G.R. No. L-33659 June 14, 1990 VICTORIA U. BALUYUT, MA. THERESA U. BALUYUT and MA. FLORDELIZA U.

BALUYUT, all minors, represented by their mother and guardian ad litem, NORMA URBANO, petitioners, vs. FELICEDAD S. BALUYUT and HON. COURT OF APPEALS, respondents. Note: The family name Baluyut appears as Baluyot is some pleadings. Donald E. Asis for the Administratrix MEDIALDEA, J.: This is a petition for certiorari filed by Victoria and Ma. Flordeliza, all surnamed Baluyot, then minors, represented by their mother and guardian ad litem, Norma Urbana which seeks the reversal of the decision of the Court of Appeals in CA-G.R. No. 38069-R entitled "Felicidad S. Baluyut, Administratrix-Appellant v. Victoria U. Baluyut, et al., Intervenors-Appellees." The decision brought to this court for review reversed the decision of the Court of First Instance of Pampanga (now Regional Trial Court) and dismissed the petition for intervention filed by petitioners in the trial court. In Special Proceedings No. 1835, entitled "Intestate Estate of Deceased Enrique Baluyut,' filed before the Court of First Instance of Pampanga, herein petitioners filed on April 29, 1965 a petition for intervention. The petition alleged that petitioners have a legal interest in the estate of the deceased Enrique M. Baluyut; that petitioners-minors are the illegitimate children of the deceased, begotten out of wedlock by said deceased and petitioners' mother and guardian ad litem Norma Urbano; that petitioners were conceived and born at the time when Norma Urbano cohabited with the deceased while the latter was already married to Felicidad S. Baluyut; that they were in continuous possession and enjoyment of the status of children of the deceased during his lifetime by direct overt acts of said deceased having supported and maintained them. The petitioners also alleged that they were deliberately excluded from the estate of Enrique M. Baluyut (pp. 10-18, Record on Appeal). Felicidad S. Baluyut, widow of Enrique and appointed administratrix of his estate, opposed the petition for intervention (p. 20, Record on Appeal). On May 8, 1965 (pp. 18-19, Record on Appeal), the trial court issued an order allowing the petitioners to intervene. After trial, a decision (pp. 24-31, Record on Appeal) was rendered declaring the intervenors Victoria, Ma. Theresa and Ma. Flordeliza the forced heirs of deceased Enrique Baluyut and ordering administratrix Felicidad Vda. de Baluyut to pay P150.00 monthly support to Norma Urbano, guardian ad litem for the three minor children. The dispositive portion of the decision reads: WHEREFORE, the Court hereby orders: 1) FELICIDAD VDA. DE BALUYUT, the administratrix to pay P150.00 as monthly support out of the Estate of Enrique Baluyut to Norma Urbano guardian ad litem for the three minor children, Victoria, Theresa and Flordeliza Baluyut. 2) That under Art. 887, (5) New Civil Code said children are forced heirs of the late Enrique Baluyut. 3) That they are entitled to their hereditary rights in said Estate of Enrique Baluyut under the provisions of the New Civil Code (pp. 29-30, Record on Appeal). On February 15, 1966, the administratrix filed a Notice of Appeal from the trial court's decision. On February 22, 1966, the intervenors filed their Objection to Appeal and Motion for Execution. The latter motion was based on the pronouncement in Salazar v. Salazar, L-5823, April 29, 1953, that an order granting support pendente lite is final and executory.

On May 4,1986, the trial court issued an order (p. 37, Record on Appeal) declaring that it considers intervenors' motion for execution as a motion for reconsideration and amended the decision to the effect that it granted the minors Victoria, Theresa and Flordeliza monthly support pendente lite in the amount of P150.00 payable every first day of the month to their guardian ad litem Norma Urbano. On April 22, 1971, the Court of Appeals rendered judgment (pp. 19-41, Rollo) reversing the decision of the trial court. The dispositive portion of the decision states: WHEREFORE, the appealed judgment is hereby reversed and the intervenors' petition in intervention is hereby declared dismissed, without costs. The order granting alimony pendente lite to the intervenors is hereby set aside. (p. 41, Rollo) Petitioners' motion for reconsideration of respondent Court of Appeals' decision was denied on May 24, 1971 (p. 53, Rollo). Hence, the instant petition for review on certiorari filed on June 19, 1971. On June 23, 1971, We gave due course to the petition (p. 57, Rollo). On July 1, 1971, We required the petitioners to file their brief (p. 58, Rollo). Respondents, on the other hand, filed their brief on October 28, 1971 (p. 85, Rollo). On December 17, 1971, the petition was considered submitted for decision (p. 87, Rollo). On June 3, 1975, petitioners filed a "Motion and Manifestation" praying for the reinstatement of the order of the trial court to grant the petitioners monthly support during the pendency of the case. The said order for monthly support granted by the trial court in its decision of May 4, 1966 was terminated in the early part of 1971 (p. 90, Rollo). When asked to comment on the manifestation and motion of petitioners, respondents opposed said motion in view of respondent Court of appeals' finding that petitioners were not the recognized spurious children of deceased Baluyut (p. 113, Rollo). On November 25, 1976, We granted petitioner's motion for continuation of their monthly support pendente lite effective June 1975 until further orders (p. 141, Rollo). After an exchange of pleadings by the parties regarding the order of this court on the matter of the continuation of petitioners' support pendente lite, and after a motion filed by petitioners to cite administratrix for contempt, private respondents filed a manifestation on January 6,1978, informing this Court that: 1) the former administratrix Felicidad S. Baluyut was substituted by one of her daughters, Milagros B. Villar, as Special Administratrix; and that 2) they have complied with the September 13, 1977 resolution of the court requiring them to show cause why they should not be dealt with as in contempt for failing to obey the order to pay petitioners a monthly support pendente lite. Private respondents also manifested their compliance by depositing with the then Court of First Instance of Pampanga, Branch 1, a Philippine Commercial and Industrial Bank check in the amount of P4,350.00 representing the required support until October, 1977. Another PCIB check in the amount of P300.00 representing support pendente lite for November and December, 1977 was also deposited with the trial court (p. 335, Rollo). On February 19, 1980, petitioners, assisted by their guardian ad litem and private respondent Administratrix Milagros B. Villar, both parties assisted by their respective counsel, filed a Joint Motion to Dismiss the petition in view of petitioners 'filing of a "Petition for Withdrawal of Intervention" with the Court of First Instance of Pampanga taking cognizance of the Intestate Estate of Enrique Baluyut. The petition for withdrawal was based on a waiver by petitioners of any right or interest they may have on the estate of the deceased in consideration of the financial assistance granted them by the administratrix of the estate (p. 371, Rollo). The petition for withdrawal of intervention was approved by the intestate court on February 14, 1980 (p. 369,

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Rollo), while the Joint Motion to Dismiss the instant petition was noted by this court on April 3, 1981 (p. 372, Rollo). The withdrawal of intervention in consideration of the financial assistance extended to petitioners by the administratrix of the estate of the deceased Enrique M. Baluyut (p. 37, Rollo) is in the nature of a compromise settlement of the instant petition (p. 371, Rollo). Considering, however, that the issue involved in this case is whether or not petitioners, Victoria, Ma. Theresa and Ma. Flordeliza, all surnamed Baluyut are the acknowledged, spurious children of the deceased, Enrique M. Baluyut, the Joint Motion to Dismiss the instant petition cannot be granted, acknowledgment, affecting as it does the civil status of persons and of future support cannot be the subject of a compromise (pars. 1 and 4, Article 2035 of the Civil Code). (See Advincula v. Advincula, L-19065, January 31, 1964). The trial court found that petitioners are the illegitimate children of the deceased Enrique M. Baluyut. This finding was shared by respondent Court of Appeals: ... the testimony of Norma Urbana supported by that of Liberata Vasquez on the one hand as against that of the administratrix who declared that she and her late husband were always together and that of Cecilia Waters who testified that Norma had a suitor named Lieut. Alex on the other, leads us to give credence to the proof of the intervenors specifically the testimony of Norma that the intervenors are in fact her illegitimate children with the late Enrique M. Baluyut (p. 35, Rollo). However, proof of filiation of the petitioners to the late Enrique M. Baluyut is not sufficient to confer upon them any hereditary right in the estate of the deceased. What is necessary to be established by an illegitimate not natural child in order that he may be entitled to successional rights under Article 887 of the New Civil Code, is not the fact of his bare filiation but a filiation acknowledged by the putative parent. This has been the consistent pronouncement of this Court since the reversal of the pronouncement in Reyes, et al. v. Zuzuarregui, et al., 102 Phil. 346 by the pronouncement in the case of Paulino v. Paulino, 113 Phil. 697, 700, 701, 702. In the Paulino case, it was held: An illegitimate (spurious) child to be entitled to support and successional rights from his putative or presumed parents must prove his filiation to them. Filiation may be established by the voluntary or compulsory recognition of the illegitimate (spurious) child. Recognition is voluntary when "made in the record of birth, a will, a statement before a court of record, or in any authentic writing." It is compulsory when by court action the child brings about his recognition. ... xxx xxx xxx It is true that by their motion to dismiss the appellees are deemed to have admitted that the appellant is the illegitimate spurious, not natural child of the deceased Marcos Paulino. Such an admission, however, does not entitle her to inherit from her alleged putative father. It is necessary to allege that her putative father had acknowledged and recognized her as such. Such acknowledgment is essential and is the basis other right to inherit. There being no allegation of such acknowledgment the action becomes one to compel recognition which cannot be brought after the death of the putative father. This was reiterated in the case of Republic v. Workmen's Compensation Commission, 121 Phil. 261, where this Court held that: ... the illegitimate (spurious) child, to be entitled to support and successional rights from his parents, must prove his filiation and this may be done by means of voluntary or

