EN BANC

[G.R. No. L-11005. October 31, 1957.]

SIARI VALLEY ESTATES, INC., petitioner, vs. FILEMON
LUCASAN and Hon. W. M. ORTEGA, Judge of the Court of
First Instance of Zamboanga del Norte, respondents.
Orendain & Sarmiento for petitioner.
Hon. Wenceslao M. Ortega in his own behalf.
Barrios, Barrios & Lucasan for respondents.
DECISION
BENGZON, J :
p

This is an offshoot of our decision in G.R. No. L-7046, Siari Valley

Estate Inc. vs. Filemon Lucasan, 1 wherein we affirmed, on appeal, the
judgment of Hon. Patricio Ceniza, of the Zamboanga court of first instance in
its Civil Case No. 134. The dispositive part of such affirmed judgment read as
follows:
Valley Estate all the cattle that may be found in the cattle ranch
". . . judgment is hereby rendered, adjudicating to the Siari of
Filemon Lucasan specially the 321 heads that had been entrusted to his
care as receiver or trustee of this Court and ordering the defendant to
deliver to the plaintiff all said cattle or their value amounting to P40,000
to pay damages to the Siari Valley Estate for the 400 heads of cattle that
he sold since 1946 up to the date of the trial at the rate of P100 per head
or P40,000 plus interest at the rate of 6 per cent from the date of the trial
of this case in January, 1951 and to pay the cost of the proceeding. In
addition, the defendant is hereby ordered to allow the Siari Valley Estate

to round up all the buffaloes that may be found in his cattle ranch after
the Siari Valley Estate shall have posted a bond in the amount of P5,000
to answer for whatever damages the operation may cause to him.
With regard to the contempt proceedings, Filemon Lucasan is
hereby found guilty of the charges and he is hereby sentenced to pay a
fine of P500 pursuant to section 6 Rule 64 of the Rules of Court or suffer
subsidiary imprisonment in case of insolvency at the rate of one day for
every P2.50 that he fails to pay.
With regard to the three causes of action the counter-claim of the
defendant, all of them are hereby dismissed for lack of merit.
Upon petition by the intervenors, the intervention had been
dismissed in a previous order of this Court, without prejudice to the filing
of an independent action. (Italics ours.)

After our decision had become final, the expediente was returned to the
court below for execution. Thereupon a dispute arose whether we hadaffirmed
also that part of Judge Ceniza's judgment underlined in the above quotation
(concerning buffaloes). Lucasan pointed out that, in quoting the dispositive
paragraphs of the appealed judgment, our decision had omitted the
underlined portion. Therefore, he argued, the affirmance of the judgment did
not include the directive about buffaloes. As the respondent judge sustained
Lucasan's contention, this petition for mandamus and other auxiliary remedies
was promptly filed.
Knowing the extent and scope of our decision in said appealed case,
we issued a preliminary injunction designed to protest petitioner's interests.
And now, after the parties have been heard, we turn to the principal question,
which is: did we uphold the right given to plaintiff by the court below "to round
up the buffaloes"? The answer must be: we did. In the concluding part of our
decision we found the appealed judgment to be substantially in accordance
with the facts and the law; and then we adjudged: "Therefore it is hereby
affirmed with cost against appellant."
Ordinarily the affirmed judgment is that contained in its dispositive part;
in the said Siari Valley appealed case, the above- quoted four paragraphs.

It is true that in the opening statements our decision quoted the

dispositive part of the appealed judgment as follows:
"Premises considered, judgment is hereby rendered, adjudicating
to the Siari Valley Estate all the cattle that may be found in the cattle
ranch of Filemon Lucasan, specially the 321 heads that had been
entrusted to his care as receiver or trustee of this Court and ordering the
defendant to deliver to the plaintiff all said cattle or their value amounting
to P40,000, to pay damages to the Siari Valley Estate for the 400 heads
of cattle that he sold since 1946 up to the date of the trial at the rate of
P100 per head or P40,000 plus interest at the rate of 6 per cent from the
date of the trial of this case in January, 1951 and to pay the costs of the
proceeding.
With regard to the contempt proceedings, Filemon Lucasan is
hereby found guilty of the charges and he is hereby sentenced to pay a
fine of P500 pursuant to section 6, Rule 64, of the Rules of Court or
suffer subsidiary imprisonment in case of insolvency at the rate of one
day for every P2.50 that he fails to pay."

thereby omitting the portion regarding buffaloes. But observe that we used
elliptical signs, i.e. several *'s which indicated the omission of some portion or
portions. This did not evince any intention to "modify" the judgment by
eliminating the omitted portion. 2 The judgment, we decreed in concluding, "is
hereby affirmed". We did not say, it is hereby modified. Neither did we say,
"the quoted portion of the judgment is hereby affirmed".
For that matter, would respondents maintain likewise that the last two
paragraphs of the dispositive part of the appealed judgment (regarding the
counterclaim and the intervenors) were not equally affirmed, because they
were not quoted?
We explained in Contreras vs. Felix, 78 Phil., 570, 44 Off. Gaz., 4306
that "the final judgment as rendered is the judgment of the court, irrespective
of all seemingly contrary statements in the decision", and that the judgment
must be distinguished from the opinion. Our decree was one affirming the
appealed judgment. If any statement in the opinion preceding the decree
seemingly excluded a portion (which we deny), it must be overlooked,
because the judgment or the decree prevails over the opinion.

In construing confirmatory decisions of appellate courts the practice is

to regard the whole of the appealed judgment to have been upheld 3 even if
several points thereof have not been discussed "or touched upon in such
confirmatory decision." 4
The truth is, as may be verified from our decision itself, our statement
omitted the portion concerning buffaloes because it was immaterial for the
purpose of the appeal. It was not a point necessary to understand or decide
the questions then before us. 5 Indeed the whole decision made no reference
to the subject of buffaloes, even as appellant's brief (Lucasan) failed to debate
such aspect of the appealed judgment.
The argument is advanced that in as much as the plaintiff "never
claimed the buffaloes in its amended complaint (and) the (lower court could
not have granted that which was not prayed", therefore the Supreme Court
most probably had excluded the matter (of buffaloes) from its confirmatory
order. Such reasoning has no valid foundation, because Lucasan was not in
default, there was a trial, and under the circumstances the plaintiff could be
granted any relief that was supported by the evidence "although not specified
in his pleadings." 6
The other argument addressed to the proposition that this Court
shouldn't have, and couldn't have affirmed that phase of the judgment is too
late, if not impertinent. The affirmance without modification of the judgment is
final. And the parties should realize that the matter of buffaloes was not such
plain error (supposing it was error) as to call for special consideration by this
Court even if ignored 7 by appellant's counsel in his brief.
All the foregoing shows the respondent judge's mistake in declining to
permit Siari Valley Inc. to round up its buffaloes roaming on Lucasan's ranch.
But the latter's resistance to such rounding-up, founded on a rather technical
plea, despite his knowledge that he had complained of such buffaloes grazing
on his land (R.A. in L-7046 p. 140), was not a mere mistake but a rather sharp
practice transcending the limits of good faith. However overruling
petitioner's contention Lucasan will not be declared to have committed
contempt of court considering on the one hand that his ground of objection
appeared to be not so flimsy 8 as to make his conduct a "willful disregard or

disobedience" 9 or a "clear and contumacious refusal to obey" 10 and on the

other hand remembering that the power to punish for contempt should be
conservatively exercised. 11
Wherefore, the petition for mandamus is granted, the respondent judge,
and whoever may be acting in his place, is hereby ordered to enforce, and the
other respondent Filemon Lucasan is ordered to obey, the aforementioned
judgment in full of Judge Ceniza which was totally affirmed by this Court on
appeal. Costs of this proceeding shall be paid by respondent Lucasan. So
ordered.
Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador,
Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur.
|||

(Siari Valley Estates, In.c v. Lucasan, G.R. No. L-11005, [October 31, 1957],
102 PHIL 390-395)

THIRD DIVISION
[G.R. No. 97898. August 11, 1997.]
FLORANTE F. MANACOP, petitioner, vs. COURT OF APPEALS
and E & L MERCANTILE, INC., respondents.
Jose F . Manacop for petitioner.
Cesar D. Turiano for private respondent.
SYNOPSIS
Private respondent E & L Mercantile, Inc. filed a complaint against petitioner and
his company, F.F. Manacop Construction Co., Inc. before the Regional Trial Court
of Pasig to collect an indebtedness of P3,359,218.45. Instead of filing an answer,
petitioner and his company entered into a compromise agreement. The trial court
approved the agreement and enjoined the parties to comply in good faith. Three
months thereafter, private respondent filed a motion for execution, which the trial
court granted. The sheriff levied on several personal and real properties of the
petitioner including the subject residential house and lot. The chattels were sold
at public auction in partial satisfaction of the judgment debts. Petitioner filed a
motion to quash on the ground that the judgment was not yet executory. Private
respondent opposed the motion and petitioner's addendum to the motion to
quash the writ of execution assailing the inclusion of the subject residential house
and lot, which by its very nature exempt from execution. Private respondent
alleged that the property covered by TCT No. 174180 could not be considered as
a family home on the grounds that petitioner was already living abroad and the
same was not judicially constituted as a family home to exempt it from execution.
The trial court denied petitioner's motion to quash the writ of execution. Petitioner
and his company filed with the Court of Appeals a petition for certiorari assailing
the order of the trial court. Hence, the present petition. The core issue raised by
petitioner is whether a final and executory decision promulgated and a writ of

execution issued before the effectivity of the Family Code can be executed on a
family home constituted under the provisions of said code.
The Supreme Court ruled that under the Family Code which took effect on
August 3, 1988, the subject property became petitioner's family home under the
simplified process embodied in Article 153 of said code, however, the case
of Modequillo vs. Breva explicitly ruled that said provision of the Family Code
does not have a retroactive effect. In other words, prior to August 5, 1988, the
procedure mandated by the Civil Code had to be followed for a family home to be
constituted as such. There being no proof that the subject property was judicially
or extrajudicially constituted as a family home, it follows that petitioner cannot
avail of the law's protective mantle.
Petition denied.
DECISION
PANGANIBAN, J :
p

May a writ of execution of a final and executory judgment issued before the
effectivity of the Family Code be executed on a house and lot constituted as a
family home under the provision of said Code?
Statement of the Case
This is the principal question posed by petitioner in assailing the Decision of
Respondent Court of Appeals 1 in CA-G.R. SP No. 18906 promulgated on
February 21, 1990 and its Resolution promulgated on March 21, 1991, affirming
the orders issued by the trial court commanding the issuance of various writs of
execution to enforce the latter's decision in Civil Case No. 53271.
LibLex

The Facts
Petitioner Florante F. Manacop 2 and his wife Eulaceli purchased on March 10,
1972 a 446-square-meter residential lot with a bungalow, in consideration of
P75,000.00. 3 The property, located in Commonwealth Village, Commonwealth
Avenue, Quezon City, is covered by Transfer Certificate of Title No. 174180.

On March 17, 1986, Private Respondent E & L Mercantile, Inc. filed a complaint
against petitioner and F.F. Manacop Construction Co., Inc. before the Regional
Trial Court of Pasig, Metro Manila to collect. an indebtedness of P3,359,218.45.
Instead of filing an answer, petitioner and his company entered into a
compromise agreement with private respondent, the salient portion of which
provides:
"c. That defendants will undertake to pay the amount of P2,000,000.00
as and when their means permit, but expeditiously as possible as their
collectibles will be collected." (sic)

On April 20, 1986, the trial court rendered judgment approving the
aforementioned compromise agreement. It enjoined the parties to comply with
the agreement in good faith. On July 15, 1986, private respondent filed a motion
for execution which the lower court granted on September 23, 1986. However,
execution of the judgment was delayed. Eventually, the sheriff levied on several
vehicles and other personal properties of petitioner. In partial satisfaction of the
judgment debt, these chattels were sold at public auction for which certificates of
sale were correspondingly issued by the sheriff.
On August 1, 1989, petitioner and his company filed a motion to quash the alias
writs of execution and to stop the sheriff from continuing to enforce them on the
ground that the judgment was not yet executory. They alleged that the
compromise agreement had not yet matured as there was no showing that they
had the means to pay the indebtedness or that their receivables had in fact been
collected. They buttressed their motion with supplements and other pleadings.
On August 11, 1989, private respondent opposed the motion on the following
grounds: (a) it was too late to question the September 23, 1986 Order
considering that more than two years had elapsed; (b) the second alias writ of
execution had been partially implemented; and (c) petitioner and his company
were in bad faith in refusing to pay their indebtedness notwithstanding that from
February 1984 to January 5, 1989, they had collected the total amount of
P41,664,895.56. On September 21, 1989, private respondent filed an opposition
to petitioner and his company's addendum to the motion to quash the writ of
execution. It alleged that the property covered by TCT No. 174180 could not be

considered a family home on the grounds that petitioner was already living
abroad and that the property, having been acquired in 1972, should have
been judiciallyconstituted as a family home to exempt it from execution.
On September 26, 1989, the lower court denied the motion to quash the writ of
execution and the prayers in the subsequent pleadings filed by petitioner and his
company. Finding that petitioner and his company had not paid their
indebtedness even though they collected receivables amounting to
P57,224,319.75, the lower court held that the case had become final and
executory. It also ruled that petitioner's residence was not exempt from execution
as it was not duly constituted as a family home, pursuant to the Civil Code.
Hence, petitioner and his company filed with the Court of Appeals a petition for
certiorari assailing the lower court's Orders of September 23,
1986 andSeptember 26, 1989. On February 21, 1990, Respondent Court of
Appeals rendered its now questioned Decision dismissing the petition for
certiorari. The appellate court quoted with approval the findings of the lower court
that: (a) the judgment based on the compromise agreement had become final
and executory, stressing that petitioner and his company had collected the total
amount of P57,224,319.75 but still failed to pay their indebtedness and (b) there
was no showing that petitioner's residence had been duly constituted as a family
home to exempt it from execution. On the second finding, the Court of Appeals
added that:
". . . We agree with the respondent judge that there is no showing in
evidence that petitioner Maacop's residence under TCT 174180 has
been duly constituted as a family home in accordance with law. For one
thing, it is the clear implication of Article 153 that the family home
continues to be so deemed constituted so long as any of its beneficiaries
enumerated in Article 154 actually resides therein. Conversely, it ceases
to continue as such family home if none of its beneficiaries actually
occupies it. There is no showing in evidence that any of its beneficiaries
is actually residing therein. On the other hand, the unrefuted assertion of
private respondent is that petitioner Florante Maacop had already left
the country and is now, together with all the members of his family, living
in West Covina, Los Angeles, California, U.S.A."

Petitioner and his company filed a motion for reconsideration of this Decision on
the ground that the property covered by TCT No. 174180 was exempt from
execution. On March 21, 1991, the Court of Appeals rendered the challenged
Resolution denying the motion. It anchored its ruling onModequillo
v. Breva, 4 which held 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."
Applying the foregoing pronouncements to this case, the Court of Appeals
explained:
"The record of the present case shows that petitioners incurred the debt
of P3,468,000.00 from private respondent corporation on February 18,
1982 (Annex 'A', Petition). The judgment based upon the compromise
agreement was rendered by the court on April 18, 1986 (Annex 'C', ibid).
Paraphrasing the aforecited Modequillo case, both the debt and the
judgment preceded the effectivity of the Family Code on August 3, 1988.
Verily, the case at bar does not fall under the exemptions from execution
provided under Article 155 of the Family Code."

Undeterred, petitioner filed the instant petition for review on certiorari arguing that
the Court of Appeals misapplied Modequillo. He contends that there was no need
for him to constitute his house and lot as a family home for it to be treated as
such since he was and still is a resident of the same property from the time "it
was levied upon and up to this moment."
The Issue
As stated in the opening sentence of this Decision, the issue in this case boils
down to whether a final and executory decision promulgated and a writ of
execution issued before the effectivity of the Family Code can be executed on a
family home constituted under the provisions of the said Code.
The Court's Ruling

We answer the question in the affirmative. The Court of Appeals committed no

reversible error. On the contrary, its Decision and Resolution are supported by
law and applicable jurisprudence.
No Novel Issue
At the outset, the Court notes that the issue submitted for resolution in the instant
case is not entirely new. In Manacop v. Court of Appeals, 5 petitioner himself as a
party therein raised a similar question of whether this very same property was
exempt from preliminary attachment for the same excuse that it was his family
home. In said case, F.F. Cruz & Co., Inc. filed a complaint for a sum of money. As
an incident in the proceedings before it, the trial court issued a writ of attachment
on the said house and lot. In upholding the trial court (and the Court of Appeals)
in that case, we ruled that petitioner incurred the indebtedness in 1987 or prior to
the effectivity of the Family Code on August 3, 1988. Hence, petitioner's family
home was not exempt from attachment "by sheer force of exclusion embodied in
paragraph 2, Article 155 of the Family Code cited in Modequillo," where the Court
categorically ruled:
"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) For nonpayment of taxes;
(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises before or
after such constitution; and

(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).
prcd

The contention of petitioner that it should be considered a family home

from the time it was occupied by petitioner and his family in 1960 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." 6 (Emphasis supplied.)

Article 153 of the Family Code

Has No Retroactive Effect
Petitioner contends that the trial court erred in holding that his residence was not
exempt from execution in view of his failure to show that the property involved
"has been duly constituted as a family home in accordance with law." He asserts
that the Family Code and Modequillorequire simply the occupancy of the property
by the petitioner, without need for its judicial or extrajudicial constitution as a
family home. 7
Petitioner is only partly correct. True, under the Family Code which took effect on
August 3, 1988, 8 the subject property became his family home under the
simplified process embodied in Article 153 of said Code. However, Modequillo
explicitly ruled that said provision of the Family Code does not have retroactive
effect. In other words, prior to August 3, 1988, the procedure mandated by the
Civil Code 9 had to be followed for a family home to be constituted as such.
There being absolutely no proof that the subject property was judicially or
extrajudicially constituted as a family home, it follows that the law's protective
mantle cannot be availed of by petitioner. Since the debt involved herein was
incurred and the assailed orders of the trial court issued prior to August 3, 1988,
the petitioner cannot be shielded by the benevolent provisions of the Family
Code.
List of Beneficiary-Occupants Restricted
to Those Enumerated in the Code
In view of the foregoing discussion, there is no reason to address the other
arguments of petitioner other than to correct his misconception of the law.
Petitioner contends that he should be deemed residing in the family home
because his stay in the United States is merely temporary. He asserts that the
person staying in the house is his overseer and that whenever his wife visited this
country, she stayed in the family home. This contention lacks merit.

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. 10Actual occupancy, however,
need not be by the owner of the house specifically. Rather, the property may be
occupied by the "beneficiaries" enumerated by Article 154 of the Family Code.
"Art. 154. The beneficiaries of a family home are:
(1) The husband and wife, or an unmarried person who is the head of
the 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 lead
support."

This enumeration may include the in-laws where the family home is constituted
jointly by the husband and wife. 11 But the law definitely excludes maids and
overseers. They are not the beneficiaries contemplated by the Code.
Consequently, occupancy of a family home by an overseer like Carmencita V.
Abat in this case 12 is insufficient compliance with the law.
cdasia

WHEREFORE, the petition is hereby DENIED for utter lack of merit. This
Decision is immediately executory. Double costs against petitioner.
SO ORDERED.
Narvasa, C .J ., Davide, Jr., Melo, and Francisco, JJ ., concur.
|||

(Manacop v. Court of Appeals, G.R. No. 97898, [August 11, 1997], 342 PHIL
735-744)

THIRD DIVISION
[G.R. No. 177703. January 28, 2008.]
VILMA G. ARRIOLA and ANTHONY RONALD G.
ARRIOLA,petitioners, vs. JOHN NABOR C.
ARRIOLA, respondent.
DECISION
AUSTRIA-MARTINEZ, J :
p

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules
of Court, assailing the November 30, 2006 Decision 1 and April 30, 2007
Resolution 2 of the Court of Appeals in CA-G.R. SP No. 93570.
The relevant facts are culled from the records.
John Nabor C. Arriola (respondent) filed Special Civil Action No. 03-0010 with the
Regional Trial Court, Branch 254, Las Pias City (RTC) against Vilma G. Arriola
and Anthony Ronald G. Arriola (petitioners) for judicial partition of the properties
of decedent Fidel Arriola (the decedent Fidel). Respondent is the son of decedent
Fidel with his first wife Victoria C. Calabia, while petitioner Anthony is the son of
decedent Fidel with his second wife, petitioner Vilma.
On February 16, 2004, the RTC rendered a Decision, the dispositive portion of
which reads:
WHEREFORE, premises considered, judgment is hereby rendered:
1. Ordering the partition of the parcel of land covered by Transfer
Certificate of Title No. 383714 (84191) left by the decedent Fidel S.
Arriola by and among his heirs John Nabor C. Arriola, Vilma G. Arriola
and Anthony Ronald G. Arriola in equal shares of one-third (1/3) each
without prejudice to the rights of creditors or mortgagees thereon, if any;

2. Attorney's fees in the amount of TEN THOUSAND (P10,000.00)

PESOS is hereby awarded to be reimbursed by the defendants to the
plaintiff;
3. Costs against the defendants.
SO ORDERED. 3

The decision became final on March 15, 2004. 4

As the parties failed to agree on how to partition among them the land covered by
TCT No. 383714 (subject land), respondent sought its sale through public
auction, and petitioners acceded to it. 5 Accordingly, the RTC ordered the public
auction of the subject land. 6 The public auction sale was scheduled on May 31,
2003 but it had to be reset when petitioners refused to include in the auction the
house (subject house) standing on the subject land. 7 This prompted respondent
to file with the RTC an Urgent Manifestation and Motion for Contempt of
Court, 8 praying that petitioners be declared in contempt.
The RTC denied the motion in an Order 9 dated August 30, 2005, for the reason
that petitioners were justified in refusing to have the subject house included in the
auction, thus:
The defendants [petitioners] are correct in holding that the house or
improvement erected on the property should not be included in the
auction sale.
A cursory reading of the aforementioned Decision and of the evidence
adduced during the ex-parte hearing clearly show that nothing was
mentioned about the house existing on the land subject matter of the
case. In fact, even plaintiff's [respondent's] initiatory Complaint likewise
did not mention anything about the house. Undoubtedly therefore, the
Court did not include the house in its adjudication of the subject land
because it was plaintiff himself who failed to allege the same. It is a wellsettled rule that the court can not give a relief to that which is not alleged
and prayed for in the complaint.
To hold, as plaintiff argued, that the house is considered accessory to
the land on which it is built is in effect to add to plaintiff's [a] right which
has never been considered or passed upon during the trial on the merits.

In the absence of any other declaration, obvious or otherwise, only the

land should be partitioned in accordance to [sic] the aforementioned
Decision as the house can not be said to have been necessarily
adjudicated therein. Thus, plaintiff can not be declared as a co-owner of
the same house without evidence thereof and due hearing thereon.
The Decision of the Court having attained its finality, as correctly pointed
out, judgment must stand even at the risk that it might be erroneous.
WHEREFORE, the Urgent Manifestation and Motion for Contempt of
Court filed by plaintiff is hereby DENIED for lack of merit.
SO ORDERED. 10

The RTC, in its Order dated January 3, 2006, denied respondent's Motion for
Reconsideration. 11
Respondent filed with the CA a Petition for Certiorari 12 where he sought to have
the RTC Orders set aside, and prayed that he be allowed to proceed with the
auction of the subject land including the subject house.
In its November 30, 2006 Decision, the CA granted the Petition for Certiorari, to
wit:
WHEREFORE, the petition is GRANTED. The assailed orders dated
August 30, 2005 and January 3, 2006 issued by the RTC, in Civil Case
No. SCA 03-0010, are REVERSED and SET ASIDE, and the sheriff is
ordered to proceed with the public auction sale of the subject lot
covered by TCT No. 383714, including the house constructed
thereon.
SO ORDERED. 13 (Emphasis supplied.)

Petitioners filed a motion for reconsideration but the CA denied the same in its
Resolution 14 of April 30, 2007.
Hence, the present petition on the sole ground that the CA erred in holding that
the RTC committed grave abuse of discretion in denying the motion for contempt
of court.

The assailed CA Decision and Resolution must be modified for reasons other
than those advanced by petitioners.
The contempt proceeding initiated by respondent was one for indirect contempt.
Section 4, Rule 71 of the Rules of Court prescribes the procedure for the
institution of proceedings for indirect contempt, viz:
Sec. 4. How proceedings commenced. Proceedings for indirect
contempt may be initiated motu proprio by the court against which the
contempt was committed by an order or any other formal charge
requiring the respondent to show cause why he should not be punished
for contempt.
In all other cases, charges for indirect contempt shall be
commenced by a verified petition with supporting particulars and
certified true copies of documents or papers involved therein, and
upon full compliance with the requirements for filing initiatory
pleadings for civil actions in the court concerned. If the contempt
charges arose out of or are related to a principal action pending in the
court, the petition for contempt shall allege that fact but said petition shall
be docketed, heard and decided separately, unless the court in its
discretion orders the consolidation of the contempt charge and the
principal action for joint hearing and decision. (Emphases supplied.)

Under the aforecited second paragraph of the Rules, the requirements for
initiating an indirect contempt proceeding are a) that it be initiated by way of a
verified petition and b) that it should fully comply with the requirements for filing
initiatory pleadings for civil actions. In Regalado v. Go, 15 we held:
As explained by Justice Florenz Regalado, the filing of a verified
petition that has complied with the requirements for the filing of
initiatory pleading, is mandatory . . .:
This new provision clarifies with a regularity norm the proper
procedure for commencing contempt proceedings. While such
proceeding has been classified as special civil action under the
former Rules, the heterogenous practice tolerated by the courts,
has been for any party to file a motion without paying any docket
or lawful fees therefore and without complying with the

requirements for initiatory pleadings, which is now required in the

second paragraph of this amended section.
xxx xxx xxx
Henceforth, except for indirect contempt proceedings
initiated motu propio by order of or a formal charge by the
offended court, all charges shall be commenced by a verified
petition with full compliance with the requirements therefore and
shall be disposed in accordance with the second paragraph of this
section.
xxx xxx xxx
Even if the contempt proceedings stemmed from the main
case over which the court already acquired jurisdiction, the
rules direct that the petition for contempt be treated
independently of the principal action. Consequently, the
necessary prerequisites for the filing of initiatory pleadings,
such as the filing of a verified petition, attachment of a
certification on non-forum shopping, and the payment of the
necessary docket fees, must be faithfully observed.
xxx xxx xxx
The provisions of the Rules are worded in very clear and categorical
language. In case where the indirect contempt charge is not initiated by
the courts, the filing of a verified petition which fulfills the requirements
on initiatory pleadings is a prerequisite. Beyond question now is the
mandatory requirement of a verified petition in initiating an indirect
contempt proceeding. Truly, prior to the amendment of the 1997 Rules of
Civil Procedure, mere motion without complying with the requirements
for initiatory pleadings was tolerated by the courts. At the onset of the
1997 Revised Rules of Civil Procedure, however, such practice can no
longer be countenanced. 16 (Emphasis ours.)

The RTC erred in taking jurisdiction over the indirect contempt proceeding
initiated by respondent. The latter did not comply with any of the mandatory
requirements of Section 4, Rule 71. He filed a mere Urgent Manifestation and
Motion for Contempt of Court, and not a verified petition. He likewise did not
conform with the requirements for the filing of initiatory pleadings such as the

submission of a certification against forum shopping and the payment of docket

fees. Thus, his unverified motion should have been dismissed outright by the
RTC.
It is noted though that, while at first the RTC overlooked the infirmities in
respondent's unverified motion for contempt, in the end, it dismissed the motion,
albeit on substantive grounds. The trouble is that, in the CA decision assailed
herein, the appellate court committed the same oversight by delving into the
merits of respondent's unverified motion and granting the relief sought therein.
Thus, strictly speaking, the proper disposition of the present petition ought to be
the reversal of the CA decision and the dismissal of respondent's unverified
motion for contempt filed in the RTC for being in contravention of Section 4, Rule
71.

However, such simplistic disposition will not put an end to the dispute between
the parties. A seed of litigation has already been sown that will likely sprout into
another case between them at a later time. We refer to the question of whether
the subject house should be included in the public auction of the subject land.
Until this question is finally resolved, there will be no end to litigation between the
parties. We must therefore deal with it squarely, here and now.
The RTC and the CA differed in their views on whether the public auction should
include the subject house. The RTC excluded the subject house because
respondent never alleged its existence in his complaint for partition or established
his co-ownership thereof. 17 On the other hand, citing Articles 440, 18 445 19 and
446 20 of the Civil Code, the CA held that as the deceased owned the subject
land, he also owned the subject house which is a mere accessory to the land.
Both properties form part of the estate of the deceased and are held in coownership by his heirs, the parties herein. Hence, the CA concludes that any
decision in the action for partition of said estate should cover not just the subject
land but also the subject house. 21The CA further pointed out that petitioners
themselves implicitly recognized the inclusion of the subject house in the partition
of the subject land when they proposed in their letter of August 5, 2004, the
following swapping-arrangement:

Sir:
Thank you very much for accommodating us even if we are only poor
and simple people. We are very much pleased with the decision of
Presiding Judge Manuel B. Fernandez, Jr., RTC Br. 254, Las Pias, on
the sharing of one-third (1/3) each of a land covered by Transfer
Certificate of Title No. 383714 (84191) in Las Pias City.
However, to preserve the sanctity of our house which is our residence for
more than twenty (20) years, we wish to request that the 1/3 share of
John Nabor C. Arriola be paid by the defendants depending on the
choice of the plaintiff between item (1) or item (2), detailed as follows:
(1) Swap with a 500-square meters [sic] lot located at Baras Rizal . . . .
(2) Cash of P205,700.00 . . . .
xxx xxx xxx 22

We agree that the subject house is covered by the judgment of partition for
reasons postulated by the CA. We qualify, however, that this ruling does not
necessarily countenance the immediate and actual partition of the subject house
by way of public auction in view of the suspensive proscription imposed under
Article 159 of The Family Code which will be discussed forthwith.
It is true that the existence of the subject house was not specifically alleged in the
complaint for partition. Such omission notwithstanding, the subject house is
deemed part of the judgment of partition for two compelling reasons.
First, as correctly held by the CA, under the provisions of the Civil Code, the
subject house is deemed part of the subject land. The Court quotes with approval
the ruling of the CA, to wit:
The RTC, in the assailed Order dated August 30, 2005 ratiocinated that
since the house constructed on the subject lot was not alleged in the
complaint and its ownership was not passed upon during the trial on the
merits, the court cannot include the house in its adjudication of the
subject lot. The court further stated that it cannot give a relief to [sic]
which is not alleged and prayed for in the complaint.
We are not persuaded.

To follow the foregoing reasoning of the RTC will in effect render

meaningless the pertinent rule on accession. In general, the right to
accession is automatic (ipso jure), requiring no prior act on the part
of the owner or the principal. So that even if the improvements
including the house were not alleged in the complaint for partition,
they are deemed included in the lot on which they stand, following
the principle of accession. Consequently, the lot subject of judicial
partition in this case includes the house which is permanently
attached thereto, otherwise, it would be absurd to divide the
principal, i.e., the lot, without dividing the house which is
permanently attached thereto. 23 (Emphasis supplied)

Second, respondent has repeatedly claimed that the subject house was built by
the deceased. 24 Petitioners never controverted such claim. There is then no
dispute that the subject house is part of the estate of the deceased; as such, it is
owned in common by the latter's heirs, the parties herein, 25 any one of whom,
under Article 494 26 of the Civil Code, may, at any time, demand the partition of
the subject house. 27 Therefore, respondent's recourse to the partition of the
subject house cannot be hindered, least of all by the mere technical omission of
said common property from the complaint for partition.
That said notwithstanding, we must emphasize that, while we treat the
subject house as part of the co-ownership of the parties, we stop short of
authorizing its actual partition by public auction at this time. It bears
emphasis that an action for partition involves two phases: first, the declaration of
the existence of a state of co-ownership; and second, the actual termination of
that state of co-ownership through the segregation of the common
property. 28 What is settled thus far is only the fact that the subject house is under
the co-ownership of the parties, and therefore susceptible of partition among
them.
Whether the subject house should be sold at public auction as ordered by the
RTC is an entirely different matter, depending on the exact nature of the subject
house.
Respondent claims that the subject house was built by decedent Fidel on his
exclusive property. 29 Petitioners add that said house has been their residence

for 20 years. 30 Taken together, these averments on record establish that the
subject house is a family home within the contemplation of the provisions of The
Family Code, particularly:
Article 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.
Article 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. (Emphasis supplied.)

One significant innovation introduced by The Family Code is the automatic

constitution of the family home from the time of its occupation as a family
residence, without need anymore for the judicial or extrajudicial processes
provided under the defunct Articles 224 to 251 of the Civil Code and Rule 106 of
the Rules of Court. Furthermore, Articles 152 and 153 specifically extend the
scope of the family home not just to the dwelling structure in which the family
resides but also to the lot on which it stands. Thus, applying these concepts, the
subject house as well as the specific portion of the subject land on which it
stands are deemed constituted as a family home by the deceased and petitioner
Vilma from the moment they began occupying the same as a family residence 20
years back. 31
It being settled that the subject house (and the subject lot on which it stands) is
the family home of the deceased and his heirs, the same is shielded from
immediate partition under Article 159 of The Family Code, viz:
Article 159. 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 ten
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. (Emphasis supplied.)

