopayhereinplaintiffsthe
amountofdamagesabovestatedintheeventofinsolvencyof
principalobligorSt.MarysAcademyofDipologCity;
3.DefendantJamesDanielII,beingaminoratthetimeofthe
commissionofthetortandwhowasunderspecialparentalauthority
ofdefendantSt.MarysAcademy,isABSOLVEDfrompayingthe
abovestateddamages,samebeingadjudgedagainstdefendantsSt.
MarysAcademy,andsubsidiarily,againsthisparents;
4.DefendantVivencioVillanuevaisherebyABSOLVEDofany
liability.Hiscounterclaimnotbeinginorderasearlierdiscussedin
thisdecision,isherebyDISMISSED.
ITISSOORDERED.(Decision,pp.3233;Records,pp.205206).
Fromtherecordsitappearsthatfrom13to20February1995,
defendantappellantSt.MarysAcademyofDipologCityconducted
anenrollmentdrivefortheschoolyear19951996.Afacetofthe
enrollmentcampaignwasthevisitationofschoolsfromwhere
prospectiveenrolleeswerestudying.AsastudentofSt.Marys
Academy,SherwinCarpitanoswaspartofthecampaigning
group.Accordingly,onthefatefulday,Sherwin,alongwithother
highschoolstudentswereridinginaMitsubishijeepownedby
defendantVivencioVillanuevaontheirwaytoLarayanElementary
School,Larayan,DapitanCity.ThejeepwasdrivenbyJamesDaniel
IIthen15yearsoldandastudentofthesameschool.Allegedly,the

113
latterdrovethejeepinarecklessmannerandasaresultthejeep
turnedturtle.

was negligent in allowing a minor to drive and in not having a

teacher accompany the minor students in the jeep.

SherwinCarpitanosdiedasaresultoftheinjurieshesustainedfrom
theaccident.[2]

Under Article 218 of the Family Code, the following shall

have special parental authority over a minor child while under
their supervision, instruction or custody: (1) the school, its
administrators and teachers; or (2) the individual, entity or
institution engaged in child care. This special parental
authority and responsibility applies to all authorized activities,
whether inside or outside the premises of the school, entity or
institution. Thus, such authority and responsibility applies to
field trips, excursions and other affairs of the pupils and
students outside the school premises whenever authorized by
the school or its teachers.[9]

In due time, petitioner St. Marys academy appealed the

decision to the Court of Appeals.[3]
On February 29, 2000, the Court of Appeals promulgated
a decision reducing the actual damages to P25,000.00 but
otherwise affirming the decision a quo, in toto.[4]
On February 29, 2000, petitioner St. Marys Academy filed
a motion for reconsideration of the decision. However, on May
22, 2000, the Court of Appeals denied the motion.[5]
Hence, this appeal.[6]
The Issues
1) Whether the Court of Appeals erred in holding the
petitioner liable for damages for the death of
Sherwin Carpitanos.
2) Whether the Court of Appeals erred in affirming the
award of moral damages against the petitioner.
The Courts Ruling
We reverse the decision of the Court of Appeals.
The Court of Appeals held petitioner St. Marys Academy
liable for the death of Sherwin Carpitanos under Articles
218[7] and 219[8] of the Family Code, pointing out that petitioner

Under Article 219 of the Family Code, if the person under

custody is a minor, those exercising special parental authority
are principally and solidarily liable for damages caused by the
acts or omissions of the unemancipated minor while under
their supervision, instruction, or custody.[10]
However, for petitioner to be liable, there must be a finding
that the act or omission considered as negligent was the
proximate cause of the injury caused because the negligence
must have a causal connection to the accident.[11]
Inorderthattheremaybearecoveryforaninjury,however,itmust
beshownthattheinjuryforwhichrecoveryissoughtmustbethe
legitimateconsequenceofthewrongdone;theconnectionbetween
thenegligenceandtheinjurymustbeadirectandnaturalsequence
ofevents,unbrokenbyinterveningefficientcauses.Inotherwords,
thenegligencemustbetheproximatecauseoftheinjury.For,
negligence,nomatterinwhatitconsists,cannotcreatearightof
actionunlessitistheproximatecauseoftheinjurycomplainedof.
Andtheproximatecauseofaninjuryisthatcause,which,innatural
andcontinuoussequence,unbrokenbyanyefficientintervening

114
cause,producestheinjury,andwithoutwhichtheresultwouldnot
haveoccurred.[12]
In this case, the respondents failed to show that the
negligence of petitioner was the proximate cause of the death
of the victim.
Respondents Daniel spouses and Villanueva admitted
that the immediate cause of the accident was not the
negligence of petitioner or the reckless driving of James Daniel
II, but the detachment of the steering wheel guide of the jeep.
In their comment to the petition, respondents Daniel
spouses and Villanueva admitted the documentary exhibits
establishing that the cause of the accident was the
detachment of the steering wheel guide of the jeep. Hence, the
cause of the accident was not the recklessness of James
Daniel II but the mechanical defect in the jeep of Vivencio
Villanueva. Respondents, including the spouses Carpitanos,
parents of the deceased Sherwin Carpitanos, did not dispute
the report and testimony of the traffic investigator who stated
that the cause of the accident was the detachment of the
steering wheel guide that caused the jeep to turn turtle.
Significantly, respondents did not present any evidence to
show that the proximate cause of the accident was the
negligence of the school authorities, or the reckless driving of
James Daniel II. Hence, the respondents reliance on Article
219 of the Family Code that those given the authority and
responsibility under the preceding Article shall be principally
and solidarily liable for damages caused by acts or omissions
of the unemancipated minor was unfounded.
Further, there was no evidence that petitioner school
allowed the minor James Daniel II to drive the jeep of
respondent Vivencio Villanueva. It was Ched Villanueva,

grandson of respondent Vivencio Villanueva, who had

possession and control of the jeep. He was driving the vehicle
and he allowed James Daniel II, a minor, to drive the jeep at
the time of the accident.
Hence, liability for the accident, whether caused by the
negligence of the minor driver or mechanical detachment of
the steering wheel guide of the jeep, must be pinned on the
minors parents primarily. The negligence of petitioner St.
Marys Academy was only a remote cause of the
accident. Between the remote cause and the injury, there
intervened the negligence of the minors parents or the
detachment of the steering wheel guide of the jeep.
Theproximatecauseofaninjuryisthatcause,which,innaturaland
continuoussequence,unbrokenbyanyefficientinterveningcause,
producestheinjury,andwithoutwhichtheresultwouldnothave
occurred.[13]
Considering that the negligence of the minor driver or the
detachment of the steering wheel guide of the jeep owned by
respondent Villanueva was an event over which petitioner St.
Marys Academy had no control, and which was the proximate
cause of the accident, petitioner may not be held liable for the
death resulting from such accident.
Consequently, we find that petitioner likewise cannot be
held liable for moral damages in the amount of P500,000.00
awarded by the trial court and affirmed by the Court of
Appeals.
Though incapable of pecuniary computation, moral
damages may be recovered if they are the proximate result of
the defendants wrongful act or omission.[14] In this case, the
proximate cause of the accident was not attributable to
petitioner.

115
For the reason that petitioner was not directly liable for the
accident, the decision of the Court of Appeals ordering
petitioner to pay death indemnity to respondent Carpitanos
must be deleted. Moreover, the grant of attorneys fees as part
of damages is the exception rather than the rule.[15] The power
of the court to award attorneys fees under Article 2208 of the
Civil Code demands factual, legal and equitable justification.
[16]
Thus, the grant of attorneys fees against the petitioner is
likewise deleted.
Incidentally, there was no question that the registered
owner of the vehicle was respondent Villanueva. He never
denied and in fact admitted this fact. We have held that the
registered owner of any vehicle, even if not used for public
service, would primarily be responsible to the public or to third
persons for injuries caused the latter while the vehicle was
being driven on the highways or streets. [17] Hence, with the
overwhelming evidence presented by petitioner and the
respondent Daniel spouses that the accident occurred
because of the detachment of the steering wheel guide of the
jeep, it is not the school, but the registered owner of the
vehicle who shall be held responsible for damages for the
death of Sherwin Carpitanos.

Davide, Jr., C.J., (Chairman), Kapunan, and YnaresSantiago, JJ., concur.

Puno, J., in the result.

[1]

In CA-G.R. CV No. 56728, promulgated on February 29,

2000, Reyes, Jr., J., ponente, Martin, Jr. and Brawner,
JJ., concurring.

[2]

Rollo, pp. 53-55.

[3]

Docketed as CA-G.R. CV No. 56728.

[4]

Petition, Annex A, Rollo, pp. 52-70.

[5]

Petition, Annex B, Rollo, pp. 72-73.

[6]

Petition filed on July 17, 2000, Rollo, pp. 9-48. On July 16,
2001, we gave due course to the petition, Rollo, pp.
202-203.

[7]

Article 218. The School, its administrators and teachers, or

the individual, entity or institution engaged in child care
shall have special parental authority and responsibility
over the minor child while under their supervision,
instruction or custody. Authority and responsibility shall
apply to all authorized activities whether inside or
outside the premises of the school, entity or institution.

[8]

Article 219. Those given the authority and responsibility

under the preceding Article shall be principally and

The Fallo
WHEREFORE, the Court REVERSES and SETS ASIDE
the decision of the Court of Appeals [18] and that of the trial
court.[19] The Court remands the case to the trial court for
determination of the liability of defendants, excluding petitioner
St. Marys Academy, Dipolog City.
No costs.
SO ORDERED.

116
solidarily liable for damages caused by the acts or
omissions of the unemancipated minor. The parents,
judicial guardians or the persons exercising substitute
parental authority over said minor shall be subsidiarily
liable. The respective liabilities of those referred to in
the preceding paragraph shall not apply if it is proved
that they exercised the proper diligence required under
the particular circumstances.
[9]

[18]

CA-G.R. No. CV No. 56728.

[19]

In Civil Case No. 4924.

Handbook On the Family Code Of the Philippines, Alicia V.

Sempio-Diy (1997), p. 344.

[10]

The Family Code of the Philippines Annotated, Rufus B.

Rodriguez (1990), p. 505.

[11]

Sanitary Steam Laundry, Inc. v. Court of Appeals, 360 Phil.

199, 208 [1998].

[12]

Cruz v. Court of Appeals, 346 Phil. 872, 886 [1997].

[13]

Ford Philippines v. Citibank, G.R. No. 128604, January 29,

2001; Bank of the Philippine Islands v. Court of
Appeals, 326 SCRA 641, 659 [2000]; Bataclan v.
Medina, 102 Phil. 181, 186 [1957].

[14]

Article 2217 of the Civil Code.

[15]

Philtranco Service Enterprises, Inc. v. Court of Appeals, 340

Phil. 98, 111 [1997].

[16]

Morales v. Court of Appeals, 340 Phil. 397, 422 [1997].

[17]

Aguilar Sr. v. Commercial Savings Bank, G.R. No. 128705,

June 29, 2001; Erezo v. Jepte, 102 Phil. 103, 107
[1957].

THIRD DIVISION

117
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 Appeals 1 granting custody of six-year
old Leouel Santos, Jr. to his maternal grandparents and not to
his father, Santos, Sr. What is sought is a decision which
should definitively settle the matter of the care, custody and
control of the boy.
Happily, unlike King Solomon, we need not merely rely on a
"wise and understanding heart," for there is man's law to guide
us and that is, the Family Code.
The antecedent facts giving rise to the case at bench are as
follows:
Petitioner Leouel Santos, Sr., an army lieutenant, and Julia
Bedia a nurse by profession, were married in Iloilo City in
1986. Their union beget only one child, Leouel Santos, Jr. who
was born July 18, 1987.
From the time the boy was released from the hospital until
sometime thereafter, he had been in the care and custody of
his maternal grandparents, private respondents herein,
Leopoldo and Ofelia Bedia.

Petitioner and wife Julia agreed to place Leouel Jr. in the

temporary custody of the latter's parents, the respondent
spouses Bedia. The latter alleged that they paid for all the
hospital bills, as well as the subsequent support of the boy
because petitioner could not afford to do so.
The boy's mother, Julia Bedia-Santos, left for the United States
in May 1988 to work. Petitioner alleged that he is not aware of
her whereabouts and his efforts to locate her in the United
States proved futile. Private respondents claim that although
abroad, their daughter Julia had been sending financial
support to them for her son.
On September 2, 1990, petitioner along with his two brothers,
visited the Bedia household, where three-year old Leouel Jr.
was staying. Private respondents contend that through deceit
and false pretensions, petitioner abducted the boy and
clandestinely spirited him away to his hometown in Bacong,
Negros Oriental.
The spouses Bedia then filed a "Petition for Care, Custody and
Control of Minor Ward Leouel Santos Jr.," before the Regional
Trial Court of Iloilo City, with Santos, Sr. as respondent. 2
After an ex-parte hearing on October 8, 1990, the trial court
issued an order on the same day awarding custody of the child
Leouel Santos, Jr. to his grandparents, Leopoldo and Ofelia
Bedia. 3
Petitioner appealed this Order to the Court of Appeals. 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.

118
The Court of Appeals erred, according to petitioner, in
awarding custody of the boy to his grandparents and not to
himself. He contends that since private respondents have
failed to show that petitioner is an unfit and unsuitable father,
substitute parental authority granted to the boy's grandparents
under Art. 214 of the Family Code is inappropriate.
Petitioner adds that the reasons relied upon by the private
respondents in having custody over the boy, are flimsy and
insufficient to deprive him of his natural and legal right to have
custody.
On the other hand, private respondents aver that they can
provide an air-conditioned room for the boy and that petitioner
would not be in a position to take care of his son since he has
to be assigned to different places. They also allege that the
petitioner did not give a single centavo for the boy's support
and maintenance. When the boy was about to be released
from the hospital, they were the ones who paid the fees
because their daughter and petitioner had no money. Besides,
Julia Bedia Santos, their daughter, had entrusted the boy to
them before she left for the United States. Furthermore,
petitioner's use of trickery and deceit in abducting the child in
1990, after being hospitably treated by private respondents,
does not speak well of his fitness and suitability as a parent.
The Bedias argue that although the law recognizes the right of
a parent to his child's custody, ultimately the primary
consideration is what is best for the happiness and welfare of
the latter. As maternal grandparents who have amply
demonstrated their love and affection for the boy since his
infancy, they claim to be in the best position to promote the
child's welfare.
The issue to be resolved here boils down to who should
properly be awarded custody of the minor Leouel Santos, Jr.

The right of custody accorded to parents springs from the

exercise of parental authority. Parental authority or patria
potestas in Roman Law is the juridical institution whereby
parents rightfully assume control and protection of their
unemancipated children to the extent required by the latter' s
needs. 7 It is a mass of rights and obligations which the law
grants to parents for the purpose of the children's physical
preservation and development, as well as the cultivation of
their intellect and the education of their heart and senses. 8 As
regards parental authority, "there is no power, but a task; no
complex of rights, but a sum of duties; no sovereignty but a
sacred trust for the welfare of the minor." 9
Parental authority and responsibility are inalienable and may
not be transferred or renounced except in cases authorized by
law. 10 The right attached to parental authority, being purely
personal, the law allows a waiver of parental authority only in
cases of adoption, guardianship and surrender to a children's
home or an orphan institution. 11 When a parent entrusts the
custody of a minor to another, such as a friend or godfather,
even in a document, what is given is merely temporary
custody and it does not constitute a renunciation of parental
authority. 12 Even if a definite renunciation is manifest, the law
still disallows the same. 13
The father and mother, being the natural guardians of
unemancipated children, are duty-bound and entitled to keep
them in their custody and
company. 14 The child's welfare is always the paramount
consideration in all questions concerning his care and
custody. 15
The law vests on the father and mother joint parental authority
over the persons of their common children. 16 In case of
absence or death of either parent, the parent present shall
continue exercising parental authority. 17 Only in case of the

119
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

120
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 for the son to experience the
warmth and support which a father can give.

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.

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.

Feliciano, Melo, Vitug and Francisco, JJ., concur.

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?

SO ORDERED.

Footnotes
1 CA-GR CV No. 30563, "In the matter of petition for
care, custody and control of minor Leouel Santos, Jr.,
spouses Leopoldo and Ofelia Bedia, petitionersappellees, v. Leouel Santos, Sr., respondentappellant," Rollo, p. 21.
2 Spec. Proc. No. 4588, Regional Trial Court, Iloilo City,
Branch 29, Judge Ricardo P. Galvez, presiding.
3 Rollo, p. 50.
4 Docketed as CA-GR CV No. 30563.
5 Penned by Justice Serafin V.C. Guingona , with
Justices Vicente V. Mendoza and Jaime M. Lantin,
concurring; Rollo, p. 21.
6 Resolution dated November 16, 1993, Rollo, p. 34.

121
7 Puig Pea, cited in I J. REYES AND R. PUNO, AN
OUTLINE OF THE PHILIPPINE CIVIL LAW, 295 (4th
ed., 1964).

18 Family Code, Art. 214.

8 Reyes v. Alvarez, 8 Phil. 732; 2 Manresa 2l; cited in I

A. TOLENTINO, CIVIL CODE OF THE PHILS.,
COMMENTARIES AND JURISPRUDENCE 604 (1990
ed.).

19 On January 4, 1995, the Court en banc, denied

Leouel Santos, Sr.'s petition for review where he
sought to have his marriage to Julia Bedia-Santos
annulled on the ground of psychological incapacity.
Leouel Santos v. Hon. Court of Appeals and Julia
Rosario Bedia-Santos, G.R. No. 112019.

9 Puig Pea cited in Reyes and Puno, supra at note 7.

20 Rollo, p. 29.

10 Family Code, Arts. 210, 223 and 224.

21 Rollo, pp. 31-32.

11 Family Code, Arts. 222-224; Act No. 3094.

22 Bacayo v. Calum, (CA) 53 O.G.8607.

12 Cells v. Cafuir, 86 Phil. 555; De La Cruz v. Lim Chai

Lay (CA) GR 14080-R, August 15, 1955; Bacayo v.
Calum, (CA) O.G.8607.
13 Family Code, Art. 210, taken from Art. 313 of the
Civil Code.
14 Family Code , Art. 209 and 211; Aldecoa v.
Hongkong and Shanghai Bank, 30 Phil. 228 cited in A.
Tolentino, supra at p. 618.
15 Art. 8, Pres. Decree No. 603, Child and Youth
Welfare Code; Cervantes v. Fajardo, G.R. No. 79955,
January 27, 1989, 169 SCRA 575; Unson v. Navarro,
L-52242, November 17, 1980, 101 SCRA 182.
16 Family Code, Art. 211.

THIRD DIVISION

17 Family Code, Art. 212.

[G.R. No. 132223. June 19, 2001]

122
haveanestateconsistingofproceedsfromtheirfathersdeathpension
benefitswithaprobablevalueofP100,000.00.
BONIFACIA P. VANCIL, petitioner,
vs. HELEN G. BELMES, respondent.

DECISION
SANDOVAL-GUTIERREZ, J.:
Petition for review on certiorari of the Decision of the Court of
Appeals in CA-G.R. CV No. 45650, In the Matter of Guardianship of
Minors Valerie Vancil and Vincent Vancil Bonifacia P. Vancil,
Petitioner-Appellee, vs. Helen G. Belmes, Oppositor-Appellant,
promulgated on July 29, 1997, and its Resolution dated December
18, 1997 denying the motion for reconsideration of the said Decision.
The facts of the case as summarized by the Court of Appeals in
its Decision are:
Petitioner,BonifaciaVancil,isthemotherofReederC.Vancil,a
NavyservicemanoftheUnitedStatesofAmericawhodiedinthe
saidcountryonDecember22,1986.Duringhislifetime,Reederhad
two(2)childrennamedValerieandVincentbyhiscommonlaw
wife,HelenG.Belmes.
SometimeinMayof1987,BonifaciaVancilcommencedbeforethe
RegionalTrialCourtofCebuCityaguardianshipproceedingsover
thepersonsandpropertiesofminorsValerieandVincentdocketedas
SpecialProceedingsNo.1618CEB.Atthetime,Valeriewasonly6
yearsoldwhileVincentwasa2yearoldchild.Itisclaimedinthe
petitionthattheminorsareresidentsofCebuCity,Philippinesand

Findingsufficiencyinformandinsubstance,thecasewassetfor
hearingaftera3consecutiveweeklypublicationswiththeSunstar
Daily.
OnJuly15,1987,petitioner,BonifaciaVancilwasappointedlegal
andjudicialguardianoverthepersonsandestateofValerieVancil
andVincentVancilJr.
OnAugust13,1987,thenaturalmotheroftheminors,Helen
Belmes,submittedanoppositiontothesubjectguardianship
proceedingsasseveratingthatshehadalreadyfiledasimilarpetition
forguardianshipunderSpecialProceedingsNo.2819beforethe
RegionalTrialCourtofPagadianCity.
Thereafter,onJune27,1988,HelenBelmesfollowedheropposition
withamotionfortheRemovalofGuardianandAppointmentofa
NewOne,assertingthatsheisthenaturalmotherinactualcustodyof
andexercisingparentalauthorityoverthesubjectminorsatMaralag,
Dumingag,ZamboangadelSurwheretheyarepermanentlyresiding;
thatthepetitionwasfiledunderanimpropervenue;andthatatthe
timethepetitionwasfiledBonifaciaVancilwasaresidentof140
HurlimanCourt,CanonCity,Colorado,U.S.A.beinganaturalized
Americancitizen.
OnOctober12,1988,afterdueproceedings,thetrialcourtrejected
anddeniedBelmesmotiontoremoveand/ortodisqualifyBonifacia
asguardianofValerieandVincentJr.andinsteadorderedpetitioner
BonifaciaVanciltoentertheofficeandperformherdutiesassuch
guardianuponthepostingofabondofP50,000.00.Thesubsequent
attemptforareconsiderationwaslikewisedismissedinanOrder
datedNovember24,1988.[1]

123
On appeal, the Court of Appeals rendered its assailed Decision
reversing the RTC order of October 12, 1988 and dismissing Special
Proceedings No. 1618-CEB.
The Court of Appeals held:
StressshouldlikewisebemadethatourCivilCodeconsiders
parents,thefather,orintheabsence,themother,asnaturalguardian
ofherminorchildren.ThelawonparentalauthorityundertheCivil
CodeorP.D.603andnowtheNewFamilyCode,(Article225ofthe
FamilyCode)ascribetothesamelegalpronouncements.Section7of
Rule93oftheRevisedRulesofCourtconfirmsthedesignationof
theparentsasipsofactoguardianoftheirminorchildrenwithout
needofacourtappointmentandonlyforgoodreasonmayanother
personbenamed.Ironically,forthepetitioner,thereisnothingon
recordofanyreasonatallwhyHelenBelmes,thebiologicalmother,
shouldbedeprivedofherlegalrightsasnaturalguardianofher
minorchildren.TogiveawaysuchprivilegefromHelenwouldbean
abdicationandgraveviolationoftheverybasicfundamentaltenets
incivillawandtheconstitutiononfamilysolidarity. [2]
On March 10, 1998, Bonifacia Vancil filed with this Court the
present petition, raising the following legal points:
1.TheCourtofAppealsgravelyerredinrulingthatthe
preferentialrightofaparenttobeappointedguardianoverthe
personsandestateoftheminorsisabsolute,contrarytoexisting
jurisprudence.
2.TheCourtofAppealsgravelyerredinrulingthatOppositor
HelenG.Belmes,thebiologicalmother,shouldbeappointed
theguardianoftheminorsdespitetheundisputedproofthat
underhercustody,herdaughterminorValerieVancilwasraped
seventimesbyOppositorsliveinpartner.