compulsory recognition of the relationship. For this purpose, the provisions concerning natural children are held applicable. ... There are two modes of acknowledgment provided in the New Civil Code; one, by the voluntary recognition by the putative parent made in the record of birth, a statement before the court of record, or in any authentic writing (Art. 278, New Civil Code) and two, by compulsory recognition under Article 283 of the same law. Were the petitioners voluntarily recognized by the late Enrique M. Baluyut as his illegitimate spurious children? There is no evidence as required by Article 278 which proves that the petitioners were recognized by the deceased during his lifetime as his spurious children. The petitioners' records of birth, although in the name of Enrique Baluyut, were not signed by the latter. There was no authentic writing presented nor any statement in a court of record which would prove that the petitioners were recognized by the deceased. With regard to compulsory recognition, Article 283 enumerates the cases where the father is obliged to recognize the child as his, namely: a) in cases of rape, abduction or seduction, when the period of the offense coincides more or less with that of the conception; b) when the child is in continuous possession of the status of a child of the alleged father by the direct acts of the latter or his family; c) when the child was conceived during the time when the mother cohabited with the supposed father; d) when the child has in his favor any evidence or proof that the defendant is his father. The grounds relied upon by petitioners for compelling the heirs of Baluyut to recognize them as the heirs of the deceased were the alleged possession by the petitioners of the status of recognized illegitimate spurious children and that they were conceived at the time when their mother cohabited with the deceased. Since the petitioners were still minors at the time of the death of Enrique M. Baluyut, the action for compulsory recognition was correctly filed by petitioners' guardian ad litem and mother, Norma Urbano. However, as correctly pointed out by respondent appellate court, since the recognition sought in the case is compulsory, strictness in the application of the rules applies. We agree with respondent appellate court that the evidence presented by petitioners failed to satisfy the high standard of proof required for the success of their action for compulsory recognition. Respondent court held: The combined testimony of Norma Urbano and her witness Liberata Vasquez insofar as the issue of recognition is concerned tends to show that Norma was kept by the late Enrique M. Baluyut as his mistress first in the house of Liberata and then in a house supposedly rented from one Lacuna. But this Lacuna was not even presented to testify in support of the claim of Norma and Liberate that Baluyut rented his house for Norma. And, according to Norma and Liberata, Baluyut visited Norma some twice a week in the house where she kept her as his mistress; that Baluyut paid the hospital bills for the delivery of the two younger children of Norma. But, according to Liberata herself, it was not Baluyut who personally paid the hospital bills but he gave the money for the payment of the hospital bills to Liberato and he requested her to pay the money to the hospital. This only shows that Baluyut was hiding his Identity as the father of the children of Norma, an act which is inconsistent with recognizing such children as his own. If Enrique did not want to hide being the father of the intervenors who were born at the Ortanez hospital, there was no need for him to ask Liberata to pay the hospital bill of Norma for the delivery of her youngest child as Baluyut could have easily done this

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himself. There is not even evidence showing that he visited Norma at the hospital when she delivered there. Coupled with the circumstance that Enrique tried to hide his being the father of the intervenors, there is absence of positive and convincing proof that Enrique treated the intervenors as his children in all relations in society and in life. Far from treating them in society as his children, he was hiding Norma and the intervenors from society and visited them only once in a while evidently only to satisfy his sexual urge with Norma but with no genuine desire to have and treat the intervenors so as to confer on them the continuous possession of the status of recognized illegitimate (not natural) children. There is not even any proof that he had brought out these intervenors to show them publicly as his children. With the single exception of Liberata Vasquez, not a single neighbor of Norma in the rather populous area of Project 4, Quezon City, was produced to testify on any act of Enrique to show his genuine desire to treat the intervenors as his very own in his actual relations. The foregoing deficiencies in the intervenors' proof is fatal to their case. In order to prove the continuous possession of the status of a natural child, the acts must be of such a nature that they reveal, not only the conviction of paternity, but also the apparent desire to have and treat the child as such in all relations in society and in life, not accidentally, but continuously' (Igar, et al. vs. Vda. de Balingkit, CA, 60 O.G. 7792; Onos, et al. vs. Vda. de Onos, CAG.R. No. 24646-R, July 22, 1964). The birth certificates Exhibits 'A,' 'B' and 'C' of the intervenors do not help their case for these are not evidence of recognized filiation by the deceased Enrique Baluyut because, firstly, they were admitted in evidence by the lower court merely as part of the of the witnesses who referred to them in the course of said witnesses' testimony and hence, they are not evidence of the facts stated in them. Secondly, they are merely evidence of the fact that gave rise to their execution, that is, the fact of birth and nothing else, much leas of recognition as they are not signed by Enrique Baluyut. In an action for compulsory acknowledgment under paragraph 4, Article 283 of the Civil Code, a birth certificate which, on its face, was not signed by the supposed natural father is incompetent evidence on paternity, being in violation of oration 5 of Act 3753 and Article 280 of the Civil Code' (Roces vs. Local Civil Registrar, 54 O.G. 4950; Crisolo va. Macadaong, No. L-7017, April 19, 1964; Bernabe, etc. vs. Lacodin, CA, 59 O.G. 3178). If birth certificates, which are unsigned by the presumed father as required by section 5 of Act No. 3752 and Article 280 of the Civil Code, are incompetent evidence even to prove paternity alone, with more reason are birth certificates incompetent evidence to prove recognized filiation. (pp. 36-39, Rollo) Petitioners would have Us relax Our rule on strictness of the application of law regarding compulsory recognition as first laid down in the Javellana v. Monteclaro, 74 Phil. 393. They opined that the said case was in fact the forerunner of the liberal view that has found its way into the present provisions of the New Civil Code governing paternity and recognition. Petitioners failed to grasp the import of this Court's ruling in the Javellana case. That the case was the forerunner of the liberal view that has found its way into our statute books, is true. But, the rule of liberality enunciated therein applied only to case involving voluntary recognition specifically in a public document and not to cases of compulsory recognition. Thus, Upon the second point, whether a voluntary acknowledgment may be done incidentally in a public document, a distinction must be made between the two kinds of

acknowledgment: (1) voluntary, and (2) compulsory. In the former, recognition may be incidental, but in the latter, it must be direct and express. In actions to compel the alleged father to acknowledge his natural child, based upon recognition in an indubitable writing, article 135, par. 1, of the Civil Code, requires that the father must expressly recognize his paternity. This provision has been strictly construed by Spanish and Philippine jurisprudence against the alleged natural child. Thus, in the Sentence of July 5,1906, the Supreme Tribunal of Spain held in an action to compel acknowledgment under article 135, that a mere allusion, more or leas clear, by the alleged father to his supposed child, if there is no express recognition of his paternity, is not sufficient. In the Sentence of April 8,1915, that same Tribunal declared that there should be an indubitable documentary proof or uninterrupted on of the status of a natural child, excluding deductions and conjectures. As to Philippine cases, the same rule has been adhered to in several decisions by this court. Thus, in Benedicto vs. De la Rama, 4 Phil., 746, an action was filed to compel recognition of a natural child, based in part on a letter of defendant telling the mother of his affection toward her and asking her to take care of the child. This court held that the letter did not expressly recognize the child, under article 135. In Buenaventura vs. Urbano, 5 Phil. 1, the alleged father wrote the child a letter advising him how to conduct himself. This court held that the letter did not contain an-express recognition under article 135. But while in actions to compel recognition the foregoing principle is true with respect to indubitable writings according to article 135, par. 1 of the Civil Code, however, in cases of voluntary acknowledgment in a public document under article 131, the law is more liberal and permits an incidental recognition. ... (Javellana, et al. v. Monteclaro, et al., 74 Phils. 393) ACCORDINGLY, the decision appealed from is AFFIRMED. No costs. SO ORDERED. Narvasa (Chairman), Cruz and Gancayco, JJ., concur. Grio-Aquino, J., is on leave.

