ADOPTION

June 3, 1992
MACARIO TAMARGO, CELSO TAMARGO and AURELIA TAMARGO, petitioners,
vs.
HON. COURT OF APPEALS, THE HON. ARISTON L. RUBIO, RTC Judge, Branch 20, Vigan, Ilocos
Sur; VICTOR BUNDOC; and CLARA BUNDOC, respondents.

FELICIANO, J.:
On 20 October 1982, Adelberto Bundoc, then a minor of 10 years of age, shot Jennifer Tamargo with an
air rifle causing injuries which resulted in her death. Accordingly, a civil complaint for damages was filed
with the Regional Trial Court, Branch 20, Vigan, Ilocos Sur, docketed as Civil Case No. 3457-V, by
petitioner Macario Tamargo, Jennifer's adopting parent, and petitioner spouses Celso and Aurelia
Tamargo, Jennifer's natural parents against respondent spouses Victor and Clara Bundoc, Adelberto's
natural parents with whom he was living at the time of the tragic incident. In addition to this case for
damages, a criminal information or Homicide through Reckless Imprudence was filed [Criminal Case No.
1722-V] against Adelberto Bundoc. Adelberto, however, was acquitted and exempted from criminal liability
on the ground that he had acted without discernment.
Prior to the incident, or on 10 December 1981, the spouses Sabas and Felisa Rapisura had filed a
petition to adopt the minor Adelberto Bundoc in Special Proceedings No. 0373-T before the then Court of
First Instance of Ilocos Sur. This petition for adoption was granted on, 18 November 1982, that
is, after Adelberto had shot and killed Jennifer.
In their Answer, respondent spouses Bundoc, Adelberto's natural parents, reciting the result of the
foregoing petition for adoption, claimed that not they, but rather the adopting parents, namely the spouses
Sabas and Felisa Rapisura, were indispensable parties to the action since parental authority had shifted
to the adopting parents from the moment the successful petition for adoption was filed.
Petitioners in their Reply contended that since Adelberto Bundoc was then actually living with his natural
parents, parental authority had not ceased nor been relinquished by the mere filing and granting of a
petition for adoption.
The trial court on 3 December 1987 dismissed petitioners' complaint, ruling that respondent natural
parents of Adelberto indeed were not indispensable parties to the action.
Petitioners received a copy of the trial court's Decision on 7 December 1987. Within the 15-day
reglementary period, or on 14 December 1987, petitioners filed a motion for reconsideration followed by a
supplemental motion for reconsideration on 15 January 1988. It appearing, however, that the motions
failed to comply with Sections 4 and 5 of Rule 15 of the Revised Rules of Court that notice of the
motion shall be given to all parties concerned at least three (3) days before the hearing of said motion;
and that said notice shall state the time and place of hearing both motions were denied by the trial
court in an Order dated 18 April 1988. On 28 April 1988, petitioners filed a notice of appeal. In its Order
dated 6 June 1988, the trial court dismissed the notice at appeal, this time ruling that the notice had been
filed beyond the 15-day reglementary period ending 22 December 1987.

Petitioners went to the Court of Appeals on a petition for mandamus and certiorari questioning the trial
court's Decision dated 3 December 1987 and the Orders dated 18 April 1988 and 6 June 1988, The Court
of Appeals dismissed the petition, ruling that petitioners had lost their right to appeal.
In the present Petition for Review, petitioners once again contend that respondent spouses Bundoc are
the indispensable parties to the action for damages caused by the acts of their minor child, Adelberto
Bundoc. Resolution of this Petition hinges on the following issues: (1) whether or not petitioners,
notwithstanding loss of their right to appeal, may still file the instant Petition; conversely, whether the
Court may still take cognizance of the case even through petitioners' appeal had been filed out of time;
and (2) whether or not the effects of adoption, insofar as parental authority is concerned may be given
retroactive effect so as to make the adopting parents the indispensable parties in a damage case filed
against their adopted child, for acts committed by the latter, when actual custody was yet lodged with the
biological parents.
1. It will be recalled that, petitioners' motion (and supplemental motion) for reconsideration filed before the
trial court, not having complied with the requirements of Section 13, Rule 41, and Section 4, Rule 15, of
the Revised Rules of Court, were considered pro forma and hence did not interrupt and suspend the
reglementary period to appeal: the trial court held that the motions, not having contained a notice of time
and place of hearing, had become useless pieces of paper which did not interrupt the reglementary
period. 1 As in fact repeatedly held by this Court, what is mandatory is the service of the motion on the
opposing counsel indicating the time and place of hearing. 2
In view, however, of the nature of the issue raised in the instant petition, and in order that substantial
justice may be served, the Court, invoking its right to suspend the application of technical rules to prevent
manifest injustice, elects to treat the notice of appeal as having been seasonably filed before the trial
court, and the motion (and supplemental motion) for reconsideration filed by petitioner in the trial court as
having interrupted the reglementary period for appeal. As the Court held in Gregorio v. Court of Appeals: 3
Dismissal of appeal; purely on technical grounds is frowned upon where the policy of the courts is
to encourage hearings of appeal on their merits. The rules of procedure ought not be applied in a
very rigid technical sense, rules of procedure are used only to help secure not override,
substantial justice. if d technical and rigid enforcement of the rules is made their aim would be
defeated. 4
2. It is not disputed that Adelberto Bundoc's voluntary act of shooting Jennifer Tamargo with an air rifle
gave rise to a cause of action on quasi-delict against him. As Article 2176 of the Civil Code provides:
Whoever by act or omission causes damage to another, there being fault or negligence, is obliged
to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict . . .
Upon the other hand, the law imposes civil liability upon the father and, in case of his death or incapacity,
the mother, for any damages that may be caused by a minor child who lives with them. Article 2180 of the
Civil Code reads:
The obligation imposed by article 2176 is demandable not only for one's own acts or omissions,
but also for those of persons for whom one is responsible.
The father and, in case of his death or incapacity, the mother, are responsible for the damages
caused by the minor children who live in their company.

xxx xxx xxx

The responsibility treated of in this Article shall cease when the person herein mentioned
prove that they observed all the diligence of a good father of a family to prevent damage.
(Emphasis supplied)
This principle of parental liability is a species of what is frequently designated as vicarious liability, or the
doctrine of "imputed negligence" under Anglo-American tort law, where a person is not only liable for torts
committed by himself, but also for torts committed by others with whom he has a certain relationship and
for whom he is responsible. Thus, parental liability is made a natural or logical consequence of the duties
and responsibilities of parents their parental authority which includes the instructing, controlling and
disciplining of the child. 5 The basis for the doctrine of vicarious liability was explained by the Court
in Cangco v. Manila Railroad Co. 6 in the following terms:
With respect to extra-contractual obligation arising from negligence, whether of act or omission, it
is competent for the legislature to elect and our Legislature has so elected to limit such
liability to cases in which the person upon whom such an obligation is imposed is morally
culpable or, on the contrary, for reasons of public policy. to extend that liability, without regard to
the lack of moral culpability, so as to include responsibility for the negligence of those persons
whose acts or omissions are imputable, by a legal fiction, to others who are in a position to
exercise an absolute or limited control over them. The legislature which adopted our Civil Code
has elected to limit extra-contractual liability with certain well-defined exceptions to cases in
which moral culpability can be directly imputed to the persons to be charged. This moral
responsibility may consist in having failed to exercise due care in one's own acts, or in having
failed to exercise due care in the selection and control of one's agent or servants, or in the control
of persons who, by reasons of their status, occupy a position of dependency with respect to the
person made liable for their conduct. 7(Emphasis Supplied)
The civil liability imposed upon parents for the torts of their minor children living with them, may be seen
to be based upon the parental authority vested by the Civil Code upon such parents. The civil law
assumes that when an unemancipated child living with its parents commits a tortious acts, the parents
were negligent in the performance of their legal and natural duty closely to supervise the child who is in
their custody and control. Parental liability is, in other words, anchored upon parental authority coupled
with presumed parental dereliction in the discharge of the duties accompanying such authority. The
parental dereliction is, of course, only presumed and the presumption can be overtuned under Article
2180 of the Civil Code by proof that the parents had exercised all the diligence of a good father of a family
to prevent the damage.
In the instant case, the shooting of Jennifer by Adelberto with an air rifle occured when parental authority
was still lodged in respondent Bundoc spouses, the natural parents of the minor Adelberto. It would thus
follow that the natural parents who had then actual custody of the minor Adelberto, are the indispensable
parties to the suit for damages.
The natural parents of Adelberto, however, stoutly maintain that because a decree of adoption was issued
by the adoption court in favor of the Rapisura spouses, parental authority was vested in the latter as
adopting parents as of the time of the filing of the petition for adoption that is, before Adelberto had shot
Jennifer which an air rifle. The Bundoc spouses contend that they were therefore free of any parental
responsibility for Adelberto's allegedly tortious conduct.
Respondent Bundoc spouses rely on Article 36 of the Child and Youth Welfare Code 8 which reads as
follows:

Art. 36. Decree of Adoption. If, after considering the report of the Department of Social
Welfare or duly licensed child placement agency and the evidence submitted before it,
the court is satisfied that the petitioner is qualified to maintain, care for, and educate the
child, that the trial custody period has been completed, and that the best interests of the
child will be promoted by the adoption, a decree of adoption shall be entered, which shall
be effective he date the original petition was filed. The decree shall state the name by
which the child is thenceforth to be known. (Emphasis supplied)
The Bundoc spouses further argue that the above Article 36 should be read in relation to Article
39 of the same Code:
Art. 39. Effect of Adoption. The adoption shall:
xxx xxx xxx
(2) Dissolve the authority vested in the natural parents, except where the adopter is the
spouse of the surviving natural parent;
xxx xxx xxx
(Emphasis supplied)
and urge that their Parental authority must be deemed to have been dissolved as of the time the Petition
for adoption was filed.
The Court is not persuaded. As earlier noted, under the Civil Code, the basis of parental liability for the
torts of a minor child is the relationship existing between the parents and the minor child living with them
and over whom, the law presumes, the parents exercise supervision and control. Article 58 of the Child
and Youth Welfare Code, re-enacted this rule:
Article 58 Torts Parents and guardians are responsible for the damage caused by the
child under their parental authority in accordance with the civil Code. (Emphasis supplied)
Article 221 of the Family Code of the Philippines 9 has similarly insisted upon the requisite that the child,
doer of the tortious act, shall have beer in the actual custody of the parents sought to be held liable for the
ensuing damage:
Art. 221. Parents and other persons exercising parental authority shall be civilly liable for
the injuries and damages caused by the acts or omissions of their unemancipated
children living in their company and under their parental authority subject to the
appropriate defenses provided by law. (Emphasis supplied)
We do not believe that parental authority is properly regarded as having been retroactively transferred to
and vested in the adopting parents, the Rapisura spouses, at the time the air rifle shooting happened. We
do not consider that retroactive effect may be giver to the decree of adoption so as to impose a liability
upon the adopting parents accruing at a time when adopting parents had no actual or physically custody
over the adopted child. Retroactive affect may perhaps be given to the granting of the petition for adoption
where such is essential to permit the accrual of some benefit or advantage in favor of the adopted child.
In the instant case, however, to hold that parental authority had been retroactively lodged in the Rapisura
spouses so as to burden them with liability for a tortious act that they could not have foreseen and which

they could not have prevented (since they were at the time in the United States and had no physical
custody over the child Adelberto) would be unfair and unconscionable. Such a result, moreover, would be
inconsistent with the philosophical and policy basis underlying the doctrine of vicarious liability. Put a little
differently, no presumption of parental dereliction on the part of the adopting parents, the Rapisura
spouses, could have arisen since Adelberto was not in fact subject to their control at the time the tort was
committed.
Article 35 of the Child and Youth Welfare Code fortifies the conclusion reached above. Article 35 provides
as follows:
Art. 35. Trial Custody. No petition for adoption shall be finally granted unless and until
the adopting parents are given by the courts a supervised trial custody period of at least
six months to assess their adjustment and emotional readiness for the legal
union. During the period of trial custody, parental authority shall be vested in the adopting
parents. (Emphasis supplied)
Under the above Article 35, parental authority is provisionally vested in the adopting parents during the
period of trial custody, i.e., before the issuance of a decree of adoption, precisely because the adopting
parents are given actual custody of the child during such trial period. In the instant case, the trial custody
period either had not yet begun or bad already been completed at the time of the air rifle shooting; in any
case, actual custody of Adelberto was then with his natural parents, not the adopting parents.
Accordingly, we conclude that respondent Bundoc spouses, Adelberto's natural parents, were
indispensable parties to the suit for damages brought by petitioners, and that the dismissal by the trial
court of petitioners' complaint, the indispensable parties being already before the court, constituted grave
abuse of discretion amounting to lack or excess of jurisdiction.
WHEREFORE, premises considered, the Petition for Review is hereby GRANTED DUE COURSE and
the Decision of the Court of Appeals dated 6 September 1988, in C.A.-G.R. No. SP-15016 is hereby
REVERSED and SET ASIDE. Petitioners' complaint filed before the trial court is hereby REINSTATED
and this case is REMANDED to that court for further proceedings consistent with this Decision. Costs
against respondent Bundoc spouses. This Decision is immediately executory.
SO ORDERED.

July 14, 2003

ISABELITA S. LAHOM, petitioner,
vs.
JOSE MELVIN SIBULO (previously referred to as "DR. MELVIN S. LAHOM"), respondent.
VITUG, J.:

The bliss of marriage and family would be to most less than complete without children. The realization
could have likely prodded the spouses Dr. Diosdado Lahom and Isabelita Lahom to take into their care
Isabelita's nephew Jose Melvin Sibulo and to bring him up as their own. At the tender age of two, Jose
Melvin enjoyed the warmth, love and support of the couple who treated the child like their own. Indeed, for
years, Dr. and Mrs. Lahom fancied on legally adopting Jose Melvin. Finally, in 1971, the couple decided to
file a petition for adoption. On 05 May 1972, an order granting the petition was issued that made all the
more intense than before the feeling of affection of the spouses for Melvin. In keeping with the court order,
the Civil Registrar of Naga City changed the name "Jose Melvin Sibulo" to "Jose Melvin Lahom."
A sad turn of events came many years later. Eventually, in December of 1999, Mrs. Lahom commenced a
petition to rescind the decree of adoption before the Regional Trial Court (RTC), Branch 22, of Naga City.
In her petition, she averred
"7. That x x x despite the proddings and pleadings of said spouses, respondent refused to change
his surname from Sibulo to Lahom, to the frustrations of petitioner particularly her husband until
the latter died, and even before his death he had made known his desire to revoke respondent's
adoption, but was prevented by petitioner's supplication, however with his further request upon
petitioner to give to charity whatever properties or interest may pertain to respondent in the future.
xxx

xxx

xxx

"10. That respondent continued using his surname Sibulo to the utter disregard of the feelings of
herein petitioner, and his records with the Professional Regulation Commission showed his name
as Jose Melvin M. Sibulo originally issued in 1978 until the present, and in all his dealings and
activities in connection with his practice of his profession, he is Jose Melvin M. Sibulo.
xxx

xxx

xxx

"13. That herein petitioner being a widow, and living alone in this city with only her household
helps to attend to her, has yearned for the care and show of concern from a son, but respondent
remained indifferent and would only come to Naga to see her once a year.
"14. That for the last three or four years, the medical check-up of petitioner in Manila became
more frequent in view of a leg ailment, and those were the times when petitioner would need
most the care and support from a love one, but respondent all the more remained callous and
utterly indifferent towards petitioner which is not expected of a son.
"15. That herein respondent has recently been jealous of petitioner's nephews and nieces
whenever they would find time to visit her, respondent alleging that they were only motivated by
their desire for some material benefits from petitioner.
"16. That in view of respondent's insensible attitude resulting in a strained and uncomfortable
relationship between him and petitioner, the latter has suffered wounded feelings, knowing that
after all respondent's only motive to his adoption is his expectancy of his alleged rights over the
properties of herein petitioner and her late husband, clearly shown by his recent filing of Civil
Case No. 99-4463 for partition against petitioner, thereby totally eroding her love and affection
towards respondent, rendering the decree of adoption, considering respondent to be the child of
petitioner, for all legal purposes, has been negated for which reason there is no more basis for its
existence, hence this petition for revocation," 1

Prior to the institution of the case, specifically on 22 March 1998, Republic Act (R.A.) No. 8552, also
known as the Domestic Adoption Act, went into effect. The new statute deleted from the law the right of
adopters to rescind a decree of adoption.
Section 19 of Article VI of R.A. No. 8552 now reads:
"SEC. 19. Grounds for Rescission of Adoption. Upon petition of the adoptee, with the
assistance of the Department if a minor or if over eighteen (18) years of age but is incapacitated,
as guardian/counsel, the adoption may be rescinded on any of the following grounds committed
by the adopter(s): (a) repeated physical and verbal maltreatment by the adopter(s) despite having
undergone counseling; (b) attempt on the life of the adoptee; (c) sexual assault or violence; or (d)
abandonment and failure to comply with parental obligations.
"Adoption, being in the best interest of the child, shall not be subject to rescission by the
adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in Article 919
of the Civil Code." (emphasis supplied)
Jose Melvin moved for the dismissal of the petition, contending principally (a) that the trial court had no
jurisdiction over the case and (b) that the petitioner had no cause of action in view of the aforequoted
provisions of R.A. No. 8552. Petitioner asseverated, by way of opposition, that the proscription in R.A. No.
8552 should not retroactively apply, i.e., to cases where the ground for rescission of the adoption vested
under the regime of then Article 3482of the Civil Code and Article 1923 of the Family Code.
In an order, dated 28 April 2000, the trial court held thusly:
"On the issue of jurisdiction over the subject matter of the suit, Section 5(c) of R.A. No. 8369
confers jurisdiction to this Court, having been designated Family Court in A.M. No. 99-11-07 SC.
"On the matter of no cause of action, the test on the sufficiency of the facts alleged in the
complaint, is whether or not, admitting the facts alleged, the Court could render a valid judgment
in accordance with the prayer of said complaint (De Jesus, et al. vs. Belarmino, et al., 95 Phil.
365).
"Admittedly, Section 19, Article VI of R.A. No. 8552 deleted the right of an adopter to rescind an
adoption earlier granted under the Family Code. Conformably, on the face of the petition, indeed
there is lack of cause of action.
"Petitioner however, insists that her right to rescind long acquired under the provisions of the
Family Code should be respected. Assuming for the sake of argument, that petitioner is entitled to
rescind the adoption of respondent granted on May 5, 1972, said right should have been
exercised within the period allowed by the Rules. From the averments in the petition, it appears
clear that the legal grounds for the petition have been discovered and known to petitioner for
more than five (5) years, prior to the filing of the instant petition on December 1, 1999, hence, the
action if any, had already prescribed. (Sec. 5, Rule 100 Revised Rules of Court)
"WHEREFORE, in view of the foregoing consideration, the petition is ordered dismissed." 4
Via a petition for review on certiorari under Rule 45 of the 1997 Rules of Court, petitioner raises the
following questions; viz:

1. May the subject adoption, decreed on 05 May 1972, still be revoked or rescinded by an
adopter after the effectivity of R.A. No. 8552?
2. In the affirmative, has the adopter's action prescribed?
A brief background on the law and its origins could provide some insights on the subject. In ancient times,
the Romans undertook adoption to assure male heirs in the family.5 The continuity of the adopter's family
was the primary purpose of adoption and all matters relating to it basically focused on the rights of the
adopter. There was hardly any mention about the rights of the adopted. 6 Countries, like Greece, France,
Spain and England, in an effort to preserve inheritance within the family, neither allowed nor recognized
adoption.7 It was only much later when adoption was given an impetus in law and still later when the
welfare of the child became a paramount concern.8 Spain itself which previously disfavored adoption
ultimately relented and accepted the Roman law concept of adoption which, subsequently, was to find its
way to the archipelago. The Americans came and introduced their own ideas on adoption which, unlike
most countries in Europe, made the interests of the child an overriding consideration. 9 In the early part of
the century just passed, the rights of children invited universal attention; the Geneva Declaration of Rights
of the Child of 1924 and the Universal Declaration of Human Rights of 1948, 10 followed by the United
Nations Declarations of the Rights of the Child,11 were written instruments that would also protect and
safeguard the rights of adopted children. The Civil Code of the Philippines 12 of 1950 on adoption, later
modified by the Child and Youth Welfare Code13 and then by the Family Code of the Philippines,14gave
immediate statutory acknowledgment to the rights of the adopted. In 1989, the United Nations initiated the
Convention of the Rights of the Child. The Philippines, a State Party to the Convention, accepted the
principle that adoption was impressed with social and moral responsibility, and that its underlying intent
was geared to favor the adopted child. R.A. No. 8552 secured these rights and privileges for the adopted.
Most importantly, it affirmed the legitimate status of the adopted child, not only in his new family but also
in the society as well. The new law withdrew the right of an adopter to rescind the adoption decree and
gave to the adopted child the sole right to sever the legal ties created by adoption.
Petitioner, however, would insist that R.A. No. 8552 should not adversely affect her right to annul the
adoption decree, nor deprive the trial court of its jurisdiction to hear the case, both being vested under the
Civil Code and the Family Code, the laws then in force.
VV The concept of "vested right" is a consequence of the constitutional guaranty of due process 15 that
expresses a present fixed interest which in right reason and natural justice is protected against arbitrary
state action;16 it includes not only legal or equitable title to the enforcement of a demand but also
exemptions from new obligations created after the right has become vested.17 Rights are considered
vested when the right to enjoyment is a present interest, 18 absolute, unconditional, and perfect19 or fixed
and irrefutable.
In Republic vs. Court of Appeals,20 a petition to adopt Jason Condat was filed by Zenaida C. Bobiles on
02 February 1988 when the Child and Youth Welfare Code (Presidential Decree No. 603) allowed an
adoption to be sought by either spouse or both of them. After the trial court had rendered its decision and
while the case was still pending on appeal, the Family Code of the Philippines (Executive Order No.
209), mandating joint adoption by the husband and wife, took effect. Petitioner Republic argued that the
case should be dismissed for having been filed by Mrs. Bobiles alone and without being joined by the
husband. The Court concluded that the jurisdiction of the court is determined by the statute in force at the
time of the commencement of the action. The petition to adopt Jason, having been filed with the court
at the time when P.D. No. 603 was still in effect, the right of Mrs. Bobiles to file the petition, without being
joined by her husband, according to the Court had become vested. In Republic vs. Miller,21 spouses
Claude and Jumrus Miller, both aliens, sought to adopt Michael Madayag. On 29 July 1988, the couple
filed a petition to formalize Michael's adoption having theretofore been taken into their care. At the time

the action was commenced, P.D. No. 603 allowed aliens to adopt. After the decree of adoption and while
on appeal before the Court of Appeals, the Family Code was enacted into law on 08 August 1988
disqualifying aliens from adopting Filipino children. The Republic then prayed for the withdrawal of the
adoption decree. In discarding the argument posed by the Republic, the Supreme Court ruled that the
controversy should be resolved in the light of the law governing at the time the petition was filed.
It was months after the effectivity of R.A. No. 8552 that herein petitioner filed an action to revoke the
decree of adoption granted in 1975. By then, the VV new law,22 had already abrogated and repealed the
right of an adopter under the Civil Code and the Family Code to rescind a decree of adoption.
Consistently with its earlier pronouncements, the Court should now hold that the action for rescission of
the adoption decree, having been initiated by petitioner after R.A. No. 8552 had come into force, no
longer could be pursued.
Interestingly, even before the passage of the statute, an action to set aside the adoption is subject to the
five-year bar rule under Rule 10023 of the Rules of Court and that the adopter would lose the right to
revoke the adoption decree after the lapse of that period. The exercise of the right within a prescriptive
period is a condition that could not fulfill the requirements of a vested right entitled to protection. It must
also be acknowledged that VV a person has no vested right in statutory privileges. 24 While adoption has
often been referred to in the context of a "right," the privilege to adopt is itself not naturally innate or
fundamental but rather a right merely created by statute. 25 It is a privilege that is governed by the state's
determination on what it may deem to be for the best interest and welfare of the child. 26 Matters relating to
adoption, including the withdrawal of the right of an adopter to nullify the adoption decree, are subject to
regulation by the State.27 Concomitantly, a right of action given by statute may be taken away at anytime
before it has been exercised.28
While R.A. No. 8552 has unqualifiedly withdrawn from an adopter a consequential right to rescind the
adoption decree even in cases where the adoption might clearly turn out to be undesirable, it remains,
nevertheless, the bounden duty of the Court to apply the law. Dura lex sed lex would be the hackneyed
truism that those caught in the law have to live with. It is still noteworthy, however, that an adopter, while
barred from severing the legal ties of adoption, can always for valid reasons cause the forfeiture of certain
benefits otherwise accruing to an undeserving child. For instance, upon the grounds recognized by law,
an adopter may deny to an adopted child his legitime and, by a will and testament, may freely exclude
him from having a share in the disposable portion of his estate.
WHEREFORE, the assailed judgment of the court a quo is AFFIRMED. No costs.
SO ORDERED.

June 27, 2006

DIWATA RAMOS LANDINGIN Petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, Respondent.
DECISION
CALLEJO, SR., J.:

Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is the Decision 1 of the
Court of Appeals in CA-G.R. CV No. 77826 which reversed the Decision 2 of the Regional Trial Court
(RTC) of Tarlac City, Branch 63 in Civil Case No. 2733 granting the Petition for Adoption of the petitioner
herein.
The Antecedents
On February 4, 2002, Diwata Ramos Landingin, a citizen of the United States of America (USA), of
Filipino parentage and a resident of Guam, USA, filed a petition3 for the adoption of minors Elaine Dizon
Ramos who was born on August 31, 1986;4 Elma Dizon Ramos, who was born on September 7,
1987;5 and Eugene Dizon Ramos who was born on August 5, 1989.6 The minors are the natural children
of Manuel Ramos, petitioners brother, and Amelia Ramos.
Landingin, as petitioner, alleged in her petition that when Manuel died on May 19, 1990,7 the children
were left to their paternal grandmother, Maria Taruc Ramos; their biological mother, Amelia, went to Italy,
re-married there and now has two children by her second marriage and no longer communicated with her
children by Manuel Ramos nor with her in-laws from the time she left up to the institution of the adoption;
the minors are being financially supported by the petitioner and her children, and relatives abroad; as
Maria passed away on November 23, 2000, petitioner desires to adopt the children; the minors have
given their written consent8 to the adoption; she is qualified to adopt as shown by the fact that she is a 57year-old widow, has children of her own who are already married, gainfully employed and have their
respective families; she lives alone in her own home in Guam, USA, where she acquired citizenship, and
works as a restaurant server. She came back to the Philippines to spend time with the minors; her
children gave their written consent9 to the adoption of the minors. Petitioners brother, Mariano Ramos,
who earns substantial income, signified his willingness and commitment to support the minors while in
petitioners custody.
Petitioner prayed that, after due hearing, judgment be rendered in her favor, as follows:
WHEREFORE, it is most respectfully prayed to this Honorable Court that after publication and hearing,
judgment be rendered allowing the adoption of the minor children Elaine Dizon Ramos, Elma Dizon
Ramos, and Eugene Dizon Ramos by the petitioner, and ordering that the minor childrens name follow
the family name of petitioner.
Petitioner prays for such other reliefs, just and equitable under the premises. 10
On March 5, 2002, the court ordered the Department of Social Welfare and Development (DSWD) to
conduct a case study as mandated by Article 34 of Presidential Decree No. 603, as amended, and to
submit a report thereon not later than April 4, 2002, the date set for the initial hearing of the petition. 11 The
Office of the Solicitor General (OSG) entered its appearance 12 but deputized the City Prosecutor of Tarlac
to appear in its behalf.13Since her petition was unopposed, petitioner was allowed to present her evidence
ex parte.14
The petitioner testified in her behalf. She also presented Elaine Ramos, the eldest of the adoptees, to
testify on the written consent executed by her and her siblings. 15 The petitioner marked in evidence the
Affidavit of Consent purportedly executed by her children Ann, Errol, Dennis and Ricfel Branitley, all
surnamed Landingin, and notarized by a notary public in Guam, USA, as proof of said consent. 16
On May 24, 2002, Elizabeth Pagbilao, Social Welfare Officer II of the DSWD, Field Office III, Tarlac,
submitted a Child Study Report, with the following recommendation:

In view of the foregoing, undersigned finds minors Elaine, Elma & Eugene all surnamed Ramos, eligible
for adoption because of the following reasons:
1. Minors surviving parent, the mother has voluntarily consented to their adoption by the paternal
aunt, Diwata Landingin this is in view of her inability to provide the parental care, guidance and
support they need. An Affidavit of Consent was executed by the mother which is hereto attached.
2. The three minors subject for adoption have also expressed their willingness to be adopted and
joins the petitioners in Guam, USA in the future. A joint Affidavit of consent is hereto attached. The
minors developed close attachment to the petitioners and they regarded her as second parent.
3. The minors are present under the care of a temporary guardian who has also family to look
after. As young adolescents they really need parental love, care, guidance and support to ensure
their protection and well being.
In view of the foregoing, it is hereby respectfully recommended that minors Elaine D. Ramos, Elma D.
Ramos and Eugene D. Ramos be adopted by their maternal aunt Diwata Landingin. Trial custody is
hereby further recommended to be dispensed with considering that they are close relatives and that close
attachments was already developed between the petitioner and the 3 minors. 17
Pagbilao narrated what transpired during her interview, as follows:
The mother of minors came home together with her son John Mario, this May 2002 for 3 weeks vacation.
This is to enable her appear for the personal interview concerning the adoption of her children.
The plan for the adoption of minors by their paternal aunt Diwata Landingin was conceived after the death
of their paternal grandmother and guardian. The paternal relatives including the petitioner who attended
the wake of their mother were very much concerned about the well-being of the three minors. While
preparing for their adoption, they have asked a cousin who has a family to stay with minors and act as
their temporary guardian.
The mother of minors was consulted about the adoption plan and after weighing the benefits of adoption
to her children, she voluntarily consented. She realized that her children need parental love, guidance and
support which she could not provide as she already has a second family & residing in Italy. Knowing also
that the petitioners & her children have been supporting her children up to the present and truly care for
them, she believes her children will be in good hands. She also finds petitioners in a better position to
provide a secured and bright future to her children. 18
However, petitioner failed to present Pagbilao as witness and offer in evidence the voluntary consent of
Amelia Ramos to the adoption; petitioner, likewise, failed to present any documentary evidence to prove
that Amelia assents to the adoption.
On November 23, 2002, the court, finding merit in the petition for adoption, rendered a decision granting
said petition. The dispositive portion reads:
WHEREFORE, it is hereby ordered that henceforth, minors Elaine Dizon Ramos, Elma Dizon
Ramos, Eugene Dizon Ramos be freed from all legal obligations obedience and maintenance
from their natural parents and that they be declared for all legal intents and purposes the children
of Diwata Ramos Landingin. Trial custody is dispensed with considering that parent-children

relationship has long been established between the children and the adoptive parents. Let the
surnames of the children be changed from "Dizon-Ramos" to "Ramos-Landingin."
Let a copy of this decision be furnished the Local Civil Registrar of Tarlac, Tarlac for him to effect
the corresponding changes/amendment in the birth certificates of the above-mentioned minors.
SO ORDERED.19
The OSG appealed20 the decision to the Court of Appeals on December 2, 2002. In its brief 21 for the
oppositor-appellant, the OSG raised the following arguments:
I
THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF
CONSENT OF THE PROPOSED ADOPTEES BIOLOGICAL MOTHER.
II
THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF
THE WRITTEN CONSENT OF THE PETITIONERS CHILDREN AS REQUIRED BY LAW.
III
THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE PETITIONERS
FAILURE TO ESTABLISH THAT SHE IS IN A POSITION TO SUPPORT THE PROPOSED ADOPTEES.
On April 29, 2004, the CA rendered a decision22 reversing the ruling of the RTC. It held that petitioner
failed to adduce in evidence the voluntary consent of Amelia Ramos, the childrens natural mother.
Moreover, the VV affidavit of consent of the petitioners children could not also be admitted in evidence as
the same was executed in Guam, USA and was not authenticated or acknowledged before a Philippine
consular office, and although petitioner has a job, she was not stable enough to support the children. The
dispositive portion of the CA decision reads:
WHEREFORE, premises considered, the appealed decision dated November 25, 2002 of the
Regional Trial Court, Branch 63, Tarlac City in Spec. Proc. No. 2733 is hereby REVERSED and
SET ASIDE.
SO ORDERED.23
Petitioner filed a Motion for Reconsideration24 on May 21, 2004, which the CA denied in its Resolution
dated August 12, 2004.25
Petitioner, thus, filed the instant petition for review on certiorari 26 on September 7, 2004, assigning the
following errors:
1. THAT THE HONORABLE LOWER COURT HAS OVERLOOKED AND MISAPPLIED SOME
FACTS AND CIRCUMSTANCES WHICH ARE OF WEIGHT AND IMPORTANCE AND WHICH IF
CONSIDERED WOULD HAVE AFFECTED THE RESULT OF THE CASE.

2. THAT THE HONORABLE LOWER COURT ERRED IN CONCLUDING THAT THE

PETITIONER-APPELLEE IS NOT FINANCIALLY CAPABLE TO SUPPORT THE THREE
CHILDREN.27
The issues raised by the parties in their pleadings are the following: (a) whether the petitioner is entitled to
adopt the minors without the written consent of their biological mother, Amelia Ramos; (b) whether or not
the affidavit of consent purportedly executed by the petitioner-adopters children sufficiently complies with
the law; and (c) whether or not petitioner is financially capable of supporting the adoptees.
The Courts Ruling
The petition is denied for lack of merit.
It has been the policy of the Court to adhere to the liberal concept, as stated in Malkinson v. Agrava, 28 that
adoption statutes, being humane and salutary, hold the interest and welfare of the child to be of
paramount consideration and are designed to provide homes, parental care and education for
unfortunate, needy or orphaned children and give them the protection of society and family in the person
of the adopter as well as to allow childless couples or persons to experience the joys of parenthood and
give them legally a child in the person of the adopted for the manifestation of their natural parental
instincts. Every reasonable intendment should thus be sustained to promote and fulfill these noble and
compassionate objectives of the law.29
However, in Cang v. Court of Appeals,30 the Court also ruled that the liberality with which this Court treats
matters leading to adoption insofar as it carries out the beneficent purposes of the law to ensure the rights
and privileges of the adopted child arising therefrom, ever mindful that the paramount consideration is the
overall benefit and interest of the adopted child, should be understood in its proper context and
perspective. The Courts position should not be misconstrued or misinterpreted as to extend to inferences
beyond the contemplation of law and jurisprudence. Thus, the discretion to approve adoption proceedings
is not to be anchored solely on best interests of the child but likewise, with due regard to the natural rights
of the parents over the child.31
Section 9 of Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998, provides:
Sec. 9. Whose Consent is Necessary to the Adoption. - After being properly counseled and
informed of his/her right to give or withhold his/her approval of the adoption, the written consent of
the following to the adoption is hereby required:
(a) The adoptee, if ten (10) years of age or over;
(b) The biological parent(s) of the child, if known, or the legal guardian, or the proper
government instrumentality which has legal custody of the child;
(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the
adopter(s) and adoptee, if any;
(d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter, if living
with said adopter and the latters souse, if any;
(e) The spouse, if any, of the person adopting or to be adopted.

The VM general requirement of consent and notice to the natural parents is intended to protect the natural
parental relationship from unwarranted interference by interlopers, and to insure the opportunity to
safeguard the best interests of the child in the manner of the proposed adoption. 32
Clearly, the written consent of the biological parents is VM indispensable for the validity of a decree of
adoption. Indeed, the natural right of a parent to his child requires that his consent must be obtained
before his parental rights and duties may be terminated and re-established in adoptive parents. In this
case, petitioner failed to submit the written consent of Amelia Ramos to the adoption.
We note that in her Report, Pagbilao declared that she was able to interview Amelia Ramos who arrived
in the Philippines with her son, John Mario in May 2002. If said Amelia Ramos was in the Philippines and
Pagbilao was able to interview her, it is incredible that the latter would not require Amelia Ramos to
execute a Written Consent to the adoption of her minor children. Neither did the petitioner bother to
present Amelia Ramos as witness in support of the petition.
Petitioner, nonetheless, argues that the written consent of the biological mother is no longer necessary
because when Amelias husband died in 1990, she left for Italy and never came back. The children were
then left to the guidance and care of their paternal grandmother. It is the paternal relatives, including
petitioner, who provided for the childrens financial needs. Hence, Amelia, the biological mother, had
effectively abandoned the children. Petitioner further contends that it was by twist of fate that after 12
years, when the petition for adoption was pending with the RTC that Amelia and her child by her second
marriage were on vacation in the Philippines. Pagbilao, the DSWD social worker, was able to meet her,
and during the meeting, Amelia intimated to the social worker that she conformed to the adoption of her
three children by the petitioner.
Petitioners contention must be rejected. When she filed her petition with the trial court, Rep. Act No. 8552
was already in effect. Section 9 thereof provides that if the written consent of the biological parents cannot
be obtained, the written consent of the legal guardian of the minors will suffice. If, as claimed by petitioner,
that the VM biological mother of the minors had indeed abandoned them, she should, thus have adduced
the written consent of their legal guardian.
Ordinarily, abandonment by a parent to justify the adoption of his child without his consent, is a conduct
which evinces a settled purpose to forego all parental duties. 33 The term means neglect and refusal to
perform the filial and legal obligations of love and support. If a parent withholds presence, love, care, the
opportunity to display filial affection, and neglects to lend support and maintenance, the parent, in effect,
abandons the child.34
VM Merely permitting the child to remain for a time undisturbed in the care of others is not such an
abandonment.35To dispense with the requirement of consent, the abandonment must be shown to have
existed at the time of adoption.36
In this case, petitioner relied solely on her testimony and that of Elaine Ramos to prove her claim that
Amelia Ramos had abandoned her children. Petitioners testimony on that matter follows:
Q Where is the mother of these three children now?
A She left for Italy on November 20, 1990, sir.
Q At the time when Amelia Ramos left for Italy, was there an instance where she communicated with the
family?

A None, sir.
Q How about with her children?
A None, sir.
Q Do you know what place in Italy did she reside?
A I do not know, sir.
Q Did you receive any news about Amelia Ramos?
A What I know, sir, was that she was already married with another man.
Q From whom did you learn that?
A From others who came from Italy, sir.
Q Did you come to know whether she has children by her second marriage?
A Yes, sir, she got two kids.37
Elaine, the eldest of the minors, testified, thus:
Q Where is your mother now?
A In Italy, sir.
Q When did your mother left for Italy?
A After my father died, sir.
Q How old were you when your mother left for Italy in 1990?
A Two years old, sir.
Q At the time when your mother left for Italy, did your mother communicate with you?
A No, sir.38
However, the Home Study Report of the DSWD Social Worker also stated the following:
IV. Background of the Case:
xxxx
Since the mother left for Italy, minors siblings had been under the care and custody of their maternal
grandmother. However, she died in Nov. 2001 and an uncle, cousin of their deceased father now serves
as their guardian. The petitioner, together with her children and other relatives abroad have been

supporting the minor children financially, even during the time that they were still living with their natural
parents. Their VM mother also sends financial support but very minimal.39
xxxx
V. Background Information about the Minors Being Sought for Adoption:
xxxx
As the eldest she tries her best to be a role model to her younger siblings. She helps them in their
lessons, works and has fun with them. She also encourages openness on their problems and concerns
and provides petty counseling. In serious problems she already consult (sic) her mother and petitioneraunt.40
xxxx
In their 5 years of married life, they begot 3 children, herein minors, Amelia recalled that they had a happy
and comfortable life. After the death of her husband, her in-laws which include the petitioner had
continued providing support for them. However being ashamed of just depending on the support of her
husbands relatives, she decided to work abroad. Her parents are also in need of financial help as they
are undergoing maintenance medication. Her parents mortgaged their farm land which she used in going
to Italy and worked as domestic helper.
When she left for Italy in November 1990, she entrusted her 3 children to the care & custody of her
mother-in-law who returned home for good, however she died on November 2000.
While working in Italy, she met Jun Tayag, a married man from Tarlac. They became live-in partners since
1995 and have a son John Mario who is now 2 years old. The three of them are considered Italian
residents. Amelia claimed that Mr. Tayag is planning to file an annulment of his marriage and his wife is
amenable to it. He is providing his legitimate family regular support.
Amelia also sends financial support ranging from P10,000-P15,000 a month through her parents who
share minimal amount of P3,000-P5,000 a month to his (sic) children. The petitioner and other paternal
relatives are continuously providing support for most of the needs & education of minors up to present. 41
Thus, VM when Amelia left for Italy, she had not intended to abandon her children, or to permanently
sever their mother-child relationship. She was merely impelled to leave the country by financial
constraints. Yet, even while abroad, she did not surrender or relinquish entirely her motherly obligations of
rearing the children to her now deceased mother-in-law, for, as claimed by Elaine herself, she consulted
her mother, Amelia, for serious personal problems. Likewise, Amelia continues to send financial support to
the children, though in minimal amounts as compared to what her affluent in-laws provide.
Let it be emphasized, nevertheless, that the adoption of the minors herein will have the effect of severing
all legal ties between the biological mother, Amelia, and the adoptees, and that the same shall then be
vested on the adopter.42 VM It would thus be against the spirit of the law if financial consideration were to
be the paramount consideration in deciding whether to deprive a person of parental authority over his/her
children. More proof has to be adduced that Amelia has emotionally abandoned the children, and that the
latter will not miss her guidance and counsel if they are given to an adopting parent. 43 Again, it is the best
interest of the child that takes precedence in adoption.

Section 34, Rule 132 of the Rules of Court provides that the Court shall consider no evidence which has
not been formally offered. The purpose for which the evidence is offered must be specified. The offer of
evidence is necessary because it is the duty of the Court to rest its findings of fact and its judgment only
and strictly upon the evidence offered by the parties. Unless and until admitted by the court in evidence
for the purpose or purposes for which such document is offered, the same is merely a scrap of paper
barren of probative weight. Mere identification of documents and the markings thereof as exhibits do not
confer any evidentiary weight on documents unless formally offered. 44
Petitioner failed to offer in evidence Pagbilaos Report and of the Joint Affidavit of Consent purportedly
executed by her children; the authenticity of which she, likewise, failed to prove. The joint written consent
of petitioners children45 was notarized on January 16, 2002 in Guam, USA; for it to be treated by the
Rules of Court in the same way as a document notarized in this country it needs to comply with Section 2
of Act No. 2103,46 which states:
Section 2. An instrument or document acknowledged and authenticated in a foreign country shall be
considered authentic if the acknowledgment and authentication are made in accordance with the following
requirements:
(a) The acknowledgment shall be made before (1) an ambassador, minister, secretary of legation,
charg d affaires, consul, vice-consul, or consular agent of the Republic of the Philippines, acting
within the country or place to which he is accredited, or (2) a notary public or officer duly
authorized by law of the country to take acknowledgments of instruments or documents in the
place where the act is done.
(b) The person taking the acknowledgment shall certify that the person acknowledging the
instrument or document is known to him, and that he is the same person who executed it, and
acknowledged that the same is his free act and deed. The certificate shall be under his official
seal, if he is by law required to keep a seal, and if not, his certificate shall so state. In case the
acknowledgment is made before a notary public or an officer mentioned in subdivision (2) of the
preceding paragraph, the certificate of the notary public or the officer taking the acknowledgment
shall be authenticated by an ambassador, minister, secretary of legation, charg de affaires,
consul, vice-consul, or consular agent of the Republic of the Philippines, acting within the country
or place to which he is accredited. The officer making the authentication shall certify under his
official seal that the person who took the acknowledgment was at the time duly authorized to act
as notary public or that he was duly exercising the functions of the office by virtue of which he
assumed to act, and that as such he had authority under the law to take acknowledgment of
instruments or documents in the place where the acknowledgment was taken, and that his
signature and seal, if any, are genuine.
As the alleged written consent of petitioners legitimate children did not comply with the afore-cited law,
the same can at best be treated by the Rules as a private document whose authenticity must be proved
either by anyone who saw the document executed or written; or by evidence of the genuineness of the
signature or handwriting of the makers.47
Since, in the instant case, no further proof was introduced by petitioner to authenticate the written consent
of her legitimate children, the same is inadmissible in evidence.
In reversing the ruling of the RTC, the CA ruled that petitioner was not stable enough to support the
children and is only relying on the financial backing, support and commitment of her children and her
siblings.48 Petitioner contradicts this by claiming that she is financially capable as she has worked in
Guam for 14 years, has savings, a house, and currently earns $5.15 an hour with tips of not less than

$1,000.00 a month. Her children and siblings have likewise committed themselves to provide financial
backing should the need arise. The OSG, again in its comment, banks on the statement in the Home
Study Report that "petitioner has limited income." VM Accordingly, it appears that she will rely on the
financial backing of her children and siblings in order to support the minor adoptees. The law, however,
states that it is the adopter who should be in a position to provide support in keeping with the means of
the family.
Since the primary consideration in adoption is the best interest of the child, it follows that the financial
capacity of prospective parents should also be carefully evaluated and considered. Certainly, the adopter
should be in a position to support the would-be adopted child or children, in keeping with the means of the
family.
According to the Adoption Home Study Report49 forwarded by the Department of Public Health & Social
Services of the Government of Guam to the DSWD, petitioner is no longer supporting her legitimate
children, as the latter are already adults, have individual lives and families. At the time of the filing of the
petition, petitioner was 57 years old, employed on a part-time basis as a waitress, earning $5.15 an hour
and tips of around $1,000 a month. Petitioners main intention in adopting the children is to bring the latter
to Guam, USA. She has a house at Quitugua Subdivision in Yigo, Guam, but the same is still being
amortized. Petitioner likewise knows that the limited income might be a hindrance to the adoption
proceedings.
Given these limited facts, it is indeed doubtful whether petitioner will be able to sufficiently handle the
financial aspect of rearing the three children in the US. She only has a part-time job, and she is rather of
age. While petitioner claims that she has the financial support and backing of her children and siblings,
the OSG is correct in stating that the VM ability to support the adoptees is personal to the adopter, as
adoption only creates a legal relation between the former and the latter. Moreover, the records do not
prove nor support petitioners allegation that her siblings and her children are financially able and that
they are willing to support the minors herein. The Court, therefore, again sustains the ruling of the CA on
this issue.
While the Court recognizes that petitioner has only the best of intentions for her nieces and nephew, there
are legal infirmities that militate against reversing the ruling of the CA. In any case, petitioner is not
prevented from filing a new petition for adoption of the herein minors.
WHEREFORE, premises considered, the petition is hereby DENIED.
SO ORDERED.

May 21, 2009

IN RE: PETITION FOR ADOPTION OF MICHELLE P. LIM,
MONINA P. LIM, Petitioner.
x - - - - - - - - - - - - - - - - - - - - - - -x

IN RE: PETITION FOR ADOPTION OF MICHAEL JUDE P. LIM,

MONINA P. LIM, Petitioner.
DECISION
CARPIO, J.:
The Case
This is a petition for review on certiorari filed by Monina P. Lim (petitioner) seeking to set aside the
Decision1dated 15 September 2004 of the Regional Trial Court, General Santos City, Branch 22 (trial
court), in SPL. PROC. Case Nos. 1258 and 1259, which dismissed without prejudice the consolidated
petitions for adoption of Michelle P. Lim and Michael Jude P. Lim.
The Facts
The following facts are undisputed. Petitioner is an optometrist by profession. On 23 June 1974, she
married Primo Lim (Lim). They were childless. Minor children, whose parents were unknown, were
entrusted to them by a certain Lucia Ayuban (Ayuban). Being so eager to have a child of their own,
petitioner and Lim registered the children to make it appear that they were the childrens parents. The
children2 were named Michelle P. Lim (Michelle) and Michael Jude P. Lim (Michael). Michelle was barely
eleven days old when brought to the clinic of petitioner. She was born on 15 March 1977. 3 Michael was 11
days old when Ayuban brought him to petitioners clinic. His date of birth is 1 August 1983. 4
The spouses reared and cared for the children as if they were their own. They sent the children to
exclusive schools. They used the surname "Lim" in all their school records and documents. Unfortunately,
on 28 November 1998, Lim died. On 27 December 2000, petitioner married Angel Olario (Olario), an
American citizen.
Thereafter, petitioner decided to adopt the children by availing of the amnesty5 given under Republic Act
No. 85526 (RA 8552) to those individuals who simulated the birth of a child. Thus, on 24 April 2002,
petitioner filed separate petitions for the adoption of Michelle and Michael before the trial court docketed
as SPL PROC. Case Nos. 1258 and 1259, respectively. At the time of the filing of the petitions for
adoption, Michelle was 25 years old and already married, while Michael was 18 years and seven months
old.
Michelle and her husband gave their consent to the adoption as evidenced by their Affidavits of
Consent.7Michael also gave his consent to his adoption as shown in his Affidavit of Consent.8 Petitioners
husband Olario likewise executed an Affidavit of Consent 9 for the adoption of Michelle and Michael.
In the Certification issued by the Department of Social Welfare and Development (DSWD), Michelle was
considered as an abandoned child and the whereabouts of her natural parents were unknown. 10 The
DSWD issued a similar Certification for Michael.11
The Ruling of the Trial Court
On 15 September 2004, the trial court rendered judgment dismissing the petitions. The trial court ruled
that since petitioner had remarried, petitioner should have filed the petition jointly with her new husband.

The trial court ruled that joint adoption by the husband and the wife is mandatory citing Section 7(c),
Article III of RA 8552 and Article 185 of the Family Code.
Petitioner filed a Motion for Reconsideration of the decision but the motion was denied in the Order dated
16 June 2005. In denying the motion, the trial court ruled that petitioner did not fall under any of the
exceptions under Section 7(c), Article III of RA 8552. Petitioners argument that mere consent of her
husband would suffice was untenable because, under the law, there are additional requirements, such as
residency and certification of his qualification, which the husband, who was not even made a party in this
case, must comply.
As to the argument that the adoptees are already emancipated and joint adoption is merely for the joint
exercise of parental authority, the trial court ruled that joint adoption is not only for the purpose of
exercising parental authority because an emancipated child acquires certain rights from his parents and
assumes certain obligations and responsibilities.
Hence, the present petition.
Issue
Petitioner appealed directly to this Court raising the sole issue of whether or not petitioner, who has
remarried, can singly adopt.
The Courts Ruling
Petitioner contends that the rule on joint adoption must be relaxed because it is the duty of the court and
the State to protect the paramount interest and welfare of the child to be adopted. Petitioner argues that
the legal maxim "dura lex sed lex" is not applicable to adoption cases. She argues that joint parental
authority is not necessary in this case since, at the time the petitions were filed, Michelle was 25 years old
and already married, while Michael was already 18 years of age. Parental authority is not anymore
necessary since they have been emancipated having attained the age of majority.
We deny the petition.
Joint Adoption by Husband and Wife
It is undisputed that, at the time the petitions for adoption were filed, petitioner had already remarried. She
filed the petitions by herself, without being joined by her husband Olario. We have no other recourse but
to affirm the trial courts decision denying the petitions for adoption. Dura lex sed lex. The law is explicit.
Section 7, Article III of RA 8552 reads:
SEC. 7. Who May Adopt. - The following may adopt:
(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good
moral character, has not been convicted of any crime involving moral turpitude, emotionally and
psychologically capable of caring for children, at least sixteen (16) years older than the adoptee,
and who is in a position to support and care for his/her children in keeping with the means of the
family. The requirement of sixteen (16) year difference between the age of the adopter and
adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse
of the adoptees parent;

(b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided,
That his/her country has diplomatic relations with the Republic of the Philippines, that he/she has
been living in the Philippines for at least three (3) continuous years prior to the filing of the
application for adoption and maintains such residence until the adoption decree is entered, that
he/she has been certified by his/her diplomatic or consular office or any appropriate government
agency that he/she has the legal capacity to adopt in his/her country, and that his/her government
allows the adoptee to enter his/her country as his/her adopted son/daughter: Provided,
further, That the requirements on residency and certification of the aliens qualification to adopt in
his/her country may be waived for the following:
(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of
consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse
a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouses;
or
(c) The guardian with respect to the ward after the termination of the guardianship and clearance
of his/her financial accountabilities.
Husband and wife shall jointly adopt, except in the following cases:
(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided,
however, That the other spouse has signified his/her consent thereto; or
(iii) if the spouses are legally separated from each other.
In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the
other, joint parental authority shall be exercised by the spouses. (Emphasis supplied)
The use of the word "shall" in the above-quoted provision means that joint adoption by the husband and
the wife is mandatory. This is in consonance with the concept of joint parental authority over the child
which is the ideal situation. As the child to be adopted is elevated to the level of a legitimate child, it is but
natural to require the spouses to adopt jointly. The rule also insures harmony between the spouses.12
The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time the petitions for
adoption were filed, must jointly adopt. Since the petitions for adoption were filed only by petitioner
herself, without joining her husband, Olario, the trial court was correct in denying the petitions for adoption
on this ground.
Neither does petitioner fall under any of the three exceptions enumerated in Section 7. First, the children
to be adopted are not the legitimate children of petitioner or of her husband Olario. Second, the children
are not the illegitimate children of petitioner. And third, petitioner and Olario are not legally separated from
each other.