The purpose of Article 159 is to avert the disintegration of the family unit following
the death of its head. To this end, it preserves the family home as the physical
symbol of family love, security and unity by imposing the following restrictions on
its partition: first, that the heirs cannot extra-judicially partition it for a period of 10
years from the death of one or both spouses or of the unmarried head of the
family, or for a longer period, if there is still a minor beneficiary residing therein;
and second, that the heirs cannot judicially partition it during the aforesaid
periods unless the court finds compelling reasons therefor. No compelling reason
has been alleged by the parties; nor has the RTC found any compelling reason to
order the partition of the family home, either by physical segregation or
assignment to any of the heirs or through auction sale as suggested by the
parties.
More importantly, Article 159 imposes the proscription against the immediate
partition of the family home regardless of its ownership. This signifies that even if
the family home has passed by succession to the co-ownership of the heirs, or
has been willed to any one of them, this fact alone cannot transform the family
home into an ordinary property, much less dispel the protection cast upon it by
the law. The rights of the individual co-owner or owner of the family home cannot
subjugate the rights granted under Article 159 to the beneficiaries of the family
home.
Set against the foregoing rules, the family home consisting of the subject
house and lot on which it stands cannot be partitioned at this time, even if it
has passed to the co-ownership of his heirs, the parties herein. Decedent Fidel
died on March 10, 2003. 32 Thus, for 10 years from said date or until March 10,
2013, or for a longer period, if there is still a minor beneficiary residing therein,
the family home he constituted cannot be partitioned, much less when no
compelling reason exists for the court to otherwise set aside the restriction and
order the partition of the property.

The Court ruled in Honrado v. Court of Appeals 33 that a claim for exception from
execution or forced sale under Article 153 should be set up and proved to the

Sheriff before the sale of the property at public auction. Herein petitioners timely
objected to the inclusion of the subject house although for a different reason.
To recapitulate, the evidence of record sustain the CA ruling that the subject
house is part of the judgment of co-ownership and partition. The same evidence
also establishes that the subject house and the portion of the subject land on
which it is standing have been constituted as the family home of decedent Fidel
and his heirs. Consequently, its actual and immediate partition cannot be
sanctioned until the lapse of a period of 10 years from the death of Fidel Arriola,
or until March 10, 2013.
It bears emphasis, however, that in the meantime, there is no obstacle to the
immediate public auction of the portion of the subject land covered by TCT No.
383714, which falls outside the specific area of the family home.
WHEREFORE, the petition is PARTLY GRANTED and the November 30, 2006
Decision and April 30, 2007 Resolution of the Court of Appeals are MODIFIED in
that the house standing on the land covered by Transfer Certificate of Title No.
383714 is DECLARED part of the co-ownership of the parties John Nabor C.
Arriola, Vilma G. Arriola and Anthony Ronald G. Arriola but EXEMPTED from
partition by public auction within the period provided for in Article 159 of the
Family Code.
No costs.
SO ORDERED.
Ynares-Santiago, Corona, * Nachura and Reyes, JJ., concur.
|||

(Arriola v. Arriola, G.R. No. 177703, [January 28, 2008], 566 PHIL 654-670)

FIRST DIVISION
[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.
DECISION
YNARES-SANTIAGO, J :
p

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,
2005 1 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. RT30731 (175992) was cancelled and TCT No. R-213963 was issued in the names
of petitioner, private respondent and Marcelino Marc.
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
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.
aScIAC

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.
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.
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, 8hence there is no
more minor beneficiary to speak of.
The family home is a sacred symbol of family love and is the repository of
cherished memories that last during one's 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
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
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.
ADHcTE

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.
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.
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:

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 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 minor-beneficiary, 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.
CIcTAE

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 respondent's 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 IV's 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
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.
EHTIDA

There is no showing that private respondent is without means to support his son;
neither is there any evidence to prove that petitioner, as the paternal
grandmother, was willing to voluntarily provide for her grandson's legal support.
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 one-half 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 co-ownership and for segregation and
conveyance of a determinate portion of the properties involved. If the court after
trial should find the existence of co-ownership among the parties, the court may
and should order the partition of the properties in the same action. 24
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.
SDHETI

SO ORDERED.
Panganiban, C.J., Austria-Martinez, Callejo, Sr. and Chico-Nazario, JJ.,
|||

(Patricio v. Dario III, G.R. No. 170829, [November 20, 2006], 537 PHIL 595610)

THIRD DIVISION
[G.R. No. 185920. July 20, 2010.]
JUANITA TRINIDAD RAMOS, ALMA RAMOS WORAK, MANUEL
T. RAMOS, JOSEFINA R. ROTHMAN, SONIA R. POST, ELVIRA
P. MUNAR, and OFELIA R. LIM, petitioners, vs. DANILO
PANGILINAN, RODOLFO SUMANG, LUCRECIO BAUTISTA and
ROLANDO ANTENOR, respondents.
DECISION
CARPIO MORALES, J :
p

Respondents filed in 2003 a complaint 1 for illegal dismissal against

E.M. Ramos Electric, Inc., a company owned by Ernesto M. Ramos (Ramos),
the patriarch of herein petitioners. By Decision 2 of April 15, 2005, the Labor
Arbiter ruled in favor of respondents and ordered Ramos and the company to
pay the aggregate amount of P1,661,490.30representing their backwages,
separation pay, 13th month pay & service incentive leave pay.
The Decision having become final and executory and no settlement
having been forged by the parties, the Labor Arbiter issued on September 8,
2005 a writ of execution 3 which the Deputy Sheriff of the National Labor
Relations Commission (NLRC) implemented by levying a property in Ramos'
name covered by TCT No. 38978, situated in Pandacan, Manila (Pandacan
property).
Alleging that the Pandacan property was the family home, hence,
exempt from execution to satisfy the judgment award, Ramos and the
company moved to quash the writ of execution. 4 Respondents, however,
averred that the Pandacan property is not the Ramos family home, as it has
another in Antipolo, and the Pandacan property in fact served as the

company's business address as borne by the company's letterhead.

Respondents added that, assuming that the Pandacan property was indeed
the family home, only the value equivalent to P300,000 was exempt from
execution.
By Order 5 of August 2, 2006, the Labor Arbiter denied the motion to
quash, hence, Ramos and the company appealed to the NLRC which affirmed
the Labor Arbiter's Order.
Ramos and the company appealed to the Court of Appeals during the
pendency of which Ramos died and was substituted by herein petitioners.
Petitioners also filed before the NLRC, as third-party claimants, a
Manifestation questioning the Notice to Vacate issued by the Sheriff, alleging
that assuming that the Pandacan property may be levied upon, the family
home straddled two (2) lots, including the lot covered by TCT No. 38978,
hence, they cannot be asked to vacate the house. The Labor Arbiter was later
to deny, by Decision of May 7, 2009, the third-party claim, holding that Ramos'
death and petitioners' substitution as his compulsory heirs would not nullify
the sale at auction of the Pandacan property. And the NLRC 6 would later
affirm the Labor Arbiter's ruling, noting that petitioners failed to exercise their
right to redeem the Pandacan property within the one (1) year period or until
January 16, 2009. The NLRC brushed aside petitioners' contention that they
should have been given a fresh period of 1 year from the time of Ramos'
death on July 29, 2008 or until July 30, 2009 to redeem the property, holding
that to do so would give petitioners, as mere heirs, a better right than the
Ramos'.
aIAEcD

As to petitioners' claim that the property was covered by the regime of

conjugal partnership of gains and as such only Ramos' share can be levied
upon, the NLRC ruled that petitioners failed to substantiate such claim and
that the phrase in the TCT indicating the registered owner as "Ernesto Ramos,
married to Juanita Trinidad, Filipinos," did not mean that both owned the
property, the phrase having merely described Ramos' civil status.
Before the appellate court, petitioners alleged that the NLRC erred in
ruling that the market value of the property was P2,177,000 as assessed by
the City Assessor of Manila and appearing in the documents submitted before

the Labor Arbiter, claiming that at the time the Pandacan property was
constituted as the family home in 1944, its value was way below P300,000;
and that Art. 153 of the Family Code was applicable, hence, they no longer
had to resort to judicial or extrajudicial constitution.
In the assailed Decision 7 of September 24, 2008, the appellate court,
in denying petitioners' appeal, held that the Pandacan property was not
exempted from execution, for while "Article 153 8 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] did not mean that the article has 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."
The appellate court went on to hold that what was applicable law were
Articles 224 to 251 of the Civil Code, hence, there was still a need to either
judicially or extrajudicially constitute the Pandacan property as petitioners'
family home before it can be exempted; and as petitioners failed to comply
therewith, there was no error in denying the motion to quash the writ of
execution.
The only question raised in the present petition for review oncertiorari is
the propriety of the Court of Appeals Decision holding that the levy upon the
Pandacan property was valid.
The petition is devoid of merit.
Indeed, the general rule is that the family home is a real right which is
gratuitous, inalienable and free from attachment, constituted over the dwelling
place and the land on which it is situated, which confers upon a particular
family the right to enjoy such properties, which must remain with the person
constituting it and his heirs. It cannot be seized by creditors except in certain
special cases. 9
Kelley, Jr. v. Planters Products, Inc. 10 lays down the rules relative to the
levy on execution over the family home, viz.:
SCaITA

No doubt, a family home is generally exempt from execution provided it

was duly constituted as such. There must be proof that the alleged

family home was constituted jointly by the husband and wife or by

an unmarried head of a family. It must be the house where they and
their family actually reside and the lot on which it is situated. The
family home must be part of the properties of the absolute
community or the conjugal partnership, or of the exclusive
properties of either spouse with the latter's consent, or on the
property of the unmarried head of the family. The actual value of the
family home shall not exceed, at the time of its constitution, the
amount of P300,000 in urban areas and P200,000 in rural areas.
Under the Family Code, there is no need to constitute the family
home judicially or extrajudicially. All family homes constructed
after the effectivity of the Family Code (August 3, 1988) are
constituted as such by operation of law. All existing family residences
as of August 3, 1988 are considered family homes and
are prospectively entitled to the benefits accorded to a family home
under the Family Code.
The exemption is effective from the time of the constitution of the
family home as such and lasts as long as any of its beneficiaries
actually resides therein. Moreover, the debts for which the family home
is made answerable must have been incurred after August 3,
1988. Otherwise (that is, if it was incurred prior to August 3, 1988),
the alleged family home must be shown to have been constituted
either judicially or extrajudicially pursuant to the Civil Code.
(emphasis supplied)

For the family home to be exempt from execution, distinction must be

made as to what law applies based on when it was constituted and what
requirements must be complied with by the judgment debtor or his successors
claiming such privilege. Hence, two sets of rules are applicable.
If the family home was constructed before the effectivity of the Family
Code or before August 3, 1988, then it must have been constituted either
judicially or extra-judicially as provided under Articles 225, 229-231 and
233 of the Civil Code. 11 Judicial constitution of the family home requires the
filing of a verified petition before the courts and the registration of the court's
order with the Registry of Deeds of the area where the property is located.

Meanwhile, extrajudicial constitution is governed by Articles 240 to 242 12 of

the Civil Code and involves the execution of a public instrument which must
also be registered with the Registry of Property. Failure to comply with either
one of these two modes of constitution will bar a judgment debtor from
availing of the privilege.
On the other hand, for family homes constructed after the effectivity of
the Family Code on August 3, 1988, there is no need to constitute
extrajudicially or judicially, and the exemption is effective from the time it
was constituted and lasts as long as any of its beneficiaries under Art.
154 13 actually resides therein. Moreover, the family home should belong to
the absolute community or conjugal partnership, or if exclusively by one
spouse, its constitution must have been with consent of the other, and its
value must not exceed certain amounts depending upon the area where it is
located. Further, the debts incurred for which the exemption does not apply as
provided under Art. 155 14 for which the family home is made answerable
must have been incurred after August 3, 1988.
IDCHTE

And in both cases, whether under the Civil Code or the Family Code, it
is not sufficient that the person claiming exemption merely alleges that such
property is a family home. This claim for exemption must be set up and
proved. 15
In the present case, since petitioners claim that the family home was
constituted prior to August 3, 1988, or as early as 1944, they must comply with
the procedure mandated by the Civil Code. There being absolutely no proof
that the Pandacan property was judicially or extrajudicially constituted as the
Ramos' family home, the law's protective mantle cannot be availed of by
petitioners. Parenthetically, the records show that the sheriff exhausted all
means to execute the judgment but failed because Ramos' bank
accounts 16 were already closed while other properties in his or the
company's name had already been transferred, 17and the only property left
was the Pandacan property.
WHEREFORE, the petition is DENIED. SO ORDERED.

THIRD DIVISION
[G.R. No. 124814. October 21, 2004.]
CAMELO CABATANIA, petitioner, vs. COURT OF APPEALS and
CAMELO REGODOS, respondents.
DECISION
CORONA, J :
p

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 petitioner's 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 petitioner's 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, petitioner's 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
aunt's house in Tiglawigan, Cadiz City, she gave birth to her child, private
respondent Camelo Regodos.
DSETcC

Petitioner Camelo Cabatania's 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 petitioner's wife, hence she was told to look for another
job.
In the meantime, Florencia asked permission from petitioner to go home and
spend New Year's 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 some 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
petitioner's house hoping to be re-employed as a servant there. Since petitioner's
wife was in need of one, she was re-hired. However petitioner's wife noticed that
her stomach was bulging and inquired about the father of the unborn child. She
told petitioner's 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
Florencia's 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 there can
never be a doubt that the plaintiff-minor is the child of the defendant with
plaintiff-minor's mother, Florencia Regodos.
xxx xxx 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 plaintiffminor's 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").
acADIT

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 court's findings.
WHEREFORE, the appealed decision is AFFIRMED. 3

Hence this petition which assigns the following errors:

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;
B. THE COURT OF APPEALS ERRED IN ITS DECISION BASED
ON THE EVIDENCE ADDUCED BY RESPONDENT
CAMELO REGODOS BEFORE THE TRIAL COURT. 4
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 court's finding of a paternal relationship between petitioner and private
respondent was based on the testimony of the child's 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:
(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.
SAcaDE

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.
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 child's 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 Florencia's self-serving testimony that petitioner rented a house for
her in Singcang, Bacolod City, private respondent failed to present sufficient proof
of voluntary recognition.
We now proceed to the credibility of Florencia's testimony. Both the trial court and
the appellate court brushed aside the misrepresentation of Florencia in the
petition for recognition that she was a widow. Both courts dismissed the lie as
minor which did not affect the rest of her testimony. We disagree. The fact that
Florencia's 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 respondent's petition for recognition and
support is dismissed.
aHICDc

SO ORDERED.

THIRD DIVISION
[G.R. No. 123450. August 31, 2005.]
GERARDO B. CONCEPCION, petitioner, vs. COURT OF
APPEALS and MA. THERESA ALMONTE, respondents.
Juan Orendain P. Buted for petitioner.
Stephen L. Monsanto for private respondent.
DECISION
CORONA, J :
p

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 their marriage, they lived with Ma.
Theresa's 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. Theresa's 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. Theresa's 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 Gerardo's surname should be changed from Concepcion to
Almonte, her maiden name, following the rule that an illegitimate child shall use
the mother's surname.
Gerardo opposed the motion. He insisted on his visitation rights and the retention
of 'Concepcion' as Jose Gerardo's surname.
Applying the "best interest of the child" principle, the trial court denied Ma.
Theresa's 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 recognize something 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 respondent's 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 Gerardo's 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 child's 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
mother's 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.
EHSAaD

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, undeniable established by the evidence in this case

that 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
Gerardo under the law is 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 rapprochement
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 Gerardo's
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 movant's 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." (underscoring 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 one's 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 child 21 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
ofCabatania 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. Theresa's
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.
DHAcET

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 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. Theresa's statement in her answer 35 to the petition for
annulment of marriage 36 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.
Gerardo's argument is without merit.
First, the import of Ma. Theresa's statement is that Jose Gerardo is not her
legitimate son with Mario but her illegitimate son with Gerardo. This declaration
an avowal by the mother that her child is illegitimate is 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 Gerardo's 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. Theresa's 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
Gerardo's 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

Gerardo's 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.
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 Gerardo's 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
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 isprima facie evidence of Jose
Gerardo's 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 Gerardo's illegitimacy while claiming that they both had the child's 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 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 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.
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 person's 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 Gerardo's 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 other's 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:
Article 8. Child's 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

significant where, as in this case, the issue concerns their filiation as it strikes at
their very identity and lineage.
ADEaHT

WHEREFORE, the petition is hereby DENIED. The September 14, 1995 and
January 10, 1996 resolutions of the Court of Appeals in CA-G.R. CV No. 40651
are hereby AFFIRMED.
Costs against petitioner.
SO ORDERED.
Panganiban, Sandoval-Gutierrez and Garcia, JJ., concur.
Carpio Morales, J., took no part.
|||

(Concepcion v. Court of Appeals, G.R. No. 123450, [August 31, 2005], 505
PHIL 529-546)

SECOND DIVISION
[G.R. No. 138961. March 7, 2002.]
WILLIAM LIYAO, JR., represented by his mother Corazon
Garcia, petitioner, vs. JUANITA TANHOTI-LIYAO, PEARL
MARGARET L. TAN, TITA ROSE L. TAN AND LINDA
CHRISTINA LIYAO, respondents.
Castillo & Poblador for petitioner.
Quisumbing Ignacio Guia & Lambino Law Offices for respondents.
SYNOPSIS
Petitioner, represented by his mother Corazon Garcia, filed an action for
compulsory recognition as the illegitimate son of the late William Liyao. Allegedly,
Corazon is legally married to but living separately from Ramon Yulo, that Corazon
cohabited with the late William Liyao where a child, herein petitioner, was then
conceived and born. The issue is may petitioner impugn his own legitimacy to be
able to claim from the estate of his supposed father, William Liyao?
The Court ruled in the negative. The fact that Corazon had been living separately
from her husband at the time petitioner was conceived and born is of no moment.
Physical impossibility for the husband to have sexual intercourse with his wife, as
a ground for impugning the legitimacy of the child, may only be invoked by the
husband or in proper cases, his heirs. The petition initiated by Corazon 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. The settled rule is 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. Petition was
denied.

DECISION
DE LEON, JR., J :
p

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. 45394 1 which reversed the
decision of the Regional Trial Court (RTC) of Pasig, Metro Manila, Branch 167 in
declaring William Liyao, Jr. as the illegitimate (spurious) son of the deceased
William Liyao and ordering Juanita 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 167 which is
an action for compulsory recognition as "the illegitimate (spurious) child of the
late William Liyao" against herein respondents, Juanita Tanhoti-Liyao, Pearl
Margaret L. Tan, Tita Rose L. Tan and Linda Christina Liyao. 2 The complaint was
later amended to include the allegation that petitioner "was in continuous
possession and enjoyment of the status of the child of said William
Liyao," petitioner having been "recognized and acknowledged as such child by
the decedent during his lifetime." 3
The facts as alleged by petitioner are as follows:
Corazon G. Garcia is legally married to but living separately from Ramon M. Yulo
for more than ten (10) years at the time of the institution of the said civil case.
Corazon cohabited with the late William Liyao from 1965 up to the time of

William's untimely demise on December 2, 1975. They lived together in the

company of Corazon's 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 Liyao's
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.
IcTCHD

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 Billy's 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 Billy's godfather, Fr. Julian Ruiz,
William Liyao's 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 Liyao's 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 latter's direct and
overt acts. William Liyao supported Billy and paid for his food, clothing and other
material needs. However, after William Liyao's death, it was Corazon who
provided sole support to Billy and took care of his tuition fees at La Salle,
Greenhills. William Liyao left his personal belongings, collections, clothing, old
newspaper clippings and laminations at the house in White Plains where he
shared his last moments with Corazon.
Testifying for the petitioner, Maurita Pasion declared that she knew both Corazon
G. Garcia and William Liyao who were godparents to her children. She used to
visit Corazon and William Liyao from 1965-1975. The two children of Corazon
from her marriage to Ramon Yulo, namely, Bernadette and Enrique (Ike), together
with some housemaids lived with Corazon and William Liyao as one family. On
some occasions like birthdays or some other celebrations, Maurita would sleep in
the couple's 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 Liyao's birthday on November 22, 1975 held at the
Republic Supermarket Office, he was carrying Billy and told everybody present,
including his two (2) daughters from his legal marriage,"Look, this is my son, very
guapo and healthy." 10 He then talked about his plan for the baptism of Billy
before Christmas. He intended to make it"engrande" and "make the bells of San
Sebastian Church ring." 11Unfortunately, this did not happen since William Liyao
passed away on December 2, 1975. Maurita attended Mr. Liyao's 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 mother's 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 Corazon's 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 latter's death on December 2, 1975. Mr. Liyao was very supportive
and fond of Enrique's half brother, Billy. He identified several pictures showing Mr.
Liyao carrying Billy at the house as well as in the office. Enrique's 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 people's homes.
Linda described him as very conservative and a strict disciplinarian. He believed
that no amount of success would compensate for failure of a home. As a
businessman, he was very tough, strong, fought for what he believed in and did
not give up easily. He suffered two strokes before the fatal attack which led to his
death on December 2, 1975. He suffered a stroke at the office sometime in AprilMay 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 Linda's
father, Corazon went to Linda's office for the return of the former's 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 vicepresident 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 men's 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 father's death on December 2, 1975. 19 Her father
suffered two (2) minor cardio-vascular arrests (CVA) prior to his death. During the
first heart attack sometime between April and May 1974, his speech and hands
were affected and he had to stay home for two (2) to three (3) months under strict
medication, taking aldomet, serpadil and cifromet which were prescribed by Dr.
Bonifacio Yap, for high blood pressure and cholesterol level control. 20 Tita Rose
testified that after the death of Mr. Liyao, Corazon Garcia was paid the amount of
One Hundred Thousand Pesos (P100,000.00) representing her investment in the
Far East Realty Investment Inc. Tita Rose also stated that her family never
received any formal demand that they recognize a certain William Liyao, Jr. as an
illegitimate son of her father, William Liyao. After assuming the position of
President of the company, Tita Rose did not come across any check signed by
her late father representing payment to lessors as rentals for the house occupied
by Corazon Garcia. Tita Rose added that the laminated photographs presented
by Corazon Garcia are the personal collection of the deceased which were
displayed at the latter's 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 o'clock in the
morning. At past 7:00 o'clock 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. Liyao's
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 latter's law office. Being the driver of Mr. Liyao for a number of
years, Pineda said that he remembered having driven the group of Mr. Liyao,
Atty. Astraquillo, Atty. Brillantes, Atty. Magno and Atty. Laguio to Baguio for a
vacation together with the lawyers' wives. During his employment, as driver of Mr.
Liyao, he does not remember driving for Corazon Garcia on a trip to Baguio or for
activities like shopping.
On August 31, 1993, the trial court rendered a decision, the dispositive portion of
which reads as follows:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and
against the defendants as follows:
(a) Confirming the appointment of Corazon G. Garcia as the guardian ad
litem of the minor William Liyao, Jr.;
(b) Declaring the minor William Liyao, Jr. as the illegitimate (spurious)
son of the deceased William Liyao;

(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 successional rights as
such; and
(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 other's 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 Liyao's signature and name do not appear thereon.
ETIDaH

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 husband having access to 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) By the impotence of the husband;

2) By the fact that husband and wife were living separately in such a way
that access was not possible;
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, none even his heirs can 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 mother's 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.
cACDaH

Considering the foregoing, we find no reason to discuss the sufficiency of the

evidence presented by both parties on the petitioner's 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, Mendoza, Quisumbing and Buena, JJ., concur.
|||

(Liyao, Jr. v. Tanhoti-Liyao, G.R. No. 138961, [March 7, 2002], 428 PHIL 628643)

THIRD DIVISION
[G.R. No. 138493. June 15, 2000.]
TEOFISTA BABIERA, petitioner, vs. PRESENTACION B.
CATOTAL, respondent.
Pablito C. Pielago, Sr. for petitioner.
Dulcesimo Tampus for respondent.
SYNOPSIS
Respondent filed with the Regional Trial Court of Lanao del Norte a petition for
the cancellation of the entry of birth of Teofista Babiera in the Civil Registry of
Iligan City. The case was docketed as Special Proceedings No. 3046.
Respondent asserted that she was the only surviving child of the late spouses
Eugenio Babiera and Hermogena Carinosa. Flora Guinto, the natural mother of
herein petitioner and the housemaid of the late spouses, caused the registration
of the facts of birth of her child, without the consent of the spouses, by simulating
that the petitioner was the child of said spouses. After trial on the merits, the trial
court rendered a decision declaring the birth certificate of petitioner null and void
and ordering the local civil registrar to cancel from the registry the questioned
birth certificate. On appeal, the appellate court affirmed the lower court's decision
and, accordingly, dismissed the appeal for lack of merit. Aggrieved by the
decision, petitioner filed a petition for review on certiorari questioning the decision
rendered by the trial and appellate courts.
The Supreme Court found the petition devoid of merit. The Court ruled that the
present case alleged and showed 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 latter's child at all.
Verily, the present action did not impugn petitioner's filiation to spouses Eugenio
and Hermogena Babiera because there is no blood relation to impugn in the first

place. In sum, the Court found no reason to reverse or modify the factual findings
of the trial and appellate court that petitioner was not the child of respondent's
parents. Accordingly, the petition was denied and the assailed decision was
affirmed.

DECISION
PANGANIBAN, J :
p

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 fiftyfour years old at the time of the child's birth and 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.
LexLib

Statement of the Case

Submitted for this Court's consideration is a Petition for Review
on Certiorari1 under Rule 45 of the Rules of Court, seeking reversal of the March
18, 1999 Decision 2 of the Court of Appeals 3 (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:
cdphil

"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) Declaring the Certificate of Birth of respondent Teofista Guinto as null

and void 'ab initio';
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:
"Presentacion 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
(hereafter 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 Babiera's 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)
Hermogena's 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.
"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.

"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.'

"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 Presentacion 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 Student's 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 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." 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, petitioner's 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.
The CA also deemed inapplicable Articles 170 and 171 of the Family Code,
which stated that only the father could impugn the child's 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
child's Birth Certificate for being void ab initio on the ground that the child did not
belong to either the father or the mother.
LibLex

Hence, this appeal. 6

Issues
Petitioner presents the following assignment of errors:
"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 oncertiorari;
2) The special proceeding on appeal under CA GR No CV-56031 is
improper and is barred by [the] statute of limitation (prescription);
[and]
3) The Honorable Court of Appeals, the fifteenth division utterly failed to
hold, that the ancient public record of petitioner's birth is superior
to the self-serving oral testimony of respondent." 7

The Court's Ruling

The Petition is not meritorious.
First Issue:
Subject of the Present Action
Petitioner contends that respondent has no standing to sue, because Article
171 8 of the Family Code states that the child's 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 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 wife's 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 latter's child at all.
Verily, the present action does not impugn petitioner's filiation to Spouses
Eugenio and Hermogena Babiera, because there is no blood relation to impugn
in the first place.
cda

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

"Petitioner's 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. 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 decedent's 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 (Italics supplied.)

Second Issue: Prescription

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:
"ARTICLE. 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."
LibLex

This argument is bereft of merit. The present action involves the cancellation of
petitioner's 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
Third Issue:

Presumption in Favor of the Birth Certificate

Lastly, petitioner argues that the evidence presented, especially Hermogena's
testimony that petitioner was not her real child, cannot overcome the presumption
of regularity in the issuance of the Birth Certificate.
While it is true that an official document such as petitioner's 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 mother's 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 former's real mother. For one, there is no evidence of
Hermogena's pregnancy, such as medical records and doctor's 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.

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 Eugenio's. The deposition reads in part:
cdasia

"q. Who are your children?

a Presentation 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 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

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 Hermogena's child. Neither has she provided any reason why her
supposed mother would make a deposition stating that the former was not the
latter's child at all.
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 respondent's parents.
WHEREFORE, the Petition is hereby DENIED and the assailed Decision
AFFIRMED. Costs against petitioner.
SO ORDERED.

SECOND DIVISION
[G.R. No. 105625. January 24, 1994.]
MARISSA BENITEZ-BADUA, petitioner, vs. COURT OF
APPEALS, VICTORIA BENITEZ LIRIO AND
FEODOR BENITEZAGUILAR, respondents.
DECISION
PUNO, J :
p

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 Vicente's estate ensued. On September 24, 1990,
private respondents Victoria Benitez-Lirio and Feodor Benitez Aguilar (Vicente's
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 Vicente's estate in favor of private respondent Aguilar.
They alleged, inter alia, viz:
xxx xxx xxx
"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 by them since childhood is, in fact, not
related to them by blood, nor legally adopted, and is therefore not a legal
heir; . . ."

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.
The trial court then received evidence on the issue of petitioner's 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, VictoriaBenitez-Lirio, elder sister of the late Vicente, then 77
years of age, 2categorically 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.
LexLib

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:
"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.
Costs against appellee.
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. 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 this case
and in adopting or upholding private respondent's theory that the instant
case does not involve an action to impugn the legitimacy of a child;
"2. Assuming arguendo that private respondents can question or
impugn directly or indirectly, the legitimacy of Marissa's 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;
"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.

Petitioner's 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:

"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.
cdrep

"Art. 166. Legitimacy of child may be impugned only on the

following grounds:
"1) That it was physically impossible for the husband to have
sexual intercourse with his wife within the first 120 days of the 300 days
which immediately preceded the birth of the child because of:
a) the physical incapacity of the husband to have sexual
intercourse with his wife;
b) the fact that the husband and wife were living separately
in such a way that sexual intercourse was not possible; or
c) serious illness of the husband, which absolutely
prevented sexual intercourse.
"2) That it is proved that for biological or other scientific reasons,
the child could not have been that of the husband except in the instance
provided in the second paragraph of Article 164; or
"3) That in case of children conceived through artificial
insemination, the written authorization or ratification of either parent was
obtained through mistake, fraud, violence, intimidation, or undue
influence.
"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) If the husband should die before the expiration of the
period fixed for bringing his action;
"2) If he should die after the filing of the complaint, without
having desisted therefrom; or
"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
heirsshould 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. 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 decedent's 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 Benitezand Isabel
Chipongian. The appellate court exhaustively dissected the evidence of the
parties as follows:
". . . And on this issue, we are constrained to say that appellee's
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 wife's 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.
llcd

"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. Isabel's 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 has 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 he would register the baby as his and his wife's 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 Lirio's
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 Chipongian's
personal beautician who used to set her hair once a week at her
(Isabel's) 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 Isabel's house to set the latter's 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 woman's 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, appellee's birth certificate Exh. "3" with the late Vicente
O. Benitez appearing as the informant, is highly questionable and
suspicious. For if Vicente's wife Isabel, who was already 36 years old at
the time of the child's 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 Isabel's obstetrician-gynecologist Dr. Constantino 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 appellee's birth certificate, Marissa was supposedly born at
theBenitez 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 of simulation of the child's 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 Isabel's only brother and sibling Dr. Nilo Chipongian,
after Isabel's death on April 25, 1982, state in the extrajudicial settlement
Exh. "E" that they executed 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 a statement in said document,
unless appellee Marissa Benitez is really not his and his wife's daughter
and descendant and, therefore, not his deceased's 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-in-law, as against those of the latter's
collateral blood relatives.
LLpr

Fourth, it is likewise odd and strange, if appellee

MarissaBenitez 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 property when he die
to 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 (Isabel's) husband makes her so.
Finally, the deceased Vicente O. Benitez' elder sister
VictoriaBenitez Lirio even testified that her brother Vicente gave the date
December 8 as Marissa's birthday in her birth certificate because that
date is the birthday of their (Victoria and Vicente's) 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 wife's child and that they gave her the birth date of Vicente's 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 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
petitioner's 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, VicenteBenitez effectively repudiated the Certificate of Live Birth of

petitioner where it appeared that he was petitioner's father. The repudiation
was made twenty-eight years after he signed petitioner's Certificate of Live
Birth.
LibLex

IN VIEW WHEREOF, the petition for review is dismissed for lack of merit. Costs
against petitioner.
SO ORDERED.
Narvasa, C.J., Padilla and Regalado, JJ., concur.
Nocon, J., is on leave.
|||

(Benitez-Badua v. Court of Appeals, G.R. No. 105625, [January 24, 1994])

FIRST DIVISION
[G.R. No. 69679. October 18, 1988.]
VIOLETA CABATBAT LIM, LIM BIAK CHIAO and CALASIAO BIJON
FACTORY, petitioners, vs. INTERMEDIATE APPELLATE COURT,
CONSORCIA FRIANEZA GOLEA MARIA FRIANEZA VERGARA,
BENEDICTA FRIANEZA MAYUGBA, BONIFACIA FRIANEZA, HEIRS
OF DOMINGO FRIANEZA namely, DECIDERIA Q. VDA. DE
FRIANEZA FRANCISCO, DONA VILMA and DECIDERIA all
surnamed FRIANEZA, HEIRS OF DANIEL FRIANEZA namely,
ADELA V. VDA. DE FRIANEZA, in her behalf and as Guardian ad
litem of Minors, DARLENE, DANIEL JR., DUSSEL and DAISY GLEN,
all surnamed FRIANEZA, respondents.
Ethelwoldo R. de Guzman for petitioners.
Tomas B. Tadeo, Sr. for private respondents.
DECISION
GRIO-AQUINO, J :
p

This case involves a contest over the estate of the late Dra.
EsperanzaCabatbat wherein the protagonists are her sisters and the children of
her deceased brothers on one hand, and the petitioner Violeta Cabatbat Limwho
claims to be her only child.
LibLex

Petitioners Violeta Cabatbat Lim, her husband Lim Biak Chiao, and the Calasiao
Bijon Factory assail the decision dated October 25, 1984 of the Intermediate
Appellate Court, now Court of Appeals (AC-G.R. No. CV-67055), which affirmed
the trial court's decision finding that petitioner VioletaCabatbat Lim is not the
offspring, hence, not a legal heir of the late Esperanza Cabatbat.
LLphil

