G.R. No.

86355 May 31, 1990

JOSE
MODEQUILLO,
petitioner,
vs.
HON. AUGUSTO V. BREVA FRANCISCO SALINAS,
FLORIPER ABELLAN-SALINAS, JUANITO CULAN-CULAN
and DEPUTY SHERIFF FERNANDO PLATA respondents.

All counterclaims and other claims are

hereby dismissed. 1
The said judgment having become final and executory, a writ of
execution was issued by the Regional Trial Court of Davao City
to satisfy the said judgment on the goods and chattels of the
defendants Jose Modequillo and Benito Malubay at Malalag,
Davao del Sur.

Josefina Brandares-Almazan for petitioner.

ABC Law Offices for private respondents.

GANCAYCO, J.:
The issue in this petition is whether or not a final judgment of
the Court of Appeals in an action for damages may be satisfied
by way of execution of a family home constituted under the
Family Code.
The facts are undisputed.
On January 29, 1988, a judgment was rendered by the Court of
Appeals in CA-G.R. CV No. 09218 entitled "Francisco Salinas,
et al. vs. Jose Modequillo, et al.," the dispositive part of which
read as follows:
WHEREFORE, the decision under appeal
should be, as it is hereby, reversed and set
aside. Judgment is hereby rendered finding
the defendants-appellees Jose Modequillo
and Benito Malubay jointly and severally
liable to plaintiffs-appellants as hereinbelow
set forth. Accordingly, defendants-appellees
are ordered to pay jointly and severally to:
1. Plaintiffs-appellants, the Salinas spouses:
a. the amount of P30,000.00 by way of
compensation for the death of their son
Audie Salinas;
b. P10,000.00 for the loss of earnings by
reason of the death of said Audie Salinas;
c. the sum of P5,000.00 as burial expenses
of Audie Salinas; and
d. the sum of P5,000.00 by way of moral
damages.
2. Plaintiffs-appellants Culan-Culan:
a. the sum of P5,000.00 for hospitalization
expenses of Renato Culan- Culan; and
b. P5,000.00 for moral damages.
3. Both plaintiff-appellants Salinas and
Culan-Culan, P7,000.00 for attorney's fees
and litigation expenses.

On July 7, 1988, the sheriff levied on a parcel of residential

land located at Poblacion Malalag, Davao del Sur containing
an area of 600 square meters with a market value of
P34,550.00 and assessed value of P7,570.00 per Tax
Declaration No. 87008-01359, registered in the name of Jose
Modequillo in the office of the Provincial Assessor of Davao del
Sur; and a parcel of agricultural land located at Dalagbong
Bulacan, Malalag, Davao del Sur containing an area of 3
hectares with a market value of P24,130.00 and assessed
value of P9,650.00 per Tax Declaration No. 87-08-01848
registered in the name of Jose Modequillo in the office of the
Provincial Assessor of Davao del Sur. 2
A motion to quash and/or to set aside levy of execution was
filed by defendant Jose Modequillo alleging therein that the
residential land located at Poblacion Malalag is where the
family home is built since 1969 prior to the commencement of
this case and as such is exempt from execution, forced sale or
attachment under Articles 152 and 153 of the Family Code
except for liabilities mentioned in Article 155 thereof, and that
the judgment debt sought to be enforced against the family
home of defendant is not one of those enumerated under
Article 155 of the Family Code. As to the agricultural land
although it is declared in the name of defendant it is alleged to
be still part of the public land and the transfer in his favor by
the original possessor and applicant who was a member of a
cultural minority was not approved by the proper government
agency. An opposition thereto was filed by the plaintiffs.
In an order dated August 26, 1988, the trial court denied the
motion. A motion for reconsideration thereof was filed by
defendant and this was denied for lack of merit on September
2, 1988.
Hence, the herein petition for review on certiorari wherein it is
alleged that the trial court erred and acted in excess of its
jurisdiction in denying petitioner's motion to quash and/or to set
aside levy on the properties and in denying petitioner' motion
for reconsideration of the order dated August 26, 1988.
Petitioner contends that only a question of law is involved in
this petition. He asserts that the residential house and lot was
first occupied as his family residence in 1969 and was duly
constituted as a family home under the Family Code which
took effect on August 4, 1988. Thus, petitioner argues that the
said residential house and lot is exempt from payment of the
obligation enumerated in Article 155 of the Family Code; and
that the decision in this case pertaining to damages arising
from a vehicular accident took place on March 16, 1976 and
which became final in 1988 is not one of those instances
enumerated under Article 155 of the Family Code when the
family home may be levied upon and sold on execution. It is
further alleged that the trial court erred in holding that the said
house and lot became a family home only on August 4, 1988
when the Family Code became effective, and that the Family
Code cannot be interpreted in such a way that all family
residences are deemed to have been constituted as family
homes at the time of their occupancy prior to the effectivity of
the said Code and that they are exempt from execution for the

payment of obligations incurred before the effectivity of said

Code; and that it also erred when it declared that Article 162 of
the Family Code does not state that the provisions of Chapter
2, Title V have a retroactive effect.
Articles 152 and 153 of the Family Code provide as follows:
Art. 152. The family home, constituted jointly
by the husband and the wife or by an
unmarried head of a family, is the dwelling
house where they and their family reside,
and the land on which it is situated.
Art. 153. The family home is deemed
constituted on a house and lot from the time
it is occupied as a family residence. From the
time of its constitution and so long as any of
its beneficiaries actually resides therein, the
family home continues to be such and is
exempt from execution, forced sale or
attachment except as hereinafter provided
and to the extent of the value allowed by law.
Under the Family Code, a family home is deemed constituted
on a house and lot from the time it is occupied as a family
residence. There is no need to constitute the same judicially or
extrajudicially as required in the Civil Code. If the family
actually resides in the premises, it is, therefore, a family home
as contemplated by law. Thus, the creditors should take the
necessary precautions to protect their interest before extending
credit to the spouses or head of the family who owns the home.
Article 155 of the Family Code also provides as follows:
Art. 155. The family home shall be exempt
from execution, forced sale or attachment
except:
(1) For non-payment 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, material men and others
who have rendered service or furnished
material for the construction of the building.
The exemption provided as aforestated is effective from the
time of the constitution of the family home as such, and lasts
so long as any of its beneficiaries actually resides therein.
In the present case, the residential house and lot of petitioner
was not constituted as a family home whether judicially or
extrajudicially under the Civil Code. It became a family home
by operation of law only under Article 153 of the Family Code.
It is deemed constituted as a family home upon the effectivity
of the Family Code on August 3, 1988 not August 4, one year
after its publication in the Manila Chronicle on August 4, 1987
(1988 being a leap year).

The contention of petitioner that it should be considered a

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

[G.R. No. 97898. August 11, 1997]

FLORANTE F. MANACOP, petitioner, vs. COURT OF
APPEALS and E & L MERCANTILE, INC., respondents.
DECISION
PANGANIBAN, J.:
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 i 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 latters decision in Civil
Case No. 53271.

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 companys 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
judicially constituted 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 petitioners
residence was not exempt from execution as it was not duly
constituted as a family home, pursuant to the Civil Code.

The Facts
Petitioner Florante F. Manacopii and his wife Eulaceli
purchased on March 10, 1972 a 446-square-meter residential
lot with a bungalow, in consideration of P75,000.00. iii 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.

Hence, petitioner and his company filed with the Court of

Appeals a petition for certiorari assailing the lower courts
Orders of September 23, 1986 and September 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 petitioners residence had been duly
constituted as a family home to exempt it from execution. On
the second finding, the Court of Appeals added that:
x x x. We agree with the respondent judge that there is no
showing in evidence that petitioner Maacops 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 on Modequillo v.
Breva,iv 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:

Art. 155. The family home shall be exempt from execution,

forced sale or attachment except:

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.

(1) For nonpayment of taxes;

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 Courts 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,v 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, petitioners 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:

(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).
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. vi6
(Underscoring 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 Modequillo require simply the occupancy of
the property by the petitioner, without need for its judicial or
extrajudicial constitution as a family home.vii

Petitioner is only partly correct. True, under the Family Code

which took effect on August 3, 1988,viii 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 ix 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
laws 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
Enumerated in the Code

Restricted

to

Those

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.x Actual
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. xi 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 xii is insufficient compliance with the law.
WHEREFORE, the petition is hereby DENIED for utter lack of
merit. This Decision is immediately executory. Double costs
against petitioner.
SO ORDERED.

PERLA G. PATRICIO,
170829

G.R. No.

Petitioner,

Present:

Panganiban, C.J. (Chairperson),

two sons, Marcelino Marc Dario and private respondent

Marcelino G. Dario III. Among the properties he left was a
parcel of land with a residential house and a pre-school
building built thereon situated at 91 Oxford corner Ermin Garcia
Streets in Cubao, Quezon City, as evidenced by Transfer
Certificate of Title (TCT) No. RT-30731 (175992) of the Quezon
City Registry of Deeds, covering an area of seven hundred fifty
five (755) square meters, more or less.2

On August 10, 1987, petitioner, Marcelino Marc and

private respondent, extrajudicially settled the estate of
Marcelino V. Dario. Accordingly, TCT No. RT-30731 (175992)
was cancelled and TCT No. R-213963 was issued in the
names of petitioner, private respondent and Marcelino Marc.

- versus Ynares-Santiago,

Austria-Martinez,
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.

Callejo, Sr., and

Chico-Nazario, JJ.
MARCELINO G. DARIO III and
THE HONORABLE COURT OF

Promulgated:

APPEALS, Second Division,

Respondents.
November 20, 2006

x
--------------------------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO, J.:

This petition for review on certiorari under Rule 45 of

the Rules of Court seeks to annul and set aside the Resolution
of the Court of Appeals dated December 9, 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 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
2

On July 5, 1987, Marcelino V. Dario died intestate. He

was survived by his wife, petitioner Perla G. Patricio and their

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.

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 10 th
year from the date of death of the decedent. Petitioner argues
that the brothers Marcelino Marc and private respondent
Marcelino III were already of age at the time of the death of
their father,8 hence there is no more minor beneficiary to speak
of.

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

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

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.

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.
9

10

11

12

13

beneficiary, in which case the family home continues until that

beneficiary becomes of age.
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
14

15

It may be deduced from the view of Dr. Tolentino that

as a general rule, the family home may be preserved for a
minimum of 10 years following the death of the spouses or the
unmarried family head who constituted the family home, or of
the spouse who consented to the constitution of his or her
separate property as family home. After 10 years and a minor
beneficiary still lives therein, the family home shall be
preserved only until that minor beneficiary reaches the age of
majority. The intention of the law is to safeguard and protect
the interests of the minor beneficiary until he reaches legal age
and would now be capable of supporting himself. However,
three requisites must concur before a minor beneficiary is
entitled to the benefits of Art. 159: (1) the relationship
enumerated in Art. 154 of the Family Code; (2) they live in the
family home, and (3) they are dependent for legal support
upon the head of the family.

Thus, the issue for resolution now is whether

Marcelino Lorenzo R. Dario IV, the minor son of private
respondent, can be considered as a beneficiary under Article
154 of the Family Code.

As to the first requisite, the beneficiaries of the family home

are: (1) The husband and wife, or an unmarried person who is
the head of a family; and (2) Their parents, ascendants,
descendants, brothers and sisters, whether the relationship be
legitimate or illegitimate. The term descendants contemplates
all descendants of the person or persons who constituted the
family home without distinction; hence, it must necessarily
include the grandchildren and great grandchildren of the
spouses who constitute a family home. Ubi lex non distinguit
nec nos distinguire debemos. Where the law does not
distinguish, we should not distinguish. Thus, private
respondents minor son, who is also the grandchild of deceased
Marcelino V. Dario satisfies the first requisite.

As to the second requisite, minor beneficiaries must

be actually living in the family home to avail of the benefits
derived from Art. 159. Marcelino Lorenzo R. Dario IV, also
known as Ino, the son of private respondent and grandson of
the decedent Marcelino V. Dario, has been living in the family
home since 1994, or within 10 years from the death of the
decedent, hence, he satisfies the second requisite.

However, as to the third requisite, Marcelino Lorenzo

R. Dario IV cannot demand support from his paternal
grandmother if he has parents who are capable of supporting
him. The liability for legal support falls primarily on Marcelino
Lorenzo R. Dario IVs parents, especially his father, herein
private respondent who is the head of his immediate family.
The law first imposes the obligation of legal support upon the
shoulders of the parents, especially the father, and only in their
default is the obligation imposed on the grandparents.

Marcelino Lorenzo R. Dario IV is dependent on legal

support not from his grandmother, but from his father. Thus,
despite residing in the family home and his being a descendant
of Marcelino V. Dario, Marcelino Lorenzo R. Dario IV cannot be
considered as beneficiary contemplated under Article 154
because he did not fulfill the third requisite of being dependent
on his grandmother for legal support. It is his father whom he is
dependent on legal support, and who must now establish his
own family home separate and distinct from that of his parents,
being of legal age.

Legal support, also known as family support, is that which is

provided by law, comprising everything indispensable for
sustenance, dwelling, clothing, medical attendance, education
and transportation, in keeping with the financial capacity of the
family.16 Legal support has the following characteristics: (1) It is
personal, based on family ties which bind the obligor and the
obligee; (2) It is intransmissible; (3) It cannot be renounced; (4)
It cannot be compromised; (5) It is free from attachment or
execution; (6) It is reciprocal; (7) It is variable in amount.17

Professor Pineda is of the view that grandchildren

cannot demand support directly from their grandparents if they
have parents (ascendants of nearest degree) who are capable
of supporting them. This is so because we have to follow the
order of support under Art. 199.18 We agree with this view.

The reasons behind Art. 199 as explained by Pineda

and Tolentino: the closer the relationship of the relatives, the
stronger the tie that binds them. Thus, the obligation to support
under Art. 199 which outlines the order of liability for support is
imposed first upon the shoulders of the closer relatives and
only in their default is the obligation moved to the next nearer
relatives and so on.

There is no showing that private respondent is without means

to support his son; neither is there any evidence to prove that
petitioner, as the paternal grandmother, was willing to
voluntarily provide for her grandsons legal support. On the
contrary, herein petitioner filed for the partition of the property
which shows an intention to dissolve the family home, since
there is no more reason for its existence after the 10-year
period ended in 1997.

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.

With this finding, there is no legal impediment to partition the

subject property.

19

16

20

17

21

18

22

In Vda. de Daffon v. Court of Appeals,23 we held that

an action for partition is at once an action for declaration of coownership and for segregation and conveyance of a
determinate portion of the properties involved. If the court after
trial should find the existence of 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.
G.R. No. L-2474
SO ORDERED.

May 30, 1951

MARIANO ANDAL, assisted by mother Maria Dueas as

guardian ad litem, and MARIA DUEAS, plaintiffs,
vs.
EDUVIGIS MACARAIG, defendant.
Reyes
and
Dy-Liaco
Tible, Tena and Borja for appellees.

for

appellants.

BAUTISTA ANGELO, J.:

Mariano Andal, a minor, assisted by his mother Maria Dueas,
as guardian ad litem, brought an action in the Court of First
Instance of Camarines Sur for the recovery of the ownership
and possession of a parcel of land situated in the barrio of
Talacop, Calabanga, Camarines Sur.

23

24

The complaint alleges that Mariano Andal is the surviving son

of Emiliano Andal and Maria Dueas; that Emiliano Andal died
on September 24, 1942; that Emiliano Andal was the owner of
the parcel of land in question having acquired it from his
mother Eduvigis Macaraig by virtue of a donation propter
nuptias executed by the latter in favor of the former; that
Emiliano Andal had been in possession of the land from 1938
up to 1942, when Eduvigis Macaraig, taking advantage of the

abnormal situation then prevailing, entered the land in

question.
The lower court rendered judgment in favor of the plaintiffs (a)
declaring Mariano Andal the legitimate son of Emiliano Andal
and such entitled to inherit the land in question; (b) declaring
Mariano Andal owner of said land; and (c) ordering the
defendant to pay the costs of suit. Defendant took the case to
this Court upon the plea that only question of law are involved.
It appears undisputed that the land in question was given by
Eduvigis Macaraig to her son Emiliano Andal by virtue of a
donation propter nuptias she has executed in his favor on the
occasion of his marriage to Maria Dueas. If the son born to
the couple is deemed legitimate, then he is entitled to inherit
the land in question. If otherwise, then the land should revert
back to Eduvigis Macaraig as the next of kin entitled to
succeed him under the law. The main issue, therefore, to be
determined hinges on the legitimacy of Mariano Andal in so far
as his relation to Emiliano Andal is concerned. The
determination of this issue much depends upon the relationship
that had existed between Emiliano Andal and his wife during
the period of conception of the child up to the date of his birth
in connection with the death of the alleged father Emiliano
Andal.
The following facts appear to have been proven: Emiliano
Andal became sick of tuberculosis in January 1941. Sometime
thereafter, his brother, Felix, went to live in his house to help
him work his house to help him work his farm. His sickness
became worse that on or about September 10, 1942, he
became so weak that he could hardly move and get up from
his bed. On September 10, 1942, Maria Duenas, his wife,
eloped with Felix, and both went to live in the house of Maria's
father, until the middle of 1943. Since May, 1942, Felix and
Maria had sexual intercourse and treated each other as
husband and wife. On January 1, 1943, Emiliano died without
the presence of his wife, who did not even attend his funeral.
On June 17, 1943, Maria Dueas gave birth to a boy, who was
given the name of Mariano Andal. Under these facts, can the
child be considered as the legitimate son of Emiliano?
Article 108 of the Civil Code provides:
Children born after the one hundred and eighty days next
following that of the celebration of marriage or within the three
hundred days next following its dissolution or the separation of
the spouses shall be presumed to be legitimate.
This presumption may be rebutted only by proof that it was
physically impossible for the husband to have had access to
his wife during the first one hundred and twenty days of the
three hundred next preceding the birth of the child.
Since the boy was born on June 17, 1943, and Emiliano Andal
died on January 1, 1943, that boy is presumed to be the
legitimate son of Emiliano and his wife, he having been born
within three hundred (300) days following the dissolution of the
marriage. This presumption can only be rebutted by proof that
it was physically impossible for the husband to have had
access to his wife during the first 120 days of the 300 next
preceding the birth of the child. Is there any evidence to prove
that it was physically impossible for Emiliano to have such
access? Is the fact that Emiliano was sick of tuberculosis and
was so weak that he could hardly move and get up from his
bed sufficient to overcome this presumption?

Manresa on this point says:

Impossibility of access by husband to wife would include (1)
absence during the initial period of conception, (2) impotence
which is patent, continuing and incurable, and (3)
imprisonment, unless it can be shown that cohabitation took
place through corrupt violation of prison regulations. Manresa,
492-500, Vol. I, cited by Dr. Arturo Tolentino in his book
"Commentaries and Jurisprudence on the Civil Code, Vol. 1,
p.90)."
There was no evidence presented that Emiliano Andal was
absent during the initial period of conception, specially during
the period comprised between August 21, 1942 and September
10, 1942, which is included in the 120 days of the 300 next
preceding the birth of the child Mariano Andal. On the contrary,
there is enough evidence to show that during that initial period,
Emiliano Andal and his wife were still living under the marital
roof. Even if Felix, the brother, was living in the same house,
and he and the wife were indulging in illicit intercourse since
May, 1942, that does not preclude cohabitation between
Emiliano and his wife. We admit that Emiliano was already
suffering from tuberculosis and his condition then was so
serious that he could hardly move and get up from bed, his feet
were swollen and his voice hoarse. But experience shows that
this does not prevent carnal intercourse. There are cases
where persons suffering from this sickness can do the carnal
act even in the most crucial stage because they are more
inclined to sexual intercourse. As an author has said, "the
reputation of the tuberculosis towards eroticism (sexual
propensity) is probably dependent more upon confinement to
bed than the consequences of the disease." (An Integrated
Practice of Medicine, by Hyman, Vol. 3, p.2202). There is
neither evidence to show that Emiliano was suffering from
impotency, patent, continuous and incurable, nor was there
evidence that he was imprisoned. The presumption of
legitimacy under the Civil Code in favor of the child has not,
therefore, been overcome.
We can obtain the same result viewing this case under section
68, par. (c) of Rule 123, of the Rules of Court, which is
practically based upon the same rai'son d'etre underlying the
Civil Code. Said section provides:
The issue of a wife cohabiting with the husband who is not
impotent, is indisputably presumed to be legitimate, if not born
within one hundred eighty days immediately succeeding the
marriage, or after the expiration of three hundred days
following its dissolution.
We have already seen that Emiliano and his wife were living
together, or at least had access one to the other, and Emiliano
was not impotent, and the child was born within three (300)
days following the dissolution of the marriage. Under these
facts no other presumption can be drawn than that the issue is
legitimate. We have also seen that this presumption can only
be rebutted by clear proof that it was physically or naturally
impossible for them to indulge in carnal intercourse. And here
there is no such proof. The fact that Maria Dueas has
committed adultery can not also overcome this presumption
(Tolentino's Commentaries on the Civil Code, Vol. I, p. 92).
In view of all the foregoing, we are constrained to hold that the
lower court did not err in declaring Mariano Andal as the
legitimate son of the spouses Emiliano Andal and Maria
Dueas.

Wherefore, the decision appealed from is affirmed, without

pronouncement as to costs.

[G.R. No. 138493. June 15, 2000]

TEOFISTA BABIERA, petitioner, vs. PRESENTACION B.
CATOTAL, respondent.
DECISION
PANGANIBAN, J.:
A birth certificate may be ordered cancelled upon adequate
proof that it is fictitious. Thus, void is a certificate which shows
that the mother was already fifty-four years old at the time of
the 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.
Statement of the Case
Submitted for this Courts consideration is a Petition for Review
on Certiorari25 under Rule 45 of the Rules of Court, seeking
25

reversal of the March 18, 1999 Decision 26 of the Court of

Appeals27 (CA) in CA-GR CV No. 56031. Affirming the
Regional Trial Court of Lanao del Norte in Special Proceedings
No. 3046, the CA ruled as follows:
"IN VIEW HEREOF, the appealed decision is hereby
AFFIRMED. Accordingly, the instant appeal is DISMISSED for
lack of merit. Costs against the defendant-appellant,
TEOFISTA BABIERA, a.k.a. Teofista Guinto."28
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.

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 Barbiera'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.

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 (herafter referred to as
TEOFISTA) in the Civil Registry of Iligan City. The case was
docketed as Special Proceedings No. 3046.
"From the petition filed, PRESENTACION asserted 'that she is
the only surviving child of the late spouses Eugenio Babiera
and Hermogena Cariosa, who died on May 26, 1996 and July
6, 1990 respectively; that on September 20, 1996 a baby girl
was delivered by 'hilot' in the house of spouses Eugenio and
Hermogena Babiera and without the knowledge of said
spouses, Flora Guinto, the mother of the child and a
housemaid of spouses Eugenio and Hermogena Babiera,
caused the registration/recording of the facts of birth of her
child, by simulating that she was the child of the spouses
Eugenio, then 65 years old and Hermogena, then 54 years old,
and made Hermogena Babiera appear as the mother by
forging her signature x x x; that petitioner, then 15 years old,
saw with her own eyes and personally witnessed Flora Guinto
give birth to Teofista Guinto, in their house, assisted by 'hilot';
that the birth certificate x x x of Teofista Guinto is void ab initio,
as it was totally a simulated birth, signature of informant forged,
and it contained false entries, to wit: a) The child is made to

"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] plantiff 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 Carioza Babiera; that plaintiff has no legal capacity
to file the instant petition pursuant to Article 171 of the Family
Code; and finally that the instant petition is barred by
prescription in accordance with Article 170 of the Family Code."

26

29

27

Ruling of the Court of Appeals

28

29

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 childs Birth Certificate for being void ab
initio on the ground that the child did not belong to either the
father or the mother.
Hence, this appeal.

30

the party entitled to the avails of the suit." 33 The interest of

respondent in the civil status of petitioner stems from an action
for partition which the latter filed against the former.34 The case
concerned the properties inherited by respondent from her
parents.
Moreover, Article 171 of the Family Code is not applicable to
the present case. A close reading of this provision shows that it
applies to instances in which the father impugns the legitimacy
of his wifes child. The provision, however, presupposes that the
child was the undisputed offspring of the mother. The present
case alleges and shows that Hermogena did not give birth to
petitioner. In other words, the prayer herein is not to declare
that petitioner is an illegitimate child of Hermogena, but to
establish that the former is not the latter's child at all. Verily, the
present action does not impugn petitioners filiation to Spouses
Eugenio and Hermogena Babiera, because there is no blood
relation to impugn in the first place.
In Benitez-Badua v. Court of Appeals,35 the Court ruled thus:
"Petitioners insistence on the applicability of Articles 164, 166,
170 and 171 of the Family Code to the case at bench cannot
be sustained. These articles provide:

Issues

x x x.....x x x.....x x x

Petitioner presents the following assignment of errors:

"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:

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

have the legal capacity to file the special proceeding of appeal
under CA GR No. CV-56031 subject matter of this review on
certiorari;
2) The special proceeding on appeal under CA GR No. CV56031 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."31
The Courts Ruling
The Petition is not meritorious.
First Issue: Subject of the Present Action
Petitioner contends that respondent has no standing to sue,
because Article 17132 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

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

30

33

31

34

32

35

childless deceased aunt. They do not claim that petitioner

Violeta Cabatbat Lim is an illegitimate child of the deceased,
but that she is not the decedents child at all. Being neither [a]
legally adopted child, nor an acknowledged natural child, nor a
child by legal fiction of Esperanza Cabatbat, Violeta is not a
legal heir of the deceased."36 (Emphasis 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:

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 Eugenios. The deposition reads in part:
"q.....Who are your children?
a.....Presentation and Florentino Babiera.

"Art. 170. The action to impugn the legitimacy of the child shall
be brought within one year from the knowledge of the birth or
its recording in the civil register, if the husband or, in a proper
case, any of his heirs, should reside in the city or municipality
where the birth took place or was recorded.
"If the husband or, in his default, all of his heirs do not reside at
the place of birth as defined in the first paragraph or where it
was recorded, the period shall be two years if they should
reside in the Philippines; and three years if abroad. If the birth
of the child has been concealed from or was unknown to the
husband or his heirs, the period shall be counted from the
discovery or knowledge of the birth of the child or of the fact of
registration of said birth, whichever is earlier."
This argument is bereft of merit. The present action involves
the cancellation of petitioners Birth Certificate; it does not
impugn her legitimacy. Thus, the prescriptive period set forth in
Article 170 of the Family Code does not apply. Verily, the action
to nullify the Birth Certificate does not prescribe, because it
was allegedly void ab initio.37
Third Issue: Presumption in Favor of the Birth Certificate
Lastly, petitioner argues that the evidence presented,
especially Hermogenas testimony that petitioner was not her
real child, cannot overcome the presumption of regularity in the
issuance of the Birth Certificate.
While it is true that an official document such as petitioners
Birth Certificate enjoys the presumption of regularity, the
specific facts attendant in the case at bar, as well as the totality
of the evidence presented during trial, sufficiently negate such
presumption. First, there were already irregularities regarding
the Birth Certificate itself. It was not signed by the local civil
registrar.38 More important, the Court of Appeals observed that
the mothers signature therein was different from her signatures
in other documents presented during the trial.
Second, the circumstances surrounding the birth of petitioner
show that Hermogena is not the former's real mother. For one,
there is no evidence of Hermogenas pregnancy, such as
medical records and doctors prescriptions, other than the Birth
Certificate itself. In fact, no witness was presented to attest to
the pregnancy of Hermogena during that time. Moreover, at the

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.
x x x.....x x x.....x x x
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."39
Relying merely on the assumption of validity of the Birth
Certificate, petitioner has presented no other evidence other
than the said document to show that she is really Hermogenas
child. Neither has she provided any reason why her supposed
mother would make a deposition stating that the former was
not the 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 respondents parents.
WHEREFORE, the Petition is hereby DENIED and the assailed
Decision AFFIRMED. Costs against petitioner.
SO ORDERED.

36

37

38

39

G.R. No. 105625 January 24, 1994

MARISSA
BENITEZ-BADUA,
petitioner,
vs.
COURT OF APPEALS, VICTORIA BENITEZ LIRIO AND
FEODOR BENITEZ AGUILAR, respondents.
Reynaldo M. Alcantara for petitioner.
Augustus Cesar E. Azura for private respondents.

PUNO, J.:
This is a petition for review of the Decision of the 12th Division
of the Court of Appeals in CA-G.R. No. CV No. 30862 dated
May 29, 1992. 1
The facts show that the spouses Vicente Benitez and Isabel
Chipongian owned various properties especially in Laguna.
Isabel died on April 25, 1982. Vicente followed her in the grave
on November 13, 1989. He died intestate.
The fight for administration of 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 an
continuously treated her as their legitimate daughter. On the
other hand, private respondents tried to prove, mostly thru
testimonial evidence, that the said spouses failed to beget a
child during their marriage; that the late Isabel, then thirty six
(36) years of age, was even referred to Dr. Constantino
Manahan, a noted obstetrician-gynecologist, for treatment.
Their primary witness, Victoria Benitez-Lirio, elder sister of the
late Vicente, then 77 years of age, 2 categorically declared that
petitioner was not the biological child of the said spouses who
were unable to physically procreate.
On December 17, 1990, the trial court decided in favor of the
petitioner. It dismissed the private respondents petition for
letters and administration and declared petitioner as the
legitimate daughter and sole heir of the spouses Vicente O.
Benitez and Isabel Chipongian. The trial court relied on Articles
166 and 170 of the Family Code.
On appeal, however, the Decision of the trial court was
reversed on May 29, 1992 by the 17th Division of the Court of
Appeals. The dispositive portion of the Decision of the
appellate court states:
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 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 and 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.
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, which ever 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

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
Article 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 Benitez and 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
daughter and entitled to inherit from them as such.

3) If the child was born after the death of the husband.

The strong and convincing evidence referred to us are the

following:

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

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 wellknown 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
drugstore in the ground floor of her house, but 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 it is also true with the
rest of their townmates. Ressureccion 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 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
wads 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 the Benitez home in Avenida
Rizal, Nagcarlan, Laguna, with no physician or even a midwife
attending?
At this juncture, it might be meet to mention that it has become
a practice in recent times for people who want to avoid the
expense and trouble of a judicial adoption to simply register the
child as their supposed child in the civil registry. Perhaps Atty.
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 a 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 not really his and his wife's
daughter and descendant and, therefore, not his deceased
wife's 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.
Fourth, it is likewise odd and strange, if appellee Marissa
Benitez is really the daughter and only legal heir of the
spouses Vicente O. Benitez and Isabel Chipongian, that the
latter, before her death, would write a note to her husband and
Marissa stating that:
even without any legal papers, I wish that my husband and my
child or only daughter will inherit what is legally my own
property, in case I die without a will,
and in the same handwritten note, she even implored her
husband
that any inheritance due him from my 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 Victoria
Benitez 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 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 their notarized
document, they stated that "(they) are the sole heirs of the
deceased Isabel Chipongian because she died without
descendants or ascendants". In executing this Deed, Vicente
Benitez effectively repudiated the Certificate of Live Birth of
petitioner where it appeared that he was petitioner's father. The
repudiation was made twenty-eight years after he signed
petitioner's Certificate of Live Birth.
IN VIEW WHEREOF, the petition for review is dismissed for
lack of merit. Costs against petitioner.
SO ORDERED.

[G.R. No. 128314. May 29, 2002]

RODOLFO V. JAO, petitioner, vs. COURT OF APPEALS and
PERICO V. JAO, respondents.
DECISION
YNARES-SANTIAGO, J.:
Rodolfo and Perico Jao were the only sons of the spouses
Ignacio Jao Tayag and Andrea V. Jao, who died intestate in
1988 and 1989, respectively. The decedents left real estate,
cash, shares of stock and other personal properties.
On April 17, 1991, Perico instituted a petition for issuance of
letters of administration before the Regional Trial Court of
Quezon City, Branch 99, over the estate of his parents,
docketed as Special Proceedings No. Q-91-8507.xiii Pending
the appointment of a regular administrator, Perico moved that
he be appointed as special administrator. He alleged that his
brother, Rodolfo, was gradually dissipating the assets of the
estate. More particularly, Rodolfo was receiving rentals from
real properties without rendering any accounting, and forcibly
opening vaults belonging to their deceased parents and
disposing of the cash and valuables therein.
Rodolfo moved for the dismissal of the petition on the ground
of improper venue.xiv He argued that the deceased spouses did
not reside in Quezon City either during their lifetime or at the
time of their deaths. The decedents actual residence was in
Angeles City, Pampanga, where his late mother used to run
and operate a bakery. As the health of his parents deteriorated
due to old age, they stayed in Rodolfos residence at 61 Scout
Gandia Street, Quezon City, solely for the purpose of obtaining
medical treatment and hospitalization. Rodolfo submitted
documentary evidence previously executed by the decedents,
consisting of income tax returns, voters affidavits, statements

of assets and liabilities, real estate tax payments, motor vehicle

registration and passports, all indicating that their permanent
residence was in Angeles City, Pampanga.
In his opposition,xv Perico countered that their deceased
parents actually resided in Rodolfos house in Quezon City at
the time of their deaths. As a matter of fact, it was conclusively
declared in their death certificates that their last residence
before they died was at 61 Scout Gandia Street, Quezon City. xvi
Rodolfo himself even supplied the entry appearing on the
death certificate of their mother, Andrea, and affixed his own
signature on the said document.
Rodolfo filed a rejoinder, stating that he gave the information
regarding the decedents residence on the death certificates in
good faith and through honest mistake. He gave his residence
only as reference, considering that their parents were treated in
their late years at the Medical City General Hospital in
Mandaluyong, Metro Manila. Their stay in his house was
merely transitory, in the same way that they were taken at
different times for the same purpose to Pericos residence at
Legaspi Towers in Roxas Boulevard. The death certificates
could not, therefore, be deemed conclusive evidence of the
decedents residence in light of the other documents showing
otherwise.xvii
The court required the parties to submit their respective
nominees for the position.xviii Both failed to comply, whereupon
the trial court ordered that the petition be archived.xix
Subsequently, Perico moved that the intestate proceedings be
revived.xx After the parties submitted the names of their
respective nominees, the trial court designated Justice Carlos
L. Sundiam as special administrator of the estate of Ignacio
Jao Tayag and Andrea Jao.xxi
On April 6, 1994, the motion to dismiss filed by petitioner
Rodolfo was denied, to wit:
A mere perusal of the death certificates of the spouses issued
separately in 1988 and 1989, respectively, confirm the fact that
Quezon City was the last place of residence of the decedents.
Surprisingly, the entries appearing on the death certificate of
Andrea V. Jao were supplied by movant, Rodolfo V. Jao,
whose signature appears in said document. Movant, therefore,
cannot disown his own representation by taking an inconsistent
position other than his own admission. xxx xxx xxx.

SO ORDERED.xxiii
Rodolfos motion for reconsideration was denied by the Court of
Appeals in the assailed resolution dated February 17, 1997. xxiv
Hence, this petition for review, anchored on the following
grounds:
I
RESPONDENT COURT HAD DECIDED A QUESTION OF
SUBSTANCE IN A WAY NOT IN ACCORD WITH THE LAW
AND IS DIRECTLY CONTRADICTORY TO THE APPLICABLE
DECISION ALREADY RENDERED BY THIS HONORABLE
COURT.
II
RESPONDENT COURT ERRED IN DISREGARDING THE
RULING OF THIS HONORABLE COURT IN THE CASE OF
EUSEBIO VS. EUSEBIO, 100 PHILS. 593, WHICH CLEARLY
INTERPRETED WHAT IS MEANT BY RESIDENCE IN SEC. 1
OF RULE 73 OF THE RULES OF COURT.
III
RESPONDENT COURT ERRED IN HOLDING THAT
PHYSICAL PRESENCE IN A PLACE AT THE TIME OF DEATH
IS DETERMINATIVE OF DECEDENTS RESIDENCE RATHER
THAN THE INTENTION OF THE DECEDENTS TO
ESTABLISH THEIR PERMANENT RESIDENCE IN ANOTHER
PLACE.
IV
RESPONDENT COURT ERRED IN APPLYING BY ANALOGY
THE RESIDENCE CONTEMPLATED IN SEC. 2 OF RULE 4
FOR THE PURPOSE OF SERVING SUMMONS TO A
DEFENDANT IN A PERSONAL ACTION TO THE RESIDENCE
CONTEMPLATED IN SEC. 1 OF RULE 73 FOR THE
PURPOSE OF DETERMINING VENUE IN THE SETTLEMENT
OF THE ESTATE OF A DECEASED.
V

WHEREFORE, in view of the foregoing consideration, this

court DENIES for lack of merit movants motion to dismiss.

RESPONDENT COURT ERRED IN GIVING MORE WEIGHT

TO THE ENTRY OF PETITIONER AND PRIVATE
RESPONDENT
IN
THE
RESPECTIVE
DEATH
CERTIFICATES OF THE DECEDENTS RATHER THAN THE
OVERWHELMING EVIDENCE SHOWING THE CLEAR
INTENTION OF THE DECEDENTS TO ESTABLISH THEIR
PERMANENT RESIDENCE IN ANGELES CITY.

SO ORDERED.xxii

VI

Rodolfo filed a petition for certiorari with the Court of Appeals,

which was docketed as CA-G.R. SP No. 35908. On December
11, 1996, the Court of Appeals rendered the assailed decision,
the dispositive portion of which reads:

RESPONDENT COURT ERRED IN APPLYING THE

PRINCIPLE OF ESTOPPEL AS AGAINST PETITIONER
WHICH CAN NOT BE MORE PERSUASIVE THAN THE
CLEAR INTENTION OF THE DECEDENTS THEMSELVES TO
ESTABLISH PERMANENT RESIDENCE IN ANGELES CITY.

WHEREFORE, no error, much less any grave abuse of

discretion of the court a quo having been shown, the petition
for certiorari is hereby DISMISSED. The questioned order of
the respondent Judge is affirmed in toto.

VII

RESPONDENT COURT ERRED IN DISMISSING THE

PETITION FOR CERTIORARI DESPITE THE CLEAR ABUSE
OF DISCRETION ON THE PART OF THE TRIAL COURT IN
INSISTING TO TAKE COGNIZANCE OF SP. PROCEEDING
NO. Q-91-8507.xxv

In the case at bar, there is substantial proof that the decedents

have transferred to petitioners Quezon City residence.
Petitioner failed to sufficiently refute respondents assertion that
their elderly parents stayed in his house for some three to four
years before they died in the late 1980s.

The main issue before us is: where should the settlement

proceedings be had --- in Pampanga, where the decedents had
their permanent residence, or in Quezon City, where they
actually stayed before their demise?

Furthermore, the decedents respective death certificates state

that they were both residents of Quezon City at the time of their
demise. Significantly, it was petitioner himself who filled up his
late mothers death certificate. To our mind, this unqualifiedly
shows that at that time, at least, petitioner recognized his
deceased mothers residence to be Quezon City. Moreover,
petitioner failed to contest the entry in Ignacios death
certificate, accomplished a year earlier by respondent.

Rule 73, Section 1 of the Rules of Court states:

Where estate of deceased persons be settled. If the decedent
is an inhabitant of the Philippines at the time of his death,
whether a citizen or an alien, his will shall be proved, or letters
of administration granted, and his estate settled, in the Court of
First Instance in the province in which he resides at the time of
his death, and if he is an inhabitant of a foreign country, the
Court of First Instance of any province in which he had estate.
The court first taking cognizance of the settlement of the estate
of a decedent shall exercise jurisdiction to the exclusion of all
other courts. The jurisdiction assumed by a court, so far as it
depends on the place of residence of the decedent, or of the
location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the original
case, or when the want of jurisdiction appears on the record.
(underscoring ours)
Clearly, the estate of an inhabitant of the Philippines shall be
settled or letters of administration granted in the proper court
located in the province where the decedent resides at the time
of his death.
Petitioner Rodolfo invokes our ruling in the case of Eusebio v.
Eusebio, et al.,xxvi where we held that the situs of settlement
proceedings shall be the place where the decedent had his
permanent residence or domicile at the time of death. In
determining residence at the time of death, the following
factors must be considered, namely, the decedent had: (a)
capacity to choose and freedom of choice; (b) physical
presence at the place chosen; and (c) intention to stay therein
permanently.xxvii While it appears that the decedents in this
case chose to be physically present in Quezon City for medical
convenience, petitioner avers that they never adopted Quezon
City as their permanent residence.
The contention lacks merit.
The facts in Eusebio were different from those in the case at
bar. The decedent therein, Andres Eusebio, passed away while
in the process of transferring his personal belongings to a
house in Quezon City. He was then suffering from a heart
ailment and was advised by his doctor/son to purchase a
Quezon City residence, which was nearer to his doctor. While
he was able to acquire a house in Quezon City, Eusebio died
even before he could move therein. In said case, we ruled that
Eusebio retained his domicile --- and hence, residence --- in
San Fernando, Pampanga. It cannot be said that Eusebio
changed his residence because, strictly speaking, his physical
presence in Quezon City was just temporary.

The recitals in the death certificates, which are admissible in

evidence, were thus properly considered and presumed to be
correct by the court a quo. We agree with the appellate courts
observation that since the death certificates were
accomplished even before petitioner and respondent quarreled
over their inheritance, they may be relied upon to reflect the
true situation at the time of their parents death.
The death certificates thus prevailed as proofs of the
decedents residence at the time of death, over the numerous
documentary evidence presented by petitioner. To be sure, the
documents presented by petitioner pertained not to residence
at the time of death, as required by the Rules of Court, but to
permanent residence or domicile. In Garcia-Fule v. Court of
Appeals,xxviii we held:
xxx xxx xxx the term resides connotes ex vi termini actual
residence as distinguished from legal residence or domicile.
This term resides, like the terms residing and residence, is
elastic and should be interpreted in the light of the object or
purpose of the statute or rule in which it is employed. In the
application of venue statutes and rules Section 1, Rule 73 of
the Revised Rules of Court is of such nature residence rather
than domicile is the significant factor. Even where the statute
uses the word domicile still it is construed as meaning
residence and not domicile in the technical sense. Some cases
make a distinction between the terms residence and domicile
but as generally used in statutes fixing venue, the terms are
synonymous, and convey the same meaning as the term
inhabitant. In other words, resides should be viewed or
understood in its popular sense, meaning, the personal, actual
or physical habitation of a person, actual residence or place of
abode. It signifies physical presence in a place and actual stay
thereat. In this popular sense, the term means merely
residence, that is, personal residence, not legal residence or
domicile. Residence simply requires bodily presence as an
inhabitant in a given place, while domicile requires bodily
presence in that place and also an intention to make it ones
domicile. No particular length of time of residence is required
though; however, the residence must be more than
temporary.xxix
Both the settlement court and the Court of Appeals found that
the decedents have been living with petitioner at the time of
their deaths and for some time prior thereto. We find this
conclusion to be substantiated by the evidence on record. A

close perusal of the challenged decision shows that, contrary

to petitioners assertion, the court below considered not only the
decedents physical presence in Quezon City, but also other
factors indicating that the decedents stay therein was more
than temporary. In the absence of any substantial showing that
the lower courts factual findings stemmed from an erroneous
apprehension of the evidence presented, the same must be
held to be conclusive and binding upon this Court.
Petitioner strains to differentiate between the venue provisions
found in Rule 4, Section 2,xxx on ordinary civil actions, and Rule
73, Section 1, which applies specifically to settlement
proceedings. He argues that while venue in the former
understandably refers to actual physical residence for the
purpose of serving summons, it is the permanent residence of
the decedent which is significant in Rule 73, Section 1.
Petitioner insists that venue for the settlement of estates can
only refer to permanent residence or domicile because it is the
place where the records of the properties are kept and where
most of the decedents properties are located.
Petitioners argument fails to persuade.
It does not necessarily follow that the records of a persons
properties are kept in the place where he permanently resides.
Neither can it be presumed that a persons properties can be
found mostly in the place where he establishes his domicile. It
may be that he has his domicile in a place different from that
where he keeps his records, or where he maintains extensive
personal and business interests. No generalizations can thus
be formulated on the matter, as the question of where to keep
records or retain properties is entirely dependent upon an
individuals choice and peculiarities.
At any rate, petitioner is obviously splitting straws when he
differentiates between venue in ordinary civil actions and
venue in special proceedings. In Raymond v. Court of
Appealsxxxi and Bejer v. Court of Appeals, xxxii we ruled that
venue for ordinary civil actions and that for special proceedings
have one and the same meaning. As thus defined, residence,
in the context of venue provisions, means nothing more than a
persons actual residence or place of abode, provided he
resides therein with continuity and consistency.xxxiii All told, the
lower court and the Court of Appeals correctly held that venue
for the settlement of the decedents intestate estate was
properly laid in the Quezon City court.
WHEREFORE, in view of the foregoing, the petition is
DENIED, and the decision of the Court of Appeals in CA-G.R.
SP No. 35908 is AFFIRMED.
SO ORDERED.

