G.R. No.

185922 January 15, 2014

HEIRS OF DR. MARIANO FAVIS SR. represented by their co-heirs and Attorneys-in-Fact MERCEDES A. FAVIS and NELLY FAVIS-
VILLAFUERTE, Petitioners,
vs.
JUANA GONZALES, her son MARIANO G. FAVIS, MA. THERESA JOANA D. FAVIS, JAMES MARK D. FAVIS, all minors represented
herein by their parents SPS. MARIANO FAVIS and LARCELITA D. FAVIS,Respondents.

DECISION

PEREZ, J.:

Before this Court is a petition for review assailing the 10 April 2008 Decision 1 and 7 January 2009 Resolution2 of the Court of Appeals
in CA-G.R. CV No. 86497 dismissing petitioners complaint for annulment of the Deed of Donation for failure to exert earnest efforts
towards a compromise.

Dr. Mariano Favis, Sr. (Dr. Favis) was married to Capitolina Aguilar (Capitolina) with whom he had seven children named Purita A.
Favis, Reynaldo Favis, Consolacion Favis-Queliza, Mariano A. Favis, Jr., Esther F. Filart, Mercedes A. Favis, and Nelly Favis-Villafuerte.
When Capitolina died in March 1944, Dr. Favis took Juana Gonzales (Juana) as his common-law wife with whom he sired one child,
Mariano G. Favis (Mariano). When Dr. Favis and Juana got married in 1974, Dr. Favis executed an affidavit acknowledging Mariano as
one of his legitimate children. Mariano is married to Larcelita D. Favis (Larcelita), with whom he has four children, named Ma.
Theresa Joana D. Favis, Ma. Cristina D. Favis, James Mark D. Favis and Ma. Thea D. Favis.

Dr. Favis died intestate on 29 July 1995 leaving the following properties:

1. A parcel of residential land located at Bonifacio St. Brgy. 1, Vigan, Ilocos Sur, consisting an area of 898 square meters,
more or less, bounded on the north by Salvador Rivero; on the East by Eleutera Pena; on the South by Bonifacio St., and on
the West by Carmen Giron; x x x;

2. A commercial building erected on the aforesaid parcel of land with an assessed value of P126,000.00; x x x;

3. A parcel of residential land located in Brgy. VII, Vigan, Ilocos Sur, containing an area of 154 sq. ms., more or less, bounded
on the North by the High School Site; on the East by Gomez St., on the South by Domingo [G]o; and on the West by
Domingo Go; x x x;

4. A house with an assessed value of P17,600.00 x x x;

5. A parcel of orchard land located in Brgy. VI, Vigan, Ilocos Sur, containing an area of 2,257 sq. ma. (sic) more or less,
bounded on the North by Lot 1208; on the East by Mestizo River; on the South by Lot 1217 and on the West by Lot 1211-B,
1212 and 1215 x x x.3

Beginning 1992 until his death in 1995, Dr. Favis was beset by various illnesses, such as kidney trouble, hiatal hernia, congestive
heart failure, Parkinsons disease and pneumonia. He died of "cardiopulmonary arrest secondary to multi-organ/system failure
secondary to sepsis secondary to pneumonia."4

On 16 October 1994, he allegedly executed a Deed of Donation 5 transferring and conveying properties described in (1) and (2) in
favor of his grandchildren with Juana.

Claiming that said donation prejudiced their legitime, Dr. Favis children with Capitolina, petitioners herein, filed an action for
annulment of the Deed of Donation, inventory, liquidation and partition of property before the Regional Trial Court (RTC) of Vigan,
Ilocos Sur, Branch 20 against Juana, Spouses Mariano and Larcelita and their grandchildren as respondents.

In their Answer with Counterclaim, respondents assert that the properties donated do not form part of the estate of the late Dr.
Favis because said donation was made inter vivos, hence petitioners have no stake over said properties. 6

The RTC, in its Pre-Trial Order, limited the issues to the validity of the deed of donation and whether or not respondent Juana and
Mariano are compulsory heirs of Dr. Favis.7

In a Decision dated 14 November 2005, the RTC nullified the Deed of Donation and cancelled the corresponding tax declarations.
The trial court found that Dr. Favis, at the age of 92 and plagued with illnesses, could not have had full control of his mental
capacities to execute a valid Deed of Donation. Holding that the subsequent marriage of Dr. Favis and Juana legitimated the status of
Mariano, the trial court also declared Juana and Mariano as compulsory heirs of Dr. Favis. The dispositive portion
reads:WHEREFORE, in view of all the foregoing considerations, the Deed of Donation dated October 16, 1994 is hereby annulled and
the corresponding tax declarations issued on the basis thereof cancelled. Dr. Mariano Favis, Sr. having died without a will, his estate
would result to intestacy. Consequently, plaintiffs Heirs of Dr. Mariano Favis, Sr., namely Purita A. Favis, Reynaldo A. Favis,
Consolacion F. Queliza, Mariano A. Favis, Jr., Esther F. Filart, Mercedes A. Favis, Nelly F. Villafuerte and the defendants Juana
Gonzales now deceased and Mariano G. Favis, Jr. shall inherit in equal shares in the estate of the late Dr. Mariano Favis, Sr. which
consists of the following:
 1. A parcel of residential land located at Bonifacio St. Brgy. 1, Vigan City, Ilocos Sur, consisting an area of 89 sq. meters more
or less, bounded on the north by Salvador Rivero; on the East by Eleutera Pena; on the South by Bonifacio St., and on the
West by Carmen Giron;

2. A commercial building erected on the aforesaid parcel of land with an assessed value of P126,000.00;

3. One-half (1/2) of the house located in Brgy. VI, Vigan City, Ilocos Sur[,] containing an area of 2,257 sq. meters more or
less, bounded on the north by Lot 1208; on the east by Mestizo River; on the South by Lot 1217 and on the West by Lot
1211-B, 1212 and 1215.

4. The accumulated rentals of the new Vigan Coliseum in the amount of One Hundred Thirty [Thousand] (P130,000.00)
pesos per annum from the death of Dr. Mariano Favis, Sr.8

Respondents interposed an appeal before the Court of Appeals challenging the trial courts nullification, on the ground of vitiated
consent, of the Deed of Donation in favor of herein respondents. The Court of Appeals ordered the dismissal of the petitioners
nullification case. However, it did so not on the grounds invoked by herein respondents as appellant.

The Court of Appeals motu proprio ordered the dismissal of the complaint for failure of petitioners to make an averment that
earnest efforts toward a compromise have been made, as mandated by Article 151 of the Family Code. The appellate court justified
its order of dismissal by invoking its authority to review rulings of the trial court even if they are not assigned as errors in the appeal.

Petitioners filed a motion for reconsideration contending that the case is not subject to compromise as it involves future legitime.

The Court of Appeals rejected petitioners contention when it ruled that the prohibited compromise is that which is entered
between the decedent while alive and compulsory heirs. In the instant case, the appellate court observed that while the present
action is between members of the same family it does not involve a testator and a compulsory heir. Moreover, the appellate court
pointed out that the subject properties cannot be considered as "future legitime" but are in fact, legitime, as the instant complaint
was filed after the death of the decedent.

Undaunted by this legal setback, petitioners filed the instant petition raising the following arguments:

1. The Honorable Court of Appeals GRAVELY and SERIOUSLY ERRED in DISMISSING the COMPLAINT.

2. Contrary to the finding of the Honorable Court of Appeals, the verification of the complaint or petition is not a mandatory
requirement.

3. The Honorable Court of Appeals seriously failed to appreciate that the filing of an intervention by Edward Favis had
placed the case beyond the scope of Article 151 of the Family Code.

4. Even assuming arguendo without admitting that the filing of intervention by Edward Favis had no positive effect to the
complaint filed by petitioners, it is still a serious error for the Honorable Court of Appeals to utterly disregard the fact that
petitioners had substantially complied with the requirements of Article 151 of the Family Code.

5. Assuming arguendo that petitioners cannot be construed as complying substantially with Article 151 of the Family Code,
still, the same should be considered as a non-issue considering that private respondents are in estoppel.

6. The dismissal of the complaint by the Honorable Court of Appeals amounts to grave abuse of discretion amounting to
lack and excess of jurisdiction and a complete defiance of the doctrine of primacy of substantive justice over strict
application of technical rules.

7. The Honorable Court of Appeals gravely and seriuosly erred in not affirming the decision of the Court a quo that the Deed
of Donation is void.9

In their Comment, respondents chose not to touch upon the merits of the case, which is the validity of the deed of donation.
Instead, respondents defended the ruling the Court of Appeals that the complaint is dismissible for failure of petitioners to allege in
their complaint that earnest efforts towards a compromise have been exerted.

The base issue is whether or not the appellate court may dismiss the order of dismissal of the complaint for failure to allege therein
that earnest efforts towards a compromise have been made. The appellate court committed egregious error in dismissing the
complaint. The appellate courts decision hinged on Article 151 of the Family Code, viz:

Art. 151. No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition
that earnest efforts toward a compromise have been made, but that the same have failed. If it is shown that no such efforts were in
fact made, the case must be dismissed.

This rule shall not apply to cases which may not be the subject of compromise under the Civil Code.
The appellate court correlated this provision with Section 1, par. (j), Rule 16 of the 1997 Rules of Civil Procedure, which provides:

Section 1. Grounds. Within the time for but before filing the answer to the complaint or pleading asserting a claim, a motion to
dismiss may be made on any of the following grounds:

xxxx

(j) That a condition precedent for filing the claim has not been complied with.

The appellate courts reliance on this provision is misplaced. Rule 16 treats of the grounds for a motion to dismiss the complaint. It
must be distinguished from the grounds provided under Section 1, Rule 9 which specifically deals with dismissal of the claim by the
court motu proprio. Section 1, Rule 9 of the 1997 Rules of Civil Procedure provides:

Section 1. Defenses and objections not pleaded. Defenses and objections not pleaded either in a motion to dismiss or in the
answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no
jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the
action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim.

Section 1, Rule 9 provides for only four instances when the court may motu proprio dismiss the claim, namely: (a) lack of jurisdiction
over the subject matter; (b) litis pendentia ; (c) res judicata ; and (d) prescription of action. 10Specifically in Gumabon v. Larin,11 cited
in Katon v. Palanca, Jr.,12 the Court held:

x x x [T]he motu proprio dismissal of a case was traditionally limited to instances when the court clearly had no jurisdiction over the
subject matter and when the plaintiff did not appear during trial, failed to prosecute his action for an unreasonable length of time or
neglected to comply with the rules or with any order of the court. Outside of these instances, any motu proprio dismissal would
amount to a violation of the right of the plaintiff to be heard. Except for qualifying and expanding Section 2, Rule 9, and Section 3,
Rule 17, of the Revised Rules of Court, the amendatory 1997 Rules of Civil Procedure brought about no radical change. Under the
new rules, a court may motu proprio dismiss a claim when it appears from the pleadings or evidence on record that it has no
jurisdiction over the subject matter; when there is another cause of action pending between the same parties for the same cause, or
where the action is barred by a prior judgment or by statute of limitations. x x x. 13

The error of the Court of Appeals is evident even if the consideration of the issue is kept within the confines of the language of
Section 1(j) of Rule 16 and Section 1 of Rule 9. That a condition precedent for filing the claim has not been complied with, a ground
for a motion to dismiss emanating from the law that no suit between members from the same family shall prosper unless it should
appear from the verified complaint that earnest efforts toward a compromise have been made but had failed, is, as the Rule so
words, a ground for a motion to dismiss. Significantly, the Rule requires that such a motion should be filed "within the time for but
before filing the answer to the complaint or pleading asserting a claim." The time frame indicates that thereafter, the motion to
dismiss based on the absence of the condition precedent is barred. It is so inferable from the opening sentence of Section 1 of Rule 9
stating that defense and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. There are, as just
noted, only four exceptions to this Rule, namely, lack of jurisdiction over the subject matter; litis pendentia ; res judicata ; and
prescription of action. Failure to allege in the complaint that earnest efforts at a compromise has been made but had failed is not
one of the exceptions. Upon such failure, the defense is deemed waived.

It was in Heirs of Domingo Valientes v. Ramas14 cited in P.L. Uy Realty Corporation v. ALS Management and Development
Corporation15 where we noted that the second sentence of Section 1 of Rule 9 does not only supply exceptions to the rule that
defenses not pleaded either in a motion to dismiss or in the answer are deemed waived, it also allows courts to dismiss cases motu
propio on any of the enumerated grounds. The tenor of the second sentence of the Rule is that the allowance of a motu propio
dismissal can proceed only from the exemption from the rule on waiver; which is but logical because there can be no ruling on a
waived ground.

Why the objection of failure to allege a failed attempt at a compromise in a suit among members of the same family is waivable was
earlier explained in the case of Versoza v. Versoza, 16 a case for future support which was dismissed by the trial court upon the
ground that there was no such allegation of infringement of Article 222 of the Civil Code, the origin of Article 151 of the Family Code.
While the Court ruled that a complaint for future support cannot be the subject of a compromise and as such the absence of the
required allegation in the complaint cannot be a ground for objection against the suit, the decision went on to state thus:

The alleged defect is that the present complaint does not state a cause of action. The proposed amendment seeks to complete it. An
amendment to the effect that the requirements of Article 222 have been complied with does not confer jurisdiction upon the lower
court. With or without this amendment, the subject-matter of the action remains as one for support, custody of children, and
damages, cognizable by the court below.

To illustrate, Tamayo v. San Miguel Brewery, Inc.,17 allowed an amendment which " merely corrected a defect in the allegation of
plaintiff-appellants cause of action, because as it then stood, the original complaint stated no cause of action." We there ruled out
as inapplicable the holding in Campos Rueda Corporation v. Bautista,18 that an amendment cannot be made so as to confer
jurisdiction on the court x x x. (Italics supplied).

Thus was it made clear that a failure to allege earnest but failed efforts at a compromise in a complaint among members of the same
family, is not a jurisdictional defect but merely a defect in the statement of a cause of action. Versoza was cited in a later case as an
instance analogous to one where the conciliation process at the barangay level was not priorly resorted to. Both were described as a
"condition precedent for the filing of a complaint in Court."19 In such instances, the consequence is precisely what is stated in the
present Rule. Thus:

x x x The defect may however be waived by failing to make seasonable objection, in a motion to dismiss or answer, the defect being
a mere procedural imperfection which does not affect the jurisdiction of the court. 20 (Underscoring supplied).

In the case at hand, the proceedings before the trial court ran the full course. The complaint of petitioners was answered by
respondents without a prior motion to dismiss having been filed. The decision in favor of the petitioners was appealed by
respondents on the basis of the alleged error in the ruling on the merits, no mention having been made about any defect in the
statement of a cause of action. In other words, no motion to dismiss the complaint based on the failure to comply with a condition
precedent was filed in the trial court; neither was such failure assigned as error in the appeal that respondent brought before the
Court of Appeals.

Therefore, the rule on deemed waiver of the non-jurisdictional defense or objection is wholly applicable to respondent.1wphi1 If
the respondents as parties-defendants could not, and did not, after filing their answer to petitioners complaint, invoke the
objection of absence of the required allegation on earnest efforts at a compromise, the appellate court unquestionably did not have
any authority or basis to motu propio order the dismissal of petitioners complaint.

Indeed, even if we go by the reason behind Article 151 of the Family Code, which provision as then Article 222 of the New Civil Code
was described as "having been given more teeth"21 by Section 1(j), Rule 16 of the Rule of Court, it is safe to say that the purpose of
making sure that there is no longer any possibility of a compromise, has been served. As cited in commentaries on Article 151 of the
Family Code

This rule is introduced because it is difficult to imagine a sudden and more tragic spectacle than a litigation between members of the
same family. It is necessary that every effort should be made towards a compromise before a litigation is allowed to breed hate and
passion in the family. It is known that a lawsuit between close relatives generates deeper bitterness than between strangers. 22

The facts of the case show that compromise was never an option insofar as the respondents were concerned. The impossibility of
compromise instead of litigation was shown not alone by the absence of a motion to dismiss but on the respondents insistence on
the validity of the donation in their favor of the subject properties. Nor could it have been otherwise because the Pre-trial Order
specifically limited the issues to the validity of the deed and whether or not respondent Juana and Mariano are compulsory heirs of
Dr. Favis. Respondents not only confined their arguments within the pre-trial order; after losing their case, their appeal was based
on the proposition that it was error for the trial court to have relied on the ground of vitiated consent on the part of Dr. Favis.

The Court of Appeals ignored the facts of the case that clearly demonstrated the refusal by the respondents to compromise. Instead
it ordered the dismissal of petitioners complaint on the ground that it did not allege what in fact was shown during the trial. The
error of the Court of Appeals is patent.

Unfortunately for respondents, they relied completely on the erroneous ruling of the Court of Appeals even when petitioners came
to us for review not just on the basis of such defective motu propio action but also on the proposition that the trial court correctly
found that the donation in question is flawed because of vitiated consent. Respondents did not answer this argument. The trial court
stated that the facts are:

x x x To determine the intrinsic validity of the deed of donation subject of the action for annulment, the mental state/condition of
the donor Dr. Mariano Favis, Sr. at the time of its execution must be taken into account. Factors such as his age, health and
environment among others should be considered. As testified to by Dr. Mercedes Favis, corroborated by Dr. Edgardo Alday and Dra.
Ofelia Adapon, who were all presented as expert witnesses, Dr. Mariano Favis, Sr. had long been suffering from Hiatal Hernia and
Parkinsons disease and had been taking medications for years. That a person with Parkinsons disease for a long time may not have
a good functioning brain because in the later stage of the disease, 1/3 of death develop from this kind of disease, and or dementia.
With respect to Hiatal Hernia, this is a state wherein organs in the abdominal cavity would go up to the chest cavity, thereby
occupying the space for the lungs causing the lungs to be compromised. Once the lungs are affected, there is less oxygenation to the
brain. The Hernia would cause the heart not to pump enough oxygen to the brain and the effect would be chronic, meaning, longer
lack of oxygenation to the brain will make a person not in full control of his faculties. Dr. Alday further testified that during his stay
with the house of Dr. Mariano Favis, Sr. (1992-1994), he noticed that the latter when he goes up and down the stairs will stop after
few seconds, and he called this pulmonary cripple a very advanced stage wherein the lungs not only one lung, but both lungs are
compromised. That at the time he operated on the deceased, the left and right lung were functioning but the left lung is practically
not even five (5%) percent functioning since it was occupied by abdominal organ. x x x.

Dr. Mariano Favis, Sr. during the execution of the Deed of Donation was already 92 years old; living with the defendants and those
years from 1993 to 1995 were the critical years when he was sick most of the time. In short, hes dependent on the care of his
housemates particularly the members of his family. It is the contention of the defendants though that Dr. Mariano Favis, Sr. had full
control of his mind during the execution of the Deed of Donation because at that time, he could go on with the regular way of life or
could perform his daily routine without the aid of anybody like taking a bath, eating his meals, reading the newspaper, watching
television, go to the church on Sundays, walking down the plaza to exercise and most importantly go to the cockpit arena and bet.
Dr. Ofelia Adapon, a neurology expert however, testified that a person suffering from Parkinsons disease when he goes to the
cockpit does not necessarily mean that such person has in full control of his mental faculties because anyone, even a retarded
person, a person who has not studied and have no intellect can go to the cockpit and bet. One can do everything but do not have
control of his mind. x x x That Hiatal Hernia creeps in very insidiously, one is not sure especially if the person has not complained and
no examination was done. It could be there for the last time and no one will know. x x x.

The Deed of Donation in favor of the defendants Ma. Theresa, Joana D. Favis, Maria Cristina D. Favis, James Mark D. Favis and Maria
Thea D. Favis, all of whom are the children of Mariano G. Favis, Jr. was executed on [16 October] 1994, seven (7) months after Dra.
Mercedes Favis left the house of Dr. Favis, Sr. at Bonifacio St., Vigan City, Ilocos Sur, where she resided with the latter and the
defendants.

Putting together the circumstances mentioned, that at the time of the execution of the Deed of Donation, Dr. Mariano Favis, Sr. was
already at an advanced age of 92, afflicted with different illnesses like Hiatal hernia, Parkinsons disease and pneumonia, to name
few, which illnesses had the effects of impairing his brain or mental faculties and the deed being executed only when Dra. Mercedes
Favis had already left his fathers residence when Dr. Mariano Favis, Sr. could have done so earlier or even in the presence of Dra.
Mercedes Favis, at the time he executed the Deed of Donation was not in full control of his mental faculties. That although age of
senility varies from one person to another, to reach the age of 92 with all those medications and treatment one have received for
those illnesses, yet claim that his mind remains unimpaired, would be unusual. The fact that the Deed of Donation was only
executed after Dra. Mercedes Favis left his father's house necessarily indicates that they don't want the same to be known by the
first family, which is an indicia of bad faith on the part of the defendant, who at that time had influence over the donor. 23

The correctness of the finding was not touched by the Court of Appeals. The respondents opted to rely only on what the appellate
court considered, erroneously though, was a procedural infirmity. The trial court's factual finding, therefore, stands unreversed; and
respondents did not provide us with any argument to have it reversed.

The issue of the validity of donation was fully litigated and discussed by the trial court. Indeed, the trial court's findings were placed
at issue before the Court of Appeals but the appellate court chose to confine its review to the procedural aspect. The judgment of
the Court of Appeals, even if it dealt only with procedure, is deemed to have covered all issues including the correctness of the
factual findings of the trial court. Moreover, remanding the case to the Court of Appeals would only constitute unwarranted delay in
the final disposition of the case.

WHEREFORE, the Decision of the Court of Appeals is REVERSED and SET ASIDE and the Judgment of the Regional Trial Court of Vigan,
Ilocos Sur, Branch 20 is AFFIRMED.

SO ORDERED.

G.R. No. 178288 August 15, 2012

SPOUSES CHARLIE FORTALEZA and OFELIA FORTALEZA, Petitioners,

vs.
SPOUSES RAUL LAPITAN and RONA LAPITAN, Respondents.

DECISION

DEL CASTILLO, J.:

Unless a case falls under recognized exceptions provided by law and jurisprudence, courts should maintain the ex parte, non-
adversarial, summary and ministerial nature of the issuance of a writ of possession.

Assailed in this Petition for Review on Certiorari 1 under Rule 45 of the Rules of Court is the Decision 2 of the Court of Appeals (CA)
dated January 10, 2007 in CA-G.R. CV No. 86287 which affirmed the Order3 of the Regional Trial Court (RTC) of Calamba City Branch
35, dated September 16, 2005 in SLRC Case No. 2528-2004-C granting an ex parte petition for the issuance of writ of possession.
Likewise assailed is the CA Resolution4 dated June 6, 2007 which denied the Motion for Reconsideration 5 of the said assailed
Decision.

Factual Antecedents

Spouses Charlie and Ofelia Fortaleza (spouses Fortaleza) obtained a loan from spouses Rolando and Amparo Lapitan (creditors) in
the amount of P1.2 million subject to 34% interest per annum. As security, spouses Fortaleza executed on January 28, 1998 a Deed
of Real Estate Mortgage6 over their residential house and lot situated in Barrio Anos, Municipality of Los Baos, Laguna (subject
property) registered under Transfer Certificate of Title (TCT) No. T-412512.7

When spouses Fortaleza failed to pay the indebtedness including the interests and penalties, the creditors applied for extrajudicial
foreclosure of the Real Estate Mortgage before the Office of the Clerk of Court and Ex-Officio Sheriff of Calamba City. The public
auction sale was set on May 9, 2001.

At the sale, the creditors son Dr. Raul Lapitan and his wife Rona (spouses Lapitan) emerged as the highest bidders with the bid
amount of P2.5 million. Then, they were issued a Certificate of Sale8 which was registered with the Registry of Deeds of Calamba City
and annotated at the back of TCT No. T-412512 under Entry No. 615683 on November 15, 2002.9
The one-year redemption period expired without the spouses Fortaleza redeeming the mortgage. Thus, spouses Lapitan executed an
affidavit of consolidation of ownership on November 20, 2003 and caused the cancellation of TCT No. T-412512 and the registration
of the subject property in their names under TCT No. T-53594510 on February 4, 2004. Despite the foregoing, the spouses Fortaleza
refused spouses Lapitans formal demand11 to vacate and surrender possession of the subject property.

Proceedings before the Regional Trial Court

On August 27, 2004, spouses Lapitan filed an ex parte petition for the issuance of writ of possession with Branch 35 of the RTC of
Calamba City docketed as SLRC Case No. 2528-2004-C.12 As new registered owners of the subject property, spouses Lapitan claimed
that they were entitled to its possession pursuant to Section 7 of Act No. 3135, 13as amended by Act No. 4118.

In their opposition,14 spouses Fortaleza questioned the validity of the real estate mortgage and the foreclosure sale. They argued
that the mortgage was void because the creditors bloated the principal amount by the imposition of exorbitant interest. Spouses
Fortaleza added that the foreclosure proceeding was invalid for non-compliance with the posting requirement.

Later, for repeated failure of spouses Fortaleza to appear at the scheduled hearings, the RTC allowed spouses Lapitan to present
evidence ex parte.

Eventually, on September 16, 2005, the RTC ordered the issuance of a writ of possession explaining that it is a ministerial duty of the
court especially since the redemption period had expired and a new title had already been issued in the name of the spouses
Lapitan, thus:

WHEREFORE, premises considered, the Opposition with counterclaim filed by the respondents is denied while this instant petition is
hereby granted.

Accordingly, the Branch Clerk of Court is hereby ordered to issue a Writ of Possession directing the provincial sheriff of Laguna to
place the petitioner in possession of the above described property free from any adverse occupants thereof.

SO ORDERED.15

Spouses Fortaleza moved for reconsideration,16 claiming that the subject property is their family home and is exempt from
foreclosure sale. On October 11, 2005, however, the RTC issued an Order 17 denying their motion. Accordingly, the branch clerk of
court issued the Writ of Possession 18 and the sheriff served the corresponding Notice to Vacate19 against spouses Fortaleza.

