THE FAMILY AS AN INSTITUTION

G.R. No. 125465. June 29, 1999.*

SPOUSES AUGUSTO HONTIVEROS and MARIA HONTIVEROS,
petitioners, vs. REGIONAL TRIAL COURT, Branch 25, Iloilo City
and SPOUSES GREGORIO HONTIVEROS and TEODORA AYSON,
respondents.
Appeals; Petitions for Review; Pleadings and Practice; Direct appeals to
the Supreme Court from the trial court on questions of law have to be
through the filing of a petition for review on certiorari.The petition in
this case was filed pursuant to Rule 45 of the Rules of Court. As
explained in Atlas Consolidated Mining and Development Corporation
v. Court of Appeals: Under Section 5, subparagraph (2)(e), Article VIII
of the 1987 Constitution, the Supreme Court is vested with the power
to review, revise, reverse, modify, or affirm on appeal or certiorari as
the law or the Rules of Court may provide, final judgments and orders
of lower courts in all cases in which only an error or question of law is
involved. A similar provision is contained in Section 17, fourth
paragraph, subparagraph (4) of the Judiciary Act of 1948, as
amended by Republic Act No. 5440. And, in such cases where only
questions of law are involved, Section 25 of the Interim Rules and
Guidelines implementing Batas Pambansa Blg. 129, in conjunction
with Section 3 of Republic Act No. 5440, provides that the appeal to
the Supreme Court shall be taken by petition for certiorari which shall
be governed by Rule 45 of the Rules of Court. The rule, therefore, is
that direct appeals to this Court from the trial court on questions of
law have to be through the filing of a petition for review on certiorari.
Actions; Dismissals of Actions; The court cannot dismiss a case motu
proprio without violating the plaintiffs right to be heard; Exceptions.
There are instances when the trial court may order the dismissal of
the case even without a motion to that effect filed by any of the
parties. In Baja v. Macandog, this Court mentioned these cases, to
wit: The court cannot dismiss a case motu proprio without violating
the plaintiffs right to be heard, except in the following instances: if
the plaintiff fails to appear at the time of the trial; if he fails to
prosecute his action for an unreasonable length of time; or if he fails
to comply with the rules or any order of the court; or if the court finds
that it has no jurisdiction over the subject matter of the suit.

Same; Judgment on the Pleadings; Where there are actual issues raised
in the answer, such as one involving damages, which require the
presentation of evidence and assessment thereof by the trial court, it is
improper for the judge to render judgment based on the pleadings
alone.Under the rules, if there is no controverted matter in the case
after the answer is filed, the trial court has the discretion to grant a
motion for judgment on the pleadings filed by a party. Where there are
actual issues raised in the answer, such as one involving damages,
which require the presentation of evidence and assessment thereof by
the trial court, it is improper for the judge to render judgment based
on the pleadings alone. In this case, aside from the amount of
damages, the following factual issues have to be resolved, namely, (1)
private respondent Teodora Aysons participation and/or liability, if
any, to petitioners and (2) the nature, extent, and duration of private
respondents possession of the subject property. The trial court,
therefore, correctly denied petitioners motion for judgment on the
pleadings.
Same; Verifications; Jurisdiction; The absence of the verification
required in Article 151 of the Family Code does not affect the
jurisdiction of the court over the subject matter of the complaint; If the
court doubts the veracity of the allegations regarding efforts made to
settle the case among members of the same family, it could simply
order the petitioners to verify them.The trial court erred in
dismissing petitioners complaint on the ground that, although it
alleged that earnest efforts had been made toward the settlement of
the case but they proved futile, the complaint was not verified for
which reason the trial court could not believe the veracity of the
allegation. The absence of the verification required in Art. 151 does
not affect the jurisdiction of the court over the subject matter of the
complaint. The verification is merely a formal requirement intended to
secure an assurance that matters which are alleged are true and
correct. If the court doubted the veracity of the allegations regarding
efforts made to settle the case among members of the same family, it
could simply have ordered petitioners to verify them. As this Court
has already ruled, the court may simply order the correction of
unverified pleadings or act on it and waive strict compliance with the
rules in order that the ends of justice may be served. Otherwise, mere
suspicion or doubt on the part of the trial court as to the truth of the
allegation that earnest efforts had been made toward a compromise
but the parties efforts proved unsuccessful is not a ground for the

dismissal of an action. Only if it is later shown that such efforts had

not really been exerted would the court be justified in dismissing the
action.
Same; Pleadings and Practice; Persons and Family Relations; Words
and Phrases; The inclusion of parties who are not members of the same
family takes the case out of the ambit of Article 151 of the Family Code;
The phrase members of the same family refers to the husband and
wife, parents and children, ascendants and descendants, and brothers
and sisters, whether full or half-blood, but does not include brothersin-law and sisters-in-law.The inclusion of private respondent
Ayson as defendant and petitioner Maria Hontiveros as plaintiff takes
the case out of the ambit of Art. 151 of the Family Code. Under this
provision, the phrase members of the same family refers to the
husband and wife, parents and children, ascendants and
descendants, and brothers and sisters, whether full or half-blood. As
this Court held in Guerrero v. RTC, Ilocos Norte, Br. XVI: As early as
two decades ago, we already ruled in Gayon v. Gayon that the
enumeration of brothers and sisters as members of the same family
does not comprehend sisters-in-law. In that case, then Chief Justice
Concepcion emphasized that sisters-in-law (hence, also brothersin-law) are not listed under Art. 217 of the New Civil Code as
members of the same family. Since Art. 150 of the Family Code
repeats essentially the same enumeration of members of the family,
we find no reason to alter existing jurisprudence on the matter.
Consequently, the court a quo erred in ruling that petitioner Guerrero,
being a brother-in-law of private respondent Hernando, was required
to exert earnest efforts towards a compromise before filing the present
suit.
Same; Same; Same; Religious relationship and relationship by affinity
are not given any legal effect in this jurisdiction.Religious
relationship and relationship by affinity are not given any legal effect
in this jurisdiction. Consequently, private respondent Ayson, who is
described in the complaint as the spouse of respondent Hontiveros,
and petitioner Maria Hontiveros, who is admittedly the spouse of
petitioner Augusto Hontiveros, are considered strangers to the
Hontiveros family, for purposes of Art. 151.
Judicial Review; Courts do not pass upon constitutional questions
unless they are the very lis mota of the case.Petitioners finally
question the constitutionality of Art. 151 of the Family Code on the
ground that it in effect amends the Rules of Court. This, according to

them, cannot be done since the Constitution reserves in favor of the

Supreme Court the power to promulgate rules of pleadings and
procedure. Considering the conclusion we have reached in this case,
however, it is unnecessary for present purposes to pass upon this
question. Courts do not pass upon constitutional questions unless
they are the very lis mota of the case.
PETITION for review on certiorari of a decision of the Regional Trial
Court of Iloilo City, Br. 25.
The facts are stated in the opinion of the Court.
Ramon A. Gonzales for petitioners.
Resurreccion S. Salvilla for private respondents.
MENDOZA, J.:
On December 3, 1990, petitioners, the spouses Augusto and Maria
Hontiveros, filed a complaint for damages against private respondents
Gregorio Hontiveros and Teodora Ayson before the Regional Trial
Court of Iloilo City, Branch 25, where it was docketed as Civil Case
No. 19504. In said complaint, petitioners alleged that they are the
owners of a parcel of land, in the town of Jamindan, Province of
Capiz, as shown by OCT No. 0-2124, issued pursuant to the decision
of the Intermediate Appellate Court, dated April 12, 1984, which
modified the decision of the Court of First Instance of Capiz, dated
January 23, 1975, in a land registration case 1 filed by private
respondent Gregorio Hontiveros; that petitioners were deprived of
income from the land as a result of the filing of the land registration
case; that such income consisted of rentals from tenants of the land
in the amount of P66,000.00 per year from 1968 to 1987, and
P595,000.00 per year thereafter; and that private respondents filed
the land registration case and withheld possession of the land from
petitioners in bad faith.2
In their answer, private respondents denied that they were married
and alleged that private respondent Hontiveros was a widower while
private respondent Ayson was single. They denied that they had
deprived petitioners of possession of and income from the land. On
the contrary, they alleged that possession of the property in question
had already been transferred to petitioners on August 7, 1985, by

virtue of a writ of possession, dated July 18, 1985, issued by the clerk
of court of the Regional Trial Court of Capiz, Mambusao, the return
thereof having been received by petitioners counsel; that since then,
petitioners have been directly receiving rentals from the tenants of the
land; that the complaint failed to state a cause of action since it did
not allege that earnest efforts towards a compromise had been made,
considering that petitioner Augusto Hontiveros and private
respondent Gregorio Hontiveros are brothers; that the decision of the
Intermediate Appellate Court in Land Registration Case No. N-581-25
was null and void since it was based upon a ground which was not
passed upon by the trial court; that petitioners claim for damages
was barred by prescription with respect to claims before 1984; that
there were no rentals due since private respondent Hontiveros was a
possessor in good faith and for value; and that private respondent
Ayson had nothing to do with the case as she was not married to
private respondent Gregorio Hontiveros and did not have any
proprietary interest in the subject property. Private respondents
prayed for the dismissal of the complaint and for an order against
petitioners to pay damages to private respondents by way of
counterclaim, as well as reconveyance of the subject land to private
respondents.3

The Court, after an assessment of the diverging views and arguments

presented by both parties, is of the opinion and so holds that
judgment on the pleadings is inappropriate not only for the fact that
the defendants in their answer, particularly in its paragraph 3 to the
amended complaint, specifically denied the claim of damages against
them, but also because of the ruling in De la Cruz vs. Cruz, G.R. No.
27759, April 17, 1970 (32 SCRA 307), citing Rili vs. Chunaco, 98 Phil.
505, which ruled that the party claiming damages must satisfactorily
prove the amount thereof and that though the rule is that failure to
specifically deny the allegations in the complaint or counter-claim is
deemed an admission of said allegations, there is however an
exception to it, that is, that when the allegations refer to the amount
of damages, the allegations must still be proved. This ruling is in
accord with the provision of Section 1, Rule 9 of the Rules of Court.

On May 16, 1991, petitioners filed an Amended Complaint to insert

therein an allegation that earnest efforts towards a compromise have
been made between the parties but the same were unsuccessful.

The submission of the plaintiffs that, assuming no such earnest

efforts were made, the same is not necessary or jurisdictional in the
light of the ruling in Rufino Magbaleta, et al., petitioners, vs. Hon.
Arsenio M. Gonong, et al., respondents, No. L-44903, April 22, 1977,
is, to the mind of this Court, not applicable to the case at bar for the
fact is the rationale in that case is not present in the instant case
considering these salient points:

In due time, private respondents filed an Answer to Amended

Complaint with Counterclaim, in which they denied, among other
things, that earnest efforts had been made to reach a compromise but
the parties were unsuccessful. On July 19, 1995, petitioners moved
for a judgment on the pleadings on the ground that private
respondents answer did not tender an issue or that it otherwise
admitted the material allegations of the complaint.4 Private
respondents opposed the motion alleging that they had denied
petitioners claims and thus tendered certain issues of fact which
could only be resolved after trial.5
On November 23, 1995, the trial court denied petitioners motion. At
the same time, however, it dismissed the case on the ground that the
complaint was not verified as required by Art. 151 of the Family Code
and, therefore, it did not believe that earnest efforts had been made to
arrive at a compromise. The order of the trial court reads: 6

That while the plaintiffs in their amended complaint allege that

earnest efforts towards a compromise with the defendants were made,
the fact is that their complaint was not verified as provided in Article
151 of the Family Code. Besides, it is not believed that there were
indeed earnest efforts made to patch up and/or reconcile the two
feuding brothers, Gregorio and Augusto, both surnamed Hontiveros.

1. a) Teodora Ayson, the alleged wife of defendant Gregorio

Hontiveros and allegedly not a member of the Hontiveros
Family, is not shown to be really the wife of Gregorio, a fact
which Gregorio also denied in their verified answer to the
amended complaint;
2. b) Teodora Ayson has not been shown to have acquired any
proprietary right or interest in the land that was litigated by
Gregorio and Augusto, unlike in the cited case of Magbaleta
where it was shown that a stranger to the family acquired
certain right;

1. c) In the decision rendered by the appellate court no mention

was made at all of the name of Teodora Ayson as part-awardee
of Lot 37 that was adjudged to Gregorio other than himself
who was therein described as a widower. Moreover, Teodora
was never mentioned in said decision, nor in the amended
complaint and in the amended motion for judgment on the
pleadings that she ever took any part in the act or transaction
that gave rise to the damages allegedly suffered by the
plaintiffs for which they now claim some compensation.
WHEREFORE, in the light of all the foregoing premises, the Court
orders, as it hereby orders, the dismissal of this case with cost against
the plaintiffs.
SO ORDERED.
Petitioners moved for a reconsideration of the order of dismissal, but
their motion was denied.7 Hence, this petition for review on certiorari.
Petitioners contend:
1. I. THE REGIONAL TRIAL COURT PALPABLY ERRED IN
DISMISSING THE COMPLAINT ON THE GROUND THAT IT
DOES NOT ALLEGE UNDER OATH THAT EARNEST EFFORTS
TOWARD A COMPROMISE WERE MADE PRIOR TO THE
FILING THEREOF AS REQUIRED BY ARTICLE 151 OF THE
FAMILY CODE.
2. II. THE REGIONAL TRIAL COURT PALPABLY ERRED IN NOT
DENYING THE MOTION FOR JUDGMENT ON THE
PLEADINGS AND ORDERING A TRIAL ON THE MERITS.
Private respondents raise a preliminary question. They argue that
petitioners should have brought this case on appeal to the Court of
Appeals since the order of the trial court judge was actually a decision
on the merits. On the other hand, even if petition for certiorari were
the proper remedy, they contend that the petition is defective because
the judge of the trial court has not been impleaded as a respondent. 8
Private respondents contention is without merit. The petition in this
case was filed pursuant to Rule 45 of the Rules of Court. As explained
in Atlas Consolidated Mining and Development Corporation v. Court of
Appeals:9

Under Section 5, subparagraph (2)(e), Article VIII of the 1987

Constitution, the Supreme Court is vested with the power to review,
revise, reverse, modify, or affirm on appeal or certiorari as the law or
the Rules of Court may provide, final judgments and orders of lower
courts in all cases in which only an error or question of law is
involved. A similar provision is contained in Section 17, fourth
paragraph, subaragraph (4) of the Judiciary Act of 1948, as amended
by Republic Act No. 5440. And, in such cases where only questions of
law are involved, Section 25 of the Interim Rules and Guidelines
implementing Batas Pambansa Blg. 129, in conjunction with Section
3 of Republic Act No. 5440, provides that the appeal to the Supreme
Court shall be taken by petition for certiorari which shall be governed
by Rule 45 of the Rules of Court.
The rule, therefore, is that direct appeals to this Court from the trial
court on questions of law have to be through the filing of a petition for
review on certiorari. It has been held that:
x x x when a CFI (RTC) adjudicates a case in the exercise of its
original jurisdiction, the correct mode of elevating the judgment to the
Court of Appeals is by ordinary appeal, or appeal by writ of error,
involving merely the filing of a notice of appealexcept only if the
appeal is taken in special proceedings and other cases wherein
multiple appeals are allowed under the law, in which even the filing of
a record on appeal is additionally required. Of course, when the
appeal would involve purely questions of law or any of the other cases
(except criminal cases as stated hereunder) specified in Section 5(2),
Article X of the Constitution, it should be taken to the Supreme Court
by petition for review on certiorari in accordance with Rules 42 and
45 of the Rules of Court.
By way of implementation of the aforestated provisions of law, this
Court issued on March 9, 1990 Circular No. 2-90, paragraph 2 of
which provides:
2. Appeals from Regional Courts to the Supreme Court.Except in
criminal cases where the penalty imposed is life imprisonment or
reclusion perpetua, judgments of regional trial courts may be appealed
to the Supreme Court only by petition for review on certiorari in
accordance with Rule 45 of the Rules of Court in relation to Section
17 of the Judiciary Act of 1948, as amended, this being the clear
intendment of the provision of the Interim Rules that (a)ppeals to the

Supreme Court shall be taken by petition for certiorari which shall be

governed by Rule 45 of the Rules of Court.
Under the foregoing considerations, therefore, the inescapable
conclusion is that herein petitioner adopted the correct mode of
appeal in G.R. No. 88354 by filing with this Court a petition to review
on certiorari the decision of the Regional Trial Court of Pasig in Civil
Case No. 25528 and raising therein purely questions of law.
In Meneses v. Court of Appeals, it was held:10
It must also be stressed that the trial courts order of 5 June 1992
dismissing the petitioners complaint was, whether it was right or
wrong, a final order because it had put an end to the particular
matter resolved, or settled definitely the matter therein disposed of
and left nothing more to be done by the trial court except the
execution of the order. It is a firmly settled rule that the remedy
against such order is the remedy of appeal and not certiorari. That
appeal may be solely on questions of law, in which case it may be
taken only to this Court; or on questions of fact and law, in which
case the appeal should be brought to the Court of Appeals. Pursuant
to Murillo v. Consul, the appeal to this Court should be by petition for
review on certiorari in accordance with Rule 45 of the Rules of Court.
As private respondents themselves admit, the order of November 23,
1995 is a final order from which an appeal can be taken. It is final in
the sense that it disposes of the pending action before the court and
puts an end to the litigation so that nothing more was left for the trial
court to do.11 Furthermore, as the questions raised are questions of
law, petition for review on certiorari is the proper mode of appeal.
These questions are: (1) whether after denying petitioners motion for
judgment on the pleadings, the trial court could dismiss their
complaint motu proprio for failure to comply with Art. 151 of the
Family Code which provides that no suit between members of the
same family shall prosper unless it appears from the complaint,
which must be verified, that earnest efforts towards a compromise
have been made but the same have failed; and (2) whether Art. 151
applies to this case. These questions do not require an examination of
the probative value of evidence presented and the truth or falsehood
of facts asserted which questions of fact would entail. 12

On the other hand, petitioners contend that the trial court erred in
dismissing the complaint when no motion to that effect was made by
any of the parties. They point out that, in opposing the motion for
judgment on the pleadings, private respondents did not seek the
dismissal of the case but only the denial of petitioners motion.
Indeed, what private respondents asked was that trial be held on the
merits.
Of course, there are instances when the trial court may order the
dismissal of the case even without a motion to that effect filed by any
of the parties. In Baja v. Macandog,13 this Court mentioned these
cases, to wit:
The court cannot dismiss a case motu proprio without violating the
plaintiffs right to be heard, except in the following instances: if the
plaintiff fails to appear at the time of the trial; if he fails to prosecute
his action for an unreasonable length of time; or if he fails to comply
with the rules or any order of the court; or if the court finds that it
has no jurisdiction over the subject matter of the suit.
However, none of these exceptions appears in this case.
Moreover, the trial court itself found that judgment on the pleadings
is inappropriate not only for the fact that [private respondents] in
their answer . . . specifically denied the claim of damages against
them, but also because of the [rule] . . . that the party claiming
damages must satisfactorily prove the amount thereof . . . .
Necessarily, a trial must be held.
Rule 19 of the Rules of Court provides: 14
SECTION 1. Judgment on the pleadings.Where an answer fails to
tender an issue, or otherwise admits the material allegation of the
adverse partys pleading, the court may, on motion of the party, direct
judgment on such pleading. But in actions for annulment of marriage
or for legal separation the material facts alleged in the complaint shall
always be proved.
Under the rules, if there is no controverted matter in the case after
the answer is filed, the trial court has the discretion to grant a motion
for judgment on the pleadings filed by a party.15 Where there are
actual issues raised in the answer, such as one involving damages,

which require the presentation of evidence and assessment thereof by

the trial court, it is improper for the judge to render judgment based
on the pleadings alone.16 In this case, aside from the amount of
damages, the following factual issues have to be resolved, namely, (1)
private respondent Teodora Aysons participation and/or liability, if
any, to petitioners and (2) the nature, extent, and duration of private
respondents possession of the subject property. The trial court,
therefore, correctly denied petitioners motion for judgment on the
pleadings.
However, the trial court erred in dismissing petitioners complaint on
the ground that, although it alleged that earnest efforts had been
made toward the settlement of the case but they proved futile, the
complaint was not verified for which reason the trial court could not
believe the veracity of the allegation.
The absence of the verification required in Art. 151 does not affect the
jurisdiction of the court over the subject matter of the complaint. The
verification is merely a formal requirement intended to secure an
assurance that matters which are alleged are true and correct. If the
court doubted the veracity of the allegations regarding efforts made to
settle the case among members of the same family, it could simply
have ordered petitioners to verify them. As this Court has already
ruled, the court may simply order the correction of unverified
pleadings or act on it and waive strict compliance with the rules in
order that the ends of justice may be served.17 Otherwise, mere
suspicion or doubt on the part of the trial court as to the truth of the
allegation that earnest efforts had been made toward a compromise
but the parties efforts proved unsuccessful is not a ground for the
dismissal of an action. Only if it is later shown that such efforts had
not really been exerted would the court be justified in dismissing the
action. Thus, Art. 151 provides:
No suit between members of the same family shall prosper unless it
should appear from the verified complaint or petition that earnest
efforts toward a compromise have been made, but that the same have
failed. It if is shown that no such efforts were in fact made, the case
must be dismissed.
This rule shall not apply to cases which may not be the subject of
compromise under the Civil Code.

Moreover, as petitioners contend, Art. 151 of the Family Code does

not apply in this case since the suit is not exclusively among family
members. Citing several cases18 decided by this Court, petitioners
claim that whenever a stranger is a party in a case involving family
members, the requisite showing of earnest efforts to compromise is no
longer mandatory. They argue that since private respondent Ayson is
admittedly a stranger to the Hontiveros family, the case is not covered
by the requirements of Art. 151 of the Family Code.
We agree with petitioners. The inclusion of private respondent Ayson
as defendant and petitioner Maria Hontiveros as plaintiff takes the
case out of the ambit of Art. 151 of the Family Code. Under this
provision, the phrase members of the same family refers to the
husband and wife, parents and children, ascendants and
descendants, and brothers and sisters, whether full or half-blood.19
As this Court held in Guerrero v. RTC, Ilocos Norte, Br. XVI:20
As early as two decades ago, we already ruled in Gayon v. Gayon that
the enumeration of brothers and sisters as members of the same
family does not comprehend sisters-in-law. In that case, then Chief
Justice Concepcion emphasized that sisters-in-law (hence, also
brothers-in-law) are not listed under Art. 217 of the New Civil Code
as members of the same family. Since Art. 150 of the Family Code
repeats essentially the same enumeration of members of the family,
we find no reason to alter existing jurisprudence on the matter.
Consequently, the court a quo erred in ruling that petitioner Guerrero,
being a brother-in-law of private respondent Hernando, was required
to exert earnest efforts towards a compromise before filing the present
suit.
Religious relationship and relationship by affinity are not given any
legal effect in this jurisdiction.21 Consequently, private respondent
Ayson, who is described in the complaint as the spouse of respondent
Hontiveros, and petitioner Maria Hontiveros, who is admittedly the
spouse of petitioner
Augusto Hontiveros, are considered strangers to the Hontiveros
family, for purposes of Art. 151.
Petitioners finally question the constitutionality of Art. 151 of the
Family Code on the ground that it in effect amends the Rules of
Court. This, according to them, cannot be done since the Constitution

reserves in favor of the Supreme Court the power to promulgate rules

of pleadings and procedure. Considering the conclusion we have
reached in this case, however, it is unnecessary for present purposes
to pass upon this question. Courts do not pass upon constitutional
questions unless they are the very lis mota of the case.
WHEREFORE, the petition is GRANTED and the Order, dated
November 23, 1995 of the Regional Trial Court of Iloilo City, Branch
25 is SET ASIDE and the case is remanded to the trial court for
further proceedings not inconsistent with this decision.
SO ORDERED.
Bellosillo (Chairman), Puno, Quisumbing and Buena, JJ., concur.
Petition granted, order set aside. Case remanded to trial court for
further proceedings.
Notes.Earnest efforts towards a compromise is a condition
precedent to filing of suits between members of the same family, noncompliance of which, complaint is assailable at any stage of the
proceedings for lack of cause of action. (OLaco vs. Co Cho Chit, 220
SCRA 656 [1993])
A brother-in-law is not a member of the family of his wife and is
outside the scope and coverage of Article 222 of the Civil Code
requiring that the same members of a family should exert efforts to
bring about a compromise before the commencement of a litigation.
(Esquivias vs. Court of Appeals, 272 SCRA 803 [1997])

G.R. No. 109068. January 10, 1994.*

GAUDENCIO GUERRERO, petitioner, vs. REGIONAL TRIAL COURT
OF ILOCOS NORTE, BR. XVI, JUDGE LUIS B. BELLO, JR.,
PRESIDING, AND PEDRO G. HERNANDO, respondents.
Civil Procedure; Action; The requirement that the complaint or petition
should allege that earnest efforts towards a compromise have been
made but that the same failed is mandatory.Considering that Art.
151 herein-quoted starts with the negative word No, the requirement
is mandatory that the complaint or petition, which must be verified,
should allege that earnest efforts towards a compromise have been
made but that the same failed, so that, [i]f it is shown that no such
efforts were in fact made, the case must be dismissed.
Same; Same; Same; The enumeration of brothers and sisters as
members of the same family does not comprehend sisters-in-law.
But the instant case presents no occasion for the application of the
above-quoted provisions. As early as two decades ago, we already
ruled in Gayon v. Gayon that the enumeration of brothers and
sisters as members of the same family does not comprehend sistersin-law. In that case, then Chief Justice Concepcion emphasized that
sisters-inlaw (hence, also brothers-in-law) are not listed under Art.
217 of the New Civil Code as members of the same family. Since Art.
150 of the Family Code repeats essentially the same enumeration of
members of the family, we find no reason to alter existing
jurisprudence on the matter.
Same; Same; Same; The attempt to compromise as well as the inability
to succeed is a condition precedent to the filing of a suit between
members of the same family.As regards the second issue, we need
only reiterate our ruling in OLaco v. Co Cho Chit, citing Mendoza v.
Court of Appeals, that the attempt to compromise as well as the
inability to succeed is a condition precedent to the filing of a suit
between members of the same family, the absence of such allegation
in the complaint being assailable at any stage of the proceeding, even
on appeal, for lack of cause of action.
PETITION for review of the orders of the Regional Trial Court of Ilocos
Norte, Br. 16. Bello, Jr., J.

The facts are stated in the opinion of the Court.

Juan Jacinto for petitioner.
Alipio V. Flores for private respondent.
BELLOSILLO, J.:
Filed by petitioner as an accion publiciana1 against private
respondent, this case assumed another dimension when it was
dismissed by respondent Judge on the ground that the parties being
brothers-in-law the complaint should have alleged that earnest efforts
were first exerted towards a compromise.
Admittedly, the complaint does not allege that the parties exerted
earnest efforts towards a compromise and that the same failed.
However, private respondent Pedro G. Hernando apparently
overlooked this alleged defect since he did not file any motion to
dismiss nor attack the complaint on this ground in his answer. It was
only on 7 December 1992, at the pre-trial conference, that the
relationship of petitioner Gaudencio Guerrero and respondent
Hernando was noted by respondent Judge Luis B. Bello, Jr., they
being married to half-sisters hence are brothers-in-law, and on the
basis thereof respondent Judge gave petitioner five (5) days to file his
motion and amended complaint to allege that the parties were very
close relatives, their respective wives being sisters, and that the
complaint to be maintained should allege that earnest efforts towards
a compromise were exerted but failed. Apparently, respondent Judge
considered this deficiency a jurisdictional defect.
On 11 December 1992, Guerrero moved to reconsider the 7 December
1992 Order claiming that since brothers by affinity are not members
of the same family, he was not required to exert efforts towards a
compromise. Guerrero likewise argued that Hernando was precluded
from raising this issue since he did not file a motion to dismiss nor
assert the same as an affirmative defense in his answer.
On 22 December 1992, respondent Judge denied the motion for
reconsideration holding that [f]ailure to allege that earnest efforts
towards a compromise is jurisdictional such that for failure to allege

same the court would be deprived of its jurisdiction to take

cognizance of the case. He warned that unless the complaint was
amended within five (5) days the case would be dismissed.
On 29 January 1993, the 5-day period having expired without
Guerrero amending his complaint, respondent Judge dismissed the
case, declaring the dismissal however to be without prejudice.
Guerrero appeals by way of this petition for review the dismissal by
the court a quo. He raises these legal issues: (a) whether brothers by
affinity are considered members of the same family contemplated in
Art. 217, par. (4), and Art. 222 of the New Civil Code, as well as under
Sec. 1, par. (j), Rule 16, of the Rules of Court requiring earnest efforts
towards a compromise before a suit between them may be instituted
and maintained; and, (b) whether the absence of an allegation in the
complaint that earnest efforts towards a compromise were exerted,
which efforts failed, is a ground for dismissal for lack of jurisdiction.
The Constitution protects the sanctity of the family and endeavors to
strengthen it as a basic autonomous social institution.2 This is also
embodied in Art. 149,3 and given flesh in Art. 151, of the Family Code,
which provides:
Art. 151. No suit between members of the same family shall prosper
unless it should appear from the verified complaint or petition that
earnest efforts toward a compromise have been made, but that the
same have failed. If it is shown that no such efforts were in fact made,
the case must be dismissed.
This rule shall not apply to cases which may not be the subject of
compromise under the Civil Code.
Considering that Art. 151 herein-quoted starts with the negative word
No, the requirement is mandatory4 that the complaint or petition,
which must be verified, should allege that earnest efforts towards a
compromise have been made but that the same failed, so that, [i]f it
is shown that no such efforts were in fact made, the case must be
dismissed.
Further, Art. 151 is complemented by Sec. 1, par. (j), Rule 16, of the
Rules of Court which provides as a ground for a motion to dismiss
(t)hat the suit is between members of the same family and no earnest
efforts towards a compromise have been made.

The Code Commission, which drafted the precursor provision in the

Civil Code, explains the reason for the requirement that earnest
efforts at compromise be first exerted before a complaint is given due
course
This rule is introduced because it is difficult to imagine a sadder and
more tragic spectacle than a litigation between members of the same
family. It is necessary that every effort should be made toward a
compromise before a litigation is allowed to breed hate and passion in
deeper bitterness than between strangers x x x x A litigation in a
family is to be lamented far more than a lawsuit between strangers x x
x x5
But the instant case presents no occasion for the application of the
above-quoted provisions. As early as two decades ago, we already
ruled in Gay on v. Gayon6 that the enumeration of brothers and
sisters as members of the same family does not comprehend sistersin-law. In that case, then Chief Justice Concepcion emphasized that
sisters-in-law (hence, also brothers-in-law) are not listed under
Art. 217 of the New Civil Code as members of the same family. Since
Art. 150 of the Family Code repeats essentially the same enumeration
of members of the family, we find no reason to alter existing
jurisprudence on the matter. Consequently, the court a quo erred in
ruling that petitioner Guerrero, being a brother-in-law of private
respondent Hernando, was required to exert earnest efforts towards a
compromise before filing the present suit.
In his Comment, Hernando argues that x x x x although both wives
of the parties were not impleaded, it remains a truism that being
spouses of the contending parties, and the litigation involves
ownership of real property, the spouses interest and participation in
the land in question cannot be denied, making the suit still a suit
between half-sisters x x x x7
Finding this argument preposterous, Guerrero counters in his Reply
that his wife has no actual interest and participation in the land
subject of the xxx suit, which the petitioner bought, according to his
complaint, before he married his wife.8 This factual controversy
however may be best left to the court a quo to resolve when it resumes
hearing the case.
As regards the second issue, we need only reiterate our ruling in
OLaco v. Co Cho Chit,9 citing Mendoza v. Court of Appeals,10 that the
attempt to compromise as well as the inability to succeed is a
condition precedent to the filing of a suit between members of the

same family, the absence of such allegation in the complaint being

assailable at any stage of the proceeding, even on appeal, for lack of
cause of action.
It is not therefore correct, as petitioner contends, that private
respondent may be deemed to have waived the aforesaid defect in
failing to move to dismiss or raise the same in the Answer. On the
other hand, we cannot sustain the proposition of private respondent
that the case was, after all, also dismissed pursuant to Sec. 3, Rule
17, of the Rules of Court for failure of petitioner to comply with the
courts order to amend his complaint.
A review of the assailed orders does not show any such directive
which Guerrero supposedly defied. The Order of 7 December 1992
merely gave Guerrero five (5) days to file his motion and amended
complaint with a reminder that the complaint failed to allege that
earnest efforts were exerted towards a compromise. The Order of 22
December 1992, which denied Guerreros motion for reconsideration,
simply stated that Plaintiff if it (sic) so desire must amend the
complaint otherwise, the court will have to dismiss the case (italics
supplied) x x x x The Order of 29 January 1993 dismissing the case
without prejudice only made reference to an earlier order
admonishing counsel for Guerrero to amend the complaint, and an
admonition is not synonymous with order. Moreover, since the
assailed orders do not find support in our jurisprudence but, on the
other hand, are based on an erroneous interpretation and application
of the law, petitioner could not be bound to comply with them. 12
WHEREFORE, the petition is GRANTED and the appealed Orders of 7
December 1992, 22 December 1992 and 29 January 1993 are SET
ASIDE. The Regional Trial Court of Laoag City, Branch 16, or
whichever branch of the court the case may now be assigned, is
directed to continue with Civil Case No. 10084-16 with deliberate
dispatch.
SO ORDERED.
Cruz (Chairman), Davide, Jr. and Quiason, JJ., concur.
Petition granted; appealed orders set aside.

10

G.R. No. 154132. August 31, 2006.*

HIYAS SAVINGS and LOAN BANK, INC., petitioner, vs. HON.
EDMUNDO T. ACUA, in his capacity as Pairing Judge of Regional
Trial Court, Branch 122, Caloocan City, and ALBERTO MORENO,
respondent.
Certiorari; At the outset, the Court notes that the instant Petition for
Certiorari should have been filed with the Court of Appeals (CA) and not
with this Court pursuant to the doctrine of hierarchy of courts.The
Court notes that the instant Petition for Certiorari should have been
filed with the Court of Appeals (CA) and not with this Court pursuant
to the doctrine of hierarchy of courts. Reiterating the established
policy for the strict observance of this doctrine, this Court held in
Heirs of Bertuldo Hinog v. Melicor, 455 SCRA 460 (2005), that:
Although the Supreme Court, Court of Appeals and the Regional Trial
Courts have concurrent jurisdiction to issue writs of certiorari,
prohibition, mandamus, quo warranto, habeas corpus and injunction,
such concurrence does not give the petitioner unrestricted freedom of
choice of court forum.
Same; The rationale for this rule is two-fold.The rationale for this
rule is two-fold: (a) it would be an imposition upon the precious time
of this Court; and (b) it would cause an inevitable and resultant delay,
intended or otherwise, in the adjudication of cases, which in some
instances had to be remanded or referred to the lower court as the
proper forum under the rules of procedure, or as better equipped to
resolve the issues because this Court is not a trier of facts.
Same; Exceptional and compelling circumstances were held present in
the following cases.This Court will not entertain direct resort to it
unless the redress desired cannot be obtained in the appropriate
courts, and exceptional and compelling circumstances, such as cases
of national interest and of serious implications, justify the availment
of the extraordinary remedy of writ of certiorari, calling for the exercise
of its primary jurisdiction. Exceptional and compelling circumstances
were held present in the following cases: (a) Chavez vs. Romulo on
citizens right to bear arms; (b) Government of the United States of
America vs. Purganan on bail in extradition proceedings; (c)
Commission on Elections vs. Quijano-Padilla on government contract
involving modernization and computerization of voters registration
list; (d) Buklod ng Kawaning EIIB vs. Zamora on status and existence

of a public office; and (e) Fortich vs. Corona on the so-called Win-Win
Resolution of the Office of the President which modified the approval
of the conversion to agro-industrial area.
Actions; Earnest Efforts; Once a stranger becomes a party to a suit
involving members of the same family, the law no longer makes it a
condition precedent that earnest efforts be made towards a compromise
before the action can prosper.In Magbaleta, the case involved
brothers and a stranger to the family, the alleged owner of the subject
property. The Court, taking into consideration the explanation made
by the Code Commission in its report, ruled that: [T]hese
considerations do not, however, weigh enough to make it imperative
that such efforts to compromise should be a jurisdictional prerequisite for the maintenance of an action whenever a stranger to the
family is a party thereto, whether as a necessary or indispensable
one. It is not always that one who is alien to the family would be
willing to suffer the inconvenience of, much less relish, the delay and
the complications that wranglings between or among relatives more
often than not entail. Besides, it is neither practical nor fair that the
determination of the rights of a stranger to the family who just
happened to have innocently acquired some kind of interest in any
right or property disputed among its members should be made to
depend on the way the latter would settle their differences among
themselves. x x x. Hence, once a stranger becomes a party to a suit
involving members of the same family, the law no longer makes it a
condition precedent that earnest efforts be made towards a
compromise before the action can prosper.
Earnest Efforts; While De Guzman was decided after Magbaleta, the
principle enunciated in the Magbaleta is the one that now prevails.
While De Guzman was decided after Magbaleta, the principle
enunciated in the Magbaleta is the one that now prevails because it is
reiterated in the subsequent cases of Gonzales v. Lopez, Esquivias v.
Court of Appeals, Spouses Hontiveros v. Regional Trial Court, Branch
25, Iloilo City, and the most recent case of Martinez v. Martinez. Thus,
Article 151 of the Family Code applies to cover when the suit is
exclusively between or among family members. The Court finds no
cogent reason why the ruling in Magbaleta as well as in all of the
aforementioned cases should not equally apply to suits involving
husband and wife.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The facts are stated in the opinion of the Court.

11

Maria Norma G. Co for petitioner.

Abigail Azcarraga-Portugal for private respondent.
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for certiorari under Rule 65 of the Rules
of Court seeking to nullify the Orders1 of the Regional Trial Court
(RTC) of Caloocan City, Branch 122, dated November 8, 2001 2 and
May 7, 20023 denying herein petitioners Motion to Dismiss and
Motion for Partial Reconsideration, respectively.
The antecedent facts are as follows:
On November 24, 2000, Alberto Moreno (private respondent) filed with
the RTC of Caloocan City a complaint against Hiyas Savings and Loan
Bank, Inc. (petitioner), his wife Remedios, the spouses Felipe and
Maria Owe and the Register of Deeds of Caloocan City for cancellation
of mortgage contending that he did not secure any loan from
petitioner, nor did he sign or execute any contract of mortgage in its
favor; that his wife, acting in conspiracy with Hiyas and the spouses
Owe, who were the ones that benefited from the loan, made it appear
that he signed the contract of mortgage; that he could not have
executed the said contract because he was then working abroad.4
On May 17, 2001, petitioner filed a Motion to Dismiss on the ground
that private respondent failed to comply with Article 151 of the Family
Code wherein it is provided that no suit between members of the same
family shall prosper unless it should appear from the verified
complaint or petition that earnest efforts toward a compromise have
been made, but that the same have failed. Petitioner contends that
since the complaint does not contain any fact or averment that
earnest efforts toward a compromise had been made prior to its
institution, then the complaint should be dismissed for lack of cause
of action.5
Private respondent filed his Comment on the Motion to Dismiss with
Motion to Strike Out and to Declare Defendants in Default. He argues
that in cases where one of the parties is not a member of the same
family as contemplated under Article 150 of the Family Code, failure
to allege in the complaint that earnest efforts toward a compromise
had been made by the plaintiff before filing the complaint is not a
ground for a motion to dismiss. Alberto asserts that since three of the
party-defendants are not members of his family the ground relied

upon by Hiyas in its Motion to Dismiss is inapplicable and

unavailable. Alberto also prayed that defendants be declared in
default for their failure to file their answer on time. 6
Petitioner filed its Reply to the Comment with Opposition to the
Motion to Strike and to Declare Defendants in Default. 7 Private
respondent, in turn, filed his Rejoinder.8
On November 8, 2001, the RTC issued the first of its assailed Orders
denying the Motion to Dismiss, thus:
The court agrees with plaintiff that earnest efforts towards a
compromise is not required before the filing of the instant case
considering that the above-entitled case involves parties who are
strangers to the family. As aptly pointed out in the cases cited by
plaintiff, Magbaleta v. G[o]nong, L-44903, April 25, 1977 and Mendez
v. [B]iangon, L-32159, October 28, 1977, if one of the parties is a
stranger, failure to allege in the complaint that earnest efforts towards
a compromise had been made by plaintiff before filing the complaint,
is not a ground for motion to dismiss.
Insofar as plaintiffs prayer for declaration of default against
defendants, the same is meritorious only with respect to defendants
Remedios Moreno and the Register of Deeds of Kaloocan City. A
declaration of default against defendant bank is not proper
considering that the filing of the Motion to Dismiss by said defendant
operates to stop the running of the period within which to file the
required Answer.9
Petitioner filed a Motion for Partial Reconsideration.10 Private
respondent filed his Comment,11 after which petitioner filed its
Reply.12 Thereafter, private respondent filed his Rejoinder. 13
On May 7, 2002, the RTC issued the second assailed Order denying
petitioners Motion for Partial Reconsideration. The trial court ruled:
Reiterating the resolution of the court, dated November 8, 2001,
considering that the above-entitled case involves parties who are
strangers to the family, failure to allege in the complaint that earnest
efforts towards a compromise were made by plaintiff, is not a ground
for a Motion to Dismiss.
Additionally, the court agrees with plaintiff that inasmuch as it is
defendant Remedios Moreno who stands to be benefited by Art. 151 of

12

the Family Code, being a member of the same family as that of

plaintiff, only she may invoke said Art. 151. 14
xxx
Hence, the instant Petition for Certiorari on the following grounds:
1. I. Public respondent committed grave abuse of discretion
amounting to lack or in excess of jurisdiction when he ruled
that lack of earnest efforts toward a compromise is not a
ground for a motion to dismiss in suits between husband and
wife when other parties who are strangers to the family are
involved in the suit. Corollarily, public respondent committed
grave abuse of discretion amounting to lack or in excess of
jurisdiction when he applied the decision in the case of
Magbaleta v. Gonong instead of the ruling in the case of De
Guzman v. Genato.
2. II. Public respondent committed grave abuse of discretion
amounting to lack or in excess of jurisdiction when he ruled
that a party who is a stranger to the family of the litigants
could not invoke lack of earnest efforts toward a compromise
as a ground for the dismissal of the complaint. 15
At the outset, the Court notes that the instant Petition for Certiorari
should have been filed with the Court of Appeals (CA) and not with
this Court pursuant to the doctrine of hierarchy of courts. Reiterating
the established policy for the strict observance of this doctrine, this
Court held in Heirs of Bertuldo Hinog v. Melicor16 that:
Although the Supreme Court, Court of Appeals and the Regional Trial
Courts have concurrent jurisdiction to issue writs of certiorari,
prohibition, mandamus, quo warranto, habeas corpus and injunction,
such concurrence does not give the petitioner unrestricted freedom of
choice of court forum. As we stated in People v. Cuaresma:
This Courts original jurisdiction to issue writs of certiorari is not
exclusive. It is shared by this Court with Regional Trial Courts and
with the Court of Appeals. This concurrence of jurisdiction is not,
however, to be taken as according to parties seeking any of the writs
an absolute, unrestrained freedom of choice of the court to which
application therefor will be directed. There is after all a hierarchy of
courts. That hierarchy is determinative of the venue of appeals, and
also serves as a general determinant of the appropriate forum for
petitions for the extraordinary writs. A becoming regard for that

judicial hierarchy most certainly indicates that petitions for the

issuance of extraordinary writs against first level (inferior) courts
should be filed with the Regional Trial Court, and those against the
latter, with the Court of Appeals. A direct invocation of the Supreme
Courts original jurisdiction to issue these writs should be allowed
only when there are special and important reasons therefor, clearly
and specifically set out in the petition. This is [an] established policy.
It is a policy necessary to prevent inordinate demands upon the
Courts time and attention which are better devoted to those matters
within its exclusive jurisdiction, and to prevent further over-crowding
of the Courts docket.
The rationale for this rule is twofold: (a) it would be an imposition
upon the precious time of this Court; and (b) it would cause an
inevitable and resultant delay, intended or otherwise, in the
adjudication of cases, which in some instances had to be remanded or
referred to the lower court as the proper forum under the rules of
procedure, or as better equipped to resolve the issues because this
Court is not a trier of facts.
Thus, this Court will not entertain direct resort to it unless the
redress desired cannot be obtained in the appropriate courts, and
exceptional and compelling circumstances, such as cases of national
interest and of serious implications, justify the availment of the
extraordinary remedy of writ of certiorari, calling for the exercise of its
primary jurisdiction. Exceptional and compelling circumstances were
held present in the following cases: (a) Chavez vs. Romulo on citizens
right to bear arms; (b) Government of the United States of America vs.
Purganan on bail in extradition proceedings; (c) Commission on
Elections vs. Quijano-Padilla on government contract involving
modernization and computerization of voters registration list; (d)
Buklod ng Kawaning EIIB vs. Zamora on status and existence of a
public office; and (e) Fortich vs. Corona on the so-called Win-Win
Resolution of the Office of the President which modified the approval
of the conversion to agro-industrial area.17
In the present case, petitioner failed to advance a satisfactory
explanation as to its failure to comply with the principle of judicial
hierarchy. There is no reason why the instant petition could not have
been brought before the CA. On this basis, the instant petition should
be dismissed.
And even if this Court passes upon the substantial issues raised by
petitioner, the instant petition likewise fails for lack of merit.

13

Restating its arguments in its Motion for Partial Reconsideration,

petitioner argues that what is applicable to the present case is the
Courts decision in De Guzman v. Genato18 and not in Magbaleta v.
Gonong,19 the former being a case involving a husband and wife while
the latter is between brothers.
The Court is not persuaded.
Article 151 of the Family Code provides as follows:
No suit between members of the same family shall prosper unless it
should appear from the verified complaint or petition that earnest
efforts toward a compromise have been made, but that the same have
failed. If it is shown that no such efforts were in fact made, the case
must be dismissed.
This rule shall not apply to cases which may not be the subject of
compromise under the Civil Code.
Article 222 of the Civil Code from which Article 151 of the Family
Code was taken, essentially contains the same provisions, to wit:
No suit shall be filed or maintained between members of the same
family unless it should appear that earnest efforts toward a
compromise have been made, but that the same have failed, subject
to the limitations in Article 2035.20
The Code Commission that drafted Article 222 of the Civil Code from
which Article 151 of the Family Code was taken explains:
[I]t is difficult to imagine a sadder and more tragic spectacle than a
litigation between members of the same family. It is necessary that
every effort should be made toward a compromise before a litigation is
allowed to breed hate and passion in the family. It is known that
alawsuit between close relatives generates deeper bitterness than
between strangers.21
In Magbaleta, the case involved brothers and a stranger to the family,
the alleged owner of the subject property. The Court, taking into
consideration the explanation made by the Code Commission in its
report, ruled that:
[T]hese considerations do not, however, weigh enough to make it
imperative that such efforts to compromise should be a jurisdictional

pre-requisite for the maintenance of an action whenever a stranger to

the family is a party thereto, whether as a necessary or indispensable
one. It is not always that one who is alien to the family would be
willing to suffer the inconvenience of, much less relish, the delay and
the complications that wranglings between or among relatives more
often than not entail. Besides, it is neither practical nor fair that the
determination of the rights of a stranger to the family who just
happened to have innocently acquired some kind of interest in any
right or property disputed among its members should be made to
depend on the way the latter would settle their differences among
themselves.22 x x x.
Hence, once a stranger becomes a party to a suit involving members
of the same family, the law no longer makes it a condition precedent
that earnest efforts be made towards a compromise before the action
can prosper.
In the subsequent case of De Guzman, the case involved spouses and
the alleged paramour of the wife. The Court ruled that due to the
efforts exerted by the husband, through the Philippine Constabulary,
to confront the wife, there was substantial compliance with the law,
thereby implying that even in the presence of a party who is not a
family member, the requirements that earnest efforts towards a
compromise have been exerted must be complied with, pursuant to
Article 222 of the Civil Code, now Article 151 of the Family Code.
While De Guzman was decided after Magbaleta, the principle
enunciated in the Magbaleta is the one that now prevails because it is
reiterated in the subsequent cases of Gonzales v. Lopez,23 Esquivias v.
Court of Appeals,24 Spouses Hontiveros v. Regional Trial Court, Branch
25, Iloilo City,25 and the most recent case of Martinez v. Martinez.26
Thus, Article 151 of the Family Code applies to cover when the suit is
exclusively between or among family members.
The Court finds no cogent reason why the ruling in Magbaleta as well
as in all of the aforementioned cases should not equally apply to suits
involving husband and wife.
Petitioner makes much of the fact that the present case involves a
husband and his wife while Magbaleta is a case between brothers.
However, the Court finds no specific, unique, or special circumstance
that would make the ruling in Magbaleta as well as in the
abovementioned cases inapplicable to suits involving a husband and
his wife, as in the present case. In the first place, Article 151 of the
Family Code and Article 222 of the Civil Code are clear that the

14

provisions therein apply to suits involving members of the same

family as contemplated under Article 150 of the Family Code, to wit:

Note.In an appeal by certiorari under Rule 45 of the Rules of Court,

only questions of law may be raised. (Engreso vs. De la Cruz, 401
SCRA 217 [2003])

ART. 150. Family relations include those:

1.
2.
3.
4.

(1) Between husband and wife;

(2) Between parents and children;
(3) Among other ascendants and descendants; and
(4) Among brothers and sisters, whether of the full or half
blood.

and Article 217 of the Civil Code, to wit:

ART. 217. Family relations shall include those:
1.
2.
3.
4.

(1)
(2)
(3)
(4)

Between husband and wife;

Between parent and child;
Among other ascendants and their descendants;
Among brothers and sisters.

Petitioner also contends that the trial court committed grave abuse of
discretion when it ruled that petitioner, not being a member of the
same family as respondent, may not invoke the provisions of Article
151 of the Family Code.
Suffice it to say that since the Court has ruled that the requirement
under Article 151 of the Family Code is applicable only in cases which
are exclusively between or among members of the same family, it
necessarily follows that the same may be invoked only by a party who
is a member of that same family.
WHEREFORE, the instant Petition for Certiorari is DISMISSED for
lack of merit.
Costs against petitioner.
SO ORDERED.
Panganiban (C.J., Chairperson), Ynares-Santiago, Callejo, Sr. and
Chico-Nazario, JJ., concur.
Petition dismissed.

15

FAMILY HOME
G.R. No. 86355. May 31, 1990.*
JOSE MODEQUILLO, petitioner, vs. HON. AUGUSTO V. BREVA,
FRANCISCO SALINAS, FLORIPER ABELLAN-SALI-NAS, JUANITO
CULAN-CULAN and DEPUTY SHERIFF FERNANDO PLATA,
respondents.
Civil Law; Family Code; Execution; Under the Family Code, a family
home is deemed constituted on a house and lot from the time it is
occupied as a family residence.Under the Family Code, a family
home is deemed constituted on a house and lot from the time it is
occupied as a family residence. There is no need to constitute the
same judicially or extrajudicially as required in the Civil Code. If the
family actually resides in the premises, it is, therefore, a family home
as contemplated by law. Thus, the creditors should take the
necessary precautions to protect their interest before extending credit
to the spouses or head of the family who owns the home.
Same; Same; Same; Same; Exemption is effective from the time of the
constitution of the family home as such and lasts so long as any of its
beneficiaries actually resides therein.The exemption provided as
aforestated is effective from the time of the constitution of the family
home as such, and lasts so long as any of its beneficiaries actually
resides therein.

also govern existing family residences insofar as said provisions are

applicable. It does not mean that Articles 152 and 153 of said Code
have a retroactive effect such that all existing family residences are
deemed to have been constituted as family homes at the time of their
occupation prior to the effectivity of the Family Code and are exempt
from execution for the payment of obligations incurred before the
effectivity of the Family Code. Article 162 simply means that all
existing family residences at the time of the effectivity of the Family
Code, are considered family homes and are prospectively entitled to
the benefits accorded to a family home under the Family Code. Article
162 does not state that the provisions of Chapter 2, Title V have a
retroactive effect.
Same; Same; Same; Same; Case does not fall under the exemptions
from execution provided in the Family Code.Is the family home of
petitioner exempt from execution of the money judgment aforecited?
No. The debt or liability which was the basis of the judgment arose or
was incurred at the time of the vehicular accident on March 16, 1976
and the money judgment arising therefrom was rendered by the
appellate court on January 29, 1988. Both preceded the effectivity of
the Family Code on August 3, 1988. This case does not fall under the
exemptions from execution provided in the Family Code.
PETITION to review the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Brandares-Almazan for petitioner.

Josefina

ABC Law Offices for private respondents.

Same; Same; Same; Same; The residential house and lot of petitioner
was not constituted as a family home whether judicially or
extrajudicially under the Civil Code.In the present case, the
residential house and lot of petitioner was not constituted as a family
home whether judicially or extrajudicially under the Civil Code. It
became a family home by operation of law only under Article 153 of
the Family Code. It is deemed constituted as a family home upon the
effectivity of the Family Code on August 3, 1988 not August 4, one
year after its publication in the Manila Chronicle on August 4, 1987.
Same; Same; Same; Same; Contention that it should be considered a
family home from the time it was occupied by petitioner and his family
in 1969 not well-taken.The contention of petitioner that it should be
considered a family home from the time it was occupied by petitioner
and his family in 1969 is not well-taken. Under Article 162 of the
Family Code, it is provided that the provision of this Chapter shall

GANCAYCO, J.:
The issue in this petition is whether or not a final judgment of the
Court of Appeals in an action for damages may be satisfied by way of
execution of a family home constituted under the Family Code.
The facts are undisputed.
On January 29, 1988, a judgment was rendered by the Court of
Appeals in CA-G.R. CV No. 09218 entitled Francisco Salinas, et al.
vs. Jose Modequillo, et al., the dispositive part of which read as
follows:

16

WHEREFORE, the decision under appeal should be, as it is hereby,

reversed and set aside. Judgment is hereby rendered finding the
defendants-appellees Jose Modequillo and Benito Malubay jointly and
severally liable to plaintiffs-appellants as hereinbelow set forth.
Accordingly, defendants-appellees are ordered to pay jointly and
severally to:
1. 1. Plaintiffs-appellants, the Salinas spouses:
1. a. the amount of P30,000.00 by way of compensation for the
death of their son Audie Salinas;
2. b. P10,000.00 for the loss of earnings by reason of the death of
said Audie Salinas;
3. c. the sum of P5,000.00 as burial expenses of Audie Salinas;
and
4. d. the sum of P5,000.00 by way of moral damages.
1. 2. Plaintiffs-appellants Culan-Culan:
1. a. the sum of P5,000.00 for hospitalization expenses of Renato
Culan-Culan; and
2. b. P5,000.00 for moral damages.
1. 3. Both plaintiffs-appellants Salinas and Culan-Culan,
P7,000.00 for attorneys fees and litigation expenses.
All counterclaims and other claims are hereby dismissed. 1
The said judgment having become final and executory, a writ of
execution was issued by the Regional Trial Court of Davao City to
satisfy the said judgment on the goods and chattels of the defendants
Jose Modequillo and Benito Malubay at Malalag, Davao del Sur.
On July 7, 1988, the sheriff levied on a parcel of residential land
located at Poblacion Malalag, Davao del Sur containing an area of 600
square meters with a market value of P34,550.00 and assessed value
of P7,570.00 per Tax Declaration No. 87-008-01359, registered in the
name of Jose Modequillo in the office of the Provincial Assessor of
Davao del Sur; and a parcel of agricultural land located at Dalagbong,
Bulacan, Malalag, Davao del Sur containing an area of 3 hectares
with a market value of P24,130.00 and assessed value of P9,650.00
per Tax Declaration No. 87-08-01848 registered in the name of Jose
Modequillo in the office of the Provincial Assessor of Davao del Sur. 2

A motion to quash and/or to set aside levy of execution was filed by

defendant Jose Modequillo alleging therein that the residential land
located at Poblacion Malalag is where the family home is built since
1969 prior to the commencement of this case and as such is exempt
from execution, forced sale or attachment under Articles 152 and 153
of the Family Code except for liabilities mentioned in Article 155
thereof; and that the judgment debt sought to be enforced against the
family home of defendant is not one of those enumerated under
Article 155 of the Family Code. As to the agricultural land although it
is declared in the name of defendant it is alleged to be still part of the
public land and the transfer in his favor by the original possessor and
applicant who was a member of a cultural minority was not approved
by the proper government agency. An opposition thereto was filed by
the plaintiffs.
In an order dated August 26, 1988, the trial court denied the motion.
A motion for reconsideration thereof was filed by defendant and this
was denied for lack of merit on September 2, 1988.
Hence, the herein petition for review on certiorari wherein it is alleged
that the trial court erred and acted in excess of its concurred in by
Justices Antonio M. Martinez and Cecilio L. Pe. jurisdiction in denying
petitioners motion to quash and/or to set aside levy on the properties
and in denying petitioners motion for reconsideration of the order
dated August 26, 1988. Petitioner contends that only a question of
law is involved in this petition. He asserts that the residential house
and lot was first occupied as his family residence in 1969 and was
duly constituted as a family home under the Family Code which took
effect on August 4, 1988. Thus, petitioner argues that the said
residential house and lot is exempt from payment of the obligation
enumerated in Article 155 of the Family Code; and that the decision
in this case pertaining to damages arising from a vehicular accident
took place on March 16, 1976 and which became final in 1988 is not
one of those instances enumerated under Article 155 of the Family
Code when the family home may be levied upon and sold on
execution. It is further alleged that the trial court erred in holding
that the said house and lot became a family home only on August 4,
1988 when the Family Code became effective, and that the Family
Code cannot be interpreted in such a way that all family residences
are deemed to have been constituted as family homes at the time of
their occupancy prior to the effectivity of the said Code and that they
are exempt from execution for the payment of obligations incurred
before the effectivity of said Code; and that it also erred when it
declared that Article 162 of the Family Code does not state that the
provisions of Chapter 2, Title V have a retroactive effect.

17

Articles 152 and 153 of the Family Code provide as follows:

Art. 152. The family home, constituted jointly by the husband and
the wife or by an unmarried head of a family, is the dwelling house
where they and their family reside, and the land on which it is
situated.
Art. 153. The family home is deemed constituted on a house and lot
from the time it is occupied as a family residence. From the time of its
constitution and so long as any of its beneficiaries actually resides
therein, the family home continues to be such and is exempt from
execution, forced sale or attachment except as hereinafter provided
and to the extent of the value allowed by law.
Under the Family Code, a family home is deemed constituted on a
house and lot from the time it is occupied as a family residence. There
is no need to constitute the same judicially or extrajudicially as
required in the Civil Code. If the family actually resides in the
premises, it is, therefore, a family home as contemplated by law.
Thus, the creditors should take the necessary precautions to protect
their interest before extending credit to the spouses or head of the
family who owns the home.
Article 155 of the Family Code also provides as follows:
Art. 155. The family home shall be exempt from execution, forced
sale or attachment except:
1. (1) For nonpayment of taxes;
2. (2) For debts incurred prior to the constitution of the family
home;
3. (3) For debts secured by mortgages on the premises before or
after such constitution; and
4. (4) For debts due to laborers, mechanics, architects, builders,
materialmen and others who have rendered service or
furnished material for the construction of the building.
The exemption provided as aforestated is effective from the time of the
constitution of the family home as such, and lasts so long as any of
its beneficiaries actually resides therein.
In the present case, the residential house and lot of petitioner was not
constituted as a family home whether judicially or extrajudicially
under the Civil Code. It became a family home by operation of law

only under Article 153 of the Family Code. It is deemed constituted as

a family home upon the effectivity of the Family Code on August 3,
1988 not August 4, one year after its publication in the Manila
Chronicle on August 4, 1987 (1988 being a leap year).
The contention of petitioner that it should be considered a family
home from the time it was occupied by petitioner and his family in
1969 is not well-taken. Under Article 162 of the Family Code, it is
provided that the provisions of this Chapter shall also govern existing
family residences insofar as said provisions are applicable. It does
not mean that Articles 152 and 153 of said Code have a retroactive
effect such that all existing family residences are deemed to have been
constituted as family homes at the time of their occupation prior to
the effectivity of the Family Code and are exempt from execution for
the payment of obligations incurred before the effectivity of the Family
Code. Article 162 simply means that all existing family residences at
the time of the effectivity of the Family Code, are considered family
homes and are prospectively entitled to the benefits accorded to a
family home under the Family Code. Article 162 does not state that
the provisions of Chapter 2, Title V have a retroactive effect.
Is the family home of petitioner exempt from execution of the money
judgment aforecited? No. The debt or liability which was the basis of
the judgment arose or was incurred at the time of the vehicular
accident on March 16, 1976 and the money judgment arising
therefrom was rendered by the appellate court on January 29, 1988.
Both preceded the effectivity of the Family Code on August 3, 1988.
This case does not fall under the exemptions from execution provided
in the Family Code.
As to the agricultural land subject of the execution, the trial court
correctly ruled that the levy to be made by the sheriff shall be on
whatever rights the petitioner may have on the land.
WHEREFORE, the petition is DISMISSED for lack of merit. No
pronouncement as to costs.
SO ORDERED.
Narvasa (Chairman), Cruz and Medialdea, JJ., concur.
Grio-Aquino, J., On leave.
Petition dismissed.

18

G.R. No. 104875.November 13, 1992.*

FLORANTE F. MANACOP, petitioner, vs. COURT OF APPEALS &
F.F., CRUZ & CO., INC., respondents.
Remedial Law; Provisional Remedy; Attachment; A verified statement
incorporated in the complaint without a separate affidavit is sufficient
and valid to obtain the attachment.Anent the petitioners claim that
the writ of attachment was issued without jurisdiction because of the
lack of supporting affidavit, We subscribe to the recent ruling of the
Highest Tribunal that a verified statement incorporated in the
complaint without a separate affidavit is sufficient and valid to obtain
the attachment (Nasser vs. Court of Appeals, 191 SCRA 783). In the
case at bar, the original as well as the amended complaint filed by
herein private respondent were verified, in substantial compliance
with the requirements of the law.
Same; Same; Same; No principle, statutory or jurisprudential, prohibits
its issuance by any court before acquisition of jurisdiction over the
person of the defendant.A preliminary attachment may be defined,
paraphrasing the Rules of Court, as the provisional remedy in virtue
of which a plaintiff or other proper party may, at the commencement
of the action or at any time thereafter, have the property of the
adverse party taken into the custody of the court as security for the
satisfaction of any judgment that may be recovered. It is a remedy
which is purely statutory in respect of which the law requires a strict
construction of the provisions granting it. Withal no principle,
statutory or jurisprudential, prohibits its issuance by any court before
acquisition of jurisdiction over the person of the defendant.
Same; Same; Same; Rule 57 says quite clearly that after an action is
properly commenced, the plaintiff may apply for and obtain a writ of
preliminary attachment upon fulfillment of the pertinent requisites laid
down by law and that he may do so at any time either before or after
service of summons on the defendant.Rule 57 in fact speaks of the
grant of the remedy at the commencement of the action or any time
thereafter. The phrase, at the commencement of the action,
obviously refers to the date of the filing of the complaintwhich, as
above pointed out, is the date that marks the commencement of the
action; and the reference plainly is to a time before summons is
served on the defendant, or even before summons issues. What the
rule is saying quite clearly is that after an action is properly

commencedby the filing of the complaint and the payment of all

requisite docket and other feesthe plaintiff may apply for and obtain
a writ of preliminary attachment upon fulfillment of the pertinent
requisites laid down by law, and that he may do so at an time, either
before or after service of summons on the defendant. And this indeed,
has been the immemorial practice sanctioned by the courts: for the
plaintiff or other proper party to incorporate the application for
attachment in the complaint or other appropriate pleading
(counterclaim, cross-claim, third-party claim) and for the Trial Court
to issue the writ ex-parte at the commencement of the action if it finds
the application otherwise sufficient in form and substance.
Same; Civil Law; Family Home; The residential house and lot of
petitioner was deemed constituted as a family home upon the effectivity
of the Family Code on August 3, 1988.In the present case, the
residential house and lot of petitioner was not constituted as a family
home whether judicially or extrajudicially under the Civil Code. It
became a family home by operation of law only under Article 153 of
the Family Code. It is deemed constituted as a family home upon the
effectivity of the Family Code on August 3, 1988 not August 4, one
year after its publication in the Manila Chronicle on August 4, 1987.
Same; Same; Same; Contention of petitioner that it should be
considered a family home from the time it was occupied by petitioner
and his family in 1969 is not well-taken.The contention of petitioner
that it should be considered a family home from the time it was
occupied by petitioner and his family in 1969 is not well-taken. Under
Article 162 of the Family Code, it is provided that the provisions of
this Chapter shall also govern existing family residences insofar as
said provisions are applicable. It does not mean that Articles 152 and
153 of said Code have a retroactive effect such that all existing family
residences are deemed to have been constituted as family homes at
the time of their occupation prior to the effectivity of the Family Code
and are exempt from execution for the payment of obligations
incurred before the effectivity of the Family Code. Article 162 simply
means that all existing family residences at the time of the effectivity
of the Family Code, are considered family homes and are prospectively
entitled to the benefits accorded to a family home under the Family
Code. Article 162 does not state that the provisions of Chapter 2, Title
V have a retroactive effect.
Same; Same; Same; This case does not fall under the exemptions from
execution provided in the Family Code.Is the family home of
petitioner exempt from execution of the money judgment aforecited?
No. The debt or liability which was the basis of the judgment arose or

19

was incurred at the time of the vehicular accident on March 16, 1976
and the money judgment arising therefrom was rendered by the
appellate court on January 29, 1988. Both preceded the effectivity of
the Family Code on August 3, 1988. This case does not fall under the
exemptions from execution provided in the Family Code.
PETITION for review from the decision of the Court of Appeals.
Ynares-Santiago,J.
The facts are stated in the opinion of the Court.
Jose F. Manacop for petitioner.
Topacio/Tagoc & Associates for private respondent.
MELO,J.:
Following the dismissal of his petition for certiorari in CA-G.R. SP No.
23651 by the Thirteenth Division of respondent Court (Justice Buena
(P), Gonzaga-Reyes and Abad Santos, Jr., JJ.; Page 60, Rollo),
petitioner airs his concern over the propriety thereof by claiming in
the petition at hand that the disposition, in practical effect, allows a
writ of preliminary attachment issued by the court of origin against
his corporation to be implemented on his family home which is
ordinarily exempt from the mesne process.
Owing to the failure to pay the sub-contract cost pursuant to a deed
of assignment signed between petitioners corporation and private
respondent herein, the latter filed on July 3, 1989, a complaint for a
sum of money, with prayer for preliminary attachment, against the
former. As a consequence of the order on July 28, 1989, the
corresponding writ for the provisional remedy was issued on August
11, 1989 which triggered the attachment of a parcel of land in Quezon
City owned by Manacop Construction President Florante F. Manacop,
herein petitioner.
In lieu of the original complaint, private respondent submitted an
amended complaint on August 18, 1989 intended to substitute
Manacop Construction with Florante F. Manacop as defendant who is
doing business under the name and style of F.F. Manacop
Construction Co., Inc. After the motion for issuance of summons to
the substituted defendant below was granted, petitioner filed his
answer to the amended complaint on November 20, 1989.

Petitioners Omnibus Motion filed on September 5, 1990 grounded on

(1) irregularity that attended the issuance of the disputed writ inspite
the absence of an affidavit therefor; (2) the feasibility of utilizing the
writ prior to his substitution as party-defendant, and (3) exemption
from attachment of his family home (page 3, Petition; page 8, Rollo),
did not merit the serious consideration of the court of origin. This
nonchalant response constrained petitioner to elevate the matter to
respondent court which, as aforesaid, agreed with the trial court on
the strength of the ensuing observations:
Anent the petitioners claim that the writ of attachment was issued
without jurisdiction because of the lack of supporting affidavit, We
subscribe to the recent ruling of the highest Tribunal that a verified
statement incorporated in the complaint without a separate affidavit
is sufficient and valid to obtain the attachment (Nasser vs. Court of
Appeals, 191 SCRA 783). In the case at bar, the original as well as the
amended complaint filed by herein private respondent were verified, in
substantial compliance with the requirements of the law.
Finally, the petitioner insists that the attached property is a family
home, having been occupied by him and his family since 1972, and is
therefore exempt from attachment.
The contention is not well-taken.
While Article 153 of the Family Code provides that the family home is
deemed constituted on a house and lot from the time it is occupied as
a family residence, it does not mean that said article has a retroactive
effect such that all existing family residences, petitioners included,
are deemed to have been constituted as family homes at the time of
their occupation prior to the effectivity of the Family Code and
henceforth, are exempt from execution for the payment of obligations
incurred before the effectivity of the Family Code on August 3, 1988
(Modequillo vs. Breva, 185 SCRA 766). Neither does Article 162 of said
Code state that the provisions of Chapter 2, Title V thereof have
retroactive effect. It simply means that all existing family residences at
the time of the effectivity of the Family Code are considered family
homes and are prospectively entitled to the benefits accorded to a
family home under the Family Code (Modequillo vs. Breva, supra).
Since petitioners debt was incurred as early as November 25, 1987, it
preceded the effectivity of the Family Code. His property is therefore
not exempt from attachment (Annex O, Plaintiffs Position Paper and
Memorandum of Authorities, p. 78). (pp. 5-6, Decision; pp. 64-65,
Rollo)

20

The attempt to reconsider respondent courts stance was to no avail

(page 75, Rollo) hence, the petition at bar.
Did respondent court err in dismissing the challenge posed by
petitioner against the denial of his omnibus motion?
We are not ready to accept the negative aspersions put forward by
petitioner against respondent court in the petition before Us.
Petitioner harps on the supposition that the appellate court should
not have pierced the veil of corporate fiction because he is distinct
from the personality of his corporation and, therefore, the writ of
attachment issued against the corporation cannot be used to place
his own family home in custodia legis. This puerile argument must
suffer rejection since the doctrine in commercial law adverted to and
employed in exculpation by petitioner, during the pendency of his
petition for certiorari in the appellate court and even at this stage,
may not be permitted to simply sprout from nowhere for such subtle
experiment is proscribed by the omnibus motion rule under Section 8,
Rule 15 of the Revised Rules of Court, thus:
A motion attacking a pleading or a proceeding shall include all
objections then available, and all objections not so included shall be
deemed waived.
The spirit that surrounds the foregoing statutory norm is to require
the movant to raise all available exceptions for relief during a single
opportunity so that multiple and piece-meal objections may be
avoided (Rafanan, et al. vs. Rafanan, 98 Phil. 162 [1955]; 1 Martin,
Rules of Court with Notes and Comments, 1989 Rev. Edition, p. 492;
Savit vs. Rodas, 73 Phil. 310 [1941]).
Another mistaken notion entertained by petitioner concerns the
impropriety of issuing the writ of attachment on August 11, 1989
when he was not yet a defendant in this case. This
erroneousperception seems to suggest that jurisdiction over the
person of petitioner, as defendant below, must initially attach before
the provisional remedy involved herein can be requested by a plaintiff.
A contrario, Chief Justice Narvasa obliterated this unfounded
assertion in Davao Light and Power Co., Inc. vs. Court of Appeals (204
SCRA 343 [1991]) whose dissertation on the subject as related and
applied to the present inquiry is quite enlightening:

It is incorrect to theorize that after an action or proceeding has been

commenced and jurisdiction over the person of the plaintiff has been
vested in the court, but before the acquisition of jurisdiction over the
person of the defendant (either by service of summons or his
voluntary submission to the courts authority), nothing can be validly
done by the plaintiff or the court. It is wrong to assume that the
validity of acts done during this period should be dependent on, or
held in suspension until, the actual obtention of jurisdiction over the
defendants person. The obtention by the court of jurisdiction over the
person of the defendant is one thing; quite another is the acquisition
of jurisdiction over the person of the plaintiff or over the subjectmatter or nature of the action, or the res or object thereof.
An action or proceeding is commenced by the filing of the complaint
or other initiatory pleading. By that act, the jurisdiction of the court
over the subject matter or nature of the action or proceeding is
invoked or called into activity, and it is thus that the court acquires
jurisdiction over said subject matter or nature of the action. And it is,
by that self-same act of the plaintiff (or petitioner) of filing the
complaint (or other appropriate pleading)by which he signifies his
submission to the courts power and authoritythat jurisdiction is
acquired by the court over his person. On the other hand, jurisdiction
over the person of the defendant is obtained, as above stated, by the
service of summons or other coercive process upon him or by his
voluntary submission to the authority of the court.
The events that follow the filing of the complaint as a matter of
routine are well known. After the complaint is filed, summons issues
to the defendant, the summons is then transmitted to the sheriff, and
finally, service of the summons is effected on the defendant in any of
the ways authorized by the Rules of Court. There is thus ordinarily
some appreciable interval of time between the day of the filing of the
complaint and the day of service of summons of the defendant.
During this period, different acts may be done by the plaintiff or by
the Court, which are of unquestionable validity and propriety. Among
these, for example, are the appointment of a guardian ad litem, the
grant of authority to the plaintiff to prosecute the suit as a pauper
litigant, the amendment of the complaint by the plaintiff as a matter
of right without leave of court, authorization by the Court of service of
summons by publication, the dismissal of the action by the plaintiff
on mere notice.
This, too, is true with regard to the provisional remedies of
preliminary attachment, preliminary injunction, receivership or

21

replevin. They may be validly and properly applied for and granted
even before the defendant is summoned or is heard from.

for exculpation must be rendered ineffective and barred by the

omnibus motion rule.

A preliminary attachment may be defined, paraphrasing the Rules of

Court, as the provisional remedy in virtue of which a plaintiff or other
proper party may, at the commencement of the action or at any time
thereafter, have the property of the adverse party taken into the
custody of the court as security for the satisfaction of any judgment
that may be recovered. It is a remedy which is purely statutory in
respect of which the law requires a strict construction of the
provisions granting it. Withal no principle, statutory or
jurisprudential, prohibits its issuance by any court before acquisition
of jurisdiction over the person of the defendant.

Lastly, petitioner is of the belief that his abode at Quezon City since
1972 is a family home within the purview of the Family Code and
therefore should not have been subjected to the vexatious writ. Yet,
petitioner must concede that respondent court properly applied the
discussion conveyed by Justice Gancayco in this regard when he
spoke for the First Division of this Court in Modequillo vs. Breva (185
SCRA 766 [1990]) that:

Rule 57 in fact speaks of the grant of the remedy at the

commencement of the action or at any time thereafter. The phrase,
at the commencement of the action, obviously refers to the date of
the filing of the complaintwhich, as above pointed out, is the date
that marks the commencement of the action; and the reference
plainly is to a time before summons is served on the defendant, or
even before summons issues. What the rule is saying quite clearly is
that after an action is properly commencedby the filing of the
complaint and the payment of all requisite docket and other feesthe
plaintiff may apply for and obtain a writ of preliminary attachment
upon fulfillment of the pertinent requisites laid down by law, and that
he may do so at any time, either before or after service of summons on
the defendant. And this indeed, has been the immemorial practice
sanctioned by the courts: for the plaintiff or other proper party to
incorporate the application for attachment in the complaint or other
appropriate pleading (counterclaim, cross-claim, third-party claim)
and for the Trial Court to issue the writ ex-parte at the
commencement of the action if it finds the application otherwise
sufficient in form and substance. (at pp. 347-350.)
Petitioner seeks to capitalize on the legal repercussion that ipso facto
took place when the complaint against him was amended. He proffers
the idea that the extinction of a complaint via a superseding one
carries with it the cessation of the ancillary writ of preliminary
attachment. We could have agreed with petitioner along this line had
he expounded the adverse aftermath of an amended complaint in his
omnibus motion. But the four corners of his motion in this respect
filed on September 5, 1990 are circumscribed by other salient points
set forth by Us relative to the propriety of the assailed writ itself. This
being so, petitioners eleventh hour effort in pressing a crucial factor

Article 155 of the Family Code also provides as follows:

Art.155.The family home shall be exempt from execution, forced sale
or attachment except:
1. (1)For nonpayment of taxes;
2. (2)For debts incurred prior to the constitution of the family
home;
3. (3)For debts secured by mortgages on the premises before or
after such constitution; and
4. (4)For debts due to laborers, mechanics, architects, builders,
materialmen and others who have rendered service or
furnished material for the construction of the building.
The exemption provided as aforestated is effective from the time of
the constitution of the family home as such, and lasts so long as any
of its beneficiaries actually resides therein.
In the present case, the residential house and lot of petitioner was
not constituted as a family home whether judicially or extrajudicially
under the Civil Code. It became a family home by operation of law
only under Article 153 of the Family Code. It is deemed constituted as
a family home upon the effectivity of the Family Code on August 3,
1988 not August 4, one year after its publication in the Manila
Chronicle on August 4, 1987 (1988 being a leap year).
The contention of petitioner that it should be considered a family
home from the time it was occupied by petitioner and his family in
1969 is not well-taken. Under Article 162 of the Family Code, it is
provided that the provisions of this Chapter shall also govern existing
family residences insofar as said provisions are applicable. It does
not mean that Articles 152 and 153 of said Code have a retroactive
effect such that all existing family residences are deemed to have been

22

constituted as family homes at the time of their occupation prior to

the effectivity of the Family Code and are exempt from execution for
the payment of obligations incurred before the effectivity of the Family
Code. Article 162 simply means that all existing family residences at
the time of the effectivity of the Family Code, are considered family
homes and are prospectively entitled to the benefits accorded to a
family home under the Family Code. Article 162 does not state that
the provisions of Chapter 2, Title V have a retroactive effect.
Is the family home of petitioner exempt from execution of the money
judgment aforecited? No. The debt or liability which was the basis of
the judgment arose or was incurred at the time of the vehicular
accident on March 16, 1976 and the money judgment arising
therefrom was rendered by the appellate court on January 29, 1988.
Both preceded the effectivity of the Family Code on August 3, 1988.
This case does not fall under the exemptions from execution provided
in the Family Code. (at pp. 771-772.)
Verily, according to petitioner, his debt was incurred in 1987 or prior
to the effectivity on August 3, 1988 of the Family Code (page 17,
petition; page 22, Rollo). This fact alone will militate heavily against
the so-called exemption by sheer force of exclusion embodied under
paragraph 2, Article 155 of the Family Code cited in Modequillo.
WHEREFORE, the petition is hereby DISMISSED, with costs against
petitioner.
SO ORDERED.
Bidin, Davide, Jr. and Romero, JJ., concur.
Gutierrez, Jr., J., I concur on the understanding that the writ of
attachment may issue as above stated but the defendant is bound
only upon service of summons.
Petition dismissed.
Note.A writ of attachment may be ordered issued even exparte
provided that there is compliance with Section 3 of Rule 57 of the
Rules of Court (Consolidated Bank and Trust Corporation vs. Court of
Appeals, 197 SCRA 663).

23

G.R. No. 170829. November 20, 2006.*

PERLA G. PATRICIO, petitioner, vs. MARCELINO G. DARIO III and
THE HONORABLE COURT OF APPEALS, Second Division,
respondents.
Civil Law; Family Home; The family home is deemed constituted from
the time it is occupied as a family residence.The family home is a
sacred symbol of family love and is the repository of cherished
memories that last during ones lifetime. It is the dwelling house
where husband and wife, or by an unmarried head of a family, reside,
including the land on which it is situated. It is constituted jointly by
the husband and the wife or by an unmarried head of a family. The
family home is deemed constituted from the time it is occupied as a
family residence. From the time of its constitution and so long as any
of its beneficiaries actually resides therein, the family home continues
to be such and is exempt from execution, forced sale or attachment
except as hereinafter provided and to the extent of the value allowed
by law.
Same; Same; Occupancy of the family home either by the owner thereof
or by any of its beneficiaries must be actual.The law explicitly
provides that occupancy of the family home either by the owner
thereof or by any of its beneficiaries must be actual. That which is
actual is something real, or actually existing, as opposed to
something merely possible, or to something which is presumptive or
constructive. Actual occupancy, however, need not be by the owner of
the house specifically. Rather, the property may be occupied by the
beneficiaries enumerated in Article 154 of the Family Code, which
may include the in-laws where the family home is constituted jointly
by the husband and wife. But the law definitely excludes maids and
overseers. They are not the beneficiaries contemplated by the Code.
Same; Same; Beneficiaries of a family home enumerated in Article 154
of the Family Code; Requisites to be a beneficiary of the family home.
Article 154 of the Family Code enumerates who are the beneficiaries
of a family home: (1) The husband and wife, or an unmarried person
who is the head of a family; and (2) Their parents, ascendants,
descendants, brothers and sisters, whether the relationship be
legitimate or illegitimate, who are living in the family home and who
depend upon the head of the family for legal support. To be a
beneficiary of the family home, three requisites must concur: (1) they

must be among the relationships enumerated in Art. 154 of the

Family Code; (2) they live in the family home; and (3) they are
dependent for legal support upon the head of the family.
Same; Same; The family home shall continue despite the death of one
or both spouses or of the unmarried head of the family for a period of
10 years or for as long as there is a minor beneficiary, and the heirs
cannot partition the same unless the court finds compelling reasons
therefor; Rule shall apply regardless of whoever owns the property or
constituted the family home.Moreover, Article 159 of the Family Code
provides that the family home shall continue despite the death of one
or both spouses or of the unmarried head of the family for a period of
10 years or for as long as there is a minor beneficiary, and the heirs
cannot partition the same unless the court finds compelling reasons
therefor. This rule shall apply regardless of whoever owns the
property or constituted the family home.
Same; Same; Words and Phrases; Legal Support; Characteristics of
legal support.Legal support, also known as family support, is that
which is provided by law, comprising everything indispensable for
sustenance, dwelling, clothing, medical attendance, education and
transportation, in keeping with the financial capacity of the family.
Legal support has the following characteristics: (1) It is personal,
based on family ties which bind the obligor and the obligee; (2) It is
intransmissible; (3) It cannot be renounced; (4) It cannot be
compromised; (5) It is free from attachment or execution; (6) It is
reciprocal; (7) It is variable in amount.
Same; Property; Co-ownership; Partition; No co-owner ought to be
compelled to stay in a co-ownership indefinitely, and may insist on
partition on the common property at any time; An action to demand
partition is imprescriptible or cannot be barred by laches.The law
does not encourage co-ownerships among individuals as oftentimes it
results in inequitable situations such as in the instant case.
Coowners should be afforded every available opportunity to divide
their co-owned property to prevent these situations from arising. As
we ruled in Santos v. Santos, 342 SCRA 753 (2000), no co-owner
ought to be compelled to stay in a co-ownership indefinitely, and may
insist on partition on the common property at any time. An action to
demand partition is imprescriptible or cannot be barred by laches.
Each co-owner may demand at any time the partition of the common
property.
Same; Same; Same; Same; An action for partition is at once an action
for declaration of co-ownership and for segregation and conveyance of

24

a determinate portion of the properties involved.In Vda. de Daffon v.

Court of Appeals, 387 SCRA 427 (2002), we held that an action for
partition is at once an action for declaration of coownership and for
segregation and conveyance of a determinate portion of the properties
involved. If the court after trial should find the existence of coownership among the parties, the court may and should order the
partition of the properties in the same action.
PETITION for review on certiorari of a resolution of the Court of
Appeals.

Thereafter, petitioner and Marcelino Marc formally advised private

respondent of their intention to partition the subject property and
terminate the co-ownership. Private respondent refused to partition
the property hence petitioner and Marcelino Marc instituted an action
for partition before the Regional Trial Court of Quezon City which was
docketed as Civil Case No. Q-01-44038 and raffled to Branch 78.
On October 3, 2002,3 the trial court ordered the partition of the
subject property in the following manner: Perla G. Patricio, 4/6;
Marcelino Marc G. Dario, 1/6; and Marcelino G. Dario III, 1/6. The
trial court also ordered the sale of the property by public auction
wherein all parties concerned may put up their bids. In case of failure,
the subject property should be distributed accordingly in the
aforestated manner.4

The facts are stated in the opinion of the Court.

Ma. Patricia S. EncarnacionForia for petitioner.
441
VOL. 507, NOVEMBER 20, 2006
Patricio vs. Dario III

R-213963 was issued in the names of petitioner, private respondent

and Marcelino Marc.

441

Yee Law Office for respondent.