G.R. No. 104376 February 23, 1994

ARTEMIO
G.
ILANO,
petitioner,
vs.
THE COURT OF APPEALS and MERCEDITAS (sic) S.
ILANO, represented by her mother, LEONCIA DE LOS
SANTOS, respondent.
Ernesto P. Pangalangan for petitioner.
Eduardo S. Rodriguez for private respondent.

NOCON, J.:
After the great flood, man was commanded to go forth, be
fertile, multiply and fill the earth. Others did not heed the
sequence of this command because they multiply first and then
go. Corollarily, it is now commonplace for an abandoned
illegitimate offspring to sue his father for recognition and
support.
The antecedent facts are narrated in the trial court's decision,
as follows:
Leoncia first met petitioner Artemio G. Ilano while she was
working as secretary to Atty. Mariano C. Virata. Petitioner was
one
of
the
clients
of
Atty. Virata. On several occasions, she and petitioner took
lunch together. In less that a year's time, she resigned from her
work.
Sometime in 1957, Leoncia, then managing a business of her
own as Namarco distributor, met petitioner again who was
engaged in the same business and they renewed
acquaintances. Since then, he would give her his unsold
allocation of goods. Later, he courted her more than four years.
Their relationship became intimate and with his promise of
marriage, they eloped to Guagua, Pampanga in April, 1962.
They stayed at La Mesa Apartment, located behind the

Filipinas Telephone Company branch office, of which he is the

president and general manager. He came home to her three or
four times a week.

morning for his signature. However, he left an instruction to

give birth certificate to Leoncia for her signature, as he was
leaving early the following morning.

The apartment was procured by Melencio Reyes, Officer-inCharge of the Filipinas Telephone Company branch office. He
also took care of the marketing and paid rentals, lights and
water bills. 1 Unable to speak the local dialect, Leoncia was
provided also by Melencio with a maid by the name of Nena.
Petitioner used to give her P700.00 a month for their expenses
at home.

Prior to the birth of Merceditas, Elynia used to accompany her

aunt and sometimes with petitioner in his car to the Manila
Sanitarium
for
prenatal
check-up. At times, she used to go to his office at 615 Sales
St., Sta. Cruz, Manila, upon his instructions to get money as
support and sometimes he would send notes of explanation if
he cannot come which she in turn gave to her aunt. 15 They
stayed at 112 Arellano St., then Sta. Cruz, Manila in 1966
before they finally transferred to Gagalangin in 1967. Petitioner
lived with them up to June, 1971 when he stopped coming
home.

In June, 1962, Leoncia, who was conceiving at that time, was

fetched by petitioner and they transferred to San Juan St.,
Pasay City. In October, 1962, she delivered a still-born female
child at the Manila Sanitarium. The death certificate was signed
by petitioner. 2 Thereafter, while they were living at Highway 54,
Makati, private respondent Merceditas S. Ilano was born on
December 30, 1963 also at the Manila Sanitarium. Her birth
was recorded as Merceditas de los Santos Ilano, child of
Leoncia Aguinaldo de los Santos and Artemio Geluz Ilano. 3
Leoncia submitted receipts issued by the Manila Sanitarium to
show that she was confined there from December 30, 1963
until January 2, 1964 under the name of Mrs. Leoncia Ilano. 4
The support by petitioner for Leoncia and Merceditas was
sometimes in the form of cash personally delivered by him, thru
Melencio, thru Elynia (niece of Leoncia) 5 or thru Merceditas
herself; 6 and sometimes in the form of a check like Manila
Banking Corporation Check No. 81532, 7 the signature
appearing thereon having been identified by Leoncia as that of
petitioner because he often gives her checks which he issues
at home and saw him sign the checks. 8 Both petitioner and his
daughter admitted that the check and the signature are those
of the former. 9
During the time that petitioner and Leoncia were living as
husband and wife, he showed concern as the father of
Merceditas. When Merceditas was in Grade I at the St. Joseph
Parochial School, he signed her Report Card for the fourth and
fifth grading periods 10 as her parent. Those signatures were
both identified by Leoncia and Merceditas because he signed
them in their residence in their presence and of Elynia. 11 Since
Merceditas started to have discernment, he was already the
one whom she recognized as her Daddy. 12 He treated her as a
father would to his child. He would bring home candies, toys,
and anything a child enjoys. He would take her for a drive, eat
at restaurants, and even cuddle her to sleep. 13
When petitioner ran as a candidate in the Provincial Board of
Cavite, he gave Leoncia his picture with the following
dedication: "To Nene, with best regards, Temiong." 14
In May, 1963, Ruth Elynia Mabanglo, niece of Leoncia, lived
with Leoncia and petitioner. She accompanied her aunt when
she started having labor pains in the morning of December 30,
1963. Petitioner arrived after five o'clock in the afternoon.
When the nurse came to inquire about the child, Leoncia was
still unconscious so it was from petitioner that the nurse sought
the information. Inasmuch as it was already past seven o'clock
in the evening, the nurse promised to return the following

Petitioner's defense was a total and complete denial of any

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

be true that her husband, during the years 1963 to 1968, lived
three (3) times a week with a certain Leoncia de los Santos
because her husband never slept out of their house and that in
his capacity as President and Chairman of the Board of the
Filipinas Telephone Company he does not go to Guagua even
once a year because they have a branch manager, Melencio
Reyes.

The motion for reconsideration was denied in the resolution

dated February 26, 1992. 20

After weighing the contradictory testimonies and evidence of

the parties, the trial court was not fully satisfied that petitioner
is the father of Merceditas, on the basis of the following:

1) in awarding "back support" even in the absence of

recognition or of a judgment declaring petitioner father of
Merceditas with finality;

1) petitioner and Leoncia were not in cohabitation during the

period of Merceditas' conception;

2) in not ruling that an adulterous child cannot file an action for

recognition; and

2) testimony of Melencio that he frequented the apartment

where Leoncia was living, took care of all the bills and shared
the same bed with her;

3) in deciding matters of substance manifestly against

established decisions of this Court.

3) the birth certificate of Merceditas was not signed by

petitioner;
4) petitioner denied his signature in the monthly report card of
Merceditas; and
5) there is no clear and sufficient showing that support was
given by petitioner to Merceditas.
Thus it rendered judgment on April 24, 1981 dismissing the
complaint. 18
Fortunately for private respondent, respondent Court of
Appeals did not share the same view as the trial court. A review
of the testimonial and documentary evidenced adduced by
private respondent led respondent court to the firm conclusion
that petitioner is her father, entitling her to support. The
dispositive portion of its decision dated December 17, 1991
reads:
WHEREFORE, the Decision appealed from is REVERSED and
judgment is hereby rendered declaring plaintiff MERCEDITAS
S. ILANO as the duly acknowledged and recognized
illegitimate child of defendant ARTEMIO G. ILANO with all the
right appurtenant to such status.
Defendant is directed to pay the plaintiff support in arrears at
the rate of EIGHT HUNDRED (P800.00) PESOS a month from
the date of the filing of the complaint on August 16, 1972 up to
August 15, 1975; ONE THOUSAND (P1,000.00) PESOS a
month from August 16, 1975 to August 15, 1978; ONE
THOUSAND THREE HUNDRED (P1,300.00) PESOS a month
from August 16, 1978 to August 15, 1981; and ONE
THOUSAND FIVE HUNDRED (P1,500.00) a month from
August 16, 1981 up to the time she reached the age of majority
on December 30, 1984.
Defendant is further ordered to pay the plaintiff the sum of
P10,000.00 as attorney's fees plus the costs.
SO ORDERED. 19

Hence, the present petition.

We shall resolve the following pertinent errors allegedly
committed by respondent court:

Petitioner argues that since the complaint against him has

been dismissed by the trial court, therefore was absolutely no
obligation on his part to give support to Merceditas. It would
have been only from the date of the judgment of the trial court
that support should have commenced, if so granted. Under the
law in force when the complaint was filed, an adulterous child
cannot maintain an action for compulsory recognition. In order
that the birth certificate may constitute a voluntary recognition,
it must be signed by the father. Equivocal act, such as signing
under the caption "parent" in the report card, is not sufficient.
Merceditas has never been to the family home of petitioner at
Imus, Cavite; nor introduced to his family; nor brought around
town by him, treated as his child, introduced to other people as
his child, led people to believe that she was part of his family.
The petition utterly lacks merit.
Under the then prevailing provisions of the Civil Code,
illegitimate children or those who are conceived and born out of
wedlock were generally classified into two groups: (1) Natural,
whether actual or by fiction, were those born outside of lawful
wedlock of parents who, at the time of conception of the child,
were not disqualified by any impediment to marry each other
(Article 119, old Civil Code; Article 269, new Civil Code) and (2)
Spurious, whether incestuous, were disqualified to marry each
other on account of certain legal impediments. 21 Since
petitioner had a subsisting marriage to another at the time
Merceditas was conceived, 22 she is a spurious child. In this
regard, Article 287 of the Civil Code provides that illegitimate
children other than natural in accordance with Article 269 23 and
other than natural children by legal fiction are entitled to
support and such successional rights as are granted in the Civil
Code. The Civil Code has given these rights to them because
the transgressions of social conventions committed by the
parents should not be visited upon them. They were born with
a social handicap and the law should help them to surmount
the disadvantages facing them through the misdeeds of their
parents. 24 However, before Article 287 can be availed of, there
must first be a recognition of paternity 25 either voluntarily or by
court action. This arises from the legal principle that an
unrecognized spurious child like a natural child has no rights
from his parents or to their estate because his rights spring not
from the filiation or blood relationship but from his

acknowledgment by the parent. In other words, the rights of an

illegitimate child arose not because he was the true or real
child of his parents but because under the law, he had been
recognized or acknowledged as such a child. 26 The relevant
law on the matter is Article 283 of the Civil Code, which
provides:
Art. 283. In any of the following cases, the father is obliged to
recognize the child as his natural child:
(1) In cases of rape, abduction or seduction, when the period of
the offense coincides more or less with that of the conception;
(2) When the child is in continuos possession of status of a
child of the alleged father by the direct acts of the latter or of
his family;
(3) When the child was conceived during the time when the
mother cohabited with the supposed father;
(4) When the child has in his favor any evidence or proof that
the defendant is his father.
While the aforementioned provision speaks of the obligation of
the father to recognize the child as his natural child, for the
purpose of the present case, petitioner is obliged to recognize
Merceditas as his spurious child. This provision should be read
in conjunction with Article 289 of the Civil Code which provides:
Art. 289. Investigation of the paternity or maternity of (other
illegitimate) children . . . under the circumstances specified in
articles 283 and 284.
In reversing the decision of the trial court, respondent court
found, as it is likewise our finding, that private respondent's
evidence to establish her filiation with and the paternity of
petitioner is too overwhelming to be ignored or brushed aside
by the highly improbable and fatally flawed testimony of
Melencio and the inherently weak denials of petitioner:
Significantly, the Court a quo believed that plaintiff's mother
and defendant carried an intimate relations. It nonetheless was
not satisfied that defendant is the father of the plaintiff because
it is not convinced that her mother and defendant were in
cohabitation during the period of her conception, and took into
account the testimony of Melencio S. Reyes who frequented
the apartment where Leoncia de los Santos was living and who
positively testified that he took care of all the bills and that he
shared the same bed with plaintiffs mother.
The court a quo completely ignored the fact that the apartment
at Guagua was rented by the defendant, and that Melencio
Reyes, who was a mere employee and godson of the
defendant with a monthly salary of P560.00 was a mere
subaltern of the latter, and only frequented the place upon
instruction of the defendant to take care of the needs of the
plaintiff.
As pointed out by appellant, Leoncia and Artemio stayed in an
apartment at the back of the Guagua Telephone System owned
by and of which Artemio was the General Manager (TSN, p.
46, 8/18/73) and Melencio was the Officer-in-Charge in the

absence of Artemio whose residence and main office was in

Cavite. There, for the first time, Leoncia met Melencio (TSN,
pp. 3-4, 1/25/74). The apartment in Guagua was rented in the
name of Melencio. As Leoncia does not speak the Pampango
dialect (TSN, p. 50, 8/18/73), Artemio gave Leoncia the
instruction to call upon Melencio for whatever Leoncia needs
(TSN, pp. 11-12, 1/25/74). Thus, it was Melencio who procured
all the supplies and services needed in the apartment for which
procurement Melencio gives to Leoncia the corresponding
receipts of payment for liquidation of cash advances Artemio or
the Guagua Telephone System or Leoncia herself, gives to
Melencio (Exhs. A, A-1 to 14; TSN, p. 32, 8/13/73; TSN, pp. 7,
12 and 14, 1/25/74).
At the Guagua apartment, Artemio would visit Leoncia three of
four times a week and sleeps there (TSN, p. 47, 8/13/73).
Artemio was giving Leoncia an allowance of P700.00 a month
(TSN, p. 38, 7/18/73).
Leoncia got pregnant and Artemio found it difficult to commute
between Cavite and Guagua so that in June 1962, Artemio
transferred Leoncia to Calle San Juan, Pasay City (TSN, pp.
19-20, 7/18/73) where they were known as husband and wife
(id. p. 41). In leaving Guagua for San Juan, Pasay City,
Leoncia was fetched by Artemio in a car driven by Artemio
himself. (pp. 9-11, Appellant's Brief)
Even as Artemio and Leoncia lived and transferred to several
places heretofore mentioned, Melencio continued to be a
trusted man Friday of Artemio who would deliver notes (Exhs.
"F", "F-1" and "F-3") and money from Artemio to Leoncia. For
reference, among the notes identified by Leoncia as having
come from defendant were the following:
Exh. "F-1"
"Dear Ne,
Magsimula akong makausap ni Gracing ay nagkaroon ako ng
diferencia sa paa at ngayon ay masakit pa.
Si Miling ay ngayon lamang nakarating dito kung hindi ka aalis
diyan ay si Miling na lamang ang utusan mo sa Makati kung
may kailangan ka dian.
Sgn."
"Mayroon akong nakitang bahay na mayayari malapit sa
municipio ng Makati. Ipakikita ko sa iyo kung papayag ka.
Sabihin mo kay Miling kung hindi ka aalis diyan bukas ay
pupunta ako.
Walang makitang bahay sa San Juan.
Sgn."
Exh. "F-2"
"Ne, sa Viernes ay pupunta ako dian marami akong ginagawa.
Sgn."

Exh. "F-3"
"Ne, si Miling ay bukas pupunta dito ay sa tanghali ay pupunta
ako diyan (11:30 am). Wala akong pera ngayon kaya bukas na,
sigurado yon.
Sgn."
Exh. "F-4"
"Dear Ne, Pacencia ka na at hindi ako nakapaglalakad gawa
ng mataas ang dugo, kaya minsan-minsan lamang ako
makapunta sa oficena.
Ibigay mo ang bayad sa bahay sa Sabado ng umaga, pipilitin
kong makarating dian sa Jueves.
Sgn."
The address "Ne" in the beginning of these notes refer to
Leoncia whose nickname is "Nene" but which Artemio shortens
to "Ne". Miling is the nickname of Melencio. The "Gracing"
mentioned in Exh. "F-1" refers to Gracia delos Santos, a sisterin-law of Leoncia who was with Artemio when Leoncia was
removed from the hospital during the birth of Merceditas. (pp.
17-19, Appellant's Brief). These tiny bits of evidence when
pieced together ineluctably gives lie to defendants' diversionary
defense that it was with Melencio S. Reyes with whom the
mother lived with during her period of conception.
The attempt of Melencio S. Reyes to show that he was the
lover of Leoncia being in the apartment and sharing the same
bedroom and the same bed hardly inspires belief.
xxx xxx xxx
Undoubtedly, the role played by Melencio S. Reyes in the
relationship between Leoncia and appellant (sic) was that of a
man Friday although appellant (sic) would not trust him to the
hilt and unwittingly required him to submit to Leoncia an
accounting
of
his
expenditures
(Exhs. A, A-1 to A-14) for cash advances given to him by
Leoncia, Artemio or Guagua Telephone System which would
not have been the case, if it were true that there was an
intimate relationship between him and plaintiff's mother.
Evidently, following the instruction of his employer and
Godfather, Melencio foisted on the court a quo the impression
that he was the lover and paramour of Leoncia but since there
was really no such relationship, he could not state the place in
San Juan or Highway 54 where he took Leoncia, nor how long
they stayed there belying his pretense (sic) of an intimate
relationship with plaintiffs mother. 27
Having discredited the testimonies of petitioner and Melencio,
respondent court then applied paragraph (2) of Article 283:
The court a quo did not likewise consider the evidences as
sufficient to establish that plaintiff was in continuous
possession of status of a child in view of the denial by appellee
of his paternity, and there is no clear and sufficient evidence
that the support was really given to plaintiff's mother. The

belated denial of paternity after the action has been filed

against the putative father is not the denial that would destroy
the paternity of the child which had already been recognized by
defendant by various positive acts clearly evidencing that he is
plaintiff's father. A recognition once validly made is irrevocable.
It cannot be withdrawn. A mere change of mind would be
incompatible with the stability of the civil status of person, the
permanence of which affects public interest. Even when the act
in which it is made should be revocable, the revocation of such
act will not revoke the recognition itself (1 Tolentino, pp. 579580, 1983 Ed.).
To be sure, to establish "the open and continuous possession
of the status of an illegitimate child," it is necessary to comply
with certain jurisprudential requirements. "Continuous" does
not, however, mean that the concession of status shall
continue forever but only that it shall not be of an intermittent
character while it continues (De Jesus v. Syquia, 58 Phil. 866).
The possession of such status means that the father has
treated the child as his own, directly and not through other,
spontaneously and without concealment though without
publicity (since the relation is illegitimate) (J.B.L. Reyes and
R.C. Puno, Outline of Philippine Civil Law, Vol. 1, 1964 ed., pp.
269-270 citing Coquia vs. Coquia, CA 50, O.G. 3701) There
must be a showing of the permanent intention of the supposed
father to consider the child as his own, by continuous and clear
manifestation of paternal affection and care. (Tolentino, Civil
Code of the Philippines, Vol. 1, 1983 ed., p. 602). (Mendoza vs.
Court of Appeals, G.R. No. 86302, September 24, 1991.)
It was Artemio who made arrangement for the delivery of
Merceditas (sic) at the Manila Sanitarium and Hospital. Prior to
the delivery, Leoncia underwent prenatal examination by
Artemio (TSN, p. 33, 5/17/74). After delivery, they went home
to their residence at EDSA in a car owned and driven by
Artemio himself (id. p. 36).
Merceditas (sic) bore the surname of "Ilano" since birth without
any objection on the part of Artemio, the fact that since
Merceditas (sic) had her discernment she had always known
and called Artemio as her "Daddy" (TSN, pp. 28-29, 10/18/74);
the fact that each time Artemio was at home, he would play
with Merceditas (sic), take her for a ride or restaurants to eat,
and sometimes sleeping with Merceditas (sic) (id. p. 34) and
does all what a father should do for his child bringing home
goodies, candies, toys and whatever he can bring her which a
child enjoys which Artemio gives Merceditas (sic) (TSN, pp. 3839, 5/17/74) are positive evidence that Merceditas (sic) is the
child of Artemio and recognized by Artemio as such. Special
attention is called to Exh. "E-7" where Artemio was telling
Leoncia the need for a "frog test" to know the status of
Leoncia.
Plaintiff pointed out that the support by Artemio for Leoncia and
Merceditas (sic) was sometimes in the form of cash personally
delivered to her by Artemio, thru Melencio, thru Elynia (Exhs.
"E-2"
and
"E-3",
and "D-6"), or thru Merceditas (sic) herself (TSN, p. 40,
5/17/74) and sometimes in the form of a check as the Manila
Banking Corporation Check No. 81532 (Exh. "G") and the
signature appearing therein which was identified by Leoncia as

that of Artemio because Artemio often gives her checks and

Artemio would write the check at home and saw Artemio sign
the check (TSN, p. 49, 7/18/73). Both Artemio and Nilda
admitted that the check and signature were those of Artemio
(TSN,
p.
53,
10/17/77;
TSN, p. 19, 10/9/78).

Notably, the court a quo did not consider plaintiff's evidence as

lacking in credibility but did not deem as convincing proof that
defendant is the father since the Certificate of Live Birth was
not signed by appellee and since the monthly report card is not
sufficient to establish recognition, considering the denial of the
defendant of his signature appearing thereon.

During the time that Artemio and Leoncia were living as

husband and wife, Artemio has shown concern as the father of
Merceditas (sic). When Merceditas (sic) was in Grade 1 at the
St. Joseph Parochial School, Artemio signed the Report Card
of Merceditas (sic) (Exh. "H") for the fourth and fifth grading
period(s) (Exh. "H-1" and "H-2") as the parent of Merceditas
(sic). Those signatures of Artemio were both identified by
Leoncia and Merceditas (sic) because Artemio signed Exh. "H1"
and
"H-2" at their residence in the presence of Leoncia, Merceditas
(sic) and of Elynia (TSN, p. 57, 7/18/73; TSN, p. 28,
10/1/73). . . .

While defendant's signature does not appear in the Certificate

of Live Birth, the evidence indubitably disclose(s) that Leoncia
gave birth on December 30, 1963 to Merceditas (sic) at 4:27
p.m. at the Manila Sanitarium. Artemio arrived at about 5:00
(TSN, p. 25, 5/17/74). At about 7:00 p.m., a nurse came (id. p.
26) who made inquiries about the biodata of the born child. The
inquiries were directed to Artemio in the presence of Elynia
who heard the answers of Artemio which the nurse took down
in a sheet of paper (id. p. 28). The inquiries were about the
name of the father, mother and child. After the interview the
nurse told them that the information has to be recorded in the
formal form and has to be signed by Artemio (id. p. 30) but
because there is no office, as it was past 7:00 p.m., the nurse
would just return in the morning for Artemio's signature.
Artemio gave the instruction to the nurse to give the biodata to
Leoncia for her signature as he was leaving very early the
following morning as in fact Artemio left at 5:00 a.m. of
December 31, 1963 (id. p. 33). Artemio stayed in the hospital in
the evening of December 30, 1963 (id. p. 26). As pointed out in
Castro vs. Court of Appeals, 173 SCRA 656:

xxx xxx xxx

When Artemio run as a candidate in the Provincial Board of
Cavite, Artemio gave Leoncia his picture with the following
dedication: "To Nene, with best regards, Temiong". (Exh. "I").
(pp. 19-20, Appellant's Brief)
The mere denial by defendant of his signature is not sufficient
to offset the totality of the evidence indubitably showing that
the signature thereon belongs to him. The entry in the
Certificate of Live Birth that Leoncia and Artemio was falsely
stated therein as married does not mean that Leoncia is not
appellee's daughter. This particular entry was caused to be
made by Artemio himself in order to avoid embarrassment.
It is difficult to believe that plaintiffs mother, who is a mere
dressmaker, had long beforehand diabolically conceived of a
plan to make it appear that defendant, who claims to be a total
stranger to be a total stranger, was the father of her child, and
in the process falsified the latter's signatures and handwriting.
28

Granting ex gratia argument that private respondent's evidence

is not sufficient proof of continuos possession of status of a
spurious child, respondent court applied next paragraph (4) of
Article 283:
. . . plaintiffs testimonial and documentary evidence . . . (is) too
replete with details that are coherent, logical and natural which
cannot be categorized as mere fabrications of an inventive and
malicious mind of which Leoncia de los Santos was not shown
to possess.
The natural, logical and coherent evidence of plaintiff from the
genesis of the relationship between Leoncia and appellee, their
living together as circumstances of plaintiff's birth, the acts of
appellee in recognizing and supporting plaintiff, find ample
support from the testimonial and documentary evidence which
leaves no room to reasonably doubt his paternity which may
not be infirmed by his belated denials.

The ruling in Roces vs. Local Civil Registrar of Manila (102

Phil. 1050 [1958] and Berciles v. Government Service
Insurance System (128 SCRA 53 [1984] that if the father did
not sign in the birth certificate, the placing of his name by the
mother, doctor, register, or other person is incompetent
evidence of paternity does not apply to this case because it
was Eustaquio himself who went to the municipal building and
gave all the data about his daughter's birth. . . .
. . . the totality of the evidence, as pointed to above, is more
than sufficient to establish beyond reasonable doubt that
appellee is the father of the plaintiff Merceditas (sic) Ilano.
As elucidated in Mendoza vs. Court of Appeals, Supra:
xxx xxx xxx
. . . although Teopista has failed to show that she was in open
and continuous possession of the status of an illegitimate child
of Casimiro, we find that she has nevertheless established that
status by another method.
What both the trial court and the respondent did not take into
account is that an illegitimate child is allowed to establish his
claimed affiliation by "any other means allowed by the Rules of
Court and special laws," according to the Civil Code, . . . Such
evidence may consist of his baptismal certificate, a judicial
admission, a family Bible in which his name has been entered,
common reputation respecting his pedigree, admission by
silence, the testimonies of witnesses, and other kinds of proof
admissible under Rule 130 of the Rules of Court. 29

The last paragraph of Article 283 contains a blanket provision

that practically covers all the other cases in the preceding
paragraphs. "Any other evidence or proof" that the defendant is
the father is broad enough to render unnecessary the other
paragraphs of this article. When the evidence submitted in the
action for compulsory recognition is not sufficient to meet
requirements of the first three paragraphs, it may still be
enough under the last paragraph. 30 This paragraph permits
hearsay and reputation evidence, as provided in the Rules of
Court, with respect to illegitimate filiation. 31
As a necessary consequence of the finding that private
respondent is the spurious child of petitioner, she is entitled to
support. In awarding support to her, respondent court took into
account the following:
The obligation to give support shall be demandable from the
time the person who has a right to recover the same needs it
for maintenance, but it shall not be paid except from the date of
judicial or extrajudicial demand. (Article 203, Family Code of
the Philippines.)
The complaint in this case was filed on August 14, 1972.
Plaintiff, having been born on December 30, 1963, was about
nine (9) years old at the time and was already of school age
spending about P400.00 to P500.00 a month for her school
expenses alone, while defendant was earning about
P10,000.00 a month. She attained the age of majority on
December 30, 1984 (Article 234, Supra). She is therefore
entitled to support in arrears for a period of twelve (12) years,
four (4) months and fourteen (14) days, which is hereby fixed
at P800.00 a month for the first three (3) years; and
considering the declining value of the peso as well as her
needs as she grows older, at a graduated increase of
P1,000.00 a month for the next three (3) years; P1,300.00 a
month for the succeeding three (3) years; and P1,500.00 a
month for the last three (3) years, four (4) months and fourteen
(14) days until she attained the age of majority.
This being an action for legal support, the award of attorney's
fees is appropriate under Article 2208 (6) of the Civil Code.
Moreover, the court deems it just and equitable under the given
facts and circumstances that attorney's fees and expenses of
litigation should be recovered. 32
We concur with the foregoing disposition, in the absence of
proof that it was arrived at arbitrarily.
The other allegation of petitioner that the appeal was
prosecuted almost ten years after the decision of the trial court
was rendered does not deserve any consideration because it
appears that it is being raised for the first time in this petition. 33
WHEREFORE, the petition is hereby DENIED. The decision of
the Court of Appeals dated December 17, 1991 and its
resolution dated February 26, 1992 are AFFIRMED.
SO ORDERED.

G.R. No. 95229 June 9, 1992

CORITO
OCAMPO
TAYAG,
vs.
HON. COURT OF APPEALS and
CUYUGAN, respondent.

petitioner,
EMILIE

DAYRIT

REGALADO, J.:
The instant petition seeks to reverse and set aside the decision
1
of respondent Court of Appeals in CA-G.R. SP No. 20222,
entitled "Corito Ocampo Tayag vs. Hon. Norberto C. Ponce,
Judge, Regional Trial Court of San Fernando, Pampanga and
Emilde 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:
xxx xxx xxx
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 bad 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
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
support pendente 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 as
barred by prescription; that respondent Cuyugan has no legal
and judicial personality to bring the suit; that the lower court
was 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 as set for pretrial . . . 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:
The question whether a person in the position of the present
plaintiff can 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 seers 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 co-heirs . . .; 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.
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.
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 bas 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 effective, 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 mind 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.
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.

Republic
SUPREME
Manila

of

the

Philippines
COURT

SECOND DIVISION

G.R. No. 108366 February 16, 1994

JOHN PAUL E. FERNANDEZ, ET AL., petitioners,
vs.
THE COURT OF APPEALS and CARLITO S. FERNANDEZ,
respondents.
Erlinda B. Espejo for petitioners.
C.B. Carbon & Associates for private respondent.

PUNO, J.:
The legal dispute between the parties began when the
petitioners filed Civil Case No. Q-45567 for support against the
private respondent before the RTC of Quezon City. The
complaint was dismissed on December 9, 1986 by Judge
Antonio P. Solano, 1 who found that "(t)here is nothing in the
material allegations in the complaint that seeks to compel
(private respondent) to recognize or acknowledge (petitioners)
as his illegitimate children," and that there was no sufficient
and competent evidence to prove the petitioners filiation. 2
Petitioners plodded on. On February 19, 1987, they file the
case at bench, another action for recognition and support
against the private respondent before another branch of the
RTC of Quezon City, Branch 87. The case was docketed as
Civil Case No. Q-50111.
The evidence shows that VIOLETA P. ESGUERRA, single, is
the mother and guardian ad litem of the two petitioners,
CLARO ANTONIO FERNANDEZ and JOHN PAUL
FERNANDEZ, met sometime in 1983, at the Meralco
Compound tennis courts. A Meralco employee and a tennis

enthusiast, Carlito used to spend his week-ends regularly at

said courts, where Violeta's father served as tennis instructor.
Violeta pointed to Carlito as the father of her two sons. She
claimed that they started their illicit sexual relationship six (6)
months after their first meeting. The tryst resulted in the birth of
petitioner Claro Antonio on March 1, 1984, and of petitioner
John Paul on not know that Carlito was married until the birth
of her two children. She averred they were married in civil rites
in October, 1983. In March, 1985, however, she discovered
that the marriage license which they used was spurious.
To bolster their case, petitioners presented the following
documentary evidence: their certificates of live birth, identifying
respondent Carlito as their father; the baptismal certificate of
petitioner Claro which also states that his father is respondent
Carlito; photographs of Carlito taken during the baptism of
petitioner Claro; and pictures of respondent Carlito and Claro
taken at the home of Violeta Esguerra.
Petitioners likewise presented as witnesses, Rosario Cantoria,
3
Dr. Milagros Villanueva, 4 Ruby Chua Cu, 5 and Fr. Liberato
Fernandez. 6 The first three witnesses told the trial court that
Violeta Esguerra had, at different times, 7 introduced the private
respondent to them as her "husband". Fr. Fernandez, on the
other hand, testified that Carlito was the one who presented
himself as the father of petitioner Claro during the latter's
baptism.
In defense, respondent Carlito denied Violeta's allegations that
he sired the two petitioners. He averred he only served as one
of the sponsors in the baptism of petitioner Claro. This claim
was corroborated by the testimony of Rodante Pagtakhan, an
officemate of respondent Carlito who also stood as a sponsor
of petitioner Claro during his baptism. The Private respondent
also presented as witness, Fidel Arcagua, a waiter of the
Lighthouse Restaurant. He disputed Violeta's allegation that
she and respondent Carlito frequented the said restaurant
during their affair. Arcagua stated he never saw Violeta
Esguerra and respondent Carlito together at the said
restaurant. Private respondent also declared he only learned
he was named in the birth certificates of both petitioners as
their father after he was sued for support in Civil Case No.
Q-45567.
Based on the evidence adduced by the parties, the trial court
ruled in favor of petitioners, viz.:
In view of the above, the Court concludes and so holds that the
plaintiffs minors (petitioners herein) are entitled to the relief's
prayed for in the complaint. The defendant (herein private
respondent) is hereby ordered to recognize Claro Antonio
Carlito Fernandez, now aged 6, and John Paul Fernandez,
now aged 41/2 as his sons. As the defendant has admitted that
he has a supervisory job at the Meralco, he shall give the
plaintiffs support in the amount of P2,000 each a month,
payment to be delivered to Violeta Esguerra, the children's
mother and natural guardian, with arrears reckoned as of the
filing of the complaint on February 19, 1987.
SO ORDERED.

On appeal, the decision was set aside and petitioners

complaint dismissed by the respondent Court of Appeals 8 in its
impugned decision, dated October 20, 1992. It found that the
"proof relied upon by the (trial) court (is) inadequate to prove
the (private respondent's) paternity and filiation of
(petitioners)." It further held that the doctrine of res judicata
applied because of the dismissal of the petitioners complaint in
Civil Case No. Q-45567. Petitioners' motion for reconsideration
was denied on December 22, 1992.
Petitioners now contend that the respondent appellate court
erred in: (1) not giving full faith and credit to the testimony in of
Violeta Esguerra; (2) not giving weight and value to the
testimony of Father Liberato Fernandez; (3) not giving
probative value to the numerous pictures of respondent Carlito
Fernandez taken during the baptismal ceremony and inside the
bedroom of Violeta Esguerra; (4) not giving probative value to
the birth certificates of petitioners; (5) giving so much credence
to the self-serving and incredible testimony of respondent
Carlito Fernandez; and (6) holding that the principle of res
judicata is applicable in the case at bar.
We find no merit in the petition.
The rule is well-settled that findings of facts of the Court of
Appeals may be reviewed by this court only under exceptional
circumstances. One such situation is when the findings of the
appellate court clash with those of the trial court as in the case
at bench. It behooves us therefore to exercise our
extraordinary power, and settle the issue of whether the ruling
of the appellate court that private respondent is not the father
of the petitioners is substantiated by the evidence on record.
We shall first examine the documentary evidence offered by
the petitioners which the respondent court rejected as
insufficient to prove their filiation. Firstly, we hold that
petitioners cannot rely on the photographs showing the
presence of the private respondent in the baptism of petitioner
Claro (Exh. "B-8", Exh. "B-12", Exh. "H" and Exh. "I"). These
photographs are far from proofs that private respondent is the
father of petitioner Claro. As explained by the private
respondent, he was in the baptism as one of the sponsors of
petitioner Claro. His testimony was corroborated by Rodante
Pagtakhan.
Secondly, the pictures taken in the house of Violeta showing
private respondent showering affection to Claro fall short of the
evidence required to prove paternity (Exhibits "B", "B-1", "B-2",
"B-7", "B-14" and "B-15"). As we held in Tan vs. Trocio, 192
SCRA 764, viz:
. . . The testimonies of complainant and witness Marilou
Pangandaman, another maid, to show unusual closeness
between Respondent and Jewel, like playing with him and
giving him paternity. The same must be said of . . . (the)
pictures of Jewels and Respondent showing allegedly their
physical likeness to each other. Said evidence is inconclusive
to prove paternity and much less would prove violation of
complaint's person and honor. (Emphasis supplied)

Thirdly, the baptismal certificates (Exh. "D") of petitioner Claro

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

Q Do you recall Father, whether on that occasion when you

called for the father and the mother of the child, that both father
and mother were present?

As to the baptismal certificates, Exh. "7-A", the rule is that

although the baptismal record of a natural child describes her
as a child of the record the decedent had no intervening, the
baptismal record cannot be held to be a voluntary recognition
of parentage. . . . The reason for this rule that canonical
records do not constitute the authentic document prescribed by
Arts. 115 and 117 to prove the legitimate filiation of a child is
that such canonical record is simply proof of the only act to
which the priest may certify by reason of his personal
knowledge, an act done by himself or in his presence, like the
administration of the sacrament upon a day stated; it is no
proof of the declarations in the record with respect to the
parentage of the child baptized, or of prior and distinct facts
which require separate and concrete evidence.

Q Would you able to recognized the father and the mother who
were present at that time?

In Macandang vs. Court of Appeals, 100 SCRA 73 (1980), we

also ruled that while baptismal certificates may be considered
public documents, they can only serve as evidence of the
administration of the sacraments on the dates so specified.
They are not necessarily competent evidence of the veracity of
entries therein with respect to the child's paternity.

A Yes, I do.

Fourth, the certificates of live birth (Exh. "A"; Exh. "B") of the
petitioners identifying private respondent as their father are not
also competent evidence on the issue of their paternity. Again,
the records do no show that private respondent had a hand in
the preparation of said certificates. In rejecting these
certificates, the ruling of the respondent court is in accord with
our pronouncement in Roces vs. Local Civil Registrar, 102 Phil.
1050 (1958), viz:
. . . Section 5 of Act No. 3793 and Article 280 of the Civil Code
of the Philippines explicity prohibited, not only the naming of
the father or the child born outside wedlock, when the birth
certificates, or the recognition, is not filed or made by him, but,
also, the statement of any information or circumstances by
which he could be identified. Accordingly, the Local Civil
Registrar had no authority to make or record the paternity of an
illegitimate child upon the information of a third person and the
certificate of birth of an illegitimate child, when signed only by
the mother of the latter, is incompetent evidence of fathership
of said child. (Emphasis supplied)
We reiterated this rule in Berciles, op. cit., when we held that "a
birth certificate no signed by the alleged father therein
indicated is not competent evidence of paternity."
We have also reviewed the relevant testimonies of the
witnesses for the petitioners and we are satisfied that the
respondent appellate court properly calibrated their weight.
Petitioners capitalize on the testimony of Father Liberato
Fernandez who solemnized the baptismal ceremony of
petitioner Claro. He declared on the witness stand:

A Yes.

A Yes.
Q Please point to the court?
A There (witness pointing to the defendant, Carlito Fernandez).
Q For instance, just give us more specifically what question do
you remember having asked him?
A Yes, like for example, do you renounce Satan and his works?
Q What was the answer of Fernandez?

Q I just want to be sure, Father, will you please look at the

defendant again. I want to be sure if he is the person who
appeared before you on that occasion?
A I am sure.
(TSN, May 23, 1986, pp. 14-16)
However, on cross examination, Father Fernandez admitted
that he has to be shown a picture of the private respondent by
Violeta Esguerra to recognize the private respondent, viz:
Q When was the, approximately, when you were first shown
this picture by Violeta Esguerra?
A I cannot recall.
Q At least the month and the year?
A It must be in 1986.
Q What month in 1986.
A It is difficult. . .
Q When was the first time you know you are going to testify
here?
A Let us see, you came there two times and first one was you
want to get a baptismal certificate and then the second time
was I asked you for what is this? And you said it is for the
court.
Q On the second time that Ms. Violeta Esguerra went to your
place, you were already informed that you will testify here
before this Honorable Court?
A Yes.

Q And you were informed by this Ms. Violeta Esguerra that this
man wearing the blue T-shirt is the father?
A Yes, sir.
Q So, it was Violeta Esguerra who. . .
A Yes.
(TSN, May 23, 1986, pp. 18 to 22)
Indeed, there is no proof that Father Fernandez is a close
friend of Violeta Esguerra and the private respondent which
should render unquestionable his identification of the private
respondent during petitioner Claro's baptism. In the absence of
this proof, we are not prepared to concede that Father
Fernandez who officiates numerous baptismal ceremonies day
in and day out can remember the parents of the children he
has baptized.
We cannot also disturb the findings of the respondent court on
the credibility of Violeta Esguerra. Her testimony is highly
suspect as it is self-serving and by itself, is insufficient to prove
the paternity of the petitioners.
We shall not pass upon the correctness of the ruling of the
respondent appellate court applying the doctrine of res judicata
as additional reason in dismissing petitioners action for
recognition and support. It is unnecessary considering our
findings that petitioners evidence failed to substantiate their
cause of action.
IN VIEW WHEREOF, the petition is DISMISSED and the
Decision of the respondent court in CA-G.R. CV No. 29182 is
AFFIRMED. Costs against petitioners.
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.:
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 P 500 per month.
This controversy stemmed from a petition for recognition and
support filed by Florencia Regodos in behalf of her minor son,
private respondent Camelo Regodos.
During the trial, Florencia testified that she was the mother of
private respondent who was born on September 9, 1982 and
that she was the one supporting the child. She recounted that
after her husband left her in the early part of 1981, she went to
Escalante, Negros Occidental to look for work and was
eventually hired as petitioners household help. It was while
working there as a maid that, on January 2, 1982, petitioner
brought her to Bacolod City where they checked in at the
Visayan Motel and had sexual intercourse. Petitioner promised
to support her if she got pregnant.
Florencia claimed she discovered she was carrying petitioners
child 27 days after their sexual encounter. The sexual
intercourse was repeated in March 1982 in San Carlos City.
Later, on suspicion that Florencia was pregnant, petitioners
wife sent her home. But petitioner instead brought her to
Singcang, Bacolod City where he rented a house for her. On
September 9, 1982, assisted by a hilot in her aunts house in
Tiglawigan, Cadiz City, she gave birth to her child, private
respondent Camelo Regodos.

Petitioner Camelo Cabatanias version was different. He

testified that he was a sugar planter and a businessman.
Sometime in December, 1981, he hired Florencia as a servant
at home. During the course of her employment, she would
often go home to her husband in the afternoon and return to
work the following morning. This displeased petitioners wife,
hence she was told to look for another job.
In the meantime, Florencia asked permission from petitioner to
go home and spend New Years Eve in Cadiz City. Petitioner
met her on board the Ceres bus bound for San Carlos City and
invited her to dinner. While they were eating, she confided that
she was hard up and petitioner offered to lend her save money.
Later, they spent the night in San Carlos City and had sexual
intercourse. While doing it, he felt something jerking and when
he asked her about it, she told him she was pregnant with the
child of her husband. They went home the following day.
In March 1982, Florencia, then already working in another
household, went to petitioners house hoping to be re-employed
as a servant there. Since petitioners wife was in need of one,
she was re-hired. However petitioners wife noticed that her
stomach was bulging and inquired about the father of the
unborn child. She told petitioners wife that the baby was by her
husband. Because of her condition, she was again told to go
home and they did not see each other anymore.
Petitioner was therefore surprised when summons was served
on him by Florencias counsel. She was demanding support for
private respondent Camelo Regodos. Petitioner refused,
denying the alleged paternity. He insisted she was already
pregnant when they had sex. He denied going to Bacolod City
with her and checking in at the Visayan Motel. He vehemently
denied having sex with her on January 2, 1982 and renting a
house for her in Singcang, Bacolod City.
After trial, the court a quo gave more probative weight to the
testimony of Florencia despite its discovery that she
misrepresented herself as a widow when, in reality, her
husband was alive. Deciding in favor of private respondent, the
trial court declared:
The child was presented before the Court, and if the Court is to
decide this case, based on the personal appearance of the
child then there can never be a doubt that the plaintiff-minor is
the child of the defendant with plaintiff-minors 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 plaintiffs mother, Florencia Regodos, but denied
paternity to the child. The child was presented before the
Court, and if the Court is to decide this case, based on the
personal appearance of the child, then there can never be a
doubt that the plaintiff-minor is the child of the defendant with
plaintiff-minors mother, Florencia Regodos.[2]
On appeal, the Court of Appeals affirmed the RTC:

The misrepresentation made by Florencia in the petition that

she was a widow should not prejudice the right of petitionerappellee. As held by the Supreme Court, even where a witness
has been found to have deliberately falsified the truth in some
particulars, it is not required that the whole of her testimony be
rejected (People vs. Bohol, 170 SCRA 585). It is perfectly
reasonable to believe the testimony of a witness with respect to
some facts and disbelieve it with respect to other facts (People
vs. Delas, 199 SCRA 574, 575). There is therefore no reason
to disbelieve Florencia that her first intercourse with appellant
occurred on January 2, 1982 and nine (9) months later or on
September 9, 1982, she gave birth to appellee (TSN, Hearing
of June 10, 1991 and Exhibit A).
In the absence of arbitrariness in the evaluation of the
evidence adduced before the trial court and there being no
evidence that the latter had overlooked or misappreciated, we
find no cogent reason to disturb the trial courts findings.
WHEREFORE, the appealed decision is AFFIRMED.[3]
Hence this petition which assigns the following errors:
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 courts finding of a paternal relationship between
petitioner and private respondent was based on the testimony
of the childs mother and the personal appearance of the child.