3.Therespondent(sic)CourtofAppealsgravelyerredwhenit
disqualifiedpetitionerBonifaciaP.Vanciltobeappointedas
judicialguardianoverthepersonsandestateofsubjectminors
despitethefactthatshehasallthequalificationsandnoneof
thedisqualificationsasjudicialguardian,merelyonthebasisof
herU.S.citizenshipwhichisclearlynotastatutoryrequirement
tobecomeguardian.
At the outset, let it be stressed that in her Manifestation/Motion,
dated September 15, 1998, respondent Helen Belmes stated that her
daughter Valerie turned eighteen on September 2, 1998 as shown by
her Birth Certificate.[3] Respondent thus prayed that this case be
dismissed with respect to Valerie, she being no longer a proper
subject of guardianship proceedings. The said Manifestation/Motion
was noted by this Court in its Resolution dated November 11, 1998.
Considering that Valerie is already of major age, this petition
has become moot with respect to her. Thus, only the first and third
legal points raised by petitioner should be resolved.
The basic issue for our resolution is who between the mother
and grandmother of minor Vincent should be his guardian.
We agree with the ruling of the Court of Appeals that
respondent, being the natural mother of the minor, has the
preferential right over that of petitioner to be his guardian. This
ruling finds support in Article 211 of the Family Code which
provides:
Art.211.Thefatherandthemothershalljointlyexerciseparental
authorityoverthepersonsoftheircommonchildren.Incaseof
disagreement,thefathersdecisionshallprevail,unlessthereisa
judicialordertothecontrary.xxx.

124
Indeed, being the natural mother of minor Vincent, respondent
has the corresponding natural and legal right to his
custody. In Sagala-Eslao vs. Court of Appeals,[4] this Court held:
Ofconsiderableimportanceistherulelongacceptedbythecourts
thattherightofparentstothecustodyoftheirminorchildrenisone
ofthenaturalrightsincidenttoparenthood,arightsupportedbylaw
andsoundpublicpolicy.Therightisaninherentone,whichisnot
createdbythestateordecisionsofthecourts,butderivesfromthe
natureoftheparentalrelationship.
Petitioner contends that she is more qualified as guardian of
Vincent.
Petitioners claim to be the guardian of said minor can only be
realized by way of substitute parental authority pursuant to Article
214 of the Family Code, thus:
Art.214.Incaseofdeath,absenceorunsuitabilityoftheparents,
substituteparentalauthorityshallbeexercisedbythesurviving
grandparent.xxx.
In Santos, Sr. vs. Court of Appeals,[5] this Court ruled:
Thelawvestsonthefatherandmotherjointparentalauthorityover
thepersonsoftheircommonchildren.Incaseofabsenceordeathof
eitherparent,theparentpresentshallcontinueexercisingparental
authority.Onlyincaseoftheparentsdeath,absenceorunsuitability
maysubstituteparentalauthoritybeexercisedbythesurviving
grandparent.
Petitioner, as the surviving grandparent, can exercise substitute
parental authority only in case of death, absence or unsuitability of
respondent. Considering that respondent is very much alive and has
exercised continuously parental authority over Vincent, petitioner has

to prove, in asserting her right to be the minors guardian, respondents

unsuitability. Petitioner, however, has not proffered convincing
evidence showing that respondent is not suited to be the guardian of
Vincent. Petitioner merely insists that respondent is morally unfit as
guardian of Valerie considering that her (respondents) live-in partner
raped Valerie several times. But Valerie, being now of major age, is
no longer a subject of this guardianship proceeding.
Even assuming that respondent is unfit as guardian of minor
Vincent, still petitioner cannot qualify as a substitute guardian. It
bears stressing that she is an American citizen and a resident of
Colorado. Obviously, she will not be able to perform the
responsibilities and obligations required of a guardian. In fact, in her
petition, she admitted the difficulty of discharging the duties of a
guardian by an expatriate, like her. To be sure, she will merely
delegate those duties to someone else who may not also qualify as a
guardian.
Moreover, we observe that respondents allegation that petitioner
has not set foot in the Philippines since 1987 has not been
controverted by her. Besides, petitioners old age and her conviction
of libel by the Regional Trial Court, Branch 6, Cebu City in Criminal
Case No. CBU-16884[6] filed by one Danilo R. Deen, will give her a
second thought of staying here. Indeed, her coming back to this
country just to fulfill the duties of a guardian to Vincent for only two
years is not certain.
Significantly, this Court has held that courts should not appoint
persons as guardians who are not within the jurisdiction of our courts
for they will find it difficult to protect the wards. InGuerrero vs.
Teran,[7] this Court held:
DoaMariaMuozyGomezwas,asaboveindicated,removedupon
thetheorythatherappointmentwasvoidbecauseshedidnotreside
inthePhilippineIslands.Thereisnothinginthelawwhichrequires
thecourtstoappointresidentsonlyasadministratorsorguardians.

125
However,notwithstandingthefactthattherearenostatutory
requirementsuponthisquestion,thecourts,chargedwiththe
responsibilitiesofprotectingtheestatesofdeceasedpersons,wards
oftheestate,etc.,willfindmuchdifficultyincomplyingwiththis
dutybyappointingadministratorsandguardianswhoarenot
personallysubjecttotheirjurisdiction.Notwithstandingthatthereis
nostatutoryrequirement,thecourtsshouldnotconsenttothe
appointmentofpersonsasadministratorsandguardianswhoarenot
personallysubjecttothejurisdictionofourcourtshere.
WHEREFORE,
the
appealed
Decision
is
hereby AFFIRMED, with modification in the sense that Valerie,
who has attained the age of majority, will no longer be under the
guardianship of respondent Helen Belmes.
Costs against petitioner.
SO ORDERED.
Melo,
JJ., concur.

(Chairman),

Panganiban, and Gonzaga-Reyes,

Vitug, J., see concurring opinion.

[1]

Rollo, pp. 43-44.

[2]

Rollo, p. 47.

[3]

Rollo, p. 127.

[4]

266 SCRA 317 (1997).

[5]

242 SCRA 407 (1995).

[6]

Sentenced to suffer the penalty of imprisonment from 4 months

and 1 day of prision correcional as maximum and a fine of
P3,000.00 with subsidiary imprisonment in case of insolvency and to
indemnify offended party in the sum of P200,000.00 as moral
damages. See p. 118, Rollo.
[7]

13 Phils. 212 , 217 (1909).

126

SECOND DIVISION

NOEL B. BAGTAS,

G.R. No. 166682

Present:

127

CARPIO, J., Chairperson,

LEONARDO-DE CASTRO,*
BRION,

ON. RUTH C. SANTOS,Presiding Judge

Regional Trial Court, Branch 72, Antipolo City,
dANTONIO and ROSITA GALLARDO,

December 2002[4] and 21 April 2003 Orders of the Regional Trial

Court (RTC), Judicial Region 4, Branch 72, Antipolo City, in Special
Proceeding Case No. 02-1128.
The Facts

ABAD, JJ.

Antonio and Rosita S. Gallardo (Spouses Gallardo) are the parents of

Maricel S. Gallardo (Maricel). Two weeks after graduating from high
school in April 2000, Maricel ran away to live with her
boyfriend. Maricel became pregnant and gave birth to Maryl Joy S.
Gallardo (Maryl Joy). Maricels boyfriend left her.

Promulgated:

In February 2002, Maricel returned to her parents. On the same day,

Maricel ran away again and lived with Noel B. Bagtas (Bagtas) and
Lydia B. Sioson (Sioson) at Ma. Corazon, Unirock, Barangay Sta.
Cruz, Antipolo City. Maricel went to Negros Occidental and left
Maryl Joy in the custody of Bagtas and Sioson. In a letter[5]dated 5
February 2001, Maricel relinquished her rights over Maryl Joy to
Bagtas and his wife. She stated:

DEL CASTILLO, and

spondents.

November 27, 2009

x---------------------------------------------x
DECISION
CARPIO, J.:
The Case
This is a petition[1] for review on certiorari under Rule 45 of the
Rules of Court. The petition challenges the 11 June 2004
Decision[2] and 5 January 2005 Resolution[3] of the Court of Appeals
in CA-G.R. SP No. 77751. The Court of Appeals affirmed the 9

Ako po si Maricel S. Gallardo 18 taong gulang ay

kusang ipinagkaloob ang aking anak sa
pagkadalaga
sa
mag-asawang Noel
B.
Bagtas at Neneth A. Bagtas sa kadahilanan pong
itinakwil ako ng sarili kong mga magulang at hindi
ko po kayang buhayin at dahil po sa tinakbuhan ako
ng aking boyfriendkaya wala na pong ibang paraan
para ako makabangon o makapagsimula ng
panibagong buhay kaya para mabigyan ng
magandang buhay ang aking anak inisip ko po na
ito na ang pinaka madaling paraan para po sa
pagbabago ng aking buhay.
Kaya mula sa araw na ito ay wala na akong
karapatan sa aking anak. Sila ang tatayo bilang
magulang ng aking anak.

128
agreement under pain of contempt in case of
violation thereof.
In April 2002, the Spouses Gallardo tried to obtain the custody of
Maryl Joy from Bagtas and Sioson. Bagtas and Sioson
refused. Unable to settle the matter, the Spouses Gallardo filed with
the RTC a petition[6] for habeas corpus.
In its Order[7] dated 10 July 2002, the RTC issued a writ of
habeas[8] corpus directing the deputy sheriff to produce Maryl Joy
before it and to summon Bagtas and Sioson to explain why they were
withholding the custody of Maryl Joy.

In todays hearing, both parties appeared with their

respective counsels and have agreed on the
following:

On 29 September 2002, Bagtas and Sioson learned that Rosita S.

Gallardo brought Maryl Joy to Samar. In their motion[10] dated 30
September 2002, Bagtas and Sioson prayed that the Spouses
Gallardo be directed to produce Maryl Joy before the RTC, that they
be directed to explain why they violated the RTCs 13 September
2002 Order, and that they be cited in contempt. In their motion[11] to
dismiss dated 11 October 2002, Bagtas and Sioson prayed that the
Spouses Gallardos action be dismissed pursuant to Section 3, Rule
17, of the Rules of Court. Section 3 states that If, for no justifiable
cause, the plaintiff fails x x x to comply with x x x any order of the
court, the complaint may be dismissed upon motion of the defendant
or upon the courts own motion. Bagtas and Sioson claimed that the
Spouses Gallardo failed to comply with the RTCs 13 September
2002 Order.

1.
that the child should be placed in
custody of the petitioners on Friday,
Saturday and Sunday;

In its Order[12] dated 15 October 2002, the RTC cited the Spouses
Gallardo in contempt, fined them P500, and ordered them to produce
Maryl Joy before the trial court.

2. that the child should be returned to

the respondents by the petitioners on
Sunday at 8:00 oclock in the evening
subject to visitorial rights of the
petitioners anytime of the day; and

The RTCs Ruling

The Spouses Gallardo, Bagtas and Sioson entered into a compromise

agreement. In its Order[9] dated 13 September 2002, the RTC stated:

3.
that the child can be brought by the
respondents to Valenzuela but should be
returned to the petitioners on Friday
morning.
The above agreement shall take effect today and
parties are ordered to comply strictly with the said

In its Order[13] dated 9 December 2002, the RTC dismissed the action
for having become moot. The RTC stated:
In this petition, the prayer of the petitioners is to
produce the person of Meryl [sic] Joy S. Gallardo
before this court to be turned over to herein
petitioners who are the maternal [grandparents] of
said minor.
Since the person subject of the petition has already
produced [sic] to this court and has been turned over to the
petitioners, the issue on the petition for habeas corpus is now

129
moot and academic without prejudice to the filing of the proper
action to determine as to the rightful custody over the minor child.
In view thereof, x x x the Motion to Dismiss is hereby granted but
without prejudice on the petitioners to file proper action for custody
of the minor. (Emphasis supplied)
In their motion[14] for reconsideration dated 27 December 2002,
Bagtas and Sioson alleged that the ground for the dismissal of the
action was erroneous. The action should have been dismissed
pursuant to Section 3, Rule 17, of the Rules of Court. They prayed
that Maryl Joy be returned to them to preserve the status quo
ante.Bagtas and Sioson stated:
5. Thus, the Honorable Court very clearly
issued a conflicting Order because It has cited
the [Spouses Gallardo] in contempt of court for
violating the previous September 13, 2002 Order
that the child should be returned to the
respondents in the evening of September 29,
2002 (Sunday), and yet the Honorable Court has
dismissed the petition for being moot and
academic. This is in effect giving premium to the
act of the petitioners of not turning over the child
to respondents on September 29, 2002. Likewise,
this is tantamount to rewarding them for not
producing the child in court in violation of the
aforesaid September 13, 2002 Order;
6. Moreover, the Honorable Court has issued
an unreasonable Order by stating that the
dismissal of the instant case is without prejudice
to the filing of the proper action for custody of
the minor by the petitioners. Why would the

petitioners still file the proper action for custody

if they now have the custody of the minor?
P R AY E R
WHEREFORE, premises considered, it is
most respectfully prayed that the December 9, 2002
Order of the Honorable Court be partially
reconsidered so that the dismissal of the case will not
be based on the ground of being moot and academic
but based on failure to comply with the September
13, 2002 pursuant [sic] to Section 3, Rule 17 of the
1997 Rules of Civil Procedure and that petitioners be
consequently directed to return the person subject of
the petition to the respondents to preserve the status
quo ante.
In its Order[15] dated 21 April 2003, the RTC denied the motion for
reconsideration. The RTC held that the sole purpose of the petition
for habeas corpus was the production of Maryl Joy and that the
Spouses Gallardo exercised substitute parental authority over Maryl
Joy. The RTC stated that:
The allegations in the Petition show that
the sole purpose for the filing of the Petition is to
cause the production before the Court of the
person of minor Meryl [sic]Joy S. Gallardo, not a
determination of the legality or illegality of
respondents custody of the child, petitioners being
aware of the fact that the child was left by their
(petitioners) daughter to [sic] the custody of the
respondents, as stated in par. no. 10 of the Petition.
The instant Petition is therefore, essentially not a petition for Habeas
Corpus as contemplated in Rule 102, Revised Rules of Court which
is resorted to in all cases of illegal confinement by which any person

130
is deprived of his liberty (Cruz vs. CA, 322 SCRA 518), but is
resorted to also where the rightful custody of any person is withheld
from the person entitled thereto as contemplated in Rule 102,
Revised Rules of Court. In order that the special remedy of Habeas
Corpus maybe [sic] invoked, it is necessary that there should be an
actual and effective restraint or deprivation of liberty. A nominal or
moral restraint is not sufficient (Gonzales vs. Viola, et al., 61 Phil
824).
Since therefore, the purpose of the instant Petition has already
been served, as the child has been produced and delivered to the
petitioners, the instant Petition logically has become moot and
academic. Petitioners are, under the law (Art. 214, Family Code),
authorized to exercise substitute parental authority over the
child in case of death, absence or unsuitability of the parents, the
entitlement to the legal custody of the child being necessarily
included therein to make possible and/or enable the petitioners to
discharge their duties as substitute parents.
There is no inconsistency between the Order dated December 9,
2002 sought to be reconsidered, and the Order dated October 15,
2002, as the latter was issued pursuant to an incident, an
interlocutory matter, that is, the failure of the petitioners to comply
with the agreement reached between the parties in open court on
September 13, 2002. The said Order dated October 15, 2002 is not a
resolution of the case in the main, as it did not terminate the
case. The Order dated December 9, 2002, on the other hand,
terminated the case, and considering that the dismissal of the case
was unqualified, the same amounted to an adjudication on the merits
pursuant to Sec. 3, Rule 17 of the Revised Rules of Court Procedure,
therefore, the agreement earlier entered by and between the herein
parties is deemed terminated. (Emphasis supplied)
Bagtas filed with the Court of Appeals a petition [16] for
certiorari under Rule 65 of the Rules of Court. Bagtas alleged that (1)
the RTC erred when it ruled that the sole purpose of the 1 August

2002 petition was the production of Maryl Joy before the trial court,
(2) the RTC erred when it ruled that the petition was essentially not a
petition for Habeas Corpus as contemplated in Rule 102, (3) the RTC
erred when it ruled that there must be actual and effective deprivation
of liberty, (4) the RTC erred when it ruled that the action had become
moot, (5) the RTC erred when it ruled that the Spouses Gallardo had
substitute parental authority over Maryl Joy, and (6) the RTC erred
when it ruled that there was no inconsistency between the 15 October
and 9 December 2002 Orders.
The Court of Appeals Ruling
In its Decision dated 11 June 2004, the Court of Appeals dismissed
the petition and affirmed the 9 December 2002 and 23 April 2003
Orders of the RTC. The Court of Appeals held that:
In the second part of [Section 1, Rule 102, of the
Rules of Court], x x x habeas corpus may be resorted
to in cases where the rightful custody of any person
is
withheld
from
the
person
entitled
thereto. Accordingly, the writ of habeas corpus is the
proper remedy to enable herein private respondents
to regain the custody of their minor grand daughter
Maryl Joy who was admittedly left by her natural
mother in the care of petitioner and Lydia Sioson.
Significantly, in custody cases involving minors, the question of
illegal or involuntary restraint is not the underlying rationale for the
availability of the writ of habeas corpus as a remedy; rather, the writ
is prosecuted for the purpose of determining the right of custody of a
child. By dismissing the petition a quo, the trial court in effect upheld
private respondents right of custody over the minor involved as
against that of petitioner.
While it cannot be gainsaid that private respondents
obtained initial custody of the minor in violation of a

131
valid court order, we nonetheless sustain the
judgment a quo dismissing the petition and
validating such rightful custody over Maryl Joy. This
is because private respondents are the grandparents
of Maryl Joy, hence, lawfully authorized to exercise
substitute parental authority over her in the absence
of her parents. What is more, in awarding custody to
private respondents, the best welfare of the child was
taken into consideration inasmuch as, per report of
the Court Social Worker, the implementation of the
parties agreement would cause more psychological
damage and traumatic experience to Maryl Joy. To
our mind, therefore, the violation of a court order
pales in significance when considered alongside the
best interest of the minor whose welfare requires that
she be in the custody of her grandparents rather than
petitioners. x x x
Under the factual and legal milieux of the case, there
is no question that as grandparents of the minor,
Maryl Joy, private respondents have a far superior
right of custody over her than petitioner.[17]
The Issues
In his petition dated 1 February 2005, Bagtas raised as issues that:
THE COURT OF APPEALS ERRED AND
GRAVELY ABUSED ITS DISCRETION IN NOT
FINDING THAT TRIAL COURT COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OF JURISDICTION IN FINDING THAT
THE ALLEGATION IN THE PETITION FOR
HABEAS CORPUS SHOW THAT THE SOLE
PURPOSE FOR THE FILING THEREOF IS TO

CAUSE THE PRODUCTION BEFORE THE

COURT OF THE PERSON IN WHOSE FAVOR IT
WAS FILED.
THE COURT OF APPEALS GRAVELY ERRED AND ABUSED
ITS DISCRETION IN NOT FINDING THAT THE TRIAL COURT
GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK
OF JURISDICTION IN RULING THAT WITH THE DELIVERY
OF THE CHILD FOR WHOM THE PETITION WAS FILED, THE
PETITION FOR HABEAS CORPUS HAS BECOME MOOT AND
ACADEMIC.
The Courts Ruling
The Court of Appeals erred when it affirmed the RTCs 9 December
2002 and 21 April 2003 Orders. In its Orders, the RTC ruled that,
since the sole purpose of the petition for habeas corpus was the
production of Maryl Joy before the trial court, the action became
moot when Maryl Joy was produced. The Court disagrees.
Section 1, Rule 102, of the Rules of Court states that the writ of
habeas corpus shall extend to all cases where the rightful custody of
any person is withheld from the persons entitled thereto. In cases
involving minors, the purpose of a petition for habeas corpus is not
limited to the production of the child before the court. The main
purpose of the petition for habeas corpus is to determine who has the
rightful custody over the child. In Tijing v. Court of Appeals,[18] the
Court held that:
The writ of habeas corpus extends to all cases of
illegal confinement or detention by which any
person is deprived of his liberty, or by which the
rightful custody of any person is withheld from the
person entitled thereto. Thus, it is the proper legal
remedy to enable parents to regain the custody of a

132
minor child even if the latter be in the custody of a
third person of his own free will. It may even be said
that in custody cases involving minors, the question
of illegal and involuntary restraint of liberty is not
the underlying rationale for the availability of the
writ as a remedy. Rather, it is prosecuted for the
purpose of determining the right of custody over
a child. (Emphasis supplied)
The RTC erred when it hastily dismissed the action for having
become moot after Maryl Joy was produced before the trial court. It
should have conducted a trial to determine who had the rightful
custody over Maryl Joy. In dismissing the action, the RTC, in effect,
granted the petition for habeas corpus and awarded the custody of
Maryl Joy to the Spouses Gallardo without sufficient
basis. In Laxamana v. Laxamana,[19] the Court held that:
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 trialconsidering that
said psychiatric report, which was the courts
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. (Emphasis supplied)
Article 214 of the Civil Code states that in case of absence or
unsuitability of the parents, substitute parental authority shall be
exercised by the surviving grandparent.Article 216 states that in

default of parents or a judicially appointed guardian, the surviving

grandparent shall exercise substitute parental authority over the
child.Accordingly, in its 21 April 2003 Order, the RTC held that:
Petitioners are, under the law (Art. 214, Family
Code), authorized to exercise substitute parental
authority over the child in case of death, absence or
unsuitability of the parents, the entitlement to the
legal custody of the child being necessarily included
therein to make possible and/or enable the
petitioners to discharge their duties as substitute
parents.[20]
In its 11 June 2004 Decision, the Court of Appeals held that:
While it cannot be gainsaid that private respondents
obtained initial custody of the minor in violation of a
valid court order, we nonetheless sustain the
judgment a quo dismissing the petition and
validating such rightful custody over Maryl Joy. This
is because private respondents are the grandparents
of Maryl Joy, hence, lawfully authorized to exercise
substitute parental authority over her in the absence
of her parents.[21]
In determining who has the rightful custody over a child, the childs
welfare is the most important consideration. The court is not bound
by any legal right of a person over the child. In Sombong v. Court of
Appeals,[22] the Court held that:
The controversy does not involve the question of
personal freedom, because an infant is presumed to
be in the custody of someone until he attains
majority age. In passing on the writ in a child
custody case, the court deals with a matter of an
equitable nature. Not bound by any mere legal

133
right of parent or guardian, the court gives his or
her claim to the custody of the child due weight as
a claim founded on human nature and considered
generally equitable and just. Therefore, these cases
are decided, not on the legal right of the petitioner to
be relieved from unlawful imprisonment or
detention, as in the case of adults, but on the courts
view of the best interests of those whose welfare
requires that they be in custody of one person or
another. Hence, the court is not bound to deliver a
child into the custody of any claimant or of any
person, but should, in the consideration of the
facts, leave it in such custody as its welfare at the
time appears to require. In short, the childs
welfare is the supreme consideration.
Considering that the childs welfare is an all-important factor in
custody cases, the Child and Youth Welfare Code unequivocally
provides that in all questions regarding the care and custody,
among others, of the child, his welfare shall be the paramount
consideration. In the same vein, the Family Code authorizes the
courts to, if the welfare of the child so demands, deprive the
parents concerned of parental authority over the child or adopt
such measures as may be proper under the
circumstances. (Emphasis supplied)
In Sombong,[23] the Court laid down three requisites in petitions for
habeas corpus involving minors: (1) the petitioner has a right of
custody over the minor, (2) the respondent is withholding the rightful
custody over the minor, and (3) the best interest of the minor
demands that he or she be in the custody of the petitioner. In the
present case, these requisites are not clearly established because the
RTC hastily dismissed the action and awarded the custody of Maryl
Joy to the Spouses Gallardo without conducting any trial.