The private respondents, sisters of the late Esperanza Frianeza-Cabatbat, filed a

complaint in the Court of First Instance of Pangasinan (Civil Case No. D-3841),
praying for the partition of the estate of Esperanza FrianezaCabatbat, who died
without issue on April 23, 1977. Part of her estate was her interest in the
business partnership known as Calasiao Bijon Factory, now in the possession of
Violeta Cabatbat Lim who claims to be the child of the spouses Esperanza and
Proceso Cabatbat.
Esperanza Frianeza-Cabatbat was survived by her husband, ProcesoCabatbat,
her sisters, Consorcia, Maria, Benedicta, Bonifacia, all surnamed Frianeza and
the children of her deceased brothers Daniel and Domingo.
In their complaint, the private respondents alleged that Violeta Cabatbat Limis not
a child of Esperanza, but was only a ward (ampon) of the spouses Esperanza
and Proceso Cabatbat who sheltered and supported her from childhood, without
benefit of formal adoption proceedings.
Private respondents' evidence on the non-filiation of Violeta to
EsperanzaCabatbat were: 1) the absence of any record that
Esperanza Cabatbat was admitted in the hospital where Violeta was born and
that she gave birth to Violeta on the day the latter was born; 2) the absence of the
birth certificate of Violeta Cabatbat in the files of certificates of live births of the
Pangasinan Provincial Hospital for the years 1947 and 1948, when Violeta was
supposedly born; 3) certification dated March 9, 1977, of the Civil Registry
coordinator Eugenio Venal of the Office of the Civil Registrar General, that his
office has no birth record of Violeta Cabatbat alleged to have been born on May
26, 1948 or 1949 in Calasiao, Pangasinan; 4) certification dated June 16, 1977 of
Romeo Gabriana, Principal II, that when Violeta studied in the Calasiao Pilot
Central School, Proceso Cabatbat and Esperanza Cabatbatwere listed as
her guardians only, not as her parents; 5) testimony of Amparo Reside that she
was in the Pangasinan Provincial Hospital on May 21, 1948 to watch a cousin
who delivered a child there and that she became acquainted with a patient
named Benita Lastimosa who gave birth on May 26, 1948 to a baby girl who grew
up to be known as Violeta Cabatbat.
cdphil

Pitted against the evidence of the plaintiffs are the evidence of herein petitioners
consisting of: 1) Violeta Cabatbat's birth record which was filed on June 15, 1948
showing that she was born on May 26, 1948 at the Pangasinan Provincial
Hospital and that she is a legitimate child of the spouses Proceso and
Esperanza Cabatbat; 2) testimony of Proceso Cabatbatthat Violeta is his child
with the deceased Esperanza Frianeza; 3) testimony of Benita Lastimosa
denying that she delivered a child in the Pangasinan Provincial Hospital and that
Violeta Cabatbat Lim is that child; 4) the marriage contract of Violeta
and Lim Biak Chiao where Esperanza appeared as the mother of the bride; 5)
Deed of Sale dated May 14, 1960, wherein the vendee Violeta Cabatbat, then a
minor, was represented and assisted by her "mother," Dra. Esperanza Cabatbat;
and 6) another Deed of Absolute Sale dated April 21, 1961, wherein
Violeta Cabatbat was assisted and represented by her "father,"
Proceso Cabatbat.
Upon the evidence, the trial court held on August 10, 1979 that
VioletaCabatbat is not a child by nature of the spouses Esperanza and
ProcesoCabatbat and that hence, she is not a legal heir of the deceased
EsperanzaCabatbat. The dispositive portion of the trial court's decision reads:
"WHEREFORE, judgment is hereby rendered as follows:
"(1) Finding that defendant VIOLETA CABATBAT LIM is not a child by
nature of the spouses, decedent Esperanza Frianeza and defendant
Proceso Cabatbat, and not a compulsory heir of the said decedent;
"(2) Declaring that the heirs of the decedent are her surviving husband,
defendant Proceso Cabatbat and her sisters, plaintiffs CONSORCIA,
MARIA, BENEDICTA alias JOVITA, and BONIFACIA alias ANASTACIA,
all surnamed FRIANEZA, her brothers deceased DANIEL FRIANEZA
represented by his surviving spouse, Adela Vda. de Frianeza, and their
children, Darlene, Daniel, Jr., Dussel and Daisy Glen, all surnamed
FRIANEZA, and deceased DOMINGO FRIANEZA, represented by his
surviving spouse Desideria Q. Vda. de Frianeza and their children,
Francisco, Dona, Vilma and Decideria, all surnamed FRIANEZA;
"(3) Finding that the estate left by the decedent are the thirty properties
enumerated and described at pages 13 to 19 supra and an equity in the

Calasiao Bijon Factory in the sum of P37,961.69 of which P13,221.69

remains after advances obtained by the deceased during her lifetime and
lawful deductions made after her death;
"(4) That of the real properties adverted to above, three-fourths (3/4) proindiviso is the share of defendant Proceso Cabatbat, as the surviving
spouse, one-half (1/2) as his share of the conjugal estate and one-half
(1/2) of the remaining one-half as share as heir from his wife
(decedent's) estate, while the remaining one-half (1/2) of the other half is
the group share of the heirs of the brothers and sisters of his wife and of
the children of the latter if deceased, whose names are already
enumerated hereinbefore in the following proportions: one-sixth (1/6)
each pro-indiviso to Consorcia, Maria, Benedicta alias Jovita, and
Bonifacia alias Anastacia; one-sixth (1/6) to Adela B. Vda. de Fraineza,
Darlene, Daniel, Jr., Dussel and Daisy Glen, as a group in representation
of deceased brother DANIEL FRIANEZA, and one-sixth (1/6) to
Decideria Q. Vda. de Frianeza, Francisco, Dona, Vilma and Decideria as
a group in representation of deceased brother DOMINGO FRIANEZA;
"(5) That of the balance of the equity of the deceased in the CALASIAO
BIJON FACTORY in the sum of P13,221.69, three-fourths (3/4) or
P9,916.29 is the share of Proceso Cabatbat as surviving spouse and as
heir of his deceased wife, and the remaining one-fourth (1/4) to the
plaintiffs under the sharing already stated in the preceding paragraph; (a)
but because defendant Proceso Cabatbathas overdrawn his share he is
ordered to return to the estate the sum of P796.34 by depositing the
same with the Clerk of Court; and (b) defendant Violeta Cabatbat Lim,
not being an heir, is ordered to return to the estate the sum of P2,931.13
half of what she and her co-defendant Proceso Cabatbat withdrew from
the equity of the deceased under Exhibit 29, receipt dated April 30,
1977;

"(6) Ordering jointly defendants Proceso Cabatbat and

VioletaCabatbat Lim to pay attorney's fees in the sum of P5,000.00, the
sum of P4,000.00 from defendant Proceso Cabatbat and P1,000.00 from
defendant Violeta Cabatbat Lim, and litigation expenses in the sum of

P1,000.00 from defendant Proceso Cabatbat and P200.00 from

defendant Violeta Cabatbat Lim, to the plaintiffs, and to pay the costs.
"SO ORDERED." (pp. 236-239, Record on Appeal.)

Petitioners appealed to the Intermediate Appellate Court which affirmed the

decision of the trial court on October 25, 1984.
A motion for reconsideration filed by the petitioners was denied by the
Intermediate Appellate Court.
Petitioners have elevated the decision to Us for review on certiorari, alleging that
the Intermediate Appellate Court erred:
1. In finding that petitioner is not the child of Prospero and
Esperanza Cabatbat;
2. In ignoring the provisions of Section 22 of Rule 132, Rules of Court;
3. In not considering the provision of Article 263 of the New Civil Code;
4. In disregarding Exhibits 8,9,10, and 11 of petitioner
VioletaCabatbat Lim.

Petitioners' first and fourth assignments of error raise factual issues. The finding
of the trial court and the Court of Appeals that Violeta Cabatbat was not born of
Esperanza Cabatbat is a factual finding based on the evidence presented at the
trial, hence, it is conclusive upon Us. Well entrenched is the rule that "factual
findings of the trial court and the Court of Appeals are entitled to great respect"
(Vda. de Roxas vs. IAC, 143 SCRA 77; Republic vs. IAC, 144 SCRA 705).
cdphil

Section 22, Rule 132 of the Rules of Court which provides that: "Where a private
writing is more than thirty years old, is produced from a custody in which it would
naturally be found if genuine, and is unblemished by any alterations or
circumstances of suspicion, no other evidence of its execution and authenticity
need be given" does not apply to petitioners' Exhibit "5," the supposed birth
registry record of defendant Violeta Cabatbat showing that she was born on May
26, 1948, at the Pangasinan Provincial Hospital in Dagupan City, and that her
father and mother are Proceso Cabatbat and Esperanza Frianeza, respectively.
In rejecting that document, the trial court pointedly observed:

"This is very strange and odd because the Registry Book of admission of
the hospital does not show that Esperanza Frianeza was ever a patient
on May 26, 1948. Indeed, Esperanza Frianeza was never admitted in the
hospital as an obstetrics case before or after May 26, 1948, that is from
December 1, 1947 to June 15, 1948 (Stipulation of Facts, Pre-Trial Order
of May 23, 1977, Record on Appeal, p. 117).
"On May 26, 1948, the day defendant Violeta Cabatbat was alleged to
have been delivered by Esperanza Frianeza in the Pangasinan
Provincial Hospital, the records of the hospital show that only one
woman by the name of the Benita Lastimosa of Tagudin, Ilocos Sur, not
Esperanza Frianeza, gave birth to an illegitimate child who was named
by her mother Benita Lastimosa as Baby Girl Lastimosa (Exhibit S.
Plaintiffs' Folder of Exhibits, p. 39, Record on Appeal, pp. 117-118).
Furthermore, the record of birth certificates of Pangasinan Provincial
Hospital for the years 1947 and 1948 does not carry the birth certificate
of defendant Violeta Cabatbat and the only birth certificate in the file of
birth certificates of the hospital for May 26, 1948 is that of Baby Girl
Lastimosa whose mother's name is Benita Lastimosa." (pp. 3-4, CA
Decision, pp. 13-14, Record on Appeal.)

Furthermore, the absence of a record of the birth of petitioner VioletaCabatbat in

the Office of the Civil Registrar General, puts a cloud on the genuineness of her
Exhibit 5.
Petitioners' recourse to Article 263 of the New Civil 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 decedent's child at all.
Being neither a legally adopted child, nor an acknowledged natural child, nor a
child by legal fiction of EsperanzaCabatbat, Violeta is not a legal heir of the
deceased.
LLphil

WHEREFORE, the petition is denied for lack of merit. The appealed decision is
affirmed, but with modification of paragraphs 2 and 4 of the dispositive portion
thereof, by excluding the widows Adela B. Vda. de Frianeza and Decideria Q.

Vda. de Frianeza, who are not legal heirs of Esperanza FrianezaCabatbat from
participating with their children and the surviving sisters of the deceased in the
one-fourth share of the estate pertaining to the latter under Article 1001 of the
Civil Code. SO ORDERED.

SECOND DIVISION
[G.R. No. 121027. July 31, 1997.]
CORAZON DEZOLLER TISON and RENE R.
DEZOLLER,petitioners, vs. COURT OF APPEALS and
TEODORA DOMINGO, respondents.
Benjamin P. Quitoriano for petitioners.
Ramoso Law Office for private respondent.
DECISION
REGALADO, J :
p

The present appeal by certiorari seeks the reversal of the judgment rendered by
respondent Court of Appeals on June 30, 1995 1 which affirmed the Order of
December 3, 1992 issued by the Regional Trial Court of Quezon City, Branch 98,
granting herein private respondent's Demurrer to Plaintiff's Evidence filed in Civil
Case No. Q-88-1054 pending therein.
The present appellate review involves an action for reconveyance filed by herein
petitioners against herein private respondent before the Regional Trial Court of
Quezon City, Branch 98, docketed as the aforesaid Civil Case No. Q-88-1054,
over a parcel of land with a house and apartment thereon located at San
Francisco del Monte, Quezon City and which was originally owned by the
spouses Martin Guerrero and Teodora Dezoller Guerrero. It appears that
petitioners Corazon Tison and Rene Dezoller are the niece and nephew,
respectively, of the deceased Teodora Dezoller Guerrero who is the sister of
petitioners' father, Hermogenes Dezoller. Teodora Dezoller Guerrero died on
March 5, 1983 without any ascendant or descendant, and was survived only by
her husband, Martin Guerrero, and herein petitioners. Petitioners' father,

Hermogenes, died on October 3, 1973, hence they seek to inherit from Teodora
Dezoller Guerrero by right of representation.
The records reveal that upon the death of Teodora Dezoller Guerrero, her
surviving spouse, Martin, executed on September 15, 1986 an Affidavit of
Extrajudicial Settlement 2 adjudicating unto himself, allegedly as sole heir, the
land in dispute which is covered by Transfer Certificate of Title No. 66886, as a
consequence of which Transfer Certificate of Title No. 358074 was issued in the
name of Martin Guerrero. On January 2, 1988, Martin Guerrero sold the lot to
herein private respondent Teodora Domingo and thereafter, Transfer Certificate of
Title No. 374012 was issued in the latter's name.
Martin Guerrero died on October 25, 1988. Subsequently, herein petitioners filed
an action for reconveyance on November 2, 1988, claiming that they are entitled
to inherit one-half of the property in question by right of representation.
cdtai

At the pre-trial conference, the following issues were presented by both parties
for resolution:
(1) whether or not the plaintiffs (herein petitioners) are the nephew and
niece of the late Teodora Dezoller;
(2) whether or not the plaintiffs are entitled to inherit by right of
representation from the estate of the late Teodora Dezoller;
(3) whether or not defendant (herein private respondent) must reconvey
the reserved participation of the plaintiffs to the estate of the late
Teodora Dezoller under Section 4, Rule 74 of the Rules of Court which
was duly annotated on the title of the defendant;
(4) whether or not the plaintiffs are entitled to damages, moral and
exemplary, plus attorney' s fees for the willful and malicious refusal of
defendant to reconvey the participation of plaintiffs in the estate of
Teodora Dezoller, despite demands and knowing fully well that plaintiffs
are the niece and nephew of said deceased; and

(5) whether or not the subject property now in litigation can be

considered as conjugal property of the spouses Martin Guerrero and
Teodora Dezoller Guerrero. 3

During the hearing, petitioner Corazon Dezoller Tison was presented as the lone
witness, with the following documentary evidence offered to prove petitioners'
filiation to their father and their aunt, to wit: a family picture; baptismal certificates
of Teodora and Hermogenes Dezoller; certificates of destroyed records of birth of
Teodora Dezoller and Hermogenes Dezoller; death certificates of Hermogenes
Dezoller and Teodora Dezoller Guerrero; certification of destroyed records of live
birth of Corazon and Rene Dezoller; joint affidavits of Pablo Verzosa and Meliton
Sitjar attesting to the parents, date and place of birth of Corazon and Rene
Dezoller; joint affidavit of Juliana Cariaga and Manuela Cariaga attesting to the
fact of marriage between Martin Guerrero and Teodora Dezoller; and the
marriage certificate of Martin and Teodora Guerrero. 4 Petitioners thereafter
rested their case and submitted a written offer of these exhibits to which a
Comment 5 was filed by herein private respondent.
Subsequently, private respondent filed a Demurrer to Plaintiff's Evidence on the
ground that petitioners failed to prove their legitimate filiation with the deceased
Teodora Guerrero in accordance with Article 172 of the Family Code. It is further
averred that the testimony of petitioner Corazon Dezoller Tison regarding her
relationship with her alleged father and aunt is self-serving, uncorroborated and
incompetent, and that it falls short of the quantum of proof required under Article
172 of the Family Code to establish filiation. Also, the certification issued by the
Office of the Local Civil Registrar of Himamaylan, Negros Occidental is merely
proof of the alleged destruction of the records referred to therein, and the joint
affidavit executed by Pablo Verzosa and Meliton Sitjar certifying to the date, place
of birth and parentage of herein petitioners is inadmissible for being hearsay
since the affiants were never presented for cross-examination. 6
On December 3, 1992, the trial court issued an order granting the demurrer to
evidence and dismissing the complaint for reconveyance. 7
In upholding the dismissal, respondent Court of Appeals declared that the
documentary evidence presented by herein petitioners, such as the baptismal

certificates, family picture, and joint affidavits are all inadmissible and insufficient
to prove and establish filiation. Hence, this appeal.
We find for petitioners.
The bone of contention in private respondent's demurrer to evidence is whether
or not herein petitioners failed to meet the quantum of proof required by Article
172 of the Family Code to establish legitimacy and filiation. There are two points
for consideration before us: first is the issue on petitioner's legitimacy,
and second is the question regarding their filiation with Teodora Dezoller
Guerrero.
I. It is not debatable that the documentary evidence adduced by petitioners, taken
separately and independently of each other, are not per se sufficient proof of
legitimacy nor even of pedigree. It is important to note, however, that the rulings
of both lower courts in the case are basically premised on the erroneous
assumption that, in the first place, the issue of legitimacy may be validly
controverted in an action for reconveyance, and, in the second place, that herein
petitioners have the onus probandi to prove their legitimacy and, corollarily, their
filiation. We disagree on both counts.
It seems that both the court a quo and respondent appellate court have
regrettably overlooked the universally recognized presumption on legitimacy.
There is 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 And well settled is the rule that the issue of
legitimacy cannot be attacked collaterally.
The rationale for these rules has been explained in this wise:
"The presumption of legitimacy in the Family Code . . . 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. The necessity

of an independent action directly impugning the legitimacy is more

clearly expressed in the Mexican Code (Article 335) which provides: 'The
contest of the legitimacy of a child by the husband or his heirs must be
made by proper complaint before the competent court; any contest made
in any other way is void.' This principle applies under our Family Code.
Articles 170 and 171 of the code confirm this view, because they refer to
"the action to impugn the legitimacy." This action can be brought only by
the husband or his heirs and within the periods fixed in the present
articles.
Upon the expiration of the periods provided in Article 170, the action to
impugn the legitimacy of a child can no longer be brought. The status
conferred by the presumption, therefore, becomes fixed, and can no
longer be questioned. The obvious intention of the law is to prevent the
status of a child born in wedlock from being in a state of uncertainty for a
long time. It also aims to force early action to settle any doubt as to the
paternity of such child, so that the evidence material to the matter, which
must necessarily be facts occurring during the period of the conception
of the child, may still be easily available.
xxx xxx xxx
Only the husband can contest the legitimacy of a child born to his wife.
He is the one directly confronted with the scandal and ridicule which the
infidelity of his wife produces; and he should 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, none even his heirs
can impugn legitimacy; that would amount to an insult to his
memory." 9

The issue, therefore, as to whether petitioners are the legitimate children of

Hermogenes Dezoller cannot be properly controverted in the present action for
reconveyance. This is aside, of course, from the further consideration that private
respondent is not the proper party to impugn the legitimacy of herein petitioners.
The presumption consequently continues to operate in favor of petitioners unless
and until it is rebutted.

Even assuming that the issue is allowed to be resolved in this case, the burden of
proof rests not on herein petitioners who have the benefit of the presumption in
their favor, but on private respondent who is disputing the same. This fact alone
should have been sufficient cause for the trial court to exercise appropriate
caution before acting, as it did, on the demurrer to evidence. It would have
delimited the issues for resolution, as well as the time and effort necessitated
thereby.
cdtai

Ordinarily, when a fact is presumed, it implies that the party in whose favor the
presumption exists does not have to introduce evidence to establish that fact, and
in any litigation where that fact is put in issue, the party denying it must bear the
burden of proof to overthrow the presumption. 10 The presumption of legitimacy is
so strong that it is clear that its effect is to shift the burden of persuasion to the
party claiming illegitimacy. 11 And in order to destroy the presumption, the party
against whom it operates must adduce substantial and credible evidence to the
contrary. 12
Where there is an entire lack of competent evidence to the contrary, 13 and
unless or until it is rebutted, it has been held that a presumption may stand in lieu
of evidence and support a finding or decision. 14 Perforce, a presumption must be
followed if it is uncontroverted. This is based on the theory that a presumption
is prima facie proof of the fact presumed, and unless the fact thus
established prima facie by the legal presumption of its truth is disproved, it must
stand as proved. 15
Indubitably, when private respondent opted not to present countervailing
evidence to overcome the presumption, by merely filing a demurrer to evidence
instead, she in effect impliedly admitted the truth of such fact. Indeed, she
overlooked or disregarded the evidential rule that presumptions like judicial notice
and admissions, relieve the proponent from presenting evidence on the facts he
alleged and such facts are thereby considered as duly proved.
II. The weight and sufficiency of the evidence regarding petitioner's relationship
with Teodora Dezoller Guerrero, whose estate is the subject of the present
controversy, requires a more intensive and extensive examination.

Petitioners' evidence, as earlier explained, consists mainly of the testimony of

Corazon Dezoller Tison, the baptismal, death and marriage certificates, the
various certifications from the civil registrar, a family picture, and several joint
affidavits executed by third persons all of which she identified and explained in
the course and as part of her testimony.
The primary proof to be considered in ascertaining the relationship between the
parties concerned is the testimony of Corazon Dezoller Tison to the effect that
Teodora Dezoller Guerrero in her lifetime, or sometime in 1946, categorically
declared that the former is Teodora's niece. 16 Such a statement is considered a
declaration about pedigree which is admissible, as an exception to the hearsay
rule, under Section 39, Rule 130 of the Rules of Court, subject to the following
conditions: (1) that the declarant is dead or unable to testify; (2) that the declarant
be related to the person whose pedigree is the subject of inquiry; (3) that such
relationship be shown by evidence other than the declaration; and (4) that the
declaration was madeante litem motam, that is, not only before the
commencement of the suit involving the subject matter of the declaration, but
before any controversy has arisen thereon.

There is no dispute with respect to the first, second and fourth elements. What
remains for analysis is the third element, that is, whether or not the other
documents offered in evidence sufficiently corroborate the declaration made by
Teodora Dezoller Guerrero in her lifetime regarding the pedigree of petitioner
Corazon Dezoller Tison or, if at all, it is necessary to present evidence other than
such declaration.
American jurisprudence has it that a distinction must be made as to when the
relationship of the declarant may be proved by the very declaration itself, or by
other declarations of said declarant, and when it must be supported by
evidence aliunde. The rule is stated thus:
"One situation to be noted is that where one seeks to set up a claim
through, but not from, the declarant and to establish the admissibility of a
declaration regarding claimant's pedigree, he may not do so by
declarant's own statements as to declarant' s relationship to the

particular family. The reason is that declarant's declaration of his own

relationship is of a self-serving nature. Accordingly there must be
precedent proof from other sources that declarant is what he claimed to
be, namely, a member of the particular family; otherwise the requirement
to admissibility that declarant's relationship to the common family must
appear is not met. But when the party claiming seeks to establish
relationship in order to claim directly from the declarant or the declarant's
estate, the situation and the policy of the law applicable are quite
different.In such case the declaration of the decedent, whose estate is in
controversy, that he was related to the one who claims his estate, is
admissible without other proof of the fact of relationship. While the nature
of the declaration is then disserving, that is not the real ground for its
admission. Such declarations do not derive their evidential value from
that consideration, although it is a useful, if not an artificial, aid in
determining the class to which the declarations belong. The distinction
we have noted is sufficiently apparent; in the one case the declarations
are self-serving, in the other they are competent from reasons of
necessity." 17 (Emphasis ours.)

The general rule, therefore, is that where the party claiming seeks recovery
against a relative common to both claimant and declarant, but not from the
declarant himself or the declarant's estate, the relationship of the declarant to the
common relative may not be proved by the declaration itself. There must be some
independent proof of this fact. 18 As an exception, the requirement that there be
other proof than the declarations of the declarant as to the relationship, does not
apply where it is sought to reach the estate of the declarant himself and not
merely to establish a right through his declarations to the property of some other
member of the family. 19
We are sufficiently convinced, and so hold, that the present case is one instance
where the general requirement on evidence aliunde may be relaxed. Petitioners
are claiming a right to part of the estate of the declarant herself. Conformably, the
declaration made by Teodora Dezoller Guerrero that petitioner Corazon is her
niece, is admissible and constitutes sufficient proof of such relationship,
notwithstanding the fact that there was no other preliminary evidence thereof, the
reason being that such declaration is rendered competent by virtue of the
necessity of receiving such evidence to avoid a failure of justice. 20 More

importantly, there is in the present case an absolute failure by all and sundry to
refute that declaration made by the decedent.
cdtai

From the foregoing disquisitions, it may thus be safely concluded, on the sole
basis of the decedent's declaration and without need for further proof thereof,
that petitioners are the niece and nephew of Teodora Dezoller Guerrero. As held
in one case, 21 where the subject of the declaration is the declarant's own
relationship to another person, it seems absurd to require, as a foundation for the
admission of the declaration, proof of the very fact which the declaration is
offered to establish. The preliminary proof would render the main evidence
unnecessary.
Applying the general rule in the present case would nonetheless produce the
same result. For while the documentary evidence submitted by petitioners do not
strictly conform to the rules on their admissibility, we are however of the
considered opinion that the same may be admitted by reason of private
respondent's failure to interpose any timely objection thereto at the time they
were being offered in evidence. 22 It is elementary that an objection shall be
made at the time when an alleged inadmissible document is offered in
evidence, 23 otherwise, the objection shall be treated as waived, 24 since the right
to object is merely a privilege which the party may waive. 25
As explained in Abrenica vs. Gonda, et al., 26 it has been repeatedly laid down as
a rule of evidence that a protest or objection against the admission of any
evidence must be made at the proper time, otherwise it will be deemed to have
been waived. The proper time is when from the question addressed to the
witness, or from the answer thereto, or from the presentation of the proof, the
inadmissibility of the evidence is, or may be inferred.
Thus, a failure to except to the evidence because it does not conform with the
statute is a waiver of the provisions of the law. That objection to a question put to
a witness must be made at the time the question is asked. An objection to the
admission of evidence on the ground of incompetency, taken after the testimony
has been given, is too late. 27 Thus, for instance, failure to object to parol
evidence given on the stand, where the party is in a position to object, is a waiver
of any objections thereto. 28

The situation is aggravated by the fact that counsel for private respondent
unreservedly cross-examined petitioners, as the lone witness, on the
documentary evidence that were offered. At no time was the issue of the
supposed inadmissibility thereof, or the possible basis for objection thereto, ever
raised. Instead, private respondent's counsel elicited answers from the witness
on the circumstances and regularity of her obtention of said documents: The
observations later made by private respondent in her comment to petitioners'
offer of exhibits, although the grounds therefor were already apparent at the time
these documents were being adduced in evidence during the testimony of
Corazon Dezoller Tison but which objections were not timely raised therein, may
no longer serve to rectify the legal consequences which resulted therefrom.
Hence, even assuming ex gratia argumenti that these documents are
inadmissible for being hearsay, but on account of herein private respondent's
failure to object thereto, the same may be admitted and considered as sufficient
to prove the facts therein asserted. 29
Accordingly, the Certificate of Marriage (Exhibit S) wherein it is indicated that the
parents of Teodora Dezoller are Isabelo Dezoller and Cecilia Calpo, as well as
the Certificates of Baptism of Teodora Dezoller 30 (Exhibit H) and Hermogenes
Dezoller (Exhibit J) which both reflect the names of their parents as Isabelo
Dezoller and Cecilia Calpo, to show that Hermogenes Dezoller is the brother of
Teodora Dezoller Guerrero; and the Death Certificate of Hermogenes Dezoller
(Exhibit K) the entries wherein were made by petitioner Corazon Dezoller Tison
as his daughter, together with the Joint Affidavits of Pablo Verzosa and Meliton
Sitjar (Exhibits N and P), to prove that herein petitioners are the children of
Hermogenes Dezoller these can be deemed to have sufficiently established
the relationship between the declarant and herein petitioners. This is in
consonance with the rule that a prima facie showing is sufficient and that only
slight proof of the relationship is required. 31 Finally, it may not be amiss to
consider as in the nature of circumstantial evidence the fact that both the
declarant and the claimants, who are the subject of the declaration, bear the
surname Dezoller. 32
III. The following provisions of the Civil Code provide for the manner by which the
estate of the decedent shall be divided in this case, to wit:

"Art. 975. When children of one or more brothers or sisters of the

deceased survive, they shall inherit from the latter by representation, if
they survive with their uncles or aunts. But if they alone survive, they
shall inherit in equal portions."
"Art. 995. In the absence of legitimate descendants and ascendants, and
illegitimate children and their descendants, whether legitimate or
illegitimate, the surviving spouse shall inherit the entire estate, without
prejudice to the rights of brothers and sisters, nephews and nieces,
should there be any, under Article 1001."
"Art. 1001. Should brothers and sisters or their children survive with the
widow or widower, the latter shall be entitled to one-half of the
inheritance and the brothers and sisters or their children to the other
half."

Upon the death of Teodora Dezoller Guerrero, one-half of the subject property
was automatically reserved to the surviving spouse, Martin Guerrero, as his
share in the conjugal partnership. Applying the aforequoted statutory provisions,
the remaining half shall be equally divided between the widower and herein
petitioners who are entitled to jointly inherit in their own right. Hence, Martin
Guerrero could only validly alienate his total undivided three-fourths (3/4) share in
the entire property to herein private respondent. Resultantly, petitioners and
private respondent are deemed co-owners of the property covered by Transfer
Certificate of Title No. 374012 in the proportion of an undivided one-fourth (1/4)
and three-fourths (3/4) share thereof, respectively.
cdrep

All told, on the basis of the foregoing considerations, the demurrer to plaintiffs'
evidence should have been, as it is hereby, denied. Nonetheless, private
respondent may no longer be allowed to present evidence by reason of the
mandate under Section 1 of revised Rule 3 of the Rules of Court which provides
that "if the motion is granted but on appeal the order of dismissal is reversed he
shall be deemed to have waived the right to present evidence." 33
WHEREFORE, the questioned judgment of respondent Court of Appeals is
hereby REVERSED and SET ASIDE, and herein petitioners and private

respondent are declared co-owners of the subject property with an undivided

one-fourth (1/4) and three-fourth (3/4) share therein, respectively.
SO ORDERED.

SECOND DIVISION
[G.R. No. 95229. June 9, 1992.]
CORITO OCAMPO TAYAG, petitioner, vs. HON. COURT OF
APPEALS and EMILIE DAYRIT CUYUGAN, respondents.
Lorenzo G. Timbol for petitioner.
Jose P. Bondoc for E. Cuyugan.
DECISION
REGALADO, J :
p

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 Ocampo 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:

"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;
"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;
"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:
'. . . 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.'
'. . . Please take good care and pray to Sto. Nio for our
sake and for the child sake.'
'. . . Keep him. Take good care of him.'
'. . . 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.'
'. . . I have vowed to recognize him and be my heir.'
'. . . How is CHAD and you . . .'
'. . . 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."

"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;
"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;
"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;
"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;
"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;
"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 xxx 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 supportpendente
lite.
Petitioner, as defendant therein, filed her answer with counterclaim on June 3,
1987, disputing the material allegations 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 xxx 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 . . ." 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 xxx 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.
"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 CA-G.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:
"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;
"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
"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
for failure of the petitioner to allege the fact of acknowledgment in the complaint,
but the prescription of the action.
Applying the foregoing principles to the case at bar, although petitioner contends
that the complaint filed by herein private respondent merely alleges that the minor
Chad Cuyugan is an illegitimate child of the deceased and is actually a claim for
inheritance, from the allegations therein the same may be considered as one to
compel recognition. Further, that the two causes of action, one to compel

recognition and the other to claim inheritance, may be joined in one complaint is
not new in our jurisprudence.
As early as 1922, we had occasion to rule thereon in Briz vs. Briz, et
al., 12 wherein we said:
llcd

"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. . . . .

"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 . . . ; and the same person may intervene in
proceedings for the distribution of the estate of his deceased natural
father, or mother . . . . 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."