Time and again, this Court has ruled that a high standard of
proof is required to establish paternity and filiation. [6] An order
for recognition and support may create an unwholesome
situation or may be an irritant to the family or the lives of the
parties so that it must be issued only if paternity or filiation is
established by clear and convincing evidence.[7]
The applicable provisions of the law are Articles 172 and 175 of
the Civil Code:
Art. 172. The filiation of legitimate children is established by
any of the following:
(1) The record of birth appearing in the civil register or a final
judgment; or
(2) An admission of legitimate filiation in a public document or a
private handwritten instrument and signed by the parent
concerned.
In the absence of the foregoing evidence, the legitimate filiation
shall be proved by:
(1) The open and continuous possession of the status of a
legitimate child; or
(2) Any other means allowed by the Rules of Court and special
laws.
Art. 175. Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence as
legitimate children.
xxx xxx xxx
Private respondent presented a copy of his birth and baptismal
certificates, the preparation of which was without the
knowledge or consent of petitioner. A certificate of live birth
purportedly identifying the putative father is not competent
evidence of paternity when there is no showing that the
putative father had a hand in the preparation of said certificate.
The local civil registrar has no authority to record the paternity
of an illegitimate child on the information of a third person.[8]
In the same vein, we have ruled that, while a baptismal
certificate may be considered a public document, it can only
serve as evidence of the administration of the sacrament on
the date specified but not the veracity of the entries with
respect to the childs paternity.[9] Thus, certificates issued by the
local civil registrar and baptismal certificates are per se
inadmissible in evidence as proof of filiation and they cannot be
admitted indirectly as circumstantial evidence to prove the
same.[10]
Aside from Florencias self-serving testimony that petitioner
rented a house for her in Singcang, Bacolod City, private
respondent failed to present sufficient proof of voluntary
recognition.
We now proceed to the credibility of Florencias testimony. Both
the trial court and the appellate court brushed aside the
misrepresentation of Florencia in the petition for recognition

that she was a widow. Both courts dismissed the lie as minor
which did not affect the rest of her testimony. We disagree. The
fact that Florencias husband is living and there is a valid
subsisting marriage between them gives rise to the
presumption that a child born within that marriage is legitimate
even though the mother may have declared against its
legitimacy or may have been sentenced as an adulteress. [11]
The presumption of legitimacy does not only flow out of a
declaration in the statute but is based on the broad principles
of natural justice and the supposed virtue of the mother. The
presumption is grounded on the policy to protect innocent
offspring from the odium of illegitimacy.[12]
In this age of genetic profiling and deoxyribonucleic acid (DNA)
analysis, the extremely subjective test of physical resemblance
or similarity of features will not suffice as evidence to prove
paternity and filiation before the courts of law.
WHEREFORE, the petition is hereby granted. The assailed
decision of the Court of Appeals in CA-G.R. 36708 dated
March 15, 1996, affirming the decision of the Regional Trial
Court of Cadiz City, Branch 60, in Spec. Proc. No. 88-C is
reversed and set aside. Private respondents petition for
recognition and support is dismissed.
SO ORDERED.

FIRST DIVISION
G.R. No. 180284, September 11, 2013
NARCISO SALAS, Petitioners, v.ANNABELLE MATUSALEM,
Respondent.
DECISION
VILLARAMA, JR., J.:

Before the Court is a petition for review on certiorari which

seeks to reverse and set aside the Decision 1 dated July 18,
2006 and Resolution2 dated October 19, 2007 of the Court of
Appeals
(CA)
in
CA-G.R.
CV
No.
64379.
The

factual

antecedents:

On May 26, 1995, Annabelle Matusalem (respondent) filed a

complaint for Support/Damages against Narciso Salas
(petitioner) in the Regional Trial Court (RTC) ofCabanatuan
City
(Civil
Case
No.
2124-AF).
Respondent claimed that petitioner is. the father of her son
Christian Paulo Salas who was born on December 28, 1994.
Petitioner, already 56 years old at the time, enticed her as she
was then only 24 years old, making her believe that he is a
widower. Petitioner rented an apartment where respondent
stayed and shouldered all expenses in the delivery of their
child, including the cost of caesarian operation and hospital
confinement. However, when respondent refused the offer of
petitioners family to take the child from her, petitioner
abandoned respondent and her child and left them to the
mercy of relatives and friends. Respondent further alleged that
she attempted suicide due to depression but still petitioner
refused
to
support
her
and
their
child.
Respondent thus prayed for support pendente lite and monthly
support in the amount of P20,000.00, as well as actual, moral
and
exemplary
damages,
and
attorneys
fees.
Petitioner filed his answer4 with special and affirmative
defenses and counterclaims. He described respondent as a
woman of loose morals, having borne her first child also out of

wedlock when she went to work in Italy. Jobless upon her

return to the country, respondent spent time riding on
petitioners jeepney which was then being utilized by a female
real estate agent named Felicisima de Guzman. Respondent
had seduced a senior police officer in San Isidro and her
charge of sexual abuse against said police officer was later
withdrawn in exchange for the quashing of drug charges
against respondents brother-in-law who was then detained at
the municipal jail. It was at that time respondent introduced
herself to petitioner whom she pleaded for charity as she was
pregnant with another child. Petitioner denied paternity of the
child Christian Paulo; he was motivated by no other reason
except genuine altruism when he agreed to shoulder the
expenses for the delivery of said child, unaware of
respondents chicanery and deceit designed to scandalize
him
in
exchange
for
financial
favor.

money to her. She and her baby survived through the help of
relatives and friends. Depressed, she tried to commit suicide
by drug overdose and was brought to the hospital by Murillo
who paid the bill. Murillo sought the help of the Cabanatuan
City Police Station which set their meeting with petitioner.
However, it was only petitioners wife who showed up and she
was very mad, uttering unsavory words against respondent. 6

At the trial, respondent and her witness Grace Murillo testified.

Petitioner was declared to have waived his right to present
evidence and the case was considered submitted for decision
based
on
respondents
evidence.

On April 5, 1999, the trial court rendered its decision8 in favor of

respondent,
the
dispositive
portion
of
which
reads:chanRoblesvirtualLawlibrary

Respondent testified that she first met petitioner at the house

of his kumadre Felicisima de Guzman at Bgy. Malapit, San
Isidro, Nueva Ecija. During their subsequent meeting, petitioner
told her he is already a widower and he has no more
companion in life because his children are all grown-up. She
also learned that petitioner owns a rice mill, a construction
business and a housing subdivision (petitioner offered her a job
at their family-owned Ma. Cristina Village). Petitioner at the
time already knows that she is a single mother as she had a
child by her former boyfriend in Italy. He then brought her to a
motel, promising that he will take care of her and marry her.
She believed him and yielded to his advances, with the thought
that she and her child will have a better life. Thereafter, they
saw each other weekly and petitioner gave her money for her
child. When she became pregnant with petitioners child, it was
only then she learned that he is in fact not a widower. She
wanted to abort the baby but petitioner opposed it because he
wanted
to
have
another
child.5
On the fourth month of her pregnancy, petitioner rented an
apartment where she stayed with a housemaid; he also
provided for all their expenses. She gave birth to their child on
December 28, 1994 at the Good Samaritan Hospital in
Cabanatuan City. Before delivery, petitioner even walked her at
the hospital room and massaged her stomach, saying he had
not done this to his wife. She filled out the form for the childs
birth certificate and wrote all the information supplied by
petitioner himself. It was also petitioner who paid the hospital
bills and drove her baby home. He was excited and happy to
have a son at his advanced age who is his look-alike, and this
was witnessed by other boarders, visitors and Grace Murillo,
the owner of the apartment unit petitioner rented. However, on
the 18th day after the babys birth, petitioner went to Baguio
City for a medical check-up. He confessed to her daughter and
eventually his wife was also informed about his having sired an
illegitimate child. His family then decided to adopt the baby and
just give respondent money so she can go abroad. When she
refused this offer, petitioner stopped seeing her and sending

Murillo corroborated respondents testimony as to the payment

by petitioner of apartment rental, his weekly visits to
respondent and financial support to her, his presence during
and after delivery of respondents baby, respondents
attempted suicide through sleeping pills overdose and
hospitalization for which she paid the bill, her complaint before
the police authorities and meeting with petitioners wife at the
headquarters.7

WHEREFORE, premises considered, judgment is hereby

rendered in favor of the plaintiff and against the defendant as
follows:
1.

Ordering the defendant to give as monthly support of

TWO THOUSAND (P2,000.00) PESOS for the child
Christian Paulo through the mother;

2.

Directing the defendant to pay the plaintiff the sum of

P20,000.00 by way of litigation expenses; and

3.

To pay the costs of suit.

SO ORDERED.9

Petitioner appealed to the CA arguing that: (1) the trial court

decided the case without affording him the right to introduce
evidence on his defense; and (2) the trial court erred in finding
that petitioner is the putative father of Christian Paulo and
ordering
him
to
give
monthly
support.
By Decision dated July 18, 2006, the CA dismissed petitioners
appeal. The appellate court found no reason to disturb the trial
courts exercise of discretion in denying petitioners motion for
postponement on April 17, 1998, the scheduled hearing for the
initial presentation of defendants evidence, and the motion for
reconsideration of the said order denying the motion for
postponement and submitting the case for decision.
On the paternity issue, the CA affirmed the trial courts ruling
that respondent satisfactorily established the illegitimate
filiation of her son Christian Paulo, and consequently no error
was committed by the trial court in granting respondents
prayer
for
support.
The
appellate
court
thus
held:chanRoblesvirtualLawlibrary
Christian Paulo, in instant case, does not enjoy the benefit of a
record of birth in the civil registry which bears acknowledgment
signed by Narciso Salas. He cannot claim open and continuous

possession

of

the

status

of

an

illegitimate

child.

It had been established by plaintiffs evidence, however, that

during her pregnancy, Annabelle was provided by Narciso
Salas with an apartment at a rental of P1,500.00 which he paid
for (TSN, October 6, 1995, p. 18). Narciso provided her with a
household help with a salary of P1,500.00 a month (TSN,
October 6, 1995, ibid). He also provided her a monthly food
allowance of P1,500.00 (Ibid, p. 18). Narciso was with
Annabelle at the hospital while the latter was in labor, walking
her around and massaging her belly (Ibid, p. 11). Narciso
brought home Christian Paulo to the rented apartment after
Annabelles discharge from the hospital. People living in the
same apartment units were witnesses to Narcisos delight to
father a son at his age which was his look alike. It was only
after the 18th day when Annabelle refused to give him Christian
Paulo that Narciso withdrew his support to him and his mother.
Said testimony of Annabelle aside from having been
corroborated by Grace Murillo, the owner of the apartment
which Narciso rented, was never rebutted on record. Narciso
did not present any evidence, verbal or documentary, to
repudiate
plaintiffs
evidence.
In the cases of Lim vs. CA (270 SCRA 1) and Rodriguez vs.
CA (245 SCRA 150), the Supreme Court made it clear that
Article 172 of the Family Code is an adaptation of Article 283 of
the Civil Code. Said legal provision provides that the father is
obliged to recognize the child as his natural child x x 3) when
the child has in his favor any evidence or proof that the
defendant
is
his
father.
In fact, in Ilano vs. CA (230 SCRA 242, 258-259), it was held
that
The last paragraph of Article 283 contains a blanket provision
that practically covers all the other cases in the preceding
paragraphs. Any other evidence or proof that the defendant is
the father is broad enough to render unnecessary the other
paragraphs of this article. When the evidence submitted in the
action for compulsory recognition is not sufficient to meet [the]
requirements of the first three paragraphs, it may still be
enough under the last paragraph. This paragraph permits
hearsay and reputation evidence, as provided in the Rules of
Court, with respect to illegitimate filiation.
As a necessary consequence of the finding that Christian
Paulo is the son of defendant Narciso Salas, he is entitled to
support
from
the latter (Ilano vs. CA,
supra).
It shall be demandable from the time the person who has the
right to recover the same needs it for maintenance x x. (Art.
203, Family Code of the Philippines).10

Petitioner filed a motion for reconsideration but it was denied

by
the
CA.
Hence,
this
petition
submitting
arguments:chanRoblesvirtualLawlibrary

the

following

1. THE VENUE OF THE CASE WAS IMPROPERLY LAID

BEFORE THE REGIONAL TRIAL COURT OF CABANATUAN
CITY CONSIDERING THAT BOTH PETITIONER AND
RESPONDENT ARE ACTUAL RESIDENTS OF BRGY.
MALAPIT,
SAN
ISIDRO,
NUEVA
ECIJA.
2. THE HONORABLE COURT OF APPEALS ERRED IN
PRONOUNCING THAT PETITIONER WAS AFFORDED THE
FULL MEASURE OF HIS RIGHT TO DUE PROCESS OF LAW
AND IN UPHOLDING THAT THE TRIAL COURT DID NOT
GRAVELY ABUSE ITS DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN IT DECIDED THE
INSTANT CASE WITHOUT AFFORDING PETITIONER THE
RIGHT TO INTRODUCE EVIDENCE IN HIS DEFENSE.
3. THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT THE FILIATION OF CHRISTIAN PAULO WAS
DULY ESTABLISHED PURSUANT TO ARTICLE 175 IN
RELATION TO ARTICLE 172 OF THE FAMILY CODE AND
EXISTING JURISPRUDENCE AND THEREFORE ENTITLED
TO SUPPORT FROM THE PETITIONER.11

We

grant

the

petition.

It is a legal truism that the rules on the venue of personal

actions are fixed for the convenience of the plaintiffs and their
witnesses. Equally settled, however, is the principle that
choosing the venue of an action is not left to a plaintiffs
caprice; the matter is regulated by the Rules of Court.12
In personal actions such as the instant case, the Rules give the
plaintiff the option of choosing where to file his complaint. He
can file it in the place (1) where he himself or any of them
resides, or (2) where the defendant or any of the defendants
resides or may be found.13 The plaintiff or the defendant must
be residents of the place where the action has been instituted
at
the
time
the
action
is
commenced.14
However, petitioner raised the issue of improper venue for the
first time in the Answer itself and no prior motion to dismiss
based on such ground was filed. Under the Rules of Court
before the 1997 amendments, an objection to an improper
venue must be made before a responsive pleading is filed.
Otherwise, it will be deemed waived. 15 Not having been timely
raised, petitioners objection on venue is therefore deemed
waived.
As to the denial of the motion for postponement filed by his
counsel for the resetting of the initial presentation of defense
evidence on April 17, 1998, we find that it was not the first time
petitioners motion for postponement was denied by the trial
court.
Records disclosed that after the termination of the testimony of
respondents last witness on November 29, 1996, the trial court
as prayed for by the parties, set the continuation of hearing for
the reception of evidence for the defendant (petitioner) on
January 27, February 3, and February 10, 1997. In the Order
dated December 17, 1996, petitioner was advised to be ready

with his evidence at those hearing dates earlier scheduled. At

the hearing on January 27, 1997, petitioners former counsel,
Atty. Rolando S. Bala, requested for the cancellation of the
February 3 and 10, 1997 hearings in order to give him time to
prepare for his defense, which request was granted by the trial
court which thus reset the hearing dates to March 3, 14 and 17,
1997. On March 3, 1997, upon oral manifestation by Atty. Bala
and without objection from respondents counsel, Atty.
Feliciano Wycoco, the trial court again reset the hearing to
March 14 and 17, 1997. With the non-appearance of both
petitioner and Atty. Bala on March 14, 1997, the trial court upon
oral manifestation by Atty. Wycoco declared their absence as a
waiver of their right to present evidence and accordingly
deemed
the
case
submitted
for
decision. 16
On July 4, 1997, Atty. Bala withdrew as counsel for petitioner
and Atty. Rafael E. Villarosa filed his appearance as his new
counsel on July 21, 1997. On the same date he filed entry of
appearance, Atty. Villarosa filed a motion for reconsideration of
the March 14, 1997 Order pleading for liberality and
magnanimity of the trial court, without offering any explanation
for Atty. Balas failure to appear for the initial presentation of
their evidence. The trial court thereupon reconsidered its
March 14, 1997 Order, finding it better to give petitioner a
chance to present his evidence. On August 26, 1997, Atty.
Villarosa received a notice of hearing for the presentation of
their evidence scheduled on September 22, 1997. On August
29, 1997, the trial court received his motion requesting that the
said hearing be re-set to October 10, 1997 for the reason that
he had requested the postponement of a hearing in another
case which was incidentally scheduled on September 22, 23
and 24, 1997. As prayed for, the trial court reset the hearing to
October 10, 1997. On said date, however, the hearing was
again moved to December 15, 1997. On February 16, 1998,
the trial court itself reset the hearing to April 17, 1998 since it
was unclear whether Atty. Wycoco received a copy of the
motion.17
On April 17, 1998, petitioner and his counsel failed to appear
but the trial court received on April 16, 1998 an urgent motion
to cancel hearing filed by Atty. Villarosa. The reason given by
the latter was the scheduled hearing on the issuance of writ of
preliminary injunction in another case under the April 8, 1998
Order issued by the RTC of Gapan, Nueva Ecija, Branch 36 in
Civil Case No. 1946. But as clearly stated in the said order, it
was the plaintiffs therein who requested the postponement of
the hearing and it behoved Atty. Villarosa to inform the RTC of
Gapan that he had a previous commitment considering that the
April 17, 1998 hearing was scheduled as early as February 16,
1998. Acting on the motion for postponement, the trial court
denied for the second time petitioners motion for
postponement. Even at the hearing of their motion for
reconsideration of the April 17, 1998 Order on September 21,
1998, Atty. Villarosa failed to appear and instead filed another
motion for postponement. The trial court thus ordered that the
case be submitted for decision stressing that the case had long
been pending and that petitioner and his counsel have been
given opportunities to present their evidence. It likewise denied
a second motion for reconsideration filed by Atty. Villarosa, who
arrived late during the hearing thereof on December 4, 1998. 18

A motion for continuance or postponement is not a matter of

right, but a request addressed to the sound discretion of the
court. Parties asking for postponement have absolutely no right
to assume that their motions would be granted. Thus, they
must be prepared on the day of the hearing.19 Indeed, an order
declaring a party to have waived the right to present evidence
for performing dilatory actions upholds the trial courts duty to
ensure that trial proceeds despite the deliberate delay and
refusal to proceed on the part of one party.20
Atty. Villarosas plea for liberality was correctly rejected by the
trial court in view of his own negligence in failing to ensure
there will be no conflict in his trial schedules. As we held in
Tiomico v. Court of Appeals21:chanRoblesvirtualLawlibrary
Motions for postponement are generally frowned upon by
Courts if there is evidence of bad faith, malice or inexcusable
negligence on the part of the movant. The inadvertence of the
defense counsel in failing to take note of the trial dates and in
belatedly informing the trial court of any conflict in his
schedules of trial or court appearances, constitutes
inexcusable negligence. It should be borne in mind that a client
is bound by his counsels conduct, negligence and mistakes in
handling the case.22

With our finding that there was no abuse of discretion in the

trial courts denial of the motion for postponement filed by
petitioners counsel, petitioners contention that he was
deprived of his day in court must likewise fail. The essence of
due process is that a party is given a reasonable opportunity to
be heard and submit any evidence one may have in support of
ones defense. Where a party was afforded an opportunity to
participate in the proceedings but failed to do so, he cannot
complain of deprivation of due process. If the opportunity is not
availed of, it is deemed waived or forfeited without violating the
constitutional
guarantee.23
We now proceed to the main issue of whether the trial and
appellate courts erred in ruling that respondents evidence
sufficiently proved that her son Christian Paulo is the
illegitimate
child
of
petitioner.
Under Article 175 of the Family Code of the Philippines,
illegitimate filiation may be established in the same way and on
the
same
evidence
as
legitimate
children.
Article 172 of the Family Code
states:chanRoblesvirtualLawlibrary

of

the

Philippines

The filiation of legitimate children is established by any of the

following:
(1) The record of birth appearing in the civil register or a final
judgment;
or
(2) An admission of legitimate filiation in a public document or a
private handwritten instrument and signed by the parent
concerned.

In the absence of the foregoing evidence, the legitimate filiation

shall
be
proved
by:

admission of filiation in a private handwritten instrument signed

by
the
parent
concerned.35

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

legitimate
child;
or

Petitioners reliance on our ruling in Lim v. Court of Appeals36 is

misplaced. In the said case, the handwritten letters of petitioner
contained a clear admission that he is the father of private
respondents daughter and were signed by him. The Court
therein considered the totality of evidence which established
beyond reasonable doubt that petitioner was indeed the father
of private respondents daughter. On the other hand, in Ilano v.
Court of Appeals,37 the Court sustained the appellate courts
finding that private respondents evidence to establish her
filiation with and paternity of petitioner was overwhelming,
particularly the latters public acknowledgment of his amorous
relationship with private respondents mother, and private
respondent as his own child through acts and words, her
testimonial evidence to that effect was fully supported by
documentary evidence. The Court thus ruled that respondent
had adduced sufficient proof of continuous possession of
status
of
a
spurious
child.

(2) Any other means allowed by the Rules of Court and special
laws. (Underscoring supplied.)

Respondent presented the Certificate of Live Birth 24 (Exhibit A1) of Christian Paulo Salas in which the name of petitioner
appears as his father but which is not signed by him.
Admittedly, it was only respondent who filled up the entries and
signed the said document though she claims it was petitioner
who supplied the information she wrote therein.
We have held that a certificate of live birth purportedly
identifying the putative father is not competent evidence of
paternity when there is no showing that the putative father had
a hand in the preparation of the certificate. 25 Thus, if the father
did not sign in the birth certificate, the placing of his name by
the mother, doctor, registrar, or other person is incompetent
evidence of paternity.26 Neither can such birth certificate be
taken as a recognition in a public instrument 27 and it has no
probative value to establish filiation to the alleged father.28
As to the Baptismal Certificate29 (Exhibit B) of Christian Paulo
Salas also indicating petitioner as the father, we have ruled that
while baptismal certificates may be considered public
documents, they can only serve as evidence of the
administration of the sacraments on the dates so specified.
They are not necessarily competent evidence of the veracity of
entries therein with respect to the childs paternity.30
The rest of respondents documentary evidence consists of
handwritten notes and letters, hospital bill and photographs
taken of petitioner and respondent inside their rented
apartment
unit.
Pictures taken of the mother and her child together with the
alleged father are inconclusive evidence to prove paternity.31
Exhibits E and F32 showing petitioner and respondent inside
the rented apartment unit thus have scant evidentiary value.
The Statement of Account33 (Exhibit C) from the Good
Samaritan General Hospital where respondent herself was
indicated as the payee is likewise incompetent to prove that
petitioner is the father of her child notwithstanding petitioners
admission in his answer that he shouldered the expenses in
the delivery of respondents child as an act of charity.
As to the handwritten notes34 (Exhibits D to D-13) of
petitioner and respondent showing their exchange of
affectionate words and romantic trysts, these, too, are not
sufficient to establish Christian Paulos filiation to petitioner as
they were not signed by petitioner and contained no statement
of admission by petitioner that he is the father of said child.
Thus, even if these notes were authentic, they do not qualify
under Article 172 (2) vis-- vis Article 175 of the Family Code
which admits as competent evidence of illegitimate filiation an

Here, while the CA held that Christian Paulo Salas could not
claim open and continuous possession of status of an
illegitimate child, it nevertheless considered the testimonial
evidence sufficient proof to establish his filiation to petitioner.
An illegitimate child is now also allowed to establish his
claimed filiation by any other means allowed by the Rules of
Court and special laws, like his baptismal certificate, a judicial
admission, a family Bible in which his name has been entered,
common reputation respecting his pedigree, admission by
silence, the testimonies of witnesses, and other kinds of proof
admissible under Rule 130 of the Rules of Court. 38 Reviewing
the records, we find the totality of respondents evidence
insufficient to establish that petitioner is the father of Christian
Paulo.
The testimonies of respondent and Murillo as to the
circumstances of the birth of Christian Paulo, petitioners
financial support while respondent lived in Murillos apartment
and his regular visits to her at the said apartment, though
replete with details, do not approximate the overwhelming
evidence, documentary and testimonial presented in Ilano. In
that case, we sustained the appellate courts ruling anchored
on the following factual findings by the appellate court which
was
quoted
at
length
in
the
ponencia:chanRoblesvirtualLawlibrary
It was Artemio who made arrangement for the delivery of
Merceditas (sic) at the Manila Sanitarium and Hospital. Prior to
the delivery, Leoncia underwent prenatal examination
accompanied by Artemio (TSN, p. 33, 5/17/74). After delivery,
they went home to their residence at EDSA in a car owned and
driven
by
Artemio
himself
(id.
p.
36).
Merceditas (sic) bore the surname of Ilano since birth without
any objection on the part of Artemio, the fact that since
Merceditas (sic) had her discernment she had always known
and called Artemio as her Daddy (TSN, pp. 28-29, 10/18/74);
the fact that each time Artemio was at home, he would play

with Merceditas (sic), take her for a ride or restaurants to eat,

and sometimes sleeping with Merceditas (sic) (id. p. 34) and
does all what a father should do for his child bringing home
goodies, candies, toys and whatever he can bring her which a
child enjoys which Artemio gives to Merceditas (sic) (TSN, pp.
38-39, 5/17/74) are positive evidence that Merceditas (sic) is
the child of Artemio and recognized by Artemio as such.
Special attention is called to Exh. E-7 where Artemio was
telling Leoncia the need for a frog test to know the status of
Leoncia.
Plaintiff pointed out that the support by Artemio for Leoncia and
Merceditas (sic) was sometimes in the form of cash personally
delivered to her by Artemio, thru Melencio, thru Elynia (Exhs.
E-2 and E-3, and D-6), or thru Merceditas (sic) herself
(TSN, p. 40, 5/17/74) and sometimes in the form of a check as
the Manila Banking Corporation Check No. 81532 (Exh. G)
and the signature appearing therein which was identified by
Leoncia as that of Artemio because Artemio often gives her
checks and Artemio would write the check at home and saw
Artemio sign the check (TSN, p. 49, 7/18/73). Both Artemio and
Nilda admitted that the check and signature were those of
Artemio (TSN, p. 53, 10/17/77; TSN, p. 19, 10/9/78).
During the time that Artemio and Leoncia were living as
husband and wife, Artemio has shown concern as the father of
Merceditas (sic). When Merceditas (sic) was in Grade 1 at the
St. Joseph Parochial School, Artemio signed the Report Card
of Merceditas (sic) (Exh. H) for the fourth and fifth grading
period(s) (Exh. H-1 and H-2) as the parent of Merceditas
(sic). Those signatures of Artemio [were] both identified by
Leoncia and Merceditas (sic) because Artemio signed Exh. H1 and H-2 at their residence in the presence of Leoncia,
Merceditas (sic) and of Elynia (TSN, p. 57, 7/18/73; TSN, p. 28,
10/1/73). x x x.
xxx xxx xxx

When Artemio run as a candidate in the Provincial Board of

Cavite[,] Artemio gave Leoncia his picture with the following
dedication: To Nene, with best regards, Temiong. (Exh. I).
(pp.
19-20,
Appellants
Brief)
The mere denial by defendant of his signature is not sufficient
to offset the totality of the evidence indubitably showing that
the signature thereon belongs to him. The entry in the
Certificate of Live Birth that Leoncia and Artemio was falsely
stated therein as married does not mean that Leoncia is not
appellees daughter. This particular entry was caused to be
made by Artemio himself in order to avoid embarrassment.39

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

by themselves are not competent proof of paternity and the
totality of respondents evidence failed to establish Christian
Paulos
filiation
to
petitioner.
Time and again, this Court has ruled that a high standard of
proof is required to establish paternity and filiation. An order for
recognition and support may create an unwholesome situation

or may be an irritant to the family or the lives of the parties so

that it must be issued only if paternity or filiation is established
by
clear
and
convincing
evidence.40
Finally, we note the Manifestation and Motion 41 filed by
petitioners counsel informing this Court that petitioner had died
on
May
6,
2010.
The action for support having been filed in the trial court when
petitioner was still alive, it is not barred under Article 175 (2)42
of the Family Code. We have also held that the death of the
putative father is not a bar to the action commenced during his
lifetime by one claiming to be his illegitimate child.43 The rule
on substitution of parties provided in Section 16, Rule 3 of the
1997 Rules of Civil Procedure, thus applies.
SEC. 16. Death of party; duty of counsel. Whenever a party
to a pending action dies, and the claim is not thereby
extinguished, it shall be the duty of his counsel to inform the
court within thirty (30) days after such death of the fact thereof,
and to give the name and address of his legal representative or
representatives. Failure of counsel to comply with his duty shall
be
a
ground
for
disciplinary
action.
The 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.
The heirs of the deceased may be allowed to be substituted for
the deceased, without requiring the appointment of an executor
or administrator and the court may appoint a guardian ad litem
for
the
minor
heirs.
The court shall forthwith order said legal representative or
representatives to appear and be substituted within a period of
thirty
(30)
days
from
notice.
If no legal representative is named by the counsel for the
deceased party, or if the one so named shall fail to appear
within the specified period, the court may order the opposing
party, within a specified time to procure the appointment of an
executor or administrator for the estate of the deceased and
the latter shall immediately appear for and on behalf of the
deceased. The court charges in procuring such appointment, if
defrayed by the opposing party, may be recovered as costs.

WHEREFORE, the petition for review on certiorari is

GRANTED. The Decision dated July 18, 2006 and Resolution
dated October 19, 2007 of the Court of Appeals in CA-GR. CV
No. 64379 are hereby REVERSED and SET ASIDE. Civil Case
No. 2124-AF of the Regional Trial Court of Cabanatuan City,
Branch
26
is
DISMISSED.
No pronouncement as to costs. chanRoblesvirtualLawlibrary
SO ORDERED.

Republic
SUPREME
Manila

of

the

Philippines
COURT

FIRST DIVISION

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

MAURICIO SAYSON, ROSARIO SAYSON-MALONDA,
BASILISA SAYSON-LIRIO, REMEDIOS SAYSON-REYES
and
JUANA
C.
BAUTISTA,
petitioners,
vs.
THE HONORABLE COURT OF APPEALS, DELIA SAYSON,
assisted by her husband, CIRILO CEDO, JR., EDMUNDO
SAYSON AND DORIBEL SAYSON, respondents.

CRUZ, J.:
At issue in this case is the status of the private respondents
and their capacity to inherit from their alleged parents and
grandparents. The petitioners deny them that right, asserting if
for themselves to the exclusion of all others.
The relevant genealogical facts are as follows.
Eleno and Rafaela Sayson begot five children, namely,
Mauricio, Rosario, Basilisa, Remedios and Teodoro. Eleno died
on November 10, 1952, and Rafaela on May 15, 1976.
Teodoro, who had married Isabel Bautista, died on March 23,
1972. His wife died nine years later, on March 26, 1981. Their
properties were left in the possession of Delia, Edmundo, and
Doribel, all surnamed Sayson, who claim to be their children.
On April 25, 1983, Mauricio, Rosario, Basilisa, and Remedios,
together with Juana C. Bautista, Isabel's mother, filed a
complaint for partition and accounting of the intestate estate of
Teodoro and Isabel Sayson. It was docketed as Civil Case No.
1030 in Branch 13 of the Regional Trial Court of Albay. The
action was resisted by Delia, Edmundo and Doribel Sayson,
who alleged successional rights to the disputed estate as the
decedents' lawful descendants.
On July 11, 1983, Delia, Edmundo and Doribel filed their own
complaint, this time for the accounting and partition of the
intestate estate of Eleno and Rafaela Sayson, against the

couple's four surviving children. This was docketed as Civil

Case No. 1042 in the Regional Trial Court of Albay, Branch 12.
The complainants asserted the defense they raised in Civil
Case No. 1030, to wit, that Delia and Edmundo were the
adopted children and Doribel was the legitimate daughter of
Teodoro and Isabel. As such, they were entitled to inherit
Teodoro's share in his parents' estate by right of
representation.
Both cases were decided in favor of the herein private
respondents on the basis of practically the same evidence.
Judge Rafael P. Santelices declared in his decision dated May
26,
1986, 1 that Delia and Edmundo were the legally adopted
children of Teodoro and Isabel Sayson by virtue of the decree
of adoption dated March 9, 1967. 2 Doribel was their legitimate
daughter as evidenced by her birth certificate dated February
27, 1967. 3 Consequently, the three children were entitled to
inherit from Eleno and Rafaela by right of representation.
In his decision dated September 30, 1986, 4 Judge Jose S.
Saez dismissed Civil Case No. 1030, holding that the
defendants, being the legitimate heirs of Teodoro and Isabel as
established by the aforementioned evidence, excluded the
plaintiffs from sharing in their estate.
Both cases were appealed to the Court of Appeals, where they
were consolidated. In its own decision dated February 28,
1989, 5 the respondent court disposed as follows:
WHEREFORE, in Civil Case No. 1030 (CA-G.R. No. 11541),
the appealed decision is hereby AFFIRMED. In Civil case No.
1042 (CA-G.R. No. 12364), the appealed decision is
MODIFIED in that Delia and Edmundo Sayson are disqualified
from inheriting from the estate of the deceased spouses Eleno
and Rafaela Sayson, but is affirmed in all other respects.
SO ORDERED.
That judgment is now before us in this petition for review by
certiorari. Reversal of the respondent court is sought on the
ground that it disregarded the evidence of the petitioners and
misapplied the pertinent law and jurisprudence when it
declared the private respondents as the exclusive heirs of
Teodoro and Isabel Sayson.
The contention of the petitioners is that Delia and Edmundo
were not legally adopted because Doribel had already been
born on February 27, 1967, when the decree of adoption was
issued on March 9, 1967. The birth of Doribel disqualified her
parents from adopting. The pertinent provision is Article 335 of
the Civil Code, naming among those who cannot adopt "(1)
Those who have legitimate, legitimated, acknowledged natural
children, or natural children by legal fiction."
Curiously enough, the petitioners also argue that Doribel
herself is not the legitimate daughter of Teodoro and Isabel but
was in fact born to one Edita Abila, who manifested in a petition
for guardianship of the child that she was her natural mother. 6

The inconsistency of this position is immediately apparent. The

petitioners seek to annul the adoption of Delia and Edmundo
on the ground that Teodoro and Isabel already had a legitimate
daughter at the time but in the same breath try to demolish this
argument by denying that Doribel was born to the couple.
On top of this, there is the vital question of timeliness. It is too
late now to challenge the decree of adoption, years after it
became final and executory. That was way back in 1967. 7
Assuming the the petitioners were proper parties, what they
should have done was seasonably appeal the decree of
adoption, pointing to the birth of Doribel that disqualified
Teodoro and Isabel from adopting Delia and Edmundo. They
did not. In fact, they should have done this earlier, before the
decree of adoption was issued. They did not, although Mauricio
claimed he had personal knowledge of such birth.
As the respondent court correctly observed:
When Doribel was born on February 27, 1967, or about TEN
(10) days before the issuance of the Order of Adoption, the
petitioners could have notified the court about the fact of birth
of DORIBEL and perhaps withdrew the petition or perhaps
petitioners could have filed a petition for the revocation or
rescission of the adoption (although the birth of a child is not
one of those provided by law for the revocation or rescission of
an adoption). The court is of the considered opinion that the
adoption of the plaintiffs DELIA and EDMUNDO SAYSON is
valid, outstanding and binding to the present, the same not
having been revoked or rescinded.
Not having any information of Doribel's birth to Teodoro and
Isabel Sayson, the trial judge cannot be faulted for granting the
petition for adoption on the finding inter alia that the adopting
parents were not disqualified.
A no less important argument against the petitioners is that
their challenge to the validity of the adoption cannot be made
collaterally, as in their action for partition, but in a direct
proceeding frontally addressing the issue.
The settled rule is that a finding that the requisite jurisdictional
facts exists, whether erroneous or not, cannot be questioned in
a collateral proceeding, for a presumption arises in such cases
where the validity of the judgment is thus attacked that the
necessary jurisdictional facts were proven [Freeman on
Judgments, Vol. I, Sec. 350, pp. 719-720]. (Emphasis
supplied.)
In the case of Santos v. Aranzanso, 8 this Court declared:
Anent this point, the rulings are summed up in 2 American
Jurisprudence, 2nd Series, Adoption, Sec. 75, p. 922, thus:
An adoption order implies the finding of the necessary facts
and the burden of proof is on the party attacking it; it cannot be
considered void merely because the fact needed to show
statutory compliance is obscure. While a judicial determination
of some particular fact, such as the abandonment of his next of
kin to the adoption, may be essential to the exercise of
jurisdiction to enter the order of adoption, this does not make it
essential to the jurisdictional validity of the decree that the fact

be determined upon proper evidence, or necessarily in

accordance with the truth; a mere error cannot affect the
jurisdiction, and the determination must stand until reversed on
appeal, and hence cannot be collaterally attacked. If this were
not the rule, the status of adopted children would always be
uncertain, since the evidence might not be the same at all
investigations, and might be regarded with different effect by
different tribunals, and the adoption might be held by one court
to have been valid, while another court would hold it to have
been of no avail. (Emphasis supplied.)

An adopted child succeeds to the property of the adopting

parents in the same manner as a legitimate child.

On the question of Doribel's legitimacy, we hold that the

findings of the trial courts as affirmed by the respondent court
must be sustained. Doribel's birth certificate is a formidable
piece of evidence. It is one of the prescribed means of
recognition under Article 265 of the Civil Code and Article 172
of the Family Code. It is true, as the petitioners stress, that the
birth certificate offers only prima facie evidence 9 of filiation and
may be refuted by contrary evidence. However, such evidence
is lacking in the case at bar.

Coming now to the right of representation, we stress first the

following pertinent provisions of the Civil Code:

Mauricio's testimony that he was present when Doribel was

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

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

descends first to his children and grandchildren before it
ascends to his parents and thereafter spreads among his
collateral relatives. It is also supposed that one of his purposes
in acquiring properties is to leave them eventually to his
children as a token of his love for them and as a provision for
their continued care even after he is gone from this earth.

Art. 970. Representation is a right created by fiction of law, by

virtue of which the representative is raised to the place and the
degree of the person represented, and acquires the rights
which the latter would have if he were living or if he could have
inherited.
Art. 971. The representative is called to the succession by the
law and not by the person represented. The representative
does not succeed the person represented but the one who the
person represented would have succeeded.
Art. 981. Should children of the deceased and descendants of
other children who are dead, survive, the former shall inherit in
their own right, and the latter by right of representation.
There is no question that as the legitimate daughter of Teodoro
and thus the granddaughter of Eleno and Rafaela, Doribel has
a right to represent her deceased father in the distribution of
the intestate estate of her grandparents. Under Article 981,
quoted above, she is entitled to the share her father would
have directly inherited had he survived, which shall be equal to
the shares of her grandparents' other children. 13
But a different conclusion must be reached in the case of Delia
and Edmundo, to whom the grandparents were total strangers.
While it is true that the adopted child shall be deemed to be a
legitimate child and have the same right as the latter, these
rights do not include the right of representation. The
relationship created by the adoption is between only the
adopting parents and the adopted child and does not extend to
the blood relatives of either party. 14
In sum, we agree with the lower courts that Delia and
Edmundo as the adopted children and Doribel as the legitimate
daughter of Teodoro Sayson and Isabel Bautista, are their
exclusive heirs and are under no obligation to share the estate
of their parents with the petitioners. The Court of Appeals was
correct, however, in holding that only Doribel has the right of
representation in the inheritance of her grandparents' intestate
estate, the other private respondents being only the adoptive
children of the deceased Teodoro.
WHEREFORE, the petition is DENIED, and the challenged
decision of the Court of Appeals is AFFIRMED in toto, with
costs against the petitioners.

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.
DECISION
DE LEON, JR., J.:
Before us is a petition for review on certiorari assailing the
decision dated June 4, 1999 of the Court of Appeals in CAG.R. C.V. No. 45394xxxiv 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 TanhotiLiyao, 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.xxxv 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."xxxvi
The facts as alleged by petitioner are as follows:
Corazon G. Garcia is legally married to but living separately
from Ramon M. Yulo for more than ten (10) years at the time of
the institution of the said civil case. Corazon cohabited with the
late William Liyao from 1965 up to the time of Williams untimely
demise on December 2, 1975. They lived together in the
company of Corazons two (2) children from her subsisting
marriage, namely:
Enrique and Bernadette, both surnamed Yulo, in a succession
of rented houses in Quezon City and Manila. This was with the
knowledge of William Liyaos legitimate children, Tita Rose L.

Tan and Linda Christina Liyao-Ortiga, from his subsisting

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

occasions, she would usually see William Liyao in sleeping

clothes. When Corazon, during the latter part of 1974, was
pregnant with her child Billy, Maurita often visited her three (3)
to four (4) times a week in Greenhills and later on in White
Plains where she would often see William Liyao. Being a close
friend of Corazon, she was at the Cardinal Santos Memorial
Hospital during the birth of Billy. She continuously visited them
at White Plains and knew that William Liyao, while living with
her friend Corazon, gave support by way of grocery supplies,
money for household expenses and matriculation fees for the
two (2) older children, Bernadette and Enrique. During William
Liyaos birthday on November 22, 1975 held at the Republic
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.xliii 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.xliv Unfortunately, this did
not happen since William Liyao passed away on December 2,
1975. Maurita attended Mr. Liyaos funeral and helped Corazon
pack his clothes. She even recognized a short sleeved shirt of
blue and grayxlv which Mr. Liyao wore in a photographxlvi as well
as another shirt of lime green xlvii as belonging to the deceased.
A note was also presented with the following inscriptions: To
Cora, Love From William.xlviii Maurita remembered having
invited the couple during her mothers birthday where the
couple had their pictures taken while exhibiting affectionate
poses with one another. Maurita knew that Corazon is still
married to Ramon Yulo since her marriage has not been
annulled nor is Corazon legally separated from her said
husband. However, during the entire cohabitation of William
Liyao with Corazon Garcia, Maurita had not seen Ramon Yulo
or any other man in the house when she usually visited
Corazon.
Gloria Panopio testified that she is the owner of a beauty parlor
and that she knew that Billy is the son of her neighbors, William
Liyao and Corazon Garcia, the latter being one of her
customers. Gloria met Mr. Liyao at Corazons house in Scout
Delgado, Quezon City in the Christmas of 1965. Gloria had
numerous occasions to see Mr. Liyao from 1966 to 1974 and
even more so when the couple transferred to White Plains,
Quezon City from 1974-1975. At the time Corazon was
conceiving, Mr. Liyao was worried that Corazon might have
another miscarriage so he insisted that she just stay in the
house, play mahjong and not be bored. Gloria taught Corazon
how to play mahjong and together with Atty. Brillantes wife and
sister-in-law, had mahjong sessions among themselves. Gloria
knew that Mr. Liyao provided Corazon with a rented house,
paid the salary of the maids and food for Billy. He also gave
Corazon financial support. Gloria knew that Corazon is married
but is separated from Ramon Yulo although Gloria never had
any occasion to see Mr. Yulo with Corazon in the house where
Mr. Liyao and Corazon lived.
Enrique Garcia Yulo testified that he had not heard from his
father, Ramon Yulo, from the time that the latter abandoned
and separated from his family. Enrique was about six (6) years
old when William Liyao started to live with them up to the time
of the latters death on December 2, 1975. Mr. Liyao was very

supportive and fond of Enriques half brother, Billy. He identified

several pictures showing Mr. Liyao carrying Billy at the house
as well as in the office. Enriques testimony was corroborated
by his sister, Bernadette Yulo, who testified that the various
pictures showing Mr. Liyao carrying Billy could not have been
superimposed and that the negatives were in the possession of
her mother, Corazon Garcia.
Respondents, on the other hand, painted a different picture of
the story.
Linda Christina Liyao-Ortiga stated that her parents, William
Liyao and Juanita Tanhoti-Liyao, were legally married.xlix Linda
grew up and lived with her parents at San Lorenzo Village,
Makati, Metro Manila until she got married; that her parents
were not separated legally or in fact and that there was no
reason why any of her parents would institute legal separation
proceedings in court. Her father lived at their house in San
Lorenzo Village and came home regularly. Even during out of
town business trips or for conferences with the lawyers at the
office, her father would change his clothes at home because of
his personal hygiene and habits. Her father reportedly had
trouble sleeping in other peoples homes. Linda described him
as very conservative and a strict disciplinarian. He believed
that no amount of success would compensate for failure of a
home. As a businessman, he was very tough, strong, fought for
what he believed in and did not give up easily. He suffered two
strokes before the fatal attack which led to his death on
December 2, 1975. He suffered a stroke at the office sometime
in April-May 1974 and was attended by Dr. Santiago Co. He
then stayed in the house for two (2) to three (3) months for his
therapy and acupuncture treatment. He could not talk, move,
walk, write or sign his name. In the meantime, Linda and her
sister, Tita Rose Liyao-Tan, ran the office. She handled the
collection of rents while her sister referred legal matters to their
lawyers. William Liyao was bedridden and had personally
changed. He was not active in business and had dietary
restrictions. Mr. Liyao also suffered a milder stroke during the
latter part of September to October 1974. He stayed home for
two (2) to three (3) days and went back to work. He felt
depressed, however, and was easily bored. He did not put in
long hours in the office unlike before and tried to spend more
time with his family.
Linda testified that she knew Corazon Garcia is still married to
Ramon Yulo. Corazon was not legally separated from her
husband and the records from the Local Civil Registrar do not
indicate that the couple obtained any annulment l of their
marriage. Once in 1973, Linda chanced upon Ramon Yulo
picking up Corazon Garcia at the company garage.
Immediately after the death of Lindas father, Corazon went to
Lindas office for the return of the formers alleged investments
with the Far East Realty Investment, Inc. including a parcel of
land sold by Ortigas and Company. Linda added that Corazon,
while still a Vice-President of the company, was able to take
out documents, clothes and several laminated pictures of
William Liyao from the office. There was one instance when
she was told by the guards, Mrs. Yulo is leaving and taking out
things again.li Linda then instructed the guards to bring Mrs.
Yulo to the office upstairs but her sister, Tita Rose, decided to
let Corazon Garcia go. Linda did not recognize any article of

clothing which belonged to her father after having been shown

three (3) large suit cases full of mens clothes, underwear,
sweaters, shorts and pajamas.
Tita Rose Liyao-Tan testified that her parents were legally
married and had never been separated. They resided at No. 21
Hernandez Street, San Lorenzo Village, Makati up to the time
of her fathers death on December 2, 1975. lii 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.liii Tita Rose testified that after the death of Mr. Liyao,
Corazon Garcia was paid the amount of One Hundred
Thousand Pesos (P100,000.00) representing her investment in
the Far East Realty Investment Inc. Tita Rose also stated that
her family never received any formal demand that they
recognize a certain William Liyao, Jr. as an illegitimate son of
her father, William Liyao. After assuming the position of
President of the company, Tita Rose did not come across any
check signed by her late father representing payment to
lessors as rentals for the house occupied by Corazon Garcia.
Tita Rose added that the laminated photographs presented by
Corazon Garcia are the personal collection of the deceased
which were displayed at the latters office.
The last witness who testified for the respondents was Ramon
Pineda, driver and bodyguard of William Liyao from 1962 to
1974, who said that he usually reported for work at San
Lorenzo Village, Makati to pick up his boss at 8:00 oclock in
the morning. At past 7:00 oclock in the evening, either Carlos
Palamigan or Serafin Villacillo took over as night shift driver.
Sometime between April and May 1974, Mr. Liyao got sick. It
was only after a month that he was able to report to the office.
Thereafter, Mr. Liyao was not able to report to the office
regularly. Sometime in September 1974, Mr. Liyao suffered
from another heart attack. Mr. Pineda added that as a driver
and bodyguard of Mr. Liyao, he ran errands for the latter
among which was buying medicine for him like capasid and
aldomet. On December 2, 1975, Mr. Pineda was called inside
the office of Mr. Liyao. Mr. Pineda saw his employer leaning on
the table. He tried to massage Mr. Liyaos breast and decided
later to carry and bring him to the hospital but Mr. Liyao died
upon arrival thereat. Mrs. Liyao and her daughter, Linda LiyaoOrtiga were the first to arrive at the hospital.
Mr. Pineda also declared that he knew Corazon Garcia to be
one of the employees of the Republic Supermarket. People in
the office knew that she was married. Her husband, Ramon
Yulo, would sometimes go to the office. One time, in 1974, Mr.
Pineda saw Ramon Yulo at the office garage as if to fetch
Corazon Garcia. Mr. Yulo who was also asking about cars for
sale, represented himself as car dealer.
Witness Pineda declared that he did not know anything about
the claim of Corazon. He freely relayed the information that he
saw Mr. Yulo in the garage of Republic Supermarket once in
1973 and then in 1974 to Atty. Quisumbing when he went to
the latters law office. Being the driver of Mr. Liyao for a number

of years, Pineda said that he remembered having driven the

group of Mr. Liyao, Atty. 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.

in it to prove that the same was opened by William Liyao for

either petitioner or Corazon Garcia since William Liyaos
signature and name do not appear thereon.