The proceedings before the RTC leave so much to be desired. While

a remand of the case would mean further delay, Maryl Joys best
interest demands that proper proceedings be conducted to determine
the fitness of the Spouses Gallardo to take care of her.
WHEREFORE, the Court REMANDS the case to the Regional
Trial Court, Judicial Region 4, Branch 72, Antipolo City, for the
purpose of receiving evidence to determine the fitness of the Spouses
Antonio and Rosita S. Gallardo to have custody of Maryl Joy
Gallardo.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice

Designated additional member per Special Order No. 776.

[1]

Rollo, pp. 3-15.

[2]

Id. at 19-27. Penned by Associate Justice Rebecca De GuiaSalvador, with Associate Justices Salvador J. Valdez, Jr. and Aurora
Santiago-Lagman, concurring.
[3]

Id. at 29.

[4]

Id. at 85-86. Penned by Judge Ruth Cruz-Santos.

[5]

Id. at 39.

[6]

Id. at 42-44.

[7]

Id. at 45.

134
[8]

Id. at 46.

G.R. No. 115640 March 15, 1995

[9]

Id. at 60.

REYNALDO ESPIRITU and GUILLERMA

LAYUG, petitioners,
vs.
COURT OF APPEALS and TERESITA
MASAUDING, respondents.

[10]

Id. at 63-65.

[11]

Id. at 67-71.

[12]

Id. at 74-76.

[13]

Id. at 85-86.

MELO, J.:

[14]

Id. at 87-90.

[15]

Id. at 98-99.

[16]

CA rollo, pp. 2-55.

[17]

Rollo, pp. 25-26.

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, welladjusted, and happy young adulthood.

[18]

406 Phil. 449, 458 (2001).

[19]

437 Phil. 104, 114-115 (2002).

[20]

Rollo, p. 99.

[21]

Id. at 25.

[22]

322 Phil. 737, 750-751 (1996).

[23]

Id. at 751.
THIRD DIVISION

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.

135
The relationship of the couple deteriorated until they decided
to separate sometime in 1990. Teresita blamed Reynaldo for
the break-up, stating he was always nagging her about money
matters. Reynaldo, on the other hand, contended that Teresita
was a spendthrift, buying expensive jewelry and antique
furniture instead of attending to household expenses.
Instead of giving their marriage a second chance as allegedly
pleaded by Reynaldo, Teresita left Reynaldo and the children
and went back to California. She claims, however, that she
spent a lot of money on long distance telephone calls to keep
in constant touch with her children.
Reynaldo brought his children home to the Philippines, but
because his assignment in Pittsburgh was not yet completed,
he was sent back by his company to Pittsburgh. He had to
leave his children with his sister, co-petitioner Guillerma Layug
and her family.
Teresita claims that she did not immediately follow her children
because Reynaldo filed a criminal case for bigamy against her
and she was afraid of being arrested. The judgment of
conviction in the bigamy case was actually rendered only on
September 29, 1994. (Per Judge Harriet O. Demetriou, Branch
70, RTC, Pasig, pp. 210-222,Rollo). Teresita, meanwhile,
decided to return to the Philippines and on December 8, 1992
and filed the petition for a writ of habeas corpus against herein
two petitioners to gain custody over the children, thus starting
the whole proceedings now reaching this Court.
On June 30, 1993, the trial court dismissed the petition
for habeas corpus. It suspended Teresita's parental authority
over Rosalind and Reginald and declared Reynaldo to have
sole parental authority over them but with rights of visitation to
be agreed upon by the parties and to be approved by the
Court.

On February 16, 1994, the Court of Appeals per Justice Isnani,

with Justices de Pano and Ibay-Somera concurring, reversed
the trial court's decision. It gave custody to Teresita and
visitation rights on weekends to Reynaldo.
Petitioners now come to this Court on a petition for review, in
the main contending that the Court of Appeals disregarded the
factual findings of the trial court; that the Court of Appeals
further engaged in speculations and conjectures, resulting in
its erroneous conclusion that custody of the children should be
given to respondent Teresita.
We believe that respondent court resolved the question of
custody over the children through an automatic and blind
application of the age proviso of Article 363 of the Civil Code
which reads:
Art. 363. In all questions on the care, custody,
education and property of the children, the latter's
welfare shall be paramount. No mother shall be
separated from her child under seven years of age,
unless the court finds compelling reasons for such
measure.
and of Article 213 of the Family Code which in turn
provides:
Art. 213. In case of separation of the parents parental
authority shall be exercised by the parent designated
by the Court. The Court shall take into account all
relevant considerations, especially the choice of the
child over seven years of age unless the parent chosen
is unfit.
The decision under review is based on the report of the Code
Commission which drafted Article 213 that a child below seven

136
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 SempioDiy, in a textbook on the Family Code, were also taken into
account. Justice Diy believes that a child below seven years
should still be awarded to her mother even if the latter is a
prostitute or is unfaithful to her husband. This is on the theory
that moral dereliction has no effect on a baby unable to
understand such action. (Handbook on the Family Code of the
Philippines, 1988 Ed., p. 297.)
The Court of Appeals was unduly swayed by an abstract
presumption of law rather than an appreciation of relevant
facts and the law which should apply to those facts. The task
of choosing the parent to whom custody shall be awarded is
not a ministerial function to be determined by a simple
determination of the age of a minor child. Whether a child is
under or over seven years of age, the paramount criterion
must always be the child's interests. Discretion is given to the
court to decide who can best assure the welfare of the child,
and award the custody on the basis of that consideration.
In Unson III vs. Navarro (101 SCRA 183 [1980]), we laid down
the rule that "in all controversies regarding the custody of
minors, the sole and foremost consideration is the physical,
education, social and moral welfare of the child concerned,
taking into account the respective resources and social and
moral situations of the contending parents", and in Medina
vs. Makabali (27 SCRA 502 [1969]), where custody of the
minor was given to a non-relative as against the mother, then
the country's leading civilist, Justice J.B.L. Reyes, explained its
basis in this manner:
. . . While our law recognizes the right of a parent to the
custody of her child, Courts must not lose sight of the
basic principle that "in all questions on the care,

custody, education and property of children, the latter's

welfare shall be paramount" (Civil Code of the
Philippines. Art. 363), and that for compelling reasons,
even a child under seven may be ordered separated
from the mother (do). This is as it should be, for in the
continual evolution of legal institutions, the patria
potestas has been transformed from thejus vitae ac
necis (right of life and death) of the Roman law, under
which the offspring was virtually a chattel of his parents
into a radically different institution, due to the influence
of Christian faith and doctrines. The obligational aspect
is now supreme. As pointed out by Puig Pena, now
"there is no power, but a task; no complex of rights (of
parents) but a sum of duties; no sovereignty, but a
sacred trust for the welfare of the minor."
As a result, the right of parents to the company and
custody of their children is but ancillary to the proper
discharge of parental duties to provide the children with
adequate support, education, moral, intellectual and
civic training and development (Civil Code, Art. 356).
(pp. 504-505.)
In ascertaining the welfare and best interests of the child,
courts are mandated by the Family Code to take into
account all relevant considerations. If a child is under seven
years of age, the law presumes that the mother is the best
custodian. The presumption is strong but it is not conclusive. It
can be overcome by "compelling reasons". If a child is over
seven, his choice is paramount but, again, the court is not
bound by that choice. In its discretion, the court may find the
chosen parent unfit and award custody to the other parent, or
even to a third party as it deems fit under the circumstances.

137
In the present case, both Rosalind and Reginald are now over
seven years of age. Rosalind celebrated her seventh birthday
on August 16, 1993 while Reginald reached the same age on
January 12, 1995. Both are studying in reputable schools and
appear to be fairly intelligent children, quite capable of
thoughtfully determining the parent with whom they would
want to live. Once the choice has been made, the burden
returns to the court to investigate if the parent thus chosen is
unfit to assume parental authority and custodial responsibility.
Herein lies the error of the Court of Appeals. Instead of
scrutinizing the records to discover the choice of the children
and rather than verifying whether that parent is fit or unfit,
respondent court simply followed statutory presumptions and
general propositions applicable to ordinary or common
situations. The seven-year age limit was mechanically treated
as an arbitrary cut off period and not a guide based on a
strong presumption.
A scrutiny of the pleadings in this case indicates that Teresita,
or at least, her counsel are more intent on emphasizing the
"torture and agony" of a mother separated from her children
and the humiliation she suffered as a result of her character
being made a key issue in court rather than the feelings and
future, the best interests and welfare of her children. While the
bonds between a mother and her small child are special in
nature, either parent, whether father or mother, is bound to
suffer agony and pain if deprived of custody. One cannot say
that his or her suffering is greater than that of the other parent.
It is not so much the suffering, pride, and other feelings of
either parent but the welfare of the child which is the
paramount consideration.

We are inclined to sustain the findings and conclusions of the

regional trial court because it gave greater attention to the
choice of Rosalind and considered in detail all the relevant
factors bearing on the issue of custody.
When she was a little over 5 years old, Rosalind was referred
to a child psychologist, Rita Flores Macabulos, to determine
the effects of uprooting her from the Assumption College
where she was studying. Four different tests were
administered. The results of the tests are quite revealing. The
responses of Rosalind about her mother were very negative
causing the psychologist to delve deeper into the child's
anxiety. Among the things revealed by Rosalind was an
incident where she saw her mother hugging and kissing a
"bad" man who lived in their house and worked for her father.
Rosalind refused to talk to her mother even on the telephone.
She tended to be emotionally emblazed because of constant
fears that she may have to leave school and her aunt's family
to go back to the United States to live with her mother. The 51/2 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. 199205, 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

138
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 reexamined and adjusted (Unson III v. Navarro, supra, at p.
189). To be sure, the welfare, the best interests, the benefit,
and the good of the child must be determined as of the time
that either parent is chosen to be the custodian. At the present
time, both children are over 7 years of age and are thus
perfectly capable of making a fairly intelligent choice.
According to respondent Teresita, she and her children had
tearful reunion in the trial court, with the children crying,
grabbing, and embracing her to prevent the father from taking
them away from her. We are more inclined to believe the
father's contention that the children ignored Teresita in court
because such an emotional display as described by Teresita in
her pleadings could not have been missed by the trial court.
Unlike the Justices of the Court of Appeals Fourth Division,
Judge Lucas P. Bersamin personally observed the children
and their mother in the courtroom. What the Judge found is
diametrically opposed to the contentions of respondent
Teresita. The Judge had this to say on the matter.
And, lastly, the Court cannot look at petitioner [Teresita]
in similar light, or with more understanding, especially
as her conduct and demeanor in the courtroom (during
most of the proceedings) or elsewhere (but in the

presence of the undersigned presiding judge)

demonstrated her ebulent temper that tended to
corroborate the alleged violence of her physical
punishment of the children (even if only for ordinary
disciplinary purposes) and emotional instability, typified
by her failure (or refusal?) to show deference and
respect to the Court and the other parties (pp. 12-13,
RTC Decision)
Respondent Teresita also questions the competence and
impartiality of the expert witnesses. Respondent court, in turn,
states that the trial court should have considered the fact that
Reynaldo and his sister, herein petitioner Guillerma Layug,
hired the two expert witnesses. Actually, this was taken into
account by the trial court which stated that the allegations of
bias and unfairness made by Teresita against the psychologist
and social worker were not substantiated.
The trial court stated that the professional integrity and
competence of the expert witnesses and the objectivity of the
interviews were unshaken and unimpeached. We might add
that their testimony remain uncontroverted. We also note that
the examinations made by the experts were conducted in late
1991, well over a year before the filing by Teresita of
the habeas corpus petition in December, 1992. Thus, the
examinations were at that time not intended to support
petitioners' position in litigation, because there was then not
even an impending possibility of one. That they were
subsequently utilized in the case a quo when it did materialize
does not change the tenor in which they were first obtained.
Furthermore, such examinations, when presented to the court
must be construed to have been presented not to sway the
court in favor of any of the parties, but to assist the court in the
determination of the issue before it. The persons who effected
such examinations were presented in the capacity of expert

139
witnesses testifying on matters within their respective
knowledge and expertise. On this matter, this Court had
occasion to rule in the case of Sali vs. Abukakar, et al. (17
SCRA 988 [1966]).
The fact that, in a particular litigation, an NBI expert
examines certain contested documents, at the request,
not of a public officer or agency of the Government, but
of a private litigant, does not necessarily nullify the
examination thus made. Its purpose, presumably, to
assist the court having jurisdiction over said litigation, in
the performance of its duty to settle correctly the issues
relative to said documents. Even a non-expert private
individual may examine the same, if there are facts
within his knowledge which may help, the court in the
determination of said issue. Such examination, which
may properly be undertaken by a non-expert private
individual, does not, certainly become null and void
when the examiner is an expert and/or an officer of the
NBI.
(pp. 991-992.)
In regard to testimony of expert witnesses it was held
in Salomon, et al. vs. Intermediate Appellate Court, et al. (185
SCRA 352 [1990]):
. . . Although courts are not ordinarily bound by expert
testimonies, they may place whatever weight they
choose upon such testimonies in accordance with the
facts of the case. The relative weight and sufficiency of
expert testimony is peculiarly within the province of the
trial court to decide, considering the ability and
character of the witness, his actions upon the witness
stand, the weight and process of the reasoning by
which he has supported his opinion, his possible bias in

favor of the side for whom he testifies, the fact that he

is a paid witness, the relative opportunities for study
and observation of the matters about which he testifies,
and any other matters which reserve to illuminate his
statements. The opinion of the expert may not be
arbitrarily rejected; it is to be considered by the court in
view of all the facts and circumstances in the case and
when common knowledge utterly fails, the expert
opinion may be given controlling effect (20 Am. Jur.,
1056-1058). The problem of the credibility of the expert
witness and the evaluation of his testimony is left to the
discretion of the trial court whose ruling thereupon is
not reviewable in the absence of an abuse of that
discretion.
(p. 359)
It was in the exercise of this discretion, coupled with the
opportunity to assess the witnesses' character and to observe
their respective demeanor that the trial court opted to rely on
their testimony, and we believe that the trial court was correct
in its action.
Under direct examination an February 4, 1993, Social Worker
Lopez stated that Rosalind and her aunt were about to board a
plane when they were off-loaded because there was no
required clearance. They were referred to her office, at which
time Reginald was also brought along and interviewed. One of
the regular duties of Social Worker Lopez in her job appears to
be the interview of minors who leave for abroad with their
parents or other persons. The interview was for purposes of
foreign travel by a 5-year old child and had nothing to do with
any pending litigation. On cross-examination, Social Worker
Lopez stated that her assessment of the minor's hatred for her
mother was based on the disclosures of the minor. It is
inconceivable, much less presumable that Ms. Lopez would

140
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,

141
Respondent's Memorandum; p. 238, Rollo; pp. 11, RTC
Decision). Less than a year later, she had already driven
across the continental United States to commence living with
another man, petitioner Reynaldo, in Pittsburgh. The two were
married on October 7, 1987. Of course, to dilute this
disadvantage on her part, this matter of her having contracted
a bigamous marriage later with Reynaldo, Teresita tried to
picture Reynaldo as a rapist, alleging further that she told
Reynaldo about her marriage to Lustado on the occasion
when she was raped by Reynaldo. Expectedly, Judge Harriet
Demetriou of the Pasig RTC lent no weight to such tale. And
even if this story were given credence, it adds to and not
subtracts from the conviction of this Court about Teresita's
values. Rape is an insidious crime against privacy. Confiding
to one's potential rapist about a prior marriage is not a very
convincing indication that the potential victim is averse to the
act. The implication created is that the act would be acceptable
if not for the prior marriage.
More likely is Reynaldo's story that he learned of the prior
marriage only much later. In fact, the rape incident itself is
unlikely against a woman who had driven three days and three
nights from California, who went straight to the house of
Reynaldo in Pittsburgh and upon arriving went to bed and,
who immediately thereafter started to live with him in a
relationship which is marital in nature if not in fact.
Judge Bersamin of the court a quo believed the testimony of
the various witnesses that while married to Reynaldo, Teresita
entered into an illicit relationship with Perdencio Gonzales right
there in the house of petitioner Reynaldo and respondent
Teresita. Perdencio had been assigned by the National Steel
Corporation to assist in the project in Pittsburgh and was
staying with Reynaldo, his co-employee, in the latter's house.
The record shows that the daughter Rosalind suffered
emotional disturbance caused by the traumatic effect of seeing

her mother hugging and kissing a boarder in their house. The

record also shows that it was Teresita who left the conjugal
home and the children, bound for California. When Perdencio
Gonzales was reassigned to the Philippines, Teresita followed
him and was seen in his company in a Cebu hotel, staying in
one room and taking breakfast together. More significant is
that letters and written messages from Teresita to Perdencio
were submitted in evidence (p.12, RTC Decision).
The argument that moral laxity or the habit of flirting from one
man to another does not fall under "compelling reasons" is
neither meritorious nor applicable in this case. Not only are the
children over seven years old and their clear choice is the
father, but the illicit or immoral activities of the mother had
already caused emotional disturbances, personality conflicts,
and exposure to conflicting moral values, at least in Rosalind.
This is not to mention her conviction for the crime of bigamy,
which from the records appears to have become final (pp. 210222,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

142
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.

MARIE ANTONETTE ABIGAIL

C. SALIENTES, ORLANDO B.
SALIENTES, and ROSARIO C.
SALIENTES,
Petitioners,
- versus -

G.R. No. 162734

Present:
QUISUMBING, J., Chairperso
n,
CARPIO,
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.

LORAN S.D. ABANILLA,

HONORABLE
JUDGE
PEDRO SABUNDAYO, JR.,
REGIONAL TRIAL COURT,
BRANCH
203,MUNTINLUPA CITY,
Respondents.

Promulgated:
August 29, 2006

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
QUISUMBING, J.:

SO ORDERED.
Feliciano, Romero, Vitug and Francisco, JJ., concur.

The instant petition assails the Decision [1] dated November

10, 2003 of the Court of Appeals in CA-G.R. SP 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[2] dated March 19, 2004 denying
reconsideration.
The facts of the case are as follows:

THIRD DIVISION

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

143
Marie Antonettes 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
oclock 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 minors
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

144
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.

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.

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

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 minors 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.

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 courts orders
dated January 23, 2003 andFebruary 24, 2003?

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.

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.

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 courts full inquiry into the issue of custody,
which was still pending before it.

Petitioners posit that even assuming that there were

compelling reasons, the proper remedy for private respondent was
simply an action for custody, but nothabeas corpus. Petitioners assert
that habeas corpus is unavailable against the mother who, under the

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

145
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.

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.

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
separatedde 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 respondents 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 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 Decision dated November 10, 2003 and the
Resolution dated March 19, 2004 of the Court of Appeals in CAG.R. SP No. 75680 are AFFIRMED. Costs against petitioners.
SO ORDERED.

In a petition for habeas corpus, the childs 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 respondents petition for custody. But it

LEONARDO A. QUISUMBING
Associate Justice

[1]

Rollo, pp. 11-15. Penned by Associate Justice Eubulo G. Verzola with

Associate
Justices Amelita G. Tolentino,
and Edgardo F. Sundiam concurring.
[2]
Id. at 8-9.
[3]
Id. at 73-80.
[4]
Id. at 11-12.
[5]
Id. at 15.
[6]
Id. at 34-35.
[7]
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.
[8]
SECTION 1. Subject of appeal. . . .
No appeal may be taken from:

146
xxxx
(c) an interlocutory order;
xxxx
In all of the above instances where the judgment or final order is
not appealable, the aggrieved party may file an appropriate special civil
action under Rule 65.
[9]
RULES OF COURT, Rule 102, Sec. 1. To what habeas corpus
extends. Except as otherwise expressly provided by law, the writ
of habeas corpus shall extend to all cases of illegal confinement or
detention by which any person is deprived of his liberty, or by which
the rightful custody of any person is withheld from the person entitled
thereto.
[10]
ART. 211. The father and the mother shall jointly exercise parental
authority over the persons of their common children. In cases of
disagreement, the fathers decision shall prevail, unless there is a
judicial order to the contrary.
[11]
Rollo, pp. 75-77.
[12]
Presidential Decree No. 603, as amended.
[13]
Id., Article 8.
[14]
SEC. 9. Notice of mandatory pre-trial. - Within fifteen days after the
filing of the answer or the expiration of the period to file answer, the
court shall issue an order: (1) fixing a date for the pre-trial conference;
(2) directing the parties to file and serve their respective pre-trial briefs
in such manner as shall ensure receipt thereof by the adverse party at
least three days before the date of pre-trial; and (3) requiring the
respondent to present the minor before the court. [Emphasis
supplied.]
[15]
Rules on Custody of Minors and Writ of Habeas Corpus in Relation to
Custody of Minors.

HERALD BLACK DACASIN,

Petitioner,

G.R. No. 168785

Present:
CARPIO, J., Chairperson,
BRION,
DEL CASTILLO,
ABAD, and
PEREZ, JJ.

- versus -

SHARON DEL MUNDO DACASIN, Promulgated:

Respondent.
February 5, 2010
x-----------------------------------------------------------------------------x

DECISION

CARPIO, J.:
The Case
For review[1]is a dismissal[2]of a suit to enforce a post-foreign
divorce child custody agreement for lack of
jurisdiction.
The Facts

SECOND DIVISION

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

147
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 (Agreement[4]) 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.

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 courts 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.
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.

Respondent sought the dismissal of the complaint for, among others,

lack of jurisdiction because of the Illinois courts retention of
jurisdiction to enforce the divorce decree.

The Issue

The Ruling of the Trial Court

The question is whether the trial court has jurisdiction to take

cognizance of petitioners suit and enforce the Agreement on the joint
custody of the parties child.

In its Order dated 1 March 2005, the trial court sustained respondents
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 courts 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 Code [6]prohibiting compromise
agreements on jurisdiction.[7]

The Ruling of the Court

The trial court has jurisdiction to entertain petitioners suit but not to
enforce the Agreement which is void. However, factual and equity
considerations militate against the dismissal of petitioners suit and
call for the remand of the case to settle the question of Stephanies
custody.
Regional Trial Courts Vested With Jurisdiction
to Enforce Contracts

148
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 petitioners 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 courts refusal to entertain petitioners suit
was grounded not on its lack of power to do so but on its thinking
that the Illinois courts 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]Petitioners
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 courts
so-called retained jurisdiction.
Petitioners 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
Agreements 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 law[15] (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
custody[17]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 Agreements 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]
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

149
separated from the mother, unless the court finds compelling
reasons to order otherwise. To limit this provisions 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 213s 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 laws 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 rules 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.
Further, the imposed custodial regime under the second paragraph of
Article 213 is limited in duration, lasting only until the childs seventh
year. From the eighth year until the childs 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. Respondents 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 decrees 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 spouse[26]- to support the Agreements
enforceability. The argument that foreigners in this jurisdiction are
not bound by foreign divorce decrees is hardly novel. Van Dorn v.
Romillo[27]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 divorcees 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

150
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 petitioners husband entitled to exercise control over
conjugal assets. As he is bound by the Decision of his own countrys
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-Somera[29]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
jurisdiction as it does in the jurisdiction of the aliens
nationality, irrespective of who obtained the divorce.

settle the question of Stephanies 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 childs 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 courts jurisdiction, submit evidence
on the custodial arrangement best serving Stephanies
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 childs 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 REMANDEDfor further proceedings consistent with this
ruling.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice

The Facts of the Case and Nature of Proceeding

Justify Remand
[1]

Instead of ordering the dismissal of petitioners suit, the logical end to

its lack of cause of action, we remand the case for the trial court to

Under Rule 45 of the 1997 Rules of Civil Procedure.