The next question to be resolved is whether the action to compel recognition has
prescribed.
cdphil

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.
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) 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 xxx 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 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.
cdrep

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.
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.
LibLex

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., Paras and Padilla, JJ., concur.
Nocon, J., is on leave.
|||

(Tayag v. Court of Appeals, G.R. No. 95229, [June 9, 1992])

FIRST DIVISION
[G.R. No. 124853. February 24, 1998.]
FRANCISCO L. JISON, petitioner, vs. COURT OF APPEALS and
MONINA JISON, respondents.
DECISION
DAVIDE, JR., J :
p

This is a petition for review under Rule 45 of the Rules of Court of the 27 April
1995 decision of the Court of Appeals (CA) in CA-G.R. CV No. 32860 1 which
reversed the decision of Branch 24 of the Regional Trial Court (RTC) of Iloilo City
in Civil Case No. 16373. 2 The latter dismissed the complaint of private
respondent Monina Jison (hereafter MONINA) for recognition as an illegitimate
child of petitioner Francisco Jison (hereafter FRANCISCO).
cda

In issue is whether or not public respondent Court of Appeals committed

reversible error, which, in this instance, necessitates an inquiry into the facts.
While as a general rule, factual issues are not within the province of this Court,
nevertheless, in light of the conflicting findings of facts of the trial court and the
Court of Appeals, this case falls under an exception to this rule. 3
In her complaint 4 filed with the RTC on 13 March 1985, MONINA alleged that
FRANCISCO had been married to a certain Lilia Lopez Jison since 1940. At the
end of 1945 or the start of 1946, however, FRANCISCO impregnated Esperanza
F. Amolar (who was then employed as the nanny of FRANCISCO's daughter,
Lourdes). As a result, MONINA was born on 6 August 1946, in Dingle, Iloilo, and
since childhood, had enjoyed the continuous, implied recognition as an
illegitimate child of FRANCISCO by his acts and that of his family. MONINA
further alleged that FRANCISCO gave her support and spent for her education,

such that she obtained a Master's degree, became a certified public accountant
(CPA) and eventually, a Central Bank examiner. In view of FRANCISCO's refusal
to expressly recognize her, MONINA prayed for a judicial declaration of her
illegitimate status and that FRANCISCO support and treat her as such.
In his answer, 5 FRANCISCO alleged that he could not have had sexual relations
with Esperanza Amolar during the period specified in the complaint as she had
ceased to be in his employ as early as 1944, and did not know of her
whereabouts since then; further, he never recognized MONINA, expressly or
impliedly, as his illegitimate child. As affirmative and special defenses,
FRANCISCO contended that MONINA had no right or cause of action against
him and that her action was barred by estoppel, laches and/or prescription. He
thus prayed for dismissal of the complaint and an award of damages due to the
malicious filing of the complaint.
After MONINA filed her reply, 6 pre-trial was conducted where the parties
stipulated on the following issues:
1. Did Francisco Jison have any sexual relation[s] with Esperanza
Am[o]lar about the end of 1945 or the start of 1946?
2. Is Monina Jison the recognized illegitimate daughter of Francisco
Jison by the latter's own acts and those of his family?
3. Is Monina Jison barred from instituting or prosecuting the
present action by estoppel, laches and/or prescription?
4. Damages. 7
At trial on the merits, MONINA presented a total of eleven (11) witnesses,
namely: herself, Ruben Castellanes, Sr., Adela Casabuena, Arsenio Duatin,
Zafiro Ledesma, Danthea Lopez, Romeo Bilbao, Rudy Tingson, Alfredo Baylosis,
Dominador Zavariz and Lope Amolar.
Ruben Castellanes, Sr., a 63-year old resident of Iloilo City, testified that he had
worked for FRANCISCO for a total of six (6) years at Nelly Garden,
FRANCISCO's Iloilo residence. Towards the end of the Japanese occupation,
FRANCISCO's wife suffered a miscarriage or abortion, thereby depriving

FRANCISCO of consortium; thereafter, FRANCISCO's wife managed a nightclub

on the ground floor of Nelly Garden which operated daily from 6:00 p.m. till 3:00
a.m. of the following day, thereby allowing FRANCISCO free access to MONINA's
mother, Esperanza Amolar, who was nicknamed Pansay.
Adela Casabuena, a 61-year old farmer, testified that she served as
the yaya (nanny) of Lourdes from July 1946 up to February 1947.
Although Pansay had left Nelly Garden two (2) weeks before Adela started
working for the Jisons, Pansay returned sometime in September 1946, or about
one month after she gave birth to MONINA, to ask FRANCISCO for support. As a
result, Pansay and Lilia Jison, FRANCISCO's wife, quarreled in the living room,
and in the course thereof,Pansay claimed that FRANCISCO was the father of her
baby. To which, Lilia replied: "I did not tell you to make that baby so it is your
fault." During the quarrel which lasted from 10:30 till 11:00 a.m., FRANCISCO
was supposedly inside the house listening.
Arsenio Duatin, a 77-year old retired laborer, testified that from 1947 until 1977,
he worked as FRANCISCO's houseboy at the latter's house on 12th Street,
Capitol Subdivision, Bacolod City. Arsenio met MONINA in 1967, when Felipe
Lagarto, the bookkeeper at Nelly Garden, informed Arsenio that MONINA,
FRANCISCO's daughter, would arrive at Bacolod City with a letter of introduction
from Lagarto.
Initially, Arsenio identified seven (7) black-and-white photographs (Exhs. X-5 to X11) of MONINA, 8 and as he paid for the telephone bills, he likewise identified six
(6) telephone cards (Exhs. G to L). Arsenio then declared that when MONINA
arrived in Bacolod City, she introduced herself to him as FRANCISCO's daughter.
She stayed at FRANCISCO's house, but when the latter and his wife would come
over, Arsenio would "conceal the presence of MONINA because Mrs. Jison did
not like to see her face." Once, Arsenio hid MONINA in the house of
FRANCISCO's sister, Mrs. Luisa Jison Alano, in Silay City; another time, at the
residence of FRANCISCO's cousin, Mrs. Concha Lopez Cuaycong. Finally,
Arsenio declared that the last time he saw MONINA was when she left for Manila,
after having finished her schooling at La Salle College in Bacolod City.

On re-direct and upon questions by the court, Arsenio disclosed that it was
FRANCISCO who instructed that MONINA be hidden whenever FRANCISCO
and his wife were around; that although FRANCISCO and MONINA saw each
other at the Bacolod house only once, they called each other "through long
distance;" and that MONINA addressed FRANCISCO as "Daddy" during their
lone meeting at the Bacolod house and were "affectionate" to each other. Arsenio
likewise declared that MONINA stayed at FRANCISCO's Bacolod house twice:
first for a month, then for about a week the second time. On both occasions,
however, FRANCISCO and his wife were abroad. Finally, Arsenio recalled that
FRANCISCO likewise bade Arsenio to treat MONINA like his (FRANCISCO's)
other daughters.
The testimony of Zafiro Ledesma, a 74-year old banker and former mayor of Iloilo
City, initially touched on how he and his wife were related to FRANCISCO,
FRANCISCO's wife and MONINA. Zafiro first identified Exhibit R, a diagram of
the family trees of the Jison and Lopez families, which showed that former VicePresident Fernando Lopez was the first cousin of FRANCISCO's wife, then told
the court that the family of Vice-President Lopez treated MONINA "very well
because she is considered a relative . . . by reputation, by actual perception."
Zafiro likewise identified Exhibits X-13 to X-18, photographs taken at the 14 April
1985 birthday celebration of Mrs. Fernando Lopez, which showed MONINA with
the former Vice-President and other members of the Lopez family.
Zafiro further testified that while MONINA lived with Mrs. Cuaycong, the latter
paid for some of MONINA's school needs and even asked MONINA to work in a
hospital owned by Mrs. Cuaycong; and that another first cousin of FRANCISCO's
wife, a certain Remedios Lopez Franco, likewise helped MONINA with her
studies and problems, and even attended MONINA's graduation in 1978 when
she obtained a masteral degree in Business Administration, as evidenced by
another photograph (Exh. X-12). Moreover, upon Remedios' recommendation,
MONINA was employed as a secretary at Merchant Financing Company, which
was managed by a certain Danthea Lopez, the wife of another first cousin of
FRANCISCO's wife and among whose directors were Zafiro himself, his wife and
Danthea's husband. In closing, Zafiro identified MONINA's Social Security

Record (Exh. W), which was signed by Danthea as employer and where
MONINA designated Remedios as the beneficiary.
Danthea Lopez, a 58-year old housekeeper, declared that FRANCISCO was the
first cousin of her husband, Eusebio D. Lopez; and that she came to know
MONINA in the latter part of 1965 when Remedios Franco recommended
MONINA for employment at Merchant Financing Co., which Danthea managed at
that time. Remedios introduced MONINA to Danthea "as being reputedly the
daughter of Mr. Frank Jison;" and on several occasions thereafter, Remedios
made Danthea and the latter's husband understand that MONINA was "reputedly
the daughter of [FRANCISCO]." While MONINA worked at Merchant Financing,
Danthea knew that MONINA lived with Remedios; however, in the latter part of
1966, as Remedios left for Manila and MONINA was still studying at San Agustin
University, Danthea and her husband invited MONINA to live with them. During
MONINA's 6-month stay with them, she was not charged for board and lodging
and was treated as a relative, not a mere employee, all owing to what Remedios
had said regarding MONINA's filiation. As Danthea understood, MONINA
resigned from Merchant Financing as she was called by Mrs. Cuaycong, a first
cousin of Danthea's husband who lived in Bacolod City.
Romeo Bilbao, a 43-year old seaman, testified that he had worked for
FRANCISCO from 1969 up to 1980 at Nelly Garden in various capacities: as a
procurement officer, hacienda overseer and, later, as hacienda administrator.
Sometime in May, 1971, Romeo saw and heard MONINA ask "her daddy"
(meaning FRANCISCO) for the money he promised to give her, but FRANCISCO
answered that he did not have the money to give, then told MONINA to go see
Mr. Jose Cruz in Bacolod City. Then in the middle of September that year,
FRANCISCO told Romeo to pick up Mr. Cruz at the Iloilo pier and bring him to the
office of Atty. Benjamin Tirol. At said office, Atty. Tirol, Mr. Cruz and MONINA
entered a room while Romeo waited outside. When they came out, Atty. Tirol had
papers for MONINA to sign, but she refused. Atty. Tirol said that a check would
be released to MONINA if she signed the papers, so MONINA acceded, although
Atty. Tirol intended not to give MONINA a copy of the document she signed.
Thereafter, Mr. Cruz gave MONINA a check (Exh. Q), then MONINA grabbed a
copy of the document she signed and ran outside. Romeo then brought Mr. Cruz

to Nelly Garden. As to his motive for testifying, Romeo stated that he wanted to
help MONINA be recognized as FRANCISCO's daughter.

Rudy Tingson, a 45-year old antique dealer, testified that in 1963-1964, he was
employed by FRANCISCO's wife at the Baguio Military Institute in Baguio City;
then in 1965, Rudy worked at FRANCISCO's office at Nelly Garden recording
hacienda expenses, typing vouchers and office papers, and, at times, acting as
paymaster for the haciendas. From the nature of his work, Rudy knew the
persons receiving money from FRANCISCO's office, and clearly remembered
that in 1965, as part of his job, Rudy gave MONINA her allowance from
FRANCISCO four (4) times, upon instructions of a certain Mr. Lagarto to give
MONINA P15.00 a month. Rudy likewise recalled that he first met MONINA in
1965, and that she would go to Nelly Garden whenever FRANCISCO's wife was
not around. On some of these occasions, MONINA would speak with and
address FRANCISCO as "Daddy," without objection from FRANCISCO. In fact, in
1965, Rudy saw FRANCISCO give MONINA money thrice. Rudy further declared
that in April 1965, FRANCISCO's office paid P250.00 to Funeraria Bernal for the
funeral expenses of MONINA's mother. Finally, as to Rudy's motives for testifying,
he told the court that he simply wanted to help bring out the truth "and nothing but
the truth," and that MONINA's filiation was common knowledge among the people
in the office at Nelly Garden.
On re-direct, Rudy declared that the moneys given by FRANCISCO's office to
MONINA were not reflected in the books of the office, but were kept in a separate
book, as Mr. Lagarto explained that FRANCISCO's wife and children "should not
know [of] this." Rudy further revealed that as to the garden "meetings" between
FRANCISCO and MONINA, Rudy saw MONINA kiss FRANCISCO on the cheek
both upon arriving and before leaving, and FRANCISCO's reaction upon seeing
her was to smile and say in the Visayan dialect: "Kamusta ka iha?" ("How are
you, daughter?"); and that MONINA was free to go inside the house as the
household staff knew of her filiation, and that, sometimes, MONINA would join
them for lunch.

Alfredo Baylosis, a 62-year old retired accountant, testified that he worked for
FRANCISCO at Central Santos-Lopez in Iloilo from 1951 up to 1961, then at
Nelly Garden from 1961 until 1972. Alfredo first served FRANCISCO as a
bookkeeper, then when Mr. Lagarto died in 1967 or 1969, Alfredo replaced Mr.
Lagarto as office manager.
Alfredo knew MONINA since 1961 as she used to go to Nelly Garden to claim her
P15.00 monthly allowance given upon FRANCISCO's standing order. Alfredo
further declared that MONINA's filiation was pretty well-known in the office; that
he had seen MONINA and FRANCISCO go from the main building to the office,
with FRANCISCO's arm on MONINA's shoulder; and that the office paid for the
burial expenses of Pansay, but this was not recorded in the books in order to hide
it from FRANCISCO's wife. Alfredo also disclosed that the disbursements for
MONINA's allowance started in 1961 and were recorded in a separate cash
book. In 1967, the allowances ceased when MONINA stopped schooling and was
employed in Bacolod City with Miller, Cruz & Co., which served as FRANCISCO's
accountant-auditor. Once when Alfredo went to the offices of Miller, Cruz & Co. to
see the manager, Mr. Atienza, and arrange for the preparation of FRANCISCO's
income tax return, Alfredo chanced upon MONINA. When Alfredo asked her how
she came to work there, she answered that "her Daddy," FRANCISCO,
recommended her, a fact confirmed by Mr. Atienza. Alfredo then claimed that Mr.
Jose Cruz, a partner at Miller, Cruz & Co., was the most trusted man of
FRANCISCO.
Dominador Savariz, a 55-year old caretaker, testified that he worked as
FRANCISCO's houseboy at Nelly Garden from November 1953 up to 1965. One
morning in April 1954, MONINA and her mother Pansay went to Nelly Garden
and spoke with FRANCISCO for about an hour, during which time, Dominador
was vacuuming the carpet about six (6) to seven (7) meters away. Due to the
noise of the vacuum cleaner, FRANCISCO and MONINA spoke in loud voices,
thus Dominador overheard their conversation. As FRANCISCO
asked Pansay why they came, Pansay answered that they came to ask for the
"sustenance" of his child MONINA. FRANCISCO then touched MONINA's head
and asked: "How are you Hija?," to which MONINA answered: "Good morning,

Daddy." After FRANCISCO told Pansay and MONINA to wait, he pulled

something from his wallet and said to Pansay. "I am giving this for the child."
In May 1954, Dominador saw MONINA at Mr. Lagarto's office where Dominador
was to get "the day's expenses," while MONINA was claiming her allowance from
Mr. Diasnes. The next month, Dominador saw MONINA at Nelly Garden and
heard in the office that MONINA was there to get her allowance "from her Daddy."
In December 1960, Dominador saw MONINA at Nelly Garden, in the room of Don
Vicente (father of FRANCISCO's wife), where she asked for a Christmas gift "and
she was calling Don Vicente, Lolo (grandfather)." At that time, FRANCISCO and
his wife were not around. Then sometime in 1961, when Dominador went to Mr.
Lagarto's office to get the marketing expenses, Dominador saw MONINA once
more claiming her allowance.
Dominador further testified that in February 1966, after he had stopped working
for FRANCISCO, Dominador was at Mrs. Franco's residence as she
recommended him for employment with her sister, Mrs. Concha Cuaycong.
There, he saw MONINA, who was then about 15 years old, together with Mrs.
Franco's daughter and son. Mrs. Franco pointed at MONINA and asked
Dominador if he knew who MONINA was. Dominador answered that MONINA
was FRANCISCO's daughter with Pansay, and then Mrs. Franco remarked that
MONINA was staying with her (Mrs. Franco) and that she was sending MONINA
to school at the University of San Agustin.
Lope Amolar, a 50-year old resident of Dingle, Iloilo, and the younger brother of
Esperanza Amolar (Pansay), testified that he worked for FRANCISCO as a
houseboy from March to November 1945 at Nelly Garden. Thereafter,
FRANCISCO sent Lope to work at Elena Apartments in Manila. By November
1945,Pansay was also working at Elena Apartments, where she revealed to Lope
that FRANCISCO impregnated her. Lope then confronted FRANCISCO, who told
Lope "don't get hurt and don't cause any trouble, because I am willing to support
your Inday Pansay and my child." Three (3) days after this confrontation, Lope
asked for and received permission from FRANCISCO to resign because he
(Lope) was hurt.

On 21 October 1986, MONINA herself took the witness stand. At that time, she
was 40 years old and a Central Bank Examiner. She affirmed that as evidenced
by certifications from the Office of the Local Civil Registrar (Exhs. E and F) and
baptismal certificates (Exhs. C and D), she was born on 6 August 1946 in
Barangay Tabugon, Dingle, Iloilo, to Esperanza Amolar (who passed away on 20
April 1965) and FRANCISCO. 9 MONINA first studied at Sagrado where she
stayed as a boarder. While at Sagrado from 1952 until 1955 (up to Grade 4), her
father, FRANCISCO, paid for her tuition fees and other school expenses. She
either received the money from FRANCISCO or from Mr. Lagarto, or saw
FRANCISCO give money to her mother, or Mr. Lagarto would pay Sagrado
directly. After Sagrado, MONINA studied in different schools, 10 but FRANCISCO
continuously answered for her schooling.
prLL

For her college education, MONINA enrolled at the University of Iloilo, but she
later dropped due to an accident which required a week's hospitalization.
Although FRANCISCO paid for part of the hospitalization expenses, her mother
shouldered most of them. In 1963, she enrolled at the University of San Agustin,
where she stayed with Mrs. Franco who paid for MONINA's tuition fees. However,
expenses for books, school supplies, uniforms and the like were shouldered by
FRANCISCO. At the start of each semester, MONINA would show FRANCISCO
that she was enrolled, then he would ask her to canvass prices, then give her the
money she needed. After finishing two (2) semesters at University of San
Agustin, as evidenced by her transcript of records (Exh. Z showing that
FRANCISCO was listed as Parent/Guardian [Exh. Z-1]), she transferred to "De
Paul College," just in front of Mrs. Franco's house, and studied there for a year.
Thereafter, MONINA enrolled at Western Institute of Technology (WIT), where
she obtained a bachelor's degree in Commerce in April 1967. During her senior
year, she stayed with Eusebio and Danthea Lopez at Hotel Kahirup, owned by
said couple. She passed the CPA board exams in 1974, and took up an M.B.A. at
De La Salle University as evidenced by her transcript (Exh. AA), wherein
FRANCISCO was likewise listed as "Guardian" (Exhs. AA-1 and AA-2).
MONINA enumerated the different members of the household staff at Nelly
Garden, to wit: Luz, the household cook; the houseboys Silvestre and Doming;
the housemaid Natang; the yaya of the adopted triplets, Deling; the yaya

of Lolo Vicente, Adelina; and others. MONINA likewise enumerated the members
of the office staff (Messrs. Baylosis, Lagarto, Tingson, Diasnes, Jalandoni,
Supertisioso, Doroy, and others), and identified them from a photograph marked
as Exhibit X-2. She then corroborated the prior testimony regarding her
employment at Merchant Financing Co., and her having lived at Hotel Kahirup
and at Mrs. Cuaycong's residence in Bacolod City, while working at the hospital
owned by Mrs. Cuaycong.
MONINA further testified that in March 1968, she went to Manila and met
FRANCISCO at Elena Apartments at the corner of Romero and Salas Streets,
Ermita. She told FRANCISCO that she was going for a vacation in Baguio City
with Mrs. Franco's mother, with whom she stayed up to June 1968. Upon her
return from Baguio City, MONINA told FRANCISCO that she wanted to work, so
the latter arranged for her employment at Miller & Cruz in Bacolod City. MONINA
went to Bacolod City, was interviewed by Mr. Jose Cruz, a partner at Miller &
Cruz, who told her she would start working first week of
September, sans examination. She resigned from Miller & Cruz in 1971 and lived
with Mrs. Cuaycong at her Forbes Park residence in Makati. MONINA went to
see FRANCISCO, told him that she resigned and asked him for money to go to
Spain, but FRANCISCO refused as she could not speak Spanish and would not
be able find a job. The two quarreled and FRANCISCO ordered a helper to send
MONINA out of the house. In the process, MONINA broke many glasses at the
pantry and cut her hand, after which, FRANCISCO hugged her, gave her
medicine, calmed her down, asked her to return to Bacolod City and promised
that he would give her the money.

MONINA returned to Bacolod City by plane, using a Filipinas Orient Airways

plane ticket (Exh. M) which FRANCISCO gave. She called Mr. Cruz, then Atty.
Tirol, as instructed by Mr. Cruz. These calls were evidenced by PLDT long
distance toll cards (Exhs. G to L), with annotations at the back reading: "charged
and paid under the name of Frank L. Jison" and were signed by Arsenio Duatin
(Exhs. G-1 to L-1). PLDT issued a certification as to the veracity of the contents of
the toll cards (Exh. BB). Likewise introduced in evidence was a letter of

introduction prepared by Mr. Cruz addressed to Atty. Tirol, on MONINA's behalf

(Exh. N).
MONINA also declared that Atty. Tirol then told her that she would have to go to
Iloilo and sign a certain affidavit, before Mr. Cruz would turn over the money
promised by FRANCISCO. She went to Atty. Tirol's office in Iloilo, but after going
over the draft of the affidavit, refused to sign it as it stated that she was not
FRANCISCO's daughter. She explained that all she had agreed with
FRANCISCO was that he would pay for her fare to go abroad, and that since she
was a little girl, she knew about her illegitimacy. She started crying, begged Atty.
Tirol to change the affidavit, to which Atty. Tirol responded that he was also a
father and did not want this to happen to his children as they could not be blamed
for being brought into the world. She then wrote a letter (Exh. O) to FRANCISCO
and sent it to the latter's Forbes Park residence (Bauhinia Place) by JRS courier
service (Exhs. O-5 to O-7). MONINA subsequently met FRANCISCO in Bacolod
City where they discussed the affidavit which she refused to sign. FRANCISCO
told her that the affidavit was for his wife, that in case she heard about MONINA
going abroad, the affidavit would "keep her peace."
MONINA then narrated that the first time she went to Atty. Tirol's office, she was
accompanied by one Atty. Fernando Divinagracia, who advised her that the
affidavit (Exh. P) 11 would "boomerang" against FRANCISCO "as it is contrary to
law." MONINA returned to Bacolod City, then met with Atty. Tirol once more to
reiterate her plea, but Atty. Tirol did not relent. Thus, on the morning of 20 or 21
September 1971, she signed the affidavit as she was jobless and needed the
money to support herself and finish her studies. In exchange for signing the
document, MONINA received a Bank of Asia check for P15,000.00 (Exh. Q),
which was less than the P25,000.00 which FRANCISCO allegedly promised to
give. As Atty. Tirol seemed hesitant to give her a copy of the affidavit after
notarizing it, MONINA merely grabbed a copy and immediately left.
MONINA then prepared to travel abroad, for which purpose, she procured letters
of introduction (Exhs. S and T) from a cousin, Mike Alano (son of FRANCISCO's
elder sister Luisa); and an uncle, Emilio Jison (FRANCISCO's elder brother),
addressed to another cousin, Beth Jison (Emilio's daughter), for Beth to assist
MONINA. Exhibit S contained a statement (Exh. S-1) expressly recognizing that

MONINA was FRANCISCO's daughter. Ultimately though, MONINA decided not

to go abroad, opting instead to spend the proceeds of the P15,000.00 check for
her CPA review, board exam and graduate studies. After finishing her graduate
studies, she again planned to travel abroad, for which reason, she obtained a
letter of introduction from former Vice President Fernando Lopez addressed to
then United States Consul Vernon McAnnich (Exh. V).
As to other acts tending to show her filiation, MONINA related that on one
occasion, as FRANCISCO's wife was going to arrive at the latter's Bacolod City
residence, FRANCISCO called Arsenio Duatin and instructed Arsenio to hide
MONINA. Thus, MONINA stayed with Mrs. Luisa Jison for the duration of the stay
of FRANCISCO's wife. MONINA also claimed that she knew Vice President
Fernando Lopez and his wife, Mariquit, even before starting to go to school.
Thus, MONINA asked for a recommendation letter (Exh. U) from Mrs. Mariquit
Lopez for possible employment with Mrs. Rosario Lopez Cooper, another second
cousin of FRANCISCO. In Exhibit U, Mrs. Lopez expressly recognized MONINA
as FRANCISCO's daughter. As additional proof of her close relationship with the
family of Vice President Lopez, MONINA identified photographs taken at a
birthday celebration on 14 April 1985.
MONINA finally claimed that she knew the three (3) children of FRANCISCO by
wife, namely, Lourdes, Francisco, Jr. (Junior) and Elena, but MONINA had met
only Lourdes and Junior. MONINA's testimony dealt lengthily on her dealings with
Junior and the two (2) occasions when she met with Lourdes. The last time
MONINA saw FRANCISCO was in March 1979, when she sought his blessings
to get married.
In his defense, FRANCISCO offered his deposition taken before then Judge
Romeo Callejo of the Regional Trial Court of Manila Branch 48. As additional
witnesses, FRANCISCO presented Nonito Jalandoni, Teodoro Zulla, Iigo
Supertisioso, Lourdes Ledesma, Jose Cruz and Dolores Argenal.
FRANCISCO declared that Pansay's employment ceased as of October, 1944,
and that while employed by him, Pansay would sleep with the other female
helpers on the first floor of his residence, while he, his wife and daughter slept in
a room on the second floor. At that time, his household staff was composed of

three (3) female workers and two (2) male workers. After Pansay left in October
1944, she never communicated with him again, neither did he know of her
whereabouts. FRANCISCO staunchly denied having had sexual relations
with Pansay and disavowed any knowledge about MONINA's birth. In the same
vein, he denied having paid for MONINA's tuition fees, in person or otherwise,
and asserted that he never knew that Mr. Lagarto paid for these fees. Moreover,
FRANCISCO could not believe that Lagarto would pay for these fees despite
absence of instructions or approval from FRANCISCO. He likewise categorically
denied that he told anyone, be it Danthea Lopez, Zafiro Ledesma, Concha
Cuaycong or Remedios Franco, that MONINA was his daughter.
FRANCISCO also disclosed that upon his return from the United States in 1971,
he fired Alfredo Baylosis upon discovering that Alfredo had taken advantage of
his position during the former's absence. FRANCISCO likewise fired Rudy
Tingson and Romeo Bilbao, but did not give the reasons therefor.
Finally, FRANCISCO denied knowledge of MONINA's long distance calls from his
Bacolod residence; nevertheless, when he subsequently discovered this, he fired
certain people in his office for their failure to report this anomaly. As regards the
caretaker of his Bacolod residence, FRANCISCO explained that since MONINA
lived at Mrs. Cuaycong's residence, the caretaker thought that he could allow
people who lived at the Cuaycong residence to use the facilities at his
(FRANCISCO's) house.
Nonito Jalandoni, bookkeeper and paymaster at Nelly's Garden from 1963 up to
1974, then from 1980 up to 1986, the assistant overseer of Hacienda Lopez,
testified that he did not know MONINA; that he learned of her only in June 1988,
when he was informed by FRANCISCO that MONINA had sued him; and that he
never saw MONINA at Nelly's Garden, neither did he know of any instructions for
anyone at Nelly's Garden to give money to MONINA.
Teodoro Zulla, FRANCISCO's bookkeeper and paymaster from 1951 up to 1986,
testified that FRANCISCO dismissed Alfredo Baylosis due to certain unspecified
discrepancies; and that he never saw MONINA receive funds from either Mr.
Lagarto or Mr. Baylosis; Upon questions from the trial court, however, Teodoro

admitted that he prepared vouchers for only one of FRANCISCO's haciendas,

and not vouchers pertaining to the latter's personal expenses.
Iigo Supertisioso testified that he worked for FRANCISCO at Nelly's Garden
from 1964 up to 1984 as a field inspector, paymaster, cashier and, eventually,
officer-in-charge (OIC). He confirmed Alfredo Baylosis' dismissal due to these
unspecified irregularities, then denied that FRANCISCO ever ordered that
MONINA be given her allowance. Likewise, Iigo never heard FRANCISCO
mention that MONINA was his (FRANCISCO's) daughter.
Lourdes Ledesma, FRANCISCO's daughter, testified that she saw (but did not
know) MONINA at the Our Lady of Mercy Hospital, on the occasion of the birth of
Lourdes' first son, Mark. Over lunch one day, Lourdes' aunt casually introduced
Lourdes and MONINA to each other, but they were referred to only by their first
names. Then sometime in 1983 or 1984, MONINA allegedly went to Lourdes'
house in Sta. Clara Subdivision requesting for a letter of introduction or referral
as MONINA was then job-hunting. However, Lourdes did not comply with the
request.
Jose Cruz, a partner at Miller, Cruz & Co., testified that MONINA worked at Miller
& Cruz from 1968 up to 1971, however, he did not personally interview her before
she was accepted for employment. Moreover, MONINA underwent the usual
screening procedure before being hired. Jose recalled that one of the
accountants, a certain Mr. Atienza, reported that MONINA claimed to be
FRANCISCO's daughter. Jose then told Mr. Atienza to speak with MONINA and
see if he (Mr. Atienza) could stop her from spreading this rumor. Mr. Atienza
reported that he spoke with MONINA, who told him that she planned to leave for
the United States and needed P20,000.00 for that purpose, and in exchange, she
would sign a document disclaiming filiation with FRANCISCO. Thus, Jose
instructed Mr. Atienza to request that MONINA meet with Jose, and at that
meeting, MONINA confirmed Mr. Atienza's report. Jose then informed Atty. Tirol,
FRANCISCO's personal lawyer, about the matter.
Atty. Tirol told Jose to send MONINA and her lawyer to his (Atty. Tirol's) office in
Iloilo. Jose then wrote out a letter of introduction for MONINA addressed to Atty.
Tirol. Jose relayed Atty. Tirol's message to MONINA through Mr. Atienza, then

later, Atty. Tirol told Jose to go to Iloilo with a check for P15,000.00. Jose
complied, and at Atty. Tirol's office, Jose saw MONINA, Atty. Tirol and his
secretary reading some documents. MONINA then expressed her willingness to
sign the document, sans revisions. Jose alleged that he drew the P15,000.00
from his personal funds, subject to reimbursement from and due to an
understanding with FRANCISCO.

Dolores Argenal, a househelper at Nelly Garden from May 1944 up to May 1946,
testified that she knew that Pansay was Lourdes' nanny; that Lourdes slept in her
parents' room; that she had not seen FRANCISCO give special treatment
to Pansay, that there was no "unusual relationship" between FRANCISCO
andPansay, and if there was any, Dolores would have easily detected it since she
slept in the same room as Pansay. Dolores further declared that whenever
FRANCISCO's wife was out of town, Pansay would bring Lourdes downstairs at
nighttime, and that Pansay would not sleep in the room where FRANCISCO
slept. Finally, Dolores declared that Pansay stopped working for FRANCISCO
and his wife in October, 1944.
The reception of evidence having been concluded, the parties filed their
respective memoranda.
It need be recalled that Judge Catalino Castaeda, Jr. presided over trial up to 21
October 1986, thereby hearing only the testimonies of MONINA's witnesses and
about half of MONINA's testimony on direct examination. Judge Norberto E.
Devera, Jr. heard the rest of MONINA's testimony and those of FRANCISCO's
witnesses.
In its decision of 12 November 1990 12 the trial court, through Judge Devera,
dismissed the complaint with costs against MONINA. In the opening paragraph
thereof, it observed:
This is a complaint for recognition of an illegitimate child instituted by
plaintiff Monina Jison against defendant Francisco Jison. This complaint
was filed on March 13, 1985 at the time when plaintiff, reckoned from her
date of birth, was already thirty-nine years old. Noteworthy also is the
fact that it was instituted twenty years after the death of plaintiff's mother,

Esperanza Amolar. For the years between plaintiffs birth and

Esperanza's death, no action of any kind was instituted against
defendant either by plaintiff, her mother Esperanza or the latter's
parents. Neither had plaintiff brought such an action against defendant
immediately upon her mother's death on April 20, 1965, considering that
she was then already nineteen years old or, within a reasonable time
thereafter. Twenty years more had to supervene before this complaint
was eventually instituted.

The trial court then proceeded to discuss the four issues stipulated at pre-trial,
without, however, summarizing the testimonies of the witnesses nor referring
to the testimonies of the witnesses other than those mentioned in the
discussion of the issues.
The trial court resolved the first issue in the negative, holding that it was
improbable for witness Lope Amolar to have noticed that Pansay was pregnant
upon seeing her at the Elena Apartments in November 1945, since Pansay was
then only in her first month of pregnancy; that there was no positive assertion that
"copulation did indeed take place between Francisco and Esperanza;" and that
MONINA's attempt to show opportunity on the part of FRANCISCO failed to
consider "that there was also the opportunity for copulation between Esperanza
and one of the several domestic helpers admittedly also residing at Nelly's
Garden at that time." The RTC also ruled that the probative value of the birth and
baptismal certificates of MONINA paled in light of jurisprudence, especially when
the misspellings therein were considered.
The trial court likewise resolved the second issue in the negative, finding that
MONINA's evidence thereon "may either be one of three categories, namely:
hearsay evidence, incredulous evidence, or self-serving evidence." To the first
category belonged the testimonies of Adela Casabuena and Alfredo Baylosis,
whose knowledge of MONINA's filiation was based, as to the former, on
"utterances of defendant's wife Lilia and Esperanza allegedly during the heat of
their quarrel," while as to the latter, Alfredo's conclusion was based "from the
rumors going [around] that plaintiff is defendant's daughter, from his personal
observation of plaintiff's facial appearance which he compared with that of
defendant's and from the way the two (plaintiff and defendant) acted and treated

each other on one occasion that he had then opportunity to closely observe them
together." To the second category belonged that of Dominador Savariz, as:
At each precise time that Esperanza allegedly visited Nelly's Garden and
allegedly on those occasions when defendant's wife, Lilia was in Manila,
this witness was there and allegedly heard pieces of conversation
between defendant and Esperanza related to the paternity of the latter's
child. . .