On August 31, 1993, the trial court rendered a decision, the

dispositive portion of which reads as follows:

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?

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.;

His motion for reconsideration having been denied, petitioner

filed the present petition.

(b) Declaring the minor William Liyao, Jr. as the illegitimate

(spurious) son of the deceased William Liyao;

We deny the present petition.

(c) Ordering the defendants Juanita Tanhoti Liyao, Pearl

Margaret L. Tan, Tita Rose L. Tan and Christian Liyao, to
recognize, and acknowledge the minor William Liyao, Jr. as a
compulsory heir of the deceased William Liyao, entitled to all
succesional rights as such; and

Under the New Civil Code, a child born and conceived during a
valid marriage is presumed to be legitimate.lv 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.lvi

(d) Costs of suit.liv

In ruling for herein petitioner, the trial court said it was
convinced by preponderance of evidence that the deceased
William Liyao sired William Liyao, Jr. since the latter was
conceived at the time when Corazon Garcia cohabited with the
deceased. The trial court observed that herein petitioner had
been in continuous possession and enjoyment of the status of
a child of the deceased by direct and overt acts of the latter
such as securing the birth certificate of petitioner through his
confidential secretary, Mrs. Virginia Rodriguez; openly and
publicly acknowledging petitioner as his son; providing
sustenance and even introducing herein petitioner to his
legitimate children.
The Court of Appeals, however, reversed the ruling of the trial
court saying that the law favors the legitimacy rather than the
illegitimacy of the child and the presumption of legitimacy is
thwarted only on ethnic ground and by proof that marital
intimacy between husband and wife was physically impossible
at the period cited in Article 257 in relation to Article 255 of the
Civil Code. The appellate court gave weight to the testimonies
of some witnesses for the respondents that Corazon Garcia
and Ramon Yulo who were still legally married and have not
secured legal separation, were seen in each others company
during the supposed time that Corazon cohabited with the
deceased William Liyao. The appellate court further noted that
the birth certificate and the baptismal certificate of William
Liyao, Jr. which were presented by petitioner are not sufficient
to establish proof of paternity in the absence of any evidence
that the deceased, William Liyao, had a hand in the preparation
of said certificates and considering that his signature does not
appear thereon. The Court of Appeals stated that neither do
family pictures constitute competent proof of filiation. With
regard to the passbook which was presented as evidence for
petitioner, the appellate court observed that there was nothing

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 lvii
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, lviii 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.lix

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. lx
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. lxi
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 o an
insult to his memory.lxii
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.lxiii We cannot allow petitioner to
maintain his present petition and subvert the clear mandate of
the law that only the husband, or in exceptional circumstances,
his heirs, could impugn the legitimacy of a child born in a valid
and subsisting marriage. The child himself cannot choose his
own filiation. If the husband, presumed to be the father does
not impugn the legitimacy of the child, then the status of the
child is fixed, and the latter cannot choose to be the child of his
mothers alleged paramour. On the other hand, if the
presumption of legitimacy is overthrown, the child cannot elect
the paternity of the husband who successfully defeated the
presumption.lxiv
Do the acts of Enrique and Bernadette Yulo, the undisputed
children of Corazon Garcia with Ramon Yulo, in testifying for
herein petitioner amount to impugnation of the legitimacy of the
latter?
We think not. As earlier stated, it is only in exceptional cases
that the heirs of the husband are allowed to contest the
legitimacy of the child. There is nothing on the records to
indicate that Ramon Yulo has already passed away at the time
of the birth of the petitioner nor at the time of the initiation of
this proceedings. Notably, the case at bar was initiated by
petitioner himself through his mother, Corazon Garcia, and not
through Enrique and Bernadette Yulo. It is settled that the
legitimacy of the child can be impugned only in a direct action
brought for that purpose, by the proper parties and within the
period limited by law.
Considering the foregoing, we find no reason to discuss the
sufficiency of the evidence presented by both parties on the
petitioners claim of alleged filiation with the late William Liyao.
In any event, there is no clear, competent and positive

evidence presented by the petitioner that his alleged father had

admitted or recognized his paternity.
WHEREFORE, the instant petition is DENIED. The assailed
decision of the Court of Appeals in CA-G.R. CV No. 45394 is
hereby AFFIRMED. No costs.
SO ORDERED.

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.
DECISION
VITUG, J.:
The petition involves the case of two illegitimate children who,
having been born in lawful wedlock, claim to be the illegitimate
scions of the decedent in order to enforce their respective
shares in the latters estate under the rules on succession.
Danilo B. de Jesus and Carolina Aves de Jesus got married
on 23 August 1964. It was during this marriage that Jacqueline
A. de Jesus and Jinkie Christie A. de Jesus, herein petitioners,
were born, the former on 01 March 1979 and the latter on 06
July 1982.
In a notarized document, dated 07 June 1991, Juan G. Dizon
acknowledged Jacqueline and Jinkie de Jesus as being his
own illegitimate children by Carolina Aves de Jesus. Juan G.
Dizon died intestate on 12 March 1992, leaving behind
considerable assets consisting of shares of stock in various
corporations and some real property. It was on the strength of
his notarized acknowledgment that petitioners filed a complaint
on 01 July 1993 for Partition with Inventory and Accounting of
the Dizon estate with the Regional Trial Court, Branch 88, of
Quezon City.
Respondents, the surviving spouse and legitimate children of
the decedent Juan G. Dizon, including the corporations of
which the 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 birth certificates presented by respondents
appeared to have effectively contradicted petitioners allegation
of illegitimacy.
On 03 January 2000, long after submitting their answer, pretrial 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.lxv It decreed that the
declaration of heirship could only be made in a special
proceeding inasmuch as petitioners were seeking the
establishment of a status or right.
Petitioners assail the foregoing order of the trial court in the
instant petition for review on certiorari. Basically, petitioners
maintain that their recognition as being illegitimate children of
the decedent, embodied in an authentic writing, is in itself
sufficient to establish their status as such and does not require
a separate action for judicial approval following the doctrine
enunciated in Divinagracia vs. Bellosillo.lxvi
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,lxvii 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.lxviii 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.lxix 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.lxx Where, instead, a claim for
recognition is predicated on other evidence merely
tending to prove paternity, i.e., outside of a record of birth,
a will, a statement before a court of record or an authentic
writing, judicial action within the applicable statute of
limitations is essential in order to establish the childs
acknowledgment.lxxi
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.lxxii 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.lxxiii
Quite remarkably, upon the expiration of the periods set forth in
Article 170,lxxiv and in proper cases Article 171,lxxv 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.lxxvi
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,lxxvii or in exceptional
instances the latters heirs,lxxviii can contest in an
appropriate action the legitimacy of a child born to his
wife. Thus, it is only when the legitimacy of a child has
been successfully impugned that the paternity of the
husband can be rejected.
Respondents correctly argued that petitioners hardly could find
succor in Divinagracia. In said case, the Supreme Court
remanded to the trial court for further proceedings the action
for partition filed by an illegitimate child who had claimed to be
an acknowledged spurious child by virtue of a private
document, signed by the acknowledging parent, evidencing
such recognition. It was not a case of legitimate children
asserting to be somebody elses illegitimate children.
Petitioners totally ignored the fact that it was not for them,
given the attendant circumstances particularly, to declare that

they could not have been the legitimate children, clearly

opposed to the entries in their respective birth certificates, of
Danilo and Carolina de Jesus.
The rule that the written acknowledgment made by the
deceased Juan G. Dizon establishes petitioners alleged
illegitimate filiation to the decedent cannot be validly invoked to
be of any relevance in this instance. This issue, i.e., whether
petitioners are indeed the acknowledged illegitimate offsprings
of the decedent, cannot be aptly adjudicated without an action
having been first been instituted to impugn their legitimacy as
being the children of Danilo B. de Jesus and Carolina Aves de
Jesus born in lawful wedlock. Jurisprudence is strongly settled
that the paramount declaration of legitimacy by law cannot be
attacked collaterally,lxxix one that can only be repudiated or
contested in a direct suit specifically brought for that
purpose.lxxx 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.lxxxi
WHEREFORE, the foregoing disquisitions considered, the
instant petition is DENIED. No costs.
SO ORDERED.

THIRD DIVISION
[G.R. No. 123450. August 31, 2005]
GERARDO B. CONCEPCION, petitioner, vs. COURT OF
APPEALS and MA. THERESA ALMONTE, respondents.
DECISION
CORONA, J.:
The child, by reason of his mental and physical immaturity,
needs special safeguard and care, including appropriate legal
protection before as well as after birth.[1] In case of assault on
his rights by those who take advantage of his innocence and
vulnerability, the law will rise in his defense with the singleminded 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.
Theresas parents in Fairview, Quezon City.[3] Almost a year
later, on December 8, 1990, Ma. Theresa gave birth to Jose
Gerardo.[4]
Gerardo and Ma. Theresas relationship turned out to be shortlived, however. On December 19, 1991, Gerardo filed a petition
to have his marriage to Ma. Theresa annulled on the ground of
bigamy.[5] He alleged that nine years before he married Ma.
Theresa on December 10, 1980, she had married one Mario
Gopiao, which marriage was never annulled.[6] Gerardo also
found out that Mario was still alive and was residing in Loyola
Heights, Quezon City.[7]
Ma. Theresa did not deny marrying Mario when she was
twenty years old. She, however, averred that the marriage was
a sham and that she never lived with Mario at all.[8]
The trial court ruled that Ma. Theresas marriage to Mario was
valid and subsisting when she married Gerardo and annulled
her marriage to the latter for being bigamous. It declared Jose
Gerardo to be an illegitimate child as a result. The custody of
the child was awarded to Ma. Theresa while Gerardo was
granted visitation rights.[9]
Ma. Theresa felt betrayed and humiliated when Gerardo had
their marriage annulled. She held him responsible for the
bastardization of Gerardo. She moved for the reconsideration
of the above decision INSOFAR ONLY as that portion of the
decision which grant(ed) to the petitioner so-called visitation

rights between the hours of 8 in the morning to 12:00 p.m. of

any Sunday.[10] She argued that there was nothing in the law
granting visitation rights in favor of the putative father of an
illegitimate child.[11] She further maintained that Jose Gerardos
surname should be changed from Concepcion to Almonte, her
maiden name, following the rule that an illegitimate child shall
use the mothers surname.
Gerardo opposed the motion. He insisted on his visitation
rights and the retention of Concepcion as Jose Gerardos
surname.
Applying the best interest of the child principle, the trial court
denied Ma. Theresas motion and made the following
observations:
It is a pity that the parties herein seem to be using their son to
get at or to hurt the other, something they should never do if
they want to assure the normal development and well-being of
the boy.
The Court allowed visitorial rights to the father knowing that the
minor needs a father, especially as he is a boy, who must have
a father figure to 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 respondents Motion for Reconsideration
has to be, as it is hereby DENIED.[12]
Ma. Theresa elevated the case to the Court of Appeals,
assigning as error the ruling of the trial court granting visitation
rights to Gerardo. She likewise opposed the continued use of
Gerardos surname (Concepcion) despite the fact that Jose
Gerardo had already been declared illegitimate and should
therefore use her surname (Almonte). The appellate court
denied the petition and affirmed in toto the decision of the trial
court.[13]
On the issue raised by Ma. Theresa that there was nothing in
the law that granted a putative father visitation rights over his
illegitimate child, the appellate court affirmed the best interest
of the child policy invoked by the court a quo. It ruled that [a]t
bottom, it (was) the childs welfare and not the convenience of
the parents which (was) the primary consideration in granting
visitation rights a few hours once a week.[14]
The appellate court likewise held that an illegitimate child
cannot use the mothers surname motu proprio. The child,
represented by the mother, should file a separate proceeding
for a change of name under Rule 103 of the Rules of Court to
effect the correction in the civil registry.[15]

Undaunted, Ma. Theresa moved for the reconsideration of the

adverse decision of the appellate court. She also filed a motion
to set the case for oral arguments so that she could better
ventilate the issues involved in the controversy.
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 rapproachment between the married
couple, and would mean a judicial seal upon an illegitimate
relationship.[16]
The appellate court brushed aside the common admission of
Gerardo and Ma. Theresa that Jose Gerardo was their son. It
gave little weight to Jose Gerardos birth certificate showing that
he was born a little less than a year after Gerardo and Ma.
Theresa were married:
We are not unaware of the movants argument that various
evidence exist that appellee and the appellant have judicially
admitted that the minor is their natural child. But, in the same
vein, We cannot overlook the fact that Article 167 of the Family
Code mandates:
The child shall be considered legitimate although the mother
may have declared against its legitimacy or may have been
sentenced as an adulteress. (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 ones legitimacy
or illegitimacy cannot ever be compromised. Not even the
birth certificate of the minor can change his status for the
information contained therein are merely supplied by the

mother and/or the supposed father. It should be what the law

says and not what a parent says it is.[17] (Emphasis supplied)
Shocked and stunned, Gerardo moved for a reconsideration of
the above decision but the same was denied.[18] Hence, this
appeal.
The status and filiation of a child cannot be compromised.[19]
Article 164 of the Family Code is clear. A child who is
conceived or born during the marriage of his parents is
legitimate.[20]
As a guaranty in favor of the 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 of Cabatania v. Court of Appeals[23]:
The presumption of legitimacy does not only flow out of a
declaration in the statute but is based on the broad principles
of natural justice and the supposed virtue of the mother. It is
grounded on the policy to protect the innocent offspring from
the odium of illegitimacy.
Gerardo invokes Article 166 (1)(b)[24] of the Family Code. He
cannot. He has no standing in law to dispute the status of Jose
Gerardo. Only Ma. Theresas husband Mario or, in a proper
case,[25] his heirs, who can contest the legitimacy of the child
Jose Gerardo born to his wife. [26] Impugning the legitimacy of a
child is a strictly personal right of the husband or, in exceptional
cases, his heirs.[27] Since the marriage of Gerardo and Ma.
Theresa was void from the very beginning, he never became
her husband and thus never acquired any right to impugn the
legitimacy of her child.
The presumption of legitimacy proceeds from the sexual union
in marriage, particularly during the period of conception.[28] To
overthrow this presumption on the basis of Article 166 (1)(b) of
the Family Code, it must be shown beyond reasonable doubt
that there was no access that could have enabled the husband
to father the child.[29] Sexual intercourse is to be presumed
where personal access is not disproved, unless such
presumption is rebutted by evidence to the contrary.[30]
The presumption is quasi-conclusive and may be refuted only
by the evidence of physical impossibility of coitus between
husband and wife within the first 120 days of the 300 days
which immediately preceded the birth of the child.[31]
To rebut the presumption, the separation between the spouses
must be such as to make marital intimacy impossible. [32] This
may take place, for instance, when they reside in different
countries or provinces and they were never together during the
period of conception.[33] Or, the husband was in prison during
the period of conception, unless it appears that sexual union
took place through the violation of prison regulations.[34]

Here, during the period that Gerardo and Ma. Theresa were
living together in Fairview, Quezon City, Mario was living in
Loyola Heights which is also in Quezon City. Fairview and
Loyola Heights are only a scant four kilometers apart.
Not only did both Ma. Theresa and Mario reside in the same
city but also that no evidence at all was presented to disprove
personal access between them. Considering these
circumstances, the separation between Ma. Theresa and her
lawful husband, Mario, was certainly not such as to make it
physically impossible for them to engage in the marital act.
Sexual union between spouses is assumed. Evidence
sufficient to defeat the assumption should be presented by him
who asserts the contrary. There is no such evidence here.
Thus, the presumption of legitimacy in favor of Jose Gerardo,
as the issue of the marriage between Ma. Theresa and Mario,
stands.
Gerardo relies on Ma. Theresas statement in her answer [35] to
the petition for annulment of 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.
Gerardos argument is without merit.
First, the import of Ma. Theresas statement is that Jose
Gerardo is not her legitimate son with Mario but her illegitimate
son with Gerardo. This 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 Gerardos conception and birth.
Far from foreclosing the possibility of marital intimacy, their
proximity to each other only serves to reinforce such possibility.
Thus, the impossibility of physical access was never
established beyond reasonable doubt.
Third, to give credence to Ma. Theresas statement is to allow
her to arrogate unto herself a right exclusively lodged in the
husband, or in a proper case, his heirs.[37] A mother has no right
to disavow a child because maternity is never uncertain.[38]
Hence, Ma. Theresa is not permitted by law to question Jose
Gerardos legitimacy.
Finally, for reasons of public decency and morality, a married
woman cannot say that she had no intercourse with her
husband and that her offspring is illegitimate.[39] The
proscription is in consonance with the presumption in favor of

family solidarity. It also promotes the intention of the law to lean

toward the legitimacy of children.[40]
Gerardos insistence that the filiation of Jose Gerardo was
never an issue both in the trial court and in the appellate court
does not hold water. The fact that both Ma. Theresa and
Gerardo admitted and agreed that Jose Gerardo was born to
them was immaterial. That was, in effect, an agreement that
the child was illegitimate. If the Court were to validate that
stipulation, then it would be tantamount to allowing the mother
to make a declaration against the legitimacy of her child and
consenting to the denial of filiation of the child by persons other
than her husband. These are the very acts from which the law
seeks to shield the child.
Public policy demands that there be no compromise on the
status and filiation of a child.[41] Otherwise, the child will be at
the mercy of those who may be so minded to exploit his
defenselessness.
The reliance of Gerardo on Jose Gerardos birth certificate is
misplaced. It has no evidentiary value in this case because it
was not offered in evidence before the trial court. The rule is
that the court shall not consider any evidence which has not
been formally offered.[42]
Moreover, the law itself establishes the status of a child from
the moment of his birth.[43] Although a record of birth or birth
certificate may be used as primary evidence of the filiation of a
child,[44] as the status of a child is determined by the law itself,
proof of filiation is necessary only when the legitimacy of the
child is being questioned, or when the status of a child born
after 300 days following the termination of marriage is sought
to be established.[45]
Here, the status of Jose Gerardo as a legitimate child was not
under attack as it could not be contested collaterally and, even
then, only by the husband or, in extraordinary cases, his heirs.
Hence, the presentation of proof of legitimacy in this case was
improper and uncalled for.
In addition, a record of birth is merely prima facie evidence of
the facts contained therein.[46] As prima facie evidence, the
statements in the record of birth may be rebutted by more
preponderant evidence. It is not conclusive evidence with
respect to the truthfulness of the statements made therein by
the interested parties.[47] Between the certificate of birth which
is prima facie evidence of Jose Gerardos illegitimacy and the
quasi-conclusive presumption of law (rebuttable only by proof
beyond reasonable doubt) of his legitimacy, the latter shall
prevail. Not only does it bear more weight, it is also more
conducive to the best interests of the child and in consonance
with the purpose of the law.
It perplexes us why both Gerardo and Ma. Theresa would
doggedly press for Jose Gerardos illegitimacy while claiming
that they both had the childs interests at heart. The law, reason
and common sense dictate that a legitimate status is more
favorable to the child. In the eyes of the law, the legitimate child
enjoys a preferred and superior status. He is entitled to bear
the surnames of both his father and mother, full support and full

inheritance.[48] On the other hand, an illegitimate child is bound

to use the surname and be under the parental authority only of
his mother. He can claim support only from a more limited
group and his legitime is only half of that of his 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 persons surname or family name identifies the family to
which he belongs and is passed on from parent to child. [51]
Hence, Gerardo cannot impose his surname on Jose Gerardo
who is, in the eyes of the law, not related to him in any way.
The matter of changing Jose Gerardos name and effecting the
corrections of the entries in the civil register regarding his
paternity and filiation should be threshed out in a separate
proceeding.
In case of annulment or declaration of absolute nullity of
marriage, Article 49 of the Family Code grants visitation rights
to a parent who is deprived of custody of his children. Such
visitation rights flow from the natural right of both parent and
child to each others company. There being no such parentchild 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. Childs Welfare Paramount. In all questions regarding
the care, custody, education and property of the child, his
welfare shall be the paramount consideration.
Article 3 (1) of the United Nations Convention on the Rights of
a Child of which the Philippines is a signatory is similarly
emphatic:
Article 3

1. In all actions concerning children, whether undertaken by

public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.
The State as parens patriae affords special protection to
children from abuse, exploitation and other conditions
prejudicial to their development. It is mandated to provide
protection to those of tender years. [52] Through its laws, the
State safeguards them from every one, even their own parents,
to the end that their eventual development as responsible
citizens and members of society shall not be impeded,
distracted or impaired by family acrimony. This is especially
significant where, as in this case, the issue concerns their
filiation as it strikes at their very identity and lineage.
WHEREFORE, the petition is hereby DENIED. The September
14, 1995 and January 10, 1996 resolutions of the Court of
Appeals in CA-G.R. CV No. 40651 are hereby AFFIRMED.

THIRD DIVISION
[G.R. No. 162571. June 15, 2005]
ARNEL L. AGUSTIN, petitioner, vs. HON. COURT OF
APPEALS AND MINOR MARTIN JOSE PROLLAMANTE,
REPRESENTED BY HIS MOTHER/GUARDIAN FE ANGELA
PROLLAMANTE, respondents.
DECISION

Costs against petitioner.

CORONA, J.:

SO ORDERED.

At issue in this petition for certiorari [1] is whether or not the

Court of Appeals (CA) gravely erred in exercising its discretion,
amounting to lack or excess of jurisdiction, in issuing a
decision[2] and resolution[3] upholding the resolution and order
of the trial court,[4] which denied petitioners motion to dismiss
private respondents complaint for support and directed the
parties to submit themselves to deoxyribonucleic acid (DNA)
paternity testing.
Respondents Fe Angela and her son Martin Prollamante sued
Martins alleged biological father, petitioner Arnel L. Agustin, for
support and support pendente lite before the Regional Trial
Court (RTC) of Quezon City, Branch 106.[5]
In their complaint, respondents alleged that Arnel courted Fe in
1992, after which they entered into an intimate relationship.
Arnel supposedly impregnated Fe on her 34th birthday on
November 10, 1999. Despite Arnels insistence on abortion, Fe
decided otherwise and gave birth to their child out of wedlock,
Martin, on August 11, 2000 at the Capitol Medical Hospital in
Quezon City. The babys birth certificate was purportedly signed
by Arnel as the father. Arnel shouldered the pre-natal and
hospital expenses but later refused Fes repeated requests for
Martins support despite his adequate financial capacity and
even suggested to have the child committed for adoption. Arnel
also denied having fathered the child.
On January 19, 2001, while Fe was carrying five-month old
Martin at the Capitol Hills Golf and Country Club parking lot,
Arnel sped off in his van, with the open car door hitting Fes leg.
This incident was reported to the police. In July 2001, Fe was
diagnosed with leukemia and has, since then, been undergoing
chemotherapy. On March 5, 2002, Fe and Martin sued Arnel for
support.[6]
In his amended answer, Arnel denied having sired Martin
because his affair and intimacy with Fe had allegedly ended in
1998, long before Martins conception. He claimed that Fe had
at least one other secret lover. Arnel admitted that their

relationship started in 1993 but he never really fell in love with

(Fe) not only because (she) had at least one secret lover, a
certain Jun, but also because she proved to be scheming and
overly demanding and possessive. As a result, theirs was a
stormy on-and-off affair. What started as a romantic liaison
between two consenting adults eventually turned out to be a
case of fatal attraction where (Fe) became so obsessed with
(Arnel), to the point of even entertaining the idea of marrying
him, that she resorted to various devious ways and means to
alienate (him) from his wife and family. Unable to bear the
prospect of losing his wife and children, Arnel terminated the
affair although he still treated her as a friend such as by
referring potential customers to the car aircon repair shop [7]
where she worked. Later on, Arnel found out that Fe had
another erstwhile secret lover. In May 2000, Arnel and his
entire family went to the United States for a vacation. Upon
their return in June 2000, Arnel learned that Fe was telling
people that he had impregnated her. Arnel refused to
acknowledge the child as his because their last intimacy was
sometime in 1998.[8] Exasperated, Fe started calling Arnels wife
and family. On January 19, 2001, Fe followed Arnel to the
Capitol Hills Golf and Country Club parking lot to demand that
he acknowledge Martin as his child. According to Arnel, he
could not get through Fe and the discussion became so heated
that he had no alternative but to move on but without bumping
or hitting any part of her body.[9] Finally, Arnel claimed that the
signature and the community tax certificate (CTC) attributed to
him in the acknowledgment of Martins birth certificate were
falsified. The CTC erroneously reflected his marital status as
single when he was actually married and that his birth year was
1965 when it should have been 1964.[10]
In his pre-trial brief filed on May 17, 2002, Arnel vehemently
denied having sired Martin but expressed willingness to
consider any proposal to settle the case.[11]
On July 23, 2002, Fe and Martin moved for the issuance of an
order directing all the parties to submit themselves to DNA
paternity testing pursuant to Rule 28 of the Rules of Court.[12]
Arnel opposed said motion by invoking his constitutional right
against self-incrimination.[13] He also moved to dismiss the
complaint for lack of cause of action, considering that his
signature on the birth certificate was a forgery and that, under
the law, an illegitimate child is not entitled to support if not
recognized by the putative father.[14] In his motion, Arnel
manifested that he had filed criminal charges for falsification of
documents against Fe (I.S. Nos. 02-5723 and 02-7192) and a
petition for cancellation of his name appearing in Martins birth
certificate (docketed as Civil Case No. Q-02-46669). He
attached the certification of the Philippine National Police
Crime Laboratory that his signature in the birth certificate was
forged.
The trial court denied the motion to dismiss the complaint and
ordered the parties to submit themselves to DNA paternity
testing at the expense of the applicants. The Court of Appeals
affirmed the trial court.
Thus, this petition.

In a nutshell, petitioner raises two issues: (1) whether a

complaint for support can be converted to a petition for
recognition and (2) whether DNA paternity testing can be
ordered in a proceeding for support without violating petitioners
constitutional right to privacy and right against selfincrimination.[15]
The petition is without merit.
First of all, the trial court properly denied the petitioners motion
to dismiss because the private respondents complaint on its
face showed that they had a cause of action against the
petitioner. The elements of a cause of action are: (1) the
plaintiffs primary right and the defendants corresponding
primary duty, and (2) the delict or wrongful act or omission of
the defendant, by which the primary right and duty have been
violated. The cause of action is determined not by the prayer of
the complaint but by the facts alleged.[16]
In the complaint, private respondents alleged that Fe had
amorous relations with the petitioner, as a result of which she
gave birth to Martin out of wedlock. In his answer, petitioner
admitted that he had sexual relations with Fe but denied that
he fathered Martin, claiming that he had ended the relationship
long before the childs conception and birth. It is undisputed and
even admitted by the parties that there existed a sexual
relationship between Arnel and Fe. The only remaining
question is whether such sexual relationship produced the
child, Martin. If it did, as respondents have alleged, then Martin
should be supported by his father Arnel. If not, petitioner and
Martin are strangers to each other and Martin has no right to
demand and petitioner has no obligation to give support.
Preliminaries aside, we now tackle the main issues.
Petitioner refuses to recognize Martin as his own child and
denies the genuineness and authenticity of the childs birth
certificate which he purportedly signed as the father. He also
claims that the order and resolution of the trial court, as
affirmed by the Court of Appeals, effectively converted the
complaint for support to a petition for recognition, which is
supposedly proscribed by law. According to petitioner, Martin,
as an unrecognized child, has no right to ask for support and
must first establish his filiation in a separate suit under Article
283[17] in relation to Article 265 [18] of the Civil Code and Section
1, Rule 105[19] of the Rules of Court.
The petitioners contentions are without merit.
The assailed resolution and order did not convert the action for
support into one for recognition but merely allowed the
respondents to prove their cause of action against petitioner
who had been denying the authenticity of the documentary
evidence of acknowledgement. But even if the assailed
resolution and order effectively integrated an action to compel
recognition with an action for support, such was valid and in
accordance with jurisprudence. In Tayag v. Court of Appeals,[20]
we allowed the integration of an action to compel recognition
with an action to claim ones inheritance:

In Paulino, we held that an illegitimate child, to be entitled to

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

Although the instant case deals with support rather than

inheritance, as in Tayag, the basis or rationale for integrating
them remains the same. Whether or not respondent Martin is
entitled to support depends completely on the determination of
filiation. A separate action will only result in a multiplicity of
suits, given how intimately related the main issues in both
cases are. To paraphrase Tayag, the declaration of filiation is
entirely appropriate to these proceedings.
On the second issue, petitioner posits that DNA is not
recognized by this Court as a conclusive means of proving
paternity. He also contends that compulsory testing violates his
right to privacy and right against self-incrimination as
guaranteed under the 1987 Constitution. These contentions
have no merit.
Given that this is the very first time that the admissibility of
DNA testing as a means for determining paternity has actually
been the focal issue in a controversy, a brief historical sketch of
our past decisions featuring or mentioning DNA testing is called
for.
In the 1995 case of People v. Teehankee[21] where the
appellant was convicted of murder on the testimony of three
eyewitnesses, we stated as an obiter dictum that while
eyewitness identification is significant, it is not as accurate and
authoritative as the scientific forms of identification evidence
such as the fingerprint or the DNA test result (emphasis
supplied).
Our faith in DNA testing, however, was not quite so steadfast in
the previous decade. In Pe Lim v. Court of Appeals,[22]
promulgated in 1997, we cautioned against the use of DNA
because DNA, being a relatively new science, (had) not as yet
been accorded official recognition by our courts. Paternity
(would) still have to be resolved by such conventional evidence
as the relevant incriminating acts, verbal and written, by the
putative father.
In 2001, however, we opened the possibility of admitting DNA
as evidence of parentage, as enunciated in Tijing v. Court of
Appeals:[23]
A final note. Parentage will still be resolved using conventional
methods unless we adopt the modern and scientific ways
available. Fortunately, we have now the facility and expertise in
using DNA test for identification and parentage testing. The
University of the Philippines Natural Science Research Institute
(UP-NSRI) DNA Analysis Laboratory has now the capability to
conduct DNA typing using short tandem repeat (STR) analysis.
The analysis is based on the fact that the DNA of a
child/person has two (2) copies, one copy from the mother and
the other from the father. The DNA from the mother, the alleged
father and child are analyzed to establish parentage. Of
course, being a novel scientific technique, the use of DNA test
as evidence is still open to challenge. Eventually, as the
appropriate case comes, courts should not hesitate to rule on
the admissibility of DNA evidence. For it was said, that courts
should apply the results of science when competently obtained
in aid of situations presented, since to reject said result is to
deny progress.

The first real breakthrough of DNA as admissible and

authoritative evidence in Philippine jurisprudence came in 2002
with our en banc decision in People v. Vallejo[24] where the rape
and murder victims DNA samples from the bloodstained
clothes of the accused were admitted in evidence. We
reasoned that the purpose of DNA testing (was) to ascertain
whether an association exist(ed) between the evidence sample
and the reference sample. The samples collected (were)
subjected to various chemical processes to establish their
profile.
A year later, in People v. Janson,[25] we acquitted the accused
charged with rape for lack of evidence because doubts
persist(ed) in our mind as to who (were) the real malefactors.
Yes, a complex offense (had) been perpetrated but who (were)
the perpetrators? How we wish we had DNA or other scientific
evidence to still our doubts!
In 2004, in Tecson, et al. v. COMELEC[26] where the Court en
banc was faced with the issue of filiation of then presidential
candidate Fernando Poe Jr., we stated:
In case proof of filiation or paternity would be unlikely to
satisfactorily establish or would be difficult to obtain, DNA
testing, which examines genetic codes obtained from body
cells of the illegitimate child and any physical residue of the
long dead parent could be resorted to. A positive match would
clear up filiation or paternity. In Tijing vs. Court of Appeals, this
Court has acknowledged the strong weight of DNA testing
Moreover, in our en banc decision in People v. Yatar,[27] we
affirmed the conviction of the accused for rape with homicide,
the principal evidence for which included DNA test results. We
did a lengthy discussion of DNA, the process of DNA testing
and the reasons for its admissibility in the context of our own
Rules of Evidence:
Deoxyribonucleic Acid, or DNA, is a molecule that encodes the
genetic information in all living organisms. A persons DNA is
the same in each cell and it does not change throughout a
persons lifetime; the DNA in a persons blood is the same as
the DNA found in his saliva, sweat, bone, the root and shaft of
hair, earwax, mucus, urine, skin tissue, and vaginal and rectal
cells. Most importantly, because of polymorphisms in human
genetic structure, no two individuals have the same DNA, with
the notable exception of identical twins.
xxx xxx xxx
In assessing the probative value of DNA evidence, courts
should consider, inter alia, the following factors: how the
samples were collected, how they were handled, the possibility
of contamination of the samples, the procedure followed in
analyzing the samples, whether proper standards and
procedures were followed in conducting the tests, and the
qualification of the analyst who conducted the tests.
In the case at bar, Dr. Maria Corazon Abogado de Ungria was
duly qualified by the prosecution as an expert witness on DNA
print or identification techniques. Based on Dr. de Ungrias
testimony, it was determined that the gene type and DNA

profile of appellant are identical to that of the extracts subject of

examination. The blood sample taken from the appellant
showed that he was of the following gene types: vWA 15/19,
TH01 7/8, DHFRP29/10 and CSF1PO 10/11, which are
identical with semen taken from the victims vaginal canal.
Verily, a DNA match exists between the semen found in the
victim and the blood sample given by the appellant in open
court during the course of the trial.
Admittedly, we are just beginning to integrate these advances
in science and technology in the Philippine criminal justice
system, so we must be cautious as we traverse these relatively
uncharted waters. Fortunately, we can benefit from the wealth
of persuasive jurisprudence that has developed in other
jurisdictions. Specifically, the prevailing doctrine in the U.S. has
proven instructive.
In Daubert v. Merrell Dow (509 U.S. 579 (1993); 125 L. Ed. 2d
469) it was ruled that pertinent evidence based on scientifically
valid principles could be used as long as it was relevant and
reliable. Judges, under Daubert, were allowed greater
discretion over which testimony they would allow at trial,
including the introduction of new kinds of scientific techniques.
DNA typing is one such novel procedure.
Under Philippine law, evidence is relevant when it relates
directly to a fact in issue as to induce belief in its existence or
non-existence. Applying the Daubert test to the case at bar, the
DNA evidence obtained through PCR testing and utilizing STR
analysis, and which was appreciated by the court a quo is
relevant and reliable since it is reasonably based on
scientifically valid principles of human genetics and molecular
biology.
Significantly, we upheld the constitutionality of compulsory DNA
testing and the admissibility of the results thereof as evidence.
In that case, DNA samples from semen recovered from a rape
victims vagina were used to positively identify the accused Joel
Kawit Yatar as the rapist. Yatar claimed that the compulsory
extraction of his blood sample for DNA testing, as well as the
testing itself, violated his right against self-incrimination, as
embodied in both Sections 12 and 17 of Article III of the
Constitution. We addressed this as follows:
The contention is untenable. The kernel of the right is not
against all compulsion, but against testimonial compulsion. The
right against self-incrimination is simply against the legal
process of extracting from the lips of the accused an admission
of guilt. It does not apply where the evidence sought to be
excluded is not an incrimination but as part of object evidence.
Over the years, we have expressly excluded several kinds of
object evidence taken from the person of the accused from the
realm of self-incrimination. These include photographs, [28] hair,
[29]
and other bodily substances.[30] We have also declared as
constitutional several procedures performed on the accused
such as pregnancy tests for women accused of adultery,[31]
expulsion of morphine from ones mouth[32] and the tracing of
ones foot to determine its identity with bloody footprints. [33] In
Jimenez v. Caizares,[34] we even authorized the examination of
a womans genitalia, in an action for annulment filed by her

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

(b) An acknowledgment of paternity executed pursuant to

section one hundred eleven-k of the social services law or
section four thousand one hundred thirty-five-b of the public
health law may be rescinded by either signators filing of a
petition with the court to vacate the acknowledgment within the
earlier of sixty days of the date of signing the acknowledgment
or the date of an administrative or a judicial proceeding
(including a proceeding to establish a support order) relating to
the child in which either signator is a party. For purposes of this
section, the "date of an administrative or a judicial proceeding"
shall be the date by which the respondent is required to answer
the petition. After the expiration of sixty days of the execution of
the acknowledgment, either signator may challenge the
acknowledgment of paternity in court only on the basis of fraud,
duress, or material mistake of fact, with the burden of proof on
the party challenging the voluntary acknowledgment. Upon
receiving a partys challenge to an acknowledgment, the
court shall order genetic marker tests or DNA tests for the
determination of the childs paternity and shall make a
finding of paternity, if appropriate, in accordance with this
article. Neither signators legal obligations, including the
obligation for child support arising from the acknowledgment,
may be suspended during the challenge to the
acknowledgment except for good cause as the court may find.
If a party petitions to rescind an acknowledgment and if the
court determines that the alleged father is not the father of the
child, or if the court finds that an acknowledgment is invalid
because it was executed on the basis of fraud, duress, or
material mistake of fact, the court shall vacate the
acknowledgment of paternity and shall immediately provide a
copy of the order to the registrar of the district in which the
childs birth certificate is filed and also to the putative father
registry operated by the department of social services pursuant
to section three hundred seventy-two-c of the social services
law. In addition, if the mother of the child who is the subject of
the acknowledgment is in receipt of child support services
pursuant to title six-A of article three of the social services law,
the court shall immediately provide a copy of the order to the
child support enforcement unit of the social services district
that provides the mother with such services.
(c) A determination of paternity made by any other state,
whether established through the parents acknowledgment of
paternity or through an administrative or judicial process, must
be accorded full faith and credit, if and only if such
acknowledgment meets the requirements set forth in section
452(a)(7) of the social security act.
(emphasis supplied)
DNA testing also appears elsewhere in the New York Family
Court Act:[42]
532. Genetic marker and DNA tests; admissibility of records or
reports of test results; costs of tests.
a) The court shall advise the parties of their right to one or
more genetic marker tests or DNA tests and, on the courts own
motion or the motion of any party, shall order the mother, her
child and the alleged father to submit to one or more genetic
marker or DNA tests of a type generally acknowledged as

reliable by an accreditation body designated by the secretary of

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

or DNA test
provided in
in evidence
civil practice

(c) The cost of any test ordered pursuant to subdivision (a) of

this section shall be, in the first instance, paid by the moving
party. If the moving party is financially unable to pay such cost,
the court may direct any qualified public health officer to
conduct such test, if practicable; otherwise, the court may
direct payment from the funds of the appropriate local social
services district. In its order of disposition, however, the court
may direct that the cost of any such test be apportioned
between the parties according to their respective abilities to
pay or be assessed against the party who does not prevail on
the issue of paternity, unless such party is financially unable to
pay. (emphasis supplied)
In R.E. v. C.E.W.,[43] a decision of the Mississippi Supreme
Court, DNA tests were used to prove that H.W., previously
thought to be an offspring of the marriage between A.C.W. and
C.E.W., was actually the child of R.E. with whom C.E.W. had,
at the time of conception, maintained an adulterous
relationship.
In Erie County Department of Social Services on behalf of
Tiffany M.H. v. Greg G.,[44] the 4th Department of the New York
Supreme Courts Appellate Division allowed G.G., who had
been adjudicated as T.M.H.s father by default, to have the said
judgment vacated, even after six years, once he had shown
through a genetic marker test that he was not the childs father.
In this case, G.G. only requested the tests after the
Department of Social Services, six years after G.G. had been

adjudicated as T.M.H.s father, sought an increase in his

support obligation to her.
In Greco v. Coleman,[45] the Michigan Supreme Court while
ruling on the constitutionality of a provision of law allowing nonmodifiable support agreements pointed out that it was because
of the difficulty of determining paternity before the advent of
DNA testing that such support agreements were necessary:
As a result of DNA testing, the accuracy with which paternity
can be proven has increased significantly since the parties in
this lawsuit entered into their support agreement(current testing
methods can determine the probability of paternity to
99.999999% accuracy). However, at the time the parties before
us entered into the disputed agreement, proving paternity was
a very significant obstacle to an illegitimate child's access to
child support. The first reported results of modern DNA
paternity testing did not occur until 1985. ("In fact, since its first
reported results in 1985, DNA matching has progressed to
'general acceptance in less than a decade'"). Of course, while
prior blood-testing methods could exclude some males from
being the possible father of a child, those methods could not
affirmatively pinpoint a particular male as being the father.
Thus, when the settlement agreement between the present
parties was entered in 1980, establishing paternity was a far
more difficult ordeal than at present. Contested paternity
actions at that time were often no more than credibility
contests. Consequently, in every contested paternity action,
obtaining child support depended not merely on whether the
putative father was, in fact, the child's biological father, but
rather on whether the mother could prove to a court of law that
she was only sexually involved with one man--the putative
father. Allowing parties the option of entering into private
agreements in lieu of proving paternity eliminated the risk that
the mother would be unable meet her burden of proof.
It is worth noting that amendments to Michigans Paternity law
have included the use of DNA testing:[46]
722.716 Pretrial proceedings; blood or tissue typing
determinations as to mother, child, and alleged father; court
order; refusal to submit to typing or identification profiling;
qualifications of person conducting typing or identification
profiling; compensation of expert; result of typing or
identification profiling; filing summary report; objection;
admissibility; presumption; burden of proof; summary
disposition.
Sec. 6.
(1) In a proceeding under this act before trial, the court,
upon application made by or on behalf of either party, or
on its own motion, shall order that the mother, child, and
alleged father submit to blood or tissue typing
determinations, which may include, but are not limited to,
determinations of red cell antigens, red cell isoenzymes,
human leukocyte antigens, serum proteins, or DNA
identification profiling, to determine whether the alleged
father is likely to be, or is not, the father of the child. If the
court orders a blood or tissue typing or DNA identification
profiling to be conducted and a party refuses to submit to

the typing or DNA identification profiling, in addition to

any other remedies available, the court may do either of
the following:
(a) Enter a default judgment at the request of the
appropriate party.
(b) If a trial is held, allow the disclosure of the fact of the
refusal unless good cause is shown for not disclosing the
fact of refusal.
(2) A blood or tissue typing or DNA identification profiling shall
be conducted by a person accredited for paternity
determinations by a nationally recognized scientific
organization, including, but not limited to, the American
association of blood banks.
xxx xxx xxx
(5) If the probability of paternity determined by the
qualified person described in subsection (2) conducting
the blood or tissue typing or DNA identification profiling is
99% or higher, and the DNA identification profile and
summary report are admissible as provided in subsection
(4), paternity is presumed. If the results of the analysis of
genetic testing material from 2 or more persons indicate a
probability of paternity greater than 99%, the contracting
laboratory shall conduct additional genetic paternity
testing until all but 1 of the putative fathers is eliminated,
unless the dispute involves 2 or more putative fathers who
have identical DNA.
(6) Upon the establishment of the presumption of paternity as
provided in subsection (5), either party may move for summary
disposition under the court rules. this section does not
abrogate the right of either party to child support from the date
of birth of the child if applicable under section 7. (emphasis
supplied)
In Rafferty v. Perkins,[47] the Supreme Court of Mississippi ruled
that DNA test results showing paternity were sufficient to
overthrow the presumption of legitimacy of a child born during
the course of a marriage:
The presumption of legitimacy having been rebutted by the
results of the blood test eliminating Perkins as Justin's father,
even considering the evidence in the light most favorable to
Perkins, we find that no reasonable jury could find that Easter
is not Justin's father based upon the 99.94% probability of
paternity concluded by the DNA testing.
In S.J.F. and J.C.F. v. R.C.W.,[48] the North Dakota Supreme
Court upheld an order for genetic testing given by the Court of
Appeals, even after trial on the merits had concluded without
such order being given. Significantly, when J.C.F., the mother,
first filed the case for paternity and support with the District
Court, neither party requested genetic testing. It was only upon
appeal from dismissal of the case that the appellate court
remanded the case and ordered the testing, which the North
Dakota Supreme Court upheld.