151
[2]

In the Orders dated 1 March 2005 and 23 June 2005 issued by the
Trial Court of Makati City, Branch 60.
[3]

Petitioner did not contest the proceedings.

[4]

Denominated Compromise Agreement on Child Custody and

Support.

Moreover, this Court cannot act upon [petitioners] prayer to enforce

the terms of the said Compromise Agreement the said agreement
being invalid and therefore, void, precisely because it seeks to
transfer jurisdiction over the issue of child custody from the Illinois
Court to this Court by agreement of the parties, when the previous
Court had already effectively asserted its authority to act upon all
matters relating to the said issue.

[5]

Under Article 15 of the Civil Code which provides: Laws 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.

In this regard, Art. 2035 of the Civil Code expressly

states that no compromise upon the questions of civil
status of persons, validity of marriage, or legal
separation, future support, jurisdiction of courts and
future legitimate shall be valid.

[6]

This provides: No compromise upon the following questions shall

be valid: x x x (5) The jurisdiction of courts[.]
[7]

[8]

As a corollary claim, petitioner submits that the stipulation in the

Agreement vesting exclusive jurisdiction to Philippine courts
over conflicts arising from the Agreement, even if void for
being contrary to Article 2035, paragraph 5 of the Civil
Code, is severable from and does not affect the validity
of the other terms of the Agreement on joint custody.

[9]

Section 19, paragraph 1, Batas Pambansa Blg. 129, as amended by

Republic Act No. 7691, provides: Jurisdiction in civil cases.Regional Trial Courts shall exercise exclusive original
jurisdiction: (1) In all civil actions in which the subject of the
litigation is incapable of pecuniary estimation; x x x x

The trial court held (Records, pp. 157-158):

[H]aving expressly recognized the validity of the

Illinois Courts judgment [petitioner] is bound by its
provisions including the provision that the Court
would maintain sole jurisdiction to implement and
enforce the provisions of the said judgment which
necessarily included guidelines for the childs
custody.
[Petitioner] being admittedly an American, following the nationality
rule which Philippine civil laws adhere to, the Judgment of the
Illinois Court would be binding upon him since the judicial
disposition refers to matters of status or legal capacity of a person.
xxxx

[10]

See Ortigas & Company, Limited Partnership v. Herrera, 205

Phil. 61 (1983).

[11]

Records, p. 17 (emphasis supplied).

[12]

Article 1306 of the Civil Code provides: The contracting parties

may establish such stipulations, clauses, terms and conditions as they

152
may deem convenient, provided they are not contrary to law, morals,
good customs, public order, or public policy.

[17]

Gamboa-Hirsch v. Court of Appeals (Res.), G.R. No. 174485, 11

July 2007, 527 SCRA 320 (reversing the Court of Appeals ruling
mandating joint custody and awarding sole custody to the mother).

[13]

Article 1409, paragraph 1 of the Civil Code provides: The

following contracts are inexistent and void from the beginning: (1)
Those whose cause, object or purpose is contrary to law,
morals, good customs, public order or public policy; x x x x
[14]

It can be inferred from the terms of the Agreement that the parties
intended to be bound by Philippine law on its intrinsic validity (this
is evident, for instance, from the stipulation selecting Philippine
courts as exclusive forum to settle any legal issue or dispute that may
arise from the provisions of [the] Agreement and its
interpretation x x x (Records, p. 19; emphasis supplied). At any
rate, Philippine law has the most substantial connection to the
contract, considering its object (custody of a Filipino-American
child), subject (Filipino-American child under seven years of age,
born of a Filipino mother, both of whom reside in the country) and
parties (Filipina mother and alien father).
[15]

Including those marriages whose vinculum has been severed

(see SEMPIO-DY, HANDBOOK ON THE FAMILY CODE OF THE
PHILIPPINES 67-68 [1988]).
[16]

The provision states: 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. (Emphasis supplied)

[18]

Perez v. Court of Appeals, 325 Phil. 1014 (1996). For children

over seven, custody decisions are guided by the standard of best
interest of the child.
[19]

Our discussion in Pablo-Gualberto v. Gualberto V, G.R. No.

154994, 28 June 2005, 461 SCRA 450, 471-472, on the statutory
genealogy and policy grounding of the second paragraph of
Article 213 is enlightening:

[A]rticle 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 latters
welfare shall be paramount. No
mother shall be separated from her
child under seven years of age,
unless the court finds compelling
reasons for such measure.
The general rule that children under
seven years of age shall not be separated
from their mother finds its raison detre in
the basic need of minor children for their
mothers loving care. 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

153
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 mothers
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)
[20]

Sole maternal custody is denied only for compelling reasons such

as neglect, abandonment, unemployment, immorality, habitual
drunkenness, drug addiction, maltreatment of the child, insanity or
affliction with a communicable disease (Id. at 476; internal citation
omitted).
[21]

Civil Code, Article 211, as amended.

[22]

See note 20.

[23]

[24]

capacity and autonomy of individuals ranging from the

intensely personal (e.g. who can marry [Article 5, Family
Code], where to marry [Article 5, Family Code], who can
celebrate the marriage [Article 5, Family Code], and how to
relate to ones spouse [Articles 68-72]) to proprietary (e.g.
Articles 74-125, Family Code, on property relations of
spouses and Articles 194-208, Family Code, on support) to
familial (e.g. Articles 209-233, Family Code, on parental
authority).
[26]

Petitioner hooks his argument on Gonzales v. Gonzales (58 Phil.

67 [1933]), Arca v. Javier (95 Phil. 579 [1954])
and Tenchavez v. Escao (122 Phil. 752 [1965]). These cases,
involving Filipino spouses, merely applied the nationality
rule (now embodied in Article 15 of the Civil Code) to reject
validating foreign divorce decrees obtained by Filipino
spouses to circumvent the no-divorce rule in this jurisdiction.
They are no authority to support petitioners submission that
as to aliens, foreign divorce decrees are void here.

[27]

[28]

Id. at 361-363.Van Dornspawned the second paragraph of Article

26 granting to Filipino spouses of aliens who obtain foreign
divorce decrees the right to remarry. (Republic v. Orbecido
III, G.R. No. 154380, 5 October 2005, 472 SCRA 114).

[29]

G.R. No. 80116, 30 June 1989, 174 SCRA 653.

[30]

Bagtas v. Santos, G.R. No. 166682, 27 November 2009.

See note 19.

Id.
[31]

[25]

223 Phil. 357 (1985).

This line of argument can be subsumed under the rubric of unfair

state intervention but this complaint can very well be leveled
against the entire field of family law where the state injects
itself on a host of areas impinging on the decision-making

Thus, in habeas corpus proceedings involving child custody,

judicial resolutions extend beyond the custodial right of
persons exercising parental authority over the child and
reach issues on custodial arrangements serving the childs
best interest (see Bagtas v. Santos, id., remanding a habeas

154
corpus petition to determine the fitness of the legal
custodians notwithstanding that the question of illegal
withholding of custody has been mooted by the transfer of
the childs physical custody to the habeas corpus petitioners).

set aside the Order[1] dated September 23, 1998 of the

Regional Trial Court of Manila, Branch 26, dismissing their
petition for correction of entries in the Civil Register. Likewise
sought to be reversed and set aside is the Order dated April
27, 1999 of the court a quo denying the petitioners motion for
reconsideration of the said order.
The factual antecedents are as follows:
Hubert Tan Co was born on March 23, 1974. His sister,
Arlene Tan Co, was born on May 19, 1975. In their respective
certificates of birth, it is stated that their parents Co Boon Peng
and Lourdes Vihong K. Tan are Chinese citizens.

EN BANC
[G.R. No. 138496. February 23, 2004]

HUBERT TAN CO and ARLENE TAN CO, petitioners,

vs. THE CIVIL REGISTER OF MANILA and any person
having or claiming an interest under the entry
whose
cancellation
or
correction
is
sought, respondent.
DECISION
CALLEJO, SR., J.:
Before the Court is the petition for review on certiorari filed
by Hubert Tan Co and Arlene Tan Co seeking to reverse and

Thereafter, Co Boon Peng filed an application for his

naturalization as a citizen of the Philippines with the Special
Committee on Naturalization under Letter of Instruction (LOI)
No. 270. His application was granted and he was conferred
Philippine citizenship under Presidential Decree (P.D.) No.
1055. The Chairman of the Committee issued on February 15,
1977 Certificate of Naturalization No. 020778 in his
favor. Thus, on February 15, 1977, Co Boon Peng took his
oath as a Philippine citizen. In the meantime, Hubert and
Arlene Co finished college and earned their respective
degrees in architecture and accountancy in Philippine schools.
On August 27, 1998, they filed with the Regional Trial
Court of Manila a petition under Rule 108 of the Rules of Court
for correction of entries in their certificates of birth. The case
was docketed as Sp. Proc. Case No. 98-90470. They
alleged, inter alia, in their petition that:
(3)TheywereborninthePhilippinesandthelegitimatechildrenof
COBOONPENG;

155
(4)CoBoonPeng,whoisformerlyacitizenofChina,wasconferred
PhilippinecitizenshipbynaturalizationunderPresidentialDecree
No.1055andhadtakenhisoathofallegiancetotheRepublicofthe
Philippineson15thFebruary,1977intheCityofManila;
(5)Atthetimeofbirthof[the]petitioners,theirfatherCOBOON
PENGwasstillaChinesecitizenthatiswhyentryintheirrespective
birthcertificatesastotheirfatherscitizenshipwasChinese;
(6)UpongrantingofPhilippinecitizenshipbynaturalizationtoCo
BoonPengin1977,[the]petitionerswhowereborninthe
PhilippinesandstillminorsatthattimebecameFilipinocitizens
throughthederivativemodeofnaturalization.OurNaturalization
Law,specificallySection15ofCommonwealthActNo.473,as
amendedbyCommonwealthActNo.535whichprovides:
Minorchildrenofpersonsnaturalizedunderthislawwhohavebeen
borninthePhilippinesshallbeconsideredcitizensthereof;
(7)Thenaturalizationofpetitionersfatherin1977wasanactor
eventaffectingandconcerningtheircivilstatusthatmustbe
recordedintheCivilRegister,Article407oftheNewCivilCodeof
thePhilippineswhichprovides:
Acts,eventsandjudicialdecreesconcerningthecivilstatusof
personsshallberecordedintheCivilRegister. [2]
The petitioners prayed that, after due proceedings, the
trial court render judgment correcting and changing the entries
in their respective birth certificates as to the citizenship of their
father Co Boon Peng, from Chinese to Filipino.[3]
On September 23, 1998, the court a quo issued an order
dismissing the petition outright on the ground that the petition
was insufficient, solely because the petitioners father Co Boon

Peng applied for naturalization under LOI No. 270 and was
conferred Philippine citizenship by naturalization under PD No.
1055 and not under Commonwealth Act (CA) No. 473. [4]
The petitioners sought the reconsideration of the assailed
order arguing that LOI No. 270 and CA No. 473 were designed
to grant citizenship to deserving aliens; hence, should be
construed together. They averred that the benefit of Section 15
of CA No. 473 should also be granted to the petitioners whose
father was granted naturalization under LOI No. 270. However,
the RTC issued an Order on April 27, 1999, denying their
motion for reconsideration for the following reasons: (a)
although Commonwealth Act No. 473 and Letter of Instructions
No. 270 are statutes relating to the same subject matter, they
do not provide the same beneficial effects with respect to the
minor children of the applicant. Section 15 of CA No. 473
expressly provides for the effect of the naturalization on the
wife and children of the applicant while LOI No. 270 does not
have any proviso to that effect; (b) LOI No. 270 clearly refers
to qualified individuals only. The rules and regulations
promulgated by the Committee established pursuant to LOI
No. 270 and the amendments issued by then President
Ferdinand E. Marcos (LOI Nos. 292 and 491) clearly speak of
qualified individuals only; no proviso therein referred to its
effect on the wife and children of the individual; (c) Section 15
of CA No. 473 should not be deemed and incorporated in and
applied to LOI No. 270; and, (d) the application of the socalled pari materia rule of construction made by the petitioners
is misplaced, as what should be applied in the instant case is
the rule on strict construction of legislative grants or
franchise.The court a quo stressed that legislative grants,
whether they be of property, rights or privileges, whether
granted to corporations or individuals, must be strictly
construed against the grantee and in favor of the grantor.

156
Aggrieved, the petitioners now come to this Court
assailing the court a quos Order dismissing their petition
outright and its Order denying their motion for the
reconsideration of the same.
The petitioners contend that the trial court erred in holding
that their petition was insufficient. They assert that contrary to
the ruling of the trial court, they are qualified to claim the
benefit of Section 15 of CA No. 473, which provides that minor
children of persons naturalized thereunder who were born in
the Philippines shall likewise be considered citizens
thereof. They contend that although LOI No. 270, under which
the petitioners father was naturalized does not contain a
provision similar to Section 15 of CA No. 473, the latter
provision should be deemed incorporated therein. They point
out that both laws have the same purpose and objective, i.e.,
to grant Philippine citizenship to qualified aliens permanently
residing in the Philippines. The petitioners invoke the rule that
statutes in pari materia are to be read together.[5] They posit
that CA No. 473 and LOI No. 270 should be harmonized and
reconciled since all statutes relating to the same subject, or
having the same general purpose, should be read in
connection with it, and should be construed together as they
constitute one law.[6]
The petitioners maintain that the letter and spirit of LOI
No. 270 was to grant the privilege of Philippine citizenship not
only to qualified aliens but also to their minor children who
were born in the country. They assert that this is apparent from
paragraph 4-A thereof, which extends the option to adopt
Filipino names not only to qualified applicants for naturalization
but also to their wives and minor children. They submit that
when then President Ferdinand E. Marcos enacted LOI No.
270, he must be presumed to have been acquainted with the
provisions of CA No. 473 and did not intend to abrogate and
discontinue the beneficial effects of Section 15 thereof;

otherwise, Pres. Marcos would have expressly repealed

Section 15 of CA No. 473 in relation to LOI No. 270. Thus,
according to the petitioners, the naturalization of their father
during their minority is an act or event affecting their civil status
that must be recorded in the Civil Register pursuant to Article
407 of the Civil Code.
In his Comment, the Solicitor General contends that the
court a quo did not err in issuing the assailed orders. Contrary
to the petitioners theory, LOI No. 270 and CA No. 473 are
separate
and
distinct
laws;
therefore,
are
not
in pari materia. He points out that although LOI No. 270 and
CA No. 473 both govern the naturalization of aliens, CA No.
473 deals with the requirements and procedure for
naturalization by judicial decree; LOI No. 270, on the other
hand, deals with the requirements and procedure for
naturalization by presidential decree.
The Solicitor General further asserts that the petitioners
contention that the naturalization of their father is an event
affecting and concerning their civil status envisaged in Article
407 of the Civil Code has no legal basis. The correction sought
and allowed under Rule 108 of the Rules of Court must be one
that reflects a fact existing before or at the time of birth. In the
petitioners case, the naturalization of their father in 1977 took
place long after they were born. Moreover, according to the
Solicitor General, under LOI No. 270 and its amendatory laws,
the naturalization of a father did not ipso facto render his
children also naturalized. The petitioners thus cannot invoke
Article 407 of the Civil Code and Rule 108 of the Rules of
Court to avoid strict compliance with the naturalization laws.
The petition is meritorious.
The rule on statutory construction provides that:

157
Statutesinparimateriashouldbereadandconstruedtogether
becauseenactmentsofthesamelegislatureonthesamesubjectare
supposedtoformpartofoneuniformsystem;laterstatutesare
supplementaryorcomplimentary(sic)totheearlierenactmentsand
inthepassageofitsactsthelegislatureissupposedtohaveinmind
theexistinglegislationsonthesubjectandtohaveenacteditsnew
actwithreferencethereto.[7]
Statutes in pari materia should be construed together to
attain the purpose of an expressed national policy, thus:
Onthepresumptionthatwheneverthelegislatureenactsaprovision
ithasinmindthepreviousstatutesrelatingtothesamesubject
matter,itisheldthatintheabsenceofanyexpressrepealor
amendmenttherein,thenewprovisionwasenactedinaccordwith
thelegislativepolicyembodiedinthosepriorstatutes,andtheyall
shouldbeconstruedtogether.Provisionsinanactwhichare
omittedinanotheractrelatingtothesamesubjectmatterwillbe
appliedinaproceedingundertheotheract,whennotinconsistent
withitspurpose.Priorstatutesrelatingtothesamesubjectmatterare
tobecomparedwiththenewprovisions;andifpossibleby
reasonableconstruction,botharetobeconstruedthateffectisgiven
toeveryprovisionofeach.Statutesinparimateria,althoughin
apparentconflict,aresofarasreasonablypossibleconstruedtobein
harmonywitheachother.[8]
LOI No. 270 and CA No. 473 are laws governing the
naturalization
of
qualified
aliens
residing
in
the
Philippines. While they provide for different procedures, CA
No. 473 governs naturalization by judicial decree while LOI
No. 270 governs naturalization by presidential decree; both
statutes have the same purpose and objective: to enable
aliens permanently residing in the Philippines, who, having
demonstrated and developed love for and loyalty to the
Philippines, as well as affinity to the culture, tradition and

ideals of the Filipino people, and contributed to the economic,

social and cultural development of our country, to be integrated
into the national fabric by being granted Filipino
citizenship.Under the LOI, the procedure for the acquisition of
citizenship by naturalization is more expeditious, less
cumbersome and less expensive. The sooner qualified aliens
are naturalized, the faster they are able to integrate
themselves into the national fabric, and are thus able to
contribute to the cultural, social and political well- being of the
country and its people.
Clearly, LOI No. 270 and CA No. 473 are, as the
petitioners correctly posit, statutes in pari materia. Absent any
express repeal of Section 15 of CA No. 473 in LOI No. 270,
the said provision should be read into the latter law as an
integral part thereof, not being inconsistent with its
purpose. Thus, Section 15 of CA No. 473,[9] which extends the
grant of Philippine citizenship to the minor children of those
naturalized thereunder, should be similarly applied to the minor
children of those naturalized under LOI No. 270, like the
petitioners in this case.
It is not enough that the petitioners adduce in evidence
the certificate of naturalization of their father, Co Boon Peng,
and of his oath of allegiance to the Republic of the Philippines,
to entitle them to Philippine citizenship. They are likewise
mandated to prove the following material allegations in their
petition: (a) that they are the legitimate children of Co Boon
Peng; (b) that they were born in the Philippines; and, (c) that
they were still minors when Co Boon Peng was naturalized as
a Filipino citizen;
The petitioners recourse to Rule 108 of the Rules of
Court, as amended, is appropriate. Under Article 412 of the
New Civil Code, no entry in a civil register shall be changed or
corrected without a judicial order. The law does not provide for

158
a specific procedure of law to be followed. But the Court
approved Rule 108 of the Rules of Court to provide for a
procedure to implement the law.[10] The entries envisaged in
Article 412 of the New Civil Code are those provided in Articles
407 and 408 of the New Civil Code which reads:

effect that the correction or change may be. [13] Such entries
include not only those clerical in nature but also substantial
errors. After all, the role of the Court under Rule 108 of the
Rules of Court is to ascertain the truths about the facts
recorded therein.[14]

Art.407.Acts,eventsandjudicialdecreesconcerningthecivilstatus
ofpersonsshallberecordedinthecivilregister.

The proceedings in Rule 108 of the Rules of Court are

summary if the entries in the civil register sought to be
corrected are clerical or innocuous in nature. However, where
such entries sought to be corrected or changed are
substantial: i.e., the status and nationality of the petitioners or
the citizenship of their parents,[15] the proceedings are
adversarial in nature as defined by this Court
in Republic v. Valencia, thus:

Art.408.Thefollowingshallbeenteredinthecivilregister:
(1)Births;(2)Marriages;(3)deaths;(4)legalseparations;(5)
annulmentsofmarriage;(6)judgmentsdeclaringmarriagesvoid
fromthebeginning;(7)legitimations;(8)adoptions;(9)
acknowledgmentsofnaturalchildren;(10)naturalization;(11)loss,
or(12)recoveryofcitizenship;(13)civilinterdiction;(14)judicial
determinationoffiliation;(15)voluntaryemancipationofaminor;
and(16)changesofname.
Specific matters covered by the said provision include not
only status but also nationality.[11] The acts, events or factual
errors envisaged in Article 407 of the New Civil Code include
even those that occur after the birth of the petitioner. However,
in such cases, the entries in the certificates of birth will not be
corrected or changed. The decision of the court granting the
petition shall be annotated in the certificates of birth and shall
form part of the civil register in the Office of the Local Civil
Registrar.[12]
To correct simply means to make or set aright; to remove
the faults or error from. To change means to replace
something with something else of the same kind or with
something that serves as a substitute. Article 412 of the New
Civil Code does not qualify as to the kind of entry to be
changed or corrected or distinguished on the basis of the

Onehavingopposingparties;contested,asdistinguishedfromanex
parteapplication,oneofwhichthepartyseekingreliefhasgiven
legalwarningtotheotherparty,andaffordedthelatteran
opportunitytocontestit.Excludesanadoptionproceeding.[16]
In such a proceeding, the parties to be impleaded as
respective defendants are (a) the local civil registrar; and, (b)
all persons who have claims any interest which would be
affected thereby.[17]
In this case, the petitioners alleged in their petition that
they are the legitimate children of Co Boon Peng, who was
naturalized as a Filipino citizen, but that their certificates of
birth still indicate that he is a Chinese national. In view of their
fathers naturalization, they pray that the entries in their
certificates of birth relating to the citizenship of their father be
changed from Chinese to Filipino.

159
The petitioners recourse to the procedure in Rule 108 of
the Rules of Court, as amended, being appropriate, it
behooved the trial court to do its duty under Section 4, Rule
108 of the Rules of Court, namely:
Sec.4.NoticeandPublication.Uponthefilingofthepetition,the
courtshall,byanorder,fixthetimeandplaceforthehearingofthe
same,andcausereasonablenoticethereoftobegiventotheperson
namedinthepetition.Thecourtshallalsocausetheordertobe
publishedonceaweekforthree(3)consecutiveweeksina
newspaperofgeneralcirculationintheprovince.
After hearing, the court shall issue an order either
dismissing the petition or issue an order granting the same. In
either case, a certified copy of the judgment shall be served
upon the civil registrar concerned who shall annotate the same
in the certificates of birth of the petitioners. The judgment of
the court shall form part of the records of the local civil register.
[18]

In this case, the trial court dismissed the petition outright

in violation of Rule 108 of the Rules of Court. Patently, then,
the trial court erred in so doing.
IN THE LIGHT OF THE FOREGOING, the petition is
GRANTED. The assailed Orders of the Regional Trial Court of
Manila, Branch 26, are SET ASIDE and REVERSED.The trial
court is DIRECTED to reinstate the petition in Special
Proceedings NO. 98-90470 in the court docket, and
ORDERED to continue with the proceedings in the said case
under Rule 108 of the Rules of Court, as amended.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing,
Ynares-Santiago,
Sandoval-Gutierrez,
Carpio, Austria-

Martinez, Corona,
JJ.,concur.