G.R. No. 150644 August 28, 2006 EDWARD V. LACSON, Petitioner, vs. MAOWEE DABAN LACSON and MAONAA DABAN LACSON, represented by their mother and guardian ad-litem, LEA DABAN LACSON, Respondents. DECISION GARCIA, J.: 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 1 setting aside of the Decision dated July 13, 2001 of the Court of Appeals (CA) in CA-G.R. CV No. 2 60203, as reiterated in its Resolution 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: 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

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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 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. 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 up nursing 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. 3 In that complaint dated January 30, 1995, as amended, 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 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. 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 4 conditions set forth in the courts corresponding order of May 13, 1996. 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 5 represented 216 months, or 18 years, of support in arrears. The fallo of the trial courts decision 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 3) Pay costs. 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, 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 7 its equally assailed Resolution of October 18, 2001. Hence, Edwards present recourse on his submission that the CA erred 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. 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 SATIS FIED BY THE PROCEEDS OF THE SALE OF HIS EXCLUSIVE PROPERTY WHICH WERE ALL APPROPRIATED BY THE RESPONDENTS. 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 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

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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 8 since 1976, when she went to her mothers house. . (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 9 1976. (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 10 accorded respect, if not finality, save for the most compelling and cogent reasons. Not one of the well-recognized 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 11 the proceedings below, except when, as earlier indicated, 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 lam ent 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, 12 medical attendance and education, 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 13 petitioner and Noel Daban is a quasi-contract, 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 14 needs of the recipient. 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 15 property." 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. G.R. No. 162571 June 15, 2005 ARNEL L. AGUSTIN, petitioner, vs. HON. COURT OF APPEALS AND MINOR MARTIN JOSE PROLLAMANTE, REPRESENTED BY HIS MOTHER/GUARDIAN FE ANGELA PROLLAMANTE, respondents. DECISION CORONA, J.:

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At issue in this petition for certiorari is whether or not the Court of Appeals (CA) gravely erred in 2 exercising its discretion, amounting to lack or excess of jurisdiction, in issuing a decision and 3 4 resolution upholding the resolution and order of the trial court, which denied petitioners motion to dismiss private respondents complaint for support and directed the parties to submit themselves to deoxyribonucleic acid (DNA) paternity testing. Respondents Fe Angela and her son Martin Prollamante sued Martins alleged biological father, petitioner Arnel L. Agustin, for support and support pendente lite before the Regional Trial Court 5 (RTC) of Quezon City, Branch 106. In their complaint, respondents alleged that Arnel courted Fe in 1992, after which they entered into an intimate relationship. Arnel supposedly impregnated Fe on her 34th birthday on November 10, 1999. Despite Arnels insistence on abortion, Fe decided otherwise and gave birth to their child out of wedlock, Martin, on August 11, 2000 at the Capitol Medical Hospital in Quezon City. The babys birth certificate was purportedly signed by Arnel as the father. Arnel shouldered the pre-natal and hospital expenses but later refused Fes repeated requests for Martins support despite his adequate financial capacity and even suggested to have the child committed for adoption. Arnel also denied having fathered the child. On January 19, 2001, while Fe was carrying five-month old Martin at the Capitol Hills Golf and Country Club parking lot, Arnel sped off in his van, with the open car door hitting Fes leg. This incident was reported to the police. In July 2001, Fe was diagnosed with leukemia and has, since 6 then, been undergoing chemotherapy. On March 5, 2002, Fe and Martin sued Arnel for support. In his amended answer, Arnel denied having sired Martin because his affair and intimacy with Fe had allegedly ended in 1998, long before Martins conception. He claimed that Fe had at least one other secret lover. Arnel admitted that their relationship started in 1993 but "he never really fell in love with (Fe) not only because (she) had at least one secret lover, a certain Jun, but also because she proved to be scheming and overly demanding and possessive. As a result, theirs was a stormy on-and-off affair. What started as a romantic liaison between two consenting adults eventually turned out to be a case of fatal attraction where (Fe) became so obsessed with (Arnel), to the point of even entertaining the idea of marrying him, that she resorted to various devious ways and means to alienate (him) from his wife and family. Unable to bear the prospect of losing his wife and children, Arnel terminated the affair although he still treated her as a friend such as 7 by referring potential customers to the car aircon repair shop" where she worked. Later on, Arnel found out that Fe had another erstwhile secret lover. In May 2000, Arnel and his entire family went to the United States for a vacation. Upon their return in June 2000, Arnel learned that Fe was telling people that he had impregnated her. Arnel refused to acknowledge the child as his 8 because their "last intimacy was sometime in 1998." Exasperated, Fe started calling Arnels wife and family. On January 19, 2001, Fe followed Arnel to the Capitol Hills Golf and Country Club parking lot to demand that he acknowledge Martin as his child. According to Arnel, he could not get through Fe and the discussion became so heated that he had no "alternative but to move on 9 but without bumping or hitting any part of her body." Finally, Arnel claimed that the signature and the community tax certificate (CTC) attributed to him in the acknowledgment of Martins birth certificate were falsified. The CTC erroneously reflected his marital status as single when he 10 was actually married and that his birth year was 1965 when it should have been 1964. In his pre-trial brief filed on May 17, 2002, Arnel vehemently denied having sired Martin but 11 expressed willingness to consider any proposal to settle the case. On July 23, 2002, Fe and Martin moved for the issuance of an order directing all the parties to 12 submit themselves to DNA paternity testing pursuant to Rule 28 of the Rules of Court.

Arnel opposed said motion by invoking his constitutional right against self-incrimination. He also moved to dismiss the complaint for lack of cause of action, considering that his signature on the birth certificate was a forgery and that, under the law, an illegitimate child is not entitled to 14 support if not recognized by the putative father. In his motion, Arnel manifested that he had filed criminal charges for falsification of documents against Fe (I.S. Nos. 02-5723 and 02-7192) and a petition for cancellation of his name appearing in Martins birth certificate (docketed as Civil Case No. Q-02-46669). He attached the certification of the Philippine National Police Crime Laboratory that his signature in the birth certificate was forged. The trial court denied the motion to dismiss the complaint and ordered the parties to submit themselves to DNA paternity testing at the expense of the applicants. The Court of Appeals affirmed the trial court. Thus, this petition. In a nutshell, petitioner raises two issues: (1) whether a complaint for support can be converted to a petition for recognition and (2) whether DNA paternity testing can be ordered in a proceeding for support without violating petitioners constitutional right to privacy and right against self15 incrimination. The petition is without merit. First of all, the trial court properly denied the petitioners motion to dismiss because the private respondents complaint on its face showed that they had a cause of action against the petitioner. The elements of a cause of action are: (1) the plaintiffs primary right and the defendants corresponding primary duty, and (2) the delict or wrongful act or omission of the defendant, by which the primary right and duty have been violated. The cause of action is determined not by the 16 prayer of the complaint but by the facts alleged. In the complaint, private respondents alleged that Fe had amorous relations with the petitioner, as a result of which she gave birth to Martin out of wedlock. In his answer, petitioner admitted that he had sexual relations with Fe but denied that he fathered Martin, claiming that he had ended the relationship long before the childs conception and birth. It is undisputed and even admitted by the parties that there existed a sexual relationship between Arnel and Fe. The only remaining question is whether such sexual relationship produced the child, Martin. If it did, as respondents have alleged, then Martin should be supported by his father Arnel. If not, petitioner and Martin are strangers to each other and Martin has no right to demand and petitioner has no obligation to give support. Preliminaries aside, we now tackle the main issues. Petitioner refuses to recognize Martin as his own child and denies the genuineness and authenticity of the childs birth certificate which he purportedly signed as the father. He also claims that the order and resolution of the trial court, as affirmed by the Court of Appeals, effectively converted the complaint for support to a petition for recognition, which is supposedly proscribed by law. According to petitioner, Martin, as an unrecognized child, has no right to ask 17 for support and must first establish his filiation in a separate suit under Article 283 in relation to 18 19 Article 265 of the Civil Code and Section 1, Rule 105 of the Rules of Court. The petitioners contentions are without merit. The assailed resolution and order did not convert the action for support into one for recognition but merely allowed the respondents to prove their cause of action against petitioner who had been denying the authenticity of the documentary evidence of acknowledgement. But even if the assailed resolution and order effectively integrated an action to compel recognition with an action 20 for support, such was valid and in accordance with jurisprudence. In Tayag v. Court of Appeals,