Proceedings before the Court of Appeals

Dissatisfied, spouses Fortaleza elevated the case to the CA via Rule 41 of the Rules of Court docketed as CA-G.R. CV No. 86287. With
the perfection of an appeal, the RTC held in abeyance the implementation of the writ. 20 After the parties submitted their respective
briefs, the CA rendered the assailed Decision21 dated January 10, 2007 dismissing the appeal:

WHEREFORE, the appeal is hereby DISMISSED. The Order dated September 16, 2005 of the Regional Trial Court, Branch 35, Calamba
City in SLRC Case No. 2528-2004-SC, is AFFIRMED. The court a quo is DIRECTED to enforce the Writ of Possession it issued on
October 24, 2005.

SO ORDERED.22

In affirming the ruling of the RTC, the CA stressed that any question regarding the regularity and validity of the mortgage or its
foreclosure cannot be raised as a justification for opposing the issuance of the writ of possession since the proceedings is ex parte
and non-litigious. Moreover, until the foreclosure sale is annulled, the issuance of the writ of possession is ministerial.

Issues

Unsuccesful with their quest to have the CA reconsider its Decision,23 spouses Fortaleza filed this petition for review
on certiorari24 raising the following errors:

WHETHER X X X THE HONORABLE COURT OF APPEALS VIOLATED THE TWO (2)-RAFFLE RULE PRESCRIBED BY AND LONG ESTABLISHED
UNDER THE REVISED INTERNAL RULES OF THE COURT OF APPEALS WHEN IT IMMEDIATELY RENDERED THE ASSAILED DECISION
BARELY AFTER THE SUBMISSION OF THE PARTIES BRIEFS. IN SO DOING, THE HONORABLE COURT OF APPEALS ENGAGED IN
PROCEDURAL SHORTCUTS AND ACTED WITH UNDUE HASTE AND INDECENT SPEED, THUS RENDERING ITS DECISION AS NULL AND
VOID AND CHARACTERIZED BY MANIFEST BIAS AND PARTIALITY TO THE RESPONDENTS.

II

WHETHER X X X THE HONORABLE COURT OF APPEALS COMMITTED A SERIOUS REVERSIBLE ERROR IN UPHOLDING THE TRIAL
COURTS ISSUANCE OF A WRIT OF POSSESSION DESPITE THE FACT THAT THE RESPONDENTS FAILED TO ESTABLISH THEIR
ENTITLEMENT TO THE ISSUANCE OF SAID WRIT, THE NON-COMPLIANCE BY THE ORIGINAL MORTGAGORS AND THE RESPONDENTS
OF THE STATUTORY REQUIREMENTS OF EXTRAJUDICIAL FORECLOSURE OF MORTGAGE UNDER ACT NO. 3135, AND THE FATAL
DEFECTS OF THE FORECLOSURE PROCEEDINGS.

III

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT HOLDING THAT THE PETITIONERS WERE PREVENTED BY THE
RESPONDENTS FROM EXERCISING THEIR RIGHT OF REDEMPTION OVER THE FORECLOSED PROPERTY BY DEMANDING A
REDEMPTION PRICE OF A HIGHLY INEQUITABLE AND MORE THAN DOUBLE THE AMOUNT OF THE FORECLOSED PROPERTY,
ESPECIALLY THAT THE FORECLOSED MORTGAGED PROPERTY IS THE FAMILY HOME OF PETITIONERS AND THEIR CHILDREN. 25

First, spouses Fortaleza point out that the CA violated its own 2002 Internal Rules of Procedure when it decided the case without
passing the two-raffle system. They claim that the justice assigned in the completion stage also decided the case on the merits. This
procedural shortcut, according to spouses Fortaleza, evinces the appellate courts bias and prejudgment in favor of the spouses
Lapitan.

Second, citing Barican v. Intermediate Appellate Court26 and Cometa v. Intermediate Appellate Court,27 and reiterating the
irregularities that allegedly attended the foreclosure sale, the spouses Fortaleza insist that the issuance of writ of possession is not
always ministerial and the trial court should have accorded them opportunity to present contrary evidence.

Last, spouses Fortaleza maintain that the subject property is a family home exempt from forced sale. Hence, in the spirit of equity
and following the rulings in Tolentino v. Court of Appeals, 28 and De los Reyes v. Intermediate Appellate Court, 29 the Court should
allow them to exercise the right of redemption even after the expiration of the one-year period.

Our Ruling

On Matters of Procedure

True, under the 2002 Internal Rules of the Court of Appeals (IRCA), appealed civil cases undergo two-raffle system. First, a
preliminary raffle is held to determine the Justice to whom the case will be assigned for completion of records. After completion, a
second raffle is conducted to determine the Justice to whom the case will be assigned for study and report. "Each stage is distinct
and it may happen that the Justice to whom the case was initially raffled for completion may not be the same Justice who will write
the decision thereon."30

Thus:

Section 2. Raffle of Cases.

(a) Assignment of cases to a Justice, whether for completion of records or for study and report, shall be by raffle, subject to the
following rules:

(1) Appealed cases for completion of records shall be raffled to individual Justices; (Sec. 5(a), Rule 3, RIRCA [a])

(1.1) Records are deemed completed upon filing of the required briefs or memoranda or the expiration of the
period for the filing thereof and resolution of all pending incidents. Thereupon, the Division Clerk of Court shall
report the case to the Justice concerned for the issuance of a resolution declaring the case submitted for decision
and referring the same to the Raffle Committee for raffle to a Justice for study and report; (Sec. 5(b), Rule 3, RIRCA
[a]).31 (Emphasis supplied.)

However, the two-raffle system is already abandoned under the 2009 IRCA. As the rule now stands, the Justice to whom a case is
raffled shall act on it both at the completion stage and for the decision on the merits, thus:

SEC. 2. Raffle of Cases.

(a) Cases shall be assigned to a Justice by raffle for completion of records, study and report, subject to the following rules:

(1) Cases, whether original or appealed, shall be raffled to individual justices;

(1.1) Records are deemed completed upon filing of the required pleadings, briefs or memoranda or the expiration
of the period for the filing thereof and resolution of all pending incidents. Upon such completion, the Division Clerk
of Court shall report the case to the Justice concerned for the issuance of a resolution declaring the case submitted
for decision.32 (Emphasis supplied.)

Corollarily, the alleged defect in the processing of this case before the CA has been effectively cured. We stress that rules of
procedure may be modified at any time and become effective at once, so long as the change does not affect vested
rights.33 Moreover, it is equally axiomatic that there are no vested rights to rules of procedure. 34 Thus, unless spouses Fortaleza can
establish a right by virtue of some statute or law, the alleged violation is not an actionable wrong. 35 At any rate, the 2002 IRCA does
not provide for the effect of non-compliance with the two-raffle system on the validity of the decision. Notably too, it does not
prohibit the assignment by raffle of a case for study and report to a Justice who handled the same during its completion stage.

We also find that personal bias and prejudgment cannot be inferred from the alleged breach of internal rules. It is settled that clear
and convincing evidence is required to prove bias and prejudice. 36 Bare allegations and mere suspicions of partiality are not enough
in the absence of evidence to overcome the presumption that a member of the court will undertake his noble role to dispense
justice according to law and evidence and without fear or favor. 37Moreover, no acts or conduct of the division or the ponente was
shown to indicate any arbitrariness against the spouses Fortaleza. What is extant is that the opinions formed in the course of judicial
proceedings are all based on the evidence presented.

On the Issuance of Writ of Possession

Spouses Fortaleza claim that the RTC grievously erred in ignoring the apparent nullity of the mortgage and the subsequent
foreclosure sale. For them, the RTC should have heard and considered these matters in deciding the case on its merits. They relied
on the cases of Barican38 and Cometa39 in taking exception to the ministerial duty of the trial court to grant a writ of possession.

But the cited authorities are not on all fours with this case. In Barican, we held that the obligation of a court to issue a writ of
possession ceases to be ministerial if there is a third party holding the property adversely to the judgment debtor. Where such third
party exists, the trial court should conduct a hearing to determine the nature of his adverse possession. And in Cometa, there was a
pending action where the validity of the levy and sale of the properties in question were directly put in issue which this Court found
pre-emptive of resolution. For if the applicant for a writ of possession acquired no interest in the property by virtue of the levy and
sale, then, he is not entitled to its possession. Moreover, it is undisputed that the properties subject of said case were sold at an
unusually lower price than their true value. Thus, equitable considerations motivated this Court to withhold the issuance of the writ
of possession to prevent injustice on the other party.

Here, there are no third parties holding the subject property adversely to the judgment debtor. It was spouses Fortaleza themselves
as debtors-mortgagors who are occupying the subject property. They are not even strangers to the foreclosure proceedings in which
the ex parte writ of possession was applied for. Significantly, spouses Fortaleza did not file any direct action for annulment of the
foreclosure sale of the subject property. Also, the peculiar circumstance of gross inadequacy of the purchase price is absent.

Accordingly, unless a case falls under recognized exceptions provided by law40 and jurisprudence,41 we maintain the ex parte, non-
adversarial, summary and ministerial nature of the issuance of a writ of possession as outlined in Section 7 of Act No. 3135, as
amended by Act No. 4118, which provides:

SECTION 7. In any sale made under the provisions of this Act, the purchaser may petition the Court of First Instance of the province
or place where the property or any part thereof is situated, to give him possession thereof during the redemption period, furnishing
bond in an amount equivalent to the use of the property for a period of twelve months, to indemnify the debtor in case it be shown
that the sale was made without violating the mortgage or without complying with the requirements of this Act. Such petition shall
be made under oath and filed in form of an ex parte motion x x x and the court shall, upon approval of the bond, order that a writ of
possession issue, addressed to the sheriff of the province in which the property is situated, who shall execute said order
immediately. (Emphasis supplied.)

Under the provision cited above, the purchaser in a foreclosure sale may apply for a writ of possession during the redemption
period. Notably, in this case, the one-year period for the spouses Fortaleza to redeem the mortgaged property had already lapsed.
Furthermore, ownership of the subject property had already been consolidated and a new certificate of title had been issued under
the name of the spouses Lapitan. Hence, as the new registered owners of the subject property, they are even more entitled to its
possession and have the unmistakable right to file an ex parte motion for the issuance of a writ of possession. As aptly explained in
Edralin v. Philippine Veterans Bank,42 the duty of the trial court to grant a writ of possession in such instances is ministerial, and the
court may not exercise discretion or judgment, thus:

Consequently, the purchaser, who has a right to possession after the expiration of the redemption period, becomes the absolute
owner of the property when no redemption is made. x x x The purchaser can demand possession at any time following the
consolidation of ownership in his name and the issuance to him of a new TCT. After consolidation of title in the purchasers name for
failure of the mortgagor to redeem the property, the purchasers right to possession ripens into the absolute right of a confirmed
owner. At that point, the issuance of a writ of possession, upon proper application and proof of title becomes merely a ministerial
function. Effectively, the court cannot exercise its discretion. (Emphasis in the original.)

In this case, spouses Lapitan sufficiently established their right to the writ of possession. More specifically, they presented the
following documentary exhibits: (1) the Certificate of Sale and its annotation at the back of spouses Fortalezas TCT No. T-412512; (2)
the Affidavit of Consolidation proving that spouses Fortaleza failed to redeem the property within the one-year redemption period;
(3) TCT No. T-535945 issued in their names; and, (4) the formal demand on spouses Fortaleza to vacate the subject property.

Lastly, we agree with the CA that any question regarding the regularity and validity of the mortgage or its foreclosure cannot be
raised as a justification for opposing the petition for the issuance of the writ of possession. 43 The said issues may be raised and
determined only after the issuance of the writ of possession. 44 Indeed, "[t]he judge with whom an application for writ of possession
is filed need not look into the validity of the mortgage or the manner of its foreclosure." 45 The writ issues as a matter of course. "The
rationale for the rule is to allow the purchaser to have possession of the foreclosed property without delay, such possession being
founded on the right of ownership."46 To underscore this mandate, Section 847 of Act No. 3135 gives the debtor-mortgagor the right
to file a petition for the setting aside of the foreclosure sale and for the cancellation of a writ of possession in the same proceedings
where the writ was issued within 30 days after the purchaser-mortgagee was given possession. The courts decision thereon may be
appealed by either party, but the order of possession shall continue in effect during the pendency of the appeal.

"Clearly then, until the foreclosure sale of the property in question is annulled by a court of competent jurisdiction, the issuance of a
writ of possession remains the ministerial duty of the trial court. The same is true with its implementation; otherwise, the writ will
be a useless paper judgment a result inimical to the mandate of Act No. 3135 to vest possession in the purchaser immediately." 48

On exemption of the subject property

and the exercise of right of redemption

Spouses Fortalezas argument that the subject property is exempt from forced sale because it is a family home deserves scant
consideration. As a rule, the family home is exempt from execution, forced sale or attachment. 49However, Article 155(3) of the
Family Code explicitly allows the forced sale of a family home "for debts secured by mortgages on the premises before or after such
constitution." In this case, there is no doubt that spouses Fortaleza voluntarily executed on January 28, 1998 a deed of Real Estate
Mortgage over the subject property which was even notarized by their original counsel of record. And assuming that the property is
exempt from forced sale, spouses Fortaleza did not set up and prove to the Sheriff such exemption from forced sale before it was
sold at the public auction. As elucidated in Honrado v. Court of Appeals:50

While it is true that the family home is constituted on a house and lot from the time it is occupied as a family residence and is
exempt from execution or forced sale under Article 153 of the Family Code, such claim for exemption should be set up and proved to
the Sheriff before the sale of the property at public auction. Failure to do so would estop the party from later claiming the
exemption. As this Court ruled in Gomez v. Gealone:

Although the Rules of Court does not prescribe the period within which to claim the exemption, the rule is, nevertheless, well-
settled that the right of exemption is a personal privilege granted to the judgment debtor and as such, it must be claimed not by the
sheriff, but by the debtor himself at the time of the levy or within a reasonable period thereafter. 51(Emphasis supplied.)

Certainly, reasonable time for purposes of the law on exemption does not mean a time after the expiration of the one-year period
for a judgment debtor to redeem the property.52

Equally without merit is spouses Fortalezas reliance on the cases of Tolentino53 and De Los Reyes54 in praying for the exercise of the
right of redemption even after the expiration of the one-year period. In Tolentino, we held that an action to redeem filed within the
period of redemption, with a simultaneous deposit of the redemption money tendered to the sheriff, is equivalent to an offer to
redeem and has the effect of preserving the right to redemption for future enforcement even beyond the one-year period.55 And
in De Los Reyes, we allowed the mortgagor to redeem the disputed property after finding that the tender of the redemption price to
the sheriff was made within the one-year period and for a sufficient amount.

The circumstances in the present case are far different. The spouses Fortaleza neither filed an action nor made a formal offer to
redeem the subject property accompanied by an actual and simultaneous tender of payment. It is also undisputed that they allowed
the one-year period to lapse from the registration of the certificate of sale without redeeming the mortgage. For all intents and
purposes, spouses Fortaleza have waived or abandoned their right of redemption.1wphi1

Although the rule on redemption is liberally interpreted in favor of the original owner of the property, we cannot apply the privilege
of liberality to accommodate the spouses Forteza due to their negligence or omission to exercise the right of redemption within the
prescribed period without justifiable cause.

WHEREFORE, premises considered, the petition is DENIED. The Decision dated January 10, 2007 and Resolution dated June 6, 2007
of the Court of Appeals in CA-G.R. CV No. 86287 are AFFIRMED.

SO ORDERED.

G.R. No. 185920 July 20, 2010

JUANITA TRINIDAD RAMOS, ALMA RAMOS WORAK, MANUEL T. RAMOS, JOSEFINA R. ROTHMAN, SONIA R. POST, ELVIRA P.
MUNAR, and OFELIA R. LIM, Petitioners,
vs.
DANILO PANGILINAN, RODOLFO SUMANG, LUCRECIO BAUTISTA and ROLANDO ANTENOR, Respondents.

DECISION

CARPIO MORALES, J.:

Respondents filed in 2003 a complaint1 for illegal dismissal against E.M. Ramos Electric, Inc., a company owned by Ernesto M. Ramos
(Ramos), the patriarch of herein petitioners. By Decision 2 of April 15, 2005, the Labor Arbiter ruled in favor of respondents and
ordered Ramos and the company to pay the aggregate amount of P1,661,490.30 representing their backwages, separation pay, 13th
month pay & service incentive leave pay.
The Decision having become final and executory and no settlement having been forged by the parties, the Labor Arbiter issued on
September 8, 2005 a writ of execution3 which the Deputy Sheriff of the National Labor Relations Commission (NLRC) implemented
by levying a property in Ramos name covered by TCT No. 38978, situated in Pandacan, Manila (Pandacan property).

Alleging that the Pandacan property was the family home, hence, exempt from execution to satisfy the judgment award, Ramos and
the company moved to quash the writ of execution. 4 Respondents, however, averred that the Pandacan property is not the Ramos
family home, as it has another in Antipolo, and the Pandacan property in fact served as the companys business address as borne by
the companys letterhead. Respondents added that, assuming that the Pandacan property was indeed the family home, only the
value equivalent to P300,000 was exempt from execution.

By Order5 of August 2, 2006, the Labor Arbiter denied the motion to quash, hence, Ramos and the company appealed to the NLRC
which affirmed the Labor Arbiters Order.

Ramos and the company appealed to the Court of Appeals during the pendency of which Ramos died and was substituted by herein
petitioners. Petitioners also filed before the NLRC, as third-party claimants, a Manifestation questioning the Notice to Vacate issued
by the Sheriff, alleging that assuming that the Pandacan property may be levied upon, the family home straddled two (2) lots,
including the lot covered by TCT No. 38978, hence, they cannot be asked to vacate the house. The Labor Arbiter was later to deny,
by Decision of May 7, 2009, the third-party claim, holding

that Ramos death and petitioners substitution as his compulsory heirs would not nullify the sale at auction of the Pandacan
property. And the NLRC6 would later affirm the Labor Arbiters ruling, noting that petitioners failed to exercise their right to redeem
the Pandacan property within the one 1 year period or until January 16, 2009. The NLRC brushed aside petitioners contention that
they should have been given a fresh period of 1 year from the time of Ramos death on July 29, 2008 or until July 30, 2009 to redeem
the property, holding that to do so would give petitioners, as mere heirs, a better right than the Ramos.

As to petitioners claim that the property was covered by the regime of conjugal partnership of gains and as such only Ramos share
can be levied upon, the NLRC ruled that petitioners failed to substantiate such claim and that the phrase in the TCT indicating the
registered owner as "Ernesto Ramos, married to Juanita Trinidad, Filipinos," did not mean that both owned the property, the phrase
having merely described Ramos civil status.

Before the appellate court, petitioners alleged that the NLRC erred in ruling that the market value of the property was P2,177,000 as
assessed by the City Assessor of Manila and appearing in the documents submitted before the Labor Arbiter, claiming that at the
time the Pandacan property was constituted as the family home in 1944, its value was way below P300,000; and that Art. 153 of the
Family Code was applicable, hence, they no longer had to resort to judicial or extrajudicial constitution.

In the assailed Decision7 of September 24, 2008, the appellate court, in denying petitioners appeal, held that the Pandacan property
was not exempted from execution, for while "Article 1538 of the Family Code provides that the family home is deemed constituted
on a house and lot from the time it is occupied as a family residence, [it] did not mean that the article has a retroactive effect such
that all existing family residences are deemed to have been constituted as family homes at the time of their occupation prior to the
effectivity of the Family Code."

The appellate court went on to hold that what was applicable law were Articles 224 to 251 of the Civil Code, hence, there was still a
need to either judicially or extrajudicially constitute the Pandacan property as petitioners family home before it can be exempted;
and as petitioners failed to comply therewith, there was no error in denying the motion to quash the writ of execution.

The only question raised in the present petition for review on certiorari is the propriety of the Court of Appeals Decision holding that
the levy upon the Pandacan property was valid.

The petition is devoid of merit.

Indeed, the general rule is that the family home is a real right which is gratuitous, inalienable and free from attachment, constituted
over the dwelling place and the land on which it is situated, which confers upon a particular family the right to enjoy such properties,
which must remain with the person constituting it and his heirs. It cannot be seized by creditors except in certain special cases.9

Kelley, Jr. v. Planters Products, Inc.10 lays down the rules relative to the levy on execution over the family home, viz:

No doubt, a family home is generally exempt from execution provided it was duly constituted as such. There must be proof that the
alleged family home was constituted jointly by the husband and wife or by an unmarried head of a family. It must be the house
where they and their family actually reside and the lot on which it is situated. The family home must be part of the properties of the
absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latters consent, or on the
property of the unmarried head of the family. The actual value of the family home shall not exceed, at the time of its constitution,
the amount of P300,000 in urban areas and P200,000 in rural areas.

Under the Family Code, there is no need to constitute the family home judicially or extrajudicially. All family homes constructed after
the effectivity of the Family Code (August 3, 1988) are constituted as such by operation of law. All existing family residences as of
August 3, 1988 are considered family homes and are prospectively entitled to the benefits accorded to a family home under the
Family Code.
The exemption is effective from the time of the constitution of the family home as such and lasts as long as any of its beneficiaries
actually resides therein. Moreover, the debts for which the family home is made answerable must have been incurred after August
3, 1988. Otherwise (that is, if it was incurred prior to August 3, 1988), the alleged family home must be shown to have been
constituted either judicially or extrajudicially pursuant to the Civil Code. (emphasis supplied)

For the family home to be exempt from execution, distinction must be made as to what law applies based on when it was
constituted and what requirements must be complied with by the judgment debtor or his successors claiming such privilege. Hence,
two sets of rules are applicable.

If the family home was constructed before the effectivity of the Family Code or before August 3, 1988, then it must have been
constituted either judicially or extra-judicially as provided under Articles 225, 229-231 and 233 of the Civil Code.11 Judicial
constitution of the family home requires the filing of a verified petition before the courts and the registration of the courts order
with the Registry of Deeds of the area where the property is located. Meanwhile, extrajudicial constitution is governed by Articles
240 to 24212 of the Civil Code and involves the execution of a public instrument which must also be registered with the Registry of
Property. Failure to comply with either one of these two modes of constitution will bar a judgment debtor from availing of the
privilege.

On the other hand, for family homes constructed after the effectivity of the Family Code on August 3, 1988, there is no need to
constitute extrajudicially or judicially, and the exemption is effective from the time it was constituted and lasts as long as any of its
beneficiaries under Art. 15413 actually resides therein. Moreover, the family home should belong to the absolute community or
conjugal partnership, or if exclusively by one spouse, its constitution must have been with consent of the other, and its value must
not exceed certain amounts depending upon the area where it is

located. Further, the debts incurred for which the exemption does not apply as provided under Art. 155 14 for which the family home
is made answerable must have been incurred after August 3, 1988.1avvphi1

And in both cases, whether under the Civil Code or the Family Code, it is not sufficient that the person claiming exemption merely
alleges that such property is a family home. This claim for exemption must be set up and proved.15

In the present case, since petitioners claim that the family home was constituted prior to August 3, 1988, or as early as 1944, they
must comply with the procedure mandated by the Civil Code. There being absolutely no proof that the Pandacan property was
judicially or extrajudicially constituted as the Ramos family home, the laws protective mantle cannot be availed of by petitioners.
Parenthetically, the records show that the sheriff exhausted all means to execute the judgment but failed because Ramos bank
accounts16 were already closed while other properties in his or the companys name had already been transferred, 17 and the only
property left was the Pandacan property.

WHEREFORE, the petition is DENIED.

SO ORDERED.

G.R. No. 185064 January 16, 2012

SPOUSES ARACELI OLIVA-DE MESA and ERNESTO S. DE MESA, Petitioner,

vs.
SPOUSES CLAUDIO D. ACERO, JR. and MA. RUFINA D. ACERO, SHERIFF FELIXBERTO L. SAMONTE and REGISTRAR ALFREDO
SANTOS, Respondents.

DECISION

REYES, J.:

Nature of the Petition

This is a petition for review on certiorari under Rule 45 of the Rules of Court filed by the Spouses Araceli Oliva-De Mesa (Araceli) and
Ernesto S. De Mesa (Ernesto), assailing the Court of Appeals (CA) Decision1 dated June 6, 2008 and Resolution2 dated October 23,
2008 in CA-G.R. CV No. 79391 entitled "Spouses Araceli Oliva-De Mesa and Ernesto De Mesa v. Spouses Claudio Acero, Jr., et al."

The Antecedent Facts

This involves a parcel of land situated at No. 3 Forbes Street, Mount Carmel Homes Subdivision, Iba, Meycauayan, Bulacan, which
was formerly covered by Transfer Certificate of Title (TCT) No. T-76.725 (M) issued by the Register of Deeds of Meycauayan, Bulacan
and registered under Aracelis name. The petitioners jointly purchased the subject property on April 17, 1984 while they were still
merely cohabiting before their marriage. A house was later constructed on the subject property, which the petitioners thereafter
occupied as their family home after they got married sometime in January 1987.
Sometime in September 1988, Araceli obtained a loan from Claudio D. Acero, Jr. (Claudio) in the amount of P100,000.00, which was
secured by a mortgage over the subject property. As payment, Araceli issued a check drawn against China Banking Corporation
payable to Claudio.

When the check was presented for payment, it was dishonored as the account from which it was drawn had already been closed.
The petitioners failed to heed Claudios subsequent demand for payment.

Thus, on April 26, 1990, Claudio filed with the Prosecutor's Office of Malolos, Bulacan a complaint for violation of Batas Pambansa
Blg. 22 (B.P. 22) against the petitioners. After preliminary investigation, an information for violation of B.P. 22 was filed against the
petitioners with the Regional Trial Court (RTC) of Malolos, Bulacan.

On October 21, 1992, the RTC rendered a Decision 3 acquitting the petitioners but ordering them to pay Claudio the amount
of P100,000.00 with legal interest from date of demand until fully paid.

On March 15, 1993, a writ of execution was issued and Sheriff Felixberto L. Samonte (Sheriff Samonte) levied upon the subject
property. On March 9, 1994, the subject property was sold on public auction; Claudio was the highest bidder and the corresponding
certificate of sale was issued to him.