The RTC then placed MONINA's testimony regarding the acts of recognition
accorded her by FRANCISCO's relatives under the third category, since the latter
were never presented as witnesses, for which reason the trial court excluded the
letters from FRANCISCO's relatives (Exhs. S to V).
As to the third issue, the trial court held that MONINA was not barred by
prescription for it was of "the perception . . . that the benefits of Article 268
accorded to legitimate children may be availed of or extended to illegitimate
children in the same manner as the Family Code has so provided;" or by laches,
"which is [a] creation of equity applied only to bring equitable results, and . . .
addressed to the sound discretion of the court [and] the circumstances [here]
would show that whether plaintiff filed this case immediately upon the death of
her mother Esperanza in 1965 or twenty years thereafter in 1985, . . . there
seems to be no inequitable result to defendant as related to the situation of
plaintiff."
The RTC ruled however, that MONINA was barred by estoppel by deed because
of the affidavit (Exh. P/Exh. 2) which she signed "when she was already twentyfive years, a professional and . . . under the able guidance of counsel."
Finally. the RTC denied FRANCISCO's claim for damages, finding that MONINA
did not file the complaint with malice, she having been "propelled by an honest
belief, founded on probable cause."
MONINA seasonably appealed to the Court of Appeals (CA-G.R. CV No. 32860)
and sought reversal of the trial court's decision on the grounds that:
I

THE TRIAL COURT WAS ERRONEOUSLY PREDISPOSED TO

ADJUDGE THIS CASE AGAINST APPELLANT DUE TO ITS
MISPERCEPTION THAT APPELLANT'S DELAY IN FILING HER
COMPLAINT WAS FATAL TO HER CASE.
II
THE TRIAL COURT ERRED IN ITS REJECTION OF THE
TESTIMONIES OF APPELLANT'S WITNESSES AS TAILOR-MADE,
INADEQUATE AND INCREDIBLE.
III
THE TRIAL COURT ERRED IN ITS REJECTION OF THE
ADMISSIBILITY OF THE CERTIFIED COPIES OF PUBLIC
DOCUMENTS PRESENTED BY APPELLANT AS PART OF HER
EVIDENCE.
IV
THE TRIAL COURT ERRED IN ITS REQUIREMENT THAT A WITNESS
TO THE ACTUAL ACT OF COPULATION BETWEEN THE APPELLEE
AND APPELLANT'S MOTHER SHOULD HAVE POSITIVELY
TESTIFIED TO SAID EFFECT.
V
THE TRIAL COURT ERRED IN REJECTING THE ADMISSIBILITY OF
THE DULY IDENTIFIED NOTES AND LETTER OF THE RELATIVES OF
THE APPELLEE AS HEARSAY.
VI
THE TRIAL COURT ERRED IN CONCLUDING THAT APPELLANT'S
AFFIDAVIT (EXH. P) SERVED AS A BAR AGAINST HER CLAIM FOR
RECOGNITION INSTEAD OF REINFORCING SAID CLAIM. 13

Expectedly, FRANCISCO refuted these alleged errors in his Appellee's Brief. 14

In its decision of 27 April 1995, 15 the Court of Appeals initially declared that as
no vested or acquired rights were affected, the instant case was governed by
Article 175, in relation to Articles 172 and 173, of the Family Code. 16 While the

Court of Appeals rejected the certifications issued by the Local Civil Registrar of
Dingle, Iloilo (Exhs. E and F) as FRANCISCO did not sign them, said court
focused its discussion on the other means by which illegitimate filiation could be
proved, i.e., the open and continuous possession of the status of an illegitimate
child or, by any other means allowed by the Rules of Court and special laws,
such as "the baptismal certificate of the child, a judicial admission, a family bible
wherein the name of the child is entered, common reputation respecting
pedigree, admission by silence, testimonies of witnesses . . ." 17 To the Court of
Appeals, the "bottom line issue" was whether or not MONINA established her
filiation as FRANCISCO's illegitimate daughter by preponderance of evidence, as
to which issue said court found:
[N]ot just preponderant but overwhelming evidence on record to prove
that [MONINA] is the illegitimate daughter of [FRANCISCO] and that she
had continuously enjoyed such status by direct acts of [FRANCISCO]
and/or his relatives.

In so ruling, the Court of Appeals observed that the testimonies of Lope Amolar,
Adela Casabuena and Dominador Savariz were already sufficient to establish
MONINA's filiation:
As adverted to earlier, the trial court discredited Lope Amolar's testimony
by saying that Lope could not have detected Esperanza's pregnant state
in November, 1945 since at that point in time [sic] she was still in the
initial stage of pregnancy. Apparently, the trial court paid more emphasis
on the date mentioned by Lope Amolar than on the tenor and import of
his testimony. As . . . Lope . . . was asked about an incident that
transpired more than 41 years back; [u]nder the circumstances, it is
unreasonable to expect that Lope could still be dead right on the specific
month in 1945 that [he] met and confronted his sister. At any rate, what is
important is not the month that they met but the essence of his testimony
that his sister pointed to their employer [FRANCISCO] as the one
responsible for her pregnancy, and that upon being confronted,
[FRANCISCO] assured him of support for Esperanza and their child. It
would appear then that in an attempt to find fault with Lope's testimony,
the trial court has fallen oblivious to the fact that even [FRANCISCO], in
his deposition, did not deny that he was confronted by Lope about what

he had done to Esperanza, during which he unequivocally

acknowledged paternity by assuring Lope of support for both Esperanza
and their child.

The Court of Appeals further noted that Casabuena and Savariz "testified on
something that they personally observed or witnessed," which matters
FRANCISCO "did not deny or refute." Finally, said court aptly held:

Taking into account all the foregoing uncontroverted testimonies . . . let

alone such circumstantial evidence as [MONINA's] Birth Certificates . . .
and Baptismal Certificates which invariably bear the name of
[FRANCISCO] as her father, We cannot go along with the trial court's
theory that [MONINA's] illegitimate filiation has not been satisfactorily
established.
xxx xxx xxx
Significantly, [MONINA's] testimony finds ample corroboration from
[FRANCISCO's] former employees, Arsenio Duatin, Rudy Tingson and
Alfredo Baylosis. . .
xxx xxx xxx
Carefully evaluating appellant's evidence on her enjoyment of the status
of an illegitimate daughter of [FRANCISCO] vis-a-vis [FRANCISCO's]
controversion thereof, We find more weight in the former. The positive
testimonies of [MONINA] and [her] witnesses . . . all bearing on
[FRANCISCO's] acts and/or conduct indubitably showing that he had
continuously acknowledged [MONINA] as his illegitimate daughter have
not been succeessfully [sic] refuted. In fact [FRANCISCO] himself, in his
deposition, only casually dismissed [MONINA's] exhaustive and detailed
testimony as untrue, and with respect to those given by [MONINA's]
witnesses, he merely explained that he had fired [them] from their
employment. Needless to state [FRANCISCO's] vague denial is grossly
inadequate to overcome the probative weight of [MONINA's] testimonial
evidence.

Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial
court . . . does not hold sway in the face of [MONINA's] logical
explanation that she at first did agree to sign the affidavit which
contained untruthful statements. In fact, she promptly complained to
[FRANCISCO] who, however explained to her that the affidavit was only
for the consumption of his spouse . . . Further the testimony of Jose Cruz
concerning the events that led to the execution of the affidavit . . . could
not have been true, for as pointed out by [MONINA], she signed the
affidavit . . . almost five months after she had resigned from the Miller,
Cruz & Co. . .
At any rate if [MONINA] were not his illegitimate daughter, it would have
been uncalled for, if not absurd, for [FRANCISCO] or his lawyer to have
secured [MONINA's] sworn statement . . . On the contrary, in asking
[MONINA] to sign the said affidavit at the cost of P15,000, [FRANCISCO]
clearly betrayed his intention to conceal or suppress his paternity of
[MONINA] . . .
In fine, We hold that [MONINA's] filiation as [FRANCISCO's] illegitimate
daughter has been conclusively established by the uncontroverted
testimonies of Lope Amolar, Adela Casabuena and Dominador Savariz
to the effect that appellee himself had admitted his paternity of the
appellee, and also by the testimonies of appellant; Arsenio Duatin,
Romeo Bilbao, Rudy Tingson and Alfredo Baylosis unerringly
demonstrating that by his own conduct or overt acts like sending
appellant to school, paying for her tuition fees, school uniforms, books,
board and lodging at the Colegio del Sagrado Corazon de Jesus,
defraying appellant's hospitalization expenses providing her with [a]
monthly allowance, paying for the funeral expenses of appellant's
mother, acknowledging appellant's paternal greetings and calling
appellant his "Hija" or child, instructing his office personnel to give
appellant's monthly allowance recommending appellant for employment
at the Miller Cruz & Co., allowing appellant to use his house in Bacolod
and paying for her long distance telephone calls, having appellant spend
her vacation in his apartment in Manila and also at his Forbes residence,
allowing appellant to use his surname in her scholastic and other records
(Exhs Z, AA, AA-1 to AA-5, W & W-5), appellee had continuously
recognized appellant as his illegitimate daughter. Added to these are the

acts of [FRANCISCO's] relatives acknowledging or treating [MONINA] as

[FRANCISCO's] daughter (Exh U) or as their relative (Exhs T & V). On
this point, witness Zafiro Ledesma, former Mayor of Iloilo city, whose
spouse belongs to the Lopez clan just like [FRANCISCO], testified that
[MONINA] has been considered by the Lopezes as a relative. He
identified pictures of the appellee in the company of the Lopezes (Exhs
X-16 & X-17). Another witness, Danthea H. Lopez, whose husband
Eusebio Lopez is appellee's first cousin, testified that appellant was
introduced to her by appellee's cousin, Remedios Lopez Franco, as the
daughter of appellee Francisco Jison, for which reason, she took her in
as [a] secretary in the Merchant's Financing Corporation of which she
was the manager, and further allowed her to stay with her family free of
board and lodging. Still on this aspect, Dominador Savariz declared that
sometime in February, 1966 appellee's relative, Ms. Remedios Lopez
Franco pointed to appellant as the daughter of appellee Francisco Jison.
Finally, the Certifications of the Local Civil Registrar of Dingle (Exhs E
and F) as well as [MONINA's] Baptismal Certificates (Exhs C & D) which
the trial court admitted in evidence as part of [MONINA's] testimony, may
serve as circumstantial evidence to further reinforce [MONINA's] claim
that she is [FRANCISCO's] illegitimate daughter by Esperanza Amolar.
True it is that a trial judge's assessment of the credibility of witnesses is
accorded great respect on appeal. But the rule admits of certain
exceptions. One such exception is where the judge who rendered the
judgment was not the one who heard the witnesses testify. [citations
omitted]. The other is where the trial court had overlooked,
misunderstood or misappreciated some facts or circumstances of weight
and substance which, if properly considered, might affect the result of
the case. [citations omitted] In the presence case, both exceptions
obtain. All of [MONINA's] witnesses . . . whose testimonies were not
given credence did not testify before the judge who rendered the
disputed judgment . . .

The Court of Appeals then decreed:

WHEREFORE, premises considered, the judgment of the trial court is
SET ASIDE and another one is hereby entered for appellant Monina

Jison, declaring her as the illegitimate daughter of appellee Francisco

Jison, and entitled to all rights and privileges granted by law.
Costs against appellee.
SO ORDERED.

His motion for reconsideration having been denied by the Court of Appeals in its
resolution of 29 March 1996, 18 FRANCISCO filed the instant petition. He urges
us to reverse the judgment of the Court of Appeals, alleging that said court
committed errors of law:
I.
. . . IN REVERSING THE DECISION OF THE TRIAL COURT AND
DECLARING PRIVATE RESPONDENT AS THE ILLEGITIMATE CHILD
OF PETITIONER, CONSIDERING [THE] IMPOSSIBILITY OF SEXUAL
CONTACT BETWEEN THE PETITIONER AND THE PRIVATE
RESPONDENTS MOTHER AT THE TIME CONCEPTION WAS
SUPPOSED TO HAVE OCCURRED.
II.
. . . IN REVERSING THE TRIAL COURT'S FINDING CONSIDERING
THAT PRIVATE RESPONDENTS TESTIMONIAL EVIDENCE OF
PATERNITY AND FILIATION IS NOT CLEAR AND CONVINCING.
III.
. . . IN GIVING CREDENCE TO DOCUMENTARY EVIDENCE
PRESENTED BY THE PRIVATE RESPONDENT AS EVIDENCE OF
FILIATION CONSIDERING THAT THE SAME ARE HEARSAY, SELFSERVING AND CANNOT BIND THE PETITIONER UNDER THE BASIC
RULES OF EVIDENCE.
IV.
. . . IN INTERPRETING THE PRIVATE RESPONDENT'S SWORN
STATEMENT (EXH. "P"/EXH. "2") IN A MANNER NOT IN
CONSONANCE WITH THE RULINGS OF THE HONORABLE
SUPREME COURT.

V.
. . . IN NOT CONSIDERING THE LONG AND UNEXPLAINED DELAY IN
THE FILING OF THE PRESENT PATERNITY SUIT AS EQUIVALENT
TO LACHES.

As regards the first error, FRANCISCO insists that taking into account the second
paragraph of MONINA's complaint wherein she claimed that he and Pansayhad
sexual relations "by about the end of 1945 or the start of 1946," it was physically
impossible for him and Pansay to have had sexual contact which resulted in
MONINA's birth, considering that:
The normal period of human pregnancy is nine (9) months. If as claimed
by private respondent in her complaint that her mother was impregnated
by FRANCISCO "at the end of 1945 or the start of 1946", she would
have been born sometime in late September or early October and not
August 6, 1946 . . . The instant case finds factual and legal parallels
in Constantino vs. Mendez, 19 thus: . . .

FRANCISCO further claims that his testimony that Pansay was no longer
employed by him at the time in question was unrebutted, moreover, other men
had access to Pansay during the time of or even after her employment by him.
As to the second error, FRANCISCO submits that MONINA's testimonial
evidence is "shaky, contradictory and unreliable," and proceeds to attack the
credibility of her witnesses by claiming, in the main, that: (a) Lope Amolar could
not have detected Pansay's pregnancy in November 1945 when they met since
she would have been only one (1) month pregnant then; (b) Dominador Savariz
did not in fact witness the meeting between FRANCISCO, Pansay and MONINA;
(c) Zafiro Ledesma had an ulterior motive in testifying for MONINA as he owned a
bank in Iloilo which was then under Central Bank supervision and MONINA was
the Bank Examiner assigned to Iloilo; and (d) Danthea Lopez was not related to
him by blood and whatever favorable treatment MONINA received from Danthea
was due to the former's employment at Merchants' Financing Company and
additional services rendered at Kahirup Hotel; besides, Danthea admitted that
she had no personal knowledge as to the issue of paternity and filiation of the
contending parties, hence Sections 39 and 40 20 of Rule 130 of the Rules of

Court did not come into play. FRANCISCO likewise re-echoes the view of the trial
court as regards the testimonies of Adela Casabuena and Alfredo Baylosis.
FRANCISCO further asserts that MONINA's testimony that he answered for her
schooling was self-serving and uncorroborated by any receipt or other
documentary evidence; and assuming he did, such should be interpreted as a
manifestation of kindness shown towards the family of a former household helper.

Anent the treatment given by his relatives to MONINA as his daughter,

FRANCISCO points to the fact that Pansay was the former laundrywoman of Mrs.
Franco; MONINA resided with the families of Eusebio Lopez and Concha
Cuaycong because she was in their employ at Kahirup Hotel and Our Lady of
Mercy Hospital, respectively; MONINA failed to present Mrs. Franco, Eusebio
Lopez and Mrs. Cuaycong; and MONINA's employment at the accounting firm of
Miller, Cruz & Co. was attributable to her educational attainment, there being
absolutely no evidence to prove that FRANCISCO ever facilitated her
employment thereat. Hence, in light of Baluyot v. Baluyot, 21 the quantum of
evidence to prove paternity by clear and convincing evidence, not merely a
preponderance thereof, was not met.
With respect to the third assigned error, FRANCISCO argues that the Court of
Appeals' reliance on the certifications of the Local Civil Registrar (Exhs. E and F)
and Baptismal Certificates (Exhs. C and D) as circumstantial evidence is
misplaced. First, their genuineness could not be ascertained as the persons who
issued them did not testify. Second, in light of Reyes v. Court of Appeals, 22 the
contents of the baptismal certificates were hearsay, as the data was based only
on what was told to the priest who solemnized the baptism, who likewise was not
presented as a witness. Additionally, the name of the father appearing therein
was "Franque Jison," which was not FRANCISCO's name. Third, in both Exhibits
E and F, the names of the child's parents were listed as "Frank Heson" and
"Esperanza Amador" (not Amolar). FRANCISCO further points out that in Exhibit
F, the status of the child is listed as "legitimate," while the father's occupation as
"laborer." Most importantly, there was no showing that FRANCISCO signed
Exhibits E and F or that he was the one who reported the child's birth to the

Office of the Local Civil Registrar. As to MONINA's educational records,

FRANCISCO invokes Baas v. Baas 23 which recognized that school records
are prepared by school authorities, not by putative parents, thus incompetent to
prove paternity. And, as to the photographs presented by MONINA, FRANCISCO
cites Colorado v. Court of Appeals, 24 and further asserts that MONINA did not
present any of the persons with whom she is seen in the pictures to testify
thereon; besides these persons were, at best, mere second cousins of
FRANCISCO. He likewise assails the various notes and letters written by his
relatives (Exhs. S to V) as they were not identified by the authors. Finally, he
stresses that MONINA did not testify as to the telephone cards (Exhs. G to L) nor
did these reveal the circumstances surrounding the calls she made from his
residence.
Anent the fourth assigned error, FRANCISCO contends that the Court of
Appeals' interpretation of MONINA's affidavit of 21 September 1971 ran counter
toDequito v. Llamas, 25 and overlooked that at the time of execution, MONINA
was more than 25 years old and assisted by counsel.
As to the last assigned error, FRANCISCO bewails the Court of Appeals' failure
to consider the long and unexplained delay in the filing of the case.
In her comment, MONINA forcefully refuted FRANCISCO's arguments, leading
FRANCISCO to file his reply thereto.
On 20 November 1996, we gave due course to this petition and required the
parties to submit their respective memoranda, which they subsequently did.
A painstaking review of the evidence and arguments fails to support petitioner.
Before addressing the merits of the controversy, we first dispose of preliminary
matters relating to the applicable law and the guiding principles in paternity suits.
As to the former, plainly, the Family Code of the Philippines (Executive Order No.
209) governs the present controversy. As correctly cited by the Court of
Appeals, Uyguangco 26 served as a judicial confirmation of Article 256 of
the Family Code 27 regarding its retroactive effect unless there be impairment of
vested rights, which does not hold true here, it appearing that neither the putative

parent nor the child has passed away and the former having actually resisted the
latter's claim below.
Under Article 175 of the Family Code, illegitimate filiation, such as MONINA's,
may be established in the same way and on the same evidence as that of
legitimate children. Article 172 thereof provides the various forms of evidence by
which legitimate filiation is established, thus:
Art. 172. 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 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.

This Article reproduces, with amendments, Articles 265, 266 and 267 of the
Civil Code.
For the success of an action to establish illegitimate filiation under the second
paragraph, which MONINA relies upon given that she has none of the evidence
mentioned in the first paragraph, a "high standard of proof" 28 is required.
Specifically, 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. Such acts must be of such a nature that they reveal not only the
conviction of paternity, but also the apparent desire to have and treat the child as
such in all relations in society and in life, not accidentally, but continuously. 29

By "continuous" is meant uninterrupted and consistent, but does not require any
particular length of time. 30
The foregoing standard of proof required to establish one's filiation is founded on
the principle that an order for recognition and support may create an
unwholesome atmosphere or may be an irritant in the family or lives of the
parties, so that it must be issued only if paternity or filiation is established by clear
and convincing evidence. 31
The foregoing discussion, however, must be situated within the general rules on
evidence, in light of the burden of proof in civil cases, i.e., preponderance of
evidence, and the shifting of the burden of evidence in such cases. Simply put,
he who alleges the affirmative of the issue has the burden of proof, and upon the
plaintiff in a civil case, the burden of proof never parts. However, in the course of
trial in a civil case, once plaintiff makes out a prima facie case in his favor, the
duty or the burden of evidence shifts to defendant to controvert plaintiff's prima
facie case, otherwise, a verdict must be returned in favor of plaintiff. Moreover, in
civil cases, the party having the burden of proof must produce a preponderance
of evidence thereon, with plaintiff having to rely on the strength of his own
evidence and not upon the weakness of the defendant's. The concept of
"preponderance of evidence" refers to evidence which is of greater weight, or
more convincing, that which is offered in opposition to it; at bottom, it means
probability of truth. 32
With these in mind, we now proceed to resolve the merits of the instant
controversy.
FRANCISCO's arguments in support of his first assigned error deserve scant
consideration. While it has been observed that unlawful intercourse will not be
presumed merely from proof of an opportunity for such indulgence, 33 this does
not favor FRANCISCO. Akin to the crime of rape where, in most instances, the
only witnesses to the felony are the participants in the sexual act themselves, in
deciding paternity suits, the issue of whether sexual intercourse actually occurred
inevitably redounds to the victim's or mother's word, as against the accused's or
putative father's protestations. In the instant case, MONINA's mother could no
longer testify as to the fact of intercourse, as she had, unfortunately, passed away

long before the institution of the complaint for recognition. But this did not mean
that MONINA could no longer prove her filiation. The fact of her birth and her
parentage may be established by evidence other than the testimony of her
mother. The paramount question then is whether MONINA's evidence is
coherent, logical and natural. 34
The complaint stated that FRANCISCO had carnal knowledge of Pansay "by
about the end of 1945." We agree with MONINA that this was broad enough to
cover the fourth quarter of said year, hence her birth on 6 August 1946 could still
be attributed to sexual relations between FRANCISCO and MONINA's mother. In
any event, since it was established that her mother was still in the employ of
FRANCISCO at the time MONINA was conceived as determined by the date of
her birth, sexual contact between FRANCISCO and MONINA's mother was not at
all impossible, especially in light of the overwhelming evidence, as hereafter
shown, that FRANCISCO fathered MONINA, has recognized her as his daughter
and that MONINA has been enjoying the open and continuous possession of the
status as FRANCISCO's illegitimate daughter.
We readily conclude that the testimonial evidence offered by MONINA, woven by
her narration of circumstances and events that occurred through the years,
concerning her relationship with FRANCISCO, coupled with the testimonies of
her witnesses, overwhelmingly established the following facts:
1) FRANCISCO is MONINA's father and she was conceived at the
time when her mother was in the employ of the former;
2) FRANCISCO recognized MONINA as his child through his overt
acts and conduct which the Court of Appeals took pains to
enumerate, thus:

[L]ike sending appellant to school, paying for her tuition fees,

school uniforms, books, board and lodging at the Colegio del
Sagrado de Jesus, defraying appellant's hospitalization expenses,
providing her with [a] monthly allowance, paying for the funeral
expenses of appellant's mother, acknowledging appellant's
paternal greetings and calling appellant his "Hija" or Child,

instructing his office personnel to give appellant's monthly

allowance, recommending appellant for employment at the Miller,
Cruz & Co., allowing appellant to use his house in Bacolod and
paying for her long distance telephone calls, having appellant
spend her vacation in his apartment in Manila and also at his
Forbes residence, allowing appellant to use his surname in her
scholastic and other records (Exhs Z, AA, AA-1 to AA-5, W & W5) . . .

3) Such recognition has been consistently shown and manifested

throughout the years publicly, 35 spontaneously, continuously
and in an uninterrupted manner. 36
Accordingly, in light of the totality of the evidence on record, the second assigned
error must fail.
There is some merit, however, in the third assigned error against the probative
value of some of MONINA's documentary evidence.
MONINA's reliance on the certification issued by the Local Civil Registrar
concerning her birth (Exhs. E and F) is clearly misplaced. It is settled that a
certificate of live birth purportedly identifying the putative father is not competent
evidence as to the issue of paternity, when there is no showing that the putative
father had a hand in the preparation of said certificates, and the Local Civil
Registrar is devoid of authority to record the paternity of an illegitimate child upon
the information of a third person. 37 Simply put, if the alleged father did not
intervene in the birth certificate, e. g., supplying the information himself, the
inscription of his name by the mother or doctor or registrar is null and void; the
mere certificate by the registrar without the signature of the father is not proof of
voluntary acknowledgment on the latter's part. 38 In like manner, FRANCISCO's
lack of participation in the preparation of the baptismal certificates (Exhs. C and
D) and school records (Exhs. Z and AA) renders these documents incompetent
to prove paternity, the former being competent merely to prove the administration
of the sacrament of baptism on the date so specified. 39 However, despite the
inadmissibility of the school records per se to prove paternity, they may be
admitted as part of MONINA's testimony to corroborate her claim that
FRANCISCO spent for her education.

We likewise disagree with the ruling of the Court of Appeals that the certificates
issued by the Local Civil Registrar and the baptismal certificates may be taken as
circumstantial evidence to prove MONINA's filiation. Since they are per
se inadmissible in evidence as proof of such filiation, they cannot be admitted
indirectly as circumstantial evidence to prove the same.
As to Exhibits "S," "T," "U" and "V," the various notes and letters written by
FRANCISCO's relatives, namely Mike Alano, Emilio Jison, Mariquit Lopez and
Fernando Lopez, respectively, allegedly attesting to MONINA's filiation, while
their due execution and authenticity are not in issue, 40 as MONINA witnessed
the authors signing the documents, nevertheless, under Rule 130, Section 39,
the contents of these documents may not be admitted, there being no showing
that the declarants-authors were dead or unable to testify, neither was the
relationship between the declarants and MONINA shown by evidence other than
the documents in question. 41 As to the admissibility of these documents under
Rule 130, Section 40, however, this requires further elaboration.
Rule 130, Section 40, provides:
Section 40. Family reputation or tradition regarding pedigree. The
reputation or tradition existing in a family previous to the controversy, in
respect to the pedigree of any one of its members, may be received in
evidence if the witness testifying thereon be also a member of the family,
either by consanguinity or affinity. Entries in family bibles or other family
books or charts, engravings on rings, family portraits and the like, may
be received as evidence of pedigree. (emphasis supplied)

It is evident that this provision may be divided into two (2) parts: the portion
containing the first underscored clause which pertains to testimonial evidence,
under which the documents in question may not be admitted as the authors
thereof did not take the witness stand; and the section containing the second
underscored phrase. What must then be ascertained is whether Exhibits S to V,
as private documents, fall within the scope of the clause "and the like" as
qualified by the preceding phrase "[e]ntries in family bibles or other family books
or charts, engravings on rights [and] family portraits."

We hold that the scope of the enumeration contained in the second portion of this
provision, in light of the rule of ejusdem generis, is limited to objects which are
commonly known as "family possessions," or those articles which represent, in
effect, a family's joint statement of its belief as to the pedigree of a
person. 42 These have been described as objects "openly exhibited and well
known to the family," 43 or those "which, if preserved in a family, may be regarded
as giving a family tradition." 44 Other examples of these objects which are
regarded as reflective of a family's reputation or tradition regarding pedigree are
inscriptions on tombstones, 45 monuments or coffin plates. 46
Plainly then, Exhibits S to V, as private documents not constituting "family
possessions" as discussed above, may not be admitted on the basis of Rule 130,
Section 40. Neither may these exhibits be admitted on the basis of Rule 130,
Section 41 regarding common reputation, 47 it having been observed that:
[T]he weight of authority appears to be in favor of the theory that it is the
general repute, the common reputation in the family, and not the
common reputation in community, that is a material element of evidence
going to establish pedigree. . . [Thus] matters of pedigree may be proved
by reputation in the family, and not by reputation in the neighborhood or
vicinity, except where the pedigree in question is marriage which may be
proved by common reputation in the community. 48

Their inadmissibility not withstanding, Exhibits "S" to "V," inclusive, may, in like
manner as MONINA's school records, properly be admitted as part of her
testimony to strengthen her claim that, indeed, relatives of FRANCISCO
recognized her as his daughter.
We now direct our attention to MONINA's 21 September 1971 affidavit (Exh.
P/Exh. 2), subject of the fourth assigned error, where she attests that
FRANCISCO is not her father. MONINA contends that she signed it under
duress, i.e., she was jobless, had no savings and needed the money to support
herself and finish her studies. Moreover, she signed Exhibit P upon the advice of
Atty. Divinagracia that filiation could not be waived and that FRANCISCO's ploy
would "boomerang" upon him. On the other hand, FRANCISCO asserts that full
credence should be afforded Exhibit P. as MONINA was already 25 years old at
the time of its execution and was advised by counsel; further, being a notarized

document, its genuineness and due execution could not be questioned. He relies
on the testimony of Jose Cruz, a partner at the accounting firm of Miller & Cruz,
who declared that he intervened in the matter as MONINA was spreading rumors
about her filiation within the firm, which might have had deleterious effects upon
the relationship between the firm and FRANCISCO.
cdphil

On this issue, we find for MONINA and agree with the following observations of
the Court of Appeals:
Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial
court . . . does not hold sway in the face of [MONINA's] logical
explanation that she at first did agree to sign the affidavit which
contained untruthful statements. In fact, she promptly complained to
[FRANCISCO] who, however explained to her that the affidavit was only
for the consumption of his spouse . . .
At any rate, if [MONINA] were not his illegitimate daughter, it would have
been uncalled for, if not absurd, for [FRANCISCO] or his lawyer to have
secured [MONINA's] sworn statement . . . On the contrary, in asking
[MONINA] to sign the said affidavit at the cost of P15,000, [FRANCISCO]
clearly betrayed his intention to conceal or suppress his paternity of
[MONINA]. . .

Indeed, if MONINA were truly not FRANCISCO's illegitimate daughter, it would

have been unnecessary for him to have gone to such great lengths in order that
MONINA denounce her filiation. For as clearly established before the trial court
and properly appreciated by the Court of Appeals, MONINA had resigned from
Miller & Cruz five (5) months prior to the execution of the sworn statement in
question, hence negating FRANCISCO's theory of the need to quash rumors
circulating within Miller & Cruz regarding the identity of MONINA's father. Hence,
coupled with the assessment of the credibility of the testimonial evidence of the
parties discussed above, it is evident that the standard to contradict a notarial
document, i.e., clear and convincing evidence and more than merely
preponderant, 49 has been met by MONINA.
Plainly then, the burden of evidence fully shifted to FRANCISCO.

Two (2) glaring points in FRANCISCO's defense beg to be addressed: First, that
his testimony was comprised of mere denials, rife with bare, unsubstantiated
responses such as "That is not true," "I do not believe that," or "None that I
know." In declining then to lend credence to FRANCISCO's testimony, we resort
to a guiding principle in adjudging the credibility of a witness and the truthfulness
of his statements, laid down as early as 1921:
The experience of courts and the general observation of humanity teach
us that the natural limitations of our inventive faculties are such that if a
witness undertakes to fabricate and deliver in court a false narrative
containing numerous details, he is almost certain to fall into fatal
inconsistencies, to make statements which can be readily refuted, or to
expose in his demeanor the falsity of his message.

For this reason it will be found that perjurers usually confine themselves
to the incidents immediately related to the principal fact about which they
testify, and when asked about collateral facts by which their truthfulness
could be tested, their answers not infrequently take the stereotyped form
of such expressions as "I don't know" or "I don't remember." . . . 50

Second, the reasons for the dismissals of Tingson, Baylosis and Savariz were
unspecified or likewise unsubstantiated, hence FRANCISCO's attempt to prove
ill-motive on their part to falsely testify in MONINA's favor may not succeed. As
may be gleaned, the only detail which FRANCISCO could furnish as to the
circumstances surrounding the dismissals of his former employees was that
Baylosis allegedly "took advantage of his position" while FRANCISCO was in the
United States. But aside from this bare claim, FRANCISCO's account is barren,
hence unable to provide the basis for a finding of bias against FRANCISCO on
the part of his former employees.
As to FRANCISCO's other witnesses, nothing substantial could be obtained
either. Nonito Jalandoni avowed that he only came to know of MONINA in June
1988; 51 that during his employment at Nelly Garden from 1963 up to 1974, he
did not recall ever having seen MONINA there, neither did he know of any
instructions from FRANCISCO nor Mr. Lagarto FRANCISCO's office manager
before passing away) regarding the disbursement of MONINA's

allowance. 52Teodoro Xulla corroborated Jalandoni's testimony regarding not

having seen MONINA at Nelly Garden and MONINA's allowance; declared that
Alfredo Baylosis was dismissed due to discrepancies discovered after an audit,
without any further elaboration, however; but admitted that he never prepared the
vouchers pertaining to FRANCISCO's personal expenses, merely those intended
for one of FRANCISCO's haciendas. 53 Then, Iigo Superticioso confirmed that
according to the report of a certain Mr. Atienza, Baylosis "was dismissed by Mr.
Jison for irregularities," while Superticioso was informed by FRANCISCO that
Tingson was dismissed for loss of confidence. Superticioso likewise denied that
MONINA received money from FRANCISCO's office, neither was there a
standing order from FRANCISCO to release funds to her. 54
It is at once obvious that the testimonies of these witnesses for FRANCISCO are
likewise insufficient to overcome MONINA's evidence. The former merely consist
of denials as regards the latter's having gone to Nelly Garden or having received
her allowance from FRANCISCO's office, which, being in the form of negative
testimony, necessarily stand infirm as against positive testimony; 55 bare
assertions as regards the dismissal of Baylosis; ignorance of FRANCISCO's
personal expenses incapable of evincing that FRANCISCO did not provide
MONINA with an allowance; or hearsay evidence as regards the cause for the
dismissals of Baylosis and Tingson. But what then serves as the coup de grace is
that despite Superticioso's claim that he did not know MONINA, 56 when
confronted with Exhibit H, a telephone toll ticket indicating that on 18 May 1971,
MONINA called a certain "Eing" at FRANCISCO's office, Superticioso admitted
that his nickname was "Iing" and that there was no other person named "Iing"
in FRANCISCO's office. 57
All told, MONINA's evidence hurdled "the high standard of proof" required for the
success of an action to establish one's illegitimate filiation when relying upon the
provisions regarding "open and continuous possession" or "any other means
allowed by the Rules of Court and special laws;" moreover, MONINA proved her
filiation by more than mere preponderance of evidence.
The last assigned error concerning laches likewise fails to convince. The
essential elements of laches are: (1) conduct on the part of the defendant, or of
one under whom he claims, giving rise to the situation of which the complaint

seeks a remedy; (2) delay in asserting the complainant's rights, the complainant
having had knowledge or notice of the defendant's conduct as having been
afforded an opportunity to institute a suit; (3) lack of knowledge or notice on the
part of the defendant that the complaint would assert the right in which he bases
his suit; and (4) injury or prejudice to the defendant in the event relief is accorded
to the complainant, or the suit is not held barred. 58 The last element is the origin
of the doctrine that stale demands apply only where by reason of the lapse of
time it would be inequitable to allow a party to enforce his legal rights. 59
As FRANCISCO set up laches as an affirmative defense, it was incumbent upon
him to prove the existence of its elements. However, he only succeeded in
showing MONINA's delay in asserting her claim, but miserably failed to prove the
last element. In any event, it must be stressed that laches is based upon grounds
of public policy which requires, for the peace of society, the discouragement of
stale claims, and is principally a question of the inequity or unfairness of
permitting a right or claim to be enforced or asserted. There is no absolute rule
as to what constitutes laches; each case is to be determined according to its
particular circumstances. The question of laches is addressed to the sound
discretion of the court, and since it is an equitable doctrine, its application is
controlled by equitable considerations. It cannot be worked to defeat justice or to
perpetuate fraud and injustice. 60 Since the instant case involves paternity and
filiation, even if illegitimate, MONINA filed her action well within the period
granted her by a positive provision of law. A denial then of her action on ground
of laches would clearly be inequitable and unjust.
WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby DENIED
and the challenged decision of the Court of Appeals of 27 April 1990 in CA-G.R.
CV No. 32860 is Affirmed.
Costs against petitioner.