The fact that Olario gave his consent to the adoption as shown in his Affidavit of Consent does not suffice.
There are certain requirements that Olario must comply being an American citizen. He must meet the
qualifications set forth in Section 7 of RA 8552 such as: (1) he must prove that his country has diplomatic
relations with the Republic of the Philippines; (2) he must have been living in the Philippines for at least
three continuous years prior to the filing of the application for adoption; (3) he must maintain such
residency until the adoption decree is entered; (4) he has legal capacity to adopt in his own country; and
(5) the adoptee is allowed to enter the adopters country as the latters adopted child. None of these
qualifications were shown and proved during the trial.
These requirements on residency and certification of the aliens qualification to adopt cannot likewise be
waived pursuant to Section 7. The children or adoptees are not relatives within the fourth degree of
consanguinity or affinity of petitioner or of Olario. Neither are the adoptees the legitimate children of
petitioner.
Effects of Adoption
Petitioner contends that joint parental authority is not anymore necessary since the children have been
emancipated having reached the age of majority. This is untenable.
Parental authority includes caring for and rearing the children for civic consciousness and efficiency and
the development of their moral, mental and physical character and well-being. 13 The father and the
mother shall jointly exercise parental authority over the persons of their common children. 14 Even the
remarriage of the surviving parent shall not affect the parental authority over the children, unless the court
appoints another person to be the guardian of the person or property of the children. 15
It is true that when the child reaches the age of emancipation that is, when he attains the age of
majority or 18 years of age16 emancipation terminates parental authority over the person and property
of the child, who shall then be qualified and responsible for all acts of civil life. 17 However, parental
authority is merely just one of the effects of legal adoption. Article V of RA 8552 enumerates the effects of
adoption, thus:
ARTICLE V
EFFECTS OF ADOPTION
SEC. 16. Parental Authority. - Except in cases where the biological parent is the spouse of the adopter, all
legal ties between the biological parent(s) and the adoptee shall be severed and the same shall then be
vested on the adopter(s).
SEC. 17. Legitimacy. - The adoptee shall be considered the legitimate son/daughter of the adopter(s) for
all intents and purposes and as such is entitled to all the rights and obligations provided by law to
legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is
entitled to love, guidance, and support in keeping with the means of the family.
SEC. 18. Succession. - In legal and intestate succession, the adopter(s) and the adoptee shall have
reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and
his/her biological parent(s) had left a will, the law on testamentary succession shall govern.
Adoption has, thus, the following effects: (1) sever all legal ties between the biological parent(s) and the
adoptee, except when the biological parent is the spouse of the adopter; (2) deem the adoptee as a
legitimate child of the adopter; and (3) give adopter and adoptee reciprocal rights and obligations arising
from the relationship of parent and child, including but not limited to: (i) the right of the adopter to choose

the name the child is to be known; and (ii) the right of the adopter and adoptee to be legal and
compulsory heirs of each other.18 Therefore, even if emancipation terminates parental authority, the
adoptee is still considered a legitimate child of the adopter with all the rights 19 of a legitimate child such
as: (1) to bear the surname of the father and the mother; (2) to receive support from their parents; and (3)
to be entitled to the legitime and other successional rights. Conversely, the adoptive parents shall, with
respect to the adopted child, enjoy all the benefits to which biological parents are entitled 20 such as
support21 and successional rights.22
We are mindful of the fact that adoption statutes, being humane and salutary, hold the interests and
welfare of the child to be of paramount consideration. They are designed to provide homes, parental care
and education for unfortunate, needy or orphaned children and give them the protection of society and
family, as well as to allow childless couples or persons to experience the joys of parenthood and give
them legally a child in the person of the adopted for the manifestation of their natural parental instincts.
Every reasonable intendment should be sustained to promote and fulfill these noble and compassionate
objectives of the law.23 But, as we have ruled in Republic v. Vergara:24
We are not unmindful of the main purpose of adoption statutes, which is the promotion of the
welfare of the children. Accordingly, the law should be construed liberally, in a manner that will
sustain rather than defeat said purpose. The law must also be applied with compassion,
understanding and less severity in view of the fact that it is intended to provide homes, love, care
and education for less fortunate children. Regrettably, the Court is not in a position to affirm the
trial courts decision favoring adoption in the case at bar, for the law is clear and it cannot be
modified without violating the proscription against judicial legislation. Until such time
however, that the law on the matter is amended, we cannot sustain the respondent-spouses
petition for adoption. (Emphasis supplied)1avvphi1.zw+
Petitioner, being married at the time the petitions for adoption were filed, should have jointly filed the
petitions with her husband. We cannot make our own legislation to suit petitioner.
Petitioner, in her Memorandum, insists that subsequent events would show that joint adoption could no
longer be possible because Olario has filed a case for dissolution of his marriage to petitioner in the Los
Angeles Superior Court.
We disagree. The filing of a case for dissolution of the marriage between petitioner and Olario is of no
moment. It is not equivalent to a decree of dissolution of marriage. Until and unless there is a judicial
decree for the dissolution of the marriage between petitioner and Olario, the marriage still subsists. That
being the case, joint adoption by the husband and the wife is required. We reiterate our ruling above that
since, at the time the petitions for adoption were filed, petitioner was married to Olario, joint adoption is
mandatory.
WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 15 September 2004 of the
Regional Trial Court, General Santos City, Branch 22 in SPL. PROC. Case Nos. 1258 and 1259. Costs
against petitioner.
SO ORDERED.

SUPPORT
G.R. No. 127578 February 15, 1999
MANUEL DE ASIS, petitioner,
vs.
COURT OF APPEALS, HON. JAIME T. HAMOY, Branch 130, RTC, Kalookan City and GLEN CAMIL
ANDRES DE ASIS represented by her mother/guardian VIRCEL D. ANDRES, respondents.

PURISIMA, J.:
Petition for certiorari under Rule 65 of the Revised Rules of Court seeking to nullify the decision of the
Court of Appeals which affirmed the trial court's Orders, dated November 25, 1993 and February 4, 1994,
respectively, denying petitioner's Motion to Dismiss the Complaint in Civil Case No. C-16107, entitled
"Glen Camil Andres de Asis, etc. vs. Manuel de Asis", and the motion for reconsideration.
The pertinent facts leading to the filing of the petition at bar are as follows:
On October 14, 1988, Vircel D. Andres, (the herein private respondent) in her capacity as the legal
guardian of the minor, Glen Camil Andres de Asis, brought an action for maintenance and support against
Manuel de Asis, docketed as Civil Case No. Q-88-935 before the Regional Trial Court of Quezon City,
Branch 94, alleging that the defendant (respondent) Manuel de Asis (the petitioner here) is the father of
subject minor Glen Camil Andres de Asis, and the former refused and/or failed to provide for the
maintenance of the latter, despite repeated demands.
In his Answer, petitioner denied his paternity of the said minor and theorized that he cannot therefore be
required to provide support for him.
On July 4, 1989, private respondent Vircel D. Andres, through counsel, sent in a manifestation the
pertinent portion of which, reads;
1. That this proposed Amended Answer, defendant (respondent) (herein petitioner) has
made a judicial admission/declaration that "1). defendant (respondent) denies that the
said minor child (Glen Camil) is his child 2) he (petitioner) has no obligation to the plaintiff
Glen Camil . . .

2. That with the aforesaid judicial admission/declarations by the defendant (respondent),

it seems futile and a useless exercise to claim support from said defendant (respondent).
3. That under the foregoing circumstances it would be more practical that plaintiff
withdraws the complains against the defendant (respondent) subject to the condition that
the defendant (respondent) should not pursue his counterclaim in the above-entitled
case, . . . 1
By virtue of the said manifestation, both the plaintiff and the defendant (respondent) agreed to move for
the dismissal of the case. Acting thereupon, the Regional Trial Court a quo issued the following Order of
August 8, 1989, dismissing Civil Case No. Q-88-935 with prejudice, to wit:
Acting on the manifestation of Atty. Romualdo C. delos Santos, counsel for the defendant
(respondent), that counsel for the plaintiff Atty. Ismael J. Andres has no objection that this
case be withdrawn provided that the defendant (respondent) will withdraw the
counterclaim, as prayed for, let the case be dismissed with prejudice.
SO ORDERED. 2
On September 7, 1995, another Complaint for maintenance and support was brought against Manuel A.
de Asis, this time in the name of Glen Camil Andres de Asis, represented by her legal guardian/mother,
Vircel D. Andres. Docketed as Civil Case No. C-16107 before Branch 130 of the Regional Trial Court of
Kalookan, the said Complaint prayed, thus:
WHEREFORE, premises considered, it is respectfully prayed that judgment be rendered
ordering defendant (respondent):
1. To pay plaintiff the sum of not less than P2,000.00 per month for every month since
June 1, 1987 as support in arrears which defendant (respondent) failed to provide plaintiff
shortly after her birth in June 1987 up to present;
2. To give plaintiff a monthly allowance of P5,000.00 to be paid in advance on or before
the 5th of each and every month.
3. To give plaintiff by way of support pendente lite a monthly allowance of P5,000.00 per
month, the first monthly allowance to start retroactively from the first day of this month
and the subsequent ones to be paid in advance on or before the 5th of each succeeding
month.
4. To pay the costs of suit.
Plaintiff prays for such other relief just and equitable under the premises.

On October 8, 1993, petitioner moved to dismiss the Complaint on the ground of res judicata, alleging that
Civil Case C-16107 is barred by the prior judgment which dismissed with prejudice Civil Case Q -88-935.
In the Order dated November 25, 1993 denying subject motion to dismiss, the trial court ruled that res
judicata is inapplicable in an action for support for the reason that renunciation or waiver of future support
is prohibited by law. Petitioner's motion for reconsideration of the said Order met the same fate. It was
likewise denied.
Petitioner filed with the Court of Appeals a Petition for Certiorari. But on June 7, 1996, the Court of
Appeals found that the said Petition devoid of merit and dismissed the same.

Undaunted, petitioner found his way to this court via the present petition, posing the question whether or
not the public respondent acted with grave abuse of discretion amounting to lack or excess of jurisdiction
in upholding the denial of the motion to dismiss by the trial court, and holding that an action for support
cannot be barred by res judicata.
To buttress his submission, petitioner invokes the previous dismissal of the Complaint for maintenance
and support, Civil Case Q-88-935, filed by the mother and guardian of the minor, Glen Camil Andres de
Asis, (the herein private respondent). In said case, the petitioner manifested that because of the
defendant (respondent)'s judicial declaration denying that he is the father of subject minor child, it was
"futile and a useless exercise to claim support from defendant (respondent)". Because of such
manifestation, and respondent therein's assurance that he would not pursue his counterclaim anymore,
the parties mutually agreed to move for the dismissal of the complaint. The motion was granted by the
Quezon City Regional Trial Court, which then dismissed the case with prejudice.
Petitioner contends that the aforecited manifestation, in effect admitted the lack of filiation between him
and the minor child, which admission binds the complainant (petitioner), and since the obligation to give
support is based on the existence of paternity and filiation between the child and the putative parent, the
lack thereof negates the right to claim for support. Thus, petitioner maintains that the dismissal of the
Complaint by the lower court on the basis of the said manifestation bars the present action for support,
especially so because the order of the trial court explicitly stated that the dismissal of the case was with
prejudice.
The petition is not impressed with merit.
The right to receive support can neither be renounced nor transmitted to a third person. Article 301 of the
Civil Code, the law in point, reads:
Art. 301. The right to receive support cannot be renounced, nor can it be transmitted to a
third person. Neither can it be compensated with what the recipient owes the obligor. . . .
Furthermore, future support cannot be the subject of a compromise.
Art. 2035, ibid, provides, that:
No compromise upon the following questions shall be valid:
(1) The civil status of persons;
(2) The validity of a marriage or legal separation;
(3) Any ground for legal separation
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime.
The raison d' etre behind the proscription against renunciation, transmission and/or compromise of the
right to support is stated, thus:

The right to support being founded upon the need of the recipient to maintain his
existence, he is not entitled to renounce or transfer the right for this would mean
sanctioning the voluntary giving up of life itself. The right to life cannot be renounce;
hence, support which is the means to attain the former, cannot be renounced.
xxx xxx xxx
To allow renunciation or transmission or compensation of the family right of a person to
support is virtually to allow either suicide or the conversion of the recipient to a public
burden. This is contrary to public policy. 4
In the case at bar, respondent minor's mother, who was the plaintiff in the first case, manifested that she
was withdrawing the case as it seemed futile to claim support from petitioner who denied his paternity
over the child. Since the right to claim for support is predicated on the existence of filiation between the
minor child and the putative parent, petitioner would like us to believe that such manifestation admitting
the futility of claiming support from him puts the issue to rest and bars any and all future complaint for
support.
The manifestation sent in by respondent's mother in the first case, which acknowledged that it would be
useless to pursue its complaint for support, amounted to renunciation as it severed the vinculum that
gives the minor, Glen Camil, the right to claim support from his putative parent, the petitioner.
Furthermore, the agreement entered into between the petitioner and respondent's mother for the
dismissal of the complaint for maintenance and support conditioned upon the dismissal of the
counterclaim is in the nature of a compromise which cannot be countenanced. It violates the prohibition
against any compromise of the right to support.
Thus, the admission made by counsel for the wife of the facts alleged in a motion of the
husband, in which the latter prayed that his obligation to support be extinguished cannot
be considered as an assent to the prayer, and much less, as a waiver of the right to claim
for support. 5
It is true that in order to claim support, filiation and/or paternity must first be shown between the claimant
and the parent. However, paternity and filiation or the lack of the same is a relationship that must be
judicially established and it is for the court to declare its existence or absence. It cannot be left to the will
or agreement of the parties.
The civil status of a son having been denied, and this civil status, from which the right to
support is derived being in issue, it is apparent that no effect can be .given to such a
claim until an authoritative declaration has been made as to the existence of the cause. 6
Although in the case under scrutiny, the admission may be binding upon the respondent, such an
admission is at most evidentiary and does not conclusively establish the lack of filiation.
Neither are we persuaded by petitioner's theory that the dismissal with prejudice of Civil Case Q-88-935
has the effect of res judicata on the subsequent case for support. The case of Advincula vs.
Advincula 7 comes to the fore. In Advincula, the minor, Manuela Advincula, instituted a case for
acknowledgment and support against her putative father, Manuel Advincula. On motion of both parties
and for the reason that the "plaintiff has lost interest and is no longer interested in continuing the case
against the defendant (respondent) and has no further evidence to introduce in support of the complaint",
the case was dismissed. Thereafter, a similar case was instituted by Manuela, which the defendant
(respondent) moved to dismiss, theorizing that the dismissal of the first case precluded the filing of the
second case.
In disposing such case, this Court ruled, thus:

The new Civil Code provides that the allowance for support is provisional because the
amount may be increased or decreased depending upon the means of the giver and the
needs of the recipient (Art. 297); and that the right to receive support cannot be
renounced nor can it be transmitted to a third person neither can it be compensated with
what the recipient owes the obligator (Art .301). Furthermore, the right to support can not
be waived or transferred to third parties and future support cannot be the subject of
compromise (Art. 2035; Coral v. Gallego, 38 O.G. 3135, cited in IV Civil Code by Padilla,
p. 648; 1956 Ed.). This being true, it is indisputable that the present action for support can
be brought, notwithstanding the fact the previous case filed against the same defendant
(respondent) was dismissed. And it also appearing that the dismissal of Civil Case No.
3553, was not an adjudication upon the merits, as heretofore shown, the right of herein
plaintiff-appellant to reiterate her suit for support and acknowledgment is available, as her
needs arise. Once the needs of plaintiff arise, she has the right to bring an action for
support, for it is only then that her cause for action is accrues.. . .
xxx xxx xxx
It appears that the former dismissal was predicated upon compromise. Acknowledgment,
affecting as it does the civil status of a persons and future support, cannot be the subject
of compromise (pars. 1 & 4, Art. 2035, Civil Code). Hence, the first dismissal cannot have
force and effect and can not bar the filing of another action, asking for the same relief
against the same defendant (respondent). (emphasis supplied).
Conformably, notwithstanding the dismissal of Civil Case Q-88-935 and the lower court's pronouncement
that such dismissal was with prejudice, the second action for support may still prosper.
WHEREFORE, the petition under consideration is hereby DISMISSED and the decision of the Court of
Appeals AFFIRMED. No pronouncement as to costs.
SO ORDERED.

May 28, 2002

AUGUSTUS CAEZAR R. GAN, petitioner,
vs.
HON. ANTONIO C. REYES, in his capacity as Presiding Judge of RTC-Br. 61, Baguio City, ALBERT
G. TOLENTINO, in his capacity as RTC Sheriff of Baguio City, and FRANCHESKA JOY C.
PONDEVIDA, assisted by BERNADETTE C. PONDEVIDA, respondents.
BELLOSILLO, J.:
Quite apprehensive that she would not be able to send to school her three (3)-year old daughter
Francheska Joy S. Pondevida, Bernadette S. Pondevida wrote petitioner Augustus Caezar R.
Gan1 demanding support for their "love child." Petitioner, in his reply, denied paternity of the child. An
exasperated Bernadette thereafter instituted in behalf of her daughter a complaint against petitioner for
support with prayer for support pendente lite.2
Petitioner moved to dismiss on the ground that the complaint failed to state a cause of action. He argued
that since Francheska's certificate of birth indicated her father as "UNKNOWN," there was no legal or
factual basis for the claim of support.3 His motion, however, was denied by the trial court. 4

Despite denial of his motion, petitioner failed to file his answer within the reglementary period. Thus, on
19 January 2000 private respondent moved that petitioner be declared in default, which motion was
granted. In itsOrder declaring petitioner in default the trial court noted that petitioner's Motion to Admit
Answer was filed more than ninety (90) days after the expiration of the reglementary period, and only after
private respondent moved that petitioner be declared in default. Petitioner's motion for reconsideration
was also denied. Hence, the court received the evidence of private respondent ex parte.
After finding that the claim of filiation and support was adequately proved, the trial court rendered
its Decision on 12 May 2000 ordering petitioner to recognize private respondent Francheska Joy S.
Pondevida as his illegitimate child and support her with P20,000.00 every month to be paid on or before
the 15th of each month starting 15 April 2000. Likewise petitioner was ordered to pay Francheska Joy S.
Pondevida the accumulated arrears ofP20,000.00 per month from the day she was born, P50,000.00 as
attorney's fees and P25,000.00 for expenses of litigation, plus P20,000.00 on or before the 15th of every
month from 15 May 2000 as alimony pendente liteshould he desire to pursue further remedies against
private respondent.5
Forthwith, private respondent moved for execution of the judgment of support, which the trial court
granted by issuing a writ of execution, citing as reason therefor private respondent's immediate need for
schooling.6Pursuant to the writ, the sheriff levied upon a motor vehicle, a Honda City, with Plate No. UMT
884, registered in the name of "A.B. Leasing & Fin. Corp., Leased to: G & G Trading," and found within
the premises of petitioner's warehouse in Caloocan City.7
Meanwhile, petitioner appealed the Judgment to the Court of Appeals.8
On 9 June 2000 petitioner filed a petition for certiorari and prohibition with the Court of Appeals imputing
grave abuse of discretion to the trial court for ordering the immediate execution of the judgment. Petitioner
averred that the writ of execution was issued despite the absence of a good reason for immediate
enforcement. Petitioner insisted that as the judgment sought to be executed did not yet attain finality there
should be an exceptional reason to warrant its execution. He further alleged that the writ proceeded from
an order of default and a judgment rendered by the trial court in complete disregard of his "highly
meritorious defense." Finally, petitioner impugned the validity of the writ as he argued that it was issued
without notice to him. Petitioner stressed the fact that he received copy of the motion for immediate
execution two (2) weeks after its scheduled hearing.9
On 31 August 2000 the Court of Appeals dismissed the petition on the ratiocination that under Sec. 4,
Rule 39 of the 1997 Rules of Civil Procedure judgments for support are immediately executory and
cannot be stayed by an appeal. Thus, it did not help petitioner any to argue that there were no good
reasons to support its immediate execution. The second challenge hurled against the validity of the writ
concerning the lack of notice and hearing was likewise dismissed with the appeals court favoring
substantial justice over technicalities. Lastly, petitioner's justification for belatedly filing his
answer, i.e., miscommunication with his lawyer, was disregarded since it fell short of the statutory
requirements of "fraud, accident, mistake or excusable negligence." 10
His motion for reconsideration having been denied, petitioner came to us impugning the dismissal of his
petition for certiorari. Petitioner argues that under the rules a judgment for support which is subject of an
appeal cannot be executed absent any good reason for its immediate execution. Petitioner likewise
attacks the validity of the writ asserting that it was issued in violation of his right to notice and hearing.
Petitioner also seeks the setting aside of the default order and the judgment rendered thereafter for the
reason that should he be allowed to prove his defense of adultery, the claim of support would be most
likely denied.11 Petitioner claims that in an action by a child against his putative father, adultery of the
child's mother would be a valid defense to show that the child is a fruit of adulterous relations for, in such

case, it would not be the child of the defendant (respondent) and therefore not entitled to support.
Parenthetically, how could he be allowed to prove the defense of adultery when it was not even hinted
that he was married to the mother of Francheska Joy. Petitioner consents to submit to Dioxyribonucleic
Acid (DNA) Testing to resolve the issue of paternity, which test he claims has a reputation for accuracy.12
A careful review of the facts and circumstances of this case fails to persuade this Court to brand the
issuance of the writ of execution by the trial court and affirmed by the Court of Appeals with the vice of
grave abuse of discretion. There is no evidence indeed to justify the setting aside of the writ on the
ground that it was issued beyond the legitimate bounds of judicial discretion.
Section 4, Rule 39, of the Rules of Court clearly states that, unless ordered by the trial court, judgments in
actions for support are immediately executory and cannot be stayed by an appeal. This is an exception to
the general rule which provides that the taking of an appeal stays the execution of the judgment and that
advance executions will only be allowed if there are urgent reasons therefor. The aforesaid provision
peremptorily calls for immediate execution of all judgments for support and makes no distinction between
those which are the subject of an appeal and those which are not. To consider then petitioner's argument
that there should be good reasons for the advance execution of a judgment would violate the clear and
explicit language of the rule mandating immediate execution.
Petitioner is reminded that to the plain words of a legal provision we should make no further
explanation. Absoluta sententia expositore non indiget. Indeed, the interpretation which petitioner
attempts to foist upon us would only lead to absurdity, its acceptance negating the plain meaning of the
provision subject of the petition.
Petitioner would also have us annul the writ of execution on the ground that he was not notified of its
issuance. We are unable to accept such a plea for enough has been done by petitioner to delay the
execution of the writ. As the records show, in partial fulfillment of the writ of execution petitioner
surrendered a sedan which apparently was not his as it was later ordered released to a third party who
laid claim over the levied vehicle.13 Also, petitioner filed before the Court of Appeals a Motion for Leave to
Deposit in Court Support Pendente Lite promising to deposit the amount due as support every 15th of the
month, but to date has not deposited any amount in complete disavowal of his undertaking. 14 He was not
even deterred from appealing before us and needlessly taking up our time and energy by posing legal
questions that can be characterized, at best, as flimsy and trivial. We are thus not prepared to abrogate
the writ of execution issued in favor of private respondent for substantial justice would be better served if
petitioner be precluded from interposing another barrier to the immediate execution of the support
judgment.
We are not intimating that in every case the right to notice of hearing can be disregarded. That is not so. It
appears in this case that there has been too much temporizing in the execution of the writ which must not
be allowed to thwart the constitutional mandate for speedy disposition of cases. As has been said, a
technicality should be an aid to justice and not its great hindrance and chief enemy.15 Truly, if the writ of
execution would be voided on this ground alone, then procedural rules which were primarily drafted to
protect parties in the realm of constitutional guarantees would acquire a new sanctity at the expense of
equity and justice.
Lastly, we note that no useful purpose would be served if we dwell on petitioner's arguments concerning
the validity of the judgment by default and his insistence that he be subjected, together with private
respondent Bernadette C. Pondevida to DNA testing to settle the issue of paternity. The futility of his
arguments is very apparent. It is not for us at this instance to review or revise the Decision rendered by
the trial court for to do so would pre-empt the decision which may be rendered by the Court of Appeals in
the main case for support.

In all cases involving a child, his interest and welfare are always the paramount concerns. There may be
instances where, in view of the poverty of the child, it would be a travesty of justice to refuse him support
until the decision of the trial court attains finality while time continues to slip away. An excerpt from the
early case of De Leon v. Soriano16 is relevant, thus:
The money and property adjudged for support and education should and must be given presently
and without delay because if it had to wait the final judgment, the children may in the meantime
have suffered because of lack of food or have missed and lost years in school because of lack of
funds. One cannot delay the payment of such funds for support and education for the reason that
if paid long afterwards, however much the accumulated amount, its payment cannot cure the evil
and repair the damage caused. The children with such belated payment for support and
education cannot act as gluttons and eat voraciously and unwisely, afterwards, to make up for the
years of hunger and starvation. Neither may they enrol in several classes and schools and take
up numerous subjects all at once to make up for the years they missed in school, due to nonpayment of the funds when needed.
WHEREFORE, finding no reversible error in the Decision sought to be reviewed, the instant petition
is DENIED. The 31 August 2000 Decision of the Court of Appeals dismissing the Petition for Certiorari
instituted by petitioner Augustus Caezar C. Gan and upholding the validity of the 2 June 2000 Writ of
Execution issued by the Regional Trial Court Br. 61, Baguio City, in Civil Case No. 4234-R,
is AFFIRMED. Costs against petitioner.
SO ORDERED.

June 30, 2006

MA. BELEN B. MANGONON, for and in behalf of her minor children REBECCA ANGELA DELGADO
and REGINA ISABEL DELGADO. Petitioner,
vs.
HON. COURT OF APPEALS, HON. JUDGE JOSEFINA GUEVARA-SALONGA, Presiding Judge, RTCMakati, Branch 149, FEDERICO C. DELGADO and FRANCISCO C. DELGADO, Respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a Petition for Review on Certiorari assailing the Decision 1 of the Court of Appeals dated 20
March 1996, affirming the Order, dated 12 September 1995 2 of the Regional Trial Court (RTC), Branch
149, Makati, granting support pendente lite to Rebecca Angela (Rica) and Regina Isabel (Rina), both
surnamed Delgado.
The generative facts leading to the filing of the present petition are as follows:
On 17 March 1994, petitioner Ma. Belen B. Mangonon filed, in behalf of her then minor children Rica and
Rina, a Petition for Declaration of Legitimacy and Support, with application for support pendente lite with
the RTC Makati.3 In said petition, it was alleged that on 16 February 1975, petitioner and respondent

Federico (father) Delgado were civilly married by then City Court Judge Eleuterio Agudo in Legaspi City,
Albay. At that time, petitioner was only 21 years old while respondent Federico (father) was only 19 years
old. As the marriage was solemnized without the required consent per Article 85 of the New Civil Code, 4 it
was annulled on 11 August 1975 by the Quezon City Juvenile and Domestic Relations Court. 5
On 25 March 1976, or within seven months after the annulment of their marriage, petitioner gave birth to
twins Rica and Rina. According to petitioner, she, with the assistance of her second husband Danny
Mangonon, raised her twin daughters as private respondents had totally abandoned them. At the time of
the institution of the petition, Rica and Rina were about to enter college in the United States of America
(USA) where petitioner, together with her daughters and second husband, had moved to and finally
settled in. Rica was admitted to the University of Massachusetts (Amherst) while Rina was accepted by
the Long Island University and Western New England College. Despite their admissions to said
universities, Rica and Rina were, however, financially incapable of pursuing collegiate education because
of the following:
i) The average annual cost for college education in the US is about US$22,000/year, broken
down as follows:
Tuition Fees US$13,000.00
Room & Board 5,000.00
Books 1,000.00
Yearly Transportation &
Meal Allowance 3,000.00
Total US$ 22,000.00
or a total of US$44,000.00, more or less, for both Rica and Rina
ii) Additionally, Rica and Rina need general maintenance support each in the amount of
US$3,000.00 per year or a total of US$6,000 per year.
iii) Unfortunately, petitioners monthly income from her 2 jobs is merely US$1,200 after taxes
which she can hardly give general support to Rica and Rina, much less their required college
educational support.
iv) Neither can petitioners present husband be compelled to share in the general support and
college education of Rica and Rina since he has his own son with petitioner and own daughter
(also in college) to attend to.
v) Worse, Rica and Rinas petitions for Federal Student Aid have been rejected by the U.S.
Department of Education.6
Petitioner likewise averred that demands7 were made upon Federico (father) and the latters father,
Francisco (grandfather),8 for general support and for the payment of the required college education of
Rica and Rina. The twin sisters even exerted efforts to work out a settlement concerning these matters
with respondent Federico (father) and respondent Francisco (grandfather), the latter being generally

known to be financially well-off.9 These demands, however, remained unheeded. Considering the
impending deadline for admission to college and the opening of classes, petitioner and her then minor
children had no choice but to file the petition before the trial court.
Petitioner also alleged that Rica and Rina are her legitimate daughters by respondent Federico (father)
since the twin sisters were born within seven months from the date of the annulment of her marriage to
respondent Federico (father). However, as respondent Federico (father) failed to sign the birth certificates
of Rica and Rina, it was imperative that their status as legitimate children of respondent Federico (father),
and as granddaughters of respondent Francisco (grandfather), be judicially declared pursuant to Article
173 of the Family Code.10
As legitimate children and grandchildren, Rica and Rina are entitled to general and educational support
under Articles 17411 and 195(b)12 in relation to Articles 194(1 and 2)13 and 199(c)14 of the Family Code.
Petitioner alleged that under these provisions, in case of default on the part of the parents, the obligation
to provide support falls upon the grandparents of the children; thus, respondent Federico (father), or in his
default, respondent Francisco (grandfather) should be ordered to provide general and educational support
for Rica and Rina in the amount of US$50,000.00, more or less, per year.
Petitioner also claimed that she was constrained to seek support pendente lite from private respondents who are millionaires with extensive assets both here and abroad - in view of the imminent opening of
classes, the possibility of a protracted litigation, and Rica and Rinas lack of financial means to pursue
their college education in the USA.
In his Answer,15 respondent Francisco (grandfather) stated that as the birth certificates of Rica and Rina
do not bear the signature of respondent Federico (father), it is essential that their legitimacy be first
established as "there is no basis to claim support until a final and executory judicial declaration has been
made as to the civil status of the children." 16Whatever good deeds he may have done to Rica and Rina,
according to respondent Francisco (grandfather), was founded on pure acts of Christian charity. He,
likewise, averred that the order of liability for support under Article 199 of the Family Code is not
concurrent such that the obligation must be borne by those more closely related to the recipient. In this
case, he maintained that responsibility should rest on the shoulders of petitioner and her second
husband, the latter having voluntarily assumed the duties and responsibilities of a natural father. Even
assuming that he is responsible for support, respondent Francisco (grandfather) contends that he could
not be made to answer beyond what petitioner and the father could afford.
On 24 May 1994, petitioner filed a Motion to Declare Defendant (respondent) (respondent herein)
Federico (father) in Default.17 This was favorably acted upon by the trial court in the Order dated 16 June
1994.18
On 5 August 1994, respondent Federico (father) filed a Motion to Lift Order of Default alleging that the
summons and a copy of the petition were not served in his correct address. 19 Attached thereto was his
Answer20 where he claimed that petitioner had no cause of action against him. According to him, he left
for abroad and stayed there for a long time "[w]ithin the first one hundred twenty (120) days of the three
hundred days immediately preceding March 25, 1976" and that he only came to know about the birth of
Rica and Rina when the twins introduced themselves to him seventeen years later. In order not to
antagonize the two, respondent Federico (father) claimed he did not tell them that he could not be their
father. Even assuming that Rica and Rina are, indeed, his daughters, he alleged that he could not give
them the support they were demanding as he was only making P40,000.00 a month.
Finding sufficient ground in the motion filed by respondent Federico (father), the trial court lifted its Order
dated 16 June 1994 and admitted his Answer.21

In the meantime, on 25 April 1994, petitioner filed an Urgent Motion to Set Application for Support
Pendente Lite for Hearing because Rica and Rina both badly needed immediate financial resources for
their education.22 This Motion was opposed by respondent Francisco (grandfather). 23 After both parties
submitted supplemental pleadings to bolster their respective positions, the trial court resolved the motion
in an Order dated 12 September 1995 in this wise:
WHEREFORE, in the light of the foregoing considerations, respondents are hereby directed to provide a
monthly support (pendente lite) of P5,000.00 each or a total of P10,000.00 for the education of Rebecca
Angela and Regina Isabel Delgado to be delivered within the first five days of each month without need of
demand.24
Unsatisfied with the Order of the trial court, petitioner brought the case to the Court of Appeals via Petition
for Certiorari. The Court of Appeals affirmed the holding of the trial court and disposed the petition in the
following manner:
WHEREFORE, the petition for certiorari is hereby DISMISSED and the Order of the lower court dated
September 12, 1995 is hereby AFFIRMED. 25
Petitioners Motion for Reconsideration was denied through the Resolution of the Court of Appeals dated
16 May 1996.26
Petitioner is now before this Court claiming that the Decision of the Court of Appeals was tainted with the
following errors:
RESPONDENT COURT OF APPEALS ERRED IN CONCLUDING THAT RESPONDENT JUDGE DID
NOT COMMIT GRAVE ABUSE OF DISCRETION IN FIXING THE AMOUNT OF MONTHLY SUPPORT
PENDENTE LITE GRANTED TO PETITIONERS CHILDREN AT A MEASLEY P5,000.00 PER CHILD.
I.
RESPONDENT COURT IGNORED EVIDENCE ON RECORD OF THE FINANCIAL INCAPACITY OF
RICA AND RINAS PARENTS IN DEFAULT OF WHOM THE OBLIGATION TO GIVE SUPPORT
DEVOLVES ON THE GRANDFATHER.
II.
IT BEING ESTABLISHED THAT THE PERSON OBLIGED TO GIVE SUPPORT GRANDFATHER DON
PACO IS UNDOUBTEDLY CAPABLE OF GIVING THE AMOUNT DEMANDED, RESPONDENT
COURT ERRED IN NOT HOLDING THAT RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF
DISCRETION IN FIXING AN AMOUNT OF SUPPORT PENDENTE LITE THAT IS OBVIOUSLY
INADEQUATE TO SUPPORT THE EDUCATIONAL REQUIREMENTS OF THE RECIPIENTS. 27
At the time of the filing of the present Petition, it is alleged that Rica had already entered Rutgers
University in New Jersey with a budget of US$12,500.00 for academic year 1994-1995. She was able to
obtain a tuition fee grant of US$1,190.00 and a Federal Stafford loan from the US government in the
amount of US$2,615.00.28 In order to defray the remaining balance of Ricas education for said school
year, petitioner claims that she had to secure a loan under the Federal Direct Student Loan Program.
Meanwhile, Rina entered CW Post, Long Island University, where she was expected to spend
US$20,000.00 for the school year 1994-1995. She was given a financial grant of US$6,000.00, federal

work study assistance of US$2,000.00, and a Federal Stafford loan of US$2,625.00. 29 Again, petitioner
obtained a loan to cover the remainder of Rinas school budget for the year.
Petitioner concedes that under the law, the obligation to furnish support to Rica and Rina should be first
imposed upon their parents. She contends, however, that the records of this case demonstrate her as well
as respondent Federico (father)s inability to give the support needed for Rica and Rinas college
education. Consequently, the obligation to provide support devolves upon respondent Francisco
(grandfather) being the grandfather of Rica and Rina.
Petitioner also maintains that as respondent Francisco (grandfather) has the financial resources to help
defray the cost of Rica and Rinas schooling, the Court of Appeals then erred in sustaining the trial courts
Order directing respondent Federico (father) to pay Rica and Rina the amount of award P5,000.00 each
as monthly support pendente lite.
On the other hand, respondent Francisco (grandfather) argues that the trial court correctly declared that
petitioner and respondent Federico (father) should be the ones to provide the support needed by their
twin daughters pursuant to Article 199 of the Family Code. He also maintains that aside from the financial
package availed of by Rica and Rina in the form of state tuition aid grant, work study program and federal
student loan program, petitioner herself was eligible for, and had availed herself of, the federal parent loan
program based on her income and properties in the USA. He, likewise, insists that assuming he could be
held liable for support, he has the option to fulfill the obligation either by paying the support or receiving
and maintaining in the dwelling here in the Philippines the person claiming support. 30 As an additional
point to be considered by this Court, he posits the argument that because petitioner and her twin
daughters are now US citizens, they cannot invoke the Family Code provisions on support as "[l]aws
relating to family rights and duties, or to the status, condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living abroad." 31
Respondent Federico (father), for his part, continues to deny having sired Rica and Rina by reiterating the
grounds he had previously raised before the trial court. Like his father, respondent Federico (father)
argues that assuming he is indeed the father of the twin sisters, he has the option under the law as to how
he would provide support. Lastly, he assents with the declaration of the trial court and the Court of
Appeals that the parents of a child should primarily bear the burden of providing support to their offspring.
The petition is meritorious.
As a preliminary matter, we deem it necessary to briefly discuss the essence of support pendente lite. The
pertinent portion of the Rules of Court on the matter provides:
Rule 61
SUPPORT PENDENTE LITE
SECTION 1. Application.- At the commencement of the proper action or proceeding, or at any time prior to
the judgment or final order, a verified application for support pendente lite may be filed by any party
stating the grounds for the claim and the financial conditions of both parties, and accompanied by
affidavits, depositions or other authentic documents in support thereof.
xxxx
SEC. 4. Order.- The court shall determine provisionally the pertinent facts, and shall render such orders
as justice and equity may require, having due regard to the probable outcome of the case and such other
circumstances as may aid in the proper resolution of the question involved. If the application is granted,

the court shall fix the amount of money to be provisionally paid or such other forms of support as should
be provided, taking into account the necessities of the applicant and the resources or means of the
adverse party, and the terms of payment or mode for providing the support. If the application is denied,
the principal case shall be tried and decided as early as possible.
Under this provision, a court may temporarily grant support pendente lite prior to the rendition of judgment
or final order. Because of its provisional nature, a court does not need to delve fully into the merits of the
case before it can settle an application for this relief. All that a court is tasked to do is determine the kind
and amount of evidence which may suffice to enable it to justly resolve the application. It is enough that
the facts be established by affidavits or other documentary evidence appearing in the
record.32lavvphi1.net
After the hearings conducted on this matter as well as the evidence presented, we find that petitioner was
able to establish, by prima facie proof, the filiation of her twin daughters to private respondents and the
twins entitlement to support pendente lite. In the words of the trial court
By and large, the status of the twins as children of Federico (father) cannot be denied. They had
maintained constant communication with their grandfather Francisco (grandfather). As a matter of fact,
respondent Francisco (grandfather) admitted having wrote several letters to Rica and Rina (Exhs. A, B, C,
D, E, F, G, G-1 to G-30). In the said letters, particularly at the bottom thereof, respondent Francisco
(grandfather) wrote the names of Rica and Rina Delgado. He therefore was very well aware that they
bear the surname Delgado. Likewise, he referred to himself in his letters as either "Lolo Paco" or "Daddy
Paco." In his letter of October 13, 1989 (Exh. G-21), he said "as the grandfather, am extending a financial
help of US$1,000.00." On top of this, respondent Federico (father) even gave the twins a treat to
Hongkong during their visit to the Philippines. Indeed, respondents, by their actuations, have shown
beyond doubt that the twins are the children of Federico (father). 33
Having addressed the issue of the propriety of the trial courts grant of support pendente lite in favor of
Rica and Rina, the next question is who should be made liable for said award.
The pertinent provision of the Family Code on this subject states:
ART. 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the
following persons in the order herein provided:
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree; and
(4) The brothers and sisters.
An eminent author on the subject explains that the obligation to give support rests principally on those
more closely related to the recipient. However, the more remote relatives may be held to shoulder the
responsibility should the claimant prove that those who are called upon to provide support do not have the
means to do so.34
In this case, both the trial court and the Court of Appeals held respondent Federico (father) liable to
provide monthly support pendente lite in the total amount of P10,000.00 by taking into consideration his

supposed income ofP30,000.00 to P40,000.00 per month. We are, however, unconvinced as to the
veracity of this ground relied upon by the trial court and the Court of Appeals.
It is a basic procedural edict that questions of fact cannot be the proper subject of a petition for review
under Rule 45 of the 1997 Rules of Civil Procedure. The rule finds a more stringent application where the
Court of Appeals upholds the findings of fact of the trial court; in such a situation, this Court, as the final
arbiter, is generally bound to adopt the facts as determined by the appellate and the lower courts. This
rule, however, is not ironclad as it admits of the following recognized exceptions: "(1) when the findings
are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly
mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is
based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in making its
findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee; (7) when the findings are contrary to that of the trial
court; (8) when the findings are conclusions without citation of specific evidence on which they are based;
(9) when the facts set forth in the petition as well as in the petitioners main and reply briefs are not
disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of
evidence and contradicted by the evidence on record; and (11) when the Court of Appeals manifestly
overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a
different conclusion."35 The case at bar falls within the seventh and eleventh exceptions.
The trial court gave full credence to respondent Federico (father)s allegation in his Answer 36 and his
testimony37 as to the amount of his income. We have, however, reviewed the records of this case and
found them bereft of evidence to support his assertions regarding his employment and his earning.
Notably, he was even required by petitioners counsel to present to the court his income tax return and yet
the records of this case do not bear a copy of said document. 38 This, to our mind, severely undermines
the truthfulness of respondent Federico (father)s assertion with respect to his financial status and
capacity to provide support to Rica and Rina.
In addition, respondent Francisco (grandfather) himself stated in the witness stand that as far as he knew,
his son, respondent Federico (father) did not own anything
"Atty. Lopez:
I have here another letter under the letter head of Mr. & Mrs. Dany Mangonon, dated October 19, 1991
addressed to Mr. Francisco (grandfather) Delgado signed by "sincerely, Danny Mangonon, can you
remember."
xxxx
WITNESS:
A: I do remember this letter because it really irritated me so much that I threw it away in a waste basket. It
is a very demanding letter, that is what I do not like at all.
ATTY. LOPEZ:
Q: It is stated in this letter that "I am making this request to you and not to your son, Rico, for reasons we
both are aware of." Do you know what reason that is?

A: Yes. The reason is that my son do not have fix employment and do not have fix salary and income and
they want to depend on the lolo.
x x x xlavvphi1.net
Q: Would you have any knowledge if Federico (father) owns a house and lot?
A: Not that I know. I do not think he has anything.
Q: How about a car?
A: Well, his car is owned by my company.39
Respondent Federico (father) himself admitted in court that he had no property of his own, thus:
Q: You also mentioned that you are staying at Mayflower Building and you further earlier testified that this
building belongs to Citadel Corporation. Do you confirm that?
A: Yes, sir.
Q: What car are you driving, Mr. Witness?
A: I am driving a lancer, sir.
Q: What car, that registered in the name of the corporation?
A: In the corporation, sir.
Q: What corporation is that?
A: Citadel Commercial, Inc., sir.
Q: What properties, if any, are registered in your name, do you have any properties, Mr. Witness?
A: None, sir."40 (Emphasis supplied.)
Meanwhile, respondent Francisco (grandfather) asserts that petitioner possessed the capacity to give
support to her twin daughters as she has gainful employment in the USA. He even went as far as to state
that petitioners income abroad, when converted to Philippine peso, was much higher than that received
by a trial court judge here in the Philippines. In addition, he claims that as she qualified for the federal
parent loan program, she could very well support the college studies of her daughters.
We are unconvinced. Respondent Francisco (grandfather)s assertion that petitioner had the means to
support her daughters education is belied by the fact that petitioner was even forced by her financial
status in the USA to secure the loan from the federal government. If petitioner were really making enough
money abroad, she certainly would not have felt the need to apply for said loan. The fact that petitioner
was compelled to take out a loan is enough indication that she did not have enough money to enable her
to send her daughters to college by herself. Moreover, even Rica and Rina themselves were forced by the
circumstances they found themselves in to secure loans under their names so as not to delay their
entrance to college.

There being prima facie evidence showing that petitioner and respondent Federico (father) are the
parents of Rica and Rina, petitioner and respondent Federico (father) are primarily charged to support
their childrens college education. In view however of their incapacities, the obligation to furnish said
support should be borne by respondent Francisco (grandfather). Under Article 199 of the Family Code,
respondent Francisco (grandfather), as the next immediate relative of Rica and Rina, is tasked to give
support to his granddaughters in default of their parents. It bears stressing that respondent Francisco
(grandfather) is the majority stockholder and Chairman of the Board of Directors of Citadel Commercial,
Incorporated, which owns and manages twelve gasoline stations, substantial real estate, and is engaged
in shipping, brokerage and freight forwarding. He is also the majority stockholder and Chairman of the
Board of Directors of Citadel Shipping which does business with Hyundai of Korea. Apart from these, he
also owns the Citadel Corporation which, in turn, owns real properties in different parts of the country. He
is likewise the Chairman of the Board of Directors of Isla Communication Co. and he owns shares of
stocks of Citadel Holdings. In addition, he owns real properties here and abroad. 41 It having been
established that respondent Francisco (grandfather) has the financial means to support his
granddaughters education, he, in lieu of petitioner and respondent Federico (father), should be held liable
for support pendente lite.
Anent respondent Francisco (grandfather) and Federico (father)s claim that they have the option under
the law as to how they could perform their obligation to support Rica and Rina, respondent Francisco
(grandfather) insists that Rica and Rina should move here to the Philippines to study in any of the local
universities. After all, the quality of education here, according to him, is at par with that offered in the USA.
The applicable provision of the Family Code on this subject provides:
Art. 204. The person obliged to give support shall have the option to fulfill the obligation either by paying
the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to
receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle
thereto.
Under the abovecited provision, the obligor is given the choice as to how he could dispense his obligation
to give support. Thus, he may give the determined amount of support to the claimant or he may allow the
latter to stay in the family dwelling. The second option cannot be availed of in case there are
circumstances, legal or moral, which should be considered.
In this case, this Court believes that respondent Francisco (grandfather) could not avail himself of the
second option. From the records, we gleaned that prior to the commencement of this action, the
relationship between respondent Francisco (grandfather), on one hand, and petitioner and her twin
daughters, on the other, was indeed quite pleasant. The correspondences exchanged among them
expressed profound feelings of thoughtfulness and concern for one anothers well-being. The
photographs presented by petitioner as part of her exhibits presented a seemingly typical family
celebrating kinship. All of these, however, are now things of the past. With the filing of this case, and the
allegations hurled at one another by the parties, the relationships among the parties had certainly been
affected. Particularly difficult for Rica and Rina must be the fact that those who they had considered and
claimed as family denied having any familial relationship with them. Given all these, we could not see
Rica and Rina moving back here in the Philippines in the company of those who have disowned them.
Finally, as to the amount of support pendente lite, we take our bearings from the provision of the law
mandating the amount of support to be proportionate to the resources or means of the giver and to the
necessities of the recipient.42 Guided by this principle, we hold respondent Francisco (grandfather) liable
for half of the amount of school expenses incurred by Rica and Rina as support pendente lite. As
established by petitioner, respondent Francisco (grandfather) has the financial resources to pay this
amount given his various business endeavors.

Considering, however, that the twin sisters may have already been done with their education by the time
of the promulgation of this decision, we deem it proper to award support pendente lite in arrears43 to be
computed from the time they entered college until they had finished their respective studies.
The issue of the applicability of Article 15 of the Civil Code on petitioner and her twin daughters raised by
respondent Francisco (grandfather) is best left for the resolution of the trial court. After all, in case it would
be resolved that Rica and Rina are not entitled to support pendente lite, the court shall then order the
return of the amounts already paid with legal interest from the dates of actual payment. 44
WHEREFORE, premises considered, this Petition is PARTIALLY GRANTED. The Decision of the Court of
Appeals dated 20 March 1996 and Resolution dated 16 May 1996 affirming the Order dated 12
September 1995 of the Regional Trial Court, Branch 149, Makati, fixing the amount of support pendente
lite to P5,000.00 for Rebecca Angela and Regina Isabel, are hereby MODIFIED in that respondent
Francisco (grandfather) Delgado is hereby held liable for support pendente lite in the amount to be
determined by the trial court pursuant to this Decision. Let the records of this case be remanded to the
trial court for the determination of the proper amount of support pendente lite for Rebecca Angela and
Regina Isabel as well as the arrearages due them in accordance with this Decision within ten (10) days
from receipt hereof. Concomitantly, the trial court is directed to proceed with the trial of the main case and
the immediate resolution of the same with deliberate dispatch. The RTC Judge, Branch 149, Makati, is
further directed to submit a report of his compliance with the directive regarding the support pendente lite
within ten (10) days from compliance thereof.
SO ORDERED.

October 30, 2009

SPOUSES PRUDENCIO and FILOMENA LIM, Petitioners,
vs.
MA. CHERYL S. LIM, for herself and on behalf of her minor children LESTER EDWARD S. LIM,
CANDICE GRACE S. LIM, and MARIANO S. LIM, III, Respondents.
DECISION
CARPIO, J.:
The Case
For review1 is the Decision2 of the Court of Appeals, dated 28 April 2003, ordering petitioners Prudencio
and Filomena Lim (petitioners) to provide legal support to respondents Cheryl, Lester Edward, Candice
Grace and Mariano III, all surnamed Lim (respondents).
The Facts
In 1979, respondent Cheryl S. Lim (Cheryl) married Edward Lim (Edward), son of petitioners. Cheryl bore
Edward three children, respondents Lester Edward, Candice Grace and Mariano III. Cheryl, Edward and

their children resided at the house of petitioners in Forbes Park, Makati City, together with Edwards ailing
grandmother, Chua Giak and her husband Mariano Lim (Mariano). Edwards family business, which
provided him with a monthly salary of P6,000, shouldered the family expenses. Cheryl had no steady
source of income.
On 14 October 1990, Cheryl abandoned the Forbes Park residence, bringing the children with her (then
all minors), after a violent confrontation with Edward whom she caught with the in-house midwife of Chua
Giak in what the trial court described "a very compromising situation." 3
Cheryl, for herself and her children, sued petitioners, Edward, Chua Giak and Mariano (defendant
(respondent)s) in the Regional Trial Court of Makati City, Branch 140 (trial court) for support. The trial
court ordered Edward to provide monthly support of P6,000 pendente lite.4
The Ruling of the Trial Court
On 31 January 1996, the trial court rendered judgment ordering Edward and petitioners to "jointly"
provideP40,000 monthly support to respondents, with Edward shouldering P6,000 and petitioners the
balance of P34,000 subject to Chua Giaks subsidiary liability.5
The defendant (respondent)s sought reconsideration, questioning their liability. The trial court, while
denying reconsideration, clarified that petitioners and Chua Giak were held jointly liable with Edward
because of the latters "inability x x x to give sufficient support x x x." 6
Petitioners appealed to the Court of Appeals assailing, among others, their liability to support
respondents. Petitioners argued that while Edwards income is insufficient, the law itself sanctions its
effects by providing that legal support should be "in keeping with the financial capacity of the family"
under Article 194 of the Civil Code, as amended by Executive Order No. 209 (The Family Code of the
Philippines).7
The Ruling of the Court of Appeals
In its Decision dated 28 April 2003, the Court of Appeals affirmed the trial court. On the issue material to
this appeal, that is, whether there is basis to hold petitioners, as Edwards parents, liable with him to
support respondents, the Court of Appeals held:
The law on support under Article 195 of the Family Code is clear on this matter. Parents and their
legitimate children are obliged to mutually support one another and this obligation extends down to the
legitimate grandchildren and great grandchildren.
In connection with this provision, Article 200 paragraph (3) of the Family Code clearly provides that should
the person obliged to give support does not have sufficient means to satisfy all claims, the other persons
enumerated in Article 199 in its order shall provide the necessary support. This is because the closer the
relationship of the relatives, the stronger the tie that binds them. Thus, the obligation to support is
imposed first upon the shoulders of the closer relatives and only in their default is the obligation moved to
the next nearer relatives and so on.8
Petitioners sought reconsideration but the Court of Appeals denied their motion in the Resolution dated 12
April 2004.
Hence, this petition.