Carpio-

Morales,

Azcuna, and Tinga,

[1]

Penned by Judge Guillermo L. Loja, Sr.

[2]

Records, pp. 2-3.

[3]

Rollo, p. 5.

[4]

Id. at 46-47.

[5]

Pasno v. Ravina, 54 Phil. 378 (1930).

[6]

Rollo, p. 10.

[7]

Agpalo, R., Statutory Construction, p. 212 (1995).

[8]

C & C Commercial Corporation v. National Waterworks and

Sewerage Authority, 21 SCRA 984 (1967).

[9]

The provision reads in full:

Sec. 15. Effect of the naturalization on wife and
children. Any woman who is now or may hereafter be
married to a citizen of the Philippines, and who might
herself be lawfully naturalized shall be deemed a
citizen of the Philippines.
Minor children of persons naturalized under this
law shall be considered citizens thereof.

160
A foreign-born minor child, if dwelling in the
Philippines at the time of the naturalization of the
parent, shall automatically become a Philippine citizen,
and a foreign-born minor child, who is not in the
Philippines at the time the parent is naturalized, shall
be deemed a Philippine citizen only during his minority,
unless he begins to reside in the Philippines when still
minor, in which case, he will continue to be a Philippine
citizen even after becoming of age.

[18]

Section 7, Rule 108, Rules of court, as amended.

A child born outside the Philippines after

naturalization of his parent, shall be considered a
Philippine citizen, unless one year after reaching the
age of majority, he fails to register himself as a
Philippine citizen at the Philippine Consulate of the
country where he resides, and to take the necessary
oath of allegiance.
[10]

Lee v. Court of Appeals, 367 SCRA 110 (2001); Republic v.

Valencia, 141 SCRA 462 (1986).

[11]

Ibid.

[12]

Section 7, Rule 108, Rules of Court, as amended.

[13]

Lee v. Court of Appeals, supra.

[14]

Republic v. Valencia, supra.

[15]

Bagongbayan v. Republic, 16 SCRA 403 (1966) citing

Arnaldo v. Republic, G.R. No. 10226, February 14,
1958.

[16]

Supra, p. 469.

[17]

Id.

FIRST DIVISION
ROMMEL JACINTO
DANTES SILVERIO,
Petitioner,
-versus-

G.R. No. 174689

Present:
PUNO, C.J., Chairperson,
SANDOVAL-GUTIERREZ,
CORONA,

161
AZCUNA and
GARCIA, JJ.
REPUBLIC OF THE
PHILIPPINES, Respondent.

Promulgated:
October 22, 2007

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - x
DECISION
CORONA, J.:
When God created man, He made him in the likeness of
God; He created them male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala
and she heard voices coming from inside the bamboo. Oh
North Wind! North Wind! Please let us out!, the voices said.
She pecked the reed once, then twice. All of a sudden, the
bamboo cracked and slit open. Out came two human beings;
one was a male and the other was a female. Amihan named
the man Malakas (Strong) and the woman Maganda
(Beautiful). (The Legend of Malakas and Maganda)
When is a man a man and when is a woman a woman? In particular,
does the law recognize the changes made by a physician using
scalpel, drugs and counseling with regard to a persons sex? May a
person successfully petition for a change of name and sex appearing
in the birth certificate to reflect the result of a sex reassignment
surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio
filed a petition for the change of his first name and sex in his birth
certificate in the Regional Trial Court of Manila, Branch 8. The
petition, docketed as SP Case No. 02-105207, impleaded the civil
registrar of Manila as respondent.

Petitioner alleged in his petition that he was born in the City of

Manila to the spouses Melecio Petines Silverio and Anita Aquino
Dantes on April 4, 1962. His name was registered as Rommel Jacinto
Dantes Silverio in his certificate of live birth (birth certificate). His
sex was registered as male.
He further alleged that he is a male transsexual, that is, anatomically
male but feels, thinks and acts as a female and that he had always
identified himself with girls since childhood. [1] Feeling trapped in a
mans 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 surgery[2] 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
Peoples 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.

162
During trial, petitioner testified for himself. He also presented Dr.
Reysio-Cruz, Jr. and his American fianc, Richard P. Edel, as
witnesses.
On June 4, 2003, the trial court rendered a decision [4] 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. Petitioners
misfortune to be trapped in a mans 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 [fianc] 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 petitioners first name
from Rommel Jacinto to MELY and petitioners gender from
Male to FEMALE. [5]
On August 18, 2003, the Republic of the Philippines
(Republic), thru the OSG, filed a petition for certiorari in the Court
of Appeals.[6] It alleged that there is no law allowing the change of
entries in the birth certificate by reason of sex alteration.
On February 23, 2006, the Court of Appeals[7] rendered a
decision[8] in favor of the Republic. It ruled that the trial courts
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
Republics 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
PERSONS
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:

163
Petitioner filed the present petition not to
evade any law or judgment or any infraction thereof
or for any unlawful motive but solely for the
purpose of making his birth records compatible
with his present sex. (emphasis supplied)
Petitioner believes that after having acquired the physical
features of a female, he became entitled to the civil registry changes
sought. We disagree.
The State has an interest in the names borne by individuals
and entities for purposes of identification. [11] A change of name is a
privilege, not a right.[12]Petitions for change of name are controlled
by statutes.[13] In this connection, Article 376 of the Civil Code
provides:
ART. 376. No person can change his name or
surname without judicial authority.
This Civil Code provision was amended by RA 9048
(Clerical Error Law). In particular, Section 1 of RA 9048 provides:
SECTION 1. Authority to Correct Clerical or
Typographical Error and Change of First Name or
Nickname. No entry in a civil register shall be
changed or corrected without a judicial order, except
for clerical or typographical errors and change of
first name or nickname which can be corrected or
changed by the concerned city or municipal civil
registrar or consul general in accordance with the
provisions of this Act and its implementing rules and
regulations.
RA 9048 now governs the change of first name. [14] It vests
the power and authority to entertain petitions for change of first

name to the city or municipal civil registrar or consul

general concerned. Under the law, therefore, jurisdiction over
applications for change of first name is now primarily lodged with
the aforementioned administrative officers. The intent and effect of
the law is to exclude the change of first name from the coverage of
Rules 103 (Change of Name) and 108 (Cancellation or Correction of
Entries in the Civil Registry) of the Rules of Court, until and unless
an administrative petition for change of name is first filed and
subsequently denied.[15] It likewise lays down the corresponding
venue,[16] form[17] 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

164
name or nickname in the community;
or

(3)

The change will avoid confusion.

Petitioners 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 ones 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 petitioners 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 petitioners first name was not within that courts
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 petitioners 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 persons sex appearing in his birth
certificate is a legal issue and the court must look to the statutes. [21] In
this connection, Article 412 of the Civil Code provides:
ART. 412. No entry in the civil register shall be
changed or corrected without a judicial order.
Together with Article 376 of the Civil Code, this provision
was amended by RA 9048 in so far as clerical or
typographical errors are involved. The correction or change of such
matters can now be made through administrative proceedings and
without the need for a judicial order. In effect, RA 9048 removed
from the ambit of Rule 108 of the Rules of Court the correction of
such errors.[22] Rule 108 now applies only to substantial changes and
corrections in entries in the civil register.[23]
Section 2(c) of RA 9048 defines what a clerical or
typographical error is:
SECTION 2. Definition of Terms. As used in this
Act, the following terms shall mean:
xxx xxx xxx

165
(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]

166
The status of a person in law includes all his
personal qualities and relations, more or less
permanent in nature, not ordinarily terminable at
his own will, such as his being legitimate or
illegitimate, or his being married or not. The
comprehensive term status include such matters as
the beginning and end of legal personality, capacity
to have rights in general, family relations, and its
various aspects, such as birth, legitimation, adoption,
emancipation, marriage, divorce, and sometimes
even succession.[28] (emphasis supplied)

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)

A persons sex is an essential factor in marriage and family

relations. It is a part of a persons 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 petitioners 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

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 persons 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

167
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 petitioners first step towards his
eventual marriage to his male fianc. 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 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 postoperative 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
Code[40] 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 petitioners 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

168
[2]

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.

This consisted of penectomy [surgical removal of penis] bilateral

oschiectomy [or orchiectomy which is the surgical excision
of the testes] penile skin inversion vaginoplasty [plastic
surgery of the vagina] clitoral hood reconstruction and
augmentation mammoplasty [surgical enhancement of the
size and shape of the breasts]. Id.

[3]

On January 23, 2003, January 30, 2003 and February 6, 2003.

[4]

Penned by Judge Felixberto T. Olalia, Jr. Rollo, pp. 51-53.

[5]

Id., pp. 52-53 (citations omitted).

Costs against petitioner.

[6]

Docketed as CA-G.R. SP No. 78824.

[7]

Special Sixth Division.

[8]

Penned by Associate Justice Arcangelita M. Romilla-Lontok with

Associate Justices Marina L. Buzon and Aurora SantiagoLagman concurring. Rollo, pp. 25-33.

[9]

Resolution dated September 14, 2006, id., pp. 45-46.

where no law exists. It can only apply or interpret the written word of
its co-equal branch of government, Congress.

SO ORDERED.

RENATO C. CORONA
Associate Justice

[10]

[1]

Petitioner went for his elementary and high school, as well as his
Bachelor of Science in Statistics and Master of Arts, in the
University of the Philippines. He took up Population Studies
Program, Master of Arts in Sociology and Doctor of
Philosophy in Sociology at the University of Hawaii, in
Manoa, Hawaii, U.S.A. Rollo, p. 48.

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 the Purpose Articles 376 and 412 of the Civil Code of the
Philippines.

[11]

Wang v. Cebu City Civil Registrar, G.R. No. 159966, 30 March

2005, 454 SCRA 155.
[12]

Id.

169
[13]

K v. Health Division, Department of Human Resources, 277 Or.

371, 560 P.2d 1070 (1977).
[14]

[15]

Under Section 2 (6) of RA 9048, 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 names and last names.
Thus, the term first name will be used here to refer both to
first name and nickname.

(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 last paragraph of Section 7 of RA 9048 provides:

SECTION 7. Duties and Powers

General. xxx xxx xxx

of

the

Civil

Registrar

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.

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.
[16]

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

All petitions for the clerical or typographical errors

and/or change of first names or nicknames may be availed of
only once.
[17]

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

170
containing the entry or entries sought to be
corrected or changed;

[23]

Id.

[24]

(2)

(3)

At least two (2) public or private

documents showing the correct entry or
entries upon which the correction or change
shall be based; and
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.

Co v. Civil Register of Manila, G.R. No. 138496, 23 February

2004, 423 SCRA 420.
[25]

Id.

[26]

Id.

[27]

Beduya v. Republic of the Philippines, 120 Phil. 114 (1964).

[28]

Salonga, Jovito, PRIVATE INTERNATIONAL LAW, 1995

Edition, Rex Bookstore, p. 238.
[29]

This, of course, should be taken in conjunction with Articles 407

and 412 of the Civil Code which authorizes the recording of
acts, events and judicial decrees or the correction or change
of errors including those that occur after birth. Nonetheless,
in such cases, the entries in the certificates of birth are not be
corrected or changed. The decision of the court granting the
petition shall be annotated in the certificates of birth and
shall form part of the civil register in the Office of the Local
Civil Registrar. (Co v. Civil Register of Manila, supra note
24)

[30]

The error pertains to one where the birth attendant writes male or
female but the genitals of the child are that of the opposite
sex.

[31]

Moreover, petitioners female anatomy is all man-made. The body

that he inhabits is a male body in all aspects other than what
the physicians have supplied.

[32]

Blacks Law Dictionary, 8th edition (2004), p.1406.

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.
[18]

Republic v. Court of Appeals, G.R. No. 97906, 21 May 1992, 209

SCRA 189.
[19]

Supra note 11.

[20]

Id.

[21]

In re Ladrach, 32 Ohio Misc.2d 6, 513 N.E.2d 828 (1987).

[22]

Lee v. Court of Appeals, 419 Phil. 392 (2001).

171
[33]

Words and Phrases, volume 39, Permanent Edition, p. 106.

[34]

In re Application for Marriage License for Nash, 2003-Ohio-7221

(No. 2002-T-0149, slip op., Not Reported in N.E.2d, 2003
WL 23097095 (Ohio App. 11 Dist., December 31,
2003), citing Websters II New College Dictionary (1999).

[35]

Id.

[36]

Standard Oil Co. v. United States, 221 U.S. 1 (1911), 31 S.Ct.

502, 55 L.Ed. 619.

[37]

Article 1, Family Code.

[38]

Article 2(1), Id.

[39]

These are Articles 130 to 138 of the Labor Code which include
nightwork prohibition, facilities for women, prohibition on
discrimination and stipulation against marriage, among
others.

[40]

These include Article 333 on adultery, Articles 337 to 339 on

qualified seduction, simple seduction and acts of
lasciviousness with the consent of the offended party and
Articles 342 and 343 on forcible and consented abduction,
among others.

[41]

Section 3(jj)(4).

EN BANC

172
[G.R. No. 144599. June 9, 2004]
PEOPLE OF THE PHILIPPINES, appellee,
vs. DOMINADOR WERBA Y RICAFORT alias DOMING also
known as DOMINGO WERBA, appellant.
DECISION
CORONA, J.:
For automatic review is the decision[1] dated May 15,
2000 of the Regional Trial Court of Lucena City, Branch 55,
finding appellant Dominador Werba guilty beyond reasonable
doubt of the crime of robbery with homicide and imposing
upon him the supreme penalty of death.
Four years earlier, or on May 15, 1996, an Information
was filed against appellant charging him with robbery with
homicide allegedly committed as follows:

Thatonoraboutthe1stdayofApril,1996,atBarangayArawan,in
theMunicipalityofSanAntonio,ProvinceofQuezon,Philippines,
andwithinthejurisdictionofthisHonorableCourt,theabovenamed
accused,armedwithshortfirearm,withintenttogainandtorob,by
meansofforce,intimidationandphysicalviolenceandtaking
advantageofnighttimetobetteraccomplishhispurpose,didthen
andthere,willfully,unlawfullyandfeloniouslyenterthehouseof
spousesAlipioBrilandLuciaBrilandonceinside,take,steal,and
carryawaycashmoneyamountingtoP7,000.00andassorted
jewelriesofanundeterminedamount,toitsdamageandprejudicein
theaforesaidamount;andonthesameoccasionandbyreason
thereof,theabovenamedaccused,withintenttokillandbymeans
oftreacheryandintimidation,didthenandtherewillfully,
unlawfullyandfeloniouslyattack,assaultandshootwithsaidfirearm
saidLuciaBril,inflictinggunshotwoundonvitalpartsofherbody,
whichdirectlycausedherdeath.
Contrarytolaw.[2]
Upon arraignment, appellant pleaded not guilty to the
crime charged. Trial ensued.
The case[3] for the prosecution was succinctly summarized
by the Office of the Solicitor General:
OnApril1,1996,between11:00and12:00intheevening,
GerardoBrilwasgoingoutoftheirhouseatBarangayArawan,San
Antonio,QuezonProvince,tostorewaterinthedrum.Asheopened
thedoor,appellantDominadorWerba,alsoknownas
DomingWerba,simultaneouslyenteredthehouseandpokedagunat
GerardoBril.Then,appellantforcedhimtogototheroomofhis
parents,AlipioBrilandLuciaBril.Uponenteringtheroomofhis
parents,GerardoBrilwasorderedtoliedowninprostrateposition.
Hewasscaredandtrembling.(p.2,TSNdatedJanuary7,1998)

173
Aboutthattime,AlipioBrilwasalreadyasleep.Hewasawakened
becauseagunwaspokedathimbyDominadorWerba,
saying:Tatalsikangbaonguloninyokapaghindikayodadapa!Out
offear,heandhissonGerardoBrillied(sic)downinprostrate
position.Thereafter,appellantorderedLuciaBriltobringoutthe
thingsfromtheaparadorandthebaul,anddemandedmoneyandgun
fromthelatter.Aftersearchingthebaul,LuciaBrilhandedtoher
(sic)theamountofP7,000.00.Then,appellantproceededtotheroom
ofGerardoBrilwherehetookseveralpiecesofjewelry,namely,a
braceletvaluedatP10,000.00;aringvaluedatP3,500.00;anecklace
atP1,000.00andearringsatP500.00.(pp.15,1920,TSN
datedApril2,1997)
Unsatisfied,appellantdemandedforagun,andproceededtothe
roomofMichelleBril,daughterofGerardoBril,whichwasabout
one(1)meterandahalfacrosstheroomofAlipioand
LuciaBril.Appellantfurthersearchedtheroom,lookingforthegun
andtheproceedsofthesaleofcow(sic).Findingnothing,heordered
thatthelightsintheroomsofMichelleandGerardoBrilbeswitched
on.Angrily,appellantbroughtMichelleandLuciaBrilin(sic)the
lattersroom,orderingLuciaBriltoliedownunderthebed,kicking
herfor(sic)severaltimesintheprocess.(pp.2022,TSNdatedApril
2,1997)
Soonafter,appellantdraggedMichelletowardsthekitchen.While
thereat,heforcedMichelletoremoveherclothes.Onthepainof
threats,MichelleremovedherTshirtandherbra.Atthattime,
LuciaBrilcameandpleadedtoappellantnottodoanyharmtoher
granddaughterMichelle.IrkedbyLuciaBrilspleas,appellant
draggedbothMichelleandLuciabacktothelattersroom.He
orderedLuciaBriltoliedownunderthebedandkickedher
again.Afterwards,appellantdraggedMichelletothedoorforcing
hertoremoveherjoggingpants,thuspromptingthelattertocryfor
help.Atthatmoment,LuciaBrilcameinandtriedtowrestthegun
fromappellant.Duringthestruggle,appellantshotLuciaBrilwith

hisblackshortgun,hittingherinthechest.AsLuciaBrilfelldown,
appellantranaway,bringingwithhimhisgun.Therobberyand
homicideincidentattheBrilsresidencelastedforaboutone(1)anda
halfhour.(pp.914,TSNdatedNovember26,1996)
Dr.PedroP.Landicho,MunicipalHealthOfficerofSanAntonio,
Quezon,conductedthepostmortemexaminationof
LuciaBrilonApril3,1996:
FINDINGS:
Thebodybelong(sic)toapale,female,cadaver,browncomplexion
notinrigormortis,about61inchesinlength.
1.GunShotwound,1.0cmindiameter,5thICS,AnteriorLeftChest
(Thorax),7.0cmfromanteriormidline.
CAUSEOFDEATH:HemmorhagicShocksecondarytoGunShot
Wound,atLeftChest.
(Exh.A,PostMortemFindingsdatedAugust26,1997)[4]
Appellant denied the accusation against him and
interposed the defense of alibi. He alleged that on March 30,
1996, he and his wife left for Barangay Masaya, Bai, Laguna
to harvest rice. They returned home in the afternoon of April 2,
1996, the day after the crime was committed. He presented
three witnesses who testified that they harvested palaywith
appellant until April 2, 1996.
On May 15, 2000, the trial court rendered judgment
finding appellant guilty of the special complex crime of robbery
with homicide and sentenced him to death. The decretal
portion of the decision read:

174
WHEREFORE,inlightoftheforegoingpremisesand
considerations,thisCourtfindstheaccusedDominadorWerbaalso
knownasDomingWerbaGUILTYbeyondreasonabledoubtas
principalofthespecialcomplexcrimeofRobberyWithHomicide,
asthefelonyisdefinedandpenalizedbyArticle294,paragraph(1)
oftheRevisedPenalCodeand,furthermore,applyingtheprovisions
ofRepublicActNo.7659entitledAnActtoImposetheDeath
PenaltyonCertainHeinousCrimes,whichtookeffectonDecember
31,1993,herebysentencesthesameaccusedtosufferthemaximum
penaltyofdeathbylethalinjection,topaythefamilyofthedeceased
LuciaBrilthesumsofP21,500.00,asindemnityforthesumandthe
valueofthejewelriestakenawaybytheaccused,P126,000.00as
actualdamagesincurredbythefamilyofLuciaBrilonaccountof
herdeath,P50,000.00,asindemnityforthedeathof
LuciaBril,P50,000.00,asmoraldamages,andP50,000.00,as
exemplarydamages,pluscosts.
LettheentirerecordsofthiscasebetransmittedtotheHonorable
SupremeCourtforautomaticreviewinaccordancewiththe
provisionsofthelawandpertinentrulesoncriminalprocedure.
SOORDERED.[5]
Appellant assigns the following alleged errors of the trial
court:
ASSIGNMENTOFERRORS
I. THE HONORABLE PRESIDING JUDGE DID NOT
EVEN SEE THE DEMEANOR OF THE
PROSECUTIONS WITNESSES, AND YET GAVE
WEIGHT
AND
CREDENCE
TO
THEIR
DOUBTFUL TESTIMONIES.

II. THE COURT BELOW ERRED IN CONSIDERING

THE TESTIMONIES OF THE PROSECUTION
WITNESSES, ESPECIALLY THAT OF SPO2
REYNALDO GALA KASILAG.
III. THE COURT A QUO ERRED IN CONVICTING
THE ACCUSED-APPELLANT FOR THE SPECIAL
COMPLEX CRIME OF ROBBERY WITH
HOMICIDE.[6]
In the first two errors, appellant raises the issue of
credibility. He essentially assails the findings of the trial court
on his identification as the perpetrator of the offense
charged.He alleges that the findings of the trial court should
not be relied upon because the judge who rendered the
decision was not the one who tried and heard the testimonies
of the witnesses. However, while it is true that Judge Eleuterio
Guerrero, who penned the decision, merely took over the case
from Judge Jose V. Hernandez, who tried it, it did not
necessarily follow that Judge Guerrero could not render a just
and valid decision. The complete records of the case, including
the transcript of stenographic notes, were with Judge Guerrero
and it can be fairly assumed that, in rendering the decision, the
records were thoroughly read and evaluated by him. Indeed,
the efficacy of a decision is not necessarily impaired by the
fact that its writer only took over from a colleague who had
earlier presided at the trial.[7]
The well-settled rule in this jurisdiction is that the trial
courts findings on the credibility of witnesses are entitled to the
highest degree of respect and will not be disturbed on appeal
without any clear showing that it overlooked, misunderstood or
misapplied some facts or circumstances of weight or
substance which could affect the result of the case. [8]We
therefore find no reason to deviate from the conclusions of the
trial court on the identification of appellant as the person who
robbed the Bril family and shot Lucia Bril, considering that the

175
prosecution eyewitnesses testified on this fact in a categorical,
straightforward and consistent manner.
As Michelle Bril narrated:
Q: On April 1, 1996 at about 11:30 in the evening, do
you remember where were you?
A: I was inside our house in Brgy. Arawan, San
Antonio, Quezon sir.

INTERPRETER
The person pointed to by the witness when asked
give his name Dominador Werba.
Q: After that what happened if any?
A: Dominador Werba together with my father went to
the room of my grandmother and my grandfather
sir.

Q: Where particularly in your house were you?

xxx xxx xxx

A: I was inside my bedroom sir.

Q: After that what happened?

Q: While inside your bedroom, did you hear anything

unusual?

A: He poked his gun at my grandmother sir.

