VOL.

37, JANUARY 30, 1971 357

Paulino vs. Belen

38

IN RE PETITION FOR ADOPTION OF NORA DIVINO

and AURORA PAULINO, both surnamed
BELEN.SOCORRO S. PAULINO, petitioner-appellant,
vs.NICASIO A. BELEN and WALFRIDO P. BELEN,
oppositors-appellees.

Judiciary Act; Jurisdiction; Appeal from order resolving

question of jurisdiction under exclusive appellate jurisdiction of

_______________

6 Lim Siong v. Republic, L-26601, June 30, 1969; Lim v. Republic, L-21193,
Sept. 30, 1966; Yong Sai v. Republic, L-20483, Sept. 30, 1966; Lim v. Republic, L-
20149, Sept. 29, 1966; Ong So v. Republic, L-20145, June 30, 1965.

358

358 SUPREME COURT REPORTS ANNOTATED

Paulino vs. Belen

Supreme Court.In the appealed order, the Court of First

Instance resolved a question of jurisdiction, more specifically, of
appellate jurisdiction. Under the Constitution, read together with
the Judiciary Act, an appeal against such an order belongs to the
exclusive appellate jurisdiction of the Supreme Court.
Remedial law; Appeals; Jurisdictional questions need not be
assigned as error.It is true that in her brief, appellant made no
assignment of error regarding the trial courts refusal to exercise
appellate jurisdiction, but Section 7 of Rule 51 explicitly exempts
jurisdictional questions from the requirement that specific
assignments of error must be made. Errors of jurisdiction may
always be considered even if not stated in the assignment of
errors nor properly argued in the brief. Under Section 7, the
Court has the option to consider plain errors it may notice
even if not jurisdictional and not specified.
Same; Same; Where to appeal in adoption cases over which
the city and municipal courts have original jurisdiction concurrent
with the Court of First Instance.In adoption cases over which
city and municipal courts have original jurisdiction concurrent
with the corresponding Courts of First Instance, the appeal in
cases filed originally with a city or municipal court is to the Court
of First Instance and not directly to the Court of Appeals, or to
this Court.
Same; Same; Cases decided by inferior courts appealable
direct to Court of Appeals or Supreme Court.It is thus clear that
the only cases filed with, tried and decided by the inferior courts
in the exercise of their original jurisdiction concurrent with the
Courts of First Instance which were appealable directly to the
Court of Appeals or to the Supreme Court at the time appellant
appealed to the court a quo were those mentioned in the
penultimate paragraph of Section 87, of the Judiciary Act, all of
which are criminal in nature. Surely, adoption cases are not
among them. As a matter of fact, there is no provision of the
Judiciary Act and its amendments or any other law, in force on
November 4, 1966, the date of the order on appeal, allowing an
appeal from a decision or order of an inferior court direct to the
Court of Appeals or the Supreme Court in civil cases within the
concurrent original jurisdiction of the Courts of First Instance and
the inferior courts.
Same; Same; Appellate jurisdiction of the Court of First
Instance.Section 45 of the Judiciary Act clearly provided that
Courts of First Instance shall have appellate jurisdiction over all
cases arising in municipal and justice of the peace courts, etc.,
without distinction as to whether these cases were of the
exclusive or of the concurrent jurisdiction of said courts with the
Courts of First Instance. The general rule cited by the

359

VOL. 37, JANUARY 30, 1971 359

Paulino vs. Belen

appellees to the effect that where two courts have concurrent

jurisdiction, the filing of a case with one of them exhausts the
jurisdiction of the other, is not without exceptions. In fact, as
aptly pointed by appellant in her motions in the court below, cases
within the concurrent original jurisdiction of the Court of First
Instance and the Supreme Court, under Section 17 of the
Judiciary Act, no one can doubt that should one such case be filed
with the CFI, the Supreme Court would have appellate
jurisdiction over the decision of the CFI therein either directly or
after the Court of Appeals as the case may be. Likewise, in special
civil actions against CFI in aid of the appellate jurisdiction of the
Court of Appeals over which the Supreme Court has concurrent
original jurisdiction with the Court of Appeals, it is obvious that
the Supreme Court has appellate jurisdiction over appeals from
orders or decisions of the Court of Appeals therein.
Same; Same; Procedure for appealing from inferior court to
CFI in adoption case.As to the procedure for appealing from an
inferior court to the Court of First Instance in an adoption case,
all that need be recalled is that adoption is a special proceeding
(Sec. 1, Rule 72) and that under Sec. 2 of the same Rule, in the
absence of special provisions, the rules provided for in ordinary
civil actions shall be, as far as practicable, applicable in special
proceedings, and hence the rules governing appeals in ordinary
civil actions from the inferior court to the Court of First Instance
apply also in adoption cases filed with city courts. In any event,
the rules for ordinary civil actions may be observed by virtue of
Section 6 of Rule 135 which authorizes that when by law
jurisdiction is conferred on a court or judicial officer, all auxiliary
writs, processes and other means necessary to carry it into effect
may be employed by such court or officer; and if the procedure to
be followed in the exercise of such jurisdiction is not specifically
pointed out by the law or by these rules, any suitable process or
mode or proceeding may be adopted which appears conformable to
the spirit of said law or rules.
Same; Same; Amendment of statute does not affect
jurisdiction already vested.Since it is not questioned that,
procedurally speaking, petitioner-appellants appeal was duly
elevated to the court a quo, and it being the ruling that said court
had appellate jurisdiction over the appealed decision of the City
Court of San Pablo City, it results that the court a quo erred in
dismissing petitioner-appellants appeal for lack of appellate
jurisdiction. The fact that Republic Act 6031 changed the rule of
appellate jurisdiction in cases of this nature on August 4, 1969 did
not affect the appellate jurisdiction already vested in the court a
quo in 1966 under Republic Act 2613.