The Issue
The issue is whether petitioners are concurrently liable with Edward to provide support to respondents.
The Ruling of the Court
We rule in the affirmative. However, we modify the appealed judgment by limiting petitioners liability to
the amount of monthly support needed by respondents Lester Edward, Candice Grace and Mariano III
only.
Petitioners Liable to Provide Support but only to their Grandchildren
By statutory9 and jurisprudential mandate,10 the liability of ascendants to provide legal support to their
descendants is beyond cavil. Petitioners themselves admit as much they limit their petition to the narrow
question of when their liability is triggered, not if they are liable. Relying on provisions 11 found in Title IX of
the Civil Code, as amended, on Parental Authority, petitioners theorize that their liability is activated only
upon defaultof parental authority, conceivably either by its termination12 or suspension13 during the
childrens minority. Because at the time respondents sued for support, Cheryl and Edward exercised
parental authority over their children,14 petitioners submit that the obligation to support the latters
offspring ends with them.
Neither the text of the law nor the teaching of jurisprudence supports this severe constriction of the scope
of familial obligation to give support. In the first place, the governing text are the relevant provisions on
Support, not the provisions in Title IX on Parental Authority. While both areas share a common ground in
that parental authority embraces the obligation to provide legal support, 15 they differ in other concerns
including the duration of the obligation and its concurrence among relatives of differing degrees.16 Thus,
although the obligation to provide support arising from parental authority ends upon the emancipation of
the child,17 the same obligation arising from spousal and general familial ties ideally lasts during the
obligee's lifetime.. Also, while parental authority under Title IX (and the correlative parental rights) pertains
to parents, passing to ascendants only upon its termination or suspension, the obligation to provide legal
support passes on to ascendants not only upon default of the parents but also for the latters inability to
provide sufficient support. As we observed in another case raising the ancillary issue of an ascendants
obligation to give support in light of the fathers sufficient means:
Professor Pineda is of the view that grandchildren cannot demand support directly from their
grandparents if they have parents (ascendants of nearest degree) who are capable of supporting them.
This is so because we have to follow the order of support under Art. 199. We agree with this view.
xxxx
There is no showing that private respondent is without means to support his son; neither is there any
evidence to prove that petitioner, as the paternal grandmother, was willing to voluntarily provide for her
grandson's legal support. x x x18 (Emphasis supplied; internal citations omitted)
Here, there is no question that Cheryl is unable to discharge her obligation to provide sufficient legal
support to her children, then all school-bound. It is also undisputed that the amount of support Edward is
able to give to respondents, P6,000 a month, is insufficient to meet respondents basic needs. This
inability of Edward and Cheryl to sufficiently provide for their children shifts a portion of their obligation to
the ascendants in the nearest degree, both in the paternal (petitioners) and maternal 19 lines, following the
ordering in Article 199. To hold otherwise, and thus subscribe to petitioners theory, is to sanction the
anomalous scenario of tolerating extreme material deprivation of children because of parental inability to

give adequate support even if ascendants one degree removed are more than able to fill the
void.1avvphi1
However, petitioners partial concurrent obligation extends only to their descendants as this word is
commonly understood to refer to relatives, by blood of lower degree. As petitioners grandchildren by
blood, only respondents Lester Edward, Candice Grace and Mariano III belong to this category. Indeed,
Cheryls right to receive support from the Lim family extends only to her husband Edward, arising from
their marital bond.20Unfortunately, Cheryls share from the amount of monthly support the trial court
awarded cannot be determined from the records. Thus, we are constrained to remand the case to the trial
court for this limited purpose.21
Petitioners Precluded from Availing of the Alternative Option Under
Article 204 of the Civil Code, as Amended
As an alternative proposition, petitioners wish to avail of the option in Article 204 of the Civil Code, as
amended, and pray that they be allowed to fulfill their obligation by maintaining respondents at petitioners
Makati residence. The option is unavailable to petitioners.
The application of Article 204 which provides that
The person obliged to give support shall have the option to fulfill the obligation either by paying the
allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to
receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle
thereto. (Emphasis supplied)
is subject to its exception clause. Here, the persons entitled to receive support are petitioners
grandchildren and daughter-in-law. Granting petitioners the option in Article 204 will secure to the
grandchildren a well-provided future; however, it will also force Cheryl to return to the house which, for
her, is the scene of her husbands infidelity. While not rising to the level of a legal obstacle, as indeed,
Cheryls charge against Edward for concubinage did not prosper for insufficient evidence, her steadfast
insistence on its occurrence amounts to amoral impediment bringing the case within the ambit of the
exception clause of Article 204, precluding its application.
WHEREFORE, we DENY the petition. We AFFIRM the Decision of the Court of Appeals, dated 28 April
2003, and its Resolution dated 12 April 2004 with the MODIFICATION that petitioners Prudencio and
Filomena Lim are liable to provide support only to respondents Lester Edward, Candice Grace and
Mariano III, all surnamed Lim. WeREMAND the case to the Regional Trial Court of Makati City, Branch
140, for further proceedings consistent with this ruling.
SO ORDERED.

December 15, 2010

CHERRYL B. DOLINA, Petitioner,
vs.
GLENN D. VALLECERA, Respondent.

DECISION
ABAD, J.:
This case is about a mothers claim for temporary support of an unacknowledged child, which she sought
in an action for the issuance of a temporary protection order that she brought against the supposed father.
The Facts and the Case
In February 2008 petitioner Cherryl B. Dolina filed a petition with prayer for the issuance of a temporary
protection order against respondent Glenn D. Vallecera before the Regional Trial Court (RTC) of Tacloban
City in P.O. 2008-02-071 for alleged woman and child abuse under Republic Act (R.A.) 9262. 2 In filling out
the blanks in thepro-forma complaint, Dolina added a handwritten prayer for financial support3 from
Vallecera for their supposed child. She based her prayer on the latters Certificate of Live Birth which
listed Vallecera as the childs father. The petition also asked the RTC to order Philippine Airlines,
Valleceras employer, to withhold from his pay such amount of support as the RTC may deem appropriate.
Vallecera opposed the petition. He claimed that Dolinas petition was essentially one for financial support
rather than for protection against woman and child abuses; that he was not the childs father; that the
signature appearing on the childs Certificate of Live Birth is not his; that the petition is a harassment suit
intended to force him to acknowledge the child as his and give it financial support; and that Vallecera has
never lived nor has been living with Dolina, rendering unnecessary the issuance of a protection order
against him.
On March 13, 20084 the RTC dismissed the petition after hearing since no prior judgment exists
establishing the filiation of Dolinas son and granting him the right to support as basis for an order to
compel the giving of such support. Dolina filed a motion for reconsideration but the RTC denied it in its
April 4, 2008 Order,5 with an admonition that she first file a petition for compulsory recognition of her child
as a prerequisite for support. Unsatisfied, Dolina filed the present petition for review directly with this
Court.
The Issue Presented
The sole issue presented in this case is whether or not the RTC correctly dismissed Dolinas action for
temporary protection and denied her application for temporary support for her child.
The Courts Ruling
Dolina evidently filed the wrong action to obtain support for her child. The object of R.A. 9262 under which
she filed the case is the protection and safety of women and children who are victims of abuse or
violence.6 Although the issuance of a protection order against the respondent in the case can include the
grant of legal support for the wife and the child, this assumes that both are entitled to a protection order
and to legal support.
Dolina of course alleged that Vallecera had been abusing her and her child. But it became apparent to the
RTC upon hearing that this was not the case since, contrary to her claim, neither she nor her child ever
lived with Vallecera. As it turned out, the true object of her action was to get financial support from
Vallecera for her child, her claim being that he is the father. He of course vigorously denied this.

To be entitled to legal support, petitioner must, in proper action, first establish the filiation of the child, if
the same is not admitted or acknowledged. Since Dolinas demand for support for her son is based on her
claim that he is Valleceras illegitimate child, the latter is not entitled to such support if he had not
acknowledged him, until Dolina shall have proved his relation to him. 7 The childs remedy is to file through
her mother a judicial action against Vallecera for compulsory recognition. 8 If filiation is beyond question,
support follows as matter of obligation.9 In short, illegitimate children are entitled to support and
successional rights but their filiation must be duly proved. 10
Dolinas remedy is to file for the benefit of her child an action against Vallecera for compulsory recognition
in order to establish filiation and then demand support. Alternatively, she may directly file an action for
support, where the issue of compulsory recognition may be integrated and resolved. 11
It must be observed, however, that the RTC should not have dismissed the entire case based solely on
the lack of any judicial declaration of filiation between Vallecera and Dolinas child since the main issue
remains to be the alleged violence committed by Vallecera against Dolina and her child and whether they
are entitled to protection. But of course, this matter is already water under the bridge since Dolina failed to
raise this error on review. This omission lends credence to the conclusion of the RTC that the real
purpose of the petition is to obtain support from Vallecera.
While the Court is mindful of the best interests of the child in cases involving paternity and filiation, it is
just as aware of the disturbance that unfounded paternity suits cause to the privacy and peace of the
putative fathers legitimate family.12 Vallecera disowns Dolinas child and denies having a hand in the
preparation and signing of its certificate of birth. This issue has to be resolved in an appropriate case.
ACCORDINGLY, the Court DENIES the petition and AFFIRMS the Regional Trial Court of Tacloban Citys
Order dated March 13, 2008 that dismissed petitioner Cherryl B. Dolinas action in P.O. 2008-02-07, and
Order dated April 4, 2008, denying her motion for reconsideration dated March 28, 2008.
SO ORDERED.

June 5, 2013
SUSAN LIM-LUA, Petitioner,
vs.
DANILO Y. LUA, Respondent.
DECISION
VILLARAMA, JR., J.:
In this petition for review on certiorari under Rule 45, petitioner seeks to set aside the Decision 1 dated
April 20, 2006 and Resolution2 dated October 26, 2006 of the Court of Appeals (CA) dismissing her
petition for contempt (CA-G.R. SP No. 01154) and granting respondent's petition for certiorari (CA-G.R.
SP No. 01315).
The factual background is as follows:

On September 3, 2003,3 petitioner Susan Lim-Lua filed an action for the declaration of nullity of her
marriage with respondent Danilo Y. Lua, docketed as Civil Case No. CEB-29346 of the Regional Trial
Court (RTC) of Cebu City, Branch 14.
In her prayer for support pendente lite for herself and her two children, petitioner sought the amount
ofP500,000.00 as monthly support, citing respondents huge earnings from salaries and dividends in
several companies and businesses here and abroad.4
After due hearing, Judge Raphael B. Yrastorza, Sr. issued an Order 5 dated March 31, 2004 granting
support pendente lite, as follows:
From the evidence already adduced by the parties, the amount of Two Hundred Fifty (P250,000.00)
Thousand Pesos would be sufficient to take care of the needs of the plaintiff. This amount excludes the
One hundred thirty-five (P135,000.00) Thousand Pesos for medical attendance expenses needed by
plaintiff for the operation of both her eyes which is demandable upon the conduct of such operation. The
amounts already extended to the two (2) children, being a commendable act of defendant (respondent),
should be continued by him considering the vast financial resources at his disposal.
According to Art. 203 of the Family Code, support is demandable from the time plaintiff needed the said
support but is payable only from the date of judicial demand. Since the instant complaint was filed on 03
September 2003, the amount of Two Hundred Fifty (P250,000.00) Thousand should be paid by defendant
(respondent) to plaintiff retroactively to such date until the hearing of the support pendente
lite. P250,000.00 x 7 corresponding to the seven (7) months that lapsed from September, 2003 to March
2004 would tantamount to a total of One Million Seven Hundred Fifty (P1,750,000.00) Thousand Pesos.
Thereafter, starting the month of April 2004, until otherwise ordered by this Court, defendant (respondent)
is ordered to pay a monthly support of Two Hundred Fifty Thousand (P250,000.00) Pesos payable within
the first five (5) days of each corresponding month pursuant to the third paragraph of Art. 203 of the
Family Code of the Philippines. The monthly support of P250,000.00 is without prejudice to any increase
or decrease thereof that this Court may grant plaintiff as the circumstances may warrant i.e. depending on
the proof submitted by the parties during the proceedings for the main action for support. 6
Respondent filed a motion for reconsideration,7 asserting that petitioner is not entitled to spousal support
considering that she does not maintain for herself a separate dwelling from their children and respondent
has continued to support the family for their sustenance and well-being in accordance with familys social
and financial standing. As to the P250,000.00 granted by the trial court as monthly support pendente lite,
as well as theP1,750,000.00 retroactive support, respondent found it unconscionable and beyond the
intendment of the law for not having considered the needs of the respondent.
In its May 13, 2004 Order, the trial court stated that the March 31, 2004 Order had become final and
executory since respondents motion for reconsideration is treated as a mere scrap of paper for violation
of the threeday notice period under Section 4, Rule 15 of the 1997 Rules of Civil Procedure, as amended,
and therefore did not interrupt the running of the period to appeal. Respondent was given ten (10) days to
show cause why he should not be held in contempt of the court for disregarding the March 31, 2004 order
granting support pendente lite.8
His second motion for reconsideration having been denied, respondent filed a petition for certiorari in the
CA.
On April 12, 2005, the CA rendered its Decision,9 finding merit in respondents contention that the trial
court gravely abused its discretion in granting P250,000.00 monthly support to petitioner without evidence
to prove his actual income. The said court thus decreed:

WHEREFORE, foregoing premises considered, this petition is given due course. The assailed
Orders dated March 31, 2004, May 13, 2004, June 4, 2004 and June 18, 2004 of the Regional
Trial Court, Branch 14, Cebu City issued in Civil Case No. CEB No. 29346 entitled "Susan Lim
Lua versus Danilo Y. Lua" are hereby nullified and set aside and instead a new one is entered
ordering herein petitioner:
a) to pay private respondent a monthly support pendente lite of P115,000.00 beginning
the month of April 2005 and every month thereafter within the first five (5) days thereof;
b) to pay the private respondent the amount of P115,000.00 a month multiplied by the
number of months starting from September 2003 until March 2005 less than the amount
supposedly given by petitioner to the private respondent as her and their two (2) children
monthly support; and
c) to pay the costs.
SO ORDERED.10
Neither of the parties appealed this decision of the CA. In a Compliance 11 dated June 28, 2005,
respondent attached a copy of a check he issued in the amount of P162,651.90 payable to petitioner.
Respondent explained that, as decreed in the CA decision, he deducted from the amount of support in
arrears (September 3, 2003 to March 2005) ordered by the CA -- P2,185,000.00 -- plus P460,000.00
(April, May, June and July 2005), totalingP2,645,000.00, the advances given by him to his children and
petitioner in the sum of P2,482,348.16 (with attached photocopies of receipts/billings).
In her Comment to Compliance with Motion for Issuance of a Writ of Execution, 12 petitioner asserted that
none of the expenses deducted by respondent may be chargeable as part of the monthly support
contemplated by the CA in CA-G.R. SP No. 84740.
On September 27, 2005, the trial court issued an Order 13 granting petitioners motion for issuance of a writ
of execution as it rejected respondents interpretation of the CA decision. Respondent filed a motion for
reconsideration and subsequently also filed a motion for inhibition of Judge Raphael B. Yrastorza, Sr. On
November 25, 2005, Judge Yrastorza, Sr. issued an Order 14 denying both motions.
WHEREFORE, in view of the foregoing premises, both motions are DENIED. Since a second
motion for reconsideration is prohibited under the Rules, this denial has attained finality; let,
therefore, a writ of execution be issued in favor of plaintiff as against defendant (respondent) for
the accumulated support in arrears pendente lite.
Notify both parties of this Order.
SO ORDERED.15
Since respondent still failed and refused to pay the support in arrears pendente lite, petitioner filed in the
CA a Petition for Contempt of Court with Damages, docketed as CA-G.R. SP No. 01154 ("Susan Lim Lua
versus Danilo Y. Lua"). Respondent, on the other hand, filed CA-G.R. SP No. 01315, a Petition for
Certiorari under Rule 65 of the Rules of Court ("Danilo Y. Lua versus Hon. Raphael B. Yrastorza, Sr., in
his capacity as Presiding Judge of Regional Trial Court of Cebu, Branch 14, and Susan Lim Lua"). The
two cases were consolidated.

By Decision dated April 20, 2006, the CA set aside the assailed orders of the trial court, as follows:
WHEREFORE, judgment is hereby rendered:
a) DISMISSING, for lack of merit, the case of Petition for Contempt of Court with
Damages filed by Susan Lim Lua against Danilo Y. Lua with docket no. SP. CA-GR No.
01154;
b) GRANTING Danilo Y. Luas Petition for Certiorari docketed as SP. CA-GR No. 01315.
Consequently, the assailed Orders dated 27 September 2005 and 25 November 2005 of
the Regional Trial Court, Branch 14, Cebu City issued in Civil Case No. CEB-29346
entitled "Susan Lim Lua versus Danilo Y. Lua, are hereby NULLIFIED and SET ASIDE,
and instead a new one is entered:
i. ORDERING the deduction of the amount of PhP2,482,348.16 plus 946,465.64,
or a total of PhP3,428,813.80 from the current total support in arrears of Danilo Y.
Lua to his wife, Susan Lim Lua and their two (2) children;
ii. ORDERING Danilo Y. Lua to resume payment of his monthly support of
PhP115,000.00 pesos starting from the time payment of this amount was
deferred by him subject to the deductions aforementioned.
iii. DIRECTING the issuance of a permanent writ of preliminary injunction.
SO ORDERED.16
The appellate court said that the trial court should not have completely disregarded the expenses incurred
by respondent consisting of the purchase and maintenance of the two cars, payment of tuition fees, travel
expenses, and the credit card purchases involving groceries, dry goods and books, which certainly inured
to the benefit not only of the two children, but their mother (petitioner) as well. It held that respondents act
of deferring the monthly support adjudged in CA-G.R. SP No. 84740 was not contumacious as it was
anchored on valid and justifiable reasons. Respondent said he just wanted the issue of whether to deduct
his advances be settled first in view of the different interpretation by the trial court of the appellate courts
decision in CA-G.R. SP No. 84740. It also noted the lack of contribution from the petitioner in the joint
obligation of spouses to support their children.
Petitioner filed a motion for reconsideration but it was denied by the CA.
Hence, this petition raising the following errors allegedly committed by the CA:
I.
THE HONORABLE COURT ERRED IN NOT FINDING RESPONDENT GUILTY OF INDIRECT
CONTEMPT.
II.
THE HONORABLE COURT ERRED IN ORDERING THE DEDUCTION OF THE AMOUNT OF
PHP2,482,348.16 PLUS 946,465.64, OR A TOTAL OF PHP3,428,813.80 FROM THE CURRENT

TOTAL SUPPORT IN ARREARS OF THE RESPONDENT TO THE PETITIONER AND THEIR

CHILDREN.17
The main issue is whether certain expenses already incurred by the respondent may be deducted from
the total support in arrears owing to petitioner and her children pursuant to the Decision dated April 12,
2005 in CA-G.R. SP No. 84740.
The pertinent provision of the Family Code of the Philippines provides:
Article 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical
attendance, education and transportation, in keeping with the financial capacity of the family.
The education of the person entitled to be supported referred to in the preceding paragraph shall include
his schooling or training for some profession, trade or vocation, even beyond the age of majority.
Transportation shall include expenses in going to and from school, or to and from place of work.
(Emphasis supplied.)
Petitioner argues that it was patently erroneous for the CA to have allowed the deduction of the value of
the two cars and their maintenance costs from the support in arrears, as these items are not
indispensable to the sustenance of the family or in keeping them alive. She points out that in the Decision
in CA-G.R. SP No. 84740, the CA already considered the said items which it deemed chargeable to
respondent, while the monthly support pendente lite (P115,000.00) was fixed on the basis of the
documentary evidence of respondents alleged income from various businesses and petitioners
testimony that she needed P113,000.00 for the maintenance of the household and other miscellaneous
expenses excluding the P135,000.00 medical attendance expenses of petitioner.
Respondent, on the other hand, contends that disallowing the subject deductions would result in unjust
enrichment, thus making him pay for the same obligation twice. Since petitioner and the children resided
in one residence, the groceries and dry goods purchased by the children using respondents credit card,
totallingP594,151.58 for the period September 2003 to June 2005 were not consumed by the children
alone but shared with their mother. As to the Volkswagen Beetle and BMW 316i respondent bought for his
daughter Angelli Suzanne Lua and Daniel Ryan Lua, respectively, these, too, are to be considered
advances for support, in keeping with the financial capacity of the family. Respondent stressed that being
children of parents belonging to the upper-class society, Angelli and Daniel Ryan had never in their entire
life commuted from one place to another, nor do they eat their meals at "carinderias". Hence, the cars and
their maintenance are indispensable to the childrens day-to-day living, the value of which were properly
deducted from the arrearages in support pendente lite ordered by the trial and appellate courts.
As a matter of law, the amount of support which those related by marriage and family relationship is
generally obliged to give each other shall be in proportion to the resources or means of the giver and to
the needs of the recipient.18 Such support comprises everything indispensable for sustenance, dwelling,
clothing, medical attendance, education and transportation, in keeping with the financial capacity of the
family.
Upon receipt of a verified petition for declaration of absolute nullity of void marriage or for annulment of
voidable marriage, or for legal separation, and at any time during the proceeding, the court, motu proprio
or upon verified application of any of the parties, guardian or designated custodian, may temporarily grant
support pendente lite prior to the rendition of judgment or final order.19 Because of its provisional nature, a
court does not need to delve fully into the merits of the case before it can settle an application for this
relief. All that a court is tasked to do is determine the kind and amount of evidence which may suffice to

enable it to justly resolve the application. It is enough that the facts be established by affidavits or other
documentary evidence appearing in the record.20
In this case, the amount of monthly support pendente lite for petitioner and her two children was
determined after due hearing and submission of documentary evidence by the parties. Although the
amount fixed by the trial court was reduced on appeal, it is clear that the monthly support pendente lite
of P115,000.00 ordered by the CA was intended primarily for the sustenance of petitioner and her
children, e.g., food, clothing, salaries of drivers and house helpers, and other household expenses.
Petitioners testimony also mentioned the cost of regular therapy for her scoliosis and vitamins/medicines.
ATTY. ZOSA:
xxxx
Q How much do you spend for your food and your two (2) children every month?
A Presently, Sir?
ATTY. ZOSA:
Yes.
A For the food alone, I spend not over P40,000.00 to P50,000.00 a month for the food alone.
xxxx
ATTY. ZOSA:
Q What other expenses do you incur in living in that place?
A The normal household and the normal expenses for a family to have a decent living, Sir.
Q How much other expenses do you incur?
WITNESS:
A For other expenses, is around over a P100,000.00, Sir.
Q Why do you incur that much amount?
A For the clothing for the three (3) of us, for the vitamins and medicines. And also I am having a special
therapy to straighten my back because I am scoliotic. I am advised by the Doctor to hire a driver, but I
cannot still afford it now. Because my eyesight is not reliable for driving. And I still need another
househelp to accompany me whenever I go marketing because for my age, I cannot carry anymore heavy
loads.
xxxx
ATTY. FLORES:

xxxx
Q On the issue of the food for you and the two (2) children, you mentioned P40,000.00 to P50,000.00?
A Yes, for the food alone.
Q Okay, what other possible expenses that you would like to include in those two (2) items? You
mentioned of a driver, am I correct?
A Yes, I might need two (2) drivers, Sir for me and my children.
Q Okay. How much would you like possibly to pay for those two (2) drivers?
A I think P10,000.00 a month for one (1) driver. So I need two (2) drivers. And I need another househelp.
Q You need another househelp. The househelp nowadays would charge you something
between P3,000.00 toP4,000.00. Thats quite
A Right now, my househelp is receiving P8,000.00. I need another which I will give a compensation
of P5,000.00.
Q Other than that, do you still have other expenses?
A My clothing.
COURT:
How about the schooling for your children?
WITNESS:
A The schooling is shouldered by my husband, Your Honor.
COURT:
Everything?
A Yes, Your Honor.
xxxx
ATTY. FLORES:
Q Madam witness, let us talk of the present needs. x x x. What else, what specific need that you would
like to add so I can tell my client, the defendant (respondent).
WITNESS:

A I need to have an operation both of my eyes. I also need a special therapy for my back because I am
scoliotic, three (3) times a week.
Q That is very reasonable. [W]ould you care to please repeat that?
A Therapy for my scoliotic back and then also for the operation both of my eyes. And I am also taking
some vitamins from excel that will cost P20,000.00 a month.
Q Okay. Lets have piece by piece. Have you asked the Doctor how much would it cost you for the
operation of that scoliotic?
A Yes before because I was already due last year. Before, this eye will cost P60,000.00 and the other
eyesP75,000.00.
Q So for both eyes, you are talking of P60,000.00 plus P75,000.00 is P135,000.00?
A Yes.
xxxx
Q You talk of therapy?
A Yes.
Q So how much is that?
A Around P5,000.00 a week.21
As to the financial capacity of the respondent, it is beyond doubt that he can solely provide for the
subsistence, education, transportation, health/medical needs and recreational activities of his children, as
well as those of petitioner who was then unemployed and a full-time housewife. Despite this, respondents
counsel manifested during the same hearing that respondent was willing to grant the amount of
only P75,000.00 as monthly support pendente lite both for the children and petitioner as spousal support.
Though the receipts of expenses submitted in court unmistakably show how much respondent lavished
on his children, it appears that the matter of spousal support was a different matter altogether. Rejecting
petitioners prayer for P500,000.00 monthly support and finding the P75,000.00 monthly support offered
by respondent as insufficient, the trial court fixed the monthly support pendente lite at P250,000.00.
However, since the supposed income in millions of respondent was based merely on the allegations of
petitioner in her complaint and registration documents of various corporations which respondent insisted
are owned not by him but his parents and siblings, the CA reduced the amount of support pendente lite
to P115,000.00, which ruling was no longer questioned by both parties.
Controversy between the parties resurfaced when respondents compliance with the final CA decision
indicated that he deducted from the total amount in arrears (P2,645,000.00) the sum of P2,482,348.16,
representing the value of the two cars for the children, their cost of maintenance and advances given to
petitioner and his children. Respondent explained that the deductions were made consistent with the fallo
of the CA Decision in CA-G.R. SP No. 84740 ordering him to pay support pendente lite in arrears less the
amount supposedly given by him to petitioner as her and their two childrens monthly support.

The following is a summary of the subject deductions under Compliance dated June 28, 2005, duly
supported by receipts22:
Car purchases for Angelli Suzanne and Daniel Ryan Car Maintenance fees of Angelli Suzanne

Php1,350,000.00
613,472.86
51,232.50

Credit card statements of Daniel Ryan -

348,682.28

Car Maintenance fees of Daniel Ryan -

118,960.52

Php2,482,348.16
After the trial court disallowed the foregoing deductions, respondent filed a motion for reconsideration
further asserting that the following amounts, likewise with supporting receipts, be considered as additional
advances given to petitioner and the children 23:
Medical expenses of Susan Lim-Lua

Php 42,450.71

Dental Expenses of Daniel Ryan

11,500.00

Travel expenses of Susan Lim-Lua

14,611.15

Credit card purchases of Angelli

Suzanne

408,891.08

Salon and travel expenses of Angelli

Suzanne

87,112.70

School expenses of Daniel Ryan Lua

260,900.00

Cash given to Daniel and Angelli

121,000.00

TOTAL -

GRAND TOTAL -

Php 946,465.64

Php 3,428,813.80

The CA, in ruling for the respondent said that all the foregoing expenses already incurred by the
respondent should, in equity, be considered advances which may be properly deducted from the support
in arrears due to the petitioner and the two children. Said court also noted the absence of petitioners
contribution to the joint obligation of support for their children.

We reverse in part the decision of the CA.

Judicial determination of support pendente lite in cases of legal separation and petitions for declaration of
nullity or annulment of marriage are guided by the following provisions of the Rule on Provisional Orders 24
Sec. 2. Spousal Support.In determining support for the spouses, the court may be guided by the
following rules:
(a) In the absence of adequate provisions in a written agreement between the spouses, the
spouses may be supported from the properties of the absolute community or the conjugal
partnership.
(b) The court may award support to either spouse in such amount and for such period of time as
the court may deem just and reasonable based on their standard of living during the marriage.
(c) The court may likewise consider the following factors: (1) whether the spouse seeking support
is the custodian of a child whose circumstances make it appropriate for that spouse not to seek
outside employment; (2) the time necessary to acquire sufficient education and training to enable
the spouse seeking support to find appropriate employment, and that spouses future earning
capacity; (3) the duration of the marriage; (4) the comparative financial resources of the spouses,
including their comparative earning abilities in the labor market; (5) the needs and obligations of
each spouse; (6) the contribution of each spouse to the marriage, including services rendered in
home-making, child care, education, and career building of the other spouse; (7) the age and
health of the spouses; (8) the physical and emotional conditions of the spouses; (9) the ability of
the supporting spouse to give support, taking into account that spouses earning capacity, earned
and unearned income, assets, and standard of living; and (10) any other factor the court may
deem just and equitable.
(d) The Family Court may direct the deduction of the provisional support from the salary of the
spouse.
Sec. 3. Child Support.The common children of the spouses shall be supported from the properties of the
absolute community or the conjugal partnership.
Subject to the sound discretion of the court, either parent or both may be ordered to give an amount
necessary for the support, maintenance, and education of the child. It shall be in proportion to the
resources or means of the giver and to the necessities of the recipient.
In determining the amount of provisional support, the court may likewise consider the following factors: (1)
the financial resources of the custodial and non-custodial parent and those of the child; (2) the physical
and emotional health of the child and his or her special needs and aptitudes; (3) the standard of living the
child has been accustomed to; (4) the non-monetary contributions that the parents will make toward the
care and well-being of the child.
The Family Court may direct the deduction of the provisional support from the salary of the parent.
Since the amount of monthly support pendente lite as fixed by the CA was not appealed by either party,
there is no controversy as to its sufficiency and reasonableness. The dispute concerns the deductions
made by respondent in settling the support in arrears.

On the issue of crediting of money payments or expenses against accrued support, we find as relevant
the following rulings by US courts.
In Bradford v. Futrell,25 appellant sought review of the decision of the Circuit Court which found him in
arrears with his child support payments and entered a decree in favor of appellee wife. He complained
that in determining the arrearage figure, he should have been allowed full credit for all money and items of
personal property given by him to the children themselves, even though he referred to them as gifts. The
Court of Appeals of Maryland ruled that in the suit to determine amount of arrears due the divorced wife
under decree for support of minor children, the husband (appellant) was not entitled to credit for checks
which he had clearly designated as gifts, nor was he entitled to credit for an automobile given to the
oldest son or a television set given to the children. Thus, if the children remain in the custody of the
mother, the father is not entitled to credit for money paid directly to the children if such was paid without
any relation to the decree.
In the absence of some finding of consent by the mother, most courts refuse to allow a husband to dictate
how he will meet the requirements for support payments when the mode of payment is fixed by a decree
of court. Thus he will not be credited for payments made when he unnecessarily interposed himself as a
volunteer and made payments direct to the children of his own accord. Wills v. Baker, 214 S. W. 2d 748
(Mo. 1948); Openshaw v. Openshaw, 42 P. 2d 191 (Utah 1935). In the latter case the court said in part:
"The payments to the children themselves do not appear to have been made as payments upon alimony,
but were rather the result of his fatherly interest in the welfare of those children. We do not believe he
should be permitted to charge them to plaintiff. By so doing he would be determining for Mrs. Openshaw
the manner in which she should expend her allowances. It is a very easy thing for children to say their
mother will not give them money, especially as they may realize that such a plea is effective in attaining
their ends. If she is not treating them right the courts are open to the father for redress." 26
In Martin, Jr. v. Martin,27 the Supreme Court of Washington held that a father, who is required by a divorce
decree to make child support payments directly to the mother, cannot claim credit for payments voluntarily
made directly to the children. However, special considerations of an equitable nature may justify a court in
crediting such payments on his indebtedness to the mother, when such can be done without injustice to
her.
The general rule is to the effect that when a father is required by a divorce decree to pay to the mother
money for the support of their dependent children and the unpaid and accrued installments become
judgments in her favor, he cannot, as a matter of law, claim credit on account of payments voluntarily
made directly to the children. Koon v. Koon, supra; Briggs v. Briggs, supra. However, special
considerations of an equitable nature may justify a court in crediting such payments on his indebtedness
to the mother, when that can be done without injustice to her. Briggs v. Briggs, supra. The courts are
justifiably reluctant to lay down any general rules as to when such credits may be allowed. 28 (Emphasis
supplied.)
Here, the CA should not have allowed all the expenses incurred by respondent to be credited against the
accrued support pendente lite. As earlier mentioned, the monthly support pendente lite granted by the trial
court was intended primarily for food, household expenses such as salaries of drivers and house helpers,
and also petitioners scoliosis therapy sessions. Hence, the value of two expensive cars bought by
respondent for his children plus their maintenance cost, travel expenses of petitioner and Angelli,
purchases through credit card of items other than groceries and dry goods (clothing) should have been
disallowed, as these bear no relation to the judgment awarding support pendente lite. While it is true that
the dispositive portion of the executory decision in CA-G.R. SP No. 84740 ordered herein respondent to
pay the support in arrears "less than the amount supposedly given by petitioner to the private respondent
as her and their two (2) children monthly support," the deductions should be limited to those basic needs

and expenses considered by the trial and appellate courts. The assailed ruling of the CA allowing huge
deductions from the accrued monthly support of petitioner and her children, while correct insofar as it
commends the generosity of the respondent to his children, is clearly inconsistent with the executory
decision in CA-G.R. SP No. 84740. More important, it completely ignores the unfair consequences to
petitioner whose sustenance and well-being, was given due regard by the trial and appellate courts. This
is evident from the March 31, 2004 Order granting support pendente lite to petitioner and her children,
when the trial court observed:
While there is evidence to the effect that defendant (respondent) is giving some forms of financial
assistance to his two (2) children via their credit cards and paying for their school expenses, the same is,
however, devoid of any form of spousal support to the plaintiff, for, at this point in time, while the action for
nullity of marriage is still to be heard, it is incumbent upon the defendant (respondent), considering the
physical and financial condition of the plaintiff and the overwhelming capacity of defendant (respondent),
to extend support unto the latter. x x x29
On appeal, while the Decision in CA-G.R. SP No. 84740 reduced the amount of monthly support fixed by
the trial court, it nevertheless held that considering respondents financial resources, it is but fair and just
that he give a monthly support for the sustenance and basic necessities of petitioner and his children.
This would imply that any amount respondent seeks to be credited as monthly support should only cover
those incurred for sustenance and household expenses.1avvphi1
In the case at bar, records clearly show and in fact has been admitted by petitioner that aside from paying
the expenses of their two (2) childrens schooling, he gave his two (2) children two (2) cars and credit
cards of which the expenses for various items namely: clothes, grocery items and repairs of their cars
were chargeable to him which totaled an amount of more than One Hundred Thousand (P100,000.00) for
each of them and considering that as testified by the private respondent that she needs the total amount
of P113,000.00 for the maintenance of the household and other miscellaneous expenses and considering
further that petitioner can afford to buy cars for his two (2) children, and to pay the expenses incurred by
them which are chargeable to him through the credit cards he provided them in the amount
of P100,000.00 each, it is but fair and just that the monthly support pendente lite for his wife, herein
private respondent, be fixed as of the present in the amount of P115,000.00 which would be sufficient
enough to take care of the household and other needs. This monthly support pendente lite to private
respondent in the amount of P115,000.00 excludes the amount of One Hundred ThirtyFive (P135,000.00)
Thousand Pesos for medical attendance expenses needed by private respondent for the operation of
both her eyes which is demandable upon the conduct of such operation. Likewise, this monthly support
ofP115,000.00 is without prejudice to any increase or decrease thereof that the trial court may grant
private respondent as the circumstances may warrant i.e. depending on the proof submitted by the parties
during the proceedings for the main action for support.
The amounts already extended to the two (2) children, being a commendable act of petitioner, should be
continued by him considering the vast financial resources at his disposal. 30 (Emphasis supplied.)
Accordingly, only the following expenses of respondent may be allowed as deductions from the accrued
support pendente lite for petitioner and her children:

Medical expenses of Susan Lim-Lua

Dental Expenses of Daniel Ryan

Php 42,450.71
11,500.00

Credit card purchases of Angelli

365,282.20

(Groceries and Dry Goods)

Credit Card purchases of Daniel Ryan

228,869.38

TOTAL

Php 648,102.29

As to the contempt charge, we sustain the CA in holding that respondent is not guilty of indirect contempt.
Contempt of court is defined as a disobedience to the court by acting in opposition to its authority, justice,
and dignity. It signifies not only a willful disregard or disobedience of the courts order, but such conduct
which tends to bring the authority of the court and the administration of law into disrepute or, in some
manner, to impede the due administration of justice. 31 To constitute contempt, the act must be done
willfully and for an illegitimate or improper purpose. 32 The good faith, or lack of it, of the alleged contemnor
should be considered.33
Respondent admittedly ceased or suspended the giving of monthly support pendente lite granted by the
trial court, which is immediately executory. However, we agree with the CA that respondents act was not
contumacious considering that he had not been remiss in actually providing for the needs of his children.
It is a matter of record that respondent continued shouldering the full cost of their education and even
beyond their basic necessities in keeping with the familys social status. Moreover, respondent believed in
good faith that the trial and appellate courts, upon equitable grounds, would allow him to offset the
substantial amounts he had spent or paid directly to his children.
Respondent complains that petitioner is very much capacitated to generate income on her own because
she presently maintains a boutique at the Ayala Center Mall in Cebu City and at the same time engages
in the business of lending money. He also claims that the two children have finished their education and
are now employed in the family business earning their own salaries.
Suffice it to state that the matter of increase or reduction of support should be submitted to the trial court
in which the action for declaration for nullity of marriage was filed, as this Court is not a trier of facts. The
amount of support may be reduced or increased proportionately according to the reduction or increase of
the necessities of the recipient and the resources or means of the person obliged to support. 34 As we held
in Advincula v. Advincula35
Judgment for support does not become final. The right to support is of such nature that its allowance is
essentially provisional; for during the entire period that a needy party is entitled to support, his or her
alimony may be modified or altered, in accordance with his increased or decreased needs, and with the
means of the giver. It cannot be regarded as subject to final determination. 36
WHEREFORE, the petition is PARTLY GRANTED. The Decision dated April 20, 2006 of the Court of
Appeals in CA-G.R. SP Nos. 01154 and 01315 is hereby MODIFIED to read as follows:
"WHEREFORE, judgment is hereby rendered:
a) DISMISSING, for lack of merit, the case of Petition for Contempt of Court with Damages filed
by Susan Lim Lua against Danilo Y. Lua with docket no. SP. CA-G.R. No. 01154;

b) GRANTING IN PART Danilo Y. Lua's Petition for Certiorari docketed as SP. CA-G.R. No.
01315. Consequently, the assailed Orders dated 27 September 2005 and 25 November 2005 of
the Regional Trial Court, Branch 14, Cebu City issued in Civil Case No. CEB-29346 entitled
"Susan Lim Lua versus Danilo Y. Lua, are hereby NULLIFIED and SET ASIDE, and instead a new
one is entered:
i. ORDERING the deduction of the amount of Php 648,102.29 from the support pendente
lite in arrears of Danilo Y. Lua to his wife, Susan Lim Lua and their two (2) children;
ii. ORDERING Danilo Y. Lua to resume payment of his monthly support of
PhP115,000.00 pesos starting from the time payment of this amount was deferred by him
subject to the deduction aforementioned.
iii. DIRECTING the immediate execution of this judgment.
SO ORDERED."
No pronouncement as to costs.
SO ORDERED.
PARENTAL AUTHORITY
March 15, 1995
REYNALDO ESPIRITU and GUILLERMA LAYUG, petitioners,
vs.
COURT OF APPEALS and TERESITA MASAUDING, respondents.

MELO, J.:
This case concerns a seemingly void marriage and a relationship which went sour. The innocent victims
are two children horn out of the same union. Upon this Court now falls the not too welcome task of
deciding the issue of who, between the father and mother, is more suitable and better qualified in helping
the children to grow into responsible, well-adjusted, and happy young adulthood.
Petitioner Reynaldo Espiritu and respondent Teresita Masauding first met sometime in 1976 in Iligan City
where Reynaldo was employed by the National Steel Corporation and Teresita was employed as a nurse
in a local hospital. In 1977, Teresita left for Los Angeles, California to work as a nurse. She was able to
acquire immigrant status sometime later. In 1984, Reynaldo was sent by his employer, the National Steel
Corporation, to Pittsburgh, Pennsylvania as its liaison officer and Reynaldo and Teresita then began to
maintain a common law relationship of husband and wife. On August 16, 1986, their daughter, Rosalind
Therese, was born. On October 7, 1987, while they were on a brief vacation in the Philippines, Reynaldo
and Teresita got married, and upon their return to the United States, their second child, a son, this time,
and given the name Reginald Vince, was born on January 12, 1988.
The relationship of the couple deteriorated until they decided to separate sometime in 1990. Teresita
blamed Reynaldo for the break-up, stating he was always nagging her about money matters. Reynaldo,

on the other hand, contended that Teresita was a spendthrift, buying expensive jewelry and antique
furniture instead of attending to household expenses.
Instead of giving their marriage a second chance as allegedly pleaded by Reynaldo, Teresita left
Reynaldo and the children and went back to California. She claims, however, that she spent a lot of
money on long distance telephone calls to keep in constant touch with her children.
Reynaldo brought his children home to the Philippines, but because his assignment in Pittsburgh was not
yet completed, he was sent back by his company to Pittsburgh. He had to leave his children with his
sister, co-petitioner Guillerma Layug and her family.
Teresita claims that she did not immediately follow her children because Reynaldo filed a criminal case for
bigamy against her and she was afraid of being arrested. The judgment of conviction in the bigamy case
was actually rendered only on September 29, 1994. (Per Judge Harriet O. Demetriou, Branch 70, RTC,
Pasig, pp. 210-222,Rollo). Teresita, meanwhile, decided to return to the Philippines and on December 8,
1992 and filed the petition for a writ of habeas corpus against herein two petitioners to gain custody over
the children, thus starting the whole proceedings now reaching this Court.
On June 30, 1993, the trial court dismissed the petition for habeas corpus. It suspended Teresita's
parental authority over Rosalind and Reginald and declared Reynaldo to have sole parental authority over
them but with rights of visitation to be agreed upon by the parties and to be approved by the Court.
On February 16, 1994, the Court of Appeals per Justice Isnani, with Justices de Pano and Ibay-Somera
concurring, reversed the trial court's decision. It gave custody to Teresita and visitation rights on
weekends to Reynaldo.
Petitioners now come to this Court on a petition for review, in the main contending that the Court of
Appeals disregarded the factual findings of the trial court; that the Court of Appeals further engaged in
speculations and conjectures, resulting in its erroneous conclusion that custody of the children should be
given to respondent Teresita.
We believe that respondent court resolved the question of custody over the children through an automatic
and blind application of the age proviso of Article 363 of the Civil Code which reads:
Art. 363. In all questions on the care, custody, education and property of the children, the
latter's welfare shall be paramount. No mother shall be separated from her child under
seven years of age, unless the court finds compelling reasons for such measure.
and of Article 213 of the Family Code which in turn provides:
Art. 213. In case of separation of the parents parental authority shall be exercised by the
parent designated by the Court. The Court shall take into account all relevant
considerations, especially the choice of the child over seven years of age unless the
parent chosen is unfit.
The decision under review is based on the report of the Code Commission which drafted Article 213 that a
child below seven years still needs the loving, tender care that only a mother can give and which,
presumably, a father cannot give in equal measure. The commentaries of a member of the Code
Commission, former Court of Appeals Justice Alicia Sempio-Diy, in a textbook on the Family Code, were
also taken into account. Justice Diy believes that a child below seven years should still be awarded to her

mother even if the latter is a prostitute or is unfaithful to her husband. This is on the theory that moral
dereliction has no effect on a baby unable to understand such action. (Handbook on the Family Code of
the Philippines, 1988 Ed., p. 297.)
The Court of Appeals was unduly swayed by an abstract presumption of law rather than an appreciation
of relevant facts and the law which should apply to those facts. The task of choosing the parent to whom
custody shall be awarded is not a ministerial function to be determined by a simple determination of the
age of a minor child. Whether a child is under or over seven years of age, the paramount criterion must
always be the child's interests. Discretion is given to the court to decide who can best assure the welfare
of the child, and award the custody on the basis of that consideration. In Unson III vs. Navarro (101 SCRA
183 [1980]), we laid down the rule that "in all controversies regarding the custody of minors, the sole and
foremost consideration is the physical, education, social and moral welfare of the child concerned, taking
into account the respective resources and social and moral situations of the contending parents", and
in Medina vs. Makabali (27 SCRA 502 [1969]), where custody of the minor was given to a non-relative as
against the mother, then the country's leading civilist, Justice J.B.L. Reyes, explained its basis in this
manner:
. . . While our law recognizes the right of a parent to the custody of her child, Courts must
not lose sight of the basic principle that "in all questions on the care, custody, education
and property of children, the latter's welfare shall be paramount" (Civil Code of the
Philippines. Art. 363), and that for compelling reasons, even a child under seven may be
ordered separated from the mother (do). This is as it should be, for in the continual
evolution of legal institutions, the patria potestas has been transformed from the jus vitae
ac necis (right of life and death) of the Roman law, under which the offspring was virtually
a chattel of his parents into a radically different institution, due to the influence of
Christian faith and doctrines. The obligational aspect is now supreme. As pointed out by
Puig Pena, now "there is no power, but a task; no complex of rights (of parents) but a
sum of duties; no sovereignty, but a sacred trust for the welfare of the minor."
As a result, the right of parents to the company and custody of their children is but
ancillary to the proper discharge of parental duties to provide the children with adequate
support, education, moral, intellectual and civic training and development (Civil Code, Art.
356).
(pp. 504-505.)
In ascertaining the welfare and best interests of the child, courts are mandated by the Family Code to
take into account all relevant considerations. If a child is under seven years of age, the law presumes that
the mother is the best custodian. The presumption is strong but it is not conclusive. It can be overcome by
"compelling reasons". If a child is over seven, his choice is paramount but, again, the court is not bound
by that choice. In its discretion, the court may find the chosen parent unfit and award custody to the other
parent, or even to a third party as it deems fit under the circumstances.
In the present case, both Rosalind and Reginald are now over seven years of age. Rosalind celebrated
her seventh birthday on August 16, 1993 while Reginald reached the same age on January 12, 1995.
Both are studying in reputable schools and appear to be fairly intelligent children, quite capable of
thoughtfully determining the parent with whom they would want to live. Once the choice has been made,
the burden returns to the court to investigate if the parent thus chosen is unfit to assume parental
authority and custodial responsibility.

Herein lies the error of the Court of Appeals. Instead of scrutinizing the records to discover the choice of
the children and rather than verifying whether that parent is fit or unfit, respondent court simply followed
statutory presumptions and general propositions applicable to ordinary or common situations. The sevenyear age limit was mechanically treated as an arbitrary cut off period and not a guide based on a strong
presumption.
A scrutiny of the pleadings in this case indicates that Teresita, or at least, her counsel are more intent on
emphasizing the "torture and agony" of a mother separated from her children and the humiliation she
suffered as a result of her character being made a key issue in court rather than the feelings and future,
the best interests and welfare of her children. While the bonds between a mother and her small child are
special in nature, either parent, whether father or mother, is bound to suffer agony and pain if deprived of
custody. One cannot say that his or her suffering is greater than that of the other parent. It is not so much
the suffering, pride, and other feelings of either parent but the welfare of the child which is the paramount
consideration.
We are inclined to sustain the findings and conclusions of the regional trial court because it gave greater
attention to the choice of Rosalind and considered in detail all the relevant factors bearing on the issue of
custody.
When she was a little over 5 years old, Rosalind was referred to a child psychologist, Rita Flores
Macabulos, to determine the effects of uprooting her from the Assumption College where she was
studying. Four different tests were administered. The results of the tests are quite revealing. The
responses of Rosalind about her mother were very negative causing the psychologist to delve deeper into
the child's anxiety. Among the things revealed by Rosalind was an incident where she saw her mother
hugging and kissing a "bad" man who lived in their house and worked for her father. Rosalind refused to
talk to her mother even on the telephone. She tended to be emotionally emblazed because of constant
fears that she may have to leave school and her aunt's family to go back to the United States to live with
her mother. The 5-1/2 page report deals at length with feelings of insecurity and anxiety arising from
strong conflict with the mother. The child tried to compensate by having fantasy activities. All of the 8
recommendations of the child psychologist show that Rosalind chooses petitioners over the private
respondent and that her welfare will be best served by staying with them (pp. 199-205, Rollo).
At about the same time, a social welfare case study was conducted for the purpose of securing the travel
clearance required before minors may go abroad. Social Welfare Officer Emma D. Estrada Lopez, stated
that the child Rosalind refused to go back to the United States and be reunited with her mother. She felt
unloved and uncared for. Rosalind was more attached to her Yaya who did everything for her and
Reginald. The child was found suffering from emotional shock caused by her mother's infidelity. The
application for travel clearance was recommended for denial (pp. 206-209, Rollo).
Respondent Teresita, for her part, argues that the 7-year age reference in the law applies to the date
when the petition for a writ of habeas corpus is filed, not to the date when a decision is rendered. This
argument is flawed. Considerations involving the choice made by a child must be ascertained at the time
that either parent is given custody over the child. The matter of custody is not permanent and unalterable.
If the parent who was given custody suffers a future character change and becomes unfit, the matter of
custody can always be re-examined and adjusted (Unson III v. Navarro, supra, at p. 189).
To be sure, the welfare, the best interests, the benefit, and the good of the child must be determined as of
the time that either parent is chosen to be the custodian.
At the present time, both children are over 7 years of age and are thus perfectly capable of making a
fairly intelligent choice.

According to respondent Teresita, she and her children had tearful reunion in the trial court, with the
children crying, grabbing, and embracing her to prevent the father from taking them away from her. We
are more inclined to believe the father's contention that the children ignored Teresita in court because
such an emotional display as described by Teresita in her pleadings could not have been missed by the
trial court. Unlike the Justices of the Court of Appeals Fourth Division, Judge Lucas P. Bersamin
personally observed the children and their mother in the courtroom. What the Judge found is diametrically
opposed to the contentions of respondent Teresita. The Judge had this to say on the matter.
And, lastly, the Court cannot look at petitioner [Teresita] in similar light, or with more
understanding, especially as her conduct and demeanor in the courtroom (during most of
the proceedings) or elsewhere (but in the presence of the undersigned presiding judge)
demonstrated her ebulent temper that tended to corroborate the alleged violence of her
physical punishment of the children (even if only for ordinary disciplinary purposes) and
emotional instability, typified by her failure (or refusal?) to show deference and respect to
the Court and the other parties (pp. 12-13, RTC Decision)
Respondent Teresita also questions the competence and impartiality of the expert witnesses. Respondent
court, in turn, states that the trial court should have considered the fact that Reynaldo and his sister,
herein petitioner Guillerma Layug, hired the two expert witnesses. Actually, this was taken into account by
the trial court which stated that the allegations of bias and unfairness made by Teresita against the
psychologist and social worker were not substantiated.
The trial court stated that the professional integrity and competence of the expert witnesses and the
objectivity of the interviews were unshaken and unimpeached. We might add that their testimony remain
uncontroverted. We also note that the examinations made by the experts were conducted in late 1991,
well over a year before the filing by Teresita of the habeas corpus petition in December, 1992. Thus, the
examinations were at that time not intended to support petitioners' position in litigation, because there
was then not even an impending possibility of one. That they were subsequently utilized in the case a
quo when it did materialize does not change the tenor in which they were first obtained.
Furthermore, such examinations, when presented to the court must be construed to have been presented
not to sway the court in favor of any of the parties, but to assist the court in the determination of the issue
before it. The persons who effected such examinations were presented in the capacity of expert
witnesses testifying on matters within their respective knowledge and expertise. On this matter, this Court
had occasion to rule in the case of Sali vs. Abukakar, et al. (17 SCRA 988 [1966]).
The fact that, in a particular litigation, an NBI expert examines certain contested
documents, at the request, not of a public officer or agency of the Government, but of a
private litigant, does not necessarily nullify the examination thus made. Its purpose,
presumably, to assist the court having jurisdiction over said litigation, in the performance
of its duty to settle correctly the issues relative to said documents. Even a non-expert
private individual may examine the same, if there are facts within his knowledge which
may help, the court in the determination of said issue. Such examination, which may
properly be undertaken by a non-expert private individual, does not, certainly become null
and void when the examiner is an expert and/or an officer of the NBI.
(pp. 991-992.)
In regard to testimony of expert witnesses it was held in Salomon, et al. vs. Intermediate Appellate Court,
et al. (185 SCRA 352 [1990]):

. . . Although courts are not ordinarily bound by expert testimonies, they may place
whatever weight they choose upon such testimonies in accordance with the facts of the
case. The relative weight and sufficiency of expert testimony is peculiarly within the
province of the trial court to decide, considering the ability and character of the witness,
his actions upon the witness stand, the weight and process of the reasoning by which he
has supported his opinion, his possible bias in favor of the side for whom he testifies, the
fact that he is a paid witness, the relative opportunities for study and observation of the
matters about which he testifies, and any other matters which reserve to illuminate his
statements. The opinion of the expert may not be arbitrarily rejected; it is to be
considered by the court in view of all the facts and circumstances in the case and when
common knowledge utterly fails, the expert opinion may be given controlling effect (20
Am. Jur., 1056-1058). The problem of the credibility of the expert witness and the
evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon
is not reviewable in the absence of an abuse of that discretion.
(p. 359)
It was in the exercise of this discretion, coupled with the opportunity to assess the witnesses' character
and to observe their respective demeanor that the trial court opted to rely on their testimony, and we
believe that the trial court was correct in its action.
Under direct examination an February 4, 1993, Social Worker Lopez stated that Rosalind and her aunt
were about to board a plane when they were off-loaded because there was no required clearance. They
were referred to her office, at which time Reginald was also brought along and interviewed. One of the
regular duties of Social Worker Lopez in her job appears to be the interview of minors who leave for
abroad with their parents or other persons. The interview was for purposes of foreign travel by a 5-year
old child and had nothing to do with any pending litigation. On cross-examination, Social Worker Lopez
stated that her assessment of the minor's hatred for her mother was based on the disclosures of the
minor. It is inconceivable, much less presumable that Ms. Lopez would compromise her position, ethics,
and the public trust reposed on a person of her position in the course of doing her job by falsely testifying
just to support the position of any litigant.
The psychologist, Ms. Macabulos, is a B.S. magna cum laude graduate in Psychology and an M.A.
degree holder also in Psychology with her thesis graded "Excellent". She was a candidate for a doctoral
degree at the time of the interview. Petitioner Reynaldo may have shouldered the cost of the interview but
Ms. Macabulos services were secured because Assumption College wanted an examination of the child
for school purposes and not because of any litigation. She may have been paid to examine the child and
to render a finding based on her examination, but she was not paid to fabricate such findings in favor of
the party who retained her services. In this instance it was not even petitioner Reynaldo but the school
authorities who initiated the same. It cannot be presumed that a professional of her potential and stature
would compromise her professional standing.
Teresita questions the findings of the trial court that:
1. Her morality is questionable as shown by her marrying Reynaldo at the time she had a
subsisting marriage with another man.
2. She is guilty of grave indiscretion in carrying on a love affair with one of the Reynaldo's
fellow NSC employees.