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we allowed the integration of an action to compel recognition with an action to claim ones inheritance: In Paulino, we held that an illegitimate child, to be entitled to support and successional rights from the putative or presumed parent, must prove his filiation to the latter. We also said that it is necessary to allege in the complaint that the putative father had acknowledged and recognized the illegitimate child because such acknowledgment is essential to and is the basis of the right to inherit. There being no allegation of such acknowledgment, the action becomes one to compel recognition which cannot be brought after the death of the putative father. The ratio decidendi in Paulino, therefore, is not the absence of a cause of action for failure of the petitioner to allege the fact of acknowledgment in the complaint, but the prescription of the action. Applying the foregoing principles to the case at bar, although petitioner contends that the complaint filed by herein private respondent merely alleges that the minor Chad Cuyugan is an illegitimate child of the deceased and is actually a claim for inheritance, from the allegations therein the same may be considered as one to compel recognition. Further, that the two causes of action, one to compel recognition and the other to claim inheritance, may be joined in one complaint is not new in our jurisprudence. As early as [1922] we had occasion to rule thereon in Briz vs. Briz, et al. (43 Phil. 763 [1922]) wherein we said: The question whether a person in the position of the present plaintiff can in any event maintain a complex action to compel recognition as a natural child and at the same time to obtain ulterior relief in the character of heir, is one which in the opinion of this court must be answered in the affirmative, provided always that the conditions justifying the joinder of the two distinct causes of action are present in the particular case. In other words, there is no absolute necessity requiring that the action to compel acknowledgment should have been instituted and prosecuted to a successful conclusion prior to the action in which that same plaintiff seeks additional relief in the character of heir. Certainly, there is nothing so peculiar to the action to compel acknowledgment as to require that a rule should be here applied different from that generally applicable in other cases. x x x The conclusion above stated, though not heretofore explicitly formulated by this court, is undoubtedly to some extent supported by our prior decisions. Thus, we have held in numerous cases, and the doctrine must be considered well settled, that a natural child having a right to compel acknowledgment, but who has not been in fact legally acknowledged, may maintain partition proceedings for the division of the inheritance against his coheirs x x x; and the same person may intervene in proceedings for the distribution of the estate of his deceased natural father, or mother x x x. In neither of these situations has it been thought necessary for the plaintiff to show a prior decree compelling acknowledgment. The obvious reason is that in partition suits and distribution proceedings the other persons who might take by inheritance are before the court; and the declaration of heirship is appropriate to such proceedings. (Underscoring supplied) Although the instant case deals with support rather than inheritance, as in Tayag, the basis or rationale for integrating them remains the same. Whether or not respondent Martin is entitled to support depends completely on the determination of filiation. A separate action will only result in a multiplicity of suits, given how intimately related the main issues in both cases are. To paraphrase Tayag, the declaration of filiation is entirely appropriate to these proceedings. On the second issue, petitioner posits that DNA is not recognized by this Court as a conclusive means of proving paternity. He also contends that compulsory testing violates his right to privacy

and right against self-incrimination as guaranteed under the 1987 Constitution. These contentions have no merit. Given that this is the very first time that the admissibility of DNA testing as a means for determining paternity has actually been the focal issue in a controversy, a brief historical sketch of our past decisions featuring or mentioning DNA testing is called for. 21 In the 1995 case of People v. Teehankee where the appellant was convicted of murder on the testimony of three eyewitnesses, we stated as an obiter dictum that "while eyewitness identification is significant, it is not as accurate and authoritative as the scientific forms of identification evidence such as the fingerprint or the DNA test result (emphasis supplied)." Our faith in DNA testing, however, was not quite so steadfast in the previous decade. In Pe Lim v. 22 Court of Appeals, promulgated in 1997, we cautioned against the use of DNA because "DNA, being a relatively new science, (had) not as yet been accorded official recognition by our courts. Paternity (would) still have to be resolved by such conventional evidence as the relevant incriminating acts, verbal and written, by the putative father." In 2001, however, we opened the possibility of admitting DNA as evidence of parentage, as 23 enunciated in Tijing v. Court of Appeals: A final note. Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and child are analyzed to establish parentage. Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress. The first real breakthrough of DNA as admissible and authoritative evidence in Philippine 24 jurisprudence came in 2002 with our en banc decision in People v. Vallejo where the rape and murder victims DNA samples from the bloodstained clothes of the accused were admitted in evidence. We reasoned that "the purpose of DNA testing (was) to ascertain whether an association exist(ed) between the evidence sample and the reference sample. The samples collected (were) subjected to various chemical processes to establish their profile." 25 A year later, in People v. Janson, we acquitted the accused charged with rape for lack of evidence because "doubts persist(ed) in our mind as to who (were) the real malefactors. Yes, a complex offense (had) been perpetrated but who (were) the perpetrators? How we wish we had DNA or other scientific evidence to still our doubts!" 26 In 2004, in Tecson, et al. v. COMELEC where the Court en banc was faced with the issue of filiation of then presidential candidate Fernando Poe Jr., we stated: In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to. A positive match would clear up filiation or paternity. In Tijing vs. Court of Appeals, this Court has acknowledged the strong weight of DNA testing 27 Moreover, in our en banc decision in People v. Yatar, we affirmed the conviction of the accused for rape with homicide, the principal evidence for which included DNA test results. We did a

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lengthy discussion of DNA, the process of DNA testing and the reasons for its admissibility in the context of our own Rules of Evidence: Deoxyribonucleic Acid, or DNA, is a molecule that encodes the genetic information in all living organisms. A persons DNA is the same in each cell and it does not change throughout a persons lifetime; the DNA in a persons blood is the same as the DNA found in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus, urine, skin tissue, and vaginal and rectal cells. Most importantly, because of polymorphisms in human genetic structure, no two individuals have the same DNA, with the notable exception of identical twins. xxx xxx xxx In assessing the probative value of DNA evidence, courts should consider, inter alia, the following factors: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests. In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the prosecution as an expert witness on DNA print or identification techniques. Based on Dr. de Ungrias testimony, it was determined that the gene type and DNA profile of appellant are identical to that of the extracts subject of examination. The blood sample taken from the appellant showed that he was of the following gene types: vWA 15/19, TH01 7/8, DHFRP29/10 and CSF1PO 10/11, which are identical with semen taken from the victims vaginal canal. Verily, a DNA match exists between the semen found in the victim and the blood sample given by the appellant in open court during the course of the trial. Admittedly, we are just beginning to integrate these advances in science and technology in the Philippine criminal justice system, so we must be cautious as we traverse these relatively uncharted waters. Fortunately, we can benefit from the wealth of persuasive jurisprudence that has developed in other jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven instructive. In Daubert v. Merrell Dow (509 U.S. 579 (1993); 125 L. Ed. 2d 469) it was ruled that pertinent evidence based on scientifically valid principles could be used as long as it was relevant and reliable. Judges, under Daubert, were allowed greater discretion over which testimony they would allow at trial, including the introduction of new kinds of scientific techniques. DNA typing is one such novel procedure. Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief in its existence or non-existence. Applying the Daubert test to the case at bar, the DNA evidence obtained through PCR testing and utilizing STR analysis, and which was appreciated by the court a quo is relevant and reliable since it is reasonably based on scientifically valid principles of human genetics and molecular biology. Significantly, we upheld the constitutionality of compulsory DNA testing and the admissibility of the results thereof as evidence. In that case, DNA samples from semen recovered from a rape victims vagina were used to positively identify the accused Joel "Kawit" Yatar as the rapist. Yatar claimed that the compulsory extraction of his blood sample for DNA testing, as well as the testing itself, violated his right against self-incrimination, as embodied in both Sections 12 and 17 of Article III of the Constitution. We addressed this as follows: The contention is untenable. The kernel of the right is not against all compulsion, but against testimonial compulsion. The right against self-incrimination is simply against the legal process of