YNARES-SANTIAGO, J.:
This petition for review on certiorari under Rule 45 of the Rules of
Court seeks to annul and set aside the Resolution of the Court of
Appeals dated December 9, 20051 in CA-G.R. CV No. 80680, which
dismissed the complaint for partition filed by petitioner for being
contrary to law and evidence.
On July 5, 1987, Marcelino V. Dario died intestate. He was survived
by his wife, petitioner Perla G. Patricio and their two sons, Marcelino
Marc Dario and private respondent Marcelino G. Dario III. Among the
properties he left was a parcel of land with a residential house and a
pre-school building built thereon situated at 91 Oxford corner Ermin
Garcia Streets in Cubao, Quezon City, as evidenced by Transfer
Certificate of Title (TCT) No. RT-30731 (175992) of the Quezon City
Registry of Deeds, covering an area of seven hundred fifty five (755)
square meters, more or less.2
On August 10, 1987, petitioner, Marcelino Marc and private
respondent, extrajudicially settled the estate of Marcelino V. Dario.
Accordingly, TCT No. RT-30731 (175992) was cancelled and TCT No.

Private respondent filed a motion for reconsideration which was

denied by the trial court on August 11, 2003, 5 hence he appealed
before the Court of Appeals, which denied the same on October 19,
2005. However, upon a motion for reconsideration filed by private
respondent on December 9, 2005, the appellate court partially
reconsidered the October 19, 2005 Decision. In the now assailed
Resolution, the Court of Appeals dismissed the complaint for partition
filed by petitioner and Marcelino Marc for lack of merit. It held that
the family home should continue despite the death of one or both
spouses as long as there is a minor beneficiary thereof. The heirs
could not partition the property unless the court found compelling
reasons to rule otherwise. The appellate court also held that the
minor son of private respondent, who is a grandson of spouses
Marcelino V. Dario and Perla G. Patricio, was a minor beneficiary of
the family home.6
Hence, the instant petition on the following issues:
I.
THE HONORABLE COURT OF APPEALS PATENTLY ERRED IN
REVERSING ITS EARLIER DECISION OF OCTOBER 19, 2005 WHICH
AFFIRMED IN TOTO THE DECISION OF THE TRIAL COURT DATED
03 OCTOBER 2002 GRANTING THE PARTITION AND SALE BY
PUBLIC AUCTION OF THE SUBJECT PROPERTY.

25

II.
COROLLARILY, THE HONORABLE COURT OF APPEALS PATENTLY
ERRED IN APPLYING ARTICLE 159 IN RELATION TO ARTICLE 154
OF THE FAMILY CODE ON FAMILY HOME INSTEAD OF ARTICLE
494 IN RELATION TO ARTICLES 495 AND 498 OF THE NEW CIVIL
CODE ON CO-OWNERSHIP.7
The sole issue is whether partition of the family home is proper where
one of the co-owners refuse to accede to such partition on the ground
that a minor beneficiary still resides in the said home.

The law explicitly provides that occupancy of the family home either
by the owner thereof or by any of its beneficiaries must be actual.
That which is actual is something real, or actually existing, as
opposed to something merely possible, or to something which is
presumptive or constructive. Actual occupancy, however, need not be
by the owner of the house specifically. Rather, the property may be
occupied by the beneficiaries enumerated in Article 154 of the
Family Code, which may include the in-laws where the family home is
constituted jointly by the husband and wife. But the law definitely
excludes maids and overseers. They are not the beneficiaries
contemplated by the Code.13

Private respondent claims that the subject property which is the

family home duly constituted by spouses Marcelino and Perla Dario
cannot be partitioned while a minor beneficiary is still living therein
namely, his 12-year-old son, who is the grandson of the decedent. He
argues that as long as the minor is living in the family home, the
same continues as such until the beneficiary becomes of age. Private
respondent insists that even after the expiration of ten years from the
date of death of Marcelino on July 5, 1987, i.e., even after July 1997,
the subject property continues to be considered as the family home
considering that his minor son, Marcelino Lorenzo R. Dario IV, who is
a beneficiary of the said family home, still resides in the premises.

Article 154 of the Family Code enumerates who are the beneficiaries
of a family home: (1) The husband and wife, or an unmarried person
who is the head of a family; and (2) Their parents, ascendants,
descendants, brothers and sisters, whether the relationship be
legitimate or illegitimate, who are living in the family home and who
depend upon the head of the family for legal support.

On the other hand, petitioner alleges that the subject property

remained as a family home of the surviving heirs of the late Marcelino
V. Dario only up to July 5, 1997, which was the 10th year from the
date of death of the decedent. Petitioner argues that the brothers
Marcelino Marc and private respondent Marcelino III were already of
age at the time of the death of their father, 8 hence there is no more
minor beneficiary to speak of.

Moreover, Article 159 of the Family Code provides that the family
home shall continue despite the death of one or both spouses or of
the unmarried head of the family for a period of 10 years or for as
long as there is a minor beneficiary, and the heirs cannot partition the
same unless the court finds compelling reasons therefor. This rule
shall apply regardless of whoever owns the property or constituted the
family home.

The family home is a sacred symbol of family love and is the

repository of cherished memories that last during ones lifetime. 9 It is
the dwelling house where husband and wife, or by an unmarried head
of a family, reside, including the land on which it is situated. 10 It is
constituted jointly by the husband and the wife or by an unmarried
head of a family.11 The family home is deemed constituted from the
time it is occupied as a family residence. From the time of its
constitution and so long as any of its beneficiaries actually resides
therein, the family home continues to be such and is exempt from
execution, forced sale or attachment except as hereinafter provided
and to the extent of the value allowed by law. 12

Article 159 of the Family Code applies in situations where death

occurs to persons who constituted the family home. Dr. Arturo M.
Tolentino comments on the effect of death of one or both spouses or
the unmarried head of a family on the continuing existence of the
family home:

To be a beneficiary of the family home, three requisites must concur:

(1) they must be among the relationships enumerated in Art. 154 of
the Family Code; (2) they live in the family home; and (3) they are
dependent for legal support upon the head of the family.

Upon the death of the spouses or the unmarried family head who
constituted the family home, or of the spouse who consented to the
constitution of his or her separate property as family home, the
property will remain as family home for ten years or for as long as
there is a minor beneficiary living in it. If there is no more
beneficiary left at the time of death, we believe the family home
will be dissolved or cease, because there is no more reason for

26

its existence. If there are beneficiaries who survive living in the

family home, it will continue for ten years, unless at the
expiration of the ten years, there is still a minor beneficiary, in
which case the family home continues until that beneficiary
becomes of age.
After these periods lapse, the property may be partitioned by the
heirs. May the heirs who are beneficiaries of the family home keep it
intact by not partitioning the property after the period provided by
this article? We believe that although the heirs will continue in
ownership by not partitioning the property, it will cease to be a
family home.14 (Emphasis supplied)
Prof. Ernesto L. Pineda further explains the import of Art. 159 in this
manner:
The family home shall continue to exist despite the death of one or
both spouses or of the unmarried head of the family. Thereafter, the
length of its continued existence is dependent upon whether there
is still a minor-beneficiary residing therein. For as long as there
is one beneficiary even if the head of the family or both spouses
are already dead, the family home will continue to exist (Arts.
153, 159). If there is no minorbeneficiary, it will subsist until 10
years and within this period, the heirs cannot partition the
same except when there are compelling reasons which will
justify the partition. This rule applies regardless of whoever owns
the property or who constituted the family home.15 (Emphasis
supplied)
The rule in Article 159 of the Family Code may thus be expressed in
this wise: If there are beneficiaries who survive and are living in the
family home, it will continue for 10 years, unless at the expiration of
10 years, there is still a minor beneficiary, in which case the family
home continues until that beneficiary becomes of age.
It may be deduced from the view of Dr. Tolentino that as a general
rule, the family home may be preserved for a minimum of 10 years
following the death of the spouses or the unmarried family head who
constituted the family home, or of the spouse who consented to the
constitution of his or her separate property as family home. After 10
years and a minor beneficiary still lives therein, the family home shall
be preserved only until that minor beneficiary reaches the age of
majority. The intention of the law is to safeguard and protect the
interests of the minor beneficiary until he reaches legal age and would
now be capable of supporting himself. However, three requisites must

concur before a minor beneficiary is entitled to the benefits of Art. 159:

(1) the relationship enumerated in Art. 154 of the Family Code; (2) they
live in the family home, and (3) they are dependent for legal support
upon the head of the family.
Thus, the issue for resolution now is whether Marcelino Lorenzo R.
Dario IV, the minor son of private respondent, can be considered as a
beneficiary under Article 154 of the Family Code.
As to the first requisite, the beneficiaries of the family home are: (1)
The husband and wife, or an unmarried person who is the head of a
family; and (2) Their parents, ascendants, descendants, brothers and
sisters, whether the relationship be legitimate or illegitimate. The term
descendants contemplates all descendants of the person or persons
who constituted the family home without distinction; hence, it must
necessarily include the grandchildren and great grandchildren of the
spouses who constitute a family home. Ubi lex non distinguit nec nos
distinguire debemos. Where the law does not distinguish, we should
not distinguish. Thus, private respondents minor son, who is also the
grandchild of deceased Marcelino V. Dario satisfies the first requisite.
As to the second requisite, minor beneficiaries must be actually living
in the family home to avail of the benefits derived from Art. 159.
Marcelino Lorenzo R. Dario IV, also known as Ino, the son of private
respondent and grandson of the decedent Marcelino V. Dario, has
been living in the family home since 1994, or within 10 years from the
death of the decedent, hence, he satisfies the second requisite.
However, as to the third requisite, Marcelino Lorenzo R. Dario IV
cannot demand support from his paternal grandmother if he has
parents who are capable of supporting him. The liability for legal
support falls primarily on Marcelino Lorenzo R. Dario IVs parents,
especially his father, herein private respondent who is the head of his
immediate family. The law first imposes the obligation of legal support
upon the shoulders of the parents, especially the father, and only in
their default is the obligation imposed on the grandparents.
Marcelino Lorenzo R. Dario IV is dependent on legal support not from
his grandmother, but from his father. Thus, despite residing in the
family home and his being a descendant of Marcelino V. Dario,
Marcelino Lorenzo R. Dario IV cannot be considered as beneficiary
contemplated under Article 154 because he did not fulfill the third
requisite of being dependent on his grandmother for legal support. It
is his father whom he is dependent on legal support, and who must

27

now establish his own family home separate and distinct from that of
his parents, being of legal age.
Legal support, also known as family support, is that which is provided
by law, comprising everything indispensable for sustenance, dwelling,
clothing, medical attendance, education and transportation, in
keeping with the financial capacity of the family. 16 Legal support has
the following characteristics: (1) It is personal, based on family ties
which bind the obligor and the obligee; (2) It is intransmissible; (3) It
cannot be renounced; (4) It cannot be compromised; (5) It is free from
attachment or execution; (6) It is reciprocal; (7) It is variable in
amount.17
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.
199.18 We agree with this view.
The reasons behind Art. 199 as explained by Pineda and Tolentino:
the closer the relationship of the relatives, the stronger the tie that
binds them. Thus, the obligation to support under Art. 199 which
outlines the order of liability for 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.
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
grandsons legal support. On the contrary, herein petitioner filed for
the partition of the property which shows an intention to dissolve the
family home, since there is no more reason for its existence after the
10-year period ended in 1997.
With this finding, there is no legal impediment to partition the subject
property.
The law does not encourage co-ownerships among individuals as
oftentimes it results in inequitable situations such as in the instant
case. Co-owners should be afforded every available opportunity to
divide their co-owned property to prevent these situations from
arising.

As we ruled in Santos v. Santos,19 no co-owner ought to be compelled

to stay in a co-ownership indefinitely, and may insist on partition on
the common property at any time. An action to demand partition is
imprescriptible or cannot be barred by laches. Each co-owner may
demand at any time the partition of the common property. 20
Since the parties were unable to agree on a partition, the court a quo
should have ordered a partition by commissioners pursuant to
Section 3, Rule 69 of the Rules of Court. Not more than three
competent and disinterested persons should be appointed as
commissioners to make the partition, commanding them to set off to
the plaintiff and to each party in interest such part and proportion of
the property as the court shall direct.
When it is made to appear to the commissioners that the real estate,
or a portion thereof, cannot be divided without great prejudice to the
interest of the parties, the court may order it assigned to one of the
parties willing to take the same, provided he pays to the other parties
such sum or sums of money as the commissioners deem equitable,
unless one of the parties interested ask that the property be sold
instead of being so assigned, in which case the court shall order the
commissioners to sell the real estate at public sale, and the
commissioners shall sell the same accordingly.21
The partition of the subject property should be made in accordance
with the rule embodied in Art. 996 of the Civil Code. 22 Under the law
of intestate succession, if the widow and legitimate children survive,
the widow has the same share as that of each of the children.
However, since only onehalf of the conjugal property which is owned
by the decedent is to be allocated to the legal and compulsory heirs
(the other half to be given exclusively to the surviving spouse as her
conjugal share of the property), the widow will have the same share as
each of her two surviving children. Hence, the respective shares of the
subject property, based on the law on intestate succession are: (1)
Perla Generosa Dario, 4/6; (2) Marcelino Marc G. Dario II, 1/6 and (3)
Marcelino G. Dario III, 1/6.
In Vda. de Daffon v. Court of Appeals,23 we held that an action for
partition is at once an action for declaration of coownership and for
segregation and conveyance of a determinate portion of the properties
involved. If the court after trial should find the existence of coownership among the parties, the court may and should order the
partition of the properties in the same action. 24

28

WHEREFORE, the petition is GRANTED. The Resolution of the Court

of Appeals in CA-G.R. CV No. 80680 dated December 9, 2005, is
REVERSED and SET ASIDE. The case is REMANDED to the Regional
Trial Court of Quezon City, Branch 78, who is directed to conduct a
PARTITION BY COMMISSIONERS and effect the actual physical
partition of the subject property, as well as the improvements that lie
therein, in the following manner: Perla G. Dario, 4/6; Marcelino Marc
G. Dario, 1/6 and Marcelino G. Dario III, 1/6. The trial court is
DIRECTED to appoint not more than three (3) competent and
disinterested persons, who should determine the technical metes and
bounds of the property and the proper share appertaining to each
heir, including the improvements, in accordance with Rule 69 of the
Rules of Court. When it is made to the commissioners that the real
estate, or a portion thereof, cannot be divided without great prejudice
to the interest of the parties, the court a quo may order it assigned to
one of the parties willing to take the same, provided he pays to the
other parties such sum or sums of money as the commissioners deem
equitable, unless one of the parties interested ask that the property be
sold instead of being so assigned, in which case the court shall order
the commissioners to sell the real estate at public sale, and the
commissioners shall sell the same accordingly, and thereafter
distribute the proceeds of the sale appertaining to the just share of
each heir. No pronouncement as to costs.
SO ORDERED.
Panganiban (C.J., Chairperson), Austria-Martinez, Callejo, Sr. and
Chico-Nazario, JJ., concur.
Petition granted, resolution reversed and set aside. Case remanded to
trial court.
Note.In a complaint for partition, the plaintiff seeks, first, a
declaration that he is a co-owner of the subject properties, and,
second, the conveyance of his lawful share. (Vda. de Daffon vs. Court
of Appeals, 387 SCRA 427 [2002])

29

Tible, Tena & Borja for appellees.

PATERNITY AND FILIATION
[No. L-2474. May 30, 1951]
MARIANO ANDAL, assisted by his mother Maria Dueas as
guardian ad litem, and MARIA DUEAS, plaintiffs vs. EDUVIGIS
MACARAIG, defendant.
1. 1.
PARENT
AND
CHILD;
LEGITIMATE
CHILDREN;
PRESUMPTION.Husband died on January 1, 1943. The boy
whose legitimacy is in question was born on June 17, 1943.
Held: That boy is presumed to be the legitimate son of said
husband and his wife, he having been born within three
hundred days following the dissolution of the marriage. That
presumption can only be rebutted by proof that it was
physically impossible for the husband to have had access to
his wife during the first 120 days of the 300 next preceding the
birth of the child. The fact that the wife has committed
adultery cannot overcome this presumption.
1. 2. ID.; ID.; PRESUMPTION OF LEGITIMACY UPHELD;
TUBERCULOSIS
DOES
NOT
PREVENT
CARNAL
INTERCOURSE.Although the husband was already suffering
from tuberculosis and his condition then was so serious that
he could hardly move and get up from his bed, his feet were
swollen and his voice hoarse, yet that is no evidence of
impotency, nor does it prevent carnal intercourse. There are
cases where persons suffering from this sickness can do the
carnal act even in the most crucial stage because they are
more inclined to sexual intercourse. As an author has said,
"the reputation of the tuberculous towards eroticism (sexual
propensity) is probably dependent more upon confinement to
bed than the consequences of the disease." (An Integrated
Practice to Medicine, by Hyman, Vol. 3, p. 2202.)
APPEAL from a judgment of the Court of First Instance of Camarines
Sur. Palacio, J.

BAUTISTA ANGELO, J.:

Mariano Andal, a minor, assisted by his mother Maria Dueas, as
guardian ad litem, brought an action in the Court of First Instance of
Camarines Sur for the recovery of the ownership and possession of a
parcel of land situated in the barrio of Talacop, Calabanga, Camarines
Sur.
The complaint alleges that Mariano Andal is the surviving son of
Emiliano Andal and Maria Dueas; that Emiliano Andal died on
September 24, 1942; that Emiliano Andal was the owner of the parcel
of land in question having acquired it from his mother Eduvigis
Macaraig by virtue of a donation propter nuptias executed by the latter
in favor of the former; that Emiliano Andal had been in possession of
the land from 1938 up to 1942, when Eduvigis Macaraig, taking
advantage of the abnormal situation then prevailing, entered the land
in question.
The lower court rendered judgment in favor of the plaintiffs (a)
declaring Mariano Andal the legitimate son of Emiliano Andal and as
such entitled to inherit the land in question; (b) declaring Mariano
Andal owner of said land; and (c) ordering the defendant to pay the
costs of suit. Defendant took the case to this Court upon the plea that
only questions of law are involved.
It appears undisputed that the land in question was given by Eduvigis
Macaraig to her son Emiliano Andal by virtue of a donation propter
nuptias she has executed in his favor on the occasion of his marriage
to Maria Dueas. If the son born to the couple is deemed legitimate,
then he is entitled to inherit the land in question. If otherwise, then
the land should revert back to Eduvigis Macaraig as the next of kin
entitled to succeed him under the law. The main issue, therefore, to
be determined hinges on the legitimacy of Mariano Andal in so far as
his relation to Emiliano Andal is concerned. The determination of this
issue much depends upon the relationship that had existed between
Emiliano Andal and his wife during the period of conception of the
child up to the date of his birth in connection with the death of the
alleged father Emiliano Andal.

The facts are stated in the opinion of the Court.

Reyes & Dy-Liaco for appellants.

The following facts appear to have been proven: Emiliano Andal

became sick of tuberculosis in January 1941. Sometime thereafter,
his brother, Felix, went to live in his house to help him work his farm.

30

His sickness became worse that on or about September 10, 1942, he

became so weak that he could hardly move and get up from his bed.
On September 10, 1942, Maria Dueas, his wife, eloped with Felix,
and both went to live in the house of Maria's father, until the middle
of 1943. Since May, 1942, Felix and Maria had sexual intercourse and
treated each other as husband and wife. On January 1, 1943,
Emiliano died without the presence of his wife, who did not even
attend his funeral. On June 17, 1943, Maria Dueas gave birth to a
boy, who was given the name of Mariano Andal. Under these facts,
can the child be considered as the legitimate son of Emiliano?
Article 108 of the Civil Code provides:
"Children born after the one hundred and eighty days next following
that of the celebration of marriage or within the three hundred days
next following its dissolution or the separation of the spouses shall be
presumed to be legitimate.
"This presumption may be rebutted only by proof that it was
physically impossible for the husband to have had access to his wife
during the first one hundred and twenty days of the three hundred
next preceding the birth of the child."
Since the boy was born on June 17, 1943, and Emiliano Andal died
on January 1, 1943, that boy is presumed to be the legitimate son of
Emiliano and his wife, he having been born within three hundred
(300) days following the dissolution of the marriage. This presumption
can only be rebutted by proof that it was physically impossible for the
husband to have had access to his wife during the first 120 days of
the 300 next preceding the birth of the child. Is there any evidence to
prove that it was physically impossible for Emiliano to have such
access? Is the fact that Emiliano was sick of tuberculosis and was so
weak that he could hardly move and get up from his bed sufficient to
overcome this presumption?
Manresa on this point says:
"Impossibility of access by husband to wife would include (1) absence
during the initial period of conception, (2) impotence which is patent,
continuing and incurable, and (3) imprisonment, unless it can be
shown that cohabitation took place through corrupt violation of
prison regulations." Manresa, 492-500, Vol. I, cited by Dr. Arturo
Tolentino in his book "Commentaries and Jurisprudence on the Civil
Code, Vol. 1, p. 90)."

There was no evidence presented that Emiliano Andal was absent

during the initial period of conception, specially during the period
comprised between August 21, 1942 and September 10, 1942, which
is included in the 120 days of the 300 next preceding the birth of the
child Mariano Andal. On the contrary, there is enough evidence to
show that during that initial period, Emiliano Andal and his wife were
still living under the marital roof. Even if Felix, the brother, was living
in the same house, and he and the wife were indulging in illicit
intercourse since May, 1942, that does not preclude cohabitation
between Emiliano and his wife. We admit that Emiliano was already
suffering from tuberculosis and his condition then was so serious that
he could hardly move and get up from his bed, his feet were swollen
and his voice hoarse. But experience shows that this does not prevent
carnal intercourse. There are cases where persons suffering from this
sickness can do the carnal act even in the most crucial stage because
they are more inclined to sexual intercourse. As an author has said,
"the reputation of the tuberculous towards eroticism (sexual
propensity) is probably dependent more upon confinement to bed
than the consequences of the disease." (An Integrated Practice of
Medicine, by Hyman, Vol. 3, p. 2202). There is neither evidence to
show that Emiliano was suffering from impotency, patent, continuous
and incurable, nor was there evidence that he was imprisoned. The
presumption of legitimacy under the Civil Code in favor of the child
has not, therefore, been overcome.
We can obtain the same result viewing this case under section 68,
par. (c) of Rule 123, of the Rules of Court, which is practically based
upon the same rai'son d'etre underlying the Civil Code. Said section
provides:
"The issue of a wife cohabiting with the husband who is not impotent,
is indisputably presumed to be legitimate, if not born within one
hundred eighty days immediately succeeding the marriage, or after
the expiration of three hundred days following its dissolution."
We have already seen that Emiliano and his wife were living together,
or at least had access one to the other, and Emiliano was not
impotent, and the child was born within three hundred (300) days
following the dissolution of the marriage. Under these facts no other
presumption can be drawn than that the issue is legitimate. We have
also seen that this presumption can only be rebutted by clear proof
that it was physically or naturally impossible for them to indulge in
carnal intercourse. And here there is no such proof. The fact that
Maria Dueas has committed adultery can not also overcome this

31

presumption (Tolentino's Commentaries on the Civil Code, Vol. I, p.

92).
In view of all the foregoing, we are constrained to hold that the lower
court did not err in declaring Mariano
170
170
PHILIPPINE REPORTS ANNOTATED
People vs. Diwa
Andal as the legitimate son of the spouses Emiliano Andal and Maria
Dueas.
Wherefore, the decision appealed
pronouncement as to costs.

from

is

affirmed,

without

Pars, C. J., Feria, Pablo, Tuason, Montemayor, Reyes and Jugo, JJ.,
concur.
Judgment affirmed.

32

G.R. No. 138493. June 15, 2000.*

TEOFISTA BABIERA, petitioner, vs. PRESENTACION B. CATOTAL,
respondent.
Actions; Filiation; Parties; Real Parties in Interest; A legitimate child has
the requisite standing to initiate an action to cancel the birth certificate
of one claiming to be a child of the formers mother.Petitioner
contends that respondent has no standing to sue, because Article 171
of the Family Code states that the childs filiation can be impugned
only by the father or, in special circumstances, his heirs. She adds
that the legitimacy of a child is not subject to a collateral attack. This
argument is incorrect. Respondent has the requisite standing to
initiate the present action. Section 2, Rule 3 of the Rules of Court,
provides that a real party in interest is one who stands to be
benefited or injured by the judgment in the suit, or the party entitled
to the avails of the suit. The interest of respondent in the civil status
of petitioner stems from an action for partition which the latter filed
against the former. The case concerned the properties inherited by
respondent from her parents.
Same; Same; Family Code; Article 171 of the Family Code applies to
instances in which the father impugns the legitimacy of his wifes child,
i.e., to declare that such child is an illegitimate child, but not to an
action to establish that such child is not the wifes child at all.Article
171 of the Family Code is not applicable to the present case. A close
reading of this provision shows that it applies to instances in which
the father impugns the legitimacy of his wifes child. The provision,
however, presupposes that the child was the undisputed offspring of
the mother. The present case alleges and shows that Hermogena did
not give birth to petitioner. In other words, the prayer herein is not to
declare that petitioner is an illegitimate child of Hermogena, but to
establish that the former is not the latters child at all. Verily, the
present action does not impugn petitioners filiation to Spouses
Eugenio and Hermogena Babiera, because there is no blood relation
to impugn in the first place.
Same; Same; Birth Certificates; Prescription; An action to cancel a
persons Birth Certificate for being allegedly void ab initio does not
prescribe, and the prescriptive period set forth in Article 170 of the
Family Code does not apply.This argument is bereft of merit. The
present action involves the cancellation of petitioners Birth

Certificate; it does not impugn her legitimacy. Thus, the prescriptive

period set forth in Article 170 of the Family Code does not apply.
Verily, the action to nullify the Birth Certificate does not prescribe,
because it was allegedly void ab initio.
Same; Same; Same; While it is true that an official document such as a
Birth Certificate enjoys the presumption of regularity, the specific facts
that there were already irregularities regarding the Birth Certificate
itself, such as it was not signed by the local civil registrar, and that the
alleged mothers signature therein was different from her other
signatures, as well as such other circumstance showing that the latter
is not the real mother, sufficiently negate such presumption.While it
is true that an official document such as petitioners Birth Certificate
enjoys the presumption of regularity, the specific facts attendant in
the case at bar, as well as the totality of the evidence presented
during trial, sufficiently negate such presumption. First, there were
already irregularities regarding the Birth Certificate itself. It was not
signed by the local civil registrar. More important, the Court of
Appeals observed that the mothers signature therein was different
from her signatures in other documents presented during the trial.
Second, the circumstances surrounding the birth of petitioner show
that Hermogena is not the formers real mother. For one, there is no
evidence of Hermogenas pregnancy, such as medical records and
doctors prescriptions, other than the Birth Certificate itself. In fact,
no witness was presented to attest to the pregnancy of Hermogena
during that time. Moreover, at the time of her supposed birth,
Hermogena was already 54 years old. Even if it were possible for her
to have given birth at such a late age, it was highly suspicious that
she did so in her own home, when her advanced age necessitated
proper medical care normally available only in a hospital.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Pablito C. Pielago, Sr. for petitioner.
Dulcesimo Tampus for respondent.
PANGANIBAN, J.:
A birth certificate may be ordered cancelled upon adequate proof that
it is fictitious. Thus, void is a certificate which shows that the mother
was already fifty-four years old at the time of the childs birth and

33

which was signed neither by the civil registrar nor by the supposed
mother. Because her inheritance rights are adversely affected, the
legitimate child of such mother is a proper party in the proceedings
for the cancellation of the said certificate.
Statement of the Case
Submitted for this Courts consideration is a Petition for Review on
Certiorari1 under Rule 45 of the Rules of Court, seeking reversal of the
March 18, 1999 Decision2 of the Court of Appeals3 (CA) in CA-GR CV
No. 56031. Affirming the Regional Trial Court of Lanao del Norte in
Special Proceedings No. 3046, the CA ruled as follows:
IN VIEW HEREOF, the appealed decision is hereby AFFIRMED.
Accordingly, the instant appeal is DISMISSED for lack of merit. Costs
against the defendant-appellant, TEOFISTA BABIERA, a.k.a. Teofista
Guinto.4
The dispositive portion of the affirmed RTC Decision reads:
WHEREFORE, in view of the foregoing findings and pronouncements
of the Court, judgment is hereby rendered, to wit:
1. 1) Declaring the Certificate of Birth of respondent Teofista
Guinto as null and void ab initio;
2. 2) Ordering the respondent Local Civil Registrar of Iligan to
cancel from the registry of live birth of Iligan City BIRTH
CERTIFICATE recorded as Registry No. 16035;
Furnish copies of this decision to the Local Civil Registrar of Iligan
City, the City Prosecutor, counsel for private respondent Atty. Tomas
Cabili and to counsel for petitioner.
SO ORDERED.
The Facts
The undisputed facts are summarized by the Court of Appeals in this
wise:
Presentation B. Catotal (hereafter referred to as PRESENTACION)
filed with the Regional Trial Court of Lanao del Norte, Branch II, Iligan
City, a petition for the cancellation of the entry of birth of Teofista

Babiera (herafter referred to as TEOFISTA) in the Civil Registry of

Iligan City. The case was docketed as Special Proceedings No. 3046.
From the petition filed, PRESENTACION asserted that she is the only
surviving child of the late spouses Eugenio Babiera and Hermogena
Cariosa, who died on May 26, 1996 and July 6, 1990 respectively;
that on September 20, 1996 a baby girl was delivered by hilot in the
house of spouses Eugenio and Hermogena Babiera and without the
knowledge of said spouses, Flora Guinto, the mother of the child and
a housemaid of spouses Eugenio and Hermogena Babiera, caused the
registration/recording of the facts of birth of her child, by simulating
that she was the child of the spouses Eugenio, then 65 years old and
Hermogena, then 54 years old, and made Hermogena Babiera appear
as the mother by forging her signature x x x; that petitioner, then 15
years old, saw with her own eyes and personally witnessed Flora
Guinto give birth to Teofista Guinto, in their house, assisted by hilot;
that the birth certificate x x x of Teofista Guinto is void ab initio, as it
was totally a simulated birth, signature of informant forged, and it
contained false entries, to wit: a) The child is made to appear as the
legitimate child of the late spouses Eugenio Babiera and Hermogena
Cariosa, when she is not; b) The signature of Hermogena Cariosa,
the mother, is falsified/forged. She was not the informant; c) The
family name BABIERA is false and unlawful and her correct family
name is GUINTO, her mother being single; d) Her real mother was
Flora Guinto and her status, an illegitimate child; The natural father,
the carpenter, did not sign it; that the respondent Teofista Barbieras
birth certificate is void ab initio, and it is patently a simulation of
birth, since it is clinically and medically impossible for the supposed
parents to bear a child in 1956 because: a) Hermogena Cariosa
Babiera, was already 54 years old; b) Hermogenas last child birth was
in the year 1941, the year petitioner was born; c) Eugenio was already
65 years old, that the void and simulated birth certificate of Teofista
Guinto would affect the hereditary rights of petitioner who inherited
the estate of cancelled and declared void and theretofore she prays
that after publication, notice and hearing, judgment [be] render[ed]
declaring x x x the certificate of birth of respondent Teofista Guinto as
declared void, invalid and ineffective and ordering the respondent
local civil registrar of Iligan to cancel from the registry of live birth of
Iligan City BIRTH CERTIFICATE recorded as Registry No. 16035.
Finding the petition to be sufficient in form and substance, the trial
court issued an order directing the publication of the petition and the
date of hearing thereof in a newspaper, the Local Civil Registrar of
Iligan City, the office of the City Prosecutor of Iligan City and
TEOFISTA.

34

TEOFISTA filed a motion to dismiss on the grounds that the petition

states no cause of action, it being an attack on the legitimacy of the
respondent as the child of the spouses Eugenio Babiera and
Hermogena Cariosa Babiera; that plaintiff has no legal capacity to
file the instant petition pursuant to Article 171 of the Family Code;
and finally that the instant petition is barred by prescription in
accordance with Article 170 of the Family Code. The trial court
denied the motion to dismiss.

The CA also deemed inapplicable Articles 170 and 171 of the Family
Code, which stated that only the father could impugn the childs
legitimacy, and that the same was not subject to a collateral attack. It
held that said provisions contemplated a situation wherein the
husband or his heirs asserted that the child of the wife was not his. In
this case, the action involved the cancellation of the childs Birth
Certificate for being void ab initio on the ground that the child did not
belong to either the father or the mother.

Subsequently, Attys. Padilla, Ulindang and Padilla appeared and

filed an answer/opposition in behalf of private respondent Teofista
Babiera, [who] was later on substituted by Atty. Cabili as counsel for
private respondent.

Hence, this appeal.6

In the answer filed, TEOFISTA averred that she was always known
as Teofista Babiera and not Teofista Guinto; that plaintiff is not the
only surviving child of the late spouses Eugenio Babiera and
Hermogena C. Babiera, for the truth of the matter [is that] plaintiff
Presentation B. V. Catotal and [defendant] Teofista Babiera are sisters
of the full-blood. Her Certificate of Birth, signed by her mother
Hermogena Babiera, x x x Certificate of Baptism, x x x Students
Report Card x x x all incorporated in her answer, are eloquent
testimonies of her filiation. By way of special and affirmative defenses,
defendant/respondent contended that the petition states no cause of
action, it being an attack on the legitimacy of the respondent as the
child of the spouses Eugenio Babiera and Hermogena Carioza
Babiera; that plaintiff has no legal capacity to file the instant petition
pursuant to Article 171 of the Family Code; and finally that the
instant petition is barred by prescription in accordance with Article
170 of the Family Code.5
Ruling of the Court of Appeals
The Court of Appeals held that the evidence adduced during trial
proved that petitioner was not the biological child of Hermogena
Babiera. It also ruled that no evidence was presented to show that
Hermogena became pregnant in 1959. It further observed that she
was already 54 years old at the time, and that her last pregnancy had
occurred way back in 1941. The CA noted that the supposed birth
took place at home, notwithstanding the advanced age of Hermogena
and its concomitant medical complications. Moreover, petitioners
Birth Certificate was not signed by the local civil registrar, and the
signature therein, which was purported to be that of Hermogena, was
different from her other signatures.

Issues
Petitioner presents the following assignment of errors:
1.

1) Respondent (plaintiff in the lower court a quo) does not

have the legal capacity to file the special proceeding of appeal
under CA GR No. CV-56031 subject matter of this review on
certiorari;
2. 2) The special proceeding on appeal under CA GR No. CV56031 is improper and is barred by [the] statute of limitation
(prescription); [and]
3. 3) The Honorable Court of Appeals, the fifteenth division
utterly failed to hold, that the ancient public record of
petitioners birth is superior to the self-serving oral testimony
of respondent.7
The Courts Ruling
The Petition is not meritorious.
First Issue: Subject of the Present Action
Petitioner contends that respondent has no standing to sue, because
Article 1718 of the Family Code states that the childs filiation can be
impugned only by the father or, in special circumstances, his heirs.
She adds that the legitimacy of a child is not subject to a collateral
attack.
This argument is incorrect. Respondent has the requisite standing to
initiate the present action. Section 2, Rule 3 of the Rules of Court,
provides that a real party in interest is one who stands to be
benefited or injured by the judgment in the suit, or the party entitled
to the avails of the suit.9 The interest of respondent in the civil status

35

of petitioner stems from an action for partition which the latter filed
against the former.10 The case concerned the properties inherited by
respondent from her parents.
Moreover, Article 171 of the Family Code is not applicable to the
present case. A close reading of this provision shows that it applies to
instances in which the father impugns the legitimacy of his wifes
child. The provision, however, presupposes that the child was the
undisputed offspring of the mother. The present case alleges and
shows that Hermogena did not give birth to petitioner. In other words,
the prayer herein is not to declare that petitioner is an illegitimate
child of Hermogena, but to establish that the former is not the latters
child at all. Verily, the present action does not impugn petitioners
filiation to Spouses Eugenio and Hermogena Babiera, because there is
no blood relation to impugn in the first place.

Intermediate Appellate Court, 166 SCRA 451, 457 cited in the

impugned decision is apropos, viz.:
Petitioners recourse to Article 263 of the New Civil Code [now Art.
170 of the Family Code] is not well-taken. This legal provision refers
to an action to impugn legitimacy. It is inapplicable to this case
because this is not an action to impugn the legitimacy of a child, but
an action of the private respondents to claim their inheritance as legal
heirs of their childless deceased aunt. They do not claim that
petitioner Violeta Cabatbat Lim is an illegitimate child of the
deceased, but that she is not the decedents child at all. Being neither
[a] legally adopted child, nor an acknowledged natural child, nor a
child by legal fiction of Esperanza Cabatbat, Violeta is not a legal heir
of the deceased.12 (Emphasis supplied.)
Second Issue: Prescription

In Benitez-Badua v. Court of Appeals,11 the Court ruled thus:

Petitioners insistence on the applicability of Articles 164, 166, 170
and 171 of the Family Code to the case at bench cannot be sustained.
These articles provide:
xxx

xxx

xxx

A careful reading of the above articles will show that they do not
contemplate a situation, like in the instant case, where a child is
alleged not to be the child of nature or biological child of a certain
couple. Rather, these articles govern a situation where a husband (or
his heirs) denies as his own a child of his wife. Thus, under Article
166, it is the husband who can impugn the legitimacy of said child by
proving: (1) it was physically impossible for him to have sexual
intercourse, with his wife within the first 120 days of the 300 days
which immediately preceded the birth of the child; (2) that for
biological or other scientific reasons, the child could not have been his
child; (3) that in case of children conceived through artificial
insemination, the written authorization or ratification by either parent
was obtained through mistake, fraud, violence, intimidation or undue
influence. Articles 170 and 171 reinforce this reading as they speak of
the prescriptive period within which the husband or any of his heirs
should file the action impugning the legitimacy of said child.
Doubtless then, the appellate court did not err when it refused to
apply these articles to the case at bench. For the case at bench is not
one where the heirs of the late Vicente are contending that petitioner is
not his child by Isabel. Rather, their clear submission is that petitioner
was not born to Vicente and Isabel. Our ruling in Cabatbat-Lim vs.

Petitioner next contends that the action to contest her status as a

child of the late Hermogena Babiera has already prescribed. She cites
Article 170 of the Family Code which provides the prescriptive period
for such action:
Art. 170. The action to impugn the legitimacy of the child shall be
brought within one year from the knowledge of the birth or its
recording in the civil register, if the husband or, in a proper case, any
of his heirs, should reside in the city or municipality where the birth
took place or was recorded.
If the husband or, in his default, all of his heirs do not reside at the
place of birth as defined in the first paragraph or where it was
recorded, the period shall be two years if they should reside in the
Philippines; and three years if abroad. If the birth of the child has
been concealed from or was unknown to the husband or his heirs, the
period shall be counted from the discovery or knowledge of the birth
of the child or of the fact of registration of said birth, whichever is
earlier.
This argument is bereft of merit. The present action involves the
cancellation of petitioners Birth Certificate; it does not impugn her
legitimacy. Thus, the prescriptive period set forth in Article 170 of the
Family Code does not apply. Verily, the action to nullify the Birth
Certificate does not prescribe, because it was allegedly void ab initio.13

36

Third Issue: Presumption in Favor of the Birth Certificate

Lastly, petitioner argues that the evidence presented, especially
Hermogenas testimony that petitioner was not her real child, cannot
overcome the presumption of regularity in the issuance of the Birth
Certificate.

you in your residence?

a Maybe in 1978 but she [would] always go ou[t] from time to time.
q Now, during this time, do you recall if you ever assert[ed] her as
your daughter with your husband?
a No, sir.15

While it is true that an official document such as petitioners Birth

Certificate enjoys the presumption of regularity, the specific facts
attendant in the case at bar, as well as the totality of the evidence
presented during trial, sufficiently negate such presumption. First,
there were already irregularities regarding the Birth Certificate itself.
It was not signed by the local civil registrar. 14 More important, the
Court of Appeals observed that the mothers signature therein was
different from her signatures in other documents presented during
the trial.

Relying merely on the assumption of validity of the Birth Certificate,

petitioner has presented no other evidence other than the said
document to show that she is really Hermogenas child. Neither has
she provided any reason why her supposed mother would make a
deposition stating that the former was not the latters child at all.

Second, the circumstances surrounding the birth of petitioner show

that Hermogena is not the formers real mother. For one, there is no
evidence of Hermogenas pregnancy, such as medical records and
doctors prescriptions, other than the Birth Certificate itself. In fact,
no witness was presented to attest to the pregnancy of Hermogena
during that time. Moreover, at the time of her supposed birth,
Hermogena was already 54 years old. Even if it were possible for her
to have given birth at such a late age, it was highly suspicious that
she did so in her own home, when her advanced age necessitated
proper medical care normally available only in a hospital.

WHEREFORE, the Petition is hereby DENIED and the assailed

Decision AFFIRMED. Costs against petitioner.

The most significant piece of evidence, however, is the deposition of

Hermogena Babiera which states that she did not give birth to
petitioner, and that the latter was not hers nor her husband
Eugenios. The deposition reads in part:
q Who are your children?
a Presentacion and Florentino Babiera.
q Now, this Teofista Babiera claims that she is your legitimate child
with your husband Eugenio Babiera, what can you say about that?
a She is not our child.
xxx
xxx
xxx
q Do you recall where she was born?
a In our house because her mother was our house helper.
q Could you recall for how long if ever this Teofista Babiera lived with

All in all, we find no reason to reverse or modify the factual finding of

the trial and the appellate courts that petitioner was not the child of
respondents parents.

SO ORDERED.
Melo (Chairman), Purisima and Gonzaga-Reyes, JJ., concur.
Vitug, J., Abroad on official business.
Petition denied, judgment affirmed.
Notes.Documentary evidence rejected as insufficient to prove
filiation; Photographs of a person at baptism and in the house do not
prove that he is the father. (Fernandez vs. Court of Appeals, 230 SCRA
130 [1994])
An unrecognized spurious child has no rights from his parents or to
their estate. (llano vs. Court of Appeals, 230 SCRA 242 [1994])
An action for compulsory recognition and enforcement of successional
rights which was filed prior to the advent of the Family Code must be
governed by Article 285 of the Civil Code and not by Article 175,
paragraph 2 of the Family Code. (Aruego, Jr. vs. Court of Appeals, 254
SCRA 711 [1996])

37

A blood test could eliminate all possibility that the accused is the
father of the child, if none of the putative fathers phenotype(s) are
present in the childs blood typewhile the converse does not hold
true (i.e., that the presence of identical phenotypes in both individuals
establishes paternity), the absence of the formers phenotype in the
childs would make his paternity biologically untenable. (People vs.
Cartuano, Jr., 255 SCRA 403 [1996])

38

G.R. No. 105625. January 24, 1994.*

MARISSA BENITEZ-BADUA, petitioner, vs. COURT OF APPEALS,
VICTORIA BENITEZ LIRIO AND FEODOR BENITEZ AGUILAR,
respondents.
Civil Law; Paternity and Filiation; Articles 164, 166, 170 and 171 of the
Family Code do contemplate a situation where a child is alleged not to
be the child of nature or biological child of a certain couple.A careful
reading of the above articles will show that they do not contemplate a
situation, like in the instant case, where a child is alleged not to be
the child of nature or biological child of a certain couple. Rather,
these articles govern a situation where a husband (or his heirs) denies
as his own a child of his wife. Thus, under Article 166, it is the
husband who can impugn the legitimacy of said child by proving: (1) it
was physically impossible for him to have sexual intercourse, with his
wife within the first 120 days of the 300 days which immediately
preceded the birth of the child; (2) that for biological or other scientific
reasons, the child could not have been his child; (3) that in case of
children conceived through artificial insemination, the written
authorization or ratification by either parent was obtained through
mistake, fraud, violence, intimidation or undue influence.
Same; Same; Same; Appellate court did not err when it refused to apply
these articles to the case at bench.Doubtless then, the appellate
court did not err when it refused to apply these articles to the case at
bench. For the case at bench is not one where the heirs of the late
Vicente are contending that petitioner is not his child by Isabel.
Rather, their clear submission is that petitioner was not born to
Vicente and Isabel.
Same; Same; Same; The totality of contrary evidence presented by the
private respondents sufficiently rebutted the truth of the content of
petitioners Certificate of Live Birth.We sustain these findings as they
are not unsupported by the evidence on record. The weight of these
findings was not negated by the documentary evidence presented by
the petitioner, the most notable of which is her Certificate of Live
Birth (Exh. 3) purportedly showing that her parents were the late
Vicente Benitez and Isabel Chipongian. This Certificate registered on
December 28, 1954 appears to have been signed by the deceased
Vicente Benitez. Under Article 410 of the New Civil Code, however,
the books making up the Civil Registry and all documents relating

thereto shall be considered public documents and shall be prima facie

evidence of the facts therein stated. As related above, the totality of
contrary evidence, presented by the private respondents sufficiently
rebutted the truth of the content of petitioners Certificate of Live
Birth. Of said rebutting evidence, the most telling was the Deed of
Extra-judicial Settlement of the Estate of the Deceased Isabel
Chipongian (Exh. E) executed on July 20, 1982 by Vicente Benitez,
and Dr. Nilo Chipongian, a brother of Isabel. In this notarized
document, they stated that (they) are the sole heirs of the deceased
Isabel Chipongian because she died without descendants or
ascendants. In executing this Deed, Vicente Benitez effectively
repudiated the Certificate of Live Birth of petitioner where it appeared
that he was petitioners father. The repudiation was made twenty
eight years after he signed petitioners Certificate of Live Birth.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Reynaldo M. Alcantara for petitioner.
Augustus Cesar E. Azura for private respondents.
PUNO, J.:
This is a petition for review of the Decision of the 12th Division of the
Court of Appeals in CA-G.R. No. CV No. 30862 dated May 29, 1992.1
The facts show that the spouses Vicente Benitez and Isabel
Chipongian owned various properties especially in Laguna. Isabel died
on April 25, 1982. Vicente followed her in the grave on November 13,
1989. He died intestate.
The fight for administration of Vicentes estate ensued. On September
24, 1990, private respondents Victoria Benitez-Lirio and Feodor
Benitez Aguilar (Vicentes sister and nephew, respectively) instituted
Sp. Proc. No. 797 (90) before the RTC of San Pablo City, 4th Judicial
Region, Br. 30. They prayed for the issuance of letters of
administration of Vicentes estate in favor of private respondent
Aguilar. They alleged, inter alia, viz:
xxx

39

4. The decedent is survived by no other heirs or relatives be they

ascendants or descendants, whether legitimate, illegitimate or legally
adopted; despite claims or representation to the contrary, petitioners
can well and truly establish, given the chance to do so, that said
decedent and his spouse Isabel Chipongian who pre-deceased him,
and whose estate had earlier been settled extra-judicial, were without
issue and/or without descendants whatsoever, and that one Marissa
Benitez Badua who was raised and cared for by them since childhood
is, in fact, not related to them by blood, nor legally adopted, and is
therefore not a legal heir; x x x

WHEREFORE, the decision appealed from herein is REVERSED and

another one entered declaring that appellee Marissa Benitez is not the
biological daughter or child by nature of the spouse Vicente O.
Benitez and Isabel Chipongian and, therefore, not a legal heir of the
deceased Vicente O. Benitez. Her opposition to the petition for the
appointment of an administrator of the intestate estate of the
deceased Vicente O. Benitez is, consequently, DENIED; said petition
and the proceedings already conducted therein reinstated; and the
lower court is directed to proceed with the hearing of Special
Proceeding No. SP-797(90) in accordance with law and the Rules.

On November 2, 1990, petitioner opposed the petition. She alleged

that she is the sole heir of the deceased Vicente Benitez and capable
of administering his estate. The parties further exchanged reply and
rejoinder to buttress their legal postures.

Costs against appellee.

The trial court then received evidence on the issue of petitioners

heirship to the estate of the deceased. Petitioner tried to prove that
she is the only legitimate child of the spouses Vicente Benitez and
Isabel Chipongian. She submitted documentary evidence, among
others: (1) her Certificate of Live Birth (Exh. 3); (2) Baptismal
Certificate (Exh. 4); (3) Income Tax Returns and Information Sheet for
Membership with the GSIS of the late Vicente naming her as his
daughter (Exhs. 10 to 21); and (4) School Records (Exhs. 5 & 6). She
also testified that the said spouses reared and continuously treated
her as their legitimate daughter. On the other hand, private
respondents tried to prove, mostly thru testimonial evidence, that the
said spouses failed to beget a child during their marriage; that the late
Isabel, then thirty six (36) years of age, was even referred to Dr.
Constantino Manahan, a noted obstetrician-gynecologist, for
treatment. Their primary witness, Victoria Benitez-Lirio, elder sister of
the late Vicente, then 77 years of age, 2 categorically declared that
petitioner was not the biological child of the said spouses who were
unable to physically procreate.
On December 17, 1990, the trial court decided in favor of the
petitioner. It dismissed the private respondents petition for letters of
administration and declared petitioner as the legitimate daughter and
sole heir of the spouses Vicente O. Benitez and Isabel Chipongian.
The trial court relied on Articles 166 and 170 of the Family Code.
On appeal, however, the Decision of the trial court was reversed on
May 29, 1992 by the 17th Division of the Court of Appeals. The
dispositive portion of the Decision of the appellate court states:

SO ORDERED.
In juxtaposition, the appellate court held that the trial court erred in
applying Articles 166 and 170 of the Family Code.
In this petition for review, petitioner contends:
1. 1. The Honorable Court of Appeals committed error of law and
misapprehension of facts when it failed to apply the
provisions, more particularly, Arts. 164, 166, 170, and 171 of
the Family Code in thiscase and in adopting or upholding
private respondents theory that the instant case does not
involve an action to impugn the legitimacy of a child;
1. 2. Assuming arguendo that private respondents can question
or impugn directly or indirectly, the legitimacy of Marissas
birth, still the respondent appellate Court committed grave
abuse of discretion when it gave more weight to the testimonial
evidence of witnesses of private respondents whose credibility
and demeanor have not convinced the trial court of the truth
and sincerity thereof, than the documentary and testimonial
evidence of the now petitioner Marissa Benitez-Badua
2. 3. The Honorable Court of Appeals has decided the case in a
way not in accord with law or with applicable decisions of the
Supreme Court, more particularly, on prescription or laches.
We find no merit to the petition.
Petitioners insistence on the applicability of Articles 164, 166, 170
and 171 of the Family Code to the case at bench cannot be sustained.
These articles provide:

40

Art. 164. Children conceived or born during the marriage of the

parents are legitimate.
Children conceived as a result of artificial insemination of the wife
with sperm of the husband or that of a donor or both are likewise
legitimate children of the husband and his wife, provided, that both of
them authorized or ratified such insemination in a written instrument
executed and signed by them before the birth of the child. The
instrument shall be recorded in the civil registry together with the
birth certificate of the child.
Art. 166. Legitimacy of child may be impugned only on the following
grounds:
1. 1) That it was physically impossible for the husband to have
sexual intercourse with his wife within the first 120 days of
the 300 days which immediately preceded the birth of the
child because of:
1. a) the physical incapacity of the husband to have sexual
intercourse with his wife;
2. b) the fact that the husband and wife were living separately in
such a way that sexual intercourse was not possible; or
3. c) serious illness of the husband, which absolutely prevented
sexual intercourse.
1. 2) That it is proved that for biological or other scientific
reasons, the child could not have been that of the husband
except in the instance provided in the second paragraph of
Article 164; or
1. 3) That in case of children conceived through artificial
insemination, the written authorization or ratification of either
parent was obtained through mistake, fraud, violence,
intimidation, or undue influence.
Art. 170. The action to impugn the legitimacy of the child shall be
brought within one year from the knowledge of the birth or its
recording in the civil register, if the husband or, in a proper case, any
of his heirs, should reside in the city or municipality where the birth
took place or was recorded.
If the husband or, in his default, all of his heirs do not reside at the
place of birth as defined in the first paragraph or where it was

recorded, the period shall be two years if they should reside in the
Philippines; and three years if abroad. If the birth of the child has
been concealed from or was unknown to the husband or his heirs, the
period shall be counted from the discovery or knowledge of the birth
of the child or of the fact of registration of said birth, whichever is
earlier.
Art. 171. The heirs of the husband may impugn the filiation of the
child within the period prescribed in the preceding Article only in the
following case:
1. 1) If the husband should die before the expiration of the
period fixed for bringing his action;
2. 2) If he should die after the filing of the complaint, without
having desisted therefrom; or
3. 3) If the child was born after the death of the husband.
A careful reading of the above articles will show that they do not
contemplate a situation, like in the instant case, where a child is
alleged not to be the child of nature or biological child of a certain
couple. Rather, these articles govern a situation where a husband (or
his heirs) denies as his own a child of his wife. Thus, under Article
166, it is the husband who can impugn the legitimacy of said child by
proving: (1) it was physically impossible for him to have sexual
intercourse, with his wife within the first 120 days of the 300 days
which immediately preceded the birth of the child; (2) that for
biological or other scientific reasons, the child could not have been his
child; (3) that in case of children conceived through artificial
insemination, the written authorization or ratification by either parent
was obtained through mistake, fraud, violence, intimidation or undue
influence. Articles 170 and 171 reinforce this reading as they speak of
the prescriptive period within which the husband or any of his heirs
should file the action impugning the legitimacy of said child.
Doubtless then, the appellate court did not err when it refused to
apply these articles to the case at bench. For the case at bench is not
one where the heirs of the late Vicente are contending that petitioner
is not his child by Isabel. Rather, their clear submission is that
petitioner was not born to Vicente and Isabel. Our ruling in CabatbatLim vs. Intermediate Appellate Court, 166 SCRA 451, 457 cited in the
impugned decision is apropos, viz:
Petitioners recourse to Article 263 of the New Civil Code [now Art.
170 of the Family Code] is not well-taken. This legal provision refers
to an action to impugn legitimacy. It is inapplicable to this case
because this is not an action to impugn the legitimacy of a child, but

41

an action of the private respondents to claim their inheritance as legal

heirs of their childless deceased aunt. They do not claim that
petitioner Violeta Cabatbat Lim is an illegitimate child of the
deceased, but that she is not the decedents child at all. Being neither
legally adopted child, nor an acknowledged natural child, nor a child
by legal fiction of Esperanza Cabatbat, Violeta is not a legal heir of the
deceased.
We now come to the factual finding of the appellate court that
petitioner was not the biological child or child of nature of the spouses
Vicente Benitez and Isabel Chipongian. The appellate court
exhaustively dissected the evidence of the parties as follows:
x x x And on this issue, we are constrained to say that appellees
evidence is utterly insufficient to establish her biological and blood
kinship with the aforesaid spouses, while the evidence on record is
strong and convincing that she is not, but that said couple being
childless and desirous as they were of having a child, the late Vicente
O. Benitez took Marissa from somewhere while still a baby, and
without he and his wifes legally adopting her treated, cared for,
reared, considered, and loved her as their own true child, giving her
the status as not so, such that she herself had believed that she was
really their only daughter and entitled to inherit from them as such.
The strong and convincing evidence referred to by us are the
following:
First, the evidence is very cogent and clear that Isabel Chipongian
never became pregnant and, therefore, never delivered a child. Isabels
own only brother and sibling, Dr. Lino Chipongian, admitted that his
sister had already been married for ten years and was already about
36 years old and still she had not begotten or still could not bear a
child, so that he even had to refer her to the late Dr. Constantino
Manahan, a well-known and eminent obstetrician-gynecologist and
the OB of his mother and wife, who treated his sister for a number of
years. There is likewise the testimony of the elder sister of the
deceased Vicente O. Benitez, Victoria Benitez Lirio, who then, being a
teacher, helped him (he being the only boy and the youngest of the
children of their widowed mother) through law school, and whom
Vicente and his wife highly respected and consulted on family
matters, that her brother Vicente and his wife Isabel being childless,
they wanted to adopt her youngest daughter and when she refused,
they looked for a baby to adopt elsewhere, that Vicente found two
baby boys but Isabel wanted a baby girl as she feared a boy might
grow up unruly and uncontrollable, and that Vicente finally brought

home a baby girl and told his elder sister Victoria that he would
register the baby as his and his wifes child. Victoria Benitez Lirio was
already 77 years old and too weak to travel and come to court in San
Pablo City, so that the taking of her testimony by the presiding judge
of the lower court had to be held at her residence in Paraaque, MM.
Considering, her advanced age and weak physical condition at the
time she testified in this case. Victoria Benitez Lirios testimony is
highly trustworthy and credible, for as one who may be called by her
Creator at any time, she would hardly be interested in material things
anymore and can be expected not to lie, especially under her oath as
a witness. There were also several disinterested neighbors of the
couple Vicente O. Benitez and Isabel Chipongian in Nagcarlan,
Laguna (Sergio Fule, Cecilia Coronado, and Benjamin C. Asendido)
who testified in this case and declared that they used to see Isabel
almost everyday especially as she had a drugstore in the ground floor
of her house, but that they never saw her to have been pregnant, in
1954 (the year appellee Marissa Benitez was allegedly born, according
to her birth certificate Exh. 3) or at any time at all, and that this is
also true with the rest of their townmates. Resurreccion A. Tuico,
Isabel Chipongians personal beautician who used to set her hair once
a week at her (Isabels) residence, likewise declared that she did not
see Isabel ever become pregnant, that she knows that Isabel never
delivered a baby, and that when she saw the baby Marissa in her crib
one day when she went to Isabels house to set the latters hair, she
was surprised and asked the latter where the baby came from, and
she told me that the child was brought by Atty. Benitez and told me
not to tell about it (p. 10, tsn Nov. 29, 1990).
The facts of a womans becoming pregnant and growing big with child,
as well as her delivering a baby, are matters that cannot be hidden
from the public eye, and so is the fact that a woman never became
pregnant and could not have, therefore, delivered a baby at all.
Hence, if she is suddenly seen mothering and caring for a baby as if it
were her own, especially at the rather late age of 36 (the age of Isabel
Chipongian when appellee Marissa Benitez was allegedly born), we
can be sure that she is not the true mother of that baby.
Second, appellees birth certificate Exh. 3 with the late Vicente O.
Benitez appearing as the informant, is highly questionable and
suspicious. For if Vicentes wife Isabel, who was already 36 years old
at the time of the childs supposed birth, was truly the mother of that
child, as reported by Vicente in her birth certificate, should the child
not have been born in a hospital under the experienced, skillful, and
caring hands of Isabels obstetrician-gynecologist Dr. Constantino

42

Manahan, since delivery of a child at that late age by Isabel would

have been difficult and quite risky to her health and even life? How
come, then, that as appearing in appellees birth certificate, Marissa
was supposedly born at the Benitez home in Avenida Rizal, Nagcarlan,
Laguna, with no physician or even a midwife attending?
At this juncture, it might be meet to mention that it has become a
practice in recent times for people who want to avoid the expense and
trouble of a judicial adoption to simply register the child as their
supposed child in the civil registry. Perhaps Atty. Vicente O. Benitez,
though a lawyer himself, thought that he could avoid the trouble if
not the expense of adopting the child Marissa through court
proceedings by merely putting himself and his wife as the parents of
the child in her birth certificate. Or perhaps he had intended to legally
adopt the child when she grew a little older but did not come around
doing so either because he was too busy or for some other reason. But
definitely, the mere registration of a child in his or her birth certificate
as the child of the supposed parents is not a valid adoption, does not
confer upon the child the status of an adopted child and the legal
rights of such child, and even amounts to simulation of the childs
birth or falsification of his or her birth certificate, which is a public
document.
Third, if appellee Marissa Benitez is truly the real, biological daughter
of the late Vicente O. Benitez and his wife Isabel Chipongian, why did
he and Isabels only brother and sibling Dr. Nilo Chipongian, after
Isabels death on April 25, 1982, state in the extrajudicial settlement
Exh. E that they executed of her estate, that we are the sole heirs of
the deceased ISABEL CHIPONGIAN because she died without
descendants or ascendants? Dr. Chipongian, placed on the witness
stand by appellants, testified that it was his brother-in-law Atty.
Vicente O. Benitez who prepared said document and that he signed
the same only because the latter told him to do so (p. 24, tsn Nov. 22,
1990). But why would Atty. Benitez make such statement in said
document, unless appellee Marissa Benitez is really not his and his
wifes daughter and descendant and, therefore, not his deceaseds wife
legal heir? As for Dr. Chipongian, he lamely explained that he signed
said document without understanding completely the meaning of the
words descendant and ascendant (p. 21, tsn Nov. 22, 1990). This we
cannot believe, Dr. Chipongian being a practicing pediatrician who
has even gone to the United States (p. 52, tsn Dec. 13, 1990).
Obviously, Dr. Chipongian was just trying to protect the interests of
appellee, the foster-daughter of his deceased sister and brother-inlaw, as against those of the latters collateral blood relatives.

Fourth, it is likewise odd and strange, if appellee Marissa Benitez is

really the daughter and only legal heir of the spouses Vicente O.
Benitez and Isabel Chipongian, that the latter, before her death,
would write a note to her husband and Marissa stating that:
even without any legal papers, I wish that my husband and my child
or only daughter will inherit what is legally my own property, in case I
die without a will,
and in the same handwritten note, she even implored her husband
that any inheritance due him from my propertywhen he dieto
make our own daughter his sole heir. This do [sic] not mean what he
legally owns or his inherited property. I leave him to decide for himself
regarding those.
(Exhs. F-1, F-1-A and F-1-B)
We say odd and strange, for if Marissa Benitez is really the daughter
of the spouses Vicente O. Benitez and Isabel Chipongian, it would not
have been necessary for Isabel to write and plead for the foregoing
requests to her husband, since Marissa would be their legal heir by
operation of law. Obviously, Isabel Chipongian had to implore and
supplicate her husband to give appellee although without any legal
papers her properties when she dies, and likewise for her husband to
give Marissa the properties that he would inherit from her (Isabel),
since she well knew that Marissa is not truly their daughter and could
not be their legal heir unless her (Isabels) husband makes her so.
Finally, the deceased Vicente O. Benitez elder sister Victoria Benitez
Lirio even testified that her brother Vicente gave the date December 8
as Marissas birthday in her birth certificate because that date is the
birthday of their (Victoria and Vicentes) mother. It is indeed too much
of a coincidence for the child Marissa and the mother of Vicente and
Victoria to have the same birthday unless it is true, as Victoria
testified, that Marissa was only registered by Vicente as his and his
wifes child and that they gave her the birth date of Vicentes mother.
We sustain these findings as they are not unsupported by the
evidence on record. The weight of these findings was not negated by
the documentary evidence presented by the petitioner, the most
notable of which is her Certificate of Live Birth (Exh. 3) purportedly
showing that her parents were the late Vicente Benitez and Isabel
Chipongian. This Certificate registered on December 28, 1954 appears

43

to have been signed by the deceased Vicente Benitez. Under Article

410 of the New Civil Code, however, the books making up the Civil
Registry and all documents relating thereto shall be considered public
documents and shall be prima facie evidence of the facts therein
stated. As related above, the totality of contrary evidence, presented
by the private respondents sufficiently rebutted the truth of the
content of petitioners Certificate of Live Birth. Of said rebutting
evidence, the most telling was the Deed of Extra-Judicial Settlement
of the Estate of the Deceased Isabel Chipongian (Exh. E) executed
on July 20, 1982 by Vicente Benitez, and Dr. Nilo Chipongian, a
brother of Isabel. In this notarized document, they stated that (they)
are the sole heirs of the deceased Isabel Chipongian because she died
without descendants or ascendants. In executing this Deed, Vicente
Benitez effectively repudiated the Certificate of Live Birth of petitioner
where it appeared that he was petitioners father. The repudiation was
made twenty eight years after he signed petitioners Certificate of Live
Birth.
IN VIEW WHEREOF, the petition for review is dismissed for lack of
merit. Costs against petitioner.
SO ORDERED.
Narvasa (C.J., Chairman), Padilla and Regalado, JJ., concur.
Nocon, J., On leave.
Petition dismissed.
Note.Under Article 887 of the Civil Code, all cases of illegitimate
children, their filiation must be proved by voluntary or compulsory
recognition (Mangulabnan vs. Intermediate Appellate Court, 185 SCRA
760).

44

APPEAL by certiorari to review the decision of the Court of Appeals.

Jao vs. Court of Appeals

The facts are stated in the opinion of the Court.

No. L-49162. July 28, 1987.*

PADILLA, J.:

JANICE MARIE JAO, represented by her mother and guardian ad

litem, ARLENE S. SALGADO, petitioner, vs. THE HONORABLE
COURT OF APPEALS and PERICO V. JAO, respondents.

Appeal by certiorari from the decision** of the Court of Appeals in CAG.R. No. 51078-R, dated 29 August 1978, which dismissed
petitioner's action for recognition and support against private
respondent, and from the respondent Court's resolution, dated 11
October 1978, denying petitioner's motion for reconsideration of said
decision.

Evidence; Blood grouping test can establish conclusively that the man
is not the father of the child but not necessarily that a man is the father
of a particular child * * * it may have some probative value if the blood
type and the combination in the child is rare, thus, it is now up to the
discretion of the judge whether to admit the results.Paternity
Science has demonstrated that by the analysis of blood samples of the
mother, the child, and the alleged father, it can be established
conclusively that the man is not the father of the child. But group blood
testing cannot show that a man is the father of a particular child, but
at least can show only a possibility that he is. Statutes in many
states, and courts in others, have recognized the value and the
limitations of such tests. Some of the decisions have recognized the
conclusive presumption of non-paternity where the results of the test,
made in the prescribed manner, show the impossibility of the alleged
paternity. This is one of the few cases in which the judgment of the
Court may scientifically be completely accurate, and intolerable
results avoided, such as have occurred where the finding is allowed to
turn on oral testimony conflicting with the results of the test. The
findings of such blood tests are not admissible to prove the fact of
paternity as they show only a possibility that the alleged father or any
one of many others with the same blood type may have been the
father of the child. But the Uniform Act recognizes that the tests may
have some probative value to establish paternity where the blood type
and the combination in the child is shown to be rare, in which case
the judge is given discretion to let it in" (I Jones on Evidence, 5th Ed.,
pp. 193-194). "In one specific biological trait, viz, blood groups,
scientific opinion is now in accord in accepting the fact that there is a
causative relation between the trait of the progenitor and the trait of
the progeny. In other words, the blood composition of a child may be
some evidence as to the child's paternity. But thus far this trait (in
the present state of scientific discovery as generally accepted) can be
used only negatively i.e. to evidence that a particular man F is not the
father of a particular child C." (I Wigmore on Evidence 3rd Ed., pp.
610-611).

On 28 October 1968, petitioner Janice Marie Jao, then a minor,

represented by her mother and guardian-ad-litem Arlene Salgado, filed
a case for recognition and support with the Juvenile and Domestic
Relations Court against private respondent Perico V. Jao. The latter
denied paternity so the parties agreed to a blood grouping test which
was in due course conducted by the National Bureau of Investigation
(NBI) upon order of the trial court. The result of the blood grouping
test, held 21 January 1969, indicated that Janice could not have been
the possible offspring of Perico V. Jao and Arlene S. Salgado. 1
The trial court initially found the result of the tests legally conclusive
but upon plaintiff's (herein petitioner's) second motion for
reconsideration, it ordered a trial on the merits, after which, Janice
was declared the child of Jao, thus entitling her to his monthly
support.
Jao appealed to the Court of Appeals, questioning the trial court's
failure to appreciate the result of the blood grouping tests. As there
was no showing whatsoever that there was any irregularity or mistake
in the conduct of the tests, Jao argued that the result of the tests
should have been conclusive and indisputable evidence of his nonpaternity.
The Court of Appeals upheld Jao's contentions and reversed the trial
court's decision. In its decision, the Court of Appeals held:
"From the evidence of the contending parties, it appears undisputed
that JAO was introduced to ARLENE at the Saddle and Sirloin, Bay
Side Club, by Melvin Yabut. After this meeting, JAO dated and
courted ARLENE. Not long thereafter, they had their first sexual

45

intercourse and subsequently, they lived together as husband and

wife. x x x
It further appears undisputed that in April 1968, JAO accompanied
ARLENE to the Marian General Hospital for medical checkup and her
confinement was with JAO's consent. JAO paid the rentals where they
lived, the salaries of the maids, and other household expenses. x x x
The record discloses that ARLENE gave birth to JANICE on August
16, 1968, after completing 36 weeks of pregnancy, which indicates
that ARLENE must have conceived JANICE on or about the first week
of December, 1967. Thus, one issue to be resolved in this appeal is
whether on or about that time, J AO and ARLENE had sexual
intercourse and were already living with one another as husband and
wife.
In this connection, ARLENE contends that she first met JAO
sometime in the third or fourth week of November, 1967 at the Saddle
and Sirloin, Bayside Club; that after several dates, she had carnal
knowledge with him at her house at 30 Longbeach, Merville,
Paraaque, Rizal in the evening of November 30, 1967, and that he
started to live with her at her dwelling after December 16, 1967, the
date they finished their cruise to Mindoro Island.
On the other hand, JAO, albeit admitting that he met ARLENE at the
Saddle and Sirloin, Bayside Club, however, maintains that this was
on December 14, 1967 because the day following, he and his guests:
ARLENE, Melvin Yabut, Didi Crescini and Charlie Litonjua went to
Mindoro by boat. He dated ARLENE four times in January, 1968. He
remembered he had carnal knowledge of her for the first time on
January 18, 1968, because that was a week after his birthday and it
was only in May, 1968 that he started cohabiting with her at the
Excelsior Apartments on Roxas Boulevard.
These conflicting versions of the parties emphasize, in resolving the
paternity of JANICE, the role of the blood grouping tests conducted by
the NBI and which resulted in the negative finding that in a union
with ARLENE, JAO could not be the father of JANICE.
We cannot sustain the conclusion of the trial court that the NBI is not
in a position to determine with mathematical precision the issue of
parentage by blood grouping test, considering the rulings of this
Court x x x where the blood grouping tests of the NBI were admitted;
especially where, in the latter case, it was Dr. Lorenzo Sunico who

conducted the test and it appears that in the present case, the same
Dr. Sunico approved the findings and report. x x x In Co Tao vs. Court
of Appeals, 101 Phil. 188, the Supreme Court had given weight to the
findings of the NBI in its blood grouping test. Thus, it cannot be
gainsaid that the competency of the NBI to conduct blood grouping
tests has been recognized as early as the 1950's.
The views of the Court on blood grouping tests may be stated as
follows:
"PaternityScience has demonstrated that by the analysis of blood
samples of the mother, the child, and the alleged father, it can be
established conclusively that the man is not the father of the child. But
group blood testing cannot show that a man is the father of a
particular child, but at least can show only a possibility that he is.
Statutes in many states, and courts in others, have recognized the
value and the limitations of such tests. Some of the decisions have
recognized the conclusive presumption of non-paternity where the
results of the test, made in the prescribed manner, show the
impossibility of the alleged paternity. This is one of the few cases in
which the judgment of the Court may scientifically be completely
accurate, and intolerable results avoided, such as have occurred
where the finding is allowed to turn on oral testimony conflicting with
the results of the test.
"The findings of such blood tests are not admissible to prove the fact
of paternity as they show only a possibility that the alleged father or
any one of many others with the same blood type may have been the
father of the child. But the Uniform Act recognizes that the tests may
have some probative value to establish paternity where the blood type
and the combination in the child is shown to be rare, in which case
the judge is given discretion to let it in" (I Jones on Evidence, 5th Ed.,
pp. 193-194).
"In one specific biological trait, viz, blood groups, scientific opinion is
now in accord in accepting the f act that there is a causative relation
between the trait of the progenitor and the trait of the progeny. In
other words, the blood composition of a child may be some evidence
as to the child's paternity. But thus far this trait (in the present state
of scientific discovery as generally accepted) can be used only
negatively i.e. to evidence that a particular man F is not the father of
a particular child C." (I Wigmore on Evidence 3rd Ed., pp. 610-611).
In a last ditch effort to bar the admissibility and competency of the
blood test, JANICE claims that probative value was given to blood

46

tests only in cases where they tended to establish paternity; and that
there has been no case where the blood test was invoked to establish
non-paternity, thereby implying that blood tests have probative value
only when the result is a possible affirmative and not when in the
negative. This contention is fallacious and must be rejected. To
sustain her contention, in effect, would be recognizing only the
possible affirmative finding but not the blood grouping test itself for if
the result were negative, the test is regarded worthless. Indeed, this is
illogical. x x x As an admitted test, it is admissible in subsequent
similar proceedings whether the result be in the negative or in the
affirmative. x x x"
The Court of Appeals also found other facts that ran contrary to
petitioner's contention that JAO's actions before and after JANICE
was born were tantamount to recognition. Said the respondent
appellate court:
"On the contrary, after JANICE was born, JAO did not recognize her
as his own. In fact, he filed a petition that his name as father of
JANICE in the latter's certificate of live birth be deleted, evidencing his
repudiation, rather than recognition. The mere acts of JAO in
cohabiting with ARLENE, the attention given to her during
herpregnancy and the financial assistance extended to her cannot
overcome the result of the blood grouping test. These acts of JAO
cannotbe evaluated as recognizing the unborn JANICE as his own as
thepossession of such status cannot be founded on conjectures
andpresumptions, especially so that, We have earlier said, JAO
refusedto acknowledge JANICE after the latter's birth.
JAO cannot be compelled to recognize JANICE based on paragraph 2
of Article 283 in relation to Article 289 of the New Civil Code which
provides: "When the child is in continuous possession of status of a
child of the alleged father by the direct acts of the latter."
Nor can there be compulsory recognition under paragraphs 3 or 4 of
said article which states:
1. "(3) When the child was conceived during the time when the
mother cohabited with the supposed father;
2. (4) When the child has in his favor any evidence or proof that
the defendant is his father."
As aptly appreciated by the court below, JANICE could have been
conceived from November 20, 1967 to December 4, 1967. Indeed,

ARLENE claims that her first sexual intercourse with JAO was on
November 30, 1967 while the latter avers it was one week after
January 18, 1968. However, to satisfy paragraph 3 as above-quoted,
JANICE must have been conceived when ARLENE and JAO started to
cohabit with one another. Since ARLENE herself testified that their
cohabitation started only after December 16, 1967, then it cannot be
gainsaid that JANICE was not conceived during this cohabitation.
Hence, no recognition will lie. Necessarily, recognition cannot be had
under paragraph 4 as JANICE has no other evidence or proof of her
alleged paternity.
Apart from these, there is the claim of JAO that, at the critical time of
conception, ARLENE had carnal knowledge with two other men:
"Oying" Fernandez and Melvin Yabut, which was not even rebutted;
and considering that it was Melvin Yabut, who introduced ARLENE to
JAO at the Bayside Club. Moreover, the testimony of ARLENE is not
wholly reliable. When the trial court said that "the Court is further
convinced of plaintiff's cause by ARLENE 's manner of testifying in a
most straight-forward and candid manner," the fact that ARLENE was
admittedly a movie actress may have been overlooked so that not even
the trial court could detect, by her acts, whether she was lying or not.
"WHEREFORE, the judgment appealed from is hereby set aside and a
new one entered dismissing plaintiff-appellee's complaint. Without
pronouncement as to costs. SO ORDERED."
The petitioner now brings before this Court the issue of admissibility
and conclusiveness of the result of blood grouping tests to prove nonpaternity.
In this jurisdiction, the result of blood tests, among other evidence, to
affirm paternity was dealt with in Co Tao v. Court of Appeals,2 an
action for declaration of filiation, support and damages. In said case,
the NBI expert's report of the blood tests stated that "from their blood
groups and types, the defendant Co Tao is a possible father of the
child." From this statement, the defendant contended that the child
must have been the child of another man. The Court noted: "For
obvious reasons, the NBI expert cannot give assurance that the
appellant was the father of the child; he can only give his opinion that
he is a 'possible father.' This possibility, coupled with the other facts
and circumstances brought out during the trial, tends to definitely
establish that appellant Co Tao is the father of the child Manuel." 3
Where the issue is admissibility and conclusiveness of blood grouping
tests to disprove paternity, rulings have been much more definite in

47

their conclusions. For the past three decades, the use of blood typing
in cases of disputed parentage has already become an important legal
procedure. There is now almost universal scientific agreement that
blood grouping tests are conclusive as to non-paternity, although
inconclusive as to paternitythat is, the fact that the blood type of
the child is a possible product of the mother and alleged father does
not conclusively prove that the child is born by such parents; but, if
the blood type of the child is not the possible blood type when the
blood of the mother and that of the alleged father are crossmatched,
then the child cannot possibly be that of the alleged father.4
In jurisdictions like the United States, the admissibility of blood tests
results to prove non-paternity has already been passed upon in
several cases. In Gilpin v. Gilpin5 the positive results of blood tests
excluding paternity, in a case in which it was shown that proper
safeguards were drawn around the testing procedures, were
recognized as final on the question of paternity. In Cuneo v. Cuneo6
evidence of non-paternity consisting of the result of blood grouping
tests was admitted despite a finding that the alleged father had
cohabited with the mother within the period of gestation. The Court
said that the competent medical testimony was overwhelmingly in
favor of the plaintiff, and to reject such testimony would be
tantamount to rejecting scientific fact. Courts, it was stated, should
apply the results of science when competently obtained in aid of
situations presented, since to reject said result was to deny progress. 7
This ruling was also echoed in Clark v. Rysedorph,8 a filiation
proceeding where an uncontradicted blood grouping test evidence,
excluding paternity, was held conclusive.9 Legislation expressly
recognizing the use of blood tests is also in force in several states. 10
Tolentino,11 affirms this rule on blood tests as proof of non-paternity,
thus
"Medical science has shown that there are four types of blood in man
which can be transmitted through heredity. Although the presence of
the same type of blood in two persons does not indicate that one was
begotten by the other, yet the fact that they are of different types will
indicate the impossibility of one being the child of the other. Thus,
when the supposed father and the alleged child are not in the same
blood group, they cannot be father and child by consanguinity. The
Courts of Europe today regard a blood test exclusion as an
unanswerable and indisputable proof of non-paternity."12
Moreover,

"The cohabitation between the mother and the supposed father

cannot be a ground for compulsory recognition if such cohabitation
could not have produced the conception of the child. This would be
the case, for instance, if the cohabitation took place outside of the
period of conception of the child. Likewise, if it can be proved by blood
tests that the child and the supposed father belong to different blood
groups, the cohabitation by itself cannot be a ground for
recognition."13
Petitioner has attempted to discredit the result of the blood grouping
tests in the instant case by impugning the qualifications of the NBI
personnel who performed the tests and the conduct of the tests
themselves. Her allegations, in this regard, appear to be without
merit. The NBI's forensic chemist who conducted the tests is also a
serologist, and has had extensive practice in this area for several
years. The blood tests were conducted six (6) times using two (2)
scientifically recognized blood grouping systems, the MN Test and the
ABO System,14 under witness and supervision. 15
Even the allegation that Janice was too young at five months to have
been a proper subject for accurate blood tests must fall, since nearly
two years after the first blood test, she, represented by her mother,
declined to undergo the same blood test to prove or disprove their
allegations, even as Jao was willing to undergo such a test again.16
Accordingly, the Court affirms the decision of the Court of Appeals
and holds that the result of the blood grouping tests involved in the
case at bar, are admissible and conclusive on the non-paternity of
respondent Jao vis-a-vis petitioner Janice. No evidence has been
presented showing any defect in the testing methods employed or
failure to provide adequate safeguards for the proper conduct of the
tests. The result of such tests is to be accepted therefore as accurately
reflecting a scientific fact.
In view of the findings of fact made by the Court of Appeals, as
heretofore quoted, which are binding on this Court, we do not find it
necessary to further pass upon the issue of recognition raised by
petitioner.
WHEREFORE, ,the instant petition for review is hereby denied.
Without pronouncement as to costs.
SO ORDERED.

48

Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ.,

concur.
Petition denied.
Notes.Where the duty to support is admitted, but in spite of
demands the duty is not complied with and the person to be
supported has to resort to the court for the enforcement of his right,
then the person obliged to give support must pay reasonable
attorney's fees. (Baltazar vs. Serfino, 14 SCRA 820.)
The right to support cannot be: (1) renounced; (2) transmitted to third
person; nor (3) compensated with what the recipient owes the obligor
(Art. 301, Civil Code). (Versoza vs. Versoza, 26 SCRA 78.)
G.R. No. 104376. February 23, 1994.*
ARTEMIO G. ILANO, petitioner, vs. THE COURT OF APPEALS and
MERCEDITAS (sic) S. ILANO, represented by her mother,
LEONCIA DE LOS SANTOS, respondent.
Family Relations; Paternity and Filiation; Illegitimate Children;
Support.Under the then prevailing provisions of the Civil Code,
illegitimate children or those who are conceived and born out of
wedlock were generally classified into two groups: (1) Natural, whether
actual or by fiction, were those born outside of lawful wedlock of
parents who, at the time of conception of the child, were not
disqualified by any impediment to marry each other (Article 119, old
Civil Code; Article 269, new Civil Code) and (2) Spurious, whether
incestuous, adulterous or illicit, were those born of parents who, at
the time of conception, were disqualified to marry each other on
account of certain legal impediments. Since petitioner had a
subsisting marriage to another at the time Merciditas was conceived,
she is a spurious child. In this regard, Article 287 of the Civil Code
provides that illegitimate children other than natural in accordance
with Article 269 and other than natural children by legal fiction are
entitled to support and such successional rights as are granted in the
Civil Code. The Civil Code has given these rights to them because the
transgressions of social conventions committed by the parents should
not be visited upon them. They were born with a social handicap and
the law should help them to surmount the disadvantages facing them
through the misdeeds of their parents.