The case of Kohl v. Amundson,[49] decided by the Supreme

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

The proper recourse of the aggrieved party from a decision of

the CA is a petition for review on certiorari under Rule 45 of the
Revised Rules of Court. On the other hand, if the error subject
of the recourse is one of jurisdiction, or the act complained of
was perpetrated by a quasi-judicial officer or agency with grave
abuse of discretion amounting to lack or excess of jurisdiction,
the proper remedy available to the aggrieved party is a petition
for certiorari under Rule 65 of the said Rules. (emphasis
supplied)
In the instant case, the petitioner has in no way shown any
arbitrariness, passion, prejudice or personal hostility that would
amount to grave abuse of discretion on the part of the Court of
Appeals. The respondent court acted entirely within its
jurisdiction in promulgating its decision and resolution, and any
error made would have only been an error in judgment. As we
have discussed, however, the decision of the respondent court,
being firmly anchored in law and jurisprudence, was correct.
Epilogue
For too long, illegitimate children have been marginalized by
fathers who choose to deny their existence. The growing
sophistication of DNA testing technology finally provides a
much needed equalizer for such ostracized and abandoned
progeny. We have long believed in the merits of DNA testing
and have repeatedly expressed as much in the past. This case
comes at a perfect time when DNA testing has finally evolved
into a dependable and authoritative form of evidence
gathering. We therefore take this opportunity to forcefully
reiterate our stand that DNA testing is a valid means of
determining paternity.
WHEREFORE, in view of the foregoing, the petition is hereby
DENIED. The Court of Appeals decision dated January 28,
2004 in CA-G.R. SP No. 80961 is hereby AFFIRMED in toto.

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 CARULASAN WANG also
known as JULIAN LIN WANG, to be amended/corrected as
JULIAN LIN WANG, JULIAN LIN WANG, duly represented
by his mother ANNA LISA WANG, petitioner, vs. CEBU
CITY CIVIL REGISTRAR, duly represented by the Registrar
OSCAR B. MOLO, respondent.
DECISION
TINGA, J.:
I will not blot out his name out of the book of life.
Revelation 3:5
On 22 September 2002, petitioner Julian Lin Carulasan Wang,
a minor, represented by his mother Anna Lisa Wang, filed a
petition dated 19 September 2002 for change of name and/or
correction/cancellation of entry in the Civil Registry of Julian Lin
Carulasan Wang. Petitioner sought to drop his middle name
and have his registered name changed from Julian Lin
Carulasan Wang to Julian Lin Wang.
The petition was docketed as Special Proceedings Case No.
11458 CEB and raffled to the Regional Trial Court (RTC) of
Cebu City, Branch 57.

Costs against petitioner.

The RTC established the following facts:
SO ORDERED.
Julian Lin Carulasan Wang was born in Cebu City on February
20, 1998 to parents Anna Lisa Wang and Sing-Foe Wang who
were then not yet married to each other. When his parents
subsequently got married on September 22, 1998, ...they
executed a deed of legitimation of their son so that the childs
name was changed from Julian Lin Carulasan to Julian Lin
Carulasan Wang.
The parents of Julian Lin Carulasan Wang plan to stay in
Singapore for a long time because they will let him study there
together with his sister named Wang Mei Jasmine who was
born in Singapore. Since in Singapore middle names or the
maiden surname of the mother are not carried in a persons
name, they anticipate that Julian Lin Carulasan Wang will be
discriminated against because of his current registered name
which carries a middle name. Julian and his sister might also
be asking whether they are brother and sister since they have
different surnames. Carulasan sounds funny in Singapores
Mandarin language since they do not have the letter R but if
there is, they pronounce it as L. It is for these reasons that the

name of Julian Lin Carulasan Wang is requested to be

changed to Julian Lin Wang.[1]
On 30 April 2003, the RTC rendered a decision denying the
petition.[2] The trial court found that the reason given for the
change of name sought in the petitionthat is, that petitioner
Julian may be discriminated against when studies in Singapore
because of his middle namedid not fall within the grounds
recognized by law. The trial court ruled that the change sought
is merely for the convenience of the child. Since the State has
an interest in the name of a person, names cannot be changed
to suit the convenience of the bearers. Under Article 174 of the
Family Code, legitimate children have the right to bear the
surnames of the father and the mother, and there is no reason
why this right should now be taken from petitioner Julian,
considering that he is still a minor. The trial court added that
when petitioner Julian reaches the age of majority, he could
then decide whether he will change his name by dropping his
middle name.[3]
Petitioner filed a motion for reconsideration of the decision but
this was denied in a resolution dated 20 May 2004. [4] The trial
court maintained that the Singaporean practice of not carrying
a middle name does not justify the dropping of the middle
name of a legitimate Filipino child who intends to study there.
The dropping of the middle name would be tantamount to
giving due recognition to or application of the laws of
Singapore instead of Philippine law which is controlling. That
the change of name would not prejudice public interest or
would not be for a fraudulent purpose would not suffice to grant
the petition if the reason for the change of name is itself not
reasonable.[5]
Petitioner then filed this Petition for Review on Certiorari
(Under Rule 45)[6] arguing that the trial court has decided a
question of substance not theretofore determined by the Court,
that is: whether or not dropping the middle name of a minor
child is contrary to Article 174 [7] of the Family Code. Petitioner
contends that [W]ith globalization and mixed marriages, there
is a need for the Supreme Court to rule on the matter of
dropping of family name for a child to adjust to his new
environment, for consistency and harmony among siblings,
taking into consideration the best interest of the child. [8] It is
argued that convenience of the child is a valid reason for
changing the name as long as it will not prejudice the State and
others. Petitioner points out that the middle name Carulasan
will cause him undue embarrassment and the difficulty in
writing or pronouncing it will be an obstacle to his social
acceptance and integration in the Singaporean community.
Petitioner also alleges that it is error for the trial court to have
denied the petition for change of name until he had reached
the age of majority for him to decide the name to use, contrary
to previous cases[9] decided by this Court that allowed a minor
to petition for change of name.[10]
The Court required the Office of the Solicitor General (OSG) to
comment on the petition. The OSG filed its 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 of their father and mother, and such right cannot be

denied by the mere expedient of dropping the same. According

to the OSG, there is also no showing that the dropping of the
middle name Carulasan is in the best interest of petitioner,
since mere convenience is not sufficient to support a petition
for change of name and/or cancellation of entry.[12] The OSG
also adds that the petitioner has not shown any compelling
reason to justify the change of name or the dropping of the
middle name, for that matter. Petitioners allegation that the
continued use of the middle name may result in confusion and
difficulty is allegedly more imaginary than real. The OSG
reiterates its argument raised before the trial court that the
dropping of the childs middle name could only trigger much
deeper inquiries regarding the true parentage of petitioner.
Hence, while petitioner Julian has a sister named Jasmine Wei
Wang, there is no confusion since both use the surname of
their father, Wang. Even assuming that it is customary in
Singapore to drop the middle name, it has also not been shown
that the use of such middle name is actually proscribed by
Singaporean law.[13]
We affirm the decision of the trial court. The petition should be
denied.
The Court has had occasion to express the view that the State
has an interest in the names borne by individuals and entities
for purposes of identification, and that a change of name is a
privilege and not a right, so that before a person can be
authorized to change his name given him either in his
certificate of birth or civil registry, he must show proper or
reasonable cause, or any compelling reason which may justify
such change. Otherwise, the request should be denied.[14]
The touchstone for the grant of a change of name is that there
be proper and reasonable cause for which the change is
sought.[15] To justify a request for change of name, petitioner
must show not only some proper or compelling reason
therefore but also that he will be prejudiced by the use of his
true and official name. Among the grounds for change of name
which have been held valid are: (a) when the name is
ridiculous, dishonorable or extremely difficult to write or
pronounce; (b) when the change results as a legal
consequence, as in legitimation; (c) when the change will avoid
confusion; (d) when one has continuously used and been
known since childhood by a Filipino name, and was unaware of
alien parentage; (e) a sincere desire to adopt a Filipino name
to erase signs of former alienage, all in good faith and without
prejudicing anybody; and (f) when the surname causes
embarrassment and there is no showing that the desired
change of name was for a fraudulent purpose or that the
change of name would prejudice public interest.[16]
In granting or denying petitions for change of name, the
question of proper and reasonable cause is left to the sound
discretion of the court. The evidence presented need only be
satisfactory to the court and not all the best evidence available.
What is involved is not a mere matter of allowance or
disallowance of the request, but a judicious evaluation of the
sufficiency and propriety of the justifications advanced in
support thereof, mindful of the consequent results in the event
of its grant and with the sole prerogative for making such
determination being lodged in the courts.[17]

The petition before us is unlike other petitions for change of

name, as it does not simply seek to change the name of the
minor petitioner and adopt another, but instead seeks to drop
the middle name altogether. Decided cases in this jurisdiction
involving petitions for change of name usually deal with
requests for change of surname. There are only a handful of
cases involving requests for change of the given name [18] and
none on requests for changing or dropping of the middle name.
Does the law allow one to drop the middle name from his
registered name? We have to answer in the negative.
A discussion on the legal significance of a persons name is
relevant at this point. We quote, thus:
For all practical and legal purposes, a man's name is the
designation by which he is known and called in the community
in which he lives and is best known. It is defined as the word or
combination of words by which a person is distinguished from
other individuals and, also, as the label or appellation which he
bears for the convenience of the world at large addressing him,
or in speaking of or dealing with him. Names are used merely
as one method of indicating the identity of persons; they are
descriptive of persons for identification, since, the identity is the
essential thing and it has frequently been held that, when
identity is certain, a variance in, or misspelling of, the name is
immaterial.
The names of individuals usually have two parts: the given
name or proper name, and the surname or family name. The
given or proper name is that which is given to the individual at
birth or baptism, to distinguish him from other individuals. The
name or family name is that which identifies the family to which
he belongs and is continued from parent to child. The given
name may be freely selected by the parents for the child; but
the surname to which the child is entitled is fixed by law.
A name is said to have the following characteristics: (1) It is
absolute, intended to protect the individual from being
confused with others. (2) It is obligatory in certain respects, for
nobody can be without a name. (3) It is fixed, unchangeable, or
immutable, at least at the start, and may be changed only for
good cause and by judicial proceedings. (4) It is outside the
commerce of man, and, therefore, inalienable and
intransmissible by act inter vivos or mortis causa. (5) It is
imprescriptible.[19]
This citation does not make any reference to middle names,
but this does not mean that middle names have no practical or
legal significance. Middle names serve to identify the maternal
lineage or filiation of a person as well as further distinguish him
from others who may have the same given name and surname
as he has.
Our laws on the use of surnames state that legitimate and
legitimated children shall principally use the surname of the
father.[20] The Family Code gives legitimate children the right to
bear the surnames of the father and the mother,[21] while
illegitimate children shall use the surname of their mother,
unless their father recognizes their filiation, in which case they
may bear the fathers surname.[22]

Applying these laws, an illegitimate child whose filiation is not

recognized by the father bears only a given name and his
mothers surname, and does not have a middle name. The
name of the unrecognized illegitimate child therefore identifies
him as such. It is only when the illegitimate child is legitimated
by the subsequent marriage of his parents or acknowledged by
the father in a public document or private handwritten
instrument that he bears both his mothers surname as his
middle name and his fathers surname as his surname,
reflecting his status as a legitimated child or an acknowledged
illegitimate child.
Accordingly, the registration in the civil registry of the birth of
such individuals requires that the middle name be indicated in
the certificate. The registered name of a legitimate, legitimated
and recognized illegitimate child thus contains a given or
proper name, a middle name, and a surname.
Petitioner theorizes that it would be for his best interest to drop
his middle name as this would help him to adjust more easily to
and integrate himself into Singaporean society. In support, he
cites Oshita v. 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 her name from Antonina
B. Oshita to Antonina Bartolome. The Court granted her
petition based on the following considerations: she had elected
Philippine citizenship upon reaching the age of majority; her
other siblings who had also elected Philippine citizenship have
been using their mothers surname; she was embarrassed to
bear a Japanese surname there still being ill feeling against the
Japanese due to the last World War; and there was no showing
that the change of name was motivated by a fraudulent
purpose or that it will prejudice public interest.
In Calderon, the Court allowed petitioner Gertrudes Josefina
del Prado, an illegitimate minor child acting through her mother
who filed the petition in her behalf, to change her name to
Gertudes Josefina Calderon, taking the surname of her
stepfather, Romeo C. Calderon, her mothers husband. The
Court held that a petition for change of name of an infant
should be granted where to do is clearly for the best interest of
the child. The Court took into consideration the opportunity
provided for the minor petitioner to eliminate the stigma of
illegitimacy which she would carry if she continued to use the
surname of her illegitimate father. The Court pronounced that
justice dictates that every person be allowed to avail of any
opportunity to improve his social standing as long as doing so
he does not cause prejudice or injury to the interests of the
State or of other people.
Petitioner cites Alfon v. Republic,[25] in arguing that although
Article 174 of the Family Code gives the legitimate child the
right to use the surnames of the father and the mother, it is not
mandatory such that the child could use only one family name,
even the family name of the mother. In Alfon, the petitioner
therein, the legitimate daughter of Filomeno Duterte and
Estrella Alfon, sought to change her name from Maria Estrella
Veronica Primitiva Duterte (her name as registered in the Local

Civil Registry) to Estrella S. Alfon (the name she had been

using since childhood, in her school records and in her voters
registration). The trial court denied her petition but this Court
overturned the denial, ruling that while Article 364 of the Civil
Code states that she, as a legitimate child, should principally
use the surname of her father, there is no legal obstacle for her
to choose to use the surname of herm other to which she is
entitled. In addition, the Court found that there was ample
justification to grant her petition, i.e., to avoid confusion.
Weighing petitioners reason of convenience for the change of
his name against the standards set in the cases he cites to
support his contention would show that his justification is
amorphous, to say the least, and could not warrant favorable
action on his petition.
The factual antecedents and unique circumstances of the cited
cases are not at all analogous to the case at bar. The instant
case is clearly distinguishable from the cases of Oshita and
Alfon, where the petitioners were already of age when they
filed their petitions for change of name. Being of age, they are
considered to have exercised their discretion and judgment,
fully knowing the effects of their decision to change their
surnames. It can also be unmistakably observed that the
reason for the grant of the petitions for change of name in
these two cases was the presence of reasonable or compelling
grounds therefore. The Court, in Oshita, recognized the
tangible animosity most Filipinos had during that time against
the Japanese as a result of World War II, in addition to the fact
of therein petitioners election of Philippine citizenship. In Alfon,
the Court granted the petition since the petitioner had been
known since childhood by a name different from her registered
name and she had not used her registered name in her school
records and voters registration records; thus, denying the
petition would only result to confusion.
Calderon, on the other hand, granted the petition for change of
name filed by a mother in behalf of her illegitimate minor child.
Petitioner cites this case to buttress his argument that he does
not have to reach the age of majority to petition for change of
name. However, it is manifest in Calderon that the Court, in
granting the petition for change of name, gave paramount
consideration to the best interests of the minor petitioner
therein.

WHEREFORE, in view of the foregoing, the Petition for Review

on Certiorari is DENIED.
SO ORDERED.

THIRD DIVISION

[G.R. No. 156343. October 18, 2004]

JOEY D. BRIONES, petitioner, vs.

MARICEL
P.
MIGUEL,
FRANCISCA P. MIGUEL and
LORETA
P.
MIGUEL,
respondents.
DECISION
PANGANIBAN, J.:

An illegitimate child is under the sole

parental authority of the mother. In the exercise
of that authority, she is entitled to keep the
child in her company. The Court will not deprive
her of custody, absent any imperative cause
showing her unfitness to exercise such
authority and care.
The Case
The Petition for Review before the Court
seeks to reverse and set aside the August 28,
2002 Decision and the December 11, 2002
Resolution of the Court of Appeals in CA-GR
SP No. 69400. The dispositive portion of the
assailed Decision reads as follows:
[1]

[2]

[3]

[4]

In the case at bar, the only reason advanced by petitioner for

the dropping his middle name is convenience. However, how
such change of name would make his integration into
Singaporean society easier and convenient is not clearly
established. That the continued use of his middle name would
cause confusion and difficulty does not constitute proper and
reasonable cause to drop it from his registered complete name.
In addition, petitioner is only a minor. Considering the nebulous
foundation on which his petition for change of name is based, it
is best that the matter of change of his name be left to his
judgment and discretion when he reaches the age of majority.
[26]
As he is of tender age, he may not yet understand and
appreciate the value of the change of his name and granting of
the same at this point may just prejudice him in his rights under
our laws.

WHEREFORE, the petition is hereby

DISMISSED. Respondent Loreta P. Miguel
shall have custody over the child Michael
Kevin Pineda until he reaches ten (10)
years of age. Once the said child is
beyond ten (10) years of age, the Court
allows him to choose which parent he
prefers to live with pursuant to Section 6,
Rule 99 of the 1997 Rules of Civil
Procedure, as amended. The petitioner,
Joey D. Briones, shall help support the
child, shall have visitorial rights at least

once a week, and may take the child out

upon the written consent of the mother.

receiving monthly pensions, assisted him

in taking care of the child.

Acting on the petitioners Urgent

Motion for a Hold Departure Order, and
finding it to be without merit, the same is
DENIED.[5]

On May 2, 2001, respondents Maricel

P. Miguel and Francisca P. Miguel came to
the house of the petitioner in Caloocan
City on the pretext that they were visiting
the minor child and requested that they be
allowed to bring the said child for
recreation at the SM Department store.
They promised him that they will bring him
back in the afternoon, to which the
petitioner
agreed.
However,
the
respondents did not bring him back as
promised by them.

The
challenged
reconsideration.

Resolution

denied

The Facts
The CA summarized the antecedents of
the case in this wise:
On March 5, 2002, petitioner Joey D.
Briones filed a Petition for Habeas Corpus
against respondents Maricel Pineda
Miguel and Francisca Pineda Miguel, to
obtain custody of his minor child Michael
Kevin Pineda.

The petitioner went several times to

respondent Maricel P. Miguel at Tanza,
Tuguegarao City but he was informed that
the child is with the latters mother at Batal
Heights, Santiago City. When he went
there, respondent Francisca P. Miguel told
him that Michael Kevin Pineda is with her
daughter at Tuguegarao City.

On April 25, 2002, the petitioner filed

an Amended Petition to include Loreta P.
Miguel, the mother of the minor, as one of
the respondents.

He sought the assistance of the police

and the Department of Social Welfare to
locate his son and to bring him back to
him, but all his efforts were futile.

A Writ of Habeas Corpus was issued

by this Court on March 11, 2002 ordering
the respondents to produce before this
Court the living body of the minor Michael
Kevin Pineda on March 21, 2002 at 2:00
oclock in the afternoon.

Hence, he was constrained to file a

Petition for Habeas Corpus with the
Regional Trial Court of Caloocan City
which was docketed as SPC No. 2711.
However, the said case was withdrawn exparte.

The petitioner alleges that the minor

Michael Kevin Pineda is his illegitimate
son with respondent Loreta P. Miguel. He
was born in Japan on September 17, 1996
as evidenced by his Birth Certificate. The
respondent Loreta P. Miguel is now
married to a Japanese national and is
presently residing in Japan.

The petitioner prays that the custody

of his son Michael Kevin Pineda be given
to him as his biological father and [as] he
has demonstrated his capability to support
and educate him.

The petitioner further alleges that on

November 4, 1998 he caused the minor
child to be brought to the Philippines so
that he could take care of him and send
him to school. In the school year 20002001, the petitioner enrolled him at the
nursery school of Blessed Angels L.A.
School, Inc. in Caloocan City, where he
finished the nursery course.
According
parents, who

to the petitioner, his

are both retired and

On May 6, 2002, the respondents filed

their Comment, in compliance with the
May 2, 2002 Resolution of this Court.
In their Comment, the respondent
Loreta P. Miguel denies the allegation of
the petitioner that he was the one who
brought their child to the Philippines and
stated that she was the one who brought
him here pursuant to their agreement.
Respondent Loreta P. Miguel likewise
denies
petitioners
allegation
that
respondents Maricel P. Miguel and
Francisca P. Miguel were the ones who
took the child from the petitioner or the
latters parents. She averred that she was

the one who took Michael Kevin Pineda

from the petitioner when she returned to
the Philippines and that the latter readily
agreed and consented.
Respondent Loreta P. Miguel alleges
that sometime in October 2001, the
petitioner was deported from Japan under
the assumed name of Renato Juanzon
when he was found to have violated or
committed an infraction of the laws of
Japan. She further stated that since the
time the petitioner arrived in the
Philippines, he has not been gainfully
employed. The custody of the child,
according to respondent Loreta P. Miguel
was entrusted to petitioners parents while
they were both working in Japan. She
added that even before the custody of the
child was given to the petitioners parents,
she has already been living separately
from the petitioner in Japan because the
latter was allegedly maintaining an illicit
affair with another woman until his
deportation.
She likewise stated in her Comment
that her marriage to a Japanese national is
for the purpose of availing of the privileges
of staying temporarily in Japan to pursue
her work so she could be able to send
money regularly to her son in the
Philippines. She further stated that she
has no intention of staying permanently in
Japan as she has been returning to the
Philippines every six (6) months or as
often as she could.
Respondent Loreta P. Miguel prays
that the custody of her minor child be
given to her and invokes Article 213,
Paragraph 2 of the Family Code and
Article 363 of the Civil Code of the
Philippines.

Ruling of the Court of Appeals

no compelling reason to separate the minor

from his mother. Petitioner, however, was
granted visitorial rights.
Hence, this Petition.

[6]

Issue
In
his
Memorandum,
petitioner
formulated the ultimate issue as follows: x x
x [w]hether or not [he], as the natural father,
may be denied the custody and parental care
of his own child in the absence of the mother
who is away.
[7]

The Courts Ruling

The Petition has no merit. However, the
assailed Decision should be modified in regard
to its erroneous application of Section 6 of Rule
99 of the Rules of Court.
Sole Issue
Who Should Have Custody of the Child?
Petitioner concedes that Respondent
Loreta has preferential right over their minor
child. He insists, however, that custody should
be awarded to him whenever she leaves for
Japan and during the period that she stays
there. In other words, he wants joint custody
over the minor, such that the mother would
have custody when she is in the country. But
when she is abroad, he -- as the biological
father -- should have custody.
According to petitioner, Loreta is not
always in the country. When she is abroad, she
cannot take care of their child. The undeniable
fact, he adds, is that she lives most of the time
in Japan, as evidenced by her Special Power
of Attorney dated May 28, 2001, granting to
her sister temporary custody over the minor.
[8]

Applying Article 213 (paragraph 2) of the

Family Code, the CA awarded the custody of
Michael Kevin Pineda Miguel to his mother,
Respondent
Loreta
P. Miguel.
While
acknowledging that petitioner truly loved and
cared for his son and considering the trouble
and expense he had spent in instituting the
legal action for custody, it nevertheless found

At present, however, the child is already

with his mother in Japan, where he is studying,
thus rendering petitioners argument moot.
While the Petition for Habeas Corpus was
pending before the CA, petitioner filed on July
30, 2002, an Urgent Motion for a Hold
[9]

Departure Order,
alleging therein that
respondents were preparing the travel papers
of the minor so the child could join his mother
and her Japanese husband. The CA denied the
Motion for lack of merit.
[10]

[11]

Having been born outside a valid marriage,

the minor is deemed an illegitimate child of
petitioner and Respondent Loreta. Article 176
of the Family Code of the Philippines explicitly
provides that illegitimate children shall use the
surname and shall be under the parental
authority of their mother, and shall be entitled
to support in conformity with this Code. This is
the rule regardless of whether the father admits
paternity.
[12]

[13]

Previously, under the provisions of the Civil

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

[15]

[16]

Parental authority over recognized natural

children who were under the age of majority
was vested in the father or the mother
recognizing them. If both acknowledge the
child, authority was to be exercised by the one
to whom it was awarded by the courts; if it was
awarded to both, the rule as to legitimate
children applied. In other words, in the latter
case, parental authority resided jointly in the
father and the mother.
[17]

[18]

The fine distinctions among the various

types of illegitimate children have been
eliminated in the Family Code. Now, there are
only two classes of children -- legitimate (and
those who, like the legally adopted, have the
rights of legitimate children) and illegitimate. All
children conceived and born outside a valid
marriage are illegitimate, unless the law itself
gives them legitimate status.
[19]

[20]

Article 54 of the Code provides these

exceptions: Children conceived or born before

the judgment of annulment or absolute nullity of

the marriage under Article 36 has become final
and executory shall be considered legitimate.
Children conceived or born of the subsequent
marriage under Article 53 shall likewise be
legitimate.
Under Article 176 of the Family Code, all
illegitimate children are generally placed under
one category, without any distinction between
natural and spurious. The concept of natural
child is important only for purposes of
legitimation.
Without
the
subsequent
marriage, a natural child remains an illegitimate
child.
[21]

[22]

Obviously, Michael is a natural (illegitimate,

under the Family Code) child, as there is
nothing in the records showing that his parents
were suffering from a legal impediment to
marry at the time of his birth. Both
acknowledge that Michael is their son. As
earlier explained and pursuant to Article 176,
parental authority over him resides in his
mother, Respondent Loreta, notwithstanding
his fathers recognition of him.
David v. Court of Appeals held that the
recognition of an illegitimate child by the father
could be a ground for ordering the latter to give
support to, but not custody of, the child. The
law explicitly confers to the mother sole
parental authority over an illegitimate child; it
follows that only if she defaults can the father
assume custody and authority over the minor.
Of course, the putative father may adopt his
own illegitimate child; in such a case, the
child shall be considered a legitimate child of
the adoptive parent.
[23]

[24]

[25]

There is thus no question that Respondent

Loreta, being the mother of and having sole
parental authority over the minor, is entitled to
have custody of him. She has the right to
keep him in her company. She cannot be
deprived of that right, and she may not even
renounce or transfer it except in the cases
authorized by law.
[26]

[27]

[28]

[29]

Not to be ignored in Article 213 of the

Family Code is the caveat that, generally, no
child under seven years of age shall be
separated from the mother, except when the
court finds cause to order otherwise.

Only the most compelling of reasons, such

as the mothers unfitness to exercise sole
parental authority, shall justify her deprivation
of parental authority and the award of custody
to someone else. In the past, the following
grounds have been considered ample
justification to deprive a mother of custody and
parental authority: neglect or abandonment,
unemployment,
immorality,
habitual
drunkenness, drug addiction, maltreatment of
the child, insanity, and affliction with a
communicable disease.

DELETED for lack of legal basis. Costs against

petitioner.
SO ORDERED.

[30]

[31]

[32]

Bearing in mind the welfare and the best

interest of the minor as the controlling factor,
we hold that the CA did not err in awarding
care, custody, and control of the child to
Respondent Loreta. There is no showing at all
that she is unfit to take charge of him.

[33]

We likewise affirm the visitorial right

granted by the CA to petitioner. In Silva v.
Court of Appeals, the Court sustained the
visitorial right of an illegitimate father over his
children in view of the constitutionally protected
inherent and natural right of parents over their
children.
Even when the parents are
estranged and their affection for each other is
lost, their attachment to and feeling for their
offspring remain unchanged. Neither the law
nor the courts allow this affinity to suffer,
absent any real, grave or imminent threat to the
well-being of the child.
[34]

Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
G.R. No. 206248

February 18, 2014

GRACE
M.
GRANDE,
vs.
PATRICIO T. ANTONIO, Respondent.

Petitioner,

DECISION
VELASCO, JR., J.:
Before this Court is a Petition for Review on Certiorari under
Rule 45, assailing the July 24, 2012 Decision1 and March 5,
2013 Resolution2 of the Court of Appeals (CA) in CA-G.R. CV
No. 96406.
As culled from the records, the facts of this case are:

[35]

However, the CA erroneously applied

Section 6 of Rule 99 of the Rules of Court. This
provision contemplates a situation in which the
parents of the minor are married to each other,
but are separated either by virtue of a decree
of legal separation or because they are living
separately de facto. In the present case, it has
been
established
that
petitioner
and
Respondent Loreta were never married.
Hence, that portion of the CA Decision allowing
the child to choose which parent to live with is
deleted, but without disregarding the obligation
of petitioner to support the child.
WHEREFORE, the Petition is DENIED and
the assailed Decision AFFIRMED with the
MODIFICATION that the disposition allowing
the child, upon reaching ten (10) years of age,
to choose which parent to live with is

Petitioner Grace Grande (Grande) and respondent Patricio

Antonio (Antonio) for a period of time lived together as
husband and wife, although Antonio was at that time already
married to someone else.3 Out of this illicit relationship, two
sons were born: Andre Lewis (on February 8, 1998) and Jerard
Patrick (on October 13, 1999).4 The children were not
expressly recognized by respondent as his own in the Record
of Births of the children in the Civil Registry. The parties
relationship, however, eventually turned sour, and Grande left
for the United States with her two children in May 2007. This
prompted respondent Antonio to file a Petition for Judicial
Approval of Recognition with Prayer to take Parental Authority,
Parental Physical Custody, Correction/Change of Surname of
Minors and for the Issuance of Writ of Preliminary Injunction
before the Regional Trial Court, Branch 8 of Aparri, Cagayan
(RTC), appending a notarized Deed of Voluntary Recognition
of Paternity of the children.5
On September 28, 2010, the RTC rendered a Decision in favor
of herein respondent Antonio, ruling that "[t]he evidence at
hand is overwhelming that the best interest of the children can
be promoted if they are under the sole parental authority and
physical custody of [respondent Antonio]." 6 Thus, the court a
quo decreed the following:
WHEREFORE, foregoing premises considered, the Court
hereby grants [Antonios] prayer for recognition and the same
is hereby judicially approved. x x x Consequently, the Court
forthwith issues the following Order granting the other reliefs
sought in the Petition, to wit:

a. Ordering the Office of the City Registrar of the City of Makati

to cause the entry of the name of [Antonio] as the father of the
aforementioned minors in their respective Certificate of Live
Birth and causing the correction/change and/or annotation of
the surnames of said minors in their Certificate of Live Birth
from Grande to Antonio;
b. Granting [Antonio] the right to jointly exercise Parental
Authority with [Grande] over the persons of their minor
children, Andre Lewis Grande and Jerard Patrick Grande;
c. Granting [Antonio] primary right and immediate custody over
the parties minor children Andre Lewis Grandre and Jerard
Patrick Grande who shall stay with [Antonios] residence in the
Philippines from Monday until Friday evening and to [Grandes]
custody from Saturday to Sunday evening;
d. Ordering [Grande] to immediately surrender the persons and
custody of minors Andre Lewis Grande and Jerard Patrick
Grande unto [Antonio] for the days covered by the Order;
e. Ordering parties to cease and desist from bringing the
aforenamed minors outside of the country, without the written
consent of the other and permission from the court.
f. Ordering parties to give and share the support of the minor
children Andre Lewis Grande and Jerard Patrick Grande in the
amount of P30,000 per month at the rate of 70% for [Antonio]
and 30% for [Grande].7 (Emphasis supplied.)
Aggrieved, petitioner Grande moved for reconsideration.
However, her motion was denied by the trial court in its
Resolution dated November 22, 20108 for being pro forma and
for lack of merit.
Petitioner Grande then filed an appeal with the CA attributing
grave error on the part of the RTC for allegedly ruling contrary
to the law and jurisprudence respecting the grant of sole
custody to the mother over her illegitimate children. 9 In
resolving the appeal, the appellate court modified in part the
Decision of the RTC. The dispositive portion of the CA Decision
reads:
WHEREFORE, the appeal is partly GRANTED. Accordingly,
the appealed Decision of the Regional Trial Court Branch 8,
Aparri Cagayan in SP Proc. Case No. 11-4492 is MODIFIED in
part and shall hereinafter read as follows:
a. The Offices of the Civil Registrar General and the City Civil
Registrar of Makati City are DIRECTED to enter the surname
Antonio as the surname of Jerard Patrick and Andre Lewis, in
their respective certificates of live birth, and record the same in
the Register of Births;
b. [Antonio] is ORDERED to deliver the minor children Jerard
Patrick and Andre Lewis to the custody of their mother herein
appellant, Grace Grande who by virtue hereof is hereby
awarded the full or sole custody of these minor children;
c. [Antonio] shall have visitorial rights at least twice a week,
and may only take the children out upon the written consent of
[Grande]; and

d. The parties are DIRECTED to give and share in support of

the minor children Jerard Patrick and Andre Lewis in the
amount of P30,000.00 per month at the rate of 70% for
[Antonio] and 30% for [Grande]. (Emphasis supplied.)
In ruling thus, the appellate court ratiocinated that
notwithstanding the fathers recognition of his children, the
mother cannot be deprived of her sole parental custody over
them absent the most compelling of reasons.10 Since
respondent Antonio failed to prove that petitioner Grande
committed any act that adversely affected the welfare of the
children or rendered her unsuitable to raise the minors, she
cannot be deprived of her sole parental custody over their
children.
The appellate court, however, maintained that the legal
consequence of the recognition made by respondent Antonio
that he is the father of the minors, taken in conjunction with the
universally protected "best-interest-of-the-child" clause,
compels the use by the children of the surname "ANTONIO."11
As to the issue of support, the CA held that the grant is legally
in order considering that not only did Antonio express his
willingness to give support, it is also a consequence of his
acknowledging the paternity of the minor children. 12 Lastly, the
CA ruled that there is no reason to deprive respondent Antonio
of his visitorial right especially in view of the constitutionally
inherent and natural right of parents over their children.13
Not satisfied with the CAs Decision, petitioner Grande
interposed a partial motion for reconsideration, particularly
assailing the order of the CA insofar as it decreed the change
of the minors surname to "Antonio." When her motion was
denied, petitioner came to this Court via the present petition. In
it, she posits that Article 176 of the Family Codeas amended
by Republic Act No. (RA) 9255, couched as it is in permissive
languagemay not be invoked by a father to compel the use
by his illegitimate children of his surname without the consent
of their mother.
We find the present petition impressed with merit.
The sole issue at hand is the right of a father to compel the use
of his surname by his illegitimate children upon his recognition
of their filiation. Central to the core issue is the application of
Art. 176 of the Family Code, originally phrased as follows:
Illegitimate children shall use the surname and shall be under
the parental authority of their mother, and shall be entitled to
support in conformity with this Code. The legitime of each
illegitimate child shall consist of one-half of the legitime of a
legitimate child. Except for this modification, all other provisions
in the Civil Code governing successional rights shall remain in
force.
This provision was later amended on March 19, 2004 by RA
925514 which now reads:
Art. 176. Illegitimate children shall use the surname and shall
be under the parental authority of their mother, and shall be
entitled to support in conformity with this Code. However,
illegitimate children may use the surname of their father if their

filiation has been expressly recognized by their father through

the record of birth appearing in the civil register, or when an
admission in a public document or private handwritten
instrument is made by the father. Provided, the father has the
right to institute an action before the regular courts to prove
non-filiation during his lifetime. The legitime of each illegitimate
child shall consist of one-half of the legitime of a legitimate
child. (Emphasis supplied.)
From the foregoing provisions, it is clear that the general rule is
that an illegitimate child shall use the surname of his or her
mother. The exception provided by RA 9255 is, in case his or
her filiation is expressly recognized by the father through the
record of birth appearing in the civil register or when an
admission in a public document or private handwritten
instrument is made by the father. In such a situation, the
illegitimate child may use the surname of the father.
In the case at bar, respondent filed a petition for judicial
approval of recognition of the filiation of the two children with
the prayer for the correction or change of the surname of the
minors from Grande to Antonio when a public document
acknowledged before a notary public under Sec. 19, Rule 132
of the Rules of Court15 is enough to establish the paternity of
his children. But he wanted more: a judicial conferment of
parental authority, parental custody, and an official declaration
of his childrens surname as Antonio.
Parental authority over minor children is lodged by Art. 176 on
the mother; hence, respondents prayer has no legal mooring.
Since parental authority is given to the mother, then custody
over the minor children also goes to the mother, unless she is
shown to be unfit.
Now comes the matter of the change of surname of the
illegitimate children. Is there a legal basis for the court a quo to
order the change of the surname to that of respondent?
Clearly, there is none. Otherwise, the order or ruling will
contravene the explicit and unequivocal provision of Art. 176 of
the Family Code, as amended by RA 9255.
Art. 176 gives illegitimate children the right to decide if they
want to use the surname of their father or not. It is not the
father (herein respondent) or the mother (herein petitioner) who
is granted by law the right to dictate the surname of their
illegitimate children.
Nothing is more settled than that when the law is clear and free
from ambiguity, it must be taken to mean what it says and it
must be given its literal meaning free from any interpretation. 16
Respondents position that the court can order the minors to
use his surname, therefore, has no legal basis.
On its face, Art. 176, as amended, is free from ambiguity. And
where there is no ambiguity, one must abide by its words. The
use of the word "may" in the provision readily shows that an
acknowledged illegitimate child is under no compulsion to use
the surname of his illegitimate father. The word "may" is
permissive and operates to confer discretion17 upon the
illegitimate children.

It is best to emphasize once again that the yardstick by which

policies affecting children are to be measured is their best
interest. On the matter of childrens surnames, this Court has,
time and again, rebuffed the idea that the use of the fathers
surname serves the best interest of the minor child. In Alfon v.
Republic,18 for instance, this Court allowed even a legitimate
child to continue using the surname of her mother rather than
that of her legitimate father as it serves her best interest and
there is no legal obstacle to prevent her from using the
surname of her mother to which she is entitled. In fact, in
Calderon v. Republic,19 this Court, upholding the best interest
of the child concerned, even allowed the use of a surname
different from the surnames of the childs father or mother.
Indeed, the rule regarding the use of a childs surname is
second only to the rule requiring that the child be placed in the
best possible situation considering his circumstances.
In Republic of the Philippines v. Capote,20 We gave due
deference to the choice of an illegitimate minor to use the
surname of his mother as it would best serve his interest, thus:
The foregoing discussion establishes the significant connection
of a persons name to his identity, his status in relation to his
parents and his successional rights as a legitimate or
illegitimate child. For sure, these matters should not be taken
lightly as to deprive those who may, in any way, be affected by
the right to present evidence in favor of or against such
change.
The law and facts obtaining here favor Giovannis petition.
Giovanni availed of the proper remedy, a petition for change of
name under Rule 103 of the Rules of Court, and complied with
all the procedural requirements. After hearing, the trial court
found (and the appellate court affirmed) that the evidence
presented during the hearing of Giovannis petition sufficiently
established that, under Art. 176 of the Civil Code, Giovanni is
entitled to change his name as he was never recognized by his
father while his mother has always recognized him as her child.
A change of name will erase the impression that he was ever
recognized by his father. It is also to his best interest as it will
facilitate his mothers intended petition to have him join her in
the United States. This Court will not stand in the way of the
reunification of mother and son. (Emphasis supplied.)
An argument, however, may be advanced advocating the
mandatory use of the fathers surname upon his recognition of
his illegitimate children, citing the Implementing Rules and
Regulations (IRR) of RA 9255,21 which states:
Rule 7. Requirements for the Child to Use the Surname of the
Father
7.1 For Births Not Yet Registered
7.1.1 The illegitimate child shall use the surname of the father if
a public document is executed by the father, either at the back
of the Certificate of Live Birth or in a separate document.
7.1.2 If admission of paternity is made through a private
instrument, the child shall use the surname of the father,

provided the registration is supported by the following

documents:
xxxx
7.2. For Births Previously Registered under the Surname of the
Mother
7.2.1 If filiation has been expressly recognized by the father,
the child shall use the surname of the father upon the
submission of the accomplished AUSF [Affidavit of Use of the
Surname of the Father].

After all, the power of administrative officials to promulgate

rules in the implementation of a statute is necessarily limited to
what is found in the legislative enactment itself. The
implementing rules and regulations of a law cannot extend the
law or expand its coverage, as the power to amend or repeal a
statute is vested in the Legislature. Thus, if a discrepancy
occurs between the basic law and an implementing rule or
regulation, it is the former that prevails, because the law cannot
be broadened by a mere administrative issuance an
administrative agency certainly cannot amend an act of
Congress.

7.3 Except in Item 7.2.1, the consent of the illegitimate child is

required if he/she has reached the age of majority. The consent
may be contained in a separate instrument duly notarized.

Thus, We can disregard contemporaneous construction where

there is no ambiguity in law and/or the construction is clearly
erroneous.23 What is more, this Court has the constitutional
prerogative and authority to strike down and declare as void
the rules of procedure of special courts and quasi- judicial
bodies24 when found contrary to statutes and/or the
Constitution.25 Section 5(5), Art. VIII of the Constitution
provides:

xxxx

Sec. 5. The Supreme Court shall have the following powers:

Rule 8. Effects of Recognition

xxxx

8.1 For Births Not Yet Registered

(5) Promulgate rules concerning the protection and

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

7.2.2 If filiation has not been expressly recognized by the

father, the child shall use the surname of the father upon
submission of a public document or a private handwritten
instrument supported by the documents listed in Rule 7.1.2.

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

name of the child in the Certificate of Live Birth. The Certificate
of Live Birth shall be recorded in the Register of Births.
xxxx
8.2 For Births Previously Registered under the Surname of the
Mother
8.2.1 If admission of paternity was made either at the back of
the Certificate of Live Birth or in a separate public document or
in a private handwritten document, the public document or
AUSF shall be recorded in the Register of Live Birth and the
Register of Births as follows:
"The surname of the child is hereby changed from (original
surname) to (new surname) pursuant to RA 9255."
The original surname of the child appearing in the Certificate of
Live Birth and Register of Births shall not be changed or
deleted.
8.2.2 If filiation was not expressly recognized at the time of
registration, the public document or AUSF shall be recorded in
the Register of Legal Instruments. Proper annotation shall be
made in the Certificate of Live Birth and the Register of Births
as follows:
"Acknowledged by (name of father) on (date). The surname of
the child is hereby changed from (original surname) on (date)
pursuant to RA 9255." (Emphasis supplied.)
Nonetheless, the hornbook rule is that an administrative
issuance cannot amend a legislative act. In MCC Industrial
Sales Corp. v. Ssangyong Corporation,22 We held:

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

provisions of the IRR of RA 9255 insofar as it provides the
mandatory use by illegitimate children of their fathers surname
upon the latters recognition of his paternity.
To conclude, the use of the word "shall" in the IRR of RA 9255
is of no moment. The clear, unambiguous, and unequivocal
use of "may" in Art. 176 rendering the use of an illegitimate
fathers surname discretionary controls, and illegitimate
children are given the choice on the surnames by which they
will be known.
At this juncture, We take note of the letters submitted by the
children, now aged thirteen (13) and fifteen (15) years old, to
this Court declaring their opposition to have their names
changed to "Antonio."26 However, since these letters were not
offered before and evaluated by the trial court, they do not
provide any evidentiary weight to sway this Court to rule for or
against petitioner.27 A proper inquiry into, and evaluation of the
evidence of, the children's choice of surname by the trial court
is necessary.
WHEREFORE, the instant petition is PARTIALLY GRANTED.
The July 24, 2012 Decision of the Court of Appeals in CA-G.R.