extracting from the lips of the accused an admission of guilt. It does not apply where the evidence sought to be excluded is not an incrimination but as part of object evidence. Over the years, we have expressly excluded several kinds of object evidence taken from the 28 29 person of the accused from the realm of self-incrimination. These include photographs, hair, 30 and other bodily substances. We have also declared as constitutional several procedures 31 performed on the accused such as pregnancy tests for women accused of adultery, expulsion of 32 morphine from ones mouth and the tracing of ones foot to determine its identity with bloody 33 34 footprints. In Jimenez v. Caizares, we even authorized the examination of a womans genitalia, in an action for annulment filed by her husband, to verify his claim that she was impotent, her orifice being too small for his penis. Some of these procedures were, to be sure, rather invasive and involuntary, but all of them were constitutionally sound. DNA testing and its 35 results, per our ruling in Yatar, are now similarly acceptable. 36 Nor does petitioners invocation of his right to privacy persuade us. In Ople v. Torres, where we struck down the proposed national computerized identification system embodied in Administrative Order No. 308, we said: In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into individual privacy. The right is not intended to stifle scientific and technological advancements that enhance public service and the common good... Intrusions into the right must be accompanied by proper safeguards that enhance public service and the common good. 37 Historically, it has mostly been in the areas of legality of searches and seizures, and the 38 infringement of privacy of communication where the constitutional right to privacy has been critically at issue. Petitioners case involves neither and, as already stated, his argument that his right against self-incrimination is in jeopardy holds no water. His hollow invocation of his constitutional rights elicits no sympathy here for the simple reason that they are not in any way being violated. If, in a criminal case, an accused whose very life is at stake can be compelled to submit to DNA testing, we see no reason why, in this civil case, petitioner herein who does not face such dire consequences cannot be ordered to do the same. DNA paternity testing first came to prominence in the United States, where it yielded its first official results sometime in 1985. In the decade that followed, DNA rapidly found widespread 39 general acceptance. Several cases decided by various State Supreme Courts reflect the total assimilation of DNA testing into their rules of procedure and evidence. 40 The case of Wilson v. Lumb shows that DNA testing is so commonly accepted that, in some instances, ordering the procedure has become a ministerial act. The Supreme Court of St. Lawrence County, New York allowed a party who had already acknowledged paternity to subsequently challenge his prior acknowledgment. The Court pointed out that, under the law, specifically Section 516 of the New York Family Court Act, the Family Court examiner had the duty, 41 upon receipt of the challenge, to order DNA tests: 516-a. Acknowledgment of paternity. (a) An acknowledgment of paternity executed pursuant to section one hundred eleven-k of the social services law or section four thousand one hundred thirty-five-b of the public health law shall establish the paternity of and liability for the support of a child pursuant to this act. Such acknowledgment must be reduced to writing and filed pursuant to section four thousand one hundred thirty-five-b of the public health law with the registrar of the district in which the birth occurred and in which the birth certificate has been filed. No further judicial or administrative proceedings are required to ratify an unchallenged acknowledgment of paternity.

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(b) An acknowledgment of paternity executed pursuant to section one hundred eleven-k of the social services law or section four thousand one hundred thirty-five-b of the public health law may be rescinded by either signators filing of a petition with the court to vacate the acknowledgment within the earlier of sixty days of the date of signing the acknowledgment or the date of an administrative or a judicial proceeding (including a proceeding to establish a support order) relating to the child in which either signator is a party. For purposes of this section, the "date of an administrative or a judicial proceeding" shall be the date by which the respondent is required to answer the petition. After the expiration of sixty days of the execution of the acknowledgment, either signator may challenge the acknowledgment of paternity in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the party challenging the voluntary acknowledgment. Upon receiving a partys challenge to an acknowledgment, the court shall order genetic marker tests or DNA tests for the determination of the childs paternity and shall make a finding of paternity, if appropriate, in accordance with this article. Neither signators legal obligations, including the obligation for child support arising from the acknowledgment, may be suspended during the challenge to the acknowledgment except for good cause as the court may find. If a party petitions to rescind an acknowledgment and if the court determines that the alleged father is not the father of the child, or if the court finds that an acknowledgment is invalid because it was executed on the basis of fraud, duress, or material mistake of fact, the court shall vacate the acknowledgment of paternity and shall immediately provide a copy of the order to the registrar of the district in which the childs birth certificate is filed and also to the putative father registry operated by the department of social services pursuant to section three hundred seventy-two-c of the social services law. In addition, if the mother of the child who is the subject of the acknowledgment is in receipt of child support services pursuant to title six-A of article three of the social services law, the court shall immediately provide a copy of the order to the child support enforcement unit of the social services district that provides the mother with such services. (c) A determination of paternity made by any other state, whether established through the parents acknowledgment of paternity or through an administrative or judicial process, must be accorded full faith and credit, if and only if such acknowledgment meets the requirements set forth in section 452(a)(7) of the social security act. (emphasis supplied) 42 DNA testing also appears elsewhere in the New York Family Court Act: 532. Genetic marker and DNA tests; admissibility of records or reports of test results; costs of tests. a) The court shall advise the parties of their right to one or more genetic marker tests or DNA tests and, on the courts own motion or the motion of any party, shall order the mother, her child and the alleged father to submit to one or more genetic marker or DNA tests of a type generally acknowledged as reliable by an accreditation body designated by the secretary of the federal department of health and human services and performed by a laboratory approved by such an accreditation body and by the commissioner of health or by a duly qualified physician to aid in the determination of whether the alleged father is or is not the father of the child. No such test shall be ordered, however, upon a written finding by the court that it is not in the best interests

of the child on the basis of res judicata, equitable estoppel, or the presumption of legitimacy of a child born to a married woman. The record or report of the results of any such genetic marker or DNA test ordered pursuant to this section or pursuant to section one hundred eleven-k of the social services law shall be received in evidence by the court pursuant to subdivision (e) of rule forty-five hundred eighteen of the civil practice law and rules where no timely objection in writing has been made thereto and that if such timely objections are not made, they shall be deemed waived and shall not be heard by the court. If the record or report of the results of any such genetic marker or DNA test or tests indicate at least a ninety-five percent probability of paternity, the admission of such record or report shall create a rebuttable presumption of paternity, and shall establish, if unrebutted, the paternity of and liability for the support of a child pursuant to this article and article four of this act. (b) Whenever the court directs a genetic marker or DNA test pursuant to this section, a report made as provided in subdivision (a) of this section may be received in evidence pursuant to rule forty-five hundred eighteen of the civil practice law and rules if offered by any party. (c) The cost of any test ordered pursuant to subdivision (a) of this section shall be, in the first instance, paid by the moving party. If the moving party is financially unable to pay such cost, the court may direct any qualified public health officer to conduct such test, if practicable; otherwise, the court may direct payment from the funds of the appropriate local social services district. In its order of disposition, however, the court may direct that the cost of any such test be apportioned between the parties according to their respective abilities to pay or be assessed against the party who does not prevail on the issue of paternity, unless such party is financially unable to pay. (emphasis supplied) 43 In R.E. v. C.E.W., a decision of the Mississippi Supreme Court, DNA tests were used to prove that H.W., previously thought to be an offspring of the marriage between A.C.W. and C.E.W., was actually the child of R.E. with whom C.E.W. had, at the time of conception, maintained an adulterous relationship. 44 In Erie County Department of Social Services on behalf of Tiffany M.H. v. Greg G., the 4th Department of the New York Supreme Courts Appellate Division allowed G.G., who had been adjudicated as T.M.H.s father by default, to have the said judgment vacated, even after six years, once he had shown through a genetic marker test that he was not the childs father. In this case, G.G. only requested the tests after the Department of Social Services, six years after G.G. had been adjudicated as T.M.H.s father, sought an increase in his support obligation to her. 45 In Greco v. Coleman, the Michigan Supreme Court while ruling on the constitutionality of a provision of law allowing non-modifiable support agreements pointed out that it was because of the difficulty of determining paternity before the advent of DNA testing that such support agreements were necessary: As a result of DNA testing, the accuracy with which paternity can be proven has increased significantly since the parties in this lawsuit entered into their support agreement(current testing methods can determine the probability of paternity to 99.999999% accuracy). However, at the time the parties before us entered into the disputed agreement, proving paternity was a very significant obstacle to an illegitimate child's access to child support. The first reported results of modern DNA paternity testing did not occur until 1985. ("In fact, since its first reported results in 1985, DNA matching has progressed to 'general acceptance in less than a decade'"). Of course, while prior blood-testing methods could exclude some males from being the possible father of a