Sometime in February 1995, Claudio leased the subject property to the petitioners and a certain Juanito Oliva (Juanito) for a monthly
rent of P5,500.00. However, the petitioners and Juanito defaulted in the payment of the rent and as of October 3, 1998, their total
accountabilities to Claudio amounted to P170,500.00.

Meanwhile, on March 24, 1995, a Final Deed of Sale4 over the subject property was issued to Claudio and on April 4, 1995, the
Register of Deeds of Meycauayan, Bulacan cancelled TCT No. T-76.725 (M) and issued TCT No. T-221755 (M)5 in his favor.

Unable to collect the aforementioned rentals due, Claudio and his wife Ma. Rufina Acero (Rufina) (collectively referred to as Spouses
Acero) filed a complaint for ejectment with the Municipal Trial Court (MTC) of Meycauayan, Bulacan against the petitioners and
Juanito. In their defense, the petitioners claimed that Spouses Acero have no right over the subject property. The petitioners deny
that they are mere lessors; on the contrary, they are the lawful owners of the subject property and, thus cannot be evicted
therefrom.

On July 22, 1999, the MTC rendered a Decision,6 giving due course to Spouses Aceros complaint and ordering the petitioners and
Juanito to vacate the subject property. Finding merit in Spouses Aceros claims, the MTC dismissed the petitioners' claim of
ownership over the subject property. According to the MTC, title to the subject property belongs to Claudio as shown by TCT No. T-
221755 (M).

The MTC also stated that from the time a Torrens title over the subject property was issued in Claudios name up to the time the
complaint for ejectment was filed, the petitioners never assailed the validity of the levy made by Sheriff Samonte, the regularity of
the public sale that was conducted thereafter and the legitimacy of Claudios Torrens title that was resultantly issued.

The petitioners appealed the MTCs July 22, 1999 Decision to the RTC. This appeal was, however, dismissed in a Decision dated
November 22, 1999 due to the petitioners failure to submit their Memorandum. The petitioners sought reconsideration of the said
decision but the same was denied in an Order dated January 31, 2000.

Consequently, the petitioners filed a petition for review7 with the CA assailing the RTCs November 22, 1999 Decision and January
31, 2000 Order. In a December 21, 2006 Decision,8 the CA denied the petitioners petition for review. This became final on July 25,
2007.9

In the interregnum, on October 29, 1999, the petitioners filed against the respondents a complaint 10 to nullify TCT No. T-221755 (M)
and other documents with damages with the RTC of Malolos, Bulacan. Therein, the petitioners asserted that the subject property is
a family home, which is exempt from execution under the Family Code and, thus, could not have been validly levied upon for
purposes of satisfying the March 15, 1993 writ of execution.

On September 3, 2002, the RTC rendered a Decision, 11 which dismissed the petitioners complaint. Citing Article 155(3) of the Family
Code, the RTC ruled that even assuming that the subject property is a family home, the exemption from execution does not apply. A
mortgage was constituted over the subject property to secure the loan Araceli obtained from Claudio and it was levied upon as
payment therefor.

The petitioners sought reconsideration of the RTCs September 3, 2002 Decision but this was denied in a Resolution 12 dated January
14, 2003.

On appeal, the CA affirmed the RTCs disposition in its Decision 13 dated June 6, 2008. The CA ratiocinated that the exemption of a
family home from execution, attachment or forced sale under Article 153 of the Family Code is not automatic and should accordingly
be raised and proved to the Sheriff prior to the execution, forced sale or attachment. The appellate court noted that at no time did
the petitioners raise the supposed exemption of the subject property from execution on account of the same being a family home.

The petitioners then sought reconsideration of the said June 6, 2008 Decision but the same was denied by the CA in its
Resolution14 dated October 23, 2008.
Aggrieved, the petitioners filed the instant petition for review, praying for the cancellation of TCT No. T-221755 (M). They insist that
the execution sale that was conducted is a nullity considering that the subject property is a family home. The petitioners assert that,
contrary to the disposition of the CA, a prior demonstration that the subject property is a family home is not required before it can
be exempted from execution.

In their Comment,15 Spouses Acero claimed that this petition ought to be denied on the ground of forum-shopping as the issues
raised had already been determined by the MTC in its July 22, 1999 Decision on the complaint for ejectment filed by them, which
had already become final and executory following the petitioners failure to appeal the CAs December 21, 2006 Decision affirming
it.

Issues

The threshold issues for resolution are the following: (a) whether the petitioners are guilty of forum-shopping; and (b) whether the
lower courts erred in refusing to cancel Claudios Torrens title TCT No. T-221755 (M) over the subject property.

The Courts Ruling

First Issue: Forum-Shopping

On the first issue, we find that the petitioners are not guilty of forum-shopping.

There is forum-shopping when as a result of an adverse decision in one forum, or in anticipation thereof, a party seeks a favorable
opinion in another forum through means other than an appeal or certiorari. Forum-shopping exists when two or more actions
involve the same transactions, essential facts, and circumstances; and raise identical causes of action, subject matter, and issues. 16

Forum-shopping exists where the elements of litis pendentia are present, and where a final judgment in one case will amount to res
judicata in the other. The elements of forum-shopping are: (a) identity of parties, or at least such parties as would represent the
same interest in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c)
identity of the two preceding particulars such that any judgment rendered in the other action will, regardless of which party is
successful, amount to res judicata in the action under consideration.17

There is no identity of issues and reliefs prayed for in the ejectment case and in the action to cancel TCT No. T-221755 (M). Verily,
the primordial issue in the ejectment case is who among the contending parties has a better right of possession over the subject
property while ownership is the core issue in an action to cancel a Torrens title.

It is true that the petitioners raised the issue of ownership over the subject property in the ejectment case. However, the resolution
thereof is only provisional as the same is solely for the purpose of determining who among the parties therein has a better right of
possession over the subject property.

Accordingly, a judgment rendered in an ejectment case is not a bar to action between the same parties respecting title to the land or
building. Neither shall it be conclusive as to the facts therein. This issue is far from being novel and there is no reason to depart from
this Courts previous pronouncements. In Malabanan v. Rural Bank of Cabuyao, Inc.,18 this Court had previously clarified that a
decision in an ejectment case is not res judicata in an annulment of title case and vice-versa given the provisional and inconclusive
nature of the determination of the issue of ownership in the former.

Forum-shopping exists where the elements of litis pendentia are present, namely: (a) identity of parties or at least such as
representing the same interests in both actions; (b) identity of rights asserted and reliefs prayed for, the relief being founded on the
same facts; and (c) the identity in the two cases should be such that the judgment that may be rendered in one would, regardless of
which party is successful, amounts to res judicata in the other.

Petitioner and respondent are the same parties in the annulment and ejectment cases. The issue of ownership was likewise being
contended, with same set of evidence being presented in both cases. However, it cannot be inferred that a judgment in the
ejectment case would amount to res judicata in the annulment case, and vice-versa.

This issue is hardly a novel one. It has been laid to rest by heaps of cases iterating the principle that a judgment rendered in an
ejectment case shall not bar an action between the same parties respecting title to the land or building nor shall it be conclusive as
to the facts therein found in a case between the same parties upon a different cause of action involving possession.

It bears emphasizing that in ejectment suits, the only issue for resolution is the physical or material possession of the property
involved, independent of any claim of ownership by any of the party litigants. However, the issue of ownership may be provisionally
ruled upon for the sole purpose of determining who is entitled to possession de facto. Therefore, the provisional determination of
ownership in the ejectment case cannot be clothed with finality.

Corollarily, the incidental issue of whether a pending action for annulment would abate an ejectment suit must be resolved in the
negative.

A pending action involving ownership of the same property does not bar the filing or consideration of an ejectment suit, nor suspend
the proceedings. This is so because an ejectment case is simply designed to summarily restore physical possession of a piece of land
or building to one who has been illegally or forcibly deprived thereof, without prejudice to the settlement of the parties' opposing
claims of juridical possession in appropriate proceedings.19(citations omitted)

Second Issue: Nullification of TCT No. T-221755 (M)

Anent the second issue, this Court finds that the CA did not err in dismissing the petitioners complaint for nullification of TCT No. T-
221755 (M).

The subject property is a family home.

The petitioners maintain that the subject property is a family home and, accordingly, the sale thereof on execution was a nullity.
In Ramos v. Pangilinan,20 this Court laid down the rules relative to exemption of family homes from execution:

For the family home to be exempt from execution, distinction must be made as to what law applies based on when it was
constituted and what requirements must be complied with by the judgment debtor or his successors claiming such privilege. Hence,
two sets of rules are applicable.

If the family home was constructed before the effectivity of the Family Code or before August 3, 1988, then it must have been
constituted either judicially or extra-judicially as provided under Articles 225, 229-231 and 233 of the Civil Code. Judicial
constitution of the family home requires the filing of a verified petition before the courts and the registration of the courts order
with the Registry of Deeds of the area where the property is located. Meanwhile, extrajudicial constitution is governed by Articles
240 to 242 of the Civil Code and involves the execution of a public instrument which must also be registered with the Registry of
Property. Failure to comply with either one of these two modes of constitution will bar a judgment debtor from availing of the
privilege.

On the other hand, for family homes constructed after the effectivity of the Family Code on August 3, 1988, there is no need to
constitute extrajudicially or judicially, and the exemption is effective from the time it was constituted and lasts as long as any of its
beneficiaries under Art. 154 actually resides therein. Moreover, the family home should belong to the absolute community or
conjugal partnership, or if exclusively by one spouse, its constitution must have been with consent of the other, and its value must
not exceed certain amounts depending upon the area where it is located. Further, the debts incurred for which the exemption does
not apply as provided under Art. 155 for which the family home is made answerable must have been incurred after August 3,
1988.21 (citations omitted)

In the earlier case of Kelley, Jr. v. Planters Products, Inc.,22 we stressed that:

Under the Family Code, there is no need to constitute the family home judicially or extrajudicially. All family homes constructed after
the effectivity of the Family Code (August 3, 1988) are constituted as such by operation of law. All existing family residences as of
August 3, 1988 are considered family homes and are prospectively entitled to the benefits accorded to a family home under the
Family Code.23 (emphasis supplied and citation omitted)

The foregoing rules on constitution of family homes, for purposes of exemption from execution, could be summarized as follows:

First, family residences constructed before the effectivity of the Family Code or before August 3, 1988 must be constituted
as a family home either judicially or extrajudicially in accordance with the provisions of the Civil Code in order to be exempt
from execution;

Second, family residences constructed after the effectivity of the Family Code on August 3, 1988 are automatically deemed
to be family homes and thus exempt from execution from the time it was constituted and lasts as long as any of its
beneficiaries actually resides therein;

Third, family residences which were not judicially or extrajudicially constituted as a family home prior to the effectivity of
the Family Code, but were existing thereafter, are considered as family homes by operation of law and are prospectively
entitled to the benefits accorded to a family home under the Family Code.

Here, the subject property became a family residence sometime in January 1987. There was no showing, however, that the same
was judicially or extrajudicially constituted as a family home in accordance with the provisions of the Civil Code. Still, when the
Family Code took effect on August 3, 1988, the subject property became a family home by operation of law and was thus
prospectively exempt from execution. The petitioners were thus correct in asserting that the subject property was a family home.

The family homes exemption from execution must be set up and proved to the Sheriff before the sale of the property at public
auction.

Despite the fact that the subject property is a family home and, thus, should have been exempt from execution, we nevertheless
rule that the CA did not err in dismissing the petitioners complaint for nullification of TCT No. T-221755 (M). We agree with the CA
that the petitioners should have asserted the subject property being a family home and its being exempted from execution at the
time it was levied or within a reasonable time thereafter. As the CA aptly pointed out:
In the light of the facts above summarized, it is evident that appellants did not assert their claim of exemption within a reasonable
time. Certainly, reasonable time, for purposes of the law on exemption, does not mean a time after the expiration of the one-year
period provided for in Section 30 of Rule 39 of the Rules of Court for judgment debtors to redeem the property sold on execution,
otherwise it would render nugatory final bills of sale on execution and defeat the very purpose of execution to put an end to
litigation. x x x.24

The foregoing disposition is in accord with the Courts November 25, 2005 Decision in Honrado v. Court of Appeals,25 where it was
categorically stated that at no other time can the status of a residential house as a family home can be set up and proved and its
exemption from execution be claimed but before the sale thereof at public auction:

While it is true that the family home is constituted on a house and lot from the time it is occupied as a family residence and is
exempt from execution or forced sale under Article 153 of the Family Code, such claim for exemption should be set up and proved to
the Sheriff before the sale of the property at public auction. Failure to do so would estop the party from later claiming the
exemption. As this Court ruled in Gomez v. Gealone:

Although the Rules of Court does not prescribe the period within which to claim the exemption, the rule is, nevertheless, well-
settled that the right of exemption is a personal privilege granted to the judgment debtor and as such, it must be claimed not by the
sheriff, but by the debtor himself at the time of the levy or within a reasonable period thereafter;

"In the absence of express provision it has variously held that claim (for exemption) must be made at the time of the levy if the
debtor is present, that it must be made within a reasonable time, or promptly, or before the creditor has taken any step involving
further costs, or before advertisement of sale, or at any time before sale, or within a reasonable time before the sale, or before the
sale has commenced, but as to the last there is contrary authority."

In the light of the facts above summarized, it is self-evident that appellants did not assert their claim of exemption within a
reasonable time. Certainly, reasonable time, for purposes of the law on exemption, does not mean a time after the expiration of the
one-year period provided for in Section 30 of Rule 39 of the Rules of Court for judgment debtors to redeem the property sold on
execution, otherwise it would render nugatory final bills of sale on execution and defeat the very purpose of executionto put an
end to litigation.1awphil We said before, and We repeat it now, that litigation must end and terminate sometime and somewhere,
and it is essential to an effective administration of justice that, once a judgment has become final, the winning party be not, through
a mere subterfuge, deprived of the fruits of the verdict. We now rule that claims for exemption from execution of properties under
Section 12 of Rule 39 of the Rules of Court must be presented before its sale on execution by the sheriff.26 (citations omitted)

Reiterating the foregoing in Spouses Versola v. Court of Appeals,27 this Court stated that:

Under the cited provision, 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.

The settled rule is that the right to exemption or forced sale under Article 153 of the Family Code is a personal privilege granted
to the judgment debtor and as such, it must be claimed not by the sheriff, but by the debtor himself before the sale of the
property at public auction. It is not sufficient that the person claiming exemption merely alleges that such property is a family
home. This claim for exemption must be set up and proved to the Sheriff. x x x.28 (emphasis supplied and citations omitted)

Having failed to set up and prove to the sheriff the supposed exemption of the subject property before the sale thereof at public
auction, the petitioners now are barred from raising the same. Failure to do so estop them from later claiming the said exemption.

Indeed, the family home is a sacred symbol of family love and is the repository of cherished memories that last during ones
lifetime.29 It is likewise without dispute that the family home, from the time of its constitution and so long as any of its beneficiaries
actually resides therein, is generally exempt from execution, forced sale or attachment. 30

The family home is a real right, which is gratuitous, inalienable and free from attachment. It cannot be seized by creditors except in
certain special cases.31 However, this right can be waived or be barred by laches by the failure to set up and prove the status of the
property as a family home at the time of the levy or a reasonable time thereafter.

In this case, it is undisputed that the petitioners allowed a considerable time to lapse before claiming that the subject property is a
family home and its exemption from execution and forced sale under the Family Code. The petitioners allowed the subject property
to be levied upon and the public sale to proceed. One (1) year lapsed from the time the subject property was sold until a Final Deed
of Sale was issued to Claudio and, later, Aracelis Torrens title was cancelled and a new one issued under Claudios name, still, the
petitioner remained silent. In fact, it was only after the respondents filed a complaint for unlawful detainer, or approximately four
(4) years from the time of the auction sale, that the petitioners claimed that the subject property is a family home, thus, exempt
from execution.

For all intents and purposes, the petitioners negligence or omission to assert their right within a reasonable time gives rise to the
presumption that they have abandoned, waived or declined to assert it. Since the exemption under Article 153 of the Family Code is
a personal right, it is incumbent upon the petitioners to invoke and prove the same within the prescribed period and it is not the
sheriffs duty to presume or raise the status of the subject property as a family home.
The petitioners negligence or omission renders their present assertion doubtful; it appears that it is a mere afterthought and artifice
that cannot be countenanced without doing the respondents injustice and depriving the fruits of the judgment award in their favor.
Simple justice and fairness and equitable considerations demand that Claudios title to the property be respected. Equity dictates
that the petitioners are made to suffer the consequences of their unexplained negligence.

WHEREFORE, in consideration of the foregoing disquisitions, the petition is DENIED. The assailed Decision dated June 6, 2008 of the
Court of Appeals in CA-G.R. CV No. 79391, which affirmed the Decision of the Regional Trial Court of Malolos, Bulacan, Branch 22, in
Civil Case No. 1058-M-99 and dismissed the complaint for declaration of nullity of TCT No. 221755 (M) and other documents, and
the October 23, 2008 Resolution denying reconsideration, are AFFIRMED.

SO ORDERED.

NARCISO SALAS, PETITIONER, VS. 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
Resolution[2] 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 answer[4] with special and affirmative defenses and counterclaims. He described respondent as a woman of loose
morals, having borne her first child also out of wedlock when she went to work in Italy. Jobless upon her return to the country,
respondent spent time riding on petitioners jeepney which was then being utilized by a female real estate agent named Felicisima
de Guzman. Respondent had seduced a senior police officer in San Isidro and her charge of sexual abuse against said police officer
was later withdrawn in exchange for the quashing of drug charges against respondents brother-in-law who was then detained at the
municipal jail. It was at that time respondent introduced herself to petitioner whom she pleaded for charity as she was pregnant
with another child. Petitioner denied paternity of the child Christian Paulo; he was motivated by no other reason except genuine
altruism when he agreed to shoulder the expenses for the delivery of said child, unaware of respondents chicanery and deceit
designed to scandalize him in exchange for financial favor.

At the trial, respondent and her witness Grace Murillo testified. Petitioner was declared to have waived his right to present evidence
and the case was considered submitted for decision based on respondents evidence.

Respondent testified that she first met petitioner at the house of his kumadre Felicisima de Guzman at Bgy. Malapit, San Isidro,
Nueva Ecija. During their subsequent meeting, petitioner told her he is already a widower and he has no more companion in life
because his children are all grown-up. She also learned that petitioner owns a rice mill, a construction business and a housing
subdivision (petitioner offered her a job at their family-owned Ma. Cristina Village). Petitioner at the time already knows that she is a
single mother as she had a child by her former boyfriend in Italy. He then brought her to a motel, promising that he will take care of
her and marry her. She believed him and yielded to his advances, with the thought that she and her child will have a better life.
Thereafter, they saw each other weekly and petitioner gave her money for her child. When she became pregnant with petitioners
child, it was only then she learned that he 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 18thday 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 money to
her. She and her baby survived through the help of relatives and friends. Depressed, she tried to commit suicide by drug overdose
and was brought to the hospital by Murillo who paid the bill. Murillo sought the help of the Cabanatuan City Police Station which set
their meeting with petitioner. However, it was only petitioners wife who showed up and she was very mad, uttering unsavory words
against respondent.[6]

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

On April 5, 1999, the trial court rendered its decision[8] in favor of respondent, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and against the defendant as follows:
1. Ordering the defendant to give as monthly support of TWO THOUSAND (P2,000.00) PESOS for the child Christian Paulo through
the mother;

2. Directing the defendant to pay the plaintiff the sum of P20,000.00 by way of litigation expenses; and

3. To pay the costs of suit.

SO ORDERED.[9]

Petitioner appealed to the CA arguing that: (1) the trial court decided the case without affording him the right to introduce evidence
on his defense; and (2) the trial court erred in finding that petitioner is the putative father of Christian Paulo and ordering him to
give monthly support.

By Decision dated July 18, 2006, the CA dismissed petitioners appeal. The appellate court found no reason to disturb the trial courts
exercise of discretion in denying petitioners motion for postponement on April 17, 1998, the scheduled hearing for the initial
presentation of defendants evidence, and the motion for reconsideration of the said order denying the motion for postponement
and submitting the case for decision.

On the paternity issue, the CA affirmed the trial courts ruling that respondent satisfactorily established the illegitimate filiation of
her son Christian Paulo, and consequently no error was committed by the trial court in granting respondents prayer for support. The
appellate court thus held:

Christian Paulo, in instant case, does not enjoy the benefit of a record of birth in the civil registry which bears acknowledgment
signed by Narciso Salas. He cannot claim open and continuous possession of the status of an illegitimate child.

It had been established by plaintiffs evidence, however, that during her pregnancy, Annabelle was provided by Narciso Salas with an
apartment at a rental of P1,500.00 which he paid for (TSN, October 6, 1995, p. 18). Narciso provided her with a household help with
a salary of P1,500.00 a month (TSN, October 6, 1995, ibid). He also provided her a monthly food allowance of P1,500.00 (Ibid, p. 18).
Narciso was with Annabelle at the hospital while the latter was in labor, walking her 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 the following arguments:

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 Appeals[21]:
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 of the Philippines states:

The filiation of legitimate children is established by any of the following:

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

(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent
concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

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

Respondent presented the Certificate of Live Birth[24] (Exhibit A-1) of Christian Paulo Salas in which the name of petitioner appears
as his father but which is not signed by him. Admittedly, it was only respondent who filled up the entries and signed the said
document though she claims it was petitioner who supplied the information she wrote therein.

We have held that a certificate of live birth purportedly identifying the putative father is not competent evidence of paternity when
there is no showing that the putative father had a hand in the preparation of the certificate.[25] Thus, if the father did not sign in the
birth certificate, the placing of his name by the mother, doctor, registrar, or other person is incompetent evidence of
paternity.[26] Neither can such birth certificate be taken as a recognition in a public instrument[27] and it has no probative value to
establish filiation to the alleged father.[28]

As to the Baptismal Certificate[29] (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 F[32] showing petitioner and respondent inside the rented apartment unit thus have scant evidentiary value. The
Statement of Account[33] (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 notes[34] (Exhibits D to D-13) of petitioner and respondent showing their exchange of affectionate words
and romantic trysts, these, too, are not sufficient to establish Christian Paulos filiation to petitioner as they were not signed by
petitioner and contained no statement of admission by petitioner that he is the father of said child. Thus, even if these notes were
authentic, they do not qualify under Article 172 (2) vis-- vis Article 175 of the Family Code which admits as competent evidence of
illegitimate filiation an admission of filiation in a private handwritten instrument signed by the parent concerned. [35]

Petitioners reliance on our ruling in Lim v. Court of Appeals[36] is misplaced. In the said case, the handwritten letters of petitioner
contained a clear admission that he is the father of private respondents daughter and were signed by him. The Court therein
considered the totality of evidence which established beyond reasonable doubt that petitioner was indeed the father of private
respondents daughter. On the other hand, in Ilano v. Court of Appeals,[37] the Court sustained the appellate courts finding that
private respondents evidence to establish her filiation with and paternity of petitioner was overwhelming, particularly the latters
public acknowledgment of his amorous relationship with private respondents mother, and private respondent as his own child
through acts and words, her testimonial evidence to that effect was fully supported by documentary evidence. The Court thus ruled
that respondent had adduced sufficient proof of continuous possession of status of a spurious child.
Here, while the CA held that Christian Paulo Salas could not claim open and continuous possession of status of an illegitimate child, it
nevertheless considered the testimonial evidence sufficient proof to establish his filiation to petitioner.

An illegitimate child is now also allowed to establish his claimed filiation by any other means allowed by the Rules of Court and
special laws, like his baptismal certificate, a judicial admission, a family Bible in which his name has been entered, common
reputation respecting his pedigree, admission by silence, the testimonies of witnesses, and other kinds of proof admissible under
Rule 130 of the Rules of Court.[38] Reviewing the records, we find the totality of respondents evidence insufficient to establish that
petitioner is the father of Christian Paulo.

The testimonies of respondent and Murillo as to the circumstances of the birth of Christian Paulo, petitioners financial support
while respondent lived in Murillos apartment and his regular visits to her at the said apartment, though replete with details, do not
approximate the overwhelming evidence, documentary and testimonial presented in Ilano. In that case, we sustained the
appellate courts ruling anchored on the following factual findings by the appellate court which was quoted at length in
the ponencia:

It was Artemio who made arrangement for the delivery of Merceditas (sic) at the Manila Sanitarium and Hospital. Prior to the
delivery, Leoncia underwent prenatal examination accompanied by Artemio (TSN, p. 33, 5/17/74). After delivery, they went home to
their residence at EDSA in a car owned and driven by Artemio himself (id. 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. H-1 and H-2 at their residence in
the presence of Leoncia, Merceditas (sic) and of Elynia (TSN, p. 57, 7/18/73; TSN, p. 28, 10/1/73). x x x.

xxx xxx xxx

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.

SO ORDERED.

G.R. No. 206248 February 18, 2014

GRACE M. GRANDE, Petitioner,

vs.
PATRICIO T. ANTONIO, Respondent.

DECISION

VELASCO, JR., J.:

Before this Court is a Petition for Review on Certiorari under Rule 45, assailing the July 24, 2012 Decision 1 and March 5, 2013
Resolution2 of the Court of Appeals (CA) in CA-G.R. CV No. 96406.