Same; Same; Same; Same; An unrecognized spurious child has no

rights from his parents or to their estate.Before Article 287 can be
availed of, there must first be a recognition of paternity either
voluntarily or by court action. This arises from the legal principle that
an unrecognized spurious child like a natural child has no rights from
his parents or to their estate because his rights spring not from the
filiation or blood relationship but from his acknowledgement by the
parent. In other words, the rights of an illegitimate child arose not
because he was the true or real child of his parents but because
under the law, he had been recognized or acknowledged as such a
child. The relevant law on the matter is Article 283 of the Civil Code.
While the aforementioned provision speaks of the obligation of the
father to recognize the child as his natural child, for the purpose of
the present case, petitioner is obliged to recognize Merciditas as his
spurious child. This provision should be read in conjunction with
Article 289 of the Civil Code which provides: Art. 289. Investigation of
the paternity or maternity of (other illegitimate) children x x x is
permitted under the circumstances specified in articles 283 and 284.
Same; Same; Same; Same; Evidence; Last paragraph of Art. 283 of the
Civil Code permits hearsay and reputation evidence with respect to
illegitimate children.The last paragraph of Article 283 contains a
blanket provision that practically covers all the other cases in the
preceding paragraphs. Any other evidence or proof that the defendant
is the father is broad enough to render unnecessary the other
paragraphs of this article. When the evidence submitted in the action
for compulsory recognition is not sufficient to meet the requirements
of the first three paragraphs, it may still be enough under the last
paragraph.
This paragraph permits hearsay and reputation evidence, as provided
in the Rules of Court, with respect to illegitimate filiation.
PETITION for review of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Ernesto P. Pangalangan for petitioner.
Eduardo S. Rodriguez for private respondent.
NOCON, J.:

49

After the great flood, man was commanded to go forth, be fertile,

multiply and fill the earth. Others did not heed the sequence of this
command because they multiply first and then go. Corollarily, it is
now commonplace for an abandoned illegitimate offspring to sue his
father for recognition and support.
The antecedent facts are narrated in the trial courts decision, as
follows:
Leoncia first met petitioner Artemio G. llano while she was working as
secretary to Atty. Mariano C. Virata. Petitioner was one of the clients
of Atty. Virata. On several occasions, she and petitioner took lunch
together. In less than a years time, she resigned from her work.
Sometime in 1957, Leoncia, then managing a business of her own as
Namarco distributor, met petitioner again who was engaged in the
same business and they renewed acquaintances. Since then, he
would give her his unsold allocation of goods. Later, he courted her
for more than four years. Their relationship became intimate and with
his promise of marriage, they eloped to Guagua, Pampanga in April,
1962. They stayed at La Mesa Apartment, located behind the Filipinas
Telephone Company branch office, of which he is the president and
general manager. He came home to her three or four times a week.
The apartment was procured by Melencio Reyes, Officer-in-Charge of
the Filipinas Telephone Company branch office. He also took care of
the marketing and paid rentals, light and water bills. 1 Unable to
speak the local dialect, Leoncia was provided also by Melencio with a
maid by the name of Nena. Petitioner used to give her P700.00 a
month for their expenses at home.
In June, 1962, Leoncia, who was conceiving at that time, was fetched
by petitioner and they transferred to San Juan St., Pasay City. In
October, 1962, she delivered a still-born female child at the Manila
Sanitarium. The death certificate was signed by petitioner.2
Thereafter, while they were living at Highway 54, Makati, private
respondent Merciditas S. llano was born on December 30, 1963 also
at the Manila Sanitarium. Her birth was recorded as Merciditas de los
Santos llano, child of Leoncia Aguinaldo de los Santos and Artemio
Geluz Ilano.3 Leoncia submitted receipt issued by the Manila
Sanitarium to show that she was confined there from December 30,
1963 until January 2, 1964 under the name Mrs. Leoncia llano. 4

The support by petitioner for Leoncia and Merciditas was sometimes

in the form of cash personally delivered by him, thru Melencio, thru
Elynia (niece of Leoncia)5 or thru Merciditas herself;6 and sometimes
in the form of a check like Manila Banking Corporation Check No.
81532,7 the signature appearing thereon having been identified by
Leoncia as that of petitioner because he often gives her checks which
he issues at home and saw him sign the checks. 8 Both petitioner and
his daughter admitted that the check and signature are those of the
former.9
During the time that petitioner and Leoncia were living as husband
and wife, he showed concern as the father of Merciditas. When
Merciditas was in Grade I at the St. Joseph Parochial School, he
signed her Report Card for the fourth and fifth grading periods 10 as
her parent. Those signatures were both identified by Leoncia and
Merciditas because he signed them at their residence in their
presence and of Elynia.11 Since Merciditas started to have
discernment, he was already the one whom she recognized as her
Daddy.12 He treated her as a father would to his child. He would bring
home candies, toys, and anything a child enjoys. He would take her
for a drive, eat at restaurants, and even cuddle her to sleep. 13
When petitioner ran as a candidate in the Provincial Board of Cavite,
he gave Leoncia his picture with the following dedication: To Nene,
with best regards, Temiong.14
In May, 1963, Ruth Elynia Mabanglo, niece of Leoncia, lived with
Leoncia and petitioner. She accompanied her aunt when she started
having labor pains in the morning of December 30, 1963. Petitioner
arrived after five oclock in the afternoon. When the nurse came to
inquire about the child, Leoncia was still unconscious so it was from
petitioner that the nurse sought the information. Inasmuch as it was
already past seven oclock in the evening, the nurse promised to
return the following morning for his signature. However, he left an
instruction to give the birth certificate to Leoncia for her signature, as
he was leaving early the following morning.
Prior to the birth of Merciditas, Elynia used to accompany her aunt
and sometimes with petitioner in his car to the Manila Sanitarium for
prenatal check-up. At times, she used to go to his office at 615 Sales
St., Sta. Cruz, Manila, upon his instructions to get money as support
and sometimes he would send notes of explanation if he cannot come
which she in turn gave to her aunt.15 They stayed at 112 Arellano St.,
then at Sta. Cruz, Manila in 1966 before they finally transferred to

50

Gagalangin in 1967. Petitioner lived with them up to June, 1971

when he stopped coming home.
Petitioners defense was a total and complete denial of any
relationship with Leoncia and Merciditas. He disowned the
handwritten answers and signatures opposite column 16 of the death
certificate of a female child surnamed llano, although in column 13
thereof opposite fathers name the typewritten name, Artemio G. llano,
appears. He also denied the following: all the notes alleged to have
been received from him by Elynia for delivery to Leoncia; the
signatures appearing in Merciditas Report Card; and being the source
of a photo of himself with a handwritten dedication. He admitted that
Manila Banking Corporation Check No. 81532 including the signature
is his. He was sick on December 30, 1963 and was hospitalized on
January 7, 1964.16 He does not understand why this case was filed
against him.17
Melencio admitted that he was the one who procured the apartment
for Leoncia, leased it in his name, paid the rentals and bought the
necessities therefor. He and Leoncia lived together and shared the
same bed. They later transferred to San Juan St., Pasay City and to
Highway 54, Makati. He stopped visiting her in March or April, 1963
because he planned to get married with another which he eventually
did in September, 1963.
Diosdado Datu, fish vendor, usually delivered to the apartment fishes
ordered by Melencio which were received by Leoncia.
Nilda llano Ramos, daughter of petitioner, does not know Leoncia;
neither has she been brought to their family home in Imus, Cavite, On
December 30, 1963, her father was at their home because he got sick
on December 25, 1963 and was advised to have a complete bed rest.
Her father was hospitalized on January 7, 1964. She denied that her
father was at the Manila Sanitarium on December 30, 1963; that he
fetched a certain woman on January 2, 1964, at the Manila
Sanitarium because he was at their home at that time, and that her
father lived with a certain woman in 1963 up to June, 1971 because
all this time he was living with them in Imus, Cavite. He was working
and reporting to the office everyday and when he goes to Guagua or
Manila on business, her mother or brother goes with him.
Victoria J. llano, petitioners wife, further corroborated the previous
testimonies about petitioners sickness on December 30, 1963 and
hospitalization on January 7, 1964. It could not be true that her
husband, during the years 1963 to 1968, lived three (3) times a week

with a certain Leoncia de los Santos because her husband never slept
out of their house and that in his capacity as President and Chairman
of the Board of the Filipinas Telephone Company he does not go to
Guagua even once a year because they have a branch manager,
Melencio Reyes.
After weighing the contradictory testimonies and evidence of the
parties, the trial court was not fully satisfied that petitioner is the
father of Merciditas, on the basis of the following:
1. 1) petitioner and Leoncia were not in cohabitation during the
period of Merciditas conception;
2. 2) testimony of Melencio that he frequented the apartment
where Leoncia was living, took care of all the bills and shared
the same bed with her;
3. 3) the birth certificate of Merciditas was not signed by
petitioner;
4. 4) petitioner denied his signature in the monthly report card of
Merciditas; and
5. 5) there is no clear and sufficient showing that support was
given by petitioner to Merciditas.
Thus, it rendered judgment on April 4, 1981 dismissing the
complaint.18
Fortunately for private respondent, respondent Court of Appeals did
not share the same view as the trial court. A review of the testimonial
and documentary evidence adduced by private respondent led
respondent court to the firm conclusion that petitioner is her father,
entitling her to support. The dispositive portion of its decision dated
December 17, 1991 reads:
WHEREFORE, the Decision appealed from is REVERSED and
judgment is hereby rendered declaring plaintiff MERCEDITAS S.
ILANO as the duly acknowledged and recognized illegitimate child of
defendant ARTEMIO G. ILANO with all the rights appurtenant to such
status.
Defendant is directed to pay the plaintiff support in arrears at the rate
of EIGHT HUNDRED (P800.00) PESOS a month from the date of the
filing of the complaint on August 16, 1972 up to August 15, 1975;
ONE THOUSAND (P1,000.00) PESOS a month from August 16, 1975
to August 15, 1978; ONE THOUSAND THREE HUNDRED (P1,300.00)
PESOS a month from August 18, 1978 to August 15, 1981; and ONE

51

THOUSAND FIVE HUNDRED (P1,500.00) a month from August 16,

1981 up to the time she reached the age of majority on December 30,
1984.
Defendant is further ordered to pay the plaintiff the sum of
P10,000.00 as attorneys fees plus the costs.
SO ORDERED.19
The motion for reconsideration was denied in the resolution dated
February 26, 1992.20
Hence, the present petition.
We shall resolve the following pertinent errors allegedly committed by
respondent court:
1. 1) in awarding back support even in the absence of
recognition or of a judgment declaring petitioner father of
Merciditas with finality;
2. 2) in not ruling that an adulterous child cannot file an action
for recognition; and
3. 3) in deciding matters of substance manifestly against
established decisions of this Court.
Petitioner argues that since the complaint against him has been
dismissed by the trial court, therefore, there was absolutely no
obligation on his part to give support to Merciditas. It would have
been only from the date of the judgment of the trial court that support
should have commenced, if so granted. Under the law in force when
the complaint was filed, an adulterous child cannot maintain an
action for compulsory recognition. In order that the birth certificate
may constitute a voluntary recognition, it must be signed by the
father. Equivocal act, such as signing under the caption parent in
the report card, is not sufficient. Merciditas has never been to the
family home of petitioner at Imus, Cavite; nor introduced to his
family; nor brought around town by him, treated as his child,
introduced to other people as his child, led people to believe that she
was part of his family.

generally classified into two groups: (1) Natural, whether actual or by

fiction, were those born outside of lawful wedlock of parents who, at
the time of conception of the child, were not disqualified by any
impediment to marry each other (Article 119, old Civil Code; Article
269, new Civil Code) and (2) Spurious, whether incestuous,
adulterous or illicit, were those born of parents who, at the time of
conception, were disqualified to marry each other on account of
certain legal impediments.21 Since petitioner had a subsisting
marriage to another at the time Merciditas was conceived, 22 she is a
spurious child. In this regard, Article 287 of the Civil Code provides
that illegitimate children other than natural in accordance with Article
26923 and other than natural children by legal fiction are entitled to
support and such successional rights as are granted in the Civil Code.
The Civil Code has given these rights to them because the
transgressions of social conventions committed by the parents should
not be visited upon them. They were born with a social handicap and
the law should help them to surmount the disadvantages facing them
through the misdeeds of their parents.24 However, before Article 287
can be availed of, there must first be a recognition of paternity 25 either
voluntarily or by court action. This arises from the legal principle that
an unrecognized spurious child like a natural child has no rights from
his parents or to their estate because his rights spring not from the
filiation or blood relationship but from his acknowledgement by the
parent. In other words, the rights of an illegitimate child arose not
because he was the true or real child of his parents but because
under the law, he had been recognized or acknowledged as such a
child.26 The relevant law on the matter is Article 283 of the Civil Code,
which provides:
ART. 283. In any of the following cases, the father is obliged to
recognize the child as his natural child:
1. (1) In cases of rape, abduction or seduction, when the period of
the offense coincides more or less with that of the conception;
2. (2) When the child is in continuous possession of status of a
child of the alleged father by the direct acts of the latter or of
his family;
3. (3) When the child was conceived during the time when the
mother cohabited with the supposed father;
4. (4) When the child has in his favor any evidence or proof that
the defendant is his father.

The petition utterly lacks merit.

Under the then prevailing provisions of the Civil Code, illegitimate
children or those who are conceived and born out of wedlock were

While the aforementioned provision speaks of the obligation of the

father to recognize the child as his natural child, for the purpose of
the present case, petitioner is obliged to recognize Merciditas as his

52

spurious child. This provision should be read in conjunction with

Article 289 of the Civil Code which provides:
ART. 289. Investigation of the paternity or maternity of (other
illegitimate) children x x x is permitted under the circumstances
specified in articles 283 and 284.
In reversing the decision of the trial court, respondent court found, as
it is likewise our finding, that private respondents evidence to
establish her filiation with and the paternity of petitioner is too
overwhelming to be ignored or brushed aside by the highly improbable
and fatally flawed testimony of Melencio and the inherently weak
denials of petitioner:
Significantly, the Court a quo believed that plaintiffs mother and
defendant carried an intimate relations. It nonetheless was not
satisfied that defendant is the father of the plaintiff because it is not
convinced that her mother and defendant were in cohabitation during
the period of her conception, and took into account the testimony of
Melencio S. Reyes who frequented the apartment where Leoncia de los
Santos was living and who positively testified that he took care of all
the bills and that he shared the same bed with plaintiffs mother.

At the Guagua apartment, Artemio would visit Leoncia three or four

times a week and sleeps there (TSN, p. 47, 8/13/73). Artemio was
giving Leoncia an allowance of P700.00 a month (TSN, p. 38,
7/18/73). Leoncia got pregnant and Artemio found it difficult to
commute between Cavite and Guagua so that in June 1962, Artemio
transferred
Leoncia to Calle San Juan, Pasay City (TSN, pp. 19-20, 7/18/73)
where they were known as husband and wife (id. p. 41). In leaving
Guagua for San Juan, Pasay City, Leoncia was fetched by Artemio in
a car driven by Artemio himself. (pp. 9-11, Appellants Brief)
Even as Artemio and Leoncia lived and transferred to several places
heretofore mentioned, Melencio continued to be a trusted man Friday
of Artemio who would deliver notes (Exh. F, F-1 and F-3) and
money from Artemio to Leoncia. For reference, among the notes
identified by Leoncia as having come from defendant were the
following:
Exh. F-1
Dear Ne,

The court a quo completely ignored the fact that the apartment at
Guagua was rented by the defendant, and that Melencio Reyes, who
was a mere employee and godson of the defendant with a monthly
salary of P560.00 was a mere subaltern of the latter, and only
frequented the place upon instruction of the defendant to take care of
the needs of the plaintiff.

Magsimula akong makausap ni Gracing ay nagkaroon ako ng

diferencia sa paa at ngayon ay masakit pa.

As pointed out by appellant, Leoncia and Artemio stayed in an

apartment at the back of the Guagua Telephone System owned by and
of which Artemio was the General Manager (TSN, p. 46, 8/18/73) and
Melencio was the Officer-in-Charge in the absence of Artemio whose
residence and main office was in Cavite. There, for the first time,
Leoncia met Melencio (TSN, pp. 3-4, 1/25/74). The apartment in
Guagua was rented in the name of Melencio. As Leoncia does not
speak the Pampango dialect (TSN, p. 50, 8/18/73), Artemio gave
Leoncia the instruction to call upon Melencio for whatever Leoncia
needs (TSN, pp. 11-12, 1/25/74). Thus, it was Melencio who procured
all the supplies and services needed in the apartment for which
procurement Melencio gives to Leoncia the corresponding receipts of
payment for liquidations of cash advances Artemio or the Guagua
Telephone System or Leoncia herself, gives to Melencio (Exh. A, A-1 to
14; TSN, p. 32, 8/13/73; TSN, pp. 7, 12 and 14, 1/25/74).

Sgn.

Si Miling ay ngayon lamang nakarating dito kung hindi ka aalis diyan

ay si Miling na lamang and utusan mo sa Makati kung may kailangan
ka dian.

Mayroon akong nakitang bahay na mayayari malapit sa municipio ng

Makati. Ipakikita ko sa iyo kung papayag ka.
Sabihin mo kay Miling kung hindi ka aalis diyan bukas ay pupunta
ako.
Walang makitang bahay sa San Juan.
Sgn.
Exh. F-2

53

Ne, sa Viernes ay pupunta ako dian marami akong ginagawa.

Sgn.
Exh. F-3
Ne, si Miling ay bukas pupunta dito ay sa tanghali ay pupunta ako
diyan (11:30 am) Wala akong pera ngayon kaya bukas na, Sigurado
yon.
Sgn.

Dear Ne, Pacencia ka na at hindi ako nakapaglalakad gawa ng

mataas ang dugo, kaya minsan-minsan lamang ako makapunta sa
oficena.
Ibigay mo ang bayad sa bahay sa Sabado ng umaga, pipilitin kong
makarating dian sa Jueves.
Sgn.
The address Ne in the beginning of these notes refer to Leoncia
whose nickname is Nene but which Artemio shortens to Ne. Miling
is the nickname of Melencio. The Gracing mentioned in Exh. F-1
refer to Gracia delos Santos, a sister-in-law of Leoncia who was with
Artemio when Leoncia was removed from the hospital during the birth
of Merciditas. (pp. 17-19, Appellants Brief). These tiny bits of
evidence when pieced together ineluctably gives lie to defendants
diversionary pretense that it was with Melencio S. Reyes with whom
the mother lived with during her period of conception.
The attempt of Melencio S. Reyes to show that he was the lover of
Leoncia being in the apartment and sharing together the same
bedroom and the same bed hardly inspires belief.
xxx

Evidently, following the instruction of his employer and Godfather,

Melencio foisted on the court a quo the impression that he was the
lover and paramour of Leoncia but since there was really no such
relationship, he could not state the place in San Juan or Highway 54
where he took Leoncia, nor how long they stayed there belying his
pretence (sic) of an intimate relationship with piaintiffs mother. 27
Having discredited the testimonies of petitioner and Melencio,
respondent court then applied paragraph (2) of Article 283:

Exh. F-4

xxx

expenditures (Exhs. A, A-1 to A-14) for cash advances given to him by

Leoncia, Artemio or Guagua Telephone System which would not have
been the case, if it were true that there was an intimate relationship
between him and plaintiffs mother.

x x x.

Undoubtedly, the role played by Melencio S. Reyes in the relationship

between Leoncia and appellant (sic) was that of a man Friday
although appellant (sic) would not trust him to the hilt and
unwittingly required him to submit to Leoncia an accounting of his

The court a quo did not likewise consider the evidence as sufficient to
establish that plaintiff was in continuous possession of status of a
child in view of the denial by appellee of his paternity, and there is no
clear and sufficient evidence that the support was really given to
plaintiffs mother. The belated denial of paternity after the action has
been filed against the putative father is not the denial that would
destroy the paternity of the child which had already been recognized
by defendant by various positive acts clearly evidencing that he is
plaintiffs father. A recognition once validly made is irrevocable. It
cannot be withdrawn. A mere change of mind would be incompatible
with the stability of the civil status of person, the permanence of
which affects public interest. Even when the act in which it is made
should be revocable, the revocation of such act will not revoke the
recognition itself (1 Tolentino, pp. 579-580, 1983 Ed.).
To be sure, to establish the open and continuous possession of the
status of an illegitimate child, it is necessary to comply with certain
jurisprudential requirements. Continuous does not, however, mean
that the concession of status shall continue forever but only that it
shall not be of an intermittent character while it continues (De Jesus
vs. Syquia, 58 Phil. 866). The possession of such status means that
the father has treated the child as his own, directly and not through
others, spontaneously and without concealment though without
publicity (since the relation is illegitimate) (J.B.L. Reyes and R.C.
Puno, Outline of Philippine Civil Law, Vol. 1, 1964 ed., pp. 269-270
citing Coquia vs. Coquia, CA 50, O.G. 3701). There must be a showing
of the permanent intention of the supposed father to consider the
child as his own, by continuous and clear manifestation of paternal
affection and care. (Tolentino, Civil Code of the Philippines, Vol. 1,

54

1983 ed., p. 602). (Mendoza vs. Court of Appeals, G.R. No. 86302,
September 24, 1991.)

Merceditas (sic) and of Elynia (TSN, p. 57, 7/18/73; TSN, p. 28,

10/1/73). x x x.

It was Artemio who made arrangement for the delivery of Merceditas

(sic) at the Manila Sanitarium and Hospital. Prior to the delivery,
Leoncia underwent prenatal examination accompanied by Artemio
(TSN, p. 33, 5/17/74). After delivery, they went home to their
residence at EDSA in a car owned and driven by Artemio himself (id.
p. 36).

xxx

Merceditas (sic) bore the surname of Ilano since birth without any
objection on the part of Artemio, the fact that since Merceditas (sic)
had her discernment she had always known and called Artemio as her
Daddy (TSN, pp. 28-29, 10/18/74); the fact that each time Artemio
was at home, he would play with Merceditas (sic), take her for a ride
or restaurants to eat, and sometimes sleeping with Merceditas (sic)
(id. p. 34) and does all what a father should do for his childbringing
home goodies, candies, toys and whatever he can bring her which a
child enjoys which Artemio gives to Merceditas (sic) (TSN, pp. 38-39,
5/17/74) are positive evidence that Merceditas (sic) is the child of
Artemio and recognized by Artemio as such. Special attention is called
to Exh. E-7 where Artemio was telling Leoncia the need for a frog
test to know the status of Leoncia.

The mere denial by defendant of his signature is not sufficient to

offset the totality of the evidence indubitably showing that the
signature thereon belongs to him. The entry in the Certificate of Live
Birth that Leoncia and Artemio was falsely stated therein as married
does not mean that Leoncia is not appellees daughter. This particular
entry was caused to be made by Artemio himself in order to avoid
embarrassment.

Plaintiff pointed out that the support by Artemio for Leoncia and
Merceditas (sic) was sometimes in the form of cash personally
delivered to her by Artemio, thru Melencio, thru Elynia (Exhs. E-2
and E-3, and D-6), or thru Merceditas (sic) herself (TSN, p. 40,
5/17/74) and sometimes in the form of a check as the Manila
Banking Corporation Check No. 81532 (Exh. G) and the signature
appearing therein which was identified by Leoncia as that of Artemio
because Artemio often gives her checks and Artemio would write the
check at home and saw Artemio sign the check (TSN, p. 49, 7/18/73).
Both Artemio and Nilda admitted that the check and signature were
those of Artemio (TSN, p. 53, 10/17/77; TSN, p. 19, 10/9/78).

Granting ex gratia argumenti that private respondents evidence is not

sufficient proof of continuous possession of status of a spurious child,
respondent court applied next paragraph (4) of Article 283:

During the time that Artemio and Leoncia were living as husband and
wife, Artemio has shown concern as the father of Merceditas (sic).
When Merceditas (sic) was in Grade 1 at the St. Joseph Parochial
School, Artemio signed the Report Card of Merceditas (sic) (Exh. H)
for the fourth and fifth grading period(s) (Exh. H-1 and H-2) as the
parent of Merceditas (sic). Those signatures of Artemio where both
identified by Leoncia and Merceditas (sic) because Artemio signed
Exh. H-1 and H-2 at their residence in the presence of Leoncia,

xxx

x x x.

When Artemio run as a candidate in the Provincial Board of Cavite

Artemio gave Leoncia his picture with the following dedication: To
Nene, with best regards, Temiong. (Exh. 1). (pp. 19-20, Appellants
Brief)

It is difficult to believe that plaintiffs mother, who is a mere

dressmaker, had long beforehand diabolically conceived of a plan to
make it appear that defendant, who claims to be a total stranger, was
the father of her child, and in the process falsified the latters
signatures and handwriting.28

x x x plaintiffs testimonial and documentary evidence x x x (is) too

replete with details that are coherent, logical and natural which
cannot be categorized as mere fabrications of an inventive and
malicious mind of which Leoncia de los Santos was not shown to
possess.
The natural, logical and coherent evidence of plaintiff from the genesis
of the relationship between Leoncia and appellee, their living together
as husband and wife in several places, the birth of the first still-born
child, the circumstances of plaintiffs birth, the act of appellee in
recognizing and supporting plaintiff, find ample support from the
testimonial and documentary evidence which leaves no room to
reasonably doubt his paternity which may not be infirmed by his
belated denials.

55

Notably, the court a quo did not consider plaintiffs evidence as

lacking in credibility but did not deem them as convincing proof that
defendant is the father since the Certificate of live Birth was not
signed by appellee and since the monthly report card is not sufficient
to establish recognition, considering the denial of the defendant of his
signature appearing thereon.
While defendants signature does not appear in the Certificate of Live
Birth, the evidence indubitably disclose(s) that Leoncia gave birth on
December 30, 1963 to Merceditas (sic) at 4:27 p.m. at the Manila
Sanitarium. Artemio arrived at about 5:00 (TSN, p. 25, 5/17/74). At
about 7:00 p.m., a nurse came (id., p. 26) who made inquiries about
the biodata of the born child. The inquiries were directed to Artemio in
the presence of Elynia who heard the answers of Artemio which the
nurse took down in a sheet of paper (id. p. 28). The inquiries were
about the name of the father, mother and child. After the interview
the nurse told them that the information has to be recorded in the
formal form and has to be signed by Artemio (id., p. 30) but because
there is no office, as it was past 7:00 p.m. the nurse would just return
in the morning for Artemios signature. Artemio gave the instruction
to the nurse to give the biodata to Leoncia for her signature as he was
leaving very early the following morning as in fact Artemio left at 5:00
a.m. of December 31, 1963 (id. p. 33). Artemio stayed in the hospital
in the evening of December 30, 1963 (id. p. 26). As pointed out in
Castro vs. Court of Appeals, 173 SCRA 656:
The ruling in Roces vs. Local Civil Registrar of Manila (102 Phil. 1050
[1958] and Berciles v. Government Service Insurance System (128
SCRA 53 [1984]) that if the father did not sign in the birth certificate,
the placing of his name by the mother, doctor, registrar, or other
person is incompetent evidence of paternity does not apply to this
case because it was Eustaquio himself who went to the municipal
building and gave all the data about his daughters birth. x x x.
x x x the totality of the evidence, as pointed to above, is more than
sufficient to establish beyond reasonable doubt that appellee is the
father of the plaintiff Merceditas (sic) Ilano.
As elucidated in Mendoza vs. Court of Appeals, Supra:
xxx

xxx

xxx

x x x although Teopista has failed to show that she was in open and
continuous possession of the status of an illegitimate child of

Casimiro, we find that she has nevertheless established that status by

another method.
What both the trial court and the respondent did not take into
account is that an illegitimate child is allowed to establish his claimed
filiation by any other means allowed by the Rules of Court and
special laws, according to the Civil Code, x x x. Such evidence may
consist of his baptismal certificate, a judicial admission, a family
Bible in which his name has been entered, common reputation
respecting his pedigree, admission by silence, the testimonies of
witnesses, and other kinds of proof admissible under Rule 130 of the
Rules of Court. 29
The last paragraph of Article 283 contains a blanket provision that
practically covers all the other cases in the preceding paragraphs.
Any other evidence or proof that the defendant is the father is broad
enough to render unnecessary the other paragraphs of this article.
When the evidence submitted in the action for compulsory recognition
is not sufficient to meet the requirements of the first three
paragraphs, it may still be enough under the last paragraph. 30 This
paragraph permits hearsay and reputation evidence, as provided in
the Rules of Court, with respect to illegitimate filiation. 31
As a necessary consequence of the finding that private respondent is
the spurious child of petitioner, she is entitled to support. In awarding
support to her, respondent court took into account the following:
The obligation to give support shall be demandable from the time the
person who has a right to recover the same needs it for maintenance,
but it shall not be paid except from the date of judicial or extrajudicial
demand. (Article 203, Family Code of the Philippines.)
The complaint in this case was filed on August 14, 1972. Plaintiff,
having been born on December 30, 1963, was about nine (9) years old
at the time and was already of school age spending about P400.00 to
P500.00 a month for her school expenses alone, while defendant was
earning about P10,000.00 a month. She attained the age of majority
on December 30, 1984 (Article 234, Supra). She is therefore entitled
to support in arrears for a period of twelve (12) years four (4) months
and fourteen (14) days, which is hereby fixed at P800.00 a month for
the first three (3) years; and considering the declining value of the
peso as well as her needs as she grows older, at a graduated increase
of P1,000.00 a month for the next three (3) years; P1,300.00 a month
for the succeeding three (3) years; and P1,500.00 a month for the last

56

three (3) years, four (4) months and fourteen (14) days until she
attained the age of majority.
This being an action for legal support, the award of attorneys fees is
appropriate under Article 2208 (6) of the Civil Code. Moreover, the
court deems it just and equitable under the given facts and
circumstances that attorneys fees and expenses of litigation should
be recovered.32
We concur with the foregoing disposition, in the absence of proof that
it was arrived at arbitrarily.
The other allegation of petitioner that the appeal was prosecuted
almost ten years after the decision of the trial court was rendered
does not deserve any consideration because it appears that it is being
raised for the first time in this petition.33
WHEREFORE, the petition is hereby DENIED. The decision of the
Court of Appeals dated December 17, 1991 and its resolution dated
February 26, 1992 are AFFIRMED.
SO ORDERED.
Narvasa (C.J., Chairman), Padilla, Regalado and Puno, JJ., concur.
Petition denied; Assailed decision and resolution affirmed.
Notes.The mother is in the best position to know whether petitioner
was really her son (Chua Keng Giap vs. Intermediate Appellate Court,
158 SCRA 18 [1988]).
Illegitimate children have rights of the same nature as legitimate and
adopted children (Dempsey vs. Regional Trial Court, Br. LXXV,
Olongapo City, 164 SCRA 384 [1988]).

G.R. No. 95229. June 9, 1992.*

CORITO OCAMPO TAYAG, petitioner, vs. HON. COURT OF
APPEALS and EMILIE DAYRIT CUYUGAN, respondents.

Succession; Action; Action to compel recognition and a claim to

inheritance may be joined in a single complaint.Applying the
foregoing principles to the case at bar, although petitioner contends
that the complaint filed by herein private respondent merely alleges
that the minor Chad Cuyugan is an illegitimate child of the deceased
and is actually a claim for inheritance, from the allegations therein
the same may be considered as one to compel recognition. Further,
that the two causes of action, one to compel recognition and the other
to claim inheritance, may be joined in one complaint is not new in our
jurisprudence.
Same; Same; Statutes; Where a complaint for recognition was filed
before the Family Code took effect, the same should be resolved under
the provisions of the New Civil Code.Under the circumstances
obtaining in the case at bar, we hold that the right of action of the
minor child has been vested by the filing of the complaint in court
under the regime of the Civil Code and prior to the effectivity of the
Family Code. We herein adopt our ruling in the recent case of
Republic of the Philippines vs. Court of Appeals, et al. where we held
that the fact of filing of the petition already vested in the petitioner her
right to file it and to have the same proceed to final adjudication in
accordance with the law in force at the time, and such right can no
longer be prejudiced or impaired by the enactment of a new law.
Same; Same; Same; Rule that statutory changes in procedure shall
apply to pending actions cannot be applied where it will affect vested
rights.Even assuming ex gratia argumenti that the provision of the
Family Code in question is procedural in nature, the rule that a
statutory change in matters of procedure may affect pending actions
and proceedings, unless the language of the act excludes them from
its operation, is not so pervasive that it may be used to validate or
invalidate proceedings taken before it goes into effect, since procedure
must be governed by the law regulating it at the time the question of
procedure arises especially where vested rights may be prejudiced.
Accordingly, Article 175 of the Family Code finds no proper
application to the instant case since it will ineluctably affect adversely
a right of private respondent and, consequentially, of the minor child
she represents, both of which have been vested with the filing of the
complaint in court. The trial court is, therefore, correct in applying
the provisions of Article 285 of the Civil Code and in holding that
private respondent's cause of action has not yet prescribed.
PETITION for review of the decision of the Court of Appeals. Isnani, J.
The facts are stated in the opinion of the Court.

57

Lorenzo G. Timbol for petitioner.

Jose P. Bondoc for E. Cuyugan.
REGALADO, J.:
The instant petition seeks to reverse and set aside the decision 1 of
respondent Court of Appeals in CA-G.R. SP No. 20222, entitled
"Corito Tayag vs. Hon. Norberto C. Ponce, Judge, Regional Trial Court
of San Fernando, Pampanga and Emilie Dayrit Cuyugan,"
promulgated on May 10,1990, and its resolution denying petitioner's
motion for reconsideration.2 Said decision, now before us for review,
dismissed petitioner's Petition for Certiorari and Prohibition with
Preliminary Injunction on the ground that the denial of the motion to
dismiss Civil Case No. 7938 of the court a quo is an interlocutory
order and cannot be the subject of the said special civil action,
ordinary appeal in due time being petitioner's remedy.
In said Civil Case No. 7938, herein private respondent, in her capacity
as mother and legal guardian of minor Chad D. Cuyugan, filed on
April 9, 1987 a complaint denominated "Claim for Inheritance"
against herein petitioner as the administratrix of the estate of the late
Atty. Ricardo Ocampo. The operative allegations in said complaint are
as follows:
1. "2. Plaintiff is the mother and legal guardian of her minor son,
Chad Cuyugan, by the father of the defendant, the late Atty,
Ricardo Ocampo; and the defendant is the known
administratrix of the real and personal properties left by her
deceased father, said Atty. Ocampo, who died intestate in
Angeles City on September 28, 1983;
2. "3. Plaintiff has been estranged from her husband, Jose
Cuyugan, for several years now and during which time,
plaintiff and Atty. Ricardo Ocampo had illicit amorous
relationship with each other that, as a consequence thereof,
they begot a child who was christened Chad Cuyugan in
accordance with the ardent desire and behest of said Atty.
Ocampo;
3. "4. Chad, the son of plaintiff by the late Atty. Ricardo Ocampo,
who was born in Angeles City on October 5, 1980 had been
sired, showered with exceptional affection, fervent love and
care by his putative father for being his only son as can be
gleaned from indubitable letters and documents of the late
Atty. Ocampo to herein plaintiff, excerpts from some of which
are hereunder reproduced;

'x x x Keep good keep faith keep Chad and yourself for me alone and
for me all the time. As I have now I shall save my heart to you and to
Chad/
'x x x Please take good care and pray to Sto. Nio for our sake and for
the child sake.'
'x x x Keep him. Take good care of him.'
'x x x I'm proud that you are his mother ... I'm proud of him and you.
Let me bless him by my name and let me entitle him to all what I am
and what I've got.'
'x x x I have vowed to recognize him and be my heir.'
'x x x How is CHAD and you . . .'
'x x x Why should we not start now to own him, jointly against the
whole world. After all we love each other and CHAD is the product of
our love."
1. "5. The minor, Chad D. Cuyugan, although illegitimate is
nevertheless entitled to a share in the intestate estate left by
his deceased father, Atty. Ricardo Ocampo as one of the
surviving heirs;
2. "6. The deceased Atty. Ricardo Ocampo, at the time of his
death was the owner of real and personal property, located in
Baguio City, Angeles City and in the Province of Pampanga
with approximate value of several millions of pesos;
3. "7. The estate of the late Atty. Ocampo has not as yet been
inventoried by the defendant and the inheritance of the
surviving heirs including that of said Chad has not likewise
been ascertained;
4. "8. The only known surviving heirs of the deceased Atty.
Ricardo Ocampo are his children, namely: Corito O. Tayag,
Rivina O.Tayag, Evita O. Florendo, Felina Ocampo, and said
minor Chad, for and in whose behalf this instant complaint is
filed;
1. "9. Plaintiff has no means of livelihood and she only depends
on the charity of friends and relatives for the sustenance of her
son, Chad, such that it is urgent, necessary and imperative
that said child be extended financial support from the estate of
his putative father, Atty. Ricardo Ocampo;

58

2. "10. Several demands, verbal and written, have been made for
defendant to grant Chad's lawful inheritance, but despite said
demands, defendant failed and refused and still fails and
refuses to satisfy the claim for inheritance against the estate of
the late Atty. Ocampo;"3
xxx
Plaintiff thereafter prays, among others, that judgment be rendered
ordering defendant to render an inventory and accounting of the real
and personal properties left by Atty. Ricardo Ocampo; to determine
and deliver the share of the minor child Chad in the estate of the
deceased; and to give him support pendente lite.
Petitioner, as defendant therein, filed her answer with counterclaim
on June 3, 1987, disputing the material allega-tions in the complaint.
She maintained by way of affirmative defenses, inter alia, that the
complaint states no cause of action; that the action is premature; that
the suit is barred by prescription; that respondent Cuyugan has no
legal and judicial personality to bring the suit; that the lower court
has no jurisdiction over the nature of the action; and that there is
improper joinder of causes of action. 4
After the hearing of the motion to dismiss on the grounds asserted as
affirmative defenses, the trial court issued the following order on
October 20, 1987:
xxx
The Court is of the considered opinion that there is a need of further
proceedings to adduce evidence on the various claims of the parties so
as to hear their respective sides.
"WHEREFORE, resolution on the preliminary hearing which partakes
of the nature of a motion to dismiss requiring additional evidence is in
the meantime held in abeyance. The Motion to Dismiss is hereby
denied and the case is set for pre-trial x x x."5
With the denial of her motion for reconsideration of said order on
November 19, 1987,6 petitioner filed on December 10, 1987 a petition
for certiorari and prohibition before the Court of Appeals, docketed
therein as CA-G.R. SP No. 13464, which was granted by the Sixth
Division of respondent court on August 2, 1989 and enjoined
respondent judge to resolve petitioner's motion praying for the

dismissal of the complaint based on the affirmative defenses within

ten (10) days from notice thereof.7
In compliance with said decision of respondent court, the trial court
acted on and thereafter denied the motion to dismiss, which had been
pleaded in the affirmative defenses in Civil Case No. 7938, in an order
dated October 24,1989, resolving the said motion in the following
manner:
xxx
"The Court now resolves:
No. 1. The complaint sufficiently shows that a cause of action exists
in favor of the plaintiff. A cause of action being the 'primary right to
redress a wrong' (Marquez vs. Valera, 48 OG 5272), which apparently
on the face of the complaint, plaintiff has a right to enforce through
this case. Defendant's protestation that there is no sufficient cause of
action is therefore untenable.
No. 2. The present action, despite the claim of defendant is not
premature. It is exactly filed in order to prove filiation, and then
recognition. To go about the step by step procedure outlined by the
defendant by filing one action after another is definitely violative of the
prohibition against splitting a cause of action.
No. 3. It is not the plaintiff that is now bringing the case before the
Court. It is (her) spurious child that she represents as natural
guardian that is instituting the action.
No, 4, Prescription has not set in if we consider that a spurious child
may file an action for recognition within four years from his
attainment of majority (New Civil Code, Art, 285, No, 2). Whether the
letters of the putative father, Atty. Ocampo, is evidence, that should
be inquired into in a hearing on the merits.
No. 5. Several causes of action may be joined in one complaint as was
done in this case. The defendant's claim that there was a misjoinder
is untenable.
No. 6. The Court being a court of general jurisdiction, and of special
jurisdiction, such as a probate court has capacity to entertain a
complaint such as the one now before it.

59

'The nature of the case 'CLAIM FOR INHERITANCE' does not control
the body of the complaint.
"From all the foregoing, the Court finds that the complaint is
sufficient in form and substance and, therefore, the motion to dismiss
could not be granted until after trial on the merits in which it should
be shown that the allegations of the complaint are unfounded or a
special defense to the action exists.
"WHEREFORE, the Motion to Dismiss is hereby DENIED." 8
Petitioner's motion for reconsideration of said order was denied by the
trial court on January 30, 1990.9 As a consequence, another petition
for certiorari and prohibition with preliminary injunction was filed by
petitioner on March 12, 1990 with respondent court, docketed as CAG.R. SP No. 20222, praying that the orders dated October 24,1989
and January 30, 1990 of the trial court be annulled and set aside for
having been issued with grave abuse of discretion amounting to lack
or excess of jurisdiction.
On May 10,1990, as earlier stated, respondent court promulgated its
decision dismissing the petition, and likewise denied petitioner's
motion for reconsideration in a resolution dated September 5, 1990,
hence the present petition for review on certiorari.
In elevating the case before us, petitioner relies on these grounds:
1. "a. The Honorable Respondent Court of Appeals dismissed
Petitioner's Petition for Certiorari and Prohibition in UTTER
DISREGARD OF APPLICABLE DECISIONS OF THIS
HONORABLE COURT providing clear exceptions to the general
rule that interlocutory orders may not be elevated by way of
the special civil action of certiorari;
1. "b. Respondent Court refused to resolve certain issues raised
by Petitioner before the Regional Trial Court and before
Respondent Court of Appeals involving QUESTIONS OF
SUBSTANCE not theretofore determined by this Honorable
Court, such as the interpretation and application of Art. 281 of
the Civil Code requiring judicial approval when the recognition
of an illegitimate minor child does not take place in a record of
birth or in a will; of Art. 175, Par. 2, in relation to Art. 172,
Par. 2 of the Family Code, providing for the prescriptive period
with respect to the action to establish illegitimate filiation; and

of Art. 285 of the Civil Code, providing for the prescriptive

period with respect to the action for recognition of a natural
child; and
2. "c. Respondent Court has sanctioned a DEPARTURE by the
Regional Trial Court from the accepted and usual course of
judicial proceedings."10
Petitioner contends that the action to claim for inheritance filed by
herein private respondent in behalf of the minor child, Chad
Cuyugan, is premature and the complaint states no cause of action.
She submits that the recognition of the minor child, either voluntarily
or by judicial action, by the alleged putative father must first be
established before the former can invoke his right to succeed and
participate in the estate of the latter. Petitioner asseverates that since
there is no allegation of such recognition in the complaint
denominated as "Claim for Inheritance," then there exists no basis for
private respondent's aforesaid claim and, consequently, the complaint
should be dismissed.
The instant case is similar to the case of Paulino vs. Paulino, et al.,11
wherein the petitioner, as plaintiff, brought an action against the
private respondents, as defendants, to compel them to give her share
of inheritance in the estate of the late Marcos Paulino, claiming and
alleging, inter alia, that she is the illegitimate child of the deceased;
that no proceedings for the settlement of the deceased's estate had
been commenced in court; and that the defendants had refused and
failed to deliver her share in the estate of the deceased. She
accordingly prayed that the defendants therein be ordered to deliver
her aforesaid share. The defendants moved for the dismissal of her
complaint on the ground that it states no cause of action and that,
even if it does, the same is barred by prescription.
The only difference between the aforecited case and the case at bar is
that at the time of the filing of the complaint therein, the petitioner in
that case had already reached the age of majority, whereas the
claimant in the present case is still a minor. In Paulino, we held that
an illegitimate child, to be entitled to support and successional rights
from the putative or presumed parent, must prove his filiation to the
latter. We also said that it is necessary to allege in the complaint that
the putative father had acknowledged and recognized the illegitimate
child because such acknowledgment is essential to and is the basis of
the right to inherit. There being no allegation of such
acknowledgment, the action becomes one to compel recognition which
cannot be brought after the death of the putative father. The ratio
decidendi in Paulino, therefore, is not the absence of a cause of action

60

for failure of the petitioner to allege the fact of acknowledgment in the

complaint, but the prescription of the action.

The next question to be resolved is whether the action to compel

recognition has prescribed.

Applying the foregoing principles to the case at bar, although

petitioner contends that the complaint filed by herein private
respondent merely alleges that the minor Chad Cuyugan is an
illegitimate child of the deceased and is actually a claim for
inheritance, from the allegations therein the same may be considered
as one to compel recognition. Further, that the two causes of action,
one to compel recognition and the other to claim inheritance, may be
joined in one complaint is not new in our jurisprudence.

Petitioner argues that assuming arguendo that the action is one to

compel recognition, private respondent's cause of action has
prescribed for the reason that since filiation is sought to be proved by
means of a private handwritten instrument signed by the parent
concerned, then under paragraph 2, Article 175 of the Family Code,
the action to establish filiation of the illegitimate minor child must be
brought during the lifetime of the alleged putative father. In the case
at bar, considering that the complaint was filed after the death of the
alleged parent, the action has prescribed and this is another ground
for the dismissal of the complaint. Petitioner theorizes that Article 285
of the Civil Code is not applicable to the case at bar and, instead,
paragraph 2, Article 175 of the Family Code should be given
retroactive effect. The theory is premised on the supposition that the
latter provision of law being merely procedural in nature, no vested
rights are created, hence it can be made to apply retroactively.

As early as 1992, we had occasion to rule thereon in Briz vs. Briz, et

al.,12 wherein we said:
The question whether a person in the position of the present plaintiff
can in any event maintain a complex action to compel recognition as a
natural child and at the same time to obtain ulterior relief in the
character of heir, is one which in the opinion of this court must be
answered in the affirmative, provided always that the conditions
justifying the joinder of the two distinct causes of action are present
in the particular case. In other words, there is no absolute necessity
requiring that the action to compel acknowledgment should have been
instituted and prosecuted to a successful conclusion prior to the
action in which that same plaintiff seeks additional relief in the
character of heir. Certainly, there is nothing so peculiar to the action
to compel acknowledgment as to require that a rule should be here
applied different from that generally applicable in other cases. x x x.
"The conclusion above stated, though not heretofore explicitly
formulated by this court, is undoubtedly to some extent supported by
our prior decisions. Thus, we have held in numerous cases, and the
doctrine must be considered well settled, that a natural child having a
right to compel acknowledgment, but who has not been in fact legally
acknowledged, may maintain partition proceedings for the division of
the inheritance against his coheirs x x x; and the same person may
intervene in proceedings for the distribution of the estate of his
deceased natural father, or mother x x x. In neither of these situations
has it been thought necessary for the plaintiff to show a prior decree
compelling acknowledgment. The obvious reason is that in partition
suits and distribution proceedings the other persons who might take
by inheritance are before the court; and the declaration of heirship is
appropriate to such proceedings."

Article 285 of the Civil Code provides:

"Art. 285. The action for the recognition of natural children may be
brought only during the lifetime of the presumed parents, except in
the following cases:
1. (1) If the father or mother died during the minority of the child,
in which case the latter may file the action before the
expiration of four years from the attainment of his majority;"
xxx
On the other hand, Article 175 of the Family Code reads:
"Art. 175, Illegitimate children may establish their illegitimate filiation
in the same way and on the same evidence as legitimate children.
The action must be brought within the same period specified in Article
173, except when the action is based on the second paragraph of
Article 172, in which case the action may be brought during the
lifetime of the alleged parent"
Under the last-quoted provision of law, therefore, if the action is
based on the record of birth of the child, a final judgment, or an
admission by the parent of the child's filiation in a public document

61

or in a private handwritten signed instrument, then the action may be

brought during the lifetime of the child. However, if the action is
based on the open and continuous possession by the child of the
status of an illegitimate child, or on other evidence allowed by the
Rules of Court and special laws, the view has been expressed that the
action must be brought during the lifetime of the alleged parent. 13
Petitioner submits that Article 175 of the Family Code applies in
which case the complaint should have been filed during the lifetime of
the putative father, failing which the same must be dismissed on the
ground of prescription. Private respondent, however, insists that
Article 285 of the Civil Code is controlling and, since the alleged
parent died during the minority of the child, the action for filiation
may be filed within four years from the attainment of majority of the
minor child,
Article 256 of the Family Code states that "[t]his Code shall have
retroactive effect insofar as it does not prejudice or impair vested or
acquired rights in accordance with the Civil Code or other laws." It
becomes essential, therefore, to determine whether the right of the
minor child to file an action for recognition is a vested right or not.
Under the circumstances obtaining in the case at bar, we hold that
the right of action of the minor child has been vested by the filing of
the complaint in court under the regime of the Civil Code and prior to
the effectivity of the Family Code.14 We herein adopt our ruling in the
recent case of Republic of the Philippines vs. Court of Appeals, et al.15
where we held that the fact of filing of the petition already vested in
the petitioner her right to file it and to have the same proceed to final
adjudication in accordance with the law in force at the time, and such
right can no longer be prejudiced or impaired by the enactment of a
new law.

complaint in court. The trial court is, therefore, correct in applying

the provisions of Article 285 of the Civil Code and in holding that
private respondent's cause of action has not yet prescribed.
Finally, we conform with the holding of the Court of Appeals that the
questioned order of the court below denying the motion to dismiss is
interlocutory and cannot be the subject of a petition for certiorari. The
exceptions to this rule invoked by petitioner and allegedly obtaining in
the case at bar, are obviously not present and may not be relied upon.
WHEREFORE, the petition at bar is DENIED and the assailed
decision and resolution of respondent Court of Appeals are hereby
AFFIRMED in toto.
SO ORDERED.
Narvasa (C.J., Chairman), Paras and Padilla, JJ., concur.
Nocon, J., On leave.
Petition denied; decision affirmed in toto.
Note.Law in force at the time of recognition governs the act of
recognition (Lim vs. Court of Appeals, 65 SCRA 160).
Recognition must be made in the record of birth, in a will, or in some
other public document (Lim vs. Court of Appeals, 65 SCRA 160).

Even assuming ex gratia argumenti that the provision of the Family

Code in question is procedural in nature, the rule that a statutory
change in matters of procedure may affect pending actions and
proceedings, unless the language of the act excludes them from its
operation, is not so pervasive that it may be used to validate or
invalidate proceedings taken before it goes into effect, since procedure
must be governed by the law regulating it at the time the question of
procedure arises especially where vested rights may be prejudiced.
Accordingly, Article 175 of the Family Code finds no proper
application to the instant case since it will ineluctably affect adversely
a right of private respondent and, consequentially, of the minor child
she represents, both of which have been vested with the filing of the

62

G.R. No. 108366. February 16, 1994.*

JOHN PAUL E. FERNANDEZ, ET AL., petitioners, vs. THE COURT
OF APPEALS and CARLITO S. FERNANDEZ, respondents.
Evidence; Appeals; Findings of facts of the Court of Appeals may be
reviewed by the Supreme Court only under exceptional circumstances,
such as when the findings of the appellate court clash with those of the
trial court.The rule is well-settled that findings of facts of the Court
of Appeals may be reviewed by this court only under exceptional
circumstances. One such situation is when the findings of the
appellate court clash with those of the trial court as in the case at
bench. It behooves use therefore to exercise our extraordinary power,
and settle the issue of whether the ruling of the appellate court that
private respondent is not the father of the petitioners is substantiated
by the evidence on record.
Same; Family Relations; Paternity and Filiation; Documentary evidence
rejected as insufficient to prove filiation; Photographs of a person at
baptism and in the house do not prove that he is the father.We shall
first examine the documentary evidence offered by the petitioners
which the respondent court rejected as insufficient to prove their
filiation. Firstly, we hold that petitioners cannot rely on the
photographs showing the presence of the private respondent in the
baptism of petitioner Claro. These photographs are far from proofs
that private respondent is the father of petitioner Claro. As explained
by the private respondent, he was in the baptism as one of the
sponsors of petitioner Claro. Secondly, the pictures taken in the
house of Violeta showing private respondent showering affection to
Claro fall short of the evidence required to prove paternity.
Same; Same; Same; Same; Baptismal Certificate has scant evidentiary
value.Thirdly, the baptismal certificate of petitioner Claro naming
private respondent as his father has scant evidentiary value. There is
no showing that private respondent participated in its preparation. In
Macandang v. Court of Appeals, 100 SCRA 73 (1980), we also ruled
that while baptismal certificates may be considered public
documents, they can only serve as evidence of the administration of
the sacraments on the dates so specified. They are not necessarily
competent evidence of the veracity of entries therein with respect to
the childs paternity.

Same; Same; Same; Same; Certificate of live birth where the alleged
father not shown to have had a hand in its preparation not competent
evidence of paternity.Fourth, the certificates of live birth of the
petitioners identifying private respondent as their father are not also
competent evidence on the issue of their paternity. Again, the records
do not show that private respondent had a hand in the preparation of
said certificates. In rejecting these certificates, the ruling of the
respondent court is in accord with our pronouncement in Roces v.
Local Civil Registrar, 102 Phil. 1050 (1958). We reiterated this rule in
Berciles v. Systems, 128 SCRA 53 (1984), when we held that a birth
certificate not signed by the alleged father therein indicated is not
competent evidence of paternity.
Same; Same; Same; Court not prepared to concede that the priest who
officiates numerous baptismal ceremonies can remember the parents of
the children he has baptized in the absence of proof that he is a close
friend of the alleged parents.Petitioners capitalize on the testimony
of Father Liberato Fernandez who solemnized the baptismal ceremony
of petitioner Claro. However, on cross examination, Father Fernandez
admitted that he has to be shown a picture of the private respondent
by Violeta Esguerra to recognize the private respondent. Indeed, there
is no proof that Father Fernandez is a close friend of Violeta Esguerra
and the private respondent which should render unquestionable his
identification of the private respondent during petitioner Claros
baptism. In the absence of this proof, we are not prepared to concede
that Father Fernandez who officiates numerous baptismal ceremonies
day in and day out can remember the parents of the children he has
baptized.
PETITION for review of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Erlinda B. Espejo for petitioners.
C.B. Carbon & Associates for private respondent.
PUNO, J.:
The legal dispute between the parties began when the petitioners filed
Civil Case No. Q-45567 for support against the private respondent
before the RTC of Quezon City. The complaint was dismissed on
December 9, 1986 by Judge Antonio P. Solano,1 who found that
(t)here is nothing in the material allegations in the complaint that

63

seeks to compel (private respondent) to recognize or acknowledge

(petitioners) as his illegitimate children, and that there was no
sufficient and competent evidence to prove the petitioners filiation. 2
Petitioners plodded on. On February 19, 1987, they filed the case at
bench, another action for recognition and support against the private
respondent before another branch of the RTC of Quezon City, Branch
87. The case was docketed as Civil Case No. Q-50111.
The evidence shows that VIOLETA P. ESGUERRA, single, is the
mother and guardian ad litem of the two petitioners, CLARO ANTONIO
FERNANDEZ and JOHN PAUL FERNANDEZ. Violeta and the private
respondent, CARLITO S. FERNANDEZ, met sometime in 1983, at the
Meralco Compound tennis courts. A Meralco employee and a tennis
enthusiast, Carlito used to spend his week-ends regularly at said
courts, where Violetas father served as tennis instructor.
Violeta pointed to Carlito as the father of her two sons. She claimed
that they started their illicit sexual relationship six (6) months after
their first meeting. The tryst resulted in the birth of petitioner Claro
Antonio on March 1, 1984, and of petitioner John Paul on February
11, 1985. Violeta further claimed that she did not know that Carlito
was married until the birth of her two children. She averred they were
married in civil rites in October, 1983. In March, 1985, however, she
discovered that the marriage license which they used was spurious.
To bolster their case, petitioners presented the following documentary
evidence: their certificates of live birth, identifying respondent Carlito
as their father; the baptismal certificate of petitioner Claro which also
states that his father is respondent Carlito; photographs of Carlito
taken during the baptism of petitioner Claro; and pictures of
respondent Carlito and Claro taken at the home of Violeta Esguerra.
Petitioners likewise presented as witnesses, Rosario Cantoria, 3 Dr.
Milagros Villanueva,4 Ruby Chua Cu,5 and Fr. Liberato Fernandez. 6
The first three witnesses told the trial court that Violeta Esguerra had,
at different times,7 introduced the private respondent to them as her
husband. Fr. Fernandez, on the other hand, testified that Carlito
was the one who presented himself as the father of petitioner Claro
during the latters baptism.
In defense, respondent Carlito denied Violetas allegations that he
sired the two petitioners. He averred he only served as one of the
sponsors in the baptism of petitioner Claro. This claim was

corroborated by the testimony of Rodante Pagtakhan, an officemate of

respondent Carlito who also stood as a sponsor of petitioner Claro
during his baptism. The private respondent also presented as witness,
Fidel Arcagua, a waiter of the Lighthouse Restaurant. He disputed
Violetas allegation that she and respondent Carlito frequented the
said restaurant during their affair. Arcagua stated he never saw
Violeta Esguerra and respondent Carlito together at the said
restaurant. Private respondent also declared he only learned he was
named in the birth certificates of both petitioners as their father after
he was sued for support in Civil Case No. Q-45567.
Based on the evidence adduced by the parties, the trial court ruled in
favor of petitioners, viz.:
In view of the above, the Court concludes and so holds that the
plaintiffs minors (petitioners herein) are entitled to the reliefs prayed
for in the complaint. The defendant (herein private respondent) is
hereby ordered to recognize Claro Antonio Carlito Fernandez, now
aged 6, and John Paul Fernandez, now aged 4 1/2, as his sons. As
the defendant has admitted that he has a supervisory job at the
Meralco, he shall give the plaintiffs support in the amount of P2,000
each a month, payment to be delivered to Violeta Esguerra, the
childrens mother and natural guardian, within the first five (5) days
of the month, with arrears reckoned as of the filing of the complaint
on February 19, 1987.
SO ORDERED.
On appeal, the decision was set aside and petitioners complaint
dismissed by the respondent Court of Appeals8 in its impugned
decision, dated October 20, 1992. It found that the proof relied upon
by the (trial) court (is) inadequate to prove the (private respondents)
paternity and filiation of (petitioners). It further held that the doctrine
of res judicata applied because of the dismissal of the petitioners
complaint in Civil Case No. Q-45567. Petitioners motion for
reconsideration was denied on December 22, 1892.
Petitioners now contend that the respondent appellate court erred in:
(1) not giving full faith and credit to the testimony of Violeta Esguerra;
(2) not giving weight and value to the testimony of Father Liberato
Fernandez; (3) not giving probative value to the numerous pictures of
respondent Carlito Fernandez taken during the baptismal ceremony
and inside the bedroom of Violeta Esguerra; (4) not giving probative
value to the birth certificates of petitioners; (5) giving so much
credence to the self-serving and incredible testimony of respondent

64

Carlito Fernandez; and (6) holding that the principle of res judicata is
applicable in the case at bar.
We find no merit in the petition.
The rule is well-settled that findings of facts of the Court of Appeals
may be reviewed by this court only under exceptional circumstances.
One such situation is when the findings of the appellate court clash
with those of the trial court as in the case at bench. It behooves us
therefore to exercise our extraordinary power, and settle the issue of
whether the ruling of the appellate court that private respondent is
not the father of the petitioners is substantiated by the evidence on
record.
We shall first examine the documentary evidence offered by the
petitioners which the respondent court rejected as insufficient to
prove their filiation. Firstly, we hold that petitioners cannot rely on
the photographs showing the presence of the private respondent in
the baptism of petitioner Claro (Exh. B-8, Exh. B-12, Exh. H and
Exh. I). These photographs are far from proofs that private
respondent is the father of petitioner Claro. As explained by the
private respondent, he was in the baptism as one of the sponsors of
petitioner Claro. His testimony was corroborated by Rodante
Pagtakhan.
Secondly, the pictures taken in the house of Violeta showing private
respondent showering affection to Claro fall short of the evidence
required to prove paternity (Exhibits B, B-1, B-2, B-7, B-14
and B-15). As we held in Tan vs. Trocio, 192 SCRA 764, viz:

As to the baptismal certificate, Exh. 7-A, the rule is that although

the baptismal record of a natural child describes her as a child of the
decedent, yet, if in the preparation of the record the decedent had no
intervention, the baptismal record cannot be held to be a voluntary
recognition of parentage. x x x The reason for this rule that canonical
records do not constitute the authentic document prescribed by Arts.
115 and 117 to prove the legitimate filiation of a child is that such
canonical record is simply proof of the only act to which the priest
may certify by reason of his personal knowledge, an act done by
himself or in his presence, like the administration of the sacrament
upon a day stated; it is no proof of the declarations in the record with
respect to the parentage of the child baptized, or of prior and distinct
facts which require separate and concrete evidence.
In Macandang vs. Court of Appeals, 100 SCRA 73 (1980), we also
ruled that while baptismal certificates may be considered public
documents, they can only serve as evidence of the administration of
the sacraments on the dates so specified. They are not necessarily
competent evidence of the veracity of entries therein with respect to
the childs paternity.
Fourth, the certificates of live birth (Exh. A, Exh. B) of the
petitioners identifying private respondent as their father are not also
competent evidence on the issue of their paternity. Again, the records
do not show that private respondent had a hand in the preparation of
said certificates. In rejecting these certificates, the ruling of the
respondent court is in accord with our pronouncement in Roces vs.
Local Civil Registrar, 102 Phil. 1050 (1958), viz:

x x x The testimonies of complainant and witness Marilou

Pangandaman, another maid, to show unusual closeness between
Respondent and Jewel, like playing with him and giving him toys, are
not convincing enough to prove paternity. The same must be said of x
x x (the) pictures of Jewels and Respondent showing allegedly their
physical likeness to each other. Said evidence is inconclusive to prove
paternity and much less would prove violation of complainants
person and honor. (Italics supplied)

x x x Section 5 of Act No. 3793 and Article 280 of the Civil Code of
the Philippines explicitly prohibited, not only the naming of the father
or the child born outside wedlock, when the birth certificate, or the
recognition, is not filed or made by him, but, also, the statement of
any information or circumstances by which he could be identified.
Accordingly, the Local Civil Registrar had no authority to make or
record the paternity of an illegitimate child upon the information of a
third person and the certificate of birth of an illegitimate child, when
signed only by the mother of the latter, is incompetent evidence of
fathership of said child. (Italics supplied)

Thirdly, the baptismal certificate (Exh. D) of petitioner Claro naming

private respondent as his father has scant evidentiary value. There is
no showing that private respondent participated in its preparation. On
this score, we held in Berciles vs. Systems, et al. 128 SCRA 53 (1984):

We reiterated this rule in Berciles, op. cit, when we held that a birth
certificate not signed by the alleged father therein indicated is not
competent evidence of paternity.

65

We have also reviewed the relevant testimonies of the witnesses for

the petitioners and we are satisfied that the respondent appellate
court properly calibrated their weight. Petitioners capitalize on the
testimony of Father Liberato Fernandez who solemnized the baptismal
ceremony of petitioner Claro. He declared on the witness stand:
Q Do you recall Father, whether on that occasion when you called for
the father and the mother of the child, that both father and mother
were present?
A Yes.
Q Would you able to recognize the father and the mother who were
present at that time?
A Yes.
Q Please point to the court?
A There (witness pointing to the defendant, Carlito Fernandez).
Q For instance, just give us more specifically what question do you
remember having asked him?
A Yes, like for example, do you renounce Satan and his works?
Q What was the answer of Fernandez?
A Yes, I do.
Q I just want to be sure, Father, will you please look at the defendant
again. I want to be sure if he is the person who appeared before
you on that occasion?
A I am sure.
(TSN, May 23, 1986, pp. 14-16)
However, on cross examination, Father Fernandez admitted that he
has to be shown a picture of the private respondent by Violeta
Esguerra to recognize the private respondent, viz:

Q
A
Q
A
Q
A
Q
A

When was the, approximately, when you were first shown this
picture by Violeta Esguerra?
I cannot recall.
At least the month and the year?
It must be in 1986.
What month in 1986?
It is difficult. . .
When was the first time you know you are going to testify here?
Let us see, you came there two times and first one was you want to

get a baptismal certificate and then the second time was I asked
you for what is this? And you said it is for the court.
Q On the second time that Ms. Violeta Esguerra went to your place,
you were already informed that you will testify here before this
Honorable Court?
A Yes.
Q And you were shown this picture?
A Yes.
Q And you were informed by this Ms. Violeta Esguerra that this man
wearing the blue T-shirt is the father?
A Yes, sir.
Q So, it was Violeta Esguerra who . . .
A Yes.
(TSN, May 23, 1986, pp. 18 to 22)
Indeed, there is no proof that Father Fernandez is a close friend of
Violeta Esguerra and the private respondent which should render
unquestionable his identification of the private respondent during
petitioner Claros baptism. In the absence of this proof, we are not
prepared to concede that Father Fernandez who officiates numerous
baptismal ceremonies day in and day out can remember the parents
of the children he has baptized.
We cannot also disturb the findings of the respondent court on the
credibility of Violeta Esguerra. Her testimony is highly suspect as it is
self-serving and by itself, is insufficient to prove the paternity of the
petitioners.
We shall not pass upon the correctness of the ruling of the
respondent appellate court applying the doctrine of res judicata as
additional reason in dismissing petitioners action for recognition and
support. It is unnecessary considering our findings that petitioners
evidence failed to substantiate their cause of action.
IN VIEW WHEREOF, the petition is DISMISSED and the Decision of
the respondent court CA-G.R. CV No. 29182 is AFFIRMED. Costs
against petitioners.
SO ORDERED.
Narvasa (C.J., Chairman), Padilla, Regalado and Nocon, JJ.,
concur.

66

Petition dismissed; Reviewed decision affirmed.

67

G.R. No. 124814. October 21, 2004.*

CAMELO CABATANIA, petitioner, vs. COURT OF APPEALS and
CAMELO REGODOS, respondents.
Courts; Appeals; Factual findings of the trial court, when adopted and
confirmed by the Court of Appeals, become final and conclusive and
may not be reviewed on appeal; except (1) when the inference made is
manifestly mistaken, absurd or impossible; (2) when there is a grave
abuse of discretion; (3) when the finding is grounded entirely on
speculation, surmises or conjectures; (4) when the judgment of the
Court of Appeals is based on misapprehension of facts; (5) when the
findings of fact are conflicting; (6) when the Court of Appeals, in making
its findings, goes beyond the issues of the case and the same is
contrary to the admissions of both appellant and appellee; (7) when the
findings of the Court of Appeals are contrary to those of the trial court;
(8) when the findings of fact are conclusions without citation of specific
evidence on which they are based; (9) when the Court of Appeals
manifestly overlooks certain relevant facts not disputed by the parties
and which, if properly considered, justifies a different conclusion, and
(10) when the findings of fact of the Court of Appeals are premised on
the absence of evidence and are contradicted by the evidence on
record.Factual findings of the trial court, when adopted and
confirmed by the Court of Appeals, become final and conclusive and
may not be reviewed on appeal; except (1) when the inference made is
manifestly mistaken, absurd or impossible; (2) when there is a grave
abuse of discretion; (3) when the finding is grounded entirely on
speculation, surmises or conjectures; (4) when the judgment of the
Court of Appeals is based on misapprehension of facts; (5) when the
findings of fact are conflicting; (6) when the Court of Appeals, in
making its findings, goes beyond the issues of the case and the same
is contrary to the admissions of both appellant and appellee; (7) when
the findings of the Court of Appeals are contrary to those of the trial
court; (8) when the findings of fact are conclusions without citation of
specific evidence on which they are based; (9) when the Court of
Appeals manifestly overlooks certain relevant facts not disputed by
the parties and which, if properly considered, justifies a different
conclusion; and (10) when the findings of fact of the Court of Appeals
are premised on the absence of evidence and are contradicted by the
evidence on record. The Court is convinced that this case falls within
one of the exceptions.

Family Code; Filiation; An order for recognition and support may create
an unwholesome situation or may be an irritant to the family or the
lives of the parties so that it must be issued only if paternity or filiation
is established by clear and convincing evidence. Time and again, this
Court has ruled that a high standard of proof is required to establish
paternity and filiation. An order for recognition and support may
create an unwholesome situation or may be an irritant to the family
or the lives of the parties so that it must be issued only if paternity or
filiation is established by clear and convincing evidence.
Same; Same; Birth Certificate; A certificate of live birth purportedly
identifying the putative father is not competent evidence of paternity
when there is no showing that the putative father had a hand in the
preparation of said certificate.A certificate of live birth purportedly
identifying the putative father is not competent evidence of paternity
when there is no showing that the putative father had a hand in the
preparation of said certificate. The local civil registrar has no
authority to record the paternity of an illegitimate child on the
information of a third person.
Same; Same; Same; Baptismal Certificate; While a baptismal certificate
may be considered a public document, it can only serve as evidence of
the administration of the sacrament on the date specified but not the
veracity of the entries with respect to the childs paternity.While a
baptismal certificate may be considered a public document, it can
only serve as evidence of the administration of the sacrament on the
date specified but not the veracity of the entries with respect to the
childs paternity.
Same; Same; Same; Same; Certificates issued by the local civil registrar
and baptismal certificates are per se inadmissible in evidence as proof
of filiation and they cannot be admitted indirectly as circumstantial
evidence to prove the same.Certificates issued by the local civil
registrar and baptismal certificates are per se inadmissible in
evidence as proof of filiation and they cannot be admitted indirectly as
circumstantial evidence to prove the same.
Same; Same; The presumption of legitimacy does not only flow out of a
declaration in the statute but is based on the broad principles of natural
justice and the supposed virtue of the motherthe presumption is
grounded on the policy to protect innocent offspring from the odium of
illegitimacy.The fact that Florencias husband is living and there is a
valid subsisting marriage between them gives rise to the presumption
that a child born within that marriage is legitimate even though the
mother may have declared against its legitimacy or may have been

68

sentenced as an adulteress. The presumption of legitimacy does not

only flow out of a declaration in the statute but is based on the broad
principles of natural justice and the supposed virtue of the mother.
The presumption is grounded on the policy to protect innocent
offspring from the odium of illegitimacy.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Samuel SM Lezama for petitioner.
Public Attorneys Office for respondent.
CORONA, J.:
Before us is a petition for review on certiorari under Rule 45 of the
Rules of Court assailing the March 15, 1996 decision 1 of the Court of
Appeals in CA-G.R. 36708 which in turn affirmed the decision of the
Regional Trial Court of Cadiz City, Branch 60 in Spec. Proc. No. 88-C
which compelled petitioner Camelo Cabatania to acknowledge private
respondent Camelo Regodos as his illegitimate son and to give
support to the latter in the amount of P500 per month.
This controversy stemmed from a petition for recognition and support
filed by Florencia Regodos in behalf of her minor son, private
respondent Camelo Regodos.
During the trial, Florencia testified that she was the mother of private
respondent who was born on September 9, 1982 and that she was the
one supporting the child. She recounted that after her husband left
her in the early part of 1981, she went to Escalante, Negros
Occidental to look for work and was eventually hired as petitioners
household help. It was while working there as a maid that, on
January 2, 1982, petitioner brought her to Bacolod City where they
checked in at the Visayan Motel and had sexual intercourse.
Petitioner promised to support her if she got pregnant.
Florencia claimed she discovered she was carrying petitioners child
27 days after their sexual encounter. The sexual intercourse was
repeated in March 1982 in San Carlos City. Later, on suspicion that
Florencia was pregnant, petitioners wife sent her home. But
petitioner instead brought her to Singcang, Bacolod City where he
rented a house for her. On September 9, 1982, assisted by a hilot in

her aunts house in Tiglawigan, Cadiz City, she gave birth to her child,
private respondent Camelo Regodos.
Petitioner Camelo Cabatanias version was different. He testified that
he was a sugar planter and a businessman. Sometime in December,
1981, he hired Florencia as a servant at home. During the course of
her employment, she would often go home to her husband in the
afternoon and return to work the following morning. This displeased
petitioners wife, hence she was told to look for another job.
In the meantime, Florencia asked permission from petitioner to go
home and spend New Years Eve in Cadiz City. Petitioner met her on
board the Ceres bus bound for San Carlos City and invited her to
dinner. While they were eating, she confided that she was hard up
and petitioner offered to lend her save money. Later, they spent the
night in San Carlos City and had sexual intercourse. While doing it,
he felt something jerking and when he asked her about it, she told
him she was pregnant with the child of her husband. They went home
the following day.
In March 1982, Florencia, then already working in another
household, went to petitioners house hoping to be reemployed as a
servant there. Since petitioners wife was in need of one, she was rehired. However petitioners wife noticed that her stomach was bulging
and inquired about the father of the unborn child. She told
petitioners wife that the baby was by her husband. Because of her
condition, she was again told to go home and they did not see each
other anymore.
Petitioner was therefore surprised when summons was served on him
by Florencias counsel. She was demanding support for private
respondent Camelo Regodos. Petitioner refused, denying the alleged
paternity. He insisted she was already pregnant when they had sex.
He denied going to Bacolod City with her and checking in at the
Visayan Motel. He vehemently denied having sex with her on January
2, 1982 and renting a house for her in Singcang, Bacolod City.
After trial, the court a quo gave more probative weight to the
testimony of Florencia despite its discovery that she misrepresented
herself as a widow when, in reality, her husband was alive. Deciding
in favor of private respondent, the trial court declared:
The child was presented before the Court, and if the Court is to
decide this case, based on the personal appearance of the child then

69

there can never be a doubt that the plaintiff-minor is the child of the
defendant with plaintiff-minors mother, Florencia Regodos.
xxx

xxx

2. B. THE COURT OF APPEALS ERRED IN ITS DECISION BASED

ON THE EVIDENCE ADDUCED BY RESPONDENT CAMELO
REGODOS BEFORE THE TRIAL COURT.4

xxx

In view of the evidence presented by the plaintiff, the Court finds the
evidence of the plaintiff in support of the claim to be meritorious;
defendant admitted having a sexual intercourse with the plaintiff s
mother, Florencia Regodos, but denied paternity to the child. The
child was presented before the Court, and if the Court is to decide this
case, based on the personal appearance of the child, then there can
never be a doubt that the plaintiff-minor is the child of the defendant
with plaintiff-minors mother, Florencia Regodos.2
On appeal, the Court of Appeals affirmed the RTC:
The misrepresentation made by Florencia in the petition that she was
a widow should not prejudice the right of petitioner-appellee. As held
by the Supreme Court, even where a witness has been found to have
deliberately falsified the truth in some particulars, it is not required
that the whole of her testimony be rejected (People vs. Bohol, 170
SCRA 585). It is perfectly reasonable to believe the testimony of a
witness with respect to some facts and disbelieve it with respect to
other facts (People vs. Delas, 199 SCRA 574, 575). There is therefore
no reason to disbelieve Florencia that her first intercourse with
appellant occurred on January 2, 1982 and nine (9) months later or
on September 9, 1982, she gave birth to appellee (TSN, Hearing of
June 10, 1991 and Exhibit A).
In the absence of arbitrariness in the evaluation of the evidence
adduced before the trial court and there being no evidence that the
latter had overlooked or misappreciated, we find no cogent reason to
disturb the trial courts findings.
WHEREFORE, the appealed decision is AFFIRMED.3
Hence this petition which assigns the following errors:
1. A. THE COURT OF APPEALS ERRED IN ITS APPLICATION OF
ARTICLE 283 OF THE CIVIL CODE ON THE COMPULSORY
RECOGNITION AND AWARD OF SUPPORT IN FAVOR OF
RESPONDENT-APPELLEE CAMELO REGODOS;

Clearly, this petition calls for a review of the factual findings of the
two lower courts. As a general rule, factual issues are not within the
province of this Court. Factual findings of the trial court, when
adopted and confirmed by the Court of Appeals, become final and
conclusive and may not be reviewed on appeal except: (1) when the
inference made is manifestly mistaken, absurd or impossible; (2)
when there is a grave abuse of discretion; (3) when the finding is
grounded entirely on speculation, surmises or conjectures; (4) when
the judgment of the Court of Appeals is based on misapprehension of
facts; (5) when the findings of fact are conflicting; (6) when the Court
of Appeals, in making its findings, goes beyond the issues of the case
and the same is contrary to the admissions of both appellant and
appellee; (7) when the findings of the Court of Appeals are contrary to
those of the trial court; (8) when the findings of fact are conclusions
without citation of specific evidence on which they are based; (9) when
the Court of Appeals manifestly overlooks certain relevant facts not
disputed by the parties and which, if properly considered, justifies a
different conclusion; and (10) when the findings of fact of the Court of
Appeals are premised on the absence of evidence and are contradicted
by the evidence on record. The Court is convinced that this case falls
within one of the exceptions.5
The trial courts finding of a paternal relationship between petitioner
and private respondent was based on the testimony of the childs
mother and the personal appearance of the child.
Time and again, this Court has ruled that a high standard of proof is
required to establish paternity and filiation. 6 An order for recognition
and support may create an unwholesome situation or may be an
irritant to the family or the lives of the parties so that it must be
issued only if paternity or filiation is established by clear and
convincing evidence.7
The applicable provisions of the law are Articles 172 and 175 of the
Civil Code:
Art. 172. The filiation of legitimate children is established by any of
the following:

70

1. (1) The record of birth appearing in the civil register or a final

judgment; or
2. (2) An admission of legitimate filiation in a public document or
a private handwritten instrument and signed by the parent
concerned.
In the absence of the foregoing evidence, the legitimate filiation shall
be proved by:
1. (1) The open and continuous possession of the status of a
legitimate child; or
2. (2) Any other means allowed by the Rules of Court and special
laws.
Art. 175. Illegitimate children may establish their illegitimate filiation
in the same way and on the same evidence as legitimate children.
xxx

xxx

xxx

Private respondent presented a copy of his birth and baptismal

certificates, the preparation of which was without the knowledge or
consent of petitioner. A certificate of live birth purportedly identifying
the putative father is not competent evidence of paternity when there
is no showing that the putative father had a hand in the preparation
of said certificate. The local civil registrar has no authority to record
the paternity of an illegitimate child on the information of a third
person.8
In the same vein, we have ruled that, while a baptismal certificate
may be considered a public document, it can only serve as evidence of
the administration of the sacrament on the date specified but not the
veracity of the entries with respect to the childs paternity. 9 Thus,
certificates issued by the local civil registrar and baptismal certificates
are per se inadmissible in evidence as proof of filiation and they
cannot be admitted indirectly as circumstantial evidence to prove the
same.10
Aside from Florencias self-serving testimony that petitioner rented a
house for her in Singcang, Bacolod City, private respondent failed to
present sufficient proof of voluntary recognition.

was a widow. Both courts dismissed the lie as minor which did not
affect the rest of her testimony. We disagree. The fact that Florencias
husband is living and there is a valid subsisting marriage between
them gives rise to the presumption that a child born within that
marriage is legitimate even though the mother may have declared
against its legitimacy or may have been sentenced as an adulteress. 11
The presumption of legitimacy does not only flow out of a declaration
in the statute but is based on the broad principles of natural justice
and the supposed virtue of the mother. The presumption is grounded
on the policy to protect innocent offspring from the odium of
illegitimacy.12
In this age of genetic profiling and deoxyribonucleic acid (DNA)
analysis, the extremely subjective test of physical resemblance or
similarity of features will not suffice as evidence to prove paternity
and filiation before the courts of law.
WHEREFORE, the petition is hereby GRANTED. The assailed decision
of the Court of Appeals in CA-G.R. 36708 dated March 15, 1996,
affirming the decision of the Regional Trial Court of Cadiz City,
Branch 60, in Spec. Proc. No. 88-C is REVERSED and SET ASIDE.
Private respondents petition for recognition and support is dismissed.
SO ORDERED.
Panganiban (Chairman), Sandoval-Gutierrez, Carpio-Morales and
Garcia, JJ., concur.
Petition granted, assailed decision reversed and set aside.
Note.The due recognition of illegitimate children in a record of birth,
a will, a statement before a court of record, or in any authentic writing
is, in itself, a consummated act of acknowledgment of the child, and
no further court action is required, but where a claim for recognition
is predicated on other evidence merely tending to prove paternity,
judicial action within the applicable statute of limitations is essential
in order to establish the childs acknowledgment. (De Jesus vs. Estate
of Decedent Juan Gamboa Dizon, 366 SCRA 499 [2001]).

We now proceed to the credibility of Florencias testimony. Both the

trial court and the appellate court brushed aside the
misrepresentation of Florencia in the petition for recognition that she

71

that trial proceeds despite the deliberate delay and refusal to proceed
on the part of one party.
G.R. No. 180284.
NARCISO SALAS,
respondent.

September 11, 2013.*

petitioner,

vs.

ANNABELLE

MATUSALEM,

Remedial Law; Civil Procedure; Venue; In personal actions, the Rules

give the plaintiff the option of choosing where to file his complaint. He
can file it in the place (1) where he himself or any of them resides, or (2)
where the defendant or any of the defendants resides or may be
found.It is a legal truism that the rules on the venue of personal
actions are fixed for the convenience of the plaintiffs and their
witnesses. Equally settled, however, is the principle that choosing the
venue of an action is not left to a plaintiffs caprice; the matter is
regulated by the Rules of Court. In personal actions such as the
instant case, the Rules give the plaintiff the option of choosing where
to file his complaint. He can file it in the place (1) where he himself or
any of them resides, or (2) where the defendant or any of the
defendants resides or may be found. The plaintiff or the defendant
must be residents of the place where the action has been instituted at
the time the action is commenced.
Same; Same; Same; Under the Rules of Court before the 1997
amendments, an objection to an improper venue must be made before a
responsive pleading is filed. Otherwise, it will be deemed
waived.Petitioner raised the issue of improper venue for the first
time in the Answer itself and no prior motion to dismiss based on
such ground was filed. Under the Rules of Court before the 1997
amendments, an objection to an improper venue must be made before
a responsive pleading is filed. Otherwise, it will be deemed waived. Not
having been timely raised, petitioners objection on venue is therefore
deemed waived.
Same; Same; Motion for Postponement; A motion for continuance or
postponement is not a matter of right, but a request addressed to the
sound discretion of the court.A motion for continuance or
postponement is not a matter of right, but a request addressed to the
sound discretion of the court. Parties asking for postponement have
absolutely no right to assume that their motions would be granted.
Thus, they must be prepared on the day of the hearing. Indeed, an
order declaring a party to have waived the right to present evidence
for performing dilatory actions upholds the trial courts duty to ensure

Due Process; Where a party was afforded an opportunity to participate

in the proceedings but failed to do so, he cannot complain of deprivation
of due process.With our finding that there was no abuse of discretion
in the trial courts denial of the motion for postponement filed by
petitioners counsel, petitioners contention that he was deprived of
his day in court must likewise fail. The essence of due process is that
a party is given a reasonable opportunity to be heard and submit any
evidence one may have in support of ones defense. Where a party was
afforded an opportunity to participate in the proceedings but failed to
do so, he cannot complain of deprivation of due process. If the
opportunity is not availed of, it is deemed waived or forfeited without
violating the constitutional guarantee.
Civil Law; Persons and Family Relations; Filiation; Illegitimate Children;
Under Article 175 of the Family Code of the Philippines, illegitimate
filiation may be established in the same way and on the same evidence
as legitimate children.Under Article 175 of the Family Code of the
Philippines, illegitimate filiation may be established in the same way
and on the same evidence as legitimate children. Article 172 of the
Family Code of the Philippines states: The filiation of legitimate
children is established by any of the following: (1) The record of birth
appearing in the civil register or a final judgment; or (2) An admission
of legitimate filiation in a public document or a private handwritten
instrument and signed by the parent concerned. In the absence of the
foregoing evidence, the legitimate filiation shall be proved by: (1) The
open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
Same; Same; Paternity; Evidence; Birth Certificates; A certificate of live
birth purportedly identifying the putative father is not competent
evidence of paternity when there is no showing that the putative father
had a hand in the preparation of the certificate.We have held that a
certificate of live birth purportedly identifying the putative father is
not competent evidence of paternity when there is no showing that the
putative father had a hand in the preparation of the certificate. Thus,
if the father did not sign in the birth certificate, the placing of his
name by the mother, doctor, registrar, or other person is incompetent
evidence of paternity. Neither can such birth certificate be taken as a
recognition in a public instrument and it has no probative value to
establish filiation to the alleged father.