360

360 SUPREME COURT REPORTS ANNOTATED

Paulino vs. Belen

 Civil law; Adaption; Adoption of two or more children and
persons of age.It is elementary that a person may legally adopt
two or more children and that if the children to be adopted are all
of age, the consent of neither of their legitimate parents is
necessary, all that is needed being their own consent.

APPEAL from an order of the Court of First Instance of

Laguna (San Pablo Branch). Reyes, J .
The facts are stated in the opinion of the Court.
Jose W. Diokno for petitioner-appellant.
Victoriano B. Javier for oppositors-appellees.

BARREDO, J.:

Appeal by petitioner-appellant Socorro S. Paulino from the

order of the Court of First Instance of Laguna, Branch III,
San Pablo City, dated November 4, 1966 and entered in
Special Proceeding No. 216 of said court, an appeal from a
decision of the City Court of the same city dismissing her
petition for adoption. The appealed order reads as follows:

Acting on oppositors motion to dismiss this appeal and

considering that the case is for adoption over which the City
Court of San Pablo City has concurrent jurisdiction, and is co-
equal, with this Court pursuant to Section 1(c) of Republic Act
No. 644, and since Courts of First Instance have appellate
jurisdiction only over cases that are decided by city and municipal
courts in the exercise of their original exclusive jurisdiction, this
Court believes, and so holds, that it has no jurisdiction to
entertain this case on appeal, and accordingly hereby dismisses
the same.
This renders unnecessary further consideration of petitioners
motion of October 28, 1966 to disallow or to disqualify oppositors
from intervening in the action.
SO ORDERED.

The appeal was originally made to the Court of Appeals.

Thereat, after petitioner-appellant had filed her brief,
oppositors-appellees, Nicasio A. Belen, et al. filed a
manifestation to the effect that in said brief no error
whatsoever was assigned as having been committed by the
Court of First Instance of Laguna, Branch III, but the
errors as-
361

VOL. 37, JANUARY 30, 1971 361

Paulino vs. Belen
signed were those allegedly committed by the City Court of
San Pablo City in its decision, hence oppositors-appellees
respectfull submit (s) the case for decision. Whereupon,
petitioner-appellant filed a counter-manifesta-tion and
motion stating that her real intention was to appeal from
the decision of the city court on the merits and praying
thus: Wherefore, in the paramount interest of justice, and
to avoid duplicity of appeals and further considering the
provision on the liberal construction of the Rules of Court
and the fact that the oppositors-appellees will not in
anyway be prejudiced if the present appeal will be
considered as an appeal from the decision of the City Court
of San Pablo City, your petitioner-appellant respectfully
moves and prays this Honorable Court to consider the
present appeal as an appeal directly from the decision
dated November 18, 1965 of the City Court of San Pablo
City of this Honorable Court. In a resolution dated
November 22, 1967, the Court of Appeals resolved to
consider the oppositors-appellees manifestation as a
waiver to file (sic) appellees brief and to declare this case
(be) transferred to the Calendar and submitted for
decision.
Subsequent to the release of this resolution but
evidently before oppositors-appellees receipt of copy
thereof, the Court of Appeals received belatedly from
oppositors-appellees a Reply to Counter-Manifestation and
Motion contending that the notice of appeal filed by
petitioner-appellant, which referred to an appeal from the
order of dismissal of the Court of First Instance and made
no mention of the decision of the city court, is conclusive
upon petitioner-appellant and, in any event, the said
appellant could no longer convert the appeal to one from
the city eourt in view of the fact that the reglementary
period within which such appeal should be made has been
long past due. To this reply, petitioner-appellant made
and filed a rejoinder pointing out that contrary to the
claim of appellees, the instant direct appeal was not filed
out of time because your appellants initial appeal to the
Court of First Instance of Laguna (Branch III) was
seasonably made and she filed the present brief in order to
save time and to conform to the original theory of appellees
that the
362

362 SUPREME COURT REPORTS ANNOTATED

Paulino vs. Belen
Court of First Instance of Laguna has no appellate
jurisdiction to try the instant case because according to
Section 1 of R. A. No. 644 Judges of Municipal and City
Courts have concurrent jurisdiction with the Court of First
Instance to try adoption cases (Record on Appeal, p. 17).
And since the first court that acquired jurisdiction acquires
it to the exclusion of others (Ibid.), the case at bar having
been properly decided by the City Court of San Pablo, in
the exercise of its original and concurrent jurisdiction with
Court of First Instance in adoption cases, the appeal
should be made also either to the Court of Appeals or to
the Supreme Court as the case may be (Ibid., p. 18).
Without resolving the issues thus joined by the parties, in a
resolution dated February 27, 1968, the Court of Appeals
held:

A perusal of the errors assigned by petitioner shows that they all

involve questions of law only. Under Section 17 of Judiciary Act
of 1948, the exclusive appellate jurisdiction over the case is
vested in the Supreme Court. Pursuant to Section 31 of the same
Act and Section 3 of Rule 50, the case should be forwarded to it.
Let this case therefore be certified and elevated to the
Supreme Court for its final determination.