As culled from the records, the facts of this case are:

Petitioner Grace Grande (Grande) and respondent Patricio Antonio (Antonio) for a period of time lived together as husband and
wife, although Antonio was at that time already married to someone else. 3 Out of this illicit relationship, two sons were born: Andre
Lewis (on February 8, 1998) and Jerard Patrick (on October 13, 1999). 4 The children were not expressly recognized by respondent as
his own in the Record of Births of the children in the Civil Registry. The parties relationship, however, eventually turned sour, and
Grande left for the United States with her two children in May 2007. This prompted respondent Antonio to file a Petition for Judicial
Approval of Recognition with Prayer to take Parental Authority, Parental Physical Custody, Correction/Change of Surname of Minors
and for the Issuance of Writ of Preliminary Injunction before the Regional Trial Court, Branch 8 of Aparri, Cagayan (RTC), appending a
notarized Deed of Voluntary Recognition of Paternity of the children. 5

On September 28, 2010, the RTC rendered a Decision in favor of herein respondent Antonio, ruling that "[t]he evidence at hand is
overwhelming that the best interest of the children can be promoted if they are under the sole parental authority and physical
custody of [respondent Antonio]."6 Thus, the court a quo decreed the following:

WHEREFORE, foregoing premises considered, the Court hereby grants [Antonios] prayer for recognition and the same is hereby
judicially approved. x x x Consequently, the Court forthwith issues the following Order granting the other reliefs sought in the
Petition, to wit:

a. Ordering the Office of the City Registrar of the City of Makati to cause the entry of the name of [Antonio] as the father of
the aforementioned minors in their respective Certificate of Live Birth and causing the correction/change and/or
annotation of the surnames of said minors in their Certificate of Live Birth from Grande to Antonio;

b. Granting [Antonio] the right to jointly exercise Parental Authority with [Grande] over the persons of their minor children,
Andre Lewis Grande and Jerard Patrick Grande;

c. Granting [Antonio] primary right and immediate custody over the parties minor children Andre Lewis Grandre and Jerard
Patrick Grande who shall stay with [Antonios] residence in the Philippines from Monday until Friday evening and to
[Grandes] custody from Saturday to Sunday evening;
 d. Ordering [Grande] to immediately surrender the persons and custody of minors Andre Lewis Grande and Jerard Patrick
Grande unto [Antonio] for the days covered by the Order;

e. Ordering parties to cease and desist from bringing the aforenamed minors outside of the country, without the written
consent of the other and permission from the court.

f. Ordering parties to give and share the support of the minor children Andre Lewis Grande and Jerard Patrick Grande in the
amount of P30,000 per month at the rate of 70% for [Antonio] and 30% for [Grande]. 7(Emphasis supplied.)

Aggrieved, petitioner Grande moved for reconsideration. However, her motion was denied by the trial court in its Resolution dated
November 22, 20108 for being pro forma and for lack of merit.

Petitioner Grande then filed an appeal with the CA attributing grave error on the part of the RTC for allegedly ruling contrary to the
law and jurisprudence respecting the grant of sole custody to the mother over her illegitimate children. 9 In resolving the appeal, the
appellate 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. 12Lastly, 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 Court 15 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 discretion 17 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].

7.2.2 If filiation has not been expressly recognized by the father, the child shall use the surname of the father upon submission of a
public document or a private handwritten instrument supported by the documents listed in Rule 7.1.2.

7.3 Except in Item 7.2.1, the consent of the illegitimate child is required if he/she has reached the age of majority. The consent may
be contained in a separate instrument duly notarized.

xxxx

Rule 8. Effects of Recognition

8.1 For Births Not Yet Registered

8.1.1 The surname of the father shall be entered as the last name of the child in the Certificate of Live Birth. The Certificate of Live
Birth shall be recorded in the Register of Births.

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:

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.

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:

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

xxxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all
courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide
a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and
shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain
effective unless disapproved by the Supreme Court. (Emphasis supplied.)
Thus, We exercise this power in voiding the above-quoted provisions of the IRR of RA 9255 insofar as it provides the mandatory use
by illegitimate children of their fathers surname upon the latters recognition of his paternity.

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 rights28 at least twice a week, and may only take the children out upon the written consent
of [Grande]:

c. The parties are DIRECTED to give and share in support of the minor children Jerard Patrick and Andre Lewis in the amount
of P30,000.00 per month at the rate of 70% for [Antonio] and 30% for [Grande]; and

d. The case is REMANDED to the Regional Trial Court, Branch 8 of Aparri, Cagayan for the sole purpose of determining the
surname to be chosen by the children Jerard Patrick and Andre Lewis.

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.

G.R. No. 193652 August 5, 2014

Infant JULIAN YUSA Y CARAM, represented by his mother, MA. CHRISTINA YUSAY CARAM, Petitioner,
vs.
Atty. MARIJOY D. SEGUI, Atty. SALLY D. ESCUTIN, VILMA B. CABRERA, and CELIA C. YANGCO,Respondents.

DECISION

VILLARAMA, JR., J.:

Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, and Section 191 of the
Rule on the Writ of Amparo2 seeking to set aside the August 17, 20103 and September 6, 20104Orders of the Regional Trial Court
(RTC), Branch 106 of Quezon City, in Sp. Proc. Case No. Q-10-67604. The RTC had dismissed petitioners petition for the issuance ofa
writ of amparo which petitioner filed in order for her to regain parental authority and custody of Julian Yusay Caram (Baby Julian),
her biological child, from the respondent officers of the Department of Social Welfare and Development (DSWD). The factual
antecedents as gleaned from the records follow:

Petitioner Ma. Christina Yusay Caram(Christina) had an amorous relationship with Marcelino Gicano Constantino III (Marcelino) and
eventually became pregnant with the latters child without the benefit of marriage. After getting pregnant, Christina mislead
Marcelino into believing that she had an abortion when in fact she proceeded to complete the term of her pregnancy. During this
time, she intended to have the child adopted through Sun and Moon Home for Children (Sun and Moon) in Paraaque City to avoid
placing her family ina potentially embarrassing situation for having a second illegitimate son.5

On July 26, 2009, Christina gavebirth to Baby Julian at Amang Rodriguez Memorial MedicalCenter, Marikina City. 6Sun and Moon
shouldered all the hospital and medical expenses. On August 13, 2009, Christina voluntarily surrendered Baby Julian by way of a
Deed of Voluntary Commitment7 to the DSWD.

On November 26, 2009, Marcelino suffered a heart attack and died 8 without knowing about the birth of his son. Thereafter, during
the wake, Christina disclosed to Marcelinos family that she and the deceased had a son that she gave up for adoption due to
financial distress and initial embarrassment. Marcelinos family was taken aback by the revelation and sympathized with Christina.
After the emotional revelation, they vowed to help her recover and raise the baby. 9 On November 27, 2009, the DSWD, through
Secretary Esperanza I. Cabral issued a certificate 10declaring Baby Julian as "Legally Available for Adoption." A local matching
conference was held on January 27, 2010 and on February 5, 2010, Baby Julian was "matched" with the spouses Vergel and Filomina
Medina (Medina Spouses) of the Kaisahang Bahay Foundation. Supervised trial custody then commenced.11

On May 5, 2010, Christina who had changed her mind about the adoption, wrote a letter to the DSWDasking for the suspension of
Baby Julians adoption proceedings. She alsosaid she wanted her family back together. 12

On May 28, 2010, the DSWD, through respondent Atty. Marijoy D. Segui, sent a Memorandum 13 to DSWD Assistant Secretary Vilma
B. Cabrera informing her that the certificate declaring Baby Julian legally available for adoption had attained finality on November
13, 2009, or three months after Christina signed the Deed of Voluntary Commitment which terminated her parental authority and
effectively made Baby Julian a ward of the State. The said Memorandum was noted by respondent Atty. Sally D. Escutin, Director IV
of the Legal Service, DSWD.

On July 12, 2010, Noel Gicano Constantino, Marcelinos brother, sent a letter to Atty. Escutin informing her that a DNA testing was
scheduled on July 16, 2010 at the DNA Analysis Laboratory at the University of the Philippines. 14

On July 16, 2010, Assistant Secretary Cabrera sent a letter15 to Noel Constantino stating that it would not allow Baby Julian to
undergo DNA testing. Assistant Secretary Cabrera informed Noel Constantino that the procedures followed relative to the
certification on the availability of the child for adoption and the childs subsequent placement to prospective adoptive parents were
proper, and that the DSWD was no longer in the position to stop the adoption process. Assistant Secretary Cabrera further stated
that should Christina wish to reacquire her parental authority over Baby Julian or halt the adoption process, she may bring the
matter to the regular courts as the reglementary period for her to regain her parental rights had already lapsed under Section 7 of
Republic Act (R.A.) No. 9523.16

On July 27, 2010, Christina filed a petition 17 for the issuance of a writ of amparo before the RTC of Quezon City seeking to obtain
custody of Baby Julian from Atty. Segui, Atty. Escutin, Assistant Secretary Cabrera and Acting Secretary Celia C. Yangco, all of the
DSWD.

In her petition, Christina accused respondents of "blackmailing" her into surrendering custody of her childto the DSWD utilizing what
she claims to be an invalid certificate of availability for adoption which respondents allegedly used as basis to misrepresent that all
legal requisites for adoption of the minor child had been complied with.

Christina argued that by making these misrepresentations, the respondents had acted beyond the scope of their legal authority
thereby causing the enforced disappearance of the said child and depriving her of her custodial rights and parental authority over
him.

On the basis of the said petition,the RTC, Branch 106 of Quezon City, through its Presiding Judge, the Honorable Angelene Mary W.
Quimpo-Sale, issued a Writ of Amparo18 on July 28, 2010 commanding the four respondents to produce the body of Baby Julian at a
hearing scheduled on August 4, 2010. Respondents were alsorequired to file their verified written return to the writ pursuant to
Section 919 of the Amparo Rule, within five working days from the service of the writ.

The respondents complied with the writ and filed their Return 20 on August 2, 2010 praying that the petition be denied for being the
improper remedy to avail of in a case relating toa biological parents custodial rights over her child.

On August 4, 2010, respondents appeared before the RTC but respondents did not bring the child, stating that threats of kidnapping
were made on the child and his caregivers. To give respondents another chance, the RTC reset the hearing to August 5, 2010.

At the August 5, 2010 hearing, the Office of the Solicitor General (OSG) entered its appearance as representative of the State and
prayed that its lawyers be given time to file their memorandum or position paper in this case. In turn, the RTC acknowledged the
appearance of the OSG and allowed its representatives to actively participate in the arguments raised during the said hearing.
Relative to the matter of the parties submitting additional pleadings, Judge Sale narrowed the issues to be discussed by providing for
the following guidelines, thus:

To abbreviate the proceedings, in view of all the manifestations and counter-manifestations made by the counsels, the court
enjoined the parties to file their respective position papers on the following issues:

1. Whether or not this court has jurisdiction over the instant case;

2. Whether or not this petition isthe proper remedy based on the facts of the case and prayer in the petition; and

3. Whether or not the prayer in the petition should be granted and custody of the child be given to his biological mother.

The parties were given five (5) days from today to file their respective position papers based on these three main issues. They may
include other related issues they deem essential for the resolution of this case. Set this case for further hearing, if necessary, on
August 18, 2010 at 9:00 a.m.21
In the same order, Judge Sale alsoacknowledged that the child subject of the case was brought before the court and the petitioner
was allowed to see him and take photographs of him.

On August 17, 2010, the RTC dismissed the petition for issuance of a writ of amparo without prejudice to the filing of the
appropriate action in court. The RTC held that Christina availed of the wrong remedy to regain custody of her child Baby Julian.22 The
RTC further stated that Christina should have filed a civil case for custody of her child as laid down in the Family Code and the Rule
on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors. If there is extreme urgency to secure custody of a
minor who has been illegallydetained by another, a petition for the issuance of a writ of habeas corpus may be availed of, either as a
principal or ancillary remedy, pursuant to the Rule on Custody of Minors and Writ of Habeas Corpus inRelation to Custody of
Minors.23

On August 20, 2010, Christina filed a motion for reconsideration 24 arguing that since the RTC assumed jurisdiction of the petition for
the issuance of a writ of amparo, the latter is duty-bound to dispose the case on the merits. 25 The RTC, however, deniedChristinas
motion for reconsideration on September 6, 2010 maintaining that the latter availed of the wrong remedy and that the Supreme
Court intended the writ of amparo to address the problem of extrajudicial killings and enforced disappearances. 26

On September 28, 2010, Christina directly elevated the case before this Court, via a petition for review on certiorari under Rule 45 of
the 1997 Rules of Civil Procedure, as amended, in relation to Section 19 of the Rule on the Writ of Amparo. In her petition, Christina
prayed that the Court (1) set aside the August 17, 2010 and September 6, 2010 Orders of the RTC, (2) declare R.A. No. 9523
unconstitutional for being contrary to A.M. No. 02-6-02-SC,27 which was promulgated by the Supreme Court, and for violating the
doctrine of separation of powers, (3) declare the "enforced separation" between her and Baby Julian as violative of her rights to life,
liberty and security, and (4) grant her the privilege of availing the benefits of a writ of amparo so she could be reunited with her
son.28

The only relevant issue presented before the Court worthy of attention is whether a petition for a writ of amparo is the proper
recourse for obtaining parental authority and custody of a minor child. This Court will not belabor to discuss Christinas
argumentsrelating to the supposedunconstitutionality or R.A. No. 9523 as Congress has the plenary power to repeal, alter and
modify existing laws29 and A.M. No. 02-6-02-SC functions only as a means to enforce the provisions of all adoption and adoption-
related statutes before the courts.

Now, in her petition, Christina argues that the life, liberty and security of Baby Julian is being violated or threatened by the
respondent DSWD officers enforcement of an illegal Deed of Voluntary Commitment between her and Sun and Moon. She claims
thatshe had been "blackmailed" through the said Deed by the DSWD officers and Sun and Moons representatives into surrendering
her child thereby causing the "forced separation" of the said infant from his mother. Furthermore, she also reiterates that the
respondent DSWD officers acted beyond the scope of their authority when they deprived her of Baby Julians custody. 30

The Court rejects petitioners contentions and denies the petition.

Section 1 of the Rule on the Writ of Amparo provides as follows:

SECTION 1. Petition. The petition for a writ of amparois a remedy available to any person whose right to life, liberty and security is
violated or threatened with violation by an unlawful actor omission of a public official or employee, or of a private individual or
entity.

The writ shall cover extralegal killings and enforced disappearances or threats thereof.

In the landmark case of Secretary of National Defense, et al. v. Manalo, et al.,31 this Court held:

[T]he AmparoRule was intended to address the intractable problem of "extralegal killings" and "enforced disappearances," its
coverage, in its present form, is confined to these two instances or to threats thereof. "Extralegal killings" are "killings committed
without due process of law, i.e., without legal safeguards or judicial proceedings." On the other hand, "enforced disappearances" are
"attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized
groupsor private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose
the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons
outside the protection of law.

This pronouncement on the coverage of the writ was further cemented in the latter case of Lozada, Jr. v. Macapagal-Arroyo32 where
this Court explicitly declared that as it stands, the writ of amparo is confined only to cases of extrajudicial killings and enforced
disappearances, or to threats thereof. As to what constitutes "enforced disappearance," the Court in Navia v. Pardico 33 enumerated
the elementsconstituting "enforced disappearances" as the term is statutorily defined in Section 3(g) of R.A. No. 9851 34 to wit:

(a) that there be an arrest, detention, abduction or any form of deprivation of liberty;

(b) that it be carried out by, or with the authorization, support or acquiescence of, the State ora political organization;

(c) that it be followed by the State or political organizations refusal to acknowledge or give information on the fate or
whereabouts of the person subject of the amparopetition; and,
 (d) that the intention for such refusal isto remove subject person from the protection of the law for a prolonged period of
time.1wphi1

In this case, Christina alleged that the respondent DSWD officers caused her "enforced separation" from Baby Julian and that their
action amounted to an "enforced disappearance" within the context of the Amparo rule. Contrary to her position, however, the
respondent DSWD officers never concealed Baby Julian's whereabouts. In fact, Christina obtained a copy of the DSWD's May 28,
2010 Memorandum35 explicitly stating that Baby Julian was in the custody of the Medina Spouses when she filed her petition before
the RTC. Besides, she even admitted in her petition for review on certiorari that the respondent DSWD officers presented Baby Julian
before the RTC during the hearing held in the afternoon of August 5, 2010. 36 There is therefore, no "enforced disappearance" as
used in the context of the Amparo rule as the third and fourth elements are missing.

Christina's directly accusing the respondents of forcibly separating her from her child and placing the latter up for adoption,
supposedly without complying with the necessary legal requisites to qualify the child for adoption, clearly indicates that she is not
searching for a lost child but asserting her parental authority over the child and contesting custody over him. 37 Since it is extant from
the pleadings filed that what is involved is the issue of child custody and the exercise of parental rights over a child, who, for all
intents and purposes, has been legally considered a ward of the State, the Amparo rule cannot be properly applied.

To reiterate, the privilege of the writ of amparo is a remedy available to victims of extra-judicial killings and enforced disappearances
or threats of a similar nature, regardless of whether the perpetrator of the unlawful act or omission is a public official or employee
or a private individual. It is envisioned basically to protect and guarantee the right to life, liberty and security of persons, free from
fears and threats that vitiate the quality of life.

WHEREFORE, the petition is DENIED. The August 17, 2010 and September 6, 2010 Orders of the Regional Trial Court, Branch 106,
Quezon City in Sp. Proc. Case No. Q-10-67604 are AFFIRMED without prejudice to petitioner's right to avail of proper legal remedies
afforded to her by law and related rules.

No costs.

SO ORDERED.

G.R. No. 172471 November 12, 2012

ANTONIO PERLA, Petitioner,

vs.
MIRASOL BARING and RANDY PERLA, Respondents.

DECISION

DEL CASTILLO, J.:

"An order for x x x support x x x must be issued only if paternity or filiation is established by clear and convincing evidence."1

Assailed in this Petition for Review on Certiorari 2 is the March 31, 2005 Decision3 of the Court of Appeals (CA) in CA-G.R. CV No.
79312 which dismissed petitioner Antonio Perlas (Antonio) appeal from the February 26, 2003 Decision 4 of the Regional Trial Court
(RTC) of Antipolo City, Branch 71 in Civil Case No. 96-3952, ordering him to give monthly support to respondent Randy Perla (Randy).
Likewise assailed is the CAs May 5, 2006 Resolution5denying the motion for reconsideration thereto.

Factual Antecedents

Respondent Mirasol Baring (Mirasol) and her then minor son, Randy (collectively respondents), filed before the RTC a Complaint6 for
support against Antonio.

They alleged in said Complaint that Mirasol and Antonio lived together as common-law spouses for two years. As a result of said
cohabitation, Randy was born on November 11, 1983. However, when Antonio landed a job as seaman, he abandoned them and
failed to give any support to his son. Respondents thus prayed that Antonio be ordered to support Randy.

In his Answer with Counterclaim,7 Antonio, who is now married and has a family of his own, denied having fathered Randy. Although
he admitted to having known Mirasol, he averred that she never became his common-law wife nor was she treated as such. And
since Mirasol had been intimidating and pestering him as early as 1992 with various suits by insisting that Randy is his son, Antonio
sought moral and exemplary damages by way of counterclaim from respondents.

During trial, Mirasol testified that from 1981 to 1983, she lived in Upper Bicutan, Taguig where Antonio was a neighbor.8 In the first
week of January 1981, Antonio courted her9 and eventually became her first boyfriend.10Antonio would then visit her everyday until
1982.11 Upon clarificatory question by the court whether she and Antonio eventually lived together as husband and wife, Mirasol
answered that they were just sweethearts.12
When Mirasol became pregnant in 1983, Antonio assured her that he would support her. 13 Eventually, however, Antonio started to
evade her.14 Mirasol last saw Antonio in 1983 but could not remember the particular month. 15

On November 11, 1983, Mirasol gave birth to Randy.16 She presented Randys Certificate of Live Birth 17 and Baptismal
Certificate18 indicating her and Antonio as parents of the child. Mirasol testified that she and Antonio supplied the information in the
said certificates.19 Antonio supplied his name and birthplace after Erlinda Balmori (Erlinda), the "hilot" who assisted in Mirasols
delivery of Randy, went to his house to solicit the said information. 20Mirasol also claimed that it was Erlinda who supplied the date
and place of marriage of the parents so that the latter can file the birth certificate. 21 Mirasol likewise confirmed that she is the same
"Mirasol Perla" who signed as the informant therein.22

Next to take the witness stand was Randy who at that time was just 15 years old. 23 Randy claimed that he knew Antonio to be the
husband of her mother and as his father.24 He recounted having met him for the first time in 1994 in the house of his Aunt Lelita,
Antonios sister, where he was vacationing.25 During their encounter, Randy called Antonio "Papa" and kissed his hand while the
latter hugged him.26 When Randy asked him for support, Antonio promised that he would support him. 27 Randy further testified that
during his one-week stay in his Aunt Lelitas place, the latter treated him as member of the family. 28

For her part, Aurora Ducay testified that she knew both Mirasol and Antonio as they were neighbors in Upper Bicutan, Taguig.
Presently, Antonio is still her neighbor in the said place.29 According to her, she knew of Mirasols and Antonios relationship because
aside from seeing Antonio frequenting the house of Mirasol, she asked Antonio about it. 30 She further narrated that the two have a
son named Randy31 and that Antonios mother even tried to get the child from Mirasol. 32

Testifying as an adverse witness for the respondents, Antonio admitted having sexual intercourse with Mirasol in February and
August33 of 1981.34 When shown with Randys Certificate of Live Birth and asked whether he had a hand in the preparation of the
same, Antonio answered in the negative.35

Testifying for himself, Antonio denied having courted Mirasol on January 5, 1981 because during that time, he was studying in Iloilo
City. He graduated from the Iloilo Maritime Academy in March of 198136 as shown by his diploma.37 It was only in May 1981 or after
his graduation that he came to Manila. Further, he denied having any relationship with Mirasol. 38 He claimed that he had sexual
intercourse with Mirasol only once which happened in the month of September or October of 1981. 39

Antonio came to know that he was being imputed as the father of Randy only when Mirasol charged him with abandonment of
minor in 1994, which was also the first time he saw Randy.40 Prior to that, neither Mirasol nor her sister, Norma, whom he met a few
times told him about the child.41

Anent Randys Certificate of Live Birth, Antonio testified as to several inaccuracies in the entries thereon. According to him, his
middle initial is "E" and not "A" as appearing in the said certificate of live birth. 42 Also, he is not a protestant and a laborer as
indicated in said certificate.43 Antonio likewise alleged that Mirasol only made up the entries with respect to their marriage on
October 28, 1981.44

Daisy Balmori Rodriguez (Daisy), for her part, testified that she came to know Mirasol through her mother Erlinda who was the
"hilot" when Mirasol gave birth to Randy.45 She narrated that her mother asked Mirasol the details to be entered in the childs
Certificate of Live Birth such as the names of the parents, date and place of marriage, and the intended name of the child. 46 Her
mother also told her that Mirasols son has no acknowledged father.47 Daisy likewise claimed that Mirasol later left to her care the
then infant Randy until Mirasol took him away without permission when the child was almost five years old.48

Ruling of the Regional Trial Court

After trial, the RTC rendered a Decision49 dated February 26, 2003 ordering Antonio to support Randy.

The RTC ruled that Mirasol and Randy are entitled to the relief sought since Antonio himself admitted that he had sex with Mirasol.
It also noted that when the 15-year old Randy testified, he categorically declared Antonio as his father. The RTC opined that Mirasol
would not have gone through the trouble of exposing herself to humiliation, shame and ridicule of public trial if her allegations were
untrue. Antonios counterclaim was denied due to the absence of bad faith or ill-motive on the part of Mirasol and Randy.

The dispositive portion of the RTC Decision reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff Randy Perla and against the defendant Antonio Perla, ordering
the latter to give a reasonable monthly support of P5,000.00 to Randy Perla for his sustenance and support to be given to him from
the time of the filing of this Complaint.

Defendants counterclaim is DISMISSED.

SO ORDERED.50

Antonio filed a Notice of Appeal51 which was given due course by the RTC.52

Ruling of the Court of Appeals

In its Decision53 of March 31, 2005, the CA upheld Randys illegitimate filiation based on the certified true copies of his birth
certificate and of his baptismal certificate identifying Antonio as his father. According to the appellate court, while these documents
do not bear the signature of Antonio, they are proofs that Antonio is the known, imputed and identified father of Randy. The CA also
affirmed the trial courts findings on the credibility of the witnesses and its appreciation of facts, as there was nothing to suggest
that the RTC erred in such respects. It highlighted Antonios vacillation in his testimony regarding the number of times he had sex
with Mirasol and concluded that the same is a clear badge of his lack of candor - a good reason to disregard his denials. Thus:

WHEREFORE, the appeal is DISMISSED and the appealed Decision is AFFIRMED.

SO ORDERED.54

Antonio filed a Motion for Reconsideration55 which was denied by the CA in its Resolution56 of May 5, 2006.

Hence, this Petition for Review on Certiorari.

Issue

The pivotal issue to be resolved in this case is whether the lower courts correctly ordered Antonio to support Randy.

Our Ruling

There is merit in the petition.

A re-examination of the factual findings

of the RTC and the CA is proper in this
case.

"Generally, factual findings of trial courts, when affirmed by the CA, are binding on this Court." 57 However, this rule admits of certain
exceptions such as when the finding is grounded entirely on speculations, surmises or conjectures or when the judgment of the CA is
based on misapprehension of facts. 58 As this case falls under these exceptions, the Court is constrained to re-examine the factual
findings of the lower courts.

Since respondents complaint for support

is anchored on Randys alleged
illegitimate filiation to Antonio, the lower
courts should have first made a
determination of the same.

Respondents Complaint for support is based on Randys alleged illegitimate filiation to Antonio. Hence, for Randy to be entitled for
support, his filiation must be established with sufficient certainty. A review of the Decision of the RTC would show that it is bereft of
any discussion regarding Randys filiation. Although the appellate court, for its part, cited the applicable provision on illegitimate
filiation, it merely declared the certified true copies of Randys birth certificate and baptismal certificate both identifying Antonio as
the father as good proofs of his filiation with Randy and nothing more. This is despite the fact that the said documents do not bear
Antonios signature. "Time and again, this Court has ruled that a high standard of proof is required to establish paternity and
filiation. An order for x x x 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." 59

Respondents failed to establish Randys

illegitimate filiation to Antonio.