72

Same; Same; Same; Same; Baptismal Certificates; While baptismal

certificates may be considered public documents, they can only serve
as evidence of the administration of the sacraments on the dates so
specified. They are not necessarily competent evidence of the veracity
of entries therein with respect to the childs paternity.As to the
Baptismal Certificate (Exhibit B) of Christian Paulo Salas also
indicating petitioner as the father, we have ruled that while baptismal
certificates may be considered public documents, they can only serve
as evidence of the administration of the sacraments on the dates so
specified. They are not necessarily competent evidence of the veracity
of entries therein with respect to the childs paternity.
Same; Same; Evidence; Pictures; Pictures taken of the mother and her
child together with the alleged father are inconclusive evidence to prove
paternity.Pictures taken of the mother and her child together with
the alleged father are inconclusive evidence to prove paternity.
Exhibits E and F showing petitioner and respondent inside the
rented apartment unit thus have scant evidentiary value. The
Statement of Account (Exhibit C) from the Good Samaritan General
Hospital where respondent herself was indicated as the payee is
likewise incompetent to prove that petitioner is the father of her child
notwithstanding petitioners admission in his answer that he
shouldered the expenses in the delivery of respondents child as an
act of charity.
Same; Same; Same; Handwritten Notes; As to the handwritten notes of
petitioner and respondent showing their exchange of affectionate words
and romantic trysts, these are not sufficient to establish Christian
Paulos filiation to petitioner as they were not signed by petitioner and
contained no statement of admission by petitioner that he is the father
of said child.As to the handwritten notes (Exhibits D to D-13) of
petitioner and respondent showing their exchange of affectionate
words and romantic trysts, these, too, are not sufficient to establish
Christian Paulos filiation to petitioner as they were not signed by
petitioner and contained no statement of admission by petitioner that
he is the father of said child. Thus, even if these notes were authentic,
they do not qualify under Article 172 (2) vis--vis Article 175 of the
Family Code which admits as competent evidence of illegitimate
filiation an admission of filiation in a private handwritten instrument
signed by the parent concerned.
Same; Same; Same; Filiation; Illegitimate Children; An illegitimate child
is now also allowed to establish his claimed filiation by any other
means allowed by the Rules of Court and special laws, like his
baptismal certificate, a judicial admission, a family Bible in which his

name has been entered, common reputation respecting his pedigree,

admission by silence, the testimonies of witnesses, and other kinds of
proof admissible under Rule 130 of the Rules of Court.An illegitimate
child is now also allowed to establish his claimed filiation by any
other means allowed by the Rules of Court and special laws, like his
baptismal certificate, a judicial admission, a family Bible in which his
name has been entered, common reputation respecting his pedigree,
admission by silence, the testimonies of witnesses, and other kinds of
proof admissible under Rule 130 of the Rules of Court. Reviewing the
records, we find the totality of respondents evidence insufficient to
establish that petitioner is the father of Christian Paulo. The
testimonies of respondent and Murillo as to the circumstances of the
birth of Christian Paulo, petitioners financial support while
respondent lived in Murillos apartment and his regular visits to her at
the said apartment, though replete with details, do not approximate
the overwhelming evidence, documentary and testimonial presented
in Ilano.
Same; Same; Same; Paternity; The Supreme Court has ruled that a high
standard of proof is required to establish paternity and filiation.Time
and again, this Court has ruled that a high standard of proof is
required to establish paternity and filiation. An order for recognition
and support may create an unwholesome situation or may be an
irritant to the family or the lives of the parties so that it must be
issued only if paternity or filiation is established by clear and
convincing evidence.564
Same; Same; Support; Illegitimate Children; The death of the putative
father is not a bar to the action commenced during his lifetime by one
claiming to be his illegitimate child.The action for support having
been filed in the trial court when petitioner was still alive, it is not
barred under Article 175 (2) of the Family Code. We have also held
that the death of the putative father is not a bar to the action
commenced during his lifetime by one claiming to be his illegitimate
child. The rule on substitution of parties provided in Section 16, Rule
3 of the 1997 Rules of Civil Procedure, thus applies. SEC. 16. Death of
party; duty of counsel.Whenever a party to a pending action dies,
and the claim is not thereby extinguished, it shall be the duty of his
counsel to inform the court within thirty (30) days after such death of
the fact thereof, and to give the name and address of his legal
representative or representatives. Failure of counsel to comply with
his duty shall be a ground for disciplinary action. The heirs of the
deceased may be allowed to be substituted for the deceased, without
requiring the appointment of an executor or administrator and the
court may appoint a guardian ad litem for the minor heirs. The court

73

shall forthwith order said legal representative or representatives to

appear and be substituted within a period of thirty (30) days from
notice. If no legal representative is named by the counsel for the
deceased party, or if the one so named shall fail to appear within the
specified period, the court may order the opposing party, within a
specified time to procure the appointment of an executor or
administrator for the estate of the deceased and the latter shall
immediately appear for and on behalf of the deceased. The court
charges in procuring such appointment, if defrayed by the opposing
party, may be recovered as costs.
PETITION for review on certiorari of the decision and resolution of the
Court of Appeals.
The facts are stated in the opinion of the Court.
Jennifer Patacsil-Arceo for petitioner.
Oscar C. Sahagun for respondent.
VILLARAMA, JR.,

J.:

Before the Court is a petition for review on certiorari which seeks to

reverse and set aside the Decision1 dated July 18, 2006 and
Resolution2 dated October 19, 2007 of the Court of Appeals (CA) in
CA-G.R. CV No. 64379.
The factual antecedents:
On May 26, 1995, Annabelle Matusalem (respondent) filed a
complaint3 for Support/Damages against Narciso Salas (petitioner) in
the Regional Trial Court (RTC) of Cabanatuan City (Civil Case No.
2124-AF).
Respondent claimed that petitioner is the father of her son Christian
Paulo Salas who was born on December 28, 1994. Petitioner, already
56 years old at the time, enticed her as she was then only 24 years
old, making her believe that he is a widower. Petitioner rented an
apartment where respondent stayed and shouldered all expenses in
the delivery of their child, including the cost of caesarian operation
and hospital confinement. However, when respondent refused the
offer of petitioners family to take the child from her, petitioner
abandoned respondent and her child and left them to the mercy of
relatives and friends. Respondent further alleged that she attempted

suicide due to depression but still petitioner refused to support her

and their child.
Respondent thus prayed for support pendente lite and monthly
support in the amount of P20,000.00, as well as actual, moral and
exemplary damages, and attorneys fees.
Petitioner filed his answer4 with special and affirmative defenses and
counterclaims. He described respondent as a woman of loose morals,
having borne her first child also out of wedlock when she went to
work in Italy. Jobless upon her return to the country, respondent
spent time riding on petitioners jeepney which was then being utilized
by a female real estate agent named Felicisima de Guzman.
Respondent had seduced a senior police officer in San Isidro and her
charge of sexual abuse against said police officer was later withdrawn
in exchange for the quashing of drug charges against respondents
brother-in-law who was then detained at the municipal jail. It was at
that time respondent introduced herself to petitioner whom she
pleaded for charity as she was pregnant with another child. Petitioner
denied paternity of the child Christian Paulo; he was motivated by no
other reason except genuine altruism when he agreed to shoulder the
expenses for the delivery of said child, unaware of respondents
chicanery and deceit designed to scandalize him in exchange for
financial favor.
At the trial, respondent and her witness Grace Murillo testified.
Petitioner was declared to have waived his right to present evidence
and the case was considered submitted for decision based on
respondents evidence.
Respondent testified that she first met petitioner at the house of his
kumadre Felicisima de Guzman at Bgy. Malapit, San Isidro, Nueva
Ecija. During their subsequent meeting, petitioner told her he is
already a widower and he has no more companion in life because his
children are all grown-up. She also learned that petitioner owns a rice
mill, a construction business and a housing subdivision (petitioner
offered her a job at their family-owned Ma. Cristina Village). Petitioner
at the time already knows that she is a single mother as she had a
child by her former boyfriend in Italy. He then brought her to a motel,
promising that he will take care of her and marry her. She believed
him and yielded to his advances, with the thought that she and her
child will have a better life. Thereafter, they saw each other weekly
and petitioner gave her money for her child. When she became
pregnant with petitioners child, it was only then she learned that he

74

is in fact not a widower. She wanted to abort the baby but petitioner
opposed it because he wanted to have another child.5
On the fourth month of her pregnancy, petitioner rented an
apartment where she stayed with a housemaid; he also provided for
all their expenses. She gave birth to their child on December 28, 1994
at the Good Samaritan Hospital in Cabanatuan City. Before delivery,
petitioner even walked her at the hospital room and massaged her
stomach, saying he had not done this to his wife. She filled out the
form for the childs birth certificate and wrote all the information
supplied by petitioner himself. It was also petitioner who paid the
hospital bills and drove her baby home. He was excited and happy to
have a son at his advanced age who is his look-alike, and this was
witnessed by other boarders, visitors and Grace Murillo, the owner of
the apartment unit petitioner rented. However, on the 18th day after
the babys birth, petitioner went to Baguio City for a medical checkup. He confessed to her daughter and eventually his wife was also
informed about his having sired an illegitimate child. His family then
decided to adopt the baby and just give respondent money so she can
go abroad. When she refused this offer, petitioner stopped seeing her
and sending money to her. She and her baby survived through the
help of relatives and friends. Depressed, she tried to commit suicide
by drug overdose and was brought to the hospital by Murillo who paid
the bill. Murillo sought the help of the Cabanatuan City Police Station
which set their meeting with petitioner. However, it was only
petitioners wife who showed up and she was very mad, uttering
unsavory words against respondent.6
Murillo corroborated respondents testimony as to the payment by
petitioner of apartment rental, his weekly visits to respondent and
financial support to her, his presence during and after delivery of
respondents baby, respondents attempted suicide through sleeping
pills overdose and hospitalization for which she paid the bill, her
complaint before the police authorities and meeting with petitioners
wife at the headquarters.7
On April 5, 1999, the trial court rendered its decision8 in favor of
respondent, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby
rendered in favor of the plaintiff and against the defendant as
follows:

1. Ordering the defendant to give as monthly support of TWO

THOUSAND (P2,000.00) PESOS for the child Christian Paulo
through the mother;
2. Directing the defendant to pay the plaintiff the sum of
P20,000.00 by way of litigation expenses; and
3.

To pay the costs of suit.

SO ORDERED.9
Petitioner appealed to the CA arguing that: (1) the trial court decided
the case without affording him the right to introduce evidence on his
defense; and (2) the trial court erred in finding that petitioner is the
putative father of Christian Paulo and ordering him to give monthly
support.
By Decision dated July 18, 2006, the CA dismissed petitioners
appeal. The appellate court found no reason to disturb the trial
courts exercise of discretion in denying petitioners motion for
postponement on April 17, 1998, the scheduled hearing for the initial
presentation of defendants evidence, and the motion for
reconsideration of the said order denying the motion for
postponement and submitting the case for decision.
On the paternity issue, the CA affirmed the trial courts ruling that
respondent satisfactorily established the illegitimate filiation of her
son Christian Paulo, and consequently no error was committed by the
trial court in granting respondents prayer for support. The appellate
court thus held:
Christian Paulo, in instant case, does not enjoy the benefit of a
record of birth in the civil registry which bears acknowledgment
signed by Narciso Salas. He cannot claim open and continuous
possession of the status of an illegitimate child.
It had been established by plaintiffs evidence, however, that
during her pregnancy, Annabelle was provided by Narciso Salas
with an apartment at a rental of P1,500.00 which he paid for
(TSN, October 6, 1995, p. 18). Narciso provided her with a
household help with a salary of P1,500.00 a month (TSN,
October 6, 1995, ibid). He also provided her a monthly food
allowance of P1,500.00 (Ibid, p. 18). Narciso was with Annabelle
at the hospital while the latter was in labor, walking her

75

around and massaging her belly (Ibid, p. 11). Narciso brought

home Christian Paulo to the rented apartment after Annabelles
discharge from the hospital. People living in the same
apartment units were witnesses to Narcisos delight to father a
son at his age which was his look alike. It was only after the
18th day when Annabelle refused to give him Christian Paulo
that Narciso withdrew his support to him and his mother.570

It shall be demandable from the time the person who has the
right to recover the same needs it for maintenance x x. (Art.
203, Family Code of the Philippines).10
Petitioner filed a motion for reconsideration but it was denied by the
CA.
Hence, this petition submitting the following arguments:

570 SUPREME COURT REPORTS ANNOTATED

Salas vs. Matusalem
Said testimony of Annabelle aside from having been
corroborated by Grace Murillo, the owner of the apartment
which Narciso rented, was never rebutted on record. Narciso did
not present any evidence, verbal or documentary, to repudiate
plaintiffs evidence.
In the cases of Lim vs. CA (270 SCRA 1) and Rodriguez vs. CA
(245 SCRA 150), the Supreme Court made it clear that Article
172 of the Family Code is an adaptation of Article 283 of the
Civil Code. Said legal provision provides that the father is
obliged to recognize the child as his natural child x x 3) when
the child has in his favor any evidence or proof that the
defendant is his father.
In fact, in Ilano vs. CA (230 SCRA 242, 258-259), it was held
that
The last paragraph of Article 283 contains a blanket
provision that practically covers all the other cases in the
preceding paragraphs. Any other evidence or proof that
the defendant is the father is broad enough to render
unnecessary the other paragraphs of this article. When
the evidence submitted in the action for compulsory
recognition is not sufficient to meet [the] requirements of
the first three paragraphs, it may still be enough under
the last paragraph. This paragraph permits hearsay and
reputation evidence, as provided in the Rules of Court,
with respect to illegitimate filiation.
As a necessary consequence of the finding that Christian Paulo
is the son of defendant Narciso Salas, he is entitled to support
from the latter (Ilano vs. CA, supra).

1.
THE VENUE OF THE CASE WAS IMPROPERLY LAID BEFORE
THE
REGIONAL
TRIAL
COURT
OF
CABANATUAN
CITY
CONSIDERING THAT BOTH PETITIONER AND RESPONDENT ARE
ACTUAL RESIDENTS OF BRGY. MALAPIT, SAN ISIDRO, NUEVA
ECIJA.
2.
THE HONORABLE COURT OF APPEALS ERRED IN
PRONOUNCING THAT PETITIONER WAS AFFORDED THE FULL
MEASURE OF HIS RIGHT TO DUE PROCESS OF LAW AND IN
UPHOLDING THAT THE TRIAL COURT DID NOT GRAVELY ABUSE
ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT DECIDED THE INSTANT CASE WITHOUT
AFFORDING PETITIONER THE RIGHT TO INTRODUCE EVIDENCE IN
HIS DEFENSE.
3. THE HONORABLE COURT OF APPEALS ERRED IN HOLDING
THAT THE FILIATION OF CHRISTIAN PAULO WAS DULY
ESTABLISHED PURSUANT TO ARTICLE 175 IN RELATION TO
ARTICLE
172
OF
THE
FAMILY
CODE
AND
EXISTING
JURISPRUDENCE AND THEREFORE ENTITLED TO SUPPORT FROM
THE PETITIONER.11
We grant the petition.
It is a legal truism that the rules on the venue of personal actions are
fixed for the convenience of the plaintiffs and their witnesses. Equally
settled, however, is the principle that choosing the venue of an action
is not left to a plaintiffs caprice; the matter is regulated by the Rules
of Court.12
In personal actions such as the instant case, the Rules give the
plaintiff the option of choosing where to file his complaint.
He can file it in the place (1) where he himself or any of them resides,
or (2) where the defendant or any of the defendants resides or may be

76

found.13 The plaintiff or the defendant must be residents of the place

where the action has been instituted at the time the action is
commenced.14
However, petitioner raised the issue of improper venue for the first
time in the Answer itself and no prior motion to dismiss based on
such ground was filed. Under the Rules of Court before the 1997
amendments, an objection to an improper venue must be made before
a responsive pleading is filed. Otherwise, it will be deemed waived.15
Not having been timely raised, petitioners objection on venue is
therefore deemed waived.
As to the denial of the motion for postponement filed by his counsel
for the resetting of the initial presentation of defense evidence on April
17, 1998, we find that it was not the first time petitioners motion for
postponement was denied by the trial court.
Records disclosed that after the termination of the testimony of
respondents last witness on November 29, 1996, the trial court as
prayed for by the parties, set the continuation of hearing for the
reception of evidence for the defendant (petitioner) on January 27,
February 3, and February 10, 1997. In the Order dated December 17,
1996, petitioner was advised to be ready with his evidence at those
hearing dates earlier scheduled. At the hearing on January 27, 1997,
petitioners former counsel, Atty. Rolando S. Bala, requested for the
cancellation of the February 3 and 10, 1997 hearings in order to give
him time to prepare for his defense, which request was granted by the
trial court which thus reset the hearing dates to March 3, 14 and 17,
1997. On March 3, 1997, upon oral manifestation by Atty. Bala and
without objection from respondents counsel, Atty. Feliciano Wycoco,
the trial court again reset the hearing to March 14 and 17, 1997. With
the nonappearance of both petitioner and Atty. Bala on March 14,
1997, the trial court upon oral manifestation by Atty. Wycoco declared
their absence as a waiver of their right to present evidence and
accordingly deemed the case submitted for decision.16
On July 4, 1997, Atty. Bala withdrew as counsel for petitioner and
Atty. Rafael E. Villarosa filed his appearance as his new counsel on
July 21, 1997. On the same date he filed entry of appearance, Atty.
Villarosa filed a motion for reconsideration of the March 14, 1997
Order pleading for liberality and magnanimity of the trial court,
without offering any explanation for Atty. Balas failure to appear for
the initial presentation of their evidence. The trial court thereupon
reconsidered its March 14, 1997 Order, finding it better to give
petitioner a chance to present his evidence. On August 26, 1997, Atty.

Villarosa received a notice of hearing for the presentation of their

evidence scheduled on September 22, 1997. On August 29, 1997, the
trial court received his motion requesting that the said hearing be
reset to October 10, 1997 for the reason that he had requested the
postponement of a hearing in another case which was incidentally
scheduled on September 22, 23 and 24, 1997. As prayed for, the trial
court reset the hearing to October 10, 1997. On said date, however,
the hearing was again moved to December 15, 1997. On February 16,
1998, the trial court itself reset the hearing to April 17, 1998 since it
was unclear whether Atty. Wycoco received a copy of the motion.17
On April 17, 1998, petitioner and his counsel failed to appear but the
trial court received on April 16, 1998 an urgent motion to cancel
hearing filed by Atty. Villarosa. The reason given by the latter was the
scheduled hearing on the issuance of writ of preliminary injunction in
another case under the April 8, 1998 Order issued by the RTC of
Gapan, Nueva Ecija, Branch 36 in Civil Case No. 1946. But as clearly
stated in the said order, it was the plaintiffs therein who requested
the postponement of the hearing and it behoved Atty. Villarosa to
inform the RTC of Gapan that he had a previous commitment
considering that the April 17, 1998 hearing was scheduled as early as
February 16, 1998. Acting on the motion for postponement, the trial
court denied for the second time petitioners motion for postponement.
Even at the hearing of their motion for reconsideration of the April 17,
1998 Order on September 21, 1998, Atty. Villarosa failed to appear
and instead filed another motion for postponement. The trial court
thus ordered that the case be submitted for decision stressing that
the case had long been pending and that petitioner and his counsel
have been given opportunities to present their evidence. It likewise
denied a second motion for reconsideration filed by Atty. Villarosa,
who arrived late during the hearing thereof on December 4, 1998.18
A motion for continuance or postponement is not a matter of right,
but a request addressed to the sound discretion of the court. Parties
asking for postponement have absolutely no right to assume that
their motions would be granted. Thus, they must be prepared on the
day of the hearing.19 Indeed, an order declaring a party to have
waived the right to present evidence for performing dilatory actions
upholds the trial courts duty to ensure that trial proceeds despite the
deliberate delay and refusal to proceed on the part of one party.20
Atty. Villarosas plea for liberality was correctly rejected by the trial
court in view of his own negligence in failing to ensure there will be no
conflict in his trial schedules. As we held in Tiomico v. Court of
Appeals:21

77

Motions for postponement are generally frowned upon by

Courts if there is evidence of bad faith, malice or inexcusable
negligence on the part of the movant. The inadvertence of the
defense counsel in failing to take note of the trial dates and in
belatedly informing the trial court of any conflict in his
schedules of trial or court appearances, constitutes inexcusable
negligence. It should be borne in mind that a client is bound by
his counsels conduct, negligence and mistakes in handling the
case.22
With our finding that there was no abuse of discretion in the trial
courts denial of the motion for postponement filed by petitioners
counsel, petitioners contention that he was deprived of his day in
court must likewise fail. The essence of due process is that a party is
given a reasonable opportunity to be heard and submit any evidence
one may have in support of ones defense. Where a party was afforded
an opportunity to participate in the proceedings but failed to do so, he
cannot complain of deprivation of due process. If the opportunity is
not availed of, it is deemed waived or forfeited without violating the
constitutional guarantee.23
We now proceed to the main issue of whether the trial and appellate
courts erred in ruling that respondents evidence sufficiently proved
that her son Christian Paulo is the illegitimate child of petitioner.
Under Article 175 of the Family Code of the Philippines, illegitimate
filiation may be established in the same way and on the same
evidence as legitimate children.

(1) The open and continuous possession of the status of a

legitimate child; or
(2) Any other means allowed by the Rules of Court and special
laws. (Underscoring supplied.)
Respondent presented the Certificate of Live Birth24 (Exhibit A-1) of
Christian Paulo Salas in which the name of petitioner appears as his
father but which is not signed by him. Admittedly, it was only
respondent who filled up the entries and signed the said document
though she claims it was petitioner who supplied the information she
wrote therein.
We have held that a certificate of live birth purportedly identifying the
putative father is not competent evidence of paternity when there is
no showing that the putative father had a hand in the preparation of
the certificate.25 Thus, if the father did not sign in the birth
certificate, the placing of his name by the mother, doctor, registrar, or
other person is incompetent evidence of paternity.26 Neither can such
birth certificate be taken as a recognition in a public instrument27
and it has no probative value to establish filiation to the alleged
father.28
As to the Baptismal Certificate29 (Exhibit B) of Christian Paulo
Salas also indicating petitioner as the father, we have ruled that while
baptismal certificates may be considered public documents, they can
only serve as evidence of the administration of the sacraments on the
dates so specified. They are not necessarily competent evidence of the
veracity of entries therein with respect to the childs paternity.30

Article 172 of the Family Code of the Philippines states:

The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final
judgment; or
(2) An admission of legitimate filiation in a public document
or a private handwritten instrument and signed by the parent
concerned.
In the absence of the foregoing evidence, the legitimate filiation
shall be proved by:

The rest of respondents documentary evidence consists of

handwritten notes and letters, hospital bill and photographs taken of
petitioner and respondent inside their rented apartment unit.
Pictures taken of the mother and her child together with the alleged
father are inconclusive evidence to prove paternity.31 Exhibits E
and F32 showing petitioner and respondent inside the rented
apartment unit thus have scant evidentiary value. The Statement of
Account33 (Exhibit C) from the Good Samaritan General Hospital
where respondent herself was indicated as the payee is likewise
incompetent to prove that petitioner is the father of her child
notwithstanding petitioners admission in his answer that he
shouldered the expenses in the delivery of respondents child as an
act of charity.

78

As to the handwritten notes34 (Exhibits D to D-13) of petitioner

and respondent showing their exchange of affectionate words and
romantic trysts, these, too, are not sufficient to establish Christian
Paulos filiation to petitioner as they were not signed by petitioner and
contained no statement of admission by petitioner that he is the
father of said child. Thus, even if these notes were authentic, they do
not qualify under Article 172 (2) vis--vis Article 175 of the Family
Code which admits as competent evidence of illegitimate filiation an
admission of filiation in a private handwritten instrument signed by
the parent concerned.35
Petitioners reliance on our ruling in Lim v. Court of Appeals36 is
misplaced. In the said case, the handwritten letters of petitioner
contained a clear admission that he is the father of private
respondents daughter and were signed by him. The Court therein
considered the totality of evidence which established beyond
reasonable doubt that petitioner was indeed the father of private
respondents daughter. On the other hand, in Ilano v. Court of
Appeals,37 the Court sustained the appellate courts finding that
private respondents evidence to establish her filiation with and
paternity of petitioner was overwhelming, particularly the latters
public acknowledgment of his amorous relationship with private
respondents mother, and private respondent as his own child
through acts and words, her testimonial evidence to that effect was
fully supported by documentary evidence. The Court thus ruled that
respondent had adduced sufficient proof of continuous possession of
status of a spurious child.
Here, while the CA held that Christian Paulo Salas could not claim
open and continuous possession of status of an illegitimate child, it
nevertheless considered the testimonial evidence sufficient proof to
establish his filiation to petitioner.
An illegitimate child is now also allowed to establish his claimed
filiation by any other means allowed by the Rules of Court and
special laws, like his baptismal certificate, a judicial admission, a
family Bible in which his name has been entered, common reputation
respecting his pedigree, admission by silence, the testimonies of
witnesses, and other kinds of proof admissible under Rule 130 of the
Rules of Court.38 Reviewing the records, we find the totality of
respondents evidence insufficient to establish that petitioner is the
father of Christian Paulo.
The testimonies of respondent and Murillo as to the circumstances of
the birth of Christian Paulo, petitioners financial support while

respondent lived in Murillos apartment and his regular visits to her at

the said apartment, though replete with details, do not approximate
the overwhelming evidence, documentary and testimonial presented
in Ilano. In that case, we sustained the appellate courts ruling
anchored on the following factual findings by the appellate court
which was quoted at length in the ponencia:
It was Artemio who made arrangement for the delivery of
Merceditas (sic) at the Manila Sanitarium and Hospital. Prior to
the delivery, Leoncia underwent prenatal examination
accompanied by Artemio (TSN, p. 33, 5/17/74). After delivery,
they went home to their residence at EDSA in a car owned and
driven by Artemio himself (id., at p. 36).
Merceditas (sic) bore the surname of Ilano since birth without
any objection on the part of Artemio, the fact that since
Merceditas (sic) had her discernment she had always known
and called Artemio as her Daddy (TSN, pp. 28-29, 10/18/74);
the fact that each time Artemio was at home, he would play
with Merceditas (sic), take her for a ride or restaurants to eat,
and sometimes sleeping with Merceditas (sic) (id., at p. 34) and
does all what a father should do for his child bringing home
goodies, candies, toys and whatever he can bring her which a
child enjoys which Artemio gives to Merceditas (sic) (TSN, pp.
38-39, 5/17/74) are positive evidence that Merceditas (sic) is
the child of Artemio and recognized by Artemio as such. Special
attention is called to Exh. E-7 where Artemio was telling
Leoncia the need for a frog test to know the status of Leoncia.
Plaintiff pointed out that the support by Artemio for Leoncia
and Merceditas (sic) was sometimes in the form of cash
personally delivered to her by Artemio, thru Melencio, thru
Elynia (Exhs. E-2 and E-3, and D-6), or thru Merceditas
(sic) herself (TSN, p. 40, 5/17/74) and sometimes in the form of
a check as the Manila Banking Corporation Check No. 81532
(Exh. G) and the signature appearing therein which was
identified by Leoncia as that of Artemio because Artemio often
gives her checks and Artemio would write the check at home
and saw Artemio sign the check (TSN, p. 49, 7/18/73). Both
Artemio and Nilda admitted that the check and signature were
those of Artemio (TSN, p. 53, 10/17/77; TSN, p. 19, 10/9/78).
During the time that Artemio and Leoncia were living as
husband and wife, Artemio has shown concern as the father of
Merceditas (sic). When Merceditas (sic) was in Grade 1 at the St.

79

Joseph Parochial School, Artemio signed the Report Card of

Merceditas (sic) (Exh. H) for the fourth and fifth grading
period(s) (Exh. H-1 and H-2) as the parent of Merceditas
(sic). Those signatures of Artemio [were] both identified by
Leoncia and Merceditas (sic) because Artemio signed Exh. H-1
and H-2 at their residence in the presence of Leoncia,
Merceditas (sic) and of Elynia (TSN, p. 57, 7/18/73; TSN, p. 28,
10/1/73). x x x.
xxx

xxx

xxx

parties provided in Section 16, Rule 3 of the 1997 Rules of Civil

Procedure, thus applies.
SEC. 16. Death of party; duty of counsel.Whenever a party to
a pending action dies, and the claim is not thereby
extinguished, it shall be the duty of his counsel to inform the
court within thirty (30) days after such death of the fact thereof,
and to give the name and address of his legal representative or
representatives. Failure of counsel to comply with his duty shall
be a ground for disciplinary action.

When Artemio run as a candidate in the Provincial Board of

Cavite[,] Artemio gave Leoncia his picture with the following
dedication: To Nene, with best regards, Temiong. (Exh. I).
(pp. 19-20, Appellants Brief)

The heirs of the deceased may be allowed to be substituted for

the deceased, without requiring the appointment of an executor
or administrator and the court may appoint a guardian ad litem
for the minor heirs.

The mere denial by defendant of his signature is not sufficient

to offset the totality of the evidence indubitably showing that
the signature thereon belongs to him. The entry in the
Certificate of Live Birth that Leoncia and Artemio was falsely
stated therein as married does not mean that Leoncia is not
appellees daughter. This particular entry was caused to be
made by Artemio himself in order to avoid embarrassment.39

The court shall forthwith order said legal representative or

representatives to appear and be substituted within a period of
thirty (30) days from notice.

In sum, we hold that the testimonies of respondent and Murillo, by

themselves are not competent proof of paternity and the totality of
respondents evidence failed to establish Christian Paulos filiation to
petitioner.
Time and again, this Court has ruled that a high standard of proof is
required to establish paternity and filiation. An order for recognition
and support may create an unwholesome situation or may be an
irritant to the family or the lives of the parties so that it must be
issued only if paternity or filiation is established by clear and
convincing evidence.40

If no legal representative is named by the counsel for the

deceased party, or if the one so named shall fail to appear
within the specified period, the court may order the opposing
party, within a specified time to procure the appointment of an
executor or administrator for the estate of the deceased and the
latter shall immediately appear for and on behalf of the
deceased. The court charges in procuring such appointment, if
defrayed by the opposing party, may be recovered as costs.
WHEREFORE, the petition for review on certiorari is GRANTED. The
Decision dated July 18, 2006 and Resolution dated October 19, 2007
of the Court of Appeals in CA-G.R. CV No. 64379 are hereby
REVERSED and SET ASIDE. Civil Case No. 2124-AF of the Regional
Trial Court of Cabanatuan City, Branch 26 is DISMISSED.
No pronouncement as to costs.

Finally, we note the Manifestation and Motion41 filed by petitioners

counsel informing this Court that petitioner had died on May 6, 2010.
The action for support having been filed in the trial court when
petitioner was still alive, it is not barred under Article 175 (2)42 of the
Family Code. We have also held that the death of the putative father
is not a bar to the action commenced during his lifetime by one
claiming to be his illegitimate child.43 The rule on substitution of

SO ORDERED.
Sereno (CJ., Chairperson), Leonardo-De Castro, Bersamin and Reyes,
JJ., concur.
Petition granted, judgment and resolution reversed and set aside.

80

Notes.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; Illegitimate children are entitled to support
and successional rights but their filiation must be duly proved.
(Dolina vs. Vallecera, 638 SCRA 707 [2010])
Time and again, this Court has ruled that a high standard of proof is
required to establish paternity and filiation. An order for support may
create an unwholesome situation or may be an irritant to the family
or the lives of the parties so that it must be issued only if paternity or
filiation is established by clear and convincing evidence. (Perla vs.
Baring, 685 SCRA 101 [2012])

81

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

MAURICIO SAYSON, ROSARIO SAYSON-MALONDA, BASILISA
SAYSON-LIRIO, REMEDIOS SAYSON-REYES and JUANA C.
BAUTISTA, petitioners, vs. THE HONORABLE COURT OF
APPEALS, DELIA SAYSON, assisted by her husband, CIRILO
CEDO, JR., EDMUNDO SAYSON AND DORIBEL SAYSON,
respondents.
Civil Law; Adoption; Petitioners' challenge to the validity of the adoption
cannot be made collaterally but in a direct proceedings frontally
addressing the issue.A no less important argument against the
petitioners is that their challenge to the validity of the adoption
cannot be made collaterally, as in their action for partition, but in a
direct proceeding frontally addressing the issue. The settled rule is
that a finding that the requisite jurisdictional facts exists, whether
erroneous or not, cannot be questioned in a collateral proceeding, for a
presumption arises in such cases where the validity of the judgment
is thus attacked that the necessary jurisdictional facts were proven
[Freeman on Judgments, Vol. I, Sec. 350, pp. 719-720]. (Emphasis
supplied.) In the case of Santos v. Aranzanso, this Court declared:
Anent this point, the rulings are summed up in 2 American
Jurisprudence, 2nd Series, Adoption, Sec. 75, p. 922, thus: An
adoption order implies the finding of the necessary facts and the
burden of proof is on the party attacking it; it cannot be considered
void merely because the fact needed to show statutory compliance is
obscure. While a judicial determination of some particular fact, such
as the abandonment of his next of kin to the adoption, may be
essential to the exercise of jurisdiction to enter the order of adoption,
this does not make it essential to the jurisdictional validity of the
decree that the fact be determined upon proper evidence, or
necessarily in accordance with the truth; a mere error cannot affect
the jurisdiction, and the determination must stand until reversed on
appeal, and hence cannot be collaterally attacked. If this were not the
rule, the status of adopted children would always be uncertain, since
the evidence might not be the same at all investigations, and might be
regarded with different effect by different tribunals, and the adoption
might be held by one court to have been valid, while another court
would hold it to have been of no avail. (Emphasis supplied.)
Same; Family Code; Paternity and filiation; Proof of filiation; Doribel's
birth certificate is a formidable piece of evidence. It is one of the
prescribed means of recognition under Art. 265 of the Civil Code and

Art. 172 of the Family Code.On the question of Doribel's legitimacy,

we hold that the findings of the trial courts as affirmed by the
respondent court must be sustained. Doribel's birth certificate is a
formidable piece of evidence. It is one of the prescribed means of
recognition under Article 265 of the Civil Code and Article 172 of the
Family Code. It is true, as the petitioners stress, that the birth
certificate offers only prima facie evidence of filiation and may be
refuted by contrary evidence. However, such evidence is lacking in the
case at bar.
Same; Same; Same; Same; Remedial Law; Evidence; The evidentiary
nature of public documents must be sustained in the absence of strong,
complete and conclusive proof of its falsity or nullity.Mauricio's
testimony that he was present when Doribel was born to Edita Abila
was understandably suspect, coming as it did from an interested
party. The affidavit of Abila denying her earlier statement in the
petition for the guardianship of Doribel is of course hearsay, let alone
the fact that it was never offered in evidence in the lower courts. Even
without it, however, the birth certificate must be upheld in line with
Legaspi v. Court of Appeals, where we ruled that "the evidentiary
nature of public documents must be sustained in the absence of
strong, complete and conclusive proof of its falsity or nullity."
Same; Same; Same; Same; Same; Special Civil Actions; Partition;
Doribel's legitimacy cannot be questioned in a complaint for partition
and accounting but in a direct action seasonably filed by the proper
party.Another reason why the petitioners' challenge must fail is the
impropriety of the present proceedings for that purpose. Doribel's
legitimacy cannot be questioned in a complaint for partition and
accounting but in a direct action seasonably filed by the proper party.
The presumption of legitimacy in the Civil Code x x x does not have
this purely evidential character. It serves a more fundamental
purpose. It actually fixes a civil status for the child born in wedlock,
and that civil status cannot be attacked collaterally. The legitimacy of
the child can be impugned only in a direct action brought for that by
the proper parties, and within the period limited by law. The
legitimacy of the child cannot be contested by way of defense or as a
collateral issue in another action for a different purpose. x x x.
(Emphasis supplied.)
Same; Adoption; Succession; Representation; While it is true that the
adopted child shall be deemed to be a legitimate child and have the
same rights as the latter, these rights do not include the right of
representation.There is no question that as the legitimate daughter
of Teodoro and thus the granddaughter of Eleno and Rafaela, Doribel

82

has a right to represent her deceased father in the distribution of the

intestate estate of her grandparents. Under Article 981, quoted above,
she is entitled to the share her father would have directly inherited
had he survived, which shall be equal to the shares of her
grandparents' other children. But a different conclusion must be
reached in the case of Delia and Edmundo, to whom the grandparents
were total strangers. While it is true that the adopted child shall be
deemed to be a legitimate child and have the same rights as the latter,
these rights do not include the right of representation. The
relationship created by the adoption is between only the adopting
parents and the adopted child and does not extend to the blood
relatives of either party.

On July 11, 1983, Delia, Edmundo and Doribel filed their own
complaint, this time for the accounting and partition of the intestate
estate of Eleno and Rafaela Sayson, against the couple's four
surviving children. This was docketed as Civil Case No. 1042 in the
Regional Trial Court of Albay, Branch 12. The complainants asserted
the defense they raised in Civil Case No. 1030, to wit, that Delia and
Edmundo were the adopted children and Doribel was the legitimate
daughter of Teodoro and Isabel. As such, they were entitled to inherit
Teodoro's share in his parents' estate by right of representation.

PETITION for review by certiorari from the decision of the Court of

Appeals.

Judge Rafael P. Santelices declared in his decision dated May 26,

1986,1 that Delia and Edmundo were the legally adopted children of
Teodoro and Isabel Sayson by virtue of the decree of adoption dated
March 9, 1967.2 Doribel was their legitimate daughter as evidenced by
her birth certificate dated February 27, 1967.3 Consequently, the
three children were entitled to inherit from Eleno and Rafaela by right
of representation. In his decision dated September 30, 1986, 4 Judge
Jose S. Saez dismissed Civil Case No. 1030, holding that the
defendants, being the legitimate heirs of Teodoro and Isabel as
established by the aforementioned evidence, excluded the plaintiffs
from sharing in their estate.

The facts are stated in the opinion of the Court.

CRUZ, J.:
At issue in this case is the status of the private respondents and their
capacity to inherit from their alleged parents and grandparents. The
petitioners deny them that right, asserting it for themselves to the
exclusion of all others.
The relevant genealogical facts are as follows.
Eleno and Rafaela Sayson begot five children, namely, Mauricio,
Rosario, Basilisa, Remedios and Teodoro. Eleno died on November 10,
1952, and Rafaela on May 15, 1976. Teodoro, who had married Isabel
Bautista, died on March 23, 1972. His wife died nine years later, on
March 26,1981. Their properties were left in the possession of Delia,
Edmundo, and Doribel, all surnamed Sayson, who claim to be their
children.
On April 25, 1983, Mauricio, Rosario, Basilisa, and Remedios,
together with Juana C. Bautista, Isabel's mother, filed a complaint for
partition and accounting of the intestate estate of Teodoro and Isabel
Sayson. It was docketed as Civil Case No. 1030 in Branch 13 of the
Regional Trial Court of Albay. The action was resisted by Delia,
Edmundo and Doribel Sayson, who alleged successional rights to the
disputed estate as the decedent's lawful descendants.

Both cases were decided in favor of the herein private respondents on

the basis of practically the same evidence.

Both cases were appealed to the Court of Appeals, where they were
consolidated. In its own decision dated February 28, 1989,5 the
respondent court disposed as follows:
WHEREFORE, in Civil Case No. 1030 (CA-G.R. No. 11541), the
appealed decision is hereby AFFIRMED. In Civil Case No. 1042
(CAG.R. No. 12364), the appealed decision is MODIFIED in that Delia
and Edmundo Sayson are disqualified from inheriting from the estate
of the deceased spouses Eleno and Rafaela Sayson, but is affirmed in
all other respects.
SO ORDERED.
That judgment is now before us in this petition for review by certiorari.
Reversal of the respondent court is sought on the ground that it
disregarded the evidence of the petitioners and misapplied the
pertinent law and jurisprudence when it declared the private
respondents as the exclusive heirs of Teodoro and Isabel Sayson.

83

The contention of the petitioners is that Delia and Edmundo were not
legally adopted because Doribel had already been born on February
27, 1967, when the decree of adoption was issued on March 9, 1967.
The birth of Doribel disqualified her parents from adopting. The
pertinent provision is Article 335 of the Civil Code, naming among
those who cannot adopt "(1) Those who have legitimate, legitimated,
acknowledged natural children, or natural children by legal fiction."

adoption on the finding inter alia that the adopting parents were not
disqualified.

Curiously enough, the petitioners also argue that Doribel herself is

not the legitimate daughter of Teodoro and Isabel but was in fact born
to one Edita Abila, who manifested in a petition for guardianship of
the child that she was her natural mother.6

The settled rule is that a finding that the requisite jurisdictional facts
exists, whether erroneous or not, cannot be questioned in a collateral
proceeding, for a presumption arises in such cases where the validity
of the judgment is thus attacked that the necessary jurisdictional
facts were proven [Freeman on Judgments, Vol. I, Sec. 350, pp. 719720]. (Emphasis supplied.)

The inconsistency of this position is immediately apparent. The

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

A no less important argument against the petitioners is that their

challenge to the validity of the adoption cannot be made collaterally,
as in their action for partition, but in a direct proceeding frontally
addressing the issue.

In the case of Santos v. Aranzanso,8 this Court declared:

Anent this point, the rulings are summed up in 2 American
Jurisprudence, 2nd Series, Adoption, Sec. 75, p. 922, thus:
An adoption order implies the finding of the necessary facts and the
burden of proof is on the party attacking it; it cannot be considered
void merely because the fact needed to show statutory compliance is
obscure. While a judicial determination of some particular fact, such
as the abandonment of his next of kin to the adoption, may be
essential to the exercise of jurisdiction to enter the order of adoption,
this does not make it essential to the jurisdictional validity of the
decree that the fact be determined upon proper evidence, or
necessarily in accordance with the truth; a mere error cannot affect
the jurisdiction, and the determination must stand until reversed on
appeal, and hence cannot be collaterally attacked. If this were not the
rule, the status of adopted children would always be uncertain, since
the evidence might not be the same at all investigations, and might be
regarded with different effect by different tribunals, and the adoption
might be held by one court to have been valid, while another court
would hold it to have been of no avail. (Emphasis supplied.)
On the question of Doribel's legitimacy, we hold that the findings of
the trial courts as affirmed by the respondent court must be
sustained. Doribers birth certificate is a formidable piece of evidence.
It is one of the prescribed means of recognition under Article 265 of
the Civil Code and Article 172 of the Family Code. It is true, as the
petitioners stress, that the birth certificate offers only prima facie

84

evidence9 of filiation and may be refuted by contrary evidence.

However, such evidence is lacking in the case at bar.
Mauricio's testimony that he was present when Doribel was born to
Edita Abila was understandably suspect, coming as it did from an
interested party. The affidavit of Abila 10 denying her earlier statement
in the petition for the guardianship of Doribel is of course hearsay, let
alone the fact that it was never offered in evidence in the lower courts.
Even without it, however, the birth certificate must be upheld in line
with Legaspi v. Court of Appeals,11 where we ruled that "the
evidentiary nature of public documents must be sustained in the
absence of strong, complete and conclusive proof of its falsity or
nullity."
Another reason why the petitioners' challenge must fail is the
impropriety of the present proceedings for that purpose. Doribel's
legitimacy cannot be questioned in a complaint for partition and
accounting but in a direct action seasonably filed by the proper party.
The presumption of legitimacy in the Civil Code x x x does not have
this purely evidential character. It serves a more fundamental
purpose. It actually fixes a civil status for the child born in wedlock,
and that civil status cannot be attacked collaterally. The legitimacy of
the child can be impugned only in a direct action brought for that
purpose, by the proper parties, and within the period limited by law.
The legitimacy of the child cannot be contested by way of defense or
as a collateral issue in another action for a different purpose. x x x. 12
(Emphasis supplied.)
In consequence of the above observations, we hold that Doribel, as the
legitimate daughter of Teodoro and Isabel Sayson, and Delia and
Edmundo, as their adopted children, are the exclusive heirs to the
intestate estate of the deceased couple, conformably to the following
Article 979 of the Civil Code:
Art. 979. Legitimate children and their descendants succeed the
parents and other ascendants, without distinction as to sex or age,
and even if they should come from different marriages.
An adopted child succeeds to the property of the adopting parents in
the same manner as a legitimate child.

The philosophy underlying this article is that a person's love descends

first to his children and grandchildren before it ascends to his parents
and thereafter spreads among his collateral relatives. It is also
supposed that one of his purposes in acquiring properties is to leave
them eventually to his children as a token of his love for them and as
a provision for their continued care even after he is gone from this
earth.
Coming now to the right of representation, we stress first the following
pertinent provisons of the Civil Code:
Art. 970. Representation is a right created by fiction of law, by virtue
of which the representative is raised to the place and the degree of the
person represented, and acquires the rights which the latter would
have if he were living or if he could have inherited.
Art. 971. The representative is called to the succession by the law and
not by the person represented. The representative does not succeed
the person represented but the one whom the person represented
would have succeeded.
Art. 981. Should children of the deceased and descendants of other
children who are dead, survive, the former shall inherit in their own
right, and the latter by right of representation.
There is no question that as the legitimate daughter of Teodoro and
thus the granddaughter of Eleno and Rafaela, Doribel has a right to
represent her deceased father in the distribution of the intestate
estate of her grandparents. Under Article 981, quoted above, she is
entitled to the share her father would have directly inherited had he
survived, which shall be equal to the shares of her grandparents'
other children.13
But a different conclusion must be reached in the case of Delia and
Edmundo, to whom the grandparents were total strangers. While it is
true that the adopted child shall be deemed to be a legitimate child
and have the same right as the latter, these rights do not include the
right of representation. The relationship created by the adoption is
between only the adopting parents and the adopted child and does
not extend to the blood relatives of either party. 14
In sum, we agree with the lower courts that Delia and Edmundo as
the adopted children and Doribel as the legitimate daughter of
Teodoro Sayson and Isabel Bautista, are their exclusive heirs and are

85

under no obligation to share the estate of their parents with the

petitioners. The Court of Appeals was correct however, in holding that
only Doribel has the right of representation in the inheritance of her
grandparents' intestate estate, the other private respondents being
only the adoptive children of the deceased Teodoro.
WHEREFORE, the petition is DENIED, and the challenged decision of
the Court of Appeals is AFFIRMED in toto, with costs against the
petitioners.

G.R. No. 138961. March 7, 2002.*

WILLIAM LIYAO, JR., represented by his mother Corazon Garcia,
petitioner, vs. JUANITA TANHOTI-LIYAO, PEARL MARGARET L.
TAN, TITA ROSE L. TAN AND LINDA CHRISTINA LIYAO,
respondents.
Parent and Child; Presumption of Legitimacy; The presumption of
legitimacy of children does not only flow out from a declaration
contained in the statute but is based on the broad principles of natural
justice and the supposed virtue of the mother.Under the New Civil
Code, a child born and conceived during a valid marriage is presumed
to be legitimate. The presumption of legitimacy of children does not
only flow out from a declaration contained in the statute but is based
on the broad principles of natural justice and the supposed virtue of
the mother. The presumption is grounded in a policy to protect
innocent offspring from the odium of illegitimacy.
Same; Same; Actions; Impugning the legitimacy of the child is a strictly
personal right of the husband, or in exceptional cases, his heirs for the
simple reason that he is the one directly confronted with the scandal
and ridicule which the infidelity of his wife produces and he should be
the one to decide whether to conceal that infidelity or expose it in view
of the moral and economic interest involved.The fact that Corazon
Garcia had been living separately from her husband, Ramon Yulo, at
the time petitioner was conceived and born is of no moment. While
physical impossibility for the husband to have sexual intercourse with
his wife is one of the grounds for impugning the legitimacy of the
child, it bears emphasis that the grounds for impugning the
legitimacy of the child mentioned in Article 255 of the Civil Code may
only be invoked by the husband, or in proper cases, his heirs under
the conditions set forth under Article 262 of the Civil Code.

Impugning the legitimacy of the child is a strictly personal right of the

husband, or in exceptional cases, his heirs for the simple reason that
he is the one directly confronted with the scandal and ridicule which
the infidelity of his wife produces and he should be the one to decide
whether to conceal that infidelity or expose it in view of the moral and
economic interest involved. It is only in exceptional cases that his
heirs are allowed to contest such legitimacy. Outside of these cases,
noneeven his heirscan impugn legitimacy; that would amount to
an insult to his memory.
Same; Same; Same; It is settled that a child born within a valid
marriage is presumed legitimate even though the mother may have
declared against its legitimacy or may have been sentenced as an
adulteress; The child himself cannot choose his own filiationif the
husband, presumed to be the father does not impugn the legitimacy of
the child, then the status of the child is fixed, and the latter cannot
choose to be the child of his mothers alleged paramour.It is therefor
clear that the present petition initiated by Corazon G. Garcia as
guardian ad litem of the then minor, herein petitioner, to compel
recognition by respondents of petitioner William Liyao, Jr, as the
illegitimate son of the late William Liyao cannot prosper. It is settled
that a child born within a valid marriage is presumed legitimate even
though the mother may have declared against its legitimacy or may
have been sentenced as an adulteress. We cannot allow petitioner to
maintain his present petition and subvert the clear mandate of the
law that only the husband, or in exceptional circumstances, his heirs,
could impugn the legitimacy of a child born in a valid and subsisting
marriage. The child himself cannot choose his own filiation. If the
husband, presumed to be the father does not impugn the legitimacy
of the child, then the status of the child is fixed, and the latter cannot
choose to be the child of his mothers alleged paramour. On the other
hand, if the presumption of legitimacy is overthrown, the child cannot
elect the paternity of the husband who successfully defeated the
presumption.
Same; Same; Same; It is settled that the legitimacy of the child can be
impugned only in a direct action brought for that purpose, by the proper
parties and within the period limited by law.We think not. As earlier
stated, it is only in exceptional cases that the heirs of the husband
are allowed to contest the legitimacy of the child. There is nothing on
the records to indicate that Ramon Yulo has already passed away at
the time of the birth of the petitioner nor at the time of the initiation
of this proceedings. Notably, the case at bar was initiated by
petitioner himself through his mother, Corazon Garcia, and not
through Enrique and Bernadette Yulo. It is settled that the legitimacy

86

of the child can be impugned only in a direct action brought for that
purpose, by the proper parties and within the period limited by law.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Castillo & Poblador for petitioner.
Quisumbing, Ignacio, Guia & Lambino Law Office for private
respondents.
DE LEON, JR., J.:
Before us is a petition for review on certiorari assailing the decision
dated June 4, 1999 of the Court of Appeals in CA-G.R. C.V. No.
453941 which reversed the decision of the Regional Trial Court (RTC)
of Pasig, Metro Manila, Branch 167 in declaring William Liyao, Jr. as
the illegitimate (spurious) son of the deceased William Liyao and
ordering Juanita Tanhoti-Liyao, Pearl Margaret L. Tan, Tita Rose L.
Tan and Linda Christina Liyao to recognize and acknowledge William
Liyao, Jr. as a compulsory heir of the deceased William Liyao and
entitled to all successional rights as such and to pay the costs of the
suit.
On November 29, 1976, William Liyao, Jr., represented by his mother
Corazon G. Garcia, filed Civil Case No. 24943 before the RTC of Pasig,
Branch 7 which is an action for compulsory recognition as the
illegitimate (spurious) child of the late William Liyao against herein
respondents, Juanita Tanhoti-Liyao, Pearl Margaret L. Tan, Tita Rose
L. Tan and Linda Christina Liyao.2 The complaint was later amended
to include the allegation that petitioner was in continuous possession
and enjoyment of the status of the child of said William Liyao,
petitioner having been recognized and acknowledged as such child by
the decedent during his lifetime.3
The facts as alleged by petitioner are as follows:
Corazon G. Garcia is legally married to but living separately from
Ramon M. Yulo for more than ten (10) years at the time of the
institution of the said civil case. Corazon cohabited with the late
William Liyao from 1965 up to the time of Williams untimely demise
on December 2, 1975. They lived together in the company of
Corazons two (2) children from her subsisting marriage, namely:

Enrique and Bernadette, both surnamed Yulo, in a succession of

rented houses in Quezon City and Manila. This was with the
knowledge of William Liyaos legitimate children, Tita Rose L. Tan and
Linda Christina Liyao-Ortiga, from his subsisting marriage with
Juanita Tanhoti Liyao. Tita Rose and Christina were both employed at
the Far East Realty Investment, Inc. of which Corazon and William
were then vice president and president, respectively.
Sometime in 1974, Corazon bought a lot from Ortigas and Co. which
required the signature of her husband, Ramon Yulo, to show his
consent to the aforesaid sale. She failed to secure his signature and,
had never been in touch with him despite the necessity to meet him.
Upon the advice of William Liyao, the sale of the parcel of land located
at the Valle Verde Subdivision was registered under the name of Far
East Realty Investment, Inc.
On June 9, 1975, Corazon gave birth to William Liyao, Jr. at the
Cardinal Santos Memorial Hospital. During her three (3) day stay at
the hospital, William Liyao visited and stayed with her and the new
born baby, William, Jr. (Billy). All the medical and hospital expenses,
food and clothing were paid under the account of William Liyao.
William Liyao even asked his confidential secretary, Mrs. Virginia
Rodriguez, to secure a copy of Billys birth certificate. He likewise
instructed Corazon to open a bank account for Billy with the
Consolidated Bank and Trust Company 4 and gave weekly amounts to
be deposited therein.5 William Liyao would bring Billy to the office,
introduce him as his good looking son and had their pictures taken
together.6
During the lifetime of William Liyao, several pictures were taken
showing, among others, William Liyao and Corazon together with
Billys godfather, Fr. Julian Ruiz, William Liyaos legal staff and their
wives while on vacation in Baguio.7 Corazon also presented pictures
in court to prove that that she usually accompanied William Liyao
while attending various social gatherings and other important
meetings.8 During the occasion of William Liyaos last birthday on
November 22, 1975 held at the Republic Supermarket, William Liyao
expressly acknowledged Billy as his son in the presence of Fr. Ruiz,
Maurita Pasion and other friends and said, Hey, look I am still young,
I can still make a good looking son.9 Since birth, Billy had been in
continuous possession and enjoyment of the status of a recognized
and/or acknowledged child of William Liyao by the latters direct and
overt acts. William Liyao supported Billy and paid for his food,
clothing and other material needs. However, after William Liyaos
death, it was Corazon who provided sole support to Billy and took

87

care of his tuition fees at La Salle, Greenhills. William Liyao left his
personal belongings, collections, clothing, old newspaper clippings
and laminations at the house in White Plains where he shared his last
moments with Corazon.
Testifying for the petitioner, Maurita Pasion declared that she knew
both Corazon G. Garcia and William Liyao who were godparents to her
children. She used to visit Corazon and William Liyao from 19651975. The two children of Corazon from her marriage to Ramon Yulo,
namely, Bernadette and Enrique (Ike), together with some
housemaids lived with Corazon and William Liyao as one family. On
some occasions like birthdays or some other celebrations, Maurita
would sleep in the couples residence and cook for the family. During
these occasions, she would usually see William Liyao in sleeping
clothes. When Corazon, during the latter part of 1974, was pregnant
with her child Billy, Maurita often visited her three (3) to four (4) times
a week in Greenhills and later on in White Plains where she would
often see William Liyao. Being a close friend of Corazon, she was at
the Cardinal Santos Memorial Hospital during the birth of Billy. She
continuously visited them at White Plains and knew that William
Liyao, while living with her friend Corazon, gave support by way of
grocery supplies, money for household expenses and matriculation
fees for the two (2) older children, Bernadette and Enrique. During
William Liyaos birthday on November 22, 1975 held at the Republic
Supermaket Office, he was carrying Billy and told everybody present,
including his two (2) daughters from his legal marriage, Look, this is
my son, very guapo and healthy.10 He then talked about his plan for
the baptism of Billy before Christmas. He intended to make it
engrande and make the bells of San Sebastian Church ring.11
Unfortunately, this did not happen since William Liyao passed away
on December 2, 1975. Maurita attended Mr. Liyaos funeral and
helped Corazon pack his clothes. She even recognized a short sleeved
shirt of blue and gray12 which Mr. Liyao wore in a photograph 13 as
well as another shirt of lime green 14 as belonging to the deceased. A
note was also presented with the following inscriptions: To Cora, Love
From William.15 Maurita remembered having invited the couple
during her mothers birthday where the couple had their pictures
taken while exhibiting affectionate poses with one another. Maurita
knew that Corazon is still married to Ramon Yulo since her marriage
has not been annulled nor is Corazon legally separated from her said
husband. However, during the entire cohabitation of William Liyao
with Corazon Garcia, Maurita had not seen Ramon Yulo or any other
man in the house when she usually visited Corazon.

Gloria Panopio testified that she is the owner of a beauty parlor and
that she knew that Billy is the son of her neighbors, William Liyao
and Corazon Garcia, the latter being one of her customers. Gloria met
Mr. Liyao at Corazons house in Scout Delgado, Quezon City in the
Christmas of 1965. Gloria had numerous occasions to see Mr. Liyao
from 1966 to 1974 and even more so when the couple transferred to
White Plains, Quezon City from 1974-1975. At the time Corazon was
conceiving, Mr. Liyao was worried that Corazon might have another
miscarriage so he insisted that she just stay in the house, play
mahjong and not be bored. Gloria taught Corazon how to play
mahjong and together with Atty. Brillantes wife and sister-in-law, had
mahjong sessions among themselves. Gloria knew that Mr. Liyao
provided Corazon with a rented house, paid the salary of the maids
and food for Billy. He also gave Corazon financial support. Gloria
knew that Corazon is married but is separated from Ramon Yulo
although Gloria never had any occasion to see Mr. Yulo with Corazon
in the house where Mr. Liyao and Corazon lived.
Enrique Garcia Yulo testified that he had not heard from his father,
Ramon Yulo, from the time that the latter abandoned and separated
from his family. Enrique was about six (6) years old when William
Liyao started to live with them up to the time of the latters death on
December 2, 1975. Mr. Liyao was very supportive and fond of
Enriques half brother, Billy. He identified several pictures showing
Mr. Liyao carrying Billy at the house as well as in the office. Enriques
testimony was corroborated by his sister, Bernadette Yulo, who
testified that the various pictures showing Mr. Liyao carrying Billy
could not have been superimposed and that the negatives were in the
possession of her mother, Corazon Garcia.
Respondents, on the other hand, painted a different picture of the
story.
Linda Christina Liyao-Ortiga stated that her parents, William Liyao
and Juanita Tanhoti-Liyao, were legally married. 16 Linda grew up and
lived with her parents at San Lorenzo Village, Makati, Metro Manila
until she got married; that her parents were not separated legally or
in fact and that there was no reason why any of her parents would
institute legal separation proceedings in court. Her father lived at
their house in San Lorenzo Village and came home regularly. Even
during out of town business trips or for conferences with the lawyers
at the office, her father would change his clothes at home because of
his personal hygiene and habits. Her father reportedly had trouble
sleeping in other peoples homes. Linda described him as very
conservative and a strict disciplinarian. He believed that no amount of

88

success would compensate for failure of a home. As a businessman,

he was very tough, strong, fought for what he believed in and did not
give up easily. He suffered two strokes before the fatal attack which
led to his death on December 2, 1975. He suffered a stroke at the
office sometime in April-May 1974 and was attended by Dr. Santiago
Co. He then stayed in the house for two (2) to three (3) months for his
therapy and acupuncture treatment. He could not talk, move, walk,
write or sign his name. In the meantime, Linda and her sister, Tita
Rose Liyao-Tan, ran the office. She handled the collection of rents
while her sister referred legal matters to their lawyers. William Liyao
was bedridden and had personally changed. He was not active in
business and had dietary restrictions. Mr. Liyao also suffered a milder
stroke during the latter part of September to October 1974. He stayed
home for two (2) to three (3) days and went back to work. He felt
depressed, however, and was easily bored. He did not put in long
hours in the office unlike before and tried to spend more time with his
family.
Linda testified that she knew Corazon Garcia is still married to
Ramon Yulo. Corazon was not legally separated from her husband
and the records from the Local Civil Registrar do not indicate that the
couple obtained any annulment 17 of their marriage. Once in 1973,
Linda chanced upon Ramon Yulo picking up Corazon Garcia at the
company garage. Immediately after the death of Lindas father,
Corazon went to Lindas office for the return of the formers alleged
investments with the Far East Realty Investment, Inc. including a
parcel of land sold by Ortigas and Company. Linda added that
Corazon, while still a Vice-President of the company, was able to take
out documents, clothes and several laminated pictures of William
Liyao from the office. There was one instance when she was told by
the guards, Mrs. Yulo is leaving and taking out things again.18 Linda
then instructed the guards to bring Mrs. Yulo to the office upstairs
but her sister, Tita Rose, decided to let Corazon Garcia go. Linda did
not recognize any article of clothing which belonged to her father after
having been shown three (3) large suit cases full of mens clothes,
underwear, sweaters, shorts and pajamas.
Tita Rose Liyao-Tan testified that her parents were legally married and
had never been separated. They resided at No. 21 Hernandez Street,
San Lorenzo Village, Makati up to the time of her fathers death on
December 2, 1975.19 Her father suffered two (2) minor cardio-vascular
arrests (CVA) prior to his death. During the first heart attack
sometime between April and May 1974, his speech and hands were
affected and he had to stay home for two (2) to three (3) months under
strict medication, taking aldomet, serpacil and cifromet which were

prescribed by Dr. Bonifacio Yap, for high blood pressure and

cholesterol level control.20 Tita Rose testified that after the death of
Mr. Liyao, Corazon Garcia was paid the amount of One Hundred
Thousand Pesos (P100,000.00) representing her investment in the Far
East Realty Investment, Inc. Tita Rose also stated that her family
never received any formal demand that they recognize a certain
William Liyao, Jr. as an illegitimate son of her father, William Liyao.
After assuming the position of President of the company, Tita Rose did
not come across any check signed by her late father representing
payment to lessors as rentals for the house occupied by Corazon
Garcia. Tita Rose added that the laminated photographs presented by
Corazon Garcia are the personal collection of the deceased which were
displayed at the latters office.
The last witness who testified for the respondents was Ramon Pineda,
driver and bodyguard of William Liyao from 1962 to 1974, who said
that he usually reported for work at San Lorenzo Village, Makati to
pick up his boss at 8:00 oclock in the morning. At past 7:00 oclock
in the evening, either Carlos Palamigan or Serafin Villacillo took over
as night shift driver. Sometime between April and May 1974, Mr.
Liyao got sick. It was only after a month that he was able to report to
the office. Thereafter, Mr. Liyao was not able to report to the office
regularly. Sometime in September 1974, Mr. Liyao suffered from
another heart attack. Mr. Pineda added that as a driver and
bodyguard of Mr. Liyao, he ran errands for the latter among which
was buying medicine for him like capasid and aldomet. On December
2, 1975, Mr. Pineda was called inside the office of Mr. Liyao. Mr.
Pineda saw his employer leaning on the table. He tried to massage Mr.
Liyaos breast and decided later to carry and bring him to the hospital
but Mr. Liyao died upon arrival thereat. Mrs. Liyao and her daughter,
Linda Liyao-Ortiga were the first to arrive at the hospital.
Mr. Pineda also declared that he knew Corazon Garcia to be one of the
employees of the Republic Supermarket. People in the office knew that
she was married. Her husband, Ramon Yulo, would sometimes go to
the office. One time, in 1974, Mr. Pineda saw Ramon Yulo at the office
garage as if to fetch Corazon Garcia. Mr. Yulo who was also asking
about cars for sale, represented himself as car dealer.
Witness Pineda declared that he did not know anything about the
claim of Corazon. He freely relayed the information that he saw Mr.
Yulo in the garage of Republic Supermarket once in 1973 and then in
1974 to Atty. Quisumbing when he went to the latters law office.
Being the driver of Mr. Liyao for a number of years, Pineda said that
he remembered having driven the group of Mr. Liyao, Atty.

89

Astraquillo, Atty. Brillantes, Atty. Magno and Atty. Laguio to Baguio

for a vacation together with the lawyers wives. During his
employment, as driver of Mr. Liyao, he does not remember driving for
Corazon Garcia on a trip to Baguio or for activities like shopping.
On August 31, 1993, the trial court rendered a decision, the
dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff
and against the defendants as follows:
1. (a) Confirming the appointment of Corazon G. Garcia as the
guardian ad litem of the minor William Liyao, Jr.;
2. (b) Declaring the minor William Liyao, Jr. as the illegitimate
(spurious) son of the deceased William Liyao;
3. (c) Ordering the defendants Juanita Tanhoti Liyao, Pearl
Margaret L. Tan, Tita Rose L. Tan and Christian Liyao, to
recognize, and acknowledge the minor William Liyao, Jr. as a
compulsory heir of the deceased William Liyao, entitled to all
succesional rights as such; and
4. (d) Costs of suit.21
In ruling for herein petitioner, the trial court said it was convinced by
preponderance of evidence that the deceased William Liyao sired
William Liyao, Jr. since the latter was conceived at the time when
Corazon Garcia cohabited with the deceased. The trial court observed
that herein petitioner had been in continuous possession and
enjoyment of the status of a child of the deceased by direct and overt
acts of the latter such as securing the birth certificate of petitioner
through his confidential secretary, Mrs. Virginia Rodriguez; openly
and publicly acknowledging petitioner as his son; providing
sustenance and even introducing herein petitioner to his legitimate
children.
The Court of Appeals, however, reversed the ruling of the trial court
saying that the law favors the legitimacy rather than the illegitimacy
of the child and the presumption of legitimacy is thwarted only on
ethnic ground and by proof that marital intimacy between husband
and wife was physically impossible at the period cited in Article 257 in
relation to Article 255 of the Civil Code. The appellate court gave
weight to the testimonies of some witnesses for the respondents that
Corazon Garcia and Ramon Yulo who were still legally married and
have not secured legal separation, were seen in each others company
during the supposed time that Corazon cohabited with the deceased
William Liyao. The appellate court further noted that the birth

certificate and the baptismal certificate of William Liyao, Jr. which

were presented by petitioner are not sufficient to establish proof of
paternity in the absence of any evidence that the deceased, William
Liyao, had a hand in the preparation of said certificates and
considering that his signature does not appear thereon. The Court of
Appeals stated that neither do family pictures constitute competent
proof of filiation. With regard to the passbook which was presented as
evidence for petitioner, the appellate court observed that there was
nothing in it to prove that the same was opened by William Liyao for
either petitioner or Corazon Garcia since William Liyaos signature
and name do not appear thereon.
His motion for reconsideration having been denied, petitioner filed the
present petition.
It must be stated at the outset that both petitioner and respondents
have raised a number of issues which relate solely to the sufficiency of
evidence presented by petitioner to establish his claim of filiation with
the late William Liyao. Unfortunately, both parties have consistently
overlooked the real crux of this litigation: May petitioner impugn his
own legitimacy to be able to claim from the estate of his supposed
father, William Liyao?
We deny the present petition.
Under the New Civil Code, a child born and conceived during a valid
marriage is presumed to be legitimate.22 The presumption of
legitimacy of children does not only flow out from a declaration
contained in the statute but is based on the broad principles of
natural justice and the supposed virtue of the mother. The
presumption is grounded in a policy to protect innocent offspring from
the odium of illegitimacy.23
The presumption of legitimacy of the child, however, is not conclusive
and consequently, may be overthrown by evidence to the contrary.
Hence, Article 255 of the New Civil Code 24 provides:
Article 255. Children born after one hundred and eighty days
following the celebration of the marriage, and before three hundred
days following its dissolution or the separation of the spouses shall be
presumed to be legitimate.
Against this presumption no evidence shall be admitted other than
that of the physical impossibility of the husbands having access to

90

his wife within the first one hundred and twenty days of the three
hundred which preceded the birth of the child.
This physical impossibility may be caused:
1. 1) By the impotence of the husband;
2. 2) By the fact that husband and wife were living separately in
such a way that access was not possible;
3. 3) By the serious illness of the husband.
Petitioner insists that his mother, Corazon Garcia, had been living
separately for ten (10) years from her husband, Ramon Yulo, at the
time that she cohabited with the late William Liyao and it was
physically impossible for her to have sexual relations with Ramon
Yulo when petitioner was conceived and born. To bolster his claim,
petitioner presented a document entitled, Contract of Separation, 25
executed and signed by Ramon Yulo indicating a waiver of rights to
any and all claims on any property that Corazon Garcia might acquire
in the future.26
The fact that Corazon Garcia had been living separately from her
husband, Ramon Yulo, at the time petitioner was conceived and born
is of no moment. While physical impossibility for the husband to have
sexual intercourse with his wife is one of the grounds for impugning
the legitimacy of the child, it bears emphasis that the grounds for
impugning the legitimacy of the child mentioned in Article 255 of the
Civil Code may only be invoked by the husband, or in proper cases,
his heirs under the conditions set forth under Article 262 of the Civil
Code.27 Impugning the legitimacy of the child is a strictly personal
right of the husband, or in exceptional cases, his heirs for the simple
reason that he is the one directly confronted with the scandal and
ridicule which the infidelity of his wife produces and he should be the
one to decide whether to conceal that infidelity or expose it in view of
the moral and economic interest involved.28 It is only in exceptional
cases that his heirs are allowed to contest such legitimacy. Outside of
these cases, noneeven his heirscan impugn legitimacy; that would
amount to an insult to his memory.29
It is therefor clear that the present petition initiated by Corazon G.
Garcia as guardian ad litem of the then minor, herein petitioner, to
compel recognition by respondents of petitioner William Liyao, Jr, as
the illegitimate son of the late William Liyao cannot prosper. It is
settled that a child born within a valid marriage is presumed
legitimate even though the mother may have declared against its
legitimacy or may have been sentenced as an adulteress. 30 We cannot

allow petitioner to maintain his present petition and subvert the clear
mandate of the law that only the husband, or in exceptional
circumstances, his heirs, could impugn the legitimacy of a child born
in a valid and subsisting marriage. The child himself cannot choose
his own filiation. If the husband, presumed to be the father does not
impugn the legitimacy of the child, then the status of the child is
fixed, and the latter cannot choose to be the child of his mothers
alleged paramour. On the other hand, if the presumption of legitimacy
is overthrown, the child cannot elect the paternity of the husband
who successfully defeated the presumption. 31
Do the acts of Enrique and Bernadette Yulo, the undisputed children
of Corazon Garcia with Ramon Yulo, in testifying for herein petitioner
amount to impugnation of the legitimacy of the latter?
We think not. As earlier stated, it is only in exceptional cases that the
heirs of the husband are allowed to contest the legitimacy of the child.
There is nothing on the records to indicate that Ramon Yulo has
already passed away at the time of the birth of the petitioner nor at
the time of the initiation of this proceedings. Notably, the case at bar
was initiated by petitioner himself through his mother, Corazon
Garcia, and not through Enrique and Bernadette Yulo. It is settled
that the legitimacy of the child can be impugned only in a direct action
brought for that purpose, by the proper parties and within the period
limited by law.
Considering the foregoing, we find no reason to discuss the sufficiency
of the evidence presented by both parties on the petitioners claim of
alleged filiation with the late William Liyao. In any event, there is no
clear, competent and positive evidence presented by the petitioner
that his alleged father had admitted or recognized his paternity.
WHEREFORE, the instant petition is DENIED. The assailed decision
of the Court of Appeals in CA-G.R. CV No. 45394 is hereby
AFFIRMED. No costs.
SO ORDERED.
Bellosillo (Chairman), Mendoza, Quisumbing and Buena, JJ.,
concur.
Petition denied, judgment affirmed.

91

Notes.For the success of an action to establish illegitimate filiation

under second paragraph of Art. 172 of the Family Code, a high
standard of proof is requiredspecifically, to prove open and
continuous possession of the status of an illegitimate child, there
must be evidence of the manifestation of the permanent intention of
the supposed father to consider the child as his, by continuous and
clear manifestations of parental affection and care, which cannot be
attributed to pure charity. (Jison vs. Court of Appeals, 286 SCRA 286
[1998])
There is perhaps no presumption of the law more firmly established
and founded on sounder morality and more convincing reason than
the presumption that children born in wedlock are legitimate; Upon
the expiration of the periods set forth in Article 170, and in proper
cases Article 171, of the Family Code, the action to impugn the
legitimacy of a child would no longer be legally feasible and the status
conferred by the presumption becomes fixed and unassailable. (De
Jesus vs. Estate of Decedent Juan Gamboa Dizon, 366 SCRA 499
[2001])
Article 263 of the Civil Code refers to an action to impugn the
legitimacy of a child, to assert and prove that a person is not a mans
child by his wifeit does not refer to situations where a child is
alleged not to be the child at all of a particular couple. (Labagala vs.
Santiago, 371 SCRA 360 [2001])

92

G.R. No. 142877. October 2, 2001.*

JINKIE CHRISTIE A. DE JESUS and JACQUELINE A. DE JESUS,
minors, represented by their mother, CAROLINA A. DE JESUS,
petitioners, vs. THE ESTATE OF DECEDENT JUAN GAMBOA
DIZON, ANGELINA V. DIZON, CARLOS DIZON, FELIPE DIZON,
JUAN DIZON, JR. and MARYLIN DIZON and as proper parties:
FORMS MEDIA CORP., QUAD MANAGEMENT CORP., FILIPINAS
PAPER SALES CO., INC. and AMITY CONSTRUCTION &
INDUSTRIAL ENTERPRISES, INC., respondents.
Parent and Child; Filiation; Illegitimate Children; Actions; The due
recognition of illegitimate children in a record of birth, a will, a
statement before a court of record, or in any authentic writing is, in
itself, a consummated act of acknowledgment of the child, and no
further court action is required, but where a claim for recognition is
predicated on other evidence merely tending to prove paternity, judicial
action within the applicable statute of limitations is essential in order to
establish the childs acknowledgment.The filiation of illegitimate
children, like legitimate children, is established by (1) the record of
birth appearing in the civil register or a final judgment; or (2) an
admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned. In the
absence thereof, filiation shall be proved by (1) the open and
continuous possession of the status of a legitimate child; or (2) any
other means allowed by the Rules of Court and special laws. The due
recognition of an illegitimate child in a record of birth, a will, a
statement before a court of record, or in any authentic writing is, in
itself, a consummated act of acknowledgment of the child, and no
further court action is required. In fact, any authentic writing is treated
not just a ground for compulsory recognition; it is in itself a voluntary
recognition that does not require a separate action for judicial
approval. Where, instead, a claim for recognition is predicated on other
evidence merely tending to prove paternity, i.e., outside of a record of
birth, a will, a statement before a court of record or an authentic
writing, judicial action within the applicable statute of limitations is
essential in order to establish the childs acknowledgment.
Same; Same; Same; Same; Presumptions; There is perhaps no
presumption of the law more firmly established and founded on
sounder morality and more convincing reason than the presumption
that children born in wedlock are legitimate; Upon the expiration of the
periods set forth in Article 170, and in proper cases Article 171, of the

Family Code, the action to impugn the legitimacy of a child would no

longer be legally feasible and the status conferred by the presumption
becomes fixed and unassailable.There is perhaps no presumption of
the law more firmly established and founded on sounder morality and
more convincing reason than the presumption that children born in
wedlock are legitimate. This presumption indeed becomes conclusive
in the absence of proof that there is physical impossibility of access
between the spouses during the first 120 days of the 300 days which
immediately precedes the birth of the child due to (a) the physical
incapacity of the husband to have sexual intercourse with his wife; (b)
the fact that the husband and wife are living separately in such a way
that sexual intercourse is not possible; or (c) serious illness of the
husband, which absolutely prevents sexual intercourse. Quite
remarkably, upon the expiration of the periods set forth in Article
170, and in proper cases Article 171, of the Family Code (which took
effect on 03 August 1988), the action to impugn the legitimacy of a
child would no longer be legally feasible and the status conferred by
the presumption becomes fixed and unassailable.
Same; Same; Same; Same; Same; The presumption of legitimacy fixes a
civil status for the child born in wedlock, and only the father, or in
exceptional instances the latters heirs, can contest in an appropriate
action the legitimacy of a child born to his wifeit is only when the
legitimacy of a child has been successfully impugned that the paternity
of the husband can be rejected.Succinctly, in an attempt to establish
their illegitimate filiation to the late Juan G. Dizon, petitioners, in
effect, would impugn their legitimate status as being children of
Danilo de Jesus and Carolina Aves de Jesus. This step cannot be
aptly done because the law itself establishes the legitimacy of children
conceived or born during the marriage of the parents. The
presumption of legitimacy fixes a civil status for the child born in
wedlock, and only the father, or in exceptional instances the latters
heirs, can contest in an appropriate action the legitimacy of a child born
to his wife. Thus, it is only when the legitimacy of a child has been
successfully impugned that the paternity of the husband can be
rejected.
Same; Same; Same; Same; The issue whether the petitioners are indeed
the acknowledged illegitimate offsprings of the decedent cannot be
aptly adjudicated without an action having first been instituted to
impugn their legitimacy as being the children of some other couple born
in lawful wedlock.The rule that the written acknowledgment made
by the deceased Juan G. Dizon establishes petitioners alleged
illegitimate filiation to the decedent cannot be validly invoked to be of
any relevance in this instance. This issue, i.e., whether petitioners are

93

indeed the acknowledged illegitimate offsprings of the decedent,

cannot be aptly adjudicated without an action having been first been
instituted to impugn their legitimacy as being the children of Danilo
B. de Jesus and Carolina Aves de Jesus born in lawful wedlock.
Jurisprudence is strongly settled that the paramount declaration of
legitimacy by law cannot be attacked collaterally, one that can only be
repudiated or contested in a direct suit specifically brought for that
purpose. Indeed, a child so born in such wedlock shall be considered
legitimate although the mother may have declared against its
legitimacy or may have been sentenced as having been an adulteress.

deceased was a stockholder, sought the dismissal of the case, arguing

that the complaint, even while denominated as being one for partition,
would nevertheless call for altering the status of petitioners from
being the legitimate children of the spouses Danilo de Jesus and
Carolina de Jesus to instead be the illegitimate children of Carolina de
Jesus and deceased Juan Dizon. The trial court denied, due to lack of
merit, the motion to dismiss and the subsequent motion for
reconsideration on, respectively, 13 September 1993 and 15 February
1994. Respondents assailed the denial of said motions before the
Court of Appeals.

PETITION for review on certiorari of a decision of the Regional Trial

Court of Quezon City, Br. 88.

On 20 May 1994, the appellate court upheld the decision of the lower
court and ordered the case to be remanded to the trial court for
further proceedings. It ruled that the veracity of the conflicting
assertions should be threshed out at the trial considering that the
birth certificates presented by respondents appeared to have
effectively contradicted petitioners allegation of illegitimacy.

The facts are stated in the opinion of the Court.

Ramon N. Bernaldo for petitioners.
Fortun, Narvasa & Salazar for respondents.
VITUG, J.:
The petition involves the case of two illegitimate children who, having
been born in lawful wedlock, claim to be the illegitimate scions of the
decedent in order to enforce their respective shares in the latters
estate under the rules on succession.
Danilo B. de Jesus and Carolina Aves de Jesus got married on 23
August 1964. It was during this marriage that Jacqueline A. de Jesus
and Jinkie Christie A. de Jesus, herein petitioners, were born, the
former on 01 March 1979 and the latter on 06 July 1982.
In a notarized document, dated 07 June 1991, Juan G. Dizon
acknowledged Jacqueline and Jinkie de Jesus as being his own
illegitimate children by Carolina Aves de Jesus. Juan G. Dizon died
intestate on 12 March 1992, leaving behind considerable assets
consisting of shares of stock in various corporations and some real
property. It was on the strength of his notarized acknowledgment that
petitioners filed a complaint on 01 July 1993 for Partition with
Inventory and Accounting of the Dizon estate with the Regional Trial
Court, Branch 88, of Quezon City.
Respondents, the surviving spouse and legitimate children of the
decedent Juan G. Dizon, including the corporations of which the

On 03 January 2000, long after submitting their answer, pre-trial

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

94

In their comment, respondents submit that the rule in Divina-gracia

being relied by petitioners is inapplicable, to the case because there
has been no attempt to impugn legitimate filiation in Divinagracia. In
praying for the affirmance of dismissal of the complaint, respondents
count on the case of Sayson vs. Court of Appeals,3 which has ruled
that the issue of legitimacy cannot be questioned in a complaint for
partition and accounting but must be seasonably brought up in a
direct action frontally addressing the issue.
The controversy between the parties has been pending for much too
long, and it is time that this matter draws to a close.
The filiation of illegitimate children, like legitimate children, is
established by (1) the record of birth appearing in the civil register or
a final judgment; or (2) an admission of legitimate filiation in a public
document or a private handwritten instrument and signed by the
parent concerned. In the absence thereof, filiation shall be proved by
(1) the open and continuous possession of the status of a legitimate
child; or (2) any other means allowed by the Rules of Court and
special laws.4 The due recognition of an illegitimate child in a record of
birth, a will, a statement before a court of record, or in any authentic
writing is, in itself, a consummated act of acknowledgment of the child,
and no further court action is required.5 In fact, any authentic writing
is treated not just a ground for compulsory recognition; it is in itself a
voluntary recognition that does not require a separate action for
judicial approval.6 Where, instead, a claim for recognition is predicated
on other evidence merely tending to prove paternity, i.e., outside of a
record of birth, a will, a statement before a court of record or an
authentic writing, judicial action within the applicable statute of
limitations is essential in order to establish the childs
acknowledgment.7
A scrutiny of the records would show that petitioners were born
during the marriage of their parents. The certificates of live birth
would also identify Danilo de Jesus as being their father.
There is perhaps no presumption of the law more firmly established
and founded on sounder morality and more convincing reason than
the presumption that children born in wedlock are legitimate. 8 This
presumption indeed becomes conclusive in the absence of proof that
there is physical impossibility of access between the spouses during
the first 120 days of the 300 days which immediately precedes the
birth of the child due to (a) the physical incapacity of the husband to
have sexual intercourse with his wife; (b) the fact that the husband
and wife are living separately in such a way that sexual intercourse is

not possible; or (c) serious illness of the husband, which absolutely

prevents sexual intercourse.9 Quite remarkably, upon the expiration
of the periods set forth in Article 170,10 and in proper cases Article
171,11 of the Family Code (which took effect on 03 August 1988), the
action to impugn the legitimacy of a child would no longer be legally
feasible and the status conferred by the presumption becomes fixed
and unassailable.12
Succinctly, in an attempt to establish their illegitimate filiation to the
late Juan G. Dizon, petitioners, in effect, would impugn their
legitimate status as being children of Danilo de Jesus and Carolina
Aves de Jesus. This step cannot be aptly done because the law itself
establishes the legitimacy of children conceived or born during the
marriage of the parents. The presumption of legitimacy fixes a civil
status for the child born in wedlock, and only the father, 13 or in
exceptional instances the latters heirs, 14 can contest in an appropriate
action the legitimacy of a child born to his wife. Thus, it is only when
the legitimacy of a child has been successfully impugned that the
paternity of the husband can be rejected.
Respondents correctly argued that petitioners hardly could find
succor in Divinagracia. In said case, the Supreme Court remanded to
the trial court for further proceedings the action for partition filed by
an illegitimate child who had claimed to be an acknowledged spurious
child by virtue of a private document, signed by the acknowledging
parent, evidencing such recognition. It was not a case of legitimate
children asserting to be somebody elses illegitimate children.
Petitioners totally ignored the fact that it was not for them, given the
attendant circumstances particularly, to declare that they could not
have been the legitimate children, clearly opposed to the entries in
their respective birth certificates, of Danilo and Carolina de Jesus.
The rule that the written acknowledgment made by the deceased Juan
G. Dizon establishes petitioners alleged illegitimate filiation to the
decedent cannot be validly invoked to be of any relevance in this
instance. This issue, i.e., whether petitioners are indeed the
acknowledged illegitimate offsprings of the decedent, cannot be aptly
adjudicated without an action having been first been instituted to
impugn their legitimacy as being the children of Danilo B. de Jesus
and Carolina Aves de Jesus born in lawful wedlock. Jurisprudence is
strongly settled that the paramount declaration of legitimacy by law
cannot be attacked collaterally,15 one that can only be repudiated or
contested in a direct suit specifically brought for that purpose.16
Indeed, a child so born in such wedlock shall be considered legitimate

95

although the mother may have declared against its legitimacy or may
have been sentenced as having been an adulteress. 17
WHEREFORE, the foregoing disquisitions considered, the instant
petition is DENIED. No costs.
SO ORDERED.
Melo (Chairman), Panganiban and Sandoval-Gutierrez, JJ., concur.
Petition denied.
Notes.The Family Code, which repealed Articles 276, 277, 278, 279
and 280 of the Civil Code, now allows the establishment of illegitimate
filiation in the same way and on the same evidence as legitimate
children. (Rodriguez vs. Court of Appeals, 245 SCRA 150 [1995])
DNA, being a relatively new science, has not yet been accorded official
recognition by the courtspaternity will still have to be resolved by
conventional evidence. (Pe Lim vs. Court of Appeals, 270 SCRA 1
[1997])
Questions as to who are the heirs of the decedent, proof of filiation of
illegitimate children and the determination of the estate of the latter
and claims thereto should be ventilated in the proper probate court or
in a special proceeding instituted for the purpose and cannot be
adjudicated in an ordinary civil action for recovery of ownership and
possession. (Agapay vs. Palang, 276 SCRA 340 [1997])

96

G.R. No. 123450. August 31, 2005.*

GERARDO B. CONCEPCION, petitioner, vs. COURT OF APPEALS
and MA. THERESA ALMONTE, respondents.
Family Code; Marriages; Filiation; The status and filiation of the child
cannot be compromised. Article 164 of the Family Code is clear. A child
who is conceived or born during the marriage of his parents is
legitimate.The status and filiation of a child cannot be compromised.
Article 164 of the Family Code is clear. A child who is conceived or
born during the marriage of his parents is legitimate. As a guaranty in
favor of the child and to protect his status of legitimacy, Article 167 of
the Family Code provides: Article 167. The child shall be considered
legitimate although the mother may have declared against its
legitimacy or may have been sentenced as an adulteress.
Same; Same; Same; The law requires that every reasonable
presumption be made in favor of legitimacy.The law requires that
every reasonable presumption be made in favor of legitimacy. We
explained the rationale of this rule in the recent case of Cabatania v.
Court of Appeals: The presumption of legitimacy does not only flow out
of a declaration in the statute but is based on the broad principles of
natural justice and the supposed virtue of the mother. It is grounded
on the policy to protect the innocent offspring from the odium of
illegitimacy.
Same; Same; Same; The presumption of legitimacy proceeds from the
sexual union in marriage, particularly during the period of conception.
To overthrow this presumption on the basis of Article 166 (1)(b) of the
Family Code, it must be shown beyond reasonable doubt that there
was no access that could have enable the husband to father the
child.The presumption of legitimacy proceeds from the sexual union
in marriage, particularly during the period of conception. To
overthrow this presumption on the basis of Article 166 (1)(b) of the
Family Code, it must be shown beyond reasonable doubt that there
was no access that could have enabled the husband to father the
child. Sexual intercourse is to be presumed where personal access is
not disproved, unless such presumption is rebutted by evidence to the
contrary.
Same; Same; Same; The presumption is quasi-conclusive and may be
refuted only by the evidence of physical impossibility of coitus between

husband and wife within the first 120 days of the 300 days which
immediately preceded the birth of the child.The presumption is
quasi-conclusive and may be refuted only by the evidence of physical
impossibility of coitus between husband and wife within the first 120
days of the 300 days which immediately preceded the birth of the
child. To rebut the presumption, the separation between the spouses
must be such as to make marital intimacy impossible. This may take
place, for instance, when they reside in different countries or
provinces and they were never together during the period of
conception. Or, the husband was in prison during the period of
conception, unless it appears that sexual union took place through
the violation of prison regulations.
Same; Same; Same; Sexual union between spouses is assumed.
Evidence sufficient to defeat the assumption should be presented by
him who asserts the contrary.Sexual union between spouses is
assumed. Evidence sufficient to defeat the assumption should be
presented by him who asserts the contrary. There is no such evidence
here. Thus, the presumption of legitimacy in favor of Jose Gerardo, as
the issue of the marriage between Ma. Theresa and Mario, stands.
Same; Same; Same; An assertion by the mother against the legitimacy
of her child cannot affect the legitimacy of a child born or conceived
within a valid marriage.The import of Ma. Theresas statement is
that Jose Gerardo is not her legitimate son with Mario but her
illegitimate son with Gerardo. This declarationan avowal by the
mother that her child is illegitimateis the very declaration that is
proscribed by Article 167 of the Family Code. The language of the law
is unmistakable. An assertion by the mother against the legitimacy of
her child cannot affect the legitimacy of a child born or conceived
within a valid marriage.
Same; Same; Same; For reasons of public decency and morality, a
married woman cannot say that she had no intercourse with her
husband and that her offspring is illegitimate. The proscription is in
consonance with the presumption in favor of family solidarity. It also
promotes the intention of the law to lean toward the legitimacy of the
children.For reasons of public decency and morality, a married
woman cannot say that she had no intercourse with her husband and
that her offspring is illegitimate. The proscription is in consonance
with the presumption in favor of family solidarity. It also promotes the
intention of the law to lean toward the legitimacy of children.
Same; Same; Same; Public policy demands that there be no compromise
on the status and filiation of a child. Otherwise, the child will be at the

97

mercy of those who may be so minded to exploit his defenselessness.