We do not believe We can entertain petitioner-appellants

appeal as an appeal on the merits of the decision of the
City Court of San Pablo. Appellant must admit that in the
light of the categorical statement in the notice of appeal
filed with the Court of First Instance of Laguna after said
court ordered the dismissal of her appeal from the decision
of the city court for lack of appellate jurisdiction, over her
objection based on the contention that the appeal was
legally and appropriately in the said court, there can be no
question that she intended to appeal to the Court of
Appeals from the order of dismissal of the Court of First
Instance and not from the decision of the city court. One
has to be very naive to believe that counsel would have
filed his notice of appeal with the C.F.I., if his intention
were to appeal from the city courts decision. Besides, as
pointed out by appellees, at the time said notice of appeal
was filed, the time to appeal the city court
363

VOL. 37, JANUARY 30, 1971 363

Paulino vs. Belen
decision had long expired. The truth is that counsel had
already filed a notice of appeal from the decision of the city
court and it was directed to the C.F.I., and it was precisely
the appeal by virtue of said notice that was dismissed by
the C.F.I. for lack of appellate jurisdiction. Furthermore, it
is to be noted that no record on appeal as required by the
Rules was ever filed with the city court within the
reglementary period.
Fortunately for appellant, however, We are of the
opinion and so hold that We can entertain her appeal from
the order of the Court of First Instance. We gather from
the record on appeal that in the appealed order, the Court
of First Instance resolved a question of jurisdiction, more
specifically, of appellate jurisdiction. Under the
Constitution, read together with the Judiciary Act, an
appeal against such an order belongs to the exclusive
appellate jurisdiction of this Court. (See 2, Art. VIII,
Constitution of the Philippines; Sec. 17, No. 2[3], Judiciary
Act of 1948, as amended.)
It is true that in her brief, appellant made no
assignment of error regarding the trial courts refusal to
exercise appellate jurisdiction, but Section 7 of Rule 51
explicitly exempts jurisdictional questions from the
requirement that specific assignments of error must be
made. Errors of jurisdiction may always be considered
even if not stated in the assignment of errors nor properly
argued in the brief. Said section provides:

SEC.7.Questions that may be decided.No error which does not

affect the jurisdiction over the subject matter will be considered
unless stated in the assignment of errors and properly argued in
the brief, save as the court, at its option, may notice plain errors
not specified, and also clerical errors.

Withal, as can be seen, under this same provision, this

Court has the option to consider plain errors it may
notice even if not jurisdictional and not specified. In this
connection, it may be stated that in the instances in the
past wherein We expressed reluctance to take up
jurisdictional issues motu proprio, there was nothing in the
364

364 SUPREME COURT REPORTS ANNOTATED

Paulino vs. Belen

record indicating that the question had ever been raised at

all even in the courts below.
 To be sure, then, we are giving due course to the
certification of this appeal to this Court by the Court of
Appeals not because We necessarily agree with the Court
of Appeals that the errors assigned by appellant raise only
questions of law, which point We believe does not have to
be decided now, but for the reason that the only question
that can in reality be raised in this appeal is one of
jurisdiction.
Coming now to the main issue before Us, We hold that
in adoption cases over which city and municipal courts
have original jurisdiction concurrent with the
corresponding Courts of First Instance, the appeal in cases
filed originally with a city or municipal court is to the
Court of First Instance and not directly to the Court of
Appeals or to this Court.
Section 1(c) of Republic Act 644 1confers upon inferior
courts or municipal and city courts and courts of first
instance concurrent original jurisdiction over adoption
cases. Under Section 45 of the Judiciary Act, as amended
by Republic Act 2613, Courts of First Instance shall have
appellate jurisdiction over all cases arising
2
in municipal
courts and justice of the peace courts, in their respective
provinces, except over appeals from cases tried by justices
of the peace of provincial capitals or municipal judges
pursuant to the authority granted under the last
paragraph of Section eighty-seven of this Act. The cited
provision provides in turn: All cases filed under the next
preceding paragraph with Justices of the Peace of capitals
and municipal court judges shall be tried and decided on
the merits by the respective justices of the peace or
municipal judges. Proceedings had shall be recorded and
decisions therein shall be appealable direct to the Court of
Appeals or the

_______________

1 City Courts were then called municipal courts and the inferior courts
in the municipalities were known as justice of the peace courts.
2 See footnote 1.

365

VOL. 37, JANUARY 30, 1971 365

Paulino vs. Belen

Supreme Court, as the case may be, and the next

preceding paragraph referred to says: Justices of the
peace in the capitals of provinces and Judges of Municipal
Courts shall have like jurisdiction as the Court of First
Instance to try parties charged with an offense committed
within the province in which the penalty provided by law
does not exceed prision correccional or imprisonment for
not more than six years or fine not exceeding three
thousand pesos or both, and in the absence of the district
judge, shall have like jurisdiction within the province as
the Court of First Instance to hear application for bail.
It is thus clear that the only cases filed with, tried and
decided by the inferior courts in the exercise of their
original jurisdiction concurrent with the Courts of First
Instance which were appealable directly to the Court of
Appeals or to this Court at the time appellant appealed to
the court a quo were those mentioned in 3
the above-quoted
penultimate paragraph of Section 87, all of which are
criminal in nature. Surely, adoption cases are not among
them. As a matter of fact, We have not found any provision
of the Judiciary Act and its amendments or any other law,
in force on November 4, 1966, the date of the order on
appeal, allowing an appeal from a decision or order of an
inferior court direct to the Court of Appeals or to this Court

_______________

3 Section 45 of the Judiciary Act was amended by Section 1 of Republic

Act 6031 on August 4, 1969 to read thus:

SEC.45. Appellate Jurisdiction.Courts of First Instance shall have appellate

jurisdiction over all cases arising in the city and municipal courts, in their
respective provinces, except over appeals from cases tried by municipal judges of
provincial capitals or city judges pursuant to the authority granted under the last
paragraph of Section 87 of this Act.
Courts of First Instance shall decide such appealed cases on the basis of the
evidence and records transmitted from the city or municipal courts: Provided, That
the parties may submit memoranda and/or brief with oral argument if so
requested: Provided, however, That if the case was tried in a city or municipal
court before the latter became a court of record, then on appeal the case shall
proceed by trial de novo.
In cases falling under the exclusive original jurisdiction of municipal and city
courts which are appealed to