3. She is incapable of providing the children with necessities and conveniences

commensurate to their social standing because she does not even own any home in the
Philippines.
4. She is emotionally unstable with ebullient temper.
It is contended that the above findings do not constitute the compelling reasons under the law which
would justify depriving her of custody over the children; worse, she claims, these findings are non-existent
and have not been proved by clear and convincing evidence.
Public and private respondents give undue weight to the matter of a child under 7 years of age not to be
separated from the mother, without considering what the law itself denominates as compelling reasons or
relevant considerations to otherwise decree. In the Unson III case, earlier mentioned, this Court stated
that it found no difficulty in not awarding custody to the mother, it being in the best interest of the child "to
be freed from the obviously unwholesome, not
to say immoral influence, that the situation where [the mother] had placed herself . . . might create in the
moral and social outlook of [the child] who was in her formative and most impressionable stage . . ."
Then too, it must be noted that both Rosalind and Reginald are now over 7 years of age. They
understand the difference between right and wrong, ethical behavior and deviant immorality. Their best
interests would be better served in an environment characterized by emotional stability and a certain
degree of material sufficiency. There is nothing in the records to show that Reynaldo is an "unfit" person
under Article 213 of the Family Code. In fact, he has been trying his best to give the children the kind of
attention and care which the mother is not in a position to extend.
The argument that the charges against the mother are false is not supported by the records. The findings
of the trial court are based on evidence.
Teresita does not deny that she was legally married to Roberto Lustado on December 17, 1984 in
California (p. 13, Respondent's Memorandum; p. 238, Rollo; pp. 11, RTC Decision). Less than a year
later, she had already driven across the continental United States to commence living with another man,
petitioner Reynaldo, in Pittsburgh. The two were married on October 7, 1987. Of course, to dilute this
disadvantage on her part, this matter of her having contracted a bigamous marriage later with Reynaldo,
Teresita tried to picture Reynaldo as a rapist, alleging further that she told Reynaldo about her marriage to
Lustado on the occasion when she was raped by Reynaldo. Expectedly, Judge Harriet Demetriou of the
Pasig RTC lent no weight to such tale. And even if this story were given credence, it adds to and not
subtracts from the conviction of this Court about Teresita's values. Rape is an insidious crime against
privacy. Confiding to one's potential rapist about a prior marriage is not a very convincing indication that
the potential victim is averse to the act. The implication created is that the act would be acceptable if not
for the prior marriage.
More likely is Reynaldo's story that he learned of the prior marriage only much later. In fact, the rape
incident itself is unlikely against a woman who had driven three days and three nights from California,
who went straight to the house of Reynaldo in Pittsburgh and upon arriving went to bed and, who
immediately thereafter started to live with him in a relationship which is marital in nature if not in fact.
Judge Bersamin of the court a quo believed the testimony of the various witnesses that while married to
Reynaldo, Teresita entered into an illicit relationship with Perdencio Gonzales right there in the house of
petitioner Reynaldo and respondent Teresita. Perdencio had been assigned by the National Steel
Corporation to assist in the project in Pittsburgh and was staying with Reynaldo, his co-employee, in the
latter's house. The record shows that the daughter Rosalind suffered emotional disturbance caused by

the traumatic effect of seeing her mother hugging and kissing a boarder in their house. The record also
shows that it was Teresita who left the conjugal home and the children, bound for California. When
Perdencio Gonzales was reassigned to the Philippines, Teresita followed him and was seen in his
company in a Cebu hotel, staying in one room and taking breakfast together. More significant is that
letters and written messages from Teresita to Perdencio were submitted in evidence (p.12, RTC
Decision).
The argument that moral laxity or the habit of flirting from one man to another does not fall under
"compelling reasons" is neither meritorious nor applicable in this case. Not only are the children over
seven years old and their clear choice is the father, but the illicit or immoral activities of the mother had
already caused emotional disturbances, personality conflicts, and exposure to conflicting moral values, at
least in Rosalind. This is not to mention her conviction for the crime of bigamy, which from the records
appears to have become final (pp. 210-222, Rollo).
Respondent court's finding that the father could not very well perform the role of a sole parent and
substitute mother because his job is in the United States while the children will be left behind with their
aunt in the Philippines is misplaced. The assignment of Reynaldo in Pittsburgh is or was a temporary one.
He was sent there to oversee the purchase of a steel mill component and various equipment needed by
the National Steel Corporation in the Philippines. Once the purchases are completed, there is nothing to
keep him there anymore. In fact, in a letter dated January 30, 1995, Reynaldo informs this Court of the
completion of his assignment abroad and of his permanent return to the Philippines (ff.
p. 263, Rollo).
The law is more than satisfied by the judgment of the trial court. The children are now both over seven
years old. Their choice of the parent with whom they prefer to stay is clear from the record. From all
indications, Reynaldo is a fit person, thus meeting the two requirements found in the first paragraph of
Article 213 of the Family Code. The presumption under the second paragraph of said article no longer
applies as the children are over seven years. Assuming that the presumption should have persuasive
value for children only one or two years beyond the age of seven years mentioned in the statute, there
are compelling reasons and relevant considerations not to grant custody to the mother. The children
understand the unfortunate shortcomings of their mother and have been affected in their emotional
growth by her behavior.
WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals is reversed and
set aside, and the decision of Branch 96 of the Regional Trial Court of the National Capital Judicial
Region stationed in Quezon City and presided over by the Honorable Lucas P. Bersamin in its Civil Case
No. Q-92-14206 awarding custody of the minors Rosalind and Reginald Espiritu to their father, Reynaldo
Espiritu, is reinstated. No special pronouncement is made as to costs.
SO ORDERED.

March 16, 1995

LEOUEL SANTOS, SR., petitioner-appellant,
vs.
COURT OF APPEALS, and SPOUSES LEOPOLDO and OFELIA BEDIA, respondents-appellees.

ROMERO, J.:
In this petition for review, we are asked to overturn the decision of the Court of Appeals 1 granting custody
of six-year old Leouel Santos, Jr. to his maternal grandparents and not to his father, Santos, Sr. What is
sought is a decision which should definitively settle the matter of the care, custody and control of the boy.
Happily, unlike King Solomon, we need not merely rely on a "wise and understanding heart," for there is
man's law to guide us and that is, the Family Code.
The antecedent facts giving rise to the case at bench are as follows:
Petitioner Leouel Santos, Sr., an army lieutenant, and Julia Bedia a nurse by profession, were married in
Iloilo City in 1986. Their union beget only one child, Leouel Santos, Jr. who was born July 18, 1987.
From the time the boy was released from the hospital until sometime thereafter, he had been in the care
and custody of his maternal grandparents, private respondents herein, Leopoldo and Ofelia Bedia.
Petitioner and wife Julia agreed to place Leouel Jr. in the temporary custody of the latter's parents, the
respondent spouses Bedia. The latter alleged that they paid for all the hospital bills, as well as the
subsequent support of the boy because petitioner could not afford to do so.
The boy's mother, Julia Bedia-Santos, left for the United States in May 1988 to work. Petitioner alleged
that he is not aware of her whereabouts and his efforts to locate her in the United States proved futile.
Private respondents claim that although abroad, their daughter Julia had been sending financial support
to them for her son.
On September 2, 1990, petitioner along with his two brothers, visited the Bedia household, where threeyear old Leouel Jr. was staying. Private respondents contend that through deceit and false pretensions,
petitioner abducted the boy and clandestinely spirited him away to his hometown in Bacong, Negros
Oriental.
The spouses Bedia then filed a "Petition for Care, Custody and Control of Minor Ward Leouel Santos Jr.,"
before the Regional Trial Court of Iloilo City, with Santos, Sr. as respondent. 2
After an ex-parte hearing on October 8, 1990, the trial court issued an order on the same day awarding
custody of the child Leouel Santos, Jr. to his grandparents, Leopoldo and Ofelia Bedia. 3
Petitioner appealed this Order to the Court of Appeals. 4 In its decision dated April 30, 1992, respondent
appellate court affirmed the trial court's
order. 5 His motion for reconsideration having been denied, 6 petitioner now brings the instant petition for
review for a reversal of the appellate court's decision.
The Court of Appeals erred, according to petitioner, in awarding custody of the boy to his grandparents
and not to himself. He contends that since private respondents have failed to show that petitioner is an
unfit and unsuitable father, substitute parental authority granted to the boy's grandparents under Art. 214
of the Family Code is inappropriate.
Petitioner adds that the reasons relied upon by the private respondents in having custody over the boy,
are flimsy and insufficient to deprive him of his natural and legal right to have custody.

On the other hand, private respondents aver that they can provide an air-conditioned room for the boy
and that petitioner would not be in a position to take care of his son since he has to be assigned to
different places. They also allege that the petitioner did not give a single centavo for the boy's support and
maintenance. When the boy was about to be released from the hospital, they were the ones who paid the
fees because their daughter and petitioner had no money. Besides, Julia Bedia Santos, their daughter,
had entrusted the boy to them before she left for the United States. Furthermore, petitioner's use of
trickery and deceit in abducting the child in 1990, after being hospitably treated by private respondents,
does not speak well of his fitness and suitability as a parent.
The Bedias argue that although the law recognizes the right of a parent to his child's custody, ultimately
the primary consideration is what is best for the happiness and welfare of the latter. As maternal
grandparents who have amply demonstrated their love and affection for the boy since his infancy, they
claim to be in the best position to promote the child's welfare.
The issue to be resolved here boils down to who should properly be awarded custody of the minor Leouel
Santos, Jr.
The right of custody accorded to parents springs from the exercise of parental authority. Parental authority
orpatria potestas in Roman Law is the juridical institution whereby parents rightfully assume control and
protection of their unemancipated children to the extent required by the latter' s needs. 7 It is a mass of
rights and obligations which the law grants to parents for the purpose of the children's physical
preservation and development, as well as the cultivation of their intellect and the education of their heart
and senses. 8 As regards parental authority, "there is no power, but a task; no complex of rights, but a sum
of duties; no sovereignty but a sacred trust for the welfare of the minor." 9
Parental authority and responsibility are inalienable and may not be transferred or renounced except in
cases authorized by law. 10 The right attached to parental authority, being purely personal, the law allows
a waiver of parental authority only in cases of adoption, guardianship and surrender to a children's home
or an orphan institution. 11 When a parent entrusts the custody of a minor to another, such as a friend or
godfather, even in a document, what is given is merely temporary custody and it does not constitute a
renunciation of parental authority. 12 Even if a definite renunciation is manifest, the law still disallows the
same. 13
The father and mother, being the natural guardians of unemancipated children, are duty-bound and
entitled to keep them in their custody and
company. 14 The child's welfare is always the paramount consideration in all questions concerning his
care and custody.15
The law vests on the father and mother joint parental authority over the persons of their common
children. 16 In case of absence or death of either parent, the parent present shall continue exercising
parental authority. 17 Only in case of the parents' death, absence or unsuitability may substitute parental
authority be exercised by the surviving grandparent. 18The situation obtaining in the case at bench is one
where the mother of the minor Santos, Jr., is working in the United States while the father, petitioner
Santos, Sr., is present. Not only are they physically apart but are also emotionally separated. There has
been no decree of legal separation and petitioner's attempt to obtain an annulment of the marriage on the
ground of psychological incapacity of his wife has failed. 19
Petitioner assails the decisions of both the trial court and the appellate court to award custody of his minor
son to his parents-in-law, the Bedia spouses on the ground that under Art. 214 of the Family Code,
substitute parental authority of the grandparents is proper only when both parents are dead, absent or

unsuitable. Petitioner's unfitness, according to him, has not been successfully shown by private
respondents.
The Court of Appeals held that although there is no evidence to show that petitioner (Santos Sr.) is
"depraved, a habitual drunkard or poor, he may nevertheless be considered, as he is in fact so
considered, to be unsuitable to be allowed to have custody of minor Leouel Santos Jr." 20
The respondent appellate court, in affirming the trial court's order of October 8, 1990, adopted as its own
the latter's observations, to wit:
From the evidence adduced, this Court is of the opinion that it is to be (sic) best interest
of the minor Leouel Santos, Jr. that he be placed under the care, custody, and control of
his maternal grandparents the petitioners herein. The petitioners have amply
demonstrated their love and devotion to their grandson while the natural father,
respondent herein, has shown little interest in his welfare as reflected by his conduct in
the past. Moreover the fact that petitioners are well-off financially, should be carefully
considered in awarding to them the custody of the minor herein, lest the breaking of such
ties with his maternal grandparents might deprive the boy of an eventual college
education and other material advantages (Consaul vs. Consaul, 63 N.Y.S. 688).
Respondent had never given any previous financial support to his son, while, upon the
other hand, the latter receives so much bounty from his maternal grandparents and his
mother as well, who is now gainfully employed in the United States. Moreover, the fact
that respondent, as a military personnel who has to shuttle from one assignment to
another, and, in these troubled times, may have pressing and compelling military duties
which may prevent him from attending to his son at times when the latter needs him
most, militates strongly against said respondent. Additionally, the child is sickly and
asthmatic and needs the loving and tender care of those who can provide for it. 21
We find the aforementioned considerations insufficient to defeat petitioner's parental authority and the
concomitant right to have custody over the minor Leouel Santos, Jr., particularly since he has not been
shown to be an unsuitable and unfit parent. Private respondents' demonstrated love and affection for the
boy, notwithstanding, the legitimate father is still preferred over the grandparents. 22 The latter's wealth is
not a deciding factor, particularly because there is no proof that at the present time, petitioner is in no
position to support the boy. The fact that he was unable to provide financial support for his minor son from
birth up to over three years when he took the boy from his in-laws without permission, should not be
sufficient reason to strip him of his permanent right to the child's custody. While petitioner's previous
inattention is inexcusable and merits only the severest criticism, it cannot be construed as abandonment.
His appeal of the unfavorable decision against him and his efforts to keep his only child in his custody
may be regarded as serious efforts to rectify his past misdeeds. To award him custody would help
enhance the bond between parent and son. It would also give the father a chance to prove his love for his
son and for the son to experience the warmth and support which a father can give.
His being a soldier is likewise no bar to allowing him custody over the boy. So many men in uniform who
are assigned to different parts of the country in the service of the nation, are still the natural guardians of
their children. It is not just to deprive our soldiers of authority, care and custody over their children merely
because of the normal consequences of their duties and assignments, such as temporary separation from
their families.
Petitioner's employment of trickery in spiriting away his boy from his in-laws, though unjustifiable, is
likewise not a ground to wrest custody from him.

Private respondents' attachment to the young boy whom they have reared for the past three years is
understandable. Still and all, the law considers the natural love of a parent to outweigh that of the
grandparents, such that only when the parent present is shown to be unfit or unsuitable may the
grandparents exercise substitute parental authority, a fact which has not been proven here.
The strong bonds of love and affection possessed by private respondents as grandparents should not be
seen as incompatible with petitioner' right to custody over the child as a father. Moreover, who is to say
whether the petitioner's financial standing may improve in the future?
WHEREFORE, the petition is GRANTED. The decision of the respondent Court of Appeals dated April 30,
1992 as well as its Resolution dated November 13, 1992 are hereby REVERSED and SET ASIDE.
Custody over the minor Leouel Santos Jr. is awarded to his legitimate father, herein petitioner Leouel
Santos, Sr.
SO ORDERED.

January 16, 1997

TERESITA SAGALA-ESLAO, petitioner,
vs.
COURT OF APPEALS and MARIA PAZ CORDERO-OUYE, respondents.

TORRES, JR., J.:

Children begin by loving their parents. After a time they judge them. Rarely, if ever, do they forgive
them. 1 Indeed, parenthood is a riddle of no mean proportions except for its mission. Thus, a mother's
concern for her child's custody is undying such is a mother's love.
The right of the mother to the custody of her daughter is the issue in the case at bar.
In this petition for review, Teresita Sagala-Eslao seeks the reversal of the Court of Appeals
decision 2 dated March 25, 1994, which affirmed the trial court's judgment granting the petition of Maria
Paz Cordero-Ouye to recover the custody of her minor daughter from her mother-in-law, Teresita SagalaEslao.
As found by the Court of Appeals, the facts of the case are as follows:
From the evidence, it appears that on June 22, 1984, petitioner Maria Paz Cordero-Ouye and
Reynaldo Eslao were married; 3 after their marriage, the couple stayed with respondent Teresita
Eslao, mother of the husband, at 1825, Road 14, Fabie Estate, Paco, Manila; that out of their
marriage, two children were begotten, namely, Leslie Eslao who was born on February 23, 1986
and Angelica Eslao who was born on April 20,
1987; 4 in the meantime, Leslie was entrusted to the care and custody of petitioner's mother in
Sta. Ana, Pampanga, while Angelica stayed with her parents at respondent's house; on August 6,
1990, petitioner's husband Reynaldo Eslao died; 5 petitioner intended to bring Angelica with her to
Pampanga but the respondent prevailed upon her to entrust the custody of Angelica to her,
respondent reasoning out that her son just died and to assuage her grief therefor, she needed the

company of the child to at least compensate for the loss of her late son. In the meantime, the
petitioner returned to her mother's house in Pampanga where she stayed with Leslie.
Subsequently, petitioner was introduced by her auntie to Dr. James Manabu-Ouye, a JapaneseAmerican, who is an orthodontist practicing in the United States; their acquaintance blossomed
into a meaningful relationship where on March 18, 1992, the petitioner and Dr. James Ouye
decided to get married; less than ten months thereafter, or on January 15, 1993, the petitioner
migrated to San Francisco, California, USA, to join her new husband. At present, the petitioner is
a trainee at the Union Bank in San Francisco, while her husband is a progressive practitioner of
his profession who owns three cars, a dental clinic and earns US$5,000 a month. On June 24,
1993, the petitioner returned to the Philippines to be reunited with her children and bring them to
the United States; the petitioner then informed the respondent about her desire to take informed
the respondent about her desire to take custody of Angelica and explained that her present
husband, Dr. James Ouye, expressed his willingness to adopt Leslie and Angelica and to provide
for their support and education; however, respondent resisted the idea by way of explaining that
the child was entrusted to her when she was ten days old and accused the petitioner of having
abandoned Angelica. Because of the adamant attitude of the respondent, the petitioner then
sought the assistance of a lawyer, Atty. Mariano de Joya, Jr., who wrote a letter to the respondent
demanding for the return of the custody of Angelica to her natural mother 6 and when the demand
remain[ed] unheeded, the petitioner instituted the present action. 7
After the trial on the merits, the lower court rendered its decision, the dispositive portion of which reads:
WHEREFORE, finding the petition to be meritorious, the Court grants the same and let the
corresponding writ issue. As a corollary, respondent Teresita Sagala-Eslao or anyone acting
under her behalf is hereby directed to cause the immediate transfer of the custody of the minor
Angelica Cordero Eslao, to her natural mother, petitioner Maria Paz Cordero-Ouye.
No pronouncement as to costs.
SO ORDERED.
On appeal, the respondent court affirmed in full the decision of the trial court.
Hence, the instant petition by the minor's paternal grandmother, contending that the Court of Appeals
erred:
I
IN RULING THAT PRIVATE RESPONDENT MARIA PAZ CORDERO-OUYE, DID NOT
ABANDON MINOR, ANGELICA ESLAO, TO THE CARE AND CUSTODY OF THE PETITIONER
TERESITA SAGALA-ESLAO.
II
IN RULING THAT THERE WAS NO COMPELLING REASON TO SEPARATE MINOR,
ANGELICA ESLAO, FROM PRIVATE RESPONDENT MARIA PAZ CORDERO-OUYE, IN FAVOR
OF PETITIONER TERESITA SAGALA-ESLAO.
III

IN NOT FINDING THAT PETITIONER TERESITA SAGALA-ESLAO, IS FIT TO BE GIVEN THE

CUSTODY OF MINOR, ANGELICA ESLAO.
The petition is without merit.
Being interrelated, the issues shall be discussed jointly.
Petitioner argues that she would be deserving to take care of Angelica; that she had managed to raise 12
children of her own herself; that she has the financial means to carry out her plans for Angelica; that she
maintains a store which earns a net income of about P500 a day, she gets P900 a month as pension for
the death of her husband, she rents out rooms in her house which she owns, for which she earns a total
of P6,000 a month, and that from her gross income of roughly P21,000, she spends about P10,000 for the
maintenance of her house.
Despite the foregoing, however, and petitioner's "genuine desire to remain with said child, that would
qualify her to have custody of Angelica," the trial court's disquisition, in consonance with the provision that
the child's welfare is always the paramount consideration in all questions concerning his care and
custody 8 convinced this Court to decide in favor of private respondent, thus:
On the other hand, the side of the petitioner must also be presented here. In this case, we see a
picture of a real and natural mother who is
. . . legitimately, anxiously, and desperately trying to get back her child in order to
fill the void in her heart and existence. She wants to make up for what she has
failed to do for her boy during the period when she was financially unable to help
him and when she could not have him in her house because of the objection of
the father. Now that she has her own home and is in a better financial condition,
she wants her child back, and we repeat that she has not and has never given
him up definitely or with any idea of permanence. 9
The petitioner herein is married to an Orthodontist who has lucrative practice of his profession in
San Francisco, California, USA. The petitioner and her present husband have a home of their
own and they have three cars. The petitioner's husband is willing to adopt the petitioner's
children. If the children will be with their mother, the probability is that they will be afforded a
bright future. Contrast this situation with the one prevailing in the respondent's [grandmother's]
house. As admitted by the respondent, four of the rooms in her house are being rented to other
persons with each room occupied by 4 and 5 persons. Added to these persons are the
respondent's 2 sons, Samuel and Alfredo, and their respective families (ibid., p. 54) and one can
just visualize the kind of atmosphere pervading thereat. And to aggravate the situation, the house
has only 2 toilets and 3 faucets. Finally, considering that in all controversies involving the custody
of minors, the foremost criterion is the physical and moral well being of the child taking into
account the respective resources and social and moral situations of the contending parties (Union
III vs. Mariano, 101 SCRA 183), the Court is left with no other recourse but to grant the writ
prayed for. 10
Petitioner further contends that the respondent court erred in finding that there was no abandonment
committed by the private respondent; that while judicial declaration of abandonment of the child in a case
filed for the purpose is not her obtaining as mandated in Art. 229 of the Family Code because petitioner
failed to resort to such judicial action, it does not ipso facto follow that there was in fact no abandonment
committed by the private respondent.

Petitioner also argues that it has been amply demonstrated during the trial that private respondent had
indeed abandoned Angelica to the care and custody of the petitioner; that during all the time that Angelica
stayed with petitioner, there were only three instances or occasions wherein the private respondent saw
Angelica; that private respondent never visited Angelica on important occasions, such as her birthday,
and neither did the former give her cards or gifts, "not even a single candy;" 11 that while private
respondent claims otherwise and that she visited Angelica "many times" and insists that she visited
Angelica as often as four times a month and gave her remembrances such as candies and clothes, she
would not even remember when the fourth birthday of Angelica was.
We are not persuaded by such averments.
In Santos, Sr. vs. Court of Appeals, 242 SCRA 407, 12 we stated, viz:
. . . [Parental authority] is a mass of rights and obligations which the law grants to parents for the
purpose of the children's physical preservation and development, as well as the cultivation of their
intellect and the education of their heart and senses. 13 As regards parental authority, "there is no
power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for
the welfare of the minor." 14
Parental authority and responsibility are inalienable and may not be transferred or renounced
except in cases authorized by law. 15 The right attached to parental authority, being purely
personal, the law allows a waiver of parental authority only in cases of adoption, guardianship
and surrender to a children's home or an orphan institution. 16 When a parent entrusts the custody
of a minor to another, such as a friend or godfather, even in a document, what is given is merely
temporary custody and it does not constitute a renunciation of parental authority. 17 Even if a
definite renunciation is manifest, the law still disallows the same. 18
The father and mother, being the natural guardians of unemancipated children, are duty-bound
and entitled to keep them in their custody and company. 19
Thus, in the instant petition, when private respondent entrusted the custody of her minor child to the
petitioner, what she gave to the latter was merely temporary custody and it did not constitute
abandonment or renunciation of parental authority. For the right attached to parental authority, being
purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and
surrender to a children's home or an orphan institution which do not appear in the case at bar.
Of considerable importance is the rule long accepted by the courts that "the right of parents to the custody
of their minor children is one of the natural rights incident to parenthood, a right supported by law and
sound public policy. The right is an inherent one, which is not created by the state or decisions of the
courts, but derives from the nature of the parental relationship. 20
IN VIEW WHEREOF, the decision appealed from dated March 25, 1994 being in accordance with law and
the evidence, the same is hereby AFFIRMED and the petition DISMISSED for lack of merit.
SO ORDERED.

G.R. No. 144763. September 3, 2002

REYMOND B. LAXAMANA, petitioner, vs. MA. LOURDES* D. LAXAMANA, respondent.

DECISION
YNARES-SANTIAGO, J.:
This is another sad tale of an estranged couples tug-of-war over the custody of their minor
children. Petitioner Reymond B. Laxamana and respondent Ma. Lourdes D. Laxamana met sometime in
1983. Petitioner, who came from a well-to-do family, was a graduate of Bachelor of Laws, while
respondent, a holder of a degree in banking and finance, worked in a bank. After a whirlwind courtship,
petitioner, 31 years old and respondent, 33, got married on June 6, 1984. [1] Respondent quit her job and
became a full-time housewife. Petitioner, on the other hand, operated buy and sell, fishpond, and
restaurant businesses for a living. The union was blessed with three children twin brothers Joseph and
Vincent, born on March 15, 1985, and Michael, born on June 19, 1986. [2]
All went well until petitioner became a drug dependent. In October 1991, he was confined at the
Estrellas Home Care Clinic in Quezon City. He underwent psychotherapy and psychopharmacological
treatment and was discharged on November 16, 1991. [3] Upon petition of respondent, the Regional Trial
Court of Quezon City, Branch 101, ordered petitioners confinement at the NARCOM-DRC for treatment
and rehabilitation.[4] Again, on October 30, 1996, the trial court granted petitioners voluntary confinement
for treatment and rehabilitation at the National Bureau of Investigation-TRC. [5]
On April 25, 1997, the court issued an order declaring petitioner already drug-free and directing him
to report to a certain Dr. Casimiro for out-patient counseling for 6 months to one (1) year. [6]
Despite several confinements, respondent claimed petitioner was not fully rehabilitated. His drug
dependence worsened and it became difficult for respondent and her children to live with him. Petitioner
allegedly became violent and irritable. On some occasions, he even physically assaulted
respondent. Thus, on June 17, 1999, respondent and her 3 children abandoned petitioner and
transferred to the house of her relatives.
On August 31, 1999, petitioner filed with the Regional Trial Court of Quezon City, Branch 107, the
instant petition for habeas corpus praying for custody of his three children.[7]Respondent opposed the
petition, citing the drug dependence of petitioner.[8]
Meanwhile, on September 24, 1999, respondent filed a petition for annulment of marriage with
Branch 102 of the Regional Trial Court of Quezon City.[9]
On September 27, 1999, petitioner filed in the habeas corpus case, a motion seeking visitation rights
over his children.[10] On December 7, 1999, after the parties reached an agreement, the court issued an
order granting visitation rights to petitioner and directing the parties to undergo psychiatric and
psychological examination by a psychiatrist of their common choice. The parties further agreed to submit
the case for resolution after the trial courts receipt of the results of their psychiatric examination. The full
text of said order reads:
The parties appeared with their respective lawyers. A conference was held in open Court and the parties
agreed on the following:
Effective this Saturday and every Saturday thereafter until further order the petitioner shall fetch
the children every Saturday and Sunday at 9:00 oclock in the morning from the house of the

sister of respondent, Mrs. Corazon Soriano and to be returned at 5:00 oclock in the afternoon of
the same days.
That the parties agreed to submit themselves to Dr. Teresito Ocampo for
psychiatric/psychological examination. Dr. Ocampo is hereby advised to go over the records of
this case to enable him to have a thorough background of the problem. He is hereby ordered to
submit his findings directly to this Court without furnishing the parties copies of his report. And
after the receipt of that report, thereafter, the case shall be deemed submitted for decision. [11]
On January 6, 2000, Dr. Ocampo submitted the results of his psychiatric evaluation on the parties
and their children. Pertinent portions thereof state:
SINGLY and COLLECTIVELY, the following information was obtained in the interview of the 3 children:
(1)

(2)

THEY were affected psychologically by the drug-related behavior of their father:

a.

they have a difficult time concentrating on their studies.

b.

they are envious of their classmates whose families live in peace and harmony.

c.

once, MICHAEL had to quit school temporarily.

THEY witnessed their father when he was under the influence of shabu.

(3)
THEY think their father had been angry at their paternal grandmother and this anger was
displaced to their mother.
(4)
THEY hope their father will completely and permanently recover from his drug habit; and
their criteria of his full recovery include:
a.

he will regain his easy-going attitude.

b.

he wont be hot-headed anymore and would not drive their van recklessly.

c.

he would not tell unverifiable stories anymore.

d.

he would not poke a gun on his own head and ask the children who they love
better, mom or dad.

(5)
At one point one of the sons, became very emotional while he was narrating his story and
he cried. I had to stop the interview.
(6)

THEIR mother was fearful and terrified when their father quarreled with her.

(7)
THEY hope their visits to their father will not interfere with their school and academic
schedules.
xxx

xxx

xxx

(3)
MARILOU is one of 4 siblings. She graduated from college with a degree in banking and
finance. SHE was a carreer (sic) woman; worked for a bank for ten years; subsequently quit her
job to devote more time to her family.
(4)
REYMOND is one of 5 siblings in a well-to-do family. His father was a physician. During
his developmental years, he recalled how his mother complained incessantly about how bad the
father was; only to find later that the truth was opposite to the complaints of his mother; that his
father was nice, logical and understanding. He recalled how he unselfishly served his father --he opened the door when he arrived home; he got his portfolio; he brought the days newspaper;
he removed his shoes; he brought his glass of beer or his shot of whisky. In short, he served him
like a servant. His father died of stroke in 1990.
REYMOND graduated from college with a degree in LAW in 1984; he did not pass the bar.
His work history is as follows:
a.

1985 to 1989 he operated fishponds.

b.

1976 to 1991 simultaneously, he operated restaurant.

c.

1991 he engaged in the trading of vegetable, cooking oil, and mangos.

d.

HE handled the leasing of a family property to a fast food company.

The findings on the examination of the MENTAL STATUS and MENTAL PROCESSES OF
MARILOU showed a woman who showed the psychological effects of the trauma she had in the
past. She is slightly edgy and fidgety with any external noise. SHE answered all my questions
coherently. Her emotional state was stable throughout the interview. She is of average
intelligence. She was oriented to person, place and date. Her memory for recent and remote
events was intact. She could process sets of figures and sets of similarities and differences. Her
content of thought was negative for delusions, hallucinations, paranoia, suicidal and homicidal
ideation. She could process abstract ideas and general information. Her attention span was
adequate. There was no evidence of impaired judgment.
The Rorschach ink blot test gave responses such as man touching a woman, 2 people on a hifive , 2 women chatting, beast, stuffed animal, etc. Her past reflected on her
psyche. There is no creative process. There were no bizarre ideas.
The ZUNG anxiety/depression test highlighted I get tired for no reason; I feel that I am useful
and needed (re, son). There is moderate depression. However, she could still make competent
decisions.
The Social Adaptation Scale scored well in her capacity to adapt to her situation. There is no
evidence of losing control.
The findings on the examination of the MENTAL STATUS and MENTAL PROCESSES of
REYMOND showed an individual who presented himself in the best situation he could possibly
be. He is cool, calm and collected. He answered all my questions coherently. He is of average
intelligence. He was oriented to person, place and date. His memory for recent and remote
events was intace (sic). His content of thought was negative for delusions, hallucinations,

paranoia, suicidal and homicidal ideation. His attention span was adequate. He could process
abstract ideas, sets of figures, and general information.
The Rorschach ink blot test gave responses such as distorted chest , butterfly with scattered
color, cat ran over by a car, nothing 2 people, monster etc. There is no central theme in
his responses. There were no bizarre ideas.
The Zung anxiety/depression test: My mind is as clear as it used to be (most of the time). There
was no evidence of brain damage. There is no significant affective response that would affect his
rationality.
The Social Adaptive Scale scored well in his capacity to adapt to his situation. He reached out
well to others. He is in very good control of his emotions.
BASED ON MY FINDINGS I MADE THE FOLLOWING COMMENTS AND CONCLUSIONS:
I. The CRITERIA for cure in drug addiction consist of:
1.

5-years and 10-years intervals of drug-free periods.

2.

change for the better of the maladaptive behaviors of the addict consisting of
telling lies, manipulative behavior, melodramatic and hysterical actions.

3.

constructive and reproductive outlets for the mental and physical energies of the
addict.

4.

behavior oriented towards spiritual values and other things.

II BASED on such scientific and observable criteria, I do not yet consider REYMOND
LAXAMANA completely cured even though his drug urine test at Medical City for shabu
was negative. (Emphasis supplied)
III I DO NOT DETECT any evidence that the paternal visits of the sons would be harmful or they
would be in any danger. The academic schedules of the sons has be taken into account in
determining the length and frequency of their visits.
xxx

xxx

x x x.[12]

On January 14, 2000, the trial court rendered the assailed decision awarding the custody of the three
children to respondent and giving visitation rights to petitioner. The dispositive portion thereof states:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1.
The children, Joseph, Michael and Vincent all surnamed Laxamana are hereby ordered to
remain under the custody of the respondent.
2.
The visitation arrangement as per Order of December 7, 1999 is hereby incorporated and
forms part of this Decision. The parties are enjoined to comply with the terms stated therein.

3.
The petitioner is hereby ordered to undergo urine drug screen for shabu for three times (3x)
per month every ten (10) days, with the Dangerous Drugs Board. The said Board is hereby ordered
to submit the results of all tests immediately as directed to this Court.
4.
The petitioner is hereby referred to undergo regular counseling at the Free-Clinic at the East
Avenue Medical Center, Department of Health Out Patient Psychiatry Department until further
order. For this purpose, it is suggested that he should see Dr. Teresito P. Ocampo to make
arrangements for said counseling.
Let copies of this Decision be furnished the Dangerous Drugs Board and the Free-Clinic, Out Patient
Psychiatry Department, East Avenue Medical Center, Department of Health for their information and
guidance.
SO ORDERED.[13]
Aggrieved, petitioner filed the instant petition for review on certiorari under Rule 45 of the Rules of
Court, based on the following:
I
The court a quo has departed from the accepted and usual course of judicial proceedings when it
resolved the issue of custody without conducting a trial to determine factual issues.
II
The court a quo has resolved the issue of custody in a manner not in accord with law and with the
applicable decisions of this honorable Supreme Court when it resolved the issue of custody without
considering the paramount interest and welfare of herein parties three (3) minor children.
III
The assailed decision is null and void as it does not comply with Section 14 Article VIII of the Constitution
of the Republic of the Philippines.[14]
The core issue for resolution in the instant petition is whether or not the trial court considered the
paramount interest and welfare of the children in awarding their custody to respondent.
In controversies involving the care, custody and control of their minor children, the contending
parents stand on equal footing before the court who shall make the selection according to the best
interest of the child. The child if over seven years of age may be permitted to choose which parent
he/she prefers to live with, but the court is not bound by such choice if the parent so chosen is unfit. In all
cases, the sole and foremost consideration is the physical, educational, social and moral welfare of the
child concerned, taking into account the respective resources as well as social and moral situations of the
opposing parents.[15]
In Medina v. Makabali,[16] we stressed that this is as it should be, for in the continual evolution of legal
institutions, the patria potestas (paternal power) has been transformed from the jus vitae ac necis (right of
life and death) of the Roman law, under which the offspring was virtually a chattel of his parents, into a
radically different institution, due to the influence of Christian faith and doctrines. The obligational aspect

is now supreme. There is no power, but a task; no complex rights of parents but a sum of duties; no
sovereignty, but a sacred trust for the welfare of the minor.
Mindful of the nature of the case at bar, the court a quo should have conducted a trial
notwithstanding the agreement of the parties to submit the case for resolution on the basis, inter alia, of
the psychiatric report of Dr. Teresito. Thus, petitioner is not estopped from questioning the absence of a
trial considering that said psychiatric report, which was the courts primary basis in awarding custody to
respondent, is insufficient to justify the decision. The fundamental policy of the State to promote and
protect the welfare of children shall not be disregarded by mere technicality in resolving disputes which
involve the family and the youth.[17] While petitioner may have a history of drug dependence, the records
are inadequate as to his moral, financial and social well-being. The results of the psychiatric evaluation
showing that he is not yet completely cured may render him unfit to take custody of the children, but
there is no evidence to show that respondent is unfit to provide the children with adequate support,
education, as well as moral and intellectual training and development. Moreover, the children in this case
were 14 and 15 years old at the time of the promulgation of the decision, yet the court did not ascertain
their choice as to which parent they want to live with. In its September 8, 1999 order, the trial court
merely stated that: The children were asked as to whether they would like to be with petitioner but there
are indications that they entertain fears in their hearts and want to be sure that their father is no longer a
drug dependent.[18] There is no showing that the court ascertained the categorical choice of the children.
These inadequacies could have been remedied by an exhaustive trial probing into the accuracy of Dr.
Ocampos report and the capacity of both parties to raise their children. The trial court was remiss in the
fulfillment of its duties when it approved the agreement of the parties to submit the case for decision on
the basis of sketchy findings of facts.
In Lacson v. Lacson,[19] the case was remanded to the trial court with respect to the issue of
custody. In the said case, the court a quo resolved the question of the childrens custody based on the
amicable settlement of the spouses. Stressing the need for presentation of evidence and a thorough
proceedings, we explained
It is clear that every child [has] rights which are not and should not be dependent solely on the
wishes, much less the whims and caprices, of his parents. His welfare should not be subject to the
parents' say-so or mutual agreement alone. Where, as in this case, the parents are already
separated in fact, the courts must step in to determine in whose custody the child can better be
assured the rights granted to him by law. The need, therefore, to present evidence regarding this
matter, becomes imperative. A careful scrutiny of the records reveals that no such evidence was
introduced in the CFI. This latter court relied merely on the mutual agreement of the spousesparents. To be sure, this was not sufficient basis to determine the fitness of each parent to be the
custodian of the children.
Besides, at least one of the children Enrique, the eldest is now eleven years of age and should
be given the choice of the parent he wishes to live with. x x x.
In the instant case, the proceedings before the trial court leave much to be desired. While a remand
of this case would mean further delay, the childrens paramount interest demand that further proceedings
be conducted to determine the fitness of both petitioner and respondent to assume custody of their minor
children.
WHEREFORE, in view of all the foregoing, the instant case is REMANDED to the Regional Trial
Court of Quezon City, Branch 107, for the purpose of receiving evidence to determine the fitness of
petitioner and respondent to take custody of their children. Pending the final disposition of this case,

custody shall remain with respondent but subject to petitioners visitation rights in accordance with the
December 7, 1999 order of the trial court.
SO ORDERED.

June 28, 2005

JOYCELYN PABLO-GUALBERTO, petitioner,
vs.
CRISANTO RAFAELITO GUALBERTO V, respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 156254

June 28, 2005

CRISANTO RAFAELITO G. GUALBERTO V, petitioner,

vs.
COURT OF APPEALS; Hon. HELEN B. RICAFORT, Presiding Judge, Regional Trial Court
Paraaque City, Branch 260; and JOYCELYN D. PABLO-GUALBERTO, respondents.
DECISION
PANGANIBAN, J.:
When love is lost between spouses and the marriage inevitably results in separation, the bitterest tussle is
often over the custody of their children. The Court is now tasked to settle the opposing claims of the
parents for custodypendente lite of their child who is less than seven years of age. There being no
sufficient proof of any compelling reason to separate the minor from his mother, custody should remain
with her.
The Case
Before us are two consolidated petitions. The first is a Petition for Review1 filed by Joycelyn PabloGualberto under Rule 45 of the Rules of Court, assailing the August 30, 2002 Decision 2 of the Court of
Appeals (CA) in CA-GR SP No. 70878. The assailed Decision disposed as follows:
"WHEREFORE, premises considered, the Petition for Certiorari is hereby GRANTED. The
assailed Order of May 17, 2002 is hereby SET ASIDE and ANNULLED. The custody of the child
is hereby ordered returned to [Crisanto Rafaelito G. Gualberto V].
"The [respondent] court/Judge is hereby directed to consider, hear and resolve [petitioners]
motion to lift the award of custody pendente lite of the child to [respondent]."3
The second is a Petition for Certiorari4 filed by Crisanto Rafaelito Gualberto V under Rule 65 of the Rules
of Court, charging the appellate court with grave abuse of discretion for denying his Motion for Partial
Reconsideration of the August 30, 2002 Decision. The denial was contained in the CAs November 27,
2002 Resolution, which we quote:

"We could not find any cogent reason why the [last part of the dispositive portion of our Decision
of August 30, 2002] should be deleted, hence, subject motion is hereby DENIED." 5
The Facts
The CA narrated the antecedents as follows:
"x x x [O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto V] filed before [the Regional Trial Court of
Paraaque City] a petition for declaration of nullity of his marriage to x x x Joycelyn D. Pablo Gualberto,
with an ancillary prayer for custody pendente lite of their almost 4-year-old son, minor Rafaello (the child,
for brevity), whom [Joycelyn] allegedly took away with her from the conjugal home and his school (Infant
Toddlers Discovery Center in Paraaque City) when [she] decided to abandon [Crisanto] sometime in
early February 2002[.] x x x [O]n April 2, 2002, [RTC Judge Helen B. Ricafort] heard the ancillary prayer of
[Crisanto] for custody pendente lite. x x x [B]ecause [Joycelyn] allegedly failed to appear despite notice,
[Crisanto], a certain Col. Renato Santos, and Ms. Cherry Batistel, testified before the x x x Judge; x x x
documentary evidence [was] also presented[.] x x x [O]n April 3, 2002, x x x [the] Judge awarded
custody pendente lite of the child to [Crisanto.] [T]he Order partly read x x x:
x x x Crisanto Rafaelito Gualberto V testified. He stated that [Joycelyn] took their minor child with her to
Caminawit, San Jose, Occidental Mindoro. At that time, the minor was enrolled at B.F. Homes, Paraaque
City. Despite effort[s] exerted by him, he has failed to see his child. [Joycelyn] and the child are at present
staying with the formers step-father at the latters [residence] at Caminawit, San Jose, Occidental
Mindoro.
Renato Santos, President of United Security Logistic testified that he was commissioned by [Crisanto] to
conduct surveillance on [Joycelyn] and came up with the conclusion that [she] is having lesbian relations
with one Noreen Gay Cuidadano in Cebu City.
The findings of Renato Santos [were] corroborated by Cherry Batistel, a house helper of the spouses
who stated that [the mother] does not care for the child as she very often goes out of the house and on
one occasion, she saw [Joycelyn] slapping the child.
Art. 211 of the Family Code provides as follows:
The father and the mother shall jointly exercise parental authority over the persons of their children. In
the case of disagreement, the fathers decision shall prevail, unless there is a judicial order to the
contrary.
The authority of the father and mother over their children is exercised jointly. This recognition, however,
does not place her in exactly the same place as the father; her authority is subordinated to that of the
father.
In all controversies regarding the custody of minors, the sole and foremost consideration is the physical,
educational, social and moral welfare of the child, taking into account the respective resources and social
and moral situations of the contending parties.
The Court believes that [Joycelyn] had no reason to take the child with her. Moreover, per Sheriff returns,
she is not with him at Caminawit, San Jose, Occidental Mindoro.

WHEREFORE, pendente lite, the Court hereby awards custody of the minor, Crisanto Rafaello P.
Gualberto X to his father, Crisanto Rafaelito G. Gualberto V.
"x x x [O]n April 16, 2002, the hearing of [Joycelyns] motion to lift the award of custody pendente lite of
the child to [Crisanto] was set but the former did not allegedly present any evidence to support her
motion. However, on May 17, 2002, [the] Judge allegedly issued the assailed Order reversing her Order
of April 3, 2002 and this time awarding custody of the child to [Joycelyn]. [T]he entire text of the Order [is]
herein reproduced, to wit:
Submitted is [Crisantos] Motion to Resolve Prayer for Custody Pendente Lite and [Joycelyns] Motion to
Dismiss and the respective Oppositions thereto.
[Joycelyn], in her Motion to Dismiss, makes issue of the fact that the person referred to in the caption of
the Petition is one JOCELYN Pablo Gualberto and not Joycelyn Pablo Gualberto. [Joycelyn] knows she is
the person referred to in the Complaint. As a matter of fact, the body of the Complaint states her name
correct[ly]. The law is intended to facilitate and promote the administration of justice, not to hinder or delay
it. Litigation should be practicable and convenient. The error in the name of Joycelyn does not involve
public policy and has not prejudiced [her].
This case was filed on March 12, 2002. Several attempts were made to serve summons on [Joycelyn] as
shown by the Sheriffs returns. It appears that on the 4th attempt on March 21, 2002, both Ma. Daisy and
x x x Ronnie Nolasco, [Joycelyns mother and stepfather, respectively,] read the contents of the
documents presented after which they returned the same.lawphil.net
The Court believes that on that day, summons was duly served and this Court acquired jurisdiction over
[Joycelyn].
The filing of [Joycelyns annulment] case on March 26, 2002 was an after thought, perforce the Motion to
[D]ismiss should be denied.
The child subject of this Petition, Crisanto Rafaello P. Gualberto is barely four years old. Under Article
213 of the Family Code, he shall not be separated from his mother unless the Court finds compelling
reasons to order otherwise. The Court finds the reason stated by [Crisanto] not [to] be compelling
reasons. The father should however be entitled to spend time with the minor. These do not appear
compelling reasons to deprive him of the company of his child.
When [Joycelyn] appeared before this Court, she stated that she has no objection to the father visiting
the child even everyday provided it is in Mindoro.
The Court hereby grants the mother, [Joycelyn], the custody of Crisanto Rafaello P. Gualberto, with [the]
right of [Crisanto] to have the child with him every other weekend.
WHEREFORE:
1. The [M]otion to Dismiss is hereby DENIED;
2. Custody pendente lite is hereby given to the mother Joycelyn Pablo Gualberto with the right of
the father, x x x [Crisanto], to have him every other week-end.