Public policy demands that there be no compromise on the status and
filiation of a child. Otherwise, the child will be at the mercy of those
who may be so minded to exploit his defenselessness. The reliance of
Gerardo on Jose Gerardos birth certificate is misplaced. It has no
evidentiary value in this case because it was not offered in evidence
before the trial court. The rule is that the court shall not consider any
evidence which has not been formally offered.
Same; Same; Same; Proof of filiation is necessary only when the
legitimacy of the child is being questioned, or when the status of a child
born after 300 days following the termination of marriage is sought to
be established.The law itself establishes the status of a child from
the moment of his birth. Although a record of birth or birth certificate
may be used as primary evidence of the filiation of a child, as the
status of a child is determined by the law itself, proof of filiation is
necessary only when the legitimacy of the child is being questioned, or
when the status of a child born after 300 days following the
termination of marriage is sought to be established.
Same; Same; Same; A record of birth is merely prima facie evidence of
the facts contained therein. As prima facie evidence, the statements in
the record of birth may be rebutted by more preponderant evidence. It is
not conclusive evidence with respect to the truthfulness of the
statements made therein by the interested parties.A record of birth is
merely prima facie evidence of the facts contained therein. As prima
facie evidence, the statements in the record of birth may be rebutted
by more preponderant evidence. It is not conclusive evidence with
respect to the truthfulness of the statements made therein by the
interested parties. Between the certificate of birth which is prima facie
evidence of Jose Gerardos illegitimacy and the quasi-conclusive
presumption of law (rebuttable only by proof beyond reasonable
doubt) of his legitimacy, the latter shall prevail. Not only does it bear
more weight, it is also more conducive to the best interests of the
child and in consonance with the purpose of the law.
Same; Same; Same; A persons surname or family name identifies the
family to which he belongs and is passed on from parent to child.As a
legitimate child, Jose Gerardo shall have the right to bear the
surnames of his father Mario and mother Ma. Theresa, in conformity
with the provisions of the Civil Code on surnames. A persons
surname or family name identifies the family to which he belongs and
is passed on from parent to child. Hence, Gerardo cannot impose his
surname on Jose Gerardo who is, in the eyes of the law, not related to
him in any way.

Same; Same; Same; In case of annulment or declaration of absolute

nullity of marriage, Article 49 of the Family Code grants visi-tation
rights to a parent who is deprived of custody of his children.In case of
annulment or declaration of absolute nullity of marriage, Article 49 of
the Family Code grants visitation rights to a parent who is deprived of
custody of his children. Such visitation rights flow from the natural
right of both parent and child to each others company. There being
no such parent-child relationship between them, Gerardo has no
legally demandable right to visit Jose Gerardo.
Same; Same; Same; The State as parens patriae affords special
protection to children from abuse, exploitation and other conditions
prejudicial to their development. It is mandated to provide protection to
those of tender years.The State as parens patriae affords special
protection to children from abuse, exploitation and other conditions
prejudicial to their development. It is mandated to provide protection
to those of tender years. Through its laws, the State safeguards them
from every one, even their own parents, to the end that their eventual
development as responsible citizens and members of society shall not
be impeded, distracted or impaired by family acrimony. This is
especially significant where, as in this case, the issue concerns their
filiation as it strikes at their very identity and lineage.
PETITION for review on certiorari of the resolutions of the Court of
Appeals.
The facts are stated in the opinion of the Court.
Juan Orendain P. Buted for petitioner.
Stephen L. Monsanto for respondents.
CORONA, J.:
The child, by reason of his mental and physical immaturity, needs
special safeguard and care, including appropriate legal protection
before as well as after birth.1 In case of assault on his rights by those
who take advantage of his innocence and vulnerability, the law will
rise in his defense with the single-minded purpose of upholding only
his best interests.
This is the story of petitioner Gerardo B. Concepcion and private
respondent Ma. Theresa Almonte, and a child named Jose Gerardo.
Gerardo and Ma. Theresa were married on December 29, 1989. 2 After

98

their marriage, they lived with Ma. Theresas parents in Fairview,

Quezon City.3 Almost a year later, on December 8, 1990, Ma. Theresa
gave birth to Jose Gerardo. 4
Gerardo and Ma. Theresas relationship turned out to be short-lived,
however. On December 19, 1991, Gerardo filed a petition to have his
marriage to Ma. Theresa annulled on the ground of bigamy.5 He
alleged that nine years before he married Ma. Theresa on December
10, 1980, she had married one Mario Gopiao, which marriage was
never annulled.6 Gerardo also found out that Mario was still alive and
was residing in Loyola Heights, Quezon City.7
Ma. Theresa did not deny marrying Mario when she was twenty years
old. She, however, averred that the marriage was a sham and that she
never lived with Mario at all.8
The trial court ruled that Ma. Theresas marriage to Mario was valid
and subsisting when she married Gerardo and annulled her marriage
to the latter for being bigamous. It declared Jose Gerardo to be an
illegitimate child as a result. The custody of the child was awarded to
Ma. Theresa while Gerardo was granted visitation rights. 9
Ma. Theresa felt betrayed and humiliated when Gerardo had their
marriage annulled. She held him responsible for the bastardization of
Gerardo. She moved for the reconsideration of the above decision
INSOFAR ONLY as that portion of the . . . decision which grant(ed) to
the petitioner so-called visitation rights. . . between the hours of 8 in
the morning to 12:00 p.m. of any Sunday. 10 She argued that there
was nothing in the law granting visitation rights in favor of the
putative father of an illegitimate child.11 She further maintained that
Jose Gerardos surname should be changed from Concepcion to
Almonte, her maiden name, following the rule that an illegitimate
child shall use the mothers surname.
Gerardo opposed the motion. He insisted on his visitation rights and
the retention of Concepcion as Jose Gerardos surname.
Applying the best interest of the child principle, the trial court
denied Ma. Theresas motion and made the following observations:
It is a pity that the parties herein seem to be using their son to get at
or to hurt the other, something they should never do if they want to
assure the normal development and well-being of the boy.

The Court allowed visitorial rights to the father knowing that the
minor needs a father, especially as he is a boy, who must have a
father figure to recognizesomething that the mother alone cannot
give. Moreover, the Court believes that the emotional and
psychological well-being of the boy would be better served if he were
allowed to maintain relationships with his father.
There being no law which compels the Court to act one way or the
other on this matter, the Court invokes the provision of Art. 8, PD 603
as amended, otherwise known as the Child and Youth Welfare Code,
to wit:
In all questions regarding the care, custody, education and property
of the child, his welfare shall be the paramount consideration.
WHEREFORE, the respondents Motion for Reconsideration has to be,
as it is hereby DENIED.12
Ma. Theresa elevated the case to the Court of Appeals, assigning as
error the ruling of the trial court granting visitation rights to Gerardo.
She likewise opposed the continued use of Gerardos surname
(Concepcion) despite the fact that Jose Gerardo had already been
declared illegitimate and should therefore use her surname (Almonte).
The appellate court denied the petition and affirmed in toto the
decision of the trial court.13
On the issue raised by Ma. Theresa that there was nothing in the law
that granted a putative father visitation rights over his illegitimate
child, the appellate court affirmed the best interest of the child
policy invoked by the court a quo. It ruled that [a]t bottom, it (was)
the childs welfare and not the convenience of the parents which (was)
the primary consideration in granting visitation rights a few hours
once a week.14
The appellate court likewise held that an illegitimate child cannot use
the mothers surname motu proprio. The child, represented by the
mother, should file a separate proceeding for a change of name under
Rule 103 of the Rules of Court to effect the correction in the civil
registry.15
Undaunted, Ma. Theresa moved for the reconsideration of the adverse
decision of the appellate court. She also filed a motion to set the case
for oral arguments so that she could better ventilate the issues
involved in the controversy.

99

After hearing the oral arguments of the respective counsels of the

parties, the appellate court resolved the motion for reconsideration. It
reversed its earlier ruling and held that Jose Gerardo was not the son
of Ma. Theresa by Gerardo but by Mario during her first marriage:
It is, therefore, undeniableestablished by the evidence in this
casethat the appellant [Ma. Theresa] was married to Mario Gopiao,
and that she had never entered into a lawful marriage with the
appellee [Gerardo] since the so-called marriage with the latter was
void ab initio. It was [Gerardo] himself who had established these
facts. In other words, [Ma. Theresa] was legitimately married to Mario
Gopiao when the child Jose Gerardo was born on December 8, 1990.
Therefore, the child Jose Gerardounder the lawis the legitimate
child of the legal and subsisting marriage between [Ma. Theresa] and
Mario Gopiao; he cannot be deemed to be the illegitimate child of the
void and non-existent marriage between [Ma. Theresa] and [Gerardo],
but is said by the law to be the child of the legitimate and existing
marriage between [Ma. Theresa] and Mario Gopiao (Art. 164, Family
Code). Consequently, [she] is right in firmly saying that [Gerardo] can
claim neither custody nor visitorial rights over the child Jose Gerardo.
Further, [Gerardo] cannot impose his name upon the child. Not only
is it without legal basis (even supposing the child to be his illegitimate
child [Art. 146, The Family Code]); it would tend to destroy the
existing marriage between [Ma. Theresa] and Gopiao, would prevent
any possible rapproachment between the married couple, and would
mean a judicial seal upon an illegitimate relationship. 16
The appellate court brushed aside the common admission of Gerardo
and Ma. Theresa that Jose Gerardo was their son. It gave little weight
to Jose Gerardos birth certificate showing that he was born a little
less than a year after Gerardo and Ma. Theresa were married:
We are not unaware of the movants argument that various evidence
exist that appellee and the appellant have judicially admitted that the
minor is their natural child. But, in the same vein, We cannot
overlook the fact that Article 167 of the Family Code mandates:
The child shall be considered legitimate although the mother may
have declared against its legitimacy or may have been sentenced as an
adulteress. (italics ours)
Thus, implicit from the above provision is the fact that a minor cannot
be deprived of his/her legitimate status on the bare declaration of the
mother and/or even much less, the supposed father. In fine, the law
and only the law determines who are the legitimate or

illegitimate children for ones legitimacy or illegitimacy cannot

ever be compromised. Not even the birth certificate of the minor can
change his status for the information contained therein are merely
supplied by the mother and/or the supposed father. It should be
what the law says and not what a parent says it is. 17 (Emphasis
supplied)
Shocked and stunned, Gerardo moved for a reconsideration of the
above decision but the same was denied.18 Hence, this appeal.
The status and filiation of a child cannot be compromised. 19 Article
164 of the Family Code is clear. A child who is conceived or born
during the marriage of his parents is legitimate. 20
As a guaranty in favor of the child21 and to protect his status of
legitimacy, Article 167 of the Family Code provides:
Article 167. The child shall be considered legitimate although the
mother may have declared against its legitimacy or may have been
sentenced as an adulteress.
The law requires that every reasonable presumption be made in favor
of legitimacy.22 We explained the rationale of this rule in the recent
case of Cabatania v. Court of Appeals:23
The presumption of legitimacy does not only flow out of a declaration
in the statute but is based on the broad principles of natural justice
and the supposed virtue of the mother. It is grounded on the policy to
protect the innocent offspring from the odium of illegitimacy.
Gerardo invokes Article 166 (1)(b)24 of the Family Code. He cannot. He
has no standing in law to dispute the status of Jose Gerardo. Only
Ma. Theresas husband Mario or, in a proper case, 25 his heirs, who
can contest the legitimacy of the child Jose Gerardo born to his wife. 26
Impugning the legitimacy of a child is a strictly personal right of the
husband or, in exceptional cases, his heirs. 27 Since the marriage of
Gerardo and Ma. Theresa was void from the very beginning, he never
became her husband and thus never acquired any right to impugn the
legitimacy of her child.
The presumption of legitimacy proceeds from the sexual union in
marriage, particularly during the period of conception. 28 To overthrow
this presumption on the basis of Article 166 (1)(b) of the Family Code,
it must be shown beyond reasonable doubt that there was no access

100

that could have enabled the husband to father the child. 29 Sexual
intercourse is to be presumed where personal access is not disproved,
unless such presumption is rebutted by evidence to the contrary. 30
The presumption is quasi-conclusive and may be refuted only by the
evidence of physical impossibility of coitus between husband and wife
within the first 120 days of the 300 days which immediately preceded
the birth of the child.31
To rebut the presumption, the separation between the spouses must
be such as to make marital intimacy impossible.32 This may take
place, for instance, when they reside in different countries or
provinces and they were never together during the period of
conception.33 Or, the husband was in prison during the period of
conception, unless it appears that sexual union took place through
the violation of prison regulations.34
Here, during the period that Gerardo and Ma. Theresa were living
together in Fairview, Quezon City, Mario was living in Loyola Heights
which is also in Quezon City. Fairview and Loyola Heights are only a
scant four kilometers apart.
Not only did both Ma. Theresa and Mario reside in the same city but
also that no evidence at all was presented to disprove personal access
between them. Considering these circumstances, the separation
between Ma. Theresa and her lawful husband, Mario, was certainly
not such as to make it physically impossible for them to engage in the
marital act.
Sexual union between spouses is assumed. Evidence sufficient to
defeat the assumption should be presented by him who asserts the
contrary. There is no such evidence here. Thus, the presumption of
legitimacy in favor of Jose Gerardo, as the issue of the marriage
between Ma. Theresa and Mario, stands.
Gerardo relies on Ma. Theresas statement in her answer 35 to the
petition for annulment of marriage36 that she never lived with Mario.
He claims this was an admission that there was never any sexual
relation between her and Mario, an admission that was binding on
her.
Gerardos argument is without merit.

First, the import of Ma. Theresas statement is that Jose Gerardo is

not her legitimate son with Mario but her illegitimate son with
Gerardo. This declarationan avowal by the mother that her child is
illegitimateis the very declaration that is proscribed by Article 167 of
the Family Code.
The language of the law is unmistakable. An assertion by the mother
against the legitimacy of her child cannot affect the legitimacy of a
child born or conceived within a valid marriage.
Second, even assuming the truth of her statement, it does not mean
that there was never an instance where Ma. Theresa could have been
together with Mario or that there occurred absolutely no intercourse
between them. All she said was that she never lived with Mario. She
never claimed that nothing ever happened between them.
Telling is the fact that both of them were living in Quezon City during
the time material to Jose Gerardos conception and birth. Far from
foreclosing the possibility of marital intimacy, their proximity to each
other only serves to reinforce such possibility. Thus, the impossibility
of physical access was never established beyond reasonable doubt.
Third, to give credence to Ma. Theresas statement is to allow her to
arrogate unto herself a right exclusively lodged in the husband, or in
a proper case, his heirs.37 A mother has no right to disavow a child
because maternity is never uncertain.38 Hence, Ma. Theresa is not
permitted by law to question Jose Gerardos legitimacy.
Finally, for reasons of public decency and morality, a married woman
cannot say that she had no intercourse with her husband and that
her offspring is illegitimate.39 The proscription is in consonance with
the presumption in favor of family solidarity. It also promotes the
intention of the law to lean toward the legitimacy of children. 40
Gerardos insistence that the filiation of Jose Gerardo was never an
issue both in the trial court and in the appellate court does not hold
water. The fact that both Ma. Theresa and Gerardo admitted and
agreed that Jose Gerardo was born to them was immaterial. That was,
in effect, an agreement that the child was illegitimate. If the Court
were to validate that stipulation, then it would be tantamount to
allowing the mother to make a declaration against the legitimacy of
her child and consenting to the denial of filiation of the child by
persons other than her husband. These are the very acts from which
the law seeks to shield the child.

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Public policy demands that there be no compromise on the status and

filiation of a child.41 Otherwise, the child will be at the mercy of those
who may be so minded to exploit his defenselessness.
The reliance of Gerardo on Jose Gerardos birth certificate is
misplaced. It has no evidentiary value in this case because it was not
offered in evidence before the trial court. The rule is that the court
shall not consider any evidence which has not been formally offered. 42
Moreover, the law itself establishes the status of a child from the
moment of his birth.43 Although a record of birth or birth certificate
may be used as primary evidence of the filiation of a child, 44 as the
status of a child is determined by the law itself, proof of filiation is
necessary only when the legitimacy of the child is being questioned, or
when the status of a child born after 300 days following the
termination of marriage is sought to be established.45

legitimate counterpart.49 Moreover (without unwittingly exacerbating

the discrimination against him), in the eyes of society, a bastard is
usually regarded as bearing a stigma or mark of dishonor. Needless to
state, the legitimacy presumptively vested by law upon Jose Gerardo
favors his interest.
It is unfortunate that Jose Gerardo was used as a pawn in the bitter
squabble between the very persons who were passionately declaring
their concern for him. The paradox was
_______________
48

Article 174. Legitimate children shall have the right:

1. (1) To bear the surnames of the father and the mother, in
conformity with the provisions of the Civil Code on Surnames;
2. (2) To receive support from their parents, their ascendants,
and in proper cases, their brothers and sisters, in conformity
with the provisions of this Code on Support; and
3. (3) To be entitled to the legitime and other successional rights
granted to them by the Civil Code.

Here, the status of Jose Gerardo as a legitimate child was not under
attack as it could not be contested collaterally and, even then, only by
the husband or, in extraordinary cases, his heirs. Hence, the
presentation of proof of legitimacy in this case was improper and
uncalled for.
In addition, a record of birth is merely prima facie evidence of the
facts contained therein.46 As prima facie evidence, the statements in
the record of birth may be rebutted by more preponderant evidence. It
is not conclusive evidence with respect to the truthfulness of the
statements made therein by the interested parties.47 Between the
certificate of birth which is prima facie evidence of Jose Gerardos
illegitimacy and the quasi-conclusive presumption of law (rebuttable
only by proof beyond reasonable doubt) of his legitimacy, the latter
shall prevail. Not only does it bear more weight, it is also more
conducive to the best interests of the child and in consonance with
the purpose of the law.
It perplexes us why both Gerardo and Ma. Theresa would doggedly
press for Jose Gerardos illegitimacy while claiming that they both had
the childs interests at heart. The law, reason and common sense
dictate that a legitimate status is more favorable to the child. In the
eyes of the law, the legitimate child enjoys a preferred and superior
status. He is entitled to bear the surnames of both his father and
mother, full support and full inheritance.48 On the other hand, an
illegitimate child is bound to use the surname and be under the
parental authority only of his mother. He can claim support only from
a more limited group and his legitime is only half of that of his

Article 174, Family Code provides:

49

Article 176, Family Code states:

Article 176. Illegitimate children shall use the surname and shall be
under the parental authority of their mother, and shall be entitled to
support in conformity with this Code. The legitime of each illegitimate
child shall consist of one-half of the legitime of a legitimate child.
Except for this modification, all other provisions in the Civil Code
governing successional rights shall remain in force that he was made
to suffer supposedly for his own sake. This madness should end.
This case has been pending for a very long time already. What is
specially tragic is that an innocent child is involved. Jose Gerardo was
barely a year old when these proceedings began. He is now almost
fifteen and all this time he has been a victim of incessant bickering.
The law now comes to his aid to write finis to the controversy which
has unfairly hounded him since his infancy.
Having only his best interests in mind, we uphold the presumption of
his legitimacy.

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As a legitimate child, Jose Gerardo shall have the right to bear the
surnames of his father Mario and mother Ma. Theresa, in conformity
with the provisions of the Civil Code on surnames. 50 A persons
surname or family name identifies the family to which he belongs and
is passed on from parent to child.51 Hence, Gerardo cannot impose his
surname on Jose Gerardo who is, in the eyes of the law, not related to
him in any way.
The matter of changing Jose Gerardos name and effecting the
corrections of the entries in the civil register regarding his paternity
and filiation should be threshed out in a separate proceeding.
In case of annulment or declaration of absolute nullity of marriage,
Article 49 of the Family Code grants visitation rights to a parent who
is deprived of custody of his children. Such visitation rights flow from
the natural right of both parent and child to each others company.
There being no such parent-child relationship between them, Gerardo
has no legally demandable right to visit Jose Gerardo.
Our laws seek to promote the welfare of the child. Article 8 of PD 603,
otherwise known as the Child and Youth Welfare Code, is clear and
unequivocal:

significant where, as in this case, the issue concerns their filiation as

it strikes at their very identity and lineage.
WHEREFORE, the petition is hereby DENIED. The September 14,
1995 and January 10, 1996 resolutions of the Court of Appeals in CAG.R. CV No. 40651 are hereby AFFIRMED.
Costs against petitioner.
SO ORDERED.
Panganiban (Chairman), Sandoval-Gutierrez
concur.

and Gar-cia, JJ.,

Carpio-Morales, J.,No Part.

Petition denied, resolutions affirmed.
Note.Paternity or filiation, or the lack of it, is a relationship that
must be judicially established. (Arbolario vs. Court of Appeals, 401
SCRA 360 [2003])

Article 8. Childs Welfare Paramount.In all questions regarding the

care, custody, education and property of the child, his welfare shall be
the paramount consideration.
Article 3 (1) of the United Nations Convention on the Rights of a Child
of which the Philippines is a signatory is similarly emphatic:
Article 3
1. In all actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be
a primary consideration.
The State as parens patriae affords special protection to children from
abuse, exploitation and other conditions prejudicial to their
development. It is mandated to provide protection to those of tender
years.52 Through its laws, the State safeguards them from every one,
even their own parents, to the end that their eventual development as
responsible citizens and members of society shall not be impeded,
distracted or impaired by family acrimony. This is especially

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G.R. No. 125901. March 8, 2001.*

EDGARDO A. TIJING and BIENVENIDA R. TIJING, petitioners, vs.
COURT OF APPEALS (Seventh Division) and ANGELITA
DIAMANTE, respondents.
Parent and Child; Custody; Habeas Corpus; The writ of habeas corpus
is the proper legal remedy to enable parents to regain the custody of a
minor child even if the latter be in the custody of a third person of his
own free will.The writ of habeas corpus extends to all cases of illegal
confinement or detention by which any person is deprived of his
liberty, or by which the rightful custody of any person is withheld
from the person entitled thereto. Thus, it is the proper legal remedy to
enable parents to regain the custody of a minor child even if the latter
be in the custody of a third person of his own free will. It may even be
said that in custody cases involving minors, the question of illegal and
involuntary restraint of liberty is not the underlying rationale for the
availability of the writ as a remedy. Rather, it is prosecuted for the
purpose of determining the right of custody over a child. It must be
stressed too that in habeas corpus proceedings, the question of
identity is relevant and material, subject to the usual presumptions
including those as to identity of the person.
Same; Same; Same; Petitioners must convincingly establish that the
minor in whose behalf the application for the writ is made is the person
upon whom they have rightful custody, and if there is doubt on the
identity of the minor in whose behalf the application for the writ is
made, petitioners cannot invoke with certainty their right of custody
over the said minor.In this case, the minors identity is crucial in
determining the propriety of the writ sought. Thus, it must be
resolved first whether the Edgardo Tijing, Jr., claimed by Bienvenida
to be her son, is the same minor named John Thomas Lopez, whom
Angelita insists to be her offspring. We must first determine who
between Bienvenida and Angelita is the minors biological mother.
Evidence must necessarily be adduced to prove that two persons,
initially thought of to be distinct and separate from each other, are
indeed one and the same. Petitioners must convincingly establish that
the minor in whose behalf the application for the writ is made is the
person upon whom they have rightful custody. If there is doubt on the
identity of the minor in whose behalf the application for the writ is
made, petitioners cannot invoke with certainty their right of custody
over the said minor.

Appeals; Evidence; Where the conclusions of the Court of Appeals contradict those of the trial court, the Supreme Court may scrutinize the
evidence on the record to determine which findings should be preferred
as more conformable to the evidentiary facts.True, it is not the
function of this Court to examine and evaluate the probative value of
all evidence presented to the concerned tribunal which formed the
basis of its impugned decision, resolution or order. But since the
conclusions of the Court of Appeals contradict those of the trial court,
this Court may scrutinize the evidence on the record to determine
which findings should be preferred as more conformable to the
evidentiary facts.
Parent and Child; Civil Registry; Birth Certificates; Evidence; Under the
law, the attending physician or midwife in attendance at birth should
cause the registration of such birth, and only in default of the physician
or midwife can the parent register the birth of his child; A false entry in
a birth certificate regarding the alleged marriage between the parents of
the child puts to doubt the other data in said birth certificate.We find
unusual the fact that the birth certificate of John Thomas Lopez was
filed by Tomas Lopez instead of the midwife and on August 4, 1989,
four months after the alleged birth of the child. Under the law, the
attending physician or midwife in attendance at birth should cause
the registration of such birth. Only in default of the physician or
midwife, can the parent register the birth of his child. The certificate
must be filed with the local civil registrar within thirty days after the
birth. Significantly, the birth certificate of the child stated Tomas
Lopez and private respondent were legally married on October 31,
1974, in Hagonoy, Bulacan, which is false because even private
respondent had admitted she is a common-law wife. This false entry
puts to doubt the other data in said birth certificate.
Same; Filiation; Evidence; Resemblance between a minor and his
alleged parent is competent and material evidence to establish
parentage.The trial court observed several times that when the child
and Bienvenida were both in court, the two had strong similarities in
their faces, eyes, eyebrows and head shapes. Resemblance between a
minor and his alleged parent is competent and material evidence to
establish parentage. Needless to stress, the trial courts conclusion
should be given high respect, it having had the opportunity to observe
the physical appearances of the minor and petitioner concerned.
Same; Same; Same; DNA (Deoxyribonucleic Acid) Test; Parentage will
still be resolved using conventional methods unless we adopt the
modern and scientific ways available; Being a novel scientific
technique, the use of DNA test as evidence is still open to challenge, but

104

eventually, as the appropriate case comes, courts should not hesitate to

rule on the admissibility of DNA evidence; Courts should apply the
results of science when competently obtained in aid of situations
presented, since to reject said result is to deny progress.A final note.
Parentage will still be resolved using conventional methods unless we
adopt the modern and scientific ways available. Fortunately, we have
now the facility and expertise in using DNA test for identification and
parentage testing. The University of the Philippines Natural Science
Research Institute (UP-NSRI) DNA Analysis Laboratory has now the
capability to conduct DNA typing using short tandem repeat (STR)
analysis. The analysis is based on the fact that the DNA of a
child/person has two (2) copies, one copy from the mother and the
other from the father. The DNA from the mother, the alleged father
and child are analyzed to establish parentage. Of course, being a
novel scientific technique, the use of DNA test as evidence is still open
to challenge. Eventually, as the appropriate case comes, courts
should not hesitate to rule on the admissibility of DNA evidence. For it
was said, that courts should apply the results of science when
competently obtained in aid of situations presented, since to reject
said result is to deny progress. Though it is not necessary in this case
to resort to DNA testing, in future it would be useful to all concerned
in the prompt resolution of parentage and identity issues.

Petitioners are husband and wife. They have six children. The
youngest is Edgardo Tijing, Jr., who was born on April 27, 1989, at
the clinic of midwife and registered nurse Lourdes Vasquez in Sta.
Ana, Manila. Petitioner Bienvenida served as the laundrywoman of
private respondent Angelita Diamante, then a resident of Tondo,
Manila.

Same; Same; Same; Same; Words and Phrases; DNA and DNA
Testing, Explained.DNA (deoxyribonucleic acid) refers to the chain
of molecules found in every cell of the body, except in red blood cells,
which transmit hereditary characteristics among individuals. DNA
testing is synonymous to DNA typing, DNA fingerprinting, DNA
profiling, genetic testing or genetic fingerprinting.

Although estranged from her husband, Bienvenida could not imagine

how her spouse would react to the disappearance of their youngest
child and this made her problem even more serious. As fate would
have it, Bienvenida and her husband reconciled and together, this
time, they looked for their missing son in other places.
Notwithstanding their serious efforts, they saw no traces of his
whereabouts.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Emerico B. Lomibao for petitioners.
Tagle-Chua, Cruz & Aquino for private respondent.
QUISUMBING, J.:
For review is the decision of the Court of Appeals dated March 6,
1996, in CA-G.R. SP No. 39056, reversing the decision of the Regional
Trial Court in a petition for habeas corpus of Edgardo Tijing, Jr.,
allegedly the child of petitioners.

According to Bienvenida in August 1989, Angelita went to her house

to fetch her for an urgent laundry job. Since Bienvenida was on her
way to do some marketing, she asked Angelita to wait until she
returned. She also left her four-month old son, Edgardo, Jr., under
the care of Angelita as she usually let Angelita take care of the child
while Bienvenida was doing laundry.
When Bienvenida returned from the market, Angelita and Edgardo,
Jr., were gone. Bienvenida forthwith proceeded to Angelitas house in
Tondo, Manila, but did not find them there. Angelitas maid told
Bienvenida that her employer went out for a stroll and told
Bienvenida to come back later. She returned to Angelitas house after
three days, only to discover that Angelita had moved to another place.
Bienvenida then complained to her barangay chairman and also to
the police who seemed unmoved by her pleas for assistance.

Four years later or in October 1993, Bienvenida read in a tabloid

about the death of Tomas Lopez, allegedly the common-law husband
of Angelita, and whose remains were lying in state in Hagonoy,
Bulacan. Bienvenida lost no time in going to Hagonoy, Bulacan, where
she allegedly saw her son Edgardo, Jr., for the first time after four
years. She claims that the boy, who was pointed out to her by
Benjamin Lopez, a brother of the late Tomas Lopez, was already
named John Thomas Lopez.1 She avers that Angelita refused to return
to her the boy despite her demand to do so.
Bienvenida and Edgardo filed their petition for habeas corpus with the
trial court in order to recover their son. To substantiate their petition,
petitioners presented two witnesses, namely, Lourdes Vasquez and
Benjamin Lopez. The first witness, Vasquez, testified that she assisted

105

in the delivery of one Edgardo Tijing, Jr. on April 27, 1989 at her
clinic in Sta. Ana, Manila. She supported her testimony with her
clinical records.2 The second witness, Benjamin Lopez, declared that
his brother, the late Tomas Lopez, could not have possibly fathered
John Thomas Lopez as the latter was sterile. He recalled that Tomas
met an accident and bumped his private part against the edge of a
banca causing him excruciating pain and eventual loss of his childbearing capacity. Benjamin further declared that Tomas admitted to
him that John Thomas Lopez was only an adopted son and that he
and Angelita were not blessed with children.3

Angelita peacefully surrendered the minor and he turned over the

custody of said child to petitioner Edgardo Tijing. 8

For her part, Angelita claimed that she is the natural mother of the
child. She asserts that at age 42, she gave birth to John Thomas
Lopez on April 27, 1989, at the clinic of midwife Zosima Panganiban
in Singalong, Manila. She added, though, that she has two other
children with her real husband, Angel Sanchez.4 She said the birth of
John Thomas was registered by her common-law husband, Tomas
Lopez, with the local civil registrar of Manila on August 4, 1989.

IN VIEW OF THE FOREGOING, the decision of the lower court dated

March 10, 1995 is hereby REVERSED, and a new one entered
dismissing the petition in Spec. Proc. No. 94-71606, and directing the
custody of the minor John Thomas Lopez to be returned to
respondent Angelita Diamante, said minor having been under the care
of said respondent at the time of the filing of the petition herein.

On March 10, 1995, the trial court concluded that since Angelita and
her common-law husband could not have children, the alleged birth
of John Thomas Lopez is an impossibility.5 The trial court also held
that the minor and Bienvenida showed strong facial similarity.
Accordingly, it ruled that Edgardo Tijing, Jr., and John Thomas Lopez
are one and the same person who is the natural child of petitioners.
The trial court decreed:
WHEREFORE, PREMISES CONSIDERED, judgment is hereby
rendered GRANTING the petition for Habeas Corpus, as such,
respondent Angelita Diamante is ordered to immediately release from
her personal custody minor John Thomas D. Lopez, and turn him
over and/or surrender his person to petitioners, Spouses Edgardo A.
Tijing and Bienvenida R. Tijing, immediately upon receipt hereof.
Branch Sheriff of this Court, Carlos Bajar, is hereby commanded to
implement the decision of this Court by assisting herein petitioners in
the recovery of the person of their minor son, Edgardo Tijing, Jr., the
same person as John Thomas D. Lopez.
SO ORDERED.6
Angelita seasonably filed her notice of appeal. 7 Nonetheless, on
August 3, 1994, the sheriff implemented the order of the trial court by
taking custody of the minor. In his report, the sheriff stated that

On appeal, the Court of Appeals reversed and set aside the decision
rendered by the trial court. The appellate court expressed its doubts
on the propriety of the habeas corpus. In its view, the evidence
adduced by Bienvenida was not sufficient to establish that she was
the mother of the minor. It ruled that the lower court erred in
declaring that Edgardo Tijing, Jr., and John Thomas Lopez are one
and the same person,9 and disposed of the case, thus:

SO ORDERED.10
Petitioners sought reconsideration of the abovequoted decision which
was denied. Hence, the instant petition alleging:
I
THAT THE RESPONDENT COURT OF APPEALS COMMITTED A
GRAVE ERROR WHEN IT DECLARED THAT THE PETITIONERS
ACTION FOR HABEAS CORPUS IS MERELY SECONDARY TO THE
QUESTION OF FILIATION THAT THE PETITIONERS HAD LIKEWISE
PROVEN.
II
THAT THE RESPONDENT COURT OF APPEALS ERRED IN
REVERSING THE DECISION OF THE REGIONAL TRIAL COURT
DISMISSING THE PETITION FOR HABEAS CORPUS AND
DIRECTING THAT THE CUSTODY OF THE MINOR JOHN THOMAS
LOPEZ WHO WAS PROVEN TO THE SAME MINOR AS EDGARDO R.
TIJING, JR., BE RETURNED TO THE PRIVATE RESPONDENT. 11
In our view, the crucial issues for resolution are the following:
1. (1) Whether or not habeas corpus is the proper remedy?

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2. (2) Whether or not Edgardo Tijing, Jr., and John Thomas

Lopez are one and the same person and is the son of
petitioners?

A close scrutiny of the records of this case reveals that the evidence
presented by Bienvenida is sufficient to establish that John Thomas
Lopez is actually her missing son, Edgardo Tijing, Jr.

We shall discuss the two issues together since they are closely related.

First, there is evidence that Angelita could no longer bear children.

From her very lips, she admitted that after the birth of her second
child, she underwent ligation at the Martinez Hospital in 1970, before
she lived with Tomas Lopez without the benefit of marriage in 1974.
Assuming she had that ligation removed in 1978, as she claimed, she
offered no evidence she gave birth to a child between 1978 to 1988 or
for a period often years. The midwife who allegedly delivered the child
was not presented in court. No clinical records, log book or discharge
order from the clinic were ever submitted.

The writ of habeas corpus extends to all cases of illegal confinement or

detention by which any person is deprived of his liberty, or by which
the rightful custody of any person is withheld from the person entitled
thereto.12 Thus, it is the proper legal remedy to enable parents to
regain the custody of a minor child even if the latter be in the custody
of a third person of his own free will. It may even be said that in
custody cases involving minors, the question of illegal and involuntary
restraint of liberty is not the underlying rationale for the availability of
the writ as a remedy. Rather, it is prosecuted for the purpose of
determining the right of custody over a child.13 It must be stressed too
that in habeas corpus proceedings, the question of identity is relevant
and material, subject to the usual presumptions including those as to
identity of the person.
In this case, the minors identity is crucial in determining the
propriety of the writ sought. Thus, it must be resolved first whether
the Edgardo Tijing, Jr., claimed by Bienvenida to be her son, is the
same minor named John Thomas Lopez, whom Angelita insists to be
her offspring. We must first determine who between Bienvenida and
Angelita is the minors biological mother. Evidence must necessarily
be adduced to prove that two persons, initially thought of to be
distinct and separate from each other, are indeed one and the same. 14
Petitioners must convincingly establish that the minor in whose
behalf the application for the writ is made is the person upon whom
they have rightful custody. If there is doubt on the identity of the
minor in whose behalf the application for the writ is made, petitioners
cannot invoke with certainty their right of custody over the said
minor.
True, it is not the function of this Court to examine and evaluate the
probative value of all evidence presented to the concerned tribunal
which formed the basis of its impugned decision, resolution or
order.15 But since the conclusions of the Court of Appeals contradict
those of the trial court, this Court may scrutinize the evidence on the
record to determine which findings should be preferred as more
conformable to the evidentiary facts.

Second, there is strong evidence which directly proves that Tomas

Lopez is no longer capable of siring a son. Benjamin Lopez declared in
court that his brother, Tomas, was sterile because of the accident and
that Tomas admitted to him that John Thomas Lopez was only an
adopted son. Moreover, Tomas Lopez and his legal wife, Maria
Rapatan Lopez, had no children after almost fifteen years together.
Though Tomas Lopez had lived with private respondent for fourteen
years, they also bore no offspring.
Third, we find unusual the fact that the birth certificate of John
Thomas Lopez was filed by Tomas Lopez instead of the midwife and on
August 4, 1989, four months after the alleged birth of the child.
Under the law, the attending physician or midwife in attendance at
birth should cause the registration of such birth. Only in default of
the physician or midwife, can the parent register the birth of his child.
The certificate must be filed with the local civil registrar within thirty
days after the birth.16 Significantly, the birth certificate of the child
stated Tomas Lopez and private respondent were legally married on
October 31, 1974, in Hagonoy, Bulacan, which is false because even
private respondent had admitted she is a common-law wife.17 This
false entry puts to doubt the other data in said birth certificate.
Fourth, the trial court observed several times that when the child and
Bienvenida were both in court, the two had strong similarities in their
faces, eyes, eyebrows and head shapes. Resemblance between a minor
and his alleged parent is competent and material evidence to establish
parentage.18 Needless to stress, the trial courts conclusion should be
given high respect, it having had the opportunity to observe the
physical appearances of the minor and petitioner concerned.

107

Fifth, Lourdes Vasquez testified that she assisted in Bienvenidas

giving birth to Edgardo Tijing, Jr., at her clinic. Unlike private
respondent, she presented clinical records consisting of a log book,
discharge order and the signatures of petitioners.
All these considered, we are constrained to rule that subject minor is
indeed the son of petitioners. The writ of habeas corpus is proper to
regain custody of said child.

be resolved by conventional evidence. (Pe Lim vs. Court of Appeals,

270 SCRA 1 [1997])
An eyewitness identification, which authors not infrequently would
describe to be inherently suspect, is not as accurate and
authoritative as the scientific forms of identification evidence like by
fingerprint or by DNA testing. (People vs. Faustino, 339 SCRA 718
[2000])

A final note. Parentage will still be resolved using conventional

methods unless we adopt the modern and scientific ways available.
Fortunately, we have now the facility and expertise in using DNA
test19 for identification and parentage testing. The University of the
Philippines Natural Science Research Institute (UP-NSRI) DNA
Analysis Laboratory has now the capability to conduct DNA typing
using short tandem repeat (STR) analysis. The analysis is based on
the fact that the DNA of a child/person has two (2) copies, one copy
from the mother and the other from the father. The DNA from the
mother, the alleged father and child are analyzed to establish
parentage.20 Of course, being a novel scientific technique, the use of
DNA test as evidence is still open to challenge. 21 Eventually, as the
appropriate case comes, courts should not hesitate to rule on the
admissibility of DNA evidence. For it was said, that courts should
apply the results of science when competently obtained in aid of
situations presented, since to reject said result is to deny progress. 22
Though it is not necessary in this case to resort to DNA testing, in
future it would be useful to all concerned in the prompt resolution of
parentage and identity issues.
WHEREFORE, the instant petition is GRANTED. The assailed
DECISION of the Court of Appeals is REVERSED and decision of the
Regional Trial Court is REINSTATED. Costs against the private
respondent.
SO ORDERED.
Bellosillo (Chairman), Mendoza, Buena and De Leon, Jr., JJ.,
concur.
Petition granted, judgment reversed. That of the trial court reinstated.
Notes.DNA, being a relatively new science, has not yet been
accorded official recognition by the courtspaternity will still have to

108

G.R. No. 162571. June 15, 2005.*

ARNEL L. AGUSTIN, petitioner, vs. HON. COURT OF APPEALS
AND MINOR MARTIN JOSE PROLLAMANTE, REPRESENTED BY
HIS
MOTHER/GUARDIAN
FE
ANGELA
PROLLAMANTE,
respondents.
Actions; Pleadings and Practice; Recognition; That the two causes of
action, one to compel recognition and the other to claim inheritance,
may be joined in one complaint is not new in our jurisprudence.That
the two causes of action, one to compel recognition and the other to
claim inheritance, may be joined in one complaint is not new in our
jurisprudence. As early as [1922] we had occasion to rule thereon in
Briz vs. Briz, et al. (43 Phil. 763 [1922]) wherein we said: The question
whether a person in the position of the present plaintiff can in any
event maintain a complex action to compel recognition as a natural
child and at the same time to obtain ulterior relief in the character of
heir, is one which in the opinion of this court must be answered in
the affirmative, provided always that the conditions justifying the
joinder of the two distinct causes of action are present in the
particular case. In other words, there is no absolute necessity
requiring that the action to compel acknowledgment should have been
instituted and prosecuted to a successful conclusion prior to the
action in which that same plaintiff seeks additional relief in the
character of heir. Certainly, there is nothing so peculiar to the action
to compel acknowledgment as to require that a rule should be here
applied different from that generally applicable in other cases. x x x
The conclusion above stated, though not heretofore explicitly
formulated by this court, is undoubtedly to some extent supported by
our prior decisions. Thus, we have held in numerous cases, and the
doctrine must be considered well settled, that a natural child having a
right to compel acknowledgment, but who has not been in fact legally
acknowledged, may maintain partition proceedings for the division of
the inheritance against his coheirs x x x; and the same person may
intervene in proceedings for the distribution of the estate of his
deceased natural father, or mother x x x. In neither of these situations
has it been thought necessary for the plaintiff to show a prior decree
compelling acknowledgment. The obvious reason is that in partition
suits and distribution proceedings the other persons who might take
by inheritance are before the court; and the declaration of heirship is
appropriate to such proceedings.

Civil Law; Family Code; Filiation; Paternity; DNA Testing; Parentage

will still be resolved using conventional methods unless we adopt the
modern and scientific ways available; fortunately, we have now the
facility and expertise in using DNA test for identification and parentage
testing.Parentage will still be resolved using conventional methods
unless we adopt the modern and scientific ways available.
Fortunately, we have now the facility and expertise in using DNA test
for identification and parentage testing. The University of the
Philippines Natural Science Research Institute (UP-NSRI) DNA
Analysis Laboratory has now the capability to conduct DNA typing
using short tandem repeat (STR) analysis. The analysis is based on
the fact that the DNA of a child/person has two (2) copies, one copy
from the mother and the other from the father. The DNA from the
mother, the alleged father and child are analyzed to establish
parentage. Of course, being a novel scientific technique, the use of
DNA test as evidence is still open to challenge. Eventually, as the
appropriate case comes, courts should not hesitate to rule on the
admissibility of DNA evidence. For it was said, that courts should
apply the results of science when competently obtained in aid of
situations presented, since to reject said result is to deny progress.
Actions; Pleadings and Practice; Appeals; Certiorari; Grave Abuse of
Discretion; Where the power is exercised in an arbitrary manner by
reason of passion, prejudice, or personal hostility, and it must be so
patent or gross as to amount to an evasion of a positive duty or to a
virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.Grave abuse of discretion implies such
capricious and whimsical exercise of judgment as is equivalent to lack
of jurisdiction or, in other words, where the power is exercised in
an arbitrary manner by reason of passion, prejudice, or personal
hostility, and it must be so patent or gross as to amount to an
evasion of a positive duty or to a virtual refusal to perform the
duty enjoined or to act at all in contemplation of law. The special
civil action for certiorari is a remedy designed for the correction of
errors of jurisdiction and not errors of judgment. The raison detre for
the rule is when a court exercises its jurisdiction, an error committed
while so engaged does not deprive it of the jurisdiction being exercised
when the error is committed. If it did, every error committed by a
court would deprive it of its jurisdiction and every erroneous
judgment would be a void judgment. In such a scenario, the
administration of justice would not survive. Hence, where the issue or
question involved affects the wisdom or legal soundness of the
decisionnot the jurisdiction of the court to render said decisionthe
same is beyond the province of a special civil action for certiorari. The
proper recourse of the aggrieved party from a decision of the CA is a

109

petition for review on certiorari under Rule 45 of the Revised Rules of

Court. On the other hand, if the error subject of the recourse is one of
jurisdiction, or the act complained of was perpetrated by a quasijudicial officer or agency with grave abuse of discretion amounting to
lack or excess of jurisdiction, the proper remedy available to the
aggrieved party is a petition for certiorari under Rule 65 of the said
Rules.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.
The facts are stated in the opinion of the Court.
Ciriaco A. Macapagal for petitioner.
Alexander Bansil for respondent.
CORONA, J.:
At issue in this petition for certiorari1 is whether or not the Court of
Appeals (CA) gravely erred in exercising its discretion, amounting to
lack or excess of jurisdiction, in issuing a decision 2 and resolution3
upholding the resolution and order of the trial court,4 which denied
petitioners motion to dismiss private respondents complaint for
support and directed the parties to submit themselves to
deoxyribonucleic acid (DNA) paternity testing.
Respondents Fe Angela and her son Martin Prollamante sued Martins
alleged biological father, petitioner Arnel L. Agustin, for support and
support pendente lite before the Regional Trial Court (RTC) of Quezon
City, Branch 106.5
In their complaint, respondents alleged that Arnel courted Fe in 1992,
after which they entered into an intimate relationship. Arnel
supposedly impregnated Fe on her 34th birthday on November 10,
1999. Despite Arnels insistence on abortion, Fe decided otherwise
and gave birth to their child out of wedlock, Martin, on August 11,
2000 at the Capitol Medical Hospital in Quezon City. The babys birth
certificate was purportedly signed by Arnel as the father. Arnel
shouldered the pre-natal and hospital expenses but later refused Fes
repeated requests for Martins support despite his adequate financial
capacity and even suggested to have the child committed for adoption.
Arnel also denied having fathered the child.

On January 19, 2001, while Fe was carrying five-month old Martin at

the Capitol Hills Golf and Country Club parking lot, Arnel sped off in
his van, with the open car door hitting Fes leg. This incident was
reported to the police. In July 2001, Fe was diagnosed with leukemia
and has, since then, been undergoing chemotherapy. On March 5,
2002, Fe and Martin sued Arnel for support.6
In his amended answer, Arnel denied having sired Martin because his
affair and intimacy with Fe had allegedly ended in 1998, long before
Martins conception. He claimed that Fe had at least one other secret
lover. Arnel admitted that their relationship started in 1993 but he
never really fell in love with (Fe) not only because (she) had at least
one secret lover, a certain Jun, but also because she proved to be
scheming and overly demanding and possessive. As a result, theirs
was a stormy on-and-off affair. What started as a romantic liaison
between two consenting adults eventually turned out to be a case of
fatal attraction where (Fe) became so obsessed with (Arnel), to the
point of even entertaining the idea of marrying him, that she resorted
to various devious ways and means to alienate (him) from his wife and
family . . . . Unable to bear the prospect of losing his wife and
children, Arnel terminated the affair although he still treated her as a
friend such as by referring potential customers to the car aircon
repair shop7 where she worked. Later on, Arnel found out that Fe
had another erstwhile secret lover. In May 2000, Arnel and his entire
family went to the United States for a vacation. Upon their return in
June 2000, Arnel learned that Fe was telling people that he had
impregnated her. Arnel refused to acknowledge the child as his
because their last intimacy was sometime in 1998. 8 Exasperated, Fe
started calling Arnels wife and family. On January 19, 2001, Fe
followed Arnel to the Capitol Hills Golf and Country Club parking lot
to demand that he acknowledge Martin as his child. According to
Arnel, he could not get through Fe and the discussion became so
heated that he had no alternative but to move on but without
bumping or hitting any part of her body.9 Finally, Arnel claimed that
the signature and the community tax certificate (CTC) attributed to
him in the acknowledgment of Martins birth certificate were falsified.
The CTC erroneously reflected his marital status as single when he
was actually married and that his birth year was 1965 when it should
have been 1964.10
In his pre-trial brief filed on May 17, 2002, Arnel vehemently denied
having sired Martin but expressed willingness to consider any
proposal to settle the case.11

110

On July 23, 2002, Fe and Martin moved for the issuance of an order
directing all the parties to submit themselves to DNA paternity testing
pursuant to Rule 28 of the Rules of Court.12
Arnel opposed said motion by invoking his constitutional right against
self-incrimination.13 He also moved to dismiss the complaint for lack
of cause of action, considering that his signature on the birth
certificate was a forgery and that, under the law, an illegitimate child
is not entitled to support if not recognized by the putative father. 14 In
his motion, Arnel manifested that he had filed criminal charges for
falsification of documents against Fe (I.S. Nos. 02-5723 and 02-7192)
and a petition for cancellation of his name appearing in Martins birth
certificate (docketed as Civil Case No. Q-02-46669). He attached the
certification of the Philippine National Police Crime Laboratory that
his signature in the birth certificate was forged.
The trial court denied the motion to dismiss the complaint and
ordered the parties to submit themselves to DNA paternity testing at
the expense of the applicants. The Court of Appeals affirmed the trial
court.

that he had ended the relationship long before the childs conception
and birth. It is undisputed and even admitted by the parties that
there existed a sexual relationship between Arnel and Fe. The only
remaining question is whether such sexual relationship produced the
child, Martin. If it did, as respondents have alleged, then Martin
should be supported by his father Arnel. If not, petitioner and Martin
are strangers to each other and Martin has no right to demand and
petitioner has no obligation to give support.
Preliminaries aside, we now tackle the main issues.
Petitioner refuses to recognize Martin as his own child and denies the
genuineness and authenticity of the childs birth certificate which he
purportedly signed as the father. He also claims that the order and
resolution of the trial court, as affirmed by the Court of Appeals,
effectively converted the complaint for support to a petition for
recognition, which is supposedly proscribed by law. According to
petitioner, Martin, as an unrecognized child, has no right to ask for
support and must first establish his filiation in a separate suit under
Article 28317 in relation to Article 26518 of the Civil Code and Section
1, Rule 10519 of the Rules of Court.

Thus, this petition.

The petitioners contentions are without merit.
In a nutshell, petitioner raises two issues: (1) whether a complaint for
support can be converted to a petition for recognition and (2) whether
DNA paternity testing can be ordered in a proceeding for support
without violating petitioners constitutional right to privacy and right
against self-incrimination.15
The petition is without merit.
First of all, the trial court properly denied the petitioners motion to
dismiss because the private respondents complaint on its face
showed that they had a cause of action against the petitioner. The
elements of a cause of action are: (1) the plaintiffs primary right and
the defendants corresponding primary duty, and (2) the delict or
wrongful act or omission of the defendant, by which the primary right
and duty have been violated. The cause of action is determined not by
the prayer of the complaint but by the facts alleged. 16
In the complaint, private respondents alleged that Fe had amorous
relations with the petitioner, as a result of which she gave birth to
Martin out of wedlock. In his answer, petitioner admitted that he had
sexual relations with Fe but denied that he fathered Martin, claiming

The assailed resolution and order did not convert the action for
support into one for recognition but merely allowed the respondents
to prove their cause of action against petitioner who had been denying
the authenticity of the documentary evidence of acknowledgement.
But even if the assailed resolution and order effectively integrated an
action to compel recognition with an action for support, such was
valid and in accordance with jurisprudence. In Tayag v. Court of
Appeals,20 we allowed the integration of an action to compel
recognition with an action to claim ones inheritance:
. . . In Paulino, we held that an illegitimate child, to be entitled to
support and successional rights from the putative or presumed
parent, must prove his filiation to the latter. We also said that it is
necessary to allege in the complaint that the putative father had
acknowledged and recognized the illegitimate child because such
acknowledgment is essential to and is the basis of the right to inherit.
There being no allegation of such acknowledgment, the action
becomes one to compel recognition which cannot be brought after the
death of the putative father. The ratio decidendi in Paulino, therefore,
is not the absence of a cause of action for failure of the petitioner to

111

allege the fact of acknowledgment in the complaint, but the

prescription of the action.

declaration of heirship
(Underscoring supplied)

Applying the foregoing principles to the case at bar, although

petitioner contends that the complaint filed by herein private
respondent merely alleges that the minor Chad Cuyugan is an
illegitimate child of the deceased and is actually a claim for
inheritance, from the allegations therein the same may be considered
as one to compel recognition. Further, that the two causes of
action, one to compel recognition and the other to claim
inheritance, may be joined in one complaint is not new in our
jurisprudence.

Although the instant case deals with support rather than inheritance,
as in Tayag, the basis or rationale for integrating them remains the
same. Whether or not respondent Martin is entitled to support
depends completely on the determination of filiation. A separate
action will only result in a multiplicity of suits, given how intimately
related the main issues in both cases are. To paraphrase Tayag, the
declaration of filiation is entirely appropriate to these proceedings.

As early as [1922] we had occasion to rule thereon in Briz vs. Briz, et

al. (43 Phil. 763 [1922]) wherein we said:
The question whether a person in the position of the present plaintiff
can in any event maintain a complex action to compel recognition as a
natural child and at the same time to obtain ulterior relief in the
character of heir, is one which in the opinion of this court must be
answered in the affirmative, provided always that the conditions
justifying the joinder of the two distinct causes of action are present
in the particular case. In other words, there is no absolute
necessity requiring that the action to compel acknowledgment
should have been instituted and prosecuted to a successful
conclusion prior to the action in which that same plaintiff seeks
additional relief in the character of heir. Certainly, there is nothing
so peculiar to the action to compel acknowledgment as to require that
a rule should be here applied different from that generally applicable
in other cases. x x x
The conclusion above stated, though not heretofore explicitly
formulated by this court, is undoubtedly to some extent supported by
our prior decisions. Thus, we have held in numerous cases, and the
doctrine must be considered well settled, that a natural child
having a right to compel acknowledgment, but who has not been
in fact legally acknowledged, may maintain partition proceedings
for the division of the inheritance against his coheirs x x x; and
the same person may intervene in proceedings for the distribution of
the estate of his deceased natural father, or mother x x x. In neither of
these situations has it been thought necessary for the plaintiff to
show a prior decree compelling acknowledgment. The obvious reason
is that in partition suits and distribution proceedings the other
persons who might take by inheritance are before the court; and the

is

appropriate

to

such

proceedings.

On the second issue, petitioner posits that DNA is not recognized by

this Court as a conclusive means of proving paternity. He also
contends that compulsory testing violates his right to privacy and
right against self-incrimination as guaranteed under the 1987
Constitution. These contentions have no merit.
Given that this is the very first time that the admissibility of DNA
testing as a means for determining paternity has actually been the
focal issue in a controversy, a brief historical sketch of our past
decisions featuring or mentioning DNA testing is called for.
In the 1995 case of People v. Teehankee21 where the appellant was
convicted of murder on the testimony of three eyewitnesses, we stated
as an obiter dictum that while eyewitness identification is significant,
it is not as accurate and authoritative as the scientific forms of
identification evidence such as the fingerprint or the DNA test result
(emphasis supplied).
Our faith in DNA testing, however, was not quite so steadfast in the
previous decade. In Pe Lim v. Court of Appeals,22 promulgated in 1997,
we cautioned against the use of DNA because DNA, being a relatively
new science, (had) not as yet been accorded official recognition by our
courts. Paternity (would) still have to be resolved by such
conventional evidence as the relevant incriminating acts, verbal and
written, by the putative father.
In 2001, however, we opened the possibility of admitting DNA as
evidence of parentage, as enunciated in Tijing v. Court of Appeals:23
A final note. Parentage will still be resolved using conventional
methods unless we adopt the modern and scientific ways available.
Fortunately, we have now the facility and expertise in using DNA test
for identification and parentage testing. The University of the

112

Philippines Natural Science Research Institute (UP-NSRI) DNA

Analysis Laboratory has now the capability to conduct DNA typing
using short tandem repeat (STR) analysis. The analysis is based on
the fact that the DNA of a child/person has two (2) copies, one copy
from the mother and the other from the father. The DNA from the
mother, the alleged father and child are analyzed to establish
parentage. Of course, being a novel scientific technique, the use of
DNA test as evidence is still open to challenge. Eventually, as the
appropriate case comes, courts should not hesitate to rule on the
admissibility of DNA evidence. For it was said, that courts should
apply the results of science when competently obtained in aid of
situations presented, since to reject said result is to deny progress.
The first real breakthrough of DNA as admissible and authoritative
evidence in Philippine jurisprudence came in 2002 with our en banc
decision in People v. Vallejo24 where the rape and murder victims DNA
samples from the bloodstained clothes of the accused were admitted
in evidence. We reasoned that the purpose of DNA testing (was) to
ascertain whether an association exist(ed) between the evidence
sample and the reference sample. The samples collected (were)
subjected to various chemical processes to establish their profile.
A year later, in People v. Janson,25 we acquitted the accused charged
with rape for lack of evidence because doubts persist(ed) in our mind
as to who (were) the real malefactors. Yes, a complex offense (had)
been perpetrated but who (were) the perpetrators? How we wish we
had DNA or other scientific evidence to still our doubts!
In 2004, in Tecson, et al. v. COMELEC26 where the Court en banc was
faced with the issue of filiation of then presidential candidate
Fernando Poe, Jr., we stated:
In case proof of filiation or paternity would be unlikely to satisfactorily
establish or would be difficult to obtain, DNA testing, which examines
genetic codes obtained from body cells of the illegitimate child and
any physical residue of the long dead parent could be resorted to. A
positive match would clear up filiation or paternity. In Tijing vs. Court
of Appeals, this Court has acknowledged the strong weight of DNA
testing. . .
Moreover, in our en banc decision in People v. Yatar,27 we affirmed the
conviction of the accused for rape with homicide, the principal
evidence for which included DNA test results. We did a lengthy
discussion of DNA, the process of DNA testing and the reasons for its
admissibility in the context of our own Rules of Evidence:

Deoxyribonucleic Acid, or DNA, is a molecule that encodes the genetic

information in all living organisms. A persons DNA is the same in
each cell and it does not change throughout a persons lifetime; the
DNA in a persons blood is the same as the DNA found in his saliva,
sweat, bone, the root and shaft of hair, earwax, mucus, urine, skin
tissue, and vaginal and rectal cells. Most importantly, because of
polymorphisms in human genetic structure, no two individuals have
the same DNA, with the notable exception of identical twins.
xxx

xxx

xxx

In assessing the probative value of DNA evidence, courts should

consider, inter alia, the following factors: how the samples were
collected, how they were handled, the possibility of contamination of
the samples, the procedure followed in analyzing the samples,
whether proper standards and procedures were followed in
conducting the tests, and the qualification of the analyst who
conducted the tests.
In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly
qualified by the prosecution as an expert witness on DNA print or
identification techniques. Based on Dr. de Ungrias testimony, it was
determined that the gene type and DNA profile of appellant are
identical to that of the extracts subject of examination. The blood
sample taken from the appellant showed that he was of the following
gene types: vWA 15/19, TH01 7/8, DHFRP29/10 and CSF1PO 10/11,
which are identical with semen taken from the victims vaginal canal.
Verily, a DNA match exists between the semen found in the victim
and the blood sample given by the appellant in open court during the
course of the trial.
Admittedly, we are just beginning to integrate these advances in
science and technology in the Philippine criminal justice system, so
we must be cautious as we traverse these relatively uncharted waters.
Fortunately, we can benefit from the wealth of persuasive
jurisprudence that has developed in other jurisdictions. Specifically,
the prevailing doctrine in the U.S. has proven instructive.
In Daubert v. Merrell Dow (509 U.S. 579 [1993]; 125 L. Ed. 2d 469) it
was ruled that pertinent evidence based on scientifically valid
principles could be used as long as it was relevant and reliable.
Judges, under Daubert, were allowed greater discretion over which
testimony they would allow at trial, including the introduction of new
kinds of scientific techniques. DNA typing is one such novel
procedure.

113

Under Philippine law, evidence is relevant when it relates directly to a

fact in issue as to induce belief in its existence or nonexistence.
Applying the Daubert test to the case at bar, the DNA evidence
obtained through PCR testing and utilizing STR analysis, and which
was appreciated by the court a quo is relevant and reliable since it is
reasonably based on scientifically valid principles of human genetics
and molecular biology.
Significantly, we upheld the constitutionality of compulsory DNA
testing and the admissibility of the results thereof as evidence. In that
case, DNA samples from semen recovered from a rape victims vagina
were used to positively identify the accused Joel Kawit Yatar as the
rapist. Yatar claimed that the compulsory extraction of his blood
sample for DNA testing, as well as the testing itself, violated his right
against self-incrimination, as embodied in both Sections 12 and 17 of
Article III of the Constitution. We addressed this as follows:
The contention is untenable. The kernel of the right is not against all
compulsion, but against testimonial compulsion. The right against
self-incrimination is simply against the legal process of extracting
from the lips of the accused an admission of guilt. It does not apply
where the evidence sought to be excluded is not an incrimination but
as part of object evidence.
Over the years, we have expressly excluded several kinds of object
evidence taken from the person of the accused from the realm of selfincrimination. These include photographs,28 hair,29 and other bodily
substances.30 We have also declared as constitutional several
procedures performed on the accused such as pregnancy tests for
women accused of adultery,31 expulsion of morphine from ones
mouth32 and the tracing of ones foot to determine its identity with
bloody footprints.33 In Jimenez v. Caizares ,34 we even authorized the
examination of a womans genitalia, in an action for annulment filed
by her husband, to verify his claim that she was impotent, her orifice
being too small for his penis. Some of these procedures were, to be
sure, rather invasive and involuntary, but all of them were
constitutionally sound. DNA testing and its results, per our ruling in
Yatar,35 are now similarly acceptable.
Nor does petitioners invocation of his right to privacy persuade us. In
Ople v. Torres,36 where we struck down the proposed national
computerized identification system embodied in Administrative Order
No. 308, we said:

In no uncertain terms, we also underscore that the right to privacy does

not bar all incursions into individual privacy. The right is not intended
to stifle scientific and technological advancements that enhance public
service and the common good . . . Intrusions into the right must be
accompanied by proper safeguards that enhance public service and
the common good.
Historically, it has mostly been in the areas of legality of searches and
seizures,37 and the infringement of privacy of communication38 where
the constitutional right to privacy has been critically at issue.
Petitioners case involves neither and, as already stated, his argument
that his right against self-incrimination is in jeopardy holds no water.
His hollow invocation of his constitutional rights elicits no sympathy
here for the simple reason that they are not in any way being violated.
If, in a criminal case, an accused whose very life is at stake can be
compelled to submit to DNA testing, we see no reason why, in this
civil case, petitioner herein who does not face such dire consequences
cannot be ordered to do the same.
DNA paternity testing first came to prominence in the United States,
where it yielded its first official results sometime in 1985. In the
decade that followed, DNA rapidly found widespread general
acceptance.39 Several cases decided by various State Supreme Courts
reflect the total assimilation of DNA testing into their rules of
procedure and evidence.
The case of Wilson v. Lumb40 shows that DNA testing is so commonly
accepted that, in some instances, ordering the procedure has become
a ministerial act. The Supreme Court of St. Lawrence County, New
York allowed a party who had already acknowledged paternity to
subsequently challenge his prior acknowledgment. The Court pointed
out that, under the law, specifically Section 516 of the New York
Family Court Act, the Family Court examiner had the duty, upon
receipt of the challenge, to order DNA tests:41
516-a. Acknowledgment of paternity. (a) An acknowledgment of
paternity executed pursuant to section one hundred eleven-k of the
social services law or section four thousand one hundred thirty-five-b
of the public health law shall establish the paternity of and liability
for the support of a child pursuant to this act. Such acknowledgment
must be reduced to writing and filed pursuant to section four
thousand one hundred thirty-five-b of the public health law with the
registrar of the district in which the birth occurred and in which the
birth certificate has been filed. No further judicial or administrative

114

proceedings are required to ratify an unchallenged acknowledgment of

paternity.

requirements set forth in section 452(a)(7) of the social security act.

(emphasis supplied)

(b) An acknowledgment of paternity executed pursuant to section one

hundred eleven-k of the social services law or section four thousand
one hundred thirty-five-b of the public health law may be rescinded
by either signators filing of a petition with the court to vacate the
acknowledgment within the earlier of sixty days of the date of signing
the acknowledgment or the date of an administrative or a judicial
proceeding (including a proceeding to establish a support order)
relating to the child in which either signator is a party. For purposes
of this section, the date of an administrative or a judicial proceeding
shall be the date by which the respondent is required to answer the
petition. After the expiration of sixty days of the execution of the
acknowledgment, either signator may challenge the acknowledgment
of paternity in court only on the basis of fraud, duress, or material
mistake of fact, with the burden of proof on the party challenging the
voluntary acknowledgment. Upon receiving a partys challenge to
an acknowledgment, the court shall order genetic marker tests or
DNA tests for the determination of the childs paternity and shall
make a finding of paternity, if appropriate, in accordance with
this article. Neither signators legal obligations, including the
obligation for child support arising from the acknowledgment, may be
suspended during the challenge to the acknowledgment except for
good cause as the court may find. If a party petitions to rescind an
acknowledgment and if the court determines that the alleged father is
not the father of the child, or if the court finds that an
acknowledgment is invalid because it was executed on the basis of
fraud, duress, or material mistake of fact, the court shall vacate the
acknowledgment of paternity and shall immediately provide a copy of
the order to the registrar of the district in which the childs birth
certificate is filed and also to the putative father registry operated by
the department of social services pursuant to section three hundred
seventy-two-c of the social services law. In addition, if the mother of
the child who is the subject of the acknowledgment is in receipt of
child support services pursuant to title six-A of article three of the
social services law, the court shall immediately provide a copy of the
order to the child support enforcement unit of the social services
district that provides the mother with such services.

DNA testing also appears elsewhere in the New York Family Court
Act:42

(c) A determination of paternity made by any other state, whether

established through the parents acknowledgment of paternity or
through an administrative or judicial process, must be accorded full
faith and credit, if and only if such acknowledgment meets the

532. Genetic marker and DNA tests; admissibility of records or

reports of test results; costs of tests.
a) The court shall advise the parties of their right to one or more
genetic marker tests or DNA tests and, on the courts own motion or
the motion of any party, shall order the mother, her child and the
alleged father to submit to one or more genetic marker or DNA tests of
a type generally acknowledged as reliable by an accreditation body
designated by the secretary of the federal department of health and
human services and performed by a laboratory approved by such an
accreditation body and by the commissioner of health or by a duly
qualified physician to aid in the determination of whether the alleged
father is or is not the father of the child. No such test shall be
ordered, however, upon a written finding by the court that it is
not in the best interests of the child on the basis of res judicata,
equitable estoppel, or the presumption of legitimacy of a child
born to a married woman. The record or report of the results of any
such genetic marker or DNA test ordered pursuant to this section or
pursuant to section one hundred eleven-k of the social services law
shall be received in evidence by the court pursuant to subdivision (e)
of rule forty-five hundred eighteen of the civil practice law and rules
where no timely objection in writing has been made thereto and that if
such timely objections are not made, they shall be deemed waived and
shall not be heard by the court. If the record or report of the
results of any such genetic marker or DNA test or tests indicate
at least a ninety-five percent probability of paternity, the
admission of such record or report shall create a rebuttable
presumption of paternity, and shall establish, if unrebutted, the
paternity of and liability for the support of a child pursuant to
this article and article four of this act.
(b) Whenever the court directs a genetic marker or DNA test pursuant
to this section, a report made as provided in subdivision (a) of this
section may be received in evidence pursuant to rule forty-five
hundred eighteen of the civil practice law and rules if offered by any
party.
(c) The cost of any test ordered pursuant to subdivision (a) of this
section shall be, in the first instance, paid by the moving party. If the

115

moving party is financially unable to pay such cost, the court may
direct any qualified public health officer to conduct such test, if
practicable; otherwise, the court may direct payment from the funds
of the appropriate local social services district. In its order of
disposition, however, the court may direct that the cost of any such
test be apportioned between the parties according to their respective
abilities to pay or be assessed against the party who does not prevail
on the issue of paternity, unless such party is financially unable to
pay. (emphasis supplied)
In R.E. v. C.E.W.,43 a decision of the Mississippi Supreme Court, DNA
tests were used to prove that H.W., previously thought to be an
offspring of the marriage between A.C.W. and C.E.W., was actually the
child of R.E. with whom C.E.W. had, at the time of conception,
maintained an adulterous relationship.
In Erie County Department of Social Services on behalf of Tiffany M.H.
v. Greg G.,44 the 4th Department of the New York Supreme Courts
Appellate Division allowed G.G., who had been adjudicated as
T.M.H.s father by default, to have the said judgment vacated, even
after six years, once he had shown through a genetic marker test that
he was not the childs father. In this case, G.G. only requested the
tests after the Department of Social Services, six years after G.G. had
been adjudicated as T.M.H.s father, sought an increase in his
support obligation to her.
In Greco v. Coleman,45 the Michigan Supreme Court while ruling on
the constitutionality of a provision of law allowing non-modifiable
support agreements pointed out that it was because of the difficulty of
determining paternity before the advent of DNA testing that such
support agreements were necessary:
As a result of DNA testing, the accuracy with which paternity can be
proven has increased significantly since the parties in this lawsuit
entered into their support agreement . . . (current testing methods can
determine the probability of paternity to 99.999999% accuracy).
However, at the time the parties before us entered into the disputed
agreement, proving paternity was a very significant obstacle to an
illegitimate childs access to child support. The first reported results of
modern DNA paternity testing did not occur until 1985. (In fact,
since its first reported results in 1985, DNA matching has progressed
to general acceptance in less than a decade ). Of course, while prior
blood-testing methods could exclude some males from being the
possible father of a child, those methods could not affirmatively
pinpoint a particular male as being the father. Thus, when the

settlement agreement between the present parties was entered in

1980, establishing paternity was a far more difficult ordeal than at
present. Contested paternity actions at that time were often no more
than credibility contests. Consequently, in every contested paternity
action, obtaining child support depended not merely on whether the
putative father was, in fact, the child's biological father, but rather on
whether the mother could prove to a court of law that she was only
sexually involved with one man--the putative father. Allowing parties
the option of entering into private agreements in lieu of proving
paternity eliminated the risk that the mother would be unable meet
her burden of proof.
It is worth noting that amendments to Michigans Paternity law have
included the use of DNA testing:46
722.716 Pretrial proceedings; blood or tissue typing determinations
as to mother, child, and alleged father; court order; refusal to submit
to typing or identification profiling; qualifications of person
conducting typing or identification profiling; compensation of expert;
result of typing or identification profiling; filing summary report;
objection; admissibility; presumption; burden of proof; summary
disposition.
Sec. 6.
(1) In a proceeding under this act before trial, the court, upon
application made by or on behalf of either party, or on its own
motion, shall order that the mother, child, and alleged father
submit to blood or tissue typing determinations, which may
include, but are not limited to, determinations of red cell
antigens, red cell isoenzymes, human leukocyte antigens, serum
proteins, or DNA identification profiling, to determine whether
the alleged father is likely to be, or is not, the father of the child.
If the court orders a blood or tissue typing or DNA identification
profiling to be conducted and a party refuses to submit to the
typing or DNA identification profiling, in addition to any other
remedies available, the court may do either of the following:
(a) Enter a default judgment at the request of the appropriate
party.
(b) If a trial is held, allow the disclosure of the fact of the refusal
unless good cause is shown for not disclosing the fact of refusal.

116

(2) A blood or tissue typing or DNA identification profiling shall be

conducted by a person accredited for paternity determinations by a
nationally recognized scientific organization, including, but not
limited to, the American association of blood banks.
xxx

xxx

xxx

(5) If the probability of paternity determined by the qualified

person described in subsection (2) conducting the blood or tissue
typing or DNA identification profiling is 99% or higher, and the
DNA identification profile and summary report are admissible as
provided in subsection (4), paternity is presumed. If the results of
the analysis of genetic testing material from 2 or more persons
indicate a probability of paternity greater than 99%, the
contracting laboratory shall conduct additional genetic paternity
testing until all but 1 of the putative fathers is eliminated, unless
the dispute involves 2 or more putative fathers who have
identical DNA.
(6) Upon the establishment of the presumption of paternity as
provided in subsection (5), either party may move for summary
disposition under the court rules. This section does not abrogate the
right of either party to child support from the date of birth of the child
if applicable under section 7. (emphasis supplied)
In Rafferty v. Perkins,47 the Supreme Court of Mississippi ruled that
DNA test results showing paternity were sufficient to overthrow the
presumption of legitimacy of a child born during the course of a
marriage:
The presumption of legitimacy having been rebutted by the results of
the blood test eliminating Perkins as Justin's father, even considering
the evidence in the light most favorable to Perkins, we find that no
reasonable jury could find that Easter is not Justin's father based
upon the 99.94% probability of paternity concluded by the DNA
testing.
In S.J.F. and J.C.F. v. R.C.W.,48 the North Dakota Supreme Court
upheld an order for genetic testing given by the Court of Appeals, even
after trial on the merits had concluded without such order being
given. Significantly, when J.C.F., the mother, first filed the case for
paternity and support with the District Court, neither party requested
genetic testing. It was only upon appeal from dismissal of the case

that the appellate court remanded the case and ordered the testing,
which the North Dakota Supreme Court upheld.
The case of Kohl v. Amundson,49 decided by the Supreme Court of
South Dakota, demonstrated that even default judgments of paternity
could be vacated after the adjudicated father had, through DNA
testing, established non-paternity. In this case, Kohl, having excluded
himself as the father of Amundsons child through DNA testing, was
able to have the default judgment against him vacated. He then
obtained a ruling ordering Amundson to reimburse him for the
amounts withheld from his wages for child support. The Court said
(w)hile Amundson may have a remedy against the father of the child,
she submit(ted) no authority that require(d) Kohl to support her child.
Contrary to Amundsons position, the fact that a default judgment
was entered, but subsequently vacated, (did) not foreclose Kohl from
obtaining a money judgment for the amount withheld from his
wages.
In M.A.S. v. Mississippi Dept. of Human Services,50 another case
decided by the Supreme Court of Mississippi, it was held that even if
paternity was established through an earlier agreed order of filiation,
child support and visitation orders could still be vacated once DNA
testing established someone other than the named individual to be
the biological father. The Mississippi High Court reiterated this
doctrine in Williams v. Williams.51
The foregoing considered, we find no grave abuse of discretion on the
part of the public respondent for upholding the orders of the trial
court which both denied the petitioners motion to dismiss and
ordered him to submit himself for DNA testing. Under Rule 65 of the
1997 Rules of Civil Procedure, the remedy of certiorari is only
available when any tribunal, board or officer has acted without or in
excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal,
nor any plain, speedy and adequate remedy in the ordinary course of
law.52 In Land Bank of the Philippines v. The Court of Appeals 53 where
we dismissed a special civil action for certiorari under Rule 65, we
discussed at length the nature of such a petition and just what was
meant by grave abuse of discretion:
Grave abuse of discretion implies such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction or, in other
words, where the power is exercised in an arbitrary manner by
reason of passion, prejudice, or personal hostility, and it must be
so patent or gross as to amount to an evasion of a positive duty

117

or to a virtual refusal to perform the duty enjoined or to act at all

in contemplation of law.
The special civil action for certiorari is a remedy designed for the
correction of errors of jurisdiction and not errors of judgment. The
raison dtre for the rule is when a court exercises its jurisdiction, an
error committed while so engaged does not deprive it of the
jurisdiction being exercised when the error is committed. If it did,
every error committed by a court would deprive it of its jurisdiction
and every erroneous judgment would be a void judgment. In such a
scenario, the administration of justice would not survive. Hence,
where the issue or question involved affects the wisdom or legal
soundness of the decisionnot the jurisdiction of the court to render
said decisionthe same is beyond the province of a special civil action
for certiorari.
The proper recourse of the aggrieved party from a decision of the CA is
a petition for review on certiorari under Rule 45 of the Revised Rules
of Court. On the other hand, if the error subject of the recourse is one
of jurisdiction, or the act complained of was perpetrated by a quasijudicial officer or agency with grave abuse of discretion amounting to
lack or excess of jurisdiction, the proper remedy available to the
aggrieved party is a petition for certiorari under Rule 65 of the said
Rules. (emphasis supplied)

WHEREFORE, in view of the foregoing, the petition is hereby DENIED.

The Court of Appeals decision dated January 28, 2004 in CA-G.R. SP
No. 80961 is hereby AFFIRMED in toto.
Costs against petitioner.
340
340 SUPREME COURT REPORTS ANNOTATED
Cruz vs. Coca-Cola Bottlers, Phils., Inc.
SO ORDERED.
Panganiban (Chairman), Sandoval-Gutierrez, Carpio-Morales and
Garcia, JJ., concur.
Petition denied, judgment affirmed in toto.
Note.While a birth certificate is a formidable piece of evidence
prescribed by both the Civil Code and Article 172 of the Family Code
for purposes of recognition and filiation, it offers only prima facie
evidence of filiation and may be refuted by contrary evidence. (Solinap
vs. Locsin, Jr., 370 SCRA 711 [2001])

In the instant case, the petitioner has in no way shown any

arbitrariness, passion, prejudice or personal hostility that would
amount to grave abuse of discretion on the part of the Court of
Appeals. The respondent court acted entirely within its jurisdiction in
promulgating its decision and resolution, and any error made would
have only been an error in judgment. As we have discussed, however,
the decision of the respondent court, being firmly anchored in law and
jurisprudence, was correct.
Epilogue
For too long, illegitimate children have been marginalized by fathers
who choose to deny their existence. The growing sophistication of
DNA testing technology finally provides a much needed equalizer for
such ostracized and abandoned progeny. We have long believed in the
merits of DNA testing and have repeatedly expressed as much in the
past. This case comes at a perfect time when DNA testing has finally
evolved into a dependable and authoritative form of evidence
gathering. We therefore take this opportunity to forcefully reiterate
our stand that DNA testing is a valid means of determining paternity.

118

his name and granting of the same at this point may just prejudice
him in his rights under our laws.
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,
petitioner, vs. CEBU CITY CIVIL REGISTRAR, duly represented by
the Registrar OSCAR B. MOLO, respondent.
Civil Registry; Change of Name; 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.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.
Same; Same; Grounds Held Valid for a Change of 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.
Same; Same; It is best that the matter of change of his name be left to
his judgment and discretion when he reaches the age of major-ity.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. As he is of tender age,
he may not yet understand and appreciate the value of the change of

PETITION for review on certiorari of a decision of the Regional Trial

Court of Cebu City, Br. 57.
The facts are stated in the opinion of the Court.
Magdalena M.R. Lepiten for petitioner.
The Solicitor General for respondent.
TINGA, J.:
I will not blot out his name from 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

119

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 1747
of the Family Code. Petitioner contends that [W]ith globalization and
mixed marriages, there is a need for the Supreme Court to rule on the
matter of dropping of family name for a child to adjust to his new
environment, for consistency and harmony among siblings, taking
into consideration the best interest of the child.8 It is argued that

convenience of the child is a valid reason for changing the name as

long as it will not prejudice the State and others. Petitioner points out
that the middle name Carulasan will cause him undue
embarrassment and the difficulty in writing or pronouncing it will be
an obstacle to his social acceptance and integration in the
Singaporean community. Petitioner also alleges that it is error for the
trial court to have denied the petition for change of name until he had
reached the age of majority for him to decide the name to use,
contrary to previous cases9 decided by this Court that allowed a minor
to petition for change of name.10
The Court required the Office of the Solicitor General (OSG) to
comment on the petition. The OSG filed its Comment11 positing that
the trial court correctly denied the petition for change of name. The
OSG argues that under Article 174 of the Family Code, legitimate
children have the right to bear the surnames of their father and
mother, and such right cannot be denied by the mere expedient of
dropping the same. According to the OSG, there is also no showing
that the dropping of the middle name Carulasan is in the best
interest of petitioner, since mere convenience is not sufficient to
support a petition for change of name and/or cancellation of entry. 12
The OSG also adds that the petitioner has not shown any compelling
reason to justify the change of name or the dropping of the middle
name, 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

120

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

121

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 and Calderon v. Republic,24 which, however, are not
apropos both.
In Oshita, the petitioner therein, a legitimate daughter of a Filipino
mother, Buena Bartolome, and a Japanese father, Kishimatsu Oshita,
sought to change her name from Anton-ina 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 her mother 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.

122

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.
Puno (Chairman), Austria-Martinez, Callejo, Sr. and Chico-Nazario,
JJ., concur.
Petition denied.
Note.Procedure for change of name under Rule 103 and procedure
for cancellation or correction of entries in the civil registry under Rule
108 are separate and distinct. (Republic vs. Belmonte, 158 SCRA 173
[1988])

123

G.R. No. 156343. October 18, 2004.*

JOEY D. BRIONES, petitioner, vs. MARICEL P. MIGUEL,
FRANCISCA P. MIGUEL, and LORETA P. MIGUEL, respondents.
Family Code; Illegitimate Child; Parental Authority; Illegitimate children
shall be under the parental authority of the mother, regardless of
whether the father admits paternity.Having been born outside a
valid marriage, the minor is deemed an illegitimate child of petitioner
and Respondent Loreta. Article 176 of the Family Code of the
Philippines explicitly provides that illegitimate children shall use the
surname and shall be under the parental authority of their mother,
and shall be entitled to support in conformity with this Code. This is
the rule regardless of whether the father admits paternity.
Same; Same; Same; The fine distinctions among the various types of
illegitimate children have been eliminated in the Family Code.The fine
distinctions among the various types of illegitimate children have been
eliminated in the Family Code. Now, there are only two classes of
childrenlegitimate (and those who, like the legally adopted, have the
rights of legitimate children) and illegitimate. All children conceived
and born outside a valid marriage are illegitimate, unless the law itself
gives them legitimate status.
Same; Same; Same; The recognition of an illegitimate child by the father
could be a ground for ordering the latter to give support to, but not
custody of the child.The recognition of an illegitimate child by the
father could be a ground for ordering the latter to give support to, but
not custody of, the child. The law explicitly confers to the mother sole
parental authority over an illegitimate child; it follows that only if she
defaults can the father assume custody and authority over the minor.
Of course, the putative father may adopt his own illegitimate child; in
such a case, the child shall be considered a legitimate child of the
adoptive parent.
Same; Same; Same; Only the most compelling of reasons, such as the
mothers unfitness to exercise sole parental authority, shall justify her
deprivation of parental authority and the award of custody to someone
else.Not to be ignored in Article 213 of the Family Code is the caveat
that, generally, no child under seven years of age shall be separated
from the mother, except when the court finds cause to order
otherwise. Only the most compelling of reasons, such as the mothers

unfitness to exercise sole parental authority, shall justify her

deprivation of parental authority and the award of custody to
someone else. In the past, the following grounds have been considered
ample justification to deprive a mother of custody and parental
authority: neglect or abandonment, unemployment, immorality,
habitual drunkenness, drug addiction, maltreatment of the child,
insanity, and affliction with a communicable disease.
PETITION for review on certiorari of the decision and resolution of the
Court of Appeals.
The facts are stated in the opinion of the Court.
Manuel T. Molina for petitioner.
Joaquin L. De Los Santos for respondents.
PANGANIBAN, J.:
An illegitimate child is under the sole parental authority of the
mother. In the exercise of that authority, she is entitled to keep the
child in her company. The Court will not deprive her of custody,
absent any imperative cause showing her unfitness to exercise such
authority and care.
The Case
The Petition for Review1 before the Court seeks to reverse and set
aside the August 28, 2002 Decision 2 and the December 11, 2002
Resolution3 of the Court of Appeals in CA-GR SP No. 69400.4 The
dispositive portion of the assailed Decision reads as follows:
WHEREFORE, the petition is hereby DISMISSED. Respondent Loreta
P. Miguel shall have custody over the child Michael Kevin Pineda until
he reaches ten (10) years of age. Once the said child is beyond ten (10)
years of age, the Court allows him to choose which parent he prefers
to live with pursuant to Section 6, Rule 99 of the 1997 Rules of Civil
Procedure, as amended. The petitioner, Joey D. Briones, shall help
support the child, shall have visitorial rights at least once a week, and
may take the child out upon the written consent of the mother.
Acting on the petitioners Urgent Motion for a Hold Departure Order,
and finding it to be without merit, the same is DENIED.5

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The challenged Resolution denied reconsideration.