CV No. 96406 is MODIFIED, the dispositive portion of which

shall read:
WHEREFORE, the appeal is partly GRANTED. Accordingly.
the appealed Decision of the Regional Trial Court Branch 8,
Aparri Cagayan in SP Proc. Case No. 11-4492 is MODIFIED in
part and shall hereinafter read as follows:
a. [Antonio] is ORDERED to deliver the minor children Jerard
Patrick and Andre Lewis to the custody of their mother herein
appellant, Grace Grande who by virtue hereof is hereby
awarded the full or sole custody of these minor children;
b. [Antonio] shall have visitation rights 28 at least twice a week,
and may only take the children out upon the written consent of
[Grande]:
c. The parties are DIRECTED to give and share in support of
the minor children Jerard Patrick and Andre Lewis in the
amount of P30,000.00 per month at the rate of 70% for
[Antonio] and 30% for [Grande]; and
d. The case is REMANDED to the Regional Trial Court, Branch
8 of Aparri, Cagayan for the sole purpose of determining the
surname to be chosen by the children Jerard Patrick and Andre
Lewis.
Rule 7 and Rule 8 of the Office of the Civil Registrar General
Administrative Order No. 1, Series of 2004 are DISAPPROVED
and hereby declared NULL and VOID.
SO ORDERED.

Republic
SUPREME
Manila

of

the

Philippines
COURT

FIRST DIVISION
G.R. No. 157043

February 2, 2007

REPUBLIC
OF
THE
PHILIPPINES,
vs.
TRINIDAD R.A. CAPOTE, Respondent.

Petitioner,

DECISION
CORONA, J.:
This petition for review on certiorari1 seeks to set aside the
Court of Appeals (CA) decision2 dated January 13, 2003 in CAG.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. R481,3 Capote as Giovannis guardian ad litem averred:
xxx xxx xxx
1. [Respondent] is a Filipino citizen, of legal age, married, while
minor GIOVANNI N. GALLAMASO, is also a Filipino citizen,
sixteen (16) years old and both are residents of San Juan,
Southern Leyte where they can be served with summons and
other court processes;
2. [Respondent] was appointed guardian [ad litem] of minor
Giovanni N. Gallamaso by virtue of a court order in Special
[Proc.] No. R-459, dated [August 18, 1998] xxx xxx authorizing
her to file in court a petition for change of name of said minor in
accordance with the desire of his mother [who is residing and
working abroad];
3. Both [respondent] and minor have permanently resided in
San Juan, Southern Leyte, Philippines for more than fifteen
(15) years prior to the filing of this instant petition, the former
since 1970 while the latter since his birth [in 1982];
4. The minor was left under the care of [respondent] since he
was yet nine (9) years old up to the present;
5. Minor GIOVANNI N. GALLAMASO is the illegitimate natural
child of Corazon P. Nadores and Diosdado Gallamaso. [He]
was born on July 9, 1982 [,] prior to the effectivity of the New
Family Code and as such, his mother used the surname of the
natural father despite the absence of marriage between them;
and [Giovanni] has been known by that name since birth [as
per his birth certificate registered at the Local Civil Register of
San Juan, Southern Leyte];

6. The father, Diosdado Gallamaso, from the time [Giovanni]

was born and up to the present, failed to take up his
responsibilities [to him] on matters of financial, physical,
emotional and spiritual concerns. [Giovannis pleas] for
attention along that line [fell] on deaf ears xxx xxx xxx;
7. [Giovanni] is now fully aware of how he stands with his
father and he desires to have his surname changed to that of
his mothers surname;
8. [Giovannis] mother might eventually petition [him] to join her
in the United States and [his] continued use of the surname
Gallamaso, the surname of his natural father, may complicate
[his] status as natural child; and
9. The change of name [from] GIOVANNI N. GALLAMASO to
GIOVANNI NADORES will be for the benefit of the minor.
xxx xxx xxx4
Respondent prayed for an order directing the local civil
registrar to effect the change of name on Giovannis birth
certificate. Having found respondents petition sufficient in form
and substance, the trial court gave due course to the petition. 5
Publication of the petition in a newspaper of general circulation
in the province of Southern Leyte once a week for three
consecutive weeks was likewise ordered.6 The trial court also
directed that the local civil registrar be notified and that the
Office of the Solicitor General (OSG) be sent a copy of the
petition and order.7

"The subject of rights must have a fixed symbol for

individualization which serves to distinguish him from all others;
this symbol is his name."13 Understandably, therefore, no
person can change his name or surname without judicial
authority.14 This is a reasonable requirement for those seeking
such change because a persons name necessarily affects his
identity, interests and interactions. The State must be involved
in the process and decision to change the name of any of its
citizens.
The Rules of Court provides the requirements and procedure
for change of name. Here, the appropriate remedy is covered
by Rule 103,15 a separate and distinct proceeding from Rule
108 on mere cancellation and correction of entries in the civil
registry (usually dealing only with innocuous or clerical errors
thereon).16
The issue of non-joinder of alleged indispensable parties in the
action before the court a quo is intertwined with the nature of
the proceedings there. The point is whether the proceedings
were sufficiently adversarial.
Summary proceedings do not extensively address the issues of
a case since the reason for their conduct is expediency. This,
according to petitioner, is not sufficient to deal with substantial
or contentious issues allegedly resulting from a change of
name, meaning, legitimacy as well as successional rights. 17
Such issues are ventilated only in adversarial proceedings
wherein all interested parties are impleaded and due process is
observed.18

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.

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:

After the reception of evidence, the trial court rendered a

decision ordering the change of name from Giovanni N.
Gallamaso to Giovanni Nadores.8

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)

From this decision, petitioner Republic of the Philippines,

through the OSG, filed an appeal with a lone assignment of
error: the court a quo erred in granting the petition in a
summary proceeding.
Ruling that the proceedings were sufficiently adversarial in
nature as required, the CA affirmed the RTC decision ordering
the change of name.9
In this petition, the Republic contends that the CA erred in
affirming the trial courts decision which granted the petition for
change of name despite the non-joinder of indispensable
parties.10 Petitioner cites Republic of the Philippines v.
Labrador11 and claims that the purported parents and all other
persons who may be adversely affected by the childs change
of name should have been made respondents to make the
proceeding adversarial.12
We deny the petition.

Based on this provision, Giovanni should have carried his

mothers surname from birth. The records do not reveal any act
or intention on the part of Giovannis putative father to actually
recognize him. Meanwhile, according to the Family Code which
repealed, among others, Article 366 of the Civil Code:
Art. 176. Illegitimate children shall use the surname and
shall be under the parental authority of their mother, and shall
be entitled to support in conformity with this Code. xxx xxx xxx
(emphasis ours)
Our ruling in the recent case of In Re: Petition for Change of
Name and/or Correction/Cancellation of Entry in Civil Registry
of Julian Lin Carulasan Wang20 is enlightening:
Our laws on the use of surnames state that legitimate and
legitimated children shall principally use the surname of the
father. The Family Code gives legitimate children the right to
bear the surnames of the father and the mother, while
illegitimate children shall use the surname of their mother,

unless their father recognizes their filiation, in which case they

may bear the fathers surname.
Applying these laws, an illegitimate child whose filiation is
not recognized by the father bears only a given name and
his mother surname, and does not have a middle name.
The name of the unrecognized illegitimate child therefore
identifies him as such. It is only when the illegitimate child is
legitimated by the subsequent marriage of his parents or
acknowledged by the father in a public document or private
handwritten instrument that he bears both his mothers
surname as his middle name and his fathers surname as his
surname, reflecting his status as a legitimated child or an
acknowledged child.1awphi1.net21
The foregoing discussion establishes the significant connection
of a persons name to his identity, his status in relation to his
parents and his successional rights as a legitimate or
illegitimate child. For sure, these matters should not be taken
lightly as to deprive those who may, in any way, be affected by
the right to present evidence in favor of or against such
change.
The law and facts obtaining here favor Giovannis petition.
Giovanni availed of the proper remedy, a petition for change of
name under Rule 103 of the Rules of Court, and complied with
all the procedural requirements. After hearing, the trial court
found (and the appellate court affirmed) that the evidence
presented during the hearing of Giovannis petition sufficiently
established that, under Art. 176 of the Civil Code, Giovanni is
entitled to change his name as he was never recognized by his
father while his mother has always recognized him as her child.
A change of name will erase the impression that he was ever
recognized by his father. It is also to his best interest as it will
facilitate his mothers intended petition to have him join her in
the United States. This Court will not stand in the way of the
reunification of mother and son.
Moreover, it is noteworthy that the cases cited by petitioner 22 in
support of its position deal with cancellation or correction of
entries in the civil registry, a proceeding separate and distinct
from the special proceedings for change of name. Those cases
deal with the application and interpretation of Rule 108 of the
Rules of Court while this case was correctly filed under Rule
103. Thus, the cases cited by petitioner are irrelevant and have
no bearing on respondents case. While the OSG is correct in
its stance that the proceedings for change of name should be
adversarial, the OSG cannot void the proceedings in the trial
court on account of its own failure to participate therein. As the
CA correctly ruled:
The OSG is correct in stating that a petition for change of name
must be heard in an adversarial proceeding. Unlike petitions for
the cancellation or correction of clerical errors in entries in the
civil registry under Rule 108 of the Rules of Court, a petition for
change of name under Rule 103 cannot be decided through a
summary proceeding. There is no doubt that this petition does
not fall under Rule 108 for it is not alleged that the entry in the
civil registry suffers from clerical or typographical errors. The
relief sought clearly goes beyond correcting erroneous entries
in the civil registry, although by granting the petition, the result

is the same in that a corresponding change in the entry is also

required to reflect the change in name. In this regard,
[appellee] Capote complied with the requirement for an
adversarial proceeding by posting in a newspaper of
general circulation notice of the filing of the petition. The
lower court also furnished the OSG a copy thereof.
Despite the notice, no one came forward to oppose the
petition including the OSG. The fact that no one opposed
the petition did not deprive the court of its jurisdiction to
hear the same nor does it make the proceeding less
adversarial in nature. The lower court is still expected to
exercise its judgment to determine whether the petition is
meritorious or not and not merely accept as true the arguments
propounded. Considering that the OSG neither opposed the
petition nor the motion to present its evidence ex parte when it
had the opportunity to do so, it cannot now complain that the
proceedings in the lower court were not adversarial enough. 23
(emphasis supplied)
A proceeding is adversarial where the party seeking relief has
given legal warning to the other party and afforded the latter an
opportunity to contest it.24 Respondent gave notice of the
petition through publication as required by the rules. 25 With this,
all interested parties were deemed notified and the whole world
considered bound by the judgment therein. In addition, the trial
court gave due notice to the OSG by serving a copy of the
petition on it. Thus, all the requirements to make a proceeding
adversarial were satisfied when all interested parties, including
petitioner as represented by the OSG, were afforded the
opportunity to contest the petition.
WHEREFORE, the petition is hereby DENIED and the January
13, 2003 decision of the Court of Appeals in CA-G.R. CV No.
66128 AFFIRMED.
SO ORDERED.

Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC

G.R. No. 105619 December 12, 1995

MARIA
ROSARIO
DE
SANTOS,
petitioner,
vs.
HON. ADORACION G. ANGELES, JUDGE, REGIONAL
TRIAL COURT OF CALOOCAN CITY, BRANCH 121 and
CONCHITA TALAG DE SANTOS, respondents.

ROMERO, J.:
Can natural children by legal fiction be legitimized?
There being no explicit provision of law in point, the Court is
called upon to cast illumination in a gray area even as it fills up
unintentional interstices in the fabric of Civil Law with overlays
of philosophical, historical and sociological strands. For an
understanding of how the issue arose, we now proceed to
unravel the pertinent factual background.
On February 7, 1941, Dr. Antonio de Santos married Sofia
Bona, which union was blessed with a daughter, herein
petitioner Maria Rosario de Santos. After some time, their
relationship became strained to the breaking point. Thereafter,
Antonio fell in love with a fellow doctor, Conchita Talag, private
respondent herein. Antonio sought a formal dissolution of his
first marriage by obtaining a divorce decree from a Nevada
court in 1949.
Obviously aware that said decree was a worthless scrap of
paper in our jurisdiction which then, as now, did not recognize
divorces, Antonio proceeded to Tokyo, Japan in 1951 to marry
private respondent, with whom he had been cohabiting since
his de facto separation from Sofia. This union produced eleven
children. On March 30, 1967, Sofia died in Guatemala. Less
than a month later, on April 23, 1967, Antonio and private
respondent contracted a marriage in Tagaytay City celebrated
under Philippine laws. On March 8, 1981, Antonio died
intestate leaving properties with an estimated value of
P15,000,000.00.
On May 15, 1981, private respondent went to court 1 asking for
the issuance of letters of administration in her favor in
connection with the settlement of her late husband's estate.
She alleged, among other things, that the decedent was
survived by twelve legitimate heirs, namely, herself, their ten
surviving children, and petitioner. There being no opposition,
her petition was granted.

After six years of protracted intestate proceedings, however,

petitioner decided to intervene. Thus, in a motion she filed
sometime in November 1987, she argued inter alia that private
respondent's children were illegitimate. This was challenged by
private respondent although the latter admitted during the
hearing that all her children were born prior to Sofia's death in
1967.
On November 14, 1991, after approval of private respondent's
account of her administration, the court a quo passed upon
petitioner's motion. The court, citing the case of Francisco H.
Tongoy, et al. v. Court of Appeals, et al. (23 SCRA 99 [1983]),
declared private respondent's ten children legitimated and
thereupon instituted and declared them, along with petitioner
and private respondent, as the heirs of Antonio de Santos.
Petitioner sought a reconsideration of said order but this was
denied in the court's order dated January 9, 1992.
Hence, she filed the instant petition for certiorari on June 16,
1992, contending that since only natural children can be
legitimized, the trial court mistakenly declared as legitimated
her half brothers and sisters.
This argument is tenable.
Article 269 of the Civil Code expressly states:
Art. 269. Only natural children can be legitimated. Children
born outside wedlock of parents who, at the time of the
conception of the former, were not disqualified by any
impediment to marry each other, are natural.
In other words, a child's parents should not have been
disqualified to marry each other at the time of conception for
him to qualify as a "natural child."
In the case at bench, there is no question that all the children
born to private respondent and deceased Antonio de Santos
were conceived and born when the latter's valid marriage to
petitioner's mother was still subsisting. That private respondent
and the decedent were married abroad after the latter obtained
in Nevada, U.S.A. a decree of divorce from his legitimate wife
does not change this fact, for a divorce granted abroad was not
recognized in this jurisdiction at the time. Evidently, the
decedent was aware of this fact, which is why he had to have
the marriage solemnized in Tokyo, outside of the Philippines. It
may be added here that he was likewise aware of the nullity of
the Tokyo marriage for after his legitimate, though estranged
wife died, he hastily contracted another marriage with private
respondent, this time here in Tagaytay.
It must be noted that while Article 269, which falls under the
general heading of "Paternity and Filiation," specifically deals
with "Legitimated Children," Article 89, a provision subsumed
under the general title on "Marriage," deals principally with void
and voidable marriages and secondarily, on the effects of said
marriages on their offspring. It creates another category of
illegitimate children, those who are "conceived or born of
marriages which are void from the beginning," but because
there has been a semblance of marriage, they are classified as
"acknowledged natural children" and, accordingly, enjoy the

same status, rights and obligations as such kind of children. In

the case at bench, the marriage under question is considered
"void from the beginning" because bigamous, contracted when
a prior valid marriage was still subsisting. It follows that the
children begotten of such union cannot be considered natural
children proper for at the time of their conception, their parents
were disqualified from marrying each other due to the
impediment of a prior subsisting marriage.
What term should then be coined to distinguish them from
natural children proper (those "born outside of wedlock of
parents who, at the time of the conception of the former, were
not disqualified by any impediment to marry each other")? A
legal fiction had to be resorted to, that device contrived by law
to simulate a fact or condition which, strictly and technically
speaking, is not what it purports to be. In this case, the term
"natural children by legal fiction" was invented, thus giving rise
to another category of illegitimate children, clearly not to be
confused with "natural children" as defined under Art. 269 but
by fiction of law to be equated with acknowledged natural
children and, consequently, enjoying the status, rights and
obligations of the latter. Does this cluster of rights include the
right to be legitimated?
Under the Civil Code, there exists a hierarchy of children
classified on the basis of rights granted by law, which must be
preserved by strictly construing the substantive provisions of
the law in force.
Under the prevailing Civil Code (which may be considered "old"
in light of the new provisions of the Family Code on "Persons"),
much emphasis is laid on the classification of children vis-a-vis
their parents, and the corresponding rights they are entitled to
under the law. Thus, the title on "Paternity and Filiation"
devotes two whole chapters to legitimate children alone, and
one chapter on those deemed by law to be possessed of the
rights of the former, such as legitimated children, because of
their compliance with certain requisites laid down by law; two
other chapters deal with illegitimate children composed of
recognized natural children, and those other than natural, or
spurious, whether recognized or not. The well-ordered
delineation of such distinctions among these groups
demonstrates a clear intent on the part of the framers of the
Civil Code to compartmentalize and separate one from the
other, for legitimacy/illegitimacy determines the substantive
rights accruing to the different categories of children.
It must be noted that before said Code was enacted, other
classes of illegitimate children were recognized, such as,
"manceres" or the offspring of prostitutes and the "sacrilegious"
or children of those who had received Holy Orders.
Subsequently, the Civil Code, in an effort to keep in step with
modern times, limited illegitimate filiation to those which are
incestuous, adulterous and illicit.
At the core of the institution of legitimacy held sacrosanct by
Spanish tradition and culture, lies the "inviolable social
institution" known as marriage. This union, absent any formal
or substantial defect or of any vice of consent, is virtually
adamantine. On the whole, the status of a marriage determines
in large part the filiation of its resultant issue. Thus, a child born

within a valid marriage is legitimate, while one born outside of

wedlock is illegitimate. If, however, the latter's parents were, at
the time of the child's conception, not legally barred from
marrying each other and subsequently do so, the child's
filiation improves as he becomes legitimized and the
"legitimated" child eventually enjoys all the privileges and rights
associated with legitimacy. Without such marriage, the natural
child's rights depend on whether he is acknowledged or
recognized by his parents, but he does not rise to the level of a
legitimate child in the manner that the legitimated child does.
A child conceived or born of a marriage which is void ab initio
or one which is declared a nullity is illegitimate since there is no
marriage to speak of, but it is the law which accords him the
rights of an acknowledged natural child.
Finally, there are illegitimate children who are referred to as
"spurious" or derisively denominated as "bastards" because of
their doubtful origins. There is no marriage valid or
otherwise which would give any semblance of legality to the
child's existence. Nothing links child to parent aside from the
information appearing in the birth certificate. When such child
is recognized by one or both parents, he acquires certain rights
nowhere approaching those of his legitimate counterparts.
The Civil Code provides three rights which, in varying degrees,
are enjoyed by children, depending on their filiation: use of
surname, succession, and support.
Legitimate children and legitimated children are entitled to all
three. 2 Thus, they "shall principally use the surname of the
father," 3 and shall be entitled to support from their legitimate
ascendants and descendants, 4 as well as to a legitime
consisting of one-half of the hereditary estate of both parents, 5
and to other successional rights, such as the right of
representation. "These rights as effects of legitimacy cannot be
renounced." 6
Natural children recognized by both parents and natural
children by legal fiction shall principally use the surname of the
father. 7 If a natural child is recognized by only one parent, the
child shall follow the surname of such recognizing parent. 8
Both types of children are entitled to receive support from the
parent recognizing them. 9 They also cannot be deprived of
their legitime equivalent to one-half of that pertaining to each of
the legitimate children or descendants of the recognizing
parent, to be taken from the free disposable portion of the
latter's estate. 10
Recognized illegitimate children other than natural, or spurious
issues, are, in their minority, under the parental authority of
their mothers and, naturally, take the latter's surname. 11 The
only support which they are entitled to is from the recognizing
parent, 12 and their legitime, also to be taken from the free
portion, consists of four-fifths of the legitime of an
acknowledged natural child or two-fifths that of each legitimate
child. 13
It must also be observed that while the legitime of a legitimate
child is fairly secured by law, 14 the legitime of any recognized
illegitimate child, taken as it is from the free portion of the

hereditary estate which the child shares with the surviving

spouse, may be reduced if it should exceed said portion. 15
Unrecognized illegitimate children are not entitled to any of the
rights above mentioned. 16
These distinctions gain more relevance if we were to consider
that while a legitimated child may enjoy the same successional
rights granted to legitimate children, a natural child by legal
fiction cannot rise beyond that to which an acknowledged
natural child is entitled, insofar as his hereditary rights are
concerned.
It is thus incongruous to conclude, as private respondent
maintains, that petitioner's half siblings can rise to her level by
the fact of being legitimized, for two reasons: First, they failed
to meet the most important requisite of legitimation, that is, that
they be natural children within the meaning of Article 269;
second, natural children by legal fiction cannot demand that
they be legitimized simply because it is one of the rights
enjoyed by acknowledged natural children.
It may be argued that legitimation is a right vouchsafed to
acknowledged natural children and, therefore, by the same
token, to natural children by legal fiction. This conclusion is
arrived at through a syllogism as simple as it is deceptive,
which runs as follows:
The respondent's children are natural children by legal fiction.
Therefore, they have the same status, rights and obligations as
acknowledged natural children.
Acknowledged natural children have the right to be legitimated.
Ergo, respondent's children have the right to be legitimated (as
in fact they were "deemed legitimated" by the subsequent valid
marriage of their parents in the Philippines in 1967).
The above line of reasoning follows the Euclidian geometric
proposition that things equal to the same thing are equal to
each other. This may hold true in the realm of instructional, as
opposed to descriptive science, where the former calls for the
application of absolute, mathematical rules with precision but
not to the latter, particularly those which deal with the social
sciences where human relationships are central to a study
whose main concern is not to leave out anything of
significance. The former deals with inanimate things, those
which a scientist has described as the "dead aspect of nature,"
excluding all factors regarded as superfluous to obtaining
absolute results and nothing more. It does not concern itself so
much with the whole truth as with those aspects or parts only
through which the inexorable result can be obtained. To apply
the strict rules of syllogism, where the basic premise is
defective, to the arena of paternity and filiation, especially in
the determination of the status and rights of the different kinds
of illegitimate children vis-a-vis the legitimate ones, is bound to
spawn mischief and results never intended by the framers of
the provisions of the law under review.
Pursued to its logical, undeviating conclusion, it may eventually
be postulated that "adulterous children shall enjoy the status,

rights and obligations of legitimate children," a doctrine which

no moral philosophy under our social and cultural milieu can
countenance.
This conclusion not only presumes that children other than
those who are "natural" can be legitimized in the first place, but
also grants acknowledged natural children (and, consequently,
natural children by legal fiction) a "right" to be legitimized when
no such right exists. Legitimation is not a "right" which is
demandable by a child. It is a privilege, available only to
natural children proper, as defined under Art. 269. Although
natural children by legal fiction have the same rights as
acknowledged natural children, it is a quantum leap in the
syllogism to conclude that, therefore, they likewise have the
right to be legitimated, which is not necessarily so, especially,
as in this case, when the legally existing marriage between the
children's father and his estranged first wife effectively barred a
"subsequent marriage" between their parents.
The question that must be confronted next is: How are the
offspring of the second union affected by the first wife's death
and the ensuing celebration of a valid marriage between her
widower and his ostensible second wife?
Natural children by legal fiction cannot be legitimized in this
fashion. Our archaic law on family relations, patterned as it is
after Spanish Civil Law, frowns upon illegal relations such that
the benefits of legitimation under Chapter 3 of Title VIII do not
extend, nor were they intended to extend, to natural children by
legal fiction. Article 269 itself clearly limits the privilege of
legitimation to natural children as defined thereunder. There
was, therefore, from the outset, an intent to exclude children
conceived or born out of illicit relations from the purview of the
law.
Another point to be considered is that although natural children
can be legitimized, and natural children by legal fiction enjoy
the rights of acknowledged natural children, this does not
necessarily lead to the conclusion that natural children by legal
fiction can likewise be legitimized. As has been pointed out,
much more is involved here than the mere privilege to be
legitimized. The rights of other children, like the petitioner in the
case at bench, may be adversely affected as her testamentary
share may well be reduced in the event that her ten surviving
half siblings should be placed on par with her, when each of
them is rightfully entitled to only half of her share.
The provisions of law invoked by private respondent are
couched in simple and unmistakable language, not at all
subject to interpretation, and they all point to the correctness of
petitioner's claim. If it should be asserted that we now trench
on a gray area of law that calls for interpretation, or a lacuna
that cries for filling up, then we have to pierce the shroud
unintentionally created by the letter of the law and expose its
spirit as evincing intent, in this case one which decidedly favors
legitimacy over illegitimacy. The hierarchy of children so
painstakingly erected by law and the corresponding gradation
of their rights may conceivably be shattered by elevating
natural children by legal fiction who are incontestably
illegitimate children to the level of natural children proper,

whose filiation would otherwise be legitimate had their parents

blessed their union with a valid marriage.
Finally, attention must be drawn to the fact that this case has
been decided under the provisions of the Civil Code, not the
Family Code which now recognizes only two classes of
children: legitimate and illegitimate. "Natural children by legal
fiction" are nothing if not pure fiction.
WHEREFORE, the instant petition is hereby GRANTED. The
assailed orders of the court a quo dated November 14, 1991
and January 9, 1992, are NULLIFIED and SET ASIDE.
Petitioner Maria Rosario de Santos is hereby declared the
SOLE LEGITIMATE CHILD of the decedent Antonio de Santos
and, as such, entitled to all the rights accorded to her by law.
SO ORDERED.

Republic
SUPREME
Manila

of

the

Philippines
COURT

SECOND DIVISION

G.R. No. 92326 January 24, 1992

REPUBLIC
OF
THE
PHILIPPINES,
vs.
COURT OF APPEALS and ZENAIDA
respondents.

petitioner,
C.

BOBILES,

The Solicitor General for petitioner.

Mariano B. Miranda for private respondent.

REGALADO, J.:
Dissatisfied with the decision of respondent Court of Appeals
promulgated on February 20, 1990 1 which affirmed in toto the
decision of Branch 2 of the Regional Trial Court of Legaspi City
2
granting the petition of herein private respondent to adopt the
minor Jason Condat, petitioner seeks the reversal thereof in
the present petition for review on certiorari.
On February 2, 1988, Zenaida Corteza Bobiles filed a petition
to adopt Jason Condat, then six (6) years old and who had
been living with her family since he was four (4) months old,
before the Regional Trial Court of Legaspi City, docketed
therein as Special Proceeding No. 1386. 3
The court a quo, finding the petition to be sufficient in form and
substance, issued an order dated February 15, 1988 setting
the petition for hearing on March 28, 1988. 4 The order was
duly published, with copies thereof seasonably served on the
Solicitor General; Assistant Provincial Fiscal Mediavillo, Jr. of
Albay; Salvador Condat, father of the child; and the social
worker assigned to the court. A copy of said order was posted
on the bulletin board of the court and in the other places it had
required for that purpose. Nobody appeared to oppose the
petition. 5
Compliance with the jurisdictional requirements having been
proved at the hearing, the testimonies of herein private
respondent, together with that of her husband, Dioscoro
Bobiles, and one Ma. Luz Salameno of the Department of
Social Welfare and Development were taken and admitted in
the proceedings.
On March 20, 1988, the trial court rendered judgment
disposing as follows:

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

JASON CONDAT, be freed from all legal obligations of
obedience and maintenance with respect to his natural
parents, and be, to all intents and purposes, the child of the
spouses Dioscoro and Zenaida Bobiles, and the surname of
the child be changed to "Bobiles" which is the surname of the
petitioner.
Furnish the Office of the Solicitor General, Manila, the
Department of Social Welfare and Development, Regional
Office, Region V, Legaspi City, and the Local Civil Registrar of
Tiwi, Albay, with copies of this decision. 6
Herein petitioner appealed to the Court of Appeals which, as
earlier stated, affirmed the aforesaid decision of the court
below. Hence, this present petition with the following
assignment of errors:
1. The Honorable Court of Appeals erred in ruling that the
Family Code cannot be applied retroactively to the petition for
adoption filed by Zenaida C. Bobiles; and
2 The Honorable Court of Appeals erred in affirming the trial
court's decision which granted the petition to adopt Jason
Condat in favor of spouses Dioscoro Bobiles and Zenaida C.
Bobiles. 7
The petition for adoption was filed by private respondent
Zenaida C. Bobiles on February 2, 1988, when the law
applicable was Presidential Decree No. 603, the Child and
Youth Welfare Code. Under said code, a petition for adoption
may be filed by either of the spouses or by both of them.
However, after the trial court rendered its decision and while
the case was pending on appeal in the Court of Appeals,
Executive Order No. 209, the Family Code, took effect on
August 3, 1988. Under the said new law, joint adoption by
husband and wife is mandatory.
On the foregoing consideration, petitioner contends that the
petition for adoption should be dismissed outright for it was
filed solely by private respondent without joining her husband,
in violation of Article 185 of the Family Code which requires
joint adoption by the spouses. It argues that the Family Code
must be applied retroactively to the petition filed by Mrs.
Bobiles, as the latter did not acquire a vested right to adopt
Jason Condat by the mere filing of her petition for adoption. We
are not persuaded.
Preliminarily, we observe that petitioner's theory implies that
the non-inclusion of Dioscoro Bobiles as a co-petitioner is a
jurisdictional defect, hence its prayer for an outright dismissal
on that score. It could not be taking exception only on the
ground of non-joinder since petitioner must be aware that nonjoinder is not a ground for the dismissal of an action or a
special proceeding. 8 We further apprehend that this objection
has been raised for the first time on appeal in respondent
court. Nonetheless, we shall clarify petitioner's misgivings as
postulated in its aforestated assignment of errors.
Article 246 of the Family Code provides for retroactive effect of
appropriate relevant provisions thereof, subject to the

qualification that such retrospective application will not

prejudice or impair vested or acquired rights in accordance with
the Civil Code or other laws.
A vested right is one whose existence, effectivity and extent
does not depend upon events foreign to the will of the holder. 9
The term expresses the concept of present fixed interest which
in right reason and natural justice should be protected against
arbitrary State action, or an innately just and imperative right
which enlightened free society, sensitive to inherent and
irrefragable individual rights, cannot deny. 10 Vested rights
include not only legal or equitable title to the enforcement of a
demand, but also an exemption from new obligations created
after the right has vested. 11
Under the Child and Youth Welfare Code, private respondent
had the right to file a petition for adoption by herself, without
joining her husband therein. When Mrs. Bobiles filed her
petition, she was exercising her explicit and unconditional right
under said law. Upon her filing thereof, her right to file such
petition alone and to have the same proceed to final
adjudication, in accordance with the law in force at the time,
was already vested and cannot be prejudiced or impaired by
the enactment of a new law.
When private respondent filed her petition in Special
Proceeding No. 1386, the trial court acquired jurisdiction
thereover in accordance with the governing law. Jurisdiction
being a matter of substantive law, the established rule is that
the jurisdiction of the court is determined by the statute in force
at the time of the commencement of the action. 12 We do not
find in the present case such facts as would constitute it as an
exception to the rule.
The first error assigned by petitioner warrants a review of
applicable local and foreign jurisprudence. For that purpose,
we start with the premise that Article 185 of the Family Code is
remedial in nature. Procedural statutes are ordinarily accorded
a retrospective construction in the sense that they may be
applied to pending actions and proceedings, as well as to
future actions. However, they will not be so applied as to defeat
procedural steps completed before their enactment. 13
Procedural matters are governed by the law in force when they
arise, and procedural statutes are generally retroactive in that
they apply to pending proceedings and are not confined to
those begun after their enactment although, with respect to
such pending proceedings, they affect only procedural steps
taken after their enactment. 14
The rule that a statutory change in matters of procedure will
affect pending actions and proceedings, unless the language of
the act excludes them from its operation, is not so extensive
that it may be used to validate or invalidate proceedings taken
before it goes into effect, since procedure must be governed by
the law regulating it at the time the question of procedure
arises. 15
The jurisdictional, as distinguished from the purely procedural,
aspect of a case is substantive in nature and is subject to a
more stringent rule. A petition cannot be dismissed by reason

of failure to comply with a law which was not yet in force and
effect at the time. As long as the petition for adoption was
sufficient in form and substance in accordance with the law in
governance at the time it was filed, the court acquires
jurisdiction and retains it until it fully disposes of the case. 16 To
repeat, the jurisdiction of the court is determined by the statute
in force at the time of the commencement of the action. Such
jurisdiction of a court, whether in criminal or civil cases, once it
attaches cannot be ousted by subsequent happenings or
events, although of a character which would have prevented
jurisdiction from attaching in the first instance. 17

The foregoing declarations, and his subsequent confirmatory

testimony in open court, are sufficient to make him a copetitioner. Under the circumstances then obtaining, and by
reason of his foreign residence, he must have yielded to the
legal advice that an affidavit of consent on his part sufficed to
make him a party to the petition. This is evident from the text of
his affidavit. Punctiliousness in language and pedantry in the
formal requirements should yield to and be eschewed in the
higher considerations of substantial justice. The future of an
innocent child must not be compromised by arbitrary insistence
of rigid adherence to procedural rules on the form of pleadings.

On the second issue, petitioner argues that, even assuming

that the Family Code should not apply retroactively, the Court
of Appeals should have modified the trial court's decision by
granting the adoption in favor of private respondent Zenaida C.
Bobiles only, her husband not being a petitioner. We do not
consider this as a tenable position and, accordingly, reject the
same.

We see no reason why the following doctrines in American law

should not apply to this case and, for that matter, in our
jurisdiction. It is a settled rule therein that adoption statutes, as
well as matters of procedure leading up to adoption, should be
liberally construed to carry out the beneficent purposes of the
adoption institution and to protect the adopted child in the
rights and privileges coming to it as a result of the adoption. 19
The modern tendency of the courts is to hold that there need
not be more than a substantial compliance with statutory
requirements to sustain the validity of the proceeding; to refuse
would be to indulge in such a narrow and technical
construction of the statute as to defeat its intention and
beneficial results or to invalidate proceedings where every
material requirement of the statute was complied with.

Although Dioscoro Bobiles was not named as one of the

petitioners in the petition for adoption filed by his wife, his
affidavit of consent, attached to the petition as Annex "B" and
expressly made an integral part thereof, shows that he himself
actually joined his wife in adopting the child. The pertinent
parts of his written consent read as follows:
xxx xxx xxx
2. That my wife, ZENAIDA O. CORTEZA BOBILES and I
mutually desire to adopt as our child, a boy named JASON
CONDAT, still a minor being six (6) years old, likewise residing
at 18 C. Imperial Street, Legaspi City, Albay, also in the
Philippines;
3. That we are filing the corresponding Petition for Adoption of
said minor child, JASON CONDAT, before the Juvenile and
Domestic Relations court, now the Regional Trial Court in
Legaspi City, Albay in the Philippines;
4. That I, Dioscoro C. Bobiles as the husband and father, am
giving my lawful consent to this adoption of said minor child,
JASON CONDAT;
5. That further, my wife ZENAIDA O. CORTEZA BOBILES, and
I have continuously reared and cared for this minor child,
JASON CONDAT since birth;
6. That as a result thereof, my wife and I have developed a
kind of maternal and paternal love for the boy as our very own,
exercising therein the care, concern and diligence of a good
father toward him;
7. That I am executing this document, an AFFIDAVIT OF
CONSENT for whatever it is worth in the premises as to the
matter of adoption of this minor child, JASON CONDAT, by my
wife ZENAIDA O. CORTEZA BOBILES and by me,
DIOSCORO C. BOBILES, in any court of justice; (Emphasis
supplied.) 18
xxx xxx xxx

In support of this rule it is said that it is not the duty of the

courts to bring the judicial microscope to bear upon the case in
order that every slight defect may be enlarged and magnified
so that a reason may be found for declaring invalid an act
consummated years before, but rather to approach the case
with the inclination to uphold such acts if it is found that there
was a substantial compliance with the statute. 20 The technical
rules of pleading should not be stringently applied to adoption
proceedings, and it is deemed more important that the petition
should contain facts relating to the child and its parents, which
may give information to those interested, than that it should be
formally correct as a pleading. Accordingly, it is generally held
that a petition will confer jurisdiction if it substantially complies
with the adoption statute, alleging all facts necessary to give
the court jurisdiction. 21
In determining whether or not to set aside the decree of
adoption the interests and welfare of the child are of primary
and paramount consideration. 22 The welfare of a child is of
paramount consideration in proceedings involving its custody
and the propriety of its adoption by another, and the courts to
which the application for adoption is made is charged with the
duty of protecting the child and its interests and, to bring those
interests fully before it, it has authority to make rules to
accomplish that end. 23 Ordinarily, the approval of the adoption
rests in the sound discretion of the court. This discretion should
be exercised in accordance with the best interests of the child,
as long as the natural rights of the parents over the child are
not disregarded. In the absence of a showing of grave abuse,
the exercise of this discretion by the approving official will not
be disturbed. 24
In the case at bar, the rights concomitant to and conferred by
the decree of adoption will be for the best interests of the child.

His adoption is with the consent of his natural parents. 25 The

representative of the Department of Social Welfare and
Development unqualifiedly recommended the approval of the
petition for adoption 26 and the trial court dispensed with the
trial custody for several commendatory reasons, especially
since the child had been living with the adopting parents since
infancy. 27 Further, the said petition was with the sworn written
consent of the children of the adopters.

THIRD DIVISION

The trial court and respondent court acted correctly in granting

the petition for adoption and we find no reason to disturb the
same. As found and aptly stated by respondent court: "Given
the facts and circumstances of the case and considered in the
light of the foregoing doctrine, 28 We are of the opinion and so
hold that the decree of adoption issued by the court a quo
would go a long way towards promoting the welfare of the child
and the enhancement of his opportunities for a useful and
happy life." 29

[G.R. No. 105308. September 25, 1998]

Adoption statutes, being humane and salutary, hold the

interests and welfare of the child to be of paramount
consideration. They are designed to provide homes, parental
care and education for unfortunate, needy or orphaned children
and give them the protection of society and family in the person
of the adopted, as well as to allow childless couples or persons
to experience the joys of parenthood and give them legally a
child in the person of the adopted for the manifestation of their
natural parental instincts. Every reasonable intendment should
be sustained to promote and fulfill these noble and
compassionate objectives of the law. 30

Can minor children be legally adopted without the written

consent of a natural parent on the ground that the latter has
abandoned them? The answer to this interesting query,
certainly not one of first impression, would have to be reached,
not solely on the basis of law and jurisprudence, but also the
hard reality presented by the facts of the case.

WHEREFORE, the instant petition is hereby DENIED.

SO ORDERED.

HERBERT CANG, petitioner, vs. COURT OF APPEALS and

Spouses RONALD V. CLAVANO and MARIA CLARA
CLAVANO, respondents.
DECISION
ROMERO, J.:

This is the question posed before this Court in this petition for
review on certiorari of the Decisionlxxxii of the Court of Appeals
affirming the decree of adoption issued by the Regional Trial
Court of Cebu City, Branch 14, lxxxiii in Special Proceedings No.
1744-CEB, In the Matter of the Petition for Adoption of the
minors Keith, Charmaine and Joseph Anthony, all surnamed
Cang, Spouses Ronald V. Clavano and Maria Clara Diago
Clavano, petitioners.
Petitioner Herbert Cang and Anna Marie Clavano who were
married on January 27, 1973, begot three children, namely:
Keith, born on July 3, 1973; Charmaine, born on January 23,
1977, and Joseph Anthony, born on January 3, 1981.
During the early years of their marriage, the Cang couples
relationship was undisturbed. Not long thereafter, however,
Anna Marie learned of her husbands alleged extramarital affair
with Wilma Soco, a family friend of the Clavanos.
Upon learning of her husbands alleged illicit liaison, Anna
Marie filed a petition for legal separation with alimony
pendente litelxxxiv with the then Juvenile and Domestic Relations
Court of Cebulxxxv which rendered a decisionlxxxvi approving the
joint manifestation of the Cang spouses providing that they
agreed to live separately and apart or from bed and board.
They further agreed:
(c) That the children of the parties shall be entitled to a monthly
support of ONE THOUSAND PESOS (P1,000.00) effective
from the date of the filing of the complaint. This shall constitute
a first lien on the net proceeds of the house and lot jointly
owned by the parties situated at Cinco Village, Mandaue City;
(d) That the plaintiff shall be entitled to enter into any contract
or agreement with any person or persons, natural or juridical
without the written consent of the husband; or any undertaking

or acts that ordinarily requires husbands consent as the parties

are by this agreement legally separated;lxxxvii

then directed the Clavanos to deliver custody over the minors

to petitioner.

Petitioner then left for the United States where he sought a

divorce from Anna Marie before the Second Judicial District
Court of the State of Nevada. Said court issued the divorce
decree that also granted sole custody of the three minor
children to Anna Marie, reserving rights of visitation at all
reasonable times and places to petitioner.lxxxviii

On March 27, 1990, the Regional Trial Court of Cebu City,

Branch 14, issued a decree of adoption with a dispositive
portion reading as follows:

Thereafter, petitioner took an American wife and thus became

a naturalized American citizen. In 1986, he divorced his
American wife and never remarried.
While in the United States, petitioner worked in Tablante
Medical Clinic earning P18,000.00 to P20,000.00 a monthlxxxix a
portion of which was remitted to the Philippines for his
childrens expenses and another, deposited in the bank in the
name of his children.
Meanwhile, on September 25, 1987, private respondents
Ronald V. Clavano and Maria Clara Diago Clavano,
respectively the brother and sister-in-law of Anna Marie, filed
Special Proceedings No. 1744-CEB for the adoption of the
three minor Cang children before the Regional Trial Court of
Cebu. The petition bears the signature of then 14-year-old
Keith signifying consent to his adoption. Anna Marie likewise
filed an affidavit of consent alleging that her husband had
evaded his legal obligation to support his children; that her
brothers and sisters including Ronald V. Clavano, had been
helping her in taking care of the children; that because she
would be going to the United States to attend to a family
business, leaving the children would be a problem and would
naturally hamper (her) job-seeking venture abroad; and that
her husband had long forfeited his parental rights over the
children for the following reasons:
1. The decision in Civil Case No. JD-707 allowed her to enter
into any contract without the written consent of her husband;
2. Her husband had left the Philippines to be an illegal alien in
the United States and had been transferring from one place to
another to avoid detection by Immigration authorities, and
3. Her husband had divorced her.
Upon learning of the petition for adoption, petitioner
immediately returned to the Philippines and filed an opposition
thereto, alleging that, although private respondents Ronald and
Maria Clara Clavano were financially capable of supporting the
children while his finances were too meager compared to
theirs, he could not in conscience, allow anybody to strip him of
his parental authority over his beloved children.
Pending resolution of the petition for adoption, petitioner
moved to reacquire custody over his children alleging that
Anna Marie had transferred to the United States thereby
leaving custody of their children to private respondents. On
January 11, 1988, the Regional Trial Court of Cebu City,
Branch 19, issued an order finding that Anna Marie had, in
effect, relinquished custody over the children and, therefore,
such custody should be transferred to the father. The court

WHEREFORE, premises considered, the petition for adoption

of the minors Keith, Charmaine and Joseph Anthony all
surnamed Cang, by the petitioners-spouses Ronald V. Clavano
and Maria Clara Diago Clavano is hereby granted and
approved. These children shall henceforth be known and called
as Keith D. Clavano, Charmaine D. Clavano and Joseph
Anthony D. Clavano respectively. Moreover, this Decree of
Adoption shall:
(1)
Confer upon the adopted children the same rights and
duties as though they were in fact the legitimate children of the
petitioners;
(2)
Dissolve the authority vested in the parents by nature,
of the children; and,
(3)

Vest the same authority in the petitioners.