3. Parties are admonished not to use any other agencies of the government like the CIDG to
interfere in this case and to harass the parties." 6
In a Petition for Certiorari7 before the CA, Crisanto charged the Regional Trial Court (Branch 260) of
Paraaque City with grave abuse of discretion for issuing its aforequoted May 17, 2002 Order. He alleged
that this Order superseded, without any factual or legal basis, the still valid and subsisting April 3, 2002
Order awarding him custody pendente lite of his minor son; and that it violated Section 14 of Article VII of
the 1987 Constitution.
Ruling of the Court of Appeals
Partly in Crisantos favor, the CA ruled that grave abuse of discretion had been committed by the trial
court in reversing the latter courts previous Order dated April 3, 2002, by issuing the assailed May 17,
2002 Order. The appellate court explained that the only incident to resolve was Joycelyns Motion to
Dismiss, not the issuance of the earlier Order. According to the CA, the prior Order awarding provisional
custody to the father should prevail, not only because it was issued after a hearing, but also because the
trial court did not resolve the correct incident in the later Order.
Nonetheless, the CA stressed that the trial court judge was not precluded from considering and resolving
Joycelyns Motion to lift the award of custody pendente lite to Crisanto, as that Motion had yet to be
properly considered and ruled upon. However, it directed that the child be turned over to him until the
issue was resolved.
Hence, these Petitions.8
Issues
In GR No. 154994, Petitioner Joycelyn submits these issues for our consideration:
"1. Whether or not the Respondent Court of Appeals, when it awarded the custody of the child to
the father, violated Art. 213 of the Family Code, which mandates that no child under seven years
of age shall be separated from the mother, unless the court finds compelling reasons to order
otherwise.
"2. Is it Article 213 or Article 211 which applies in this case involving four-year old Rafaello?" 9
On the other hand, Crisanto raises the following issues:
"A. Did Respondent Court commit grave abuse of discretion amounting to or in excess of
jurisdiction when, in its August 30, 2002 Decision, it ordered respondent court/Judge to consider,
hear and resolve the motion to lift award of custody pendente lite of the child to petitioner and x x
x denied the motion for reconsideration thereof in its November 27, 2002 Resolution, considering
that: (1) there is no such motion ever, then or now pending, with the court a quo; (2) the
November 27, 2002 Resolution is unconstitutional; and (3) the April 3, 2002 Order of respondent
Judge, the validity of which has been upheld in the August 30, 2002 Decision of the respondent
Court, has become final and executory; and
"B. Ought not the ancillary remedies [o]f habeas corpus, because the whereabouts, physical and
mental condition of the illegally detained Minor Rafaello is now unknown to petitioner and
preliminary mandatory injunction with urgent prayer for immediate issuance of preliminary

[injunction], petitioner having a clear and settled right to custody of Minor Rafaello which has
been violated and still is being continuously violated by [petitioner Joycelyn], be granted by this
Honorable Court?"10
Being interrelated, the procedural challenges and the substantive issues in the two Petitions will be
addressed jointly.
The Courts Ruling
There is merit in the Petition of Jocelyn in GR No. 154994, but not in GR No. 156254.
Preliminary Issue:
The Alleged Prematurity of the Petition in GR No. 154994
Before going into the merits of the present controversy, the Court shall first dispose of a threshold issue.
In GR No. 154994, therein Respondent Crisanto contends that the Petition for Review was filed beyond
the deadline (October 24, 2002) allowed by the Rules of Court and by this Court. He claims that Registry
Bill No. 88 shows that the Petition was sent by speed mail, only on November 4, 2002. Furthermore, he
assails the Petition for its prematurity, since his Motion for Partial Reconsideration of the August 30, 2002
CA Decision was still pending before the appellate court. Thus, he argues that the Supreme Court has no
jurisdiction over Joycelyns Petition.
Timeliness of the Petition
The manner of filing and service Joycelyns Petition by mail is governed by Sections 3 and 7 of Rule 13 of
the Rules of Court, which we quote:
"SEC. 3. Manner of filing. The filing of pleadings, appearances, motions, notices, orders, judgments and
all other papers shall be made by presenting the original copies thereof, plainly indicated as such
personally to the clerk of court or by sending them by registered mail. xxx In the second case, the date of
mailing of motions, pleadings and other papers or payments or deposits, as shown by the post office
stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment, or
deposit in court. The envelope shall be attached to the records of the case.
"x x x x x x x x x
"SEC. 7. Service by mail. Service by registered mail shall be made by depositing the copy in the office,
in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his
residence, if known, with postage fully pre-paid, and with instructions to the postmaster to return the mail
to the sender after ten (10) days if undelivered. If no registry service is available in the locality of either the
sender of the addressee, service may be done by ordinary mail. (Italics supplied)
The records disclose that Joycelyn received the CAs August 30, 2002 Decision on September 9, 2002.
On September 17, she filed before this Court a Motion for a 30-day extension of time to file a petition for
review on certiorari. This Motion was granted,11 and the deadline was thus extended until October 24,
2002.
A further perusal of the records reveals that copies of the Petition were sent to this Court and to the
parties by registered mail12 at the Bian, Laguna Post Office on October 24, 2002. This is the date clearly

stamped on the face of the envelope13 and attested to in the Affidavit of Service14 accompanying the
Petition. Petitioner Joycelyn explained that the filing and the service had been made by registered mail
due to the "volume of delivery assignments and the lack of a regular messenger." 15
The Petition is, therefore, considered to have been filed on October 24, 2002, its mailing date as shown
by the post office stamp on the envelope. The last sentence of Section 3 of Rule 13 of the Rules provides
that the date of filing may be shown either by the post office stamp on the envelope or by the registry
receipt. Proof of its filing, on the other hand, is shown by the existence of the petition in the record,
pursuant to Section 12 of Rule 13.16
The postmaster satisfactorily clarifies that Registry Bill No. 88, which shows the date November 2, 2002,
merely discloses when the mail matters received by the Bian Post Office on October 24, 2002, were
dispatched or sent to the Central Mail Exchange for distribution to their final destinations. 17 The Registry
Bill does not reflect the actual mailing date. Instead, it is the postal Registration Book 18 that shows the list
of mail matters that have been registered for mailing on a particular day, along with the names of the
senders and the addressees. That book shows that Registry Receipt Nos. 2832-A and 2832-B, pertaining
to the mailed matters for the Supreme Court, were issued on October 24, 2002.
Prematurity of the Petition
As to the alleged prematurity of the Petition of Joycelyn, Crisanto points out that his Urgent Motion for
Partial Reconsideration19 was still awaiting resolution by the CA when she filed her Petition before this
Court on October 24, 2002. The CA ruled on the Motion only on November 27, 2002.
The records show, however, that the Motion of Crisanto was mailed only on September 12, 2002. Thus,
on September 17, 2002, when Joycelyn filed her Motion for Extension of Time to file her Petition for
Review, she might have still been unaware that he had moved for a partial reconsideration of the August
20, 2002 CA Decision. Nevertheless, upon being notified of the filing of his Motion, she should have
manifested that fact to this Court.
With the CAs final denial of Crisantos Motion for Reconsideration, Joycelyns lapse may be excused in
the interest of resolving the substantive issues raised by the parties.
First Issue:
Grave Abuse of Discretion
In GR No. 156254, Crisanto submits that the CA gravely abused its discretion when it ordered the trial
court judge to "consider, hear and resolve the motion to lift the award of custody pendente lite" without
any proper motion by Joycelyn and after the April 3, 2002 Order of the trial court had become final and
executory. The CA is also charged with grave abuse of discretion for denying his Motion for Partial
Reconsideration without stating the reasons for the denial, allegedly in contravention of Section 1 of Rule
36 of the Rules of Court.
The Order to Hear the Motion to Lift the Award of Custody Pendente Lite Proper
To begin with, grave abuse of discretion is committed when an act is 1) done contrary to the Constitution,
the law or jurisprudence;20 or 2) executed "whimsically or arbitrarily" in a manner "so patent and so gross
as to amount to an evasion of a positive duty, or to a virtual refusal to perform the duty enjoined." 21 What

constitutes grave abuse of discretion is such capricious and arbitrary exercise of judgment as that which
is equivalent, in the eyes of the law, to lack of jurisdiction. 22
On the basis of these criteria, we hold that the CA did not commit grave abuse of discretion.
First, there can be no question that a court of competent jurisdiction is vested with the authority to resolve
even unassigned issues. It can do so when such a step is indispensable or necessary to a just resolution
of issues raised in a particular pleading or when the unassigned issues are inextricably linked or germane
to those that have been pleaded.23 This truism applies with more force when the relief granted has been
specifically prayed for, as in this case.
Explicit in the Motion to Dismiss24 filed by Joycelyn before the RTC is her ancillary prayer for the court to
lift and set aside its April 3, 2002 Order awarding to Crisanto custody pendente lite of their minor son.
Indeed, the necessary consequence of granting her Motion to Dismiss would have been the setting aside
of the Order awarding Crisanto provisional custody of the child. Besides, even if the Motion to Dismiss
was denied -- as indeed it was -- the trial court, in its discretion and if warranted, could still have granted
the ancillary prayer as an alternative relief.
Parenthetically, Joycelyns Motion need not have been verified because of the provisional nature of the
April 3, 2002 Order. Under Rule 3825 of the Rules of Court, verification is required only when relief is
sought from a final and executory Order. Accordingly, the court may set aside its own orders even without
a proper motion, whenever such action is warranted by the Rules and to prevent a miscarriage of
justice.26
Denial of the Motion for Reconsideration Proper
Second, the requirement in Section 1 of Rule 36 (for judges to state clearly and distinctly the reasons for
their dispositions) refers only to decisions and final orders on the merits, not to those resolving incidental
matters.27The provision reads:
"SECTION 1. Rendition of judgments and final orders. A judgment or final order determining the merits
of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly
the facts and the law on which it is based, signed by him, and filed with the clerk of court." (Italics
supplied)
Here, the declaration of the nullity of marriage is the subject of the main case, in which the issue of
custodypendente lite is an incident. That custody and support of common children may be ruled upon by
the court while the action is pending is provided in Article 49 of the Family Code, which we quote :
"Art. 49. During the pendency of the action28 and in the absence of adequate provisions in a written
agreement between the spouses, the Court shall provide for the support of the spouses and the custody
and support of their common children. x x x."
Clearly then, the requirement cited by Crisanto is inapplicable. In any event, in its questioned Resolution,
the CA clearly stated that it "could not find any cogent reason" to reconsider and set aside the assailed
portion of its August 30, 2002 Decision.
The April 3, 2002 Order Not Final and Executory

Third, the award of temporary custody, as the term implies, is provisional and subject to change as
circumstances may warrant. In this connection, there is no need for a lengthy discussion of the alleged
finality of the April 3, 2002 RTC Order granting Crisanto temporary custody of his son. For that matter,
even the award of child custody after a judgment on a marriage annulment is not permanent; it may be
reexamined and adjusted if and when the parent who was given custody becomes unfit. 29
Second Issue:
Custody of a Minor Child
When love is lost between spouses and the marriage inevitably results in separation, the bitterest tussle is
often over the custody of their children. The Court is now tasked to settle the opposing claims of the
parents for custodypendente lite of their child who is less than seven years old.30 On the one hand, the
mother insists that, based on Article 213 of the Family Code, her minor child cannot be separated from
her. On the other hand, the father argues that she is "unfit" to take care of their son; hence, for
"compelling reasons," he must be awarded custody of the child.
Article 213 of the Family Code31 provides:
"ART. 213. In case of separation of the parents, parental authority shall be exercised by the
parent designated by the court. The court shall take into account all relevant considerations,
especially the choice of the child over seven years of age, unless the parent chosen is unfit.
No child under seven years of age shall be separated from the mother, unless the court finds
compelling reasons to order otherwise."
This Court has held that when the parents are separated, legally or otherwise, the foregoing provision
governs the custody of their child.32 Article 213 takes its bearing from Article 363 of the Civil Code, which
reads:
"Art. 363. In all questions on the care, custody, education and property of children, the latters
welfare shall be paramount. No mother shall be separated from her child under seven years of
age, unless the court finds compelling reasons for such measure."(Italics supplied)
The general rule that children under seven years of age shall not be separated from their mother finds
its raison detre in the basic need of minor children for their mothers loving care. 33 In explaining the
rationale for Article 363 of the Civil Code, the Code Commission stressed thus:
"The general rule is recommended in order to avoid a tragedy where a mother has seen her baby
torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child
of tender age. The exception allowed by the rule has to be for compelling reasons for the good of
the child: those cases must indeed be rare, if the mothers heart is not to be unduly hurt. If she
has erred, as in cases of adultery, the penalty of imprisonment and the (relative) divorce decree
will ordinarily be sufficient punishment for her. Moreover, her moral dereliction will not have any
effect upon the baby who is as yet unable to understand the situation." (Report of the Code
Commission, p. 12)
A similar provision is embodied in Article 8 of the Child and Youth Welfare Code (Presidential Decree No.
603).34Article 17 of the same Code is even more explicit in providing for the childs custody under various
circumstances, specifically in case the parents are separated. It clearly mandates that "no child under five

years of age shall be separated from his mother, unless the court finds compelling reasons to do so." The
provision is reproduced in its entirety as follows:
"Art. 17. Joint Parental Authority. The father and the mother shall exercise jointly just and
reasonable parental authority and responsibility over their legitimate or adopted children. In case
of disagreement, the fathers decision shall prevail unless there is a judicial order to the contrary.
"In case of the absence or death of either parent, the present or surviving parent shall continue to
exercise parental authority over such children, unless in case of the surviving parents
remarriage, the court for justifiable reasons, appoints another person as guardian.
"In case of separation of his parents, no child under five years of age shall be separated from his
mother, unless the court finds compelling reasons to do so." (Italics supplied)
The above mandates reverberate in Articles 211, 212 and 213 of the Family Code. It is unmistakable from
the language of these provisions that Article 21135 was derived from the first sentence of the aforequoted
Article 17; Article 212,36 from the second sentence; and Article 213,37 save for a few additions, from the
third sentence. It should be noted that the Family Code has reverted to the Civil Code provision
mandating that a child below sevenyears should not be separated from the mother.38
Mandatory Character of Article 213 of the Family Code
In Lacson v. San Jose-Lacson,39 the Court held that the use of "shall" in Article 363 of the Civil Code and
the observations made by the Code Commission underscore the mandatory character of the
word.40 Holding in that case that it was a mistake to deprive the mother of custody of her two children,
both then below the age of seven, the Court stressed:
"[Article 363] prohibits in no uncertain terms the separation of a mother and her child below seven
years, unless such a separation is grounded upon compelling reasons as determined by a
court."41
In like manner, the word "shall" in Article 213 of the Family Code and Section 6 42 of Rule 99 of the Rules
of Court has been held to connote a mandatory character.43 Article 213 and Rule 99 similarly contemplate
a situation in which the parents of the minor are married to each other, but are separated by virtue of
either a decree of legal separation or a de facto separation. 44 In the present case, the parents are living
separately as a matter of fact.
The Best Interest of the Child a Primary Consideration
The Convention on the Rights of the Child provides that "[i]n all actions concerning children, whether
undertaken by public or private social welfare institutions, courts of law, administrative authorities or
legislative bodies, thebest interests of the child shall be a primary consideration."45
The principle of "best interest of the child" pervades Philippine cases involving adoption, guardianship,
support, personal status, minors in conflict with the law, and child custody. In these cases, it has long
been recognized that in choosing the parent to whom custody is given, the welfare of the minors should
always be the paramount consideration.46 Courts are mandated to take into account all relevant
circumstances that would have a bearing on the childrens well-being and development. Aside from the
material resources and the moral and social situations of each parent, other factors may also be
considered to ascertain which one has the capability to attend to the physical, educational, social and

moral welfare of the children.47 Among these factors are the previous care and devotion shown by each of
the parents; their religious background, moral uprightness, home environment and time availability; as
well as the childrens emotional and educational needs
Tender-Age Presumption
As pointed out earlier, there is express statutory recognition that, as a general rule, a mother is to be
preferred in awarding custody of children under the age of seven. The caveat in Article 213 of the Family
Code cannot be ignored, except when the court finds cause to order otherwise.48
The so-called "tender-age presumption" under Article 213 of the Family Code may be overcome only
bycompelling evidence of the mothers unfitness. The mother has been declared unsuitable to have
custody of her children in one or more of the following instances: neglect, abandonment, unemployment,
immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity or affliction with a
communicable disease.49
Here, Crisanto cites immorality due to alleged lesbian relations as the compelling reason to deprive
Joycelyn of custody. It has indeed been held that under certain circumstances, the mothers immoral
conduct may constitute a compelling reason to deprive her of custody.50
But sexual preference or moral laxity alone does not prove parental neglect or incompetence. Not even
the fact that a mother is a prostitute or has been unfaithful to her husband would render her unfit to have
custody of her minor child.51 To deprive the wife of custody, the husband must clearly establish that her
moral lapses have had an adverse effect on the welfare of the child or have distracted the offending
spouse from exercising proper parental care.52
To this effect did the Court rule in Unson III v. Navarro,53 wherein the mother was openly living with her
brother-in-law, the childs uncle. Under that circumstance, the Court deemed it in the nine-year-old childs
best interest to free her "from the obviously unwholesome, not to say immoral influence, that the situation
in which the mother ha[d] placed herself might create in [the childs] moral and social outlook." 54
In Espiritu v. CA,55 the Court took into account psychological and case study reports on the child, whose
feelings of insecurity and anxiety had been traced to strong conflicts with the mother. To the psychologist
the child revealed, among other things, that the latter was disturbed upon seeing "her mother hugging and
kissing a bad man who lived in their house and worked for her father." The Court held that the "illicit or
immoral activities of the mother had already caused the child emotional disturbances, personality
conflicts, and exposure to conflicting moral values x x x."
Based on the above jurisprudence, it is therefore not enough for Crisanto to show merely that Joycelyn
was a lesbian. He must also demonstrate that she carried on her purported relationship with a person of
the same sex in the presence of their son or under circumstances not conducive to the childs proper
moral development. Such a fact has not been shown here. There is no evidence that the son was
exposed to the mothers alleged sexual proclivities or that his proper moral and psychological
development suffered as a result.
Moreover, it is worthy to note that the trial court judge, Helen Bautista-Ricafort, ruled in her May 17, 2002
Order that she had found the "reason stated by [Crisanto] not to be compelling" 56 as to suffice as a ground
for separating the child from his mother. The judge made this conclusion after personally observing the
two of them, both in the courtroom and in her chambers on April 16, 2002, and after a chance to talk to
the boy and to observe him firsthand. This assessment, based on her unique opportunity to witness the

childs behavior in the presence of each parent, should carry more weight than a mere reliance on the
records. All told, no compelling reason has been adduced to wrench the child from the mothers custody.
No Grant of Habeas Corpus and Preliminary Injunction
As we have ruled that Joycelyn has the right to keep her minor son in her custody, the writ of habeas
corpus and the preliminary mandatory injunction prayed for by Crisanto have no leg to stand on. A writ of
habeas corpus may be issued only when the "rightful custody of any person is withheld from the person
entitled thereto,"57 a situation that does not apply here.
On the other hand, the ancillary remedy of preliminary mandatory injunction cannot be granted, because
Crisantos right to custody has not been proven to be "clear and unmistakable." 58 Unlike an ordinary
preliminary injunction, the writ of preliminary mandatory injunction is more cautiously regarded, since the
latter requires the performance of a particular act that tends to go beyond the maintenance of the status
quo.59 Besides, such an injunction would serve no purpose, now that the case has been decided on its
merits.60
WHEREFORE, the Petition in GR No. 154994 is GRANTED. The assailed Decision of the Court of
Appeals is hereby REVERSED and the May 17, 2002 Regional Trial Court Order REINSTATED. The
Petition in GR No. 156254 is DISMISSED. Costs against Petitioner Crisanto Rafaelito Gualberto V.
SO ORDERED.

August 29, 2006

MARIE ANTONETTE ABIGAIL C. SALIENTES, ORLANDO B. SALIENTES, and ROSARIO C.
SALIENTES,Petitioners,
vs.
LORAN S.D. ABANILLA, HONORABLE JUDGE PEDRO SABUNDAYO, JR., REGIONAL TRIAL
COURT, BRANCH 203, MUNTINLUPA CITY, Respondents
DECISION
QUISUMBING, J.:
The instant petition assails the Decision 1dated November 10, 2003 of the Court of Appeals in CA-G.R.
SP No. 75680, which dismissed the petition for certiorari against the orders of the Regional Trial Court in
Special Proceedings No. 03-004. Likewise assailed is the Court of Appeals Resolution 2dated March 19,
2004 denying reconsideration.
The facts of the case are as follows:
Private respondent Loran S.D. Abanilla and petitioner Marie Antonette Abigail C. Salientes are the parents
of the minor Lorenzo Emmanuel S. Abanilla. They lived with Marie Antonettes parents, petitioners
Orlando B. Salientes and Rosario C. Salientes. Due to in-laws problems, private respondent suggested to

his wife that they transfer to their own house, but Marie Antonette refused. So, he alone left the house of
the Salientes. Thereafter, he was prevented from seeing his son.
Later, Loran S.D. Abanilla in his personal capacity and as the representative of his son, filed a Petition
for Habeas Corpus and Custody, 3 docketed as Special Proceedings No. 03-004 before the Regional Trial
Court of Muntinlupa City. On January 23, 2003, the trial court issued the following order:
Upon verified Petition for a Writ of Habeas Corpus by Petitioners, the Respondents Marie
Antonette Abigail C. Salientes, Orlando B. Salientes and Rosario C. Salientes are hereby directed
to produce and bring before this Court the body of minor Lorenzo Emmanuel Salientes Abanilla
on January 31, 2003 at 1:00 oclock in the afternoon and to show cause why the said child should
not be discharged from restraint.
Let this Writ be served by the Sheriff or any authorized representative of this Court, who is
directed to immediately make a return.
SO ORDERED. 4
Petitioners moved for reconsideration which the court denied.
Consequently, petitioners filed a petition for certiorari with the Court of Appeals, but the same was
dismissed on November 10, 2003. The appellate court affirmed the February 24, 2003 Order of the trial
court holding that its January 23, 2003 Order did not award the custody of the 2-year-old child to any one
but was simply the standard order issued for the production of restrained persons. The appellate court
held that the trial court was still about to conduct a full inquiry, in a summary proceeding, on the cause of
the minors detention and the matter of his custody. The Court of Appeals ruled thus:
WHEREFORE, the petition is hereby DISMISSED for lack of merit.
SO ORDERED. 5
Petitioners moved for reconsideration, which was denied on March 19, 2004.
Hence, petitioners interposed this appeal by certiorari anchored on the following grounds:
1. The Court of Appeals erred in not pronouncing the respondent judge gravely abused his discretion,
amounting to lack or in excess of jurisdiction in issuing an order for the petitioner-mother to first show
cause why her own three-year old child in her custody should not be discharged from a so-called
"restraint" despite no evidence at all of restraint and no evidence of compelling reasons of maternal
unfitness to deprive the petitioner-mother of her minor son of tender years. The assailed orders,
resolutions and decisions of the lower court and the Court of Appeals are clearly void;
2. The Court of Appeals erred in not pronouncing that the respondent judge gravely abused his discretion
in issuing a writ of habeas corpus which clearly is not warranted considering that there is no unlawful
restraint by the mother and considering further that the law presumes the fitness of the mother, thereby
negating any notion of such mother illegally restraining or confining her very own son of tender years. The
petition is not even sufficient in substance to warrant the writ. The assailed orders are clearly void.
3. Contrary to the Court of Appeals decision, the "Sombong vs. CA" case supports rather than negates
the position of the petitioners.

4. Contrary to the Court of Appeals decision, summary proceeding does violence to the tender-years-rule
5. The Court of Appeals failed to consider that the private respondent failed to present prima facie proof of
any compelling reason of the unfitness of the petitioner-mother;
6. The Court of Appeals failed to see that the New Rules on Custody SUFFICES AS REMEDY. 6
Plainly put, the issue is: Did the Court of Appeals err when it dismissed the petition for certiorari against
the trial courts orders dated January 23, 2003 and February 24, 2003?
Petitioners contend that the order is contrary to Article 213 7 of the Family Code, which provides that no
child under seven years of age shall be separated from the mother unless the court finds compelling
reasons to order otherwise. They maintain that herein respondent Loran had the burden of showing any
compelling reason but failed to present even a prima facie proof thereof.
Petitioners posit that even assuming that there were compelling reasons, the proper remedy for private
respondent was simply an action for custody, but not habeas corpus. Petitioners assert that habeas
corpus is unavailable against the mother who, under the law, has the right of custody of the minor. They
insist there was no illegal or involuntary restraint of the minor by his own mother. There was no need for
the mother to show cause and explain the custody of her very own child.
Private respondent counters that petitioners argument based on Article 213 of the Family Code applies
only to the second part of his petition regarding the custody of his son. It does not address the first part,
which pertains to his right as the father to see his son. He asserts that the writ of habeas corpus is
available against any person who restrains the minors right to see his father and vice versa. He avers
that the instant petition is merely filed for delay, for had petitioners really intended to bring the child before
the court in accordance with the new rules on custody of minors, they would have done so on the dates
specified in the January 23, 2003 and the February 24, 2003 orders of the trial court.
Private respondent maintains that, under the law, he and petitioner Marie Antonette have shared custody
and parental authority over their son. He alleges that at times when petitioner Marie Antonette is out of the
country as required of her job as an international flight stewardess, he, the father, should have custody of
their son and not the maternal grandparents.
As correctly pointed out by the Court of Appeals, the assailed January 23, 2003 Order of the trial court did
not grant custody of the minor to any of the parties but merely directed petitioners to produce the minor in
court and explain why they are restraining his liberty. The assailed order was an interlocutory order
precedent to the trial courts full inquiry into the issue of custody, which was still pending before it.
Under Rule 41, Section 1 8 of the Rules of Court, an interlocutory order is not appealable but the
aggrieved party may file an appropriate special action under Rule 65. The aggrieved party must show that
the court gravely abused its discretion in issuing the interlocutory order. In the present case, it is
incumbent upon petitioners to show that the trial court gravely abused its discretion in issuing the order.
Habeas corpus may be resorted to in cases where rightful custody is withheld from a person entitled
thereto. 9Under Article 211 10 of the Family Code, respondent Loran and petitioner Marie Antonette have
joint parental authority over their son and consequently joint custody. Further, although the couple is
separated de facto, the issue of custody has yet to be adjudicated by the court. In the absence of a
judicial grant of custody to one parent, both parents are still entitled to the custody of their child. In the
present case, private respondents cause of action is the deprivation of his right to see his child as alleged
in his petition. 11 Hence, the remedy of habeas corpus is available to him.

In a petition for habeas corpus, the childs welfare is the supreme consideration. The Child and Youth
Welfare Code 12 unequivocally provides that in all questions regarding the care and custody, among
others, of the child, his welfare shall be the paramount consideration. 13
Again, it bears stressing that the order did not grant custody of the minor to any of the parties but merely
directed petitioners to produce the minor in court and explain why private respondent is prevented from
seeing his child. This is in line with the directive in Section 9 14 of A.M. 03-04-04-SC 15 that within fifteen
days after the filing of the answer or the expiration of the period to file answer, the court shall issue an
order requiring the respondent (herein petitioners) to present the minor before the court. This was exactly
what the court did.
Moreover, Article 213 of the Family Code deals with the judicial adjudication of custody and serves as a
guideline for the proper award of custody by the court. Petitioners can raise it as a counter argument for
private respondents petition for custody. But it is not a basis for preventing the father to see his own child.
Nothing in the said provision disallows a father from seeing or visiting his child under seven years of age.
In sum, the trial court did not err in issuing the orders dated January 23, 2003 and February 24, 2003.
Hence, the Court of Appeals properly dismissed the petition for certiorari against the said orders of the
trial court.
WHEREFORE, the petition is DENIED. The Decisiondated November 10, 2003 and the Resolutiondated
March 19, 2004 of the Court of Appeals in CA-G.R. SP No. 75680 are AFFIRMED. Costs against
petitioners.
SO ORDERED.
July 11, 2007
AGNES GAMBOA-HIRSCH Petitioner,
vs.
HON. COURT OF APPEALS and FRANKLIN HARVEY HIRSCH, Respondents.
RESOLUTION
VELASCO, JR., J.:
This is a petition for certiorari1 under Rule 65 which seeks to set aside the June 8, 2006 Decision2 of the
Court of Appeals (CA) in CA-G.R. SP No. 94329, which granted private respondent Franklin Harvey
Hirsch (Franklin) joint custody with petitioner Agnes Gamboa-Hirsch (Agnes) of their minor daughter
Simone Noelle Hirsch (Simone); and the August 3, 2006 CA Resolution 3 denying petitioners Motion for
Reconsideration for lack of merit. Petitioner also prays for the issuance of a temporary restraining
order/injunction preventing the execution and implementation of the assailed June 8, 2006 CA Decision.
Franklin and Agnes were married on December 23, 2000 in the City of Bacolod, and established their
conjugal dwelling in Diniwid, Boracay Island, Malay, Aklan. On December 21, 2002, a child was born to
them and was named Simone. In 2005, the couple started to have marital problems as Agnes wanted to
stay in Makati City, while Franklin insisted that they stay in Boracay Island. On March 23, 2006, Agnes
came to their conjugal home in Boracay, and asked for money and for Franklins permission for her to
bring their daughter to Makati City for a brief vacation. Franklin readily agreed, but soon thereafter
discovered that neither Agnes nor their daughter Simone would be coming back to Boracay.

Franklin then filed a petition for habeas corpus before the CA for Agnes to produce Simone in court. On
May 19, 2006, the CA issued a Resolution which ordered that a writ of habeas corpus be issued ordering
that Simone be brought before said court on May 26, 2006. After a series of hearings and presentation of
evidence, the CA, on June 8, 2006, promulgated the assailed Decision granting Franklin joint custody with
Agnes of their minor child. Agnes filed a Motion for Reconsideration of this Decision, which was denied in
the CAs August 3, 2006 Resolution for lack of merit.
Petitioner now comes before this Court praying that we set aside the June 8, 2006 Decision and August 3,
2006 Resolution of the CA, and that we issue a temporary restraining order/injunction on the execution
and implementation of the assailed rulings of the CA based on the following grounds:
(A)
The Court of Appeals seriously erred and acted with grave abuse of discretion amounting to lack
or excess of jurisdiction when it ruled upon, granted, and decided the matter of custody x x x
during the May 26, 2006 hearing conducted on the petition for writ of habeas corpus in relation to
and with custody of a minor under A.M. No. 03-03-04-SC, C.A.-GR SP. No. 94329, as no
reception of evidence to support said decision was had thereon, and the honorable court merely
based its decision on mere conjectures and presumptions.
(B)
The Court of Appeals seriously erred and acted with grave abuse of discretion amounting to lack
or excess of jurisdiction when it denied the motion for reconsideration filed by [petitioner Agnes]
and only made addendums thereon appertaining to the custody aspect in its Decision that the
same is deemed necessary for the protection of the interest of the child and a mere temporary
arrangement while the case involving the herein parties are pending before the Regional Trial
Court x x x quite contrary to its pronouncements during the May 26, 2006 hearing when the
matter of custody was insisted upon by [respondent Franklin].
(C)
The Court of Appeals seriously erred and acted with grave abuse of discretion amounting to lack
or excess of jurisdiction when it granted joint custody in utter disregard of the provisions of the
Family Code, as to minors seven (7) years of age and below, in relation to the jurisprudence and
pronouncements laid down by the Honorable Supreme Court on the matter of the said provision. 4
Acting on the petition, this Court issued its October 2, 2006 Resolution denying petitioners prayer for the
issuance of a temporary restraining order. Petitioner then filed a Motion for Reconsideration of this
Resolution, and on April 11, 2007, this Court granted petitioners Motion for Reconsideration, issued a
temporary restraining order, and awarded the sole custody of the minor, Simone, to petitioner.
This petition has merit.
The CA committed grave abuse of discretion when it granted joint custody of the minor child to both
parents.
The Convention on the Rights of the Child provides that "in all actions concerning children, whether
undertaken by public or private social welfare institutions, courts of law, administrative authorities or
legislative bodies, the best interests of the child shall be a primary consideration (emphasis

supplied)."5 The Child and Youth Welfare Code, in the same way, unequivocally provides that in all
questions regarding the care and custody, among others, of the child, his/her welfare shall be the
paramount consideration.6
The so-called "tender-age presumption" under Article 213 of the Family Code may be overcome only by
compelling evidence of the mothers unfitness. The mother is declared unsuitable to have custody of her
children in one or more of the following instances: neglect, abandonment, unemployment, immorality,
habitual drunkenness, drug addiction, maltreatment of the child, insanity, or affliction with a communicable
disease.7 Here, the mother was not shown to be unsuitable or grossly incapable of caring for her minor
child. All told, no compelling reason has been adduced to wrench the child from the mothers
custody.1avvphi1
WHEREFORE, premises considered, the petition is GIVEN DUE COURSE. The June 8, 2006 Decision
and August 3, 2006 Resolution of the CA are hereby SET ASIDE. Sole custody over Simone Noelle
Hirsch is herebyAWARDED to the mother, petitioner Agnes Gamboa-Hirsch.
SO ORDERED.

February 5, 2010
HERALD BLACK DACASIN, Petitioner,
vs.
SHARON DEL MUNDO DACASIN, Respondent.
DECISION
CARPIO, J.:
The Case
For review1 is a dismissal2 of a suit to enforce a post-foreign divorce child custody agreement for lack of
jurisdiction.
The Facts
Petitioner Herald Dacasin (petitioner), American, and respondent Sharon Del Mundo Dacasin
(respondent), Filipino, were married in Manila in April 1994. They have one daughter, Stephanie, born on
21 September 1995. In June 1999, respondent sought and obtained from the Circuit Court, 19th Judicial
Circuit, Lake County, Illinois (Illinois court) a divorce decree against petitioner.3 In its ruling, the Illinois
court dissolved the marriage of petitioner and respondent, awarded to respondent sole custody of
Stephanie and retained jurisdiction over the case for enforcement purposes.
On 28 January 2002, petitioner and respondent executed in Manila a contract (Agreement 4 ) for the joint
custody of Stephanie. The parties chose Philippine courts as exclusive forum to adjudicate disputes
arising from the Agreement. Respondent undertook to obtain from the Illinois court an order
"relinquishing" jurisdiction to Philippine courts.

In 2004, petitioner sued respondent in the Regional Trial Court of Makati City, Branch 60 (trial court) to
enforce the Agreement. Petitioner alleged that in violation of the Agreement, respondent exercised sole
custody over Stephanie.
Respondent sought the dismissal of the complaint for, among others, lack of jurisdiction because of the
Illinois courts retention of jurisdiction to enforce the divorce decree.
The Ruling of the Trial Court
In its Order dated 1 March 2005, the trial court sustained respondents motion and dismissed the case for
lack of jurisdiction. The trial court held that: (1) it is precluded from taking cognizance over the suit
considering the Illinois courts retention of jurisdiction to enforce its divorce decree, including its order
awarding sole custody of Stephanie to respondent; (2) the divorce decree is binding on petitioner
following the "nationality rule" prevailing in this jurisdiction; 5 and (3) the Agreement is void for
contravening Article 2035, paragraph 5 of the Civil Code 6prohibiting compromise agreements on
jurisdiction.7
Petitioner sought reconsideration, raising the new argument that the divorce decree obtained by
respondent is void. Thus, the divorce decree is no bar to the trial courts exercise of jurisdiction over the
case.
In its Order dated 23 June 2005, the trial court denied reconsideration, holding that unlike in the case of
respondent, the divorce decree is binding on petitioner under the laws of his nationality.
Hence, this petition.
Petitioner submits the following alternative theories for the validity of the Agreement to justify its
enforcement by the trial court: (1) the Agreement novated the valid divorce decree, modifying the terms of
child custody from sole (maternal) to joint;8 or (2) the Agreement is independent of the divorce decree
obtained by respondent.
The Issue
The question is whether the trial court has jurisdiction to take cognizance of petitioners suit and enforce
the Agreement on the joint custody of the parties child.
The Ruling of the Court
The trial court has jurisdiction to entertain petitioners suit but not to enforce the Agreement which is void.
However, factual and equity considerations militate against the dismissal of petitioners suit and call for
the remand of the case to settle the question of Stephanies custody.
Regional Trial Courts Vested With Jurisdiction
to Enforce Contracts
Subject matter jurisdiction is conferred by law. At the time petitioner filed his suit in the trial court, statutory
law vests on Regional Trial Courts exclusive original jurisdiction over civil actions incapable of pecuniary
estimation.9An action for specific performance, such as petitioners suit to enforce the Agreement on joint
child custody, belongs to this species of actions.10 Thus, jurisdiction-wise, petitioner went to the right court.

Indeed, the trial courts refusal to entertain petitioners suit was grounded not on its lack of power to do so
but on its thinking that the Illinois courts divorce decree stripped it of jurisdiction. This conclusion is
unfounded. What the Illinois court retained was "jurisdiction x x x for the purpose of enforcing all and
sundry the various provisions of [its] Judgment for Dissolution."11 Petitioners suit seeks the enforcement
not of the "various provisions" of the divorce decree but of the post-divorce Agreement on joint child
custody. Thus, the action lies beyond the zone of the Illinois courts so-called "retained jurisdiction."
Petitioners Suit Lacks Cause of Action
The foregoing notwithstanding, the trial court cannot enforce the Agreement which is contrary to law.
In this jurisdiction, parties to a contract are free to stipulate the terms of agreement subject to the
minimum ban on stipulations contrary to law, morals, good customs, public order, or public
policy.12 Otherwise, the contract is denied legal existence, deemed "inexistent and void from the
beginning."13 For lack of relevant stipulation in the Agreement, these and other ancillary Philippine
substantive law serve as default parameters to test the validity of the Agreements joint child custody
stipulations.14
At the time the parties executed the Agreement on 28 January 2002, two facts are undisputed: (1)
Stephanie was under seven years old (having been born on 21 September 1995); and (2) petitioner and
respondent were no longer married under the laws of the United States because of the divorce decree.
The relevant Philippine law on child custody for spouses separated in fact or in law15 (under the second
paragraph of Article 213 of the Family Code) is also undisputed: "no child under seven years of age shall
be separated from the mother x x x."16 (This statutory awarding of sole parental custody17 to the mother is
mandatory,18 grounded on sound policy consideration,19 subject only to a narrow exception not alleged to
obtain here.20 ) Clearly then, the Agreements object to establish a post-divorce joint custody regime
between respondent and petitioner over their child under seven years old contravenes Philippine law.
The Agreement is not only void ab initio for being contrary to law, it has also been repudiated by the
mother when she refused to allow joint custody by the father. The Agreement would be valid if the
spouses have not divorced or separated because the law provides for joint parental authority when
spouses live together.21 However, upon separation of the spouses, the mother takes sole custody under
the law if the child is below seven years old and any agreement to the contrary is void. Thus, the law
suspends the joint custody regime for (1) children under seven of (2) separated or divorced spouses.
Simply put, for a child within this age bracket (and for commonsensical reasons), the law decides for the
separated or divorced parents how best to take care of the child and that is to give custody to the
separated mother. Indeed, the separated parents cannot contract away the provision in the Family Code
on the maternal custody of children below seven years anymore than they can privately agree that a
mother who is unemployed, immoral, habitually drunk, drug addict, insane or afflicted with a
communicable disease will have sole custody of a child under seven as these are reasons deemed
compelling to preclude the application of the exclusive maternal custody regime under the second
paragraph of Article 213.22
It will not do to argue that the second paragraph of Article 213 of the Family Code applies only to judicial
custodial agreements based on its text that "No child under seven years of age shall be separated from
the mother, unless the court finds compelling reasons to order otherwise." To limit this provisions
enforceability to court sanctioned agreements while placing private agreements beyond its reach is to
sanction a double standard in custody regulation of children under seven years old of separated parents.
This effectively empowers separated parents, by the simple expedient of avoiding the courts, to subvert a
legislative policy vesting to the separated mother sole custody of her children under seven years of age
"to avoid a tragedy where a mother has seen her baby torn away from her." 23 This ignores the legislative

basis that "[n]o man can sound the deep sorrows of a mother who is deprived of her child of tender
age."24
It could very well be that Article 213s bias favoring one separated parent (mother) over the other (father)
encourages paternal neglect, presumes incapacity for joint parental custody, robs the parents of custodial
options, or hijacks decision-making between the separated parents. 25 However, these are objections
which question the laws wisdom not its validity or uniform enforceability. The forum to air and remedy
these grievances is the legislature, not this Court. At any rate, the rules seeming harshness or
undesirability is tempered by ancillary agreements the separated parents may wish to enter such as
granting the father visitation and other privileges. These arrangements are not inconsistent with the
regime of sole maternal custody under the second paragraph of Article 213 which merely grants to the
mother final authority on the care and custody of the minor under seven years of age, in case of
disagreements.1avvphi1
Further, the imposed custodial regime under the second paragraph of Article 213 is limited in duration,
lasting only until the childs seventh year. From the eighth year until the childs emancipation, the law
gives the separated parents freedom, subject to the usual contractual limitations, to agree on custody
regimes they see fit to adopt. Lastly, even supposing that petitioner and respondent are not barred from
entering into the Agreement for the joint custody of Stephanie, respondent repudiated the Agreement by
asserting sole custody over Stephanie. Respondents act effectively brought the parties back to ambit of
the default custodial regime in the second paragraph of Article 213 of the Family Code vesting on
respondent sole custody of Stephanie.
Nor can petitioner rely on the divorce decrees alleged invalidity - not because the Illinois court lacked
jurisdiction or that the divorce decree violated Illinois law, but because the divorce was obtained by his
Filipino spouse26 - to support the Agreements enforceability. The argument that foreigners in this
jurisdiction are not bound by foreign divorce decrees is hardly novel. Van Dorn v. Romillo 27 settled the
matter by holding that an alien spouse of a Filipino is bound by a divorce decree obtained
abroad.28 There, we dismissed the alien divorcees Philippine suit for accounting of alleged post-divorce
conjugal property and rejected his submission that the foreign divorce (obtained by the Filipino spouse) is
not valid in this jurisdiction in this wise:
There can be no question as to the validity of that Nevada divorce in any of the States of the United
States. The decree is binding on private respondent as an American citizen. For instance, private
respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending in this
case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local law
and public policy.
It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine
nationals are covered by the policy against absolute divorces the same being considered contrary to our
concept of public policy and morality. However, aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid according to their national law. In this case, the
divorce in Nevada released private respondent from the marriage from the standards of American law,
under which divorce dissolves the marriage.
xxxx
Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would
have no standing to sue in the case below as petitioners husband entitled to exercise control over
conjugal assets. As he is bound by the Decision of his own countrys Court, which validly exercised
jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own

representation before said Court from asserting his right over the alleged conjugal property. (Emphasis
supplied)
We reiterated Van Dorn in Pilapil v. Ibay-Somera29 to dismiss criminal complaints for adultery filed by the
alien divorcee (who obtained the foreign divorce decree) against his former Filipino spouse because he
no longer qualified as "offended spouse" entitled to file the complaints under Philippine procedural rules.
Thus, it should be clear by now that a foreign divorce decree carries as much validity against the alien
divorcee in this jurisdiction as it does in the jurisdiction of the aliens nationality, irrespective of who
obtained the divorce.
The Facts of the Case and Nature of Proceeding
Justify Remand
Instead of ordering the dismissal of petitioners suit, the logical end to its lack of cause of action, we
remand the case for the trial court to settle the question of Stephanies custody. Stephanie is now nearly
15 years old, thus removing the case outside of the ambit of the mandatory maternal custody regime
under Article 213 and bringing it within coverage of the default standard on child custody proceedings
the best interest of the child.30 As the question of custody is already before the trial court and the childs
parents, by executing the Agreement, initially showed inclination to share custody, it is in the interest of
swift and efficient rendition of justice to allow the parties to take advantage of the courts jurisdiction,
submit evidence on the custodial arrangement best serving Stephanies interest, and let the trial court
render judgment. This disposition is consistent with the settled doctrine that in child custody proceedings,
equity may be invoked to serve the childs best interest. 31
WHEREFORE, we REVERSE the Orders dated 1 March 2005 and 23 June 2005 of the Regional Trial
Court of Makati City, Branch 60. The case is REMANDED for further proceedings consistent with this
ruling.
SO ORDERED.

GUARDIAN/ADMINISTRATOR OVER THE PROPERTY OF THE UNEMANCIPATED CHILD,

REQUISITES

October 10, 2012

NAPOLEON D. NERI, ALICIA D. NERI-MONDEJAR, VISMINDA D. NERI-CHAMBERS, ROSA D. NERIMILLAN, DOUGLAS D. NERI, EUTROPIA D. ILLUT-COCKINOS AND VICTORIA D. ILLUTPIALA, Petitioners,
vs.
HEIRS OF HADJI YUSOP UY AND JULPHA* IBRAHIM UY, Respondents.

DECISION
PERLAS-BERNABE, J.:
In this Petition for Review on Certiorari1 under Rule 45 of the Rules of Court, petitioners Napoleon D. Neri
(Napoleon), Alicia D. Neri-Mondejar (Alicia), Visminda D. Neri-Chambers (Visminda), Rosa D. Neri-Millan
(Rosa), Douglas D. Neri (Douglas), Eutropia D. Illut-Cockinos (Eutropia), and Victoria D. Illut-Piala
(Victoria) seek to reverse and set aside the April 27, 2010 Decision 2 and October 18, 2010 Resolution3 of
the Court of Appeals (CA) in CA-G.R. CV No. 01031-MIN which annulled the October 25, 2004
Decision4 of the Regional Trial Court (RTC) of Panabo City, Davao del Norte and instead, entered a new
one dismissing petitioners complaint for annulment of sale, damages and attorneys feesagainst herein
respondents heirs of spouses Hadji Yusop Uy and Julpha Ibrahim Uy (heirs of Uy).
The Facts
During her lifetime, Anunciacion Neri (Anunciacion) had seven children, two (2) from her first marriage
with Gonzalo Illut (Gonzalo), namely: Eutropia and Victoria, and five (5) from her second marriage with
Enrique Neri (Enrique), namely: Napoleon, Alicia, Visminda, Douglas and Rosa. Throughout the marriage
of spouses Enrique and Anunciacion, they acquired several homestead properties with a total area of
296,555 square meters located in Samal, Davao del Norte, embraced by Original Certificate of Title
(OCT) Nos. (P-7998) P-21285, (P-14608) P-51536 and P-20551 (P-8348)7issued on February 15, 1957,
August 27, 1962 and July 7, 1967, respectively.
On September 21, 1977, Anunciacion died intestate. Her husband, Enrique, in his personal capacity and
as natural guardian of his minor children Rosa and Douglas, together with the first children Napoleon,
Alicia, and Vismindaexecuted an Extra-Judicial Settlement of the Estate with Absolute Deed of Sale8 on
July 7, 1979, adjudicating among themselves the said homestead properties, and thereafter, conveying
themto the late spouses Hadji Yusop Uy and Julpha Ibrahim Uy (spouses Uy)for a consideration
of P 80,000.00.
On June 11, 1996, the children of Enrique filed a complaint for annulment of saleof the said homestead
properties against spouses Uy (later substituted by their heirs)before the RTC, docketed as Civil Case
No.96-28, assailing the validity of the sale for having been sold within the prohibited period. Thecomplaint
was later amended to include Eutropia and Victoriaas additional plaintiffs for having been excluded and
deprived of their legitimes as childrenof Anunciacion from her first marriage.
In their amended answer with counterclaim, the heirs of Uy countered that the sale took place beyond the
5-year prohibitory period from the issuance of the homestead patents. They also denied knowledge of
Eutropia and Victorias exclusionfrom the extrajudicial settlement and sale of the subject properties, and
interposed further the defenses of prescription and laches.
The RTC Ruling
On October 25, 2004, the RTC rendered a decision ordering, among others, the annulment of the ExtraJudicial Settlement of the Estate with Absolute Deed of Sale. It ruled that while the sale occurred beyond
the 5-year prohibitory period, the sale is still void because Eutropia and Victoria were deprived of their
hereditary rights and that Enrique had no judicial authority to sell the shares of his minor children, Rosa
and Douglas.
Consequently, it rejected the defenses of laches and prescription raised by spouses Uy, who claimed
possession of the subject properties for 17 years, holding that co-ownership rights are imprescriptible.
The CA Ruling

On appeal, the CAreversed and set aside the ruling of the RTC in its April 27, 2010 Decision and
dismissed the complaint of the petitioners. It held that, while Eutropia and Victoria had no knowledge of
the extrajudicial settlement and sale of the subject properties and as such, were not bound by it, the CA
found it unconscionable to permit the annulment of the sale considering spouses Uys possession thereof
for 17 years, and thatEutropia and Victoriabelatedlyfiled their actionin 1997, ormore than two years
fromknowledge of their exclusion as heirs in 1994 when their stepfather died. It, however, did not preclude
the excluded heirs from recovering their legitimes from their co-heirs.
Similarly, the CA declared the extrajudicial settlement and the subsequent saleas valid and binding with
respect to Enrique and hischildren, holding that as co-owners, they have the right to dispose of their
respective shares as they consider necessary or fit.While recognizing Rosa and Douglas to be minors at
that time, they were deemed to have ratified the sale whenthey failed to question it upon reaching the age
of majority.Italso found laches to have set in because of their inaction for a long period of time.
The Issues
In this petition, petitioners imputeto the CA the following errors:
I. When it upheld the validity of the "extra judicial settlement of the estate with absolute deed of sale" as
far as the shares of Eutropia and Victoria were concerned, thereby depriving them of their inheritance;
II. When it did not nullify or annul the "extra judicial settlement of the estate with absolute deed of sale"
with respect to the shares of Rosa and Douglas, thereby depriving them of their inheritance; and
III. When it found that laches or prescription has set in.
The Ruling of the Court
The petitionis meritorious.
It bears to stress that all the petitioners herein are indisputably legitimate children of Anunciacion from her
first and second marriages with Gonzalo and Enrique, respectively, and consequently, are entitled to
inherit from her in equal shares, pursuant to Articles 979 and 980 of the Civil Code which read:
ART. 979. Legitimate children and their descendants succeed the parents and other ascendants, without
distinction as to sex or age, and even if they should come from different marriages.
xxx
ART. 980. The children of the deceased shall always inherit from him in their own right, dividing the
inheritance in equal shares.
As such, upon the death of Anunciacion on September 21, 1977, her children and Enrique acquired their
respective inheritances,9 entitling them to their pro indiviso shares in her whole estate, as follows:
Enrique

9/16 (1/2 of the conjugal assets is 8/16 + 1/16)

Eutropia

1/16

Victoria

1/16

Napoleon

1/16

Alicia

1/16

Visminda

1/16

Rosa

1/16

Douglas

1/16

Hence, in the execution of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale in favor
of spouses Uy, all the heirs of Anunciacionshould have participated. Considering that Eutropia and
Victoria were admittedly excluded and that then minors Rosa and Douglas were not properly represented
therein, the settlement was not valid and binding uponthem and consequently, a total nullity.
Section 1, Rule 74 of the Rules of Court provides:
SECTION 1. Extrajudicial settlement by agreement between heirs. x x x
The fact of the extrajudicial settlement or administration shall be published in a newspaper of general
circulation in the manner provided in the next succeeding section; but no extrajudicial settlement shall be
binding upon any person who has not participated therein or had no notice thereof. (Underscoring added)
The effect of excluding the heirs in the settlement of estate was further elucidated in Segura v.
Segura,10 thus:
It is clear that Section 1 of Rule 74 does not apply to the partition in question which was null and
void as far as the plaintiffs were concerned. The rule covers only valid partitions. The partition in
the present case was invalid because it excluded six of the nine heirs who were entitled to equal
shares in the partitioned property. Under the rule "no extrajudicial settlement shall be binding
upon any person who has not participated therein or had no notice thereof." As the partition was a
total nullity and did not affect the excluded heirs, it was not correct for the trial court to hold that
their right to challenge the partition had prescribed after two years from its execution
However, while the settlement of the estate is null and void, the subsequent sale of the subject
propertiesmade by Enrique and his children, Napoleon, Alicia and Visminda, in favor of the respondents is
valid but only with respect to their proportionate shares therein.It cannot be denied that these heirs have
acquired their respective shares in the properties of Anunciacion from the moment of her death 11and that,
as owners thereof, they can very well sell their undivided share in the estate. 12
With respect to Rosa and Douglas who were minors at the time of the execution of the settlement and
sale, their natural guardian and father, Enrique, represented them in the transaction. However, on the
basis of the laws prevailing at that time, Enrique was merely clothed with powers of administration and
bereft of any authority to dispose of their 2/16 shares in the estate of their mother, Anunciacion.
Articles 320 and 326 of the Civil Code, the laws in force at the time of the execution of the settlement and
sale, provide:
ART. 320. The father, or in his absence the mother, is the legal administrator of the property
pertaining to the child under parental authority. If the property is worth more than two thousand
pesos, the father or mother shall give a bond subject to the approval of the Court of First
Instance.
ART. 326. When the property of the child is worth more than two thousand pesos, the father or
mother shall be considered a guardian of the childs property, subject to the duties and obligations
of guardians under the Rules of Court.

Corollarily, Section 7, Rule 93 of the Rules of Court also provides:

SEC. 7. Parents as Guardians. When the property of the child under parental authority is worth
two thousand pesos or less, the father or the mother, without the necessity of court appointment,
shall be his legal guardian. When the property of the child is worth more than two thousand
pesos, the father or the mother shall be considered guardian of the childs property, with the
duties and obligations of guardians under these Rules, and shall file the petition required by
Section 2 hereof. For good reasons, the court may, however, appoint another suitable persons.
Administration includes all acts for the preservation of the property and the receipt of fruits according to
the natural purpose of the thing. Any act of disposition or alienation, or any reduction in the substance of
the patrimony of child, exceeds the limits of administration.13 Thus, a father or mother, as the natural
guardian of the minor under parental authority, does not have the power to dispose or encumber the
property of the latter. Such power is granted by law only to a judicial guardian of the wards property and
even then only with courts prior approval secured in accordance with the proceedings set forth by the
Rules of Court.14
Consequently, the disputed sale entered into by Enrique in behalf of his minor children without the proper
judicial authority, unless ratified by them upon reaching the age of majority,15 is unenforceable in
accordance with Articles 1317 and 1403(1) of the Civil Code which provide:
ART. 1317. No one may contract in the name of another without being authorized by the latter or
unless he has by law a right to represent him.
A contract entered into in the name of another by one who has no authority or legal
representation, or who has acted beyond his powers, shall be unenforceable, unless it is ratified,
expressly or impliedly, by the person on whose behalf it has been executed, before it is revoked
by the other contracting party.
ART. 1403. The following contracts are unenforceable, unless they are ratified:
(1) Those entered into the name of another person by one who has been given no
authority or legal representation, or who has acted beyond his powers;
xxx
Ratification means that one under no disability voluntarily adopts and gives approval to some
unauthorized act or defective proceeding, which without his authorization would not be binding on him. It
is this voluntary choice, knowingly made, which amounts to a ratification of what was theretofore
unauthorized, and becomes the authorized act of the party so making the ratification.16 Once ratified,
expressly or impliedly such as when the person knowingly received benefits from it, the contract is
cleansed from all its defects from the moment it was constituted, 17 as it has a retroactive effect.
Records, however, show that Rosa had ratified the extrajudicial settlement of the estate with absolute
deed of sale. In Napoleon and Rosas Manifestation18 before the RTC dated July 11, 1997,they stated:
"Concerning the sale of our parcel of land executed by our father, Enrique Neri concurred in and
conformed to by us and our other two sisters and brother (the other plaintiffs), in favor of Hadji Yusop Uy
and his spouse Hadja Julpa Uy on July 7, 1979, we both confirmed that the same was voluntary and
freely made by all of us and therefore the sale was absolutely valid and enforceable as far as we all
plaintiffs in this case are concerned;" (Underscoring supplied)
In their June 30, 1997 Joint-Affidavit,19 Napoleon and Rosa also alleged:

"That we are surprised that our names are included in this case since we do not have any
intention to file a case against Hadji Yusop Uy and Julpha Ibrahim Uy and their family and we
respect and acknowledge the validity of the Extra-Judicial Settlement of the Estate with Absolute
Deed of Sale dated July 7, 1979;" (Underscoring supplied)
Clearly, the foregoing statements constitutedratification of the settlement of the estate and the subsequent
sale, thus, purging all the defects existing at the time of its execution and legitimizing the conveyance of
Rosas 1/16 share in the estate of Anunciacion to spouses Uy. The same, however, is not true with
respect to Douglas for lack of evidence showing ratification.
Considering, thus, that the extrajudicial settlement with sale is invalid and therefore, not binding on
Eutropia, Victoria and Douglas, only the shares ofEnrique, Napoleon, Alicia, Visminda and Rosa in the
homestead properties have effectivelybeen disposed in favor of spouses Uy. "A person can only sell what
he owns, or is authorized to sell and the buyer can as a consequence acquire no more than what the
sellercan legally transfer."20 On this score, Article 493 of the Civil Codeis relevant, which provides:
Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining
thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person
in its enjoyment, except when personal rights are involved. But the effect of the alienation or the
mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to
him in the division upon the termination of the co-ownership.
Consequently, spouses Uy or their substituted heirs became pro indiviso co-owners of the homestead
properties with Eutropia, Victoria and Douglas, who retained title to their respective 1/16 shares. They
were deemed to be holding the 3/16 shares of Eutropia, Victoria and Douglas under an implied
constructive trust for the latters benefit, conformably with Article 1456 of the Civil Code which states:"if
property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a
trustee of an implied trust for the benefit of the person from whom the property comes." As such, it is only
fair, just and equitable that the amount paid for their shares equivalent to P 5,000.0021 each or a total
of P 15,000.00 be returned to spouses Uy with legal interest.
On the issue of prescription, the Court agrees with petitioners that the present action has not prescribed
in so far as it seeks to annul the extrajudicial settlement of the estate. Contrary to the ruling of the CA, the
prescriptive period of 2 years provided in Section 1 Rule 74 of the Rules of Court reckoned from the
execution of the extrajudicial settlement finds no application to petitioners Eutropia, Victoria and Douglas,
who were deprived of their lawful participation in the subject estate. Besides, an "action or defense for the
declaration of the inexistence of a contract does not prescribe" in accordance with Article 1410 of the Civil
Code.
However, the action to recover property held in trust prescribes after 10 years from the time the cause of
action accrues,22 which is from the time of actual notice in case of unregistered deed.23 In this case,
Eutropia, Victoria and Douglas claimed to have knowledge of the extrajudicial settlement with sale after
the death of their father, Enrique, in 1994 which spouses Uy failed to refute. Hence, the complaint filed in
1997 was well within the prescriptive period of 10 years.
WHEREFORE, the instant petition is GRANTED. The April 27, 2010 Decision and October 18, 2010
Resolution of the Court of Appeals are REVERSED and SET ASIDE and a new judgment is entered:
1. Declaring the Extra-Judicial Settlement of the Estate of Anunciacion Neri NULL and VOID;
2. Declaring the Absolute Deed of Sale in favor of the late spouses Hadji Yusop Uy and Julpha
Ibrahim Uy as regards the 13/16 total shares of the late Enrique Neri, Napoleon Neri, Alicia D.
Neri-Mondejar, Visminda D. Neri-Chambers and Rosa D. Neri-Millan VALID;

3. Declaring Eutropia D. Illut-Cockinos, Victoria D. Illut-Piala and Douglas D. Neri as the LAWFUL
OWNERSof the 3/16 portions of the subject homestead properties, covered by Original Certificate
of Title Nos. (P-7998) P-2128, (P-14608) P-5153 and P-20551 (P-8348); and
4. Ordering the estate of the late Enrique Neri, as well as Napoleon Neri, Alicia D. Neri-Mondejar,
Visminda D. Neri-Chambers and Rosa D. Neri-Millan to return to the respondents jointly and
solidarily the amount paid corresponding to the 3/16 shares of Eutropia, Victoria and Douglas in
the total amount of P 15,000.00, with legal interest at 6% per annum computed from the time of
payment until finality of this decision and 12% per annum thereafter until fully paid.
No pronouncement as to costs.
SO ORDERED.