The rules for establishing filiation are found in Articles 172 and 175 of the Family Code which provide as follows:

Article 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.

xxxx
Article 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate
children.

xxxx

Respondents presented the Certificate of Live Birth of Randy identifying Antonio as the father. However, said certificate has no
probative value to establish Randys filiation to Antonio since the latter had not signed the same. 60It is settled 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 said certificate." 61 We also cannot lend credence to Mirasols claim that Antonio
supplied certain information through Erlinda. Aside from Antonios denial in having any participation in the preparation of the
document as well as the absence of his signature thereon, respondents did not present Erlinda to confirm that Antonio indeed
supplied certain entries in Randys birth certificate. Besides, the several unexplained discrepancies in Antonios personal
circumstances as reflected in the subject birth certificate are manifestations of Antonios non-participation in its preparation. Most
important, it was Mirasol who signed as informant thereon which she confirmed on the witness stand.

Neither does the testimony of Randy establish his illegitimate filiation. That during their first encounter in 1994 Randy called Antonio
"Papa" and kissed his hand while Antonio hugged him and promised to support him; or that his Aunt Lelita treated him as a relative
and was good to him during his one-week stay in her place, cannot be considered as indications of Randys open and continuous
possession of the status of an illegitimate child under the second paragraph of Article 172(1). "[T]o prove open and continuous
possession of the status of an illegitimate child, there must be evidence of the manifestation of the permanent intention of the
supposed father to consider the child as his, by continuous and clear manifestations of parental affection and care, which cannot be
attributed to pure charity.1wphi1 Such acts must be of such a nature that they reveal not only the conviction of paternity, but also
the apparent desire to have and treat the child as such in all relations in society and in life, not accidentally, but
continuously."62 Here, the single instance that Antonio allegedly hugged Randy and promised to support him cannot be considered
as proof of continuous possession of the status of a child. To emphasize, "[t]he fathers conduct towards his son must be
spontaneous and uninterrupted for this ground to exist."63 Here, except for that singular occasion in which they met, there are no
other acts of Antonio treating Randy as his son. 64 Neither can Antonios paternity be deduced from how his sister Lelita treated
Randy. To this Court, Lelitas actuations could have been done due to charity or some other reasons.

Anent Randys baptismal certificate, we cannot agree with the CA that the same is a good proof of Antonios paternity of Randy. Just
like in a birth certificate, the lack of participation of the supposed father in the preparation of a baptismal certificate renders this
document incompetent to prove paternity.65 And "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. Thus, x x x 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."66

This Court cannot likewise agree with the RTCs conclusion that Antonio fathered Randy merely on the basis of his admission that he
had sexual encounters with Mirasol. Neither does it agree with the CA that the inconsistencies in Antonios testimony with regard to
the number of times he had sexual intercourse with Mirasol are good reasons to disregard his denials and uphold the respondents
claims. It is well to stress that as plaintiff, Mirasol has the burden of proving her affirmative allegation that Antonio is the father of
her son Randy.67 She must rely on the strength of her evidence and not on the weakness of the defense. 68 As Randy was born on
November 11, 1983, it was incumbent upon Mirasol to prove that she had sexual intercourse with Antonio prior to the usual period
of pregnancy or nine months before the birth of Randy. This crucial period therefore is during the early part of the first quarter of
1983. However, nothing from Mirasols testimony indicates that she had sexual intercourse with Antonio during that time.

She merely testified that she last met with Antonio in 1983 but could not remember the particular month. 69 Plainly, this hardly
means anything not only because it was not established that the said meeting took place during that crucial period but also because
Mirasol never mentioned that they had sexual contact during their meeting.

Antonios admission of sexual intercourse with Mirasol does not likewise by any means strengthen respondents theory that he
fathered Randy. When Antonio testified as an adverse witness for the respondents, he stated that he had sexual intercourse with
Mirasol in February and August of 1981. Later testifying as witness for his own behalf, he mentioned that he had a one night affair
with Mirasol which happened in the month of September or October of 1981. Assuming that he indeed had sexual contact with
Mirasol on the dates mentioned, still, none of these sexual congresses could have led to the conception of Randy who was born two
years later in 1983.

All told, it is clear that respondents failed to establish Randys illegitimate filiation to Antonio. Hence, the order for Antonio to
support Randy has no basis.

WHEREFORE, the Petition for Review on Certiorari is GRANTED. The assailed Decision dated March 31, 2005 and Resolution dated
May 5, 2006 of the Court of Appeals in CA-G.R. CV No. 79312 are REVERSED and SER ASIDE and the Decision dated February 26, 2003
of the Regional Trial Court of Antipolo City, Branch 71, in Civil Case No. 96-3952 is VACATED. A new one is entered DISMISSING the
Complaint for Support filed by Mirasol Baring and Randy Perla against Antonio Perla.

SO ORDERED.
G.R. Nos. 175279-80 June 5, 2013

SUSAN LIM-LUA, Petitioner,

vs.
DANILO Y. LUA, Respondent.

DECISION

VILLARAMA, JR., J.:

In this petition for review on certiorari under Rule 45, petitioner seeks to set aside the Decision1 dated April 20, 2006 and
Resolution2 dated October 26, 2006 of the Court of Appeals (CA) dismissing her petition for contempt (CA-G.R. SP No. 01154) and
granting respondent's petition for certiorari (CA-G.R. SP No. 01315).

The factual background is as follows:

On September 3, 2003,3 petitioner Susan Lim-Lua filed an action for the declaration of nullity of her marriage with respondent Danilo
Y. Lua, docketed as Civil Case No. CEB-29346 of the Regional Trial Court (RTC) of Cebu City, Branch 14.

In her prayer for support pendente lite for herself and her two children, petitioner sought the amount of P500,000.00 as monthly
support, citing respondents huge earnings from salaries and dividends in several companies and businesses here and abroad. 4

After due hearing, Judge Raphael B. Yrastorza, Sr. issued an Order5 dated March 31, 2004 granting support pendente lite, as follows:

From the evidence already adduced by the parties, the amount of Two Hundred Fifty (P250,000.00) Thousand Pesos would be
sufficient to take care of the needs of the plaintiff. This amount excludes the One hundred thirty-five (P135,000.00) Thousand Pesos
for medical attendance expenses needed by plaintiff for the operation of both her eyes which is demandable upon the conduct of
such operation. The amounts already extended to the two (2) children, being a commendable act of defendant, should be continued
by him considering the vast financial resources at his disposal.

According to Art. 203 of the Family Code, support is demandable from the time plaintiff needed the said support but is payable only
from the date of judicial demand. Since the instant complaint was filed on 03 September 2003, the amount of Two Hundred Fifty
(P250,000.00) Thousand should be paid by defendant to plaintiff retroactively to such date until the hearing of the support pendente
lite. P250,000.00 x 7 corresponding to the seven (7) months that lapsed from September, 2003 to March 2004 would tantamount to
a total of One Million Seven Hundred Fifty (P1,750,000.00) Thousand Pesos. Thereafter, starting the month of April 2004, until
otherwise ordered by this Court, defendant is ordered to pay a monthly support of Two Hundred Fifty Thousand (P250,000.00) Pesos
payable within the first five (5) days of each corresponding month pursuant to the third paragraph of Art. 203 of the Family Code of
the Philippines. The monthly support of P250,000.00 is without prejudice to any increase or decrease thereof that this Court may
grant plaintiff as the circumstances may warrant i.e. depending on the proof submitted by the parties during the proceedings for the
main action for support.6

Respondent filed a motion for reconsideration, 7 asserting that petitioner is not entitled to spousal support considering that she does
not maintain for herself a separate dwelling from their children and respondent has continued to support the family for their
sustenance and well-being in accordance with familys social and financial standing. As to the P250,000.00 granted by the trial court
as monthly support pendente lite, as well as the P1,750,000.00 retroactive support, respondent found it unconscionable and beyond
the intendment of the law for not having considered the needs of the respondent.

In its May 13, 2004 Order, the trial court stated that the March 31, 2004 Order had become final and executory since respondents
motion for reconsideration is treated as a mere scrap of paper for violation of the threeday notice period under Section 4, Rule 15 of
the 1997 Rules of Civil Procedure, as amended, and therefore did not interrupt the running of the period to appeal. Respondent was
given ten (10) days to show cause why he should not be held in contempt of the court for disregarding the March 31, 2004 order
granting support pendente lite.8

His second motion for reconsideration having been denied, respondent filed a petition for certiorari in the CA.

On April 12, 2005, the CA rendered its Decision,9 finding merit in respondents contention that the trial court gravely abused its
discretion in granting P250,000.00 monthly support to petitioner without evidence to prove his actual income. The said court thus
decreed:

WHEREFORE, foregoing premises considered, this petition is given due course. The assailed Orders dated March 31, 2004, May 13,
2004, June 4, 2004 and June 18, 2004 of the Regional Trial Court, Branch 14, Cebu City issued in Civil Case No. CEB No. 29346
entitled "Susan Lim Lua versus Danilo Y. Lua" are hereby nullified and set aside and instead a new one is entered ordering herein
petitioner:

a) to pay private respondent a monthly support pendente lite of P115,000.00 beginning the month of April 2005 and every
month thereafter within the first five (5) days thereof;
 b) to pay the private respondent the amount of P115,000.00 a month multiplied by the number of months starting from
September 2003 until March 2005 less than the amount supposedly given by petitioner to the private respondent as her
and their two (2) children monthly support; and

c) to pay the costs.

SO ORDERED.10

Neither of the parties appealed this decision of the CA. In a Compliance 11 dated June 28, 2005, respondent attached a copy of a
check he issued in the amount of P162,651.90 payable to petitioner. Respondent explained that, as decreed in the CA decision, he
deducted from the amount of support in arrears (September 3, 2003 to March 2005) ordered by the CA -- P2,185,000.00 --
plus P460,000.00 (April, May, June and July 2005), totaling P2,645,000.00, the advances given by him to his children and petitioner in
the sum of P2,482,348.16 (with attached photocopies of receipts/billings).

In her Comment to Compliance with Motion for Issuance of a Writ of Execution, 12 petitioner asserted that none of the expenses
deducted by respondent may be chargeable as part of the monthly support contemplated by the CA in CA-G.R. SP No. 84740.

On September 27, 2005, the trial court issued an Order 13 granting petitioners motion for issuance of a writ of execution as it
rejected respondents interpretation of the CA decision. Respondent filed a motion for reconsideration and subsequently also filed a
motion for inhibition of Judge Raphael B. Yrastorza, Sr. On November 25, 2005, Judge Yrastorza, Sr. issued an Order14 denying both
motions.

WHEREFORE, in view of the foregoing premises, both motions are DENIED. Since a second motion for reconsideration is prohibited
under the Rules, this denial has attained finality; let, therefore, a writ of execution be issued in favor of plaintiff as against defendant
for the accumulated support in arrears pendente lite.

Notify both parties of this Order.

SO ORDERED.15

Since respondent still failed and refused to pay the support in arrears pendente lite, petitioner filed in the CA a Petition for
Contempt of Court with Damages, docketed as CA-G.R. SP No. 01154 ("Susan Lim Lua versus Danilo Y. Lua"). Respondent, on the
other hand, filed CA-G.R. SP No. 01315, a Petition for Certiorari under Rule 65 of the Rules of Court ("Danilo Y. Lua versus Hon.
Raphael B. Yrastorza, Sr., in his capacity as Presiding Judge of Regional Trial Court of Cebu, Branch 14, and Susan Lim Lua"). The two
cases were consolidated.

By Decision dated April 20, 2006, the CA set aside the assailed orders of the trial court, as follows:

WHEREFORE, judgment is hereby rendered:

a) DISMISSING, for lack of merit, the case of Petition for Contempt of Court with Damages filed by Susan Lim Lua against
Danilo Y. Lua with docket no. SP. CA-GR No. 01154;

b) GRANTING Danilo Y. Luas Petition for Certiorari docketed as SP. CA-GR No. 01315. Consequently, the assailed Orders
dated 27 September 2005 and 25 November 2005 of the Regional Trial Court, Branch 14, Cebu City issued in Civil Case No.
CEB-29346 entitled "Susan Lim Lua versus Danilo Y. Lua, are hereby NULLIFIED and SET ASIDE, and instead a new one is
entered:

i. ORDERING the deduction of the amount of PhP2,482,348.16 plus 946,465.64, or a total of PhP3,428,813.80 from
the current total support in arrears of Danilo Y. Lua to his wife, Susan Lim Lua and their two (2) children;

ii. ORDERING Danilo Y. Lua to resume payment of his monthly support of PhP115,000.00 pesos starting from the
time payment of this amount was deferred by him subject to the deductions aforementioned.

iii. DIRECTING the issuance of a permanent writ of preliminary injunction.

SO ORDERED.16

The appellate court said that the trial court should not have completely disregarded the expenses incurred by respondent consisting
of the purchase and maintenance of the two cars, payment of tuition fees, travel expenses, and the credit card purchases involving
groceries, dry goods and books, which certainly inured to the benefit not only of the two children, but their mother (petitioner) as
well. It held that respondents act of deferring the monthly support adjudged in CA-G.R. SP No. 84740 was not contumacious as it
was anchored on valid and justifiable reasons. Respondent said he just wanted the issue of whether to deduct his advances be
settled first in view of the different interpretation by the trial court of the appellate courts decision in CA-G.R. SP No. 84740. It also
noted the lack of contribution from the petitioner in the joint obligation of spouses to support their children.

Petitioner filed a motion for reconsideration but it was denied by the CA.
Hence, this petition raising the following errors allegedly committed by the CA:

I.

THE HONORABLE COURT ERRED IN NOT FINDING RESPONDENT GUILTY OF INDIRECT CONTEMPT.

II.

THE HONORABLE COURT ERRED IN ORDERING THE DEDUCTION OF THE AMOUNT OF PHP2,482,348.16 PLUS 946,465.64, OR
A TOTAL OF PHP3,428,813.80 FROM THE CURRENT TOTAL SUPPORT IN ARREARS OF THE RESPONDENT TO THE PETITIONER
AND THEIR CHILDREN.17

The main issue is whether certain expenses already incurred by the respondent may be deducted from the total support in arrears
owing to petitioner and her children pursuant to the Decision dated April 12, 2005 in CA-G.R. SP No. 84740.

The pertinent provision of the Family Code of the Philippines provides:

Article 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and
transportation, in keeping with the financial capacity of the family.

The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training
for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from
school, or to and from place of work. (Emphasis supplied.)

Petitioner argues that it was patently erroneous for the CA to have allowed the deduction of the value of the two cars and their
maintenance costs from the support in arrears, as these items are not indispensable to the sustenance of the family or in keeping
them alive. She points out that in the Decision in CA-G.R. SP No. 84740, the CA already considered the said items which it deemed
chargeable to respondent, while the monthly support pendente lite (P115,000.00) was fixed on the basis of the documentary
evidence of respondents alleged income from various businesses and petitioners testimony that she needed P113,000.00 for the
maintenance of the household and other miscellaneous expenses excluding the P135,000.00 medical attendance expenses of
petitioner.

Respondent, on the other hand, contends that disallowing the subject deductions would result in unjust enrichment, thus making
him pay for the same obligation twice. Since petitioner and the children resided in one residence, the groceries and dry goods
purchased by the children using respondents credit card, totalling P594,151.58 for the period September 2003 to June 2005 were
not consumed by the children alone but shared with their mother. As to the Volkswagen Beetle and BMW 316i respondent bought
for his daughter Angelli Suzanne Lua and Daniel Ryan Lua, respectively, these, too, are to be considered advances for support, in
keeping with the financial capacity of the family. Respondent stressed that being children of parents belonging to the upper-class
society, Angelli and Daniel Ryan had never in their entire life commuted from one place to another, nor do they eat their meals at
"carinderias". Hence, the cars and their maintenance are indispensable to the childrens day-to-day living, the value of which were
properly deducted from the arrearages in support pendente lite ordered by the trial and appellate courts.

As a matter of law, the amount of support which those related by marriage and family relationship is generally obliged to give each
other shall be in proportion to the resources or means of the giver and to the needs of the recipient. 18 Such support comprises
everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the
financial capacity of the family.

Upon receipt of a verified petition for declaration of absolute nullity of void marriage or for annulment of voidable marriage, or for
legal separation, and at any time during the proceeding, the court, motu proprio or upon verified application of any of the parties,
guardian or designated custodian, may temporarily grant support pendente lite prior to the rendition of judgment or final
order.19 Because of its provisional nature, a court does not need to delve fully into the merits of the case before it can settle an
application for this relief. All that a court is tasked to do is determine the kind and amount of evidence which may suffice to enable it
to justly resolve the application. It is enough that the facts be established by affidavits or other documentary evidence appearing in
the record.20

In this case, the amount of monthly support pendente lite for petitioner and her two children was determined after due hearing and
submission of documentary evidence by the parties. Although the amount fixed by the trial court was reduced on appeal, it is clear
that the monthly support pendente lite of P115,000.00 ordered by the CA was intended primarily for the sustenance of petitioner
and her children, e.g., food, clothing, salaries of drivers and house helpers, and other household expenses. Petitioners testimony
also mentioned the cost of regular therapy for her scoliosis and vitamins/medicines.

ATTY. ZOSA:

xxxx

Q How much do you spend for your food and your two (2) children every month?

A Presently, Sir?
ATTY. ZOSA:

Yes.

A For the food alone, I spend not over P40,000.00 to P50,000.00 a month for the food alone.

xxxx

ATTY. ZOSA:

Q What other expenses do you incur in living in that place?

A The normal household and the normal expenses for a family to have a decent living, Sir.

Q How much other expenses do you incur?

WITNESS:

A For other expenses, is around over a P100,000.00, Sir.

Q Why do you incur that much amount?

A For the clothing for the three (3) of us, for the vitamins and medicines. And also I am having a special therapy to straighten my
back because I am scoliotic. I am advised by the Doctor to hire a driver, but I cannot still afford it now. Because my eyesight is not
reliable for driving. And I still need another househelp to accompany me whenever I go marketing because for my age, I cannot carry
anymore heavy loads.

xxxx

ATTY. FLORES:

xxxx

Q On the issue of the food for you and the two (2) children, you mentioned P40,000.00 to P50,000.00?

A Yes, for the food alone.

Q Okay, what other possible expenses that you would like to include in those two (2) items? You mentioned of a driver, am I correct?

A Yes, I might need two (2) drivers, Sir for me and my children.

Q Okay. How much would you like possibly to pay for those two (2) drivers?

A I think P10,000.00 a month for one (1) driver. So I need two (2) drivers. And I need another househelp.

Q You need another househelp. The househelp nowadays would charge you something between P3,000.00 to P4,000.00. Thats
quite

A Right now, my househelp is receiving P8,000.00. I need another which I will give a compensation of P5,000.00.

Q Other than that, do you still have other expenses?

A My clothing.

COURT:

How about the schooling for your children?

WITNESS:

A The schooling is shouldered by my husband, Your Honor.

COURT:

Everything?
A Yes, Your Honor.

xxxx

ATTY. FLORES:

Q Madam witness, let us talk of the present needs. x x x. What else, what specific need that you would like to add so I can tell my
client, the defendant.

WITNESS:

A I need to have an operation both of my eyes. I also need a special therapy for my back because I am scoliotic, three (3) times a
week.

Q That is very reasonable. [W]ould you care to please repeat that?

A Therapy for my scoliotic back and then also for the operation both of my eyes. And I am also taking some vitamins from excel that
will cost P20,000.00 a month.

Q Okay. Lets have piece by piece. Have you asked the Doctor how much would it cost you for the operation of that scoliotic?

A Yes before because I was already due last year. Before, this eye will cost P60,000.00 and the other eyes P75,000.00.

Q So for both eyes, you are talking of P60,000.00 plus P75,000.00 is P135,000.00?

A Yes.

xxxx

Q You talk of therapy?

A Yes.

Q So how much is that?

A Around P5,000.00 a week.21

As to the financial capacity of the respondent, it is beyond doubt that he can solely provide for the subsistence, education,
transportation, health/medical needs and recreational activities of his children, as well as those of petitioner who was then
unemployed and a full-time housewife. Despite this, respondents counsel manifested during the same hearing that respondent was
willing to grant the amount of only P75,000.00 as monthly support pendente lite both for the children and petitioner as spousal
support. Though the receipts of expenses submitted in court unmistakably show how much respondent lavished on his children, it
appears that the matter of spousal support was a different matter altogether. Rejecting petitioners prayer for P500,000.00 monthly
support and finding the P75,000.00 monthly support offered by respondent as insufficient, the trial court fixed the monthly support
pendente lite at P250,000.00. However, since the supposed income in millions of respondent was based merely on the allegations of
petitioner in her complaint and registration documents of various corporations which respondent insisted are owned not by him but
his parents and siblings, the CA reduced the amount of support pendente lite to P115,000.00, which ruling was no longer questioned
by both parties.

Controversy between the parties resurfaced when respondents compliance with the final CA decision indicated that he deducted
from the total amount in arrears (P2,645,000.00) the sum of P2,482,348.16, representing the value of the two cars for the children,
their cost of maintenance and advances given to petitioner and his children. Respondent explained that the deductions were made
consistent with the fallo of the CA Decision in CA-G.R. SP No. 84740 ordering him to pay support pendente lite in arrears less the
amount supposedly given by him to petitioner as her and their two childrens monthly support.

The following is a summary of the subject deductions under Compliance dated June 28, 2005, duly supported by receipts 22:

Car purchases for Angelli Suzanne - Php1,350,000.00

and Daniel Ryan - 613,472.86

Car Maintenance fees of Angelli - 51,232.50

Suzanne

Credit card statements of Daniel Ryan - 348,682.28

Car Maintenance fees of Daniel Ryan - 118,960.52

 Php2,482,348.16

After the trial court disallowed the foregoing deductions, respondent filed a motion for reconsideration further asserting that the
following amounts, likewise with supporting receipts, be considered as additional advances given to petitioner and the children23:

Medical expenses of Susan Lim-Lua Php 42,450.71

Dental Expenses of Daniel Ryan 11,500.00

Travel expenses of Susan Lim-Lua 14,611.15

Credit card purchases of Angelli 408,891.08

Suzanne

Salon and travel expenses of Angelli 87,112.70

Suzanne

School expenses of Daniel Ryan Lua 260,900.00

Cash given to Daniel and Angelli 121,000.00

TOTAL - Php 946,465.64

GRAND TOTAL - Php 3,428,813.80

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

We reverse in part the decision of the CA.

Judicial determination of support pendente lite in cases of legal separation and petitions for declaration of nullity or annulment of
marriage are guided by the following provisions of the Rule on Provisional Orders24

Sec. 2. Spousal Support.In determining support for the spouses, the court may be guided by the following rules:

(a) In the absence of adequate provisions in a written agreement between the spouses, the spouses may be supported from
the properties of the absolute community or the conjugal partnership.

(b) The court may award support to either spouse in such amount and for such period of time as the court may deem just
and reasonable based on their standard of living during the marriage.

(c) The court may likewise consider the following factors: (1) whether the spouse seeking support is the custodian of a child
whose circumstances make it appropriate for that spouse not to seek outside employment; (2) the time necessary to
acquire sufficient education and training to enable the spouse seeking support to find appropriate employment, and that
spouses future earning capacity; (3) the duration of the marriage; (4) the comparative financial resources of the spouses,
including their comparative earning abilities in the labor market; (5) the needs and obligations of each spouse; (6) the
contribution of each spouse to the marriage, including services rendered in home-making, child care, education, and career
building of the other spouse; (7) the age and health of the spouses; (8) the physical and emotional conditions of the
spouses; (9) the ability of the supporting spouse to give support, taking into account that spouses earning capacity, earned
and unearned income, assets, and standard of living; and (10) any other factor the court may deem just and equitable.

(d) The Family Court may direct the deduction of the provisional support from the salary of the spouse.

Sec. 3. Child Support.The common children of the spouses shall be supported from the properties of the absolute community or
the conjugal partnership.

Subject to the sound discretion of the court, either parent or both may be ordered to give an amount necessary for the support,
maintenance, and education of the child. It shall be in proportion to the resources or means of the giver and to the necessities of the
recipient.

In determining the amount of provisional support, the court may likewise consider the following factors: (1) the financial resources
of the custodial and non-custodial parent and those of the child; (2) the physical and emotional health of the child and his or her
special needs and aptitudes; (3) the standard of living the child has been accustomed to; (4) the non-monetary contributions that
the parents will make toward the care and well-being of the child.

The Family Court may direct the deduction of the provisional support from the salary of the parent.
Since the amount of monthly support pendente lite as fixed by the CA was not appealed by either party, there is no controversy as
to its sufficiency and reasonableness. The dispute concerns the deductions made by respondent in settling the support in arrears.

On the issue of crediting of money payments or expenses against accrued support, we find as relevant the following rulings by US
courts.

In Bradford v. Futrell,25 appellant sought review of the decision of the Circuit Court which found him in arrears with his child support
payments and entered a decree in favor of appellee wife. He complained that in determining the arrearage figure, he should have
been allowed full credit for all money and items of personal property given by him to the children themselves, even though he
referred to them as gifts. The Court of Appeals of Maryland ruled that in the suit to determine amount of arrears due the divorced
wife under decree for support of minor children, the husband (appellant) was not entitled to credit for checks which he had clearly
designated as gifts, nor was he entitled to credit for an automobile given to the oldest son or a television set given to the children.
Thus, if the children remain in the custody of the mother, the father is not entitled to credit for money paid directly to the children if
such was paid without any relation to the decree.

In the absence of some finding of consent by the mother, most courts refuse to allow a husband to dictate how he will meet the
requirements for support payments when the mode of payment is fixed by a decree of court. Thus he will not be credited for
payments made when he unnecessarily interposed himself as a volunteer and made payments direct to the children of his own
accord. Wills v. Baker, 214 S. W. 2d 748 (Mo. 1948); Openshaw v. Openshaw, 42 P. 2d 191 (Utah 1935). In the latter case the court
said in part: "The payments to the children themselves do not appear to have been made as payments upon alimony, but were
rather the result of his fatherly interest in the welfare of those children. We do not believe he should be permitted to charge them
to plaintiff. By so doing he would be determining for Mrs. Openshaw the manner in which she should expend her allowances. It is a
very easy thing for children to say their mother will not give them money, especially as they may realize that such a plea is effective
in attaining their ends. If she is not treating them right the courts are open to the father for redress." 26

In Martin, Jr. v. Martin,27 the Supreme Court of Washington held that a father, who is required by a divorce decree to make child
support payments directly to the mother, cannot claim credit for payments voluntarily made directly to the children. However,
special considerations of an equitable nature may justify a court in crediting such payments on his indebtedness to the mother,
when such can be done without injustice to her.