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child, those methods could not affirmatively pinpoint a particular male as being the father. Thus, when the settlement agreement between the present parties was entered in 1980, establishing paternity was a far more difficult ordeal than at present. Contested paternity actions at that time were often no more than credibility contests. Consequently, in every contested paternity action, obtaining child support depended not merely on whether the putative father was, in fact, the child's biological father, but rather on whether the mother could prove to a court of law that she was only sexually involved with one man--the putative father. Allowing parties the option of entering into private agreements in lieu of proving paternity eliminated the risk that the mother would be unable meet her burden of proof. It is worth noting that amendments to Michigans Paternity law have included the use of DNA 46 testing: 722.716 Pretrial proceedings; blood or tissue typing determinations as to mother, child, and alleged father; court order; refusal to submit to typing or identification profiling; qualifications of person conducting typing or identification profiling; compensation of expert; result of typing or identification profiling; filing summary report; objection; admissibility; presumption; burden of proof; summary disposition. Sec. 6. (1) In a proceeding under this act before trial, the court, upon application made by or on behalf of either party, or on its own motion, shall order that the mother, child, and alleged father submit to blood or tissue typing determinations, which may include, but are not limited to, determinations of red cell antigens, red cell isoenzymes, human leukocyte antigens, serum proteins, or DNA identification profiling, to determine whether the alleged father is likely to be, or is not, the father of the child. If the court orders a blood or tissue typing or DNA identification profiling to be conducted and a party refuses to submit to the typing or DNA identification profiling, in addition to any other remedies available, the court may do either of the following: (a) Enter a default judgment at the request of the appropriate party. (b) If a trial is held, allow the disclosure of the fact of the refusal unless good cause is shown for not disclosing the fact of refusal. (2) A blood or tissue typing or DNA identification profiling shall be conducted by a person accredited for paternity determinations by a nationally recognized scientific organization, including, but not limited to, the American association of blood banks. xxx xxx xxx (5) If the probability of paternity determined by the qualified person described in subsection (2) conducting the blood or tissue typing or DNA identification profiling is 99% or higher, and the DNA identification profile and summary report are admissible as provided in subsection (4), paternity is presumed. If the results of the analysis of genetic testing material from 2 or more persons indicate a probability of paternity greater than 99%, the contracting laboratory shall conduct additional genetic paternity testing until all but 1 of the putative fathers is eliminated, unless the dispute involves 2 or more putative fathers who have identical DNA. (6) Upon the establishment of the presumption of paternity as provided in subsection (5), either party may move for summary disposition under the court rules. this section does not abrogate the right of either party to child support from the date of birth of the child if applicable under section 7. (emphasis supplied)

In Rafferty v. Perkins, the Supreme Court of Mississippi ruled that DNA test results showing paternity were sufficient to overthrow the presumption of legitimacy of a child born during the course of a marriage: The presumption of legitimacy having been rebutted by the results of the blood test eliminating Perkins as Justin's father, even considering the evidence in the light most favorable to Perkins, we find that no reasonable jury could find that Easter is not Justin's father based upon the 99.94% probability of paternity concluded by the DNA testing. 48 In S.J.F. and J.C.F. v. R.C.W., the North Dakota Supreme Court upheld an order for genetic testing given by the Court of Appeals, even after trial on the merits had concluded without such order being given. Significantly, when J.C.F., the mother, first filed the case for paternity and support with the District Court, neither party requested genetic testing. It was only upon appeal from dismissal of the case that the appellate court remanded the case and ordered the testing, which the North Dakota Supreme Court upheld. 49 The case of Kohl v. Amundson, decided by the Supreme Court of South Dakota, demonstrated that even default judgments of paternity could be vacated after the adjudicated father had, through DNA testing, established non-paternity. In this case, Kohl, having excluded himself as the father of Amundsons child through DNA testing, was able to have the default judgment against him vacated. He then obtained a ruling ordering Amundson to reimburse him for the amounts withheld from his wages for child support. The Court said "(w)hile Amundson may have a remedy against the father of the child, she submit(ted) no authority that require(d) Kohl to support her child. Contrary to Amundson's position, the fact that a default judgment was entered, but subsequently vacated, (did) not foreclose Kohl from obtaining a money judgment for the amount withheld from his wages." 50 In M.A.S. v. Mississippi Dept. of Human Services, another case decided by the Supreme Court of Mississippi, it was held that even if paternity was established through an earlier agreed order of filiation, child support and visitation orders could still be vacated once DNA testing established someone other than the named individual to be the biological father. The Mississippi High Court 51 reiterated this doctrine in Williams v. Williams. The foregoing considered, we find no grave abuse of discretion on the part of the public respondent for upholding the orders of the trial court which both denied the petitioners motion to dismiss and ordered him to submit himself for DNA testing. Under Rule 65 of the 1997 Rules of Civil Procedure, the remedy of certiorari is only available "when any tribunal, board or officer has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy and adequate remedy 52 53 in the ordinary course of law." In Land Bank of the Philippines v. the Court of Appeals where we dismissed a special civil action for certiorari under Rule 65, we discussed at length the nature of such a petition and just what was meant by "grave abuse of discretion": Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, where the power is exercised in an arbitrary manner by reason of passion, prejudice, or personal hostility, and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. The special civil action for certiorari is a remedy designed for the correction of errors of jurisdiction and not errors of judgment. The raison detre for the rule is when a court exercises its jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being exercised when the error is committed. If it did, every error committed by a court would deprive it

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of its jurisdiction and every erroneous judgment would be a void judgment. In such a scenario, the administration of justice would not survive. Hence, where the issue or question involved affects the wisdom or legal soundness of the decisionnot the jurisdiction of the court to render said decisionthe same is beyond the province of a special civil action for certiorari. The proper recourse of the aggrieved party from a decision of the CA is a petition for review on certiorari under Rule 45 of the Revised Rules of Court. On the other hand, if the error subject of the recourse is one of jurisdiction, or the act complained of was perpetrated by a quasi-judicial officer or agency with grave abuse of discretion amounting to lack or excess of jurisdiction, the proper remedy available to the aggrieved party is a petition for certiorari under Rule 65 of the said Rules. (emphasis supplied) In the instant case, the petitioner has in no way shown any arbitrariness, passion, prejudice or personal hostility that would amount to grave abuse of discretion on the part of the Court of Appeals. The respondent court acted entirely within its jurisdiction in promulgating its decision and resolution, and any error made would have only been an error in judgment. As we have discussed, however, the decision of the respondent court, being firmly anchored in law and jurisprudence, was correct. Epilogue For too long, illegitimate children have been marginalized by fathers who choose to deny their existence. The growing sophistication of DNA testing technology finally provides a much needed equalizer for such ostracized and abandoned progeny. We have long believed in the merits of DNA testing and have repeatedly expressed as much in the past. This case comes at a perfect time when DNA testing has finally evolved into a dependable and authoritative form of evidence gathering. We therefore take this opportunity to forcefully reiterate our stand that DNA testing is a valid means of determining paternity. WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The Court of Appeals decision dated January 28, 2004 in CA-G.R. SP No. 80961 is hereby AFFIRMED in toto. Costs against petitioner. SO ORDERED. 17 Art. 283. In any of the following cases, the father is obliged to recognize the child as his natural child: (1) In cases of rape, abduction or seduction, when the period of the offense coincides more or less with that of the conception; (2) When the child is in continuous possession of status of a child of the alleged father by the direct acts of the latter or of his family; (3) When the child was conceived during the time when the mother cohabited with the supposed father; (4) When the child has in his favor any evidence or proof that the defendant is his father. (5) 18 Art. 265. The filiation of legitimate children is proved by the record of birth appearing in the Civil Register, or by an authentic document or a final judgment. 19 SECTION 1. Venue. Where judicial approval of a voluntary recognition of a minor natural child is required, such child or his parents shall obtain the same by filing a petition to that effect with the Court of First Instance of the province in which the child resides. In the City of Manila, the petition shall be filed in the Juvenile and Domestic Relations Court.

G.R. No. 157037 May 20, 2004 ROSALINA P. ECETA, petitioner, vs. MA. THERESA VELL LAGURA ECETA, respondent. DECISION YNARES-SANTIAGO, J.: 1 This petition for review on certiorari assails the Decision of the Court of Appeals in CA-G.R. CV No. 50449 which affirmed with modification the trial courts ruling that respondent Maria Theresa Vell Lagura Eceta is entitled to one-eight (1/8) portion of the disputed property. The antecedent facts are as follows: Petitioner Rosalina P. Vda. De Eceta was married to Isaac Eceta sometime in 1926. During the subsistence of their marriage, they begot a son, Vicente. The couple acquired several properties, among which is the disputed property located at Stanford, Cubao, Quezon City covered by Transfer Certificate of Title No. 61036. Isaac died in 1967 leaving behind Rosalina and Vicente as his compulsory heirs. In 1977, Vicente died. During his lifetime, however, he sired Maria Theresa, an illegitimate daughter. Thus at the time of his death, his compulsory heirs were his mother, Rosalina, and illegitimate child, Maria Theresa. In 1991, Maria Theresa filed a case before the Regional Trial Court of Quezon City, Branch 218, for 2 "Partition and Accounting with Damages" against Rosalina alleging that by virtue of her fathers death, she became Rosalinas co-heir and co-owner of the Cubao property. The case was docketed as Civil Case No. Q-91-8922. In her answer, Rosalina alleged that the property is paraphernal in nature and thus belonged to her exclusively. During the pre-trial conference, the parties entered into a stipulation of facts wherein they both 3 admitted their relationship to one another, i.e., that Rosalina is Maria Theresas grandmother. After trial on the merits, the court a quo rendered judgment, the dispositive portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered as follows: a) Theresa Eceta and Rosalina Eceta are the only surviving co-heirs and co-owners over the parcel of land and improvements thereon subject of this case; b) Maria Theresa Eceta is entitled to one fourth share of said property; c) Rosalina Eceta is ordered to account for the value corresponding to the one-fourth undivided share of Theresa Eceta in the monthly rentals of the property with interest and must commence from the filing of this case; d) Parties are ordered within fifteen days from receipt of this decision to amicably agree upon a written partition and to submit the same for approval, parties shall appoint a commissioner to effect said partition of the property between the parties; 4 e) The counterclaim by defendant Rosalina is hereby dismissed. Rosalina appealed the decision to the Court of Appeals, which affirmed with modification the trial courts ruling, thus: WHEREFORE, premises considered, the appealed Decision is hereby AFFIRMED subject to the MODIFICATION that the one-fourth (1/4) share erroneously decreed to Appellee is hereby REDUCED to one-eight (1/8) undivided share of the entire disputed property, covered by TCT No. 61036, in accordance with law.