FOSTER CARE ACT OF 2012

July 14, 2008
SCHOOL OF THE HOLY SPIRIT OF QUEZON CITY and/or SR. CRISPINA A. TOLENTINO,
S.Sp.S., Petitioners,
vs.
CORAZON P. TAGUIAM, Respondent.
DECISION
QUISUMBING, J.:
This petition assails the Decision1 dated June 7, 2004 of the Court of Appeals in CA-G.R. SP No. 81480,
which reversed the Resolution2 dated September 20, 2002 of the National Labor Relations Commission
(NLRC) in NLRC NCR CA No. 031627-02. The NLRC had affirmed the Decision 3 dated March 26, 2002 of
the Labor Arbiter dismissing respondents complaint for illegal dismissal. This petition likewise assails the
Resolution4 dated September 30, 2004 of the Court of Appeals denying petitioners motion for
reconsideration.
The antecedent facts are as follows:
Respondent Corazon P. Taguiam was the Class Adviser of Grade 5-Esmeralda of the petitioner, School of
the Holy Spirit of Quezon City. On March 10, 2000, the class president, wrote a letter5 to the grade school
principal requesting permission to hold a year-end celebration at the school grounds. The principal
authorized the activity and allowed the pupils to use the swimming pool. In this connection, respondent
distributed the parents/guardians permit forms to the pupils.

Respondent admitted that Chiara Mae Federicos permit form6 was unsigned. Nevertheless, she
concluded that Chiara Mae was allowed by her mother to join the activity since her mother personally
brought her to the school with her packed lunch and swimsuit.
Before the activity started, respondent warned the pupils who did not know how to swim to avoid the
deeper area. However, while the pupils were swimming, two of them sneaked out. Respondent went after
them to verify where they were going.
Unfortunately, while respondent was away, Chiara Mae drowned. When respondent returned, the
maintenance man was already administering cardiopulmonary resuscitation on Chiara Mae. She was still
alive when respondent rushed her to the General Malvar Hospital where she was pronounced dead on
arrival.
On May 23, 2000, petitioners issued a Notice of Administrative Charge 7 to respondent for alleged gross
negligence and required her to submit her written explanation. Thereafter, petitioners conducted a
clarificatory hearing which respondent attended. Respondent also submitted her Affidavit of Explanation. 8
On July 31, 2000, petitioners dismissed respondent on the ground of gross negligence resulting to loss of
trust and confidence.9 Meanwhile, Chiara Maes parents filed a P7 Million damage suit against petitioners
and respondent, among others. They also filed against respondent a criminal complaint for reckless
imprudence resulting in homicide.
On July 25, 2001, respondent in turn filed a complaint 10 against the school and/or Sr. Crispina Tolentino
for illegal dismissal, with a prayer for reinstatement with full backwages and other money claims,
damages and attorneys fees.
In dismissing the complaint, the Labor Arbiter declared that respondent was validly terminated for gross
neglect of duty. He opined that Chiara Mae drowned because respondent had left the pupils without any
adult supervision. He also noted that the absence of adequate facilities should have alerted respondent
before allowing the pupils to use the swimming pool. The Labor Arbiter further concluded that although
respondents negligence was not habitual, the same warranted her dismissal since death resulted
therefrom.
Respondent appealed to the NLRC which, however, affirmed the dismissal of the complaint.
Aggrieved, respondent instituted a petition for certiorari before the Court of Appeals, which ruled in her
favor. The appellate court observed that there was insufficient proof that respondents negligence was
both gross and habitual. The Court of Appeals disposed, thus:
WHEREFORE, the Court hereby GRANTS the petition. The assailed September 20, 2002
Resolution of the National Labor Relations Commission entitled Corazon Taguiam vs. School of
the Holy Spirit and/or Sister Crispina Tolentino[,] NLRC NCR Case No. 00-07-03877-01[,] NLRC
NCR CA No. 031627-02 is herebyREVERSED and SET ASIDE, and a new one is
hereby ENTERED directing the private respondent the School of the Holy Spirit to:
(1) Pay the petitioner full backwages, plus all other benefits, bonuses and general
increases to which she would have been normally entitled, had she not been dismissed
and had she not been forced to stop working computed up to the finality of this decision;
(2) Pay the petitioner separation pay equivalent to one (1) month for every year of service
in addition to full backwages;

(3) Pay the petitioner an amount equivalent to 10% of the judgment award as attorneys
fees;
(4) Pay the cost of this suit.
SO ORDERED.11
In this petition, petitioners contend that the Court of Appeals erred in:
REVERSING AND SETTING ASIDE THE DECISION AND RESOLUTION OF THE NATIONAL LABOR
RELATIONS COMMISSION AFFIRMING THE DECISION OF THE LABOR ARBITER DISMISSING THE
COMPLAINT FOR LACK OF MERIT.12
Simply stated, the sole issue presented for our resolution is whether respondents dismissal on the
ground of gross negligence resulting to loss of trust and confidence was valid.
The issue of whether a party is negligent is a question of fact. As a rule, the Supreme Court is not a trier
of facts and this applies with greater force in labor cases. 13 However, where the issue is shrouded by a
conflict of factual perception, we are constrained to review the factual findings of the Court of Appeals. In
this case, the findings of facts of the appellate court contradict those of the Labor Arbiter and the NLRC. 14
Under Article 28215 of the Labor Code, gross and habitual neglect of duties is a valid ground for an
employer to terminate an employee. Gross negligence implies a want or absence of or a failure to
exercise slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of
consequences without exerting any effort to avoid them. 16 Habitual neglect implies repeated failure to
perform ones duties for a period of time, depending upon the circumstances. 17
Our perusal of the records leads us to conclude that respondent had been grossly negligent. First, it is
undisputed that Chiara Maes permit form was unsigned. Yet, respondent allowed her to join the activity
because she assumed that Chiara Maes mother has allowed her to join it by personally bringing her to
the school with her packed lunch and swimsuit.
The purpose of a permit form is precisely to ensure that the parents have allowed their child to join the
school activity involved. Respondent cannot simply ignore this by resorting to assumptions. Respondent
admitted that she was around when Chiara Mae and her mother arrived. She could have requested the
mother to sign the permit form before she left the school or at least called her up to obtain her conformity.
Second, it was respondents responsibility as Class Adviser to supervise her class in all activities
sanctioned by the school.18 Thus, she should have coordinated with the school to ensure that proper
safeguards, such as adequate first aid and sufficient adult personnel, were present during their activity.
She should have been mindful of the fact that with the number of pupils involved, it would be impossible
for her by herself alone to keep an eye on each one of them.
As it turned out, since respondent was the only adult present, majority of the pupils were left unsupervised
when she followed the two pupils who sneaked out. In the light of the odds involved, respondent should
have considered that those who sneaked out could not have left the school premises since there were
guards manning the gates. The guards would not have allowed them to go out in their swimsuits and
without any adult accompanying them. But those who stayed at the pool were put at greater risk, when
she left them unattended by an adult.1avvphi1
Notably, respondents negligence, although gross, was not habitual. In view of the considerable resultant
damage, however, we are in agreement that the cause is sufficient to dismiss respondent. This is not the
first time that we have departed from the requirements laid down by the law that neglect of duties must be

both gross and habitual. In Philippine Airlines, Inc. v. NLRC, 19 we ruled that Philippine Airlines (PAL)
cannot be legally compelled to continue with the employment of a person admittedly guilty of gross
negligence in the performance of his duties although it was his first offense. In that case, we noted that a
mere delay on PALs flight schedule due to aircraft damage entails problems like hotel accommodations
for its passengers, re-booking, the possibility of law suits, and payment of special landing fees not to
mention the soaring costs of replacing aircraft parts. 20 In another case, Fuentes v. National Labor
Relations Commission,21 we held that it would be unfair to compel Philippine Banking Corporation to
continue employing its bank teller. In that case, we observed that although the tellers infraction was not
habitual, a substantial amount of money was lost. The deposit slip had already been validated prior to its
loss and the amount reflected thereon is already considered as current liabilities in the banks balance
sheet.22 Indeed, the sufficiency of the evidence as well as the resultant damage to the employer should be
considered in the dismissal of the employee. In this case, the damage went as far as claiming the life of a
child.
As a result of gross negligence in the present case, petitioners lost its trust and confidence in respondent.
Loss of trust and confidence to be a valid ground for dismissal must be based on a willful breach of trust
and founded on clearly established facts. A breach is willful if it is done intentionally, knowingly and
purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly,
heedlessly or inadvertently.23 Otherwise stated, it must rest on substantial grounds and not on the
employers arbitrariness, whims, caprices or suspicion; otherwise, the employee would eternally remain at
the mercy of the employer. It should be genuine and not simulated; nor should it appear as a mere
afterthought to justify earlier action taken in bad faith or a subterfuge for causes which are improper,
illegal or unjustified. It has never been intended to afford an occasion for abuse because of its subjective
nature. There must, therefore, be an actual breach of duty committed by the employee which must be
established by substantial evidence.24
As a teacher who stands in loco parentis to her pupils, respondent should have made sure that the
children were protected from all harm while in her company.25 Respondent should have known that
leaving the pupils in the swimming pool area all by themselves may result in an accident. A simple
reminder "not to go to the deepest part of the pool" 26 was insufficient to cast away all the serious dangers
that the situation presented to the children, especially when respondent knew that Chiara Mae cannot
swim.27 Dismally, respondent created an unsafe situation which exposed the lives of all the pupils
concerned to real danger. This is a clear violation not only of the trust and confidence reposed on her by
the parents of the pupils but of the school itself.
Finally, we note that based on the criminal complaint filed by Chiara Maes parents, the Assistant City
Prosecutor found probable cause to indict respondent for the crime of reckless imprudence resulting in
homicide. The Assistant City Prosecutor held that respondent "should have foreseen the danger lurking in
the waters." By leaving her pupils in the swimming pool, respondent displayed an "inexcusable lack of
foresight and precaution."28 While this finding is not controlling for purposes of the instant case, this only
supports our conclusion that respondent has indeed been grossly negligent.
All told, there being a clear showing that respondent was culpable for gross negligence resulting to loss of
trust and confidence, her dismissal was valid and legal. It was error for the Court of Appeals to reverse
and set aside the resolution of the NLRC.
WHEREFORE, the petition is GRANTED. The assailed Decision dated June 7, 2004 of the Court of
Appeals in CA-G.R. SP No. 81480 is SET ASIDE. The Resolution dated September 20, 2002 of the
National Labor Relations Commission in NLRC NCR CA No. 031627-02 is REINSTATED. No
pronouncement as to costs.
SO ORDERED.

RULES OF PROCEDURE RE: SUMMARY PROCEEDINGS IN THE FAMILY CODE

G.R. No. 163604

May 6, 2005

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
THE HON. COURT OF APPEALS (Twentieth Division), HON. PRESIDING JUDGE FORTUNITO L.
MADRONA, RTC-BR. 35 and APOLINARIA MALINAO JOMOC, respondents.
DECISION
CARPIO-MORALES, J.:
In "In the Matter of Declaration of Presumptive Death of Absentee Spouse Clemente P. Jomoc, Apolinaria
Malinao Jomoc, petitioner," the Ormoc City, Regional Trial Court, Branch 35, by Order of September 29,
1999,1 granted the petition on the basis of the Commissioners Report 2 and accordingly declared the
absentee spouse, who had left his petitioner-wife nine years earlier, presumptively dead.
In granting the petition, the trial judge, Judge Fortunito L. Madrona, cited Article 41, par. 2 of the Family
Code. Said article provides that for the purpose of contracting a valid subsequent marriage during the
subsistence of a previous marriage where the prior spouse had been absent for four consecutive years,
the spouse present must institute summary proceedings for the declaration of presumptive death of the
absentee spouse, without prejudice to the effect of the reappearance of the absent spouse.
The Republic, through the Office of the Solicitor General, sought to appeal the trial courts order by filing a
Notice of Appeal.3
By Order of November 22, 1999s,4 the trial court, noting that no record of appeal was filed and served "as
required by and pursuant to Sec. 2(a), Rule 41 of the 1997 Rules of Civil Procedure, the present case
being a special proceeding," disapproved the Notice of Appeal.
The Republics Motion for Reconsideration of the trial courts order of disapproval having been denied
by Order of January 13, 2000,5 it filed a Petition for Certiorari6 before the Court of Appeals, it contending
that the declaration of presumptive death of a person under Article 41 of the Family Code is not a special
proceeding or a case of multiple or separate appeals requiring a record on appeal.
By Decision of May 5, 2004,7 the Court of Appeals denied the Republics petition on procedural and
substantive grounds in this wise:
At the outset, it must be stressed that the petition is not sufficient in form. It failed to attach to its
petition a certified true copy of the assailed Order dated January 13, 2000 [denying its Motion for
Reconsideration of the November 22, 1999 Order disapproving its Notice of Appeal]. Moreover,
the petition questioned the [trial courts] Order dated August 15, 1999, which declared Clemente
Jomoc presumptively dead, likewise for having been issued with grave abuse of discretion
amounting to lack of jurisdiction, yet, not even a copy could be found in the records. On this score
alone, the petition should have been dismissed outright in accordance with Sec. 3, Rule 46 of the
Rules of Court.

However, despite the procedural lapses, the Court resolves to delve deeper into the substantive issue of
the validity/nullity of the assailed order.
The principal issue in this case is whether a petition for declaration of the presumptive death of a
person is in the nature of a special proceeding. If it is, the period to appeal is 30 days and the party
appealing must, in addition to a notice of appeal, file with the trial court a record on appeal to perfect its
appeal. Otherwise, if the petition is an ordinary action, the period to appeal is 15 days from notice or
decision or final order appealed from and the appeal is perfected by filing a notice of appeal (Section 3,
Rule 41, Rules of Court).
As defined in Section 3(a), Rule 1 of the Rules of Court, "a civil action is one by which a party sues
another for the enforcement or protection of a right, or the prevention of redress of a wrong" while a
special proceeding under Section 3(c) of the same rule is defined as "a remedy by which a party seeks to
establish a status, a right or a particular fact (Heirs of Yaptinchay, et al. v. Del Rosario, et al., G.R. No.
124320, March 2, 1999).
Considering the aforementioned distinction, this Court finds that the instant petition is in the nature of a
special proceeding and not an ordinary action. The petition merely seeks for a declaration by the trial
court of the presumptive death of absentee spouse Clemente Jomoc. It does not seek the enforcement or
protection of a right or the prevention or redress of a wrong. Neither does it involve a demand of right or a
cause of action that can be enforced against any person.
On the basis of the foregoing discussion, the subject Order dated January 13, 2000 denying OSGs
Motion for Reconsideration of the Order dated November 22, 1999 disapproving its Notice of Appeal was
correctly issued. The instant petition, being in the nature of a special proceeding, OSG should have
filed, in addition to its Notice of Appeal, a record on appeal in accordance with Section 19 of the
Interim Rules and Guidelines to Implement BP Blg. 129 and Section 2(a), Rule 41 of the Rules of Court . .
. (Emphasis and underscoring supplied)
The Republic (petitioner) insists that the declaration of presumptive death under Article 41 of the Family
Code is not a special proceeding involving multiple or separate appeals where a record on appeal shall
be filed and served in like manner.
Petitioner cites Rule 109 of the Revised Rules of Court which enumerates the cases wherein multiple
appeals are allowed and a record on appeal is required for an appeal to be perfected. The petition for the
declaration of presumptive death of an absent spouse not being included in the enumeration, petitioner
contends that a mere notice of appeal suffices.
By Resolution of December 15, 2004,8 this Court, noting that copy of the September 27, 2004
Resolution9requiring respondent to file her comment on the petition was returned unserved with
postmasters notation "Party refused," Resolved to consider that copy deemed served upon her.
The pertinent provisions on the General Provisions on Special Proceedings, Part II of the Revised
Rules of Court entitled SPECIAL PROCEEDINGS, read:
RULE 72
SUBJECT MATTER AND APPLICABILITY
OF GENERAL RULES
Section 1. Subject matter of special proceedings. Rules of special proceedings are provided for
in the following:

(a) Settlement of estate of deceased persons;

(b) Escheat;
(c) Guardianship and custody of children;
(d) Trustees;
(e) Adoption;
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of minor natural children;
(l) Constitution of family home;
(m) Declaration of absence and death;
(n) Cancellation or correction of entries in the civil registry.
Sec. 2. Applicability of rules of civil actions. In the absence of special provisions, the rules
provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings.
(Underscoring supplied)
The pertinent provision of the Civil Code on presumption of death provides:
Art. 390. After an absence of seven years, it being unknown whether or not the absentee still
lives, he shall be presumed dead for all purposes, except for those of succession.
x x x (Emphasis and underscoring supplied)
Upon the other hand, Article 41 of the Family Code, upon which the trial court anchored its grant of the
petition for the declaration of presumptive death of the absent spouse, provides:
Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall
be null and void, unless before the celebration of the subsequent marriage, the prior spouses had
been absent for four consecutive years and the spouse present had a well-founded belief that the
absent spouses was already dead. In case of disappearance where there is danger of death
under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of
only two years shall be sufficient.

For the purpose pf contracting the subsequent marriage under the preceding paragraph, the
spouses present must institute a summary proceeding as provided in this Code for the
declaration of presumptive death of the absentee, without prejudice to the effect of a
reappearance of the absent spouse. (Emphasis and underscoring supplied)
Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal, invoked by the trial court in
disapproving petitioners Notice of Appeal, provides:
Sec. 2. Modes of appeal. (a) Ordinary appeal. - The appeal to the Court of Appeals in cases decided by the Regional Trial
Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the
court which rendered the judgment or final order appealed from and serving a copy thereof upon
the adverse party. No record on appeal shall be required except in special proceedings and
other cases of multiple or separate appeals where the law or these Rules so require. In
such cases, the record on appeal shall be filed and served in like manner. (Emphasis and
underscoring supplied)
xxx
By the trial courts citation of Article 41 of the Family Code, it is gathered that the petition of Apolinaria
Jomoc to have her absent spouse declared presumptively dead had for its purpose her desire to contract
a valid subsequent marriage. Ergo, the petition for that purpose is a "summary proceeding," following
above-quoted Art. 41, paragraph 2 of the Family Code.
Since Title XI of the Family Code, entitled SUMMARY JUDICIAL PROCEEDING IN THE FAMILY LAW,
contains the following provision, inter alia:
xxx
Art. 238. Unless modified by the Supreme Court, the procedural rules in this Title shall apply in all
casesprovided for in this Codes requiring summary court proceedings. Such cases shall be
decided in an expeditious manner without regard to technical rules. (Emphasis and
underscoring supplied)
x x x,
there is no doubt that the petition of Apolinaria Jomoc required, and is, therefore, a summary proceeding
under the Family Code, not a special proceeding under the Revised Rules of Court appeal for which calls
for the filing of a Record on Appeal. It being a summary ordinary proceeding, the filing of a Notice of
Appeal from the trial courts order sufficed.
That the Family Code provision on repeal, Art. 254, provides as follows:
Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of Republic Act No. 386, otherwise
known as the Civil Code of the Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30,
31, 39, 40, 41 and 42 of Presidential Decree No. 603, otherwise known as the Child and Youth
Welfare Code, as amended, andall laws, decrees, executive orders, proclamations rules and
regulations, or parts thereof, inconsistent therewith are hereby repealed, (Emphasis and
underscoring supplied),

seals the case in petitioners favor.

Finally, on the alleged procedural flaw in petitioners petition before the appellate court. Petitioners failure
to attach to his petition before the appellate court a copy of the trial courts order denying its motion for
reconsideration of the disapproval of its Notice of Appeal is not necessarily fatal, for the rules of procedure
are not to be applied in a technical sense. Given the issue raised before it by petitioner, what the
appellate court should have done was to direct petitioner to comply with the rule.
As for petitioners failure to submit copy of the trial courts order granting the petition for declaration of
presumptive death, contrary to the appellate courts observation that petitioner was also assailing it,
petitioners 8-page petition10 filed in said court does not so reflect, it merely having assailed the order
disapproving the Notice of Appeal.
WHEREFORE, the assailed May 5, 2004 Decision of the Court of Appeals is hereby REVERSED and
SET ASIDE. Let the case be REMANDED to it for appropriate action in light of the foregoing discussion.
SO ORDERED.

G.R. No. 160258

January 19, 2005

REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
GLORIA BERMUDEZ-LORINO, respondent.
DECISION

GARCIA, J.:
Via this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Republic of the
Philippines, represented by the Office of the Solicitor General (OSG), seeks the reversal and setting aside
of the decision dated September 23, 2003 of the Court of Appeals in CA-G.R. CV No. 73884, which
affirmed on appeal an earlier decision of the Regional Trial Court (RTC) at San Mateo, Rizal in a
summary judicial proceeding thereat commenced by the herein respondent Gloria Bermudez-Lorino for
the declaration of the presumptive death of her absent spouse, Francisco Lorino, Jr., based on the
provisions of Article 41 of the Family Code, for purposes of remarriage.
The facts may be summarized, as follows:
Respondent Gloria Bermudez-Lorino (Gloria for brevity), and her husband were married on June 12,
1987. Out of this marriage, she begot three (3) children, namely: Francis Jeno, Fria Lou and
Fatima.1a\^/phi1.net

Before they got married in 1987, Gloria was unaware that her husband was a habitual drinker, possessed
with violent character/attitude, and had the propensity to go out with friends to the extent of being unable
to engage in any gainful work.
Because of her husbands violent character, Gloria found it safer to leave him behind and decided to go
back to her parents together with her three (3) children. In order to support the children, Gloria was
compelled to work abroad.
From the time of her physical separation from her husband in 1991, Gloria has not heard of him at all.
She had absolutely no communications with him, or with any of his relatives.
On August 14, 2000, nine (9) years after she left her husband, Gloria filed a verified petition with the
Regional Trial Court (RTC) at San Mateo, Rizal under the rules on Summary Judicial Proceedings in the
Family Lawprovided for in the Family Code, which petition was docketed in the same court as Special
Proceeding No. 325-00 SM.
On August 28, 2000, the RTC issued an order directing, inter alia, the publication of the petition in a
newspaper of general circulation, thus:
A verified petition was filed by herein petitioner through counsel alleging that she married
Francisco Lorino, Jr. on June 12, 1987 but because of the violent character of his husband, she
decided to go back to her parents and lived separately from her husband. After nine (9) years,
there was absolutely no news about him and she believes that he is already dead and is now
seeking through this petition for a Court declaration that her husband is judicially presumed dead
for the purpose of remarriage.
Finding the said petition to be sufficient in form and substance, the same is hereby set for hearing
before this Court on September 18, 2000 at 8:30 oclock in the morning at which place, date and
time, any or all persons who may claim any interest thereto may appear and show cause why the
same should not be granted.
Let a copy of this Order be published in a newspaper of general circulation in this province once a
week for three (3) consecutive weeks and be posted in the bulletin boards of the Hall of Justice
and the Municipal Hall, San Mateo, Rizal, all at the expense of the petitioner.1awphi1.nt
Furnish the Office of the Solicitor General a copy of this Order together with a copy of the petition.
Further, send a copy of this Order to the last known address of Francisco Lorino, Jr. at 719
Burgos St., Sta. Elena, Marikina City.
SO ORDERED1
The evidence in support of the summary judicial proceeding are: the order of publication dated August 28,
2000 (Exhibit "A"); affidavit of publication dated September 16, 2000 (Exhibit "B")2 ; copies of the
newspapers where the order appeared (Exhibits "C" to "E-1")3 ; a deposition dated September 4, 2000 of
Gloria taken in Hong Kong (Exhibit "G")4 ; Glorias affidavit dated October 21, 1999, also executed in
Hong Kong (Exhibit "G1")5 ; and a certification by Department of Foreign Affairs Authentication Officer,
Catalina C. Gonzalez, dated November 3, 1999, therein certifying that the signature of Vice Consul
Adriane Bernie C. Candolada, appearing below the jurat in Glorias affidavit of October 21, 1999, is
authentic (Exhibit "G2")6 .

In a decision dated November 7, 2001, the RTC, finding merit in the summary petition, rendered judgment
granting the same, to wit:
WHEREFORE, this Court in view of the facts and circumstances obtaining, finds the petition with
merit and hereby grants its imprimatur to the petition. Judgment is hereby rendered declaring the
presumptive death/absence of Francisco Lorino, Jr. pursuant to Art. 41 of the New Family Code
but subject to all restrictions and conditions provided therein.
SO ORDERED.7
Despite the judgment being immediately final and executory under the provisions of Article 247 of the
Family Code, thus:
Art. 247. The judgment of the court shall be immediately final and executory,
the Office of the Solicitor General, for the Republic of the Philippines, nevertheless filed a Notice of
Appeal.8Acting thereon, the RTC had the records elevated to the Court of Appeals which docketed the
case as CA-G.R. CV No. 73884.
In a decision dated September 23, 2003, the Court of Appeals, treating the case as an ordinary appealed
case under Rule 41 of the Revised Rules on Civil Procedure, denied the Republics appeal and
accordingly affirmed the appealed RTC decision:
WHEREFORE, based on the foregoing premises, the instant appeal is DENIED. Accordingly, the
appealed November 7, 2001 Decision of the Regional Trial Court of San Mateo, Rizal in Spec.
Proc. No. 325-00 SM is hereby AFFIRMED.
SO ORDERED.9
Without filing any motion for reconsideration, petitioner Republic directly went to this Court via the instant
recourse under Rule 45, maintaining that the petition raises a pure question of law that does not require
prior filing of a motion for reconsideration.
The foregoing factual antecedents present to this Court the following issues:
Whether or not the court of appeals duly acquired jurisdiction over the appeal on a final and executory
judgment of the regional trial court; and
Whether or not the factual and legal bases for a judicial declaration of presumptive death under article 41
of the family code were duly established in this case.
The Court rules against petitioner Republic.
Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY
LAW, sets the tenor for cases covered by these rules, to wit:
Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all
cases provided for in this Code requiring summary court proceedings. Such cases shall be
decided in an expeditious manner without regard to technical rules.

Judge Elizabeth Balquin-Reyes of RTC, Branch 75, San Mateo, Rizal duly complied with the above-cited
provision by expeditiously rendering judgment within ninety (90) days after the formal offer of evidence by
therein petitioner, Gloria Bermudez-Lorino.
The problem came about when the judge gave due course to the Republics appeal upon the filing of a
Notice of Appeal, and had the entire records of the case elevated to the Court of Appeals, stating in her
order of December 18, 2001, as follows:
Notice of Appeal having been filed through registered mail on November 22, 2001 by the Office of
the Solicitor General who received a copy of the Decision in this case on November 14, 2001,
within the reglementary period fixed by the Rules, let the entire records of this case be
transmitted to the Court of Appeals for further proceedings.
SO ORDERED.10
In Summary Judicial Proceedings under the Family Code, there is no reglementary period within which to
perfect an appeal, precisely because judgments rendered thereunder, by express provision of Section
247, Family Code, supra, are "immediately final and executory". It was erroneous, therefore, on the part
of the RTC to give due course to the Republics appeal and order the transmittal of the entire records of
the case to the Court of Appeals.
An appellate court acquires no jurisdiction to review a judgment which, by express provision of law, is
immediately final and executory. As we have said in Veloria vs. Comelec,11 "the right to appeal is not a
natural right nor is it a part of due process, for it is merely a statutory privilege." Since, by express
mandate of Article 247 of the Family Code, all judgments rendered in summary judicial proceedings in
Family Law are "immediately final and executory", the right to appeal was not granted to any of the parties
therein. The Republic of the Philippines, as oppositor in the petition for declaration of presumptive death,
should not be treated differently. It had no right to appeal the RTC decision of November 7, 2001.
It was fortunate, though, that the Court of Appeals, acting through its Special Fourth Division, with Justice
Elvi John S. Asuncion as Acting Chairman and ponente, denied the Republics appeal and affirmed
without modification the final and executory judgment of the lower court. For, as we have held in Nacuray
vs. NLRC :12
Nothing is more settled in law than that when a judgment becomes final and executory it becomes
immutable and unalterable. The same may no longer be modified in any respect, even if the modification
is meant to correct what is perceived to be an erroneous conclusion of fact or law, and whether made by
the highest court of the land (citing Nunal v. Court of Appeals, G.R. No. 94005, 6 April 1993, 221 SCRA
26).
But, if only to set the records straight and for the future guidance of the bench and the bar, let it be stated
that the RTCs decision dated November 7, 2001, was immediately final and executory upon notice to the
parties. It was erroneous for the OSG to file a notice of appeal, and for the RTC to give due course
thereto. The Court of Appeals acquired no jurisdiction over the case, and should have dismissed the
appeal outright on that ground.
This judgment of denial was elevated to this Court via a petition for review on certiorari under Rule 45.
Although the result of the Court of Appeals denial of the appeal would apparently be the same, there is a
big difference between having the supposed appeal dismissed for lack of jurisdiction by virtue of the fact
that the RTC decision sought to be appealed is immediately final and executory, and the denial of the
appeal for lack of merit. In the former, the supposed appellee can immediately ask for the issuance of an

Entry of Judgment in the RTC, whereas, in the latter, the appellant can still raise the matter to this Court
on petition for review and the RTC judgment cannot be executed until this Court makes the final
pronouncement.
The Court, therefore, finds in this case grave error on the part of both the RTC and the Court of Appeals.
To stress, the Court of Appeals should have dismissed the appeal on ground of lack of jurisdiction, and
reiterated the fact that the RTC decision of November 7, 2001 was immediately final and executory. As it
were, the Court of Appeals committed grave reversible error when it failed to dismiss the erroneous
appeal of the Republic on ground of lack of jurisdiction because, by express provision of law, the
judgment was not appealable.
WHEREFORE, the instant petition is hereby DENIED for lack of merit.1a\^/phi1.net No pronouncement as
to costs.
SO ORDERED.

G.R. No. 161062

July 31, 2009

REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
FERVENTINO U. TANGO, Respondent.
DECISION

QUISUMBING, J.:
This is a petition for review on certiorari of the Decision 1 dated November 28, 2003 of the Court of
Appeals in CA-G.R. CV No. 76387 which denied the Republics appeal from the Order 2 dated July 23,
2002 of the Regional Trial Court (RTC) of Ligao City, Branch 11 in Special Proceeding No. 357. The trial
court had declared the wife of respondent Ferventino U. Tango (Ferventino), Maria Jose Villarba (Maria),
presumptively dead under Article 413of the Family Code.
The present controversy arose from the following facts:
On March 9, 1987, Ferventino and Maria were married 4 in civil rites before then Mayor Ignacio Bunye of
Muntinlupa City. None of Marias relatives witnessed the ceremony as they were opposed to her
relationship with Ferventino. The two had only spent a night together and had been intimate once when
Maria told Ferventino that she and her family will soon be leaving for the United States of America (USA).
Maria assured Ferventino, however, that she will file a petition so he can live with her in the USA. In the
event that said petition is denied, she promised to return to the Philippines to live with him. On March 13,
1987, Maria and her family flew to Seattle, USA.

Ferventino alleges that Maria kept in touch for a year before she stopped responding to his letters. Out of
resentment, he burned all the letters Maria wrote him. He claims to have forgotten her address since.
Ferventino recounts the efforts he made to find Maria. Upon inquiry from the latters uncle, Antonio
Ledesma, in Las Pias, Ferventino learned that even Marias relatives were unaware of her whereabouts.
He also solicited the assistance of a friend in Texas, Capt. Luis Aris of the U.S. Air Force, but to no avail.
Finally, he sought the aid of his parents Antonio and Eusebia in Los Angeles, and his aunt Anita CastroMayor in Seattle. Like, Ledesma though, their attempts to find Maria proved fruitless. The next 14 years
went by without any news of Maria.
On the belief that his wife had died, Ferventino filed a verified petition 5 dated October 1, 2001 before the
Ligao City RTC for the declaration of presumptive death of Maria within the contemplation of Article 41 of
the Family Code.
When the case was called for initial hearing on January 8, 2002, nobody entered any opposition. On July
22, 2002, Ferventino presented evidence ex parte and testified in court about the details of his search. On
July 23, 2002, Branch 11 of the Ligao City RTC issued an Order, the dispositive portion of which reads as
follows:
WHEREFORE, judgment is hereby rendered, declaring MARIA JOSE V. VILLARBA, wife of
FERVENTINO U. TANGO, presumptively dead within the meaning of Article 41 of the Family
Code.
SO ORDERED. 6
This prompted the Office of the Solicitor General (OSG), for the Republic, to file a Notice of
Appeal.7 Acting thereon, Presiding Judge Romulo SG. Villanueva of the Ligao City RTC had the records
of the case transmitted to the Court of Appeals.
The Court of Appeals, treating the case as an ordinary appealed case under Rule 41 of the Rules of
Court, affirmed the RTCs Order. It held that Marias absence for 14 years without information about her
location despite diligent search by Ferventino was sufficient to support a well-founded belief of her death.
The appellate court observed that neither the OSG nor the Assistant Provincial Prosecutor objected to the
evidence which Ferventino presented on trial. It noted, in particular, that the OSG did not dispute the
adequacy of Ferventinos basis to engender a well-founded belief that Maria is dead. Hence, in a Decision
dated November 28, 2003, the Court of Appeals denied the Republics appeal in this tenor:
WHEREFORE, the appeal is hereby DENIED. Accordingly, the July 23, 2002 Order of the
Regional Trial Court of Ligao City, Branch 11 in Spec. Proc. No. 357 is AFFIRMED.
SO ORDERED.8
Before us, petitioner anchors this petition for review on certiorari on the following two grounds:
I.
The testimony of respondent on the alleged efforts made by his friend and relatives in locating his missing
wife in Seattle, United States, is hearsay and devoid of probative value[; and]
II.

Even assuming that the aforesaid testimony may be considered in evidence, the alleged efforts of
respondents friend and relatives in locating his missing wife in Seattle, United States, do not sufficiently
support a "well-founded belief" that respondents absent spouse is probably dead. 9
Unadorned, the issues for our determination are: (1) whether the testimony of respondent Ferventino is
hearsay; and (2) whether respondent Ferventino has established a basis to form a well-founded belief
that his absent spouse is already dead.
The Republic, through the OSG, contests the appellate courts holding that the absence of respondents
wife Maria for 14 years provides sufficient basis to entertain a well-founded belief that she is dead. The
OSG discounts respondents testimony, on the steps he took to find Maria, as hearsay because none of
the persons who purportedly helped in his search testified in court. Notably, the OSG observes that only
Capt. Aris gave a detailed account of his efforts to track down Maria. According to Capt. Aris, he went
over the Seattle phone directory for Marias name and inquired about her from the registrars office in
Seattle, but both efforts proved to be in vain.
The OSG belittles its failure to object to the admissibility of respondents testimony during trial. Instead, it
invokes Constitutional provisions that advocate the state policy of preserving marital institutions.
On March 16, 2007, respondents counsel, Atty. Richie R. Regala, manifested to this Court his intent to
withdraw as counsel for respondent. According to Atty. Regala, he received a letter by which respondent
expressed a desire to withdraw from the proceeding. 10 In view of this, the Court issued a Resolution11 on
April 21, 2008 which deemed as waived the filing of respondents comment on the petition. Previously, the
Court of Appeals had also issued a Resolution12 dated October 15, 2003 submitting the case for decision
and ordering its re-raffling for respondents failure to file an appellees brief. In other words, apart from the
verified petition for the declaration of presumptive death of Maria dated October 1, 2001, which
respondent filed before the Ligao City RTC, he has not submitted any other pleading in connection with
the petition.
Respondents apparent lack of desire to pursue the proceedings notwithstanding, the Court is inclined to
rule against the Republic.
This case presents an opportunity for us to settle the rule on appeal of judgments rendered in summary
proceedings under the Family Code and accordingly, refine our previous decisions thereon.
Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY
LAW, establishes the rules that govern summary court proceedings in the Family Code:
ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all
cases provided for in this Code requiring summary court proceedings. Such cases shall be
decided in an expeditious manner without regard to technical rules.
In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters two and three
of the same title. It states:
ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary
proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable.
(Emphasis supplied.)
In plain text, Article 247 in Chapter 2 of the same title reads:

ART 247. The judgment of the court shall be immediately final and executory.
By express provision of law, the judgment of the court in a summary proceeding shall be immediately final
and executory. As a matter of course, it follows that no appeal can be had of the trial courts judgment in a
summary proceeding for the declaration of presumptive death of an absent spouse under Article 41 of the
Family Code. It goes without saying, however, that an aggrieved party may file a petition for certiorari to
question abuse of discretion amounting to lack of jurisdiction. Such petition should be filed in the Court of
Appeals in accordance with the Doctrine of Hierarchy of Courts. To be sure, even if the Courts original
jurisdiction to issue a writ of certiorari is concurrent with the RTCs and the Court of Appeals in certain
cases, such concurrence does not sanction an unrestricted freedom of choice of court forum. 13 From the
decision of the Court of Appeals, the losing party may then file a petition for review on certiorari under
Rule 45 of the Rules of Court with the Supreme Court. This is because the errors which the court may
commit in the exercise of jurisdiction are merely errors of judgment which are the proper subject of an
appeal.141avvphi1
In the case before us, petitioner committed a serious procedural lapse when it filed a notice of appeal in
the Court of Appeals instead of a petition for certiorari. The RTC equally erred in giving due course to said
appeal and ordering the transmittal of the records of the case to the appellate court. By no means did the
Court of Appeals acquire jurisdiction to review the judgment of the RTC which, by express provision of
law, was immediately final and executory.
Adding to the confusion, the Court of Appeals entertained the appeal and treated the same as an ordinary
appeal under Rule 41 of the Rules of Court. As it were, the Court of Appeals committed grave reversible
error when it failed to dismiss the erroneous appeal of the Republic on the ground of lack of jurisdiction
because, by express provision of the law, the judgment was not appealable. 15
Before us, petitioner filed a petition for review on certiorari under Rule 45 of the Rules of Court. But, even
if petitioner used the correct mode of appeal at this level, the hands of the Court are tied. Without a doubt,
the decision of the trial court had long become final.
Deeply ingrained in our jurisprudence is the principle that a decision that has acquired finality becomes
immutable and unalterable. As such, it may no longer be modified in any respect even if the modification
is meant to correct erroneous conclusions of fact or law and whether it will be made by the court that
rendered it or by the highest court of the land. 16 In light of the foregoing, it would be unnecessary, if not
useless, to discuss the issues raised by petitioner.
The doctrine of finality of judgment is grounded on the fundamental principle of public policy and sound
practice that, at the risk of occasional error, the judgment of courts and the award of quasi-judicial
agencies must become final on some definite date fixed by law. The only exceptions to the general rule
are the correction of clerical errors, the so-called nunc pro tunc entries which cause no prejudice to any
party, void judgments, and whenever circumstances transpire after the finality of the decision which
render its execution unjust and inequitable.17 None of the exceptions obtains here to merit the review
sought.
WHEREFORE the instant petition is DENIED for lack of merit. No pronouncement as to costs.
SO ORDERED.

SURNAMES
G.R. No. 88202 December 14, 1998
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS and CYNTHIA VICENCIO, respondents.

QUISUMBING, J.:
This is an interposed by the Republic of the Philippines as represented by the Office of the Solicitor
General (OSG), assailing the decision 1 of the Court of Appeals promulgated on April 28, 1989, which
affirmed the decision 2 of the Regional Trial Court of Manila, Branch 52, dated August 31, 1987. The
appealed decision granted private respondent Cynthia Vicencio's petition for change of surname, from
"Vicencio" to "Yu".
As found by the trial court, hereunder are the facts and circumstances of the case:
Petitioner's evidence is to the effect that she was born on 19 January 1971 at the Capitol
Medical Center, Quezon City, to the spouses Pablo Castro Vicencio and Fe Esperanza
de Vega Leabres (Exh. C, also marked Annex A of Petition); that on 10 January 1972,
after a marital spat, Pablo Vicencio left their conjugal abode then situated at
Meycauayan, Bulacan; that since then Pablo Vicencio never reappeared nor sent support
to his family and it was Ernesto Yu who had come to the aid of Fe Esperanza Labres (sic)
and her children; that on 29 June 1976, Fe Esperanza Leabres filed a petition in the then
Juvenile and Domestic Relations Court of Manila for dissolution of their conjugal
partnership, Civil Case No. E-02009, which was granted in a decision rendered by the
Hon. Regina C. Ordoez Benitez on 11 July 1977 (Exhs. D, D-1 to D-3); that sometime in
1983, petitioner's mother filed another petition for change of name, Sp. Proc No. 8316346, that is to drop the surname of her husband therefrom, and after hearing a
decision was rendered on 5 July 1983 by the Hon. Emeterio C. Cui of Branch XXV of this
Court approving the petition (Exh. E); that in 1984, petitioner's mother again filed another
petition with this Court, Sp. Proc. No. 84-22605, for the declaration of Pablo Vicencio as
an absentee, and which petition was granted on 26 April 1984 in a decision rendered by
the Hon. Corona Ibay-Somera (Exh. F & F-1); that on 15 April 1986, petitioner's mother
and Ernesto Yu were joined in matrimony in a ceremony solemnized by Mayor Benjamin
S. Abalos of Mandaluyong, Metro Manila (Exh. G.).
It was also established that even (sic) since her childhood, petitioner had not known
mush less remembered her real father Pablo Vicencio, and her known father had been
and still is Ernesto Yu; that despite of which she had been using the family name
"Vicencio" in her school and other related activities therein; that in view of such situation,
confusion arose as to her parentage and she had been subjected to inquiries why she is
using Vicencio as her family name, both by her classmates and their neighbors, causing
her extreme embarrassment; that on two (2) occassions when she ran as a beauty
contestant in a Lions Club affair and in Manila Red Cross pageant, her name was entered
as Cynthia L. Yu; that her step-father had been priorly consulted about this petition and
had given his consent thereto; that in fact Ernesto Yu testified for petitioner and confirmed

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

We find merit in the Solicitor General's contention.

"The touchstone for the grant of a change of name is that there be "proper and reasonable cause" for
which the change is sought." 10 The assailed decision as affirmed by the appellate court does not
persuade us to depart from the applicability of the general rule on the use of surnames 11, specifically the
law which requires that legitimate children shall principally use the surname of their father 12.
Private respondent Cynthia Vicencio is the legitimate offspring of Fe Leabres and Pablo Vicencio. As
previously stated, a legitimate child generally bears the surname of his or her father. It must be stressed
that a change of name is a privilege, not a matter of right, addressed to the sound discretion of the court,
which has the duty to consider carefully the consequences of a change of name and to deny the same
unless weighty reasons are shown. 13
Confusion indeed might arise with regard to private respondent's parentage because of her surname. But
even, more confusion with grave legal consequences could arise if we allow private respondent to bear
her step-father's surname, even if she is not legally adopted by him. While previous decisions have
allowed children to bear the surname of their respective step-fathers even without the benefit of adoption,
these instances should be distinguished from the present case. In Calderon vs. Republic, 14 and Llaneta
vs. Agrava, 15 this Court allowed the concerned child to adopt the surname of the step-father, but unlike
the situation in the present case where private respondent is a legitimate child, in those cases the children
were not of legitimate parentage. In Moore vs.
Republic, 16 where the circumstances appears to be similar to the present case before us, the Court
upheld the Republic's position:
We find tenable this observation of government's counsel. Indeed, if a child born out of a
lawful wedlock be allowed to bear the surname of the second husband of the mother,
should the first husband die or be separated by a decree of divorce, there may result a
confusion as to his real paternity. In the long run the change may redound to the
prejudice of the child in the community.
While the purpose which may have animated petitioner is plausible and may run along
the feeling of cordiality and spiritual relationship that pervades among the members of the
Moore family, our hand is deferred by a legal barrier which we cannot at present overlook
or brush aside. 17
Similarly in Padilla vs. Republic, 18 the Court ruled that:
To allow said minors to adopt the surname of their mother's second husband, who is not
their father, could result in confusion in their paternity It could also create the suspicion
that said minors, who were born during the coverture of their mother with her first
husband, were in fact sired by Edward Padilla, thus bringing their legitimate status into
discredit. 19
Private respondent might sincerely wish to be in a position similar to that of her step-father's legitimate
children, a plausible reason the petition for change of name was filed in the first place. Moreover, it is
laudable that Ernesto Yu has treated Cynthia as his very own daughter, providing for all her needs as a
father would his own flesh and blood. However, legal constraints lead us to reject private respondent's
desire to use her stepfather's surname. Further, there is no assurance the end result would not be even
more detrimental to her person, for instead of bringing a stop to questions, the very change of name, if
granted, could trigger much deeper inquiries regarding her parentage.

Lastly, when this case was decided by the appellate court, private respondent was already 18 years old
but still considered a minor because Republic Act 6809, 20 lowering the age of majority, was then in effect.
However, regardless of private respondent's age, our conclusion remains considering the circumstances
before us and the lack of any legally justifiable cause for allowing the change of her surname.
WHEREFORE, the appealed decision is hereby REVERSED and SET ASIDE; and the instant petition is
hereby GRANTED.
SO ORDERED.

G.R. No. 159966. March 30, 2005

IN RE: PETITION FOR CHANGE OF NAME AND/OR CORRECTION/CANCELLATION OF ENTRY IN
CIVIL REGISTRY OF JULIAN LIN CARULASAN WANG also known as JULIAN LIN WANG, to be
amended/corrected as JULIAN LIN WANG, JULIAN LIN WANG, duly represented by his mother
ANNA LISA WANG, Petitioners,
vs.
CEBU CITY CIVIL REGISTRAR, duly represented by the Registrar OSCAR B. MOLO, Respondents.
DECISION
TINGA, J.:
I will not blot out his name out of the book of life.
Revelation 3:5
On 22 September 2002, petitioner Julian Lin Carulasan Wang, a minor, represented by his mother Anna
Lisa Wang, filed a petition dated 19 September 2002 for change of name and/or correction/cancellation of
entry in the Civil Registry of Julian Lin Carulasan Wang. Petitioner sought to drop his middle name and
have his registered name changed from Julian Lin Carulasan Wang to Julian Lin Wang.
The petition was docketed as Special Proceedings Case No. 11458 CEB and raffled to the Regional Trial
Court (RTC) of Cebu City, Branch 57.
The RTC established the following facts:
Julian Lin Carulasan Wang was born in Cebu City on February 20, 1998 to parents Anna Lisa Wang and
Sing-Foe Wang who were then not yet married to each other. When his parents subsequently got married
on September 22, 1998, ...they executed a deed of legitimation of their son so that the childs name was
changed from Julian Lin Carulasan to Julian Lin Carulasan Wang.
The parents of Julian Lin Carulasan Wang plan to stay in Singapore for a long time because they will let
him study there together with his sister named Wang Mei Jasmine who was born in Singapore. Since in

Singapore middle names or the maiden surname of the mother are not carried in a persons name, they
anticipate that Julian Lin Carulasan Wang will be discriminated against because of his current registered
name which carries a middle name. Julian and his sister might also be asking whether they are brother
and sister since they have different surnames. Carulasan sounds funny in Singapores Mandarin
language since they do not have the letter "R" but if there is, they pronounce it as "L." It is for these
reasons that the name of Julian Lin Carulasan Wang is requested to be changed to Julian Lin Wang. 1
On 30 April 2003, the RTC rendered a decision denying the petition. 2 The trial court found that the reason
given for the change of name sought in the petitionthat is, that petitioner Julian may be discriminated
against when studies in Singapore because of his middle namedid not fall within the grounds
recognized by law. The trial court ruled that the change sought is merely for the convenience of the child.
Since the State has an interest in the name of a person, names cannot be changed to suit the
convenience of the bearers. Under Article 174 of the Family Code, legitimate children have the right to
bear the surnames of the father and the mother, and there is no reason why this right should now be
taken from petitioner Julian, considering that he is still a minor. The trial court added that when petitioner
Julian reaches the age of majority, he could then decide whether he will change his name by dropping his
middle name.3
Petitioner filed a motion for reconsideration of the decision but this was denied in a resolution dated 20
May 2004.4 The trial court maintained that the Singaporean practice of not carrying a middle name does
not justify the dropping of the middle name of a legitimate Filipino child who intends to study there. The
dropping of the middle name would be tantamount to giving due recognition to or application of the laws
of Singapore instead of Philippine law which is controlling. That the change of name would not prejudice
public interest or would not be for a fraudulent purpose would not suffice to grant the petition if the reason
for the change of name is itself not reasonable.5
Petitioner then filed this Petition for Review on Certiorari (Under Rule 45)6 arguing that the trial court has
decided a question of substance not theretofore determined by the Court, that is: whether or not dropping
the middle name of a minor child is contrary to Article 174 7 of the Family Code. Petitioner contends that
"[W]ith globalization and mixed marriages, there is a need for the Supreme Court to rule on the matter of
dropping of family name for a child to adjust to his new environment, for consistency and harmony among
siblings, taking into consideration the "best interest of the child." 8 It is argued that convenience of the child
is a valid reason for changing the name as long as it will not prejudice the State and others. Petitioner
points out that the middle name "Carulasan" will cause him undue embarrassment and the difficulty in
writing or pronouncing it will be an obstacle to his social acceptance and integration in the Singaporean
community. Petitioner also alleges that it is error for the trial court to have denied the petition for change
of name until he had reached the age of majority for him to decide the name to use, contrary to previous
cases9 decided by this Court that allowed a minor to petition for change of name. 10
The Court required the Office of the Solicitor General (OSG) to comment on the petition. The OSG filed
itsComment11 positing that the trial court correctly denied the petition for change of name. The OSG
argues that under Article 174 of the Family Code, legitimate children have the right to bear the surnames
of their father and mother, and such right cannot be denied by the mere expedient of dropping the same.
According to the OSG, there is also no showing that the dropping of the middle name "Carulasan" is in
the best interest of petitioner, since mere convenience is not sufficient to support a petition for change of
name and/or cancellation of entry.12The OSG also adds that the petitioner has not shown any compelling
reason to justify the change of name or the dropping of the middle name, for that matter. Petitioners
allegation that the continued use of the middle name may result in confusion and difficulty is allegedly
more imaginary than real. The OSG reiterates its argument raised before the trial court that the dropping
of the childs middle name could only trigger much deeper inquiries regarding the true parentage of
petitioner. Hence, while petitioner Julian has a sister named Jasmine Wei Wang, there is no confusion

since both use the surname of their father, Wang. Even assuming that it is customary in Singapore to
drop the middle name, it has also not been shown that the use of such middle name is actually proscribed
by Singaporean law.13
We affirm the decision of the trial court. The petition should be denied.
The Court has had occasion to express the view that the State has an interest in the names borne by
individuals and entities for purposes of identification, and that a change of name is a privilege and not a
right, so that before a person can be authorized to change his name given him either in his certificate of
birth or civil registry, he must show proper or reasonable cause, or any compelling reason which may
justify such change. Otherwise, the request should be denied. 14
The touchstone for the grant of a change of name is that there be proper and reasonable cause for
which the change is sought.15 To justify a request for change of name, petitioner must show not only some
proper or compelling reason therefore but also that he will be prejudiced by the use of his true and official
name. Among the grounds for change of name which have been held valid are: (a) when the name is
ridiculous, dishonorable or extremely difficult to write or pronounce; (b) when the change results as a legal
consequence, as in legitimation; (c) when the change will avoid confusion; (d) when one has continuously
used and been known since childhood by a Filipino name, and was unaware of alien parentage; (e) a
sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without
prejudicing anybody; and (f) when the surname causes embarrassment and there is no showing that the
desired change of name was for a fraudulent purpose or that the change of name would prejudice public
interest.16
In granting or denying petitions for change of name, the question of proper and reasonable cause is left to
the sound discretion of the court. The evidence presented need only be satisfactory to the court and not
all the best evidence available. What is involved is not a mere matter of allowance or disallowance of the
request, but a judicious evaluation of the sufficiency and propriety of the justifications advanced in support
thereof, mindful of the consequent results in the event of its grant and with the sole prerogative for making
such determination being lodged in the courts.17
The petition before us is unlike other petitions for change of name, as it does not simply seek to change
the name of the minor petitioner and adopt another, but instead seeks to drop the middle name altogether.
Decided cases in this jurisdiction involving petitions for change of name usually deal with requests for
change of surname. There are only a handful of cases involving requests for change of the given
name18 and none on requests for changing or dropping of the middle name. Does the law allow one to
drop the middle name from his registered name? We have to answer in the negative.
A discussion on the legal significance of a persons name is relevant at this point. We quote, thus:
For all practical and legal purposes, a man's name is the designation by which he is known and
called in the community in which he lives and is best known. It is defined as the word or
combination of words by which a person is distinguished from other individuals and, also, as the
label or appellation which he bears for the convenience of the world at large addressing him, or in
speaking of or dealing with him. Names are used merely as one method of indicating the identity
of persons; they are descriptive of persons for identification, since, the identity is the essential
thing and it has frequently been held that, when identity is certain, a variance in, or misspelling of,
the name is immaterial.
The names of individuals usually have two parts: the given name or proper name, and the
surname or family name. The given or proper name is that which is given to the individual at birth

or baptism, to distinguish him from other individuals. The name or family name is that which
identifies the family to which he belongs and is continued from parent to child. The given name
may be freely selected by the parents for the child; but the surname to which the child is entitled
is fixed by law.
A name is said to have the following characteristics: (1) It is absolute, intended to protect the
individual from being confused with others. (2) It is obligatory in certain respects, for nobody can
be without a name. (3) It is fixed, unchangeable, or immutable, at least at the start, and may be
changed only for good cause and by judicial proceedings. (4) It is outside the commerce of man,
and, therefore, inalienable and intransmissible by act inter vivos or mortis causa. (5) It is
imprescriptible.19
This citation does not make any reference to middle names, but this does not mean that middle names
have no practical or legal significance. Middle names serve to identify the maternal lineage or filiation of a
person as well as further distinguish him from others who may have the same given name and surname
as he has.
Our laws on the use of surnames state that legitimate and legitimated children shall principally use the
surname of the father.20 The Family Code gives legitimate children the right to bear the surnames of the
father and the mother,21 while illegitimate children shall use the surname of their mother, unless their
father recognizes their filiation, in which case they may bear the fathers surname. 22
Applying these laws, an illegitimate child whose filiation is not recognized by the father bears only a given
name and his mothers surname, and does not have a middle name. The name of the unrecognized
illegitimate child therefore identifies him as such. It is only when the illegitimate child is legitimated by the
subsequent marriage of his parents or acknowledged by the father in a public document or private
handwritten instrument that he bears both his mothers surname as his middle name and his fathers
surname as his surname, reflecting his status as a legitimated child or an acknowledged illegitimate child.
Accordingly, the registration in the civil registry of the birth of such individuals requires that the middle
name be indicated in the certificate. The registered name of a legitimate, legitimated and recognized
illegitimate child thus contains a given or proper name, a middle name, and a surname.
Petitioner theorizes that it would be for his best interest to drop his middle name as this would help him to
adjust more easily to and integrate himself into Singaporean society. In support, he cites Oshita v.
Republic23 andCalderon v. Republic,24 which, however, are not apropos both.
In Oshita, the petitioner therein, a legitimate daughter of a Filipino mother, Buena Bartolome, and a
Japanese father, Kishimatsu Oshita, sought to change her name from Antonina B. Oshita to Antonina
Bartolome. The Court granted her petition based on the following considerations: she had elected
Philippine citizenship upon reaching the age of majority; her other siblings who had also elected
Philippine citizenship have been using their mothers surname; she was embarrassed to bear a Japanese
surname there still being ill feeling against the Japanese due to the last World War; and there was no
showing that the change of name was motivated by a fraudulent purpose or that it will prejudice public
interest.
In Calderon, the Court allowed petitioner Gertrudes Josefina del Prado, an illegitimate minor child acting
through her mother who filed the petition in her behalf, to change her name to Gertudes Josefina
Calderon, taking the surname of her stepfather, Romeo C. Calderon, her mothers husband. The Court
held that a petition for change of name of an infant should be granted where to do is clearly for the best
interest of the child. The Court took into consideration the opportunity provided for the minor petitioner to

eliminate the stigma of illegitimacy which she would carry if she continued to use the surname of her
illegitimate father. The Court pronounced that justice dictates that every person be allowed to avail of any
opportunity to improve his social standing as long as doing so he does not cause prejudice or injury to the
interests of the State or of other people.
Petitioner cites Alfon v. Republic,25 in arguing that although Article 174 of the Family Code gives the
legitimate child the right to use the surnames of the father and the mother, it is not mandatory such that
the child could use only one family name, even the family name of the mother. In Alfon, the petitioner
therein, the legitimate daughter of Filomeno Duterte and Estrella Alfon, sought to change her name from
Maria Estrella Veronica Primitiva Duterte (her name as registered in the Local Civil Registry) to Estrella S.
Alfon (the name she had been using since childhood, in her school records and in her voters
registration). The trial court denied her petition but this Court overturned the denial, ruling that while
Article 364 of the Civil Code states that she, as a legitimate child, should principally use the surname of
her father, there is no legal obstacle for her to choose to use the surname of herm other to which she is
entitled. In addition, the Court found that there was ample justification to grant her petition,i.e., to avoid
confusion.
Weighing petitioners reason of convenience for the change of his name against the standards set in the
cases he cites to support his contention would show that his justification is amorphous, to say the least,
and could not warrant favorable action on his petition.
The factual antecedents and unique circumstances of the cited cases are not at all analogous to the case
at bar. The instant case is clearly distinguishable from the cases of Oshita and Alfon, where the
petitioners were already of age when they filed their petitions for change of name. Being of age, they are
considered to have exercised their discretion and judgment, fully knowing the effects of their decision to
change their surnames. It can also be unmistakably observed that the reason for the grant of the petitions
for change of name in these two cases was the presence of reasonable or compelling grounds therefore.
The Court, in Oshita, recognized the tangible animosity most Filipinos had during that time against the
Japanese as a result of World War II, in addition to the fact of therein petitioners election of Philippine
citizenship. In Alfon, the Court granted the petition since the petitioner had been known since childhood
by a name different from her registered name and she had not used her registered name in her school
records and voters registration records; thus, denying the petition would only result to confusion.
Calderon, on the other hand, granted the petition for change of name filed by a mother in behalf of her
illegitimate minor child. Petitioner cites this case to buttress his argument that he does not have to reach
the age of majority to petition for change of name. However, it is manifest in Calderon that the Court, in
granting the petition for change of name, gave paramount consideration to the best interests of the minor
petitioner therein.
In the case at bar, the only reason advanced by petitioner for the dropping his middle name is
convenience. However, how such change of name would make his integration into Singaporean society
easier and convenient is not clearly established. That the continued use of his middle name would cause
confusion and difficulty does not constitute proper and reasonable cause to drop it from his registered
complete name.
In addition, petitioner is only a minor. Considering the nebulous foundation on which his petition for
change of name is based, it is best that the matter of change of his name be left to his judgment and
discretion when he reaches the age of majority.26 As he is of tender age, he may not yet understand and
appreciate the value of the change of his name and granting of the same at this point may just prejudice
him in his rights under our laws.