366

366 SUPREME COURT REPORTS ANNOTATED

Paulino vs. Belen

in civil cases within the concurrent original jurisdiction

4
of
the Courts of First Instance and the inferior courts.
 Appellees proposition that only cases within the
exclusive original jurisdiction of the inferior courts were
appealable to the Courts of First Instance is not correct.
Above-quoted Section 45 of the Judiciary Act clearly
provided that Courts of First Instance shall have
appellate jurisdiction over all cases arising in municipal
and justice of the peace courts, etc., without distinction as
to whether these cases were of the exclusive or of the
concurrent jurisdiction of said courts with the Courts of
First Instance. The general rule cited by appellees to the
effect that where two courts have concurrent jurisdiction,
the filing of a case with one of them exhausts the
jurisdiction of the other, is not without exceptions. In fact,
as aptly pointed out by appellant in her motions in the
court below, in cases within the concurrent original
jurisdiction of the Courts of First Instance and this Court,
under Section 17 of the Judiciary Act, no one can doubt
that should one such case be filed with the C.F.I., this
Court would have appellate jurisdiction over the decision
of the C.F.I. therein either directly or after the Court of
Appeals as the case may be. Likewise, in special civil
actions against C.F.I. in aid of the appellate jurisdiction of
the Court of Appeals over which this Court has concurrent
5
original jurisdiction with the Court of Appeals, it is
obvious that this Court has ap-

_______________

the courts of first instance, the decision of the latter shall be final:
Provided, That the findings of facts contained in said decision are
supported by substantial evidence as basis thereof, and the conclusions
are not clearly against the law and jurisprudence; in cases falling under
the concurrent jurisdictions of the municipal and city courts with the
courts of first instance, the appeal shall be made directly to the court of
appeals whose decision shall be final: Provided, however, That the
supreme court in its discretion may, in any case involving a question of
law, upon petition of the party aggrieved by the decision and under rules
and conditions that it may prescribe, require by certiorari that the case be
certified to it for review and determination, as if the case had been
brought before it on appeal.
4 See footnote 3.
5 Breslin vs. Luzon Stevedoring Co., 84 Phil. 618.

367

VOL. 37, JANUARY 30, 1971 367

Paulino vs. Belen
pellate jurisdiction over appeals from orders or decisions of
the Court of Appeals therein.
As to the procedure for appealing from an inferior court
to the Court of First Instance in an adoption case, all that
need be recalled is that adoption is a special proceeding
(Sec. 1, Rule 72) and that under Sec. 2 of the same Rule,
in the absence of special provisions, the rules provided for
in ordinary civil actions shall be, as far as practicable,
applicable in special proceedings, and hence the rules
governing appeals in ordinary civil action from the inferior
court to the Court of First Instance apply also in adoption
cases filed with city courts. In any event, the rules, for
ordinary civil actions may be observed by virtue of Section
6 of Rule 135 which authorizes that when by law
jurisdiction is conferred on a court or judicial officer, all
auxiliary writs, processes and other means necessary to
carry it into effect may be employed by such court or
officer; and if the procedure to be followed in the exercise of
such jurisdiction is not specifically pointed out by law or by
these rules, any suitable process or mode or proceeding
may be adopted which appears conformable to the spirit of
said law or rules.
Accordingly, in the case at bar, since it is not questioned
that, procedurally speaking, petitioner-appellants appeal
was duly elevated to the court a quo, and it being Our
ruling that said court had appellate jurisdiction over the
appealed decision of the City Court of San Pablo City, it
results that the court a quo erred in dismissing petitioner-
appellants appeal for lack of appellate jurisdiction. The
fact that Republic Act 6031 quoted in footnote 3 hereof
changed the rule of appellate jurisdiction in cases of this
nature on August 4, 1969 did not affect the appellate
jurisdiction already vested in the court a quo in 1966 under
Republic Act 2613.
As to the possible suggestion that to expedite
proceedings, this Court should already decide this case on
the merits, suffice it to say that the records of the
proceedings in the inferior court is not before Us. In fact,
from what appears in the record before Us, it is not clear
whether or not the inferior court acted as a court of record
here. At
368

368 SUPREME COURT REPORTS ANNOTATED

Paulino vs. Belen
any rate, We are confident that once the court a quo passes
on the objections of appellees, there will be hardly any
reason to further prolong this case, considering that it is
elementary that a person may legally adopt two or more
children and that if the children to be adopted are all of
age, the consent of neither of their legitimate parents is
necessary, all that is needed being their own consent.
WHEREFORE, the order of dismissal of the court a quo
of November 4, 1966 as well as its order of December 1,
1966 denying appellants motion for reconsideration are
hereby reversed and this case is ordered returned to said
court for appropriate proceedings consistent herewith, with
costs against appellees.

Concepcion, C.J ., Reyes, J.B .L ., Dizon,

Makalintal, Zaldivar, Castro, Fernando, Teehankee,
Villamor and Ma-kasiar, JJ., concur.

Orders reversed and case ordered returned to lower court

for appropriate proceedings.

ANNOTATION
PROBLEMS OF ADVOCACY IN FAMILY DISPUTES

I. Scope of Family and Family Disputes

According to the New Civil Code, the family is a basic social
1
institution which public policy cherishes and protects. It
includes the relationship between husband and wife,
between parent and child, among ascendants and2
descendants and among brothers and sisters.
Correspondingly, any relationship that does not fall within
the relationship enumerated in the code as belonging to the
same family can not 3come within the scope of family as
understood in the law.

_______________

1 Article 216, New Civil Code.

2 Article 217, New Civil Code.
3 Gayon vs. Gayon, et al., L-28394, November 26, 1970; 36 SCRA 104.

369

VOL. 37, JANUARY 30, 1971 369

Paulino vs. Belen
There are two types of relationship that exist in the family,
namely: the internal and the external. While the internal
concerns essentially the spiritual and moral attitudes of
the family confined within the family cell and therefore do
not affect the social order, the external ones are those in
which the exercise of the rights and obligations of
members of the family affect third persons and public
interests. According to authorities, only the external
aspects of family relations are regulated by law to
determine4 matters where society has an interest in family
relations.
On the basis of the foregoing, family disputes are
necessarily varied. Family disputes may even include any
conceivable disagreements or quarrels among any of the
different members of the family. However, for purposes of
this study, only the significant ones are selected for the
purpose of analyzing the problems that an advocate would
encounter in the advocacy of cases involving family
disputes.