The Facts
The CA summarized the antecedents of the case in this wise:
On March 5, 2002, petitioner Joey D. Briones filed a Petition for
Habeas Corpus against respondents Maricel Pineda Miguel and
Francisca Pineda Miguel, to obtain custody of his minor child Michael
Kevin Pineda.
On April 25, 2002, the petitioner filed an Amended Petition to include
Loreta P. Miguel, the mother of the minor, as one of the respondents.
A Writ of Habeas Corpus was issued by this Court on March 11,
2002 ordering the respondents to produce before this Court the living
body of the minor Michael Kevin Pineda on March 21, 2002 at 2:00
oclock in the afternoon.
The petitioner alleges that the minor Michael Kevin Pineda is his
illegitimate son with respondent Loreta P. Miguel. He was born in
Japan on September 17, 1996 as evidenced by his Birth Certificate.
The respondent Loreta P. Miguel is now married to a Japanese
national and is presently residing in Japan.
The petitioner further alleges that on November 4, 1998 he caused
the minor child to be brought to the Philippines so that he could take
care of him and send him to school. In the school year 2000-2001, the
petitioner enrolled him at the nursery school of Blessed Angels L.A.
School, Inc. in Caloocan City, where he finished the nursery course.
According to the petitioner, his parents, who are both retired and
receiving monthly pensions, assisted him in taking care of the child.
On May 2, 2001, respondents Maricel P. Miguel and Francisca P.
Miguel came to the house of the petitioner in Caloocan City on the
pretext that they were visiting the minor child and requested that they
be allowed to bring the said child for recreation at the SM Department
store. They promised him that they will bring him back in the
afternoon, to which the petitioner agreed. However, the respondents
did not bring him back as promised by them.

The petitioner went several times to respondent Maricel P. Miguel at

Tanza, Tuguegarao City but he was informed that the child is with the
latters mother at Batal Heights, Santiago City. When he went there,
respondent Francisca P. Miguel told him that Michael Kevin Pineda is
with her daughter at Tuguegarao City.
He sought the assistance of the police and the Department of Social
Welfare to locate his son and to bring him back to him, but all his
efforts were futile.
Hence, he was constrained to file a Petition for Habeas Corpus with
the Regional Trial Court of Caloocan City which was docketed as SPC
No. 2711. However, the said case was withdrawn ex-parte.
The petitioner prays that the custody of his son Michael Kevin Pineda
be given to him as his biological father and [as] he has demonstrated
his capability to support and educate him.
On May 6, 2002, the respondents filed their Comment, in compliance
with the May 2, 2002 Resolution of this Court.
In their Comment, the respondent Loreta P. Miguel denies the
allegation of the petitioner that he was the one who brought their
child to the Philippines and stated that she was the one who brought
him here pursuant to their agreement.
Respondent Loreta P. Miguel likewise denies petitioners allegation
that respondents Maricel P. Miguel and Francisca P. Miguel were the
ones who took the child from the petitioner or the latters parents. She
averred that she was the one who took Michael Kevin Pineda from the
petitioner when she returned to the Philippines and that the latter
readily agreed and consented.
Respondent Loreta P. Miguel alleges that sometime in October 2001,
the petitioner was deported from Japan under the assumed name of
Renato Juanzon when he was found to have violated or committed an
infraction of the laws of Japan. She further stated that since the time
the petitioner arrived in the Philippines, he has not been gainfully
employed. The custody of the child, according to respondent Loreta P.
Miguel was entrusted to petitioners parents while they were both
working in Japan. She added that even before the custody of the child
was given to the petitioners parents, she has already been living
separately from the petitioner in Japan because the latter was

125

allegedly maintaining an illicit affair with another woman until his

deportation.

Sole
Who Should Have Custody of the Child?

She likewise stated in her Comment that her marriage to a Japanese

national is for the purpose of availing of the privileges of staying
temporarily in Japan to pursue her work so she could be able to send
money regularly to her son in the Philippines. She further stated that
she has no intention of staying permanently in Japan as she has been
returning to the Philippines every six (6) months or as often as she
could.

Petitioner concedes that Respondent Loreta has preferential right over

their minor child. He insists, however, that custody should be
awarded to him whenever she leaves for Japan and during the period
that she stays there. In other words, he wants joint custody over the
minor, such that the mother would have custody when she is in the
country. But when she is abroad, heas the biological fathershould
have custody.

Respondent Loreta P. Miguel prays that the custody of her minor

child be given to her and invokes Article 213, Paragraph 2 of the
Family Code and Article 363 of the Civil Code of the Philippines.
Ruling of the Court of Appeals

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

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

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

awarded the custody of Michael Kevin Pineda Miguel to his mother,
Respondent Loreta P. Miguel. While acknowledging that petitioner
truly loved and cared for his son and considering the trouble and
expense he had spent in instituting the legal action for custody, it
nevertheless found no compelling reason to separate the minor from
his mother. Petitioner, however, was granted visitorial rights.

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

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

Hence, this Petition.6

Having been born outside a valid marriage, the minor is deemed an

illegitimate child of petitioner and Respondent Loreta. Article 176 of
the Family Code of the Philippines12 explicitly provides that
illegitimate children shall use the surname and shall be under the
parental authority of their mother, and shall be entitled to support in
conformity with this Code. This is the rule regardless of whether the
father admits paternity.13

Issue
In his Memorandum, petitioner formulated the ultimate issue as
follows: x x x [w]hether or not [he], as the natural father, may be
denied the custody and parental care of his own child in the absence
of the mother who is away.7
The Courts Ruling
The Petition has no merit. However, the assailed Decision should be
modified in regard to its erroneous application of Section 6 of Rule 99
of the Rules of Court.

Issue

Previously, under the provisions of the Civil Code, illegitimate children

were generally classified into two groups: (1) natural, whether actual
or by legal fiction; and (2) spurious, whether incestuous, adulterous or
illicit.14 A natural child is one born outside a lawful wedlock of
parents who, at the time of conception of the child, were not
disqualified by any impediment to marry each other. 15 On the other
hand, a spurious child is one born of parents who, at the time of
conception, were disqualified to marry each other on account of
certain legal impediments.16

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Parental authority over recognized natural children who were under

the age of majority was vested in the father or the mother recognizing
them.17 If both acknowledge the child, authority was to be exercised
by the one to whom it was awarded by the courts; if it was awarded to
both, the rule as to legitimate children applied. In other words, in the
latter case, parental authority resided jointly in the father and the
mother.18
The fine distinctions among the various types of illegitimate children
have been eliminated in the Family Code. 19 Now, there are only two
classes of childrenlegitimate (and those who, like the legally
adopted, have the rights of legitimate children) and illegitimate. All
children conceived and born outside a valid marriage are illegitimate,
unless the law itself gives them legitimate status.20
Article 54 of the Code provides these exceptions: Children conceived
or born before the judgment of annulment or absolute nullity of the
marriage under Article 36 has become final and executory shall be
considered legitimate. Children conceived or born of the subsequent
marriage under Article 53 shall likewise be legitimate.
Under Article 176 of the Family Code, all illegitimate children are
generally placed under one category, without any distinction between
natural and spurious.21 The concept of natural child is important
only for purposes of legitimation.22 Without the subsequent marriage,
a natural child remains an illegitimate child.
Obviously, Michael is a natural (illegitimate, under the Family Code)
child, as there is nothing in the records showing that his parents were
suffering from a legal impediment to marry at the time of his birth.
Both acknowledge that Michael is their son. As earlier explained and
pursuant to Article 176, parental authority over him resides in his
mother, Respondent Loreta, notwithstanding his fathers recognition
of him.
David v. Court of Appeals23 held that the recognition of an illegitimate
child by the father could be a ground for ordering the latter to give
support to, but not custody of, the child. The law explicitly confers to
the mother sole parental authority over an illegitimate child; it follows
that only if she defaults can the father assume custody and authority
over the minor. Of course, the putative father may adopt his own
illegitimate child;24 in such a case, the child shall be considered a
legitimate child of the adoptive parent.25

There is thus no question that Respondent Loreta, being the mother

of and having sole parental authority over the minor, is entitled to
have custody of him.26 She has the right to keep him in her
company.27 She cannot be deprived of that right,28 and she may not
even renounce or transfer it except in the cases authorized by law. 29
Not to be ignored in Article 213 of the Family Code is the caveat that,
generally, no child under seven years of age shall be separated from
the mother, except when the court finds cause to order otherwise.
Only the most compelling of reasons, such as the mothers unfitness
to exercise sole parental authority, shall justify her deprivation of
parental authority and the award of custody to someone else.30 In the
past, the following grounds have been considered ample justification
to deprive a mother of custody and parental authority: neglect or
abandonment,31 unemployment, immorality,32 habitual drunkenness,
drug addiction, maltreatment of the child, insanity, and affliction with
a communicable disease.
Bearing in mind the welfare and the best interest of the minor as the
controlling factor,33 we hold that the CA did not err in awarding care,
custody, and control of the child to Respondent Loreta. There is no
showing at all that she is unfit to take charge of him.
We likewise affirm the visitorial right granted by the CA to petitioner.
In Silva v. Court of Appeals,34 the Court sustained the visitorial right
of an illegitimate father over his children in view of the
constitutionally protected inherent and natural right of parents over
their children.35 Even when the parents are estranged and their
affection for each other is lost, their attachment to and feeling for
their offspring remain unchanged. Neither the law nor the courts
allow this affinity to suffer, absent any real, grave or imminent threat
to the wellbeing of the child.
However, the CA erroneously applied Section 6 of Rule 99 of the Rules
of Court. This provision contemplates a situation in which the parents
of the minor are married to each other, but are separated either by
virtue of a decree of legal separation or because they are living
separately de facto. In the present case, it has been established that
petitioner and Respondent Loreta were never married. Hence, that
portion of the CA Decision allowing the child to choose which parent
to live with is deleted, but without disregarding the obligation of
petitioner to support the child.

127

WHEREFORE, the Petition is DENIED and the assailed Decision

AFFIRMED with the MODIFICATION that the disposition allowing the
child, upon reaching ten (10) years of age, to choose which parent to
live with is DELETED for lack of legal basis. Costs against petitioner.
SO ORDERED.
Sandoval-Gutierrez and Corona, JJ., concur.
Carpio-Morales, J., On Leave.
Petition denied, assailed decision affirmed with modification.
Note.The due recognition of illegitimate children in a record of birth,
a will, a statement before a court of record, or in any authentic writing
is, in itself, a consummated act of acknowledgement of the child, and
no further court action is required, but where a claim for recognition
is predicated on other evidence merely tending to prove paternity,
judicial action within the applicable statute of limitations is essential
in order to establish the childs acknowledgment. (De Jesus vs. Estate
of Decedent Juan Gamboa Dizon, 366 SCRA 499 [2001])

128

G.R. No. 206248.

GRACE M.
respondent.

February 18, 2014.*

GRANDE,

petitioner,

vs.

PATRICIO

T.

ANTONIO,

Civil Law; Illegitimate Children; Surnames; The general rule is that an

illegitimate child shall use the surname of his or her mother. The
exception provided by Republic Act (R.A.) No. 9255 is, in case his or her
filiation is expressly recognized by the father through the record of birth
appearing in the civil register or when an admission in a public
document or private handwritten instrument is made by the father.It
is clear that the general rule is that an illegitimate child shall use the
surname of his or her mother. The exception provided by RA 9255 is,
in case his or her filiation is expressly recognized by the father
through the record of birth appearing in the civil register or when an
admission in a public document or private handwritten instrument is
made by the father. In such a situation, the illegitimate child may use
the surname of the father.
Same; Same; Parental Authority; Parental authority over minor children
is lodged by Art. 176 on the mother. Since parental authority is given to
the mother, then custody over the minor children also goes to the
mother, unless she is shown to be unfit.Parental authority over
minor children is lodged by Art. 176 on the mother; hence,
respondents prayer has no legal mooring. Since parental authority is
given to the mother, then custody over the minor children also goes to
the mother, unless she is shown to be unfit.
Same; Same; Surnames; An acknowledged illegitimate child is under no
compulsion to use the surname of his illegitimate father.Now comes
the matter of the change of surname of the illegitimate children. Is
there a legal basis for the court a quo to order the change of the
surname to that of respondent? Clearly, there is none. Otherwise, the
order or ruling will contravene the explicit and unequivocal provision
of Art. 176 of the Family Code, as amended by RA 9255. Art. 176
gives illegitimate children the right to decide if they want to use the
surname of their father or not. It is not the father (herein respondent)
or the mother (herein petitioner) who is granted by law the right to
dictate the surname of their illegitimate children. Nothing is more
settled than that when the law is clear and free from ambiguity, it
must be taken to mean what it says and it must be given its literal
meaning free from any interpretation. Respondents position that the

court can order the minors to use his surname, therefore, has no legal
basis. On its face, Art. 176, as amended, is free from ambiguity. And
where there is no ambiguity, one must abide by its words. The use of
the word may in the provision readily shows that an acknowledged
illegitimate child is under no compulsion to use the surname of
his illegitimate father. The word may is permissive and operates to
confer discretion upon the illegitimate children.
Same; Same; Same; On the matter of childrens surnames, the Supreme
Court has, time and again, rebuffed the idea that the use of the fathers
surname serves the best interest of the minor child.It is best to
emphasize once again that the yardstick by which policies affecting
children are to be measured is their best interest. On the matter of
childrens surnames, this Court has, time and again, rebuffed the idea
that the use of the fathers surname serves the best interest of the
minor child. In Alfon v. Republic, 97 SCRA 858 (1980), for instance,
this Court allowed even a legitimate child to continue using the
surname of her mother rather than that of her legitimate father as it
serves her best interest and there is no legal obstacle to prevent her
from using the surname of her mother to which she is entitled. In
fact, in Calderon v. Republic, 19 SCRA 721 (1967), this Court,
upholding the best interest of the child concerned, even allowed the
use of a surname different from the surnames of the childs father or
mother. Indeed, the rule regarding the use of a childs surname is
second only to the rule requiring that the child be placed in the best
possible situation considering his circumstances.
Administrative Law; The hornbook rule is that an administrative
issuance cannot amend a legislative act.The hornbook rule is that
an administrative issuance cannot amend a legislative act. In MCC
Industrial Sales Corp. v. Ssangyong Corporation, 536 SCRA 408
(2007), We held: After all, the power of administrative officials to
promulgate rules in the implementation of a statute is necessarily
limited to what is found in the legislative enactment itself. The
implementing rules and regulations of a law cannot extend the law or
expand its coverage, as the power to amend or repeal a statute is
700 vested in the Legislature. Thus, if a discrepancy occurs between
the basic law and an implementing rule or regulation, it is the former
that prevails, because the law cannot be broadened by a mere
administrative issuance an administrative agency certainly cannot
amend an act of Congress. Thus, We can disregard contemporaneous
construction where there is no ambiguity in law and/or the
construction is clearly erroneous. What is more, this Court has the
constitutional prerogative and authority to strike down and declare as

129

void the rules of procedure of special courts and quasi-judicial bodies

when found contrary to statutes and/or the Constitution.
PETITION for review on certiorari of the decision and resolution of the
Court of Appeals.
The facts are stated in the opinion of the Court.
Nancy Villanueva Teylan for petitioner.
Romeo N. Bartolome for respondent.

VELASCO, JR.,

J.:

Before this Court is a Petition for Review on Certiorari under Rule 45,
assailing the July 24, 2012 Decision1 and March 5, 2013 Resolution2
of the Court of Appeals (CA) in CA-G.R. CV No. 96406.
As culled from the records, the facts of this case are:
Petitioner Grace Grande (Grande) and respondent Patricio Antonio
(Antonio) for a period of time lived together as husband and wife,
although Antonio was at that time already married to someone else.3
Out of this illicit relationship, two sons were born: Andre Lewis (on
February 8, 1998) and Jerard Patrick (on October 13, 1999).4 The
children were not expressly recognized by respondent as his own in
the Record of Births of the children in the Civil Registry. The parties
relationship, however, eventually turned sour, and Grande left for the
United States with her two children in May 2007. This prompted
respondent Antonio to file a Petition for Judicial Approval of
Recognition with Prayer to take Parental Authority, Parental Physical
Custody, Correction/Change of Surname of Minors and for the
Issuance of Writ of Preliminary Injunction before the Regional Trial
Court, Branch 8 of Aparri, Cagayan (RTC), appending a notarized
Deed of Voluntary Recognition of Paternity of the children.5
On September 28, 2010, the RTC rendered a Decision in favor of
herein respondent Antonio, ruling that [t]he evidence at hand is
overwhelming that the best interest of the children can be promoted if
they are under the sole parental authority and physical custody of
[respondent Antonio].6 Thus, the court a quo decreed the following:

WHEREFORE, foregoing premises considered, the Court hereby

grants [Antonios] prayer for recognition and the same is hereby
judicially approved. x x x Consequently, the Court forthwith
issues the following Order granting the other reliefs sought in
the Petition, to wit:
a. Ordering the Office of the City Registrar of the City of Makati
to cause the entry of the name of [Antonio] as the father of the
aforementioned minors in their respective Certificate of Live
Birth and causing the correction/change and/or annotation
of the surnames of said minors in their Certificate of Live
Birth from Grande to Antonio;
b. Granting [Antonio] the right to jointly exercise Parental
Authority with [Grande] over the persons of their minor
children, Andre Lewis Grande and Jerard Patrick Grande;
c. Granting [Antonio] primary right and immediate custody over
the parties minor children Andre Lewis Grandre and Jerard
Patrick Grande who shall stay with [Antonios] residence in the
Philippines from Monday until Friday evening and to [Grandes]
custody from Saturday to Sunday evening;
d. Ordering [Grande] to immediately surrender the persons and
custody of minors Andre Lewis Grande and Jerard Patrick
Grande unto [Antonio] for the days covered by the Order;
e. Ordering parties to cease and desist from bringing the
aforenamed minors outside of the country, without the written
consent of the other and permission from the court.
f. Ordering parties to give and share the support of the minor
children Andre Lewis Grande and Jerard Patrick Grande in the
amount of P30,000 per month at the rate of 70% for [Antonio]
and 30% for [Grande].7 (Emphasis supplied.)
Aggrieved, petitioner Grande moved for reconsideration. However, her
motion was denied by the trial court in its Resolution dated November
22, 20108 for being pro forma and for lack of merit.
Petitioner Grande then filed an appeal with the CA attributing grave
error on the part of the RTC for allegedly ruling contrary to the law
and jurisprudence respecting the grant of sole custody to the mother
over her illegitimate children.9 In resolving the appeal, the appellate

130

court modified in part the Decision of the RTC. The dispositive portion
of the CA Decision reads:
WHEREFORE, the appeal is partly GRANTED. Accordingly, the
appealed Decision of the Regional Trial Court Branch 8, Aparri
Cagayan in SP Proc. Case No. 11-4492 is MODIFIED in part
and shall hereinafter read as follows:
a. The Offices of the Civil Registrar General and the City
Civil Registrar of Makati City are DIRECTED to enter the
surname Antonio as the surname of Jerard Patrick and
Andre Lewis, in their respective certificates of live birth,
and record the same in the Register of Births;
b. [Antonio] is ORDERED to deliver the minor children Jerard
Patrick and Andre Lewis to the custody of their mother herein
appellant, Grace Grande who by virtue hereof is hereby
awarded the full or sole custody of these minor children;
c. [Antonio] shall have visitorial rights at least twice a week, and
may only take the children out upon the written consent of
[Grande]; and
d. The parties are DIRECTED to give and share in support of
the minor children Jerard Patrick and Andre Lewis in the
amount of P30,000.00 per month at the rate of 70% for
[Antonio] and 30% for [Grande]. (Emphasis supplied.)

In ruling thus, the appellate court ratiocinated that notwithstanding

the fathers recognition of his children, the mother cannot be deprived
of her sole parental custody over them absent the most compelling of
reasons.10 Since respondent Antonio failed to prove that petitioner
Grande committed any act that adversely affected the welfare of the
children or rendered her unsuitable to raise the minors, she cannot
be deprived of her sole parental custody over their children.
The appellate court, however, maintained that the legal consequence
of the recognition made by respondent Antonio that he is the
father of the minors, taken in conjunction with the universally
protected best-interest-of-the-child clause, compels the use by
the children of the surname ANTONIO.11

As to the issue of support, the CA held that the grant is legally in

order considering that not only did Antonio express his willingness to
give support, it is also a consequence of his acknowledging the
paternity of the minor children.12 Lastly, the CA ruled that there is
no reason to deprive respondent Antonio of his visitorial right
especially in view of the constitutionally inherent and natural right of
parents over their children.13
Not satisfied with the CAs Decision, petitioner Grande interposed a
partial motion for reconsideration, particularly assailing the order of
the CA insofar as it decreed the change of the minors surname to
Antonio. When her motion was denied, petitioner came to this Court
via the present petition. In it, she posits that Article 176 of the Family
Code as amended by Republic Act No. (RA) 9255, couched as it is
in permissive language may not be invoked by a father to compel
the use by his illegitimate children of his surname without the
consent of their mother.
We find the present petition impressed with merit.
The sole issue at hand is the right of a father to compel the use of his
surname by his illegitimate children upon his recognition of their
filiation. Central to the core issue is the application of Art. 176 of the
Family Code, originally phrased as follows:
Illegitimate children shall use the surname and shall be under
the parental authority of their mother, and shall be entitled to
support in conformity with this Code. The legitime of each
illegitimate child shall consist of one-half of the legitime of a
legitimate child. Except for this modification, all other
provisions in the Civil Code governing successional rights shall
remain in force.
This provision was later amended on March 19, 2004 by RA 925514
which now reads:
Art. 176. Illegitimate children shall use the surname and shall be
under the parental authority of their mother, and shall be entitled to
support in conformity with this Code. However, illegitimate children
may use the surname of their father if their filiation has been
expressly recognized by their father through the record of birth
appearing in the civil register, or when an admission in a public
document or private handwritten instrument is made by the father.
Provided, the father has the right to institute an action before the

131

regular courts to prove non-filiation during his lifetime. The legitime of

each illegitimate child shall consist of one-half of the legitime of a
legitimate child. (Emphasis supplied.)

(a) The written official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and public
officers, whether of the Philippines, or a foreign country;

From the foregoing provisions, it is clear that the general rule is that
an illegitimate child shall use the surname of his or her mother. The
exception provided by RA 9255 is, in case his or her filiation is
expressly recognized by the father

(b) Documents acknowledged before a notary public except last

will and testaments; and
(c) Public records, kept in the Philippines, of private documents
required by law to be entered therein.

An Act Allowing Illegitimate Children to Use the Surname of Their

Father Amending for the Purpose Article 176 of Executive Order No.
209, Otherwise Known as the Family Code of the Philippines, signed
into law on February 24, 2004 and took effect on March 19, 2004
fifteen (15) days after its publication on Malaya and the Manila Times
on March 4, 2004.

Clearly, there is none. Otherwise, the order or ruling will contravene

the explicit and unequivocal provision of Art. 176 of the Family Code,
as amended by RA 9255.

706 through the record of birth appearing in the civil register or when
an admission in a public document or private handwritten instrument
is made by the father. In such a situation, the illegitimate child may
use the surname of the father.

Art. 176 gives illegitimate children the right to decide if they want to
use the surname of their father or not. It is not the father (herein
respondent) or the mother (herein petitioner) who is granted by law
the right to dictate the surname of their illegitimate children.

In the case at bar, respondent filed a petition for judicial approval of

recognition of the filiation of the two children with the prayer for the
correction or change of the surname of the minors from Grande to
Antonio when a public document acknowledged before a notary public
under Sec. 19, Rule 132 of the Rules of Court15 is enough to
establish the paternity of his children. But he wanted more: a judicial
conferment of parental authority, parental custody, and an official
declaration of his childrens surname as Antonio.

Nothing is more settled than that when the law is clear and free from
ambiguity, it must be taken to mean what it says and it must be given
its literal meaning free from any interpretation.16 Respondents
position that the court can order the minors to use his surname,
therefore, has no legal basis.

Parental authority over minor children is lodged by Art. 176 on the

mother; hence, respondents prayer has no legal mooring. Since
parental authority is given to the mother, then custody over the minor
children also goes to the mother, unless she is shown to be unfit.
Now comes the matter of the change of surname of the illegitimate
children. Is there a legal basis for the court a quo to order the change
of the surname to that of respondent?
Rule 132, Sec. 19. Classes of Documents.For the purpose of their
presentation in evidence, documents are either public or private.
Public documents are:

All other writings are private.

On its face, Art. 176, as amended, is free from ambiguity. And where
there is no ambiguity, one must abide by its words. The use of the
word may in the provision readily shows that an acknowledged
illegitimate child is under no compulsion to use the surname of his
illegitimate father. The word may is permissive and operates to
confer discretion17 upon the illegitimate children.
It is best to emphasize once again that the yardstick by which policies
affecting children are to be measured is their best interest. On the
matter of childrens surnames, this Court has, time and again,
rebuffed the idea that the use of the fathers surname serves the best
interest of the minor child. In Alfon v. Republic,18 for instance, this
Court allowed even a legitimate child to continue using the surname
of her mother rather than that of her legitimate father as it serves her
best interest and there is no legal obstacle to prevent her from using
the surname of her mother to which she is entitled. In fact, in
Calderon v. Republic,19 this Court, upholding the best interest of the

132

child concerned, even allowed the use of a surname different from the
surnames of the childs father or mother. Indeed, the rule regarding
the use of a childs surname is second only to the rule requiring that
the child be placed in the best possible situation considering his
circumstances.
In Republic of the Philippines v. Capote,20 We gave due deference to
the choice of an illegitimate minor to use the surname of his mother
as it would best serve his interest, thus:

7.1.1 The illegitimate child shall use the surname of the father
if a public document is executed by the father, either at the
back of the Certificate of Live Birth or in a separate document.
7.1.2 If admission of paternity is made through a private
instrument, the child shall use the surname of the father,
provided the registration is supported by the following
documents:
xxxx

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. (Emphasis
supplied.)
An argument, however, may be advanced advocating the mandatory
use of the fathers surname upon his recognition of his illegitimate
children, citing the Implementing Rules and Regulations (IRR) of RA
9255,21 which states:

7.2. For Births Previously Registered under the Surname of

the Mother
7.2.1 If filiation has been expressly recognized by the father,
the child shall use the surname of the father upon the
submission of the accomplished AUSF [Affidavit of Use of the
Surname of the Father]. Office of Civil Registrar General (OCRG)
Administrative Order No. 1, Series of 2004, issued by the
National Statistics Office-Office of the Civil Registrar General.
Approved on May 14, 2004, published on May 18, 2004 on the
Manila Times, and took effect on June 2, 2004.
7.2.2 If filiation has not been expressly recognized by the
father, the child shall use the surname of the father upon
submission of a public document or a private handwritten
instrument supported by the documents listed in Rule 7.1.2.
7.3 Except in Item 7.2.1, the consent of the illegitimate child
is required if he/she has reached the age of majority. The
consent may be contained in a separate instrument duly
notarized.
xxxx
Rule 8.
8.1

Rule 7.
Father
7.1

Requirements for the Child to Use the Surname of the

Effects of Recognition

For Births Not Yet Registered

8.1.1 The surname of the father shall be entered as the last

name of the child in the Certificate of Live Birth. The Certificate
of Live Birth shall be recorded in the Register of Births.

For Births Not Yet Registered

133

xxxx
8.2 For Births Previously Registered under the Surname of the
Mother
8.2.1 If admission of paternity was made either at the back of
the Certificate of Live Birth or in a separate public document or
in a private handwritten document, the public document or
AUSF shall be recorded in the Register of Live Birth and the
Register of Births as follows:
The surname of the child is hereby changed from (original
surname) to (new surname) pursuant to RA 9255.
The original surname of the child appearing in the Certificate of
Live Birth and Register of Births shall not be changed or
deleted.
8.2.2
If filiation was not expressly recognized at the time of
registration, the public document or AUSF shall be recorded in
the Register of Legal Instruments. Proper annotation shall be
made in the Certificate of Live Birth and the Register of Births
as follows:

administrative agency certainly cannot amend an act of

Congress.
Thus, We can disregard contemporaneous construction where there is
no ambiguity in law and/or the construction is clearly erroneous.23
What is more, this Court has the constitutional prerogative and
authority to strike down and declare as void the rules of procedure of
special courts and quasi-judicial bodies24 when found contrary to
statutes and/or the Constitution.25 Section 5(5), Art. VIII of the
Constitution provides:
The Office of the Civil Registrar General exercises quasi-judicial
powers under Rule 13, Title 1, of NSO Administrative Order 1-93,
December 18, 1993, Implementing Rules and Regulations of Act No.
3753 and Other Laws on Civil Registration:
RULE 13.
Posting of the Pending Application.(1) A notice to the
public on the pending application for delayed registration shall be
posted in the bulletin board of the city/municipality for a period of
not less than ten (10) days.
Sec. 5.

The Supreme Court shall have the following powers:

xxxx
Acknowledged by (name of father) on (date). The surname of the
child is hereby changed from (original surname) on (date)
pursuant to RA 9255. (Emphasis supplied.)

Nonetheless, the hornbook rule is that an administrative issuance

cannot amend a legislative act. In MCC Industrial Sales Corp. v.
Ssangyong Corporation,22 We held:
After all, the power of administrative officials to promulgate
rules in the implementation of a statute is necessarily limited to
what is found in the legislative enactment itself. The
implementing rules and regulations of a law cannot extend the
law or expand its coverage, as the power to amend or repeal a
statute is vested in the Legislature. Thus, if a discrepancy
occurs between the basic law and an implementing rule or
regulation, it is the former that prevails, because the law cannot
be broadened by a mere administrative issuance an

(5)
Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice and
procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged.
Such rules shall provide a simplified and inexpensive procedure
for the speedy disposition of cases, shall be uniform for all
courts of the same grade, and shall not diminish, increase, or
modify substantive rights. Rules of procedure of special
courts and quasi-judicial bodies shall remain effective
unless disapproved by the Supreme Court. (Emphasis
supplied.)

Thus, We exercise this power in voiding the above-quoted provisions

of the IRR of RA 9255 insofar as it provides the mandatory use by
illegitimate children of their fathers surname upon the latters
recognition of his paternity.

134

To conclude, the use of the word shall in the IRR of RA 9255 is of no

moment. The clear, unambiguous, and unequivocal use of may in
Art. 176 rendering the use of an illegitimate fathers surname
discretionary controls, and illegitimate children are given the
choice on the surnames by which they will be known.

Rule 7 and Rule 8 of the Office of the Civil Registrar General

Administrative Order No. 1, Series of 2004 are DISAPPROVED and
hereby declared NULL and VOID.

At this juncture, We take note of the letters submitted by the children,

now aged thirteen (13) and fifteen (15) years old, to this Court
declaring their opposition to have their names changed to
Antonio.26 However, since these letters were not offered before and
evaluated by the trial court, they do not provide any evidentiary
weight to sway this Court to rule for or against petitioner.27 A proper
inquiry into, and evaluation of the evidence of, the childrens choice of
surname by the trial court is necessary.

Sereno
(CJ.),
Carpio,
Leonardo-De
Castro,
Peralta,
Bersamin, Del Castillo, Abad, Villarama, Jr., Perez, Reyes, PerlasBernabe and Leonen, JJ., concur.

WHEREFORE, the instant petition is PARTIALLY GRANTED. The

July 24, 2012 Decision of the Court of Appeals in CA-G.R. CV No.
96406 is MODIFIED, the dispositive portion of which shall read:
WHEREFORE, the appeal is partly GRANTED. Accordingly, the
appealed Decision of the Regional Trial Court Branch 8, Aparri
Cagayan in SP Proc. Case No. 11-4492 is MODIFIED in part and shall
hereinafter read as follows:
a. [Antonio] is ORDERED to deliver the minor children Jerard
Patrick and Andre Lewis to the custody of their mother herein
appellant, Grace Grande who by virtue hereof is hereby
awarded the full or sole custody of these minor children;

SO ORDERED.

Brion, J., On Leave.

Mendoza, J., No part.
Petition partially granted, judgment modified.
Notes.It is a settled rule that only legitimate children follow the
citizenship of the father and that illegitimate children are under the
parental authority of the mother and follow her nationality. (Go, Sr.
vs. Ramos, 598 SCRA 266 [2009])
The filing of a record on appeal is not necessary where no other
matter remains to be heard and determined by the trial court after it
issued the appealed order granting the petition for cancellation of
birth record and change of surname in the civil registry. (Republic vs.
Nishina, 634 SCRA 716 [2010])

b. [Antonio] shall have visitation rights28 at least twice a week,

and may only take the children out upon the written consent of
[Grande];
c. The parties are DIRECTED to give and share in support of the
minor children Jerard Patrick and Andre Lewis in the amount of
P30,000.00 per month at the rate of 70% for [Antonio] and 30%
for [Grande]; and
d. The case is REMANDED to the Regional Trial Court,
Branch 8 of Aparri, Cagayan for the sole purpose of
determining the surname to be chosen by the children
Jerard Patrick and Andre Lewis.

135

acknowledged or recognized by his parents, but he does not rise to the

level of a legitimate child in the manner that the legitimated child
does.
G.R. No. 105619. December 12, 1995.*
MARIA ROSARIO DE SANTOS, petitioner, vs. HON. ADORACION
G. ANGELES, JUDGE, REGIONAL TRIAL COURT OF CALOOCAN
CITY, BRANCH 121 and CONCHITA TALAG DE SANTOS,
respondents.
Civil Law; Paternity and Filiation; Marriages; Illegitimate Children; A
childs parents should not have been disqualified to marry each other
at the time of conception for him to qualify as a natural child.Article
269 of the Civil Code expressly states: Art. 269. Only natural
children can be legitimated. Children born outside wedlock of parents
who, at the time of the conception of the former, were not disqualified
by any impediment to marry each other, are natural. In other words,
a childs parents should not have been disqualified to marry each
other at the time of conception for him to qualify as a natural child.
Same; Same; Same; Same; The marriage under question is considered
void from the beginning because bigamous, contracted when a prior
valid marriage was still subsisting.In the case at bench, the
marriage under question is considered void from the beginning
because bigamous, contracted when a prior valid marriage was still
subsisting. It follows that the children begotten of such union cannot
be considered natural children proper for at the time of their
conception, their parents were disqualified from marrying each other
due to the impediment of a prior subsisting marriage.
Same; Same; Same; Same; The status of a marriage determines in large
part the filiation of its resultant issue.At the core of the institution of
legitimacy held sacrosanct by Spanish tradition and culture, lies the
inviolable social institution known as marriage. This union, absent
any formal or substantial defect or of any vice of consent, is virtually
adamantine. On the whole, the status of a marriage determines in
large part the filiation of its resultant issue. Thus, a child born within
a valid marriage is legitimate, while one born outside of wedlock is
illegitimate. If, however, the latters parents were, at the time of the
childs conception, not legally barred from marrying each other and
subsequently do so, the childs filiation improves as he becomes
legitimized and the legitimated child eventually enjoys all the
privileges and rights associated with legitimacy. Without such
marriage, the natural childs rights depend on whether he is

Same; Same; Same; Same; Legitimate and legitimated children are

entitled to use of surname, succession and support.The Civil Code
provides three rights which, in varying degrees, are enjoyed by
children, depending on their filiation: use of surname, succession,
and support. Legitimate children and legitimated children are entitled
to all three. Thus, they shall principally use the surname of the
father, and shall be entitled to support from their legitimate
ascendants and descendants, as well as to a legitime consisting of
one-half of the hereditary estate of both parents, and to other
successional rights, such as the right of representation. These rights
as effects of legitimacy cannot be renounced.
Same; Same; Same; Same; Natural children recognized by both parents
and natural children by legal fiction shall principally use the surname
of the father.Natural children recognized by both parents and
natural children by legal fiction shall principally use the surname of
the father. If a natural child is recognized by only one parent, the
child shall follow the surname of such recognizing parent. Both types
of children are entitled to receive support from the parent recognizing
them. They also cannot be deprived of their legitime equivalent to onehalf of that pertaining to each of the legitimate children or
descendants of the recognizing parent, to be taken from the free
disposable portion of the latters estate.
Same; Same; Same; Same; Unrecognized illegitimate children not
entitled to any of the rights above mentioned.Unrecognized
illegitimate children are not entitled to any of the rights above
mentioned.
Same; Same; Same; Same; Legitimation; Legitimation is a privilege
available only to natural children proper.Legitimation is not a right
which is demandable by a child. It is a privilege, available only
tonatural children proper, as defined under Art. 269.
HERMOSISIMA, JR., J., Separate and Concurring Opinion:
Civil Law; Paternity and Filiation; Marriages; Illegitimate Children; The
law tenders in no unpretentious terms the basis to rule that private
respondents children, being adulterous children, have no right to be
legitimated under the New Civil Code.All told, the law tenders to us

136

in no unpretentious terms the basis to rule that private respondents

children, being adulterous children, have no right to be legitimated
under the New Civil Code. Such a ruling is not only in accord with the
explicit, unequivocal language of Article 269 but more importantly
animates and upholds the public policy as regards the institution of
marriage as the foundation of society.
PETITION for certiorari to review a decision of the Regional Trial Court
of Caloocan City, Br. 121.
The facts are stated in the opinion of the Court.
Antonio Quintos Law Office for petitioner.
Cuevas, De la Cuesta & De las Alas for private respondent.
ROMERO, J.:
Can natural children by legal fiction be legitimized?
There being no explicit provision of law in point, the Court is called
upon to cast illumination in a gray area even as it fills up
unintentional interstices in the fabric of Civil Law with overlays of
philosophical, historical and sociological strands. For an
understanding of how the issue arose, we now proceed to unravel the
pertinent factual background.

Antonio died intestate leaving properties with an estimated value of

P15,000,000.00.
On May 15, 1981, private respondent went to court 1 asking for the
issuance of letters of administration in her favor in connection with
the settlement of her late husbands estate. She alleged, among other
things, that the decedent was survived by twelve legitimate heirs,
namely, herself, their ten surviving children, and petitioner. There
being no opposition, her petition was granted.
After six years of protracted intestate proceedings, however, petitioner
decided to intervene. Thus, in a motion she filed sometime in
November 1987, she argued inter alia that private respondents
children were illegitimate. This was challenged by private respondent
although the latter admitted during the hearing that all her children
were born prior to Sofias death in 1967.
On November 14, 1991, after approval of private respondents account
of her administration, the court a quo passed upon petitioners
motion. The court, citing the case of Francisco H. Tongoy, et al. v.
Court of Appeals, et al. (23 SCRA 99 [1983]), declared private
respondents ten children legitimated and thereupon instituted and
declared them, along with petitioner and private respondent, as the
heirs of Antonio de Santos.
Petitioner sought a reconsideration of said order but this was denied
in the courts order dated January 9, 1992.

On February 7, 1941, Dr. Antonio de Santos married Sofia Bona,

which union was blessed with a daughter, herein petitioner Maria
Rosario de Santos. After some time, their relationship became
strained to the breaking point. Thereafter, Antonio fell in love with a
fellow doctor, Conchita Talag, private respondent herein. Antonio
sought a formal dissolution of his first marriage by obtaining a divorce
decree from a Nevada court in 1949.

Hence, she filed the instant petition for certiorari on June 16, 1992,
contending that since only natural children can be legitimized, the
trial court mistakenly declared as legitimated her half brothers and
sisters.

Obviously aware that said decree was a worthless scrap of paper in

our jurisdiction which then, as now, did not recognize divorces,
Antonio proceeded to Tokyo, Japan in 1951 to marry private
respondent, with whom he had been cohabiting since his de facto
separation from Sofia. This union produced eleven children. On
March 30, 1967, Sofia died in Guatemala. Less than a month later, on
April 23, 1967, Antonio and private respondent contracted a marriage
in Tagaytay City celebrated under Philippine laws. On March 8, 1981,

Article 269 of the Civil Code expressly states:

This argument is tenable.

Art. 269. Only natural children can be legitimated. Children born

outside wedlock of parents who, at the time of the conception of the
former, were not disqualified by any impediment to marry each other,
are natural.

137

In other words, a childs parents should not have been disqualified to

marry each other at the time of conception for him to qualify as a
natural child.

fiction of law to be equated with acknowledged natural children and,

consequently, enjoying the status, rights and obligations of the latter.
Does this cluster of rights include the right to be legitimated?

In the case at bench, there is no question that all the children born to
private respondent and deceased Antonio de Santos were conceived
and born when the latters valid marriage to petitioners mother was
still subsisting. That private respondent and the decedent were
married abroad after the latter obtained in Nevada, U.S.A. a decree of
divorce from his legitimate wife does not change this fact, for a divorce
granted abroad was not recognized in this jurisdiction at the time.
Evidently, the decedent was aware of this fact, which is why he had to
have the marriage solemnized in Tokyo, outside of the Philippines. It
may be added here that he was likewise aware of the nullity of the
Tokyo marriage for after his legitimate, though estranged wife died, he
hastily contracted another marriage with private respondent, this time
here in Tagaytay.

Under the Civil Code, there exists a hierarchy of children classified on

the basis of rights granted by law, which must be preserved by strictly
construing the substantive provisions of the law in force.

It must be noted that while Article 269, which falls under the general
heading of Paternity and Filiation, specifically deals with
Legitimated Children, Article 89, a provision subsumed under the
general title on Marriage, deals principally with void and voidable
marriages and secondarily, on the effects of said marriages on their
offspring. It creates another category of illegitimate children, those
who are conceived or born of marriages which are void from the
beginning, but because there has been a semblance of marriage, they
are classified as acknowledged natural children and, accordingly,
enjoy the same status, rights and obligations as such kind of
children. In the case at bench, the marriage under question is
considered void from the beginning because bigamous, contracted
when a prior valid marriage was still subsisting. It follows that the
children begotten of such union cannot be considered natural
children proper for at the time of their conception, their parents were
disqualified from marrying each other due to the impediment of a
prior subsisting marriage.
What term should then be coined to distinguish them from natural
children proper (those born outside of wedlock of parents who, at the
time of the conception of the former, were not disqualified by any
impediment to marry each other)? A legal fiction had to be resorted
to, that device contrived by law to simulate a fact or condition which,
strictly and technically speaking, is not what it purports to be. In this
case, the term natural children by legal fiction was invented, thus
giving rise to another category of illegitimate children, clearly not to be
confused with natural children as defined under Art. 269 but by

Under the prevailing Civil Code (which may be considered old in

light of the new provisions of the Family Code on Persons), much
emphasis is laid on the classification of children vis-a-vis their
parents, and the corresponding rights they are entitled to under the
law. Thus, the title on Paternity and Filiation devotes two whole
chapters to legitimate children alone, and one chapter on those
deemed by law to be possessed of the rights of the former, such as
legitimated children, because of their compliance with certain
requisites laid down by law; two other chapters deal with illegitimate
children composed of recognized natural children, and those other
than natural, or spurious, whether recognized or not. The wellordered delineation of such distinctions among these groups
demonstrate a clear intent on the part of the framers of the Civil Code
to compartmentalize and separate one from the other, for
legitimacy/illegitimacy determines the substantive rights accruing to
the different categories of children.
It must be noted that before said Code was enacted, other classes of
illegitimate children were recognized, such as, manceres or the
offspring of prostitutes and the sacrilegious or children of those who
had received Holy Orders. Subsequently, the Civil Code, in an effort to
keep in step with modern times, limited illegitimate filiation to those
which are incestuous, adulterous and illicit.
At the core of the institution of legitimacy held sacrosanct by Spanish
tradition and culture, lies the inviolable social institution known as
marriage. This union, absent any formal or substantial defect or of
any vice of consent, is virtually adamantine. On the whole, the status
of a marriage determines in large part the filiation of its resultant
issue. Thus, a child born within a valid marriage is legitimate, while
one born outside of wedlock is illegitimate. If, however, the latters
parents were, at the time of the childs conception, not legally barred
from marrying each other and subsequently do so, the childs filiation
improves as he becomes legitimized and the legitimated child
eventually enjoys all the privileges and rights associated with
legitimacy. Without such marriage, the natural childs rights depend
on whether he is acknowledged or recognized by his parents, but he

138

does not rise to the level of a legitimate child in the manner that the
legitimated child does.

of the legitime of an acknowledged natural child or two-fifths that of

each legitimate child.13

A child conceived or born of a marriage which is void ab initio or one

which is declared a nullity is illegitimate since there is no marriage to
speak of, but it is the law which accords him the rights of an
acknowledged natural child.

It must also be observed that while the legitime of a legitimate child is

fairly secured by law,14 the legitime of any recognized illegitimate
child, taken as it is from the free portion of the hereditary estate
which the child shares with the surviving spouse, may be reduced if it
should exceed said portion.15

Finally, there are illegitimate children who are referred to as

spurious or derisively denominated as bastards because of their
doubtful origins. There is no marriagevalid or otherwisewhich
would give any semblance of legality to the childs existence. Nothing
links child to parent aside from the information appearing in the birth
certificate. When such child is recognized by one or both parents, he
acquires certain rights nowhere approaching those of his legitimate
counterparts.
The Civil Code provides three rights which, in varying degrees, are
enjoyed by children, depending on their filiation: use of surname,
succession, and support.
Legitimate children and legitimated children are entitled to all three. 2
Thus, they shall principally use the surname of the father, 3 and
shall be entitled to support from their legitimate ascendants and
descendants,4 as well as to a legitime consisting of one-half of the
hereditary estate of both parents,5 and to other successional rights,
such as the right of representation. These rights as effects of
legitimacy cannot be renounced.6
Natural children recognized by both parents and natural children by
legal fiction shall principally use the surname of the father. 7 If a
natural child is recognized by only one parent, the child shall follow
the surname of such recognizing parent.8 Both types of children are
entitled to receive support from the parent recognizing them. 9 They
also cannot be deprived of their legitime equivalent to one-half of that
pertaining to each of the legitimate children or descendants of the
recognizing parent, to be taken from the free disposable portion of the
latters estate.10
Recognized illegitimate children other than natural, or spurious
issues, are, in their minority, under the parental authority of their
mothers and, naturally, take the latters surname.11 The only support
which they are entitled to is from the recognizing parent, 12 and their
legitime, also to be taken from the free portion, consists of four-fifths

Unrecognized illegitimate children are not entitled to any of the rights

above mentioned.16
These distinctions gain more relevance if we were to consider that
while a legitimated child may enjoy the same successional rights
granted to legitimate children, a natural child by legal fiction cannot
rise beyond that to which an acknowledged natural child is entitled,
insofar as his hereditary rights are concerned.
It is thus incongruous to conclude, as private respondent maintains,
that petitioners half siblings can rise to her level by the fact of being
legitimized, for two reasons: First, they failed to meet the most
important requisite of legitimation, that is, that they be natural
children within the meaning of Article 269; second, natural children
by legal fiction cannot demand that they be legitimized simply
because it is one of the rights enjoyed by acknowledged natural
children.
It may be argued that legitimation is a right vouchsafed to
acknowledged natural children and, therefore, by the same token, to
natural children by legal fiction. This conclusion is arrived at through
a syllogism as simple as it is deceptive, which runs as follows:
The respondents children are natural children by legal fiction.
Therefore, they have the same status, rights and obligations as
acknowledged natural children.
Acknowledged natural children have the right to be legitimated.
Ergo, respondents children have the right to be legitimated (as in fact
they were deemed legitimated by the subsequent valid marriage of
their parents in the Philippines in 1967).

139

The above line of reasoning follows the Euclidian geometric

proposition that things equal to the same thing are equal to each
other. This may hold true in the realm of instructional, as opposed to
descriptive science, where the former calls for the application of
absolute, mathematical rules with precision but not to the latter,
particularly those which deal with the social sciences where human
relationships are central to a study whose main concern is not to
leave out anything of significance. The former deals with inanimate
things, those which a scientist has described as the dead aspect of
nature, excluding all factors regarded as superfluous to obtaining
absolute results and nothing more. It does not concern itself so much
with the whole truth as with those aspects or parts only through
which the inexorable result can be obtained. To apply the strict rules
of syllogism, where the basic premise is defective, to the arena of
paternity and filiation, especially in the determination of the status
and rights of the different lands of illegitimate children vis-a-vis the
legitimate ones, is bound to spawn mischief and results never
intended by the framers of the provisions of the law under review.

Civil Law, frowns upon illegal relations such that the benefits of
legitimation under Chapter 3 of Title VIII do not extend, nor were they
intended to extend, to natural children by legal fiction. Article 269
itself clearly limits the privilege of legitimation to natural children as
defined thereunder. There was, therefore, from the outset, an intent to
exclude children conceived or born out of illicit relations from the
purview of the law.

Pursued to its logical, undeviating conclusion, it may eventually be

postulated that adulterous children shall enjoy the status, rights and
obligations of legitimate children, a doctrine which no moral
philosophy under our social and cultural milieu can countenance.

The provisions of law invoked by private respondent are couched in

simple and unmistakable language, not at all subject to
interpretation, and they all point to the correctness of petitioners
claim. If it should be asserted that we now trench on a gray area of
law that calls for interpretation, or a lacuna that cries for filling up,
then we have to pierce the shroud unintentionally created by the
letter of the law and expose its spirit as evincing intent, in this case
one which decidedly favors legitimacy over illegitimacy. The hierarchy
of children so painstakingly erected by law and the corresponding
gradation of their rights may conceivably be shattered by elevating
natural children by legal fiction who are incontestably illegitimate
children to the level of natural children proper, whose filiation would
otherwise be legitimate had their parents blessed their union with a
valid marriage.

This conclusion not only presumes that children other than those
who are natural can be legitimized in the first place, but also grants
acknowledged natural children (and, consequently, natural children
by legal fiction) a right to be legitimized when no such right exists.
Legitimation is not a right which is demandable by a child. It is a
privilege, available only to natural children proper, as defined under
Art. 269. Although natural children by legal fiction have the same
rights as acknowledged natural children, it is a quantum leap in the
syllogism to conclude that, therefore, they likewise have the right to
be legitimated, which is not necessarily so, especially, as in this case,
when the legally existing marriage between the childrens father and
his estranged first wife effectively barred a subsequent marriage
between their parents.
The question that must be confronted next is: How are the offspring of
the second union affected by the first wifes death and the ensuing
celebration of a valid marriage between her widower and his
ostensible second wife?
Natural children by legal fiction cannot be legitimized in this fashion.
Our archaic law on family relations, patterned as it is after Spanish

Another point to be considered is that although natural children can

be legitimized, and natural children by legal fiction enjoy the rights of
acknowledged natural children, this does not necessarily lead to the
conclusion that natural children by legal fiction can likewise be
legitimized. As has been pointed out, much more is involved here than
the mere privilege to be legitimized. The rights of other children, like
the petitioner in the case at bench, may be adversely affected as her
testamentary share may well be reduced in the event that her ten
surviving half siblings should be placed on par with her, when each of
them is rightfully entitled to only half of her share.

Finally, attention must be drawn to the fact that this case has been
decided under the provisions of the Civil Code, not the Family Code
which now recognizes only two classes of children: legitimate and
illegitimate. Natural children by legal fiction are nothing if not pure
fiction.
WHEREFORE, the instant petition is hereby GRANTED. The assailed
orders of the court a quo dated November 14, 1991 and January 9,
1992, are NULLIFIED and SET ASIDE. Petitioner Maria Rosario de
Santos is hereby declared the SOLE LEGITIMATE CHILD of the

140

decedent Antonio de Santos and, as such, entitled to all the rights

accorded to her by law.
SO ORDERED.

141

This Court will not stand in the way of the reunification of mother and
son.
G.R. No. 157043. February 2, 2007.*
REPUBLIC OF THE PHILIPPINES, petitioner, vs. TRINIDAD R.A.
CAPOTE, respondent.
Names; Change of Name; The subject of rights must have a fixed
symbol for individualization which serves to distinguish him from all
othersthis symbol is his name.The subject of rights must have a
fixed symbol for individualization which serves to distinguish him
from all others; this symbol is his name. Understandably, therefore,
no person can change his name or surname without judicial
authority. 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.
Same; Same; The appropriate remedy for change of name is covered by
Rule 103, a separate and distinct proceeding from Rule 108 on mere
cancellation and correction of entries in the civil registry.The Rules of
Court provides the requirements and procedure for change of name.
Here, the appropriate remedy is covered by Rule 103, 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).
Same; Same; An illegitimate child never recognized by his father is
entitled to change his namea change of name will erase the
impression that he was ever recognized by his father, and it is also to
his best interest as it will facilitate his mothers intended petition to
have him join her in the United States; The Supreme Court will not
stand in the way of reunification of mother and son.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.

Adversarial Proceedings; Words and Phrases; A proceeding is

adversarial where seeking relief has given legal warning to the other
party and afforded the latter an opportunity to contest it.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.
Respondent gave notice of the petition through publication as
required by the rules. 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.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
The Solicitor General for petitioner.
Public Attorneys Office for respondent.
CORONA, J.:
This petition for review on certiorari 1 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 to Giovanni Nadores on
September 9, 1998. In Special Proceeding No. R-481,3 Capote as
Giovannis guardian ad litem averred:
x x x

xxx

xxx

1. 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,

142

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] x x x x x x
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];

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

1. 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 x x x x x x x x x;
2. 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;
3. 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
4. 9. The change of name [from] GIOVANNI N. GALLAMASO to
GIOVANNI NADORES will be for the benefit of the minor.

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. Labrador 11 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

2.

3.

4.
5.

xxx

xxx

Since there was no opposition to the petition, respondent moved for

leave of court to present her evidence ex parte before a courtappointed 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

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 seek-

x x x4
_______________

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

Annex D, Rollo, pp. 30-32.

Annex A, Rollo, pp. 18-23.

143

10

Petition, Rollo, p. 9.

11

364 Phil. 934; 305 SCRA 438 (1999).

12

Id.

When Giovanni was born in 1982 (prior to the enactment and

effectivity of the Family Code of the Philippines), 19 the pertinent
provision of the Civil Code then as regards his use of a surname, read:

Tolentino, COMMENTARIES AND JURISPRUDENCE ON THE CIVIL

CODE OF THE PHILIPPINES 1 (1990), Central Professional Books, Inc.,
Quezon City, Philippines, p. 672.
13

CIVIL CODE, Art. 376. There is now a new law allowing change of
name through administrative proceedings. Please see RA 9048 and
AO No. 1 S. 2001. With the amendment by RA 9048, a person
desiring to change his first name does not need to file the
14

81
VOL. 514, FEBRUARY 2, 2007
Republic vs. Capote

81

ing 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

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. x x x x x x x x x (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 Wang 20 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.21
The foregoing discussion establishes the significant connection of a
persons name to his identity, his status in relation to his parents and

144

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.
Puno (C.J., Chairperson), Sandoval-Gutierrez, Azcuna and Garcia,
JJ., concur.
Petition denied, judgment affirmed.

145

ADOPTION

sustain the validity of the proceeding; to refuse would be to indulge in

such a narrow and technical construction of the statute as to defeat
its intention and beneficial results or to invalidate proceedings where
every material requirement of the statute was complied with.

G.R. No. 92326. January 24, 1992.*

REPUBLIC OF THE PHILIPPINES, petitioner, vs. COURT OF
APPEALS and ZENAIDA C. BOBILES, respondents.
Civil Law; Family Code; Vested right defined; A vested right is one
whose existence, effectivity and extent does not depend upon events
foreign to the will of the holder.A vested right is one whose existence,
effectivity and extent does not depend upon events foreign to the will
of the holder. The term expresses the concept of present fixed interest
which in right reason and natural justice should be protected against
arbitrary State action, or an innately just and imperative right which
enlightened free society, sensitive to inherent and irrefragable
individual rights, cannot deny. Vested rights include not only legal or
equitable title to the enforcement of a demand, but also an exemption
from new obligations created after the right has vested.
Remedial Law; Special Proceedings; Jurisdiction; Jurisdiction of the
court is determined by the statute in force at the time of the
commencement of the action.When private respondent filed her
petition in Special Proceeding No. 1386, the trial court acquired
jurisdiction thereover in accordance with the governing law.
Jurisdiction being a matter of substantive law, the established rule is
that the jurisdiction of the court is determined by the statute in force
at the time of the commencement of the action. We do not find in the
present case such facts as would constitute it as an exception to the
rule.
Same; Same; Adoption; It is a settled rule that adoption statutes, as
well as matters of procedure leading up to adoption, should be liberally
construed to carry out the beneficent purposes of the adoption
institution and to protect the adopted child in the rights and privileges
coming to it as a result of adoption.We see no reason why the
following doctrines in American law should not apply to this case and,
for that matter, in our jurisdiction. It is a settled rule therein that
adoption statutes, as well as matters of procedure leading up to
adoption, should be liberally construed to carry out the beneficent
purposes of the adoption institution and to protect the adopted child
in the rights and privileges coming to it as a result of the adoption.
The modern tendency of the courts is to hold that there need not be
more than a substantial compliance with statutory requirements to

Same; Same; Same; Rule that technical rules of pleading should not be
stringently applied to adoption proceedings.In support of this rule it
is said that it is not the duty of the courts to bring the judicial
microscope to bear upon the case in order that every slight defect may
be enlarged and magnified so that a reason may be found for
declaring invalid an act consummated years before, but rather to
approach the case with the inclination to uphold such acts if it is
found that there was a substantial compliance with the statute. The
technical rules of pleading should not be stringently applied to
adoption proceedings, and it is deemed more important that the
petition should contain facts relating to the child and its parents,
which may give information to those interested, than that it should be
formally correct as a pleading. Accordingly, it is generally held that a
petition will confer jurisdiction if it substantially complies with the
adoption statute, alleging all facts necessary to give the court
jurisdiction.
Same; Same; Same; Discretion; Case at bar; The trial court and
respondent court acted correctly in granting the petition for adoption.
In determining whether or not to set aside the decree of adoption the
interests and welfare of the child are of primary and paramount
consideration. The welfare of a child is of paramount consideration in
proceedings involving its custody and the propriety of its adoption by
another, and the courts to which the application for adoption is made
is charged with the duty of protecting the child and its interests and,
to bring those interests fully before it, it has authority to make rules
to accomplish that end. Ordinarily, the approval of the adoption rests
in the sound discretion of the court. This discretion should be
exercised in accordance with the best interests of the child, as long as
the natural rights of the parents over the child are not disregarded. In
the absence of a showing of grave abuse, the exercise of this
discretion by the approving official will not be disturbed. In the case
at bar, the rights concomitant to and conferred by the decree of
adoption will be for the best interests of the child. His adoption is with
the consent of his natural parents. The representative of the
Department of Social Welfare and Development unqualifiedly
recommended the approval of the petition for adoption and the trial
court dispensed with the trial custody for several commendatory
reasons, especially since the child had been living with the adopting
parents since infancy. Further, the said petition was with the sworn

146

written consent of the children of the adopters. The trial court and
respondent court acted correctly in granting the petition for adoption
and we find no reason to disturb the same. As found and aptly stated
by respondent court: "Given the facts and circumstances of the case
and considered in the light of the foregoing doctrine, We are of the
opinion and so hold that the decree of adoption issued by the court a
quo would go along way towards promoting the welfare of the child
and the enhancement of his opportunities for a useful and happy life."

Compliance with the jurisdictional requirements having been proved

at the hearing, the testimonies of herein private respondent, together
with that of her husband, Dioscoro Bobiles, and one Ma. Luz
Salameno of the Department of Social Welfare and Development were
taken and admitted in the proceedings.

PETITION for review on certiorari of the decision of the Court of

Appeals.

ACCORDINGLY, it is declared that henceforth, the minor child,

JASON CCNDAT, be freed from all legal obligations of obedience and
maintenance with respect to his natural parents, and be, to all intents
and purposes, the child of the spouses Dioscoro and Zenaida Bobiles,
and the surname of the child be changed to "Bobiles" which is the
surname of the petitioner.

The facts are stated in the opinion of the Court.

The Solicitor General for petitioner.
Mariano B. Miranda for private respondent.
REGALADO, J.:
Dissatisfied with the decision of respondent Court of Appeals
promulgated on February 20,19901 which affirmed in toto the decision
of Branch 2 of the Regional Trial Court of Legaspi City 2 granting the
petition of herein private respondent to adopt the minor Jason
Condat, petitioner seeks the reversal thereof in the present petition for
review on certiorari.

On March 20,1988, the trial court rendered judgment disposing as

follows:

Furnish the Office of the Solicitor General, Manila, the Department of

Social Welfare and Development, Regional Office, Region V, Legaspi
City, and the Local Civil Registrar of Tiwi, Albay, with copies of this
decision.6
Herein petitioner appealed to the Court of Appeals which, as earlier
stated, affirmed the aforesaid decision of the court below. Hence, this
present petition with the following assignment of errors:

On February 2,1988, Zenaida Corteza Bobiles filed a petition to adopt

Jason Condat, then six (6) years old and who had been living with her
family since he was four (4) months old, before the Regional Trial
Court of Legaspi City, docketed therein as Special Proceeding No.
1386.3

1. 1. The Honorable Court of Appeals erred in ruling that the

Family Code cannot be applied retroactively to the petition for
adoption filed by Zenaida C. Bobiles; and
2. 2. The Honorable Court of Appeals erred in affirming the trial
court's decision which granted the petition to adopt Jason
Condat in favor of spouses Dioscoro Bobiles and Zenaida C.
Bobiles.7

The court a quo, finding the petition to be sufficient in form and

substance, issued an order dated February 15, 1988 setting the
petition for hearing on March 28,1988.4 The order was duly
published, with copies thereof seasonably served on the Solicitor
General; Assistant Provincial Fiscal Mediavillo, Jr. of Albay; Salvador
Condat, father of the child; and the social worker assigned to the
court. A copy of said order was posted on the bulletin board of the
court and in the other places it had required for that purpose. Nobody
appeared to oppose the petition.5

The petition for adoption was filed by private respondent Zenaida C.

Bobiles on February 2, 1988, when the law applicable was
Presidential Decree No. 603, the Child and Youth Welfare Code. Under
said code, a petition for adoption may be filed by either of the spouses
or by both of them. However, after the trial court rendered its decision
and while the case was pending on appeal in the Court of Appeals,
Executive Order No. 209, the Family Code, took effect on August 3,
1988. Under the said new law, joint adoption by husband and wife is
mandatory.

147

On the foregoing consideration, petitioner contends that the petition

for adoption should be dismissed outright as it was filed solely by
private respondent without joining her husband, in violation of Article
185 of the Family Code which requires joint adoption by the spouses.
It argues that the Family Code must be applied retroactively to the
petition filed by Mrs. Bobiles, as the latter did not acquire a vested
right to adopt Jason Condat by the mere filing of her petition for
adoption. We are not persuaded.
Preliminarily, we observe that petitioner's theory implies that the noninclusion of Dioscoro Bobiles as a co-petitioner is a jurisdictional
defect, hence its prayer for an outright dismissal on that score. It
could not be taking exception only on the ground of non-joinder since
petitioner must be aware that nonjoinder is not a ground for the
dismissal of an action or a special proceeding. 8 We further apprehend
that this objection has been raised for the first time on appeal in
respondent court. Nonetheless, we shall clarify petitioner's misgivings
as postulated in its aforestated assignment of errors.
Article 246 of the Family Code provides for retroactive effect of
appropriate relevant provisions thereof, subject to the qualification
that such retrospective application will not prejudice or impair vested
or acquired rights in accordance with the Civil Code or other laws.
A vested right is one whose existence, effectivity and extent does not
depend upon events foreign to the will of the holder. 9 The term
expresses the concept of present fixed interest which in right reason
and natural justice should be protected against arbitrary State action,
or an innately just and imperative right which enlightened free
society, sensitive to inherent and irrefragable individual rights, cannot
deny.10 Vested rights include not only legal or equitable title to the
enforcement of a demand, but also an exemption from new obligations
created after the right has vested.11
Under the Child and Youth Welfare Code, private respondent had the
right to file a petition for adoption by herself, without joining her
husband therein. When Mrs. Bobiles filed her petition, she was
exercising her explicit and unconditional right under said law. Upon
her filing thereof, her right to file such petition alone and to have the
same proceed to final adjudication, in accordance with the law in
force at the time, was already vested and cannot be prejudiced or
impaired by the enactment of a new law.
When private respondent filed her petition in Special Proceeding No.
1386, the trial court acquired jurisdiction thereover in accordance

with the governing law. Jurisdiction being a matter of substantive law,

the established rule is that the jurisdiction of the court is determined
by the statute in force at the time of the commencement of the
action.12 We do not find in the present case such facts as would
constitute it as an exception to the rule.
The first error assigned by petitioner warrants a review of applicable
local and foreign jurisprudence. For that purpose, we start with the
premise that Article 185 of the Family Code is remedial in nature.
Procedural statutes are ordinarily accorded a retrospective
construction in the sense that they may be applied to pending actions
and proceedings, as well as to future actions. However, they will not
be so applied as to defeat procedural steps completed before their
enactment.13
Procedural matters are governed by the law in force when they arise,
and procedural statutes are generally retroactive in that they apply to
pending proceedings and are not confined to those begun after their
enactment although, with respect to such pending proceedings, they
affect only procedural steps taken after their enactment. 14
The rule that a statutory change in matters of procedure will affect
pending actions and proceedings, unless the language of the act
excludes them from its operation, is not so extensive that it may be
used to validate or invalidate proceedings taken before it goes into
effect, since procedure must be governed by the law regulating it at
the time the question of procedure arises.15
The jurisdictional, as distinguished from the purely procedural,
aspect of a case is substantive in nature and is subject to a more
stringent rule. A petition cannot be dismissed by reason of failure to
comply with a law which was not yet in force and effect at the time. As
long as the petition for adoption was sufficient in form and substance
in accordance with the law in governance at the time it was filed, the
court acquires jurisdiction and retains it until it fully disposes of the
case.16 To repeat, the jurisdiction of the court is determined by the
statute in force at the time of the commencement of the action. Such
jurisdiction of a court, whether in criminal or civil cases, once it
attaches cannot be ousted by subsequent happenings or events,
although of a character which would have prevented jurisdiction from
attaching in the first instance.17
On the second issue, petitioner argues that, even assuming that the
Family Code should not apply retroactively, the Court of Appeals
should have modified the trial court's decision by granting the

148

adoption in favor of private respondent Zenaida C. Bobiles only, her

husband not being a petitioner. We do not consider this as a tenable
position and, accordingly, reject the same.
Although Dioscoro Bobiles was not named as one of the petitioners in
the petition for adoption filed by his wife, his affidavit of consent,
attached to the petition as Annex "B" and expressly made an integral
part thereof, shows that he himself actually joined his wife in
adopting the child. The pertinent parts of his written consent read as
follows:
xxx
1. 2. That my wife, ZENAIDA O. CORTEZA BOBILES and I
mutually desire to adopt as our child, a boy named JASON
CONDAT, still a minor being six (6) years old, likewise residing
at 18 C. Imperial Street, Legaspi City, Albay, also in the
Philippines;
2. 3. That we are filing the corresponding Petition for Adoption of
said minor child, JASON CONDAT, before the Juvenile and
Domestic Relations court, now the Regional Trial Court in
Legaspi City, Albayin the Philippines;
1. 4. That I, Dioscoro C. Bobiles as the husband and father, am
giving my lawful consent to this adoption of said minor child,
JASON CONDAT;
2. 5. That further, my wife ZENAIDA O. CORTEZA BOBILES, and
I have continuously reared and cared for this minor child,
JASON CONDAT since birth;
3. 6. That as a result thereof, my wife and I have developed a
kind of maternal and paternal love for the boy as our very own,
exercising therein the care, concern and diligence of a good
father toward him;
4. 7. That I am executing this document, an AFFIDAVIT OF
CONSENT for whatever it is worth in the premises as to the
matter of adoption of this minor child, JASON CONDAT, by my
wife ZENAIDA O. CORTEZA BOBILES and by me, DIOSCORO
C. BOBILES, in any court of justice; (Emphasis supplied.)18
xxx
The foregoing declarations, and his subsequent confirmatory
testimony in open court, are sufficient to make him a co-petitioner.
Under the circumstances then obtaining, and by reason of his foreign

residence, he must have yielded to the legal advice that an affidavit of

consent on his part sufficed to make him a party to the petition. This
is evident from the text of his affidavit. Punctiliousness in language
and pedantry in the formal requirements should yield to and be
eschewed in the higher considerations of substantial justice. The
future of an innocent child must not be compromised by arbitrary
insistence of rigid adherence to procedural rules on the form of
pleadings.
We see no reason why the following doctrines in American law should
not apply to this case and, for that matter, in our jurisdiction. It is a
settled rule therein that adoption statutes, as well as matters of
procedure leading up to adoption, should be liberally construed to
carry out the beneficent purposes of the adoption institution and to
protect the adopted child in the rights and privileges coming to it as a
result of the adoption.19
The modern tendency of the courts is to hold that there need not be
more than a substantial compliance with statutory requirements to
sustain the validity of the proceeding; to refuse would be to indulge in
such a narrow and technical construction of the statute as to defeat
its intention and beneficial results or to invalidate proceedings where
every material requirement of the statute was complied with.
In support of this rule it is said that it is not the duty of the courts to
bring the judicial microscope to bear upon the case in order that every
slight defect may be enlarged and magnified so that a reason may be
found for declaring invalid an act consummated years before, but
rather to approach the case with the inclination to uphold such acts if
it is found that there was a substantial compliance with the statute. 20
The technical rules of pleading should not be stringently applied to
adoption proceedings, and it is deemed more important that the
petition should contain facts relating to the child and its parents,
which may give information to those interested, than that it should be
formally correct as a pleading. Accordingly, it is generally held that a
petition will confer jurisdiction if it substantially complies with the
adoption statute, alleging all facts necessary to give the court
jurisdiction.21
In determining whether or not to set aside the decree of adoption the
interests and welfare of the child are of primary and paramount
consideration.22 The welfare of a child is of paramount consideration
in proceedings involving its custody and the propriety of its adoption
by another, and the courts to which the application for adoption is
made is charged with the duty of protecting the child and its interests

149

and, to bring those interests fully before it, it has authority to make
rules to accomplish that end.23 Ordinarily, the approval of the
adoption rests in the sound discretion of the court. This discretion
should be exercised in accordance with the best interests of the child,
as long as the natural rights of the parents over the child are not
disregarded. In the absence of a showing of grave abuse, the exercise
of this discretion by the approving official will not be disturbed. 24

Melencio-Herrera (Chairman), Paras, Padilla and Nocon, JJ., concur.

Petition denied.
Note.Jurisdiction once acquired is not lost upon instance of the
parties, and continues until the case is terminated. (Robles vs. House
of Representatives Electoral Tribunal, 181 SCRA 780.)

In the case at bar, the rights concomitant to and conferred by the

decree of adoption will be for the best interests of the child. His
adoption is with the consent of his natural parents.25 The
representative of the Department of Social Welfare and Development
unqualifiedly recommended the approval of the petition for adoption 26
and the trial court dispensed with the trial custody for several
commendatory reasons, especially since the child had been living with
the adopting parents since infancy. 27 Further, the said petition was
with the sworn written consent of the children of the adopters.
The trial court and respondent court acted correctly in granting the
petition for adoption and we find no reason to disturb the same. As
found and aptly stated by respondent court: "Given the facts and
circumstances of the case and considered in the light of the foregoing
doctrine,28 We are of the opinion and so hold that the decree of
adoption issued by the court a quo would go a long way towards
promoting the welfare of the child and the enhancement of his
opportunities for a useful and happy life."29
Adoption statutes, being humane and salutary, hold the interests and
welfare of the child to be of paramount consideration. They are
designed to provide homes, parental care and education for
unfortunate, needy or orphaned children and give them the protection
of society and family in the person of the adopted, as well as to allow
childless couples or persons to experience the joys of parenthood and
give them legally a child in the person of the adopted for the
manifestation of their natural parental instincts. Every reasonable
intendment should be sustained to promote and fulfill these noble
and compassionate objectives of the law.30
WHEREFORE, the instant petition is hereby DENIED.
SO ORDERED.

150

G.R. No. 105308. September 25, 1998.*

HERBERT CANG, petitioner, vs. COURT OF APPEALS and Spouses
RONALD V. CLAVANO and MARIA CLARA CLAVANO, respondents.
Remedial Law; Actions; Jurisdiction; The established rule is that the
statute in force at the time of the commencement of the action
determines the jurisdiction of the court.Jurisdiction being a matter of
substantive law, the established rule is that the statute in force at the
time of the commencement of the action determines the jurisdiction of
the court. As such, when private respondents filed the petition for
adoption on September 25, 1987, the applicable law was the Child
and Youth Welfare Code, as amended by Executive Order No. 91.
Civil Law; Adoption; The written consent of the natural parent to the
adoption has remained a requisite for its validity.It is thus evident
that notwithstanding the amendments to the law, the written consent
of the natural parent to the adoption has remained a requisite for its
validity.
Same; Same; Article 256 of the Family Code provides for its retroactivity
insofar as it does not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws.During the pendency
of the petition for adoption or on August 3, 1988, the Family Code
which amended the Child and Youth Welfare Code took effect. Article
256 of the Family Code provides for its retroactivity insofar as it does
not prejudice or impair vested or acquired rights in accordance with
the Civil Code or other laws. As amended by the Family Code, the
statutory provision on consent for adoption now reads: Art. 188. The
written consent of the following to the adoption shall be necessary: (1)
The person to be adopted, if ten years of age or over; (2) The parents
by nature of the child, the legal guardian, or the proper government
instrumentality; (3) The legitimate and adopted children, ten years of
age or over, of the adopting parent or parents; (4) The illegitimate
children, ten years of age or over, of the adopting parents, if living
with said parent and the latters spouse, if any; and (5) The spouse, if
any, of the person adopting or to be adopted. (Italics supplied)
Same; Same; The requirement of written consent can be dispensed with
if the parent has abandoned the child.As clearly inferred from the
foregoing provisions of law, the written consent of the natural parent
is indispensable for the validity of the decree of adoption.

Nevertheless, the requirement of written consent can be dispensed

with if the parent has abandoned the child or that such parent is
insane or hopelessly intemperate. The court may acquire jurisdiction
over the case even without the written consent of the parents or one of
the parents provided that the petition for adoption alleges facts
sufficient to warrant exemption from compliance therewith. This is in
consonance with the liberality with which this Court treats the
procedural aspect of adoption.
Same; Same; Allegations of abandonment in the petition for adoption,
even absent the written consent of petitioner, sufficiently vested the
lower court with jurisdiction.The allegations of abandonment in the
petition for adoption, even absent the written consent of petitioner,
sufficiently vested the lower court with jurisdiction since
abandonment of the child by his natural parents is one of the
circumstances under which our statutes and jurisprudence dispense
with the requirement of written consent to the adoption of their minor
children.
Same; Same; The issue of abandonment by the oppositor natural parent
is a preliminary issue that an adoption court must first confront.In
cases where the father opposes the adoption primarily because his
consent thereto was not sought, the matter of whether he had
abandoned his child becomes a proper issue for determination. The
issue of abandonment by the oppositor natural parent is a
preliminary issue that an adoption court must first confront. Only
upon failure of the oppositor natural father to prove to the satisfaction
of the court that he did not abandon his child may the petition for
adoption be considered on its merits.
Same; Same; Meaning of Abandonment.In its ordinary sense, the
word abandon means to forsake entirely, to forsake or renounce
utterly. The dictionaries trace this word to the root idea of putting
under a ban. The emphasis is on the finality and publicity with
which a thing or body is thus put in the control of another, hence, the
meaning of giving up absolutely, with intent never to resume or claim
ones rights or interests. In reference to abandonment of a child by his
parent, the act of abandonment imports any conduct of the parent
which evinces a settled purpose to forego all parental duties and
relinquish all parental claims to the child. It means neglect or
refusal to perform the natural and legal obligations of care and
support which parents owe their children.
Same; Same; Same; Physical estrangement alone, without financial and
moral desertion, is not tantamount to abandonment.In the instant

151

case, records disclose that petitioners conduct did not manifest a

settled purpose to forego all parental duties and relinquish all
parental claims over his children as to constitute abandonment.
Physical estrangement alone, without financial and moral desertion, is
not tantamount to abandonment. While admittedly, petitioner was
physically absent as he was then in the United States, he was not
remiss in his natural and legal obligations of love, care and support
for his children. He maintained regular communication with his wife
and children through letters and telephone. He used to send packages
by mail and catered to their whims.
Same; Same; Parental authority cannot be entrusted to a person simply
because he could give the child a larger measure of material comfort
than his natural parent.In a number of cases, this Court has held
that parental authority cannot be entrusted to a person simply
because he could give the child a larger measure of material comfort
than his natural parent. Thus, in David v. Court of Appeals, the Court
awarded custody of a minor illegitimate child to his mother who was a
mere secretary and market vendor instead of to his affluent father
who was a married man, not solely because the child opted to go with
his mother.
Same; Same; In awarding custody, 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 transfer of
custody over the children to Anna Marie by virtue of the decree of
legal separation did not, of necessity, deprive petitioner of parental
authority for the purpose of placing the children up for adoption.
Article 213 of the Family Code states: . . . in case of legal separation
of parents, parental authority shall be exercised by the parent
designated by the court. In awarding custody, 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.
Same; Same; Parental authority and responsibility are inalienable and
may not be transferred or renounced except in cases authorized by
law.Parental authority and responsibility are inalienable and may
not be transferred or renounced except in cases authorized by law. The
right attached to parental authority, being purely personal, the law
allows a waiver of parental authority only in cases of adoption,
guardianship and surrender to a childrens home or an orphan
institution. 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. Even if a definite renunciation is manifest, the law

still disallows the same.
Same; Divorce; A divorce obtained by Filipino citizens after the
effectivity of the Civil Code is not recognized in this jurisdiction as it is
contrary to State policy.As regards the divorce obtained in the
United States, this Court has ruled in Tenchavez v. Escao that a
divorce obtained by Filipino citizens after the effectivity of the Civil
Code is not recognized in this jurisdiction as it is contrary to State
policy. While petitioner is now an American citizen, as regards Anna
Marie who has apparently remained a Filipino citizen, the divorce has
no legal effect.
Remedial Law; Appeals; Although the Court is not a trier of facts, it has
the authority to review and reverse the factual findings of the lower
courts if it finds that these do not conform to the evidence on record.
As a rule, factual findings of the lower courts are final and binding
upon this Court. This Court is not expected nor required to examine
or contrast the oral and documentary evidence submitted by the
parties. However, although this Court is not a trier of facts, it has the
authority to review and reverse the factual findings of the lower courts
if it finds that these do not conform to the evidence on record.
Same; Same; Exceptions to the rule that factual findings of the trial
court are final and conclusive and may not be reviewed on appeal.In
Reyes v. Court of Appeals, this Court has held that the exceptions to
the rule that factual findings of the trial court are final and conclusive
and may not be reviewed on appeal are the following: (1) when the
inference made is manifestly mistaken, absurd or impossible; (2)
when there is a grave abuse of discretion; (3) when the finding is
grounded entirely on speculations, surmises or conjectures; (4) when
the judgment of the Court of Appeals is based on misapprehension of
facts; (5) when the findings of fact are conflicting; (6) when the Court
of Appeals, in making its findings, went beyond the issues of the case
and the same is contrary to the admissions of both appellant and
appellee; (7) when the findings of the Court of Appeals are contrary to
those of the trial court; (8) when the findings of fact are conclusions
without citation of specific evidence on which they are based; (9) when
the Court of Appeals manifestly overlooked certain relevant facts not
disputed by the parties and which, if properly considered, would
justify a different conclusion and (10) when the findings of fact of the
Court of Appeals are premised on the absence of evidence and are
contradicted by the evidence on record.
PETITION for review on certiorari of a decision of the Court of Appeals.

152

The facts are stated in the opinion of the Court.

Rosello & Fernandez Law Office for petitioner.
De Borja, Medialdea, Ata, Bello, Guevarra & Serapio for private
respondents.
ROMERO, J.:
Can minor children be legally adopted without the written consent of
a natural parent on the ground that the latter has abandoned them?
The answer to this interesting query, certainly not one of first
impression, would have to be reached, not solely on the basis of law
and jurisprudence, but also the hard reality presented by the facts of
the case.
This is the question posed before this Court in this petition for review
on certiorari of the Decision 1 of the Court of Appeals affirming the
decree of adoption issued by the Regional Trial Court of Cebu City,
Branch 14,2 in Special Proceedings No. 1744-CEB, In the Matter of
the Petition for Adoption of the minors Keith, Charmaine and Joseph
Anthony, all surnamed Cang, Spouses Ronald V. Clavano and Maria
Clara Diago Clavano, petitioners.
Petitioner Herbert Cang and Anna Marie Clavano who were married
on January 27, 1973, begot three children, namely: Keith, born on
July 3, 1973; Charmaine, born on January 23, 1977, and Joseph
Anthony, born on January 3, 1981.
During the early years of their marriage, the Cang couples
relationship was undisturbed. Not long thereafter, however, Anna
Marie learned of her husbands alleged extramarital affair with Wilma
Soco, a family friend of the Clavanos.
Upon learning of her husbands alleged illicit liaison, Anna Marie filed
a petition for legal separation with alimony pendente lite3 with the
then Juvenile and Domestic Relations Court of Cebu4 which rendered
a decision5 approving the joint manifestation of the Cang spouses
providing that they agreed to live separately and apart or from bed
and board. They further agreed:
1. (c) That the children of the parties shall be entitled to a
monthly support of ONE THOUSAND PESOS (P1,000.00)
effective from the date of the filing of the complaint. This shall

constitute a first lien on the net proceeds of the house and lot
jointly owned by the parties situated at Cinco Village,
Mandaue City;
2. (d) That the plaintiff shall be entitled to enter into any contract
or agreement with any person or persons, natural or juridical
without the written consent of the husband; or any
undertaking or acts that ordinarily requires husbands consent
as the parties are by this agreement legally separated 6;
Petitioner then left for the United States where he sought a divorce
from Anna Marie before the Second Judicial District Court of the
State of Nevada. Said court issued the divorce decree that also
granted sole custody of the three minor children to Anna Marie,
reserving rights of visitation at all reasonable times and places to
petitioner.7
Thereafter, petitioner took an American wife and thus became a
naturalized American citizen. In 1986, he divorced his American wife
and never remarried.
While in the United States, petitioner worked in Tablante Medical
Clinic earning P18,000.00 to P20,000.00 a month 8 a portion of which
was remitted to the Philippines for his childrens expenses and
another, deposited in the bank in the name of his children.
Meanwhile, on September 25, 1987, private respondents Ronald V.
Clavano and Maria Clara Diago Clavano, respectively the brother and
sister-in-law of Anna Marie, filed Special Proceedings No. 1744-CEB
for the adoption of the three minor Cang children before the Regional
Trial Court of Cebu.
The petition bears the signature of then 14-year-old Keith signifying
consent to his adoption. Anna Marie likewise filed an affidavit of
consent alleging that her husband had evaded his legal obligation to
support his children; that her brothers and sisters including Ronald
V. Clavano, had been helping her in taking care of the children; that
because she would be going to the United States to attend to a family
business, leaving the children would be a problem and would
naturally hamper (her) job-seeking venture abroad; and that her
husband had long forfeited his parental rights over the children for
the following reasons:
1. 1. The decision in Civil Case No. JD-707 allowed her to enter
into any contract without the written consent of her husband;

153

2. 2. Her husband had left the Philippines to be an illegal alien in

the United States and had been transferring from one place to
another to avoid detection by Immigration authorities; and
3. 3. Her husband had divorced her.
Upon learning of the petition for adoption, petitioner immediately
returned to the Philippines and filed an opposition thereto, alleging
that, although private respondents Ronald and Maria Clara Clavano
were financially capable of supporting the children while his finances
were too meager compared to theirs, he could not in conscience,
allow anybody to strip him of his parental authority over his beloved
children.
Pending resolution of the petition for adoption, petitioner moved to
reacquire custody over his children alleging that Anna Marie had
transferred to the United States thereby leaving custody of their
children to private respondents. On January 11, 1988, the Regional
Trial Court of Cebu City, Branch 19, issued an order finding that
Anna Marie had, in effect, relinquished custody over the children and,
therefore, such custody should be transferred to the father. The court
then directed the Clavanos to deliver custody over the minors to
petitioner.
On March 27, 1990, the Regional Trial Court of Cebu City, Branch 14,
issued a decree of adoption with a dispositive portion reading as
follows:
WHEREFORE, premises considered, the petition for adoption of the
minors Keith, Charmaine and Joseph Anthony all surnamed Cang, by
the petitioners-spouses Ronald V. Clavano and Maria Clara Diago
Clavano is hereby granted and approved. These children shall
henceforth be known and called as Keith D. Clavano, Charmaine D.
Clavano and Joseph Anthony D. Clavano respectively. Moreover, this
Decree of Adoption shall:
1. (1) Confer upon the adopted children the same rights and
duties as though they were in fact the legitimate children of
the petitioners;
2. (2) Dissolve the authority vested in the parents by nature, of
the children; and,
3. (3) Vest the same authority in the petitioners.
Furnish the Local Civil Registrar of Cebu City, Philippines with a copy
of this Decree of Adoption for registration purposes.