A: Yes sir.
Q: What was that unusual thing?
A: I heard the voice of Dominador Werba saying do
not
shout,
in tagalog, sasabog ang bao ng ulo ninyo and
everybody will be killed, sir.
Q: After hearing that statement what did you do if
any?
A: I

was
listening
(nakikiramdam)
Dominador Werba passed by my room sir.

until

Q: What did you do if any then?

A: I saw Dominador Werba poking his gun at my
father Gerardo Bril sir.

Q: Did the accused say anything to your lola?

A: I heard Werba told my grandmother to bring out
the proceeds from the sale of the cow and the
pieces of the jewelries and the gun, sir.
Q: What happened next?
A: The accused told my lola to bring out all the things
inside
the baul and
he
found
more
than P7,000.00 which he got sir.
Q: What happened next?
A: Werba ordered and dragged my grandmother to
the room of my parents and he ordered that the
lights be put on, sir.
Q: Was the lights actually put on?
A: Yes sir.

Q: That person who poked his gun to your father is he

in court now?

Q: What happened next?

A: Yes sir, he is that man wearing stripe T-shirt.

A: He told my grandmother to get all the things inside

the aparador of my parents and he was able to

176
find pieces of jewelries, ring sir, the ring of my
father, earrings and bracelet of my mother sir.
xxx xxx xxx
Q: After that what happened?
A: Dominador Werba went to my room together with
my grandmother and ordered that the light be put
on, sir.

A: Dominador Werba got angry and he brought me

and my grandmother to the room and he ordered
my lola to lie flat under the bed and he kicked her
sir, for several times.
Q: While he was doing this, did he make any
statement?
A: He said nobody should rise because everybody will
be killed sir.

Q: Was the light actually put on?

Q: What happened next?

A: Yes sir.

A: I was dragged going to the kitchen sir.

Q: What happened next?

Q: While in the kitchen what happened?

A: He turned his attention to my younger sister

May Bril and he hold my sister on her shoulder
he asked about the profit from the sale of the cow
and of the jewelries and the gun sir.

A: He was forcing me to remove my clothes sir.

Q: What was the reply of your sister May Bril?

A: My T-shirt and my bra sir.

A: My sister told him she does not know of any gun

and the profit from the sale of the cow is very
minimal only and she also said the jewelries are
faked (sic) only sir, and then he poked his gun to
me sir.

Q: Did you remove them?

Q: What happened when he poked his gun to you?

Q: What happened next?

A: He asked me about the profit from the sale of the

cow and about the gun and the jewelries sir.

A: On that particular moment my grandmother came

sir.

Q: What was your answer?

Q: What did your grandmother do or say?

A: I told him we dont have any gun and the money

from the sale of the cow have been spent for the
construction of the house sir, and that the
jewelries are only faked (sic).

A: She was pleading to Dominador Werba not to do

anything bad to me or hurt me sir.
Dominador Werba got angry and he dragged me
and my grandmother to the room of my
grandmother sir.

Q: What happened when you answered that?

Q: Which particular part of your clothes did you or

were you ordered to remove?

A: Yes sir because he told me if I will not remove my

T-shirt
and
my
bra, sasabog ang ulo naming lahat, sir.

177
Q: What happened next?
A: He told my grandmother to lie under the bed and
he kicked again my grandmother sir.
Q: And then what happened?
A: He dragged me going to the door of the three
rooms and he was forcing me to remove my
jogging pants.

A: Because our house was lighted, he stayed long in

our house when he robbed us and killed my
grandmother sir.
Q: What
particular
appearance
of
Dominador Werba did you remember that made
you identify him when he was inside the jail?
A: His face sir, his gold teeth, his arms and hair and
his body sir.

Q: What happened next?

Q: What did you notice with his hair?

A: I cried and asked help from my grandmother sir.

A: His hair has natural curl.

Q: Did your grandmother help you?

Q: What about his eyes?

A: My grandmother stood up and went to the place

where we were and tried to wrest the gun from
Dominador Werba sir.

A: Maliit na mabagsik sir.

Q: What happened next?

A: He is short and dark sir.[10]

A: Dominador Werba shot my grandmother sir.

Q: Was your grandmother Lucia Bril hit?
A: Yes sir, she was hit on her chest.
Q: What happened to your grandmother after she was
shot by the accused?
A: She fell down and Dominador Werba run away sir.
[9]

Categorically and positively identifying the appellant,

Michelle further testified:
Q: What
made
you
remember
Dominador Werba such that you were able to
identify him inside the municipal jail?

Q: What about his body?

The foregoing narration of facts and the positive
identification
of
appellant
were
corroborated
by
witness Alipio Bril:
Q: Now you said that this person Lucia Bril is your
wife, where is she now?
A: She is already dead, sir.
Q: Do you know why she died?
A: Yes, sir.
Q: Why did she die?
A: Because she was shot by Dominador Werba, sir.
Q: This Dominador Werba, is he in court?
A: Yes sir.

178
Q: Please point to him?
A: That one with handcuffs, sir.
INTERPRETER:
The person pointed to by the witness identified
himself as Dominador Werba your Honor.
ATTY. QUITAIN:
Before today how long have you known the accused
Dominador Werba whom you have just pointed to
this honorable court a moment ago?

A: That one at the middle sir. (The person pointed to

stood up and when asked of (sic) his name,
replied that he is Dominador Werba).
Q: In what part of your body did Doming poke a gun
at you?
A: Here, sir. (Witness pointing to his forehead).
Q: And then, what happened when he poked his gun
at you?
A: I was forced to go to the room of my parents, sir.

A: More or less ten (10) years, sir.

Q: And after inside (sic) the room of your parents,

what happened next?

Q: Why
do
you
know
the
accused
Dominador Werba for about ten (10) years?

A: I was told to lie down, face down, sir.

A: Because I bought from him a cow for three (3)

times already, sir.[11]
Likewise, witness Gerardo Bril testified:
Q: Where was your daughter Michelle Bril on April 1,
1996 between 11 and 12 oclock in the evening?
A: Inside our house, sir.
Q: Now, at that time, more or less, what were you
doing, if any?
A: I was then going out of the house to store water in
the drum and I opened the door and,
simultaneously, Doming entered the house and
poked a gun at me, sir.
Q: Who is this Doming? If this Doming is inside the
courtroom, please point him out?

Q: Did you actually lie down face downward?

A: Yes sir.[12]
The prosecution witnesses who identified appellant as the
perpetrator of the crime were members of the victims family
husband Alipio,
son
Gerardo
and
granddaughter
Michelle. Mere relationship of a witness to the victim does not
impair his credibility.[13] On the contrary, a witness relationship
to the victim of a crime makes his testimony even more
credible as it would be unnatural for a relative interested in
vindicating a crime done to their family to accuse somebody
other than the real culprit.[14]
Appellant further avers that the testimonies of the
prosecution witnesses were rehearsed as they were allegedly
coached by SPO2 Reynaldo Kasilag to point at appellant as
the malefactor. However, he failed to substantiate his
accusation of alleged influence exerted by the police on the
prosecution witnesses.

179
In stark contrast to the overwhelming evidence against
him, all appellant could offer were alibi and denial. For the
defense of alibi to prosper, the accused must prove not only
that he was at some other place at the time the crime was
committed but that it was likewise impossible for him to be at
the locus criminis or its immediate vicinity at the time of the
alleged crime.[15] Where there is even the least chance for the
accused to be present at the crime scene, the defense of alibi
will not hold water.[16] Appellant himself admitted that
Barangay Masaya, Bai, Laguna where he was allegedly
harvesting rice was only 45 minutes by jeepney from
Barangay Arawan, San Antonio, Quezon where the crime was
committed.
His
witnesses
testified
that
they
harvested palay with him during the day from March 30 to April
2, 1996. But they could not account for his whereabouts at
past 11:00 p.m. on April 1, 1996 when the crime was
committed. Appellant failed to prove that it was physically
impossible for him to be at the scene of the crime at the
approximate time of its commission. His alibi therefore
deserves no consideration at all.
Furthermore, appellants denial fails in the light of the
positive identification and declarations of the prosecution
witnesses. The positive identification of an accused by
eyewitnesses prevails over the defenses of alibi and denial.
[17]
Courts generally view the defenses of denial and alibi with
disfavor on account of the facility with which an accused can
concoct them to suit his defense.[18] Being evidence that is
negative in nature and self-serving, they cannot attain more
credibility than the testimonies of prosecution witnesses who
testify on clear and positive evidence.[19]
We agree with the trial court that appellant committed the
special complex crime of robbery with homicide under
paragraph 1, Article 294 of the Revised Penal Code:

Art.294.Robberywithviolenceagainstorintimidationofpersons
PenaltiesAnypersonguiltyofrobberywiththeuseofviolence
againstorintimidationofanypersonshallsuffer:
1.Thepenaltyofreclusionperpetuatodeath,whenbyreason
oronoccasionoftherobbery,thecrimeofhomicideshall
havebeencommitted;orwhentherobberyshallhavebeen
accompaniedbyrapeorintentionalmutilationorarson.
xxxxxxxxx
The elements of robbery with homicide are: (a) the taking
of personal property with the use of violence or intimidation
against a person; (b) the property thus taken belongs to
another; (c) the taking is characterized by intent to gain
or animus lucrandi and (d) on the occasion of the robbery,
homicide (used in its generic sense) is committed.[20]
Essential in robbery with homicide is that there is a nexus,
an intimate connection between the robbery and the killing,
whether the latter be prior or subsequent to the former or
whether both crimes are committed at the same time.[21]
In the case at bar, the deceased, Lucia Bril, was killed by
appellant on the occasion of the robbery. While appellant was
demanding more money and a gun from the Brilfamily, he was
irked by the protestations of Lucia and her granddaughter
Michelle who were crying that they had nothing more to give
him. He then dragged Michelle to the kitchen and later, to her
grandparents bedroom, and ordered her to undress while
threatening to shoot her if she refused. Michelle begged her
grandmother to help her and Lucia pleaded with appellant not
to harm her granddaughter. Lucia then tried to wrestle the gun
away from appellant but the latter overpowered her and shot
her in the chest. Then he fled.

180
A conviction for robbery with homicide is proper even if the
homicide is committed before, during or after the robbery. The
homicide may be committed by the malefactor at the spur of
the moment or by mere accident. Even if two or more persons
are killed or a woman is raped or physical injuries are inflicted
on another on the occasion or by reason of the robbery, there
is only one special complex crime of robbery with homicide.
What is critical is the result obtained without reference or
distinction as to circumstances, cause, modes or persons
intervening in the commission of the crime.[22]
We, however, disagree with the court a quo that the
aggravating circumstance of dwelling attended the commission
of the crime. This circumstance was not specifically alleged in
the information. By virtue of its amendment, effective
December 1, 2000, Rule 110, Section 8 of the Revised Rules
on Criminal Procedure now provides that aggravating
circumstances must be alleged in the information, otherwise,
they cannot be considered against the accused even if they
are proven during the trial.[23] Being favorable to the appellant,
the rule, as amended, should be applied retroactively.[24]
We cannot likewise appreciate the aggravating
circumstance of nighttime because, while the information
alleged that the killing was committed at past 11:00 p.m., there
was no showing that nocturnity was deliberately sought to
facilitate the commission of the crime. It is settled that, by and
of itself, nighttime is not an aggravating circumstance. It
becomes so only when it is specially sought by the offender, or
taken advantage of by him, to facilitate the commission of the
crime or to insure his immunity from capture.[25]Here, appellant
was known by the Bril family for almost ten years. Thrice, he
bought a cow from Alipio Bril. On the night he robbed
the Bril family and killed Lucia Bril, appellant did not make any
attempt to hide his identity from his victims. He did not wear a
hood to cover his face and even ordered the lights to be turned
on as he instructed the Bril family to bring out their

valuables. It appears that the reason he committed the crime

on the eve of April 1, 1996 was because of his ill-founded
belief that he could get away with it, since he had witnesses to
prove that he was busy harvesting palay during the day.
The qualifying circumstance of treachery cannot likewise
be logically appreciated because appellant did not prepare to
kill the deceased in such a manner as to insure the
commission of the crime or to make it impossible or difficult for
her to defend herself or to retaliate.[26] Clearly, appellant had no
plan to kill Lucia Bril. He shot her on the occasion of the
robbery only because she tried to wrestle the gun away from
him as he tried to sexually abuse Michelle. For treachery to be
considered, two elements must concur: (1) the employment of
means of execution that gives the person attacked no
opportunity to defend himself or retaliate and (2) the means of
execution is deliberately or consciously adopted.[27] Both
elements are absent in the case at bar.
On the issue of damages, the Office of the Solicitor
General recommends the reduction of the award of actual
damages from P126,000 to P18,000 because only the
expense for the funeral services in the amount of P18,000 was
duly receipted and no other evidence was presented to
support the other alleged expenses.
In People vs. Abrazaldo,[28] we laid down the doctrine that
where the amount of actual damages for funeral expenses
cannot be determined because of the absence of receipts to
prove them, temperate damages may be awarded in the
amount of P25,000.[29] This doctrine specifically refers to a
situation where no evidence at all of funeral expenses was
presented in the trial court. However, in instances where actual
expenses amounting to less than P25,000 are proved during
the trial, as in the case at bar, we apply the ruling in the more
recent case of People vs. Villanueva[30] which modified
the Abrazaldo doctrine. In Villanueva, we held that when actual
damages proven by receipts during the trial amount to less

181
than P25,000, the award of temperate damages for P25,000 is
justified in lieu of the actual damages of a lesser amount. To
rule otherwise would be anomalous and unfair because the
victims heirs who tried but succeeded in proving actual
damages of an amount less than P25,000 would be in a worse
situation than those who might have presented no receipts at
all but would now be entitled to P25,000 temperate damages.

Under Article 294 of the Revised Penal Code, as

amended by Section 9 of RA 7659, the prescribed penalty for
robbery with homicide is composed of two indivisible
penalties, reclusion perpetua to death. Considering that, in the
present case, there was no aggravating circumstance that
attended the commission of the crime, we impose upon
appellant the lower penalty of reclusion perpetua.

[31]

In the case at bar, private complainants were only able to

prove the funeral expense of P18,000 as evidenced by the
receipt issued by the Amparo-Coloma Funeral Homes
although they incurred more expenses for the wake and
funeral of Lucia Bril than they were actually able to prove. We
therefore apply the Villanueva doctrine and award private
complainants temperate damages in the amount of P25,000,
in lieu of the actual damages of P126,000 which was
erroneously awarded by the trial court.
The trial court likewise erred in awarding exemplary
damages to the heirs of Lucia Bril in the amount of
P50,000. We reduce the same to P25,000 in line with existing
jurisprudence.[32]
The court a quo, however, correctly awarded moral
damages in the amount of P50,000 on account of the grief and
suffering of the victims heirs.[33] The award of moral damages
in the amount of P75,000, as prayed for by the Office of the
Solicitor General, refers to cases of rape where the victim
dies. The rule is not applicable to cases of robbery with
homicide.

WHEREFORE, the assailed decision is hereby

AFFIRMED with the MODIFICATION that the penalty is
reduced to reclusion perpetua. Temperate damages in the
amount ofP25,000 shall be awarded private complainants in
lieu of the P126,000 awarded by the trial court. In line with
existing jurisprudence, appellant is likewise ordered to pay
private complainants P50,000 civil indemnity, P50,000 moral
damages, P25,000 exemplary damages and P21,500 as
indemnity for the sum and value of the cash and jewelries
stolen.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing,
Ynares-Santiago,
Sandoval-Gutierrez,
Carpio, AustriaMartinez, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga,
JJ., concur.

[1]

Penned by Judge Eleuterio F. Guerrero.

[2]

Record, pp. 2-3.

[3]

Based on the testimony of the seven prosecution witnesses:

Michelle Bril, Alipio Bril, SPO2 Reynaldo Kasilag, Dr.
Pedro Landicho, Gerardo Bril, Eugenio Bril and Jose
de Luna.

182
[4]

[5]

Brief for the Plaintiff-Appellee (With Recommendation for

Reduction of Actual Damages, Increase of Civil
Indemnity and Award of Temperate Damages), Rollo,
pp. 80-90.
Decision,
RTC,
4th Judicial
55, Lucena City, Rollo, p. 40.

Region,

[6]

Appellants Brief, Rollo, pp. 60-61.

[7]

People vs. Yatco, 379 SCRA 432 [2002].

[8]

Ibid.;

[9]

TSN dated November 26, 1996, pp. 5-12.

Branch

see also People vs. Boquirin, 383 SCRA 164

[2002], People vs. Taboga, 376 SCRA 500 [2002].

[2001]; People vs. Olita,

362
SCRA
521
[2001]; People vs. del Rosario, 359 SCRA 166 [2001].
[21]

People vs. Cabillo, 362 SCRA 521 [2001].

[22]

People vs. Daniela et. al, 401 SCRA 519 [2003].

[23]

Revised Rules on Criminal Procedure, Rule 110, Sec. 8,

specifically provides:

Sec. 8. Designation of the offense. The complaint or

information shall state the designation of the offense
given by the statute, aver the acts or omissions
constituting the offense, and specify its qualifying and
aggravating circumstances. If there is no designation of
the offense, reference shall be made to the section or
subsection of the statute punishing it.

[10]

Ibid., p. 15.

[11]

TSN dated April 2, 1997, pp. 8-10.

[24]

People vs. Ibanez, G.R. No. 133923-34, July 30, 2003.

[12]

TSN dated January 7, 1998, p. 2.

[25]

People vs. Silvano, 350 SCRA 385 [2001].

[13]

People vs. Godoy, 382 SCRA 680 [2002] cited in People vs.
Romero, G.R. No. 145166, October 8, 2003.

[26]

People vs. Cabareno, 349 SCRA 297 [2001].

[27]

People vs. Amazan, 349 SCRA 218 [2001].

[28]

397 SCRA 137 [2003].

[29]

Ibid.

[30]

G.R. No. 139177, August 11, 2003.

[14]

Ibid.

[15]

see People vs. Pelopero et al., G.R. No. 126119, October

15,
2003;
People vs. Taboga, supra at
note
8; People vs. Blanco, 324 SCRA 280 [2002].

[16]

People vs. Lopez, G.R. No. 149808, November 27, 2003.

[31]

Ibid.

[17]

see People vs. Juan, 322 SCRA 598 [2000].

[32]

People vs. Almoguerra, supra at note 24.

[18]

People vs. Alib, 322 SCRA 93 [2000].

[33]

People vs. Otayde, G.R. No. 140227, November 28, 2003.

[19]

Ibid.

[20]

see

People vs. Arondain,

[2001]; People vs. Amba,
[2001]; People vs. Boagat,

366
365
364

SCRA
SCRA
SCRA

325
518
425

183
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.

EN BANC
G.R. No. 182894

April 22, 2014

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

184
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
attorneys 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. Adrianos 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 attorneys
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.
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.

185
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 latters
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 Courts 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]

186
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
ones common law partner. In Tomas Eugenio, Sr. v. Velez,7 a
petition for habeas corpus was 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

187
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. Adrianos 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. Valinos own testimony that it was Atty. Adrianos wish to
be buried in their family plot is being relied upon heavily. It
should be noted, however, that other than Valinos 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 Valinos 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 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, Rosarios 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

188
stressing once more that other than Valinos 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 familys 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 Valinos 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

189
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:
The trial court found that there was good faith on the part of
defendant-appellee Fe Floro Valino, who, having lived with
Atty. Adriano after he was separated in fact from his wife,
lovingly and caringly took care of the well-being of Atty.
Adriano Adriano while he was alive and even took care of his
remains when he had died.
On the issue of damages, plaintiffs-appellants are not entitled
to actual damages. Defendant-appellee Fe Floro 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 burial. Actual damages are
those awarded in satisfaction of, or in recompense for, loss or
injury sustained. To be recoverable, they must not only be
capable of proof but must actually be proven with a reasonable
degree of certainty. In this case at bench, there was no iota of
evidence presented to justify award of actual damages.

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 plaintiffsappellants' 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
WHEREFORE, the petition is DENIED.

Plaintiffs-appellants are not also entitled to moral and

exemplary damages.1wphi1 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

SO ORDERED.
JOSE CATRAL MENDOZA
Associate Justice
Footnotes

190
1

Rollo, pp. 36-46; Penned by Associate Justice Vicente

Q. Roxas with Associate Justice Josefina GuevaraSalonga, and Associate Justice Apolinario D. Bruselas,
Jr., concurring.
2

11

TOLENTINO, I CIVIL CODE OF THE PHILIPPINES,

p. 657, citing Sacred Heart of Jesus v. Soklowski, 159
Minn. 331, 199 N.W. 81; Wilson v. Read, 74 N.H. 322,
68 Atl. 37; Pettigrew v. Pettigrew, 20 Pa. 313, 56 Atl.
878.

Id. at 65.
12

Rollo, p. 43.

Id. at 127-131.
13

Id. at 129-130.

Id. at 131.

Formerly Article 294a of the New Civil Code.

263 Phil. 1149 (1990).

Id. at 1158-1159.

See Marawi Marantao General Hospital, Inc. v. CA,

402 Phil. 356, 369 (2001). See also Thomson v. CA,
358 Phil. 761, 778, (1998); Gatchalian v. Delim, G.R.
No. 56487, October 21, 1991, 203 SCRA 126, 132;
Yepes v. Samar Express Transit, 123 Phil. 948, 949
(1966); Andres v. The Crown Life Insurance Co., 102
Phil. 919, 924(1958); Lang v. Acting Provincial Sheriff
of Surigao, 93 Phil. 661, 669 (1953); and Fernandez v.
Sebido, 70 Phil. 151, 159 (1940).
10

TOLENTINO, I CIVIL CODE OF THE PHILIPPINES,

p. 657, citing Sheeban v. Commercial Travelers, 283
Mass. 543, 186 N.E. 627; Lindh v. Great Northern, 99
Minn. 408, 109 N.W. 823; Kyles v. Southern Ry Co.,
147 N.C. 394, 61 S.E. 278.

TOLENTINO, I CIVIL CODE OF THE PHILIPPINES,

p. 654, citing 1-I Enneccerus, Kipp & Wolff 548 fn; 1
Valverde 239-240 fn.
14

Id. at 43-45.

15

Report of the Code Commission, p. 49.