Furnish the Local Civil Registrar of Cebu City, Philippines with

a copy of this Decree of Adoption for registration purposes.
SO ORDERED.
In so ruling, the lower court was impelled by these reasons:
(1) The Cang children had, since birth, developed close filial
ties with the Clavano family, especially their maternal uncle,
petitioner Ronald Clavano.
(2) Ronald and Maria Clara Clavano were childless and, with
their printing press, real estate business, export business and
gasoline station and mini-mart in Rosemead, California, U.S.A.,
had substantial assets and income.
(3) The natural mother of the children, Anna Marie, nicknamed
Menchu, approved of the adoption because of her heart
ailment, near-fatal accident in 1981, and the fact that she could
not provide them a secure and happy future as she travels a
lot.
(4) The Clavanos could provide the children moral and spiritual
direction as they would go to church together and had sent the
children to Catholic schools.
(5) The children themselves manifested their desire to be
adopted by the Clavanos Keith had testified and expressed the
wish to be adopted by the Clavanos while the two younger
ones were observed by the court to have snuggled close to
Ronald even though their natural mother was around.
On the other hand, the lower court considered the opposition of
petitioner to rest on a very shaky foundation because of its
findings that:
(1) Petitioner was morally unfit to be the father of his children
on account of his being an improvident father of his family and

an undisguised Lothario. This conclusion is based on the

testimony of his alleged paramour, mother of his two sons and
close friend of Anna Marie, Wilma Soco, who said that she and
petitioner lived as husband and wife in the very house of the
Cangs in Opao, Mandaue City.
(2) The alleged deposits of around $10,000 that were of
comparatively recent dates were attempts at verisimilitude as
these were joint deposits the authenticity of which could not be
verified.
(3) Contrary to petitioners claim, the possibility of his
reconciliation with Anna Marie was dim if not nil because it was
petitioner who devised, engineered and executed the divorce
proceedings at the Nevada Washoe County court.
(4) By his naturalization as a U.S. citizen, petitioner is now an
alien from the standpoint of Philippine laws and therefore, how
his new attachments and loyalties would sit with his (Filipino)
children is an open question.
Quoting with approval the evaluation and recommendation of
the RTC Social Worker in her Child Study Report, the lower
court concluded as follows:
Simply put, the oppositor Herbert Cang has abandoned his
children. And abandonment of a child by its (sic) parent is
commonly specified by statute as a ground for dispensing with
his consent to its (sic) adoption (Re Cozza, 163 Cal. 514 P.
161, Ann. [As. 1914A, 214]). Indeed, in such case, adoption will
be allowed not only without the consent of the parent, but even
against his opposition (Re McKeag, 141 Cal. 403, 74 P. 1039,
99 Am. St. Rep. 80; Re Camp. 131 Cal. 469, 63 P. 736, 82 Am.
St. Rep. 371; Graham v. Francis, 83 Colo. 346, 265 P. 690,
citing R.C.L.; Seibert, 170 Iowa, 561, 153 N.W. 160, citing
R.C.L.; Stearns v. Allen, 183 Mass. 404, 67 N.E. 349; 97 Am.
St. Rep. 441; Wilson v. Otis, 71 N.H. 483, 53 A. 439, 93 Am. St.
Rep. 564; Nugent v. Powell, 4 Wyo. 173, 33 P. 23, 20 L.R.A.
199, 62 Am. St. Rep. 17.)xc
Before the Court of Appeals, petitioner contended that the
lower court erred in holding that it would be in the best interest
of the three children if they were adopted by private
respondents Ronald and Maria Clara Clavano. He asserted
that the petition for adoption was fatally defective and tailored
to divest him of parental authority because: (a) he did not have
a written consent to the adoption; (b) he never abandoned his
children; (c) Keith and Charmaine did not properly give their
written consent; and (d) the petitioners for adoption did not
present as witness the representative of the Department of
Social Welfare and Development who made the case study
report required by law.
The Court of Appeals affirmed the decree of adoption stating:
Article 188 of the Family Code requires the written consent of
the natural parents of the child to be adopted. It has been held
however that the consent of the parent who has abandoned the
child is not necessary (Dayrit vs. Piccio, 92 Phil. 729; Santos
vs. Ananzanso, 16 SCRA 344). The question therefore is
whether or not oppositor may be considered as having

abandoned the children. In adoption cases, abandonment

connotes any conduct on the part of the parent to forego
parental duties and relinquish parental claims to the child, or
the neglect or refusal to perform the natural and legal
obligations which parents owe their children (Santos vs.
Ananzanso, supra), or the withholding of the parents presence,
his care and the opportunity to display voluntary affection. The
issue of abandonment is amply covered by the discussion of
the first error.
Oppositor argues that he has been sending dollar remittances
to the children and has in fact even maintained bank accounts
in their names. His duty to provide support comes from two
judicial pronouncements. The first, the decision in JD-707 CEB,
supra, obliges him to pay the children P1,000.00 a month. The
second is mandated by the divorce decree of the Nevada,
U.S.A. Federal Court which orders him to pay monthly support
of US$50.00 for each child. Oppositor has not submitted any
evidence to show compliance with the decision in JD-101 CEB,
but he has submitted 22 cancelled dollar checks (Exhs. 24 to
45) drawn in the childrens names totalling $2,126.98. The last
remittance was on October 6, 1987 (Exh. 45). His obligation to
provide support commenced under the divorce decree on May
5, 1982 so that as of October 6, 1987, oppositor should have
made 53 remittances of $150.00, or a total of $7,950.00. No
other remittances were shown to have been made after
October 6, 1987, so that as of this date, oppositor was woefully
in arrears under the terms of the divorce decree. And since he
was totally in default of the judgment in JD-707 CEB, the
inevitable conclusion is oppositor had not really been
performing his duties as a father, contrary to his protestations.
True, it has been shown that oppositor had opened three
accounts in different banks, as follows
Acct. No.

Date Opened Balance

1)
118-July 23, 1985 $5,018.50
606437-4
Oct. 29, 1987

March 5, 1986 3,129.00

2) 73-166-8

Oct. 26, 1987

December 31,2,622.19
3)
564-1986
146883
Oct. 29, 1987

Name of Bank
Great
Western
Savings, Daly City,
Cal., U.S.A.

Matewan
National
Bank of Williamson,
West Virginia, U.S.A.

Security
Pacific
National Bank, Daly
City, Cal., U.S.A.

The first and third accounts were opened however in

oppositors name as trustee for Charmaine Cang and Joseph
Anthony Cang, respectively. In other words, the accounts are
operated and the amounts withdrawable by oppositor himself
and it cannot be said that they belong to the minors. The
second is an `or account, in the names of Herbert Cang or
Keith Cang. Since Keith is a minor and in the Philippines, said

account is operable only by oppositor and the funds

withdrawable by him alone.

31, 33 and 35 of the Child and Youth Welfare Code. As thus

amended, Article 31 read:

The bank accounts do not really serve what oppositor claimed

in his offer of evidence `the aim and purpose of providing for a
better future and security of his family.xci

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

the following to the adoption shall be necessary:

Petitioner moved to reconsider the decision of the Court of

Appeals. He emphasized that the decree of legal separation
was not based on the merits of the case as it was based on a
manifestation amounting to a compromise agreement between
him and Anna Marie. That he and his wife agreed upon the
plan for him to leave for the United States was borne out by the
fact that prior to his departure to the United States, the family
lived with petitioners parents. Moreover, he alone did not
instigate the divorce proceedings as he and his wife initiated
the joint complaint for divorce.
Petitioner argued that the finding that he was not fit to rear and
care for his children was belied by the award to him of custody
over the children in Civil Case No. JD-707. He took exception
to the appellate courts findings that as an American citizen he
could no longer lay claim to custody over his children because
his citizenship would not take away the fact that he is still a
father to his children. As regards his alleged illicit relationship
with another woman, he had always denied the same both in
Civil Case No. JD-707 and the instant adoption case. Neither
was it true that Wilma Soco was a neighbor and family friend of
the Clavanos as she was residing in Mandaue City seven (7)
kilometers away from the Clavanos who were residents of
Cebu City. Petitioner insisted that the testimony of Wilma Soco
should not have been given weight for it was only during the
hearing of the petition for adoption that Jose Clavano, a brother
of Ronald, came to know her and went to her residence in
Iligan City to convince her to be a witness for monetary
considerations. Lastly, petitioner averred that it would be
hypocritical of the Clavanos to claim that they could love the
children much more than he could.xcii
His motion for reconsideration having been denied, petitioner is
now before this Court, alleging that the petition for adoption
was fatally defective as it did not have his written consent as a
natural father as required by Article 31 (2) of Presidential
Decree No. 603, the Child and Youth Welfare Code, and Article
188 (2) of the Family Code.
Article 31 of P.D. No. 603 provides ART. 31. Whose Consent is Necessary. The written consent of
the following to the adoption shall be necessary:
(1) The person to be adopted, if fourteen years of age or over;
(2) The natural parents of the child or his legal guardian of the
Department of Social Welfare or any duly licensed child
placement agency under whose care the child may be;
(3) The natural children, fourteen years and above, of the
adopting parents. (Underscoring supplied)
On December 17, 1986, then President Corazon C. Aquino
issued Executive Order No. 91 amending Articles 27, 28, 29,

(1) The person to be adopted, if fourteen years of age or over;

(2) The natural parents of the child or his legal guardian after
receiving counselling and appropriate social services from the
Ministry of Social Services and Development or from a duly
licensed child-placement agency;
(3) The Ministry of Social Services and Development or any
duly licensed child-placement agency under whose care and
legal custody the child may be;
(4) The natural children, fourteen years and above, of the
adopting parents. (Underscoring supplied)
Jurisdiction being a matter of substantive law, the established
rule is that the statute in force at the time of the
commencement of the action determines the jurisdiction of the
court.xciii As such, when private respondents filed the petition for
adoption on September 25, 1987, the applicable law was the
Child and Youth Welfare Code, as amended by Executive
Order No. 91.
During the pendency of the petition for adoption or on August
3, 1988, the Family Code which amended the Child and Youth
Welfare Code took effect. Article 256 of the Family Code
provides for its retroactivity insofar as it does not prejudice or
impair vested or acquired rights in accordance with the Civil
Code or other laws. As amended by the Family Code, the
statutory provision on consent for adoption now reads:
Art. 188. The written consent of the following to the adoption
shall be necessary:
(1) The person to be adopted, if ten years of age or over;
(2) The parents by nature of the child, the legal guardian, or the
proper government instrumentality;
(3) The legitimate and adopted children, ten years of age or
over, of the adopting parent or parents;
(4) The illegitimate children, ten years of age or over, of the
adopting parents, if living with said parent and the latters
spouse, if any; and
(5) The spouse, if any, of the person adopting or to be adopted.
(Underscoring supplied)
Based on the foregoing, it is thus evident that notwithstanding
the amendments to the law, the written consent of the natural
parent to the adoption has remained a requisite for its validity.
Notably, such requirement is also embodied in Rule 99 of the
Rules of Court as follows:
SEC. 3. Consent to adoption. There shall be filed with the
petition a written consent to the adoption signed by the child, if
fourteen years of age or over and not incompetent, and by the

childs spouse, if any, and by each of its known living parents

who is not insane or hopelessly intemperate or has not
abandoned the child, or if there are no such parents by the
general guardian or guardian ad litem of the child, or if the child
is in the custody of an orphan asylum, childrens home, or
benevolent society or person, by the proper officer or officers of
such asylum, home, or society, or by such persons; but if the
child is illegitimate and has not been recognized, the consent
of its father to the adoption shall not be required. (Underscoring
supplied)
As clearly inferred from the foregoing provisions of law, the
written consent of the natural parent is indispensable for the
validity of the decree of adoption. Nevertheless, the
requirement of written consent can be dispensed with if the
parent has abandoned the childxciv or that such parent is insane
or hopelessly intemperate. The court may acquire jurisdiction
over the case even without the written consent of the parents
or one of the parents provided that the petition for adoption
alleges facts sufficient to warrant exemption from compliance
therewith. This is in consonance with the liberality with which
this Court treats the procedural aspect of adoption. Thus, the
Court declared:
x x x. The technical rules of pleading should not be stringently
applied to adoption proceedings, and it is deemed more
important that the petition should contain facts relating to the
child and its parents, which may give information to those
interested, than that it should be formally correct as a pleading.
Accordingly, it is generally held that a petition will confer
jurisdiction if it substantially complies with the adoption statute,
alleging all facts necessary to give the court jurisdiction.xcv
In the instant case, only the affidavit of consent of the natural
mother was attached to the petition for adoption. Petitioners
consent, as the natural father is lacking. Nonetheless, the
petition sufficiently alleged the fact of abandonment of the
minors for adoption by the natural father as follows:
3. That the childrens mother, sister of petitioner RONALD V.
CLAVANO, has given her express consent to this adoption, as
shown by Affidavit of Consent, Annex `A. Likewise, the written
consent of Keith Cang, now 14 years of age appears on page 2
of this petition; However, the father of the children, Herbert
Cang, had already left his wife and children and had already
divorced the former, as evidenced by the xerox copy of the
DECREE OF DIVORCE issued by the County of Washoe,
State of Nevada, U.S.A. (Annex `B) which was filed at the
instance of Mr. Cang, not long after he abandoned his family to
live in the United States as an illegal immigrant.xcvi
The allegations of abandonment in the petition for adoption,
even absent the written consent of petitioner, sufficiently vested
the lower court with jurisdiction since abandonment of the child
by his natural parents is one of the circumstances under which
our statutes and jurisprudencexcvii dispense with the
requirement of written consent to the adoption of their minor
children.
However, in cases where the father opposes the adoption
primarily because his consent thereto was not sought, the

matter of whether he had abandoned his child becomes a

proper issue for determination. The issue of abandonment by
the oppositor natural parent is a preliminary issue that an
adoption court must first confront. Only upon failure of the
oppositor natural father to prove to the satisfaction of the court
that he did not abandon his child may the petition for adoption
be considered on its merits.
As a rule, factual findings of the lower courts are final and
binding upon this Court.xcviii This Court is not expected nor
required to examine or contrast the oral and documentary
evidence submitted by the parties.xcix However, although this
Court is not a trier of facts, it has the authority to review and
reverse the factual findings of the lower courts if it finds that
these do not conform to the evidence on record.c
In Reyes v. Court of Appeals,ci this Court has held that the
exceptions to the rule that factual findings of the trial court are
final and conclusive and may not be reviewed on appeal are
the following: (1) when the inference made is manifestly
mistaken, absurd or impossible; (2) when there is a grave
abuse of discretion; (3) when the finding is grounded entirely
on speculations, surmises or conjectures; (4) when the
judgment of the Court of Appeals is based on misapprehension
of facts; (5) when the findings of fact are conflicting; (6) when
the Court of Appeals, in making its findings, went beyond the
issues of the case and the same is contrary to the admissions
of both appellant and appellee; (7) when the findings of the
Court of Appeals are contrary to those of the trial court; (8)
when the findings of fact are conclusions without citation of
specific evidence on which they are based; (9) when the Court
of Appeals manifestly overlooked certain relevant facts not
disputed by the parties and which, if properly considered,
would justify a different conclusion and (10) when the findings
of fact of the Court of Appeals are premised on the absence of
evidence and are contradicted by the evidence on record.
This Court finds that both the lower court and the Court of
Appeals failed to appreciate facts and circumstances that
should have elicited a different conclusioncii on the issue of
whether petitioner has so abandoned his children, thereby
making his consent to the adoption unnecessary.
In its ordinary sense, the word abandon means to forsake
entirely, to forsake or renounce utterly. The dictionaries trace
this word to the root idea of putting under a ban. The emphasis
is on the finality and publicity with which a thing or body is thus
put in the control of another, hence, the meaning of giving up
absolutely, with intent never to resume or claim ones rights or
interests.ciii In reference to abandonment of a child by his
parent, the act of abandonment imports any conduct of the
parent which evinces a settled purpose to forego all parental
duties and relinquish all parental claims to the child. It means
neglect or refusal to perform the natural and legal obligations of
care and support which parents owe their children.civ
In the instant case, records disclose that petitioners conduct
did not manifest a settled purpose to forego all parental duties
and relinquish all parental claims over his children as to
constitute abandonment. Physical estrangement alone, without
financial and moral desertion, is not tantamount to

abandonment.cv While admittedly, petitioner was physically

absent as he was then in the United States, he was not remiss
in his natural and legal obligations of love, care and support for
his children. He maintained regular communication with his
wife and children through letters and telephone. He used to
send packages by mail and catered to their whims.
Petitioners testimony on the matter is supported by
documentary evidence consisting of the following handwritten
letters to him of both his wife and children:
1.
Exh. 1 a 4-page undated letter of Menchu (Anna
Marie) addressed to Dear Bert on a C.Westates Carbon Phil.
Corp. stationery. Menchu stated therein that it had been a long
time since the last time youve heard from me excluding that of
the phone conversation weve had. She discussed petitioners
intention to buy a motorbike for Keith, expressing apprehension
over risks that could be engendered by Keiths use of it. She
said that in the last phone conversation she had with petitioner
on the birthday of Ma, she forgot to tell petitioner that Keiths
voice had changed; he had become a bagito or a teen-ager
with many fans who sent him Valentines cards. She told him
how Charmaine had become quite a talkative almost dalaga
who could carry on a conversation with her angkong and how
pretty she was in white dress when she won among the
candidates in the Flores de Mayo after she had prayed so hard
for it. She informed him, however, that she was worried
because Charmaine was vain and wont to extravagance as
she loved clothes. About Joeton (Joseph Anthony), she told
petitioner that the boy was smart for his age and quite spoiled
being the youngest of the children in Lahug. Joeton was
mischievous but Keith was his idol with whom he would sleep
anytime. She admitted having said so much about the children
because they might not have informed petitioner of some
happenings and spices of life about themselves. She said that
it was just very exciting to know how theyve grown up and very
pleasant, too, that each of them have (sic) different characters.
She ended the letter with the hope that petitioner was at the
best of health. After extending her regards to all, she signed
her name after the word Love. This letter was mailed on July 9,
1986 from Cebu to petitioner whose address was P.O. Box
2445, Williamson, West Virginia 25661 (Exh. 1-D).
2.
Exh. 2 letter dated 11/13/84 on a green stationery with
golden print of a note from Menchu on the left upper corner.
Anna Marie stated that we wrote to petitioner on Oct. 2, 1984
and that Keith and Joeton were very excited when petitioner
called up last time. She told him how Joeton would grab the
phone from Keith just so petitioner would know what he wanted
to order. Charmaine, who was asleep, was so disappointed
that she missed petitioners call because she also wanted
something that petitioner should buy. Menchu told petitioner
that Charmaine wanted a pencil sharpener, light-colored Tshirts for her walking shorts and a (k)nap sack. Anna Marie
informed petitioner that the kids were growing up and so were
their needs. She told petitioner to be very fatherly about the
childrens needs because those were expensive here. For
herself, Anna Marie asked for a subscription of Glamour and
Vogue magazines and that whatever expenses he would incur,
she would replace these. As a postscript, she told petitioner
that Keith wanted a size 6 khaki-colored Sperry topsider shoes.

3. Exh. 3 an undated note on a yellow small piece of paper that

reads:
Dear Herbert,
Hi, how was Christmas and New Year? Hope you had a
wonderful one.
By the way thanks for the shoes, it was a nice one. Its nice to
be thought of at Xmas. Thanks again.
Sincerely,
Menchu
4.
Exh. 4 a two-page undated letter of Keith on
stationery of Jose Clavano, Inc. addressed to Dear Dad. Keith
told his father that they tried to tell their mother to stay for a
little while, just a few weeks after classes start(s) on June 16.
He informed petitioner that Joeton would be in Kinder I and
that, about the motorbike, he had told his mother to write
petitioner about it and well see what youre (sic) decision will
be. He asked for chocolates, nuts, basketball shirt and shorts,
rubber shoes, socks, headband, some clothes for outing and
perfume. He told petitioner that they had been going to Lahug
with their mother picking them up after Angkong or Ama had
prepared lunch or dinner. From her aerobics, his mother would
go for them in Lahug at about 9:30 or 10:00 oclock in the
evening. He wished his father luck and the best of health and
that they prayed for him and their other relatives. The letter
was ended with Love Keith.
5.
Exh. 5 another undated long letter of Keith. He
thanked his father for the Christmas card with $40.00, $30.00
and $30.00 and the card of Joeton with $5.00 inside. He told
petitioner the amounts following his fathers instructions and
promise to send money through the mail. He asked his father
to address his letter directly to him because he wanted to open
his own letters. He informed petitioner of activities during the
Christmas season that they enjoyed eating, playing and giving
surprises to their mother. He apprised him of his daily schedule
and that their mother had been closely supervising them,
instructing them to fold their blankets and pile up their pillows.
He informed petitioner that Joeton had become very smart
while Charmaine, who was also smart, was very demanding of
their mother. Because their mother was leaving for the United
States on February 5, they would be missing her like they were
missing petitioner. He asked for his things and $200.00. He told
petitioner more anecdotes about Joeton like he would make
the sign of the cross even when they would pass by the Iglesia
ni Cristo church and his insistence that Aquino was not dead
because he had seen him on the betamax machine. For Keith,
Charmaine had become very maldita who was not always
satisfied with her dolls and things but Joeton was full of
surprises. He ended the letter with Love your son, Keith. The
letter was mailed on February 6, 1985 (Exh. 5-D).
6.
Exh. 6 an undated letter Charmaine. She thanked
petitioner for the bathing suit, key chain, pencil box, socks, half
shirt, pencil sharpener and $50.00. She reminded him of of her
birthday on January 23 when she would turn 9 years old. She

informed him that she wore size 10 and the size of her feet was
IM. They had fun at Christmas in Lahug but classes would start
on January 9 although Keiths classes had started on January
6. They would feel sad again because Mommy would be
leaving soon. She hoped petitioner would keep writing them.
She signed, Love, Charmaine.
7.
Exh . 7 an undated letter of Keith. He explained to
petitioner that they had not been remiss in writing letters to
him. He informed him of their trip to Manila they went to
Malacaang, Tito Doy Laurels house, the Ministry of Foreign
Affairs, the executive house, Tagaytay for three days and
Baguio for one week. He informed him that he got honors,
Charmaine was 7th in her class and Joeton had excellent
grades. Joeton would be enrolled in Sacred Heart soon and he
was glad they would be together in that school. He asked for
his reward from petitioner and so with Charmaine and Joeton.
He asked for a motorbike and dollars that he could save. He
told petitioner that he was saving the money he had been
sending them. He said he missed petitioner and wished him
the best. He added that petitioner should call them on
Sundays.
8.
Exh. 8 a letter from Joeton and Charmaine but
apparently written by the latter. She asked for money from
petitioner to buy something for the school and something else.
She promised not to spend so much and to save some. She
said she loved petitioner and missed him. Joeton said hi! to
petitioner. After ending the letter with Love, Joeton and
Charmaine, she asked for her prize for her grades as she got
seventh place.
9.
Exh. 9 undated letter of Keith. He assured petitioner
that he had been writing him; that he would like to have some
money but he would save them; that he learned that petitioner
had called them up but he was not around; that he would be
going to Manila but would be back home May 3; that his
Mommy had just arrived Thursday afternoon, and that he
would be the official altar boy. He asked petitioner to write them
soon.
10.
Exh. 10 Keith thanked petitioner for the money he
sent. He told petitioner that he was saving some in the bank
and he was proud because he was the only one in his group
who saved in the bank. He told him that Joeton had become
naughty and would claim as his own the shirts sent to Keith by
petitioner. He advised petitioner to send pants and shirts to
Joeton, too, and asked for a pair of topsider shoes and
candies. He informed petitioner that he was a member of the
basketball team and that his mom would drive for his group. He
asked him to call them often like the father of Ana Christie and
to write them when he would call so that they could wait for it.
He informed petitioner that they had all grown bigger and
heavier. He hoped petitioner would be happy with the letter that
had taken him so long to write because he did not want to
commit any mistakes. He asked petitioner to buy him perfume
(Drakkar) and, after thanking petitioner, added that the latter
should buy something for Mommy.
11.
Exh. 11 a Christmas card For My Wonderful Father
dated October 8, 1984 from Keith, Charmaine and Joeton.

12.
Exh. 12 another Christmas card, Our Wish For You
with the year 83 written on the upper right hand corner of the
inside page, from Keith, Charmaine and Joeton.
13.
Exh. 13 a letter of Keith telling petitioner that he had
written him even when their Mom was there where she bought
them clothes and shoes. Keith asked petitioner for $300.00.
Because his mother would not agree to buy him a motorbike,
he wanted a Karaoke unit that would cost P12,000.00. He
informed petitioner that he would go to an afternoon disco with
friends but their grades were all good with Joeton receiving
stars for excellence. Keith wanted a bow and arrow Rambo
toys and G.I. Joe. He expressed his desire that petitioner
would come and visit them someday.
14.
Exh. 14 a letter of Keith with one of the four pages
bearing the date January 1986. Keith told his father that they
had received the package that the latter sent them. The clothes
he sent, however, fitted only Keith but not Charmaine and
Joeton who had both grown bigger. Keith asked for grocery
items, toys and more clothes. He asked, in behalf of his
mother, for low-heeled shoes and a dress to match, jogging
pants, tights and leotards that would make her look sexy. He
intimated to petitioner that he had grown taller and that he was
already ashamed to be asking for things to buy in the grocery
even though his mother had told him not to be shy about it.
Aside from these letters, petitioner also presented certifications
of banks in the U.S.A. showing that even prior to the filing of
the petition for adoption, he had deposited amounts for the
benefit of his children.cvi Exhibits 24 to 45 are copies of checks
sent by petitioner to the children from 1985 to 1989.
These pieces of evidence are all on record. It is, therefore,
quite surprising why the courts below simply glossed over
these, ignoring not only evidence on financial support but also
the emotional exchange of sentiments between petitioner and
his family. Instead, the courts below emphasized the
meagerness of the amounts he sent to his children and the fact
that, as regards the bank deposits, these were withdrawable by
him alone. Simply put, the courts below attached a high
premium to the prospective adopters financial status but totally
brushed aside the possible repercussion of the adoption on the
emotional and psychological well-being of the children.
True, Keith had expressed his desire to be adopted by his
uncle and aunt. However, his seeming steadfastness on the
matter as shown by his testimony is contradicted by his
feelings towards his father as revealed in his letters to him. It is
not at all farfetched to conclude that Keiths testimony was
actually the effect of the filing of the petition for adoption that
would certainly have engendered confusion in his young mind
as to the capability of his father to sustain the lifestyle he had
been used to.
The courts below emphasized respondents emotional
attachment to the children. This is hardly surprising for, from
the very start of their young lives, the children were used to
their presence. Such attachment had persisted and certainly,
the young ones act of snuggling close to private respondent
Ronald Clavano was not indicative of their emotional

detachment from their father. Private respondents, being the

uncle and aunt of the children, could not but come to their
succor when they needed help as when Keith got sick and
private respondent Ronald spent for his hospital bills.
In a number of cases, this Court has held that parental
authority cannot be entrusted to a person simply because he
could give the child a larger measure of material comfort than
his natural parent. Thus, in David v. Court of Appeals,cvii the
Court awarded custody of a minor illegitimate child to his
mother who was a mere secretary and market vendor instead
of to his affluent father who was a married man, not solely
because the child opted to go with his mother. The Court said:
Daisie and her children may not be enjoying a life of affluence
that private respondent promises if the child lives with him. It is
enough, however, that petitioner is earning a decent living and
is able to support her children according to her means.
In Celis v. Cafuircviii where the Court was confronted with the
issue of whether to award custody of a child to the natural
mother or to a foster mother, this Court said:
This court should avert the tragedy in the years to come of
having deprived mother and son of the beautiful associations
and tender, imperishable memories engendered by the
relationship of parent and child. We should not take away from
a mother the opportunity of bringing up her own child even at
the cost of extreme sacrifice due to poverty and lack of means;
so that afterwards, she may be able to look back with pride and
a sense of satisfaction at her sacrifices and her efforts,
however humble, to make her dreams of her little boy come
true. We should not forget that the relationship between a
foster mother and a child is not natural but artificial. If the child
turns out to be a failure or forgetful of what its foster parents
had done for him, said parents might yet count and appraise
(sic) all that they have done and spent for him and with regret
consider all of it as a dead loss, and even rue the day they
committed the blunder of taking the child into their hearts and
their home. Not so with a real natural mother who never counts
the cost and her sacrifices, ever treasuring memories of her
associations with her child, however unpleasant and
disappointing. Flesh and blood count. x x x.
In Espiritu v. Court of Appeals, cix the Court stated that (I)n
ascertaining the welfare and best interests of the child, courts
are mandated by the Family Code to take into account all
relevant considerations. Thus, in awarding custody of the child
to the father, the Court said:
A scrutiny of the pleadings in this case indicates that Teresita,
or at least, her counsel are more intent on emphasizing the
`torture and agony of a mother separated from her children and
the humiliation she suffered as a result of her character being
made a key issue in court rather than the feelings and future,
the best interests and welfare of her children. While the bonds
between a mother and her small child are special in nature,
either parent, whether father or mother, is bound to suffer
agony and pain if deprived of custody. One cannot say that his
or her suffering is greater than that of the other parent. It is not
so much the suffering, pride, and other feelings of either parent

but the welfare of the child which is the paramount

consideration. (Italics supplied)cx
Indeed, it would be against the spirit of the law if financial
consideration were to be the paramount consideration in
deciding whether to deprive a person of parental authority over
his children. There should be a holistic approach to the matter,
taking into account the physical, emotional, psychological,
mental, social and spiritual needs of the child.cxi The conclusion
of the courts below that petitioner abandoned his family needs
more evidentiary support other than his inability to provide
them the material comfort that his admittedly affluent in-laws
could provide. There should be proof that he had so
emotionally abandoned them that his children would not miss
his guidance and counsel if they were given to adopting
parents. The letters he received from his children prove that
petitioner maintained the more important emotional tie between
him and his children. The children needed him not only
because he could cater to their whims but also because he
was a person they could share with their daily activities,
problems and triumphs.
The Court is thus dismayed that the courts below did not look
beyond petitioners meager financial support to ferret out other
indications on whether petitioner had in fact abandoned his
family. The omission of said courts has led us to examine why
the children were subjected to the process of adoption,
notwithstanding the proven ties that bound them to their father.
To our consternation, the record of the case bears out the fact
that the welfare of the children was not exactly the paramount
consideration that impelled Anna Marie to consent to their
adoption.
In her affidavit of consent, Anna Marie expressly said that
leaving the children in the country, as she was wont to travel
abroad often, was a problem that would naturally hamper her
job-seeking abroad. In other words, the adoption appears to be
a matter of convenience for her because Anna Marie herself is
financially capable of supporting her children.cxii In his
testimony, private respondent Ronald swore that Anna Marie
had been out of the country for two years and came home
twice or three times,cxiii thereby manifesting the fact that it was
she who actually left her children to the care of her relatives. It
was bad enough that their father left their children when he
went abroad, but when their mother followed suit for her own
reasons, the situation worsened. The Clavano family must
have realized this. Hence, when the family first discussed the
adoption of the children, they decided that the prospective
adopter should be Anna Maries brother Jose. However,
because he had children of his own, the family decided to
devolve the task upon private respondents.cxiv
This couple, however, could not always be in Cebu to care for
the children. A businessman, private respondent Ronald
Clavano commutes between Cebu and Manila while his wife,
private respondent Maria Clara, is an international flight
stewardess.cxv Moreover, private respondent Ronald claimed
that he could take care of the children while their parents are
away,cxvi thereby indicating the evanescence of his intention.
He wanted to have the childrens surname changed to Clavano
for the reason that he wanted to take them to the United States

as it would be difficult for them to get a visa if their surname

were different from his.cxvii To be sure, he also testified that he
wanted to spare the children the stigma of being products of a
broken home.
Nevertheless, a close analysis of the testimonies of private
respondent Ronald, his sister Anna Marie and their brother
Jose points to the inescapable conclusion that they just wanted
to keep the children away from their father. One of the
overriding considerations for the adoption was allegedly the
state of Anna Maries health she was a victim of an almost fatal
accident and suffers from a heart ailment. However, she herself
admitted that her health condition was not that serious as she
could still take care of the children. cxviii An eloquent evidence of
her ability to physically care for them was her employment at
the Philippine Consulate in Los Angelescxix- she could not have
been employed if her health were endangered. It is thus clear
that the Clavanos attempt at depriving petitioner of parental
authority apparently stemmed from their notion that he was an
inveterate womanizer. Anna Marie in fact expressed fear that
her children would never be at ease with the wife of their
father.cxx
Petitioner, who described himself as single in status, denied
being a womanizer and father to the sons of Wilma Soco.cxxi As
to whether he was telling the truth is beside the point.
Philippine society, being comparatively conservative and
traditional, aside from being Catholic in orientation, it does not
countenance womanizing on the part of a family man,
considering the baneful effects such irresponsible act visits on
his family. Neither may the Court place a premium on the
inability of a man to distinguish between siring children and
parenting them. Nonetheless, the actuality that petitioner
carried on an affair with a paramour cannot be taken as
sufficient basis for the conclusion that petitioner was
necessarily an unfit father.cxxii Conventional wisdom and
common human experience show that a bad husband does not
necessarily make a bad father. That a husband is not exactly
an upright man is not, strictly speaking, a sufficient ground to
deprive him as a father of his inherent right to parental
authority over the children.cxxiii Petitioner has demonstrated his
love and concern for his children when he took the trouble of
sending a telegramcxxiv to the lower court expressing his
intention to oppose the adoption immediately after learning
about it. He traveled back to this country to attend to the case
and to testify about his love for his children and his desire to
unite his family once more in the United States.cxxv
Private respondents themselves explained why petitioner failed
to abide by the agreement with his wife on the support of the
children. Petitioner was an illegal alien in the United States. As
such, he could not have procured gainful employment. Private
respondents failed to refute petitioners testimony that he did
not receive his share from the sale of the conjugal home,cxxvi
pursuant to their manifestation/compromise agreement in the
legal separation case. Hence, it can be reasonably presumed
that the proceeds of the sale redounded to the benefit of his
family, particularly his children. The proceeds may not have
lasted long but there is ample evidence to show that thereafter,
petitioner tried to abide by his agreement with his wife and sent
his family money, no matter how meager.

The liberality with which this Court treats matters leading to

adoption insofar as it carries out the beneficent purposes of the
law to ensure the rights and privileges of the adopted child
arising therefrom, ever mindful that the paramount
consideration is the overall benefit and interest of the adopted
child, should be understood in its proper context and
perspective. The Courts position should not be misconstrued or
misinterpreted as to extend to inferences beyond the
contemplation of law and jurisprudence.cxxvii The discretion to
approve adoption proceedings is not to be anchored solely on
best interests of the child but likewise, with due regard to the
natural rights of the parents over the child.cxxviii
In this regard, this Court notes private respondents reliance on
the manifestation/compromise agreement between petitioner
and Anna Marie which became the basis of the decree of legal
separation. According to private respondents counsel,cxxix the
authority given to Anna Marie by that decree to enter into
contracts as a result of the legal separation was all
embracingcxxx and, therefore, included giving her sole consent
to the adoption. This conclusion is however, anchored on the
wrong premise that the authority given to the innocent spouse
to enter into contracts that obviously refer to their conjugal
properties, shall include entering into agreements leading to
the adoption of the children. Such conclusion is as devoid of a
legal basis as private respondents apparent reliance on the
decree of legal separation for doing away with petitioners
consent to the adoption.
The transfer of custody over the children to Anna Marie by
virtue of the decree of legal separation did not, of necessity,
deprive petitioner of parental authority for the purpose of
placing the children up for adoption. Article 213 of the Family
Code states: . . . in case of legal separation of parents,
parental authority shall be exercised by the parent designated
by the court. In awarding custody, the court shall take into
account all relevant considerations, especially the choice of the
child over seven years of age, unless the parent chosen is
unfit.
It should be noted, however, that the law only confers on the
innocent spouse the exercise of parental authority. Having
custody of the child, the innocent spouse shall implement the
sum of parental rights with respect to his rearing and care. The
innocent spouse shall have the right to the childs services and
earnings, and the right to direct his activities and make
decisions regarding his care and control, education, health and
religion.cxxxi
In a number of cases, this Court has considered parental
authority, the joint exercise of which is vested by the law upon
the parents,cxxxii as
x x x a mass of rights and obligations which the law grants to
parents for the purpose of the childrens physical preservation
and development, as well as the cultivation of their intellect and
the education of their hearts and senses. As regards parental
authority, `there is no power, but a task; no complex of rights,
but a sum of duties; no sovereignty but a sacred trust for the
welfare of the minor.

Parental authority and responsibility are inalienable and may

not be transferred or renounced except in cases authorized by
law. The right attached to parental authority, being purely
personal, the law allows a waiver of parental authority only in
cases of adoption, guardianship and surrender to a childrens
home or an orphan institution. When a parent entrusts the
custody of a minor to another, such as a friend or godfather,
even in a document, what is given is merely temporary custody
and it does not constitute a renunciation of parental authority.
Even if a definite renunciation is manifest, the law still
disallows the same.
The father and mother, being the natural guardians of
unemancipated children, are duty-bound and entitled to keep
them in their custody and company.cxxxiii (Italics supplied)
As such, in instant case, petitioner may not be deemed as
having been completely deprived of parental authority,
notwithstanding the award of custody to Anna Marie in the legal
separation case. To reiterate, that award was arrived at by the
lower court on the basis of the agreement of the spouses.
While parental authority may be waived, as in law it may be
subject to a compromise,cxxxiv there was no factual finding in the
legal separation case that petitioner was such an irresponsible
person that he should be deprived of custody of his children or
that there are grounds under the law that could deprive him of
parental authority. In fact, in the legal separation case, the
court thereafter ordered the transfer of custody over the
children from Anna Marie back to petitioner. The order was not
implemented because of Anna Maries motion for
reconsideration thereon. The Clavano family also vehemently
objected to the transfer of custody to the petitioner, such that
the latter was forced to file a contempt charge against them.cxxxv
The law is clear that either parent may lose parental authority
over the child only for a valid reason. No such reason was
established in the legal separation case. In the instant case for
adoption, the issue is whether or not petitioner had abandoned
his children as to warrant dispensation of his consent to their
adoption. Deprivation of parental authority is one of the effects
of a decree of adoption.cxxxvi But there cannot be a valid decree
of adoption in this case precisely because, as this Court has
demonstrated earlier, the finding of the courts below on the
issue of petitioners abandonment of his family was based on a
misappreciation that was tantamount to non-appreciation, of
facts on record.
As regards the divorce obtained in the United States, this Court
has ruled in Tenchavez v. Escaocxxxvii that a divorce obtained by
Filipino citizens after the effectivity of the Civil Code is not
recognized in this jurisdiction as it is contrary to State policy.
While petitioner is now an American citizen, as regards Anna
Marie who has apparently remained a Filipino citizen, the
divorce has no legal effect.
Parental authority is a constitutionally protected State policy
borne out of established customs and tradition of our people.
Thus, in Silva v. Court of Appeals, cxxxviii a case involving the
visitorial rights of an illegitimate parent over his child, the Court
expressed the opinion that:

Parents have the natural right, as well as the moral and legal
duty, to care for their children, see to their upbringing and
safeguard their best interest and welfare. This authority and
responsibility may not be unduly denied the parents; neither
may it be renounced by them. Even when the parents are
estranged and their affection for each other is lost, the
attachment and feeling for their offsprings invariably remain
unchanged. Neither the law nor the courts allow this affinity to
suffer absent, of course, any real, grave and imminent threat to
the well-being of the child.
Since the incorporation of the law concerning adoption in the
Civil Code, there has been a pronounced trend to place
emphasis in adoption proceedings, not so much on the need of
childless couples for a child, as on the paramount interest of a
child who needs the love and care of parents. After the
passage of the Child and Youth Welfare Code and the Family
Code, the discernible trend has impelled the enactment of
Republic Act No. 8043 on Intercountry Adoptioncxxxix and
Republic Act No. 8552 establishing the rules on the domestic
adoption of Filipino children.cxl
The case at bar applies the relevant provisions of these recent
laws, such as the following policies in the Domestic Adoption
Act of 1998:
(a) To ensure that every child remains under the care and
custody of his/her parent(s) and be provided with love, care,
understanding and security towards the full and harmonious
development of his/her personality.cxli
(b) In all matters relating to the care, custody and adoption of a
child, his/her interest shall be the paramount consideration in
accordance with the tenets set forth in the United Nations (UN)
Convention on the Rights of the Child.cxlii
(c) To prevent the child from unnecessary separation from
his/her biological parent(s).cxliii
Inasmuch as the Philippines is a signatory to the United
Nations Convention on the Rights of the Child, the government
and its officials are duty bound to comply with its mandates. Of
particular relevance to instant case are the following
provisions:
States Parties shall respect the responsibilities, rights and
duties of parents . . . to provide, in a manner consistent with
the evolving capacities of the child, appropriate direction and
guidance in the exercise by the child of the rights recognized in
the present Convention.cxliv
States Parties shall respect the right of the child who is
separated from one or both parents to maintain personal
relations and direct contact with both parents on a regular
basis, except if it is contrary to the childs best interests.cxlv
A child whose parents reside in different States shall have the
right to maintain on a regular basis, save in exceptional
circumstances personal relations and direct contacts with both
parents . . .cxlvi

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

Republic
SUPREME
Manila

of

the

Philippines
COURT

SECOND DIVISION
G.R. No. 79955 January 27, 1989
IN THE MATTER OF THE PETITION FOR A WRIT OF
HABEAS CORPUS OF MINOR ANGELIE ANNE C.
CERVANTES, NELSON L. CERVANTES and ZENAIDA
CARREON
CERVANTES,
petitioners,
vs.
GINA CARREON FAJARDO and CONRADO FAJARDO,
respondents.
Yolanda F. Lim for petitioners.
Voltaire C. Campomanes for respondents.
RESOLUTION

PADILLA, J.:
This is a petition for a writ of Habeas Corpus filed with this
Court over the person of the minor Angelie Anne Cervantes. In
a resolution, dated 5 October 1987, the Court resolved to issue
the writ returnable to the Executive Judge, Regional Trial Court
of Pasig at the hearing of 12 October 1987 at 8:30 a.m. Said
Judge was directed to hear the case and submit his report and
recommendation to the Court.
On 3 December 1987, said Executive Judge, Regional Trial
Court of Pasig submitted to the Court his report and
recommendation, also dated 3 December 1987.
It appears that the minor was born on 14 February 1987 to
respondents Conrado Fajardo and Gina Carreon, who are
common-law husband and wife. Respondents offered the child
for adoption to Gina Carreon's sister and brother-in-law, the
herein petitioners Zenaida Carreon-Cervantes and Nelson
Cervantes, spouses, who took care and custody of the child
when she was barely two (2) weeks old. An Affidavit of Consent
to the adoption of the child by herein petitioners, was also
executed by respondent Gina Carreon on 29 April 1987. 1
The appropriate petition for adoption (Sp. Proc. No. 057-B) was
filed by herein petitioners over the child before the Regional
Trial Court of Rizal, Fourth Judicial District, Branch 67 which,
on 20 August 1987, rendered a decision 2 granting the petition.
The child was then known as Angelie Anne Fajardo. The court
ordered that the child be "freed from parental authority of her
natural parents as well as from legal obligation and
maintenance to them and that from now on shall be, for all
legal intents and purposes, known as Angelie Anne Cervantes,
a child of herein petitioners and capable of inheriting their
estate ." 3
Sometime in March or April 1987, the adoptive parents, herein
petitioners Nelson and Zenaida Cervantes, received a letter

from the respondents demanding to be paid the amount of

P150,000.00, otherwise, they would get back their child.
Petitioners refused to accede to the demand.
As a result, on 11 September 1987, while petitioners were out
at work, the respondent Gina Carreon took the child from her
"yaya" at the petitioners' residence in Angono, Rizal, on the
pretext that she was instructed to do so by her mother.
Respondent Gina Carreon brought the child to her house in
Paraaque. Petitioners thereupon demanded the return of the
child, but Gina Carreon refused, saying that she had no desire
to give up her child for adoption and that the affidavit of
consent to the adoption she had executed was not fully
explained to her. She sent word to the petitioners that she will,
however, return the child to the petitioners if she were paid the
amount of P150,000.00.
Felisa Tansingco, the social worker who had conducted the
case study on the adoption and submitted a report thereon to
the Regional Trial Court of Rizal in the adoption case, testified
on 27 October 1987 before the Executive Judge, Regional Trial
Court of Pasig in connection with the present petition. She
declared that she had interviewed respondent Gina Carreon on
24 June 1987 in connection with the contemplated adoption of
the child. During the interview, said respondent manifested to
the social worker her desire to have the child adopted by the
petitioners. 4
In all cases involving the custody, care, education and property
of children, the latter's welfare is paramount. The provision that
no mother shall be separated from a child under five (5) years
of age, will not apply where the Court finds compelling reasons
to rule otherwise. 5 In all controversies regarding the custody of
minors, the foremost consideration is the moral, physical and
social welfare of the child concerned, taking into account the
resources and moral as well as social standing of the
contending parents. Never has this Court deviated from this
criterion. 6
It is undisputed that respondent Conrado Fajardo is legally
married to a woman other than respondent Gina Carreon, and
his relationship with the latter is a common-law husband and
wife relationship. His open cohabitation with co-respondent
Gina Carreon will not accord the minor that desirable
atmosphere where she can grow and develop into an upright
and moral-minded person. Besides, respondent Gina Carreon
had previously given birth to another child by another married
man with whom she lived for almost three (3) years but who
eventually left her and vanished. For a minor (like Angelie Anne
C. Cervantes) to grow up with a sister whose "father" is not her
true father, could also affect the moral outlook and values of
said minor. Upon the other hand, petitioners who are legally
married appear to be morally, physically, financially, and
socially capable of supporting the minor and giving her a future
better than what the natural mother (herein respondent Gina
Carreon), who is not only jobless but also maintains an illicit
relation with a married man, can most likely give her.
Besides, the minor has been legally adopted by petitioners with
the full knowledge and consent of respondents. A decree of
adoption has the effect, among others, of dissolving the

authority vested in natural parents over the adopted child,

except where the adopting parent is the spouse of the natural
parent of the adopted, in which case, parental authority over
the adopted shall be exercised jointly by both spouses. 7 The
adopting parents have the right to the care and custody of the
adopted child 8 and exercise parental authority and
responsibility over him. 9
ACCORDINGLY, and as recommended by the Executive
Judge, Regional Trial Court of Pasig, Hon. Eutropio Migrino,
the Petition is GRANTED. The custody and care of the minor
Angelie Anne Cervantes are hereby granted to petitioners to
whom they properly belong, and respondents are ordered (if
they still have not) to deliver said minor to the petitioners
immediately upon notice hereof This resolution is immediately
executory.
SO ORDERED.