The general rule is to the effect that when a father is required by a divorce decree to pay to the mother money for the support of
their dependent children and the unpaid and accrued installments become judgments in her favor, he cannot, as a matter of law,
claim credit on account of payments voluntarily made directly to the children. Koon v. Koon, supra; Briggs v. Briggs, supra. However,
special considerations of an equitable nature may justify a court in crediting such payments on his indebtedness to the mother,
when that can be done without injustice to her. Briggs v. Briggs, supra. The courts are justifiably reluctant to lay down any general
rules as to when such credits may be allowed. 28 (Emphasis supplied.)

Here, the CA should not have allowed all the expenses incurred by respondent to be credited against the accrued support pendente
lite. As earlier mentioned, the monthly support pendente lite granted by the trial court was intended primarily for food, household
expenses such as salaries of drivers and house helpers, and also petitioners scoliosis therapy sessions. Hence, the value of two
expensive cars bought by respondent for his children plus their maintenance cost, travel expenses of petitioner and Angelli,
purchases through credit card of items other than groceries and dry goods (clothing) should have been disallowed, as these bear no
relation to the judgment awarding support pendente lite. While it is true that the dispositive portion of the executory decision in CA-
G.R. SP No. 84740 ordered herein respondent to pay the support in arrears "less than the amount supposedly given by petitioner to
the private respondent as her and their two (2) children monthly support," the deductions should be limited to those basic needs
and expenses considered by the trial and appellate courts. The assailed ruling of the CA allowing huge deductions from the accrued
monthly support of petitioner and her children, while correct insofar as it commends the generosity of the respondent to his
children, is clearly inconsistent with the executory decision in CA-G.R. SP No. 84740. More important, it completely ignores the
unfair consequences to petitioner whose sustenance and well-being, was given due regard by the trial and appellate courts. This is
evident from the March 31, 2004 Order granting support pendente lite to petitioner and her children, when the trial court observed:

While there is evidence to the effect that defendant is giving some forms of financial assistance to his two (2) children via their credit
cards and paying for their school expenses, the same is, however, devoid of any form of spousal support to the plaintiff, for, at this
point in time, while the action for nullity of marriage is still to be heard, it is incumbent upon the defendant, considering the physical
and financial condition of the plaintiff and the overwhelming capacity of defendant, to extend support unto the latter. x x x 29

On appeal, while the Decision in CA-G.R. SP No. 84740 reduced the amount of monthly support fixed by the trial court, it
nevertheless held that considering respondents financial resources, it is but fair and just that he give a monthly support for the
sustenance and basic necessities of petitioner and his children. This would imply that any amount respondent seeks to be credited as
monthly support should only cover those incurred for sustenance and household expenses.1avvphi1

In the case at bar, records clearly show and in fact has been admitted by petitioner that aside from paying the expenses of their two
(2) childrens schooling, he gave his two (2) children two (2) cars and credit cards of which the expenses for various items namely:
clothes, grocery items and repairs of their cars were chargeable to him which totaled an amount of more than One Hundred
Thousand (P100,000.00) for each of them and considering that as testified by the private respondent that she needs the total
amount of P113,000.00 for the maintenance of the household and other miscellaneous expenses and considering further that
petitioner can afford to buy cars for his two (2) children, and to pay the expenses incurred by them which are chargeable to him
through the credit cards he provided them in the amount of P100,000.00 each, it is but fair and just that the monthly support
pendente lite for his wife, herein private respondent, be fixed as of the present in the amount of P115,000.00 which would be
sufficient enough to take care of the household and other needs. This monthly support pendente lite to private respondent in the
amount of P115,000.00 excludes the amount of One Hundred ThirtyFive (P135,000.00) Thousand Pesos for medical attendance
expenses needed by private respondent for the operation of both her eyes which is demandable upon the conduct of such
operation. Likewise, this monthly support of P115,000.00 is without prejudice to any increase or decrease thereof that the trial court
may grant private respondent as the circumstances may warrant i.e. depending on the proof submitted by the parties during the
proceedings for the main action for support.

The amounts already extended to the two (2) children, being a commendable act of petitioner, should be continued by him
considering the vast financial resources at his disposal.30 (Emphasis supplied.)

Accordingly, only the following expenses of respondent may be allowed as deductions from the accrued support pendente lite for
petitioner and her children:

1wphi1
Medical expenses of Susan Lim-Lua Php 42,450.71

Dental Expenses of Daniel Ryan 11,500.00

Credit card purchases of Angelli 365,282.20

(Groceries and Dry Goods) 228,869.38

Credit Card purchases of Daniel Ryan

TOTAL Php 648,102.29

As to the contempt charge, we sustain the CA in holding that respondent is not guilty of indirect contempt.

Contempt of court is defined as a disobedience to the court by acting in opposition to its authority, justice, and dignity. It signifies
not only a willful disregard or disobedience of the courts order, but such conduct which tends to bring the authority of the court
and the administration of law into disrepute or, in some manner, to impede the due administration of justice.31 To constitute
contempt, the act must be done willfully and for an illegitimate or improper purpose. 32 The good faith, or lack of it, of the alleged
contemnor should be considered.33

Respondent admittedly ceased or suspended the giving of monthly support pendente lite granted by the trial court, which is
immediately executory. However, we agree with the CA that respondents act was not contumacious considering that he had not
been remiss in actually providing for the needs of his children. It is a matter of record that respondent continued shouldering the full
cost of their education and even beyond their basic necessities in keeping with the familys social status. Moreover, respondent
believed in good faith that the trial and appellate courts, upon equitable grounds, would allow him to offset the substantial amounts
he had spent or paid directly to his children.

Respondent complains that petitioner is very much capacitated to generate income on her own because she presently maintains a
boutique at the Ayala Center Mall in Cebu City and at the same time engages in the business of lending money. He also claims that
the two children have finished their education and are now employed in the family business earning their own salaries.

Suffice it to state that the matter of increase or reduction of support should be submitted to the trial court in which the action for
declaration for nullity of marriage was filed, as this Court is not a trier of facts. The amount of support may be reduced or increased
proportionately according to the reduction or increase of the necessities of the recipient and the resources or means of the person
obliged to support.34 As we held in Advincula v. Advincula35

Judgment for support does not become final. The right to support is of such nature that its allowance is essentially provisional; for
during the entire period that a needy party is entitled to support, his or her alimony may be modified or altered, in accordance with
his increased or decreased needs, and with the means of the giver. It cannot be regarded as subject to final determination. 36

WHEREFORE, the petition is PARTLY GRANTED. The Decision dated April 20, 2006 of the Court of Appeals in CA-G.R. SP Nos. 01154
and 01315 is hereby MODIFIED to read as follows:

"WHEREFORE, judgment is hereby rendered:

a) DISMISSING, for lack of merit, the case of Petition for Contempt of Court with Damages filed by Susan Lim Lua against
Danilo Y. Lua with docket no. SP. CA-G.R. No. 01154;

b) GRANTING IN PART Danilo Y. Lua's Petition for Certiorari docketed as SP. CA-G.R. No. 01315. Consequently, the assailed
Orders dated 27 September 2005 and 25 November 2005 of the Regional Trial Court, Branch 14, Cebu City issued in Civil
Case No. CEB-29346 entitled "Susan Lim Lua versus Danilo Y. Lua, are hereby NULLIFIED and SET ASIDE, and instead a new
one is entered:

i. ORDERING the deduction of the amount of Php 648,102.29 from the support pendente lite in arrears of Danilo Y.
Lua to his wife, Susan Lim Lua and their two (2) children;
 ii. ORDERING Danilo Y. Lua to resume payment of his monthly support of PhP115,000.00 pesos starting from the
time payment of this amount was deferred by him subject to the deduction aforementioned.

iii. DIRECTING the immediate execution of this judgment.

SO ORDERED."

G.R. No. 165166 August 15, 2012

CHARLES GOTARDO, Petitioner,

vs.
DIVINA BULING, Respondent.

VILLARAMA, JR.,*

DECISION

BRION, J.:

We resolve the petition for review on certiorari, 1 filed by petitioner Charles Gotardo, to challenge the March 5, 2004 decision2 and
the July 27, 2004 resolution 3 of the Court of Appeals (CA) in CA GR CV No. 76326. The CA decision ordered the petitioner to
recognize and provide legal support to his minor son, Gliffze 0. Buling. The CA resolution denied the petitioner's subsequent motion
for reconsideration.

FACTUAL BACKGROUND

On September 6, 1995, respondent Divina Buling filed a complaint with the Regional Trial Court (RTC) of Maasin, Southern Leyte,
Branch 25, for compulsory recognition and support pendente lite, claiming that the petitioner is the father of her child Gliffze.4

In his answer, the petitioner denied the imputed paternity of Gliffze. 5 For the parties failure to amicably settle the dispute, the RTC
terminated the pre-trial proceedings.6 Trial on the merits ensued.

The respondent testified for herself and presented Rodulfo Lopez as witness. Evidence for the respondent showed that she met the
petitioner on December 1, 1992 at the Philippine Commercial and Industrial Bank, Maasin, Southern Leyte branch where she had
been hired as a casual employee, while the petitioner worked as accounting supervisor. 7 The petitioner started courting the
respondent in the third week of December 1992 and they became sweethearts in the last week of January 1993. 8 The petitioner
gave the respondent greeting cards on special occasions, such as on Valentines Day and her birthday; she reciprocated his love and
took care of him when he was ill.9

Sometime in September 1993, the petitioner started intimate sexual relations with the respondent in the formers rented room in
the boarding house managed by Rodulfo, the respondents uncle, on Tomas Oppus St., Agbao, Maasin, Southern Leyte. 10 The
petitioner rented the room from March 1, 1993 to August 30, 1994. 11 The sexual encounters occurred twice a month and became
more frequent in June 1994; eventually, on August 8, 1994, the respondent found out that she was pregnant. 12 When told of the
pregnancy, the petitioner was happy and made plans to marry the respondent.13 They in fact applied for a marriage license.14 The
petitioner even inquired about the costs of a wedding reception and the bridal gown. 15 Subsequently, however, the petitioner
backed out of the wedding plans.16

The respondent responded by filing a complaint with the Municipal Trial Court of Maasin, Southern Leyte for damages against the
petitioner for breach of promise to marry.17 Later, however, the petitioner and the respondent amicably settled the case. 18

The respondent gave birth to their son Gliffze on March 9, 1995. 19 When the petitioner did not show up and failed to provide
support to Gliffze, the respondent sent him a letter on July 24, 1995 demanding recognition of and support for their child. 20 When
the petitioner did not answer the demand, the respondent filed her complaint for compulsory recognition and support pendente
lite.21

The petitioner took the witness stand and testified for himself. He denied the imputed paternity,22 claiming that he first had sexual
contact with the respondent in the first week of August 1994 and she could not have been pregnant for twelve (12) weeks (or three
(3) months) when he was informed of the pregnancy on September 15, 1994. 23

During the pendency of the case, the RTC, on the respondents motion,24 granted a P2,000.00 monthly child support, retroactive
from March 1995.25

THE RTC RULING

In its June 25, 2002 decision, the RTC dismissed the complaint for insufficiency of evidence proving Gliffzes filiation. It found the
respondents testimony inconsistent on the question of when she had her first sexual contact with the petitioner, i.e., "September
1993" in her direct testimony while "last week of January 1993" during her cross-testimony, and her reason for engaging in sexual
contact even after she had refused the petitioners initial marriage proposal. It ordered the respondent to return the amount of
support pendente lite erroneously awarded, and to pay P10,000.00 as attorneys fees.26

The respondent appealed the RTC ruling to the CA.27

THE CA RULING

In its March 5, 2004 decision, the CA departed from the RTC's appreciation of the respondents testimony, concluding that the latter
merely made an honest mistake in her understanding of the questions of the petitioners counsel. It noted that the petitioner and
the respondent had sexual relationship even before August 1994; that the respondent had only one boyfriend, the petitioner, from
January 1993 to August 1994; and that the petitioners allegation that the respondent had previous relationships with other men
remained unsubstantiated. The CA consequently set aside the RTC decision and ordered the petitioner to recognize his minor son
Gliffze. It also reinstated the RTC order granting a P 2,000.00 monthly child support.28

When the CA denied29 the petitioners motion for reconsideration,30 the petitioner filed the present petition for review on certiorari.

THE PETITION

The petitioner argues that the CA committed a reversible error in rejecting the RTCs appreciation of the respondents testimony,
and that the evidence on record is insufficient to prove paternity.

THE CASE FOR THE RESPONDENT

The respondent submits that the CA correctly explained that the inconsistency in the respondents testimony was due to an
incorrect appreciation of the questions asked, and that the record is replete with evidence proving that the petitioner was her lover
and that they had several intimate sexual encounters during their relationship, resulting in her pregnancy and Gliffzes birth on
March 9, 1995.

THE ISSUE

The sole issue before us is whether the CA committed a reversible error when it set aside the RTCs findings and ordered the
petitioner to recognize and provide legal support to his minor son Gliffze.

OUR RULING

We do not find any reversible error in the CAs ruling.

We have recognized that "[f]iliation proceedings are usually filed not just to adjudicate paternity but also to secure a legal right
associated with paternity, such as citizenship, support (as in this case) or inheritance. [In paternity cases, the burden of proof] is on
the person who alleges that the putative father is the biological father of the child."31

One can prove filiation, either legitimate or illegitimate, through the record of birth appearing in the civil register or a final
judgment, an admission of filiation in a public document or a private handwritten instrument and signed by the parent concerned, or
the open and continuous possession of the status of a legitimate or illegitimate child, or any other means allowed by the Rules of
Court and special laws.32 We have held that such other proof of one's filiation may be a "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." 33

In Herrera v. Alba,34 we stressed that there are four significant procedural aspects of a traditional paternity action that parties have
to face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance between the putative father
and the child.35 We explained that a prima facie case exists if a woman declares supported by corroborative proof that she had
sexual relations with the putative father; at this point, the burden of evidence shifts to the putative father. 36 We explained further
that the two affirmative defenses available to the putative father are: (1) incapability of sexual relations with the mother due to
either physical absence or impotency, or (2) that the mother had sexual relations with other men at the time of conception. 37

In this case, the respondent established a prima facie case that the petitioner is the putative father of Gliffze through testimony that
she had been sexually involved only with one man, the petitioner, at the time of her conception.38Rodulfo corroborated her
testimony that the petitioner and the respondent had intimate relationship. 39

On the other hand, the petitioner did not deny that he had sexual encounters with the respondent, only that it occurred on a much
later date than the respondent asserted, such that it was physically impossible for the respondent to have been three (3) months
pregnant already in September 1994 when he was informed of the pregnancy. 40 However, the petitioner failed to substantiate his
allegations of infidelity and insinuations of promiscuity. His allegations, therefore, cannot be given credence for lack of evidentiary
support. The petitioners denial cannot overcome the respondents clear and categorical assertions.
The petitioner, as the RTC did, made much of the variance between the respondents direct testimony regarding their first sexual
contact as "sometime in September 1993" and her cross-testimony when she stated that their first sexual contact was "last week of
January 1993," as follows:

ATTY. GO CINCO:

When did the defendant, according to you, start courting you?

A Third week of December 1992.

Q And you accepted him?

A Last week of January 1993.

Q And by October you already had your sexual intercourse?

A Last week of January 1993.

COURT: What do you mean by accepting?

A I accepted his offer of love.41

We find that the contradictions are for the most part more apparent than real, having resulted from the failure of the respondent to
comprehend the question posed, but this misunderstanding was later corrected and satisfactorily explained. Indeed, when
confronted for her contradictory statements, the respondent explained that that portion of the transcript of stenographic notes was
incorrect and she had brought it to the attention of Atty. Josefino Go Cinco (her former counsel) but the latter took no action on the
matter.42

Jurisprudence teaches that in assessing the credibility of a witness, his testimony must be considered in its entirety instead of in
truncated parts. The technique in deciphering a testimony is not to consider only its isolated parts and to anchor a conclusion based
on these parts. "In ascertaining the facts established by a witness, everything stated by him on direct, cross and redirect
examinations must be calibrated and considered."43 Evidently, the totality of the respondent's testimony positively and convincingly
shows that no real inconsistency exists. The respondent has consistently asserted that she started intimate sexual relations with the
petitioner sometime in September 1993.44

Since filiation is beyond question, support follows as a matter of obligation; a parent is obliged to support his child, whether
legitimate or illegitimate.45 Support consists of everything indispensable for sustenance, dwelling, clothing, medical attendance,
education and transportation, in keeping with the financial capacity of the family. 46 Thus, the amount of support is variable and, for
this reason, no final judgment on the amount of support is made as the amount shall be in proportion to the resources or means of
the giver and the necessities of the recipient.47 It may be reduced or increased proportionately according to the reduction or
increase of the necessities of the recipient and the resources or means of the person obliged to support. 48

In this case, we sustain the award of P 2,000.00 monthly child support, without prejudice to the filing of the proper motion in the
RTC for the determination of any support in arrears, considering the needs of the child, Gliffze, during the pendency of this case.

WHEREFORE, we hereby DENY the petition for lack of merit. The March 5, 2004 decision and the July 27, 2004 resolution of the
Court of Appeals in CA GR CV No. 76326 are hereby AFFIRMED. Costs against the petitioner.

SO ORDERED.

A.M. No. RTJ-12-2326 January 30, 2013

(Formerly A.M. OCA I.P.I. No. 11-3692-RTJ)

GEOFFREY BECKETT, Complainant,

vs.
JUDGE OLEGARIO R. SARMIENTO, JR., Regional Trial Court, Branch 24, Cebu City, Respondent.

DECISION

VELASCO, JR., J.:

In all questions relating to the care, custody, education and property of the children, the latter's welfare is paramount. This means
that the best interest of the minor can override procedural rules and even the rights of parents to the custody of their children.
Since, in this case, the very life and existence of the minor is at stake and the child is in an age when she can exercise an intelligent
choice, the courts can do no less than respect, enforce and give meaning and substance to that choice and uphold her right to live in
an atmosphere conducive to her physical, moral and intellectual development. 1 x x x

The Case

This case arose from a complaint filed by Geoffrey Beckett charging Judge Olegario R. Sarmiento, Jr. of the Regional Trial Court (RTC)
of Cebu City, Branch 24, with gross ignorance of the law, manifest partiality and dereliction and neglect of duty allegedly committed
in relation to Sp. Proc. No. 18182-CEB, entitled Geoffrey Beckett v. Eltesa Densing Beckett, while pending before that court.

The Antecedent Facts

Geoffrey Beckett (Beckett or Complainant), an Australian national, was previously married to Eltesa Densing Beckett (Eltesa), a
Filipina. Out of the marriage was born on June 29, 2001, Geoffrey Beckett, Jr. (Geoffrey, Jr.).

In his Complaint-Affidavit,2 Beckett alleged that their union was, from the start, far from ideal. In fact, according to him, they
eventually separated and, worse still, they sued each other.

In 2006, Eltesa filed a case against Beckett for violation of Republic Act No. (RA) 7610, otherwise known as the Violence against
Women and Children Act, followed by a suit for the declaration of nullity of their marriage, docketed as Civil Case No. CEB -32254.
Both cases ended in the sala of Judge Olegario Sarmiento, Jr. (respondent or Judge Sarmiento). For his part, Beckett commenced
criminal charges against Eltesa, one of which was for adultery.

The couples initial legal battle ended when Judge Sarmiento, on September 25, 2006 in Civil Case No. CEB-32254, rendered
judgment3 based on a compromise agreement in which Eltesa and Beckett agreed and undertook, among others, to cause the
dismissal of all pending civil and criminal cases each may have filed against the other. They categorically agreed too that Beckett
shall have full and permanent custody over Geoffrey, Jr., then five (5) years old, subject to the visitorial rights of Eltesa.

Thereafter, Beckett left for Australia, taking Geoffrey, Jr. with him. As with his three other children from previous relationships, so
Beckett alleged, he cared and provided well for Geoffrey, Jr. Moreover, as agreed upon, they would come and see Eltesa in Cebu
every Christmas.

In 2007, Beckett obtained a divorce from Eltesa in Australia. This notwithstanding, the yearly Christmas visits continued. In the 2010
visit, Beckett consented to have Geoffrey, Jr. stay with Eltesa even after the holidays, provided she return the child on January 9,
2011. January 9 came and went but Geoffrey, Jr. remained with Eltesa, prompting Beckett to file a petition against Eltesa for
violation of RA 7610. Docketed as Sp. Proc. No. 18182-CEB,4this petition was again raffled to the sala of Judge Sarmiento. And
because Geoffrey remained in the meantime in the custody of Eltesa, Beckett later applied in Sp. Proc. No. 18182-CEB for the
issuance of a writ of habeas corpus.

Beckett further relates that, during the March 1, 2011 conference on the application for habeas corpus, Geoffrey, Jr., then nine (9)
years old, displayed inside the courtroom hysterical conduct, shouting and crying, not wanting to let go of Eltesa and acting as
though, he, the father, was a total stranger. Despite Geoffrey Jr.s outburst, Judge Sarmiento issued an Order 5, dated March 1, 2011,
directing inter alia the following: (1) Eltesa to return Geoffrey, Jr. to Beckett; and (2) Beckett to bring the child in the pre-trial
conference set for March 15, 2001.

For some reason, the turnover of Geoffrey, Jr. to Beckett did not materialize.

Beckett also alleged that while waiting for the March 15, 2011 pre-trial conference to start, he saw one Helen Sy, purportedly a close
friend of Eltesa, enter Judge Sarmientos chambers. Then, during the conference itself, Eltesa moved for reconsideration of the
courts March 1, 2011 Order, praying that it be set aside insofar as it directed her to return the custody of Geoffrey, Jr. to Beckett. To
this partial motion, Beckett requested, and was granted, a period of five (5) days to file his comment/opposition. Additionally,
Beckett sought the immediate implementation of the said March 1, 2011 Order. But instead of enforcing said order and/or waiting
for Becketts comment, Judge Sarmiento, in open court, issued another order giving Eltesa provisional custody over Geoffrey, Jr. and
at the same time directing the Department of Social Welfare and Development (DSWD) to conduct a social case study on the child.

Weeks later, or in the March 30, 2011 setting, Beckett moved for the reconsideration of the judges March 15, 2011 Order, on the
main contention that Judge Sarmiento can no longer grant provisional custody to Eltesa in light of the adverted judgment on
compromise agreement. Also, according to him, during this March 30 proceeding, respondent judge conversed with Eltesa in
Cebuano, a dialect which neither the former nor his counsel understood, and which they (respondent and Eltesa) persisted on using
despite requests that they communicate in English or Filipino. Becketts lawyer then asked that he be allowed to confer in private
with his client for a few minutes but when they returned to the courtroom, the proceedings had already been adjourned.

As his motion for reconsideration had remained unresolved as of June 13, 2011, Beckett filed on that day an urgent motion to
resolve. Several hearings on the case were postponed because of the belated submission by the DSWD of the case study report
requested by respondent judge.

It is upon the foregoing factual backdrop that Beckett has instituted the instant complaint, docketed as A.M. OCA IPI No. 11-3692-
RTJ, later redocketed as A.M. No. RTJ-12-2326. As argued, respondent is liable for (1) gross ignorance of the law for granting Eltesa
provisional custody over Geoffrey Jr.; and (2) partiality by committing acts of serious misconduct and irregularities in the
performance of official duties, such as but not limited to allowing one Helen Sy to enter his chambers before the March 15, 2011
hearing, his habit of conversing with Eltesa in the local dialect and for adjourning a hearing while he was conferring with his counsel
in private. Beckett predicates his charge of dereliction and neglect of duty on respondents alleged failure to resolve his motion for
reconsideration of the March 15, 2011 order giving provisional custody of his child to his mother.

In his answer in response to the 1st Indorsement dated July 14, 2011 of the Office of the Court of Administrator (OCA), respondent
judge denied complainants allegations of partiality and of being biased against the latter, particularly describing his order granting
Eltesa provisional custody as proper. In this regard, respondent judge averred that, per his Order of March 30, 2011, he deferred
action on Becketts motion for reconsideration of the courts March 15, 2011 Order pending submission of the Social Case Study
Report, while the June 21, 2011 Order denying Becketts said motion for reconsideration was based on that Social Case Study
Report6 of Social Welfare Officer Clavel Saycon, DWSD- Region VII, who recommended that Geoffrey, Jr. be in the care and custody
of the mother. As an added observation, respondent judge stated that Beckett did not cry "Bias" when he (respondent) approved
the compromise agreement in Civil Case CEB 32254 and when he later urged Beckett to commence habeas corpus proceedings.
Attached to the letter-answer are the case study reports submitted by the DSWD regional office, one of which was prepared by
psychologist Christine V. Duhaylungsod,7 who elicited from Geoffrey, Jr. the following information: that (1) complainant always
leaves him to the care of his older half-brother or his fathers girlfriends; (2) he was at one time sent out of the house by one of
complainants girlfriends and he had to stay in the garage alone; and (3) he never wanted to stay with complainant whom he feared
and who once locked him in his room without food. In their respective reports, Dr. Obra and Dr. Saycon, a psychiatrist, both strongly
recommended that custody over Geoffrey, Jr. be given to Eltesa.

Respondent judge also denied knowing one Helen Sy adverted to in the basic complaint and explained in some detail why he spoke
at one instance to Eltesa in Cebuano. He closed with a statement that he issued his assailed Orders in good faith and that he had, as
sought by complainant, inhibited himself from further hearing SP Proc. No. 18182-CEB.