DISSENTING OPINION

LEONEN, J.:
We will all die. But what may matter to many of us is how we
live and how our life is kept in the memories of those we leave
behind. This case is not about whether a common-law wife has
more rights over the corpse of the husband than the latter's
estranged legal spouse. This case is about which between
them knows his wishes.
Therefore, I respectfully disagree with the ponencia in denying
this petition.
I vote to set aside the decision of the Court of Appeals dated
October 2, 2006 in CA-G.R. CV No. 61613, which directs
petitioner Fe to have the remains of Atty. Lope Adriano
exhumed, and orders respondents to transfer, transport, and
inter, at their expense, the remains of the decedent from

191
Manila Memorial Park to the family plot in Holy Cross Memorial
Park in Novaliches, Quezon City. I vote to sustain the decision
dated October 1, 1998, of the Regional Trial Court of Quezon
City, Branch 77 in Civil Case No. Q-93-15288, dismissing
respondents' complaint for damages.
I disagree with the position that in the determination of how
Atty. Adriano should be buried, "the law gives the right and
duty to make funeral arrangements to Rosario, she being the
surviving legal wife of Atty. Adriano,"1 in accordance with Article
3052 of the Civil Code in relation to Article 1993 of the Family
Code.
I am of the opinion that Article 305 should only be considered
when, first, the deceased left no explicit instructions on how he
wishes to be interred, and second, when none among the
deceaseds surviving relations are willing to make the funeral
arrangements and a conflict arises. In these situations, the
conflict must be settled according to the order of preference
stated in Article 199. In any other case, it should be the
express wishes of the deceased which should take
precedence.
This view, in fact, is embodied in Article 307 of the Civil Code,
which states:
Article 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.
(Emphasis supplied)
It is the ponencias opinion that the wishes of the deceased
contemplated in Article 307 only governs the "form of the

funeral" and that the duty and, more specifically, the right to
make arrangements for the funeral remains with the persons
specified in Article 305 in relation to Article 199. It is my
submission, however, that Article 307 should be interpreted to
mean that the right to determine ones funeral, including the
right to determine how and where one wishes to be buried,
remains with the deceased, and it is only in the absence of his
express wishes, or in the absence of his religious beliefs and
affiliations, or if there is doubt as to his wishes, that other
persons may assume the right to decide the funeral
arrangements.
This right, like other rights pointed out by the ponencia,4 must
not be considered waived or renounced except upon clear and
satisfactory proof of conduct indicative of a free and voluntary
intent to that end. There is neither indication nor have there
been any allegations that Atty. Adriano did not freely and
voluntarily relay his last wishes to his common-law wife,
petitioner Fe. Atty. Adriano, therefore, did not waive his right to
determine where he should be buried, in favor of the persons
indicated in Article 305 in relation to Article 199.
Accordingly, it was improper to cite in the ponencia Tomas
Eugenio, Sr. v. Judge Velez.5 In Eugenio, Tomas Eugenio, Sr.
claimed the right to bury his common-law wife, arguing that he
should be considered a "spouse" under Article 305 in relation
to Article 199. The assertion led this court to expound on the
interpretation of Article 305 in relation to Article 199 and
conclude that:
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

192
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)."

199 with the right and the duty to make funeral arrangements
for Atty. Adriano. What she asserts is that she was Atty.
Adrianos constant companion for a long time who was
constantly by his side, showing him the love and devotion as a
wife would have, who took care of him in his final moments
and gave him a proper burial. As such, there is a presumption
that she would be in the best position to relay his final wishes.
The trial court in its decision dated October 1, 1998 reached
the same conclusion, thus:
Atty. Lope Adrianos wish was established at the trial and
shown in the following testimony of the defendant, to wit:
"ATTY. PIZARRAS:
Madam witness, what was the wish of Atty. Lope Adriano
regarding his burial?

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.6

WITNESS:

In the present case, petitioner Fe has not asserted that she be

considered a "spouse" under Article 305 in relation to Article

Q: What happened to this request if his lawn type lot to be

upgraded to estate type?

He wanted to be buried at Manila Memorial.

Q: Why do you say that?
A: We have discussed it long before.
Q: When did you first discuss this?
A: The first time we went to Manila Memorial. He wanted that
his lawn type lot be upgraded to estate type. He doesnt want
that people will step on his grave.

193
A: It did not take long. I had it upgraded."
(TSN, May 7, 1997, pp. 4-5; underscoring supplied)
This crucial fact remained unrefuted.
Moreover, considering the very, very long time that the
defendant and the deceased lived like husband and wife prior
to his death, it can be reasonably assumed that it is the
defendant who really knows the wishes of the deceased. And it
appears that it was the express wish of the deceased that he
be interred at the Manila Memorial Park.7
The ponencia also noted there was "animosity" between Atty.
Adriano and respondents when he was still alive. He and his
legal spouse, respondent Rosario, have been separated-infact for more than thirty (30) years, and he has not been in
contact with his children, the other respondents, for about the
same period of time. They did not even visit him when he fell ill
and was on his deathbed; it was only after he died that they
came, asserting their rights to his remains.

time, the law also grants us the autonomy or the space to

define who we are. Upon our death, the law does not cease to
respect our earned autonomy. Rather, it gives space for us to
speak through the agency of she who may have sat at our
bedside as we suffered through a lingering illness.
I am of the view that it is that love and caring which should be
rewarded with the honor of putting us in that place where we
mark our physical presence for the last time and where we will
be eternally remembered.
ACCORDINGLY, the petition should be GRANTED. The
decision of the Court of Appeals in CA-G.R. CV No. 61613,
reversing the October 1, 1998 decision of the Regional Trial
Court, Branch 77, Quezon City, must be SET ASIDE.
MARVIC MARIO VICTOR F. LEONEN
Associate Justice

Footnotes
It is unfortunate that the ponencia would rather uphold the
wishes of his estranged family rather than give the deceased
his final request. Part of life is the ability to control how one
wishes to be memorialized, and such right should remain with
the deceased. It is only when the deceased has not left any
express instructions that the right is given to the persons
specified under the law.
Given the circumstances, the remains of Atty. Adriano should
remain in the Floro family mausoleum at the Manila Memorial
Park.

Article 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.
3

The law reaches into much of our lives while we live. It

constitutes and frames most of our actions. But at the same

Ponencia, p. 6.

Article 199. Whenever two or more persons are

obliged to give support, the liability shall devolve upon
the following persons in the order herein provided:

194
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters. (294a)
4

Ponencia, p. 6.

263 Phil. 1149 (1990) [Per J. Padilla, En Banc].

Id. at 1159-1160. See also ponencia, pp. 5-6.

Rollo, p. 129.

SECOND DIVISION

G.R. No. L-55538 March 15, 1982

In the Matter of the Change of Names of DIONESIO
DIVINAGRACIA, JR., and BOMBI ROBERTO
DIVINAGRACIA to DIONESIO NALDOZA and BOMBI
ROBERTO NALDOZA, respectively. ZOSIMA NALDOZA, as
natural guardian and guardian ad litem of said
minors, petitioner-appellant,
vs.
REPUBLIC OF THE PHILIPPINES and JUDGE FERNANDO

195
S. RUIZ of the Court of First Instance of Bohol, Branch
IV, respondents-appellees.

AQUINO, J.:
The issue in this case is whether two minors should be allowed
to discontinue using their father's surname and should use
only their mother's surname.
Zosima Naldoza was married to Dionesio Divinagracia on May
30, 1970. They begot two children named Dionesio, Jr. and
Bombi Roberto who were born on October 23, 1970 and July
22, 1973, respectively.
Zosima's husband left her after she confronted him with his
previous marriage with another woman. He never returned to
the conjugal abode. He allegedly swindled Congressman
Maglana in the sum of P50,000.00, one Galagar in the sum of
P10,000.00 also Eloy Gallentes and other persons.
The classmates of Dionesio, Jr. and Bombi Roberto allegedly
teased them about their father being a swindler. Two criminal
cases for estafa were filed in court against the father.
Desirous of obliterating any connection between her two minor
children and their scapegrace father, Zosima, on August 10,
1978, filed in the Court of First Instance of Bohol a petition
wherein she prayed that the surname of her two children be
changed from Divinagracia to Naldoza, her surname (Special
Proceeding No. 768). After due publication and hearing, the
trial court dismissed the petition.
The trial court did not consider as sufficient grounds for
change of surname the circumstances that the children's father

was a swindler, that he had abandoned them and that his

marriage to Zosima was a second marriage which, however,
had not been annulled nor declared bigamous. It reasoned
that the children's adoption of their mother's surname would
give a false impression of family relationship.
From that decision, Zosima Naldoza appealed to this Court
under Republic Act No. 5440. Appellant's seven assignments
of error may be reduced to the question of whether there is a
justification for the two children to drop their father's surname
and use their mother's surname only.
The minors Dionesio, Jr. and Bombi Roberto, who are
presumably legitimate, are supposed to bear principally the
surname Divinagracia, their father's surname (Art. 364, Civil
Code).
To allow them, at their mother's behest, to bear only their
mother's surname (which they are entitled to use together with
their father's surname) and to discard altogether their father's
surname thus removing the prima-facie evidence of their
paternal provenance or ancestry, is a serious matter in which,
ordinarily, the minors and their father should be consulted. The
mother's desire should not be the sole consideration.
The change of name is allowed only when there are proper
and reasonable causes for such change (Sec. 5, Rule 103,
Rules of Court). Where, as in this case, the petitioners are
minors, the courts should take into account whether the
change of name would redound their welfare or would
prejudice them.
Where the petitioner, a legitimate daughter of a Filipino mother
and a Japanese, elected Philippine citizenship, and her older
brother and sister were using their mother's surname, and the
petitioner felt embarrassed in using her Japanese father's

196
surname (Oshita) because of the ill-feeling harbored by some
Filipinos against the Japanese, and there was no showing that
her desire to use the maternal surname (Bartolome) was
motivated by any fraudulent purpose or that the change of
surname would prejudice public interest, her petition to change
her surname from Oshita to Bartolome was granted (Oshita vs.
Republic, L-21180, March 31, 1967, 19 SCRA 700).
Where the petitioner's name in the civil registry is Maria
Estrella Veronica Primitiva Duterte, Duterte being the surname
of her father Filomeno, who was married to her mother,
Estrella Alfon, but the petitioner since infancy has used the
name Estrella S. Alfon, particularly in the school and voting
records, there is reasonable ground for allowing her to change
her surname from Duterte to Alfon. Such a change would
avoid confusion (Alfon vs. Republic, G.R. No. 51201, May 29,
1980,97 SCRA 858).
The instant case is easily distinguishable from
the Oshita and AIfon cases where the petitioners were already
of age.
We hold that the trial court did not err in denying the petition
for change of name. The reasons adduced for eliminating the
father's surname are not substantial enough to justify the
petition. To allow the change of surname would cause
confusion as to the minors' parentage and might create the
impression that the minors are illegitimate since they would
carry the maternal surname only. That would be inconsistent
with their legitimate status as indicated in their birth records
(Exh. C and D).
As was said in that In re Epstein 200 N.Y.S. 897, "the child
should, and in the course of time must, know of his parentage.
" If, when he fully appreciates the circumstances and is
capable of selecting a name for himself, he wants to use his

mother's surname only and to avoid using his father's

surname, then he should be the one to apply for a change of
surname. See Anno., 53 ALR2d 914.
WHEREFORE, the lower court's decision is affirmed. No
costs.
SO ORDERED.
Concepcion, Jr., Abad Santos, De Castro, Ericta and Escolin
JJ., concur.
Separate Opinions
BARREDO, J., concurring:
At the worst, Dionesio Jr. and Bombito should be considered
as natural children by legal fiction having the same status,
rights and obligations of acknowledged natural children, (Art.
29, Civil Code). among which is the right to bear the surname
of their father. (Art. 28 (1), Civil Code).
SECOND DIVISION
[G.R. No. 133054. January 28, 1999]
REPUBLIC OF THE PHILIPPINES, petitioner,
vs. GERSON R. ABADILLA, LUZVIMINDA M. CELESTINO,
and THE MINORS EMERSON C. ABADILLA AND
RAFAEL C. ABADILLA, REPRESENTED BY THEIR
GUARDIAN
AD
LITEM
LUZVIMINDA
M.
CELESTINO, respondents.

SYNOPSIS

197
Gerson Abadilla, Luzviminda Celestino and their two
minor children Emerson and Rafael filed a Petition for
Correction/Cancellation of Entries in the Birth Certificates of
the children, specifically, the entries in the date and place of
marriage of Qerson and Luzviminda who both testified that
they are not yet married to each other. The Petition was
granted, but the trial court failed to order the change of the
minors surname from Abadilla to Celestino. Hence, this
petition for review.
The petition was granted. There was no dispute that
Emerson and Rafael are illegitimate children. Then, the
Family Code was already the governing law when they were
born. Under Art. 176 of the Civil Code, illegitimate children
shall use the surname of their mother. Resultingly, with the
deletion of the entry in the date and place of marriage of the
parents, the corresponding correction with respect to the
surname of the children should also be made and changed to
Celestino, the mothers surname

SYLLABUS
CIVIL LAW; FAMILY CODE; PATERNITY AND FILIATION;
ILLEGITIMATE CHILDREN SHALL USE THE SURNAME
OF THEIR MOTHER. There is no dispute that Emerson C.
Abadilla and Rafael C. Abadilla are illegitimate children,
their parents, Spouses Herson and Luzviminda not being
married to each other even up to now. During the birth of
Emerson and Rafael, the Family Code was already the
governing law. Thus, as illegitimate children, Emerson
and Rafael should bear the surname of their mother,
Luzviminda Celestino. Resultingly, with the correction of
the entries in their birth certificates which deleted the entry
in the date and place of marriage of parents, the
corresponding correction with respect to their surname

should have also been made and changed to Celestino,

their mothers surname.
APPEARANCES OF COUNSEL
The Solicitor General for petitioner.
Amuerfina Respicio Saleno for private respondent.

R E S O LUTI O N
QUISUMBING, J.:
Gerson Abadilla and Luzviminda Celestino have been living
together as husband and wife without the benefit of marriage. During
their cohabitation, Luzviminda begot two children, Emerson [1] and
Rafael.[2] In the Certificates of Birth of these two children, they were
registered with the surname Abadilla and the name of their father
was entered as Herson Abadilla. Moreover, the entry in the date and
place of marriage of the childrens parents appeared as June 19, 1987
at Dingras, Ilocos Norte.
Thereafter, an Amended Petition for Correction/Cancellation of
Entries dated February 5, 1997[3] was filed by Gerson Abadilla,
Luzviminda Celestino and their two minor children, Emerson and
Rafael, with the Regional Trial Court of Laoag City, Branch 65,
seeking to have the following corrections made in the Certificates of
Birth of Emerson and Rafael:
xxxxxxxxx
a.orderingthattheentriesastothedateandplaceof
marriageofpetitionerGERSONR.ABADILLAand
LUZVIMINDAM.CELESTINOappearinginthe
certificatesofbirthofEmersonC.AbadillaandRafaelC.
Abadillabedeleted;

198
b.orderingthattheentryastothefirstnameofpetitioner
GersonC.Abadillaappearinginthecertificatesofbirthof
(sic)EmersonC.AbadillaandRafaelC.Abadillabe
correctedasGERSON;
x x x x x x x x x [4]

There is no dispute that Emerson C. Abadilla and Rafael C.

Abadilla are illegitimate children, their parents, Spouses Herson and
Luzviminda not being married to each other even up to now.
During the birth of Emerson[6] and Rafael[7], the Family
Code[8] was already the governing law and Article 176 of which
explicitly provides as follows:

During the hearing of the petition, both Gerson Abadilla and

Luzviminda Celestino testified that they are not yet married to each
other despite bearing two children.

Article176.Illegitimatechildrenshallusethe
surnameandshallbeundertheparentalauthorityoftheir
mother,andshallbeentitledtosupportinconformitywith
thisCode.Thelegitimeofeachillegitimatechildshall
consistofonehalfofthelegitimeofalegitimatechild.

In a decision dated February 17, 1998, the trial court granted the
petition and ordered the corresponding correction to be made as
follows:
WHEREFORE,undertheforegoingpremises,the
CivilReistrarofSanNicolas,IlocosNorteishereby
orderedtoissueanAmendedBirthCertificateandChange
anEntrythereinbydeletingthefirstnameHERSONinthe
columnNameofFatherandsubstituteitwithGERSON,
andalsotodeletetheentryappearingthecolumnDateof
MarriageofParentsandPlaceofMarriageofParentsand
leaveitblank,afterpaymentoftherequiredfees.
SOORDERED[5]
The instant petition for review on certiorari is now being
interposed by the Office of the Solicitor General on the ground that
the trial court committed a reversible error when it allowed the
deletion of the date and place of marriage of parents from the birth
certificates of minors Emerson C. Abadilla and Rafael C. Abadilla
but failed to order the change of the minors surname from Abadilla to
Celestino.

Thus, as illegitimate children, Emerson and Rafael should bear

the surname of their mother, Luzviminda Celestino. Resultingly, with
the correction of the entries in their birth certificates which deleted
the entry in the date and place of marriage of parents, the
corresponding correction with respect to their surname should have
also been made and changed to Celestino, their mothers surname.
ACCORDINGLY, in view of the foregoing considerations, the
Decision of the Regional Trial Court of Laoag City, Branch 65, dated
February 17, 1998 in Spcl. Proc. No. 11114-65 is hereby
MODIFIED. The Civil Registrar of San Nicolas, Ilocos Norte is
hereby ordered to change the entry in the Amended Birth Certificates
of respondent-minors Emerson C. Abadilla and Rafael C. Abadilla
with respect to their surname, and enter instead therein the surname
Celestino.
SO ORDERED.
Bellosillo, (Chairman), Puno, Mendoza and Buena, JJ., concur.

The petition must be granted.

[1]

Born on October 18, 1989.

199
[2]

Born on July 28, 1992.

[3]

Docketed as Spcl. Proc. No. 11114-65.

[4]

Rollo p. 23.

[5]

Rollo p. 20

[6]

Born on October 18, 1989.

[7]

Born on July 28, 1992.

[8]

Which took effect on August 30, 1988.

EN BANC

G.R. No. 206248

February 18, 2014

GRACE M. GRANDE, Petitioner,

vs.
PATRICIO T. ANTONIO, Respondent.

DECISION

200
VELASCO, JR., J.:
Before this Court is a Petition for Review on Certiorari under
Rule 45, assailing the July 24, 2012 Decision1 and March 5,
2013 Resolution2 of the Court of Appeals (CA) in CA-G.R. CV
No. 96406.
As culled from the records, the facts of this case are:
Petitioner Grace Grande (Grande) and respondent Patricio
Antonio (Antonio) for a period of time lived together as
husband and wife, although Antonio was at that time already
married to someone else.3 Out of this illicit relationship, two
sons were born: Andre Lewis (on February 8, 1998) and
Jerard Patrick (on October 13, 1999).4 The children were not
expressly recognized by respondent as his own in the Record
of Births of the children in the Civil Registry. The parties
relationship, however, eventually turned sour, and Grande left
for the United States with her two children in May 2007. This
prompted respondent Antonio to file a Petition for Judicial
Approval of Recognition with Prayer to take Parental Authority,
Parental Physical Custody, Correction/Change of Surname of
Minors and for the Issuance of Writ of Preliminary Injunction
before the Regional Trial Court, Branch 8 of Aparri, Cagayan
(RTC), appending a notarized Deed of Voluntary Recognition
of Paternity of the children.5
On September 28, 2010, the RTC rendered a Decision in favor
of herein respondent Antonio, ruling that "[t]he evidence at
hand is overwhelming that the best interest of the children can
be promoted if they are under the sole parental authority and
physical custody of [respondent Antonio]."6 Thus, the court a
quo decreed the following:
WHEREFORE, foregoing premises considered, the Court
hereby grants [Antonios] 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
[Antonios] residence in the Philippines from Monday
until Friday evening and to [Grandes] 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

201
Grande in the amount of P30,000 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 P30,000.00 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 fathers recognition of his children, the
mother cannot be deprived of her sole parental custody over
them absent the most compelling of reasons.10 Since
respondent Antonio failed to prove that petitioner Grande
committed any act that adversely affected the welfare of the
children or rendered her unsuitable to raise the minors, she
cannot be deprived of her sole parental custody over their
children.
The appellate court, however, maintained that the legal
consequence of the recognition made by respondent Antonio
that he is the father of the minors, taken in conjunction with the
universally protected "best-interest-of-the-child" clause,
compels the use by the children of the surname "ANTONIO."11
As to the issue of support, the CA held that the grant is legally
in order considering that not only did Antonio express his
willingness to give support, it is also a consequence of his
acknowledging the paternity of the minor children.12Lastly, the
CA ruled that there is no reason to deprive respondent Antonio
of his visitorial right especially in view of the constitutionally
inherent and natural right of parents over their children.13
Not satisfied with the CAs Decision, petitioner Grande
interposed a partial motion for reconsideration, particularly

202
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 Codeas amended
by Republic Act No. (RA) 9255, couched as it is in permissive
languagemay 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 childrens surname as Antonio.
Parental authority over minor children is lodged by Art. 176 on
the mother; hence, respondents 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?

203
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.

different from the surnames of the childs father or mother.

Indeed, the rule regarding the use of a childs surname is
second only to the rule requiring that the child be placed in the
best possible situation considering his circumstances.

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.

In Republic of the Philippines v. Capote,20 We gave due

deference to the choice of an illegitimate minor to use the
surname of his mother as it would best serve his interest, thus:

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 Respondents position that the court can order
the minors to use his surname, therefore, has no legal basis.

The foregoing discussion establishes the significant

connection of a persons 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.

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 childrens surnames, this Court has,
time and again, rebuffed the idea that the use of the fathers
surname serves the best interest of the minor child. In Alfon v.
Republic,18 for instance, this Court allowed even a legitimate
child to continue using the surname of her mother rather than
that of her legitimate father as it serves her best interest and
there is no legal obstacle to prevent her from using the
surname of her mother to which she is entitled. In fact, in
Calderon v. Republic,19 this Court, upholding the best interest
of the child concerned, even allowed the use of a surname

The law and facts obtaining here favor Giovannis 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 Giovannis 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 mothers 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 fathers surname upon his recognition of
his illegitimate children, citing the Implementing Rules and
Regulations (IRR) of RA 9255,21 which states:

204
Rule 7. Requirements for the Child to Use the Surname of the
Father

Rule 8. Effects of Recognition

8.1 For Births Not Yet Registered

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.

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

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

8.2 For Births Previously Registered under the Surname of the

Mother
8.2.1 If admission of paternity was made either at the back of
the Certificate of Live Birth or in a separate public document or
in a private handwritten document, the public document or
AUSF shall be recorded in the Register of Live Birth and the
Register of Births as follows:
"The surname of the child is hereby changed from (original
surname) to (new surname) pursuant to RA 9255."
The original surname of the child appearing in the Certificate
of Live Birth and Register of Births shall not be changed or
deleted.
8.2.2 If filiation was not expressly recognized at the time of
registration, the public document or AUSF shall be recorded in
the Register of Legal Instruments. Proper annotation shall be
made in the Certificate of Live Birth and the Register of Births
as follows:
"Acknowledged by (name of father) on (date). The surname of
the child is hereby changed from (original surname) on (date)
pursuant to RA 9255." (Emphasis supplied.)

205
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 fathers surname
upon the latters 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
fathers 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:

206
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;

Id. at 42-43.

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

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

Id. at 25.

Id. at 10, 25, 44-46, 50.

c. The parties are DIRECTED to give and share in

support of the minor children Jerard Patrick and Andre
Lewis in the amount of P30,000.00 per month at the
rate of 70% for [Antonio] and 30% for [Grande]; and

Id. at 79.

Id. at 30.

Id. at 24-25.

Id. at 30.

Id. at 31.

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.
PRESBITERO J. VELASCO, JR.
Associate Justice
Footnotes
* On leave.
** No part.

Rollo, pp. 23-41. Penned by Associate .Justice Edwin

D. Sorongon and concurred in by Associate Justices
Hakim S. Abdulwahid and Marlene Gonzales-Sison.

10

Id. at 36-38.

11

Id. at 38.

12

Id. at 39.

13

Id.

14

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," signed
into law on February 24, 2004 and took effect on March
19, 2004 fifteen (15) days after its publication on
Malaya and the Manila Times on March 4, 2004.

207
15

Rule 132, Sec. 19. Classes of Documents. For the

purpose of their presentation in evidence, documents
are either public or private.