WHEREFORE, in view of the foregoing, the Petition for Review on Certiorari is DENIED.
SO ORDERED.

G.R. No. 148311. March 31, 2005

IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA
HONORATO B. CATINDIG, petitioner.
DECISION
SANDOVAL-GUTIERREZ, J.:
May an illegitimate child, upon adoption by her natural father, use the surname of her natural
mother as her middle name? This is the issue raised in the instant case.
The facts are undisputed.
On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition1 to adopt his minor
illegitimate childStephanie Nathy Astorga Garcia. He alleged therein, among others, that Stephanie was
born on June 26, 1994;2 that her mother is Gemma Astorga Garcia; that Stephanie has been using her
mothers middle name and surname; and that he is now a widower and qualified to be her adopting
parent. He prayed that Stephanies middle name Astorga be changed to "Garcia," her mothers surname,
and that her surname "Garcia" be changed to "Catindig," his surname.
On March 23, 2001,3 the trial court rendered the assailed Decision granting the adoption, thus:
"After a careful consideration of the evidence presented by the petitioner, and in the absence of
any opposition to the petition, this Court finds that the petitioner possesses all the qualifications
and none of the disqualification provided for by law as an adoptive parent, and that as such he is
qualified to maintain, care for and educate the child to be adopted; that the grant of this petition
would redound to the best interest and welfare of the minor Stephanie Nathy Astorga Garcia. The
Court further holds that the petitioners care and custody of the child since her birth up to the
present constitute more than enough compliance with the requirement of Article 35 of Presidential
Decree No. 603.
WHEREFORE, finding the petition to be meritorious, the same is GRANTED. Henceforth,
Stephanie Nathy Astorga Garcia is hereby freed from all obligations of obedience and
maintenance with respect to her natural mother, and for civil purposes, shall henceforth be the
petitioners legitimate child and legal heir. Pursuant to Article 189 of the Family Code of the
Philippines, the minor shall be known as STEPHANIE NATHY CATINDIG.

Upon finality of this Decision, let the same be entered in the Local Civil Registrar concerned
pursuant to Rule 99 of the Rules of Court.
Let copy of this Decision be furnished the National Statistics Office for record purposes.
SO ORDERED."4
On April 20, 2001, petitioner filed a motion for clarification and/or reconsideration 5 praying that Stephanie
should be allowed to use the surname of her natural mother (GARCIA) as her middle name.
On May 28, 2001,6 the trial court denied petitioners motion for reconsideration holding that there is no law
or jurisprudence allowing an adopted child to use the surname of his biological mother as his middle
name.
Hence, the present petition raising the issue of whether an illegitimate child may use the surname of her
mother as her middle name when she is subsequently adopted by her natural father.
Petitioner submits that the trial court erred in depriving Stephanie of a middle name as a consequence of
adoption because: (1) there is no law prohibiting an adopted child from having a middle name in case
there is only one adopting parent; (2) it is customary for every Filipino to have as middle name the
surname of the mother; (3) the middle name or initial is a part of the name of a person; (4) adoption is for
the benefit and best interest of the adopted child, hence, her right to bear a proper name should not be
violated; (5) permitting Stephanie to use the middle name "Garcia" (her mothers surname) avoids the
stigma of her illegitimacy; and; (6) her continued use of "Garcia" as her middle name is not opposed by
either the Catindig or Garcia families.
The Republic, through the Office of the Solicitor General (OSG), agrees with petitioner that Stephanie
should be permitted to use, as her middle name, the surname of her natural mother for the following
reasons:
First, it is necessary to preserve and maintain Stephanies filiation with her natural mother
because under Article 189 of the Family Code, she remains to be an intestate heir of the latter.
Thus, to prevent any confusion and needless hardship in the future, her relationship or proof of
that relationship with her natural mother should be maintained.
Second, there is no law expressly prohibiting Stephanie to use the surname of her natural mother
as her middle name. What the law does not prohibit, it allows.
Last, it is customary for every Filipino to have a middle name, which is ordinarily the surname of
the mother. This custom has been recognized by the Civil Code and Family Code. In fact, the
Family Law Committees agreed that"the initial or surname of the mother should immediately
precede the surname of the father so that the second name, if any, will be before the surname of
the mother."7
We find merit in the petition.
Use Of Surname Is Fixed By Law
For all practical and legal purposes, a man's name is the designation by which he is known and called in
the community in which he lives and is best known. It is defined as the word or combination of words by

which a person is distinguished from other individuals and, also, as the label or appellation which he
bears for the convenience of the world at large addressing him, or in speaking of or dealing with him. 8 It is
both of personal as well as public interest that every person must have a name.
The name of an individual has two parts: (1) the given or proper name and (2) the surname or family
name. The given or proper name is that which is given to the individual at birth or at baptism, to
distinguish him from other individuals. The surname or family name is that which identifies the family to
which he belongs and is continued from parent to child. The given name may be freely selected by the
parents for the child, but the surname to which the child is entitled is fixed by law.9
Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which regulate the use of
surname10 of an individual whatever may be his status in life, i.e., whether he may be legitimate or
illegitimate, an adopted child, a married woman or a previously married woman, or a widow, thus:
"Art. 364. Legitimate and legitimated children shall principally use the surname of the father.
Art. 365. An adopted child shall bear the surname of the adopter.
xxx
Art. 369. Children conceived before the decree annulling a voidable marriage shall principally use
the surname of the father.
Art. 370. A married woman may use:
(1) Her maiden first name and surname and add her husband's surname, or
(2) Her maiden first name and her husband's surname or
(3) Her husband's full name, but prefixing a word indicating that she is his wife, such as
Mrs.
Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her
maiden name and surname. If she is the innocent spouse, she may resume her maiden name
and surname. However, she may choose to continue employing her former husband's surname,
unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to another person.
Art. 372. When legal separation has been granted, the wife shall continue using her name
and surnameemployed before the legal separation.
Art. 373. A widow may use the deceased husband's surname as though he were still living, in
accordance with Article 370.
Art. 374. In case of identity of names and surnames, the younger person shall be obliged to use
such additional name or surname as will avoid confusion.

Art. 375. In case of identity of names and surnames between ascendants and descendants, the
word Junior can be used only by a son. Grandsons and other direct male descendants shall
either:
(1) Add a middle name or the mother's surname,
(2) Add the Roman numerals II, III, and so on.
x x x"
Law Is Silent As To The Use Of
Middle Name
As correctly submitted by both parties, there is no law regulating the use of a middle name. Even Article
17611 of the Family Code, as amended by Republic Act No. 9255, otherwise known as "An Act Allowing
Illegitimate Children To Use The Surname Of Their Father," is silent as to what middle name a child may
use.
The middle name or the mothers surname is only considered in Article 375(1), quoted above, in case
there is identity of names and surnames between ascendants and descendants, in which case, the middle
name or the mothers surname shall be added.
Notably, the law is likewise silent as to what middle name an adoptee may use. Article 365 of the
Civil Code merely provides that "an adopted child shall bear the surname of the adopter." Also, Article 189
of the Family Code, enumerating the legal effects of adoption, is likewise silent on the matter, thus:
"(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both
shall acquire the reciprocal rights and obligations arising from the relationship of parent and child,
including the right of the adopted to use the surname of the adopters;
x x x"
However, as correctly pointed out by the OSG, the members of the Civil Code and Family Law
Committees that drafted the Family Code recognized the Filipino custom of adding the surname of
the childs mother as his middle name. In the Minutes of the Joint Meeting of the Civil Code and Family
Law Committees, the members approved the suggestion that the initial or surname of the mother
should immediately precede the surname of the father, thus
"Justice Caguioa commented that there is a difference between the use by the wife of the surname and
that of the child because the fathers surname indicates the family to which he belongs, for which
reason he would insist on the use of the fathers surname by the child but that, if he wants to, the
child may also use the surname of the mother.
Justice Puno posed the question: If the child chooses to use the surname of the mother, how will his
name be written? Justice Caguioa replied that it is up to him but that his point is that it should be
mandatory that the child uses the surname of the father and permissive in the case of the
surname of the mother.
Prof. Baviera remarked that Justice Caguioas point is covered by the present Article 364, which reads:

Legitimate and legitimated children shall principally use the surname of the father.
Justice Puno pointed out that many names change through no choice of the person himself precisely
because of this misunderstanding. He then cited the following example: Alfonso Ponce Enriles correct
surname is Ponce since the mothers surname is Enrile but everybody calls him Atty. Enrile. Justice Jose
Gutierrez Davids family name is Gutierrez and his mothers surname is David but they all call him Justice
David.
Justice Caguioa suggested that the proposed Article (12) be modified to the effect that it shall be
mandatory on the child to use the surname of the father but he may use the surname of the
mother by way of an initial or a middle name. Prof. Balane stated that they take note of this for
inclusion in the Chapter on Use of Surnames since in the proposed Article (10) they are just enumerating
the rights of legitimate children so that the details can be covered in the appropriate chapter.
xxx
Justice Puno remarked that there is logic in the simplification suggested by Justice Caguioa that the
surname of the father should always be last because there are so many traditions like the American
tradition where they like to use their second given name and the Latin tradition, which is also followed by
the Chinese wherein they even include the Clan name.
xxx
Justice Puno suggested that they agree in principle that in the Chapter on the Use of Surnames,
they should say that initial or surname of the mother should immediately precede the surname of
the father so that the second name, if any, will be before the surname of the mother. Prof. Balane
added that this is really the Filipino way. The Committee approved the suggestion."12 (Emphasis
supplied)
In the case of an adopted child, the law provides that "the adopted shall bear the surname of the
adopters."13Again, it is silent whether he can use a middle name. What it only expressly allows, as a
matter of right and obligation, is for the adoptee to bear the surname of the adopter, upon issuance of the
decree of adoption.14
The Underlying Intent of
Adoption Is In Favor of the
Adopted Child
Adoption is defined as the process of making a child, whether related or not to the adopter, possess in
general, the rights accorded to a legitimate child.15 It is a juridical act, a proceeding in rem which creates
between two persons a relationship similar to that which results from legitimate paternity and
filiation.16 The modern trend is to consider adoption not merely as an act to establish a relationship of
paternity and filiation, but also as an act which endows the child with a legitimate status.17 This was,
indeed, confirmed in 1989, when the Philippines, as a State Party to the Convention of the Rights of
the Child initiated by the United Nations, accepted the principle that adoption is impressed with
social and moral responsibility, and that its underlying intent is geared to favor the adopted
child.18 Republic Act No. 8552, otherwise known as the "Domestic Adoption Act of 1998,"19 secures these
rights and privileges for the adopted.20

One of the effects of adoption is that the adopted is deemed to be a legitimate child of the adopter for all
intents and purposes pursuant to Article 18921 of the Family Code and Section 1722 Article V of RA 8552.23
Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the
rights provided by law to a legitimate child without discrimination of any kind, including the right
to bear the surname of her father and her mother, as discussed above. This is consistent with the
intention of the members of the Civil Code and Family Law Committees as earlier discussed. In fact, it is a
Filipino custom that the initial or surname of the mother should immediately precede the surname of the
father.
Additionally, as aptly stated by both parties, Stephanies continued use of her mothers surname (Garcia)
as her middle name will maintain her maternal lineage. It is to be noted that Article 189(3) of the Family
Code and Section 1824, Article V of RA 8552 (law on adoption) provide that the adoptee remains an
intestate heir of his/her biological parent. Hence, Stephanie can well assert or claim her hereditary rights
from her natural mother in the future.
Moreover, records show that Stephanie and her mother are living together in the house built by petitioner
for them at 390 Tumana, San Jose, Baliuag, Bulacan. Petitioner provides for all their needs. Stephanie is
closely attached to both her mother and father. She calls them "Mama" and "Papa". Indeed, they are one
normal happy family. Hence, to allow Stephanie to use her mothers surname as her middle name will not
only sustain her continued loving relationship with her mother but will also eliminate the stigma of her
illegitimacy.
Liberal Construction of
Adoption Statutes In Favor Of
Adoption
It is a settled rule that adoption statutes, being humane and salutary, should be liberally construed to carry
out the beneficent purposes of adoption.25 The interests and welfare of the adopted child are of primary
and paramount consideration,26 hence, every reasonable intendment should be sustained to promote and
fulfill these noble and compassionate objectives of the law.27
Lastly, Art. 10 of the New Civil Code provides that:
"In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking
body intended right and justice to prevail."
This provision, according to the Code Commission, "is necessary so that it may tip the scales in favor of
right and justice when the law is doubtful or obscure. It will strengthen the determination of the courts to
avoid an injustice which may apparently be authorized by some way of interpreting the law." 28
Hence, since there is no law prohibiting an illegitimate child adopted by her natural father, like
Stephanie, to use, as middle name her mothers surname, we find no reason why she should not be
allowed to do so.
WHEREFORE, the petition is GRANTED. The assailed Decision is partly MODIFIED in the sense that
Stephanie should be allowed to use her mothers surname "GARCIA" as her middle name.

Let the corresponding entry of her correct and complete name be entered in the decree of adoption.
SO ORDERED.

G.R. No. 157043

February 2, 2007
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
TRINIDAD R.A. CAPOTE, Respondent.
DECISION

CORONA, J.:
This petition for review on certiorari1 seeks to set aside the Court of Appeals (CA) decision2 dated January
13, 2003 in CA-G.R. CV No. 66128, which affirmed the decision of the Regional Trial Court (RTC), Branch
23 of San Juan, Southern Leyte dated September 14, 1999 granting a petition for change of name.
Respondent Trinidad R. A. Capote filed a petition for change of name of her ward from Giovanni N.
Gallamaso toGiovanni Nadores on September 9, 1998. In Special Proceeding No. R-481, 3 Capote as
Giovannis guardian ad litem averred:
xxx xxx xxx
1. [Respondent] is a Filipino citizen, of legal age, married, while minor GIOVANNI N.
GALLAMASO, is also a Filipino citizen, sixteen (16) years old and both are residents of San Juan,
Southern Leyte where they can be served with summons and other court processes;
2. [Respondent] was appointed guardian [ad litem] of minor Giovanni N. Gallamaso by virtue of a
court order in Special [Proc.] No. R-459, dated [August 18, 1998] xxx xxx authorizing her to file in
court a petition for change of name of said minor in accordance with the desire of his mother [who
is residing and working abroad];
3. Both [respondent] and minor have permanently resided in San Juan, Southern Leyte,
Philippines for more than fifteen (15) years prior to the filing of this instant petition, the former
since 1970 while the latter since his birth [in 1982];
4. The minor was left under the care of [respondent] since he was yet nine (9) years old up to the
present;
5. Minor GIOVANNI N. GALLAMASO is the illegitimate natural child of Corazon P. Nadores and
Diosdado Gallamaso. [He] was born on July 9, 1982 [,] prior to the effectivity of the New Family
Code and as such, his mother used the surname of the natural father despite the absence of
marriage between them; and [Giovanni] has been known by that name since birth [as per his birth
certificate registered at the Local Civil Register of San Juan, Southern Leyte];

6. The father, Diosdado Gallamaso, from the time [Giovanni] was born and up to the present,
failed to take up his responsibilities [to him] on matters of financial, physical, emotional and
spiritual concerns. [Giovannis pleas] for attention along that line [fell] on deaf ears xxx xxx xxx;
7. [Giovanni] is now fully aware of how he stands with his father and he desires to have his
surname changed to that of his mothers surname;
8. [Giovannis] mother might eventually petition [him] to join her in the United States and [his]
continued use of the surname Gallamaso, the surname of his natural father, may complicate [his]
status as natural child; and
9. The change of name [from] GIOVANNI N. GALLAMASO to GIOVANNI NADORES will be for
the benefit of the minor.
xxx xxx xxx4
Respondent prayed for an order directing the local civil registrar to effect the change of name on
Giovannis birth certificate. Having found respondents petition sufficient in form and substance, the trial
court gave due course to the petition.5 Publication of the petition in a newspaper of general circulation in
the province of Southern Leyte once a week for three consecutive weeks was likewise ordered. 6 The trial
court also directed that the local civil registrar be notified and that the Office of the Solicitor General
(OSG) be sent a copy of the petition and order.7
Since there was no opposition to the petition, respondent moved for leave of court to present her
evidence ex parte before a court-appointed commissioner. The OSG, acting through the Provincial
Prosecutor, did not object; hence, the lower court granted the motion.
After the reception of evidence, the trial court rendered a decision ordering the change of name from
Giovanni N. Gallamaso to Giovanni Nadores.8
From this decision, petitioner Republic of the Philippines, through the OSG, filed an appeal with a lone
assignment of error: the court a quo erred in granting the petition in a summary proceeding.
Ruling that the proceedings were sufficiently adversarial in nature as required, the CA affirmed the RTC
decision ordering the change of name.9
In this petition, the Republic contends that the CA erred in affirming the trial courts decision which
granted the petition for change of name despite the non-joinder of indispensable parties. 10 Petitioner
cites Republic of the Philippines v. Labrador11 and claims that the purported parents and all other persons
who may be adversely affected by the childs change of name should have been made respondents to
make the proceeding adversarial.12
We deny the petition.
"The subject of rights must have a fixed symbol for individualization which serves to distinguish him from
all others; this symbol is his name."13 Understandably, therefore, no person can change his name or
surname without judicial authority.14 This is a reasonable requirement for those seeking such change
because a persons name necessarily affects his identity, interests and interactions. The State must be
involved in the process and decision to change the name of any of its citizens.

The Rules of Court provides the requirements and procedure for change of name. Here, the appropriate
remedy is covered by Rule 103,15 a separate and distinct proceeding from Rule 108 on mere cancellation
and correction of entries in the civil registry (usually dealing only with innocuous or clerical errors
thereon).16
The issue of non-joinder of alleged indispensable parties in the action before the court a quo is
intertwined with the nature of the proceedings there. The point is whether the proceedings were
sufficiently adversarial.
Summary proceedings do not extensively address the issues of a case since the reason for their conduct
is expediency. This, according to petitioner, is not sufficient to deal with substantial or contentious issues
allegedly resulting from a change of name, meaning, legitimacy as well as successional rights. 17 Such
issues are ventilated only in adversarial proceedings wherein all interested parties are impleaded and due
process is observed.18
When Giovanni was born in 1982 (prior to the enactment and effectivity of the Family Code of the
Philippines),19the pertinent provision of the Civil Code then as regards his use of a surname, read:
Art. 366. A natural child acknowledged by both parents shall principally use the surname of the
father. If recognized by only one of the parents, a natural child shall employ the surname of
the recognizing parent. (emphasis ours)
Based on this provision, Giovanni should have carried his mothers surname from birth. The records do
not reveal any act or intention on the part of Giovannis putative father to actually recognize him.
Meanwhile, according to the Family Code which repealed, among others, Article 366 of the Civil Code:
Art. 176. Illegitimate children shall use the surname and shall be under the parental
authority of their mother, and shall be entitled to support in conformity with this Code. xxx xxx
xxx (emphasis ours)
Our ruling in the recent case of In Re: Petition for Change of Name and/or Correction/Cancellation of
Entry in Civil Registry of Julian Lin Carulasan Wang20 is enlightening:
Our laws on the use of surnames state that legitimate and legitimated children shall principally
use the surname of the father. The Family Code gives legitimate children the right to bear the
surnames of the father and the mother, while illegitimate children shall use the surname of their
mother, unless their father recognizes their filiation, in which case they may bear the fathers
surname.
Applying these laws, an illegitimate child whose filiation is not recognized by the father
bears only a given name and his mother surname, and does not have a middle name. The
name of the unrecognized illegitimate child therefore identifies him as such. It is only when
the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by
the father in a public document or private handwritten instrument that he bears both his mothers
surname as his middle name and his fathers surname as his surname, reflecting his status as a
legitimated child or an acknowledged child.1awphi1.net21
The foregoing discussion establishes the significant connection of a persons name to his identity, his
status in relation to his parents and his successional rights as a legitimate or illegitimate child. For sure,
these matters should not be taken lightly as to deprive those who may, in any way, be affected by the right
to present evidence in favor of or against such change.

The law and facts obtaining here favor Giovannis petition. Giovanni availed of the proper remedy, a
petition for change of name under Rule 103 of the Rules of Court, and complied with all the procedural
requirements. After hearing, the trial court found (and the appellate court affirmed) that the evidence
presented during the hearing of Giovannis petition sufficiently established that, under Art. 176 of the Civil
Code, Giovanni is entitled to change his name as he was never recognized by his father while his mother
has always recognized him as her child. A change of name will erase the impression that he was ever
recognized by his father. It is also to his best interest as it will facilitate his mothers intended petition to
have him join her in the United States. This Court will not stand in the way of the reunification of mother
and son.
Moreover, it is noteworthy that the cases cited by petitioner 22 in support of its position deal with
cancellation or correction of entries in the civil registry, a proceeding separate and distinct from the
special proceedings for change of name. Those cases deal with the application and interpretation of Rule
108 of the Rules of Court while this case was correctly filed under Rule 103. Thus, the cases cited by
petitioner are irrelevant and have no bearing on respondents case. While the OSG is correct in its stance
that the proceedings for change of name should be adversarial, the OSG cannot void the proceedings in
the trial court on account of its own failure to participate therein. As the CA correctly ruled:
The OSG is correct in stating that a petition for change of name must be heard in an adversarial
proceeding. Unlike petitions for the cancellation or correction of clerical errors in entries in the civil
registry under Rule 108 of the Rules of Court, a petition for change of name under Rule 103
cannot be decided through a summary proceeding. There is no doubt that this petition does not
fall under Rule 108 for it is not alleged that the entry in the civil registry suffers from clerical or
typographical errors. The relief sought clearly goes beyond correcting erroneous entries in the
civil registry, although by granting the petition, the result is the same in that a corresponding
change in the entry is also required to reflect the change in name. In this regard, [appellee]
Capote complied with the requirement for an adversarial proceeding by posting in a
newspaper of general circulation notice of the filing of the petition. The lower court also
furnished the OSG a copy thereof. Despite the notice, no one came forward to oppose the
petition including the OSG. The fact that no one opposed the petition did not deprive the
court of its jurisdiction to hear the same nor does it make the proceeding less adversarial
in nature. The lower court is still expected to exercise its judgment to determine whether the
petition is meritorious or not and not merely accept as true the arguments propounded.
Considering that the OSG neither opposed the petition nor the motion to present its evidence ex
parte when it had the opportunity to do so, it cannot now complain that the proceedings in the
lower court were not adversarial enough.23 (emphasis supplied)
A proceeding is adversarial where the party seeking relief has given legal warning to the other party and
afforded the latter an opportunity to contest it.24 Respondent gave notice of the petition through
publication as required by the rules.25 With this, all interested parties were deemed notified and the whole
world considered bound by the judgment therein. In addition, the trial court gave due notice to the OSG by
serving a copy of the petition on it. Thus, all the requirements to make a proceeding adversarial were
satisfied when all interested parties, including petitioner as represented by the OSG, were afforded the
opportunity to contest the petition.
WHEREFORE, the petition is hereby DENIED and the January 13, 2003 decision of the Court of Appeals
in CA-G.R. CV No. 66128 AFFIRMED.
SO ORDERED.

March 5, 2010
MARIA VIRGINIA V. REMO, Petitioner,
vs.
THE HONORABLE SECRETARY OF FOREIGN AFFAIRS, Respondent.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review1 of the 27 May 2005 Decision2 and 2 August 2005 Resolution3 of
the Court of Appeals in CA-G.R. SP No. 87710. The Court of Appeals affirmed the decision of the Office
of the President, which in turn affirmed the decision of the Secretary of Foreign Affairs denying petitioners
request to revert to the use of her maiden name in her replacement passport.
The Facts
Petitioner Maria Virginia V. Remo is a married Filipino citizen whose Philippine passport was then expiring
on 27 October 2000. Petitioner being married to Francisco R. Rallonza, the following entries appear in her
passport: "Rallonza" as her surname, "Maria Virginia" as her given name, and "Remo" as her middle
name. Prior to the expiry of the validity of her passport, petitioner, whose marriage still subsists, applied
for the renewal of her passport with the Department of Foreign Affairs (DFA) office in Chicago, Illinois,
U.S.A., with a request to revert to her maiden name and surname in the replacement passport.
Petitioners request having been denied, Atty. Manuel Joseph R. Bretana III, representing petitioner, wrote
then Secretary of Foreign Affairs Domingo Siason expressing a similar request.
On 28 August 2000, the DFA, through Assistant Secretary Belen F. Anota, denied the request, stating
thus:
This has reference to your letter dated 17 August 2000 regarding one Ms. Maria Virginia V. Remo
who is applying for renewal of her passport using her maiden name.
This Office is cognizant of the provision in the law that it is not obligatory for a married woman to
use her husbands name. Use of maiden name is allowed in passport application only if the
married name has not been used in previous application. The Implementing Rules and
Regulations for Philippine Passport Act of 1996 clearly defines the conditions when a woman
applicant may revert to her maiden name, that is, only in cases of annulment of marriage, divorce
and death of the husband. Ms. Remos case does not meet any of these conditions. 4 (Emphasis
supplied)
Petitioners motion for reconsideration of the above-letter resolution was denied in a letter dated 13
October 2000.5
On 15 November 2000, petitioner filed an appeal with the Office of the President.

On 27 July 2004, the Office of the President dismissed the appeal 6 and ruled that Section 5(d) of Republic
Act No. 8239 (RA 8239) or the Philippine Passport Act of 1996 "offers no leeway for any other
interpretation than that only in case of divorce, annulment, or declaration [of nullity] of marriage may a
married woman revert to her maiden name for passport purposes." The Office of the President further
held that in case of conflict between a general and special law, the latter will control the former regardless
of the respective dates of passage. Since the Civil Code is a general law, it should yield to RA 8239.
On 28 October 2004, the Office of the President denied the motion for reconsideration. 7
Petitioner filed with the Court of Appeals a petition for review under Rule 43 of the Rules of Civil
Procedure.
In its Decision of 27 May 2005, the Court of Appeals denied the petition and affirmed the ruling of the
Office of the President. The dispositive portion of the Court of Appeals decision reads:
WHEREFORE, premises considered, the petition is DENIED, and the resolution dated July 27,
2004, and the order dated October 28, 2004 of the Office of the President in O.P. Case No. 001A-9344 are hereby AFFIRMED.
SO ORDERED.8
Petitioner moved for reconsideration which the Court of Appeals denied in its Resolution dated 2 August
2005.
Hence, this petition.
The Court of Appeals Ruling
The Court of Appeals found no conflict between Article 370 of the Civil Code 9 and Section 5(d) of RA
8239.10 The Court of Appeals held that for passport application and issuance purposes, RA 8239 limits the
instances when a married woman applicant may exercise the option to revert to the use of her maiden
name such as in a case of a divorce decree, annulment or declaration of nullity of marriage. Since there
was no showing that petitioner's marriage to Francisco Rallonza has been annulled, declared void or a
divorce decree has been granted to them, petitioner cannot simply revert to her maiden name in the
replacement passport after she had adopted her husbands surname in her old passport. Hence,
according to the Court of Appeals, respondent was justified in refusing the request of petitioner to revert to
her maiden name in the replacement passport.1avvphi1
The Issue
The sole issue in this case is whether petitioner, who originally used her husbands surname in her
expired passport, can revert to the use of her maiden name in the replacement passport, despite the
subsistence of her marriage.
The Ruling of the Court
The petition lacks merit.
Title XIII of the Civil Code governs the use of surnames. In the case of a married woman, Article 370 of
the Civil Code provides:

ART. 370. A married woman may use:

(1) Her maiden first name and surname and add her husbands surname, or
(2) Her maiden first name and her husband's surname, or
(3) Her husbands full name, but prefixing a word indicating that she is his wife, such as
"Mrs."
We agree with petitioner that the use of the word "may" in the above provision indicates that the use of
the husbands surname by the wife is permissive rather than obligatory. This has been settled in the case
of Yasin v. Honorable Judge Sharia District Court.11
In Yasin,12 petitioner therein filed with the Sharia District Court a "Petition to resume the use of maiden
name" in view of the dissolution of her marriage by divorce under the Code of Muslim Personal Laws of
the Philippines, and after marriage of her former husband to another woman. In ruling in favor of petitioner
therein, the Court explained that:
When a woman marries a man, she need not apply and/or seek judicial authority to use her
husbands name by prefixing the word "Mrs." before her husbands full name or by adding her
husbands surname to her maiden first name. The law grants her such right (Art. 370, Civil Code).
Similarly, when the marriage ties or vinculum no longer exists as in the case of death of the
husband or divorce as authorized by the Muslim Code, the widow or divorcee need not seek
judicial confirmation of the change in her civil status in order to revert to her maiden name as use
of her former husbands is optional and not obligatory for her (Tolentino, Civil Code, p. 725, 1983
ed.; Art. 373, Civil Code). When petitioner married her husband, she did not change her but only
her civil status. Neither was she required to secure judicial authority to use the surname of her
husband after the marriage as no law requires it. (Emphasis supplied)
Clearly, a married woman has an option, but not a duty, to use the surname of the husband in any of the
ways provided by Article 370 of the Civil Code.13 She is therefore allowed to use not only any of the three
names provided in Article 370, but also her maiden name upon marriage. She is not prohibited from
continuously using her maiden name once she is married because when a woman marries, she does not
change her name but only her civil status. Further, this interpretation is in consonance with the principle
that surnames indicate descent.14
In the present case, petitioner, whose marriage is still subsisting and who opted to use her husbands
surname in her old passport, requested to resume her maiden name in the replacement passport arguing
that no law prohibits her from using her maiden name. Petitioner cites Yasin as the applicable precedent.
However, Yasin is not squarely in point with this case. Unlike in Yasin, which involved a Muslim divorcee
whose former husband is already married to another woman, petitioners marriage remains subsisting.
Another point, Yasin did not involve a request to resume ones maiden name in a replacement passport,
but a petition to resume ones maiden name in view of the dissolution of ones marriage.
The law governing passport issuance is RA 8239 and the applicable provision in this case is Section 5(d),
which states:
Sec. 5. Requirements for the Issuance of Passport. No passport shall be issued to an
applicant unless the Secretary or his duly authorized representative is satisfied that the applicant
is a Filipino citizen who has complied with the following requirements: x x x

(d) In case of a woman who is married, separated, divorced or widowed or whose marriage has
been annulled or declared by court as void, a copy of the certificate of marriage, court decree of
separation, divorce or annulment or certificate of death of the deceased spouse duly issued and
authenticated by the Office of the Civil Registrar General: Provided, That in case of a divorce
decree, annulment or declaration of marriage as void, the woman applicant may revert to the use
of her maiden name: Provided, further, That such divorce is recognized under existing laws of the
Philippines; x x x (Emphasis supplied)
The Office of the Solicitor General (OSG), on behalf of the Secretary of Foreign Affairs, argues that the
highlighted proviso in Section 5(d) of RA 8239 "limits the instances when a married woman may be
allowed to revert to the use of her maiden name in her passport." These instances are death of husband,
divorce decree, annulment or nullity of marriage. Significantly, Section 1, Article 12 of the Implementing
Rules and Regulations of RA 8239 provides:
The passport can be amended only in the following cases:
a) Amendment of womans name due to marriage;
b) Amendment of womans name due to death of spouse, annulment of marriage or
divorce initiated by a foreign spouse; or
c) Change of surname of a child who is legitimated by virtue of a subsequent marriage of
his parents.
Since petitioners marriage to her husband subsists, placing her case outside of the purview of Section
5(d) of RA 8239 (as to the instances when a married woman may revert to the use of her maiden name),
she may not resume her maiden name in the replacement passport. 15 This prohibition, according to
petitioner, conflicts with and, thus, operates as an implied repeal of Article 370 of the Civil Code.
Petitioner is mistaken. The conflict between Article 370 of the Civil Code and Section 5(d) of RA 8239 is
more imagined than real. RA 8239, including its implementing rules and regulations, does not prohibit a
married woman from using her maiden name in her passport. In fact, in recognition of this right, the DFA
allows a married woman who applies for a passport for the first time to use her maiden name. Such an
applicant is not required to adopt her husband's surname. 16
In the case of renewal of passport, a married woman may either adopt her husbands surname or
continuously use her maiden name. If she chooses to adopt her husbands surname in her new passport,
the DFA additionally requires the submission of an authenticated copy of the marriage certificate.
Otherwise, if she prefers to continue using her maiden name, she may still do so. The DFA will not
prohibit her from continuously using her maiden name. 17
However, once a married woman opted to adopt her husbands surname in her passport, she may not
revert to the use of her maiden name, except in the cases enumerated in Section 5(d) of RA 8239. These
instances are: (1) death of husband, (2) divorce, (3) annulment, or (4) nullity of marriage. Since
petitioners marriage to her husband subsists, she may not resume her maiden name in the replacement
passport. Otherwise stated, a married woman's reversion to the use of her maiden name must be based
only on the severance of the marriage.
Even assuming RA 8239 conflicts with the Civil Code, the provisions of RA 8239 which is a special law
specifically dealing with passport issuance must prevail over the provisions of Title XIII of the Civil Code

which is the general law on the use of surnames. A basic tenet in statutory construction is that a special
law prevails over a general law,18 thus:
[I]t is a familiar rule of statutory construction that to the extent of any necessary repugnancy
between a general and a special law or provision, the latter will control the former without regard
to the respective dates of passage.19
Moreover, petitioners theory of implied repeal must fail. Well-entrenched is the rule that an implied repeal
is disfavored. T he apparently conflicting provisions of a law or two laws should be harmonized as much
as possible, so that each shall be effective.20 For a law to operate to repeal another law, the two laws
must actually be inconsistent. The former must be so repugnant as to be irreconcilable with the latter
act.21 This petitioner failed to establish.1avvphi1
The Court notes that petitioner would not have encountered any problems in the replacement passport
had she opted to continuously and consistently use her maiden name from the moment she was married
and from the time she first applied for a Philippine passport. However, petitioner consciously chose to use
her husbands surname before, in her previous passport application, and now desires to resume her
maiden name. If we allow petitioners present request, definitely nothing prevents her in the future from
requesting to revert to the use of her husbands surname. Such unjustified changes in one's name and
identity in a passport, which is considered superior to all other official documents, 22 cannot be
countenanced. Otherwise, undue confusion and inconsistency in the records of passport holders will
arise. Thus, for passport issuance purposes, a married woman, such as petitioner, whose marriage
subsists, may not change her family name at will.
The acquisition of a Philippine passport is a privilege. The law recognizes the passport applicants
constitutional right to travel. However, the State is also mandated to protect and maintain the integrity and
credibility of the passport and travel documents proceeding from it 23 as a Philippine passport remains
at all times the property of the Government. The holder is merely a possessor of the passport as long
as it is valid and the same may not be surrendered to any person or entity other than the government or
its representative.24
As the OSG correctly pointed out:
[T]he issuance of passports is impressed with public interest. A passport is an official document of
identity and nationality issued to a person intending to travel or sojourn in foreign countries. It is
issued by the Philippine government to its citizens requesting other governments to allow its
holder to pass safely and freely, and in case of need, to give him/her aid and protection. x x x
Viewed in the light of the foregoing, it is within respondents competence to regulate any amendments
intended to be made therein, including the denial of unreasonable and whimsical requests for
amendments such as in the instant case.25
WHEREFORE, we DENY the petition. We AFFIRM the 27 May 2005 Decision and 2 August 2005
Resolution of the Court of Appeals in CA-G.R. SP No. 87710.
SO ORDERED.

CIVIL REGISTER

G.R. No. 174689

October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.
DECISION

CORONA, J.:
When God created man, He made him in the likeness of God; He created them male and female.
(Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from
inside the bamboo. "Oh North Wind! North Wind! Please let us out!," the voices said. She pecked
the reed once, then twice. All of a sudden, the bamboo cracked and slit open. Out came two
human beings; one was a male and the other was a female. Amihan named the man "Malakas"
(Strong) and the woman "Maganda" (Beautiful). (The Legend of Malakas and Maganda)
When is a man a man and when is a woman a woman? In particular, does the law recognize the changes
made by a physician using scalpel, drugs and counseling with regard to a persons sex? May a person
successfully petition for a change of name and sex appearing in the birth certificate to reflect the result of
a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his
first name and sex in his birth certificate in the Regional Trial Court of Manila, Branch 8. The petition,
docketed as SP Case No. 02-105207, impleaded the civil registrar of Manila as respondent.
Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines
Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as "Rommel Jacinto Dantes
Silverio" in his certificate of live birth (birth certificate). His sex was registered as "male."
He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as a
female" and that he had always identified himself with girls since childhood. 1 Feeling trapped in a mans
body, he consulted several doctors in the United States. He underwent psychological examination,
hormone treatment and breast augmentation. His attempts to transform himself to a "woman" culminated
on January 27, 2001 when he underwent sex reassignment surgery 2 in Bangkok, Thailand. He was
thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the
Philippines, who issued a medical certificate attesting that he (petitioner) had in fact undergone the
procedure.
From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to have
his name in his birth certificate changed from "Rommel Jacinto" to "Mely," and his sex from "male" to
"female."
An order setting the case for initial hearing was published in the Peoples Journal Tonight, a newspaper of
general circulation in Metro Manila, for three consecutive weeks. 3 Copies of the order were sent to the
Office of the Solicitor General (OSG) and the civil registrar of Manila.

On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the
petition was made.
During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American
fianc, Richard P. Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision 4 in favor of petitioner. Its relevant portions read:
Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or
for any unlawful motive but solely for the purpose of making his birth records compatible with his
present sex.
The sole issue here is whether or not petitioner is entitled to the relief asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance with the
principles of justice and equity. With his sexual [re-assignment], petitioner, who has always felt,
thought and acted like a woman, now possesses the physique of a female. Petitioners misfortune
to be trapped in a mans body is not his own doing and should not be in any way taken against
him.
Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or the
community in granting the petition. On the contrary, granting the petition would bring the muchawaited happiness on the part of the petitioner and her [fianc] and the realization of their
dreams.
Finally, no evidence was presented to show any cause or ground to deny the present petition
despite due notice and publication thereof. Even the State, through the [OSG] has not seen fit to
interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil
Registrar of Manila to change the entries appearing in the Certificate of Birth of [p]etitioner,
specifically for petitioners first name from "Rommel Jacinto" to MELY and petitioners gender
from "Male" to FEMALE. 5
On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for certiorari
in the Court of Appeals.6 It alleged that there is no law allowing the change of entries in the birth certificate
by reason of sex alteration.
On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It ruled that
the trial courts decision lacked legal basis. There is no law allowing the change of either name or sex in
the certificate of birth on the ground of sex reassignment through surgery. Thus, the Court of Appeals
granted the Republics petition, set aside the decision of the trial court and ordered the dismissal of SP
Case No. 02-105207. Petitioner moved for reconsideration but it was denied. 9 Hence, this petition.
Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed under
Articles 407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048. 10
The petition lacks merit.

A Persons First Name Cannot Be Changed On the Ground of Sex Reassignment

Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As
found by the trial court:
Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or
for any unlawful motive but solely for the purpose of making his birth records compatible
with his present sex. (emphasis supplied)
Petitioner believes that after having acquired the physical features of a female, he became entitled to the
civil registry changes sought. We disagree.
The State has an interest in the names borne by individuals and entities for purposes of identification. 11 A
change of name is a privilege, not a right.12 Petitions for change of name are controlled by statutes. 13 In
this connection, Article 376 of the Civil Code provides:
ART. 376. No person can change his name or surname without judicial authority.
This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of RA
9048 provides:
SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or
Nickname. No entry in a civil register shall be changed or corrected without a judicial order,
except for clerical or typographical errors and change of first name or nickname which can be
corrected or changed by the concerned city or municipal civil registrar or consul general in
accordance with the provisions of this Act and its implementing rules and regulations.
RA 9048 now governs the change of first name.14 It vests the power and authority to entertain petitions for
change of first name to the city or municipal civil registrar or consul general concerned. Under the law,
therefore, jurisdiction over applications for change of first name is now primarily lodged with the
aforementioned administrative officers. The intent and effect of the law is to exclude the change of first
name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries
in the Civil Registry) of the Rules of Court, until and unless an administrative petition for change of name
is first filed and subsequently denied.15 It likewise lays down the corresponding venue,16 form17 and
procedure. In sum, the remedy and the proceedings regulating change of first name are primarily
administrative in nature, not judicial.
RA 9048 likewise provides the grounds for which change of first name may be allowed:
SECTION 4. Grounds for Change of First Name or Nickname. The petition for change of first
name or nickname may be allowed in any of the following cases:
(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or
extremely difficult to write or pronounce;
(2) The new first name or nickname has been habitually and continuously used by the petitioner
and he has been publicly known by that first name or nickname in the community; or
(3) The change will avoid confusion.

Petitioners basis in praying for the change of his first name was his sex reassignment. He intended to
make his first name compatible with the sex he thought he transformed himself into through surgery.
However, a change of name does not alter ones legal capacity or civil status. 18 RA 9048 does not
sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion,
changing petitioners first name for his declared purpose may only create grave complications in the civil
registry and the public interest.
Before a person can legally change his given name, he must present proper or reasonable cause or any
compelling reason justifying such change.19 In addition, he must show that he will be prejudiced by the
use of his true and official name.20 In this case, he failed to show, or even allege, any prejudice that he
might suffer as a result of using his true and official name.
In sum, the petition in the trial court in so far as it prayed for the change of petitioners first name was not
within that courts primary jurisdiction as the petition should have been filed with the local civil registrar
concerned, assuming it could be legally done. It was an improper remedy because the proper remedy
was administrative, that is, that provided under RA 9048. It was also filed in the wrong venue as the
proper venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept. More
importantly, it had no merit since the use of his true and official name does not prejudice him at all. For all
these reasons, the Court of Appeals correctly dismissed petitioners petition in so far as the change of his
first name was concerned.
No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex
Reassignment
The determination of a persons sex appearing in his birth certificate is a legal issue and the court must
look to the statutes.21 In this connection, Article 412 of the Civil Code provides:
ART. 412. No entry in the civil register shall be changed or corrected without a judicial order.
Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far as clerical or
typographical errors are involved. The correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In effect, RA 9048 removed from the
ambit of Rule 108 of the Rules of Court the correction of such errors. 22 Rule 108 now applies only to
substantial changes and corrections in entries in the civil register.23
Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:
SECTION 2. Definition of Terms. As used in this Act, the following terms shall mean:
xxx

xxx

xxx

(3) "Clerical or typographical error" refers to a mistake committed in the performance of

clerical work in writing, copying, transcribing or typing an entry in the civil register that is
harmless and innocuous, such as misspelled name or misspelled place of birth or the
like, which is visible to the eyes or obvious to the understanding, and can be corrected or
changed only by reference to other existing record or records: Provided, however, That
no correction must involve the change of nationality, age, status or sex of the
petitioner. (emphasis supplied)

Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules
of Court.
The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of
Court are those provided in Articles 407 and 408 of the Civil Code: 24
ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be
recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship;
(13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a
minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those
that occur after birth.25 However, no reasonable interpretation of the provision can justify the conclusion
that it covers the correction on the ground of sex reassignment.
To correct simply means "to make or set aright; to remove the faults or error from" while to change means
"to replace something with something else of the same kind or with something that serves as a
substitute."26 The birth certificate of petitioner contained no error. All entries therein, including those
corresponding to his first name and sex, were all correct. No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as legitimations,
acknowledgments of illegitimate children and naturalization), events (such as births, marriages,
naturalization and deaths) and judicial decrees (such as legal separations, annulments of marriage,
declarations of nullity of marriages, adoptions, naturalization, loss or recovery of citizenship, civil
interdiction, judicial determination of filiation and changes of name). These acts, events and judicial
decrees produce legal consequences that touch upon the legal capacity, status and nationality of a
person. Their effects are expressly sanctioned by the laws. In contrast, sex reassignment is not among
those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law,
expressly or impliedly.
"Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities and
incapacities) of a person in view of his age, nationality and his family membership. 27
The status of a person in law includes all his personal qualities and relations, more or less
permanent in nature, not ordinarily terminable at his own will, such as his being legitimate or
illegitimate, or his being married or not. The comprehensive term status include such matters
as the beginning and end of legal personality, capacity to have rights in general, family relations,
and its various aspects, such as birth, legitimation, adoption, emancipation, marriage, divorce,
and sometimes even succession.28 (emphasis supplied)
A persons sex is an essential factor in marriage and family relations. It is a part of a persons legal
capacity and civil status. In this connection, Article 413 of the Civil Code provides:

ART. 413. All other matters pertaining to the registration of civil status shall be governed by
special laws.
But there is no such special law in the Philippines governing sex reassignment and its effects. This is fatal
to petitioners cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5. Registration and certification of births. The declaration of the physician or midwife in
attendance at the birth or, in default thereof, the declaration of either parent of the newborn child,
shall be sufficient for the registration of a birth in the civil register. Such declaration shall be
exempt from documentary stamp tax and shall be sent to the local civil registrar not later than
thirty days after the birth, by the physician or midwife in attendance at the birth or by either parent
of the newborn child.
In such declaration, the person above mentioned shall certify to the following facts: (a) date and
hour of birth; (b) sex and nationality of infant; (c) names, citizenship and religion of parents or, in
case the father is not known, of the mother alone; (d) civil status of parents; (e) place where the
infant was born; and (f) such other data as may be required in the regulations to be issued.
xxx

xxx

xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time
of birth.29 Thus, the sex of a person is determined at birth, visually done by the birth attendant (the
physician or midwife) by examining the genitals of the infant. Considering that there is no law legally
recognizing sex reassignment, the determination of a persons sex made at the time of his or her birth, if
not attended by error,30is immutable.31
When words are not defined in a statute they are to be given their common and ordinary meaning in the
absence of a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil Register
Law and laws concerning the civil registry (and even all other laws) should therefore be understood in
their common and ordinary usage, there being no legislative intent to the contrary. In this connection, sex
is defined as "the sum of peculiarities of structure and function that distinguish a male from a female" 32 or
"the distinction between male and female." 33 Female is "the sex that produces ova or bears young" 34 and
male is "the sex that has organs to produce spermatozoa for fertilizing ova." 35 Thus, the words "male" and
"female" in everyday understanding do not include persons who have undergone sex reassignment.
Furthermore, "words that are employed in a statute which had at the time a well-known meaning are
presumed to have been used in that sense unless the context compels to the contrary." 36 Since the
statutory language of the Civil Register Law was enacted in the early 1900s and remains unchanged, it
cannot be argued that the term "sex" as used then is something alterable through surgery or something
that allows a post-operative male-to-female transsexual to be included in the category "female."
For these reasons, while petitioner may have succeeded in altering his body and appearance through the
intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that
reason. Thus, there is no legal basis for his petition for the correction or change of the entries in his birth
certificate.
Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of
Equity

The trial court opined that its grant of the petition was in consonance with the principles of justice and
equity. It believed that allowing the petition would cause no harm, injury or prejudice to anyone. This is
wrong.
The changes sought by petitioner will have serious and wide-ranging legal and public policy
consequences. First, even the trial court itself found that the petition was but petitioners first step towards
his eventual marriage to his male fianc. However, marriage, one of the most sacred social institutions, is
a special contract of permanent union between a man and a woman.37 One of its essential requisites is
the legal capacity of the contracting parties who must be a male and a female.38 To grant the changes
sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family
relations. It will allow the union of a man with another man who has undergone sex reassignment (a maleto-female post-operative transsexual). Second, there are various laws which apply particularly to women
such as the provisions of the Labor Code on employment of women, 39 certain felonies under the Revised
Penal Code40 and the presumption of survivorship in case of calamities under Rule 131 of the Rules of
Court,41 among others. These laws underscore the public policy in relation to women which could be
substantially affected if petitioners petition were to be granted.
It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render judgment
by reason of the silence, obscurity or insufficiency of the law." However, it is not a license for courts to
engage in judicial legislation. The duty of the courts is to apply or interpret the law, not to make or amend
it.
In our system of government, it is for the legislature, should it choose to do so, to determine what
guidelines should govern the recognition of the effects of sex reassignment. The need for legislative
guidelines becomes particularly important in this case where the claims asserted are statute-based.
To reiterate, the statutes define who may file petitions for change of first name and for correction or
change of entries in the civil registry, where they may be filed, what grounds may be invoked, what proof
must be presented and what procedures shall be observed. If the legislature intends to confer on a
person who has undergone sex reassignment the privilege to change his name and sex to conform with
his reassigned sex, it has to enact legislation laying down the guidelines in turn governing the conferment
of that privilege.
It might be theoretically possible for this Court to write a protocol on when a person may be recognized as
having successfully changed his sex. However, this Court has no authority to fashion a law on that matter,
or on anything else. The Court cannot enact a law where no law exists. It can only apply or interpret the
written word of its co-equal branch of government, Congress.
Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the]
realization of their dreams." No argument about that. The Court recognizes that there are people whose
preferences and orientation do not fit neatly into the commonly recognized parameters of social
convention and that, at least for them, life is indeed an ordeal. However, the remedies petitioner seeks
involve questions of public policy to be addressed solely by the legislature, not by the courts.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.