II. Choice of Appropriate Tribunals

The first problem that an advocate encounters in the
presentation of a suit is the problem of choosing which
court possesses the appropriate jurisdiction over the
subject matter in or the nature of the dispute. While family
disputes are generally within the5
original jurisdiction of
the Courts of First Instance, in places where special
tribunals for juvenile and domestic relations questions
were established, original jurisdiction over specific cases of
family disputes has been considered vested exclusively in
said

_______________

4 Tolentino, Civil Code of the Philippines (Manila: Acme Publishing Co.,

1960), Vol. I, pp, 481-482, citing 4 Valverde 13-14 and 5 Sanchez Roman
41.
5 Family disputes, such as probate, both of testate and intestate
estates, appointment of guardians, annulment of marriages, adoptions,
declaration of absence, recognition of natural children and other special
proceedings not otherwise provided for, are within the original jurisdiction
of the Court of First Instance as provided for in Section 44 of the Judiciary
Act, as amended, and Rules 73, 92, 100, 105 and 107 of the Revised Rules
of Court.

370

370 SUPREME COURT REPORTS ANNOTATED

 Paulino vs. Belen

6
Juvenile and Domestic Relations Courts. Furthermore, in
special cases, like the appointment of guardians and
adoption cases, the jurisdiction of the Courts of First
Instance to take cognizance
7
thereof has been shared by the
Municipal Courts.
Unless the advocate knows exactly where to file the
case, an advocacy thereof may encounter an initial obstacle
that could prove to be the loss of the suit. It is of course a
fundamental principle in advocacy that an action will be
dismissed for lack of jurisdiction of the court over the
person8of the defendant or over the subject or nature of the
action. Evidently, where the suit was filed in a court other
than that which the law invests with jurisdiction to try the
case, the action
9
will have to be dismissed for lack of
jurisdiction.
Considering that in certain cases of family disputes,
concurrent jurisdiction over the same has been vested both
in the Courts of First Instance and the municipal courts, it
is important to remember the axiomatic principle
enunciated in several cases to the effect that the10court first
acquiring jurisdiction excludes the other courts. Hence, a
guar-

_______________

6 In Manila, Quezon City and Iloilo, family disputes involving the

custody, guardianship, adoption, paternity and acknowledgment,
separation of property, annulment of marriage, legal separation, action for
support, declaration of absence and others specifically provided in the
New Civil Code are within the exclusive original jurisdiction of the
respective Juvenile and Domestic Relations Court created in the
respective localities by virtue of the provisions of Republic Acts 1401, 4834
and 4836, respectively.
7 Under Republic Acts 643 and 644 guardianship and adoption cases
are within the concurrent jurisdictions of Courts of First Instance and
Municipal Courts in municipalities and Chartered Cities, except Manila,
Quezon City and Iloilo.
8 Rule 16, Section 1, Revised Rules of Court.
9 PRISCO vs. CIR, 108 Phil. 134; Osmea vs. Hontanosas, L-31373,
Jan. 22, 1970, 31 SCRA 48; Macailing vs. Andrada, L-21607, Jan. 30,
1970, 31 SCRA 126; Laquian vs. Baltazar, L-27514, Feb. 18, 1970, 31
SCRA 552; Pacaa vs. Cebu Autobus Co., L-25382, April 30, 1970, 32
SCRA 442.
10 Grafton vs. U.S., 11 Phil. 776, 791; Valdez vs. Lucero, 76 Phil. 356;
Broca vs. Tan, 84 Phil. 771; Lumpay vs. Moscoso,

371
 VOL. 37, JANUARY 30, 1971 371
Paulino vs. Belen

dianship or adoption proceeding filed in the municipal

court will necessarily invest that court with exclusive
jurisdiction to
11
proceed with the same to the exclusion of
other courts.

III. Significant Limitations in Family Disputes

A. The Concept of Family Solidarity and Its Legal Effect

According to the New Civil Code, all presumptions favor
the solidarity of the family. For this purpose, every
intendment of law or fact leans toward the validity of
marriage, the indissolubility of the marriage bonds, the
legitimacy of children, the community of property during
marriage, the authority of parents over their children, and
the validity of defense for any member
12
of the family in
case of unlawful aggression. It is indeed the
characteristics of solidarity in the family which the law
preserves that makes it a natural and social institution.
On the basis of the foregoing attitude of the law toward
the family, the advocacy of a case for annulment of
marriage, custody and support of children or a criminal
offense involving a member of the family will necessarily
take into account the above-mentioned presumption of law.
Accordingly, the advocate will either overcome the
presumption with preponderance of evidence to the
contrary or to strengthen it with further evidence,
depending on which side the advocate takes. Hence, if for
instance, the advocate assails the validity of marriage on
the ground of marital fraud, it is necessary that the
evidence of fraud submitted should support that which the
law contemplates, otherwise the marriage remains valid, as
it has been presumed to be. Correspondingly, in a recently
decided case,

_______________

105, Phil. 968, 972-973; Alimajen vs. Valera, 107 Phil 224, 245, Loquia
vs. Baltazar, et al., L-27514, February 18, 1970, 31 SCRA 552-557.
11 Where a Juvenile and Domestic Relations Court exists in the place
where the guardianship or adoption proceeding is to be instituted, no
other court but the Juvenile and Domestic Relations Court can acquire
jurisdiction thereon.
12 Art. 220, New Civil Code.