In the Agenda Report dated March 8, 2012, the OCA regards the complaint meritorious insofar as the charges for gross ignorance of
the law is concerned given that respondent judge issued his March 15, 2011 Order granting provisional custody in favor of Eltesa
despite the existence of the judicial compromise. The OCA, thus, recommended that respondent judge be adjudged liable for gross
ignorance of the law and fined with stern warning. The inculpatory portions of the OCAs evaluation report pertinently read:

x x x A compromise agreement that is intended to resolve a matter already under litigation is normally called a judicial compromise.
Once it is stamped with judicial imprimatur, it becomes more than a mere contract binding upon the parties. x x x It has the force of
and effect of any other judgment. x x x Thus, a compromise agreement that has been made and duly approved by the court attains
the effect and authority of res judicata x x x.

xxxx

The pertinent portion of the judgment on Compromise Agreement x x x, which granted and transferred permanent custody of
Geoffrey, Jr. to the herein complainant is unequivocal. Moreover, the same order even allowed complainant to bring with him
Geoffrey, Jr. to Australia. Thus, in granting Geoffrey, Jr.s custody to his mother in an Order issued on 15 March 2011 on a mere
Motion for Partial Reconsideration, respondent judge violated a basic and fundamental principle of res judicata. When the law is
elementary, not to be aware of it constitutes gross ignorance thereof. After all, judges are expected to have more than just a
modicum of acquaintance with the statutes and procedural rules. Hence, the respondent judge is guilty of gross ignorance of the
law.8

The OCA, however, effectively recommends the dismissal of the charge of manifest partiality and other offenses for want of
sufficient substantiation, noting that the complainant has failed to adduce substantial evidence to overcome the presumption of
regularity in the performance of judicial duties.

Anent the charge of Manifest Partiality, this Office finds the same not supported by substantial evidence. In administrative
proceedings, the complainant bears the onus of establishing, by substantial evidence, the averments in his complaint. Complainant
failed to present substantial evidence to show the alleged partiality and ignorance of respondent judge, Mere suspicion that a judge
is biased is not enough. Bare allegations of partiality will not suffice in the absence of clear showing that will overcome the
presumption that the judge dispensed justice without fear or favor. 9

The Court also notes that, contrary to complainants pretense, respondent judge had acted on his motion for reconsideration of the
contentious March 15, 2011 Order.

The OCAs recommendation for the dismissal of the complaint insofar as it charges respondent judge with manifest partiality and
dereliction and neglect of duties is well-taken. The Court cannot presume partiality and serious misconduct and irregularities based
on circumstances alleged in the complaint. Moreover, for serious misconduct to obtain, the judicial act/s complained of should be
corrupt or inspired by an intention to violate the law or persistent disregard of well-known legal precepts.10 Nothing in the records
tends to suggest that respondent judge was actuated by malice or corrupt motives in issuing his disputed March 15, 2011 order
granting Eltesa custody of Geoffrey, Jr. despite the adverted compromise agreement.

The Issue

The remaining issue then boils down to whether or not respondent Judge Sarmiento is guilty of gross ignorance of the law.
The Courts Ruling

Gross ignorance of the law on the part of a judge presupposes an appalling lack of familiarity with simple rules of law or procedures
and well-established jurisprudence which tends to erode the public trust in the competence and fairness of the court which he
personifies. Not to know the law as basic, almost elementary, as the Rules of Court, or acting in disregard of established rule of law
as if he were not aware of the same constitutes gross ignorance whence no one is excused, especially an RTC judge. 11

Complainant has charged respondent judge with gross ignorance of the law. He states in this regard that respondent judge, in
arbitrary defiance of his own Decision of September 25, 2006 which constitutes res judicata or a bar to him to pass upon the issue of
Geoffrey, Jrs. custody, granted, via his March 15, 2011 Order, provisional custody over Geoffrey, Jr. to Eltesa. The Decision adverted
to refers to the judgment on compromise agreement.

The Court cannot go along with complainants above posture.

Respondent judge, in granting provisional custody over Geoffrey, Jr. in favor of his mother, Eltesa, did not disregard the res judicata
rule. The more appropriate description of the legal situation engendered by the March 15, 2011 Order issued amidst the persistent
plea of the child not to be returned to his father, is that respondent judge exhibited fidelity to jurisprudential command to accord
primacy to the welfare and interest of a minor child. As it were, the matter of custody, to borrow from Espiritu v. Court of
Appeals,12 "is not permanent and unalterable and can always be re-examined and adjusted." And as aptly observed in a separate
opinion in Dacasin v. Dacasin,13 a custody agreement can never be regarded as "permanent and unbending," the simple reason being
that the situation of the parents and even of the child can change, such that sticking to the agreed arrangement would no longer be
to the latters best interest. In a very real sense, then, a judgment involving the custody of a minor child cannot be accorded the
force and effect of res judicata.

Now to another point. In disputes concerning post-separation custody over a minor, the well-settled rule is that no child under seven
(7) years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. 14 And if already
over 7 years of age, the childs choice as to which of his parents he prefers to be under custody shall be respected, unless the parent
chosen proves to be unfit.15 Finally, in Perez v. Court of Appeals,16 We held that in custody cases, the foremost consideration is
always the welfare and best interest of the child, as reflected in no less than the U.N. Convention on the Rights of the Child which
provides that "in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." 17

In the light of the foregoing, respondent judge cannot be held guilty of the charges hurled by the complainant against him for the
reason that absent a finding of strong reasons to rule otherwise, the preference of a child over 7 years of age as to whom he desired
to live with shall be respected. Moreover, custody, even if previously granted by a competent court in favor of a parent, is not, to
reiterate, permanent. In Espiritu,18 We ruled that:

x x x The matter of custody is not permanent and unalterable.1wphi1 If the parent who was given custody suffers a future
character change and becomes unfit, the matter of custody can always be re-examined and adjusted x x x. To be sure, the welfare,
the best interests, the benefit, and the good of the child must be determined as of the time that either parent is chosen to be the
custodian. x x x

As Rosalind and Reginald Espiritu in Espiritu,19 Geoffrey, Jr., at the time when he persistently refused to be turned over to his father,
was already over 7 years of age. As such, he was very much capable of deciding, based on his past experiences, with whom he
wanted to stay. Noteworthy too are the results of the interviews which were reflected in the three reports previously mentioned,
excerpts from which are hereunder quoted, to wit:

x x x In so far as Geoffrey, Jr.s account of experience, being with his fathers custody is something that he is afraid of and something
he does not want to happen again. However, being with his mother is the one (sic) he is looking to (sic) and aspires. 20

xxxx

x x x Being in the custody of his mother is something (sic) he feel (sic) secure and protected and this is manifested in the childs
craving for his mothers presence all the time and the desire to be always with her that even (sic) he sleeps he wants his mother to
embrace and hug him and cries when he wakes up and he cannot see his mother. 21

xxxx

x x x He locked me in the room. He always leave (sic) me. x x x they keep fighting, Daddy and his girlfriend ... they'll get angry with
(sic) me ... I'm scared with (sic) Daddy.22

xxxx

Meanwhile, Ms. Barbo (the caregiver or yaya of Geoffrey, Jr.), expressed peculiarities, "Sa Daddy niya, he dd (sic) not fear his mom.
Sa mommy niya, he fear (sic) his dad."23

With these, We see no reason to sustain the charge against respondent judge for gross ignorance of the law. For clearly, absent any
evidence to the contrary, Geoffrey, Jr. chose to live with his mother for a reason, which respondent judge, consistent with the
promotion of the best interest of the child, provisionally granted through the issuance of the disputed March 15, 2011 Order. In fact,
in issuing the disputed Order, respondent judge rectified an error previously made when he handed out the Judgment on
Compromise Agreement in 2006.

WHEREFORE, premises considered, the complaint is hereby DISMISSED.

SO ORDERED.

G.R. No. 191993 December 5, 2012

EDUARDO T. ABAD, Petitioner,

vs.
LEONARDO BIASON and GABRIEL A. MAGNO, Respondents.

RESOLUTION

REYES, J.:

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking to annul and set aside the
Decision 1 dated August 28, 2009 and Resolution2 dated April 19, 2010 of the Court of Appeals (CA) in CA-G.R. CV No; 90145.

The facts show that on March 19, 2007, petitioner Eduardo Abad (Abad) filed a petition for guardianship over the person and
properties of Maura B. Abad (Maura) with the Regional Trial Court (RTC), Dagupan City, Branch 42, which was docketed as Sp. Proc.
No. 2007-0050-D. In support thereof, Abad alleged that he maintains residence at No. 14 B St. Paul Street, Horseshoe Village,
Quezon City and that he is Mauras nephew. He averred that Maura, who is single, more than ninety (90) years old and a resident of
Rizal Street, Poblacion, Mangaldan, Pangasinan, is in dire need of a guardian who will look after her and her business affairs. Due to
her advanced age, Maura is already sickly and can no longer manage to take care of herself and her properties unassisted thus
becoming an easy prey of deceit and exploitation.3

Finding the petition sufficient in form and substance, the RTC gave due course to the same and scheduled it for hearing. When the
petition was called for hearing on April 27, 2007, nobody entered an opposition and Abad was allowed to present evidence ex parte.
After Abad formally offered his evidence and the case was submitted for decision, Atty. Gabriel Magno filed a Motion for Leave to
Intervene, together with an Oppositionin- Intervention. Subsequently, on June 14, 2007, Leonardo Biason (Biason) filed a Motion for
Leave to File Opposition to the Petition and attached therewith his Opposition to the Appointment of Eduardo Abad as Guardian of
the Person and Properties of Maura B. Abad. Specifically, Biason alleged that he is also a nephew of Maura and that he was not
notified of the pendency of the petition for the appointment of the latters guardian. He vehemently opposed the appointment of
Abad as Mauras guardian as he cannot possibly perform his duties as such since he resides in Quezon City while Maura maintains
her abode in Mangaldan, Pangasinan. Biason prayed that he be appointed as Mauras guardian since he was previously granted by
the latter with a power of attorney to manage her properties. 4

On September 26, 2007, the RTC rendered a Decision,5 denying Abads petition and appointing Biason as Mauras guardian. The RTC
disposed thus:

WHEREFORE, the petition is hereby denied. Petitioner Eduardo T. Abad is found to be disqualified to act as guardian of incompetent
Maura B. Abad. Oppositor Leonardo A. Biason is established by this Court to be in a better position to be the guardian of said
incompetent Maura B. Abad.

The Court hereby fixes the guardianship bond at [P]500,000.00 and the letters of guardianship shall be issued only upon the
submission of the bond, conditioned on the following provisions of the Rule 94[,] Section 1, of the 1997 Rules of Civil Procedure:

a. To make and return to the Court within three (3) months true and complete inventory of all the estate, real and personal,
of his ward which shall come to his possession or knowledge or to the possession or knowledge of any other person for
him;

b. To faithfully execute the duties of his trust, to manage and dispose of the estate according to these rules for the best
interests of the ward, and to provide for the proper care, custody x x x of the ward;

c. To render a true and just account of all the estate of the ward in his hands, and of all proceeds or interest derived
therefrom, and of the management and disposition of the same, at the time designated by these rules and such other times
as the court directs, and at the expiration of his trust to settle his accounts with the court and deliver and pay over all the
estate, effects, and moneys remaining in his hands, or due from him on such settlement, to the person lawfully entitled
thereto;

d. To perform all orders of the court by him to be performed.

SO ORDERED.6

Unyielding, Abad filed a motion for reconsideration of the foregoing decision but the RTC denied the same in an Order dated
December 11, 2007.

Abad filed an appeal to the CA. He argued that the RTC erred in disqualifying him from being appointed as Mauras guardian despite
the fact that he has all the qualifications stated under the Rules. That he was not a resident of Mangaldan, Pangasinan should not be
a ground for his disqualification as he had actively and efficiently managed the affairs and properties of his aunt even if he is residing
in Metro Manila. Moreover, he was expressly chosen by Maura to be her guardian. 7

Abad further averred that no hearing was conducted to determine the qualifications of Biason prior to his appointment as guardian.
He claimed that the RTC also overlooked Mauras express objection to Biasons appointment.8

On August 28, 2009, the CA issued a Decision,9 affirming the decision of the RTC, the pertinent portions of which read:

The petitioner-appellant may have been correct in arguing that there is no legal requirement that the guardian must be residing in
the same dwelling place or municipality as that of the ward or incompetent, and that the Vancil vs. Belmes case cited by the court a
quo which held that "courts should not appoint as guardians persons who are not within the jurisdiction of our courts" pertains to
persons who are not residents of the country.

However, we do not find that the court a quo, by deciding to appoint the oppositor-appellee as guardian, has fallen into grievous
error.

For one, the oppositor-appellee, like petitioner-appellant, is also a relative, a nephew of the incompetent. There are no vices of
character which have been established as to disqualify him from being appointed as a guardian.

xxxx

Anent the claim of the petitioner-appellant that he has been expressly chosen by her aunt to be her guardian as evidenced by her
testimony, although it could be given weight, the same could not be heavily relied upon, especially considering the alleged mental
state of the incompetent due to her advanced age.

xxxx

WHEREFORE, premises considered, the instant petition is DISMISSED for lack of merit. The assailed decision of the Regional Trial
Court of Dagupan City, Branch 42 is AFFIRMED IN TOTO.

SO ORDERED.[10

Dissatisfied, Abad filed a motion for reconsideration but the CA denied the same in a Resolution 11 dated April 19, 2010, the
dispositive portion of which reads:

WHEREFORE, premises considered, the Motion for Reconsideration is DENIED for lack of merit.

SO ORDERED.12

On June 7, 2010, Abad filed a Petition for Review on Certiorari with this Court. Subsequently, Maura filed a Motion for Leave to
Intervene,13 together with a Petition-in-Intervention.14

The instant petition raises the following assignment of errors:

THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT DENIED THE PETITIONERS APPEAL AND AFFIRMED THE
TRIAL COURTS DECISION DESPITE VERY CLEAR VIOLATIONS OF DUE PROCESS, DISREGARD OF THE RULES, AND
IRREGULARITIES IN THE APPOINTMENT OF RESPONDENT BIASON AS GUARDIAN;

II

THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT DENIED THE PETITIONERS APPEAL AND ERRONEOUSLY
UPHELD RESPONDENT BIASONS APPOINTMENT AS GUARDIAN BASED ON SOLE GROUND OF RESIDENCE, AND FAILED TO
CONSIDER THE REQUIREMENTS AND QUALIFICATIONS PRESCRIBED BY THE SUPREME COURT FOR THE APPOINTMENT OF
GUARDIAN.15

Abad contends that that CA erred in affirming the RTCs decision despite the fact that it did not hold any hearing to determine
whether Biason possessed all the qualifications for a guardian as provided by law. Further, he was not given the opportunity to
submit evidence to controvert Biasons appointment. 16
Abad also bewails his disqualification as guardian on the sole basis of his residence. He emphasizes that it is not a requirement for a
guardian to be a resident of the same locality as the ward, or to be living with the latter under the same roof in order to qualify for
the appointment. The more significant considerations are that the person to be appointed must be of good moral character and
must have the capability and sound judgment in order that he may be able to take care of the ward and prudently manage his
assets.17

Unfortunately, pending the resolution of the instant petition, Biason died. On May 11, 2012, Maura filed a Manifestation and
Motion,18 informing this Court that Biason passed away on April 3, 2012 at SDS Medical Center, Marikina City due to multiple organ
failure, septic shock, community acquired pneumonia high risk, prostate CA with metastasis, and attached a copy of his Death
Certificate.19 Maura averred that Biasons death rendered moot and academic the issues raised in the petition. She thus prayed that
the petition be dismissed and the guardianship be terminated.

On June 20, 2012, this Court issued a Resolution,20 requiring Abad to comment on the manifestation filed by Maura. Pursuant to the
Resolution, Abad filed his Comment21 on August 9, 2012 and expressed his acquiescence to Mauras motion to dismiss the petition.
He asseverated that the issues raised in the petition pertain to the irregularity in the appointment of Biason as guardian which he
believed had been rendered moot and academic by the latters death. He also supported Mauras prayer for the termination of the
guardianship by asseverating that her act of filing of a petition-in-intervention is indicative of the fact that she is of sound mind and
that she can competently manage her business affairs.

We find Mauras motion meritorious.

An issue or a case becomes moot and academic when it ceases to present a justiciable controversy, so that a determination of the
issue would be without practical use and value. In such cases, there is no actual substantial relief to which the petitioner would be
entitled and which would be negated by the dismissal of the petition. 22

In his petition, Abad prayed for the nullification of the CA Decision dated August 28, 2009 and Resolution dated April 19, 2010, which
dismissed his appeal from the Decision dated September 26, 2007 of the RTC and denied his motion for reconsideration,
respectively. Basically, he was challenging Biasons qualifications and the procedure by which the RTC appointed him as guardian for
Maura. However, with Biasons demise, it has become impractical and futile to proceed with resolving the merits of the petition. It is
a well-established rule that the relationship of guardian and ward is necessarily terminated by the death of either the guardian or
the ward.23 The supervening event of death rendered it pointless to delve into the propriety of Biasons appointment since the
juridical tie between him and Maura has already been dissolved. The petition, regardless of its disposition, will not afford Abad, or
anyone else for that matter, any substantial relief.1wphi1

Moreover, Abad, in his Comment, shared Mauras belief that the petition has lost its purpose and even consented to Mauras prayer
for the dismissal of the petition.

WHEREFORE, in consideration of the foregoing disquisitions, the petition is hereby DISMISSED.

SO ORDERED.

G.R. No. 185595 January 9, 2013

MA. CARMINIA C. CALDERON represented by her Attorney-In-Fact, Marycris V. Baldevia, Petitioner,

vs.
JOSE ANTONIO F. ROXAS and COURT OF APPEALS, Respondents.

DECISION

VILLARAMA, JR., J.:

Before us is a petition for review on certiorari under Rule 45 assailing the Decision 1 dated September 9, 2008 and Resolution2 dated
December 15, 2008 of the Court of Appeals (CA) in CA-G.R. CV No. 85384. The CA affirmed the Orders dated March 7, 2005 and May
4, 2005 of the Regional Trial Court (RTC) of Paraaque City, Branch 260 in Civil Case No. 97-0608.

Petitioner Ma. Carminia C. Calderon and private respondent Jose Antonio F. Roxas, were married on December 4, 1985 and their
union produced four children. On January 16, 1998, petitioner filed an Amended Complaint 3 for the declaration of nullity of their
marriage on the ground of psychological incapacity under Art. 36 of the Family Code of the Philippines.

On May 19, 1998, the trial court issued an Order4 granting petitioners application for support pendente lite. Said order states in
part:

Accordingly, the defendant is hereby ordered to contribute to the support of the above-named minors, (aside from 50% of their
school tuition fees which the defendant has agreed to defray, plus expenses for books and other school supplies), the sum of
P42,292.50 per month, effective May 1, 1998, as his share in the monthly support of the children, until further orders from this
Court. The first monthly contribution, i.e., for the month of May 1998, shall be given by the defendant to the plaintiff within five (5)
days from receipt of a copy of this Order. The succeeding monthly contributions of P42,292.50 shall be directly given by the
defendant to the plaintiff without need of any demand, within the first five (5) days of each month beginning June 1998. All
expenses for books and other school supplies shall be shouldered by the plaintiff and the defendant, share and share alike. Finally, it
is understood that any claim for support-in-arrears prior to May 1, 1998, may be taken up later in the course of the proceedings
proper.

xxxx

SO ORDERED.5

The aforesaid order and subsequent orders for support pendente lite were the subject of G.R. No. 139337 entitled "Ma. Carminia C.
Roxas v. Court of Appeals and Jose Antonio F. Roxas" decided by this Court on August 15, 2001. 6The Decision in said case declared
that "the proceedings and orders issued by the trial court in the application for support pendente lite (and the main complaint for
annulment of marriage) in the re-filed case, that is, in Civil Case No. 97-0608 were not rendered null and void by the omission of a
statement in the certificate of non-forum shopping regarding the prior filing and dismissal without prejudice of Civil Case No. 97-
0523 which involves the same parties." The assailed orders for support pendente lite were thus reinstated and the trial court
resumed hearing the main case.

On motion of petitioners counsel, the trial court issued an Order dated October 11, 2002 directing private respondent to give
support in the amount of P42,292.50 per month starting April 1, 1999 pursuant to the May 19, 1998 Order. 7

On February 11, 2003, private respondent filed a Motion to Reduce Support citing, among other grounds, that the P42,292.50
monthly support for the children as fixed by the court was even higher than his then P20,800.00 monthly salary as city councilor.8

After hearing, the trial court issued an Order 9 dated March 7, 2005 granting the motion to reduce support and denying petitioners
motion for spousal support, increase of the childrens monthly support pendente lite and support-in-arrears. The trial court
considered the following circumstances well-supported by documentary and testimonial evidence: (1) the spouses eldest child, Jose
Antonio, Jr. is a Sangguniang Kabataan Chairman and is already earning a monthly salary; (2) all the children stay with private
respondent on weekends in their house in Pasay City; (3) private respondent has no source of income except his salary and benefits
as City Councilor; (4) the voluminous documents consisting of official receipts in payment of various billings including school tuition
fees, private tutorials and purchases of childrens school supplies, personal checks issued by private respondent, as well as his own
testimony in court, all of which substantiated his claim that he is fulfilling his obligation of supporting his minor children during the
pendency of the action; (5) there is no proof presented by petitioner that she is not gainfully employed, the spouses being both
medical doctors; (6) the unrebutted allegation of private respondent that petitioner is already in the United States; and (7) the
alleged arrearages of private respondent was not substantiated by petitioner with any evidence while private respondent had duly
complied with his obligation as ordered by the court through his overpayments in other aspects such as the childrens school tuition
fees, real estate taxes and other necessities.

Petitioners motion for partial reconsideration of the March 7, 2005 Order was denied on May 4, 2005. 10

On May 16, 2005, the trial court rendered its Decision11 in Civil Case No. 97-0608 decreeing thus:

WHEREFORE, judgment is hereby rendered declaring (sic):

1. Declaring null and void the marriage between plaintiff Ma.Carmina C. Roxas and defendant Jose Antonio Roxas solemnized on
December 4, 1985 at San Agustin Convent, in Manila. The Local Civil Registrar of Manila is hereby ordered to cancel the marriage
contract of the parties as appearing in the Registry of Marriage as the same is void;

2. Awarding the custody of the parties minor children Maria Antoinette Roxas, Julian Roxas and Richard Roxas to their mother
herein petitioner, with the respondent hereby given his visitorial and or custodial rights at [sic] the express conformity of petitioner.

3. Ordering the respondent Jose Antonio Roxas to provide support to the children in the amount of P30,000.00 a month, which
support shall be given directly to petitioner whenever the children are in her custody, otherwise, if the children are in the provisional
custody of respondent, said amount of support shall be recorded properly as the amounts are being spent. For that purpose the
respondent shall then render a periodic report to petitioner and to the Court to show compliance and for monitoring. In addition,
the respondent is ordered to support the proper schooling of the children providing for the payment of the tuition fees and other
school fees and charges including transportation expenses and allowances needed by the children for their studies.

4. Dissolving the community property or conjugal partnership property of the parties as the case may be, in accordance with law.

Let copies of this decision be furnished the Office of the Solicitor General, the Office of the City Prosecutor, Paranaque City, and the
City Civil Registrar of Paranaque City and Manila.

SO ORDERED.12

On June 14, 2005, petitioner through counsel filed a Notice of Appeal from the Orders dated March 7, 2005 and May 4, 2005.
In her appeal brief, petitioner emphasized that she is not appealing the Decision dated May 16, 2005 which had become final as no
appeal therefrom had been brought by the parties or the City Prosecutor or the Solicitor General. Petitioner pointed out that her
appeal is "from the RTC Order dated March 7, 2005, issued prior to the rendition of the decision in the main case", as well as the
May 4, 2005 Order denying her motion for partial reconsideration. 13

By Decision dated September 9, 2008, the CA dismissed the appeal on the ground that granting the appeal would disturb the RTC
Decision of May 16, 2005 which had long become final and executory. The CA further noted that petitioner failed to avail of the
proper remedy to question an interlocutory order.

Petitioners motion for reconsideration was likewise denied by the CA.

Hence, this petition raising the following issues:

A. DID THE CA COMMIT A GRAVE ABUSE OF DISCRETION and/or REVERSIBLE ERROR WHEN IT RULED THAT THE RTC ORDERS
DATED MARCH 7, 2005 AND MAY 4, 2005 ARE MERELY INTERLOCUTORY?

B. DID THE CA COMMIT A GRAVE ABUSE OF DISCRETION and/or REVERSIBLE ERROR WHEN IT DISMISSED OUTRIGHT THE
APPEAL FROM SAID RTC ORDERS, WHEN IT SHOULD HAVE DECIDED THE APPEAL ON THE MERITS?14

The core issue presented is whether the March 7, 2005 and May 4, 2005 Orders on the matter of support pendente lite are
interlocutory or final.

This Court has laid down the distinction between interlocutory and final orders, as follows:

x x x A "final" judgment or order is one that finally disposes of a case, leaving nothing more to be done by the Court in respect
thereto, e.g., an adjudication on the merits which, on the basis of the evidence presented at the trial, declares categorically what the
rights and obligations of the parties are and which party is in the right; or a judgment or order that dismisses an action on the
ground, for instance, of res judicata or prescription. Once rendered, the task of the Court is ended, as far as deciding the controversy
or determining the rights and liabilities of the litigants is concerned. Nothing more remains to be done by the Court except to await
the parties next move (which among others, may consist of the filing of a motion for new trial or reconsideration, or the taking of an
appeal) and ultimately, of course, to cause the execution of the judgment once it becomes "final" or, to use the established and
more distinctive term, "final and executory."

xxxx

Conversely, an order that does not finally dispose of the case, and does not end the Courts task of adjudicating the parties
contentions and determining their rights and liabilities as regards each other, but obviously indicates that other things remain to be
done by the Court, is "interlocutory" e.g., an order denying a motion to dismiss under Rule 16 of the Rules, or granting a motion for
extension of time to file a pleading, or authorizing amendment thereof, or granting or denying applications for postponement, or
production or inspection of documents or things, etc. Unlike a "final" judgment or order, which is appealable, as above pointed out,
an "interlocutory" order may not be questioned on appeal except only as part of an appeal that may eventually be taken from the
final judgment rendered in the case.15 [Emphasis supplied]

The assailed orders relative to the incident of support pendente lite and support in arrears, as the term suggests, were issued
pending the rendition of the decision on the main action for declaration of nullity of marriage, and are therefore interlocutory. They
did not finally dispose of the case nor did they consist of a final adjudication of the merits of petitioners claims as to the ground of
psychological incapacity and other incidents as child custody, support and conjugal assets.