0
G.R. No. 166676 September 12, 2008

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs
JENNIFER B. CAGANDAHAN, Respondent.

QUISUMBING, J.:

This is a petition for review under Rule 45 of the Rules of Court raising purely questions of law and
seeking a reversal of the Decision [1] dated January 12, 2005 of the Regional Trial Court (RTC), Branch 33
of Siniloan, Laguna, which granted the Petition for Correction of Entries in Birth Certificate filed by Jennifer
B. Cagandahan and ordered the following changes of entries in Cagandahans birth certificate: (1) the
name Jennifer Cagandahan changed to Jeff Cagandahan and (2) gender from female to male.
The facts are as follows.
On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for Correction of Entries
in Birth Certificate[2] before the RTC, Branch 33 of Siniloan, Laguna.
In her petition, she alleged that she was born on January 13, 1981 and was registered as a
female in the Certificate of Live Birth but while growing up, she developed secondary male characteristics
and was diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a condition where persons
thus afflicted possess both male and female characteristics. She further alleged that she was diagnosed
to have clitoral hyperthropy in her early years and at age six, underwent an ultrasound where it was
discovered that she has small ovaries. At age thirteen, tests revealed that her ovarian structures had
minimized, she has stopped growing and she has no breast or menstrual development. She then alleged
that for all interests and appearances as well as in mind and emotion, she has become a male
person. Thus, she prayed that her birth certificate be corrected such that her gender be changed from
female to male and her first name be changed from Jennifer to Jeff.
The petition was published in a newspaper of general circulation for three (3) consecutive weeks
and was posted in conspicuous places by the sheriff of the court. The Solicitor General entered his
appearance and authorized the Assistant Provincial Prosecutor to appear in his behalf.
To prove her claim, respondent testified and presented the testimony of Dr. Michael Sionzon of
the Department of Psychiatry, University of the Philippines-Philippine General Hospital. Dr. Sionzon
issued a medical certificate stating that respondents condition is known as CAH. He explained that
genetically respondent is female but because her body secretes male hormones, her female organs did

not develop normally and she has two sex organs female and male. He testified that this condition is
very rare, that respondents uterus is not fully developed because of lack of female hormones, and that
she has no monthly period. He further testified that respondents condition is permanent and
recommended the change of gender because respondent has made up her mind, adjusted to her chosen
role as male, and the gender change would be advantageous to her.
The RTC granted respondents petition in a Decision dated January 12, 2005 which reads:
The Court is convinced that petitioner has satisfactorily shown that he is entitled
to the reliefs prayed [for]. Petitioner has adequately presented to the Court very clear
and convincing proofs for the granting of his petition. It was medically proven that
petitioners body produces male hormones, and first his body as well as his action and
feelings are that of a male. He has chosen to be male. He is a normal person and wants
to be acknowledged and identified as a male.
WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is
hereby ordered to make the following corrections in the birth [c]ertificate of Jennifer
Cagandahan upon payment of the prescribed fees:
a)
By changing the name from Jennifer Cagandahan to JEFF
CAGANDAHAN; and
b)

By changing the gender from female to MALE.

It is likewise ordered that petitioners school records, voters registry, baptismal

certificate, and other pertinent records are hereby amended to conform with the foregoing
corrected data.
SO ORDERED.[3]

Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal of the abovementioned
ruling.
The issues raised by petitioner are:
THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING THAT:
I.
THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT HAVE
NOT BEEN COMPLIED WITH; AND,
II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF SEX
OR GENDER IN THE BIRTH CERTIFICATE, WHILE RESPONDENTS MEDICAL
CONDITION, i.e., CONGENITAL ADRENAL HYPERPLASIA DOES NOT MAKE HER A
MALE.[4]

Simply stated, the issue is whether the trial court erred in ordering the correction of entries in the
birth certificate of respondent to change her sex or gender, from female to male, on the ground of her

medical condition known as CAH, and her name from Jennifer to Jeff, under Rules 103 and 108 of the
Rules of Court.
The OSG contends that the petition below is fatally defective for non-compliance with Rules 103
and 108 of the Rules of Court because while the local civil registrar is an indispensable party in a petition
for cancellation or correction of entries under Section 3, Rule 108 of the Rules of Court, respondents
petition before the court a quo did not implead the local civil registrar.[5] The OSG further contends
respondents petition is fatally defective since it failed to state that respondent is a bona fide resident of
the province where the petition was filed for at least three (3) years prior to the date of such filing as
mandated under Section 2(b), Rule 103 of the Rules of Court. [6] The OSG argues that Rule 108 does not
allow change of sex or gender in the birth certificate and respondents claimed medical condition known
as CAH does not make her a male.[7]
On the other hand, respondent counters that although the Local Civil Registrar of Pakil, Laguna
was not formally named a party in the Petition for Correction of Birth Certificate, nonetheless the Local
Civil Registrar was furnished a copy of the Petition, the Order to publish on December 16, 2003 and all
pleadings, orders or processes in the course of the proceedings, [8] respondent is actually a male person
and hence his birth certificate has to be corrected to reflect his true sex/gender, [9] change of sex or
gender is allowed under Rule 108, [10] and respondent substantially complied with the requirements of
Rules 103 and 108 of the Rules of Court.[11]
Rules 103 and 108 of the Rules of Court provide:

Rule 103
CHANGE OF NAME
SECTION 1. Venue. A person desiring to change his name shall present the
petition to the Regional Trial Court of the province in which he resides, [or, in the City
of Manila, to the Juvenile and Domestic Relations Court].
SEC. 2. Contents of petition. A petition for change of name shall be signed and
verified by the person desiring his name changed, or some other person on his behalf,
and shall set forth:
(a)
That the petitioner has been a bona fide resident of the province where
the petition is filed for at least three (3) years prior to the date of such filing;
(b)

The cause for which the change of the petitioner's name is sought;

(c)

The name asked for.

SEC. 3. Order for hearing. If the petition filed is sufficient in form and substance,
the court, by an order reciting the purpose of the petition, shall fix a date and place for the
hearing thereof, and shall direct that a copy of the order be published before the hearing
at least once a week for three (3) successive weeks in some newspaper of general
circulation published in the province, as the court shall deem best. The date set for the

hearing shall not be within thirty (30) days prior to an election nor within four (4) months
after the last publication of the notice.
SEC. 4. Hearing. Any interested person may appear at the hearing and oppose
the petition. The Solicitor General or the proper provincial or city fiscal shall appear on
behalf of the Government of the Republic.
SEC. 5. Judgment. Upon satisfactory proof in open court on the date fixed in the
order that such order has been published as directed and that the allegations of the
petition are true, the court shall, if proper and reasonable cause appears for changing the
name of the petitioner, adjudge that such name be changed in accordance with the
prayer of the petition.
SEC. 6. Service of judgment. Judgments or orders rendered in connection with
this rule shall be furnished the civil registrar of the municipality or city where the court
issuing the same is situated, who shall forthwith enter the same in the civil register.
Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
SECTION 1. Who may file petition. Any person interested in any act, event,
order or decree concerning the civil status of persons which has been recorded in the
civil register, may file a verified petition for the cancellation or correction of any entry
relating thereto, with the Regional Trial Court of the province where the corresponding
civil registry is located.
SEC. 2. Entries subject to cancellation or correction. Upon good and valid
grounds, the following entries in the civil register may be cancelled or corrected: (a)
births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of
marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h)
adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss or
recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n)
voluntary emancipation of a minor; and (o) changes of name.
SEC. 3. Parties. When cancellation or correction of an entry in the civil register
is sought, the civil registrar and all persons who have or claim any interest which would
be affected thereby shall be made parties to the proceeding.
SEC. 4. Notice and publication. Upon the filing of the petition, the court shall, by
an order, fix the time and place for the hearing of the same, and cause reasonable notice
thereof to be given to the persons named in the petition. The court shall also cause the
order to be published once a week for three (3) consecutive weeks in a newspaper of
general circulation in the province.
SEC. 5. Opposition. The civil registrar and any person having or claiming any
interest under the entry whose cancellation or correction is sought may, within fifteen (15)
days from notice of the petition, or from the last date of publication of such notice, file his
opposition thereto.
SEC. 6. Expediting proceedings. The court in which the proceedings is brought
may make orders expediting the proceedings, and may also grant preliminary injunction
for the preservation of the rights of the parties pending such proceedings.
SEC. 7. Order. After hearing, the court may either dismiss the petition or issue
an order granting the cancellation or correction prayed for. In either case, a certified copy

of the judgment shall be served upon the civil registrar concerned who shall annotate the
same in his record.

The OSG argues that the petition below is fatally defective for non-compliance with Rules 103
and 108 of the Rules of Court because respondents petition did not implead the local civil
registrar. Section 3, Rule 108 provides that the civil registrar and all persons who have or claim any
interest which would be affected thereby shall be made parties to the proceedings. Likewise, the local
civil registrar is required to be made a party in a proceeding for the correction of name in the civil
registry. He is an indispensable party without whom no final determination of the case can be had.
[12]
Unless all possible indispensable parties were duly notified of the proceedings, the same shall be
considered as falling much too short of the requirements of the rules. [13] The corresponding petition
should also implead as respondents the civil registrar and all other persons who may have or may claim
to have any interest that would be affected thereby.[14] Respondent, however, invokes Section 6, [15] Rule 1
of the Rules of Court which states that courts shall construe the Rules liberally to promote their objectives
of securing to the parties a just, speedy and inexpensive disposition of the matters brought before it. We
agree that there is substantial compliance with Rule 108 when respondent furnished a copy of the petition
to the local civil registrar.
The determination of a persons sex appearing in his birth certificate is a legal issue and the court
must look to the statutes. In this connection, Article 412 of the Civil Code provides:
ART. 412. No entry in a civil register shall be changed or corrected without a judicial
order.

Together with Article 376[16] of the Civil Code, this provision was amended by Republic Act No.
9048 in so far as clerical or typographical errors are involved. The correction or change of such matters
can now be made through administrative proceedings and without the need for a judicial order. In effect,
Rep. Act No. 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such errors.
Rule 108 now applies only to substantial changes and corrections in entries in the civil register.[18]
[17]

Under Rep. Act No. 9048, a correction in the civil registry involving the change of sex is not a
mere clerical or typographical error. It is a substantial change for which the applicable procedure is Rule
108 of the Rules of Court.[19]
The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the
Rules of Court are those provided in Articles 407 and 408 of the Civil Code:
ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be
recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions;

(9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even
those that occur after birth.[20]
Respondent undisputedly has CAH. This condition causes the early or inappropriate
appearance of male characteristics. A person, like respondent, with this condition produces too much
androgen, a male hormone. A newborn who has XX chromosomes coupled with CAH usually has a (1)
swollen clitoris with the urethral opening at the base, an ambiguous genitalia often appearing more male
than female; (2) normal internal structures of the female reproductive tract such as the ovaries, uterus and
fallopian tubes; as the child grows older, some features start to appear male, such as deepening of the
voice, facial hair, and failure to menstruate at puberty. About 1 in 10,000 to 18,000 children are born with
CAH.
CAH is one of many conditions [21] that involve intersex anatomy. During the twentieth century,
medicine adopted the term intersexuality to apply to human beings who cannot be classified as either
male or female.[22] The term is now of widespread use. According to Wikipedia, intersexuality is the
state of a living thing of a gonochoristicspecies whose sex chromosomes, genitalia, and/or secondary sex
characteristics are determined to be neither exclusively male nor female. An organism with intersex may
have biological characteristics of both male and female sexes.
Intersex individuals are treated in different ways by different cultures. In most
societies, intersex individuals have been expected to conform to either a male or female gender role.
[23]
Since the rise of modern medical science in Western societies, some intersex people with ambiguous
external genitalia have had their genitalia surgically modified to resemble either male or female genitals.
[24]
More commonly, an intersex individual is considered as suffering from a disorder which is almost
always recommended to be treated, whether by surgery and/or by taking lifetime medication in order to
mold the individual as neatly as possible into the category of either male or female.
In deciding this case, we consider the compassionate calls for recognition of the various degrees
of intersex as variations which should not be subject to outright denial. It has been suggested that there
is some middle ground between the sexes, a no-mans land for those individuals who are neither truly
male nor truly female.[25] The current state of Philippine statutes apparently compels that a person be
classified either as a male or as a female, but this Court is not controlled by mere appearances when
nature itself fundamentally negates such rigid classification.
In the instant case, if we determine respondent to be a female, then there is no basis for a
change in the birth certificate entry for gender. But if we determine, based on medical testimony and
scientific development showing the respondent to be other than female, then a change in the

subjects birth certificate entry is in order.

Biologically, nature endowed respondent with a mixed (neither consistently and categorically
female nor consistently and categorically male) composition. Respondent has female (XX)
chromosomes. However, respondents body system naturally produces high levels of male hormones
(androgen). As a result, respondent has ambiguous genitalia and the phenotypic features of a male.
Ultimately, we are of the view that where the person is biologically or naturally intersex the
determining factor in his gender classification would be what the individual, like respondent, having
reached the age of majority, with good reason thinks of his/her sex. Respondent here thinks of himself as
a male and considering that his body produces high levels of male hormones (androgen) there is
preponderant biological support for considering him as being male. Sexual development in cases
of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender
of such persons, like respondent, is fixed.
Respondent here has simply let nature take its course and has not taken unnatural steps to arrest
or interfere with what he was born with. And accordingly, he has already ordered his life to that of a
male. Respondent could have undergone treatment and taken steps, like taking lifelong medication, [26] to
force his body into the categorical mold of a female but he did not. He chose not to do so. Nature has
instead taken its due course in respondents development to reveal more fully his male characteristics.
In the absence of a law on the matter, the Court will not dictate on respondent concerning a
matter so innately private as ones sexuality and lifestyle preferences, much less on whether or not to
undergo medical treatment to reverse the male tendency due to CAH. The Court will not consider
respondent as having erred in not choosing to undergo treatment in order to become or remain as a
female. Neither will the Court force respondent to undergo treatment and to take medication in order to fit
the mold of a female, as society commonly currently knows this gender of the human
species. Respondent is the one who has to live with his intersex anatomy. To him belongs the human
right to the pursuit of happiness and of health. Thus, to him should belong the primordial choice of what
courses of action to take along the path of his sexual development and maturation. In the absence of
evidence that respondent is an incompetent [27] and in the absence of evidence to show that classifying
respondent as a male will harm other members of society who are equally entitled to protection under the
law, the Court affirms as valid and justified the respondents position and his personal judgment of being a
male.
In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an
individual deals with what nature has handed out. In other words, we respect respondents congenital
condition and his mature decision to be a male. Life is already difficult for the ordinary person. We
cannot but respect how respondent deals with hisunordinary state and thus help make his life easier,
considering the unique circumstances in this case.

As for respondents change of name under Rule 103, this Court has held that a change of name
is not a matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and
the consequences that will follow.[28] The trial courts grant of respondents change of name from Jennifer
to Jeff implies a change of a feminine name to a masculine name. Considering the consequence that
respondents change of name merely recognizes his preferred gender, we find merit in respondents
change of name. Such a change will conform with the change of the entry in his birth certificate from
female to male.
WHEREFORE, the Republics petition is DENIED. The Decision dated January 12, 2005 of the
Regional Trial Court, Branch 33 of Siniloan, Laguna, is AFFIRMED. No pronouncement as to costs.
SO ORDERED.

G.R. No. 186571

August 11, 2010

GERBERT R. CORPUZ, Petitioner,

vs.
DAISYLYN TIROL STO. TOMAS and The SOLICITOR GENERAL, Respondents.
DECISION
BRION, J.:
Before the Court is a direct appeal from the decision 1 of the Regional Trial Court (RTC) of Laoag City,
Branch 11, elevated via a petition for review on certiorari2 under Rule 45 of the Rules of Court (present
petition).
Petitioner Gerbert R. Corpuz was a former Filipino citizen who acquired Canadian citizenship through
naturalization on November 29, 2000.3 On January 18, 2005, Gerbert married respondent Daisylyn T. Sto.
Tomas, a Filipina, in Pasig City.4 Due to work and other professional commitments, Gerbert left for
Canada soon after the wedding. He returned to the Philippines sometime in April 2005 to surprise
Daisylyn, but was shocked to discover that his wife was having an affair with another man. Hurt and
disappointed, Gerbert returned to Canada and filed a petition for divorce. The Superior Court of Justice,
Windsor, Ontario, Canada granted Gerberts petition for divorce on December 8, 2005. The divorce
decree took effect a month later, on January 8, 2006. 5
Two years after the divorce, Gerbert has moved on and has found another Filipina to love. Desirous of
marrying his new Filipina fiance in the Philippines, Gerbert went to the Pasig City Civil Registry Office
and registered the Canadian divorce decree on his and Daisylyns marriage certificate. Despite the
registration of the divorce decree, an official of the National Statistics Office (NSO) informed Gerbert that
the marriage between him and Daisylyn still subsists under Philippine law; to be enforceable, the foreign
divorce decree must first be judicially recognized by a competent Philippine court, pursuant to NSO
Circular No. 4, series of 1982.6
Accordingly, Gerbert filed a petition for judicial recognition of foreign divorce and/or declaration of
marriage as dissolved (petition) with the RTC. Although summoned, Daisylyn did not file any responsive

pleading but submitted instead a notarized letter/manifestation to the trial court. She offered no opposition
to Gerberts petition and, in fact, alleged her desire to file a similar case herself but was prevented by
financial and personal circumstances. She, thus, requested that she be considered as a party-in-interest
with a similar prayer to Gerberts.
In its October 30, 2008 decision,7 the RTC denied Gerberts petition. The RTC concluded that Gerbert
was not the proper party to institute the action for judicial recognition of the foreign divorce decree as he
is a naturalized Canadian citizen. It ruled that only the Filipino spouse can avail of the remedy, under the
second paragraph of Article 26 of the Family Code,8 in order for him or her to be able to remarry under
Philippine law.9 Article 26 of the Family Code reads:
Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in
the country where they were solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino
spouse shall likewise have capacity to remarry under Philippine law.
This conclusion, the RTC stated, is consistent with the legislative intent behind the enactment of the
second paragraph of Article 26 of the Family Code, as determined by the Court in Republic v. Orbecido
III;10 the provision was enacted to "avoid the absurd situation where the Filipino spouse remains married
to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse." 11
THE PETITION
From the RTCs ruling,12 Gerbert filed the present petition.13
Gerbert asserts that his petition before the RTC is essentially for declaratory relief, similar to that filed in
Orbecido; he, thus, similarly asks for a determination of his rights under the second paragraph of Article
26 of the Family Code. Taking into account the rationale behind the second paragraph of Article 26 of the
Family Code, he contends that the provision applies as well to the benefit of the alien spouse. He claims
that the RTC ruling unduly stretched the doctrine in Orbecido by limiting the standing to file the petition
only to the Filipino spouse an interpretation he claims to be contrary to the essence of the second
paragraph of Article 26 of the Family Code. He considers himself as a proper party, vested with sufficient
legal interest, to institute the case, as there is a possibility that he might be prosecuted for bigamy if he
marries his Filipina fiance in the Philippines since two marriage certificates, involving him, would be on
file with the Civil Registry Office. The Office of the Solicitor General and Daisylyn, in their respective
Comments,14 both support Gerberts position.
Essentially, the petition raises the issue of whether the second paragraph of Article 26 of the Family Code
extends to aliens the right to petition a court of this jurisdiction for the recognition of a foreign divorce
decree.
THE COURTS RULING
The alien spouse can claim no right under the second paragraph of Article 26 of the Family Code as the
substantive right it establishes is in favor of the Filipino spouse

The resolution of the issue requires a review of the legislative history and intent behind the second
paragraph of Article 26 of the Family Code.
The Family Code recognizes only two types of defective marriages void 15 and voidable16 marriages. In
both cases, the basis for the judicial declaration of absolute nullity or annulment of the marriage exists
before or at the time of the marriage. Divorce, on the other hand, contemplates the dissolution of the
lawful union for cause arising after the marriage.17 Our family laws do not recognize absolute divorce
between Filipino citizens.18
Recognizing the reality that divorce is a possibility in marriages between a Filipino and an alien, President
Corazon C. Aquino, in the exercise of her legislative powers under the Freedom Constitution, 19 enacted
Executive Order No. (EO) 227, amending Article 26 of the Family Code to its present wording, as follows:
Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in
the country where they were solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino
spouse shall likewise have capacity to remarry under Philippine law.
Through the second paragraph of Article 26 of the Family Code, EO 227 effectively incorporated into the
law this Courts holding in Van Dorn v. Romillo, Jr.20 and Pilapil v. Ibay-Somera.21 In both cases, the Court
refused to acknowledge the alien spouses assertion of marital rights after a foreign courts divorce decree
between the alien and the Filipino. The Court, thus, recognized that the foreign divorce had already
severed the marital bond between the spouses. The Court reasoned in Van Dorn v. Romillo that:
To maintain x x x that, under our laws, [the Filipino spouse] has to be considered still married to
[the alien spouse] and still subject to a wife's obligations x x x cannot be just. [The Filipino
spouse] should not be obliged to live together with, observe respect and fidelity, and render
support to [the alien spouse]. The latter should not continue to be one of her heirs with possible
rights to conjugal property. She should not be discriminated against in her own country if the ends
of justice are to be served.22
As the RTC correctly stated, the provision was included in the law "to avoid the absurd situation where the
Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to
the Filipino spouse."23 The legislative intent is for the benefit of the Filipino spouse, by clarifying his or her
marital status, settling the doubts created by the divorce decree. Essentially, the second paragraph of
Article 26 of the Family Code provided the Filipino spouse a substantive right to have his or her marriage
to the alien spouse considered as dissolved, capacitating him or her to remarry.24 Without the second
paragraph of Article 26 of the Family Code, the judicial recognition of the foreign decree of divorce,
whether in a proceeding instituted precisely for that purpose or as a related issue in another proceeding,
would be of no significance to the Filipino spouse since our laws do not recognize divorce as a mode of
severing the marital bond;25 Article 17 of the Civil Code provides that the policy against absolute divorces
cannot be subverted by judgments promulgated in a foreign country. The inclusion of the second
paragraph in Article 26 of the Family Code provides the direct exception to this rule and serves as basis
for recognizing the dissolution of the marriage between the Filipino spouse and his or her alien spouse.
Additionally, an action based on the second paragraph of Article 26 of the Family Code is not limited to
the recognition of the foreign divorce decree. If the court finds that the decree capacitated the alien
spouse to remarry, the courts can declare that the Filipino spouse is likewise capacitated to contract

another marriage. No court in this jurisdiction, however, can make a similar declaration for the alien
spouse (other than that already established by the decree), whose status and legal capacity are generally
governed by his national law.26
Given the rationale and intent behind the enactment, and the purpose of the second paragraph of Article
26 of the Family Code, the RTC was correct in limiting the applicability of the provision for the benefit of
the Filipino spouse. In other words, only the Filipino spouse can invoke the second paragraph of Article 26
of the Family Code; the alien spouse can claim no right under this provision.
The foreign divorce decree is presumptive evidence of a right that clothes the party with legal interest to
petition for its recognition in this jurisdiction
We qualify our above conclusion i.e., that the second paragraph of Article 26 of the Family Code
bestows no rights in favor of aliens with the complementary statement that this conclusion is not
sufficient basis to dismiss Gerberts petition before the RTC. In other words, the unavailability of the
second paragraph of Article 26 of the Family Code to aliens does not necessarily strip Gerbert of legal
interest to petition the RTC for the recognition of his foreign divorce decree. The foreign divorce decree
itself, after its authenticity and conformity with the aliens national law have been duly proven according to
our rules of evidence, serves as a presumptive evidence of right in favor of Gerbert, pursuant to Section
48, Rule 39 of the Rules of Court which provides for the effect of foreign judgments. This Section states:
SEC. 48. Effect of foreign judgments or final orders.The effect of a judgment or final order of a
tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows:
(a) In case of a judgment or final order upon a specific thing, the judgment or final order is
conclusive upon the title of the thing; and
(b) In case of a judgment or final order against a person, the judgment or final order is
presumptive evidence of a right as between the parties and their successors in interest
by a subsequent title.
In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of law or fact.
To our mind, direct involvement or being the subject of the foreign judgment is sufficient to clothe a party
with the requisite interest to institute an action before our courts for the recognition of the foreign
judgment. In a divorce situation, we have declared, no less, that the divorce obtained by an alien abroad
may be recognized in the Philippines, provided the divorce is valid according to his or her national law.27
The starting point in any recognition of a foreign divorce judgment is the acknowledgment that our courts
do not take judicial notice of foreign judgments and laws. Justice Herrera explained that, as a rule, "no
sovereign is bound to give effect within its dominion to a judgment rendered by a tribunal of another
country."28 This means that the foreign judgment and its authenticity must be proven as facts under our
rules on evidence, together with the aliens applicable national law to show the effect of the judgment on
the alien himself or herself.29 The recognition may be made in an action instituted specifically for the
purpose or in another action where a party invokes the foreign decree as an integral aspect of his claim or
defense.
In Gerberts case, since both the foreign divorce decree and the national law of the alien, recognizing his
or her capacity to obtain a divorce, purport to be official acts of a sovereign authority, Section 24, Rule
132 of the Rules of Court comes into play. This Section requires proof, either by (1) official publications or

(2) copies attested by the officer having legal custody of the documents. If the copies of official records
are not kept in the Philippines, these must be (a) accompanied by a certificate issued by the proper
diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the
record is kept and (b) authenticated by the seal of his office.
The records show that Gerbert attached to his petition a copy of the divorce decree, as well as the
required certificates proving its authenticity,30 but failed to include a copy of the Canadian law on
divorce.31 Under this situation, we can, at this point, simply dismiss the petition for insufficiency of
supporting evidence, unless we deem it more appropriate to remand the case to the RTC to determine
whether the divorce decree is consistent with the Canadian divorce law.
We deem it more appropriate to take this latter course of action, given the Article 26 interests that will be
served and the Filipina wifes (Daisylyns) obvious conformity with the petition. A remand, at the same
time, will allow other interested parties to oppose the foreign judgment and overcome a petitioners
presumptive evidence of a right by proving want of jurisdiction, want of notice to a party, collusion, fraud,
or clear mistake of law or fact. Needless to state, every precaution must be taken to ensure conformity
with our laws before a recognition is made, as the foreign judgment, once recognized, shall have the
effect of res judicata32 between the parties, as provided in Section 48, Rule 39 of the Rules of Court. 33
In fact, more than the principle of comity that is served by the practice of reciprocal recognition of foreign
judgments between nations, the res judicata effect of the foreign judgments of divorce serves as the
deeper basis for extending judicial recognition and for considering the alien spouse bound by its terms.
This same effect, as discussed above, will not obtain for the Filipino spouse were it not for the substantive
rule that the second paragraph of Article 26 of the Family Code provides.
Considerations beyond the recognition of the foreign divorce decree
As a matter of "housekeeping" concern, we note that the Pasig City Civil Registry Office has already
recorded the divorce decree on Gerbert and Daisylyns marriage certificate based on the mere
presentation of the decree.34We consider the recording to be legally improper; hence, the need to draw
attention of the bench and the bar to what had been done.
Article 407 of the Civil Code states that "[a]cts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register." The law requires the entry in the civil registry of judicial
decrees that produce legal consequences touching upon a persons legal capacity and status, i.e., those
affecting "all his personal qualities and relations, more or less permanent in nature, not ordinarily
terminable at his own will, such as his being legitimate or illegitimate, or his being married or not." 35
A judgment of divorce is a judicial decree, although a foreign one, affecting a persons legal capacity and
status that must be recorded. In fact, Act No. 3753 or the Law on Registry of Civil Status specifically
requires the registration of divorce decrees in the civil registry:
Sec. 1. Civil Register. A civil register is established for recording the civil status of persons, in
which shall be entered:
(a) births;
(b) deaths;
(c) marriages;

(d) annulments of marriages;

(e) divorces;
(f) legitimations;
(g) adoptions;
(h) acknowledgment of natural children;
(i) naturalization; and
(j) changes of name.
xxxx
Sec. 4. Civil Register Books. The local registrars shall keep and preserve in their offices the
following books, in which they shall, respectively make the proper entries concerning the civil
status of persons:
(1) Birth and death register;
(2) Marriage register, in which shall be entered not only the marriages solemnized but
also divorces and dissolved marriages.
(3) Legitimation, acknowledgment, adoption, change of name and naturalization register.
But while the law requires the entry of the divorce decree in the civil registry, the law and the submission
of the decree by themselves do not ipso facto authorize the decrees registration. The law should be read
in relation with the requirement of a judicial recognition of the foreign judgment before it can be given res
judicata effect. In the context of the present case, no judicial order as yet exists recognizing the foreign
divorce decree. Thus, the Pasig City Civil Registry Office acted totally out of turn and without authority of
law when it annotated the Canadian divorce decree on Gerbert and Daisylyns marriage certificate, on the
strength alone of the foreign decree presented by Gerbert.
Evidently, the Pasig City Civil Registry Office was aware of the requirement of a court recognition, as it
cited NSO Circular No. 4, series of 1982,36 and Department of Justice Opinion No. 181, series of 1982 37
both of which required a final order from a competent Philippine court before a foreign judgment,
dissolving a marriage, can be registered in the civil registry, but it, nonetheless, allowed the registration of
the decree. For being contrary to law, the registration of the foreign divorce decree without the requisite
judicial recognition is patently void and cannot produce any legal effect.1avvphi1
Another point we wish to draw attention to is that the recognition that the RTC may extend to the
Canadian divorce decree does not, by itself, authorize the cancellation of the entry in the civil registry. A
petition for recognition of a foreign judgment is not the proper proceeding, contemplated under the Rules
of Court, for the cancellation of entries in the civil registry.
Article 412 of the Civil Code declares that "no entry in a civil register shall be changed or corrected,
without judicial order." The Rules of Court supplements Article 412 of the Civil Code by specifically
providing for a special remedial proceeding by which entries in the civil registry may be judicially

cancelled or corrected. Rule 108 of the Rules of Court sets in detail the jurisdictional and procedural
requirements that must be complied with before a judgment, authorizing the cancellation or correction,
may be annotated in the civil registry. It also requires, among others, that the verified petition must be filed
with the RTC of the province where the corresponding civil registry is located; 38 that the civil registrar and
all persons who have or claim any interest must be made parties to the proceedings; 39 and that the time
and place for hearing must be published in a newspaper of general circulation. 40 As these basic
jurisdictional requirements have not been met in the present case, we cannot consider the petition
Gerbert filed with the RTC as one filed under Rule 108 of the Rules of Court.
We hasten to point out, however, that this ruling should not be construed as requiring two separate
proceedings for the registration of a foreign divorce decree in the civil registry one for recognition of the
foreign decree and another specifically for cancellation of the entry under Rule 108 of the Rules of Court.
The recognition of the foreign divorce decree may be made in a Rule 108 proceeding itself, as the object
of special proceedings (such as that in Rule 108 of the Rules of Court) is precisely to establish the status
or right of a party or a particular fact. Moreover, Rule 108 of the Rules of Court can serve as the
appropriate adversarial proceeding41 by which the applicability of the foreign judgment can be measured
and tested in terms of jurisdictional infirmities, want of notice to the party, collusion, fraud, or clear mistake
of law or fact.
WHEREFORE, we GRANT the petition for review on certiorari, and REVERSE the October 30, 2008
decision of the Regional Trial Court of Laoag City, Branch 11, as well as its February 17, 2009 order. We
order the REMAND of the case to the trial court for further proceedings in accordance with our ruling
above. Let a copy of this Decision be furnished the Civil Registrar General. No costs.
SO ORDERED.

G.R. No. 204169

September 11, 2013

YASUO IWASAWA, PETITIONER,

vs.
FELISA CUSTODIO GANGAN1 (A.K.A FELISA GANGAN ARAMBULO, AND FELISA GANGAN
IWASAWA) AND THE LOCAL CIVIL REGISTRAR OF PASAY CITY, RESPONDENTS.
DECISION
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as
amended, assailing the September 4, 2012 Decision2 and October 16, 2012 Order3 of the Regional Trial
Court (RTC), Branch 43, of Manila in Civil Case No. 11-126203. The RTC denied the petition for
declaration of nullity of the marriage of petitioner Yasuo Iwasawa with private respondent Felisa Custodio
Gangan due to insufficient evidence.
The antecedents follow:

Petitioner, a Japanese national, met private respondent sometime in 2002 in one of his visits to the
Philippines. Private respondent introduced herself as "single" and "has never married before." Since then,
the two became close to each other. Later that year, petitioner came back to the Philippines and married
private respondent on November 28, 2002 in Pasay City. After the wedding, the couple resided in Japan. 4
In July 2009, petitioner noticed his wife become depressed. Suspecting that something might have
happened in the Philippines, he confronted his wife about it. To his shock, private respondent confessed
to him that she received news that her previous husband passed away.5
Petitioner sought to confirm the truth of his wifes confession and discovered that indeed, she was married
to one Raymond Maglonzo Arambulo and that their marriage took place on June 20, 1994. 6 This
prompted petitioner to file a petition7 for the declaration of his marriage to private respondent as null and
void on the ground that their marriage is a bigamous one, based on Article 35(4) in relation to Article 41 of
the Family Code of the Philippines.
During trial, aside from his testimony, petitioner also offered the following pieces of documentary evidence
issued by the National Statistics Office (NSO):
(1)
Certificate of Marriage8 between petitioner and private respondent marked as Exhibit "A" to prove
the fact of marriage between the parties on November 28, 2002;
(2)
Certificate of Marriage9 between private respondent and Raymond Maglonzo Arambulo marked
as Exhibit "B" to prove the fact of marriage between the parties on June 20, 1994;
(3)
Certificate of Death10 of Raymond Maglonzo Arambulo marked as Exhibits "C" and "C-1" to prove
the fact of the latters death on July 14, 2009; and
(4)
Certification11 from the NSO to the effect that there are two entries of marriage recorded by the
office pertaining to private respondent marked as Exhibit "D" to prove that private respondent in
fact contracted two marriages, the first one was to a Raymond Maglonzo Arambulo on June 20,
1994, and second, to petitioner on November 28, 2002.
The prosecutor appearing on behalf of the Office of the Solicitor General (OSG) admitted the authenticity
and due execution of the above documentary exhibits during pre-trial. 12
On September 4, 2012, the RTC rendered the assailed decision. It ruled that there was insufficient
evidence to prove private respondents prior existing valid marriage to another man. It held that while
petitioner offered the certificate of marriage of private respondent to Arambulo, it was only petitioner who
testified about said marriage. The RTC ruled that petitioners testimony is unreliable because he has no
personal knowledge of private respondents prior marriage nor of Arambulos death which makes him a
complete stranger to the marriage certificate between private respondent and Arambulo and the latters

death certificate. It further ruled that petitioners testimony about the NSO certification is likewise
unreliable since he is a stranger to the preparation of said document.
Petitioner filed a motion for reconsideration, but the same was denied by the RTC in an Order dated
October 16, 2012.
Hence this petition raising the sole legal issue of whether the testimony of the NSO records custodian
certifying the authenticity and due execution of the public documents issued by said office was necessary
before they could be accorded evidentiary weight.
Petitioner argues that the documentary evidence he presented are public documents which are
considered self-authenticating and thus it was unnecessary to call the NSO Records Custodian as
witness. He cites Article 410 of the Civil Code which provides that books making up the civil register and
all documents relating thereto shall be considered public documents and shall be prima facie evidence of
the facts stated therein. Moreover, the trial prosecutor himself also admitted the authenticity of said
documents.
The OSG, in its Comment,13 submits that the findings of the RTC are not in accord with law and
established jurisprudence. It contends that both Republic Act No. 3753, otherwise known as the Law on
Registry of Civil Status, and the Civil Code elaborated on the character of documents arising from records
and entries made by the civil registrar and categorically declared them as public documents. Being public
documents, said documents are admissible in evidence even without further proof of their due execution
and genuineness and consequently, there was no need for the court to require petitioner to present the
records custodian or officer from the NSO to testify on them. The OSG further contends that public
documents have probative value since they are prima facie evidence of the facts stated therein as
provided in the above-quoted provision of the Civil Code. Thus, the OSG submits that the public
documents presented by petitioner, considered together, completely establish the facts in issue.
In her letter14 dated March 19, 2013 to this Court, private respondent indicated that she is not against her
husbands petition to have their marriage declared null and void. She likewise admitted therein that she
contracted marriage with Arambulo on June 20, 1994 and contracted a second marriage with petitioner on
November 28, 2002. She further admitted that it was due to poverty and joblessness that she married
petitioner without telling the latter that she was previously married. Private respondent also confirmed that
it was when she found out that Arambulo passed away on July 14, 2009 that she had the guts to confess
to petitioner about her previous marriage. Thereafter, she and petitioner have separated.
We grant the petition.
There is no question that the documentary evidence submitted by petitioner are all public documents. As
provided in the Civil Code:
ART. 410. The books making up the civil register and all documents relating thereto shall be
considered public documents and shall be prima facie evidence of the facts therein contained.
As public documents, they are admissible in evidence even without further proof of their due execution
and genuineness.15 Thus, the RTC erred when it disregarded said documents on the sole ground that the
petitioner did not present the records custodian of the NSO who issued them to testify on their authenticity
and due execution since proof of authenticity and due execution was not anymore necessary. Moreover,
not only are said documents admissible, they deserve to be given evidentiary weight because they
constitute prima facie evidence of the facts stated therein. And in the instant case, the facts stated therein

remain unrebutted since neither the private respondent nor the public prosecutor presented evidence to
the contrary.
This Court has consistently held that a judicial declaration of nullity is required before a valid subsequent
marriage can be contracted; or else, what transpires is a bigamous marriage, 16 which is void from the
beginning as provided in Article 35(4) of the Family Code of the Philippines. And this is what transpired in
the instant case.
As correctly pointed out by the OSG, the documentary exhibits taken together concretely establish the
nullity of the marriage of petitioner to private respondent on the ground that their marriage is bigamous.
The exhibits directly prove the following facts: (1) that private respondent married Arambulo on June 20,
1994 in the City of Manila; (2) that private respondent contracted a second marriage this time with
petitioner on November 28, 2002 in Pasay City; (3) that there was no judicial declaration of nullity of the
marriage of private respondent with Arambulo at the time she married petitioner; (3) that Arambulo died
on July 14, 2009 and that it was only on said date that private respondents marriage with Arambulo was
deemed to have been dissolved; and (4) that the second marriage of private respondent to petitioner is
bigamous, hence null and void, since the first marriage was still valid and subsisting when the second
marriage was contracted.
WHEREFORE, the petition for review on certiorari is GRANTED. The September 4, 2012 Decision and
October 16, 2012 Order of the Regional Trial Court of Manila, Branch 43, in Civil Case No. 11-126203 are
hereby SET ASIDE. The marriage of petitioner Yasuo Iwasawa and private respondent Felisa Custodio
Gangan is declared NULL and VOID.
The Local Civil Registrar of Pasay City and the National Statistics Office are hereby ORDERED to make
proper entries into the records of the abovementioned parties in accordance with this Decision.
No pronouncement as to costs.
SO ORDERED.

G.R. No. 189538

February 10, 2014

REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
MERLINDA L. OLAYBAR, Respondent.
DECISION

PERALTA, J.:
Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court are the Regional Trial
Court1(RTC) Decision2 dated May 5, 2009 and Order3 dated August 25, 2009 in SP. Proc. No. 16519CEB. The assailed decision granted respondent Merlinda L. Olaybar's petition for cancellation of entries in

the latter's marriage contract; while the assailed order denied the motion for reconsideration filed by
petitioner Republic of the Philippines through the Office of the Solicitor General (OSG).
The facts of the case are as follows:
Respondent requested from the National Statistics Office (NSO) a Certificate of No Marriage
(CENOMAR) as one of the requirements for her marriage with her boyfriend of five years. Upon receipt
thereof, she discovered that she was already married to a certain Ye Son Sune, a Korean National, on
June 24, 2002, at the Office of the Municipal Trial Court in Cities (MTCC), Palace of Justice. She denied
having contracted said marriage and claimed that she did not know the alleged husband; she did not
appear before the solemnizing officer; and, that the signature appearing in the marriage certificate is not
hers.4 She, thus, filed a Petition for Cancellation of Entries in the Marriage Contract, especially the entries
in the wife portion thereof.5 Respondent impleaded the Local Civil Registrar of Cebu City, as well as her
alleged husband, as parties to the case.
During trial, respondent testified on her behalf and explained that she could not have appeared before
Judge Mamerto Califlores, the supposed solemnizing officer, at the time the marriage was allegedly
celebrated, because she was then in Makati working as a medical distributor in Hansao Pharma. She
completely denied having known the supposed husband, but she revealed that she recognized the named
witnesses to the marriage as she had met them while she was working as a receptionist in Tadels
Pension House. She believed that her name was used by a certain Johnny Singh, who owned a travel
agency, whom she gave her personal circumstances in order for her to obtain a passport. 6 Respondent
also presented as witness a certain Eufrocina Natinga, an employee of MTCC, Branch 1, who confirmed
that the marriage of Ye Son Sune was indeed celebrated in their office, but claimed that the alleged wife
who appeared was definitely not respondent.7 Lastly, a document examiner testified that the signature
appearing in the marriage contract was forged.8
On May 5, 2009, the RTC rendered the assailed Decision, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered, the petition is granted in favor of the petitioner,
Merlinda L. Olaybar. The Local Civil Registrar of Cebu City is directed to cancel all the entries in
the WIFE portion of the alleged marriage contract of the petitioner and respondent Ye Son Sune.
SO ORDERED.9
Finding that the signature appearing in the subject marriage contract was not that of respondent, the court
found basis in granting the latters prayer to straighten her record and rectify the terrible mistake. 10
Petitioner, however, moved for the reconsideration of the assailed Decision on the grounds that: (1) there
was no clerical spelling, typographical and other innocuous errors in the marriage contract for it to fall
within the provisions of Rule 108 of the Rules of Court; and (2) granting the cancellation of all the entries
in the wife portion of the alleged marriage contract is, in effect, declaring the marriage void ab initio. 11
In an Order dated August 25, 2009, the RTC denied petitioners motion for reconsideration couched in this
wise:
WHEREFORE, the court hereby denies the Motion for Reconsideration filed by the Republic of
the Philippines. Furnish copies of this order to the Office of the Solicitor General, the petitioners
counsel, and all concerned government agencies.

SO ORDERED.12
Contrary to petitioners stand, the RTC held that it had jurisdiction to take cognizance of cases for
correction of entries even on substantial errors under Rule 108 of the Rules of Court being the
appropriate adversary proceeding required. Considering that respondents identity was used by an
unknown person to contract marriage with a Korean national, it would not be feasible for respondent to
institute an action for declaration of nullity of marriage since it is not one of the void marriages under
Articles 35 and 36 of the Family Code.13
Petitioner now comes before the Court in this Petition for Review on Certiorari under Rule 45 of the Rules
of Court seeking the reversal of the assailed RTC Decision and Order based on the following grounds:
I.
RULE 108 OF THE REVISED RULES OF COURT APPLIES ONLY WHEN THERE ARE ERRORS IN
THE ENTRIES SOUGHT TO BE CANCELLED OR CORRECTED.
II.
GRANTING THE CANCELLATION OF "ALL THE ENTRIES IN THE WIFE PORTION OF THE ALLEGED
MARRIAGE CONTRACT," IS IN EFFECT DECLARING THE MARRIAGE VOID AB INITIO. 14
Petitioner claims that there are no errors in the entries sought to be cancelled or corrected, because the
entries made in the certificate of marriage are the ones provided by the person who appeared and
represented herself as Merlinda L. Olaybar and are, in fact, the latters personal circumstances. 15 In
directing the cancellation of the entries in the wife portion of the certificate of marriage, the RTC, in effect,
declared the marriage null and void ab initio.16 Thus, the petition instituted by respondent is actually a
petition for declaration of nullity of marriage in the guise of a Rule 108 proceeding. 17
We deny the petition.
At the outset, it is necessary to stress that a direct recourse to this Court from the decisions and final
orders of the RTC may be taken where only questions of law are raised or involved. There is a question of
law when the doubt arises as to what the law is on a certain state of facts, which does not call for the
examination of the probative value of the evidence of the parties. 18 Here, the issue raised by petitioner is
whether or not the cancellation of entries in the marriage contract which, in effect, nullifies the marriage
may be undertaken in a Rule 108 proceeding. Verily, petitioner raised a pure question of law.
Rule 108 of the Rules of Court sets forth the rules on cancellation or correction of entries in the civil
registry, to wit:
SEC. 1. Who may file petition. Any person interested in any act, event, order or decree
concerning the civil status of persons which has been recorded in the civil register, may file a
verified petition for the cancellation or correction of any entry relating thereto, with the Regional
Trial Court of the province where the corresponding civil registry is located.
SEC. 2. Entries subject to cancellation or correction. Upon good and valid grounds, the
following entries in the civil register may be cancelled or corrected: (a) births; (b) marriages; (c)
deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring
marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of

natural children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction;
(m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of
name.
SEC. 3. Parties. When cancellation or correction of an entry in the civil register is sought, the
civil registrar and all persons who have or claim any interest which would be affected thereby
shall be made parties to the proceeding.
SEC. 4. Notice and Publication. Upon the filing of the petition, the court shall, by an order, fix
the time and place for the hearing of the same, and cause reasonable notice thereof to be given
to the persons named in the petition. The court shall also cause the order to be published once a
week for three (3) consecutive weeks in a newspaper of general circulation in the province.
SEC. 5. Opposition. The civil registrar and any person having or claiming any interest under the
entry whose cancellation or correction is sought may, within fifteen (15) days from notice of the
petition, or from the last date of publication of such notice, file his opposition thereto.
SEC. 6. Expediting proceedings. The court in which the proceedings is brought may make
orders expediting the proceedings, and may also grant preliminary injunction for the preservation
of the rights of the parties pending such proceedings.
SEC. 7. Order. After hearing, the court may either dismiss the petition or issue an order granting
the cancellation or correction prayed for. In either case, a certified copy of the judgment shall be
served upon the civil registrar concerned who shall annotate the same in his record.
Rule 108 of the Rules of Court provides the procedure for cancellation or correction of entries in the civil
registry. The proceedings may either be summary or adversary. If the correction is clerical, then the
procedure to be adopted is summary. If the rectification affects the civil status, citizenship or nationality of
a party, it is deemed substantial, and the procedure to be adopted is adversary. Since the promulgation of
Republic v. Valencia19 in 1986, the Court has repeatedly ruled that "even substantial errors in a civil
registry may be corrected through a petition filed under Rule 108, with the true facts established and the
parties aggrieved by the error availing themselves of the appropriate adversarial proceeding." 20 An
appropriate adversary suit or proceeding is one where the trial court has conducted proceedings where all
relevant facts have been fully and properly developed, where opposing counsel have been given
opportunity to demolish the opposite partys case, and where the evidence has been thoroughly weighed
and considered.21
It is true that in special proceedings, formal pleadings and a hearing may be dispensed with, and the
remedy [is] granted upon mere application or motion. However, a special proceeding is not always
summary. The procedure laid down in Rule 108 is not a summary proceeding per se. It requires
publication of the petition; it mandates the inclusion as parties of all persons who may claim interest which
would be affected by the cancellation or correction; it also requires the civil registrar and any person in
interest to file their opposition, if any; and it states that although the court may make orders expediting the
proceedings, it is after hearing that the court shall either dismiss the petition or issue an order granting the
same. Thus, as long as the procedural requirements in Rule 108 are followed, it is the appropriate
adversary proceeding to effect substantial corrections and changes in entries of the civil register. 22
In this case, the entries made in the wife portion of the certificate of marriage are admittedly the personal
circumstances of respondent. The latter, however, claims that her signature was forged and she was not
the one who contracted marriage with the purported husband. In other words, she claims that no such
marriage was entered into or if there was, she was not the one who entered into such contract. It must be

recalled that when respondent tried to obtain a CENOMAR from the NSO, it appeared that she was
married to a certain Ye Son Sune. She then sought the cancellation of entries in the wife portion of the
marriage certificate.
In filing the petition for correction of entry under Rule 108, respondent made the Local Civil Registrar of
Cebu City, as well as her alleged husband Ye Son Sune, as parties-respondents. It is likewise undisputed
that the procedural requirements set forth in Rule 108 were complied with. The Office of the Solicitor
General was likewise notified of the petition which in turn authorized the Office of the City Prosecutor to
participate in the proceedings. More importantly, trial was conducted where respondent herself, the
stenographer of the court where the alleged marriage was conducted, as well as a document examiner,
testified. Several documents were also considered as evidence. With the testimonies and other evidence
presented, the trial court found that the signature appearing in the subject marriage certificate was
different from respondents signature appearing in some of her government issued identification
cards.23 The court thus made a categorical conclusion that respondents signature in the marriage
certificate was not hers and, therefore, was forged. Clearly, it was established that, as she claimed in her
petition, no such marriage was celebrated.
Indeed the Court made a pronouncement in the recent case of Minoru Fujiki v. Maria Paz Galela Marinay,
Shinichi Maekara, Local Civil Registrar of Quezon City, and the Administrator and Civil Registrar General
of the National Statistics Office24 that:
To be sure, a petition for correction or cancellation of an entry in the civil registry cannot substitute
for an action to invalidate a marriage. A direct action is necessary to prevent circumvention of the
substantive and procedural safeguards of marriage under the Family Code, A.M. No. 02-11-10SC and other related laws. Among these safeguards are the requirement of proving the limited
grounds for the dissolution of marriage, support pendente lite of the spouses and children, the
liquidation, partition and distribution of the properties of the spouses and the investigation of the
public prosecutor to determine collusion. A direct action for declaration of nullity or annulment of
marriage is also necessary to prevent circumvention of the jurisdiction of the Family Courts under
the Family Courts Act of 1997 (Republic Act No. 8369), as a petition for cancellation or correction
of entries in the civil registry may be filed in the Regional Trial Court where the corresponding civil
registry is located. In other words, a Filipino citizen cannot dissolve his marriage by the mere
expedient of changing his entry of marriage in the civil registry.
Aside from the certificate of marriage, no such evidence was presented to show the existence of
marriage. Rather, respondent showed by overwhelming evidence that no marriage was entered into and
that she was not even aware of such existence. The testimonial and documentary evidence clearly
established that the only "evidence" of marriage which is the marriage certificate was a forgery. While we
maintain that Rule 108 cannot be availed of to determine the validity of marriage, we cannot nullify the
proceedings before the trial court where all the parties had been given the opportunity to contest the
allegations of respondent; the procedures were followed, and all the evidence of the parties had already
been admitted and examined. Respondent indeed sought, not the nullification of marriage as there was
no marriage to speak of, but the correction of the record of such marriage to reflect the truth as set forth
by the evidence. Otherwise stated, in allowing the correction of the subject certificate of marriage by
cancelling the wife portion thereof, the trial court did not, in any way, declare the marriage void as there
was no marriage to speak of.
WHEREFORE, premises considered, the petition is DENIED for lack of merit. The Regional Trial Court
Decision dated May 5, 2009 and Order dated August 25, 2009 in SP. Proc. No. 16519-CEB, are
AFFIRMED.

SO ORDERED.