SO ORDERED.
In so ruling, the lower court was impelled by these reasons:
1. (1) The Cang children had, since birth, developed close filial
ties with the Clavano family, especially their maternal uncle,
petitioner Ronald Clavano.
2. (2) Ronald and Maria Clara Clavano were childless and, with
their printing press, real estate business, export business and
gasoline station and mini-mart in Rosemead, California,
U.S.A., had substantial assets and income.
3. (3) The natural mother of the children, Anna Marie, nicknamed
Menchu, approved of the adoption because of her heart
ailment, near-fatal accident in 1981, and the fact that she
could not provide them a secure and happy future as she
travels a lot.
4. (4) The Clavanos could provide the children moral and
spiritual direction as they would go to church together and
had sent the children to Catholic schools.
5. (5) The children themselves manifested their desire to be
adopted by the ClavanosKeith had testified and expressed
the wish to be adopted by the Clavanos while the two younger
ones were observed by the court to have snuggled close to
Ronald even though their natural mother was around.
On the other hand, the lower court considered the opposition of
petitioner to rest on a very shaky foundation because of its findings
that:
1. (1) Petitioner was morally unfit to be the father of his
children on account of his being an improvident father of his
family and an undisguised Lothario. This conclusion is
based on the testimony of his alleged paramour, mother of his
two sons and close friend of Anna Marie, Wilma Soco, who
said that she and petitioner lived as husband and wife in the
very house of the Cangs in Opao, Mandaue City.
2. (2) The alleged deposits of around $10,000 that were of
comparatively recent dates were attempts at verisimilitude
as these were joint deposits the authenticity of which could
not be verified.
3. (3) Contrary to petitioners claim, the possibility of his
reconciliation with Anna Marie was dim if not nil because it
was petitioner who devised, engineered and executed the
divorce proceedings at the Nevada Washoe County court.

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4. (4) By his naturalization as a U.S. citizen, petitioner is now an

alien from the standpoint of Philippine laws and therefore,
how his new attachments and loyalties would sit with his
(Filipino) children is an open question.

which parents owe their children (Santos vs. Ananzanso, supra), or

the withholding of the parents presence, his care and the opportunity
to display voluntary affection. The issue of abandonment is amply
covered by the discussion of the first error.

Quoting with approval the evaluation and recommendation of the RTC

Social Worker in her Child Study Report, the lower court concluded as
follows:

Oppositor argues that he has been sending dollar remittances to the

children and has in fact even maintained bank accounts in their
names. His duty to provide support comes from two judicial
pronouncements. The first, the decision in JD-707 CEB, supra,
obliges him to pay the children P1,000.00 a month. The second is
mandated by the divorce decree of the Nevada, U.S.A. Federal Court
which orders him to pay monthly support of US$50.00 for each child.
Oppositor has not submitted any evidence to show compliance with
the decision in JD-101 CEB, but he has submitted 22 cancelled dollar
checks (Exhs. 24 to 45) drawn in the childrens names totalling
$2,126.98. The last remittance was on October 6, 1987 (Exh. 45). His
obligation to provide support commenced under the divorce decree on
May 5, 1982 so that as of October 6, 1987, oppositor should have
made 53 remittances of $150.00, or a total of $7,950.00. No other
remittances were shown to have been made after October 6, 1987, so
that as of this date, oppositor was woefully in arrears under the terms
of the divorce decree. And since he was totally in default of the
judgment in JD-707 CEB, the inevitable conclusion is oppositor had
not really been performing his duties as a father, contrary to his
protestations.

Simply put, the oppositor Herbert Cang has abandoned his children.
And abandonment of a child by its (sic) parent is commonly specified
by statute as a ground for dispensing with his consent to its (sic)
adoption (Re Cozza, 163 Cal. 514 P. 161, Ann. [As. 1914A, 214]).
Indeed, in such case, adoption will be allowed not only without the
consent of the parent, but even against his opposition (Re McKeag, 141
Cal. 403, 74 P. 1039, 99 Am. St. Rep. 80; Re Camp. 131 Cal. 469, 63
P. 736, 82 Am. St. Rep. 371; Graham v. Francis, 83 Colo. 346, 265 P.
690, citing R.C.L.; Seibert, 170 Iowa 561, 153 N.W. 160, citing R.C.L.;
Stearns v. Allen, 183 Mass. 404, 67 N.E. 349; 97 Am. St. Rep. 441;
Wilson v. Otis, 71 N.H. 483, 53 A. 439, 93 Am. St. Rep. 564; Nugent v.
Powell, 4 Wyo. 173, 33 P. 23, 20 L.R.A. 199, 62 Am. St. Rep. 17.) 9
Before the Court of Appeals, petitioner contended that the lower court
erred in holding that it would be in the best interest of the three
children if they were adopted by private respondents Ronald and
Maria Clara Clavano. He asserted that the petition for adoption was
fatally defective and tailored to divest him of parental authority
because: (a) he did not have a written consent to the adoption; (b) he
never abandoned his children; (c) Keith and Charmaine did not
properly give their written consent; and (d) the petitioners for adoption
did not present as witness the representative of the Department of
Social Welfare and Development who made the case study report
required by law.
The Court of Appeals affirmed the decree of adoption stating:
Article 188 of the Family Code requires the written consent of the
natural parents of the child to be adopted. It has been held however
that the consent of the parent who has abandoned the child is not
necessary (Dayrit vs. Piccio, 92 Phil. 729; Santos vs. Ananzanso, 16
SCRA 344). The question therefore is whether or not oppositor may be
considered as having abandoned the children. In adoption cases,
abandonment connotes any conduct on the part of the parent to
forego parental duties and relinquish parental claims to the child, or
the neglect or refusal to perform the natural and legal obligations

True, it has been shown that oppositor had opened three accounts in
different banks, as follows
Acct. No.
Date Opened
1) 118July 23,1985
606437-4 Oct. 29, 1987
2) 73-166-8 March
5,
1986
Oct. 29, 1987
3) 564December 31,
146883
1986
Oct. 29, 1987

Balance Name of Bank

$5,018.50 Great Western Savings, Daly
City, Cal., U.S.A.
3,129.00 Matewan National
Williamson,
West
U.S.A.

Bank of
Virginia,

2,622.19 Security Pacific National Bank,

Daly City, Cal., U.S.A.

The first and third accounts were opened however in oppositors name
as trustee for Charmaine Cang and Joseph Anthony Cang,
respectively. In other words, the accounts are operated and the
amounts withdrawable by oppositor himself and it cannot be said that

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they belong to the minors. The second is an or account, in the names

of Herbert Cang or Keith Cang. Since Keith is a minor and in the
Philippines, said account is operable only by oppositor and the funds
withdrawable by him alone.
The bank accounts do not really serve what oppositor claimed in his
offer of evidence the aim and purpose of providing for a better future
and security of his family. 10
Petitioner moved to reconsider the decision of the Court of Appeals.
He emphasized that the decree of legal separation was not based on
the merits of the case as it was based on a manifestation amounting
to a compromise agreement between him and Anna Marie. That he
and his wife agreed upon the plan for him to leave for the United
States was borne out by the fact that prior to his departure to the
United States, the family lived with petitioners parents. Moreover, he
alone did not instigate the divorce proceedings as he and his wife
initiated the joint complaint for divorce.
Petitioner argued that the finding that he was not fit to rear and care
for his children was belied by the award to him of custody over the
children in Civil Case No. JD-707. He took exception to the appellate
courts findings that as an American citizen he could no longer lay
claim to custody over his children because his citizenship would not
take away the fact that he is still a father to his children. As regards
his alleged illicit relationship with another woman, he had always
denied the same both in Civil Case No. JD-707 and the instant
adoption case. Neither was it true that Wilma Soco was a neighbor
and family friend of the Clavanos as she was residing in Mandaue
City seven (7) kilometers away from the Clavanos who were residents
of Cebu City. Petitioner insisted that the testimony of Wilma Soco
should not have been given weight for it was only during the hearing
of the petition for adoption that Jose Clavano, a brother of Ronald,
came to know her and went to her residence in Iligan City to convince
her to be a witness for monetary considerations. Lastly, petitioner
averred that it would be hypocritical of the Clavanos to claim that
they could love the children much more than he could. 11
His motion for reconsideration having been denied, petitioner is now
before this Court, alleging that the petition for adoption was fatally
defective as it did not have his written consent as a natural father as
required by Article 31 (2) of Presidential Decree No. 603, the Child
and Youth Welfare Code, and Article 188(2) of the Family Code.

ART. 31. Whose Consent is Necessary.The written consent of the

following to the adoption shall be necessary:
1. (1) The person to be adopted, if fourteen years of age or over;
2. (2) The natural parents of the child or his legal guardian of the
Department of Social Welfare or any duly licensed child
placement agency under whose care the child may be;
3. (3) The natural children, fourteen years and above, of the
adopting parents. (Italics supplied)
On December 17, 1986, then President Corazon C. Aquino issued
Executive Order No. 91 amending Articles 27, 28, 29, 31, 33 and 35
of the Child and Youth Welfare Code. As thus amended, Article 31
read:
ART. 31. Whose Consent is Necessary.The written consent of the
following to the adoption shall be necessary:
1. (1) The person to be adopted, if fourteen years of age or over;
2. (2) The natural parents of the child or his legal guardian after
receiving counselling and appropriate social services from the
Ministry of Social Services and Development or from a duly
licensed child-placement agency;
3. (3) The Ministry of Social Services and Development or any
duly licensed child-placement agency under whose care and
legal custody the child may be;
4. (4) The natural children, fourteen years and above, of the
adopting parents. (Italics supplied)
Jurisdiction being a matter of substantive law, the established rule is
that the statute in force at the time of the commencement of the
action determines the jurisdiction of the court.12 As such, when
private respondents filed the petition for adoption on September 25,
1987, the applicable law was the Child and Youth Welfare Code, as
amended by Executive Order No. 91.
During the pendency of the petition for adoption or on August 3,
1988, the Family Code which amended the Child and Youth Welfare
Code took effect. Article 256 of the Family Code provides for its
retroactivity insofar as it does not prejudice or impair vested or
acquired rights in accordance with the Civil Code or other laws. As
amended by the Family Code, the statutory provision on consent for
adoption now reads:

Article 31 of P.D. No. 603 provides

156

Art. 188. The written consent of the following to the adoption shall be
necessary:
1. (1) The person to be adopted, if ten years of age or over;
2. (2) The parents by nature of the child, the legal guardian, or the
proper government instrumentality;
3. (3) The legitimate and adopted children, ten years of age or
over, of the adopting parent or parents;
4. (4) The illegitimate children, ten years of age or over, of the
adopting parents, if living with said parent and the latters
spouse, if any; and
5. (5) The spouse, if any, of the person adopting or to be
adopted. (Italics supplied)
Based on the foregoing, it is thus evident that notwithstanding the
amendments to the law, the written consent of the natural parent to
the adoption has remained a requisite for its validity. Notably, such
requirement is also embodied in Rule 99 of the Rules of Court as
follows:
SEC. 3. Consent to adoption.There shall be filed with the petition a
written consent to the adoption signed by the child, if fourteen years of
age or over and not incompetent, and by the childs spouse, if any,
and by each of its known living parents who is not insane or hopelessly
intemperate or has not abandoned the child, or if there are no such
parents by the general guardian or guardian ad litem of the child, or if
the child is in the custody of an orphan asylum, childrens home, or
benevolent society or person, by the proper officer or officers of such
asylum, home, or society, or by such persons; but if the child is
illegitimate and has not been recognized, the consent of its father to
the adoption shall not be required. (Italics supplied)
As clearly inferred from the foregoing provisions of law, the written
consent of the natural parent is indispensable for the validity of the
decree of adoption. Nevertheless, the requirement of written consent
can be dispensed with if the parent has abandoned the child13 or that
such parent is insane or hopelessly intemperate. The court may
acquire jurisdiction over the case even without the written consent of
the parents or one of the parents provided that the petition for
adoption alleges facts sufficient to warrant exemption from
compliance therewith. This is in consonance with the liberality with
which this Court treats the procedural aspect of adoption. Thus, the
Court declared:

x x x. The technical rules of pleading should not be stringently

applied to adoption proceedings, and it is deemed more important
that the petition should contain facts relating to the child and its
parents, which may give information to those interested, than that it
should be formally correct as a pleading. Accordingly, it is generally
held that a petition will confer jurisdiction if it substantially complies
with the adoption statute, alleging all facts necessary to give the court
jurisdiction.14
In the instant case, only the affidavit of consent of the natural mother
was attached to the petition for adoption. Petitioners consent, as the
natural father is lacking. Nonetheless, the petition sufficiently alleged
the fact of abandonment of the minors for adoption by the natural
father as follows:
3. That the childrens mother, sister of petitioner RONALD V.
CLAVANO, has given her express consent to this adoption, as shown
by Affidavit of Consent, Annex A. Likewise, the written consent of
Keith Cang, now 14 years of age appears on page 2 of this petition;
However, the father of the children, Herbert Cang, had already left his
wife and children and had already divorced the former, as evidenced
by the xerox copy of the DECREE OF DIVORCE issued by the County
of Washoe, State of Nevada, U.S.A. (Annex B) which was filed at the
instance of Mr. Cang, not long after he abandoned his family to live in
the United States as an illegal immigrant.15
The allegations of abandonment in the petition for adoption, even
absent the written consent of petitioner, sufficiently vested the lower
court with jurisdiction since abandonment of the child by his natural
parents is one of the circumstances under which our statutes and
jurisprudence16 dispense with the requirement of written consent to
the adoption of their minor children.
However, in cases where the father opposes the adoption primarily
because his consent thereto was not sought, the matter of whether he
had abandoned his child becomes a proper issue for determination.
The issue of abandonment by the oppositor natural parent is a
preliminary issue that an adoption court must first confront. Only
upon failure of the oppositor natural father to prove to the satisfaction
of the court that he did not abandon his child may the petition for
adoption be considered on its merits.
As a rule, factual findings of the lower courts are final and binding
upon this Court.17 This Court is not expected nor required to examine
or contrast the oral and documentary evidence submitted by the

157

parties.18 However, although this Court is not a trier of facts, it has

the authority to review and reverse the factual findings of the lower
courts if it finds that these do not conform to the evidence on record. 19
In Reyes v. Court of Appeals,20 this Court has held that the exceptions
to the rule that factual findings of the trial court are final and
conclusive and may not be reviewed on appeal are the following: (1)
when the inference made is manifestly mistaken, absurd or
impossible; (2) when there is a grave abuse of discretion; (3) when the
finding is grounded entirely on speculations, surmises or conjectures;
(4) when the judgment of the Court of Appeals is based on
misapprehension of facts; (5) when the findings of fact are conflicting;
(6) when the Court of Appeals, in making its findings, went beyond
the issues of the case and the same is contrary to the admissions of
both appellant and appellee; (7) when the findings of the Court of
Appeals are contrary to those of the trial court; (8) when the findings
of fact are conclusions without citation of specific evidence on which
they are based; (9) when the Court of Appeals manifestly overlooked
certain relevant facts not disputed by the parties and which, if
properly considered, would justify a different conclusion and (10)
when the findings of fact of the Court of Appeals are premised on the
absence of evidence and are contradicted by the evidence on record.
This Court finds that both the lower court and the Court of Appeals
failed to appreciate facts and circumstances that should have elicited
a different conclusion21 on the issue of whether petitioner has so
abandoned his children, thereby making his consent to the adoption
unnecessary.
In its ordinary sense, the word abandon means to forsake entirely,
to forsake or renounce utterly. The dictionaries trace this word to the
root idea of putting under a ban. The emphasis is on the finality and
publicity with which a thing or body is thus put in the control of
another, hence, the meaning of giving up absolutely, with intent never
to resume or claim ones rights or interests. 22 In reference to
abandonment of a child by his parent, the act of abandonment
imports any conduct of the parent which evinces a settled purpose to
forego all parental duties and relinquish all parental claims to the
child. It means neglect or refusal to perform the natural and legal
obligations of care and support which parents owe their children.23
In the instant case, records disclose that petitioners conduct did not
manifest a settled purpose to forego all parental duties and relinquish
all parental claims over his children as to constitute abandonment.
Physical estrangement alone, without financial and moral desertion, is

not tantamount to abandonment.24 While admittedly, petitioner was

physically absent as he was then in the United States, he was not
remiss in his natural and legal obligations of love, care and support
for his children. He maintained regular communication with his wife
and children through letters and telephone. He used to send packages
by mail and catered to their whims.
Petitioners testimony on the matter is supported by documentary
evidence consisting of the following handwritten letters to him of both
his wife and children:
1. 1. Exh. 1a 4-page undated letter of Menchu (Anna Marie)
addressed to Dear Bert on a C. Westates Carbon Phil. Corp.
stationery. Menchu stated therein that it had been a long time
since the last time youve heard from me excluding that of the
phone conversation weve had. She discussed petitioners
intention to buy a motorbike for Keith, expressing
apprehension over risks that could be engendered by Keiths
use of it. She said that in the last phone conversation she
had with petitioner on the birthday of Ma, she forgot to tell
petitioner that Keiths voice had changed; he had become a
bagito or a teen-ager with many fans who sent him
Valentines cards. She told him how Charmaine had become
quite a talkative almost dalaga who could carry on a
conversation with her angkong and how pretty she was in
white dress when she won among the candidates in the Flores
de Mayo after she had prayed so hard for it. She informed him,
however, that she was worried because Charmaine was vain
and wont to extravagance as she loved clothes. About Joeton
(Joseph Anthony), she told petitioner that the boy was smart
for his age and quite spoiled being the youngest of the
children in Lahug. Joeton was mischievous but Keith was his
idol with whom he would sleep anytime. She admitted having
said so much about the children because they might not have
informed petitioner of some happenings and spices of life
about themselves. She said that it was just very exciting to
know how theyve grown up and very pleasant, too, that each
of them have (sic) different characters. She ended the letter
with the hope that petitioner was at the best of health. After
extending her regards to all, she signed her name after the
word Love. This letter was mailed on July 9, 1986 from Cebu
to petitioner whose address was P.O. Box 2445, Williamson,
West Virginia 25661 (Exh. 1-D).

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1. 2. Exh. 2letter dated 11/13/84 on a green stationery with

golden print of a note from Menchu on the left upper corner.
Anna Marie stated that we wrote to petitioner on Oct. 2,
1984 and that Keith and Joeton were very excited when
petitioner called up last time. She told him how Joeton would
grab the phone from Keith just so petitioner would know what
he wanted to order. Charmaine, who was asleep, was so
disappointed that she missed petitioners call because she also
wanted something that petitioner should buy. Menchu told
petitioner that Charmaine wanted a pencil sharpener, lightcolored T-shirts for her walking shorts and a (k)nap sack.
Anna Marie informed petitioner that the kids were growing up
and so were their needs. She told petitioner to be very
fatherly about the childrens needs because those were
expensive here. For herself, Anna Marie asked for a
subscription of Glamour and Vogue magazines and that
whatever expenses he would incur, she would replace these.
As a postcript, she told petitioner that Keith wanted a size 6
khaki-colored Sperry topsider shoes.
2. 3. Exh. 3an undated note on a yellow small piece of paper
that reads:
Dear Herbert,
Hi, how was Christmas and New Year? Hope you had a wonderful
one.
By the way thanks for the shoes, it was a nice one. Its nice to be
thought of at Xmas. Thanks again.
Sincerely,
Menchu
1. 4. Exh. 4a two-page undated letter of Keith on stationery of
Jose Clavano, Inc. addressed to Dear Dad. Keith told his
father that they tried to tell their mother to stay for a little
while, just a few weeks after classes start(s) on June 16. He
informed petitioner that Joeton would be in Kinder I and that,
about the motorbike, he had told his mother to write petitioner
about it and well see what youre (sic) decision will be. He
asked for chocolates, nuts, basketball shirt and shorts, rubber
shoes, socks, headband, some clothes for outing and perfume.
He told petitioner that they had been going to Lahug with their
mother picking them up after Angkong or Ama had prepared
lunch or dinner. From her aerobics, his mother would go for

them in Lahug at about 9:30 or 10:00 oclock in the evening.

He wished his father luck and the best of health and that
they prayed for him and their other relatives. The letter was
ended with Love Keith.
2. 5. Exh. 5another undated long letter of Keith. He thanked
his father for the Christmas card with $40.00, $30.00 and
$30.00 and the card of Joeton with $5.00 inside. He told
petitioner the amounts following his fathers instructions and
promise to send money through the mail. He asked his father
to address his letter directly to him because he wanted to open
his own letters. He informed petitioner of activities during the
Christmas seasonthat they enjoyed eating, playing and
giving surprises to their mother. He apprised him of his daily
schedule and that their mother had been closely supervising
them, instructing them to fold their blankets and pile up their
pillows. He informed petitioner that Joeton had become very
smart while Charmaine, who was also smart, was very
demanding of their mother. Because their mother was leaving
for the United States on February 5, they would be missing
her like they were missing petitioner. He asked for his things
and $200.00. He told petitioner more anecdotes about Joeton
like he would make the sign of the cross even when they would
pass by the Iglesia ni Cristo church and his insistence that
Aquino was not dead because he had seen him on the betamax
machine. For Keith, Charmaine had become very maldita
who was not always satisfied with her dolls and things but
Joeton was full of surprises. He ended the letter with Love
your son, Keith. The letter was mailed on February 6, 1985
(Exh. 5-D).
1. 6. Exh. 6an undated letter of Charmaine. She thanked
petitioner for the bathing suit, key chain, pencil box, socks,
half shirt, pencil sharpener and $50.00. She reminded him of
her birthday on January 23 when she would turn 9 years old.
She informed him that she wore size 10 and the size of her feet
was IM. They had fun at Christmas in Lahug but classes
would start on January 9 although Keiths classes had started
on January 6. They would feel sad again because Mommy
would be leaving soon. She hoped petitioner would keep
writing them. She signed, Love, Charmaine.
2. 7. Exh. 7an undated letter of Keith. He explained to
petitioner that they had not been remiss in writing letters to
him. He informed him of their trip to Manilathey went to
Malacaang, Tito Doy Laurels house, the Ministry of Foreign
Affairs, the executive house, Tagaytay for three days and

159

Baguio for one week. He informed him that he got honors,

Charmaine was 7th in her class and Joeton had excellent
grades. Joeton would be enrolled in Sacred Heart soon and he
was glad they would be together in that school. He asked for
his reward from petitioner and so with Charmaine and
Joeton. He asked for a motorbike and dollars that he could
save. He told petitioner that he was saving the money he had
been sending them. He said he missed petitioner and wished
him the best. He added that petitioner should call them on
Sundays.
3. 8. Exh. 8a letter from Joeton and Charmaine but apparently
written by the latter. She asked for money from petitioner to
buy something for the school and something else. She
promised not to spend so much and to save some. She said
she loved petitioner and missed him. Joeton said hi! to
petitioner. After ending the letter with Love, Joeton and
Charmaine, she asked for her prize for her grades as she got
seventh place.
4. 9. Exh. 9undated letter of Keith. He assured petitioner that
he had been writing him; that he would like to have some
money but he would save them; that he learned that petitioner
had called them up but he was not around; that he would be
going to Manila but would be back home May 3; that his
Mommy had just arrived Thursday afternoon, and that he
would be the official altar boy. He asked petitioner to write
them soon.
1. 10. Exh. 10Keith thanked petitioner for the money he sent.
He told petitioner that he was saving some in the bank and he
was proud because he was the only one in his group who
saved in the bank. He told him that Joeton had become
naughty and would claim as his own the shirts sent to Keith
by petitioner. He advised petitioner to send pants and shirts to
Joeton, too, and asked for a pair of topsider shoes and
candies. He informed petitioner that he was a member of the
basketball team and that his mom would drive for his group.
He asked him to call them often like the father of Ana Christie
and to write them when he would call so that they could wait
for it. He informed petitioner that they had all grown bigger
and heavier. He hoped petitioner would be happy with the
letter that had taken him so long to write because he did not
want to commit any mistakes. He asked petitioner to buy him
perfume (Drakkar) and, after thanking petitioner, added that
the latter should buy something for Mommy.

2. 11. Exh. 11a Christmas card For My Wonderful Father

dated October 8, 1984 from Keith, Charmaine and Joeton.
3. 12. Exh. 12another Christmas card, Our Wish For You
with the year 83 written on the upper right hand corner of the
inside page, from Keith, Charmaine and Joeton.
4. 13. Exh. 13a letter of Keith telling petitioner that he had
written him even when their Mom was there where she
bought them clothes and shoes. Keith asked petitioner for
$300.00. Because his mother would not agree to buy him a
motorbike, he wanted a Karaoke unit that would cost
P12,000.00. He informed petitioner that he would go to an
afternoon disco with friends but their grades were all good
with Joeton receiving stars for excellence. Keith wanted a
bow and arrow, Rambo toys and G.I. Joe. He expressed his
desire that petitioner would come and visit them someday.
5. 14. Exh. 14a letter of Keith with one of the four pages
bearing the date January 1986. Keith told his father that they
had received the package that the latter sent them. The clothes
he sent, however, fitted only Keith but not Charmaine and
Joeton who had both grown bigger. Keith asked for grocery
items, toys and more clothes. He asked, in behalf of his
mother, for low-heeled shoes and a dress to match, jogging
pants, tights and leotards that would make her look sexy. He
intimated to petitioner that he had grown taller and that he
was already ashamed to be asking for things to buy in the
grocery even though his mother had told him not to be shy
about it.
Aside from these letters, petitioner also presented certifications of
banks in the U.S.A. showing that even prior to the filing of the petition
for adoption, he had deposited amounts for the benefit of his
children.25 Exhibits 24 to 45 are copies of checks sent by petitioner to
the children from 1985 to 1989.
These pieces of evidence are all on record. It is, therefore, quite
surprising why the courts below simply glossed over these, ignoring
not only evidence on financial support but also the emotional
exchange of sentiments between petitioner and his family. Instead,
the courts below emphasized the meagerness of the amounts he sent
to his children and the fact that, as regards the bank deposits, these
were withdrawable by him alone. Simply put, the courts below
attached a high premium to the prospective adopters financial status
but totally brushed aside the possible repercussion of the adoption on
the emotional and psychological well-being of the children.

160

True, Keith had expressed his desire to be adopted by his uncle and
aunt. However, his seeming steadfastness on the matter as shown by
his testimony is contradicted by his feelings towards his father as
revealed in his letters to him. It is not at all farfetched to conclude
that Keiths testimony was actually the effect of the filing of the
petition for adoption that would certainly have engendered confusion
in his young mind as to the capability of his father to sustain the
lifestyle he had been used to.
The courts below emphasized respondents emotional attachment to
the children. This is hardly surprising for, from the very start of their
young lives, the children were used to their presence. Such
attachment had persisted and certainly, the young ones act of
snuggling close to private respondent Ronald Clavano was not
indicative of their emotional detachment from their father. Private
respondents, being the uncle and aunt of the children, could not but
come to their succor when they needed help as when Keith got sick
and private respondent Ronald spent for his hospital bills.
In a number of cases, this Court has held that parental authority
cannot be entrusted to a person simply because he could give the
child a larger measure of material comfort than his natural parent.
Thus, in David v. Court of Appeals,26 the Court awarded custody of a
minor illegitimate child to his mother who was a mere secretary and
market vendor instead of to his affluent father who was a married
man, not solely because the child opted to go with his mother. The
Court said:
Daisie and her children may not be enjoying a life of affluence that
private respondent promises if the child lives with him. It is enough,
however, that petitioner is earning a decent living and is able to
support her children according to her means.
In Celis v. Cafuir27 where the Court was confronted with the issue of
whether to award custody of a child to the natural mother or to a
foster mother, this Court said:
This court should avert the tragedy in the years to come of having
deprived mother and son of the beautiful associations and tender,
imperishable memories engendered by the relationship of parent and
child. We 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. We should not forget that the relationship between a foster
mother and a child is not natural but artificial. 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 (sic) all that they have
done and spent for him and with regret consider all of it as a dead
loss, and even rue the day they committed the blunder of taking the
child into their hearts and their home. Not so with a real natural
mother who never counts the cost and her sacrifices, ever treasuring
memories of her associations with her child, however unpleasant and
disappointing. Flesh and blood count. x x x.
In Espiritu v. Court of Appeals,28 the Court stated that (I)n
ascertaining the welfare and best interests of the child, courts are
mandated by the Family Code to take into account all relevant
considerations. Thus, in awarding custody of the child to the father,
the Court said:
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. (Italics supplied)29
Indeed, it would 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 children.
There should be a holistic approach to the matter, taking into account
the physical, emotional, psychological, mental, social and spiritual
needs of the child.30 The conclusion of the courts below that petitioner
abandoned his family needs more evidentiary support other than his
inability to provide them the material comfort that his admittedly
affluent in-laws could provide. There should be proof that he had so
emotionally abandoned them that his children would not miss his
guidance and counsel if they were given to adopting parents. The
letters he received from his children prove that petitioner maintained
the more important emotional tie between him and his children. The
children needed him not only because he could cater to their whims

161

but also because he was a person they could share with their daily
activities, problems and triumphs.
The Court is thus dismayed that the courts below did not look beyond
petitioners meager financial support to ferret out other indications
on whether petitioner had in fact abandoned his family. The omission
of said courts has led us to examine why the children were subjected
to the process of adoption, notwithstanding the proven ties that
bound them to their father. To our consternation, the record of the
case bears out the fact that the welfare of the children was not exactly
the paramount consideration that impelled Anna Marie to consent to
their adoption.
In her affidavit of consent, Anna Marie expressly said that leaving the
children in the country, as she was wont to travel abroad often, was a
problem that would naturally hamper her job-seeking abroad. In
other words, the adoption appears to be a matter of convenience for
her because Anna Marie herself is financially capable of supporting
her children.31 In his testimony, private respondent Ronald swore that
Anna Marie had been out of the country for two years and came home
twice or three times,32 thereby manifesting the fact that it was she
who actually left her children to the care of her relatives. It was bad
enough that their father left their children when he went abroad, but
when their mother followed suit for her own reasons, the situation
worsened. The Clavano family must have realized this. Hence, when
the family first discussed the adoption of the children, they decided
that the prospective adopter should be Anna Maries brother Jose.
However, because he had children of his own, the family decided to
devolve the task upon private respondents.33
This couple, however, could not always be in Cebu to care for the
children. A businessman, private respondent Ronald Clavano
commutes between Cebu and Manila while his wife, private
respondent Maria Clara, is an international flight stewardess. 34
Moreover, private respondent Ronald claimed that he could take care
of the children while their parents are away,35 thereby indicating the
evanescence of his intention. He wanted to have the childrens
surname changed to Clavano for the reason that he wanted to take
them to the United States as it would be difficult for them to get a visa
if their surname were different from his.36 To be sure, he also testified
that he wanted to spare the children the stigma of being products of a
broken home.
Nevertheless, a close analysis of the testimonies of private respondent
Ronald, his sister Anna Marie and their brother Jose points to the

inescapable conclusion that they just wanted to keep the children

away from their father. One of the overriding considerations for the
adoption was allegedly the state of Anna Maries healthshe was a
victim of an almost fatal accident and suffers from a heart ailment.
However, she herself admitted that her health condition was not that
serious as she could still take care of the children. 37 An eloquent
evidence of her ability to physically care for them was her employment
at the Philippine Consulate in Los Angeles 38she could not have been
employed if her health were endangered. It is thus clear that the
Clavanos attempt at depriving petitioner of parental authority
apparently stemmed from their notion that he was an inveterate
womanizer. Anna Marie in fact expressed fear that her children would
never be at ease with the wife of their father.39
Petitioner, who described himself as single in status, denied being a
womanizer and father to the sons of Wilma Soco. 40 As to whether he
was telling the truth is beside the point. Philippine society, being
comparatively conservative and traditional, aside from being Catholic
in orientation, it does not countenance womanizing on the part of a
family man, considering the baneful effects such irresponsible act
visits on his family. Neither may the Court place a premium on the
inability of a man to distinguish between siring children and
parenting them. Nonetheless, the actuality that petitioner carried on
an affair with a paramour cannot be taken as sufficient basis for the
conclusion that petitioner was necessarily an unfit father. 41
Conventional wisdom and common human experience show that a
bad husband does not necessarily make a bad father. That a
husband is not exactly an upright man is not, strictly speaking, a
sufficient ground to deprive him as a father of his inherent right to
parental authority over the children. 42 Petitioner has demonstrated
his love and concern for his children when he took the trouble of
sending a telegram43 to the lower court expressing his intention to
oppose the adoption immediately after learning about it. He traveled
back to this country to attend to the case and to testify about his love
for his children and his desire to unite his family once more in the
United States.44
Private respondents themselves explained why petitioner failed to
abide by the agreement with his wife on the support of the children.
Petitioner was an illegal alien in the United States. As such, he could
not have procured gainful employment. Private respondents failed to
refute petitioners testimony that he did not receive his share from the
sale
of
the
conjugal
home,45
pursuant
to
their
manifestation/compromise agreement in the legal separation case.
Hence, it can be reasonably presumed that the proceeds of the sale

162

redounded to the benefit of his family, particularly his children. The

proceeds may not have lasted long but there is ample evidence to
show that thereafter, petitioner tried to abide by his agreement with
his wife and sent his family money, no matter how meager.
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.46 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.47
In this regard, this Court notes private respondents reliance on the
manifestation/compromise agreement between petitioner and Anna
Marie which became the basis of the decree of legal separation.
According to private respondents counsel,48 the authority given to
Anna Marie by that decree to enter into contracts as a result of the
legal separation was all embracing49 and, therefore, included giving
her sole consent to the adoption. This conclusion is however,
anchored on the wrong premise that the authority given to the
innocent spouse to enter into contracts that obviously refer to their
conjugal properties, shall include entering into agreements leading to
the adoption of the children. Such conclusion is as devoid of a legal
basis as private respondents apparent reliance on the decree of legal
separation for doing away with petitioners consent to the adoption.
The transfer of custody over the children to Anna Marie by virtue of
the decree of legal separation did not, of necessity, deprive petitioner
of parental authority for the purpose of placing the children up for
adoption. Article 213 of the Family Code states: . . . in case of legal
separation of parents, parental authority shall be exercised by the
parent designated by the court. In awarding custody, 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.
It should be noted, however, that the law only confers on the innocent
spouse the exercise of parental authority. Having custody of the
child, the innocent spouse shall implement the sum of parental rights
with respect to his rearing and care. The innocent spouse shall have
the right to the childs services and earnings, and the right to direct

his activities and make decisions regarding his care and control,
education, health and religion.50
In a number of cases, this Court has considered parental authority,
the joint exercise of which is vested by the law upon the parents, 51 as
x x x a mass of rights and obligations which the law grants to
parents for the purpose of the childrens physical preservation and
development, as well as the cultivation of their intellect and the
education of their hearts and senses. 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.
Parental authority and responsibility are inalienable and may not be
transferred or renounced except in cases authorized by law. The right
attached to parental authority, being purely personal, the law allows a
waiver of parental authority only in cases of adoption, guardianship
and surrender to a childrens home or an orphan institution. 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. Even if a definite renunciation is manifest, the law still
disallows the same.
The father and mother, being the natural guardians of unemancipated
children, are duty-bound and entitled to keep them in their custody
and company.52 (Italics supplied)
As such, in instant case, petitioner may not be deemed as having
been completely deprived of parental authority, notwithstanding the
award of custody to Anna Marie in the legal separation case. To
reiterate, that award was arrived at by the lower court on the basis of
the agreement of the spouses.
While parental authority may be waived, as in law it may be subject to
a compromise,53 there was no factual finding in the legal separation
case that petitioner was such an irresponsible person that he should
be deprived of custody of his children or that there are grounds under
the law that could deprive him of parental authority. In fact, in the
legal separation case, the court thereafter ordered the transfer of
custody over the children from Anna Marie back to petitioner. The
order was not implemented because of Anna Maries motion for
reconsideration thereon. The Clavano family also vehemently objected

163

to the transfer of custody to the petitioner, such that the latter was
forced to file a contempt charge against them.54

Republic Act No. 8552 establishing the rules on the domestic

adoption of Filipino children.59

The law is clear that either parent may lose parental authority over
the child only for a valid reason. No such reason was established in
the legal separation case. In the instant case for adoption, the issue is
whether or not petitioner had abandoned his children as to warrant
dispensation of his consent to their adoption. Deprivation of parental
authority is one of the effects of a decree of adoption. 55 But there
cannot be a valid decree of adoption in this case precisely because, as
this Court has demonstrated earlier, the finding of the courts below
on the issue of petitioners abandonment of his family was based on a
misappreciation that was tantamount to non-appreciation, of facts on
record.

The case at bar applies the relevant provisions of these recent laws,
such as the following policies in the Domestic Adoption Act of 1998:
1. (a) To ensure that every child remains under the care and
custody of his/her parent(s) and be provided with love, care,
understanding and security towards the full and harmonious
development of his/her personality.60
2. (b) In all matters relating to the care, custody and adoption of
a child, his/her interest shall be the paramount consideration
in accordance with the tenets set forth in the United Nations
(UN) Convention on the Rights of the Child.61
3. (c) To prevent the child from unnecessary separation from
his/her biological parent(s).62

As regards the divorce obtained in the United States, this Court has
ruled in Tenchavez v. Escao 56 that a divorce obtained by Filipino
citizens after the effectivity of the Civil Code is not recognized in this
jurisdiction as it is contrary to State policy. While petitioner is now an
American citizen, as regards Anna Marie who has apparently
remained a Filipino citizen, the divorce has no legal effect.

Inasmuch as the Philippines is a signatory to the United Nations

Convention on the Rights of the Child, the government and its officials
are duty bound to comply with its mandates. Of particular relevance
to instant case are the following provisions:

Parental authority is a constitutionally protected State policy borne

out of established customs and tradition of our people. Thus, in Silva
v. Court of Appeals,57 a case involving the visitorial rights of an
illegitimate parent over his child, the Court expressed the opinion
that:

States Parties shall respect the responsibilities, rights and duties of

parents . . . to provide, in a manner consistent with the evolving
capacities of the child, appropriate direction and guidance in the
exercise by the child of the rights recognized in the present
Convention.63

Parents have the natural right, as well as the moral and legal duty, to
care for their children, see to their upbringing and safeguard their
best interest and welfare. This authority and responsibility may not be
unduly denied the parents; neither may it be renounced by them.
Even when the parents are estranged and their affection for each
other is lost, the attachment and feeling for their offsprings invariably
remain unchanged. Neither the law nor the courts allow this affinity
to suffer absent, of course, any real, grave and imminent threat to the
well-being of the child.

States Parties shall respect the right of the child who is separated
from one or both parents to maintain personal relations and direct
contact with both parents on a regular basis, except if it is contrary to
the childs best interests.64

Since the incorporation of the law concerning adoption in the Civil

Code, there has been a pronounced trend to place emphasis in
adoption proceedings, not so much on the need of childless couples
for a child, as on the paramount interest of a child who needs the love
and care of parents. After the passage of the Child and Youth Welfare
Code and the Family Code, the discernible trend has impelled the
enactment of Republic Act No. 8043 on Intercountry Adoption 58 and

A child whose parents reside in different States shall have the right
to maintain on a regular basis, save in exceptional circumstances
personal relations and direct contacts with both parents . . .65
States Parties shall respect the rights and duties of the parents . . .
to provide direction to the child in the exercise of his or her right in a
manner consistent with the evolving capacities of the child. 66
Underlying the policies and precepts in international conventions and
the domestic statutes with respect to children is the overriding
principle that all actuations should be in the best interests of the

164

child. This is not, however, to be implemented in derogation of the

primary right of the parent or parents to exercise parental authority
over him. The rights of parents vis--vis that of their children are not
antithetical to each other, as in fact, they must be respected and
harmonized to the fullest extent possible.
Keith, Charmaine and Joseph Anthony have all grown up. Keith and
Charmaine are now of legal age while Joseph Anthony is approaching
eighteen, the age of majority. For sure, they shall be endowed with the
discretion to lead lives independent of their parents. This is not to
state that this case has been rendered moot and academic, for their
welfare and best interests regarding their adoption, must be
determined as of the time that the petition for adoption was filed.67
Said petition must be denied as it was filed without the required
consent of their father who, by law and under the facts of the case at
bar, has not abandoned them.
WHEREFORE, the instant petition for review on certiorari is hereby
GRANTED. The questioned Decision and Resolution of the Court of
Appeals, as well as the decision of the Regional Trial Court of Cebu,
are SET ASIDE thereby denying the petition for adoption of Keith,
Charmaine and Joseph Anthony, all surnamed Cang, by the spouse
respondents Ronald and Maria Clara Clavano. This Decision is
immediately executory.
SO ORDERED.

165

G.R. No. 79955. January 27, 1989.*

IN THE MATTER OF THE PETITION FOR A WRIT OF HABEAS
CORPUS OF MINOR ANGELIE ANNE C. CERVANTES, NELSON L.
CERVANTES AND ZENAIDA CARREON CERVANTES, petitioners,
vs. GINA CARREON FAJARDO AND CONRADO FAJARDO,
respondents.
Civil Law; Persons and Family Relations; Adoption; In all controversies
regarding custody of minors, the foremost consideration is the moral,
physical and social welfare of the child; Provision that no mother shall
be separated from a child under 5 years of age will not apply where the
court finds compelling reasons to rule otherwise.In all cases involving
the custody, care, education and property of children, the latters
welfare is paramount. The provision that no mother shall be
separated from a child under five (5) years of age, will not apply where
the court finds compelling reasons to rule otherwise. In all
controversies regarding the custody of minors, the foremost
consideration is the moral, physical and social welfare of the child
concerned, taking into account the resources and moral as well as
social standing of the contending parents. Never has this Court
deviated from this criterion.
Same; Same; Same; Petitioners who are legally married, are morally,
physically, financially and socially capable of supporting the minor and
giving her a future better than the natural mother.Is it undisputed
that respondent Conrado Fajardo is legally married to a woman other
than respondent Gina Carreon, and his relationship with the latter is
a common-law husband and wife relationship. His open cohabitation
with co-respondent Gina Carreon will not accord the minor that
desirable atmosphere where she can grow and develop into an upright
and moral-minded person. Besides, respondent Gina Carreon had
previously given birth to another child by another married man with
whom she lived for almost three (3) years but who eventually left her
and vanished. For a minor (like Angelie Anne C. Cervantes) to grow up
with a sister whose father is not her true father, could also affect the
moral outlook and values of said minor. Upon the other hand,
petitioners who are legally married appear to be morally, physically,
financially, and socially capable of supporting the minor and giving
her a future better than what the natural mother (herein respondent
Gina Carreon), who is not only jobless but also maintains an illicit
relation with a married man, can most likely give her.

Same; Same; Same; Where the minor has been legally adopted by
petitioners and a decree of adoption dissolved the authority of the
natural parents over the adopted child, parental authority over the
adopted child shall be exercised jointly by both spouses.Besides, the
minor has been legally adopted by petitioners with the full knowledge
and consent of respondents. A decree of adoption has the effect,
among others, of dissolving the authority vested in natural parents
over the adopted child, except where the adopting parent is the
spouse of the natural parent of the adopted, in which case, parental
authority over the adopted shall be exercised jointly by both spouses.
The adopting parents have the right to the care and custody of the
adopted child and exercise parental authority and responsibility over
him.
PETITION for a writ of Habeas Corpus re: Angelie Anne Cervantes.
The facts are stated in the Resolution of the Court.
Yolando F. Lim for petitioners.
Voltaire C. Campomanes for respondents.
RESOLUTION
PADILLA, J.:
This is a petition for a writ of Habeas Corpus filed with this Court over
the person of the minor Angelie Anne Cervantes. In a resolution,
dated 5 October 1987, the Court resolved to issue the writ returnable
to the Executive Judge, Regional Trial Court of Pasig at the hearing of
12 October 1987 at 8:30 a.m. Said Judge was directed to hear the
case and submit his report and recommendation to the Court.
On 3 December 1987, said Executive Judge, Regional Trial Court of
Pasig submitted to the Court his report and recommendation, also
dated 3 December 1987.
It appears that the minor was born on 14 February 1987 to
respondents Conrado Fajardo and Gina Carreon, ,who are commonlaw husband and wife. Respondents offered the child for adoption to
Gina Carreons sister and brother-in-law, the herein petitioners
Zenaida Carreon-Cervantes and Nelson Cervantes, spouses, who took
care and custody of the child when she was barely two (2) weeks old.
An Affidavit of Consent to the adoption of the child by herein

166

petitioners, was also executed by respondent Gina Carreon on 29

April 1987.1
The appropriate petition for adoption (Sp. Proc. No. 057-B) was filed
by herein petitioners over the child before the Regional Trial Court of
Rizal, Fourth Judicial District, Branch 67 which, on 20 August 1987,
rendered a decision2 granting the petition. The child was then known
as Angelie Anne Fajardo. The court ordered that the child be freed
from parental authority of her natural parents as well as from legal
obligation and maintenance to them and that from now on shall be,
for all legal intents and purposes, known as Angelie Anne Cervantes,
a child of herein petitioners and capable of inheriting their estate." 3
Sometime in March or April 1987, the adoptive parents, herein
petitioners Nelson and Zenaida Cervantes, received a letter from the
respondents demanding to be paid the amount of P150,000.00,
otherwise, they would get back their child. Petitioners refused to
accede to the demand.
As a result, on 11 September 1987, while petitioners were out at
work, the respondent Gina Carreon took the child from her yaya at
the petitioners residence in Angono, Rizal, on the pretext that she
was instructed to do so by her mother. Respondent Gina Carreon
brought the child to her house in Paraaque. Petitioners thereupon
demanded the return of the child, but Gina Carreon refused, saying
that she had no desire to give up her child for adoption and that the
affidavit of consent to the adoption she had executed was not fully
explained to her. She sent word to the petitioners that she will,
however, return the child to the petitioners if she were paid the
amount of P150,000.00.
Felisa Tansingco, the social worker who had conducted the case study
on the adoption and submitted a report thereon to the Regional Trial
Court of Rizal in the adoption case, testified on 27 October 1987
before the Executive Judge, Regional Trial Court of Pasig in
connection with the present petition. She declared that she had
interviewed respondent Gina Carreon on 24 June 1987 in connection
with the contemplated adoption of the child. During the interview,
said respondent manifested to the social worker her desire to have the
child adopted by the petitioners.4
In all cases involving the custody, care, education and property of
children, the latters welfare is paramount. The provision that no
mother shall be separated from a child under five (5) years of age, will
not apply where the Court finds compelling reasons to rule

otherwise.5 In all controversies regarding the custody of minors, the

foremost consideration is the moral, physical and social welfare of the
child concerned, taking into account the resources and moral as well
as social standing of the contending parents. Never has this Court
deviated from this criterion.6
It is undisputed that respondent Conrado Fajardo is legally married to
a woman other than respondent Gina Carreon, and his relationship
with the latter is a common-law husband and wife relationship. His
open cohabitation with co-respondent Gina Carreon will not accord
the minor that desirable atmosphere where she can grow and develop
into an upright and moral-minded person. Besides, respondent Gina
Carreon had previously given birth to another child by another
married man with whom she lived for almost three (3) years but who
eventually left her and vanished. For a minor (like Angelie Anne C.
Cervantes) to grow up with a sister whose father is not her true
father, could also affect the moral outlook and values of said minor.
Upon the other hand, petitioners who are legally married appear to be
morally, physically, financially, and socially capable of supporting the
minor and giving her a future better than what the natural mother
(herein respondent Gina Carreon), who is not only jobless but also
maintains an illicit relation with a married man, can most likely give
her.
Besides, the minor has been legally adopted by petitioners with the
full knowledge and consent of respondents. A decree of adoption has
the effect, among others, of dissolving the authority vested in natural
parents over the adopted child, except where the adopting parent is
the spouse of the natural parent of the adopted, in which case,
parental authority over the adopted shall be exercised jointly by both
spouses.7 The adopting parents have the right to the care and custody
of the adopted child8 and exercise parental authority and
responsibility over him.9
ACCORDINGLY, and as recommended by the Executive Judge,
Regional Trial Court of Pasig, Hon. Eutropio Migrino, the Petition is
GRANTED. The custody and care of the minor Angelie Anne Cervantes
are hereby granted to petitioners to whom they properly belong, and
respondents are ordered (if they still have not) to deliver said minor to
the petitioners immediately upon notice hereof. This resolution is
immediately executory.
SO ORDERED.

167

Melencio-Herrera (Chairman), Paras, Sarmiento and Regalado, JJ.,

concur.

G.R. No. 85044. June 3, 1992.*

MACARIO TAMARGO, CELSO TAMARGO and AURELIA TAMARGO,
petitioners, vs. THE HON. COURT OF APPEALS; THE HON.
ARISTON L. RUBIO, RTC Judge, Branch 20, Vigan, IIocos Sur;
VICTOR BUNDOC; and CLARA BUNDOC, respondents.
Supreme Court; Motions; While notice of time and place of hear-ing is
mandatory in motion, Supreme Court may suspend its rules thereon to
prevent manifest injustice to appellantAs 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. 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.
Actions; Quasi-delicts; Parents and Child; Adoption; The natural
parents of a minor still living with the former when the latter
accidentally shot a girl with an air rifle are liable for damages thus
caused rather than the adopter even if petition for adoption filed before
the accident and granted thereafter.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 given to the decree of adoption so as to
impose a liability upon the adopting parents accruing at a time when
the adopting parents had no actual or physical custody over the
adopted child. Retroactive effect 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.
Same; Same.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 had 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.
PETITION for review of the decision of the Court of Appeals
The facts are stated in the opinion of the Court.
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 for 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.

168

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 Courtthat 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 hearingboth 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 of 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 a 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 x x x."

169

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." (Italics 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 parentstheir
parental authoritywhich 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
electand our Legislature has so electedto 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
extracontractual liabilitywith certain well-defined exceptionsto
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 agents 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
(Italics 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 act, 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 overturned 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 occurred 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 with 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 Code8 which reads as follows:
"Article 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 as of the date the

170

original petition was filed. The decree shall state the name by which
the child is thenceforth to be known." (Italics 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" (Italics 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. TortsParents and guardians are responsible for the
damage caused by the child under their parental authority in
accordance with the Civil Code." (Italics 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 been 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." (Italics 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 given to

the decree of adoption so as to impose a liability upon the adopting
parents accruing at a time when the adopting parents had no actual or
physical custody over the adopted child. Retroactive effect 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." (Italics supplied)
Under the above Article 35, parental authority is provisionallyvested
in the adopting parents during the period of trial custody, i.e., before
the issuance of a decree of adoption, preciselybecause the adopting
parents are given actual custody of thechild during such trial period. In
the instant case, the trialcustody period either had not yet begun or
had already beencompleted 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.

171

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 CA-G.R. No. SP15016 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.
Gutierrez, Jr. (Chairman), Bidin, Davide, Jr. and Romero, JJ.,
concur.
Petition granted; decision reversed and set aside.

172

G.R. No. 143989. July 14, 2003.*

ISABELITA S. LAHOM, petitioner, vs. JOSE MELVIN SIBULO
(previously referred to as DR. MELVIN S. LAHOM), respondent.
Civil Law; Adoption; The Philippines, a State Party to the Convention of
the Rights of the Child accepted the principle that adoption was
impressed with social and moral responsibility, and that its underlying
intent was geared to favor the adopted child; Republic Act No. 8552
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.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,
followed by the United Nations Declarations of the Rights of the Child,
were written instruments that would also protect and safeguard the
rights of adopted children. The Civil Code of the Philippines of 1950
on adoption, later modified by the Child and Youth Welfare Code and
then by the Family Code of the Philippines, gave 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.
Same; Same; Vested right includes not only legal or equitable title to
the enforcement of a demand but also exemption from new obligations
created after the right has become vested; Rights are considered vested
when the right to enjoyment is a present interest, absolute,
unconditional and perfect or fixed and irrefutable.The concept of
vested right is a consequence of the constitutional guaranty of due
process that expresses a present fixed interestwhich in right reason
and natural justice is protected against arbitrary state action; 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. Rights are considered vested when the right
to enjoyment is a present interest, absolute, unconditional, and
perfect or fixed and irrefutable.
Same; Same; 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.It was months after the effectivity of R.A.
No. 8552 that herein petitioner filed an action to revoke the decree of
adoption granted in 1975. By then, the new law, 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.
Same; Same; 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; 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.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 100 of the Rules of Court and that the adopter
would lose the right to revoke the adoption decree after the lapse of
that period. The exercise of the right within a prescriptive period is a
condition that could not fulfill the requirements of a vested right
entitled to protection. It must also be acknowledged that a person has
no vested right in statutory privileges. 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. It is a privilege that is governed by the states determination
on what it may deem to be for the best interest and welfare of the
child. 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. Concomitantly, a right of actiongiven by
statute may be taken away at anytime before it has been exercised.
Same; Same; 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.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

173

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.

2.

PETITION for review on certiorari of a decision of the Regional Trial

Court of Naga City, Br. 20.
The facts are stated in the opinion of the Court.

3.

Romeo A. Tablizo for petitioner.

Vicente B. De Lima and Simeon C. Liwag for private respondent.

4.

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 Isabelitas 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
1. 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 respondents adoption,
but was prevented by petitioners supplication, however with

5.

6.

his further request upon petitioner to give to charity whatever

properties or interest may pertain to respondent in the future.
x x x
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.
x x x
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
petitioners 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 respondents insensible attitude resulting
in a strained and uncomfortable relationship between him and
petitioner, the latter has suffered wounded feelings, knowing
that after all respondents 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:

174

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 3482 of the Civil Code
and Article 1923 of the Family Code.
In an order, dated 28 April 2000, the trial court held thusly:
On the issue of jurisdiction over the subject matter of the suit,
Section 5(c) of R.A. No. 8369 confers jurisdiction to this Court, having
been designated Family Court in A.M. No. 99-11-07 SC.
On the matter of no cause of action, the test on the sufficiency of the
facts alleged in the complaint, is whether or not, admitting the facts
alleged, the Court could render a valid judgment in accordance with
the prayer of said complaint (De Jesus, et al. vs. Belarmino, et al., 95
Phil. 365).
Admittedly, Section 19, Article VI of R.A. No. 8552 deleted the right of
an adopter to rescind an adoption earlier granted under the Family
Code. Conformably, on the face of the petition, indeed there is lack of
cause of action.
Petitioner however, insists that her right to rescind long acquired
under the provisions of the Family Code should be respected.
Assuming for the sake of argument, that petitioner is entitled to
rescind the adoption of respondent granted on May 5, 1972, said right

should have been exercised within the period allowed by the Rules.
From the averments in the petition, it appears clear that the legal
grounds for the petition have been discovered and known to petitioner
for more than five (5) years, prior to the filing of the instant petition on
December 1, 1999, hence, the action if any, had already prescribed.
(Sec. 5, Rule 100 Revised Rules of Court)
WHEREFORE, in view of the foregoing consideration, the petition is
ordered dismissed.4
Via a petition for review on certiorari under Rule 45 of the 1997 Rules
of Court, petitioner raises the following questions; viz:
1. 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. 2. In the affirmative, has the adopters 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
adopters 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,14 gave 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

175

that adoption was impressed with social and moral responsibility, and
that its underlying intent was geared to favor the adopted child. R.A.
No. 8552 secured these rights and privileges for the adopted. Most
importantly, it affirmed the legitimate status of the adopted child, not
only in his new family but also in the society as well. The new law
withdrew the right of an adopter to rescind the adoption decree and
gave to the adopted child the sole right to sever the legal ties created
by adoption.
Petitioner, however, would insist that R.A. No. 8552 should not
adversely affect her right to annul the adoption decree, nor deprive
the trial court of its jurisdiction to hear the case, both being vested
under the Civil Code and the Family Code, the laws then in force.
The concept of vested right is a consequence of the constitutional
guaranty of due process15 that expresses a present fixed interestwhich
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.
InRepublic 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 eitherspouse or bothof 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 Michaels adoption having theretofore been taken into their
care. At the time the action was commenced, P.D. No. 603 allowed
aliens to adopt. After the decree of adoption and while on appeal
before the Court of Appeals, the Family Code was enacted into law on
08 August 1988 disqualifying aliens from adopting Filipino children.

The Republic then prayed for the withdrawal of the adoption decree.
In discarding the argument posed by the Republic, the Supreme
Court ruled that the controversy should be resolved in the light of the
law governing at the time the petition was filed.
It was months after the effectivity of R.A. No. 8552 that herein
petitioner filed an action to revoke the decree of adoption granted in
1975. By then, the new law,22 had already abrogated and repealed the
right of an adopter under the Civil Code and the Family Code to
rescind a decree of adoption. Consistently with its earlier
pronouncements, the Court should now hold that the action for
rescission of the adoption decree, having been initiated by petitioner
after R.A. No. 8552 had come into force, no longer, could be pursued.
Interestingly, even before the passage of the statute, an action to set
aside the adoption is subject to the five-year bar rule under Rule
10023 of the Rules of Court and that the adopter would lose the right
to revoke the adoption decree after the lapse of that period. The
exercise of the right within a prescriptive period is a condition that
could not fulfill the requirements of a vested right entitled to
protection. It must also be acknowledged that a person has no vested
right in statutory privileges.24 While adoption has often been referred
to in the context of a right, the privilege to adopt is itself not
naturally innate or fundamental but rather a right merely created by
statute.25 It is a privilege that is governed by the states 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 actiongiven 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.

176

WHEREFORE, the assailed judgment of the court a quo is AFFIRMED.

No costs.
G.R. No. 148311. March 31, 2005.*
IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY
ASTORGA GARCIA, HONORATO B. CATINDIG, petitioner.
Parents and Children; Adoption; Names; It is both of personal as well
as public interest that every person must have a name.For all
practical and legal purposes, a mans 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.
It is both of personal as well as public interest that every person must
have a name.
Same; Same; Same; The name of an individual has two partsthe
given or proper name and the surname or family name; 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.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.
Same; Same; Same; Words and Phrases; 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; 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.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. 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. 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. 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. Republic Act No. 8552, otherwise known as the
Domestic Adoption Act of 1998, secures these rights and privileges
for the adopted.
Same; Same; Same; An adopted child 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.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.
Same; Same; Same; Statutory Construction; Adoption statutes, being
humane and salutary, should be liberally construed to carry out the
beneficent purposes 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. The interests and
welfare of the adopted child are of primary and paramount
consideration, hence, every reasonable intendment should be
sustained to promote and fulfill these noble and compassionate
objectives of the law.
Same; Same; Same; Same; Article 10 of the Civil Code which presumes
in the interpretation of application of law that the lawmaking body
intended right and justice to prevail was intended to strengthen the
determination of the courts to avoid an injustice which may apparently
be authorized by some way of interpreting the law. 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 law-making 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.
Same; Same; Same; Same; Since there is no law prohibiting an
illegitimate child adopted by her natural father to use, as middle name
her mothers surname, the Court finds no reason why she should not be

177

allowed to do so.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.
PETITION for review on certiorari of a decision of the Regional Trial
Court of Malolos, Bulacan, Br. 13.
The facts are stated in the opinion of the Court.
Catindig, Tiongco & Nibungco for petitioner.
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 child Stephanie 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
reconsideration5 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

178

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.

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.

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

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. (1) Her maiden first name and surname and add her
husbands surname, or
2. (2) Her maiden first name and her husbands surname or
3. (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
husbands surname, unless:
1. (1) The court decrees otherwise, or
2. (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 surname employed before the legal
separation.
Art. 373. A widow may use the deceased husbands surname as
though he were still living, in accordance with Article 370.

179

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. (1) Add a middle name or the mother's surname, or
2. (2) Add the Roman numerals II, III, and so on.
x x x
Law
Is
Middle Name

Silent

As

To

The

Use

Of

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

180

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.13 Again, 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
Is In Favor of the Adopted Child

of

Adoption

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
Statutes In Favor Of Adoption

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.

181

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.
Panganiban (Chairman), Corona, Carpio-Morales and Garcia, JJ.,
concur.
Petition granted.
Notes.A person may be known by several aliases, irrespective of his
knowledge or consent to the use thereof. (People vs. Bergonio, Jr., 340
SCRA 269 [2000])
Since the use of initials, instead of a given name, before a surname,
has become a practice, the necessity that these initials be all given
and correctly given in court proceedings has become of importance in
every case, and in many, absolutely essential to a correct designation
of the person intendeda middle name is very important or even
decisive in a case in which the issue is as between two persons who
have the same first name and surname, did the act complained of, or
is injured or sued or the like. (United Coconut Planters Bank vs.
Ramos, 415 SCRA 596 [2003])

182

SUPPORT
G.R. No. 150644. August 28, 2006.*
EDWARD V. LACSON, petitioner, vs. MAOWEE DABAN LACSON
and MAONAA DABAN LACSON, represented by their mother and
guardian ad-litem, LEA DABAN LACSON, respondents.
Parent and Child; Support; Asking one to comply with his obligation to
support owing to the urgency of the situation is no less a demand
because it came by way of a request or a plea.Petitioner admits
being obliged, as fa-ther, to provide support to both respondents,
Maowee and Maonaa. It is his threshold submission, however, that he
should not be made to pay support in arrears, i.e., from 1976 to 1994,
no previous extrajudicial, let alone judicial, demand having been
made by the respondents. He invokes the following provision of the
Family Code to complete his point: Article 203The obligation to give
support shall be demandable from the time the person who has a
right to receive the same needs it for maintenance, but it shall not be
paid except from the date of judicial or extrajudicial demand. To
petitioner, his obligation to pay under the aforequoted provision starts
from the filing of Civil Case No. 22185 in 1995, since only from that
moment can it be said that an effective demand for support was made
upon him. Petitioners above posture has little to commend itself. For
one, it conveniently glossed over the fact that he veritably abandoned
the respondent sisters even before the elder of the two could celebrate
her second birthday. To be sure, petitioner could not plausibly expect
any of the sisters during their tender years to go through the motion
of demanding support from him, what with the fact that even their
mother (his wife) found it difficult during the period material to get in
touch with him. For another, the requisite demand for support
appears to have been made sometime in 1975. It may be that Lea
made no extrajudicial demand in the sense of a formal written
demand in terms and in the imperious tenor commonly used by legal
advocates in a demand letter. Nonetheless, what would pass as a
demand was, however, definitely made. Asking one to comply with his
obligation to support owing to the urgency of the situation is no less a
demand because it came by way of a request or a plea.
Appeals; The jurisdiction of the Supreme Court in a petition for review is
generally limited to correction of errors of law.The Court finds no
adequate reason to disturb the factual determination of the CA
confirmatory of that of the trial court respecting the demand Lea

made on the petitioner to secure support for the respondents. As a

matter of long and sound appellate practice, factual findings of the CA
are accorded respect, if not finality, save for the most compelling and
cogent reasons. Not one of the well-recognized exceptions to this rule
on conclusiveness of factual findings appear to obtain in this case.
Accordingly, the Court cannot grant the petitioners plea for a review
of the CAs findings bearing on the actuality that, as basis for an
award of support in arrears, an extrajudicial demand for support had
been made on the petitioner as evidenced by the December 10, 1975
note adverted to. Lest it be overlooked, the jurisdiction of the Court in
a petition for review, as here, is generally limited to correction of
errors of law. Complementing that postulate is the rule that the Court
is not bound to analyze and weigh all over again the evidence already
considered in the proceedings below, except when, as earlier
indicated, compelling reasons demand a review of the factual
conclusions drawn from such evidence.
Parent and Child; Support; Unjust Enrichment; When the person obliged
to support another unjustly refuses or fails to give support when
urgently needed by the latter, any third person may furnish support to
the needy individual, with right of reimbursement from the person
obliged to give support, and contextually, the resulting juridical
relationship is a quasi-contract, an equitable principle enjoining one
from unjustly enriching at the expense of another.Petitioners second
specification of error touches on the CAs affirmatory holding that
respondents uncle, Noel Daban, advanced the money for their
support. Again, petitioners lament on the matter is a veritable call for
review of factual determinations of the two courts below. It need not,
accordingly, detain us long. Suffice it to state in that regard that, of
their close relatives, the respondents appeared to have stayed longest
with their uncle, Noel Daban. Noteworthy also is the fact that
petitioner, from 1976 to 1994, only gave Maowee and Maonaa token
amounts for schooling when support comprises everything
indispensable for sustenance, dwelling, clothing, medical attendance
and education, or, in short, whatever is necessary to keep a person
alive. Logically, the sisters would, thru their mother, turn to their
uncle (Noel Daban) for their sustenance and education when
petitioner failed to give the same, a failing which stretched from their
pre-schooling days to their college years. Since such failure has been
established, it is not amiss to deduce, as did the trial court and the
CA, that Noel Daban who, owing to consideration of kinship, had
reasons to help, indeed lent his sister Lea money to support her
children. Pursuant to Article 207 of the Family Code, Noel Daban can
rightfully exact reimbursement from the petitioner. The provision
reads: When the person obliged to support another unjustly refuses or

183

fails to give support when urgently needed by the latter, any third
person may furnish support to the needy individual, with right of
reimbursement from the person obliged to give support. Mention may
also be made that, contextually, the resulting juridical relationship
between the petitioner and Noel Daban is a quasi-contract, an
equitable principle enjoining one from unjustly enriching himself at
the expense of another.
Same; Same; 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.As for the amount of support in
arrears, there is also no reason to disturb the absolute figures arrived
at by the two courts below, appearing as they do to be reasonable and
proper. Arbitrariness respecting the determination of the final
numbers cannot plausibly be laid on the doorsteps of the CA, and the
trial court before it, considering that they fixed such amount based on
the varying needs of the respondents during the years included in the
computation and to the financial resources of the petitioner, as
proved by the evidence adduced below. As a matter of law, the
amount of support which those related by marriage and family
relationship is generally obliged to give each other shall be in
proportion to the resources or means of the giver and to the needs of
the recipient.
PETITION for review on certiorari of the decision and resolution of the
Court of Appeals.
The facts are stated in the opinion of the Court.
Fornier & Fornier Law Firm for petitioner.
Darril P. Venus for respondents.
GARCIA, J.:
Petitioner Edward V. Lacson, father of the respondent sisters Maowee
Daban Lacson and Maonaa Daban Lacson and husband of their
mother and guardian ad-litem, Lea Daban Lacson, has come to this
Court via this petition for review under Rule 45 of the Rules of Court
to seek the reversal and setting aside of the Decision 1 dated July 13,
2001 of the Court of Appeals (CA) in CA-G.R. CV No. 60203, as
reiterated in its Resolution2 of October 18, 2001 denying his motion
for reconsideration.

From the petition and its annexes, the respondents reply thereto, and
other pleadings, the Court gathers the following facts:
The sisters Maowee Daban Lacson and Maonaa Daban Lacson are
legitimate daughters of petitioner Edward V. Lacson and his wife, Lea
Daban Lacson. Maowee was born on December 4, 1974, while
Maonaa, a little less than a year later. Not long after the birth of
Maonaa, petitioner left the conjugal home in Molo, Iloilo City, virtually
forcing mother and children to seek, apparently for financial reason,
shelter somewhere else. For a month, they stayed with Leas motherin-law, Alicia Lacson, then with her (Leas) mother and then with her
brother Noel Daban. After some time, they rented an apartment only
to return later to the house of Leas mother. As the trial court aptly
observed, the sisters and their mother, from 1976 to 1994, or for a
period of eighteen (18) years, shuttled from one dwelling place to
another not their own.
It appears that from the start of their estrangement, Lea did not
badger her husband Edward for support, relying initially on his
commitment memorialized in a note dated December 10, 1975 to give
support to his daughters. As things turned out, however, Edward
reneged on his promise of support, despite Leas efforts towards
having him fulfill the same. Lea would admit, though, that Edward
occasionally gave their children meager amounts for school expenses.
Through the years and up to the middle part of 1992, Edwards
mother, Alicia Lacson, also gave small amounts to help in the
schooling of Maowee and Maonaa, both of whom eventually took up
nursing at St. Pauls College in Iloilo City. In the early part of 1995
when Lea, in behalf of her two daughters, filed a complaint against
Edward for support before the Regional Trial Court of Iloilo City,
Branch 33, Maowee was about to graduate.
In that complaint dated January 30, 1995, as amended, 3 docketed as
Civil Case No. 22185, Maowee and Maonaa, thru their mother,
averred that their father Edward, despite being gainfully employed
and owning several pieces of valuable lands, has not provided them
support since 1976. They also alleged that, owing to years of Edwards
failure and neglect, their mother had, from time to time, borrowed
money from her brother Noel Daban. As she would later testify, Lea
had received from Noel, by way of a loan, as much as P400,000.00 to
P600,000.00.
In his Answer, Edward alleged giving to Maowee and Maonaa
sufficient sum to meet their needs. He explained, however, that his
lack of regular income and the unproductivity of the land he

184

inherited, not his neglect, accounted for his failure at times to give
regular support. He also blamed financial constraint for his inability
to provide the P12,000.00 monthly allowance prayed for in the
complaint.
As applied for and after due hearing, the trial court granted the
sisters Maowee and Maonaa support pendente lite at P12,000.00 per
month, subject to the schedule of payment and other conditions set
forth in the courts corresponding order of May 13, 1996. 4
Following trial, the RTC rendered on June 26, 1997 judgment finding
for the plaintiff sisters, as represented by their mother. In that
judgment, the trial court, following an elaborate formula set forth
therein, ordered their defendant father Edward to pay them a specific
sum which represented 216 months, or 18 years, of support in
arrears. The fallo of the trial courts decision5 reads:
WHEREFORE, judgment is hereby rendered:
1. 1) Ordering defendant to compensate plaintiffs support in
arrears in the amount of TWO MILLION FOUR HUNDRED
NINETY-SIX THOUSAND (P2,496,000.00) PESOS from which
amount shall be deducted ONE HUNDRED TWENTY-FOUR
(P124,000.00) PESOS that which they received from defendant
for two years and that which they received by way of support
pendente lite;
2. 2) Ordering defendant to pay TWENTY THOUSAND
(P20,000.00) PESOS as attorneys fees; and
3. 3) Pay costs.
SO ORDERED.
Therefrom, Edward appealed to the CA whereat his recourse was
docketed as CA-G.R. CV. No. 60203.
Eventually, the CA, in the herein assailed Decision dated July 13,
2001,6 dismissed Edwards appeal, disposing as follows:
WHEREFORE, premises considered, the present appeal is hereby
DISMISSED and the appealed Decision in Civil Case No. 22185 is
hereby AFFIRMED.
Double costs against the defendant-appellant [Edward Lacson].

SO ORDERED. (Words in bracket added.)

In time, Edward moved for reconsideration, but his motion was denied
by the appellate court in its equally assailed Resolution of Octo-ber
18, 2001.7
Hence, Edwards present recourse on his submission that the CA
erred
1. I. X X X WHEN IT AFFIRMED THE GRANT OF SUPPORT IN
ARREARS FROM 1976 TO 1994.
2. II. X X X IN AFFIRMING THE ALLEGED ADVANCES OF
SUPPORT BY RESPONDENTS UNCLE NOEL DABAN.
3. III. X X X IN AFFIRMING THE AWARD OF SUPPORT EVEN IF
PETITIONER IS NOT FINANCIALLY CAPABLE OF PROVIDING
THE SAME TO RESPONDENTS.
4. IV. X X X WHEN IT ORDERED PETITIONER TO PROVIDE
SUPPORT TO X X X RESPONDENTS EVEN IF PETITIONERS
OBLIGATION TO PROVIDE SUPPORT HAD ALREADY BEEN
COMPLETELY SATISFIED BY THE PROCEEDS OF THE SALE
OF HIS EXCLUSIVE PROPERTY WHICH WERE ALL
APPROPRIATED BY THE . . . RESPONDENTS.
The petition lacks merit.
Petitioner admits being obliged, as father, to provide support to both
respondents, Maowee and Maonaa. It is his threshold submission,
however, that he should not be made to pay support in arrears, i.e.,
from 1976 to 1994, no previous extrajudicial, let alone judicial,
demand having been made by the respondents. He invokes the following provision of the Family Code to complete his point:
Article 203The obligation to give support shall be demandable from
the time the person who has a right to receive the same needs it for
maintenance, but it shall not be paid except from the date of judicial
or extrajudicial demand.
To petitioner, his obligation to pay under the aforequoted provision
starts from the filing of Civil Case No. 22185 in 1995, since only from
that moment can it be said that an effective demand for support was
made upon him.
Petitioners above posture has little to commend itself. For one, it
conveniently glossed over the fact that he veritably abandoned the

185

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

xxx

xxx

Last December 10, 1975, [petitioner] committed self for the support of
his children, the [respondents] herein but failing, plaintiffs mother
asked extrajudicially for her childrens support since 1976, when she
went to her mothers house. . . . .8 (Words in bracket and italics
added.)
The appellate court made a parallel finding on the demand angle,
formulating the same in the following wise:
We could not confer judicial approval upon [petitioners] posture of
trying to evade his responsibility to give support to his daughters
simply because their mother did not make a formal demand therefor
from him. [Peti-tioners] insistence on requiring a formal demand from
his wife is truly pointless, in the face of his acknowledgment of and
commitment to comply with such obligation through a note in his own
handwriting. Said note [stating that he will sustain his two daughters
Maowee and Maonaa] also stated as requested by their mother thus
practically confirming the fact of such demand having been made by
[respondents] mother. The trial court thus correctly ruled that

[petitioners] obligation to pay support in arrears should commence

from 1976.9 (Words in bracket added)
The Court finds no adequate reason to disturb the factual
determination of the CA confirmatory of that of the trial court
respecting the demand Lea made on the petitioner to secure support
for the respondents. As a matter of long and sound appellate practice,
factual findings of the CA are accorded respect, if not finality, save for
the most compelling and cogent reasons.10 Not one of the wellrecognized exceptions to this rule on conclusiveness of factual
findings appear to obtain in this case. Accordingly, the Court cannot
grant the petitioners plea for a review of the CAs findings bearing on
the actuality that, as basis for an award of support in arrears, an
extrajudicial demand for support had been made on the petitioner as
evidenced by the Decem-ber 10, 1975 note adverted to. Lest it be
overlooked, the jurisdiction of the Court in a petition for review, as
here, is generally limited to correction of errors of law. Complementing
that postulate is the rule that the Court is not bound to analyze and
weigh all over again the evidence already considered in the
proceedings below,11 except when, as earlier indicated, compelling
reasons demand a review of the factual conclusions drawn from such
evidence.
Petitioners second specification of error touches on the CAs affirmatory holding that respondents uncle, Noel Daban, advanced the
money for their support. Again, petitioners lament on the matter is a
veritable call for review of factual determinations of the two courts
below. It need not, accordingly, detain us long. Suffice it to state in
that regard that, of their close relatives, the respondents appeared to
have stayed longest with their uncle, Noel Daban. Noteworthy also is
the fact that petitioner, from 1976 to 1994, only gave Maowee and
Maonaa token amounts for schooling when support comprises
everything indispensable for sustenance, dwelling, clothing, medical
attendance and education,12 or, in short, whatever is necessary to
keep a person alive. Logically, the sisters would, thru their mother,
turn to their uncle (Noel Daban) for their sustenance and education
when petitioner failed to give the same, a failing which stretched from
their pre-schooling days to their college years. Since such failure has
been established, it is not amiss to deduce, as did the trial court and
the CA, that Noel Daban who, owing to consideration of kinship, had
reasons to help, indeed lent his sister Lea money to support her
children.
Pursuant to Article 207 of the Family Code, Noel Daban can rightfully
exact reimbursement from the petitioner. The provision reads:

186

When the person obliged to support another unjustly refuses or fails

to give support when urgently needed by the latter, any third person
may furnish support to the needy individual, with right of
reimbursement from the person obliged to give support.
Mention may also be made that, contextually, the resulting juridical
relationship between the petitioner and Noel Daban is a quasicontract,13 an equitable principle enjoining one from unjustly
enriching himself at the expense of another.
As for the amount of support in arrears, there is also no reason to
disturb the absolute figures arrived at by the two courts below,
appearing as they do to be reasonable and proper. Arbitrariness
respecting the determination of the final numbers cannot plausibly be
laid on the doorsteps of the CA, and the trial court before it,
considering that they fixed such amount based on the varying needs
of the respondents during the years included in the computation and
to the financial resources of the petitioner, as proved by the evidence
adduced below. As a matter of law, the amount of support which
those related by marriage and family relationship is generally obliged
to give each other shall be in proportion to the resources or means of
the giver and to the needs of the recipient.14
Petitioner closes his petition by urging the Court, as it did the CA
earlier, to consider a transaction that transpired after the trial court
had rendered judgment. We refer to the sale by Lea of half of what
petitioner claims to be his exclusive or capital property. As the
petitioner would have this Court believe, Lea and the respondent
sisters appropriated the P5 Million proceeds of the sale for
themselves. Pressing on, he alleged that the amount thus received
from the sale is more than enough to fully satisfythus release him
from complying with the underlying judgment for support, assuming
ex gratia argu-menti his obligation to pay support in arrears.

proceeds of the sale went to them and may be set off for what
petitioner owes them by way of support in arrears is unacceptable,
being at best gratuitous and self-serving.
Petitioner, unlike any good father of a family, has been remiss in his
duty to provide respondents with support practically all throughout
their growing years. At bottom, the sisters have been deprived by a
neglectful father of the basic necessities in life as if it is their fault to
have been born. This disposition is thus nothing more than a belated
measure to right a wrong done the herein respondents who are no
less petitioners daughters.
WHEREFORE, the instant petition is DENIED and the appealed CA
decision and resolution are AFFIRMED.
Costs against petitioner.
SO ORDERED.
Puno (Chairperson), Sandoval-Gutierrez, Corona and Azcuna, JJ.,
concur.
Petition denied, appealed decision and resolution affirmed.
Notes.Future support cannot be the subject of a compromise. 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. (De Asis vs. Court of
Appeals, 303 SCRA 176 [1999])
Resemblance between a minor and his alleged parent is competent
and material evidence to establish parentage. (Tijing vs. Court of
Appeals, 354 SCRA 17 [2001])

Petitioners above submission is flawed by the premises holding it

together. For firstly, it assumes as a fact that what was sold for P5
Million was indeed his exclusive property. But, as the CA aptly
observed, there is no showing whether the property subject of the
transaction mentioned by [the petitioner] is a conjugal property or
[his] exclusive property, as in fact [respondents] mother asserts that
she and [petitioner] had separately sold their respective shares on
said property.15
Secondly, the respondent sisters were not party to the sale
aforementioned. Petitioners suggestion, therefore, that part of the

187

PARENTAL AUTHORITY
G.R. No. 111180. November 16, 1995.*
DAISIE T. DAVID, petitioner, vs. COURT OF APPEALS, RAMON R.
VILLAR, respondents.
Habeas Corpus; Parent and Child; Custody; While it is true that the
determination of the right to the custody of minor children is relevant in
cases where the parents, who are married to each other, are for some
reason separated from each other, it does not follow that it cannot arise
in any other situation.It is indeed true, as the Court of Appeals
observed, that the determination of the right to the custody of minor
children is relevant in cases where the parents, who are married to
each other, are for some reason separated from each other. It does not
follow, however, that it cannot arise in any other situation. For
example, in the case of Salvaa v. Gaela, it was held that the writ of
habeas corpus is the proper remedy to enable parents to regain the
custody of a minor daughter even though the latter be in the custody
of a third person of her free will because the parents were compelling
her to marry a man against her will.
Same; Same; Same; Family Code; Illegitimate Children; Where the
mother of an illegitimate child has been deprived of her rightful custody
by the childs father, she is entitled to issuance of the writ of habeas
corpus.In the case at bar, Christopher J. is an illegitimate child
since at the time of his conception, his father, private respondent
Ramon R. Villar, was married to another woman other than the childs
mother. As such, pursuant to Art. 176 of the Family Code,
Christopher J. is under the parental authority of his mother, the
herein petitioner, who, as a consequence of such authority, is entitled
to have custody of him. Since, admittedly, petitioner has been
deprived of her rightful custody of her child by private respondent,
she is entitled to issuance of the writ of habeas corpus.
Same; Same; Same; Same; Same; Support; The fact that the father of an
illegitimate child has recognized the minor child may be a ground for
ordering him to give support to the latter, but not for giving him custody
of the child.The fact that private respondent has recognized the
minor child may be a ground for ordering him to give support to the
latter, but not for giving him custody of the child. Under Art. 213 of
the Family Code, no child under seven years of age shall be

separated from the mother unless the court finds compelling reasons
to order otherwise.
Same; Same; Same; Same; Same; Same; That the mother receives help
from her parents and sister for the support of her three children is not a
point against hercooperation, compassion, love and concern for every
member of the family are characteristics of the close family ties that
bind the Filipino family and have made it what it is.Nor is the fact
that private respondent is well-off a reason for depriving petitioner of
the custody of her children, especially considering that she has been
able to rear and support them on her own since they were born.
Petitioner is a market vendor earning from P2,000 to P3,000 per
month in 1993 when the RTC decision was rendered. She augments
her income by working as secretary at the Computer System
Specialist, Inc. earning a monthly income of P4,500.00. She has an
arrangement with her employer so that she can personally attend to
her children. She works up to 8:00 oclock in the evening to make up
for time lost during the day. That she receives help from her parents
and sister for the support of the three children is not a point against
her. Cooperation, compassion, love and concern for every member of
the family are characteristics of the close family ties that bind the
Filipino family and have made it what it is.
Same; Same; Same; Same; Same; Same; Actions; Pleadings and
Practice; Although the question of support is proper in a proceeding for
that purpose, the grant of support in a petition for habeas corpus is
justified where the respondent has expressed willingness to support
the minor child.Although the question of support is proper in a
proceeding for that purpose, the grant of support in this case is
justified by the fact that private respondent has expressed willingness
to support the minor child. The order for payment of allowance need
not be conditioned on the grant to him of custody of the child. Under
Art. 204 of the Family Code, a person obliged to give support can
fulfill his obligation either by paying the allowance fixed by the court
or by receiving and maintaining in the family dwelling the person who
is entitled to support unless, in the latter case, there is a moral or
legal obstacle thereto.
PETITION for review of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Orlando R. Pangilinan for petitioner.

188

Danilo G. Pineda for private respondent.

SO ORDERED.