372
372 SUPREME COURT REPORTS ANNOTATED
Paulino vs. Belen

where the marriage was sought to be annulled for

nondisclosure by the husband of his pre-marital
relationship with another woman, the Supreme Court
declared that non-disclosure of a husbands pre-marital
relationship with another woman is not one of the
enumerated circumstances that would constitute a ground
for annulment and that while a woman may detest such
non-disclosure of premarital lewdness or feel having been
thereby cheated into giving her consent to the marriage,
nevertheless, the law does not assuage her grief after her
consent was solemnly given, for upon marriage she entered
into an institution
13
in which society, and not herself alone,
is interested.
The concept of family solidarity is also the basis of the
legal precept prohibiting any contract for personal
separation between husband and wife or any collusion to
obtain a 14decree of legal separation or of annulment of
marriage. While prior to the enactment of the New Civil
Code an amicable agreement of separation 15
between
husband and wife was considered valid, such agreement,
however, has been expressly16
declared void and of no effect
by the New Civil Code. Nonetheless, a separation of
property between husband and wife is 17still possible under
the law but subject to judicial approval.
Consistently with its policy of discouraging a regime of
separation as not in harmony with the unity of the family
and the mutual affections and help expected of spouses,
the New Civil Code requires that a separation of property
shall not prevail unless expressly stipulated in the
marriage settlements before the union is solemnized or by
formal judicial
18
decree during the existence of the
marriage; and in

_______________

13 Anaya vs. Palaroan, L-27930, Nov. 26, 1970, 36 SCRA 97.

14 Article 221, New Civil Code.
15 Guillera vs. Perez, 43 O.G. 5121.
16 Article 221, New Civil Code.
17 It should be noted that the prohibition under Article 221 of the New
Civil Code refers to an extrajudicial agreement, during marriage, for the
dissolution of the conjugal partnership of gains or of the absolute
community of property between husband and wife.
18 Article 190, New Civil Code.
 373

VOL. 37, JANUARY 30, 1971 373

Paulino vs. Belen

the latter
19
case, it may only be ordered by the court for 20
causes specified in Article 191 of the New Civil Code.
However, in so approving the regime of separation of
property of the spouses and the dissolution of their
conjugal partnership, the court does not thereby accord
recognition to nor legalize the de facto21
separation of the
spouses, if they are in fact separated.
The public policy in favor of family solidarity does not
require the court, however, to attempt to compel one of the
spouses to cohabit with and render conjugal rights to the
other. At best, what the court could do is to issue an order
that can be effective for no other purpose than to compel
the spouses to live under the same roof. According to the
Supreme Court, the experience of those countries where
courts of justice have assumed to compel the cohabitation
of married couple shows 22
that the policy of the practice is
extremely questionable.
Moreover, while the court could not compel spouses to
render conjugal rights to the other, they can make it as
difficult as possible for married couplesimpelled by no
better cause than their whims and capricesto abandon
each others company. In line with the provision of the New
Civil Code to the effect that husband and wife are obliged
to live together, observe mutual help and support, the court
would like to douse the momentary seething emotions of
couples who, at the slightest ruffling of domestic
tranquilitybrought about by mere austerity of temper,
petulance of manners, rudeness of language, a want of

_______________

19 Under Article 191 of the New Civil Code, separation of property may
be asked by a spouse if the other is under civil interdiction or has been
declared absent, or when the husband has abused his powers of
administration or abandoned his wife for at least one year, or when both
spouses voluntarily agree to such dissolution in a petition filed with the
court, or when legal separation has been granted.
20 Garcia vs. Manzano, 103 Phil. 798.
21 Lacson vs. San Jose-Lacson, et al., L-23482, August 30, 1968; San
Jose-Lacson vs. Lacson, L-23767, August 30, 1968; Lacson vs. San Jose-
Lacson, L-24259, August 30, 1968, 24 SCRA 837, 845.
22 Arroyo vs. Vazquez de Arroyo, 42 Phil. 54, 60.
 374

374 SUPREME COURT REPORTS ANNOTATED

Paulino vs. Belen

civil attention and accommodation, even occasional sallies

of passion without
23
morewould be minded to separate
from each other. The Supreme Court has observed that
although in particular cases the repugnance of the law to
dissolve the obligations of matrimonial cohabitation may
operate with great severity upon individuals, yet it should
be carefully remembered that the general happiness of the
married life is secured by its indissolubility, such that
when people understand that they must live together,
except for a very few reasons known to the law, they learn
to soften by mutual accommodation that yoke which they
know they can not shake off and they become good
husbands and good wives
24
from the necessity of remaining
husbands and wives.

B. The Concept of Child Welfare and Its Legal Effects

The welfare of children has been recognized as the
fundamental factor underlying the stability of society. In
the modern program of social improvement, emphasis has
been directed to child welfare. Apparently, it is the belief
that a child can easily be molded depending on the amount
of attention given for its improvement. Thus, in the words
of an outstanding sociologist, to train and to educate the
child are tasks worth infinitely more than to spend an
equal amount of energy on the adult with his 25
established
habits, behavior patterns and moral outlook.
It is evidently due to the necessity of providing the child
with adequate opportunities for physical, mental and moral
development that child welfare has become a part of
legislation. For this purpose, the New Civil Code declares
that every child is entitled to parental care, to at least an
elementary education, to moral and civic training by the
parents or guardian, and to live in an atmosphere
conducive to his physical, moral and intellectual develop-

_______________

23 Lacson vs. San Jose-Lacson, et al., L-23482, August 30, 1968, 24

SCRA 837, 846.
24 Arroyo vs. Vasquez de Arroyo, 42 Phil. 58-59.
25 Charles B. Mangold, Problems of Child Welfare, (New York: The
Macmillan Co., 1950), p. 1.
 375