SECOND DIVISION
[G.R. No. 122906. February 7, 2002.]
DINAH B. TONOG, petitioner, vs. COURT OF APPEALS and
EDGAR V. DAGUIMOL, respondents.
Ponce Enrile Reyes & Manalastas for petitioner.
Pacifico B. Tacub & Associates for private respondent.
SYNOPSIS
Gardin Faith is the illegitimate child of petitioner and private respondent who was
born on September 23, 1989. A year after the child's birth, petitioner left for
abroad leaving Gardin Faith in the care of private respondent. On January 10,
1992, private respondent filed a petition for guardianship over Gardin Faith and
was appointed guardian of the child. When petitioner filed a petition for relief from
judgment the trial court set aside its original judgment and allowed petitioner to
file her opposition. Petitioner moved to remand custody of Gardin Faith to her.
The same was granted by the trial court. In a petition forcertiorari filed by private
respondent, the appellate court gave custody of Gardin Faith to private
respondent with whom the said child had been living since birth. Petitioner
appealed.
It was held that in custody disputes, the welfare and well-being of the child is the
paramount criterion. Thus, the temporary custody of the child should be retained
by private respondent; that parents and individuals exercising parental authority
over their unemancipated children are entitled to keep them in their company;
that although mothers are presumed to be the best custodian of unemancipated
children, the role of the fathers is not denigrated in the upbringing of children; and
that in a petition for review, the issue of whether the mother is a fit parent, a
question of fact, cannot be properly entertained. The same should be threshed
out in the special proceedings before the trial court.

DECISION
DE LEON, JR., J
Before us is a petition for review on certiorari seeking the reversal of two (2)
Resolutions dated August 29, 1995 and November 29, 1995 issued by the former
Second Division 1 of the Court of Appeals in CA-G.R. SP No. 35971. The first
resolution modified the appellate court's decision promulgated in the said case,
and granted custody of the minor, Gardin Faith Belarde Tonog, to private
respondent. The second resolution denied petitioner's motion for reconsideration.
The pertinent facts are:
On September 23, 1989, petitioner Dinah B. Tonog gave birth 2 to Gardin Faith
Belarde Tonog, her illegitimate daughter with private respondent Edgar V.
Daguimol. Petitioner was then a nursing student while private respondent was a
licensed physician. They cohabited for a time and lived with private respondent's
parents and sister in the latter's house in Quezon City where the infant, Gardin
Faith, was a welcome addition to the family.
A year after the birth of Gardin Faith, petitioner left for the United States of
America where she found work as a registered nurse. Gardin Faith was left in the
care of her father (private respondent herein) and paternal grandparents.
On January 10, 1992, private respondent filed a petition for guardianship over
Gardin Faith, docketed as Sp. Proc. No. Q-92-11053, in the Regional Trial Court
of Quezon City. On March 9, 1992, the trial court rendered judgment appointing
private respondent as legal guardian of the minor, Gardin Faith.
Petitioner avers that she learned of the judgment of the trial court rendered in Sp.
Proc. No. Q-92-11053 only on April 1, 1992. Accordingly, on May 27, 1992, she
filed a petition for relief from judgment. In a resolution dated September 15, 1992,
the trial court set aside its original judgment and allowed petitioner to file her
opposition to private respondent's petition. The latter, in turn, filed a motion for
reconsideration. In a related incident, petitioner filed on October 4, 1993, a
motion to remand custody of Gardin Faith to her.

On November 18, 1994, the trial court issued a resolution denying private
respondent's motion for reconsideration and granting petitioner's motion for
custody of their child, Gardin. Petitioner moved for immediate execution of the
said resolution.
Due to the adverse turn of events, private respondent filed a petition
for certiorari before the Court of Appeals, docketed as CA-G.R. SP No. 35971,
questioning the actuations of the trial court. On March 21, 1995, the appellate
court dismissed the petition on the ground of lack of merit. However, after private
respondent filed a motion for reconsideration, the appellate court issued a
Resolution 3 dated August 29, 1995 modifying its decision, as follows:
Although We do find the Petition dismissible, insofar as it assails the
September 15, 1993 Resolution of the respondent Court, giving due
course to private respondent's Petition for Relief from Judgment, and the
November 18, 1995 Resolution denying his Motion for Reconsideration,
We discern a good ground to let physical custody of subject child, Gardin
Faith Belarde Tonog, continue under the petitioner, with whom the said
child had been living, since birth.

While it is understandable for private respondent, as mother, to assert

and seek enforcement of her legal and natural rights as the natural
guardian of her child, the emotional and psychological effects upon the
latter of a change in custody should be considered. To be sure, transfer
of custody of the child from petitioner to private respondent will be painful
for the child who, all her life, has been in the company of petitioner and
her paternal grandparents.
Now, inasmuch as the issue of guardianship and custody over the same
child is still pending determination before the respondent Court, the
possibility of petitioner's appointment as the guardian cannot be
discounted. It would certainly wreak havoc on the child's psychological
make-up to give her to the custody of private respondent, only to return
her to petitioner should the latter prevail in the main case. Subjecting the
child to emotional seesaw should be avoided. It is thus more prudent to
let physical custody of the child in question be with petitioner until the
matter of her custody shall have been determined by final judgment.

WHEREFORE, the Decision, promulgated here on March 21, 1995 is

accordingly MODIFIED, and status quo with respect to the physical
custody of the child, Gardin Faith Belarde Tonog, is ordered. It is
understood that the latter shall remain with petitioner until otherwise
adjudged.

Petitioner thus interposed the instant appeal after the appellate court denied her
motion for reconsideration in its Resolution 4 dated November 29, 1995.
Petitioner contends that she is entitled to the custody of the minor, Gardin Faith,
as a matter of law. First, as the mother of Gardin Faith, the law confers parental
authority upon her as the mother of the illegitimate minor. Second, Gardin Faith
cannot be separated from her since she had not, as of then, attained the age of
seven. Employing simple arithmetic however, it appears that Gardin Faith is now
twelve years old.
In custody disputes, it is axiomatic that the paramount criterion is the welfare and
well-being of the child. 5 In arriving at its decision as to whom custody of the
minor should be given, the court must take into account the respective resources
and social and moral situations of the contending parents. 6
In turn, the parents' right to custody over their children is enshrined in law. Article
220 of the Family Code thus provides that parents and individuals exercising
parental authority over their unemancipated children are entitled, among other
rights, "to keep them in their company." In legal contemplation, the true nature of
the parent-child relationship encompasses much more than the implication of
ascendancy of one and obedience by the other. We explained this in Santos,
Sr. v. Court of Appeals: 7
The right of custody accorded to parents springs from the exercise of
parental authority. Parental authority or patria potestas in Roman Law is
the juridical institution whereby parents rightfully assume control and
protection of their unemancipated children to the extent required by the
latter's needs. It is a mass of rights and obligations which the law grants
to parents for the purpose of the children's physical preservation and
development, as well as the cultivation of their intellect and the education
of their heart and senses. 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 children's 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.

Statute sets certain rules to assist the court in making an informed

decision. Insofar as illegitimate children are concerned, Article 176 of the Family
Code provides that illegitimate children shall be under the parental authority of
their mother. Likewise, Article 213 of the Family Code provides that "[n]o child
under seven years of age shall be separated from the mother, unless the court
finds compelling reasons to order otherwise." It will be observed that in both
provisions, a strong bias is created in favor of the mother. This is specially evident
in Article 213 where it may be said that the law presumes that the mother is the
best custodian. As explained by the Code Commission:
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 mother's 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. 8

This is not intended, however, to denigrate the important role fathers play in
the upbringing of their children. Indeed, we have recognized that both parents
"complement each other in giving nurture and providing that holistic care
which takes into account the physical, emotional, psychological, mental, social

and spiritual needs of the child." 9 Neither does the law nor jurisprudence
intend to downplay a father's sense of loss when he is separated from his
child:
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. 10

For these reasons, even a mother may be deprived of the custody of her child
who is below seven years of age for "compelling reasons." Instances of
unsuitability are neglect, abandonment, unemployment and immorality, habitual
drunkenness, drug addiction, maltreatment of the child, insanity, and affliction
with a communicable illness. 11 If older than seven years of age, a child is
allowed to state his preference, but the court is not bound by that choice. The
court may exercise its discretion by disregarding the child's preference should the
parent chosen be found to be unfit, in which instance, custody may be given to
the other parent, or even to a third person. 12
In the case at bar, we are being asked to rule on the temporary custody of the
minor, Gardin Faith, since it appears that the proceedings for guardianship before
the trial court have not been terminated, and no pronouncement has been made
as to who should have final custody of the minor. Bearing in mind that the welfare
of the said minor as the controlling factor, we find that the appellate court did not
err in allowing her father (private respondent herein) to retain in the meantime
parental custody over her. Meanwhile, the child should not be wrenched from her
familiar surroundings, and thrust into a strange environment away from the
people and places to which she had apparently formed an attachment.
Moreover, whether a mother is a fit parent for her child is a question of fact to be
properly entertained in the special proceedings before the trial court. 13 It should
be recalled that in a petition for review on certiorari, we rule only on questions of
law. We are not in the best position to assess the parties' respective merits vis-avis their opposing claims for custody. Yet another sound reason is that inasmuch
as the age of the minor, Gardin Faith, has now exceeded the statutory bar of

seven years, a fortiori, her preference and opinion must first be sought in the
choice of which parent should have the custody over her person.
A word of caution: our pronouncement here should not be interpreted to imply a
preference toward the father (herein private respondent) relative to the final
custody of the minor, Gardin Faith. Nor should it be taken to mean as a
statement against petitioner's fitness to have final custody of her said minor
daughter. It shall be only understood that, for the present and until finally
adjudged, temporary custody of the subject minor should remain with her father,
the private respondent herein pending final judgment of the trial court in Sp. Proc.
No. Q-92-11053.
caCEDA

WHEREFORE, the instant petition is hereby DENIED. The trial court is directed
to immediately proceed with hearing Sp. Proc. No. Q-92-11053 upon notice of
this decision. No pronouncement as to costs.
SO ORDERED.
Bellosillo, Mendoza and Buena, JJ., concur.
Quisumbing, J., is abroad on official leave.
|||

(Tonog v. Court of Appeals, G.R. No. 122906, [February 7, 2002], 427 PHIL
1-10)

FIRST DIVISION
[G.R. No. 175080. November 24, 2010.]
EUGENIO R. REYES, joined by TIMOTHY JOSEPH M. REYES,
MA. GRACIA S. REYES, ROMAN GABRIEL M. REYES, and MA.
ANGELA S. REYES,petitioners, vs. LIBRADA F. MAURICIO
(deceased) and LEONIDA F. MAURICIO, respondents.
DECISION
PEREZ, J :
p

Subject of this petition is the Decision 1 of the Court of Appeals dated

10 August 2006 in CA-G.R. SP No. 87148, affirming the Decision dated 7 July
1998 and Resolution dated 28 September 2004 of the Department of Agrarian
Reform Adjudication Board (DARAB).
Eugenio Reyes (Eugenio) was the registered owner of a parcel of land
located at Turo, Bocaue, Bulacan, with an area of four thousand five hundred
twenty-seven (4,527) square meters, more or less, and covered by Transfer
Certificate of Title (TCT) No. 109456(M). Said title came from and cancelled
TCT No. T-62290 registered in the name of Eufracia and Susana Reyes,
siblings of Eugenio. The subject property was adjudicated to Eugenio by
virtue of an extrajudicial settlement among the heirs following the death of his
parents.
The controversy stemmed from a complaint filed before the DARAB of
Malolos, Bulacan by respondents Librada F. Mauricio (Librada), now
deceased, and her alleged daughter Leonida F. Mauricio (Leonida) for
annulment of contract denominated as Kasunduan and between Librada and
Eugenio as parties. Respondents also prayed for maintenance of their
peaceful possession with damages.

Respondents alleged that they are the legal heirs of the late Godofredo
Mauricio (Godofredo), who was the lawful and registered tenant of Eugenio
through his predecessors-in-interest to the subject land; that from 1936 until
his death in May 1994, Godofredo had been working on the subject land and
introduced improvements consisting of fruit-bearing trees, seasonal crops, a
residential house and other permanent improvements; that through fraud,
deceit, strategy and other unlawful means, Eugenio caused the preparation of
a document denominated as Kasunduan dated 28 September 1994 to eject
respondents from the subject property, and had the same notarized by Notary
Public Ma. Sarah G. Nicolas in Pasig, Metro Manila; that Librada never
appeared before the Notary Public; that Librada was illiterate and the contents
of the Kasunduan were not read nor explained to her; that Eugenio took undue
advantage of the weakness, age, illiteracy, ignorance, indigence and other
handicaps of Librada in the execution of the Kasunduan rendering it void for
lack of consent; and that Eugenio had been employing all illegal means to
eject respondents from the subject property. Respondents prayed for the
declaration of nullity of the Kasunduan and for an order for Eugenio to
maintain and place them in peaceful possession and cultivation of the subject
property. Respondents likewise demanded payment of damages. 2 During
trial, respondents presented a leasehold contract executed between Susana
and Godofredo to reaffirm the existing tenancy agreement. 3
SDHETI

Eugenio averred that no tenancy relationship existed between him and

respondents. He clarified that Godofredo's occupation of the subject premises
was based on the former's mere tolerance and accommodation. Eugenio
denied signing a tenancy agreement, nor authorizing any person to sign such
an agreement. He maintained that Librada, accompanied by a relative,
voluntarily affixed her signature to the Kasunduan and that she was fully
aware of the contents of the document. Moreover, Librada received
P50,000.00 from Eugenio on the same day of the execution of
the Kasunduan.Eugenio also questioned the jurisdiction of the DARAB since
the principal relief sought by respondents is the annulment of the contract,
over which jurisdiction is vested on the regular courts. Eugenio also asserted
that Leonida had no legal personality to file the present suit. 4

Based on the evidence submitted by both parties, the Provincial

Adjudicator 5 concluded that Godofredo was the tenant of Eugenio, and
Librada, being the surviving spouse, should be maintained in peaceful
possession of the subject land. The dispositive portion of the decision reads:
WHEREFORE, in view of the foregoing, judgment is hereby rendered in
favor of plaintiff Librada Mauricio and against defendant Eugenio R.
Reyes and order is hereby issued:
1. Declaring the kasunduan null and void;
2. Ordering defendant to respect the peaceful possession of herein
plaintiff Librada Mauricio over the subject landholding;
3. Ordering plaintiff to return the amount of P50,000.00 to herein
defendant;
4. No pronouncement as to costs. 6

On appeal, two issues were presented to and taken up by the DARAB,

namely: (1) Whether or not there is tenancy relation between the parties; and
(2) whether or not the Kasunduan dated 28 September 1994 is valid and
enforceable. The DARAB held that the Mauricio's are former tenants of
Spouses Reyes. It found that when Spouses Reyes died, siblings Eufracia,
Susana and Eugenio, among others inherited the subject property. Under the
law, they were subrogated to the rights and substituted to the "obligations" of
their late parents as the agricultural lessors over the farmholding tenanted by
respondents. Moreover, the DARAB banked on the Kasunduang Buwisan sa
Sakahan or the leasehold contract executed by Susana in favor of Godofredo
to support the tenancy relationship. Furthermore, the DARAB declared the
other Kasunduan as void by relying on the evaluation of the Provincial
Adjudicator as to the legal incapacity of Librada to enter into such a contract. 7
Eugenio filed a motion for reconsideration which was denied by the
DARAB on 28 September 2004. 8
Aggrieved by the DARAB ruling, Eugenio filed a petition for review with
the Court of Appeals. On 10 July 2006, the Court of Appeals issued a
resolution regarding the status of Leonida as a legal heir and allowed her to

substitute Librada, who died during the pendency of the case. 9 On 10 August
2006, the Court of Appeals affirmed the decision and resolution of the
DARAB. It sustained the factual findings of the DARAB with respect to the
tenancy relation between Godofredo and Spouses Reyes and the nullity of
the Kasunduan. 10
aTcESI

Undaunted, Eugenio filed the instant petition. Eugenio submits that no

tenancy relationship exists between him and respondents. He insists that
theKasunduang Buwisan sa Sakahan allegedly executed between Godofredo
and Susana in 1993 giving the former the right to occupy and cultivate the
subject property is unenforceable against Eugenio, having been entered into
without his knowledge and consent. Eugenio further asserts that per records
of the Department of Agrarian Reform (DAR), no leasehold contract was
entered into by Godofredo and Eugenio with respect to the disputed property.
Eugenio attributes error on the part of the Court of Appeals in concluding that
a tenancy relationship existed between the parties despite the absence of
some of the essential requisites of a tenancy relationship such as personal
cultivation and the subject land being agricultural. Finally, Eugenio defends the
validity of the Kasunduan entered into between him and Librada wherein the
latter agreed to vacate the subject property, in that it was voluntarily entered
into and the contents thereof were mutually understood by the parties. 11
In a Resolution dated 7 February 2007, this Court denied the petition for
failure to show that the Court of Appeals committed reversible error in its
challenged decision and resolution. The Court also dismissed the issues
raised as factual. However, upon filing of a motion for reconsideration by
Eugenio, this Court reinstated the petition and required respondent Leonida to
comment on the petition. 12
In her comment, respondent prayed for the denial of the petition
because the jurisdiction of this Court is limited to review of errors of law and
not of facts. 13
In the main, Eugenio insists that no tenancy relationship existed
between him and Godofredo. This is a question of fact beyond the province of
this Court in a petition for review under Rule 45 of the Rules of Court in which
only questions of law may be raised. 14 Absent any of the obtaining

exceptions 15to this rule, the findings of facts of the Provincial Adjudicator, as
affirmed by DARAB and especially by the Court of Appeals, are binding on
this Court.
The DARAB ruling outlined how the tenancy relationship between
Godofredo and the Mauricio's came about, thus:
This Board, after a thorough evaluation of the evidences, is convinced
that the Mauricios are former tenants of the parents of the herein
Defendant-Appeallant. A perusal of Exhibit "H" which is the Tax
Declaration of the property in controversy proves that upon the death of
the parents of Defendant-Appellant, the property was the subject matter
of their extra-judicial partition/settlement and this property was initially
under the ownership of the appellant's sisters, Eufracia and Susana
Reyes until the same property was finally acquired/transferred in the
name of Respondent-Appellant. Obviously, in order to re-affirm the fact
that the Mauricios are really the tenants, Susana Reyes had voluntarily
executed the Leasehold Contract with Godofredo Librada being the
tenant on the property and to prove that she (Susana Reyes) was the
predecessor-in-interest of Respondent-Appeallant Eugenio Reyes. . . . .
The"Kasunduang Buwisan sa Sakahan" alleging that their tenancy
relationship began in the year 1973 and their agreement as to the rental
shall remain until further revised. 16
EcDSTI

This is a contest of "Kasunduans." Respondents rely on a Kasunduan of

tenancy. Petitioners swear by a Kasunduan of termination of tenancy.
Librada claims that her late husband had been working on the land
since 1936 until his death in 1994. She presented the Kasunduang Buwisan
sa Sakahan dated 26 May 1993 and executed by Godofredo and Susana
which reaffirmed the leasehold tenancy over the subject land. On the other
hand, Eugenio disputes the claims of Librada and presented
another Kasunduan executed between him and Librada on 28 September
1994 which effectively terminates the leasehold tenancy when the latter
allegedly agreed to vacate the subject premises in exchange of monetary
considerations.
This second Kasunduan is the subject of the instant complaint. In its
disquisition, the DARAB nullified the second Kasunduan, to wit:

. . . Insofar as this "Kasunduan" is concerned, and after reading the

transcript of the testimony of the old woman Librada Mauricio, this Board
is convinced that indeed the purpose of the document was to eject her
from the farmholding but that Librada Mauricio wanted to return the
money she received because the contents of the document was never
explained to her being illiterate who cannot even read or write. This
Board is even further convinced after reading the transcript of the
testimonies that while the document was allegedly signed by the parties
in Turo, Bocaue, Bulacan, the same document was notarized in Pasig,
Metro Manila, thus, the Notary Public was not in a position to explain
much less ascertain the veracity of the contents of the
alleged"Kasunduan" as to whether or not Plaintiff-Appellee Librada
Mauricio had really understood the contents thereof. This Board further
adheres to the principle that it cannot substitute its own evaluation of the
testimony of the witnesses with that of the personal evaluation of the
Adjudicator a quo who, in the case at bar, had the best opportunity to
observe the demeanor of the witness Librada Mauricio while testifying on
the
circumstances
relevant
to
the
execution
of
the
alleged "Kasunduan." Furthermore, this Board adheres to the principle
that in all contractual, property or other relations, when one of the parties
is at a disadvantage on account of his moral dependence, ignorance,
mental weakness or other handicap, the courts (and in the case at bar,
this Board) must be vigilant for his protection (Art. 24, New Civil Code).
In the case at bar, Plaintiff-Appellee is already eighty-one (81) years old
who can neither read nor write, thus, she just simply signs her name with
her thumbmark. 17

Applying the principle that only questions of law may be entertained by

this Court, we defer to the factual ruling of the Provincial Adjudicator, as
affirmed by DARAB and the Court of Appeals, which clearly had the
opportunity to closely examine the witnesses and their demeanor on the
witness stand.
Assuming that the leasehold contract between Susana and Godofredo
is void, our conclusion remains. We agree with the Court of Appeals that a
tenancy relationship cannot be extinguished by mere expiration of term or
period in a leasehold contract; or by the sale, alienation or the transfer of legal

possession of the landholding. Section 9 of Republic Act No. 1199 or the

Agricultural Tenancy Act provides:
SECTION 9. Severance of Relationship. The tenancy relationship is
extinguished by the voluntary surrender of the land by, or the death or
incapacity of, the tenant, but his heirs or the members of his immediate
farm household may continue to work the land until the close of the
agricultural year. The expiration of the period of the contract as fixed
by the parties, and the sale or alienation of the land does not of
themselves extinguish the relationship. In the latter case, the
purchaser or transferee shall assume the rights and obligations of
the former landholder in relation to the tenant. In case of death of the
landholder, his heir or heirs shall likewise assume his rights and
obligations. (Emphasis supplied)
CHEDAc

Moreover, Section 10 of Republic Act No. 3844 (Code of Agrarian

Reforms of the Philippines) likewise provides:
SEC. 10. Agricultural Leasehold Relation Not Extinguished by Expiration
of Period, etc. The agricultural leasehold relation under this Code
shall not be extinguished by mere expiration of the term or period in a
leasehold contract nor by the sale, alienation or transfer of the legal
possession of the landholding. In case the agricultural lessor sells,
alienates or transfers the legal possession of the landholding, the
purchaser or transferee thereof shall be subrogated to the rights
and substituted to the obligations of the agricultural
lessor. (Emphasis supplied)

As an incidental issue, Leonida's legal standing as a party was also

assailed by Eugenio. Eugenio submitted that the complaint was rendered
moot with the death of Librada, Godofredo's sole compulsory heir. Eugenio
contended that Leonida is a mere ward of Godofredo and Librada, thus, not a
legal heir. 18
We are in full accord with the Court of Appeals when it ruled that
Eugenio cannot collaterally attack the status of Leonida in the instant
petition. 19

It is settled law that filiation cannot be collaterally attacked. 20 Wellknown civilista Dr. Arturo M. Tolentino, in his book "Civil Code of the
Philippines, Commentaries and Jurisprudence," noted that the aforecited
doctrine is rooted from the provisions of the Civil Code of the Philippines. He
explained thus:
The legitimacy of the child cannot be contested by way of defense or as
a collateral issue in another action for a different purpose. The necessity
of an independent action directly impugning the legitimacy is more
clearly expressed in the Mexican code (article 335) which provides: "The
contest of the legitimacy of a child by the husband or his heirs must be
made by proper complaint before the competent court; any contest made
in any other way is void." This principle applies under our Family Code.
Articles 170 and 171 of the code confirm this view, because they refer to
"the action to impugn the legitimacy." This action can be brought only by
the husband or his heirs and within the periods fixed in the present
articles. 21

In Braza v. City Civil Registrar of Himamaylan City, Negros

Occidental, 22 the Court stated that legitimacy and filiation can be questioned
only in a direct action seasonably filed by the proper party, and not through
collateral attack. 23
The same rule is applied to adoption such that it cannot also be made
subject to a collateral attack. In Reyes v. Sotero, 24 this Court reiterated that
adoption cannot be assailed collaterally in a proceeding for the settlement of a
decedent's estate. 25 Furthermore, inAustria v. Reyes, 26 the Court declared
that the legality of the adoption by the testatrix can be assailed only in a
separate action brought for that purpose and cannot be subject to collateral
attack. 27
STaCcA

Against these jurisprudential backdrop, we have to leave out the status

of Leonida from the case for annulment of the "Kasunduan" that supposedly
favors petitioners' cause.
WHEREFORE, based on the foregoing premises, the instant petition for
review on certiorari is DENIED and the Decision dated 10 August 2006 of the
Court of Appeals in CA-G.R. SP No. 87148 is AFFIRMED.

SO ORDERED.
Corona, C.J., Velasco, Jr., Leonardo-de Castro and Peralta, * JJ., concur.
|||

(Reyes v. Mauricio, G.R. No. 175080, [November 24, 2010], 650 PHIL 438449)

SECOND DIVISION
[G.R. No. 190710. June 6, 2011.]
JESSE U. LUCAS, petitioner, vs. JESUS S. LUCAS, respondent.
DECISION
NACHURA, J :
p

Is a prima facie showing necessary before a court can issue a DNA

testing order? In this petition for review on certiorari, we address this question
to guide the Bench and the Bar in dealing with a relatively new evidentiary
tool. Assailed in this petition are the Court of Appeals (CA) Decision 1 dated
September 25, 2009 and Resolution dated December 17, 2009.
The antecedents of the case are, as follows:
On July 26, 2007, petitioner, Jesse U. Lucas, filed a Petition to Establish
Illegitimate Filiation (with Motion for the Submission of Parties to DNA
Testing)2 before the Regional Trial Court (RTC), Branch 72, Valenzuela City.
Petitioner narrated that, sometime in 1967, his mother, Elsie Uy (Elsie),
migrated to Manila from Davao and stayed with a certain "Ate Belen (Belen)"
who worked in a prominent nightspot in Manila. Elsie would oftentimes
accompany Belen to work. On one occasion, Elsie got acquainted with
respondent, Jesus S. Lucas, at Belen's workplace, and an intimate
relationship developed between the two. Elsie eventually got pregnant and, on
March 11, 1969, she gave birth to petitioner, Jesse U. Lucas. The name of
petitioner's father was not stated in petitioner's certificate of live birth.
However, Elsie later on told petitioner that his father is respondent. On August
1, 1969, petitioner was baptized at San Isidro Parish, Taft Avenue, Pasay City.
Respondent allegedly extended financial support to Elsie and petitioner for a
period of about two years. When the relationship of Elsie and respondent

ended, Elsie refused to accept respondent's offer of support and decided to

raise petitioner on her own. While petitioner was growing up, Elsie made
several attempts to introduce petitioner to respondent, but all attempts were in
vain.
DCHIAS

Attached to the petition were the following: (a) petitioner's certificate of

live birth; (b) petitioner's baptismal certificate; (c) petitioner's college diploma,
showing that he graduated from Saint Louis University in Baguio City with a
degree in Psychology; (d) his Certificate of Graduation from the same school;
(e) Certificate of Recognition from the University of the Philippines, College of
Music; and (f) clippings of several articles from different newspapers about
petitioner, as a musical prodigy.
Respondent was not served with a copy of the petition. Nonetheless,
respondent learned of the petition to establish filiation. His counsel therefore
went to the trial court on August 29, 2007 and obtained a copy of the petition.
Petitioner filed with the RTC a Very Urgent Motion to Try and Hear the
Case. Hence, on September 3, 2007, the RTC, finding the petition to be
sufficient in form and substance, issued the Order 3 setting the case for
hearing and urging anyone who has any objection to the petition to file his
opposition. The court also directed that the Order be published once a week
for three consecutive weeks in any newspaper of general circulation in the
Philippines, and that the Solicitor General be furnished with copies of the
Order and the petition in order that he may appear and represent the State in
the case.
On September 4, 2007, unaware of the issuance of the September 3,
2007 Order, respondent filed a Special Appearance and Comment. He
manifested inter alia that: (1) he did not receive the summons and a copy of
the petition; (2) the petition was adversarial in nature and therefore summons
should be served on him as respondent; (3) should the court agree that
summons was required, he was waiving service of summons and making a
voluntary appearance; and (4) notice by publication of the petition and the
hearing was improper because of the confidentiality of the subject matter. 4
On September 14, 2007, respondent also filed a Manifestation and
Comment on Petitioner's Very Urgent Motion to Try and Hear the Case.

Respondent reiterated that the petition for recognition is adversarial in nature;

hence, he should be served with summons.
2005cdasia

After learning of the September 3, 2007 Order, respondent filed a

motion for reconsideration. 5 Respondent averred that the petition was not in
due form and substance because petitioner could not have personally known
the matters that were alleged therein. He argued that DNA testing cannot be
had on the basis of a mere allegation pointing to respondent as petitioner's
father. Moreover, jurisprudence is still unsettled on the acceptability of DNA
evidence.
On July 30, 2008, the RTC, acting on respondent's motion for
reconsideration, issued an Order 6 dismissing the case. The court remarked
that, based on the case of Herrera v. Alba, 7 there are four significant
procedural aspects of a traditional paternity action which the parties have to
face: a prima faciecase, affirmative defenses, presumption of legitimacy, and
physical resemblance between the putative father and the child. The court
opined that petitioner must first establish these four procedural aspects before
he can present evidence of paternity and filiation, which may include
incriminating acts or scientific evidence like blood group test and DNA test
results. The court observed that the petition did not show that these
procedural aspects were present. Petitioner failed to establish a prima
facie case considering that (a) his mother did not personally declare that she
had sexual relations with respondent, and petitioner's statement as to what his
mother told him about his father was clearly hearsay; (b) the certificate of live
birth was not signed by respondent; and (c) although petitioner used the
surname of respondent, there was no allegation that he was treated as the
child of respondent by the latter or his family. The court opined that, having
failed to establish a prima facie case, respondent had no obligation to present
any affirmative defenses. The dispositive portion of the said Order therefore
reads:
WHEREFORE, for failure of the petitioner to establish compliance with
the four procedural aspects of a traditional paternity action in his petition,
his motion for the submission of parties to DNA testing to establish
paternity and filiation is hereby DENIED. This case is DISMISSED
without prejudice.