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Her motion for reconsideration having been denied, Rosalina is now before us by way of petition for review wherein she submits the following issues: a. Whether the certified xerox copy from a xerox copy of the certificate of live birth (Exhibit A) is competent evidence to prove the alleged filiation of the respondent as an "illegitimate daughter" of her alleged father Vicente Eceta. b. Whether the admission made by petitioner that respondent is her granddaughter is enough to prove respondents filiation with Vicente Eceta, the only son of petitioner. c. Whether the action for recognition has already prescribed. The petition has no merit. We note Rosalinas attempt to mislead the Court by representing that this case is one for 5 compulsory recognition, partition and accounting with damages. Notably, what was filed and tried before the trial court and the Court of Appeals is one for partition and accounting with damages only. The filiation, or compulsory recognition by Vicente Eceta of Maria Theresa, was never put in issue. In fact, both parties have already agreed and admitted, as duly noted in the 6 trial courts pre-trial order, that Maria Theresa is Rosalinas granddaughter. Notwithstanding, Maria Theresa successfully established her filiation with Vicente by presenting a 7 duly authenticated birth certificate. Vicente himself signed Maria Theresas birth certificate thereby acknowledging that she is his daughter. By this act alone, Vicente is deemed to have acknowledged his paternity over Maria Theresa, thus: The filiation of illegitimate children, like legitimate children, is established by (1) the record of birth appearing in the civil register or a final judgment; or (2) an admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence thereof, filiation shall be proved by (1) the open and continuous possession of the status of a legitimate child; or (2) any other means allowed by the Rules of Court and special laws. The due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing is, in itself, a consummated act of acknowledgement of the child, and no further court action is required. In fact, any authentic writing is treated not just a ground for compulsory recognition; it is in itself a voluntary recognition that does not 8 require a separate action for judicial approval. In view of the foregoing, we find no necessity to discuss the other issues submitted. WHEREFORE, the petition for review on certiorari is DENIED. The decision of the Court of Appeals in CA-G.R. CV No. 50449, which affirmed with modification the decision of the Regional Trial Court of Quezon City, Branch 218 in Civil Case No. Q-91-8922, is AFFIRMED in toto. SO ORDERED.

G.R. NO. 155409 June 8, 2007 VIRGILIO MAQUILAN, petitioner, vs. DITA MAQUILAN, respondent. DECISION AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing 1 the Decision dated August 30, 2002 promulgated by the Court of Appeals (CA) in CA-G.R. SP No. 69689, which affirmed the Judgment on Compromise Agreement dated January 2, 2002 of the Regional Trial Court (RTC), Branch 3, Nabunturan, Compostela Valley, and the RTC Orders dated January 21, 2002 and February 7, 2002 (ORDERS) in Civil Case No. 656. The facts of the case, as found by the CA, are as follows: Herein petitioner and herein private respondent are spouses who once had a blissful married life and out of which were blessed to have a son. However, their once sugar coated romance turned bitter when petitioner discovered that private respondent was having illicit sexual affair with her paramour, which thus, prompted the petitioner to file a case of adultery against private respondent and the latters paramour. Consequently, both the private respondent and her paramour were convicted of the crime charged and were sentenced to suffer an imprisonment ranging from one (1) year, eight (8) months, minimum of prision correccional as minimum penalty, to three (3) years, six (6) months and twenty one (21) days, medium of prision correccional as maximum penalty. Thereafter, private respondent, through counsel, filed a Petition for Declaration of Nullity of Marriage, Dissolution and Liquidation of Conjugal Partnership of Gains and Damages on June 15, 2001 with the Regional Trial Court, Branch 3 of Nabunturan, Compostela Valley, docketed as Civil Case No. 656, imputing psychological incapacity on the part of the petitioner. During the pre-trial of the said case, petitioner and private respondent entered into a COMPROMISE AGREEMENT in the following terms, to wit: 1. In partial settlement of the conjugal partnership of gains, the parties agree to the following: a. P500,000.00 of the money deposited in the bank jointly in the name of the spouses shall be withdrawn and deposited in favor and in trust of their common child, Neil Maquilan, with the deposit in the joint account of the parties. The balance of such deposit, which presently stands at P1,318,043.36, shall be withdrawn and divided equally by the parties; b. The store that is now being occupied by the plaintiff shall be allotted to her while the bodega shall be for the defendant. The defendant shall be paid the sum of P50,000.00 as his share in the stocks of the store in full settlement thereof. The plaintiff shall be allowed to occupy the bodega until the time the owner of the lot on which it stands shall construct a building thereon; c. The motorcycles shall be divided between them such that the Kawasaki shall be owned by the plaintiff while the Honda Dream shall be for the defendant; d. The passenger jeep shall be for the plaintiff who shall pay the defendant the sum of P75,000.00 as his share thereon and in full settlement thereof; e. The house and lot shall be to the common child. 2. This settlement is only partial, i.e., without prejudice to the litigation of other conjugal properties that have not been mentioned; xxxx The said Compromise Agreement was given judicial imprimatur by the respondent judge in the 2 assailed Judgment On Compromise Agreement, which was erroneously dated January 2, 2002. However, petitioner filed an Omnibus Motion dated January 15, 2002, praying for the repudiation of the Compromise Agreement and the reconsideration of the Judgment on Compromise Agreement by the respondent judge on the grounds that his previous lawyer did not intelligently and judiciously apprise him of the consequential effects of the Compromise Agreement.

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The respondent Judge in the assailed Order dated January 21, 2002, denied the aforementioned Omnibus Motion. Displeased, petitioner filed a Motion for Reconsideration of the aforesaid Order, but the same was 3 denied in the assailed Order dated February 7, 2002. (Emphasis supplied) The petitioner filed a Petition for Certiorari and Prohibition with the CA under Rule 65 of the Rules of Court claiming that the RTC committed grave error and abuse of discretion amounting to lack or excess of jurisdiction (1) in upholding the validity of the Compromise Agreement dated January 11, 2002; (2) when it held in its Order dated February 7, 2002 that the Compromise Agreement was made within the cooling-off period; (3) when it denied petitioners Motion to Repudiate Compromise Agreement and to Reconsider Its Judgment on Compromise Agreement; and (4) when it conducted the proceedings without the appearance and participation of the Office of the 4 Solicitor General and/or the Provincial Prosecutor. On August 30, 2002, the CA dismissed the Petition for lack of merit. The CA held that the conviction of the respondent of the crime of adultery does not ipso facto disqualify her from sharing in the conjugal property, especially considering that she had only been sentenced with the penalty of prision correccional, a penalty that does not carry the accessory penalty of civil interdiction which deprives the person of the rights to manage her property and to dispose of such property inter vivos; that Articles 43 and 63 of the Family Code, which pertain to the effects of a nullified marriage and the effects of legal separation, respectively, do not apply, considering, too, that the Petition for the Declaration of the Nullity of Marriage filed by the respondent invoking Article 36 of the Family Code has yet to be decided, and, hence, it is premature to apply Articles 43 and 63 of the Family Code; that, although adultery is a ground for legal separation, nonetheless, Article 63 finds no application in the instant case since no petition to that effect was filed by the petitioner against the respondent; that the spouses voluntarily separated their property through their Compromise Agreement with court approval under Article 134 of the Family Code; that the Compromise Agreement, which embodies the voluntary separation of property, is valid and binding in all respects because it had been voluntarily entered into by the parties; that, furthermore, even if it were true that the petitioner was not duly informed by his previous counsel about the legal effects of the Compromise Agreement, this point is untenable since the mistake or negligence of the lawyer binds his client, unless such mistake or negligence amounts to gross negligence or deprivation of due process on the part of his client; that these exceptions are not present in the instant case; that the Compromise Agreement was plainly worded and written in simple language, which a person of ordinary intelligence can discern the consequences thereof, hence, petitioners claim that his consent was vitiated is highly incredible; that the Compromise Agreement was made during the existence of the marriage of the parties since it was submitted during the pendency of the petition for declaration of nullity of marriage; that the application of Article 2035 of the Civil Code is misplaced; that the cooling-off period under Article 58 of the Family Code has no bearing on the validity of the Compromise Agreement; that the Compromise Agreement is not contrary to law, morals, good customs, public order, and public policy; that this agreement may not be later disowned simply because of a change of mind; that the presence of the Solicitor General or his deputy is not indispensable to the execution and validity of the Compromise Agreement, since the purpose of his presence is to curtail any collusion between the parties and to see to it that evidence is not fabricated, and, with this in mind, nothing in the Compromise Agreement touches on the very merits of the case of declaration of nullity of marriage for the court to be wary of any possible collusion; and, finally, that the Compromise Agreement is merely an agreement between the parties to separate their