VOL. 37, JANUARY 30, 1971 375

Paulino vs. Belen

26
ment. As a corollary, the New Civil Code requires every
parent and every person holding substitute parental
authority to see to it that the rights of the child are
respected and his duties complied with and to imbue the
child, by precept and example, with high mindedness, love
of country, veneration for the national27heroes, fidelity to
democracy as a way of life, and peace. Correspondingly,
whenever a child is found delinquent by any court, the
father, mother or guardian
28
may in a proper case be
judicially admonished.
In the light of the foregoing concept 29
on child welfare
which the government promotes, cases involving
questions of custody, care, education and property of
children 30are to be resolved in favor of the welfare of the
children. Because of the paramount consideration for the
welfare of the child, the Supreme Court even chose to
disregard
31
the order of preference established in Article
355 of the New Civil 32
Code if the childs welfare would be
subserved thereby. Thus, in the case decided by the
Supreme Court, where the maternal grandmother had been
taking care of the child since he was twenty days old upon
the death of his mother, the Supreme Court observed that
the set of circumstances showed the existence of mutual
love between the grandmother and the child, as maternal
grandmother was almost a mother to the child, and
therefore ruled that for the sake of the welfare of the child
the maternal grandmother should have the legal custody
over him, without

_______________

26 Article 356, New Civil Code.

27 Article 358, New Civil Code.
28 Article 362, New Civil Code.
29 According to Article 359 of the New Civil Code, the government for
the purpose of promoting the full growth of the faculties of every child will
establish, whenever possible: schools in every barrio, municipality and city
where optional religious instruction shall be taught as part of the
curriculum at the option of the parent or guardian; puericulture and
similar centers; councils for the protection of children; and juvenile courts.
30 Article 363, New Civil Code.
 31 According to Article 355 of the New Civil Code, substitute parental
authority shall be exercised by the grandparents in the following order: (1)
paternal grandparents; (2) maternal grandparents.
32 Flores vs. Vda. de Esteban, 97 Phil. 439.

376

376 SUPREME COURT REPORTS ANNOTATED

Paulino vs. Belen

prejudice to the
33
obligation of the father to contribute to his
maintenance.
In another custody case where the real mother sued to
recover custody of her child from the foster mother who in
turn alleged that the real mother had renounced her
custody of and patria potestas over her child on the basis
of two documents signed by her to the effect that she had
entrusted to the custody of the foster mother her son and
thereby designated said foster mother as the real guardian,
because at the time the real mother did not have the money
to bring up the child, the Supreme Court declared that the
word entrusted could not convey the idea of definite and
permanent
34
renunciation of the mothers custody of her
child. According to the Supreme Court, the court should
not take away from a mother the opportunity of bringing
up her own child even at the cost of extreme sacrifice due
to poverty and lack of means, so that afterwards, she may
be able to look back with pride and a sense of satisfaction
at her sacrifices and her efforts, however humble, to make
her dreams of her little boy come true. Furthermore, the
Supreme Court declared that the relationship between a
foster mother and a child is not natural but artificial, so
that if the child turns out to be a failure or forgetful of
what its foster parents had done for him, said parents
might yet count and appraise all that they have done and
spent for him and with regret consider all of it as a dead
loss; but not so with a real natural mother who never
counts the cost and her sacrifices, even treasuring
memories of her associations 35
with her child, however
unpleasant and disappointing.
In the advocacy of a custody case, it should be
remembered that parents are never deprived of36 the
custody and care of their children except for cause. As
every intend-

_______________

33 Flores vs. Vda. de Esteban, 97 Phil. 439, 442.

 34 Celis, et al. vs. Cafuir, et al., 68 Phil. 554, 558.
35 Celis, et al. vs. Cafuir, et al., 86 Phil. 554, 559-560.
36 It was observed by the court in the case of Ibaez de Aldecoa vs.
Hongkong and Shanghai Banking Corporation, 30 Phil. 228, 238, that it is
a universal rule of law, as beneficent to the child as it is just to the parent,
for indeed, it might well be said to belong to the realm of natural justice,
for parents to

377

VOL. 37, JANUARY 30, 1971 377

Paulino vs. Belen

ment of law or fact37leans toward the authority of parents

over their children, the law raises a strong presumption
that the childs welfare will be best subserved in the care
and control of their parents. Accordingly, the showing of
the relationship of parent and child, in the absence of
anything more, makes out a prima facie case for the
parents, which can be overcome only by the most solid and
substantial reasons, established by plain and certain proof.
Consequently, the burden of proof is not on the parent but
on the opposing party38
even when the latter has the actual
custody of the child.
If the dispute over the custody of the child, however,
involves the husband and wife who are living separately
from each other, the question of which of them is entitled
to the possession
39
of the child is a matter of judicial
discretion. In this connection, the New Civil Code
prohibits the separation
40
of a child below seven years of age
from the mother, unless such separation is grounded upon 41
compelling reasons as determined by a court.
Correspondingly, the Supreme Court made the observation
that the use of the word shall in Article 363 of the New
Civil Code, coupled with the observations of the Code
Commission in

_______________

have custody and care of their children, without being deprived of it

except for cause.
37 Articles 220 and 311, New Civil Code.
38 Perez vs. Samson, 48 O.G. 5368.
39 Lozano vs. Martinez, 36 Phil. 976.
40 Article 363 of the New Civil Code provides that no mother shall be
separated from her child under seven years of age, unless the court finds
compelling reasons for such measure.
 41 The Code Commission explained the rationale behind the rule thus:
The general rule is recommended in order to avoid many 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).