SO ORDERED. 8

Petitioner seasonably filed a motion for reconsideration to the Order

dated July 30, 2008, which the RTC resolved in his favor. Thus, on October
20, 2008, it issued the Order 9 setting aside the court's previous order, thus:
WHEREFORE, in view of the foregoing, the Order dated July 30, 2008 is
hereby reconsidered and set aside.
cITaCS

Let the Petition (with Motion for the Submission of Parties to DNA
Testing) be set for hearing on January 22, 2009 at 8:30 in the morning.
xxx xxx xxx
SO ORDERED. 10

This time, the RTC held that the ruling on the grounds relied upon by
petitioner for filing the petition is premature considering that a full-blown trial
has not yet taken place. The court stressed that the petition was sufficient in
form and substance. It was verified, it included a certification against forum
shopping, and it contained a plain, concise, and direct statement of the
ultimate facts on which petitioner relies on for his claim, in accordance with
Section 1, Rule 8 of the Rules of Court. The court remarked that the allegation
that the statements in the petition were not of petitioner's personal knowledge
is a matter of evidence. The court also dismissed respondent's arguments that
there is no basis for the taking of DNA test, and that jurisprudence is still
unsettled on the acceptability of DNA evidence. It noted that the new Rule on
DNA Evidence 11 allows the conduct of DNA testing, whether at the court's
instance or upon application of any person who has legal interest in the matter
in litigation.
Respondent filed a Motion for Reconsideration of Order dated October
20, 2008 and for Dismissal of Petition, 12 reiterating that (a) the petition was
not in due form and substance as no defendant was named in the title, and all
the basic allegations were hearsay; and (b) there was no prima facie case,
which made the petition susceptible to dismissal.
The RTC denied the motion in the Order dated January 19, 2009, and
rescheduled the hearing. 13

Aggrieved, respondent filed a petition for certiorari with the CA,

questioning the Orders dated October 20, 2008 and January 19, 2009.
DAcSIC

On September 25, 2009, the CA decided the petition for certiorari in

favor of respondent, thus:
WHEREFORE, the instant petition for certiorari is hereby GRANTED for
being meritorious. The assailed Orders dated October 20, 2008 and
January 19, 2009 both issued by the Regional Trial Court, Branch 172 of
Valenzuela City in SP. Proceeding Case No. 30-V-07 are REVERSED
and SET ASIDE. Accordingly, the case docketed as SP. Proceeding
Case No. 30-V-07 is DISMISSED. 14

The CA held that the RTC did not acquire jurisdiction over the person of
respondent, as no summons had been served on him. Respondent's special
appearance could not be considered as voluntary appearance because it was
filed only for the purpose of questioning the jurisdiction of the court over
respondent. Although respondent likewise questioned the court's jurisdiction
over the subject matter of the petition, the same is not equivalent to a waiver
of his right to object to the jurisdiction of the court over his person.
HTSIEa

The CA remarked that petitioner filed the petition to establish illegitimate

filiation, specifically seeking a DNA testing order to abbreviate the
proceedings. It noted that petitioner failed to show that the four significant
procedural aspects of a traditional paternity action had been met. The CA
further held that a DNA testing should not be allowed when the petitioner has
failed to establish a prima facie case, thus:
While the tenor [of Section 4, Rule on DNA Evidence] appears to be
absolute, the rule could not really have been intended to trample on the
substantive rights of the parties. It could have not meant to be an
instrument to promote disorder, harassment, or extortion. It could have
not been intended to legalize unwarranted expedition to fish for
evidence. Such will be the situation in this particular case if a court may
at any time order the taking of a DNA test. If the DNA test in compulsory
recognition cases is immediately available to the petitioner/complainant
without requiring first the presentation of corroborative proof, then a dire
and absurd rule would result. Such will encourage and promote
harassment and extortion.

xxx xxx xxx

At the risk of being repetitious, the Court would like to stress that it sees
the danger of allowing an absolute DNA testing to a compulsory
recognition test even if the plaintiff/petitioner failed to establish prima
facie proof. . . . If at anytime, motu proprio and without pre-conditions,
the court can indeed order the taking of DNA test in compulsory
recognition cases, then the prominent and well-to-do members of our
society will be easy prey for opportunists and extortionists. For no cause
at all, or even for [sic] casual sexual indiscretions in their younger years
could be used as a means to harass them. Unscrupulous women,
unsure of the paternity of their children may just be taking the chancesjust in case-by pointing to a sexual partner in a long past one-time
encounter. Indeed an absolute and unconditional taking of DNA test for
compulsory recognition case opens wide the opportunities for
extortionist to prey on victims who have no stomach for scandal. 15

Petitioner moved for reconsideration. On December 17, 2009, the CA denied the
motion for lack of merit. 16
In this petition for review on certiorari, petitioner raises the following issues:
I.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT
RESOLVED THE ISSUE OF LACK OF JURISDICTION OVER THE
PERSON OF HEREIN RESPONDENT ALBEIT THE SAME WAS
NEVER RAISED IN THE PETITION FOR CERTIORARI.
I.A
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN
IT RULED THAT JURISDICTION WAS NOT ACQUIRED OVER
THE PERSON OF THE RESPONDENT.
I.B
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN
IT FAILED TO REALIZE THAT THE RESPONDENT HAD
ALREADY SUBMITTED VOLUNTARILY TO THE JURISDICTION
OF THE COURT A QUO.
AIaDcH

I.C
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN
IT ESSENTIALLY RULED THAT THE TITLE OF A PLEADING,
RATHER THAN ITS BODY, IS CONTROLLING.
II.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT
ORDERED THE DISMISSAL OF THE PETITION BY REASON OF THE
MOTION (FILED BY THE PETITIONER BEFORE THE COURT A QUO)
FOR THE CONDUCT OF DNA TESTING.
II.A
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN
IT ESSENTIALLY RULED THAT DNA TESTING CAN ONLY BE
ORDERED AFTER THE PETITIONER ESTABLISHES PRIMA
FACIE PROOF OF FILIATION.
III.
WHETHER OR NOT THE COURT OF APPEALS ERRED WITH ITS
MISPLACED RELIANCE ON THE CASE OF HERRERA VS. ALBA,
ESPECIALLY AS REGARDS THE 'FOUR SIGNIFICANT PROCEDURAL
ASPECTS OF A TRADITIONAL PATERNITY ACTION.' 17

Petitioner contends that respondent never raised as issue in his petition

for certiorari the court's lack of jurisdiction over his person. Hence, the CA had
no legal basis to discuss the same, because issues not raised are deemed
waived or abandoned. At any rate, respondent had already voluntarily
submitted to the jurisdiction of the trial court by his filing of several motions
asking for affirmative relief, such as the (a) Motion for Reconsideration of the
Order dated September 3, 2007; (b) Ex Parte Motion to Resolve Motion for
Reconsideration of the Order dated November 6, 2007; and (c) Motion for
Reconsideration of the Order dated October 20, 2008 and for Dismissal of
Petition. Petitioner points out that respondent even expressly admitted that he
has waived his right to summons in his Manifestation and Comment on
Petitioner's Very Urgent Motion to Try and Hear the Case. Hence, the issue is
already moot and academic.

Petitioner argues that the case was adversarial in nature. Although the
caption of the petition does not state respondent's name, the body of the
petition clearly indicates his name and his known address. He maintains that
the body of the petition is controlling and not the caption.
Finally, petitioner asserts that the motion for DNA testing should not be
a reason for the dismissal of the petition since it is not a legal ground for the
dismissal of cases. If the CA entertained any doubt as to the propriety of DNA
testing, it should have simply denied the motion. 18 Petitioner points out that
Section 4 of the Rule on DNA Evidence does not require that there must be a
prior proof of filiation before DNA testing can be ordered. He adds that the CA
erroneously relied on the four significant procedural aspects of a paternity
case, as enunciated in Herrera v. Alba. 19 Petitioner avers that these
procedural aspects are not applicable at this point of the proceedings because
they are matters of evidence that should be taken up during the trial. 20
In his Comment, respondent supports the CA's ruling on most issues
raised in the petition for certiorari and merely reiterates his previous
arguments. However, on the issue of lack of jurisdiction, respondent counters
that, contrary to petitioner's assertion, he raised the issue before the CA in
relation to his claim that the petition was not in due form and substance.
Respondent denies that he waived his right to the service of summons. He
insists that the alleged waiver and voluntary appearance was conditional upon
a finding by the court that summons is indeed required. He avers that the
assertion of affirmative defenses, aside from lack of jurisdiction over the
person of the defendant, cannot be considered as waiver of the defense of
lack of jurisdiction over such person.
cTEICD

The petition is meritorious.

Primarily, we emphasize that the assailed Orders of the trial court were
orders denying respondent's motion to dismiss the petition for illegitimate
filiation. An order denying a motion to dismiss is an interlocutory order which
neither terminates nor finally disposes of a case, as it leaves something to be
done by the court before the case is finally decided on the merits. As such, the
general rule is that the denial of a motion to dismiss cannot be questioned in a
special civil action for certiorari, which is a remedy designed to correct errors

of jurisdiction and not errors of judgment. Neither can a denial of a motion to

dismiss be the subject of an appeal unless and until a final judgment or order
is rendered. In a number of cases, the court has granted the extraordinary
remedy of certiorari on the denial of the motion to dismiss but only when it has
been tainted with grave abuse of discretion amounting to lack or excess of
jurisdiction. 21 In the present case, we discern no grave abuse of discretion on
the part of the trial court in denying the motion to dismiss.
ACaEcH

The grounds for dismissal relied upon by respondent were (a) the
court's lack of jurisdiction over his person due to the absence of summons,
and (b) defect in the form and substance of the petition to establish illegitimate
filiation, which is equivalent to failure to state a cause of action.
We need not belabor the issues on whether lack of jurisdiction was
raised before the CA, whether the court acquired jurisdiction over the person
of respondent, or whether respondent waived his right to the service of
summons. We find that the primordial issue here is actually whether it was
necessary, in the first place, to serve summons on respondent for the court to
acquire jurisdiction over the case. In other words, was the service of summons
jurisdictional? The answer to this question depends on the nature of
petitioner's action, that is, whether it is an action in personam, in rem, orquasi
in rem.
An action in personam is lodged against a person based on personal
liability; an action in rem is directed against the thing itself instead of the
person; while an action quasi in rem names a person as defendant, but its
object is to subject that person's interest in a property to a corresponding lien
or obligation. A petition directed against the "thing" itself or the res, which
concerns the status of a person, like a petition for adoption, annulment of
marriage, or correction of entries in the birth certificate, is an action in rem. 22
In an action in personam, jurisdiction over the person of the defendant
is necessary for the court to validly try and decide the case. In a proceedingin
rem or quasi in rem, jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court, provided that the latter has
jurisdiction over the res. Jurisdiction over the res is acquired either (a) by the
seizure of the property under legal process, whereby it is brought into actual

custody of the law, or (b) as a result of the institution of legal proceedings, in

which the power of the court is recognized and made effective. 23
The herein petition to establish illegitimate filiation is an action in rem.
By the simple filing of the petition to establish illegitimate filiation before the
RTC, which undoubtedly had jurisdiction over the subject matter of the
petition, the latter thereby acquired jurisdiction over the case. An in
remproceeding is validated essentially through publication. Publication is
notice to the whole world that the proceeding has for its object to bar
indefinitely all who might be minded to make an objection of any sort to the
right sought to be established. 24 Through publication, all interested parties
are deemed notified of the petition.
If at all, service of summons or notice is made to the defendant, it is not
for the purpose of vesting the court with jurisdiction, but merely for satisfying
the due process requirements. 25 This is but proper in order to afford the
person concerned the opportunity to protect his interest if he so
chooses. 26 Hence, failure to serve summons will not deprive the court of its
jurisdiction to try and decide the case. In such a case, the lack of summons
may be excused where it is determined that the adverse party had, in fact, the
opportunity to file his opposition, as in this case. We find that the due process
requirement with respect to respondent has been satisfied, considering that
he has participated in the proceedings in this case and he has the opportunity
to file his opposition to the petition to establish filiation.
To address respondent's contention that the petition should have been
adversarial in form, we further hold that the herein petition to establish filiation
was sufficient in form. It was indeed adversarial in nature despite its caption
which lacked the name of a defendant, the failure to implead respondent as
defendant, and the non-service of summons upon respondent. 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. 27 In this
petition classified as an action in rem the notice requirement for an
adversarial proceeding was likewise satisfied by the publication of the petition
and the giving of notice to the Solicitor General, as directed by the trial court.

The petition to establish filiation is sufficient in substance. It satisfies

Section 1, Rule 8 of the Rules of Court, which requires the complaint to
contain a plain, concise, and direct statement of the ultimate facts upon which
the plaintiff bases his claim. A fact is essential if it cannot be stricken out
without leaving the statement of the cause of action inadequate. 28 A
complaint states a cause of action when it contains the following elements: (1)
the legal right of plaintiff, (2) the correlative obligation of the defendant, and (3)
the act or omission of the defendant in violation of said legal right. 29
The petition sufficiently states the ultimate facts relied upon by petitioner
to establish his filiation to respondent. Respondent, however, contends that
the allegations in the petition were hearsay as they were not of petitioner's
personal knowledge. Such matter is clearly a matter of evidence that cannot
be determined at this point but only during the trial when petitioner presents
his evidence.
CSHcDT

In a motion to dismiss a complaint based on lack of cause of action, the

question submitted to the court for determination is the sufficiency of the
allegations made in the complaint to constitute a cause of action and not
whether those allegations of fact are true, for said motion must hypothetically
admit the truth of the facts alleged in the complaint. 30 The inquiry is confined
to the four corners of the complaint, and no other. 31 The test of the sufficiency
of the facts alleged in the complaint is whether or not, admitting the facts
alleged, the court could render a valid judgment upon the same in accordance
with the prayer of the complaint. 32
If the allegations of the complaint are sufficient in form and substance
but their veracity and correctness are assailed, it is incumbent upon the court
to deny the motion to dismiss and require the defendant to answer and go to
trial to prove his defense. The veracity of the assertions of the parties can be
ascertained at the trial of the case on the merits. 33
The statement in Herrera v. Alba 34 that there are four significant
procedural aspects in a traditional paternity case which parties have to face
has been widely misunderstood and misapplied in this case. A party is
confronted by these so-called procedural aspects during trial, when the parties
have presented their respective evidence. They are matters of evidence that

cannot be determined at this initial stage of the proceedings, when only the
petition to establish filiation has been filed. The CA's observation that
petitioner failed to establish a prima facie case the first procedural aspect in
a paternity case is therefore misplaced. A prima facie case is built by a
party's evidence and not by mere allegations in the initiatory pleading.
Clearly then, it was also not the opportune time to discuss the lack of
a prima facie case vis--vis the motion for DNA testing since no evidence has,
as yet, been presented by petitioner. More essentially, it is premature to
discuss whether, under the circumstances, a DNA testing order is warranted
considering that no such order has yet been issued by the trial court. In fact,
the latter has just set the said case for hearing.
At any rate, the CA's view that it would be dangerous to allow a DNA
testing without corroborative proof is well taken and deserves the Court's
attention. In light of this observation, we find that there is a need to
supplement the Rule on DNA Evidence to aid the courts in resolving motions
for DNA testing order, particularly in paternity and other filiation cases. We,
thus, address the question of whether a prima facie showing is necessary
before a court can issue a DNA testing order.
CSaHDT

The Rule on DNA Evidence was enacted to guide the Bench and the
Bar for the introduction and use of DNA evidence in the judicial system. It
provides the "prescribed parameters on the requisite elements for reliability
and validity (i.e., the proper procedures, protocols, necessary laboratory
reports, etc.), the possible sources of error, the available objections to the
admission of DNA test results as evidence as well as the probative value of
DNA evidence." It seeks "to ensure that the evidence gathered, using various
methods of DNA analysis, is utilized effectively and properly, [and] shall not be
misused and/or abused and, more importantly, shall continue to ensure that
DNA analysis serves justice and protects, rather than prejudice the public." 35
Not surprisingly, Section 4 of the Rule on DNA Evidence merely
provides for conditions that are aimed to safeguard the accuracy and integrity
of the DNA testing. Section 4 states:
SEC. 4. Application for DNA Testing Order. The appropriate court
may, at any time, either motu proprio or on application of any person who

has a legal interest in the matter in litigation, order a DNA testing. Such
order shall issue after due hearing and notice to the parties upon a
showing of the following:
(a) A biological sample exists that is relevant to the case;
(b) The biological sample: (i) was not previously subjected to the
type of DNA testing now requested; or (ii) was previously
subjected to DNA testing, but the results may require
confirmation for good reasons;
HCSEIT

(c) The DNA testing uses a scientifically valid technique;

(d) The DNA testing has the scientific potential to produce new
information that is relevant to the proper resolution of the
case; and
(e) The existence of other factors, if any, which the court may
consider as potentially affecting the accuracy or integrity of
the DNA testing.
This Rule shall not preclude a DNA testing, without need of a prior court
order, at the behest of any party, including law enforcement agencies,
before a suit or proceeding is commenced.

This does not mean, however, that a DNA testing order will be issued as
a matter of right if, during the hearing, the said conditions are established.
In some states, to warrant the issuance of the DNA testing order, there
must be a show cause hearing wherein the applicant must first present
sufficient evidence to establish a prima facie case or a reasonable possibility
of paternity or "good cause" for the holding of the test. 36 In these states, a
court order for blood testing is considered a "search," which, under their
Constitutions (as in ours), must be preceded by a finding of probable cause in
order to be valid. Hence, the requirement of a prima facie case, or reasonable
possibility, was imposed in civil actions as a counterpart of a finding of
probable cause. The Supreme Court of Louisiana eloquently explained
Although a paternity action is civil, not criminal, the constitutional
prohibition against unreasonable searches and seizures is still
applicable, and a proper showing of sufficient justification under the

particular factual circumstances of the case must be made before a court

may order a compulsory blood test. Courts in various jurisdictions have
differed regarding the kind of procedures which are required, but those
jurisdictions have almost universally found that a preliminary showing
must be made before a court can constitutionally order compulsory
blood testing in paternity cases. We agree, and find that, as a preliminary
matter, before the court may issue an order for compulsory blood testing,
the moving party must show that there is a reasonable possibility of
paternity. As explained hereafter, in cases in which paternity is contested
and a party to the action refuses to voluntarily undergo a blood test, a
show cause hearing must be held in which the court can determine
whether there is sufficient evidence to establish a prima facie case which
warrants issuance of a court order for blood testing. 37

The same condition precedent should be applied in our jurisdiction to

protect the putative father from mere harassment suits. Thus, during the
hearing on the motion for DNA testing, the petitioner must present prima
facie evidence or establish a reasonable possibility of paternity.
Notwithstanding these, it should be stressed that the issuance of a DNA
testing order remains discretionary upon the court. The court may, for
example, consider whether there is absolute necessity for the DNA testing. If
there is already preponderance of evidence to establish paternity and the DNA
test result would only be corroborative, the court may, in its discretion, disallow
a DNA testing.
WHEREFORE, premises considered, the petition is GRANTED. The
Court of Appeals Decision dated September 25, 2009 and Resolution dated
December 17, 2009 are REVERSED and SET ASIDE. The Orders dated
October 20, 2008 and January 19, 2009 of the Regional Trial Court of
Valenzuela City are AFFIRMED.
HCTAEc

SO ORDERED.
Carpio, Peralta, Abad and Mendoza, JJ., concur.
|||

(Lucas v. Lucas, G.R. No. 190710, [June 6, 2011], 665 PHIL 795-815)

THIRD DIVISION
[G.R. No. 142877. October 2, 2001.]
JINKIE CHRISTIE A. DE JESUS and JACQUELINE A. DE
JESUS, minors, represented by their mother, CAROLINA A. DE
JESUS, petitioners, vs. THE ESTATE OF DECEDENT JUAN
GAMBOA DIZON, ANGELINA V. DIZON, CARLOS DIZON,
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.
Ramon N. Bernaldo for petitioners.
Fortun Narvasa & Salazar for respondents.
SYNOPSIS
Upon the death of Juan G. Dizon, petitioners, born during the marriage
of Danilo de Jesus and Carolina Aves de Jesus, were recognized in a
notarized document by the decedent Juan G. Dizon as his own illegitimate
children by Carolina Aves de Jesus. Based on this notarized acknowledgment,
the petitioners filed a complaint, inventory and accounting of the Dizon estate.
Private respondents filed a motion to dismiss, alleging that the case, while
denominated as an action for partition, would call for the altering of the status
of petitioners from being the legitimate children of Sps. Danilo de Jesus and
Carolina Aves de Jesus to instead be the illegitimate children of Carolina Aves
de Jesus and deceased Juan Dizon. The trial court ultimately dismissed the
complaint for lack of cause of action and for being improper, decreeing that
the declaration of heirship could only be made in a special proceeding.

On appeal, petitioners assailed the said order of the trial court

maintaining that their recognition as being illegitimate children in an authentic
writing is in itself sufficient to establish their status as such and does not
require a separate action for judicial approval.
The Supreme Court held that 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 cannot be done because the law itself established their legitimacy
which can only be contested in a direct suit specifically brought for that
purpose.
DECISION
VITUG, J :
p

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 latter's 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 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 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.
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 certificates presented by respondents appeared to have
effectively contradicted petitioners' allegation of illegitimacy.
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.
cITAaD

Petitioners assail the foregoing order of the trial court in the instant petition for
review on certiorari. Basically, petitioners maintain that their recognition as being
illegitimate children of the decedent, embodied in an authentic writing, is in itself

sufficient to establish their status as such and does not require a separate action
for judicial approval following the doctrine enunciated
in Divinagracia vs. Bellosillo. 2
In their comment, respondents submit that the rule in Divinagracia being relied by
petitioners is inapplicable to the case because there has been no attempt to
impugn legitimate filiation in Divinagracia. In praying for the affirmance of
dismissal of the complaint, respondents count on the case of Sayson vs. Court of
Appeals, 3 which has ruled that the issue of legitimacy cannot be questioned in a
complaint for partition and accounting but must be seasonably brought up in 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 child's 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 latter's heirs, 14 can contest in an appropriate action the legitimacy
of a child born to his wife. Thus, it is only when the legitimacy of a child has been
successfully impugned that the paternity of the husband can be rejected.
Respondents correctly argued that petitioners hardly could find succor
in Divinagracia. In said case, the Supreme Court remanded to the trial court for
further proceedings the action for partition filed by an illegitimate child who had
claimed to be an 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 else's illegitimate children.
Petitioners totally ignored the fact that it was not for them, given the attendant
circumstances particularly, to declare that they could not have been the legitimate
children, clearly opposed to the entries in their respective birth certificates, of
Danilo and Carolina de Jesus.
ATCaDE

The rule that the written acknowledgment made by the deceased Juan G. Dizon
establishes petitioner's 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 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, Panganiban and Sandoval-Gutierrez, JJ., concur.
|||

(De Jesus v. Estate of Dizon, G.R. No. 142877, [October 2, 2001], 418 PHIL
768-776)

FIRST DIVISION
[G.R. No. 157043. February 2, 2007.]
REPUBLIC OF THE PHILIPPINES, petitioner, vs. TRINIDAD R.A.
CAPOTE, respondent.
DECISION
CORONA, J :
p

This petition for review on certiorari 1 seeks to set aside the Court of Appeals
(CA) decision 2 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 Giovanni's guardian ad litem averred:
xxx xxx xxx
1. [Respondent] is a Filipino citizen, of legal age, married, while minor
GIOVANNI N. GALLAMASO, is also a Filipino citizen, sixteen (16)
years old and both are residents of San Juan, Southern Leyte
where they can be served with summons and other court
processes;
2. [Respondent] was appointed guardian [ad litem] of minor Giovanni N.
Gallamaso by virtue of a court order in Special [Proc.] No. R-459,
dated [August 18, 1998] . . . authorizing her to file in court a
petition for change of name of said minor in accordance with the
desire of his mother [who is residing and working abroad];

3. Both [respondent] and minor have permanently resided in San Juan,

Southern Leyte, Philippines for more than fifteen (15) years prior
to the filing of this instant petition, the former since 1970 while the
latter since his birth [in 1982];
4. The minor was left under the care of [respondent] since he was yet
nine (9) years old up to the present;
5. Minor GIOVANNI N. GALLAMASO is the illegitimate natural child of
Corazon P. Nadores and Diosdado Gallamaso. [He] was born on
July 9, 1982 [,] prior to the effectivity of the New Family Code and
as such, his mother used the surname of the natural father
despite the absence of marriage between them; and [Giovanni]
has been known by that name since birth [as per his birth
certificate registered at the Local Civil Register of San Juan,
Southern Leyte];
6. The father, Diosdado Gallamaso, from the time [Giovanni] was born
and up to the present, failed to take up his responsibilities [to him]
on matters of financial, physical, emotional and spiritual concerns.
[Giovanni's pleas] for attention along that line [fell] on deaf
ears . . .;
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 mother's
surname;
8. [Giovanni's] 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
cCaIET

9. The change of name [from] GIOVANNI N. GALLAMASO to GIOVANNI

NADORES will be for the benefit of the minor.
xxx xxx xxx 4

Respondent prayed for an order directing the local civil registrar to effect the
change of name on Giovanni's birth certificate. Having found respondent's
petition sufficient in form and substance, the trial court gave due course to the
petition. 5 Publication of the petition in a newspaper of general circulation in the

province of Southern Leyte once a week for three consecutive weeks was
likewise ordered. 6 The trial court also directed that the local civil registrar be
notified and that the Office of the Solicitor General (OSG) be sent a copy of the
petition and order. 7
Since there was no opposition to the petition, respondent moved for leave of
court to present her evidence ex parte before a court-appointed commissioner.
The OSG, acting through the Provincial Prosecutor, did not object; hence, the
lower court granted the motion.
After the reception of evidence, the trial court rendered a decision ordering the
change of name from Giovanni N. Gallamaso to Giovanni Nadores. 8
From this decision, petitioner Republic of the Philippines, through the OSG, filed
an appeal with a lone assignment of error: the court a quo erred in granting the
petition in a summary proceeding.
Ruling that the proceedings were sufficiently adversarial in nature as required, the
CA affirmed the RTC decision ordering the change of name. 9
In this petition, the Republic contends that the CA erred in affirming the trial
court's decision which granted the petition for change of name despite the nonjoinder 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 child's change of name should have been made
respondents to make the proceeding adversarial. 12
We deny the petition.
"The subject of rights must have a fixed symbol for individualization which serves
to distinguish him from all others; this symbol is his name." 13Understandably,
therefore, no person can change his name or surname without judicial
authority. 14 This is a reasonable requirement for those seeking such change
because a person's name necessarily affects his identity, interests and
interactions. The State must be involved in the process and decision to change
the name of any of its citizens.

The Rules of Court provides the requirements and procedure for change of
name. Here, the appropriate remedy is covered by Rule 103, 15 a separate and
distinct proceeding from Rule 108 on mere cancellation and correction of entries
in the civil registry (usually dealing only with innocuous or clerical errors
thereon). 16
The issue of non-joinder of alleged indispensable parties in the action before the
court a quo is intertwined with the nature of the proceedings there. The point is
whether the proceedings were sufficiently adversarial.
Summary proceedings do not extensively address the issues of a case since the
reason for their conduct is expediency. This, according to petitioner, is not
sufficient to deal with substantial or contentious issues allegedly resulting from a
change of name, meaning, legitimacy as well as successional rights. 17 Such
issues are ventilated only in adversarial proceedings wherein all interested
parties are impleaded and due process is observed. 18
When Giovanni was born in 1982 (prior to the enactment and effectivity of
the Family Code of the Philippines), 19 the pertinent provision of the Civil Code
then as regards his use of a surname, read:
Art. 366. A natural child acknowledged by both parents shall principally
use the surname of the father. If recognized by only one of the parents, a
natural child shall employ the surname of the recognizing parent.
(emphasis ours)
cCHETI

Based on this provision, Giovanni should have carried his mother's surname from
birth. The records do not reveal any act or intention on the part of Giovanni's
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. . . . (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 father's 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 mother's surname
as his middle name and his father's 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 person's

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 Giovanni's 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 Giovanni's 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 mother's 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 respondent's
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)

cDCaTS

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. 24Respondent 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., Sandoval-Gutierrez, Azcuna and Garcia, JJ., concur.
|||

(Republic v. Capote, G.R. No. 157043, [February 2, 2007], 543 PHIL 72-81)

SECOND DIVISION
[G.R. No. 111180. November 16, 1995.]
DAISIE T. DAVID, petitioner, vs. COURT OF APPEALS, RAMON
R. VILLAR, respondents.
Orlando R. Pangilinan for petitioner.
Danilo G. Pineda for private respondent.
DECISION
MENDOZA, J :
p

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.
The relationship became known to private respondent's wife when
Daisie took Christopher J. to Villar's house at Villa Teresa in Angeles City
sometime in 1986 and introduced him to Villar's 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. the rightful custody of the minor Christopher J. T. David is
hereby given to the natural mother, the herein petitioner Daisie T. David;
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. to pay the costs of this suit.

SO ORDERED.
On appeal, the Court of Appeals reversed, holding:
We agree with the respondent-appellant's view that this is not proper in a habeas
corpus case.
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 on Special Proceeding
No. 4489.

Daisie in turn filed this petition for review of the appellate court's
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."
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, 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 child's 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.
cdtai

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.

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
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 o'clock in
the evening to make up for the 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 Dasie, 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."
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."
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 mother's custody. Even now that the
child is over seven years of age the mother's custody over him will have to be
upheld because the child categorically 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 hereinafter 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.

THIRD DIVISION
[G.R. No. 143256. August 28, 2001.]
RODOLFO FERNANDEZ and MERCEDES CARANTO
FERNANDEZ, HUSBAND and WIFE, EDDIE C. FERNANDEZ
and LUZ FERNANDEZ, SPOUSESpetitioners, vs. ROMEO
FERNANDEZ, POTENCIANO FERNANDEZ, FRANCISCO
FERNANDEZ, JULITA FERNANDEZ, WILLIAM FERNANDEZ,
MARY FERNANDEZ, ALEJANDRO FERNANDEZ, GERARDO
FERNANDEZ, RODOLFO FERNANDEZ and GREGORIO
FERNANDEZ, respondents.
Tanopo & Serafica for petitioners.
Napoleon B. Arenas for respondents.
SYNOPSIS
Private respondents, nephews and nieces of the deceased Jose K. Fernandez,
filed an action to declare the extra judicial partition of the estate and the deed of
sale both between Generosa de Venecia, the surviving spouse, and petitioner
Rodolfo Fernandez void ab initio. The complaint alleged that the partition was
void as Rodolfo is not a child of their uncle's wife and that the sale in his favor of
119.5 sq. m. portion of the 194 sq. m. lot including the whole residential building
erected thereon in favor of Rodolfo was without any consideration. Rodolfo, to
prove his legitimacy, failed to submit any birth certificate but presented the
deceased' application for recognition of back pay rights under Act No.
897 wherein he was listed as a son of the deceased and his own baptismal
certificate. He also alleged that he enjoys and possesses the status of being a
legitimate child of the spouses openly and continuously until they died. He
testified that the money he paid for the sale came from his savings as overseas
contract worker in Saudi Arabia. This, private respondents failed to controvert.
The trial court found that Rodolfo is not the legitimate son of the spouses.

Rodolfo, then a month old, was purchased by the spouses from a certain Miliang
when their only son died. Judgment was rendered declaring the partition and the
deed of sale null and void, ordering petitioners to reconvey the subject property to
private respondents. This was affirmed on appeal by the Court of Appeals.
Hence, this recourse.
DaECST

As a rule, the issue of filiation cannot be the subject of a collateral attack except
when necessary to the full resolution of the case.
Factual findings of the Court of Appeals affirming that of the trial court are
conclusive on the parties and not reviewable by this Court and they carry even
more weight when the Court of Appeals affirms the factual findings of the trial
court.
A partition which includes a person believed to be an heir, but who is not, shall be
void only with respect to such person. Therefore, the surviving spouse in the
case at bar is entitled to one-half (1/2) of the conjugal property and one-half (1/2)
of the remaining one-half (1/2) share as heir from her husband's estate, or a total
of three-fourth (3/4) of the entire property.
The presumption that a contract has sufficient consideration cannot be
overthrown by a mere assertion that it has no consideration.
DECISION
GONZAGA-REYES, J :
p

Before Us is a petition for review on certiorari assailing the decision 1 of the

respondent Court of Appeals dated December 22, 1999 affirming the
decision 2 of the Regional Trial Court Branch 40, Dagupan City in an action for
nullity of contracts, partition, recovery of possession and damages in favor of
plaintiffs-appellees, herein respondents.
The facts as found by the respondent Court of Appeals, are as follows: 3

"The late Spouses Dr. Jose K. Fernandez, and Generosa A. de Venecia

were the registered owners of a parcel of land located at Dagupan City
covered by TCT No. T-9267 (525) consisting of 194 sq. meters, and the
two-storey building constructed thereon covered by Tax Declaration 22592-1. It is undisputed that Generosa gave birth to a baby boy named
Rogelio who died when he was only twelve (12) years old as paralytic. In
the testimony of Romeo Fernandez (TSN, Aug. 31, 1994, pp. 9-14) it
was revealed that the late Spouses being childless by the death of their
son, purchased from a certain Miliang for P20.00 a one (1) month baby
boy. The boy being referred to was later on identified as Rodolfo
Fernandez, the herein appellant. Appellant was taken care of by the
couple and was sent to school and became a dental technician. He lived
with the couple until they became old and disabled.
On July 20, 1982, Jose K. Fernandez died thereby leaving his wife
Generosa A. de Venecia and Rodolfo Fernandez and an estate
consisting of the following:
(a) "A parcel of land (Lot 9132, before Lot No. 444-C, of the
Cadastral Survey of Dagupan, Cadastral Case No. 41,
G.L.R.O. Cadastral Record No. 925), situated in the Barrio
of Pantal, City of Dagupan. Bounded on the NE. by Lot No.
447; on the SE. by Lot No. 9134; on the SW. by the
Arellano Street; and on the NW. by Lot No. 9131.
Containing an area of One Hundred Ninety Four (194)
square meters, more or less. Covered by Transfer
Certificate of Title No. 525 (T-9267) Pangasinan Registry of
Deeds."
(b) "A two (2) storey residential building made of concrete and
wood, G. I. roofing with a floor area of 154 square meters
and 126 square meters of the first and second floor,
respectively. Declared under Tax Decl. No. 22- 592-1 and
assessed therein at P26,000.00."
On August 31, 1989, appellant and Generosa de Venecia executed a
Deed of Extra-judicial Partition dividing and allocating to themselves the
following:

To: Generosa de Venecia Vda. De Fernandez

(a) 119.5 sq. m. located on the southwestern portion of the land;
(b) Whole residential house above-mentioned;
To: Rodolfo V. Fernandez
74.5 square meters to be taken on the northeastern portion of the
land.
On the same day, Generosa de Venecia executed a Deed of Absolute
Sale in favor of Eddie Fernandez, appellant's son over the following:
"A portion of One Hundred Nineteen and One-Half (119.5) Square
meters including the building and/or all existing thereon to be
taken from the southwestern portion of the parcel of land
described as follows, to wit:
'A parcel of land (Lot No. 9132, before Lot No. 444-C, of the
Cadastral Survey of Dagupan, Cadastral Case No. 41, G.L.R.O.
Cadastral Record No. 925), situated in the Barrio of Pantal, City of
Dagupan. Bounded on the NE. by Lot No. 447; on the SE by Lot
No. 9134; on the SW. by the Arellano Street; and on the NW. by
Lot No. 9131. Containing an area of One Hundred and NinetyFour (194), Square Meters, more or less, covered by TRANSFER
CERTIFICATE OF TITLE NO. 525 (T-9267) Pangasinan
Registry of Deeds" (Exh. "8", Exhibits for the Defendants)
ACETIa

After learning the transaction, Romeo, Potenciano, Francisco, Julita,

William, Mary, Alejandro, Gerardo, Rodolfo and Gregorio, all surnamed
Fernandez, being nephews and nieces of the deceased Jose K.
Fernandez, their father Genaro being a brother of Jose, filed on
September 21, 1994, an action to declare the Extra-Judicial Partition of
Estate and Deed of Sale void ab initio (docketed as Civil Case No. 9400016-D).
The complaint alleged that defendants (herein appellants), motivated by
unmitigated greed, deliberate and malicious acts of depriving the plaintiff
and other heirs (herein appellees) of the deceased spouses, without
basis of heirship or any iota of rights to succession or inheritance, taking

advantage of the total physical and mental incapacity of the deceased

Generosa de Venecia aggravated by unlawful scheme confederated,
colluded and conspired with each other in causing the fake, simulated
grossly inauthentic contracts purporting to be executed on August 31,
1989 and jointly on the same date, caused the execution of the deed of
absolute sale purportedly signed by Generosa de Venecia covering the
same property described in the deed of extra-judicial partition and by
virtue of the said acts, appellants were able to secure new land titles in
their favor (Records, pp. 3-4, Complaint). Appellees thus prayed that the
Deed of Extra-judicial Partition, Deed of Absolute Sale and Transfer
Certificate of Title No. 54641 be declared void from the beginning.
Significantly, in their answer, defendants alleged:
"16. That the deceased Sps. Jose K. Fernandez and Generosa
were husband and wife blessed with one child the herein
defendant Rodolfo V. Fernandez whom they acknowledged during
their lifetime. (italics supplied)
18. That the Deed of Extrajudicial Partition and Deed of
Absolute Sale executed by the late Generosa de
Venecia and defendant Rodolfo V. Fernandez which
are now in question were all made with the full
knowledge, consent and approval of the parties
thereto and for value." (Records, pp. 20-21,
Answer)."