conjugal properties partially without prejudice to the outcome of the pending case of declaration of nullity of marriage. Hence, herein Petition, purely on questions of law, raising the following issues: I. WHETHER OF NOT A SPOUSE CONVICTED OF EITHER CONCUBINAGE OR ADULTERY, CAN STILL SHARE IN THE CONJUGAL PARTNERSHIP; II WHETHER OR NOT A COMPROMISE AGREEMENT ENTERED INTO BY SPOUSES, ONE OF WHOM WAS CONVICTED OF ADULTERY, GIVING THE CONVICTED SPOUSE A SHARE IN THE CONJUGAL PROPERTY, VALID AND LEGAL; III WHETHER OR NOT A JUDGMENT FOR ANNULMENT AND LEGAL SEPARATION IS A PRE-REQUISITE BEFORE A SPOUSE CONVICTED OF EITHER CONCUBINAGE OR ADULTERY, BE DISQUALIFIED AND PROHIBITED FROM SHARING IN THE CONJUGAL PROPERTY; IV WHETHER OR NOT THE DISQUALIFICATION OF A CONVICTED SPOUSE OF ADULTERY FROM 5 SHARING IN A CONJUGAL PROPERTY, CONSTITUTES CIVIL INTERDICTION. The petitioner argues that the Compromise Agreement should not have been given judicial imprimatur since it is against law and public policy; that the proceedings where it was approved is null and void, there being no appearance and participation of the Solicitor General or the Provincial Prosecutor; that it was timely repudiated; and that the respondent, having been convicted of adultery, is therefore disqualified from sharing in the conjugal property. The Petition must fail. The essential question is whether the partial voluntary separation of property made by the spouses pending the petition for declaration of nullity of marriage is valid. First. The petitioner contends that the Compromise Agreement is void because it circumvents the law that prohibits the guilty spouse, who was convicted of either adultery or concubinage, from sharing in the conjugal property. Since the respondent was convicted of adultery, the petitioner 6 argues that her share should be forfeited in favor of the common child under Articles 43(2) and 7 63 of the Family Code. To the petitioner, it is the clear intention of the law to disqualify the spouse convicted of adultery from sharing in the conjugal property; and because the Compromise Agreement is void, it never became final and executory. 8 Moreover, the petitioner cites Article 2035 of the Civil Code and argues that since adultery is a ground for legal separation, the Compromise Agreement is therefore void. These arguments are specious. The foregoing provisions of the law are inapplicable to the instant case. Article 43 of the Family Code refers to Article 42, to wit: 9 Article 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio. A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed.

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where a subsequent marriage is terminated because of the reappearance of an absent spouse; while Article 63 applies to the effects of a decree of legal separation. The present case involves a proceeding where the nullity of the marriage is sought to be declared under the ground of psychological capacity. Article 2035 of the Civil Code is also clearly inapplicable. The Compromise Agreement partially divided the properties of the conjugal partnership of gains between the parties and does not deal with the validity of a marriage or legal separation. It is not among those that are expressly prohibited by Article 2035. Moreover, the contention that the Compromise Agreement is tantamount to a circumvention of the law prohibiting the guilty spouse from sharing in the conjugal properties is misplaced. Existing law and jurisprudence do not impose such disqualification. Under Article 143 of the Family Code, separation of property may be effected voluntarily or for sufficient cause, subject to judicial approval. The questioned Compromise Agreement which was judicially approved is exactly such a separation of property allowed under the law. This conclusion holds true even if the proceedings for the declaration of nullity of marriage was still pending. However, the Court must stress that this voluntary separation of property is subject to the rights of all creditors of the conjugal partnership of gains and other persons with pecuniary interest pursuant to Article 136 of the Family Code. Second. Petitioners claim that since the proceedings before the RTC were void in the absence of the participation of the provincial prosecutor or solicitor, the voluntary separation made during the pendency of the case is also void. The proceedings pertaining to the Compromise Agreement involved the conjugal properties of the spouses. The settlement had no relation to the questions surrounding the validity of their marriage. Nor did the settlement amount to a collusion between the parties. Article 48 of the Family Code states: Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. (Emphasis supplied) Section 3(e) of Rule 9 of the 1997 Rules of Court provides: SEC. 3. Default; declaration of.- x x x x xxxx (e) Where no defaults allowed. If the defending party in action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. (Emphasis supplied Truly, the purpose of the active participation of the Public Prosecutor or the Solicitor General is to ensure that the interest of the State is represented and protected in proceedings for annulment and declaration of nullity of marriages by preventing collusion between the parties, or the 10 fabrication or suppression of evidence. While the appearances of the Solicitor General and/or the Public Prosecutor are mandatory, the failure of the RTC to require their appearance does not per se nullify the Compromise Agreement. This Court fully concurs with the findings of the CA: x x x. It bears emphasizing that the intendment of the law in requiring the presence of the Solicitor General and/or State prosecutor in all proceedings of legal separation and annulment or declaration of nullity of marriage is to curtail or prevent any possibility of collusion between the

parties and to see to it that their evidence respecting the case is not fabricated. In the instant case, there is no exigency for the presence of the Solicitor General and/or the State prosecutor because as already stated, nothing in the subject compromise agreement touched into the very merits of the case of declaration of nullity of marriage for the court to be wary of any possible collusion between the parties. At the risk of being repetiti[ve], the compromise agreement pertains merely to an agreement between the petitioner and the private respondent to separate their conjugal properties partially without prejudice to the outcome of the pending case of 11 declaration of nullity of marriage. Third. The conviction of adultery does not carry the accessory of civil interdiction. Article 34 of the Revised Penal Code provides for the consequences of civil interdiction: Art. 34. Civil Interdiction. Civil interdiction shall deprive the offender during the time of his sentence of the rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of the right to manage his property and of the right to dispose of such property by any act or any conveyance inter vivos. Under Article 333 of the same Code, the penalty for adultery is prision correccional in its medium and maximum periods. Article 333 should be read with Article 43 of the same Code. The latter provides: Art. 43. Prision correccional Its accessory penalties. The penalty of prision correccional shall carry with it that of suspension from public office, from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage, if the duration of said imprisonment shall exceed eighteen months. The offender shall suffer the disqualification provided in this article although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. It is clear, therefore, and as correctly held by the CA, that the crime of adultery does not carry the accessory penalty of civil interdiction which deprives the person of the rights to manage her property and to dispose of such property inter vivos. Fourth. Neither could it be said that the petitioner was not intelligently and judiciously informed of the consequential effects of the compromise agreement, and that, on this basis, he may repudiate the Compromise Agreement. The argument of the petitioner that he was not duly informed by his previous counsel about the legal effects of the voluntary settlement is not convincing. Mistake or vitiation of consent, as now claimed by the petitioner as his basis for 12 repudiating the settlement, could hardly be said to be evident. In Salonga v. Court of Appeals, this Court held: [I]t is well-settled that the negligence of counsel binds the client. This is based on the rule that any act performed by a lawyer within the scope of his general or implied authority is regarded as an act of his client. Consequently, the mistake or negligence of petitioners' counsel may result in the rendition of an unfavorable judgment against them. Exceptions to the foregoing have been recognized by the Court in cases where reckless or gross negligence of counsel deprives the client of due process of law, or when its application "results in 13 the outright deprivation of one's property through a technicality." x x x x None of these exceptions has been sufficiently shown in the present case. WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals is AFFIRMED with MODIFICATION that the subject Compromise Agreement is VALID without prejudice to the rights of all creditors and other persons with pecuniary interest in the properties of the conjugal partnership of gains. SO ORDERED.

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Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects: xxxx (2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse; x x x x (emphasis supplied) 7 Article 63 reads: Art. 63. The decree of legal separation shall have the following effects: xxxx (2) The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2); x x x x (emphasis supplied) 8 Article 2035 reads: Art. 2035. No compromise upon the following questions shall be valid: (1) The civil status of persons; (2) The validity of a marriage or a legal separation; (3) Any ground for legal separation; (4) Future support; (5) The jurisdiction of courts; (6) Future legitime. (1814a) (emphasis supplied)
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Article 41 reads: Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Articles 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.

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