20

G.R. No. 157043, February 2, 2007, 514 SCRA 76,

83-84.
21

Public documents are:

(a) The written official acts, or records of the
official acts of the sovereign authotirty, official
bodies and tribunals, and public officers,
whether of the Philippines, or a foreign country;

Office of Civil Registrar General (OCRG)

Administrative Order No. 1, Series of 2004, issued by
the National Statistics Office-Office of the Civil
Registrar General. Approved on May 14, 2004,
published on May 18, 2004 on the Manila Times, and
took effect on June 2, 2004.
22

(b) Documents acknowledged before a notary

public except last will and testaments; and

G.R. No. 170633, October 17, 2007, 536 SCRA 408,

453.
23

(c) Public records, kept in the Philippines, of

private documents required by law to be
entered therein.
All other writings are private.
16

Republic v. Lacap, G.R. No. 158253, March 2, 2007,

517 SCRA 255; Chartered Bank Employees
Association v. Ople, No. L-44717, August 28, 1985, 138
SCRA 273; Quijano v. Development Bank of the
Philippines, G.R. No. 26419, October 19, 1970, 35
SCRA 270; Luzon Surety Co., Inc. v. De Garcia, No. L25659, October 31, 1969, 30 SCRA 111.

Regalado v. Yulo, 61 Phil. 173 (1935); Molina v.

Rafferty, 37 Phil. 545 (1918).
24

The Office of the Civil Registrar General exercises

quasi-judicial powers under Rule 13, Title 1, of NSO
Administrative Order 1-93, December 18, 1993,
Implementing Rules and Regulations of Act No. 3753
and Other Laws on Civil Registration:
RULE 13. Posting of the Pending Application.
(1) A notice to the public on the pending
application for delayed registration shall be
posted in the bulletin board of the
city/municipality for a period of not less than ten
(10) days.

17

Agpalo, Ruben, STATUTORY CONSTRUCTION 460

(6th ed., 2009); citations omitted.
18

No. L-51201, May 29, 1980, 97 SCRA 858.

19

126 Phil. 1 (1967).

(2) If after ten (10) days, no one opposes the

registration, the civil registrar shall evaluate the
veracity of the statements made in the required
documents submitted.
(3) If after proper evaluation of all documents
presented and investigation of the allegations

208
contained therein, the civil registrar is convinced
that the event really occurred within the
jurisdiction of the civil registry office, and finding
out that said event was not registered, he shall
register the delayed report thereof.
(4) The civil registrar, in all cases of delayed
registration of birth, death and marriage, shall
conduct an investigation whenever an
opposition is filed against its registration by
taking the testimonies of the parties concerned
and witnesses in the form of questions and
answers. After investigation, the civil registrar
shall forward his findings and recommendations
to the Office of the Civil Registrar-General for
appropriate action.
(5) The Civil Registrar-General may, after
review and proper evaluation, deny or authorize
the registration.
25

Tan v. COMELEC, G.R. Nos. 166143-47 & 166891,

November 20, 2006, 507 SCRA 352, 370-371.
26

Rollo, pp. 45-46.

27

Rule 132. Sec. 34. Offer of' evidence. - The court

shall consider no evidence which has not been formally
offered. The purpose for which the evidence is offered
must be specified.
28

In family law. the right granted by a court to a parent

or other relative who is deprived custody of a child to
visit the child on a regular basis. See DICTIONARY or
LEGAL TERMS 529 (3rd ed.).

209

FIRST DIVISION
[G.R. No. 112170. April 10, 1996]
CESARIO URSUA, petitioner,
vs. COURT
OF
APPEALS
AND
THE PHILIPPINES, respondents.

PEOPLE

OF

SYLLABUS
1. STATUTORY
CONSTRUCTION;
STATUTES;
CONSTRUED WITH REFERENCE TO THE INTENDED
SCOPE AND PURPOSE. - Time and again we have
decreed that statutes are to be construed in the light of the
purposes to be achieved and the evils sought to be
remedied. Thus in construing a statute the reason for its
enactment should be kept in mind and the statute should
be construed with reference to the intended scope and
purpose. The court may consider the spirit and reason of
the statute, where a literal meaning would lead to
absurdity, contradiction, injustice, or would defeat the
clear purpose of the lawmakers.
2. ID.; COMMONWEALTH ACT 142, AS AMENDED (AN ACT
TO REGULATE THE USE OF ALIASES); PURPOSE IS
TO REGULATE THE USE OF ALIASES IN BUSINESS
TRANSACTION. - The objective and purpose of C.A. No.
142 have their origin and basis in Act No. 3883, An Act to
Regulate the Use in Business Transactions of Names
other than True Names, Prescribing the Duties of the

Director of the Bureau of Commerce and Industry in its

Enforcement, Providing Penalties for Violations thereof,
and for other purposes, which was approved on 14
November 1931 and amended by Act No. 4147, approved
on 28 November 1934. The enactment of C.A. No. 142 as
amended was made primarily to curb the common
practice among the Chinese of adopting scores of
different names and aliases which created tremendous
confusion in the field of trade. Such a practice almost
bordered on the crime of using fictitious names which for
obvious reasons could not be successfully maintained
against the Chinese who, rightly or wrongly, claimed they
possessed a thousand and one names. C.A. No. 142 thus
penalized the act of using an alias name, unless such
alias was duly authorized by proper judicial proceedings
and recorded in the civil register.
3. CRIMINAL LAW; COMMONWEALTH ACT 142, AS
AMENDED (AN ACT TO REGULATE THE USE OF
ALIASES); ALIAS, DEFINED. - An alias is a name or
names used by a person or intended to be used by him
publicly and habitually usually in business transactions in
addition to his real name by which he is registered at birth
or baptized the first time or substitute name authorized by
a competent authority. A mans name is simply the sound
or sounds by which he is commonly designated by his
fellows and by which they distinguish him but sometimes a
man is known by several different names and thse are
known as aliases.
4. ID.; ID.; USE OF FICTITIOUS NAME IN A SINGLE
TRANSACTION WITHOUT INTENDING TO BE KNOWN
BY THIS NAME IN ADDITION TO HIS REAL NAME,
NOT A VIOLATION THEREOF. - The use of a fictitious
name or a different name belonging to another person in a
single instance without any sign or indication that the user
intends to be known by this name in addition to his real

210
name from that day forth does not fall within the
prohibition contained in C.A. No. 142 as amended.
5. ID.; ID.; ID.; CASE AT BAR. - This is so in the case at
bench. It is not disputed that petitioner introduced himself
in the Office of the Ombudsman as Oscar Perez, which
was the name of the messenger of his lawyer who should
have brought the letter to that office in the first place
instead of petitioner. He did so while merely serving the
request of his lawyer to obtain a copy of the complaint in
which petitioner was a respondent. There is no question
then that Oscar Perez is not an alias name of
petitioner. There is no evidence showing that he had used
or was intending to use that name as his second name in
addition to his real name. The use of the name Oscar
Perez was made by petitioner in an isolated transaction
where he was not even legally required to expose his real
identity. For, even if he had identified himself properly at
the Office of the Ombudsman, petitioner would still be
able to get a copy of the complaint as a matter of right,
and the Office of the Ombudsman could not refuse him
because the complaint was part of public records hence
open to inspection and examination by anyone under the
proper circumstances. While the act of petitioner may be
covered by other provisions of law, such does not
constitute an offense within the concept of C.A. No. 142
as amended under which he is prosecuted. The confusion
and fraud in business transactions which the anti-alias
law and its related statutes seek to prevent are not
present here as the circumstances are peculiar and
distinct from those contemplated by the legislature in
enacting C.A. No. 142 as amended. There exists a valid
presumption that undesirable consequences were never
intended by a legislative measure and that a construction
of which the statute is fairly susceptible is favored, which
will avoid all objectionable, mischievous, indefensible,
wrongful, evil and injurious consequences. Indeed, our

mind cannot rest easy on the proposition that petitioner

should be convicted on a law that does not clearly
penalize the act done by him.
Wherefore, the questioned decision of the Court of
Appeals affirming that of the Regional Trial Court of Davao
City is REVERSED and SET ASIDE and petitioner
CESARIO URSUA is ACQUITTED of the crime charged.
6. STATUTORY CONSTRUCTION; A PENAL STATUTE
LIKE COMMONWEALTH ACT 142, AS AMENDED,
CONSTRUED STRICTLY AGAINST THE STATE AND IN
FAVOR OF THE ACCUSED. - As C.A. No. 142 is a penal
statute, it should be construed strictly against the State
and in favor of the accused. The reason for this principle
is the tenderness of the law for the rights of individuals
and the object is to establish a certain rule by conformity
to which mankind would be safe, and the discretion of the
court limited.
APPEARANCES OF COUNSEL
Ceferino Padua Law Office for petitioner.
The Solicitor General for respondents.
DECISION
BELLOSILLO, J.:
This is a petition for a review of the decision of the Court
of Appeals which affirmed the conviction of petitioner by the
Regional Trial Court of Davao City for violation of Sec. 1 of
C.A. No. 142, as amended by R.A. No. 6085, otherwise known
as An Act to Regulate the Use of Alliases.[1]
Petitioner Cesario Ursua was a Community Environment
and Natural Resources Officer assigned in Kidapawan,
Cotabato. On 9 May 1989 the Provincial Governor of Cotabato
requested the Office of the Ombudsman in Manila to conduct

211
an investigation on a complaint for bribery, dishonesty, abuse
of authority and giving of unwarranted benefits by petitioner
and other officials of the Department of Environment and
Natural Resources. The complaint was initiated by the
Sangguniang Panlalawigan of Cotabato through a resolution
advising the Governor to report the involvement of petitioner
and others in the illegal cutting of mahogany trees and hauling
of illegally-cut logs in the area.[2]
On 1 August 1989 Atty. Francis Palmones, counsel for
petitioner, wrote the Office of the Ombudsman in Davao City
requesting that he be furnished copy of the complaint against
petitioner. Atty. Palmones then asked his client Ursua to take
his letter-request to the Office of the Ombudsman because his
law firms messenger, Oscar Perez, had to attend to some
personal matters. Before proceeding to the Office of the
Ombudsman petitioner talked to Oscar Perez and told him that
he was reluctant to personally ask for the document since he
was one of the respondents before the Ombudsman. However,
Perez advised him not to worry as he could just sign his
(Perez) name if ever he would be required to acknowledge
receipt of the complaint.[3]
When petitioner arrived at the Office of the Ombudsman in
Davao City he was instructed by the security officer to register
in the visitors logbook. Instead of writing down his name
petitioner wrote the name Oscar Perez after which he was told
to proceed to the Administrative Division for the copy of the
complaint he needed. He handed the letter of Atty. Palmones
to the Chief of the Administrative Division, Ms. Loida
Kahulugan, who then gave him a copy of the complaint,
receipt of which he acknowledged by writing the name Oscar
Perez.[4]
Before petitioner could leave the premises he was greeted
by an acquaintance, Josefa Amparo, who also worked in the
same office. They conversed for a while then he left.When
Loida learned that the person who introduced himself as Oscar

Perez was actually petitioner Cesario Ursua, a customer of

Josefa Amparo in her gasoline station, Loida reported the
matter to the Deputy Ombudsman who recommended that
petitioner be accordingly charged.
On 18 December 1990, after the prosecution had
completed the presentation of its evidence, petitioner without
leave of court filed a demurrer to evidence alleging that the
failure of the prosecution to prove that his supposed alias was
different from his registered name in the local civil registry was
fatal to its cause. Petitioner argued that no document from the
local civil registry was presented to show the registered name
of accused which according to him was a condition sine qua
non for the validity of his conviction.
The trial court rejected his contentions and found him
guilty of violating Sec. 1 of C.A. No. 142 as amended by R. A.
No. 6085. He was sentenced to suffer a prison term of one (1)
year and one (1) day of prision correccional minimum as
minimum, to four (4) years of prision correccional medium as
maximum, with all the accessory penalties provided for by law,
and to pay a fine of P4,000.00 plus costs.
Petitioner appealed to the Court of Appeals.
On 31 May 1993 the Court of Appeals affirmed the
conviction of petitioner but modified the penalty by imposing
an indeterminate term of one (1) year as minimum to three (3)
years as maximum and a fine of P5,000.00.
Petitioner now comes to us for review of his conviction as.
he reasserts his innocence. He contends that he has not
violated C.A. No. 142 as amended by R. A. No. 6085 as he
never used any alias name; neither is Oscar Perez
his alias. An alias, according to him, is a term which connotes
the habitual use of another name by which a person is also
known. He claims that he has never been known as Oscar
Perez and that he only used such name on one occasion and
it was with the express consent of Oscar Perez himself.It is his

212
position that an essential requirement for a conviction under
C.A. No. 142 as amended by R. A. No. 6085 has not been
complied with when the prosecution failed to prove that his
supposed alias was different from his registered name in the
Registry of Births. He further argues that the Court of Appeals
erred in not considering the defense theory that he was
charged under the wrong law.[5]
Time and again we have decreed that statutes are to be
construed in the light of the purposes to be achieved and the
evils sought to be remedied. Thus in construing a statute the
reason for its enactment should be kept in mind and the
statute should be construed with reference to the intended
scope and purpose.[6] The court may consider the spirit and
reason of the statute, where a literal meaning would lead to
absurdity, contradiction, injustice, or would defeat the clear
purpose of the lawmakers.[7]
For a clear understanding of the purpose of C.A. No. 142
as amended, which was allegedly violated by petitioner, and
the surrounding circumstances under which the law was
enacted, the pertinent provisions thereof, its amendments and
related statutes are herein cited. C.A. No. 142, which was
approved on 7 November 1936, and before its amendment by
R. A. No. 6085, is entitled An Act to Regulate the Use of
Aliases. It provides as follows:
Section1.Exceptasapseudonymforliterarypurposes,noperson
shalluseanynamedifferentfromtheonewithwhichhewas
christenedorbywhichhehasbeenknownsincehischildhood,or
suchsubstitutenameasmayhavebeenauthorizedbyacompetent
court.Thenameshallcomprisethepatronymicnameandoneortwo
surnames.
Section2.Anypersondesiringtouseanaliasoraliasesshallapply
forauthoritythereforinproceedingslikethoselegallyprovidedto
obtainjudicialauthorityforachangeofname.Separateproceedings

shallbehadforeachalias,andeachnewpetitionshallsetforththe
originalnameandthealiasoraliasesfortheuseofwhichjudicial
authorityhasbeenobtained,specifyingtheproceedingsandthedate
onwhichsuchauthoritywasgranted.Judicialauthoritiesfortheuse
ofaliasesshallberecordedinthepropercivilregisterxxx.
The above law was subsequently amended by R. A. No.
6085, approved on 4 August 1969. As amended, C.A. No. 142
now reads:
Section1.Exceptasapseudonymsolelyforliterary,cinema,
television,radioorotherentertainmentpurposesandinathletic
eventswheretheuseofpseudonymisanormallyacceptedpractice,
nopersonshalluseanynamedifferentfromtheonewithwhichhe
wasregisteredatbirthintheofficeofthelocalcivilregistryorwith
whichhewasbaptizedforthefirsttime,orincaseofanalien,with
whichhewasregisteredinthebureauofimmigrationuponentry;or
suchsubstitutenameasmayhavebeenauthorizedbyacompetent
court:Provided,Thatpersonswhosebirthshavenotbeenregistered
inanylocalcivilregistryandwhohavenotbeenbaptized,haveone
yearfromtheapprovalofthisactwithinwhichtoregistertheir
namesinthecivilregistryoftheirresidence.Thenameshall
comprisethepatronymicnameandoneortwosurnames.
Sec.2.Anypersondesiringtouseanaliasshallapplyforauthority
thereforinproceedingslikethoselegallyprovidedtoobtainjudicial
authorityforachangeofnameandnopersonshallbeallowedto
securesuchjudicialauthorityformorethanonealias.Thepetition
foranaliasshallsetforththepersonsbaptismalandfamilynameand
thenamerecordedinthecivilregistry,ifdifferent,hisimmigrants
name,ifanalien,andhispseudonym,ifhehassuchnamesother
thanhisoriginalorrealname,specifyingthereasonorreasonsfor
thedesiredalias.Thejudicialauthorityfortheuseofalias,the
christiannameandthealienimmigrantsnameshallberecordedin
theproperlocalcivilregistry,andnopersonshalluseanynameor

213
namesotherthanhisoriginalorrealnameunlessthesameisorare
dulyrecordedintheproperlocalcivilregistry.
The objective and purpose of C. A. No. 142 have their
origin and basis in Act No. 3883, An Act to Regulate the Use in
Business Transactions of Names other than True Names,
Prescribing the Duties of the Director of the Bureau of
Commerce And Industry in its Enforcement, Providing
Penalties for Violations thereof, and for other purposes, which
was approved on 14 November 1931 and amended by Act No.
4147, approved on 28 November 1934.[8] The pertinent
provisions of Act No. 3883 as amended follow -Section 1. It
shall be unlawful for any person to use or sign, on any written
or printed receipt including receipt for tax or business or any
written or printed contract not verified by a notary public or on
any written or printed evidence of any agreement or business
transactions, any name used in connection with his business
other than his true name, or keep conspicuously exhibited in
plain view in or at the place where his business is conducted, if
he is engaged in a business, any sign announcing a firm name
or business name or style without first registering such other
name, or such firm name, or business name or style in the
Bureau of Commerce together with his true name and that of
any other person having a joint or common interest with him in
such contract agreement, business transaction, or business x
x x.
For a bit of history, the enactment of C.A. No. 142 as
amended was made primarily to curb the common practice
among the Chinese of adopting scores of different names
and aliases which created tremendous confusion in the field of
trade. Such a practice almost bordered on the crime of using
fictitious names which for obvious reasons could not be
successfully maintained against the Chinese who, rightly or
wrongly, claimed they possessed a thousand and one
names. CA. No. 142 thus penalized the act of using an

aliasname, unless such alias was duly authorized by proper

judicial proceedings and recorded in the civil register.[9]
In Yu Kheng Chiau v. Republic[10] the Court had occasion
to explain the meaning, concept and ill effects of the use of
an alias within the purview of C.A. No. 142 when we ruled
TherecanhardlybeanydoubtthatpetitionersuseofaliasKheng
ChiauYounginadditiontohisrealnameYuChengChiauwould
addtomoreconfusion.Thatheisknowninhisbusiness,asmanager
oftheRobertReid,Inc.,bytheformername,isnotsufficientreason
toallowhimitsuse.Afterall,petitioneradmittedthatheisknownto
hisassociatesbybothnames.Infact,theAnselmoTrinidad,Inc.,of
whichheisacustomer,knowshimbyhisrealname.Neitherwould
thefactthathehadencounteredcertaindifficultiesinhistransactions
withgovernmentofficeswhichrequiredhimtoexplainwhyhebore
twonames,justifythegrantofhispetition,forpetitionercouldeasily
avoidsaiddifficultiesbysimplyusingandstickingonlytohisreal
nameYuChengChiau.
Thefactthatpetitionerintendstoresidepermanentlyinthe
Philippines,asshownbyhishavingfiledapetitionfornaturalization
inBranchVoftheabovementionedcourt,arguesthemoreagainst
thegrantofhispetition,becauseifnaturalizedasaFilipinocitizen,
therewouldthenbenonecessityforhisfurtherusingsaidalias,asit
wouldbecontrarytotheusualFilipinowayandpracticeofusing
onlyonenameinordinaryaswellasbusinesstransactions.And,as
thelowercourtcorrectlyobserved,ifhebelieves(afterheis
naturalized)thatitwouldbebetterforhimtowritehisname
followingtheOccidentalmethod,hecaneasilyfileapetitionfor
changeofname,sothatinlieuofthenameYuKhengChian,hecan,
abandoningthesame,askforauthoritytoadoptthenameKheng
ChiauYoung.

214
All things considered, we are of the opinion and so hold,
that petitioner has not shown satisfactory proper and
reasonable grounds under the aforequoted provisions of
Commonwealth Act No. 142 and the Rules of Court, to warrant
the grant of his petition for the use of an alias name.
Clearly therefore an alias is a name or names used by a
person or intended to be used by him publicly and habitually
usually in business transactions in addition to his real name by
which he is registered at birth or baptized the first time or
substitute name authorized by a competent authority. A mans
name is simply the sound or sounds by which he is commonly
designated by his fellows and by which they distinguish him
but sometimes a man is known by several different names and
these are known as aliases.[11] Hence, the use of a fictitious
name or a different name belonging to another person in a
single instance without any sign or indication that the user
intends to be known by this name in addition to his real name
from that day forth does not fall within the prohibition contained
in C.A. No. 142 as amended. This is so in the case at bench.
It is not disputed that petitioner introduced himself in the
Office of the Ombudsman as Oscar Perez, which was the
name of the messenger of his lawyer who should have brought
the letter to that office in the first place instead of petitioner. He
did so while merely serving the request of his lawyer to obtain
a copy of the complaint in which petitioner was a
respondent. There is no question then that Oscar Perez is not
an alias name of petitioner. There is no evidence showing that
he had used or was intending to use that name as his second
name in addition to his real name. The use of the name Oscar
Perez was made by petitioner in an isolated transaction where
he was not even legally required to expose his real
identity. For, even if he had identified himself properly at the
Office of the Ombudsman, petitioner would still be able to get a
copy of the complaint as a matter of right, and the Office of the
Ombudsman could not refuse him because the complaint was

part of public records hence open to inspection and

examination by anyone under the proper circumstances.
While the act of petitioner may be covered by other
provisions of law, such does not constitute an offense within
the concept of C.A. No. 142 as amended under which he is
prosecuted. The confusion and fraud in business transactions
which the anti-alias law and its related statutes seek to prevent
are not present here as the circumstances are peculiar and
distinct from those contemplated by the legislature in enacting
C.A. No. 142 as amended. There exists a valid presumption
that undesirable consequences were never intended by a
legislative measure and that a construction of which the
statute is fairly susceptible is favored, which will avoid all
objectionable, mischievous, indefensible, wrongful, evil and
injurious consequences.[12] Moreover, as C.A. No. 142 is a
penal statute, it should be construed strictly against the State
and in favor of the accused. [13] The reason for this principle is
the tenderness of the law for the rights of individuals and the
object is to establish a certain rule by conformity to which
mankind would be safe, and the discretion of the court limited.
[14]
Indeed, our mind cannot rest easy on the proposition that
petitioner should be convicted on a law that does not clearly
penalize the act done by him.
WHEREFORE, the questioned decision of the Court of
Appeals affirming that of the Regional Trial Court of Davao City
is REVERSED and SET ASIDE and petitioner CESARIO
URSUA is ACQUITTED of the crime charged.
SO ORDERED.
Padilla (Chairman), Vitug, Kapunan, and Hermosisima,
Jr., JJ., concur.

215
[1]

Rollo, pp. 24-37.

[2]

Id., p. 26.

[3]

Records, p. 7.

[4]

Rollo, p. 26.

[5]

Id., p. 12.

[6]

People v. Purisima, Nos. L-42050-66, 28 November 1978,

86 SCRA 524.

[7]

Gregorio, Antonio L., Fundamentals of Criminal Law

Review, 1985 Ed., p. 9; People v. Manantan, No. L14129, 31 July 1962, 5 SCRA 684.

[8]

Aquino, Ramon C., The Revised Penal Code, 1961 Ed., Vol.
II, pp. 1008-1009.

[9]

Francisco, Vicente J., The Revised Penal Code

Annotated, 1954 Ed., Vol. II, p. 331; Guevarra,

Guillermo B., Commentaries on the Revised Penal

Code, 1946 Ed., p. 359.
[10]

106 Phil. 762 (1959).

[11]

Words and Phrases, Permanent Edition, Vol. III, West

Publishing Co., p. 139.

[12]

See Note 6.

[13]

People v. Uy Jui Pio, 102 Phil., 679 (1957).

[14]

See Note 6.