378

378 SUPREME COURT REPORTS ANNOTATED

Paulino vs. Belen

respect to42 the said provision, underscores its mandatory

character.
Before the adoption of the New Civil Code, the Supreme
Court already accepted as compelling reason for depriving
the mother of the custody of her child her infidelity toward
her husband. Thus, in one case where the father took the
child into his custody because of the infidelity of the
mother, the Supreme Court after observing that the father
had the means to support the child and that the mother
was living with her paramour declared that under existing
law, good customs and the interest of public order, the
child should not be entrusted to the 43custody of the mother
who had violated the marriage vows. Similarly, where the
trial court had considered the wife to be guilty of infidelity
and correspondingly awarded to the father the custody of a
minor child over ten years of age against a preference to
live with her mother, the Supreme Court in affirming the
decision of the trial court ruled that the welfare of the
minor is normally the controlling consideration in the
matter of its custody and where the evidence showed that a
justifiable reason provided for in the law existed then it
would be for the future welfare of the minor that its
custody 44be awarded in accordance with what the law
provides.
However, if the child is over ten years of age, it is
conceded that said child whose parents are divorced or
living separately may choose which parent he or she many
prefer to live with, unless the parent chosen is unfit to take
charge of its care by reason
45
of moral depravity, habitual
drunkenness or poverty. Thus, in a custody case where
the mother was charged with adultery committed with her
own brother-in-law, the Supreme Court accepted the
observation of the lower court to the effect that the mother
was without means of livelihood, she being dependent on
the charity of her brothers, as a compelling reason
rendering the mother unfit to take charge of the child,
with-

_______________

42 Lacson vs. San Jose-Lacson, 24 SCRA 837, 848.

43 Querubin vs. Querubin, 87 Phil. 124.
44 Slade Perkins vs. Perkins, 57 Phil. 217, 219.
45 Rule 100, Section 6, Revised Rules of Court.

379

VOL. 37, JANUARY 30, 1971 379

Paulino vs. Belen

out deciding whether the adultery committed by the

mother with46
her own brother-in-law involved moral
depravity. Nevertheless, it could be implied from previous
decisions of the court that adultery or concubinage
involved moral depravity for 47
reason of which the custody
of the child could be denied.

C. Procedural Limitations of the Rules of Court

According to the Revised Rules of Court, a motion to
dismiss may be interposed within the time for pleading if
the suit is between members of the same family and48 no
earnest effort towards a compromise have been made. In
this connection, the New Civil Code also provides: no suit
shall be filed or maintained between members of the same
family unless it should appear that earnest efforts towards49
a compromise have been made and that the same failed.
Accordingly, husband and wife, parents and their children,
ascendants and their descendants, or brothers and sisters,
recognized by the50 New Civil Code as persons belonging to
the same family, can commence or maintain suit against
the other only after an earnest effort toward a compromise
has failed.
Considering that a lawsuit between close relatives
generates deeper bitterness than between strangers, it is
necessary that every effort should be made toward a
compromise before a litigation
51
is allowed to breed hate and
passion in the family. However, notwithstanding the
necessity to foster mutual understanding among members
of the same family, if the dispute concerns the civil status
of persons, the validity of a marriage or a legal separation,
the future legitime or support of members of the same
family or any ground for legal separation, as to which no
compromise

_______________

46 Matute vs. Macaraeg, et al., L-9325, May 30, 1956.

47 Querubin vs. Querubin, 87 Phil. 124; Slade Perkins vs. Perkins, 57
Phil. 217, 219; Del Prado vs. De la Fuente, 28 Phil. 23, 29; De Jesus vs.
Palma, 34 Phil. 483, 485.
48 Rule 16, Section 1 (g), Revised Rules of Court.
49 Article 222, New Civil Code.
50 Article 217, New Civil Code.
51 Report of the Code Commission, p. 18.

380

380 SUPREME COURT REPORTS ANNOTATED

Paulino vs. Belen

52
can be valid, the lack of an earnest effort toward a
compromise cannot be interposed as a ground for motion to
dismiss. Correspondingly, except for the foregoing type of
cases which cannot be compromised, the failure to exert an
earnest effort toward a compromise will cause the
dismissal of a suit between members of the same family.
ATTY. SEVERIANO S. TABIOS

Notes .Exclusive character of Supreme Courts

jurisdiction under Section 2, Art. VIII of the Constitution.
The pronouncement in the foregoing decision that (u)nder
the Constitution, read together with the Judiciary Act, an
appeal against such an order belongs to the exclusive
appellate jurisdiction of (the Supreme) Court is significant
because of the pendency of a bill in Congress, reportedly
filed upon the recommendation of the Supreme Court,
seeking to transfer to the Court of Appeals some of the
jurisdictional matters vested in it by Section 2 of the
Constitution. That the Supreme Courts appellate
jurisdiction over matters specifically enumerated in Section
2, Article VIII of the Constitution is exclusive in character,
independently of any statute, is clear from the following
historical account of its background:
Delegate Araneta proposed to withdraw from the
constitutional appellate jurisdiction of the Supreme Court
all cases-in which an error or question of law is raised. In
defense of this proposition, Delegate Araneta contended
 that such a provision would in effect limit the freedom of
the National Assembly to determine the character of the
courts of appeals to be created later on as contemplated in
the judiciary committee of three. For under this provision,
he said, the National Assembly could not give to the coming
courts of appeals the power to decide, finally certain cases,
thereby accordingly relieving the Supreme Court of the
congestion in its work, because all cases would then be
appealable to the Supreme Court from or through the
courts of appeals owing to the fact that there could always
be raised a question of law on any judicial decision. In
defense of the retention of this provision, Delegate
Francisco in behalf of the judiciary committee of three said
that the aim was to make of the Supreme Court a court of
cassation, with the power mainly to lay down doc-

_______________

52 Article 2035, New Civil Code.

381

VOL. 37, JANUARY 30, 1971 381

Ponce Entile vs. Vinuya

trines of jurisprudence. It was the plan, he added, to have

some questions of law decided finally by the lower courts
and of having decisions on other questions of law
appealable to the Supreme Court, because that would bring
about conflicting jurisprudence. For the sake of a better
administration of justice, he said that there must be a
uniformity of legal doctrines.
When put to a vote, the Araneta amendment was
defeated.

_______________

Copyright 2017 Central Book Supply, Inc. All rights reserved.