On May 10, 1996, the Regional Trial Court rendered a decision in favor of the
plaintiffs, the dispositive portion reads: 4
"WHEREFORE, judgment is hereby rendered in favor of plaintiffs and
against the defendants;
1. Declaring the Deed of Extra-Judicial Partition dated August 31, 1989
(Exh. "3 ), the Deed of Absolute Sale dated August 31, 1989 (Exh.
8"), the TCT No. 54641, and the TCT No. 54693 null and void;
2. Ordering the defendants to reconvey to, and to peacefully surrender to
the plaintiffs the possession of the house and lot in question;

3. Ordering the defendants, jointly and severally to pay to plaintiffs the

following:
(a) P50,000.00 as compensatory damages;
(b) P100,000.00 as moral damages;
(c) P20,000.00 as attorney's fees; and
(d) P2,000.00 as litigation costs.
SO ORDERED."

In so ruling, the trial court found that defendant Rodolfo Fernandez was not a
legitimate nor a legally adopted child of spouses Dr. Jose Fernandez and
Generosa de Venecia Fernandez, hence Rodolfo could not inherit from the
spouses. Rodolfo's claim as a son of the deceased spouses Fernandez was
negated by the fact that (1) he only reached high school and was told to stop
studying so that he could help in the clinic of Dr. Fernandez, (2) he failed to
present any birth certificate, (3) the book entitled Fercolla clan which was
compiled and edited by respected people such as Ambassador Armando
Fernandez, Justice Jorge Coquia and Teresita Coquia-Sison, showed the
genealogy of the family of Dr. Jose and Generosa Fernandez without a child; a
pedigree may be admitted in evidence to prove the facts of genealogy and that
entries in a family bible or other family books or charts, engravings or rings,
family portraits and the like, may be received as evidence of pedigree, 5 (4) the
certification issued by the Records Management and Archives Office that there
was no available information about the birth of petitioner Rodolfo to the spouses
Fernandez, (5) the application of Dr. Jose Fernandez for backpay certificate
naming petitioner Rodolfo as his son was doubtful considering that there were
blemishes or alteration in the original copy; (6) that Rodolfo's baptismal certificate
was spurious and falsified since there were no available records of baptism with
the parish from June 7, 1930 to August 8, 1936, while Rodolfo's baptismal
certificate which was issued in 1989 showed that he was baptized on November
24, 1934. The court found that the extra-judicial partition and the deed of
absolute sale were prepared and executed under abnormal, unusual and irregular
circumstances which rendered the documents null and void.

Defendants Rodolfo Fernandez et. al. appealed to the respondent Court of

Appeals which affirmed the trial court's judgment in its assailed decision dated
December 22, 1999.
In resolving the appeal, the respondent court delved into the legitimacy of
defendant-appellant Rodolfo Fernandez' filiation with the deceased spouses. It
found that appellants' evidence which consisted of a certificate of baptism stating
that he was a child of the spouses Fernandez and the application for recognition
of rights to back pay under RA 897 filed by Dr. Jose Fernandez, wherein the latter
referred to Rodolfo as his son, did not acquire evidentiary weight to prove his
filiation. The appellate court concluded that while baptismal certificates may be
considered public documents, they were evidence only to prove the
administration of the sacraments on the dates therein specified, but not the
veracity of the statements or declarations made therein with respect to his
kinsfolk; that while the application for back pay was a public document, it was not
executed to admit the filiation of Jose K. Fernandez with Rodolfo V. Fernandez,
the herein appellant; that the public document contemplated in Article 172 of the
Family Code referred to the written admission of filiation embodied in a public
document purposely executed as an admission of filiation and not as obtaining in
this case wherein the public document was executed as an application for the
recognition of rights to back pay under Republic Act No. 897.

Appellants Rodolfo Fernandez et al. filed their motion for reconsideration which
was denied in a resolution dated May 17, 2000. 6
Rodolfo Fernandez et al. filed the instant petition for review with the following
issues:
I
THE COURT OF APPEALS ERRED IN AFFIRMING THE JUDGMENT
OF THE TRIAL COURT ORDERING THE DEFENDANTS,
PETITIONERS HEREIN, TO RECONVEY TO, AND PEACEFULLY
SURRENDER TO THE PLAINTIFFS, RESPONDENTS HEREIN, THE
POSSESSION OF THE HOUSE AND LOT IN QUESTION BECAUSE
THE SAID ORDER IS PALPABLY CONTRARY TO THE ADMITTED

FACTS THE LAW AND JURISPRUDENCE, FOR THE FOLLOWING

REASONS:
cCSEaA

(a) THE HOUSE AND LOT IN QUESTION ARE ADMITTED BY THE

PARTIES TO BE CONJUGAL PROPERTIES OF THE SPOUSES DR.
JOSE K. FERNANDEZ AND GENEROSA DE VENECIA, AND
(b) RESPONDENTS, WHO ARE NOT RELATED TO GENEROSA DE
VENECIA BY CONSANGUINITY, ARE NOT HER INTESTATE HEIRS
AND CANNOT SUCCEEDAB INTESTATO TO HER INTESTATE
ESTATE.
II
THE COURT OF APPEALS ERRED IN AFFIRMING THE JUDGMENT
OF THE TRIAL COURT DECLARING (1) THE DEED OF EXTRAJUDICIAL PARTITION DATED AUGUST 31, 1989 (EXH. '3'), THE DEED
OF ABSOLUTE SALE ALSO DATED AUGUST 31, 1989 (EXH. '8'), TCT
NO. 54641, AND TCT NO. 54693 NULL AND VOID FOR THE
FOLLOWING REASONS:
(a) IT HAS NO FACTUAL BASIS DULY ESTABLISHED BY THE
EVIDENCE ON RECORD, AND
(b) RESPONDENTS, NOT BEING PARTIES TO THE QUESTIONED
DEEDS, HAVE NO PERSONALITY TO CONTEST THE VALIDITY OF
SAID DOCUMENTS.
III
THE COURT OF APPEALS ERRED IN AFFIRMING THE TRIAL
COURT'S FINDING THAT THE PETITIONER RODOLFO FERNANDEZ
WAS NOT THE CHILD OF SPOUSES DR. JOSE K. FERNANDEZ AND
GENEROSA DE VENECIA BECAUSE
(a) THE FILIATION OF PETITIONER RODOLFO FERNANDEZ COULD
NOT BE COLLATERALLY ATTACKED IN AN ACTION FOR
DECLARATION OF NULLITY OF DOCUMENTS, PARTITION,
RECOVERY OF POSSESSION AND DAMAGES, AND;
(b) THE DECISION AS AFFIRMED BY THE COURT OF APPEALS DID
NOT DECLARE IN THE DISPOSITIVE PORTION THEREOF THAT

PETITIONER RODOLFO FERNANDEZ IS NOT THE CHILD OF

SPOUSES DR. JOSE FERNANDEZ AND GENEROSA FERNANDEZ.
IV
THE COURT OF APPEALS ERRED IN AFFIRMING THE AWARD OF
DAMAGES AND ATTORNEY'S FEES TO THE RESPONDENTS,
THERE BEING NO FACTUAL BASIS IN THE AFFIRMED DECISION TO
JUSTIFY SUCH AWARD.

The principal issue for resolution in this case concerns the rights of the parties to
the conjugal property of the deceased spouses Fernandez.
Petitioners allege that the respondent court found the extra-judicial partition
executed by petitioner Rodolfo Fernandez and Generosa Fernandez, widow of
Dr. Jose Fernandez, null and void because the former allegedly failed to prove
legitimate filiation to his putative father, the late Dr. Jose Fernandez. Petitioners,
contend, however, that the burden of proof lies with the respondents because
they were the ones contesting the filiation of Rodolfo Fernandez. They insist that
both lower courts had no power to pass upon the matter of filiation because it
could not be collaterally attacked in the present action but in a separate and
independent action directly impugning such filiation.
We are not persuaded.
It must be noted that the respondents' principal action was for the declaration of
absolute nullity of two documents, namely: deed of extra-judicial partition and
deed of absolute sale, and not an action to impugn one's legitimacy. The
respondent court ruled on the filiation of petitioner Rodolfo Fernandez in order to
determine Rodolfo's right to the deed of extra-judicial partition as the alleged
legitimate heir of the spouses Fernandez. While we are aware that one's
legitimacy can be questioned only in a direct action seasonably filed by the
proper party, this doctrine has no application in the instant case considering that
respondents' claim was that petitioner Rodolfo was not born to the deceased
spouses Jose and Generosa Fernandez; we do not have a situation wherein they
(respondents) deny that Rodolfo was a child of their uncle's wife. The case
of Benitez-Badua vs. Court of Appeals, 7 which has a similar factual backdrop is
instructive:

"A careful reading of the above articles 8 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 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 inCabatbat-Lim vs. Intermediate Appellate Court, 166 SCRA 451,
457 cited in the impugned decision is apropos, viz:
"Petitioners' recourse to Art. 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 decedent's 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.""

Thus, it is necessary to pass upon the relationship of petitioner Rodolfo

Fernandez to the deceased spouses Fernandez for the purpose of determining
what legal right Rodolfo has in the property subject of the extra-judicial partition.

In fact, the issue of whether or not Rodolfo Fernandez was the son of the
deceased spouses Jose Fernandez and Generosa de Venecia was squarely
raised by petitioners in their pre-trial brief 9 filed before the trial court, hence they
are now estopped from assailing the trial court's ruling on Rodolfo's status.
We agree with the respondent court when it found that petitioner Rodolfo failed to
prove his filiation with the deceased spouses Fernandez. Such is a factual issue
which has been thoroughly passed upon and settled both by the trial court and
the appellate court. Factual findings of the Court of Appeals are conclusive on the
parties and not reviewable by this Court and they carry even more
weight 10 when the Court of Appeals affirms the factual findings of the trial
court. 11 We accordingly find no cogent reason to disagree with the respondent
court's evaluation of the evidence presented, thus: 12
"The Records Management and Archives Office is bereft of any records
of the birth of appellant Rodolfo Fernandez. On October 11, 1995, it
issued a certification worded as follows:
HIETAc

"This is to certify that the Register of Births for the Municipality of

Dagupan, Pangasinan in the year 1984 is not on file with the
National Archives, hence, there is no available information about
the birth of Rodolfo V. Fernandez alleged to have been born on
November 24, 1934 to the spouses Jose K. Fernandez and
Generosa de Venecia in Dagupan, Pangasinan" (Records, p. 146)
Appellant nonetheless, contends that the Application for Recognition of
Back Pay Rights Under Act No. 897 is a public document and a
conclusive proof of the legitimate filiation between him and the deceased
spouses (Rollo, p. 41, Appellants' Brief). We do not agree.
It may be conceded that the Application for Recognition of Back Pay
Rights Under Act No. 897 is a public document nevertheless, it was not
executed to admit the filiation of Jose K. Fernandez with Rodolfo V.
Fernandez, the herein appellant. The public document contemplated in
Article 172 of the Family Code refer to the written admission of filiation
embodied in a public document purposely executed as an admission of
filiation and not as obtaining in this case wherein the public document
was executed as an application for the recognition of rights to back pay

under Republic Act No. 897. Section 23, Rule 132 of the Revised Rules
on Evidence provides:
"SECTION 32. Public documents as evidence Documents
consisting of entries in public records made in the performance of
a duty by a public officer are prima facie evidence of the facts
therein stated. All other public documents are evidence, even
against a third person, of the fact which gave rise to their
execution and of the date of the latter."
The rule is not absolute in the sense that the contents of a public
document are conclusive evidence against the contracting parties as to
the truthfulness of the statements made therein. They constitute
only prima facie evidence of the facts which give rise to their execution
and of the date of the latter. Thus, a baptismal certificate issued by a
Spanish priest under the Spanish regime constitutes prima
facie evidence of the facts certified to by the parish priest from his own
knowledge such as the administration of the sacrament on the day and
in the place and manner set forth in the certificate; but it does not
constitute proof of the statements made therein concerning the
parentage of the person baptized (Francisco, Evidence, 1994 ed., p.
516, citing Garcia vs.Gajul, 53 Phil. 642; Adriano vs. de Jesus, 23 Phil.
350; Buan vs. Arquiza, 5 Phil. 193; Siguion vs. Siguion, 8 Phil. 7). Public
documents are perfect evidence of the fact which give rise to their
execution and of the date of the latter if the act which the officer
witnessed and certified to or the date written by him are not shown to be
false; but they are not conclusive evidence with respect to the
truthfulness of the statements made therein by the interested parties
(Martin, Rules of Court in the Philippines with Note and Comments, vol.
4, p. 577).

Corollarily, the Application for Recognition of Back Pay Rights Under Act
No. 897 is only a proof that Jose K. Fernandez filed said application on
June 5, 1954 in Dagupan City but it does not prove the veracity of the
declaration and statement contained in the said application that concern
the relationship of the applicant with herein appellant. In like manner, it is
not a conclusive proof of the filiation of appellant with his alleged father,

Jose K. Fernandez the contents being, only prima facie evidence of the
facts stated therein.
Additionally, appellant claims that he enjoyed and possessed the status
of being a legitimate child of the spouses openly and continuously until
they died (Rollo, p. 42; Appellants' Brief). Open and continuous
possession of the status of a legitimate child is meant the enjoyment by
the child of the position and privileges usually attached to the status of a
legitimate child such as bearing the paternal surname, treatment by the
parents and family of the child as legitimate, constant attendance to the
child's support and education, and giving the child the reputation of
being a child of his parents (Sempio-Diy, The Family Code of the
Philippines, pp. 245-246). However, it must be noted that, as was held
in Quismundo vs. WCC, 132 SCRA 590, possession of status of a child
does not in itself constitute an acknowledgment; it is only a ground for a
child to compel recognition by his assumed parent.
Lastly, to substantiate his claim of being a legitimate child appellant
presented a baptismal certificate issued by Fr. Rene Mendoza of the St.
John Metropolitan Cathedral of Dagupan City on August 10, 1989 stating
therein that appellant is a child of the late spouses having been born on
November 15, 1934 and baptized on November 24, 1934 (Exh. "1"
Exhibits for the Defendants). As stated, while baptismal certificates may
be considered public documents, they are evidence only to prove the
administration of the sacraments on the dates therein specified, but not
the veracity of the statements or declarations made therein with respect
to his kinsfolk (Reyes vs. Court of Appeals, 135 SCRA 439). It may be
argued that a baptismal certificate is one of the other means allowed by
the Rules of Court and special laws of proving filiation but in this case,
the authenticity of the baptismal certificate was doubtful when Fr.
Raymundo Q. de Guzman of St. John the Evangelist Parish of LingayenDagupan, Dagupan City issued a certification on October 16, 1995
attesting that the records of baptism on June 7, 1930 to August 8, 1936
were all damaged (Records, p. 148, Exh. "G"). Neither the family portrait
offered in evidence establishes a sufficient proof of filiation Pictures do
not constitute proof of filiation (Reyes vs. Court of Appeals) (supra). In
fine, the evidence presented by appellant did not acquire evidentiary
weight to prove his filiation. Consequently the Extra-Judicial Partition

dated August 31, 1989 executed by appellant Rodolfo Fernandez and

Generosa de Venecia is null and void."

Considering the foregoing findings, petitioner Rodolfo is not a child by nature of

the spouses Fernandez and not a legal heir of Dr. Jose Fernandez, thus the
subject deed of extra-judicial settlement of the estate of Dr. Jose Fernandez
between Generosa vda. de Fernandez and Rodolfo is null and void insofar as
Rodolfo is concerned 13 pursuant to Art. 1105 of the New Civil Code which
states:
"A partition which includes a person believed to be an heir, but who is
not, shall be void only with respect to such person."

Petitioners next contend that respondents admitted that the property in question
was the conjugal property of the late spouses Dr. Jose Fernandez and Generosa
de Venecia, thus when Dr. Jose Fernandez died intestate in 1982, his estate
consisted solely of 1/2 pro indiviso of the conjugal property and the other half
belonged to his wife Generosa de Venecia; that granting Dr. Jose Fernandez was
only survived by his wife, the respondents nephews and nieces of Dr. Jose are
entitled to inherit the 1/2 share of the decedent's estate while the 3/4 share of the
conjugal property will still belong to Generosa as the widow of Dr. Jose
Fernandez, hence the trial court's order reconveying the possession of the
subject lot and building to respondents was contrary to the admitted facts and law
since respondents are not related by consanguinity to Generosa vda.
de Fernandez.
We agree.
Article 1001 of the Civil Code provides:
"Should brothers and sisters or their children survive with the widow or
widower, the latter shall be entitled to one half of the inheritance and the
brothers and sisters or their children to the other half."

Generosa was the widow of Dr. Jose Fernandez and as provided in the abovequoted Article 1001, she is entitled to the 1/2 of the inheritance and the
respondents to the other 1/2. In effect, 3/4 pro indiviso is the share of Generosa
as the surviving spouse, i.e., 1/2 as her share of the conjugal property estate and

1/2 of the remaining 1/2 as share as heir from her husband's estate. Thus, we
find well taken the petitioners' assertion that the annulment of the extra-judicial
partition between Generosa and petitioner Rodolfo does not necessarily result in
respondents' having exclusive right to the conjugal property, as erroneously found
by the respondent court. Generosa, during her lifetime, had the right to enjoy and
dispose of her property without other limitations than those established by
law, 14 which right she exercised by executing a deed of sale in favor of petitioner
Eddie Fernandez.
HAaDTE

Petitioners assails respondents' right, not being heirs of Generosa, to question

the validity of the deed of sale since the action for the annulment of contracts
may only be instituted by all who are thereby obliged principally or subsidiarily. 15
We disagree.
As a rule, a contract cannot be assailed by one who is not a party obliged
principally or subsidiarily under a contract. However, when a contract prejudices
the rights of a third person, he may exercise an action for nullity of the contract if
he is prejudiced in his rights with respect to one of the contracting parties, and
can show detriment which would positively result to him from the contract in
which he had no intervention. 16 As we have discussed above, respondents are
entitled to the 1/4 of the entire conjugal property, i.e., lot and building; however
considering that widow Generosa, during her lifetime, sold the entire building to
petitioner Eddie Fernandez, respondents had been deprived of their 1/4 share
therein, thus the deed of sale was prejudicial to the interest of respondents as
regards their 1/4 share in the building. Respondents therefore, have a cause of
action to seek the annulment of said deed of sale.
Petitioners further allege that the respondent court erred in declaring null and
void the deed of sale executed between Generosa and petitioner Eddie
Fernandez concluding that the same was simulated or false and in affirming the
trial court's findings that the deed was prepared and executed under abnormal,
unusual and irregular circumstances without however, particularly stating the
circumstances.
We agree.

Respondents allege that the deed of sale was fictitious and simulated because
there was no consideration for the sale. However, this assertion was controverted
by vendee petitioner Eddie Fernandez' declaration, that the money he paid for the
sale came from his savings as overseas contract worker in Saudi Arabia from
1982-1989 which respondents failed to controvert by presenting evidence to the
contrary. The presumption that a contract has sufficient consideration cannot be
overthrown by a mere assertion that it has no consideration. 17 Under Art. 1354
of the Civil Code, consideration is presumed unless the contrary is proven.
Respondents also claim that the signature appearing in the deed of sale was not
that of Generosa because she was already bedridden with both legs amputated
before she died. Forgery cannot be presumed; it must be proved by clear,
positive and convincing evidence 18 and whoever alleges it has the burden of
proving the same; 19 a burden respondents failed to discharge. The respondents
had not presented any convincing proof to override the evidentiary value of the
duly notarized deed of sale. A notarial document is evidence of the facts in the
clear unequivocal manner therein expressed. It has in its favor the presumption of
regularity. To contradict all these, there must be evidence that is clear, convincing
and more than merely preponderant. 20
We note however, that Generosa sold the entire 2 storey building to petitioner
Eddie Fernandez, i.e. she did not only sell her 3/4 undivided share in the building
but also the 1/4 share of the respondents. We rule, that such a sale of the entire
building without the consent of the respondents is not null and void as only the
rights of the co-owner seller are transferred, thereby making the buyer, petitioner
Eddie, a co-owner of the 3/4 share of the building together with the respondents
who owned the 1/4 share therein. 21
Finally, anent the issue of actual and moral damages and attorney's fees
awarded by the trial court, we find them to be bereft of factual basis. A party is
entitled to an adequate compensation for such pecuniary loss actually suffered
by him as he has duly proven. 22 Such damages, to be recoverable, must not
only be capable of proof, but must actually be proved with a reasonable degree of
certainty. 23 Courts cannot simply rely on speculation, conjecture or guesswork in
determining the fact and amount of damages. 24 The testimony of respondent
Romeo Fernandez that he suffered around P100,000 actual damages was not

supported by any documentary or other admissible evidence. We also agree with

the petitioners that the respondent court should not have awarded moral
damages in the amount of P100,000 since they also failed to show proof of moral
suffering, mental anguish, serious anxiety, besmirched reputation, wounded
feelings and social humiliation. Attorney's fees should likewise be deleted for lack
of factual basis and legal justification. Both the lower courts did not cite specific
factual basis to justify the award of attorney's fees, which is in violation of the
proscription against the imposition of a penalty on the right to litigate. 25

WHEREFORE, premises considered, the assailed judgment is hereby Affirmed

with Modification, as follows:
1. Respondents as legitimate heirs of Dr. Jose Fernandez are entitled to the 1/4
share of the conjugal lot and building of the deceased spouses Jose and
Generosa Fernandez who died childless and intestate;
2. The deed of extra-judicial partition is nullified insofar as the share of petitioner
Rodolfo in the conjugal lot is concerned and the title issued pursuant thereto in
the name of Rodolfo Fernandez;
3. Considering that the deed of sale is valid insofar as the 3/4 share of Generosa
sold to petitioner Eddie Fernandez, TCT No. 54693 is cancelled and a new title
should be issued in the names of petitioner Eddie Fernandez and respondents as
co-owners of the 3/4 and 1/4 shares respectively in the conjugal building.
4. The awards of actual and moral damages and attorney's fees are deleted.
SO ORDERED.
Melo, Vitug, Panganiban and Sandoval-Gutierrez, JJ., concur.
|||

(Fernandez v. Fernandez, G.R. No. 143256, [August 28, 2001], 416 PHIL
322-344)

SECOND DIVISION
[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 CARULASANWANG 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.
DECISION
TINGA, J :
p

I will not blot out his name out of the book of life.
Revelation 3:5

On 22 September 2002, petitioner Julian Lin Carulasan Wang, a minor,

represented by his mother Anna Lisa Wang, filed a petition dated 19 September
2002for 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 child'sname 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 WangMei Jasmine who was born in Singapore. . . . Since in
Singapore middle names or the maiden surname of the mother are not
carried in a person's 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 Singapore's 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 thepetition
that is, that petitioner Julian may be discriminated against when studies in
Singapore because of his middle name did 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 nameof a person,
names cannot be changed to suit the convenience of the bearers. Under Article
174 of the Family Code, legitimate children have the right to bear the
surnames of the father and the mother, and there is no reason why this right
should now be taken from petitioner Julian, considering that he is still a minor.
The trial court added that when petitioner Julian reaches the age of majority, he
could then decide whether he will change his name by dropping his
middle name. 3
Petitioner filed a motion for reconsideration of the decision but this was denied in
a resolution dated 20 May 2004. 4 The trial court maintained that the
Singaporean practice of not carrying a middle name does not justify the

dropping of the middle name of a legitimate Filipino child who intends to study
there. The dropping of the middle name would be tantamount to giving due
recognition to or application of the laws of Singapore instead of Philippine law
which is controlling. That the change of name would not prejudice public interest
or would not be for a fraudulent purpose would not suffice to grant the petition if
the reason for the change of name is itself not reasonable. 5
Petitioner then filed this Petition for Review on Certiorari (Under Rule
45) 6 arguing that the trial court has decided a question of substance not
theretofore determined by the Court, that is: whether or not dropping the
middle name of a minor child is contrary to Article 174 7 of the Family Code.
Petitioner contends that "[W]ith globalization and mixed marriages, there is a
need for the Supreme Court to rule on the matter of dropping of family name for a
child to adjust to his new environment, for consistency and harmony among
siblings, taking into consideration the "best interest of the child." 8 It is argued
that convenience of the child is a valid reason for changing the name as long as it
will not prejudice the State and others. Petitioner points out that the
middlename "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 cases 9 decided by this Court that allowed a minor
to petition for changeof name. 10
The Court required the Office of the Solicitor General (OSG) to comment on
the petition. The OSG filed its Comment 11 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 oftheir 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 ofname 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.
Petitioner's 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 child's
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.

acITSD

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 ofbirth or civil
registry, he must show proper or reasonable cause, or any compelling reason
which may justify such change. Otherwise, the request should be denied. 14
The touchstone for the grant of a change of name is that there be 'proper and
reasonable
cause' for which
the change is
sought. 15 To
justify
a
request forchange 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 ofthe 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 forchange of surname. There are only a handful of cases involving
requests for change of the given name 18 and none on requests for changing or
dropping ofthe 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 person's 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 ofindicating 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 father's
surname. 22
Applying these laws, an illegitimate child whose filiation is not recognized by the
father bears only a given name and his mother's 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 mother's surname as his
middle name and his father's surname as his surname, reflecting his status as a
legitimated child or an acknowledged illegitimate child.
EHDCAI

Accordingly, the registration in the civil registry of the birth of such individuals
requires that the middle name be indicated in the certificate. The

registeredname 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. Republic 23 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 hername from Antonina B. Oshita to Antonina Bartolome. The Court
granted her petition based on the following considerations: she had elected
Philippine citizenship upon reaching the age of majority; her other siblings who
had also elected Philippine citizenship have been using their mother's 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
thechange 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 mother's 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 nameas 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
voter's 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 petitioner's 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
petitioner's 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 voter's registration records; thus,
denying the petition would only result to confusion.
SEcAIC

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 ofchange 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.

THIRD DIVISION
[G.R. No. 148311. March 31, 2005.]
IN THE
MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORG
A GARCIA
HONORATO B. CATINDIG, petitioner,
DECISION
SANDOVAL-GUTIERREZ, J :
p

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 petition 1 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 mother's
middle name and surname; and that he is now a widower and qualified to be her
adopting parent. He prayed that Stephanie's middle name Astorga be changed to
"Garcia," her mother's 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 StephanieNathy Astorga Garcia. The Court
further holds that the petitioner's 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 obligationsof obedience and maintenance with respect to her
natural mother, and for civil purposes, shall henceforth be the petitioner's
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.
TacESD

Upon finality of this Decision, let the same be entered in the Local Civil
Registrar concerned pursuant to Rule 99 of the Rules of Court.
Let copy of this Decision be furnished the National Statistics Office for
record purposes.
SO ORDERED." 4

On April 20, 2001, petitioner filed a motion for clarification and/or

reconsideration 5 praying that Stephanie should be allowed to use the
surname of her natural mother (GARCIA) as her middle name.
On May 28, 2001, 6 the trial court denied petitioner's 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
surnameof 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 mother's surname)
avoids the stigma ofher illegitimacy; and; (6) her continued use of "Garcia" as her
middle name is not opposed by either the Catindig or Garcia families.
The Republic, through the Office of the Solicitor General (OSG), agrees with
petitioner that Stephanie should be permitted to use, as her middle name, the
surname of her natural mother for the following reasons:
First, it is necessary to preserve and maintain Stephanie's filiation with her
natural mother because under Article 189 of the Family Code, she remains to be
an intestate heir of the latter. Thus, to prevent any confusion and needless
hardship in the future, her relationship or proof of that relationship with her
natural mother should be maintained.
Second, there is no law expressly prohibiting Stephanie to use the
surname of her natural mother as her middle name. What the law does not
prohibit, it allows.
Last, it is customary for every Filipino to have a middle name, which is ordinarily
the surname of the mother. This custom has been recognized by the Civil Code
and Family Code. In fact, the Family Law Committees agreed that "the initial or
surname of the mother should immediately precede the surname of the father so
that the second name, if any, will be before the surname of the mother." 7
We find merit in the petition.
Use Of Surname Is Fixed By Law
For all practical and legal purposes, a man's name is the designation by which he
is known and called in the community in which he lives and is best known. It is
defined as the word or combination of words by which a person is distinguished
from other individuals and, also, as the label or appellation which he bears for the
convenience of the world at large addressing him, or in speaking of or dealing

with him. 8 It is both of personal as well as public interest that every person must
have a name.
DCATHS

The name of an individual has two parts: (1) the given or proper name and (2)
the surname or family name. The given or proper name is that which is given to
the individual at birth or at baptism, to distinguish him from other individuals. The
surname or family name is that which identifies the family to which he belongs
and is continued from parent to child. The given name may be freely selected by
the parents for the child, but the surname to which the child is entitled is fixed by
law. 9
Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which
regulate the use of surname 10 of an individual whatever may be his status in
life, i.e., whether he may be legitimate or illegitimate, an adopted child, a married
woman or a previously married woman, or a widow, thus:
"Art. 364. Legitimate and legitimated children shall principally use the
surname of the father.
Art. 365. An adopted child shall bear the surname of the adopter.
xxx xxx xxx
Art. 369. Children conceived before the decree annulling a voidable
marriage shall principally use the surname of the father.
Art. 370. A married woman may use:
(1) Her maiden first name and surname and add her husband's
surname, or
(2) Her maiden first name and her husband's surname or
(3) Her husband's full name, but prefixing a word indicating that she is
his wife, such as 'Mrs.'
Art. 371. In case of annulment of marriage, and the wife is the guilty
party, she shall resume her maiden name and surname. If she is the
innocent spouse, she may resume her maiden name and surname.
However, she may choose to continue employing her former husband's
surname, unless:

(1) The court decrees otherwise, or

(2) She or the former husband is married again to another person.
Art. 372. When legal separation has been granted, the wife shall
continue using her name and surname employed before the legal
separation.
Art. 373. A widow may use the deceased husband's surname as though
he were still living, in accordance with Article 370.
Art. 374. In case of identity of names and surnames, the younger person
shall be obliged to use such additional name or surname as will avoid
confusion.
Art. 375. In case of identity of names and surnames between
ascendants and descendants, the word Junior' can be used only by a
son. Grandsons and other direct male descendants shall either:
(1) Add a middle name or the mother's surname, or
(2) Add the Roman numerals II, III, and so on.
xxx xxx xxx"

Law Is Silent As To The Use Of

Middle Name
As correctly submitted by both parties, there is no law regulating the use of a
middle name. Even Article 176 11 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.
EAHDac

The middle name or the mother's 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 mother's
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;
xxx xxx xxx"

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 child's 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 father's
surname indicates the family to which he belongs, for which reason he
would insist on the use of the father's 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 Caguioa's 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 Enrile's correct
surname is Ponce since the mother's surname is Enrile but everybody

calls him Atty. Enrile. Justice Jose Gutierrez David's family name is
Gutierrez and his mother's 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 xxx xxx
Justice Puno remarked that there is logic in the simplification suggested
by Justice Caguioa that the surname of the father should always be last
because there are so many traditions like the American tradition where
they like to use their second given name and the Latin tradition, which is
also followed by the Chinese wherein they even include the Clan name.
xxx xxx 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)

ETDSAc

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
decreeof adoption. 14
The Underlying Intent of
Adoption Is In Favor of the
Adopted Child

Adoption is defined as the process of making a child, whether related or not to

the adopter, possess in general, the rights accorded to a legitimate child. 15 Itis a
juridical act, a proceeding in rem which creates between two persons a
relationship similar to that which results from legitimate paternity and
filiation. 16The 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 189 21 ofthe
Family Code and Section 17 22 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 ofthe
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, Stephanie's continued use of her
mother's 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
18 24 , 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 mother's surname as
her middle name will not only sustain her continued loving relationship with her
mother but will also eliminate the stigma of her illegitimacy.
Liberal Construction of Adoption
Statutes In Favor Of Adoption
It is a settled rule that adoption statutes, being humane and salutary, should be
liberally construed to carry out the beneficent purposes of adoption. 25 The
interests and welfare of the adopted child are of primary and paramount
consideration, 26 hence, every reasonable intendment should be sustained to
promote and fulfill these noble and compassionate objectives of the law. 27
Lastly, Art. 10 of the New Civil Code provides that:
"In case of doubt in the interpretation or application of laws, it is
presumed that the lawmaking body intended right and justice to prevail."

This provision, according to the Code Commission, "is necessary so that it may
tip the scales in favor of right and justice when the law is doubtful or obscure. It
will strengthen the determination of the courts to avoid an injustice which
may apparently be authorized by some way of interpreting the law." 28
Hence, since there is no law prohibiting an illegitimate child adopted by her
natural father, like Stephanie, to use, as middle name her mother's 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 mother's
surname "GARCIA" as her middle name.
cTSHaE

Let the corresponding entry of her correct and complete name be entered in the
decree of adoption.
SO ORDERED.
Panganiban, Corona, Carpio Morales and Garcia, JJ., concur.

|||

(In the Matter of the Adoption of Stephanie Nathy Astorga Garcia, G.R. No.

148311, [March 31, 2005], 494 PHIL 515-528)