MENDOZA, J.:

On appeal, the Court of Appeals reversed, holding:

Petitioner Daisie T. David worked as secretary of private respondent

Ramon R. Villar, a businessman in Angeles City. Private respondent is
a married man and the father of four children, all grown-up. After a
while, the relationship between petitioner and private respondent
developed into an intimate one, as a result of which a son,
Christopher J., was born on March 9, 1985 to them. Christopher J.
was followed by two more children, both girls, namely Christine, born
on June 9, 1986, and Cathy Mae on April 24, 1988.

We agree with the respondent-appellants view that this is not proper

in a habeas corpus case.

The relationship became known to private respondents wife when

Daisie took Christopher J. to Villars house at Villa Teresa in Angeles
City sometime in 1986 and introduced him to Villars legal wife.
After this, the children of Daisie were freely brought by Villar to his
house as they were eventually accepted by his legal family.
In the summer of 1991, Villar asked Daisie to allow Christopher J.,
then six years of age, to go with his family to Boracay. Daisie agreed,
but after the trip, Villar refused to give back the child. Villar said he
had enrolled Christopher J. at the Holy Family Academy for the next
school year.
On July 30, 1991, Daisie filed a petition for habeas corpus on behalf
of Christopher J.
After hearing, the Regional Trial Court, Branch 58 at Angeles City,
rendered a decision, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered in
favor of the petitioner and against the respondent:
1. 1. the rightful custody of the minor Christopher J. T. David is
hereby given to the natural mother, the herein petitioner
Daisie T. David;
2. 2. respondent is hereby ordered to give a temporary support of
P3,000.00 a month to the subject minor Christopher J. T.
David, Christine David and Cathy Mae David to take effect
upon the finality of this decision; and
3. 3. to pay the costs of this suit.

Law and jurisprudence wherein the question of custody of a minor

child may be decided in a habeas corpus case contemplate a situation
where the parents are married to each other but are separated. This is
so because under the Family Code, the father and mother have joint
parental authority over their legitimate children and in case of
separation of the parents there is need to determine rightful custody
of their children. The same does not hold true in an adulterous
relationship, as in the case at bar, the child born out of such a
relationship is under the parental authority of the mother by express
provision of the law. Hence, the question of custody and support
should be brought in a case singularly filed for the purpose. In point
of fact, this is more advisable in the case at bar because the trial
court did not acquire jurisdiction over the other minor children of the
petitioner-appellee and respondent-appellant and, therefore, cannot
properly provide for their support.
Admittedly, respondent-appellant is financially well-off, he being a
very rich businessman; whereas, petitioner-appellee depends upon
her sisters and parents for support. In fact, he financially supported
petitioner-appellee and her three minor children. It is, therefore, for
the best interest of Christopher J. that he should temporarily remain
under the custody of respondent-appellant until the issue on custody
and support shall have been determined in a proper case.
WHEREFORE, the decision appealed from is hereby SET ASIDE, and
a NEW ONE ENTERED dismissing the petition for habeas corpus in
Special Proceeding No. 4489.
Daisie in turn filed this petition for review of the appellate courts
decision.
Rule 102, 1 of the Rules of Court provides that the writ of habeas
corpus shall extend to all cases of illegal confinement or detention by
which any person is deprived of his liberty, or by which the rightful
custody of any person is withheld from the person entitled thereto.

189

It is indeed true, as the Court of Appeals observed, that the

determination of the right to the custody of minor children is relevant
in cases where the parents, who are married to each other, are for
some reason separated from each other. It does not
86
86 SUPREME COURT REPORTS ANNOTATED
David vs. Court of Appeals
follow, however, that it cannot arise in any other situation. For
example, in the case of Salvaa v. Gaela,1 it was held that the writ of
habeas corpus is the proper remedy to enable parents to regain the
custody of a minor daughter even though the latter be in the custody
of a third person of her free will because the parents were compelling
her to marry a man against her will.
In the case at bar, Christopher J. is an illegitimate child since at the
time of his conception, his father, private respondent Ramon R. Villar,
was married to another woman other than the childs mother. As
such, pursuant to Art. 176 of the Family Code, Christopher J. is
under the parental authority of his mother, the herein petitioner, who,
as a consequence of such authority, is entitled to have custody of
him.2 Since, admittedly, petitioner has been deprived of her rightful
custody of her child by private respondent, she is entitled to issuance
of the writ of habeas corpus.
Indeed, Rule 102, 1 makes no distinction between the case of a
mother who is separated from her husband and is entitled to the
custody of her child and that of a mother of an illegitimate child who,
by law, is vested with sole parental authority, but is deprived of her
rightful custody of her child.

rendered. She augments her income by working as secretary at the

Computer System Specialist, Inc. earning a monthly income of
P4,500.00. She has an arrangement with her employer so that she
can personally attend to her children. She works up to 8:00 oclock in
the evening to make up for time lost during the day. That she receives
help from her parents and sister for the support of the three children
is not a point against her. Cooperation, compassion, love and concern
for every member of the family are characteristics of the close family
ties that bind the Filipino family and have made it what it is.
Daisie and her children may not be enjoying a life of affluence that
private respondent promises if the child lives with him. It is enough,
however, that petitioner is earning a decent living and is able to
support her children according to her means.
The Regional Trial Court ordered private respondent to give temporary
support to petitioner in the amount of P3,000.00 a month, pending
the filing of an action for support, after finding that private
respondent did not give any support to his three children by Daisie,
except the meager amount of P500.00 a week which he stopped giving
them on June 23, 1992. He is a rich man who professes love for his
children. In fact he filed a motion for the execution of the decision of
the Court of Appeals, alleging that he had observed his son to be
physically weak and pale because of malnutrition and deprivation of
the luxury and amenities he was accustomed to when in the former
custody of the respondent. He prayed that he be given the custody of
the child so that he can provide him with the proper care and
education.

The fact that private respondent has recognized the minor child may
be a ground for ordering him to give support to the latter, but not for
giving him custody of the child. Under Art. 213 of the Family Code,
no child under seven years of age shall be separated from the mother
unless the court finds compelling reasons to order otherwise. 3

Although the question of support is proper in a proceeding for that

purpose, the grant of support in this case is justified by the fact that
private respondent has expressed willingness to support the minor
child. The order for payment of allowance need not be conditioned on
the grant to him of custody of the child. Under Art. 204 of the Family
Code, a person obliged to give support can fulfill his obligation either
by paying the allowance fixed by the court or by receiving and
maintaining in the family dwelling the person who is entitled to
support unless, in the latter case, there is a moral or legal obstacle
thereto.

Nor is the fact that private respondent is well-off a reason for

depriving petitioner of the custody of her children, especially
considering that she has been able to rear and support them on her
own since they were born. Petitioner is a market vendor earning from
P2,000 to P3,000 per month in 1993 when the RTC decision was

In the case at bar, as has already been pointed out, Christopher J.,
being less than seven years of age at least at the time the case was
decided by the RTC, cannot be taken from the mothers custody. Even
now that the child is over seven years of age, the mothers custody
over him will have to be upheld because the child categorically

190

expressed preference to live with his mother. Under Art. 213 of the
Family Code, courts must respect the choice of the child over seven
years of age, unless the parent chosen is unfit and here it has not
been shown that the mother is in any way unfit to have custody of her
child. Indeed, if private respondent loves his child, he should not
condition the grant of support for him on the award of his custody to
him (private respondent).
WHEREFORE, the decision of the Court of Appeals is REVERSED and
private respondent is ORDERED to deliver the minor Christopher J. T.
David to the custody of his mother, the herein petitioner, and to give
him temporary support in the amount of P3,000.00, pending the
fixing of the amount of support in an appropriate action.
SO ORDERED.
Narvasa (C.J., Chairman), Regalado and Puno, JJ., concur.
Francisco, J., On leave.
Judgment reversed, respondent Ramon R. Villar ordered to deliver
custody of the minor child to petitioner.
Notes.An unrecognized spurious child has no rights from his
parents or to their estate. (Ilano vs. Court of Appeals, 230 SCRA 242
[1994])
The writ of habeas corpus extends to all cases of illegal confinement
by which any person is deprived of his liberty. (Ordoez vs. Vinarao,
239 SCRA 114 [1994])

191

G.R. No. 70890. September 18, 1992.*

CRESENCIO LIBI** and AMELIA YAP LIBI, petitioners, vs. HON.
INTERMEDIATE APPELLATE COURT, FELIPE GOTIONG and
SHIRLEY GOTIONG, respondents.
Civil Law; Damages; Liability of parents for damages caused by their
minor children under Article 2180 of the Civil Code.In imposing
sanctions for the so-called vicarious liability of petitioners, respondent
court cites Fuellas vs. Cadano, et al. which supposedly holds that
(t)he subsidiary liability of parents for damages caused by their
minor children imposed by Article 2180 of the New Civil Code covers
obligations arising from both quasi-delicts and criminal offenses,
followed by an extended quotation ostensibly from the same case
explaining why under Article 2180 of the Civil Code and Article 101 of
the Revised Penal Code parents should assume subsidiary liability for
damages caused by their minor children. The quoted passages are set
out two paragraphs back, with pertinent underscoring for purposes of
the discussion hereunder. Now, we do not have any objection to the
doctrinal rule holding the parents liable, but the categorization of
their liability as being subsidiary, and not primary, in nature requires
a hard second look considering previous decisions of this court on the
matter which warrant comparative analyses. Our concern stems from
our readings that if the liability of the parents for crimes or
quasidelicts of their minor children is subsidiary, then the parents
can neither invoke nor be absolved of civil liability on the defense that
they acted with the diligence of a good father of a family to prevent
damages. On the other hand, if such liability imputed to the parents
is considered direct and primary, that diligence would constitute a
valid and substantial defense. We believe that the civil liability of
parents for quasi-delicts of their minor children, as contemplated in
Article 2180 of the Civil Code, is primary and not subsidiary. In fact, if
we apply Article 2194 of said code which provides for solidary liability
of joint tortfeasors, the persons responsible for the act or omission, in
this case the minor and the father and, in case of his death or
incapacity, the mother, are solidarily liable. Accordingly, such
parental liability is primary and not subsidiary, hence the last
paragraph of Article 2180 provides that (t)he responsibility treated of
in this article shall cease when the persons herein mentioned prove
that they observed all the diligence of a good father of a family to
prevent damage.

Criminal Law; Civil liability of parents for crimes committed by their

minor children.Accordingly, just like the rule in Article 2180 of the
Civil Code, xxx the civil liability of the parents for crimes committed
by their minor children is likewise direct and primary, and also
subject to the defense of lack of fault or negligence on their part, that
is, the exercise of the diligence of a good father of a family. That in
both quasi-delicts and crimes the parents primarily respond for such
damages is buttressed by the corresponding provisions in both codes
that the minor transgressor shall be answerable or shall respond with
his own property only in the absence or in case of insolvency of the
former. Thus, for civil liability ex quasi delicto of minors, Article 2182
of the Civil Code states that (i)f the minor causing damage has no
parents or guardian, the minor x x x shall be answerable with his own
property in an action against him where a guardian ad litem shall be
appointed. For civil liability ex delicto of minors, an equivalent
provision is found in the third paragraph of Article 101 of the Revised
Penal Code, to wit: Should there be no person having such x x x
minor under his authority, legal guardianship or control, or if such
person be insolvent, said x x x minor shall respond with (his) own
property, excepting property exempt from execution, in accordance
with civil law.
PETITION for review of the decision of the then Intermediate Appellate
Court.
The facts are stated in the opinion of the Court.
Alex Y. Tan for petitioners.
Mario D. Ortiz and Danilo V. Ortiz for private respondents.
REGALADO, J.:
One of the ironic verities of life, it has been said, is that sorrow is
sometimes a touchstone of love. A tragic illustration is provided by the
instant case, wherein two lovers died while still in the prime of their
years, a bitter episode for those whose lives they have touched. While
we cannot expect to award complete assuagement to their families
through seemingly prosaic legal verbiage, this disposition should at
least terminate the acrimony and rancor of an extended judicial
contest resulting from the unfortunate occurrence.
In this final denouement of the judicial recourse the stages whereof
were alternately initiated by the parties, petitioners are now before us

192

seeking the reversal of the judgment of respondent court promulgated

on January 2, 1985 in AC-G.R. CV No. 69060 with the following
decretal portion:

contending parties herein, posited their respective theories drawn

from their interpretation of circumstantial evidence, available reports,
documents and evidence of physical facts.

WHEREFORE, the decision of the lower court dismissing plaintiffs

complaint is hereby reversed; and instead, judgment is hereby
rendered sentencing defendants, jointly and solidarily, to pay to
plaintiffs the following amounts:

Private respondents, bereaved over the death of their daughter,

submitted that Wendell caused her death by shooting her with the
aforesaid firearm and, thereafter, turning the gun on himself to
commit suicide. On the other hand, petitioners, puzzled and likewise
distressed over the death of their son, rejected the imputation and
contended that an unknown third party, whom Wendell may have
displeased or antagonized by reason of his work as a narcotics
informer of the Constabulary Anti-Narcotics Unit (CANU), must have
caused Wendells death and then shot Julie Ann to eliminate any
witness and thereby avoid identification.

1. 1. Moral damages, P30,000.00;

2. 2. Exemplary damages, P10,000.00;
3. 3. Attorneys fees, P20,000.00, and costs.
However, denial of defendants-appellees counterclaims is affirmed.1
Synthesized from the findings of the lower courts, it appears that
respondent spouses are the legitimate parents of Julie Ann Gotiong
who, at the time of the deplorable incident which took place and from
which she died on January 14, 1979, was an 18-year old first year
commerce student of the University of San Carlos, Cebu City; while
petitioners are the parents of Wendell Libi, then a minor between 18
and 19 years of age living with his aforesaid parents, and who also
died in the same event on the same date.
For more than two (2) years before their deaths, Julie Ann Gotiong
and Wendell Libi were sweethearts until December, 1978 when Julie
Ann broke up her relationship with Wendell after she supposedly
found him to be sadistic and irresponsible. During the first and
second weeks of January, 1979, Wendell kept pestering Julie Ann
with demands for reconciliation but the latter persisted in her refusal,
prompting the former to resort to threats against her. In order to
avoid him, Julie Ann stayed in the house of her best friend, Malou
Alfonso, at the corner of Maria Cristina and Juana Osmea Streets,
Cebu City, from January 7 to 13, 1978.
On January 14, 1979, Julie Ann and Wendell died, each from a single
gunshot wound inflicted with the same firearm, a Smith and Wesson
revolver licensed in the name of petitioner Cresencio Libi, which was
recovered from the scene of the crime inside the residence of private
respondents at the corner of General Maxilom and D. Jakosalem
streets of the same city.
Due to the absence of an eyewitness account of the circumstances
surrounding the death of both minors, their parents who are the

As a result of the tragedy, the parents of Julie Ann filed Civil Case No.
R-17774 in the then Court of First Instance of Cebu against the
parents of Wendell to recover damages arising from the latters
vicarious liability under Article 2180 of the Civil Code. After trial, the
court below rendered judgment on October 20, 1980 as follows:
WHEREFORE, premises duly considered, judgment is hereby
rendered dismissing plaintiffs complaint for insufficiency of the
evidence. Defendants counterclaim is likewise denied for lack of
sufficient merit.2
On appeal to respondent court, said judgment of the lower court
dismissing the complaint of therein plaintiffs-appellants was set aside
and another judgment was rendered against defendants-appellees
who, as petitioners in the present appeal by certiorari, now submit for
resolution the following issues in this case:
1. 1. Whether or not respondent court correctly reversed the trial
court in accordance with established decisional laws; and
2. 2. Whether or not Article 2180 of the Civil Code was correctly
interpreted by respondent court to make petitioners liable for
vicarious liability.3
In the proceedings before the trial court, Dr. Jesus P. Cerna, Police
Medico-Legal Officer of Cebu, submitted his findings and opinions on
some postulates for determining whether or not the gunshot wound
was inflicted on Wendell Libi by his own suicidal act. However, undue
emphasis was placed by the lower court on the absence of gunpowder
or tattooing around the wound at the point of entry of the bullet. It

193

should be emphasized, however, that this is not the only

circumstance to be taken into account in the determination of
whether it was suicide or not.
It is true that said witness declared that he found no evidence of
contact or close-contact of an explosive discharge in the entrance
wound. However, as pointed out by private respondents, the body of
deceased Wendell Libi must have been washed at the funeral parlor,
considering the hasty interment thereof a little after eight (8) hours
from the occurrence wherein he died. Dr. Cerna himself could not
categorically state that the body of Wendell Libi was left untouched at
the funeral parlor before he was able to conduct his autopsy. It will
also be noted that Dr. Cerna was negligent in not conducting a
paraffin test on Wendell Libi, hence possible evidence of gunpowder
residue on Wendells hands was forever lost when Wendell was hastily
buried.
More specifically, Dr. Cerna testified that he conducted an autopsy on
the body of Wendell Libi about eight (8) hours after the incident or, to
be exact, eight (8) hours and twenty (20) minutes based on the record
of death; that when he arrived at the Cosmopolitan Funeral Homes,
the body of the deceased was already on the autopsy table and in the
stage of rigor mortis; and that said body was not washed, but it was
dried.4 However, on redirect examination, he admitted that during the
8-hour interval, he never saw the body nor did he see whether said
body was wiped or washed in the area of the wound on the head
which he examined because the deceased was inside the morgue. 5 In
fact, on cross-examination, he had earlier admitted that as far as the
entrance of the wound, the trajectory of the bullet and the exit of the
wound are concerned, it is possible that Wendell Libi shot himself. 6
He further testified that the muzzle of the gun was not pressed on the
head of the victim and that he found no burning or singeing of the
hair or extensive laceration on the gunshot wound of entrance which
are general characteristics of contact or near-contact fire. On direct
examination, Dr. Cerna nonetheless made these clarification:
Q Is it not a fact that there are certain guns which are so made that
there would be no black residue or tattooing that could result from
these guns because they are what we call clean?
A Yes, sir. I know that there are what we call smokeless powder.
ATTY. ORTIZ:
Q Yes. So, in cases, therefore, of guns where the powder is
smokeless, those indications that you said may not rule out the

possibility that the gun was closer than 24 inches, is that correct?
A If the . . . assuming that the gun used was . . . the bullet used was
a smokeless powder.
Q At any rate, doctor, from . . . disregarding those other matters that
you have noticed, the singeing, etc., from the trajectory, based on
the trajectory of the bullet as shown in your own sketch, is it not a
fact that the gun could have been fired by the person himself, the
victim himself, Wen- dell Libi, because it shows a point of entry a
little above the right ear and point of exit a little above that, to be
very fair and on your oath?
A As far as the point of entrance is concerned and as far as the
trajectory of the bullet is concerned and as far as the angle or the
manner of fire is concerned, it could have been fired by the
victim.7
As shown by the evidence, there were only two used bullets 8 found at
the scene of the crime, each of which were the bullets that hit Julie
Ann Gotiong and Wendell Libi, respectively. Also, the sketch prepared
by the Medico-Legal Division of the National Bureau of Investigation, 9
shows that there is only one gunshot wound of entrance located at the
right temple of Wendell Libi. The necropsy report prepared by Dr.
Cerna states:
xxx
Gunshot wound, ENTRANCE, ovaloid, 0.5 x 0.4 cm., with con-tusion
collar widest inferiorly by 0.2 cm., edges inverted, oriented upward,
located at the head, temporal region, right, 2.8 cms. behind and 5.5
cms. above right external auditory meatus, directed slightly forward,
upward and to the left, involving skin and soft tissues, making a
punch-in fracture on the temporal bone, right, penetrating cranial
cavity, lacerating extensively along its course the brain tissues,
fracturing parietal bone, left, and finally making an EXIT wound,
irregular, 2.0 x 1.8 cms., edges (e)verted, parietal region, left, 2.0 cms.
behind and 12.9 cms. above left external auditory meatus.
xxx
Evidence of contact or close-contact fire, such as burning around the
gunshot wound of entrance, gunpowder tatooing (sic), smudging,
singeing of hair, extensive laceration or bursting of the gunshot
wound of entrance, or separation of the skin from the underlying
tissue, are absent.10

194

On cross-examination, Dr. Cerna demonstrated his theory which was

made of record, thus:
Q Now, will you please use yourself as Wendell Libi, and following the
entrance of the wound, the trajectory of the bullet and the exit of
the wound, and measuring yourself 24 inches, will you please
indicate to the Honorable Court how would it have been possible
for Wendell Libi to kill himself? Will you please indicate the 24
inches?
WITNESS:
A Actually, sir, the 24 inches is approximately one arms length.
ATTY. SENINING:
I would like to make of record that the witness has demon
strated by extending his right arm almost straight towards his
head.11
Private respondents assail the fact that the trial court gave credence
to the testimonies of defendants witnesses Lydia Ang and James
Enrique Tan, the first being a resident of an apartment across the
street from the Gotiongs and the second, a resident of the house
adjacent to the Gotiong residence, who declared having seen a
shadow of a person at the gate of the Gotiong house after hearing
shots therefrom.
On cross-examination, Lydia Ang testified that the apartment where
she was staying faces the gas station; that it is the second apartment;
that from her window she can see directly the gate of the Gotiongs;
and, that there is a firewall between her apartment and the gas
station.12 After seeing a man jump from the gate of the Gotiongs to the
rooftop of the Tans, she called the police station but the telephone
lines were busy. Later on, she talked with James Enrique Tan and
told him that she saw a man leap from the gate towards his rooftop. 13
However, James Enrique Tan testified that he saw a shadow on top
of the gate of the Gotiongs, but denied having talked with anyone
regarding what he saw. He explained that he lives in a duplex house
with a garden in front of it; that his house is next to Felipe Gotiongs
house; and he further gave the following answers to these questions:
ATTY. ORTIZ: (TO WITNESS).
Q What is the height of the wall of the Gotiongs in relation to your

house?
WITNESS:
A It is about 8 feet.
ATTY. ORTIZ: (TO WITNESS)
Q And where were you looking from?
WITNESS:
A From upstairs in my living room.
ATTY. ORTIZ (TO WITNESS)
Q From your living room window, is that correct?
WITNESS:
A Yes, but not very clear because the wall is high.14
Analyzing the foregoing testimonies, we agree with respondent court
that the same do not inspire credence as to the reliability and
accuracy of the witnesses observations, since the visual perceptions
of both were obstructed by high walls in their respective houses in
relation to the house of herein private respondents. On the other
hand, witness Manolo Alfonso, testifying on rebuttal, attested without
contradiction that he and his sister, Malou Alfonso, were waiting for
Julie Ann Gotiong when they heard her scream; that when Manolo
climbed the fence to see what was going on inside the Gotiong house,
he heard the first shot; and, not more than five (5) seconds later, he
heard another shot. Consequently, he went down from the fence and
drove to the police station to report the incident. 15 Manolos direct and
candid testimony establishes and explains the fact that it was he
whom Lydia Ang and James Enrique Tan saw as the shadow of a
man at the gate of the Gotiong house.
We have perforce to reject petitioners effete and unsubstantiated
pretension that it was another man who shot Wendell and Julie Ann.
It is significant that the Libi family did not even point to or present
any suspect in the crime nor did they file any case against any alleged
John Doe. Nor can we sustain the trial courts dubious theory that
Wendell Libi did not die by his own hand because of the overwhelming
evidencetestimonial, documentary and pictorialthe confluence of
which point to Wendell as the assailant of Julie Ann, his motive being
revenge for her rejection of his persistent pleas for a reconciliation.
Petitioners defense that they had exercised the due diligence of a
good father of a family, hence they should not be civilly liable for the
crime committed by their minor son, is not borne out by the evidence
on record either.

195

Petitioner Amelita Yap Libi, mother of Wendell, testified that her

husband, Cresencio Libi, owns a gun which he kept in a safety
deposit box inside a drawer in their bedroom. Each of these
petitioners holds a key to the safety deposit box and Amelitas key is
always in her bag, all of which facts were known to Wendell. They
have never seen their son Wendell taking or using the gun. She
admitted, however, that on that fateful night the gun was no longer in
the safety deposit box.16 We, accordingly, cannot but entertain serious
doubts that petitioner spouses had really been exercising the diligence
of a good father of a family by safely locking the fatal gun away.
Wendell could not have gotten hold thereof unless one of the keys to
the safety deposit box was negligently left lying around or he had free
access to the bag of his mother where the other key was.
The diligence of a good father of a family required by law in a parent
and child relationship consists, to a large extent, of the instruction
and supervision of the child. Petitioners were gravely remiss in their
duties as parents in not diligently supervising the activities of their
son, despite his minority and immaturity, so much so that it was only
at the time of Wendells death that they allegedly discovered that he
was a CANU agent and that Cresencios gun was missing from the
safety deposit box. Both parents were sadly wanting in their duty and
responsibility in monitoring and knowing the activities of their
children who, for all they know, may be engaged in dangerous work
such as being drug informers,17 or even drug users. Neither was a
plausible explanation given for the photograph of Wendell, with a
handwritten dedication to Julie Ann at the back thereof, 18 holding
upright what clearly appears as a revolver and on how or why he was
in possession of that firearm.
In setting aside
petitioners civilly
respondent court
part of petitioners

the judgment of the court a quo and holding

liable, as explained at the start of this opinion,
waved aside the protestations of diligence on the
and had this to say:

x x x It is still the duty of parents to know the activity of their

children who may be engaged in this dangerous activity involving the
menace of drugs. Had the defendants-appellees been diligent in
supervising the activities of their son, Wendell, and in keeping said
gun from his reach, they could have prevented Wendell from killing
Julie Ann Gotiong. Therefore, appellants are liable under Article 2180
of the Civil Code which provides:

The father, and in case of his death or incapacity, the mother, are
responsible for the damages caused by their minor children who live
in their company.
Having been grossly negligent in preventing Wendell Libi from having
access to said gun which was allegedly kept in a safety deposit box,
defendants-appellees are subsidiarily liable for the natural
consequence of the criminal act of said minor who was living in their
company. This vicarious liability of herein defendants-appellees has
been reiterated by the Supreme Court in many cases, prominent of
which is the case of Fuellas vs. Cadano, et. al. (L-14409, Oct. 31,
1961, 3 SCRA 361-367), which held that:
The subsidiary liability of parents for damages caused by their minor
children imposed by Article 2180 of the New Civil Code covers
obligations arising from both quasi-delicts and criminal offenses.
The subsidiary liability of parents arising from the criminal acts of
their minor children who acted with discernment is determined under
the provisions of Article 2180, N.C.C. and under Article 101 of the
Revised Penal Code, because to hold that the former only covers
obligations which arise from quasidelicts and not obligations which
arise from criminal offenses, would result in the absurdity that while
for an act where mere negligence intervenes the father or mother may
stand subsidiarily liable for the damages caused by his or her son, no
liability would attach if the damage is caused with criminal intent. (3
SCRA 361-362).
x x x In the instant case, minor son of herein defendantsappellees,
Wendell Libi somehow got hold of the key to the drawer where said
gun was kept under lock without defendant-spouses ever knowing
that said gun had been missing from that safety box since 1978 when
Wendell Libi ha(d) a picture taken wherein he proudly displayed said
gun and dedicated this picture to his sweetheart, Julie Ann Gotiong;
also since then, Wendell Libi was said to have kept said gun in his
car, in keeping up with his supposed role of a CANU agent. x x x.
xxx
Based on the foregoing discussions of the assigned errors, this Court
holds that the lower court was not correct in dismissing herein
plaintiffs-appellants complaint because as preponderantly shown by
evidence, defendants-appellees utterly failed to exercise all the
diligence of a good father of the family in preventing their minor son

196

from committing this crime by means of the gun of defendantsappellees which was freely accessible to Wendell Libi for they have not
regularly checked whether said gun was still under lock, but learned
that it was missing from the safety deposit box only after the crime
had been committed. (Emphases ours.) 19
We agree with the conclusion of respondent court that petitioners
should be held liable for the civil liability based on what appears from
all indications was a crime committed by their minor son. We take
this opportunity however, to digress and discuss its ratiocination
therefor on jurisprudential dicta which we feel require clarification.
In imposing sanctions for the so-called vicarious liability of
petitioners, respondent court cites Fuellas vs. Cadano, et al.20 which
supposedly holds that (t)he subsidiary liability of parents for
damages caused by their minor children imposed by Article 2180 of
the New Civil Code covers obligations arising from both quasi-delicts
and criminal offenses, followed by an extended quotation ostensibly
from the same case explaining why under Article 2180 of the Civil
Code and Article 101 of the Revised Penal Code parents should
assume subsidiary liability for damages caused by their minor
children. The quoted passages are set out two paragraphs back, with
pertinent underscoring for purposes of the discussion hereunder.
Now, we do not have any objection to the doctrinal rule holding, the
parents liable, but the categorization of their liability as being
subsidiary, and not primary, in nature requires a hard second look
considering previous decisions of this court on the matter which
warrant comparative analyses. Our concern stems from our readings
that if the liability of the parents for crimes or quasi-delicts of their
minor children is subsidiary, then the parents can neither invoke nor
be absolved of civil liability on the defense that they acted with the
diligence of a good father of a family to prevent damages. On the other
hand, if such liability imputed to the parents is considered direct and
primary, that diligence would constitute a valid and substantial
defense.
We believe that the civil liability of parents for quasi-delicts of their
minor children, as contemplated in Article 2180 of the Civil Code, is
primary and not subsidiary. In fact, if we apply Article 2194 of said
code which provides for solidary liability of joint tortfeasors, the
persons responsible for the act or omission, in this case the minor
and the father and, in case of his death or incapacity, the mother, are
solidarily liable. Accordingly, such parental liability is primary and
not subsidiary, hence the last paragraph of Article 2180 provides that

(t)he responsibility treated of in this article shall cease when the

persons herein mentioned prove that they observed all the diligence of
a good father of a family to prevent damage.
We are also persuaded that the liability of the parents for felonies
committed by their minor children is likewise primary, not subsidiary.
Article 101 of the Revised Penal Code provides:
Art 101. Rules regarding civil liability in certain cases.
xxx
First. In cases of subdivisions x x x 2, and 3 of Article 12, the civil
liability for acts committed by x x x a person under nine years of age,
or by one over nine but under fifteen years of age, who has acted
without discernment, shall devolve upon those having such person
under their legal authority or control, unless it appears that there was
no fault or negligence on their part. (Emphases supplied.)21
Accordingly, just like the rule in Article 2180 of the Civil Code, under
the foregoing provision the civil liability of the parents for crimes
committed by their minor children is likewise direct and primary, and
also subject to the defense of lack of fault or negligence on their part,
that is, the exercise of the diligence of a good father of a family.
That in both quasi-delicts and crimes the parents primarily respond
for such damages is buttressed by the corresponding provisions in
both codes that the minor transgressor shall be answerable or shall
respond with his own property only in the absence or in case of
insolvency of the former. Thus, for civil liability ex quasi delicto of
minors, Article 2182 of the Civil Code states that (i)f the minor
causing damage has no parents or guardian, the minor x x x shall be
answerable with his own property in an action against him where a
guardian ad litem shall be appointed. For civil liability ex delicto of
minors, an equivalent provision is found in the third paragraph of
Article 101 of the Revised Penal Code, to wit:
Should there be no person having such
authority, legal guardianship or control,
insolvent, said x x x minor shall respond
excepting property exempt from execution,
law.

x x x minor under his

or if such person be
with (his) own property,
in accordance with civil

197

The civil liability of parents for felonies committed by their minor

children contemplated in the aforesaid rule in Article 101 of the
Revised Penal Code in relation to Article 2180 of the Civil Code has,
aside from the aforesaid case of Fuellas, been the subject of a number
of cases adjudicated by this Court, viz.: Exconde vs. Capuno, et al.,22
Araneta vs. Arreglado,23 Salen, et al. vs. Balce,24 Paleyan, etc., et al. vs.
Bangkili, et al.,25 and Elcano, et al, vs. Hill, et al.26 Parenthetically, the
aforesaid cases were basically on the issue of the civil liability of
parents for crimes committed by their minor children over 9 but
under 15 years of age, who acted with discernment, and also of
minors 15 years of age or over, since these situations are not covered
by Article 101, Revised Penal Code. In both instances, this Court held
that the issue of parental civil liability should be resolved in
accordance with the provisions of Article 2180 of the Civil Code for the
reasons well expressed in Salen and adopted in the cases hereinbefore
enumerated that to hold that the civil liability under Article 2180
would apply only to quasi-delicts and not to criminal offenses would
result in the absurdity that in an act involving mere negligence the
parents would be liable but not where the damage is caused with
criminal intent. In said cases, however, there are unfortunate
variances resulting in a regrettable inconsistency in the Courts
determination of whether the liability of the parents, in cases
involving either crimes or quasidelicts of their minor children, is
primary or subsidiary.
In Exconde, where the 15-year old minor was convicted of double
homicide through reckless imprudence, in a separate civil action
arising from the crime the minor and his father were held jointly and
severally liable for failure of the latter to prove the diligence of a good
father of a family. The same liability in solidum and, therefore,
primary liability was imposed in a separate civil action in Araneta on
the parents and their 14-year old son who was found guilty of
frustrated homicide, but on the authority of Article 2194 of the Civil
Code providing for solidary responsibility of two or more persons who
are liable for a quasi-delict.
However, in Salen, the father was declared subsidiarily liable for
damages arising from the conviction of his son, who was over 15 but
less than 18 years of age, by applying Article 2180 but, this time,
disregarding Article 2194 of the Civil Code. In the present case, as
already explained, the petitioners herein were also held liable but
supposedly in line with Fuellas which purportedly declared the
parents subsidiarily liable for the civil liability for serious physical
injuries committed by their 13-year old son. On the other hand, in
Paleyan, the mother and her 19-year old son were adjudged solidarily

liable for damages arising from his conviction for homicide by the
application of Article 2180 of the Civil Code since this is likewise not
covered by Article 101 of the Revised Penal Code. Finally, in Elcano,
although the son was acquitted in a homicide charge due to lack of
intent, coupled with mistake, it was ruled that while under Article
2180 of the Civil Code there should be solidary liability for damages,
since the son, although married, was living with his father and
getting subsistence from him at the time of the occurrence, but is
now of age, as a matter of equity the father was only held subsidiarily
liable.
It bears stressing, however, that the Revised Penal Code provides for
subsidiary liability only for persons causing damages under the
compulsion of irresistible force or under the impulse of an
uncontrollable fear;27 innkeepers, tavernkeepers and proprietors of
establishments;28 employers, teachers, persons and corporations
engaged in industry;29 and principals, accomplices and accessories for
the unpaid civil liability of their co-accused in the other classes.30
Also, coming back to respondent courts reliance on Fuellas in its
decision in the present case, it is not exactly accurate to say that
Fuellas provided for subsidiary liability of the parents therein. A
careful scrutiny shows that what respondent court quoted verbatim in
its decision now on appeal in the present case, and which it attributed
to Fuellas, was the syllabus on the law report of said case which
spoke of subsidiary liability. However, such categorization does not
specifically appear in the text of the decision in Fuellas. In fact, after
reviewing therein the cases of Exconde, Araneta and Salen and the
discussions in said cases of Article 101 of the Revised Penal Code in
relation to Article 2180 of the Civil Code, this Court concluded its
decision in this wise:
Moreover, the case at bar was decided by the Court of Appeals on the
basis of evidence submitted therein by both parties, independent of
the criminal case. And responsibility for fault or negligence under
Article 2176 upon which the present action was instituted, is entirely
separate and distinct from the civil liability arising from fault or
negligence under the Penal Code (Art. 2177), and having in mind the
reasons behind the law as heretofore stated, any discussion as to the
minors criminal responsibility is of no moment.
Under the foregoing considerations, therefore, we hereby rule that the
parents are and should be held primarily liable for the civil liability
arising from criminal offenses committed by their minor children
under their legal authority or control, or who live in their company,

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unless it is proven that the former acted with the diligence of a good
father of a family to prevent such damages. That primary liability is
premised on the provisions of Article 101 of the Revised Penal Code
with respect to damages ex delicto caused by their children 9 years of
age or under, or over 9 but under 15 years of age who acted without
discernment; and, with regard to their children over 9 but under 15
years of age who acted with discernment, or 15 years or over but
under 21 years of age, such primary liability shall be imposed
pursuant to Article 2180 of the Civil Code.31
Under said Article 2180, the enforcement of such liability shall be
effected against the father and, in case of his death or incapacity, the
mother. This was amplified by the Child and Youth Welfare Code
which provides that the same shall devolve upon the father and, in
case of his death or incapacity, upon the mother or, in case of her
death or incapacity, upon the guardian, but the liability may also be
voluntarily assumed by a relative or family friend of the youthful
offender.32 However, under the Family Code, this civil liability is now,
without such alternative qualification, the responsibility of the
parents and those who exercise parental authority over the minor
offender.33

Feliciano, J., On leave.

Davide, Jr., J., No part. I used to be counsel of one of the parties.
Melo and Campos, Jr., JJ., No part.
Petition denied; judgment affirmed.
Note.Employers liability in quasi-delict is primary and solidary and
the award of temperate, moral and exemplary damages as well as
attorneys fees lies upon the discretion of the court (Pleno vs. Court of
Appeals, 161 SCRA 208).

For civil liability arising from quasi-delicts committed by minors, the

same rules shall apply in accordance with Articles 2180 and 2182 of
the Civil Code, as so modified.
In the case at bar, whether the death of the hapless Julie Ann Gotiong
was caused by a felony or a quasi-delict committed by Wendell Libi,
respondent court did not err in holding petitioners liable for damages
arising therefrom. Subject to the preceding modifications of the
premises relied upon by it therefor and on the bases of the legal
imperatives herein explained, we conjoin in its findings that said
petitioners failed to duly exercise the requisite diligentissimi patris
familias to prevent such damages.
ACCORDINGLY, the instant petition is DENIED and the assailed
judgment of respondent Court of Appeals is hereby AFFIRMED, with
costs against petitioners.
SO ORDERED.
Narvasa (C.J.), Gutierrez, Jr., Cruz, Padilla, Bidin, GrioAquino,
Medialdea, Romero, Nocon and Bellosillo, JJ., concur.

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G.R. No. 115640. March 15, 1995.*

REYNALDO ESPIRITU and GUILLERMA LAYUG, petitioners, vs.
COURT OF APPEALS, and TERESITA MASAUDING, respondents.
Civil Law; Parent and Child; Custody and Care of Children; Whether a
child is under or over seven years of age, the paramount criterion must
always be the childs interest.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
childs 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.
Same; Same; Same; In ascertaining the welfare and best interests of
the child, courts are mandated by the Family Code to take into account
all relevant considerations.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.
Same; Same; Same; 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.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.
Evidence; Expert Witnesses; Testimony of expert witnesses 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 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.
Abubakar, et al. (17 SCRA 988 [1966]).
PETITION for review of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Ponce Enrile, Cayetano, Reyes & Manalastas for petitioners.
Abesamis,
respondent.

Medialdea

&

Abesamis

Law

Offices

for

private

MELO, J.:
This case concerns a seemingly void marriage and a relationship
which went sour. The innocent victims are two children born 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

200

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 breakup, 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 had 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. 210222, 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 Teresitas 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
courts 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 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.
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

201

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 childs 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 countrys
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 latters 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 seven-year age limit was
mechanically treated as an arbitrary cut off period and not a guide
based on a strong presumption.
A scrutiny of the pleadings in this case indicates that Teresita, or at
least, her counsel are more intent on emphasizing the torture and
agony of a mother separated from her children and the humiliation
she suffered as a result of her character being made a key issue in
court rather than the feelings and future, the best interests and
welfare of her children. While the bonds between a mother and her
small child are special in nature, either parent, whether father or
mother, is bound to suffer agony and pain if deprived of custody. One
cannot say that his or her suffering is greater than that of the other
parent. It is not so much the suffering, pride, and other feelings of
either parent but the welfare of the child which is the paramount
consideration.
We are inclined to sustain the findings and conclusions of the regional
trial court because it gave greater attention to the choice of Rosalind
and considered in detail all the relevant factors bearing on the issue of
custody.

202

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 childs
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 aunts 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 mothers 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 a 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 fathers 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 ebullient 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

203

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. Abubakar, 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.

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 on 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 minors 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.

(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.)

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. 1. Her morality is questionable as shown by her marrying
Reynaldo at the time she had a subsisting marriage with
another man.
2. 2. She is guilty of grave indiscretion in carrying on a love affair
with one of Reynaldos fellow NSC employees.
3. 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.

204

4. 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 nonexistent and have not been proved by clear and convincing evidence.
Public and private respondent 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.

privacy. Confiding to ones 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 Reynaldos 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 latters 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 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,
Respondents 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,

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).

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 Teresitas values. Rape is an insidious crime against

Respondent courts 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

205

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.
Feliciano (Chairman), Romero, Vitug and Francisco, JJ., concur.
Petition granted.

206

G.R. No. 113054. March 16, 1995.*

LEOUEL SANTOS, SR., petitioner-appellant, vs. COURT OF
APPEALS, and SPOUSES LEOPOLDO and OFELIA BEDIA,
respondents-appellees.
Civil Law; Family Code; Parent and Child; The right of custody
accorded to parents springs from the exercise of parental authority.
The right of custody accorded to parents springs from the exercise of
parental authority. Parental authority or patria potestas in Roman
Law is the juridical institution whereby parents rightfully assume
control and protection of their unemancipated children to the extent
required by the latters needs. It is a mass of rights and obligations
which the law grants to parents for the purpose of the childrens
physical preservation and development, as well as the cultivation of
their intellect and the education of their heart and senses. 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.
Same; Same; Same; Parental authority and responsibility are
inalienable and may not be transferred or renounced except in cases
authorized by law.Parental authority and responsibility are
inalienable and may not be transferred or renounced except in cases
authorized by law. The right attached to parental authority, being
purely personal, the law allows a waiver of parental authority only in
cases of adoption, guardianship and surrender to a childrens home
or an orphan institution. 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. Even if a definite renunciation is
manifest, the law still disallows the same.
Same; Same; Same; The father and mother, being the natural
guardians of unemancipated children, are duty-bound and entitled to
keep them in their custody and company.The father and mother,
being the natural guardians of unemancipated children, are dutybound and entitled to keep them in their custody and company. The
childs welfare is always the paramount consideration in all questions
concerning his care and custody.

Same; Same; Same; Only in case of the parents death, absence or

unsuitability may substitute parental authority be exercised by the
surviving grandparent.The law vests on the father and mother joint
parental authority over the persons of their common children. In case
of absence or death of either parent, the parent present shall continue
exercising parental authority. Only in case of the parents death,
absence or unsuitability may substitute parental authority be
exercised by the surviving grandparent.
Same; Same; Same; Private respondents demonstrated love and
affection for the boy, notwithstanding, the legitimate father is still
preferred over the grandparents.We find the aforementioned
considerations insufficient to defeat petitioners 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. The latters 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 childs custody. While petitioners previous
inattention is inexcusable and merits only the severest criticism, it
cannot be construed as abandonment.
PETITION for review of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Elam Law Offices for petitioner.
Manuel S. Gemarino for private respondents.
ROMERO, J.:
In this petition for review, we are asked to overturn the decision of the
Court of Appeals1 granting custody of six-year old Leouel Santos, Jr.
to his maternal grandparents and not to his father, Santos, Sr. What
is sought is a decision which should definitively settle the matter of
the care, custody and control of the boy.

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Happily, unlike King Solomon, we need not merely rely on a wise and
understanding heart, for there is mans 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
begot 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 latters 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 boys mother, Julia-Bedia-Santos, left for the United States in
May 1988 to work. Petitioner alleged that he is not aware of her
whereabouts and his efforts to locate her in the United States proved
futile. Private respondents claim that although abroad, their daughter
Julia had been sending financial support to them for her son.
On September 2, 1990, petitioner along with his two brothers, visited
the Bedia household, where three-year old Leouel, Jr. was staying.
Private respondents contend that through deceit and false
pretensions, petitioner abducted the boy and clandestinely spirited
him away to his hometown in Bacong, Negros Oriental.
The spouses Bedia then filed a Petition for Care, Custody and Control
of Minor Ward Leouel Santos, Jr., before the Regional Trial Court of
Iloilo City, with Santos, Sr. as respondent. 2
After an ex-parte hearing on October 8, 1990, the trial court issued an
order on the same day awarding custody of the child Leouel Santos,
Jr. to his grandparents, Leopoldo and Ofelia Bedia. 3
Petitioner appealed this Order to the Court of Appeals. 4 In its decision
dated April 30, 1992, respondent appellate court affirmed the trial
courts order.5 His motion for reconsideration having been denied,6

petitioner now brings the instant petition for review for a reversal of
the appellate courts 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 boys 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 boys 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, petitioners
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 childs 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 childs welfare.
The issue to be resolved here boils down to who should properly be
awarded custody of the minor Leouel Santos, Jr.
The right of custody accorded to parents springs from the exercise of
parental authority. Parental authority or patria potestas in Roman
Law is the juridical institution whereby parents rightfully assume
control and protection of their unemancipated children to the extent
required by the latters needs.7 It is a mass of rights and obligations
which the law grants to parents for the purpose of the childrens

208

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 childrens 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 childs welfare is always the paramount
consideration in all questions concerning his care and custody.15
The law vests on the father and mother joint parental authority over
the persons of their common children.16 In case of absence or death of
either parent, the parent present shall continue exercising parental
authority.17 Only in case of the parents death, absence or
unsuitability may substitute parental authority be exercised by the
surviving grandparent.18 The situation obtaining in the case at bench
is one where the mother of the minor Santos, Jr., is working in the
United States while the father, petitioner Santos, Sr., is present. Not
only are they physically apart but are also emotionally separated.
There has been no decree of legal separation and petitioners 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-inlaw, 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.
Petitioners 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 courts order of
October 8, 1990, adopted as its own the latters 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
petitioners 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 latters 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 childs custody. While petitioners previous
inattention is inexcusable and merits only the severest criticism, it
cannot be construed as abandonment. His appeal of the unfavorable

209

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.

Note.The Supreme Court gives effect to the policy of the Civil Code
and the Family Code to liberalize the rule on the investigation of the
paternity of illegitimate children. (Mendoza vs. Court of Appeals, 201
SCRA 675 [1991])

His being a soldier is likewise no bar to allowing him custody over the
body. 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.
Petitioners 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
petitioners right to custody over the child as a father. Moreover, who
is to say whether the petitioners 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.
Feliciano (Chairman), Melo, Vitug and Francisco, JJ., concur.
Petition granted.

210

habitual drunkenness, drug addiction, maltreatment of the child,

insanity and being sick with a communicable disease.
G.R. No. 118870. March 29, 1996.*
NERISSA Z. PEREZ, petitioner, vs. THE COURT OF APPEALS
(Ninth Division) and RAY C. PEREZ, respondents.
Civil Law; Family Code; Couples who are separated in fact, such as
petitioner and private respondent, are covered within the term
separation.Since the Code does not qualify the word separation to
mean legal separation decreed by a court, couples who are
separated in fact, such as petitioner and private respondent, are
covered within its terms.
Same; Same; The use of the word shall in Article 213 of the Family
Code and Rule 99, Section 6 of the Revised Rules of Court connotes a
mandatory character.The provisions of law quoted above clearly
mandate that a child under seven years of age shall not be separated
from his mother unless the court finds compelling reasons to order
otherwise. The use of the word shall in Article 213 of the Family
Code and Rule 99, Section 6 of the Revised Rules of Court connotes a
mandatory character.
Same; Same; Article 17, paragraph three of the Child and Youth
Welfare Code (P.D. 603) reducing the childs age to five years has been
repealed by the Family Code.The Family Code, in reverting to the
provision of the Civil Code that a child below seven years old should
not be separated from the mother (Article 363), has expressly repealed
the earlier Article 17, paragraph three of the Child and Youth Welfare
Code (Presidential Decree No. 603) which reduced the childs age to
five years.
Same; Same; The general rule that a child under seven years of age
shall not be separated from his mother finds its raison detre in the
basic need of a child for his mothers loving care.The general rule
that a child under seven years of age shall not be separated from his
mother finds its raison detre in the basic need of a child for his
mothers loving care. Only the most compelling of reasons shall justify
the courts awarding the custody of such a child to someone other
than his mother, such as her unfitness to exercise sole parental
authority. In the past the following grounds have been considered
ample justification to deprive a mother of custody and parental
authority: neglect, abandonment, unemployment and immorality,

Same; Same; It has long been settled that in custody cases, the
foremost consideration is always the welfare and best interest of the
child.It has long been settled that in custody cases, the foremost
consideration is always the welfare and best interest of the child. In
fact, no less than an international instrument, the Convention on the
Rights of the Child provides: 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.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Bausa, Ampil, Suarez, Paredes & Bausa for petitioner.
Gica, Del Socorro and Espinoza for private respondent.
ROMERO, J.:
Parties herein would have this Court duplicate the feat of King
Solomon who was hailed in Biblical times for his sagacious, if, at
times unorthodox, manner of resolving conflicts, the most celebrated
case being that when his authority was invoked to determine the
identity of the real mother as between two women claiming the same
infant. Since there could only be one mother, the daunting task that
confronted the king/judge was to choose the true one.
In the instant case, we are faced with the challenge of deciding, as
between father and mother, who should have rightful custody of a
child who bears in his person both their genes.
While there is a provision of law squarely in point, the two courts
whose authority have been invoked to render a decision have arrived
at diametrically opposite conclusions.
It has fallen upon us now to likewise act as judge between the trial
court, on the one hand, and the appellate, on the other.

211

On the issue of custody over the minor Ray Perez II, respondent Court
of Appeals ruled in favor of the boys father Ray C. Perez, reversing the
trial courts decision to grant custody to Nerissa Z. Perez, the childs
mother.
Ray Perez, private respondent, is a doctor of medicine practicing in
Cebu while Nerissa, his wife who is petitioner herein, is a registered
nurse. They were married in Cebu on December 6, 1986. After six
miscarriages, two operations and a high-risk pregnancy, petitioner
finally gave birth to Ray Perez II in New York on July 20, 1992.
Petitioner who began working in the United States in October 1988,
used part of her earnings to build a modest house in Mandaue City,
Cebu. She also sought medical attention for her successive
miscarriages in New York. She became a resident alien in February
1992.
Private respondent stayed with her in the U.S. twice and took care of
her when she became pregnant. Unlike his wife, however, he had only
a tourist visa and was not employed.
On January 17, 1993, the couple and their baby arrived in Cebu.
After a few weeks, only Nerissa returned to the U.S. She alleged that
they came home only for a five-week vacation and that they all had
round-trip tickets. However, her husband stayed behind to take care
of his sick mother and promised to follow her with the baby.
According to Ray, they had agreed to reside permanently in the
Philippines but once Nerissa was in New York, she changed her mind
and continued working. She was supposed to come back immediately
after winding up her affairs there.
When Nerissa came home a few days before Ray IIs first birthday, the
couple was no longer on good terms. That their love for each other
was fading became apparent from their serious quarrels. Petitioner
did not want to live near her in-laws and rely solely on her husbands
meager income of P5,000.00.1 She longed to be with her only child but
he was being kept away from her by her husband. Thus, she did not
want to leave RJ (Ray Junior) with her husband and in-laws. She
wished for her son to grow up with his mother.
On the other hand, Ray wanted to stay here, where he could raise his
son even as he practiced his profession. He maintained that it would
not be difficult to live here since they have their own home and a car.

They could live comfortably on his P15,000.00 monthly income2 as

they were not burdened with having to pay any debts.
Petitioner was forced to move to her parents home on Guizo Street in
Mandaue. Despite mediation by the priest who solemnized their
marriage, the couple failed to reconcile.
On July 26, 1993, Nerissa Z. Perez filed a petition for habeas corpus 3
asking respondent Ray C. Perez to surrender the custody of their son,
Ray Z. Perez II, to her.
On August 27, 1993, the court a quo issued an Order awarding
custody of the one-year old child to his mother, Nerissa Perez, citing
the second paragraph of Article 213 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. The dispositive portion of the Order reads:
WHEREFORE, foregoing premises considered, Order is hereby issued
ordering the respondent to turn over the custody of their child Ray
Cortes Perez II, his passport and roundtrip ticket to herein petitioner
with a warning that if he will escape together with the child for the
purpose of hiding the minor child instead of complying with this
Order, that warrant for his arrest will be issued.
SO ORDERED.4
Upon appeal by Ray Perez, the Court of Appeals, on September 27,
1994, reversed the trial courts order and awarded custody of the boy
to his father.5
Petitioners motion for reconsideration having been denied, 6 she filed
the instant petition for review where the sole issue is the custody of
Ray Perez II, now three years old.
Respondent court differed in opinion from the trial court and ruled
that there were enough reasons to deny Nerissa Perez custody over
Ray II even if the child is under seven years old. It held that granting
custody to the boys father would be for the childs best interest and
welfare.7
Before us is the unedifying situation of a husband and wife in marital
discord, struggling for custody of their only child. It is sad that
petitioner and private respondent have not found it in their hearts to

212

understand each other and live together once again as a family.

Separated in fact, they now seek the Courts assistance in the matter
of custody or parental authority over the child.
The wisdom and necessity for the exercise of joint parental authority
need not be belabored. The father and the mother complement each
other in giving nurture and providing that holistic care which takes
into account the physical, emotional, psychological, mental, social
and spiritual needs of the child. By precept and example, they mold
his character during his crucial formative years.
However, the Courts intervention is sought in order that a decision
may be made as to which parent shall be given custody over the
young boy. The Courts duty is to determine whether Ray Perez II will
be better off with petitioner or with private respondent. We are not
called upon to declare which party committed the greater fault in their
domestic quarrel.
When the parents of the child are separated, Article 213 of the Family
Code is the applicable law. It 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. (Italics
supplied)
Since the Code does not qualify the word separation to mean legal
separation decreed by a court, couples who are separated in fact,
such as petitioner and private respondent, are covered within its
terms.8
The Revised Rules of Court also contains a similar provision. Rule 99,
Section 6 (Adoption and Custody of Minors) provides:
SEC. 6. Proceedings as to child whose parents are separated.
Appeal.When husband and wife are divorced or living separately
and apart from each other, and the questions as to the care, custody,
and control of a child or children of their marriage is brought before a
Court of First Instance by petition or as an incident to any other

proceeding, the court, upon hearing the testimony as may be

pertinent, shall award the care, custody, and control of each such
child as will be for its best interest, permitting the child to choose
which parent it prefers to live with if it be over ten years of age, unless
the parent chosen be unfit to take charge of the child by reason of
moral depravity, habitual drunkenness, incapacity, or poverty. x x x
No child under seven years of age shall be separated from its mother,
unless the court finds there are compelling reasons therefor. (Italics
supplied)
The provisions of law quoted above clearly mandate that a child under
seven years of age shall not be separated from his mother unless the
court finds compelling reasons to order otherwise. The use of the word
shall in Article 213 of the Family Code and Rule 99, Section 6 of the
Revised Rules of Court connotes a mandatory character. In the case of
Lacson v. San Jose-Lacson,9 the Court declared:
The use of the word shall in Article 36310 of the Civil Code, coupled
with the observations made by the Code Commission in respect to the
said legal provision, underscores its mandatory character. It prohibits
in no uncertain terms the separation of a mother and her child below
seven years, unless such separation is grounded upon compelling
reasons as determined by a court.11
The rationale for awarding the custody of children younger than seven
years of age to their mother was explained by the Code Commission:
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 divorce decree
(relative divorce) will ordinarily be sufficient punishment for her.
Moreover, moral dereliction will not have any effect upon the baby
who is as yet unable to understand her situation. (Report of the Code
Commission, p. 12)12
The Family Code, in reverting to the provision of the Civil Code that a
child below seven years old should not be separated from the mother
(Article 363), has expressly repealed the earlier Article 17, paragraph
three of the Child and Youth Welfare Code (Presidential Decree No.
603) which reduced the childs age to five years. 13

213

The general rule that a child under seven years of age shall not be
separated from his mother finds its raison detre in the basic need of a
child for his mothers loving care.14 Only the most compelling of
reasons shall justify the courts awarding the custody of such a child
to someone other than his mother, such as her unfitness to exercise
sole parental authority. In the past the following grounds have been
considered ample justification to deprive a mother of custody and
parental authority: neglect, abandonment,15 unemployment and
immorality,16 habitual drunkenness,17 drug addiction, maltreatment
of the child, insanity and being sick with a communicable disease. 18
It has long been settled that in custody cases,19 the foremost
consideration is always the welfare and best interest of the child. In
fact, no less than an international instrument, the Convention on the
Rights of the Child provides: 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.20
Courts invariably look into all relevant factors presented by the
contending parents, such as their material resources, social and
moral situations.21
In the case at bench, financial capacity is not a determinative factor
inasmuch as both parties have demonstrated that they have ample
means.
Respondent court stated that petitioner has no permanent place of
work in the U.S.A. and has taken this point against her. The records,
however, show that she is employed in a New York hospital 22 and was,
at the time the petition was filed, still abroad. 23 She testified that she
intends to apply for a job elsewhere, presumably to improve her work
environment and augment her income, as well as for convenience. 24
The Court takes judicial notice of the fact that a registered nurse,
such as petitioner, is still very much in demand in the United States.
Unlike private respondent, a doctor who by his own admission could
not find employment there, petitioner immediately got a job in New
York. Considering her skill and experience, petitioner should find no
difficulty in obtaining work elsewhere, should she desire to do so.
The decision under review casts doubt on petitioners capability to
take care of the child, particularly since she works on twelve-hour
shifts thrice weekly, at times, even at night. There being no one to
help her look after the child, it is alleged that she cannot properly
attend to him. This conclusion is as unwarranted as it is

unreasonable. First, her present work schedule is not so

unmanageable as to deprive her of quality time for Ray II. Quite a
number of working mothers who are away from home for longer
periods of time are still able to raise a family well, applying time
management principles judiciously. Second, many a mother, finding
herself in such a position, has invited her own mother or relative to
join her abroad, providing the latter with plane tickets and liberal
allowances, to look after the child until he is able to take care of
himself. Others go on leave from work until such time as the child can
be entrusted to day-care centers. Delegating child care temporarily to
qualified persons who run day-care centers does not detract from
being a good mother, as long as the latter exercises supervision, for
even in our culture, children are often brought up by housemaids or
yayas under the eagle eyes of the mother. Third, private
respondents work schedule was not presented in evidence at the trial.
Although he is a general practitioner, the records merely show that he
maintains a clinic, works for several companies on retainer basis and
teaches part-time.25 Hence, respondent courts conclusion that his
work schedule is flexible (and h)e can always find time for his son 26 is
not wellfounded. Fourth, the fact that private respondent lives near
his parents and sister is not crucial in this case. Fifth, petitioners
work schedule cited in the respondent courts decision is not
necessarily permanent. Hospitals work in shifts and, given a mothers
instinctive desire to lavish upon her child the utmost care, petitioner
may be expected to arrange her schedule in such a way as to allocate
time for him. Finally, it does not follow that petitioner values her
career more than her family simply because she wants to work in the
United States. There are any number of reasons for a persons seeking
a job outside the country, e.g. to augment her income for the familys
benefit and welfare, and for psychological fulfillment, to name a few.
In the instant case, it has been shown that petitioner earned enough
from her job to be able to construct a house for the family in Mandaue
City. The record describes sketchily the relations between Ray and
Nerissa Perez. The transcripts of the three hearings are inadequate to
show that petitioner did not exert earnest efforts and make sacrifices
to save her marriage.
It is not difficult to imagine how heart-rending it is for a mother whose
attempts at having a baby were frustrated several times over a period
of six years to finally bear one, only for the infant to be snatched from
her before he has even reached his first year. The mothers role in the
life of her child, such as Ray II, is well-nigh irreplaceable. In prose
and poetry, the depth of a mothers love has been immortalized times
without number, finding as it does, its justification, not in fantasy but
in realty.

214

WHEREFORE, the petition for review is GRANTED. The decision of the

Court of Appeals dated September 27, 1994 as well as its Resolution
dated January 24, 1995 are hereby REVERSED and SET ASIDE. The
Order of the trial court dated August 27, 1993 is hereby
REINSTATED. Custody over the minor Ray Z. Perez II is awarded to
his mother, herein petitioner Nerissa Z. Perez. This decision is
immediately executory.
SO ORDERED.

215

SANDOVAL-GUTIERREZ, J.:
G.R. No. 132223. June 19, 2001.*
BONIFACIA P. VANCIL, petitioner, vs. HELEN G. BELMES,
respondent.
Civil Law; Guardianship; Respondent, being the natural mother of the
minor, has the preferential right over that of petitioner to be his
guardian.We agree with the ruling of the Court of Appeals that
respondent, being the natural mother of the minor, has the
preferential right over that of petitioner to be his guardian. This ruling
finds support in Article 211 of the Family Code which provides: Art.
211. The father and the mother shall jointly exercise parental
authority over the persons of their common children. In case of
disagreement, the fathers decision shall prevail, unless there is a
judicial order to the contrary, x x x.
Same; Same; Petitioner, as the surviving grandparent, can exercise
substitute parental authority only in case of death, absence or
unsuitability of respondent.Petitioner, as the surviving grandparent,
can exercise substitute parental authority only in case of death,
absence or unsuitability of respondent. Considering that respondent
is very much alive and has exercised continuously parental authority
over Vincent, petitioner has to prove, in asserting her right to be the
minors guardian, respondents unsuitability. Petitioner, however, has
not proffered convincing evidence showing that respondent is not
suited to be the guardian of Vincent.
Same; Same; Courts should not appoint persons as guardians who are
not within the jurisdiction of our courts.Significantly, this Court has
held that courts should not appoint persons as guardians who are not
within the jurisdiction of our courts for they will find it difficult to
protect the wards.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Democrito C. Barcenas for petitioner.
Manuel P. Legaspi for respondent.

Petition for review on certiorari of the Decision of the Court of Appeals

in CA-G.R. CV No. 45650, In the Matter of Guardianship of Minors
Valerie Vancil and Vincent VancilBonifacia P. Vancil, PetitionerAppellee, vs. Helen G. Belmes, Oppositor-Appellant, promulgated on
July 29, 1997, and its Resolution dated December 18, 1997 denying
the motion for reconsideration of the said Decision.
The facts of the case as summarized by the Court of Appeals in its
Decision are:
Petitioner, Bonifacia Vancil, is the mother of Reeder C. Vancil, a Navy
serviceman of the United States of America who died in the said
country on December 22, 1986. During his lifetime, Reeder had two
(2) children named Valerie and Vincent by his common-law wife,
Helen G. Belmes.
Sometime in May of 1987, Bonifacia Vancil commenced before the
Regional Trial Court of Cebu City a guardianship proceedings over the
persons and properties of minors Valerie and Vincent docketed as
Special Proceedings No. 1618-CEB. At the time, Valerie was only 6
years old while Vincent was a 2-year old child. It is claimed in the
petition that the minors are residents of Cebu City, Philippines and
have an estate consisting of proceeds from their fathers death
pension benefits with a probable value of P100,000.00.
Finding sufficiency in form and in substance, the case was set for
hearing after a 3-consecutive-weekly publications with the Sunstar
Daily. On July 15, 1987, petitioner, Bonifacia Vancil was appointed
legal and judicial guardian over the persons and estate of Valerie
Vancil and Vincent Vancil, Jr.
On August 13, 1987, the natural mother of the minors, Helen
Belmes, submitted an opposition to the subject guardianship
proceedings asseverating that she had already filed a similar petition
for guardianship under Special Proceedings No. 2819 before the
Regional Trial Court of Pagadian City.
Thereafter, on June 21, 1988, Helen Belmes followed her opposition
with a motion for the Removal of Guardian and Appointment of a New
One, asserting that she is the natural mother in actual custody of and
exercising parental authority over the subject minors at Maralag,
Dumingag, Zamboanga del Sur where they are permanently residing;

216

that the petition was filed under an improper venue; and that at the
time the petition was filed Bonifacia Vancil was a resident of 140
Hurliman Court, Canon City, Colorado, U.S.A. being a naturalized
American citizen.
On October 12, 1988, after due proceedings, the trial court rejected
and denied Belmes motion to remove and/or to disqualify Bonifacia
as guardian of Valerie and Vincent, Jr. and instead ordered petitioner
Bonifacia Vancil to enter the office and perform her duties as such
guardian upon the posting of a bond of P50,000.00. The subsequent
attempt for a reconsideration was likewise dismissed in an Order
dated November 24, 1988.1
On appeal, the Court of Appeals rendered its assailed Decision
reversing the RTC order of October 12, 1988 and dismissing Special
Proceedings No. 1618-CEB.
The Court of Appeals held:
Stress should likewise be made that our Civil Code considers
parents, the father, or in the absence, the mother, as natural
guardian of her minor children. The law on parental authority under
the Civil Code or P.D. 603 and now the New Family Code, (Article 225
of the Family Code) ascribe to the same legal pronouncements.
Section 7 of Rule 93 of the Revised Rules of Court confirms the
designation of the parents as ipso facto guardian of their minor
children without need of a court appointment and only for good
reason may another person be named. Ironically, for the petitioner,
there is nothing on record of any reason at all why Helen Belmes, the
biological mother, should be deprived of her legal rights as natural
guardian of her minor children. To give away such privilege from
Helen would be an abdication and grave violation of the very basic
fundamental tenets in civil law and the constitution on family
solidarity.2
On March 10, 1998, Bonifacia Vancil filed with this Court the present
petition, raising the following legal points:
1.

1. The Court of Appeals gravely erred in ruling that the

preferential right of a parent to be appointed guardian over the
persons and estate of the minors is absolute, contrary to
existing jurisprudence.
2. 2. The Court of Appeals gravely erred in ruling that Oppositor
Helen G. Belmes, the biological mother, should be appointed

the guardian of the minors despite the undisputed proof that

under her custody, her daughter minor Valerie Vancil was
raped seven times by Oppositors livein partner.
3. 3. The respondent (sic) Court of Appeals gravely erred when it
disqualified petitioner Bonifacia P. Vancil to be appointed as
judicial guardian over the persons and estate of subject
minors despite the fact that she has all the qualifications and
none of the disqualifications as judicial guardian, merely on
the basis of her U.S. citizenship which is clearly not a
statutory requirement to become guardian.
At the outset, let it be stressed that in her Manifestation/ Motion,
dated September 15, 1998, respondent Helen Belmes stated that her
daughter Valerie turned eighteen on September 2, 1998 as shown by
her Birth Certificate.3 Respondent thus prayed that this case be
dismissed with respect to Valerie, she being no longer a proper
subject of guardianship proceedings. The said Manifestation/Motion
was noted by this Court in its Resolution dated November 11, 1998.
Considering that Valerie is already of major age, this petition has
become moot with respect to her. Thus, only the first and third legal
points raised by petitioner should be resolved.
The basic issue for our resolution is who between the mother and
grandmother of minor Vincent should be his guardian.
We agree with the ruling of the Court of Appeals that respondent,
being the natural mother of the minor, has the preferential right over
that of petitioner to be his guardian. This ruling finds support in
Article 211 of the Family Code which provides:
Art. 211. The father and the mother shall jointly exercise parental
authority over the persons of their common children. In case of
disagreement, the fathers decision shall prevail, unless there is a
judicial order to the contrary, x x x.
Indeed, being the natural mother of minor Vincent, respondent has
the corresponding natural and legal right to his custody. In SagalaEslao vs. Court of Appeals,4 this Court held:
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

217

created by the state or decisions of the courts, but derives from the
nature of the parental relationship.
Petitioner contends that she is more qualified as guardian of Vincent.
Petitioners claim to be the guardian of said minor can only be realized
by way of substitute parental authority pursuant to Article 214 of the
Family Code, thus:
Art. 214. In case of death, absence or unsuitability of the parents,
substitute parental authority shall be exercised by the surviving
grandparent, x x x.
In Santos, Sr. vs. Court of Appeals,5 this Court ruled:
The law vests on the father and mother joint parental authority over
the persons of their common children. In case of absence or death of
either parent, the parent present shall continue exercising parental
authority. Only in case of the parents death, absence or unsuitability
may substitute parental authority be exercised by the surviving
grandparent.
Petitioner, as the surviving grandparent, can exercise substitute
parental authority only in case of death, absence or unsuitability of
respondent. Considering that respondent is very much alive and has
exercised continuously parental authority over Vincent, petitioner has
to prove, in asserting her right to be the minors guardian,
respondents unsuitability. Petitioner, however, has not proffered
convincing evidence showing that respondent is not suited to be the
guardian of Vincent. Petitioner merely insists that respondent is
morally unfit as guardian of Valerie considering that her
(respondents) live-in partner raped Valerie several times. But Valerie,
being now of major age, is no longer a subject of this guardianship
proceeding.
Even assuming that respondent is unfit as guardian of minor Vincent,
still petitioner cannot qualify as a substitute guardian. It bears
stressing that she is an American citizen and a resident of Colorado.
Obviously, she will not be able to perform the responsibilities and
obligations required of a guardian. In fact, in her petition, she
admitted the difficulty of discharging the duties of a guardian by an
expatriate, like her. To be sure, she will merely delegate those duties
to someone else who may not also qualify as a guardian.

Moreover, we observe that respondents allegation that petitioner has

not set foot in the Philippines since 1987 has not been controverted
by her. Besides, petitioners old age and her conviction of libel by the
Regional Trial Court, Branch 6, Cebu City in Criminal Case No. CBU168846 filed by one Danilo R. Deen, will give her a second thought of
staying here. Indeed, her coming back to this country just to fulfill the
duties of a guardian to Vincent for only two years is not certain.
Significantly, this Court has held that courts should not appoint
persons as guardians who are not within the jurisdiction of our courts
for they will find it difficult to protect the wards. In Guerrero vs.
Teran,7 this Court held:
Doa Maria Muoz y Gomez was, as above indicated, removed upon
the theory that her appointment was void because she did not reside
in the Philippine Islands. There is nothing in the law which requires
the courts to appoint residents only as administrators or guardians.
However, notwithstanding the fact that there are no statutory
requirements upon this question, the courts, charged with the
responsibilities of protecting the estates of deceased persons, wards of
the estate, etc., will find much difficulty in complying with this duty
by appointing administrators and guardians who are not personally
subject to their jurisdiction. Notwithstanding that there is no
statutory requirement, the courts should not consent to the
appointment of persons as administrators and guardians who are not
personally subject to the jurisdiction of our courts here.
WHEREFORE, the appealed Decision is hereby AFFIRMED, with
modification in the sense that Valerie, who has attained the age of
majority, will no longer be under the guardianship of respondent
Helen Belmes.
Costs against petitioner.
SO ORDERED.
Melo (Chairman), Panganiban and Gonzaga-Reyes, JJ., concur.
Vitug, J., Please see Concurring Opinion.

218

G.R. No. 143363. February 6, 2002.*

ST. MARYS ACADEMY, petitioner, vs. WILLIAM CARPITANOS and
LUCIA S. CARPITANOS, GUADA DANIEL, JAMES DANIEL II,
JAMES DANIEL, SR., and VIVENCIO VILLANUEVA, respondents.
Schools and Universities; Persons and Institutions With Special
Parental Authority Over Minor Children; The special parental authority
and responsibility applies to all authorized activities, whether inside or
outside the premises of the school, entity or institution.Under Article
218 of the Family Code, the following shall have special parental
authority over a minor child while under their supervision, instruction
or custody: (1) the school, its administrators and teachers; or (2) the
individual, entity or institution engaged in child care. This special
parental authority and responsibility applies to all authorized
activities, whether inside or outside the premises of the school, entity
or institution. Thus, such authority and responsibility applies to field
trips, excursions and other affairs of the pupils and students outside
the school premises whenever authorized by the school or its
teachers. Under Article 219 of the Family Code, if the person under
custody is a minor, those exercising special parental authority are
principally and solidarily liable for damages caused by the acts or
omissions of the unemancipated minor under their supervision,
instruction, or custody.
Same; Same; For a school to be liable, there must be a finding that the
act or omission considered as negligent was the proximate cause of the
injury caused because the negligence must have a causal connection to
the accident.For petitioner to be liable, there must be a finding that
the act or omission considered as negligent was the proximate cause
of the injury caused because the negligence must have a causal
connection to the accident. In order that there may be a recovery for
an injury, however, it must be shown that the injury for which
recovery is sought must be the legitimate consequence of the wrong
done; the connection between the negligence and the injury must be a
direct and natural sequence of events, unbroken by intervening
efficient causes. In other words, the negligence must be the proximate
cause of the injury. For, negligence, no matter in what it consists,
cannot create a right of action unless it is the proximate cause of the
injury complained of. And the proximate cause of an injury is that
cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which
the result would not have occurred.

Same; Same; Words and Phrases; The proximate cause of an injury is

that cause, which, in natural and continuous sequence, unbroken by
any efficient intervening cause, produces the injury, and without which
the result would not have occurred.Liability for the accident, whether
caused by the negligence of the minor driver or mechanical
detachment of the steering wheel guide of the jeep, must be pinned on
the minors parents primarily. The negligence of petitioner St. Marys
Academy was only a remote cause of the accident. Between the
remote cause and the injury, there intervened the negligence of the
minors parents or the detachment of the steering wheel guide of the
jeep. The proximate cause of an injury is that cause, which, in
natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result
would not have occurred.
Quasi-Delicts; Torts; Motor Vehicles; The registered owner of any
vehicle, even if not used for public service, would primarily be
responsible to the public or to third persons for injuries caused the
latter while the vehicle was being driven on the highways or streets.
Incidentally, there was no question that the registered owner of the
vehicle was respondent Villanueva. He never denied and in fact
admitted this fact. We have held that the registered owner of any
vehicle, even if not used for public service, would primarily be
responsible to the public or to third persons for injuries caused the
latter while the vehicle was being driven on the highways or streets.
Hence, with the overwhelming evidence presented by petitioner and
the respondent Daniel spouses that the accident occurred because of
the detachment of the steering wheel guide of the jeep, it is not the
school, but the registered owner of the vehicle who shall be held
responsible for damages for the death of Sherwin Carpitanos.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Padilla Law Office for petitioner.
Peter Y. Co for respondents Daniel and Villanueva.
Feliciano M. Maraon for respondents Carpitanos.
PARDO, J.:

219

The case is an appeal via certiorari from the decision 1 of the Court of
Appeals as well as the resolution denying reconsideration, holding
petitioner liable for damages arising from an accident that resulted in
the death of a student who had joined a campaign to visit the public
schools in Dipolog City to solicit enrollment.
The Facts
The facts, as found by the Court of Appeals, are as follows:
Claiming damages for the death of their only son, Sherwin
Carpitanos, spouses William Carpitanos and Lucia Carpitanos filed on
June 9, 1995 a case against James Daniel II and his parents, James
Daniel Sr. and Guada Daniel, the vehicle owner, Vivencio Villanueva
and St. Marys Academy before the Regional Trial Court of Dipolog
City.
On 20 February 1997, Branch 6 of the Regional Trial Court of
Dipolog City rendered its decision the dispositive portion of which
reads as follows:
WHEREFORE, PREMISES CONSIDERED, judgment is hereby
rendered in the following manner:
1. 1. Defendant St. Marys Academy of Dipolog City, is hereby
ordered to pay plaintiffs William Carpitanos and Luisa
Carpitanos, the following sums of money:
1. a. FIFTY THOUSAND PESOS (P50,000.00) indemnity for the
loss of life of Sherwin S. Carpitanos;
2. b.
FORTY
THOUSAND
PESOS
(P40,000.00) actual damages incurred by plaintiffs for burial
and related expenses;
3. c. TEN THOUSAND PESOS (P10,000.00) for attorneys fees;
4. d. FIVE HUNDRED THOUSAND PESOS (P500,000.00) for
moral damages; and to pay costs.
1. 2. Their liability being only subsidiary, defendants James
Daniel, Sr. and Guada Daniel are hereby ordered to pay herein
plaintiffs the amount of damages above-stated in the event of
insolvency of principal obligor St. Marys Academy of Dipolog
City;
2. 3. Defendant James Daniel II, being a minor at the time of the
commission of the tort and who was under special parental

authority of defendant St. Marys Academy, is ABSOLVED

from paying the above-stated damages, same being adjudged
against de-fendants St. Marys Academy, and subsidiarily,
against his parents;
3. 4. Defendant Vivencio Villanueva is hereby ABSOLVED of any
liability. His counterclaim not being in order as earlier
discussed in this decision, is hereby DISMISSED.
IT IS SO ORDERED.
(Decision, pp. 32-33; Records, pp. 205-206).
From the records it appears that from 13 to 20 February 1995,
defendant-appellant St. Marys Academy of Dipolog City conducted an
enrollment drive for the school year 1995-1996. A facet of the
enrollment campaign was the visitation of schools from where
prospective enrollees were studying. As a student of St. Marys
Academy, Sherwin Carpitanos was part of the campaigning group.
Accordingly, on the fateful day, Sherwin, along with other high school
students were riding in a Mitsubishi jeep owned by defendant
Vivencio Villanueva on their way to Larayan Elementary School,
Larayan, Dapitan City. The jeep was driven by James Daniel II then
15 years old and a student of the same school. Allegedly, the latter
drove the jeep in a reckless manner and as a result the jeep turned
turtle.
Sherwin Carpitanos died as a result of the injuries he sustained from
the accident.2
In due time, petitioner St. Marys Academy appealed the decision to
the Court of Appeals.3
On February 29, 2000, the Court of Appeals promulgated a decision
reducing the actual damages to P25,000.00 but otherwise affirming
the decision a quo in toto.4
On February 29, 2000, petitioner St. Marys Academy filed a motion
for reconsideration of the decision. However, on May 22, 2000, the
Court of Appeals denied the motion.5
Hence, this appeal.6

220

The Issues
1. 1) Whether the Court of Appeals erred in holding the petitioner
liable for damages for the death of Sherwin Carpitanos.
2. 2) Whether the Court of Appeals erred in affirming the award
of moral damages against the petitioner.
The Courts Ruling
We reverse the decision of the Court of Appeals.
The Court of Appeals held petitioner St. Marys Academy liable for the
death of Sherwin Carpitanos under Articles 218 7 and 2198 of the
Family Code, pointing out that petitioner was negligent in allowing a
minor to drive and in not having a teacher accompany the minor
students in the jeep.
Under Article 218 of the Family Code, the following shall have special
parental authority over a minor child while under their supervision,
instruction or custody: (1) the school, its administrators and teachers;
or (2) the individual, entity or institution engaged in child care. This
special parental authority and responsibility applies to all authorized
activities, whether inside or outside the premises of the school, entity
or institution. Thus, such authority and responsibility applies to field
trips, excursions and other affairs of the pupils and students outside
the school premises whenever authorized by the school or its
teachers.9
Under Article 219 of the Family Code, if the person under custody is a
minor, those exercising special parental authority are principally and
solidarily liable for damages caused by the acts or omissions of the
unemancipated minor under their supervision, instruction, or
custody.10
However, for petitioner to be liable, there must be a finding that the
act or omission considered as negligent was the proximate cause of
the injury caused because the negligence, must have a causal
connection to the accident.11
In order that there may be a recovery for an injury, however, it must
be shown that the injury for which recovery is sought must be the
legitimate consequence of the wrong done; the connection between the
negligence and the injury must be a direct and natural sequence of
events, unbroken by intervening efficient causes. In other words, the

negligence must be the proximate cause of the injury. For, negligence,

no matter in what it consists, cannot create a right of action unless it
is the proximate cause of the injury complained of. And the
proximate cause of an injury is that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening cause,
produces the injury, and without which the result would not have
occurred. 12
In this case, the respondents failed to show that the negligence of
petitioner was the proximate cause of the death of the victim.
Respondents Daniel spouses and Villanueva admitted that the
immediate cause of the accident was not the negligence of petitioner
or the reckless driving of James Daniel II, but the detachment of the
steering wheel guide of the jeep.
In their comment to the petition, respondents Daniel spouses and
Villanueva admitted the documentary exhibits establishing that the
cause of the accident was the detachment of the steering wheel guide
of the jeep. Hence, the cause of the accident was not the recklessness
of James Daniel II but the mechanical defect in the jeep of Vivencio
Villanueva. Respondents, including the spouses Carpitanos, parents
of the deceased Sherwin Carpitanos, did not dispute the report and
testimony of the traffic investigator who stated that the cause of the
accident was the detachment of the steering wheel guide that caused
the jeep to turn turtle.
Significantly, respondents did not present any evidence to show that
the proximate cause of the accident was the negligence of the school
authorities, or the reckless driving of James Daniel II. Hence, the
respondents reliance on Article 219 of the Family Code that those
given the authority and responsibility under the preceding Article
shall be principally and solidarily liable for damages caused by acts or
omissions of the unemancipated minor was unfounded.
Further, there was no evidence that petitioner school allowed the
minor James Daniel II to drive the jeep of respondent Vivencio
Villanueva. It was Ched Villanueva, grandson of respondent Vivencio
Villanueva, who had possession and control of the jeep. He was
driving the vehicle and he allowed James Daniel II, a minor, to drive
the jeep at the time of the accident.
Hence, liability for the accident, whether caused by the negligence of
the minor driver or mechanical detachment of the steering wheel

221

guide of the jeep, must be pinned on the minors parents primarily.

The negligence of petitioner St. Marys Academy was only a remote
cause of the accident. Between the remote cause and the injury, there
intervened the negligence of the minors parents or the detachment of
the steering wheel guide of the jeep.

the detachment of the steering wheel guide of the jeep, it is not the
school, but the registered owner of the vehicle who shall be held
responsible for damages for the death of Sherwin Carpitanos.

The proximate cause of an injury is that cause, which, in natural

and continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would not
have occurred.13

WHEREFORE, the Court REVERSES and SETS ASIDE the de cision of

the Court of Appeals18 and that of the trial court.19 The Court
remands the case to the trial court for determination of the liability of
defendants, excluding petitioner St. Marys Academy, Dipolog City.

Considering that the negligence of the minor driver or the detachment

of the steering wheel guide of the jeep owned by respondent
Villanueva was an event over which petitioner St. Marys Academy
had no control, and which was the proximate cause of the accident,
petitioner may not be held liable for the death resulting from such
accident.

No costs.

Consequently, we find that petitioner likewise cannot be held liable for

moral damages in the amount of P500,000.00 awarded by the trial
court and affirmed by the Court of Appeals.
Though incapable of pecuniary computation, moral damages may be
recovered if they are the proximate result of defendants wrongful act
or omission.14 In this case, the proximate cause of the accident was
not attributable to petitioner.
For the reason that petitioner was not directly liable for the accident,
the decision of the Court of Appeals ordering petitioner to pay death
indemnity to respondent Carpitanos must be deleted. Moreover, the
grant of attorneys fees as part of damages is the exception rather
than the rule.15 The power of the court to award attorneys fees under
Article 2208 of the Civil Code demands factual, legal and equitable
justification.16 Thus, the grant of attorneys fees against the petitioner
is likewise deleted.
Incidentally, there was no question that the registered owner of the
vehicle was respondent Villanueva. He never denied and in fact
admitted this fact. We have held that the registered owner of any
vehicle, even if not used for public service, would primarily be
responsible to the public or to third persons for injuries caused the
latter while the vehicle was being driven on the highways or streets. 17
Hence, with the overwhelming evidence presented by petitioner and
the respondent Daniel spouses that the accident occurred because of

The Fallo

SO ORDERED.
Davide, Jr. (C.J., Chairman), Kapunan and Ynares-Santiago, JJ.,
concur.
Puno, J., In the result.
Judgment reversed and set aside. Case remanded to trial court for
determination of liability of defendants.
Notes.A rent-a-car company is not liable for damages based on
quasi-delict for fault or negligence of the car lessee in driving the
motor vehicle. (FGU Insurance Corporation vs. Court of Appeals, 287
SCRA 718 [1998])
A party who asserts that another person, by violation of the Land
Transportation and Traffic Code, contributed to the collision
of vehicles, has the burden of showing a causal connection between
the injury received and the alleged violation, i.e., that the violation of
the statute was the proximate or legal cause of the injury or that it
substantially contributed theretonegligence, consisting in whole or
in part, of violation of law, like any other negligence, is without legal
consequence unless it is a contributing cause of the injury. (Sanitary
Steam Laundry, Inc. vs. Court of Appeals, 300 SCRA 20 [1998])
Accident and negligence are intrinsically contradictoryone cannot
exist with the other. (Jarco Marketing Corporation vs. Court of Appeals,
321 SCRA 375 [1999])

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The mere fact that an employee was using a service vehicle at the time
of the injurious incident is not of itself sufficient to charge his
employer with liability for the negligent operation of said vehicle
unless it appears that he was operating the vehicle within the course
or scope of his employment. (Castilex Industrial Corporation vs.
Vasquez, Jr., 321 SCRA 393 [1999])

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