Republic
SUPREME
Manila

of

the

Philippines
COURT

THIRD DIVISION

G.R. No. 85044 June 3, 1992

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

FELICIANO, J.:
On 20 October 1982, Adelberto Bundoc, then a minor of 10
years of age, shot Jennifer Tamargo with an air rifle causing
injuries which resulted in her death. Accordingly, a civil
complaint for damages was filed with the Regional Trial Court,
Branch 20, Vigan, Ilocos Sur, docketed as Civil Case No. 3457V, by petitioner Macario Tamargo, Jennifer's adopting parent,
and petitioner spouses Celso and Aurelia Tamargo, Jennifer's
natural parents against respondent spouses Victor and Clara
Bundoc, Adelberto's natural parents with whom he was living at
the time of the tragic incident. In addition to this case for
damages, a criminal information or Homicide through Reckless
Imprudence was filed [Criminal Case No. 1722-V] against
Adelberto Bundoc. Adelberto, however, was acquitted and
exempted from criminal liability on the ground that he bad
acted without discernment.
Prior to the incident, or on 10 December 1981, the spouses
Sabas and Felisa Rapisura had filed a petition to adopt the
minor Adelberto Bundoc in Special Proceedings No. 0373-T
before the then Court of First Instance of Ilocos Sur. This
petition for adoption was grunted on, 18 November 1982, that
is, after Adelberto had shot and killed Jennifer.
In their Answer, respondent spouses Bundoc, Adelberto's
natural parents, reciting the result of the foregoing petition for
adoption, claimed that not they, but rather the adopting
parents, namely the spouses Sabas and Felisa Rapisura, were
indispensable parties to the action since parental authority had
shifted to the adopting parents from the moment the successful
petition for adoption was filed.
Petitioners in their Reply contended that since Adelberto
Bundoc was then actually living with his natural parents,
parental authority had not ceased nor been relinquished by the
mere filing and granting of a petition for adoption.
The trial court on 3 December 1987 dismissed petitioners'
complaint, ruling that respondent natural parents of Adelberto
indeed were not indispensable parties to the action.

Petitioners received a copy of the trial court's Decision on 7

December 1987. Within the 15-day reglementary period, or on
14 December 1987, petitioners filed a motion for
reconsideration followed by a supplemental motion for
reconsideration on 15 January 1988. It appearing, however,
that the motions failed to comply with Sections 4 and 5 of Rule
15 of the Revised Rules of Court that notice of the motion
shall be given to all parties concerned at least three (3) days
before the hearing of said motion; and that said notice shall
state the time and place of hearing both motions were
denied by the trial court in an Order dated 18 April 1988. On 28
April 1988, petitioners filed a notice of appeal. In its Order
dated 6 June 1988, the trial court dismissed the notice at
appeal, this time ruling that the notice had been filed beyond
the 15-day reglementary period ending 22 December 1987.
Petitioners went to the Court of Appeals on a petition for
mandamus and certiorari questioning the trial court's Decision
dated 3 December 1987 and the Orders dated 18 April 1988
and 6 June 1988, The Court of Appeals dismissed the petition,
ruling that petitioners had lost their right to appeal.
In the present Petition for Review, petitioners once again
contend that respondent spouses Bundoc are the
indispensable parties to the action for damages caused by the
acts of their minor child, Adelberto Bundoc. Resolution of this
Petition hinges on the following issues: (1) whether or not
petitioners, notwithstanding loss of their right to appeal, may
still file the instant Petition; conversely, whether the Court may
still take cognizance of the case even through petitioners'
appeal had been filed out of time; and (2) whether or not the
effects of adoption, insofar as parental authority is concerned
may be given retroactive effect so as to make the adopting
parents the indispensable parties in a damage case filed
against their adopted child, for acts committed by the latter,
when actual custody was yet lodged with the biological
parents.
1. It will be recalled that, petitioners' motion (and supplemental
motion) for reconsideration filed before the trial court, not
having complied with the requirements of Section 13, Rule 41,
and Section 4, Rule 15, of the Revised Rules of Court, were
considered pro forma and hence did not interrupt and suspend
the reglementary period to appeal: the trial court held that the
motions, not having contained a notice of time and place of
hearing, had become useless pieces of paper which did not
interrupt the reglementary period. 1 As in fact repeatedly held
by this Court, what is mandatory is the service of the motion on
the opposing counsel indicating the time and place of hearing. 2
In view, however, of the nature of the issue raised in the
instant. Petition, and in order that substantial justice may be
served, the Court, invoking its right to suspend the application
of technical rules to prevent manifest injustice, elects to treat
the notice of appeal as having been seasonably filed before the
trial court, and the motion (and supplemental motion) for
reconsideration filed by petitioner in the trial court as having
interrupted the reglementary period for appeal. As the Court
held in Gregorio v. Court of Appeals: 3

Dismissal of appeal; purely on technical grounds is frowned

upon where the policy of the courts is to encourage hearings of
appeal on their merits. The rules of procedure ought not be
applied in a very rigid technical sense, rules of procedure are
used only to help secure not override, substantial justice. if d
technical and rigid enforcement of the rules is made their aim
would be defeated. 4
2. It is not disputed that Adelberto Bundoc's voluntary act of
shooting Jennifer Tamargo with an air rifle gave rise to a cause
of action on quasi-delict against him. As Article 2176 of the Civil
Code provides:
Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict
...
Upon the other hand, the law imposes civil liability upon the
father and, in case of his death or incapacity, the mother, for
any damages that may be caused by a minor child who lives
with them. Article 2180 of the Civil Code reads:
The obligation imposed by article 2176 is demandable not only
for one's own acts or omissions, but also for those of persons
for whom one is responsible.
The father and, in case of his death or incapacity, the mother,
are responsible for the damages caused by the minor children
who live in their company.
xxx xxx xxx
The responsibility treated of in this Article shall cease when the
person herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.
(Emphasis supplied)
This principle of parental liability is a species of what is
frequently designated as vicarious liability, or the doctrine of
"imputed negligence" under Anglo-American tort law, where a
person is not only liable for torts committed by himself, but also
for torts committed by others with whom he has a certain
relationship and for whom he is responsible. Thus, parental
liability is made a natural or logical consequence of the duties
and responsibilities of parents their parental authority
which includes the instructing, controlling and disciplining of the
child. 5 The basis for the doctrine of vicarious liability was
explained by the Court in Cangco v. Manila Railroad Co. 6 in
the following terms:
With respect to extra-contractual obligation arising from
negligence, whether of act or omission, it is competent for the
legislature to elect and our Legislature has so elected to
limit such liability to cases in which the person upon whom
such an obligation is imposed is morally culpable or, on the
contrary, for reasons of public policy. to extend that liability,
without regard to the lack of moral culpability, so as to include
responsibility for the negligence of those persons whose acts
or omissions are imputable, by a legal fiction, to others who
are in a position to exercise an absolute or limited control over

them. The legislature which adopted our Civil Code has elected
to limit extra-contractual liability with certain well-defined
exceptions to cases in which moral culpability can be
directly imputed to the persons to be charged. This moral
responsibility may consist in having failed to exercise due care
in one's own acts, or in having failed to exercise due care in
the selection and control of one's agent or servants, or in the
control of persons who, by reasons of their status, occupy a
position of dependency with respect to the person made liable
for their conduct. 7 (Emphasis Supplied)
The civil liability imposed upon parents for the torts of their
minor children living with them, may be seen to be based upon
the parental authority vested by the Civil Code upon such
parents. The civil law assumes that when an unemancipated
child living with its parents commits a tortious acts, the parents
were negligent in the performance of their legal and natural
duty closely to supervise the child who is in their custody and
control. Parental liability is, in other words, anchored upon
parental authority coupled with presumed parental dereliction
in the discharge of the duties accompanying such authority.
The parental dereliction is, of course, only presumed and the
presumption can be overtuned under Article 2180 of the Civil
Code by proof that the parents had exercised all the diligence
of a good father of a family to prevent the damage.
In the instant case, the shooting of Jennifer by Adelberto with
an air rifle occured when parental authority was still lodged in
respondent Bundoc spouses, the natural parents of the minor
Adelberto. It would thus follow that the natural parents who had
then actual custody of the minor Adelberto, are the
indispensable parties to the suit for damages.
The natural parents of Adelberto, however, stoutly maintain that
because a decree of adoption was issued by the adoption court
in favor of the Rapisura spouses, parental authority was vested
in the latter as adopting parents as of the time of the filing of
the petition for adoption that is, before Adelberto had shot
Jennifer which an air rifle. The Bundoc spouses contend that
they were therefore free of any parental responsibility for
Adelberto's allegedly tortious conduct.
Respondent Bundoc spouses rely on Article 36 of the Child and
Youth Welfare Code 8 which reads as follows:
Art. 36. Decree of Adoption. If, after considering the report
of the Department of Social Welfare or duly licensed child
placement agency and the evidence submitted before it, the
court is satisfied that the petitioner is qualified to maintain, care
for, and educate the child, that the trial custody period has
been completed, and that the best interests of the child will be
promoted by the adoption, a decree of adoption shall be
entered, which shall be effective he date the original petition
was filed. The decree shall state the name by which the child is
thenceforth to be known. (Emphasis supplied)
The Bundoc spouses further argue that the above Article 36
should be read in relation to Article 39 of the same Code:
Art. 39. Effect of Adoption. The adoption shall:

xxx xxx xxx

(2) Dissolve the authority vested in the natural parents, except
where the adopter is the spouse of the surviving natural parent;
xxx xxx xxx
(Emphasis supplied)
and urge that their Parental authority must be deemed to have
been dissolved as of the time the Petition for adoption was
filed.
The Court is not persuaded. As earlier noted, under the Civil
Code, the basis of parental liability for the torts of a minor child
is the relationship existing between the parents and the minor
child living with them and over whom, the law presumes, the
parents exercise supervision and control. Article 58 of the Child
and Youth Welfare Code, re-enacted this rule:
Article 58 Torts Parents and guardians are responsible for
the damage caused by the child under their parental authority
in accordance with the civil Code. (Emphasis supplied)
Article 221 of the Family Code of the Philippines 9 has similarly
insisted upon the requisite that the child, doer of the tortious
act, shall have beer in the actual custody of the parents sought
to be held liable for the ensuing damage:
Art. 221. Parents and other persons exercising parental
authority shall be civilly liable for the injuries and damages
caused by the acts or omissions of their unemancipated
children living in their company and under their parental
authority subject to the appropriate defenses provided by law.
(Emphasis supplied)
We do not believe that parental authority is properly regarded
as having been retroactively transferred to and vested in the
adopting parents, the Rapisura spouses, at the time the air rifle
shooting happened. We do not consider that retroactive effect
may be giver to the decree of adoption so as to impose a
liability upon the adopting parents accruing at a time when
adopting parents had no actual or physically custody over the
adopted child. Retroactive affect may perhaps be given to the
granting of the petition for adoption where such is essential to
permit the accrual of some benefit or advantage in favor of the
adopted child. In the instant case, however, to hold that
parental authority had been retroactively lodged in the
Rapisura spouses so as to burden them with liability for a
tortious act that they could not have foreseen and which they
could not have prevented (since they were at the time in the
United States and had no physical custody over the child
Adelberto) would be unfair and unconscionable. Such a result,
moreover, would be inconsistent with the philosophical and
policy basis underlying the doctrine of vicarious liability. Put a
little differently, no presumption of parental dereliction on the
part of the adopting parents, the Rapisura spouses, could have
arisen since Adelberto was not in fact subject to their control at
the time the tort was committed.
Article 35 of the Child and Youth Welfare Code fortifies the
conclusion reached above. Article 35 provides as follows:

Art. 35. Trial Custody. No petition for adoption shall be

finally granted unless and until the adopting parents are given
by the courts a supervised trial custody period of at least six
months to assess their adjustment and emotional readiness for
the legal union. During the period of trial custody, parental
authority shall be vested in the adopting parents. (Emphasis
supplied)

FIRST DIVISION

Under the above Article 35, parental authority is provisionally

vested in the adopting parents during the period of trial
custody, i.e., before the issuance of a decree of adoption,
precisely because the adopting parents are given actual
custody of the child during such trial period. In the instant case,
the trial custody period either had not yet begun or bad already
been completed at the time of the air rifle shooting; in any
case, actual custody of Adelberto was then with his natural
parents, not the adopting parents.

DECISION

Accordingly, we conclude that respondent Bundoc spouses,

Adelberto's natural parents, were indispensable parties to the
suit for damages brought by petitioners, and that the dismissal
by the trial court of petitioners' complaint, the indispensable
parties being already before the court, constituted grave abuse
of discretion amounting to lack or excess of jurisdiction.
WHEREFORE, premises considered, the Petition for Review is
hereby GRANTED DUE COURSE and the Decision of the
Court of Appeals dated 6 September 1988, in C.A.-G.R. No.
SP-15016 is hereby REVERSED and SET ASIDE. Petitioners'
complaint filed before the trial court is hereby REINSTATED
and this case is REMANDED to that court for further
proceedings consistent with this Decision. Costs against
respondent Bundoc spouses. This Decision is immediately
executory.
SO ORDERED.

[G.R. No. 143989. July 14, 2003]

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

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

xxx

xxx

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

xxx

xxx

13.
That herein petitioner being a widow, and living alone
in this city with only her household helps to attend to her, has
yearned for the care and show of concern from a son, but
respondent remained indifferent and would only come to Naga
to see her once a year.
14.
That for the last three or four years, the medical
check-up of petitioner in Manila became more frequent in view
of a leg ailment, and those were the times when petitioner

would need most the care and support from a love one, but
respondent all the more remained callous and utterly indifferent
towards petitioner which is not expected of a son.

On the issue of jurisdiction over the subject matter of the suit,

Section 5(c) of R.A. No. 8369 confers jurisdiction to this Court,
having been designated Family Court in A.M. No. 99-11-07 SC.

15.
That herein respondent has recently been jealous of
petitioners nephews and nieces whenever they would find time
to visit her, respondent alleging that they were only motivated
by their desire for some material benefits from petitioner.

On the matter of no cause of action, the test on the sufficiency

of the facts alleged in the complaint, is whether or not,
admitting the facts alleged, the Court could render a valid
judgment in accordance with the prayer of said complaint (De
Jesus, et al. vs. Belarmino, et al., 95 Phil. 365).

16.
That in view of respondents insensible attitude
resulting in a strained and uncomfortable relationship between
him and petitioner, the latter has suffered wounded feelings,
knowing that after all respondents only motive to his adoption
is his expectancy of his alleged rights over the properties of
herein petitioner and her late husband, clearly shown by his
recent filing of Civil Case No. 99-4463 for partition against
petitioner, thereby totally eroding her love and affection
towards respondent, rendering the decree of adoption,
considering respondent to be the child of petitioner, for all legal
purposes, has been negated for which reason there is no more
basis for its existence, hence this petition for revocation.40
Prior to the institution of the case, specifically on 22 March
1998, Republic Act (R.A.) No. 8552, also known as the
Domestic Adoption Act, went into effect. The new statute
deleted from the law the right of adopters to rescind a decree
of adoption.
Section 19 of Article VI of R.A. No. 8552 now reads:
SEC. 19. Grounds for Rescission of Adoption. Upon petition of
the adoptee, with the assistance of the Department if a minor
or if over eighteen (18) years of age but is incapacitated, as
guardian/counsel, the adoption may be rescinded on any of the
following grounds committed by the adopter(s): (a) repeated
physical and verbal maltreatment by the adopter(s) despite
having undergone counseling; (b) attempt on the life of the
adoptee; (c) sexual assault or violence; or (d) abandonment
and failure to comply with parental obligations.
Adoption, being in the best interest of the child, shall not
be subject to rescission by the adopter(s). However, the
adopter(s) may disinherit the adoptee for causes provided
in Article 919 of the Civil Code. (emphasis supplied)
Jose Melvin moved for the dismissal of the petition, contending
principally (a) that the trial court had no jurisdiction over the
case and (b) that the petitioner had no cause of action in view
of the aforequoted provisions of R.A. No. 8552. Petitioner
asseverated, by way of opposition, that the proscription in R.A.
No. 8552 should not retroactively apply, i.e., to cases where
the ground for rescission of the adoption vested under the
regime of then Article 34841 of the Civil Code and Article 192 42
of the Family Code.
In an order, dated 28 April 2000, the trial court held thusly:

Admittedly, Section 19, Article VI of R.A. No. 8552 deleted the

right of an adopter to rescind an adoption earlier granted under
the Family Code. Conformably, on the face of the petition,
indeed there is lack of cause of action.
Petitioner however, insists that her right to rescind long
acquired under the provisions of the Family Code should be
respected. Assuming for the sake of argument, that petitioner is
entitled to rescind the adoption of respondent granted on May
5, 1972, said right should have been exercised within the
period allowed by the Rules. From the averments in the
petition, it appears clear that the legal grounds for the petition
have been discovered and known to petitioner for more than
five (5) years, prior to the filing of the instant petition on
December 1, 1999, hence, the action if any, had already
prescribed. (Sec. 5, Rule 100 Revised Rules of Court)
WHEREFORE, in view of the foregoing consideration, the
petition is ordered dismissed.43
Via a petition for review on certiorari under Rule 45 of the 1997
Rules of Court, petitioner raises the following questions; viz:
1.
May the subject adoption, decreed on 05 May 1972,
still be revoked or rescinded by an adopter after the effectivity
of R.A. No. 8552?
2.

In the affirmative, has the adopters action prescribed?

A brief background on the law and its origins could provide

some insights on the subject. In ancient times, the Romans
undertook adoption to assure male heirs in the family.44 The
continuity of the adopters family was the primary purpose of
adoption and all matters relating to it basically focused on the
rights of the adopter. There was hardly any mention about the
rights of the adopted.45 Countries, like Greece, France, Spain
and England, in an effort to preserve inheritance within the
family, neither allowed nor recognized adoption. 46 It was only
much later when adoption was given an impetus in law and still
later when the welfare of the child became a paramount
concern.47 Spain itself which previously disfavored adoption
ultimately relented and accepted the Roman law concept of
43

44

40

45

41

46

42

47

adoption which, subsequently, was to find its way to the

archipelago. The Americans came and introduced their own
ideas on adoption which, unlike most countries in Europe,
made the interests of the child an overriding consideration. 48 In
the early part of the century just passed, the rights of children
invited universal attention; the Geneva Declaration of Rights of
the Child of 1924 and the Universal Declaration of Human
Rights of 1948,49 followed by the United Nations Declarations
of the Rights of the Child,50 were written instruments that would
also protect and safeguard the rights of adopted children. The
Civil Code of the Philippines51 of 1950 on adoption, later
modified by the Child and Youth Welfare Code52 and then by
the Family Code of the Philippines, 53 gave immediate statutory
acknowledgment to the rights of the adopted. In 1989, the
United Nations initiated the Convention of the Rights of the
Child. The Philippines, a State Party to the Convention,
accepted the principle that adoption was impressed with social
and moral responsibility, and that its underlying intent was
geared to favor the adopted child. R.A. No. 8552 secured these
rights and privileges for the adopted. Most importantly, it
affirmed the legitimate status of the adopted child, not only in
his new family but also in the society as well. The new law
withdrew the right of an adopter to rescind the adoption decree
and gave to the adopted child the sole right to sever the legal
ties created by adoption.
Petitioner, however, would insist that R.A. No. 8552 should not
adversely affect her right to annul the adoption decree, nor
deprive the trial court of its jurisdiction to hear the case, both
being vested under the Civil Code and the Family Code, the
laws then in force.
The concept of vested right is a consequence of the
constitutional guaranty of due process54 that expresses a
present fixed interest which in right reason and natural justice
is protected against arbitrary state action; 55 it includes not only
legal or equitable title to the enforcement of a demand but also
exemptions from new obligations created after the right has
become vested.56 Rights are considered vested when the right

48

49

50

to enjoyment is a present interest, 57 absolute, unconditional,

and perfect58 or fixed and irrefutable.
In Republic vs. Court of Appeals,59 a petition to adopt Jason
Condat was filed by Zenaida C. Bobiles on 02 February 1988
when the Child and Youth Welfare Code (Presidential Decree
No. 603) allowed an adoption to be sought by either spouse or
both of them. After the trial court had rendered its decision and
while the case was still pending on appeal, the Family Code of
the Philippines (Executive Order No. 209), mandating joint
adoption by the husband and wife, took effect. Petitioner
Republic argued that the case should be dismissed for having
been filed by Mrs. Bobiles alone and without being joined by
the husband. The Court concluded that the jurisdiction of the
court is determined by the statute in force at the time of
the commencement of the action. The petition to adopt
Jason, having been filed with the court at the time when
P.D. No. 603 was still in effect, the right of Mrs. Bobiles to file
the petition, without being joined by her husband, according to
the Court had become vested. In Republic vs. Miller,60 spouses
Claude and Jumrus Miller, both aliens, sought to adopt Michael
Madayag. On 29 July 1988, the couple filed a petition to
formalize Michaels adoption having theretofore been taken into
their care. At the time the action was commenced, P.D. No. 603
allowed aliens to adopt. After the decree of adoption and while
on appeal before the Court of Appeals, the Family Code was
enacted into law on 08 August 1988 disqualifying aliens from
adopting Filipino children. The Republic then prayed for the
withdrawal of the adoption decree. In discarding the argument
posed by the Republic, the Supreme Court ruled that the
controversy should be resolved in the light of the law
governing at the time the petition was filed.
It was months after the effectivity of R.A. No. 8552 that herein
petitioner filed an action to revoke the decree of adoption
granted in 1975. By then, the new law,61 had already abrogated
and repealed the right of an adopter under the Civil Code and
the Family Code to rescind a decree of adoption. Consistently
with its earlier pronouncements, the Court should now hold that
the action for rescission of the adoption decree, having been
initiated by petitioner after R.A. No. 8552 had come into force,
no longer could be pursued.
Interestingly, even before the passage of the statute, an action
to set aside the adoption is subject to the fiveyear bar rule
under Rule 10062 of the Rules of Court and that the adopter
would lose the right to revoke the adoption decree after the
lapse of that period. The exercise of the right within a
prescriptive period is a condition that could not fulfill the

51

57

52

58

53

59

54

60

55

61

56

62

requirements of a vested right entitled to protection. It must

also be acknowledged that a person has no vested right in
statutory privileges.63 While adoption has often been referred to
in the context of a right, the privilege to adopt is itself not
naturally innate or fundamental but rather a right merely
created by statute.64 It is a privilege that is governed by the
states determination on what it may deem to be for the best
interest and welfare of the child. 65 Matters relating to adoption,
including the withdrawal of the right of an adopter to nullify the
adoption decree, are subject to regulation by the State. 66
Concomitantly, a right of action given by statute may be taken
away at anytime before it has been exercised.67
While R.A. No. 8552 has unqualifiedly withdrawn from an
adopter a consequential right to rescind the adoption decree
even in cases where the adoption might clearly turn out to be
undesirable, it remains, nevertheless, the bounden duty of the
Court to apply the law. Dura lex sed lex would be the
hackneyed truism that those caught in the law have to live with.
It is still noteworthy, however, that an adopter, while barred
from severing the legal ties of adoption, can always for valid
reasons cause the forfeiture of certain benefits otherwise
accruing to an undeserving child. For instance, upon the
grounds recognized by law, an adopter may deny to an
adopted child his legitime and, by a will and testament, may
freely exclude him from having a share in the disposable
portion of his estate.
WHEREFORE, the assailed judgment of the court a quo is
AFFIRMED. No costs.
SO ORDERED.

THIRD DIVISION
[G.R. No. 148311. March 31, 2005]

HONORATO B. CATINDIG, petitioner.

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

IN THE MATTER OF THE ADOPTION OF STEPHANIE

NATHY ASTORGA GARCIA

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.

63

Let copy of this Decision be furnished the National Statistics

Office for record purposes.

64

SO ORDERED.[4]

65

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.

66

67

On May 28, 2001,[6] the trial court denied petitioners motion for
reconsideration holding that there is no law or jurisprudence
allowing an adopted child to use the surname of his biological
mother as his middle name.
Hence, the present petition raising the issue of whether an
illegitimate child may use the surname of her mother as her
middle name when she is subsequently adopted by her natural
father.
Petitioner submits that the trial court erred in depriving
Stephanie of a middle name as a consequence of adoption
because: (1) there is no law prohibiting an adopted child from
having a middle name in case there is only one adopting
parent; (2) it is customary for every Filipino to have as middle
name the surname of the mother; (3) the middle name or initial
is a part of the name of a person; (4) adoption is for the benefit
and best interest of the adopted child, hence, her right to bear
a proper name should not be violated; (5) permitting Stephanie
to use the middle name Garcia (her mothers surname) avoids
the stigma of her illegitimacy; and; (6) her continued use of
Garcia as her middle name is not opposed by either the
Catindig or Garcia families.
The Republic, through the Office of the Solicitor General
(OSG), agrees with petitioner that Stephanie should be
permitted to use, as her middle name, the surname of her
natural mother for the following reasons:
First, it is necessary to preserve and maintain Stephanies
filiation with her natural mother because under Article 189 of
the Family Code, she remains to be an intestate heir of the
latter. Thus, to prevent any confusion and needless hardship in
the future, her relationship or proof of that relationship with her
natural mother should be maintained.
Second, there is no law expressly prohibiting Stephanie to use
the surname of her natural mother as her middle name. What
the law does not prohibit, it allows.
Last, it is customary for every Filipino to have a middle name,
which is ordinarily the surname of the mother. This custom has
been recognized by the Civil Code and Family Code. In fact,
the Family Law Committees agreed that the initial or surname
of the mother should immediately precede the surname of the
father so that the second name, if any, will be before the
surname of the mother.[7]
We find merit in the petition.
Use Of Surname Is Fixed By Law
For all practical and legal purposes, a man's name is the
designation by which he is known and called in the community
in which he lives and is best known. It is defined as the word or
combination of words by which a person is distinguished from
other individuals and, also, as the label or appellation which he
bears for the convenience of the world at large addressing him,
or in speaking of or dealing with him.[8] It is both of personal as
well as public interest that every person must have a name.

The name of an individual has two parts: (1) the given or

proper name and (2) the surname or family name. The given
or proper name is that which is given to the individual at birth or
at baptism, to distinguish him from other individuals. The
surname or family name is that which identifies the family to
which he belongs and is continued from parent to child. The
given name may be freely selected by the parents for the child,
but the surname to which the child is entitled is fixed by law.[9]
Thus, Articles 364 to 380 of the Civil Code provides the
substantive rules which regulate the use of 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
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,

(2) Add the Roman numerals II, III, and so on.
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.
The middle name or the mothers surname is only considered in
Article 375(1), quoted above, in case there is identity of names
and surnames between ascendants and descendants, in which
case, the middle name or the mothers surname shall be
added.
Notably, the law is likewise silent as to what middle name
an adoptee may use. Article 365 of the Civil Code merely
provides that an adopted child shall bear the surname of the
adopter. Also, Article 189 of the Family Code, enumerating the
legal effects of adoption, is likewise silent on the matter, thus:
"(1) For civil purposes, the adopted shall be deemed to be a
legitimate child of the adopters and both shall acquire the
reciprocal rights and obligations arising from the relationship of
parent and child, including the right of the adopted to use the
surname of the adopters;
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 childs mother as his middle name. In the
Minutes of the Joint Meeting of the Civil Code and Family Law
Committees, the members approved the suggestion that the
initial or surname of the mother should immediately
precede the surname of the father, thus
Justice Caguioa commented that there is a difference between
the use by the wife of the surname and that of the child
because the fathers surname indicates the family to which
he belongs, for which reason he would insist on the use of
the fathers surname by the child but that, if he wants to,
the child may also use the surname of the mother.
Justice Puno posed the question: If the child chooses to use
the surname of the mother, how will his name be written?
Justice Caguioa replied that it is up to him but that his point is
that it should be mandatory that the child uses the
surname of the father and permissive in the case of the
surname of the mother.
Prof. Baviera remarked that Justice Caguioas point is covered
by the present Article 364, which reads:

Legitimate and legitimated children shall principally use the

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

1989, when the Philippines, as a State Party to the

Convention of the Rights of the Child initiated by the
United Nations, accepted the principle that adoption is
impressed with social and moral responsibility, and that
its underlying intent is geared to favor the adopted child.[18]
Republic Act No. 8552, otherwise known as the Domestic
Adoption Act of 1998,[19] secures these rights and privileges for
the adopted.[20]
One of the effects of adoption is that the adopted is deemed to
be a legitimate child of the adopter for all intents and purposes
pursuant to Article 189[21] of the 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 of the members of the Civil Code and Family Law
Committees as earlier discussed. In fact, it is a Filipino custom
that the initial or surname of the mother should immediately
precede the surname of the father.
Additionally, as aptly stated by both parties, Stephanies
continued use of her mothers surname (Garcia) as her middle
name will maintain her maternal lineage. It is to be noted that
Article 189(3) of the Family Code and Section 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
mothers surname as her middle name will not only sustain her
continued loving relationship with her mother but will also
eliminate the stigma of her illegitimacy.
Liberal Construction of
Adoption Statutes In Favor Of
Adoption
It is a settled rule that adoption statutes, being humane and
salutary, should be liberally construed to carry out the
beneficent purposes of adoption.[25] The interests and welfare
of the adopted child are of primary and paramount
consideration,[26] hence, every reasonable intendment should
be sustained to promote and fulfill these noble and
compassionate objectives of the law.[27]
Lastly, Art. 10 of the New Civil Code provides that:
In case of doubt in the interpretation or application of laws, it is
presumed that the lawmaking body intended right and justice to
prevail.

This provision, according to the Code Commission, is

necessary so that it may tip the scales in favor of right and
justice when the law is doubtful or obscure. It will strengthen
the determination of the courts to avoid an injustice which may
apparently be authorized by some way of interpreting the law.
[28]

Hence, since there is no law prohibiting an illegitimate child

adopted by her natural father, like Stephanie, to use, as middle
name her mothers surname, we find no reason why she should
not be allowed to do so.
WHEREFORE, the petition is GRANTED. The assailed
Decision is partly MODIFIED in the sense that Stephanie
should be allowed to use her mothers surname GARCIA as her
middle name.
Let the corresponding entry of her correct and complete name
be entered in the decree of adoption.
SO ORDERED.

Present:

PUNO, J., Chairperson,

- versus SANDOVAL-GUTIERREZ,

CORONA,

AZCUNA, and

GARCIA, JJ.
MAOWEE DABAN LACSON
and MAONAA DABAN Promulgated:
LACSON, represented by their
mother and guardian ad-litem,
LEA DABAN LACSON,

August 28, 2006

Respondents.

x----------------------------------------------------------------------------------------x

DECISION

GARCIA, J.:

Petitioner Edward V. Lacson, father of the respondent

sisters Maowee Daban Lacson and Maonaa Daban Lacson
and husband of their mother and guardian ad-litem, Lea Daban
Lacson, has come to this Court via this petition for review
under Rule 45 of the Rules of Court to seek the reversal and
setting aside of the Decision68 dated July 13, 2001 of the Court
of Appeals (CA) in CA-G.R. CV No. 60203, as reiterated in its
Resolution69 of October 18, 2001 denying his motion for
reconsideration.

SECOND DIVISION

EDWARD V. LACSON,

G.R. No. 150644

Petitioner,

68

69

From the petition and its annexes, the respondents

reply thereto, and other pleadings, the Court gathers the
following facts:

The sisters Maowee Daban Lacson and Maonaa

Daban Lacson are legitimate daughters of petitioner Edward V.
Lacson and his wife, Lea Daban Lacson. Maowee was born on
December 4, 1974, while Maonaa, a little less than a year later.
Not long after the birth of Maonaa, petitioner left the conjugal
home in Molo, Iloilo City, virtually forcing mother and children to
seek, apparently for financial reason, shelter somewhere else.
For a month, they stayed with Leas mother-in-law, Alicia
Lacson, then with her (Leas) mother and then with her brother
Noel Daban. After some time, they rented an apartment only to
return later to the house of Leas mother. As the trial court aptly
observed, the sisters and their mother, from 1976 to 1994, or
for a period of eighteen (18) years, shuttled from one dwelling
place to another not their own.

financial constraint for his inability to provide the P12,000.00

monthly allowance prayed for in the complaint.

As applied for and after due hearing, the trial court granted the
sisters Maowee and Maonaa support pendente lite at
P12,000.00 per month, subject to the schedule of payment and
other conditions set forth in the courts corresponding order of
May 13, 1996.71

Following trial, the RTC rendered on June 26, 1997

judgment finding for the plaintiff sisters, as represented by their
mother. In that judgment, the trial court, following an elaborate
formula set forth therein, ordered their defendant father Edward
to pay them a specific sum which represented 216 months, or
18 years, of support in arrears. The fallo of the trial courts
decision72 reads:

It appears that from the start of their estrangement, Lea did not
badger her husband Edward for support, relying initially on his
commitment memorialized in a note dated December 10, 1975
to give support to his daughters. As things turned out, however,
Edward reneged on his promise of support, despite Leas
efforts towards having him fulfill the same. Lea would admit,
though, that Edward occasionally gave their children meager
amounts for school expenses. Through the years and up to the
middle part of 1992, Edwards mother, Alicia Lacson, also gave
small amounts to help in the schooling of Maowee and
Maonaa, both of whom eventually took up nursing at St. Pauls
College in Iloilo City. In the early part of 1995 when Lea, in
behalf of her two daughters, filed a complaint against Edward
for support before the Regional Trial Court of Iloilo City, Branch
33, Maowee was about to graduate.

In that complaint dated January 30, 1995, as

amended,70 docketed as Civil Case No. 22185, Maowee and
Maonaa, thru their mother, averred that their father Edward,
despite being gainfully employed and owning several pieces of
valuable lands, has not provided them support since 1976.
They also alleged that, owing to years of Edwards failure and
neglect, their mother had, from time to time, borrowed money
from her brother Noel Daban. As she would later testify, Lea
had received from Noel, by way of a loan, as much as
P400,000.00 to P600,000.00.

In his Answer, Edward alleged giving to Maowee and

Maonaa sufficient sum to meet their needs. He explained,
however, that his lack of regular income and the unproductivity
of the land he inherited, not his neglect, accounted for his
failure at times to give regular support. He also blamed
70

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72

WHEREFORE, judgment is hereby rendered:

1)
Ordering defendant to compensate plaintiffs
support in arrears in the amount of TWO MILLION FOUR
HUNDRED NINETY-SIX THOUSAND (P2, 496,000.00)
PESOS from which amount shall be deducted ONE HUNDRED
TWENTY-FOUR (P124,000.00) PESOS that which they
received from defendant for two years and that which they
received by way of support pendent lite;

2)
Ordering defendant to pay TWENTY THOUSAND
(P20,000.00) PESOS as attorneys fees; and

3)

In time, Edward moved for reconsideration, but his

motion was denied by the appellate court in its equally assailed
Resolution of October 18, 2001.74

Hence, Edwards present recourse on his submission

that the CA erred -

I.
XXX WHEN IT AFFIRMED THE GRANT OF
SUPPORT IN ARREARS FROM 1976 TO 1994.

II.
XXX IN AFFIRMING THE ALLEGED ADVANCES
OF SUPPORT BY RESPONDENTS UNCLE NOEL DABAN.

Pay costs.

SO ORDERED.

Therefrom, Edward appealed to the CA whereat his

recourse was docketed as CA-G.R. CV. No. 60203.

Eventually, the CA, in the herein assailed Decision

dated July 13, 2001,73 dismissed Edwards appeal, disposing as
follows;

III.
XXX IN AFFIRMING THE AWARD OF SUPPORT
EVEN IF PETITIONER IS NOT FINANCIALLY CAPABLE OF
PROVIDING THE SAME TO RESPONDENTS.

IV.
XXX WHEN IT ORDERED PETITIONER TO
PROVIDE SUPPORT TO XXX RESPONDENTS EVEN IF
PETITIONERS OBLIGATION TO PROVIDE SUPPORT HAD
ALREADY BEEN COMPLETELY SATISFIED BY THE
PROCEEDS OF THE SALE OF HIS EXCLUSIVE PROPERTY
WHICH
WERE
ALL
APPROPRIATED
BY
THE
RESPONDENTS.

The petition lacks merit.

WHEREFORE, premises considered, the present

appeal is hereby DISMISSED and the appealed Decision in
Civil Case No. 22185 is hereby AFFIRMED.

Double costs against the defendant appellant [Edward

Lacson].

Petitioner admits being obliged, as father, to provide

support to both respondents, Maowee and Maonaa. It is his
threshold submission, however, that he should not be made to
pay support in arrears, i.e., from 1976 to 1994, no previous
extrajudicial, let alone judicial, demand having been made by
the respondents. He invokes the following provision of the
Family Code to complete his point:

SO ORDERED. (Words in bracket added.)

Article 203 The obligation to give support shall be
demandable from the time the person who has a right to
receive the same needs it for maintenance, but it shall not be
paid except from the date of judicial or extrajudicial demand.

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74

To petitioner, his obligation to pay under the

aforequoted provision starts from the filing of Civil Case No.
22185 in 1995, since only from that moment can it be said that
an effective demand for support was made upon him.

Petitioners above posture has little to commend itself.

For one, it conveniently glossed over the fact that he veritably
abandoned the respondent sisters even before the elder of the
two could celebrate her second birthday. To be sure, petitioner
could not plausibly expect any of the sisters during their tender
years to go through the motion of demanding support from him,
what with the fact that even their mother (his wife) found it
difficult during the period material to get in touch with him. For
another, the requisite demand for support appears to have
been made sometime in 1975. It may be that Lea made no
extrajudicial demand in the sense of a formal written demand in
terms and in the imperious tenor commonly used by legal
advocates in a demand letter. Nonetheless, what would pass
as a demand was, however, definitely made. Asking one to
comply with his obligation to support owing to the urgency of
the situation is no less a demand because it came by way of a
request or a plea. As it were, the trial court found that a
demand to sustain an award of support in arrears had been
made in this case and said so in its decision, thus:

From 1976, [respondents] mother now and then went

to their [paternal] grandmothers house by their father and
asked for support; this notwithstanding their fathers
commitment for this purpose which the latter embodied in a
note dated December 10, 1975. For twenty-one years that they
needed support, [petitioner] complied with his obligation for
only two (2) years.

xxx

xxx
xxx

Last December 10, 1975, [petitioner] committed self

for the support of his children, the [respondents] herein but
failing, plaintiffs mother asked extrajudicially for her childrens
support since 1976, when she went to her mothers house. . 75
(Words in bracket and underscoring added.)

The appellate court made a parallel finding on the

demand angle, formulating the same in the following wise:

make a formal demand therefor from him. [Petitioners]

insistence on requiring a formal demand from his wife is truly
pointless, in the face of his acknowledgment of and
commitment to comply with such obligation through a note in
his own handwriting. Said note [stating that he will sustain his
two daughters Maowee and Maonaa] also stated as requested
by their mother thus practically confirming the fact of such
demand having been made by [respondents] mother. The trial
court thus correctly ruled that [petitioners] obligation to pay
support in arrears should commence from 1976. 76 (Words in
bracket added).

The Court finds no adequate reason to disturb the

factual determination of the CA confirmatory of that of the trial
court respecting the demand Lea made on the petitioner to
secure support for the respondents. As a matter of long and
sound appellate practice, factual findings of the CA are
accorded respect, if not finality, save for the most compelling
and cogent reasons.77 Not one of the well-recognized
exceptions to this rule on conclusiveness of factual findings
appear to obtain in this case. Accordingly, the Court cannot
grant the petitioners plea for a review of the CAs findings
bearing on the actuality that, as basis for an award of support
in arrears, an extrajudicial demand for support had been made
on the petitioner as evidenced by the December 10, 1975 note
adverted to. Lest it be overlooked, the jurisdiction of the Court
in a petition for review, as here, is generally limited to
correction of errors of law. Complementing that postulate is the
rule that the Court is not bound to analyze and weigh all over
again the evidence already considered in the proceedings
below,78 except when, as earlier indicated, compelling reasons
demand a review of the factual conclusions drawn from such
evidence.

Petitioners second specification of error touches on

the CAs affirmatory holding that respondents uncle, Noel
Daban, advanced the money for their support. Again,
petitioners lament on the matter is a veritable call for review of
factual determinations of the two courts below. It need not,
accordingly, detain us long. Suffice it to state in that regard
that, of their close relatives, the respondents appeared to have
stayed longest with their uncle, Noel Daban. Noteworthy also is
the fact that petitioner, from 1976 to 1994, only gave Maowee
and Maonaa token amounts for schooling when support
comprises everything indispensable for sustenance, dwelling,
clothing, medical attendance and education,79 or, in short,
whatever is necessary to keep a person alive. Logically, the
sisters would, thru their mother, turn to their uncle (Noel
Daban) for their sustenance and education when petitioner
76

We could not confer judicial approval upon

[petitioners] posture of trying to evade his responsibility to give
support to his daughters simply because their mother did not

77

75

79

78

failed to give the same, a failing which stretched from their preschooling days to their college years. Since such failure has
been established, it is not amiss to deduce, as did the trial
court and the CA, that Noel Daban who, owing to consideration
of kinship, had reasons to help, indeed lent his sister Lea
money to support her children.

Pursuant to Article 207 of the Family Code, Noel

Daban can rightfully exact reimbursement from the petitioner.
The provision reads:

When the person obliged to support another unjustly

refuses or fails to give support when urgently needed by the
latter, any third person may furnish support to the needy
individual, with right of reimbursement from the person obliged
to give support.

Mention may also be made that, contextually, the

resulting juridical relationship between the petitioner and Noel
Daban is a quasi-contract,80 an equitable principle enjoining
one from unjustly enriching himself at the expense of another.

As for the amount of support in arrears, there is also

no reason to disturb the absolute figures arrived at by the two
courts below, appearing as they do to be reasonable and
proper. Arbitrariness respecting the determination of the final
numbers cannot plausibly be laid on the doorsteps of the CA,
and the trial court before it, considering that they fixed such
amount based on the varying needs of the respondents during
the years included in the computation and to the financial
resources of the petitioner, as proved by the evidence adduced
below. As a matter of law, the amount of support which those
related by marriage and family relationship is generally obliged
to give each other shall be in proportion to the resources or
means of the giver and to the needs of the recipient.81

with- the underlying judgment for support, assuming ex gratia

argumenti his obligation to pay support in arrears.

Petitioners above submission is flawed by the

premises holding it together. For firstly, it assumes as a fact
that what was sold for P5 Million was indeed his exclusive
property. But, as the CA aptly observed, there is no showing
whether the property subject of the transaction mentioned by
[the petitioner] is a conjugal property or [his] exclusive property,
as in fact [respondents] mother asserts that she and [petitioner]
had separately sold their respective shares on said property.82

Secondly, the respondent sisters were not party to the

sale aforementioned. Petitioners suggestion, therefore, that
part of the proceeds of the sale went to them and may be set
off for what petitioner owes them by way of support in arrears
is unacceptable, being at best gratuitous and self-serving.

Petitioner, unlike any good father of a family, has been

remiss in his duty to provide respondents with support
practically all throughout their growing years. At bottom, the
sisters have been deprived by a neglectful father of the basic
necessities in life as if it is their fault to have been born. This
disposition is thus nothing more than a belated measure to
right a wrong done the herein respondents who are no less
petitioners daughters.

WHEREFORE, the instant petition is DENIED and the

appealed CA decision and resolution are AFFIRMED.

Costs against petitioner.

SO ORDERED.

Petitioner closes his petition by urging the Court, as it

did the CA earlier, to consider a transaction that transpired after
the trial court had rendered judgment. We refer to the sale by
Lea of half of what petitioner claims to be his exclusive or
capital property. As the petitioner would have this Court
believe, Lea and the respondent sisters appropriated the P5
Million proceeds of the sale for themselves. Pressing on, he
alleged that the amount thus received from the sale is more
than enough to fully satisfy thus release him from complying

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