The Rules of Court provide for the provisional remedy of support pendente lite which may be availed of at the commencement of
the proper action or proceeding, or at any time prior to the judgment or final order. 16 On March 4, 2003, this Court promulgated the
Rule on Provisional Orders17 which shall govern the issuance of provisional orders during the pendency of cases for the declaration
of nullity of marriage, annulment of voidable marriage and legal separation. These include orders for spousal support, child support,
child custody, visitation rights, hold departure, protection and administration of common property.

Petitioner contends that the CA failed to recognize that the interlocutory aspect of the assailed orders pertains only to private
respondents motion to reduce support which was granted, and to her own motion to increase support, which was denied.
Petitioner points out that the ruling on support in arrears which have remained unpaid, as well as her prayer for
reimbursement/payment under the May 19, 1998 Order and related orders were in the nature of final orders assailable by ordinary
appeal considering that the orders referred to under Sections 1 and 4 of Rule 61 of the Rules of Court can apply only prospectively.
Thus, from the moment the accrued amounts became due and demandable, the orders under which the amounts were made
payable by private respondent have ceased to be provisional and have become final.

We disagree.

The word interlocutory refers to something intervening between the commencement and the end of the suit which decides some
point or matter but is not a final decision of the whole controversy. 18 An interlocutory order merely resolves incidental matters and
leaves something more to be done to resolve the merits of the case. In contrast, a judgment or order is considered final if the order
disposes of the action or proceeding completely, or terminates a particular stage of the same action. 19 Clearly, whether an order or
resolution is final or interlocutory is not dependent on compliance or non-compliance by a party to its directive, as what petitioner
suggests. It is also important to emphasize the temporary or provisional nature of the assailed orders.

Provisional remedies are writs and processes available during the pendency of the action which may be resorted to by a litigant to
preserve and protect certain rights and interests therein pending rendition, and for purposes of the ultimate effects, of a final
judgment in the case. They are provisional because they constitute temporary measures availed of during the pendency of the
action, and they are ancillary because they are mere incidents in and are dependent upon the result of the main action. 20 The
subject orders on the matter of support pendente lite are but an incident to the main action for declaration of nullity of marriage.

Moreover, private respondents obligation to give monthly support in the amount fixed by the RTC in the assailed orders may be
enforced by the court itself, as what transpired in the early stage of the proceedings when the court cited the private respondent in
contempt of court and ordered him arrested for his refusal/failure to comply with the order granting support pendente lite. 21 A few
years later, private respondent filed a motion to reduce support while petitioner filed her own motion to increase the same, and in
addition sought spousal support and support in arrears. This fact underscores the provisional character of the order granting support
pendente lite. Petitioners theory that the assailed orders have ceased to be provisional due to the arrearages incurred by private
respondent is therefore untenable.1wphi1

Under Section 1, Rule 41 of the 1997 Revised Rules of Civil Procedure, as amended, appeal from interlocutory orders is not allowed.
Said provision reads:

SECTION 1. Subject of appeal. - An appeal may be taken from a judgment or final order that completely disposes of the case, or of a
particular matter therein when declared by these Rules to be appealable.

No appeal may be taken from:

(a) An order denying a motion for new trial or reconsideration;

(b) An order denying a petition for relief or any similar motion seeking relief from judgment;

(c) An interlocutory order;

(d) An order disallowing or dismissing an appeal;

(e) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud,
mistake or duress, or any other ground vitiating consent;

(f) An order of execution;

(g) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims
and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and

(h) An order dismissing an action without prejudice;

In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special
civil action under Rule 65. (Emphasis supplied.)

The remedy against an interlocutory order not subject of an appeal is an appropriate special civil action under Rule 65 provided that
the interlocutory order is rendered without or in excess of jurisdiction or with grave abuse of discretion. Having chosen the wrong
remedy in questioning the subject interlocutory orders of the RTC, petitioner's appeal was correctly dismissed by the CA.

WHEREFORE, the petition for review on certiorari is DENIED, for lack of merit. The Decision dated September 9, 2008 and Resolution
dated December 15, 2008 of the Court of Appeals in CA-G.R. CV No. 85384 are AFFIRMED.

With costs against the petitioner.

SO ORDERED.

G.R. No. 190710 June 6, 2011

JESSE U. LUCAS, Petitioner,

vs.
JESUS S. LUCAS, Respondent.

DECISION
NACHURA, J.:

Is a prima facie showing necessary before a court can issue a DNA testing order? In this petition for review on certiorari, we address
this question to guide the Bench and the Bar in dealing with a relatively new evidentiary tool. Assailed in this petition are the Court
of Appeals (CA) Decision1 dated September 25, 2009 and Resolution dated December 17, 2009.

The antecedents of the case are, as follows:

On July 26, 2007, petitioner, Jesse U. Lucas, filed a Petition to Establish Illegitimate Filiation (with Motion for the Submission of
Parties to DNA Testing)2 before the Regional Trial Court (RTC), Branch 72, Valenzuela City. Petitioner narrated that, sometime in
1967, his mother, Elsie Uy (Elsie), migrated to Manila from Davao and stayed with a certain "Ate Belen (Belen)" who worked in a
prominent nightspot in Manila. Elsie would oftentimes accompany Belen to work. On one occasion, Elsie got acquainted with
respondent, Jesus S. Lucas, at Belens workplace, and an intimate relationship developed between the two. Elsie eventually got
pregnant and, on March 11, 1969, she gave birth to petitioner, Jesse U. Lucas. The name of petitioners father was not stated in
petitioners certificate of live birth. However, Elsie later on told petitioner that his father is respondent. On August 1, 1969,
petitioner was baptized at San Isidro Parish, Taft Avenue, Pasay City. Respondent allegedly extended financial support to Elsie and
petitioner for a period of about two years. When the relationship of Elsie and respondent ended, Elsie refused to accept
respondents offer of support and decided to raise petitioner on her own. While petitioner was growing up, Elsie made several
attempts to introduce petitioner to respondent, but all attempts were in vain.

Attached to the petition were the following: (a) petitioners certificate of live birth; (b) petitioners baptismal certificate; (c)
petitioners college diploma, showing that he graduated from Saint Louis University in Baguio City with a degree in Psychology; (d)
his Certificate of Graduation from the same school; (e) Certificate of Recognition from the University of the Philippines, College of
Music; and (f) clippings of several articles from different newspapers about petitioner, as a musical prodigy.

Respondent was not served with a copy of the petition. Nonetheless, respondent learned of the petition to establish filiation. His
counsel therefore went to the trial court on August 29, 2007 and obtained a copy of the petition.

Petitioner filed with the RTC a Very Urgent Motion to Try and Hear the Case. Hence, on September 3, 2007, the RTC, finding the
petition to be sufficient in form and substance, issued the Order 3 setting the case for hearing and urging anyone who has any
objection to the petition to file his opposition. The court also directed that the Order be published once a week for three
consecutive weeks in any newspaper of general circulation in the Philippines, and that the Solicitor General be furnished with copies
of the Order and the petition in order that he may appear and represent the State in the case.

On September 4, 2007, unaware of the issuance of the September 3, 2007 Order, respondent filed a Special Appearance and
Comment. He manifested inter alia that: (1) he did not receive the summons and a copy of the petition; (2) the petition was
adversarial in nature and therefore summons should be served on him as respondent; (3) should the court agree that summons was
required, he was waiving service of summons and making a voluntary appearance; and (4) notice by publication of the petition and
the hearing was improper because of the confidentiality of the subject matter. 4

On September 14, 2007, respondent also filed a Manifestation and Comment on Petitioners Very Urgent Motion to Try and Hear the
Case. Respondent reiterated that the petition for recognition is adversarial in nature; hence, he should be served with summons.

After learning of the September 3, 2007 Order, respondent filed a motion for reconsideration. 5 Respondent averred that the petition
was not in due form and substance because petitioner could not have personally known the matters that were alleged therein. He
argued that DNA testing cannot be had on the basis of a mere allegation pointing to respondent as petitioners father. Moreover,
jurisprudence is still unsettled on the acceptability of DNA evidence.

On July 30, 2008, the RTC, acting on respondents motion for reconsideration, issued an Order 6 dismissing the case. The court
remarked that, based on the case of Herrera v. Alba,7 there are four significant procedural aspects of a traditional paternity action
which the parties have to face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance
between the putative father and the child. The court opined that petitioner must first establish these four procedural aspects before
he can present evidence of paternity and filiation, which may include incriminating acts or scientific evidence like blood group test
and DNA test results. The court observed that the petition did not show that these procedural aspects were present. Petitioner
failed to establish a prima facie case considering that (a) his mother did not personally declare that she had sexual relations with
respondent, and petitioners statement as to what his mother told him about his father was clearly hearsay; (b) the certificate of live
birth was not signed by respondent; and (c) although petitioner used the surname of respondent, there was no allegation that he
was treated as the child of respondent by the latter or his family. The court opined that, having failed to establish a prima facie case,
respondent had no obligation to present any affirmative defenses. The dispositive portion of the said Order therefore reads:

WHEREFORE, for failure of the petitioner to establish compliance with the four procedural aspects of a traditional paternity action in
his petition, his motion for the submission of parties to DNA testing to establish paternity and filiation is hereby denied. This case is
DISMISSED without prejudice.

SO ORDERED.8

Petitioner seasonably filed a motion for reconsideration to the Order dated July 30, 2008, which the RTC resolved in his favor. Thus,
on October 20, 2008, it issued the Order9 setting aside the courts previous order, thus:
WHEREFORE, in view of the foregoing, the Order dated July 30, 2008 is hereby reconsidered and set aside.

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

xxxx

SO ORDERED.10

This time, the RTC held that the ruling on the grounds relied upon by petitioner for filing the petition is premature considering that a
full-blown trial has not yet taken place. The court stressed that the petition was sufficient in form and substance. It was verified, it
included a certification against forum shopping, and it contained a plain, concise, and direct statement of the ultimate facts on
which petitioner relies on for his claim, in accordance with Section 1, Rule 8 of the Rules of Court. The court remarked that the
allegation that the statements in the petition were not of petitioners personal knowledge is a matter of evidence. The court also
dismissed respondents arguments that there is no basis for the taking of DNA test, and that jurisprudence is still unsettled on the
acceptability of DNA evidence. It noted that the new Rule on DNA Evidence11 allows the conduct of DNA testing, whether at the
courts instance or upon application of any person who has legal interest in the matter in litigation.

Respondent filed a Motion for Reconsideration of Order dated October 20, 2008 and for Dismissal of Petition, 12reiterating that (a)
the petition was not in due form and substance as no defendant was named in the title, and all the basic allegations were hearsay;
and (b) there was no prima facie case, which made the petition susceptible to dismissal.

The RTC denied the motion in the Order dated January 19, 2009, and rescheduled the hearing.13

Aggrieved, respondent filed a petition for certiorari with the CA, questioning the Orders dated October 20, 2008 and January 19,
2009.

On September 25, 2009, the CA decided the petition for certiorari in favor of respondent, thus:

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

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

The CA remarked that petitioner filed the petition to establish illegitimate filiation, specifically seeking a DNA testing order to
abbreviate the proceedings. It noted that petitioner failed to show that the four significant procedural aspects of a traditional
paternity action had been met. The CA further held that a DNA testing should not be allowed when the petitioner has failed to
establish a prima facie case, thus:

While the tenor [of Section 4, Rule on DNA Evidence] appears to be absolute, the rule could not really have been intended to
trample on the substantive rights of the parties. It could have not meant to be an instrument to promote disorder, harassment, or
extortion. It could have not been intended to legalize unwarranted expedition to fish for evidence. Such will be the situation in this
particular case if a court may at any time order the taking of a DNA test. If the DNA test in compulsory recognition cases is
immediately available to the petitioner/complainant without requiring first the presentation of corroborative proof, then a dire and
absurd rule would result. Such will encourage and promote harassment and extortion.

xxxx

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

Petitioner moved for reconsideration. On December 17, 2009, the CA denied the motion for lack of merit. 16

In this petition for review on certiorari, petitioner raises the following issues:

I.
 WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RESOLVED THE ISSUE OF LACK OF JURISDICTION OVER THE
PERSON OF HEREIN RESPONDENT ALBEIT THE SAME WAS NEVER RAISED IN THE PETITION FOR CERTIORARI.

I.A

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RULED THAT JURISDICTION WAS NOT ACQUIRED
OVER THE PERSON OF THE RESPONDENT.

I.B

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT FAILED TO REALIZE THAT THE RESPONDENT HAD
ALREADY SUBMITTED VOLUNTARILY TO THE JURISDICTION OF THE COURT A QUO.

I.C

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY RULED THAT THE TITLE OF A PLEADING,
RATHER THAN ITS BODY, IS CONTROLLING.

II.

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ORDERED THE DISMISSAL OF THE PETITION BY REASON OF THE
MOTION (FILED BY THE PETITIONER BEFORE THE COURT A QUO) FOR THE CONDUCT OF DNA TESTING.

II.A

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY RULED THAT DNA TESTING CAN ONLY BE
ORDERED AFTER THE PETITIONER ESTABLISHES PRIMA FACIE PROOF OF FILIATION.

III.

WHETHER OR NOT THE COURT OF APPEALS ERRED WITH ITS MISPLACED RELIANCE ON THE CASE OF HERRERA VS. ALBA,

ESPECIALLY AS REGARDS THE FOUR SIGNIFICANT PROCEDURAL ASPECTS OF A TRADITIONAL PATERNITY ACTION. 17

Petitioner contends that respondent never raised as issue in his petition for certiorari the courts lack of jurisdiction over his person.
Hence, the CA had no legal basis to discuss the same, because issues not raised are deemed waived or abandoned. At any rate,
respondent had already voluntarily submitted to the jurisdiction of the trial court by his filing of several motions asking for
affirmative relief, such as the (a) Motion for Reconsideration of the Order dated September 3, 2007; (b) Ex Parte Motion to Resolve
Motion for Reconsideration of the Order dated November 6, 2007; and (c) Motion for Reconsideration of the Order dated October
20, 2008 and for Dismissal of Petition. Petitioner points out that respondent even expressly admitted that he has waived his right to
summons in his Manifestation and Comment on Petitioners Very Urgent Motion to Try and Hear the Case. Hence, the issue is
already moot and academic.

Petitioner argues that the case was adversarial in nature. Although the caption of the petition does not state respondents name, the
body of the petition clearly indicates his name and his known address. He maintains that the body of the petition is controlling and
not the caption.

Finally, petitioner asserts that the motion for DNA testing should not be a reason for the dismissal of the petition since it is not a
legal ground for the dismissal of cases. If the CA entertained any doubt as to the propriety of DNA testing, it should have simply
denied the motion.18 Petitioner points out that Section 4 of the Rule on DNA Evidence does not require that there must be a prior
proof of filiation before DNA testing can be ordered. He adds that the CA erroneously relied on the four significant procedural
aspects of a paternity case, as enunciated in Herrera v. Alba. 19Petitioner avers that these procedural aspects are not applicable at
this point of the proceedings because they are matters of evidence that should be taken up during the trial. 20

In his Comment, respondent supports the CAs ruling on most issues raised in the petition for certiorari and merely reiterates his
previous arguments. However, on the issue of lack of jurisdiction, respondent counters that, contrary to petitioners assertion, he
raised the issue before the CA in relation to his claim that the petition was not in due form and substance. Respondent denies that
he waived his right to the service of summons. He insists that the alleged waiver and voluntary appearance was conditional upon a
finding by the court that summons is indeed required. He avers that the assertion of affirmative defenses, aside from lack of
jurisdiction over the person of the defendant, cannot be considered as waiver of the defense of lack of jurisdiction over such person.

The petition is meritorious.

Primarily, we emphasize that the assailed Orders of the trial court were orders denying respondents motion to dismiss the petition
for illegitimate filiation. An order denying a motion to dismiss is an interlocutory order which neither terminates nor finally disposes
of a case, as it leaves something to be done by the court before the case is finally decided on the merits. As such, the general rule is
that the denial of a motion to dismiss cannot be questioned in a special civil action for certiorari, which is a remedy designed to
correct errors of jurisdiction and not errors of judgment. Neither can a denial of a motion to dismiss be the subject of an appeal
unless and until a final judgment or order is rendered. In a number of cases, the court has granted the extraordinary remedy of
certiorari on the denial of the motion to dismiss but only when it has been tainted with grave abuse of discretion amounting to lack
or excess of jurisdiction.21 In the present case, we discern no grave abuse of discretion on the part of the trial court in denying the
motion to dismiss.

The grounds for dismissal relied upon by respondent were (a) the courts lack of jurisdiction over his person due to the absence of
summons, and (b) defect in the form and substance of the petition to establish illegitimate filiation, which is equivalent to failure to
state a cause of action.

We need not belabor the issues on whether lack of jurisdiction was raised before the CA, whether the court acquired jurisdiction
over the person of respondent, or whether respondent waived his right to the service of summons. We find that the primordial issue
here is actually whether it was necessary, in the first place, to serve summons on respondent for the court to acquire jurisdiction
over the case. In other words, was the service of summons jurisdictional? The answer to this question depends on the nature of
petitioners action, that is, whether it is an action in personam, in rem, or quasi in rem.

An action in personam is lodged against a person based on personal liability; an action in rem is directed against the thing itself
instead of the person; while an action quasi in rem names a person as defendant, but its object is to subject that person's interest in
a property to a corresponding lien or obligation. A petition directed against the "thing" itself or the res, which concerns the status of
a person, like a petition for adoption, annulment of marriage, or correction of entries in the birth certificate, is an action in rem.22

In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case.
In a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on
the court, provided that the latter has jurisdiction over the res. Jurisdiction over the res is acquired either (a) by the seizure of the
property under legal process, whereby it is brought into actual custody of the law, or (b) as a result of the institution of legal
proceedings, in which the power of the court is recognized and made effective. 23

The herein petition to establish illegitimate filiation is an action in rem. By the simple filing of the petition to establish illegitimate
filiation before the RTC, which undoubtedly had jurisdiction over the subject matter of the petition, the latter thereby acquired
jurisdiction over the case. An in rem proceeding is validated essentially through publication. Publication is notice to the whole world
that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort to the right
sought to be established.24 Through publication, all interested parties are deemed notified of the petition.

If at all, service of summons or notice is made to the defendant, it is not for the purpose of vesting the court with jurisdiction, but
merely for satisfying the due process requirements. 25 This is but proper in order to afford the person concerned the opportunity to
protect his interest if he so chooses.26 Hence, failure to serve summons will not deprive the court of its jurisdiction to try and decide
the case. In such a case, the lack of summons may be excused where it is determined that the adverse party had, in fact, the
opportunity to file his opposition, as in this case. We find that the due process requirement with respect to respondent has been
satisfied, considering that he has participated in the proceedings in this case and he has the opportunity to file his opposition to the
petition to establish filiation.

To address respondents contention that the petition should have been adversarial in form, we further hold that the herein petition
to establish filiation was sufficient in form. It was indeed adversarial in nature despite its caption which lacked the name of a
defendant, the failure to implead respondent as defendant, and the non-service of summons upon respondent. A proceeding is
adversarial where the party seeking relief has given legal warning to the other party and afforded the latter an opportunity to
contest it.27 In this petitionclassified as an action in remthe notice requirement for an adversarial proceeding was likewise
satisfied by the publication of the petition and the giving of notice to the Solicitor General, as directed by the trial court.

The petition to establish filiation is sufficient in substance. It satisfies Section 1, Rule 8 of the Rules of Court, which requires the
complaint to contain a plain, concise, and direct statement of the ultimate facts upon which the plaintiff bases his claim. A fact is
essential if it cannot be stricken out without leaving the statement of the cause of action inadequate. 28 A complaint states a cause of
action when it contains the following elements: (1) the legal right of plaintiff, (2) the correlative obligation of the defendant, and (3)
the act or omission of the defendant in violation of said legal right. 29

The petition sufficiently states the ultimate facts relied upon by petitioner to establish his filiation to respondent. Respondent,
however, contends that the allegations in the petition were hearsay as they were not of petitioners personal knowledge. Such
matter is clearly a matter of evidence that cannot be determined at this point but only during the trial when petitioner presents his
evidence.

In a motion to dismiss a complaint based on lack of cause of action, the question submitted to the court for determination is the
sufficiency of the allegations made in the complaint to constitute a cause of action and not whether those allegations of fact are
true, for said motion must hypothetically admit the truth of the facts alleged in the complaint. 30

The inquiry is confined to the four corners of the complaint, and no other. 31 The test of the sufficiency of the facts alleged in the
complaint is whether or not, admitting the facts alleged, the court could render a valid judgment upon the same in accordance with
the prayer of the complaint.32
If the allegations of the complaint are sufficient in form and substance but their veracity and correctness are assailed, it is incumbent
upon the court to deny the motion to dismiss and require the defendant to answer and go to trial to prove his defense. The veracity
of the assertions of the parties can be ascertained at the trial of the case on the merits. 33

The statement in Herrera v. Alba34 that there are four significant procedural aspects in a traditional paternity case which parties have
to face has been widely misunderstood and misapplied in this case. A party is confronted by these so-called procedural aspects
during trial, when the parties have presented their respective evidence. They are matters of evidence that cannot be determined at
this initial stage of the proceedings, when only the petition to establish filiation has been filed. The CAs observation that petitioner
failed to establish a prima facie casethe first procedural aspect in a paternity caseis therefore misplaced. A prima facie case is
built by a partys evidence and not by mere allegations in the initiatory pleading.

Clearly then, it was also not the opportune time to discuss the lack of a prima facie case vis--vis the motion for DNA testing since no
evidence has, as yet, been presented by petitioner. More essentially, it is premature to discuss whether, under the circumstances, a
DNA testing order is warranted considering that no such order has yet been issued by the trial court. In fact, the latter has just set
the said case for hearing.

At any rate, the CAs view that it would be dangerous to allow a DNA testing without corroborative proof is well taken and deserves
the Courts attention. In light of this observation, we find that there is a need to supplement the Rule on DNA Evidence to aid the
courts in resolving motions for DNA testing order, particularly in paternity and other filiation cases. We, thus, address the question
of whether a prima facie showing is necessary before a court can issue a DNA testing order.

The Rule on DNA Evidence was enacted to guide the Bench and the Bar for the introduction and use of DNA evidence in the judicial
system. It provides the "prescribed parameters on the requisite elements for reliability and validity (i.e., the proper procedures,
protocols, necessary laboratory reports, etc.), the possible sources of error, the available objections to the admission of DNA test
results as evidence as well as the probative value of DNA evidence." It seeks "to ensure that the evidence gathered, using various
methods of DNA analysis, is utilized effectively and properly, [and] shall not be misused and/or abused and, more importantly, shall
continue to ensure that DNA analysis serves justice and protects, rather than prejudice the public." 35

Not surprisingly, Section 4 of the Rule on DNA Evidence merely provides for conditions that are aimed to safeguard the accuracy and
integrity of the DNA testing. Section 4 states:

SEC. 4. Application for DNA Testing Order. The appropriate court may, at any time, either motu proprio or on application of any
person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to
the parties upon a showing of the following:

(a) A biological sample exists that is relevant to the case;

(b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously
subjected to DNA testing, but the results may require confirmation for good reasons;

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

(d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the
case; and

(e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of
the DNA testing.

This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party, including law enforcement
agencies, before a suit or proceeding is commenced.

This does not mean, however, that a DNA testing order will be issued as a matter of right if, during the hearing, the said conditions
are established.

In some states, to warrant the issuance of the DNA testing order, there must be a show cause hearing wherein the applicant must
first present sufficient evidence to establish a prima facie case or a reasonable possibility of paternity or "good cause" for the
holding of the test. 36 In these states, a court order for blood testing is considered a "search," which, under their Constitutions (as in
ours), must be preceded by a finding of probable cause in order to be valid. Hence, the requirement of a prima facie case, or
reasonable possibility, was imposed in civil actions as a counterpart of a finding of probable cause. The Supreme Court of Louisiana
eloquently explained

Although a paternity action is civil, not criminal, the constitutional prohibition against unreasonable searches and seizures is still
applicable, and a proper showing of sufficient justification under the particular factual circumstances of the case must be made
before a court may order a compulsory blood test. Courts in various jurisdictions have differed regarding the kind of procedures
which are required, but those jurisdictions have almost universally found that a preliminary showing must be made before a court
can constitutionally order compulsory blood testing in paternity cases. We agree, and find that, as a preliminary matter, before the
court may issue an order for compulsory blood testing, the moving party must show that there is a reasonable possibility of
paternity. As explained hereafter, in cases in which paternity is contested and a party to the action refuses to voluntarily undergo a
blood test, a show cause hearing must be held in which the court can determine whether there is sufficient evidence to establish
a prima facie case which warrants issuance of a court order for blood testing.371avvphi1

The same condition precedent should be applied in our jurisdiction to protect the putative father from mere harassment suits. Thus,
during the hearing on the motion for DNA testing, the petitioner must present prima facie evidence or establish a reasonable
possibility of paternity.

Notwithstanding these, it should be stressed that the issuance of a DNA testing order remains discretionary upon the court. The
court may, for example, consider whether there is absolute necessity for the DNA testing. If there is already preponderance of
evidence to establish paternity and the DNA test result would only be corroborative, the court may, in its discretion, disallow a DNA
testing.

WHEREFORE, premises considered, the petition is GRANTED. The Court of Appeals Decision dated September 25, 2009 and
Resolution dated December 17, 2009 are REVERSED and SET ASIDE. The Orders dated October 20, 2008 and January 19, 2009 of the
Regional Trial Court of Valenzuela City are AFFIRMED.

SO ORDERED.